Black'sLaw4th

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Black'sLaw4th

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PREFACE
REVISED FOURTH EDITION
THE sustained and growing popularity of BLACK'S LAW DICTION-
ARY since its appearance more than seventy five years ago is a strik-
iig tribute to the scholarship and learning of Henry Campbell Black,
and to the essential soundness of the plan adopted by him for the
compilation of a legal lexicon.
In accordance with the original plan of this work, consistently
adhered to in all subsequent editions, the law student, confronted in
his casebooks with reports from the Year Books, or with extracts
from Glanvil, Bracton, Littleton, or Coke, will find in this dictionary
an unusually complete collection of definitions of terms used in old
English, European, and feudal law. The student will also find in this
volume, on page 1795, a useful Table of British Regnal Years, listing
the sovereigns of England for more than 900 years, together with the
date of accession to the throne, and the length of reign.
BLACK'S LAW DICTIONARY has proven its value through the
years to the busy practitioner, judge and law student who requires
quick and convenient access to the meanings of legal terms and phras-
es found in statutes or judicial opinions, as well as to the special legal
meanings of standard English words—meanings which frequently can-
not be found in the ordinary English language dictionaries.
In the period of more than thirty five years since the publication
of the Third Edition, the law has undergone substantial changes and
developments. The vocabulary of the law has shown corresponding
change and growth. A word, in the often quoted dictum of Mr. Justice
Holmes, is "the skin of a living thought," and the words of statutes
and judicial opinions reflect the contemporary thinking of legislators
and jurists. In order adequately to represent this thinking in the
fourth edition, a patient examination was made of the thousands of
opinions handed down by the appellate courts each year. Some revi-
sions and additions have been included in this Revised Fourth Edi-
tion
Abbreviations of common words and phrases likely to be en-
countered by the user are explained in appropriate places throughout
the main body of the work. A Table of Abbreviations of the titles of
law reports, textbooks, and other legal literature is contained in the
back of the volume and a Guide to Pronunciation is included in the
front of the volume.
New features in this Revised Fourth Edition include the follow-
ing:
Code of Professional Responsibility
Canons of Judicial Ethics
An Outline of the Minimum Requirements for
Admission to Legal Practice in the United States
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GUIDE TO PRONUNCIATION
A NOTE ON PRONUNCIATION OF LATIN
One of the difficulties in pronouncing legal terms is that one com-
monly hears both the English system and the Roman system of pro-
nouncing Latin words. Before 1900, the English pronunciation of
Latin had developed for legal, medical, and other scientific terms.
During the second half of the nineteenth century, scholars estab-
lished that what is now known as the Roman pronunciation was used
between 50 B.C. and 50 A.D. Nearly all schools in English-speaking
countries adopted the Roman system of pronunciation. But by and
large, the English pronunciation has persisted among lawyers, physi-
cians, and scientists.
The main difference between the Roman and the English pro-
nunciation of Latin is in the long sounds of a, e, and i. In English
these sounds are a, ë, and I; in Roman, a is a; e is a; and i is -6.
The dominant usage among lawyers today is probably the English
pronunciation, but the Roman system taught in the schools still has
its influence. Lawyers who studied Latin in school often tend toward
the Roman, and others often tend toward the English. Yet nearly
all use both systems, or variations from both systems, to some extent.
For instance, many lawyers use the English pronunciation,
réz jo–O'di-kalia, but many lawyers prefer to say raz
is neither English nor Roman but a mixture. The Roman ras
yOrYdl-ca-ta is seldom if ever heard. Probably all lawyers use the
English ha'be-as corpus or ha'bèz corpus; a lawyer who tries to get
his client out of jail by asking for a writ of ha'bd-as corpus might not
be understood. Yet the prevailing practice is probably to use the
Roman d-më'cils cure-I, and not the English d-mi'cils cferi-ë. One
usually hears the mixture, sine qua non; one seldom if ever hears the
English One qua non.
The following list is devoted mostly but not altogether to Latin
words. For those words the English pronunciation is always in first
place, followed by the Roman or a variation of the Roman when-
ever it is known to be widely used. The English pronunciation is
never incorrect in the view of lexicographers, although local or gen-
eral usage may often cause some lawyers to prefer a pronunciation
other than the English. As the study of Latin in the schools declines
still further, the English pronunciation is likely to continue to increase.
If a uniform system is ever achieved, it is much more likely to
be the English than the Roman.
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CODE OF PROFESSIONAL RESPONSIBILITY *
Table of Contents
Page
PREAMBLE AND PRELIMINARY STATEMENT .............. ......... XVII
CANON 1. A LAWYER SHOULD ASSIST IN MAINTAINING THE
INTEGRITY AND COMPETENCE OF THE LEGAL PRO-
FESSION ............................................................. ........XIX
Ethical Considerations .......................................................... ........XIX
Disciplinary Rules ................................................................ .........XX
DR 1-101 Maintaining Integrity and Competence of the Legal
Profession ............................................................... XX
DR 1-102 Misconduct .................................................... ......... XX
DR 1-103 Disclosure of Information to Authorities ......... ........XXI
CANON 2. A LAWYER SHOULD ASSIST THE LEGAL PROFESSION
IN FULFILLING ITS DUTY TO MAKE LEGAL COUNSEL
AVAILABLE .................................................................XXI
Ethical Considerations ............................................................ ........XXI
Recognition of Legal Problems ........................................ ........XXI
Selection of a Lawyer: Generally ......................... ......... XXIII
Selection of a Lawyer: Professional Notices and Listings . XXIII
Financial Ability to Employ Counsel: Generally .....................XXV
Financial Ability to Employ Counsel:
Persons Able to Pay Reasonable Fees ....................... .......XXV
Financial Ability to Employ Counsel:
Persons Unable to Pay Reasonable Fees ......... ......... XXVII
Acceptance and Retention of Employment ............ ......... XXVIII
Disciplinary Rules ...................................................... .............. XXIX
DR 2-101 Publicity in General ............................ .............. XXIX
DR 2-102 Professional Notices, Letterheads, Offices, and Law
Lists ................................................... .............. XX IX
DR 2-103 Recommendation of Professional Employment XXXII
DR 2-104 Suggestion of Need of Legal Services ......... XXXIII
DR 2-105 Limitation of Practice .................................. XXXIII
DR 2-106 Fees for Legal Services ...................... ........ XXXIV
DR 2-107 Division of Fees Among Lawyers ........ ........ XXXIV
DR 2-108 Agreements Restricting the Practice of a Lawyer XXXV
DR 2-109 Acceptance of Employment ................. ........ XXXV
DR 2-110 Withdrawal from Employment ........... ........ XXXV
CANON 3. A LAWYER SHOULD ASSIST IN PREVENTING THE
UNAUTHORIZED PRACTICE OF LAW .............. XXXVI
Ethical Considerations ......................................................... XXXVI
Disciplinary Rules ....................................................... ........ XXXVIII
DR 3-101 Aiding Unauthorized Practice of Law .. ........ XXXVIII
DR 3-102 Dividing Legal Fees with a Non-Lawyer ........ XXXVIII
DR 3-103 Forming a Partnership with a Non-Lawyer . . XXXVIII
* Adopted by the American Bar Association at annual meeting in
Dallas, Texas, on Aug. 12, 1969. Copyrighted by American Bar
Association. Published with permission.
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CODE OF PROFESSIONAL RESPONSIBILITY
Page
CANON 4. A LAWYER SHOULD PRESERVE THE CONFIDENCES
AND SECRETS OF A CLIENT ............................ XXXVIII
Ethical Considerations ................................................. ........ XXXVIII
Disciplinary Rules ...................................................... ........ XXXIX
DR 4-101 Preservation of Confidences and Secrets of a
Client ......................................................... XXXIX
CANON 5. A LAWYER SHOULD EXERCISE INDEPENDENT PRO-
FESSIONAL JUDGMENT ON BEHALF OF A CLIENT XLI
Ethical Considerations ....................................................................XLI
Interests of a Lawyer That May Affect His Judgment .................XLI
Interests of Multiple Clients ................................ ................XLIII
Desires of Third Persons .............................................. ........ XLV
Disciplinary Rules ...................................................................... XLVI
DR 5-101 Refusing Employment When the Interests of the
Lawyer May Impair His Independent Professional
Judgment ............................................ ................ XLVI
DR 5-102 Withdrawal as Counsel When the Lawyer Becomes
a Witness ............................................................. XLVI
DR 5-103 Avoiding Acquisition of Interest in Litigation . XLVI
DR 5-104 Limiting Business Relations with a Client .... XLVII
DR 5-105 Refusing to Accept or Continue Employment if the
Interests of Another Client May Impair the Inde-
pendent Professional Judgment of the Lawyer .. XLVII
DR 5-106 Settling Similar Claims of Clients ....................... XLVII
DR 5-107 Avoiding Influence by Others Than the Client XLVII
CANON 6. A LAWYER SHOULD REPRESENT A CLIENT COM-
PETENTLY ........................................................ XLVIII
Ethical Considerations .......................................................... XLVIII
Disciplinary Rules ...................................................................... XLIX
DR 6-101 Failing to Act Competently ................................... XLIX
DR 6-102 Limiting Liability to Client .......................... ....... XLIX
CANON 7. A LAWYER SHOULD REPRESENT A CLIENT ZEALOUS-
LY WITHIN THE BOUNDS OF THE LAW ......... XLIX
Ethical Considerations .......................................................... ....... XLIX
Duty of the Lawyer to a Client .................................................LI
Duty of the Lawyer to the Adversary System of Justice .. LIV
Disciplinary Rules ....................................................... ...............LVIII
DR 7-101 Representing a Client Zealously ........................LVIII
DR 7-102 Representing a Client within the Bounds of the Law LVIII
DR 7-103 Performing the Duty of Public Prosecutor or Other
Government Lawyer ...............................................LIX
DR 7-104 Communicating with One of Adverse Interest . LIX
DR 7-105 Threatening Criminal Prosecution ...........................LIX
DR 7-106 Trial Conduct ...................................... ...................LIX
DR 7-107 Trial Publicity .........................................................LX
DR 7-108 Communication with or Investigation of Jurors LXII
DR 7-109 Contact with Witnesses ....................................... LXII
DR 7-110 Contact with Officials .......................... ................. LXII
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CODE OF PROFESSIONAL RESPONSIBILITY
With amendments to February 24, 1970
PREAMBLE AND PRELIMINARY
STATEMENT
Preamble 1
The continued existence of a free and democratic
society depends upon recognition of the concept
that justice is based upon the rule of law grounded
in respect for the dignity of the individual and his
capacity through reason for enlightened self-gov-
ernment. 2 Law so grounded makes justice possi-
ble, for only through such law does the dignity of
the individual attain respect and protection. With-
out it, individual rights become subject to unre-
strained power, respect for law is destroyed, and
rational self-government is impossible.
Lawyers, as guardians of the law, play a vital
role in the preservation of society. The fulfillment
of this role requires an understanding by lawyers
of their relationship with and function in our legal
system. 3 A consequent obligation of lawyers is
to maintain the highest standards of ethical con-
duct.
In fulfilling his professional responsibilities, a
lawyer necessarily assumes various roles that re-
quire the performance of many difficult tasks.
Not every situation which he may encounter can
be foreseen, 4 but fundamental ethical principles
are always present to guide him. Within the
framework of these principles, a lawyer must with
courage and foresight be able and ready to shape
the body of the law to the ever-changing relation-
ships of society.5
1 The footnotes are intended merely to enable the reader
to relate the provisions of this Code to the ABA Canons of
Professional Ethics adopted in 1908, as amended, the Opin-
ions of the ABA Committee on Professional Ethics, and a
limited number of other sources; they are not intended
to be an annotation of the views taken by the ABA Special
Committee on Evaluation of Ethical Standards. Footnotes
citing ABA Canons refer to the ABA Canons of Professional
Ethics, adopted in 1908, as amended.
2 Cf. ABA Canons, Preamble.
3 "[T]he lawyer stands today in special need of a clear
understanding of his obligations and of the vital connection
between those obligations and the role his profession plays
in society." Professional Responsibility: Report of the
Joint Conference, 44 A.B.A.J. 1159, 1160 (1958).
4 "No general statement of the responsibilities of the legal
profession can encompass all the situations in which the
lawyer may be placed. Each position held by him makes
its own peculiar demands. These demands the lawyer must
clarify for himself in the light of the particular role in
which he serves." Professional Responsibility: Report of
the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).
The Code of Professional Responsibility points
the way to the aspiring and provides standards by
which to judge the transgressor. Each lawyer
must find within his own conscience the touch-
stone against which to test the extent to which his
actions should rise above minimum standards.
But in the last analysis it is the desire for the re-
spect and confidence of the members of his pro-
fession and of the society which he serves that
should provide to a lawyer the incentive for the
highest possible degree of ethical conduct. The
possible loss of that respect and confidence is the
ultimate sanction. So long as its practitioners are
guided by these principles, the law will continue to
be a noble profession. This is its greatness and its
strength, which permit of no compromise.
Preliminary Statement
In furtherance of the principles stated in the
Preamble, the American Bar Association has
promulgated this Code of Professional Responsi-
bility, consisting of three separate but interrelated
parts: Canons, Ethical Considerations, and Dis-
ciplinary Rules. 6 The Code is designed to be
adopted by appropriate agencies both as an in-
spirational guide to the members of the profession
and as a basis for disciplinary action when the
conduct of a lawyer falls below the required min-
imum standards stated in the Disciplinary Rules.
Obviously the Canons, Ethical Considerations,
and Disciplinary Rules cannot apply to non-law-
yers; however, they do define the type of ethical
conduct that the public has a right to expect not
5 "The law and its institutions change as social condi-
tions change. They must change if they are to preserve,
much less advance, the political and social values from
which they derive their purposes and their life. This is
true of the most important of legal institutions, the pro-
fession of law. The profession, too, must change when
conditions change in order to preserve and advance the
social values that are its reasons for being." Cheatham,
Availability of Legal Services: The Responsibility of the
Individual Lawyer and the Organized Bar, 12 U.C.L.A.L.
Rev. 438, 440 (1965).6 The Supreme Court of Wisconsin adopted a Code of
Judicial Ethics in 1967. "The code is divided into stand-
ards and rules, the standards being statements of what
the general desirable level of conduct should be, the rules
being particular canons, the violation of which shall sub-
ject an individual judge to sanctions." In re Promulgation
of a Code of Judicial Ethics, 36 Wis.2d 252, 255, 153 N.W.
2d 873, 874 (1967).
The portion of the Wisconsin Code of Judicial Ethics
entitled "Standards" states that "[t]he following stand-
ards set forth the significant qualities of the ideal judge
. . . ." Id., 36 Wis.2d at 256, 153 N.W.2d at 875. The
portion entitled "Rules" states that "[t]he court promul-
gates the following rules because the requirements of Judi-
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CODE OF PROFESSIONAL RESPONSIBILITY
only of lawyers but also of their non-professional
employees and associates in all matters pertaining
to professional employment. A lawyer should
ultimately be responsible for the conduct of his
employees and associates in the course of the pro-
fessional representation of the client.
The Canons are statements of axiomatic norms,
expressing in general terms the standards of pro-
fessional conduct expected of lawyers in their rela-
tionships with the public, with the legal system,
and with the legal profession. They embody the
general concepts from which the Ethical Consid-
erations and the Disciplinary Rules are derived.
The Ethical Considerations are aspirational in
character and represent the objectives toward
which every member of the profession should
strive. They constitute a body of principles upon
which the lawyer can rely for guidance in many
specific situations.7
The Disciplinary Rules, unlike the Ethical Con-
siderations, are mandatory in character. The Dis-
ciplinary Rules state the minimum level of con-
duct below which no lawyer can fall without being
subject to disciplinary action. Within the frame-
cial conduct embodied therein are of sufficient gravity to
warrant sanctions if they are not obeyed . . . ." Id.,
36 Wis.2d at 259, 153 N.W.2d at 876.
7 "Under the conditions of modern practice it is peculiar-
ly necessary that the lawyer should understand, not mere-
ly the established standards of professional conduct, but
the reasons underlying these standards. Today the lawyer
plays a changing and increasingly varied role. In many
developing fields the precise contribution of the legal pro-
fession is as yet undefined." Professional Responsibility:
Report of the Joint Conference, 44 A.B.A.J. 1159 (1958).
"A true sense of professional responsibility must derive
from an understanding of the reasons that lie back of
specific restraints, such as those embodied in the Canons.
The grounds for the lawyer's peculiar obligations are to
be found in the nature of his calling. The lawyer who
seeks a clear understanding of his duties will be led to
reflect on the special services his profession renders to so-
ciety and the services it might render if its full capacities
were realized. When the lawyer fully understands the
nature of his office, he will then discern what restraints
are necessary to keep that office wholesome and effective."
Id.
8 "Disbarment, designed to protect the public, is a punish-
ment or penalty imposed on the lawyer. . . . He is
accordingly entitled to procedural due process, which in-
cludes fair notice of the charge." In re Ruffalo, 390 U.S.
544, 550, 20 L.Ed.2d 117, 122, 88 S.Ct. 1222, 1226 (1968),
rehearing denied, 391 U.S. 961, 20 L.Ed.2d 874, 88 S.Ct.
1833 (1968).
"A State cannot exclude a person from the practice of
law or from any other occupation in a manner or for rea-
sons that contravene the Due Process or Equal Protection
Clause of the Fourteenth Amendment. . . . A State
can require high standards of qualification . . . but
any qualification must have a rational connection with the
applicant's fitness or capacity to practice law." Schware
v. Bd. of Bar Examiners, 353 U.S. 232, 239, 1 L.Ed.2d 796,
801-02, 77 S.Ct. 752, 756 (1957).
"[A]n accused lawyer may expect that he will not be
condemned out of a capricious self-righteousness or denied
the essentials of a fair hearing." Kingsland v. Dorsey, 338
U. S. 318, 320, 94 L. Ed. 123, 126, 70 S.Ct. 123, 124-25 (1949).
"The attorney and counsellor being, by the solemn judi-
cial act of the court, clothed with his office, does not hold
work of fair trial, 8 the Disciplinary Rules should
be uniformly applied to all lawyers, 9 regardless of
the nature of their professional activities. 10 The
Code makes no attempt to prescribe either dis-
ciplinary procedures or penalties 11 for violation of
a Disciplinary Rule, 12 nor does it undertake to de-
fine standards for civil liability of lawyers for
professional conduct. The severity of judgment
against one found guilty of violating a Disciplinary
Rule should be determined by the character of
the offense and the attendant circumstances. 13 An
enforcing agency, in applying the Disciplinary
Rules, may find interpretive guidance in the basic
principles embodied in the Canons and in the ob-
jectives reflected in the Ethical Considerations.
it as a matter of grace and favor. The right which it con-
fers upon him to appear for suitors, and to argue causes,
is something more than a mere indulgence, revocable at
the pleasure of the court, or at the command of the legisla-
ture. It is a right of which he can only be deprived by
the judgment of the court, for moral or professional de-
linquency." Ex parte Garland, 71 U.S. (4 Wall.) 333, 378-
79, 18 L. Ed. 366, 370 (1866).
See generally Comment, Procedural Due Process and
Character Hearings for Bar Applicants, 15 Stan.L.Rev. 500
(1963).
9 "The canons of professional ethics must be enforced
by the Courts and must be respected by members of the
Bar if we are to maintain public confidence in the in-
tegrity and impartiality of the administration of justice."
In re Meeker, 76 N.M. 354, 357, 414 P.2d 862, 864 (1966),
appeal dismissed, 385 U.S. 449 (1967).
10 See ABA Canon 45.
"The Canons of this Association govern all its members,
irrespective of the nature of their practice, and the appli-
cation of the Canons is not affected by statutes or regula-
tions governing certain activities of lawyers which may
prescribe less stringent standards." ABA Comm. on Pro-
fessional Ethics, OPINIONS, No. 203 (1940) [hereinafter
each Opinion is cited as "ABA Opinion"].
Cf. ABA Opinion 152 (1936).
11 "There is generally no prescribed discipline for any
particular type of improper conduct. The disciplinary
measures taken are discretionary with the courts, which
may disbar, suspend, or merely censure the attorney as
the nature of the offense and past indicia of character may
warrant." Note, 43 Cornell L.Q. 489, 495 (1958).
12 The Code seeks only to specify conduct for which a
lawyer should be disciplined. Recommendations as to the
procedures to be used in disciplinary actions and the grav-
ity of disciplinary measures appropriate for violations of
the Code are within the jurisdiction of the American Bar
Association Special Committee on Evaluation of Dis-
ciplinary Enforcement.
13 "The severity of the judgment of this court should be
in proportion to the gravity of the offenses, the moral
turpitude involved, and the extent that the defendant's acts
and conduct affect his professional qualifications to prac-
tice law." Louisiana State Bar Ass'n v. Steiner, 204 La.
1073, 1092-93, 16 So.2d 843, 850 (1944) (Higgins, J., con-
curring in decree).
"Certainly an erring lawyer who has been disciplined
and who having paid the penalty has given satisfactory
evidence of repentance and has been rehabilitated and re-
stored to his place at the bar by the court which knows
him best ought not to have what amounts to an order of
permanent disbarment entered against him by a federal
court solely on the basis of an earlier criminal record and
without regard to his subsequent rehabilitation and pres-
ent good character . . .. We think, therefore, that
the district court should reconsider the appellant's appli-
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CODE OF PROFESSIONAL RESPONSIBILITY
CANON 1
A Lawyer Should Assist in Maintaining the
Integrity and Competence of the
Legal Profession
ETHICAL CONSIDERATIONS
EC 1-1 A basic tenet of the professional respon-
sibility of lawyers is that every person in our so-
ciety should have ready access to the independent
professional services of a lawyer of integrity and
competence. Maintaining the integrity and im-
proving the competence of the bar to meet the
highest standards is the ethical responsibility of
every lawyer.
EC 1-2 The public should be protected from those
who are not qualified to be lawyers by reason of
a deficiency in education 1 or moral standards 2
or of other relevant factors 3 but who nevertheless
cation for admission and grant it unless the court finds
it to be a fact that the appellant is not presently of good
moral or professional character." In re Dreier, 258 F.2d
68, 69-70 (3d Cir. 1958).
1 "[W]e cannot conclude that all educational restrictions
[on bar admission] are unlawful. We assume that few
would deny that a grammar school education requirement,
before taking the bar examination, was reasonable. Or
that an applicant had to be able to read or write. Once
we conclude that some restriction is proper, then it becomes
a matter of degree—the problem of drawing the line.
"We conclude the fundamental question here is whether
Rule IV, Section 6 of the Rules Pertaining to Admission
of Applicants to the State Bar of Arizona is 'arbitrary,
capricious and unreasonable.' We conclude an educational
requirement of graduation from an accredited law school
is not." Hackin v. Lockwood, 361 F.2d 499, 503-04 (9th
Cir. 1966), cert. denied, 385 U.S. 960, 17 L.Ed.2d 305, 87
S.Ct. 396 (1966).
2 "Every state in the United States, as a prerequisite for
admission to the practice of law, requires that applicants
possess 'good moral character.' Although the requirement
is of judicial origin, it is now embodied in legislation in
most states." Comment, Procedural Due Process and Char-
acter Hearings for Bar Applicants, 15 Stan.L.Rev. 500
(1963).
"Good character in the members of the bar is essential
to the preservation of the integrity of the courts. The
duty and power of the court to guard its portals against
intrusion by men and women who are mentally and morally
dishonest, unfit because of bad character, evidenced by
their course of conduct, to participate in the administra-
tive law, would seem to be unquestioned in the matter of
preservation of judicial dignity and integrity." In re
Monaghan, 126 Vt. 53, 222 A.2d 665, 670 (1966).
"Fundamentally, the question involved in both situa-
tions [i.e. admission and disciplinary proceedings] is the
same—is the applicant for admission or the attorney sought
to be disciplined a fit and proper person to be permitted
to practice law, and that usually turns upon whether he
has committed or is likely to continue to commit acts of
moral turpitude. At the time of oral argument the at-
torney for respondent frankly conceded that the test for
admission and for discipline is and should be the same.
We agree with this concession." Hallinan v. Comm. of
Bar Examiners, 65 Cal.2d 447, 453, 421 P.2d 76, 81, 55 Cal.
Rptr. 228, 233 (1966).
3 "Proceedings to gain admission to the bar are for the
purpose of protecting the public and the courts from the
ministrations of persons unfit to practice the profession.
Attorneys are officers of the court appointed to assist the
seek to practice law. To assure the maintenance
of high moral and educational standards of the
legal profession, lawyers should affirmatively as-
sist courts and other appropriate bodies in pro-
mulgating, enforcing, and improving requirements
for admission to the bar. 4 In like manner, the bar
has a positive obligation to aid in the continued
improvement of all phases of pre-admission and
post-admission legal education.
EC 1-3 Before recommending an applicant for
admission, a lawyer should satisfy himself that
the applicant is of good moral character. Although
a lawyer should not become a self-appointed in-
vestigator or judge of applicants for admission,
he should report to proper officials all unfavor-
able information he possesses relating to the
character or other qualifications of an applicant.5
EC 1-4 The integrity of the profession can be
maintained only if conduct of lawyers in violation
of the Disciplinary Rules is brought to the atten-
tion of the proper officials. A lawyer should re-
veal voluntarily to those officials all unprivileged
knowledge of conduct of lawyers which he believes
clearly to be in violation of the Disciplinary
Rules.6 A lawyer should, upon request, serve on
and assist committees and boards having responsi-
bility for the administration of the Disciplinary
Rules."'
EC 1-5 A lawyer should maintain high standards
of professional conduct and should encourage fel-
low lawyers to do likewise. He should be temper-
ate and dignified, and he should refrain from all
court in the administration of justice. Into their hands
are committed the property, the liberty and sometimes
the lives of their clients. This commitment demands a
high degree of intelligence, knowledge of the law, respect
for its function in society, sound and faithful judgment
and, above all else, integrity of character in private and
professional conduct." In re Monaghan, 126 Vt. 53, 222
A.2d 665, 676 (1966) (Holden, C. J., dissenting).
4 "A bar composed of lawyers of good moral character
is a worthy objective but it is unnecessary to sacrifice vital
freedoms in order to obtain that goal. It is also important
both to society and the bar itself that lawyers be unin-
timidated—free to think, speak, and act as members of an
Independent Bar." Konigsberg v. State Bar, 353 U.S. 252,
273, 1 L.Ed.2d 810, 825, 77 S.Ct. 722, 733 (1957).
5 See ABA Canon 29.
6 ABA Canon 28 designates certain conduct as unpro-
fessional and then states that : "A duty to the public and
to the profession devolves upon every member of the Bar
having knowledge of such practices upon the part of any
practitioner immediately to inform thereof, to the end
that the offender may be disbarred." ABA Canon 29
states a broader admonition : "Lawyers should expose
without fear or favor before the proper tribunals corrupt
or dishonest conduct in the profession."
7 "It is the obligation of the organized Bar and the in-
dividual lawyer to give unstinted cooperation and assistance
to the highest court of the state in discharging its function
and duty with respect to discipline and in purging the
profession of the unworthy." Report of the Special Com-
mittee on Disciplinary Procedures, 80 A.B.A.Rep. 463, 470
(1955).
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CODE OF PROFESSIONAL RESPONSIBILITY
illegal and morally reprehensible conduct. 8 Be-
cause of his position in society, even minor viola-
tions of law by a lawyer may tend to lessen public
confidence in the legal profession. Obedience to
law exemplifies respect for law. To lawyers es-
pecially, respect for the law should be more than a
platitude.
EC 1-6 An applicant for admission to the bar or
a lawyer may be unqualified, temporarily or per-
manently, for other than moral and educational
reasons, such as mental or emotional instability.
Lawyers should be diligent in taking steps to see
that during a period of disqualification such per-
son is not granted a license or, if licensed, is not
permitted to practice. 9 In like manner, when the
disqualification has terminated, members of the
bar should assist such person in being licensed, or,
if licensed, in being restored to his full right to
practice.
DISCIPLINARY RULES
DR 1-101 Maintaining Integrity and Competence
of the Legal Profession.
(A) A lawyer is subject to discipline if he has
made a materially false statement in, or if
he has deliberately failed to disclose a ma-
terial fact requested in connection with, his
application for admission to the bar.'°
g Cf. ABA Canon 32.
9 "We decline, on the present record, to disbar Mr. Sher-
man or to reprimand him—not because we condone his ac-
tions, but because, as heretofore indicated, we are con-
cerned with whether he is mentally responsible for what
he has done.
"The logic of the situation would seem to dictate the
conclusion that, if he was mentally responsible for the
conduct we have outlined, he should be disbarred; and,
if he was not mentally responsible, he should not be per-
mitted to practice law.
"However, the flaw in the logic is that he may have
been mentally irresponsible [at the time of his offensive
conduct] . . ., and, yet, have sufficiently improved in
the almost two and one-half years intervening to be able
to capably and competently represent his clients. .
"We would make clear that we are satisfied that a case
has been made against Mr. Sherman, warranting a refusal
to permit him to further practice law in this state unless
he can establish his mental irresponsibility at the time of
the offenses charged. The burden of proof is upon him.
"If he establishes such mental irresponsibility, the bur-
den is then upon him to establish his present capability
to practice law." In re Sherman, 58 Wash.2d 1, 6-7, 354
P.2d 888, 890 (1960), cert. denied. 371 U.S. 951, 9 L.Ed.2d
499, 83 S.Ct. 506 (1963).
10 "This Court has the inherent power to revoke a license
to practice law in this State, where such license was issued
by this Court, and its issuance was procured by the fraud-
ulent concealment, or by the false and fraudulent repre-
sentation by the applicant of a fact which was manifestly
material to the issuance of the license." North Carolina
ex rel. Attorney General v. Gorson, 209 N.C. 320, 326, 183
S.E. 392, 395 (1936), cert. denied, 298 U.S. 662, 80 L.Ed.
1387, 56 S.Ct. 752 (1936).
See also Application of Patterson, 318 P.2d 907, 913 (Or.
1957), cert. denied, 356 U.S. 947, 2 L.Ed.2d 822, 78 S.Ct.
795 (1958).
(B) A lawyer shall not further the application for
admission to the bar of another person known
by him to be unqualified in respect to char-
acter, education, or other relevant attribute."
DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through
actions of another.12
(3) Engage in illegal conduct involving
moral turpitude.13
11 See ABA Canon 29.
12 In ABA Opinion 95 (1933), which held that a municipal
attorney could not permit police officers to interview per-
sons with claims against the municipality when the at-
torney knew the claimants to be represented by counsel,
the Committee on Professional Ethics said :
"The law officer is, of course, responsible for the acts
of those in his department who are under his supervision
and control." Opinion 85. In re Robinson, 136 N.Y.S. 548
(affirmed 209 N.Y. 354-1912) held that it was a matter of
disbarment for an attorney to adopt a general course of
approving the unethical conduct of employees of his client,
even though he did not actively participate therein,
". .  'The attorney should not advise or sanction
acts by his client which he himself should not do.' Opinion
75."
13 "The most obvious non-professional ground for dis-
barment is conviction for a felony. Most states make con-
viction for a felony grounds for automatic disbarment.
Some of these states, including New York, make disbar-
ment mandatory upon conviction for any felony, while
others require disbarment only for those felonies which
involve moral turpitude. There are strong arguments that
some felonies, such as involuntary manslaughter, reflect
neither on an attorney's fitness, trustworthiness, nor com-
petence and, therefore, should not be grounds for disbar-
ment, but most states tend to disregard these arguments
and, following the common law rule, make disbarment
mandatory on conviction for any felony." Note, 43 Cornell
L.Q. 489, 490 (1958).
"Some states treat conviction for misdemeanors as
grounds for automatic disbarment . . .. However, the
vast majority, accepting the common law rule, require
that the misdemeanor involve moral turpitude. While the
definition of moral turpitude may prove difficult, it seems
only proper that those minor offenses which do not affect
the attorney's fitness to continue in the profession should
not be grounds for disbarment. A good example is an
assault and battery conviction which would not involve
moral turpitude unless done with malice and deliberation."
Id. at 491.
"The term 'moral turpitude' has been used in the law
for centuries. It has been the subject of many decisions
by the courts but has never been clearly defined because
of the nature of the term. Perhaps the best general defi-
nition of the term 'moral turpitude' is that it imports an
act of baseness, vileness or depravity in the duties which
one person owes to another or to society in general, which
is contrary to the usual, accepted and customary rule of
right and duty which a person should follow. 58 C.J.S.
at page 1201. Although offenses against revenue laws
have been held to be crimes of moral turpitude, it has also
been held that the attempt to evade the payment of taxes
due to the government or any subdivision thereof, while
wrong and unlawful, does not involve moral turpitude. 58
C.J.S. at page 1205." Comm. on Legal Ethics v. Scheer,
149 W.Va. 721, 726-27, 143 S.E.2d 141, 145 (1965).
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(4) Engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to
the administration of justice.
(6) Engage in any other conduct that ad-
versely reflects on his fitness to prac-
tice law.14
DR 1-103 Disclosure of Information to Authori-
ties.
(A) A lawyer possessing unprivileged knowledge
of a violation of DR 1-102 shall report such
knowledge to a tribunal or other authority
empowered to investigate or act upon such
violation.15
(B) A lawyer possessing unprivileged knowledge
or evidence concerning another lawyer or a
judge shall reveal fully such knowledge or
evidence upon proper request of a tribunal or
other authority empowered to investigate or
act upon the conduct of lawyers or judges.16
CANON 2
A Lawyer Should Assist the Legal Profession
in Fulfilling Its Duty to Make Legal
Counsel Available
ETHICAL CONSIDERATIONS
EC 2-1 The need of members of the public for
legal services 1 is met only if they recognize their
"The right and power to discipline an attorney, as one
of its officers, is inherent in the court. . . . This pow-
er is not limited to those instances of misconduct wherein
he has been employed, or has acted, in a professional ca-
pacity; but, on the contrary, this power may be exercised
where his misconduct outside the scope of his professional
relations shows him to be an unfit person to practice law."
In re Wilson, 391 S.W.2d 914, 917-18 (Mo. 1965).
14 "It is a fair characterization of the lawyer's responsi-
bility in our society that he stands 'as a shield,' to quote
Devlin, J., in defense of right and to ward off wrong.
From a profession charged with these responsibilities there
must be exacted those qualities of truth-speaking, of a high
sense of honor, of granite discretion, of the strictest ob-
servance of fiduciary responsibility, that have, throughout
the centuries, been compendiously described as 'moral char-
acter' ". Schware v. Bd. of Bar Examiners, 353 U.S. 232,
247 L.Ed.2d 796, 806, 77 S.Ct. 752, 761 (1957) (Frankfurter,
J., concurring).
"Particularly applicable here is Rule 4.47 providing that
'A lawyer should always maintain his integrity; and shall
not willfully commit any act against the interest of the
Public; nor shall he violate his duty to the courts or his
clients; nor shall he, by any misconduct, commit any of-
fense against the laws of Missouri or the United States
of America, which amounts to a crime involving acts done
by him contrary to justice, honesty, modesty or good
morals; nor shall he be guilty of any other misconduct
whereby, for the protection of the public and those
charged with the administration of justice, he should no
longer be entrusted with the duties and responsibilities
belonging to the office of an attorney.' " In re Wilson,
391 S.W.2d 914, 917 (Mo. 1965).
15 See ABA Canon 29; cf. ABA Canon 28.
16 Cf. ABA Canons 28 and 29.
1 "Men have need for more than a system of law; they
have need for a system of law which functions, and that
legal problems, appreciate the importance of seek-
ing assistance, 2 and are able to obtain the services
of acceptable legal counsel. 3 Hence, important
functions of the legal profession are to educate
laymen to recognize their legal problems, to facili-
tate the process of intelligent selection of lawyers,
and to assist in making legal services fully avail-
able.4
Recognition of Legal Problems
EC 2-2 The legal profession should assist laymen
to recognize legal problems because such prob-
lems may not be self-revealing and often are not
means they have need for lawyers." Cheatham, The Law-
yer's Role and Surroundings, 25 Rocky Mt.L.Rev. 405
(1953).
2 "Law is not self-applying; men must apply and utilize
it in concrete cases. But the ordinary man is incapable.
He cannot know the principles of law or the rules guiding
the machinery of law administration; he does not know
how to formulate his desires with precision and to put
them into writing; he is ineffective in the presentation of
his claims." Cheatham, The Lawyer's Role and Surround-
ings, 25 Rocky Mt.L.Rev. 405 (1953).
3 "This need [to provide legal services] was recognized
by . . . Mr. [Lewis F.] Powell [Jr., President, Amer-
ican Bar Association, 1963-64], who said: 'Looking at
contemporary America realistically, we must admit that
despite all our efforts to date (and these have not been
insignificant), far too many persons are not able to obtain
equal justice under law. This usually results because their
poverty or their ignorance has prevented them from ob-
taining legal counsel.' " Address by E. Clinton Bamberger,
Association of American Law Schools 1965 Annual Meeting,
Dec. 28, 1965, in Proceedings, Part II, 1965, 61, 63-64 (1965).
"A wide gap separates the need for legal services and
its satisfaction, as numerous studies reveal. Looked at
from the side of the layman, one reason for the gap is
poverty and the consequent inability to pay legal fees.
Another set of reasons is ignorance of the need for and
the value of legal services, and ignorance of where to
find a dependable lawyer. There is fear of the mysterious
processes and delays of the law, and there is fear of over-
reaching and overcharging by lawyers, a fear stimulated
by the occasional exposure of shysters." Cheatham, Avail-
ability of Legal Services: The Responsibility of the In-
dividual Lawyer and of the Organized Bar, 12 U.C.L.A.L.
Rev. 438 (1965).
4 "It is not only the right but the duty of the profession
as a whole to utilize such methods as may be developed to
bring the services of its members to those who need them.
so long as this can be done ethically and with dignity."
ABA Opinion 320 (1968).
"[T]here is a responsibility on the bar to make legal
services available to those who need them. The maxim,
'privilege brings responsibilities,' can be expanded to read,
exclusive privilege to render public service brings responsi-
bility to assure that the service is available to those in
need of it." Cheatham, Availability of Legal Services:
The Responsibility of the Individual Lawyer and of the
Organized Bar, 12 U.C.L.A.L.Rev. 438, 443 (1965).
"The obligation to provide legal services for those ac-
tually caught up in litigation carries with it the obligation
to make preventive legal advice accessible to all. It is
among those unaccustomed to business affairs and fearful
of the ways of the law that such advice is often most need-
ed. If it is not received in time, the most valiant and
skillful representation in court may come too late." Pro-
fessional Responsibility: Report of the Joint Conference,
44 A.B.A.J. 1159, 1216 (1958).
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timely noticed. 5 Therefore, lawyers acting under
proper auspices should encourage and participate
in educational and public relations programs con-
cerning our legal system with particular reference
to legal problems that frequently arise. Such ed-
ucational programs should be motivated by a desire
to benefit the public rather than to obtain publicity
or employment for particular lawyers.° Examples
of permissible activities include preparation of
institutional advertisements 7 and professional arti-
cles for lay publications 8 and participation in
5 "Over a period of years institutional advertising of pro-
grams for the benefit of the public have been approved by
this and other Ethics Committees as well as by the courts.
"To the same effect are opinions of this Committee :
Opinion 179 dealing with radio programs presenting a sit
uation in which legal advice is suggested in connection
with a drafting of a will; Opinions 205 and 227 permitting
institutional advertising of lawyer referral plans; Opinion
191 holding that advertising by lawyer members of a non-
bar associated sponsored plan violated Canon 27. The Illi-
nois Ethics Committee, in its Opinion 201, sustained bar
association institutional advertising of a check-up plan
"This Committee has passed squarely on the question of
the propriety of institutional advertising in connection
with a legal check-up plan. Informal Decision C-171 quotes
with express approval the Michigan Ethics Committee as
follows :
As a public service, the bar has in the past addressed
the public as to the importance of making wills, consult-
ing counsel in connection with real estate transactions,
etc. In the same way, the bar, as such, may recommend
this program, provided always that it does it in such a
way that there is not suggestion of solicitation on behalf
of any individual lawyer."
ABA Opinion 307 (1962).
6 "We recognize a distinction between teaching the lay
public the importance of securing legal services preventive
in character and the solicitation of professional employment
by or for a particular lawyer. The former tends to pro-
mote the public interest and enhance the public estimation
of the profession. The latter is calculated to injure the
public and degrade the profession.
"Advertising which is calculated to teach the layman the
benefits and advantages of preventive legal services will
benefit the lay public and enable the lawyer to render a
more desirable and beneficial professional service. . . ."
ABA Opinion 179 (1938).
7 "[A bar association] may engage in a dignified institu-
tional educational campaign so long as it does not involve
the identification of a particular lawyer with the check-up
program. Such educational material may point out the
value of the annual check-up and may be printed in news-
papers, magazines, pamphlets, and brochures, or produced
by means of films, radio, television or other media. The
printed materials may be distributed in a dignified way
through the offices of persons having close dealings with
lawyers as, for example, banks, real estate agents, insur-
ance agents and others. They may be available in law-
yers' offices. The bar association may prepare and dis-
tribute to lawyers materials and forms for use in the
annual legal check-up." ABA Opinion 307 (1962).
8 "A lawyer may with propriety write articles for publi-
cations in which he gives information upon the law
.." ABA Canon 40.
"The newsletters, by means of which respondents are
alleged to have advertised their wares, were sent to the
officers of union clients represented by their firm.
seminars, lectures, and civic programs. But a law-
yer who participates in such activities should
shun personal publicity.9
EC 2-3 Whether a lawyer acts properly in vol-
unteering advice to a layman to seek legal services
depends upon the circumstances. 10 The giving of
advice that one should take legal action could well
be in fulfillment of the duty of the legal profession
to assist laymen in recognizing legal problems.11
The advice is proper only if motivated by a desire
to protect one who does not recognize that he may
have legal problems or who is ignorant of his legal
rights or obligations. Hence, the advice is im-
proper if motivated by a desire to obtain personal
benefit, 12 secure personal publicity, or cause liti-
gation to be brought merely to harass or injure
another. Obviously, a lawyer should not contact
They contain no reference to any cases handled by the
respondents. Their contents are confined to rulings of
boards, commissions and courts on problems of interest
to labor union, together with proposed and completed leg-
islation important to the Brotherhood, and other items
which might affect unions and their members. The re-
spondents cite Opinion 213 of the Committee on Profession-
al Ethics and Grievances as permitting such practice. After
studying this opinion, we agree that sending of newsletters
of the above type to regular clients does not offend Canon
27." In re Ratner, 194 Kan. 362, 371, 399 P.2d 865, 872-73
(1965).
Cf. ABA Opinion 92 (1933).
9 Cf. ABA Opinions 307 (1962) and 179 (1938).
"There is no ethical or other valid reason why an attor-
ney may not write articles on legal subjects for magazines
and newspapers. The fact that the publication is a trade
journal or magazine, makes no difference as to the ethical
question involved. On the other hand, it would be un-
ethical and contrary to the precepts of the Canons for the
attorney to allow his name to be carried in the magazine
or other publication . . . as a free legal adviser for
the subscribers to the publication. Such would be contrary
to Canons 27 and 35 and Opinions heretofore announced
by the Committee on Professional Ethics and Grievances.
(See Opinions 31, 41, 42, and 56)." ABA Opinion 162 (1936).
10 See ABA Canon 28.
11 This question can assume constitutional dimensions :
"We meet at the outset the contention that 'solicitation'
is wholly outside the area of freedoms protected by the
First Amendment. To this contention there are two an-
swers. The first is that a State cannot foreclose the ex-
ercise of constitutional rights by mere labels. The second
is that abstract discussion is not the only species of com-
munication which the Constitution protects; the First
Amendment also protects vigorous advocacy, certainly of
lawful ends, against governmental intrusion. .
"However valid may be Virginia's interest in regulating
the traditionally illegal practice of barratry, maintenance
and champerty, that interest does not justify the prohibi-
tion of the NAACP activities discrosed by this record. Ma-
licious intent was of the essence of the common-law offens-
es of fomenting or stirring up litigation. And whatever
may be or may have been true of suits against governments
in other countries, the exercise in our own, as in this case
of First Amendment rights to enforce Constitutional rights
through litigation, as a matter of law, cannot be deemed
malicious." NAACP v. Button, 371 U.S. 415, 429, 439-40,
9 L.Ed.2d 405, 415-16, 422, 83 S.Ct. 328, 336, 341 (1963).
12 See ABA Canon 27.
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a non-client, directly or indirectly, for the purpose
of being retained to represent him for compensa-
tion.
EC 2-4 Since motivation is subjective and often
difficult to judge, the motives of a lawyer who vol-
unteers advice likely to produce legal controversy
may well be suspect if he receives professional em-
ployment or other benefits as a result. 13 A lawyer
who volunteers advice that one should obtain the
services of a lawyer generally should not himself
accept employment, compensation, or other benefit
in connection with that matter. However, it is
not improper for a lawyer to volunteer such ad-
vice and render resulting legal services to close
friends, relatives, former clients (in regard to mat-
ters germane to former employment), and regular
clients.14
EC 2-5 A lawyer who writes or speaks for the
purpose of educating members of the public to
recognize their legal problems should carefully
refrain from giving or appearing to give a general
solution applicable to all apparently similar in-
dividual problems, 15 since slight changes in fact
situations may require a material variance in the
applicable advice; otherwise, the public may be
misled and misadvised. Talks and writings by
lawyers for laymen should caution them not to
attempt to solve individual problems upon the basis
of the information contained therein.10
13 "The Canons of Professional Ethics of the American
Bar Association and the decisions of the courts quite gen-
erally prohibit the direct solicitation of business for gain
by an attorney either through advertisement or personal
communication; and also condemn the procuring of busi-
ness by indirection through touters of any kind. It is
disreputable for an attorney to breed litigation by seeking
out those who have claims for personal injuries or other
grounds of action in order to secure them as clients, or
to employ agents or runners, or to reward those who bring
or influence the bringing of business to his office. . . .
Moreover, it tends quite easily to the institution of base-
less litigation and the manufacture of perjured testimony.
From early times, this danger has been recognized in the
law by the condemnation of the crime of common barratry,
or the stirring up of suits or quarrels between individuals
at law or otherwise." In re Ades, 6 F.Supp. 467, 474-75
(D. Mary. 1934).
14 "Rule 2.
"§a. . . .
"[A] member of the State Bar shall not solicit profes-
sional employment by
"(1) Volunteering counsel or advice except where ties
of blood relationship or trust make it appropriate." Cal.
Business and Professions Code § 6076 (West 1962).
15 "Rule 18 . . . A member of the State Bar shall not
advise inquirers or render opinions to them through or in
connection with a newspaper, radio or other publicity
medium of any kind in respect to their specific legal prob-
lems, whether or not such attorney shall be compensated
for his services." Cal.Business and Professions Code § 6076
(West 1962).
16 "In any case where a member might well apply the
advice given in the opinion to his individual affairs, the
lawyer rendering the opinion [concerning problems com-
mon to members of an association and distributed to the
members through a periodic bulletin] should specifically
state that this opinion should not be relied on by any
Selection of a Lawyer: Generally
EC 2-6 Formerly a potential client usually knew
the reputations of local lawyers for competency
and integrity and therefore could select a prac-
titioner in whom he had confidence. This tradi-
tional selection process worked well because it was
initiated by the client and the choice was an in-
formed one.
EC 2-7 Changed conditions, however, have seri-
ously restricted the effectiveness of the traditional
selection process. Often the reputations of law-
yers are not sufficiently known to enable laymen
to make intelligent choices. 17 The law has become
increasingly complex and specialized. Few law-
yers are willing and competent to deal with every
kind of legal matter, and many laymen have diffi-
culty in determining the competence of lawyers
to render different types of legal services. The
selection of legal counsel is particularly difficult
for transients, persons moving into new areas,
persons of limited education or means, and others
who have little or no contact with lawyers.18
EC 2-8 Selection of a lawyer by a layman often
is the result of the advice and recommendation
of third parties—relatives, friends, acquaintances,
business associates, or other lawyers. A layman
is best served if the recommendation is disinterest-
ed and informed. In order that the recommenda-
tion be disinterested, a lawyer should not seek to
influence another to recommend his employment.10
A lawyer should not compensate another person
for recommending him, for influencing a prospec-
tive client to employ him, or to encourage future
recommendations.20
Selection of a Lawyer: Professional Notices and
Listings
EC 2-9 The traditional ban against advertising by
lawyers, which is subject to certain limited excep-
tions, is rooted in the public interest. Competitive
advertising would encourage extravagant, artful,
self-laudatory 21 brashness in seeking business and
member as a basis for handling his individual affairs, but
that in every case he should consult his counsel. In the
publication of the opinion the association should make a
similar statement." ABA Opinion 273 (1946).
17 "A group of recent interrelated changes bears directly
on the availability of legal services. . . . [One] change
is the constantly accelerating urbanization of the country
and the decline of personal and neighborhood knowledge of
whom to retain as a professional man." Cheatham, Avail-
ability of Legal Services: The Responsibility of the In-
dividual Lawyer and of the Organized Bar, 12 U.C.L.A.L.
Rev. 438, 440 (1965).
18 Cf. Cheatham, A Lawyer When Needed: Legal Services
for the Middle Classes, 63 Colum.L.Rev. 973, 974 (1963).
19 See ABA Canon 27.
20 See ABA Canon 28.
21 " 'Self-laudation' is a very flexible concept; Canon 27
does not define it, so what course of conduct would be said
to constitute it under a given state of facts would no doubt
vary as the opinions of men vary. As a famous English
judge said, it would vary as the length of the chancellor's
foot. It must be in words and tone that will 'offend the
traditions and lower the tone of our profession.' When it
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thus could mislead the layman. 22 Furthermore,
it would inevitably produce unrealistic expecta-
tions in particular cases and bring about distrust
of the law and lawyers. 23  Thus, public confidence
in our legal system would be impaired by such
advertisements of professional services. The at-
torney-client relationship is personal and unique
and should not be established as the result of
pressures and deceptions. 24  History has demon-
strated that public confidence in the legal system is
best preserved by strict, self-imposed controls over,
rather than by unlimited, advertising.
does this, it is 'reprehensible.' This seems to be the test
by which 'self-laudation' is measured." State v. Nichols,
151 So.2d 257, 259 (Fla. 1963).
22 "Were it not for the prohibitions of . . . [Canon
27] lawyers could, and no doubt would be forced to, en-
gage competitively in advertising of all kinds in which
each would seek to explain to the public why he could
serve better and accomplish more than his brothers at the
Bar.
"Susceptible as we are to advertising the public would
then be encouraged to choose an attorney on the basis of
which had the better, more attractive advertising program
rather than on his reputation for professional ability.
"This would certainly maim, if not destroy, the dignity
and professional status of the Bar of this State." State v.
Nichols, 151 So.2d 257, 268 (Fla. 1963) (O'Connell, J., con-
curring in part and dissenting in part).
23 Cf. ABA Canon 8.
24 "The prohibition of advertising by lawyers deserves
some examination. All agree that advertising by an in-
dividual lawyer, if permitted, will detract from the dignity
of the profession, but the matter goes deeper than this.
Perhaps the most understandable and acceptable additional
reasons we have found are stated by one commentator as
follows :
" '1. That advertisements, unless kept within narrow
limits, like any other form of solicitation, tend to
stir up litigation, and such tendency is against the
public interest.
" '2. That if there were no restrictions on advertise-
ments, the least capable and least honorable lawyers
would be apt to publish the most extravagant and
alluring material about themselves, and that the
harm which would result would, in large measure,
fall on the ignorant and on those least able to af-
ford it.
" '3. That the temptation would be strong to hold out
as inducements for employment, assurances of suc-
cess or of satisfaction to the client, which assur-
ances could not be realized, and that the giving of
such assurances would materially increase the
temptation to use ill means to secure the end de-
sired by the client.
" 'In other words, the reasons for the rule, and for the
conclusion that it is desirable to prohibit advertising
entirely, or to limit it within such narrow bounds
that it will not admit of abuse, are based on the
possibility and probability that this means of publicity,
if permitted, will be abused.' Harrison Hewitt in a
comment at 15 A.B.A.J. 116 (1929) reproduced in
Cheatham, Cases and Materials on the Legal Profes-
sion (2d Ed., 1955), p. 525.
"Of course, competition is at the root of the abuses in
advertising. If the individual lawyer were permitted to
compete with his fellows in publicity through advertising,
we have no doubt that Mr. Hewitt's three points, quoted
above, would accurately forecast the result." Jacksonville
Bar Ass'n v. Wilson, 102 So.2d 292, 294-95 (Fla. 1958).
EC 2-10 Methods of advertising that are subject
to the objections stated above 25 should be and are
prohibited. 26  However, the Disciplinary Rules
recognize the value of giving assistance in the
selection process through forms of advertising that
furnish identification of a lawyer while avoiding
such objections. For example, a lawyer may be
identified in the classified section of the telephone
directory, 27  in the office building directory, and on
his letterhead and professional card. 28 But at all
times the permitted notices should be dignified and
accurate.
EC 2-11 The name under which a lawyer con-
ducts his practice may be a factor in the selection
process.29  The use of a trade name or an assumed
name could mislead laymen concerning the identi-
ty, responsibility, and status of those practicing
thereunder. 30 Accordingly, a lawyer in private
practice should practice only under his own name,
the name of a lawyer employing him, a partner-
ship name composed of the name of one or more
of the lawyers practicing in a partnership, or, if
permitted by law, in the name of a professional
legal corporation, which should be clearly designat-
ed as such. For many years some law firms have
used a firm name retaining one or more names
of deceased or retired partners and such practice
is not improper if the firm is a bona fide successor
of a firm in which the deceased or retired person
was a member, if the use of the name is authorized
by law or by contract, and if the public is not mis-
led thereby. 31  However, the name of a partner
25 See ABA Canon 27.
26 Cf. ABA Opinions 309 (1963) and 284 (1951).
27 Cf. ABA Opinions 313 (1964) and 284 (1951).
28 See ABA Canon 27.
29 Cf. ABA Opinion 303 (1961).
30 See ABA Canon 33.
31 Id.
"The continued use of a firm name by one or more sur-
viving partners after the death of a member of the firm
whose name is in the firm title is expressly permitted by
the Canons of Ethics. The reason for this is that all of
the partners have by their joint and several efforts over a
period of years contributed to the good will attached to
the firm name. In the case of a firm having widespread
connections, this good will is disturbed by a change in
firm name every time a name partner dies, and that re-
flects a loss in some degree of the good will to the building
up of which the surviving partners have contributed their
time, skill and labor through a period of years. To avoid
this loss the firm name is continued, and to meet the re-
quirements of the Canon the individuals constituting the
firm from time to time are listed." ABA Opinion 267
(1945).
"Accepted local custom in New York recognizes that the
name of a law firm does not necessarily identify the in-
dividual members of the firm, and hence the continued use
of a firm name after the death of one or more partners is
not a deception and is permissible. . . . The continued
use of a deceased partner's name in the firm title is not
affected by the fact that another partner withdraws from
the firm and his name is dropped, or the name of the new
partner is added to the firm name." Opinion No. 45, Com-
mittee on Professional Ethics, New York State Bar Assn,
39 N. Y. St. B. J. 455 (1967) .
Cf. ABA Opinion 258 (1943).
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who withdraws from a firm but continues to prac-
tice law should be omitted from the firm name
in order to avoid misleading the public.
EC 2-12 A lawyer occupy:ng a judicial, legisla-
tive, or public executive or administrative position
who has the right to practice law concurrently may
allow his name to remain in the name of the firm
if he actively continues to practice law as a mem-
ber thereof. Otherwise, his name should be re-
moved from the firm name, 32 and he should not
be identified as a past or present member of the
firm; and he should not hold himself out as being
a practicing lawyer.
EC 2-13 In order to avoid the possibility of mis-
leading persons with whom he deals, a lawyer
should be scrupulous in the representation of his
professional status. 33 He should not hold himself
out as being a partner or associate of a law firm
if he is not one in fact, 34 and thus should not hold
himself out as a partner or associate if he only
shares offices with another lawyer.35
EC 2-14 In some instances a lawyer confines his
practice to a particular field of law. 36 In the ab-
sence of state controls to insure the existence of
special competence, a lawyer should not be per-
mitted to hold himself out as a specialist 37 or as
having special training or ability, other than in the
historically excepted fields of admiralty, trade-
mark, and patent law.38
32 Cf. ABA Canon 33 and ABA Opinion 315 (1965).
33 Cf. ABA Opinions 283 (1950) and 81 (1932).
34 See ABA Opinion 316 (1967).
35 "The word 'associates' has a variety of meanings.
Principally through custom the word when used on the
letterheads of law firms has come to be regarded as de-
scribing those who are employees of the firm. Because
the word has acquired this special significance in connec-
tion with the practice of the law the use of the word to
describe lawyer relationships other than employer-employee
is likely to be misleading." In re Sussman and Tanner,
241 Ore. 246, 248, 405 P.2d 355, 356 (1965).
According to ABA Opinion 310 (1963), use of the term
"associates" would be misleading in two situations ; (1)
where two lawyers are partners and they share both re-
sponsibility and liability for the partnership ; and (2)
where two lawyers practice separately, sharing no responsi-
bility or liability, and only share a suite of offices and some
costs.
36 "For a long time, many lawyers have, of necessity,
limited their practice to certain branches of law. The
increasing complexity of the law and the demand of the
public for more expertness on the part of the lawyer has,
in the past few years—particularly in the last ten years—
brought about specialization on an increasing scale." Re-
port of the Special Committee on Specialization and
Specialized Legal Services, 79 A.B.A.Rep. 582, 584 (1954).
37 "In varying degrees specialization has become the
modus operandi throughout the legal profession. . . .
American society is specialization conscious. The present
Canons, however, do not allow lawyers to make known to
the lay public the fact that they engage in the practice
of a specialty. . . ." Tucker, The Large Law Firm:
Considerations Concerning the Modernization of the Canons
of Professional Ethics, 1965 Wis.L.Rev. 344, 348. 49 (1965).
38 See ABA Canon 27.
EC 2-15 The legal profession has developed law-
yer referral systems designed to aid individuals
who are able to pay fees but need assistance in
locating lawyers competent to handle their par-
ticular problems. Use of a lawyer referral system
enables a layman to avoid an uninformed selection
of a lawyer because such a system makes possible
the employment of competent lawyers who have
indicated an interest in the subject matter in-
volved.  Lawyers should support the principle
of lawyer referral systems and should encourage
the evolution of other ethical plans which aid in
the selection of qualified counsel.
Financial Ability to Employ Counsel: Generally
EC 2-16 The legal profession cannot remain a
viable force in fulfilling its role in our society un-
less its members receive adequate compensation
for services rendered, and reasonable fees 39
should be charged in appropriate cases to clients
able to pay them. Nevertheless, persons unable
to pay all or a portion of a reasonable fee should
be able to obtain necessary legal services, 40 and
lawyers should support and participate in ethical
activities designed to achieve that objective.41
Financial Ability to Employ Counsel: Persons
Able to Pay Reasonable Fees
EC 2-17 The determination of a proper fee re-
quires consideration of the interests of both client
and lawyers. 42
 A lawyer should not charge more
than a reasonable fee, 43 for excessive cost of legal
service would deter laymen from utilizing the legal
system in protection of their rights. Furthermore,
an excessive charge abuses the professional rela-
tionship between lawyer and client. On the other
hand, adequate compensation is necessary in order
to enable the lawyer to serve his client effectively
and to preserve the integrity and independence of
the profession.44
EC 2-18 The determination of the reasonableness
of a fee requires consideration of all relevant cir-
cumstances,45 including those stated in the Dis-
ciplinary Rules. The fees of a lawyer will vary ac-
cording to many factors, including the time re-
quired, his experience, ability, and reputation, the
39 See ABA Canon 12.
40 Cf. ABA Canon 12.
41 "If there is any fundamental proposition of govern-
ment on which all would agree, it is that one of the highest
goals of society must be to achieve and maintain equality
before the law. Yet this ideal remains an empty form of
words unless the legal profession is ready to provide ade-
quate representation for those unable to pay the usual
fees." Professional Representation: Report of the Joint
Conference, 44 A.B.A.J. 1159, 1216 (1958).
42 See ABA Canon 12.
43 Cf. ABA Canon 12.
44 "When members of the Bar are induced to render legal
services for inadequate compensation, as a consequence
the quality of the service rendered may be lowered, the
welfare of the profession injured and the administration
of justice made less efficient." ABA Opinion 302 (1961).
Cf. ABA Opinion 307 (1962).
45 See ABA Canon 12.
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nature of the employment, the responsibility in-
volved, and the results obtained. Suggested fee
schedules and economic reports of state and local
bar associations provide some guidance on the sub-
ject of reasonable fees. 46  It is a commendable and
long-standing tradition of the bar that special con-
sideration is given in the fixing of any fee for
services rendered a brother lawyer or a member of
his immediate family.
EC 2-19 As soon as feasible after a lawyer has
been employed, it is desirable that he reach a clear
agreement with his client as to the basis of the
fee charges to be made. Such a course will not
only prevent later misunderstanding but will also
work for good relations between the lawyer and
the client. It is usually beneficial to reduce to
writing the understanding of the parties regarding
the fee, particularly when it is contingent. A law-
yer should be mindful that many persons who de-
sire to employ him may have had little or no ex-
perience with fee charges of lawyers, and for this
reason he should explain fully to such persons the
reasons for the particular fee arrangement he
proposes.
EC 2-20 Contingent fee arrangements 47 in civil
cases have long been commonly accepted in the
United States in proceedings to enforce claims.
The historical bases of their acceptance are that
(1) they often, and in a variety of circumstances,
provide the only practical means by which one
having a claim against another can economically
afford, finance, and obtain the services of a com-
petent lawyer to prosecute his claim, and (2) a
successful prosecution of the claim produces a res
out of which the fee can be paid. 48  Although a
lawyer generally should decline to accept employ-
ment on a contingent fee basis by one who is able
to pay a reasonable fixed fee, it is not necessarily
improper for a lawyer, where justified by the par-
ticular circumstances of a case, to enter into a con-
tingent fee contract in a civil case with any client
who, after being fully informed of all relevant fac-
tors, desires that arrangement. Because of the
48 Id.
"[U]nder . . . [Canon 12], this Committee has con-
sistently held that minimum fee schedules can only be
suggested or recommended and cannot be made obligatory
.." ABA Opinion 302 (1961).
"[A] compulsory minimum fee schedule is contrary to
Canon 12 and repeated pronouncements of this committee."
ABA Opinion 190 (1939).
Cf. ABA Opinions 171 (1937) and 28 (1930).
47 See ABA Canon 13; see also Mackinnon, Contingent •
Fees for Legal Services (1964) (A report of the American
Bar Foundation).
"A contract for a reasonable contingent fee where sanc-
tioned by law is permitted by Canon 13, but the client
must remain responsible to the lawyer for expenses ad-
vanced by the latter. `There is to be no barter of the
privilege of prosecuting a cause for gain in exchange for
the promise of the attorney to prosecute at his own ex-
pense.' (Cardozo, C. J. in Matter of Gilman, 251 N.Y. 265,
270-271.)" ABA Opinion 246 (1942).
48 See Comment, Providing Legal Services for the Middle
Class in Civil Matters: The Problem, the Duty and a So-
lution, 26 U.Pitt.L.Rev. 811, 829 (1965).
human relationships involved and the unique char-
acter of the proceedings, contingent fee arrange-
ments in domestic relation cases are rarely justi-
fied. In administrative agency proceedings con-
tingent fee contracts should be governed by the
same considerations as in other civil cases. Public
policy properly condemns contingent fee arrange-
ments in criminal cases, largely on the ground that
legal services in criminal cases do not produce a
res with which to pay the fee.
EC 2-21 A lawyer should not accept compensa-
tion or any thing of value incident to his employ-
ment or services from one other than his client
without the knowledge and consent of his client
after full disclosure.49
EC 2-22 Without the consent of his client, a law-
yer should not associate in a particular matter an-
other lawyer outside his firm. A fee may prop-
erly be divided between lawyers 50 properly as-
sociated if the division is in proportion to the serv-
ices performed and the responsibility assumed
by each lawyer 51 and if the total fee is reasonable.
EC 2-23 A lawyer should be zealous in his ef-
forts to avoid controversies over fees with clients 52
and should attempt to resolve amicably any differ-
ences on the subject. 53  He should not sue a client
for a fee unless necessary to prevent fraud or
gross imposition by the client.54
49 See ABA Canon 38.
"Of course, as . . . [Informal Opinion 679] points
out, there must be full disclosure of the arrangement [that
an entity other than the client pays the attorney's fee]
by the attorney to the client . . ." ABA Opinion 320
(1968).
50 "Only lawyers may share in . . . a division of
fees, but . . . it is not necessary that both lawyers be
admitted to practice in the same state, so long as the divi-
sion was based on the division of services or responsibili-
ty." ABA Opinion 316 (1967).
51 See ABA Canon 34.
"We adhere to our previous rulings that where a lawyer
merely brings about the employment of another lawyer
but renders no service and assumes no responsibility in the
matter, a division of the latter's fee is improper. (Opinions
18 and 153).
"It is assumed that the bar, generally, understands what
acts or conduct of a lawyer may constitute 'services' to a
client within the intendment of Canon 12. Such acts or
conduct invariably, if not always, involve 'responsibility'
on the part of the lawyer, whether the word `responsibili-
ty' be construed to denote the possible resultant legal or
moral liability on the part of the lawyer to the client or
to others, or the onus of deciding what should or should
not be done in behalf of the client. The word 'services'
in Canon 12 must be construed in this broad sense and may
apply to the selection and retainer of associate counsel as
well as to other acts or conduct in the client's behalf."
ABA Opinion 204 (1940).
52 See ABA Canon 14.
53 Cf. ABA Opinion 320 (1968).
54 See ABA Canon 14.
"Ours is a learned profession, not a mere money-getting
trade. . . . Suits to collect fees should be avoided.
Only where the circumstances imperatively require, should
resort be had to a suit to compel payment. And where a
lawyer does resort to a suit to enforce payment of fees
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Financial Ability to Employ Counsel: Persons
Unable to Pay Reasonable Fees
EC 2-24 A layman whose financial ability is not
sufficient to permit payment of any fee cannot
obtain legal services, other than in cases where
a contingent fee is appropriate, unless the services
are provided for him. Even a person of moderate
means may be unable to pay a reasonable fee
which is large because of the complexity, novelty,
or difficulty of the problem or similar factors.55
EC 2-25 Historically, the need for legal services
of those unable to pay reasonable fees has been
met in part by lawyers who donated their services
or accepted court appointments on behalf of such
individuals. The basic responsibility for providing
legal services for those unable to pay ultimately
rests upon the individual lawyer, and personal
involvement in the problems of the disadvantaged
can be one of the most rewarding experiences in
the life of a lawyer. Every lawyer, regardless of
professional prominence or professional workload,
should find time to participate in serving the dis-
advantaged. The rendition of free legal services
to those unable to pay reasonable fees continues
to be an obligation of each lawyer, but the efforts
of individual lawyers are often not enough to meet
the need. 56  Thus it has been necessary for the
which involves a disclosure, he should carefully avoid any
disclosure not clearly necessary to obtaining or defending
his rights." ABA Opinion 250 (1943).
But cf. ABA Opinion 320 (1968).
55 "As a society increases in size, sophistication and tech-
nology, the body of laws which is required to control that
society also increases in size, scope and complexity. With
this growth, the law directly affects more and more facets
of individual behavior, creating an expanding need for legal
services on the part of the individual members of the
society. . . . As legal guidance in social and commer-
cial behavior increasingly becomes necessary, there will
come a concurrent demand from the layman that such
guidance be made available to him. This demand will not
come from those who are able to employ the best of legal
talent, nor from those who can obtain legal assistance at
little or no cost. It will come from the large 'forgotten
middle income class,' who can neither afford to pay pro-
portionately large fees nor qualify for ultra-low-cost serv-
ices. The legal profession must recognize this inevitable
demand and consider methods whereby it can be satisfied.
If the profession fails to provide such methods, the laity
will." Comment, Providing Legal Services for the Middle
Class in Civil Matters: The Problem, the Duty and a
Solution, 26 U.Pitt.L.Rev. 811, 811-12 (1965).
"The issue is not whether we shall do something or do
nothing. The demand for ordinary everyday legal justice
is so great and the moral nature of the demand is so strong
that the issue has become whether we devise, maintain,
and support suitable agencies able to satisfy the demand
or, by our own default, force the government to take over
the job, supplant us, and ultimately dominate us." Smith,
Legal Service Offices for Persons of Moderate Means, 1949
Wis.L.Rev. 416, 418 (1949).
56 "Lawyers have peculiar responsibilities for the just ad-
ministration of the law, and these responsibilities include
providing advice and representation for needy persons. To
a degree not always appreciated by the public at large, the
bar has performed these obligations with zeal and devotion.
The Committee is persuaded, however, that a system of
justice that attempts, in mid-twentieth century America,
to meet the needs of the financially incapacitated accused
profession to institute additional programs to pro-
vide legal services. 57  Accordingly, legal aid of-
fices,58  lawyer referral services, 59  and other relat-
ed programs have been developed, and others will
be developed, by the profession. 60 Every lawyer
should support all proper efforts to meet this need
for legal services.61
through primary or exclusive reliance on the uncompensat-
ed services of counsel will prove unsuccessful and inade-
quate. . . . A system of adequate representation, there-
fore, should be structured and financed in a manner re-
flecting its public importance. . . . We believe that
fees for private appointed counsel should be set by the
court within maximum limits established by the statute."
Report of the Att'y Gen's Comm. on Poverty and the Ad-
ministration of Criminal Justice 41-43 (1963).
57 "At present this representation [of those unable to pay
usual fees] is being supplied in some measure through the
spontaneous generosity of individual lawyers, through legal
aid societies, and—increasingly--through the organized ef-
forts of the Bar. If those who stand in need of this serv-
ice know of its availability and their need is in fact ade-
quately met, the precise mechanism by which this service
is provided becomes of secondary importance. It is of
great importance, however, that both the impulse to ren-
der this service, and the plan for making that impulse
effective, should arise within the legal profession itself."
Professional Responsibility: Report of the Joint Confer-
ence, 44 A.B.A.J. 1159, 1216 (1958).
58 "Free legal clinics carried on by the organized bar are
not ethically objectionable. On the contrary, they serve a
very worthwhile purpose and should be encouraged." ABA
Opinion 191 (1939).
59 "We are of the opinion that the [lawyer referral]
plan here presented does not fall within the inhibition of
the Canon. No solicitation for a particular lawyer is in-
volved. The dominant purpose of the plan is to provide as
an obligation of the profession competent legal services to
persons in low-income groups at fees within their ability
to pay. The plan is to be supervised and directed by the
local Bar Association. There is to be no advertisement
of the names of the lawyers constituting the panel. The
general method and purpose of the plan only is to be ad-
vertised. Persons seeking the legal services will be direct-
ed to members of the panel by the Bar Association. Aside
from the filing of the panel with the Bar Association,
there is to be no advertisement of the names of the lawyers
constituting the panel. If these limitations are observed,
we think there is no solicitation of business by or for par-
ticular lawyers and no violation of the inhibition of Canon
27." ABA Opinion 205 (1940).
60 "Whereas the American Bar Association believes that
it is a fundamental duty of the bar to see to it that all
persons requiring legal advice be able to attain it, irrespec-
tive of their economic status . .
"Resolved, that the Association approves and sponsors
the setting up by state and local bar associations of lawyer
referral plans and low-cost legal service methods for the
purpose of dealing with cases of persons who might not
otherwise have the benefit of legal advice . . .." Pro-
ceedings of the House of Delegates of the American Bar
Association, Oct. 30, 1946, 71 A.B.A.Rep. 103, 109-10 (1946).
61 "The defense of indigent citizens, without compensa-
tion, is carried on throughout the country by lawyers rep-
resenting legal aid societies, not only with the approval,
but with the commendation of those acquainted with the
work. Not infrequently services are rendered out of
sympathy or for other philanthropic reasons, by individual
lawyers who do not represent legal aid societies. There
is nothing whatever in the Canons to prevent a lawyer
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Acceptance and Retention of Employment
EC 2-26 A lawyer is under no obligation to act as
adviser or advocate for every person who may
wish to become his client; but in furtherance of
the objective of the bar to make legal services fully
available, a lawyer should not lightly decline prof-
fered employment. The fulfillment of this objec-
tive requires acceptance by a lawyer of his share
of tendered employment which may be unattractive
both to him and the bar generally.62
EC 2-27 History is replete with instances of dis-
tinguished and sacrificial services by lawyers who
have represented unpopular clients and causes.
Regardless of his personal feelings, a lawyer
should not decline representation because a client
or a cause is unpopular or community reaction is
adverse.63
EC 2-28 The personal preference of a lawyer to
avoid adversary alignment against judges, other
lawyers,64
 public officials, or influential members
of the community does not justify his rejection
of tendered employment.
EC 2-29 When a lawyer is appointed by a court
or requested by a bar association to undertake
representation of a person unable to obtain coun-
sel, whether for financial or other reasons, he
should not seek to be excused from undertaking
from performing such an act, nor should there be." ABA
Opinion 148 (1935).
62 But cf. ABA Canon 31.
63 "One of the highest services the lawyer can render to
society is to appear in court on behalf of clients whose
causes are in disfavor with the general public." Profession-
al Responsibility: Report of the Joint Conference, 44 A.B.
A.J. 1159, 1216 (1958).
One author proposes the following proposition to be in-
cluded in "A Proper Oath for Advocates" : "I recognize
that it is sometimes difficult for clients with unpopular
causes to obtain proper legal representation. I will do all
that I can to assure that the client with the unpopular
cause is properly represen t ed, and that the law y er re p re-
senting such a client receives credit from and support of
the bar for handling such a matter." Thode, The Ethical
Standard for the Advocate, 39 Texas L. Rev. 575, 592 (1961).
"§ 6068. . . . It is the duty of an attorney :
"(h) Never to reject, for any consideration personal to
himself, the cause of the defenseless or the oppressed."
Cal.Business and Professions Code § 6068 (West 1962).
Virtually the same language is found in the Oregon stat-
utes at Ore.Rev.Stats. Ch. 9 § 9.460(8).
See Rostow, The Lawyer and His Client, 48 A.B.A.J.
25 and 146 (1962).
64 See ABA Canons 7 and 29.
"We are of the opinion that it is not professionally im-
proper for a lawyer to accept employment to compel an-
other lawyer to honor the just claim of a layman. On the
contrary, it is highly proper that he do so. Unfortunately,
there appears to be a widespread feeling among laymen
that it is difficult, If not impossible, to obtain justice when
they have claims against members of the Bar because other
lawyers will not accept employment to proceed against
them. The honor of the profession, whose members proud-
ly style themselves officers of the court, must surely be
sullied if its members bind themselves by custom to refrain
from enforcing just claims of laymen against lawyers."
ABA Opinion 144 (1935).
the representation except for compelling reasons.65
Compelling reasons do not include such factors as
the repugnance of the subject matter of the pro-
ceeding, the identity 66 or position of a person in-
volved in the case, the belief of the lawyer that
the defendant in a criminal proceeding is guilty,67
or the belief of the lawyer regarding the merits
of the civil case.68
EC 2-30 Employment should not be accepted by
a lawyer when he is unable to render competent
service 69 or when he knows or it is obvious that
the person seeking to employ him desires to in-
stitute or maintain an action merely for the pur-
pose of harassing or maliciously injuring another.70
Likewise, a lawyer should decline employment if
the intensity of his personal feeling, as distin-
guished from a community attitude, may impair
his effective representation of a prospective client.
If a lawyer knows a client has previously obtained
counsel, he should not accept employment in the
matter unless the other counsel approves 71 or
withdraws, or the client terminates the prior em-
ployment.72
EC 2-31 Full availability of legal counsel requires
both that persons be able to obtain counsel and that
lawyers who undertake representation complete
the work involved. Trial counsel for a convicted
defendant should continue to represent his client
by advising whether to take an appeal and, if the
appeal is prosecuted, by representing him through
the appeal unless new counsel is substituted or
withdrawal is permitted by the appropriate court.
65 ABA Canon 4 uses a slightly different test, saying, "A
lawyer assigned as counsel for an indigent prisoner ought
not to ask to be excused for any trivial reason . . .."
66 Cf. ABA Canon 7.
67 See ABA Canon 5.
68 Dr. Johnson's reply to Boswell upon being asked what
he thought of "supporting a cause which you know to be
bad" was : "Sir, you do not know it to be good or bad
till the Judge determines it. I have said that you are to
state facts fairly ; so that your thinking, or what you
call knowing, a cause to be bad, must be from reason-
ing, must be from supposing your arguments to be weak
and inconclusive. But, Sir, that is not enough. An argu-
ment which does not convince yourself, may convince the
Judge to whom you urge it : and if it does convince him,
why, then, Sir, you are wrong, and he is right." 2 Bos-
well, The Life of Johnson 47-48 (Hill ed. 1887).
69 "The lawyer deciding whether to undertake a case
must be able to judge objectively whether he is capable of
handling it and whether he can assume its burdens without
prejudice to previous commitments. . . ." Professional
Responsibility: Report of the Joint Conference, 44 A.B.A.J.
1158, 1218 (1958).
70 "The lawyer must decline to conduct a civil cause or
to make a defense when convinced that it is intended mere-
ly to harass or to injure the opposite party or to work
oppression or wrong." ABA Canon 30.
71 See ABA Canon 7.
72 Id.
"From the facts stated we assume that the client has
discharged the first attorney and given notice of the dis-
charge. Such being the case, the second attorney may
properly accept employment. Canon 7; Opinions 10, 130,
149." ABA Opinion 209 (1941).
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EC 2-32 A decision by a lawyer to withdraw
should be made only on the basis of compelling
circumstances 73 , and in a matter pending before
a tribunal he must comply with the rules of the
tribunal regarding withdrawal. A lawyer should
not withdraw without considering carefully and
endeavoring to minimize the possible adverse ef-
fect on the rights of his client and the possibility
of prejudice to his client 74 as a result of his
withdrawal. Even when he justifiably withdraws,
a lawyer should protect the welfare of his client by
giving due notice of his withdrawal: 75 suggesting
employment of other counsel, delivering to the
client all papers and property to which the client
is entitled, cooperating with counsel subsequently
employed, and otherwise endeavoring to minimize
the possibility of harm. Further, he should refund
to the client any compensation not earned during
the employment:76
DISCIPLINARY RULES
DR 2-101 Publicity in Genera1.77
(A) A lawyer shall not prepare, cause to be pre-
pared, use, or participate in the use of, any
form of public communication that contains
professionally self-laudatory statements cal-
culated to attract lay clients; as used herein,
"public communication" includes, but is not
limited to, communication by means of tele-
vision, radio, motion picture, newspaper, mag-
azine, or book.
(B) A lawyer shall not publicize himself, his part-
ner, or associate as a lawyer through news-
paper or magazine advertisements, radio or
television announcements, display advertise-
ments in city or telephone directories, or other
means of commercial publicity, 78 nor shall
he authorize or permit others to do so in his
behalf 79 
except as permitted under DR 2-103.
3 See ABA Canon 44.
"I will carefully consider, before taking a case, whether
it appears that I can fully represent the client within the
framework of law. If the decision is in the affirmative,
then it will take extreme circumstances to cause me to de-
cide later that I cannot so represent him." Thode, The
Ethical Standard for the Advocate, 39 Texas L.Rev. 575,
592 (1961) (from "A Proper Oath for Advocates").
74 ABA Opinion 314 (1965) held that a lawyer should not
disassociate himself from a cause when "it is obvious that
the very act of disassociation would have the effect of vio-
lating Canon 37."
ABA Canon 44 enumerates instances in which ". . .
the lawyer may be warranted in withdrawing on due no-
tice to the client, allowing him time to employ another
lawyer."
76 See ABA Canon 44.
77 Cf. ABA Canon 27; see generally ABA Opinion 293
(1957).
This does not prohibit limited and dignified
identification of a lawyer as a lawyer as well
as by name 99:
(1) In political advertisements when his
professional status is germane to the
political campaign or to a political is-
sue.
(2) In public notices when the name and
profession of a lawyer are required or
authorized by law or are reasonably
pertinent for a purpose other than the
attraction of potential clients.si
(3) In routine reports and announcements
of a bona fide business, civic, profes-
sional, or political organization in which
he serves as a director or officer.
(4) In and on legal documents prepared by
him.
(5) In and on legal textbooks, treatises, and
other legal publications, and in dignified
advertisements thereof.
(C) A lawyer shall not compensate or give any
thing of value to representatives of the press,
radio, television, or other communication
medium in anticipation of or in return for
professional publicity in a news item.82
DR 2-102 Professional Notices, Letterheads, Of-
fices, and Law Lists.
(A) A lawyer or law firm shall not use profession-
al cards, professional announcement cards,
ments and capabilities." Matter of Connelly, 18 App.Div.
2d 466, 478, 240 N.Y.S.2d 126, 138 (1963).
"An announcement of the fact that the lawyer had re-
signed and the name of the person to succeed him, or take
over his work, would not be objectionable, either as an
official communication to those employed by or connected
with the administrative agency or instrumentality [that
had employed him], or as a news release.
"But to include therein a statement of the lawyer's ex-
perience in and acquaintance with the various departments
and agencies of the government, and a laudation of his
legal ability, either generally or in a special branch of
the law, is not only bad taste but ethically improper.
"It can have but one primary purpose or object ; to aid
the lawyer in securing professional employment in private
practice by advertising his professional experience, attain-
ments and ability." ABA Opinion 184 (1938).
Cf. ABA Opinions 285 (1951) and 140 (1935).
80 "The question is always . . . whether under the
circumstance the furtherance of the professional employ-
ment of the lawyer is the primary purpose of the adver-
tisement, or is merely a necessary incident of a proper and
legitimate objective of the client which does not have the
effect of unduly advertising him." ABA Opinion 290 (1956).
See ABA Opinion 285 (1951).
31 See ABA Opinions 299 (1961), 290 (1956), 158 (1936),
and 100 (1933) ; cf. ABA Opinion 80 (1932).
82 "Rule 2.
78 cf. ABA Opinions 133 (1935), 116 (1934), 107 (1934), 73
(1932), 59 (1931), and 43 (1931).
79 "There can be no justification for the participation
and acquiescence by an attorney in the development and
publication of an article which, on its face, plainly amounts
to a self-interest and unethical presentation of his achieve-
"[A] member of the State Bar shall not solicit pro-
fessional employment by . .
"(4) The making of gifts to representatives of the
press, radio, television or any medium of communica-
tion in anticipation of or in return for publicity."
Cal.Business and Professions Code § 6076 (West 1962).
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CODE OF PROFESSIONAL RESPONSIBILITY
office signs, letterheads, telephone directory
listings, law lists, legal directory listings, or
similar professional notices or devices, 83  ex-
cept that the following may be used if they
are in dignified form:
(1) A professional card of a lawyer identi-
fying him by name and as a lawyer,
and giving his addresses, telephone
numbers, the name of his law firm, and
any information permitted under DR
2-105. A professional card of a law
firm may also give the names of mem-
bers and associates. Such cards may
be used for identification 84 but may
not be published in periodicals, maga-
zines, newspapers, 85  or other media.86
(2) A brief professional announcement card
stating new or changed associations or
addresses, change of firm name, or simi-
lar matters pertaining to the profes-
sional office of a lawyer or law firm,
which may be mailed to lawyers, clients,
former clients, personal friends, and
relatives. 87 It shall not state bio-
graphical data except to the extent rea-
sonably necessary to identify the law-
yer or to explain the change in his
association, but it may state the im-
mediate past position of the lawyer.88
It may give the names and dates of
predecessor firms in a continuing line
of succession. It shall not state the
nature of the practice except as per-
mitted under DR 2-105.89
(3) A sign on or near the door of the office
and in the building directory identifying
the law office. The sign shall not state
the nature of the practice, except as
permitted under DR 2-105.
(4) A letterhead of a lawyer identifying
him by name and as a lawyer, and giv-
83 Cf. ABA Opinions 233 (1941) and 114 (1934).
84 See ABA Opinion 175 (1938).
85 See ABA Opinions 260 (1944) and 182 (1938).
86 But cf. ABA Opinions 276 (1947) and 256 (1943).
87 See ABA Opinion 301 (1961).
88 "[I]t  has become commonplace for many lawyers to
participate in government service ; to deny them the right,
upon their return to private practice, to refer to their prior
employment in a brief and dignified manner, would place
an undue limitation upon a large element of our profes-
sion. It is entirely proper for a member of the profession
to explain his absence from private practice, where such
is the primary purpose of the announcement, by a brief
and dignified reference to the prior employment.
di . . . [A]ny such announcement should be limited to
the immediate past connection of the lawyer with the gov-
ernment, made upon his leaving that position to enter pri-
vate practice." ABA Opinion 301 (1961).
89 See ABA Opinion 251 (1943).
90 "Those lawyers who are working for an individual
lawyer or a law firm may be designated on the letterhead
and in other appropriate places as `associates'." ABA
Opinion 310 (1963).
ing his addresses, telephone numbers,
the name of his law firm, associates,
and any information permitted under
DR 2-105. A letterhead of a law firm
may also give the names of members
and associates, 90  and names and dates
relating to deceased and retired mem-
bers 91 A lawyer may be designated
"Of Counsel" on a letterhead if he has
a continuing relationship with a law-
yer or law firm, other than as a partner
or associate. A lawyer or law firm
may be designated as "General Coun-
sel" or by similar professional refer-
ence on stationery of a client if he or
the firm devotes a substantial amount
of professional, time in the representa-
tion of that client. 92  The letterhead of
a law firm may give the names and
dates of predecessor firms in a con-
tinuing line of succession.
(5) A listing of the office of a lawyer
or law firm in the alphabetical and
classified sections of the telephone di-
rectory or directories for the geographi-
cal area or areas in which the lawyer
resides or maintains offices or in which
a significant part of his clientele re-
sides 93 
and in the city directory of the
city in which his or the firm's office
is located; 94 but the listing may give
only the name of the lawyer or law
firm, the fact he is a lawyer, addresses,
and telephone numbers. 95  The listing
shall not be in distinctive form 96 or
type. 97 A law firm may have a listing
in the firm name separate from that of
its members and associates. 98  The list-
ing in the classified section shall not
be under a heading or classification
other than "Attorneys" or "Lawyers",99
91 See ABA Canon 33.
92 But see ABA Opinion 285 (1951).
93 See ABA Opinion 295 (1959).
94 But see ABA Opinion 313 (1964) which says the Com-
mittee "approves a listing in the classified section of the
city directory for lawyers only when the listing includes
all lawyers residing in the community and when no charge
is made therefor."
95 "The listing should consist only of the lawyer's name,
address and telephone number." ABA Opinion 313 (1964).
90 "[A]dding to the regular classified listing a 'second
line' in which a lawyer claims that he is engaged in a
'specialty' is an undue attempt to make his name distinc-
tive." ABA Opinion 284 (1951).
97 "[Opinion 284] held that a lawyer could not with pro-
priety have his name listed in distinctive type in a tele-
phone directory or city directory. We affirm that opin-
ion." ABA Opinion 313 (1964).
See ABA Opinions 123 (1934) and 53 (1931).
98 "[I]f  a lawyer is a member of a law firm, both the
firm, and the individual lawyer may be listed separately."
ABA Opinion 313 (1964).
99 See ABA Opinion 284 (1951).
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CODE OF PROFESSIONAL RESPONSIBILITY
XXXI
except that additional headings or clas-
sifications descriptive of the types of
practice referred to in DR 2-105 are
permitted.100
(6) A listing in a reputable law list 101 or
legal directory giving brief biographical
and other informative data. A law list
or directory is not reputable if its
management or contents are likely to
be misleading or injurious to the public
or to the profession. 102  A law list is
conclusively established to be reputable
if it is certified by the American Bar
Association as being in compliance
with its rules and standards. The pub-
lished data may include only the follow-
ing: name, including name of law firm
and names of professional associates;
addresses 103 and telephone numbers;
one or more fields of law in which the
lawyer or law firm concentrates; 104 a
statement that practice is limited to one
or more fields of law; a statement that
the lawyer or law firm specializes in a
particular field of law or law practice
but only if authorized under DR 2-105
(A) (4) ; 105 date and place of birth;
date and place of admission to the bar
of state and federal courts; schools
100 See Silverman v. State Bar of Texas, 405 F.2d 410, (5th
Cir. 1968) ; but see ABA Opinion 286 (1952).
101 Cf. ABA Canon 43.
102 Cf. ABA Opinion 255 (1943).
103 "We are asked to define the word 'addresses' appear-
ing in the second paragraph of Canon 27 . • • •
"It is our opinion that an address (other than a cable
address) within the intendment of the canon is that of the
lawyer's office or of his residence. Neither address should
be misleading. If, for example, an office address is given,
it must be that of a bona fide office. The residence ad-
dress, if given, should be identified as such if the city or
other place of residence is not the same as that in which the
law office is located." ABA Opinion 249 (1942).
104 "[T]oday in various parts of the country Committees
on Professional Ethics of local and state bar associations
are authorizing lawyers to describe themselves in announce-
ments to the Bar and in notices in legal periodicals and
approved law lists as specialists in a great variety of things.
Thus in the approved law lists or professional announce-
ments there appear, in connection with the names of in-
dividual practitioners or firms, such designations as 'In-
ternational Law, Public and Private' ; 'Trial Preparation
in Personal Injury and Negligence Actions' ; 'Philippine
War Damage Claims' ; 'Anti-Trust' ; 'Domestic Relations' ;
'Tax Law' ; 'Negligence Law'. It would seem that the
ABA has given at least its tacit approval to this sort of
announcement.
"It is important that this sort of description is not, in
New York at least, permitted on letterheads or shingles or
elsewhere in communications to laymen. This is subject
to the single exception that such announcement to laymen
is permitted in the four traditional specialties, Admiralty,
Patent, Copyright and Trade-mark." Report of the Special
Committee on Specialization and Specialized Legal Educa-
tion, 79 A.B.A.Rep. 582, 586 (1954).
105 This provision is included to conform to action taken
by the ABA House of Delegates at the Mid-Winter Meet-
ing, January, 1969.
attended, with dates of graduation, de-
grees, and other scholastic distinctions;
public or quasi-public offices; military
service; posts of honor; legal author-
ships; legal teaching positions; mem-
berships, offices, committee assign-
ments, and section memberships in bar
associations; memberships and offices
in legal fraternities and legal societies;
technical and professional associations
and societies; foreign language ability;
names and addresses of references,106
and, with their consent, names of clients
regularly represented.107
(B) A lawyer in private practice shall not practice
under a trade name, a name that is mislead-
ing as to the identity of the lawyer or lawyers
practicing under such name, or a firm name
containing names other than those of one or
more of the lawyers in the firm, except that
the name of a professional corporation or pro-
fessional association may contain "P.C." or
"P.A." or similar symbols indicating the na-
ture of the organization, and if otherwise law-
ful a firm may use as, or continue to include
in, its name, the name or names of one or
more deceased or retired members of the
firm or of a predecessor firm in a continuing
line of succession. 108  A lawyer who assumes
a judicial, legislative, or public executive or
administrative post or office shall not permit
his name to remain in the name of a law firm
or to be used in professional notices of the
firm during any significant period in which
he is not actively and regularly practicing law
as a member of the firm, 100  and during such
period other members of the firm shall not
use his name in the firm name or in profes-
sional notices of the firm.110
106 See ABA Canon 43 and ABA Opinion 119 (1934) ; but
see ABA Opinion 236 (1941).
107 See ABA Canon 27.
W8 See ABA Canon 33; cf. ABA Opinions 318 (1967), 267
(1945), 219 (1941), 208 (1940), 192 (1939), 97 (1933), and 6
(1925).
109 ABA Opinion 318 (1967) held, "anything to the con-
trary in Formal Opinion 315 or in the other opinions cited
notwithstanding" that : "Where a partner whose name
appears in the name of a law firm is elected or appointed
to high local, state or federal office, which office he in-
tends to occupy only temporarily, at the end of which time
he intends to return to his position with the firm, and
provided that he is not precluded by holding such office
from engaging in the practice of law and does not in fact
sever his relationship with the firm but only takes a leave
of absence, and provided that there is no local law, stat-
ute or custom to the contrary, his name may be retained
in the firm name during his term or terms of office, but
only if proper precautions are taken not to mislead the
public as to his degree of participation in the firm's af-
fairs."
Cf. ABA Opinion 143 (1935), New York County Opinion
67, and New York City Opinions 36 and 798; but cf. ABA
Opinion 192 (1939) and Michigan Opinion 164.
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CODE OF PROFESSIONAL RESPONSIBILITY
(C) A lawyer shall not hold himself out as having
a partnership with one or more other lawyers
unless they are in fact partners.111
(D) A partnership shall not be formed or con-
tinued between or among lawyers licensed in
different jurisdictions unless all enumerations
of the members and associates of the firm on
its letterhead and in other permissible listings
make clear the jurisdictional limitations on
those members and associates of the firm not
licensed to practice in all listed jurisdic-
tions; 112 however, the same firm name may
be used in each jurisdiction.
(E) A lawyer who is engaged both in the practice
of law and another profession or business
shall not so indicate on his letterhead, office
sign, or professional card, nor shall he iden-
tify himself as a lawyer in any publication in
connection with his other profession or busi-
ness.
(F) Nothing contained herein shall prohibit a law-
yer from using or permitting the use, in con-
nection with his name, of an earned degree
or title derived therefrom indicating his train-
ing in the law.
DR 2-103 Recommendation of Professional Em-
ployment.113
(A) A lawyer shall not recommend employment,
as a private practitioner, 114 of himself, his
partner, or associate to a non-lawyer who has
not sought his advice regarding employment
of a lawyer.115
(B) Except as permitted under DR 2-103(C), a
lawyer shall not compensate or give anything
of value to a person or organization to recom-
mend or secure his employment 116 by a client,
or as a reward for having made a recommen-
dation resulting in his employment 117 by a
client.
111 See ABA Opinion 277 (1948) ; cf. ABA Canon 33 and
ABA Opinions 318 (1967), 126 (1935), 115 (1934), and 106
(1934).
112 See ABA Opinions 318 (1967) and 316 (1967) ; cf. ABA
Canon 33.
113 Cf. ABA Canons 27 and 28.
114 "We think it clear that a lawyer's seeking employ-
ment in an ordinary law office, or appointment to a civil
service position, is not prohibited by . . . [Canon 27]."
ABA Opinion 197 (1939).
115 "[A] lawyer may not seek from persons not his clients
the opportunity to perform . . . a [legal] check-up."
ABA Opinion 307 (1962).
116 Cf. ABA Opinion 78 (1932).
117 " 'No financial connection of any kind between the
Brotherhood and any lawyer is permissible. No lawyer
can properly pay any amount whatsoever to the Brother-
hood or any of its departments, officers or members as
compensation, reimbursement of expenses or gratuity in
connection with the procurement of a case.' " In re
Brotherhood of R. R. Trainmen, 13 Il1.2d 391, 398, 150 N.E.
2d 163, 167 (1958), quoted in In re Ratner, 194 Kan 362,
372, 399 P.2d 865, 873 (1965).
See ABA Opinion 147 (1935).
(C) A lawyer shall not request a person or organ-
ization to recommend employment, as a pri-
vate practitioner, of himself, his partner, or
associate, 118 except that he may request re-
ferrals from a lawyer referral service operat-
ed, sponsored, or approved by a bar associa-
tion representative of the general bar of the
geographical area in which the association
exists and may pay its fees incident there-
to.119
(D) A lawyer shall not knowingly assist a person
or organization that recommends, furnishes,
or pays for legal services to promote the use
of his services or those of his partners or as-
sociates. However, he may cooperate in a dig-
nified manner with the legal service activities
of any of the following, provided that his in-
dependent professional judgment is exercised
in behalf of his client without interference or
control by any organization or other person:
(1) A legal aid office or public defender
office:
(a) Operated or sponsored by a duly
accredited law school.
(b) Operated or sponsored by a bona
fide non-profit community or-
ganization.
(c) Operated or sponsored by a gov-
ernmental agency.
(d) Operated, sponsored, or approved
by a bar association representa-
tive of the general bar of the geo-
graphical area in which the as-
sociation exists.120
(2) A military legal assistance office.
(3) A lawyer referral service operated,
sponsored, or approved by a bar asso-
ciation representative of the general
bar of the geographical area in which
the association exists.121
(4) A bar association representative of the
general bar of the geographical area in
which the association exists.122
118 "This Court has condemned the practice of ambu-
lance chasing through the media of runners and touters.
In similar fashion we have with equal emphasis condemned
the practice of direct solicitation by a lawyer. We have
classified both offenses as serious breaches of the Canons
of Ethics demanding severe treatment of the offending
lawyer." State v. Dawson, 111 So.2d 427, 431 (Fla. 1959).
119 "Registrants [of a lawyer referral plan] may be re-
quired to contribute to the expense of operating it by a
reasonable registration charge or by a reasonable percent-
age of fees collected by them." ABA Opinion 291 (1956).
Cf. ABA Opinion 227 (1941).
120 Cf. ABA Opinion 148 (1935).
121 Cf. ABA Opinion 227 (1941).
122 "If a bar association has embarked on a program of
institutional advertising for an annual legal check-up and
provides brochures and reprints, it is not improper to have
these available in the lawyer's office for persons to read
and take." ABA Opinion 307 (1962).
Cf. ABA Opinion 121 (1934).
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CODE OF PROFESSIONAL RESPONSIBILITY
(5) Any other non-profit organization that
recommends, furnishes, or pays for le-
gal services to its members or bene-
ficiaries, but only in those instances and
to the extent that controlling constitu-
tional interpretation at the time of the
rendition of the services requires the
allowance of such legal service activi-
ties,'23  and only if the following condi-
tions, unless prohibited by such inter-
pretation, are met:
(a) The primary purposes of such
organization do not include the
rendition of legal services.
(b) The recommending, furnishing,
or paying for legal services to its
members is incidental and rea-
sonably related to the primary
purposes of such organization.
(c) Such organization does not derive
a financial benefit from the ren-
dition of legal services by the
lawyer.
(d) The member or beneficiary for
whom the legal services are ren-
dered, and not such organization,
is recognized as the client of the
lawyer in that matter.
( E) A lawyer shall not accept employment when
he knows or it is obvious that the person who
seeks his services does so as a result of con-
duct prohibited under this Disciplinary Rule.
DR 2-104 Suggestion of Need of Legal Serv-
ices.124
(A) A lawyer who has given unsolicited advice to
a layman that he should obtain counsel or
take legal action shall not accept employment
resulting from that advice, 125  except that:
(1) A lawyer may accept employment by
a close friend, relative, former client
(if the advice is germane to the former
employment), or one whom the lawyer
reasonably believes to be a client.126
(2) A lawyer may accept employment that
results from his participation in activi-
ties designed to educate laymen to rec-
123 United Mine Workers v. Ill. State Bar Ass'n, 389 U.S.
217, 19 L.Ed.2d 426, 88 S.Ct. 353 (1967) ; Brotherhood of
R.R. Trainmen v. Virginia, 371 U.S. 1, 12 L.Ed.2d 89, 84
S.Ct. 1113 (1964) ; NAACP v. Button, 371 U.S. 415, 9 L.
Ed.2d 405, 83 S.Ct. 328 (1963).
124 ABA Canon 28.
123 cf. ABA Opinions 229 (1941) and 173 (1937).
126 "It certainly is not improper for a lawyer to advise
his regular clients of new statutes, court decisions, and
administrative rulings, which may affect the client's in-
terests, provided the communication is strictly limited to
such information. .
"When such communications go to concerns or indi-
viduals other than regular clients of the lawyer, they are
thinly disguised advertisements for professional employ-
ment, and are obviously improper." ABA Opinion 213
(1941).
"It is our opinion that where the lawyer has no reason
to believe that he has been supplanted by another lawyer,
it is not only his right, but it might even be his duty to
ognize legal problems, to make intell i
-gent selection of counsel, or to utilize
available legal services if such activities
are conducted or sponsored by any of
the offices or organizations enumerated
in DR 2-103(D) (1) through (5), to the
extent and tinder the conditions pre-
scribed therein.
(3) A lawyer wno is furnished or paid by
any of the offices or organizations
enumerated in DR 2-103(D) (1), (2), or
(5) may represent a member or bene-
ficiary thereof, to the extent and under
the conditions prescribed therein.
(4) Without affecting his right to accept
employment, a lawyer may speak pub-
licly or write for publication on legal
topics 127 so long as he does not em-
phasize his own professional experience
or reputation and does not undertake
to give individual advice.
(5) If success in asserting rights or defens-
es of his client in litigation in the nature
of a class action is dependent upon the
joinder of others, a lawyer may accept,
but shall not seek, employment from
those contacted for the purpose of ob-
taining their joinder.128
DR 2-105 Limitation of Practice.129
(A) A lawyer shall not hold himself out publicly
as a specialist 130 or as limiting his practice,131
except as permitted under DR 2-102(A) (6)
or as follows:
(1) A lawyer admitted to practice before the
United States Patent Office may use
the designation "Patents," "Patent At-
torney," or "Patent Lawyer," or any
combination of those terms, on his let-
terhead and office sign. A lawyer en-
gaged in the trademark practice may
use the designation "Trademarks,"
"Trademark Attorney," or "Trademark
Lawyer," or any combination of those
terms, on his letterhead and office sign,
and a lawyer engaged in the admiralty
practice may use the designation "Ad-
miralty," "Proctor in Admiralty," or
"Admiralty Lawyer," or any combina-
tion of those terms, on his letterhead
and office sign.132
advise his client of any change of fact or law which might
defeat the client's testamentary purpose as expressed in the
will
"Periodic notices might be sent to the client for whom
a lawyer has drawn a will, suggesting that it might be wise
for the client to reexamine his will to determine whether
or not there has been any change in his situation requir-
ing a modification of his will." ABA Opinion 210 (1941).
Cf. ABA Canon 28.
127 Cf. ABA Opinion 168 (1937).
128 But cf. ABA Opinion 111 (1934).
129 See ABA Canon 45; cf. ABA Canons 27, 43, and 46.
130 Cf. ABA Opinions 228 (1941) and 194 (1939).
131 See ABA Opinions 251 (1943) and 175 (1938).
132 See ABA Canon 27; cf. ABA Opinion 286 (1952).
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CODE OF PROFESSIONAL RESPONSIBILITY
(2) A lawyer may permit his name to be
listed in lawyer referral service offices
according to the fields of law in which
he will accept referrals.
(3) A lawyer available to act as a consult-
ant to or as an associate of other law-
yers in a particular branch of law or
legal service may distribute to other
lawyers and publish in legal journals a
dignified announcement of such avail-
ability, 133  but the announcement shall
not contain a representation of special
competence or experience. 134  The an-
nouncement shall not be distributed to
lawyers more frequently than once in a
calendar year, but it may be published
periodically in legal journals.
(4) A lawyer who is certified as a specialist
in a particular field of law or law prac-
tice by the authority having jurisdiction
under state law over the subject of
specialization by lawyers may hold him-
self out as such specialist but only in
accordance with the rules prescribed by
that authority.135
DR 2-106 Fees for Legal Services.136
(A) A lawyer shall not enter into an agreement
for, charge, or collect an illegal or clearly ex-
cessive fee.137
(B) A fee is clearly excessive when, after a review
of the facts, a lawyer of ordinary prudence
would be left with a definite and firm convic-
tion that the fee is in excess of a reasonable
fee. Factors to be considered as guides in de-
termining the reasonableness of a fee include
the following:
(1) The time and labor required, the novel-
ty and difficulty of the questions in-
volved, and the skill requisite to per-
form the legal service properly.
(2) The likelihood, if apparent to the client,
that the acceptance of the particular
employment will preclude other em-
ployment by the lawyer.
(3) The fee customarily charged in the lo-
cality for similar legal services.
133 Cf. ABA Opinion 194 (1939).
134 See ABA Canon 46.
135 This provision is included to conform to action taken
by the ABA House of Delegates at the Mid-Winter Meeting,
January, 1969.
136 See ABA Canon 12.
137 The charging of a "clearly excessive fee" is a ground
for discipline. State ex rel. Nebraska State Bar Ass'n. v.
Richards, 165 Neb. 80, 90, 84 N.W.2d 136, 143 (1957).
"An attorney has the right to contract for any fee he
chooses so long as it is not excessive (see Opinion 190),
and this Committee is not concerned with the amount of
such fees unless so excessive as to constitute a misappro-
priation of the client's funds (see Opinion 27)." ABAOpinion 320 (1968).
Cf. ABA Opinions 209 (1940), 190 (1939), and 27 (1930)
and State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla. 1966).
(4) The amount involved and the results ob-
tained.
(5) The time limitations imposed by the
client or by the circumstances.
(6) The nature and length of the profes-
sional relationship with the client.
(7) The experience, reputation, and ability
of the lawyer or lawyers performing
the services.
(8) Whether the fee is fixed or contin-
gent.138
(C) A lawyer shall not enter into an arrangement
for, charge, or collect a contingent fee for rep-
resenting a defendant in a criminal case.139
DR 2-107 Division of Fees Among Lawyers.
(A) A lawyer shall not divide a fee for legal serv-
ices with another lawyer who is not a partner
in or associate of his law firm or law office,
unless:
(1) The client consents to employment of
the other lawyer after a full disclosure
that a division of fees will be made.
(2) The division is made in proportion to
the services performed and responsibili-
ty assumed by each.140
(3) The total fee of the lawyers does not
clearly exceed reasonable compensation
for all legal services they rendered the
client.141
138 Cf. ABA Canon 13; see generally MacKinnon, Con-
tingent Fees for Legal Services (1964) (A Report of the
American Bar Foundation).
139 "Contingent fees, whether in civil or criminal cases,
are a special concern of the law. .
"In criminal cases, the rule is stricter because of the
danger of corrupting justice. The second part of Section
542 of the Restatement [of Contracts] reads : 'A bargain
to conduct a criminal case . . . in consideration of a
promise of a fee contingent on success is illegal. . . .
Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 967 (1959).
"The third area of practice in which the use of the con-
tingent fee is generally considered to be prohibited is the
prosecution and defense of criminal cases. However, there
are so few cases, and these are predominantly old, that
it is doubtful that there can be said to be any current law
on the subject. . . . In the absence of cases on the
validity of contingent fees for defense attorneys, it is
necessary to rely on the consensus among commentators
that such a fee is void as against public policy. The nature
of criminal practice itself makes unlikely the use of con-
tingent fee contracts." MacKinnon, Contingent Fees for
Legal Services 52 (1964) (A Report of the American Bar
Foundation).
140 See ABA Canon 34 and ABA Opinions 316 (1967) and
294 (1958) ; see generally ABA Opinions 265 (1945), 204
(1940), 190 (1939), 171 (1937), 153 (1936), 97 (1933), 63
(1932), 28 (1930), 27 (1930), and 18 (1930).
141 "Canon 12 contemplates that a lawyer's fee should
not exceed the value of the services rendered. .
"Canon 12 applies, whether joint or separate fees ari
charged [by associate attorneys] . . .." ABA Opinion
204 (1940).
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CODE OF PROFESSIONAL RESPONSIBILITY
(B) This Disciplinary Rule does not prohibit pay-
ment to a former partner or associate pur-
suant to a separation or retirement agree-
ment.
DR 2-108 Agreements Restricting the Practice of
a Lawyer.
(A) A lawyer shall not be a party to or participate
in a partnership or employment agreement
with another lawyer that restricts the right
of a lawyer to practice law after the termina-
tion of a relationship created by the agree-
ment, except as a condition to payment of
retirement benefits.142
(B) In connection with the settlement of a con-
troversy or suit, a lawyer shall not enter into
an agreement that restricts his right to prac-
tice law.
DR 2-109 Acceptance of Employment.
(A) A lawyer shall not accept employment on be-
half of a person if he knows or it is obvious
that such person wishes to:
(1) Bring a legal action, conduct a defense,
or assert a position in litigation, or
otherwise have steps taken for him,
merely for the purpose of harassing or
maliciously injuring any person.143
(2) Present a claim or defense in litigation
that is not warranted under existing
law, unless it can be supported by good
faith argument for an extension, modi-
fication, or reversal of existing law.
DR 2-110 Withdrawal from Employment.144
(A) In General.
(1) If permission for withdrawal from em-
ployment is required by the rules of a
tribunal, a lawyer shall not withdraw
from employment in a proceeding be-
fore that tribunal without its permis-
sion.
(2) In any event, a lawyer shall not with-
draw from employment until he has
142 "[A] general covenant restricting an employed law-
yer, after leaving the employment, from practicing in the
community for a stated period, appears to this Committee
to be an unwarranted restriction on the right of a lawyer
to choose where he will practice and inconsistent with our
professional status. Accordingly, the Committee is of the
opinion it would be improper for the employing lawyer to
require the covenant and likewise for the employed lawyer
to agree to it." ABA Opinion 300 (1961).
143 See ABA Canon 30.
"Rule 13. . . . A member of the State Bar shall not
accept employment to prosecute or defend a case solely
out of spite, or solely for the purpose of harassing or de-
laying another . . .." Cal.Business and Professions
Code 6067 (West 1962).
144 Cf. ABA Canon 44.
taken reasonable steps to avoid fore-
seeable prejudice to the rights of his
client, including giving due notice to
his client, allowing time for employ-
ment of other counsel, delivering to the
client all papers and property to which
the client is entitled, and complying
with applicable laws and rules.
(3) A lawyer who withdraws from employ-
ment shall refund promptly any part
of a fee paid in advance that has not
been earned.
(B) Mandatory withdrawal.
A lawyer representing a client before a
tribunal, with its permission if required by its
rules, shall withdraw from employment, and
a lawyer representing a client in other matters
shall withdraw from employment, if:
(1) He knows or it is obvious that his client
is bringing the legal action, conducting
the defense, or asserting a position in
the litigation, or is otherwise having
steps taken for him, merely for the pur-
pose of harassing or maliciously injur-
ing any person.
(2) He knows or it is obvious that his con-
tinued employment will result in viola-
tion of a Disciplinary Rule.145
(3) His mental or physical condition ren-
ders it unreasonably difficult for him
to carry out the employment effective-
ly.
(4) He is discharged by his client.
(C) Permissive withdrawal.146
If DR 2-110(B) is not applicable, a lawyer
may not request permission to withdraw in
matters pending before a tribunal, and may
not withdraw in other matters, unless such
request or such withdrawal is because:
(1) His client:
(a) Insists upon presenting a claim
or defense that is not warranted
under existing law and cannot be
supported by good faith argument
for an extension, modification, or
reversal of existing law.147
(b) Personally seeks to pursue an il-
legal course of conduct.
(c) Insists that the lawyer pursue a
course of conduct that is illegal
or that is prohibited under the
Disciplinary Rules.
(d) By other conduct renders it un-
reasonably difficult for the law-
145 See also Code of Professional Responsibility, DR 5-
102 and DR 5-105.
146 Cf. ABA Canon 4.
147 Cf. Anders v. California, 386 U.S. 738, 18 L.Ed.2d
493, 87 S.Ct. 1396 (1967), rehearing denied, 388 U.S. 924,
18 L.Ed.2d 1377, 87 S.Ct. 2094 (1967).
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CODE OF PROFESSIONAL RESPONSIBILITY
yer to carry out his employment
effectively.
(e) Insists, in a matter not pending
before a tribunal, that the lawyer
engage in conduct that is contrary
to the judgment and advice of the
lawyer but not prohibited under
the Disciplinary Rules.
(f) Deliberately disregards an agree-
ment or obligation to the lawyer
as to expenses or fees.
His continued employment is likely to
result in a violation of a Disciplinary
Rule.
His inability to work with co-counsel in-
dicates that the best interests of the
client likely will be served by with-
drawal.
His mental or physical condition ren-
ders it difficult for him to carry out the
employment effectively.
His client knowingly and freely assents
to termination of his employment.
He believes in good faith, in a proceed-
ing pending before a tribunal, that the
tribunal will find the existence of other
good cause for withdrawal.
CANON 3
A Lawyer Should Assist in Preventing the
Unauthorized Practice of Law
ETHICAL CONSIDERATIONS
EC 3-1 The prohibition against the practice of
law by a layman is grounded in the need of the
public for integrity and competence of those who
undertake to render legal services. Because of the
fiduciary and personal character of the lawyer-
client relationship and the inherently complex na-
ture of our legal system, the public can better be
assured of the requisite responsibility and com-
petence if the practice of law is confined to those
who are subject to the requirements and regula-
tions imposed upon members of the legal profes-
sion.
EC 3-2 The sensitive variations in the considera-
tions that bear on legal determinations often make
it difficult even for a lawyer to exercise appro-
priate professional judgment, and it is therefore
essential that the personal nature of the relation-
ship of client and lawyer be preserved. Competent
professional judgment is the product of a trained
familiarity with law and legal processes, a dis-
ciplined, analytical approach to legal problems, and
a firm ethical commitment.
EC 3-3 A non-lawyer who undertakes to handle
legal matters is not governed as to integrity or
legal competence by the same rules that govern
the conduct of a lawyer. A lawyer is not only
subject to that regulation but also is committed to
high standards of ethical conduct. The public in-
terest is best served in legal matters by a regulated
profession committed to such standards.' The
Disciplinary Rules protect the public in that they
prohibit a lawyer from seeking employment by im-
proper overtures, from acting in cases of divided
loyalties, and from submitting to the control of
others in the exercise of his judgment. Moreover,
a person who entrusts legal matters to a lawyer
is protected by the attorney-client privilege and
by the duty of the lawyer to hold inviolate the
confidences and secrets of his client.
EC 3-4 A layman who seeks legal services often
is not in a position to judge whether he will re-
ceive proper professional attention. The entrust-
ment of a legal matter may well involve the con-
fidences, the reputation, the property, the freedom,
or even the life of the client. Proper protection
of members of the public demands that no person
be permitted to act in the confidential and demand-
ing capacity of a lawyer unless he is subject to the
regulations of the legal profession.
EC 3-5 It is neither necessary nor desirable to
attempt the formulation of a single, specific defi-
nition of what constitutes the practice of law.2
Functionally, the practice of law relates to the
rendition of services for others that call for the
professional judgment of a lawyer. The essence
of the professional judgment of the lawyer is his
educated ability to relate the general body and
philosophy of law to a specific legal problem of a
client; and thus, the public interest will be better
served if only lawyers are permitted to act in mat-
ters involving professional judgment. Where this
professional judgment is not involved, non-lawyers,
such as court clerks, police officers, abstracters,
and many governmental employees, may engage
in occupations that require a special knowledge of
law in certain areas. But the services of a lawyer
are essential in the public interest whenever the
exercise of professional legal judgment is required.
EC 3-6 A lawyer often delegates tasks to clerks,
secretaries, and other lay persons. Such delegation
is proper if the lawyer maintains a direct relation-
ship with his client, supervises the delegated work,
and has complete professional responsibility for
the work product. 3 This delegation enables a law-
1 "The condemnation of the unauthorized practice of law
is designed to protect the public from legal services by
persons unskilled in the law. The prohibition of lay in-
termediaries is intended to insure the loyalty of the law-
yer to the client unimpaired by intervening and possibly
conflicting interests."  Cheatham, Availability of Legal
Services: The Responsibility of the Individual Lawyer
and of the Organized Bar, 12 U.C.L.A.L.Rev. 438, 439
(1965).
2 "What constitutes unauthorized practice of the law in
a particular jurisdiction is a matter for determination by
the courts of that jurisdiction." ABA Opinion 198 (1939).
"In the light of the historical development of the law-
yer's functions, it is impossible to lay down an exhaustive
definition of 'the practice of law' by attempting to enu-
merate every conceivable act performed by lawyers in the
normal course of their work." State Bar of Arizona v.
Arizona Land Title & Trust Co., 90 Ariz. 76, 87, 366 P.2d
1, 8-9 (1961), modified, 91 Ariz. 293, 371 P.2d 1020 (1962).
3 "A lawyer can employ lay secretaries, lay investigators,
lay detectives, lay researchers, accountants, lay scriveners,
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CODE OF PROFESSIONAL RESPONSIBILITY
yer to render legal service more economically and
efficiently.
EC 3-7 The prohibition against a non-lawyer
practicing law does not prevent a layman from
representing himself, for then he is ordinarily ex-
posing only himself to possible injury. The pur-
pose of the legal profession is to make educated
legal representation available to the public; but
anyone who does not wish to avail himself of such
representation is not required to do so. Even so,
the legal profession should help members of the
public to recognize legal problems and to under-
stand why it may be unwise for them to act for
themselves in matters having legal consequences.
EC 3-8 Since a lawyer should not aid or en-
courage a layman to practice law, he should not
practice law in association with a layman or other-
wise share legal fees with a layman. 4 This does
not mean, however, that the pecuniary value of the
interest of a deceased lawyer in his firm or prac-
tice may not be paid to his estate or specified per-
sons such as his widow or heirs. 5 In like manner,
nonlawyer draftsmen or nonlawyer researchers. In fact,
he may employ nonlawyers to do any task for him except
counsel clients about law matters, engage directly in the
practice of law, appear in court or appear in formal pro-
ceedings a part of the judicial process, so long as it is he
who takes the work and vouches for it to the client and
becomes responsible to the client." ABA Opinion 316
(1967).
ABA Opinion 316 (1967) also stated that if a lawyer prac-
tices law as part of a law firm which includes lawyers
from several states, he may delegate tasks to firm mem-
bers in other states so long as he "is the person who, on
behalf of the firm, vouched for the work of all of the oth-
ers and, with the client and in the courts, did the legal acts
defined by that state as the practice of law."
"A lawyer cannot delegate his professional responsibility
to a law student employed in his office. He may avail
himself of the assistance of the student in many of the
fields of the lawyer's work, such as examination of case
law, finding and interviewing witnesses, making collections
of claims, examining court records, delivering papers,
conveying important messages, and other similar matters.
But the student is not permitted, until he is admitted to
the Bar, to perform the professional functions of a lawyer,
such as conducting court trials, giving professional advice
to clients or drawing legal documents for them. The stu-
dent in all his work must act as agent for the lawyer em-
ploying him, who must supervise his work and be responsi-
ble for his good conduct." ABA Opinion 85 (1932).
4 "No division of fees for legal services is proper, ex-
cept with another lawyer . . .." ABA Canon 34. Oth-
erwise, according to ABA Opinion 316 (1967), "[t]he Can-
ons of Ethics do not examine into the method by which
such persons are remunerated by the lawyer. . . . They
may be paid a salary, a per diem charge, a flat fee, a con-
tract price, etc."
See ABA Canons 33 and 47.
5 "Many partnership agreements provide that the active
partners, on the death of any one of them, are to make
payments to the estate or to the nominee of a deceased part-
ner on a pre-determined formula. It is only where the
effect of such an arrangement is to make the estate or
nominee a member of the partnership along with the sur-
viving partners that it is prohibited by Canon 34. Where
the payments are made in accordance with a pre-existing
agreement entered into by the deceased partner during his
lifetime and providing for a fixed method for determining
profit-sharing retirement plans of a lawyer or law
firm which include non-lawyer office employees
are not improper. 6 These limited exceptions to
the rule against sharing legal fees with laymen are
permissible since they do not aid or encourage
laymen to practice law.
EC 3-9 Regulation of the practice of law is ac-
complished principally by the respective states.?
Authority to engage in the practice of law con-
ferred in any jurisdiction is not per se a grant of
the right to practice elsewhere, and it is improper
for a lawyer to engage in practice where he is
not permitted by law or by court order to do so.
However, the demands of business and the mobility
of our society pose distinct problems in the regula-
tion of the practice of law by the states. 8 In fur-
therance of the public interest, the legal profession
should discourage regulation that unreasonably im-
poses territorial limitations upon the right of a
lawyer to handle the legal affairs of his client or
upon the opportunity of a client to obtain the serv-
ices of a lawyer of his choice in all matters includ-
ing the presentation of a contested matter in a
tribunal before which the lawyer is not permanent-
ly admitted to practice.9
their amount based upon the value of services rendered
during the partner's lifetime and providing for a fixed
period over which the payments are to be made, this is
not the case. Under these circumstances, whether the pay-
ments are considered to be delayed payment of compensa-
tion earned but withheld during the partner's lifetime, or
whether they are considered to be an approximation of his
interest in matters pending at the time of his death, is im-
material. In either event, as Henry S. Drinker says in his
book, Legal Ethics, at page 189: 'It would seem, however,
that a reasonable agreement to pay the estate a proportion
of the receipts for a reasonable period is a proper practical
settlement for the lawyer's services to his retirement or
death.' " ABA Opinion 308 (1963).
6 Cf. ABA Opinion 311 (1964).
7 "That the States have broad power to regulate the
practice of law is, of course, beyond question." United
Mine Workers v. Ill. State Bar Ass'n, 389 U.S. 217, 222
(1967).
"It is a matter of law, not of ethics, as to where an in-
dividual may practice law. Each state has its own rules."
ABA Opinion 316 (1967).
8 "Much of clients' business crosses state lines. People
are mobile, moving from state to state. Many metro-
politan areas cross state lines. It is common today to
have a single economic and social community involving
more than one state. The business of a single client may
involve legal problems in several states." ABA Opinion
316 (1967).
9 "[W]  e reaffirmed the general principle that legal serv-
ices to New Jersey residents with respect to New Jersey
matters may ordinarily be furnished only by New Jersey
counsel ; but we pointed out that there may be multistate
transactions where strict adherence to this thesis would not
be in the public interest and that, under the circumstances,
it would have been not only more costly to the client but
also 'grossly impractical and inefficient' to have had the
settlement negotiations conducted by separate lawyers from
different states." In re Estate of Waring, 47 N.J. 367,
376, 221 A.2d 193, 197 (1966).
Cf. ABA Opinion 316 (1967).
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DISCIPLINARY RULES
DR 3-101 Aiding Unauthorized Practice of Law.10
(A) A lawyer shall not aid a non-lawyer in the un-
authorized practice of law.11
(B) A lawyer shall not practice law in a jurisdic-
tion where to do so would be in violation of
regulations of the profession in that jurisdic-
tion.12
DR 3-102 Dividing Legal Fees with a Non-Law-
yer.
(A) A lawyer or law firm shall not share legal fees
with a non-lawyer,13 except that:
(1) An agreement by a lawyer with his
firm, partner, or associate may provide
for the payment of money, over a rea-
sonable period of time after his death,
to his estate or to one or more specified
persons.14
(2) A lawyer who undertakes to complete
unfinished legal business of a deceased
lawyer may pay to the estate of the de-
ceased lawyer that proportion of the
total compensation which fairly repre-
sents the services rendered by the de-
ceased lawyer.
(3) A lawyer or law firm may include non-
lawyer employees in a retirement plan,
even though the plan is based in whole
or in part on a profit-sharing arrange-
ment.15
DR 3-103 Forming a Partnership with a Non-
Lawyer.
(A) A lawyer shall not form a partnership with
a non-lawyer if any of the activities of the
partnership consist of the practice of law.16
10 Conduct permitted by the Disciplinary Rules of Can-
ons 2 and 5 does not violate DR 3-101.
11 See ABA Canon 47.
12 It should be noted, however, that a lawyer may en-
gage in conduct, otherwise prohibited by this Disciplinary
Rule, where such conduct is authorized by preemptive fed-
eral legislation. See Sperry v. Florida, 373 U.S. 379, 10
L.Ed.2d 428, 83 S.Ct. 1322 (1963).
13 See ABA Canon 34 and ABA Opinions 316 (1967), 180
(1938), and 48 (1931).
"The receiving attorney shall not under any guise or
form share his fee for legal services with a lay agency,
personal or corporate, without prejudice, however, to the
right of the lay forwarder to charge and collect from the,
creditor proper compensation for non-legal services ren-
dered by the law [sic] forwarder which are separate and
apart from the services performed by the receiving at-
torney." ABA Opinion 294 (1958).
14 See ABA Opinions 309 (1963) and 266 (1945).
15 Cf. ABA Opinion 311 (1964).
16 See ABA Canon 33; cf. ABA Opinions 239 (1942) and
201 (1940).
ABA Opinion 316 (1967) states that lawyers licensed in
different jurisdictions may, under certain conditions, en-
ter "into an arrangement for the practice of law" and
that a lawyer licensed in State A is not, for such purpose,
a layman in State B.
CANON 4
A Lawyer Should Preserve the Confidences
and Secrets of a Client
ETHICAL CONSIDERATIONS
EC 4-1 Both the fiduciary relationship existing
between lawyer and client and the proper function-
ing of the legal system require the preservation
by the lawyer of confidences and secrets of one
who has employed or sought to employ him.1 A
client must feel free to discuss whatever he wishes
with his lawyer and a lawyer must be equally free
to obtain information beyond that volunteered by
his client.2 A lawyer should be fully informed of
all the facts of the matter he is handling in order
for his client to obtain the full advantage of our
legal system. It is for the lawyer in the exercise
of his independent professional judgment to sepa-
rate the relevant and important from the irrelevant
and unimportant. The observance of the ethical
obligation of a lawyer to hold inviolate the con-
fidences and secrets of his client not only facili-
tates the full development of facts essential to
proper representation of the client but also en-
courages laymen to seek early legal assistance.
EC 4-2 The obligation to protect confidences and
secrets obviously does not preclude a lawyer from
revealing information when his client consents
1 See ABA Canons 6 and 37 and ABA Opinion 287 (1953).
"The reason underlying the rule with respect to confi-
dential communications between attorney and client is
well stated in Mecham on Agency, 2d Ed., Vol. 2, § 2297,
as follows : 'The purposes and necessities of the relation
between a client and his attorney require, in many cases,
on the part of the client, the fullest and freest disclosures
to the attorney of the client's objects, motives and acts.
This disclosure is made in the strictest confidence, rely-
ing upon the attorney's honor and fidelity. To permit the
attorney to reveal to others what is so disclosed, would be
not only a gross violation of a sacred trust upon his
part, but it would utterly destroy and prevent the use-
fulness and benefits to be derived from professional assist-
ance. Based upon considerations of public policy, there-
fore, the law wisely declares that all confidential com-
munications and disclosures, made by a client to his legal
adviser for the purpose of obtaining his professional aid
or advice, shall be strictly privileged ;—that the attorney
shall not be permitted, without the consent of his client,—
and much less will he be compelled—to reveal or disclose
communications made to him under such circumstances.' "
ABA Opinion 250 (1943).
"While it is true that complete revelation of relevant
facts should be encouraged for trial purposes, nevertheless
an attorney's dealings with his client, if both are sin-
cere, and if the dealings involve more than mere technical
matters, should be immune to discovery proceedings.
There must be freedom from fear of revealment of mat-
ters disclosed to an attorney because of the peculiarly
intimate relationship existing." Ellis-Foster Co. v. Union
Carbide & Carbon Corp., 159 F.Supp. 917, 919 (D.N.J.
1958).
Cf. ABA Opinions 314 (1965), 274 (1946) and 268 (1945).
2 "While it is the great purpose of law to ascertain
the truth, there is the countervailing necessity of insuring
the right of every person to freely and fully confer and
confide in one having knowledge of the law, and skilled in
its practice, in order that the former may have adequate
advice and a proper defense. This assistance can be made
safely and readily available only when the client is free
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CODE OF PROFESSIONAL RESPONSIBILITY
after full disclosure, 3 when necessary to perform
his professional employment, when permitted by
a Disciplinary Rule, or when required by law. Un-
less the client otherwise directs, a lawyer may dis-
close the affairs of his client to partners or asso-
ciates of his firm. It is a matter of common knowl-
edge that the normal operation of a law office ex-
poses confidential professional information to non-
lawyer employees of the office, particularly secre-
taries and those having access to the files; and this
obligates a lawyer to exercise care in selecting and
training his employees so that the sanctity of all
confidences and secrets of his clients may be pre-
served. If the obligation extends to two or more
clients as to the same information, a lawyer should
obtain the permission of all before revealing the
information. A lawyer must always be sensitive
to the rights and wishes of his client and act
scrupulously in the making of decisions which may
involve the disclosure of information obtained in
his professional relationship. 4 Thus, in the ab-
sence of consent of his client after full disclosure,
a lawyer should not associate another lawyer in
the handling of a matter; nor should he, in the ab-
sence of consent, seek counsel from another lawyer
if there is a reasonable possibility that the identi
of the client or his confidences or secrets would be
revealed to such lawyer. Both social amenities
and professional duty should cause a lawyer to
shun indiscreet conversations concerning his
clients.
EC 4-3 Unless the client otherwise directs, it is
not improper for a lawyer to give limited informa-
tion from his files to an outside agency necessary
for statistical, bookkeeping, accounting, data proc-
essing, banking, printing, or other legitimate pur-
poses, provided he exercises due care in the selec-
tion of the agency and warns the agency that the
information must be kept confidential.
EC 4-4 The attorney-client privilege is more limit-
ed than the ethical obligation of a lawyer to guard
the confidences and secrets of his client. This
ethical precept, unlike the evidentiary privilege,
exists without regard to the nature or source of
information or the fact that others share the
knowledge. A lawyer should endeavor to act in
a manner which preserves the evidentiary privi-
lege; for example, he should avoid professional
from the consequences of apprehension of disclosure by
reason of the subsequent statements of the skilled lawyer."
Baird v. Koerner, 279 F.2d 623, 629-30 (9th Cir. 1960).
Cf. ABA Opinion 150 (1936).
3 "Where . . . [a client] knowingly and after full
disclosure participates in a [legal fee] financing plan
which requires the furnishing of certain information to
the bank, clearly by his conduct he has waived any priv-
ilege as to that information." ABA Opinion 320 (1968).
4 "The lawyer must decide when he takes a case whether
it is a suitable one for him to undertake and after this
decision is made, he is not justified in turning against
his client by exposing injurious evidence entrusted to
him. . . . [D]oing something intrinsically regrettable,
because the only alternative involves worse consequences,
is a necessity in every profession." Williston, Life and
Law 271 (1940).
Cf. ABA Opinions 177 (1938) and 83 (1932).
discussions in the presence of persons to whom the
privilege does not extend. A lawyer owes an ob-
ligation to advise the client of the attorney-client
privilege and timely to assert the privilege unless
it is waived by the client.
EC 4-5 A lawyer should not use information ac-
quired in the course of the representation of a
client to the disadvantage of the client and a law-
yer should not use, except with the consent of his
client after full disclosure, such information for
his own purposes. 5 Likewise, a lawyer should be
diligent in his efforts to prevent the misuse of such
information by his employees and associates.6
Care should be exercised by a lawyer to prevent
the disclosure of the confidences and secrets of
one client to another," and no employment should
be accepted that might require such disclosure.
EC 4-6 The obligation of a lawyer to preserve the
confidences and secrets of his client continues after
the termination of his employment. 8 Thus a law-
yer should not attempt to sell a law practice as a
going business because, among other reasons, to
do so would involve the disclosure of confidences
and secrets. 9 A lawyer should also provide for the
protection of the confidences and secrets of his
client following the termination of the practice of
the lawyer, whether termination is due to death,
disability, or retirement. For example, a lawyer
might provide for the personal papers of the client
to be returned to him and for the papers of the
lawyer to be delivered to another lawyer or to be
destroyed. In determining the method of disposi-
tion, the instructions and wishes of the client
should be a dominant consideration.
DISCIPLINARY RULES
DR 4-101 Preservation of Confidences and Se-
crets of a Client.10
(A) "Confidence" refers to information protected
by the attorney-client privilege under applica-
ble law, and "secret" refers to other informa-
tion gained in the professional relationship
that the client has requested be held inviolate
or the disclosure of which would be em-
See ABA Canon 11.
6 See ABA Canon 37.
7 See ABA Canons 6 and 37.
"[A]n attorney must not accept professional employment
against a client or a former client which will, or even may
require him to use confidential information obtained by the
attorney in the course of his professional relations with
such client regarding the subject matter of the employ-
ment . . " ABA Opinion 165 (1936).
8 See ABA Canon 37.
"Confidential communications between an attorney and
his client, made because of the relationship and concerning
the subject-matter of the attorney's employment, are
generally privileged from disclosure without the con-
sent of the client, and this privilege outlasts the attor-
ney's employment. Canon 37." ABA Opinion 154 (1936).
9 Cf. ABA Opinion 266 (1945).
10 See ABA Canon 37; cf. ABA Canon 6.
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barrassing or would be likely to be detrimen-
tal to the client.
(B) Except when permitted under DR 4-101(C),
a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his
client."
(2) Use a confidence or secret of his client
to the disadvantage of the client.
(3) Use a confidence or secret of his client
for the advantage of himself 12 or of a
third person, 13 unless the client con-
sents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent
of the client or clients affected, but only
after a full disclosure to them.14
(2) Confidences or secrets when permitted
under Disciplinary Rules or required by
law or court order.15
11 "§ 6068 . . It is the duty of an attorney :
"(e) To maintain inviolate the confidence, and at every
peril to himself to preserve the secrets, of his client." Cal.
Business and Professions Code § 6068 (West 1962). Vir-
tually the same provision is found in the Oregon statutes.
Ore.Rev.Stats. ch. 9, § 9.460(5).
"Communications between lawyer and client are priv-
ileged (Wigmore on Evidence, 3d. Ed., Vol. 8, §§ 2290-
2329). The modern theory underlying the privilege is sub-
jective and is to give the client freedom of apprehension
in consulting his legal adviser (ibid., § 2290, p. 548). The
privilege applies to communications made in seeking legal
advice for any purpose (ibid., § 2294, p. 563). The mere
circumstance that the advice is given without charge there-
fore does not nullify the privilege (ibid., § 2303)." ABA
Opinion 216 (1941).
"It is the duty of an attorney to maintain the confidence
and preserve inviolate the secrets of his client . .  ."
ABA Opinion 155 (1936).
12 See ABA Canon 11.
"The provision respecting employment is in accord
with the general rule announced in the adjudicated cases
that a lawyer may not make use of knowledge or informa-
tion acquired by him through his professional relations
with his client, or in the conduct of his client's business,
to his own advantage or profit (7 C.J.S., § 125, p. 958;
Healy v. Gray, 184 Iowa 111, 168 N.W. 222; Baumgardner
v. Hudson, D.C.App., 277 F. 552; Goodrum v. Clement,
D.C.App., 277 F. 586)." ABA Opinion 250 (1943).
13 See ABA Opinion 177 (1938).
14 "[A lawyer] may not divulge confidential communi-
cations, information, and secrets imparted to him by the
client or acquired during their professional relations, un-
less he is authorized to do so by the client (People v. Ger-
old, 265 Ill. 448, 107 N.E. 165, 178; Murphy v. Riggs, 238
Mich. 151, 213 N.W. 110, 112; Opinion of this Committee,
No. 91)." ABA Opinion 202 (1940).
Cf. ABA Opinion 91 (1933).
15 "A defendant in a criminal case when admitted to
bail is not only regarded as in the custody of his bail, but
he is also in the custody of the law, and admission to
bail does not deprive the court of its inherent power to
deal with the person of the prisoner. Being in lawful
custody, the defendant is guilty of an escape when he
gains his liberty before he is delivered in due process of
law, and is guilty of a separate offense for which he may
(3) The intention of his client to commit a
crime 16 and the information necessary
to prevent the crime.17
(4) Confidences or secrets necessary to es-
tablish or collect his fee 18 or to defend
himself or his employees or associates
against an accusation of wrongful con-
duct.19
(D) A lawyer shall exercise reasonable care to
prevent his employees, associates, and others
whose services are utilized by him from dis-
closing or using confidences or secrets of a
client, except that a lawyer may reveal the
information allowed by DR 4-101(C) through
an employee.
be punished. In failing to disclose his client's where-
abouts as a fugitive under these circumstances the attor-
ney would not only be aiding his client to escape trial on
the charge for which he was indicted, but would likewise
be aiding him in evading prosecution for the additional
offense of escape.
"It is the opinion of the committee that under such cir-
cumstances the attorney's knowledge of his client's where-
abouts is not privileged, and that he may be disciplined
for failing to disclose that information to the proper au-
thorities. . . " ABA Opinion 155 (1936).
"We held in Opinion 155 that a communication by a
client to his attorney in respect to the future commission
of an unlawful act or to a continuing wrong is not priv-
ileged from disclosure. Public policy forbids that the re-
lation of attorney and client should be used to conceal
wrongdoing on the part of the client.
"When an attorney representing a defendant in a
criminal case applies on his behalf for probation or suspen-
sion of sentence, he represents to the court, by implication
at least, that his client will abide by the terms and con-
ditions of the court's order. When that attorney is later
advised of a violation of that order, it is his duty to ad-
vise his client of the consequences of his act, and endeavor
to prevent a continuance of the wrongdoing. If his client
thereafter persists in violating the terms and conditions of
his probation, it is the duty of the attorney as an officer
of the court to advise the proper authorities concerning his
client's conduct. Such information, even though coming
to the attorney from the client in the course of his profes-
sional relations with respect to other matters in which he
represents the defendant, is not privileged from disclosure.
. ." ABA Opinion 156 (1936).
16 ABA Opinion 314 (1965) indicates that a lawyer must
disclose even the confidences of his clients if "the facts
in the attorney's possession indicate beyond reasonable
doubt that a crime will be committed."
See ABA Opinion 155 (1936).
17 See ABA Canon 37 and ABA Opinion 202 (1940).
18 Cf. ABA Opinion 250 (1943).
19 See ABA Canon 37 and ABA Opinions 202 (1940) and
19 (1930).
"[T]he adjudicated cases recognize an exception to the
rule [that a lawyer shall not reveal the confidences of
his client], where disclosure is necessary to protect the
attorney's interests arising out of the relation of attorney
and client in which disclosure was made.
"The exception is stated in Mechem on Agency, 2d Ed.,
Vol. 2, § 2313, as follows : 'But the attorney may disclose
information received from the client when it becomes
necessary for his own protection, as if the client should
bring an action against the attorney for negligence or mis-
conduct, and it became necessary for the attorney to
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CODE OF PROFESSIONAL RESPONSIBILITY
CANON 5
A Lawyer Should Exercise Independent
Professional Judgment on Behalf
of a Client
ETHICAL CONSIDERATIONS
EC 5-1 The professional judgment of a lawyer
should be exercised, within the bounds of the law,
solely for the benefit of his client and free of com-
promising influences and loyalties. 1 Neither his
show what his instructions were, or what was the nature
of the duty which the client expected him to perform.
So if it became necessary for the attorney to bring an ac-
tion against the client, the client's privilege could not pre-
vent the attorney from disclosing what was essential as
a means of obtaining or defending his own rights.'
"Mr. Jones, in his Commentaries on Evidence, 2d Ed.,
Vol. 5, § 2165, states the exception thus : 'It has frequently
been held that the rule as to privileged communications
does not apply when litigation arises between attorney and
client to the extent that their communications are relevant
to the issue. In such cases, if the disclosure of privileged
communications becomes necessary to protect the attorney's
rights, he is released from those obligations of secrecy
which the law places upon him. He should not, however,
disclose more than is necessary for his own protection. It
would be a manifest injustice to allow the client to take ad-
vantage of the rule of exclusion as to professional confi-
dence to the prejudice of his attorney, or that it should.
be carried to the extent of depriving the attorney of the
means of obtaining or defending his own rights. In such
cases the attorney is exempted from the obligations of
secrecy.' " ABA Opinion 250 (1943).
1 Cf. ABA Canon 35.
"[A lawyer's] fiduciary duty is of the highest order
and he must not represent interests adverse to those of
the client. It is also true that because of his professional
responsibility and the confidence and trust which his
client may legitimately repose in him, he must adhere to a
high standard of honesty, integrity and good faith in deal-
ing with his client. He is not permitted to take advantage
of his position or superior knowledge to impose upon the
client; nor to conceal facts or law, nor in any way deceive
him without being held responsible therefor." Smoot v.
Lund, 13 Utah 2d 168, 172, 369 P.2d 933, 936 (1962).
"When a client engages the services of a lawyer in a
given piece of business he is entitled to feel that, until
that business is finally disposed of in some manner, he
has the undivided loyalty of the one upon whom he looks
as his advocate and champion. If, as in this case, he is
sued and his home attached by his own attorney, who is
representing him in another matter, all feeling of loyalty
is necessarily destroyed, and the profession is exposed to
the charge that it is interested only in money." Grievance
Comm. v. Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84
(1964).
"One of the cardinal principles confronting every attor-
ney in the representation of a client is the requirement of
complete loyalty and service in good faith to the best of
his ability. In a criminal case the client is entitled to
a fair trial, but not a perfect one. These are fundamental
requirements of due process under the Fourteenth Amend-
ment. . . . The same principles are applicable in
Sixth Amendment cases (not pertinent herein) and sug-
gest that an attorney should have no conflict of interest
and that he must devote his full and faithful efforts to-
ward the defense of his client." Johns v. Smyth, 176
F.Supp. 949, 952 (E.D.Va.1959), modified, United States
ex rel. Wilkins v. Banmiller, 205 F.Supp. 123, 128 n. 5
(E.D.Pa.1962), aff'd, 325 F.2d 514 (3d Cir. 1963), cert. de-
nied, 379 U.S. 847, 13 L.Ed.2d 51, 85 S.Ct. 87 (1964).
personal interests, the interests of other clients,
nor the desires of third persons should be permit-
ted to dilute his loyalty to his client.
Interests of a Lawyer That May Affect His Judg-
ment
EC 5-2 A lawyer should not accept proffered
employment if his personal interests or desires
will, or there is a reasonable probability that they
will, affect adversely the advice to be given or
services to be rendered the prospective client.2
After accepting employment, a lawyer carefully
should refrain from acquiring a property right or
assuming a position that would tend to make his
judgment less protective of the interests of his
client.
EC 5-3 The self-interest of a lawyer resulting
from his ownership of property in which his client
also has an interest or which may affect property
of his client may interfere with the exercise of
free judgment on behalf of his client. If such in-
terference would occur with respect to a prospec-
tive client, a lawyer should decline employment
proffered by him. After accepting employment, a
lawyer should not acquire property rights that
would adversely affect his professional judgment
in the representation of his client. Even if the
property interests of a lawyer do not presently in-
terfere with the exercise of his independent judg-
ment, but the likelihood of interference can rea-
sonably be foreseen by him, a lawyer should ex-
plain the situation to his client and should decline
employment or withdraw unless the client con-
sents to the continuance of the relationship after
full disclosure. A lawyer should not seek to per-
suade his client to permit him to invest in an un-
dertaking of his client nor make improper use of
his professional relationship to influence his client
to invest in an enterprise in which the lawyer is
interested.
EC 5-4 If, in the course of his representation of
a client, a lawyer is permitted to receive from his
client a beneficial ownership in publication rights
relating to the subject matter of the employment,
he may be tempted to subordinate the interests
of his client to his own anticipated pecuniary gain.
2 "Attorneys must not allow their private interests to
conflict with those of their clients. . . . They owe
their entire devotion to the interests of their clients."
United States v. Anonymous, 215 F.Supp. 111, 113 (E.D.
Tenn.1963).
"[T]he court [below] concluded that a firm may not ac-
cept any action against a person whom they are presently
representing even though there is no relationship between
the two cases. In arriving at this conclusion, the court
cited an opinion of the Committee on Professional Ethics
of the New York County Lawyers' Association which
stated in part : 'While under the circumstances * * *
there may be no actual conflict of interest * * * "main-
tenance of public confidence in the Bar requires an at-
torney who has accepted representation of a client to
decline, while representing such client, any employment
from an adverse party in any matter even though wholly
unrelated to the original retainer." See Question and.
Answer No. 350, N.Y. County L. Ass'n, Questions and An-
swer No. 450 (June 21, 1956).' " Grievance Comm. v.
Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84 (1964).
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CODE OF PROFESSIONAL RESPONSIBILITY
For example, a lawyer in a criminal case who ob-
tains from his client television, radio, motion pic-
ture, newspaper, magazine, book, or other publica-
tion rights with respect to the case may be influ-
enced, consciously or unconsciously, to a course of
conduct that will enhance the value of his publica-
tion rights to the prejudice of his client. To pre-
vent these potentially differing interests, such ar-
rangements should be scrupulously avoided prior
to the termination of all aspects of the matter giv-
ing rise to the employment, even though his em-
ployment has previously ended.
EC 5-5 A lawyer should not suggest to his client
that a gift be made to himself or for his benefit.
If a lawyer accepts a gift from his client, he is
peculiarly susceptible to the charge that he unduly
influenced or overreached the client. If a client
voluntarily offers to make a gift to his lawyer, the
lawyer may accept the gift, but before doing so, he
should urge that his client secure disinterested ad-
vice from an independent, competent person who is
cognizant of all the circumstances. 3 Other than in
exceptional circumstances, a lawyer should insist
that an instrument in which his client desires to
name him beneficially be prepared by another law-
yer selected by the client.4
EC 5-6 A lawyer should not consciously influ-
ence a client to name him as executor, trustee, or
lawyer in an instrument. In those cases where a
client wishes to name his lawyer as such, care
should be taken by the lawyer to avoid even the
appearance of impropriety.5
EC 5-7 The possibility of an adverse effect upon
the exercise of free judgment by a lawyer on be-
half of his client during litigation generally makes
it undesirable for the lawyer to acquire a proprie-
tary interest in the cause of his client or otherwise
3 "Courts of equity will scrutinize with jealous vigilance
transactions between parties occupying fiduciary relations
toward each other. . . . A deed will not be held in-
valid, however, if made by the grantor with full knowl-
edge of its nature and effect, and because of the deliberate,
voluntary and intelligent desire of the grantor. . . .
Where a fiduciary relation exists, the burden of proof is
on the grantee or beneficiary of an instrument executed
during the existence of such relationship to show the fair-
ness of the transaction, that it was equitable and just
and that it did not proceed from undue influence. . . .
The same rule has application where an attorney engages
in a transaction with a client during the existence of the
relation and is benefited thereby. . . . Conversely,
an attorney is not prohibited from dealing with his client or
buying his property, and such contracts, if open, fair and
honest, when deliberately made, are as valid as contracts
between other parties. . • . [I]mportant factors in
determining whether a transaction is fair include a show-
ing by the fiduciary (1) that he made a full and frank
disclosure of all the relevant information that he had ;
(2) that the consideration was adequate ; and (3) that the
principal had independent advice before completing the
transaction." McFall v. Braden, 19 I11.2d 108, 117-18, 166
N.E.2d 46, 52 (1960).
4 See State ex rel. Nebraska State Bar Ass'n v. Richards,
165 Neb. 80, 94-95, 84 N.W.2d 136, 146 (1957).
to become financially interested in the outcome of
the litigation. 6 However, it is not improper for a
lawyer to protect his right to collect a fee for his
services by the assertion of legally permissible
liens, even though by doing so he may acquire an
interest in the outcome of litigation. Although a
contingent fee arrangement 7 gives a lawyer a
financial interest in the outcome of litigation, a
reasonable contingent fee is permissible in civil
cases because it may be the only means by which
a layman can obtain the services of a lawyer of
his choice. But a lawyer, because he is in a better
position to evaluate a cause of action, should enter
into a contingent fee arrangement only in those
instances where the arrangement will be beneficial
to the client.
EC 5-8 A financial interest in the outcome of liti-
gation also results if monetary advances are made
by the lawyer to his client. 8 Although this assist-
ance generally is not encouraged, there are in-
stances when it is not improper to make loans to
a client. For example, the advancing or guarantee-
ing of payment of the costs and expenses of litiga-
tion by a lawyer may be the only way a client can
enforce his cause of action, 9 but the ultimate lia-
bility for such costs and expenses must be that
of the client.
EC 5-9 Occasionally a lawyer is called upon to
decide in a particular case whether he will be a
witness or an advocate. If a lawyer is both coun-
sel and witness, he becomes more easily impeach-
able for interest and thus may be a less effective
witness. Conversely, the opposing counsel may
be handicapped in challenging the credibility of the
lawyer when the lawyer also appears as an advo-
cate in the case. An advocate who becomes a wit-
ness is in the unseemly and ineffective position of
arguing his own credibility. The roles of an ad-
vocate and of a witness are inconsistent; the func-
tion of an advocate is to advance or argue the
cause of another, while that of a witness is to state
facts objectively.
EC 5-10 Problems incident to the lawyer-witness
relationship arise at different stages; they relate
6 See ABA Canon 10.
7 See Code of Professional Responsibility, EC 2-20.
8 See ABA Canon 42.
9 "Rule 3a. . . . A member of the State Bar shall
not directly or indirectly pay or agree to pay, or repre-
sent or sanction the representation that he will pay, med-
ical, hospital or nursing bills or other personal expenses
incurred by or for a client, prospective or existing ; pro-
vided this rule shall not prohibit a member
"(1) with the consent of the client, from paying or
agreeing to pay to third persons such expenses from funds
collected or to be collected for the client; or
(2) after he has been employed, from lending money to
his client upon the client's promise in writing to repay
such loan; or
(3) from advancing the costs of prosecuting or defend-
ing a claim or action. Such costs within the meaning of
this subparagraph (3) include all taxable costs or disburse-
ments, costs or investigation and costs of obtaining and
presenting evidence." Cal. Business and Professions Code
See ABA Canoe 9. § 6076 (West Supp.1967).
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CODE OF PROFESSIONAL RESPONSIBILITY
either to whether a lawyer should accept employ-
ment or should withdraw from employment. 10 Re-
gardless of when the problem arises, his decision
is to be governed by the same basic considerations.
It is not objectionable for a lawyer who is a po-
tential witness to be an advocate if it is unlikely
that he will be called as a witness because his tes-
timony would be merely cumulative or if his testi-
mony will relate only to an uncontested issue.11
In the exceptional situation where it will be man-
ifestly unfair to the client for the lawyer to refuse
employment or to withdraw when he will likely
be a witness on a contested issue, he may serve as
advocate even though he may be a witness. 12 In
making such decision, he should determine the per-
sonal or financial sacrifice of the client that may
result from his refusal of employment or with-
drawal therefrom, the materiality of his testimony,
and the effectiveness of his representation in view
of his personal involvement. In weighing these
factors, it should be clear that refusal or with-
drawal will impose an unreasonable hardship upon
the client before the lawyer accepts or continues
the employment. 13 Where the question arises,
doubts should be resolved in favor of the lawyer
testifying and against his becoming or continuing
as an advocate.'4
3.0 "When a lawyer knows, prior to trial, that he will
be a necessary witness, except as to merely formal mat-
ters such as identification or custody of a document or
the like, neither he nor his firm or associates should con-
duct the trial. If, during the trial, he discovers that the
ends of justice require his testimony, he should, from that
point on, if feasible and not prejudicial to his client's
case, leave further conduct of the trial to other counsel.
If circumstances do not permit withdrawal from the con-
duct of the trial, the lawyer should not argue the credi-
bility of his own testimony." A Code of Trial Conduct:
Promulgated by the American College of Trial Lawyers,
43 A.B.A.J. 223, 224-25 (1957).
11 Cf. Canon 19 : "When a lawyer is a witness for his
client, except as to merely formal matters, such as the
attestation or custody of an instrument and the like, he
should leave the trial of the case to other counsel."
12 "It is the general rule that a lawyer may not testify
in litigation in which he is an advocate unless circum-
stances arise which could not be anticipated and it is
necessary to prevent a miscarriage of justice. In those rare
cases where the testimony of an attorney is needed to
protect his client's interests, it is not only proper but
mandatory that it be forthcoming." Schwartz v. Wenger,
267 Minn. 40, 43-44, 124 N.W.2d 489, 492 (1963).
13 "The great weight of authority in this country holds
that the attorney who acts as counsel and witness, in be-
half of his client, in the same cause on a material matter,
not of a merely formal character, and not in an emergency,
but having knowledge that he would be required to be a
witness in ample time to have secured other counsel and
given up his service in the case, violates a highly im-
portant provision of the Code of Ethics and a rule of
professional conduct, but does not commit a legal error
in so testifying, as a result of which a new trial will be
granted."  Erwin M. Jennings Co. v. DiGenova, 107
Conn. 491, 499, 141 A. 866, 869 (1928).
14 "[C]ases may arise, and in practice often do arise, in
which there would be a failure of justice should the at-
torney withhold his testimony. in such a case it would
be a vicious professional sentiment which would deprive
EC 5-11 A lawyer should not permit his personal
interests to influence his advice relative to a sug-
gestion by his client that additional counsel be
employed. 15 In like manner, his personal interests
should not deter him from suggesting that addi-
tional counsel be employed; on the contrary, he
should be alert to the desirability of recommend-
ing additional counsel when, in his judgment, the
proper representation of his client requires it.
However, a lawyer should advise his client not to
employ additional counsel suggested by the client
if the lawyer believes that such employment would
be a disservice to the client, and he should dis-
close the reasons for his belief.
EC 5-12 Inability of co-counsel to agree on a mat-
ter vital to the representation of their client re-
quires that their disagreement be submitted by
them jointly to their client for his resolution, and
the decision of the client shall control the action
to be taken.16
EC 5-13 A lawyer should not maintain member-
ship in or be influenced by any organization of
employees that undertakes to prescribe, direct, or
suggest when or how he should fulfill his pro-
fessional obligations to a person or organization
that employs him as a lawyer. Although it is not
necessarily improper for a lawyer employed by a
corporation or similar entity to be a member of
an organization of employees, he should be vig-
ilant to safeguard his fidelity as a lawyer to his
employer, free from outside influences.
Interests of Multiple Clients
EC 5-14 Maintaining the independence of profes-
sional judgment required of a lawyer precludes
his acceptance or continuation of employment that
will adversely affect his judgment on behalf of or
dilute his loyalty to a client. 17 This problem arises
whenever a lawyer is asked to represent two or
more clients who may have differing interests,
whether such interests be conflicting, inconsistent,
diverse, or otherwise discordant.18
EC 5-15 If a lawyer is requested to undertake or
to continue representation of multiple clients hav-
ing potentially differing interests, he must weigh
carefully the possibility that his judgment may be
impaired or his loyalty divided if he accepts or
the client of the benefit of his attorney's testimony." Con-
nolly v. Straw, 53 Wis. 645, 649, 11 N.W. 17, 19 (1881).
But see Canon 19: "Except when essential to the ends of
justice, a lawyer should avoid testifying in court in be-
half of his client."
15 Cf. ABA Canon 7.
16 See ABA Canon 7.
17 See ABA Canon 6; cf. ABA Opinions 261 (1944), 242
(1942), 142 (1935), and 30 (1931).
18 The ABA Canons speak of "conflicting interests"
rather than "differing interests" but make no attempt to
define such other than the statement in Canon 6: "Within
the meaning of this canon, a lawyer represents conflicting
interests when, in behalf of one client, it is his duty to con-
tend for that which duty to another client requires him
to oppose."
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continues the employment. He should resolve all
doubts against the propriety of the representation.
A lawyer should never represent in litigation mul-
tiple clients with differing interests, 19 and there
are few situations in which he would be justified
in representing in litigation multiple clients with
potentially differing interests. If a lawyer ac-
cepted such employment and the interests did be-
come actually differing, he would have to with-
draw from employment with likelihood of result-
ing hardship on the clients; and for this reason
it is preferable that he refuse the employment ini-
tially. On the other hand, there are many in-
stances in which a lawyer may properly serve mul-
tiple clients having potentially differing interests
in matters not involving litigation. If the inter-
ests vary only slightly, it is generally likely that
the lawyer will not be subjected to an adverse
influence and that he can retain his independent
judgment on behalf of each client; and if the in-
terests become differing, withdrawal is less likely
to have a disruptive effect upon the causes of his
clients.
EC 5-16 In those instances in which a lawyer is
justified in representing two or more clients hav-
ing differing interests, it is nevertheless essential
that each client be given the opportunity to evalu-
ate his need for representation free of any poten-
tial conflict and to obtain other counsel if he so
desires.20 Thus before a lawyer may represent
19 "Canon 6 of the Canons of Professional Ethics, adopt-
ed by the American Bar Association on September 30,
1937, and by the Pennsylvania Bar Association on January
7, 1938, provides in part that `It is unprofessional to
represent conflicting interests, except by express consent
of all concerned given after a full disclosure of the facts.
Within the meaning of this Canon, a lawyer represents
conflicting interests when, in behalf of one client, it is
his duty to contend for that which duty to another client
requires him to oppose.' The full disclosure required by
this canon contemplates that the possibly adverse effect
of the conflict be fully explained by the attorney to the
client to be affected and by him thoroughly understood.
"The foregoing canon applies to cases where the cir-
cumstances are such that possibly conflicting interests
may permissibly be represented by the same attorney.
But manifestly, there are instances where the conflicts
of interest are so critically adverse as not to admit of one
attorney's representing both sides. Such is the situation
which this record presents. No one could conscionably
contend that the same attorney may represent both the
plaintiff and defendant in an adversary action. Yet, that
is what is being done in this case." Jedwabny v. Phila-
delphia Transportation Co., 390 Pa. 231, 235, 135 A.2d 252,
254 (1957), cert. denied, 355 U.S. 966, 2 L.Ed.2d 541, 78
S.Ct. 557 (1958).
20 "Glasser wished the benefit of the undivided assist-
ance of counsel of his own choice. We think that such a
desire on the part of an accused should be respected. Ir-
respective of any conflict of interest, the additional burden
of representing another party may conceivably impair
counsel's effectiveness.
"To determine the precise degree of prejudice sustained.
by Glasser as a result of the court's appointment of Stew-
art as counsel for Kretske is at once difficult and unneces-
sary. The right to have the assistance of counsel Is too
fundamental and absolute to allow courts to indulge in
nice calculations as to the amount of prejudice arising from
multiple clients, he should explain fully to each
client the implications of the common representa-
tion and should accept or continue employment
only if the clients consent.21 If there are present
other circumstances that might cause any of the
multiple clients to question the undivided loyalty
of the lawyer, he should also advise all of the
clients of those circumstances.22
EC 5-17 Typically recurring situations involving
potentially differing interests are those in which
a lawyer is asked to represent co-defendants in a
criminal case, co-plaintiffs in a personal injury
case, an insured and his insurer,23 and benefici-
aries of the estate of a decedent. Whether a law-
yer can fairly and adequately protect the interests
of multiple clients in these and similar situations
depends upon an analysis of each case. In certain
circumstances, there may exist little chance of the
judgment of the lawyer being adversely affected
by the slight possibility that the interests will be-
come actually differing; in other circumstances,
the chance of adverse effect upon his judgment is
not unlikely.
EC 5-18 A lawyer employed or retained by a cor-
poration or similar entity owes his allegiance to
the entity and not to a stockholder, director, offi-
cer, employee, representative, or other person con-
nected with the entity. In advising the entity, a
lawyer should keep paramount its interests and
his professional judgment should not be influenced
its denial." Glasser v. United States, 315 U.S. 60, 75-76,
86 L.Ed. 680, 702 S.Ct. 457, 467 (1942).
21 See ABA Canon 6.
22 Id.
23 Cf. ABA Opinion 282 (1950).
"When counsel, although paid by the casualty company,
undertakes to represent the policyholder and files his no-
tice of appearance, he owes to his client, the assured, an
undeviating and single allegiance. His fealty embraces the
requirement to produce in court all witnesses, fact and
expert, who are available and necessary for the proper
protection of the rights of his client. . . .
" .  . . The Canons of Professional Ethics make it
pellucid that there are not two standards, one applying
to counsel privately retained by a client, and the other
to counsel paid by an insurance carrier." American Em-
ployers Ins. Co. v. Goble Aircraft Specialties, 205 Misc.
1066, 1075, 131 N.Y.S.2d 393, 401 (1954), motion to with-
draw appeal granted, 1 App.Div.2d 1008, 154 N.Y.S.2d
835 (1956).
"[C]ounsel, selected by State Farm to defend Dorothy
Walker's suit for $50,000 damages, was apprised by Walker
that his earlier version of the accident was untrue and
that actually the accident occurred because he lost con-
trol of his car in passing a Cadillac just ahead. At that
point, Walker's counsel should have refused to participate
further in view of the conflict of interest between Walker
and State Farm. . . . Instead he participated in the
ensuing deposition of the Walkers, even took an ex parte
sworn statement from Mr. Walker in order to advise
State Farm what action it should take, and later used the
statement against Walker in the District Court. This ac-
tion appears to contravene an Indiana attorney's duty `at
every peril to himself, to preserve the secrets of his client'
. . .." State Farm Mut. Auto Ins. Co. v. Walker, 382
F.2d 548, 552 (1967), cert. denied, 389 U.S. 1045, 19 L.Ed.
2d 837, 88 S.Ct. 789 (1968).
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by the personal desires of any person or organiza-
tion. Occasionally a lawyer for an entity is re-
quested by a stockholder, director, officer, em-
ployee, representative, or other person connected
with the entity to represent him in an individual
capacity; in such case the lawyer may serve the
individual only if the lawyer is convinced that dif-
fering interests are not present.
EC 5-19 A lawyer may represent several clients
whose interests are not actually or potentially dif-
fering. Nevertheless, he should explain any cir-
cumstances that might cause a client to question
his undivided loyalty.24 Regardless of the belief
of a lawyer that he may properly represent mul-
tiple clients, he must defer to a client who holds
the contrary belief and withdraw from representa-
tion of that client.
EC 5-20 A lawyer is often asked to serve as an
impartial arbitrator or mediator in matters which
involve present or former clients. He may serve
in either capacity if he first discloses such present
or former relationships. After a lawyer has un-
dertaken to act as an impartial arbitrator or medi-
ator, he should not thereafter represent in the
dispute any of the parties involved.
Desires of Third Persons
EC 5-21 The obligation of a lawyer to exercise
professional judgment solely on behalf of his client
requires that he disregard the desires of others
that might impair his free judgment. 25 The de-
sires of a third person will seldom adversely af-
fect a lawyer unless that person is in a position
to exert strong economic, political, or social pres-
sures upon the lawyer. These influences are often
subtle, and a lawyer must be alert to their exist-
ence. A lawyer subjected to outside pressures
should make full disclosure of them to his client; 26
and if he or his client believes that the effective-
ness of his representation has been or will be im-
paired thereby, the lawyer should take proper
steps to withdraw from representation of his
client.
EC 5-22 Economic, political, or social pressures
by third persons are less likely to impinge upon
the independent judgment of a lawyer in a matter
24 See ABA Canon 6.
2
3 See ABA Canon 35.
"Objection to the intervention of a lay intermediary,
who may control litigation or otherwise interfere with
the rendering of legal services in a confidential relation-
ship, . . . derives from the element of pecuniary gain.
Fearful of dangers thought to arise from that element,
the courts of several States have sustained regulations
aimed at these activities. We intimate no view one way or
the other as to the merits of those decisions with respect to
the particular arrangements against which they are di-
rected. It is enough that the superficial resemblance in
form between those arrangements and that at bar cannot
obscure the vital fact that here the entire arrangement em-
ploys constitutionally privileged means of expression to se-
cure constitutionally guaranteed civil rights." NAACP v.
Button, 371 U.S. 415, 441-42, 9 L.Ed.2d 405, 423-24, 83
S.Ct. 328, 342-43 (1963).
28 Cf. ABA Canon 38.
in which he is compensated directly by his client
and his professional work is exclusively with his
client. On the other hand, if a lawyer is compen-
sated from a source other than his client, he may
feel a sense of responsibility to someone other
than his client.
EC 5-23 A person or organization that pays or
furnishes lawyers to represent others possesses a
potential power to exert strong pressures against
the independent judgment of those lawyers. Some
employers may be interested in furthering their
own economic, political, or social goals without re-
gard to the professional responsibility of the law-
yer to his individual client. Others may be far
more concerned with establishment or extension
of legal principles than in the immediate protec-
tion of the rights of the lawyer's individual client.
On some occasions, decisions on priority of work
may be made by the employer rather than the
lawyer with the result that prosecution of work
already undertaken for clients is postponed to
their detriment. Similarly, an employer may seek,
consciously or unconsciously, to further its own
economic interests through the actions of the law-
yers employed by it. Since a lawyer must always
be free to exercise his professional judgment with-
out regard to the interests or motives of a third
person, the lawyer who is employed by one to rep-
resent another must constantly guard against ero-
sion of his professional freedom.27
EC 5-24 To assist a lawyer in preserving his pro-
fessional independence, a number of courses are
available to him. For example, a lawyer should
not practice with or in the form of a professional
legal corporation, even though the corporate form
is permitted by law, 28 if any director, officer, or
stockholder of it is a non-lawyer. Although a law-
yer may be employed by a business corporation
with non-lawyers serving as directors or officers,
and they necessarily have the right to make de-
cisions of business policy, a lawyer must decline
to accept direction of his professional judgment
from any layman. Various types of legal aid of-
27 "Certainly it is true that 'the professional relation-
ship between an attorney and his client is highly personal,
involving an intimate appreciation of each individual
client's particular problem.'  And this Committee does
not condone practices which interfere with that relation-
ship. However, the mere fact the lawyer is actually paid
by some entity other than the client does not affect that
relationship, so long as the lawyer is selected by and is
directly responsible to the client. See Informal Opinions
469 and 679. Of course, as the latter decision points out,
there must be full disclosure of the arrangement by the
attorney to the client. . . " ABA Opinion 320 (1968).
"[A] third party may pay the cost of legal services as
long as control remains in the client and the responsibility
of the lawyer is solely to the client. Informal Opinions 469
ad [sic] 679. See also Opinion 237." Id.
28 ABA Opinion 303 (1961) recognized that "[s]tatutory
provisions now exist in several states which are designed
to make [the practice of law in a form that will be classi-
fied as a corporation for federal income tax purposes] le-
gally possible, either as a result of lawyers incorporating
or forming associations with various corporate character-
istics."
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fices are administered by boards of directors com-
posed of lawyers and laymen. A lawyer should
not accept employment from such an organization
unless the board sets only broad policies and there
is no interference in the relationship of the law-
yer and the individual client he serves. Where a
lawyer is employed by an organization, a written
agreement that defines the relationship between
him and the organization and provides for his in-
dependence is desirable since it may serve to pre-
vent misunderstanding as to their respective roles.
Although other innovations in the means of sup-
plying legal counsel may develop, the responsibil-
ity of the lawyer to maintain his professional in-
dependence remains constant, and the legal pro-
fession must insure that changing circumstances
do not result in loss of the professional inde-
pendence of the lawyer.
DISCIPLINARY RULES
DR 5-101 Refusing Employment When the Inter-
ests of the Lawyer May Impair His In-
dependent Professional Judgment.
(A) Except with the consent of his client after
full disclosure, a lawyer shall not accept em-
ployment if the exercise of his professional
judgment on behalf of his client will be or
reasonably may be affected by his own fi-
nancial, business, property, or personal inter-
ests.29
(B) A lawyer shall not accept employment in con-
templated or pending litigation if he knows
or it is obvious that he or a lawyer in his firm
ought to be called as a witness, except that
he may undertake the employment and he or
a lawyer in his firm may testify:
(1) If the testimony will relate solely to an
uncontested matter.
(2) If the testimony will relate solely to a
matter of formality and there is no rea-
son to believe that substantial evidence
will be offered in opposition to the testi-
mony.
29 Cf. ABA Canon 6 and ABA Opinions 181 (1938), 104
(1934), 103 (1933), 72 (1932), 50 (1931), 49 (1931), and 33
(1931).
"New York County [Opinion] 203. . . . [A lawyer]
should not advise a client to employ an investment com-
pany in which he is interested, without informing him of
this." Drinker, LEGAL ETHICS 956 (1953).
"In Opinions 72 and 49 this Committee held : The rela-
tions of partners in a law firm are such that neither the
firm nor any member or associate thereof, may accept
any professional employment which any member of the
firm cannot properly accept.
"In Opinion 16 this Committee held that a member of a
law firm could not represent a defendant in a criminal
case which was being prosecuted by another member of
the firm who was public prosecuting attorney. The Opin-
ion stated that it was clearly unethical for one member
of the firm to oppose the interest of the state while an-
other member represented those interests . . .. Since
the prosecutor himself could not represent both the public
and the defendant, no member of his law firm could
either." ABA Opinion 296 (1959).
(3) If the testimony will relate solely to the
nature and value of legal services ren-
dered in the case by the lawyer or his
firm to the client.
(4) As to any matter, if refusal would work
a substantial hardship on the client be-
cause of the distinctive value of the law-
yer or his firm as counsel in the partic-
ular case.
DR 5-102 Withdrawal as Counsel When the Law-
yer Becomes a Witness.30
(A) If, after undertaking employment in contem-
plated or pending litigation, a lawyer learns
or it is obvious that he or a lawyer in his
firm ought to be called as a witness on behalf
of his client, he shall withdraw from the con-
duct of the trial and his firm, if any, shall not
continue representation in the trial, except
that he may continue the representation and
he or a lawyer in his firm may testify in the
circumstances enumerated in DR 5-101(B)
(1) through (4).
(B) If, after undertaking employment in contem-
plated or pending litigation, a lawyer learns
or it is obvious that he or a lawyer in his
firm may be called as a witness other than
on behalf of his client, he may continue the
representation until it is apparent that his
testimony is or may be prejudicial to his
client.31
DR 5-103 Avoiding Acquisition of Interest in Lit-
igation.
(A) A lawyer shall not acquire a proprietary in-
terest in the cause of action or subject matter
of litigation he is conducting for a client,32
except that he may:
(1) Acquire a lien granted by law to secure
his fee or expenses.
(2) Contract with a client for a reasonable
contingent fee in a civil case.33
(B) While representing a client in connection with
contemplated or pending litigation, a lawyer
shall not advance or guarantee financial as-
30 cf. ABA Canon 19 and ABA Opinions 220 (1941), 185
(1938), 50 (1931), and 33 (1931) ; but cf. Erwin M. Jen-
nings Co. v. DiGenova, 107 Conn. 491, 498-99, 141 A. 866,
868 (1928).
31 "This Canon [19] of Ethics needs no elaboration to
be applied to the facts here. Apparently, the object of
this precept is to avoid putting a lawyer in the obviously
embarrassing predicament of testifying and then having
to argue the credibility and effect of his own testimony.
It was not designed to permit a lawyer to call opposing
counsel as a witness and thereby disqualify him as coun-
sel." Galarowicz v. Ward, 119 Utah 611, 620, 230 P.2d
576, 580 (1951).
32 ABA Canon 10 and ABA Opinions 279 (1949), 246
(1942), and 176 (1938).
33 See Code of Professional Responsibility, DR 2-106(C).
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prevent prospective jurors from being impartial at
the outset of the trial 54 and may also interfere
with the obligation of jurors to base their verdict
solely upon the evidence admitted in the tria1.55
"Court proceedings are held for the solemn purpose of
endeavoring to ascertain the truth which is the sine qua
non of a fair trial. Over the centuries Anglo-American
courts have devised careful safeguards by rule and other-
wise to protect and facilitate the performance of this high
function. As a result, at this time those safeguards do
not permit the televising and photographing of a criminal
trial, save in two States and there only under restrictions.
The federal courts prohibit it by specific rule. This is
weighty evidence that our concepts of a fair trial do not
tolerate such an indulgence. We have always held that
the atmosphere essential to the preservation of a fair
trial—the most fundamental of all freedoms—must be
maintained at all costs." Estes v. State of Texas, 381 U.S.
532, 540, 14 L.Ed.2d 543, 549, 85 S.Ct. 1628, 1631-32 (1965),
rehearing denied, 382 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18
(1965).
54 "Pretrial can create a major problem for the defend-
ant in a criminal case. Indeed, it may be more harmful
than publicity during the trial for it may well set the com-
munity opinion as to guilt or innocence. . . . The
trial witnesses present at the hearing, as well as the
original jury panel, were undoubtedly made aware of the
peculiar public importance of the case by the press and
television coverage being provided, and by the fact that
they themselves were televised live and their pictures re-
broadcast on the evening show." Id., 381 U.S. at 536-37,
14 L.Ed.2d at 546-47, 85 S.Ct. at 1629-30.
55 "The undeviating rule of this Court was expressed by
Mr. Justice Holmes over half a century ago in Patterson
v. Colorado, 205 U.S. 454, 462 (1907) :
The theory of our system is that the conclusions to be
reached in a case will be induced only by evidence and
argument in open court, and not by any outside influ-
ence, whether of private talk or public print."
Sheppard v. Maxwell, 384 U.S. 333, 351, 16 L.Ed.2d 600,
614, 86 S.Ct. 1507, 1516 (1966).
"The trial judge has a large discretion in ruling on the
issue of prejudice resulting from the reading by jurors
of news articles concerning the trial. . . . Generaliza-
tions beyond that statement are not profitable, because
each case must turn on its special facts. We have here
the exposure of jurors to information of a character which
the trial judge ruled was so prejudicial it could not be
directly offered as evidence. The prejudice to the defend-
ant is almost certain to be as great when that evidence
reaches the jury through news accounts as when it is a part
of the prosecution's evidence. . . . It may indeed be
greater for it is then not tempered by protective pro-
cedures." Marshall v. United States, 360 U.S. 310, 312-13,
3 L.Ed.2d 1250, 1252, 79 S.Ct. 1171, 1173 (1959).
"The experienced trial lawyer knows that an adverse
public opinion is a tremendous disadvantage to the de-
fense of his client. Although grand jurors conduct their
deliberations in secret, they are selected from the body
of the public. They are likely to know what the general
public knows and to reflect the public attitude. Trials
are open to the public, and aroused public opinion respect-
ing the merits of a legal controversy creates a court room
atmosphere which, without any vocal expression in the
presence of the petit jury, makes itself felt and has its
effect upon the action of the petit jury. Our fundamental
concepts of justice and our American sense of fair play
require that the petit jury shall be composed of persons
with fair and impartial minds and without preconceived
views as to the merits of the controversy, and that it shall
determine the issues presented to it solely upon the evi-
dence adduced at the trial and according to the law given
in the instructions of the trial judge.
The release by a lawyer of out-of-court statements
regarding an anticipated or pending trial may im-
properly affect the impartiality of the tribunal.56
For these reasons, standards for permissible and
prohibited conduct of a lawyer with respect to trial
publicity have been established.
EC 7-34 The impartiality of a public servant in
our legal system may be impaired by the receipt
of gifts or loans. A lawyer, 57 therefore, is never
justified in making a gift or a loan to a judge,
a hearing officer, or an official or employee of a
tribunal.58
EC 7-35 All litigants and lawyers should have ac-
cess to tribunals on an equal basis. Generally, in
adversary proceedings a lawyer should not com-
municate with a judge relative to a matter pend-
ing before, or which is to be brought before, a
tribunal over which he presides in circumstances
which might have the effect or give the appear-
ance of granting undue advantage to one party.59
For example, a lawyer should not communicate
with a tribunal by a writing unless a copy thereof
is promptly delivered to opposing counsel or to
the adverse party if he is not represented by a
lawyer. Ordinarily an oral communication by a
lawyer with a judge or hearing officer should be
made only upon adequate notice to opposing coun-
sel, or, if there is none, to the opposing party. A.
lawyer should not condone or lend himself to pri-
vate importunities by another with a judge or
hearing officer on behalf of himself or his client.
EC 7-36 Judicial hearings ought to be conducted
through dignified and orderly procedures designed
to protect the rights of all parties. Although a
lawyer has the duty to represent his client zealous-
"While we may doubt that the effect of public opinion
would sway or bias the judgment of the trial judge in an
equity proceeding, the defendant should not be called upon
to run that risk and the trial court should not have his
work made more difficult by any dissemination of state-
ments to the public that would be calculated to create a
public demand for a particular judgment in a prospective
or pending case." ABA Opinion 199 (1940).
Cf. Estes v. State of Texas, 381 U.S. 532, 544-45, 14 L.
Ed.2d 543, 551, 85 S.Ct. 1628, 1634 (1965), rehearing denied,
381 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18 (1965).
56 See ABA Canon 20.57 Canon 3 observes that a lawyer "deserves rebuke and
denunciation for any device or attempt to gain from a
Judge special personal consideration or favor."
See ABA Canon 32.
58 "Judicial Canon 32 provides :
" 'A judge should not accept any presents or favors
from litigants, or from lawyers practicing before him or
from others whose interests are likely to be submitted to
him for judgment.'
"The language of this Canon is perhaps broad enough
to prohibit campaign contributions by lawyers, practicing
before the court upon which the candidate hopes to sit.
However, we do not think it was intended to prohibit
such contributions when the candidate is obligated, by
force of circumstances over which he has no control, to
conduct a campaign, the expense of which exceeds that
which he should reasonably be expected to personally
bear!" ABA Opinion 226 (1941).
59 See ABA Canons 3 and 32.
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CODE OF PROFESSIONAL RESPONSIBILITY
ly, he should not engage in any conduct that of-
fends the dignity and decorum of proceedings.60
While maintaining his independence, a lawyer
should be respectful, courteous, and above-board
in his relations with a judge or hearing officer be-
fore whom he appears.61  He should avoid undue
solicitude for the comfort or convenience of judge
or jury and should avoid any other conduct cal-
culated to gain special consideration.
EC 7-37 In adversary proceedings, clients are
litigants and though ill feeling may exist between
clients, such ill feeling should not influence a law-
yer in his conduct, attitude, and demeanor towards
opposing lawyers.62  A lawyer should not make
unfair or derogatory personal reference to op-
posing counsel. Haranguing and offensive tactics
by lawyers interfere with the orderly administra-
tion of justice and have no proper place in our
legal system.
EC 7-38 A lawyer should be courteous to op-
posing counsel and should accede to reasonable
requests regarding court proceedings, settings,
continuances, waiver of procedural formalities, and
similar matters which do not prejudice the rights
of his client.63  He should follow local customs
of courtesy or practice, unless he gives timely no-
tice to opposing counsel of his intention not to do
so.64  A lawyer should be punctual in fulfilling
all professional commitments.65
EC 7-39 In the final analysis, proper functioning
of the adversary system depends upon coopera-
tion between lawyers and tribunals in utilizing pro-
cedures which will preserve the impartiality of
tribunals and make their decisional processes
prompt and just, without impinging upon the ob-
ligation of lawyers to represent their clients zeal-
ously within the framework of the law.
DISCIPLINARY RULES
DR 7-101 Representing a Client Zealously.
(A) A lawyer shall not intentionally: 66
(1) Fail to seek the lawful objectives of his
client through reasonably available
means 67 permitted by law and the Dis-
ciplinary Rules, except as provided by
DR 7-101(B). A lawyer does not violate
this Disciplinary Rule, however, by ac-
ceding to reasonable requests of opposing
counsel which do not prejudice the rights
of his client, by being punctual in ful-
filling all professional commitments, by
avoiding offensive tactics, or by treating
60 Cf. ABA Canon 18.
61 See ABA Canons 1 and 3.
62 See ABA Canon 17.
63 See ABA Canon 24.
64 See ABA Canon 25.
05 See ABA Canon 21.
66 See ABA Canon 15.
67 See ABA Canons 5 and 15 cf. ABA Canons 4 and 32.
with courtesy and consideration all per-
sons involved in the legal process.
(2) Fail to carry out a contract of employ-
ment entered into with a client for pro-
fessional services, but he may withdraw
as permitted under DR 2-110, DR 5-102,
and DR 5-105.
(3) Prejudice or damage his client during the
course of the professional relationship 68
except as required under DR 7-102(B).
(B) In his representation of a client, a lawyer
may:
(1) Where permissible, exercise his profes-
sional judgment to waive or fail to as-
sert a right or position of his client.
(2) Refuse to aid or participate in conduct
that he believes to be unlawful, even
though there is some support for an ar-
gument that the conduct is legal.
DR 7-102 Representing a Client Within the
Bounds of the Law.
(A) In his representation of a client, a lawyer
shall not:
(1) File a suit, assert a position, conduct a
defense, delay a trial, or take other ac-
tion on behalf of his client when he knows
or when it is obvious that such action
would serve merely to harass or ma-
liciously injure another.69
(2) Knowingly advance a claim or defense
that is unwarranted under existing law,
except that he may advance such claim
or defense if it can be supported by good
faith argument for an extension, modifi-
cation, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that
which he is required by law to reveal.
(4) Knowingly use perjured testimony or
false evidence.70
(5) Knowingly make a false statement of law
or fact.
(6) Participate in the creation or preservation
of evidence when he knows or it is ob-
vious that the evidence is false.
(7) Counsel or assist his client in conduct
that the lawyer knows to be illegal or
fraudulent.
(8) Knowingly engage in other illegal con-
duct or conduct contrary to a Disciplin-
ary Rule.
(B) A lawyer who receives information clearly
establishing that:
(1) His client has, in the course of the rep-
resentation, perpetrated a fraud upon a
person or tribunal shall promptly call
68 Cf. ABA Canon 24.
69 sel ABA Canon 30.
70 Cf. ABA Canons 22 and 29.
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CODE OF PROFESSIONAL RESPONSIBILITY
upon his client to rectify the same, and
if his client refuses or is unable to do so,
he shall reveal the fraud to the affected
person or tribunal:a
(2) A person other than his client has per-
petrated a fraud upon a tribunal shall
promptly reveal the fraud to the tribu-
nal 12
DR 7-103 Performing the Duty of Public Pros-
ecutor or Other Government Law-
yer.73
(A) A public prosecutor or other government law-
yer shall not institute or cause to be insti-
tuted criminal charges when he knows or it
is obvious that the charges are not supported
by probable cause.
(B) A public prosecutor or other government law-
yer in criminal litigation shall make timely
disclosure to counsel for the defendant, or
to the defendant if he has no counsel, of the
existence of evidence, known to the prosecu-
tor or other government lawyer, that tends
to negate the guilt of the accused, mitigate
the degree of the offense, or reduce the pun-
ishment.
DR 7-104 Communicating With One of Adverse
Interest.74
(A) During the course of his representation of a
client a lawyer shall not:
(1) Communicate or cause another to com-
municate on the subject of the representa-
tion with a party he knows to be rep-
resented by a lawyer in that matter un-
less he has the prior consent of the law-
yer representing such other party 75 or is
authorized by law to do so.
(2) Give advice to a person who is not rep-
resented by a lawyer, other than the ad-
71 See ABA Canon 41; cf. Hinds v. State Bar, 19 Ca1.2d
87, 92-93, 119 P.2d 134, 137 (1941) ; but see ABA Opinion
287 (1953) and Texas Canon 38. Also see Code of Pro-
fessional Responsibility, DR 4-101(C) (2).
72 See Precision Inst. Mfg. Co. v. Automotive M. M. Co.,
324 U.S. 806, 89 L.Ed. 1381, 65 S.Ct. 993 (1945).
73 Cf. ABA Canon 5.
74 "Rule 12. . . . A member of the State Bar shall
not communicate with a party represented by counsel up-
on a subject of controversy, in the absence and without
the consent of such counsel. This rule shall not apply
to communications with a public officer, board, committee
or body." Cal.Business and Professions Code § 6076 (West
1962).
75 See ABA Canon 9; cf. ABA Opinions 124 (1934), 108
(1934), 95 (1933), and 75 (1932) ; also see In re Schwabe,
242 Or. 169, 174-75, 408 P.2d 922, 924 (1965).
"It is clear from the earlier opinions of this committee
that Canon 9 is to be construed literally and does not al-
low a communication with an opposing party, without the
consent of his counsel, though the purpose merely be to
investigate the facts. Opinions 117, 95, 66," ABA Opinion
187 (1938).
vice to secure counsel,76 if the interests
of such person are or have a reasonable
possibility of being in conflict with the
interests of his client.77
DR 7-105 Threatening Criminal Prosecution.
(A) A lawyer shall not present, participate in pre-
senting, or theaten to present criminal charg-
es solely to obtain an advantage in a civil
matter.
DR 7-106 Trial Conduct.
(A) A lawyer shall not disregard or advise his
client to disregard a standing rule of a tribu-
nal or a ruling of a tribunal made in the
course of a proceeding, but he may take ap-
propriate steps in good faith to test the valid-
ity of such rule or ruling.
(B) In presenting a matter to a tribunal, a law-
yer shall disclose: 78
(1) Legal authority in the controlling juris-
diction known to him to be directly ad-
verse to the position of his client and
which is not disclosed by opposing cotm-
se1.79
(2) Unless privileged or irrelevant, the iden-
tities of the clients he represents and of
the persons who employed him 80
76 Cf. ABA Opinion 102 (1933).
77 Cf. ABA Canon 9 and ABA Opinion 58 (1931).
78 Cf. Note, 38 Texas L.Rev. 107, 108-09 (1959).
79 "In the brief summary in the 1947 edition of the Com-
mittee's decisions (p. 17), Opinion 146 was thus sum-
marized : Opinion 146—A lawyer should disclose to the
court a decision directly adverse to his client's case that is
unknown to his adversary.
"We would not confine the Opinion to 'controlling au-
thorities'—i.e., those decisive of the pending case—but, in
accordance with the tests hereafter suggested, would apply
it to a decision directly adverse to any proposition of law
on which the lawyer expressly relies, which would rea-
sonably be considered important by the judge sitting on
the case.
". . . The test in every case should be: Is the deci-
sion which opposing counsel has overlooked one which the
court should clearly consider in deciding the case? Would
a reasonable judge properly feel that a lawyer who ad-
vanced, as the law, a proposition adverse to the undis-
closed decision, was lacking in candor and fairness to him?
Might the judge consider himself misled by an implied
representation that the lawyer knew of no adverse au-
thority?" ABA Opinion 280 (1949).
S0 "The authorities are substantially uniform against any
privilege as applied to the fact of retainer or identity of
the client. The privilege is limited to confidential com-
munications, and a retainer is not a confidential communi-
cation, although it cannot come into existence without
some communication between the attorney and the—at
that stage prospective—client." United States v. Pape, 144
F.2d 778, 782 (2d Cir. 1944), cert. denied, 323 U.S. 752, 89
L.Ed.2d 602, 65 S.Ct. 86 (1944).
"To be sure, there may be circumstances under which
the identification of a client may amount to the prejudicial
disclosure of a confidential communication, as where the
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(C) In appearing in his professional capacity be-
fore a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has
no reasonable basis to believe is relevant
to the case or that will not be supported
by admissible evidence.81
(2) Ask any question that he has no reason-
able basis to believe is relevant to the
case and that is intended to degrade a
witness or other person.82
(3) Assert his personal knowledge of the
facts in issue, except when testifying as
a witness.
(4) Assert his personal opinion as to the just-
ness of a cause, as to the credibility of a
witness, as to the culpability of a civil
litigant, or as to the guilt or innocence
of an accused; 83 but he may argue, on
his analysis of the evidence, for any posi-
tion or conclusion with respect to the
matters stated herein.
(5) Fail to comply with known local cus-
toms of courtesy or practice of the bar
or a particular tribunal without giving to
opposing counsel timely notice of his in-
tent not to comply.84
substance of a disclosure has already been revealed but
not its source." Colton v. United States, 306 F.2d 633, 637
(2d Cir. 1962).
81 See ABA Canon 22; cf. ABA Canon 17.
"The rule allowing counsel when addressing the jury the
widest latitude in discussing the evidence and presenting
the client's theories falls far short of authorizing the state-
ment by counsel of matter not in evidence, or indulging
in argument founded on no proof, or demanding verdicts
for purposes other than the just settlement of the matters
at issue between the litigants, or appealing to prejudice or
passion. The rule confining counsel to legitimate argu-
ment is not based on etiquette, but on justice. Its viola-
tion is not merely an overstepping of the bounds of pro-
priety, but a violation of a party's rights. The jurors
must determine the issues upon the evidence. Counsel's
address should help them do this, not tend to lead them
astray." Cherry Creek Nat. Bank v. Fidelity & Cas. Co.,
207 App.Div. 787, 790-91, 202 N.Y.S. 611, 614 (1924).
82 Cf. ABA Canon 18.
"§ 6068. • . . It is the duty of an attorney :
"(f) To abstain from all offensive personality, and to
advance no fact prejudicial to the honor or reputation of
a party or witness, unless required by the justice of the
cause with which he is charged." Cal.Business and Pro-
fessions Code § 6068 (West 1962).
83 "The record in the case at bar was silent concerning
the qualities and character of the deceased. It is especially
improper, in addressing the jury in a murder case, for
the prosecuting attorney to make reference to his knowl-
edge of the good qualities of the deceased where there
is no evidence in the record bearing upon his character.
. . . A prosecutor should never inject into his argu-
ment evidence not introduced at the trial." People v.
Dukes, 12 I11.2d 334, 341, 146 N.E.2d 14, 17-18 (1957).
84 "A lawyer should not ignore known customs or prac-
tice of the Bar or of a particular Court, even when the
law permits, without giving timely notice to the opposing
counsel." ABA Canon 25.
(6) Engage in undignified or discourteous
conduct which is degrading to a tribunal.
(7) Intentionally or habitually violate any es-
tablished rule of procedure or of evi-
dence.
DR 7-107 Trial Publicity.85
(A) A lawyer participating in or associated with
the investigation of a criminal matter shall
not make or participate in making an extra-
judicial statement that a reasonable person
would expect to be disseminated by means
of public communication and that does more
than state without elaboration:
(1) Information contained in a public record.
(2) That the investigation is in progress.
(3) The general scope of the investigation in-
cluding a description of the offense and,
if permitted by law, the identity of the
victim.
(4) A request for assistance in apprehending
a suspect or assistance in other matters
and the information necessary thereto.
(5) A warning to the public of any dangers.
(B) A lawyer or law firm associated with the
prosecution or defense of a criminal matter
shall not, from the time of the filing of a com-
plaint, information, or indictment, the issu-
ance of an arrest warrant, or arrest until
the commencement of the trial or disposition
85 The provisions of Sections (A), (B), (C), and (D) of
this Disciplinary Rule incorporate the fair trial-free press
standards which apply to lawyers as adopted by the ABA.
House of Delegates, Feb. 19, 1968, upon the recommenda-
tion of the Fair Trial and Free Press Advisory Committee
of the ABA Special Committee on Minimum Standards for
the Administration of Criminal Justice.
Cf. ABA Canon 20; see generally ABA Advisory Com-
mittee on Fair Trial and Free Press, Standards Relating
to Fair Trial and Free Press (1966).
"From the cases coming here we note that unfair and
prejudicial news comment on pending trials has become in-
creasingly prevalent. Due process requires that the ac-
cused receive a trial by an impartial jury free from out-
side influences. Given the pervasiveness of modern com-
munications and the difficulty of effacing prejudicial pub-
licity from the minds of the jurors, the trial courts must
take strong measures to ensure that the balance is never
weighed against the accused. And appellate tribunals
have the duty to make an independent evaluation of the
circumstances. Of course, there is nothing that prescribes
the press from reporting events that transpire in the court-
room. But where there is a reasonable likelihood that
prejudicial news prior to trial will prevent a fair trial, the
judge should continue the case until the threat abates, or
transfer it to another county not so permeated with pub-
licity.  . . . The courts must take such steps by rule
and regulation that will protect their processes from preju-
dicial outside interferences. Neither prosecutors, counsel
for defense, the accused, witnesses, court staff nor enforce-
ment officers coming under the jurisdiction of the court
should be permitted to frustrate its function. Collabora-
tion between counsel and the press as to information affect-
ing the fairness of a criminal trial is not only subject to
regulation, but is highly censurable and worthy of dis-
ciplinary measures." Sheppard v. Maxwell, 384 U.S. 333,
362-63, 16 L.Ed.2d 600, 620, 86 S.Ct. 1507, 1522 (1966).
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CODE OF PROFESSIONAL RESPONSIBILITY
without trial, make or participate in making
an extrajudicial statement that a reasonable
person would expect to be disseminated by
means of public communication and that re-
lates to:
(1) The character, reputation, or prior crim-
inal record (including arrests, indict-
ments, or other charges of crime) of the
accused.
(2) The possibility of a plea of guilty to the
offense charged or to a lesser offense.
(3) The existence or contents of any confes-
sion, admission, or statement given by
the accused or his refusal or failure to
make a statement.
(4) The performance or results of any ex-
aminations or tests or the refusal or fail-
ure of the accused to submit to examina-
tions or tests.
(5) The identity, testimony, or credibility of
a prospective witness.
(6) Any opinion as to the guilt or innocence
of the accused, the evidence, or the mer-
its of the case.
(C) DR 7-107(B) does not preclude a lawyer dur-
ing such period from announcing:
(1) The name, age, residence, occupation, and
family status of the accused.
(2) If the accused has not been apprehended,
any information necessary to aid in his
apprehension or to warn the public of
any dangers he may present.
(3) A request for assistance in obtaining evi-
dence.
(4) The identity of the victim of the crime.
(5) The fact, time, and place of arrest, re-
sistance, pursuit, and use of weapons.
(6) The identity of investigating and arrest-
ing officers or agencies and the length
of the investigation.
(7) At the time of seizure, a description of
the physical evidence seized, other than
a confession, admission, or statement.
(8) The nature, substance, or text of the
charge.
(9) Quotations from or references to public
records of the court in the case.
(10) The scheduling or result of any step in
the judicial proceedings.
(11) That the accused denies the charges made
against him.
(D) During the selection of a jury or the trial of
a criminal matter, a lawyer or law firm asso-
ciated with the prosecution or defense of a
criminal matter shall not make or participate
in making an extrajudicial statement that a
reasonable person would expect to be dissemi-
nated by means of public communication and
that relates to the trial, parties, or issues in
the trial or other matters that are reasonably
likely to interfere with a fair trial, except that
he may quote from or refer without comment
to public records of the court in the case.
(E) After the completion of a trial or disposition
without trial of a criminal matter and prior
to the imposition of sentence, a lawyer or law
firm associated with the prosecution or de-
fense shall not make or participate in making
an extrajudicial statement that a reasonable
person would expect to be disseminated by
public communication and that is reasonably
likely to affect the imposition of sentence.
(F) The foregoing provisions of DR 7-107 also ap-
ply to professional disciplinary proceedings
and juvenile disciplinary proceedings when
pertinent and consistent with other law appli-
cable to such proceedings.
(G) A lawyer or law firm associated with a civil
action shall not during its investigation or liti-
gation make or participate in making an ex-
trajudicial statement, other than a quotation
from or reference to public records, that a
reasonable person would expect to be dissemi-
nated by means of public communication and
that relates to:
(1) Evidence regarding the occurrence or
transaction involved.
(2) The character, credibility, or criminal
record of a party, witness, or prospec-
tive witness.
(3) The performance or results of any ex-
aminations or tests or the refusal or
failure of a party to submit to such.
(4) His opinion as to the merits of the
claims or defenses of a party, except as
required by law or administrative rule.
(5) Any other matter reasonably likely to
interfere with a fair trial of the action.
(H) During the pendency of an administrative
proceeding, a lawyer or law firm associated
therewith shall not make or participate in
making a statement, other than a quotation
from or reference to public records, that a
reasonable person would expect to be dissemi-
nated by means of public communication if
it is made outside the official course of the
proceeding and relates to:
(1) Evidence regarding the occurrence or
transaction involved.
(2) The character, credibility, or criminal
record of a party, witness, or prospec-
tive witness.
(3) Physical evidence or the performance
or results of any examinations or tests
or the refusal or failure of a party to
submit to such.
(4) His opinion as to the merits of the
claims, defenses, or positions of an in-
terested person.
(5) Any other matter reasonably likely to
interfere with a fair hearing.
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(I) The foregoing provisions of DR 7-107 do not
preclude a lawyer from replying to charges
of misconduct publicly made against him or
from participating in the proceedings of legis-
lative, administrative, or other investigative
bodies,
(J) A lawyer shall exercise reasonable care to pre-
vent his employees and associates from mak-
ing an extrajudicial statement that he would
be prohibited from making under DR 7-107.
DR 7-108 Communication with or Investigation
of Jurors.
(A) Before the trial of a case a lawyer connected
therewith shall not communicate with or
cause another to communicate with anyone
he knows to be a member of the venire from
which the jury will be selected for the trial
of the case.
(B) During the trial of a case:
(1) A lawyer connected therewith shall not
communicate with or cause another to
communicate with any member of the
jury.86
(2) A lawyer who is not connected there-
with shall not communicate with or
cause another to communicate with a
juror concerning the case.
(C) DR 7-108(A) and (B) do not prohibit a law-
yer from communicating with veniremen or
jurors in the course of official proceedings.
(D) After discharge of the jury from further con-
sideration of a case with which the lawyer
was connected, the lawyer shall not ask ques-
tions of or make comments to a member of
that jury that are calculated merely to harass
or embarrass the juror or to influence his ac-
tions in future jury service.87
(E) A lawyer shall not conduct or cause, by finan-
cial support or otherwise, another to conduct
a vexatious or harassing investigation of ei-
ther a venireman or a juror.
(F) All restrictions imposed by DR 7-108 upon a
lawyer also apply to communications with or
investigations of members of a family of a
venireman or a juror.
(G) A lawyer shall reveal promptly to the court
improper conduct by a venireman or a juror,
or by another toward a venireman or a juror
or a member of his family, of which the law-
yer has knowledge.
(B) A lawyer shall not advise or cause a person to
secrete himself or to leave the jurisdiction of
a tribunal for the purpose of making him un-
available as a witness therein.89
(C) A lawyer shall not pay, offer to pay, or ac-
quiesce in the payment of compensation to a
witness contingent upon the content of his
testimony or the outcome of the case. 90 But
a lawyer may advance, guarantee, or ac-
quiesce in the payment of:
(1) Expenses reasonably incurred by a wit-
ness in attending or testifying.
(2) Reasonable compensation to a witness
for his loss of time in attending or tes-
tifying.
(3) A reasonable fee for the professional
services of an expert witness.
DR 7-110 Contact with Officials.91
(A) A lawyer shall not give or lend any thing of
value to a judge, official, or employee of a
tribunal.
(B) In an adversary proceeding, a lawyer shall
not communicate, or cause another to com-
municate, as to the merits of the cause with
a judge or an official before whom the pro-
ceeding is pending, except:
(1) In the course of official proceedings in
the cause.
(2) In writing if he promptly delvers a
copy of the writing to opposing counsel
or to the adverse party if he is not rep-
resented by a lawyer.
(3) Orally upon adequate notice to oppos-
ing counsel or to the adverse party if
he is not represented by a lawyer.
(4) As otherwise authorized by law.92
89 Cf. ABA Canon 5.
"Rule 15. . . . A member of the State Bar shall not
advise a person, whose testimony could establish or tend
to establish a material fact, to avoid service of process,
or secrete himself, or otherwise to make his testimony un-
available." Cal.Business and Professions Code § 6076 (West
1962).
9° See In re O'Keefe, 49 Mont. 369, 142 P. 638 (1914).
91 Cf. ABA Canon 3.
92 "Rule 16. . . . A member of the State Bar shall
not, in the absence of opposing counsel, communicate with
or argue to a judge or judicial officer except in open court
upon the merits of a contested matter pending before such
judge or judicial officer ; nor shall he, without furnishing
opposing counsel with a copy thereof, address a written
communication to a judge or judicial officer concerning
en- the merits of a contested matter pending before such judge
his or judicial officer. This rule shall not apply to ex parte
matters." Cal.Business and Professions Code § 6076 (West
1962).
se. See ABA Canon 23.
87 "Mt would be unethical for a lawyer to harass,
tice, induce or exert influence on a juror to obtain
testimony." ABA Opinion 319 (1968).
88 See ABA Canon 5.
DR 7-109 Contact with Witnesses.
(A) A lawyer shall not suppress any evidence that
he or his client has a legal obligation to re-
veal or produce.88
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CANON 8
A Lawyer Should Assist in Improving
the Legal System
ETHICAL CONSIDERATIONS
EC 8-1 Changes in human affairs and imperfec-
tions in human institutions make necessary con-
stant efforts to maintain and improve our legal
system.' This system should function in a man-
ner that commands public respect and fosters the
use of legal remedies to achieve redress of griev-
ances. By reason of education and experience,
lawyers are especially qualified to recognize de-
ficiencies in the legal system and to initiate cor-
rective measures therein. Thus they should par-
ticipate in proposing and supporting legislation
and programs to improve the system, 2 without
regard to the general interests or desires of clients
or former clients.3
EC 8-2 Rules of law are deficient if they are not
just, understandable, and responsive to the needs
of society. If a lawyer believes that the existence
or absence of a rule of law, substantive or proce-
dural, causes or contributes to an unjust result,
he should endeavor by lawful means to obtain ap-
propriate changes in the law. He should encour-
age the simplification of laws and the repeal or
amendment of laws that are outmoded. 4 Like-
1 . [Another] task of the great lawyer is to do
his part individually and as a member of the organized
bar to improve his profession, the courts, and the law.
As President Theodore Roosevelt aptly put it, 'Every man
owes some of his time to the upbuilding of the profession
to which he belongs.' Indeed, this obligation is one of
the great things which distinguishes a profession from a
business. The soundness and the necessity of President
Roosevelt's admonition insofar as it relates to the legal
profession cannot be doubted. The advances in natural
science and technology are so startling and the velocity of
change in business and in social life is so great that the
law along with the other social sciences, and even human
life itself, is in grave danger of being extinguished by new
gods of its own invention if it does not awake from its
lethargy. Vanderbilt, The Five Functions of the Lawyer:
Service to Clients and the Public, 40 A.B.A.J. 31, 31-32
(1954).
2 See ABA Canon 29; Cf. Cheatham, The Lawyer's Role
and Surroundings, 25 Rocky Mt.L.Rev. 405, 406-07 (1953).
"The lawyer tempted by repose should recall the heavy
costs paid by his profession when needed legal reform has
to be accomplished through the initiative of public-spirited
laymen. Where change must be thrust from without upon
an unwilling Bar, the public's least flattering picture of
the lawyer seems confirmed. The lawyer concerned for
the standing of his profession will, therefore, interest him-
self actively in the improvement of the law. In doing so
he will not only help to maintain confidence in the Bar,
but will have the satisfaction of meeting a responsibility
inhering in the nature of his calling." Professional Re-
sponsibility: Report of the Joint Conference, 44 A.B.A.J.
1159, 1217 (1958).
3 See Stayton, Cum Honore Off icium, 19 Tex.B.J. 765,
766 (1956) ; Professional Responsibility: Report of the
Joint Conference, 44 A.B.A.J. 1159, 1162 (1958) ; and Paul,
The Lawyer as a Tax Adviser, 25 Rocky Mt.L.Rev. 412,
433-34 (1953).
4 "There are few great figures in the history of the Bar
who have not concerned themselves with the reform and
wise, legal procedures should be improved when-
ever experience indicates a change is needed.
EC 8-3 The fair administration of justice re-
quires the availability of competent lawyers.
Members of the public should be educated to rec-
ognize the existence of legal problems and the re-
sultant need for legal services, and should be pro-
vided methods for intelligent selection of counsel.
Those persons unable to pay for legal services
should be provided needed services. Clients and
lawyers should not be penalized by undue geo-
graphical restraints upon representation in legal
matters, and the bar should address itself to im-
provements in licensing, reciprocity, and admission
procedures consistent with the needs of modern
commerce.
EC 8-4 Whenever a lawyer seeks legislative or
administrative changes, he should identify the ca-
pacity in which he appears, whether on behalf of
himself, a client, or the public. 5 A lawyer may
advocate such changes on behalf of a client even
though he does not agree with them. But when
a lawyer purports to act on behalf of the public,
he should espouse only those changes which he
conscientiously believes to be in the public inter-
est.
EC 8-5 Fraudulent, deceptive, or otherwise ille-
gal conduct by a participant in a proceeding be-
fore a tribunal or legislative body is inconsistent
with fair administration of justice, and it should
never be participated in or condoned by lawyers.
Unless constrained by his obligation to preserve
the confidences and secrets of his client, a lawyer
should reveal to appropriate authorities any
knowledge he may have of such improper conduct.
EC 8-6 Judges and administrative officials hav-
ing adjudicatory powers ought to be persons of
integrity, competence, and suitable temperament.
Generally, lawyers are qualified, by personal ob-
servation or investigation, to evaluate the qualifi-
cations of persons seeking or being considered for
such public offices, and for this reason they have
a special responsibility to aid in the selection of
only those who are qualified. 6 It is the duty of
improvement of the law. The special obligation of the
profession with respect to legal reform rests on considera-
tions too obvious to require enumeration. Certainly it is
the lawyer who has both the best chance to know when
the law is working badly and the special competence to
put it in order." Professional Responsibility: Report of
the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958).
5 "Rule 14. . . . A member of the State Bar shall
not communicate with, or appear before, a public officer,
board, committee or body, in his professional capacity,
without first disclosing that he is an attorney representing
interests that may be affected by action of such officer,
board, committee or body." Cal.Business and Professions
Code § 6076 (West 1962).
6 See ABA Canon 2.
"Lawyers are better able than laymen to appraise ac-
curately the qualifications of candidates for judicial of-
fice. It is proper that they should make that appraisal
known to the voters in a proper and dignified manner. A
lawyer may with propriety endorse a candidate for judicial
office and seek like endorsement from other lawyers. But
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lawyers to endeavor to prevent political consider-
ations from outweighing judicial fitness in the
selection of judges. Lawyers should protest ear-
nestly against the appointment or election of those
who are unsuited for the bench and should strive
to have elected 7 or appointed thereto only those
who are willing to forego pursuits, whether of a
business, political, or other nature, that may inter-
fere with the free and fair consideration of ques-
tions presented for adjudication. Adjudicatory of-
ficials, not being wholly free to defend themselves,
are entitled to receive the support of the bar
against unjust criticism.8 While a lawyer as a
citizen has a right to criticize such officials public-
ly,9
 he should be certain of the merit of his com-
plaint, use appropriate language, and avoid petty
criticisms, for unrestrained and intemperate state-
ments tend to lessen public confidence in our legal
system.19 Criticisms motivated by reasons other
than a desire to improve the legal system are not
justified.
EC 8-7 Since lawyers are a vital part of the legal
system, they should be persons of integrity, of
professional skill, and of dedication to the im-
the lawyer who endorses a judicial candidate or seeks
that endorsement from other lawyers should be actuated
by a sincere belief in the superior qualifications of the
candidate for judicial service and not by personal or sel-
fish motives; and a lawyer should not use or attempt to
use the power or prestige of the judicial office to secure
such endorsement. On the other hand, the lawyer whose
endorsement is sought, if he believes the candidate lacks
the essential qualifications for the office or believes the
opposing candidate is better qualified, should have the
courage and moral stamina to refuse the request for en-
dorsement." ABA Opinion 189 (1938).
7 "[W]e  are of the opinion that, whenever a candidate
for judicial office merits the endorsement and support of
lawyers, the lawyers may make financial contributions
toward the campaign if its cost, when reasonably conduct-
ed, exceeds that which the candidate would be expected
to bear personally." ABA Opinion 226 (1941).
8 See ABA Canon 1.
9 "Citizens have a right under our constitutional system
to criticize governmental officials and agencies. Courts
are not, and should not be, immune to such criticism."
Konigsberg v. State 'Bar of California, 353 U.S. 252, 269
(1957).
10 "[E]very lawyer, worthy of respect, realizes that pub-
lic confidence in our courts is the cornerstone of our gov-
ernmental structure, and will refrain from unjustified at-. tack on the character of the judges, while recognizing the
duty to denounce and expose a corrupt or dishonest judge."
Kentucky State Bar Ass'n v. Lewis, 282 S.W.2d 321, 326
(Ky. 1955).
"We should be the last to deny that Mr. Meeker has the
right to uphold the honor of the profession and to expose
without fear or favor corrupt or dishonest conduct in the
profession, whether the conduct be that of a judge or not.
. . . However, this Canon [29] does not permit one
to make charges which are false and untrue and unfounded
in fact. When one's fancy leads him to make false charges,
attacking the character and integrity of others, he does
so at his peril. He should not do so without adequate
proof of his charges and he is certainly not authorized to
make careless, untruthful and vile charges against his
professional brethren." In re Meeker, 76 N.M. 354, 364-
65, 414 P.2d 862, 869 (1966), appeal dismissed, 385 U.S. 449,
17 L.Ed.2d 510, 87 S.Ct. 613 (1967).
provement of the system. Thus a lawyer should
aid in establishing, as well as enforcing, stand-
ards of conduct adequate to protect the public by
insuring that those who practice law are qualified
to do so.
EC 8-8 Lawyers often serve as legislators or as
holders of other public offices. This is highly de-
sirable, as lawyers are uniquely qualified to make
significant contributions to the improvement of
the legal system. A lawyer who is a public offi-
cer, whether full or part-time, should not engage
in activities in which his personal or professional
interests are or foreseeably may be in conflict with
his official duties.1'
EC 8-9 The advancement of our legal system is
of vital importance in maintaining the rule of law
and in facilitating orderly changes; therefore, law-
yers should encourage, and should aid in making,
needed changes and improvements.
DISCIPLINARY RULES
DR 8-101 Action as a Public Official.
(A) A lawyer who holds public office shall not:
(1) Use his public position to obtain, or at-
tempt to obtain, a special advantage in
legislative matters for himself or for
a client under circumstances where he
knows or it is obvious that such action
is not in the public interest.
(2) Use his public position to influence, or
attempt to influence, a tribunal to act
in favor of himself or of a client.
11 "Opinions 16, 30, 34, 77, 118 and 134 relate to Canon 6,
and pass on questions concerning the propriety of the con-
duct of an attorney who is a public officer, in represent-
ing private interests adverse to those of the public body
which he represents. The principle applied in those opin-
ions is that an attorney holding public office should avoid
all conduct which might lead the layman to conclude that
the attorney is utilizing his public position to further
his professional success or personal interests." ABA Opin-
ion 192 (1939).
"The next question is whether a lawyer-member of a
legislative body may appear as counsel or co-counsel at
hearings before a zoning board of appeals, or similar
tribunal, created by the legislative group of which he is
a member. We are of the opinion that he may practice
before fact-finding officers, hearing bodies and commis-
sioners, since under our views he may appear as counsel
in the courts where his municipality is a party. Decisions
made at such hearings are usually subject to administra-
tive review by the courts upon the record there made. It
would be inconsistent to say that a lawyer-member of a
legislative body could not participate in a hearing at which
the record is made, but could appear thereafter when the
cause is heard by the courts on administrative review. This
is subject to an important exception. He should not ap-
pear as counsel where the matter is subject to review by
the legislative body of which he is a member. . . . We
are of the opinion that where a lawyer does so appear
there would be conflict of interests between his duty as an
advocate for his client on the one hand and the obligation
to his governmental unit on the other." In re Becker, 16
Il1.2d 488, 494-95, 158 N.E.2d 753, 756-57 (1959).
Cf. ABA Opinions 186 (1938), 136 (1935), 118 (1934), and
77 (1932).
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(3) Accept any thing of value from any
person when the lawyer knows or it is
obvious that the offer is for the pur-
pose of influencing his action as a pub-
lic official.
DR 8-102 Statements Concerning Judges and
Other Adjudicatory Officers.12
(A) A lawyer shall not knowingly make false
statements of fact concerning the qualifica-
tions of a candidate for election or appoint-
ment to a judicial office.
(B) A lawyer shall not knowingly make false ac-
cusations against a judge or other adjudica-
tory officer.
CANON 9
A Lawyer Should Avoid Even the
Appearance of Professional
Impropriety
ETHICAL CONSIDERATIONS
EC 9-1 Continuation of the American concept
that we are to be governed by rules of law re-
quires that the people have faith that justice can
be obtained through our legal system.' A lawyer
should promote public confidence in our system
and in the legal profession.2
EC 9-2 Public confidence in law and lawyers
may be eroded by irresponsible or improper con-
duct of a lawyer. On occasion, ethical conduct of
a lawyer may appear to laymen to be unethical.
In order to avoid misunderstandings and hence to
maintain confidence, a lawyer should fully and
promptly inform his client of material develop-
ments in the matters being handled for the client.
While a lawyer should guard against otherwise
proper conduct that has a tendency to diminish
public confidence in the legal system or in the
legal profession, his duty to clients or to the pub-
lic should never be subordinate merely because
the full discharge of his obligation may be misun-
derstood or may tend to subject him or the legal
profession to criticism. When explicit ethical
guidance does not exist, a lawyer should deter-
mine his conduct by acting in a manner that pro-
motes public confidence in the integrity and effi-
12 cf . ABA Canons 1 and 2.
1 "Integrity is the very breath of justice. Confidence
in our law, our courts, and in the administration of jus-
tice is our supreme interest. No practice must be permit-
ted to prevail which invites towards the administration of
justice a doubt or distrust of its integrity." Erwin M.
Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866,
868 (1928).
2 
"A lawyer should never be reluctant or too proud to
answer unjustified criticism of his profession, of himself,
or of his brother lawyer. He should guard the reputation
of his profession and of his brothers as zealously as he
guards his own." Rochelle and Payne, The Struggle for
Public Understanding, 25 Texas B.J. 109, 162 (1962).
ciency of the legal system and the legal profes-
sion.3
EC 9-3 After a lawyer leaves judicial office or
other public employment, he should not accept
employment in connection with any matter in
which he had substantial responsibility prior to
his leaving, since to accept employment would
give the appearance of impropriety even if none
exists.'
EC 9-4 Because the very essence of the legal sys-
tem is to provide procedures by which matters can
be presented in an impartial manner so that they
may be decided solely upon the merits, any state-
ment or suggestion by a lawyer that he can or
would attempt to circumvent those procedures is
detrimental to the legal system and tends to un-
dermine public confidence in it.
EC 9-5 Separation of the funds of a client from
those of his lawyer not only serves to protect the
client but also avoids even the appearance of im-
propriety, and therefore commingling of such
funds should be avoided.
EC 9-6 Every lawyer owes a solemn duty to up-
hold the integrity and honor of his profession; to
encourage respect of the law and for the courts
and the judges thereof; to observe the Code of
Professional Responsibility; to act as a member
of a learned profession, one dedicated to public
service; to cooperate with his brother lawyers in
supporting the organized bar through the devot-
ing of his time, efforts, and financial support as
his professional standing and ability reasonably
permit; to conduct himself so as to reflect credit
on the legal profession and to inspire the confi-
dence, respect, and trust of his clients and of the
public; and to strive to avoid not only profession-
al impropriety but also the appearance of impro-
priety.5
3 See ABA Canon 29.
4 See ABA Canon 36.
5 "As said in Opinion 49 of the Committee on Professional
Ethics and Grievances of the American Bar Association,
page 134: 'An attorney should not only avoid impropriety
but should avoid the appearance of impropriety.' " State
ex rel, Nebraska State Bar Ass'n v. Richards, 165 Neb. 80.
93, 84 N.W.2d 136, 145 (1957).
"It would also be preferable that such contribution [to
the campaign of a candidate for judicial office] be made
to a campaign committee rather than to the candidate
personally. In so doing, possible appearances of impro-
priety would be reduced to a minimum." ABA Opinion
226 (1941).
"The lawyer assumes high duties, and has imposed upon
him grave responsibilities. He may be the means of much
good or much mischief. Interests of vast magnitude are
entrusted to him; confidence is reposed in him ; life, lib-
erty, character and property should be protected by him.
He should guard, with jealous watchfulness, his own repu-
tation, as well as that of his profession." People ex rel.
Cutler v. Ford, 54 Ill. 520, 522 (1870), and also quoted in
State Board of Law Examiners v. Sheldon, 43 Wyo. 522,
526, 7 P.2d 226, 227 (1932).
See ABA Opinion 150 (1936).
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CODE OF PROFESSIONAL RESPONSIBILITY
DISCIPLINARY RULES
DR 9-101 Avoiding Even the Appearance of Im-
propriety.6
(A) A lawyer shall not accept private employ-
ment in a matter upon the merits of which
he has acted in a judicial capacity.?
(B) A lawyer shall not accept private employment
in a matter in which he had substantial re-
sponsibility while he was a public employee.8
(C) A lawyer shall not state or imply that he is
able to influence improperly or upon irrele-
vant grounds any tribunal, legislative body,9
or public official.
6 Cf. Code of Professional Responsibility, EC 5-6.
7 See ABA Canon 36.
"It is the duty of the judge to rule on questions of law
and evidence in misdemeanor cases and examinations in
felony cases. That duty calls for impartial and unin-
fluenced judgment, regardless of the effect on those im-
mediately involved or others who may, directly or indirect-
ly, be affected. Discharge of that duty might be greatly
interfered with if the judge, in another capacity, were
permitted to hold himself out to employment by those
who are to be, or who may be, brought to trial in felony
cases, even though he did not conduct the examination.
His private interests as a lawyer in building up his clien-
tele, his duty as such zealously to espouse the cause of
his private clients and to defend against charges of crime
brought by law-enforcement agencies of which he is a
part, might prevent, or even destroy, that unbiased judi-
cial judgment which is so essential in the administration
of justice.
"In our opinion, acceptance of a judgeship with the
duties of conducting misdemeanor trials, and examinations
in felony cases to determine whether those accused should
be bound over for trial in a higher court, ethically bars the
judge from acting as attorney for the defendants upon
such trial, whether they were examined by him or by
some other judge. Such a practice would not only dimin-
ish public confidence in the administration of justice in
both courts, but would produce serious conflict between
the private interests of the judge as a lawyer, and of his
clients, and his duties as a judge in adjudicating important
phases of criminal processes in other cases. The public
and private duties would be incompatible. The prestige
of the judicial office would be diverted to private benefit,
and the judicial office would be demeaned thereby." ABA
Opinion 242 (1942).
"A lawyer, who has previously occupied a judicial posi-
tion or acted in a judicial capacity, should refrain from
accepting employment in any matter involving the same
facts as were involved in any specific question which he
acted upon in a judicial capacity and, for the same rea-
sons, should also refrain from accepting any employment
which might reasonably appear to involve the same facts."
ABA Opinion 49 (1931).
See ABA Opinion 110 (1934).
8 See ABA Opinions 135 (1935) and 134 (1935) ; cf. ABA
Canon 36 and ABA Opinions 39 (1931) and 26 (1930). But
see ABA Opinion 37 (1931).
9 "[A statement by a governmental department or agency
with regard to a lawyer resigning from its staff that in-
cludes a laudation of his legal ability] carries implica-
tions, probably not founded in fact, that the lawyer's
acquaintance and previous relations with the personnel
of the administrative agencies of the government place
him in an advantageous position in practicing before such
agencies. So to imply would not only represent what prob-
DR 9-102 Preserving Identity of Funds and
Property of a Client.10
(A) All funds of clients paid to a lawyer or law
firm, other than advances for costs and ex-
penses, shall be deposited in one or more
identifiable bank accounts maintained in the
state in which the law office is situated and
no funds belonging to the lawyer or law firm
shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay
bank charges may be deposited there-
in.
(2) Funds belonging in part to a client and
in part presently or potentially to the
lawyer or law firm must be deposited
therein, but the portion belonging to
the lawyer or law firm may be with-
drawn when due unless the right of
the lawyer or law firm to receive it is
disputed by the client, in which event
the disputed portion shall not be with-
drawn until the dispute is finally re-
solved.
(B) A lawyer shall:
(1) Promptly notify a client of the receipt
of his funds, securities, or other prop-
erties.
(2) Identify and label securities and prop-
erties of a client promptly upon receipt
and place them in a safe deposit box
or other place of safekeeping as soon
as practicable.
(3) Maintain complete records of all funds,
securities, and other properties of a
client coming into the possession of the
ably is untrue, but would be highly reprehensible." ABA
Opinion 184 (1938).
10 See ABA Canon 11.
"Rule 9. . . . A member of the State Bar shall not
commingle the money or other property of a client with
his own ; and he shall promptly report to the client the
receipt by him of all money and other property belonging
to such client. Unless the client otherwise directs in writ-
ing, he shall promptly deposit his client's funds in a bank
or trust company . . . in a bank account separate
from his own account and clearly designated as 'Clients'
Funds Account' or 'Trust Funds Account' or words of
similar import. Unless the client otherwise directs in writ-
ing, securities of a client in bearer form shall be kept by
the attorney in a safe deposit box at a bank or trust com-
pany, . . . which safe deposit box shall be clearly
designated as 'Clients' Account' or 'Trust Account' or words
of similar import, and be separate from the attorney's own
safe deposit box." Cal.Business and Professions Code
§ 6076 (West 1962).
"[C]ommingling is committed when a client's money is
intermingled with that of his attorney and its separate
identity lost so that it may be used for the attorney's per-
sonal expenses or subjected to claims of his creditors.
. . . The rule against commingling was adopted to
provide against the probability in some cases, the possi-
bility in many cases, and the danger in all cases that such
commingling will result in the loss of clients' money."
Black v. State Bar, 57 Ca1.2d 219, 225-26, 368 P.2d 118, 122,
18 Cal.Rptr. 518, 522 (1962).
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CODE OF PROFESSIONAL RESPONSIBILITY
sistance to his client,34  except that a lawyer
may advance or guarantee the expenses of
litigation, including court costs, expenses of
investigation, expenses of medical examina-
tion, and costs of obtaining and presenting
evidence, provided the client remains ultimate-
ly liable for such expenses.
DR 5-104 Limiting Business Relations with a
Client.
(A) A lawyer shall not enter into a business trans-
action with a client if they have differing
interests therein and if the client expects the
lawyer to exercise his professional judgment
therein for the protection of the client, unless
the client has consented after full disclosure.
(B) Prior to conclusion of all aspects of the mat-
ter giving rise to his employment, a lawyer
shall not enter into any arrangement or un-
derstanding with a client or a prospective
client by which he acquires an interest hi pub-
lication rights with respect to the subject
matter of his employment or proposed em-
ployment.
DR 5-105 Refusing to Accept or Continue Em-
ployment if the Interests of Another
Client May Impair the Independent
Professional Judgment of the Lawyer.
(A) A lawyer shall decline proffered employment
if the exercise of his independent professional
judgment in behalf of a client will be or is
likely to be adversely affected by the accept-
ance of the proffered employment, 35 except
to the extent permitted under DR 5-105(C).36
(B) A lawyer shall not continue multiple employ-
ment if the exercise of his independent pro-
fessional judgment in behalf of a client will
be or is likely to be adversely affected by his
representation of another client, except to the
extent permitted under DR 5-105(C).37
(C) In the situations covered by DR 5-105(A) and
(B), a lawyer may represent multiple clients
if it is obvious that he can adequately rep-
resent the interest of each and if each con-
sents to the representation after full disclo-
sure of the possible effect of such representa-
tion on the exercise of his independent pro-
fessional judgment on behalf of each.
34 See ABA Canon 42; cf. ABA Opinion 288 (1954).
35 See ABA Canon 6; cf. ABA Opinions 167 (1937), 60
(1931), and 40 (1931).
36 ABA Opinion 247 (1942) held that an attorney could
not investigate a night club shooting on behalf of one of
the owner's liability insurers, obtaining the cooperation of
the owner, and later represent the injured patron in an
action against the owner and a different insurance com-
pany unless the attorney obtain the "express consent of
all concerned given after a full disclosure of the facts,"
since to do so would be to represent conflicting interests.
See ABA Opinions 247 (1942), 224 (1941), 222 (1941), 218
(1941), 112 (1934), 83 (1932), and 86 (1932).
37 Cf. ABA Opinions 231 (1941) and 160 (1936).
(D) If a lawyer is required to decline employment
or to withdraw from employment under DR
5-105, no partner or associate of his or his
firm may accept or continue such employ-
ment.
DR 5-106 Settling Similar Claims of Clients.38
(A) A lawyer who represents two or more clients
shall not make or participate in the making
of an aggregate settlement of the claims of
or against his clients, unless each client has
consented to the settlement after being ad-
vised of the existence and nature of all the
claims involved in the proposed settlement, of
the total amount of the settlement, and of the
participation of each person in the settlement.
DR 5-107 Avoiding Influence by Others Than
the Client.
(A) Except with the consent of his client after
full disclosure, a lawyer shall not:
(1) Accept compensation for his legal serv-
ices from one other than his client.
(2) Accept from one other than his client any
thing of value related to his representa-
tion of or his employment by his client.39
(B) A lawyer shall not permit a person who rec-
ommends, employs, or pays him to render
legal services for another to direct or regulate
his professional judgment in rendering such
legal services.40
(C) A lawyer shall not practice with or in the
form of a professional corporation or asso-
ciation authorized to practice law for a profit,
if:
(1) A non-lawyer owns any interest therein,41
except that a fiduciary representative of
the estate of a lawyer may hold the stock
or interest of the lawyer for a reasonable
time during administration;
(2) A non-lawyer is a corporate director or
officer thereof; 42 or
38 Cf. ABA Opinions 243 (1942) and 235 (1941).
39 See ABA Canon 38.
"A lawyer who receives a commission (whether delayed
or not) from a title insurance company or guaranty fund
for recommending or selling the insurance to his client, or
for work done for the client or the company, without
either fully disclosing to the client his financial interest
in the transaction, or crediting the client's bill with the
amount thus received, is guilty of unethical conduct."
ABA Opinion 304 (1962).
40 See ABA Canon 35; cf. ABA Opinion 237 (1941).
"When the lay forwarder, as agent for the creditor, for-
wards a claim to an attorney, the direct relationship of
attorney and client shall then exist between the attorney
and the creditor, and the forwarder shall not interpose
itself as an intermediary to control the activities of the
attorney." ABA Opinion 294 (1958).
41 "Permanent beneficial and voting rights in the or-
ganization set up to practice law, whatever its form, must
be restricted to lawyers while the organization is engaged
in the practice of law." ABA Opinion 303 (1961).
42 "Canon 33 . . . promulgates underlying principles
that must be observed no matter in what form of organiza-
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CODE OF PROFESSIONAL RESPONSIBILITY
(3) A non-lawyer has the right to direct or
control the professional judgment of a
lawyer.43
CANON 6
A Lawyer Should Represent a Client
Competently
ETHICAL CONSIDERATIONS
EC 6-1 Because of his vital role in the legal
process, a lawyer should act with competence and
proper care in representing clients. He should
strive to become and remain proficient in his prac-
tice 1 and should accept employment only in mat-
ters which he is or intends to become competent
to handle.
EC 6-2 A lawyer is aided in attaining and main-
taining his competence by keeping abreast of cur-
rent legal literature and developments, participat-
tion lawyers practice law. Its requirement that no person
shall be admitted or held out as a practitioner or member
who is not a member of the legal profession duly author-
ized to practice, and amenable to professional discipline,
makes it clear that any centralized management must be
in lawyers to avoid a violation of this Canon." ABA Opin-
ion 303 (1961).
43 "There is no intervention of any lay agency between
lawyer and client when centralized management provided
only by lawyers may give guidance or direction to the
services being rendered by a lawyer-member of the or-
ganization to a client. The language in Canon 35 that a
lawyer should avoid all relations which direct the per-
formance of his duties by or in the interest of an inter-
mediary refers to lay intermediaries and not lawyer in-
termediaries with whom he is associated in the practice
of law." ABA Opinion 303 (1961).
1 "[W]hen a citizen is faced with the need for a lawyer,
he wants, and is entitled to, the best informed counsel
he can obtain. Changing times produce changes in our
laws and legal procedures. The natural complexities of
law require continuing intensive study by a lawyer if he
is to render his clients a maximum of efficient service.
And, in so doing, he maintains the high standards of the
legal profession; and he also increases respect and con-
fidence by the general public." Rochelle & Payne, The
Struggle for Public Understanding, 25 Texas B.J. 109, 160
(1962).
"We have undergone enormous changes in the last fifty
years within the lives of most of the adults living today
who may be seeking advice. Most of these changes
have been accompanied by changes and developments in
the law. . . . Every practicing lawyer encounters these
problems and is often perplexed with his own inability
to keep up, not only with changes in the law, but also
with changes in the lives of his clients and their legal
problems.
"To be sure, no client has a right to expect that his law-
yer will have all of the answers at the end of his tongue
or even in the back of his head at all times, But the
client does have the right to expect that the lawyer will
have devoted his time and energies to maintaining and
improving his competence to know where to look for the
answers, to know how to deal with the problems, and to
know how to advise to the best of his legal talents and
abilities." Levy & Sprague, Accounting and Law: Is Dual
Practice in the Public Interest?, 52 A.B.A.J. 1110, 1112
(1966).
ing in continuing legal education programs,2 con-
centrating in particular areas of the law, and by
utilizing other available means. He has the addi-
tional ethical obligation to assist in improving
the legal profession, and he may do so by par-
ticipating in bar activities intended to advance the
quality and standards of members of the pro-
fession. Of particular importance is the careful
training of his younger associates and the giving
of sound guidance to all lawyers who consult him.
In short, a lawyer should strive at all levels to aid
the legal profession in advancing the highest pos-
sible standards of integrity and competence and
to meet those standards himself.
EC 6-3 While the licensing of a lawyer is evi-
dence that he has met the standards then prevail-
ing for admission to the bar, a lawyer generally
should not accept employment in any area of the
law in which he is not qualified. 3 However, he
may accept such employment if in good faith he
expects to become qualified through study and in-
vestigation, as long as such preparation would not
result in unreasonable delay or expense to his
client. Proper preparation and representation
may require the association by the lawyer of pro-
fessionals in other disciplines. A lawyer offered
employment in a matter in which he is not and
does not expect to become so qualified should ei-
ther decline the employment or, with the consent
of his client, accept the employment and associate
a lawyer who is competent in the matter.4
EC 6-4 Having undertaken representation, a law-
yer should use proper care to safeguard the in-
terests of his client. If a lawyer has accepted em-
ployment in a matter beyond his competence but
in which he expected to become competent, he
should diligently undertake the work and study
necessary to qualify himself. In addition to being
qualified to handle a particular matter, his obli-
gation to his client requires him to prepare ade-
quately for and give appropriate attention to his
legal work.
EC 6-5 A lawyer should have pride in his pro-
fessional endeavors. His obligation to act com-
petently calls for higher motivation than that
arising from fear of civil liability or disciplinary
penalty.
2 ‘‘The whole purpose of continuing legal education, so
enthusiastically supported by the ABA, is to make it pos-
sible for lawyers to make themselves better lawyers.
But there are no nostrums for proficiency in the law; it
must come through the hard work of the lawyer himself.
To the extent that that work, whether it be in attending
institutes or lecture courses, in studying after hours or in
the actual day in and day out practice of his profession,
can be concentrated within a limited field, the greater the
proficiency and expertness that can be developed." Re-
port of the Special Committee on Specialization and Spe-
cialized Legal Education, 79 A.B.A.Rep. 582, 588 (1954).
3 "If the attorney is not competent to skillfully and
properly perform the work, he should not undertake the
service." Degen v. Steinbrink, 202 App.Div. 477, 481, 195
N.Y.S. 810, 814 (1922), aff'd mem., 236 N.Y. 669, 142 N.E.
328 (1923).
4 Cf. ABA Opinion 232 (1941).
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EC 6-6 A lawyer should not seek, by contract or
other means, to limit his individual liability to his
client for his malpractice. A lawyer who handles
the affairs of his client properly has no need to
attempt to limit his liability for his professional
activities and one who does not handle the affairs
of his client properly should not be permitted to
do so. A lawyer who is a stockholder in or is as-
sociated with a professional legal corporation may,
however, limit his liability for malpractice of his
associates in the corporation, but only to the ex-
tent permitted by law.5
DISCIPLINARY RULES
DR 6-101 Failing to Act Competently.
(A) A lawyer shall not:
(1) Handle a legal matter which he knows
or should know that he is not competent
to handle, without associating with him
a lawyer who is competent to handle it.
(2) Handle a legal matter without prepara-
tion adequate in the circumstances.
(3) Neglect a legal matter entrusted to him.6
DR 6-102 Limiting Liability to Client.
(A) A lawyer shall not attempt to exonerate him-
self from or limit his liability to his client
for his personal malpractice.
CANON 7
A Lawyer Should Represent a Client Zealously
Within the Bounds of the Law
ETHICAL CONSIDERATIONS
EC 7-1 The duty of a lawyer, both to his client 1
and to the legal system, is to represent his client
zealously 2 
within the bounds of the law, 3 which
See ABA Opinion 303 (1961) ; cf. Code of Professional
Responsibility, EC 2-11.
6 
The annual report for 1967-1968 of the Committee on
Grievances of the Association of the Bar of the City of
New York showed a receipt of 2,232 complaints ; of the
828 offenses against clients, 76 involved conversion, 49
involved "overreaching," and 452, or more than half of
all such offenses, involved neglect. Annual Report of the
Committee on Grievances of the Association of the Bar of
the City of New York, N.Y.L.J., Sept. 12, 1968, at 4, col. 5.
1 "The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to be heard
by counsel. Even the intelligent and educated layman has
small and sometimes no skill in the science of law."
Powell v. Alabama, 287 U.S. 45, 68-69, 77 L.Ed. 158, 170, 53
S.Ct. 55, 64 (1932).
2 Cf. ABA Canon 4.
"At times . . . [the tax lawyer] will be wise to dis-
card some arguments and he should exercise discretion to
emphasize the arguments which in his judgment are most
likely to be persuasive. But this process involves legal
judgment rather than moral attitudes. The tax lawyer
should put aside private disagreements with Congressional
and Treasury policies. His own notions of policy, and
his personal view of what the law should be, are irrelevant.
The job entrusted to him by his client is to use all his
learning and ability to protect his client's rights, not to
includes Disciplinary Rules and enforceable pro-
help in the process of promoting a better tax system. The
tax lawyer need not accept his client's economic and
social opinions, but the client is paying for technical at-
tention and undivided concentration upon his affairs. He
is equally entitled to performance unfettered by his attor-
ney's economic and social predilections." Paul, The Law-
yer as a Tax Adviser, 25 Rocky Mt. L. Rev. 412, 418
(1953).
3 See ABA Canons 15 and 32.
ABA Canon 5, although only speaking of one accused
of crime, imposes a similar obligation on the lawyer :
"[T]he lawyer is bound, by all fair and honorable means,
to present every defense that the law of the land per-
mits, to the end that no person may be deprived of life
or liberty, but by due process of law."
"Any persuasion or pressure on the advocate which de-
ters him from planning and carrying out the litigation on
the basis of 'what, within the framework of the law, is
best for my client's interest?' interferes with the obligation
to represent the client fully within the law.
"This obligation, in its fullest sense, is the heart of the
adversary process. Each attorney, as an advocate, acts
for and seeks that which in his judgment is best for
his client, within the bounds authoritatively established.
The advocate does not decide what is just in this case--
he would be usurping the function of the judge and jury—
he acts for and seeks for his client that which he is en-
titled to under the law. He can do no less and properly
represent the client." Thode, The Ethical Standard for
the Advocate, 39 Texas L.Rev. 575, 584 (1961).
"The [Texas public opinion] survey indicates that dis-
trust of the lawyer can be traced directly to certain
factors. Foremost of these is a basic misunderstanding
of the function of the lawyer as an advocate in an ad-
versary system.
"Lawyers are accused of taking advantage of 'loopholes'
and 'technicalities' to win. Persons who make this charge
are unaware, or do not understand, that the lawyer is
hired to win, and if he does not exercise every legiti-
mate effort in his client's behalf, then he is betraying
a sacred trust." Rochelle & Payne, The Struggle for
Public Understanding, 25 Texas B.J. 109, 159 (1962).
"The importance of the attorney's undivided allegiance
and faithful service to one accused of crime, irrespective
of the attorney's personal opinion as to the guilt of his
client, lies in Canon 5 of the American Bar Association
Canon of Ethics.
"The difficulty lies, of course, in ascertaining whether
the attorney has been guilty of an error of judgment,
such as an election with respect to trial tactics, or
has otherwise been actuated by his conscience or belief
that his client should be convicted in any event. All
too frequently courts are called upon to review actions
of defense counsel which are, at the most, errors of
judgment, not properly reviewable on habeas corpus un-
less the trial is a farce and a mockery of justice which
requires the court to intervene.  . . . But when
defense counsel, in a truly adverse proceeding, admits that
his conscience would not permit him to adopt certain
customary trial procedures, this extends beyond the realm
of judgment and strongly suggests an invasion of con-
stitutional rights." Johns v. Smyth, 176 F.Supp. 949, 952
(E.D.Va.1959), modified, United States ex rel. Wilkins v.
Banmiller, 205 F.Supp. 123, 128, n. 5 (E.D.Pa.1962), aff'd,
325 F.2d 514 (3d Cir. 1963), cert. denied, 379 U.S. 847, 13
L.Ed.2d 51, 85 S.Ct. 87 (1964).
"The adversary system in law administration bears a
striking resemblance to the competitive economic system.
In each we assume that the individual through partisan-
ship or through self-interest will strive mightily for his
side, and that kind of striving we must have. But neither
system would be tolerable without restraints and modi-
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fessional regulations.4 The professional respon-
sibility of a lawyer derives from his membership
in a profession which has the duty of assisting
members of the public to secure and protect avail-
able legal rights and benefits. In our government
of laws and not of men, each member of our so-
ciety is entitled to have his conduct judged and
regulated in accordance with the law; 5 to seek
any lawful objective 6 through legally permissible
means; 7 and to present for adjudication any law-
ful claim, issue, or defense.
EC 7-2 The bounds of the law in a given case
are often difficult to ascertain.8 The language of
fications, and at times without outright departures from
the system itself. Since the legal profession is entrusted
with the system of law administration, a part of its task
is to develop in its members appropriate restraints without
impairing the values of partisan striving. An accompany-
ing task is to aid in the modification of the adversary sys-
tem or departure from it in areas to which the system is
unsuited." Cheatham, The Lawyer's Role and Surround-
ings, 25 Rocky Mt. L.Rev. 405, 410 (1953).
4 "Rule 4.15 prohibits, in the pursuit of a client's cause,
'any manner of fraud or chicane' ; Rule 4.22 requires 'can-
dor and fairness' in the conduct of the lawyer, and for-
bids the making of knowing misquotations; Rule 4.47
provides that a lawyer 'should always maintain his in-
tegrity,' and generally forbids all misconduct injurious to
the interests of the public, the courts, or his clients, and
acts contrary to 'justice, honesty, modesty or good morals.'
Our Commissioner has accurately paraphrased these rules
as follows : 'An attorney does not have the duty to do
all and whatever he can that may enable him to win his
client's cause or to further his client's interest. His duty
and efforts in these respects, although they should be
prompted by his "entire devotion" to the interest of his
client, must be within and not without the bounds of
the law.' " In re Wines, 370 S.W.2d 328, 333 (Mo.1963).
See Note, 38 Texas L.Rev. 107, 110 (1959).
5 "Under our system of government the process of ad-
judication is surrounded by safeguards evolved from cen-
turies of experience. These safeguards are not designed
merely to lend formality and decorum to the trial of
causes. They are predicated on the assumption that to se-
cure for any controversy a truly informed and dispassion-
ate decision is a difficult thing, requiring for its achieve-
ment a special summoning and organization of human ef-
fort and the adoption of measures to exclude the biases and
prejudgments that have free play outside the courtroom.
All of this goes for naught if the man with an unpopular
cause is unable to find a competent lawyer courageous
enough to represent him. His chance to have his day in
court loses much of its meaning if his case is handicapped
from the outset by the very kind of prejudgment our
rules of evidence and procedure are intended to prevent."
Professional Responsibility: Report of the Joint Con-
ference, 44 A.B.A.J. 1159, 1216 (1958).
6 "[I]t  is . . . [the tax lawyer's] positive duty to
show the client how to avail himself to the full of what
the law permits. He is not the keeper of the Congres-
sional conscience." Paul, The Lawyer as a Tax Adviser, 25
Rocky Mt.L.Rev. 412, 418 (1953).
7 See ABA Canons 15 and 30.
"The fact that it desired to evade the law, as it is
called, is immaterial, because the very meaning of a line
in the law is that you intentionally may go as close to
it as you can if you do not pass it . . .. It is a mat-
ter of proximity and degree as to which minds will differ
Justice Holmes, in Superior Oil Co. v. Missis-. •
legislative enactments and judicial opinions may
be uncertain as applied to varying factual situa-
tions. The limits and specific meaning of ap-
parently relevant law may be made doubtful by
changing or developing constitutional interpreta-
tions, inadequately expressed statutes or judicial
opinions, and changing public and judicial at-
titudes. Certainty of law ranges from well-settled
rules through areas of conflicting authority to
areas without precedent.
EC 7-3 Where the bounds of law are uncertain,
the action of a lawyer may depend on whether he
is serving as advocate or adviser. A lawyer may
serve simultaneously as both advocate and adviser,
but the two roles are essentially different. 9 In
asserting a position on behalf of his client, an
advocate for the most part deals with past con-
duct and must take the facts as he finds them.
By contrast, a lawyer serving as adviser primarily
assists his client in determining the course of fu-
ture conduct and relationships. While serving as
advocate, a lawyer should resolve in favor of his
client doubts as to the bounds of the law. 10 In
serving a client as adviser, a lawyer in appropriate
sippi, 280 U.S. 390, 395-96, 74 L. Ed. 504, 508, 50 S.Ct. 169,
170 (1930).
9 "Today's lawyers perform two distinct types of func-
tions, and our ethical standards should, but in the main
do not, recognize these two functions. Judge Philbrick
McCoy recently reported to the American Bar Association
the need for a reappraisal of the Canons in light of the
new and distinct function of counselor, as distinguished
from advocate, which today predominates in the legal pro-
fession. . . .
". • . In the first place, any revision of the canons
must take into account and speak to this new and now
predominant function of the lawyer. . . . It is be-
yond the scope of this paper to discuss the ethical stand-
ards to be applied to the counselor except to state that
in my opinion such standards should require a greater
recognition and protection for the interest of the public
generally than is presently expressed in the canons.
Also, the counselor's obligation should extend to requiring
him to inform and to impress upon the client a just solu-
tion of the problem, considering all interests involved."
Thode, The Ethical Standard for the Advocate, 39 Texas
L.Rev. 575, 578-79 (1961).
"The man who has been called into court to answer for
his own actions is entitled to fair hearing. Partisan ad-
vocacy plays its essential part in such a hearing, and the
lawyer pleading his client's case may properly present it
in the most favorable light. A similar resolution of doubts
in one direction becomes inappropriate when the lawyer
acts as counselor. The reasons that justify and even
require partisan advocacy in the trial of a cause do not
grant any license to the lawyer to participate as legal ad-
visor in a line of conduct that is immoral, unfair, or of
doubtful legality. In saving himself from this unworthy
involvement, the lawyer cannot be guided solely by an un-
reflective inner sense of good faith; he must be at pains
to preserve a sufficient detachment from his client's in-
terests so that he remains capable of a sound and objec-
tive appraisal of the propriety of what his client proposes
to do." Professional Responsibility: Report of the Joint
Conference, 44 A.B.A.J, 1159, 1161 (1958).
10 "[A] lawyer who is asked to advise his client
. . . may freely urge the statement of positions most
favorable to the client just as long as there is reasonable
basis for those positions." ABA Opinion 314 (1965).
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circumstances should give his professional opinion
as to what the ultimate decisions of the courts
would likely be as to the applicable law.
Duty of the Lawyer to a Client
EC 7-4 The advocate may urge any permissible
construction of the law favorable to his client,
without regard to his professional opinion as to
the likelihood that the construction will ultimate-
ly prevai1,11 His conduct is within the bounds of
the law, and therefore permissible, if the position
taken is supported by the law or is supportable
by a good faith argument for an extension, modi-
fication, or reversal of the law. However, a law-
yer is not justified in asserting a position in liti-
gation that is frivolous
11 "The lawyer . . . is not an umpire, but an ad-
vocate. He is under no duty to refrain from making every
proper argument in support of any legal point because
he is not convinced of its inherent soundness. . . .
His personal belief in the soundness of his cause or of the
authorities supporting it, is irrelevant." ABA Opinion 280
(1949).
"Counsel apparently misconceived his role. It was his
duty to honorably present his client's contentions in the
light most favorable to his client. Instead he presumed
to advise the court as to the validity and sufficiency of
prisoner's motion, by letter. We therefore conclude that
the prisoner had no effective assistance of counsel and
remand this case to the District Court with instructions to
set aside the Judgment, appoint new counsel to represent
the prisoner if he makes no objection thereto, and proceed
anew." McCartney v. United States, 343 F.2d 471, 472 (9th
Cir. 1965).
12 "Here the court-appointed counsel had the transcript
but refused to proceed with the appeal because he found
no merit in it. . . . We cannot say that there was
a finding of frivolity by either of the California courts or
that counsel acted in any greater capacity than merely as
amicus curiae which was condemned in Ellis, supra.
Hence California's procedure did not furnish petitioner
with counsel acting in the role of an advocate nor did it
provide that full consideration and resolution of the mat-
ter as is obtained when counsel is acting in that capacity.
"The constitutional requirement of substantial equality
and fair process can only be attained where counsel acts in
the role of an active advocate in behalf of his client, as
opposed to that of amicus curiae. The no-merit letter and
the procedure it triggers do not reach that dignity. Coun-
sel should, and can with honor and without conflict, be of
more assistance to his client and to the court. His role
as advocate requires that he support his client's appeal to
the best of his ability. Of course, if counsel finds his
case to be wholly frivolous, after a conscientious examina-
tion of it, he should so advise the court and request per-
mission to withdraw. That request must, however, be
accompanied by a brief referring to anything in the record
that might arguably support the appeal. A copy of coun-
sel's brief should be furnished the indigent and time al-
lowed him to raise any points that he chooses; the court—
not counsel—then proceeds, after a full examination of all
the proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel's request to
withdraw and dismiss the appeal insofar as federal re-
quirements are concerned, or proceed to a decision on
the merits, if state law so requires. On the other hand,
if it finds any of the legal points arguable on their merits
(and therefore not frivolous) it must, prior to decision,
afford the indigent the assistance of counsel to argue the
appeal." Anders v. California, 386 U.S. 738, 744, 18 L.Ed.
EC 7-5 A lawyer as adviser furthers the inter-
est of his client by giving his professional opinion
as to what he believes would likely be the ulti-
mate decision of the courts on the matter at hand
and by informing his client of the practical effect
of such decision.'3
 He may continue in the rep-
resentation of his client even though his client has
elected to pursue a course of conduct contrary to
the advice of the lawyer so long as he does not
thereby knowingly assist the client to engage in
illegal conduct or to take a frivolous legal posi-
tion. A lawyer should never encourage or aid his
client to commit criminal acts or counsel his client
on how to violate the law and avoid punishment
therefor.14
EC 7-6 Whether the proposed action of a lawyer
is within the bounds of the law may be a perplex-
ing question when his client is contemplating a
course of conduct having legal consequence that
vary according to the client's intent, motive, or de-
sires at the time of the action. Often a lawyer
is asked to assist his client in developing evidence
relevant to the state of mind of the client at a
particular time. He may properly assist his client
in the development and preservation of evidence
of existing motive, intent, or desire; obviously, he
may not do anything furthering the creation or
preservation of false evidence. In many cases a
lawyer may not be certain as to the state of mind
of his client, and in those situations he should re-
solve reasonable doubts in favor of his client.
EC 7-7 In certain areas of legal representation
not affecting the merits of the cause or substan-
tially prejudicing the rights of a client, a lawyer is
entitled to make decisions on his own. But other-
wise the authority to make decisions is exclusively
that of the client and, if made within the frame-
work of the law, such decisions are binding on his
lawyer. As typical examples in civil cases, it is
for the client to decide whether he will accept a
settlement offer or whether he will waive his right
to plead an affirmative defense. A defense law-
yer in a criminal case has the duty to advise his
client fully on whether a particular plea to a
charge appears to be desirable and as to the pros-
2d 493, 498, 87 S.Ct. 1396, 1399-1400 (1967), rehearing de-
nied, 388 U.S. 924, 18 L.Ed.2d 1377, 87 S.Ct. 2094 (1967).
See Paul, The Lawyer As a Tax Adviser, 25 Rocky Mt.
L. Rev. 412, 432 (1953).
13 See ABA Canon 32.
14 "For a lawyer to represent a syndicate notoriously
engaged in the violation of the law for the purpose of ad-
vising the members how to break the law and at the same
time escape it, is manifestly improper. While a lawyer
may see to it that anyone accused of crime, no matter
how serious and flagrant, has a fair trial, and present all
available defenses, he may not co-operate in planning vio-
lations of the law. There is a sharp distinction, of course,
between advising what can lawfully be done and advising
how unlawful acts can be done in a way to avoid con-
viction. Where a lawyer accepts a retainer from an
organization, known to be unlawful, and agrees in ad-
vance to defend its members when from time to time they
are accused of crime arising out of its unlawful activities,
this Is equally improper."
"See also Opinion 155." ABA Opinion 281 (1952).
.12
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CODE OF PROFESSIONAL RESPONSIBILITY
pects of success on appeal, but it is for the client
to decide what plea should be entered and whether
an appeal should be taken.15
EC 7-8 A lawyer should exert his best efforts to
insure that decisions of his client are made only
after the client has been informed of relevant con-
siderations. A lawyer ought to initiate this de-
cision-making process if the client does not do so.
Advice of a lawyer to his client need not be con-
fined to purely legal considerations.16 A lawyer
should advise his client of the possible effect of
each legal alternative.17 A lawyer should bring
to bear upon this decision-making process the full-
ness of his experience as well as his objective
viewpoint's In assisting his client to reach a
proper decision, it is often desirable for a lawyer
to point out those factors which may lead to a
decision that is morally just as well as legally per-
missible.19 He may emphasize the possibility of
harsh consequences that might result from as-
sertion of legally permissible positions. In the
final analysis, however, the lawyer should always
remember that the decision whether to forego le-
gally available objectives or methods because of
non-legal factors is ultimately for the client and
15 See ABA Special Committee on Minimum Standards
for the Administration of Criminal Justice, Standards Re-
lating to Pleas of Guilty pp. 69-70 (1968).
16 "First of all, a truly great lawyer is a wise counselor
to all manner of men in the varied crises of their lives
when they most need disinterested advice. Effective
counseling necessarily involves a thoroughgoing knowledge
of the principles of the law not merely as they appear in
the books but as they actually operate in action." Van-
derbilt, The Five Functions of the Lawyer: Service to
Clients and the Public, 40 A.B.A.J. 31 (1954).
17 "A lawyer should endeavor to obtain full knowledge of
his client's cause before advising thereon. . . ." ABA
Canon 8.
18 "[I]n  devising charters of collaborative effort the
lawyer often acts where all of the affected parties are
present as participants. But the lawyer also performs
a similar function in situations where this is not so, as,
for example, in planning estates and drafting wills. Here
the instrument defining the terms of collaboration may
affect persons not present and often not born. Yet here,
too, the good lawyer does not serve merely as a legal con-
duit for his client's desires, but as a wise counselor, ex-
perienced in the art of devising arrangements that will
put in workable order the entangled affairs and interests
of human beings." Professional Responsibility: Report
of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958).
19 See ABA Canon 8.
"Vital as is the lawyer's role in adjudication, it should
not be thought that it is only as an advocate pleading in
open court that he contributes to the administration of
the law. The most effective realization of the law's aims
often takes place in the attorney's office, where litigation
is forestalled by anticipating its outcome, where the law-
yer's quiet counsel takes the place of public force. Con-
trary to popular belief, the compliance with the law thus
brought about is not generally lip-serving and narrow, for
aj reminding him of its long-run costs the lawyer often
deters his client from a course of conduct technically per-
missible under existing law, though Inconsistent with its
underlying spirit and purpose." Professional Responsi-
bility: Report of the Joint Conference, 44 A.B.A.J. 1159,
1161 (1958).
not for himself, In the event that the client in a
non-adjudicatory matter insists upon a course of
conduct that is contrary to the judgment and ad-
vice of the lawyer but not prohibited by Disciplin-
ary Rules, the lawyer may withdraw from the
employment.20
EC 7-9 In the exercise of his professional judg-
ment on those decisions which are for his deter-
mination in the handling of a legal matter,21 a law-
yer should always act in a manner consistent with
the best interests of his client.22  However, when
an action in the best interest of his client seems
to him to be unjust, he may ask his client for
permission to forego such action.23
EC 7-10 The duty of a lawyer to represent his
client with zeal does not militate against his con-
current obligation to treat with consideration all
persons involved in the legal process and to avoid
the infliction of needless harm.
EC 7-11 The responsibilities of a lawyer may
vary according to the intelligence, experience, men-
tal condition or age of a client, the obligation of
a public officer, or the nature of a particular pro-
ceeding. Examples include the representation of
an illiterate or an incompetent, service as a pub-
lic prosecutor or other government lawyer, and
appearances before administrative and legislative
bodies.
EC 7-12 Any mental or physical condition of a
client that renders him incapable of making a con-
sidered judgment on his own behalf casts addi-
tional responsibilities upon his lawyer. Where an
incompetent is acting through a guardian or other
legal representative, a lawyer must look to such
representative for those decisions which are nor-
mally the prerogative of the client to make. If a
client under disability has no legal representative,
his lawyer may be compelled in court proceedings
to make decisions on behalf of the client. If the
client is capable of understanding the matter in
question or of contributing to the advancement of
his interests, regardless of whether he is legally
disqualified from performing certain acts, the law-
yer should obtain from him all possible aid. If
the disability of a client and the lack of a legal
representative compel the lawyer to make deci-
sions for his client, the lawyer should consider all
20 "My summation of Judge Sharswood's view of the
advocate's duty to the client is that he owes to the client
the duty to use all legal means in support of the client's
case. However, at the same time Judge Sharswood recog-
nized that many advocates would find this obligation un-
bearable if applicable without exception. Therefore, the
individual lawyer is given the choice of representing his
client fully within the bounds set by the law or of telling
his client that he cannot do so, so that the client may ob-
tain another attorney if he wishes." Thode, The Ethical
Standard for the Advocate, 39 Texas L.Rev. 575, 582 (1961).
Cf. Code of Professional Responsibility, DR 2-110 (C).
21 See ABA Canon 24.
22 Thode, The Ethical Standard for the Advocate, 39
Texas L.Rev. 575, 592 (1961).
23 Cf. ABA Opinions 253 (1946) and 178 (1938).
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circumstances then prevailing and act with care
to safeguard and advance the interests of his
client. But obviously a lawyer cannot perform
any act or make any decision which the law re-
quires his client to perform or make, either act-
ing for himself if competent, or by a duly consti-
tuted representative if legally incompetent.
EC 7-13 The responsibility of a public prosecutor
differs from that of the usual advocate; his duty
is to seek justice, not merely to convict. 24 This
special duty exists because: (1) the prosecutor
represents the sovereign and therefore should use
restraint in the discretionary exercise of govern-
mental powers, such as in the selection of cases
to prosecute; (2) during trial the prosecutor is not
only an advocate but he also may make decisions
normally made by an individual client, and those
affecting the public interest should be fair to all;
and (3) in our system of criminal justice the ac-
cused is to be given the benefit of all reasonable
doubts. With respect to evidence and witnesses,
the prosecutor has responsibilities different from
those of a lawyer in private practice: the prose-
cutor should make timely disclosure to the de-
fense of available evidence, known to him, that
tends to negate the guilt of the accused, mitigate
the degree of the offense, or reduce the punish-
ment. Further, a prosecutor should not intention-
ally avoid pursuit of evidence merely because he
believes it will damage the prosecution's case or
aid the accused.
EC 7-14 A government lawyer who has discre-
tionary power relative to litigation should refrain
from instituting or continuing litigation that is
obviously unfair. A government lawyer not hav-
ing such discretionary power who believes there
is lack of merit in a controversy submitted to him
should so advise his superiors and recommend the
avoidance of unfair litigation. A government law-
yer in a civil action or administrative proceeding
has the responsibility to seek justice and to de-
velop a full and fair record, and he should not
use his position or the economic power of the
government to harass parties or to bring about
unjust settlements or results.
24 See ABA Canon 5 and Berger v. United States, 295
U.S. 78, 79 L. Ed. 1314, 55 S.Ct. 629 (1935).
"The public prosecutor cannot take as a guide for the
conduct of his office the standards of an attorney appear-
ing on behalf of an individual client. The freedom else-
where wisely granted to a partisan advocate must be
severely curtailed if the prosecutor's duties are to be prop-
erly discharged. The public prosecutor must recall that
he occupies a dual role, being obligated, on the one hand,
to furnish that adversary element essential to the in-
formed decision of any controversy, but being possessed,
on the other, of important governmental powers that are
pledged to the accomplishment of one objective only, that
of impartial justice. Where the prosecutor is recreant to
the trust implicit in his office, he undermines confidence,
not only in his profession, but in government and the very
ideal of justice itself." Professional Responsibility : Re-
port of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).
"The prosecuting attorney Is the attorney for the state,
and it is his primary duty not to convict but to see that
justice is done." ABA Opinion 150 (1936).
EC 7-15 The nature and purpose of proceedings
before administrative agencies vary widely. The
proceedings may be legislative or quasi-judicial,
or a combination of both. They may be ex parte
in character, in which event they may originate
either at the instance of the agency or upon mo-
tion of an interested party. The scope of an in-
quiry may be purely investigative or it may be
truly adversary looking toward the adjudication of
specific rights of a party or of classes of parties.
The foregoing are but examples of some of the
types of proceedings conducted by administrative
agencies. A lawyer appearing before an admin-
istrative agency,25  regardless of the nature of the
proceeding it is conducting, has the continuing
duty to advance the cause of his client within the
bounds of the law.26 Where the applicable rules
of the agency impose specific obligations upon a
lawyer, it is his duty to comply therewith, unless
the lawyer has a legitimate basis for challenging
the validity thereof. In all appearances before
administrative agencies, a lawyer should identify
himself, his client if identity of his client is not
privileged,27  and the representative nature of his
appearance. It is not improper, however, for a
lawyer to seek from an agency information avail-
able to the public without identifying his client.
EC 7-16 The primary business of a legislative
body is to enact laws rather than to adjudicate
controversies, although on occasion the activities
of a legislative body may take on the characteris-
tics of an adversary proceeding, particularly in in-
vestigative and impeachment matters. The role
of a lawyer supporting or opposing proposed legis-
lation normally is quite different from his role
in representing a person under investigation or on
trial by a legislative body. When a lawyer ap-
pears in connection with proposed legislation, he
seeks to affect the lawmaking process, but when
he appears on behalf of a client in investigatory
or impeachment proceedings, he is concerned with
the protection of the rights of his client. In ei-
ther event, he should identify himself and his
client, if identity of his client is not privileged,
and should comply with applicable laws and leg-
islative rules.28
EC 7-17 The obligation of loyalty to his client
applies only to a lawyer in the discharge of his
professional duties and implies no obligation to
adopt a personal viewpoint favorable to the in-
25 As to appearances before a department of government,
Canon 26 provides : "A lawyer openly . . . may render
professional services . . . in advocacy of claims be-
fore departments of government, upon the same principles
of ethics which justify his appearance before the Courts
26 "But as an advocate before a service which itself
represents the adversary point of view, where his client's
case is fairly arguable, a lawyer is under no duty to dis-
close its weaknesses, any more than he would be to make
such a disclosure to a brother lawyer. The limitations
within which he must operate are best expressed in Canon
22 . . . ." ABA Opinion 314 (1965).
27 See Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960).
28 See ABA Canon 26.
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CODE OF PROFESSIONAL RESPONSIBILITY
terests or desires of his client.29  While a lawyer
must act always with circumspection in order that
his conduct will not adversely affect the rights of
a client in a matter he is then handling, he may
take positions on public issues and espouse legal
reforms he favors without regard to the individual
views of any client.
EC 7-18 The legal system in its broadest sense
functions best when persons in need of legal ad-
vice or assistance are represented by their own
counsel. For this reason a lawyer should not com-
municate on the subject matter of the representa-
tion of his client with a person he knows to be
represented in the matter by a lawyer, unless pur-
suant to law or rule of court or unless he has the
consent of the lawyer for that person. 3° If one
is not represented by counsel, a lawyer represent-
ing another may have to deal directly with the
unrepresented person; in such an instance, a law-
yer should not undertake to give advice to the
person who is attempting to represent himself,31
except that he may advise him to obtain a lawyer.
Duty of the Lawyer to the Adversary System of
Justice
EC 7-19 Our legal system provides for the ad-
judication of disputes governed by the rules of
substantive, evidentiary, and procedural law. An
adversary presentation counters the natural hu-
man tendency to judge too swiftly in terms of the
familiar that which is not yet fully known; 32 the
advocate, by his zealous preparation and presenta-
tion of facts and law, enables the tribunal to come
to the hearing with an open and neutral mind and
to render impartial judgments.33 The duty of a
29 "Law should be so practiced that the lawyer re-
mains free to make up his own mind how he will vote,
what causes he will support, what economic and political
philosophy he will espouse. It is one of the glories of the
profession that it admits of this freedom. Distinguished
examples can be cited of lawyers whose views were at
variance from those of their clients, lawyers whose skill
and wisdom make them valued advisers to those who had
little sympathy with their views as citizens." Professional
Responsibility: Report of the Joint Conference, 44 A.B.
A.J. 1159, 1217 (1958).
"No doubt some tax lawyers feel constrained to abstain
from activities on behalf of a better tax system because
they think that their clients may object. Clients have no
right to object if the tax adviser handles their affairs
competently and faithfully and independently of his pri-
vate views as to tax policy. They buy his expert services,
not his private opinions or his silence on issues that grave-
ly affect the public interest." Paul, The Lawyer as a Tax
Adviser, 25 Rocky Mt.L.Rev. 412, 434 (1953).
30 See ABA Canon 9.
31 Id.
32 See Professional Responsibility: Report of the Joint
Conference, 44 A.B.A.J. 1159, 1160 (1958).
33 "Without the participation of someone who can act
responsibly for each of the parties, this essential narrow-
ing of the issues [by exchange of written pleadings or stip-
ulations of counsel] becomes impossible. But here again
the true significance of partisan advocacy lies deeper, touch-
ing once more the integrity of the adjudicative process it-
self. It is only through the advocate's participation that
the hearing may remain in fact what it purports to be in
lawyer to his client and his duty to the legal sys-
tem are the same: to represent his client zealous-
ly within the bounds of the law.34
EC 7-20 In order to function properly, our ad-
judicative process requires an informed, impartial
tribunal capable of administering justice prompt-
ly and efficiently 35 according to procedures that
command public confidence and respect.38 Not on-
ly must there be competent, adverse presentation
of evidence and issues, but a tribunal must be
aided by rules appropriate to an effective and dig-
nified process. The procedures under which tribu-
nals operate in our adversary system have been
prescribed largely by legislative enactments, court
rules and decisions, and administrative rules.
Through the years certain concepts of proper pro-
fessional conduct have become rules of law ap-
plicable to the adversary adjudicative process.
Many of these concepts are the bases for stand-
ards of professional conduct set forth in the Dis-
ciplinary Rules.
EC 7-21 The civil adjudicative process is pri-
marily designed for the settlement of disputes be-
tween parties, while the criminal process is de-
signed for the protection of society as a whole.
Threatening to use, or using, the criminal process
to coerce adjustment of private civil claims or con-
troversies is a subversion of that process; 37 fur-
ther, the person against whom the criminal proc-
ess is so misused may be deterred from asserting
his legal rights and thus the usefulness of the civil
process in settling private disputes is impaired.
As in all cases of abuse of judicial process, the im-
proper use of criminal process tends to diminish
public confidence in our legal system.
EC 7-22 Respect for judicial rulings is essential
to the proper administration of justice; however,
a litigant or his lawyer may, in good faith and
theory : a public trial of the facts and issues. Each ad-
vocate comes to the hearing prepared to present his proofs
and arguments, knowing at the same time that his argu-
ments may fail to persuade and that his proof may be re-
jected as inadequate. . . . The deciding tribunal, on
the other hand, comes to the hearing uncommitted. It
has not represented to the public that any fact can be
proved, that any argument is sound, or that any par-
ticular way of stating a litigant's case is the most effec-
tive expression of its merits." Professional Responsibility:
Report of the Joint Conference, 44 A.B.A.J. 1159, 1160-61
(1958).
34 Cf. ABA Canons 15 and 32.
35 Cf. ABA Canon 21.
36 See Professional Responsibility: Report of the Joint
Conference, 44 A.B.A.J. 1159, 1216 (1958).
37 "We are of the opinion that the letter in question
was improper, and that in writing and sending it respond-
ent was guilty of unprofessional conduct. This court has
heretofore expressed its disapproval of using threats of
criminal prosecution as a means of forcing settlement of
civil claims. . . .
"Respondent has been guilty of a violation of a principle
which condemns any confusion of threats of criminal
prosecution with the enforcement of civil claims. For this
misconduct he should be severely censured." Matter of
Gelman, 230 App.Div. 524, 527, 245 N.Y.S. 416, 419 (1930).
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CODE OF PROFESSIONAL RESPONSIBILITY
within the framework of the law, take steps to
test the correctness of a ruling of a tribunal.38
EC 7-23 The complexity of law often makes it
difficult for a tribunal to be fully informed unless
the pertinent law is presented by the lawyers in
the cause. A tribunal that is fully informed on
the applicable law is better able to make a fair
and accurate determination of the matter before
it. The adversary system contemplates that each
lawyer will present and argue the existing law
in the light most favorable to his client.39  Where
a lawyer knows of legal authority in the control-
ling jurisdiction directly adverse to the position of
his client, he should inform the tribunal of its ex-
istence unless his adversary has done so; but, hav-
ing made such disclosure, he may challenge its
soundness in whole or in part.4°
EC 7-24 In order to bring about just and in-
formed decisions, evidentiary and procedural rules
have been established by tribunals to permit the
inclusion of relevant evidence and argument and
the exclusion of all other considerations. The ex-
pression by a lawyer of his personal opinion as
to the justness of a cause, as to the credibility of
a witness, as to the culpability of a civil litigant,
or as to the guilt or innocence of an accused is not
a proper subject for argument to the trier of
fact.41  It is improper as to factual matters be-
cause admissible evidence possessed by a lawyer
should be presented only as sworn testimony. It
is improper as to all other matters because, were
the rules otherwise, the silence of a lawyer on
a given occasion could be construed unfavorably
to his client. However, a lawyer may argue, on
his analysis of the evidence, for any position or
38 "An attorney has the duty to protect the interests of
his client. He has a right to press legitimate argument
and to protest an erroneous ruling." Gallagher v. Munici-
pal Court, 31 Ca1.2d 784, 796, 192 P.2d 905, 913 (1948).
"There must be protection, however, in the far more
frequent case of the attorney who stands on his rights and
combats the order in good faith and without disrespect
believing with good cause that it is void, for it is here
that the independence of the bar becomes valuable." Note,
39 Colum.L.Rev. 433, 438 (1939).
39 "Too many do not understand that accomplishment
of the layman's abstract ideas of justice is the function of
the judge and jury, and that it is the lawyer's sworn duty
to portray his client's case in its most favorable light."
Rochelle and Payne, The Struggle for Public Understand-
ing, 25 Texas B.J. 109, 159 (1962).
40 "We are of the opinion that this Canon requires the
lawyer to disclose such decisions [that are adverse to his
client's contentions] to the court. He may, of course, aft-
er doing so, challenge the soundness of the decisions or
present reasons which he believes would warrant the court
in not following them in the pending case." ABA Opinion
146 (1935).
Cf. ABA Opinion 280 (1949) and Thode, The Ethical
Standard for the Advocate, 39 Texas L. Rev. 575, 585-86
(1961).
41 See ABA Canon 15.
"The traditional duty of an advocate is that he honor-
ably uphold the contentions of his client. He should not
voluntarily undermine them." Harders v. State of Cali-
fornia, 373 F.2d 839, 842 (9th Cir. 1967).
conclusion with respect to any of the foregoing
matters.
EC 7-25 Rules of evidence and procedure are de-
signed to lead to just decisions and are part of
the framework of the law. Thus while a lawyer
may take steps in good faith and within the frame-
work of the law to test the validity of rules, he is
not justified in consciously violating such rules
and he should be diligent in his efforts to guard
against his unintentional violation of them.42  As
examples, a lawyer should subscribe to or verify
only those pleadings that he believes are in com-
pliance with applicable law and rules; a lawyer
should not make any prefatory statement before
a tribunal in regard to the purported facts of the
case on trial unless he believes that his statement
will be supported by admissible evidence; a law-
yer should not ask a witness a question solely for
the purpose of harassing or embarrassing him*,
and a lawyer should not by subterfuge put be-
fore a jury matters which it cannot properly con-
sider.
EC 7-26 The law and Disciplinary Rules prohibit
the use of fraudulent, false, or perjured testimony
or evidence.43  A lawyer who knowingly 44 par-
ticipates in introduction of such testimony or evi-
dence is subject to discipline. A lawyer should,
however, present any admissible evidence his client
desires to have presented unless he knows, or from
facts within his knowledge should know, that such
testimony or evidence is false, fraudulent, or per-
j ured.45
EC 7-27 Because it interferes with the proper ad-
ministration of justice, a lawyer should not sup-
press evidence that he or his client has a legal ob-
ligation to reveal or produce. In like manner, a
lawyer should not advise or cause a person to
secrete himself or to leave the jurisdiction of a
tribunal for the purpose of making him unavail-
able as a witness therein.46
EC 7-28 Witnesses should always testify truth-
fully 47 and should be free from any financial in-
ducements that might tempt them to do other-
42 See ABA Canon 22.
43 Id. Cf. ABA Canon 41.
44 See generally ABA Opinion 287 (1953) as to a lawyer's
duty when he unknowingly participates in introducing
perjured testimony.
45 "Under any standard of proper ethical conduct an
attorney should not sit by silently and permit his client
to commit what may have been perjury, and which cer-
tainly would mislead the court and the opposing party on
a matter vital to the issue under consideration. .
"Respondent next urges that it was his duty to observe
the utmost good faith toward his client, and therefore he
could not divulge any confidential information. This duty
to the client of course does not extend to the point of
authorizing collaboration with him in the commission of
fraud." In re Carroll, 244 S.W.2d 474, 474-75 (Ky. 1951).
46 See ABA Canon 5; cf. ABA Opinion 131 (1935).
47 Cf. ABA Canon 39.
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CODE OF PROFESSIONAL RESPONSIBILITY
wise.48
 A lawyer should not pay or agree to pay
a non-expert witness an amount in excess of re-
imbursement for expenses and financial loss in-
cident to his being a witness; however, a lawyer
may pay or agree to pay an expert witness a rea-
sonable fee for his services as an expert. But in
no event should a lawyer pay or agree to pay a
contingent fee to any witness. A lawyer should
exercise reasonable diligence to see that his client
and lay associates conform to these standards.49
EC 7-29 To safeguard the impartiality that is
essential to the judicial process, veniremen and
jurors should be protected against extraneous in-
fluences.50 When impartiality is present, public
confidence in the judicial system is enhanced.
There should be no extrajudicial communication
with veniremen prior to trial or with jurors during
trial by or on behalf of a lawyer connected with
the case. Furthermore, a lawyer who is not con-
nected with the case should not communicate with
or cause another to communicate with a venire-
man or a juror about the case. After the trial,
communication by a lawyer with jurors is per-
mitted so long as he refrains from asking ques-
tions or making comments that tend to harass
or embarrass the juror 51 or to influence actions
of the juror in future cases. Were a lawyer to be
prohibited from communicating after trial with a
juror, he could not ascertain if the verdict might
be subject to legal challenge, in which event the
invalidity of a verdict might go undetected.52 When
an extrajudicial communication by a lawyer with
a juror is permitted by law, it should be made
considerately and with deference to the personal
feelings of the juror.
EC 7-30 Vexatious or harassing investigations of
veniremen or jurors seriously impair the effective-
ness of our jury system. For this reason, a law-
yer or anyone on his behalf who conducts an in-
vestigation of veniremen or jurors should act with
circumspection and restraint.
EC 7-31 Communications with or investigations
of members of families of veniremen or jurors by
a lawyer or by anyone on his behalf are subject
to the restrictions imposed upon the lawyer with
respect to his communications with or investiga-
tions of veniremen and jurors.
EC 7-32 Because of his duty to aid in preserving
the integrity of the jury system, a lawyer who
learns of improper conduct by or towards a venire-
man, a juror, or a member of the family of either
should make a prompt report to the court regard-
ing such conduct.
EC 7-33 A goal of our legal system is that each
party shall have his case, criminal or civil, ad-
judicated by an impartial tribunal. The attain-
ment of this goal may be defeated by dissemina-
tion of news or comments which tend to influence
judge or jury. 53  Such news or comments may
48 "The prevalence of perjury is a serious menace to the
administration of justice, to prevent which no means have
as yet been satisfactorily devised. But there certainly can
be no greater incentive to perjury than to allow a party
to make payments to its opponents witnesses under any
guise or on any excuse, and at least attorneys who are of-
ficers of the court to aid it in the administration of jus-
tice, must keep themselves clear of any connection which
in the slightest degree tends to induce witnesses to testi-
fy in favor of their clients." In re Robinson, 151 App.Div.
589, 600, 136 N.Y.S. 548, 556-57 (1912), aff'd, 209 N.Y. 354,
103 N.E. 160 (1913).
49 "It will not do for an attorney who seeks to justify
himself against charges of this kind to show that he has
escaped criminal responsibility under the Penal Law, nor
can he blindly shut his eyes to a system which tends to
suborn witnesses, to produce perjured testimony, and to
suppress the truth. He has an active affirmative duty to
protect the administration of justice from perjury and
fraud, and that duty is not performed by allowing his
subordinates and assistants to attempt to subvert justice
and procure results for his clients based upon false testi-
mony and perjured witnesses." Id., 151 App.Div. at 592,
136 N.Y.S. at 551.
50 See ABA Canon 23.
51 "[I] t is unfair to jurors to permit a disappointed liti-
gant to pick over their private associations in search of
something to discredit them and their verdict. And it
would be unfair to the public too if jurors should under-
stand that they cannot convict a man of means without
risking an inquiry of that kind by paid investigators, with,
to boot, the distortions an inquiry of that kind can pro-
duce." State v. LaFera, 42 N.J. 97, 107, 199 A.2d 630, 636
(1964).
52 ABA Opinion 319 (1968) points out that "[m]any courts
today, and the trend is in this direction, allow the testi-
mony of jurors as to all irregularities in and out of the
courtroom except those irregularities whose existence can
be determined only by exploring the consciousness of a
single particular juror, New Jersey v. Kociolek, 20 N.J. 92,
118 A.2d 812 (1955). Model Code of Evidence Rule 301.
Certainly as to states in which the testimony and affidavits
of jurors may be received in support of or against a mo-
tion for new trial, a lawyer, in his obligation to protect
his client, must have the tools for ascertaining whether
or not grounds for a new trial exist and it is not unethical
for him to talk to and question jurors."
53 Generally see ABA Advisory Committee on Fair Trial
and Free Press, Standards Relating to Fair Trial and
Free Press (1966).
"[T]he trial court might well have proscribed extra-
judicial statements by any lawyer, party, witness, or court
official which divulged prejudicial matters . .  See
State v. Van Dwyne, 43 N.J. 369, 389, 204 A.2d 841, 852
(1964), in which the court interpreted Canon 20 of the
American Bar Association's Canons of Professional Ethics
to prohibit such statements. Being advised of the great
public interest in the case, the mass coverage of the press,
and the potential prejudicial impact of publicity, the
court could also have requested the appropriate city and
county officials to promulgate a regulation with respect
to dissemination of information about the case by their
employees. In addition, reporters who wrote or broad-
cast prejudicial stories, could have been warned as to the
impropriety of publishing material not introduced in the
proceedings. . . . In this manner, Sheppard's right
to a trial free from outside interference would have been
given added protection without corresponding curtailment
of the news media. Had the judge, the other officers of
the court, and the police placed the interest of justice first,
the news media would have soon learned to be content
with the task of reporting the case as it unfolded in the
courtroom—not pieced together from extrajudicial state-
ments." Sheppard v. Maxwell, 384 U.S. 333, 361-62, 16 L.
E.2d 600, 619-20, 86 S.Ct. 1507, 1521-22 (1966).
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CANONS OF JUDICIAL ETHICS *
With Amendments to January 1, 1968
Ancient Precedents.
"And I charged your judges at that time, say-
ing Hear the causes between your brethren, and
judge righteously between every man and his
brother, and the stranger that is with him.
"Ye shall not respect persons in judgment; but
ye shall hear the small as well as the great; ye
shall not be afraid of the face of man; for the
judgment is God's; and the cause that is too hard
for you, bring it unto me, and I wil hear it"—
Deuteronomy, I, 16-17.
"Thou shalt not wrest judgment; thou shat
not respect persons, neither take a gift; for a
gift doth blind the eyes of the wise, and pervert
the words of the righteous."—Deuteronomy, XVI,
19.
"We will not make any justiciaries, constables,
sheriffs or bailiffs, but from those who understand
the law of the realm and are well disposed to ob-
serve it."—Magna Charta, XLV.
"Judges ought to remember that their office is
jus dicere not jus dare; to interpret law, and not
to make law, or give law." .
"Judges ought to be more learned than witty;
more reve-end than plausible; and more advised
than confident. Above all things, integrity is their
portion and proper virtue." . .
"Patience and gravity of hearing is an essential
part of justice; and an over speaking judge is no
well-tuned cymbal. It is no grace to a judge first
to find that which he might have heard in due
time from the Bar, or to show quickness of con-
ceit in cutting off evidence or counsel too short;
or to prevent information by questions though
pertinent."
"The place of justice is a hallowed place; and
therefore not only the Bench, but the foot pare
and precincts and purprise thereof ought to be
preserved without scandal and corruption." .
—Bacon's Essay "Of Judicature."
Preamble.
In addition to the Canons for Professional Con-
duct of Lawyers which it has formulated and
adopted, the American Bar Association, mindful
* These Canons, to and including Canon 34, were adopted by
the American Bar Association at its Forty-S-venth Annual
Meeting, at Philadelphia, Pennsylvania, on July 9. 1924. The
Committee of the Association which prepared the Canons was
appointed in 1922, and composed of the following : William H.
Taft, District of Columbia, Chairman ; Leslie C. Cornish,
Maine; Robert von Moschzisker, Pennsylvania ; Charles A.
Boston. New York ; and Garret W. McEnerney, California.
George Sutherland, of Utah, originally a member of the Cum-
mittee, retired and was succeeded by Mr. McEnerney. In 1923,
Frank M. Angellotti, of California, took the place .of Mr.
McEnerney.
Canons 28 and 30 were amended at the Fifty-Sixth Annual
Meeting, Grand Rapids, Michigan, August 30-September 1, 1933
Canon 28 was further amended at the Seventy-Third Annual'
Meeting, Washington, D. C., September 20. 1950. Canons 35
and 36 were adopted at the Sixtieth Annual Meeting, at Kansas
City, Missouri, September 30. 1937. Canon 35 was amended at
San Francisco. Calif., Sept. 1952.
that the character and conduct of a judge should
never be objects of indifference, and that declared
ethical standards tend to become habits of life,
deems it desirable to set forth its views respecting
those principles which should govern the personal
practice of members of the judiciary in the admin-
istration of their office. The Association accord-
ingly adopts the following Canons, the spirit of
which it suggests as a proper guide and reminder
for judges, and as indicating what the people
have a right to expect from them.
1. Relations of the Judiciary.
The assumption of the office of judge casts
upon the incumbent duties in respect to his person-
al conduct which concern his relation to the state
and its inhabit'nts, the litigants before him, the
principles of law, the practitioners of law in his
court, and the witnesses, jurors and attendants
who aid him in the administration of its func-
tions.
2. The Public Interest.
Courts exist to promote justice, and thus to
serve the public interest. Their administration
should be speedy and careful. Every judge should
at all times be alert in his rulings and in the con-
duct of the business of the court, so far as he can,
to make it useful to litigants and to the commu-
nity. He should avoid unconsciously falling into
the attitude of mind that the litigants are made
for the courts instead of the courts for the liti-
gants.
3. Constitutional Obligations.
It is the duty of all judges in the United States
to support the federal Constitution and that of
the state whose laws they administer; in so do-
ing, they should fearlessly observe and apply
fundamental limitations and guarantees.
4. Avoidance of Impropriety.
A judge's official conduct should be free from
impropriety and the appearance of impropriety;
he should avoid infractions of law; and his per-
sonal behavior, not only upon the Bench and in the
performance of judicial duties, but also in his
everyday life, should be beyond reproach.
5. Essential Conduct.
A judge should be temperate, attentive, patient,
impartial, and, since he is to administer the law
and apply it to the facts, he should be studious of
the principles of the law and diligent in endeavor-
ing to ascertain the facts.
6. Industry.
A judge should exhibit an industry and applica-
tion commensurate with the duties imposed upon
him.
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CANONS OF JUDICIAL ETHICS
7. Promptness.
A judge should be prompt in the performance
of his judicial duties, recognizing that the time
of litigants, jurors and attorneys is of value and
that habitual lack of punctuality on his part justi-
fies dissatisfaction with the administration of the
business of the court.
8. Court Organization.
A judge should organize the court with a view
to the prompt and convenient dispatch of its busi-
ness and he should not tolerate abuses and neglect
by clerks, and other assistants who are sometimes
prone to presume too much upon his good natured
acquiescence by reason of friendly association
with him.
It is desirable too, where the judicial system
permits, that he should cooperate with other
judges of the same court, and in other courts, as
members of a single judicial system, to promote
the more satisfactory administration of justice.
9. Consideration for Jurors and Others.
A judge should be considerate of jurors, wit-
nesses and others in attendance upon the court.
10. Courtesy and Civility.
A judge should be courteous to counsel, espe-
cially to those who are young and inexperienced,
and also to all others appearing or concerned in
the administration of justice in the court.
He should also require, and so far as his power
extends, enforce on the part of clerks, court offi-
cers and counsel civility and courtesy to the court
and to jurors, witnesses, litigants and others hav-
ing business in the court.
11. Unprofessional Conduct of Attorneys and
Counsel.
A judge should utilize his opportunities to criti-
cise and correct unprofessional conduct of attor,
neys and counsellors, brought to his attention;
and, if adverse comment is not a sufficient correc-
tive, should send the matter at once to the proper
investigating and disciplinary authorities.
12. Appointees of the Judiciary and Their Com-
pensation.
Trustees, receivers, masters, referees, guardi-
ans and other persons appointed by a judge to
aid in the administration of justice should have
the strictest probity and impartiality and should be
selected with a view solely to their character and
fitness. The power of making such appointments
should not be exercised by him for personal or par-
tisan advantage. He should not permit his ap-
pointments to be controlled by others than himself.
He should also avoid nepotism and undue favori-
tism in his appointments.
While not hesitating to fix or approve just
amounts, he should be most scrupulous in granting
Or approving compensation for the services or
charges of such appointees to avoid excessive al-
lowances, whether or not excepted to or complained
of. He cannot rid himself of this responsibility by
the consent of counsel.
13. Kinship or Influence.
A judge should not act in a controversy where
a near relative is a party; he should not suffer
his conduct to justify the impression that any
person can improperly influence him or unduly en-
joy his favor, or that he is affected by the kin-
ship, rank, position or influence of any party or
other person.
14. Independence.
A judge should not be swayed by partisan de-
mands, public clamor or considerations of personal
popularity or notoriety, nor be apprehensive of
unjust criticism.
15. Interference in Conduct of Trial. '
A judge may properly intervene in a trial of
a case to promote expedition, and prevent unneces-
sary waste of time, or to clear up some obscurity,
but he should bear in mind that his undue inter-
ference, impatience, or participation in the ex-
amination of witnesses, or a severe attitude on his
part toward witnesses, especially those who are
excited or terrified by the unusual circumstances
of a trial, may tend to prevent the proper presen-
tation of the cause, or the ascertainment of the
truth in respect thereto.
Conversation between the judge and counsel in
court is often necessary, but the judge should be
studious to avoid controversies which are apt to
obscure the merits of the dispute between liti-
gants and lead to its unjust disposition. In ad-
dressing counsel, litigants, or witnesses, he should
avoid a controversial manner or tone.
He should avoid interruptions of counsel in their
arguments except to clarify his mind as to their
positions, and he should not be tempted to the un-
necessary display of learning or a premature judg-
ment.
16. Ex parte Applications.
A judge should discourage ex parte hearings
of applications for injunctions and receiverships
where the order may work detriment to absent
parties; he should act upon such ex parte ap-
plications only where the necessity for quick
action is clearly shown; if this be demonstrated,
then he should endeavor to counteract the effect
of the absence of opposing counsel by a scrupu-
lous cross-examination and investigation as to
the facts and the principles of law on which the
application is based, granting relief only when
fully satisfied that the law permits it and the
emergency demands it. He should remember
that an injunction is a limitation upon the free-
dom of action of defendants and should not be
granted lightly or inadvisedly. One applying for
such relief must sustain the burden of showing
clearly its necessity and this burden is increased
in the absence of the party whose freedom of ac-
tion is sought to be restrained even though only
temporarily.
17. Ex parte Communications.
A judge should not permit private interviews,
arguments or communications designed to in-
fluence his judicial action, where interests to
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CANONS OF JUDICIAL ETHICS
be affected thereby are not represented before
him, except in cases where provision is made by
law for ex parte application.
While the conditions under which briefs of
argument are to be received are largely matters
of local rule or practice, he should not permit the
contents of such brief presented to him to be con-
cealed from opposing counsel. Ordinarily all com-
munications of counsel to the judge intended or
calculated to influence action should be made
known to opposing counsel.
18. Continuances.
Delay in the administration of justice is a com-
mon cause of complaint; counsel are frequently
responsible for this delay. A judge, without be-
ing arbitrary or forcing cases unreasonably or un-
justly to trial when unprepared, to the detriment
of parties, may well endeavor to hold counsel to
a proper appreciation of their duties to the public
interest, to their own clients, and to the adverse
party and his counsel, so as to enforce due dili-
gence in the dispatch of business before the court.
19. Judicial Opinions.
In disposing of controverted cases, a judge
should indicate the reasons for his action in an
opinion showing that he has not disregarded or
overlooked serious arguments of counsel. He
thus shows his full understanding of the case,
avoids the suspicion of arbitrary conclusion, pro-
motes confidence in his intellectual integrity and
may contribute useful precedent to the growth of
the law.
It is desirable that Courts of Appeals in revers-
ing cases and granting new trials should so indi-
cate their views on questions of law argued before
them and necessarily arising in the controversy
that upon the new trial counsel may be aided to
avoid the repetition of erroneous positions of law
and shall not be left in doubt by the failure of the
court to decide such questions.
But the volume of reported decisions is such
and is so rapidly increasing that in writing opin-
ions which are to be published judges may well
take this fact into consideration, and curtail them
accordingly, without substantially departing from
the principles stated above.
It is of high importance that judges constituting
a court of last resort should use effort and self-
restraint to promote solidarity of conclusion and
the consequent influence of judicial decision. A
judge should not yield to pride of opinion or value
more highly his individual reputation than that
of the court to which he should be loyal. Ex-
cept in case of conscientious difference of opinion
on fundamental principle, dissenting opinions
should be discouraged in courts of last resort.
20. Influence of Decisions Upon the Development
of the Law.
A judge should be mindful that his duty is the
application of general law to particular instances,
that ours is a government of law and not of men,
and that he violates his duty as a minister of jus-
tice under such a system if he seeks to do what
he may personally consider substantial justice in
a particular case and disregards the general law
as he knows it to be binding on him. Such ac-
tion may become a precedent unsettling accept-
ed principles and may have detrimental conse-
quences beyond the immediate controversy. He
should administer his office with a due regard to
the integrity of the system of the law itself, remem-
bering that he is not a depositary of arbitrary pow-
er, but a judge under the sanction of law.
21. Idiosyncrasies and Inconsistencies.
Justice should not be moulded by the individual
idiosyncrasies of those who administer it. A judge
should adopt the usual and expected method of
doing justice, and not seek to be extreme or pe-
culiar in his judgments, or spectacular or sensa-
tional in the conduct of the court. Though vested
with discretion in the imposition of mild or severe
sentences he should not compel persons brought
before him to submit to some humiliating act or
discipline of his own devising, without authority of
law, because he thinks it will have a beneficial cor-
rective influence.
In imposing sentence he should endeavor to con-
form to a reasonable standard of punishment and
should not seek popularity or publicity either by
exceptional severity or undue leniency.
22. Review.
In order that a litigant may secure the full bene-
fit of the right of review accorded to him by law,
a trial judge should scrupulously grant to the de-
feated party opportunity to present the questions
arising upon the trial exactly as they arose, were
presented, and decided, by full and fair bill of ex-
ceptions or otherwise; any failure in this regard
on the part of the judge is peculiarly worthy of
condemnation because the wrong done may be ir-
remediable.
23. Legislation.
A judge has exceptional opportunity to observe
the operation of statutes, especially those relating
to practice, and to ascertain whether they tend to
impede the just disposition of controversies; and
he may well contribute to the public interest by ad-
vising those having authority to remedy defects of
procedure, of the result of his observation and ex-
perience.
24. Inconsistent Obligations.
A judge should not accept inconsistent duties;
nor incur obligations, pecuniary or otherwise,
which will in any way interfere or appear to in-
terfere with his devotion to the expeditious and
proper administration of his official functions.
25. Business Promotions and Solicitations for
Charity.
A judge should avoid giving ground for any rea-
sonable suspicion that he is utilizing the power or
prestige of his office to persuade or coerce others
to patronize or contribute, either to the success of
private business ventures, or to charitable enter-
prises. He should, therefore, not enter into such
private business, or pursue such a course of con-
duct, as would justify such suspicion, nor use the
power of his office or the influence of his name to
promote the business interests of others; he should
not solicit for charities, nor should he enter into
any business relation which, in the normal course
of events reasonably to be expected, might bring his
personal interest into conflict with the impartial
performance of his official duties.
I,XX I

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CANONS OF JUDICIAL ETHICS
26. Personal Investments and Relations.
A judge should abstain from making personal
investments in enterprises which are apt to be in-
volved in litigation in the court; and, after his
accession to the Bench, he should not retain such
investments previously made, longer than a pe-
riod sufficient to enable him to dispose of them
without serious loss. It is desirable that he should,
so far as reasonably possible, refrain from all rela-
tions which would normally tend to arouse the sus-
picion that such relations warp or bias his judg-
ment, or prevent his impartial attitude of mind in
the administration of his judicial duties.
He should not utilize information coming to him
in a judicial capacity for purposes of speculation;
and it detracts from the public confidence in his
integrity and the soundness of his judicial judg-
ment for him at any time to become a speculative
investor upon the hazard of a margin.
27. Executorships and Trusteeships.
While a judge is not disqualified from holding
executorships or trusteeships, he should not ac-
cept or continue to hold any fiduciary or other po-
sition if the holding of it would interfere or seem
to interfere with the proper performance of his
judicial duties, or if the business interests of those
represented require investments in enterprises
that are apt to come before him judicially, or to
be involved in questions of law to be determined
by him.
28. Partisan Politics.*
While entitled to entertain his personal views
of political questions, and while not required to
surrender his rights or opinions as a citizen, it is
inevitable that suspicion of being warped by polit-
ical bias will attach to a judge who becomes the
active promoter of the interests of one political
party as against another. He should avoid making
political speeches, making or soliciting payment of
assessments or contributions to party funds, the
public endorsement of candidates for political of-
fice and participation in party conventions.
He should neither accept nor retain a place on
any party committee nor act as party leader, nor
engage generally in partisan activities.
Where, however, it is necessary for judges to be
nominated and elected as candidates of a political
party, nothing herein contained shall prevent the
judge from attending or speaking at political gath-
erings, or from making contributions to the cam-
paign funds of the party that has nominated him
and seeks his election or re-election.
the impression that if chosen, he will administer
his office with bias, partiality or improper discrim-
ination.
While holding a judicial position he should not
become an active candidate either at a party pri-
mary or at a general election for any office other
than a judicial office. If a judge should decide to
become a candidate for any office not judicial, he
should resign in order that it cannot be said that
he is using the power or prestige of his judicial po-
sition to promote his own candidacy or the success
of his party.
If a judge becomes a candidate for any judicial
office, he should refrain from all conduct which
might tend to arouse reasonable suspicion that he
is using the power or prestige of his judicial posi-
tion to promote his candidacy or the success of his
party.
He should not permit others to do anything in
behalf of his candidacy which would reasonably
lead to such suspicion.
31. Private Law Practice.
In many states the practice of law by one hold-
ing judicial position is forbidden. In superior
courts of general jurisdiction, it should never be
permitted. In inferior courts in some states, it is
permitted because the county or municipality is
not able to pay adequate living compensation for
a competent judge. In such cases one who prac-
tises law is in a position of great delicacy and must
be scrupulously careful to avoid conduct in his
practice whereby he utilizes or seems to utilize his
judicial position to further his professional success.
He should not practise in the court in which he
is a judge, even when presided over by another
judge, or appear therein for himself in any con-
troversy.
If forbidden to practise law, he should refrain
from accepting any professional employment while
in office.
He may properly act as arbitrator or lecture up-
on or instruct in law, or write upon the subject,
and accept compensation therefor, if such course
does not interfere with the due performance of his
judicial duties, and is not forbidden by some posi-
tive provision of law.
32. Gifts and Favors.
A judge should not accept any presents or favors
from litigants, or from lawyers practising before
him or from others whose interests are likely to
be submitted to him for judgment.
33. Social Relations.
It is not necessary to the proper performance
of judicial duty that a judge should live in retire-
ment or seclusion; it is desirable that, so far as
reasonable attention to the completion of his work
will permit, he continue to mingle in social inter-
course and that he should not discontinue his in-
terest in or appearance at meetings of members of
the Bar. He should, however, in pending or pros-
pective litigation before him be particularly care-
ful to avoid such action as may reasonably tend
to awaken the suspicion that his social or business
relations or friendships constitute an element in in-
fluencing his judicial conduct.
34. A Summary of Judicial Obligation.
In every particular his conduct should be above
reproach. He should be conscientious, studious,
thorough, courteous, patient, punctual, just, im-
partial, fearless of public clamor, regardless of
LXXII
29. Self-Interest.
A judge should abstain from performing or tak-
ing part in any judicial act in which his personal
interests are involved. If he has personal litiga-
tion in the court of which he is judge, he need not
resign his judgeship on that account, but he
should, of course, refrain from any judicial act
in such a controversy.
30. Candidacy for Office.**
A candidate for judicial position should not make
or suffer others to make for him, promises of con-
duct in office which appeal to the cupidity or preju-
dices of the appointing or electing power; he
should not announce in advance his conclusions of
law on disputed issues to secure class support, and
he should do nothing while a candidate to create
As amended August 31, 1933 and September 20, 1950.
** As amended August 31, 1933.

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CANONS OF JUDICIAL ETHICS
public praise, and indifferent to private political
or partisan influences; he should administer jus-
tice according to law, and deal with his appoint-
ments as a public trust; he should not allow other
affairs or his private interests to interfere with
the prompt and proper performance of his judicial
duties, nor should he administer the office for the
purpose of advancing his personal ambitions or
increasing his popularity.
35. Improper Publicizing of Court Proceedings.*
Proceedings in court should be conducted with
fitting dignity and decorum. The taking of photo
graphs in the court room, during sessions of the
court or recesses between sessions, and the broad-
casting or televising of court proceedings detract
from the essential dignity of the proceedings, dis-
tract participants and witnesses in giving testi-
mony, and create misconceptions with respect
thereto in the mind of the public and should not
be permitted.
* Adopted September 30, 1937 ; amended September 15, 1952
and February 5, 1963.
Provided that this restriction shall not apply to
the broadcasting or televising, under the super-
vision of the court, of such portions of naturaliza-
tion proceedings (other than the interrogation of
applicants) as are designed and carried out ex-
clusively as a ceremony for the purpose of publicly
demonstrating in an impressive manner the es-
sential dignity and the serious nature of naturali-
zation.
36. Conduct of Court Proceedings.*
Proceedings in court should be so conducted as
to reflect the importance and seriousness of the
inquiry to ascertain the truth.
The oath should be administered to witnesses
in a manner calculated to impress them with the
importance and solemnity of their promise to ad-
here to the truth. Each witness should be sworn
separately and impressively at the bar or the court,
and the clerk should be required to make a formal
record of the administration of the oath, including
the name of the witness.
* Adopted September 30, 1937.
I,XXII I

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LXXX t

PDF page 77

BLACK'S
DICTIONARY OF LAW
FOURTH EDITION
A. The first letter in the English and most other
alphabets derived from the Roman or Latin al-
phabet, which was one of several ancient Italian
alphabets derived from the Greek, which was an
adaptation of the Phoenician. The first letter in
the Phoenician alphabet was called aleph, mean-
ing "ox", which is also the meaning of the first
letter in the Greek alphabet, alpha.
Alpha and the second letter of the Greek alpha-
bet, beta, were combined to form "alphabet,"
which is largely the same in different languages.
In Danish, Dutch, Polish and Swedish alfabet;
in English, German and French, alphabet; in
Italian, Portuguese and Spanish, alfabeto; in
Russian, alfabetli, etc. This striking similarity
shows borrowing, either mediately or immediate-
ly, from the same source.
A has several different forms, the most curious
of which is little a and big A. All of our letters
were first capitals, and remained so for a long
time. Then small letters alone were used for
centuries. Later capitals were used with small
letters, largely for ornamental purposes. The an-
cient Egyptians had twenty a's to choose from,
and it is said that a is the initial letter of about
one-seventh of all Armenian words.
Nundinal Letters
A is also the first of the nundinal letters con-
sisting of the first eight letters of the alphabet.
These letters were repeated successively from the
first to the last day of the year by the Romans
and every ninth day was market day, when the
country people came into the city to buy and sell
and to attend to their private or religious affairs.
However, no market day could coincide with the
first day of January or the ninth day of the other
months. The first market day of the year fell
eight days from the preceding market day, which
Black's Law Dictionary Revised 4th Ed.-1 1
made the nundinal letter change every year, but
if the nundinal letter for a given year was, for
example, A, the market day always coincided with
A, which was the ninth day from the preceding
market day, both inclusive. No judgment could
be pronounced, nor assemblies of the people held,
on these days, but this was changed by the lex
Hortensia in 246 B.C. Proposed laws were post-
ed, and a vote could not be taken until three Ro-
man weeks (trinum nundinum), or 24 days, had
elapsed. A judgment debtor had 30 days to sat-
isfy judgment against him. If he failed to do so,
he was seized and taken before the magistrate
and if he could find no surety he was put in
chains and held by the judgment creditor for 60
days, during which time the amount of his debt
was proclaimed on three successive market days,
and then if he failed, the XII Tables provided:
"* * * Tertiis nundinus partis secanto; si plus
minusive secuerint, se fraude esto."  (On the
third market day let him be cut into pieces; if
any one [any creditor] cut more or less than his
share, it shall not be a crime). Shylock, it will be
remembered, had to cut just a pound of flesh
and no more.
Dominical or Sunday Letters
A is also the first of the Dominical or Sunday
letters, consisting of the first seven letters of the
alphabet, which were introduced to replace the
nundinal letters of the Romans. These letters,
repeated successively from the first to the last day
of the year, show the order of Sundays according
to the Christian calendar. If the first day of
January is on Sunday, all the rest of the days des-
ignated by A will also be Sundays. Since each
common year ends on the same day of the week
that it begins, the dominical letters change each
year in retrogression. If the year is a leap year
an adjustment is made either on the 25th or 29th

PDF page 78

of February. The dominical letters are used to
determine the date of Easter but may also be used
to determine the day of the week on which a
given date falls in any year.
A as Symbol
Both as a symbol and as an abbreviation, A is
used in every phase of human activity and learn-
ing. In law, commerce, manufacturing, engineer-
ing, printing, music, medicine, geometry, mathe-
matics, physics, chemistry, logic, philosophy, aero-
nautics, artillery, etc., these devices, which are
meaningless to the unitiated, simply could not be
dispensed with. The Puritans first burned A on
the forehead of the adulterer,—or at least on that
of the adulteress!—and later fastened it on the
sinner's clothing. The Roman judges used three
wax-covered wooden tables. On one was in-
scribed A for Absolvo (I acquit) ; on the second
C for Condemn° (I condemn), and on the third
N. L. for Non liquet (It is not clear). When a
proposed law was to be voted on, Roman voters
received two tablets, on one of which was in-
scribed A for antiquo (for the old law), and on
the other U. R. for Uti rogas (as you ask). A is
also the first of the letters employed by the Se-
mites and the ancient Greeks as numeral signs.
If the Greek a was accented above, it stood for 1;
if below, it stood for 1000. The Romans also used
A as a numeral sign before they adopted the let-
ter D. If A was not accented, it stood for 500,
but if accented thus, A, it stood for 5000.
The symbol is a graphic modification of the
Latin ad, meaning "at" or "to". Some European
railroads use A to designate first class railroad
coaches. In European tourist guides A is used
to designate places where there are hotels able
to satisfy the wants of motorists. Mercantile
agencies use A to indicate the highest commercial
credit. A is also the highest mark given by teach-
ers to pupils. Ship registries in United States,
England, Germany and Norway use A to indicate
the highest class of vessel.
In the record of American Shipping Al stands
for a first-class vessel of the highest seaworthi-
ness, the lower degrees being expressed by Al 1/2,
etc., A3 being the lowest. In Lloyd's Register
Al means a first-class vessel. A printed in red
means an over-aged vessel. ZE a third-class ves-
sel. The broad A means an iron ship. The de-
scription of a ship as "Al" amounts to a war-
ranty. 011ive v. Booker, 1 Exch. 423.
In ceramics A has various meanings. On fine
old Sevres A alone shows that the piece was made
in 1753, whereas AA shows that it was made in
1777. A is also used as a brand by certain breed-
ers of bulls for the bull ring, as well as by manu-
facturers of fine Toledo swords. A denotes the
first of a series, and is used to distinguish the
first page of a folio from the second, which is
marked b (Coke, Litt. 114a, 114b), as well as the
first foot-note and the first section or subsection
in statutes. It is also the name of the sixth note
of the natural diatonic scale of C, or the first note
of the relative minor scale. To this note all or-
chestral instruments are tuned. A also indicates
the key in which many great pieces of music are
composed. The money coined at the Paris mint
is marked with an A, and it was long supposed
that such coinage was superior to that of the pro-
vincial mints. This gave rise to the phrase Etre
marque a l'A (to be marked with an A) and was
used to indicate a man of eminent rank or merit,
just as we use A-1 or A to indicate excellence of
either persons or commodities.
A is also used in numerous other phrases and
proverbs. For example, A word to the wise is
sufficient.  This ordinarily admonitory proverb
was held to be libellous in view of the context in
which it was used. One who had sold out to his
partner warned customers that the buyer was not
responsible for his debts, since he was a minor,
and that "a word to the wise is sufficient." The
court said: "But when what was previously said
is followed by the significant and proverbially pre.
cautionary words—`A word to the wise is suffi-
cient,' the idea is at once conveyed that plaintiff,
is wanting in honor and integrity as a business
man, and that those who should deal with him
would suffer loss." Hays v. Mather, 15 Ill.App.
30, 34. For the phrase, from alpha to omega,
there is our from A to Z and A to izzard, and the
German von A bis Z, which mean from beginning
to end; completely; thoroughly; or in more
modern slang, from soup to nuts. The German
proverb Wer A sagt, mus auch B sagen is based
on a profound knowledge of human nature, and
translates, you can't say A without saying B; in
for a penny, in for a pound. In other words,
don't take the first step if you don't want to go
the limit. Of a very ignorant or stupid person
it has long been said that He does not know
great A from a bull's foot or that he knows ni A
ni B (neither A nor B). In Birds of a feather
flock together, a means the same, or a feather
means the same kind.
A as Abbreviation
As an abbreviation a, either alone or in combi-
nation with other letters, is used in all the arts
and sciences as well in hundreds of non-technical
ways. Its meaning as an abbreviation largely de-
pends on context. In common usage, it may mean
about, accepted, acne, aged, answer, ante, area,
amateur, etc. It is also used for almost any name
of a person beginning with A, as Alfred, Anna,
etc. In chemistry it stands for argon. A note
provided for "Int. @ p. a." The court said:
"The letter when used in a note, as it is here,
is known and recognized among commercial peo-
ple and businessmen as standing for 'at.'" Bel-
ford v. Beatty, 34 N.E. 254, 255, 145 Ill. 414, 418.
A is an abbreviation of adversus (against).
Versus and its abbreviation v. are much oftener
used in this sense, though the original Latin
meaning of versus is toward; in the direction of.
A, angstrom unit; the unit for measuring the
length of light waves.. The ultra violet rays of
sunlight between 3130A and 2900A activate pro-
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A
vitamins in the skin and certain foods, so as to
produce the antirachitic substance known as vita-
min D, which is also extracted from fish liver
oils.
The Spelling of A
A was formerly spelt a-per-se, a ("a" by itself
makes the word "a") of which A-per-se-A, A per-
sey, and apersie were corruptions and synony-
mous with superior, chief, first, etc.
A in Latin and Law Latin
Anglo-American law abounds in Latin and
French words and phrases, and the use of A in
these languages is important to the English-
speaking lawyer. In Latin "A" was used both as
an abbreviation and as a symbol. For example
"A" was an abbreviation for "Aulus,". a praeno-
men, or the first of the usual three names of a
person by which he was distinguished from others
of the same family; also for "ante" in "a. d.,"
ante diem (before the day), and for "anno" (year)
in a. u. c., anno urbis conditae (the year of the
building of the city) and in anno ab urbe condita
(from the year of the building of the city). As a
preposition, the form was either A, AB or ABS.
A was used before consonants; ab was usually
used before vowels, but sometimes before conso-
nants, whereas abs was used before "c" or "t."
The meaning was "from," "away from," "on the
side of," "at," "after," "since," "by," "by means
of," "out of," "with reference to," "in regard of,"
"near by," and "along." For example, A fronte
in front; ab tergo, from behind; a puertitia,
from youth; ab sole orbe, from or at sunrise; ab
intestato, without a will, intestate. In law Latin,
"a" means "by," "with," "from," "in," "of," and
"on," and AB means "by," "from," and "in". 1
C.J.S. p. 2.
A in French and Law French
In French A is a preposition, the meaning of
which largely depends on context. It is usually
translated as "into," "at," "to," "in," "by," "of,"
"with," "on," "from," "for," "under," "till," "with-
in," "between," etc. It also changes into au and
aux when combined with "the." A is also the
third person, singular number, present tense, in-
dicative mood of the verb avoir, (to have) : Il a
(he has). In law French "a" is used as a preposi-
tion meaning "at," "for," "in," "of," "on," "to,"
and "with." 1 C.J.S. p. 2.
A in Roman Criminal Law
Among the Romans this letter was used in crim-
inal trials.  The judges were furnished with
small tables covered with wax, and each one in-
scribed on it the initial letter of his vote: A (ab-
solvo) when he voted to acquit the accused; C
(condemno) when he was for condemnation; and
N L (non liquet), when the matter did not appear
clearly, and he desired a new argument.
The letter A (i. e. antiquo, "for the old law")
was inscribed upon Roman ballots under the Lex
Tabellaria, to indicate a negative vote; Tayl.Civ.
Law, 191, 192.
A as Indefinite Article
A is the form of the indefinite article that is
used before consonants and initial consonant
sounds, on being used before initial vowel sounds,
as, for example, a house, a year, a utility; but an
oak, an ape and an hour, because the h is silent.
.Formerly where the initial h of certain words was
not accented, as historical, hypothetical, hotel,
humble, etc., an was used, but now the h is no
longer silent, and the best usage in both the Unit-
ed States and England is to use a before such
words. A hypothetical question, a historical mon-
ument, a hotel, etc., are the correct forms.
The word "a" has varying meanings and uses.
"A" means "one" or "any," but less emphatically
than either. It may mean one where only one is
intended, or it may mean any one of a great num-
ber. It is placed before nouns of the singular
number, denoting an individual object or quality
individualized. First Trust Joint Stock Land
Bank of Chicago v. Armstrong, 222 Iowa 425, 269
N.W. 502, 506, 107 L.R.A. 873.
The article "a" is not necessarily a singular
term; it is often used in the sense of "any" and is
then applied to more than one individual object.
Philadelphia & R. R. Co. v. Green & Flinn, 2 W.W.
Harr. (Del.) 78, 119 A. 840, 846; In re Sanders,
54 Law J.Q.B. The article "a" is not generally
used in a singular sense unless such an intention
is clear from the language of the statute, 1 C.J.S.,
A, p. 1, but statute providing that parties to "a"
reorganization shall be deemed a single employ-
ing unit referred to quality or nature of changes,
rather than quantity, and meant not one or only
one, but any, and fact that there had been more
than one reorganization did not prevent statute
from applying. Lindley v. Murphy, 387 Ill. 506,
56 N.E.2d 832, 838. So under a statute providing
that the issuance of "a" certificate to one carrier
should not bar a certificate to another over the
same route, a certificate could be granted to more
than two carriers over the same route. State ex
rel. Crown Coach Co. v. Public Service Commis-
sion, 238 Mo.App. 287, 179 S.W.2d 123, 127. But the
meaning depends on context. For example, in
Workmen's Compensation Act, on, or in or about
"a" railway, factory, etc., was held not to mean
any railway, factory, etc., but the railway, fac-
tory, etc., of the employer. Francis v. Turier,
[1900] 1 Q.B. 478; 69 L.J.Q.B. 182; 81 L.T. 770; 48
W.R. 228; 64 J.P. 53.
Insurance against loss occasioned by "a sea" did
not limit insured to loss occasioned by a single
wave, but covered losses occasioned by heavy
waves during voyage. Snowden v. Guion, 101 N.
Y. 458, 5 N.E. 322.
In State ex rel. Atty. Gen. v. Martin, 60 Ark. 343, 30 S.
W. 421, 28 L.R.A. 153, the state Constitution provided for
"a judge" in each circuit. Owing to increase in judicial
business, the Legislature provided for an additional judge
for the sixth circuit. It was contended that the statute
was unconstitutional. The court said:
"Now, the adjective 'a,' commonly called the 'indefinite
article,' and so called, too, because it does not define any
particular person or thing, is entirely too indefinite, in
the connection used, to define or limit the number of
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A
judges which the legislative wisdom may provide for the
judicial circuits of the state. And it is perfectly obvious
that its office and meaning was well understood by the
framers of our constitution, for nowhere in that instru-
ment do we find it used as a numerical limitation. It is
insisted that if 'a' does not mean 'one,' and 'but one,' in
the section quoted, then the way is open for a latitudi-
narian construction in the various other sections where it
occurs.
" * • * So the question recurs as to the significance
of the letter 'a,' for the convention must be taken to have
meant what they have plainly said. It performs precisely
the same office here as in every other section where it
occurs. Section 6 of the article 7 says, 'A judge of the
supreme court shall be learned in the law,' etc. ; section
16 says, 'A circuit judge shall be learned in the law,' etc. ;
section 41, 'A justice of the peace shall be a qualified
elector and a resident of the township,' etc. Does the
word 'a' in these sections mean one, and only one, judge
or justice? If so, which one ? In the same section in
which 'a judge' occurs we find. `He shall be "a" conserva-
tor of the peace within the circuit.' Does 'a conservator'
mean that he is to be the only conservator of the peace for
the circuit? If so, this provision is plainly in conflict with
others. See sections 4, 40. It is apparent that 'a' was used
before the word 'judge' in the section under consideration
because, according to our English idiom, the sentence
could not have been euphoniously expressed without it. In
some languages—the Latin and Russian, for instance—it
would not have been used at all. It could have been omit-
ted without in the least impairing the sense, and its use
gave no additional force or meaning to the sentence. To
use the illustration of the learned counsel for the state:
If one orders 'a sack of flour, a ham, a horse, a ton of
coal,' etc., it is understood he means but one. So it would
be understood if he left off the 'a,' and said 'sack of flour,
ham, horse, ton of coal,' the 'a' being used before the
words beginning with the consonant sound simply to pre-
serve the euphony. If the limitation is not in the word
'judge' without the 'a,' there is certainly no restriction
with it. According to Mr. Webster, 'a' means 'one' or
'any,' but less 'emphatically than either.' It may mean
one where only one is intended, or it may be any one of
a great number. That is the trouble. Of itself, it is in
no sense a term of limitation. If there were a dozen
judges in any one circuit each would still be 'a judge' for
that circuit. Mr. Webster also says, 'It is placed before
nouns of the singular number, denoting an individual
object, or quality individualized.' 'Quality' is defined as
(1) 'the condition of being of such a sort as distinguished
from others; (2) special or temporary character; profes-
sion, occupation.' Webst. Dict. The 'a' was so used here.
The character, or profession, individualized, was that of a
judge. The functions of the office to be performed were
those of 'a judge,' not governor, sheriff, or constable. A
review of the various other provisions of the constitution,
supra, where the word 'a' occurs, shows that no absurd
consequences, such as filling the offices in other depart-
ments with a multitudinous array of incumbents, could
possibly result."
Where the law required the delivery of a copy
of a notice to husband and a copy to wife, the
sheriff's return that he had delivered "a copy" to
husband and wife was insufficient. State v. Da-
vis, Tex.Civ.App., 139 S.W.2d 638, 640.
In Lakeside Forge Co. v. Freedom Oil Works, 265 Pa.
528, 109 A. 216, 217, it was said :
" 'A car or two' signifies an indefinite small number,
and may include as many as seven. In that respect the
expression is similar to 'a few.' It must be construed
with reference to the subject matter, and is not necessarily
confined to one or two. It is like the words 'in a day or
two.' "
In Deutsch v. Mortgage Securities Co., 96 W.Va. 676, 123
S.E. 793, the deed contained a covenant against construc-
tion of flats or apartments and provided that no dwelling
but "a one-family house" should be built on the lot. The
grantee built two one-family dwelling houses; and it was
held that he could properly do so.
"A" is sometimes read as "the." Bookham v.
Potter, 37 L.J.C.P. 276; L.R. 3 C.P. 490; 16 W.R.
806; 18 L.T. 479, though the two terms are ordi-
narily distinguishable. Howell v. ,State, 138 S.E.
206, 164 Ga. 204. The grant of "a" right of sport-
ing on land, gives only a concurrent right, but
the grant of "the" right gives it exclusively.
Sutherland v. Heathcote, [1892] 1 Ch. 475; 61 L.J.
248; 66 L.T. 210. And a license to fish with "a"
rod and line does not justify the use of more than
one rod and one line. Combridge v. Harrison, 72
L.T. 592; 64 L.J.M.C. 175; 59 J.P. 198.
Hinson v. Hinson, 176 N.C. 613, 97 S.E. 465, in-
volved a will providing that son taking care of
widow should receive $100 "a year." It was held
that the quoted words were not synonymous with
annually, but merely fixed the rate of compensa-
tion, and that there was no right to compensation
until widow's death.
AAA. Agricultural Adjustment Act.
A. A. C. Anno ante Christum, the year before
Christ.
A. A. C. N. Anno ante Christum natum, the year
before the birth of Christ.
A AVER ET TENER. L. Fr. (L. Lat. habendurn
et tenendum.) To have and to hold. Co.Litt. §§
523, 524. A aver et tener a luy et a ses heires, a
touts fours,—to have and to hold to him and his
heirs forever. Id. § 625. See Aver et Tener.
A. B. Able-bodied seaman. In English law a sea-
man is entitled to be rated A. B. when he has
served at sea three years before the mast. In the
United States the term "Able Seaman" is used.
For the requirements of able seaman, see 46 U.S.
C.A. § 672. Also artium baccalaureus, bachelor of
arts. In England, generally written B. A.
A. B. A. American Bar Association.
A. B. A. J. American Bar Association Journal.
A BON DROIT. With good reason; justly; right-
fully.
A. C., Anno Christi, the year of Christ.
A/C means account and is much used by book-
keepers. As used in a check, it has been held not
a direction to the bank to credit the amount of
the check to the person named, but rather a mem-
orandum to identify the transaction in which the
check was issued. Marsh v. First State Bank &
Trust Co. of Canton, 185 29, 32.
A CANCELLANDO. From cancelling. 3 Bl.
Comm. 46.
A CANCELLIS, The Chancellor.
A CANCELLIS CURIAE EXPLODI. To be ex-
pelled from the bar of the court.
A CAPELLA OR A LA CAPELLA. In music, in
the church style; also that the instruments are
to play in unison with the vocal part, or that one
part is to be played by a number of instruments.
A CAUSA DE CY. For this reason.
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A LATERE
A. C. C. Agricultural Credit Corporation.
A CE. For this purpose.
A CEL JOUR. At this day.
A CELO USQUE AD CENTRUM. From the
heavens to the center of the earth. Or more
fully, Cujus est solum ejus est usque ad coelum et
ad inferos. The owner of the soil owns to the
heavens and also to the lowest depths. Or, Cujus
est solum est usque ad cceium,—the owner of the
soil owns to the heavens. This doctrine has been
questioned. Butler v. Frontier Telephone Co., 186
N.Y. 486, 79 N.E. 716, 11 L.R.A.,N.S., 920—and
the flight of airplanes and recent oil and gas reg-
ulations undoubtedly have qualified the owner's
dominion not only in the heavens but in the lowest
depths. See American Digest System, Mines and
Minerals, C=.92, and Trespass, 010.
A COMMUNI OBSERVANTIA NON EST RECE-
DENDUM. From common observance there
should be no departure; there must be no de-
parture from common usage. 2 Coke, 74; Co.
Litt. 186a, 229b, 365a; Wing.Max. 752, max. 203.
A maxim applied to the practice of the courts, to
the ancient and established forms of pleading and
conveyancing, and to professional usage general-
ly. Id. 752-755. Lord Coke applies it to common
professional opinion. Co.Litt. 186a, 364b.
A CONFECTIONE. From the making. Clay-
ton's Case, 5 Coke, pt. II, la; Anonymous, 1 Ld.
Raym. 480.
A CONFECTIONE PRAESENTIUM. From the
making of the indentures. Clayton's Case, 5
Coke, pt. II, la.
A CONSILIIS. (Lat. consilium, advice.) Of
counsel; a counsellor. The term is used in the
civil law by some writers instead of a responsis.
Spelman, "Apocrisarius."
A CONTRARIO SENSU. On the other hand; in
the opposite sense.
A CUEILLETTE. In French law. In relation to
the contract of affreightment, signifies when the
cargo is taken on condition that the master suc-
ceeds in completing his cargo from other sources.
Arg.Fr.Merc.Law, 543.
A. D. Anno Domini, in the year of our Lord.
An information charging that act was committed on 4th
day of August, "A. D. 190 ," alleged an impossible year
"and it is quite evident that the last figure of the year
was inadvertently omitted but what that figure was
intended to be * * * cannot be inferred with any cer-
tainty." People v. Weiss, 168 Ill.App. 502, 504.
"The information alleges that the offense therein sought
to be charged was committed 'on the 30th day of April, A.
D. 19 .' There is no other allegation of time in the infor-
formation, and it Is in effect and for all practical purposes
wholly wanting in any allegation as to time. The time
alleged is impossible and in that respect the information
is absurd. The objection is not merely technical, as that
term is commonly used, but is substantial and fatal." Peo-
ple v. Wagner, 172 Ill.App. 84,
A DATO. From the date. Cro.jac. 135. See A
Datu.
A DATU. Law Latin. From the date. Anony-
mous, 1 Ld.Raym. 480; Haths v. Ash, 2 Salk. 413.
See A Dato.
A DIE CONFECTIONIS. From the day of the
making. Barwick's Case, 5 Coke 93b.
A DIE DATUS. From the day of the date. Hat-
ter v. Ash, 1 Ld.Raym. 84; Anonymous, 1 Ld.
Raym. 480; Seignorett v. Noguire, 2 Ld.Raym.
1241. Used in leases to determine the time or
running of the estate, and when so used includes
the day of the date. Doe v. Watkins, 1 Cowp.
189, 191. But contra, see Haths v. Ash, 2 Salk.
413.
A DIGNIORI FIERI DEBET DENOMINATIO.
Denomination ought to be from the more worthy.
The description (of a place) should be taken from
the more worthy subject (as from a will). Fleta,
lib. 4, c. 10, § 12.
A DIGNIORI FIERI DEBET DENOMINATIO ET
RESOLUTIO. The title and exposition of a thing
ought to be derived from, or given, or made with
reference to, the more worthy degree, quality, or
species of it. Wing.Max. 265, max. 75.
A. E. C. Atomic Energy Commission.
A FINE FORCE. Of pure necessity.
A FORCE. Of necessity.
A FORCE ET ARMIS. With force and arms.
A FORFAIT ET SANS GARANTIE. In French
law. A formula used in indorsing commercial
paper, and equivalent to "without recourse."
A FORTIORI. With stronger reason; much
more. A term used in logic to denote an argu-
ment to the effect that because one ascertained
fact exists, therefore another, which is included
in it, or analogous to it, and which is less im-
probable, unusual, or surprising, must also exist.
A GRATIA. By grace; not of right.
A. H., Anno Hegirae (in the year of the hegira).
A ISSUE. At issue.
A JURE SUO CADUNT. They (for example, per-
sons abandoning chattels) lose their right.
A JUSTITIA (QUASI A QUODAM FONTE) OM-
NIA JURA EMANANT. From justice, as a foun-
tain, all rights flow. Brae. 2 b.
A LA GRANDE GREVAUNCE. To the great
grievance.
A LARGE. Free; at large.
A LATERE. Lat. Collateral. Used in this sense
in speaking of the succession to property. Bract.
20b, 62b. From, on, or at the side; collaterally.
A latere ascendit ( jus). The right ascends col-
laterally. Justices of the Curia Regis are de-
scribed as a latere regis residentes, sitting at the
side of the King; Bract. fol. 108a; 2 Reeve, Hist.
Eng.L. 250.
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A LATERE
In Civil Law and by Bracton, a synonym for e
transverso, across. Bract. fol. 67a.
Applied also to a process or proceeding. Keilw.
159. Out of the regular or lawful course; inci-
dentally or casually. Bract. fol. 42b; Fleta, lib.
3, c. 15, § 13.
From the side of; denoting closeness of inti-
macy or connection; as a court held before audi-
tors specialiter a latere regis destinatis. Fleta,
lib. 2, c. 2, § 4.
Apostolic; having full powers to represent the
Pope as if he were present. Du Cange, Legati,
a latere; 4 Bla.Com. 306.
A LIBELLIS. L. Lat. An officer who had charge
of the libelli or petitions addressed to the sov-
ereign. Calvin. A name sometimes given to a
chancellor, (cancellarius,) in the early history of
that office. Spelman, "Cancellarius."
A L'IMPOSSIBLE NUL N'EST TENU. No one is
bound to do the impossible.
A LOUR FOY. In their allegiance.
A LUY ET A SES HEIRES A TOUTS JOURS.
To him and to his heirs forever.
A. M. Ante meridiem, before noon. Only the
abbreviation is ordinarily used. Orvik v. Cassel-
man, 105 N.W. 1105, 15 N.D. 34. Also artium
magister, master of arts. Also annus mirabilis,
the wonderful year-1666, the year of the defeat
of the Dutch fleet and of the great London fire.
Also anno mundi, in the year of the world; that
is, when the creation of the world is said to have
taken place, 4004 B. C.
A. M. A. Agricultural Marketing Act.
A MA INTENT. On my action. Mitchell v.
Reynolds, 1 Smith Lead.Cas. (7th Am. ed.) 516.
A MANIBUS. Lat. Royal scribe. Amanuensis.
A MANU SERVUS. Lat. A handservant; a
scribe; a secretary.
A ME. (Lat. ego, I.) A term in feudal grants
denoting direct tenure of the superior lord. 2
Bell, H.L.Sc. 133.
Unjustly detaining from me. He is said to
withhold a me (from me) who has obtained pos-
session of my property unjustly. Calvinus, Lex.
To pay a me, is to pay from my money.
A MENSA ET THORO. Lat. From table and
bed, but more commonly translated, from bed
and board. A kind of divorce, which is rather
a separation of the parties by law, than a dis-
solution of the marriage. 27 C.J.S., Divorce, §
160.
A MULTO FORTIORI. By far the stronger rea-
son.
A NATIVITATE. From birth, or from infancy.
Denotes that a disability, status, etc., is congeni-
tal 3 Bla.Comm. 332; Reg.Orig. 266b.
A NON POSSE AD NON ESSE SEQUITUR AR-
GUMENTUM NECESSARIE NEGATIVE, LICET
NON AFFIRMATIVE. A literal translation—
From impossibility to non-existence the inference
follows necessarily in the negative, though not in
the affirmative—is as ambiguous as the original.
It could be translated thus: The negative infer-
ence of non-existence necessarily follows from im-
possibility of existence, but the affirmative infer-
ence of existence cannot be drawn from mere pos-
sibility.
A. 0. C. Anno orbis conditi, the year of the crea-
tion of the world.
A OUTRANCE. To the bitter end; to excess;
to the utmost extent. Frequently incorrectly
written by persons with only a smattering of
French a l'outrance.
A PAIS. To the country; at issue.
A PALATIO. L. Lat. From Palatium, (a pal-
ace.) Counties palatine are hence so called. 1
Bl.Comm. 117. See Palatium.
A. P. C. Alien Property Custodian.
A. P. C. N. Anno post Christum natum, the year
after the birth of Christ.
A PIRATIS AUT LATRONIBUS CAPTI LIBERI
PERMANENT. Persons taken by pirates or rob-
bers remain free. Dig. 49, 15, 19, 2; Gro. de J. B.
lib. 3, c. 3, § 1.
A PIRATIS ET LATRONIBUS CAPTA DOMI-
NUM NON MUTANT. Capture by pirates and
robbers does not change title. Bynk. bk. 1, c. 17;
1 Kent, Comm. 108, 184. No right to booty vests
in piratical captors; no right can be derived from
them by recaptors to the prejudice of the original
owners. 2 Wood.Lect. 428.
A POSTERIORI. Lat. From the effect to the
cause; from what comes after. A term used in
logic to denote an argument founded on experi-
ment or observation, or one which, taking ascer-
tained facts as an effect, proceeds by synthesis
and induction to demonstrate their cause.
A. P. R. C. Anno post Roman conditam, year aft-
er the foundation of Rome.
A PRENDRE. L. Fr. To take; to seize. Bret
a prendre la terre, a writ to take the land. Fet
Ass. § 51. A right to take something out of the
soil of another is a profit a prendre, or a right
coupled with a profit. 1 Crabb, Real Prop. p.
125, § 115. Distinguished from an easement. 5
Adol. & E. 758. Sometimes written as one word,
apprendre, apprender. See Profit a prendre.
Rightfully taken from the soil. 1 N. & P. 172;
Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Am.Dec.
333.
A PRIORI. Lat. From the cause to the effect;
from what goes before. A term used in logic to
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AB ACTIS
denote an argument founded on analogy, or ab-
stract considerations, or one which, positing a
general principle or admitted truth as a cause,
proceeds to deduce from it the effects which must
necessarily follow.
A PROVISIONE VIRI. By the provision of man.
4 Kent, Comm. 55.
A QUO. Lat. From which. A court a quo (also
written "a qua") is a court from which a cause
has been removed. The judge a quo is the judge
in such court. Clegg v. Alexander, 6 La. 339.
A term used, with the correlative ad quem (to
which), in expressing the computation of time,
and also of distance in space. Thus, dies a quo,
the day from which and dies ad quem, the day to
which, a period of time is computed. So, termi-
nus a quo, the point or limit from which, and
terminus ad quem, the point or limit to which, a
distance or passage in space is reckoned.
A QUO INVITO ALIQUID EXIGI POTEST.
From whom something may be exacted against
his will.
A. R. Anno Regni. In the year of the reign; as
A. R. V. R. 22, (Anno Regni Victoriae Reginae
vicesimo secundo) in the twenty-second year of
the reign of Queen Victoria.
A REMENAUNT. Forever.
A RENDRE. (Fr. to render, to yield.) That
which is to be rendered, yielded, or paid. Profits
a rendre comprehend rents and services. Ham.
N.P. 192.
A RESCRIPTIS VALET ARGUMENTUM. An ar-
gument from rescripts [i. e. original writs in the
register] is valid. Co.Litt. 11 a.
A RESPONSIS. L. Lat. In ecclesiastical law.
One whose office it was to give or convey an-
swers; otherwise termed responsalis, and apocris-
iarius. One who, being consulted on ecclesiastical
matters, gave answers, counsel, or advice; other-
wise termed a consiliis. Spelman, "Apocrisi-
arius."
A RETRO. L. Lat. Behind; in arrear. Et redi-
tus proveniens rode a retro fuerit, and the rent
issuing therefrom be in arrear. Fleta, lib. 2, c.
55, § 2; c. 62, § 14.
A RUBRO AD NIGRUM. Lat. From the red to
the black; from the rubric or title of a statute
(which, anciently, was in red letters), to its body,
which was in the ordinary black. Tray.Lat.Max.;
Bell, "Rubric;" Erskine, Inst. 1, 1, 49.
A SAVOIR. To wit.
A SUMMO REMEDIO AD INFERIOREM AC-
TIONEM NON HABETUR REGRESSUS, NEQUE
AUXILIUM. From (after using) the highest
remedy, there can be no recourse (going back) to
an inferior action, nor assistance, (derived from
it.) Fleta, lib. 6, c. 1, § 2. A maxim in the old
law of real actions, when there were grades in the
remedies given; the rule being that a party who
brought a writ of right, which was the highest
writ in the law, could not afterwards resort or
descend to an inferior remedy. Bract. 112b; 3
Bl.Comm. 193, 194.
A TEMPORE CUJUS CONTRARII MEMORIA
NON EXISTET. From a time of which there is
no memory to the contrary.
A TENERIS ANNIS. By reason of youth.
A TERME. For a or the term.
A TERME DE SA VIE. For the term of his life.
U.B. 3 Edw. II, 55.
A TERME QUE N'EST MYE ENCORE PASSE.
For a term that has not yet passed.
A TERME QUE PASSE EST. For a term that
has passed.
A TORT. Without reason; unjustly; wrongfully.
A TORT ET A TRAVERS. Without considera-
tion or discernment.
A TORT OU A DROIT. Right or wrong.
A VERBIS LEGIS NON EST RECENDENDUM.
The words of a statute must not be departed from.
5 Coke 119; Wing.Max. 25. A court is not at
liberty to disregard the letter of a statute, in fa-
vor of a supposed intention. 1 Steph.Comm. 71;
Broom, Max. 268.
A VINCULO MATRIMONII. Lat. From the bond
of matrimony. A term descriptive of a kind of
divorce, which effects a complete dissolution of
the marriage contract. See Divorce.
A B (fr. Abba, Syr., Father). The eleventh month
of the Jewish civil year, and the fifth of the sa-
cred year. It answers to the moon that begins in
July, and consists of thirty days. On the 24th
is observed a feast in memory of the abolishment
of the Sadducean law, which required sons and
daughters to be equal heirs and heiresses of their
parents' estates. Brown's Diet. of Bible, John's
Bib.Antiq. AB, at the beginning of English-Saxon
names of places, is generally a contraction of ab-
bot or abbey; whence it is inferred that those
places once had an abbey there, or belonged to
one elsewhere, as Abingdon in Berkshire.
Blount's Law Gloss. Wharton's Law Lexicon.
AB. ABR. Abridgment.
AB ABUSU AD USUM NON VALET CONSE-
QUENTIA. A conclusion s to the use of a thing
from its abuse is invalid. Broom, Max. 17.
AB ACTIS. Lat. An officer having charge of
acta, public records, registers, journals, or min-
utes; an officer who entered on record the acta
or proceedings of a court; a clerk of court; a
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AB AGENDO
notary or actuary. Calvin.Lex.Jurid. See "Acta."
This, and the similarly formed epithets a cancellis,
a secretis, a libellis, were also anciently the titles
of a chancellor, (cancellarius,) in the early his-
tory of that office. Spelman, "Cancellarius."
AB AGENDO. Disabled from acting; unable to
act; incapacitated for business or transactions of
any kind.
AB ANTE. Lat. Before; in advance. Thus, a
legislature cannot agree ab ante to any modifica-
tion or amendment to a law which a third person
may make. Allen v. McKean, 1 Sumn. 308, Fed.
Cas.No.229 (college charter).
AB ANTECEDENTE. Lat. Beforehand; in ad-
vance. 5 M. & S. 110.
AB ANTIQUO. From old times; from ancient
time; of old; of an ancient date. 3 Bl.Comm. 95.
AB ASSUETIS NON FIT INJURIA. From things
to which one is accustomed (or in which there
has been long acquiescence) no legal injury or
wrong arises. If a person neglect to insist on
his right, he is deemed to have abandoned it.
Amb. 645; 3 Brown, Ch. 639; Jenk.Cent.Introd. vi.
AB EPISTOLIS. Lat. An officer having charge
of the correspondence (epistolce) of his superior
or sovereign; a secretary. Calvin.; Spiegelius.
AB EXTRA. (Lat. extra, beyond, without.)
From without. Lunt v. Holland, 14 Mass. 151.
AB INCONVENIENT!. From hardship, or incon-
venience. An argument founded upon the hard-
ship of the case, and the inconvenience or disas-
trous consequences to which a different course of
reasoning would lead. Barber Asphalt Paving
Co. v. Hayward, 248 Mo. 280, 154 S.W. 140.
AB INITIO. Lat. From the beginning; from the
first act; entirely; as to all the acts done; in
the inception. A party may be said to be a tres-
passer, an estate to be good, an agreement or deed
to be void, or a marriage or act to be unlawful,
ab initio. Plow. 6a, 16a; 1 Bl.Comm. 440; Hop-
kins v. Hopkins, 10 Johns. (N.Y.) 369.
Before. Contrasted in this sense with ex post
facto, 2 Shars.Bla.Comm. 308; or with postea,
Calvinus, Lex., initium.
Validity of insurance policy ab initio, In re Millers' &
Manufacturers' Ins. Co., 97 Minn. 98, 106 N.W. 485; Uncon-
stitutional statute as not void ab initio, State v. Poulin,
105 Me. 224, 74 A. 119, 24 L.R.A.,N.S., 408; physical inca-
pacity, marriage not void ab initio, Bennett v. Bennett, 169
Ala. 618, 53 So. 986, L.R.A.1916C, 693.
AB INITIO MUNDI. Lat. From the beginning
of the world. Ab initio mundi usque ad hodier-
num diem, from the beginning of the world to
this day. Y.B.M. 1 Edw. III, 24.
AB INTESTAT. Intestate. 2 Low.Can. 219.
Merlin, Repert.
AB INTESTATO. - Lat. In the civil law. From
an intestate; from the intestate; in case of intes-
tacy. Hcereditas ab intestato, an inheritance de-
rived from an intestate. Inst. 2, 9, 6. Successio
ab intestato, succession to an intestate, or in case
of intestacy. Id. 3, 2, 3; Dig. 38, 6, 1. This an-
swers to the descent or inheritance of real estate
at common law. 2 Bl.Comm. 490, 516; Story,
Confl.Laws, § 480. "Heir ab intestato." 1 Burr.
420. The phrase "ab intestato" is generally used
as the opposite or alternative of ex testamento,
(from, by, or under a will.) Vel ex testamento,
vel ab intestato [hcereditates] pertinent,—inheri-
tances are derived either from a will or from an
intestate, (one who dies without a will.) Inst. 2,
9, 6; Dig. 29, 4; Cod. 6, 14, 2.
AB INVITO. Unwillingly. Against one's will.
By or from an unwilling party. A transfer ab
invito is a compulsory transfer. See in invitum
and invito.
AB JUDICATIO. A removal from court.
AB IRATO. Lat. By one who is angry. A de-
vise or gift made by a man adversely to the in-
terest of his heirs, on account of anger or hatred
against them, is said to be made ab irato. A suit
to set aside such a will is called an action ab irato.
Merlin, Repert. Ab irato. Snell v. Weldon, 239
Ill. 279, 87 N.E. 1022.
AB OLIM. Of old.
AB OVO. The egg, hence from the beginning in
allusion to old Roman custom of beginning a meal
with eggs and ending with fruit, ab ovo usque ad
mala. To begin with eggs and end with fruit.
Also, at times in allusion to poets who began his-
tory of Trojan war with the egg from which Hel-
en was said to have been hatched in contrast
with Homer who plunged into the midst of things,
or in media res.
AB 1URBE CONDITA. See A.U.C.
ABACIST or ABACISTA. A caster of accounts,
an arithmetician.
ABACTION. A carrying away by violence.
ABACTOR. A stealer and driver away of cattle
or beasts by herds or in great numbers at once, as
distinguished from a person who steals a single
animal or beast. Also called abigeus, q. v.
ABADENGO. In Spanish law. Land owned by
an ecclesiastical corporation, and therefore ex-
empt from taxation. In particular, lands or towns
under the dominion and jurisdiction of an abbot.
Escriche, Dicc. Raz.
ABALIENATE. To transfer interest or title.
ABALIENATIO. In Roman law. The perfect
conveyance or transfer of property from one Ro-
man citizen to another. This term gave place to
the simple alienatio, which is used in the Digest
and Institutes, as well as in the feudal law, and
from which the English "alienation" has been
formed. Inst. 2, 8, pr.; Id. 2, 1, 40; Dig. 50, 16,
28; Calvinus, Lex., Abalienatio.
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ABANDONMENT
ABALIENATION. In the Civil Law, a making
over of realty, or chattels to another by due
course of law.
ABAMITA. Lat. In the civil law. A great-great-
grandfather's sister, (abavi soror.) Inst. 3, 6, 6;
Dig. 38, 10, 3; Calvinus, Lex. Called amita maxi-
ma. Id. 38, 10, 10, 17. Called, in Bracton, aba-
mita magna. Bract. fol. 68b.
ABANDON. To desert, surrender, forsake, or
cede. To relinquish or give up with intent of nev-
er again resuming one's right or interest. Bur-
roughs v. Pacific Telephone & Telegraph Co., 220
P. 152, 155, 109 Or. 404. To give up or to cease
to use. Southern Ry. Co. v. Commonwealth, 105
S.E. 65, 67, 128 Va. 176. To give up absolutely;
to forsake entirely; to renounce utterly; to re-
linquish all connection with or concern in; to
desert. Commonwealth v. Louisville & N. R. Co.,
258 S.W. 101, 102, 201 Ky. 670. It includes the in-
tention, and also the external act by which it is
carried into effect.
ABANDONEE. A party to whom a right or prop-
erty is abandoned or relinquished by another.
Applied to the insurers of vessels and cargoes.
Lord Ellenborough, C.J., 5 Maule & S. 82; Abbott,
J., Id. 87; Holroyd, J., Id. 89.
ABANDONMENT. The surrender, relinquish-
ment, disclaimer, or cession of property or of
rights. Stephens v. Mansfield, 11 Cal. 363 (land) ;
Munsey v. Marnet Oil & Gas Co. (Tex.Civ.App.)
199 S.W. 686, 689 (oil lease) ; Shepard v. Alden,
201 N.W. 537, 539, 161 Minn. 135, 39 A.L.R. 1094
(bowling alleys) ; Union Grain & Elevator Co. v.
McCammon Ditch Co., 240 P. 443, 445, 41 Idaho
216 (water rights).
The giving up of a thing absolutely, without ref-
erence to any particular person or purpose, as
throwing a jewel into the highway; leaving a
thing to itself, as a vessel at sea; vacating prop-
erty with the intention of not returning, so that
it may be appropriated by the next corner. 2 Bl.
Comm. 9, 10; Judson v. Malloy, 40 Cal. 299, 310.
Intention to forsake or relinquish the thing is an
essential element, to be proved by visible acts.
Sikes v. State, Tex.Cr.App., 28 S.W. 688; Jordan
v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, 586
(auto parts) ; Kunst v. Mabie, 72 W.Va. 202, 77
S.E. 987, 990 (uncut timber) ; Dow v. Worley,
126 Okl. 175, 256 P. 56, 60 (oil and gas lease) ;
Duryea v. Elkhorn Coal & Coke Corporation, 123
Me. 482, 124 A. 206, 208.
The voluntary relinquishment of possession of
thing by owner with intention of terminating his
ownership, but without vesting it in any other per-
son. Dober v. Ukase Inv. Co., 139 Or. 626, 10 P.
2d 356, 357. The relinquishing of all title, posses-
sion, or claim, or a virtual, intentional throwing
away of property. Foulke v. New York Consol. R.
Co., 228 N.Y. 269, 127 N.E. 237, 238, 9 A.L.R. 1384
(package in subway car).
Abandonment in law depends upon concurrence of inten-
tion to abandon and some overt act or failure to act which
carries implication that owner neither claims nor retains
any interest. Stinnett v. Kinslow, 238 Ky. 812, 38 S.W.2d
920, 922.
"Abandonment" includes both the intention to abandon
and the external act by which the intention is carried into
effect. In determining whether one has abandoned his
property or rights, the intention is the first and para-
mount object of inquiry, for there can be no abandon-
ment without the intention to abandon. Boatman v. An-
dre, 44 Wyo. 352, 12 P.2d 370, 373. Generally, "abandon-
ment" can arise from a single act or from a series of acts.
Holly Hill Lumber Co. v. Grooms, 16 S.E.2d 816, 821, 198
S.C. 118.
Time is not an essential element of "abandonment,"
although the lapse of time may be evidence of an inten-
tion to abandon, and where it is accompanied by acts man-
ifesting such an intention, it may be considered in deter-
mining whether there has been an abandonment. Ullman
ex rel. Eramo v. Payne, 127 Conn. 239, 16 A.2d 286, 287.
Mere nonuser is not necessarily an abandonment. Har-
nett v. Dickinson, 93 Md. 258. 48 A. 838 (home); Welsh v.
Taylor, 131 N.Y. 450, 31 N.E. 896, 18 L.R.A. 535: Phillis v.
Gross, 32 S.D. 438. 143 N.W. 373, 378 (contract for deed).
See, however, Corkran, Hill & Co. v. A. H. Kuhlemann Co.,
136 Md. 525, 111 A. 471, 474 (trademark). Distinguished
from neglect: City of Vallezo v. Burrill, 64 Cal.App. 399,
221 P. 676 (pipe line).
"Abandonment" differs from surrender in that surrender
requires an agreement, Noble v. Sturm, 210 Mich. 462,
178 N.W. 99, 103; and from forfeiture, in that forfeiture
may be against the intention of the party alleged to have
forfeited, Gila Water Co. v. Green, 29 Ariz. 304, 241 P. 307,
308.
In the Civil and French Law it is the act by
which a debtor surrenders his property for the
benefit of his creditors; Merlin, Repert. See
Abandonment for Torts.
Actions, In General
Failure for indefinite period to prosecute action
or suit, Morris v. Phifer State Bank, 90 Fla. 55,
105 So. 150, unless caused by an injunction, Barton
v. Burbank, 138 La. 997, 71 So. 134. By statute in
some states a definite time has been stated which
will render a suit abandoned and subject to dis-
missal. Public Utilities Commission v. Smith, 298
Ill. 151, 131 N.E. 371, 375.
Failure to submit issue by instruction, Unter-
lachner v. Wells, 317 Mo. 181, 296 S.W. 755, 756;
failure to perform conditions necessary to valid
appeal or writ of error, Lewis v. Martin, 210
Ala. 401, 98 So. 635; Board of Public Instruction
for Marion County v. Goodwin, 89 Fla. 379, 104
So. 779; failure to take issue upon garnishee's an-
swer, Phelps v. Schmuck, 151 Kan. 521, 100 P.2d
67, 71.
Assignments of Error
Not argued. Meyer v. Hendrix, 311 Ill.App. 605,
37 N.E.2d 445, 446.
Not presented in brief. Roubay v. United
States, Q.C.A.Cal., 115 F.2d 49, 50.
Not supported by point, argument or authority.
Cone v. Ariss, 13 Wash.2d 650, 126 P.2d 591, 593.
Bankrupt's Property
In re Mirsky, C.C.A.N.Y., 124 F.2d 1017.
Building Restrictions
Violations of restrictive covenant, Meyer v.
Stein, 284 Ky. 497, 145 S.W.2d 105, 107.
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ABANDONMENT
Cemeteries
No new burials and neglect of graves, Andrus
v. Remmert, 136 Tex. 179, 146 S.W.2d 728, 730;
casual use for farming purpos,s, In re Gundry,
294 Mich. 221, 292 N.W. 709, 711 ;1 disuse as to new
interments, failure to cut grass r care for head-
stones, In re Board of Transpor ation of City of
New York, 251 N.Y.S. 409, 413, 14 Misc. 557.
Children
Desertion or willful forsaking. Cannon v.
State, 53 Ga.App. 264, 185 S.E. 364, 366.
Foregoing parental duties. Wright v. Fitzgib-
bons, Miss., ?1 So.2d 709, 710.
Withdrawal or neglect of parental duties. In
re Potter, 85 Wash. 617, 149 P. 23.
Relinquishment of parental claims. Glendin-
ning v. McComas, 188 Ga. 345, 3 S.E.2d 562, 563.
Separation agreement committing custody of
child to father. Gardner v. Hall, 132 N.J.Eq. 64,
26 A.2d 799, 809.
Separation from the child and failure to supply
its needs. State v. Clark, 148 Minn. 389, 182 N.W.
452, 453.
Criminal offense, separation from child, and
failure to supply its needs. Curtis v. State, 48
Ga.App. 135, 172 S.E. 99, 100.
Defeating recovery for wrongful death. In re
Schiffrin's Estate, 272 N.Y.S. 583, 585, 152 Misc.
33,
Compensation Claims
Failure to file application for hearing. Hanks
v. Southern Public Utilities Co., 210 N.C. 312, 186
S.E. 252.
Condemnation Proceedings
Dismissal of a petition. Will County v. Cleve-
land, 372 Iii. 111, 22 N.E.2d 929, 930.
Failure of commissioners to report, Kean v.
Union County Park Commission, 129 N.J.Eq. 67,
18 A.2d 279, 280, or judgment determining invalid-
ity. City of Los Angeles v. Abbott, Cal., 12 P.2d
19, 22; failure to pay moneys adjudged, Detroit
International Bridge Co. v. American Seed Co.,
228 N.W. 791, 795, 249 Mich. 289.
Construction Work
Cessation of operation and intent of owner and
contractor to cease operations permanently, or at
least for definite period, or some fair notice or
knowledge of abandonment by lien claimant, ac-
tual or implied. Block v. Love, 136 Or. 685, 1 P.2d
588, 589.
Contracts
To constitute "abandonment" by conduct, ac-
tion relied on must be positive, unequivocal, and
inconsistent with the existence of the contract,
Mood v. Methodist Episcopal Church South, Tex.
Civ.App., 289 S.W. 461, 464. Abandonment is a
matter of intent, Lohn v. Fletcher Oil Co., 38 Cal.
App.2d 26, 100 P.2d 505, 507, and implies not only
nonperformance, but an intent not to perform
which may be inferred from acts which necessari-
ly point to actual abandonment, Losei Realty Cor-
poration v. City of New York, 254 N.Y. 41, 171
N.E. 899.
Copyrights
Common-law rights, Tamas v. 20th Century Fox
Film Corporation, Sup., 25 N.Y.S.2d 899, 901; sale
and delivery of uncopyrighted painting to state-
owned public institution, Pushman v. New York
Graphic Soc., Sup., 25 N.Y.S.2d 32, 34; copyright-
ed lectures not delivered to general public, but
only to paying audiences and classes, National
Institute for Improvement of Memory v. Nutt,
D.C.Conn., 28 F.2d 132, 134.
Crops
Sharecropping tenant's willful failure to culti-
vate crops, Heaton v. Slaten, 25 Ala.App. 81, 141
So. 267, 268.
Ditches
Town's nonuser for a short period after per-
mitting ditch to be blocked was insufficient. Fos-
ter v. Webster, Sup., 44 N.Y.S.2d 153, 156. Mere
nonuser does not constitute. Musselshell Valley
Farming & Livestock Co. v. Cooley, 86 Mont. 276,
283 P. 213, 218. After prescriptive right attached,
water shortage in subsequent years rendering
use of ditch unnecessary would not constitute.
Bowman v. Bradley, 270 P. 919, 922, 127 Or. 45.
Domicile
Permanent removal from, Stafford v. Mills, 57
N.J.L. 570, 31 A. 1023.
Easements
To establish "abandonment" of an easement
created by deed, there must be some conduct on
part of owner of servient estate adverse to and
inconsistent with existence of easement and con-
tinuing for statutory period, or nonuser must be
accompanied by unequivocal and. decisive acts
clearly indicating an intent on part of owner of
easement to abandon use of it. Richardson v.
Tumbridge, 111 Conn. 90, 149 A. 241, 242.
Permanent cessation of use or . enjoyment with no inten-
tion to resume or reclaim. Welsh v. Taylor, 134 N.Y. 450,
31 N.E. 896, 18 L.R.A. 535; Corning v. Gould, 16 Wend.,
N.Y., 531. Intention and completed act are both essential.
Town of Orlando v. Stevens, 90 Okl. 2, 215 P. 1050, 1051.,
Goodman v. Brenner, 219 Mich. 55, 188 N.W. 377; brick-
ing up of the openings for stairway and halls of adjoining
buildings, Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173, 178;
where object of use of dedicated property wholly fails,
Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922. But
mere nonuser is not sufficient. Smelcer v. Rippetoe, 24
Tenn.App. 516, 147 S.W.2d 109, 113, 114; O'Barr v. Dun-
can, 187 Ga. 642, 2 S.E.2d 82, 83; right of way acquired by
grant. Burnham v. Mahoney, 222 Mass. 524, 111 N.E. 396,
398; Raleigh, C. & S. Ry. Co. v. McGuire, 171 N.C. 277, 88
S.E. 337, 339. Where owner of building had easement in
adjoining wall, wrecking building preparatory to erection
of a new building, did not cause loss of easement. Joel v.
Publix-Lucas Theater, 193 Ga. 531, 19 S.E.2d 730, 736. And
a mere temporary or occasional obstruction or use of an
easement by the servient owner is not an "abandonment".
Gerber v. Appel, Mo.App., 164 S.W.2d 225, 228. However
nonuser of railroad crossing for more than 20 years, and
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ABANDONMENT
conveyance of strips of land adjoining original right of
way to railroad in fee simple, without reservation, con-
stituted abandonment of easement in crossing. Cityco
Realty Co. v. Philadelphia, B. & W. R. Co., 158 Md. 221,
148 A. 441, 444.
Employment
During Christmas holidays, notwithstanding a
call at employer's office and discussing business,
Stinson v. Dairymen's League Co-op. Ass'n, 186 A.
687, 688, 14 N.J.Misc. 671. Deviation from route,
Loper v. Morrison, 145 P.2d 4, 23 Cal.2d 600; truck
driver unnecessarily permitting passenger to
drive, Ginther v. J. P. Graham Transfer Co., 33 A.
2d 923, 924, 348 Pa. 60. Contra where truck driv-
er remained on driver's seat, directing operation
of truck, and watched passenger's driving, Gin-
ther v. J. P. Graham Transfer Co., 27 A.2d 712,
714, 149 Pa.Super. 635; and where truck driver
became sick, Matzek v. United Storage & Truck-
ing Co., 186 A. 193, 122 Pa.Super. 146. Truck
drivers becoming intoxicated and remaining from
work, Naylon v. State, Ct.C1., 40 N.Y.S.2d 587, 590;
Coal miner contrary to orders, riding on an empty
car, Soroka v. Philadelphia & Reading Coal &
Iron Co., 138 Pa.Super. 296, 10 A.2d.904, 907. But
automobile driver's choosing longer route by
paved highways to pick up a needed change of
clothing at home did not constitute an "abandon-
ment" of his employment. Mitchell v. Mitchell
Drilling Co., 154 Kan. 117, 114 P.2d 841, 844.
Exceptions on Appeal
Not argued in brief, Currin v. Currin, 219 N.C.
815, 15 S.E.2d 279, 282. Not set out in brief, Star
Mfg. Co. v. Atlantic Coast Line R. Co., 222 N.C.
330, 23 S.E.2d 32, 40. Not complaining of rulings
on exceptions, Buckalew v. Brockner, La:App.,
11 So.2d 720, 722. Failing to answer appeal to
re-urge exception, John Myers Implement Co. v.
De Boer, La.App., 9 So.2d 832, 833. Filing an-
swers without insisting on decision on exceptions
to jurisdiction ratione personae, Weaver v. Mans-
field Hardwood Lumber Co., La.App., 4 So.2d 781,
782.
Family
Where father during three or four months fol-
lowing his departure contributed only $32 to sup-
port of wife and three minor children, Howton v.
Howton, 51 Cal.App.2d 323, 124 P.2d 837, 839. Con-
tra where father helped to support family, In re
Hess' Estate, 257 N.Y.S. 278, 282, 143 Misc. 335.
Franchises
'Inferior service and lack of any service for few
short intervals held insufficient to show "aban-
donment" of ferry franchise. McConnell v. Crit-
tenden County, 250 Ky. 359, 63 S.W.2d 329.
Highways
Where public ceases to use street or highway
under circumstances indicating intent to abandon,
Grand Trunk Western R. Co. v. City of Flint, D.
C.Mich., 55 F.2d 384, 386. But short sections of
highway, discontinued by state highway commis-
sion upon relocating highway, were not aban-
Boned. Mosteller v. Southern Ry. Co., 220 N.C.
275, 17 S.E.2d 133, 135. And cultivation of high-
way for short period by abutting landowners was
not an "abandonment" of highway. Chicago &
E. I. Ry. Co. v. Road Dist. No. 10, 353 Ill. 160, 187
N.E. 155, 157.
Homesteads
Removal with an intention never to return con-
stitutes an "abandonment", and nothing less does.
Farmers' State Bank of Georgetown v. Roberts,
Tex.Civ.App., 59 S.W.2d 1089. Must be voluntary
action, Wood v. Wood, 203 Ark. 344, 157 S.W.2d
36, 38. Temporary absence with intention to re-
turn, Brewer v. Brewer, 268 Ky. 625, 105 S.W.2d
582, 584. Absence of a design of permanent
abandonment, Lanier v. Lanier, 95 Fla. 522, 116
So. 867, 868. Absence by necessity, Hinds v. Buck,
177 Tenn. 444, 150 S.W.2d 1071, 1072; sickness, In
re Dunlap's Estate, 161 Or. 93, 87 P.2d 225, 229;
advancing years and inability to care for selves,
Gulf Production Co. v. Continental Oil Co., Tex.,
132 S.W.2d 553, 573, 576; to rent to winter tour-
ists, Collins v. Collins, 150 Fla. 374, 7 So. 443, 444.
A deed with reservation of a life estate did not
constitute "abandonment" of homestead. Arighi
v. Rule & Sons, 41 Cal.App. 852, 107 P.2d 970, 972.
Nor did filing of suit to partition land. Carr v.
Langford, Tex.Civ.App., 144 S.W.2d 612, 613.
Husband
The act of a husband or wife who leaves his or
her consort willfully, and with an intention of
causing perpetual separation. People v. Cullen,
153 N.Y. 629, 47 N.E. 894, 44 L.R.A. 420.
Wife's leaving husband for a trip to Europe of less than
two months against husband's wishes, did not constitute.
In re Boesenberg's Estate, 37 N.Y.S.2d 194, 196, 179 Misc. 3.
Abandonment as cause for divorce must be willful and
intentional without intention of returning, and without
consent of spouse abandoned. Hickey v. Hickey, 152
Wash. 429, 277 P. 994, 995. Husband forcibly expelling
wife from home, Tenorio v. Tenorio, 44 N.M. 89, 98 P.2d
838, 847. Refusal to talk to husband did not establish.
Wyahllyeth v. Wyahllyeth, 182 Md. 663, 32 A.2d 380, 381.
Wife refusing without good cause to accompany husband
when moving, Ventrano v. Vetrano, 54 N.Y.S.2d 537, 539.
Word "abandoned," within statute providing that no
wife who has abandoned husband shall have right of elec-
tion to take against provisions of husband's will, has
meaning ascribed thereto in matrimonial litigations, and
carries no connotation of infidelity. Adultery of aban-
doned wife did not constitute "abandonment". In re
Green's Estate, 280 N.Y.S. 692, 702, 155 Misc. 641.
A wife who told husband to get out of wife's home, and
made no effort to effect a reconciliation, was not entitled
to appointment as administratrix of his estate. In re Ban-
aszak's Estate, 1 N.Y.S.2d 15, 164 Misc. 829.
Where husband paid wife living apart in caring for their
child, she had not abandoned husband so as to preclude
the recovery of an industrial pension for his death. John-
son v. Department of Labor and Industries of Washington,
3 Wash.2d 257, 100 P.2d 382, 385. But wife who had, prior
to husband's death, left husband, resisted efforts toward a
reconciliation, and instituted annulment proceedings, was
not entitled to compensation for husband's death. La
Fountain v. Industrial Accident Commission, 13 Cal.App.2d
130, 56 P.2d 257, 258.
Insured Property
A relinquishment or cession of property by the
owner to the insurer of it, in order to claim as for
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a total loss. Chicago S. S. Lines v. U. S. Lloyds,
C.C.A.I11., 12 F.2d 733, 738.
The term is used only in reference to risks in naviga-
tion; but the principle is applicable in fire insurance,
where there are remnants, and sometimes, also, under
stipulations in life policies in favor of creditors. Cincin-
nati Ins. Co. v. Duffield, 6 Ohio St. 200, 67 Am. Dec. 339.
Inventions
The giving up of rights by inventor, as where
he surrenders his idea or discovery or relinquishes
the intention of perfecting his invention, and so
throws it open to the public, or where he negli-
gently postpones the assertion of his claims or
fails to apply for a patent, and allows the public
to use his invention. Electric Storage Battery
Co. v. Shimadzu, Pa., 59 S.Ct. 675, 681, 307 U.S. 5,
613, 616, 83 L.Ed. 1071.
Disclaimer of claim of patent, Triumph Explosives v.
Kilgore Mfg. Co., C.C.A.Md., 128 F.2d 444, 448; delaying
12 years after reducing shoe to practice before applying
for patent, Salisbury v. Pediforme Shoe Co., D.C.N.Y., 31
F.Supp. 3, 7; omitting for many years to take any step
to reinstate or renew rejected application, Na-Mac Prod-
ucts Corporation v. Federal Tool Corporation, c.c.A.m.,
118 F.2d 167, 171; acquiescing in rejection of claims in
patent application for device shown in later application
for patent, Na-Mac Products Corporation v. Federal Tool
Corporation, C.C.A.Ill., 118 F.2d 167, 171; Na-Mac Prod-
ucts Corporation v. Federal Tool Corporation, D.C.Ill., 36
F.Supp. 426, 430. But mere lapse of time before an inven-
tor applies for a patent is not sufficient. Imperial Brass
Mfg. Co. v. Bonney Forge & Tool Works, D.C.Pa., 38 F.
Supp. 829, 832. Patent application was not filed until 21/2
years after date of conception of invention, Chicago Raw-
hide Mfg. Co. v. National Motor Bearing Co., D.C.Cal., 50
F.Supp. 458, 460. Nor is disclosing invention to individ-
uals with purpose of interesting them in production or
manufacture. Pennington Engineering Co. v. Houde En-
gineering Corporation, D.C.N.Y., 43 F.Supp. 698, 706.
Leases in General
To constitute an "abandonment" of leased
premises, there must be an absolute relinquish-
ment of premises by tenant consisting of act and
intention. Schnitzer v. Lanzara, 115 N.J.L. 332,
180 A. 234.
Closing up butcher shop with intention of giving up busi-
ness and in removing all perishable merchandise, although
tenant retained key and did not notify landlord of inten-
tion to vacate premises, held an "abandonment" and not
a "surrender" of premises. Schnitzer v. Lanzara, 115 N.
J.L. 332, 18 A. 234. Refusal by lessee of lessor's offer to
reconstruct burned building, Girard Trust Co. v. Tremblay
Motor Co., 291 Pa. 507, 140 A. 506, 512. But tenants sur-
rendering premises pursuant to notice of forfeiture did
not "abandon" premises. Becker v. Rute, 228 Iowa 533,
293 N.W. 18, 21.
Marriage
Withdrawal or denial of marital obligations
without just cause, Reppert v. Reppert, Del.Super.,
13 A.2d 705, 1 Terry 492.
Mineral Leases
"Abandonment" consists of an actual act of re-
linquishment, accompanied with the intent and
purpose permanently to give up a claim and right
of property. A distinction exists between "aban-
donment" and "surrender" which is the relinquish-
ment of a thing or a property right thereto to
another, which is not an essential element of
abandonment. Distinction also exists between
elements of "abandonment" and those of estoppel.
Neither formal surrender of oil and gas lease nor
release is necessary to effectuate "abandonment."
Sigler Oil Co. v. W. T. Waggoner Estate, Tex.Civ.
App., 276 S.W. 936, 938. Voluntary, intentional
relinquishment of known right. Pure Oil Co. v.
Sturm, 43 Ohio App. 105, 182 N.E. 875, 882.
Failing to start work under the lease for more than 40
years, Chapman v. Continental Oil Co., 149 Kan. 822, 89
P.2d 833, 834; breach of implied obligation to proceed
with search and development of land with reasonable dili-
gence, Wood v. Arkansas Fuel Oil Co., D.C.Ark., 40 F.
Supp. 42, 45; no drilling on leased land for more than two
years, and failure to pay rentals, Rehart v. Klossner, 48
Cal.App.2d 40, 119 P.2d 145, 147; drawing of casing from
well with no intention of replacing it, Seaboard Oil Co. v.
Commonwealth, 193 Ky. 629, 237 S.W. 48, 50. But there
must be an intention by lessee to relinquish leased prem-
ises, Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945,
950, 951; or an intention not to drill, Carter Oil Co. v.
Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951. And ceasing
of operations is not alone sufficient. Fisher v. Dixon, 188'
Okl. 7, 105 P.2d 776, 777. Doing no substantial work for
about one year immediately preceding suit to cancel lease,
but remaining in possession and doing some work, Deace
v. Stribling, Tex.Civ.App., 142 S.W.2d 564, 567; disconnec-
tion of well for a brief interval while well was being
drilled to a greater depth, Cole v. Philadelphia Co., 345 Pa.
315, 26 A.2d 920, 923; abandoning work on unproductive
well was not an abandonment of leased premises. Smith
v. Tullos, 195 La. 400, 196 So. 912, 914.
Mining Claims
Relinquishment of a claim held by location with-
out patent, where the holder voluntarily leaves his
claim to be appropriated by the next corner, with-
out any intention to retake or resume it, and re-
gardless of what may become of it in the future.
O'Hanlon v. Ruby Gulch Mining Co., 48 Mont. 65,
135 P. 913, 918. The term includes both the in-
tention to abandon and the act by which the
abandonment is carried into effect. Peachy v.
Frisco Gold Mines Co., D.C.Ariz., 204 F. 659, 668.
Abandonment takes place whenever locator leaves claim
without intention of holding it. Crane v. French, 39 Cal.
App.2d 642, 104 P.2d 53, 60. But mere absence from claim,
is not sufficient. Crane v. French, 39 Cal.App.2d 642, 104
P.2d 53, 60. And one co-owner's abandoning his interest
is not an "abandonment" of entire claim. Crane v.
French, 39 Ca1.App.2d 642, 104 P.2d 53, 60.
Motions
Motion not called to court's attention until final
hearing, Williams v. Smith, 149 Fla. 735, 6 So.2d
853, 854. Grounds not insisted on, Meador v. Now-
ell, 67 Ga.App. 564, 21 S.E.2d 312, 314; not argued
in brief, In re Horton's Estate, 154 Kan. 269, 118 P.
2d 527, 531. Rulings not urged on appeal, Spears v.
Brown Paper Mill Co., La.App., 9 So.2d 332, 334.
Admitting sufficiency of evidence to sustain ver-
dict, Copeland v. State, 66 Ga.App. 142, 17 S.E.2d
288, 289. But service of answer after making of
motion to strike out portions of a complaint was
not an "abandonment" of the motion. Russo v.
Signode Steel Strapping Co., Sup., 37 N.Y.S.2d
166.
Office
Abandonment of a public office is a species of
resignation, but differs from resignation in that
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resignation is a formal relinquishment, while
abandonment is a voluntary relinquishment
through nonuser. State v. Harmon, 115 Me. 268,
98 A. 804, 805.
It is not wholly a matter of intention, but may result
from the complete abandonment of duties of such a con-
tinuance that the law will infer a relinquishment. Wilk-
inson v. City of Birmingham, 193 Ala. 139, 68 So. 999, 1002.
It must be total, and under such circumstances as clearly
to indicate an absolute relinquishment; and whether an
officer has abandoned an office depends on his overt acts
rather than his declared intention. Parks v. Ash, 168 Ga.
868, 149 S.E. 207, 209. It implies nonuser, but nonuser does
not, of itself constitute abandonment. The failure to per
form the duties pertaining to the office must be with actual
or imputed intention on the part of the officer to abandon
and relinquish the office. The intention may be inferred
from the acts and conduct of the party, and is a question
of fact. Abandonment may result from an acquiescence
by the officer in his wrongful removal or discharge, but,
as in other cases of abandonment, the question of inten-
tion is involved. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696,
698.
Temporary absence is not ordinarily sufficient to consti-
tute an "abandonment of office". State v. Green, 206 Ark.
361, 175 S.W.2d 575, 577. Responding to mandatory call
for military service in emergency conditions, Caudel v.
Prewitt, 296 Ky. 848, 178 S.W.2d 22, 25. And failure of
former officers to assert right while decision of eligibility
of elected successors was pending, was not an "abandon-
ment" creating vacancy. State v. Levy Court of New Cas-
tle County, Del., 3 W.W.Harr. 554, 140 A. 642, 645.
Oil Wells
Where owner ceased working on well to work
elsewhere to procure money to do further work on
well, well was not abandoned. Jones v. Jos.
Greenspon's Son Pipe Corporation, 313 Ill.App.
651, 40 N.E.2d 561.
Patents
There may be an abandonment of a patent,
where the inventor dedicates it to the public use;
and this may be shown by his failure to sue in-
fringers, sell licenses, or otherwise make efforts
to realize a personal advantage from his patent.
Ransom v. New York, 4 Blatchf. 157, 20 Fed.Cas.
286.
Pleadings
The filing of a second amended complaint which
was complete in itself and which did not reserve
to itself any part of the original complaint or
first amended complaint constituted an "abandon-
ment" of the two former complaints. Seely v.
Gilbert, 16 Wash.2d 611, 134 P.2d 710, 712. Cross-
complainant by failing to take proper steps in
trial court to have judgment that was silent on
issues tendered by cross-complaint and answer
thereto corrected did not thereby "abandon" cross-
complaint. Brown v. National Life Ins. Co. of
Washington County, Vt., 112 Ind.App. 684, 46 N.E.
2d 246, 249.
Prescriptive Rights
Non-use alone is insufficient. Burkman v. City
of New Lisbon, 246 Wis. 547, 19 N.W.2d 311, 313;
Smelcer v. Rippetoe, 24 Tenn.App. 516, 147 S.W.2d
109, 113, 114.
Privileges
Witness before grand jury who answered ques-
tions and immediately asked to retract answers,
and thereupon asserted his privilege, did not
"abandon" right to claim the privilege. United
States v. Weisman, C.C.A.N.Y., 111 F.2d 260, 261.
Property
"Abandoned property" in a legal sense is that to
which owner has relinquished all right, title, claim,
and possession, with intention of not reclaiming it
or resuming its ownership, possession or enjoy-
ment. Jackson v. Steinberg, Or., 200 P.2d 376,
377, 378.
There must be concurrence of act and intent, that is, the
act of leaving the premises or property vacant, so that it
may be appropriated by the next comer, and the intention
of not returning. Cohn v. San Pedro, L. A. & S. L. R. Co.,
103 Cal.App. 496, 284 P. 1051, 1052. Relinquishment of all
title, possession, or claim; a virtual intentional throwing
away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d
699, 702. Actual relinquishment, gas in pipe was not aban-
doned. Hein v. Shell Oil Co., 315 Ill.App. 297, 42 N.E.2d
949, 952. Nor was a sewing machine and phonograph left
with landlady as security. Dickens v. Singer Sewing
Mach. Co., 140 So. 296, 298, 19 La.App. 735.
Property for Special Purposes
Moving of church to erect drilling rig held not
"abandonment of use for church purposes." Aban-
donment meant to wholly discontinue church use,
and additional use was not sufficient. Skipper v.
Davis, Tex.Civ.App., 59 S.W.2d 454, 457.
Merger of churches was not. Bridgeport-City Trust Co.
v. Bridgeport Hospital, 120 Conn. 27, 179 A. 92, 94. Nor
where intention was that nonconforming use as a fraterni-
ty house would be resumed. State ex rel. Morehouse v.
Hunt, 235 Wis. 358, 291 N.W. 745, 751, 752. Nor mere
cessation of a nonconforming use in zoned area for a rea-
sonable period. Beyer v. Mayor and Council of Baltimore
City, Md., 34 A.2d 765, 768, 769. Nor a discontinuance of
a garage during war while owner served in army and on
return postponed repossession for garage purposes due to
city's using building. State v. Murray, 195 Wis. 657, 219
N.W. 271, 272. But removal of manufacturing equipment
from manufacturing plant, was. Francisco v. City of Co-
lumbus, Ohio App., 31 N.E.2d 236, 243. And also disposing
of all machinery, taking down smokestack and using prop-
erty for storage purposes, notwithstanding vague intention
of resuming slaughter house business. Beyer v. Mayor and
City Council of Baltimore City, 182 Md. 444, 34 A.2d 765,
768, 769.
Dedicated use must wholly fail. Kirchen v. Remenga,
291 Mich. 94, 288 N.W. 344, 350, 351. Erection of buildings
on park lands without objection of adjoining owners was
not sufficient. Kirchen v. Remenga, 291 Mich. 94, 288 N.W.
344, 350, 351. Nor city's permitting a citizen's rock garden
on small portion of street improvement tract. Kendrick
V. City of St. Paul, 213 Minn. 283, 6 N.W.2d 449, 451. Nor
diverting parkway to roadway. Ford v. City of Detroit,
273 Mich. 449, 263 N.W. 425, 426. Nor tearing down school
building for salvaging material for erection of a waiting
station for school children. McCullough v. Swifton Consol.
School Dist., 202 Ark. 1074, 155 S.W.2d 353. Nor temporary
disuse of school when land was offered for sale, later
rescinded. Bernard v. Bowen, 214 N.C. 121, 198 S.E. 584.
Railroad Property
"Abandon" means to relinquish or give up with
intent of never again resuming or claiming one's
rights or interests in, to give up absolutely, to for-
sake entirely, to renounce utterly, to relinquish all
connection with or concern in. Capital Transit Co.
v. Hazen, 93 F.2d 250, 251, 68 App.D.C. 91. Aban-
donment did not mean a partial disuse with an in-
tention to complete station on a contingency, but
meant a final relinquishment, or giving up with-
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out intention of resuming. Wheeling & L. E. Ry.
Co. v. Pittsburgh & W. V. Ry. Co., C.C.A.Ohio, 33
F.2d WO, 392. And to constitute an "abandon-
ment" of right of way, there must be not only an
actual relinquishment of the property, but an in-
tention to abandon it. Abens v. Chicago, B. & Q.
R. Co., 388 Ill. 261, 57 N.E.2d 883, 887.
Nonuser is a fact in determining it, but, though contin-
ued for years, is not conclusive. Arlington Realty Co. v.
Keller, 105 N.J.Eq. 196, 147 A. 437, 438. Plowing up ser-
vient estate is not enough. Les v. Alibozek, 269 Mass. 153.
168 N.E. 919, 922, 66 A.L.R. 1094. Nor proposal to deliver
and receive freight by motortrucks. New York Dock Ry.
v Pennsylvania R. Co., D.C.Pa., 1 F.Supp. 20, 21. But
failure to maintain and use that part of railroad on land
conveyed constituted "abandonment." Atlantic Coast Line
R. Co. v. Sweat, 177 Ga. 698, 171 S.E. 123, 129.
Remedies
Election of one of two inconsistent remedies,
Lumber Mutual Casualty Ins. Co. of New York v.
Friedman, 176 Misc. 703, 28 N.Y.S.2d 506, 509.
Rights in General
The relinquishment of a right. It implies some
act of relinquishment done by the owner without
regard to any future possession by himself, or by
any other person, but with an intention to aban-
don. Dyer v. Sanford, 9 Mete., Mass., 395, 43 Am.
Dec. 399.
It Is properly confined to incorporeal hereditaments,
since legal rights once vested must be divested according to
law. But equitable rights may be abandoned. Great Falls
Co. v. Worster, 15 N.H. 412; Cox v. Colossal Cavern Co.,
210 Ky. 612, 276 S.W. 540; Inhabitants of School Dist. No.
4 v. Benson, 31 Me. 381, 52 Am. Dec. 618.
Ship and Freight
Act by which shipowner surrenders ship and
freight to a trustee for benefit of claimants. See
46 U.S.C.A. § 185; Ohio Transp. Co. v. Davidson
S. S. Co., 148 F. 185, 78 C.C.A. 319.
In France and other countries it is the surrender to a
person having a claim arising out of a contract made with
the master. American Transp. Co. v. Moore, 5 Mich. 368.
Taxing Power
Delegation of taxing power by legislature to
city was not "abandonment of taxing power".
Mouledoux V. Maestri, 197 La. 525, 2 So.2d 11, 16.
Trade-marks and Trade Names
There must be not only nonuser, but also an
intent to abandon. Rockowitz Corset & Brassiere
Corporation v. Madame X Co., 248 N.Y. 272, 162 N.
E. 76, 78; Manz v. Philadelphia Brewing Co., D.C.
Pa., 37 F.Supp. 79, 81. To give up use of trade-
marks permanently. Neva-Wet Corporation of
America v. Never Wet Processing Corporation,
277 N.Y. 163, 13 N.E.2d 755, 761.
Disuse not sufficient in itself. Sherwood Co. v. Sherwood
Distilling Co., 177 Md. 455, 9 A.2d 842, 845. Nor using
owner's name. Bunte Bros. v. Standard Chocolates, D.C.
Mass., 45 F.Supp. 478, 480. However, nonuser with ex-
tensive use by another is sufficient. Sherwood Co. v. Sher-
wood Distilling Co., 177 Md. 455, 9 A.2d 842, 845. But not
where receiver continuously operated trade-mark licensee's
property. American Dirigold Corporation v. Dirigold Met-
als Corporation. C.C.A.Mich., 125 F.2d 446, 454. Nor sale
of all physical assets of manufacturing company by trustee
in bankruptcy. Reconstruction Finance Corporation v. J.
G. Menihan Corporation, D.C.N.Y., 28 F.Supp. 920, 923.
Trusts
State aid for hospital, with stipulation for beds
for emergency cases, did not establish an "aban-
donment of trust". Noble v. First Nat. Bank of
Anniston, 241 Ala. 85, 1 So.2d 289, 291.
Water Rights
"'Abandonment," as applied to water rights may
be defined to be an intentional relinquishment
of a known right. It is not based on a time ele-
ment, and mere nonuser will not establish "aban-
donment" for any less time," at least, than statu-
tory period, controlling element in "abandonment"
being matter of intent. Hammond v. Johnson, 94
Utah 20, 66 P.2d 894, 899. To desert or forsake
right. The intent and an actual relinquishment
must concur. Central Trust Co. v. Culver, 23 Colo.
App. 317, 129 P. 253, 254. Concurrence of relin-
quishment of possession, and intent not to resume
it for beneficial use. Neither alone is sufficient.
Osnes Livestock Co. v. Warren, 103 Mont. 284, 62
P.2d 206, 211.
Not using water when there was no water in creek be-
cause of another user's obstruction of flow and appropria-
tion of all the water did not constitute. New Mexico Prod-
ucts Co. v. New Mexico Power Co., 42 N.M. 311, 77 P.2d
634, 641. Nor did milling company's permitting water's
use by upper irrigators. Hutchinson v. Stricklin, 146 Or.
285, 28 P.2d 225, 230. Nor permitting upper appropriators
to erect dam and store water. Irion v. Hyde, Mont., 81 P.
2d 353, 356. Nor change of place of use of decreed water
right. Harris v. Chapman, 51 Idaho 283, 5 P.2d 733, 737. Nor
failure to use all water to which entitled. Horse Creek
Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92
P.2d 572, 577. Use of only enough water to water stock.
because supply was insufficient to irrigate land. Federal
Land Bank v. Morris, 112 Mont. 445, 116 P.2d 1007, 1010.
But right to use a particular quantity of water may be
abandoned by failure to apply such water to a beneficial
use for an unreasonable period of time. Cundy v. Weber,
68 S.D. 214, 300 N.W. 17, 22.
Wife
Abandonment justifying divorce is a voluntary,
unjustified, and final separation of one of married
parties from the other, accompanied by an inten-
tion to terminate the marital relation, or an un-
justified refusal to resume suspended cohabita-
tion, as where husband left his wife because his
children by former marriage could not live peace-
ably with second wife. Schwartz v. Schwartz,
158 Md. 80, 148 A. 259, 263.
Refusal by husband of request by sick wife without
means of support, to return to home held "abandonment"
as respects disorderly conduct. People v. Schenkel, 252
N.Y.S. 415, 418, 140 Misc. 843. Contra where separation
agreement existed. People v. Gross, 291 N.Y.S. 597, 601,
161 Misc. 514. Where parties separated by agreement, and
husband, in lieu of periodic payments for wife's support,
made conveyance constituting valuable consideration, held
not "abandonment" as respects husband's statutory right
against wife's will. In re McCann's Estate, 281 N.Y.S. 445,
155 Misc. 763; or even if wife was justified in leaving hus-
band on account of his cruel treatment, there must be a
desertion without consent. In re Stolz' Estate, 260 N.Y.S.
906, 145 Misc. 799. But while there can be no "desertion"
for divorce where parties are apart by consent, yet there
may be an "abandonment" as respects separate mainte-
nance, although the separation originated and continued
by consent of parties. Pierson v. Pierson, 189 A. 391, 395,
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ABATEMENT
15 N.J.Misc. 117. And as respects maintenance, husband's
conduct rendering wife's condition unendurable constitutes
"abandonment." Carder v. Carder, 227 Mo.App. 1005, 60
S.W.2d 706. Cruel treatment, Fallon v. Fallon, 111 N.J.
Eq. 512, 162 A. 406, 408. Husband's refusal of wife's
request to resume living with her, Clark v. Clark, 176 A.
81, 83, 13 N.J.Misc. 49; or refusal to receive wife at his
residence, is an "abandonment" of her. Hockaday v.
Hockaday, 182 La. 88, 161 So. 164. But not a husband's
removal from wife's home after wife had instituted sep-
aration action, Kenneson v. Kenneson, 36 N.Y.S.2d 676, 685,
178 Misc. 832; or where husband moved out on command
of wife's father. Anonymous v. Anonymous, 24 N.Y.S.2d 613,
618. Mere failure to support wife is not an abandonment
within Divorce Act. Biddle v. Biddle, 104 N.J.Eq. 313, 145
A. 639, 640; but failing to provide wife with necessities,
etc., is.  Cooper v. Cooper, 176 Md. 695, 4 A.2d 714, 716.
And convict sentenced for life did not abandon wife. In
re Lindewall's Will, 18 N.Y.S.2d 281, 284, 259 App. Div. 196.
ABANDONMENT FOR TORTS. In the civil law.
The relinquishment of a slave or animal who had
committed a trespass to the person injured, in dis-
charge of the owner's liability for such trespass or
injury. Just. Inst. 4, 8, 9. A similar right exists
in Louisiana. Fitzgerald v. Ferguson, 11 La.Ann.
396.
ABANDUN, ABANDUM, or ABANDONUM. Any-
thing sequestered, proscribed, or abandoned.
Abandon, i. e., in bannum res missa, a thing ban-
ned or denounced as forfeited or lost, whence to
abandon, desert, or forsake, as lost and gone.
Cunningham; Cowell.
ABARNARE. Lat. To discover and disclose to a
magistrate any secret crime. Leges Canuti, cap.
10.
ABATABLE NUISANCE. A nuisance which is
practically susceptible of being suppressed, or ex-
tinguished, or rendered harmless, and whose con-
tinued existence is not authorized under the law.
Fort Worth & Denver City Ry. Co. v. Muncy, Tex.
Civ.App., 31 S.W.2d 491, 494.
ABATAMENTUM. L. Lat. In old English law.
An abatement of freehold; an entry upon lands
by way of interposition between the death of the
ancestor and the entry of the heir. Co. Litt. 277a;
Yel. 151.
ABATARE. To abate. Yel. 151.
ABATE. To throw down, to beat down, destroy,
quash. 3 Shars. Bla. Com. 168; Klamath Lum-
ber Co. v. Bamber, 142 P. 359, 74 Or. 287. , To do
away with or nullify or lessen or diminish, In re
Stevens' Estate, Cal.App., 150 P.2d 530, 534; to
bring entirely down or demolish, to put an end to,
to do away with, to nullify, to make void, Sparks
Milling Co. v. Powell, 283 Ky. 669, 143 S.W.2d 75,
77.
See, also, Abatement; Abatement and Revival.
ABATEMENT. A reduction, a decrease, or a
diminution. The Vestris, D.C.N.Y., 53 F.2d 847,
852.
A judgment afforded a defense by way of abatement.
Panos v. Great Western Packing Co., Cal.App, , 126 P.2d
889, 892.
Contracts
A reduction made by the creditor for the
prompt payment of a debt due by the payor or
debtor. Wesk. Ins. 7.
Debts
In equity, when equitable assets are insufficient
to satisfy fully all the creditors, their debts must
abate in proportion, and they must be content with
a dividend, for cequitas est quasi cequalitas.
Freehold
The unlawful entry upon and keeping posses-
sion of an estate by a stranger, after the death
of the ancestor and before the heir or devisee
takes possession. Such an entry is technically
called an "abatement," and the stranger an "aba-
tor." It is, in fact, a figurative expression, de-
noting that the rightful possession or freehold of
the heir or devisee is overthrown by the unlawful
intervention of a stranger. Abatement differs
from intrusion, in that it is always to the preju-
dice of the heir or immediate devisee, whereas the
latter is to the prejudice of the reversioner or
remainder-man; and disseisin differs from them
both, for to disseise is to put forcibly or fraudu-
lently a person seised of the freehold out of pos-
session. Brown v. Burdick, 25 Ohio St. 268. By
the ancient laws of Normandy, this term was
used to signify the act of one who, having an ap-
parent right of possession to an estate, took pos-
session of it immediately after the death of the
actual possessor, before the heir entered. (How-
ard, Anciennes Lois des Francais, tome 1, p. 539.)
Legacies
A proportional diminution or reduction of the
pecuniary legacies, when the funds or assets out
of which such legacies are payable are not suffi-
cient to pay them in full. Ward, Leg. p. 369, c. 6,
§ 7; 1 Story, Eq. Jur. § 555; 2 Bl. Comm. 512, 513;
In re 'Hawgood's Estate, 37 S.D. 565, 159 N.W.
117, 123. Legacy accepted in lieu of dower. In re
Hartman's Estate, 233 Iowa 405, 9 N.W.2d 359, 362.
Nuisance
The removal of a nuisance. 3 Bla. Comm. 5.
See Nuisance.
Taxes and Duties
A drawback or rebate allowed in certain cases
on the duties due on imported goods, in considera-
tion of their deterioration or damage suffered
during importation, or while in store. A diminu-
tion or decrease in the amount of tax imposed
upon any person. Rogers v. Gookin, 198 Mass.
434, 85 N.E. 405 (real estate taxes); Central Na-
tional Bank v. City of Lynn, 156 N.E. 42 (Shares
in national banks) 259 Mass. 1.
As applied to taxation, it presupposes error or mistake
in assessment. Gulf States Steel Co. v. U. S., C.C.A.Ala.,
56 F.2d 43, 46.
Abatement of taxes relieves property of its share of the
burdens of taxation after the assessment has been made
and the tax levied. Sheppard v. Hidalgo County, 126 Tex.
550, 83 S.W.2d 649, 657.
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ABATEMENT
ABATEMENT AND REVIVAL
Actions at Law
As used in reference to actions at law, word
abate means that action is utterly dead and can-
not be revived except by commencing a new ac-
tion. First Nat. Bank v. Board of Sup'rs of Harri-
son County, 221 Iowa 348, 264 N.W. 281, 106 A.L.R.
566.
The overthrow of an action caused by the de-
fendant's pleading some matter of fact tending to
impeach the correctness of the writ or declaration,
which defeats the action for the present, but does
not debar the plaintiff from recommencing it in a
better way. 3 Bla. Comm. 301; 1 Chit. Pl. (6th
Lond. Ed.) 446; Guild v. Richardson, 6 Pick.
(Mass.) 370; Wirtele v. Grand Lodge A. 0. U. W.,
111 Neb. 302, 196 N.W. 510. See Plea in Abate-
ment.
To put a final end to suit, Dodge v. Superior Court in
and for Los Angeles County, 139 Cal.App. 178, 33 P.2d 695,
696; overthrow of pending action apart from cause of
action, Burnand v. Irigoyen, 56 Cal.App.2d 624, 133 P.2d
3, 6.
On plaintiff's death, Piukkula v. Pillsbury Astoria
Flouring Mills Co., 150 Or. 304, 44 P.2d 162, 99 A.L.R. 259.
Mere lapse of time between the death of a party and the
taking of necessary steps to continue the action by or
against the heir or personal representative does not work
an abatement, Whaley v. Slater, 202 S.C. 182, 24 S.E.2d
266, 267.
Cause of Action
Destruction of cause of action. In re Thomas-
son, Mo., 159 S.W.2d 626, 628.
Chancery Practice
It differs from an abatement at law in this:
that in the latter the action is entirely dead and
cannot be revived; but in the former the right to
proceed is merely suspended, and may be revived;
F. A. Mfg. Co. v. Hayden & Clemons, C.C.A.Mass.,
273 F. 374; Mutual Ben. Health & Accident Ass'n
v. Teal, D.C.S.C., 34 F.Supp. 714, 716.
In England, declinatory pleas to the jurisdiction and
dilatory to the persons were (prior to the judicature act)
sometimes, by analogy to common law, termed "pleas In
abatement."
Declinatory and dilatory pleas, see Story, Eq. Pl. § 708.
Death of one of parties, Geiger v. Merle, 360 Ill. 497, 196
N.E. 497, 502. Want of proper parties, 2 Tidd Pr. 932;
Story, Eq.P1. § 354; Witt v. Ellis, 2 Cold., Tenn., 38; peti-
tion for widow's allowance, In re Samson's Estate, 142 Neb.
556, 7 N.W.2d 60, 62, 144 A.L.R. 264.
ABATOR. In real property law, a stranger who,
having no right of entry, contrives to get posses-
sion of an estate of freehold, to the prejudice of
the heir or devisee, before the latter can enter,
after the ancestor's death. Litt. § 397. In the
law of torts, one who abates, prostrates, or de-
stroys a nuisance.
ABATUDA. Anything diminished. Moneta aba-
tuda is money clipped or diminished in value.
Cowell; Dufresne.
ABAVIA. Lat. In the civil law. A great-great-
grandmother. Inst. 3, 6, 4; Dig. 38, 10, 1, 6;
Bract. fol. 68b.
ABAVITA. A great-great-grandfather's sister.
Bract. fol. 68b. This is a misprint for abamita
(q. v.). Burrill.
ABAVUNCULUS. Lat. In the civil law. A great-
great-grandmother's brother (avavice frater).
Inst. 3, 6, 6; Dig. 38, 10, 3; Calvinus, Lex. Called
avunculus maximus. Id. 38, 10, 10, 17. Called by
Bracton and Fleta abavunculus magnus. Bract.
fol. 68b; Fleta, lib. 6, c. 2, § 19.
ABAVUS. Lat. In the civil law. A great-great-
grandfather. Inst. 3, 6, 4; Dig. 38, 10, 1, 6; Bract.
fol. 67a.
ABBACINARE. To blind by placing a burning
basin or red-hot irons before the eye's. A form of
punishment in the Middle Ages. Also spelt
abacinare. The modern Italian is spelt with two
b's, and means to blind. Abbacination. Blinding
by placing burning basin or red-hot irons before
the eyes. See Abbacinare.
ABBACY. The government of a religious house,
and the revenues thereof, subject to an abbot, as
a bishopric is to a bishop. Cowell. The rights
and privileges of an abbot.
ABBEY. A monastery or nunnery for the use of
an association of religious persons, having an ab-
bot or abbess to preside over them.
ABBOT. A prelate in the 13th century who had
had an immemorial right to sit in the national
assembly. Taylor, Science of Jurispr. 287.
ABBOT, ABBAT. The spiritual superior or gover-
nor of an abbey. Feminine, Abbess.
ABBREVIATE OF ADJUDICATION. In Scotch
law. An abstract of the decree of adjudication,
and of the lands adjudged, with the amount of the
debt. Adjudication is that diligence (execution)
of the law by which the real estate of a debtor is
adjudged to belong to his creditor in payment of a
debt; and the abbreviate must be recorded in the
register of adjudications.
ABBREVIATIO PLACITORUM. An abstract of
ancient judicial records, prior to the Year Books.
See Steph. Pl. (7th Ed.) 410.
ABBREVIATIONS. Shortened conventional ex-
pressions, employed as substitutes for names,
phrases, dates, and the like, for the saving of
space, of time in transcribing, etc. Abbott.
The abbreviations in common use in modern times con-
sist of the initial letter or letters, syllable or syllables, of
the word. Anciently, also, contracted forms of words,
obtained by the omission of letters intermediate between
the initial and final letters were much in use. These lat-
ter forms are now more commonly designated by the term
contraction.
For Table of Abbreviations, see Appendix.
ABBREVIATIONUM ILLE NUMERUS ET SEN-
SUS ACCIPIENDUS EST, UT CONCESSIO NON
SIT INANIS. In abbreviations, such number and
sense is to be taken that the grant be not made
void. 9 Coke, 48.
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ABETTOR
ABEREMURDER. (From Sax. abere, apparent,
notorious; and mord, murder.) Plain or down-
Black's Law Dictionary Revised 4th Ed.-2
17
ABBREVIATORS. In ecclesiastical law. Officers
whose duty it is to assist in drawing up the Pope's
briefs, and reducing petitions into proper form to
be converted into papal bulls.
ABBROCHMENT, or ABBROACHMENT. The act
of forestalling a market, by buying up at whole-
sale the merchandise intended to be sold there,
for the purpose of selling it at retail. See Fore-
stalling the Market.
ABBUTTALS. See Abuttals.
ABDICATION. The act of a sovereign in re-
nouncing and relinquishing his government or
throne, so that either the throne is left entirely
vacant, or is filled by a successor appointed or
elected beforehand.
Also, where a magistrate or person in office
voluntarily renounces or gives it up before the
time of service has expired.
The act of abdicating ; giving up of office, power or au-
thority, right or trust; renunciation. McCormick v. Eng-
strom, 119 Kan. 698, 241 P. 685, 688.
Abdication of rights to property may constitute an
assignment. In re Johnston's Estate, 186 Wis. 599, 203
N.W. 376, 377.
It differs from resignation, in that resignation is made
by one who has received his office from another and
restores it into his hands, as an inferior into the hands of
a superior; abdication is the relinquishment of an office
which has devolved by act of law. It is said to be a
renunciation, quitting, and relinquishing, so as to have
nothing further to do with, a thing, or the doing of such
actions as are inconsistent with the holding of it. Cham-
bers.
ABDITORIUM. An abditory or hiding place, to
hide and preserve goods, plate or money. Jacob.
ABDUCTION. In criminal law. The offense of
taking away a wife, child, or ward, by fraud and
persuasion, or open violence. 3 Bl.Comm. 139-141;
State v. Chisenhall, 106 N.C. 676, 11 S.E. 518 (fe-
male under 14) ; State v. Hopper, 186 N.C. 405,
119 S.E. 769, 772 (wife).
To take away surreptitiously by force in kid-
napping. Doss v. State, 220 Ala. 30, 123 So. 231,
232, 68 A.L.R. 712.
The unlawful taking or detention of any female
for purposes of marriage, concubinage, or prosti-
tution. 4 Steph.Com. 84; People v. Crotty, 55
Hun, 611, 9 N.Y.S. 937. In many states this of-
fense is created by statute and in most cases ap-
plies to females under a given age.
By statute in some states, abduction includes
the withdrawal of a husband from his wife, as
where another woman alienates his affection and
entices him away and causes him to abandon his
wife. Humphrey v. Pope, 122 Cal. 253, 54 P. 847.
ABEARANCE. Behavior; as a recognizance to
be of good abearance signifies to be of good be-
havior. 4 Bl.Comm. 251, 256.
right murder, as distinguished from the less
heinous crime of manslaughter, or chance medley.
Spelman; Cowell; Blount.
ABESSE. Lat. In the civil law. To be absent;
to be away from a place. Said of a person who
was extra continentia urbis, (beyond the suburbs
of the city.)
ABET. A French word combined of two words
"a" and ."beter"—to bait or excite an animal. It
includes knowledge of the wrongful purpose of the
perpetrator and counsel and encouragement in
the crime. People v. Terman, 4 Cal.App.2d 345, 40
P.2d 915, 916.
To encourage, incite, or set another on to com-
mit a crime. This word is always applied to aid-
ing the commission of a crime. To abet another
to commit a murder is to command, procure, or
counsel him to commit it, Old Nat. Brev. 21; Co.
Litt. 475; to command, procure, counsel, encour-
age, induce, or assist, Short v. Commonwealth, 240
Ky. 477, 42 S.W.2d 696, 697; to encourage, counsel,
induce, or assist, State v. Watts, Nev., 296 P. 26.
To facilitate the commission of a crime, promote
its accomplishment, or help in advancing or bring-
ing it about. State v. Lord, 42 N.M. 638, 84 P.2d 80,
86. It includes knowledge of wrongful purpose of
perpetrator. Daniels v. State, 58 Ga.App. 599,
199 S.E. 572, 577. State v. Kneedy, 232 Iowa 21,
3 N.W.2d 611, 615. People v. Stein, 55 Cal.App.2d
417, 130 P.2d 750, 751 (permitting wife to remain
in house of prostitution).
See Abettor; Aid and Abet.
"Aid" and "abet" are nearly synonymous terms as gen-
erally used; but, strictly speaking, the former term does
not imply guilty knowledge or felonious intent, whereas
the word "abet" includes knowledge of the wrongful pur-
pose and counsel and encouragement in the commission of
the crime. Forgery, People v. Dole, 122 Cal. 486, 55 P.
581, 68 Am.St.Rep. 50; Raiford v. State, 59 Ala. 106;
Violation of law against free passes, State v. Ankrom, 86
W.Va. 570, 103 S.E. 925, 927; Crime against nature, State
v. Start, 65 Or. 178, 132 P. 512, 513; Robbery, People v.
Powers, 293 Ill. 600, 127 N.E. 681, 682.
Instigate synonymous (malicious prosecution) Hughes v.
Van Bruggen, 44 N.M. 534, 105 P.2d 494, 499.
"Abet" smacks more of technical terminology than does
the word "aid", but it is almost synonymous with the
word "aid". Assault and battery, Gentry v. State, 65 Ga.
App. 100, 15 S.E.2d 464, 465.
ABETTATOR. L. Lat. In old English law. An
abettor. Fleta, lib. 2, c. 65, § 7. See Abettor.
ABETTOR. In criminal law. An instigator, or
setter on; one who promotes or procures a crime
to be committed. Old Nat.Brev. 21. One who
commands, advises, instigates, or encourages an-
other to commit a crime; a person who, being
present or in the neighborhood, incites another to
commit a crime, and thus becomes a principal.
See State v. Baldwin, 193 N.C. 566, 137 S.E. 590,
591.
Must have rendered assistance or encouragement to the
perpetrator of the crime with knowledge of his felonious
intent; offense of "aiding and abetting" being committed
by person present who does some act or speaks some word
aiding the actual perpetrator of the crime. Combs v.
Commonwealth, 224 Ky. 653, 6 S.W.2d 1082, 1083. Must

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ABETTOR
aid or commit some overt act or act of encouragement.
Long v. Commonwealth, 288 Ky. 83, 155 S.W.2d 246, 247.
One who so far participates in the commission of the
offense as to be present for the purpose of assisting if
necessary. State v. Epps, 213 N.C. 709, 197 S.E. 580, 583.
The distinction between abettors and accessories is the
presence or absence at the commission of the crime.
Cowell; Fleta, lib. 1, c. 34. Presence and participation are
necessary to constitute a person an abettor. 4 Sharsw.Bla.
Comm. 33; Bradley v. Commonwealth, 201 Ky. 413, 257 S.
W. 11, 13. Common design to take life not necessary.
State v. Lord, 42 N.M. 638, 84 P.2d 80, 86. Not essential
that there should be a prearrangement or mutual under-
standing or concert of action. McKinney v. • Common-
wealth, 284 Ky. 16, 143 S.W.2d 745, 747, 748.
ABEYANCE. In the law of estates. In expecta-
tion, remembrance, and contemplation of law;
the condition of a freehold when there is no per-
son in being in whom it is vested.
In such cases the freehold has been said to be in nubibus
(in the clouds), McKown v. McKown, 93 W.Va. 689, 117
S.E. 557, 559; in pendenti (in suspension) ; and in gremio
legis (in the bosom of the law). Where there is a tenant
of the freehold, the remainder or reversion in fee may
exist for a time without any particular owner, in which
case it is said to be in abeyance; Lyle v. Richards, 9 S.
& R. Pa. 367; 3 Plowd. 29 a, b, 35 a; 1 Washb.R.P. 47.
Franchise of a corporation; Trustees of Dartmouth
College v. Woodward, 4 Wheat. (U. S.) 691, 4 L.Ed. 629.
Personal property as in case of a vessel captured at sea
from its captors until it becomes invested with the char-
acter of a prize; 1 Kent, 102; 1 C.Rob.Adm. 139; 3 id.
97, n.; or the rights of property of a bankrupt, pending
adjudication; Bank v. Sherman, 101 U.S. 403, 25 L.Ed.
866.
A condition of being undetermined. Fenn v. American
Rattan & Reed Mfg. Co., 75 Ind. App. 146, 130 N.E. 129, 130.
(Seller stating its inability to promise to deliver.)
Sales to third parties, of property acquired by county at
tax sale, being held in "abeyance", means that certain
rights or conditions are in expectancy. Willard v. Ward
County, 72 N.D. 291, 6 N.W.2d 566, 568.
ABIATICUS, or AVIATICUS. L. Lat. In feudal
law. A son's son; a grandson in the male line.
Du Cange, Avius; Spelman; Lib.Feud., Baraterii,
tit. 8, cited Id.
ABIDE. To accept the consequences of ; to rest
satisfied with; to wait for.
With reference to an order, judgment, or decree of a
court, to perform, to execute. Jackson v. State, 30 Kan.
88, 1 P. 317. Where a statute provides for a recognizance
"to abide the judgment of the court," one conditioned "to
await the action of the court" is not sufficient; Wilson v.
State, 7 Tex.App. 38. Defendant does not "abide the
judgment" until costs of appeal are paid. Ex parte Til-
lery, 22 Ala.App. 193, 114 So. 15. And see State v. Greg-
ory, 205 Iowa, 707, 216 N.W. 17, 19.
Defendant's presence in courtroom not a compliance
with supersedeas bond conditioned to "abide final judg-
ment," where there was no formal offer to surrender
defendant into court's custody. American Surety Co. of
New York v. State, 50 Ga.App. 777, 179 S.E. 407.
To abide and satisfy is used to express the execution or
performance of a judgment or order by carrying it into
complete effect, Erickson v. Elder, 34 Minn. 371, 25 N.W.
804, Cf. Woolfolk v. Jones, D.C.Va., 216 F. 807, 809.
Where costs are to abide final result, "abide" is synon-
ymous with conform to. Getz v. Johnston, 145 Md. 426, 125
A. 689, 691.
To abide order respecting seized property, means to per-
form, obey, conform to. Cantor v. Sachs, 18 Del.Ch. 359,
162 A. 73, 84.
ABIDING BY. In Scotch law. A judicial declara-
tion that the party abides by the deed on which
he founds, in an action where the deed or writing
is attacked as forged. Pat.Comp.. It has the ef-
fect of pledging the party to stand the conse-
quences of founding on a forged deed. Bell.
"Abide by" means to adhere to, to submit to, to
obey, to accept the consequences of. Detroit
Fidelity & Surety Co. v. U. .S., C.C.A.Ohio, 36 F.2d
682, 683. (Recognizance)
To abide by an award means to await the award with-
out revoking the submission. It does not mean to "acqui-
esce in" or "not dispute," in the sense of not being at
liberty to contest the validity of the award when made,
Hunt v. Wilson, 6 N.H. 36; Quimby v. Melvin, 35 N.H.
198; Weeks v. Trask, 81 Me. 127, 16 A. 413, 2 L.R.A. 532.
ABIDING CONVICTION. A definite conviction of
guilt derived from a thorough examination of the
whole case. Hopt v. Utah, 7 S.Ct. 614, 120 U.S.
439, 30 L.Ed. 708. A settled or fixed conviction.
Davis v. State, 8 Ala.App. 147, 62 So. 1027, 1033.
People v. Castro, 68 Cal.App.2d 491, 157 P.2d 25,
30.
ABIDING FAITH. Belief or confidence in the
guilt of one accused of crime which remains or
continues in the minds of the jury. Gray v. State.
56 Okl.Cr. 208, 38 P.2d 967, 970.
ABIGEATORES. See Abigeus.
ABIGEATUS. Lat. In the civil law. The offense
of stealing or driving away cattle. See Abigeus.
ABIGEI. See Abigeus.
ABIGERE. Lat. In the civil law. To drive away.
Applied to those who drove away animals with
the intention of stealing them. Applied, also, to
the similar offense of cattle stealing on the borders
between England and Scotland. See Abigeus.
To drive out; to expel by force; to produce
abortion. Dig. 47, 11, 4.
ABIGEUS. Lat. (P1., abigei, or more rarely
abigeatores.) In the civil law. A stealer of cat-
tle; one who drove or drew away (subtraxit)
cattle from their pastures, as horses or oxen from
the herds, and made booty of them, and who fol-
lowed this as a business or trade.
The term was applied also to those who drove away the
smaller animals, as swine, sheep, and goats. In the latter
case, it depended on the number taken, whether the
offender was fur (a common thief) or abigeus. But the
taking of a single horse or ox seems to have constituted
the crime of abigeatus. And those who frequently did this
were clearly abigei, though they took but an animal or
two at a time. Dig. 47, 14, 3, 2. See Cod. 9, 37; Nov. 22,
c. 15, § 1; 4 Bl.Comm. 239.
ABILITY. When the word is used instatutes, it
is usually construed as referring to pecuniary
ability, as in the construction of Tenterden's Act
(q. v.) ; 1 M. & W. 101.
Contemplates earning capacity as well as property actu-
ally owned, to support abandoned wife; State v. Witham,
70 Wis. 473, 35 N.W. 934, Contra, Washburn v. Washburn, 9
Cal. 475.
The ability to buy, required in a purchaser as a condi-
tion to the broker's right to a commission, is the financial
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ability to meet the required terms of the sale, and does
not mean solvency or ability to respond in damages for a
breach of the contract. Stewart v. Sisk, 29 Ga.App. 17, 114
S.E. 71. See Able to Purchase.
A voter's "ability to read" within meaning of election
statutes is satisfied if he can read in a reasonably intelli-
gent manner sentences composed of words in common use
and of average difficulty, although each word may not be
always accurately pronounced, and "ability to write" is
satisfied if he can by use of alphabetical signs express in a
fairly legible way words of common use and average diffi-
culty, though each word may not be accurately spelled.
Williams v. Hays, 175 Ky. 170, 193 S.W. 1046, 1047. But the
mere ability to write one's name and post office address,
and nothing more, is insufficient. Murrel v. Allen, 180 Ky.
604, 203 S.W. 313, 314.
ABISHERING, or ABISHERSING. Quit of
amercements. It originally signified a forfeiture
or amercement, and is more properly mishering,
mishersing, or miskering, according to Spelman.
It has since been termed a liberty of freedom, be-
cause, wherever this word is used in a grant, the
persons to whom the grant is made have the for-
f•itures and amercements of all others, and are
themselves free from the control of any within
their fee. Termes de la Ley, 7.
ABJUDICATIO. In old English law. The depriv-
ing of a thing by the judgment of a court; a
putting out of court; the same as forisjudicatio,
forjudgment, forjudger. Co.Litt. 100a, b; Townsh.
Pl. 49. A removal from court. Calvinus, Lex.
Used to indicate an adverse decision in a writ
of right: Thus, the land is said to be abjudged
from one of the parties and his heirs. 2 Poll. &
Maitl. 62.
ABJURATION. A renunciation or abandonment
by or upon oath.
The oath by which any person holding office in England
was formerly obliged to bind himself not to acknowledge
any right in the Pretender to the throne of England; 1
Bla.Com. 368; 13 and 14 W. III, c. 6, repealed by 30 and
31 Vic. c. 59.
It also denotes an oath abjuring certain doctrines of the
church of Rome.
ABJURATION OF ALLEGIANCE. A naturalized
citizen of the United States, must declare that he
doth renounce and abjure all allegiance and fideli-
ty which he owes to any foreign prince, state, etc.
8 U.S.C.A. § 735.
ABJURATION OF THE REALM. In ancient
English law. A renunciation of one's country, a
species of self-imposed banishment, under an oath
never to return to the kingdom unless by permis-
sion. 4 Bl.Comm. 332; Avery v. Everett, 110 N.Y.
317, 18 N.E. 148, 1 L.R.A. 264. See Abjure.
ABJURE. To renounce, or abandon, by or upon
oath. See Abjuration.
A departure from the state without the intention of
returning, and not a renunciation of one's country, upon
an oath of perpetual banishment, as the term originally
implied. Mead v. Hughes, 15 Ala. 148, 1 Am.Rep. 123.
ABLE-BODIED. As used in a statute relating to
service in the militia, this term does not imply an
ABNEPOS
absolute freedom from all physical ailment. It
imports an absence of those palpable and visible
defects which evidently incapacitate the person
from performing the ordinary duties of a soldier.
Darling v. Bowen, 10 Vt. 152. Ability to perform
ordinary labor is not the test. Town of Marl-
borough v. Sisson, 26 Conn. 57.
ABLE SEAMAN. A grade of merchant seamen.
46 U.S.C.A. § 672.
ABLE TO EARN. The phrase in the Workmen's
Compensation Act in reference to wages does not
mean the maximum sum earned in any one week,
but a fair average of the weekly wages which an-
employee is able to earn covering a sufficient
period of time to determine his earning capacity.
Reeves v. Dietz, 1 La.App. 501, 505. See also, Mt.
Olive & Staunton Coal Co. v. Industrial Commis-
sion, 301 Ill. 521, 134 N.E. 16. Amount one is
capable of earning if employed. Ferrara v. Clif-
ton Wright Hat Co., 125 Conn. 140, 3 A.2d 842, 843.
Ability to obtain and hold employment means that the
person referred to is either able or unable to perform the
usual duties of whatever employment may be under con-
sideration, in the manner that such duties are customarily
performed by the average person engaged in such employ-
ment. Kinyon v. Kinyon, 230 Mo.App. 623, 71 S.W.2d 78,
82.
ABLE TO PURCHASE "Ability" in sales con-
tracts, dependent on ability to purchase, usually
means financial ability. Anderson v. Craig, 111
Mont. 182, 108 P.2d 205, 206; House v. Hornburg,
Sup., 39 N.Y.S.2d 20, 22. Purchaser must have
financial ability and legal capacity to acquire
land. Campbell v. Hood, Tex.Com.App., 35 S.W.2d
93, 95, 85 A.L.R. 266.
Purchaser is able to purchase, as respects broker's
right to commission, if he is financially able to command
the necessary funds to close the deal within the time
required. Hersh v. Garau, 218 Cal. 460, 23 P.2d 1022.
Even though part of the money must be obtained on the
purchased property itself. Pellaton v. Brunski, 69 Cal.
App. 301, 231 P. 583, 584. But see Bateman v. Richard,
105 Okl. 272, 232 P. 443, 445; and Reynor v. Mackrill, 181
Iowa 210, 164 N.W. 335, 1 A.L.R. 523, holding that a
person, to be able to purchase, must have the money for
the cash payment, and not merely property on which he
could raise it. See, also, Peters v. Mullins, 211 Ky. 123,
277 S.W. 316, 317. See Financially Able.
ABLEGATI. Papal ambassadors of the second
rank, who are sent to a country where there is
not a nuncio, with a less extensive commission
than that of a nuncio. This title is equivalent to
envoy.
ABLOCATIO. A letting out to hire, or leasing for
money. Calvin. Sometimes used in the English
form "ablocation."
ABMATERTERA. Lat. In the civil law. A great-
great-grandmother's sister, (abavice soror). Inst.
3, 6, 6; Dig. 38, 10, 3. Called matertera maxima.
Id. 38, 10, 10, 17. Called, by Bracton, abmatertera
magna. Bract. fol. 68b.
ABNEPOS. Lat. A great-great-grandson. The
grandson of a grandson or granddaughter. Cal-
vinus, Lex.
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ABNEPTIS
ABNEPTIS. Lat. A great-great-granddaughter.
The granddaughter of a grandson or granddaugh-
ter. Calvinus, Lex.
ABODE. One's home; habitation; place of dwell-
ing; or residence. Ordinarily means "domicile."
Hanson v. Williams, 170 Ga. 779, 154 S.E. 240, 242.
Living place impermanent in character. Fowler
v. Fowler, 156 Fla. 316, 22 So.2d 817, 818. Evans
v. Evans, 141 Fla. 860, 194 So. 215, 217. The place
where a person dwells. Dorsey v. Brigham, 177
Ill. 250, 52 N.E. 303, In re Erickson, 18 N.J.Misc.
5, 10 A.2d 142, 146.
Residence of a legal voter. Fry's Election Case, 71 Pa.
302, 10 Am.Rep. 698; Dale v. Irwin, 78 Ill. 181; Pope v.
Board of Election Com'rs, 370 Ill. 196, 18 N.E.2d 214, 216.
Fixed place of residence for the time being. Augustus
Co, for Use of Bourgeois v. Manzella, 19 N.J.Misc. 29, 17
A.2d 68, 70; Hudson v. Birmingham Water Works Co., 238
Ala. 38, 189 So. 72, 73. For service of process, one's fixed
place of residence for the time being. State ex rel. Mer-
ritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147; Kurilla v.
Roth, 132 N.J.L. 213, 38 A.2d 862, 864.
ABOGADO. Sp. An advocate. See Bozero,
ABOLISH. To do away with wholly; to annul.
Webster. To dispense with. Alexander v. City of
Lampasas, Tex.Civ.App., 275 S.W. 614, 616. Put
an end to. Stretch v. Murphy, 166 Or. 439, 112 P.
2d 1018, 1021.
Imports absolute destruction, having its root in the
Latin word "abolere," meaning to destroy utterly. Applies
particularly to things of a permanent nature, such as
institutions, usages, customs, as the abolition of slavery.
Pondelick v. Passaic County, 111 N.J.Law 187, 168 A. 146,
147.
ABOLITION. The destruction, annihilation, abro-
gation, or extinguishment of anything. Peterson
v. Pratt, 183 Iowa 462, 167 N.W. 101. Also the
leave given by the sovereign or judges to a crim-
inal accuser to desist from further prosecution.
25 Hen. VIII, c. 21.
In the Civil, French and German law, abolition is used
nearly synonymously with pardon, remission, grace. Dig.
39, 4, 3, 3. There is, however, this difference : grace is
the generic term; pardon, according to those laws, is the
clemency which the prince extends to a man who has par-
ticipated in a crime, without being a principal or accom-
plice; remission is made in cases of involuntary homicides,
and self-defence. Abolition is used when the crime can-
not be remitted. The prince then may, by letters of aboli-
tion, remit the punishment, but the infamy remains, un-
less letters of abolition have been obtained before sentence.
Encycl. de D'Alembert.
Abolition of position or office, Rexstrew v. City of Hunt-
ington Park, Cal.App., 120 P.2d 136, 142. Positions of phy-
sicians and dentists, Lewin v. La Guardia, 22 N.Y.S.2d 409,
411, 175 Misc. 165. Lay-off of court attendant, Pondelick
v. Passaic County, 111 N.J.L. 187, 168 A. 146, 147. Trans-
fer not an abolition of office, Tremp v. Patten, 132 Conn.
120, 42 A.2d 834, 837.
ABORDAGE. Fr. In French commercial law.
Collision of vessels.
ABORTIFACIENT. In medical jurisprudence. A
drug or medicine capable of, or used for, produc-
ing abortion.
ABORTION. The expulsion of the fcetus at a pe-
riod of utero-gestation so early that it has not
acquired the power of sustaining an independent
life. The unlawful destruction, or the bringing
forth prematurely, of the human foetus before the
natural time of birth; State of Magnell, 51 A.
606, 3 Pennewill (Del.) 307. The act of bringing
forth what is yet imperfect. Also the thing pre-
maturely brought forth, or product of an untimely
process. Sometimes loosely used for the offense
of procuring a premature delivery; but strictly,
the early delivering is the abortion; causing or
procuring abortion is the full name of the offense.
Wells v. New England Mut. L. Ins. Co., 191 Pa.
207, 43 A. 126, 53 L.R.A. 327.
Criminal miscarriage, Commonwealth v. Sierakowski,
154 Pa.Super. 321, 35 A.2d 790, 792; Mississippi State
Board of Health v. Johnson, 197 Miss. 417, 19 So.2d 445,
448. "Abortion" and a "miscarriage produced by unlawful
means" are synonymous, People v. Luckett, 23 Ca1.App.2d
539, 73 P.2d 658, 659.
ABORTIONIST. One who criminally produces
abortions, or one who follows business or prac-
tices of crime of producing abortions. State v.
Guaraneri, 59 R.I. 173, 194 A. 589, 592, 593.
ABORTIVE TRIAL. A term descriptive of the
result when a case has gone off, and no verdict
has been pronounced, without the fault, contri-
vance, or management of the parties. Jebb & B.
51.
ABORTUS. Lat. The fruit of an abortion; the
child born before its time, incapable of life.
ABOUT. Near in time, quantity, number, quality,
or degree. Substantially, approximately, almost,
or nearly. Odom v. Langston, 351 Mo. 609, 173
S.W.2d 826, 829. Testimony as to speed, Casto v.
Hansen, 123 Or. 20, 261 P. 428, 429. Near, period
of gestation of still born child, Life & Casualty
Ins. Co. v. Walters, 190 Miss. 761, 198 So. 746,
748; Todd v. City of New York, City Ct., N.Y. 23
N.Y.S.2d 884, 888. Carrying burglar's tools in
suitcase, Trousdale v. State, 168 Tenn. 210, 76 S.W.
2d 646, 647. Near the time. State ex rel. Nagle
v. Leader Co., 97 Mont. 586, 37 P.2d 561, 564.
When used with reference to time, the term is of flexible
significance, varying with the circumstances and the con-
nection in which it is employed. Burlington Grocery Co.
v. Heaphy's Estate, 98 Vt. 122, 126 A. 525, 528. But its
use does not necessarily render time immaterial, nor make
a contract one terminable at will. Costello v. Siems-Carey
Co., 140 Minn. 208, 167 N.W. 551, 552. In a charter party,
"about to sail" means just ready to sail. [1893] 2 Q.B.
274. And when it is said that one is "about" to board a
street car, it means "in the act of." Fox v. Denver City
Tramway Co., 57 Colo. 511, 143 P. 278, 280. With relation
to quantity, the term suggests only an estimate of probable
amount. Barkemeyer Grain & Seed Co. v. Hannant, 66
Mont. 120, 213 P. 208, 210. Its import is that the actual
quantity is a near approximation to that mentioned, and
it has the effect of providing against accidental varia-
tions. Norrington v. Wright, 6 S.Ct. 12, 115 U.S. 188, 29
L. Ed. 366. It may be given practically the same effect as
the phrase more or less. Pierce v. Miller, 107 Neb. 851,
187 N.W. 105, 107; Cargo under vessel charter, Steamship
Co. of 1912 v. C. H. Pearson & Son Hardwood Co., C.C.A.
N.Y., 30 F.2d 770, 773. Contract for sale of electric energy,
Merced Irr. Dist. v. San Joaquin Light & Power Corpora-
tion, 101 Cal.App. 153, 281 P. 415, 417. In a deed covers
some slight or unimportant inaccuracy. Parrow v. Proulx,
111 Vt. 274, 15 A.2d 835, 838. Synonymous with "on" or
"upon," as in offense of carrying concealed weapons.
State v. Brunson, 162 La. 902, 111 So. 321, 323; Carriage of
a pistol or revolver in a grip, satchel, or hand bag held in
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ABSCONDING
the hand or connected with the person, State v. Blazo-
vitch, 88 W.Va. 612, 107 S.E. 291, or on the running board
of an automobile, Armstrong v. State, 98 Tex.Cr.R. 335,
265 S.W. 701. Paulk v. State, 97 Tex.Cr.R. 415, 261 S. W.
779, 780. Near by, close at hand, convenient of access.
Welch v. State, 97 Tex.Cr.R. 617, 262 S.W. 485; Brown v.
U. S., 30 F.2d 474, 475, 58 App.D.C. 311. Weapon on shelf
immediately behind defendant, who was seated in coupe
type automobile. Hampton v. Commonwealth, 257 Ky. 626,
78 S.W.2d 748, 750. As to number, it merely implies an
estimate of a particular lot or class and not a warranty.
Holland v. Rock, 50 Nev. 340, 259 P. 415. In connection
with distance or locality, the term is of relative signifi-
cance, varying with the circumstances. Parker v. Town of
Pittsfield, 88 Vt. 155, 92 A. 24, 26. Employee on an ele-
vator is "about the premises". Lienau v. Northwestern
Telephone Exch. Co., 151 Minn. 258, 186 N.W. 945, 946.
Workman 200 feet from a factory was "about" the factory.
Wise v. Central Dairy Co., 121 Kan. 258, 246 P. 501, 503.
An automobile mechanic injured 17 1/2 blocks from the em-
ployers' shop while making a road test of an automobile
is not , injured on, in, or about the employers' place of
business. Iott v. Mosby, 126 Kan. 294, 268 P. 109. "About"
in lease meaning in other parts of building. William A.
Doe Co. v. City of Boston, 262 Mass. 458, 160 N.E. 262.
Estimate of distance, Picharella v. Ovens Transfer Co., 135
Pa.Super. 112, 5 A.2d 408, 409. Estimate as to time, char-
ter of vessel, Britain S. S. Co. v. Munson S. S. Line. D.C.
N.Y., 25 F.2d 868, 869. Instruction regarding specified
date, State v. Loahmann, Mo., 58 S.W.2d 309, 311. Courses
and distances, Humble Oil & Refining Co. v. Luther, Tex.
Civ.App., 40 S.W.2d 865, 867. Pistol under automobile seat.
Commonwealth v. Nunnelley, 56 S.W.2d 689, 247 Ky. 109,
88 A.L.R. 805.
ABOUTISSEMENT. Fr. An abuttal or abutment.
See Guyot, Repert. Univ. "Aboutissans."
ABOVE. Higher; superior. As, court above, plain-
tiff or defendant above. Above all incumbrances
means in excess thereof ; Williams v. McDonald,
42 N.J.Eq. 395, 7 A. 886. Principal; as distin-
guished from what is auxiliary or instrumental.
3 Bl.Comm. 291.
Bail to the action, or special bail, is otherwise termed
bail above. 3 Bl.Comm. 291. Jurisdiction "above" the ju-
risdiction of justices of the peace. Synonymous with
"without." Atlantic Coast Line R. Co. v. Nellwood Lum-
ber Co., 21 Ga.App. 209, 94 S.E. 86, 87. Above high water
means above a tide which might reasonably be expected to
recur with some degree of frequency. Banks v. Wilming-
ton Terminal Co., Del.Super., 24 A.2d 592, 598, 599, 601,
602, 2 Terry 489.
ABOVE CITED, or MENTIONED. Quoted be-
fore. A figurative expression taken from the
ancient manner of writing books on scrolls, where
whatever is mentioned or cited before in the same
roll must be above. Encyc. Lond.
ABPATRUUS. Lat. A great-great-uncle; or, a
great-great-grandfather's brother (a bavi frater).
Inst. 3, 6, 6; Dig. 38, 10, 3; Du Cange, Patruus.
Called by Bracton and Fleta, abpatruus magnus.
Bract. fol. 68b; Fleta, lib. 6, c. 2, § 17. It some-
times means uncle, and sometimes great-uncle.
ABRIDGE. To reduce or contract; usually spoken
of written language.
Copyright Law
To epitomize; to reduce; to contract. It im-
plies preserving the substance, the essence, of a
work, in language suited to such a purpose. In
making extracts there is no condensation of the
author's language, and hence no• abridgment. To
abridge requires the exercise of the mind; it is
not copying. Between a compilation and an
abridgment there is a clear distinction. A compila-
tion consists of selected extracts from different
authors; an abridgment is a condensation of the
views of one author. Story v. Holcombe, 4 Mc-
Lean, 306, 310, Fed.Cas.No.13,497.
Practice
To shorten a declaration or count by taking
away or severing some of the substance of it.
Brooke, Abr., Com., Dig. Abridgment; 1 Viner,
Abr. 109. See Abridgment.
ABRIDGMENT. Condensation; contraction. An
epitome or compendium of another and larger
work, wherein the principal ideas of the larger
work are summarily contained.
Abridgments of the law are brief digests of the law,
arranged alphabetically. (1 Steph.Comm. 51.) The term
"digest" has now supplanted that of "abridgment."
Sweet.
ABRIDGMENT OF DAMAGES. The right of the
court to reduce the damages in certain cases.
Vide Brooke, tit. "Abridgment."
ABROAD. In English chancery law, beyond the
seas.
ABROGATE. To annul, repeal, or destroy; to
annul or repeal an order or rule issued by a sub-
ordinate authority; to repeal a former law by
legislative act, or by usage.
ABROGATION. The destruction or annulling of
a former law, by an act of the legislative power,
by constitutional authority, or by usage.
It stands opposed to rogation; and is distinguished from
derogation, which implies the taking away only some part
of a law; from subrogation, which denotes the adding a
clause to it; from dispensation, which only sets it aside in
a particular instance; and from antiquation, which is the
refusing to pass a law. Encyc. Lond. Implied abrogation
takes place when the new law contains provisions which
are positively contrary to former laws, without expressly
abrogating such laws. Bernard v. Vignaud, 10 Mart.O.S.
La. 560; and also when the order of things for which
the law .has been made no longer exists. See Ex parte
Lum Poy, D.C., 23 F.2d 690.
For "Express Abrogation," see that title.
ABSCOND. To go in a clandestine manner out
of the jurisdiction of the courts, or to lie con-
cealed, in order to avoid their process. Malvin .v.
Christoph, 54 Iowa, 562, 7 N.W. 6. To hide, con-
ceal, or absent oneself clandestinely, with the in-
tent to avoid legal process. Smith v. Johnson, 43
Neb. 754, 62 N.W. 217. Postponing limitations.
Keck v. Pickens, 207 Ark. 757, 182 S.W.2d 873, 875.
Fleeing from arresting or prosecuting officers of
this state. Code Cr.Proc. art. 8. State v. Berry-
hill, 188 La. 549, 177 So. 663.
ABSCONDING DEBTOR. One who absconds
from his creditors.
An absconding debtor is one who lives without the state,
or who has intentionally concealed himself from his credi-
tors, or withdrawn himself from the reach of their suits,
with intent to frustrate their just demands. Thus, if a
person departs from his usual residence, or remains absent
therefrom, or conceals himself in his house, so that he can-
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ABSENCE
not be served with process, with intent unlawfully to de-
lay or defraud his creditors, he is an absconding debtor;
but if he departs from the state or from his usual abode,
with the intention of again returning, and without any
fraudulent design, he has not absconded, nor absented
himself, within the intendment of the law. Doughnut
Corporation of America v. Tsakirides, 121 N.J.L. 136, 1
A.2d 467, 469. A party may abscond, and subject himself
to the operation of the attachment law against absconding
debtors, without leaving the limits of the state. Field v.
Adreon, 7 Md. 209. A debtor who is shut up from his
creditors in his own house is an absconding debtor. Ives
v. Curtiss, 2 Root (Conn.) 133. Salzman v. Robinson, 10
N.J.Misc.R. 51, 157 A. 547, 548.
ABSENCE. The state of being absent, removed,
or away from one's domicile, or usual place of
residence. Maley v. Pennsylvania R. Co., 258 Pa.
73, 101 A. 911. Not present at particular time, op-
posite of appearance at a specified time. Hamil-
ton v. Bernstein, 133 Kan. 229, 299 P. 581.
Absence is of a fivefold kind: (1) A necessary absence,
as in banished or transported persons ; this is entirely nec-
essary. (2) Necessary and voluntary, as upon the account
of the commonwealth, or in the service of the church. (3)
A probable absence, according to the civilians, as that of
students on the score of study. (4) Entirely voluntary, on
account of trade, merchandise, and the like. (5) Absence
cum dolo et culpd, as not appearing to a writ, subpoena,
citation, etc., or to delay or defeat creditors, or avoiding
arrest, either on civil or criminal process. Ayliffe. Non-
appearance to action, not merely that the party was not
present in court vacating judgment. Strine v. Kaufman,
12 Neb. 423, 11 N.W. 867. In usual and natural signifi-
cation, means physical absence. Inhabitants of Lanes-
borough v. Inhabitants of Ludlow, 250 Mass. 99, 145 N.E.
57, 58. Nonpresence, of official for service. Kurre v.
American Indemnity Co. of Galveston, Tex., 223 Mo.App.
406, 17 S.W.2d 685, 688.
Presumption of Death Created
Intent to establish home at place last heard
from not required. American Nat. Ins. Co. v.
Garcia, Tex.Civ.App., 46 S.W.2d 1011, 1012. Away
from a place to which one is expected to return.
Woodmen of the World Life Ins. Soc. v. Cooper,
Tex.Civ.App., 164 S.W.2d 729, 731.
In Scotch Law, want or default of appearance. A•decree
is said to be in absence where the defender (defendant)
does not appear. Ersk. Inst. bk. 4, tit. 3, § 6.
ABSENT. Being away from; at a distance from;
not in company with.
Paine v. Drew, 44 N.H. 306, where it was held that the
word when used as an adjective referred only to the con-
dition or situation of the person or thing spoken of at
the time of speaking without reference to any prior con-
dition or situation of the same person or thing, but when
used as a verb implies prior presence. It has also been
held to mean "not being in a particular place at the time
referred to," and not to import prior presence. The term
absent defendants does not embrace non-resident defend-
ants but has reference to parties resident in the state, but
temporarily absent therefrom. Wheeler v. Wheeler, 35 Ill.
App. 123. See, however, Selmer v. James Dickinson Farm
Mortg. Co., D.C.I11., 299 F. 651, 658, holding that a foreign
corporation is "absent" from the state, and limitation does
not run in its favor. Commonwealth's attorney is "absent"
when disqualified or disabled from performing functions
of office.  Northcutt v. Howard, 279 Ky. 219, 130 S.W.2d
70, 71, 72. A judge, disqualified to act. Dark Tobacco
Growers' Co-op. Ass'n v. Wilson, 206 Ky. 550, 267 S.W.
1092, 1093. A deceased stockholder employee is not "ab-
sent" from duty, as respects sharing of profits, etc. Nich-
ols v. Olympia Veneer Co., 135 Wash. 8, 236 P. 794, 796.
Nonresident with office in state is not absent from state.
Corash v. Texas Co., 35 N.Y.S.2d 334, 340, 264 App.Div. 292.
As a verb, "absent" means to take or withdraw to such
a distance as to prevent intercourse; to depart from.
People v. Day, 321 Ill. 552, 152 N.E. 495, 497.
ABSENT-MINDEDNESS. A state of mind in
which the person affected fails to respond to the
ordinary demands on his attention. Webster. See
Racine Tire Co. v. Grady, 205 Ala. 423, 88 So. 337.
ABSENTE, Lat. Being absent; often used in the
old reports of one of the judges not present at the
hearing of a cause. 2 Mod. 14. Absente Reo,
The defendant being absent.
ABSENTEE. One who dwells abroad; a land-
lord who resides in a country other than that
from which he draws his rents. McCul. Pol.
Econ.; 33 Brit. Quar. Rev. 455. One who is ab-
sent from his usual place of residence or domicile.
Foreign corporations, not filing declarations of domicile
and names of agents. Palmer v. Avalon Oil Co., 10 La.
App. 512, 120 So. 781, 782. In Louisiana law, one who has
left his residence in a state leaving no one to represent
him. Bartlett v. Wheeler, 31 La.Ann. 540; or who resides
in another state but has property in Louisiana. Penn v.
Evans, 28 La.Ann. 576. It has been also defined as one
who has never been domiciled in the state and -who resides
abroad. Morris v. Bienvenu, 30 La.Ann. 878. One person
cannot be both,' at the same time, in the meaning of 1 he
law, a resident and an absentee. Spence v. Spence, 105
So. 23, 29, 158 La. 961.
ABSENTEES, or DES ABSENTEES. A parlia-
ment so called was held at Dublin, 10th May, 8
Hen. VIII. It is mentioned in letters patent 29
Hen. VIII.
ABSENTEM ACCIPERE DEBEMUS EUM QUI
NON EST EO LOCI IN QUO PETITUR. We
ought to consider him absent who is not in the
place where he is demanded (or sought). Dig.
50, 16, 199.
ABSENTIA EJUS QUI REIPUBLIC1E CAUSA
ABEST, NEQUE EI NEQUE ALII DAMNOSA
ESSE DEBET. The absence of him who is away
in behalf of the republic (on business of the state)
ought not to be prejudicial either to him or to an-
other. Dig. 50, 17, 140.
ABSOILE, ASSOIL, ASSOILE. To pardon; to
deliver from excommunication. Staunford, Pl.Cr.
72; Kelham; Cowell.
ABSOLUTA SENTENTIA EXPOSITORE NON
INDIGET. An absolute sentence or proposition
(one that is plain without any scruple, or absolute
without any saving) needs not an expositor. 2
Inst. 533.
ABSOLUTE. Complete; perfect; final; without
any condition or incumbrance; as an absolute
bond (simplex obligaiio) in distinction from a con-
ditional bond. Unconditional; complete and per-
fect in itself ; without relation to or dependence
on other things or persons. Instruction as to an
"absolute" gift, Ketch v. Smith, 131 Okl. 263, 268
P. 715, 717. Irrevocable, final. Gift inter vivos
by husband, President and Directors of Manhat-
tan Co. v. Janowitz, 14 N.Y.S.2d 375, 382, 172 Misc.
290. Within limitation or restriction, Comford v.
Cantrell, 177 Tenn. 553, 151 S.W.2d 1076, 1077.
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ABSQUE
An absolute estate is one that is free from all manner of
condition or incumbrance; an estate in fee simple. John-
son v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681; Fuller v. Miss-
roon, 35 S.C. 31.4, 14 S.E. 714; Bradford v. Martin, 199
Iowa 250, 201 N.W. 574, 576; Middleton v. Dudding, Mo.
Sup., 183 S.W. 443, 444.- A rule is said to be absolute when
on the hearing it is confirmed and made final. A convey-
ance is said to be absolute, as distinguished from a mort-
gage or other conditional conveyance. Gogarn v. Connors.
153 N.W. 1068, 188 Mich. 161. Absolute property is where
a man hath solely and exclusively the right and also the
occupation of movable chattels ; distinguished from a quali-
fied property, as that of a bailee. 2 Kent 347. An absolute
owner is one in whom elements of titles of possession,
right of possession, and right of property, are combined.
Harris v. Southeast Portland Lumber Co., 123 Or. 549, 262
P. 243, 244. Absolute ownership exists when interest is
so completely vested in insured that he cannot be deprived
of it without his own consent. Norwich Union Fire Ins.
Soc. v. Sawyer, 57 Ga.App. 739, 196 S.E. 223, 224. Absolute
rights are such as appertain and belong to particular per-
sons merely as individuals or single persons, as distin-
guished from relative rights, which are incident to them as
members of society; 1 Sharsw.Bla.Com. 123; 1 Chit.Pr.
32. An absolute duty is one that is free from every restric-
tion; unconditional; determined; not merely provisional;
irrevocable.  Broken telephone wires. Home Telephone
Co. v. Weir, 101 N.E.1020, 1021, 53 Ind. App. 466; Railroad
employee, Lehigh Valley R. Co. v. Beltz, C.C.A.N.Y., 10
F.2d 74, 77; Pedestrians, Scibilia v. City of Philadelphia,
279 Pa. 549, 124 A. 273, 275, 32 A.L.R. 981. An "absolute
power of disposition," in the absence of statute, would be
one by which the holder of the power might dispose of the
property as fully and in the same manner as he might dis-
pose of his individual estate acquired by his own efforts.
In re Briggs' Will, 167 N.Y.S. 632, 635, 101 Misc. 191. In the
law of insurance that is an absolute interest in property
which is so completely vested in the individual that there
could be no danger of his being deprived of it without his
own consent. Libby Lumber Co. v. Pacific States Fire Ins.
Co., 79 Mont. 166, 255 P. 340, 345, 60 A.L.R. 1. It may be
used in the sense of vested. Hough v. Ins. Co., 29 Conn.
20, 76 Am.Dec. 581. "Absolute control" in Motor Vehicle
Act does not require instant stoppage. Goff v. Clarksburg
Dairy Co., 86 W.Va. 237, 103 S.E. 58, 60. As to absolute
control of a mine, see People v. Boggess, 75 Cal.App. 499,
243 P. 478, 481; and of an estate, see Strickland v. Strick-
land, 271 Ill. 614, 111 N.E. 592, 594. Absolute veto is equiv-
alent to "pocket veto". Okanogan, Methow, San Poelis
(or San Poil), Nespelem, Colville, and Lake Indian Tribes
or Bands of State of Washington v. United States, 49 S.Ct.
463, 279 U.S. 655, 73 L.Ed. 894, 64 A.L.R. 1434.
As to absolute "Conveyance," "Covenant," "Delivery,"
"Divorce," "Estate," "Gift," "Guaranty," "Interest,"
"Legacy," "Nuisance," "Nullity," "Obligation," "Proper-
ty," "Rights," "Rule," "Sale," "Title," "Warrandice,"
see those titles.
ABSOLUTE LAW. The true and proper law of
nature, immutable in the abstract or in principle,
in theory, but not in application; for very often
the object, the reason, situation, and other cir-
cumstances, may vary its exercise and obligation.
1 Steph.Comm. 21 et seq.
ABSOLUTELY. Completely; wholly; without
qualification; without reference or relation to, or
dependence upon, any other person, thing, or
event. Thus, absolutely void means utterly void;
Pearsoll v. Chapin, 44 Pa. 9. Absolutely neces-
sary may be used to make the idea of necessity
more emphatic; State v. Tetrick, 34 W.Va. 137, 11
S.E. 1002. An "absolutely necessary repair," with-
in terms of Wisconsin St. 1925, § 85.02, prohibit-
ing parking of vehicles except for making abso-
lutely necessary repairs, includes repair of a
punctured tire. Long v. Steffen, 194 Wis. 179,
215 N.W. 892, 893, 61 A.L.R. 1155. Independently
or unconditionally, wholly or positively. Collins
v. Hartford Accident & Indemnity Co., 178 Va.
501, 17 S.E.2d 413, 418.
"Absolutely void" is that which the law or nature of
things forbids to be enforced at all, and that is "relatively
void" which the law condemns as a wrong to individuals
and refuses to enforce against them. Kyle v. Chaves, 42
N.Mex. 21, 74 P.2d 1030; Scudder v. Hart, 45 N.M. 76, 110
P.2d 536, 541.
A devise of property to have "absolutely" means without
condition, exception, restriction, qualification or limitation,
In re Darr's Estate, 206 N.W. 2, 3, 114 Neb. 116, and cre-
ates a fee-simple estate. In re Reynold's Estate, 94 Vt. 149,
109 A. 60, 63.
ABSOLUTION. In Canon Law, a juridical act
whereby the clergy declare that the sins of such
as are penitent are remitted. Among Protes-
tants it is chiefly used for a sentence by which a
person who stands excommunicated is released or
freed from that punishment. Encyc. Brit.
In the Civil Law a sentence whereby a party
accused is declared innocent of the crime laid to
his charge.
In French Law, the dismissal of an accusa-
tion.
The term acquitment is employed when the accused is
declared not guilty, and absolution when he is recognized
as guilty but the act is not punishable by law or he is
exonerated by some defect of intention or will. Merlin,
Report.
ABSOLUTISM. In politics. A system of gov-
ernment in which public power is vested in some
person or persons, unchecked and uncontrolled
by any law, institution, constitutional device, or
coordinate body.
ABSOLVE. To set free, or release, as from obli-
gation, debt, or responsibility. State ex rel. St.
Louis Car Co. v. Hughes, 348 Mo. 125, 152 S'.W.2d
193, 194.
ABSOLVITOR. In Scotch law. An acquittal; a
decree in favor of the defender in any action.
ABSQUE. Without. Occurs in phrases taken
from the Latin; such as those immediately fol-
lowing.
ABSQUE ALIQUO INDE REDENDO. Lat. With-
out reserving any rent therefrom; without ren-
dering anything therefrom. A term used of a
free grant by the crown. 2 Rolle, Abr. 502.
ABSQUE CONSIDERATIONE CURVE. In old
practice. Without the consideration of the court;
without judgment. Fleta, lib. 2, c. 47, § 13.
ABSQUE HOC. Without this. These are techni-
cal words of denial, used in pleading at common
law by way of special traverse, to introduce the
negative part of the plea, following the affirma-
tive part or inducement. Martin v. Hammon, 8
Pa. 270. See, also, Traverse.
ABSQUE I1%IPETITIONE VASTI. Without im-
peachment of waste; without accountability for
waste; without liability to suit for waste. A
clause anciently often inserted in leases (as the
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ABSQUE
equivalent English phrase sometimes is) signify-
ing that the tenant or lessee shall not be liable to
suit (impetitio) or challenged, or called to ac-
count, for committing waste. Co. Litt. 220a;
Litt. § 352. See Waste.
ABSQUE TALI CAUSA. Lat. Without such
cause. A form of replication, now obsolete, in
an action ex delicto which works a general de-
nial of the whole matter of the defendant's plea
of de injuria. Gould, Pl. c. 7, § 10; Steph. Pl. 191.
ABSTENTION. In French law. Keeping an
heir from possession; also tacit renunciation of
a succession by an heir. Merl. Repert.
ABSTRACT, n. A less quantity containing the
virtue and force of a greater quantity; an
abridgment. Miller v. Kansas City Light & Pow-
er Co., C.C.A.Mo., 13 F.2d 723. A transcript is
generally defined as a copy, and is more compre-
hensive than an abstract. Harrison- v. Mfg. Co.,
10 S.C. 278, 283. Summary or epitome, or that
which comprises or concentrates in itself the es-
sential qualities of a larger thing or of several
things. Robbins Inv. Co. v. Robbins, 49 Cal.App.
2d 446, 122 P.2d 91, 92.
ABSTRACT, v. To take or withdraw from; as,
tO abstract the funds of a bank. Sprague v.
State, 188 Wis. 432, 206 N.W. 69, 70.
ABSTRACT OF A FINE. In old conveyancing.
One of the parts of a fine, being an abstract of
the writ of covenant, and the concord, naming the
parties, the parcels of land, and the agreement.
2 Bl.Comm. 351. More commonly called the
"note" of the fine. See Fine; Concord.
ABSTRACT OF RECORD. A complete history in
short, abbreviated form of the case as found in
the record, complete enough to show that the
questions presented for review have been properly
reserved. State ex rel. Wallace State Bank v.
Trimble, 308 Mo. 278, 272 S.W. 72, 73. Synopsis
or summary of facts, rather than table of con-
tents of transcript. Wing v. Brasher, 59 Mont.
10, 194 P. 1106, 1108. Abbreviated accurate and
authentic history of proceedings. Brown v. Reich-
mann, 237 Mo.App. 136, 164 S.W.2d 201, 207.
ABSTRACT OF TITLE. A condensed history of
the title to land, consisting of a synopsis or sum-
mary of the material or operative portion of all
the conveyances, of whatever kind or nature,
which in any manner affect said land, or any
estate or interest therein, together with _a state-
ment of all liens, charges, or liabilities to which
the same may be subject, and of which it is in any
way material for purchasers to be apprised.
Wary . Abst. § 2. Stevenson v. Polk, 71 Iowa, 278,
32 N.W. 340.
Record title, not extrinsic evidence thereof. Upton v.
Smith, 166 N.W. 268, 183 Iowa 588. Showing a marketable
title. Morgan v. W. A. Howard Realty Co., 68 Colo. 414,
191 P. 114, 115. An epitome of the record evidence of title.
De Huy v. Osborne, 96 Fla. 435, 118 So. 161, 162. Including
maps, plats, and other aids. Commissioners' Court of
Madison County v. Wallace, 118 Tex. 279, 15 S.W.2d 535,
536. An epitome of the conveyances, transfers, and other
facts relied on as evidence of title, together with all such
facts appearing of record as may impair the title. State
ex rel. Freeman v. Abstracters Board of Examiners, 99
Mont. 564, 45 P.2d 668, 670. Vangsness v. Bovill, 58 S.D.
228, 235 N.W. 601, 604. Memorandum or concise statement
in orderly form of the substance of documents or facts
appearing on public records which affect title to real
property. State ex rel. Doria v. Ferguson, 145 Ohio St. 12,
60 N.E.2d 476, 478.
ABSTRACT QUESTION. One which does not
rest upon existing facts or rights. Morris Plan
Bank of Fort Worth v. Ogden, Tex.Civ.App., 144
S.W.2d 998, 1004.
ABSTRACTION. Taking from with intent to in-
jure or defraud, "wrongful abstraction" is "unau-
thorized and illegal taking or withdrawing of
funds, etc., and appropriation thereof to taker's
benefit." Pacific Coast Adjustment Bureau v.
Indemnity Ins. Co. of North America, 115 Cal.
App. 583, 2 P.2d 218, 219.
For benefit of taker or of another with his consent.
Austin v. Nieman, Tex.Civ.App., 3 S.W.2d 128, 129. Of-
fense for bank officer, popular sense of word. Common-
wealth v. Dauphinee, 121 Pa.Super. 565, 183 A. 807, 813.
Under the National Bank Act, not necessarily the same as
embezzlement, larceny, or misapplication of funds. Fer-
guson v. State, 80 Tex.Cr.R. 383, 189 S.W. 271, 273. State
v. Hudson, 93 W.Va. 435, 117 S.E. 122, 126.
ABSURDITY. That which is both physically and
morally impossible; and that is to be regarded as
morally impossible which is contrary to reason,
so that it could not be imputed to a man in his
right senses. State v. Hayes, 81 Mo. 574, 585.
Anything which is so irrational, unnatural, or in-
convenient that it cannot be supposed to have
been within the intention of men of ordinary in-
telligence and discretion. Black, Interp. Laws,
104; Graves v. Scales, 172 N.C. 915, 90 S.E. 439;
obviously and flatly opposed to the manifest
truth; inconsistent with the plain dictates of
common sense; logically contradictory; nonsen-
sical; ridiculous. Wade v. Empire Dist. Electric
Co., 98 Kan. 366, 158 P. 28, 30.
ABUNDANS CAUTELA NON NOCET. Abun-
dant or extreme caution does no harm. 11 Co. 6;
Fleta, lib. 1, c. 28, § 1; 6 Wheat. 108. This princi-
ple is generally applied to the construction of
instruments in which superfluous words have been
inserted more clearly to express the intention.
ABUS DE CONFIANCE. Fraudulently misusing
or spending to anybody's prejudice goods, cash,
bills, documents, or contracts handed over for a
special object. The Washington, D.C.N.Y., 19 F.
Supp. 719, 722.
ABUSE, n. Everything which is contrary to good
order established by usage. Merl. Repent. De-
parture from use; immoderate or improper use.
Action that would be necessary in ordinary affairs to,
make one guilty of an "abuse" connotes conduct of a dif-
ferent grade than what is meant when a court is said to
have "abused its discretion." Beck v. Wings Field, Inc.
C.C.A.Pa., 122 F.2d 114, 116.
Civil Law
The destruction of the substance of a thing in
using it. See Abuse, v.
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ABUT
Corporate Franchise or Entity
The abuse or misuse of its franchises by a cor-
poration signifies any positive act in violation of
the charter and in derogation of public right,
willfully done or caused to be done; the use of
rights or franchises as a pretext for wrongs and
injuries to the public. People v. Atlantic Ave. R.
Co., 125 N.Y. 513, 26 N.E. 622.
Discretion
"Abuse of discretion" is synonymous with a fail-
ure to exercise a sound, reasonable, and legal dis-
cretion. Disbarment, Adair v. Pennewill, 153 A.
859, 860, 4 W.W.Harr.(Del.) 390. It is a strict
legal term indicating that appellate court is
simply of opinion that there was commission of
an error of law in the circumstances. Refusing
motion to amend pleadings, Tunstall v. Lerner
Shops, 160 S.C. 557, 159 S.E. 386. Motions to con-
solidate actions, Bishop v. Bishop, 164 S.C. 493,
162 S.E. 756, 757. Vacating judgment, Detroit Fi-
delity & Surety Co. v. Foster, 171 S.C. 121, 169
S.E. 871, 881. And it does not imply intentional
wrong or bad faith, or misconduct, nor any reflec-
tion on the judge but means the clearly erroneous
conclusion and judgment—one is that clearly
against logic and effect of such facts as are pre-
sented in support of the application or against
the reasonable and probable deductions to be
drawn from the facts disclosed upon the hearing;
an improvident exercise of discretion; an error of
law. New trial, State v. Draper, 83 Utah, 115, 27
P.2d 39. Setting aside of decree pro confesso. Ex
parte Jones, 246 Ala. 433, 20 So.2d 859, 862.
A discretion exercised to an end or purpose not justified
by and clearly against reason and evidence. Trimmer v.
State, 142 Okl. 278, 286 P. 783, 786; Seaba v. State, 290 P.
1098, 1101, 144 Okl. 295. Unreasonable departure from
considered precedents and settled judicial custom, con-
stituting error of law. Beck v. Wings Field, Inc., C.C.A.
Pa., 122 F.2d 114, 116, 117. The term is commonly em-
ployed to justify an interference by a higher court with the
exercise of discretionary power by a lower court and is
said by some authorities to imply not merely error of
judgment, but perversity of will, passion, prejudice, par-
tiality, or moral delinquency. The exercise of an honest
judgment, however erroneous it may appear to be, is not
an abuse of discretion. Stroup v. Raymond, 183 Pa. 279, 38
A. 626. Where a court does not exercise a discretion in the
sense of being discreet, circumspect, prudent, and exercis-
ing cautious judgment, it is an abuse of discretion. State
Board of Medical Examiners v. Spears, 79 Colo. 588, 247 P.
563, 565. Difference in judicial opinion is not synonymous
with "abuse of judicial discretion" as respects setting aside
verdict as against evidence. Belock v. State Mut. Fire Ins.
Co., 106 Vt. 435, 175 A. .19, 22.
Distress
The using an animal or chattel distrained,
which makes the distrainer liable as for a con-
version.
Female Child
An injury to the genital organs in an attempt at
carnal knowledge, falling short of actual penetra-
tion. Lee v. State, 246 Ala. 69, 18 So.2d 706, 707.
But, according to other authorities, "abuse" is
here equivalent to ravishment or rape. Palin v.
State, 38 Neb. 862, 57 N.W. 743. Physical abuse.
Montgomery v. State, 28 Ala.App. 442, 186 So.
589, 592.
Process
There is said to be an abuse of process when
an adversary, through the malicious and unfound-
ed use of some regular legal proceeding, obtains
some advantage over his opponent. Wharton.
Employment of process for doing an act clearly
outside authority conveyed by express terms of
writ. Shane v. Gulf Refining Co., 114 Pa.Super.
87, 173 A. 738, 740.
The gist of an action for "abuse of process" is improper
use or perversion of process after it has been issued.
Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32
A.2d 413, 415. Holding of accused incommunicado before
complying with warrant requiring accused to be taken
before magistrate. People v. Crabb, 372 Ill. 347, 24 N.E.2d
46, 49. Warrant of arrest to coerce debtor. In re Wil-
liams, 233 Mo.App. 1174, 128 S.W.2d 1098, 1105. A mali-
cious abuse of legal process occurs where the party em-
ploys it for some unlawful object, not the purpose which
it is intended by the law to effect; in other words, a
perversion of it. Lauzon v. Charroux, 18 R.I. 467, 28 A.
975. Vybiral v. Schildhauer, 265 N.W. 241, 244, 130 Neb.
433; Silverman v. Ufa Eastern Division Distribution, 236
N.Y.S. 18, 20, 135 Misc. 814. Thus, where the purpose of
a prosecution for issuance of a check without funds was
to collect a debt, the prosecution constituted an abuse of
criminal process. Hotel Supply Co. v. Reid, 16 Ala.App.
563, 80 So. 137, 138. Regular and legitimate use of process,
although with a bad intention, is not a malicious "abuse
of process." Priest v. Union Agency, 174 Tenn. 304, 125 S.
W.2d 142, 143. Action for "abuse of process" is distin-
guished from action for "malicious prosecution," in that
action for abuse of process rests upon improper use of reg-
ularly issued process, while "malicious prosecution" has
reference to wrong in issuance of process. Clikos v. Long,
231 Ala. 424, 165 So. 394, 396; McInnis v. Atlantic Inv. Cor-
poration, 137 Or. 648, 4 P.2d 314, 315; Lobel v. Trade Bank
of New York, 229 N.Y.S. 778, 781, 132 Misc. 643.
ABUSE, v. To make excessive or improper use
of a thing, or to employ it in a manner contrary
to the natural or legal rules for its use; to make
an extravagant or excessive use, as to abuse one's
authority.
In the civil law, the borrower of a chattel which, in its
nature, cannot be used without consuming it. such as wine
or grain, is said to abuse the thing borrowed if he uses it.
It has been held to include misuse; Erie & North-East R.
Co. v. Casey, 26 Pa. 287; to signify to injure, diminish in
value, or wear away by improper use; id.; to be synon-
ymous with injure; Dawkins v. State, 58 Ala. 376, 29 Am.
Rep. 754.
ABUSIVE. Tending to deceive; practicing abuse;
prone to ill treat by coarse, insulting words. U.
S. v. Ault, D.C.Wash., 263 F. 800, 810. Using
ill treatment, injurious, improper, hurtful, offen-
sive, reproachful. People on Complaint of Wil-
son v. Sinclair, 149 N.Y.S. 54, 56, 86 Misc. 426.
ABUT. To reach, to touch. In old law, the ends
were said to abut, the sides to adjoin. Cro. Jac.
184. And see Lawrence v. Killam, 11 Kan. 499,
511; Springfield v. Green, 120 Ill. 269, 11 N.E.
261. To take a new direction; as where a bound-
ing line changes its course. Spelman, Gloss.
Abuttare. To touch at the end; be contiguous;
join at a border or boundary; terminate; to end
at; to border on; to reach or touch with an end.
Assessment of property, Hensler v. City of Ana-
cortes, 140 Wash. 184, 248 P. 406, 407. The term
"abutting" implies a closer proximity than the
term "adjacent." Reversion of vacated park land,
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ABUT
City of Hutchinson v. Danley, 88 Kan. 437, 129
P. 163, 164. "Contiguous" synonymous, both con-
veying idea that lot borders on improvement.
Reynard v. City of Caldwell, 55 Idaho 342, 42
P.2d 292, 296.
No intervening land. Johnson v. Town of Watertown,
131 Conn. 84, 38 A.2d 1, 4. Property at end of street sought
to be vacated. Messinger v. City of Cincinnati, 36 Ohio
App. 337, 173 N.E. 260, 262. Widen street, leaving ftee
access to paved street, property within assessment stat-
utes. Goodman v. City of Birmingham, 223 Ala. 199, 135
So. 336, 337. Though the usual meaning of the word is
that the things spoken of do actually adjoin, "bounding
and abutting" have nc, such inflexible meaning as to re-
quire lots assessed actually to touch the improvement;
Cohen v. Cleveland, 43 Ohio St. 190, 1 N.E. 589.
ABUTMENTS. The walls of a bridge adjoining
the land which support the end of the roadway
and sustain the arches. The ends of a bridge,
or those parts of it which touch the land. Board
of Chosen Freeholders of Sussex County v. Stra-
der, 18 N.J.Law, 108, 35 Am.Dec. 530. Support at
either extreme end. City of New York v. New
York Cent. R. Co., 48 N.Y.S.2d 189, 191, 183 Misc.
104.
ABUTTALS. Fr. The buttings or boundings of
lands, showing to what other lands, highways,
or places they belong or are abutting. Termes
de la Ley; Cowell; Toml. It has been used to
express the end boundary lines as distinguished
from those on the sides, as "buttais and sidings";
Cro.Jac. 183.
ABUTTER. One whose property abuts, is contigu-
ous, or joins at a border or boundary, as where
no other land, road, or street intervenes.
ABUTTING OWNER. An owner of land which
abuts or adjoins. The term usually implies that
the relative parts actually adjoin, but is some-
times loosely used without implying more than
close proximity. See Abut.
Where five-foot strip between property assessed for pav-
ing and street was conveyed to city but not used for street
purposes, property assessed held not "abutting property,"
Davidson v. Salt Lake City, 81 Utah 203, 17 P.2d 234, 237.
Property owners held "abutting property owners," sub-
ject to sewer assessment, notwithstanding street was wid-
ened from 40 to 50 feet when incorporated in state high-
way, and city bought the extra 5 feet on either side. Ca-
rey-Reed Co. v. Sisco, 251 Ky. 22, 64 S.W.2d 430, 433. Rail-
road in street was not "abutting owner". Town of
Lenoir v. Carolina & N. W. Ry. Co., 194 N.C. 710, 140 S.E.
618, 619.
AC ETIAM. (Lat. And also.) The introduction
of the statement of the real cause of action, used
in those cases where it was necessary to allege a
fictitious cause of action to give the court juris-
diction, and also the real cause in compliance with
the statutes. It is sometimes written acetiam. 2
Stra. 922. See Bill of Middlesex under Bill, defi-
nition 2.
AC ETIAM BILLIE. And also to a bill. See Ac
Etiam.
AC SI. (Lat. As if.) Townsh. P1. 23, 27. These
words frequently occur in old English statutes.
Lord Bacon expounds their meaning in the statute
of uses: "The statute gives entry, not simpliciter,
but with an ac si." Bac. Read. Uses, Works, iv.
195.
ACADEME. Place of academic study. Sisters of
Mercy v. Town of Hooksett, 93 N.H. 301, 42 A.2d
222, 225.
ACADEMY. An institution of learning. An as-
sociation of experts in some particular branch of
art, literature, or science.
In its original meaning, an association formed for mutual
improvement, or for the advancement of science or art; in
later use, a species of educational institution, of a grade
between the common school and the colle g e. Academy of
Fine Arts v. Philadelphia County, 22 Pa. 496; School hold-
ing rank between college and common school, U. S. ex rel.
Jacovides v. Day, C.C.A.N.Y., 32 F.2d 542, 544; Sisters of
Mercy v. Town of Hooksett, 93 N.H. 301, 42 A.2d 222, 225.
See School.
ACAPTE, In French feudal law. A species of
relief; a seignorial right due on every change of
a tenant. A feudal right which formerly pre-
vailed in Languedoc and Guyenne, being attached
to that species of heritable estates which were
granted on the contract of emphyteusis. Guyot,
Inst. Feod. c. 5, § 12.
ACCEDAS AD CURIAM. (Lat. That you go to
court.) An original writ out of chancery directed
to the sheriff, for the purpose of removing a re-
plevin suit from a Court Baron or a hundred court
to one of the superior courts of law. It directs
the sheriff to go to the lower court, and enroll
the proceedings and send up the record. See
Fitzh. Nat. Brev. 18; Dy. 169; 3 Bl. Comm. 34.
ACCEDAS AD VICE COMITEM. L. Lat. (You
go to the sheriff.) A writ formerly directed to
the coroners of a county in England, commanding
them to go to the sheriff, where the latter had
suppressed and neglected to return a writ of
pone, and to deliver a writ to him requiring him
to return it. Reg. Orig. 83. See Pone.
ACCELERATION. The shortening of the time
for the vesting in possession of an expectant in-
terest. Wharton. Hastening of the enjoyment of
an estate which was otherwise postponed to a
later period. Blackwell v. Virginia Trust Co., 177
Va. 299, 14 S.E.2d 301, 304.
If the life estate fails for any reason, the remainder is
"accelerated". Elliott v. Brintlinger, 376 III. 147, 33 N.E.
2d 199, 201, 133 A.L.R. 1364. The word is also used in ref-
erence to contracts for payment of money in what is usual-
ly called an "acceleration clause" by which the time for
payment of the debt is hastened or advanced because of
breach of some condition such as failure to pay interest
when due, McCormick v. Daggett, 162 Ark. 16, 257 S.W.
358; insolvency of the maker, Wright v. Seaboard Steel &
Manganese Corporation, C.C.A.N.Y., 272 F. 807; or failure
to keep mortgaged premises insured, Porter v. Schroll, 93
Kan. 297, 144 P. 216.
ACCEPT. To receive with approval or satisfac-
tion; to receive with intent to retain. See Morris
v. State, 102 Ark. 513, 145 S.W. 213, 214. Also, in
the capacity of drawee of a bill, to recognize the
draft, and engage to pay it when due. It is not
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equivalent to "acquiesce." Applett v. Empire Inv.
Co., 99 Or. 533, 194 P. 461, 462. Admit and agree
to; accede to or consent to; receive with approval;
adopt; agree to. Rocha v. Hulen, 6 Cal.App.2d
245, 44 P.2d 478, 482, 483. Street committee's and
city engineer's reports. City of Morehead v.
Blair, 243 Ky. 84, 47 S.W.2d 741, 742. Means
something more than to receive, meaning to
adopt, to agree to carry out provisions. Assignee
of lease, Pickier v. Mershon, 212 Iowa, 447, 236
N.W. 382, 385; Central State Bank v. Herrick,
214 Iowa 379, 240 N.W. 242, 246. Renewal health
and accident policy premiums, Prescott v. Mutual
Ben. Health and Accident Ass'n, Fla., 183 So. 311,
314, 119 A.L.R. 525.
ACCEPTANCE. The taking and receiving of
anything in good part, and as it were a tacit
agreement to a preceding act, which might have
been defeated or avoided if such acceptance had
not been made. Brooke, Abr. The act of a per-
son to whom a thing is offered or tendered by an-
other, whereby he receives the thing with the in-
tention of retaining it, such intention being evi-
denced by a sufficient act. JEtna Inv. Corporation
v. Chandler Landscape & Floral Co., 227 Mo.App.
17, 50 S.W.2d 195, 197.
The exercise of power conferred by an offer by
performance of some act. In re Larney's Estate,
266 N.Y.S. 564, 148 Misc. 871.
Bills of Exchange
An engagement to pay the bill in money when
due. 4 East 72; Hunt v. Security State Bank, 91
Or. 362, 179 P. 248, 251.
The act by which the person on whom a bill of exchange
is drawn (called the "drawee") assents to the request of
the drawer to pay it, or, in other words, engages, or makes
himself liable, to pay it when due. Bell-Wayland Co. v.
Bank of Sugden, 95 Okl. 67, 218 P. 705. It may be by parol
or in writing, and either general or special, absolute or
conditional; and it may be impliedly, as well as expressly,
given. 3 Kent, Comm. 83, 85; Story, Bills, §§ 238, 251.
Telegram directing drawer to draw draft. Hoffer v. East-
land Nat. Bank, Tex.Civ.App., 169 S.W.2d 275, 278. Cer-
tification at request of the payee or holder. Welch v. Bank
of Manhattan Co., 35 N.Y.S.2d 894, 895, 264 App.Div. 906.
But the usual and regular mode of acceptance is by the
drawee's writing across the face of the bill the word "ac-
cepted," and subscribing his name; after which he is
termed the acceptor. Story, Bills, § 243.
Contracts
Compliance by offeree with terms and condi-
tions of offer would constitute an "acceptance".
Davis & Clanton v. C. I. T. Corporation, 190 S.C.
151, 2 S.E.2d 382, 383.
Qualifications or conditions make a "counteroffer," not
an "acceptance." Cohn v. Penn Beverage Co., 313 Pa.
349, 169 A. 768, 769. Bullock v. McKeon, 104 Cal.App. 72,
285 P. 392, 395.
Deed
Act by which vendee vests himself with title to
the property. Hardin v. Kazee, 238 Ky. 526, 38
S.W.2d 438.
Insurance
In a contract of insurance, the "acceptance" oc-
curs when insurer agrees to accept application
and to issue policy. Acacia Mut. Life Ass'n v.
Berry, 54 Ariz. 208, 94 P.2d 770, 772. Delay or in-
action on the part of an insurer cannot constitute
an "acceptance". French American Banking Cor-
poration v. Fireman's Fund Ins. Co., D.C.N.Y., 43
F.Supp. 494, 498. More than mere mental resolu-
tion or determination on part of insurer to accept
application. Must be communicated to applicant.
Limbaugh v. Monarch Life Ins. Co., Springfield,
Mass., Mo.App., 84 S.W.2d 208, 212.
Marine Insurance
The acceptance of an abandonment by the un-
derwriter is his assent, either express or to be
implied from the surrounding circumstances, to
the sufficiency and regularity of the abandonment.
Rap. & Law.
Sales
An acceptance implies, not only tha physical
fact of receiving the goods, but also the intention
of retaining them. Illinois Fuel Co. v. Mobile
& 0. R. Co., 319 Mo. 899, 8 S.W.2d 834, 841.
Retaining and using goods. Ohio Electric Co. v. Wis-
consin-Minnesota Light & Power Co., 161 Wis. 632, 155 N.
W. 112, 113. Pressure tanks, Dunck Tank Works v. Suther-
land, 236 Wis. 83, 294 N.W. 510, 513. Coal stokers used
for 15 months before request for removal, United States
v. Lux Laundry Co., C.C.A.Ind., 118 F.2d 848, 849. Where
goods are expressly rejected, receipt does not mean accept-
ance. State Board of Administration v. Roquemore, 218
Ala. 120, 117 So. 757, 760. The acceptance of goods sold
under a contract which would be void by the statute of
frauds without delivery and acceptance involves something
more than the act of the vendor in the delivery. It re-
quires that the vendee should also act, and that his act
should be of such a nature as to indicate that he receives
and accepts the goods delivered as his property. He must
receive and retain the articles delivered, intending there-
by to assume the title to them, to constitute the acceptance
mentioned in the statute. Rodgers v. Phillips, 40 N.Y.
524. See, also, Snow v. Warner, 10 Mete. (Mass.) 132, 43
Am. Dec. 417. There must be some unequivocal act, with
intent to take possession as owner. Vacuum Ash & Soot
Conveyor Co. v. Huyler's, 101 N.J.Law, 147, 127 A. 203, 204.
Title and possession must be in unrestricted control of buy-
er so as not to permit of recall or rescission. Mellen Pro-
duce Co. v. Fink, 225 Wis. 90, 273 N.W. 538. Mere words
are insvfficient to establish "delivery and receipt." Mellen
Produce Co. v. Fink, 225 Wis. 90, 273 N.W. 538, 542.
The following are the principal varieties of acceptances :
Absolute. An express and positive agreement to pay the
bill according to its tenor.
Conditional. An engagement to pay the bill on the hap-
pening of a condition. Todd v. Bank of Kentucky, 3 Bush,
(Ky.) 628. A "conditional acceptance" is in effect a state-
ment that the offeree is willing to enter into a bargain
differing in some respects from that proposed in the origi-
nal offer. The conditional acceptance is, therefore, itself a
counter offer. Hoskins v. Michener, 33 Idaho, 681, 197 P.
724. Morris F. Fox & Co. v. Lisman, 208 Wis. 1, 237 N.W.
267, 271. Worley v. Holding Corporation, 348 Ill. 420, 181
N.E. 307, 309.
Express. An undertaking in direct and express terms to
pay the bill; an absolute acceptance.
Implied. An undertaking to pay the bill inferred from
acts of the drawee of a character which fairly warrant such
an inference. In case of a bilateral contract, "acceptance"
of an offer need not be expressed, but may be shown by
any words or acts indicating the offeree's assent to the
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ACCEPTANCE
proposed bargain. Prescott v. Mutual Ben. Health and Ac-
cident Ass' n, 133 Fla. 510, 183 So. 311, 315, 119 A.L.R. 525.
Frederick Raff Co. v. Murphy, 110 Conn. 234, 147 A. 709,
711. Tenant for several months continued to occupy store-
room and paid rentals, C. R. Anthony Co. v. Stroud, 189
Oki. 104, 114 P.2d 177, 178. Landlord's reletting leased
premises after default in rent, In re Lear Shoe Co., Sup.,
22 N.Y.S.2d 778, 782. Taking possession, exercise of owner-
ship and dominion and failure to complain to seller, Bell
v. Main, D.C.Pa., 49 F.Supp. 689, 692.
Partial. An acceptance varying from the tenor of the
bill. An acceptance to pay part of the amount for which
the bill is drawn, 1 Strange 214, or to pay at a different
time, 14 Jur. 806; Hatcher v. Stolworth, 25 Miss. 376;
or at a different place, 4 M. & S. 462, would be partial.
For some examples of what do and what do not constitute
conditional acceptances, see Heaverin v. Donnell, 7 Smedes
& M. (Miss.) 245, 45 Am.Dec. 302; Campbell v. Pettengill, 7
Greenl. (Me.) 126, 20 Am.Dec. 349; Ensign v. Clark Bros.
Cutlery Co., 195 Mo.App. 584, 193 S. W. 961, 962. Provi-
sions respecting cutting of timber etc. on optioned land, did
not destroy the "acceptance". Bastian v. United States, C.
C.A.Ohio, 118 F.2d 777, 779. Would be in named place for
purpose of entering into option, Ackerman v. Carpenter,
113 Vt. 77, 29 A.2d 922, 925. Counter proposition to option.
Tholl Oil Co. v. Miller, 197 La. 976, 3 So.2d 97, 98. Con-
ditional, qualified acceptance, Moore Bros. v. Kirkpatrick,
Tex.Civ.App., 172 S.W.2d 135, 137.
Qualified. One either conditional or partial, and which
introduces a variation in the sum, time, mode, or place of
payment.
Supra protest. An acceptance by a third person, after
protest of the bill for non-acceptance by the drawee, to
save the honor of the drawer or some particular indorser.
A. general acceptance is an absolute acceptance precisely
in conformity with the tenor of the bill itself, and not
qualified by any statement, condition, or change. Todd v.
Bank of Kentucky, 3 Bush (Ky.) 628. A special acceptance
is the qualified acceptance of a bill of exchange, as where
it is accepted as payable at a particular place "and not
elsewhere." Rowe v. Young, 2 Brod. & B. 180. See Trade
Acceptance.
ACCEPTANCE AU BESOIN. Fr, In French
law. Acceptance in case of need; an acceptance
by one on whom a bill is drawn au besoin, that is,
in case of refusal or failure of the drawee to ac-
cept. Story, Bills, §§ 65, 254, 255.
ACCEPTARE,
Civil Law
Lat. To accept; to assent; to assent to a prom-
ise made by another. Gro. de J. B. lib. 2, c. 11,
§ 14.
Pleading
To accept. Acceptavit, he accepted. 2 Strange,
817. Non acceptavit, he did not accept. 4 Man. &
G. 7.
ACCEPTEUR PAR INTERVENTION. In French
law. Acceptor of a bill for honor.
ACCEPTILATION. In the civil and Scotch law.
A release made by a creditor to his debtor of his
debt, without receiving any consideration. Ayl.
Pand. tit. 26, p. 570. It is a species of donation,
but not subject to the forms of the latter, and is
valid unless in fraud of creditors. Merl. Repert.
The verbal extinction of a verbal contract, with
a declaration that the debt has been paid when it
has not; or the acceptance of something merely
imaginary in satisfaction of a verbal contract.
Sanders' Just. Inst. (5th Ed.) 386.
ACCEPTOR. The person who accepts a bill of
exchange, (generally the drawee,) or who engages
to be primarily responsible for its payment. Nis-
senbaum v. State, 38 Ga.App. 253, 143 S.E. 776, 777.
ACCEPTOR SUPRA PROTEST. One who ac-
cepts a bill which has been protested, for the hon-
or of the drawer or any one of the indorsers.
ACCESS. Approach; or the means, power, or
opportunity of approaching. Sometimes import-
ing the occurrence of sexual intercourse, Jackson
v. Jackson, 182 Okl. 74, 76 P.2d 1062, 1066; other-
wise as importing opportunity of communication
for that purpose as between husband and wife.
In real property law, the term "access" denotes the
right vested in the owner of land which adjoins a road or
other highway to go and return from his own land to the
highway without obstruction. Cobb v. Commissioners of
Lincoln Park, 202 Ill. 427, 67 N.E. 5, G, 8. "Access" to
property does not necessarily carry with it possession.
People v. Brenneauer, 166 N.Y.S. 801, 806, 101 Misc. 156.
A deed, however, which conveys land and "also the right
of access to the adjoining park and use of spring on same,"
may be deemed to convey not merely the right to pass
through the park in order to reach the spring, but to con-
vey a right of entry into the pail( as a park and by im-
plication, the right to the use and enjoyment of the park.
Goetz v. Knoxville Power & Light Co., 154 Tenn. 545, 290
S. W. 409, 414.
The right of "access" as applied to a private wharf on
public lands merely means that there may not be built an
obstruction separating the lands from the navigable high-
way. City of Oakland v. Hogan, 41 Cal.App.2d 333, 106 P.
2d 987, 995.
The right of "access to public records" includes not
only a legal right of access but a reasonable opportunity to
avail oneself of the same. American Surety Co. of New
York v. Sandberg, D.C.Wash., 225 F. 150, 155.
Canon Law
The right to some benefice at some future time.
ACCESS (EASEMENT OF). An "easement of ac-
cess" is the right which an abutting owner has of
ingress to and egress from his premises, in addi-
tion to the public easement in the street. State
Highway Board v. Baxter, 167 Ga. 124, 144 S.E.
796, 800; Lang v. Smith, 113 Pa.Super. 559, 173
A. 682, 683. "Access to an underground sewer"
means more than a right to open the surface to
make repairs, and implies the right of connection
by branches. Heyman v. Biggs, 150 N.Y.S. 246,
247, 164 App.Div. 430.
ACCESSARY. See Accessory.
ACCESSIO. In Roman law. An increase or ad-
dition; that which lies next to a thing, and is
supplementary and necessary to the principal
thing; that which arises or is produced from the
principal thing; an "accessory obligation" (q. v.).
Calvinus, Lex. Jurid.
One of the modes of acquiring property, being
the extension of ownership over that which grows
from, or is united to, an article which one already
possesses. Mather v. Chapman, 40 Conn. 382,
397, 16 Am.Rep. 46.
Accessio includes both accession and accretion
as used in the common law. See Adjunctio.
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ACCESSION. Coming into possession of a right
or office; increase; augmentation; addition.
The right to all which one's own property produces,
whether that property be movable or immovable; and the
right to that which is united to it by accession, either na-
turally or artificially. 2 Kent, 360; 2 Bl.Comm. 404;
Franklin Service Stations v. Sterling Motor Truck Co. of
N. E., 50 R. I. 336, 147 A. 754, 755.
Riparian owners' right to abandoned river beds and
rights of alluvion by accretion and reliction, Manry v.
Robison, 122 Tex. 213, 56 S.W.2d 438, 443, 444.
A principle derived from the civil law, by which the
owner of property becomes entitled to all which it pro-
duces, and to all that is added or united to it, either natu-
rally or artificially, (that is, by the labor or skill of anoth-
er.) even where such addition extends to a change of form
or materials; and by which, on the other hand, the pos-
sessor of property becomes entitled to it, as against the
original owner, where the addition made to it by his skill
and labor is of greater value than the property itself, or
where the change effected in its form is so great as to
render it impossible to restore it to its original shape.
Twin City Motor Co. v. Rouzer Motor Co., 197 N.C. 371, 148
S.E. 461, 463. In Blackwood Tire & Vulcanizing Co. v.
Auto Storage Co., 133 Tenn. 515, 182 S. W. 576, L.R.A.1916E,
254, Ann.Cas.1917C, 1168, this principle was applied in favor
of the conditional seller who, on nonpayment, retook the
automobile sold, together with tire casings which the buy-
er had fitted thereto. Valley Chevrolet Co. v. 0. S. Stapley
Co., 50 Ariz. 417, 72 P.2d 945.
International Law
The absolute or conditional acceptance by one
or several states of a treaty already concluded be-
tween other sovereignties. Merl. Rêpert. It may
be of two kinds: First, the formal entrance of a
third state into a treaty so that such state be-
comes a party to it; and this can only be with
the consent of the original parties. Second, a
state may accede to a treaty between other states
solely for the purpose of guarantee, in which case,
though a party, it is affected by the treaty only as
a guarantor. 1 Oppenheim, Int.L. sec. 532. See
Adhesion.
Also, the commencement or inauguration of a
sovereign's reign.
ACCESSION, DEED OF. In Scotch law. A deed
executed by the creditors of a bankrupt or insol-
vent debtor, by which they approve of a trust giv-
en by their debtor for the general behoof, and
bind themselves to concur in the plans proposed
for extricating his affairs. Bell, Diet.
ACCESSORIUM NON DUCIT, SED SEQUITUR
SUUM PRINCIPALE, Co. Litt. 152a, 389a. That
which is the accessory or incident does not lead,
but follows, its principal.
ACCESSORIUS SEQUITUR NATURAM SUI
PRINCIPALIS. An accessary follows the nature
of his principal. 3 Inst. 139. One who is acces-
sary to a crime cannot be guilty of a higher de-
gree of crime than his principal.
ACCESSORY. Anything which is joined to anoth-
er thing as an ornament, or to render it more
perfect, or which accompanies it, or is connected
with it, as an incident, or as subordinate to it, or
which belongs to or with it; for example, the
halter of a horse, the frame of a picture, the
keys of a house.
Adjunct or accompaniment. Louis Werner Saw
Mill Co. v. White, 205 La. 242, 17 So.2d 264, 270.
A sale of land carried with it the standing timber as an
"accessory." Woollums v. Hewitt, 142 La. 597, 77 So. 295,
296.
Automobile Accessories
Articles primarily adapted for use in motor ve-
hicles, under revenue acts. Universal Battery Co.
v. U. S., Ct.C1., 50 S.Ct. 422, 423, 281 U.S. 580, 74
L.Ed. 1051.
Criminal Law
Contributing to or aiding in the commission of
a crime. One who, without being present at the
commission of a felonious offense, becomes guilty
of such offense, not as a chief actor, but as a par-
ticipator, as by command, advice, instigation, or
concealment; either before or after the fact or
commission; a particeps criminis. 4 Bl.Comm.
35; Cowell.
One who is not the chief actor in the offense, nor pres-
ent at its perfornlance. but in some way concerned therein,
either before or after the act committed. State v. Thomas,
136 A. 475, 477, 105 Conn. 757. One who aids and abets
another. People v. Smith, 260 N.W. 911, 271 Mich. 553.
Commands or counsels another. United States v. Peoni,
C.C.A.N.Y., 100 F.2d 401, 402.
An "accessory" to a crime is always an "accomplice."
People v. Ah Gee, 37 Cal.App. 1, 174 P. 371, 373. In certain
crimes, there can be no accessories; all who are concerned
are principals. These are (according to many authorities)
treason, and all offenses below the degree of felony: 4
Bla.Comm. 35; Com. v. McAtee, 8 Dana (Ky.) 28; Wil-
liams v. State, 12 Smedes & M. (Miss.) 58.
Accessory Before the Fact
One who, being absent at the time a crime is
committed, yet assists, procures, counsels, incites,
induces, encourages, engages, or commands anoth-
er to commit it. 4 Steph, Comm. 90, note n.
People v. Owen, 241 Mich. 111, 216 N.W. 434.
United States v. Pritchard, D.C.S.C., 55 F.Supp.
201, .203; rape, Clayton v. State, 244 Ala. 10, 13
So.2d 420, 422.
Murder, Wells v. State, 94 Ga. 70, 20 S.E.2d 580,
582. Distilling, State v. Lackmann, Mo., 12 S.W.
2d 424, 425.
Accessory During the Fact
One who stands by without interfering or giv-
ing such help as may be in his power to prevent
the commission of a criminal offense. Farrell v.
People, 8 Colo.App. 524, 46 P. 841.
Accessory After the Fact
One who, having full knowledge that a crime
has been committed, conceals it from the magis-
trate, and harbors, assists, or protects the person
charged with, or convicted of, the crime. Ver-
non's Ann.C.C.P. art. 53.
All persons who, after the commission of any
felony, conceal or aid the offender, with knowl-
edge that he has committed a felony, and with in-
tent that he may avoid or escape from arrest,
trial, conviction, or punishment, are accessories.
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Comp.Laws N.D.1913, § 9219; Rev.Code S.D.1919,
§ 3595.
An accessory after the fact is a person who, knowing a
felony to have been committed by another, receives, re-
lieves, comforts or assists the felon, in order to enable him
to escape from punishment, or the like. Buck v. Common-
wealth, 116 Va. 1031, 83 S.E. 390, 393. Knowledge, or de-
nial of knowledge, of perpetration of crime, or silence
does not make one an "accessory after the fact." Com-
monwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71, 75. Cantu
v. State, 135 S.W.2d 705, 710, 141 Tex.Cr.R. 99. But af-
firmative action by false testimony or otherwise usable by
accused to escape punishment constitutes one "accessory"
as to his testimony. Fisher v. State, 34 S.W.2d 293, 294,
117 Tex.Cr.R. 552; false statements to sheriff relative to
defendant's connection with homicide in order to evade
arrest, Littles v. State, 111 Tex.Cr.R. 500, 14 S.W.2d 853,
854.
Aiders and Abettors Distinguished
The concept of an "accessory before the fact"
presupposes a prearrangement to do the criminal
act, and to constitute one an "alder and abettor"
he must be on the ground and by his presence
aid, encourage or incite the principal. Morel v.
United States, C.C.A.Ohio, 127 F.2d 827, 830, 831.
Principal Distinguished
"Principal in the second degree," as distin-
guished from "accessory before the fact," is one
who aids in commission of felony by being either
actually or constructively present, aiding, and
abetting commission of felony, when perpetrated.
Neumann v. State, 116 Fla. 98, 156 So. 237, 239.
ACCESSORY ACTION. In Scotch practice. An
action which is subservient or auxiliary to anoth-
er. Of this kind are actions of "proving the ten-
or," by which lost deeds are restored; and actions
of "transumpts," by which copies of principal
deeds are certified. Bell, Dict.
ACCESSORY CONTRACT. In the civil law. A
contract which is incident or auxiliary to another
or principal contract; such as the engagement of
a surety. Poth. Obl. pt. 1, c. 1, § 1, art. 2.
A principal contract is one entered into by both parties,on their own accounts, or in the several qualities they as-
sume. An accessory contract is made for assuring the per-
formance of a prior contract, either by the same parties or
by others; such as suretyship, mortgage, and pledge.
Blaisdell v. Coe, 83 N.H. 167, 139 A. 758, 65 A.L.R. 626.
ACCESSORY OBLIGATION.
Civil Law
An obligation which is incident to another or
principal obligation; the obligation of a surety.
Poth. Obl. pt. 2, c. 1, § 6.
Scotch Law
Obligations to antecedent or primary obliga-
tions, such as obligations to pay interest, etc.
Ersk. Inst. lib. 3, tit. 3, § 60.
See, further, Obligation.
ACCESSORY TO ADULTERY. Implies more
than connivance, which is merely knowledge with
consent. A conniver abstains from interference;
an accessory directly commands, advises, or pro-
cures the adultery. 20 & 21 Vict. c. 85, §§ 29, 31.
ACCIDENT. The word "accident" is derived
from the Latin verb "accidere" signifying "fall
upon, befall, happen, chance." In an etymological
sense anything that happens may be said to be
an accident and in this sense, the word has been
defined as befalling; a change; a happening; an
incident; an occurrence or event. In its most
commonly accepted meaning, or in its ordinary or
popular sense, the word may be defined as mean-
ing a fortuitous circumstance, event, or happen-
ing, an event happening without any human
agency, or if happening wholly or partly through
human agency, an event which under the circum-
stances is unusual and unexpected by the person
to whom it happens; an unusual, fortuitous, un-
expected, unforeseen or unlooked for event, hap-
pening or occurrence; an unusual or unexpected
result attending the operation or performance of
a usual or necessary act or event; chance or
contingency; fortune; mishap; some sudden and
unexpected event taking place without expectation,
upon the instant, rather than something which
continues, progresses or develops; something
happening by chance; something unforeseen, un-
expected, unusual, extraordinary or phenominal,
taking place not according to the usual course of
things or events, out of the range of ordinary
calculations; that which exists or occurs abnor-
mally, or an uncommon occurrence; the word
may be employed as denoting a calamity, casual-
ty, catastrophe, disaster, an undesirable or unfor-
tunate happening; any unexpected personal in-
jury resulting from any unlooked for mishap or
occurrence; any unpleasant or unfortunate oc-
currence, that causes injury, loss, suffering or
death; some untoward occurrence aside from the
usual course of events. Adams v. Metropolitan
Life Ins. Co., 136 Pa.Super. 454, 7 A.2d 544, 547;
without known or assignable cause, Ramsay v.
Sullivan Mining Co., 51 Idaho 366, 6 P.2d 856,
858.
In its proper use the term excludes negligence; Dallas
Ry. & Terminal Co. v. Allen, Tex.Civ.App., 43 S.W.2d 165,
170; that is, an accident is an event which occurs without
the fault, carelessness, or want of proper circumspection
of the person affected, or which could not have been avoid-
ed by the use of that kind and degree of care necessary to
the exigency and in the circumstances in which he was
placed. Brown v. Kendall, 6 Cush. (Mass.) 292; essential
requirement being that happening be one to which human
fault does not contribute, Hogan v. Kansas City Public
Service Co., 322 Mo. 1103, 19 S.W.2d 707, 713, 65 A.L.R. 129;
happening of an event without any human agency, Terry
v. Woodmen Accident Co., 225 Mo.App. 1223, 34 S.W.2d
163, 164. It has been said, moreover, that the word "ac-
cident" does not have a settled legal signification; Klop-
fenstein v. Union Traction Co., 112 Kan. 770, 212 P. 1097,
1098; and that in its ordinary meaning it does not nega-
tive the idea of negligence on the part of the person whose
physical act caused the occurrence. Campbell v. Jones, 73
Wash. 688, 132 P. 635, 636. Not merely inevitable casual-
ty or the act of providence, or what is technically called
vis major. or irresistible force. Gardner v. State, 1 N.Y.
S.2d 994, 997, 166 Misc. 113.
See Act of God.
Automobiles
The word "accident" as used in automobile lia-
bility policy requiring notice of any "accident"
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ACCION
to be given to the insurer as a condition precedent
to liability means an untoward and unforeseen
occurrence in the operation of the automobile
which results in injury to the person or property
of another. Ohio Casualty Ins. Co. v. Marr, C.C.
A.Okl., 98 F.2d 973, 975.
Connotes event which occurs without one's foresight or
expectation, and does not exclude negligence. American
Indemnity Co. v. Jamison, Tex.Civ.App., 62 S.W.2d 197;
without intention or design, Rothman v. Metropolitan
Casualty Ins. Co., 134 Ohio St. 241, 16 N.E.2d 417, 421, 117
A. L. R. 1169.
The word "accident", requiring operator of vehicle to
stop immediately in case of accident, contemplates any
situation occurring on the highway wherein he so operates
his automobile as to cause injury to the property or person
of another using the same highway. State v. Masters, 10G
W.Va. 46, 144 S.E. 718, 719.
Equity
Such an unforeseen event, misfortune, loss, act,
or omission as is not the result of any negligence
or misconduct in the party. Engler v. Knoblaugh,
131 Mo.App. 481, 110 S.W. 16.
Unforeseen and undesigned event, productive of
disadvantage. Wharton. Surprise is used inter-
changeably. State ex rel. Hartley v. Innes, 137
Mo.App. 420, 118 S.W. 1168.
Occurrence, not the result of negligence or misconduct of
the party seeking relief in relation to a contract, as was
not anticipated by the parties when the same was entered
into, and which gives an undue advantage to one of them
over another in a court of law. White & Hamilton Lum-
ber Co. v. Foster, 157 Ga. 493, 122 S.E. 29, 30.
Insurance Contracts
An accident within accident insurance policies is
an event happening without any human agency,
or, if happening through such agency, an event
which, under circumstances, is unusual and not
expected by the person to whom it happens. Size-
more v. National Casualty Co., 108 W.Va. 550, 151
S.E. 841.
Sudden and instant happening, referable to definite and
fixed period of time. Jackson v. Employers' Liability As-
sur. Corporation, 248 N.Y.S. 207, 210, 139 Misc. 686.
May be inflicted intentionally and maliciously by one
not the agent of the insured, if unintentional on the part
of the insured. Goodwin v. Continental Casualty Co., 175
Okl. 469, 53 P.2d 241, 243.
A more comprehensive term than "negligence," and in
its common signification the word means an unexpected
happening without intention or design. Sontag v. Galer,
279 Mass. 309, 181 N.E. 182, 183.
Accidental' injury or death is an unintended and unde-
signed result arising from acts done, while injury or death
by "accidental means" is a result arising from acts unin-
tentionally done. Adams v. Metropolitan Life Ins. Co., 136
Pa.Super. 454, 7 A.2d 544, 547.
Maritime Law and Marine Insurance
"Accidents of navigation" or "accidents of the
sea" are such as are peculiar to the sea or to usual
navigation or the action of the elements, which
do not happen by the intervention of man, and
are not to be' avoided by the exercise of proper
prudence, foresight, and skill. The G. R. Booth,
19 S.Ct. 9, 171 U.S. 450, 43 L.Ed. 234. See also
Perils of the Sea.
Practice
That which ordinary prudence could not have
guarded against. Cupples v. Zupan, 35 Idaho
458, 207 P. 328, 329. An event happening unex-
pectedly and without fault; an undesigned and
unforeseen occurrence of an afflictive or unfor-
tunate character; a casualty or mishap. Allen
v. State, 13 Okl.Cr. 533, 165 P. 748; Baird v. Ken-
sal Light & Power Co., 246 N.W. 279, 282, 63 N.D.
88; drunkenness of juror during recess required
discharge of jury. Fetty v. State, 119 Neb. 619,
230 N.W. 440, 442.
Workmen's Compensation
Term "accident," within Workmen's Compensa-
tion Act, has been defined as a befalling; an event
that takes place without one's foresight or ex-
pectation; an undesigned, sudden, and unexpected
event; chance; contingency; often, an unde-
signed and unforeseen occurrence of an afflictive
or unfortunate character; casualty; mishap; as,
to die by an accident. Its synonyms are chance,
contingency, mishap, mischance, misfortune, dis-
aster, calamity, catastrophe. Term "accidental"
has been defined as happening by chance, or un-
expectedly; taking place not according to the
usual course of things; casual; fortuitous; as,
an accidental visit. Its synonyms are undesigned,
unintended, chance, unforeseen, unexpected, un-
premeditated; accessory, collateral, secondary,.
subordinate; extrinsic, extraneous, additional,
adscititious, dependent, conditional. Indian Ter-
ritory Illuminating Oil Co. v. Williams, 157 Okl.
80, 10 P.2d 1093, 1094.
With or without negligence. Great Atlantic &
Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d
87, 88.
Not technical legal term. Arquin v. Industrial
Commission, 349 Ill. 220, 181 N.E. 613, 614,
ACCIDENTAL. Happening by chance, or unex-
pectedly; taking place not according to usual
course of things; casual; fortuitous. Morris v.
New York Life Ins. Co., C.C.A.Md., 49 F.2d 62, 63;
Murphy v. Travelers Ins. Co., Neb., 2 N.W.2d 576,
578, 579.
ACCIDENTAL KILLING. One resulting from an
act which is lawful and lawfully done under a
reasonable belief that no harm is possible;—dis-
tinguished from "involuntary manslaughter,"
which is the result of an unlawful act, or of a law-
ful act done in an unlawful way. Rowe v. Com-
monwealth, 206 Ky. 803, 268 S.W. 571, 573.
ACCIDENTAL VEIN. See Vein.
ACCIDERE. Lat. To fall; fall in; come to
hand; happen. Judgment is sometimes given
against an executor or administrator to be satis-
fied out of assets quando acciderint;  e., when
they shall come to hand. See Quando Acciderint.
ACCION. In Spanish law. A right of action;
also the method of judicial procedure for the
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ACCIPERE
recovery of property or a debt. Escriche, Die.
Leg. 49. Wilder v. Lambert, 91 Tex. 510, 44 S.W.
281, 284.
ACCIPERE QUID UT JUSTITIAM FACIAS, NON
EST TAM ACCIPERE QUAM EXTORQUERE.
To accept anything as a reward for doing justice
is rather extorting than accepting. Lofft, 72.
ACCIPITARE. To pay relief to lords of manors.
Capitali domino accipitare,  e., to pay a relief,
homage, or obedience to the chief lord on becom-
ing his vassal. Fleta, lib. 2, c. 50.
ACCOLA.
Civil Law
One who inhabits or occupies land near a place,
as one who dwells by a river, or on the bank of
a river. Dig. 43, 13, 3, 6.
Feudal Law
A husbandman; an agricultural tenant; a ten-
ant at a manor. Spelman. A name given to a
class of villeins in Italy. Barr, St. 302.
ACCOMENDA. In maritime law. A contract be-
tween the owner of goods and the master of a
ship, by which the former intrusts the property to
the latter to be sold by him on their joint ac-
count.
In such case, two contracts take place : First, the con-
tract called mandatum, by which the owner of the proper-
ty gives the master power to dispose of it; and the con-
tract of partnership, in virtue of which the profits are to be
divided between them. One party runs the risk of losing
his capital; the other, his labor. If the sale produces no
more than first cost, the owner takes all the proceeds. It
is only the profits which are to be divided. Emerig.Mar.
Loans, § 5.
ACCOMMODATED PARTY. One to whom the
credit of the accommodation party is loaned, and
is not necessarily the payee, since the inquiry al-
ways is as to whom did the maker of the paper
loan his credit as a matter of fact. Wilhoit v.
Seavall, 121 Kan. 239, 246 P. 1013, 1015, 48 A.L.R.
1273; not third person who may receive advan-
tage, State v. Banta, 148 Okl. 239, 299 P. 479, 483.
First Nat. Bank v. Boxley, 129 Okl. 159, 264 P.
184, 186, 64 A.L.R. 588.
ACCOMMODATION. An arrangement or engage-
ment made as a favor to another, not upon a con-
sideration received; something done to oblige, us-
ually spoken of a loan of money or commercial
paper; also a friendly agreement or composition
of differences. Abbott; Sales v. Martin, 173 Ky.
616, 191 S.W. 480, 482. The word implies no con-
sideration. William D. Seymour & Co. v. Castell,
160 La. 371, 107 So. 143, 145.
"While a party's intent may be to aid a maker of note
by lending his credit, if he seeks to accomplish thereby
legitimate objects of his own, and not simply to aid maker,
the act is not for 'accommodation.' " Bazer v. Grimmett,
16 La.App. 613, 135 So. 54, 56.
ACCOMMODATION ACCEPTANCE. The ac-
ceptance of accommodation paper.
ACCOMMODATION BILL OR NOTE. See Ac-
commodation Paper.
ACCOMMODATION INDORSEMENT. See In-
dorsement.
ACCOMMODATION INDORSER. A party who
places his name to a note without consideration
for purpose of benefiting or accommodating some
other party. Stubbins Hotel Co. v. Bassbarth,
43 N.D. 191, 174 N.W. 217, 218; McDaniel v. Al-
toona State Bank, 126 Kan. 719, 271 P. 394.
ACCOMMODATION LANDS. Land bought by a
builder or speculator, who erects houses thereon,
and then leases portions thereof upon an im-
proved ground-rent.
ACCOMMODATION MAKER. One who puts his
name to a note without any consideration with the
intention of lending his credit to the accommo-
dated party. In re Chamberlain's Estate, Cal.
App., 109 P.2d 449, 454.
In this connection "without consideration" means "with-
out consideration to the accommodating party directly."
Warren Nat. Bank, Warren, Pa., v. Suerken, 45 Cal.App.
736, 188 P. 613, 614. One who receives no part of the pro-
ceeds, which are used exclusively for another maker's bene-
fit, as in discharging his own personal obligation. Backer
v. Grummett, 39 Cal.App. 101, 178 P. 312, 313. Must not re-
ceive any benefit or consideration directly or indirectly,
and transaction must be one primarily for the benefit of
the payee. First Trust Co. of Lincoln v. Anderson, 135
Neb. 397, 281 N.W. 796, 798; Void of present or anticipated
personal profit, gain, or advantage. Robertson v. City Nat.
Bank of Bowie, 120 Tex. 226, 36 S.W.2d 481, 483.
Incidental benefit to party insufficient. Morrison v.
Painter, Mo.App., 170 S.W.2d 965, 970.
ACCOMMODATION NOTE. One to which ac-
commodating party has put his name, without
consideration, to accommodate some other party,
who is to issue it and is expected to pay it.
Brown Carriage Co. v. Dowd, 155 N.C. 307, 71
S.E. "721, 724; Farmers Loan & Trust Co. v.
Brown, 182 Iowa, 1044, 165 N.W. 70, 73.
ACCOMMODATION PAPER. An accommoda-
tion bill or note is one to which the accommodat-
ing party, be he acceptor, drawer, or indorser, has
put his name, without consideration, for the pur-
pose of benefiting or accommodating some other
party who desires to raise money on it, and is
to provide for the bill when due. Miller v. Lar-
ned, 103 Iii. 562; Crothers v. National Bank of
Chesapeake City, 158 Md. 587, 149 A. 270, 272;
Hickox v. Hickox, Tex.Civ.App., 151 S.W.2d 913,
917.
Must be executed for the purpose of loaning credit, and
incidental benefit to party is insufficient. Morrison v.
Painter, Mo.App., 17C .3.W.2d 965, 970.
ACCOMMODATION PARTY. One who has
signed an instrument as maker, drawer, acceptor,
or indorser without receiving value therefor, and
for purpose of lending his name to some other
person as means of securing credit. Bachman v.
Junkin, 129 Neb. 165, 260 N.W. 813.
The term does not include one who, for the accommoda-
tion of the maker, guaranteed the payment of a note.
Noble v. Beeman-Spaulding-Woodward Co., 65 Or. 93, 131
P. 1006, 1010.
Indorser, Myrtilles, Inc., v. Johnson, 124 Conn. 177, 199
A. 115, 117; president and directors of bank, Davis v. Holt,
Federal Deposit Ins. Corporation, Intervenor, Mo.App., 154
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ACCORD
S.W.2d 595. 597; apparent comaker. McLendon v. Lane,
51 Ga.App. 409, 180 S.E. 746; to make note look better for
payee bank, Pirtle v. Johnson, 145 Kan. 8, 64 P.2d 2, 4.
ACCOMMODATION ROAD. A road opened for
benefit of certain individuals to go from and to
their homes, for service of their lands, and for
use of some estates exclusively. Civ.Code La.
art. 706.
ACCOMMODATION TRAIN. One designed to
accommodate local travel by stopping at most
stations. Gray v. Chicago, M. & St. P. R. Co., 189
Ill. 400, 59 N.E. 950, 951. In another aspect it is
a train designed to carry passengers as well as
freight. White v. Ill. Cent. R. Co., 99 Miss. 651,
55 So. 593, 595.
ACCOMMODATION WORKS. Works which a
railway company is required to make and main-
tain for the accommodation of the owners or occu-
piers of land adjoining the railway; e. g., gates,
bridges, culverts, fences, etc. 8 Vict. c. 20, § 68.
ACCOMMODATUM. The same as commodatum,
q.
ACCOMPANY. To go along with. Webster's
Diet. To go with or attend as a companion or as-
sociate, to occur in association with. United
States v. Lee, C.C.A.Wis., 131. F.2d 464, 466.
The word has been defined judicially in cases involving
varied facts; thus, a boy driver was held not accompany-
ing the team when he was runnning to stop it. Willis v.
Semmes, 111 Miss. 589, 71 So. 865, 866. A motion based
on answer already deposited with the clerk of court is
accompanied with copy of answer. Los Angeles County v.
Lewis, 179 Cal. 398, 177 P. 154, 155. An automobile driver
under sixteen is not accompanied by an adult person unless
the latter exercises supervision over the driver. Rush v.
McDonnell, 214 Ala. 47, 106 So. 175, 179. An unlicensed
driver is not accompanied by a licensed driver unless the
latter is near enough to render advice and assistance.
Hughes v. New Haven Taxicab Co., 87 Conn. 416, 87 A.
721.
ACCOMPLICE. In criminal law. A person who
knowingly, voluntarily, and with common intent
with the principal offender unites in the commis-
sion of a crime. State v. Keithley, 83 Mont. 177,
271 P. 449, 451, People v. Frahm, 107 Cal.App. 253,
290 P. 678, 682, State v. Coroles, 74 Utah, 94, 277
P. 203, 204. One who is in some way concerned or
associated in commission of crime; partaker of
guilt; one who aids or assists, or is an accessory.
McLendon v. U. S., C.C.A.Mo., 19 F.2d 465, 466.
Equally concerned in the commission of crime.
Fryman v. Commonwealth, 289 Ky. 540, 159 S.W.
2d 426, 429.
An "accomplice" is one who is guilty of complicity in
crime charged, either by being present and aiding or abet-
ting in it, or having advised and encouraged it, though
absent from place when it was committed, though mere
presence, acquiescence, or silence, in the absence of a duty
to act, is not enough, no matter how reprehensible it may
be, to constitute one an accomplice. State v. Arnold, 84
Mont. 348. 275 P. 757, 760; presence unnecessary. King
v. State. 135 Tex.Cr.11. 378, 120 S.W.2d 590, 592. Knowl-
edge and concealment not sufficient. Wallis v. State, Okl.
Cr.App., 292 P. 1056, 1057.
Falsely denying having knowledge of crime not of itself
sufficient. Tipton v. State, 126 Tex.Cr.R. 439, 72 S.W.2d
290, 293.
Black's Law Dictionary Revised 4th Ed.-3
Thief and receiver of stolen property ordinarily not
"accomplices". People v. Lima, 25 Cal.2d 573, 154 P.2d
698, 700, 701.
Giver of bribe is an "accomplice". Turner v. State, 58
Ga.Lpp. 775, 199 S.E. 837, 839, Contra, State v. Emory, 55
Idaho 649, 46 P.2d 67, 70.
As specifically applied to witnesses for the state and the
necessity for corroborating them, "accomplice" includes all
persons connected with the offense by an unlawful act or
omission either before, at the time of, or after the com-
mission of the offense, whether such witness was present
or participated in the crime or not. Chandler v. State, 89
Tex.Cr.R. 309, 230 S.W. 1002, 1003.
Mere presence is insufficient. Snowden v. State, 27 Ala.
App. 14, 165 So. 410.
Suborned witness is an "accomplice". People v. Nicosia,
4 N.Y.S.2d 35, 37, 166 Misc. 597. Contra. State v. De
Vaughn, 2 Cal.App.2d 572, 39 P.2d 223, 224.
Receiver of bribe not "accomplice" of giver. People v.
Martin, 114 Cal.App. 392, 300 P. 130, 132.
The term includes all the participes criminis, Darden v.
State, 12 Ala.App. 165, 68 So. 550, 551, whether they are
considered, in strict legal propriety, as principals in the
first or second degree, or merely as accessories before or
after the fact. In re Rowe, 23 C.C.A. 103, 77 F. 161; Luck
v. State, 125 Tex.Cr.R. 152, 67 S.W.2d 302. But in Ken-
tucky it has been held that "accomplice" does not include
an accessory after the fact. See, however, Commonwealth
v. Barton, 153 Ky. 465, 156 S.W. 113, 114. And the same
rule has been announced elsewhere. State v. Lyons, 144
Minn. 348, 175 N.W. 689, 691. A feigned accomplice has
been defined as one who co-operates with view of aiding
justice to detect a crime. State v. Verganadis, 50 Nev. 1,
248 P. 900, 903; Decoy not "accomplice". U. S. v. Becker,
C.C.A.N.Y., 62 F.2d 1007, 1009.
Liquor control board inspector, Magee v. State, 135 Tex.
Cr.R. 381, 120 S.W.2d 248, 249.
ACCORD, n. A satisfaction agreed upon between
the party injuring and the party injured which,
when performed, is a bar to all actions upon this
account. Kromer v. Heim, 75 N.Y. 576, 31 Am.
Rep. 491; Buob v. Feenaughty Machinery Co.,
191 Wash. 477, 71 P.2d 559, 564. An agreement to
accept, in extinction of an obligation, something
different from or less than that to which the per-
son agreeing to accept is entitled. Whepley Oil
Co. v. Associated Oil Co., 6 Cal.App.2d 94, 44 P.2d
670, 677.
Substitution of an agreement between the party injur-
ing and the party injured, in view of the original obliga-
tion. Barbarich v. Chicago, M., St. P. & P. Ry. Co., 92
Mont. 1, 9 P.2d 797, 799.
It may arise both where the demand itself is unliqui-
dated or in dispute, and where the amount and nature of
the demand is undisputed, and it is agreed to give and take
less than the demand. J. F. Morgan Paving Co. v. Carroll,
211 Ala. 121, 99 So. 640, 641.
"Payment," as distinguished from accord, means full
satisfaction. State v. Tyler County State Bank, Tex.Com.
App., 277 S. W. 625, 627, 42 A.L.R. 1347.
See Accord and Satisfaction; Compromise and
Settlement.
ACCORD, v. In practice. To agree or concur,
as one judge with another. "I accord." Eyre,
C. J., 12 Mod. 7. "The rest accorded." 7 Mod.
361.
ACCORD AND SATISFACTION. An agreement
between two persons, one of whom has a right of
action against the other, that the latter should do
or give, and the former accept, something in sat-
isfaction of the right of action different from, and
usually less than, what might be legally enforced.
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When the agreement is executed, and satisfaction
has been made, it is called "accord and satisfac-
tion." Rogers v. Spokane, 9 Wash. 168, 37 P. 300.
It is discharge of contract, or of disputed claim arising
either from contract or from tort, by substitution of agree-
ment between parties in satisfaction of such contract or
disputed claim and execution of the agreement. Nelson v.
Chicago Mill & Lumber Corporation, C.C.A.Ark., 76 F.2d
17, 100 A.L.R. 87.
"Accord and satisfaction" results where there is assent
to acceptance of payment in compromise of dispute, or in
extinguishment of liability uncertain in amount, or where
payment, coupled with condition whereby use of money
will be wrongful if condition is ignored, is accepted. Hud-
son v. Yonkers Fruit Co., 258 N.Y. 168, 179 N.E. 373.
Regardless of whether claim is liquidated or unliquidated.
May Bros. v. Doggett, 155 Miss. 849, 124 So. 476, 478.
Settlement of claims under insurance policies. Lehaney
v. New York Life Ins. Co., 307 Mich. 125, 11 N.W.2d 830,
832.
Accepted amount tendered by insurer as cash surrender
value of policies. Greenberg v. Metropolitan Life Ins. Co.,
379 Ill. 421, 41 N.E.2d 495, 497, 140 A.L.R. 775.
See, also, Sierra & San Francisco Power Co. v. Uni-
versal Electric & Gas Co., 197 Cal. 376, 241 P. 76, 80.
More recently, a broader application of the doctrine has
been made, where one promise or agreement is set up in
satisfaction of another.  Continental Nat. Bank v. Mc-
Geoch, 92 Wis. 286, 66 N.W. 606.
An "accord and satisfaction arises" where parties, by a
subsequent agreement, have satisfied the former one, and
the latter agreement has been executed. The execution
of a new agreement may itself amount to a satisfaction,
where it is so expressly agreed by the parties ; and with-
out such agreement, if the new promise is founded on a
new consideration, in which case the taking of the new
consideration amounts to the satisfaction of the former
contract.
A dispute or controversy is not an essential element of
some forms of accord and satisfaction, as an accord and
satisfaction of a liquidated claim by the giving and accept-
ance of a smaller sum and some additional consideration,
such as new security, payment of the debt before due,
payment by a third person, or where property or personal
services are accepted from an insolvent debtor in satis-
faction. Burgamy v. Holton, 165 Ga. 384, 141 S.E. 42, 47.
"Composition settlement" contemplates agreement not
only between debtor and creditors, but also among credi-
tors, whereas "accord and satisfaction" is agreement
between debtor and single creditor. Russell v. Douget,
La.App., 171 So. 501, 502.
"Novation" is a species of "accord and satisfaction".
Munn v. Town of Drakesville, 226 Iowa 1040, 285 N.W. 644,
648.
See Acceptance; Composition; Compromise;
Novation.
ACCORDANCE. Agreement; harmony; con-
cord; conformity. Webster, Dict.; City and
County of San Francisco v. Boyd, 22 Cal.2d 685,
140 P.2d 666, 668.
An act done .in accordance with a purpose once formed
is not necessarily an act done in pursuance of such pur-
pose, for the purpose may have been abandoned before the
act was done. State v. Robinson, 20 W.Va. 713, 742. A
charter providing that a city's power of taxation shall be
exercised "in accordance with" the state Constitution and
laws means in a manner not repugnant to or in conflict
or inconsistent therewith. City of Norfolk v. Norfolk
Landmark Pub. Co., 95 Va. 564, 28 S.E. 959, 960. The
words "in accordance with this act" as used in N. M.
Laws 1899, c. 22, § 25, dealing with validity of tax titles,
was not improperly interpreted as meaning "under this
act.—  Straus v. Foxworth, 231 U.S. 162, 34 S.Ct. 42, 44,
58 L.Ed. 168.
ACCORDANT. Fr. and Eng. Agreeing; con-
curring. "Baron Parker, accordant," Hardr. 93;
"Holt, C. J., accordant," 6 Mod. 299; "Powys, J.,
accord," "Powell, J., accord," Id. 298.
ACCOUCHEMENT. The act of a woman in giv-
ing birth to a child. The fact of the accouche-
ment, which may be proved by the direct testi-
mony of one who was present, as a physician or
midwife, is often important evidence in proving
parentage.
ACCOUNT. A detailed statement of the mutual
demands in the nature of debt and credit between
parties, arising out of contracts or some fiduciary
relation. Portsmouth v. Donaldson, 32 Pa. 202, 72
Am.Dec. 782.
A statement in writing, of debts and credits, or
of receipts and payments; a list of items of debts
and credits, with their respective dates. Rens-
selaer Glass Factory v. Reid, 5 Cow., N.Y., 593.
An "account" is defined as a statement of pecuniary
transactions; a record or course of business dealings
between parties ; a list or statement of monetary transac-
tions, such as payments, losses, sales, debits, credits, etc.,
in most cases showing a balance or result of comparison
between items of an opposite nature; and is not held to
include a liability for unliquidated damages resulting
from the breach of an entire contract, expressing only
an entire consideration. Harnischfeger Sales Corporation
v. Pickering Lumber Co., C.C.A.Mo., 97 F.2d 692, 695.
The word is sometimes used to denote the balance, or
the right of action for the balance, appearing due upon a
statement of dealings ; as where one speaks of an assign-
ment of accounts ; but there is a broad distinction between
an account and the mere balance of an account, resembling
the distinction in logic between the premises of an argu-
ment and the conclusions drawn therefrom. A balance is
but the conclusion or result of the debit and credit sides
of an account. It implies mutual dealings, and the exist-
ence of debt and credit, without which there could be no
balance. McWilliams v. Allan, 45 Mo. 574.
A generic term, difficult to define, having various mean-
ings, depending somewhat upon the surrounding circum-
stances and the connection in which it is used. Wolcott
& Lincoln v. Butler, 155 Kan. 105, 122 P.2d 720, 722, 141
A. L. R. 356.
Flexible in meaning, meaning valuation; worth; value.
Ex parte Means, 200 Ala. 378, 76 So. 294; may refer either
to past or future indebtedness, Semel v. Braun, 157 N.Y.
S. 907, 908, 94 Misc. 238; an itemized account, Brooks v.
International Shoe Co., 132 Ark. 386, 200 S.W. 1027.
Closed
An account to which no further additions can
be made on either side, but which remains stil.
open for adjustment and set-off, which distinguish-
es it from an account stated. Mandeville v. Wil-
son, 5 Cranch 15, 3 L.Ed. 23.
Current
An open or running or unsettled account be-
tween two parties; the antithesis of an account
stated. See Watson v. Gillespie, 200 N.Y.S. 191,
198, 205 App.Div. 613; Caffarelli Bros. v. Lyons
Bros. Co., Tex.Civ.App., 199 S.W. 685, 686; Con-
tinental Casualty Co. v. Easley, Tex.Civ.App., 290
S.W. 251, 253.
An "account current" is an active checking account,
through which credit and debit items are constantly pass-
ing. In re Fricke's Will, 202 N.Y.S. 906, 912, 122 Misc.
427.
All items must constitute one demand. Meyers v. , Bar-
rett & Zimmerman, 196 Minn. 276, 264 N.W. 769, 773.
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ACCOUNT FOR
Duties
Duties payable by the English customs and in-
land revenue act, 1881, (44 Vict. c. 12, § 38,) on a
donatio mortis causa, or on any gift, the donor of
which dies within three months after making it,
or on joint property voluntarily so created, and
taken by survivorship, or on property taken under
a voluntary settlement in which the settlor had a
life-interest.
Mutual
Accounts comprising mutual credits between
the parties; or an existing credit on one side
which constitutes a ground for credit on the other,
or where there is an understanding that mutual
debts shall be a satisfaction or set-off pro tanto
between the parties. McConnell v. Arkansas Cof-
fin Co., 172 Ark. 87, 287 S.W. 1007.
Open
An account which has not been finally settled
or closed, but is still running or open to future ad-
justment or liquidation. Open account, in legal
as well as in ordinary language, means an indebt-
edness subject to future adjustment, and which
may be reduced or modified by proof. James v.
Lederer-Strauss & Co., 32 Wyo. 377, 233 P. 137,
139.
An open account can become an account stated only by
the debtor's admission of liability, or failure to deny lia-
bility for a reasonable time after receipt of account.
Brooks v. White, 187 N. C. 656, 122 S.E. 561.
Payable
"Accounts payable" are contract obligations ow-
ing by a person on open account. West Virginia
Pulp & Paper Co. v. Karnes, 120 S.E. 321, 322, 137
Va. 714; State Tax Commission v. Shattuck, 38
P.2d 631, sn, 44 Ariz. 379.
Public
The accounts kept by officers of the nation,
state, or kingdom, of the receipt and expenditure
of the revenues of the government.
Rendered
An account made out by the creditor, and pre-
sented to the debtor for his examination and ac-
ceptance. When accepted, it becomes an account
stated. Freeland v. Cocke, 17 Va. (3 Munf.) 352.
Settled
One in which the balance has been in fact paid,
thereby differing from an account stated. See
Dempsey v. McGinnis, 219 S.W. 148, 150, 203 Mo.
App. 494.
Stated
The settlement of an account between the par-
ties, with a balance struck in favor of one of
them; an account rendered by the creditor, and
by the debtor assented to as correct, either ex-
pressly, or by implication of law from the failpre
to object. Preston v. La Belle View Corporation,
212 N.W. 286, 288, 192 Wis. 168.
Monthly statements rendered by bank without deposi-
tor's objection, Pierce & Garnet v. Live Stock Nat. Bank,
213 Iowa 1388, 239 N.W. 580, 583.
Unperformed promise of one party to pay a stated sum.
Hammond Lumber Co. v. Richardson Building & Lumber
Co., 209 Cal. 82, 285 P. 851, 853.
An agreement between 'parties who have had previous
transactions of a monetary character that all the items of
the account representing such transactions, and the bal-
ance struck, are correct, together with a promise, express
or implied, for the payment of such balance. Pelavin v.
Fenton, Davis & Boyle, 255 Mich. 680, 239 N.W. 268, 269.
No particular form is necessary; it may be oral, writ-
ten, partly oral and partly written. Murphy v. Smith, 26
Ariz. 394, 226 P. 206, 208. An account stated is not ordi-
narily recognized in Virginia and West Virginia, except
as between merchant and merchant, and principal and
agent, with mutual accounts. Price Hill Colliery Co. v.
Pinkney, 96 W.Va. 74, 122 S.E. 434, 436. This was also a
common count in a declaration upon a contract under
which the plaintiff might prove an absolute acknowledg-
ment by the defendant of a liquidated demand of a fixed
amount, which implies a promise to pay on request. It
might be joined with any other count for a money demand.
The acknowledgment or admission must have been made
to the plaintiff or his agent. Wharton.
ACCOUNT, or ACCOUNT RENDER. In prac-
tice. "Account," sometimes called "account ren-
der," was a form of action at common law against
a person who by reason of some fiduciary relation
(as guardian, bailiff, receiver, etc.) was bound to
render an account to another, but refused to do so.
Portsmouth v. Donaldson, 32 Pa. 202, 72 Am.Dec.
782; Peoples Finance & Thrift Co. of Visalia v.
Bowman, 137 P.2d 729, 731, .58 Cal.App.2d 729.
"Action of account" is common-law action to compel
person to render account for property or money of another.
Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606, 609. Equita-
ble in nature. Gaines Bros. Co. v. Gaines, 188 Okl. 300,
108 P.2d 177, 179.
In England, this action early fell into disuse; and as it is
one of the most dilatory and expensive actions known to
the law, and the parties are held to the ancient rules of
pleading, and no discovery can be obtained, it never was
adopted to any great extent in the United States. But in
some states this action was employed, chiefly because there
were no chancery courts in which a bill for an accounting
would lie. The action is peculiar in the fact that two
judgments are rendered, a preliminary judgment that the
defendant do account with the plaintiff (quod computet)
and a final judgment (quod recuperet) after the account-
ing for the balance found due. Field v. Brown, 146 Ind.
293, 45 N.E. 464, 16 Blatchf. 178.
ACCOUNT-BOOK. A book kept by a merchant,
trader, mechanic, or other person, in which are
entered from time to time the transactions of his
trade or business. Greenl. Ev. §§ 115-118.
Volumes bound or sewed together in which accounts are
regularly kept, and excluding collections of loose and inde-
terminate memoranda. W. T. Raleigh Co. v. Rotenberry,
174 Miss. 319, 164 So. 5, 6. May now include modern book
of detachable leaves, but leaves must be of such appropri-
ate uniformity of material as reasonably to constitute
leaves of account book in which they are contained. W. T.
Raleigh Co. v. Rotenberry, 174 Miss. 319, 164 So. 5, 6.
ACCOUNT COMPUTATIO. The primary idea of
"account computatio", whether in proceedings of
courts of law or equity, is some matter of debt
and credit, or demand in nature thereof. Cole-
man v. Kansas City, 351 Mo. 254, 173 S.W.2d 572,
576.
ACCOUNT FOR. To pay over the money to the
person entitled thereto. U. S. v. Rehwald, D.C.
Cal., 44 F.2d 663.
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ACCOUNT IN BANK
ACCOUNT IN BANK, See Bank Account.
ACCOUNTABLE. Subject to pay; responsible;
liable. Where one indorsed a note "A. C. account-
able," it was held that, under this form of indorse-
ment, he had waived demand and notice. Furber
v. Caverly, 42 N.H. 74.
ACCOUNTABLE RECEIPT. An instrument ac-
knowledging the receipt of money or personal
property, coupled with an obligation to account
for or pay or deliver the whole or some part of it
to some person. State v. Riebe, 7 N.W. 262, 27
Minn. 315.
ACCOUNTANT. One who keeps accounts; a
person skilled in keeping books or accounts;
an expert in accounts or bookkeeping. See U. S.
ex rel. Liebmann v. Flynn, D.C.N.Y., 16 F.2d 1006,
1007; Frazer v. Shelton, 150 N.E. 696, 701, 320
Ill. 253.
One competent to design and control systems of accounts.
Roberts v. Hosking, 95 Mont. 562, 28 P.2d 199, 201.
A person who renders an account: an executor, guard-
ian, etc.
ACCOUNTANT GENERAL, or ACCOMPTANT
GENERAL. An officer of the court of chancery,
appointed by act of parliament to receive all
money lodged in court, and to place the same in
the Bank of England for security. 12 Geo. I. c.
32; 1 Geo. IV, c. 35; 15 & 16 Vict. c. 87, §§ 18-22,
39. See Daniell, Ch.Pr. (4th Ed.) 1607 et seq.
The office, however, has been abolished by 35 &
36 Vict. c. 44, and the duties transferred to her
majesty's paymaster general.
ACCOUNTANTS, CHARTERED. Persons skilled
in the keeping and examination of accounts, who
are employed for the purpose of examining and
certifying to the correctness of accounts of cor-
porations and others. British Commonwealth
equivalent of Certified Public Accountant.
ACCOUNTING. An act or system of making up
or settling accounts; a statement of account, or
a debit and credit in financial transactions. Kan-
sas City v. Burns, 137 Kan. 905, 22 P.2d 444.
Rendition of an account, either voluntarily or by order
of a court. Buxton v. Edwards, 134 Mass. 567, 578. In the
latter case, it imports a rendition of a judgment for the
balance ascertained to be due. Apple v. Smith, 106 Kan.
717, 190 P. 8, 10. The term may include payment of the
amount due. Pyatt v. Pyatt, 46 N.J.Eq. 285, 18 A. 1048.
ACCOUNTS RECEIVABLE. Contract obligations
owing to a person on open account. West Vir-
ginia Pulp & Paper Co. v. Karnes, 137 Va. 714,
120 S.E. 321, 322; charge accounts, Haverfield Co.
v. Evatt, 143 Ohio St. 58, 54 N.E.2d 149, 152, in-
stallment balances, Duke Power Co. v. Hillsbor-
ough Tp., Somerset County, 20 N.J.Misc. 240, 26
A.2d 713, 725.
ACCOUPLE. To unite; to marry. Ne unques
accouple, never married.
ACCREDIT. In international law. (1) To ac-
knowledge; to receive as an envoy in his public
character, and give him credit and rank accord-
ingly. Burke. (2) To send with credentials as
an envoy. Webst.Dict. This latter use is now the
accepted one.
ACCREDITED LAW SCHOOL. "An accredited
law school" and a "law school approved by this
court," are synonymous. Ex parte State Board
of Law Examiners of Florida, 141 Fla. 706, 193
So. 753.
ACCREDITED REPRESENTATIVE. As respects
service of process, representative having general
authority to act. Rorick v. Stilwell, 101 Fla. 4,
133 So. 609, 615.
ACCREDULITARE. L. Lat. In old records.
To purge an offense by oath. Blount; Whishaw.
ACCRESCERE. In the civil and old English law.
To grow to; to increase; to pass to, and become
united with, as soil to land per alluvionem. Dig.
41, 1, 30, pr. The term is used in speaking of
islands which are formed in rivers by deposit;
Calvinus, Lex.; 3 Kent 428. It is used in a re-
lated sense in the common-law phrase jus accres-
cendi, the right of survivorship; 1 Washb.R.P.
426.
Pleading
To commence; to arise; to accrue. Quod actio
non accrevit infra sex anos, that the action did
not accrue within six years; 3 Chit.P1. 914.
ACCRETION. The act of growing to a thing;
usually applied to the gradual and imperceptible
accumulation of land by natural causes, as out of
the sea or a river.
Civil Law
The right of heirs or legatees to unite or aggre-
gate with their shares or portions of the estate
the portion of any co-heir or legatee who refuses
to accept it, fails to comply with a condition, be-
comes incapacitated to inherit, or dies before the
testator. Anderson v. Lucas, 204 S.W. 989, 993,
140 Tenn. 336. Under a deed of trust: Miller v.
Douglass, 192 Wis. 486, 213 N.W. 320, 322.
Mortgages
As used in a mortgage on cattle, with all in-
crease thereof and accretions thereto, the word
"accretions" is not confined to the results of nat-
ural growth, but includes the additions of parts
from without, i. e., of cattle subsequently added
to the herd. Stockyards Loan Co. v. Nichols,
C.C.A.Okl., 243 F. 511, 513, 1 A.L.R. 547.
Realty
Addition of portions of soil, by gradual deposi-
tion through the operation of natural causes, to
that already in possession of owner. St. Louis,
etc., R. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931, 8
L.R.A. 559, 22 Am.St.Rep. 195; 51 L.R.A. 425, n.;
Willett v. Miller, 176 Okl. 278, 55 P.2d 90, 92. Along
banks of navigable or unnavigable stream. Smith
v. Whitney, 105 Mont. 523, 74 P.2d 450, 453, change
in river boundary, Hancock v. Moore, Tex.Civ.
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ACCRUE
App., 137 S.W.2d 45, 51, 52. Tideland artificially
filled was not an "accretion". City of Newport
Beach v. Fager, 39 Cal.App.2d 23, 102 P.2d 438,
442.
Accretion of land is of two kinds : By alluvion, 1. e., by
the washing up of sand or soil, so as to form firm ground;
or by dereliction, as when the sea shrinks below the usual
water-mark. The term "alluvion" is applied to deposit
itself, while "accretion" denotes the act. However, the
terms are frequently used synonymously. Katz v. Patter-
son, 135 Or. 449, 296 P. 54, 55. In determining whether
change in course of river is by "accretion" or "avulsion,"
test is not whether witnesses might see from time to time
that progress has been made, but whether witnesses could
perceive change while it was going on. Goins v. Merry-
man, 183 Okl. 155, 80 P.2d 268, 270. Land uncovered by
gradual subsidence of water is not an "accretion" but a
"reliction." Independent Stock Farm v. Stevens, 128 Neb.
619, 259 N.W. 647, 648.
Trust Property
Receipts other than those ordinarily considered
as income; and ordinary cash dividends, the sole
income, were not accretions. Doty v. C. I. R., C.C.
A.1, 148 F.2d 503, 505.
See Accrue; Avulsion; Alluvion; Reliction.
ACCROACH. To encroach; to exercise power
without due authority. In French law, to delay.
Whishaw.
To attempt to exercise royal power. 4 Bl.Comm. 76. A
knight who forcibly assaulted and detained one of the
king's subjects till he paid him a sum of money was held
to have committed treason, on the ground of accroach-
ment. 1 Hale, P.C. 80.
ACCROCHER. Fr. To delay; retard; put off.
Accrocher un procès, to stay the proceedings in
a suit.
ACCRUAL, CLAUSE OF. See Accruer, Clause of.
ACCRUAL BASIS. A method of keeping accounts
which shows expenses incurred and income earned
for a given period, although such expenses and
income may not have been actually paid or re-
ceived in cash. Orlando Orange Groves Co. v.
Hale, 119 Fla. 159, 161 So. 284.
Right to receive and not the actual receipt determines
inclusion of amount in gross income. When right to
receive an amount becomes fixed, right accrues. H. Liebes
& Co. v. Commissioner of Internal Revenue, C.C.A.9, 90
F.2d 932, 937. Obligations payable to or by taxpayer are
treated as if discharged when incurred. H. Liebes & Co.
v. Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932,
936. Entries are made of credits and debits when liability
arises, whether received or disbursed. Insurance Finance
Corporation v. Commissioner of Internal Revenue, C.C.A.3,
84 F.2d 382. Books showing sales by accounts receivable
and purchases by accounts payable, and set up inventories
at beginning and end of year. Consolidated Tea Co. v.
Bowers, D.C.N.Y., 19 F.2d 382.
ACCRUE. Derived from the Latin, "ad" and
"creso," to grow to. In past tense, in sense of
due and payable; vested. It means to increase;
to augment; to come to by way of increase; to
be added as an increase, profit, or damage. Harts-
field Co. v. Shoaf, 184 Ga. 378, 191 S.E. 693, 695.
Acquired; fell due; made or executed; matured;
occurred; received; vested; was created; was
incurred. H. Liebes & Co. v. Commissioner of
Internal Revenue, C.C.A.9, 90 F.2d 932, 936. To
attach itself to, as a subordinate or accessory
claim or demand arises out of, and is joined to,
its principal. Lifson v. Commissioner of Internal
Revenue, C.C.A.8, 98 F.2d 508.
Produce of money lent. "Interest accrues to principal."
Weiss v. Commissioners of Land Office, 182 Okl. 39, 75 P.2d
1142, 1144. Costs accrue to a judgment.
The term is also used of independent or original
demands, and then means to arise, to happen, to come into
force or existence; to vest; as in the phrase, "The right
of action did not accrue within six years." Amy v. Dubu-
que, 98 U.S. 470, 476, 25 L. Ed. 228. To 'become a present
right or demand; to come to pass. H. Liebes & Co. v.
Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932,
936.
It is distinguished from sustain; Adams v. Brown, 4
Litt. (Ky.) 7; and from owing; Gross v. Partenheimer,
159 Pa. 556, 28 A. 370; Fay v. Holloran, 35 Barb. (N. Y.)
295; it is also distinguished from arise; State v. Circuit
Court of Waushara County, 165 Wis. 387, 162 N.W. 436,
437.
Cause of Action
A cause of action "accrues" when a suit may
be maintained thereon. Dillon v. Board of Pen-
sion Com'rs of City of Los Angeles, 18 Ca1.2d 427,
116 P.2d 37, 39, 136 A.L.R. 800. Whenever one
person may sue another. Hensley v. Conway,
Tex.Civ.App., 29 S.W.2d 416, 418.
Cause of action "accrues," on date that damage is sus-
tained and not date when causes are set in motion which
ultimately produce injury. City of Philadelphia v. Lieber-
man, C.C.A.Pa., 112 F.2d 424, 428. Date of injury. Fred-
ericks v. Town of Dover, 125 N.J.L. 288, 15 A.2d 784, 787.
When actual damage has resulted. National Lead Co. v.
City of New York, C.C.A.N.Y., 43 F.2d 914, 916. As soon
as contract is breached. Wichita Nat. Bank v. United
States Fidelity & Guaranty Co., Tex.Civ.App., 147 S.W.2d
295, 297.
Contracts
The word accrued, as Used in reference to con-
tracts in which process may be sent out of the
country to be served, has reference to the place
where the contract was made and executed.
Phelps v. McGee, 18 Ill, 155, 158.
Taxation
Income "accrues" to taxpayer when there arises
to him a fixed or unconditional right to receive it.
Franklin County Distilling Co. v. Commissioner of
Internal Revenue, C.C.A.6, 125 F.2d 800, 804, 805.
But not unless there is a reasonable expectancy
that the right will be converted into money or its
equivalent. Swastika Oil & Gas Co. v. Commis-
sioner of Internal Revenue, C.C.A.6, 123 F.2d
382, 384.
Where taxpayer makes returns on accrual basis,
item "accrues" when all events occur which fix
amount payable and determine liability of tax-
payer. Hudson Motor Car Co. v. U. S., Ct.C1., 3 F.
Supp. 834, 847.
Tax "accrues" for deduction when all events
have occurred which fix amount of tax and deter-
mine liability of taxpayer for it, although there
has not yet been assessment or maturity. Elm-
hirst v. Duggan, D.C.N.Y., 14 F.Supp. 782, 784.
Estate tax "accrued," immediately on death,
though not payable until one year thereafter.
Ewbank v. U. S., C.C.A.Ind., 50 F.2d 409.
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ACCRUED
ACCRUED COMPENSATION. Awarded compen-
sation, due and payable. Wood Coal Co. v. State
Compensation Com'r, 119 W.Va. 581, 195 S.E. 528,
529,
ACCRUED DEPRECIATION. The lessened serv-
ice value of the utility plant due to its consump-
tion in furnishing service. Wisconsin Telephone
Co. v. Public Service Commission, 232 Wis. 274, 287
N.W. 122, 152. Portion of useful service life
which has expired. State ex rel. City of St. Louis
v. Public Service Commission, 341 Mo. 920, 110 S.
W.2d 749, 768.
ACCRUED RIGHT. As used in Constitution, a
matured cause of action, or legal authority to de-
mand redress. Morley v. Hurst, 174 Okl. 2, 49 P.
2d 546, 548.
ACCRUER (or ACCRUAL), CLAUSE OF. An ex-
press clause, frequently occurring in the case of
gifts by deed or will to persons as tenants in
common, providing that upon the death of one
or more of the beneficiaries his or their shares
shall go to the survivor or survivors. Brown.
The share of the decedent is then said to accrue
to the others.
ACCRUING. Inchoate; in process of maturing.
That which will or may, at a future time, ripen
into a vested right, an available demand, or an
existing cause of action. Hartsfield Co. v. Shoal,
184 Ga. 378, 191 S.E. 693, 695. Arising by way of
increase, growth or profit. It connotes continuing
growth, increase or augmentation. Globe Indem-
nity Co. v. Bruce, C.C.A.Okl., 81 F.2d 143, 153.
ACCRUING COSTS. Costs and expenses incurred
after judgment.
ACCRUING INTEREST. Running or accumulat-
ing interest, as distinguished from accrued or
matured interest; interest daily accumulating on
the principal debt but not yet due and payable.
Gross v. Partenheimer, 159 Pa. 556, 28 A. 370.
ACCRUING RIGHT. One that is increasing, en-
larging, or augmenting. Richards v. Land Co.,
54 F. 209, 4 C.C.A. 290.
ACCT. An abbreviation for "account," of such
universal and immemorial use that the courts
will take judicial notice of its meaning. Heaton
v. Ainley, 108 Iowa, 112, 78 N.W. 798.
ACCUMULATED PROFITS. Earned surplus or
undivided profits. Flint v. Commissioner of Cor-
porations and Taxation, 43 N.E.2d 789, 791, 792, 312
Mass. 204.
Include profits earned and invested. Commissioner of
Corporations and Taxation v. Filoon, 310 Mass. 374, 38
N.E.2d 693, 698, 700.
And they take into account losses, as well as gains. Com-
missioner of Corporations and Taxation v. Church, Mass.,
61 N.E.2d 143, 145.
ACCUMULATED SURPLUS. In statutes relative
to the taxation of corporations, this term refers
to the fund which the company has in excess of
its capital arid liabilities. Trenton Iron Co. v.
Yard, 42 N.J.Law, 357; People's F. Ins. Co. v.
Parker, 34 N.J.Law, 479, 35 N.J.Law, 575. See
Earnings.
ACCUMULATIONS. Increase by continuous or
repeated additions, or, if taken literally, means
either profit accruing on sale of principal assets,
or increase derived from their investment, or
both. In re Wells' Will, 300 N.Y.S. 1075, 1078,
165 Misc. 385.
Adding of interest or income of a fund to prin-
cipal pursuant to provisions of a will or deed,
preventing its being expended. In re Watson's
Will, 258 N.Y.S. 755, 144 Misc. 213.
When an executor or other trustee masses the rents,
dividends, and other income which he receives, treats it as
a capital, invests it, makes a new capital of the income
derived therefrom, invests that, and so on, he is said to
accumulate the fund, and the capital and accrued income
thus procured constitute accumulations. Hussey v. Sar-
gent, 116 Ky. 53, 75 S.W. 211, In re Rogers' Estate, 179
Pa. 609, 36 A. 340. See Perpetuity.
ACCUMULATIVE. That which accumulates, or is
heaped up; additional. Said of several things
heaped together, or of one thing added to an-
other.
ACCUMULATIVE JUDGMENT. Where a person
has already been convicted and sentenced, and a
second or additional judgment is passed against
him, the execution of which is postponed until the
completion of the first sentence, such second
judgment is said to be accumulative.
As to accumulative "Legacy," see that title.
ACCUMULATIVE LEGACY. A second, double
or additional legacy; a legacy given in addition
to another given by the same instrument, or by
another instrument.
ACCUMULATIVE SENTENCE. %A sentence, ad-
ditional to others, imposed on a defendant who
has been convicted upon an indictment containing
several counts, each of such counts charging a
distinct offense, or who is under conviction at the
same time for several distinct offenses; one of
such sentences to begin at the expiration of an-
other. Carter v. Mclaughry, 183 U.S. 365, 22 S.
Ct. 181, 46 L.Ed. 236; State v. Hamby, 126 N.C.
1066, 35 S.E. 614; Braudon v. Mackey, 122 Kan.
207, 251 P. 176, 177.
ACCUSARE NEMO SE DEBET, NISI CORAM
DEO. No one is bound to accuse himself, except
before God. See Hardres, 139.
ACCUSATION. A formal charge against a per-
son, to the effect that he is guilty of a punishable
offense, laid before a court or magistrate having
jurisdiction to inquire into the alleged crime.
Coplon v. State, 15 Ala.App. 331, 73 So. 225, 228.
See Accuse.
"Accusation" is equivalent of "information" at common
law which is mere allegation of prosecuting officer by
whom it is preferred. Sutton v. State, 54 Ga.App. 349, 188
S.E. 60, 62.
ACCUSATOR POST RATIONABILE TEMPUS
NON EST AUDIENDUS, NISI SE BENE DE
OMISSIONE EXCUSAVERIT. Moore, 817. An
accuser ought not to be heard after the expiration.
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ACOLYTE
of a reasonable time, unless he can account satis-
factorily for the delay.
ACCUSATORY PART. The "accusatory part" of
an indictment is that part where the offense is
named. Deaton v. Commonwealth, 220 Ky. 343,
295 S.W. 167, 168.
ACCUSE. To bring a formal charge against a
person, to the effecf that he is guilty of a crime
or punishable offense, before a court or magis-
trate having jurisdiction to inquire into the al-
leged crime. People v. Frey, 112 Mich. 251, 70 N
W. 548.
In its popular sense "accusation" applies to all deroga-
tory charges or imputations, whether or not they relate to
a punishable legal offense, and however made, whether
orally, by newspaper, or otherwise. People v. Braman, 30
Mich. 460. But in legal phraseology, it is limited to such
accusations as have taken shape in a prosecution. United
States v. Patterson, 150 U.S. 65, 14 S.Ct. 20, 37 L.Ed.
999.
ACCUSED. "Accused" is the generic name for
the defendant in a criminal case, and is more ap-
propriate than either "prisoner" or "defendant."
1 Car. & K. 131.
The person against whom an accusation is made; one
who is charged with a crime or misdemeanor. See People
v. Braman, 30 Mich. 468. The term cannot be said to
apply to a defendant in a civil action; Castle v. Houston,
19 Kan. 417, 37 Am.Rep. 127; and see Mosby v. Ins. Co., 31
Gratt. (Va.) 629.
ACCUSER. The person by whom an accusation
is made.
ACCUSTOMED. Habitual; often used; synony-
mous with usual; Farwell v. Smith, 16 N.J.Law,
133.
ACEPHALI. The levelers in the reign of Hen.
who acknowledged no head or superior. Leges H.
1; Cowell. Also certain ancient heretics, who ap-
peared about the beginning of the sixth century,
and asserted that there was but one substance in
Christ, and one nature. Wharton; Gibbon, Rom.
Emp. ch. 47.
ACEQUIA. A ditch, channel, or canal, through
which water, diverted from its natural course, is
conducted, for use in irrigation or other purposes;
public ditches. Comp.L.N.Mex. tit. 1, c. 1, § 6
(Comp.St.1929, §1 151-401).
ACHAT, also ACHATE, ACHATA, ACHET. In
French law. A purchase or bargain. Cowell.
It is used in some of our law-books, as well as achetor,
a purchaser, which in some ancient statutes means pur-
veyor. Stat. 36 Edw. III; Merlin, Rdpert.
ACHERSET. In old - English law. A measure of
grain, conjectured to have been the same with
our quarter, or eight bushels. Cowell.
ACHIEVE SUBJECT MATTER. The English
equivalent for patentability. Mesta Mach. Co. v.
Federal Machine & Welder Co., C.C.A.Pa., 110 F.
2d 479, 480.
ACKNOWLEDGE. To own, avow, or admit; to
confess; to recognize one's acts, and assume the
responsibility therefor.
ACKNOWLEDGMENT. To "acknowledge" is to
admit, affirm, declare, testify, avow, confess, or
own as genuine. Favello v. Bank of America
Nat. Trust & Savings Ass'n, 24 Cal.App.2d 342,
74 P.2d 1057, 1058.
Child
An avowal or admission that the child is one's
own; recognition of a parental relation, either by
a written agreement, verbal declarations or state-
ments, by the life, acts, and conduct of the parties,
or any other satisfactory evidence that the rela-
tion was recognized and admitted. In re Spencer,
Sur., 4 N.Y.S. 395; In re Hunt's Estate, 33 N.Y.S.
256, 86 Hun, 232.
Parents formally acknowledged child during ceremony
in which both marriage and baptism took place. Cormier
v. Cormier, 185 La. 968, 171 So. 93, 97, 98. Letter to regis-
trar of college where child was student. In re Horne's
Estate, 149 Fla. 710, 7 So.2d 13, 16.
The "public acknowledgment" of paternity, under Civ.
Code Cal. § 230, is the opposite of private acknowledg-
ment, and means the same kind of acknowledgment a
father would make of his legitimate child. In re Baird's
Estate, 193 Cal. 225, 223 P. 974, 994.
Generally
Implying obligation or incurring responsibility.
Weyerhaeuser Timber Co. v. Marshall, C.C.A.
Wash., 102 F.2d 78, 81.
Act of a person who avows or admits the truth of certain
facts which, if established, will entail a civil liability upon
him. Thus, the debtor's acknowledgment of the creditor's
demand or right of action will toll the statute of limita-
tions. Ft. Scott v. Hickman, 112 U.S. 150, 163, 5 Sup.Ct.
56, 28 L.Ed. 636; Letters, Leffek v. Luedeman, 95 Mont.
457, 27 P.2d 511, 91 A.L.R. 286; Lincoln-Alliance Bank &
Trust Co. v. Fisher, 286 N.Y.S. 722, 247 App.Div. 465; pay-
ments, Erskine v. Upham, 56 Cal.App.2d 235, 132 P.2d 219,
224, 225. McMahan v. Dorchester Fertilizer Co., 184 Md.
155, 40 A.2d 313, 314.
Testator's statement to attesting witness. Anthony v.
College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321, 324.
Instruments
Formal declaration before authorized official,
by person who executed instrument, that it is his
free act and deed. Jemison v. Howell, 161 So.
806, 230 Ala. 423, 99 A.L.R. 1511. The certificate
of the officer on such instrument that it has been
so acknowledged. Williford v. Davis, 106 Okl.
208, 232 P. 828, 831.
Money
A sum paid in some parts of England by copy-
hold tenants on the death of their lords, as a
recognition of their new lords, in like manner as
money is usually paid on the attornment of ten-
ants. Called a fine by Blackstone; 2 Bla.Com.
98.
Separate Acknowledgment
An acknowledgment of a deed or other instru-
ment, made by a married woman, on her exam-
ination by the officer separate and apart from her
husband. Hutchinson v. Stone, 79 Fla. 157, 84
So. 151, 154.
ACOLYTE. An inferior church servant, who,
next under the sub-deacon, follows and waits upon
the priests and deacons, and performs the offices
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ACQUAINTED
of lighting the candles, carrying the bread and
wine, and paying other servile attendance. Spel-
man; Cowell,
ACQUAINTED. Having personal knowledge of.
Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544. Ac-
quaintance expresses less than familiarity; In re
Carpenter's Estate, 94 Cal. 406, 29 P. 1101. It is
"familiar knowledge"; Wyllis v. Haun, 47 Iowa,
614; Chauvin v. Wagner, 18 Mo. 531.
"Acquaintance" expresses less than familiarity; famili-
arity less than intimacy. Acquaintance springs from oc-
casional intercourse, familiarity from daily intercourse,
intimacy from unreserved intercourse; acquaintance, hav-
ing some knowledge, familiarity, from long habit, inti-
macy, by close connection. Atkins Corporation v. Tourny,
6 Ca1.2d 206, 57 P.2d 480, 483. To be "personally
acquainted with," and to "know personally," are equiva-
lent terms; Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544.
When used with reference to a paper to which a certificate
or affidavit is attached, it indicates a substantial knowl-
edge of the subject-matter thereof. Bohan v. Casey, 5 Mo.
App. 101.
ACQUEREUR. In French and Canadian law.
One who acquires title, particularly to immovable
property, by purchase.
ACQUEST. An estate acquired newly, or by pur-
chase. 1 Reeve, Eng.Law, 56.
ACQUITS. In the civil law. Property which has
been acquired by purchase, gift, or otherwise than
by succession. Immovable property which has
been acquired otherwise than by succession. Merl.
Repert.
Profits or gains of property, as between husband and
wife. Civil Code La. art. 2402. The profits of all the
effects of which the husband has the administration and
enjoyment, either of right or in fact, of the produce of the
joint industry of both husband and wife, and of the
estates which they may acquire during the marriage,
either by donations made jointly to them both, or by pur-
chase, or in any other similar way, even though the pur-
chase be only in the name of one of the two, and not of
both. See Community; Conquéts.
ACQUIESCE. To give an implied consent to a
transaction, to the accrual of a right, or to any
act, by one's mere silence, or without express
assent or acknowledgment., Scott v. Jackson, 89
Cal. 258, 26 P. 898.
ACQUIESCENCE. Conduct recognizing the ex-
istence of a transaction, and intended, in some
extent at least, to carry the transaction, or permit
it to be carried, into effect; it is some act, not
deliberately intended to ratify a former transac-
tion known to be voidable, but recognizing the
transaction as existing, and intended, in some ex-
tent at least, to carry it into effect, and to obtain
or claim the benefits resulting from it, and thus
differs from "confirmation," which implies a de-
liberate act, intended to renew and ratify a trans-
action known to be voidable. De Boe v. Prentice
Packing & Storage Co., 172 Wash. 514, 20 P.2d
1107, 1110.
Passive compliance or satisfaction ; distinguished from
avowed consent on the one hand, and, on the other, from
opposition or open discontent. Paul v. Western Distribut-
ing Co., 142 Kan. 816, 52 P.2d 379, 387. Acquiescence from
which assent: may be reasonably inferred. Frank v. Wilson
& Co., 24 Del.Ch. 237, 9 A.2d 82, 86. Equivalent to assent
inferred from silence with knowledge or from encourage-
ment and presupposes knowledge and assent. Andrew v.
Rivers, 207 Iowa 343, 223 N.W. 102, 105. Imports tacit con-
sent, concurrence, acceptance or assent. Natural Soda
Products Co. v. City of Los Angeles, Cal.App., 132 P.2d
553, 563. A silent appearance of consent. Worcester,
Diet. Darnell v. Bidwell, 115 Me. 227, 98 A. 743, 745, 5 A.L.
R. 1320. Failure to make any objections. Scott v. Jackson,
89 Cal. 258, 26 P. 898. Submission to an act of which one
had knowledge. See Pence v. Langdon, 99 U.S. 578, 25
L.Ed. 420. It imports full knowledge. Rabe v. Dunlap,
51 N.J.Eq. 40, 25 A. 959. Knowledge without objection.
Indiana Harbor Belt R. Co. v. Jones, 220 Ind. 139, 41
N.E.2d 361, 363.
It is to be distinguished from avowed consent, on the
one hand, and from open discontent or opposition, on the
other.
It arises where a person who knows that he is entitled
to impeach a transaction or enforce a right neglects to do
so for such a length of time that, under the circumstances
of the case, the other party may fairly infer that he has
waived or abandoned his right. Norfolk & W. R. Co. v.
Perdue, 40 W.Va. 442, 21 S.E. 755.
Acquiescence and laches are cognate but not equivalent
terms. The former is a submission to, or resting satisfied
with, an existing state of things, while laches implies a
neglect to do that which the party ought to do for his own
benefit or protection. Hence laches may be evidence of
acquiescence. Laches Imports a merely passive assent,
while acquiescence implies active assent. In re Wilbur's
Estate, 334 Pa. 45, 5 A.2d 325, 331. "Acquiescence" relates
to inaction during performance of an act while "inches"
relates to delay after act is done. Bay Newfoundland Co.
v. Wilson & Co., 24 Del.Ch. 30, 4 A.2d 668, 671, 673. "Acqui-
escence" is synonymous with "abandonment" ; Sclawr v.
City of St. Paul, 132 Minn. 238, 156 N.W. 283, 284, and is
distinguished from "admission" ; Saunders v. Busch-
Everett Co., 138 La. 1049, 71 So. 153, 154; and from "ratifi-
cation" and "estoppel in pais" ; Marion Sa y . Bank v.
Leahy, 200 Iowa 220, 204 N.W. 456, 458; but see Murray v.
Smith, 152 N.Y:S. 102, 108, 166 App.Div. 528; differs from
"confirmation", in that confirmation implies a deliberate
act, intended to renew and ratify a transaction known to
be voidable, Bauer v. Dotterer, 202 Ark. 1055, 155 S.W.2d
54, 57. A form of "equitable estoppel", Schmitt v. Wright,
317 Ill.App. 384, 46 N.E.2d 184, 192.
See Admission; Confession; Ratification,
ACQUIESCENCE, ESTOPPEL BY. Acquiescence
is a species of estoppel. Bankers' Trust Co. v.
Rood, 211 Iowa, 289, 233 N.W. 794, 802, 73 A.L.R.
1421.
An estoppel arises where party aware of his rights sees
other party acting upon mistaken notion of his rights.
Minear v. Keith Furnace Co., Iowa, 239 N.W. 584, 587.
Injury accruing from one's acquiescence in another's action
to his prejudice creates "estoppel". Lebold v. Inland
Steel Co., C.C.A.I11., 125 F.2d 369, 375; Passive conduct on
the part of one who has knowledge of the facts may be
basis of estoppel. Winslow v. Burns, 47 N.M. 29, 132 P.2d
1048, 1050.
It must appear that party to be estopped was bound in
equity and good conscience to speak and that party claim-
ing estoppel relied upon acquiescence and was misled
thereby to change his position to his prejudice. Sherlock
v. Greaves, 106 Mont. 206, 76 P.2d 87, 91.
Acquiescence in a judgment in order to constitute an
estoppel must be unqualified. Messer v. Henlein, 72 N.D.
63, 4 N.W.2d 587, 589. One who stands by while his
property is sold is "estopped" from setting up title against
purchaser. Meadows v. Hampton Live Stock Commission
Co., 55 Cal.App.2d 634, 131 P.2d 591, 592, 593.
The doctrine is applicable only where there is some ele-
ment of turpitude or neglect. City of Lafayette v. Keen,
113 Ind. App. 552, 48 N.E.2d 63, 70.
ACQUIETANDIS PLEGIIS. A writ of justices,
formerly lying for the surety against a creditor
who refuses to acquit him after the debt has been
satisfied. Reg. of Writs 158; Cowell; Blount.
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ACQUITTAL
ACQUIRE. To gain by any means, usually by
one's own exertions; to get as one's own; to ob-
tain by search, endeavor, practice, or purchase;
receive or gain in whatever manner; come to
have. Clarno v. Gamble-Robinson Co., 190 Minn.
256, 251 N.W. 268, 269.
In law of contracts and of descents, to become owner of
property; to make property one's own. Crutchfield v.
Johnson & Latimer, 243 Ala. 73, 8 So.2d 412. To gain
ownership of. Commissioner of Insurance v. Broad Street
Mut. Casualty Ins. Co., 312 Mass. 261, 44 N.E.2d 683, 684.
Broad meaning including both purchase and construction;
acquisition being the act of getting or obtaining some-
thing which may be already in existence, or may be
brought into existence through means employed to acquire
it. Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133,
140. Sometimes used in the sense of "procure," Jolly v.
McCoy, 36 Cal.App. 479, 172 P. 618, 619. It does not nec-
essarily mean that title has passed, Godwin v. Tuttle, 70
Or. 424, 141 P. 1120, 1122. Includes taking by devise, U. S.
v. Merriam, 263 U.S. 179. 44 S.Ct. 69, 70 68 L.Ed. 240, 29
A. L. R. 1547.
ACQUIRED. To get, procure, secure, acquire.
Jones v. State, 126 Tex.Cr.R. 469, 72 S.W.2d 260,
263.
Coming to an intestate in any other way than by gift,
devise, or descent from a parent or the ancestor of a par-
ent. In re Miller's Will, 2 Lea (Tenn.) 54.
ACQUIRED RIGHTS. Those which a man does
not naturally enjoy, but which are owing to his
own procurement, as sovereignty, or the right of
commanding, or the right of property. Borden v.
State, 11 Ark. 519, 527, 44 Am.Dec. 217.
ACQUIRER TAX. German estate inheritance leg-
acy tax, not true inheritance or legacy tax, im-
posed upon recipient, and not affecting executors.
In re Gotthelf's Will, 273 N.Y.S. 247, 152 Misc. 309.
ACQUISITION. The act of becoming the owner
of certain property; the act by which one ac-
quires or procures the property in anything. State
ex rel. Fisher v. Sherman, 135 Ohio St. 458, 21 N.
E.2d 467, 470. Used also of the thing acquired.
Hartigan v. City of Los Angeles, 170 Cal. 313,
149 P. 590, 592. Taking with, or against, consent.
Scribner v. Wikstrom, 93 N.H. 17, 34 A.2d 658,
660. Especially a material possession obtained by
any means. Jones v. State, 126 Tex.Cr.R. 469, 72
S.W.2d 260, 263.
Original acquisition is that by which a man secures a
property in a thing which is not at the time he acquires
it, and in its then existing condition, the property of any
other individual. It may result from occupancy; 2 Kent,
289; accession; 2 Kent, 293; intellectual labor—namely,
for inventions, which are secured by patent rights; and
for the authorship of books, maps, and charts, which is
protected by copyrights; 1 Bouv.Inst. 508, n.
Derivative acquisitions are those which are procured
from others. Goods and chattels may change owners by
act of law in the cases of forfeiture, succession, marriage,
judgment, insolvency, and intestacy; or by act of the
parties, as by gift or sale.
An acquisition may result from the act of the party him-
self, or those who are in his power acting for him, as his
children while minors; Gale v. Parrot, 1 N.H. 28. See
Dig. 41. 1. 53; Inst. 2. 9. 3.
See Accession.
ACQUIT. To set free, release or discharge as
from an obligation, burden or accusation. Com-
monwealth v. Benson, 94 Pa.Super. 10, 15. To ab-
solve, one from an obligation or a liability; or to
legally certify the innocence of one charged with
crime. Dolloway v. Turrill, 26 Wend.N.Y. 383,
400.
ACQUIT A CAUTION. The certificate proving
receipt of security that goods shipped from one
French port to another shall not be sent to a
foreign country. Argles, Fr.Merc.Law, 543.
ACQUIT BACK. In mineral deed, vested in the
grantee the title to such mineral rights as grantor
had at time of execution of deed, where grantor
had received his title from grantee and the ex-
pression was intended to reconvey such title. Al-
len v. Boykin, 199 Miss. 417, 24 So.2d 748, 750.
ACQUITMENT. See Absolution,
ACQUITTAL.
Contracts
A release, absolution, or discharge from an ob-
ligation, liability, or engagement.
According to Lord Coke, there are three kinds of acquit-
tal, namely : by deed, when the party releases the obliga-
tion; by prescription; by tenure; Co. Litt. 100 a.
Crimes
The legal and formal certification of the inno-
cence of a person who has been charged with
crime; a deliverance or setting free a person
from a charge of guilt.
In a narrow sense, it is the absolution of a party accused
on a trial before a traverse jury. Thomas v. De Graf-
fenreid, 2 Nott & McC. (S. C.) 143. Properly speaking,
however, one is not acquitted by the jury but by the judg-
ment of the court. People v. Rogers, 170 N.Y.S. 86, 87,
102 Misc. 437. And he may be legally acquitted by a judg-
ment rendered otherwise than in pursuance of a verdict,
as where he is discharged by a magistrate because of the
insufficiency of the evidence, or the indictment is dismissed
by the court or a nol. pros. entered. State v. Hart, 90 N.J.
Law 261, 101 A. 278. But. compare State v. Smith, 170 N.C.
742; 87 S.E. 98, 99.
"Nol. pros." not equivalent of "acquittal." Bolton v.
State, 166 Miss. 290, 146 So. 453, 454. The unnecessary dis-
charge of the jury without the consent of the accused after
it has been sworn may constitute an acquittal. Riley v.
Commonwealth, 190 Ky. 204, 227 S. W. 146, 147. Acquittal
discharges from guilt, pardon only from punishment.
Younger v. State, 2 W.Va. 579, 98 Am.Dec. 791.
It may occur even though the question of guilt or inno-
cence has never been submitted to a jury, as where a
defendant, having been held under an indictment or infor-
mation, is discharged because not brought to trial within
the time provided by the Criminal Code. State v. Taylor,
130 Kan. 813, 288 P. 731, 732.
Acquittals in fact are those which take place when the
jury, upon trial, finds a verdict of not guilty.
Acquittals in law are those which take place by mere
operation of law; as where a man has been charged
merely as an assessory, and the principal has been acquit-
ted. 2 Co.Inst. 364. Ccmpare State v. Walton, 186 N.C.
485, 119 S.E. 886, 888.
See Jeopardy; Autrefois Acquit; Convict.
Feudal Law
The obligation on the part of a mesne lord to
protect his tenant from any claims, entries or
molestations by lords paramount arising out of
the services due to them by the mesne lord. See
Co.Litt. 100a.
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ACQUITTANCE
ACQUITTANCE. A written discharge, whereby
one is freed from an obligation to pay money or
perform a duty. It differs from a release in not
requiring to be under seal. Pothier, Oblig. n. 781.
See Milliken v. Brown, 1 Rawle (Pa.) 391.
This word, though perhaps not strictly speaking synon-
ymous with "receipt," includes it. A receipt is one form
of an acquittance; a discharge is another. A receipt in
full is an acquittance, and a receipt for a part of a demand
or obligation is an acquittance pro tanto. State v. Shel-
ters, 51 Vt. 104, 31 Am.Rep. 679.
ACQUITTED. Released; absolved; purged of an
accusation; judicially discharged from accusation;
released from debt, etc. Includes both civil and
criminal prosecutions. Dolloway v. Turrill, 26
Wend. (N.Y.) 383, 399. See Acquittal.
ACRE. A quantity of land containing 160 square
rods of land, in whatever shape. Serg. Land Laws
Pa. 185; Cro.Eliz. 476, 665; 6 Coke 67; Poph. 55;
Co.Litt. 5b.
Originally the word "acre" (acer, aker, or Sax, cecer)
was not used as a measure of land, or to signify any
determinate quantity of land, but to denote any open
ground, (latum quantumvis agrum,) wide champaign, or
field; which is still the meaning of the German acker,
derived probably from the same source, and is preserved
in the names of some places in England, as Castle Acre,
South Acre, etc. Burrill. Originally a strip in the fields
that was ploughed in the forenoon. Maitland, Domesday
and Beyond, 387.
ACRE FOOT. 325,850 gallons, or the amount of
water which will cover one acre one foot in depth.
Rowles v. Hadden, Tex.Civ.App., 210 S.W. 251,
258.
ACRE RIGHT. "The share of a citizen of a New
England town in the common lands. The value
of the acre right was a fixed quantity in each
town, but varied in different towns. A 10-acre lot
or right in a certain town was equivalent to 113
acres of upland and 12 acres of meadow, and a
certain exact proportion was maintained between
the acre right and salable lands." Messages, etc.,
of the Presidents, Richardson, X, 230.
ACREFIGHT, or ACRE. A camp or field fight;
a sort of duel, or judicial combat, anciently fought
by single combatants, English and Scotch, between
the frontiers of the two kingdoms with sword
and lance. Called "campfight," and the com-
batants "champions," from the open "acre" or
field that was the stage of trial. Cowell.
ACROMIAL PROCESS. A point in the region of
the shoulder about where the arm joins or fits into
the shoulder blade. Muskogee Electric Traction
Co. v. Mueller, 39 Okl. 63, 134 P. 51, 52.
ACROSS. From side to side. Transverse to the
length of. Hannibal & St. J. R. Co. v. Packet Co.,
8 S.Ct. 874, 125 U.S. 260, 31 L.Ed. 731; but see
Appeal of Bennett's Branch Imp. Co., 65 Pa. 242.
It may mean over, Brown v. Meady, 10 Me. 391,
25 Am.Dec. 248; or "upon and along," Mt. Vernon
Telephone Co. v. Franklin Farmers' Co-op. Tele-
phone Co., 113 Me. 46, 92 A. 934, 935, Ann.Cas.
1917B, 649; or "upon," Jefferson County v. Louis-
ville & I. R. Co., 160 S.W. 502, 504, 155 Ky. 810;
or "within," Quanah, A. & P. Ry. Co. v. Cooper,
Tex.Civ.App., 236 S.W. 811, 812. See Comstock v.
Van Deusen, 5 Pick. (Mass.) 163, where a grant of
a right of way across a lot of land was held not
to mean a right to enter at one side, go partly
across and come out at a place on the same side.
And compare Brooklyn Heights R. Co. v. Steers,
106 N.E. 919, 920, 213 N.Y. 76; but see Holley v.
State, 9 Ala.App. 33, 63 So. 738.
ACT, v. In Scotch practice. To do or perform
judicially; to enter of record. Surety "acted in
the Books of Adjournal." 1 Broun, 4.
ACT, n. Denotes affirmative; expression of will,
purpose; carries idea of performance; primarily
that which is done or doing; exercise of power,
or effect of which power exerted is cause; a per-
formance; a deed. Brown v. Standard Casket
Mfg.*Co., 234 Ala. 512, 175 So. 358, 364.
In its most general sense, this noun signifies something
done voluntarily by a person; the exercise of an individ-
ual's power ; an effect produced in the external world by
an exercise of the power of a person objectively, prompted
by intention, and proximately caused by a motion of the
will. Herman v. Pan American Life Ins. Co., 183 La. 1045,
165 So. 195, 200. In a more technical sense, it means some-
thing done voluntarily by a person, aria of such a nature
that certain legal consequences attach to it. Jefferson
Standard Life Ins. Co. v. Myers, Tex.Com.App., 284 S.W.
216, 218. Thus a grantor acknowledges the conveyance to
be his "act and deed," the terms being synonymous. It
May denote something done by an individual, as a private
citizen, or as an officer ; or by a body of men, as a legis-
lature, a council, or a court of justice; including not
merely physical acts, but also decrees, edicts, laws, judg-
ments, resolves, awards, and determinations. Some gen-
eral laws made by the Congress of the United States are
styled joint resolutions, and these have the same force and
effect as those styled acts. But see Decher v. Vaughan, 209
Mich. 565, 177 N.W. 388, 392. Carries idea of performance.
Edmonds v. Shirley, 22 Ala.App. 398, 116 So. 303.
An instrument in writing to verify facts. Web-
ster, Dict.
It is used in this sense of the published acts of assembly,
congress, etc. In a sense approaching this, it has been
held in trials for treason that letters and other written
documents were acts; 1 Fost.Cr.Cas. 198; 2 Stark. 116.
Act indicates the intention. 8 Co. 146b; Broom,
Max. 301.
Civil Law
An act is a writing which states in a legal form
that a thing has been said, done, or agreed. Merl.
Repert.
Acts under private signature are those which have been
'made by private individuals under their hands.
Private acts are those made by private persons as regis-
ters in relation to their receipts and expenditures, sched-
ules, acquittances, and the like.
Public acts are those which have a public authority, and
which have been made before public officers, are author-
ized by a public seal, have been made public by the author-
ity of a magistrate, or which have been extracted and been
properly authenticated from public records.
Legislation
A written law, formally ordained or passed by
the legislative power of a state, called in England
an "act of parliament," and in the United States
an "act of congress," or of the "legislature;" a
statute. People v. Tiphaine, 3 Parker, Cr.R. (N.
Y.) 241; United States v. Smith, 27 Fed.Cas. 1167.
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ACT OF GOD
The words bill and law are frequently used synony-
mously with act, People v. City of Buffalo, 161 N.Y.S. 706,
712, 175 App.Div. 218, but incorrectly; Sedgwick County
Com'rs v. Bailey, 13 Kan. 600; a bill being only the draft
or form of the act presented to the legislature but not
enacted; Southwark Bank v. Corn., 26 Pa. 446. "Act"
does not include ordinances or regulations made by local
authorities, or even statutes having only a local applica-
tion; People v. City of Buffalo, 157 N.Y.S. 938, 940, 93
Misc. 275; although sometimes used interchangeably with
"measure" and "law" ; Whittemore v. Terral, 140 Ark.
493, 215 S.W. 686, 687. Generally, the word refers to entire
statute enacted, rather than to a section. Board of Trus-
tees of Firemen's Relief and Pension Fund of City of
Muskogee v. Templeton, 184 Okl. 281, 86 P.2d 1000, 1002.
Acts are either public or private. Public acts (also
called general acts, or general statutes, or statutes at
large) are those which relate to the community generally,
or establish a universal rule for the governance of the
whole body politic. Private acts (formerly called special,
Co. Litt. 126a) are those which relate either to particular
persons (personal acts) or to particular places (local acts),
or which operate only upon specified individuals or their
private concerns. Unity v. Burrage, 103 U.S. 454, 26 L.Ed.
465. Public acts are those which concern the whole com-
munity and of which courts of law are bound to take
judicial notice. Sasser v. Martin, 101 Ga. 447, 29 S.E. 278.
A "special" or "private" act is one operating only on
particular persons and private concerns; a "local act" is
one applicable only to a particular part of the legislative
jurisdiction. Trumper v. School Dist. No. 55 of Mussel-
shell County, 55 Mont., 90, 173 P. 946, 947.
To denote an avowal of criminal acts, or the concession
of the truth of a criminal charge, the word "confession"
seems more appropriate.
Practice
Anything done by a court and reduced to writ-
ing; a decree, judgment, resolve, rule, order, or
other judicial proceeding. In Scotch law, the
orders and decrees of a court, and in French and
German law, all the records and documents in an
action, are called "acts."
Scotch Practice
An abbreviation of actor, (proctor or advocate,
especially for a plaintiff or pursuer,) used in
records. "Act. A. Alt. B." an abbreviation of
Actor, A. Alter, B.; that is, for the pursuer or
plaintiff, A., for the defender, B. 1 Broun, 336,
note.
ACT BOOK. In Scotch practice. The minute book
of a court. 1 Swin. 81.
ACT IN PAIS. An act done out of court, and not
a matter of record. A deed or an assurance
transacted between two or more private persons
in the country, that is, according to the old com-
mon law, upon the very spot to be transferred, is
matter in pais. 2 Bl.Comm. 294.
ACT OF ATTAINDER. A legislative act, attaint-
ing a person. See Attainder.
ACT OF BANKRUPTCY. Any act which renders
a person liable to be proceeded against as a bank-
rupt, or for which he may be adjudged bankrupt.
These acts are usually defined and classified in statutes
on the subject. Duncan v. Landis, C.C.A.Pa., 106 Fed. 839,
45 C.C.A. 666; In re Chapman, D.C., 99 Fed. 395. Such as:
insolvency or suffering or permitting a creditor to obtain
a preference, Von Segerlund v. Dysart, C.C.A.Cal., 137 F.2d
755, 758, 761; appointment of a receiver, United States v.
Emory, 62 S.Ct. 317, 319, 314 U.S. 423, 86 L.Ed. 315; hin-
dering, delaying or defrauding creditors, In re Thompson,
D.C.La., 28 F.Supp. 707, 710; failure to discharge a lien,
In re Flushing Queensboro Laundry, C.C.A.N.Y., 90 F.2d
601. Permitting creditor to obtain any levy, attachment,
judgment, or other lien, In re Day, D.C.Md., 22 F.Supp.
946, 949; assignment for benefit of creditors, In re Roy, D.
C.N.H., 46 F.Supp. 952, 954; or a written admission of one's
inability to pay his debts, In re Turner, D.C.Ky., 51 F.
Supp. 740, 743.
ACT OF CURATORY. In Scotch law. The act ex-
tracted by the clerk, upon any one's acceptance
of being curator. Forb.Inst. pt. 1, b. 1, c. 2, tit. 2.
2 Kames, Eq. 291. Corresponding with the order
for the appointment of a guardian, in English and
American practice.
ACT OF ELIZABETH. See Act of Supremacy.
ACT OF GOD. An act occasioned exclusively by
violence of nature without the interference of any
human agency. It means a natural necessity pro-
ceeding from physical causes alone without the
intervention of man. It is an act, event, happen-
ing, or occurrence, a disaster and effect due to
natural causes and inevitable accident, or disaster;
a natural and inevitable necessity which implies
entire exclusion of all human agency which op-
erates without interference or aid from man and
which results from natural causes and is in no
sense attributable to human agency. It is an acci-
dent which could not have been occasioned by
human agency but proceeded from physical causes
alone. Short v. Kerr, 104 Ind.App. 118, 9 N.E.2d
114, 118.
In the civil law, vis major. Any misadventure or cas-
ualty is said to be caused by the "act of God" when it
happens by the direct, immediate, and exclusive operation
of the forces of nature, uncontrolled or uninfluenced by
the power of man and without human intervention, and
is of such a character that it could not have been pre-
vented or escaped from by any amount of foresight or
prudence, or by any reasonable degree of care or dilli-
gence, or by the aid of any appliances which the situation
of the party might reasonably require him to use. Inevit-
able accident, or casualty; any accident produced by any
physical cause which is irresistible, such as lightning,
tempests, perils of the seas, an inundation, or earthquake;
and also the sudden illness or death of persons. People v.
Tubbs, 37 N.Y. 586; Central of Georgia Ry. Co. v. Hall,
124 Ga. 322, 52 S.E. 679, 4 L.R.A.,N.S., 898, 110 Am.St.Rep.
170, 4 Ann.Cas. 128. Story, Bailm. §§ 25, 511; 2 Bl.Comm.
122. Inevitable accident or casualty. Noel Bros. v. Texas
& P. Ry. Co., 16 La.App. 622, 133 So. 830, 832; not pre-
ventable by human care, skill, or foresight, but resulting
from natural causes, The Empress of France, D.C.N.Y., 49
F.2d 291. Misfortunes and accidents arising from inevita-
ble necessity which human prudence could not foresee or
prevent. Pleasure Beach Park Co. v. Bridgeport Dredge &
Dock Co., 116 Conn. 496, 165 A. 691, 692. Limited, v.
Lehigh Valley R. Co., D.C.N.Y., 254 F. 351, 353, a landside
in the Panama Canal, Gans S. S. Line v. Wilhelmsen, C.C.
A.N.Y., 275 F. 254, 261, and changes in the styles of wear-
ing apparel, Rosenblatt v. Winstanley, Mo.App., 186 S.W.
542, 543, are not "acts of God" ; otherwise, however, as to
a strike, accompanied with violence and intimidation, see
Southern Cotton Oil Co. v. Louisville & N. R. Co., 15
Ga.App. 751, 84 S.E. 198, 199.
The term is sometimes defined as equivalent to inevita-
ble accident; Neal v. Saunderson, 2 Sm. & M. (Miss.) 572,
41 Am.Dec. 609; Central of Georgia Ry. Co. v. Council
Bros., 36 Ga.App. 573, 137 S.E. 569, 570 (see, however, Can-
non v. Hunt, 113 Ga. 509, 38 S.E. 983; Harmony Grove
Telephone Co. v. Potts, 24 Ga.App. 178, 100 S.E. 236, but
incorrectly, as there is a distinction between the two;
Alaska Coast Co. v. Alaska Barge Co., 79 Wash. 216, 140 P.
334, 335. Bolton v. Burnett, 5 Blackf. (Ind.) 222.
See Inevitable Accident; Perils of the Sea.
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ACT OF GOVERNMENT
ACT OF GOVERNMENT. The usual name of
Cromwell's Constitution vesting the supreme
power in a Protector and two houses of Parlia-
ment, passed March 25, 1657.
ACT OF GRACE. In Scotch law. A term ap-
plied to the act of 1696, c. 32, by which it was pro-
vided that where a person imprisoned for a civil
debt is so poor that he cannot aliment [maintain]
himself, and will make oath to that effect, it shall
be in the power of the magistrates to cause the
creditor by whom he is incarcerated to provide
an aliment for him, or consent to his liberation;
which, if the creditor delay to do for 10 days, the
magistrate is authorized to set the debtor at
liberty. Bell. The term is often used to designate
a general act of parliament, originating with the
crown, such as has often been passed at the com-
mencement of a new reign, or the coming of age
or marriage of a sovereign, or at the close of a
period of civil troubles, declaring pardon or am-
nesty to numerous offenders. Abbott.
ACT OF HONOR. When a bill has been protested,
and a third person wishes to take it up, or accept
it, for honor of one or more of the parties, the
notary draws up an instrument, . evidencing the
transaction, called by this name.
ACT OF INDEMNITY. A statute by which those
who have committed illegal acts which subject
them to penalties are protected from the conse-
quences of such acts.
ACT OF INSOLVENCY. Within the meaning of
the national currency act, an act which shows a
bank to be insolvent, such as nonpayment of its
circulating notes, bills of exchange, or certificates
of deposit; failure to make good the impairment
of capital, or to keep good its surplus or reserve;
in fact, any act which shows that the bank is
unable to meet its liabilities as they mature, or to
perform those duties which the law imposes for
the purpose of sustaining its credit. Hayden v.
Chemical Nat. Bank, C.C.A.N.Y., 84 Fed. 874, 28
C.C.A. 548; Kullman & Co. v. Woolley, C.C.A.
Miss., 83 F.2d 129, 132; Garvin v. Chadwick Real-
ty Corporation, 212 Ind. 499, 9 N.E.2d 268, 271.
ACT OF LAW. The operation of fixed legal rules
upon given facts or occurrences, producing conse-
quences independent of the design or will of the
parties concerned; as distinguished from "act of
parties." Also an act performed by judicial au-
thority which prevents or precludes a party from
fulfilling a contract or other engagement. Met-
calf v. State, 57 Okl. 64, 156 P. 305, 306, L.R.A.
1916E, 595.
ACT OF PARLIAMENT. A statute, law, or edict,
made by the British sovereign, with the advice
and consent of the lords spiritual and temporal,
and the commons, in parliament assembled. Acts
of parliament form the leges scriptce,  e., the
written laws of the kingdom.
ACT OF PROVIDENCE. An accident against
which ordinary skill and foresight could not
guard. McCoy v. Dan/ey, 20 Pa. 91, 57 Am.Dec.
680. Equivalent to "act of God," see supra.
ACT OF SALE. In Louisiana law. An official
record of a sale of property, made by a notary
who writes down the agreement of the parties as
stated by them, and which is then signed by the
parties and attested by witnesses. Hodge v.
Palms, Mich., 117 Fed. 396, 54 C.C.A. 570.
ACT OF SETTLEMENT. The statute (12 & 13
Wm. III, c. 2) limiting the crown to the Princess
Sophia of Hanover, and to the heirs of her body
being Protestants. 1 Bla.Com. 128; 2 Steph.Com.
290. One clause of it made the tenure of judges'
office for life or good behavior independent of the
crown.
ACT OF STATE. An act done by the sovereign
power of a country, or by its delegate, within the
limits of the power vested in him. An act of
state cannot be questioned or made the subject of
legal proceedings in a court of law.
ACT OF SUPREMACY. An act of 26 Hen. VIII.
c. 1, and also 1 Eliz. c. 1, which recognized the
king as the only supreme head on earth of the
Church of England having full power to correct
all errors, heresies, abuses, offenses, contempts
and enormities. The oath, taken under the act,
denies to the Pope any other authority than that
of the Bishop of Rome.
ACT OF UNIFORMITY. In English law. The
statute of 13 & 14 Car. II. c. 4, enacting that the
book of common prayer, as then recently revised,
should be used in every parish church and other
place of public worship, and otherwise ordaining
a uniformity in religious services, etc. 3 Steph.
Comm. 104.
ACT OF UNION. The statutes uniting England
and Wales, 27 Hen. VIII, c. 26, confirmed by 34 &
35 Hen. VIII, c. 26; England and Scotland, 5 Anne.
c. 8; Great Britain and Ireland, 39 & 40 Geo. III,
c. 67. 1 Bl.Comm. 97.
The act uniting the three lower counties (now
Delaware) to the province of Pennsylvania, passed
at Upland, Dec. 7, 1682, is so called.
ACT ON PETITION. A form of summary pro-
ceeding formerly in use in the high court of
admiralty, in England, in which the parties stated
their respective cases briefly, and supported their
statements by affidavit. 2 Dod.Adm. 174, 184; 1
Hagg.Adm. 1, note.
ACTA DIURNA. Lat. In the Roman law. Daily
acts or chronicles; the public registers or journals
of the daily proceedings of the senate, assemblies
of the people, courts of justice, etc. Supposed to
have resembled a modern newspaper. Brande.
Thus: I do not find the thing published in the
acta diurna (daily records of affairs) ; Tacitus,
Ann. 3, 3; Ainsworth, Lex.; Smith, Lex.
ACTA EXTERIORA INDICANT INTERIORA
SECRETA. 8 Coke, 146b. External acts indicate
undisclosed thoughts.
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ACTIO COMMUNI
ACTA IN UNO JUDICIO NON PROBANT IN
ALIO NISI INTER EASDEM PERSONAS. Things
done in one action cannot be taken as evidence in
another, unless it be between the same parties.
Tray.Lat.Max. U.
ACTA PUBLICA. Lat. Things of general knowl-
edge and concern; matters transacted before cer-
tain public officers. Calvinus, Lex.
ACTE. In French law, denotes a document, or
formal, solemn writing, embodying a legal attesta-
tion that something has been done, corresponding
to one sense or use of the English word "act."
Actes de naissance are the certificates of birth, and must
contain the day, hour, and place of birth, together with
the sex and intended christian name of the child, and the
names of the parents and of the witnesses. Actes de
mariage are the marriage certificates, and contain names,
professions, ages, and places of birth and domicile of the
two persons marrying, and of their parents ; also the con-
sent of these latter, and the mutual agreements of the
intended husband and wife to take each other for better
and worse, together with the usual attestations. Actes de
décês are the certificates of death, which are required to
be drawn up before any one may be buried. Les actes de
l'etat civil are public documents. Brown.
ACTE AUTHENTIQUE. A deed executed with
certain prescribed formalities, in the presence of
a notary, mayor, greffier, huissier, or other func-
tionary qualified to act in the place in which it is
drawn up. Argles, Fr.Merc.Law, 50.
ACTE DE FRANCISATION. The certificate of
registration of a ship, by virtue of which its
French nationality is established.
ACTE D'HERITIER. Act of inheritance. Any ac-
tion or fact on the part of an heir which mani-
fests his intention to accept the succession; the
acceptance may be express or tacit. Duverger.
ACTE EXTRAJUDICIAIRE. A document served
by a huissier, at the demand of one party upon
another party, without legal proceedings.
ACTING. The word "acting" means doing duty
for another; officiating; holding a temporary
rank or position or performing services tempo-
rarily; as, an acting captain, manager, president.
Pellecchia v. Mattia, 121 N.J.L. 21, 1 A.2d 28. Per-
forming; operating. See Meyer v. Johnston, 64
Ala. 603, 665.
An acting trustee is one who takes upon himself to per-
form some or all of the trusts mentioned in a will. Sharp
v. Sharp, 2 Barn. & Ald. 415.
ACTING OFFICER. The phrase "acting officer"
is used to designate, not an appointed incumbent,
but merely a locum tenens, who is performing the
duties of an office to which he himself does not
claim title. State ex rel. Gossett v. O'Grady, 137
Neb. 824, 291 N.W. 497, 501; State Bank of Wil-
liams v. Gish, 167 Iowa, 526, 149 N.W. 600, 601.
"Acting Supervising Architect." Fraser v. United States,
16 Ct.C1. 514. An acting executor is one who assumes to
act as executor for a decedent, not being the executor
legally appointed or the executor in fact. Morse v. Allen,
99 Mich. 303, 58 N.W. 327.
ACTIO. Lat. In the civil law. An action or
suit; a right or cause of action. It should be
noted that this term means both the proceeding
to enforce a right in a court and the right itself
which is sought to be enforced.
The first sense here given is the older one. Justinian,
following Celsus, gives the well-known definition : Actio
nihil aliud est quam jus persequendi in judicio quod sibi
debetur, which may be thus rendered : An action is simply
the right to enforce one's demands in a court of law. See
Pollock, Expansion of C. L. 92.
ACTIO AD EXHIBENDUM. An action for the
purpose of compelling a defendant to exhibit a
thing or title in his power. It was preparatory to
another action, which was always a real action
in the sense of the Roman law; that is, for the
recovery of a thing, whether it was movable or
immovable. Merl.Quest.tome i, 84.
ACTIO JESTIMATORIA; ACTIO QUANTI MI-
NOR'S. Two names of an action which lay in
behalf of a buyer to reduce the contract price
proportionately to the defects of the object, not
to cancel the sale; the judex had power, however,
to cancel the sale. Hunter, Rom.Law, 332, 505.
ACTIO ARBITRARIA. Action depending on the
discretion of the judge. In this, unless defendant
would make amends to plaintiff as dictated by the
judge in his discretion, he was liable to be con-
demned. Hunter, Rom.Law, 825, 987.
ACTIO BONE FIDEI. (Lat.: An action of good
faith.) A class of actions in which the judge
might at the trial ex officio, take into account any
equitable circumstances that were presented to
him affecting either of the parties to the action.
1 Spence, Eq.Jur. 210, 218.
ACTIO CALUMNI1E. An action to restrain de-
fendant from prosecuting a groundless proceeding
or trumped-up charge against plaintiff. Hunter,
Rom.Law, 859, 1020. An action for malicious
prosecution. So.Afr.Leg.Dict.
ACTIO CIVILIS. In the common law. A civil ac-
tion, as distinguished from a criminal action.
Bracton divides personal actions into cri?rtinalia et
civilia, according as they grow out of crimes or contracts.
Bract. fol. 101b. Actiones civiles are those forms of reme-
dies which were established under the rigid system of the
civil law, the jus civilis. See Actio Honoraria.
ACTIO COMMODATI. Included several actions
appropriate to enforce the obligations of a bor-
rower or a lender. Hunter, Rom.Law, 305.
ACTIO COMMODATI CONTRARIA. An action
by the borrower against the lender, to compel the
execution of the contract. Poth. Pre't a Usage, n.
75.
ACTIO COMMODATI DIRECTA. An action by a
lender against a borrower, the principal object of
which is to obtain a restitution of the thing lent.
Poth. Prét a Usage, nn. 65, 68.
ACTIO COMMUNI DIVIDUNDO. An action to
procure a judicial division of joint property. Hun-
ter, Rom.Law, 194. It was analogous in its object
to proceedings for partition in modern law.
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ACTIO CONDICTIO
ACTIO CONDICTIO INDEBITATI. An action by
which the plaintiff recovers the amount of a sum
of money or other thing he paid by mistake. Poth.
Promutuum, n. 140; Merl. Repert.
ACTIO CONFESSORIA. An affirmative petitory
action for the recognition and enforcement of a
servitude. So called because based on plaintiff's
affirmative allegation of a right in defendant's
land. Distinguished from an actio negatoria,
which was brought to repel a claim of defendant
to a servitude in plaintiff's land. Mackeld. Rom.
Law, § 324.
ACTIO CONTRARIO. Counter action or cross
action.
ACTIO CRIMINALIS. Criminal action.
ACTIO DAMNI INJURIA. The name of a gen-
eral class of actions for damages, including many
species of suits for losses caused by wrongful or
negligent acts. The term is about equivalent to
our "action for damages."
ACTIO DE DOLO MALO. An action of fraud;
an action which lay for a defrauded person against
the defrauder and his heirs, who had been en-
riched by the fraud, to obtain the restitution of
the thing of which he had been fraudulently de-
prived, with all its accessions (cum omni causa;)
or, where this was not practicable, for compensa-
tion in damages. Mackeld.Rom.Law, § 227.
ACTIO DE PECULIO. An action concerning or
against the peculium, or separate property of a
party.
ACTIO DE PECUNIA CONSTITUTA. An action
for money engaged to be paid ; an action which
lay against any person who had engaged to pay
money for himself, or for another without any
formal stipulation. Inst. 4, 6, 9; Dig. 13, 5; Cod.
4, 18.
ACTIO DE TIGNO JUNCTO. An action by the
the owner of material built by another into his
building.
If so used in good faith double their value could be
recovered; if in bad faith, the owner could recover suita-
ble damage for the wrong, and recover the property when
the building came down. So. Afr. Leg. Diet.
ACTIO DEPOSITI CONTRARIA. An action which
the depositary has against the depositor, to com-
pel him to fulfil his engagement towards him.
Poth. Du Depot, n. 69.
ACTIO DEPOSIT! DIRECTA. An action which is
brought by the depositor against the depositary,
in order to get back the thing deposited. Poth.
Du Depot, n. 60.
ACTIO DIRECTA. A direct action; an action
founded on strict law, and conducted according to
fixed forms; an action founded on certain legal
obligations which from their origin were accurate-
ly defined and recognized as actionable. See Actio
Utilis.
ACTIO EMPTI. An action employed in behalf of
a buyer to compel a seller to perform his obliga-
tions or pay compensation; also to enforce any
special agreements by him, embodied in a con-
tract of sale. Hunter, Rom.Law, 332, 505.
ACTIO EX CONDUCTO. An action which the
bailor of a thing for hire may bring against the
bailee, in order to compel him to redeliver the
thing hired.
ACTIO EX CONTRACTU. In the civil and com-
mon law. An action of contract; an action aris-
ing out of, or founded on, contract. 3 Bl.Comm.
117.
ACTIO EX DELICTO. In the civil and common
law. An action of tort; an action arising out of
fault, misconduct, or malfeasance. Inst. 4, 6, 15;
3 Bl.Comm. 117. Ex male ficio is the more com-
mon expression of the civil law; which is adopted
by Bracton. Inst. 4, 6, 1; Bract. fols. 102, 103.
ACTIO EX LOCATO. An action upon letting; an
action which the person who let a thing for hire
to another might have against the hirer. Dig. 19,
2; Cod. 4, 65.
ACTIO EX STIPULATU. An action brought to
enforce a stipulation.
ACTIO EXERCITORIA. An action against the
exercitor or employer of a vessel.
ACTIO FAMILIZE ERCISCUNDIE. An action for
the partition of an inheritance. Inst. 4, 6, 20; Id.
4, 17, 4. Called, by Bracton and Fleta, a mixed ac-
tion, and classed among actions arising ex quasi
contractu. Brac. fol. 10013; Bract. fols. 443 b, 444;
Fleta, lib. 2, c. 60, § 1.
ACTIO FURTI. An action of theft; an action
founded upon theft. Inst. 4, 1, 13-17; Bract. fol.
444. This could be brought only for the penalty
attached to the offense, and not to recover the
thing stolen, for which other actions were pro-
vided. Inst. 4, 1, 19. An appeal of larceny. The
old process by which a thief can be pursued and
the goods vindicated. 2 Holdsw.Hist.Eng.L. 202.
ACTIO HONORARIA. An honorary, or pr aetorian
action. Dig. 44, 7, 25, 35. Actiones honorarice are
those forms of remedies which were gradually
introduced by the pr aetors and diles, by virtue
of their equitable powers, in order to prevent the
failure of justice which too often resulted from
the employment of the actiones civiles. These
were found so beneficial in practice that they
eventually supplanted the old remedies, of which
in the time of Justinian hardly a trace remained.
Mackeldey, Civ.L. § 194; 5 Savigny, System.
ACTIO IN FACTUM. In action adapted to the
particular case, having an analogy to some actio
in jus, the latter being founded on some subsisting
acknowledged law. 1 Spence, Eq.Jur. 212. The
origin of these actions is similar to that of actions
on the case at common law.
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ACTIO PCENALIS
ACTIO IN PERSONAM.
Admiralty Law
An action directed against the particular person
who is to be charged with the liability. It is dis-
tinguished from an actio in rem, which is a suit
directed against a specific thing (as a vessel) ir-
respective of the ownership of it, to enforce a
claim or lien upon it, or to obtain, out of the
thing or out of the proceeds of its sale, satisfac-
tion for an injury alleged by the claimant.
Civil Law
An action against the person, founded on a per-
sonal liability; an action seeking redress for the
violation of a jus in personam or right available
against a particular individual.
ACTIO IN REM. In the civil and common law.
An action for a thing; an action for the recovery
of a thing possessed by another. Inst. 4, 6, 1. An
action for the enforcement of a right (or for
redress for its invasion) which was originally
available against all the world, and not in any
special sense against the individual sued, until he
violated it. See In Rem.
ACTIO JUDICATI. An action instituted, after
four months had elapsed after the rendition of
judgment, in which the judge issued his warrant
to seize, first, the movables, which were sold
within eight days afterwards; and then the im-
movables, which were delivered in pledge to the
creditors, or put under the care of a curator, and
if, at the end of two months, the debt was not
paid, the land was sold. Dig. 42, 1; Cod. 8, 34.
According to some authorities, if the defendant then
utterly denied the rendition of the former judgment, the
plaintiff was driven to a new action, conducted like any
other action, which was called actio judicati, and which
had for its object the determination of the question
whether such a judgment had been rendered. The exact
meaning of the term is by no means clear. See Savigny,
Syst. 305, 411; 3 Ortolan, Just. § 2033.
ACTIO LEGIS AQUILINE. An action under the
Aquilian law; an action to recover damages for
maliciously or injuriously killing or wounding the
slave or beast of another, or injuring in any way
a thing belonging to another. Otherwise called
damni injurice actio.
ACTIO MANDATI. Included actions to enforce
contracts of mandate or obligations arising out
of them. Hunter, Rom.Law, 316.
ACTIO MIXTA. A mixed action; an action
brought for the recovery of a thing, or compensa-
tion for damages, and also for the payment of a
penalty; partaking of the nature both of an actio
in rem and in personam. Inst. 4, 6, 16, 18, 19, 20;
Mackeld.Rom.Law, § 209.
ACTIO NEGATORIA (or NEGATIVA). An ac-
tion brought to repel a claim of the defendant to a
servitude in the plaintiff's land. Mackeld.Rom.
Law, § 324. See Actio Confessoria.
ACTIO NEGOTIORUM GESTORUM. Included ac-
tions between principal and agent and other par-
ties to an engagement, whereby one person under-
took the transaction of business for another.
ACTIO NON. In pleading. The Latin name of
that part of a special plea which follows next
after the statement of appearance and defense,
and declares that the plaintiff "ought not to have
or maintain his aforesaid action thereof against"
the defendant (in Latin, actionem non habere
debet). 1 Chit.Plead. 531; 2 id. 421; Stephens,
Plead. 394.
ACTIO NON ACCREVIT INFRA SEX ANNOS.
The name of the plea of the statute of limitations,
when the defendant alleges that the plaintiff's ac-
tion has not accrued within six years.
ACTIO NON DATUR NON DAMNIFICATO. An
action is not given to one who is not injured.
Jenk.Cent. 69.
ACTIO NON FACIT REUM, NISI MENS SIT
REA. An act does not make one guilty, unless
the intention be bad. Lofft, 37.
ACTIO NON ULTERIUS. In English pleading.
A name given to the distinctive clause in the plea
to the further maintenance of the action, intro-
duced in place of the plea puis darrein continu-
ance; the averment being that the plaintiff ought
not further (ulterius) to have or maintain his ac-
tion. Steph.Pl. 64, 65, 401.
ACTIO NOXALIS. A noxal action; an action
which lay against a master for a crime commit-
ted or injury done by his slave; and in which the
master had the alternative either to pay for the
damage done or to deliver up the slave to the com-
plaining party. Inst. 4, 8, pr.; Heinecc.Elem. lib.
4, tit. 8. So called from noxa, the offense or in-
jury committed. Inst. 4, 8, 1.
ACTIO PERPETUA. An action without limita-
tion period.
ACTIO PERSONALIS. In the civil and common
law. A personal action.
The ordinary term for this kind of action in the civil
law is actio in personam, (q. v.,) the word personalis
being of only occasional occurrence. Inst. 4, 6, 8, in tit.;
Id. 4, 11, pr. 1. Bracton, however, uses it freely, and
hence the personal action of the common law. Bract. fols.
102a, 159b. See Action.
ACTIO PERSONALIS MORITUR CUM PER-
SONA. A personal right of action dies with the
person. Noy, Max. 14.
The maxim was originally applied to almost every form
of ac t ion, whether arising out of contract or tort, but the
common law was modified by the Statute of 4 Edward the
III.  Momand v. Twentieth-Century Fox Film Corporation,
D.C.Okl., 37 F.Supp. 649, 652.
ACTIO PIGNORATITIA. An action of pledge;
an action founded on the contract of pledge
(pignus). Dig. 13, 7; Cod. 4, 24.
ACTIO PCENALIS. Called also actio ex delicto.
An action in which a penalty was recovered of
the delinquent.
Actiones pcenales and actiones mixtce comprehended
cases of injuries, for which the civil law permitted redress
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by private action, but which modern civilization univer-
sally regards as crimes; that is, offenses against society
at large, and punished by proceedings in the name of the
state alone. Thus, theft, receiving stolen goods, robbery,
malicious mischief, and the murder or negligent homicide
of a slave (in which case an injury to property was
involved), gave rise to private actions for damages against
the delinquent. Inst. 4, 1. De obligationibus quce ex
delicto nascuntur; id. 2. De bonis vi raptis; id. 3. De
lege Aquilia. And see Mackeldey, Civ.L. § 196; 5 Savigny,
System, § 210.
Actio pcenalis in haredem non datur, nisi forte
ex damno locupletior hares factus sit. A penal
action is not given against an heir, unless, in-
deed, such heir is benefited by the wrong.
ACTIO PRIEJUDICIALIS. A preliminary or pre-
paratory action. An action instituted for the de-
termination of some preliminary matter on which
other litigated matters depend, or for the deter-
mination of some point or question arising in an-
other or principal action; and so called from its
being determined before, (prius, or prce judicari.)
ACTIO PRIESCRIPTIS VERBIS. A form of ac-
tion which derived its force from continued usage
or the responsa prudentium, and was founded on
the unwritten law. 1 Spence, Eq.Jur. 212. The
distinction between this action and an actio in
factum is said to be, that the latter was founded
not on usage or the unwritten law, but by analogy
to or on the equity of some subsisting law; 1
Spence, Eq.Jur. 212.
ACTIO PRIETORIA. A pr ae torian action; one
introduced by the pra tor, as distinguished from
the more ancient actio civilis, (q. v.) Inst. 4, 6, 3;
Mackeld.Rom.Law, § 207.
ACTIO PRO SOCIO. An action of partnership.
An action brought by one partner against his
associates to compel them to carry out the terms
of the partnership agreement. Story, Partn., Ben-
nett ed. § 352; Pothier, Contr. de Societe, n. 34.
ACTIO PUBLICIANA. An action which lay for
one who had lost a thing of which he had bona
fide obtained possession, before he had gained a
property in it, in order to have it restored, under
color that he had obtained a property in it by
prescription. Inst. 4, 6, 4; Heinecc. Elem. lib. 4,
tit. 6, § 1131; Halifax, Anal. b. 3, c. 1, n. 9. It was
an honorary action, and derived its name from the
prae tor Publicius, by whose edict it was first given.
Inst. 4, 6, 4.
ACTIO QUIELIBET IT SUA VIA. Every action
proceeds in its own way. Jenk.Cent. 77.
ACTIO QUOD JUSSU. An action given against
a master, founded on some business done by his
slave, acting under his order, ( jussu.) Inst. 4, 7,
1; Dig. 15, 4; Cod. 4, 26.
ACTIO QUOD METUS CAUSA. An action grant-
ed to one who had been compelled by unlawful
force, or fear (metus causa) that was not ground-
less, (metus probabilis or Justus,) to deliver, sell,
or promise a thing to another. Bract. fol. 103b;
Mackeld.Rom.Law, § 226.
ACTIO REALIS. A real action. The proper term
in the civil law was rei vindicatio. Inst. 4, 6, 3.
ACTIO REDHIBITORIA. An action to cancel a
sale in consequence of defects in the thing sold.
It was prosecuted to compel complete restitution to the
seller of the thing sold, with its produce and accessories,
and to give the buyer .back the price, with interest, as an
equivalent for the restitution of the produce. Hunter,
Rom.Law, 332. See Redhibitory Action.
ACTIO RERUM AMOTARUM. An action for
things removed; an action which, in cases of
divorce, lay for a husband against a wife, to re-
cover things carried away by the latter, in con-
templation of such divorce. Dig. 25, 2; Id. 25, 2;
25, 30. It also lay for the wife against the hus-
band in such cases. Dig. 25, 2, 7, 11; Cod. 5, 21.
ACTIO RESCISSORIA. An action for restoring
plaintiff to a right or title which he has lost by
prescription, in a case where the equities are such
that he should be relieved from the operation of
the prescription. Mackeld.Rom.Law, § 226.
An action to rescind a prescriptive title by one
who was entitled to exemption from the prescrip-
tion law, as a minor, etc.
ACTIO SERVIANA. An action which lay for the
lessor of a farm, or rural estate, to recover the
goods of the lessee or farmer, which were pledged
or bound for the rent. Inst. 4, 6, 7.
ACTIO STRICTI JURIS. An action of strict
right. The class of civil law personal actions,
which were adjudged only by the strict law, and
in which the judge was limited to the precise
language of the formula, and had no discretion-
ary power to regard the bona fides of the trans-
action. See Inst. 4, 6, 28; Gaius, iii. 137; Mackeld.
Rom.Law, § 210; 1 Spence, Eq.Jur. 218.
ACTIO TEMPORALIS. An action which must
be brought within a limited time. See Limitation.
ACTIO TUTELIE. Action founded on the duties
or obligations arising on the relation analogous to
that of guardian and ward.
ACTIO UTILIS. A beneficial action or equitable
action. An action founded on equity instead of
strict law, and available for those who had eq-
uitable rights or the beneficial ownership of prop-
erty.
Actions are divided into actiones directce or utiles. The
former are founded on certain legal obligations which from
their origin were accurately defined and recognized as ac-
tionable. The latter were formed analogically in imitation
of the former. They were permitted in legal obligations
for which the actiones directce were not originally intend-
ed, but which resembled the legal obligations which formed
the basis of the direct action. Mackeld.Rom.Law, § 207.
ACTIO VENDITI. An action employed in behalf
of a seller, to compel a buyer to pay the price,
or perform any special obligations embodied in
a contract of sale. Hunter, Rom.Law, 332.
ACTIO VI BONORUM RAPTORUM. An action
for goods taken by force; a species of mixed ac-
tion, which lay for a party whose goods or mov-
ables (bona) had been taken from him by force,
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(vi,) to recover the things so taken, together with
a penalty of triple the value. Inst. 4, 2; Inst. 4,
6, 19. Bracton describes it as lying de rebus mo-
bilibus vi ablatis sive robbatis, (for movable
things taken away by force, or robbed.) Brae.
fol. 103b.
ACTIO VULGARIS. A legal action; a common
action. Sometimes used for actio directa. Mack-
eld.Rom.Law, § 207.
ACTION. Conduct; behavior; something done;
the condition of acting; an act or series of acts.
French Commercial Law
Stock in a company, or shares in a corporation.
Practice
The legal and formal demand of one's right
from another person or party made and insisted
on in a court of justice. Smith-Webster Co. v.
John, C.C.A.Pa., 259 F. 549, 551; Dinsmore v.
Barker, 61 Utah, 332, 212 P. 1109; Shaw v. Lone
Star Building & Loan Ass'n, Tex.Civ.App., 40 S.W.
2d 968, 969. Pursuit of right in court, without
regard to form of procedure. Ginzberg v. Wy-
man, 272 Mass. 499, 172 N.E. 614, 615. Form of
suit given by law for recovery of that which is
one's due. Co.Litt. 284b, 285a; Peterson v. A.
Guthrie & Co., D.C.Wash., 3 F.Supp. 136, 138.
Judicial means of enforcing a right. Code Ga.
1882, § 3151 (Civ.Code 1926, § 5507). Judicial rem-
edy for the enforcement or protection of a right.
White v. White, 98 Ind.App. 587, 186 N.E. 349, 351.
An ordinary proceeding in a court of justice by
which one party prosecutes another for the en-
forcement or protection of a right, the redress or
prevention of a wrong, or the punishment of a
public offense. Code Civ.Proc.S.D.1903, § 12
(Comp.Laws 1929, § 2091) ; Missionary Soc. v. Ely,
47 N.E. 537, 56 Ohio St. 405.
Cross-action, White v. St. Louis Post Offices Corporation,
348 Mo. 961, 156 S.W.2d 695, 698, and counterclaim, Webster
v. Freeman, 27 Cal.App.2d 5, 80 P.2d 497, 499, are actions
but not set off, Kress v. Central Trust Co. of Rochester,
283 N.Y.S. 467, 471, 246 App. Div. 76.
It includes all the formal proceedings in a court of
justice attendant upon the demand of a right made by one
person of another in such court, including an adjudication
upon the right and its enforcement or denial by the court.
Proceedings held actions : Disbarment, In re Wilcox,
90 Kan. 646, 135 P. 995; probating will, Simpson v. Simp-
son, 273 Ill. 90, 112 N.E. 276, 277; will contest, Byrne v.
Byrne, Mo.Sup., 181 S.W. 391, 392; workmen's compensa-
tion, Pigeon v. Employers' Liability Assur. Corporation,
216 Mass. 51, 102 N.E. 932, 935, Ann.Cas.1915A, 737; crimi-
nal prosecution, Mason v. U. S., C.C.A.I11., 1 F.2d 279, 280;
mandamus, People v. Lueders, 287 Ill. 107, 122 N.E. 374,
375; naturalization, In re Fordiani, 98 Conn. 435, 120 A.
338, 341.
Proceedings held not actions : attachment, State v. Su-
perior Court of Spokane County, 110 Wash. 49, 187 P. 708;
arbitration, Temple v. Riverland Co., Tex.Civ.App., 228 S.
W. 605, 609; criminal prosecution, U. S. v. Cleveland, D.C.
Ala., 281 F. 249, 253; Wynn v. Commonwealth, 198 Ky.
644, 249 S.W. 783, 784; writ of citation, McClelland v.
State, 101 Ohio St. 42, 127 N.E. 409, 410; certiorari, Camp-
bell, v. Common Council of City of Watertown, 46 S.D. 574,
195 N.W. 442; mandamus, De Leyer v. Britt, 212 N.Y. 565,
106 N.E. 57; child's support, Head v. Fuller, 122 Me. 15,
118 A. 714, 715; drainage, Richardson County v. Drainage
Black's Law Dictionary Revised 4th Ed.-4
Dist. No. 2 of Richardson County, 96 Neb. 169, 147 N.W.
205, 206; condemnation, State v. Superior Court for Ferry
County, 145 Wash. 576, 261 P. 110, 111.
Scotch Law
A suit or judicial proceeding.
Suit Distinguished
Strictly applied, action does not usually refer
to chancery practice. City of Beckley v. Craig-
head, 125 W.Va. 484, 24 S.E.2d 908, 911. But
terms "action" and "suit" are now nearly, if not
entirely, synonymous. (3 Bl.Comm. 3, 116, et pas-
sim.) Elmo v. James, Tex.Civ.App., 282 S.W. 835,
839; Coleman v. Los Angeles County, 180 Cal.
714, 182 P. 440. Or, if there be a distinction, it
is that the term "action" is generally confined to
proceedings in a court of law, while "suit" is
equally applied to prosecutions at law or in equity.
McBride v. University Club, 112 Ohio St. 69, 146
N.E. 804, 805; Guarantee Trust & Banking Co. v.
Dickson, 148 Ga. 311, 96 S.E. 561, 562; Niantic
Mills Co. v. Riverside & 0. Mills, 19 R.I. 34, 31 A.
432; Ulshafer v. Stewart, 71 Pa. 170. Formerly,
however, an action was considered as terminat-
ing with the giving of judgment, the execution
forming no part of it. (Litt. § 504; Co.Litt. 289a.)
A suit included the execution. (Litt. § 291a.) So,
an action is termed by Lord Coke, "the right of
a suit." (2 Inst. 40.) Burrill.
Types of Actions
Actions are called, in common-law practice, ex
contractu when they are founded on a contract;
ex delicto when they arise out of a tort. Nelson
v. Great Northern R. Co., 28 Mont. 297, 72 Pac.
642; Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190.
If a cause of action arises from a breach of promise, the
action is "ex contractu," and, if it arises from breach of
duty growing out of contract, it is "ex delicto." Tort or
trespass is none the less such because it incidentally in-
volves breach of contract. Berning v. Colodny & Colodny,
103 Cal.App. 188, 284 P. 496, 498.
As to class or representative actions. See Class
Or Representative Action.
As to the distinction between a revocatory ac-
tion and an action in simulation, see Chapman v.
Irwin, 157 La. 920, 103 So. 263, 265.
Civil actions are such as lie in behalf of persons to en-
force their rights or obtain redress of wrongs in their rela-
tion to individuals.
Common law actions are such as will lie, on the par-
ticular facts, at common law, without the aid of a stat-
ute.
Criminal actions are such as are instituted by the sov-
ereign power, for the purpose of punishing or preventing
offenses against the public.
Local action. See Local Action.
Mixed actions partake of twofold nature of real and
personal actions, having for their object the demand and
restitution of real property and also personal damages
for a wrong sustained. 3 Bl.Comm. 118; Hall v. Decker,
48 Me. 257. Mixed actions are those which are brought
for the specific recovery of lands, like real actions, but
comprise, joined with this claim, one for damages in re-
spect of such property; such as the action of waste, where,
in addition to the recovery of the place wasted, the de-
mandant claims damages; the writ of entry, in which, by
statute, a demand of mesne profits may be joined; and
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ACTION
dower, in which a claim for detention may be included. 48
Me. 255. In the civil law, an action in which some spe-
cific thing was demanded, and also some personal obliga-
tion claimed to be performed; or, in other words, an ac-
tion which proceeded both in rem and in personam. Inst.
4, 6, 20.
Penal actions are such as are brougnt, either by the state
or by an individual under permission of a statute, to en-
force a penalty imposed by law for the commission of a
prohibited act.
Personal action. In civil law, an action in personam. It
seeks to enforce an obligation imposed on the defendant
by his contract or delict; that is, it is the contention that
he is bound to transfer some dominion or to perform some
service or to repair some loss. Gaius, bk. 4, § 2. In com-
mon law. An action brought for the recovery of some debt
or for damages for some personal injury, in contradistinc-
tion to the old real actions, which related to real property
only. See 3 Bl.Comm. 117. Boyd v. Cronan, 71 Me. 286;
Doe v. Waterloo Min. Co., C.C.Cal., 43 F. 219; Osborn v.
Fall River, 140 Mass. 508, 5 N.E. 483. An action which can
be brought only by the person himself who is injured, and
not by his representatives.
Popular actions, in English usage, are those actions
which are given upon the breach of a penal statute, and
which any man that will may sue on account of the king
and himself, as the statute allows and the case requires.
Because the action is not given to one especially, but gen-
erally to any that will prosecute, it is called "action pop-
ular ;" and, from the words used in the process, (qui tam
pro domino rege sequitur quam pro se ipso, who sues as
well for the king as for himself,) it is called a qui tam
action. Tomlins.
Real actions. At common law, one brought for the spe-
cific recovery of lands, tenements, or hereditaments.
Steph.Pl. 3; Crocker v. Black, 16 Mass. 448; Hall v. Deck-
er, 48 Me. 256; Doe v. Waterloo Min. Co., C.C.Cal., 43 F.
220; Mathews v. Sniggs, 75 Okl. 108, 182 P. 703, 708. They
are droitural when they are based upon the right of prop-
erty, and possessory when based upon the right of posses-
sion. They are either writs of right ; writs of entry upon
disseisin (which lie in the per, the per et cui, or the post),
intrusion, or alienation; writs ancestral possessory, as
mort d'ancestor, aiel, besaiel, cossinage, or nuper obiit.
Com.Dig. Actions (D 2). The former class was divided
into droitural, founded upon demandant's own seisin, and
ancestral droitural upon the demandant's claim in respect
of a mere right descended to him from an ancestor. Pos-
sessory actions were divided in the same way—as to the
demandant's own seisin and as to that of his ancestor.
Among the civilians, real actions, otherwise called "vindi-
cations," were those in which a man demanded something
that was his own. They were founded on doiminion, or
jus in re. The real actions of the Roman law were not,
like the real actions of the common law, confined to real
estate, but they included personal, as well as real, proper-
ty. Wharton.
Statutory actions are such as can only be based upon the
particular statutes creating them.
Transitory actions are those founded upon a cause of ac-
tion not necessarily referring to or arising in any particu-
lar locality. Their characteristic feature is that the right
of action follows the person of the defentlant. Brown v.
Brown, 155 Tenn. ;,30, 296 S.W. 356, 358. Actions are
"transitory" when the transactions relied on might have
taken place anywhere, and are "local" when they could
not occur except in some particular place ; the distinction
being in the nature of the subject of the injury, and not
in the means used or the place at which the cause of action
arises. Brady v. Brady, 161 N.C. 324, 77 S.E. 235, 236, 44
L.R.A.,N.S., 279; Taylor v. Sommers Bros. Match Co., 35
Idaho, 30, 204 P. 472, 474, 42 A.L.R. 189. The test of
whether an action is local or transitory is whether the in-
jury is done to a subject-matter which, in its nature, could
not arise beyond the locality of its situation, in contra-
distinction to the subject causing the injury. Mattix v.
Swepston; 127 Tenn. 693, 155 S.W. 928, 929. Actions triable
where defendant resides are termed "transitory" and those
triable where the subject-matter is situated are termed "lo-
cal." State v. District Court of Swift County, 164 Minn.
433, 205 N.W. 284, 285.
See Cause of Action.
ACTION EX CONTRACTU. An action for breach
of promise set forth in a contract, express or
implied. Bristol v. Sun Vacuum Stores, 181
Misc. 522, 42 N.Y.S.2d 501, 504; McCullough v.
The American Workmen, 200 S.C. 84, 20 S.E.2d 640,
644.
ACTION EX DELICTO. An action arising from
a breach of duty growing out of contract. Bern-
ing v. Colodny & Colodny, 103 Cal.App. 188, 284 P.
496, 498; Federal Life Ins. Co. v. Maxam, 70
Ind.App. 266, 117 N.E. 801, 806.
ACTION FOR ACCOUNTING. Action in equity
based on inadequacy of legal remedy and particu-
larly applicable to mutual and complicated ac-
counts and where confidential or fiduciary rela-
tionship exists. Dahlberg v. Fisse, 328 Mo. 213,
40 S.W.2d 606, 609. To adjust mutual accounts
and to strike a balance. Cline v. McKee, 186 Okl.
366, 98 P.2d 25, 27.
ACTION FOR MONEY HAD AND RECEIVED.
One in assumpsit based upon promise to repay im-
plied by law, and in respect of limitation is a
stated or liquidated account. Mutual Building &
Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817,
818.
Where one person has received money or its equivalent
under such circumstances that in equity and good con-
science he ought not to retain it and in justice it belongs
to another. Interstate Life & Accident Co. v. Cook, 19
Tenn.App. 290, 86 S.W.2d 887, 891.
ACTION FOR POINDING. An action by a credi-
tor to obtain a sequestration of the rents of land
and the goods of his debtor for the satisfaction of
the debt, or to enforce a distress.
ACTION IN PERSONAM, IN REM. See In Per-
sonam, In Rem.
ACTION OF ABSTRACTED MULTURES. An ac-
tion for multures or tolls against those who are
thirled to a mill, i. e., bound to grind their corn
at a certain mill, and fail to do so. Bell.
ACTION OF ADHERENCE. See Adherence.
ACTION OF A WRIT. A phrase used when a de-
fendant pleads some matter by which he shows
that the plaintiff had no cause to have the writ
sued upon, although it may be that he is entitled
to another writ or action for the same matter.
Cowell.
ACTION OF ASSIZE. A real action which prov-
es the title of the demandant, merely by showing
his ancestor's possession. Sherman v. Dilley, 3
Nev. 21, 26, citing 5 Chit.B1. 184.
ACTION OF ASSUMPSIT. See Assumpsit.
ACTION OF BOOK DEBT. A form of action for
the recovery of claims, such as are usually evi-
denced by a book-account; this action is princi-
pally used in Vermont and Connecticut. Newton
v. Higgins, 2 Vt. 366.
ACTION ON CONTRACT. An action brought to
enforce rights whereof the contract is the evi-
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Bence, and usually the sufficient evidence. Ko-
kusai Kisen Kabushiki Kaisha v. Argos Mercan-
tile Corporation, C.C.A.N.Y., 280 F. 700, 701.
ACTION ON THE CASE. A species of personal
action of very extensive application, otherwise
called "trespass on the case," or simply "case,"
from the circumstance of the plaintiff's whole
case or cause of complaint being set forth at
length in the original writ by which formerly it
was always commenced. 3 Bl.Comm. 122. Wal-
lace v. Wilmington & N. R. Co., 8 Houst. (Del.)
529, 18 A. 818.
In its most comprehensive signification it includes as-
sumpsit as well as an action in form ex delicto; at present
when it is mentioned it is usually understood to mean an
action in form ex delicto. It is founded on the common law
or upon acts of Parliament, and lies generally to recover
damages for torts not committed with force, actual or im-
plied; or having been occasioned by force where the mat-
ter affected was not tangible, or the injury was not immed-
iate but consequential; or where the interest in the proper-
ty was only in reversion, in all of which cases trespass is
not sustainable; 1 Chit.P1. 132. In the progress of judicial
contestation it was discovered that there was a mass of tor-
tious wrongs unattended by direct and immediate force, or
where the force, though direct, was not expended on an ex-
isting right of present enjoyment, for which the then
known forms of action furnished no redress. The action
on the case was instituted to meet this want. And wrongs
which will maintain an action on the case are frequently
committed in the nonobservance of duties, which are but
the implication of contract obligation, duties of requisite
skill, fidelity, diligence, and a proper regard for the rights
of others, implied in every obligation to serve another. If
the cause of action arises from a breach of promise, the ac-
tion is "ex contractu" ; but if the cause of action arises
from a breach of duty growing out of the contract, it is
in form ex delicto and case. When there is a contract, ei-
ther express or implied, from which a common-law duty
results, an action on the case lies for the breach of that
duty. Bently-Beale, Inc. v. Wesson Oil & Snowdrift Sales
Co., 231 Ala. 562, 165 So. 830, 832. See Assumpsit.
ACTION QUASI IN REM. An action brought
against persons which only seeks to subject cer-
tain property of those persons to discharge of
claims asserted and judgment therein is only con-
clusive between parties and their privies. Tobin
v. McClellan, 225 Ind. 335, 75 N.E.2d 149, 151.
ACTION REDHIBITORY, See Redhibitory Ac-
tion.
ACTION TO QUIET TITLE. One in which plain-
tiff asserts his own estate and declares generally
that defendant claims some estate in the land,
without defining it, and avers that the claim is
without foundation, and calls on defendant to set
forth the nature of his claim, so that it may be de-
termined by decree.
It differs from a "suit to remove a cloud," in that plain-
tiff therein declares on his own title, and also avers the
source and nature of defendant's claim, points out its de-
fect, and prays that it may be declared void as a cloud on
plaintiff's estate. Manning v. Gregoire, 97 Or. 394, 192 P.
406, 407. The apparent difference between an action to re-
store a lost instrument and one to quiet title is that, in the
former, ordinarily both the titles of plaintiff and defendant
are deraigned in the complaint, which must disclose that,
notwithstanding an apparent interest of defendant the
property belongs to plaintiff ; and in the latter action the
complaint need only allege the ultimate fact of plaintiff's
interest and defendant's outstanding claim. Nicholson v.
Nicholson, 67 Mont. 517, 216 P. 328, 329, 31 A.L.R. 548.
See, also, Slette v. Review Pub. Co., 71 Mont. 518, 230 P.
580, 581. It embraces every sort of a claim whereby the
plaintiff might be deprived of his property or his title
clouded or its value depreciated, or whereby the plaintiff
might be incommoded or damnified by assertion of an out-
standing title already held or to grow out of the adverse
pretension. Bank of American Nat. Trust & Savings Ass'n
v. Town of Atherton, 60 Cal.App.2d 268, 140 P.2d 678, 680.
ACTIONABLE. That for which an action will
lie, furnishing legal ground for an action.
ACTIONABLE FRAUD. Deception practiced in
order to induce another to part with property or
surrender some legal right; a false representa-
tion made with an intention to deceive; may be
committed by stating what is known to be false
or by professing knowledge of the truth of a state-
ment which is false, but in either case, the essen-
tial ingredient is a falsehood uttered with intent to
deceive. Sawyer v. Prickett, 19 Wall. 146, 22 L.
Ed. 105.
To constitute "actionable fraud," it must appear that de-
fendant made a material representation; that it was false ;
that when he made it he knew it was false,- or made it
recklessly without any knowledge of its truth and as a
positive assertion ; that he made it with intention that it
should be acted on by plaintiff ; that plaintiff acted in re-
liance on it; and that plaintiff thereby suffered injury.
Blair v. McCool, 136 Or. 139, 295 P. 950, 952. Essential ele-
ments are representation, falsity, scienter, .deception, and
injury. Cobb v. Cobb, 211 N.C. 146, 189 S.E. 479, 482.
ACTIONABLE MISREPRESENTATION. A false
statement respecting a fact material to the con-
tract and which is influential in procuring it.
Wise v. Fuller, 29 N.J.Eq. 257.
ACTIONABLE NEGLIGENCE. The breach or
nonperformance of a legal duty, through neglect
or carelessness, resulting in damage or injury to
another. Fidelity & Casualty Co. v. Cutts, 95 Me.
162, 49 Atl. 673.
It is failure of duty, omission of something which ought
to have been done, or doing of something which ought not
to have been done, or which reasonable man, guided by
considerations which ordinarily regulate conduct of hu-
man affairs, would or would not do. Goff v. Emde, 32
Ohio App. 216, 167 N.E. 699, 700. Essential elements are
failure to exercise due care, injury, or damage, and proxi-
mate cause. Rountree v. Fountain, 203 N.C. 381, 166 S.E.
329, 330.
ACTIONABLE NUISANCE. Anything wrong-
fully done or permitted which injures or annoys
another in the enjoyment of his legal rights. Mil-
ler v. City of Dayton, 70 Ohio App. 173, 41 N.E.2d
728, 730.
Anything injurious to health, or indecent, or offensive to
the senses, or an obstruction to the free use of property so
as to interfere with the comfortable enjoyment of life or
property. Cooper v. Overton, 102 Tenn. 211, 52 S.W. 183,
45 L.R.A. 591.
ACTIONABLE TORT. To constitute an "action-
able tort," there must be a legal duty, imposed by
statute or otherwise, owing by defendant to the
one injured, and in the absence of such duty dam-
age caused is "injury without wrong" or "damnum
absque injuria." Coleman v. California Yearly
Meeting of Friends Church, 27 Cal.App.2d 579,
81 P.2d 469, 470.
ACTIONABLE WORDS. In law of libel and
slander, such words as naturally imply damage.
Dahm v. O'Connell, 161 N.Y.S. 909, 911, 96 Misc.
582.
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ACTIONABLE
Per Quod
Words actionable only on allegation and proof
of special damage. Knapp v. Post Printing &
Publishing Co., 111 Colo. 492, 144 P.2d 981, 984.
Words not actionable per se upon their face, but only
in consequence of extrinsic facts showing circumstances
under which they were said or the damages resulting to
slandered party therefrom. Smith v. Mustain, 210 Ky. 445,
276 S.W. 154, 155, 44 A.L.R. 386. Not injurious on their
face in their usual and natural signification, but only so in
consequence of extrinsic facts and requiring innuendo.
Piplack v. Mueller, 97 Fla. 440, 121 So. 459.
Per Se
Words in themselves libelous. Knapp v. Post
Printing & Publishing Co., 111 Colo. 492, 144 P.2d
981, 984.
Words which law presumes must actually, proximately,
and necessarily damage defendant for which general dam-
ages are recoverable and whose injurious character is a
fact of common notoriety, established by the general con-
sent of men, necessarily importing damage. Ellsworth v.
Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W.
400, 407. Words themselves opprobrious ; susceptible only
of opprobrious meaning. Fite v. Oklahoma Pub. Co., 146
Okl. 150, 293 P. 1073, 1075. Importing a charge of some
punishable crime or some offensive disease, imputing moral
turpitude, or tending to injure a party in his trade or
business. Barnes v. Trundy, 31 Me. 321; Lemons v. Wells,
78 Ky. 117; Mayrant v. Richardson, 1 Nott & McC. 347, 9
Am.Dec. 707. Tending to injure one's reputation, thereby
exposing him to public hatred, contempt or ridicule, tend-
ing to degrade or lower him. Hodges v. Cunningham,
160 Miss. 576, 135 So. 215, 217. Such words are actionable
without allegation of special damages. Kluender v. Se-
mann, 203 Iowa 68, 212 N.W. 326, 327. See also Libelous
per se.
ACTIONABLE WRONG. Committed when a re-
sponsible person has neglected to use a reasonable
degree of care for protection of another person
from such injury as under existing circumstances
should reasonably have been foreseen as a proxi-
mate consequence of that negligence. Chadwick
v. Bush, 174 Miss. 75, 163 So. 823, 824.
ACTIONARE. L. Lat. (From actio, an action.)
In old records. To bring an action; to prosecute,
or sue. Thorn's Chron.; Whishaw.
ACTIONARY. A foreign commercial term for
the proprietor of an action or share of a public
company's stock; a stockholder.
ACTIONES LEGIS. In the Roman law, legal or
lawful action; actions of or at law,) legitimoe ac-
tiones.) Dig. 1, 2, 2, 6.
ACTIONES NOMINATIE. (Lat. named actions).
In the English chancery, writs for which there
were precedents. The statute of Westminster, 2,
c. 24, gave chancery authority to form new writs
in consimili case; hence the action on the case.
ACTIONS. (Fr.) Shares of corporate stock.
Compare Actionary.
ACTIONS ORDINARY. In Scotch law, all actions
which are not rescissory. Ersk.Inst. 4, 1, 18.
ACTIONS RESCISSORY. In Scotch law, these
are either (1) actions of proper improbation for
declaring a writing false or forged; (2) actions
of reduction-improbation for the production of a
writing in order to have it set aside or its effect
ascertained under the certification that the writ-
ing if not produced shall be declared false or
forged; and (3) actions of simple reduction, for
declaring a writing called for null until produced.
Ersk.Princ. 4, 1, 5.
ACTIONUM GENERA MAXIME SUNT SER-
VANDA. The kinds of actions are especially to
be preserved. Lofft 460.
ACTIVE. That is in action; that demands ac-
tion; actually subsisting; the opposite of pas-
sive. An active debt is one which draws interest.
An active trust is a confidence connected with a
duty. An active use is a present legal estate.
ACTIVE CONCEALMENT. This implies a pur-
pose or design accomplished by words or acts,
while passive concealment consists in mere silence
where there is a duty to speak. Vendt v. Duenke,
Mo.App., 210 S.W.2d 692, 699.
Concealment becomes a fraud where it is effected by mis-
leading and' deceptive talk, acts, or conduct, where it is
accompanied by misrepresentations, or where, in addition
to a party's silence, there is any statement, word, or act
on his part which tends affirmatively to a suppression of
the truth. Such conduct is designated active concealment.
Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co.,
C.C.A.I11., 112 F.2d 302, 309.
ACTIVE NEGLIGENCE. A term of extensive
meaning obviously embracing many occurrences
that would fall short of willful wrongdoing, or of
crass negligence, for example, all inadvertent acts
causing injury to others, resulting from failure
to exercise ordinary care, likewise all acts the
effects of which are misjudged or unforeseen,
through want of proper attention, or reflection,
and hence the term covers the acts of willful
wrongdoing and also those which are not of that
character. Cohen v. Noel, Tenn.App., 104 S.W.2d
1001, 1005.
ACTIVE SERVICE. "Active service" in army
does not necessarily mean actual service, but
means service performed at direction of superior
officer or officers while receiving emoluments to
which soldier is entitled. United States v. Wood-
worth, D.C.Mass., 36 F.Supp. 645, 646.
ACTIVE TRUST. See Trust.
ACTIVITY. A recreational "activity" is a physi-
cal or gymnastic exercise, an agile performance,
such as dancing. McClure v. Board of Education
of City of Visalia, 38 Cal.App. 500, 176 P. 711, 712.
ACTON BURNEL, STATUTE OF. In English
law, a statute, otherwise called Statutum Merca-
torum or de Mercatoribus the statute of the mer-
chants, made at a parliament held at the castle or
village of Acton Burnel in Shropshire, in the 11th
year of the reign of Edward I. 2 Reeves, Eng.
Law, 158-162. It was a statute for the collection
of debts, the earliest of its class, being enacted in
1283. A further statute for the same object, and
known as De Mercatoribus, was enacted 13 Edw.
I. (c. 3.). See Statute Merchant.
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ACTUAL
ACTOR.
Old European Law
A patron, proctor, advocate, or pleader; one
who acted for another in legal matters; one
who represented a party and managed his cause.
An attorney, bailiff, or steward; one who man-
aged or acted for another. The Scotch "doer" is
the literal translation.
Roman Law
One who acted for another; one who attended
to another's business; a manager or agent. A
slave who attended to, transacted, or superintend-
ed his master's business or affairs, received and
paid out moneys, and kept accounts. Burrill.
The word has a variety of closely-related meanings,
very nearly corresponding with manager. Thus, actor
domince, manager of his master's farm; actor ecclesice,
manager of church property; actores provinciarum, tax-
gatherers, treasurers, and managers of the public debt.
Actor ecclesice.—An advocate for a church; one who
protects the temporal interests of a church. Actor villce
was the steward or head-bailiff of a town or village. Cow-
ell.
Plaintiff or complainant. In a civil or private action the
plaintiff was often called by the Romans "petitor;" in a
public action (causa publica) he was called "accusator."
The defendant was called "revs," both in private and pub-
lic causes; this term, however, according to Cicero, (De
Orat. 43,) might signify either party, as indeed we
might conclude from the word itself. In a private action,
the defendant was often called "adversarius," but either
party might be called so.
Also, the term is used of a party who, for the time
baing, sustains the burden of proof, or has the initiative in
the suit.
Actor qui contra regulam quid adduxit, non est
audiendus. A plaintiff (or pleader) is not to be
heard who has advanced anything against author-
ity, (or against the rule.)
Actor sequitur forum rei. According as rei is
intended as the genitive of res, a thing, or reus,
a defendant, this phrase means: The plaintiff fol-
lows the forum of the property in suit, or the fo-
rum of the defendant's residence. Branch, Max. 4.
Home, Law Tr. 232; Story, Confl.L. § 325 k; 2
Kent 462.
ACTORE NON PROBANTE REUS ABSOLVI-
TUR. When the plaintiff does not prove his case
the defendant is acquitted (or absolved). Hob.
103.
ACTORI INCUMBIT ONUS PROBANDI. The
burden of proof rests on the plaintiff, (or on the
party who advances a proposition affirmatively.)
Hob. 103.
ACTORNAY. In old Scotch law, an attorney.
Skene.
ACTRIX. Lat. A female actor; a female plain-
tiff. Calvinus, Lex.
ACTS OF COURT. Legal memoranda made in
the admiralty courts in England, in the nature of
pleas.
ACTS OF POSSESSION. To constitute adverse
possession, acts of possession must be such as,
if seen by the party whose claim is sought to be
divested, would apprise him that the party doing
the acts claimed the ownership of the property.
Crosby v. City of Greenville, 183 Mich. 452, 150
N.W. 246, 248.
ACTS OF SEDERUNT. In Scotch law, ordinances
for regulating the forms of proceeding, before the
court of session, in the administration of justice,
made by the judges, who have the power by virtue
of a Scotch act of parliament passed in 1540.
Ersk. Prin. § 14.
ACTUAL. Real; substantial; existing presently
in act, having a valid objective existence as op-
posed to that which is merely theoretical or possi-
ble. Ciaccio v. Hartman, 170 La. 949, 129 So. 540.
Opposed to potential, possible, virtual, conceiv-
able, theoretical, hypothetical, or nominal. Amer-
ican Ins. Co. of Newark, N. J., v. Seminole County
Board of Education, 51 Ga.App. 808, 181 S.E. 783,
786. Something real, in opposition to construc-
tive or speculative; something existing in act.
Astor v. Merritt, 4 S.Ct. 413, 111 U.S. 202, 28 L.
Ed. 401. Existing in act, fact, or reality. Guar-
isco v. Massachusetts Bonding & Insurance Co.,
4 N.Y.S.2d 788, 792, 167 Misc. 875.
It is used as a legal term in contradistinction to virtual
or constructive as of possession or occupation; Cleveland
v. Crawford, 7 Hun (N.Y.) 616; or an actual settler,
which implies actual residence; ' McIntyre v. Sherwood, 82
Cal. 139, 22 Pac. 937. An actual seizure means nothing
more than seizure, since there was no fiction of construc-
tive seizure before the act; L.R. 6 Exch. 203.
Actually is opposed to seemingly, pretendedly, or feign-
edly, as actually engaged in farming means really, truly,
in fact; In re Strawbridge & Mays, 39 Ala. 367; Ayer &
Lord Tie Co. v. Commonwealth, 208 Ky. 606, 271 S.W. 693,
694.
As to actual "Bias," "Damages," "Delivery," "Fraud,"
"Mal ice, " "Notice," "Occupation," "Ouster," "Posses-
sion," "Residence," "Seisin," "Total Loss," see those ti-
tles.
ACTUAL AUTHORITY. In the law of agency,
such authority as a principal intentionally confers
on the agent, or intentionally or by want of ordi-
nary care allows the agent to believe himself to
possess. National Cash Register Co. v. Wichita
Frozen Food Lockers, Tex.Civ.App., 172 S.W.2d
781, 787. Includes both express and implied au-
thority. Grismore v. Consolidated Products Co.,
232 Iowa 328, 5 N.W.2d 646, 651.
ACTUAL BIAS. See Bias.
ACTUAL CASH VALUE. The fair or reasonable
cash price for which the property could be sold
in the market, in the ordinary course of business,
and not at forced sale; the price it will bring in
a fair market after reasonable efforts to find a
purchaser who will give the highest price. Pea-
vy-Wilson Lumber Co. v. Jackson, 161 La. 669, 109
So. 351, 352. What property is worth in money,
allowing for depreciation. Glens Falls Ins. Co.
of New York v. Garner, 229 Ala. 39, 155 So. 533,
536. Ordinarily, "actual cash value," "fair mar-
ket price," and "market value" are synonymous
terms. Butler v. JEtna Ins. Co. of Hartford,
Conn., 64 N.D. 764, 256 N.W. 214, 218.
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ACTUAL
ACTUAL CHANGE OF POSSESSION. In stat-
utes of frauds, an open, visible, and unequivocal
change of possession, manifested by the usual out-
ward signs, as distinguished from a merely for-
mal or constructive change. Stevens v. Irwin,
15 Cal. 503, 76 Am.Dec. 500.
ACTUAL COST. The actual price paid for goods
by a party, in the case of a real bona fide pur-
chase, and not the market value of the goods.
Ogunquit Village Corporation v. Inhabitants of
Wells, 123 Me. 207, 122 A. 522, 524.
"Actual cost" has no common-law significance, and it is
without any well-understood trade or technical meaning.
It is a general or descriptive term which may have vary-
ing meanings according to the circumstances in which it is
used. It imports the exact sum expended or loss sus-
tained rather than the average or proportional part of the
cost. Its meaning may be restricted to overhead or ex-
tended to other items. State v. Northwest Poultry & Egg
Co., 203 Minn. 438, 281 N.W. 753, 755.
ACTUAL DELIVERY. See Delivery.
ACTUAL EVICTION. An actual expulsion of the
tenant out of all or some part of the demised
premises; a physical ouster or dispossession from
the very thing granted or some substantial part
thereof. Cauley v. Northern Trust Co., 315 Ill.
App. 307, 43 N.E.2d 147, 155, 315.
An arbitrary and willful interference with tenant's rights
by landlord is essential. Kusche v. Sabin, City Ct., New
Rochelle, 6 N.Y.S.2d 771, 773. Deprivation of beneficial
enjoyment of property in whole or in part or exclusion
from some portion of demised premises. Kusche v. Sabin,
City Ct., New Rochelle, 6 N.Y.S.2d 771, 773. Dispossession
by process of law, Stanton v. Conley, 278 N.Y.S. 275, 277,
244 App.Div. 84. Expulsion or exclusion from demised
premises. Liberal Savings & Loan Co. v. Frankel Realty
Co., 137 Ohio St. 489, 30 N.E.2d 1012, 1017, physical expul-
sion by landlord. General American Life Ins. Co. v. North
American Mfg. Co., 320 Ill.App. 488, 51 N.E.2d 619, wrong-
ful entry on premises by lessor is necessary. Title & Trust
Co. v. Durkheimer Inv. Co., 155 Or. 427, 63 P.2d 909.
ACTUAL FRAUD. See Fraud.
ACTUAL LOSS. One resulting from the real
and substantial destruction of the property in-
sured.
ACTUAL MARKET VALUE. In custom laws,
the price at which merchandise is freely offered
for sale to all purchasers; the price which the
manufacturer or owner would have received for
merchandise, sold in the ordinary course of trade
in the usual wholesale quantities. United States
v. Sischo, D.C.Wash., 262 F. 1001, 1011.
ACTUAL NOTICE. See Notice.
ACTUAL POSSESSION. See Possession.
ACTUAL PRACTICE. Active, open and notori-
ous engagement in business, vocation or profes-
sion as opposed to casual, occasional or clandes-
tine practice. State ex rel. Laughlin v. Washing-
ton State Bar Ass'n, 26 Wash.2d 914, 176 P.2d
301_, 309.
ACTUAL RESIDENCE. The abode, where one
actually lives, not mere naked legal residence.
In Re McGrath, 243 App.Div. 803, 278 N.Y.S. 135.
ACTUAL SALE. Lands are "actually sold" at a.
tax sale, so as to entitle the treasurer to the stat-
utory fees, when the sale is completed; when he
has collected from the purchaser the amount of
the bid. Miles v. Miller, 5 Neb. 272.
ACTUAL VALUE. "Actual value" to be awarded
in condemnation proceeding is price that would
probably result from negotiations between will-
ing seller and willing buyer. State v. Hoblitt,
87 Mont. 403, 288 P. 181, 185. "Actual value,".
"market value," "fair value," and the like may
be used as convertible terms. Kerr v. Clinch-
field Coal Corporation, 169 Va. 149, 192 S.E. 741,
744. "Saleable value," "actual value," "cash
value," and others used in directions to tax as-
sessing officers, all mean the same thing. In re
Lang Body Co., C.C.A.Ohio, 92 F.2d 338, 340.
ACTUAL VIOLENCE. An assault with actual
violence is an assault with physical force put in
action, exerted upon the person assailed. The
term violence is synonymous with physical force,
and the two are used interchangeably in rela-
tion to assaults. Tanner v. State, 24 Ga.App. 132,
100 S.E. 44.
ACTUARIUS. In Roman law, a notary or clerk.
One who drew the acts or statutes, or who wrote
in brief the public acts.
An officer who had charge of the public baths;
an officer who received the money for the soldiers,
and distributed it among them; a notary.
An actor, which see. Du Cange.
ACTUARY. In English ecclesiastical law, a clerk
that registers the acts and constitutions of the
lower house of convocation; or a registrar in a
court christian.
Also an officer appointed to keep savings banks
accounts; the computing officer of an insurance
company; a person skilled in calculating the val-
ue of life interests, annuities, and insurances.
Champagne v. Unity Industrial Life Ins. Co., La.
App., 161 So. 52, 53.
ACTUM. Lat. A deed; something done.
ACTUS. In the civil law, an act or action. Non
tantum verbis, sed etiam actu; not only by words,
but also by act. Dig. 46, 8. 5.
A species of right of way, consisting in the right
of driving cattle, or a carriage, over the land
subject to the servitude. Inst.. 2, 3, pr. It is some-
times translated a "road," and included the kind
of way termed "iter," or path. Lord Coke, who.
adopts the term "actus" from Bracton, defines it
a foot and horse way, vulgarly called "pack and
prime way;" but distinguishes it from a cart-way.
Co.Litt. 56a; Boyden v. Achenbach, 79 N.C. 539.
In old English law, an act of parliament; a
statute. 8 Coke 40. A distinction, however, was
sometimes made between actus and statutum.
Actus parliamenti was an act made by the lords
and commons; and it became statutum, when it
received the king's consent. Barring.Obs.St. 46,
note b.
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AD CULPAM
Actus curiae neminem gravabit. An act of the
court shall prejudice no man. Jenk.Cent. 118.
Where a delay in an action is the act of the court,
neither party shall suffer for it.
Actus Del nemini est damnosus. The act of God
is hurtful to no one. 2 Inst. 287. That is, a per-
son cannot be prejudiced or held responsible for
an accident occurring without his fault and at-
tributable to the "act of God." See Act of God.
Actus Del nemini facit injuriam. The act of
God does injury to no one. 2 Bl.Comm. 122. A
thing which is inevitable by the act of God, which
no industry can avoid, nor policy prevent, will
not be construed to the prejudice of any person in
whom there was no laches. Broom, Max. 230.
Actus inceptus, cujus perfectio pendet ex vol-
untate partium, revocari potest; si autem pen-
det ex voluntate testiae persona ., vel ex contin-
genti, revocari non potest. An act already be-
gun, the completion of which depends on the
will of the parties, may be revoked; but if it
depend on the will of a third person, or on a con-
tingency, it cannot be revoked. Bac.Max. reg. 20.
Actus judiciarius coram non judice irritus hab-
etur, de ministeriali autem a quocunque provenit
ratum esto. A judicial act by a judge without
jurisdiction is void; but a ministerial act, from
whomsoever proceeding, may be ratified. Lofft,
458.
Actus legis nemini est damnosus. The act of
the law is hurtful to no one. An act in law shall
prejudice no man. 2 Inst. 287.
Actus legis nemini facit injuriam. The act of
the law does injury to no one. 5 Coke, 116.
Actus legitimi non recipiunt modum. Acts re-
quired to be done by law do not admit of qualifica-
tion. Hob. 153; Branch, Princ.
Actus me invito factus non est meus actus. An
act done by me, against my will, is not my act.
Branch, Princ.
Actus non facit reum, nisi mens sit rea. An act
does not make [the doer of it] guilty, unless the
mind be guilty; that is, unless the intention be
criminal. 3 Inst. 107. The intent and the act
must both concur to constitute the crime. Lord
Kenyon, C. J., 7 Term 514; Broom, Max. 306.
Actus repugnus non potest in esse produci. A
repugnant act cannot be brought into being, i. e.,
cannot be made effectual. Plowd. 355.
Actus servi in its quibus opera ejus communiter
adhibita est, actus domini habetur. The act of a
servant in those things in which he is usually em-
ployed, is considered the act of his master. Lofft,
227.
A. D. An abbreviation of Anno Domini meaning
in the year of our Lord. Commonwealth v. Tray-
lor, 20 Ky.Law Rep. 97, 98, 45 S.W. 356.
AD. Lat. At; by; for; near; on account of;
to; until; upon; with relation to or concerning.
AD ABUNDANTIOREM CAUTELAM. L. Lat.
For more abundant caution. 2 How. State Tr.
1182. Otherwise expressed, ad cautelam ex super-
abundanti. Id. 1163.
AD ADMITTENDUM CLERICUM. For the ad-
mitting of the clerk. A writ in the nature of an
execution, commanding the bishop to admit his
clerk, upon the success of the latter in a quare
impedit.
AD ALIUD EXAMEN. To another tribunal; be-
longing to another court, cognizance, or jurisdic-
tion.
AD ALIUM DIEM. At another day. A common
phrase in the old reports. Yearb. P. 7 Hen. VI. 13.
AD ASSISAS CAPIENDAS. To take assises; to
take or hold the assises. Bract. fol. 110a; 3 Bl.
Comm. 185, 352. Ad assisam capiendam; to take
an assise. Bract. fol. 110b.
AD AUDIENDAM CONSIDERATIONEM
CURIIE. To hear the judgment of the court.
Bract. 383 b.
AD AUDIENDUM ET DETERMINANDUM. To
hear and determine. St. Westm. 2, cc. 29, 30. 4
Bla.Com. 278.
AD BARRAM. To the bar; at the bar. 3 How.
State Tr. 112.
AD BARRAM EVOCATUS. Called to the bar. 1
Ld.Raym. 59.
AD CAMPI PARTEM. For a share of the field
or land, for champert. Fleta, lib. 2, c. 36, § 4.
AD CAPTUM VULGI. Adapted to the common
understanding.
AD COLLIGENDUM. For collecting; as an ad-
ministrator or trustee ad colligendum. 2 Kent
414.
AD COLLIGENDUM BONA DEFUNCT'. For
collecting the goods of the deceased. See Admin-
istration of Estates.
AD COMMUNE NOCUMENTUM. To the com-
mon nuisance. Broom & H.Com. 196.
AD COMMUNEM LEGEM. At common law, the
name of a writ of entry (now obsolete) brought
by the reversioners after the death of the life
tenant, for the recovery of lands wrongfully
alienated by him.
AD COMPARENDUM. To appear. Ad compar-
endum, et ad standum juri, to appear and to
stand to the law, or abide the judgment of the
court. Cro.Jac. 67.
AD COMPUTUM REDDENDUM. To render an
account. St.Westm. 2, c. 11.
AD CULPAM. Until misbehavior.
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AD CURIAM
AD CURIAM. At a court. 1 Salk. 195. To court.
Ad curiam vocare, to summon to court.
AD CUSTAGIA. At the costs. Toullier; Cowell;
Whishaw.
AD CUSTUM. At the cost. 1 Bl.Comm. 314.
AD DAMNUM. In pleading. "To the damage."
The technical name of that clause of the writ
or declaration which contains a statement of the
plaintiff's money loss, or the damages which he
claims. Vincent v. Life Ass'n, 75 Conn. 650, 55
Atl. 177.
AD DEFENDENDUM. To defend. 1 Bl.Comm.
227.
AD DIEM. At a day; at the day. Townsh.Pl. 23.
Ad alium diem. At another day. Y.B. 7 Hen. VI,
13. Ad certum diem, at a certain day. 2 Strange,
747. Solvit ad diem; he paid at or on the day. 1
Chit.P1. 485.
AD EA QUZE FREQUENTIUS ACCIDUNT JURA
ADAPTANTUR. Laws are adapted to those cases
which most frequently occur. 2 Inst. 137; Broom,
Max. 43.
Laws are adapted to cases which frequently occur. A
statute, which, construed according to its plain words, is,
in all cases of ordinary occurrence, in no degree incon-
sistent or unreasonable, should not be varied by construc-
tion in every case, merely because there is one possible
but highly improbable case in which the laW would oper-
ate with great severity and against our notions of justice.
The utmost that can be contended is that the construction
of the statute should be varied in that particular case, so
as to obviate the injustice. 7 Exch. 549; 8 Exch. 778.
AD EFFECTUM. To the effect, or end. Co.Litt.
204a; 2 Crabb, Real Prop. p. 802, § 2143. Ad
effectum sequentem, to the effect following. 2
Salk. 417.
AD EVERSIONEM JURIS NOSTRI. To the over-
throw of our right. 2 Kent 91.
AD EXCAMBIUM. For exchange; for compensa-
tion. Bract. fol. 12b, 37b.
AD EXHIEREDATIONEM. To the disherison, or
disinheriting; to the injury of the inheritance. 3
Bl.Comm. 288.
Formal words in the old writ of waste, which calls upon,
the tenant to appear and show cause why he hath commit-
ted waste and destruction in the place named, ad exhcere-
dationem, etc. ; Fitzherbert, Nat. Bev. 55.
AD EXITUM. At issue; at the end (of the plead-
ings.) Steph.P1. 24.
AD FACIENDUM. To do. Co.Litt. 204a. Ad
faciendum, sub jiciendum et recipiendum; to do,
submit to, and receive. Ad faciendam juratamil-
lam; to make up that jury. Fleta, lib. 2, c. 65,
§ 12.
AD FACTUM PR1ESTANDUM. In Scotch law, a
name descriptive of a class of obligations marked
by unusual severity. A debtor ad fac. prces. is
denied the benefit of the act of grace, the privilege
of sanctuary, and the cessio bonorum; Erskine,
Inst. lib. 3, tit. 3, § 62; Kames, Eq. 216.
AD FEODI FIRMAM. To fee farm. Fleta, lib. 2,
c. 50, § 30.
AD FIDEM. In allegiance. 2 Kent, Comm. 56.
Subjects born ad fidem are those born in alle-
giance.
AD FILUM AQU1E. To the thread of the water;
to the central line, or middle of the stream.
Usque ad filum aquce, as far as the thread of the
stream. Bract. fol. 208b; 235a. A phrase of fre-
quent occurrence in modern law; of which ad
medium filum aquce (q. v.) is another form, and
etymologically more exact.
AD FILUM VIZE. To the middle of the way; to
the central line of the road. Parker v. Inhabi-
tants of Framingham, 8 Mete. (Mass.) 260.
AD FINEM. Abbreviated ad fin. To the end.
It is used in citations to books, as a direction to
read from the place designated to the end of the
chapter, section, etc. Ad finem litis, at the end
of the suit.
AD FIRMAM. To farm. Derived from an old
Saxon word denoting rent. Ad firmam noctis was
a fine or penalty equal in amount to the estimated
cost of entertaining the king for one night. Co-
well. Ad feodi firmam, to fee farm. Spelman.
AD FUNDANDAM JURISDICTIONEM. To make
the basis of jurisdiction. [1905] 2 K.B. 555.
AD GAOLAS DELIBERANDAS. To deliver the
gaols; to empty the gaols. Bract. fol. 109b. Ad
gaolam deliberandam; to deliver the gaol; to
make gaol delivery. Bract. fbl. 110b.
AD GRAVAMEN. To the grievance, injury, or
oppression. Fleta, lib. 2, c. 47, § 10.
AD HOC. For this; for this special purpose.
An attorney ad hoc, or a guardian or curator ad hoc,.
is one appointed for a special purpose, generally to repre-
sent the client or infant in the particular action in which
the appointment is made. Bienvenu v. Insurance Co., 33
La. Ann. 212.
AD HOMINEM. To the person. A term used in
logic with reference to a personal argument.
AD HUNC DIEM. At this day. 1 Leon. 90.
AD IDEM. To the same point, or effect. Ad idem
facit, it makes to or goes to establish the same
point. Bract. fol. 27b.
AD INDE. Thereunto. Ad inde requisitus, there-
unto required. Townsh.Pl. 22.
AD INFINITUM. Without limit; to an infinite
extent; indefinitely.
AD INQUIRENDUM. To inquire; a writ of in-
quiry; a judicial writ, commanding inquiry to be
made of anything relating to a cause pending in
court. Cowell.
AD INSTANTIAM. At the instance. 2 Mod. 44.
Ad instantiam partis, at the instance of a party.
Hale, Com.Law, 28.
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AD QUOD DAMNUM
AD INTERIM. In the meantime. An officer ad
interim is one appointed to fill a temporary va-
cancy, or to discharge the duties of the office dur-
ing the absence or temporary incapacity of its reg-
ular incumbent.
AD JUDICIUM. To judgment; to court. Ad judi-
cium provocare; to summon to court; to com-
mence an action; a term of the Roman law.
Dig. 5, 1, 13, 14.
AD JUNGENDUM AUXILIUM. To joining in
aid; to join in aid. See Aid Prayer.
AD JURA REGIS. To the rights of the king; a
writ which was brought by the king's clerk, pre-
sented to a living against those who endeavored to
eject him, to the prejudice of the king's title.
Reg. Writs 61.
AD LARGUM. At large: as, title at large; assize
at large. See Dane, Abr. c. 144, art. 16, § 7. Also
at liberty; free, or unconfined. Ire ad largum, to
go at large. Plowd. 37.
At large; giving details, or particulars; in
extenso. A special verdict was formerly called a
verdict at large. Plowd. 92.
AD LIBITUM. At pleasure. 3 Bla.Com. 292.
AD LITEM. For the suit; for the purposes of the
suit; pending the suit. A guardian ad litem is a
guardian appointed to prosecute or defend a suit
on behalf of a party incapacitated by infancy or
otherwise.
AD LUCRANDUM VEL PERDENDUM. For gain
or loss. Emphatic words in the old warrants of
attorney. Reg. Orig. 21, et seq. Sometimes ex-
pressed in English, "to lose and gain." Plowd.
201.
AD MAJOREM CAUTELAM. For greater se-
curity. 2 How.State Tr. 1182.
AD MANUM. At hand; ready for use. Et quer-
ens sectam habeat ad manum; and the plaintiff
immediately have his suit ready. Fleta, lib. 2,
c. 44, § 2.
AD MEDIUM FILUM AQU,E. To the middle
thread of the stream. See Ad Filum Aqu as.
AD MEDIUM FILUM VISE. To the middle thread
of the way.
AD MELIUS INQUIRENDUM. A writ directed to
a coroner commanding him to hold a second in-
quest. See 45 Law J.Q.B. 711.
AD MORDENDUM ASSUETUS. Accustomed to
bite. Cro.Car. 254. A material averment in dec-
larations for damage done by a dog to persons or
animals. 1 Chit.P1. 388; 2 Chit.P1. 597.
AD NOCUMENTUM. To the nuisance, or annoy-
ance; to the hurt or injury. Fleta, lib. 2, c. 52,
§ 19. Ad nocumentum liberi tenementi sui, to the
nuisance of his freehold. Formal words in the old
assise of nuisance. 3 Bl.Comm. 221.
AD OFFICIUM JUSTICIARIORUM SPECTAT,
UNICUIQUE CORAM EIS PLACITANTI JUS-
TITIAM EXHIBERE. It is the duty of justices
to administer justice to every one pleading before
them. 2 Inst. 451.
AD OMISSA VEL MALE APPRETIATA. With
relation to omissions or wrong interpretations. 3
Ersk.Inst. 9, § 36.
AD OPUS. To the work. See 21 Harv.L.Rev. 264,
citing 2 Poll. & Maitl. 232 et seq.; Use.
AD OSTENDENDUM. To show. Formal words
in old writs. Fleta, lib. 4, c. 65, § 12.
AD OSTIUM ECCLESIZE. At the door of the
church. One of the five species of dower formerly
recognized by the English law. 1 Washb.Real
Prop. 149; 2 Bl.Comm. 132.
AD PIOS USUS. Lat. For pious (religious or
charitable) uses or purposes. Used with reference
to gifts and bequests.
AD PROSEQUENDAM. To prosecute. 11 .Mod.
362.
Ad proximum antecedens fiat relatio nisi impedia-
tur sententia. Relative words refer to the near-
est antecedent, unless it be prevented by the con-
text. Jenk.Cent. 180; Brown v. Brown, Del., 3
Terry 157, 29 A.2d 149, 153.
AD PUNCTUM TEMPORIS. At the point of
time. Sto.Bailm. § 263.
AD QUIERIMONIAM. On complaint of.
AD QUAESTIONEM FACTI NON RESPONDENT
JUDICES, AD QUAESTIONEM JURIS NON RE-
SPONDENT JURATORES. Means that juries
must answer to questions of fact and judges to
questions of law. Ex parte United States, C.C.A.
Wis., 101 F.2d 870, 874.
AD QUEM. To which.
A term used in the computation of time or distance, as
correlative to a quo; denotes the end or terminal point.
See A Quo.
The terminus a quo is the point of beginning or de-
parture; the terminus ad quern, the end of the period or
point of arrival.
AD QUESTIONES FACTI NON RESPONDENT
JUDICES; AD QUESTIONES LEGIS NON RE-
SPONDENT JURATORES. Judges do not answer
questions of fact; juries do not answer questions
of law. 8 Coke, 308; Co.Litt. 295.
AD QUESTIONES LEGIS JUDICES, ET NON
JURATORES, RESPONDENT. Judges, and not
jurors, decide questions of law. 7 Mass. 279.
AD QUOD CURIA CONCORDAVIT. To which
the court agreed. Yearb.P. 20 Hen. VI. 27.
AD QUOD DAMNUM. The name of a writ for-
merly issuing from the English chancery, com-
manding the sheriff to make inquiry "to what
damage" a specified act, if done, will tend.
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AD QUOD DAMNUM
It is a writ which ought to be sued before the king
grants certain liberties, as a fair, market, or such like,
which may be prejudicial to others, and thereby it should
be inquired whether it will be a prejudice to grant them,
and to whom it will be prejudicial, and what prejudice 'will
come thereby. Termes de la Ley.
There is also another writ of ad quod damnum,
if any one will turn a common highway and lay
out another way as beneficial. Termes de la Ley.
The writ of ad quod damnum is a common-law writ, in
the nature of an original writ, issued by the prothonotary,
and in condemnation proceedings is returnable to and sub-
ject to confirmation of the Superior Court. Elbert v. Scott,
Del., 5 Boyce 1, 90 A. 587.
AD QUOD NON FUIT RESPONSUM. To which
there was no answer.
A phrase used in the reports, where a point advanced
in argument by one party was not denied by the other;
or where a point or argument of counsel was not met or
notice by the court; or where an objection was met by the
court, and not replied to by the counsel who raised it. 3
Coke, 9; 4 Coke, 40.
AD RATIONEM PONEJE. To cite a person to
appear. A technical expression in the old rec-
ords of the Exchequer, signifying, to put to the
bar and interrogate as to a charge made; to ar-
raign on a trial.
AD RECOGNOSCENDUM. To recognize. Fleta,
lib. 2, c. 65, § 12. Formal words in old writs.
AD RECTE DOCENDUM OPORTET, PRIMUM
INQUIRERE NOMINA, QUIA RERUM COGNI-
TIO A NOMINIBUS RERUM DEPENDET. In
order rightly to comprehend a thing, inquire
first into the names, for a right knowledge of
things depends upon their names. Co.Litt. 68.
AD RECTUM. (L. Lat.) To right. To do right.
To meet an accusation. To answer the demands
of the law. Habeant eos ad rectum. They shall
render themselves to answer the law, or to make
satisfaction. Bract. fol. 124 b.
AD REPARATIONEM ET SUSTENTATIONEM.
For repairing and keeping in suitable condition.
AD RESPONDENDUM. For answering; to make
answer; words used in certain writs employed
for bringing a person before the court to make
answer in defense in a proceeding, as in habeas
corpus ad respondendum and capias ad responden-
dum, q. v.
AD SATISFACIENDUM. To satisfy. The em-
phatic words of the writ of capias ad satisfacien-
dum, which requires the sheriff to take the person
of the defendant to satisfy the plaintiff's claim.
AD SECTAM. At the suit of. Commonly abbre-
viated to ads.
Used in entering and indexing the names of cases, where
it is desired that the name of the defendant should come
first. Thus, "B. ads. A." indicates that B. is defendant in
an action brought by A., and the title so written would
be an inversion of the more usual form "A. v. B."
AD STUDENDUM ET ORANDUM. For studying
and praying; for the promotion of learning and
religion. A phrase applied to colleges and uni-
versities. 1 Bl.Comm. 467.
AD TERMINUM ANNORUM. For a term of
years.
AD TERMINUM QUI PRIETERIT. For a term
which has passed. Words in the Latin form of the
writ of entry employed at common law to recover,
on behalf of a landlord, possession of premises,
from a tenant holding over after the expiration of
the term for which they were demised. See Fitzh.
Nat.Brev. 201.
AD TRISTEM PARTEM STRENUA EST SUS-
PICIO. Suspicion lies heavy on the unfortunate
side.
AD TUNC ET IBIDEM. In pleading, the Latin
name of that clause of an indictment containing
the statement of the subject-matter "then and
there being found."
AD ULTIMAN VIM TERMINORUM. To the most
extended import of the terms; in a sense as uni-
versal as the terms will reach. 2 Eden, 54.
AD USUM ET COMMODUM. To the use and
benefit.
AD VALENTIAM. To the value. See Ad Va-
lorem.
AD VALOREM. According to value. Powell v.
Gleason; Ariz., 74 P.2d 47, 50, 114 A.L.R. 838.
Duties are either ad valorem or specific; the former
when the duty is laid in the form of a percentage on the
value of the property ; the latter where it is imposed as a
fixed sum on each article of a class without regard to its
value. The term ad valorem tax means a tax or duty upon
the value of the article or thing subject to taxation. Ar-
thur v. Johnston, 185 S.C. 324, 194 S.E. 151, 154.
AD VENTREM INSPICIENDUM. To inspect the
womb. A writ for the summoning of a jury of
matrons to determine the question of pregnancy.
AD VIM MAJOREM VEL AD CASUS FORTUI-
TUS NON TENETUR QUIS, NISI SUA CULPA
INTERVENERIT. No one is held to answer for
the effects of a superior force, or of accidents, un-
less his own fault has contributed. Fleta, lib. 2,
c. 72, § 16.
AD VITAM. For life. Bract. fol. 13b. In feodo,
vel ad vitam; in fee, or for life. Id.
AD VITAM AUT CULPAM. For life or until
fault. Words descriptive of a tenure of office
"for life or good behavior," equivalent to quam-
diu bene se gesserit.
AD VOLUNTATEM. At will. Bract. fol. 27a. Ad
voluntatem domini, at the will of the lord.
AD WARACTUM. To fallow. Bract. fol. 228b.
See Waractum.
ADAPTED. Capable of use. People v. Dorring-
ton, 221 Mich. 571, 191 N.W. 831, 832. Indicates
that the object referred to has been made suit-
able; has been made to conform to ; has been
made fit by alteration. Raynor v. United States,
C.C.A.Ind., 89 F.2d 469, 471.
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ADDITIONAL
ADAWLUT. Corrupted from Adalat, justice, eq-
uity; a court of justice. The terms "Dewanny
Adawlut" and "Foujdarry Adawlut" denote the
civil and criminal courts of justice in India.
Wharton,
ADCORDABILIS DENARII. Money paid by a
vassal to his lord upon the selling or exchanging
of a feud. Enc. Lond,
ADD. To unite; attach; annex; join. Board
of Com'rs of Hancock County v. State, 119 Ind.
473, 22 N.E. 10.
ADDENDUM. A thing that is added or to be add-
ed; a list or section consisting of added material.
ADDICERE. Lat. In the civil law, to adjudge or
condemn; to assign, allot, or deliver; to sell.
In the Roman law, addico was one of the three
words used to express the extent of the civil
jurisdiction of the praetors.
ADDICT. As defined in Acts 1894, No. 157, one
who has acquired the habit of using spirituous
liquors or narcotics to such an extent as to de-
prive him of reasonable self-control. Interdiction
of Gasquet, 147 La. 722, 85 So. 884, 888.
ADDICTIO. In the Roman law, the giving up to
a creditor of his debtor's person by a magistrate;
also the transfer of the (deceased) debtor's goods
to one who assumes his liabilities.
Additio probat minoritatem. An addition [to a
name] proves or shows minority or inferiority.
4 Inst. 80; Wing.Max. 211, max. 60. That is, if it
be said that a man has a fee tail, it is less than if
he has the fee.
This maxim is applied by Lord Coke to courts, and,
terms of law; minoritas being understood in the sense of
difference, inferiority, or qualification.  Thus, the style
of the king's bench is coram rege, and the style of the
court of chancery is coram domino rege in cancellaria;
the addition showing the difference. 4 Inst. 80. By the
word "fee" is intended fee-simple, fee-tail not being in-
tended by it, unless there. be added to it the addition of
the word "tail." 2 Bl.Comm. 106; Litt. § 1.
ADDITION. Implies physical contact, something
added to another. Structure physically attached
to or connected with building itself. Mack v.
Eyssell, 332 Mo. 671, 59 S.W.2d 1049; Washington
Loan & Trust Co. v. Hammond, 51 App.D.C. 260,
278 F. 569, 571.
Extension; increase; augmentation. Meyering
v. Miller, 330 Mo. 885, 51 S.W.2d 65, 66.
That which has become united with or a part
of. Judge v. Bergman, 258 Ill. 246, 101 N.E. 574,
576.
French Law
A supplementary process to obtain additional
information. Guyot, Repert.
Insurance
The word "addition," as applied to buildings,
usually means a part added or joined to a main
building. Agnew v. Sun Ins. Office, 167 Wis. 456,
167 N.W. 829. It may also apply to buildings ap-
purtenant to some other building though not ac-
tually in physical contact therewith. Taylor v.
Northwestern Nat. Ins. Co., 34 Cal.App. 471, 167
P. 899. Not limited to structures physically a part
of the main building. Gertner v. Glens Falls Ins.
Co., 184 N.Y.S. 669, 670, 193 App.Div. 836,
Liens
Within the meaning of the mechanic's lien law,
an "addition" to a building must be a lateral ad-
dition. Lake & Risley Co. v. Still, 7 N.J.Misc. 47,
144 A. 110. It must occupy ground without the
limits of the building to which it constitutes an ad-
dition, so that the lien shall be upon the building
formed by the addition and the land upon which
it stands. Updike v. Skillman, 27 N.J.L. 132.
See also, Lamson v. Maryland Casualty Co., 196
Iowa 1185, 194 N.W. 70, 71.
An alteration in a former building, by adding to its
height, or to its depth, or to the extent of its interior ac-
commodations, is merely an "alteration," and not an "ad-
dition." Putting a new story on an old building is not an
addition. Updike v. Skillman, 27 N.J.L. 132. See, also,
Lamson v. Maryland Casualty Co., 196 Iowa 1185, 194 N.W.
70, 71. •
Did not include new livestock acquired by mortgagor aft-
er execution of mortgage. American State Bank of Water-
town v. Boyle, 212 Minn. 293, 4 N.W.2d 108, 109.
Name
Whatever is added to a man's name by way of
title or description. Cowell.
In English law, there are four kinds of additions,—addi-
tions of estate, such as yeoman, gentleman, esquire; ad-
ditions of degree, or names of dignity, as knight, earl, mar-
quis, duke; additions of trade, mystery, or occupation, as
scrivener, painter, mason, carpenter; and additions of
place of residence, as London, Chester, etc. The only ad-
ditions recognized in American law are those of mystery
and residence.
At common law there was no need of addition in any
case; 2 Ld.Raym. 988; it was required only by stat. 1
Hen. V. c. 5, in cases where process of outlawry lies. In
all other cases it is only a description of the person, and
common reputation is sufficient; 2 Ld.Raym. 849.
ADDITIONAL. This term embraces the idea of
joining or uniting one thing to another, so as
thereby to form one aggregate. Ex parte Boddie,
200 S.C. 379, 21 S.E.2d 4, 8.
"Additional security" imports a security, which, united
with or joined to the former one, is deemed to make it,
as an aggregate, sufficient as a security from the begin-
ning. State v. Hull, 53 Miss. 626; Searcy v. Cullman
County, 196 Ala. 287, 71 So. 664, 665.
ADDITIONAL BURDEN. See Eminent Domain.
ADDITIONAL INSURED. A person using anoth-
er's automobile, which is covered by liability
policy containing statutory omnibus clause, only
when insured's permission is expressly or implied-
ly given for particular use. Stewart v. City of Rio
Vista, 72 Cal.App.2d 279, 164 P.2d 274, 275.
Driver chosen by friend to whom automobile was en-
trusted by husband who had possession with direct permis-
sion of wife in whose name record title lay was not ad-
ditional insured. Fox v. Crawford, Ohio App., 80 N.E.2d
187, 189.
Where driver of automobile at time it struck pedestrian
was using automobile for his own purpose after having
received permission from owner only to get automobile
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ADDITIONAL
started and return automobile to owner's home, driver was
not additional insured. Howe v. Farmers Auto. Inter-In-
surance.Exchange; Wash., 202 P.2d 464, 472.
ADDITIONAL LEGACY. See Legacy.
ADDITIONAL SERVITUDE. The imposition of
a new and additional easement or servitude on
land originally taken by eminent domain proceed-
ings, a use of a different character, for which
owner of property is entitled to compensation. S.
D. Childs & Co. v. City of Chicago, 198 Ill.App.
590, 593; Williams v. Meridan Light & Ry. Co.,
110 Miss. 174, 69 So. 596, 597.
ADDITIONAL WORK. Of nature involved in
modifications and changes, not independent proj-
ect. Maryland Casualty Co. v. City of South Nor-
folk, C.C.A.Va., 54 F.2d 1032, 1037. Work which
results from a change or alteration in plans con-
cerning work which has to be done under a con-
tract, while "extra work" relates to work which is
not included within the contract itself. De Mar-
tini v. Elade Realty Corp., Co.Ct., 52 N.Y.S.2d 487,
489.
ADDITIONALES. In the law of contracts. Ad-
ditional terms or propositions to be added to a
former agreement.
ADDITUR. The power of trial court to assess
damages or increase amount of an inadequate
award made by jury verdict, as condition of de-
nial of motion for new trial, with consent of de-
fendant whether or not plaintiff consents to such
action. Dorsey et al. v. Barba et al., 226 P.2d
677.
ADDLED. Stupid, muddled, foolish. Windham v.
State, 93 Tex.Cr.R. 477, 248 S.W. 51, 54.
ADDLED PARLIAMENT. The parliament which
met in 1614. It sat for but two months and none
of its bills received the royal assent. Taylor,
Jurispr. 359.
ADDONE, Addonne. L. Fr. Given to. Kelham.
ADDRESS. Place where mail or other communi-
cations will reach person. Munson v. Bay State
Dredging & Contracting Co., 314 Mass. 435, 50
N.E.2d 633, 636. Generally a place of business or
residence.
Equity
Part of a bill wherein is given the appropriate
and technical description of the court in which
the bill is filed.
Legislation
A formal request addressed to the executive by
one or both branches of the legislative body, re-
questing him to perform some act.
It is provided as a means for the removal of judges
deemed unworthy, though the causes of removal would not
warrant impeachment. It is not provided for in the Con-
stitution of the United States; and even in those states
where the right exists it is exercised but seldom.
Offense
Not synonym of hazard, but an antonym, and,
as respects gaming and devices, means skillful
management, dexterity, or adroitness. In re Wig-
ton, 151 Pa.Super. 337, 30 A.2d 352, 355.
ADDRESS TO THE CROWN. When the royal
speech has been read in Parliament, an address in
answer thereto is moved in both houses. Two
members are selected in each house by the ad-
ministration for moving and seconding the ad-
dress. Since the commencement of the session
1890-1891, it has been a single resolution express-
ling their thanks to the sovereign for his gracious
speech.
ADDUCE. To present, bring forward, offer, in-
troduce. Used particularly with reference to evi-
dence. Tuttle v. Story County, 56 Iowa 316, 9
N.W. 292.
Broader in its signification than the word "of-
fered." Beatty v. O'Connor, 106 Ind. 81, 5 N.E.
880; Brown v. Griffin, 40 Ill.App. 558.
ADEEM. To take away, recall, or revoke. To
satisfy a legacy by some gift or substituted dis-
position, made by the testator, in advance. Tol-
man v. Tolman, 85 Me. 317, 27 Atl. 184. Wood-
burn Lodge No. 102, I. 0. 0. F., v. Wilson, 148 Or.
150, 34 P.2d 611, 614. See Ademption.
If the identical thing bequeathed is not in existence,
or has been disposed of, the legacy is "adeemed" and the
legatee's rights are gone. Lange v. Lange, 127 N.J.Eq.
315, 12 A.2d 840, 843; Welch v. Welch, 147 Miss. 728, 113
So. 197, 198.
ADELANTADO. In Spanish law, the military
and political governor of a frontier province.
This office has long since been abolished. Also a
president or president judge; a judge having
jurisdiction over a kingdom, or over certain prov-
inces only. So called from having authority over
the judges of those places. Las Partidas, pt. 3,
tit. 4, 1. 1.
ADELING, or ATHELING. Noble; excellent.
A title of honor among the Anglo-Saxons, proper-
ly belonging to the king's children. Spelman.
ADEMPTIO. Lat. In the civil law, a revocation
of a legacy; an ademption. Inst. 2, 21, pr. Where
it was expressly transferred from one person to
another, it was called translatio. Inst. 2, 21, 1;
Dig. 34, 4.
ADEMPTION. Extinction or withdrawal of lega-
cy by testator's act equivalent to revocation or in-
dicating intention to revoke. Tagnon's Adm'x v.
Tagnon, 253 Ky. 374, 69 S.W.2d 714.
Removal. Lewis v. Hill, 387 Ill. 542, 56 N.E.2d
619, 621. Testator's giving to a legatee that
which he has provided in his will, or his disposing
of that part of his estate so bequeathed in such
manner as to make it impossible to carry out the
will. Hurley v. Schuler, 296 Ky. 118, 176 S.W.2d
275, 276. Revocation, recalling, or cancellation,
of a legacy, according to the apparent inten-
tion of the testator, implied by the law from acts
done by him in his life, though such acts do not
amount to an express revocation of it. Burnham
v. Comfort, 108 N.Y. 535, 15 N.E. 710.
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ADHERENCE
The act by which the testator pays to his legatee, in his
life-time, a general legacy which by his will he had pro-
posed to give him at his death, 1 Rop.Leg. p. 365; and
the act by which a specific legacy has become inoperative
on account of the testator having parted with the subject.
Dillender v. Wilson, 228 Ky. 758, 16 S.W.2d 173, 174.
See Advancement.
ADEO. Lat. So, as. Adeo plene et integre, as
fully and entirely. 10 Coke, 65.
ADEQUATE. Sufficient; proportionate; equally
efficient; equal to what is required; suitable to
the case or occasion; satisfactory. Nagle v. City
of Billings, 77 Mont. 205, 250 P. 445, 446. Equal to
some given occasion or work. Nissen v. Miller, 44
N.M. 487, 105 P.2d 324, 326. Commensurate; it
does not mean average or graduation. Vander-
made v. Appert, 125 N.J.Eq. 366, 5 A.2d 868, 871.
ADEQUATE CARE. Such care as a man of ordi-
nary prudence would himself take under similar
circumstances to avoid accident; care proportion-
ate to the risk to be incurred. Wallace v. Wilming-
ton & N. R. Co., 8 Houst. (Del.) 529, 18 Atl. 818.
ADEQUATE CAUSE. suffiicient cause for a par-
ticular purpose. Pennsylvania & N. Y. Canal & R.
Co. v. Mason, 109 Pa. 296, 58 Am.Rep. 722.
In criminal law, adequate cause for the passion which
reduces a homicide committed under its influence from the
grade of murder to manslau g hter, means such cause as
would commonly produce a degree of anger, rage, resent-
ment, or terror, in a person of ordinary temper, sufficient
to render the mind incapable of cool reflection. Insulting
words or gestures, or an assault and battery so slight as to
show no intention to inflict pain or injury, or an injury to
property unaccompanied by violence are not adequate
causes. Vollintine v. State, 77 Tex.Cr.R. 522, 179 S.W. 108;
Berry v. State, 157 S.W.2d 650, 652, 143 Tex.Cr.R. 67. See
Adequate Provocation.
ADEQUATE COMPENSATION. Just value of
property taken under power of eminent domain,
payable in money. Buffalo, etc., R. Co. v. Ferris,
26 Tex. 588. Market value of property when
taken. Louisiana Highway Commission v. Guidry,
176 La. 389, 146 So. 1, 5. It includes interest. Tex-
arkana & Ft. S. Ry. Co. v. Brinkman, Tex.Civ.
App., 288 S.W. 852, 853. It may include the cost or
value of the property to the owner for the pur-
poses for which he designed it. Elbert County v.
Brown, 16 Ga.App. 834, 86 S.E. 651, 656.
Such only as puts injured party in as good a
condition as he would have been in if injury had
not been inflicted. Town of Winchester v. Cox,
129 Conn. 106, 26 A.2d 592, 597.
ADEQUATE CONSIDERATION. One which is
equal, or reasonably proportioned, to the value of
that for which it is given. 1 Story, Eq.Jur. §§
244-247. One which is not so disproportionate as
to shock our sense of that morality and fair deal-
ing which should always characterize transac-
tions between man and man. U. S. Smelting,
Refining & Milling Co. v. Utah Power & Light Co.,
197 P. 902, 905, 58 Utah, 168. Fair and reasonable
under circumstances. Boulenger v. Morison, 88
Cal.App. 664, 264 P. 256, 259. Reasonably just and
equitable. Laguna Land & Water Co. v. Green-
wood, 92 Cal.App. 570, 268 P. 699, 700.
ADEQUATE . OR REASONABLE FACILITIES.
Such railroad facilities as might be fairly de-
manded, with regard to size of place, extent of
demand for transportation, cost of furnishing ad-
ditional accommodation asked for, and to all other
facts which would have bearing upon question of
convenience and cost. Kurn v. State, 175 Okl.
379, 52 P.2d 841, 843.
ADEQUATE PREPARATION. Embraces full con-
sultation with accused, interviews with witnesses,
study of facts and law, and determination of char-
acter of defense to be made and policy to be fol-
lowed during trial. Nelson v. Commonwealth,
295 Ky. 641, 175 S.W.2d 132, 133.
ADEQUATE PROVOCATION. An adequate prov-
ocation to cause a sudden transport of passion
that may suspend the exercise of judgment and
exclude premeditation and a previously formed
design is one that is calculated to excite such
anger as might obscure the reason or dominate
the volition of an ordinary reasonable man. Com-
monwealth v. Webb, 252 Pa. 187, 97 A. 189, 191.
ADEQUATE REMEDY. One vested in the com-
plainant, to which he may at all times resort at
his own option, fully and freely, without let or
hindrance. Wheeler v. Bedford, 7 A. 22, 54 Conn.
244; State ex rel. Heimov v. Thomson, 131 Conn.
8, 37 A.2d 689, 692. Suitable, proportionate, or
sufficient. Fischer v. Damm, 36 Ohio App. 515, 173
N.E. 449, 451.
A remedy which is plain and complete and as practical
and efficient to the ends of justice and its prompt ad-
ministration as the remedy in equity. Farmers & Traders
Bank v. Kendrick, 341 Mo. 571, 108 S.W.2d 62, 64.
A remedy that affords complete relief with reference to
the particular matter in controversy, and is appropriate to
the circumstances of the case. State v. Huwe, 103 Ohio St.
546, 134 N.E. 456, 459. A remedy to be adequate, preclud-
ing resort to mandamus, must not only be one placing re-
lator in statu quo, but must itself enforce in some way per-
formance of the particular duty. State v. Erickson, 104
Conn. 542, 133 A. 683, 686. Must reach end intended, ane,
actually compel performance of duty in question. Bucha-
nan v. Buchanan, 124 Va. 255, 6 S.E.2d 612, 620. Must be
plain, accurate, certain, speedy, specific, and appropriate
to the particular circumstances, and must also be equally
as convenient, beneficial, and effective as the remedy by
mandamus. Simpson v. Williams Rural High School Dist.,
Tex.Civ.App., 153 S.W.2d 852, 856.
ADESSE. In the civil law; to be present; the
opposite of abesse. Calvin.
ADEU. Without day, as when a matter is finally
dismissed by the court. Alez adeu, go without
day. Y. B. 5 Edw. II. 173. See Adieu.
ADFERRUMINATIO. In the civil law, the weld-
ing together of iron; a species of adjunctio, (q.
v.). Called also ferruminatio. Mackeld.Rom.Law,
§ 276; Dig. 6, 1, 23, 5.
ADHERENCE. In Scotch law, the name of a form
of action by which the mutual obligation of mar-
riage may be enforced by either party. Bell. It
corresponds to the English action for the restitu-
tion of conjugal rights. Wharton.
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ADHERING
ADHERING. Joining, leagued with, cleaving to;
as, "adhering to the enemies of the United States."
"Adhering" consists in giving to the United States the
loyalty due from a citizen. United States v. Stephan, D.C.
Mich., 50 F.Supp. 738, 741.
Any intentional act furthering hostile designs of enemies
of the United States, or an act which intentionally
strengthens or tends to strengthen enemies of the United
States, or which weakens or tends to weaken power of the
United States to resist and attack such enemies, constitutes
"adhering" to such enemies. United States v. Haupt, D.C.
Ill., 47 F.Supp. 836, 839.
Rebels, being citizens: are not "enemies," within the
meaning of the constitution; hence a conviction for trea-
son, in promoting a rebellion, cannot be sustained under
that branch of the constitutional definition which speaks of
"adhering to their enemies, giving them aid and comfort."'
United States v. Greathouse, 2 Abb.U.S. 364, Fed.Cas.No.
15,254.
ADHESION. The entrance of another state into
an existing treaty with respect only to a part of
the principles laid down or the stipulations agreed
to. Opp.Int.L. § 533.
Properly speaking, by adhesion the third state
becomes a party only to such parts as are spe-
cifically agreed to, and by accession it accepts and
is bound by the whole treaty. See Accession.
ADHIBERE. In the civil law, to apply; to em-
ploy; to exercise; to use. Adhibere diligentiam,
to use care. Adhibere vim, to employ force.
ADIATION. A term used in the laws of Holland
for the application of property by an executor.
Wharton.
ADIEU. L. Fr. Without day. A common term
in the Year Books, implying final dismissal from
court.
ADIPOCERE. A waxy substance (chemically
margarate of ammonium or ammoniacal soap)
formed by the decomposition of animal matter
protected from the air but subjected to moisture;
in medical jurisprudence, the substance into which
a human cadaver is converted which has been
buried for a long time in a saturated soil or has
lain long in water.
ADIRATUS. Lost; strayed; a price or value set
upon things stolen or lost, as a recompense to the
owner. Cowell.
ADIT. In mining law, an entrance or approach;
a horizontal excavation used as an entrance to a
mine, or a vent by which ores and water are car-
ried away; an excavation "in and along a lode,"
which in statutes of Colorado and other mining
states is made the equivalent of a discovery shaft.
Electro-Magnetic M. & D. Co. v. Van Auken, 9
Colo. 204, 11 P. 80.
ADITUS. An approach; a way; a public way.
Co.Litt. 56a.
ADJACENT. Lying near or close to; sometimes,
contiguous; neighboring. Ex parte Jeffcoat, 108
Fla. 207, 146 So. 827. Adjacent implies that the
two objects are not widely separated, though they
may not actually touch, Harrison v. Guilford
County, 218 N.C. 718, 12 S.E.2d 269, while adjoin-
ing imports that they are so joined or united to
each other that no third object intervenes. Wolfe
v. Hurley, D.C.La., 46 F.2d 515, 521.
A word of flexible meaning, depending upon context and
subject matter. U. S. v. Denver & R. G. Ry. Co., D.C.
Colo., 31 F. 886; Johnston v. Davenport Brick & Tile Co.,
D.C.Iowa, 237 F. 668, 669.
Suburbs of city not within limits of another municipali-
ty though a long strip of land 10 feet wide connected the
property with city limits. Lefler v. City of Dallas, Tex.
Civ.App., 177 S.W.2d 231, 235.
ADJECTIVE LAW. The aggregate of rules of
procedure or practice. As opposed to that body
of law which the courts are established to ad-
minister, (called "substantive law,") it means the
rules according to which the substantive law is
administered. That part of the law which pro-
vides a method for enforcing or maintaining
rights, or obtaining redress for their invasion.
Maurizi v. Western Coal & Mining Co., 321 Mo.
378, 11 S.W.2d 268, 272. Holl.Jur. 61,238.
ADJOINING. The word in its etymological sense,
means touching or contiguous, as distinguished
from lying near to or adjacent. Broun v. Texas
& N. 0. R. Co., Tex.Civ.App., 295 S.W. 670, 674;
Plainfield-Union Water Co. v. Inhabitants of City
of Plainfield, 84 N.J.Law, 634, 87 A. 448, 450. To
be in contact with; to abut upon. State ex rel.
Boynton v. Bunton, 141 Kan. 103, 40 P.2d 326, 328.
And the same meaning has been given to it when
used in statutes. City of New York v. Alheidt,
151 N.Y.S. 463, 464, 88 Misc. 524. See Adjacent.
ADJOURN. To put off; defer; postpone. To
postpone action of a convened court or body until
another time specified, or indefinitely, the latter
being usually called to adjourn sine die. Bispham
v. Tucker, 2 N.J.L. 253; Reynolds v. Cropsey, 241
N.Y. 389, 150 N.E. 303. To suspend or recess dur-
ing a meeting which continues in session. Byrd
v. Byrd, 193 Miss. 249, 8 So.2d 510, 512.
Suspending business for a time, delaying. Prob-
ably, without some limitation, it would, when used
with reference to a sale on foreclosure, or any
judicial proceeding, properly include the fixing of
the time to which the postponement was made.
Waldrop v. Kansas City Southern Ry. Co., 131
Ark. 453, 199 S.W. 369, 371, L.R.A.1918B, 1081.
ADJOURNAL. A term applied in Scotch law and
practice to the records of the criminal courts.
The original records of criminal trials were called
"bukis of adiornale," or "books of adjournal,"
few of which are now extant. An "act of ad-
journal" is an order of the court of justiciary
entered on its minutes.
ADJOURNAMENTUM EST AD DIEM DICERE
SEU DIEM DARE. An adjournment is to appoint
a day or give a day. 4 Inst. 27. Hence the formu-
la "eat sine die."
ADJOURNATUR. L. Lat. It is adjourned. A
word with which the old reports very frequently
conclude a case. 1 Ld.Raym. 602; 1 Show. 7; 1
Leon. 88.
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ADJUDICATION
A continuation of the same meeting, and at such
adjourned meeting the governing body can do any
act which might have been done if no adjourn-
ment had taken place, and limitations imposed on
governing body as regards action at original meet-
ing obtain at adjourned meeting. Vogel v. Parker,
118 N.J.L. 521, 193 A. 817, 818. One ordered by
board at regular meeting, and which is to con-
vene after termination of such regular meeting
and prior to next regular meeting. Byrd v. Byrd,
193 Miss. 249, 8 So.2d 510, 513.
ADJOURNED SUMMONS. A summons taken out
in the chambers of a judge, and afterwards taken
into court to be argued by counsel.
ADJOURNED TERM. In practice, a continuance,
by adjournment, of a regular term. Harris v.
Gest, 4 Ohio St. 473; Kingsley v. Bagby, 2 Kan.
App. 23, 41 P. 991. Distinguished from an "addi-
tional term," which is a distinct term. Harris v.
Gest, 4 Ohio St. 473; Kingsley v. Bagby, 2 Kan.
App. 23, 41 P. 991. A continuation of a previous
or regular term; the same term prolonged, where-
in power of court over business which has been
done, and the entries made at the regular term,
continues. Van Dyke v. State, 22 Ala. 57; Carter
v. State, 14 Ga.App. 242, 80 S.E. 533, 534.
ADJOURNMENT. A putting off or postponing of
business or of a session until another time or
place; the act of a court, legislative body, public
meeting, or officer, by which the session or assem-
bly is dissolved, either temporarily or finally, and
the business in hand dismissed from considera-
tion, either definitely or for an interval. If the
adjournment is final, it is said to be sine die. See
Johnson City v. Tennessee Eastern Electric Co.,
133 Tenn. 632, 182 S.W. 587, 589.
In the civil law a calling into court; a sum-
moning at an appointed time. Due Cange.
ADJOURNMENT DAY. A further day appointed
by the judges at the regular sittings at nisi prius
to try issue of fact not then ready for trial.
ADJOURNMENT DAY IN ERROR. In English
practice, a day appointed some days before the
end of the term at which matters left undone on
the affirmance day are finished. 2 Tidd, Pr. 1176.
ADJOURNMENT IN EYRE. The appointment of
a day when the justices in eyre mean to sit again.
Cowell; Spelman.
ADJOURNMENT SINE DIE. An adjournment
without setting a time for another meeting or ses-
sion. See Sine Die.
ADJUDGE. To pass on judicially, to decide, set-
tle, or decree, or to sentence or condemn. People
v. Rave, 364 Ill. 72, 3 N.E.2d 972, 975.
Judgment of a court of competent jurisdiction; equiva-
lent of convicted and sentenced. In re Tarlo's Estate, 315
Pa. 321, 172 A. 139, 140. Implies a judicial determination
of a fact, and the entry of a judgment. Department of
Banking v. Hedges, 136 Neb. 382, 286 N.W. 277, 283. Does
not mean the same as deemed contra, under statute,
State v. District Court, 64 Mont. 181, 208 P. 952, 955.
Blaufus v. People, 69 N.Y. 107, 25 Am.Rep. 148. Predicated
only of an act of the court. Searight v. Com., 13 S. & R.
Pa. 301. Compare Drinkhouse v. Van Ness, 202 Cal. 359,
260 P. 869, 874 ; People ex rel. Strohsahl v. Strohsahl, 222
N.Y.S. 319, 324, 221 App. Div. 86.
ADJUDICATAIRE. In Canadian law, a purchaser
at a sheriff's sale. See 1 Low.Can. 241; 10 Low.
Can. 325.
ADJUDICATE. To settle in the exercise of ju-
dicial authority. To determine finally. Synony-
mous with adjudge in its strictest sense. United
States v. Irwin, 8 S.Ct. 1033, 127 U.S. 125, 32 L.Ed.
99; Street v. Benner, 20 Fla. 700.
ADJUDICATEE. In French and civil law, the
purchaser at a judicial sale. Brent v. New Or-
leans, 6 So. 793, 41 La.Ann. 1098.
ADJUDICATIO. In the civil law, an adjudication.
The judgment of the court that the subject-matter
is the property of one of the litigants; confirma-
tion of title by judgment. Mackeld.Rom.Law, §
204.
ADJUDICATION. The giving or pronouncing a
judgment or decree in a cause; also the judgment
given. People ex rel. Argus Co. v. Hugo, 168 N.Y.
S. 25, 27, 101 Misc. 481. Or the entry of a decree
by a court in respect to the parties in a case.
Samuel Goldwyn, Inc., v. United Artists Corpora-
tion, C.C.A.Del., 113 F.2d 703, 706.
It implies a hearing by a court, after notice, of legal
evidence on the factual issue involved. Genzer v. Fillip,
Tex.Civ.App., 134 S.W.2d 730, 732. The equivalent of a
"determination." Campbell v. Wyoming Development Co.,
55 Wyo. 347, 100 P.2d 124, 132. And contemplates that the
claims of all the parties thereto have been considered and
set at rest. Miller v. Scobie, 152 Fla. 328, 11 So.2d 892, 894.
The term is principally used in bankruptcy proceedings,
the adjudication being the order which declares the debtor
to be a bankrupt. First Nat. Bank v. Pothuisje, 217 Ind. 1,
25 N.E.2d 436, 438, 130 A.L.R. 1238.
French Law
A sale made at public auction and upon com-
petition. Adjudications are voluntary, judicial, or
administrative. Duverger.
Scotch Law
A species of diligence, or process for trans-
ferring the estate of a debtor to a creditor, car-
ried on as an ordinary action before the court of
session. A species of judicial sale, redeemable by
the debtor. A decreet of the lords of session, ad-
judging and appropriating a person's lands, here-
ditaments, or any heritable right to belong to his
creditor, who is called the "adjudger," for payment
or performance. Bell; Ersk.Inst. c. 2, tit. 12, §§
39-55; Forb.Inst. pt. 3, b. 1, c. 2, tit. 6.
Adjudication contra hreditatem jacentem. When
a debtor's heir apparent renounces the succession,
any creditor may obtain a. decree cognitionis
causel, the purpose of which is that the amount of
the debt may be ascertained so that the real estate
may be adjudged.
Adjudication in bankruptcy. See Bankruptcy.
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ADJUDICATION
Adjudication in implement. An action by a gran-
tee against his grantor to compel him to com-
plete the title.
ADJUNCT. Something added to another. New
York Trust Co. v. Carpenter, C.C.A.Ohio, 250 F.
668, 672.
An additional judge sometimes appointed in the
Court of. Delegates, q. v.
ADJUNCTIO. In the civil law, adjunction; a
species of accessio, whereby two things belong-
ing to different proprietors are brought into firm
connection with each other; such as interweaving,
(intertextura); welding together, (adferrumina-
tio); soldering together, (applumbatura); paint-
ing, (pictura); writing, (scriptura); building,
(inadificatio); sewing, (ratio) ; and planting,
(plantatio).  Inst. 2, 1, 26-34; Dig. 6, 1, 23;
Mackeld.Rom.Law, § 276. See Accessio.
ADJUNCTION. In civil law, the attachment or
union permanently of a thing belonging to one
person to that belonging to another. This union
may be caused by inclusion, as if one man's dia-
mond be set in another's ring, or by soldering,
sewing, construction, writing, or painting.
The common law implicitly adopts the civil law
doctrines. See 2 Bla.Com. 404. See Accession.
One associated with another in a subordinate
or an auxiliary manner; an associate.
ADJUNCTS. Additional judges sometimes ap-
pointed in the Court of Delegates, q. v. See Shel-
ford, Lun. 310; 1 Hagg.Eccl.Rep. 384; 2 Id. 84;
3 id. 471.
ADJUNCTUM ACCESSORIUM. An accessory or
appurtenance.
ADJURATION. A swearing or binding upon oath.
ADJUST. To settle or arrange; to free from
differences or discrepancies; to bring to satis-
factory state so that parties are agreed, as to ad-
just amount of loss by fire. Western Loggers' Ma-
chinery Co. v. National Union Fire Ins. Co., 136
Or. 549, 299 P. 311, 312. Controversy to property
or estate, In re Sidman's Estate, 278 N.Y.S. 43,
154 Misc. 675. To bring to proper relations; to
settle; Jeff Davis County v. Davis, Tex.Civ.App.,
192 S.W. 291, 295. To determine and apportion an
amount due. Flaherty v. Insurance Co., 46 N.Y.S.
934, 20 App.Div. 275. Accounts are adjusted when
they are settled and a balance struck. Townes v.
Birchett, 12 Leigh Va. 173, 201. It is sometimes
used in the sense of pay. See Lynch v. Nugent,
80 Iowa, 422, 46 N.W. 61. When used in reference
to a liquidated claim, Combination Oil & Gas Co.
v. Brady, Tex.Civ.App., 96 S.W.2d 415, 416.
ADJUSTED COST BASIS. For income tax pur-
poses, original cost plus additions to capital less
depreciation results in the "adjusted cost basis."
Herder v. Helvering, 106 F.2d 153, 162, 70 App.D.
C. 287.
ADJUSTER. One appointed to adjust a matter, to
ascertain or arrange or settle. Commercial Credit
Co. v. Macht, 89 Ind.App. 59, 165 N.E. 766. One
who makes any adjustment or settlement. Popa
v. Northern Ins. Co., 192 Mich. 237, 158 N.W. 945,
946, or who determines the amount of a claim, as
a claim against an insurance company. Sam-
chuck v. Insurance Co. of North America, 99 Or.
565, 194 P. 1095. He is a special agent for the
person or company for whom he acts. Bond v.
National Fire Ins. Co., 77 W.Va. 736, 88 S.E. 389,
394; Howe v. State Bar of California, 212 Cal.
222, 298 P. 25, 27. Compare Manheim v. Standard
Fire Ins. Co. of Hartford, Conn., 84 Wash. 16, 145
P. 992.
ADJUSTMENT. An arrangement; a settlement.
Henry D. Davis Lumber Co. v. Pacific Lumber
Agency, 220 P. 804, 805, 127 Wash. 198.
In the law of insurance, the adjustment of a loss is the
ascertainment of its amount and the ratable distribution
of it among those liable to pay it; the settling and as-
certaining the amount of the indemnity which the assured,
after all allowances and deductions made, is entitled to re-
ceive under the policy, and fixing the proportion which
each underwriter is liable to pay. Marsh.Ins. 4th Ed. 499;
2 Phil.Ins. §§ 1814, 1815; New York v. Insurance Co., 39
N.Y. 45, 100 Am. Dec. 400; Whipple v. Insurance Co., 11 R.
I. 139.
ADJUTANT GENERAL. The term "civil adju-
tant general" is used as one of convenience mere-
ly to designate state adjutant general who has
not been officially recognized by War Department.
People v. Newlon, 77 Colo. 516, 238 P. 44, 47.
ADJUVARI QUIPPE NOS, NON DECIPI, BENE-
FICIO OPORTET. We ought to be favored, not
injured by that which is intended for our benefit.
(The species of bailment called "loan" must be
to the advantage of the borrower, not to his detri-
ment.) Story, Bailm. § 275. See 8 El. & Bl. 1051.
ADLAMWR. In Welsh law, a proprietor who, for
some cause, entered the service of another proprie-
tor, and left him after the expiration of a year
and a day. He was liable to the payment of 30
pence to his patron. Wharton.
ADLEGIARE. To purge one's self of a crime by
oath.
ADMANUENSIS. A person who swore by laying
his hands on the book.
ADMEASUREMENT. Ascertainment by measure;
measuring out; assignment or apportionment by
measure, that is, by fixed quantity or value, by
certain limits, or in definite and fixed proportions.
ADMEASUREMENT OF DOWER. In practice, a
remedy which lay for the heir on reaching his
majority to rectify an assignment of dower made
during his minority, by which the doweress had
received more than she was legally entitled to. 2
Bl.Comm. 136; Gilb. Uses, 379.
The remedy is of rare occurrence. Jones v. Brewer, 1
Pick. (Mass.) 314; McCormick v. Taylor, 2 Ind. 336. In
some of the states the statutory proceeding enabling a
widow to compel the assignment of dower is called "ad-
measurement of dower."
ADMEASUREMENT OF PASTURE. In English
law, a writ which lay between those that have
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ADMINISTRATION
common of pasture appendant, or by vicinage, in
cases where any one or more of them surcharges
the common with more cattle than they ought.
Bract. fol. 229a; 1 Crabb, Real Prop. p..318, §
358. The remedy is now abolished in England; 3
Sharsw.Bla.Com. 239, n.; and in the United States;
3 Kent 419.
ADMEASUREMENT, WRIT OF. It lay against
persons who usurped more than their share, in
the two following cases: Admeasurement of dow-
er, and admeasurement of pasture. Termes de
la Ley.
ADMENSURATIO. In old English law, admeas-
urement. Reg.Orig. 156, 157.
ADMEZATORES. In old Italian law, persons
chosen by the consent of contending parties, to
decide questions between them. Literally, media-
tors. Spelman.
ADMINICLE. Used as an English word in the
statute of 1 Edw. IV, c. 1, in the sense of aid, or
support.
In civil law, imperfect proof. Merl. Rêpert.
See Adminiculum.
In Scotch law, an aid or support to something
else. A collateral deed or writing, referring to
another which has been lost, and which it is in
general necessary to produce -before the tenor of
the lost deed can be proved by parol evidence.
Ersk.Inst. b. 4, tit. 1, § 55.
ADMINICULAR. Auxiliary or subordinate to.
"The murder would be adminicular to the rob-
bery," (i. e., committed to accomplish it.) The
Marianna Flora, 3 Mason, 121, Fed.Cas.No.9080.
ADMINICULAR EVIDENCE. Auxiliary or sup-
plementary evidence; such as is presented for the
purpose of explaining and completing other evi-
dence. (Chiefly used in ecclesiastical law)
ADMINICULATE. To give adminicular evidence.
ADMINICULATOR. An officer in the Romish
church, who administered to the wants of widows,
orphans, and afflicted persons. Spelman.
ADMINICULUM. Lat. An adminicle; a prop or
support; an accessory thing. An aid or support
to something else, whether a right or the evidence
of one. It is principally used to designate evi-
dence adduced in aid or support of other evidence,
which without it is imperfect. Brown.
ADMINISTER. To manage or conduct. Glocksen
v. Holmes, 299 Ky. 626, 186 S.W.2d 634, 637. To
discharge the duties of an office; to take charge
of business; to manage affairs; to serve in the
conduct of affairs, in the application of things to
their uses; to settle and distribute the estate of a
decedent. Hunter v. City of Louisville, 208 Ky.
562, 271 S.W. 690, 691.
Also, to give, as an oath; to direct or cause to
be taken. Gilchrist v. Comfort, 34 N.Y. 239; Brin-
son v. State, 89 Ala. 105, 8 So. 527; State v.
Van Wormer, 103 Kan. 309, 173 P. 1076, 1081.
Black's Law Dictionary Revised 4th Ed.-5
To apply, as medicine or a remedy; to give, as
a dose or something beneficial or suitable. Bar-
field v. State, 71 Okl.Cr. 195, 110 P.2d 316, 317. To
cause or procure a person to take some drug or
other substance into his or her system; to direct
and cause a medicine, poison, or drug to be taken
into the system. State v. Jones, 4 Pennewill
(Del.) 109, 53 Atl. 861; McCaughey v. State, 156
Ind. 41, 59 N.E. 169.
Neither fraud nor deception is a necessary in-
gredient in the act of administering poison. To
force poison into the stomach of another; to com-
pel another by threats of violence to swallow
poison; to furnish poison to another for the pur-
pose and with the intention that the person to
whom it is delivered shall commit suicide there-
with, and which poison is accordingly taken by
the suicide for that purpose; or to be present at
the taking of poison by a suicide, participating in
the taking thereof, by assistance, persuasion, or
otherwise,—each and all of these are forms and
modes of "administering" poison. Blackburn v.
State, 23 Ohio St. 146.
ADMINISTRATION. Managing or conduct of an
office or employment; the performance of the ex-
ecutive duties of an institution, business, or the
like. Webb v. Frohmiller, 52 Ariz. 128, 79 P.2d
510.
In public law, the administration of govern-
ment means the practical management and direc-
tion of the executive department, or of the public
machinery or functions, or of the operations of
the various organs of the sovereign; direction or
oversight of any office, service, or employment.
Greene v. Wheeler, C.C.A.Wis., 29 F.2d 468, 469.
The term "administration" is also conventionally
applied to the whole class of public functionaries,
or those in charge of the management of the ex-
ecutive department. House v. Creveling, 147 Tenn.
589, 250 S.W. 357, 358.
ADMINISTRATION EXPENSE. "Administrative
expenses" imply disbursements incidental to the
management of the estate for which credit would
be allowed on a voucher. In re Hooker's Estate,
18 N.Y.S.2d 107, 112, 173 Misc. 515. Those deducti-
ble in computing estate tax are merely charges
which are proper deductions and in ordinary
course of administration will ultimately be al-
lowed. Bourne v. U. S., Ct.C1., 2 F.Supp. 228, 231.
ADMINISTRATION OF ESTATES. Supervision
by an executor or administrator. Peterson v.
Demmer, D.C.Tex., 34 F.Supp. 697, 700. Manage-
ment of estate by independent executrix. Palfrey
v. Harborth, Tex.Civ.App., 158 S.W.2d 326, 327.
Normally involves the collection, management,
and distribution of estate, including legal proceed-
ings necessary to satisfy claims of creditors, next
of kin, legatees, or whatever other parties may
have any claim to property of a deceased person.
Hawley v. Hawley, 114 F.2d 745, 748, 72 App.D.C.
376.
The management and settlement of the estate of an in-
testate, or of a testator who has no executor, performed
under the supervision of a court, by a person duly qualified
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ADMINISTRATION
and legajly appointed, and usually involving (1) the col-
lection of the decedent's assets; (2) payment of debts and
claims against him and expenses; (3) distributing the re-
mainder of the estate among those entitled thereto.
The term is applied broadly to denote the management
of an estate by an executor, and also the management of
estates of minors, lunatics, etc., in those cases where trus-
tees have been appointed by authority of law to take
charge of such estates in place of the legal owners. Bouvi-
er; Crow v. Hubard, 62 Md. 565.
Administration is principally of the following kinds, viz.
Ad colligendum bona defuncti. To collect the goods of
the deceased. Special letters of administration granted to
one or more persons, authorizing them to collect and pre-
serve the goods of the deceased, are so called. 2 Bl.Comm.
5Q5; 2 Steph.Comm. 241. These are otherwise termed
"letters ad colligendum," and the party to whom they are
granted, a "collector."
An administrator ad colligendum is the mere agent or
officer of the court to collect and preserve the goods of
the deceased until some one is clothed with authority to
administer them, and cannot complain that another is ap-
pointed administrator in chief. Flora v. Mennice, 12 Ala.
836.
Ancillary administration is auxiliary and subordinate to
the administration at the place of the decedent's domicile;
it may be taken out in any foreign state or country where
assets are locally situated, and is merely for the purpose
of collecting such assets and paying debts there.
Cum testamento annexo. Administration with the will
annexed. Administration granted in cases where a testator
makes a will, without naming any executors ; or where
the executors who are named in the will are incompetent
to act, or refuse to act; or in case of the death of the
executors, or the survivor of them. 2 Bl.Comm. 503, 504.
De bonis non. Administration of the goods not ad-
ministered. Administration granted for the purpose of ad-
ministering such of the goods of a deceased person as were
not administered by the former executor or administrator.
Tucker v. Horner, 10 Phila.Pa. 122.
De bonis non cum testamento annexo. That which is
granted when an executor dies leaving a part of the es-
tate unadministered. Clemens v. Walker, 40 Ala. 189.
Durante absentia. That which is granted during the ab-
sence of the executor and until he has proved the will.
Durante minori cetate. Where an infant is made execu-
tor; in which case administration with will annexed is
granted to another, during the minority of such executor,
and until he shall attain his lawful age to act. See Godo.
102.
Foreign administration. That which is exercised by vir-
tue of authority properly conferred by a foreign power.
Pendente lite.  Administration during the suit. Ad-
ministration granted during the pendency of a suit touch-
ing the validity of a will. 18 N.J.Law, 15, 20.
Public administration is such as is conducted (in some
jurisdictions) by an officer called the public administrator,
who is appointed to administer in cases where the intes-
tate has left no person entitled to apply for letters.
General administration. The grant of authority to ad-
minister upon the entire estate of a decedent, without re-
striction or limitation, whether under the intestate laws or
with the will annexed. Clemens v. Walker, 40 Ala. 198.
Special administration. Authority to administer upon
some few particular effects of a decedent, as opposed to
authority to administer his whole estate. In re Senate Bill,
12 Colo. 193, 21 P. 482.
Letters of Administration. The instrument by which an
administrator or administratriX is authorized by the pro-
bate court, surrogate, or other proper officer, to have the
charge and administration of the goods and chattels of an
intestate. See Mutual Ben. L. Ins. Co. v. Tisdale, 91 U.S.
243, 23 L.Ed. 314.
ADMINISTRATION SUIT. In English practice, a
suit brought in chancery, by any one interested,
for administration of a decedent's estate, when
there is doubt as to its solvency. Stimson.
ADMINISTRATIVE. Connotes of or pertains to
administration, especially management, as by
managing or conducting, directing., or superintend-
ing, the execution, application, or conduct of per-
sons or things. Fluet v. McCabe, Mass., 299
Mass. 173, 12 N.E.2d 89, 93. Particularly, having
the character of executive or ministerial action.
Mauritz v. Schwind, Tex.Civ.App., 101 S.W.2d
1085, 1090. In this sense, administrative func-
tions or acts are distinguished from such as are
judicial. People v. Austin, 46 N.Y.Supp. 526, 20
App.Div. 1. Synonymous with "executive." Sheely
v. People, 54 Colo. 136, 129 P. 201, 202; Saint v.
Allen, 126 So. 548, 555, 169 La. 1046. An ad-
ministrative act concerns daily affairs as distin-
guished from permanent matters. People v.
Graham, 70 Colo. 509, 203 P. 277, 278.
ADMINISTRATIVE ACTS. Acts of an officer
which are to be deemed as acts of administration.
and are commonly called "administrative acts"
and classed among those governmental powers
properly assigned to the executive department,
'are those acts which are necessary to be done to
carry out legislative policies and purposes already
declared by the legislative body or such as are
devolved upon it by the organic law of its ex-
istence. Ex parte McDonough, 27 Cal.App.2d 155,
80 P.2d 485, 487.
ADMINISTRATIVE AGENCY. An agency of the
sovereign power charged with administering par-
ticular legislation. Examples are compensation
and industrial commissions, Joseph H. Weider-
hoff, Inc., v. Neal, D.C.Mo., 6 F.Supp. 798, 799;
Federal Trade Commission, Hastings Mfg. Co.
v. Federal Trade Commission, 153 F.2d 253, cer-
tiorari denied 66 S.Ct. 1344, 328 U.S. 853, 90 L.Ed.
1626; tax commissions, First State Bank of Moun-
tainair v. State Tax Commission, 59 P.2d 667, 40
N.M. 319; public service commissions, New York
Cent. R. Co. v. Public Service Commission, 7 N.E.
2d 957, 212 Ind. 329; and the like.
ADMINISTRATIVE BOARD. The term is very
broad and includes bodies exercising varied func-
tions, some of which involve orders made or
other acts done ex parte or without full hearing
as to the operative facts, while others are done
only after such a notice and hearing, and the
functions of the former kind are plainly "admin-
istrative" and those of the latter are "quasi ju-
dicial". Beaverdale Memorial Park v. Danaher,
127 Conn. 175, 15 A.2d 17, 21.
"Administrative boards" differ from "courts" in that
boards frequently represent public interests entrusted to
boards, whereas courts are concerned with litigating
rights of parties with adverse interests. Rommell v.
Walsh, 15 A.2d 6, 9, 127 Conn. 16.
ADMINISTRATIVE DISCRETION. "Administra-
tive discretion" means that the doing of acts or
things required to be done may rest, in part at
least, upon considerations not entirely susceptible
of proof or disproof and at times which consider-
ing the circumstances and subject-matter cannot
be supplied by the Legislature, and a statute con-
fers such discretion when it refers a commission
or officer to beliefs, expectations, or tendencies
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ADMIRAL
instead of facts for the exercise of the powers
conferred. Culver v. Smith, Tex.Civ.App., 74 S.
W.2d 754, 757.
ADMINISTRATIVE LAW. That branch of pub-
lic law which deals with the various organs of
the sovereign power considered as in motion, and
prescribes in detail the manner of their activity,
being concerned with such topics as the collection
of the revenue, the regulation of the military and
naval forces, citizenship and naturalization, sani-
tary measures, poor laws, coinage, police, the
public safety and morals, etc. See Holl.Jur. 305-
307.
ADMINISTRATIVE OFFICER. Politically and as
used in constitutional law, an officer of the execu-
tive department of government, and generally one
of inferior rank; legally, a ministerial or execu-
tive officer, as distinguished from a judicial offi-
cer. People v. Salsbury, 134 Mich. 537, 96 N.W.
936.
One who performs mere ministerial or administrative
functions. In re Gold, C.C.A.N.J., 93 F.2d 676, 680. Offi-
cers that are neither judicial nor legislative; executive
officers, Spivey v. State, 104 P.2d 263, 277, 69 Okl.Cr. 397.
Such as: The clerk of circuit court, State ex rel. and to
Use of City of St. Louis v. Priest, 348 Mo. 37, 152 S.W.2d
109, 112. Receivers in bank liquidation proceedings, People
ex rel. Nelson v. Crawford State Sa y . Bank, 310 Ill.App.
533, 34 N.E.2d 872. State highway commissioner, Strobel
Steel Const. Co. v. Sterner, 125 N.J.L. 622, 18 A.2d 28, 29.
ADMINISTRATIVE REMEDY. One not judicial,
but provided by commission or board created by
legislative power. Kansas City Southern R. Co.
v. Ogden Levee Dist., C.C.A.Ark., 15 F.2d 637,
642. Against wrongful assessment of benefits by
a levee district. Board of Directors of St. Francis
Levee Dist. v. St. Louis-San Francisco Ry. Co.,
C.C.A.Ark., 74 F.2d 183, 188.
ADMINISTRATOR, in the most usual sense of
the word, is a person to whom letters of admin-
istration, that is, an authority to administer the
estate of a deceased person, have been granted
by the proper court. A representative of limited
authority, whose duties are to collect assets of
estate, pay its debts, and distribute residue to
those entitled. Smith v. White's Estate, 108 Vt.
473, 188 A. 901, 904. A technical trustee. In re
Watkins' Estate, Vt., 41 A.2d 180, 188.
He resembles an executor, but, being appointed
by the court, and not by the deceased, he has to
give security for the due administration of the
estate, by entering into a bond with sureties, call-
ed the administration bond. Smith v. Gentry, 16
Ga. 31; Collamore v. Wilder, 19 Kan. 78; Gorm-
ley v. Watson, 177 Ga. 763, 171 S.E. 280, 281.
By the law of Scotland the father is what is called
the "administrator-in-law" for his children. As such, he
is ipso jure their tutor while they are pupils, and their
curator during their minority. The father's power ex-
tends over whatever estate may descend to his children,
unless where that estate has been placed by the donor or
grantor under the charge of special trustees or managers.
This power in the father ceases by the child's discontinu-
ing to reside with him, unless he continues to live at the
father's expense; and with re g ard to dnu-hte-s, it ceases
on their marriage, the husband being the legal curator of
his wife. Bell.
Civil Law
A manager or conductor of affairs, especially
the affairs of another, in his name or behalf. A
manager of public affairs in behalf of others.
Calvin. A public officer, ruler, or governor. Nov.
95, gl.; Cod. 12, 8.
Domestic
One appointed at the place of the domicile of
the decedent; distinguished from a foreign or an
ancillary administrator.
Foreign
One appointed or qualified under the laws of a
foreign state or country, where the decedent was
domiciled.
Public
An official provided for by statute in some states
to administer upon the property of intestates in
certain cases. See Rocca v. Thompson, 32 S.Ct.
207, 223 U.S. 317, 56 L.Ed. 453.
ADMINISTRATOR CUM TESTAMENTO AN-
NEXO. See Cum Testamento Annexo.
ADMINISTRATOR DE BONIS NON. "Adminis-
trators de bonis non administratis" are, as the
term signifies, persons appointed by the court of
probate to administer on the effects of a decedent
which have not been included in a former admin-
istration. Paul v. Butler, 129 Kan. 244, 282 P.
732, 734.
Where will is set aside as void, administrator subse-
quently appointed is not "administrator de bonis non,"
but administrator of entire estate with power to attack
nominated executor's report. Douglas' Adm'r v. Douglas'
Ex'r, 48 S.W.2d 11, 14, 243 Ky. 321.
ADMINISTRATOR WITH WILL ANNEXED. One
appointed administrator of deceased's estate after
executors named in will refused to act. In re
Kenney's Estate, 41 N.M. 576, 72 P.2d 27, 29, 113
A.L.R. 403.
ADMINISTRATRIX. A woman who administers,
or to whom letters of administration have been
granted.
ADMINISTRAVIT. Lat. He has administered.
Used in the phrase plene administravit, which is
the name of a plea by an executor or administra-
tor to the 'effect that he has "fully administered"
(lawfully disposed of) all the assets of the estate
that have come to his hands.
ADMIRAL. Title of high naval officers; they
are of various grades,—rear admiral, vice-admiral,
admiral, admiral of the fleet, the last named
being the highest. But by Act of Jan. 24, 1873 (17
Stat. 418), certain grades ceased to exist when
the offices became vacant.
In old English law, a high officer or magis-
trate that had the government of the king's navy,
and the hearing of all causes belonging to the sea.
Cowell.
In European law, an officer who presided over
the admiralitas, or collegium ammiralitatis. Locc.
de Jur.Mar. lib. 2, c. 2, § 1.
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ADMIRALITAS
ADMIRALITAS. L. Lat. Admiralty; the admir-
alty, or court of admiralty.
In European law, an association of private
armed vessels for mutual protection and defense
against pirates and enemies
ADMIRALTY. A court which has a very exten-
sive jurisdiction of maritime causes, civil and
criminal, controversies arising out of acts done
upon or relating to the sea, and questions of
prize.
It is properly the successor of the consular courts, which
were emphatically the courts of merchants and sea-going
persons, established in the principal maritime cities on the
revival of commerce after the fall of the Western Empire,
to supply the want of tribunals that might decide causes
arising out of maritime commerce.
Also, the system of jurisprudence relating to
and growing out of the jurisdiction and practice
of the admiralty courts.
American Law
A tribunal exercising jurisdiction over all mari-
time contracts, torts, injuries, or offenses. Pan-
ama R. Co. v. Johnson, 44 S.Ct. 391, 264 U.S. 375,
68 L.Ed. 748.
"Admiralty" does not extend to all navigable waters, but
is limited to the ocean, navigable rivers running into the
ocean, and the Great Lakes and their connections. The
Frank G. Fobert, D.C.N.Y., 32 F.Supp. 214, 216.
The jurisdiction of the admiral, and the administration
of the admiralty law proper—the local maritime law—as
it became a judicial function, has passed into the hands of
the courts. Renew v. U. S., D.C.Ga., 1 F.Supp. 256, 259.
English Law
The court of the admiral, perhaps erected by
Edward III, 3 Bla.Comm. 69, or as early , as the
time of Henry I.
The building where the lords of the admiralty
transact business.
ADMIRALTY, FIRST LORD OF THE. The nor-
mal head of the executive department of state
which presides over the naval forces of the king-
dom is the lord high admiral, but in practice the
functions of the great office are discharged by sev-
eral Lords Commissioners, of whom one, being
the chief, is called the "First Lord," and is a mem-
ber of the Cabinet. He is assisted by other lords,
called Sea Lords, and by various secretaries.
ADMISSIBLE. Pertinent and proper to be con-
sidered in reaching a decision. Used with refer-
ence to the issues to be decided in any judicial
proceeding.
As applied to evidence, the term means that it is
of such a character that the court or judge is
bound to receive it; that is, allow it to be intro-
duced.
ADMISSION.
Bail
The order of a competent court or magistrate
that a person accused of crime be discharged from
actual custody upon the taking of bail. People v.
Solomon, 15 Pac. 4, 5 Utah, 277.
Admitting to bail is a judicial act to be performed by a
court or judicial officer, Trevathan v. Mutual Life Ins. Co.
of New York, 166 Or. 515, 113 P.2d 621, 624; and by "al-.
lowing bail" or "admitting to bail" is not meant the
formal justification, subscription, or acknowledgment by
the sureties, the term first mentioned relating to the order
determining that the offense is bailable and fixing the
amount of undertaking, and "taking the bail': meaning the
final acceptance or approval of it by the court. Clatsop
County v. Wuopio, 95 Or. 30, 186 P. 547.
English Ecclesiastical Law
The act of the bishop, who, on approval of the
clerk presented by the patron, after examination,
declares him fit to serve the cure of the church
to which he is presented, by the words "admitto
to habilem," I admit thee able. 1 Crabb, Real
Prop. p. 138, § 123.
Immigration Laws
Authorities accepting alien seaman into body of
our inhabitants as possible resident. U. S. ex rel.
Georgas v. Day, C.C.A.N.Y., 43 F.2d 917, 919.
Membership in Corporation
The act of a corporation or company by which
an individual acquires the rights of a member of
such corporation or company.
Practice as Attorney at Law
The act by which attorneys and counsellors be-
come recognized as officers of the court and are
allowed to practice.
Testimony or Evidence
Admission or concession by a party in pleading
or as evidence. See Admissions.
ADMISSIONALIS. In European law. An usher.
Spelman.
ADMISSIONS. Confessions, concessions or volun-
tary acknowledgments made by a party of the
existence of certain facts. Roosevelt v. Smith, 40
N.Y.S. 381, 17 Misc. 323. More accurately regard-
ed, they are statements by a party, or some one
identified with him in legal interest, of the ex-
istence of a fact which is relevant to the cause of
his adversary. Brooks v. Sessoms, 171 S.E. 222,
223, 47 Ga.App. 554. They are against the interest
of the party making them. Little Fay Oil Co. v.
Stanley, 90 Okl. 265, 217 P. 377, 378.
It is not essential that an "admission" be contrary to
interest of party at time it is made; it is enough if it be
inconsistent with position which party takes either in
pleadings or at trial. Harvey v. Provandie, 83 N.H. 236,
141 A. 136, 140.
The term "admission" is usually applied to civil trans-
actions and to those matters of fact in criminal cases which
do not involve criminal intent, while the term "confession"
is generally restricted to acknowledgments of guilt. Peo-
ple v. Sourisseau, 62 Cal.App.2d 917, 145 P.2d 916, 923.
State v. Lindsey, 26 N.M. 526, 194 P. 877, 878.
An "admission" as applied in criminal cases is
the avowal of a fact or of circumstances from
which guilt may be inferred, but only tending to
prove the offense charged, and not amounting to
a confession of guilt. Theis v. State, Ga., 164 S.
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ADM'R
E. 456, 457. A statement by defendant. of fact or
facts pertinent to issues tending, in connection
with proof of other facts or circumstances, to
prove guilt, but which is, of itself, insufficient to
authorize conviction. Commonwealth v. Elliott,
292 Pa. 16, 140 A. 537, 538. Does not include
statements which are part of the res gestw. State
v. Clark, 102 Mont. 432, 58 P.2d 276, 278.
Direct, called also express, admissions are those which
are made in direct terms.
Implied admissions are those which result from some act
or failure to act of the party. Part payment of a debt is an
admission of liability to pay debt. Hart v. Deshong, Del.,
1 Terry 218, 8 A.2d 85, 87. Defendants' failure to specifi-
cally deny their signatures to notes, "admission" that they
signed the acknowledgments. Haas v. Johnson, 203 La.
697, 14 So.2d 606, 608. Undenied accusations were implied
"admission". State v. Postal, 215 Minn. 427, 10 N.W.2d
373, 378.
Incidental admissions are those made in some other con-
nection, or involved in the admission of some other fact.
Judicial admissions are those made in court by a per-
son's attorney for the purpose of being used as a substitute
for the regular legal evidence of the facts at the trial.
Martin v. State, 46 Okl.Cr. 411, 287 P. 424. Such as are
made voluntarily by a party, which appear of record in the
proceedings of the court. Formal acts done by a party or
his attorney in court on the trial of a cause for the purpose
of dispensing with proof by the opposing party of some
fact claimed by the latter to be true. Wiley v. Rutland R.
Co., 86 Vt. 504, 86 A. 808, 810. Concession by defendant
that she had executed a bill of sale for the automobile to
intervener to secure an indebtedness was an "admission
in judicio" by defendant against her title to the automo-
bile. McDay v. Long, 63 Ga.App. 421, 11 S.E.2d 395, 399.
But opening statements of counsel are not, technically,
"admissions." Wilkey v. State ex rel. Smith, 238 Ala. 595,
192 So. 588, 591. See Acquiescence; Quasi-Admissions;
True Admission.
Pleading
The acknowledgment or recognition by one par-
ty of the truth of some matter alleged by the
opposite party, made in a pleading, the effect of
which is to narrow the area of facts or allegations
required to be proved by evidence. Connecticut
Hospital v. Brookfield, 69 Conn. 1, 36 A. 1017.
An allegation not denied is deemed not controverted, and
silence of pleader is usually treated as an admission
against him for purpose of the action. Doughty v. Pallis-
sard, 3 N.Y.S.2d 452, 453, 167 Misc. 55. Generally plead-
ings must be regarded as "judicial admissions", rather
than ordinary "admissions". Hughes v. Fort Worth Nat.
Bank, Tex.Civ.App., 164 S.W.2d 231, 232.
In confession and avoidance, admission of truth of op-
posite party's pleading is made.
Express admissions may be made of matters of fact only.
See Confession and Avoidance.
In Equity. Partial admissions are those which are de-
livered in terms of uncertainty, mixed up with explanatory
or qualifying circumstances.
Plenary admissions are those which admit the truth of
the matter without qualification, whether it be asserted
as from information and belief or as from actual knowl-
edge. See Burrell v. Hackley, C.C.N.Y., 35 F. 833.
"Admissions against interest" are any state-
ments made by or attributable to a party to an
action, which constitute admissions against his
interest and tend to establish or disprove any ma-
terial fact in the case. Kellner v. Whaley, 148
Neb. 259, 27 N.W.2d 183, 189.
ADMIT. To allow, receive, or take; to suffer one
to enter; to give possession; to license. Gregory
v. United States, 17 Blatchf. 325, 10 Fed.Cas. 1195.
Confess. Provident Life & Accident Ins. Co. v.
Fodder, 99 Ind.App. 556, 193 N.E. 698, 700. Un-
equivocal acknowledgment of guilt. Ex parte
Tozier, D.C.Me., 2 F.2d 268, 269. See Admission;
Admissions.
ADMITTANCE. In English law, the act of giving
possession of a copyhold estate. It is of three
kinds: (1) Upon a voluntary grant by the lord,
where the land has escheated or reverted to him.
(2) Upon surrender by the former tenant. (3)
Upon descent, where the heir is tenant on his
ancestor's death. 2 Bla.Comm. 366.
ADMITTENDO CLERICO. An old English writ
issuing to the bishop to establish the right of the
Crown to make a presentation to a benefice. A
writ of execution upon a right of presentation to a
benefice being recovered in quare impedit, ad-
dressed to the bishop or his metropolitan, requir-
ing him to admit and institute the clerk or pre-
sentee of the plaintiff. Reg.Orig. 33a.
ADMITTENDO IN SOCIUM. A writ for asso-
ciating certain persons, as knights and other
gentlemen of the county, to justices of assize on
the circuit. Reg.Orig. 206.
ADMIXTURE. A substance formed by mixing;
state of being mixed; act of mixing.
ADMONISH. To caution or advise. People v.
Pennington, 267 Ill. 45, 10 7 N.E. 871, 872. To
counsel against wrong practices, or to warn
against danger of an offense. Ft. Smith Light &
Traction Co. v. Hendrickson, 126 Ark. 377, 189 S.
W. 1064, 1067.
ADMONITION. A reprimand from a judge to a
person accused, on being discharged, warning him
of the consequences of his conduct, and intimating
to him that, should he be guilty of the same fault
for which he has been admonished, he will be
punished with greater severity. Merlin, Repert.
The admonition was authorized as a species of
punishment for slight misdemeanors. In eccle-
siastical law, this is the lightest form of punish-
ment.
Any authoritative oral communication or state-
ment by way of advice or caution by the court to
the jury respecting their duty or conduct as jurors;
the admissibility or nonadmissibility of evidence,
or the purpose for which any evidence admitted
may be considered by them. Miller v. Noell, 193
Ky. 659, 237 S.W. 373, 374.
ADMONITIO TRINA. The threefold warning
given to a 'prisoner who stood mute, before he
was subjected to peine forte et dure (q. v.). 4
Bl.Comm. 325; 4 Steph.Comm. 391.
ADMORTIZATION. The reduction of property of
lands or tenements to mortmain, in the feudal
customs.
ADM'R. Ths abbreviation will be judicially pre-
sumed to mean "administrator." Moseley v. Mas-
tin, 37 Ala. 216, 221.
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ADNEPOS
ADNEPOS. The son of a great-great-grandson.
Calvinus, Lex.
ADNEPTIS. The daughter of a great-great-grand-
daughter. Calvinus, Lex.
ADNICHILED. Annulled, canceled, made void.
28 Hen. VIII.
ADNLHILARE. In old English law, to annul; to
make void; to reduce to nothing; to treat as
nothing; to hold as or for nought.
ADNOTATIO. In the civil law, the subscription
of a name or signature to an instrument. Cod. 4,
19, 5, 7.
A rescript (q. v.) of the prince or emperor, signed with
his own hand, or sign-manual. Cod. 1, 19, 1. "In the im-
perial law, casual homicide was excused by the indulgence
of the emperor, signed with his own .sign-manual, annota-
tione principis." 4 Bl.Comm. 187.
ADOBE. Earth. In arid or desert regions, an
alluvial or playa clay from which bricks are made
for construction of houses, called "adobe" houses.
See Sweeney v. Jackson County, 93 Or. 96, 178 P.
365, 376.
ADOLESCENCE. That age which follows puberty
and precedes the age of majority. It commences
for males at fourteen, and for females at twelve
years, and continues until twenty-one years com-
plete.
ADOPT. To accept, appropriate, choose, or select;
to make that one's own (property or act) which
was not so originally.
To adopt a route for the transportation of the mail
means to take the steps necessary to cause the mail to be
transported over that route. Rhodes v. U. S., Dev.Ct.C1.
47. To adopt a contract is to accept it as binding, notwith-
standing some defect which entitles the party to repudiate
it. Thus, when a person affirms a voidable contract, or
ratifies a contract made by his agent beyond his authority,
he is sometimes said to adopt it. Sweet. Strictly, how-
ever, the word "adopt" should be used to apply to void
transactions, while the word "ratify" should be limited to
the final approval of a voidable transaction by one who
theretofore had the optional right to relieve himself from
its obligations. United German Silver Co. v. Bronson, 92
Conn. 266, 102 A. 647, 648. "Adoption" of a contract by one
not a party thereto is of the nature of a novation. Edwards
v. Heralds of Liberty, 263 Pa. 548, 107 A. 324, 326. See Af-
firm.
To accept, consent to, and put into effective op-
eration; as in the case of a constitution, constitu-
tional amendment, ordinance, or by-law. Real v.
People, 42 N.Y. 282; People v. Norton, 59 Barb.
(N.Y.) 191. A Code. City of Albany v. Nix, 21
Ala.App. 164, 106 So. 199, 200. Statements in an
application appearing above insured's signature.
Republic Mut. Ins. Co. v. Wilson, 66 Ohio App.. 522,
35 N.E.2d 467, 468.
To take into one's family the child of another
and give him or her the rights, privileges, and
duties of a child and heir. State v. Thompson,
13 La.Ann. 515; Abney v. De Loach, 84 Ala. 393.
Adoption of children was a thing unknown to the com-
mon law, but was a familiar practice under the Roman law
and in those countries where the civil law prevails, as
France and Spain. Butterfield v. Sawyer, 187 Ill. 598, 58
N.E. 602, 52 L.R.A. 75, 79 Am.St.Rep. 246. Creature of the
law, and statutory requirements must be strictly carried
out. Owles v. Jackson, 199 La. 940, 7 So.2d 192, 194.
To accept an alien as a citizen or member of a
community or state and invest him with corres-
ponding rights and privileges, either (in general
and untechnical parlance) by naturalization, or
by an act equivalent to naturalization, as where
a white man is "adopted" by an Indian tribe.
Hampton v. Mays, 4 Ind.T. 503, 69 S.W. 1115.
ADOPTION. The taking and receiving as one's
own that to which he bore no prior relation, color-
able or otherwise. Davies v. Lahann, C.C.A.N.M.,
145 F.2d 656, 659. The act of one who takes an-
other's child into his own family, treating him as
his own, and giving him all the rights and duties
of his own child. See In re Chambers' Estate, 183
N.Y.S. 526, 528, 112 Misc. 551. sin manner provided
by and with consequences specified in statute.
Fisher v. Robison, 329 Pa. 305, 198 A. 81, 82. A.
juridicial act creating between two persons cer-
tain relations, purely civil, of paternity and filia-
tion. 6 Demol. § 1; Grimes v. Grimes, 207 N.C.
778, 178 S.E. 573. The relation thereby created is
a statutory status, not a contractual relation.
Caruso v. Caruso, 13 N.Y.S.2d 239, 241, 175 Misc.
290. Though legal adoption may confer on per-
son adopted rights of actual relationship of child,
simple "adoption" extends only to his treatment
as member of the household. Shepherd v. Sov-
ereign Camp, W.O.W., 166 Va. 488, 186 S.E. 113,
116. See, also, Adopt.
Adoption, properly speaking, refers only to persons who
are strangers in blood, In re Lund's Estate, Cal.App., 148
P.2d 709, 711. And is not synonymous with "legitimation,"
which refers to persons of the same blood. Blythe v.
Ayres, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40. But this dis-
tinction is not always observed. In re Presly's Estate, 113
Okl. 160, 240 P. 89, 90. It is a relationship artificially cre-
ated by statute. Borner v. Larson, 70 N. D. 313, 293 N.W.
836, 839.
ADOPTION BY PUBLIC ACKNOWLEDGMENT.
See Legitimate.
ADOPTIVE ACT. An act of legislation which
comes into operation within a limited area upon
being adopted, in manner prescribed therein, by
the inhabitants of that area.
ADOPTIVUS. Lat. Adoptive. Applied both to
the parent adopting, and the child adopted. Inst.
2, 13, 4; Inst. 3, 1, 10-14.
ADPROMISSOR. In the civil and Scotch law, a
guarantor, surety, or cautioner; a peculiar species
of fidejussor; one who adds his own promise to
the promise given by the-principal debtor, whence
the name.
ADQUIETO. Payment. Blount.
ADRECTARE. To set right, satisfy, or make
amends.
ADRHAMIRE. In old European law, to under-
take, declare, or promise solemnly; to pledge; to
pledge one's self to make oath. Spelman.
ADRIFT. Sea-weed, between high and low water-
mark, which has not been deposited on the shore,
and which during flood-tide is moved by each ris-
ing and receding wave, is adrift, although the
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bottom of the mass may touch the beach. An-
thony v. Gifford, 2 Allen (Mass.) 549.
ADROGATION. In the civil law, the adoption of
one who was impubes; that is, if a male, under
fourteen years of age; if a female, under twelve.
Dig. 1, 7, 17, 1.
ADS. An abbreviation for ad sectam (q. v.),
meaning "at the suit of." Bowen v. Sewing Mach.
Co., 86 Ill. 11.
ADSCENDENTES. Lat. In the civil law, ascend-
ants. Dig. 23, 2, 68; Cod. 5, 5, 6.
ADSCRIPTI. See Adscriptus.
ADSCRIPTI GLEBIE. Slaves who served the
master of the soil, who were annexed to the land,
and passed with it when it was conveyed. Cal-
vinus, Lex.
In Scotland, as late as the reign of George III., laborers
in collieries and salt works were bound to the coal-pit or
salt work in which they were engaged, in a manner similar
to that of the adscripti of the Romans. Bell. These servi
adscripti (or adscriptitii) glebce held the same position as
the villeins regardant of the Normans; 2 Bla.Com. 93. See
1 Poll. & Mait. 372.
ADSCRIPTITII. Lat. A species of serfs or
slaves. See 1 Poll. & Mait. 372.
Those persons who were enrolled and liable to
be drafted as legionary soldiers. Calvinus, Lex.
ADSCRIPTUS. In the civil law, added, annexed,
or bound by or in writing; enrolled, registered;
united, joined, annexed, bound to, generally. Ser-
vus colonce adscriptus, a slave annexed to an es-
tate as a cultivator. Dig. 19, 2, 54, 2. Fundus
adscriptus, an estate bound to, or burdened with
a duty. Cod. 11, 2, 3.
ADSESSORES. Side judges. Assistants or ad-
visers of the regular magistrates, or appointed as
their substitutes in certain cases. Calvinus, Lex.
See Assessor.
ADSTIPULATOR. In Roman law, an accessory
party to a promise, who received the same prom-
ise as his principal did, and could equally receive
and exact payment; or he only stipulated for a
part of that for which the principal stipulated,
and then his rights were coextensive with the
amount of his own stipulation. One who supplied
the place of a procurator at a time when the law
refused to allow stipulations to be made by pro-
curation. Sandars, Just.Inst. (5th Ed.) 348.
ADULT.
Civil Law
A male infant who has attained the age of four-
teen; a female infant who has attained the age
of twelve. Dom.Liv.Prel. tit. 2, § 2, n. 8.
Common Law
One who has attained the legal age of majority,
generally 21 years, though in some states women
are legally "adults" at 18. Schenault v. State,
10 Tex.App. 410; Lucas v. United States Fidelity
& Guaranty Co., 174 A. 712, 713, 113 N.J.Law, 491.
ADULTER. Lat. One who corrupts; one who
seduces another man's wife. Adulter solidorum.
A corruptor of metals; a counterfeiter. Calvinus,
Lex.
ADULTERA. In the civil law, an adulteress; a
woman guilty of adultery. Dig. 48, 5, 4, pr.; Dig.
48, 5, 15, 8.
ADULTERATION. The act of corrupting or de-
basing; the act of mixing something impure or
spurious with something pure or genuine, or an
inferior article with a superior one of the same
kind. State v. Norton, 24 N.C. 40. The term is
generally applied to the act of mixing up with
food or drink intended to be sold other matters of
an inferior quality, and usually of a more or less
deleterious quality. Grosvenor v. Duffy, 121 Mich.
220, 80 N.W. 19, though the artificially colored
poppy seeds were not deleterious and had the
same food value as the naturally colored seeds.
U. S. v. Two Bags, Each Containing 110 Pounds,
Poppy Seeds, C.C.A.Ohio, 147 F.2d 123, 127.
ADULTERATOR, Lat. A corrupter. In the civil
law. A forger; a counterfeiter. Adulteratores
monetce, counterfeiters of money. Dig. 48, 19,
16, 9.
ADULTERINE. Begotten in an adulterous inter-
couite. Those are not deemed adulterine who are
begotten,of a woman openly married through ig-
norance of a former wife being alive. In the
Roman and canon law, adulterine bastards were
distinguished from such as were the issue of two
unmarried persons, and the former were treated
with more severity, not being allowed the status
of natural children, and being ineligible to holy
orders.
ADULTERINE BASTARDS. The offspring of
adulterous relations. Kotzke v. Kotzke's Estate,
205 Mich. 184, 171 N.W. 442, 443. See, also, Adul-
terous Bastards.
ADULTERINE GUILDS. Traders acting as a
corporation without a charter, and paying a fine
annually for permission to exercise their usurped
privileges. Smith, Wealth Nat. b. 1, c. 10.
ADULTERIUM. A fine anciently imposed for the
commission of adultery.
ADULTEROUS BASTARDS. Those produced by
an unlawful connection between two persons, who
at the time when the child was conceived, were,
either of them or both, connected by marriage
with some other person. Civil Code La. art. 182.
ADULTERY. Voluntary sexual intercourse of a
married person with a person other than the of-
fender's husband or wife. Franzetti v. Franzetti,
Tex.Civ.App., 120 S.W.2d 123, 127.
In some states, however, as was also true under the Ro-
man and Jewish law, this crime is committed only when
the woman is married to a third person ; the unlawful com-
merce of a married man with an unmarried woman not
being of the grade of adultery. Corn. v. Call, 21 Pick.
Mass. 509, 32 Am.Dec. 284, and note; Com. v. Elwell, 2
Metc. 190, 39 Am.Dec. 398. In other jurisdictions, both
parties are guilty of adultery, even though only one of
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them is married. Goodwin v. State, 70 Tex.Cr.R. 600, 158
S.W. 274, 275. In some jurisdictions, also, a distinction is
made between double and single adultery, the former being
committed where both parties are married to other per-
sons, the latter where one only is so married. Hunter v.
U. S., 1 Pin.Wis. 91, 39 Am. Dec. 277.
Open and Notorious Adultery
To constitute living in open and notorious adul-
tery, the parties must reside together publicly in
the face of society, as if conjugal relations existed
between them, and their so living and the fact
that they are not husband and wife must be
known in the community. McCullough v. State,
107 Tex.Cr.R. 258, 296 S.W. 530.
ADVANCE, v. To pay money or render other
value before it is due; to furnish something be-
fore an equivalent is received; to loan; to furnish
capital in aid of a projected enterprise, in expecta-
tion of return from it. Powell v. Allan, 70 Cal.
App. 663, 234 P. 339, 344. To supply beforehand;
to furnish on credit or before goods are delivered
or work done; to furnish as a part of a stock or
fund; to pay money before it is due; to furnish
money for a specific purpose understood between
the parties, the money or sum equivalent to be
returned; furnishing money or goods for others
in expectation of reimbursement; money or com-
modities furnished on credit; a loan, or gift or
money advanced to be repaid conditionally; may.
be equivalent to "pay." In re Altman's Will, Sur.,
6 N.Y.S.2d 972, 975.
An agreement to "advance" money for personal property
implies a loan with property as pledge, rather than a pay-
ment of purchase money in sale. Shelley v. Byers, 73 Cal.
App. 44, 238 P. 177, 182.
ADVANCE PAYMENT. Payments made in an-
ticipation of a contingent or fixed future liability.
Smith v. Unity Industrial Life Ins. Co., La.App.,
13 So.2d 129, 132.
ADVANCEMENT. Money or property given by
a parent to his child or, sometimes, presumptive
heir, or expended by the former for the latter's
benefit, by way of anticipation of the share which
the child will inherit in the parent's estate and
intended to be deducted therefrom. It is the lat-
ter circumstance which differentiates an advance-
ment from a gift or a loan. Brewer's Adm'r v.
Brewer, 181 Ky. 400, 205 S.W. 393, 396; In re
Allen's Estate, 207 Pa. 325, 56 A. 928.
A perfect and irrevocable gift, In re Wiese's Estate, 222
Iowa 935, 270 N.W. 380, 382. Passing title in lifetime of
donor, Burkhart v. Lowery, 115 Ind.App. 445, 59 N.E.2d
732, 734; but which must be accounted for by donee on
distribution of donor's estate. In re Beier's Estate, 205
Minn. 43, 284 N.W. 833, 835, 836, 837, 838. "Advancement,"
unlike "ademption" (q. v.), applies only to cases of in-
testacy. Ellard v. Ferris, 91 Ohio St. 339, 110 N.E. 476, 479.
An "advancement by portion," within the meaning of the
statute, is a sum given by a parent to establish a child in
life, (as by starting him in business,) or to make a provi-
sion for the child, (as on the marriage of a daughter). L.
R. 20 Eq. 155. See Ademption; Gift.
ADVANCES. Moneys paid before or in advance
of the proper time of payment; money or com-
modities furnished on credit; a loan or gift, or
money advanced to be repaid conditionally. Pow-
der Co. v. Burkhardt, 97 U.S. 110, 24 L.Ed. 973.
This word, when taken in its strict legal sense, does not
mean gifts, (advancements,) and does mean a sort of loan;
and, when taken in its ordinary and usual sense, it in-
cludes both loans and gifts,—loans more readily, perhaps,
than gifts. Landrum & Co. v. Wright, 11 Ala.App. 406, 66
So. 892.
Payments advanced to the owner of property
by a factor or broker on the price of goods which
the latter has in his hands, or is to receive, for
sale.
"Loans" are repayable at maturity, while "advances"
are not repaid by party receiving them, but are covered
by proceeds of consigned goods. People ex rel. James Tal-
bott, Inc., v. Goldfogle, 211 N.Y.S. 122, 123, 213 App.Div.
719.
ADVANTAGE. Any state, condition, circum-
stance, opportunity, or means specially favorable
to success, prosperity, interest, reputation, or any
desired end. Duvall v. State, 92 Ind.App. 134,
166 N.E. 603, 604. Preference or priority. United
States v. Preston, 4 Wash. 446, Fed.Cas.No.16,087.
ADVANTAGIUM. In old pleading, an advan-
tage. Co.Ent. 484; Townsh.P1. 50.
ADVENA. In Roman law, one of foreign birth,
who has left his own country and settled else-
where, and who has not acquired citizenship in
his new locality; often called albanus. Du
Cange.
ADVENT. A period of time recognized by the
English common and ecclesiastical law, beginning
on the Sunday that falls either upon St. Andrew's
day, being the 30th of November, or the next to
it, and continuing to Christmas day. Wharton.
ADVENTITIOUS. That which comes incidental-
ly, fortuitously, or out of the regular course.
"Adventitious value" of lands, see Central R.
Co. v. State Board of Assessors, 49 N.J.Law, 1, 7
A. 306.
ADVENTITIUS. Lat. Fortuitous; incidental;
coming from an unusual source. Adventitia bona
are goods which fall to a man otherwise than by
inheritance. Adventitia dos is a dowry or portion
given by some friend other than the parent.
ADVENTURA. An adventure. 2 Mon.Angl. 615;
Townsh.Pl. 50. Flotson, jetson, and lagon are
styled adventurce maris, (adventures of the sea.)
Hale, De Jure Mar. pt. 1, c. 7.
ADVENTURE. A hazardous and striking enter-
prise, a bold undertaking in which hazards are to
be met and issue hangs upon unforeseen events.
Bond v. O'Donnell, 205 Iowa, 902, 218 N.W. 898,
902, 63 A.L.R. 901.
Generally
Adventure, bill of. In mercantile law, a writing
signed by a merchant, stating that the property
in goods shipped in his name belongs to another,
to the adventure or chance of which the person
so named is to stand, with a covenant from the
merchant to account to him for the produce.
Gross adventure. In maritime law, a loan on
bottomry. So named because the lender, in case
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ADVERSE
of a loss, or expense incurred for the common
safety, must contribute to the gross or general
average.
Joint adventure. A commercial or maritime en-
terprise undertaken by 'several persons jointly;
a limited partnership,—not limited in the statu-
tory sense as to the liability of the partners, but
as to its scope and duration. Lobsitz v. E. Liss-
berger Co., 168 App.Div. 840, 154 N.Y.S. 556, 557.
A special partnership. McDaniel v. State Fair of
Texas, Tex.Civ.App., 286 S.W. 513, 517. An as-
sociation of two or more persons to carry out a
single business enterprise for profit, for which
purpose they combine their property, money, ef-
fects, skill, and knowledge. Forman v. Lumm,
214 App.Div. 579, 212 N.Y.S. 487. A special com-
bination of two or more persons, where, in some
specific adventure, a profit is jointly sought, with-
out any actual partnership or corporate designa-
tion. Griffin v. Reilly, Tex.Civ.App., 275 S.W. 242,
246.
It is ordinarily, but not necessarily, limited to a single
transaction, Forbes v. Butler, 66 Utah, 373, 242 P. 950, 956,
which serves to distinguish it from a partnership, Barry
v. Kern, 184 Wis. 266, 199 N.W. 77, 78. But the business of
conducting it to a successful termination may continue for
a number of years. Elliott v. Murphy Timber Co., 117 Or.
387, 244 P. 91, 93, 48 A.L.R. 1043. There is no real dis-
tinction between a "joint adventure" and what is termed
a "partnership for a single transaction." Atlas Realty Co.
v. Galt, 153 Md. 586, 139 A. 285, 286. A "joint adventure,"
while not identical with a partnership, is so similar in its
nature and in the relations created thereby that the rights
of the parties as between themselves are governed practi-
cally by the same rules that govern partnerships. Goss v.
Lanin, 170 Iowa 57, 152 N.W. 43, 45.
Marine Insurance
A very usual word in policies of marine insur-
ance, and everywhere used as synonymous, or
nearly so, with "perils." It is often used by the
writers to describe the enterprise or voyage as a
"marine adventure" insured against. Moores v.
Louisville Underwriters, C.C.Tenn., 14 Fed. 233.
Mercantile Law
Sending goods abroad under charge of a super-
cargo or other agent, at the risk of the sender,
to be disposed of to the best advantage for the
benefit of the owners.
The goods themselves so sent.
ADVENTURER. One who undertakes uncertain
or hazardous actions or enterprises. It is also
used to denote one who seeks to advance his
own interests by unscrupulous designs on the
credulity of others. It has been held that to im-
pute that a person is an adventurer is a libel; 18
L.J.C.P. 241.
ADVERSARIA. (From Lat. adversa, things re-
marked or ready at hand.) Rough memoranda,
common-place books.
ADVERSARY. A litigant-opponent, the opposite
party in a writ or action.
ADVERSARY PROCEEDING. One having oppos-
ing parties; contested, as distinguished from an
ex parte application; one of which the party
seeking relief has given legal warning to the oth-
er party, and afforded the latter an opportunity
to contest it. Excludes an adoption proceeding.
Platt v. Magagnini, 187 P. 716, 718, 110 Wash.
39.
ADVERSE. Opposed; contrary; in resistance or
opposition to a claim, application, or proceeding.
Having opposing interests; having interests for
the preservation of which opposition is essential.
In re National Lock Co., D.C.Ill., 9 F.Slipp. 432,
433.
As to adverse "Claim," "Enjoyment," "User,"
"Verdict," "Witness," see those titles.
ADVERSE INTEREST. The "adverse interest"
of a witness, so as to permit cross-examination by
the party calling him, must be so involved in the
event of the suit that a legal right or liability will
be acquired, lost, or materially affected by the
judgment, and must be such as would be pro-
moted by the success of the adversary of the par-
ty calling him. Dinger v. Friedman, 279 Pa. 8,
123 A. 641, 643. On petition in bankruptcy court
for removal of trustee's attorney, attorney has an
interest adverse to trustee. In re Mallow Hotel
Corporation, D.C.Pa., 18 F.Supp. 15, 17.
ADVERSE PARTY. An "adverse party" entitled
to notice of appeal is every party whose interest
in relation to the judgment or decree appealed
from is in conflict with the modification or rever-
sal sought by the appeal.
Every party interested in sustaining the judgment or
decree. Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909.
All parties appearing against losing party unless reversal
of case will not be to party's detriment. Shea v. Shea,
Iowa, 264 N.W. 590. Any party who would be prejudi-
cially affected by a modification or reversal of the judg-
ment appealed from. Great Falls Nat. Bank v. Young, 67
Mont. 328, 215 P. 651, 652. One who has interest in oppos-
ing object sought to be accomplished by appeal. In re
Baxter's Estate, 94 Mont. 257, 22 P.2d 182. Party to rec-
ord, whose interest in subject-matter of appeal is adverse
to, reversal or modification of judgment or order appealed
from. MacDonald v. Superior Court in and for City and
County of San Francisco, 101 Cal.App. 423, 281 P. 672, 673.
A party who, by the pleadings, is arrayed on the opposite
side. Merrill v. St. Paul City Ry. Co., 170 Minn. 332, 212
N.W. 533. The other party to the action. Highland v.
Hines, 80 N.H. 179, 116 A. 347, 349. A party to the record
for, or against, whom judgment is sought. Merchants'
Supply Co. v. Hughes' Ex'rs, 139 Va. 212, 123 S.E. 355, 356.
"Opposite" party synonymous. In re Wah-shah-she-me-
tsa-he's Estate, 111 Okl. 177, 239 P. 177, 178. And term is
not necessarily confined to plaintiffs as against defendants,
or vice versa. Arwood v. Hill's Adm'rs, 135 Va. 235, 117
S.E. 603, 605.  But a defaulting defendant is not an
"adverse party" ; Holt v. Empey, 32 Idaho, 106, 178 P.
703; nor is one who is named as a party but is not served;
Kissler v. Moss, 26 Idaho, 516, 144 P. 647. Compare Fer-
gen v. Lonie, 50 S.D. 328, 210 N.W. 102, 103 (garnishment
debtor not served in garnishment proceeding).
ADVERSE POSSESSION. A method of acquisi-
tion of title by possession for a statutory period
under certain conditions. Lowery v. Garfield
County, Mont., 208 P.2d 478, 486. It has been de-
scribed as the statutory method of acquiring title
to land by limitation. Field v. Sosby, Tex.Civ.
App., 226 S.W.2d 484, 486.
The possession must be actual, Ortiz v. Pacific
States Properties, Cal.App., 215 P.2d 514, 516;
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ADVERSE
adverse, Flanery v. Greene, 158 S.W.2d 413, 415,
289 Ky. 244; under claim of right, Thomas v.
Durchslag, Ill., 90 N.E.2d 200, 204, 404 Ill. 581;
continuous, Davis v. Federal Land Bank of Col-
umbia, 13 S.E.2d 417, 419, 219 N.Car. 248; open
Wilberforce University v. College of Ed. and
Indus. Arts at Wilberforce University, 90 N.E.2d
172, 173, 86 Ohio App. 121; notorious, Edie v.
Coleman, 141 S.W.2d 238, 242, 243, 235 Mo.App.
1289; exclusive, Laudati v. State, 30 N.Y.S.2d 267,
270, and -hostile, Singley v. Dempsey, 42 So.2d 609,
612, 252 Ala. 677. Although color of title is not
essential, Roesch v. Gerst, 138 P.2d 846, 851, 852,
18 Wash.2d 294, it is of great evidentiary value
in establishing adverse possession, Lincoln v.
Mills, 2 So.2d 809, 811, 191 Miss. 512.
Adverse possession depends on intent of occu-
pant to claim and hold real property in opposition
to all the world, Sertic v. Roberts, 136 P.2d 248,
171 Ore. 121; and also embodies the idea that own-
er of or persons interested in property have knowl-
edge of the assertion of ownership by the occu-
pant, Field v. Sosby, Tex.Civ.App., 226 S.W.2d 484,
486.
Payment of taxes alone is not sufficient in it-
self to establish adverse possession, Blitch v.
Sapp, 194 So. 328, 330, 142 Fla. 166. It is manda-
tory that the element of continuous possession
exist for the full statutory period, Wells v. Tietge,
9 N.W.2d 180, 182, 143 Neb. 230.
ADVERSUS. In the civil law, against, (contra.)
Adversus bonos mores, against good morals. Dig.
47, 10, 15.
Adversus extraneos vitiosa possessio prodesse
solet. Prior possession is a good title of owner-
ship against all who cannot show a better. D.
41. 2. 53; Salmond, Jurispr. 638.
ADVERTISE. To give notice to, inform or notify,
give public notice of, announce publicly, notice
or observe. People v. Hopkins, 263 N.Y.S. 290,
147 Misc. 12. To advise, announce, apprise, com-
mand, give notice of, inform, make known, pub-
lish. People v. Montague, 274 N.W. 347, 351, 280
Mich. 610. On call to the public attention by any
means whatsoever; Commonwealth v. Allison,
227 Mass. 57, 116 N.E. 265, 266.
It includes publication by hand bills, signs, bill boards,
sound trucks and radio, Rust v. Missouri Dental Board,
348 Mo. 616, 155 S.W.2d 80, 83; or in a newspaper, or by
means of placards, or other written public notices ; Nichols
v. Nichols, 192 Ala. 206, 68 So. 186, 187. It is merely iden-
tification and description, apprising of quality and place,
Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370,
377, 60 L.Ed. 679. And "advertising purposes" are not
limited to matters of vocation, or even avocation, but
include advertisements essentially for unselfish purposes,
Almind v. Sea Beach Ry. Co., 141 N.Y.S. 842, 843, 157
App.Div. 230.
ADVERTISEMENT. Notice given in a manner
designed to attract public attention. Edwards v.
Lubbock County, Tex., 33 S.W.2d 482, 484. Infor-
mation communicated to the public, or to an in-
dividual concerned, as by handbills or the news-
paper. First Nat. Corporation v. Perrine, 99
Mont. 454, 43 P.2d 1073, 1077.
A sign-board, erected at a person's place of business,
giving notice that lottery tickets are for sale, Com. v.
Hooper, 5 Pick.Mass. 42.
ADVERTISEMENTS OF QUEEN ELIZABETH.
Certain articles or ordinances drawn up by Arch-
bishop Parker and some of the bishops in 1564, at
the request of Queen Elizabeth, the object of
which was to enforce decency and uniformity in
the ritual of the church. The queen subsequently
refused to give her official sanction to these ad-
vertisements, and left them to be enforced by the
bishops under their general powers. Phillim.Ecc.
Law, 910; 2 Prob.Div. 276; 354.
ADVICE. View; opinion; the counsel given by
lawyers to their clients; an opinion expressed as
to wisdom of future conduct. Hughes v. Van
Bruggen, 44 N.M. 534, 105 P.2d 494, 496.
The word has several different meanings, among others,
as follows : Information or notice given; intelligence ;—
usually information communicated by letter ;—Chiefly as
to drafts or bills of exchange ; as, a letter of advice.—
Advice implies real or pretended knowledge, often pro-
fessional or technical, on the part of the one who gives it.
Provident Trust Co. v. National Surety Co., D.C.Pa., 44
F.Supp. 514, 515.
The instruction usually given by one merchant
or banker to another by letter, informing him of
shipments made to him, or of bills or „drafts
drawn on him, with particulars of date, or sight,
the sum, and the payee. Bills presented for ac-
ceptance or payment are frequently dishonored
for want of advice.
Letter of advice is a communication from one person to
another, advising or warning the latter of something which
he ought to know, and commonly apprising him before-
hand of some act done by the writer which will ultimately
affect the recipient. Chit. Bills, 162.
ADVISARE, ADVISARI. Lat. To consult, delib-
erate, consider, advise; to be advised. Occurring
in the phrase curia advisari 4vult, which see (usu-
ally abbreviated cur. adv. vu/t, or C. A. V.,) the
court wishes to be advised, or to consider of the
matter.
ADVISE. To give an opinion or counsel, or rec-
ommend a plan or course of action; also to give
notice. Long v. State, 23 Neb. 33, 36 N.W. 310.
To encourage. Voris v. People, 75 Colo. 574, 227
P. 551, 553. "Inform" or "acquaint." Ericson v.
Steiner, 119 Cal.App. 305, 6 P.2d 298, 300.
It is different in meaning from "instruct" or "persuade."
Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, 497.
Where a statute authorizes the trial court to advise the
jury to acquit, the court has no power to instruct the jury
to acquit. The court can only counsel, and the jury are
not bound by the advice. People v. Horn, 70 Cal. 17, 11 P.
470. "Advise" imports that it is discretionary or optional
with the person addressed whether he will act on such
advice or not. State v. Downing, 23 Idaho, 540, 130 P. 461,
462.
ADVISED. Prepared to give judgment, after ex-
amination and deliberation. "The court took time
to be advised." 1 Leon. 187.
ADVISEDLY. With deliberation; intentionally.
15 Moore P.C. 147.
ADVISEMENT. Consideration; deliberation;
consultation. Drainage Dist. No. 1 of Lincoln
•
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ADVOCATOR
County v. Suburban Irr. Dist., 139 Neb. 460, 298
N.W. 131, 134. The consultation of a court, after
the argument of a cause by counsel, and before
delivering their opinion. In re Hohorst, 150 U.S.
662, 14 S.Ct. 221, 37 L.Ed. 1211.
ADVISORY. Counselling, suggesting, or advis-
ing, but not imperative or conclusive. A verdict
on an issue out of chancery is advisory. Watt v.
Starke, 101 U.S. 252, 25 L.Ed. 826. Not binding
on chancellor. Merritt v. Palmer, 289 Ky. 141,
158 S.W.2d 163, 165.
ADVISORY OPINION. A formal opinion by
judge or judges or a court or a law officer upon a
question of law submitted by a legislative body
or a governmental official, but not actually pre-
sented in a concrete case at law. Douglas Oil
Co. v. State, Tex.Civ.App., 81 S.W.2d 1064, 1077.
Merely opinion of judges or court, which adjudicates
nothing and is binding on no one, in exercise of wholly
non or extra-judicial function. The expression ordinarily
connotes the practice which existed in England from very
early times of extra-judicial consultation of the judges by
the Crown and the House of Lords. Douglas Oil Co. v.
State, Tex.Civ.App., 81 S.W.2d 1064, 1077.
ADVOCACY. The act of pleading for, supporting,
or recommending active espousal. Gitlow v. Peo-
ple of State of New York, 45 S.Ct. 625, 626, 268
U.S. 652, 69 L.Ed. 1138.
ADVOCARE. Lat. To defend; to call to one's
aid; to vouch; to warrant.
ADVOCASSIE. L. Fr. The office of an advocate;
advocacy. Kelham.
ADVOCATA. In old English law, a patroness;
a woman who had the right of presenting to a
church. Spelman.
ADVOCATE, v. To speak in favor of; defend by
argument. Ex parte Bernat, D.C.Wash., 255 F.
429, 432. To support, vindicate, or recommend
publicly. Butash v. State, 212 Ind. 492, 9 N.E.2d
88, 90. Not for an educational purpose, but to
disseminate controversial "propaganda," which
means plan for publication of doctrine or system
of principles. Leubuscher v. Commissioner of In-
ternal Revenue, C.C.A., 54 fil.2d 998, 999.
ADVOCATE, n. One who assists, defends, or
pleads for another; one who renders legal advice
and aid and pleads the cause of another before a
court or a tribunal, a counselor. Haverty Furni-
ture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694,
697.
A person learned in the law, and duly admitted
to practice, who assists his client with advice, and
pleads for him in open court. Holthouse.
An assistant; adviser; a pleader of causes.
Derived from advocare, to summon to one's assistance;
advocatus originally signified an assistant or helper of any
kind, even an accomplice in the commission of a crime;
Cicero, Pro Ccecina, c. 8; Livy, lib. ii. 55;  47; Tertul-
lian, De Idolatr. cap. xxiii. ; Petron. • Satyric. cap. xv.
Secondarily, it was applied to one called in to assist a
party in the conduct of a suit; Inst. 1, 11, D, 50, 13. de
extr. cogn. Hence, a pleader, which is its present signifi-
cation.
Civil and Ecclesiastical Law
An officer of the court, learned in the law, who
is engaged by a suitor to maintain or defend his
cause.
Generally
—Advocate general. The adviser of the crown
in England on questions of naval and military
law.
—Lord Advocate. The principal crown lawyer
in Scotland, and one of the great officers of state
of Scotland. It is his duty to act as public prose-
cutor; but private individuals injured may prose-
cute upon obtaining his concurrence. He is as-
sisted by a solicitor general and four junior coun-
sel, termed "advocates-depute." He has the pow-
er of appearing as public prosecutor in any court
in Scotland, where any person can be tried for an
offense, or in any action where the crown is in-
terested. Wharton.
—Queen's advocate. A member of the College of
Advocates, appointed by letters patent, whose of-
fice is to advise and act as counsel for the crown
in questions of civil, canon, and international law.
His rank is next after the solicitor general.
ADVOCATI. Lat. In Roman law, patrons; plead-
ers; speakers.
ADVOCATI ECCLESIZE. Advocates of the
church.
A term used in the ecclesiastical law to denote the
patrons of churches who presented to the living on an
avoidance. This term was also applied to those who were
retained to argue the cases of the church. These were of
two sorts : those retained as pleaders to argue the cases
of the church and attend to its law-matters ; and advo-
cates, or patrons of the advowson. Cowell ; Spelman,
Gloss.
ADVOCATI FISCI. In civil law, those chosen
by the emperor to argue his cause whenever a
question arose affecting his revenues. 3 Bla.
Comm. 27. Advocates of the fisc, or revenue; fis-
cal advocates, (qui causam fisci egissent.) Cod. 2,
9, 1; Cod. 2, 7, 13. Answering, in some measure,
to the king's counsel in English law.
ADVOCATIA. In the civil law, the quality, func-
tion, privilege, or territorial jurisdiction of an ad-
vocate.
The functions, duty, or privilege of an advo-
cate. Du Cange, Advocatia.
ADVOCATION. In Scotch law, a process by
which an action may be carried from an inferior
to a superior court before final judgment in the
former.
ADVOCATIONE DECIMARUM. A writ which
lay for tithes, demanding the fourth part or up-
wards, that belonged to any church.
ADVOCATOR. In old practice, one who called
on or vouched another to warrant a title; a
voucher. Advocatus; the person called on, or
vouched; a vouchee. Spelman; Townsh.P1. 45.
In Scotch practice, an appellant. 1 Broun, R.
67.
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ADVOCATUS
ADVOCATUS. A pleader; a narrator. Bracton,
412 a, 372 b.
In the civil law, an advocate; one who managed
or assisted in managing another's cause before
a judicial tribunal. Called also "patronus." Cod.
2, 7, 14. But distinguished from causidicus. Id.
2, 6, 6.
ADVOCATUS DIABOLI. In ecclesiastical law,
the devil's advocate; the advocate who argues
against the canonization of a saint.
Advocatus est, ad quern pertinet jus advocationis
alicujus ecclesim, ut ad ecclesiam, nomine pro-
prio, non alieno, possit proesentare. A patron is
he to whom appertains the right of presentation
to a church, in such a manner that he may pre-
sent to such a church in his own name, and not
in the name of another. Co.Litt. 119.
ADVOUTRER. In old English law, an adulterer.
Beaty v. Richardson, 56 S.C. 173, 34 S.E. 73, 46
L.R.A. 517.
ADVOUTRY. In old English law, adultery be-
tween parties both of whom were married. Hun-
ter v. U. S., 1 Pin. (Wis.) 91, 39 Am.Dec. 277. Or
the offense by an adulteress of continuing to live
with the man with whom she committed the
adultery. Cowell; Termes de la Ley. Sometimes
spelled "advowtry." See Advoutrer.
ADVOWEE, or AVOWEE. The person or patron
who has a right to present to a benefice. Fleta,
lib. 5, c. 14.
ADVOWEE PARAMOUNT. The sovereign, or
highest patron.
ADVOWSON. In English ecclesiastical law, the
right of presentation to a church or ecclesiastical
benefice; the right of presenting a fit person to
the bishop, to be by him admitted and instituted
to a certain benefice within the diocese, which
has become vacant. 2 Bl.Comm. 21; Co.Litt.
119b, 120a. The person enjoying this right is
called the "patron" (patronus) of the church, and
was formerly termed "advocatus," the advocate
or defender, or in English, "advowee." Id.; 1
Crabb, Real Prop. p. 129, § 117.
When there is no patron, or he neglects to exercise his
right within six months, it is called a lapse, and a title is
given to the ordinary to collate to a church : when a pres-
entation is made by one who has no right, it is called a
usurpation.
Advowsons are of different kinds.
Advowson appendant is an advowson annexed to a
manor, and passing with it, as incident or appendant to it,
by a grant of the manor only, without adding any other
words. 2 Bl.Comm. 22; Co.Litt. 120, 121; 1 Crabb, Real
Prop. p. 130, § 118.
Advowson collative. Where the bishop happens himself
to be the patron, in which case (presentation being impos-
sible, or unnecessary) he does by one act, which is termed
"collation," or conferring the benefice, all that is usually
done by the separate acts of presentation and institution.
2 Bl.Comm. 22, 23; 1 Crabb, Real Prop. p. 131, § 119.
Advowson donative exists where the patron has the right
to put his clerk in possession by his mere gift, or deed of
donation, without any presentation to the bishop, or insti-
tution by him. 2 Bl.Comm. 23; 1 Crabb, Real Prop. p. 131,
§ 119.
Advowson in gross is an advowson separated from the
manor, and annexed to the person. 2 Bl.Comm. 22; Co.
Litt. 120; 1 Crabb, Real Prop. p. 130, § 118; 3 Steph.
Comm. 116.
Advowson presentative . is the usual kind of advowson,
where the patron has the right of presentation to the
bishop, or ordinary, and moreover to demand of him to
institute his clerk, if he finds him canonically qualified. 2
Bl.Comm. 22; 1 Crabb, Real Prop. p. 131, § 119.
ADVOWTRY. See Advoutry.
2EDES. Lat. In the civil law, a house, dwelling,
temple, place of habitation, whether in the city
or country. Dig. 30, 41, 5. In the country every-
thing upon the surface of the soil passed under
the term "cedes." Du Cange; Calvin.
IEDIFICARE. Lat. In civil and old English
law, to make or build a house; to erect a building.
Dig. 45, 1, 75, 7.
)Edificare in tuo proprio solo non licet quod
alteri noceat. 3 Inst. 201. To build upon your
own land what may injure another is not lawful.
A proprietor of land has no right to erect an edifice on
his own ground, interfering with the due enjoyment of
adjoining premises, as by overhanging them, or by throw-
ing water from the roof and eaves upon them, or by
obstructing ancient lights and windows. Broom, Max. 369.
.izEdificatum solo solo cedit. What is built upon
land belongs to or goes with land. Broom, Max.
172; Co.Litt. 4a.
iEdificia solo cedunt. Buildings belong to [go
with] the soil. Fleta, lib. 3, c. 2, § 12.
JEDILE, In Roman law, an officer who attended
to the repairs of the temples and other public
buildings; the repairs and cleanliness of the
streets; the care of the weights and measures;
the providing for funerals and games; and to reg-
ulating the prices of provisions. Ainsworth, Lex.;
Smith, Lex.; Du Cange.
zEDILITUM EDICTUM. In the Roman law, the
lEdilitian Edict.
An edict providing remedies for frauds in sales, the
execution of which belonged to the curule  Dig. 21,
1. See Cod. 4, 58. That provision by which the buyer of
a diseased or imperfect slave, horse, or other animal was
relieved at the expense of the vendor who had sold him as
sound knowing him to be imperfect. Calvinus, Lex.
)EFESN. In old English law, the remuneration to
the proprietor of a domain /for the privilege of
feeding swine under the oaks and beeches of his
woods.
ZEGROTO. Lat. Being sick or indisposed. A
term used in some of the older reports. "Holt
cegroto." 11 Mod. 179.
AEGYLDE. Uncompensated, unpaid for, un-
avenged. From the participle of exclusion, a, ce,
or ex, (Goth.,) and gild, payment, requital. Anc.
Inst.Eng.
AEL. A Norman French term signifying "grand-
father." It is also spelled "aieul" and "ayle."
Kelham.
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AERONAUTIC
ZEQUIOR EST DISPOSITIO LEGIS QUAM HOM-
INIS. The disposition of the law is more equita-
ble than that of man. 8 Coke, 152.
JEQUITAS. In the civil law, equity, as opposed
to strictum or summum jus, (q. v.). Otherwise
called cequum, cequum bonum, cequum et bonum,
cequum et justum. Calvin.
Referring to the use of this term, Prof. Gray says
(Nature and Sources of the Law 290) : "Austin and Maine
take cequitas as having an analogous meaning to equity ;
they apply the . term to those rules which the prwtors intro-
duced through the Edict in modification of the jus civile,
but it seems to be an error to suppose that cequitas had
this sense in the Roman Law." He quotes Prof. Clark
(Jurisprudence 367) as doubting "whether cequitas is ever
clearly used by the Roman jurists to indicate simply a
department of Law" and expresses the opinion that an
examination of the authorities more than justifies his
doubt. iEquitas is opposed to' strictum jus and varies in
meaning between reasonable modification of the letter and
substantial justice. It is to be taken as a frame of mind
in dealing with legal questions and not as a source of law.
See JEquum et Bonum.
ZEquitas agit in personam. Equity acts upon the
person. 4 Bouv.Inst. n. 3733.
2Equitas est correctio legis generaliter latx, qua
parte deficit. Equity is the correction of that
wherein the law, by reason of its generality, is
deficient. Plowd. 375.
ZEquitas est correctio qudam legi adhibita, quia
ab ea abest aliquid propter generalem sine ex-
ceptione comprehensionem. Equity is a certain
correction applied to law, because on account of
its general comprehensiveness, without an excep-
tion, something is absent from it. Plowd. 467.
lEquitas est perfecta qudam ratio quajus scrip-
turn interpretatur et emendat; nulla scriptura
comprehensa, sed solum in vera ratione consistens.
Equity is a certain perfect reason, which inter-
prets and amends the written law, comprehended
in no writing, but consisting in right reason alone.
Co.Litt. 24b.
27-Equitas est quasi aequalitas. Equity is as it were
equality; equity is a species of equality or equali-
zation. .Co.Litt. 24.
ZEquitas ignorantiie opitulatur, oscitanthe non
item. Equity assists ignorance, but not careless-
ness.
Xquitas non facit jus, sed juri auxiliatur. Eq-
uity does not make law, but assists law. Lofft,
379.
ir
Equitas nunquam contravenit legis. Equity nev-
er counteracts the laws.
1-Equitas sequitur legem. Equity follows the law.
5 Barb.N.Y. 277, 282.
iEquitas supervacua odit. Equity abhors super-
fluous things. Lofft, 282.
IEquitas uxoribus, liberis, creditoribus maxime
favet. Equity favors wives and children, credi-
tors most of all.
ZEQUUM ET BONUM. "The Roman conception
involved in cequum et bonum' or `cequitas' is iden-
tical with what we mean by 'reasonable' or nearly
SO.
"On the whole, the natural justice or 'reason of the
thing' which the common law recognizes and applies does
not appear to differ from the 'law of nature' which the
Romans identified with jus gentium, and the medieval
doctors of the civil and common law boldly adopted as
being divine law revealed through man's natural reason."
Sir F. Pollock, Expans. of C. L. 111, citing [1902] 2 Ch.
661, where jus naturale and cequum et bonum were taken
to have the same meaning.
1Equum et bonum est lex legum. What is eq-
uitable and good is the law of laws. Hob. 224.
IEQUUS. Lat. Equal; even. A provision in a
will for the division of the residuary estate ex
cequus among the legatees means equally or even-
ly. Archer v. Morris, 47 Atl. 275, 61 N.J.Eq. 152.
JERA, or ERA. A fixed point of chronological
time, whence any number of years is counted;
thus, the Christian era began at the birth of
Christ, and the Mohammedan era at the flight
of Mohammed from Mecca to Medina. The deri-
vation of the word has been much contested.
Wharton.
ZERARIUM. Lat. In the Roman law. The treas-
ury, ( fiscus.) Calvin.
ATRIAL NAVIGATION. See Aeronautics.
AERODROME. A term originally applied by
Professor Langley to his flying machine but now
used in the same sense as "airport" ( q. v.).
AERONAUT. This term under some statutes
includes every person who, being in or upon an
airship or anything attached thereto, undertakes
to direct its ascent, course, or descent in the air,
or the ascent, course, or descent in the air of
anything attached to such airship.
Under the Uniform Aeronautics Act it includes
aviator, pilot, baloonist, and every other person
having any part in the operation of aircraft while
in flight. See Aeronautics.
AERONAUTIC ACTIVITY. The term is broad
enough to cover what is ordinarily incident to an
airplane trip.. The aeronautic activities of one
who takes such a trip do not begin or end with
the actual flight, but include his presence or
movements in or near to the machine incidental
to beginning or concluding the trip. Blonski v.
Bankers' Life Co., 209 Wis. 5, 243 N.W. 410.
Insured killed when struck by propeller after emerging
from airplane at end of flight, Day v. Equitable Life Assur.
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 148. To a contrary
effect: Tierney v. Occidental Life Ins. Co., 89 Cal.App. 779,
265 P. 400.
AERONAUTIC EXPEDITION. Traveling as pas-
senger in airplane operated in regular passenger
service was engaging in "aeronautic expedition"
under life policy. Gibbs v. Equitable Life Assur.
Soc. of U. S., 256 N.Y. 208, 176 N.E. 144. Contra.
King v. Equitable Life Assur. Soc. of United
States, 232 Iowa 541, 5 N.W.2d 845, 846, 155 A.L.R.
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AERONAUTIC
1022. Pleasure trip in airplane over airport on
pleasant day was not "aeronautic expedition"
under life policy. Day v. Equitable Life Assur.
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 149.
AERONAUTIC OPERATION. Passenger on reg-
ularly scheduled airplane trip engaged in "aero-
nautic operation," within life, policy. Day v. Eq-
uitable Life Assur. Soc. of U. S., C.C.A.Colo., 83
F.2d 147, 148. Did not include casual trip in air-
plane; "aeronautic operations" signifying more
than occasional venture. Gits v. New York Life
Ins. Co., C.C.A.I11., 32 F.2d 7, 10. Nor a pleasure
flight in airplane. Day v. Equitable Life Assur.
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 148.
AERONAUTICS. The science, art or practice of
sailing in the air; aerial navigation; the branch
of aerostatics which treats of floating in or navi-
gating the air as in an airship or airplane. Mas-
sachusetts Protective Ass'n v. Bayersdorfer, C.C.A.
Ohio, 105 F.2d 595, 597. Operation of aircraft.
Equitable Life Assur. Soc. of United States v.
Dyess, 194 Ark. 1023, 109 S.W.2d 1263, 1265.
It is divided into two branches: aerostation, dealing
with machines which, like balloons, are lighter than air ;
and aviation, dealing with artificial flight by machines
which are heavier than air. Bew v. Travelers' Ins. Co., 95
N.J.Law, 533, 112 A. 859, 860, 14 A.L.R. 983.
A passenger in an airplane, whether he takes part in its
operation or not, "participates in aeronautics" within the
meaning of an insurance policy. Meredith v. Business
Men's Acc. Ass'n of America, 213 Mo.App. 688, 252 S.W.
976, 977. Contra as to a transport airplane passenger who
could not pilot an airplane, had no knowledge of flying,
and at time of accident was traveling on private business.
Gregory v. Mutual Life Ins. Co. of New York, C.C.A.Ark.,
78 F.2d 522, 524. As to an insured, who was a fare-paying
passenger on a commercial transport plane over an estab-
lished route while plane was wholly under the control of
others. Bayersdorfer v. Massachusetts Protective Ass'n,
D.C.Ohio, 20 F.Supp. 489, 492. A father riding with son as
guest in airplane purchased by father for son. Day v.
Equitable Life Assur. Soc. of U. S., C.C.A.Colo., 83 F.2d
147, 149. And where insured after alighting from a flight,
in bending over to avoid a wire, was struck by the propel-
ler of the aeroplane. Tierney v. Occidental Life Ins. Co. of
California, 89 Cal.App. 779, 265 P. 400, 401.
See, also, Aircraft; Airship; Airport; Airway;
Aviation.
AEROPLANE. See Aircraft; Hydro-Aeroplane;
Seaplane.
AEROSTATICS. "Ae"cstatics" is divided into two
main branches; aer: ,, ation dealing, properly,
with machines, which, like balloons, are lighter
than air, and aviation dealing with the problem of
artificial flight by means of flying machines,
which, like birds, are heavier than air. Swasey v.
Massachusetts Protective Ass'n, C.C.A.Ariz., 96
F.2d 265, 266.
AEROSTATION. See Aerostatics, and Aeronau-
tics, note.
"ES. Lat. In the Roman law, money, (literally,
brass;) metallic money in general, including gold.
Dig. 9, 2, 2, pr.; Dig. 9, 2, 27, 5; Dig. 50, 16, 159.
"ES ALIENUM. A civil law term signifying a
debt. Literally translated, the money of anoth-
er; the civil law considered borrowed money as
the property of another, as distinguished from
ces suum, one's own money.
SUUM. One's own money. In the Roman
law, debt; a debt; that which others owe to us,
(quod alii nobis debent.) Dig. 50, 16, 213.
IESNECIA. In old English law, Esnecy; the
right or privilege of the eldest born. Spelman;
Glanv. lib. 7, c. 3; Fleta, lib. 2, c. 66, §1 5, 6.
IESNECIUS. See Anecius; Aesnecia.
'ESTHETIC. Relating to that which is beautiful
or in good taste. People v. Wolf, 216 N.Y.S. 741,
744, 127 Misc. 382. Pertaining to the beautiful.
Hay -A-Tampa Cigar Co. v. Johnson, 149 Fla. 148,
5 So.2d 433, 440.
'ESTIMATIO CAPITIS. Lat. The value of a
head.
In Saxon law, the estimation or valuation of the head ;
the price or value of a man. The price to be paid for tak-
ing the life of a human being. By the laws of Athelstan,
the life of every man not excepting that of the king him-
self, was estimated at a certain price, which was called
the were, or cestimatio capitis. Crabb, Eng.Law, c. 4.
'ETAS. Lat. In the civil law. Age.
"ESTIMATIO PRIETERITI DELICTI EX POST-
REMO FACTO NUNQUAM CRESCIT. The weight
of a past offense is never increased by a subse-
quent fact. Bacon.
'ETAS INFANTIZE (also written infantili)
PROXIMA. The age next to infancy; the first
half of the period of childhood (pueritia,) extend-
ing from seven years to ten and a half. Inst. 3,
20, 9; 4 Bl.Comm. 22. See Age.
'ETAS LEGITIMA. Lawful age; the age of
twenty-five. Dig. 3, 5, 27, pr.; Id. 26, 2, 32, 2; Id.
27, 7, 1, pr.
'ETAS PERFECTA. Complete age; full age;
the age of twenty-five. Dig. 4, 4, 32; Id. 22, 3,
25, 1.
'ETAS PRIMA. The first age; infancy, (tinfan-
tia). Cod. 6, 61, 8, 3.
'ETAS PUBERTATI PROXIMA. The age next
to puberty; the last half of the period of child-
hood (pueritia), extending from ten and a half
years to fourteen, in which there might or might
not be criminal responsibility according to natural
capacity or incapacity. Inst. 3, 20, 9; 4 Bl.Comm.
22. See Age.
"ETATE PROBANDA. A writ which inquired
whether the king's tenant holding in chief by
chivalry was of full age to receive his lands. It
was directed to the escheater of the county. Now
disused.
"ETHELING. In Saxon law, a noble; generally
a prince of the blood.
AFFAIR. (Fr.). A law suit.
The term frequently refers to an amour; in-
trigue; liaison.
•
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AFFIDARI
AFFAIRS. An inclusive term, bringing within
its scope and meaning anything that a person may
do. Walker v. United States, C.C.A.Mo., 93 F.2d
383, 391.
A person's concerns in trade or property; business.
Bragaw v. Bolles, 51 N.J.Eq. 84, 25 A. 947. That which is
done or to be clone. Wicks v. City and County of Denver,
61 Colo. 266, 156 P. 1100, 1103. A corporation's borrowing
money, and methods of obtaining loans. Cameron v. First
Nat. Bank, Tex.Civ.App., 194 S.W. 469, 470. Person and
estate of alleged incompetent. State ex rel. Bevan v. Wil-
liams, 316 Mo. 665, 291 S.W. 481, 482. General operations
carried on by an employer. Gocs v. Thomas E. Coale Coal
Co., 142 Pa.Super. 479, 16 A.2d 720, 723.
AFFECT. To act upon; influence; change; en-
large or abridge; often used in the sense of acting
injuriously upon persons and things. Ryan v.
Carter, 93 U.S. 84, 23 L.Ed. 807; Tyler v. Wells, 2
Mo.App. 538; Holland v. Dickerson, 41 Iowa 373;
Meurer v. Hooper, Tex.Civ.App., 271 S.W. 172, 177.
Does not mean to impair. Harris v. Friend, 24
N.M. 627, 175 P. 722, 725. To lay hold of or at-
tack (as a disease does) ; to act, or produce an
effect upon; to impress or influence (the mind or
feelings) ; to touch. State v. Hurd, 5 Wash.2d
308, 105 P.2d 59, 61, 62. Acted upon, influenced,
concerned. In re National Lock Co., D.C.Ill., 9 F.
Supp. 432, 433. Implies an indirect relation.
Chapman v. Home Ice Co., D.C.Tenn., 43 F.Supp.
424, 428.
AFFECTED WITH A PUBLIC INTEREST. Af-
firmatively, phrase means that a business or prop-
erty must be sun or be so employed as to justify
the conclusion that it has been devoted to a pub-
lic use, and its use thereby in effect granted to
the public. Negatively, it does not mean that a
business is affected with a public interest merely
because it is large or because the public are war-
ranted in having a feeling of concern in respect
of its maintenance. H. Earl Clack Co. v. Public
Service Commission of State of Montana, 94 Mont.
488, 22 P.2d 1056.
A business given a virtual monopoly in its field or where
the public adapt their business or conduct to the methods
used by it. Western Buse Telephone Co. v. Northwestern
Bell Telephone Co., 188 Minn. 524, 248 N.W. 220, 229. The
business must affect the prosperity of a large part of file
members of the body politic. Ex parte Kazas, 22 Cal.App.
2d 161, 70 P.2d 962, 967. This phrase means something
more than "quasi public," or "not strictly private," and
similar phrases employed as a basis for upholding police
regulations. A business is not affected with a public inter-
est merely because the public derives benefit, accommoda-
tion, ease or enjoyment from its existence or operation,
such as admissions to places of amusement or entertain-
ment. Tyson & Bro.-United Theatre Ticket Offices v. Ban-
ton, 273 U.S. 418, 47 S.Ct. 426, 429, 71 L.Ed. 718, 58 A.L.R.
1236.
Businesses. Three classes of such businesses : (1) Those
carried on under the authority of a public grant or privi-
lege expressly or impliedly imposing an affirmative duty of
rendering public service demanded by the public, such as
common carriers and public utilities ;  (2) occupations
regarded as exceptional, the public interest attaching to
which has been recognized from earliest times and has sur-
vived the period of arbitrary laws by Parliament or colo-
nial legislatures for regulating trades and callings, such as
inns, cabs, and grist mills ; (3) businesses which, though
not public at their inception, have become such by devot-
ing their business to a public use, thereby granting the
public an interest in that use and subjecting themselves to
public regulation to extent of that interest, although the
property continues to belong to its private owner, and to
be entitled to protection accordingly, as public warehouses
for storage of grain, .banks, and insurance companies.
Rohrer v. Milk Control Board, 121 Pa.Super. 281, 184 A.
133, 138.
AFFECTIO TUA NOIVIEN IMPONIT OPERI TUO.
Your disposition (or motive, intention) gives
name (or character) to your work or act. Bract.
fol. 2b, 101b.
AFFECTION. The making over, pawning, or
mortgaging of a thing to assure the payment of
a sum of money, or the discharge of some other
duty or service. Crabb, Technol.Dict.
In a medical sense, an abnormal bodily condition. A
local "affection" is not a local disease within the
meaning of an insurance policy, un l ess the affection has
sufficiently developed to have some bearing on the general
health. Cady v. Fidelity & Casualty Co. of New York, 134
Wis. 322, 113 N.W. 967, 971, 17 L.R.A.,N.S., 260.
AFFECTUS. Disposition; intention, impulse or
affection of the mind. One of the causes for a
challenge of a juror is propter affectum, on ac-
count of a suspicion of bias or favor. 3 Bl.Comm.
363; Co.Litt. 156.
AFFECTUS PUNITUR LICET NON SEQUATUR
EFFECTUS. The intention is punished although
the intended result does not follow. 9 Coke, 55.
AFFEER. To assess, liquidate, appraise, fix in
amount.
Account
To confirm it on oath in the exchequer. Cowell ;
Blount; Spelman.
Amercement
To establish the amount which one amerced in a court-
leet should pay. See Amercement.
AFFEERORS. Persons who, in court-leets, upon
oath, settle and moderate the fines and amerce-
ments imposed on those who have committed of-
fenses arbitrarily punishable, or that have no ex-
press penalty appointed by statute. They are al-
so appointed to moderate fines, etc., in courts-
baron. Cowell.
AFFERMER. L. Fr. To let to farm. Also to
make sure, to establish or confirm. Kelham.
AFFIANCE. To assure by pledge. A plighting
of troth between man and woman. Littleton, §
39.
An agreement by which a man and woman
promise each other that they will marry together.
Pothier, Traitó du Mar, n. 24. Co.Litt. 34 a. See
Dig. 23, 1, 1; Code, 5. 1. 4.
AFFIANT. The person who makes and sub-
scribes an affidavit. The word is used, in this
sense, interchangeably with "deponent." But the
latter term should be reserved as the designation
of one who makes a deposition.
AFFIDARE. To swear faith to; to pledge one's
faith or do fealty by making oath. Cowell. Used
of the mutual relation arising between landlord
and tenant; 1 Washb.R.P. 19; 1 Bla.Com. 367;
Termes de la Ley, Fealty. Affidavit is of kindred
meaning.
AFFIDARI. To be mustered and enrolled for sol-
diers upon an oath of fidelity.
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AFFIDATIO
AFFIDATIO. A swearing of the oath of fidelity
or of fealty to one's lord, under whose protection
the quasi-vassal has voluntarily come. Brown.
AFFIDATIO DOMINORUM. An oath taken by
the lords in parliament.
AFFIDATUS. One who is not a vassal, but who
for the sake of protection has connected himself
with one more powerful. Spelman; 2 Bl.Comm.
46.
AFFIDAVIT. A written or printed declaration or
statement of facts, made voluntarily, and con-
firmed by the oath or affirmation of the party
making it, taken before an officer having authori-
ty to administer such oath. Cox v. Stern, 170
Ill. 442, 48 N.E. 906, 62 Am.St.Rep. 385; Hays v.
Loomis, 84 Ill. 18. A statement or declaration re-
duced to writing, and sworn to or affirmed before
some officer who has authority to administer an
oath or affirmation. Shelton v. Berry, 19 Tex. 154,
70 Am.Dec. 326, and In re Breidt, 84 N.J.Eq. 222,
94 A. 214, 216.
A written or printed declaration or statement of facts,
made voluntarily, and confirmed by the oath or affirmation
of the party making it, taken before an officer having
authority to administer such oath. June v. School Dist.
No. 11, Southfield Tp., 283 Mich. 533, 278 N.W. 676, 677, 116
A.L.R. 581. Any voluntary ex parte statement reduced to
writing and sworn to or affirmed before some person
legally authorized to administer oath or affirmation, made
without notice to adverse party and without opportunity
to cross-examine. Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d
434, 435, 436. The word sometimes includes "depositions."
U. S. v. Kaplan, D.C.Ga., 286 F. 963, 970.
"Affidavits" are of two kinds; those which serve as evi-
dence to advise the court in the decision of some prelimi-
nary issue or determination of some substantial right, and
those which merely serve to invoke the judicial power.
Worthen v. State, 189 Ala. 395, 66 So. 686, 688.
AFFIDAVIT OF DEFENSE. An affidavit stating
that the defendant has a good defense to the
plaintiff's action on the merits. The statements
required in such an affidavit vary considerably in
the different states where they are required.
Called also an affidavit of merits (q. v.), as in
Massachusetts.
AFFIDAVIT OF DEMAND. "Affidavit of de-
mand" filed under Code section to obtain judg-
ment for want of affidavit of defense held not
equivalent of "declaration." Penn Central Light
& Power Co. v. Central Eastern Power Co., 6 W.
W.Harr. 74, 171 A. 332.
AFFIDAVIT OF MERITS. One setting forth that
the defendant has a meritorious defense (substan-
tial and not technical) and stating the facts con-
stituting the same. Palmer v. Rogers, 70 Iowa
381, 30 N.W. 645. Represents that, on the sub-
stantial facts of the case, justice is with the af-
fiant. Wendel v. Wendel, 58 S.D. 438, 236 N.W.
468, 469.
AFFIDAVIT OF SERVICE. An affidavit intend-
ed to certify the service of a writ, notice, or other
document.
AFFIDAVIT TO HOLD TO BAIL. An affidavit
required in many cases before the defendant in
a civil action may be arrested. Such an affidavit
must contain a statement, clearly and certainly
expressed, by some one acquainted with the fact,
of an indebtedness from the defendant to the
plaintiff, and must show a distinct cause of action;
1 Chit.P1. 165.
AFFILARE. L. Lat. To put on record; to file
or affile. Affiletur, let it be filed. 8 Coke, 160.
De recordo affilatum, affiled of record. 2 Ld.
Raym. 1476.
AFFILE. A term employed in old practice, signi-
fying to put on file. 2 Maule & S. 202. In modern
usage it is contracted to file.
AFFILIATE. Signifies a condition of being unit-
ed, being in close connection, allied, or attached as
a member or branch. Johanson v. Riverside
County Select Groves, 4 Cal.App.2d 114, 40 P.2d
530, 534.
"Affiliate with" is defined as to receive on friendly
terms; to associate with; to be intimate with; to sympa-
thize with; to consort with; and to connect or associate
one's self with. Wolck v. Weedin, C.C.A.Wash., 58 F.2d
928, 930. But "affiliated" does not bear construction that
one of affiliated organizations is in all particulars identical
with or covered by parent organization with which it may
be said to be affiliated. People v. Horiuchi, 114 Cal.App.
415, 300 P. 457, 460.
AFFILIATION. Imports less than membership
in an organization, but more than sympathy, and
a working alliance to bring to fruition the pro-
scribed program of a proscribed organization, as
distinguished from mere co-operation with a pro-
scribed organization in lawful activities, is es-
sential. Bridges v. Wixon, Cal., 326 U.S. 135, 65
S.Ct. 1443, 1447, 89 L.Ed. 2103.
It includes an element of dependability upon which the
organization can rely which, though not equivalent to
membership duty, rests upon course of conduct that could
not be abruptly ended without giving at least reasonable
cause for charge of breach of good faith. U. S. ex rel.
Kettunen v. Reimer, C.C.A.N.Y., 79 F.2d 315, 317.
The act of imputing or determining the paterni-
ty of a bastard child, and the obligation to main-
tain it.
Corporations
Actual control of corporations by same interests
is insufficient; legally enforceable control of stock
of corporations by same interests being required.
Island Petroleum Co. v. Commissioner of Internal
Revenue, C.C.A., 57 F.2d 992, 994. Commences
with acquisition of corporation from owners out-
side of group and ends with disposal of all prop-
erties or stock to those outside group. Hernandez
v. Charles Ilfeld Co., C.C.A.N.M., 66 F.2d 236, 238.
Ecclesiastical Law
A condition which prevented the superior from
removing the person affiliated to another convent.
Guyot, Repert.
French Law
A species of adoption which exists by custom in
some parts of France. The person affiliated suc-
ceeded equally with other heirs to the property ac-
quired by the deceased to whom he had been af-
filiated, but not to that which he inherited.
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AFFIRMATION
AFFINAGE. A refining of metals. Blount.
AFFINES. In the civil law, connections by mar-
riage, whether of the persons or their relatives.
Calvinus, Lex.
Neighbors, who own or occupy adjoining
lands. Dig. 10, 1, 12.
From this word we have affinity, denoting relationship
by marriage; 1 Bla.Com. 434. The singular, affinis, is
used in a variety of related significations—a boundary; Du
Cange; a partaker or sharer, affinis culpce (an aider or
one who has knowledge of a crime) ; Calvinus, Lex.
AFFINIS MEI AFFINIS NON EST MIHI AF-
FINIS. One who is related by marriage to a per-
son related to me by marriage has no affinity to
me. Shelf.Mar. & Div. 174.
AFFINITAS. Lat. In the civil law, affinity; re-
lationship by marriage. Inst. 1, 10, 6.
AFFINITAS AFFINITATIS. Remote relation-
ship by marriage. That connection between par-
ties arising from marriage which is neither con-
sanguinity nor affinity. Davidson v. Whitehill, 87
Vt. 499, 89 A. 1081, 1085. This term signifies the
connection between the kinsmen of the two per-
sons married, as, for example, the husband's
brother and the wife's sister. Erskine, Inst. 1. 6. 8.
AFFINITY. A close agreement; relation; spir-
itual relation or attraction held to exist between
certain persons. State ex inf. Norman v. Ellis,
325 Mo. 154, 28 S.W.2d 363, 367. Relation which,
one spouse because of marriage has to blood rela-
tives of the other. State v. Hooper, 140 Kan. 481,
37 P.2d 52.
Degrees of relationship by affinity are computed as are
degrees of relationship by consanguinity. The doctrine of
affinity grew out of the canonical maxim that marriage
makes husband and wife one. The husband has the same
relation, by affinity, to his wife's blood relatives as she has
to them by consanguinity and vice versa. State v. Hooper,
140 Kan. 481, 37 P.2d 52.
Affinity is distinguished into three kinds : (1) Direct, or
that subsisting between the husband and his wife's rela-
tions by blood, or between the wife and the husband's rela-
tions by blood; (2) secondary, or that which subsists
between the husband and his wife's relations by marriage ;
(3) collateral, or that which subsists between the husband
and the relations of his wife's relations. Wharton.
In a larger sense, consanguinity or kindred.
Co.Litt. 157a.
Quasi Affinity
In the civil law, the affinity which exists be-
tween two persons, one of whom has been be-
trothed to a kinsman of the other, but who have
never been married.
AFFIRM. To ratify, make firm, confirm, estab-
lish, reassert. Cowell; Ashby v. Peters, 128 Neb.
338, 258 N.W. 639, 644, 99 A.L.R. 843.
In the practice of appellate courts, to affirm a judgment,
decree, or order, is to declare that it is valid and right,
and must stand as rendered below; to ratify and reassert
it;  to concur in its correctness and confirm its efficacy.
Boner v. Fall River County Bank, 25 Wyo. 260, 168 P. 726,
727.
Contracts
Ratify and accept voidable contract. Cf. Adopt.
Black's Law Dictionary Revised 4th Ed.-6
Pleading
To allege or aver a matter of fact; to 'state it
affirmatively; the opposite of 'deny or traverse.
Practice
To make affirmation; to make a solemn and
formal declaration or asseveration that an affi-
davit is true, that the witness will tell the truth,
etc., this being substituted for an oath in certain
cases. Also, to give testimony on affirmation.
AFFIRMANCE. In practice. The confirming, or
ratifying of a former law, or judgment. Cowell;
Blount.
The confirmation and ratification by an appel-
late court of a judgment, order, or decree of a
lower court brought before it for review. See Af-
firm, note.
The ratification or confirmation of a voidable
contract or act by the party who is to be bound
thereby.
The term is in accuracy to be distinguished from ratifi-
cation, which is a recognition of the validity or binding
force as against the party ratifying, of some act performed
by another person; and from confirmation, which would
seem to apply more properly to cases where a doubtful
authority has been exercised by another in behalf of the
person ratifying; but these distinctions are not generally
observed with much care.
AFFIRMANCE DAY GENERAL. In the English
court of exchequer, a day appointed by the judges
of the common pleas, and barons of the exche-
quer, to be held a few days after the beginning of
every term for the general affirmance or reversal
of judgments. 2 Tidd, Pr. 1091.
AFFIRMANT. A person who testifies on affirma-
tion, or who affirms instead of taking an oath.
See Affirmation. Used in affidavits and deposi-
tions which are affirmed, instead of sworn to in
place of the word "deponent."
AFFIRMANTI, NON NEGANTI INCUMBIT
PROBATIO. The [burden of] proof lies upon
him who affirms, not upon one who denies. Steph.
Pl. 84.
AFFIRMANTIS EST PROBARE. He who affirms
must prove. Porter v. Stevens, 9 Cush., Mass.,
535.
AFFIRMATION. In practice, a solemn and for-
mal declaration or asseveration that an affidavit
is true, that the witness will tell the truth, etc.,
this being substituted for an oath in certain cases.
A solemn religious asseveration in the nature of
an oath. 1 Greenl.Ev. § 371.
Quakers, as a class, and other persons who have consci-
entious scruples against taking an oath, are allowed to
make affirmation in any mode which they may declare to
be binding upon their consciences, in confirmation of the
truth of testimony which they are about to give. 1 Atk.
21, 46; Cowp. 340, 389; 1 Leach Cr.Cas. 64; 1 Ry. &
M. 77.
AFFIRMATION OF FACT. A statement concern-
ing a subject-matter of a transaction which might
otherwise be only an expression of opinion but
which is affirmed as an existing fact material to
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AFFIRMATIO UNIUS
t lie transaction, and reasonably induces the other
party to consider and rely upon it, as a fact.
Stone v. McCarty, 64 Cal.App. 158, 220 P. 690, 694.
AFFIRMATIO UNIUS EXCLUSIO EST ALTERI-
CS. The affirmance of one thing is the exclusion
of the other. State v. Evans, 214 La. 472, 38 So.2d
140, 147.
AFFIRMATIVE. That which declares positively;
that which avers a fact to be true; that which
establishes; the opposite of negative.
The party who, upon the allegations of pleadings joining
issue, is under the obligation of making proof, in the first
instance, of matters alleged, is said to hold the affirmative,
or, in other words, to sustain the burden of proof. Abbott.
As to affirmative "Damages," "Plea," "Proof,"
"Warranty," see those titles.
AFFIRMATIVE ACTION. The "affirmative ac-
tion" which the National Labor Relations Board '
is authorized to take to effectuate the policies of
the National Labor Relations Act is action to
make effective the redress of rights conferred
upon employees by the act. National Labor Rela-
tions Board v. National Casket Co., C.C.A.2, 107
F.2d 992, 998.
It is broad, but is not unlimited, is remedial not puni-
tive, and is to be exercised in aid of the Board's authority
to restrain violations and as a means of removing or avoid-
ing the consequences of violations. National Labor Rela-
tions Board v. Fansteel Metallurgical Corporation, 306 U.S.
240, 59 S.Ct. 490, 497, 83 L. Ed. 627, 123 A.L.R. 599.
It is not disciplinary. National Labor Relations Board
v. Leviton Mfg. Co., C.C.A.2, 111 F.2d 619, 621.
AFFIRMATIVE AUTHORIZATION. Something
more than authority by mere implication. White,
Gratwick & Mitchell v. Empire Engineering Co.,
125 Misc. 47, 210 N.Y.S. 563, 572.
AFFIRMATIVE CHARGE. The general "affirma-
tive charge" is an instruction to the jury that,
whatever the evidence may be, defendant cannot
be convicted under the count in the indictment to
which the charge is directed. Coker v. State, 18
Ala.App. 550, 93 So. 384, 386.
AFFIRMATIVE DEFENSE. In code pleading.
New matter constituting a defense; new matter
which, assuming the complaint to be true, con-
stitutes a defense to it. Carter v. Eighth Ward
Bank, 33 Misc. 128, 67 N.Y.S. 300.
AFFIRMATIVE EASEMENT. An "affirmative
easement" is one which gives to the owner of the
dominant tenement the right to use the servient
tenement, or to do some act thereon which would
otherwise be unlawful. Clements v. Taylor, Tex.
Civ.App., 184 S.W.2d 485, 487.
AFFIRMATIVE PREGNANT. In pleading, an af-
firmative allegation implying some negative in
favor of the adverse party. Fields v. State, 134
Ind. 46, 32 N.E. 780.
AFFIRMATIVE PROOF. Such evidence of the
truth of matters asserted as tends to establish
them, regardless of character of evidence offered.
Glass v. Newport Clothing Co., 110 Vt. 368, 8 A.2d
651, 654.
AFFIRMATIVE RELIEF. Relief, benefit, or com-
pensation which may be due and granted to de-
fendant. Garner v. Hannah, 6 Duer, N.Y., 262.
Relief for which defendant might maintain an ac-
tion independently of plaintiff's claim and on
which he might proceed to recovery, although
plaintiff abandoned his cause of action or failed
to establish it. Southwestern Surety Ins. Co. v.
Walser, 77 Okl. 240, 188 P. 335, 336.
AFFIRMATIVE STATUTE. A statute couched in
affirmative or mandatory terms. 1 Bl.Comm. 142.
One which directs the doing of an act, or declares what
shall be done ; as a negative statute is one which prohibits
a thing from being done, or declares what shall not be
done. Blackstonp describes affirmative acts of parliament
as those "wherein justice is directed to be done according
to the law of the land." 1 Bl.Comm. 142.
AFFIRMATIVE WARRANTY. Affirms existence
of a fact at time policy is entered into, while
promissory warranty requires that something be
done or not done after policy has taken effect.
Sentinel Life Ins. Co. v. Blackmer, C.C.A.Colo.,
77 F.2d 347, 350.
AFFIX. Fix or fasten in any way, to attach
physically. Penn v. Dyba, 115 Cal.App. 67, 1 P.2d
461, 464. To attach to, inscribe, or impress upon,
as a signature, a seal, a trade-mark. Pen.Code
N.Y. § 367. To attach, add to, or fasten upon, per-
manently, as in the case of fixtures annexed to
real estate.
A thing is deemed to be affixed to land when .it is
attached to it by the roots; as in the case of trees, vines,
or shrubs ; or imbedded in it, as in the case of walls ; or
permanently resting upon it, as in the case of buildings ;
or permanently attached to what is thus permanent, as by
means of cement, plaster, nails, bolts, or screws. Miller
v. Waddingham, 3 Cal.Unrep.Cas. 375, 25 Pac. 688, 11
L.R.A. 510; Tolle v. Vandenberg, 44 Okl. 780, 146 P. 212,
213.
AFFIXING. Securely attached. Mechanics' Nat.
Bank of Trenton v. Newman, 137 Misc. 587, 244
N.Y.S. 529, 531.
AFFIXUS. In the civil law, affixed, fixed, or fas-
tened to.
AFFLICTION. A distress of mind or body; that
which causes continuing anguish or suffering.
AFFORARE. To set a price or value on a thing.
Blount.
AFFORATUS. Appraised or valued, as things
vendible in a market. Blount.
AFFORCE. To add to; to increase; to strength-
en; to add force to.
AFFORCE THE ASSIZE. In old English practice,
a method of securing a verdict, where the jury
disagreed, either by confining them without meat
and drink, or, more anciently, by adding other
jurors to the panel, to a limited extent, until
twelve could be found who were unanimous.
Bract. fol. 185b, 292a; Fleta, lib. 4, c. 9, § 2; 2
Reeve, Hist.Eng.Law, 267.
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AFTER-BORN
AFFORCIAMENTUM. In old English law, a
fortress or stronghold, or other fortification. Cow-
ell.
The calling of a court upon a solemn or extra-
ordinary occasion. Id.
AFFOREST. To convert land into a forest in the
legal sense of the word.
AFFORESTATION. The turning of a part of a
country into forest or woodland or subjecting it
to forest law, q. v.
AFFOUAGE. In French law, the right of the in-
habitants of a commune or section of a commune
to take from the forest the fire-wood which is
necessary for their use. Duverger.
AFFRANCHIR. L. Fr. To set free. Kelham.
AFFRANCHISE. To liberate; to make free.
AFFRAY. The fighting of two or more persons
in some public place to the terror of the people.
Wallace v. Commonwealth, 207 Ky. 122, 268 S.W.
809, 813.
Where two or more persons voluntarily or by agreement
engage in any fight, or use any blows or violence towards
each other in an angry or quarrelsome manner, in any
public place to the disturbance of others.
Words are insufficient, but if one person, by such abusive
language toward another as is calculated and intended to
bring on a fight, induces the other to strike him, both are
guilty of "affray." State v. Maney, 194 N.C. 34, 138 S.E.
441, 442.
It differs from a riot in not being premeditated. Hawk.
P.C. bk. 1, c. 65, § 3; 4 Bl.Comm. 146; 1 Russ.Crimes, 271.
AFFRECTAMENTUM. Affreightment; a con-
tract for the hire of a vessel. From the Fr. fret,
which, according to Cowell, meant tons or ton-
nage. Affreightamentum was sometimes used.
Du Cange.
AFFREIGHTMENT. A contract of affreightment
is a contract with a ship-owner to hire his ship,
or part of it, for the carriage of goods. The Fred
Smartley, Jr., C.C.A.Va., 100 F.2d 971, 973.
Such a contract generally takes the form either of a
charter-party or of a bill of lading. Bramble v. Culmer, 78
Fed. 501, 24 C.C.A. 182. A contract to transport goods con-
stitutes a contract of "affreightment," although there is
towage service connected therewith. The Independent,
D.C.La., 37 F.Supp. 106, 111.
In French law, freighting and affreighting are distin-
guished. The owner of a ship freights it, (le frete;) he
is called the freighter, (freteur;) he is the letter or lessor,
(locateur, locator.) The merchant affreights (affrete) the
ship, and is called the affreighter, (affreteur;) he is the
hirer, (locataire, conductor.) Emerig. Tr. des Ass. c. 11,
§ 3.
AFFRETEMENT. Fr. In French law, the hiring
of a vessel; affreightment (q. v.). Called also
nolissement. Ord.Mar. liv. 1, tit. 2, art. 2; Id.
liv. 3, tit. 1, art. 1.
AFFRI. In old English law, plow cattle, bullocks
or plow horses. Affri, or afri carucce; beasts of
the plow. Spelman.
AFFRONT. An insult or indignity; assault, in-
sololence.
AFORESAID. Before, or already said, mentioned,
or recited; premised. Plowd. 67. Alabama Great
Southern R. Co. v. Smith, 191 Ala. 643, 68 So. 56,
57. Foresaid is used in Scotch law.
Although the words "preceding" and "aforesaid" gen-
erally mean next before, and "following" means next
after, yet a different signification will be given to them if
required by the context and the facts of the case. Simpson
v. Robert, 35 Ga. 180.
AFORETHOUGHT. In criminal law, deliberate;
planned; premeditated; prepense. State v. Fiske,
63 Conn. 388, 28 A. 572. See Malice Aforethought;
Premeditation; 4 Bla.Com. 199; Respublica v.
Mulatto Bob, 4 Da11., Pa., 146, 1 L.Ed. 776; U. S.
v. Cornell, 2 Mas. 91, Fed.Cas.No.14,868.
"Aforethought" as used in the law of murder means
thought of beforehand and for any length of time, however
short, before the doing of the act, and is synonymous with
premeditation. State v. Smith, 26 N.M. 482, 194 P. 869,
872.
AFRICAN DESCENT. Persons of African nativi-
ty or of "African descent" within the meaning of
the Naturalization Act, as amended by Act July
14, 1870 (8 U.S.C.A. § 703 note), are members of
the negro races of Africa or their descendants by
intermixture with races constituting free white
persons, the negro races referred to being those
from which the emancipated slaves in the United
States descend. Ex parte Shahid, D.C.S.C., 205
F. 812, 815.
AFTER. Later, succeeding, subsequent to, in-
ferior in point of time or of priority or prefer-
ence.
Subsequent in time to. Cheney v. National Surety Cor-
poration, 256 App.Div. 1041, 10 N.Y.S.2d 706. At. Hyman
Bros. Box & Label Co. v. Industrial Accident Commission,
180 Cal. 423, 181 P. 784, 786. On and after New York Trust
Co. v. Portland Ry. Co., 197 App.Div. 422, 189 N.Y.S. 346,
348. "At the end of" or "as soon as," and in computation
of time, is generally understood in sense of excluding
day of date mentioned. Taylor v. National Life & Acci-
dent Ins. Co., Tex.Civ.App., 63 S.W.2d 1082, 1083. But the
words "after the filing" as used in sections 63 and 68 of the
Bankruptcy Act (11 U.S.C.A. §§ 103, 108) do not mean the
day after that of filing, but refer to the very instant of fil-
ing if ascertainable. In re Ledbetter, D.C.Ga., 267 F. 893,
896. A note payable generally "after date," is payable on
demand. Love v. Perry, 19 Ga.App. 86, 90 S.E. 978, 979.
AFTER-ACQUIRED. Acquired after a particular
date or event. Thus, a judgment is a lien on af t-
er-acquired realty, i. e., land acquired by the debt-
or after entry of the judgment. Hughes v.
Hughes, 152 Pa. 590, 26 A. 101.
AFTER ACQUIRED TITLE. Doctrine under
which title acquired by grantor who previously
attempted to convey title to land which he did
not in fact own, inures automatically to benefit
of prior grantees. Perkins v. White, Miss., 43
So.2d 897, 899; Morris v. Futischa, 194 Okl. 224,
148 P.2d 986, 987.
AFTER-BORN CHILD. A statute making a will
void as to after-born children means physical
birth, and is not applicable to a child legitimated
by the marriage of its parents. Appeal of Mc-
Culloch, 11.3 Pa. 247, 6 A. 253. See En Ventre Sa
Mere; Posthumous Child.
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AFTER-DISCOVERED
AFTER-DISCOVERED. Discovered or made
known after a particular date or event.
AFTER-DISCOVERED EVIDENCE. See Evi-
dence.
AFTER SIGHT. This term as used in a bill pay-
able so many days after sight, means after legal
sight; that is, after legal presentment for ac-
ceptance. The mere fact of having seen the bill
or known of its existence does not constitute le-
gal "sight." Mitchell v. Degrand, 17 Fed.Cas.
494.
AFTERMATH. A second crop of grass mown in
the same season; also the right to take such sec-
ond crop. See 1 Chit.Gen.Pr. 181.
"Aftermath" as used in the manufacture of window glass
means the colder glass remaining on and in molten bath
after drawing of glass cylinder. Okmulgee Window Glass
Co. v. Window Glass Mach. Co., C.C.A.Okl., 265 F. 626,
630.
AFTERNOON. May mean the whole time from
noon to midnight, or it may mean the earlier part
of that time as distinguished from evening.
Clevenger v. Carl B. King Drilling Co., Tex.Civ.
App., 62 S.W.2d 1001. But ordinarily means that
part of day between noon and evening. Buttrick
v. Woman's Hospital Aid Ass'n, 87 N.H. 194, 177
A. 416, 418.
AFTERTHOUGHT. A thought composed after
the event and with deliberation. A devise to es-
cape difficulty.
AFTERWARD, AFTERWARDS. Subsequent in
point of time; synonymous with "thereafter,"
Lamoutte v. Title Guaranty & Surety Co., 165 App.
Div. 573, 151 N.Y.S. 148, 154, or with "then,"
Boyce v. Mosely, 102 S.C. 361, 86 S.E. 771, 772.
AGAINST. Adverse to; contrary, Cram v. Meag-
her, 113 Vt. 463, 35 A.2d 855, In re Dean's Estate,
350 Mo. 494, 166 S.W.2d 529, 533. Signifies discord
or conflict; opposed to; without the consent of; in
contact with. Palmer v. Superior Mfg. Co., D.C.
N.Y., 203 F. 1003, 1005, Clemens v. Perry, Tex.Civ.
App., 29 S.W.2d 529, 533. Sometimes meaning
"upon," which is almost, if not altogether, synon-
ymous with word "on." Northern Pac. Ry. Co.
v. Gas Development Co., 103 Mont. 214, 62 P.2d
204, 205. Denoting manifestation of raped wo-
man's utmost reluctance and greatest resistance.
State v. Egner, 317 Mo. 457, 296 S.W. 145, 146.
AGAINST THE EVIDENCE. Means "against the
weight of the evidence." Cram v. Meagher, 113
Vt. 463, 35 A.2d 855.
AGAINST THE FORM OF THE STATUTE. Tech-
nical words which must be used in framing an in-
dictment for a breach of the statute prohibiting
the act complained of. The Latin phrase is con-
tra forman statuti, q. v. State v. Murphy, 15 R.I.
543, 10 A. 585.
AGAINST THE PEACE. A technical phrase used
in alleging a breach of the peace. See Contra
Pacem. State v. Tibbetts, 86 Me. 189, 29 A. 979.
AGAINST THE WEIGHT OF THE EVIDENCE,
"Contrary to the evidence". Russell v. Pilger,
113 Vt. 537, 37 A.2d 403, 411.
AGAINST THE WILL. Technical words which
must be used in framing an indictment for rob-
bery from the person, rape and some other of-
fenses. Whittaker v. State, 50 Wis. 521, 7 N.W.
431, 36 Am.St.Rep. 856.
AGALMA. An impression or image of anything
on a seal. Cowell.
AGARD. L. Fr. An award. Nul fait agard; no
award made.
AGARDER. L. Fr. To award, adjudge, or de-
termine; to sentence, or condemn.
AGE. The length of time during which a person
has lived; the time at which one attains full per-
sonal rights and capacities. In law the term sig-
nifies those periods in the lives of persons of both
sexes which enable them to do certain acts which,
before they had arrived at those periods, they
were prohibited from doing. 2 C.J.S., p. 1013.
As used in particular statutes, the term implies
disability and, by definition, has been applied to
all minors under a certain age and to others dis-
abled by old age. Hampton v. Ewert, C.C.A.Okl.,
22 F.2d 81, 87.
Age and schooling certificate. Collings-Taylor Co. v.
American Fidelity Co., 96 Ohio St. 123, 117 N.E. 158.
Age fixed by law. Johnson v. Travelers' Ins. Co., 147
Or. 345, 32 P.2d 587.
Age of consent. Ex parte Hutchens, 296 Mo. 331, 246
S.W. 186, 189.
Age of legal consent. Johnson v. Alexander, 39 Cal.App.
177, 178 P. 297; Fisher v. Bernard, 65 Vt. 663, 27 A. 316.
Age of majority. Gates v. Shaffer, 72 Wash. 451, 130 P.
896.
Age of maturity. Commercial Bank & Trust Co. v.
Noble, 112 So. 691, 146 Miss. 552.
Age of twenty-one years. Vanderbilt v. Eidman, 196 U.S.
480, 25 S.Ct. 331, 49 L. Ed. 563.
Legal Age. See Legal Age.
Legal school age. Inhabitants of Needham v.
Wellesley, 139 Mass. 372, 31 N.E. 732.
AGE, Awe, Aive. L. Fr. Water. Kelham.
AGE PRAYER. A suggestion of nonage, made by
an infant party to a real action, with a prayer
that the proceedings may be deferred until his
full age. It is now abolished. St. 11 Geo. IV.; 1
Wm. IV. c. 37, § 10; 1 Lil.Reg. 54; 3 Bl.Comm. 300.
AGENCY. Includes every relation in which one
person acts for or represents another by latter's
authority, Saums v. Parfet, 270 Mich. 165, 258
N.W. 235, where one person acts for another, ei-
ther in the relationship of principal and agent,
master and servant, or employer or proprietor
and independent contractor, Gorton v. Doty, 57
Idaho 792, 69 P.2d 136, 139.
Properly speaking, agency relates to commer-
cial or business transactions. Humble Oil & Re-
fining Co. v. Bell, Tex.Civ.App., 172 S.W.2d 800,
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AGENT
803, and frequently is used in connection with an
arrangement which does not: in law amount to
an agency, as where the essence of an arrange-
ment is bailment or sale, as in the case of a sale
agency exclusive in certain territory. State Corn-
pensation Ins. Fund v. Industrial Accident Corn-
mission, 216 Cal. 351, 14 P.2d 306, 310.
It also designates a place at which business of
company or individual is transacted by an agent.
Johnson Freight Lines v. Davis, 170 Tenn. 177, 93
S.W.2d 637, 639.
The relation created by express or implied contract or
by law, whereby one party delegates the transaction of
some lawful business with more or less discretionary power
to another, who undertakes to manage the affair and ren-
der to him an account thereof. State ex rel. Cities Service
Gas Co. v. Public Service Commission, 337 Mo. 809, 85
S.W.2d 890, 894. Or where one person confides the man-
agement of some affair, to be transacted on his account,
to other party. 1 Liverm. Prin. & Ag. 2. Or one party
is authorized to do certain acts for, or in relation to the
rights or property of the other. But means more than
tacit permission, and involves request, instruction, or com-
mand. Klee v. U. S., C.C.A.Wash., 53 F.2d 58, 61. Being
the consensual relation existing between two persons, by
virtue of which one is subject to other's control. Tarver,
Steele & Co. v. Pendleton Gin Co., Tex.Civ.App., 25 S.W.2d
156, 159.
Actual agency. Exists where the agent is really em-
ployed by the principal. Weidenaar v. N. Y. Life Ins. Co.,
36 Mont. 592, 94 P. 1, 6.
Agency by estoppel. One created by operation of law
and established by proof of such acts of the principal as
reasonably lead to the conclusion of its existence. Sigel-
Campion Live Stock Commission Co. v. Ardohain, 71 Colo.
410. 207 P. 82, 83. Arises where principal, by negligence
in failing to supervise agent's affairs, allows agent to exer-
cise powers not granted to him, thus justifying others in
believing agent possesses requisite authority. Reifsnyder
v. Dougherty, 301 Pa. 328, 152 A. 98, 100. Though princi-
pal have no notice of agent's conduct, Dispatch Printing
Co. v. National Bank of Commerce, 109 Minn. 440, 124 N.W.
236, 50 L.R.A.,N.S., 74.
Agency of necessity. A term sometimes applied to the
kind of implied agency which enables a wife to procure
what is reasonably necessary for her maintenance and sup-
port on her husband's credit and at his expense, when he
fails to make proper provision for her necessities. Bost-
wick v. Brower, 49 N.Y.S. 1046, 22 Misc. 709.
Deed of agency. A revocable and voluntary trust for
payment of debts. Wharton.
Exclusive agency. Defined as an agreement by owner
that during life of contract he will not sell property to a
purchaser procured by another agent, which agreement
does not preclude owner himself from selling to a pur-
chaser of his own procuring, while a contract giving a
broker "exclusive sale" is more than such exclusive agency,
and is an agreement by the owner that he will not sell the
property during the life of the contract to any purchaser
not procured by the broker in question. Harris v. McPher-
son, 97 Conn. 164, 115 A. 723, 724, 24 A.L.R. 1530; Harris
& White v. Stone, 137 Ark. 23, 207 S.W. 443, 444.
General agency. That which exists when there is a dele-
gation to do all acts connected with a particular trade,
business or employment. Hinkson v. Kansas City Life Ins.
Co., 93 Or. 473, 183 P. 24, 29. It implies authority on the
part of the agent to act without restriction or qualification
in all matters relating to the business of his principal.
Schwartz v. Maryland Casualty Co., 82 N.H. 177, 131 A.
352, 353.
Implied agency. One created by act of parties and
deduced from proof of other facts. Sigel-Campion Live
Stock Commission Co. v. Ardohain, 71 Colo. 410, 207 P. 82,
83. It is an actual agency, proved by deductions or infer-
ences from other facts, and third party need have no
knowledge of the principal's acts, nor have relied on them.
Kentucky-Pennsylvania Oil & Gas Corporation v. Clark, 247
Ky. 438, 57 S.W.2d 65.
Ostensible agency. One which exists where the principal
intentionally or by want of ordinary care causes a third
person to believe another to be his agent who is not really
employed by him. Weidenaar v. N. Y. Life Ins. Co., 36
Mont. 592, 94 P. 1, 6. See, also, Agency by Estoppel.
AGENCY COUPLED WITH INTEREST. Interest
in continued existence of power' or authority to
act with reference to business, where secured by
contract and based on consideration moving from
agent to principal looking to exercise of power as
means of reimbursement, creates "agency coupled
with an interest." Bowling v. National Convoy &
Trucking Co., 101 Fla. 634, 135 So. 541, 544.
Agent must have an interest or estate in the
thing to be disposed of or managed under the
power. Eduardo Fernandez Y Compania v. Lon-
gino & Collins, 199 La. 343, 6 So.2d 137, 142, 143.
AGENCY RELATIONSHIP. An employment for
purpose of representation in establishing legal re-
lations between principal and third persons. Bla-
bon v. Hay, 269 Mass. 401, 169 N.E. 268, 271.
AGENDA. Memoranda of things to be done, as
items of business or discussion to be brought up
at a meeting; a program consisting of such items.
Webster. Baton Rouge Bldg. Trades Council v.
T. L. James & Co., 201 La. 749, 10 So.2d 606, 619.
AGENESIA. In medical jurisprudence, impoten-
tia generandi; sexual impotence; incapacity for
reproduction, existing in either sex, and whether
arising from structural or other causes.
AGENFRIDA. Sax. The true master or owner
of a thing. Spelman.
AGENHINA. In Saxon law, a guest at an inn,
who, having stayed 'there for three nights, was
then accounted one of the family. Cowell.
AGENS. Lat. An agent, a conductor, or manag-
er of affairs. Distinguished from factor, a work-
man. A plaintiff. Fleta, lib. 4, c. 15, § 8.
AGENT. A person authorized by another to act
for him, one intrusted with another's business.
Downs v. Delco-Light Co., 175 La. 242, 143 So. 227.
One who represents and acts for another under
the contract or relation of agency, q. v. Fowler
v. Cobb, Mo.App., 232 S.W. 1084. A business rep-
resentative, whose function is to bring about, mod-
ify, affect, accept performance of, or terminate
contractual obligations between principal and
third persons. Saums v. Parfet, 270 Mich. 165, 258
N.W. 235. One who undertakes to transact some
business, or to manage some affair, for another,
by the authority and on account of the latter, and
to render an account of it. 1 Livermore, Ag. 67.
See Co.Litt. 207; 1 B. & P. 316; Thomas B. Jeffrey
Co. v;Lockridge, 173 Ky. 282, 190 S.W. 1103, 1105.
One who acts for or in place of another by author-
ity from him; a substitute, a deputy, appointed by
principal with power to do the things which prin-
cipal may do. Stephenson v. Golden, 279 Mich.
710, 276 N.W. 849. One who deals not only with
things, as does a servant, but with persons, using
his own discretion as to means, and frequently
establishing contractual relations between his
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AGENT
principal and third persons. Rendleman v. Niag-
ara Sprayer Co., D.C.I11., 16 F.2d 122, 124. See,
also, State v. Bond, 94 W.Va. 255, 118 S.E. 276, 279.
Agent and patient. A phrase indicating the state of a
person who is required to do a thing, and is at the same
time the person to whom it is done ; as, when a man is
indebted to another, and he appoints him his executor,
required to pay the debt in his capacity of executor, and
entitled to receive it in his own right. Termes de la Ley.
Apparent agent or ostensible agent. One whom the prin-
cipal, either intentionally or by want of ordinary care,
induces third persons to believe to be his agent, though he
has not, either expressly or by implication, conferred
authority on him. Ware v. Home Mut. Ins. Ass'n of Iowa,
135 Neb. 329, 281 N.W. 617, 620. A person who, whether
or not authorized, reasonably appears to third person,
because of manifestations of another, to be authorized to
act as agent for such other. Hansche v. A. J. Conroy,
Inc., 222 Wis. 553, 269 N.W. 309, 312.
Diplomatic agent. A person employed by a sovereign to
manage his private affairs, or those of his subjects in his
name, at the court of a foreign government. Wolff, Inst.
Nat. § 1237.
General agency business. One not engaged as agent for
single firm or person, but holding himself out to public as
being engaged in business of being agent. Comer v. State
Tax Commission of New Mexico, 41 N.M. 403, 69 P.2d 936.
General agent. One employed in his capacity as a pro-
fessional man or master of an art or trade, or one to whom
the principal confides his whole business or all transactions
or functions of a designated class ; or he is a person who
is authorized by his principal to execute all deeds, sign all
contracts, or purchase all goods, required in a particular
trade, business, or employment. See Story, Ag. § 17;
Thompson .v. Michigan Mut. Life Ins. Co., 56 Ind.App. 502,
105 N.E. 780, 782; Little v. Minneapolis Threshing Mach.
Co., 166 Iowa 651, 147 N.W. 872, 873. One empowered to
transact all business of principal at any particular time or
any particular place, a general manager. Abuc Trading &
Sales Corporation v. Jennings, 151 Md. 392, 135 A. 166, 173.
An agent to manage buildings and lease and collect the
rents, Daniel v. Pappas, C.C.A.Okl., 16 F.2d 880, 883. An
agent empowered to enter into contracts without consult-
ing insurer, notwithstanding restriction of his territory,
London & Lancashire Ins. Co. v. McWilliams, 215 Ala. 481,
110 So. 909, 910.
Local agent. One appointed to act as the representative
of a corporation and transact its business generally (or
business of a particular character) at a given place or
within a defined district. See Frick Co. v. Wright, 23 Tex.
Civ.App. 340, 55 S.W. 608; Moore v. Freeman's Nat. Bank,
92 N.C. 594.
Managing agent. A person who is invested with general
power, involving the exercise of judgment and discretion,
as distinguished from an ordinary agent or employee, who
acts in an inferior capacity, and under the direction and
control of superior authority, both in regard to the extent
of the work and the manner of executing the same. Redd-
ington v. Mariposa Land & Min. Co., 19 Hun, N.Y., 405;
Taylor v. Granite State Prov. Ass'n, 32 N.C. 992, 136 N.Y.
343, 32 Am.St.Rep. 749. One who has exclusive supervision
and control of some department of a corporation's busi-
ness, the management of which requires of such person
the exercise of independent judgment and discretion, and
the exercise of such authority that it may be fairly gaid
that service of summons upon him will result in notice to
the corporation. Federal Betterment Co. v. Reeves, 73
Kan. 107, 84 P. 560, 4 L.R.A.,N.S., 460; Hatinen v.
Payne, 150 Minn. 344, 185 N.W. 386, 387. As used in sec-
tion 4274, Wilson's Statutes of Oklahoma 1903, Ann., an
agent whose agency extends to all the transactions of the
corporation within the state; one who has or is engaged
in the management of the business of the corporation, in
distinction from the management of a local or particular
branch or department of said business. Waters Pierce Oil
Co. v. Foster, 52 Okl. 412, 153 P. 169, 171.
Mercantile agents. Agents employed for the sale of
goods or merchandise are called "mercantile agents," and
are of two principal classes,—brokers and factors (q. v.);
a factor is sometimes called a "commission agent," or
"commission merchant." Russ. Mere. Ag. 1.
Practice of the House of Lords and Privy Council. In
appeals, solicitors and other persons admitted to practice
in those courts in a similar capacity to that of solicitors
in ordinary courts, are technically called "agents." Macph.
Priv. Coun. 65.
Private agent. An agent acting for an individual in his
private affairs; as distinguished from a public agent, who
represents the government in some administrative capac-
ity.
Public agent. An agent of the public, the state, or the
government; a person appointed to act for the public in
some matter pertaining to the administration of govern-
ment or the public business. See Story, Ag. § 302; White-
side v. United States, 93 U.S. 254, 23 L.Ed. 882.
Real-estate agent. Any person whose business it is to
sell, or offer for sale, real estate for others, or to rent
houses, stores, or other buildings, or real estate, or to col-
lect rent for others. Act July 13, 1866, c. 184, § 9, par. 25;
14 St. at Large, 118. Carstens v. McReavy, 1 Wash.St. 359,
25 P. 471.
A special agent is one employed to conduct a particular
transaction or piece of business for his principal or author-
ized to perform a specified act. Hinkson v. Kansas City
Life Ins. Co., 93 Or. 473, 183 P. 24, 29; Pettijohn v. St.
Paul Fire & Marine Ins. Co., 100 Kan. 482. 164 P. 1096.
1097; Hoffman v. Marano, 71 Pa.Super.Ct. 26, 28.
AGENTES ET CONSENTIENTES PART PCENA
PLECTENTUR. Acting and consenting parties
are liable to the same punishment. 5 Coke, 80.
AGER. Lat. A field; land generally. A portion
of land inclosed by definite boundaries. Munici-
pality No. 2 v. Orleans Cotton Press, 18 La. 167,
36 Am.Dec. 624. In old English law, an acre (q.v.). Spelman.
AGGER. Lat. In the civil law, a dam, bank or
mound. Cod. 9, 38; Townsh.Pl. 48.
AGGRAVATED ASSAULT. The term has no tech-
nical and definite common law meaning. In re
Burns, C.C.Ark., 113 F. 987; People v. Ochotski,
115 Mich. 601, 73 N.W. 889. The term is one which
is employed to describe an assault which has, in
addition to the mere intent to commit it, another
object which is also criminal, Brimhall v. State,
31 Ariz. 522, 255 P. 165, 53 A.L.R. 231; or to in-
clude all those species of assault which, for vari-
ous reasons, have come to be regarded as more
heinous than common assault, State v. Jones, 133
S.C. 167, 130 S.E. 747; or which have been made
the subject of special legislative provisions, Daf-
fan v. State, Tex.Cr.App., 21 S.W.2d 301 and Nje-
cick v. State, 178 Wis. 94, 189 N.W. 147.
An assault where the means or instrument used to
accomplish the injury is highly dangerous or where assail-
ant has some ulterior and malicious motive in committing
assault other than a mere desire to punish injured person.
Strickbine v. State, 201 Ark. 1031, 148 S.W.2d 180, 181, 182 ;
when committed with a deadly weapon under circum-
stances not amounting to an intent to murder, Myers v.
State, 72 Tex.Cr.R. 630, 163 S. W. 432 ; or when the instru-
ment or means used is such as inflicts disgrace upon the
person assaulted, Cirul v. State, 83 Tex.Cr.R. 8, 200 S.W.
1088; Scott v. State, 73 Tex.Cr.R. 622, 166 S. W. 729, 730
(indecent and improper fondling of the person). In Ari-
zona, aggravated assault is different from simple assault
only by infliction of serious bodily injury, Brimhall v.
State, 31 Ariz. 522, 255 P. 165, 166, 53 A.L.R. 231.
AGGRAVATING. Passenger ejected from plane.
Delta Air Corporation v. Porter, 70 Ga.App. 152,
27 S.E.2d 758, 762.
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AGIST
AGGRAVATION. Any circumstance attending
the commission of a crime or tort which increases
its guilt or enormity or adds to its injurious
consequences, but which is above and beyond the
essential constituents of the crime or tort itself.
Matter of aggravation, correctly understood, does not
consist in acts of the same kind and description as those
constituting the gist of the action, but in something done
by the defendant, on the occasion of committing the tres-
pass, which is, to some extent, of a different legal char-
acter from the principal act complained of. Hathaway v.
Rice, 19 Vt. 107. So on an indictment for murder the pris-
oner may be convicted of manslaughter, for the averment
of malice aforethought is merely matter of aggravation.
Co.Litt. 282 a.
In pleading, the introduction of matter into the
declaration which tends to increase the amount of
damages, but does not affect the right of action
itself. Steph.P1. 257; 12 Mod. 597.
AGGRAVATION OF THE DISABILITY. Refers
to the course or progress of the workman's condi-
tion resulting from the specific injury for which
an award or arrangement of compensation has
been made. Keefer v. State Industrial Accident
Commission, 171 Or. 405, 135 P.2d 806, 809.
AGGREGATE. Entire number, sum, mass, or
quantity of something; amount; complete whole,
and one provision under will may be the aggre-
gate if there are no more units to fall into that
class. In re Curley's Will, 151 Misc. 664, 272 N.
Y.S. 489. Composed of several; consisting of
many persons united together; a combined whole.
1 Bl.Comm. 469.
AGGREGATE CORPORATION. See Corporation.
AGGREGATES. Name for materials consisting
largely of rock, gravel and sand used for construc-
tion and surfacing of highways or, as a compo-
nent part, in forming concrete for such construc-
tion. Pioneer Gravel Equipment Mfg. Co. v. Dia-
mond Iron Works, C.C.A.Minn., 72 F.2d 161.
AGGREGATIO MENTIUM. The meeting of
minds. The moment when a contract is com-
plete. A supposed derivation of the word "agree-
ment," q. v.
AGGREGATION. In law of patents, it means
that the elements of a claimed combination are
incapable of co-operation to produce a unitary re-
sult, and in its true sense does not need prior art
patents to support it. National Popsicle Corpo-
ration v. Harvey, D.C.Pa., 6 F.Supp. 784, 786.
It does not imply mechanical interaction of parts, but
only union of all elements of invention to realize single
purpose. Simplex Piston Ring Co. of America v. Horton-
Gallo-Creamer Co., C.C.A.Conn., 61 F.2d 748, 750. A com-
bination which merely brings together two or more func-
tions to be availed of independently of each other does not
represent "invention" but constitutes mere "aggregation.",
Hemming v. S. S. Kresge Co., D.C.Conn., 24 F.Supp. 981,
983. The assembly of old elements, in a device in which
each performs the same function in the same way as it did
when used alone, without mutuality of action, interaction,
or co-operation, is mere "aggregation" not involving inven-
tion. In re Smith, 57 App.D.C. 204, 19 F.2d 678, 679.
AGGRESSOR. One who first employs hostile
force. Penn v. Henderson, 174 Or. 1, 146 P.2d
"160, 766. The party who first offers violence or
offense. He who begins a quarrel or dispute, ei
ther by threatening or striking another. See Wil-
kie v. State, 33 Okl.Cr. 225, 242 P. 1057, 1059.
AGGRIEVED. Having suffered loss or injury;
damnified; injured.
AGGRIEVED PARTY. One whose legal right is
invaded by an act complained of, or whose pe-
cuniary interest is directly affected by a decree
or judgment. Glos v. People, 259 Ill. 332, 102 N.E.
763, 766, Ann.Cas.1914C, 119. See next topic.
One whose right of property may be established
or divested. McFarland v. Pierce, 151 Ind. 546, 45
N.E. 706. The word "aggrieved" refers to a sub-
stantial grievance, a denial of some personal or
property right, or the imposition upon a party of
a burden or obligation. Roullard v. McSoley, 54
R.I. 232, 172 A. 326, 327. Injured in a legal sense.
In re Donnelly's Estate, 55 S.D. 426, 226 N.W. 563,
565.
Adoption, Appeal of Cummings, 126 Me. 111, 136 A. 662,
663; disbarment, State v. Hunter, 152 Tenn. 233, 276 S. W.
639, 640; bar association, State v. Huddleston, 173 Ark.
686, 293 S.W. 353, 358; contra, disciplinary proceedings; In
re Dolphin, 240 N.Y. 89, 147 N.E. 538, 539; lunacy inquisi-
tion, Commonwealth v. Davidson, 269 Pa. 218, 112 A. 115.
One 'against whom error has been committed, Kinealy v.
Macklin, 67 Mo. 95. Or one against whom an appealable
order or judgment has been entered. Ely v. Frisbie, 17
Cal. 260. Any party having an interest recognized by law
in the subject-matter, which interest is injuriously affected
by judgment. Hornbeck v. Richards, 80 Mont. 27, 257 P.
1025, 1026. A complainant who has received less than the
relief demanded, or a defendant who has not been
accorded the full amount of his set-off or counterclaim.
Blanchard v. Neill, 83 N.J.Eq. 446, 91 A. 811. See, also,
Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080,
1081. One under necessity of answering or replying to
irrelevant and redundant matter in a pleading. Shea v.
Kiely, Sup., 167 N.Y.S. 570, 572.
AGILD. In Saxon law, free from penalty, not
subject to the payment of gild, or weregild; that
is, the customary fine or pecuniary compensation
for an offense. Spelman; Cowell.
AGILER. In Saxon law, an observer or informer.
AGILLARIUS. L. Lat. In old English law, a
hayward, herdward, or keeper of the herd of cat-
tle in a common field. Cowell.
AGIO. In commercial law, a term used to ex-
press the difference in point of value between
metallic and paper money, or between one sort of
metallic money and another. McCul.Dict.
An Italian word for accommodation.
AGIOTAGE. A speculation on the rise and fall
of the public debt of states, or the public funds.
The speculator is called "agioteur."
AGIST. In ancient law it meant to take in and
give feed to the cattle of strangers in the king's
forest, and to collect the money due for the same
to the king's use. Spelman; Cowell.
In modern law it means to take in cattle to feed,
or pasture, at a certain rate of compensation.
Bank of Tehama County v. Federal Realty Co., 2
Cal.2d 333, 40 P.2d 507, 509. See Agistment.
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AGISTATIO
AGISTATIO ANIMALIUM IN FORESTA. The
drift or numbering of cattle in the forest.
AGISTER. See Agistor.
AGISTERS, or GIST TAKERS. Officers appoint-
ed to look after cattle, etc. See Williams, Com-
mon, 232.
AGISTMENT. The taking and feeding of other
men's cattle in the king's forest, or on one's own
land, at a certain rate. Bank of Tehama County
v. Federal Realty Co., 2 Cal.2d 333, 40 P.2d 507,
509. Also the profit or recompense for such pas-
turing of cattle. Williams v. Miller, 68 Cal. 290,
9 Pac. 166. A species of bailment. Patchen-
Wilkes Stock Farm Co. v. Walton, 166 Ky. 705, 179
S.W. 823.
In canon law it is a composition or mean rate
at which some right or due might be reckoned.
There is also agistment of sea-banks, where
lands are charged with a tribute to keep out the
sea; and terra agistatce are lands whose owners
must keep up the sea-banks. Holthouse.
Tithe of Agistment was a small tithe paid to
the rector or vicar on cattle or other produce of
grass lands. It was paid by the occupier of the
land and not by the person who put in his cattle
to graze. Rawle, Exmoor 31.
AGISTOR. One who takes in horses or other ani-
mals to pasture at certain rates. Story, Bailm. §
443; Cox v. Chase, 99 Kan. 740, 163 P. 184, 186.
An officer who had the charge of cattle pastured
for a certain stipulated sum in the king's forest
and who collected the money paid for them.
AGITATOR. One who stirs up; excites; ruffles;
perturbs. One who incessant advocates a social
change.
Labor agitator. One actively engaged in promoting the
interests of the laboring men. The term does not imply
the use of unlawful or improper means. Wabash R. Co.
v. Young, 69 N.E. 1003, 1005, 1006, 162 Ind. 102, 4 L.R.A.,
N.S., 1091.
Seditious agitator. A disturber of the public peace, a
subverter of just laws, and a bad citizen. Wilkes v.
Shields, 64 N.W. 921, 62 Minn. 426, 427.
AGNATES. In the law of descents, relations by
the father, or on the father's side. This word
is used in the Scotch law, and by some writers as
an English word, cqrresponding with the Latin
agnati, (q. v.) Ersk.Inst. b. 1, tit. 7, § 4.
AGNATI. In Roman law, the term included all
the cognates who trace their connection exclusive-
ly through males.
A table of cognates is formed by taking each lineal
ancestor in turn and including all his descendants of both
sexes in the tabular view. If, then, in tracing the various
branches of such a genealogical table or tree, we stop
whenever we come to the name of a female, and pursue
that particular branch or ramification no further, all who
remain after the descendants of women have been excluded
are agnates, and their connection together is agnatic rela-
tionship. Maine, Anc. Law, 142.
All persons are agnatically connected together who
are under the same patria potestas, or who have been
under it, or who might have been under it if their lineal
ancestor had lived long enough to exercise his empire.
Maine, Anc. Law, 144.
The agnate family consisted of all persons living at the
same time, who would have been subject to the patris
potestas of a common ancestor, if his life had been con-
tinued to their time. Hadl.Rom.Law, 131.
Cognates were all persons who could trace their blood to
a single ancestor or ancestress, and agnates were those
cognates who traced their connection exclusively through
males. Maine, Anc. Law. Between agnati and cognati
there is this difference : that, under the name of agnati,
cognati are included, but not 6 converso; for instance, a
father's brother, that is, a paternal uncle, is both agnatus
and cognatus, but a mother's brother, that is, a maternal
uncle, is a cognatus but not agnatus. (Dig. 38, 7, 5, pr.)
Burrill.
AGNATIC. [From agnati, q. v.] Derived from
or through males. 2 Bl.Comm. 236.
AGNATIO. In the civil law, relationship on the
fathers' side; the relationship of agnati; agna-
tion. Agnatio a patre est. Inst. 3, 5, 4; Id. 3, 6, 6.
AGNATION. Kinship by the father's side. See
Agnates; Agnati.
AGNOMEN, Lat. An additional name or title;
a nickname. A name or title which a man gets by
some action or peculiarity; the last of the four
names sometimes given a Roman. Thus, Scipio
Africanus, (the African,) from his African vic-
tories. Ainsworth; Calvinus, Lex. See Nomen.
AGNOMINATION. A surname; an additional
name or title; agnomen.
AGNUS DEL Lat. Lamb of God. A piece of
white wax, in a flat, oval form, like a small cake,
stamped with the figure of a lamb, and consecrat-
ed by the pope. Cowell.
AGONY. Violent physical pain or mental dis-
tress. City of Chicago v. McLean, 133 Ill. 148,
24 N.E. 527, 8 L.R.A. 765.
AGRAPHIA. See Aphasia.
AGRARIAN. Relating to land, or to a division or
distribution of land; as an agrarian law.
AGRARIAN LAWS. In Roman law, laws for the
distribution among the people, by public author-
ity, of the lands constituting the public domain,
usually territory conquered from an enemy.
In common parlance the term is frequently ap-
plied to laws which have for their object the more
equal division or distribution of landed property;
laws for subdividing large properties and increas-
ing the number of landholders.
AGRARIUM. A tax upon or tribute payable out
of land.
AGREAMENTUM. In old English law, agree-
ment; an agreement. Spelman.
AGREE. To concur; come into harmony; give
mutual assent; unite in mental action; exchange
promises; make an agreement; arrange; to settle.
Mickleson v. Gypsy Oil Co., 110 Okl. 117, 238 P.
194, 198. Consent. Smith v. Jones, 185 Ga. 236,
194 S.E. 556, 560. Harmonize or reconcile. "You
will agree your books." 8 Coke, 67. Concur or
acquiesce in; approve or adopt. Agreed, agreed
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AGREEMENT
to, are frequently used in the books, (like accord,)
to show the concurrence or harmony of cases.
Agreed per curiam is a common expression.
Usually implies some contractual undertaking.
In re Gray's Estate, 160 Misc. 710, 290 N.Y.S. 603,
605. To grant or covenant, as when a grantor
agrees that no building shall be erected on an ad-
joining lot; Hogan v. Barry, 143 Mass. 538, 10 N.
E. 253; or a mortgagor agrees to cause all taxes
to be paid; Mackay v. Truchon, 171 Mo.App. 42,
153 S.W. 502, 503.
AGREt. In French law, a person authorized to
represent a litigant before the Tribunals of Com-
merce. If such person be a lawyer, he is called
an avocat-agree. Coxe, Manual of French Law.
AGREEANCE. In Scotch law, agreement; an
agreement or contract.
AGREED. Settled or established by agreement.
This word in a deed creates a covenant.
It is a technical term, synonymous with "contracted,"
McKisick v. McKisick, Meigs Tenn. 433. It means, ex vi
termini, that it is the agreement of both parties. Aikin v.
Albany, V. & C. R. Co., 26 Barb.N.Y. 298.
AGREED CASE. Stipulations signed by litigants'
attorneys, constituted an "agreed case". In re
Davis Bros. Stone Co., 245 Wis. 130, 13 N.W.2d
512, 515.
Evidence presented by stipulation that stated facts con-
stituted entire evidence is not an "agreed case". Struble-
Werneke Motor Co. v. Metropolitan Securities Corporation,
93 Ind.App. 416, 178 N.E. 460, 462. Nor is an agreed state-
ment of facts on which a case is submitted in lieu of evi-
dence. Byers v. Essex Inv. Co., 281 Mo. 375, 219 S. W. 570,
571; Reddick v. Board of Com'rs .of Pulaski County, 14
Ind.App. 598, 41 N.E. 834.
AGREED ORDER. The only difference between
an agreed order and one which is made in the due
course of the proceedings in an action is that in
the one case it is agreed to, and in the other it
is made as authorized by law. Claflin v. Gibson,
21 Ky.Law Rep. 337, 51 S.W. 439.
AGREED STATEMENT OF FACTS. A statement
of facts, agreed on by the parties as true and
correct, to be submitted to a court for a ruling on
the law of the case. United States Trust Co. v.
New Mexico, 183 U.S. 535, 22 Sup.Ct. 172, 46 L.Ed.
315. See Case Stated.
Where testimony was contradictory, stipulation relating
to testimony did not constitute an "agreed state of facts".
McPherson v. State Industrial Accident Commission, 169
Or. 190, 127 P.2d 344, 346.
AGREEMENT. A coming or knitting together of
minds; a corning together in opinion or determi-
nation; the coming together in accord of two
minds on a given proposition; in law a concord
of understanding and intention between two or
more parties with respect to the effect upon their
relative rights and duties, of certain past or fu-
ture facts or performances; the consent of two or
more persons concurring respecting the transmis-
sion of some property, right, or benefits, with the
view of contracting an obligation, a mutual ob-
ligation. Bac.Abr.; 'Rocha v. Hulen, 6 Cal.App.2d
245, 44 P.2d 478, 482.
The act of two or more persons, who unite in
expressing a mutual and common purpose, with
the view of altering their rights and obligations.
The union of two or more minds in a thing done
or to be done; a mutual assent to do a thing.
Corn. Dig. "Agreement," A 1. See Aggregatio
Mentium. Carter v. Prairie Oil & Gas Co., 58 Okl.
365, 160 P. 319, 322. A compact between parties
who are thereby subjected to the obligation or to
whom the contemplated right is thereby secured.
People v. Mills, 160 Misc. 730, 290 N.Y.S. 48, 52.
Although often used as synonymous with "contract,"
Douglass v. W. L. Williams Art Co., 143 Ga. 846, 85 S.E.
993, it is a wider term than "contract" (Anson, Cont. 4.)
An agreement might not be a contract, because not fulfill-
ing some requirement. And each of a series of mutual
stipulations or constituent clauses in a contract might be
denominated an "agreement." The meaning of the con-
tracting parties is their agreement. Whitney v. Wyman,
101 U.S. 396, 25 L.Ed. 1050. "Agreement" is seldom
applied to specialties. Pars.Cont. 6.
"Agreement" is not synonymous with "promise" or
"undertaking." It signifies a mutual contract, on consid-
eration. Andrews v. Pontue, 24 Wend.N.Y. 285; Wain v.
Warlters, 5 East, 10; wherein parties must have a distinct
intention common to both, and without doubt or difference.
Blake v. Mosher, 11 Cal.App.2d 532, 54 P.2d 492, 494.
The writing or instrument which is evidence of
an agreement.
Classification
Conditional agreements, the operation and effect of
which depend upon the existence of a supposed state of
facts, or the performance of a condition, or the happening
of a contingency.
Executed agreements, which have reference to past
events, or which are at once closed and where nothing fur-
ther remains to be done by the parties.
Executory agreements are such as are to be performed
in the future. They are commonly preliminary to other
more formal or important contracts or deeds, and are usu-
ally evidenced by memoranda, parol promises, etc.
Express agreements are those in which the terms and
stipulations are specifically declared and avowed by the
parties at the time of making the agreement.
Implied agreement. (1) Implied in fact. One inferred
from the acts or conduct of the parties, instead of being
expressed by them in written or spoken words. Baltimore
Mail S. S. Co. v. U. S., C.C.A.Md., 76 F.2d 582, 585. (2)
Implied in law; more aptly termed a constructive or quasi
contract. One where, by fiction of law, a promise is
imputed to perform a legal duty, as to repay money
obtained by fraud or duress. Baltimore Mail S. S. Co. v.
U. S., C.C.A.Md., 76 F.2d 582, 585. One inferred by the
law where the conduct of the parties with reference to the
subject-matter is such as to induce the belief that they
intended to do that which their acts indicate they have
done. Baltimore & 0. R. Co. v. U. S., 261 U.S. 592, 43 S.Ct.
425, 67 L.Ed. 816; Cuneo v. De Cuneo, 24 Tex.Civ.App. 436,
59 S.W. 284.
Parol agreements. Such as are either by word of mouth
or are committed to writing, but are not under seal. The
common law draws only one great line, between things
under seal and not under seal. Wharton.
In agreement means in conformity, or harmony'
with. Brown Real Estate Co. v. Lancaster Coun-
ty, 110 Neb. 665, 194 N.W. 897, 898.
AGREEMENT FOR INSURANCE. An agree-
ment often made in short terms preliminary to
the filling out and delivery of a policy with spe-
cific stipulations.
AGREEMENT NOT TO BE PERFORMED WITH-
IN A YEAR. An agreement that necessarily must
require more than year for performance. Marble
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AGREEMENT
v. Town of Clinton, Mass., 9 N.E.2d 522, 524, 111
A.L.R. 1101. Incapable of performance within
one year. Street v. Maddux, Marshall, Moss &
Mallory, 58 App.D.C. 42, 24 F.2d 617, 619.
AGREEMENT OF SALE; AGREEMENT TO
SELL. An agreement of sale may imply not
merely an obligation to sell, but an obligation on
the part of the other party to purchase (cf. Loud
v. St. Louis Union Trust Co., 313 Mo. 552, 281
S.W. 744, 755) while an agreement to sell is sim-
ply an obligation on the part of the vendor or
promisor to complete his promise of sale; Treat
v. White, 181 U.S. 264, 21 Sup.Ct. 611, 45 L.Ed.
853. It is a contract to be performed in future,
and, if fulfilled, results in a sale; it is prelimi-
nary to sale and is not the sale. Callender v.
Crossfield Oil Syndicate, 84 Mont. 263, 275 P. 273,
276.
AGREEMENT TO SELL LAND. A contract to be
performed in future which if fulfilled results in
sale. In re Frayser's Estate, 401 Ill. 364, 82 N.E.
2d 633, 638.
AGREER. Fr. In French marine law, to rig or
equip a vessel. Ord. Mar. liv. 1, tit. 2, art. 1.
AGREZ. Fr. In French marine law, the rig-
ging or tackle of a vessel. Ord. Mar. liv. 1, tit. 2,
art. 1; Id. tit. 11, art. 2; Id. liv. 3, tit. 1, art. 11.
AGRI. Arable lands in common fields.
AGRI LIMITATI.
In Roman law, lands belonging to the state by
right of conquest, and granted or sold in plots.
Sandars, Just.Inst., 5th Ed., 98.
ln modern civil law, lands whose boundaries
are strictly limited by the lines of government
surveys. Hardin v. Jordan, 140 U.S. 371, 11 Sup.
Ct. 808, 35 L.Ed. 428.
AGRICULTURAL. Pertaining to, or dealing with,
agriculture; also, characterized by or engaged in
farming as the leading pursuit. Oak Woods Cem-
etery Ass'n v. Murphy, 383 Ill. 301, 50 N.E.2d 582,
587.
AGRICULTURAL CHEMISTRY. A study of
products of the soil, especially foods, their nutri-
tive value, their intensive production, study of
composition of soil, chemical methods of fertiliza-
tion, prevention or amelioration of plant diseases,
extinction of insects and other detriments to agri-
culture, and in general study of animal and plant
life with relation to the science of chemistry. In
re Frasch's Estate, 125 Misc.Rep. 381, 211 N.Y.S.
635, 638.
AGRICULTURAL COMMODITIES. Generally
synonymous with agricultural or farm products,
and not including agricultural implements, Bowles
v. Rock, D.C.Neb., 55 F.Supp. 865, 868; or com-
mercial fertilizer and ground and crushed lime-
stone, Stiver v. Holley, 215 Ind. 9, 17 N.E.2d 831,
832.
AGRICULTURAL EMPLOYMENT. Farm labor
synonymous, and includes all farm work and work
incidental thereto. Smythe v. Phoenix, 63 Idaho
585, 123 P.2d 1010, 1012.
AGRICULTURAL HOLDING. Land cultivated
for profit in some way. Within the meaning of
the English Agricultural Holdings act of 1883,
the term will not include natural grass lands.
Such lands are pastoral holdings. 32 S.J. 630.
AGRICULTURAL LABOR. Services performed
on farm, for owner or tenant. California Em-
ployment Commission v. Butte County Rice Grow-
ers Ass'n, Cal., 154 P.2d 892, 894. Broader in
meaning than farming or farm labor and includes
one engaged in horticulture. St. Louis Rose Co.
v. Unemployment Compensation Commission, 348
Mo. 1153, 159 S.W.2d 249, 250, and maintenance
work and similar service in employer's farm pack-
ing house. Latimer v. United States, D.C.Cal.,
52 F.Supp. 228, 234, 235, 236, 237. The science and
art of production of plants and animals useful
to man. Murphy v. Mid-West Mushroom Co., 350
Mo. 658, 168 S.W.2d 75, 77, 78.
AGRICULTURAL LANDS. A term used merely
to distinguish rural from urban or other prop-
erties. Eisenzimmer v. Bell, 75 N.D. 733, 32 N.W.
2d 891, 893.
Land may be assessable as "agricultural land" though it
be covered by native timber and underbrush, grass, and
weeds. Milne v. McKinnon, 32 S.D. 627, 144 N.W. 117, 118.
The term is synonymous with land "agricultural in char-
acter." State v. Stewart, 58 Mont. 1, 190 P. 129, 131.
AGRICULTURAL LIEN. A statutory lien in
some states to secure money or supplies advanced
to an agriculturist to be expended or employed
in the making of a crop and attaching to that
crop only. Jones-Phillips Co. v. McCormick, 174
N.C. 82, 93 S.E. 449, 452.
AGRICULTURAL PRODUCT. Things which
have a situs of their production upon the farm
and which are brought into condition for uses
of society by labor of those engaged in agricul-
tural pursuits as contradistinguished from manu-
facturing or other industrial pursuits. In re
Rodgers, Neb., 134 Neb. 832, 279 N.W. 800, 803.
That which is the direct result of husbandry and the
cultivation of the soil. The product in its natural unmanu-
factured condition. Getty v. Milling Co., 40 Kan. 281, 19
P. 617. It has been held not to include beef cattle; Davis
& Co. v. City of Macon, 64 Ga. 128, 37 Am.Rep. 60; but to
include forestry products; Northern Cedar Co. v. French,
131 Wash. 394, 230 P. 837, 846.
AGRICULTURAL PURSUITS. Every process and
step taken and necessary to the completion of a
finished farm product. Big Wood Canal Co. v.
Unemployment Compensation Division of Indus-
trial Accident Board, 61 Idaho 247, 100 P.2d 49, 51.
AGRICULTURAL SOCIETY. One for promoting
agricultural interests, such as improvement of
land, implements, and brands of cattle. Crete
Mills v. Nebraska State Board of Agriculture, 132
Neb. 244, 271 N.W. 684, 688; or for giving agricul-
tural fairs; Town of West Hartford v. Connecticut
Fair Ass'n, 88 Conn. 627, 92 A. 432.
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AIDER
AGRICULTURAL WORKER. Tasks incidental to
agricultural activities all are within the scope of
the employment of an "agricultural worker."
Melendez v. Johns, Ariz., 76 P.2d 1163, 1167.
AGRICULTURE. The art or science of cultivating
the ground, including the harvesting of crops,
and in a broad sense, the science or art of produc-
tion of plants and animals useful to man, includ-
ing in a variable degree, the preparation of these
products for man's use. In the broad sense, it in-
cludes farming, horticulture, forestry, together
with such subjects as butter, cheese, making
sugar, etc. Sancho v. Bowie, C.C.A.Puerto Rico,
93 F.2d 323, 324.
The cultivation of soil for food products or any other
useful or valuable growths of the field or garden tillage,
husbandry; also, by extension, farming, including any
industry practiced by a cultivator of the soil in connection
with such cultivation, as breeding and rearing of stock,
dairying, etc. The science that treats of the cultivation
of the soil. Stand. Diet. ; State v. Stewart, 58 Mont. 1, 190
P. 129, 131
"Agriculture" refers to the field or farm with all its
wants, appointments, and products, as distinguished from
"horticulture," which refers to the garden, with its less
important though varied products. Dillard v. Webb, 55
Ala. 468.
AGUSADURA. In ancient customs, a fee, due
from the vassals to their lord for sharpening
their plowing tackle.
AHTEID. In old European law, a kind of oath
among the Bavarians. Spelman. In Saxon law.
One bound by oath, q. d. "oathtied." From ath,
oath, and tied. Id.
AID. To support, help, assist, or strengthen.
Hines v. State, 16 Ga.App. 411, 85 S.E. 452, 454.
Act in cooperation with. Cornett v. Common-
wealth, 198 Ky. 236, 248 S.W. 540, 542.
Supplement the efforts of another. Anderson
v. Board of Medical Examiners, 117 Cal.App. 113,
3 P.2d 344, 346.
A person "aids" when being present at the time and
place he does some act to render aid to the actual perpe-
tration of the crime, though he takes no direct share in
its commission. State v. Johnson, 220 N.C. 773, 18 S.E.2d
358, 360.
This word must be distinguished from its synonym
"encourage," the difference being that the former connotes
active support and assistance. Although it may not import
necessary criminality in the act furthered. See Abet.
AID AND ABET. Help, assist, or facilitate the
commission of a crime, promote the accomplish-
ment thereof, help in advancing or bringing it
about, or encourage, counsel, or incite as to its
commission. State v. Lord, 42 N.M. 638, 84 P.2d
80, 86.
Implies knowledge. Winning v. Board of Dental Exam-
iners, 114 Cal.App. 658, 300 P. 866, 868.
At common law it consisted in being present at the time
and place, and doing some act to render aid to the actual
perpetrator of the crime, though without taking a direct
share in its commission. See 4 Bl.Comm. 34; State v.
Tally, 102 Ala. 25, 15 So. 722.
It comprehends all assistance rendered by words, acts,
encouragement, support, or presence, actual or construc-
tive, to render assistance if necessary. Johnson v. State, 21
Ala.App. 565, 110 So. 55; State v. Davis, 191 Iowa, 720, 183
N.W. 314, 316. But it is not sufficient that there is a mere
negative acquiescence not in any way made known to the
principal malefactor. People v. Barnes, 311 Ill. 559, 143
N.E. 445, 447. See Accessory; Abettor; Alder and Abet-
tor.
AID AND ASSIST. The words "aided and as-
sisted," as used in the statute prohibiting the sale
of intoxicating liquors, as regards the condemna-
tion or confiscation of vehicles, implies either
knowledge on the part of the owner that the
vehicle was being used for unlawful transporta-
tion, or such negligence or want of care as to
charge him with such knowledge or notice. In re
Gattina, 203 Ala. 517, 84 So. 760.
AID AND COMFORT. Help; support; assistance;
counsel; encouragement.
As an element in the crime of treason (see Constitution
of the United States, art. 3, § 3), the giving of "aid and
comfort" to the enemy may consist in a mere attempt. It
is not essential to constitute the giving of aid and com-
fort that the enterprise commenced should be successful
and actually render assistance. Young v. United States, 97
U.S. 39, 62, 24 L.Ed. 992. An act which intentionally
strengthens or tends to strengthen enemies of the United
States, or which weakens or tends to weaken power of the
United States to resist and attack such enemies. United
States v. Haupt, D.C.Ill., 47 F.Supp. 836, 839. Any inten-
tional act furthering hostile designs of enemies of the
United States. United States v. Haupt, D.C.Ill., 47 F.Supp.
836, 839.
AID BOND, See Bond.
AID OF THE KING. The king's tenant prays
this, when rent is demanded of him by others.
AID PRAYER. In English practice, a proceeding
formerly made use of, by way of petition in court,
praying in aid of the tenant for life, etc., from the
reversioner or remainderman, when the title to
the inheritance was in question. It was a plea in
suspension of the action. 3 Bl.Comm. 300.
AID SOCIETIES. See Benefit Societies.
AIDER. One who is actually or constructively
present at the commission of the offense and is a
"principal". State v. Bachmeyer, 247 Wis. 294,
19 N.W.2d 261, 263.
Mere proof of a defendant's presence at the time of the
commission of a criminal act is not sufficient to render
him an "alder". Gentry v. State, 65 Ga.App. 100, 15 S.E.
2d 464, 465.
AIDER AND ABETTOR. One who assists an-
other in the accomplishment of a common design
or purpose; he must be aware of, and consent to,
such design or purpose. Peats v. State, 213 Ind.
560, 12 N.E.2d 270, 277.
One who advises, counsels, procures, or encourages
another to commit a crime, himself being guilty of some
overt act or advocacy or encouragement of his principal,
actually or constructively present when crime is commit-
ted, and participating in commission thereof by some act,
deed, word, or gesture, Turner v. Commonwealth, 268 Ky.
311, 104 S.W.2d 1085, and sharing the criminal intent of
the principal. State v. Reedy, 97 W.Va. 549, 127 S.E. 24,
28. But one who incites or instigates the commission of a
felony when he is neither actually nor constructively pres-
ent is an "alder, abettor, or procurer" within the meaning
of a statute. Neal v. State, 104 Neb. 56, 175 N.W. 669, 670.
AIDER BY VERDICT. The healing or remission,
by a verdict rendered, of a defect or error in
pleading which might have been objected to before
verdict.
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ALDER
The presumption of the proof of all facts nec-
cessary to the verdict as it stands, coming to the
aid of a record in which such facts are not distinct-
ly alleged.
AIDING AN ESCAPE. Any overt act, intended
and useful to assist attempted or completed de-
parture of prisoner from lawful custody before
his discharge by due process of law. State v.
Navarro, 131 Me. 345, 163 A. 103, 104.
AIDS. In feudal law, originally mere benevo-
lences granted by a tenant to his lord, in times of
distress; but at length the lords claimed them as
of right.
They were principally three : (1) To ransom the lord's
person, if taken prisoner ; (2) to make the lord's eldest
son and heir apparent a knight; (3) to give a suitable
portion to the lord's eldest daughter on her marriage.
Abolished by 12 Car. II, c. 24.
Also, extraordinary grants to the crown by the
house of commons, which were the origin of the
modern system of taxation. 2 Bl.Comm. 63, 64.
A reasonable aid was a duty claimed by the lord of the
fee of his tenants, holding by knight service, to marry his
daughter, etc. Cowell.
AIEL (spelled also Ayel, Aile, Ayle, and Aieul).
L. Fr. A grandfather.
A writ which lieth where the grandfather was
seized in his demesne as of fee of any lands or
tenements in fee simple the day that he died, and
a stranger abateth or entereth the same day and
dispossesseth the heir.  Fitzh.Nat.Brev. 222;
Termes de la Ley; 3 Bla.Com. 186; 2 Poll. &
Maitl. 57. See Abatement of Freehold.
AIELESSE. A Norman French term signifying
"grandmother." Kelham.
AILE. A corruption of the French word aieul,
grandfather. See Aiel.
AILMENT. Commonly means indisposition of
body or mind, a slight illness. Mutual Life Ins.
Co. of New York v. Burton, 167 Tenn. 606, 72 S.
W.2d 778, 781.
But within meaning of an application for a benefit cer-
tificate, it is something which substantially impairs the
health of the applicant, materially weakens the vigor of
his constitution, or seriously deranges his vital functions,
thereby excluding chronic rheumatism. National Ameri-
cans v. Ritch, 121 Ark. 185, 180 S.W. 488, 489. And in life
insurance application does not include mere temporary
indisposition, which, though requiring medical treatment,
is readily remediable. Zogg v. Bankers' Life Co. of Des
Moines, Iowa, C.C.A.W.Va., 62 F.2d 575, 578. Nor passing
discomfort. Washington Fidelity Nat. Ins. Co. v. Lacey,
45 Ohio App. 104, 186 N.E. 751, 754. However, it covers
disorders which could not properly be called diseases.
Cromeens v. Sovereign Camp W. 0. W., Mo.App., 247 S.W.
1033, 1034.
AIM A WEAPON. To point it intentionally. Ed-
wards v. State, 28 Ga.App. 466, 111 S.E. 748.
"Aim" denotes direction toward some minute point
in an object, while "point" implies direction toward
the whole object. Buchanan v. State, 25 Okl.Cr.
198, 219 P. 420, 423.
AINESSE. In French feudal law, the right or
privilege of the eldest born; primogeniture;
esnecy. Guyot, Inst.Feud. c. 17.
AIR. That fluid transparent substance which sur-
rounds our globe. Bank v. Kennett, 101 Mo.App.
370, 74 S.W. 474.
AIR BASE. See Base.
AIR CONDITION. To render a room, building,
office, hotel or the like reasonably comfortable by
circulating air which is maintained at a prede-
termined temperature by either warming or cool-
ing it. Magee Laundry & Cleaners v. Harwell
Appliance Co., 184 Miss. 435, 185 So. 571, 572.
AIR COURSES. As applied to the operation of
coal mines, passages for conducting air. Ricardo
v. Central Coal & Coke Co., 100 Kan. 95, 163 P.
641, M3. See Airway.
AIRCRAFT. Any contrivance used, or designed
for navigation of or flight in the air, except . a
parachute or other contrivance designed for such
navigation but used primarily as safety equip-
ment. 49 U.S.C.A. §§ 171-184.
As defined in the Uniform Aeronautics Act, the
term includes balloon, airplane, hydroplane and
every other vehicle used for navigation through
the air. See Aeronautics; Airship; Hydro-Aero-
plane.
AIRE. In old Scotch law, the court of the justices
itinerant, corresponding with the English eyre, (q.
v.) Skene de Verb. Sign. voc. Iter.
AIRPLANE. See Aeronautics; Hydro-Aeroplane;
Aircraft; Airship.
AIRPORT. Landing and taking off place for air
planes. City of Mobile v. Lartigue, 23 Ala.App.
479, 127 So. 257, 260.
With its beacons, landing fields, runways, and hangars,
it is analogous to a harbor with its lights, wharves, and
docks; the one is the landing place and haven of ships
that navigate the water, the other of those that navigate
the air. Coleman v. City of Oakland, 110 Cal.App. 715, 295
P. 59, 61. And includes all land, buildings, structures or
other improvements, necessary or convenient in the estab-
lishment and operation of an airport. Moore v. Gordon,
Tex.Civ.App., 122 S.W.2d 239, 242.
Any locality either of water or land which Is adapted
for the landing and taking off of aircraft and which pro-
vides facilities for shelter, supply, and repair of aircraft,
or a place used regularly for receiving or discharging pas-
sengers or cargo by air. 49 U.S.C.A. §§ 171-184. City of
Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 63 A.L.R. 478.
AIRSHIP. Under some statutes it includes every
kind of vehicle or structure intended for use as a
means of transporting passengers or goods, or
both, in the air. As defined by the International
Flying Convention of 1919, an airship means an
aircraft using gas lighter than air as a means of
support and having means of propulsion.
See Aeronautics; Aircraft; Hydro-Aeroplane.
AIRT AND PAIRT. In old Scotch criminal law,
accessary; contriver and partner. 1 Pitc.Crim.
Tr. pt. 1, p. 133; 3 How.State Tr. 601. Now writ-
ten art and part, (q. v.)
AIRWAY. Applies to air routes for either air-
planes or seaplanes and is a material or perma-
nent way through the air laid out with precision
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ALCOHOLISM
and care that an engineer adopts in choosing the
course of and laying down a roadway. City of
Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 14, 63
A.L.R. 478.
In English law, a passage for the admission of
air into a mine. 24 & 25 Viet. c. 97, § 28. See Air
Courses.
AISIAMENTUM (spelled also Esamentum, Ais-
mentum). In old English law, an easement. Spel-
man.
AISNE or EIGNE. In old English law, the eldest
or first born.
AJOURNMENT. In French law, the document
pursuant to which an action or suit is commenced,
equivalent to the writ of summons in England.
Actions, however, are in some cases commenced
by requéte or petition. Arg.Fr.Merc.Law, 545.
AJUAR. In Spanish law, paraphernalia. The
jewels and furniture which a wife brings in mar-
riage.
AJUTAGE (spelled also Adjutage). A conical tube
used in drawing water through an aperture, by
the use of which the quantity of water drawn is
much increased.
AKIN. In old English law. Of kin. "Next-a-kin."
7 Mod. 140.
AL. L. Fr. At the; to the. Al barre; at the
bar. Al huis d'esglise; at the church door.
ALIE ECCLESL7E. The wings or side aisles of a
church. Blount.
ALANERARIUS. A manager and keeper of dogs
for the sport of hawking; from alanus, a dog
known to the ancients. A falconer. Blount.
ALARM LIST. The list of persons liable to mili-
tary watches, who were at the same time exempt
from trainings and musters. See Prov.Laws 1775-
76, c. 10, § 18; Const.Mass. c. 11, § 1, art. 10;
Pub.St.Mass.1882, p. 1287.
ALBA FIRMA. In old English law, white rent;
rent payable in silver or white money, as distin-
guished from that which was anciently paid in
corn or provisions, called black mail, or black
rent; reditus nigri. Spelman; Reg.Orig. 319b.
ALBACEA. In Spanish law, an executor or admin-
istrator; one who is charged with fulfilling and
executing that which is directed by the testator in
his testament or other last disposition. Emeric
v. Alvarado, 64 Cal. 529, 2 Pac. 418, 433.
ALBANAGIUM. In old French law, the state of
alienage; of being a foreigner or alien.
ALBANUS. In old French law, a stranger, alien,
or foreigner.
ALBINATUS. In old French law, the state or
condition of an alien or foreigner.
ALBINATUS JUS. In old French law, the droit
d'aubaine in France, whereby the king, at an
alien's death, was entitiea to all his property, un-
less he had peculiar exemption. Repealed in
June, 1791.
ALBUM BREVE. A blank writ; a writ with a
blank or omission in it.
ALBUS LIBER. The white book; an ancient
book containing a compilation of the law and
customs of the city of London.
ALCABALA. In Spanish law, a duty of a certain
per cent. paid to the treasury on the sale or ex-
change of property.
ALCAIDE. Sp. Jailer, warden, governor of a
fortress.
ALCALDE. The name of a judicial officer in
Spain, and in those countries which have received
their laws and institutions from Spain. His func-
tions somewhat resembled those of mayor in small
municipalities on the continent, or justice of the
peace in England and most of the United States.
Castillero v. U. S., 2 Black, 17, 194, 17 L.Ed. 360.
ALCOHOLIC BEVERAGE. The term is distin-
guished from the term "intoxicating liquor," in
that a beverage may be alcoholic in that it contains
some alcohol, and yet not be intoxicating as de-
fined in National Prohibition Act. Premier-Pabst
Sales Co. v. McNutt, D.C.Ind., 17 F.Supp. 708, 714.
Beer. Liquor Control Commission v. McGillis, 91 Utah,
586, 65 P.2d 1136, 1141. Ethyl alcohol, within tax statute.
H. 0. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657,
660. It is immaterial whether the liquor is suitable or
desirable for beverage purposes, if it is prohibited by law
and is in fact used as a beverage. Powell v. State, 179 Md.
399, 18 A.2d 587, 590, 591. But it must be drinkable.
McChristy v. State, 138 Tex.Cr.R. 26, 133 S.W.2d 976, 977.
ALCOHOLIC LIQUORS. "Alcoholic, spirituous and
malt liquors" mean intoxicating liquors which can
be used as a beverage, and which, when drunk to
excess, will produce intoxication. Howard v. Acme
Brewing Co., 143 Ga. 1, 83 S.E. 1096, 1097, Ann.
Cas.1917A, 91; F. W. Woolworth Co. v. State, 72
Okl.Cr. 125, 113 P.2d 399, 403.
The term includes raw alcohol. C. J. Lincoln Co. v.
State, 122 Ark. 204, 183 S. W. 173, 174. Beer, ale, or wine
in Selective Service Act, § 12 (50 U.S.C.A. § 226 note).
U. S. v. Kinsel, D.C., 263 F. 141, 142. And lemon and
vanilla extracts, made or used for beverage purposes, con-
taining alcohol. Brandon v. State, 24 Ala.App. 289, 134 So.
890, 891. But not specially denatured alcohol. M. H. Mc-
Carthy & Co. v. Doran, D.C.Mass., 43 F.2d 659, 661. See
Intoxicating Liquor.
ALCOHOLISM. In medical jurisprudence, the
pathological effect (as distinguished from physio-
logical effect) of excessive indulgence in intoxi-
cating liquors.
A morbid condition resulting from the inordinate or
excessive use of alcoholic beverages. Cochran v. Commis-
sioner of Internal Revenue, C.C.A.4, 78 F.2d 176, 178.
It is acute when induced by excessive potations at one
time or in the course of a single debauch. An attack of
delirium tremens and alcoholic homicidal mania are exam-
ples of this form. It is chronic when resulting from the
long-continued use of spirits in less quantities, as in the
case of dipsomania.
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ALCOVE
ALCOVE ROOM. An "alcove room," within Tene-
ment House Law N. Y. § 65, is a room with an.
alcove. People on Complaint of Hickey v. White-
low, Mag.Ct.N.Y., 166 N.Y.S. 141, 148.
ALDERMAN. A judicial or administrative magis-
trate.
See Aldermannus.
Originally the word was synonymous with "elder" or
"senator," but was also used to designate an earl, and
even a king.
In American cities, one of a board of municipal officers
next in order to the mayor. State v. Waterman, 95 Conn.
414, 111 A. 623, 624; Board of Lights and Waterworks v.
Dobbs, 151 Ga. 53, 105 S.E. 611, 612. The aldermen are
generally a legislative body, having limited judicial pow-
ers as a body, as in matters of internal police regulation,
laying out and repairing streets, constructing sewers, and
the like; though in many cities they hold separate courts,
and have magisterial powers to a considerable extent.
In English law, an associate to the chief civil magistrate
of a corporate town or city.
The word would seem to have been rather an appellation
of honor, originally, than a distinguishing mark of office.
Spelmar Gloss.
ALDERMANNUS. L. Lat. An alderman.
ALDERMANNUS CIVITATIS VEL BURGI. Alder-
man of a city or borough, from which the modern
office of alderman has been derived. T. Raym.
435, 437.
ALDERMANNUS COMITATUS. The alderman
of the county. According to Spelman, he held an
office intermediate between that of an earl and a
sheriff. According to other authorities, he was
the same as the earl. 1 Bl.Comm. 116.
ALDERMANNUS HUNDRED! SEU WAPEN•
TACHIL Alderman of a hundred or wapentake.
Spelman.
ALDERMANNUS REGIS. Alderman of the king.
So called, either because he received his appoint-
ment from the king or because he gave the judg-
ment of the king in the premises allotted to him.
ALDERMANNUS TOTIUS ANGLIZE. Alderman
of all England. An officer among the Anglo-
Saxons, supposed by Spelman to be the same with
the chief justiciary of England in later times.
Spelman.
ALE-CONNER. In old English law, an officer
appointed by the court-leet, sworn to look to the
assise and goodness of ale and beer within the
precincts of the leet. Kitch. Courts, 46; Whishaw.
And to look to the assise of bread. Cowell.
This officer is still continued in name, though
the duties are changed or given up; 1 Crabb, Real
Prop. 501.
ALE-HOUSE. A place where ale is sold to be
drunk on the premises where sold.
ALE SILVER. A rent or tribute paid annually to
the lord mayor of London, by those who sell ale
within the liberty of the city.
ALE-STAKE. A maypole or long stake driven
into the ground, with a sign on it for the sale of
ale. Cowell.
ALEA. Lat. In the civil law, a game of chance
or hazard. Dig. 11, 5, 1. See Cod. 3, 43. The
chance of gain or loss in a contract.
ALEATOR. Lat. (From alea, q. v., meaning
dice). In the civil law, a gamester; one who
plays at games of hazard. Dig. 11, 5; Cod. 3,
43.
ALEATORY CONTRACT. A mutual agreement,
of which the effects, with respect both to the
advantages and losses, whether to all the parties
or to some of them, depend on an uncertain event.
Losecco v. Gregory, 108 La. 648, 32 So. 985.
Contracts in which promise by one party is
conditioned on fortuitous event. Southern Surety
Co. v. MacMillan Co., C.C.A.Okl., 58 F.2d 541, 549.
A contract, the obligation and performance of which
depend upon an uncertain event, such as insurance, engage-
ments to pay annuities, and the like.
A contract is aleatory or hazardous when the perform-
ance of that which is., , one of its objects depends on an
uncertain event. rt is certain when the thing to be done
is supposed to depend on the will of the party, or when in
the usual course of events it must happen in the manner
stipulated.
ALER A DIEU. L. Fr. In old practice. To be
dismissed from court; to go quit. Literally, "to
go to God."
ALER SANS JOUR. In old practice, a phrase
used to indicate the final dismissal of a case from
court without continuance. "To go without day."
ALEU. Fr. In French feudal law, an allodial
estate, as distinguished from a feudal estate or
benefice.
ALFET. A cauldron into which boiling water was
poured, in which a criminal plunged his arm up
to the elbow, and there held it for some time, as
an ordeal. Du Cange.
ALFRED'S CODE. See Dombec, Domboc.
ALGARUM MARIS. Probably a corruption of
Laganum marls, lagan being a right, in the mid-
dle ages, like jetsam and flotsam, by which goods
thrown from a vessel in distress became the
property of the king, or the lord on whose shores
they were stranded. Spelman; Jacob; Du Cange.
ALGO. Span. In Spanish law, property. White,
Nov.Recop. b. 1, tit. 5, c. 3, § 4.
ALIA. Lat. Other things.
ALIA ENORMIA. Other wrongs. The name
given to a general allegation of injuries caused
by the defendant with which the plaintiff in an
action of trespass under the common-law practice
concluded his declaration. Archb.Crim.Pl. 694.
ALIAMENTA. A liberty of passage, open way,
water-course, etc., for the tenant's accommodation.
Kitchen.
ALIAS. Lat. Otherwise; equivalent of "alias
dictus" or "otherwise called", indicating one was
called by one or the other of two names, Corn-
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ALIENA
monwealth v. Liebowitz, 143 Pa.Super. 75, 17 A.
2d 719, 721; at another time; in another manner;
formerly.
ALIAS DICTUS. "Otherwise called." Antone v.
State, 49 Ariz. 168, 65 P.2d 646, 649, (shorter and
more usual form, alias; see Kennedy v. People,
39 N.Y. 245). Known by both those names, and is
called one or the other. People v. Mellon, 171
Misc. 171, 11 N.Y.S.2d 786, 790. A fictitious name
assumed by a person is colloquially termed an
"alias!' State v. Melson, 161 La. 423, 108 So. 794,
795.
ALIAS EXECUTION. One issued after first has
been- returned without having accomplished its
purpose. Richards-Conover Hardware Co. v.
Sharp, 150 Kan. 506, 95 P.2d 360, 364.
ALIAS SUBPOENA. One issued after the first
has been returned without having accomplished
its purpose. Richards-Conover Hardware Co. v.
Sharp, 150 Kan. 506, 95 P.2d 360, 364.
ALIAS SUMMONS. A summons issued when or-
iginal has not produced its effect because defec-
tive in form or manner of service, and when is-
sued, which supersedes the first writ. Mansur v.
Pacific Mut. Life Ins. Co. of California, 136 Mo.
App. 726, 118 S.W. 1193, 1194; McGuire v. Mont-
vale Lumber Co., 190 N.C. 806, 131 S.E. 274, 275.
ALIAS TAX WARRANT. One issued after the
first has been returned without having accomplish-
ed its purpose. Richards-Conover Hardware Co. v.
Sharp, 150 Kan. 506, 95 P.2d 360, 364.
ALIAS WRIT. A second writ. Ditmar v. Beck-
ham, Tex.Civ.App., 77 S.W.2d 893, 894.
At common law "alias" as applied to an execution or fieri
facias referred to new writ issued after original fieri facias
was returned unproductive, but under the Code the term
applies to an execution issued in lieu of a lost original.
U-Driv-It System of Macon v. Lyles, 71 Ga.App. 70, 30
S.E.2d 111, 114. A writ issued where one of the same kind
has already been issued in the same cause without having
been effective. Schmidt v. Schmidt, 108 Mont. 246, 89 P.2d
1020, 1021. It is used of all species of writs.
Historically, the word "alias" refers to a former com-
mand of the same sort, and it was part of a Latin sentence
meaning, "We command you as we have before (sicut
alias) commanded you." Schmidt v. Schmidt, 108 Mont.
246, 89 P.2d 1020, 1021.
ALIAS WRIT OF EXECUTION. One issued aft-
er the first has been returned without having ac-
complished its purpose. Richards-Conover Hard-
ware Co. v. Sharp, 150 Kan. 506, 95 P.2d 360, 364.
ALIBI. Lat. In criminal law, elsewhere; in an-
other place. State v. Hubbard, 351 Mo. 143, 171 S.
W.2d 701, 706.
Means that at time of commission of crime charged in
indictment defendant was at different place so remote or
distant or under such circumstances that he could not have
committed offense. State v. Parsons, 206 Iowa 390, 220
N.W. 328, 330. It is a physical circumstance and derives
its entire potency as a defense from fact that it involves
the physical impossibility of guilt of accused. Gregg v.
State, 69 Okl.Cr. 103, 101 P.2d 289, 296. Strictly it is not a
defense though usually called such in criminal procedure.
State v. Norman, 103 Ohio St. 541, 134 N.E. 474.
ALIEN. n. A foreigner; one born abroad.
A person who owes allegiance to a foreign
government. De Cano v. State, 7 Wash.2d 613,
110 P.2d 627, 631, 633.
In this country is a person born out of the United States
and unnaturalized under our Constitution and laws, 2 Kent,
Comm. 50. Caparell v. Goodbody, 132 N.J.Eq. 559, 29 A.2d
5.63, 569. In England, one born out of the allegiance of the
king.
A native born Filipino living in the United States but
not admitted to United States citizenship was an "alien".
United States v. Gancy, D.C.Minn., 54 F.Supp. 755, 758,
759. But term for immigration purposes would not apply
to a Filipino seeking to enter the Territory of Hawaii or
to a Filipino lawfully admitted to Hawaii who seeks entry
therefrom into the United States. Id. Nor to citizens of
the Philippine Islands of the Filipino race. De Cano v.
State, 7 Wash.2d 613, 110 P.2d 627, 631, 633.
As to the effect of marriage on the status of women,
whether they were originally aliens or citizens of the-
United States, see 8 U.S.C.A. §i 9-368; U. S. ex rel.
Ulrich v. Kellogg, 58 App.D.C. 360, 30 F.2d 984, 985, 71
A.L.R. 1210. Petition of Peterson, D.C.Wash., 33 F.Supp.
615, 616. Johansen v. Staten Island Shipbuilding Co., 272
N.Y. 140, 5 N.E.2d 68, 70. In re Pezzi, D.C.Cal., 29 F.2c1.
999, 1001.
ALIEN or ALIENE. v. To transfer or make
over to another; to convey or transfer the prop-
erty of a thing from one person to another; to-
alienate. Usually applied to the transfer of lands
and tenements. Co.Litt. 118; Cowell.
ALIEN AMY. In international law, alien friend.
An alien who is the subject or citizen of a foreign
government at peace with our own.
ALIEN AND SEDITION LAWS. Acts of congress
of July 6 and July 14, 1798. See Whart. State Tr.
22.
ALIEN ENEMY. In international law, an alien
who is the subject or citizen of some hostile
state or power. See Dyer, 2b; Co.Litt. 129b. A
person who, by reason of owing a permanent or
temporary allegiance to a hostile power, becomes,
in time of war, impressed with the character of
an enemy. See 1 Kent, Comm. 74; 2 Id. 63; Bell
v. Chapman, 10 Johns., N.Y., 183; Dorsey v. Brig-
ham, 177 Ill. 250, 52 N.E. 303, 42 L.R.A. 809. Sub-
jects of a foreign state at war with United
States. Caparell v. Goodbody, 132 N.J.Eq. 559, 29
A.2d 563, 569.
Whether or not a person is an alien enemy depends, not
on his nationality, but on the place in which he voluntarily
resides or carries on business. Porter v. Freudenberg,
[1915] 1 K.B. 857. See, also, Noble v. Great American Ins.
Co., 194 N.Y.S. 60, 66, 200 App.Div. 773.
ALIEN FRIEND. Subjects of a foreign state at
peace with the United States. Caparell v. Good-
body, 132 N.J.Eq. 559, 29 A.2d 563, 569, 570. Or
citizen; an alien amy. Techt v. Hughes, 229 N.Y.
222, 128 N.E. 185, 186, 11 A.L.R. 166.
ALIEN NÉE. An alien born, i. e., a person who,
has been born an alien.
ALIENA NEGOTIA EXACTO OFFICIO GERUN
TUR. The business of another is to be conducted
with particular attention. Jones, Bailm. 83; First
Nat. Bank of Carlisle v. Graham, 79 Pa. 118, 21_
Am.Rep. 49.
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ALIENABLE
ALIENABLE. Proper to be the subject of aliena-
tion or transfer.
ALIENAGE. The condition or state of an alien.
&LIENATE. To convey; to transfer the title to
property. Co.Litt. 118b. Alien is very commonly
used in the same sense. 1 Washb. Real Prop. 53.
"Sell, alienate, and dispone" are the formal words of
transfer in Scotch conveyances of heritable property. Bell.
The term has a technical legal meaning, and any trans-
fer of real estate, short of a conveyance of the title, is not
an alienation of the estate. Masters v. Insurance Co., 11
Barb., N.Y., 630. See, also, Nichols & Shepard Co. v.
Dunnington, 118 Okl. 231, 247 P. 353, 355. But the word
has been defined as to convey or transfer to another as
title, property, or right, to part voluntarily with owner-
ship of property, and, in widest sense, property is alien-
ated when transferred from one person to another in any
way; but generally alienating is restricted to transfer of
title to property by act of owner, as distinguished from
transfer effected entirely by operation of law. Delfelder v.
Poston, 42 Wyo. 176, 293 P. 354, 361.
ALIENATIO LICET PROHIBEATUR, CONSEN-
SU TAMEN OMNIUM, IN QUORUM FAVOREM
PROHIBITA EST, POTEST FIERI, ET QUILIBET
POTEST RENUNCIARE JURI PRO SE INTRO-
DUCTO. Although alienation be prohibited, yet,
by the consent of all in whose favor it is prohibi-
ted, it may take place; for it is in the power of
any man to renounce a law made in his own
favor. Co.Litt. 98.
ALIENATIO REI PR1EFERTUR JURI ACCRE-
SCENDI. Alienation is favored by the law rather
than accumulation. Co.Litt. 185.
ALIENATION. In real property law, the trans-
fer of the property and possession of lands, tene-
ments, or other things, from one person to an-
other. Termes de la Ley.
The term is particularly applied to absolute conveyances
of real property. Conover v. Mutual Ins. Co., 1 N.Y. 290,
294. The voluntary and complete transfer from one person
to another. Rich v. Doneghey, 71 Okl. 204, 177 P. 86, 89, 3
A.L.R. 352; Chouteau v. Chouteau, 49 Okl. 105, 152 P. 373,
376. Disposition by will. Contra, Postlethwaite v. Edson,
102 Kan. 619, 171 P. 769, 773, L.R.A.1918D, 983. Leases,
especially of Indians' allotted lands. Bailey v. King, 57
Okl. 528, 157 P. 763, 764; Ashton v. Noble, 65 Okl. 45, 162
P. 784, 785; Williams v. Hylan, 215 N.Y.S. 101, 106, 126
Misc.Rep. 807. Every mode of passing realty by the act of
the party, as distinguished from passing it by the opera-
tion of law. Rathbun v. Allen, 63 R.I. 109, 7 A.2d 273,
275. But the term is inapplicable to mortgages. Worth-
ington v. Tipton, 24 N.M. 89, 172 P. 1048, 1049.
The act by which the title to real estate is voluntarily
resigned by one person to another and accepted by the
latter, in the forms prescribed by law. Cf. In re Ehr-
hardt, U.S.D.C., 19 F.2d 406, 407 (bankruptcy proceedings).
It is said to signify the wrongful transfer of property to
another or the wrongful conversion of property for which
an action of trover was maintainable at common law.
Sauls v. Whitman, 171 Oki. 113, 42 P.2d 275, 280.
In medical jurisprudence, a generic term de-
noting the different kinds or forms of mental
aberration or derangement.
ALIENATION IN MORTMAIN. See Amortiza-
tion; Mortmain.
ALIENATION OF AFFECTIONS. The robbing of
husband or wife of the conjugal affection, society,
fellowship, and comfort which inheres in the nor-
mal marriage relation. Young v. Young, 236 Ala.
627, 184 So. 187, 190.
Loss of consortium between spouses from wrongful acts
of others. Young v. Young, 236 Ala. 627, 184 So. 187, 190.
The deprivation of one spouse of the right to the aid, com-
fort, assistance, and society of the other spouse in family
relationships. Hargraves v. Ballou, 47 R.I. 186, 131 A. 643,
645.
ALIENATION OFFICE. In English practice, an
office for the recovery of fines levied upon writs
of covenant and entries.
ALIENEE. One to whom an alienation, convey-
ance, or transfer of property is made. See Alien-
or.
ALIENI GENERIS. Lat. Of another kind. 3 P.
Wms. 247.
ALIENI JURIS. Lat. Under the control, or sub-
ject to the authority, of another person; e. g., an
infant who is under the authority of his father
or guardian; a wife under the power of her hus-
band. The term is contrasted with Sui Juris, (q.
v.).
ALIENIGENA. One of foreign birth; an alien.
7 Coke, 31.
ALIENISM. The state, condition, or character of
an alien. 2 Kent, Comm. 56, 64, 69.
ALIENIST. One who has specialized in the study
of mental diseases. State v. Reidell, 9 Houst.,
Del., 470, 14 A. 550, 552. Persons qualified by ex-
perience, knowledge, and previous opportunities
to express opinion as to defendant's mental con-
dition at a particular time. People v. Norton, 138
Cal.App. 70, 31 P.2d 809, 810.
ALIENOR. He who makes a grant, transfer of
title, conveyance, or alienation. Correlative of
alienee.
ALIENUS. Lat. Another's; belonging to an-
other; the property of another. Alienus homo,
another's man, or slave. Inst. 4, 3, pr. Aliena res,
another's property. Bract. fol. 13b.
ALIGNMENT. The act of laying out or adjusting
a line. The state of being so laid out or adjusted.
The ground plan of a railway or other road or
work as distinguished from its profile or gradients.
Village of Chester v. Leonard, 68 Conn. 495, 37
A. 397. An adjustment to a line. Harner v.
Monongalia County Court, 80 W.Va. 626, 92 S.E.
781, 785.
ALIKE. Similar to another. The term is not
synonymous with "identical," which means "exact-
ly the same." Carn v. Moore, 74 Fla. 77, 76 So.
337, 340.
ALIMENT. In Scotch law, to maintain, support,
provide for; to provide with necessaries. As a
noun, maintenance, support; an allowance from
the husband's estate for the support of the wife.
Paters. Comp. §§ 845, 850, 893.
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ALIUNDE
In civil law, food and other things necessary to
the support of life; money allowed for the pur-
pose of procuring these. Dig. 50, 16, 43.
In common law, to supply with necessaries.
Purcell v. Purcell, 3 Edw.Ch.N.Y. 194.
ALIMENTA. Lat. In the civil law, aliments;
things necessary to sustain life; means of sup-
port, including food, (cibaria,) clothing, (vestitus,)
and habitation, (habitatio.) Dig. 34, 1, 6.
ALDIENTOS. The Spanish term for support and
maintenance. Escriche Diccionario.
ALIMONY. Comes from Latin "alimonia" mean-
ing sustenance, and means, therefore, the suste-
nance or support of the wife by her divorced hus-
band and stems from the common-law right of
the wife to support • by her husband. Eaton v.
Davis, 176 Va. 330, 10 S.E.2d 893, 897. Derived
from Latin word "alere," meaning to nourish or
sustain. Allowances which husband by court order
pays wife for maintenance while they are sepa-
rated or after they are divorced. Merriman v.
Hawbaker, D.C.Ill., 5 F.Supp. 432, 433. Or pend-
ing a suit for divorce. And see Bowman v. Worth-
ington, 24 Ark. 522; Lynde v. Lynde, 64 N.J.Eq.
736, 52 A. 694, 58 L.R.A. 471. But in its strictly
legal sense relates to the provisions made pen-
dente lite. Warne v. Warne, 36 S.D. 573, 156 N.
W. 60, 62. Compare Emerson v. Emerson, 120
Md. 584, 87 A. 1033, 1035, holding that in the ab-
sence of statute, in case of an absolute divorce the
duty to support ceases and with it the right to
alimony.
Generally it is restricted to money unless otherwise
authorized by statute. Lloyd v. Lloyd, 183 Ga. 751, 189
S.E. 903, 904. But it may be such an allowance out of hus-
band's estate. Davis v. Davis, 61 Okl. 275, 161 P. 190, 191.
Equally applicable to all allowances, whether annual or
in gross. Burrows v. Purple, 107 Mass. 432.
It may continue during the joint lives of husband and
wife, or so long as they live apart. Cohen v. Cohen, Md.,
174 Md. 61, 197 A. 564, 565, 566. But is essentially a dif-
ferent thing from a division of the property of the parties.
Mesler v. Jackson, Circuit Judge, 188 Mich. 195, 154 N.W.
63, 65. Not being an "estate", nor the separate property
of wife. Cizek v. Cizek, 69 Neb. 797, 99 N.W. 28.
It does not partake of nature of damages or penalty for
husband's misconduct. Kennard v. Kennard, 87 N.H. 320,
179 A. 414, 419. Nor is it founded on contract, express or
implied, but on husband's natural and legal duty to sup-
port wife. Smith v. Smith, D.C.N.Y., 7 F.Supp. 490, 491.
In its broad sense, it means also an award for the sup-
port of a child or children. Schafer v. Schafer, 193 N.Y.S.
43, 44, 118 Misc.Rep. 254; Brown v. Brown, 222 Mass. 415,
111 N.E. 42, 43. And it includes provision for an educa-
tion. Floyd v. Floyd, 91 Fla. 910, 108 So. 896, 898.
Alimony in gross, or in a lump sum, is in the
nature of a final property settlement, and hence
in some jurisdictions is not included in the term
"alimony," which in its strict or technical sense
contemplates money payments at regular inter-
vals. Parmly v. Parmly, 125 N.J.Eq. 545, 5 A.2d
789, 791; 27 C.J.S. Divorce, § 235, p. 965.
Alimony pendente lite is an allowance made
pending a suit for divorce or separate mainte-
nance including a reasonable allowance for prepa-
ration of the suit as well as for support. Davis
v. Davis, 15 Wash.2d 297, 130 P.2d 355, 359. Or
Black's Law Dictionary Revised 4th Ed.-7
pending an appeal. Robinson v. Robinson, N.J.
Err. & App., 92 A. 94, 96, L.R.A.1915B, 1071.
Permanent alimony is a provision for the sup-
port and maintenance of a wife during her life-
time. In re Spencer, 83 Cal. 460, 23 P. 395, 17
Am.St.Rep. 266.
ALIO INTUITU. Lat. In a different view; under
a different aspect. 4 Rob.Adm. & Pr. 151. With
another view or object; with respect to another
case or condition. 7 East, 558; 6 M. & S. 231.
See Diverso Intuitu.
ALIQUID CONCEDITUR NE INJURIA REMAN-
EAT IMPUNITA, QUOD ALIAS NON CONCED-
ERETUR. Something is (will be) conceded, to
prevent a wrong remaining unredressed, which
otherwise would not be conceded. Co.Litt. 197b.
ALIQUID POSSESSIONIS ET NIHIL JURIS.
Somewhat of possession, and nothing of right,
(but no right).
A phrase used by Bracton to describe that kind of pos-
session which a person might have of a thing as a guard-
ian, creditor, or the like; and also that kind of possession
which was granted for a term of years, where nothing
could be demanded but the usufruct. Bract. fols. 39a,
160a.
ALIQUIS NON DEBET ESSE JUDEX IN PRO-
PRIA CAUSA, QUIA NON POTEST ESSE JU-
DEX ET PARS. A person ought not to be judge
in his own cause, because he cannot act as judge
and party. Co.Litt. 141; 3 Bl.Comm. 59.
ALIQUOT. Strictly, contained in something else
an exact number of times. But as applied to re-
sulting trusts, "aliquot" is treated as meaning
fractional. Fox v. Shanley, 94 Conn. 350, 109 A.
249, 251. And means any definite interest. Hin-
shaw v. Russell, 280 Ill. 235, 117 N.E. 406, 408.
ALITER. Otherwise; as otherwise held or de-
cided.
ALIUD EST CELARE, ALIUD TACERE. To con-
ceal is one thing; to be silent is another. Lord
Mansfield, 3 Burr. 1910.
ALIUD EST DISTINCTIO, ALIUD SEPARATIO.
Distinction is one thing; separation is another.
It is one thing to make things distinct, another
thing to make them separable.
ALIUD EST POSSIDERE, ALIUD ESSE IN
POSSESSIONE. It is one thing to possess; it is
another to be in possession. Hob. 163.
ALIUD EST VENDERE, ALIUD VENDENTI
CONSENTIRE. To sell is one thing; to consent
to a sale (seller) is another thing. Dig. 50, 17,
160.
ALIUD EXAMEN. A different or foreign mode
of trial. 1 Hale, Com.Law, 38.
ALIUNDE, Lat. From another source; from
elsewhere; from outside.
Evidence aliunde. Evidence from outside, from
another source. In certain cases a written in-
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ALIUNDE
strument may be explained by evidence aliunde,
that is, by evidence drawn from sources exterior
to the instrument itself, e. g., the testimony of a
witness to conversations, admissions, or prelimi-
nary negotiations.
Evidence aliunde (i. e., from without the will) may be
received to explain an ambiguity in a will. 1 Greenl. Ev.
§ 291.
ALIUNDE RULE. A verdict may not be im-
peached by evidence of juror unless foundation
for introduction thereof is first made by compe-
tent evidence aliunde, or from some other source.
State v. Adams, 141 Ohio St. 423, 48 N.E.2d 861,
863, 146 A.L.R. 509.
ALIUS. Lat. Other. The neuter form is aliud,
something else; another thing.
ALIVE. As respects birth, it means that child
shall have an independent life of its own for some
period, even momentarily, after birth. Evidenced
by respiration or other indications of life, such as
beating of heart and pulsation of arteries. Flem-
ing v. Sexton, 172 N.C. 250, 90 S.E. 247, 249. Cf.
Hydrostatic Test. Or heart tones in response to
artificial respiration, or pulsation of umbilical
cord after being severed. In re Stuertz' Estate,
124 Neb. 149, 245 N.W. 412, 413.
In respect of estate matters, a child en ventre
sa mere is "born" and "alive" for all purposes for
his benefit. In re Holthausen's Will, 175 Misc.
1022, 26 N.Y.S.2d 140, 143.
ALL. Means the whole of—used with a singular
noun or pronoun, and referring to amount, quan-
tity, extent, duration, quality, or degree. The
whole number or sum of—used collectively, with
a plural noun or pronoun expressing an aggre-
gate. Every member of individual component of;
each one of—used with a plural noun. In this
sense, all is used generically and distributively.
"All" refers rather to the aggregate under which
the individuals are subsumed than to the individ-
uals themselves. State v. Hallenberg-Wagner
Motor Co., 341 Mo. 771, 108 S.W.2d 398, 401. See
Both.
ALL AMERICAN. Indicative of supremacy, su-
periority, and distinction in the athletic world.
R. W. Eldridge Co. v. Southern Handkerchief
Mfg. Co., D.C.S.C., 23 F.Supp. 179, 182, 184, 185.
ALL AND SINGULAR. All without exception.
A comprehensive term often employed in convey-
ances, wills, and the like, which includes the ag-
gregate or whole and also each of the separate
items or components. McClaskey v. Barr, C.C.,
54 Fed. 798.
ALL CASES AT LAW. Within constitutional
guaranty of jury trial, refers to common law ac-
tions as distinguished from causes in equity and
certain other proceedings. Breimhorst v. Beck-
man, 227 Minn. 409, 35 N.W.2d 719, 734.
ALL DISABILITY. Includes both total and par-
tial disability caused by a permanent injury to the
leg or arm, or resulting from or relating to the
permanent injury, and embraces not only all in-
capacity to labor, directly or indirectly arising
from such permanent injury, but likewise cases of
no incapacity at all. Bausch v. Fidler, 277 Pa.
573, 121 A. 507. Includes pain, annoyance, incon-
veniences, disability to work, and everything inci-
dent to the permanent injury. Vanaskie v. Stev-
ens Coal Co., 133 Pa.Super. 457, 2 A.2d 531, 532.
ALL FAULTS. A sale of goods with "all faults"
covers, in the absence of fraud on the part of the
vendor, all such faults and defects as are not in-
consistent with the identity of the goods as the
goods described. Whitney v. Boardman, 118 Mass.
242.
ALL FOURS. Two cases or decisions which are
alike in all material respects, and precisely similar
in all the circumstances affecting their determina-
tion, are said to be or to run on "all fours."
ALL THE ESTATE. The name given in England
to the short clause in a conveyance or other as-
surance which purports to convey "all the estate,
right, title, interest, claim, and demand" of the
grantor, lessor, etc., in the property dealt with.
Day .Conv. 93.
ALL THE MEMBERS. The provision of a church
constitution that "all the members" can discharge
their parish priest means that all shall have op-
portunity to participate, but not that all mem-
bers must attend the meeting or vote in the affirm-
ative for the discharge of the priest. Stryjewski
v. Panfil, 269 Pa. 568, 112 A. 764, 765.
ALL—ADDENDUM. As respects patent on a
tooth gearing, "all-addendum" and "all-dedendum"
mean that the working faces of the teeth of one
element are outside, and those of the other ele-
ment inside, their respective "pitch circles" which
refers to circles passing through the pitch point
and coaxial with the axes of rotation of the inter-
meshing gear wheels. In re Cook, Cust. & Pat.
App., 103 F.2d 909, 911.
ALLEGANS CONTRARIA NON EST AUDIEN-
DUS. One alleging contrary or contradictory
things (whose statements contradict each other)
is not to be heard. 4 Inst. 279. Applied to the
statements of a witness.
ALLEGANS SUAM TURPIT1UDINEM NON EST
AUDIENDUS. One who alleges his own infamy is
not to be heard. 4 Inst. 279.
ALLEGARI NON DEBUIT QUOD PROBATUM
NON RELEVAT. That ought not to be alleged
which, if proved, is not relevant. 1 Ch.Cas. 45.
ALLEGATA. In Roman law, a word which the
emperors formerly signed at the bottom of their
rescripts and constitutions; under other instru-
ments they usually wrote signata or testata.
Encyc. Lond.
ALLEGATA ET PROBATA. Lat. Things alleged
and proved. The allegations made by a party to a
suit, and the proof adduced in their support.
Crump v. State, 30 Ala.App. 241, 4 So.2d 188, 189.
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ALLIANCE
ALLEGATIO CONTRA FACTUM NON EST AD-
MITTENDA. An allegation contrary to the deed
(or fact) is not admissible.
ALLEGATION. The assertion, declaration, or
statement of a party to an action, made in a
pleading, setting out what he expects to prove.
Mathews v. Underpinning & Foundation Co., 17 N.
J.Misc. 79, 4 A.2d 788, 789.
A material allegation in a pleading is one es-
sential to the claim or defense.
In ecclesiastical law, the statement of the facts
intended to be relied on in support of the con-
tested suit.
In English ecclesiastical practice the word seems to
designate the pleading as a whole ; the three pleadings are
known as the allegations; and the defendant's plea is dis-
tinguished as the defensive, or sometimes the responsive,
allegation, and the complainant's reply as the rejoining
allegation.
ALLEGATION OF FACT. Generally narration
of transaction by stating details according to their
legal effect, and statement of right or liability
flowing from certain facts is conclusion of law.
Maylender v. Fulton County Gas & Electric Co.,
131 Misc. 514, 227 N.Y.S. 209, 217.
ALLEGATION OF FACULTIES. A statement
made by the wife of the property of her husband,
in order to obtain alimony. Wright v. Wright, 3
Tex. 168. See Faculties.
ALLEGE. To state, recite, assert, or charge; to
make an allegation. To affirm, assert, or declare.
State v. Hostetter, Mo.Sup., 222 S.W. 750, 754.
ALLEGED. Stated; recited; claimed; asserted;
charged. Lynn v. Nichols, 122 Misc.Rep. 170, 202
N.Y.S. 401, 406.
ALLEGIANCE. Obligation of fidelity and obedi-
ence to government in consideration for protection
that government gives. U. S. v. Kuhn, D.C.N.Y.,
49 F.Supp. 407, 414.
The citizen or subject owes an absolute and permanent
allegiance to his government or sovereign until he becomes
a citizen or subject of another government or another sov-
ereign. The alien owes a local and temporary allegiance
during period of his residence. U. S. v. Wong Kim, Ark.,
169 U.S. 649, 18 Sup.Ct. 456, 42 L.Ed. 890.
"The tie or ligamen which binds the subject [or citizen]
to the king [or government] in return for that protection
which the king [or government] affords the subject, [or
citizen."] 1 Bl.Comm. 366. It consists in "a true and
faithful obedience of the subject due to his sovereign," 7
Coke, 4b, and is a comparatively modern corruption of
ligeance (ligeantia), which is derived from liege (ligius),
meaning absolute or unqualified. It signified originally
liege fealty, 1. e. absolute and unqualified fealty. 18
L. Q. Rev. 47.
In Norman French, alleviation; relief ; redress.
Kelham.
Acquired allegiance, is that binding a natural-
ized citizen.
Local or actual allegiance, is that measure of
obedience due from a subject of one government
to another government, within whose territory he
is temporarily resident. From this are excepted
foreign sovereigns and their representatives, naval
and armed forces when permitted to remain in or
pass through the country or its waters.
Natural allegiance. In English law, that kind
of allegiance which is due from all men born with-
in the king's dominions, immediately upon their
birth, which is intrinsic and perpetual, and- cannot
be divested by any act of their own. 1 Bl.Comm.
369; 2 Kent, Comm. 42. In American law, the al-
legiance due from citizens of the United States
to their native country, and also from naturalized
citizens, and which cannot be renounced without
the permission of government, to be declared by
law. 2 Kent, Comm. 43-49.
It is said to be due to the king in his political, not his
personal, capacity; L. R. 17 Q. B. D. 54, quoted in U. S.
v. Wong Kim, Ark., 169 U.S. 663, 18 Sup.Ct. 456, 42 L.Ed.
890; and so in the United States "it is a political obliga-
tion" depending not on ownership of land, but on the
enjoyment of the protection of government; Wallace v.
Harmstad, 44 Pa. 492; and it "binds the citizen to the
observance of all laws" of his own sovereign; Adams v.
People, 1 N.Y. 173.
ALLEGIARE. To defend and clear one's self;
to wage one's own law. An archaic word which
simply means to define or justify by due course of
law. State v. Hostetter, Mo., 222 S.W. 750.
ALLEGING DIMINUTION. The allegation in an
appellate court, of some error in a subordinate
part of the nisi prius record. See Diminution.
ALLEN CHARGE. An instruction advising jurors
to have deference for each other's views, that they
should listen, with a disposition to be convinced,
to each other's argument, deriving its name from
the case of Allen v. United States, 164 U.S. 492, 17
S.Ct. 154, 41 L.Ed. 528, wherein the instruction was
approved. Coupe v. United States, 72 App.D.C. 86,
113 F.2d 145, 149; Green v. U. S., 309 F.2d 852.
Variously called dynamite charge, shotgun instruc-
tion, third degree instruction.
ALLERGY. A susceptibility to disease. Vogt v.
Ford Motor Co., Mo.App., 138 S.W.2d 684, 688.
ALLEVIARE. L. Lat. In old records, to levy or
pay an accustomed fine or composition; to redeem
by such payment. Cowell.
ALLEY. A narrow way designed for the special
accommodation of the property it reaches. Atchi-
son, T. & S. F. Ry. Co. v. City of Chanute, 95 Kan.
161, 147 P. 836, 837; Wooldridge v. Pacific Coast
Coal Co., Wash., 155 P.2d 1001, 1003.
ALLIANCE. The relation or union between per-
sons or families contracted by intermarriage;
affinity.
In international law, a union or association of
two or more states or nations, formed by league
or treaty, for the joint prosecution of a war
(offensive alliance), or for their mutual assistance
and protection in repelling hostile attacks (de-
fensive alliance). The league or treaty by which
the association is formed. The act of confederat-
ing, by league or treaty, for the purposes men-
tioned.
The term Is also used in a wider sense, embracing unions
for objects of common interest to the contracting parties,
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ALLISION
as the "Holy Alliance" entered into in 1815 by Prussia,
Austria and Russia for the purpose of counteracting the
revolutionary movement in the interest of political liberal-
ism.
ALLISION. The running of one vessel into or
against another, as distinguished from a collision,
i. e., the running of two vessels against each other.
But this distinction is not very carefully observed.
ALLOCABLE. Synonymous with "distributable".
In analyzing accounts, the breaking down of a
lump sum charged or credited to one account into
several parts to be charged or credited to other
accounts. Fleming v. Commissioner of Internal
Revenue, C.C.A.Tex., 121 F.2d 7, 9.
ALLOCATE. Power to allocate critical materials
included power to distribute, to assign, to allot.
Gallagher's Steak House v. Bowles, C.C.A.N.Y.,
142 F.2d 530, 534. To ration or withhold from
private consumption. State ex rel. Guide Manage-
ment Corp. v. Alexander, 223 Ind. 221, 59 N.E.2d
169, 172.
ALLOCATION. An allowance made upon an ac-
count in the English exchequer. Cowell. Placing
or adding to a thing. Encyc. Lond.
Assignment or allotment. Jacobson v. Bowles,
D.C.Tex., 53 F.Supp. 532, 534.
ALLOCATIONE FACIENDA. In old English
practice, a writ for allowing to an accountant such
sums of money as he hath lawfully expended in
his office; directed to the lord treasurer and
barons of the exchequer upon application made.
Jacob.
ALLOCATO COMITATU. In old English practice,
in proceedings in outlawry, when there were but
two county courts holden between the delivery of
the writ of exigi facias to the sheriff and its re-
turn, a special exigi facias, with an allocato
comitatu issued to the sheriff in order to complete
the proceedings. See Exigent.
ALLOCATUR. Lat. It is allowed. A word form-
erly used to denote that a writ or order was al-
lowed.
A word denoting the allowance by a master or prothono-
tary of a bill referred for his consideration, whether touch-
ing costs, damages, or matter of account. Lee, Diet.
A special allocatur is the special allowance of a writ
(particularly a writ of error) which is required in some
particular cases.
ALLOCATUR EXIGENT. A species of writ an-
ciently issued in outlawry proceedings, on the re-
turn of the original writ of exigent. 1 Tidd, Pr.
128. See Exigent.
ALLOCUTION. Formality of court's inquiry of
prisoner as to whether he has any legal cause to
show why judgment should not be pronounced
against him on verdict of conviction. Archb.Crim.
Pl. 173; State v. Pruitt, Mo., 169 S.W.2d 399, 400.
ALLOCUTUS. See Allocution.
ALLODARII. Owners of allodial lands. Owners
of estates as large as a subject may have. Co.
Litt 1; Bac. Abr. "Tenure," A.
ALLODIAL. Free; not holden of any lord or
superior; owned without obligation of vassalage
or fealty; the opposite of feudal. Barker v.
Dayton, 28 Wis. 384; Wallace v. Harmstad, 44 Pa.
499.
ALLODIUM. Land held absolutely in one's own
right, and not of any lord or superior; land not
subject to feudal duties or burdens.
An estate held by absolute ownership, without
recognizing any superior to whom any duty is
due on account thereof. 1 Washb.Real Prop. 16.
McCartee v. Orphan Asylum, 9 Cow., N.Y., 511,
18 Am.Dec. 516.
ALLOGRAPH. A writing or signature made for
a person by another; opposed to autograph.
ALLONGE. A piece of paper annexed to a bill of
exchange or promissory note, on which to write
endorsements for which there is no room on the
instrument itself. Pardessus, n. 343; Story, Prom.
Notes, §§ 121, 151; Fountain v. Bookstaver, 141
Ill. 461, 31 N.E. 17; Bergmann v. Puhl, 195 Wis.
120, 217 N.W. 746, 748, 56 A.L.R. 915.
ALLOPATHIC PRACTICE. The ordinary method
of practicing medicine as adopted and taught by
the great body of physicians. Bradbury v. Bardin,
34 Conn. 452, 453, 35 Conn. 577. Also, and more
properly, that method of combatting disease by
the use of remedies producing effects different
from those of the disease being treated;—opposed
to homeopathy.
ALLOT. To apportion, distribute; to divide prop-
erty previously held in common among those en-
titled, assigning to each his ratable portion, to be
held in severalty; to set apart specific property,
a share of a fund, etc., to a distinct party. Millet
v. Bilby, 110 Okl. 241, 237 P. 859, 861.
In the law of corporations, to allot shares, debentures.
etc., is to appropriate them to the applicants or persons
who have applied for them; this is generally done by send-
ing to each applicant a letter of allotment, informing him
that a certain number of shares have been allotted to him.
Sweet.
ALLOTMENT. A share or portion; that which is
allotted; apportionment, division; the distribu-
tion of shares in a public undertaking or corpora-
tion. Reuter v. Reuter's Succession, 206 La. 474,
19 So.2d 209, 212. Assignment. Pace v. Eoff, Tex.
Com.App., 48 S.W.2d 956, 963. Partition; the
distribution of land under an enclosure act. The
term ordinarily and commonly used to describe
land held by Indians after allotment, and before
the issuance of the patent in fee that deprives
the land of its character as Indian country. Estes
v. U. S., C.C.A., 225 F. 980, 981; Harris v. Gray-
son, 90 Okl. 147, 216 P. 446, 449. See Allottee.
ALLOTMENT CERTIFICATE. A document is-
sued to an applicant for shares in a company or
public loan announcing the number of shares
allotted or assigned and the amounts and due
dates of the calls or different payments to be
made on the same. An "allotment certificate,"
when issued to an enrolled member of the Five
Civilized Tribes of the Indian Territory, is an
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ALLUVIO
adjudication of the special tribunal empowered to
decide the question that the party to whom it
issues is entitled to the land, and it is a convey-
ance of the right to this title to the allottee.
Bowen v. Carter, 42 Okl. 565, 144 P. 170, 173.
ALLOTMENT NOTE. In English law, a writing
by a seaman, whereby he makes an assignment of
part of his wages in favor of his wife, father or
mother, grandfather or grandmother, brother or
sister. Motley & Whitley.
ALLOTMENT SYSTEM. Designates the practice
in England of dividing land in small portions for
cultivation by agricultural laborers and other
cottagers at their leisure, and after they have per-
formed their ordinary day's work. Wharton.
ALLOTMENT WARDEN. By the English general
inclosure act, 1845, § 108, when an allotment for
the laboring poor of a district has been made on
an inclosure under the act, the land so allotted is
to be under the management of the incumbent
and church warden of the parish, and two other
persons elected by the parish, and they are to be
styled "the allotment wardens" of the parish.
Sweet.
ALLOTTEE. One to whom an allotment is made,
who receives a ratable share under an allotment;
a person to whom land under an inclosure act or
shares in a public undertaking are allotted.
An "allottee," as the word is used in the act of April 21,
1904 (chapter 1402, 33 Stat. 189-204), is one, generally an
Indian, freedman, or adopted citizen of a tribe of Indians,
to whom a tract of land out of a common holding has been
given by, or under the supervision of, the United States.
Lynch v. Franklin, 37 Okl. 60, 130 P. 599, 600. The word
does not include such allottee's heirs. Bradley v. Goddard,
45 Oki. 77, 145 P. 409, 410.
ALLOW. The word has no rigid or precise mean-
ing, but its import varies according to circum-
stances or context in connection with which it
is used. It may mean bestow, assign, to any one
as his right or due, to accord, or to imply discre-
tion, or unqualified and definite promise to do
some specified thing. Dunlop Sand & Gravel Cor-
poration v. Hospelhorn, 172 Md. 279, 191 A. 701,
706. To approve of, accept as true, approve, ad-
mit, concede, adopt, or fix. Headford Bros. &
Hitchins Foundry Co. v. Associated Manufac-
turers Corporation of America, 224 Iowa 1364, 278
N.W. 624, 628. To grant something as a deduc-
tion or an addition; to abate or deduct; as, to
allow a sum for leakage. Pittsburgh Brewing Co.
v. Commissioner of Internal Revenue, C.C.A.3,
107 F.2d 155, 156. To grant, or permit; as to al-
low an appeal or a marriage; to allow an account
or claim. Also to give a fit portion out of a larger
property or fund. Thurman v. Adams, 82 Miss.
204, 33 So. 944. To sanction, either directly or
indirectly, as opposed to merely suffering a thing
to be done. People v. Duncan, 22 Cal.App. 430,
134 P. 797, 798; to acquiesce in. Luckie v. Dia-
mond Coal Co., 41 Cal.App. 468, 183 P. 178, 181;
Curtis & Gartside Co. v. Pigg, 39 Okl. 31, 134 P.
1125, 1129. To suffer, to tolerate; Gregory v. U.
S., 17 Blatchf. 325, Fed.Cas.No.5,803; to fix;
Hinds v. Marmolejo, 60 Cal. 229. To substitute.
Glenn v. Glenn, 41 Ala. 571. Intent in wills; and
an equivalent of I will; Ramsey v. Hanlon, C.C.
Pa., 33 F. 425.
ALLOWANCE. A deduction, an average pay-
ment, a portion assigned or allowed; the act of
allowing. See Stone v. State, 197 Ala. 293; 72
So. 536, 537; Sawyer v. U. S., C.C.A., 10 F.2d 416,
421. For "Family," see that title.
In army terminology, ordinarily refers to extra and
special items in addition to regular compensation. United
States v. Jackson, S.C., 302 U.S. 628, 58 S.Ct. 390, 392, 82
L. Ed. 488.
As distinguished from a "salary," which is a fixed com-
pensation, decreed by authority and for permanence, and
is paid at stated intervals, and depends upon time, and not
the amount of the services rendered, "allowance" is a
variable quantity. Blaine County v. Pyrah, 32 Idaho, 111,
178 P. 702, 703.
Not synonymous with "alimony". Warne v. Warne, 36
S.D. 573, 156 N.W. 60, 62.
Special allowances. In English practice, in tax-
ing the costs of an action as between party and
party, the taxing officer is, in certain cases, em-
powered to make special allowances; i. e., to al-
low the party costs which the ordinary scale
does not warrant. Sweet.
ALLOWANCE PENDENTE LITE. In the English
chancery division, where property which forms
the subject of proceedings is more than sufficient
to answer all claims in the proceedings, the court
may allow to the parties interested the whole or
part of the income, or (in the case of personalty)
part of the property itself. St. 15 & 16 Vict. c. 86,
§ 57; Daniell, Ch.Pr. 1070.
ALLOWED CLAIM. Against an estate it is a debt
or charge which is valid in law and entitled to
enforcement. Commissioner of Internal Revenue
v. Lyne, C.C.A.1, 90 F.2d 745, 747.
ALLOY. An inferior or cheaper metal mixed
with gold or silver in manufacturing or coining.
As respects coining, the amount of alloy is fixed
by law, and is used to increase the hardness and
durability of the coin.
A compound of two or more metals. Treibacher-Chethis-
che Werke Gesellschaft mit Beschrankter Haftung v. Roes-
sler & Hasslacher Chemical Co., C.C.A.N.Y., 219 F. 210, 211.
A mixture or combination of metals while in state of
fusion. Pittsburgh Iron & Steel Foundries Co. v. Seaman-
Sleeth Co., D.C.Pa., 236 F. 756, 757; Treibacher Chemische
Werke Gesellschaft mit Beschrankter Haftung v. Roessler
& Hasslacher Chemical Co., D.C.N.Y., 214 F. 410, 412.
ALLOYNOUR. L. Fr. One who conceals, steals,
or carries off a thing privately. Britt. c. 17. See
Eloigne.
ALLUVIO MARIS. Lat. In the civil and old
English law, the washing up of the sea; the soil
thus formed; formation of soil or land from the
sea; maritime increase. Hale, Anal. § 8. "Al-
luvio maris is an increase of the land adjoining,
by the projection of the sea, casting up and adding
sand and slubb to the adjoining land, whereby it
is increased, and for the most part by insensible
degrees." Hale, de Jure Mar. pt. 1, c. 6.
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ALLUVION
ALLUVION. That increase of the earth on a
shore or bank of a stream or the sea, by the force
of the water, as by a current or by waves, which
is so gradual that no one can judge how much is
added at each moment of time. Inst. 1, 2, t. 1, §
20. Ang. Water Courses, 53. Jefferis v. East
Omaha Land Co., 134 U.S. 178, 10 Sup.Ct. 518, 33
L.Ed. 872. Willett v. Miller, 176 Okl. 278, 55 P.2d
90, 92. "Accretion" denotes the act. However,
the terms are frequently used synonymously.
Katz v. Patterson, 135 Or. 449, 296 P. 54, 55.
Avulsion is sudden and perceptible. St. Clair
County v. Lovingston, 23 Wall. 46, 23 L.Ed. 59.
See Accretion; Avulsion.
ALLY. A nation which has entered into an al-
liance with another nation. 1 Kent, Comm. 69.`
A citizen or subject of one of two or more al-
lied nations. Siemund v. Schmidt, Mun.Ct.N.Y.,
168 N.Y.S. 935.
ALMANAC. A publication, in which is recounted
the days of the week, month, and year, both com-
mon and particular, often distinguishing the fasts,
feasts, terms, etc., from the common days by prop-
er marks, pointing out also the several changes
of the moon, tides, eclipses, etc.
ALMARIA. The archives, or, as they are some-
times styled, muniments of a church or library.
ALMESFEOH. In Saxon law, alms-fee; alms-
money. Otherwise called "Peter-pence." Cowell.
ALMOIN. Alms; a tenure of lands by divine
service. See Frankalmoigne.
ALMONER. One charged with the distribution
of alms. The office was first instituted in religious
houses and although formerly one of importance
is now in England almost a sinecure.
ALMOXARIFAZGO. In Spanish law, a general
term, signifying both export and import duties,
as well as excise.
ALMS. Charitable donations. Any species of
relief bestowed upon the poor. That which is
given by public authority for the relief of the
poor.
ALMS FEE. Peter-pence (or Peter's pence),
which see.
ALMSHOUSE. A house for the publicly sup-
ported paupers of a city or county. People v.
City of New York, 36 Hun, N.Y., 311. In England
an almshouse is not synonymous with a work-
house or poorhouse, being supported by private
endowment.
It may be a public institution kept up by public reve-
nues, or it may be an institution maintained by private
endowment and contributions, where the indigent, sick,
and poor are cared for without cost to themselves. State
Board of Control v. Buckstegge, 18 Ariz. 277, 158 P. 837,
839.
ALNAGER, or ULNAGER. A sworn officer of the
king whose duty it was to look to the assise of
woolen cloth made throughout the land, and to
the putting on the seals for that purpose ordained,
for which he collected a duty called "alnage."
Cowell; Termes de la Ley.
ALNETUM. In old records, a place where alders
grow, or a grove of alder trees. Doomsday Book;
Co.Litt. 4b.
ALOD, Alode, Alodes, Alodis. L. Lat. In feudal
law, old forms of alodium or allodium (q. v.).
A term used in opposition to feodum or fief, which
means property, the use of which was bestowed upon
another by the proprietor, on condition that the grantee
should perform certain services for the grantor, and upon
the failure of which the property should revert to the orig-
inal possessor. See 1 Poll. & Maitl. 45.
ALODIAN. Sometimes used for anodial, but not
well authorized. Cowell.
ALODIARII. See Allodaril.
ALONE. Apart from others; singly; sole. Sal-
em Capital Flour Mills Co. v. Water-Ditch & Ca-
nal Co., C.C.Or., 33 Fed. 154.
ALONG. Lengthwise of, implying motion or at
or near, distinguished from across. Nicolai v.
Wisconsin Power & Light Co., 227 Wis. 83, 277
N.W. 674, 678. By, on, up to, or over, according
to the subject-matter and context. State v.
Downes, 79 N.H. 505, 112 A. 246; Sioux City
Bridge Co. v. Miller, C.C.A., 12 F.2d 41, 48. The
term does not necessarily mean touching at all
points; Com. v. Franklin, 133 Mass. 569; nor does
it necessarily imply contact, Watts v. City of Win-
field, 101 Kan. 470, 168 P. 319, 321.
ALSO. Besides; as well; in addition; likewise;
in like manner; similarly; too; withal. West
Jersey Trust Co. v. Hayday, 124 N.J.Eq. 85, 199 A.
407, 411. Some other thing; including; further;
furthermore; in the same manner; moreover;
nearly the same as the word "and" or "likewise."
Schilling v. Central California Traction Co., 1 P.
2d 53, 55, 115 Cal.App. 30.
The word imports no more than "item" and may mean
the same as "moreover" ; but not the same as "in like
manner" ; Evans v. Knorr, 4 Rawle (Pa.) 68; nor is it
synonymous with "other," City of Ft. Smith v. Gunter,
106 Ark. 371, 154 S.W. 181, 183. It may be (1) the begin-
ning of an entirely different sentence, or (2) a copulative
carrying on the sense of the immediately preceding words
into those immediately succeeding. Stroud, Jud. Dict.,
citing 1 Jarm. 497 n. ; 1 Salk. 239; Security State Bank v.
Jones, 121 Kan. 396, 247 P. 862, 863.
ALT. In Scotch practice, an abbreviation of
Alter, the other; the opposite party; the defend-
er. 1 Broun, 336, note.
ALTA PRODITIO. L. Lat. In old English law,
high treason. 4 Bl.Comm. 75. See High Treason.
ALTA VIA. L. Lat. In old English law, a high-
way; the highway. 1 Salk. 222. Alta via regia;
the king's highway; "the king's high street."
Finch, Law, b. 2, c. 9.
ALTARAGE. In ecclesiastical law, offerings
made on the altar; all profits which accrue to
the priest by means of the altar. Ayliffe, Parerg.
61.
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ALTERNATIVE
ALTENHEIM. A German word meaning "home
for old people." German Pioneer Verein v. Mey-
er, 70 N.J.Eq. 192, 63 A. 835.
ALTER. To make a change in; to modify; to
vary in some degree; to change some of the ele-
ments or ingredients or details without substitut-
ing an entirely new thing or destroying the iden-
tity of the thing affected. Davis v. Campbell, 93
Iowa, 524, 61 N.W. 1053. To change partially.
Cross v. Nee, D.C.Mo., 18 F.Supp. 589, 594. To
change in one or more respects, but without de-
struction of existence or identity of the thing
changed; to increase or diminish. Kraus v.
Kraus, 301 I1l.App. 606, 22 N.E.2d 862. See Al-
teration; Change.
To change may import the substitution of an entirely
different thing, while to alter is to operate upon a subject-
matter which continues objectively the same while modi-
fied in some particular. To "amend" implies that the
modification made in the subject improves it, which is not
necessarily the case with an alteration. See Ex parte Woo
Jan, D.C.Ky., 228 F. 927, 940.
But "alter" is sometimes used synonymously with
"change," Board of Sup'rs of Yavapai County v. Stephens,
20 Ariz. 115, 177 P. 261, 264, and with "enlarge," City of
Jamestown v. Pennsylvania Gas Co., C.C.A.N.Y., 1 F.2d
871, 883.
The other; the opposite party. See Alt,
ALTER EGO. Second self. 3 C.J.S. Alter Ego.
Theory that subordinate or servient corporation may be
controlled by superior or dominant corporation, so that
dominant corporation may be held liable for subordinate
corporation's negligence. Barnes v. Liebig, 146 Fla. 219, 1
So.2d 247, 253.
To establish the "alter ego" doctrine, it must be shown
that the stockholders disregarded the entity of the corpo-
ration, made corporation a mere conduit for the transac-
tion of their own private business, and that the separate
individualities of the corporation and its stockholders in
fact ceased to exist. Sefton v. San Diego Trust & Savings
Bank, Cal.App., 106 P.2d 974, 984.
The doctrine of "alter ego" does not create assets for
or in corporation, but it simply fastens liability on the
individual who uses the corporation merely as an instru-
mentality in conducting his own personal business, and
that liability springs from fraud perpetrated not on the
corporation, but on third persons dealing with corporation.
Garvin v. Matthews, 193 Wash. 152, 74 P.2d 990, 992.
A new corporation taking over all of mortgaged assets of
old corporation in exchange for all of old corporation's
capital stock and continuing to operate business formerly
operated by old corporation was "alter ego" of old corpo-
ration so as to be obligated to pay annual patent royalty
which old corporation was required to pay, notwithstand-
ing that old corporation retained title to mortgaged assets.
Dummer v. Wheeler Osgood Sales Corp., 198 Wash. 381, 88
P.2d 453, 458.
ALTERATION. Variation; changing; making
different. A change of a thing from one form or
state to another; making a thing different from
what it was without destroying its identity. Paye
v. City of Grosse Pointe, 279 Mich. 254, 271. N.W.
826, 827. See Alter.
As applied to buildings, it is a change or substitution in
a substantial particular of one part of a building for a
building different in that particular; a change or changes
within the superficial limits of an existing structure; an
installation that becomes an integral part of the building
and changes its structural quality; a substantial change
therein; a varying or changing the form or nature of such
building without destroying its identity. Paye v. City of
Grosse Pointe, 279 Mich. 254, 271 N.W. 826, 827.
Alteration of highway means change of course of exist-
ing highway, leaving it substantially the same highway as
before, but with its course in some respects changed. Hue-
ning v. Shenkenberg, 208 Wis. 177, 242 N.W. 552, 553.
An alteration is an act done upon the instru-
ment by which its meaning or language is
changed. If what is written upon or erased from
the instrument has no tendency to produce this
result, or to mislead any person, it is not an al-
teration. Oliver v. Hawley, 5 Neb. 444.
An alteration is said to be material when it af-
fects, or may possibly affect, the rights of the
persons interested in the document.
Language different in legal effect, or change in rights,
interests, or obligations of parties. Bank of Moberly v.
Meals, 316 Mo. 1158, 295 S.W. 73, 77; Commercial Credit
Co. v. Giles, Tex.Civ.App., 207 S.W. 596, 598. It introduces
some change into instrument's terms, meaning, language,
or details. See U. S. v. Sacks, 257 U.S. 37, 42 S.Ct. 38, 39,
66 L. Ed. 118. Strictly speaking, it is some material change
on face of instrument by one of the parties thereto with-
out consent of the other, Johnston v. DePuy, 15 N.J.Misc.
94, 188 A. 742, 743; since a mutual agreement of parties
concerned creates a new agreement. Leake, Cont. 430. If
performed by a mere stranger, it is more technically
described as a spoliation or mutilation. Knox v. Horne,
Tex.Civ.App., 200 S.W. 259, 260; Bercot v. Velkoff, 111 Ind.
App. 323, 41 N.E.2d 686, 692. The term is not properly
applied to any change which involves the substitution of a
practically new document. Kempner v. Simon, 195 N.Y.S.
333, 334, 119 Misc.Rep. 60. And it should in strictness be
reserved for the designation of changes in form or lan-
guage, and not used with reference to modifications in
matters of substance. The term is also to be distinguished
from "defacement." Too, if what is done simply takes
away what was given before, or a part of it under a will, it
is a revocation; but if it gives something in addition or in
substitution, then it is an alteration. Appeal of Miles, 68
Conn. 237, 36 A. 39, 36 L.R.A. 176.
ALTERCATION. Warm contentions in words,
dispute carried on with heat or anger, contro-
versy, wrangle, wordy contest. Ivory v. State,
128 Tex.Cr.R. 408, 81 S.W.2d 696, 698.
ALTERIUS CIRCUMVENTIO ALU NON PRIE-
BET ACTIONEM. The deceiving of one person
does not afford an action to another. Dig. 50, 17,
49.
ALTERNAT. A usage among diplomatists by
which the rank and places of different powers,
who have the same right and pretensions to pre-
cedence, are changed from time to time, either in
a certain regular order or one determined by
lot. In drawing up treaties and conventions, for
example, it is the usage of certain powers to al-
ternate, both in the preamble and the signatures,
so that each power occupies, in the copy intended
to be delivered to it, the first place. Wheat.Int.
Law, § 157.
ALTERNATE LEGACY. See Legacy.
ALTERNATIM. L. Lat. Interchangeably. Litt.
§ 371; Townsh.Pl. 37.
ALTERNATIVA PETITIO NON EST AUDIEN-
DA. An alternative petition or demand is not to
be heard. 5 Coke, 40.
ALTERNATIVE. One or the other of two things;
giving an option or choice; allowing a choice
between two or more things or acts to be done.
See Malone v. Meres, 91 Fla. 709, 109 So. 677, 693.
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ALTERNATIVE
ALTERNATIVE CONTRACT. A contract whose
terms allow of performance by the doing of either
one of several acts at the election of the party
from whom performance is due. Crane v. Peer,
43 N.J.Eq. 553, 4 A. 72.
ALTERNATIVE JUDGMENT. See Judgment.
ALTERNATIVE OBLIGATION. An obligation al-
lowing the obligor to choose which of two things
he will do, the performance of either of which
will satisfy the instrument. A promise to deliv-
er a certain thing or to pay a specified sum of
money is an example of this kind of obligation.
ALTERNATIVE PLEADING. A pleading alleg-
ing substantive facts so disjunctively that it can-
not be determined upon which of them the plead-
er intends to rely as basis for recovery. Groover
v. Savannah Bank & Trust Co., 186 Ga. 476, 198
S.E. 217, 219.
ALTERNATIVE RELIEF. The term "alterna-
tive," as used in Equity Rule 25 (see Fed.Rules
Civ.Proc. rule 8, 28 U.S.C.A.), allowing relief to be
stated and sought in alternative forms, means
mutually exclusive. Boyd v. New York & H. R.
Co., D.C.N.Y., 220 F. 174, 179.
ALTERNATIVE REMAINDERS. Remainders In
which disposition of property is made in alterna-
tive, one to take effect only in case the other does
not, and in substitution of it. Riddle v. Killian,
366 Ill. 294, 8 N.E.2d 629, 634.
ALTERNATIVE REMEDY. Where a new reme-
dy is created in addition to an existing one, they
are called "alternative" if only one can be en-
forced; but if both, "cumulative."
ALTERNATIVE WRIT. A writ commanding the
person against whom it is issued to do a specified
thing, or show cause to the court why he should
not be compelled to do it. Allee v. McCoy, 2
Marv., Del., 465, 36 A. 359. Under the common-
law practice, the first mandamus is an alternative
writ; 3 Bla.Com. 111; but in modern practice this
writ is often dispensed with and its place is taken
by a rule to show cause. See Mandamus.
ALTERNIS VICIBUS. L. Lat. By alternate
turns; at alternate times; alternately. Co.Litt.
4a; Shep.Touch. 206.
ALTERUM NON LIEDERE. Not to injure anoth-
er. This maxim, and two others, honeste vivere,
and suum cuique tribuere, (q. v.,) are considered
by Justinian as fundamental principles upon
which all the rules of law are based. Inst. 1, 1, 3.
ALTERUTER. Lat. One of two; either.
ALTIUS NON TOLLENDI. In the civil law, a
servitude due by the owner of a house, by which
he is restrained from building beyond a certain
height. Dig. 8, 2, 4; Sandars, Just.Inst. 119.
ALTIUS TOLLENDI. In the civil law, a servi-
tude which consists in the right, to him who is
entitled to it, to build his house as high as he may
think proper. In general, however, every one en-
joys this privilege, unless he is restrained by some
contrary title. Sandars, Just.Inst. 119.
ALTO ET BASSO. High and low. This phrase
is applied to an agreement made between two
contending parties to submit all matters in dis-
pute, alto et basso, to arbitration. Cowell.
ALTUM MARE. L. Lat. In old English law, the
high sea, or seas. Co.Litt. 260b. The deep sea.
Super altum mare, on the high seas. Hob. 212b.
ALUMNUS. A child which one has nursed; a
foster-child. Dig. 40, 2, 14.
Also a graduate from a school, college, or oth-
er institution of learning.
ALVEUS. The bed or channel through which the
stream flows when it runs within its ordinary
channel. Calvinus, Lex.
Alveus derelictus, a deserted channel. Mackeld.
Rom.Law, § 274.
AMALGAMATION. Union of different races, or
diverse elements, societies, or corporations, so as
to form a homogeneous whole or new body; inter-
fusion; intermarriage; consolidation; coales-
cence; as, the amalgamation of stock. Stand.
Dict.
To join in a single body two or more associations, organ-
izations, or corporations. Peterson v. Evans, 288 Ill.App.
623, 6 N.E.2d 520.
In England it is applied to the merger or consolidation
of two incorporated companies or societies.
The word has no definite meaning; it involves the blend-
ing of two concerns into one; 1904, 2 Ch. 268.
AMALPHITAN CODE OR TABLE. A collection
of sea-laws, compiled about the end of the elev-
enth century, by the people of Amalphi.
It consists of the laws on maritime subjects, which were
or had been in force in countries bordering on the Medi-
terranean; and was for a long time received as authority
in those countries. Azuni; Wharton. It became a part
of the law of the sea; The Scotia, 14 Wall., U.S., 170, 20
L.Ed. 822. See Code.
AMANUENSIS. One who writes on behalf of
another that which he dictates.
AMBACTUS. A messenger; a servant sent about;
one whose services his master hired out. Spel-
man.
AMBASCIATOR. A person sent about in the
service of another; a person sent on a service,
A word of frequent occurrence in the writers of
the middle ages. Spelman.
AMBASSADOR. In international law, a public
officer, clothed with high diplomatic powers, com-
missioned by a sovereign prince or state to trans-
act the international business of his government
at the court of the country to which he is sent.
The commissioner who represents one country in the
seat of government of another. He is a public minister,
which, usually, a consul is not. Brown. A person sent by
one sovereign to another, with authority, by letters of
credence, to treat on affairs of state. Jacob. The personal
representatives of the head of the state which sends them,
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AMBULANCE
entitled to special honors and special privileges and having
varied duties; mouthpiece of communications, government
informant, and protector of citizens of his country. Rus-
sian Government v. Lehigh Valley R. Co., D.C.N.Y., 293
F. 133. See Letter of Credence; Minister.
A distinction was formerly made between Ambassadors
Extraordinary, who were sent to conduct special business
or to remain for an indeterminate period, and Ambassadors
Ordinary, who were sent on permanent missions; but this
distinction is no longer observed.
AMBER, or AMBRA. In old English law, a meas-
ure of four bushels.
AMBEDEXTER. Skillful with both hands; one
who plays on both sides. Applied anciently to an
attorney who took pay from both sides, and sub-
sequently to a juror guilty of the same offense.
Cowell.
AMBIGUA RESPONSIO CONTRA PROFEREN-
TEM EST ACCIPIENDA. An ambiguous answer
is to be taken against (is not to be construed in
favor of) him who offers it. 10 Coke, 59.
AMBIGUIS CASIBUS SEMPER PRLESUMITUR
PRO REGE. In doubtful cases, the presumption
always is in behalf of the crown. Lofft, Append.
248.
A1ti1BIG1UITAS. Lat. From ambiguus, doubtful,
uncertain, obscure. Ambiguity; uncertainty of
meaning.
Ambiguitas latens, a latent ambiguity; ambigui-
tas patens, a patent ambiguity. See Ambiguity.
AMBIGUITAS CONTRA STIP1ULATOREM EST.
Doubtful words will be construed most strongly
against the party using them.
AMBIGUITAS VERBORUM LATENS VERWICA-
TIONE SUPPLETUR; NAM QUOD EX FACTO
ORITUR AMBIGUUM VERIFICATIONE FACTI
TOLLITUR. A latent ambiguity in the language
may be removed by evidence; for whatever am-
biguity arises from an extrinsic fact may be ex-
plained by extrinsic evidence. Bac.Max.Reg. 23.
Said to be "an unprofitable subtlety; inadequate
and uninstructive." Prof. J. B. Thayer in 6 Harv.
L. 417.
AMBIGUITAS VERBORUM PATENS NULLA
VERIFICATIONE EXCLUDITUR. A patent am-
biguity cannot be cleared up by extrinsic evidence
(or is never holpen by averment). Lofft, 249;
Bacon, Max. 25.
AMBIGUITY. Doubtfulness; doubleness of mean-
ing. Chapman v. Metropolitan Life Ins. Co., 172
S.C. 250, 173 S.E. 801, 803. Duplicity, indistinct-
ness, or uncertainty of meaning of an expression
used in a written instrument. Arkansas Amuse-
ment Corporation v. Kempner, C.C.A.Ark., 57 F.
2d 466, 472. Want of clearness or definiteness.,
difficult to comprehend or distinguish; of doubt-
ful import. Business Men's Assur. Ass'n v. Read,
Tex.Civ.App., 48 S.W.2d 678, 680. For "Extrinsic
Ambiguity," see that title.
Ambiguity of language is to be distinguished from unin-
telligibility and inaccuracy, for words cannot be said to be
ambiguous unless their signification seems doubtful and
uncertain to persons of competent skill and knowledge to
under6tand them. Story, Contr. 272. It does not include
uncertainty arising from the use of peculiar words, or of
common words in a peculiar sense. Wig. Wills, 174; In
re Milliette's Estate, 206 N.Y.S. 342, 349, 123 Misc.Rep.
745. It is latent where the language employed is clear and
intelligible and suggests but a single meaning, but some
extrinsic fact or extraneous evidence creates a necessity
for interpretation or a choice among two or more possible
meanings, as where a description apparently plain and
unambiguous is shown to fit different pieces of property.
Logue v. Von Almen, 379 Ill. 208, 40 N.E.2d 73, 82, 140
A.L.R. 251. A patent ambiguity is that which appears on
the face of the instrument, and arises from the defective,
obscure, or insensible language used. Carter v. Holman,
60 Mo. 504; Stokeley v. Gordon, 8 Md. 505; Carroll v.
Cave Hill Cemetery Co., 172 Ky. 204, 189 S.W. 186, 190.
AMBIGUITY UPON THE FACTUM. An ambigui-
ty in relation to the very foundation of the instru-
ment itself, as distinguished from an ambiguity in
regard to the construction of its terms.
The term is applied, for instance, to a doubt as to
whether a testator meant a particular clause to be a part
of the will, or whether it was introduced with his knowl-
edge, or whether a codicil was meant to republish a former
will, or whether the residuary clause was accidentally
omitted. Eatherly v. Eatherly, 1 Cold., Tenn., 461, 465, 78
Am. Dec. 499.
AMBIGUUM PACTUM CONTRA VENDITOREM
INTERPRETANDUM EST. An ambiguous con-
tract is to be interpreted against the seller.
AMBIGUUM PLACITUM INTERPRETARI DEB-
ET CONTRA PROFERENTEM. An ambiguous
plea ought to be interpreted against the party
pleading it. Co.Litt. 303b.
AMBIT. A boundary line, as going around a
place; an exterior or inclosing line or limit. Elli-
cott v. Pearl, 10 Pet., U.S., 412, 442, 9 L.Ed. 475.
The limits or circumference of a power or jurisdiction;
the line circumscribing any subject-matter. As to the
ambit of a port, see Leonis Steamship Co.; Ltd., v. Rank,
Ltd., [1907] 1 K.B. 344, 352; Pyman Bros. v. Dreyfus
Bros. & Co. [1890] 24 Q.B.D. 152, 155.
AMBITUS. In the Roman law, a going around;
a path worn by going around. A space of at least
two and a half feet in width, between neighboring
houses, left for the convenience of going around
them. Calvin.
The procuring of a public office by money or
gifts; the unlawful buying and selling of a public
office. Inst. 4, 18, 11; Dig. 48, 14.
AMBLOTIC. Having the power to cause abor-
tion; anything used to produce abortion.
AMBULANCE. A vehicle for the conveyance of
the sick or wounded. In time of war they are
considered neutral and must be respected by the
belligerents. Oppenheim, Int.L. 126.
AMBULANCE CHASER. A lawyer or his agent
who follows up accidents in the streets and tries
to induce the injured person to sue for damages.
Kelley v. Boyne, 239 Mich. 204, 214 N.W. 316, 318,
53 A.L.R. 273.
A popular name for one who solicits negligence cases
for an attorney. In re Newell, 160 N.Y.S. 275, 278, 174 App.
Div. 94. One seeking out persons and directing them tx)
an attorney in consideration of a percentage of the recov-
ery. In re Mitgang, 385 Ill. 52 N.E.2d 807, 816.
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AMBULANCE
AMBULANCE CHASING. A term descriptive of
the practice of some attorneys, on hearing of a
personal injury which may have been caused by
the negligence or wrongful act of another, of at
once seeking out the injured person with a view
to securing authority to bring action on account
of the injury. Chunes v. Duluth, W. & P. Ry. Co.,
D.C.Minn., 298 F. 964. Laymen's acquainting
themselves with occurrence of accidents and ap-
proaching injured persons or their representatives
with a view toward soliciting employment for an
attorney in the litigation arising from the acci-
dent State ex rel. Wright v. Hinckle, 137 Neb.
735, 291 N.W. 68, 72.
AMBULATORIA EST VOLUNTAS DEFUNCT!
USQUE AD VITAE SUPREMUM EXITUIVI. The
will of a deceased person is ambulatory until the
latest moment of life. Dig. 34, 4, 4.
AMBULATORY. (Lat. ambulare, to walk
about). Movable; revocable; subject to change.
Ambulatoria voluntas (a changeable will) de-
notes the power which a testator possesses of al-
tering his will during his life-time. Hattersley v.
Bissett, 50 N.J.Eq. 577, 25 Atl. 332.
Courts. The court of king's bench in England
was formerly called an ambulatory court, because
it followed the king's person, and was held some-
times in one place and sometimes in another.
So, in France, the supreme court or parliament
was originally ambulatory. 3 Bl.Comm. 38, 39, 41.
A sheriff's return has been said to be ambula-
tory until it is filed. Wilmot, J., 3 Burr. 1644.
AMBUSH. The noun "ambush" means (1) the
act of attacking an enemy unexpectedly from a
concealed station; (2) a concealed station, where
troops or enemies lie in wait to attack by surprise,
an ambuscade; (3) troops posted in a concealed
place for attacking by surprise. The verb "am-
bush" means to lie in wait, to surprise, to place in
ambush. Dale County v. Gunter, 46 Ala. 118, 142,
referred to in Darneal v. State, 14 Okl.Cr. 540,
174 P. 290, 292, 1 A.L.R. 638.
AMELIORATING WASTE. An act of lessee,
though technically constituting waste, yet in fact
resulting in improving instead of doing injury to
land. J. H. Bellows Co. v. Covell, 28 Ohio App.
277, 162 N.E. 621, 622.
AMELIORATIONS. Betterments; improve-
ments. 6 Low.Can. 294; 9 Id. 503.
AMENABLE. Subject to answer to the law; ac-
countable; responsible; liable to punishment.
Pickelsimer v. Glazener, 173 N.C. 630, 92 S.E. 700,
704.
Also means tractable, that may be easily led or
governed; formerly applied to a wife who is gov-
ernable by her husband. Cowell.
AMEND. To improve. To change for the better
by removing defects or faults. Cross v. Nee, D.C.
Mo., 18 F.Supp. 589, 594. To change, correct, re-
vise. Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d
658, 660.
AMENDE HONORABLE. An apology.
In old English law, it was a penalty imposed upon a per-
son by way of disgrace or infamy, as a punishment for any
offense, or for the purpose of making reparation for any
injury done to another, as the walking into church in a
white sheet, with a rope about the neck and a torch in
the hand, and begging the pardon of God, or the king, or
any private individual, for some delinquency.
A punishment somewhat similar to this, which bore the
same name, was common in France for offenses against
public decency or morality. It was abolished by the law
of the 25th of September, 1791; Merlin, Rêpert. In 1826
it was re-introduced in cases of sacrilege and was finally
abolished in 1830.
AMENDMENT. A change, ordinarily for the bet-
ter. Musher v. Perera, 162 Md. 44, 158 A. 14, 15.
An amelioration of the thing without involving
the idea of any change in substance or essence.
Van Deusen v. Ruth, 343 Mo. 1096, 125 S.W.2d 1, 3.
Any writing made or proposed as an improve-
ment of some principal writing. Ex parte Woo
Jan, D.C.Ky., 228 F. 927, 941; Couch v. Southern
Methodist University, Tex.Civ.App., 290 S.W. 256,
260.
In legislation, it is a modification or alteration
proposed to be made in a bill on its passage, or
an enacted law; also such modification or change
when made. Brake v. Callison, C.C.Fla., 122 Fed.
722; State v. MacQueen, 82 W.Va. 44, 95 S.E. 666,
668.
It is to be distinguished from a "substitute for a bill."
In re Ross, 86 N.J.Law, 387, 94 A. 304, 306. It is an altera-
tion in the law already existing, leaving some part of the
original still standing. State ex inf. Crain ex rel. Peebles
v. Moore, 339 Mo. 492, 99 S.W.2d 17, 19. To effect an
improvement or better carry out the purpose for which
statute was framed. State ex rel. Foster v. Evatt, 144 Ohio
St. 65, 56 N.E.2d 265, 282. And it includes additions to, as
well as corrections of, matters already treated. Christian
Feigenspan, Inc., v. Bodine, D.C.N.J., 264 F. 186, 190. See,
also, State v. Fulton, 99 Ohio St. 168, 124 N.E. 172, 175.
In practice it is the correction of error commit-
ted in progress of a cause. Lintott v. McCluskey,
105 N.J.Eq. 354, 148 A. 161, 164. The correction
of an error committed in any process, pleading, or
proceeding at law, or in equity, and which is done
either of course, or by the consent of parties, or
upon motion to the court in which the proceeding
is pending. 3 Bl.Comm. 407, 448; 1 Tidd, Pr. 696.
Hardin v. Boyd, 113 U.S. 756, 5 Sup.Ct. 771, 28 L.
Ed. 1141.
An amendment to a pleading, as distinguished from a
"supplemental pleading" ( q. v.), has reference to facts
existing at the time of the commencement of the action.
Fisher v. Bullock, 198 N.Y.S. 538, 540, 204 App. Div. 523.
And it is the correction of some error or mistake in a
pleading already before the court. Pantaleo v. Colt's Pat-
ent Fire Arms Mfg. Co., D.C.N.Y., 13 F.Supp. 989, 990.
AMENDS. A satisfaction given by a wrongdoer
to the party injured, for a wrong committed. 1
Lil.Reg. 81.
AMENITY. In real property law, such circum-
stances, in regard to situation, outlook, access to a
water course, or the like, as enhance the pleasant-
ness or desirability of an estate for purposes of
residence, or contribute to the pleasure and enjoy-
ment of the occupants, rather than to their in-
dispensable needs.
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AMICUS
In England, upon the building of a railway or the con-
struction of other public works, "amenity damages" maY
be given for the defacement of pleasure grounds, the
impairment of riparian rights, or other destruction of or
injury to the amenities of the estate.
In the law of easements, an "amenity" consists in
restraining the owner from doing that with and on his
property which, but for the grant or covenant, he might
lawfully have done; sometimes called a "negative ease-
ment" as distinguished from that class of easements which
compel the owner to suffer something to be done on his
property by another. Equitable Life Assur. Soc. v. Bren-
nan, 30 Abb.N.C. 260, 24 N.Y.Supp. 784, 788. A restrictive
covenant. South Buffalo Stores v. W. T. Grant Co., 274
N.Y.S. 549, 555, 153 Misc. 76.
AMENS. See Demens.
AMENTIA. Insanity; idiocy. See Insanity.
AMERALIUS. L. Lat. A naval commander, un-
der the eastern Roman empire, but not of the
highest rank; the origin, according to Spelman,
of the modern title and office of admiral. Spel-
man.
AMERCE. To impose an amercement or fine;
to punish by a fine or penalty.
AMERCEMENT. A pecuniary penalty, in the
nature of a fine, imposed upon a person for some
fault or misconduct, he being "in mercy" for his
offense. It was assessed by the peers of the de-
linquent, or the affeerors, or imposed arbitrarily
at the discretion of the court or the lord. Good-
year v. Sawyer, C.C.Tenn., 17 Fed. 9.
The difference between amercements and fines is as fol-
lows : The latter are certain, and are created by some
statute ; they can only be imposed and assessed by courts
of record; the former are arbitrarily imposed. Termes
de la Ley, 40.
The word "amercement" has long been especially used
of a mulct or penalty, imposed by a court upon its own
officers for neglect of duty, or failure to pay over moneys
collected. In particular, the remedy against a sheriff for
failing to levy an execution or make return of proceeds of
sale is, in several of the states, known as "amercement."
In others, the same result is reached by process of attach-
ment. Abbott. Stansbury v. Mfg. Co., 5 N.J.Law, 441.
AMERCEMENT ROYAL. In Great Britain a pen-
alty imposed on an officer for a misdemeanor in
his office.
AMERICAN. Pertaining to the western hemis-
phere or in a more restricted sense to the United
States. See Beardsley v. Selectmen of Bridge-
port, 53 Conn. 493, 3 A. 557, 55 Am.Rep. 152. It
was assumed in Life Photo Film Corp. v. Bell, 90
Misc.Rep. 469, 154 N.Y.S. 763, 764, that the term
"American" included all classes of citizens, native
and naturalized, irrespective of where they origi-
nally came from.
AMERICAN AGENCY SYSTEM. Its purport is
that upon termination of an insurance agency,
if the agent's financial obligations to the insurer
are paid in full, all rights in the expiration data
of existing insurance procured by the agent be-
long to him. Woodruff v. Auto Owners Ins. Co.,
300 Mich. 54, 1 N.W.2d 450, 453.
AMERICAN CLAUSE. In marine insurance, a
proviso in a policy to the effect that, in case of
any subsequent insurance, the insurer shall nev-
ertheless be answerable for the full extent of the
sum subscribed by him, without right to claim
contribution from subsequent underwriters.
American Ins. Co. v. Griswold, 14 Wend., N.Y.,
399.
AMERICAN EXPERIENCE TABLE OF MOR-
TALITY. A series of tables dealing with life in-
surance, costs and values, varying according to
the age of the insured, the period during which
the policy has been in force, and the term of the
particular policy. Horton v. Atlantic Life Ins.
Co., 187 S.C. 155, 197 S.E. 512, 514, 116 A.L.R. 788.
AMEUBLISSEMENT. In French law, a species
of agreement which by a fiction gives to immov-
able goods the quality of movable. Merl. Rêpert.,
1 Low.Can. 25, 58.
AMI; AMY. A friend; as alien ami, an alien be-
longing to a nation at peace with us; prochein
ami, a next friend suing or defending for an in-
f ant, married woman, etc.
AMICABLE. Friendly; mutually forbearing;
agreed or assented to by parties having conflict-
ing interests or a dispute; as opposed to hostile
or adversary.
AMICABLE ACTION. An action brought and
carried on by the mutual consent and arrange-
ment of the parties, to obtain judgment of court
on a doubtful question of law, the facts being usu-
ally settled by agreement. Lord v. Veazie, 8 How.
251, 12 L.Ed. 1067. See Case Stated.
AMIABLES COMPOSITEURS. See Amicable
Compounders.
AMICABLE COMPOUNDERS. In Louisiana law
and practice, amicable compounders are arbitra-
tors authorized to abate something of the strict-
ness of the law in favor of natural equity.
AMICABLE SCIRE FACIAS TO REVIVE A
JUDGMENT. A written agreement, signed by the
person to be bound by the revival, in the nature
of a writ of scire facias with a confession of judg-
ment thereon, which must be duly docketed, but
which requires no judicial action on the part of
the court, and which has the force and effect of
a judgment rendered upon an adverse or contest-
ed writ of scire facias. Second Nat. Bank, for
Use of Federal Reserve Bank of Philadelphia, v.
Faber, 332 Pa. 124, 2 A.2d 747, 749.
AMICUS CURVE, Lat. A friend of the court.
A by-stander (usually a counsellor) who interposes and
volunteers information upon some matter of law in regard
to which the judge is doubtful or mistaken, Fort Worth
& D. C. Ry. Co. v. Greathouse, Tex.Civ.App., 41 S.W.2d
418, 422; or upon a matter of which the court may take
judicial cognizance. The Claveresk, C.C.A.N.Y., 264 F. 276,
279; In re Perry, 83 Ind. App. 456, 148 N.E. 163, 165.
Implies friendly intervention of counsel to remind court of
legal matter which has escaped its notice, and regarding
which it appears to be in danger of going wrong. Blanch-
ard v. Boston & M. R., 86 N.H. 263, 167 A. 158, 160.
Also a person who has no right to appear in a
suit but is allowed to introduce argument, author-
ity, or evidence to protect his interests. Ladue v.
Goodhead, 181 Misc. 807, 44 N.Y.S.2d 783, 787.
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AMIRAL
AMIRAL. Fr. In French maritime law, admiral.
Ord. de la Mar. liv. 1, tit. 1, § 1.
.NMITA. Lat. An aunt on the father's side.
Amita magna. A great-aunt on the father's side.
Amita major. A great-great aunt on the father's
side. Amita maxima. A great-great-great aunt,
or a great-great-grandfather's sister. Calvinus,
Lex.
AMITINUS. The child of a brother or sister; a
cousin; one who has the same grandfather, but
different father and mother. Calvinus, Lex.
AMITTERE. Lat. In the civil and old English
law, to lose. Hence the old Scotch "amitt."
AMITTERE CURIAM. To lose the court; to be
deprived of the privilege of attending the court.
AMITTERE LEGEM TERRIE. To lose the protec-
tion afforded by the law of the land.
AMITTERE LIBERAM LEGEM. To lose one's
frank-law.
A term having the same meaning as amittere legem ter-
rce, (q. v.)  He who lost his law lost the protection
extended by the law to a freeman, and became subject to
the same law as thralls or serfs attached to the land.
To lose the privilege of giving evidence under oath in
any court; to become infamous, and incapable of giving
evidence. Glanville 2. If either party in a wager of battle
cried "craven" he was condemned amittere liberam legem;
3 Bla.Com. 340.
AMNESIA. Loss of memory.
AMNESTY. A sovereign act of oblivion for past
acts, granted by a government to all persons (or
to certain persons) who have been guilty of crime
or delict, generally political offenses,—treason, se-
dition, rebellion,—and often conditioned upon
their return to obedience and duty within a pre-
scribed time.
A general pardon or proclamation of such par-
don from subjects' offenses against the govern-
ment; while usually exerted in behalf of certain
classes of persons, subject to trial, but not con-
victed, it is not confined to such cases. Common-
wealth v. Hamburg Magistrate, 104 Pa.Super. 221,
158 A. 629, 631.
A declaration of the person or persons who have
newly acquired or recovered the sovereign power
in a state, by which they pardon all persons who
composed, supported, or obeyed the government
which has been overthrowti.
The word "amnesty" properly belongs to international
law, and is applied *to treaties of peace following a state
of war, and signifies there the burial in oblivion of the
particular cause of strife, so that that shall not be again a
cause for war between the parties; and this signification of
"amnesty" is fully and poetically expressed in the Indian
custom of burying the hatchet. And so amnesty is applied
to rebellions which by their magnitude are brought within
the rules of international law. It means only "oblivion,"
and never is a grant. Knote v. U. S., 10 Ct.C1. 407.
Amnesty is the abolition and forgetfulness of the offense;
pardon is forgiveness. Knote v. U. S., 95 U.S. 149, 152, 24
L.Ed. 442. The first is usually addressed to crimes against
the sovereignty of the state, to political offenses; the sec-
ond condones infractions of the peace of the state. Bur-
dick v. United States, 236 U.S. 79, 35 S.Ct. 267, 271, 59
L.Ed. 476.
Express amnesty is one granted in direct terms.
Implied amnesty is one which results when a
treaty of peace is made between contending par-
ries. Vattel, 1, 4, c. 2, § 20.
AMONG. Mingled with or in the same group or
class. Dwight Mfg. Co. v. Word, 200 Ala. 221, 75
So. 979, 983, Genung v. Best, 100 N.J.Eq. 250, 135
A. 514, 516. Intermingled with. Eddings v. South-
ern Dairies, D.C.S.C., 42 F.Supp. 664, 666.
Commerce among the states cannot stop at the external
boundary line of each state. Gibbons v. Ogden, 9 Wheat.
194, 6 L.Ed. 23; Ft. Smith & W. R. Co. v. Blevins, 35 Okl.
378, 130 P. 525, 529. Where property is directed by will
to be distributed among several persons, it cannot be all
given to one, nor can any of the persons be wholly
excluded from the distribution. Hudson v. Hudson, 6
Munf., Va., 352.
"Among" is sometimes held to be equivalent to
"between" ; Hick's Estate, 134 Pa. 507, 19 A. 705; Records
v. Fields, 155 Mo. 314, 55 S.W. 1021. But "among" implies
more than two objects as differentiated with "between."
St. Louis Union Trust Co. v. Little, 320 Mo. 1058, 10 S.W.2d
47, 53.
AMORTISE. See Amortize.
AMORTISSEMENT. (Fr.) The redemption of a
debt by a sinking fund.
AMORTIZATION. An alienation of lands or tene-
ments in mortmain. The reduction of the proper-
ty of lands or tenements to mortmain.
In its modern sense, amortization is the opera-
tion of paying off bonds, stock, a mortgage, or
other indebtedness, commonly of a state or cor-
poration, by installments, or by a sinking fund.
An "amortization plan" for the payment of an in-
debtedness is one where there are partial pay-
ments of the principal, and accrued interest, at
stated periods for a definite time, at the expira-
tion of which the entire indebtedness will be extin-
guished. Bystra v. Federal Land Bank of Colum-
bia, 82 Fla. 472, 90 So. 478, 480; Applestein v.
Royalty Realty Corporation, 181 Md. 171, 28 A.2d
830, 831.
AMORTIZE. To alien lands in mortmain.
To destroy, kill, or deaden. Elliott v. U. S.,
D.C.Me., 16 F.2d 164, 165. See Amortization.
AMOTIO. In the civil law, a moving or taking
away. "The slightest amotio is sufficient to con-
stitute theft, if the animus furandi be clearly es-
tablished." 1 Swint. 205. See Amotion.
AMOTION. A putting or turning out; disposses-
sion of lands. Ouster is an amotion of possession.
3 Bl.Comm. 199, 208.
A moving or carrying away; the wrongful tak-
ing of personal chattels. Archb.Civil PLIntrod.
2, § 3.
In corporation law, the act of removing an officer, or
official representative, of a corporation from his office or
official station, before the end of the term for which he
was elected or appointed, but without depriving him of
membership in the body corporate. In this last respect the
term differs from "disfranchisement," or expulsion. Rich-
ards v. Clarksburg, 30 W.Va. 491, 4 S.E. 774; In re Koch,
257 N.Y. 318, 178 N.E. 545, 546.
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AMOUNT. The effect, substance, or result; the
total or aggregate sum. Hilburn v. Railroad Co.,
23 Mont. 229, 58 P. 551.
The sum of principal and interest, McCabe v. Cary's
Ex'rs, 135 Va. 428, 116 S.E. 485, 491. But see In re Stone-
man, Sur., 146 N.Y.S. 172, 175 (interest excluded). See,
also, Candelaria v. Gutierrez, 28 N.M. 434, 213 P. 1037,
holding that the "amount of judgment" within a statute
requiring a bond for supersedeas does not include interest
or costs.
AMOUNT COVERED. In insurance, the amount
that is insured, and for which underwriters are
liable for loss under a policy of insurance.
AMOUNT IN CONTROVERSY. The damages
claimed or relief demanded; the amount claimed
or sued for. Glenwood Light & Water Co. v. Mu-
tual Light, Heat & Power Co., 239 U.S. 121, 36
S.Ct. 30, 60 L.Ed. 174; Smith v. Giles, 65 Tex, 341;
Wabash Ry. Co. v. Vanlandingham, C.C.A.Mo., 53
F.2d 51.
Value of property. Peterson v. Sucro, C.C.A.N.C., 93
F.2d 878, 114 A.L.R. 890. Value of the property interest
in trade-name. Beneficial Industrial Loan Corporation v.
Kline, C.C.A.Iowa, 132 F.2d 520, 525. Value of the object
sought to be gained by the suit. Boesenberg v. Chicago
Title & Trust Co., C.C.A.I11., 128 F.2d 245, 246. Aggregate
amount of all causes of action properly joined in action
at law. Firestone Tire & Rubber Co. v. Brent, D.C.N.Y.,
2 F.Supp. 425, 426. Contra. Plaintiffs' claims could not be
aggregated for jurisdictional purposes.  Independence
Shares Corporation v. Deckert, C.C.A.Pa., 108 F.2d 51, 53.
AMOUNT IN DISPUTE. Value in money of the
relief prayed for. Finley v. Smith, Mo.App., 170
S.W.2d 166, 170; or sought but denied, Bushnell
v. Mississippi & Fox River Drainage Dist. of Clark
County, 340 Mo. 811, 102 S.W.2d 871, 873, and in-
cludes value of thing in contest where a thing, in-
stead of an amount, is in dispute. Noel Estate V.
Louisiana Oil Refining Corporation, La.App., 170
So. 272, 273.
AMOUNT OF LOSS. In insurance, the diminu-
tion, destruction, or defeat of the value of, or of
the charge upon, the insured subject to the as-
sured, by the direct consequence of the operation
of the risk insured against, according to its value
in the policy, or in contribution for loss, so far
as its value is covered by the insurance.
AMOUNT TO. To reach in the aggregate, to rise
to or reach by accumulation of particular sums or
quantities. Peabody v. Forest Preserve District
of Cook County, 320 Ill. 454, 151 N.E. 271, 274.
AMOVE. To remove from a post or station. 3
C.J.S. p. 1059.
AMOVEAS MANUS. Lat. That you remove your
hands.
After office found, the king was entitled to the things
forfeited, either lands or personal property; the remedy
for a person aggrieved was by "petition," or "monstrans
de droit," or "traverses," to establish his superior right.
Thereupon a writ issued, quod manus domini regis amove-
antur. 3 Bl.Comm. 260.
AMPARO. In Spanish-American law, a document
issued to a claimant of land as a protection to
him, until a survey can be ordered, and the title
of possession issued by an authorized commission-
er. Trimble v. Smither's Adm'r, 1 Tex. 790.
AMPLIATION. Action of judge in merely defer-
ring the cause for further examination constitutes
"ampliation," practice in such instances being for
judge to make the usual notation of non liquet.
Sonnier v. Sonnier, 14 La.App. 588, 130 So. 133,
135.
In civil law, a deferring of judgment until a
cause be further examined. Calvin.; Cowell. An
order for the rehearing of a cause on a day ap-
pointed, for the sake of more ample information.
Halifax, Anal. b. 3, c. 13, n. 32.
In this case, the judges pronounced the word amplius,
or by writing the letters N. L. for non liquet (q. v.), sig-
nifying that the cause was not clear. It is very similar to
the common-law practice of entering cur. adv. vult in sim-
ilar cases.
In French law, a duplicate of an acquittance or
other instrument. A notary's copy of acts passed
before him, delivered to the parties.
AMPLIUS. In the Roman law, more; further;
more time.
A word which the praetor pronounced in cases where
there was any obscurity in a cause, and the judices were
uncertain whether to condemn or acquit; by which the
case was deferred to a day named. Adam, Rom. Ant. 287.
AMPUTATION OF RIGHT HAND. An ancient
punishment for a blow given in a superior court;
or for assaulting a judge, sitting in the court.
AMUSEMENT. Pastime; diversion; enjoyment.
A pleasurable occupation of the senses, or that
which furnishes it." Young v. Board of Trustees
of Broadwater County High School, 90 Mont. 576,
4 P.2d 725, 726,
AMY. See Ami; Prochein Ami.
AN. The English indefinite article. Equivalent
to "one" or "any"; seldom used to denote plurali-
ty. Kaufman v. Superior Court, 115 Cal. 152, 46
Pac. 904.
AN ET JOUR. Fr. Year and day; a year and a
day.
AN, JOUR, ET WASTE. In feudal law, year, day,
and waste. A forfeiture of the lands to the crown
incurred by the felony of the tenant, after which
time the land escheats to the lord. Termes de la
Ley, 40. See Year, Day, and Waste.
ANACRISIS. In the civil law, an investigation
of truth, interrogation of witnesses, and inquiry
made into any fact, especially by torture.
ANAESTHESIA. In medical jurisprudence. (1)
Loss of sensation, or insensibility to pain, general
or local, induced by the administration or applica-
tion of certain drugs such as ether, nitrous oxide
gas, or cocaine. (2) Defect of sensation, or more
or less complete insensibility to pain, existing in
various parts of the body as a result of certain
diseases of the nervous system.
ANAGRAPH. A register, inventory, or commen-
tary.
ANALOGOUS. Derived from the Greek ana, up,
and logos, ratio. Means bearing some resem-
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blance. Irving v. Kerlow Steel Flooring Co., D.C.
N.J., 25 F.Supp. 901, 902.
If elements and purposes of one art are so related and
similar to those of another as to make an appeal to one
skilled in such art, the two arts are "analogous". Cope-
man Laboratories Co. v. General Plastics Corp., C.C.A.Ill.,
149 F.2d 962, 963.
ANALOGY. In logic. Identity or similarity of
proportion.
Where there is no precedent in point, in cases on the
same subject, lawyers have recourse to cases on a different
subject-matter, but governed by the same general princi-
ple. This is reasoning by analogy. Wharton.
The similitude of relations which exist between things
compared. See Smith v. State, 63 Ala. 58.
"Analogy" does not mean identity, but implies a dif-
ference. Sturm v. Ulrich, C.C.A.Okl., 10 F.2d 9, 11.
ANALYTICAL JURISPRUDENCE. A theory
and system of jurisprudence wrought out neither
by inquiring for ethical principles or the dictates
of the sentiments of justice nor by the rules which
may be actually in force, but by analyzing, classi-
fying and comparing various legal conceptions.
See Jurisprudence.
ANAPHRODISIA. In medical jurisprudence, im-
potentia cceundi; frigidity; incapacity for sexual
intercourse existing in' either man or woman, and
in the latter case sometimes called "dyspareunia."
ANARCHIST. One who professes and advocates
the doctrines of anarchy, q. v. And see Cerveny
v. Chicago Daily News Co., 139 Ill. 345, 28 N.E.
692, 13 L.R.A. 864. In the immigration statutes, it
includes, not only persons who advocate the over-
throw of organized government by force, but also
those who believe in the absence of government
as a political ideal, and seek the same end through
propaganda. Ex parte Caminita, D.C.N.Y., 291 F.
913, 915.
ANARCHY. Absence of government; state of
society where there is no law or supreme power;
lawlessness or political disorder; destructive of
and confusion in, government. People v. Mintz,
106 Cal.App. 725, 290 P. 93, 98.
At its best it pertains to a society made orderly by good
manners rather than law, in which each person produces
according to his powers and receives according to his
needs, and at its worst, the word pertains to a terroristic
resistance of all present government and social order.
State v. Schleifer, 102 Conn. 708, 130 A. 184, 188.
Criminal anarchy as the doctrine that organized govern-
ment should be overthrown by force, or by assassination
of executive officers, or by any unlawful means. See Peo-
ple v. Gitlow, 183 N.Y.S. 846, 847, 111 Misc.Rep. 641, and
15 Rep. Am. Bar Assn. 210.
ANATHEMA. An ecclesiastical punishment by
which a person is separated from the body of the
church, and forbidden all intercourse with the
members of the same.
It differs from excommunication, which simply
forbids the person excommunicated from going
into the church and taking the communion with
the faithful.
ANATHEMATIZE. To pronounce anathema up-
on; to pronounce accursed by ecclesiastical au-
thority; to excommunicate. See Anathema.
ANATOCISM. In the civil law, repeated or dou-
bled interest; compound interest; usury. Cod. 4,
32, 1, 30.
ANCESTOR. One from whom a person lineally
descended or may be descended; a progenitor.
Russell v. Roberts, 54 Ohio App. 441, 7 N.E.2d 811,
814.
A former possessor; the person last seised.
Termes de la Ley; 2 Bl.Comm. 201. A deceased
person from whom another has inherited land.
Bailey v. Bailey, 25 Mich. 185; McCarthy v.
Marsh, 5 N.Y. 275.
For example, a child may be the "ancestor" of his par-
ent, and an infant brother, the "ancestor" of an adult
brother. Embraces collaterals as well as lineals. Purcell
v. Sewell, 223 Ala. 73, 134 So. 476, 480. Correlative of
"heir." In re Long's Estate, 180 Okl. 28, 67 P.2d 41, 43,
110 A.L.R. 1002.
The term differs from "predecessor," in that it is applied
to a natural person and his progenitors, while the latter is
applied also to a corporation and those who have held
offices before those who now fill them. Co. Litt. 78b.
"Ancestor" may embrace both lineals and collaterals, Cor-
nell v. Child, 170 App.Div. 240, 156 N.Y.S. 449, 452, or both
testator and testatrix, Pfaffenberger v. Pfaffenberger, 189
Ind. 507, 127 N.E. 766, 767; it may also be limited to mean
immediate ancestor, In re Simpson's Estate, Sur., 144
N.Y.S. 1099, 1101.
ANCESTRAL. Relating to ancestors, or to what
has been done by them; as homage ancestral
(q. v.). Derived from ancestors.
Ancestral estates are such as are transmitted by descent,
and not by purchase. 4 Kent, Comm. 404. Brown v.
Whaley, 58 Ohio St. 654, 49 N.E. 479, 65 Am.St.Rep. 793.
Or such as are acquired either by descent or by operation
of law. Gray v. Chapman, 122 Okl. 130, 243 P. 522, 525.
Realty which came to the intestate by descent or devise
from a now dead ancestor or by deed of actual gift from
a living one, there being no other consideration than that
of blood. In re Long's Estate, 180 Okl. 28, 67 P.2d 41, 50,
110 A.L.R. 1002. Real estate coming to distributee by
descent, gift, or devise from any kinsman. Ward v. Ives,
91 Conn. 12, 98 A. 337, 339. Allotments to members of
Indian tribes or their heirs have been treated as an ances-
tral estate. Sims v. Brown, 46 Okl. 767, 149 P. 876, 877;
McDougal v. McKay, 237 U.S. 372, 35 S.Ct. 605, 607, 59
L.Ed. 1001.
ANCHOR. A measure containing ten gallons.
The instrument used by which a vessel or other
body is held. See Walsh v. Dock Co., 77 N.Y.
448; Reid v. Ins. Co., 19 Hun, N.Y., 284.
ANCHOR WATCH. A watch, consisting of a
small number of men, (from one to four,) kept
constantly on deck while the vessel is riding at
single anchor, to see that the stoppers, painters,
cables, and buoy-ropes are ready for immediate
use. The Lady Franklin, 2 Lowell, 220, Fed.Cas.
No.7,984. The lookout intrusted to one or two
men when a vessel is at anchor. O'Hara v. Luck-
enbach S. S. Co., 269 U.S. 364, 46 S.Ct. 157, 160,
70 L.Ed. 313.
ANCHORAGE. In English law, a prestation or
toll for every anchor cast from a ship in a port;
and sometimes, though there be no anchor. Hale,
de Jure Mar. pt. 2, c. 6. See 1 W.B1. 413 et seq.;
4 Term. 262.
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ANCILLARY
ANCIENT. Old; that which has existed from an
indefinitely early period, or which by age alone
has acquired certain rights or privileges accorded
in view of long continuance.
ANCIENT DEED. A deed 30 years old and shown
to come from a proper custody and having noth-
ing suspicious about it. Davis v. Wood, 161 Mo.
17, 61 S.W. 695.
ANCIENT DEMESNE. Manors which in the time
of William the Conqueror were in the hands of
the crown, and are so recorded in the Domesday
Book. Fitzh.Nat.Brev. 14, 56; Baker v. Wich, 1
Salk. 56.
Also a species of copyhold, which differs, how-
ever, from common copyholds in certain privi-
leges, but yet must be conveyed by surrender, ac-
cording to the custom of the manor.
There are three sorts : (1) Where the lands are held
freely by the king's grant; (2) customary freeholds, which
are held of a manor in ancient demesne, but not at the
lord's will, although they are conveyed by surrender, or
deed and admittance; (3) lands held by copy of court-roll
at the lord's will, denominated copyholds of base tenure.
Tenure in ancient demesne may be pleaded in abate-
ment to an action of ejectment. Rust v. Roe, 2 Burr. 1046.
ANCIENT DOCUMENTS. See Ancient Writings.
ANCIENT HOUSE. One which has stood long
enough to acquire an easement of support against
the adjoining land or building. 3 Kent, Comm.
• 437; 2 Washb.Real Prop. 74, 76.
In England this term is applied to houses or buildings
erected before the time of legal memory, (Cooke, Incl.
Acts, 35, 109,) that is, before the reign of Richard I.,
although practically any house is an ancient messuage if it
was erected before the time of living memory, and its
origin cannot be proved to be modern.
ANCIENT LIGHTS. Lights or windows in a
house, which have been used in their present
state, without molestation or interruption, for
twenty years, and upwards.
To these the owner of the house has a right by prescrip-
tion or occupancy, so that they cannot be obstructed or
closed by the owner of the adjoining land which they may
overlook. Wright v. Freeman, 5 Har. & J., Md., 477;
Story v. Odin, 12 Mass. 160, 7 Am.Dec. 81.
ANCIENT READINGS. Readings or lectures up-
on the ancient English statutes, formerly regard-
ed as of great authority in law. Litt. § 481; Co.
Litt. 280.
use but at same time creating private easements
in the street, which cannot be taken without com-
pensation. Dwornick v. State, 251 App.Div. 675,
297 N.Y.S. 409, 411.
ANCIENT WALL. A wall built to be used, and
in fact used, as a party-wall, for more than twen-
ty years, by the express permission and continu-
ous acquiescence of the owners of the land on
which it stands. Eno v. Del Vecchio, 4 Duer, N.
Y., 53, 63. Schneider v. 44-84 Realty Corpora-
tion, 169 Misc. 249, 7 N.Y.S.2d 305, 309.
ANCIENT WATER COURSE. A water course is
"ancient" if the channel through which it natural-
ly runs has existed from time immemorial inde-
pendent of the quantity of water which it dis-
charges. Earl v. De Hart, 12 N.J.Eq. 280, 72 Am.
Dec. 395.
ANCIENT WRITINGS. Documents bearing on
their face every evidence of age and authenticity,
of age of 30 years, and coming from a natural and
reasonable official custody. Hartzell v. U. S., C.
C.A.Iowa, 72 F.2d 569, 579.
These are presumed to be genuine without express
proof, when coming from the proper custody. Jones v.
Scranton Coal Co., 274 Pa. 312, 118 A. 219. Bonds more
than 50 years old are admissible as ancient documents,
where they are on their face free from suspicion as to
their authenticity, come from the proper source, and are
accompanied by some corroborating evidence. Smythe v.
Inhabitants of New Providence Tp., Union County, N. J.,
C.C.A.N.J., 263 F. 481. Only the original copy of a deed,
not the record copy, can be considered as an ancient docu-
ment. Laclede Land & Improvement Co. v. Goodno, Mo.
Sup., 181 S.W. 410, 413.
ANCIENTS. In English law, gentlemen of the
inns of court and chancery.
In Gray's Inn the society consists of benchers, ancients,
barristers, and students under the bar; and here the
ancients are of the oldest barristers. In the Middle Tem-
ple, those who had passed their readings used to be termed
"ancients." The Inns of Chancery consist of ancients and
students or clerks; from the ancients a principal or treas-
urer is chosen yearly. Wharton.
The Council of Ancients was the upper Chamber of the
French legislature under the constitution of 1795, consist-
ing of 250, each required to be at least forty years old.
ANCIENTY. Eldership; seniority. Used in the
statute of Ireland, 14 Hen. VIII. Cowell.
ANCILLA. Lat. A handmaid, an auxiliary, a
subordinate. Manley v. Standard Oil Co. of Tex.,
D.C.Tex., 8 F.R.D. 354, 356.
ANCIENT RECORDS. See Ancient Writings.
ANCIENT RENT. The rent reserved at the time
the lease was made, if the building was not then
under lease. Orby v. Lord Mohun, 2 Vern. 542.
ANCIENT SERJEANT. In English law, the eld-
est of the queen's serjeants.
ANCIENT STREET. The doctrine is not based
upon fact that streets have existed for a long
time, but is invoked when it appears that common
grantor owning land comprising street in ques-
tion as well as property in question and other lots
has given deeds to lots bounding them by street,
thereby not only dedicating the street to public
ANCILLARY. Aiding; attendant upon; describ-
ing a proceeding attendant upon or which aids
another proceeding considered as principal. In re
Stoddard, 238 N.Y. 147, 144 N.E. 484, 486. Auxil-
iary or subordinate. Johnson v. Thomas, D.C.
Tex., 16 F.Supp. 1019.
ANCILLARY ADMINISTRATION. Administra-
tion in state where decedent has property and
which is other than where decedent was domiciled.
First Nat. Bank v. Blessing, 231 Mo.App. 288, 98
S.W.2d 149, 151.
ANCILLARY ATTACHMENT. One sued out in
aid of an action already brought, its only office
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being to hold the property attached under it for
the satisfaction of the plaintiff's demand. Tem-
pleton v. Mason, 107 Tenn. 625, 65 S.W. 25.
ANCILLARY BILL OR SUIT. One growing out
of and auxiliary to another action or suit, either
at law or in equity, such as a bill for disco$ery,
or a proceeding for the enforcement of a judg-
ment, or to set aside fraudulent transfers of prop-
erty. Coltrane v. Templeton, Va., 45 C.C.A. 328,
106 F. 370. One growing out of a prior suit in
the same court, dependent upon and instituted for
the purpose either of impeaching or enforcing the
judgment or decree in a prior suit. Hume v. New
York, C.C.A.N.Y., 255 F. 488, 491; Caspers v. Wat-
son, C.C.A.I11., 132 F.2d 614, 615.
ANCILLARY JURISDICTION. "Ancillary juris-
diction" of federal court generally involves either
proceedings which are concerned with pleadings,
processes, records or judgments of court in prin-
cipal case or proceedings which affect property al-
ready in court's custody. Cooperative Transit Co.
v. West Penn Electric Co., C.C.A.W.Va., 132 F.2d
720, 723. The ancillary process must be to aid,
enjoin, or regulate original suit and prevent reliti-
gation in other courts of issues heard and ad-
judged in such suit. O'Brien v. Richtarsic, D.C.
N.Y., 2 F.R.D. 42, 44.
ANCILLARY PROCEEDING. One subordinate to
or in aid of another primary action. Schram v.
Roney, D.C.Mich., 30 F.Supp. 458, 46L
ANCILLARY RECEIVER. One appointed in aid
of, and in subordination to, a foreign receiver for
purpose of collecting and taking charge of assets,
as of insolvent corporation, in the jurisdiction
where he is appointed. In re Stoddard, 242 N.Y.
148, 151 N.E. 159, 164, 45 A.L.R. 622.
ANCIPITIS USUS. Lat. In international law,
of doubtful use; the use of which is doubtful;
that may be used for a civil or peaceful, as well as
military or warlike, purpose. Gro. de Jure B. lib.
3, c. 1, § 5, subd. 3; 1 Kent, Comm. 140.
AND. A conjunction connecting words or phrases
expressing the idea that the latter is to be added
to or taken along with the first. Grand Trunk
Western Ry. Co. v. Thrift Co., 68 Ind.App. 198, 116
N.E. 756, 759. Added to, together with, joined
with, Business Men's Building & Loan Ass'n
v. Tumulty, 13 N.J.Misc. 638, 180 A. 772. As
well as. Porter v. Moores, 4 Heisk., Tenn., 16.
Including. Finch v. Hunter, 148 Ark. 482, 230 S.
W. 553, 554. "And also," Carter v. Keesling, 130
Va. 655, 108 S.E. 708, 713. Sometimes construed
as "or." Land & Lake Ass'n v. Conklin, 182 App.
Div. 546, 170 N.Y.S. 427, 428.
It expresses a general relation or connection, a participa-
tion or accompaniment in sequence, having no inherent
meaning standing alone but deriving force from what
comes before and after. In its conjunctive sense the word
is used to conjoin words, clauses, or sentences, expressing
the relation of addition or connection, and signifying that
something is to follow in addition to that which proceeds
and its use implies that the connected elements must be
grammatically co-ordinate, as where the elements preced-
ing and succeeding the use of the words refer to the same
subject matter. While it is said that there Is no exact
synonym of the word in English, it has been defined to
mean "along with", "also", "and also", "as well as", "be-
sides", "together with". Oliver v. Oliver, 286 Ky. 6, 149
S.W.2d 540, 542.
When expression "and/or" is used, that word may be
taken as will best effect the purpose of the parties as
gathered from the contract taken as a whole, or, in other
words, as will best accord with the equity of the situation.
Bobrow v. U. S. Casualty Co., 231 App.Div. 91, 246 N.Y.S.
363, 367.
The symbol "&c" indicates things of like character, with
the things enumerated just before it. Fleck v. Harmstad,
304 Pa. 302, 155 A. 875, 878, 77 A.L.R. 874. It has been rec-
ognized as "sanctioned by age and good use." Brown v.
State, 16 Tex.App. 245. And was constantly used by Lord
Coke without a suggestion from any quarter that it is not
English; Berry v. Osborn, 28 N.H. 279.
ANDROCHIA. In old English law, a dairy-wo-
man. Fleta, lib. 2, c. 87.
ANDROGYNUS. A hermaphrodite.
ANDROLEPSY. The taking by one nation of the
citizens or subjects of another, in order to compel
the latter to do justice to the former. Wolffius, §
1164; Moll. de Jure Mar. 26.
ANDROMANIA. Nymphomania. 44 C.J.S. In-
sane Persons § 2, p. 19.
ANDROPHONOMANIA. Homicidal insanity.
ANECIUS. L. Lat. Spelled also cesnecius, eni-
tius, ceneas, eneyus, Fr. aisne. The eldest-born;
the first-born; senior, as contrasted with the
puis-nó (younger). Spelman.
ANEURISM, or ANEURYSM. A sac formed by
the dilatation of the weakened walls of an artery,
usually resulting in a soft pulsating tumor. 3
Words and Phrases, Perm. Ed.
ANEW. To try a case or issue "anew" or "de no-
vo" implies that the case or issue has been heard
before. Gaiser v. Steele, 25 Idaho, 412, 137 P.
889, 890.
ANGARIA. A term used in the Roman law to de-
note a forced or compulsory service exacted by
the government for public purposes; as a forced
rendition of labor or goods for the public service;
in particular, the right of a public officer to re-
quire the service of vehicles or ships. See Dig.
50, 4, 18, 4.
In feudal law, any troublesome or vexatious
personal service paid by the tenant or villein to
his lord. Spelman.
In maritime law, a forced service (onus) im-
posed on a vessel for public purposes; an im-
pressment of a vessel. Locc. de Jure Mar. lib. 1,
c. 5, §§ 1-6. See Angary, Right Of.
ANGARY, RIGHT OF. In international law,
formerly the right ( jus angarice) claimed by a bel-
ligerent to seize merchant vessels in the harbors
of the belligerent and to compel them, on pay-
ment of freight, to transport troops and supplies
to a designated port. 2 Opp. 446.
At the present day, the right of a belligerent to
appropriate, either for use, or for destruction in
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AMMO
case of necessity, neutral property temporarily
located in his own territory or in that of the oth-
er belligerent. The property may be of any de-
scription whatever, provided the appropriation of
it be for military or naval purposes.
ANGEL. An ancient English coin, of the value of
ten shillings sterling. Jacob.
ANGER. A strong passion of the mind excited
by real or supposed injuries; not synonymous
with "heat of passion," "malice," or "rage or re-
sentment," because these are all terms of wider
import and may include anger as an element or as
an incipient stage. Hoffman v. State, 97 Wis. 571,
73 N.W. 51.
ANGILD. In Saxon law, the single value of a
man or other thing; a single weregild (q. v.);
the compensation of a thing according to its
single value or estimation. Spelman. The double
gild or compensation was called "twigild," the
triple, "trigild," etc. Id. See Angylde.
When a crime was committed, before the Con-
quest, the angild was the money compensation
that the person who had been wronged was en-
titled to receive. Maitl. Domesday Book & Be-
yond 274.
ANGINA PECTORIS. Violent paroxysm of pain
arising frequently from some disease of the coro-
nary arteries, and is manifestation of disease
rather than recognized disease in itself. Foster v.
Borough of State College, 124 Pa.Super. 492, 189
A. 786, 789.
ANGLESCHERIA. In old English law, English-
ery; the fact of being an Englishman.
ANGLIZE JURA IN OMNI CASU LIBERTATIS
DANT FAVOREM. The laws of England in every
case of liberty are favorable, (favor liberty in all
cases.) Fortes. c. 42.
ANGLICE. In English, a term formerly used in
pleading when a thing is described both in Latin
and English, inserted immediately after the Latin
and as an introduction of the English translation.
ANGLING. Derived from noun "angle," meaning
a fishhook; tackle for catching fish, consisting of
a line, hook, and bait, with or without a rod.
Catching fish by rod, line and hook, or by line and
hook. State v. Mears, 213 Ind. 257, 12 N.E.2d 343,
344.
ANGLO—INDIAN. An Englishman domiciled in
the Indian territory of the British crown.
ANGORA GOAT. A more or less degenerate
goat, known as the "Cape Angora," produced by
breeding the original Angora with the Cape Colo-
ny goat, whose hair is shown to be dealt in, used,
and known as mohair, is an "Angora goat" within
the meaning of that expression in Schedule K,
par. 305, Tariff Act of 1913. U. S. v. Beadenkopf
Co., 8 Ct.Cust.App. 283, 284.
ANGUISH. Extreme pain of body or mind; ex-
cruciating distress. Carson v. Thompson, Mo.
App., 161 S.W.2d 995, 1000. Agony, but, as used in
law, particularly mental suffering or distress of
great intensity. Cook v. Railway Co., 19 Mo.App.
334. It is not synonymous with inconvenience, an-
noyance, or harassment. Western Union Tele-
graph Co. v. Stewart, Ala.App. 502, 79 So. 200,
201.
ANGYLDE. In Saxon law, the rate fixed by law
at which certain injuries to person or property
were to be paid for; in injuries to the person, it
seems to be equivalent to the "were," i. e., the
price at which every man was valued. It seems
also to have been the fixed price at which cattle
and other goods were received as currency, and
to have been much higher than the market price,
or ceapgild. Wharton. See Angild.
AN'HLOTE. In old English law, a single tribute
or tax, paid according to the custom of the coun-
try as scot and lot.
ANIENS, or ANIENT. Null, void, of no force or
effect. Fitzh.Nat.Brev. 214. See Anniented.
ANIMAL. Any animate being which is endowed
with the power of voluntary motion. An animate
being, not human. Bernardine v. City of New
York, 182 Misc. 609, 44 N.Y.S.2d 881, 883.
Domestic animals are tame as distinguished from wild;
living in or near the habitations of man or by habit or
special training in association with man. Thurston v.
Carter, 112 Me. 361, 92 A. 295, L.R.A.1915C, 359.
Domitce are those which have been tamed by man; do-
mestic.
Fera3 naturce are those which still retain their wild na-
ture.
Mansuetce naturce are those gentle or tame by nature,
such as sheep and cows.
ANIMALS OF A BASE NATURE. Animals in
which a right of property may be acquired by re-
claiming them from wildness, but which, at com-
mon law, by reason of their base nature, are not
regarded as possible subjects of a larceny. 3 Inst.
109; 1 Hale, P.C. 511, 512.
Some animals which are now usually tamed come within
this class, as dogs and cats; and others which, though
wild by nature and often reclaimed by art and industry,
clearly fall within the same rule, as bears, foxes, apes,
monkeys, ferrets, and the like; 1 Hawk.Pl.Cr. 33, § 36; 4
Bla.Com. 236; 2 East, Pl.Cr. 614. See 1 Wms.Saund. 84,
note 2.
ANIMALIA FERA, SI FACTA SINT MANSUETA
ET EX CONSUETUDINE EUNT ET REDEUNT,
VOLANT ET REVOLANT, UT CERVI, CYGNI,
ETC., EO USQUE NOSTRA SUNT, ET ITA IN-
TELLIGUNTUR QUAMDIU HABUERUNT ANI-
MUM REVERTENDI. Wild animals, if they be
made tame, and are accustomed to go out and re-
turn, fly away and fly back, as stags, swans, etc.,
are considered to belong to us so long as they have
the intention of returning to us. 7 Coke, 16.
ANIMO. Lat. With intention, disposition, design,
will. Quo animo, with what intention. Animo
cancellandi, with intention to cancel. 1 Pow.Dev.
603. Furandi, with intention to steal. 4 Bl.Comm.
230; 1 Kent, Comm. 183. Lucrandi, with intention
to gain or profit. 3 Kent, Comm. 357. Manendi,
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ANIMO
with intention to remain. 1 Kent, Comm. 76.
Morandi, with intention to stay, or delay. Republi-
candi, with intention to republish. 1 Pow.Dev.
609. Revertendi, with intention to return. 2 Bl.
Comm. 392. Revocandi, with intention to revoke.
1 Pow.Dev. 595. Testandi, with intention to make
a will. See Animus and the titles which follow
it.
ANIMO ET CORPORE. By the mind, and by the
body; by the intention and by the physical act.
Dig. 50, 17, 153; Id. 41, 2, 3, 1; Fleta, lib. 5, c. 5,
§§ 9, 10
ANIMO FELONICO. With felonious intent. Hob.
134.
ANIMUS. Lat. Mind; intention; disposition;
design; will. Animo (q. v.), with the intention or
design. These terms are derived from the civil
law.
ANIMUS AD SE OMNE JUS DUCIT. It is to the
intention that all law applies. Law always re-.
gards the intention.
ANIMUS CANCELLANDI. The intention of de-
stroying or canceling, (applied to wills).
ANIMUS CAPIENDI. The intention to take or
capture. 4 C.Rob.Adm. 126, 155.
ANIMUS DEDICANDI. The intention of donating
or dedicating.
ANIMUS DEFAMANDI. The intention of defam-
ing. The phrase expresses the malicious intent
which is essential in every case of verbal injury to
render it the subject of an action for libel or
slander.
ANIMUS DERELINQUENDI. The intention of
abandoning. 4 C.Rob.Adm. 216. Rhodes v. White-
head, 27 Tex. 304, 84 Am.Dec. 631.
ANIMUS DIFFERENDI. The intention of obtain-
ing delay.
ANIMUS DONANDI. The intention of giving. Ex-
pressive of the intent to give which is necessary
to constitute a gift.
ANIMUS ET FACTUM. To constitute a change
of domicile, there must be an "animus et factum";
the "factum" being a transfer of the bodily pres-
ence, and the "animus" the intention of residing
permanently or for indefinite period. Hayward
v. Hayward, 65 Ind.App. 440, 115 N.E. 966, 970.
See Animus Manendi.
ANIMUS ET FACTUS. Intention and act; will
and deed. Used to denote those acts which be-
come effective only when accompanied by a par-
ticular intention.
ANIMUS FURANDI. Intent to steal, or to feloni-
ously deprive the owner permanently of his prop-
erty. Jones v. Commonwealth, 172 Va. 615, 1 S.E.
2d 300, 301.
ANIMUS HOMINIS EST ANIMA SCRIPT!. The
intention of the party is the soul of the instrument.
9 Bulst. 67; Pitm. Prin. & Sur. 26. In order to
give life or effect to an instrument, it is essential
to look to the intention of the individual who exe-
cuted it.
ANIMUS LUCRANIiI. The intention to make a
gain or profit.
ANIMUS MANENDI. The intention of remaining;
intention to establish a permanent residence. 1
Kent, Comm. 76. This is the point to be settled
in determining the domicile or residence of a
party. Id. 77. See Animus et Factum.
ANIMUS MORANDI. The intention to remain,
or to delay.
ANIMUS POSSIDENDI. The intention of pos-
sessing.
ANIMUS QUO. The intent with which.
ANIMUS RECIPIENDI. The intention of receiv-
ing.
ANIMUS RECUPERANDI. The intention of re-
covering. Locc. de Jure Mar. lib. 2, c. 4, § 10.
ANIMUS REPUBLICANDI. The intention to re-
publish.
ANIMUS RESTITUENDI. The intention of re-
storing. Fleta, lib. 3, c. 2, § 3.
ANIMUS REVERTENDI. The intention of re-
turning.
A man retains his domicile if he leaves it animo reverten-
di. In re Miller's Estate, 3 Rawle (Pa.) 312. 24 Am.Dec.
345; 4 B1. Comm. 225; 2 Russ. Crimes, 18; Poph. 42, 52;
4 Coke, 40. Also, a term employed in the civil law, in ex-
pressing the rule of ownership in tamed animals.
ANIMUS REVOCANDI. The intention to revoke.
ANIMUS SIGNANDI. Intention to sign instru-
ment as and for a will. Hamlet v. Hamlet, 183 Va.
453, 32 S.E.2d 729, 732.
ANIMUS TESTANDI. Intention or serious pur-
pose to make will. In re Kemp's Will, Del., 7 W.
W.Harr. 514, 186 A. 890, 894.
ANKER. A measure containing ten gallons.
ANN. In Scotch law, half a year's stipend, over
and above what is owing for the incumbency, due
to a minister's relict, or child, or next of kin, after
his decease. Whishaw.
ANNA. In East Indian coinage, a piece of money,
the sixteenth part of a rupee.
ANNALES. Lat. Annuals; a title formerly given
to the Year Books.
In old records. Yearlings; cattle of the first
year. Cowell.
ANNALS. Masses said in the Romish church for
the space of a year or for any other time, either
for the soul of a person deceased, or for the bene-
fit of a person living, or for both. Aylif. Parerg.
ANNALY. In Scotch law, to alienate; to convey.
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ANNOYANCE
ANNATES. In ecclesiastical law, first-fruits paid
out of spiritual benefices to the Pope, so called be-
cause the value of one year's profit was taken as
their rate.
ANNEX. Derived from the Latin "annectere,"
meaning to tie or bind to. To attach, and often,
specifically, to subjoin. In re Annexation to City
of Easton of Tract of Land in Williams Tp.,
Northampton County, 139 Pa.Super. 146, 11 A.2d
662, 664. To add to; to unite. The word ex-
presses the idea of joining a smaller or subordi-
nate thing with another, larger, or of higher im-
portance. Waterbury Lumber & Coal Co. v. Aster-
chinsky, 87 Conn. 316, 87 A. 739, 740, Ann.Cas.
1916B, 613. To consolidate, as school districts.
Evans v. Hurlburt, 117 Or. 274, 243 P. 553, 554. To
make an integral part of something larger.
It implies physical connection or physically joined to,
yet physical connection may be dispensed with, and things
may be annexed without being in actual contact, when
reasonably practicable. Elliott Common School Dist. No.
48 v. County Board of School Trustees, Tex.Civ.App., 76
S.W.2d 786, 789.
In the law relating to fixtures, the expression "annexed
to the freehold" means fastened to or connected with it;
mere juxtaposition, or the laying of an object, however
heavy, on the freehold, does not amount to annexation.
Merritt v. Judd, 14 Cal. 64.
ANNEXATION. The act of attaching, adding,
joining, or uniting one thing to another; general-
ly spoken of the connection of a smaller or sub-
ordinate thing with a larger or principal thing.
The attaching an illustrative or auxiliary document to
a deposition, pleading, deed, etc., is called "annexing" it.
So the incorporation of newly-acquired territory into the
national domain, as an integral part thereof, is called "an-
nexation," as in the case of the addition of Texas to the
United States.
In the law relating to fixtures: Actual annexation in-
cludes every movement by which a chattel can be joined
or united to the freehold. Constructive annexation is the
union of such things as have been holden parcel of the
realty, but which are not actually annexed, fixed, or
fastened to the freehold. Shep.Touch. 469; Amos & F.
Fixt. 2.
Scotch Law
The union of lands to the crown, and declaring
them inalienable. Also the appropriation of the
church-lands by the crown, and the union of lands
lying at a distance from the parish church to
which they belong, to the church of another parish
to which they are contiguous.
ANNI ET TEMPORA. Lat. Years and terms.
An old title of the Year Books.
ANNI NUBILES. A woman's marriageable years.
The age at which a girl becomes by law fit for
marriage; the age of twelve.
ANNICULUS. A child a year old. Calvinus, Lex.
ANNICULUS TRECENTESIMO SEXAGESIMO-
QUINTO DIE DICITUR, INCIPIENTE PLANE
NON EXACTO DIE, QUIA ANNUM CIVILITER
NON AD MOMENTA TEMPORUM SED AD DIES
NUMERAMUR. We call a child a year old on
the three hundred and sixty-fifth day, when the
day is fairly begun but not ended, because we
calculate the civil year not by moments; but by
days. Dig. 50, 16, 134; Id. 132; Calvin.
ANNIENTED. Made null, abrogated, frustrated,
or brought to nothing. Litt. c. 3, § 74L Cf.
Aniens.
ANNIVERSARY. An annual day, in old ecclesi-
astical law, set apart in memory of a deceased
person. Also called "year day" or "mind day."
Spelman.
As applied to an insurance policy, "anniver-
sary" means yearly recurring date of the policy,
Mid-Continent Life Ins. Co. v. Skye, 113 Okl. 184,
240 P. 630, 632, or perhaps the date of the delivery
thereof, Jefferson Standard Life Ins. Co. v. Baker,
Tex.Civ.App., 260 S.W. 223, 225.
ANNO DOMINI. In the year of the Lord. Com-
monly abbreviated A. D. The computation of
time, according to the Christian era, dates from
the birth of Christ.
ANNONA. Barley; corn; grain; food; a yearly
contribution of food, of various kinds, for sup-
port.
Annona porcum, acorns; annona frumentum hordeo ad-
mixtum, corn and barley mixed; annona panis, bread
without reference to the amount. Du Cange; Spelman,
Gloss. ; Cowell.
The term is used in the old English law, and also in the
civil law quite generally, to denote anything contributed
by one person towards the support of another.
ANNONIE CIVILES. A species of yearly rents
issuing out of certain lands, and payable to certain
monasteries.
ANNOTATIO. In the civil law, the sign-manual
of the emperor; a rescript of the emperor, signed
with his own hand. It is distinguished both from
a rescript and pragmatic sanction, in Cod. 4, 59, 1.
ANNOTATION. A remark, note, or commentary
on some passage of a book, intended to illustrate
its meaning. Webster.
In the civil law, an imperial rescript (see Re-
script) signed by the emperor. The answers of
the prince to questions put to him by private per-
sons respecting some doubtful point of law. Also
summoning an absentee. Dig. 1, 5. And the desig-
nation of a place of deportation. Dig. 32, 1, 3.
ANNOUNCED. A decision is "announced," pre-
venting nonsuit, when court's conclusion on issue
tried is made known from bench or by any publi-
cation, oral or written, even if judgment has not
been rendered. Ex parte Alabama Marble Co.,
216 Ala. 272, 113 So. 240, 242.
ANNOYANCE. Discomfort; vexation. Not syn-
onymous with anguish, inconvenience, or harass-
ment. Western Union Telegraph Co. v. Stewart,
16 Ala.App. 502, 79 So. 200, 201. "Annoyance and
inconvenience" relate as much to physical as to
mental conditions. Chicago, I. & L. Ry. Co. v.
Ader, 184 Ind. 235, 110 N.E. 67, 69. It includes
feeling of imposition and oppression Alabama
Water Service Co. v. Wakefield, 231 Ala. 112, 163
So. 626.
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ANNUA
ANNUA. NEC DEBITUM JUDEX NON SEPARAT
IPSUM. A judge (or court) does not divide an-
nuities nor debt. 8 Coke, 52; 1 Salk. 36, 65. Debt
and annuity cannot be divided or apportioned by a
court.
ANNUA PENSIONE. An ancient writ to provide
the king's chaplain, if he had no preferment, with
a pension. Reg.Orig. 165, 307.
ANNUAL. Of or pertaining to year; returning
every year; coming or happening yearly. Payne
v. Gypsy Oil Co., 129 Okl. 18, 263 P. 138, 140. Oc-
curring or recurring once in each year; continu-
ing for the period of a year; accruing within
the space of a year; relating to or covering the
events or affairs of a year. State v. McCullough,
3 Nev. 224. Once a year, without signifying what
time in year. Rolerson v. Standard Life Ins. Co.,
Tex.Civ.App., 244 S.W. 845, 846.
ANNUAL AMOUNT. The annual amount of con-
tribution at the rate at which deceased was con-
tributing to support of partial dependents, at the
time of his injury, regardless of whether that rate
had existed for a year or more or for less than a
year. Spreckles Sugar Co. v. Industrial Acc. Com-
mission, 186 Cal. 256, 199 P. 8.
ANNUAL ASSAY. An annual trial of the gold
and silver coins of the United States, to ascertain
whether the standard fineness and weight of the
coinage is maintained. See Rev.St.U.S. § 3547 (31
U.S.C.A. § 363).
ANNUAL AVERAGE EARNINGS. Include both
the earnings from a seasonal occupation and also
the actual earnings for the remainder of the year
from whatever occupation they may have been
received, provided the nonseasonal income is limi-
ted to employments of the same class and is meas-
ured by the wages of the injured employee, or
those similarly employed, as the facts may re-
quire, whenever the feature of nonseasonal em-
ployment is involved Dicaro v. Fitzgibbon, 249
App.Div. 38, 291 N.Y.S, 764, 767.
ANNUAL DEPRECIATION. The annual loss, not
restored by current maintenance, which is due to
all the factors causing the ultimate retirement of
the property. These factors embrace wear and
tear, decay, inadequacy, and obsolescence. The
annual loss in service value not restored by cur-
rent maintenance and incurred in connection with
the consumption or prospective retirement of prop-
erty in the course of service from causes known
to be in current operation, and whose effect can
be forecast with a reasonable approach to ac-
curacy. State v. Hampton Water Works Co., 91
N.H. 278, 18 A.2d 765, 770.
ANNUAL PENSION. In Scotch law, a yearly
profit or rent.
ANNUAL RENT. In Scotch law, yearly interest
on a loan of money.
ANNUAL SALARY. Does not refer to salary by
calendar years, but by the years of incumbent's
term, according to time of year when term com-
mences, and salary must be calculated for year as
a whole. State ex rel. Harvey v. Linville, 318 Mo.
698, 300 S.W. 1066, 1067.
ANNUAL VALUE. The net yearly income de-
rivable from a given piece of property; its fair
rental value for one year, deducting costs and
expenses; the value of its use for a year.
ANNUALLY. In annual order or succession;
yearly, every year, year by year. Upham v. Shat-
tuck, 151 Kan. 966, 101 P.2d 901, 903. At end of
each and every year during a period of time. Pat-
terson v. McNeeley, 16 Ohio St. 348. Imposed
once a year, computed by the year. People ex rel.
Mutual Trust Co. v. Westchester County v. Miller,
177 N.Y. 51, 69 N.E. 124, 125.
ANNUITANT. The recipient of an annuity; one
who is entitled to an annuity.
ANNUITIES OF TIENDS. In Scotch law, annui-
ties of tithes; 10s. out of the boll of tiend wheat,
8s. out of the boll of beer, less out of the boll of
rye, oats, and peas, allowed to the crown yearly
of the tiends not paid to the bishops, or set apart
for other pious uses.
ANNUITY. A yearly payment of money for life
or years. State ex rel. Chamberlain v. Johnstone,
65 N.D. 727, 262 N.W. 193. Or in fee, and charge-
able only on the person of the grantor. Co.Litt.
144b. A fixed sum, granted or bequeathed, pay-
able periodically but not necessarily annually.
Wilkin v. Board of Com'rs of Oklahoma County,
77 Okl. 88, 186 P. 474, 475; Fate v. Fate, 295 Ill.
App. 271, 14 N.E.2d 890, 892. A legacy payable by
installments. In re Beach's Estate, 203 N.Y.S.
492, 494, 122 Misc.Rep. 261. Also, the right to
receive such periodical amount. Daniel v. Life
Ins. Co. of Virginia, Tex.Civ.App., 102 S.W.2d
256, 259.
It is distinguished from an "income," in that the latter
is interest or profits to be earned. Grand Rapids Trust
Co. v. Herbst, 220 Mich. 321, 190 N.W. 250, 252. Too, it is
chargeable on the person merely, and so far personalty;
while a rent-charge is something reserved out of realty,
or fixed as a burden upon an estate in land. 2 B1.Comm.
40; Rolle, Abr. 226; Horton v. Cook, 10 Watts (Pa.) 127,
36 Am. Dec. 151.
The contract of annuity Is that by which one party
delivers to another a sum of money, and agrees not to re-
claim it so long as the receiver pays the rent agreed upon.
This annuity may be either perpetual or for life. See
Succession of Vidalat, 155 La. 1005, 99 So. 801, 802.
The name of an action, now disused, (L. Lat.
breve de annuo redditu,) which lay for the re-
covery of an annuity. Reg.Orig. 158b; Bract.
fol. 203b; 1 Tidd, Pr. 3.
ANNUITY POLICY. An insurance policy provid-
ing for monthly payments to insured to begin at
fixed date and continue through insured's life.
Hamilton v. Penn Mut. Life Ins. Co., 196 Miss. 345,
17 So.2d 278, 280.
ANNUITY-TAX. An impost levied annually in
Scotland for the maintenance of the ministers of
religion.
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ANSWER
ANNUL. To reduce to nothing; annihilate; ob-
literate; to make void or of no effect; to nullify;
to abolish; to do away with. Ex parte Mitchell,
123 W.Va. 283, 14 S.E.2d 771, 774. To cancel;
destroy; abrogate. To annul a judgment or
judicial proceeding is to deprive it of all force
and operation, either ab initio or prospectively as
to future transactions. In re Morrow's Estate,
204 Pa. 484, 54 A. 342.
It is not a technical word and there is nothing
which prevents the idea from being expressed in
equivalent words; Woodson v. Skinner, 22 Mo.
24.
ANNULMENT. Act of annulling; act of making
void retrospectively as well as prospectively.
Deihl v. Jones, 170 Tenn. 217, 94 S.W.2d 47, 48.
Action for divorce is distinguished from one for annul-
ment, in that "divorce action" is predicated on valid mar-
riage and decree terminates relationship from date thereof,
while "annulment" destroys existence of void or voidable
marriage and everything appertaining thereto from the
beginning. Wigder v. Wigder, 14 N.J.Misc. 880, 188 A.
235, 236.
ANNULUS. Lat. In old English law, a ring;
the ring of a door. Per haspam vel annulum
hostii exterioris; by the hasp or ring of the outer
door. Fleta, lib. 3, c. 15, § 5.
ANNULUS ET BACULUS. (Lat. ring and staff.)
The investiture of a bishop was per annulum et
baculum, by the prince's delivering to the prelate
a ring and pastoral staff, or crozier. 1 Bl.Comm.
378; Spelman.
ANNUM, DIEM, ET VASTUM. See Year, Day,
and Waste.
ANNUS. Lat. In civil and old English law, a
year; the period of three hundred and sixty-five
days. Dig. 40, 7, 4, 5; Calvin.; Bract. fol. 359b.
ANNUS DELIBERANDI. In Scotch law, a year
of deliberating; a year to deliberate. The year
allowed by law to the heir to deliberate whether
he will enter and represent his ancestor. It com-
mences on the death of the ancestor, unless in the
case of a posthumous heir, when the year runs
from his birth. Bell.
ANNUS, DIES, ET VASTUM. In old English law,
year, day, and waste. See Year, Day, and Waste.
ANNUS EST MORA MOTUS QUO SUUM PLAN-
ETA PERVOLVAT CIRCULUM. A year is the
duration of the motion by which a planet revolves
through its orbit. Dig. 40, 7, 4, 5; Calvin.; Bract.
359b.
ANNUS ET DIES. A year and a day.
ANNUS INCEPTUS PRO COMPLETO HABE-
TUR. A year begun is held as completed. Tray.
Lat.Max. 45.
ANNUS LUCTUS. The year of mourning. It
was a rule among the Romans, and also the Danes
and Saxons, that widows should not marry infra
annum luctfis, (within the year of mourning.)
Cod. 5, 9, 2; 1 Bl.Comm. 457,
ANNUS UTILIS. A year made up of available or
serviceable days. Brissonius; Calvin. In the
plural, anni utiles signifies the years during which
a right can be exercised or a prescription grow.
In prescription, the period of incapacity of a mi-
nor, etc., was not counted; it was no part of the
anni utiles.
ANNUUS REDITUS. A yearly rent; annuity. 2
Bl.Comm. 41; Reg.Orig. 158b.
ANOMALOUS. Deviating from common rule; ir-
regular; exceptional; abnormal. Palmer v. Palm-
er, Woolf & Gray, 183 La. 458, 164 So. 245, 247.
Unusual; not conforming to rule, method, or
type.
ANOMALOUS INDORSER. A stranger to a.note,
who indorses it after its execution and delivery
but before maturity, and before it has been in-
dorsed by the payee. Buck v. Hutchins, 45 Minn.
270, 47 N.W. 808.
ANOMALOUS PLEA. One which is partly affirma-
tive and partly negative. Baldwin v. Elizabeth,
42 N.J.Eq. 11, 6 A. 275; Potts v. Potts, N.J.Ch., 42
A. 1055.
ANON., AN., A. Abbreviations for anonymous.
ANONYMOUS. Nameless; wanting a name or
names. A publication, withholding the name of
the author, is said to be anonymous. An anony-
mous letter is one that has no name signed. Belk
v. State, 102 Tex.Cr.R. 561, 278 S.W. 842.
Cases are sometimes reported anonymously, i. e., without
giving the names of the parties. Abbreviated to "Anon."
An anonymous society in the Mexican code is one which
has no firm name and is designated by the particular des-
ignation of the object of the undertaking.
ANOTHER. Additional. Harelson v. South San
Joaquin Irr. Dist., 20 Cal.App. 324, 128 P. 1010,
1011. Distinct or different. Hammell v. State,
198 Ind. 45, 152 N.E. 161, 163; Ex parte Lyman,
D.C.Wash., 202 F. 303, 304.
ANOTHER ACTION PENDING. See Auter Ac-
tion Pendant.
ANOYSANCE. Annoyance; nuisance. Cowell;
Kelham.
ANSEL, ANSUL, or AUNCEL. In old English
law, an ancient mode of weighing by hanging
scales or hooks at either end of a beam or staff,
which, being lifted with one's finger or hand by
the middle, showed the equality or difference be-
tween the weight at one end and the thing weighed
at the other. Termes de la Ley, 66.
ANSWER. As a verb, the word denotes an as-
sumption of liability, as to "answer" for the debt
or default of another.
Pleading
Strictly speaking, it is a pleading by which de-
fendant in suit at law endeavors to resist the
plaintiff's demand by an allegation of facts, either
denying allegations of plaintiff's complaint or
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ANSWER
confessing them and alleging new matter in avoid-
ance, which defendant alleges should prevent re-
covery on facts alleged by plaintiff. In re Herle's
Will, 173 Misc. 879, 19 N.Y.S.2d 263, 265.
In chancery pleading, the term denotes a de-
fense in writing, made by a defendant to the alle-
gations contained in a bill or information filed by
the plaintiff against him.
In pleading, under the Codes of Civil Procedure, the an-
swer is the formal written statement made by a defendant
setting forth the grounds of his defense; corresponding to
what, in actions under the common-law practice is called
the "plea." But as used in a statute providing that de-
fendant must appear and answer the petition, "answer"
refers to any sort of pleading filed by defendant. State ex
rel. Oliver Hast Auction Co. v. Grimm, 197 Mo.App. 566,
196 S.W. 1019, 1021. Cross-complaint. Celina Mut. Casu-
alty Co. v. Baldridge, 213 Ind. 193, 12 N.E.2d 258, 260.
Counterclaim. Long v. Mutual Trust Life Ins. Co., 191
Minn. 163, 253 N.W. 762. Motion to quash service of sum-
mons. Phillips v. Manufacturers Trust Co., C.C. A.Idaho,
101 F.2d 723, 727. Objections by contestants to petition for
probate of will. In re Swim's Will, 258 N.Y.S. 458, 144
Misc. 206. Objections to executor's final report. Meier
v. Union Trust Co. of Indianapolis, 93 Ind.App. 457, 176 N.
E. 42, 51. Demurrer. Evans v. Superior Court in and for
Los Angeles County, 14 Cal.App.2d 743, 59 P.2d 159, 160,
contra. Mariner v. Milisich, 45 Nev. 193, 200 P. 478.
In Massachusetts, the term denotes the statement of the
matter intended to be relied upon by the defendant in
avoidance of the plaintiff's action, taking the place of spe-
cial pleas in bar, and the general issue, except in real and
mixed actions. Pub.St.Mass.1882, p. 1287.
In matrimonial suits in the (English) probate, divorce,
and admiralty division, an answer is the pleading by which
the respondent puts forward his defense to the petition.
Browne, Div. 223.
Under the old admiralty practice in England, the defend-
ant's first pleading was called his "answer." Williams &
B. Adm. Jur. 246.
Frivolous answer. See Sham Answer, infra.
An irrelevant answer is one that has no substantial rela-
tion to the controversy;—distinguishable from a sham an-
swer. Rosatti v. Common School Dist. No. 96 of Cass
County, 53 N.D. 268, 205 N.W. 678, 679.
A sham answer is one sufficient on its face but so clearly
false that it presents no real issue to be tried. Bank of
Richards, Mo., v. Sheasgreen, 153 Minn. 363, 190 N.W. 484.
One good in form, but false in fact and not pleaded in
good faith. Burkhalter v. Townsend, 139 S.C. 324, 138 S.E.
34, 36. A frivolous answer, on the other hand, is one
which on its face sets up no defense, although it may be
true in fact.
A voluntary answer, in chancery, was an answer put in
by a defendant, when plaintiff had filed no interrogatories
which required to be answered. Hunt, Eq.
Practice
A reply to interrogatories; an affidavit in an-
swer to interrogatories. The declaration of a fact
by a witness after a question has been put, ask-
ing for it.
ANTAPOCHA. In the Roman law, a transcript or
counterpart of the instrument called "apocha" (q.
v.), signed by the debtor and delivered to the
creditor. Calvin.
ANTE. Lat. Before. Usually employed in old
pleadings as expressive of time, as prce (before)
was of place, and coram (before) of person.
Townsh.Pl. 22.
ANTE EXHIBITIONEM BILIJE. Before the ex-
hibition of the bill. Before suit begun.
ANTE-FACT1UM, or ANTE-GESTUM. Done be-
fore. A Roman law term for a previous act, or
thing done before.
ANTE JURAMENTUM. See Antejuramentum.
ANTE LITEM MOTAM. At time when declarant
had no motive to distort truth, In re Hayden's
Estate, 176 Misc. 1078, 29 N.Y.S.2d 852, 856. Be-
fore suit brought, before controversy instituted.
Also, before the controversy arose. Corbett v.
Hawes, 187 N.C. 653, 122 S.E. 478, 479.
ANTE MORTEM INTEREST. Interests existing
only prior to, and not after, transferor's death.
Cairins v. Martin, 130 N.J.Eq. 313, 22 A.2d 415,
419.
ANTE NATUS. Born before. A person born be-
fore another person or before a particular event.
The term is particularly applied to one born In a country
before a revolution, change of government or dynasty, cr
other political event, such that the question of his rights,
status, or allegiance will depend upon the date of his birth
with reference to such event. In England, the term Con,-
monly denotes one born before the act of un i on with
Scotland; in America, one born before the declaration of
independence. Its opposite is post natus, one born after
the event.
ANTEA. Lat. Formerly; heretofore.
ANTECEDENT. Prior in point of time. Turner
v. State, 84 Tex.Cr.R. 267, 206 S.W. 689.
ANTECEDENT CREDITORS. Those whose debts
are created before the debtor makes a transfer
not lodged for record. Stone v. Keith, 218 Ky.
11, 290 S.W. 1042, 1043.
ANTECESSOR. An ancestor (q. v.).
ANTEDATE. To affix an earlier date; to date an
instrument as of a time before the time it was
written.
ANTEJURAMENTUM. In Saxon law, a prelimi-
nary or preparatory oath (called also "prcejura-
mentum," and "juramentum calumnice," (q. v.),
which both the accuser and accused were required
to make before any trial or purgation; the ac-
cuser swearing that he would prosecute the crim-
inal, and the accused making oath on the very day
that he was to undergo the ordeal that he was in-
nocent of the crime with which he was charged.
Whishaw.
ANTENATI. See Ante Natus.
ANTENNA. In wireless telegraphy, the wire in
the air on the tall mast is called the "antenna."
National Electric Signaling Co. v. Telefunken
Wireless Telegraph Co. of United States, C.C.A.
N.Y., 221. F. 629, 631. A wire, or a combination of
wires, supported in the air for directly transmit-
ting electric waves into space, or receiving them
therefrom. Webster, Diet.
Occurring in a report or a text-book, it is used
to refer the reader to a previous part of the book.
ANTENUPTIAL. Made or done before a mar-
riage.
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ANTICIPATION
ANTENUPTIAL CONTRACT. A contract made
before marriage. Agreement in contemplation of
marriage, Hewett v. Gott, 294 P. 897, 901, 132
Kan. 168, called a marriage contract.
ANTENUPTIAL SETTLEMENTS. Contracts or
agreements between a man and woman before
marriage, but in contemplation and generally in
consideration of marriage, whereby the property
rights and interests of either the prospective
husband or wife, or both of them, are determined,
or where property is secured to either or both of
them, or to their children. In re Carnevale's
Will, 248 App.Div. 62, 289 N.Y.S. 185, 188.
ANTHRACITE COAL. "Anthracite coal" differs
from bituminous coal in the amount of fixed
carbon, the amount of volatile matter, color,
luster, and structural character. The percentage
of fixed carbon in anthracite coal is much higher
and the percentage of volatile matter is much
lower than in bituminous coal. Anthracite coal
is hard, compact and is comparatively clean and
free from dust and is commonly termed "hard
coal," and burns with practically no smoke. Com-
monwealth v. Hudson Coal Co., 287 Pa. 64, 134 A.
413, 414.
ANTHRACNOSE. A disease of watermelons
caused by parasitic fungus capable of puncturing
and invading tissues of rind and sometimes of
pulp within fruit. S. L. Shepard & Co. v. Agwi-
lines, Inc., C.C.A.S.C., 130 F.2d 67, 69.
ANTHRACOSIS. A type of pneumoconiosis due
to inhalation of coal dust. Allen v. Shell Petrol-
eum Corporation, 146 Kan. 67, 68 P.2d 651, 657.
ANTHRAX. Also called splenic fever, carbuncu-
lar fever, malignant pustule, charbon, and wool-
sorters' disease. An acute, infectious disease of
animals, especially cattle, swine, and sheep, and
transmissible to human beings. Century Dict.;
Bacon v. United States Mut. Acc. Ass'n, 123 N.Y.
304, 25 N.E. 399, 400, 9 L.R.A. 617.
ANTHROPOMETRY. In criminal law and medi-
cal jurisprudence. The measurement of the hu-
man body; a system of measuring the dimensions
of the human body, both absolutely and in their
proportion to each other, the facial, cranial, and
other angles, the shape and size of the skull, etc.,
for purposes of comparison with corresponding
measurements of other individuals, and serving
for the identification of the subject in cases of
doubtful or disputed identity. It was largely
adopted after its introduction in France in 1883,
but fell into disfavor as being costly and as liable
to error. It has given place to the "finger print"
system devised by Francis Galton. See Bertillon
System.
ANTI MANIFESTO. A term used in international
law to denote a proclamation or manifesto pub-
lished by one of two belligerent powers, alleging
reasons why the war is defensive on its part.
ANTI-TRUST ACTS. Federal and state statutes
to protect trade and commerce from unlawful re-
straints and monopolies. U. S. v. Knight Co., 15
S.Ct. 249, 156 U.S. 1, 39 L.Ed. 325; U. S. v. New
York Great Atlantic & Pacific Tea Co., C.C.A.Tex.,
137 F.2d 459. See, also, Restraint of Trade.
Clayton Act. Oct. 15, 1914 as amended, 15 U.S.C.A. §§ 12-
27, 44 ; 18 U. S. C. A. § 412 ; 28 U. S. C. A. §§ 381-383, 386-390 ;
29 U.S.C.A. § 52.
Sherman Anti-Trust Act, July 2, 1890, as amended, 15 U.
S.C.A. §§ 1-7, 15 note.
ANTICHRESIS. In the civil law. A species of
mortgage, or pledge of immovables. An agree-
ment by which the debtor gives to the creditor the
income from the property which he has pledged,
in lieu of the interest on his debt. Guyot, Repert;
Marquise De Portes v. Hurlbut. 44 N.J.Eq. 517, 14
A. 891. It is analogous to the Welsh mortgage of
the common law. In the French law, if the in-
come was more than the interest, the debtor was
entitled to demand an account of the income, and
might claim any excess.
A debtor may give as security for his debt any
immovable which belongs to him, the creditor hav-
ing the right to enjoy the use of it on account of
the interest due, or of the capital if there is no
interest due; this is called "antichresis." Civ.
Code Mex. art. 1927.
By the law of Louisiana, there are two kinds of
pledges,—the pawn and the antichresis. A pawn
relates to movables, and the antichresis to im-
movables. The antichresis must be reduced to
writing; and the creditor thereby acquires the
right to the fruits, etc., of the immovables, de-
ducting yearly their proceeds from the interest,
in the first place, and afterwards from the prin-
cipal of his debt. He is bound to pay taxes on the
property, and keep it in repair, unless the con-
trary is agreed. The creditor does not become the
proprietor of the property by failure to pay at the
agreed time, and any clause to that effect is void.
He can only sue the debtor, and obtain sentence
for sale of the property. The possession of the
property is, however, by the contract, transferred
to the creditor. La.Civil Code, Arts. 3176-3181;
Livingston v. Story, 11 Pet. 351, 9 L.Ed. 746.
The "antichresis" is an antiquated contract, and
has been resorted to in Louisiana in but a few
instances. Harang v. Ragan, 134 La. 201, 63 So.
875, 877. Essential element of contract, Conklin
v. Caffall, 179 So. 434, 437, 438, 439, 189 La. 301.
ANTICIPATION. Act of doing or taking a thing
before its proper time, Wilmington Trust Co. v.
Wilmington Trust Co., 25 Del.Ch. 193, 15 A.2d 665,
668, 669. To do, take up, or deal with, before an-
other; to preclude or prevent by prior action; to
be before in doing, State ex rel. Todd v. Thomas,
127 Neb. 891, 257 N.W. 265, 96 A.L.R. 1470.
In conveyancing, the act of assigning, charging,
or otherwise dealing with income before it be-
comes due.
In patent law, a person is said to have been
anticipated when he patents a contrivance already
known within the limits of the country granting
the patent. Topliff v. Topliff, 12 S.Ct. 825, 145 U.
S. 156, 36 L.Ed. 658.
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ANTICIPATION
An unsuccessful attempt to achieve a particular purpose
is not "anticipation".  Swan Carburetor Co. v. Nash
Motors Co., D.C.Md., 25 F.Supp. 24, 34. The test being
whether patentee has added anything of value to the sum
of human knowledge, whether he has made the world's
work easier, cheaper, and safer, so that return to prior
art would be a retrogression. Butler v. Burch Plow Co.,
C.C.A.Cal., 23 F.2d 15, 24. But invention is not "antici-
pated" by accidental, incidental or unintentional use of
some of its features, unless the benefits or ensuing results
from such use are appreciated or recognized. Balaban v.
Polyfoto Corporation, D.C.Del., 47 F.Supp. 472, 477, 478.
In law of negligence, "anticipation" is not con-
fined to expectation. Kenney v. Wong Len, 81
N.H. 427, 128 A. 343, 344. But compare Hardy v.
Missouri Pac. R. Co., C.C.A.Ark., 266 F. 860, 863, 36
A.L.R. 1. It means probability not possibility as
applied to duty to anticipate consequences of
conduct attacked as negligent. Empire Dist. Elec-
trict Co. v. Harris, C.C.A.Mo., 82 F.2d 48, 52.
ANTICIPATORY BREACH OF CONTRACT. See
Breach of Contract.
ANTIGRAPHUS. In Roman law. An officer
whose duty it was to take care of tax money. A
comptroller.
ANTIGRAPHY. A copy or counterpart of a deed.
ANTINOMIA. In Roman law. A real or ap-
parent contradiction or inconsistency in the laws.
Merl. Rêpert. Conflicting laws or provisions of
law; inconsistent or conflicting decisions or cases.
ANTINOMY. A term used in logic and law to
denote a real or apparent inconsistency or con-
flict between two authorities or propositions;
same as antinomia (q. v.).
ANTIQUA CUSTUMA. In English law. Ancient
custom. An export duty on wool, woelfells, and
leather, imposed during the reign of Edw. I. It
was so called by way of distinction from an in-
creased duty on the same articles, payable by for-
eign merchants, which was imposed at a later
period of the same reign and was called "custuma
nova." 1 Bl.Comm. 314.
ANTIQUA STATUTA. Also called "Vetera Stat-
uta." English statutes from the time of Richard
I. to Edward III. 1 Reeve, Eng.Law, 227. See
Nova Statuta.
ANTIQUARE. In Roman law. To restore a for-
mer law or practice; to reject or vote against a
new law; to prefer the old law. Those who
voted against a proposed law wrote on their bal-
lots the letter "A," the initial of antiquo, I am
for the old law. Calvin.
ANTIQUUM DOMINICUM. In old English law.
Ancient demesne.
ANTITHETARIUS. In old English law. A man
who endeavors to discharge himself of the crime
of which he is accused, by retorting the charge on
the accuser. He differs from an approver in this:
that the latter does not charge the accuser, but
others. Jacob.
ANTRUSTIO. In early feudal law. A confidential
vassal. A term applied to the followers or de-
pendents of the ancient German chiefs, and of the
kings and counts of the Franks. Burrill.
ANUELS LIVRES. L. Fr. The Year Books. Kel-
ham.
ANY. Some; one out of many; an indefinite
number. State v. Pierson, 204 Iowa 837, 216 N.
W. 43, 44. One indiscriminately of whatever kind
or quantity. Federal Deposit Ins. Corporation v.
Winton, C.C.A.Tenn., 131 F.2d 780, 782. One or
some (indefinitely). Slegel v. Siegel, 135 N.J.Eq.
5, 37 A.2d 57, 58. "Any" does not necessarily mean
only one person, but may have reference to more
than one or to many. Doherty v. King, Tex.Civ.
App., 183 S.W.2d 1004, 1007. As a synonym for
"some". Kayser v. Occidental Life Ins. Co. of
California, 234 Iowa 310, 12 N.W.2d 582, 587.
It is often synonymous with "either", State v.
Antonio, 3 Brev. (S.C.) 562; Carr-Lowry Lumber
Co. v. Martin, 144 Miss. 106, 109 So. 849, 850.
And is given the full force of "every" or "all",
Glen Alden Coal Co. v. City of Scranton, 282 Pa-
45, 127 A. 307, 308; Southern Ry. Co. v. Gaston
County, 200 N.C. 780, 158 S.E. 481. Its generality
may be restricted by the context, Drainage Dist.
No. 1 of Bates County v. Bates County, Mo.Sup.,
216 S.W. 949, 953. Thus, the giving of a right to
do some act "at any time" is commonly construed
as meaning within a reasonable time. Paulson
v. Weeks, 80 Or. 468, 157 P. 590, 592, Ann.Cas.
1918D, 741. And the words "any other" following
the enumeration of particular classes are to be
read as "other such like," and include only others
of like kind or character. Southern Ry. Co. v.
Columbia Compress Co., C.C.A.S.C., 280 F. 344,
348.
ANYTHING. Sometimes used colloquially in the
sense of whatever. Pittsburgh Plate Glass Co. v.
H. Neuer Glass Co., C.C.A.Ohio, 253 F. 161, 164.
AORTA. The large artery of the body, about one
and a half inches in diameter, through which
blood is carried away from heart to be ultimately
distributed to various parts of body. It is com-
posed of three layers, an inner coat called the
"intima," a middle coat called the "media," and
an outer coat called the "adventia." Woelfle
Connecticut Mut. Life Ins. Co. of Hartford, Conn.,
234 Mo.App. 135, 112 S.W.2d 865, 870.
APANAGE. In old French law. A provision of
lands or feudal superiorities assigned by the
kings of France for the maintenance of their
younger sons. An allowance assigned to a prince
of the reigning house for his proper maintenance
out of the public treasury. 1 Hallam, Mid. Ages,
pp. ii, 88; Wharton.
APARTMENT. A part of a house occupied by a
person, while the rest is occupied by another, or
others. As to the meaning of this term, see Peo-
ple v. St. Clair, 38 Cal. 137.
APARTMENT HOTEL. Generally understood to
apply to those houses which contain nonhouse-
keeping apartments without a kitchen or cooking
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APICES
facilities, wherein the proprietor furnishes a res-
taurant for feeding the occupants of the different
apartments. Waitt Const. Co. v. Chase, 188 N.Y.
S. 589, 591, 197 App.Div. 327. A covenant pro-
hibiting erection of an "apartment house" does
not prohibit an apartment hotel containing one,
two, and three room suites without kitchens or
kitchenettes. Griswold Realty & Holding Corpo-
ration v. West End Avenue & Seventy-Fifth St.
Corporation, 209 N.Y.S. 764, 766, 125 Misc. 30.
APARTMENT HOUSE. A building arranged in
several suites of connecting rooms, each suite
designed for independent housekeeping, but with
certain mechanical conveniences, such as heat,
light, or elevator services, in common to all
families occupying the building. Konick v. Champ-
neys, 108 Wash. 35, 183 P. 75, 77, 6 A.L.R. 459.
Sometimes called a flat or flat house. Lignot v.
Jaekle, 72 N.J.Eq. 233, 65 A. 221. It comes within
the prohibition of a restrictive building covenant
forbidding buildings designed for any purpose
other than a private dwelling house. Taylor v.
Lambert, 279 Pa. 514, 124 A. 169, 170. But it is not
a "hotel." Satterthwait v. Gibbs, 288 Pa. 428, 135
A. 862, 864. A house for two families has been
held to be an "apartment house" within a restric-
tive covenant. Austin v. Richardson, Tex.Com.
App., 288 S.W. 180, 181.
An "apartment house" is not a hotel, but is a building
used as a dwelling for several families, each living separate
and apart. Peirce v. Kelner, 304 Pa. 509, 156 A. 61, 62. It
is not a number of private dwellings, built one on another,
but a collection of dwellings. A place for housing a num-
ber of people grouped in families assigned to different sec-
tions in the same structure. Fox v. Sumerson, 338 Pa. 545,
13 A.2d 1, 2.
APARTMENT HOUSE HI—JACKER. One who
takes possession of an insolvent or abandoned
apartment house business, collects as much rent
as possible in advance and pays no bills of any
kind, thus seriously affecting, if not destroying,
the good will of the business Thompson v. Du-
bois, 215 Cal. 577, 11 P.2d 862, 863.
APATISATIO. An agreement or compact. Du
Cange.
APERTA BREVIA. Open, unsealed writs.
APERTUM FACTUM. An overt act.
APERTURA' TESTAMENTI. In the civil law. A
form of proving a will, by the witnesses acknowl-
edging before a magistrate their having sealed
it.
APEX. The summit or highest point of anything;
the top; e. g., in mining law, "apex of a vein."
See Larkin v. Upton, 12 S.Ct. 614, 144 U.S. 19, 36
L.Ed. 330. An "apex" is all that portion of a
terminal edge of a mineral vein from which the
vein has extension downward in the direction of
the dip. Stewart Mining Co. v. Ontario Mining Co.,
35 S.Ct. 610, 614, 237 U.S. 350, 59 L.Ed. 989. Or
it is the juncture of two dipping limbs of a fissure
vein. Jim Butler Tonopah Mining Co. v. West
End Consol. Mining Co., 38 S.Ct. 574, 576, 247 U.
S. 450, 62 L.Ed. 1207.
The apex of ore vein or lode is ascent along line of its
dip or outcropping, beyond which it extends no further to
surface of land. Brugger v. Lee Yim, 12 Ca1.App.2d 38, 55
P.2d 564, 571.
APEX JURIS. The summit of the law; a legal
subtlety; a nice or cunning point of law; close
technicality; a rule of law carried to an extreme
point, either of severity or refinement A term
used to denote a stricter application of the rules
of law than is indicated by the phrase summum
jus (q. v.).
APEX RULE. In mining law. The mineral laws
of the United States give to the locator of a min-
ing claim on the public domain the whole of every
vein the apex of which lies within his surface
exterior boundaries, or within perpendicular
planes drawn downward indefinitely on the planes
of those boundaries; and he may follow a vein
which thus apexes within his boundaries, on its
dip, although it may so far depart from the per-
pendicular in its course downward as to extend
outside the vertical side-lines of his location,. but
he may not go beyond his end-lines or vertical
planes drawn downward therefrom. This is called
the apex rule. Rev.St.U.S. § 2322 (30 U.S.C.A. §
26) ; Stewart Mining Co v. Ontario Mining Co.,
23 Idaho, 724, 132 P. 787, 792.
APHASIA. In medical jurisprudence. Loss of the
faculty or power of articulate speech; a condition
in which the patient, while retaining intelligence
and understanding and with the organs of speech
unimpaired, is unable (in "motor aphasia") to
utter articulate words, or unable to vocalize the
particular word which is in his mind and which
he wishes to use, or utters words different from
those he believes himself to be speaking, or (in
"sensory aphasia" or apraxia) is unable to under-
stand spoken or written language. Sensory
aphasia includes word blindness and word deaf-
ness, visual and auditory aphasia. Motor aphasia
often includes agraphia, or the inability to write
words of the desired meaning. The seat of the
disease is in the brain, but it is not a form of
insanity.
APHONIA. In medical jurisprudence. Loss of the
power of articulate speech in consequence of mor-
bid conditions of some of the vocal organs. It
may be incomplete, in which case the patient can
whisper. It is to be distinguished from congenital
dumbness, and from temporary loss of voice
through extreme hoarseness or minor affections
of the vocal cords, as also from aphasia, the lat-
ter being a disease of the brain without impair-
ment of the organs of speech.
APICES JURIS NON SUNT JURA [JUS]. Ex-
tremities, or mere subtleties of law are not rules
of law [are not law]. Co.Litt. 304b; 10 Coke,
126; Wing.Max. 19, max. 14; Broom, Max. 188.
Legal principles must not be carried to their ex-
treme consequences, regardless of equity and good
sense. Salmond, Jurispr. 639. See Apex Juris.
APICES LITIGANDI. Extremely fine points, or
subtleties of litigation. Nearly equivalent to the
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modern phrase "sharp practice." "It is uncon-
scionable in a defendant to take advantage of the
apices litigandi, to turn a plaintiff around and
make him pay costs when his demand is just."
Per Lord Mansfield, in 3 Burr. 1243.
APNEA. In medical jurisprudence. Want of
breath; difficulty in breathing; partial or tempo-
rary suspension of respiration; specifically, such
difficulty of respiration resulting from over-oxy-
genation of the blood, and in this distinguished
from "asphyxia" (q. v.), which is a condition re-
sulting from a deficiency of oxygen in the blood
due to suffocation or any serious interference with
normal respiration. The two terms were formerly
(but improperly) used synonymously.
APOCHA (also Apoca). Lat. In the civil law.
A writing acknowledging payments; acquittance.
It differs from acceptilation in this: that ac-
ceptilation imports a complete discharge of the
former obligation whether payment be made or
not; apocha, discharge only upon payment being
made. Calvin. See Antapocha.
APOCHIE ONERATORLE. In old commercial
law. Bills of lading.
APOCRISARIUS. In civil law. A messenger;
an ambassador.
In ecclesiastical law. One who answers for
another. An officer whose duty was to carry to
the emperor messages relating to ecclesiastical
matters, and to take back his answer to the peti-
tioners. An officer who gave advice on questions
of ecclesiastical law. An ambassador or legate of
a pope or bishop. Spelman.
A messenger sent to transact ecclesiastical business and
report to his superior ; an officer who had charge of the
treasury of a monastic edifice ; an officer who took charge
of opening and closing the doors. Du Cange ; Spelman ;
Calvinus, Lex.
APOCRISARIUS CANCELLARIUS. In the civil
law. An officer who took charge of the royal seal
and signed royal dispatches.
Called, also, secretarius, consiliarius (from his
giving advice) ; referendarius; a consiliis (from
his acting as counsellor) ; a responsis, or respon-
salis.
APOGEAN TIDES. When moon is farthest from
earth, its tide-producing power is diminished and
tides at such time exhibit a decreased rise and
fall, and such tides are called "apogean tides."
Miller v. Bay-To-Gulf, 141 Fla. 452, 193 So. 425,
428.
APOGRAPHIA. In civil law. An examination
and enumeration of things possessed; an inven-
tory. Calvinus, Lex.
APOPLEXY. In medical jurisprudence. The fail-
ure of consciousness and suspension of voluntary
motion from suspension of the functions of the
cerebrum.
The group of symptoms arising from rupture
of a minute artery and consequent hemorrhage in-
to the substance of the brain or from the lodg-
ment of a minute clot in one of the cerebral
arteries.
The symptoms consist usually of sudden loss of con-
sciousness, muscular relaxation, lividity of the face and
slow stertorous respiration, lasting from a few hours to
several days. Death frequently ensues. If consciousness
returns, there is found paralysis of some of the voluntary
muscles, very frequently of the muscles of the face, arm,
and leg upon one side, giving the symptom of hemiplegia.
There is usually more or less mental impairment, which
presents no uniform character, but varies indefinitely.
By apoplexy is meant a break or rupture of a blood
vessel in the brain, not produced by any external cause.
Robinson v. ./Etna Life Ins. Co., Tex.Com.App., 276 S.W.
900, 902.
APOSTACY (also spelled Apostasy). In English
law. The total renunciation of Christianity, by em-
bracing either a false religion or no religion at all.
This offense can take place only in such as have
once professed the Christian religion. 4 Bl.Comm.
43; 4 Steph.Comm. 231.
APOSTATA. In civil and old English law. An
apostate; a deserter from the faith; one who
has renounced the Christian faith. Cod. 1, 7;
Reg.Orig. 71b.
APOSTATA CAPIENDO. An obsolete English
writ which issued against an apostate, or one
who had violated the rules of his religious order.
It was addressed to the sheriff, and commanded
him to deliver the defendant into the custody of
the abbot or prior. Reg.Orig. 71, 267; Jacob;
Wharton.
APOSTILLE, Appostille. L. Fr. An addition;
a marginal note or observation. Kelham.
APOSTLES. In English admiralty practice. A
term borrowed from the civil law, denoting brief
dismissory letters granted to a party who appeals
from an inferior to a superior court, embodying a
statement of the case and a declaration that the
record will be transmitted.
This term is still sometimes applied in the ad-
miralty courts of the United States to the papers
sent up or transmitted on appeals.
APOSTOLI. In civil law. Certificates of the in-
ferior judge from whom a cause is removed, di-
rected to the superior. Dig. 49, 6. See Apostles.
Those sent as messengers. Spelman, Gloss.
APOSTOLUS. A messenger; an ambassador,
legate, or nuncio. Spelman.
APOTHECA. In the civil law. A repository; a
place of deposit, as of wine, oil, books, etc. Cal-
vin.
APOTHECARY. Any person who keeps a shop
or building where medicines are compounded or
prepared according to prescriptions of physicians,
or where medicines are sold. Com. v. Fuller, 2
Walk. (Pa.) 550.
In England and Ireland an apothecary is a mem-
ber of an inferior branch of the medical profes-
sion and is licensed by the Apothecaries Company
to practice medicine as well as to sell drugs.
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APPARENT
The term "druggist" properly means one whose occupa-
tion is to buy and sell drugs without compounding or pre-
paring them. The term therefore has a much more limited
and restricted meaning than the word "apothecary," and
there is little difficulty in concluding that the term "drug-
gist" may be applied in a technical sense to persons who
buy and sell drugs. State v. Donaldson, 41 Minn. 74, 42 N.
W. 781.
APP. CT. Appellate Court.
APPARATOR. A furnisher or provider. For-
merly the sheriff, in England, had charge of cer-
tain county affairs and disbursements, in which
capacity he was called "apparator comitatus"
(apparator for the county), and received therefor
a considerable emolument. Cowell.
APPARATUS. An outfit of tools, utensils, or in-
struments adapted to accomplishment of any
branch of work or for performance of experiment
or operation. McClintock & Irvine Co. v. 'Etna
Explosives Co., 260 Pa. 191, 103 A. 622, 623, Ann.
Cas.1918E, 1078. A group or set of organs con-
cerned in performance of single function. First
State Bank of Perkins v. Pulliam, 112 Okl. 22, 239
P. 595, 596. A generic word of the most compre-
hensive significance which may mean implements
and an equipment of things provided, and adapt-
ed as a means to some end. Bruce v. Sibeck, 25
Cal.App.2d 691, 78 P.2d 741, 743.
As used in statutes granting exemption from
execution, etc., "apparatus" means a complex de-
vice or machine designed for the accomplishment
of a special purpose; a complex instrument or ap-
pliance, mechanical or chemical, for a specific ac-
tion or operation; machinery; mechanism; as a
newspaper printing press, Harris v. Townley, Tex.
Civ.App., 161 S.W. 5; or four pool tables, Harris
v. Todd, Tex.Civ.App., 158 S.W 1189; but not a
threshing outfit, Corner v. Powell, Tex.Civ.App.,
189 S.W. 88, 91; nor a well-drilling rig, consist-
ing of boiler, engine, and other parts of compli-
cated machinery, Thresher v. McEvoy, Tex.Civ.
App., 193 S.W. 159, 160. In re Willis, D.C.Tex., 292
F. 872, 873, it was said that the term "apparatus"
is practically synonymous with "tools."
APPAREL. The term is said to derive from two
sources, "apparel" from the Latin "ad," meaning
to, and "par," meaning equal, to point out the
means by which outwardly one keeps even or in
line with his group or class. In re Steimes' Es-
tate, 270 N.Y.S. 339, 150 Misc. 279 (a will case).
APPARENT. That which is obvious, evident, or
manifest; what appears, or has been made mani-
fest; appearing to the eye or mind. Walker v.
John Smith, T., 199 Ala. 514, 74 So. 451, 453; In
respect to facts involved in an appeal or writ of
error, that which is stated in the record. An er-
ror discovered by close scrutiny of the entire evi-
dence is not "apparent." Stewart v. McAllister,
Tex.Civ.App., 209 S.W. 704, 706.
"Apparent" means "open to view," "capable of
being easily understood," "evident," "seeming,"
rather than "true" or "real," "synonymous with,"
"likely," "probable," or "obvious" and as meaning
primarily, "capable of being seen or easily seen,"
"open to view," "visible to the eye," "within sight
or view," and, secondarily, "clear or manifest to
the understanding," "plain," "evident," "obvious,"
"known," "palpable," "indubitable," while "indubi-
table" has been defined as meaning "certain" or
"unquestionable," which is synonymous with
"sure." Stevenson v. State, Del., 1 Terry 268, 8
A.2d 914, 915 (in statute requiring driver to stop
after automobile accident).
The word "apparent" within rule that use of realty must
be apparent to create easement by implication on severance
of unity of ownership of dominant and servient tenements
does not necessarily mean "visible", but means that ease-
ment's indicia, careful inspection of which by person ordi-
narily conversant with subject would disclose such use,
must be plainly visible. Romanchuk v. Plotkin, 215 Minn.
156, 9 N.W.2d 421, 425.
APPARENT AGENCY, See Agency.
APPARENT AUTHORITY. In the law of agency,
such authority as the principal knowingly permits
the agent to assume, or which he holds the agent
out as possessing; such authority as he appears
to have by reason of the actual authority which
he has; such authority as a reasonably prudent
man, using diligence and discretion, in view of the
principal's conduct, would naturally suppose the
agent to possess. Iowa Loan & Trust Co. v. Sea-
man, 203 Iowa 310, 210 N.W. 937, 940; Kissell v.
Pittsburgh, Ft. W. & C. Ry. Co., 194 Mo.App. 346,
188 S.W. 1118, 1121; Brager v. Levy, 122 Md. 554,
90 A. 102, 104; Atto v. Saunders, 77 N.H. 527, 93
A. 1037, 1039; Campbell Paint & Varnish Co. v.
Ladd Furniture & Carpet Co., Tex.Civ.App., 83
S.W.2d 1095, 1097; Humble Oil & Refining Co. v.
Wood, Tex.Civ.App., 94 S.W.2d 573, 574.
It includes the power to do whatever is usually
done and necessary to be done in order to carry
into effect the principal power conferred. Oliver
v. United States Fidelity & Guaranty Co., 176 N.C.
598, 97 S.E. 490, 491. Such authority as a princi-
pal intentionally or by want of ordinary care
causes or allows third person to believe that agent
possesses. Fireman's Fund Indemnity Co. v.
Longshore Beach and Country Club, Inc., 127
Conn. 493, 18 A.2d 347, 349.
It is not actual authority and may often be authority not
actually possessed by agent, but is such as principal holds
agent out as possessing. Northwestern Mut. Life Ins. Co.
v. Steckel, 216 Iowa 1189, 250 N.W. 476; Herbert v. Lang-
hoff, La.App., 164 So. 262, 266.
"Apparent authority" of an agent must be determined
by what the principal does, rather than by acts of the
agent. Grismore v. Consolidated Products Co., 232 Iowa
328, 5 N.W.2d 646, 651.
It must be traceable to the principal and cannot be es-
tablished solely by acts and conduct of agent, and princi-
pal is only liable for the appearance of authority caused by
him. Storms v. United Grain & Millworkers' Union, 64
Ohio App. 19, 27 N.E.2d 781, 783.
APPARENT DANGER. As used with reference
to the doctrine of self-defense in homicide, means
such overt actual demonstration, by conduct and
acts, of a design to take life or do some great
personal injury, as would make the killing ap-
parently necessary to self-preservation. Modesett
v. Emmons, Tex.Com.App., 292 S.W. 855, 856.
Under a statute providing that it shall not be a defense
to an action for injuries to an employee that the dangers
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APPARENT
inherent or apparent in the employment contributed to
the injury, an "apparent danger" is one the existence of
which the employee has knowl'Aige, actual or constructive.
Standard Steel Car Co. v. Martinecz, 66 Ind.App. 672, 113
N.E. 244, 248.
APPARENT DEFECTS. In a thing sold, are
those which can be discovered by simple inspec-
tion. Code La. art. 2497 (Civil Code, § 2521).
See, also, Woolley v. Ablah, 119 Kan. 380, 240 P.
266, 269.
APPARENT EASEMENT. See Easement.
APPARENT HEIR. In English law. One whose
right of inheritance is indefeasible, provided he
outlive the ancestor. 2 Bl.Comm. 208. See, also,
Heir Apparent. In Scotch law. He is the person
to whom the succession has actually opened. He
is so called until his regular entry on the lands
by service or infeftment on a precept of Clare
constat.
APPARENT NECESSITY. In actions under the
Alabama Homicide Act, "apparent necessity"
which will justify killing in self-defense must be
such as to impress a reasonable man of its pres-
ence and imminence, and must so impress de-
fendant at the time of the fatal shot. Drummond
v. Drummond, 212 Ala. 242, 102 So. 112, 114.
APPARITIO. In old practice. Appearance; an
appearance. Apparitio in judicio, an appearance
in court. Bract. fol. 344. Post apparitionem, after
appearance. Fleta, lib. 6, c. 10, § 25.
APPARITOR. An officer or messenger employed
to serve the process of the spiritual courts in
England and summon offenders. Cowell.
In the civil law. An officer who waited upon a magis-
trate or -superior officer, and executed his commands. Cal-
vin.; Cod. 12, 53-57.
APPARLEMENT. In old English law. Resem-
blance; likelihood; as apparlement of war. St.
2 Rich. II. st. 1, c. 6; Cowell.
APPARURA. In old English law the apparura
were furniture, implements, tackle, or apparel.
Carucarum apparura, plow-tackle. Cowell.
APPEAL. In civil practice. The complaint to a
superior court of an injustice done or error com-
mitted by an inferior one, whose judgment or de-
cision the court above is called upon to correct or
reverse.
The removal of a cause from a court of inferior
to one of superior jurisdiction, for the purpose of
obtaining a review and retrial. Hall v. Kincaid,
64 Ind.App. 103, 115 N.E. 361, 365. Lea County
State Bank v. McCaskey Register Co., 39 N.M.
454, 49 P.2d 577, 579.
In general terms a resort to an upper court or
tribunal. State ex rel. School Dist. No. 8 v. Lens-
man, 108 Mont. 118, 88 P.2d 63, 65. A rehearing
by a superior court on both law and fact, a proc-
ess of civil law origin, and the usual and appro-
priate mode of review for cases originating in a
court of equity. Sohland v. Baker, 15 Del.Ch. 431,
141 A. 277, 283, 58 A.L.R. 693.
The word "appeal" has no absolutely fixed and definite
meaning but may be used to denote the review by a court
of the action of some board or administrative officer. In re
Determination of Relative Rights to Use of Waters of Des-
chutes River, 108 P.2d 276, 281, 282, 165 Or. 435. An "ap-
peal" is a creature of statute, not a constitutional or inher-
ent right. Carilli v. Hersey, 303 Mass. 82, 20 N.E.2d 492,
495. It is merely a continuation of original lawsuit. Bow-
ersock v. Missouri Valley Drainage Dist. of Holt County,
237 Mo.App. 346, 168 S.W.2d 479, 481. Patterson v. Old
Dominion Trust Co., 149 Va. 597, 140 S.E. 810, 813. It has
become a term of general application in law, with meaning
depending on statutory provisions respecting appellate pro-
oedure. Cino v. Driscoll, 130 N.J.L. 535, 34 A.2d 6, 8.
Appeal is sometimes used to denote the nature of appel-
late jurisdiction, as distinguished from original jurisdic-
tion, without any particular regard to the mode by which
a cause is transmitted to a superior jurisdiction. Dorris
Motor Car Co. v. Colburn, 307 Mo. 137, 270 S.W. 339, 346.
"Appeal" has no conclusive meaning, and it is necessary
in each instance to look to the particular act giving an
appeal, to determine powers to be exercised by the appel-
late court. McCauley v. Imperial Woolen Co., 261 Pa. 312,
104 A. 617, 620.
The fundamental difference between an "appeal" and an
action to "review" is that in the case of appeal the tri-
bunal by which the first determination was made is not a
party to the proceeding to review, while, in an action to
review, the tribunal which made the determination is a
party to the proceeding to review. Milwaukee County v.
Industrial Commission, 228 Wis. 94, 279 N.W. 655, 657, 658.
An "appeal" in equity is a trial de novo. Simmons v..
Stern, C.C.A.N.M., 9 F.2d 256, 259.
"Appeal" may also be used to denote the act of invoking
another judicial forum for the trial. Newell v. Kalamazoo
Circuit Judge, 215 Mich. 153, 183 N.W. 907, 908. See Ap-
pealed. As used in statutes authorizing taxpayers or par-
ties to condemnation proceedings to appeal, the term often
has its nontechnical sense meaning to "apply for" or
"ask." Purcell Bank & Trust Co. of Purcell v. Byars, 66
Okl. 70, 167 P. 216, 218.
An "appeal" is a step in a judicial proceeding, and in
legal contemplation there can be no appeal where there has
been no decision by a judicial tribunal. Two things are
essential to an appeal in its proper sense : First, the de-
cision of a judicial tribunal, and, second, a superior court
invested with authority to review the decision of the in-
ferior tribunal. People ex rel. Nelson Bros. Storage &
Furniture Co. v. Fisher, 273 Ill. 228, 25 N.E.2d 785, 787.
"Appeal" differs from trial in that it is a review on orig-
inal record after that has been made in accordance with
well-recognized principles of judicial procedure. Koukly
v. Weber, 277 N.Y.S. 39, 154 Misc. 659.
In criminal practice. A formal accusation
made by one private person against another of
having committed some heinous crime. 4 Bl.
Comm. 312.
Appeal was also the name given to the proceed-
ing in English law where a person, indicted of
treason or felony, and arraigned for the same,
confessed the fact before plea pleaded, and ap-
pealed, or accused others, his accomplices in the
same crime, in order to obtain his pardon. In
this case he was called an "approver" or "prover,"
and the party appealed or accused, the "appellee."
4 BI.Comm. 330. Appeals have been abolished by
statute.
Cross Appeal
Where both parties to a judgment appeal there-
from, the appeal of each is called a "cross-appeal"
as regards that of the other. 3 Steph.Comm. 581.
Legislation
The act by which a member of a legislative
body who questions the correctness of a decision
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APPEARANCE
of the presiding officer, or "chair," procures a
vote of the body upon the decision.
Old French Law
A mode of proceeding in the lords' courts, where
a party was dissatisfied with the judgment of the
peers, which was by accusing them of having giv-
en a false or malicious judgment, and offering to
make good the charge by the duel or combat.
This was called the "appeal of false judgment."
Montesq. Esprit des Lois, liv. 28, c. 27.
Writ of Error Distinguished
The distinction between an appeal and a writ
of error is that an appeal is a process of civil law
origin, and removes a cause entirely, subjecting
the facts, as well as the law, to a review and re-
visal; but a writ of error is of common law ori-
gin, and it removes nothing for re-examination
but the law. Cunningham v. Neagle, 10 S.Ct. 658,
135 U.S. 1, 34 L.Ed. 55; Buessel v. U. S., C.C.A.
Conn., 258 F. 811, 814. The present tendency is
to ignore the distinction between "writ of error"
and "appeal," and, when found in modern stat-
utes, the meaning given "appeal" must be gath-
ered from the language of the statute itself.
Widgins v. Norfolk & W. Ry. Co., 142 Va. 419, 128
S.E. 516, 518.
APPEAL BOND. The bond given on taking an
appeal, by which the appellant and his sureties
are bound to pay damages and costs if he fails to
prosecute the appeal with effect. Omaha Hotel
Co. v. Kountze, 2 S.Ct. 911, 107 U.S. 378, 27 L.Ed.
609. A general purpose of appeal bonds is to
discourage vexatious and frivolous appeals. State
v. Coletti, 102 Kan. 523, 170 P. 995, 997. To pro-
tect those interested in the judgment. Richmond
v. Williamson, 16 Wash.2d 194, 132 P.2d 1031, 1033.
The sole and only purpose of "appeal bond" is to stay
issuance of execution until cause can be passed upon and
disposed of by appellate court. State ex rel. Gnekow v. U.
S. Fidelity & Guaranty Co., Mo.App., 150 S.W.2d 581, 584.
APPEAL IN FORMA PAUPERIS. A privilege
given indigent person to prosecute an appeal, oth-
erwise and independently allowable, without pay-
ment of fees and costs incident to such prosecu-
tion. Millslagle v. Olson, C.C.A.Neb., 130 F.2d
212, 213. See, also, In Forma Pauperis.
APPEALED. In a sense not strictly technical,
this word may be used to signify the exercise by
a party of the right to remove a litigation from
one forum to another; as where he removes a
suit involving the title to real estate from a jus-
tice's court to the common pleas. Lawrence v.
Souther, 8 Metc. (Mass.) 166.
APPEAR. In practice. To be properly before a
court; as a fact or matter of which it can take
notice. To be in evidence; to be proved. "Mak-
ing it appear and proving are the same thing."
Freem. 53. Coming into court by a party to a
suit, whether plaintiff or defendant. Madison v.
State, 31 Ala.App. 602, 20 So.2d 541, 542; Ben-
nett v. Rodgers, 205 Mo.App. 458, 225 S.W. 101.
See Appearance.
Frequently used in judicial proceedings as
meaning "clear to the comprehension" when ap-
plied to matters of opinion or reasoning, and
"satisfactorily or legally known or made known",
when used in reference to facts of evidence.
Blackshear v. Liberty Mut. Ins. Co., 26 S.E.2d 793,
804, 69 Ga.App. 790. Facts "appear" when the
evidence from which facts may be found is in-
troduced, and presumptions disappear when facts
appear. Christiansen v. Hilber, 282 Mich. 403, 276
N.W. 495, 497.
APPEAR OF RECORD. A substitution of trustee
under deed of trust "appears of record" in the
office of the chancery clerk, by being actually
spread at large on the record. King v. Jones, 121
Miss. 319, 83 So. 531.
APPEARANCE. In practice. A coming into
court as party to a suit, whether as plaintiff or
defendant. Stephens v. Ringling, 102 S.C. 333,
86 S.E. 683, 685. The formal proceeding by which a
defendant submits himself to the jurisdiction of
the court. Flint v. Comly, 95 Me. 251, 49 A. 1044.
The voluntary submission to a court's jurisdiction.
Pacilio v. Scarpati, 300 N.Y.S. 473, 478, 165 Misc.
586; Braman v. Braman, 258 N.Y.S. 181, 186, 236
App.Div. 164.
"Appearance" is the act of appearing, coming,
or being in sight, becoming visible or clear to ap-
prehension of the mind, of being known as sub-
ject of observation or comprehension, or as a
thing proved, of being obvious or manifest. Hal-
lack & Howard Lumber Co. v. Bagly, 100 Colo.
402, 68 P.2d 442, 443.
Appearance anciently meant an actual coming into court,
either in person or by attorney. Appearance may be made
by the party in person or by his agent. Everett Ry., Light
& Power Co. v. U. S., D.C.Wash., 236 F. 806, 808. But in
criminal cases the personal appearance of the accused in
court is often necessary.
An appearance may be either general or special; the
former is a simple and unqualified or unrestricted submis-
sion to the jurisdiction of the court, the latter a submis-
sion to the jurisdiction for some specific purpose only, not
for all the purposes of the suit. Louisville & N. R. Co. v.
Industrial Board of Illinois, 282 Ill. 136, 118 N.E. 483, 485.
A special appearance is for the purpose of testing the
sufficiency of service or the jurisdiction of the court; a
general appearance is made where the defendant waives
defects of service and submits to the jurisdiction. State
v. Huller, 23 N.M. 306, 168 P. 528, 534, 1 A.L.R. 170.
An appearance may also be either compulsory or volunta-
ry, the former where it is compelled by process served on
the party, the latter where it is entered by his own will or
consent, without the service of process, though process
may be outstanding. 1 Barb.Ch.Pr. 77. It is said to be
optional when entered by a person who intervenes in the
action to protect his own interests, though not joined as a
party; it occurs in chancery practice, especially in Eng-
land; conditional, when coupled with conditions as to its
becoming or being taken as a general appearance; gratis,
when made by a party to the action, but before the service
of any process or legal notice to appear ; de bene esse,
when made provisionally or to remain good only upon a
future contingency ; or when designed to permit a party to
a proceeding to refuse to submit his person to the jurisdic-
tion of the court unless it is finally determined that he
has forever waived that right. Farmers Trust Co. v.
Alexander, 334 Pa. 434, 6 A.2d 262, 265; subsequent, when
made by a defendant after an appearance has already been
entered for him by the plaintiff ; corporal, when the per-
son is physically present in court.
An answer constitutes an "appearance." Wieser v.
Richter, 247 Mich. 52, 225 N.W. 542, 543. A party who an-
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swers, consents to a continuance, goes to trial, takes an
appeal, or does any other substantial act in a cause, al-
though he has not been served with summons, is deemed
to have entered his "appearance" unless he objects and
preserves his protests to the jurisdiction of his person.
Robinson v. Bossinger, 195 Ark. 445, 112 S.W.2d 637, 640.
Acts of an attorney in prosecuting an action on behalf of
his client constitute an "appearance." Pacilio v. Scarpati,
300 N.Y.S. 473, 165 Misc. 586.
Appearance by Attorney
This term and "appearance by counsel" are dis-
tinctly different, the former being the substitution
of a legal agent for the personal attendance of
the suitor, the latter the attendance of an advo-
cate without whose aid neither the party attend-
ing nor his attorney in his stead could safely pro-
ceed; and an appearance by attorney does not su-
persede the appearance by counsel. Mercer v.
Watson, 1 Watts (Pa.) 351. See In re Ford's
Estate, 163 N.Y.S. 960, 98 Misc. 100.
Appearance Day
The day for appearing; that on which the par-
ties are bound to come into court. Cruger v. Mc-
Cracken (Tex.Civ.App.) 26 S.W. 282. Compare
City of Decatur v. Barteau, 260 Ill. 612, 103 N.E.
601, 602.
Appearance Docket
A docket kept by the clerk of the court, in
which appearances are entered, containing also a
brief abstract of all the proceedings in the cause.
See McAdams v. Windham, 191 Ala. 287, 68 So. 51,
52.
Notice of Appearance
A notice given by defendant to a plaintiff that
he appears in the action in person or by attorney.
APPEARAND HEIR. In Scotch law. An appar-
ent heir. See Heir Apparent.
APPELLANT. The party who takes an appeal
from one court or jurisdiction to another. Used
broadly or nontechnically, the term includes one
who sues out a writ of error. Widgins v. Norfolk
& W. Ry. Co., 142 Va. 419, 128 S.E. 516, 518.
APPELLATE. Pertaining to or having cogni-
zance of appeals and other proceedings for the
judicial review of adjudications.
Word "appellate" has a general meaning, and it has
a specific meaning indicating the distinction between orig-
inal jurisdiction and appellate jurisdiction. Woodruff v.
Bell, 143 Kan. 110, 53 P.2d 498, 499.
APPELLATE COURT. A court having jurisdic-
tion of appeal and review; a court to which caus-
es are removable by appeal, certiorari, or error;
a reviewing court, and, except in special cases
where original jurisdiction is conferred, not a
"trial court" or court of first instance. Sanborn
v. Pacific Mut. Life Ins. Co., 42 Cal.App.2d 99, 108
P.2d 458, 461; Jackson v. Chesapeake & 0. Ry.
Co., 179 Va. 642, 20 S.E.2d 489, 493.
APPELLATE JURISDICTION. The power and
authority to take cognizance of a cause and pro-
ceed to its determination, not in its initial stages,
but only after it has been finally decided by an
inferior court, i. e., the power of review and de-
termination on appeal, writ of error, certiorari,
or other similar process. Jurisdiction on appeal;
jurisdiction to revise or correct the proceedings in
a cause already instituted and acted upon by an
inferior court, or by a tribunal having the attri-
butes of a court. Illinois Cent. R. Co. v. Dodd,
105 Miss. 23, 61 So. 743, 49 L.R.A.,N.S., 565. The
term includes proceedings in error. Miami Coun-
ty v. City of Dayton, 92 Ohio St. 179, 110 N.E. 726,
727.
If court's jurisdiction is appellate, it has no authority to
determine a question in an action originally instituted in
it. Rogers v. Leahy, 296 Ky. 44, 176 S.W.2d 93, 95, 149 A.
L.R. 1267.
Exercise of "appellate jurisdiction" involves power not
only to correct errors in judgment under review, but to
make such disposition of causes as justice may require in
order that a correct principle of decision, arising since
judgment appealed from, and having a bearing upon the
right disposition of the cause, may be passed on by trial
court, whose judgment will be vacated and cause remanded
for further proceeding to that end in proper cases. Yates
v. St. Johns Beach Development Co., 122 Fla. 141, 165 So.
384, 385.
APPELLATIO. Lat. An appeal.
APPELLATOR. An old law term having the
same meaning as "appellant" (q. v.).
In the civil law, the term was applied to the
judge ad quem, or to whom an appeal was taken.
Calvin.
APPELLEE. The party in a cause against whom
an appeal is taken; that is, the party who has
an interest adverse to setting aside or reversing
the judgment. Slayton v. Horsey, 97 Tex. 341, 78
S.W. 919. Sometimes also called the "respond-
ent.
In a nontechnical sense, "appellee" may include a de-
fendant in writ of error. Widgins v. Norfolk & W. Ry.
Co., 142 Va. 419, 128 S.E. 516, 518.
In old English law. Where a person charged with trea-
son or felony pleaded guilty and turned approver or
"king's evidence," and accused another as his accomplice
in the same crime, in order to obtain his own pardon, the
one so accused was called the "appellee." 4 Bl.Comm. 330.
APPELLO. Lat. In the civil law. I appeal.
The form of making an appeal apud acta. Dig.
49, 1, 2.
APPELLOR. In old English law. A criminal
who accuses his accomplices, or who challenges a
jury. See Approver.
APPEND. To add or attach. American Cannel
Coal Co. v. Indiana Cotton Mills, 78 Ind.App.
115, 134 N.E. 891, 893.
APPENDAGE. Something added as an accessory
to or the subordinate part of another thing.
American Cannel Coal Co. v. Indiana Cotton Mills,
78 Ind.App. 115, 134 N.E. 891, 893.
An "appendage" for a schoolhouse includes a well on
the school premises. Schofield v. School Dist. No. 113,
Labette County, 105 Kan. 343, 184 P. 480, 481, 7 A.L.R. 788.
But "appendages" of a railroad do not include Liberty
bonds pledged to indemnify a surety on its appeal bond, or
cash which was not indispensable to enjoyment of the
property nor to its operation. Jackman v. St. Louis & H.
R. Co., 304 Mo. 319, 263 S.W. 230, 231.
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APPLICATION
APPENDANT; A thing annexed to or belonging
to another thing and passing with it; a thing of
inheritance belonging to another inheritance
Which is more worthy; as an advowson, common,
etc., which may be appendant to a manor, com-
mon of fishing to a freehold, a seat in a church
to a house, etc. It differs from appurtenance, in
that appendant must ever be by prescription, i. e.,
a personal usage for a considerable time, while an
appurtenance may be created at this day; for
if a grant be made to a man and his heirs, of
common in such a moor for his beasts levant or
couchant upon his manor, the commons are ap-
purtenant to the manor, and the grant will pass
them. Meek v. Breckenridge, 29 Ohio St. 648.
See Appurtenance.
APPENDITIA. The appendages or appurte-
nances of an estate or house, dwelling, etc.; thus,
pent-houses are the appenditia domes. Cowell.
APPENDIX. A printed volume, used on an ap-
peal to the English house of lords or privy coun-
cil, containing the documents and other evidence
presented in the inferior court and referred to in
the cases made by the parties for the appeal.
Answering in some respects to the "paper-book"
or "case" in American practice.
APPENSURA. Payment of money by weight in-
stead of by count. Cowell.
APPERTAIN. To belong to; to have relation
to; to be appurtenant to. Chattel mortgages,
Ferguson v. Steen, Tex.Civ.App., 293 S.W. 318,
320; landlord and tenant, State v. Bodden, 166
Wis. 219, 164 N.W. 1009, 1011. To be used in con-
nection with (sales contract), McVeety v. Hayes,
111 Wash. 457, 191 P. 401, 402. See, also, Appur-
tenance; Appurtenant.
APPERTAINING. Connected with in use or oc-
cupancy. It does not necessarily import contigui-
ty, as does "adjoining," and is therefore not synon-
ymous with it: Miller v. Mann, 55 Vt. 475, 479.
Peculiar to (sale of goods), Herndon v. Moore, 18
S.C. 339.
APPLE CIDER VINEGAR. Vinegar made from
evaporated apples by treating them with a certain
percentage of water squeezed out again as apple
juice. People v. Douglas Packing Co., 236 N.Y. 1,
139 N.E. 759, 760.
APPLIANCE. Refers to machinery and all in-
struments used in operating it, and is to be dis-
tinguished from word "materials," which includes
everything of which anything is made. Things
applied to or used as a means to an end. Rob-
erts v. City of Los Angeles, 61 P.2d 323, 330, 7
Cal.2d 477. An "appliance" is a mechanical
thing, a device or apparatus. One Black Mule v.
State, 204 Ala. 440, 85 So. 749.
The term has been applied to a railroad track, Hines
v. Kelley, Tex.Civ.App., 226 S.W. 493, 496; motor tracks in
a coal mine, Jaggie v. Davis Colliery Co., 75 W.Va. 370, 84
S.E. 941; an automobile, Ross v. Tabor, 53 Cal.App. 605,
200 P. 971, 973; a telephone lineman's safety belt, Boone
v. Lohr, 172 Iowa 440, 154 N.W. 591, 592; and a plank on
which a painting foreman was working, Peterson v. Beck,
27 Cal.App. 571, 150 P. 788, 789; but not, however, to a
station water tank, rope, or scaffold used thereon, by a
painter, McFarland v. Chesapeake & 0. Ry. Co., 177 Ky.
551, 197 S.W. 944, 947; nor to a moving picture machine,
Balcom v. Ellintuch & Yarfitz, 179 App.Div. 548, 166 N.Y.S.
841, 842; nor the steps of a caboose, Cincinnati, N. 0. & T.
P. Ry. Co. v. Goldston, 163 Ky. 42, 173 S.W. 161, 162.
APPLICABLE. Fit, suitable, pertinent, or ap-
propriate. Thomas v. City of Huntington, 80 Ind.
App. 476, 141 N.E. 358, 359. Brought into actual
contact with. People v. Buffalo Cold Storage Co.,
185 N.Y.S. 790, 794, 113 Misc. 479.
When a constitution or court declares that the common
law is in force in a particular state so far as it is applica-
ble, it is meant that it must be applicable to the habits and
conditions of the community, as well as in harmony with
the genius, the spirit, and the objects of their institutions.
Wagner v. Bissell, 3 Iowa 402.
When a constitution prohibits the enactment of local or
special laws in all cases where a general law would be ap-
plicable, a general law should always be construed to be
applicable, in this sense, where the entire people of the
state have an interest in the subject. But where only a
portion of the people are affected, as in locating a county-
seat, it will depend upon the facts and circumstances of
each particular case whether such a law would be applica-
ble. Evans v. Job, 8 Nev. 322.
APPLICABLE LOCAL LAW. Term used to deter-
mine the persons who come within the term heirs
and is the law which would be used to ascertain
the heirs of the designated ancestor if he had
owned the property and had died intestate. Re-
statement, Property, § 305e.
APPLICANT. An applicant, as for letters of
administration, is one who is entitled thereto, and
who files a petition asking that letters be granted.
Jerauld v. Chambers, 44 Cal.App. 771, 187 P.
33.
APPLICARE. Lat. In old English law. To
fasten to; to moor (a vessel). Anciently ren-
dered, "to apply." Hale, de Jure Mar.
APPLICATIO EST VITA REGULIE. Application
is the life of a rule. 2 Bulst. 79.
APPLICATION. A putting to, placing before, pre-
ferring a request or petition to or before a person.
The act of making a request for something. In
re Meyer, 166 N.Y.S. 505, 100 Misc. 587. A written
request to have a certain quantity of land at or
near a certain specified place. Biddle v. Dougal,
5 Bin. (Pa.) 151. A petition. Scott v. Strobach,
49 Ala. 477, 489. Gardner v. Goodner Wholesale
Grocery Co., 113 Tex. 423, 256 S.W. 911, 913. The
use or disposition made of a thing. A bringing
together, in order to ascertain some relation or
establish some connection; as the application of
a rule or principle to a case or fact.
Insurance
The preliminary request, .declaration, or state-
ment made by a party applying for an insurance
policy, such as one on his life, or against fire.
Whipple v. Prudential Ins. Co. of America, 222
N.Y. 30, 118 N.E. 211, 212.
An "application" is no more than proposition to insur-
ance company and must be accepted before there can be
meeting of minds required to form binding contract.
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APPLICATION
Brouster v. John Hancock Mut. Life Ins. Co., Mo.App.,
171 S.W.2d 775, 777; Kronjaeger v. Travelers Ins. Co., 124
W.Va. 730, 22 S.E.2d 689, 692.
Payments
Appropriation of a payment to some particular
debt; or the determination to which of several
demands a general payment made by a debtor to
his creditor shall be applied.
Mere uncommunicated intention or belief on part of
debtor as to application of payment to creditor is not such
an appropriation as constitutes "application" by him. Dela-
ware Dredging Co. v. Tucker Stevedoring Co., C.C.A.Pa.,
25 F.2d 44, 46.
Purchase Money
The disposition made of the funds received by
a trustee on a sale of real estate held under the
trust.
APPLY. To make a formal request or petition,
usually in writing, to a court, officer, board, or
company, for the granting of some favor, or of
some rule or order, which is within his or their
power or discretion. For example, to apply for
an injunction, for a pardon, for a policy of insur-
ance, or for a receiver. In re Bucyrus Road Ma-
chinery Co., C.C.A.Ohio, 10 F.2d 333, 334.
To use or employ for a particular purpose; to
appropriate and devote to a particular use, object,
demand, or subject-matter. Thus, to apply pay-
ments to the reduction of interest. Foley v. Hast-
ings, 107 Conn. 9, 139 A. 305, 306. See Appro-
priate.
To put, use, or refer, as suitable or relative; to
co-ordinate language with a particular subject-
matter; as to apply the words of a statute to a
particular state of facts.
The word "apply" is used in connection with statutes in
two senses. When construing a statute, in describing the
class of persons, things, or functions which are within its
scope; as that the statute does not "apply" to transactions
in interstate commerce. When discussing the use made of
a statute, in referring to the process by which the statute
is made operative; as where the jury is told to "apply"
the statute of limitation if they find that the cause of ac-
tion arose before a given date. Brandeis, J., dissenting in
Dahnke-Walker Milling Co. v. Bondurant, 42 S.Ct. 106, 110,
n., 257 U.S. 282, 66 L. Ed. 239.
APPOINT. To designate, ordain, prescribe, nomi-
nate. People v. Fitzsimmons, 68 N.Y. 519;
Rhodes v. City of Tacoma, 97 Wash. 341, 166 P.
647. To allot, set apart. Heisler v. Robbins, 17
Ariz. 429, 153 P. 771, 772. To fix, constitute, or
ordain, prescribe, settle, also to assign authority
to a particular use, task or office, allot, designated.
Lambach v. Anderson, 228 Iowa 1173, 293 N.W.
505, 510.
"Appoint" is used where exclusive power and authority
is given to one person, officer, or body to name persons
to hold certain offices. State v. Doss, 102 W.Va. 162, 134
S.E. 749. It is usually distinguished from "elect," meaning
to choose by a vote of the qualified voters of the city.
State ex rel. Smith v. Bowman, 184 Mo.App. 549, 170 S.W.
700, 701. But the distinction is not invariably observed.
Schaffner v. Shaw, 191 Iowa 1047, 180 N.W. 853, 854.
APPOINTEE. A person who is appointed or se-
lected for a particular purpose; as the appointee
under a power is the person who is to receive the
benefit of the power.
"Appointed" and "elected" are used interchangeably.
Van Cleve v. Wallace, 216 Minn. 500, 13 N.W.2d 467, 469.
APPOINTMENT. The designation of a person, by
the person or persons having authority therefor,
to discharge the duties of some office or trust.
In re Nicholson's Estate, 104 Colo. 561, 93 P.2d
880, 884. See, also, Power of Appointment.
The exercise of a right to designate the per-
son or persons who are to take the use of real
estate. 2 Washb.Real Prop. 302; Merchants'
Loan & Trust Co. v. Patterson, 308 Ill. 519, 139
N.E. 912, 919. The act of a person in directing
the disposition of property, by limiting a use, or
by substituting a new use for a former one, in
pursuance of a power granted to him for that
purpose by a preceding deed, called a "power of
appointment;" also the deed or other instrument
by which he so conveys. Where the power em-
braces several permitted objects, and the appoint-
ment is made to one or more of them, excluding
others, it is called "exclusive."
Appointment may signify an appropriation of
money to a specific purpose. Harris v. Clark, 3
N.Y. 93, 119, 51 Am.Dec. 352. See Illusory Ap-
pointment. It may also mean the arranging of a
meeting. Spears v. State, 89 Tex.Cr.R. 459, 232
S.W. 326, 328.
Of fice or Public Function
The selection or designation of a person, by the
person or persons having authority therefor, to
fill an office or public function and discharge the
duties of the same. State v. Braman, 173 Wis.
596, 181 N.W. 729, 730.
The term "appointment" is to be distinguished from
"election." The former is an executive act. Election
means that the person is chosen by a principle of selection
in the nature of a vote, participated in by the public gen-
erally or by the entire class of persons qualified to express
their choice in this manner. Mono County v. Industrial
Ace. Commission, 175 Cal. 752, 167 P. 377, 378.
"Election" to office usually refers to vote of people,
whereas "appointment" relates to designation by some in-
dividual or group. Board of Education of Boyle County v.
McChesney, 235 Ky. 692, 32 S.W.2d 26, 27.
APPOINTOR. The person who appoints, or exe-
cutes a power of appointment; as appointee is
the person to whom or in whose favor an appoint-
ment is made. 1 Steph.Comm. 506, 507; 4 Kent,
Comm. 316.
One authorized by the donor, under the statute
of uses, to execute a power. 2 Bouv.Inst. n. 1923.
The appointor is the instrument of the donor of the
power, and the appointee takes under the original will or
instrument which creates the trust, and not from the donee
of the power. Barret v. Berea College, 48 R.I. 258, 137 A.
145, 147.
APPORT. L. Fr. In old English law. Tax;
tallage; tribute; imposition; payment; charge;
expenses. Kelham.
APPORTION. To divide and distribute propor-
tionally. School Dist. No. 3, Platte County, v.
School Dist. No. 2, Platte County, 29 Wyo. 80,
210 P. 562.
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APPRAISER
APPORTIONMENT. The division, partition, or
distribution of a subject-matter in proportionate
parts. Hunt v. Callaghan, 32 Ariz. 235, 257 P.
648, 649. The division of rights or liabilities
among several persons entitled or liable to them
in accordance with their respective interests. Val-
ley Nat. Bank of Phoenix v. Apache County, 57
Ariz. 459, 114 P.2d 883, 886.
Contracts
The allowance, in case of a severable contract,
partially performed, of a part of the entire con-
sideration proportioned to the degree in which
the contract was carried out.
Corporate Shares
The pro tanto division among the subscribers
of the shares allowed to be issued by the charter,
where more than the limited number have been
subscribed for. Haight v. Day, 1 Johns.Ch., N.Y.,
18.
Incumbrances
Where several persons are interested in an es-
tate, apportionment, as between them, is the de-
termination of the respective amounts which they
shall contribute towards the removal of the incum-
brance.
Rent
The allotment of their shares in a rent to each
of several parties owning it. The determination
of the amount of rent to be paid when the tenan-
cy is terminated at some period other than one of
the regular intervals for the payment of rent.
Gluck v. Baltimore, 81 Md. 315, 32 A. 515, 48 Am.
St.Rep. 515.
Representatives
The determination upon each decennial census
of the number of representatives in congress
which each state shall elect, the calculation being
based upon the population. See Const.U.S. art.
1, § 2; Amend. 14, § 2.
Right of Common
A division of the right of common between sev-
eral persons, among whom the land to which, as
an entirety, it first belonged has been divided.
Taxes
The apportionment of a tax consists in a selec-
tion of the subjects to be taxed, and in laying
down the rule by which to measure the contribu-
tion which each of these subjects shall make to
the tax. Barfield v. Gleason, 111 Ky. 491, 63 S.W.
964.
APPORTS EN NATURE. In French law. That
which a partner brings into the partnership other
than cash; for instance, securities, realty or per-
sonalty, cattle, stock, or even his personal ability
and knowledge. Argl.Fr.Merc.Law, 545.
APPORTUM. In old English law. The revenue,
profit, or emolument which a thing brings to the
owner. Commonly applied to a corody or pen-
sion. Blount.
Black's Law Dictionary Revised 4th Ed.-9
APPOSAL OF SHERIFFS. The charging them
with money received upon their account in the
exchequer. St. 22 & 23 Car. IL; Cowell.
APPOSER. An officer in the exchequer, clothed
with the duty of examining the sheriffs in respect
of their accounts. Usually called the "foreign ap-
poser." Termes de la Ley. The office is now
abolished.
APPOSTILLE, or APOSTILLE. In French law,
an addition or annotation made in the margin
of a writing. Merl. Repert.
APPRAISAL. A valuation or an estimation of
value of property by two disinterested persons of
suitable qualifications. Jacobs v. Schmidt, 231
Mich. 200, 203 N.W. 845, 846.
APPRAISE. In practice. To fix or set a price or
value upon; to fix and state the true value of a
thing, and, usually, in writing. Vincent v. Ger-
man Ins. Co., 120 Iowa, 272, 94 N.W. 458. To val-
ue property at what it is worth. Tax Commission
of Ohio v. Clark, 20 Ohio App. 166, 151 N.E. 780,
781.
To "appraise" money means to count. In re
Hollinger's Estate, 259 Pa. 72, 102 A. 409.
APPRAISEMENT. A just and true valuation of
property. A valuation set upon property under
judicial or legislative authority. Cocheco Mfg.
Co. v. Strafford, 51 N.H. 482. A valuation or es-
timation of the value of property. Littlehead v.
Sheppard, 123 Okl. 29, 251 P. 60, 62.
An "arbitration" presupposes a controversy or
difference to be decided, and the arbitrators pro-
ceed in a judicial way. On the other hand, an
appraisal or valuation is generally a mere auxil-
iary feature of a contract of sale, the purpose of
which is not to adjudicate a controversy but to
avoid one. Thompson v. Newman, 36 Cal.App.
248, 171 P. 982, 983.
APPRAISER. A person appointed by competent
authority to make an appraisement, to ascertain
and state the true value of goods or real estate.
The title of "appraiser" carries with it a sig-
nificance that he is to be the judge of the evi-
dence he desires submitted to him on the question
of valuation, in cases fairly treated by him. In re
Gibert's Estate, 160 N.Y.S. 213, 214, 96 Misc. 401.
General Appraisers
Appraisers appointed under an act of congress
to afford aid and assistance to the collectors of
customs in the appraisement of imported mer-
chandise. Gibb v. Washington, 10 Fed.Cas. 288.
Merchant Appraisers
Where the appraisement of an invoice of im-
ported goods made by the revenue officers at the
custom house is not satisfactory to the importer,
persons may be selected (under this name) to
make a definitive valuation; they must be mer-
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APPRECIABLE
chants engaged in trade. Oelberman v. Merritt,
C.C.N.Y., 19 Fed. 408; s. c., 8 Sup.Ct. 151, 123 U.S.
356, 31 L.Ed. 164.
APPRECIABLE. Capable of being estimated,
weighed, judged of, or recognized by the mind;
capable of being perceived or recognized by the
senses; perceptible but not a synonym of substan-
tial. Fisher v. Los Angeles Pacific Co., 21 Cal.
App. 677, 132 P. 767, 769; Stodder v. Rosen Talk-
ing Mach. Co., 247 Mass. 60, 141 N:E. 569, 571.
As used in a decree enjoining operation of a cotton oil
mill in such manner as to throw out lint in "appreciable"
quantities, "appreciable" may be practically synonymous
with unreasonable. Buckeye Cotton Oil Co. v. Ragland, C.
C.A.Miss., 11 F.2d 231, 234.
APPRECIATE. To estimate justly; to set a price
or value on. Holmes v. Connell's Estate, 207 Mich.
663, 175 N.W. 148, 149; Brace v. Black, 125 Ill.
33, 17 N.E. 66. When used with reference to the
nature and .effect of an act, "appreciate" may be
synonymous with "know" or "understand." West-
ern Indemnity Co. v. MacKechnie, Tex.Civ.App.,
214 S.W. 456, 460.
APPRECIATION IN VALUE. Appreciation in
the value of property has reference to the so-
called unearned increment, and does not include
that added value of the property made by exten-
sions and permanent improvements. People ex
rel. Adirondack Power & Light Corporation v.
Public Service Commission, 193 N.Y.S. 186, 189,
200 App.Div. 268.
APPREHEND. To take hold of, whether with
the mind, and so to conceive, believe, fear, dread,
Trogdon v. State, 133 Ind. 1, 32 N.E. 725; or ac-
tually and bodily, and so to take a person on a
criminal process; to seize; to arrest, Hogan v.
Stophlet, 179 Ill. 150, 53 N.E. 604, 44 L.R.A. 809.
To understand. Golden v. State, 25 Ga. 527, 531.
To be conscious or sensible of. Collins v. Liddle,
67 Utah, 242, 247 P. 476, 479.
APPREHENSIO. Lat. In the civil and old Eng-
lish law. A taking hold of a person or thing;
apprehension; the seizure or capture of a person.
Calvin.
One of the varieties or subordinate forms of
occupatio, or the mode of acquiring title to things
not belonging to any one.
APPREHENSION.
In Practice
The seizure, taking, or arrest of a person on a
criminal charge. The term "apprehension" is
applied exclusively to criminal cases, and "arrest"
to both criminal and civil cases. People v. Mar-
tin, 188 Cal. 281, 205 P. 121, 123, 21 A.L.R. 1399.
Civil Law
/ A physical or corporal act, (corpus,) on the partV of one who intends to acquire possession of a
thing, by which he brings himself into such a re-
lation to the thing that he may subject it to his
exclusive control; or by which he obtains the
physical ability to exercise his power over the
thing whenever he pleases. One of the requisites
to the acquisition of judicial possession, and by
which, when accompanied by intention, (animus,)
possession is acquired. Mackeld.Rom.Law, §§ 248,
249, 250.
APPRENDRE. A fee or profit taken or received.
Cowell.
APPRENTICE. A person, usually a minor, bound
in due form of law to a master, to learn from him
his art, trade,' or business, and to serve him during
the time of his apprenticeship. 1 Bl.Comm. 426.
City of St. Louis v. Bender, 248 Mo. 113, 154 S.W.
88, 89, 44 L.R.A.,N.S., 1072.
APPRENTICE EN LA LEY. An ancient name
for students at law, and afterwards applied to
counsellors, apprentici ad barras, from which
comes the more modern word "barrister." In
some of the ancient law-writers the terms appren-
tice and barrister are synonymous. Co. 2d Inst.
214; Eunomus, Dial. 2, § 53, p. 155.
APPRENTICESHIP. A contract by which one
person, usually a minor, called the "apprentice,"
is bound to another person, called the "master,"
to serve him during a prescribed term of years in
his art, trade, or business, in consideration of
being instructed by the master in such art or
trade, and (commonly) of receiving his support
and maintenance from the master during such
term.
The term during which an apprentice is to
serve.
The status of an apprentice; the relation sub-
sisting between an apprentice and his master.
APPRENTICIUS AD LEGEM. An apprentice to
the law; a law student; a counsellor below the
degree of serjeant; a barrister. See Apprentice
en la Ley.
APPRIZING. In Scotch law. A form of process
by which a creditor formerly took possession of
the estates of the debtor in payment of the debt
due. It is now superseded by adjudications.
APPROACH. To come nearer in space. Lawrence
v. Goodwill, 44 Cal.App. 440; Weber v. Greene-'baum, 270 Pa. 382, 113 A. 413, 414.
Thus, an "approaching" street car is one coming near to,
in point of time and place. Ruffin Coal & Transfer Co. v.
Rich, 214 Ala. 622, 108 So. 600, 602.
APPROACH, RIGHT OF. In international law.
The right of a ship of war, upon the high sea, to
draw near to another vessel for the purpose of
ascertaining the nationality of the latter. The
Marianna Flora, 11 Wheat., U.S., 43, 44, 6 L.Ed.
405. Kent understood it to be equivalent to the
right of visit. 1 Kent, Comm. 153. And at pres-
ent the right of approach has no existence apart
from the right of visit.
APPROACHES. A way, passage, or avenue by
which a place or building can be approached; an
access. State ex rel. Washington Toll Bridge Au-
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APPROPRIATION
thority v. Yelle, 197 Wash. 110, 84 P.2d 688, 691;
State v. Zangerle, 43 Ohio App. 30, 182 N.E. 644,
646.
Comprising the necessary traffic arteries and adjustment
of a bridge to develop its maximum traffic capacity. State
ex rel. Washington Toll Bridge Authority v. Yelle, 197
Wash. 110, 84 P.2d 688, 691, 692, 694; including embank-
ments, grades, or structures of any sort serving as a pas-
sage or way. Starrett v. Inhabitants of Town of Thomas-
ton, 126 Me. 205, 137 A. 67, 70. That part of the roadway
which is essential to make the bridge accessible and con-
venient for public use. With respect to bridge or viaduct;
In re Rosedale Ave. in City of New York, 162 N.Y.S. 877,
885, 175 App.Div. 864.
APPROBATE AND REPROBATE. In Scotch law.
To approve and reject; to attempt to take ad-
vantage of one part, and reject the rest. Bell.
Equity suffers no person to approbate and reprobate the
same deed. 1 Kames, Eq. 317; 1 Bell, Comm. 146. The
doctrine of approbate and reprobate is the English doctrine
of election.
APPROPRIATE. To make a thing one's own; to
make a thing the subject of property; to exercise
dominion over an object to the extent, and for
the purpose, of making it subserve one's own
proper use or pleasure. People v. Ashworth, 222
N.Y.S. 24, 27, 220 App.Div. 498. To prescribe a
particular use for particular moneys; to desig-
nate or destine a fund or property for a distinct
use, or for the payment of a particular demand.
McKenzie Const. Co. v. City of San Antonio, Tex.,
50 S.W.2d 349, 352; Jennings v. Kinsey, 308 Mo.
265, 271 S.W. 786, 787. Also used in the sense of
distribute.
In this sense it may denote the act of an executor or ad-
ministrator who distributes the estate of his decedent
among the legatees, heirs, or others entitled, in pursuance
of his duties and according to their respective rights; to
take away from one to whom a chattel belongs, and to de-
vote it to the exclusive use and benefit of him who appro-
priates it. Davis v. Perkins, 178 Ga. 195, 172 S.E. 562, 565;
or properly used in this sense to denote the acquisition of
property and a right of exclusive enjoyment in those things
which before were without an owner or were publics juris.
People v. Lammerts, 164 N.Y. 137, 58 N.E. 22.
APPROPRIATE PROCESS. A subpoena, sub-
poena duces tecum, or order to appear and pro-
duce books and records and testify within
Internal Revenue Code providing that the Com-
missioner of Internal Revenue may ask the Dis-
trict Court by appropriate process to compel at-
tendance, testimony or production of books, pa-
pers or other data. In re Wolrich, D.C.N.Y., 84
F.Supp. 481, 482.
APPROPRIATION. The act of appropriating or
setting apart; prescribing the destination of a
thing; designating the use or application of a
fund. State v. Erickson, 93 Mont. 466, 19 P.2d
227, 229; McKenzie Const. Co. v. City of San An-
tonio, Tex.Civ.App., 50 S.W.2d 349, 352.
Public Law
The act by which the legislative department of
government designates a particular fund, or sets
apart a specified portion of the public revenue or
of the money in the public treasury, to be applied
to some general object of governmental expendi-
ture, or to some individual purchase or expense.
Blaine County Inv. Co. v. Gallet, 35 Idaho, 102,
204 P. 1066, 1067. Authority given by Legislature
to proper officers to apply distinctly specified sum
from designated fund out of treasury in given
year for specified object or demand against state.
State ex rel. Murray v. Carter, 167 Okl. 473, 30
P.2d 700, 702.
An element of the definition of "appropriation" is that
the money appropriated be out of the general revenues of
the state. Black and White Taxicab Co. v. Standard Oil
Co., 25 Ariz. 381, 218 P. 139, 144. An "expenditure" is the
expending, a laying out of money, disbursement, and is not
the same as an "appropriation," the setting apart or as-
signment to a particular person or use. Grout v. Gates,
97 Vt. 434, 124 A. 76, 80; Suppiger v. Eniking, 60 Idaho
292, 91 P.2d 362, 364, 365.
A specific appropriation is an act of the legisla-
ture by which a named sum of money has been
set apart in the treasury, and devoted to the pay-
ment of a particular demand. Stratton v. Green,
45 Cal. 149.
Appropriation of land. The act of selecting, de-
voting, or setting apart land for a particular use
or purpose, as where land is appropriated for pub-
lic buildings, military reservations, or other pub-
lic uses. McSorley v. Hill, 2 Wash.St. 638, 27 Pac.
552; Jackson v. Wilcox, 2 Ill. 360. Taking of pri-
vate property for public use in the exercise of the
power of eminent domain. N. Ward Co. v. Board
of Street Com'rs of City of Boston, 217 Mass. 381,
104 N.E. 965, 966. In this sense it may refer mere-
ly to physical occupation and contemplate pay-
ment prior thereto, in contra-distinction to "tak-
ing," referring to a legal taking and presupposing
payment after damages are due. Keller v. City
of Bridgeport, 101 Conn, 669, 127 A. 508, 511.
Appropriation of payments. The application of
a payment to the discharge of a particular debt.
Thus, if a creditor has two distinct debts due to him
from his debtor, and the latter makes a general payment
on account, without specifying at the time to which debt
he intends the payment to apply, it is optional for the
creditor to appropriate (apply) the payment to either of
the two debts he pleases. Gwin v. McLean, 62 Miss. 121;
Martin v. Draher, 5 Watts (Pa.) 544.
Appropriation of water. An appropriation of
water flowing on the public domain consists in
the capture, impounding, or diversion of it from
its natural course or channel and its actual appli-
cation to some beneficial use private or personal
to the appropriator, to the entire exclusion (or
exclusion to the extent of the water appropriated)
of all other persons. To constitute a valid ap-
propriation, there must be an intent to apply the
water to some beneficial use existing at the time
or contemplated in the future, a diversion from
the natural channel by means of a ditch or canal,
or some other open physical act of taking posses-
sion of the water, and an actual application of it
within a reasonable time to some useful or bene-
ficial purpose. In re Water Rights in Silvies
River, 115 Or. 27, 237 P. 322, 336; In re Manse
Spring and Its Tributaries, Nye County, 60 Nev.
280, 108 P.2d 311, 314; State of Neb. v. State of
Wyo., U.S.Neb. & Wyo., 65 S.Ct. 1332, 1349, 325
U. S. 589, 89 L.Ed. 1815.
It follows water to its original source whether through
surface or subterranean streams or through percolation,
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APPROPRIATION
Justesen v. Olsen, 40 P.2d 802, 809, 86 Utah 158; and en-
titles appropriator to continuing right to use water to ex-
tent of appropriation, but not beyond that reasonably re-
quired and actually used. State of Arizona v. State of
California, Ariz. & Cal., 56 S.Ct. 848, 852, 298 U.S. 558, 80
L.Ed. 1331.
English Ecclesiastical Law
The perpetual annexing of a benefice to some
spiritual corporation either sole or aggregate, be-
ing the patron of the living. 1 Bl.Comm. 384;
3 Steph.Comm. 70-75; 1 Crabb, Real Prop. p. 144,
§ 129.
Where the annexation is to the use of a lay person, It is
usually called an "impropriation" (q. v.). 1 Crabb, Real
Prop. p. 145, § 130. There have been no appropriations
since the dissolution of monasteries.
APPROPRIATION BILL. A measure before a
legislative body authorizing the expenditure of
public moneys and stipulating the amount, man-
ner, and purpose of the various items of expendi-
ture. State ex rel. Finnegan v. Dammann, 220
Wis. 143, 264 N.W. 622, 624.
APPROPRIATOR. One who makes an appropria-
tion; as, an appropriator of water. Lux v. Hag-
gin, 69 Cal. 255, 10 Pac. 736.
English Ecclesiastical Law
A ' spiritual corporation entitled to the profits of
a benefice.
APPROVAL. The act of confirming, ratifying,
sanctioning, or consenting to some act or thing
done by another. Rooney v. South Sioux City,
111 Neb. 1, 195 N.W. 474, 475. "Approval" implies
knowledge and exercise of discretion after knowl-
edge. State v. Duckett, 133 S.C. 85, 130 S.E. 340,
342; McCarten v. Sanderson, 111 Mont. 407, 109
P.2d 1108, 1112, 132 A.L.R. 1229.
The act of a judge or magistrate in sanction-
ing and accepting as satisfactory a bond, security,
or other instrument which is required by law to
pass his inspection and receive his approbation
before it becomes operative.
APPROVE. To be satisfied with; to confirm, rati-
fy, sanction, or consent to some act or thing done
by another; to sanction officially; to ratify; to
confirm; to pronounce good; think or judge well
of; admit the propriety or excellence of; be
pleased with. Western Hospital Ass'n v. Indus-
trial Accident Board, 51 Idaho 334, 6 P.2d 845,
848; MacNeill v. Maddox, 194 Ga. 802, 22 S.E.2d
653, 654; Board of Education of City of Hutchin-
son v. Reno Community High School, 124 Kan.
175; 257 P. 957, 959; Tibbens v. Clayton, D.C.
Okl., 288 F. 393, 394. Distinguishable from "au-
thorize," meaning to permit a thing to be done in
future. Gray v. Gill, 210 N.Y.S. 658, 660, 125 Misc.
70.
To take to one's proper and separate use. To
improve; to enhance the value or profits of any-
thing. To inclose and cultivate common or waste
land.
To approve common or waste land is to inclose and con-
vert it to the purposes of husbandry, which the owner
might always do, provided he left common sufficient for
such as were entitled to it. 3 Kent, Comm. 406.
Old Criminal Law
To accuse or prove; to accuse an accomplice
by giving evidence against him.
APPROVED INDORSED NOTES. Notes in-
dorsed by another person than the maker, for ad..
ditional security, the indorser being satisfactory
to the payee. Mills v. Hunt, 20 Wend., N.Y., 431.
APPROVEMENT. At ancient common law a
practice of criminal prosecutions by which a per-
son accused of treason or felony was permitted
to exonerate himself by accusing others and es-
caping prosecution himself. Lee v. State, 115
Fla. 30, 155 So. 123; Guthrie v. Commonwealth,
171 Va. 461, 198 S.E. 481, 482, 119 A.L.R. 683.
The custom existed only in capital cases, and consisted in
the accused, called "approver", being arraigned and per-
mitted to confess before plea and appeal or accuse another
as his accomplice of the same crime in order to obtain his
pardon.
APPROVER. L. Fr. To approve or prove; to
vouch. Kelham.
APPROVER. An accomplice in crime who ac-
cuses others of the same offense, and is admitted
as a witness at the discretion of the court to give
evidence against his companions in guilt. He is
vulgarly called "King's Evidence."
One who confesses himself guilty of felony
and accuses others of the same crime to save him-
self from punishment. Myers v. People, 26 Ill.
175. By the old law, if he failed to convict those
he accused he was at once hung. Lee v. State,
115 Fla. 30, 155 So. 123. See, also, Antithetarius.
In old English law. Certain men sent into-
the several counties to increase the farms (rents)
of hundreds and wapentakes, which formerly
were let at a certain value to the sheriff. Cowell.
Bailiffs of lords in their franchises. Sheriffs
were called the king's "approvers" in 1 Edw. III,
st. 1, c. 1. Termes de la Ley, 49.
Approvers in the Marches were those who had
license to sell and purchase beasts there.
APPROXIMATE. Used in the sense of an esti-
mate merely, meaning more or less, but about and
near the amount, quantity, or distance specified.
Stockburger v. Brooker, 33 Ga.App. 676, 127 S.E.
663. Near to; about; a little more or less; close.
Texas Employers' Ins. Ass'n v. Fitzgerald, Tex.
Civ.App., 292 S.W. 925, 927. Fiesel v. Bennett, 225
Iowa 98, 280 N.W. 482, 484. "Approximately"
is very nearly synonymous with "proximately,"
P. B. Arnold Co. v. Buchanan, 60 Ind.App. 626,
111 N.E. 204, 207; meaning very nearly, but not
absolutely. Sandberg v. Margold Realty Corpo-
ration, 247 N.Y.S. 139, 141, 231 App.Div. 241.
APPROXIMATION. Equitable doctrine by which
precise terms of charitable trust can be varied
under certain circumstances. Heustess v. Hunt-
ingdon College, 242 Ala. 272, 5 So.2d 777, 779, 780;
applicable solely to charitable trusts and em-
ployed only where on failure of trust the court
finds a general charitable intent. Waterbury
Trust Co. v. Porter, 131 Conn. 206, 38 A.2d 598,
603.
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AQUAGIUM
APPRUARE. To take to one's use or profit. Cow-
ell.
APPULSUS. In the civil law. A driving to, as
of cattle to water. Dig. 8, 3, 1, 1.
APPURTENANCE. That which belongs to some-
thing else; an adjunct; an appendage; some-
thing annexed to another thing more worthy as
principal, and which passes as incident to it, as a
right of way or other easement to land; an out-
house, barn, garden, or orchard, to a house or
messuage. Cohen v. Whitcomb, 142 Minn. 20, 170
N.W. 851, 852; Alwes v. Richheimer, 185 Ark. 535,
47 S.W.2d 1084, 1085; Joplin Waterworks Co. v.
Jasper County, 327 Mo. 964, 38 S.W.2d 1068, 1076.
An article adapted to the use of the property to
which it is connected, and which was intended to
be a permanent accession to the freehold. Szilagy
v. Taylor, 63 Ohio App. 105, 25 N.E.2d 360, 361.
An article may become an "appurtenance to realty"
without physical attachment. Metropolitan Life Ins. Co. v.
Jensen, 69 S.D. 225, 9 N.W.2d 140, 141.
APPURTENANT. Belonging to; accessory or in-
cident to; adjunct, appended, or annexed to; an-
swering to accessorium in the civil law. 2 Steph.
Comm. 30 note. McClintic-Marshall Co. v. Ford.
Motor Co., 254 Mich. 305, 236 N.W. 792, 795; Be-
ing employed in leases for the purpose of includ-
ing any easements or servitudes used or enjoyed
with the demised premises. Riddle V. Littlefield,
53 N.H. 508, 16 Am.Rep. 388.
A thing is "appurtenant" to something else only when
it stands in relation of an incident to a principal, and is
necessarily connected with the use and enjoyment of the
latter. Catterall v. Pulis, 137 Okl. 86, 278 P. 292, 294.
A thing is deemed to be incidental or appurtenant to land
when it is by right used with the land for its benefit, as
in the case of a way, or water-course, or of a passage for
light, air, or heat from or across the land of another. Mat-
tix v. Swepston, 127 Tenn. 693, 155 S.W. 928, 930.
Land cannot be appurtenant to land. Hurley v. Liberty
Lake Co., 112 Wash. 207, 192 P. 4, 5; except in case of
land under water. In re Eastern Boulevard in Borough of
the Bronx, City of New York, 243 N.Y.S. 57, 61, 230 App.
Div. 52.
APRAXIA. See Aphasia.
APROVECHAMEENTO. In Spanish law. Ap-
provement, or improvement and enjoyment of
public lands. As applied to pueblo lands, it has
particular reference to the commons, and includes
not only the actual enjoyment of them but a right
to such enjoyment. Hart v. Burnett, 15 Cal. 530,
566.
APT. Fit; suitable; appropriate.
APT TDIE. Apt time sometimes depends upon
lapse of time; as, where a thing is required to be
done at the first term, or within a given time, it
cannot be done afterwards. But the phrase more
usually refers to the order of proceedings, as fit
or suitable. Holmes Electric Co. v. Carolina
Power & Light Co., 150 S.E. 621, 623, 197 N.C. 766.
APT WORDS. Words proper to produce the legal
effect for which they are intended; sound techni-
cal phrases.
APTA VIRO. Fit for a husband; marriageable;
a woman who has reached marriageable years.
APUD ACTA. Among the acts; among the re-
corded proceedings. In the civil law, this phrase
is applied to appeals taken orally, in the presence
of the judge, at the time of judgment or sentence.
Credit Co., Ltd., v. Arkansas Cent. Ry. Co., 9 S.
Ct. 107, 108, 128 U.S. 258, 32 L.Ed. 448.
AQUA. In the civil and old English law. Water;
sometimes a stream or water-course.
AQUA zrESTIVA. In Roman law. Summer wa-
ter; water that was used in summer only. Dig.
43, 20, 1, 3, 4.
AQUA CEDIT SOLO. Water follows the land.
A sale of land will pass the water which covers
it. 2 Bl.Comm. 18; Co.Litt. 4.
AQUA CURRENS. Running water.
AQUA CURRIT ET DEBET CURRERE, UT CUR-
RERE SOLEBAT. Water runs, and ought to run,
as it has used to run. A running stream should
be left to flow in its natural channel, without
alteration or diversion, Goble v. Louisville & N. R.
Co., 187 Ga. 243, 200 S.E. 259, 261; that water
is the common and equal property of every one
through whose domain it flows. Elmore v. In-
galls, 17 So.2d 674, 245 Ala. 481.
AQUA DULCIS, or FRISCA. Fresh water. Reg.
Orig. 97; Bract. fols. 117, 135.
AQUA FONTANEA. Spring water. Fleta, lib.
4, c. 27, § 8.
AQUA PROFLUENS. Flowing or running water.
Dig. 1, 8, 2.
AQUA QUOTIDIANA. In Roman law. Daily wa-
ter; water that might be drawn at all times of
the year, (qua quis quotidie possit uti, si vellet).
Dig. 43, 20, 1-4.
AQUA SALSA. Salt water.
AQUAZE DUCTUS. In the civil law. A servitude
which consists in the right to carry water by
means of pipes or conduits over or through the
estate of another. Dig. 8, 3, 1; Inst. 2, 3.
AQULE HAUSTUS. In the civil law. A servitude
which consists in the right to draw water from
the fountain, pool, or spring of another. Inst. 2,
3, 2; Dig. 8, 3, 1, 1.
AQU)E IMMITTEND1E. A civil law easement
or servitude, consisting in the right of one whose
house is surrounded with other buildings to cast
waste water upon the adjacent roofs or yards.
Similar to the common law easement of drip. Bel-
lows v. Sackett, 15 Barb. (N.Y.) 96.
AQUAGIUM. A canal, ditch, or water course run-
ning through marshy grounds. A mark or gauge
placed in or on the banks of a running stream, to
indicate the height of the water, was called "aqua-
g au g ium." Spelman.
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AQUATIC
AQUATIC RIGHTS. Rights which individuals
have to the use of the sea and rivers, for the pur-
pose of fishing and navigation, and also to the
soil in the sea and rivers.
AQUILIAN LAW. See Lex Aquilia,
ARABANT. They plowed. A term of feudal law,
applied to those who held by the tenure of plow-
ing and tilling the lord's lands within the manor.
Cowell.
ARABLE LAND. That which is fit for plowing or
tillage, and thus is distinguishable from swamp
land, which is land that is too wet for cultiva-
tion. 6 C.J.S. p. 143; McCarter v. Sooy Oyster
Co., 75 A. 211, 215, 78 N.J.Law, 394.
ARAHO. In feudal law. To make oath in the
church or some other holy place. All oaths were
made in the church upon the relics of saints, ac-
cording to the Ripuarian laws. Cowell; Spelman.
ARALIA. Plowlands. Land fit for the plow. De-
noting the character of land, rather than its con-
dition. Spelman.
ARATOR. A plowman; a farmer of arable land.
ARATRUM TERR)E. In old English law. A plow
of land; a plowland; as much land as could be
tilled with one plow (or by a single "arator" or
plowman). Whishaw.
ARATURA TERRLE. The plowing of land by the
tenant, or vassal, in the service of his lord. Whi-
shaw.
ARATURIA. Land suitable for the plow; arable
land. Spelman.
ARBITER. A person chosen to decide a contro-
versy; an arbitrator, referee. A person bound
to decide according to the rules of law and equity,
as distinguished from an arbitrator, who may
proceed wholly at his own discretion, so that it
be according to the judgment of a sound man.
Cowell.
In the Roman law. A judge invested with a
discretionary power. A person appointed by the
praetor to examine and decide that class of causes
or actions termed "bona fidei," and who had the
power of judging according to the principles of
equity, (ex cequo et bono; ) distinguished from
the judex, ( q. v.,) who was bound to decide ac-
cording to strict law. Inst. 4, 6, 30, 31.
According to Mr. Abbott, the distinction is as follows:
"Arbitrator" is a technical name of a person selected with
reference to an established system for friendly determina-
tion of controversies, which, though not judicial, is yet
regulated by law; so that the powers and duties of the
arbitrator, when once he is chosen, are prescribed by law,
and his doings may be judicially revised if he has exceeded
his authority. "Arbiter" is an untechnical designation of
a person to whom a controversy is referred, irrespective
of any law to govern the decision ; and is the proper word
to signify a referee of a question outside of or above mu-
nicipal law. But it is elsewhere said that the distinction
between arbiters and arbitrators is not observed in modern
law. Russ.Arb. 112.
ARBITRAGE. Transactions of bankers and mer-
cantile houses by which stocks or bills are bought
in one market and sold in another for the sake
of the profit arising from a difference in price in
the two markets.
ARBITRAMENT. The award or decision of ar-
bitrators upon a matter of dispute, which has
been submitted to them. Termes de la Ley.
ARBITRAMENT AND AWARD. A plea to an ac-
tion brought for the same cause which had been
submitted to arbitration and on which an award
had been made. Wats.Arb. 256.
ARBITRAMENTUM IEQUUM TRIBUIT CUIQUE
SUUM. A just arbitration renders to every one
his own. Noy, Max. 248.
ARBITRARILY. See Arbitrary.
A finding that certain orders were "arbitrarily" given by
an engineer in charge of a public improvement did not
amount to a finding that they were given in bad faith,
fraudulently, or through ignorance or incompetency. First
Savings & Trust Co. v. Milwaukee County, 158 Wis. 207, 148
N.W. 22, 33.
ARBITRARINESS. Conduct or acts based alone
upon one's will, and not upon any course of rea-
soning and exercise of judgment. Garman v. My-
ers, 183 Okl. 141, 80 P.2d 624, 626.
ARBITRARY. Means in an "arbitrary" manner,
as fixed or done capriciously or at pleasure; with-
out adequate determining principle; not founded
in the nature of things; nonrational; not done or
acting according to reason or judgment; depend-
ing on the will alone; absolutely in power; ca-
priciously; tyrannical; despotic; Cornell v.
Swisher County, Tex.Civ.App., 78 S.W.2d 1072,
1074. Without fair, solid, and substantial cause;
that is, without cause based upon the law. U. S.
v. Lotempio, D.C.N.Y., 58 F.2d 358, 359; not gov-
erned by any fixed rules or standard. People ex
rel. Hultman v. Gilchrist, 188 N.Y.S. 61, 65, 114
Misc. 651.
ARBITRARY GOVERNMENT. The difference be-
tween a free and an arbitrary government is that
in the former limits are assigned to those to whom
the administration is committed, but the latter
depends on the will of the departments or some
of them. Kamper v. Hawkins, 1 Va.Cas. 20, 23.
ARBITRARY POWER. Power to act according to
one's own will; especially applicable to power
conferred on an administrative officer, who is not
furnished any adequate determining principle.
Fox Film Corporation v. Trumbull, D.C.Conn., 7
F.2d 715, 727.
ARBITRARY PUNISHMENT. That punishment
which is left to the decision of the judge, in dis-
tinction from those defined by statute.
ARBITRATION. The submission for determina-
tion of disputed matter to private unofficial per-
sons selected in manner provided by law or agree-
ment. Stockwell v. Equitable Fire & Marine Ins.
Co., 25 P.2d 873, 134 Cal.App. 534. The substitu-
tion of their award or decision for judgment of
a court. In re Curtis-Castle Arbitration, 64 Conn.
501, 30 A. 769, 42 Am.St.Rep. 200; Atlantic Fruit
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ARCHDEACON'S
Co. v. Red Cross Line, D.C.N.Y., 276 F. 319; Red
Cross Line v. Atlantic Fruit Co., 44 S.Ct. 274, 264
U.S. 109, 68 L.Ed. 582.
Compulsory arbitration is that which occurs when the
consent of one of the parties is enforced by statutory pro-
visions. Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135,
52 L.R.A. 369.
Voluntary arbitration Is by mutual and free consent of
the parties.
The submission is an agreement by which parties agree
to submit their differences to the decision of a referee or
arbitrators. It is sometimes termed a reference. 3 M. &
W. 816; McManus v. McCulloch, 6 Watts (Pa.) 357; Ste-
wart v. Cass, 16 Vt. 663, 42 Am. Dec. 534; Howard v. Sex-
ton, 4 N.Y. 157. As to "final submission," see In re Gitt,
125 N.Y.S. 369, 140 App.Div. 382. In a wide sense, "arbi-
tration" may embrace the whole method of thus settling
controversies, and include all the various steps. But in a
more strict use, the term denotes only the submission and
hearing, the decision being separately spoken of, and called
an "award." An award is the judgment or decision of ar-
bitrators or referees on a matter submitted to them. It is
also the writing containing such judgment. Cowell;
Termes de la Ley; Jenk. 137. See Award.
As distinguished from appraisal, an arbitration presup-
poses a controversy or a difference to be tried and decided.
On the other hand, an appraisal or valuation is generally a
mere auxiliary feature, as of a contract of sale, the pur-
pose of which is not to adjudicate a controversy but to
avoid one. Toledo S. S. Co. v. Zenith Transp. Co., 184 F.
391, 106 C.C.A. 501.
ARBITRATION CLAUSE. A clause inserted in
a contract providing for compulsory arbitration
in case of dispute as to rights or liabilities under
it; ineffectual if it purports to oust the courts of
jurisdiction entirely. See Perry v. Cobb, 88 Me.
435, 34 A. 278, 49 L.R.A. 389.
ARBITRATION OF EXCHANGE. This takes
place where a merchant pays his debts in one
country by a bill of exchange upon another.
The business of buying and selling exchange (bills of ex-
change) between two or more countries or markets, and
particularly where the profits of such business are to be
derived from a calculation of the relative value of ex-
change in the two countries or markets, and by taking ad-
vantage of the fact that the rate of exchange may be high-
er in the one place than in the other at the same time.
ARBITRATOR. A private, disinterested person,
chosen by the parties to a disputed question, for
the purpose of hearing their contention, and giv-
ing judgment between them; to whose decision
(award) the litigants submit themselves either
voluntarily, or, in some cases, compulsorily, by
order of a court. Fudickar v. Insurance Co., 62
N.Y. 399.
"Referee" is of frequent modern use as a synonym of
arbitrator, but is in its origin of broader signification and
less accurate than arbitrator.
ARBITRIOS. In Spanish and Mexican law. Tax-
es imposed by municipalities on certain articles
of merchandise, to defray the general expenses
of government, in default of revenues from "pro-
prios" (q. v.), e., lands owned by the municipali-
ty, or the income of which was legally set apart
for its support. Sometimes used in a wider sense,
as meaning the resources of a town, including its
privileges in the royal lands as well as the taxes.
Escriche Dict.; Sheldon v. Milmo, 90 Tex. 1, 36
S.W. 413.
ARBITRIUM. The decision of an arbiter, or arbi-
trator; an award; a judgment.
ARBITRIUM EST JUDICIUM. An award is a
judgment. Jenk.Cent. 137.
ARBITRIUM EST JUDICIUM BONI VIRI, SEC-
UNDUM )EQUUM ET BONUM. An award is the
judgment of a good man, according to justice. 3
Bulst. 64.
ARBOR. Lat. A tree; a plant; something larger
than an herb; a general term including vines,
osiers, and even reeds. The mast of a ship. Bris-
sonius. Timber. Ainsworth; Calvinus, Lex.
In a technological sense, "arbor" denotes the core con-
sisting of an iron pipe over which is spread a thin coating
of damp sand and which is inserted in the mold used in
casting iron pipe. Casey-Hedges Co. v. Gates, 139 Tenn.
63, 201 S.W. 760, 761, L.R.A.1918B, 184.
ARBOR CIVILIS. A genealogical tree. Coke,
Inst.
ARBOR CONSANGUINITATIS. A table, formed
in the shape of a tree, showing the genealogy of
a family. See the arbor civilis of the civilians and
canonists. Hale, Com.Law, 335.
ARBOR DUM CRESCIT, LIGNUM DUM CRES-
CERE NESCIT. [That which is] a tree while it
grows, [is] wood when it ceases to grow. Cro.
Jac. 166; Hob. 77b, in marg.
ARBOR FINALIS. In old English law. A bound-
ary tree; a tree used for making a boundary line.
Bract. fols. 167, 207b.
ARCA. Lat. In the civil law. A chest or coffer;
a place for keeping money. Dig. 30, 30, 6; Id. 32,
64. Brissonius.
ARCANA IMPERII. State secrets. 1 B1.Comm.
337.
ARCARIUS._ In civil and old English law. A
treasurer; a keeper of public money% Cod. 10, 70,
15; Spelman.
ARCHAIONOMIA. A collection of Saxon laws,
published during the reign of Queen Elizabeth, in
the Saxon language, with a Latin version by Lam-
bard.
ARCHBISHOP. In English ecclesiastical law. The
chief of the clergy in his province, having supreme
power under the king or queen in all ecclesiastical
causes. He has also his own diocese, in which he
exercises episcopal jurisdiction, as in his province
he exercises archiepiscopal authority. In England
he is addressed as Most Reverend.
ARCHDEACON. A dignitary of the Anglican
church who has ecclesiastical jurisdiction imme-
diately subordinate to that of the bishop, either
throughout the whole of his diocese or in some
particular part of it. He is a ministerial officer;
1 Bla.Com. 383. He is addressed as Venerable.
ARCHDEACON'S COURT. In English ecclesias-
tical law. A court held before a judge appointed
by the archdeacon, and called his official. Its
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ARCHDEACONRY
jurisdiction comprises the granting of probates
and administrations, and ecclesiastical causes in
general, arising within the archdeaconry. It is
the most inferior court in the whole ecclesiastical
polity of England. 3 Bl.Comm. 64; 3 Steph.Comm.
430.
ARCHDEACONRY. A division of a diocese, and
the circuit of an archdeacon's jurisdiction.
ARCHERY. In feudal law. A service of keeping
a bow for the lord's use in the defense of his
castle. Co.Litt. 157.
ARCHES COURT. In English ecclesiastical law.
A court of appeal belonging to the Archbishop of
Canterbury, the judge of which is called the
"Dean of the Arches," because his court was
anciently held in the church of Saint Mary-le-Bow,
(Sancta Maria de Arcubus,) so named from the
steeple, which is raised upon pillars built arch-
wise. 3 Bl.Comm. 64.
The court was formerly held in the hall belonging to
the College of Civilians, commonly called "Doctors' Com-
mons." It is now held in Westminster Hall. Its proper
jurisdiction is only over the thirteen peculiar parishes be-
longing to the archbishop in London, but, the office of
Dean of the Arches having been for a long time united with
that of the archbishop's principal official, the Judge of the
Arches, in right of such added office, it receives and deter-
mines appeals from the sentences of all inferior ecclesiasti-
cal courts within the province.
ARCHETYPE. The original from which a copy
is made.
ARCHICAPELLANUS. L. Lat. In old European
law. A chief or high chancellor, (summus can-
cellarius). Spelman.
ARCHITECT. One who makes plans and specifi-
cations for a building and superintends its con-
struction. Payne v. De Vaughn, 77 Cal.App. 399,
246 P. 1069, 1071; Stephens County v. J. N. Mc-
Cammon, Inc., 122 Tex. 148, 52 S.W.2d 53; Sugar-
man Contracting Co. v. Phoenix Finance System,
Iowa, 243 N.W. 369, 370. Also one who plans and
constructs landscape work. State v. Mcllhenny,
201 La. 78, 9 So.2d 467, 470.
ARCHIVES. The Rolls; any place where ancient
records, charters, and evidences are kept. In
libraries, the private depository. Cowell; Spel-
man.
The derivative meaning of the word (now the
more common) denotes the writings themselves
thus preserved; thus we say the archives of a
college, of a monastery, a public office, etc. Texas
M. Ry. Co. v. Jarvis, 69 Tex. 537, 7 S.W. 210.
ARCHIVIST. The custodian of archives.
ARCIFINIOUS. (Lat., arcifinius or arcifinalis;
Fr., arcifinie.) Pertaining to landed estates hav-
ing natural boundaries, such as woods, mountains,
or rivers. The owners of such estates, unlike the
owners of "agri limitati" (q. v.), .have the right
of alluvion. Smith v. St. Louis Public Schools,
30 Mo. 290, 303.
Also, having a frontier forming a natural de-
fense. Twiss, Law of Nations, II. 215.
ARCTA ET SALVA CUSTODIA. Lat. In strict
(or close) and safe custody or keeping. When a
defendant is arrested on a capias ad satisfacien-
dum, (ca. sa.,) he is to be kept arcta et salva
custodi. 3 Bl.Comm. 415.
ARDENT SPIRITS. Spirituous or distilled liq-
uors. State v. Centennial Brewing Co., 55 Mont.
500, 179 P. 296, 297; Christian v. Commonwealth,
132 Va. 616, 111 S.E. 130.
Synonymous with "spirituous liquors" (q. v.)
and, sometimes, with intoxicating liquors gen-
erally, though the term is properly applied only
to liquors obtained by distillation, such as rum,
whisky, brandy, and gin. 48 C.J.S. p. 139; Sarlls
v. U. S., 14 S.Ct. 720, 721, 152 U.S. 570, 572, 38
L.Ed. 556.
ARDOUR. In old English law. An incendiary;
a house burner.
ARE, n. A surface measure in the French law,
in the form of a square, equal to 1076.441 square
feet.
AREA. A surface, a territory, a region. Fleming
v. Farmers Peanut Co., C.C.A.Ga., 128 F.2d 404,
406. Any plane surface, also the inclosed space
on which a building stands, the sunken space or
court giving ingress and affording light to the
basement of a building, a particular extent of
surface. State v. Armstrong, 97 Neb. 343, 149 N.
W. 786, 788, Ann.Cas.1917A, 554. An inclosed yard
or opening in a house; an open place adjoining
a house. 1 Chit.Pr. 176. The site of a house; a
site for building; the space where a house has
stood. The ground on which a house is built, and
which remains after the house is removed. Bris-
sonius; Calvin.
In the civil law. A vacant space in a city; a
place. not built upon. Dig. 50, 16, 211.
"Area" in geometry means the superficial con-
tents of any figure. State v. City of Polytechnic,
Tex.Civ.App., 194 S.W. 1136, 1140.
AREAL GEOLOGY. That branch of geology
which pertains to the distribution, position, and
form of the areas of the earth's surface, occupied
by different sorts of rock or different geologic
formations, and to the making of geologic maps.
Lewis v. Carr, 49 Nev. 366, 246 P. 695, 696.
AREAWAY. As used in an ordinance regulating
the construction of areaways under any sidewalk,
"areaway" was equivalent to cellar or room under
the sidewalk. State v. Armstrong, 97 Neb. 343,
149 N.W. 786, 788, Ann.Cas.1917A, 554.
ARENALES. In Spanish law. Sandy beaches;
or grounds on the banks of rivers. White, Recop.
b. 2, tit. 1, c. 6.
ARENDATOR. A farmer or renter; in some
provinces of Russia, formerly one who farmed
the public rents or revenues; a "crown arendator"
is one who rents an estate belonging to the crown.
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ARGUMENTUM
ARENIFODINA. In the civil law. A sandpit.
Dig. 7, 1, 13, 5.
ARENTARE. Lat. To rent; to let out at a cer-
tain rent. Cowell. Arentatio. A renting.
AREOPAGITE. In ancient Greek law. A lawyer
or chief judge of the Areopagus in capital matters
in Athens; a tribunal so called after a hill or
slight eminence, in a street of that city dedicated
to Mars, where the court was held in which those
judges were wont to sit. Wharton.
ARERE. L. Fr. Behind; in arrear; back; again.
Adams Gloss.
ARETRO. In arrear; behind. Also written a
retro.
ARG. An abbreviation of arguendo.
ARGENT. In heraldry. Silver.
ARGENTARIUS (pl., Argentarii). In the Roman
law, a money lender or broker; a dealer in mon-
ey; a banker. Argentarium, the instrument of
the loan, similar to the modern word "bond" or
"note."
ARGENTARIUS MILES. A money porter in the
English exchequer, who carries the money from
the lower to the upper exchequer to be examined
and tested. Spelman.
ARGENTEUS. An old French coin, answering
nearly to the English shilling. Spelman.
ARGENTUM. Silver; money.
ARGENTUM ALBUM. Bullion; uncoined silver;
common silver coin; silver coin worn smooth.
Cowell; Spelman.
ARGENTUM DEL God's money; God's penny;
money given as earnest in making a bargain.
Cowell.
ARGUENDO. In arguing; in the course of the
argument. A statement or observation made by
a judge as a matter of argument or illustration,
but not directly bearing upon the case at bar, or
only incidentally involved in it, is said (in the
reports) to be made arguendo, or in the abbrev-
iated form, arg.
ARGUMENT. An effort to establish belief by a
course of reasoning.
In rhetoric and logic, an inference drawn from
premises, the truth of which is indisputable, or
at least highly probable.
The argument of a demurrer, special case, appeal, or
other proceeding involving a question of law, consists of
the speeches of the opposed counsel; namely, the "open-
ing" of the counsel having the right to begin, (q. v.,) the
speech of his opponent, and the "reply" of the first coun-
sel. It answers to the trial of a question of fact. Sweet.
But the submission of printed briefs may technically con-
stitute an argument. State v. California Min. Co., 13 Nev.
209. Also, the opening statement to a jury is part of the
argument. State v. McCaskill, 173 Iowa 563, 155 N.W. 976,
977.
ARGUMENTATIVE. By way of reasoning. In
pleading. Indirect; inferential. Steph.P1. 179.
A pleading is so called in which the statement on which
the pleader relies is implied instead of being expressed,
or where it contains, in addition to proper statements of
facts, reasoning or arguments upon those facts and their
relation to the matter in dispute, such as should be re-
served for presentation at the trial.
ARGUMENTATIVE INSTRUCTION. An instruc-
tion which singles out or unduly emphasizes a
particular issue, theory, or defense, or one which
tends to invade the province of the jury with re-
gard to the weight, probative effect, or sufficiency
of the evidence or the inferences to be drawn
therefrom. See 64 C.J. §§ 594, 601.
ARGUMENTUM A COMMUNITER ACCIDENTI-
BUS IN JURE FREQUENS EST. An argument
drawn from things commonly happening is fre-
quent in law. Broom Max. 44.
ARGUMENTUM A DIVISIONE EST FORTISSI-
MUM IN JURE. An argument from division [of
the subject] is of the greatest force in law. Co.
Litt. 213b; 6 Coke 60.
ARGUMENTUM A MAJORI AD MINUS NEGA-
TIVE NON VALET; VALET E CONVERSO. An
argument from the greater to the less is of no
force negatively; affirmatively (or conversely)
it is. Jenk.Cent. 281.
ARGUMENTUM A SIMILI VALET IN LEGE. An
argument from a like case (from analogy) is good
in law. Co.Litt. 191.
ARGUMENTUM AB AUCTORITATE EST FOR-
TISSIMUM IN LEGE. An argument from au-
thority is the strongest in the law. "The book
cases are the best proof of what the law is." Co.
Litt. 254a.
ARGUMENTUM AB IMPOSSIBILI VALET IN
LEGE. An argument drawn from an impossibility
is forcible in law. Co.Litt. 92a.
ARGUMENTUM AB INCONVENIENT!. An argu-
ment arising from the inconvenience which the
proposed construction of the law would create.
Where the constitutionality of a statute is con-
cerned, it is only when the question is close and
doubtful that this doctrine will be applied and
consideration taken of the consequences of de-
claring the statute unconstitutional. Calhoun
County v. Early County, 205 Ga. 169, 52 S.E.2d
854; Smith v. City Council of Augusta, 203 Ga.
511, 47 S.E.2d 582, 587.
ARGUMENTUM AB INCONVENIENT! EST
VALIDUM IN LEGE; QUIA LEX NON PERMIT-
TIT ALIQUOD INCONVENIENS. An argument
drawn from what is inconvenient is good in law,
because the law will not permit any inconvenience.
Co.Litt. 66a, 258.
ARGUMENTUM AB INCONVENIENT! PLURI-
MUM VALET [EST VALIDUM] IN LEGE. An
argument drawn from inconvenience is of the
greatest weight [is forcible] in law. Co.Litt. 66a,
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ARIBANNUM
97a, 152b, 258b; Broom, Max. 184. If there be in
any deed or instrument equivocal expressions, and
great inconvenience must necessarily follow from
one construction, it is strong to show that such
construction is not according to the true intention
of the grantor; but where there is no equivocal
expression in the instrument, and the words used
admit only of one meaning, arguments of incon-
venience prove only want of foresight in the
grantor. 3 Madd. 540; 7 Taunt. 496.
ARIBANNUM. In feudal law. A fine for not
setting out to join the army in obedience to the
summons of the king.
ARIERBAN, or ARRIERE-BAN. An edict of
the ancient kings of France and Germany, com-
manding all their vassals, the noblesse, and the
vassals' vassals, to enter the army, or forfeit
their estates on refusal. Spelman. See, also,
Arrier Ban.
ARIMANNI. A medieval term for a class of
agricultural owners of small allodial farms, which
they cultivated in connection with larger farms
belonging to their lords, paying rent and service
for the latter, and being under the protection of
their superiors. Military tenants holding lands
from the emperor. Spelman.
ARISE. To spring up, originate, to come into
being or notice, to become operative, sensible,
visible, or audible; to present itself. Bergin v.
Temple, 111 Mont. 539, 111 P.2d 286, 289, 290, 133
A.L.R. 1115; Lane v. Travelers Ins. Co. of Hart-
ford, Conn., 230 Iowa 973, 299 N.W. 553, 555.
"Accrue" not synonymous; the latter term means to
result, to add, to acquire, to receive, to benefit, Rogues
v. Continental Casualty Co., 17 La.App. 465, 135 So. 51, 52.
A case "arises" under the Constitution or a law of the
United States, so as to be within the jurisdiction of a fed-
eral court, whenever its correct decision depends on the
construction of either. Cleveland, C., C. & St. L. Ry. Co.
v. Hirsch, C.C.A.Ohio, 204 F. 849, 851; Blease v. Safety
Transit Co., C.C.A.S.C., 50 F.2d 852, 854.
A cause of action or suit "arises", so as to start running
of limitation, when party has a right to apply to proper
tribunal for relief.  Washington Security Co. v. State, 9
Wash.2d 197, 114 P.2d 965, 967, 135 A.L.R. 1330 ; and it
arises at time when and place where act is unlawfully omit-
ted or committed. State ex rel. Birnamwood Oil Co. v.
Shaughnessy, 243 Wis. 306, 10 N.W.2d 292, 295.
ARISING OUT OF AND IN THE COURSE OF
OWN EMPLOYMENT. Workmen's Compensation
Acts provide for compensating an employee whose
injury is one "arising out of and in the course of
the employment." These words describe an in-
jury directly and naturally resulting in a risk
reasonably incident to the employment. Thomas
v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179
P. 372, 374, 6 A.L.R. 445; Trudenich v. Marshall,
D.C.Wash., 34 F.Supp. 486, 488. They mean that
there must be some causal connection between
the conditions under which the employee worked
and the injury which he received. Amicucci v.
Ford Motor Co., 308 Mich. 151, 13 N.W.2d 241.
The words "arising out of employment" refer to the
origin of the cause of the injury, while "course of em-
ployment" refer to the time, place, and circumstances un-
der which the injury occurred. Walker v. Hyde, 43 Idaho,
625, 253 P. 1104, 1105. See, further, Course; Watson v.
Pitcairn, Mo.App., 139 S.W.2d 552, 554; Ervin v. Industrial
Commission, 364 Ill. 56, 4 N.E.2d 22, 25.
ARISTOCRACY. A government in which a class
of men rules supreme; a form of government
which is lodged in a council composed of select
members or nobles, without a monarch, and ex-
clusive of the people.
A privileged class of the people; nobles and
dignitaries; people of wealth and station.
ARISTO-DEMOCRACY. A form of government
where the power is divided between the nobles
(or the more powerful) and the people.
ARLES. Earnest. Used in Yorkshire in the
phrase "Arles-penny." Cowell. In Scotland it has
the same signification. Bell.
ARM OF THE SEA. A portion of the sea project-
ing inland, in which the tide ebbs and flows. 5
Coke, 107. It is. considered as extending as far
into the interior of a country as the water of
fresh rivers is propelled backwards by the ingress
of the tide. Adams v. Pease, 2 Conn. 484; U. S.
v. Grush, 5 Mason, 290, Fed.Cas.No.15,268; Ex
parte Byers, D.C.Mich., 32 Fed. 404. See Fauces
Terre.
ARMA. Lat. Arms; weapons, offensive and de-
fensive; armor; arms or cognizances of families.
ARMA DARE. To dub or make a knight.
ARMA IN ARMATOS SUMERE JURA SINUNT.
The laws permit the taking up of arms against
armed persons. 2 Inst. 574.
ARMA MOLUTA. Sharp weapons that cut, in
contradistinction to such as are blunt, which only
break or bruise. Fleta, lib. 1, c. 33, par. 6.
ARMA REVERSATA. Reversed arms, a punish-
ment for a traitor or felon. Cowell.
ARMATA VIS. In the civil law. Armed force.
Dig. 43, 16, 3; Fleta, lib. 4, c. 4.
ARMED. Furnished or equipped with weapons
of offense or defense. People ex rel. Griffin v.
Hunt, 270 N.Y.S. 248, 254, 150 Misc. 163.
A vessel is "armed" when she is fitted with a full arma-
ment for fighting purposes. Murray v. The Charming
Betsy, 2 Cranch, 121, 2 L. Ed. 208.
ARMED FORCE. As used in statutes authoriz-
ing peace officers to summon an "armed force"
to aid them, this term may refer to a military
organization, but this is not necessarily so, and,
depending on the context, it may mean only a
posse comitatus (q. v.). Chapin v. Ferry, 28 P.
754, 756, 3 Wash. 386, 15 L.R.A. 116.
ARMED NEUTRALITY. An attitude of neutral-
ity between belligerents which the neutral state is
prepared to maintain by armed force if necessary.
ARMED PEACE. A situation in which two or
more nations, while actually at peace with each
other, are armed for possible or probable hostili-
ties.
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ARRAIGNS
ARMIGER. An armor-bearer; an esquire. A title
of dignity belonging to gentlemen authorized to
bear arms. Cowell. In its earlier meaning, a serv-
ant who carried the arms of a knight. A tenant by
scutage; a servant or valet; applied, also, to the
higher servants in convents. Spelman.
ARMING ONE'S SELF. Equipping one's self with
a weapon or weapons. Simmons v. State, 87 Tex.
Cr.R. 270, 220 S.W. 554.
ARMISCARA. An ancient mode of punishment,
which was to carry a saddle at the back as a
token of subjection. Spelman.
ARMISTICE. A suspending or cessation of hostili-
ties between belligerent nations or forces for a
considerable time. Dooley v. Johnson, 133 Cal.
App. 459, 24 P.2d 540.
The term cannot properly be applied to agreements be-
tween a government on one side and rioters, brigands, and
banditti on the other. O'Neill v. Central Leather Co., 87
N.J.L. 552, 94 A. 789, 790, L.R.A.1917A, 276.
An armistice differs from a mere "suspension of arms"
(q. v.) in that the latter is concluded for very brief periods
and for local military purposes onV, whereas an armistice
not only covers a longer period, 'but is agreed upon for
political purposes. It is said to be general if it relates to
the whole area of the war, and partial if it relates to only
a portion of that area. Partial armistices are sometimes
called truces (q. v.) but there is no hard and fast distinc-
tion.
ARMORIAL BEARINGS. In English law. A de-
vice depicted on the (now imaginary) shield of
one of the nobility, of which gentry is the lowest
degree. The criterion of nobility is the bearing
of arms, or armorial bearings, received from an-
cestry.
ARMORUM APPELLATIONE, NON SOLUM
SCUTA ET GLADII ET GALEZE, SED ET FUS-
TES ET LAPIDES CONTINENTUR. Under the
name of arms are included, not only shields and
swords and helmets, but also clubs and stones.
Co.Litt. 162.
ARMORY. A building where arms, ammunition,
and instruments of war are stored. Comp.Laws
1929, §§ 692, 3395. Grosse Ile v. Saunders, 262
Mich. 451, 247 N.W. 912, 913.
ARMS. Anything that a man wears for his de-
fense, or takes in his hands, or uses in his anger,
to cast at or strike at another. Co.Litt. 161b,
162a; State v. Buzzard, 4 Ark. 18.
Arms, or coat of arms, signifies insignia, i. e. ensigns
of honor, such as were formerly assumed by soldiers of
fortune, and painted on their shields to distinguish them;
or nearly the same as armorial bearings (q. v.).
ARMS, LAW OF. That law which gives precepts
and rules concerning war; how to make and ob-
serve leagues and truce, to punish offenders in
the camp, and such like. Cowell; Blount. Now
more commonly called the "law of war." See,
also, War.
ARMY. The armed forces of a nation intended
for military service on land.
An "army" is a body of men whose business is war,
while the "militia" is a body of men composed of citizens
occupied temporarily in the pursuit of civil life, but organ-
ized by discipline and drill, and called into the field for
temporary military service when the exigencies of the
country require it. And see Brown v. Soldiers' Bonus
Board, 44 R.I. 483, 116 A. 280, 281.
—Regular army. The permanent military estab-
lishment, which is maintained both in peace and
war according to law. 10 U.S.C.A. § 3; State v.
Moorhead, 102 Neb. 276, 167 N.W. 70, 71.
AROMATARIUS. A word formerly used for a
grocer. 1 Vent. 142.
AROUND. In the vicinity of. Hawkins v. First
National Bank, Tex.Civ.App., 175 S.W. 163, 164.
Thus, sheep branded "0" on the hip or side may be
within a mortgage covering sheep described as branded
"0" around the hip bone.
ARPEN, Arpent, Arpennus. A measure of land
of uncertain quantity mentioned in Domesday and
other old books; by some called an "acre," by
others "half an acre," and by others a "furlong."
Spelman; Cowell; Blount. Quoted in McMillan
v. Aiken, 205 Ala. 35, 88 So. 135, 143.
A French measure of land, containing one hundred
square perches, of eighteen feet each, or about an acre.
But the quantity varied in different provinces. Spelman.
An "arpent" is a land measure varying in dimension from
.84 of an acre to 1404 acres and to 1.28 acres, accordingly
as the arpent meant is an arpent de Paris, an arpent corn-
mun, or an arpent d'ordonnance. Troll v. City of St.
Louis, 257 Mo. 626, 168 S.W. 167, 171. In Louisiana, the
terms "arpent" and "acre" are sometimes used inter-
changeably; but there is a considerable difference, the ar-
pent being the square of 192 feet and the acre of 209 and a
fraction. Randolph v. Sentilles, 110 La. 419, 34 So. 587.
ARPENTATOR. A measurer or surveyor of land.
Cowell; Spelman.
ARRA. In the civil law. Earnest; earnest-mon-
ey; evidence of a completed bargain. Used of a
contract of marriage, as well as any other.
Spelled, also, Arrha, Arrhce, Arrce, Calvin. Cf.
Arles.
ARRAIGN. In criminal practice. To bring a
prisoner to the bar of the court to answer the
matter charged upon him in the indictment. Ex
parte Jeffcoat, 109 Fla. 207, 146 So. 827, 828. The
arraignment (q. v.) of a prisoner consists of call-
ing upon him by name, and reading to him the
indictment, (in the English tongue,) and demand-
ing of him whether he be guilty or not guilty, and
entering his plea. State v. Voelpel, 213 Iowa 702,
239 N.W. 677, 679.
In old English law. To order, or set in order;
to conduct in an orderly manner; to prepare for
trial. To arraign an assise was to cause the ten-
ant to be called to make the plaint, and to set
the cause in such order as the tenant might be
enforced to answer thereunto. Litt. § 442; Co.
Litt. 262b.
ARRAIGNMENT. See Arraign.
ARRAIGNS, CLERK OF. In English law. An
assistant to the clerk of assise.
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ARRAMEUR
ARRAMEUR. In old French law. An officer em-
ployed to superintend the loading of vessels, and
the safe stowage of the cargo. 1 Pet.Adm.Append.
XV.
ARRANGEMENT. A setting in order. 1 El. &
Bl. 540. Plan for corporate reorganization propos-
ing to effect a composition or extension of time
with reference to corporation's unsecured debts.
John Hancock Mut. Life Ins. Co. v. Casey, C.C.A.
Mass., 141 F.2d 104, 107.
ARRANGEMENT, DEED OF. A term used in
England to express an assignment for the benefit
of creditors.
ARRAS. In Spanish law. The donation which
the husband makes to his wife, by reason or on
account of marriage, and in consideration of the
dote, or portion, which he receives from her. Mil-
ler v. Dunn, 62 Mo. 219. The property contributed
by the husband ad sustinenda onera matrimonii
(for bearing the expenses).
ARRAY. The whole body of jurors summoned to
attend a court, as they are arrayed or arranged on
the panel. Dane, Abr. Index; 1 Chit.Crim.Law,
536; Com.Dig. "Challenge," B. Durrah v. State, 44
Miss. 789. A ranking, or setting forth in order;
the order in which jurors' names are ranked in the
panel containing them. Co.Litt. 156a; 3 Bl.Comm.
359.
ARRAYER. An English military officer in the
early part of the fifteenth century. His duties
were similar to those of the modern Lord Lieuten-
ant of a county.
ARREARS, or ARREARAGES. Money unpaid at
the due time, as rent behind; the remainder due
after payment of a part of an account; money in
the hands of an accounting party. Board of Ed-
ucation of Glen Ellyn Tp. High School Dist. No. 87
v. Boger, 291 Ill. 191, 125 N.E. 768, 770. Indebted-
ness. State ex rel. City of South Euclid v. Zan-
gerle, 145 Ohio St. 433, 62 N.E.2d 160, 162.
In arrear (arrears). Overdue and unpaid. Hollingsworth
v. Willis, 64 Miss. 157, 8 So. 170. Behind in the payment of
that which is due. Grand Court of Texas Independent
Order of Calanthe v. Johns, Tex.Civ.App., 181 S.W. 869,
870.
ARRECT. To accuse or charge with an offense.
Arrectati, accused or suspected persons.
ARRENDAMIENTO. In Spanish law. The con-
tract of letting and hiring an estate or land,
(heredad.) White, Recop. b. 2, tit. 14, c. 1.
ARRENT. In old English law. To let or demise
at a fixed rent. Particularly used with reference
to the public domain or crown lands; as where a
license was granted to inclose land in a forest
with a low hedge and a ditch, under a yearly rent,
or where an encroachment, originally a purpres-
ture, was allowed to remain on the fixing and pay-
ment of a suitable compensation to the public for
its maintenance.
ARREST. To deprive a person of his liberty by
legal authority. Taking, under real or assumed
authority, custody of another for the purpose .of
holding or detaining him to answer a criminal
charge or civil demand. Ex parte Sherwood, 29
Tex.App. 334, 15 S.W. 812. Physical seizure of
person by arresting officer or submission to offi-
cer's authority and control is necessary to con-
stitute an "arrest." Thompson v. Boston Pub. Co.,
285 Mass. 344, 189 N.E. 210, 213. It is a restraints
however slight, on another's liberty to come and
go. Turney v. Rhodes, 42 Ga.App. 104, 155 S.E.
112. It is the taking, seizing or detaining the
person of another, touching or putting hands
upon him in the execution of process, or any act
indicating an intention to arrest. U. S. v. Benner,
Bald. 234, 239, Fed.Cas.No.14,568; State v. District
Court of Eighth Judicial Dist. in and for Cascade
County, 70 Mont. 378, 225 P. 1000, 1001; Hoppes v.
State, 105 P.2d 433, 439, 70 Okl.Cr. 179.
As used in Bankruptcy Act, § 9 (11 USCA § 27), arrest in-
cludes "imprisonment." Ex parte Harrison, D.C.Mass.,
272 F. 543, 544.
One of the means which the law gives the creditor to
secure the person of his debtor while the suit is pending,
or to compel him to give security for his appearance after
judgment. La.Code Pr c. art. 210.
As ordinarily used, tAe terms arrest and attachment coin-
cide in meaning to some extent; though in strictness, as
a distinction, an arrest may be said to be the act resulting
from the service of an attachment. And in the more ex-
tended sense which is sometimes given to attachment, in-
cluding the act of taking, it would seem to differ from ar-
rest in that it is more peculiarly applicable to a taking of
property, while arrest is more commonly used in speaking
of persons.
Arrest is also applied in some instances to a seizure and,
detention of personal chattels, especially of ships and ves-
sels; thus, in admiralty actions a ship or cargo is arrested
when the marshal has served the writ in an action in rem.
Pelham v. Rose, 9 Wall. 103, 19 L. Ed. 602.
Civil Practice
The apprehension of a person by virtue of a
lawful authority to answer the demand against
him in a civil action. Gentry v. Griffith, 27 Tex.
462.
Criminal Cases
The apprehending or detaining of the person in
order to be forthcoming to answer an alleged or
suspected crime. Ex parte Sherwood, 29 Tex.App.
334, 15 S.W. 812.
The word arrest is said to be more properly used in civil
cases, and apprehension in criminal. Thus, a man is ar-
rested under a capias ad respondendum, and apprehended
under a warrant charging him with larceny.
Malicious Arrest
An arrest made willfully and without probable
cause, but in the course of a regular proceeding.
Parol Arrest
One ordered by a judge or magistrate from the
bench, without written complaint or other pro-
ceedings, of a person who is present before him,
and which is executed on the spot; as in case of
breach of the peace in open court.
Rearrest
Right of an officer to take without warrant one
forcibly freeing himself after arrest. Gross v.
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ARRIAGE
State, 186 Ind. 581, 117 N.E. 562, 1 A.L.R. 1151, or
escaping in any manner, Hefler v. Hunt, 120 Me.
10, 112 A. 675, or violating parole, Massey v. Cun-
ningham, 169 Ark. 410, 275 S.W. 737, or failing
to respond to bond for appearance, Porter v. Gar-
mony, 148 Ga. 261, 96 S.E. 426.
Second Arrest
The "second arrest" forbidden after discharge
on habeas corpus means an imprisonment based
on the same information and not under a new
information followed by a lawful warrant. State
v. Riley, 109 Minn. 437, 124 N.W. 13. See, also,
Stair v. Heska Amone Congregation, 128 Tenn.
190, 159 S.W. 840, 841.
Warrant of Arrest
A written order issued and signed by a magis-
trate, directed to a peace officer or some other
person specially named, and commanding him to
arrest the body of a person named in it, who is
accused of an offense. Brown v. State, 109 Ala.
70, 20 So. 103.
ARREST OF INQUEST. Pleading in arrest of
taking the inquest upon a former issue, and show-
ing cause why an inquest should not be taken.
ARREST OF JUDGMENT. The act of staying a
judgment, or refusing .to render judgment in -an
action at law and in criminal cases, after ver-
dict, for some matter intrinsic appearing on
the face of the record, which. would render the
judgment, if -given, erroneous or reversible. 3 Bl.
Comm. 393; 3 Steph.Comm. 628; 2 Tidd, Pr. 918;
Speer v. Pierce, 18 Tenn.App. 351, 77 S.W.2d 77,
78; State v. Ferguson, 165 Tenn. 61, 52 S.W.2d
140.
It is the fact that a motion in arrest of judgment is
based on some defect on the face of the record or pleadings
which aids in distinguishing it from a motion for a new
trial. Maddox Coffee Co. v. McHan, 22 Ga.App. 198, 95 S.
E. 736. It differs also from a motion to set aside a judg-
ment, in that a motion in arrest of judgment must be
made during the term when the judgment was rendered.
Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E.
648, 650. A motion in arrest of judgment is practically a
demurrer, People v. Cordosco, 77 Cal.App. 780, 246 P. 461,
462, and has been abolished in some jurisdictions. State
v. Sharp, Mo.Sup., 300 S.W. 501.
ARRESTANDIS BONIS NE DISSIPENTUR. In
old English law. A writ which lay for a person
whose cattle or goods were taken by another, who
during a contest was likely to make away with
them, and who had not the ability to render satis-
faction. Reg.Orig. 126.
ARRESTANDO IPSUM QUI PECUNIAM RE-
CEPIT. In old English law. A writ which issued
for apprehending a person who had taken the
king's prest money to serve in the wars, and then
hid himself in order to avoid going.
ARRESTATIO. In old English law. An arrest
(q. v.).
ARRESTEE. In Scotch law. The person in
whose hands, the movables of another, or a debt
due to another, are arrested by the creditor of
the latter by the process of arrestment. 2 Kames,
Eq. 173, 175.
If, in contempt of the arrestment, he make payment of
the sum or deliver the goods arrested to the common debt-
or, he is not only liable criminally for breach of the ar-
restment, but he must pay the debt again to the arrester ;
Erskine, Inst. 3, 6, 6.
ARRESTER. In Scotch law. One who sues out
and obtains an arrestment of his debtor's goods
or movable obligations. Erskine, Inst. 3. 6. 1.
ARRESTMENT. In Scotch law. Securing a crim-
inal's person till trial, or that of a debtor till he
give security judicio sisti. The order of a judge,
by which he who is debtor in a movable obligation
to the arrester's debtor is prohibited to make pay:
ment or delivery till the debt due to the arrester
be paid or secured. Erskine, Inst. 3. 6. 1; 1. 2. 12.
ARRESTMENT JURISDICTIONIS FUNDAND1E
CAUSA. In Scotch law. A process to bring a
foreigner within the jurisdiction of the courts of
Scotland. The warrant attaches a foreigner's
goods within the jurisdiction, and these will not
be released unless caution or security be given.
ARRESTO FACTO SUPER BONIS MERCATOR-
UM ALIENIGENORUM. In old English law. A
writ against the goods o f aliens found within this
kingdom, in recompense of goods taken from a
denizen in a 'foreign country, after denial of resti-
tution. Reg.Orig. 129. The ancient civilians called
it "clarigatio," but by the moderns it is termed
"reprisalia."
ARRET. Fr. A judgment, sentence, or decree of
a court of competent jurisdiction.
The term is derived from the French law, and
is used in Canada and Louisiana.
Saisie arrdt is an attachment of property in the
hands of a third person. Code Pr.La. art. 209;
2 Low.Can. 77; 5 Low.Can. 198, 218. See "Saisie."
ARRETTED. Convened before a judge and
charged with a crime.
Ad rectum malefactoreirn is, according to Brac-
ton, to have a malefactor forthcoming to be put
on his trial.
Imputed or laid to one's charge; as, no folly
may be arretted to one under age. Bracton, 1. 3,
tr. 2, c. 10; Cunningham, Diet.; Cowell.
ARRHABO. In the civil law. Earnest; money
given to bind a bargain. Calvin.
ARRILE. In the civil law. Money or other valu-
able things given by the buyer to the seller, for
the purpose of evidencing the contract; earnest.
See Arra; Pot-de-vin.
Arrhce sponsolitice were the earnest or present
given by one betrothed to the other at the be-
trothal.
ARRIAGE AND CARRIAGE. In English and.
Scotch law. Indefinite services formerly demand-
able from tenants, but prohibited by statute, (20
Geo. II, c. 50, §§ 21, 22.) Holthouse; Ersk.Inst. 2,
6, 42.
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ARRIER
ARRIER BAN. In feudal law. A second sum-
mons to join the lord, addressed to those who had
neglected the first. A summons of the inferiors
or vassals of the lord. Spelman, Gloss. See,
also, Arierban.
ARRIERE FIEF, or FEE. In feudal law. A fief
or fee dependent on a superior one; an inferior
fief granted by a vassal of the king, out of the
fief held by him. Montesq. Esprit des Lois, liv.
31, cc. 26, 32.
ARRIERE VASSAL. In feudal law. The vassal
of a vassal.
ARRIVAL. In marine insurance, arrival of a ves-
sel means an arrival for purposes of business, re-
quiring an entry and clearance and stay at the
port so long as to require some of the acts con-
nected with business, and not merely touching at
a port for advices, or to ascertain the state of the
market, or being driven in by an adverse wind
and sailing again as soon as it changes. F. S.
Royster Guano Co. v. U. S., C.C.A.Va., 18 F.2d 469,
470.
"A vessel arrives at a port of discharge when she comes,
or is brought, to a place where it is intended to discharge
her, and where is the usual and customary place of dis-
charge. When a vessel is insured to one or two ports, and
sails for one, the risk terminates on her arrival there. If a
vessel is insured to a particular port of discharge, and is
destined to discharge cargo successively at two different
wharves, docks, or places, within that port, each being a
distinct place for the delivery of cargo, the risk ends when
she has been moored twenty-four hours in safety at the
first place. But if she is destined to one or more places for
the delivery of cargo, and delivery or discharge of a por-
tion of her cargo is necessary, not by reason of her hav-
ing reached any destined place of delivery, but as a neces-
sary and usual nautical measure, to enable her to reach
such usual and destined place of delivery, she cannot prop-
erly be considered as having arrived at the usual and custo-
mary place of discharge, when she is at anchor for the
purpose only of using such means as will better enable her
to reach it. If she cannot get to the destined and usual
place of discharge in the port because she is too deep, and
must be lightered to get there, and, to aid in prosecuting
the voyage, cargo is thrown overboard or put into
lighters, such discharge does not make that the place of
arrival; it is only a stopping-place in the voyage. When
the vessel is insured to a particular port of discharge, ar-
rival within the limits of the harbor does not terminate
the risk, if the place is not one where vessels are dis-
charged and voyages completed. The policy covers the
vessel through the port navigation, as well as on the open
sea, until she reaches the destined place." Simpson v. In-
surance Co., Holmes, 137, Fed.Cas.No.12,886.
"Arrival of ship," within meaning of bills of lading re-
quiring claims to be filed, must be construed, where MIS-
delivery is charged, as meaning date when cargo is dis-
charged or offe r ed for delivery. The Cardiganshire, D.C.
Cal., 9 F.2d 416, 420. "Arrival" within the immigration
laws means compliance with the requirements entitling an
alien to entry. See 8 USCA §§ 106, 380. In re Kempson, D.
C.Wash., 14 F.2d 668, 669.
ARRIVE. To come to a particular place; to reach
a particular or certain place. Thompson v. U. S.,
1 Brock. 411, Fed.Cas.No.13,985; 8 B. & C. 119.
The words "arrive" and "enter" are not always synony-
mous; there certainly may be an arrival without an actual
entry or attempt to enter. United States v. Open Boat, 5
Mason, 120, 132, Fed.Cas.No.15,967. And where a vessel
from a foreign port, laden with liquors, anchored within
four leagues of the coast, and the master without a permit
therefor allowed part of the cargo to be taken away, with
the intention of so disposing of the entire cargo, the vessel
had "arrived" within the meaning of Tariff Act 1922, §
586 (19 USCA § 488). The Cherie, C.C.A.Me., 13 F.2d 992,
993.
ARROGATION. In the civil law. The adoption
of a person who was of full age or sui juris. 1
Browne, Civil & Adm.Law, 119; Dig. 1, 7, 5; Inst.
1, 11, 3. Reinders v. Koppelmann, 68 Mo. 497, 30
Am.Rep. 802.
ARRONDISSEMENT. In France, one of the sub-
divisions of a department.
ARSZE ET PENSAT1E. Burnt and weighed. A
term formerly applied to money tested or assayed
by fire and by weighing.
ARSENALS. Store-houses for arms; dock-yards,
magazines, and other military stores.
ARSER IN LE MAIN. Fr. Burning in the hand.
The punishment by burning or branding the left
thumb of lay offenders who claimed and were al-
lowed the benefit of clergy, so as to distinguish
them in case they made a second claim of clergy.
5 Coke, 51; 4 Bl.Comm. 367; Termes de la Ley.
ARSON. At common law, the malicious burning
of the house or outhouse of another. 4 Bla.Com.
220; Thacker v. Commonwealth, 219 Ky. 789, 294
S.W. 491, 492; State v. Berry, 188 La. 612, 177 So.
684, 686; Commonwealth v. Cooper, 264 Mass.
378, 162 N.E. 733, 734.
At common law burning buildings other than dwelling
houses is not arson. Sawyer v. State, 100 Fla. 1603, 132
So. 188, 193. Part of building ignited sufficient to establish
corpus delicti. State v. Caliendo, 4 A.2d 837, 840, 136 Me.
514.
At common law it must be the house of another. 1 Bish.
Cr.Law, § 389; State v. Beckwith, Me., 198 A. 739, 742. But
it is now an offense to burn one's own house under the
statutes of New Hampshire, Arkansas, California, and oth-
er states.  State v. Blumenthal, 136 Ark. 532, 203 S.W.
36, 37, L.R.A.1918E, 482.
Whether "house" or "dwelling house" be used in statute
defining the crime may be of importance in determining
whether occupancy is or is not an element. 1 Hale, P.C.
566, 567; Commonwealth v. Barney, 64 Mass. (10 Cush.)
478. Some states have expressly eliminated occupancy as
an element, State v. Snover, 101 N.J.Law, 543, 126 A. 850 ;
P.L. 1919, p. 257; while others have made it a distinction
between degrees of the crime, People v. Abrams, 174 Cal.
172, 162 P. 395, 396.
In several states, this crime is divided into arson in the
first, second, and third degrees, the first degree including
the burning of an inhabited dwelling-house in the night-
time; the second degree, the burning (at night) of a build-
ing other than a dwelling-house, but so situated with ref-
erence to a dwelling-house as to endanger it; the third
degree, the burning of any building or structure not the
subject of arson in the first or second degree, or the burn-
ing of property, his own or another's with intent to de-
fraud or prejudice an insurer thereof. State v. Jessup, 42
Kan. 422, 22 P. 627.
ARSURA. The trial of money by heating it after
it was coined. The loss of weight occasioned by
this process. A pound was said to burn so many
pence (tot ardere denarios) as it lost by the fire.
Spelman. The term is now obsolete.
ART. Systematic application of knowledge or-
skill in effecting a desired result; also an em-
ployment, occupation or business requiring such
knowledge or skill; a craft; as industrial arts..
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ARTICLES
Jones Bros. Co. v. Underkoffler, D.C.Pa., 16 F.Supp.
729, 730; Miller v. State, 9 Okl.Cr. 255, 131 P. 717,.
718, L.R.A.1915A, 1088. A principle put in practice
and applied to some art, machine, manufacture,
or composition of matter. Earle v. Sawyer, 4
Mason, 1, Fed.Cas.No.4,247.
In the law of patents, this term means a useful
art or manufacture which is beneficial and which
is described with exactness in its mode of opera-
tion. Such an art can be protected only in the
mode and to the extent thus described. Jacobs
v. Baker, 7 Wall. 297, 19 L.Ed. 200. It is synonym-
ous with process or method when used to produce
a useful result, and may be either a force applied,
a mode of application, or the specific treatment of
a specific object, and must produce physical ef-
fects. Emmett v. Metals Processing Corporation,
C.C.A.Ariz., 118 F.2d 796, 798.
—Prior Art. In patent law, something that a man
skilled in the art may by diligence discover. Davis-
Bournonville Co. v. Alexander Milburn Co., C.C.A.
N.Y., 1 F.2d 227, 231.
In seduction cases, "art" means the skillful and
systematic arrangement of means for the attain-
ment of a desired end. Hayes v. State, 19 Ala.
App. 241, 96 So. 647.
ART, WORDS OF. Words used in a technical
sense; words scientifically fit to carry the sense
assigned them.
ART AND PART. In Scotch law. The offense
committed by one who aids and assists the com-
mission of a crime, but who i$ not the principal or
chief actor in its actual commission. An acces-
sory. A principal in the second degree. Paters.
Comp.
ART MUSEUM. A building containing works of
art. In re Everson's Will, 52 N.Y.S.2d 395, 399,
268 App.Div. 425.
ARTESIAN BASIN. A body of water more or
less compact, moving through soils with more or
less resistance. Justesen v. Olsen, 40 P.2d 802,
810, 86 Utah, 158.
ARTESIAN WELL. A well bored through im-
permeable strata into a subterranean body of
water which, being under pressure, rises naturally
to the surface. Loosely, any deep bored well.
6 C.J.S. p. 773.
ARTHEL, ARDHEL, or ARDDELIO. To avouch;
as if a man were taken with stolen goods in his
possession he was allowed a lawful arthel,  e.,
vouchee, to clear him of the felony; but provision
was made against it by 28 Hen. VIII, c. 6. Blount,
ARTICLE. A separate and distinct part of an in-
strument or writing comprising two or more par-
ticulars; one of several things presented as con-
nected or forming a whole. Carter v. Railroad
Co., 126 N.C. 437, 36 S.E. 14. A particular object
or substance, a material thing or a class of things.
People v. Epstean, 170 N.Y.S. 68, 73, 102 Misc. 476.
Material or tangible object. Gayer v. Whelan, 59
Cal.App.2d 255, 138 P.2d 763, 768. "Thing" of
value. Gayer v. Whelan, 59 Cal.App.2d 255, 138
P.2d 763, 768.
In English ecclesiastical law. A complaint ex-
hibited in the ecclesiastical court by way of libel.
The different parts of a libel, responsive allega-
tion, or counter allegation in the ecclesiastical
courts. 3 Bl.Comm. 109.
In Scotch practice. A subject or matter; com-
petent matter. "Article of dittay." 1 Broun, 62.
A "point of dittay." 1 Swint. 128, 129.
ARTICLED CLERK. In English law. A clerk
bound to serve in the office of a solicitor in con-
sideration of being instructed in the profession.
This is the general acceptation of the term; but
it is said to be equally applicable to other trades
and professions. Reg. v. Reeve, 4 Q.B. 212.
ARTICLES. 1. A connected series of proposi-
tions; a system of rules. The subdivisions of a
document, code, book, etc. A specification of dis-
tinct matters agreed upon or established by au-
thority or requiring judicial action. ,
2. A statute; as having its provisions articu-
lately expressed under distinct heads. Several of
the ancient English statutes were called "articles,"
(articuli.)
3. A system of .rules established by legal au-
thority; as articles of war, articles of the navy,
articles of faith. (See infra.)
4. A contractual document executed between
parties, containing stipulations or terms of agree-
ment; as articles of agreement, articles of part-
nership,
5. • A naval term meaning employment contract.
South Chicago Coal & Dock Co. v. Bassett, C.C.A.
Ill., 104 F.2d 522, 526.
.6. In chancery practice. A formal written
statement of objections filed by a party, after
depositions have been taken, showing ground for
discrediting the witnesses.
7. In ecclesiastical law. A complaint in the
form of a libel exhibited to an ecclesiastical court.
See Article.
ARTICLES APPROBATORY, In Scotch law. That
part of the proceedings which corresponds to the
answer to the charge in an English bill in chan-
cery. Paters. Comp.
ARTICLES IMPROBATORY. In Scotch law.
Articulate averments setting forth the facts relied
upon. Bell. That part of the proceedings which
corresponds to the charge in an English bill in
chancery to set aside a deed. Paters. Comp. The
answer is called "articles approbatory."
ARTICLES, LORDS OF. A committee of the
Scottish parliament, which, in the mode of its elec-
tion, and by the nature of its powers, was calcu-
lated to increase the influence of the' crown, and
to confer upon it a power equivalent to that of a
negative before debate. This system appeared in-
consistent with the freedom of parliament, and at
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ARTICLES
the revolution the convention of estates declared
it a grievance, and accordingly it was suppressed
by Act 1690, c. 3. Wharton.
ARTICLES OF AGREEMENT. A written memo-
randum of the terms of an agreement.
It is a common practice for persons to enter into articles
of agreement, preparatory to the execution of a formal
deed, whereby it is stipulated that one of the parties shall
convey to the other certain lands, or release his right to
them, or execute some other disposition of them.
When persons form voluntary associations for religious,
literary, social, or other purposes, and adopt rules by
which to regulate their conduct and measure their rights,
by the provisions of which members may be admitted and
expelled, such rules are articles of agreement, to which all
who have become members are parties, and by which they
must be governed in their relations to the associations.
Brown v. Harris 'County Medical Soc., Tex.Civ.App., 19-1 S.
W. 1179, 1180.
ARTICLES OF ASSOCIATION, OR OF INCOR-
PORATION. Articles subscribed by the members
of a joint-stock company or corporation organized
under a general law, and which create the corpo-
rate union between them. Such articles are in
the nature of a partnership agreement, and com-
monly specify the form of organization, amount
of capital, kind of business to be pursued, location
of the company, etc. Articles of association are
to be distinguished from a charter, in that the lat-
ter is a grant of power from the sovereign or the
legislature.
ARTICLES OF CONFEDERATION. The name of
the instrument embodying the compact made be-
tween the thirteen original states of the Union,
before the adoption of the present constitution.
ARTICLES OF FAITH. In English law. The
system of faith of the Church of England, more
commonly known as the "Thirty-Nine Articles."
ARTICLES OF IMPEACHMENT. A formal writ-
ten allegation of the causes for impeachment;
answering the same office as an indictment in an
ordinary criminal proceeding.
ARTICLES OF INCORPORATION. The instru-
ment by which a private corporation is formed and
organized under general corporation laws. People
v. Golden Gate Lodge, 128 Cal. 257, 60 P. 865. See
Articles of Association.
ARTICLES OF PARTNERSHIP. A written agree-
ment by which the parties enter into a copartner-
ship upon the terms and conditions therein stipu-
lated.
ARTICLES OF RELIGION. In English ecclesi-
astical law. Commonly called the "Thirty-Nine
Articles ;" a body of divinity drawn up by the con-
vocation in 1562, and confirmed by James I.
ARTICLES OF ROUP. In Scotch law. The terms
and conditions under which property is sold at
auction.
ARTICLES OF SET. In Scotch law. An agree-
ment for a lease. Paters. Comp.
ARTICLES OF THE CLERGY. The title of a stat-
ute passed in the ninth year of Edward II. for
the purpose of adjusting and settling the great
questions of cognizance then existing between the
ecclesiastical and temporal courts. 2 Reeve, Hist.
Eng.Law, 291-296.
ARTICLES OF THE NAVY. A system of rules
prescribed by act of parliament for the govern-
ment of the English navy; also, in the United
States, there are articles for the government of
the navy.
ARTICLES OF THE PEACE. A complaint made
or exhibited to a court by a person who makes
oath that he is in fear of death or bodily harm
from some one who has threatened or attempted
to do him injury. The court may thereupon order
the person complained of to find sureties for the
peace, and, in default, may commit him to prison.
4 Bl.Comm. 255.
ARTICLES OF UNION, In English law. Articles
agreed to, A. D. 1707, by the parliaments of Eng-
land and Scotland, for the union of the two king-
doms. They were twenty-five in number. 1 BL
Comm. 96.
ARTICLES OF WAR. Codes framed for the gov-
ernment of a nation's army or navy.
ARTICULATE ADJUDICATION, In Scotch law.
Where the creditor holds several distinct debts, a
separate adjudication for each claim is thus called.
ARTICULATED PLEADING. The stating in sep-
arate paragraphs, separately numbered, of each
material fact of the petition. Newspaper Feature
Service v. Southern Pub. Co., 140 La. 702, 73 So.
777.
ARTICULATELY. Article by article; by distinct
clauses or articles; by separate propositions.
ARTICULI. Lat. Articles; items or heads. A
term applied to some old English statutes, and
occasionally to treatises.
ARTICULI CLERI. "Articles of the clergy" (q.
v.). See Circumspecte Agatis,
ARTICULI DE MONETA. Articles concerning
money, or the currency. The title of a statute
passed in the twentieth year of Edward I. 2
Reeve, Hist.Eng.Law, 228; Crabb, Eng.Law (Amer.
Ed.) 167.
ARTICULI MAGN1E CHARTAE. The preliminary
articles, forty-nine in number, upon which the
Magna Charta was founded.
ARTICULI SUPER CHARTAS. Articles upon the
charters. The title of a statute passed in the
twenty-eighth year of Edward I. st. 3, confirming
or enlarging many particulars in Magna Charta,
and the Charta de Foresta, and appointing a
method for enforcing the observance of them, and
for the punishment of offenders. 2 Reeve, Hist.
Eng.Law, 103, 233.
ARTICULO MORTIS. (Or more commonly in
articulo mortis.) At the point of death; in the
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AS
article of death, which means at the moment of
death; in the last struggle or agony. Succession
of Villa, 132 La. 714, 61 So. 765, 770.
ARTIFICE. An ingenius contrivance or device of
some kind, and, when used in a bad sense, it cor-
responds with trick or fraud. United States v.
Corlin, D.C.Cal., 44 F.Supp. 940, 943. It implies
craftiness and deceit, and imports some element
of moral obliquity. Davis v. Boston Elevated Ry.
Co., 235 Mass. 482, 126 N.E. 841, 845; Finch v.
Gibson, 140 Tenn. 134, 203 S.W. 759, 761.
A representation contrary to a well-known fact, such as
a representation that pregnancy will not result from natu-
ral sexual intercourse, will not constitute artifice, decep-
tion, or promises.
ARTIFICER. One who buys goods in order to re-
duce them, by his own art or industry, into other
forms, and then to sell them. Lansdale v. Bra-
shear, 3 T.B.Mon. (Ky.) 335.
One who is actually and personally engaged or
employed to do work of a mechanical or physical
character, not including one who takes contracts
for labor to be performed by others. Ingram v.
Barnes, 7 El. & Bl. 135; Chawner v. Cummings,
8 Q.B. 321.
One who is master of his art, and whose em-
ployment consists chiefly in manual labor. Whar-
ton; Cunningham.
ARTIFICIAL. Is in opposition to the word "nat-
ural". California Casualty Indemnity Exchange
v. Industrial Accident Commission of California,
13 Ca1.2d 529, 90 P.2d 289; Created by art, or by
law; existing only by force of or in contempla-
tion of law.
ARTIFICIAL FORCE. In patent law. A natural
force so transformed in character or energies by
human power as to possess new capabilities of ac-
tion; this transformation of a natural force into
a force practically new involves a true inventive
act. Wall v. Leck, 60 Fed. 555, 13 C.C.A. 630.
ARTIFICIAL MEMBER OF BODY. A substitute
for, and not a mere aid to, a natural part, organ,
limb, or other separable part of body. Califor-
nia Casualty Indemnity Exchange v. Industrial
Accident Commission, Cal.App., 82 P.2d 1115, 1116.
ARTIFICIAL PERSONS. Persons created and
devised by human laws for the purposes of socie-
ty and government, as distinguished from natural
persons. Corporations are examples of artificial
persons. 1 Bl.Comm. 123. Chapman v. Brewer,
43 Neb. 890, 62 N.W. 320, 47 Am.St.Rep. 779.
ARTIFICIAL PRESUMPTIONS. Also called "le-
gal presumptions;" those which derive their force
and effect from the law, rather than their nat-
ural tendency to produce belief. 3 Starkie, Ev.
1235. Gulick v. Loder, 13 N.J.Law, 72, 23 Am.Dec.
711.
ARTIFICIAL SUCCESSION. The succession be-
tween predecessors and successors in a corpora-
tion aggregate or sole. Thomas v. Dakin, 22
Wend. (N.Y.) 100.
Black's Law Dictionary Revised 4th Ed.--10
ARTIFICIAL WATER COURSE. See Water
Course.
ARTIFICIALLY. Technically; scientifically; us-
ing terms of art. A will or contract is described
as "artificially" drawn if it is couched in apt and
technical phrases and exhibits a scientific ar-
rangement.
ARTIFICIALLY DEVELOPED WATER. "Artifi-
cially developed water," to which one may ac-
quire right superior to adjudicated rights of
earlier appropriators of natural waters of stream
into which he turns it, is water produced and con-
tributed by him, which would not have reached
stream if left to flow in accordance with natural
laws. C.L. § 1766. In re Nix, 45 P.2d 176, 178, 96
Colo. 540.
ARTISAN. One skilled in some kind of mechani-
cal craft or art; a skilled mechanic. O'Clair v.
Hale, 25 Misc.Rep. 31; Warner Memorial Universi-
ty v. Ritenour, Tex.Civ.App., 56 S.W.2d 236, 237.
As used in lien statutes, the term includes the architect,
Kansas City Southern Ry. Co. v. Wallace, 38 Oki. 233, 132
P. 908, 911, 46 L.R.A.,N.S., 112, but not a subcontractor,
Huffman v. McDonald, Tex.Civ.App., 261 S.W. 146, 147.
An optometrist is not an "artisan." Swanz v. Clark, 71
Mont. 385, 229 P. 1108.
ARUBA. An old English law term, signifying a
day's work in plowing.
ARVIL–SUPPER. A feast or entertainment made
at a funeral in the north of England; arvil bread
is bread delivered to the poor at funeral solemni-
ties, and arvil, arval, or arfal, the burial or funer-
al rites. Cowell.
AS or A/S or A/s. Account sales; also after
sight, at sight.
AS. Lat. In the Roman and civil law. A pound
weight; and a coin originally weighing a pound,
(called also "libra") divided into twelve parts,
called "uncice,"
The parts were reckoned (as may be seen in the law,
Servum de hceredibus, Inst. lib. xiii. Pandect) as follows :
uncia, 1 ounce ; sextans, 2 ounces ; triens, 3 ounces; quad-
rans, 4 ounces ; quincunx, 5 ounces; semis, 6 ounces;
septunx, 7 ounces; bes, 8 ounces; dodrans, 9 ounces ; dex-
tans, 10 ounces ; deunx, 11 ounces.
Any integral sum, subject to division in certain
proportions.
Frequently applied in the civil law to inheritances ; the
whole inheritance being termed "as," and its several pro-
portionate parts "sextans," "quadrans," etc. Burrill.
The term "as," and the multiples of its uncice,
were also used to denote the rates of interest.
2 Bl.Comm. 462, note m.
AS. Used as an adverb, etc., means like, similar
to, of the same kind, in the same manner, in the
manner in which. Van Pelt v. Hilliard, 75 Fla.
792, 78 So. 693, 697, L.R.A.1918E 639; Price v.
Skylstead, 69 Mont. 453, 222 P. 1059, 1060. It may
also have the meaning of because, since, or it be-
ing the case that; State v. Rudman, 126 Me. 177,
136 A. 817, 819; in the character or under the
name of; State v. Blue, 134 La. 561, 64 So. 411,
414; when; Shane Bros. & Wilson Co. v. Barrett,
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71 Ind.App. 313, 124 N.E. 780, 781; With signifi-
cance of in degree, to that extent, so far. Snyder
and Blankfard Co., v. Farmers Bank of Tifton,
178 Md. 601, 16 A.2d 837, 841.
AS AGAINST; AS BETWEEN. These words con-
trast the relative position of two persons, with a
tacit reference to a different relationship between
one of them and a third person. For instance, the
temporary bailee of a chattel is entitled to it as
between himself and a stranger, or as against a
stranger; reference being made by this form of
words to the rights of the bailor. Wharton.
AS FAR AS HUMAN CARE AND FORESIGHT
WILL GO. Means for utmost care and diligence
of very cautious persons, and makes one responsi-
ble for even slightest neglect. Kline v. Santa Bar-
bara Consol. Ry. Co., 90 P. 125, 127, 150 Cal. 741.
AS IS. A sale of goods by sample "as is" requires
that the goods be of the kind and quality repre-
sented, even though they be in a damaged condi-
tion. Schwartz v. Kohn, Sup., 155 N.Y.S. 547, 548.
Use of expression in sales agreement that goods
are sold "as is" implies that buyer is taking de-
livery of goods in some way defective and upon
express condition that he must trust to his own
examination. Roby Motors Co. v. Cade, La.App.,
158 So. 840, 841.
AS LONG AS. The phrase "as long as life doth
last," in a will, is tantamount to "forever." In
re Brown, 119 Kan. 402, 239 P. 747.
AS OF COURSE. Under a statute providing that
an attachment will be dissolved, "as of course,"
upon defendant's entering his appearance and fil-
ing his answer, the quoted words mean when
asked by defendant. Pitman v. West, 198 Mo.App.
92, 199 S.W. 756, 757.
AS PER. "As per" is a sort of law and business
term which is hardly susceptible of literal transla-
tion, but which is commonly understood to mean,
"in accordance with," or "in accordance with the
terms of," or "as by the contract authorized."
Continental Bank & Trust Co. v. Times Pub. Co.,
142 La. 209, 76 So. 612, 617, L.R.A.1918B, 632.
AS SOON AS. This term has a relative meaning
according to the thing which is to be done. Eich-
elbaum & Smith v. Bishop, 75 Pa.Super.Ct. 528,
529. It often denotes merely a reasonable time;
Childers v. Brown, 81 Or. 1, 158 P. 166, 168, Ann.
Cas.1918D, 170; and it may be the equivalent of
"whenever"; People v. Merhige, 180 N.W. 418,
422, 212 Mich. 601. Sometimes it means immedi-
ately. Columbia Digger Co. v. Rector, D.C.S.D.,
215 F. 618, 630.
AS SOON AS MAY BE. Promptly and with due
diligence; as soon as was reasonably possible;
within a reasonable time; as soon as possible;
forthwith; as soon as they conveniently can.
George A. Fuller Co. v. Jersey City, 21 N.J.Misc.
38, 29 A.2d 720, 722.
AS SOON AS POSSIBLE. When used with ref-
erence to the time of performing some act, such
as the shipment of goods, these words mean mere-
ly within a reasonable time. Birmingham Paper
Co. v. Holder, 24 Ga.App. 630, 101 S.E. 692; Na-
tional Cash Register Co. v. McCann, 140 N.Y.S.
916, 920, 80 Misc. 165 ("as soon as possible" re-
quires a much more speedy fulfillment than within
a reasonable time).
AS SOON AS PRACTICABLE. Means reasonable
time. Callaway v. Central Surety & Insurance
Corporation, C.C.A.Tex., 107 F.2d 761, 762; London
Guarantee & Accident Co. v. Shafer, D.C.Ohio, 35
F.Supp. 647, 649; London Guarantee & Accident
Co. v. Shafer, D.C.Ohio, 32 F.Supp. 905, 908; Un-
verzagt v. Prestera, 13 A.2d 46, 48, 339 Pa. 141.
These words are not synonymous with "as soon as pos-
sible" ; they mean ordinarily as soon as reasonably can be
expected. Texas Employers' Ins. Ass'n v. Mummey, Tex.
Civ.App., 200 S.W. 251, 253; or "in due time", Texas
Employers' Ins. Ass'n v. Mummey, Tex.Civ.App., 200 S.W.
251, 252. But the words have also been construed as prac-
tically synonymous with speedily. Roberson v. Weaver,
145 Ga. 620, 89 S.E. 769, 772.
AS SPEEDILY AS POSSIBLE. Means within rea-
sonable time or without unreasonable delay, hav-
ing regard to all the circumstances of the case
and the things to be done. Tatum v. Levi, 117 Cal.
App. 83, 3 P.2d 963, 967.
AS SUCH. When used to give some example of a
rule, is never exclusive of other cases which that
rule is made to embrace. Dinnat v. Succession of
Lewis, 8 La.App. 820, 821.
ASCEND. To go up; to pass up or upwards; to
go or pass in the ascending line. 4 Kent, Comm.
393, 397.
ASCENDANTS. Persons With whom one is re-
lated in the ascending line; one's parents, grand-
parents, great-grandparents, etc.
ASCENDIENTES. In Spanish law. Ascendants;
ascending heirs; heirs in the ascending line.
Schm.Civil Law, 259.
ASCENT. Passage upwards; the transmission of
an estate from the ancestor to the heir in the as-
cending line. See 4 Kent, Comm. 393, 397.
ASCERTAIN. To fix; to render certain or defi-
nite; to estimate and determine; to clear of doubt
or obscurity. Pughe v. Coleman, Tex.Civ.App., 44
S.W. 578. To insure as a certainty. United States
v. Foster, C.C.A.Iowa, 131 F.2d 3, 7. To find out
by investigation, U. S. v. Carver, 43 S.Ct. 181, 182,
260 U.S. 482, 67 L.Ed. 361. Sometimes it means
to "assess", Commonwealth v. Deford Co., 137 Va.
542, 120 S.E. 281, 285; or to "hear, try, and de-
termine," In re Higgins' Estate, 143 N.Y.S. 552,
556, 81 Misc. 579.
ASCERTAINED AS AFORESAID. Manner there-
tofore prescribed. State ex rel. Walker v. Har-
rington, Del., 30 A.2d 688, 693, 3 Terry 246.
ASCRIPTITIUS (or ASCRIPTITIUS). In Roman
law. A foreigner who had been registered and
naturalized in the colony in which he resided.
Cod. 11, 47.
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ASSAULT
A man bound to the soil but not a slave. 2
Holdsw.Hist.E.L. 217. See Adscriptitii.
ASCUN, or ASCUNS. L. Fr. Any; any one;
some. Adams Gloss.
ASESINATO. In Spanish law, murder. The term
is said to be derived from the "assassins" of Syria.
Escriche Diccionario. The offense corresponds
closely to the common-law crime of murder in the
first degree. U. S. v. Alias, 18 Philippine 453, 455;
U. S. v. Pico, 18 Philippine 386, 388.
ASEXUALIZATION. See Vasectomy.
ASIDE. On one side; apart. To set aside. To
annul; to make void. State v. Primm, 61 Mo. 171.
ASK. In an affidavit wherein affiant asks that
a cause be reinstated and set down for trial,
"asks" is practically synonymous with "moves."
Harris v. Chicago House-Wrecking Co., 314 Ill. 500,
145 N.E. 666, 669.
ASPECT. View; object; possibility. Implies the
existence of alternatives. Used in the phrases
"bill with a double aspect" and "contingency with
a double aspect."
ASPERSIONS. "Aspersions" may mean the mak-
ing of calumnious report or may mean nothing
more than criticism or censure. Fitts v. Davis,
269 F. 1018, 1019, 50 App.D.C. 234.
ASPHALT. A brown to black, solid bituminous
substance occurring native at the Dead Sea, in
Trinidad, and elsewhere, and also obtained as a
residue from petroleum, coal tar, lignite tar, etc.,
and consists chiefly of a mixture of hydrocarbons
and varies from hard and brittle to plastic forms.
Asphalt Revetment Co. v. United States, 48 F.
Supp. 520, 523, 98 Ct.C1. 289.
ASPHYXIA. Apparent death, suspended anima-
tion, in living organism due to deficiency of oxy-
gen and excess of carbon dioxide in the blood.
Levinson v. Reliance Life Ins. Co. of Pittsburgh,
Pa., 184 Md. 453, 41 A.2d 485, 487. Safe Deposit
& Trust Co. of Baltimore v. New York Life Ins.
Co., D.C.Md., 14 F.Supp. 721, 723.
ASPHYXIA CARBONICA. A suffocation from in-
halation of coal gas, water gas, or carbon monox-
ide. Levinson v. Reliance Life Ins. Co. of Pitts-
burgh, Pa., Md., 184 Md. 453, 41 A.2d 485, 487.
ASPHYXIATION. A state of asphyxia. Stone v.
Physicians Casualty Ass'n of America, 130 Neb.
769, 266 N.W. 605, 607.
ASPIRIN. A coal tar product commonly kept in
drug stores and sold for medicinal purposes. It
is not a proprietary or patent medicine, but is a
drug or medicine, within a statute prohibiting re-
tailing by one not a registered pharmacist. State
v. Zotalis, 172 Minn. 132, 214 N.W. 766, 767. Peo-
ple v. Garcia, 1 Cal.App.2d 761, 32 P.2d 445, 447.
State v. Jewett Market Co., 209 Iowa, 567, 228
N.W. 288, 289.
ASPORTATION. The removal of things from one
place to another. The carrying away of goods ;
one of the circumstances requisite to constitute
the offense of larceny. 4 Bl.Comm. 231. Rex v.
Walsh, 1 Moody, Cr.Cas. 14, 15. Any appreciable
changing of the location of the property involved
with felonious intent. People v. Ashworth, 222
N.Y.S. 24, 27, 220 App.Div. 498; Banks v. State, 133
Ark. 169, 202 S.W. 43.
To constitute "asportation," the thing taken must have
been in entire or absolute possession of taker. Adams v.
Commonwealth, 153 Ky. 88, 154 S.W. 381, 44 L.R.A.,N.S.,
637. But goods need not be removed from owner's prem-
ises, but act of thief in putting property into sack which
he carries is sufficient. 21 Okl.St.Ann. § 1701. Brinkley v.
State, 60 Okl.Cr. 106, 61 P.2d 1023, 1025. The slightest
removal of goods from the place where the owner placed
them or wanted them to be is sufficient. Driggers v. State,
118 So. 20, 21, 96 Fla. 232.
ASPORTAVIT. He carried away. Sometimes
used as a noun to denote a carrying away. An
"asportavit of personal chattels." 2 H.B1. 4.
ASSACH. In old Welsh law. An oath made by
compurgators. Brown.
ASSART. In English law. The offense commit-
ted in the forest, by pulling up the trees by the
roots that are thickets and coverts for deer, and
making the ground plain as arable land. It dif-
fers from waste, in that waste is the cutting down
of coverts which may grow again, whereas assart
is the plucking them up by the roots and utterly
destroying them, so that they can never afterward
grow. This is not an offense if done with license
to convert forest into tillage ground. Consult
Manwood's Forest Laws, pt. I, p. 171. Wharton.
See Essarter.
ASSART RENTS. Rents paid to the Crown for
assarted lands.
ASSASSINATION. Murder committed for hire,
without provocation or cause of resentment given
to the murderer by the person upon whom the
crime is committed. Ersk.Inst. 4, 4, 45. A mur-
der committed treacherously or by stealth or sur-
prise, or by lying in wait. Sorrell v. State, 135
Tex.Cr.R. 535, 120 S.W.2d 1058, 1059.
ASSATH. An ancient custom in Wells, by which
a person accused of crime could clear himself by
the oaths of three hundred men. It was abolished
by St. 1 Hen. V. c. 6. Cowell; Spelman.
AssAxaz . An intentional, unlawful offer of cor-
poral injury to another by force, or force unlaw-
fully directed toward person of another, under
such circumstances as create well-founded fear of
imminent peril, coupled with apparent present
ability to execute attempt, if not prevented. State
v. Staw, 97 N.J.L. 349, 116 A. 425; Naler v. State,
148 So. 880, 25 Ala.App. 486.
Intention to harm is of the essence, Raefeldt v. Koenig,
152 Wis. 459, 140 N.W. 56, 57, L.R.A.1918E, 1052; but.gep-
eral malevolence or recklessness is sufficient, State v. Fine,
324 Mo. 19 , . ►f , ; ence str ing intentionally,
or by driving machine in reckless disregard of human life
and safety is sufficient. Webb v. State, 68 Ga.App. 466, 23
S.E.2d 578, 580. It i . o of
Wit. People v. Dong Pok Yip, 164 Cal. 143, 127 P. 1031,
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ASSAULT
1032; hence operation without consent is assau . Dicenzo
v. Berg,  a. 16 A.2d 15, 6. ssau t must have
been unwarranted, but it need not have been committed in
anger. McGovern v. Weis, 39 N.Y.S.2d 115, 118, 265 App.
Div. 367; hence self-defense is not "assault". City of Gaff-
ney v. Putnam, 197 S.C. 237, 15 S.E.2d 13 . 0, 131. Mere
words, although provoking or insulting, are insufficient;
Western Union Telegraph Co. v. Hill, C.C.A.Ala., 67 F.2d
487; Dahlin v. Fraser, 206 Minn. 476, 288 N.W. 851, 852.
In some jurisdictions degrees of the offense are estab-
lished, as first degree, State v. Laughlin, Mont., 73 P.2d
718, 721; second degree, State v. Reynolds, 94 Wash. 270,
162 P. 358, 359; and third degree, State v. Steele, 83 Wash.
470, 145 P. 581; State v. Laughlin., 105 Mont. 490, 73 P.2d
718, 721.
Aggravated Assault
One committed with the intention of commit-
ting some additional crime; or one attended with
circumstances of peculiar outrage or atrocity.
This class includes assault with a dangerous or
deadly weapon; Brinkley v. State, 82 Tex.Cr.R.
150, 198 S.W. 940; assault upon infants or fe-
males, if it create a sense of shame; Wren v.
State, 27 Ariz. 491, 232 P. 398; and assault of
lust, meaning an assault, less than felonious, with
intent to have improper sexual connection; State
v. Eslick, Mo.App., 216 S.W. 974, 975.
ASSAULT WITH INTENT TO COMMIT MAN-
SLAUGHTER. An unlawful assault committed
in such manner and with such means as would
have resulted in commission of crime of man-
slaughter if person assaulted had then and there
died from effects of assault. Lassiter v. State, 98
Fla. 370, 123 So. 735; State v. Crutcher, 1 N.W.2d
195, 199, 231 Iowa 418.
ASSAULT WITH INTENT TO COMMIT MUR-
DER. To constitute this assault and specific in-
tent to kill, actuated by malice aforethought, must
concur. Perez v. State, 114 Tex.Cr.R. 473, 22 S.
W.2d 309, 310; Griffin v. State, 177 S.E. 511, 50
Ga.App. 213.
•
ASSAULT WITH INTENT TO COMMIT RAPE.
Is constituted by the existence of the facts which
bring the offense within the definition of an as-
sault, coupled with an intention to commit the
crime of rape. Steptoe v. State, 133 Tex.Cr.R. 194,
115 S.W.2d 916, 917; State v. Jackson, 200 La.
432, 8 So.2d 285, 286.
ASSAULT WITH INTENT TO COMMIT ROB-
BERY. Involves an assault as well as an intent
to commit robbery. Foss v. State, 36 Ohio App.
417, 173 N.E. 296, 297.
Secret Assault
Under a North Carolina statute, to warrant con-
viction for malicious, "secret assault," state must
prove all essential elements of crime, namely,
malice, use of deadly weapon in secret manner,
with intent to kill. State v. Kline, 190 N.C. 177,
129 S.E. 417, 418.
It is not essential, however, that the person assaulted be
unconscious of the presence of his adversary, though the
purpose of such adversary must not be known. State v.
Oxendine, 187 N.C. 658, 122 S.E. 568, 571.
Simple Assault
One committed with no intention to do any oth-
er injury. An offer or attempt to do bodily harm
which falls short of an actual battery; an offer
or attempt to beat another, but without touching
him; for example, a blow delivered within strik-
ing distance, but which does not reach its mark.
Norton v. State, 14 Tex. 393. Also, sometimes,
the use of physical violence upon another, with-
out circumstances of aggravation. Ratcliff v.
State, 106 Tex.Cr.R. 37, 289 S.W. 1072, 1074. "Sim-
ple assault and battery" is an unlawful act of vio-
lent injury to another, unaccompanied by any cir-
cumstances of aggravation. State v. Jones, 133
S.C. 167, 130 S.E. 747, 751. And see State v. Staw,
97 N.J.L. 349, 116 A. 425.
ASSAY. The proof or trial, by chemical experi-
ments, of the purity or fineness of metals,—par-
ticularly of the precious metals, gold and silver.
West v. State, 140 Tex.Cr.R. 493, 145 S.W.2d 580,
584.
A trial of weights and measures by a standard;
as by the constituted authorities, clerks of mar-
kets, etc. Reg.Orig. 280.
A trial or examination of certain commodities,
as bread, cloths, etc. Cowell; Blount. See An-
nual Assay.
ASSAY OFFICE. The staff of persons by whom
(or the building or department in which) the
process of assaying gold and silver, required by
government, incidental to maintaining the coin-
age, is conducted.
ASSAYER. One whose business it is to make as-
says of the precious metals. West v. State, 140
Tex.Cr.R. 493, 145 S.W.2d 580, 584..
ASSAYER OF THE KING. An officer of the royal
mint, appointed by St. 2 Hen. VI. c. 12, who re-
ceived and tested the bullion taken in for coining;
also called "assayator. regis." Cowell; Termes
de la Ley.
ASSECURARE. To assure, or make secure by
pledges, or any solemn interposition of faith.
Cowell; Spelman.
ASSECURATION. In European law. Assurance;
insurance of a vessel, freight, or cargo. Ferriêre.
ASSECURATOR. In maritime law. An insurer,
(aversor periculi.) Locc. de Jure Mar. lib. 2, c.
5, § 10.
ASSEDATION. In Scotch law. An old term, used
indiscriminately to signify a lease or feu-right.
Bell; Ersk.Inst. 2, 6, 20.
ASSEMBLAGE. A collection of persons. Also
the act of coming together. State v. Breen, 110
Kan. 817, 205 P. 632, 633. Public address upon pub-
lic grounds. In re Whitney, 57 Cal.App.2d 167, 134
P.2d 516, 521.
ASSEMBLE. When applied to a machine, "as-
semble" means to collect or gather together the
parts and place them in their proper relation to
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each other to constitute the machine. Citizens'
Vat. Bank v. Bucheit, 14 Ala.App. 511, 71 So. 82,
38.
&SSEMBLY. The concourse or meeting together
)f a considerable number of persons at the same
place. Also the persons so gathered.
Popular assemblies are those where the people
meet to deliberate upon their rights; these are
guaranteed by the constitution. Const.U.S.Amend.
art. 1.
Political assemblies are those required by the
constitution and laws: for example, the general
assembly.
The lower or more numerous branch of the
legislature in many of the states is also called the
"Assembly" or "House of Assembly," but the term
seems to be an appropriate one to designate any
political meeting required to be held by law.
ASSEMBLY GENERAL. The highest ecclesiasti-
cal court in Scotland, composed of a representa-
tion of the ministers and elders of the church,
regulated by Act 5th Assem. 1694.
ASSEMBLY, UNLAWFUL. In criminal law. The
assembling of three or more persons together to
do an unlawful act, who separate without actually
doing it, or making any motion towards it. 3 Inst.
176; 4 Bl.Comm. 146. It differs from a riot or
rout, because in each of the latter cases there
is some act done besides the simple meeting. 1
Bish.Crim.Law, § 535; 2 Bish.Crim.Law, §§ 1256,
1259.
ASSENT. Compliance; approval of something
done; a declaration of willingness to do some-
thing in compliance with a request. Norton v.
Davis, 83 Tex. 32, 18 S.W. 430; Appeal of Pitts-
burgh, 115 Pa. 4, 7 A. 778; To approve, ratify
and confirm. People v. Consolidated Indemnity
and Ins. Co., 233 App.Div. 74, 251 N.Y.S. 566, 569.
It implies a conscious approval of facts actually
known, as distinguished from mere neglect to as-
certain facts. White-Wilson-Drew Co. v. Lyon-
Ratcliff Co., C.C.A.I11., 268 F. 525, 526. Sometimes
it is equivalent to "authorize." Hagerla v. Mis-
sissippi River Power Co., D.C.Iowa, 202 F. 776, 783.
In the sense of the law is a matter of overt acts,
not of inward unanimity in motives, design or the
interpretation of words. Triboro Coach Corpo-
ration v. New York State Labor Relations Board,
261 App.Div. 636, 27 N.Y.S.2d 83, 85.
"Assent" is an act of understanding, while "consent" is
an act of the will or feelings. Klundby v. Hogden, 202
Wis. 438, 232 N.W. 858, 860, 73 A.L.R. 648. It means pas-
sivity or submission which does not include consent. Per-
ryman v. State, 63 Ga.App. 819, 12 S.E.2d 388, 390.
Express Assent
That which is openly declared.
ASSESSMENT
Mutual Assent
The meeting of the minds of both or all the
parties to a contract; the fact that each agrees
to all the terms and conditions, in the same sense
and with the same meaning as the others. In-
surance Co. v. Young, 23 Wall. 107, 23 L.Ed. 152.
ASSERT. To state as true; declare; maintain.
To assert against another has probably a prima
facie meaning of a contradiction of him, but the
context or circumstances may show that it con-
notes a criminatory charge; 7 L.J.Ex. 268.
ASSERTORY COVENANT. One which affirms
that a particular state of facts exists; an affirm-
ing promise under seal.
ASSERTORY OATH. See Oath.
ASSESS. To ascertain; fix the value of. State
ex rel. Ambrose v. Trimble, 304 Mo. 533, 263 S.W.
840, 842. In re Calhoun Beach Holding Co., 205
Minn. 582, 287 N.W. 317, 322. To fix the amount
of the damages or the value of the thing to be as-
certained. New Orleans Terminal Co. v. Dixie
Rendering, La.App., 179 So. 98, 100. To impose
a pecuniary payment upon persons or property;
People v. Priest, 169 N.Y. 435, 62 N.E. 568. To
ascertain, adjust, and settle the respective shares
to be contributed by several persons toward an
object beneficial to them all, in proportion to the
benefit received.
In connection with taxation of property, means
to make a valuation and appraisal of property,
usually in connection with listing of property
liable to taxation, and implies the exercise of dis-
cretion on the part of officials charged with duty
of assessing, including the listing or inventory of
property involved, determination of extent of
physical property, and placing of a value thereon.
Montana-Dakota Power Co. v. Weeks, D.C.N.D., 8
F.Supp. 935, 936. To tax. Johnson City v. Clinch-
field R. Co., 163 Tenn. 332, 43 S.W.2d 386, 387.
To adjust or fix the proportion of a tax which each per-
son, of several liable to it, has to pay; to apportion a tax
among several ; to distribute taxation in a proportion
founded on the proportion of burden and benefit. Seymour
v. Peters, 67 Mich. 415, 35 N.W. 62. To calculate the rate
and amount of taxes. Flanigan v. Police Jury of Jackson
Parish, 145 La. 613, 82 So. 722, 726.
"Assess" is sometimes used as synonymous with "levy";
Lehigh Valley R. Co. v. State Board of Taxes and Assess-
ment, 101 N.J.Law, 298, 128 A. 432, 433; and is sometimes
distinguished therefrom; City of Portland v. Portland Ry.
Light & Power Co., 80 Or. 271, 156 P. 1058, 1064.
ASSESSED. Is equivalent to imposed. Town of
Brandon v. Harvey, 105 Vt. 435, 168 A. 708, 710.
To value or appraise. Abrams v. City and
County of San Francisco, 48 Cal.App.2d 1, 119 P.2d
197, 199.
ASSESSED VALUATION. Value on each unit of
which a prescribed amount must be paid as prop-
erty taxes. In re Calhoun Beach Holding Co., 205
Minn. 582, 287 N.W. 317, 322.
Implied Assent
That which is presumed by law.
ASSESSMENT. In a general sense, the process
of ascertaining and adjusting the shares respec-
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ASSESSMENT
tively to be contributed by several persons
towards a common beneficial object according to
the benefit received.
Taxation
The listing and valuation of property for the
purpose of apportioning a tax upon it, either ac-
cording to value alone or in proportion to benefit
received. Also determining the share of a tax
to be paid by each of many persons; or apportion-
ing the entire tax to be levied among the different
taxable persons, establishing the proportion due
from each. Town of Albertville v. Hooper, 196
Ala. 642, 72 So. 258. Northwestern Imp. Co. v.
Henneford, 184 Wash. 502, 51 P.2d 1083, 1085.
Iowa Nat. Bank. v. Stewart, 214 Iowa 1229, 232
N.W. 445, 451. It fixes the liability of the tax-
payer and ascertains the facts and furnishes the
data for the proper preparation of the tax rolls.
Dallas Joint Stock Land Bank of Dallas v. State,
Tex.Civ.App., 118 S.W.2d 941, 942.
"Assessment" and "levy" are frequently used inter-
changeably. Huyler v. Huyler's, 44 N.Y.S.2d 255, 257.
Though properly speaking it does not include the levy of
taxes. Commissioner of Internal Revenue v. Patrick Cud-
ahy Family Co., C.C.A.7, 102 F.2d 930, 932. Assessment is
also popularly used as synonym for taxation in general, the
authorative imposition of a rate or duty to be paid, but
in its technical signification it is only taxation for a special
purpose or local improvement, local taxation, as distin-
guished from general taxation ; taxation on principle of
apportionment according to the relation between burden
and benefit; whole taxes are impositions for purpose of
general revenue. Collister v. Kovanda, 51 Ohio App. 43,
199 N.E. 477, 478; Home Owners' Loan Corporation v.
Tyson, 133 Ohio St. 184, 12 N.E.2d 478, 480; Atlantic
Coast Line R. Co. v. Town of Ahoskie, 192 N.C. 258, 134
S.E. 653, 654.
An assessment is doubtless a tax, but the term implies
something more; it implies a tax of a particular kind,
predicated upon the principle of equivalents, or benefits,
which are peculiar to the persons or property charged
therewith, and which are said to be assessed or appraised,
according to the measure or proportion of such equiva-
lents; whereas a simple tax is imposed for the purpose of
supporting the government generally, without reference to
any sneci.al advantage which may be supposed to accrue to
the persons taxed. Taxes must be levied, without discrim-
ination, equally upon all the subjects of property ; whilst
assessments are only levied upon lands, or some other
specific property, the subjects of the supposed benefits; to
repay which the assessment is levied. In re Walker River
Irr. Dist., 44 Nev. 321, 195 P. 327, 330.
Corporations
Installments of the money subscribed for shares
of stock, called for from the subscribers by the
directors, from time to time as the company re-
quires money, are called "assessments," or, in
England, "calls." Water Co. v. Superior Court,
92 Cal. 47, 28 Pac. 54, 27 Am.St.Rep. 91; Spangler
v. Railroad Co., 21 Ill. 278; Stewart Publishing
Co., 1 Wash.St. 521, 20 Pac. 605. While the terms
"call" and "assessment" are generally used synon-
ymously, the latter term applies with peculiar apt-
ness to contributions above the par value of stock
or the subscription liability of the stockholders;
Porter v. Northern Fire & Marine Ins. Co., 36 N.D.
199, 161 N.W. 1012, 1014; whereas "call" or "in-
stallments" means action of the board of directors
demanding payment of all or portion of unpaid
subscriptions; Seyberth v. American Commander
Min. & Mill. Co., 42 Idaho, 254, 245 P. 392, 395.
It has been said, however, that the superadded liability
of stockholders to creditors, is not in a true sense an
"assessment," but is a "statutory liability." Leach v.
Arthur Sa y . Bank, 203 Iowa, 1052, 213 N.W. 772, 773.
Damages
Fixing the amount of damages to which the suc-
cessful party in a suit is entitled after an inter-
locutory judgment has been taken; also the name
given to the determination of the sum which a
corporation proposing to take lands for a public
use must pay 4satisfaction of the demand proved
or the value taken.
Insurance
An apportionment made in general average up-
on the various articles and interests at risk, ac-
cording to their value at the time and place of
being in safety, for contribution for damage and
sacrifices purposely made, and expenses incurred
for escape from impending common peril. 2 Phil.
Ins. c. xv.
A sum specially levied in mutual benefit insur-
ance upon a fixed and definite plan within the
limit of the company's or society's fundamental
law of organization to pay losses, or losses and
expenses incurred, being to a certain degree sub-
stantially the equivalent of premiums. Beaver
State Merchants' Mut. Fire Ins. Ass'n v. Smith, 97
Or. 579, 192 P. 798, 800. The periodical demands
made by a mutual insurance company, under its
charter and by-laws, upon the makers of premium
notes, are also denominated "assessments." Hill
v. Insurance Co., 129 Mich. 141, 88 N.W. 392.
Meaning "premiums," Ancient Order of United
Workmen of Kansas v. Hobbs, 136 Kan. 708, 18
P.2d 561, 562; and being the consideration for the
insurance contracts. Downing v. School Dist. of
City of Erie, 297 Pa. 474, 147 A. 239, 240.
Mining
"Assessment" as applied to labor on mining
claims is universally understood to mean the an-
nual labor required by Rev.St.U.S. § 2324 (30 U.S.
C.A. § 28), in order to hold the right to the pos-
session of the claim after a discovery and com-
plete location has been made. Smith v. Union Oil
Co., 166 Cal. 217, 135 P. 966, 969. See Assessment
Work.
ASSESSMENT ASSOCIATION. This term, as de-
fined by the Nebraska insurance laws, does not
include an insurance company which requires
the payment of a fixed premium in advance and
provides benefits not in any degree dependent
upon the collection of assessments from other
members, and which does not provide for the levy-
ing of extra assessments, if necessary. Western
Life & Accident Co. of Colorado v. State Ins.
Board of Nebraska, 101 Neb. 152, 162 N.W. 530.
ASSESSMENT COMPANY. In life insurance.
A company in which a death loss is met by levy-
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ASSETS
ing an assessment on the surviving members of
the association. National Ben. Ass'n v. Clay,
162 Ky. 409, 172 S.W. 922, 923.
ASSESSMENT CONTRACT. One wherein the
payment of the benefit is in any manner or de-
gree dependent on the collection of an assessment
levied on persons holding similar contracts. Folk-
ens v. Insurance Co., 98 Mo.App. 480, 72 S.W. 720.
ASSESSMENT DISTRICT. In taxation. Any
subdivision of territory, whether the whole or
part of any municipality, in which by law a sepa-
rate assessment of taxable property is made by
the officers elected or appointed therefor. Rev.
Stat.Wis.1898, § 1031 (St.1931, § 70.04).
ASSESSMENT FOR BENEFITS. A burden lev-
ied under the power of taxation. Jackson v. City
of Lake Worth, 156 Fla. 452, 23 So.2d 526, 528.
See Tax. Cooper Union for Advancement of
Science and Art v. City of New York, 272 App.
Div. 438, 71 N.Y.S.2d 204, 207.
ASSESSMENT FUND. The assessment fund of
a mutual benefit association is the balance of the
assessments, less expenses, out of which benefi-
ciaries are paid. Kerr v. Ben. Ass'n, 39 Minn. 174,
39 N.W. 312, 12 Am.St.Rep. 631.
ASSESSMENT INSURANCE. Exists when bene-
fit to be paid is dependent upon collection of such
assessments as may be necessary for paying the
amounts to insured. Keen v. Bankers Mut. Life
Co., 230 Mo.App. 1072, 93 S.W.2d 85, 90.
ASSESSMENT LABOR. These words in Act Feb.
12, 1903 (30 U.S.C.A. § 102), providing that such
labor on oil claims may be done on one of a group
of contiguous claims refers to the annual labor re-
quired of the locator of a mineral claim after dis-
covery by Rev.St. § 2324 (30 U.S.C.A. § 28), and
not to work before discovery. Union Oil Co. of
California v. Smith, 39 S.Ct. 308, 311, 249 U.S. 337,
63 L.Ed. 635. See Assessment, under the heading
"In Mining."
ASSESSMENT LIST. The list furnished by the
assessor to the board of equalization. Adsit v.
Park, 144 La. 934, 81 So. 430, 434.
ASSESSMENT PERIOD. Means taxable period.
Johnson City v. Clinchfield R. Co., 163 Tenn. 332, 43
S.W.2d 386, 387.
ASSESSMENT ROLL. In taxation. The list or
roll of taxable persons and property, completed,
verified, and deposited by the assessors, not as it
appears after review and equalization. Brady v.
Weissenstein, 260 Mich. 678, 245 N.W. 798, 799.
ASSESSMENT WORK.. Under the mining laws of
the United States, the holder of an unpatented
mining claim on the public domain is required,
in order to hold his claim, to do labor or make im-
provements upon it to the extent of at least one
hundred dollars in each year.. Rev.St.U.S. § 2324
(30 U.S.C.A. § 28). This is commonly called by
miners "doing assessment work."
ASSESSOR. An officer chosen or appointed to
appraise, value, or assess property.
The assessing power, and not merely the county assessor.
Board of Com'rs of San Miguel County v. Floaten, 66 Colo.
540, 181 P. 122.
A person learned in some particular science of
industry, who sits with the judge on the trial of
a cause requiring such special knowledge and
gives his advice.
In England it is the practice in admiralty business to call
in assessors, in cases involving questions of navigation or
seamanship. They are called "nautical assessors" (q. v.),
and are always Brethren of the Trinity House.
Civil and Scotch Law
Persons skilled in law, selected to advise the
judges of the inferior courts. Bell; Dig. 1, 22;
Cod. 1, 51.
ASSETS. The word, though more generally used
to denote everything which comes to the represen-
tatives of a deceased person, yet is by no means
confined to that use, but has come to signify
everything which can be made available for the
payment of debts, whether belonging to the estate
of a deceased person or not. Hence we speak of
the assets of a bank or other monied corporation,
the assets of an insolvent debtor, and the assets
of an individual or private copartnership; and we
always use this word when we speak of the means
which a party has, as compared with his liabilities
or debts. Pelican v. Rock Falls, 81 Wis. 428, 51
N.W. 871.
Bankruptcy
The property or effects of a bankrupt or insol-
vent, applicable to the payment of his debts.
The term "assets" includes all property of every kind
and nature, chargeable with the debts of the bankrupt,
that comes into-the hands of and under the control of the
signee; and the value thereof is not to be considered a
less sum than that actually realized out of said property,
and received by the assignee for it. In re Taggert, 16
N. B. R. 351, Fed. Cas. No. 13, 725 ; Progressive Building &
Loan Co. v. Hall, C.C.A.Va., 220 F. 45, 46.
Commercial Law
The aggregate of available property, stock in
trade, cash, etc., belonging to a merchant or mer-
cantile company.
The term "assets," as applied to a bank, is broad enough
to cover anything which is or may be available to pay
creditors; but, as usually understood, it refers to the
tangible property of the corporation, and not to the lia-
bility of stockholders contingent upon insolvency. Hill v.
Smathers, 173 N.C. 642, 92 S.E. 607, 609; Deariso v. Mob-
ley, 38 Ga.App. 313, 143 S.E. 915, 920. But when the indi-
vidual liability of stockholders has been enforced by the
superintendent of banks, funds collected by him thereun-
der are "assets." Bennett v. Wilkes County, 164 Ga. 790,
139 S.E. 566, 568.
But on other hand stockholders' voluntary assessment to
relieve bank or for betterment of stock. Thomson v. Holt,
345 Mo. 296, 132 S.W.2d 974, 977; bank stockholders' ha.
bility, Farmers & Merchants Bank of Morgantown v. Bank
of Masontown, 123 W.Va. 451, 15 S.E.2d 569, 572; and bank
directors' contribution to special bond account to make
good shrinkage in regular bond were held to be assets.
Asher v. West End Bank, 345 Mo. 89, 131 S.W.2d 549, 551.
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ASSETS
Probate Law
Property of a decedent available for the pay-
ment of debts and legacies; the estate coming to
the heir or personal representative which is
chargeable, in law or equity, with the obligations
which such heir or representative is required, in
his representative capacity, to discharge.
In an accurate and legal sense, all the personal property
of the deceased which is of a salable nature. and may be
converted into ready money, is deemed assets. But the
word is not confined to such property; for all other prop-
erty of the deceased, real or personal, tangible or intangi-
ble, legal or equitable, which can be made available for or
can be appropriated to payment of debts, is, in a large
sense, assets. Trust Co. v. Earle, 110 U.S. 710, 4 Sup.Ct.
231, 28 L.Ed. 30; Condo v. Barbour, 101 Ind.App. 483, 200
N.E. 76; Tapp v. Stuart, D.C.Okl., 6 F.Supp. 577, 578.
General
— Assets entre mains. L. Fr. Assets in hand;
assets in the hands of executors or administrators,
applicable for the payment of debts. Termes de
la Ley; 2 Bl.Comm. 510; 1 Crabb, Real Prop.
Ti; Favorite v. Booher, 17 Ohio St. 557.
—Assets per descent. That portion of the ances-
tor's estate which descends to the heir, and which
is sufficient to charge him, as far as it goes, with
the specialty debts of his ancestors. 2 Williams,
Ex'rs, 1011.
— Equitable assets. Equitable assets are all as-
sets which are chargeable with the payment of
debts or legacies in equity, and which do not fall
under the description of legal assets. 1 Story,
Eq.Jur. § 552. Those portions of the property
which by the ordinary rules of law are exempt
from debts, but which the testator has voluntarily
charged as assets, or which, being non-existent
at law, have been created in equity. Adams, Eq.
254, et seq.
They are so called because they can be reached only by
the aid and instrumentality of a court of equity, and
because their distribution is governed by a different rule
from that which governs the distribution of legal assets.
2 Fonbl. Eq. b. 4, pt. 2, c. 2, § 1, and notes; Story, Eq.
Jur. § 552.
—Legal assets. See Legal Assets.
—Personal assets. Chattels, money, and other
personal property belonging to a bankrupt, in-
solvent, or decedent estate, which go to the as-
signee or executor.
—Quick assets. This term was used in a corpora-
tion credit statement merely to distinguish liquid
assets from those permanently invested in the
business, like real estate and machinery, and in-
cluded amounts charged against officers for re-
turn of part of salaries paid them in a previous
year, in accordance with the agreement of em-
ployment. In re American Knit Goods Mfg. Co.,
C.C.A.N.Y., 173 F. 480, 97 C.C.A. 486.
—Real assets. Lands or real estate in the hands
of an heir, chargeable with the payment of the
debts of the ancestor. 2 Bl.Comm. 244, 302.
ASSEVERATION. An affirmation; a positive as-
sertion; a solemn declaration. This word is sel-
dom, if ever, used for a declaration made under
oath, but denotes a declaration accompanied with
solemnity or an appeal to conscience, whereas by
an oath one appeals to God as a witness of the
truth of what one says.
ASSEWIARE. To draw or drain water from
marsh grounds. Cowell.
ASSIGN, v. To make over or set over to .another.
North Tex. Nat. Bank v. Thompson, Tex.Civ.App.,
23 S.W.2d 494, 499. To appoint, allot, select, or
designate for a particular purpose, or duty.
Thus, in England, justices are said to be "assigned to
take the assises," "assigned to hold pleas," "assigned to
make gaol delivery," "assigned to keep the peace," etc.
St. Westm. 2, c. 30; Reg. Orig. 68, 69; 3 BI.Comm. 58,
59, 353; 1 Bl. Comm. 351.
To transfer persons, as a sheriff is said to assign pris-
oners in his custody.
Conveyancing
To transfer; as to assign property, or some in-
terest therein. Cowell; 2 Bl.Comm. 326; North
Texas Nat. Bank v. Thompson, Tex.Civ.App., 23
S.W.2d 494, 499; To transfer the title or owner-
ship, as of choses in action. Burkett v. Doty, 176
Cal. 89, 167 P. 518, 520.
Practice
To point at, or point out; to set forth, or speci-
fy; to mark out or designate; to particularize; as
to assign errors on a writ of error; to assign
breaches of a covenant. 2 Tidd, Pr. 1168; 1 Tidd,
686; Commercial Standard Ins. Co. v. Noack, Tex.
Civ.App., 45 S.W.2d 798, 801.
ASSIGNABILITY. "Survivability" convertible
term. People ex rel. Rude v. La Salle County, 310
Ill.App. 541, 34 N.E.2d 865, 867. City of Milwau-
kee v. Boynton Cab Co., 201 Wis. 581, 231 N.W. 597,
598.
ASSIGNABLE. That may be assigned or trans-
ferred; transferable; negotiable, as a bill of ex-
change. Comb. 176; Story, Bills, § 17.
ASSIGNATION. In French law. A writ of sum-
mons.
In Scotch law. A term equivalent to assign-
ment.
ASSIGNATION HOUSE. A bawdyhouse. State
v. Bragg, Mo.App., 220 S.W. 25, 26. See, also,
People v. Arcega, 49 Cal.App. 239, 193 P. 264, 266.
A house resorted to for prostitution. State v.
Hesselmeyer, 343 Mo. 797, 123 S.W.2d 90, 99.
ASSIGNATUS UTITUR JURE AUCTORIS. An.
assignee uses the right of his principal; an as-
signee is clothed with the rights of his principal..
Wing.Max. 56; 1 Exch. 32; 18 Q.B. 878.
ASSIGNAY. In Scotch law. An assignee.
ASSIGNEE. A person to whom an assignment is
made; grantee. Nolan v. City of New York, 39
N.Y.S.2d 360, 363, 179 Misc. 1011. Ely v. Com'rs,
49 Mich. 17, 12 N.W. 893, 13 N.W. 784. The term
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ASSIGNMENT
is commonly used in reference to personal prop-
erty; but it is not incorrect, in some cases, to
apply it to realty, e. g., "assignee of the rever-
sion."
Assignee in fact is one to whom an assignment
has- been made in fact by the party having the
right. Tucker v. West, 31 Ark. 643. One to whom
an assignment has been made. Michigan Trust
Co. v. Chaffee, D.C.N.D., 44 F.Supp. 848, 850.
Assignee in law is one in whom the law vests
the right; as an executor or administrator.
Old Law
A person deputed or appointed by another to
do any act, or perform any business. Blount. An
assignee, however, was distinguished from a depu-
ty, being said to occupy a thing in his own right,
while a deputy acted in right of another. Cowell.
ASSIGNEE FOR THE BENEFIT OF CREDITORS.
One to whom, under an insolvent or bankrupt
law, the whole estate of a debtor is transferred
to be administered for the benefit of creditors; he
is a trustee for the creditors who stands in the
shoes of an assignor, and can assert no claim to
property which assignor could not. Slater v.
Oriental Mills, 18 R.I. 352, 27 A. 443, 444; Textor
v. Orr, 86 Md. 392, 38 A. 939, 940.
ASSIGNMENT. A transfer or making over to
another of the whole of any property, real or
personal, in possession or in action, or of any
estate or right therein. Bostrom v. Bostrom, 60
N.D. 792, 236 N.W. 732, 734. It includes transfers
of all kinds of property, Higgins v. Monckton, 28
Cal.App.2d 723, 83 P.2d 516, 519. But is ordinarily
limited to transfers of choses in action and to
rights in or connected with property, as distin-
guished from the particular item of property. In
re Beffa's Estate, 54 Cal.App. 186, 201 P. 616,
617. It is generally appropriate to the transfer
of equitable interests. Kavanaugh v. Cohoes
Power & Light Corporation, 187 N.Y.S. 216, 228,
114 Misc. 590.
To constitute valid "assignment," there must be per-
fected transaction between parties intended to vest in
assignee present right in thing assigned. In re Lynch's
Estate, 272 N.Y.S. 79, 85, 151 Misc. 549. It is contract, and
is subject to same requisites as to validity as other con-
tracts, such as proper parties, mutual assent, considera-
tion, and legal subject-matter. Hutsell v. Citizens' Nat.
Bank, 166 Tenn. 598, 64 S.W.2d 188.
The transfer of the interest one has in lands
and tenements; more particularly applied to the
unexpired residue of a term or estate for life or
years; Cruise, Dig. tit. xxxii. (Deed) c. vii, § 15;
1 Steph.Com. 507.
The distinction between an "assignment" and a "sub-
lease" is that an assignment transfers the entire unexpired
term. Sandford v. Ambassador Restaurant Co., 247 N.Y.S.
655, 657, 139 Misc. 3.
The deed by which the transfer is made. Hum-
phrey v. Coquillard Wagon Works, 37 Okl. 714,
132 P. 899, 902, 49 L.R.A.,N.S., 600.
A transfer of the title to a bill, note, or check.
An assignment at common law differs from an indorse-
ment in that by an assignment the assignor passed title to
the assignee but did not subject himself to any contractual
liability, whereas an indorser, in addition to passing title,
impliedly contracts to pay note at maturity on demand and
notice on maker's failure to so do. Johnson v. Beickey, 64
Utah, 43, 228 P. 189, 191.
In patent law, the transfer of the entire interest
in a patented invention or of an undivided portion
of such entire interest as to every section of the
United States. Rob.Pat. § 762. It differs from
grant in relation to the territorial area to which
they relate. A grant is the transfer of the exclu-
sive right in a specific part of the United States.
It is an exclusive sectional right. A license is a
transfer of a less or different interest than either
the interest in a whole patent or an undivided
part of such whole interest or an exclusive sec-
tional interest. Littlefield v. Perry, 21 Wall. 205,
22 L.Ed. 577.
A license is distinguished from an assignment and a
grant in that the latter transfers the monopoly as well as
the invention, while a license transfers only the invention
and does not affect the monopoly otherwise than by estop-
ping the licensor from exercising his prohibitory powers in
derogation of the privileges conferred by him upon the
licensee. Rob. Pat. § 806. See Pope Mfg. Co. v. Mfg. Co.,
144 U.S. 248, 12 S.Ct. 641, 36 L.Ed. 423.
—Assignment for benefit of creditors. An assign-
ment in trust made by insolvent and other debtors
for the payment of their debts. These are usually
regulated by state statutes. Woodard v. Mor-
rissey, 115 Kan. 511, 223 P. 306, 307.
The distinctive test between an "assignment" and a sale,
where another creditor is to be paid off, is that in the
former case such other creditor is to receive some of the
property or its proceeds, and in the latter the creditor to
whom title is passed takes for himself the whole property,
stipulating to pay the other creditor out of his own means
and not out of the property or its proceeds. Silver & Gold-
stein v. Chapman, 163 Ga. 604, 136 S.E. 914, 919.
—Assignment of account. Transfer to assignee
giving him a right to have moneys when collected
applied to payment of his debt. Nanny v. H. E.
Pogue Distillery Co., 56 Cal.App.2d 817, 133 P.2d
686, 688.
—Assignment of dower. The act by which the
share of a widow in her deceased husband's real
estate is ascertained and set apart to her. Bettis
v. McNider, 137 Ala. 588, 34 So. 813, 97 Am.St.Rep.
59.
—Assignment of error. See Error.
—Assignment pro tanto. Where an order is drawn
upon a third party and made - payable out of a
particular fund then due or to become due to the
drawer, the delivery of the order to the payee
operates as an assignment pro tanto of the fund.
Doyle v. East New York Sa y . Bank, 44 N.Y.S.2d
318, 323.
Under Mechanics' Lien Law a workman or materialman
who serves on owner a stop notice becomes an assignee
pro tanto of debt due from owner to contractor. Common-
wealth Roofing Co. v. Riccio, 81 N.J.Eq. 486, 87 A. 114,
115.
Check drawn on a bank operates as an assignment pro
tanto of depositor's funds in favor of holder. Nat. Bank
of America v. Indiana Banking Co., 114 Ill. 483, 2 N.E. 401.
—Assignment with preferences. An assignment
for the benefit of creditors, with directions to the
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ASSIGNMENT
assignee to prefer a specified creditor or class of
creditors, by paying their claims in full before
the others receive any dividend, or in some other
manner. More usually termed a "preferential
assignment."
—Foreign assignment. An assignment made in a
foreign country, or in another state. 2 Kent,
Comm. 405, et seq.
—General assignment. An assignment made for
the benefit of all the assignor's creditors, instead
of a few only; or one which transfers the whole
of his estate to the assignee, instead of a part
only. Royer Wheel Co. v. Fielding, 101 N.Y. 504,
5 N.E. 431.
—Voluntary assignment. An assignment for the
benefit of his creditors made by a debtor volun-
tarily; as distinguished from a compulsory as-
signment which takes place by operation of law
in proceedings in bankruptcy or insolvency. Pre-
sumably it means an assignment of a debtor's
property in trust to pay his debts generally, in
distinction from a transfer of property to a par-
ticular creditor in payment of his demand, or to a
conveyance by way of collateral security or mort-
gage. Dias v. Bouchaud, 10 Paige (N.Y.) 445.
ASSIGNOR. A person who assigns a right, wheth-
er or not he is the original owner thereof. Re-
statement, Contracts, § 149(2).
ASSIGNS. Assignees; those to whom property
shall have been transferred. Now seldom used
except in the phrase, in deeds, "heirs, administra-
tors, and assigns." Stannard v. Marboe, 159
Minn. 119, 198 N.W. 127. It generally comprehends
all those who take either immediately or remotely
from or under the assignor, whether by convey-
ance, devise, descent, or act of law. Ferrell v.
Deverick, 100 S.E. 850, 853, 85 W.Va. 1.
ASSISA. In old English and Scotch law. An
assise; a kind of jury or inquest; a writ; a sitting
of a court; an ordinance or statute; a fixed or
specific time, number, quantity, quality, price, or
weight; a tribute, fine, or tax; a real action;
the name of a writ. See Assise.
ASSISA ARMORUM. Assise of arms. A statute
or ordinance requiring the keeping of arms for the
common defense. Hale, Com.Law, c. 11.
ASSISA CADERE. To fail in the assise;  e., to
be nonsuited. Cowell; 3 Bl.Comm. 402.
ASSISA CADIT IN JURATUM. The assise falls
(turns) into a jury; hence to submit a controversy
to trial by jury.
ASSISA CONTINUANDA. An ancient writ ad-
dressed to the justices of assise for the continua-
tion of a cause, when certain facts put in issue
could not have been proved in time by the party
alleging them. Reg.Orig. 217.
ASSISA DE CLARENDON. The assise of Claren-
don. A statute or ordinance passed in the tenth
year of Henry II., by which those that were ac-
cused of any heinous crime, and not able to purge
themselves, .but must abjure the realm, had liberty
of forty days to stay and try what succor they
could get of their friends towards their sustenance
in exile. Bract. fol. 136; Co.Litt. 159a; Cowell.
ASSISA DE FORESTA. Assise of the forest; a
statute concerning orders to be observed in the
royal forests.
ASSISA DE MENSURIS. Assise of measures. A.
common rule for weights and measures, estab-
lished throughout England by Richard I., in the
eighth year of his reign. Hale, Com.Law, c. 7.
ASSISA DE NOCUMENTO. An assise of nui-
sance; a writ to abate or redress a nuisance.
ASSISA DE UTRUM. An obsolete writ, which
lay for the parson of a church whose predecessor
had alienated the land and rents of it.
ASSISA FRISCZE FORTIJE. Assise of fresh
force, which see.
ASSISA MORTIS D'ANCESTORIS. Assise of
mort d'ancestor, which see.
ASSISA NOVAE DISSEYSINAE. Assise of novel
disseisin, which see.
ASSISA PANIS ET CEREVISLE. Assise of bread
and ale, or beer. The name of a statute passed in
the fifty-first year of Henry III., containing regula-
tions for the sale of bread and ale; sometimes
called the "statute of bread and ale." Co.Litt.
159b; 2 Reeve, Hist.Eng.Law, 56; Cowell; Bract.
fol. 155.
ASSISA PROROGANDA. An obsolete writ, which
was directed to the judges assigned to take
assises, to stay proceedings, by reason of a party
to them being employed in the king's business.
Reg.Orig. 208.
ASSISA ULTDLE PRIESENTATIONIS. Assise
of darrein presentment, (q. v.).
ASSISA VENALIUM. The assise of salable com-
modities, or of things exposed for sale.
ASSISE, or ASSIZE. An ancient species of court,
consisting of a certain number of men, usually
twelve, who were summoned together to try a
disputed cause, performing the functions of a
jury, except that they gave a verdict from their
own investigation and knowledge and not upon
evidence adduced. From the fact that they sat
together, (assideo,) they were called the "assise."
See Bract. 4, 1, 6; Co.Litt. 153b, 159b. A court
composed of an assembly of knights and other
substantial men, with the . baron or justice, in a
certain place, at an appointed time. Grand Cou.
cc. 24, 25.
The verdict or judgment of the jurors or recog-
nitors of assise. 3 Bl.Comm. 57, 59.
In modern English law, the name "assises" or "assizes"
is given to the court, time, or place where the judges of
assise and nisi pries, who are sent by special commission
from the crown on circuits through the kingdom, proceed
to take indictments, and to try such disputed causes issu-
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ASSISTANT
ing out of the courts at Westminster as are then ready for
trial, with the assistance of a jury from the particular
county; the regular sessions of the judges at nisi Arius.
Anything reduced to a certainty in respect to
time, number, quantity, quality, weight, measure,
etc. Spelman.
An ordinance, statute, or regulation. Spelman
gives this meaning of the word the first place
among his definitions, observing that statutes
were in England called "assises" down to the
reign of Henry III.
A species of writ, or real action, said to have
been invented by Glanville, chief justice to Henry
II., and having for its object to determine the
right of possession of lands, and to recover the
possession. 3 Bl.Comm. 184, 185.
The whole proceedings in court upon a writ of
assise. Co.Litt. 159b. The verdict or finding of
the jury upon such a writ. 3 Bl.Comm. 57.
—Assise of Clarendon. See Assisa.
—Assise of darrein presentment. A writ of assise
which formerly lay when a man or his ancestors
under whom he claimed presented a clerk to a
benefice, who was instituted, and afterwards, upon
the next avoidance, a stranger presented a clerk
and thereby disturbed the real patron. 3 Bl.Comm.
245; St. 13 Edw. I. (Westm. 2) c. 5. It has given
way to the remedy by quare impedit.
—Assise of fresh force. In old English practice.
A writ which lay by the usage and custom of a
city or borough, where a man was disseised of his
lands and tenements in such city or borough. It
was called "fresh force," because it was to be
sued within forty days after the party's title ac-
crued to him. Fitzh.Nat.Brev. 7 C.
—Assise of mort d'ancestor. A real action which
lay to recover land of which a person had been
deprived on the death of his ancestor by the abate-
ment or intrusion of a stranger. 3 Bl.Comm. 185;
Co.Litt. 159a. It was abolished by St. 3 & 4 Wm.
IV, c. 27.
—Assise of Northhampton. A re-enactment and
enlargement (1176) of the Assise of Clarendon.
1 Holdsw.Hist.E.L. 21.
—Assise of novel disseisin. A writ of assise which
lay for the recovery of lands or tenements, where
the claimant had been lately disseised.
—Assise of nuisance. A writ of assise which lay
where a nuisance had been committed to the
complainant's freehold; either for abatement of
the nuisance or for damages.
—Assise of the forest. A statute touching orders
to be observed in the king's forests. Manwood,
35.
—Assise of utrum. A writ of assise which lay for
a parson to recover lands which his predecessor
had improperly allowed the church to be deprived
of. 3 Bla.Com. 257.
An assise for the trial of the question of wheth-
er land is a lay fee, or held in frankalmoigne. 1
Holdsw.Hist.E.L. 21.
—Assise rents. The certain established rents of
the freeholders and ancient copyholders of a
manor; so called because they are assised, or
made precise and certain.
—Grand assize. A peculiar species of trial by
jury, introduced in the time of Henry II., giving
the tenant or defendant in a writ of right the
alternative of a trial by battel, or by his peers.
Abolished by 3 & 4 Wm. IV, c. 42, § 13. See 3 Bl.
Comm. 341. See Battel.
ASSISER. An assessor; juror; an officer who
has the care and oversight of weights and meas-
ures.
ASSISORS. In Scotch law. Jurors; the persons
who formed that kind of court which in Scotland
was called an "assise," for the purpose of inquiring
into and judging divers civil causes, such as per-
ambulations, cognitions, molestations, purpres-
tures, and other matters; like jurors in England.
Holthouse.
ASSIST. To help; aid; succor; lend countenance
or encouragement to; participate in as an auxili-
ary. People v. Hayne, 83 Cal. 111, 23 Pac. 1, 7
L.R.A. 348, 17 Am.St.Rep. 211. To contribute
effort in the complete accomplishment of an ulti-
mate purpose intended to be effected by those en-
gaged. People v. Thurman, 62 Cal.App. 147, 216
P. 394, 395.
ASSISTANCE. Imports voluntary participation
in wrongful acts of promotors. Peterson v. Hop-
son, 29 N.E.2d 140, 148, 306 Mass. 597.
ASSISTANCE, or (ASSISTANTS) COURT OF.
See Court of Assistants.
ASSISTANCE OF COUNSEL. Sixth Amendment
to Federal Constitution, guaranteeing accused in
criminal prosecution "assistance of counsel" for
his defense, means effective assistance. U.S.C.A.
Const. Amend. 6. Thomas v. District of Columbia,
90 F.2d 424, 428, 67 App.D.C. 179. As distinguished
from bad faith, sham, mere pretense or want of
opportunity for conferences and preparation.
Beckett v. Hudspeth, C.C.A.Kan., 131 F.2d 195, 196.
ASSISTANCE, WRIT OF. See Writ of Assistance.
ASSISTANT. A deputy, agent, or employee; as,
an assistant assessor. Pryor Brown Transfer Co.
v. Gibson, 154 Tenn. 260, 290 S.W. 33, 35, 51 A.L.
R. 193. One who stands by and aids or helps an-
other, and is not an agent. Wells-Dickey Co. v.
Embody, 82 Mont. 150, 266 P. 869, 874. Ordinarily
refers to employee whose duties are to help his su-
perior, to whom he must look for authority to act.
State ex rel. Dunn v. Ayers, 112 Mont. 120, 113 P.
2d 785, 788.
ASSISTANT JUDGE. A judge of the English
court of general or quarter sessions in Middlesex.
He differs from the other justices in being a bar-
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ASSISTANT
rister of ten years' standing, and in being salaried.
St. 7 & 8 Vict. c. 71; 22 & 23 Vict. c. 4; Pritch.
Quar.Sess. 31.
ASSISTANT TEACHER. An "assistant teacher,"
meaning a classroom teacher of a subject, is not
a "laboratory assistant," meaning a helper of a
teacher who does no teaching. People ex rel.
Becker v. Board of Education of City of New
York, Sup., 162 N.Y.S. 643, 648.
ASSISUS. Rented or farmed out for a specified
assise; that is, a payment of a certain assessed
rent in money or provisions.
ASSITHMENT. Weregild (q. v.) or compensation
by a pecuniary mulct. Cowell.
ASSIZE. In the practice of the criminal courts
of Scotland, the fifteen men who decide on the
conviction or acquittal of an accused person are
called the "assize," though in popular language,
and even in statutes, they are called the "jury."
Wharton. See Assise.
ASSIZES. Sessions of the justices or commis-
sioners of assize. These assizes are held twice in
each year in each of the various shires of Eng-
land, with some exceptions, for the trial of mat-
ters of fact in issue in both civil and criminal
cases. They still retain the ancient name in popu-
lar language, though the commission of assize is
no longer issued. See Assise.
ASSIZES DE JERUSALEM. A code of feudal
jurisprudence prepared by an assembly of barons
and lords A. D. 1099, after the conquest of Jerusa-
lem. It was compiled principally from the laws
and customs of France.
ASSOCIATE. Signifies confederacy or union for a
particular purpose, good or ill. Weir v. United
States, C.C.A.Ind., 92 F.2d 634, 638, 114 A.L.R. 481;
Means "also". Smith v. Maine, 260 N.Y.S. 409,
145 Misc. 521.
An officer in each of the English courts of com-
mon law, appointed by the chief judge of the
court, and holding his office during good behavior,
whose duties were to superintend the entry of
causes, to attend the sittings of nisi prius, and
there receive and enter verdicts, and to draw up
the posteas and any orders of nisi prius. The as-
sociates are now officers of the Supreme Court of
Judicature, and are styled "Masters of the Su-
preme Court." Wharton.
A person associated with the judges and clerk
of assise in the commission of general jail de-
livery. Mozley & Whitley.
The term is frequently used of the judges of appellate
courts, other than the presiding judge or chief justice.
ASSOCIATES IN OFFICE. "Associates in office"
are those who are united in action; who have a
common purpose; who share the responsibility
or authority and among whom is reasonable
equality; those who are authorized by law to per-
form the duties jointly or as a body. Barton v.
Alexander, 27 Idaho 286, 148 P. 471, 474, Ann.Cas.
1917D, 729,
ASSOCIATION. The act of a number of persons
in uniting together for some special purpose or
business. The persons so joining. It is a word of
vague meaning used to indicate a collection of
persons who have joined together for a certain
object. U. S. v. Martindale, D.C.Kan., 146 F.
280, 284; In. re Sautter's Estate, 142 Neb. 42, 5
N.W.2d 263, 268; W. R. Roach & Co. v. Harding,
348 Ill. 454, 181 N.E. 331, 336. An unincorporated
society; a body of persons united and acting to-
gether without a charter, but upon the methods
and forms used by incorporated bodies for the
prosecution of some common enterprise. Clark v.
Grand Lodge of Brotherhood of Railroad Train-
men, 328 Mo. 1084, 43 S.W.2d 404, 408. It is not a
legal entity separate from the persons who com-
pose it. Meinhart v. Contresta, Sup., 194 N.Y.S.
593, 594.
A confederacy or union for particular purposes,
good or ill. Johnson's Dict.
In that sense "association" is a generic term and
indifferently comprehend a voluntary confederacy, whici-
is a partnership dissoluble by the persons who formed it
or a corporate confederacy, deriving its existence from
confederacy, and dissoluble only by the law." Campbell
v. Floyd, 153 Pa. 84, 25 A. 1033, 1036.
A body of persons invested with some, yet not full, con
porate rights and powers, but will not include the state
State v. Taylor, 7 S.D. 533, 64 N.W. 548.
"Association" and "society" are convertible terms
Kribs v. United Order of Foresters, 191 Mo.App. 524, 17'
S.W. 766, 769. Also often used as synonymous with "corn
pany". Law v. Crist, 41 Cal.App.2d 862, 107 P.2d 953, 955.
It is fundamentally a large partnership, from which i
differs, in that it is not bound by the acts of the individ
ual partners, but only by those of its manager or trustee
and that shares in it are transferable, and that it is no
dissolved by the retirement, death, or bankruptcy of it,
individual members. In re Lloyds of Texas, D.C.Tex., 4:
F.2d 383, 385.
A "business trust" is an "association" when it has
continuing entity throughout trust period, centralize(
management, continuity of trust uninterrupted by deatl
among beneficial owners, means for transfer of beneficia
interests, and limitation of personal liabilities of partici
pants to property embarked in undertaking. Fletcher v
Clark, D.C.Wyo., 57 F.Supp. 479, 480.
"Association" has been held to include a common-la%
business or Massachusetts trust. Tracy v. Banker, 17
Mass. 266, 49 N.E. 308, 39 L.R.A. 508.
Articles of association. See Articles.
English Law
A writ directing certain persons (usually the
clerk and his subordinate officers) to associate
themselves with the justices and sergeants for th,
purpose of taking the assizes. 3 Bla.Comm. 59.
National Banking Associations
The statutory title of corporations organize(
for the purpose of carrying on the business o
banking under the laws of the United State:.
Rev.St.U.S. § 5133 (12 USCA § 21).
ASSOCIE EN NOM. In French law. In a societ
en commanditd an associd en nom is one who i
liable for the engagements of the undertaking t
the whole extent of his properly. This expressio:
arises from the fact that the names of the associd
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ASSUMPTION
so liable figure in the firm-name or form part of
the sociêtó en i.nom collectif. Arg.Fr.Merc.Law,
546.
ASSOIL. (Spelled also assoile, absoile, assoilyie.)
To absolve; acquit; to set free; to deliver from
excommunication. St. 1 Hen. IV, c. 7; Cowell.
ASSOILZIE. In Scotch law. To acquit .the de-
fendant in an action; to find a criminal not guilty.
ASSUME. To pretend. To undertake; engage;
promise. 1 Ld.Raym. 122; 4 Coke, 92; Hopkins v.
Erskine, 118 Me. 276, 107 A. 829, 830. To take to
or upon one's self. Springer v. De Wolf, 194 Ill.
218, 62 N.E. 542, 56 L.R.A. 465, 88 Am.St.Rep. 155;
Anicker v. Doyle, 84 Okl. 62, 202 P. 281, 284; Bell
Telephone Co. of Pennsylvania v. Public Service
Commission of Pennsylvania, 119 Pa.Super. 292,
181 A. 73, 74. Also taking up, receiving, adopting,
taking to oneself, or to put on deceitfully, take
appearance of, affect, or outwardly seem. Nickell
v. State, 205 Wis. 614, 238 N.W. 508, 510. To take
on, become bound as another is bound, or put one-
self in place of another as to an obligation or lia-
bility. Texas Employers' Ins. Ass'n v. Texas & P.
Ry. Co., Tex.Civ.App., 129 S.W.2d 746, 749.
ASSUMED RISK. See Assumption of Risk.
ASSUMPSIT. Lat. He undertook; he promised.
A promise or engagement by which one person
assumes or undertakes to do some act or pay
something to another. It may be either oral or
in writing, but is not under seal. It is express if
the promisor puts his engagement in distinct and
definite language; it is implied where the law
infers a promise (though no formal one has
passed) from the conduct of the party or the cir-
cumstances of the case. Dukes v. Rogers, 67 Ga.
App. 661, 21 S.E.2d 295, 297.
Practice
A form of action which lies for the recovery
of damages for the non-performance of a parol
or simple contract; or a contract that is neither
of record nor under seal. 7 Term. 351; Ballard v.
Walker, 3 Johns. Cas. (N.Y.) 60. A liberal and
equitable action, applicable to almost every case
where money has been received which in equity
and good conscience ought to be refunded; ex-
press promise is not necessary to sustain action,
but it may be maintained whenever anything is
received or done from the circumstances of which
the law implies a promise of compensation. Ar-
mour & Co. v. Whitney & Kemmerer, Inc., 164
Va. 12, 178 S.E. 889, 98 A.L.R. 596.
Express assumpsit. See Express Assumpsit
Special assumpsit is an action of assumpsit
brought upon an express contract or promise.
General (common or indebitatus) assumpsit is
an action of assumpsit brought upon the promise
or contract implied by law in certain cases. It is
founded upon what the law terms an implied
promise on the part of defendant to pay what, in
good conscience, he is bound to pay to plaintiff.
Tr. and Ha. Pr. 1490; Ruse v. Williams, 14 Ariz
445, 130 P. 887, 888, 45 L.R.A.,N.S., 923.
The action of assumpsit differs from trespass and trover,
which are founded on a tort, not upon a contract; from
covenant and debt, which are appropriate where the
ground of recovery is a sealed instrument, or special obli-
gation to pay a fixed sum; and from replevin which seeks
the recovery of specific property, if attainable, rather than
' of damages.
ASSUMPSIT FOR MONEY HAD AND RE-
CEIVED. Is of equitable character and lies, in
general, whenever defendant has received money
which in equity and good conscience he ought to
pay to plaintiff. Henderson v. Koenig, 192 Mo.
690, 91 S.W. 88, 91.
ASSUMPSIT ON QUANTUM MERUIT. When a
person employs another to do work for him, with-
out any agreement as to his compensation, the law
implies a promise from the employer to the work-
man that he will pay him for his services as much
as he may deserve or merit. In such case, the
plaintiff may suggest in his declaration that the
defendant promised to pay him as much as he
reasonably deserved, and then aver that his trouble
was worth such a sum of money, which the de-
fendant has omitted to pay. This is called an
"assumpsit on quantum meruit". Travis v. Ken-
nedy, Tex.Civ.App., 66 S.W.2d 444, 446.
ASSUMPTION. The act of conceding or taking
for granted. Gordon v. Schellhorn, 95 N.J.Eq. 563,
123 A. 549, 552.
The term is substantially synonymous with "inference,"
"probability," and "presumption." Ohio Bldg. Safety
Vault Co. v. Industrial Board of Illinois, 277 Ill. 96, 115
N.E. 149, 154.
The act or agreement of assuming or taking
upon one's self; the undertaking or adoption of a
debt or obligation primarily resting upon another,
as where the purchaser of real estate "assumes"
a mortgage resting upon it, in which case he adopts
the mortgage debt as his own and becomes per-
sonally liable for its payment. Lenz v. Railroad
Co., 111 Wis. 198, 86 N.W. 607; Bell Telephone
Co. of Pennsylvania v. Public Service Commission
of Pennsylvania, 119 Pa.Super. 292, 181 A. 73, 75.
The difference between the purchaser of land assuming
a mortgage on it and simply buying subject to the mort-
gage, is that In the former case he makes himself per-
sonally liable for the payment of the mortgage debt, while
in the latter case he does not. Hancock v. Fleming, 103
Ind. 533, 3 N.E. 254. When he takes the conveyance sub-
ject to the mortgage, he is bound only to the extent of
the property. Brichetto v. Raney, 76 Cal.App. 232, 245 P.
235, 241. Where one "assumes" a lease, he takes to him-
self the obligations, contracts, agreements, and benefits to
which the other contracting party was entitled under the
terms of the lease. Cincinnati, etc., R. Co. v. Indiana, etc.,
R. Co., 44 Ohio St. 287, 314, 7 N.E. 152.
ASSUMPTION OF INDEBTEDNESS. Means for
one person to bind himself to pay debt incurred by
another. Pawnee County Excise Board v. Kurn,
187 Oki. 110, 101 P.2d 614, 618.
ASSUMPTION OF RISK. Exists where none of
fault for injury rests with plaintiff, but where
plaintiff assumes consequences of injury occurring
through fault of defendant, third person, or fault
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ASSUMPTION
of no one. Rodgers v. Stoller, 284 Ky. 108, 143 S.
W.2d 1047, 1048. It is based upon the maxim
"volenti non fit injuria," which means that to
which a person assents is not regarded in law as
an injury. Poole v. Lutz & Schmidt, 273 Ky.
586, 117 S.W.2d 575, 576. And predicated upon
knowledge and consent. Kansas City Southern
Ry. Co. v. Diggs, 205 Ark. 150, 167 S.W.2d 879,
883. While more generally used as between mas-
ter and servant, courts do not confine it to such
relationship. Adams' Adm'r v. Callis & Hughes,
253 Ky. 382, 69 S.W.2d 711, 712.
Doctrine held applicable in action by automobile guest
passeng er. Gill v. Arthur, 69 Ohio App. 386, 43 N.E.2d 894,
899. But held not applicable in automobile collision cases
generally. Schubring v. Weggen, 234 Wis. 517, 291 N.W.
788, 789, 790, 791.
In some jurisdictions, doctrine confined to master
and servant relation. Dowse v. Maine Cent. R. R.,
91 N.H. 419, 20 A.2d 629, 631; Parker v. Grand
Trunk Western R. Co., 261 Mich. 293, 246 N.W.
125, 126; West Texas Utilities Co. v. Reuner, Tex.,
32 S.W.2d 264, 270. A term or condition in a con-
tract of employment, either express or implied
from the circumstances of the employment, by
which the employee agrees that dangers of injury
ordinarily or obviously incident to the discharge
of his duty in the particular employment shall be
at his own risk. Parker v. City of Wichita, 150
Kan. 249, 92 P.2d 86, 89; Wisconsin & Arkansas
Lumber Co. v. Otts, 178 Ark. 283, 10 S.W.2d 364,
365; Southern Pac. Co. v. McCready, C.C.A.Cal.,
47 F.2d 673, 675. It has reference to dangers that
are normally and necessarily incident to the oc-
cupation, which are deemed to be assumed by
workmen of mature years, whether they are ac-
tually aware of them or not. Chesapeake & 0.
Ry. Co. v. Cochran, C.C.A.W.Va., 22 F.2d 22,
25.
It is founded upon the knowledge of the servant either
actual dr constructive, as to the hazards to be encountered
and his consent to take the chance of danger. Schuppenies
v. Oregon Short Line R. Co., 38 Idaho, 672, 225 P. 501, 505.
But it does not include the risks from the negligence of
the master, or the gross negligence of his superior servant.
Burton Const. Co. v. Metcalfe, 162 Ky. 366, 172 S.W. 698,
702; "Contributory negligence" is not synonymous with
assumption of risk. Dolese Bros. Co. v. Kahl, C.C.A.Iowa,
203 F. 627, 630.  "Assumed risk" is founded upon the
knowledge of the employee, either actual or constructive,
of the risks to be encountered, and his consent to take the
chance of injury therefrom. Contributory negligence
implies misconduct, the doing of an imprudent act by the
Injured party, or his dereliction in failing to take proper
precaution for his personal safety.  The doctrine of
assumed risk is founded upon contract, while contributory
negligence is solely matter of conduct. Wheeler v. Tyler,
129 Minn. 206, 152 N.W. 137.
ASSUMPTION OF SKILL. The doctrine known
as the "assumption of skill" on the part of the
master sometimes makes the knowledge implied
against the master relative to the safety of the
place of work, and the nature, constituents, and
general characteristics of the things used in the
business, superior to that implied against the
servant, especially where the servant is inex-
perienced. Hines v. Little, 26 Ga.App. 136, 105 S.
E. 618.
ASSURANCE. A pledge, guaranty, or surety. Na-
tional Watch Co. v. Weiss, 163 N.Y.S. 46, 47, 98
Misc. 453. A declaration tending to inspire full
confidence. Texas & N. 0. Ry. Co. v. New, Tex.
Civ.App., 95 S.W.2d 170, 175. A making secure;
insurance.
The term was formerly of very frequent use in the
modern sense of insurance, particularly in English mari-
time law, and still appears in the policies of some com-
panies, but is otherwise seldom seen of late years. There
seems to be a tendency, however, to use assurance for the
contracts of life insurance companies, and insurance for
risks upon property.
In conveyancing. A deed or instrument of con-
veyance. The legal evidences of the transfer of
property are in England called the "common as-
surances" of the kingdom, whereby every man's
estate is assured to him, and all controversies,
doubts, and difficulties are either prevented or
removed. 2 Bl.Comm. 294. State v. Farrand, 8
N.J.Law, 335.
ASSURANCE, FURTHER, COVENANT FOR. See
Covenant for Further Assurance.
ASSURE. To make certain and put beyond doubt.
Armour & Co. v. New York, N. H. & H. R. Co., 41
R.I. 361, 103 A. 1031, 1033. To declare solemnly;
to assure to any one with design of inspiring be-
lief or confidence; to declare, aver, avouch, assert,
or asseverate. Chanin v. Chevrolet Motor Co.,
C.C.A.Ill., 89 F.2d 889, 891. Used interchangeably
With insure in insurance law; in real property
documents it means a warranty; and in business
documents, generally, it means a pledge or se-
curity. Utilities Engineering Institute v. Kafad,
58 N.Y.S.2d 743, 745, 185 Misc. 1035.
ASSURED. A person who has been insured by
some insurance company, or underwriter, against
losses or perils mentioned in the policy of insur-
ance. Brockway v. Insurance Co., C.C.Pa., 29 Fed.
766.
Thus where a wife insures her husband's life for her
own benefit and he has no interest in the policy, she is
the "assured" and he the "insured."
The person for whose benefit the policy is is-
sued and to whom the loss is payable, not neces-
sarily the person on whose life or property the
policy is written. Insurance Co. v. Luchs, 2 S.Ct.
949, 108 U.S. 498, 27 L.Ed. 800. Ordinarily syn-
onymous with insured. Thompson v. Northwest-
ern Mut. Life Ins. Co., 161 Iowa, 446, 143 N.W. 518.
ASSURED CLEAR DISTANCE AHEAD. Re-
quires driver keep automobile under such control
that he can stop in distance that he can clearly
see, the distance varying with circumstances.
Lauerman v. Strickler, 141 Pa.Super. 240, 14 A.2d
608, 610; Smiley v. Arrow Spring Bed Co., 138
Ohio St. 81, 33 N.E.2d 3, 5, 6, 7, 9, 133 A.L.R. 960.
ASSURER. An insurer against certain perils and
dangers; an underwriter; and indemnifier.
ASSYTHEMENT. In Scotch law. Damages
awarded to the relative of a murdered person
from the guilty party, who has not been convicted
and punished. Paters. Comp.
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AT
ASTIPULATION. A mutual agreement, assent,
and consent between parties; also a witness or
record.
ASTITRARIUS Hi zERES. An heir apparent who
has been placed, by conveyance, in possession of
his ancestor's estate during such ancestor's life-
time. Co.Litt. 8.
ASTITUTION. An arraignment (q. v.).
ASTRARIUS. In old English law. A house-
holder; belonging to the house; a person . in ac-
tual possession of a house.
ASTRARIUS H/ERES. Where the ancestor by
conveyance hath set his heir apparent and his
family in a house in his lifetime. Cunningham,
L. Dict.
ASTRER. In old English law. A householder,
or occupant of a house or hearth.
ASTRICT. In Scotch law. To assign to a par-
ticular mill.
ASTRICTION TO A MILL. A servitude by which
grain growing on certain lands or brought within
them must be carried to a certain mill to be
ground, a certain multure or price being paid for
the same. Jacob.
ASTRIHILTET. In Saxon law. A penalty for
a wrong done by one in the king's peace. The
offender was to replace the damage twofold. Spel-
man.
ASTRUM. A house, or place of habitation. Bract.
fol. 267b; Cowell.
ASYLUM. A sanctuary, or place of refuge and
protection, where criminals and debtors found
shelter, and from which they could not be taken
without sacrilege. Cromie v. Institution of Mercy,
3 Bush (Ky.) 391.
Shelter; refuge; protection from the hand of
justice. The word includes not only place, but
also shelter, security, protection.
A fugitive from justice, who has committed a crime in a
foreign country, "seeks an asylum" at all times when he
claims the use of the territories of the United States. In
re De Giacomo, 12 Blatchf. 395, Fed.Cas.No.3,747. Every
sovereign state has the right to offer an asylum to fugitives
from other countries, but there is no corresponding right
on the part of the alien to claim asylum. In recent years
this right of asylum has been voluntarily limited by most
states by treaties providing for the extradition (q. v.) of
fugitive criminals.
In time of war, a place of refuge in neutral
territory for belligerent war-ships.
An institution for the protection and relief of
unfortunates, as asylums for the poor, for the
deaf and dumb, or for the insane. Lawrence v.
Leidigh, 58 Kan. 594, 50 P. 600, 62 Am.St.Rep.
631. The term may also include a hospital con-
structed and maintained by the United States
government for the treatment of soldiers and ex-
soldiers. Kemp v. Heebner, 77 Colo. 177, 234 P.
1068, 1069.
AT. A term of considerable elasticity of mean-
ing, and somewhat indefinite. As used to fix a
time, it does not necessarily mean eo instante or
the identical time named, or even a fixed definite
moment. Barnett v. Strain, 151 Ga. 553, 107 S.E.
530, 532; In re Clark's Estate, 61 P.2d 1221, 1222,
17 Cal.App.2d 323; And may mean on the same
day, Perry v. Gross, 172 Cal. 468, 156 P. 1031,
1032. But "at" may often express simply near-
ness and proximity, and consequently may denote
a reasonable time. Smeltzer v. Atlanta Coach Co.,
44 Ga.App. 53, 160 S.E. 665, 666. Primarily, "at"
means "near" or "near to," and involves the idea
of proximity. Chesapeake & 0. Ry. Co. v. Hill,
215 Ky. 222, 284 S.W. 1047, 1048, 48 A.L.R. 327;
"At" a village or city may mean "near." Howell
v. State, 164 Ga. 204, 138 S.E. 206, 209; Board of
Trustees of Albany College v. Monteith, 64 Or.
356, 130 P. 633, 636. Depending on the context,
"at" may be equivalent to "in"; Millikan v. Se-
curity Trust Co., 187 Ind. 307, 118 N.E. 568; Fayette
County Board of Education v. Tompkins, 212 Ky.
751, 280 S.W. 114, 116; "toward"; State v. Cun-
ningham, 107 Miss. 140, 65 So. 115, 117, 51 L.R.A.
(N.S.) 1179; "after"; Davis v. Godart, 131 Minn.
221, 154 N.W. 1091, 1092; "not later than"; Smith
v. Jacksonville Oil Mill Co., 21 Ga.App. 679, 94
S.E. 900, 901; or be equivalent to the words on,
by, about, under, over, through, from, to, etc.
AT ARM'S LENGTH. Beyond the reach of per-
sonal influence or control.
Parties are said to deal "at arm's length" when each
stands upon the strict letter of his rights, and conducts
the business in a formal manner, without trusting to the
other's fairness or integrity, and without being subject to
the other's control or overmastering influence.
AT BAR. Before the court. "The case at bar,"
etc. Dyer, 31.
AT ISSUE. Whenever the parties come to a point
in the pleadings which is affirmed on one side and
denied on the other, they are said to be at an
issue. Willard v. Zehr, 215 Ill. 154, 74 N.E. 107,
108.
AT LARGE. Not limited to any particular place,
district, person, matter, or question; open to dis-
cussion or controversy; not precluded. Free;
unrestrained; not under corporal control; as a
ferocious animal so free from restraint as to be
liable to do mischief. Fully; in detail; in an ex-
tended form.
A congressman at large Is one who is elected by the
electors of an entire state.
AT LAW. According to law; by, for, or in law;
particularly in distinction from that which is done
in or according to equity; or in titles such as
sergeant at law, barrister at law, attorney or
counsellor at law. Hooker v. Nichols, 116 N.C.
157, 21 S.E. 208.
AT LEAST. In deed of trust covenant specifying
amount of fire insurance, means at lowest esti-
mate, at smallest concession or claim, in smallest
or lowest degree, at smallest number. Browne v.
Franklin Fire Ins. Co., 225 Mo.App. 665, 37 S.W.2d
977, 979.
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AT
AT ONCE. In contracts of various kinds the
phrase is construed as synonymous with "imme-
diately" and "forthwith," where the subject-mat-
ter is the giving of notice. The use of such term
does not ordinarily call for instantaneous action,
but rather that notice shall be given within such
time as is reasonable in view of the circumstances.
George v. Aetna Casualty and Surety Co., 121
Neb. 647, 238 N.W. 36, 39. Likewise, contracts or
statutes requiring the performance of a particular
act "at once" are usually held to mean simply
within a reasonable time. Arizona Power Co. v.
State, 19 Ariz. 114, 166 P. 275, 277. An order to
"ship at once" is synonymous with "as soon as
possible". Myers v. Hardin, 208 Ark. 505, 186 S.
W.2d 925, 928.
AT SEA. Out of the limits of any port or harbor
on the sea-coast. U. S. v. Symonds, 7 S.Ct. 411, 120
U.S. 46, 30 L.Ed. 557.
AT WAR. Death of seaman from Pearl Harbor
Attack as occurring while nation was "at war".
Rosenau v. Idaho Mut. Ben. Ass'n, 65 Idaho 408,
145 P.2d 227, 232.
AT ANY TIME. Grant of time without limit.
Haworth v. Hubbard, 220 Ind. 611, 44 N.E.2d 967,
970, 144 A.L.R. 887. Period of time limited by
circumstances. Imes v. Globe Oil & Refining Co.,
84 P.2d 1106, 1107, 1108, 184 Okl. 79. Within a
reasonable time. Haworth v. Hubbard, 220 Ind.
611, 44 N.E.2d 967, 970, 144 A.L.R. 887.
AT ANY TIME PRIOR TO. Synonymous with
"not later than". Hughes v. United States, C.C.A.
Tenn., 114 F.2d 285, 287.
AT THE COURTHOUSE DOOR. In proximity of
courthouse door. At place provided for posting
of legal notices in courthouse. Matson v. Federal
Farm Mortg. Corporation, Tex.Civ.App., 151 S.W.
2d 636, 640, 641.
AT THE END OF THE WILL.. The words "at
the end of the will" within statute providing that
every will shall be subscribed by testator at the
end of the will mean the end of the language and
not paper on which it is written. In re Golden's
Will, 300 N.Y.S. 737, 738, 165 Misc. 205; In re
Hildreth's Will, 36 N.Y.S.2d 938, 939, 940.
AT TIME CAUSE OF ACTION ACCRUES. Is
sometimes applied to present enforcible demand,
but more often simply means to arise or come into
existence. Stone v. Phillips, 142 Tex. 216, 176 S.
W.2d 932, 933.
ATAMITA. In the civil law. A great-great-great-
grandfather's sister.
ATAVIA. In the civil law. A great-grandmother's
grandmother.
ATAVUNCULUS. The brother of a great-grand-
father's grandmother, or a great-great-great-
grandfather's brother.
ATAVUS. The male ascendant in the fifth degree.
The great-grandfather's or great-grandmother's
grandfather; a fourth grandfather.
The ascending line of lineal ancestry runs thus: Pater,
Avus, Proavus, Abavus, Atavus, Tritavus. The seventh
generation in the ascending scale will be Tritavi-pater, and
the next above it Proavi-atavus.
ATHA. (Spelled also Atta, Athe, Atte.) In Saxon
law. An oath; the power or privilege of exacting
and administering an oath. Spelman.
ATHEIST. One who does not believe in the ex-
istence of a God. Gibson v.. Insurance Co., 37
N.Y. 584.
ATIA. Hatred or See De Odio et Atia.
ATILIAN LAW. See Lex Atilia.
ATILIUM. The tackle or rigging of a ship; the
harness or tackle of a plow. Spelman.
ATINIAN LAW. See Lex Atinia.
ATMATERTERA. A great-grandfather's grand-
mother's sister, (atavice soror;) called by Bracton
"atmaterwera magna." Bract. fol. 68b.
ATOMIZE. To reduce to atoms or atom-like par-
ticles; pulverize; spray. In re Preble, Cust. &
Pat.App., 45 F.2d 1007, 1009; Stearns-Roger Mfg.
Co. v. Greenawalt, C.C.A.Colo., 62 F.2d 1033, 1039.
ATPATRUUS. The brother of a great-grand-
father's grandfather.
ATRAVESADOS. In maritime law. A Spanish
term signifying athwart, at right angles, or
abeam; sometimes used as descriptive of the posi-
tion of a vessel which is "lying to." The Hugo,
D.C.N.Y., 57 F. 403, 410.
ATROCIOUS ASSAULT AND BATTERY. An as-
sault by maiming and wounding. State v. Staw,
97 N.J.Law, 349, 116 A. 425.
ATROCITY. A word implying conduct that is
outrageously or wantonly wicked, criminal, vile,
cruel; extremely horrible and shocking. State v.
Wyman, 56 Mont. 600, 186 P. 1, 3.
ATROPINE. A drug employed for purposes of
dilating the eye so as to put the small muscles
inside the eye at rest and to prevent adhesions of
the iris and lens. De Zon v. American President
Lines, C.C.A.Cal., 129 F.2d 404, 406.
ATS. At suit of.
ATTACH. To bind, fasten, tie, or connect, to
make fast or join, and its antonyms are separate,
detach, remove. State v. Modern Box Makers,
217 Minn. 41, 13 N.W.2d 731, 733. To take or
apprehend by commandment of a writ or precept.
Buckeye Pipe-Line Co. v. Fee, 62 Ohio St. 543, 57
N.E. 446, 78 Am.St.Rep. 743.
It differs from arrest, because it takes not only the body,
but sometimes the goods, whereas an arrest is only against
the person; besides, he who attaches keeps the party
attached in order to produce him in court on the day
named, but he who arrests lodges the person arrested in
the custody of a higher power, to be forthwith disposed of.
Fleta, lib. 5, c. 24. See Attachment.
In a broad sense, "attach" indicates any seizure of prop-
erty for the purpose of bringing it within the custody of
the court, and is not limited to a seizure on mesne process.
In re Clark, D.C.Mich., 11 F.2d 540, 541.
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ATTACIE TT
ATTACHE. A person attached to an embassy, to
the suite of an ambassador, or to a foreign lega-
tion. One connected with an office, e. g., a public
office. Noel v. Lewis, 35 Cal.App. 658, 170 P. 857,
859.
ATTACHED. A term describing the physical
union of two otherwise independent structures or
objects, or the relation between two parts of a
single structure, each having its own function.
National Brake & Electric Co. v. Christensen, C.
C.A.Wis., 229 F. 564, 570. As applied to buildings,
the term is often synonymous with "annexed."
Williams Mfg. Co. v. Insurance Co. of North
America, 93 Vt. 161, 106 A. 657, 659.
The word "attached," in an affidavit of service of a
notice, used to designate a notice appearing on the reverse
side of the affidavit, is improper. Wood v. Yearous, 159
Iowa, 211, 140 N.W. 362, 364.
ATTACHIAMENTA. L. Lat. Attachment.
ATTACHIAMENTA BONORUM. A distress form-
erly taken upon goods and chattels, by the legal
attachiators or bailiffs, as security to answer an
action for personal estate or debt.
ATTACHIAMENTA DE PLACITUS CORONAE.
Attachment of pleas of the crown. Jewison v.
Dyson, 9 Mees. & W. 544.
ATTACHIAMENTA DE SPINIS ET BOSCIS. A
privilege granted to the officers of a forest to take
to their own use thorns, brush, and windfalls,
within their precincts. Kenn.Par.Antiq. 209.
ATTACHIAMENTUM. L. Lat. An attachment.
ATTACHING CREDITOR. See Creditor.
ATTACHMENT. The act or process of taking,
apprehending, or seizing persons or property, by
virtue of a writ, summons, or other judicial order,
and bringing the same into the custody of the
law; used either for the purpose of bringing a
person before the court, of acquiring jurisdiction
over the property seized, to compel an appearance,
to furnish security for debt or costs, or to arrest
a fund in the hands of a third person who may be-
come liable to pay it over. Also the writ or other
process for the accomplishment of the purposes
above enumerated, this being the more common
use of the word. A remedy ancillary to an action
by which plaintiff is enabled to acquire a lien
upon property or effects of defendant for satis-
faction of judgment which plaintiff may obtain.
First Nat. Bank & Trust Co. of Vermillion v.
Kirby, 62 S.D. 489, 253 N.W. 616; Lipscomb v.
Rankin, Tex.Civ.App., 139 S.W.2d 367, 369. Though
sometimes called an ancillary or auxiliary pro-
ceeding, it is in all essential respects, a suit.
Farmers State Bank of Lexington v. Lemmer, 130
Neb. 211, 264 N.W. 415, 416.
The purpose is to take defendant's property into legal
custody, so that it may be applied on defendant's debt to
plaintiff when established. John Deere Plow Co. of St.
Louis v. L. D. Jennings, Inc., 203 S.C. 426, 27 S.E.2d 571,
572; Union Bank & Trust Co. v. Edwards, 281 Ky. 693, 137
23.W.2d 344, 348.
At common law, "attachment" was procedure whereby
sheriff was, commanded to attach a defendant who, after
Black's Law Dictionary Revised 4th Ed.-11
being personally served, disobeyed original writ of sum-
mons, by keeping certain of his goods which he would for-
feit if he did not appear, or by making him find securities
who would be amerced if he continued his nonappearance,
and, if after such attachment he still neglected to appear,
he would not only forfeit this security, but was compel-
lable by a writ of distringas infinite. Grimmett v. Barn-
well, 184 Ga. 461, 192 S.E. 191, 194, 116 A.L.R. 257.
Execution and attachment distinguished. See
Execution.
Persons
A writ issued by a court of record, commanding
the sheriff to bring before it a person who has
been guilty of contempt of court, either in neglect
or abuse of its process or of subordinate powers.
3 Bl.Comm. 280; 4 Bl.Comm. 283; Commonwealth
v. Shecter, 250 Pa. 282, 95 A. 468, 470.
Property
A species of mesne process, by which a writ is
issued at the institution or during the progress
of an action, commanding the sheriff to seize the
property, rights, credits, or effects of the defend-
ant to be held as security for the satisfaction of
such judgment as the plaintiff may recover. It is
principally used against absconding, concealed, or
fraudulent debtors. U. S. Capsule Co. v. Isaacs,
23 Ind.App. 533, 55 N.E. 832.
To Give Jurisdiction
Where the defendant is a non-resident, or be-
yond the territorial jurisdiction of the court, his
goods or land within the territory may be seized
upon process of attachment; whereby he will be
compelled to enter an appearance, or the court
acquires jurisdiction so far as to dispose of the
property attached. This is sometimes called "for-
eign attachment." Megee v. Beirne, 39 Pa. 50;
Bray v. McClury, 55 Mo. 128. In such a case, the
proceeding becomes in substance one in rem
against the attached property. St. John v. Par-
sons, 54 Ohio App. 420, 7 N.E.2d 1013, 1014.
Domestic and Foreign
In some jurisdictions it is common to give the
name "domestic attachment" to one issuing
against a resident debtor, (upon the special
ground of fraud, intention to abscond, etc.,) and
to designate an attachment against a non-resident,
or his property, as "foreign." Longwell v. Hart-
well, 30 A. 495, 164 Pa. 533; David E. Kennedy,
Inc. v. Schleindl, 290 Pa. 38, 137 A. 815, 816, 53
A.L.R. 1020.
But the term "foreign attachment" more properly
belongs to the process otherwise familiarly known as
"garnishment." It was a peculiar and ancient remedy
open to creditors within the jurisdiction of the city of
London, by which they were enabled to satisfy their own
debts by attaching or seizing the money or goods of the
debtor in the hands of a third person within the jurisdic-
tion of the city. Welsh v. Blackwell, 14 N.J.Law, 346.
This power and process survive in modern law, in all com-
mon-law jurisdictions, and are variously denominated.
"garnishment," "trustee process," or "factorizing." Rai-
guel v. McConnell, 25 Pa. 362, 363. A "foreign attachment"
is a mesne process issued to compel a foreign debtor to
appear to the suit of his creditor, while "attachment
execution" is a final process issued for the purpose of
enforcing a judgment already obtained. Williams v. Ricca,
324 Pa. 33, 187 A. 722, 723.
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ATTACHMENT
ATTACHMENT EXECUTION. A name given in
some states to a process of garnishment for the
satisfaction of a judgment. As to the judgment
debtor it is an execution; but as to the garnishee
it is an original process—a summons commanding
him to appear and show cause, if any he has, why
the judgment should not be levied on the goods
and effects of the defendant in his hands. Snider-
man v. Nerone, 7 A.2d 496, 499, 136 Pa.Super. 381.
ATTACHMENT OF PRIVILEGE. In English law.
A process by which a man, by virtue of his privi-
lege, calls another to litigate in that court to
which he himself belongs, and who has the privi-
lege to answer there. A writ issued to apprehend
a person in a privileged place. Termes de la Ley.
ATTACHMENT OF THE FOREST. One of the
three courts formerly held in forests. The high-
est court was called "justice in eyre's seat;" the
middle, the "swainmote;" and the lowest, the "at-
tachment." Manwood, 90, 99.
ATTAIN. To reach or come to by progression or
motion; to arrive at; as, to attain a ripe old age.
Watkins v. Metropolitan Life Ins. Co., 156 Kan.
27, 131 P.2d 722, 723.
ATTAINDER. That extinction of civil rights and
capacities which takes place whenever a person
who has committed treason or felony receives
sentence of death for his crime. 1 Steph.Com. 408;
1 Bish.Cr.L. § 641; State v. Hastings, 37 Neb. 96,
55 N.W. 781.
The effect of "attainder" upon such felon is, in general
terms, that all his estate, real and personal, is forfeited.
Caldwell v. Hill, 179 Ga. 417, 176 S.E. 381, 386, 98 A.L.R.
1124. It differs from conviction, in that it is after judg-
ment, whereas conviction is upon the verdict of guilty, but
before judgment pronounced, and may be quashed upon
some point of law reserved, or judgment may be arrested.
The consequences of attainder are forfeiture of property
and corruption of blood. 4 Bl.Comm. 380. At the common
law, attainder resulted in three ways, viz. : by confession,
by verdict, and by process or outlawry. The first case was
where the prisoner pleaded guilty at the bar, or having
fled to sanctuary, confessed his guilt and abjured the realm
to save his life. The second was where the prisoner
pleaded not guilty at the bar, and the jury brought in a
verdict against him. The third, when the person accused
made his escape and was outlawed. Coke, Litt. 391.
In England, by statute 33 & 34 Vict. c. 23, attainder upon
conviction, with consequent corruption of blood, forfeiture,
or escheat, is abolished. In the United States, the doctrine
of attainder is now, scarcely known, although during and
shortly after the Revolution acts of attainder were passed
by several of the states. The passage of such bills is
expressly forbidden by the constitution.
Bill of Attainder
A legislative act, directed against a designated
person, pronouncing him guilty of an alleged
crime, (usually treason,) without trial or convic-
tion according to the recognized rules of proce-
dure, and passing sentence of death and attainder
upon him.
"Bills of attainder," as they are technically called, are
such special acts of the legislature as inflict capital punish-
ments upon persons supposed to be guilty of high offenses,
such as treason and felony, without any conviction in the
ordinary course of judicial proceedings. If an act inflicts
a milder degree of punishment than death, it is called a
"bill of pains and penalties," but both are included in the
prohibition in the Federal constitution. Losier v. Sher-
man, 157 Kan. 153, 138 P.2d 272, 273; State v. Graves, 352
Mo. 1102, 182 S.W.2d 46, 54.
ATTAINT. Attainted, stained, or blackened.
In old English practice. A writ which lay to
inquire whether a jury of twelve men had given
a false verdict, in order that the judgment might
be reversed. 3 Bl.Comm. 402; Bract. fol. 288b-
292; Fleta, 1, 5, c. 22, § 8.
This inquiry was made by a grand assise or jury of
twenty-four persons, usually knights, and, if they found
the verdict a false one, the judgment was that the jurors
should become infamous, should forfeit their goods and
the profits of their lands, should themselves be imprisoned,
and their wives and children thrust out of doors, should
have their houses razed, their trees extirpated, and their
meadows plowed up, and that the plaintiff should be
restored to all that he lost by reason of the unjust verdict.
3 Bl.Comm. 404; Co.Litt. 294b.
ATTAINT D'UNE CAUSE, In French law. The
gain of a suit.
ATTEMPT.
In Civil Matters
In statutes and in cases other than criminal
prosecutions an "attempt" ordinarily means an
intent combined with an act falling short of the
thing intended. In re Bergland's Estate, 180 Cal.
629, 182 P. 277, 283, 5 A.L.R. 1363. It may be de-
scribed as an endeavor to do an act, carried be-
yond mere preparation, but short of execution.
Columbian Ins. Co. of Indiana v. Modern Laundry,
C.C.A.Minn., 277 F. 355, 358, 20 A.L.R. 1159.
In Criminal Law
An effort or endeavor to accomplish a crime,
amounting to more than mere preparation or
planning for it, which, if not prevented, would
have resulted in the full consummation of the
act attempted, but which, in fact, does not bring
to pass the party's ultimate design. Dooley v.
State, 27 Ala.App. 261, 170 So. 96, 98.
Acts amounting to mere preparation for commission of
crime, if unaccompanied by some overt act toward actual
commission, do not amount to an "attempt" and cannot be
punished as such. People v. Lombard, 131 Cal.App. 525, 21
P.2d 955. Implies an intent and an actual effort to carry
out or consummate the intent or purpose. Dooley v. State,
27 Ala.App. 261, 170 So. 96, 97, 98.
To constitute an act of attempt, the act must possess
four characteristics : First, it must be a step toward a
punishable offense ; second, it must be apparently (but not
necessarily in reality) adapted to the purpose intended;
third, it must come dangerously near to success; fourth,
it must not succeed. State v. Ainsworth, 146 Kan. 665, 72
P.2d 962.
ATTENDANT, n. One who owes a duty or service
to another, or in some sort depends upon him.
Termes de la Ley. One who follows and waits
upon another.
ATTENDANT, adj. Accompanying, or connected
with. Fletcher v. Winnfield Bottling Works, 160
La. 261, 107 So. 103, 104.
ATTENDANT TERMS. In English law, terms,
(usually mortgages,) for a long period of years,
which are created or kept outstanding for the
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ATTORNARE
purpose of attending or waiting upon and protect-
ing the inheritance. 1 Steph.Comm. 351.
A phrase used in conveyancing to denote estates which
are kept alive, after the objects for which they were orig-
inally created have ceased, so that they might be deemed
merged or satisfied, for the purpose of protecting or
strengthening the title of the owner. Abbott.
ATTENDED BY A PHYSICIAN. As used in ap-
plication for insurance, requires an attendance
with reference to some disease of a serious charac-
ter, affecting sound bodily health and does not
refer to a mere temporary indisposition or an ail-
ment trivial in its nature. Houston v. Metropoli-
tan Life Ins. Co., 232 Mo.App. 195, 97 S.W.2d 856,
861.
ATTENTAT. Lat. He attempts.
In the civil and canon law. Anything wrong-
fully innovated or attempted in a suit by an in-
ferior judge (or judge a quo) pending an appeal.
1 Addams, 22, note; Shelf.Mar. & Div. 562; Ay-
liffe, Parerg. 100.
ATTENTION. Consideration; notice. The phrase
"your bill shall have attention" was held to be
ambiguous and not to amount to an acceptance of
the bill. 2 B. & Aid. 113.
ATTERMINARE. In old English law. To put
off to a succeeding term; to prolong the time of
payment of a debt. Stat.Westm. 2, c. 4; Cowell;
Blount.
ATTERMINING. In old English law. A putting
off; the granting of a time or term, as for the
payment of a debt. Cowell.
ATTERMOIEMENT. In canon law. A making
terms; a composition, as with creditors. 7 Low.C.
272, 306.
ATTEST. To bear witness to; to bear witness
to a fact; to affirm to be true or genuine; to act
as a witness to; to certify; to certify to the veri-
ty of a copy of a public document; formally by
signature; to make solemn declaration in words
or writing to support a fact; to signify by sub-
scription of his name that the signer has witnessed
the execution of the particular instrument. Lind-
sey v. Realty Trust Co., Tex.Civ.App., 75 S.W.2d
322, 324; City Lumber Co. of Bridgeport v. Borsuk,
131 Conn. 640, 41 A.2d 775, 778.
Also the technical word by which, in the practice in
many of the states, a certifying officer gives assurance of
the genuineness and correctness of a copy. Thus, an
"attested" copy of a document is one which has been
examined and compared with the original, with a certifi-
cate or memorandum of its correctness, signed by the per-
sons who have examined it. Gerner v. Mosher, 58 Neb.
135, 78 N.W. 384, 46 L.R.A. 244.
ATTESTATION. The act of witnessing an instru-
ment in writing, at the request of the party mak-
ing the same, and subscribing it as a witness. In
re Jones' Estate, 101 Wash. 128, 172 P. 206, 207.
The act of witnessing the execution of a paper
and subscribing the name of the witness in testi-
mony of such fact. In re Carlson's Estate, 156
Or. 597, 68 P.2d 119, 121.
Execution and attestation are clearly distinct formalities ;
the former being the act of the party, the latter of the
witnesses only. Subscription differs from attestation, in
that the former is the mere manual or mechanical act of
signing—the act of the hand, whereas the latter signifies
the mental act of bearing witness to—the act of the senses.
In re Smith's Estate, 130 Neb. 739, 266 N.W. 611, 613.
ATTESTATION CLAUSE. That clause wherein
the witnesses certify that the instrument has been
executed before them, and the manner of the exe-
cution of the same.
In wills. A certificate certifying as to facts and
circumstances attending execution of will. In
re Bragg's Estate, 106 Mont. 132, 76 P.2d 57, 62.
ATTESTATION OF WILL. Act of witnessing
performance of statutory requirements to valid
execution. Davis v. Davis, Tex.Civ.App., 45 S.W.
2d 240, 241; Zaruba v. Schumaker, Tex.Civ.App.,
178 S.W.2d 542, 543.
There is some authority to the effect that there may be a
perfect attestation without subscription, on the theory that
attestation is mental, and subscription is mechanical. In
re Chambers' Estate, 187 Wash. 417, 60 P.2d 41, 44.
ATTESTED COPY. See Attest.
ATTESTING WITNESS. One who signs his name
to an instrument, at the request of the party or
parties, for the purpose of proving and identifying
it. In re McDonough's Estate, 193 N.Y.S. 734, 736,
201 App.Div. 203.
ATTESTOR. One who attests or vouches for.
ATTESTOR OF A CAUTIONER. In Scotch prac-
tice. A person who attests the sufficiency of a
cautioner, and agrees to become subsidiarie liable
for the debt. Bell.
ATTILE. In old English law. The rigging or fur-
niture of a ship. Jacob, L.Dict. Rigging; tackle.
Cowell.
ATTINCTA, L. Lat. An attaint, stain, or black-
ening; a conviction or finding of guilty of some
offense. Adams Gloss.
ATTORN. To turn over; to transfer to another
money or goods; to assign to some particular
use or service. Hemminger v. Klaprath, 15 N.J.
Misc. 163, 189 A. 363, 364. To consent to the trans-
fer of a rent or reversion. To agree to become
tenant to one as owner or landlord of an estate
previously held of another, or to agree to recog-
nize a new owner of a property or estate and
promise payment of rent to him. Hurley v. Stev-
ens, 220 Mo.App. 1057, 279 S.W. 720, 722.
Feudal Law
To turn over; to transfer to another money or
goods; to assign to some particular use or serv-
ice. 2 Bla.Comm. 288; 1 Spence, Eq.Jur. 137.
Where a lord aliened his seigniory, he might, with the
consent of the tenant, and in some cases without, attorn
or transfer the homage and service of the latter to the
alienee or new lord. Bract. fols. 81b, 82.
ATTORNARE, Lat. To attorn; to transfer or
turn over; to appoint an attorney or substitute.
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ATTORNARE
ATTORNARE REM. To turn over money or
goods, i. e., to assign or appropriate them to some
particular use or service.
ATTORNATO FACIENDO VEL RECIPIENDO.
An obsolete writ, which commanded a sheriff or
steward of a county court or hundred court to
receive and admit an attorney to appear for the
person that owed suit of court. Fitz.N.B. 156, 349.
ATTORNATUS. One who is attorne y , or put in
the place of another; a substitute; hence, an at-
torney. 7 C.J.S. p. 694.
ATTORNATUS FERE IN OMNIBUS PERSONAM
DOMINI REPRESENTAT. An attorney repre-
sents the person of his master in almost all re-
spects. Adams Gloss., citing Bract. fol. 342.
ATTORNE. L. Fr. In old English law. An at-
torney. Britt. c. 126.
ATTORNEY. In the most general sense this
term denotes an agent or substitute, or one who is
appointed and authorized to act in the place or
stead of another. Nardi v. Poinsatte, D.C.Ind.,
46 F.2d 347, 348. An agent, or one acting on be-
half of another. Sherts v. Fulton Nat. Bank of
Lancaster, 342 Pa. 337, 21 A.2d 18.
One who s put in place, stead, and turn of an-
other to ma lage his matters of law. Kaufman v.
Jurczak, 102 N.J.Eq. 66, 139 A. 716. An agent
employed by party to case to manage it for him.
McLyman v. Miller, 52 R.I. 374, 161 A. 111, 112.
When used with reference to the proceedings of courts,
or the transaction of business in the courts, the term
always means "attorney at law" (q. v.) unless a contrary
meaning is clearly indicated. In re Morse, 98 Vt. 85, 126
A. 550, 551, 36 A.L.R. 527.
"Lawyer" and "attorney" are synonymous. Peo-
ple v. Taylor, 56 Colo. 441, 138 P. 762, 763.
—Attorney ad hoc. See Ad Hoc.
—Attorney at large. In old practice. An attorney
who practiced in all the courts. Cowell.
—Attorney at law. An advocate, counsel, or offi-
cial agent employed in preparing, managing, and
trying cases in the courts. An officer in a court
of justice, who is employed by a party in a cause
to manage it for him. In re Bergeron, 220 Mass.
472, 107 N.E. 1007, 1008, Ann.Cas.1917A, 549.
In English law. A public officer belonging to the supe-
rior courts of common law at Westminster, who conducted
legal proceedings on behalf of others, called his clients,
by whom he was retained; he answered to the solicitor in
the courts of chancery, and the proctor of the admiralty,
ecclesiastical, Probate, and divorce courts. An attorney
was almost invariably also a solicitor. It is now provided
by the judicature act, 1873, § 87, that solicitors, attorneys,
Dr proctors of, or by law empowered to practice in, any
court the jurisdiction of which is by that act transferred
to the high court of justice or the court of appeal, shall
be called "so .citors of the supreme court." Wharton.
The term 'attorney at law," as used in the United
States, usua ly includes "barrister," "counsellor," and
"solicitor," in the sense in which those terms are used in
England. In some states, as well as in the United States
supreme court, "attorney" and "counsellor" are distin-
guishable, the former term being applied to the younger
members of the bar, and to those who carry on the prac-
tice and formal parts of the suit, while "counsellor" is the
adviser, or special counsel retained to try the cause. Rap.
& L.
—
Attorney in fact. A private attorney authorized
by another to act in his place and stead, either for
some particular purpose, as to do a particular act,
or for the transaction of business in general, not
of a legal character. This authority is conferred
by an instrument in writing, called a "letter of at-
torney," or more commonly a "power of at-
torney." Treat v. Tolman, C.C.A.N.Y., 113 F.
893, 51 C.C.A. 522; Massachusetts Bonding & In-
surance Co. v. Bankers' Surety Co., 96 Ind.App.
250, 179 N.E. 329, 334.
This term is employed to designate persons who act
under a special agency, or a special letter of attorney, so
that they are appointed in fact-um, for the deed, or special
act to be performed; but in a more extended sense it
includes all other agents employed in any business, or to do
any act or acts in pais for another. Bacon, Abr. Attor-
ney; Story, Ag. § 25.
—Attorney of record. Attorney whose name must
appear somewhere in permanent records or files
of case, or on the pleadings or some instrument
filed in the case, or on appearance docket. De-
laney v. Husband, 64 N.J.L. 275, 45 A. 265. Per-
son whom the client has named as his agent
upon whom service of papers may be made.
Reynolds v. Reynolds, 21 Ca1.2d 580, 134 P.2d 251,
254.
—Attorney of the wards and liveries. In English
law. This was the third officer of the duchy court.
Bac.Abr. "Attorney."
—Attorney's certificate. In English practice, a
certificate of the commissioners of stamps that
the attorney therein named has paid the annual
tax or duty. This must be renewed yearly; and
the penalty for practising without such certificate
is fifty pounds; Stat. 37 Geo. III. c. 90, §§ 26, 28,
30. See also 7 & 8 Vict. c. 73, §§ 21-26; 16 & 17
Vict. c. 63.
—Attorney's lien. See Attorney's Lien.
—Letter of attorney. A power of attorney; a
written instrument by which one person consti-
tutes another his true and lawful attorney, in or-
der that the latter may do for the former, and in
his place and stead, some lawful act. People v.
Smith, 112 Mich. 192, 70 N.W. 466, 67 Am.St.Rep.
392. An instrument of writing, appointing an at-
torney in fact for an avowed purpose and setting
forth his powers and duties. Mullins v. Common-
wealth, 179 Ky. 71, 200 S.W. 9, 11. It is, in effect,
a mere contract of agency. Filtsch v. Bishop, 118
Okl. 272, 247 P. 1110, 1111. A general power au-
thorizes the agent to act generally in behalf of
the principal. A special power is one limited to
particular acts.
—Power of attorney. Commonly meant the in-
strument by which authority of one person to act
in place and stead of another as attorney in fact
is set forth. In re Katz' Estate, 274 N.Y.S. 202,
152 Misc. 757.
—Public attorney. A name sometimes given to an
attorney at law, as distinguished from a private
attorney, or attorney in fact.
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AU
ATTORNEY GENERAL.
English Law
The chief law officer of the realm, being created
by letters patent, whose office is to exhibit infor-
mations and prosecute for the crown in matters
criminal, and to file bills in the exchequer in any
matter concerning the king's revenue. 3 Bla.
Comm. 27; Termes de la Ley; Wilentz v. Hen-
drickson, 133 N.J.Eq. 447, 33 A.2d 366, 374.
American Law
The attorney general of the United States is the
head of the department of justice, appointed by
the president, and a member of the cabinet. He
appears in behalf of the government in all cases
in the supreme court in which the government
is interested, and gives his legal advice to the
president and heads of departments upon ques-
tions submitted to him. Act of Sept. 24, 1789 (5
U.S.C.A. §§ 291, 303, 309).
He is the chief law officer of the federal and state gov-
ernments with the duty of representing the sovereign,
national or state. Johnson v. Commonwealth, ex rel.
Meredith, 291 Ky. 829, 165 S.W.2d 820, 826.
In each state also there is an attorney general,
or similar officer, who appears for the people, as
in England the attorney general appears for the
crown. State v. District Court, 22 Mont. 25, 55
Pac. 916; He is the chief law officer of the state
and head of the legal department. People v.
Newcomer, 284 Ill. 315, 120 N.E. 244, 247; Darling
Apartment Co. v. Springer, 22 A.2d 397, 403, 25
Del. 420, 137 A.L.R. 803.
ATTORNEY GENERAL'S BILL. An indictment
presented to grand jury by leave of court without
prior complaint before magistrate and holding
for court. Commonwealth v. Wilson, 134 Pa.
Super. 222, 4 A.2d 324, 327.
ATTORNEY'S LIEN. The right of an attorney at
law to hold or retain in his possession the money
or property of a client until his proper charges
have been adjusted and paid. It requires no eq-
uitable proceeding for its establishment. Sweeley
v. Sieman, 123 Iowa, 183, 98 N.W. 571. Also a
lien on funds in court payable to the client, or on
a judgment or decree or award in his favor, re-
covered through the exertions of the attorney, and
for the enforcement of which he must invoke the
equitable aid of the court. Fowler v. Lewis, 36 W.
Va. 112, 14 S.E. 447.
Charging lien. An attorney's lien, for his proper compen-
sation, on the fund or judgment which his client has recov-
ered by means of his professional aid and services. Good-
rich v. McDonald, 112 N.Y. 157, 19 N.E. 649; In re Craig,
157 N.Y.S. 310, 311, 171 App.Div. 218. It is a specific
lien covering only the services rendered by an attorney in
the action in which the judgment was obtained, whereas
a retaining lien is a general lien for the balance of the
account between the attorney and his client, and applies
to the property of the client which may come into the
attorney's possession in the course of his employment. In
re Heinsheimer, 143 N.Y.S. 895, 896, 159 App.Div. 33.
Retaining lien. The lien which an attorney has upon all
his client's papers, deeds, vouchers, etc., which remain in
his possession, entitling him to retain them until satisfac-
tion of his claims for professional services. In re Wilson,
D.C.N.Y., 12 F. 239; It is a general lien. Roxana Petro-
leum Co. v. Rice, 109 Okl. 161, 235 P. 502, 507.
ATTORNEYSHIP. The office of an agent or at-
torney.
ATTORNMENT. In feudal and old English law.
A turning over or transfer by a lord of the serv-
ices of his tenant to the grantee of his seigniory.
Attornment is the act of a person who holds a
leasehold interest in land, or estate for life or
years, by which he agrees to become the tenant
of a stranger who has acquired the fee in the land,
or the remainder or reversion, or the right to the
rent or services by which the tenant holds. Sny-
der v. Bernstein Bros., 201 Iowa, 931, 208 N.W. 503,
504. It is an act by which a tenant acknowledges
his obligation to a new landlord. Del-New Co. v.
James, 167 A. 747, 748, 111 N.J.L. 157.
And requires an overt act by the tenant. Hem-
minger v. Klaprath, 189 A. 363, 15 N.J.Misc. 163.
The doctrine of attornment grew out of the peculiar
relations existing between the landlord and his tenant
under the feudal law, and the reasons for the rule never
had any existence in this country, and is inconsistent with
our laws, customs and institutions. Beyond its application
to estop a tenant from denying the title of his landlord, it
can serve but little, if any, useful purpose. Perrin v. Lep-
per, 34 Mich. 292.
ATTRACTIVE AGENCIES DOCTRINE. See At-
tractive Nuisance Doctrine. Schock v. Ringling
Bros. and Barnum & Bailey Combined Shows,
5 Wash. 599, 105 P.2d 838, 843.
ATTRACTIVE INSTRUMENTALITIES DOC-
TRINE. See Attractive Nuisance Doctrine.
Schock v. Ringling Bros. and Barnum & Bailey
Combined Shows, 5 Wash.2d 599, 105 P.2d 838, 843.
ATTRACTIVE NUISANCE DOCTRINE. The doc-
trine is that one maintaining on his premises a
condition, instrumentality, machine or other agen-
cy, which is dangerous to young children because
of their inability to appreciate peril and may rea-
sonably be expected to attract them to premises,
owes duty to exercise reasonable care to protect
them against dangers of such attraction. Schock
v. Ringling Bros. and Barnum & Bailey Combined
Shows, 5 Wash.2d 599, 105 P.2d 838, 843.
The doctrine, is that person who has an instrumentality,
agency, or condition upon his own premises, or who cre-
ates such condition on the premises of another, or in a
public place, which may reasonably be apprehended to be
a source of danger to children, is under a duty to take such
precautions as a reasonably prudent man would take to
prevent injury to children of tender years whom he knows
to be accustomed to resort there, or who may, by reason
of something there which may be expected to attract
them, come there to play. Atlantic Coast Line R. Co. v.
O'Neal, 48 Ga.App. 706, 172 S.E. 740, 741. It does not
apply to natural condition or common dangers existing in
order of nature, McCall v. McCallie, 48 Ga.App. 99, 171 S.E.
843, 844, applies only in favor of children of tender years,
too young to appreciate danger. Drew v. Lett, 95 Ind. App.
89, 182 N.E. 547, 548. Requires that the attraction be visi-
ble from a public place or a place where children have a
right to be. Rokicki v. Polish Nat. Alliance of United
States of North America, 314 Ill.App. 380, 41 N.E.2d 300.
AU BESOIN. Fr. In case of need. "Au besoin
chez Messieurs  a ." "In case of need, ap-
ply to Messrs.  at ". A phrase some-
times used in the direction of a bill of exchange,
pointing out the person to whom application may
be made for payment in case of failure or refusal
of the drawee to pay. Story, Bills § 65.
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AUBAINE
AUBAINE. See Droit d'Aubaine.
AUCTION. A public sale of land or goods, at
public outcry, to the highest bidder. Perry Trad-
ing Co. v. City of Tallahassee, 128 Fla. 424, 174
So. 854, 857, 111 A.L.R. 463.
A sale by auction is a, sale by public outcry to the
highest bidder on the spot. Barber Lumber Co. v. Gifford,
25 Idaho, 654, 139 P. 557, 560.
While auction is very generally defined as a sale to the
highest bidder, and this is the usual meaning, there may
be a sale to the lowest bidder, as where land is sold for
non-payment of taxes to whomsoever will take it for the
shortest term; or where a contract is offered to the one
who will perform it at the lowest price. And these appear
fairly included In the term "auction." Abbott.
Dutch Auction
A method of sale by auction which consists in
the public offer of the property at a price beyond
its value, and then gradually lowering the price
until some one becomes the purchaser. Crandall
v. State, 28 Ohio St. 482.
Public Auction
A sale of property at auction, where any and
all persons who choose are permitted to attend
and offer bids. The phrase imports a sale to the
highest and best bidder with absolute freedom for
competitive bidding. State v. Miller, 52 Mont.
562, 160 P. 513, 515.
Though this phrase is frequently used, It is doubtful
whether the word "public" adds anything to the force of
the expression, since4"auction" itself imports publicity. If
there can be such a thing as a private auction, it must be
one where the property is sold to the highest bidder, but
only certain persons, or a certain class of persons, are
permitted to be present or to offer bids.
AUCTIONARLzE. Catalogues of goods for public
sale or auction.
AUCTIONARIUS. A seller; a regrator; a re-
tailer; one who bought and sold; an auctioneer,
in the modern sense. Spelman, Gloss. One who
buys poor, old, worn-out things to sell again at a
greater price. Du Cange.
AUCTIONEER. A person authorized or licensed
by law to sell lands or goods of other persons at
public auction; one who sells at auction. City of
Chicago v. Ornstein, 323 Ill. 258, 154 N.E. 100, 52
A.L.R. 489; One who sells goods at public auction
for another on commission, or for a recompense.
State ex rel. Danziger v. Recorder of Mortgages
for Parish of Orleans, 206 La. 259, 19 So.2d 129,
132.
Auctioneers differ from brokers, in that the latter may
both buy and sell, whereas auctioneers can only sell; also
brokers may sell by private contract only, and auctioneers
by public auction only. Auctioneers can only sell goods
for ready money, but factors may sell upon credit. Wilkes
v. Ellis, 2 H. BI. 557; Steward v. Winters, 4 Sandf.Ch.
(N. Y.) 590.
AUCTOR. In the Roman law. An auctioneer.
In the civil law. A grantor or vendor of any
kind.
In old French law. A plaintiff. Kelham.
AUCTORITAS. In the civil law. Authority.
In old European law. A diploma, or royal
charter. A word frequently used by Gregory of
Tours and later writers. Spelman.
AUCTORITATES PHILOSOPHORUM, MEDI-
CORUM, ET POETARUM, SUNT IN CAUSIS
ALLEGANDZE ET TENENDJE. The opinions of
philosophers, physicians, and poets are to be al-
leged and received in causes. Co.Litt. 264.
AUCUPIA VERBORUM SUNT JUDICE INDIG-
NA. Catching at words is unworthy of a judge.
Hob. 343. Applied in State v. Flemming, 66 Me.
142, 151, 22 Am.R. 552.
AUDI ALTERAM PARTEM. Hear the other side;
hear both sides. No man should be condemned
unheard. Broom, Max. 113; L.R. 2 P.C. 106; Low-
ry v. Inman, 46 N.Y. 119; Shaw v. Stone, 1 Cush.
(Mass.) 243.
AUDIENCE. In international law. A hearing;
interview with the sovereign. The king or other
chief executive of a country grants an audience
to a foreign minister who comes to him duly ac-
credited; and, after the recall of a minister, an
"audience of leave" ordinarily is accorded to him.
AUDIENCE COURT. In English law. A court
belonging to the Archbishop of Canterbury, hav-
ing jurisdiction of matters of form only, as the
confirmation of bishops, and the like. This court
has the same authority with the Court of Arches,
but is of inferior dignity and antiquity. The Dean
of the Arches is the official auditor of the Au-
dience court. The Archbishop of York has also
his Audience court.
AUDIENDO ET TERMINANDO. A writ or com-
mission to certain persons to appease and punish
any insurrection or great riot. Fitzh.Nat.Brev.
110.
AUDIT, n. The process of auditing accounts;
the hearing and investigation had before an audi-
tor. People v. Barnes, 114 N.Y. 317, 20 N.E. 609;
An official examination of an account or claim,
comparing vouchers, charges, and fixing the bal-
ance. Williams v. Tompkins, Tex.Civ.App., 42
S.W.2d 106, 110.
AUDIT, v. To hear; to examine an account; and
in a broad sense it includes its adjustment or al-
lowance, disallowance, or rejection. New York
Catholic Protectory v. Rockland County, 144 N.Y.
S. 552, 556, 159 App.Div. 455. An audience; a
hearing; an examination in general; a formal
or official examination and authentication of ac-
counts, with witnesses, vouchers, etc. Green-
Boots Const. Co. v. State Highway Commission,
165 Oki. 288, 25 P.2d 783.
Sometimes restricted to a mere mathematical calcula-
tion or process, but, in its generally accepted sense,
includes an investigation and weighing of the evidence and
deciding of whether entries in books are true and correct.
Lumber Mut. Casualty Ins. Co. of New York v. Horowitz,
1 N.Y.S.2d 191, 193, 165 Misc. 506.
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AUNCEL
AUDITA QUERELA. The name of a writ consti-
tuting the initial process in an action brought by
a judgment defendant to obtain relief against the
consequences of the judgment, on account of some
matter of defense or discharge, arising since its
rendition and which could not be taken advantage
of otherwise. Barnett v. Gitlitz, 290 Ill.App. 212,
8 N.E.2d 517, 520. May also lie for matters aris-
ing before judgment where defendant had no op-
portunity to raise such matters in defense. Louis
E. Bower, Inc., v. Silverstein, 298 Ill.App. 145, 18
N.E.2d 385, 387.
In some states, where the same relief may be obtained
by motion, the remedy by motion has superseded the
ancient remedy.
AUDITOR. A public officer whose function is to
examine and pass upon the accounts and vouchers
of officers who have received and expended pub-
lic money by lawful authority. An officer who
examines accounts and verifies the accuracy of
the statements therein. Hicks v. Davis, 100 Kan.
4, 163 P. 799.
General
Auditor of the imprest. Any of several officers
in the English exchequer, who formerly had the
charge of auditing the accounts of the customs,
naval and military expenses, etc., now performed
by the commissioners for auditing public accounts.
Jacob.
Auditor of the receipts. An officer of the Eng-
lish exchequer. 4 Inst. 107.
State auditor. An officer whose business is to
examine and certify accounts and claims against
the state and to keep an account between the state
and its treasurer. State v. Jorgenson, 29 N.D. 173,
150 N.W. 565, 567.
English Law
An officer or agent of the crown, or of a private
individual, or corporation, who examines periodi-
cally the accounts of under officers, tenants, stew-
ards, or bailiffs, and reports the state of their ac-
counts to his principal.
Practice
An officer (or officers) of the court, assigned to
state the items of debit and credit between the
parties in a suit where accounts are in question,
and exhibit the balance. Campbell v. Crout, 3
R.I. 60.
AUGMENTATION. The increase of the crown's
revenues from the suppression of religious houses
and the appropriation of their lands and revenues.
Also the name of a court (now abolished) erected
27 Hen. VIII., to determine suits and controversies
relating to monasteries and abbey-lands. The
court was dissolved in the reign of Mary, but the
office of augmentations remained long after.
Cowell.
A share of the great tithes temporarily granted
to the vicars by the appropriators, and made per-
petual by statute 29 Car. II. c. 8. The word is
used in a similar sense in the Canadian law.
AUGUSTA LEGIBUS SOLUTA NON EST. The
empress or queen is not privileged or exempted
from subjection to the laws. 1 Bl.Comm. 219;
Dig. 1, 3, 31.
AULA. In old English law. A hall, or court;
the court of a baron, or manor; a court baron.
Spelman.
This word was employed in mediaeval England along
with curia; it was used of the meetings of the lord's men
held there in the same way that the word court was used.
McIlwain, High Court of Parl. 30.
AULA ECCLESLE. A nave or body of a church
where temporal courts were anciently held.
AULA REGIS. (Called also Aula Regia.) The
king's hall or palace. The chief court of England
in early Norman times. It was established by
William the Conqueror in his own hall. It was
composed of the great officers of state, resident in
the palace, and followed the king's household in
all his expeditions. See, also, Curia Regis.
AULIC. Pertaining to a royal court.
AULIC COUNCIL. In the old German empire, the
personal council of the emperor, and one of the
two supreme courts of the empire which decided
without appeal. It was instituted about 1502, was
modified in 1654, and ceased to exist on the extinc-
tion of the German Empire in 1806. The title was
also given to the Council of State of the former
Emperor of Austria. Cent.Dict.
AULNAGE. See Alnager.
AULNAGER. See Alnager.
AUMEEN. In Indian law. Trustee; commission-
er; a temporary collector or supervisor, appointed
to the charge of a country on the removal of a
zemindar, or for any other particular purpose of
local investigation or arrangement.
AUMIL. In Indian law. Agent; officer; native
collector of revenue; superintendent of a district
or division of a country, either on the part of the
government zemindar or renter.
AUMILDAR. In Indian law. Agent; the holder
of an office; an intendant and collector of the rev-
enue, uniting civil, military, and financial powers
under the Mohammedan government.
AUMONE, SERVICE IN. Where lands are given
in alms to some church or religious house, upon
condition that a service or prayers shall be of-
fered at certain times for the repose of the do-
nor's soul. Britt. 164.
AUNCEL WEIGHT. In English law. An ancient
mode of weighing, described by Cowell as "a kind
of weight with scales hanging, or hooks fastened
to each end of a staff, which a man, lifting up
upon his forefinger or hand, discerneth the quality
or difference between the weight and the thing
weighed."
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AUNT
AUNT. The sister of one's father or mother, and
a relation in the third degree, correlative to niece
or nephew. See 2 Comyn, Dig. 474; Dane, Abr. c.
126, a. 3, § 4.
AURA EPILEPTICA. In medical jurisprudence,
a term used to designate the sensation of a cold
vapor frequently experienced by epileptics before
the loss of consciousness occurs in an epileptic fit.
Aurentz v. Anderson, 3 Pittsb.R. (Pa.) 311.
AURES. A Saxon punishment by cutting off the
ears, inflicted on those who robbed churches, or
were guilty of any other theft.
AURUM REGINAZE. Queen's gold. A royal reve-
nue belonging to every queen consort during her
marriage with the king.
AUSTRALIAN BALLOT. An official ballot on
which the names of all the candidates are printed.
Its use is accompanied by safeguards designed to
maintain secrecy in voting. The so-called Aus-
tralian ballot laws, widely adopted in various
forms in the United States, have generally been
sustained by the courts. 29 C.J.S. p. 224.
AUSTRALIAN WOOL. A fine grade of wool
grown in Australia. Federal Trade Commission
v. Winsted Hosiery Co., 42 S.Ct. 384, 385, 258 U.S.
483, 66 L.Ed. 729.
AUTER, Autre. L. Fr. Another; other. See
Autre.
AUTHENTIC. Genuine; true; real; pure; reli-
able; trustworthy; having the character and au-
thority of an original; duly vested with all nec-
essary formalities and legally attested; compe-
tent, credible, and reliable as evidence. Downing
v. Brown, 3 Colo. 590; Woods v. Jastremski, 201
La. 1092, 11 So.2d 4, 8.
AUTHENTIC ACT. In the civil law. An act
which has been executed before a notary or pub-
lic officer authorized to execute such functions, or
which is testified by a public seal, or has been ren-
dered public by the authority of a competent mag-
istrate, or which is certified as being a copy of a
public register. Nov. 73, c. 2; Cod. 7, 52, 6, 4, 21;
Dig. 22, 4; Mossier Acceptance Co. v. Osborne, La.
App., 14 So.2d 492, 493.
AUTHENTICATION. In the law of evidence.
The act or mode of giving authority or legal au-
thenticity to, a statute, record, or other written
instrument, or a certified copy thereof, so as to
render it legally admissible in evidence. Volo-
shin v. Ridenour, C.C.A.Canal Zone, 299 F. 134.
Verifications of judgments. Collette v. Hanson,
174 A. 466, 467, 133 Me. 146.
An attestation made by a proper officer by which he
certifies that a record is in due form of law, and that the
person who certifies it is the officer appointed so to do.
Acts done with a view of causing an instrument to be
known and identified.
AUTHENTICS. In the civil law. A Latin trans-
lation of the Novels of Justinian by an anony-
mous author; so called because the Novels were
translated entire, in order to distinguish it from
the epitome made by Julian. 1 Mackeldey, Civ.
Law, § 72. A collection of extracts made from
the Novels by a lawyer named Irnier, which he
inserted in the code at the places to which they
refer. These extracts have the reputation of not
being correct. Merlin, Rópert. Authentique.
AUTHENTICUM. In the civil law. An original
instrument or writing; the original of a will or
other instrument, as distinguished from a copy.
Dig. 22, 4, 2; Id. 29, 3, 12.
AUTHOR. One who produces, by his own intel-
lectual labor applied to the materials of his com-
position, an arrangement or compilation new in
itself. Lithographic Co. v. Sarony, 4 S.Ct. 279, 111
U.S. 53, 28 L.Ed. 349.
A beginner or mover of anything; hence efficient cause
of a thing ; creator ; originator ; a composer, as distin-
guished from an editor, translator or compiler. Remick
Music Corp. v. Interstate Hotel Co. of Neb., D.C.Neb., 58
F.Supp. 523, 531.
AUTHORITIES. Citations to statutes, precedents,
judicial decisions, and text-books of the law, made
on the argument of questions of law or the trial of
causes before a court, in support of the legal posi-
tions contended for, or adduced to fortify the
opinion of a court or of a text writer upon any
question.
AUTHORITY. Permission. People v. Howard, 31
Cal.App. 358, 160 P. 697, 701. Control over, juris-
diction. State v. Home Brewing Co. of Indian-
apolis, 182 Ind. 75, 105 N.E. 909, 916. Often synon-
ymous with power. State v. District Court of
Eighth Judicial Dist. in and for Natrona County,
33 Wyo. 281, 238 P. 545, 548. The power delegated
by a principal to his agent. Clark v. Griffin, 95
N.J.Law, 508, 113 A. 234, 235. The lawful delega-
tion of power by one person to another. Rucks-
Brandt Const. Co. v. Price, 165 Oki. 178, 23 P.2d
690, 692. Power of agent to affect legal relations
of principal by acts done in accordance with prin-
cipal's manifestations of consent to agent. In re
Fitzpatrick's Estate, Sur., 17 N.Y.S.2d 280, 288.
General
Authority by estoppel. Not actual, but apparent
only, being imposed on the principal because his
conduct has been such as to mislead, so that it
would be unjust to let him deny it. Moore v.
Switzer, 78 Colo. 63, 239 P. 874, 875. See Appar-
ent Authority.
Authority coupled with an interest. Authority
given to an agent for a valuable consideration, or
which forms part of a security. See Unger v.
Newlin Haines Co., 94 N.J.Eq. 458, 120 A. 331,
335.
Apparent authority. That which, though not
actually granted, the principal knowingly per-
mits the agent to exercise, or which he holds him
out as possessing. L. E. Mumford Banking Co. v.
Farmers' & Merchants' Bank of Kilmarnock, 116
Va. 449, 82 S.E. 112, 118. See Authority by Es-
toppel.
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AUTOMOBILE
Express authority. That given explicitly, either
In writing or orally. See Express Authority.
General authority. That which authorizes the
agent to do everything connected with a particular
business. Story, Ag. § 17. It empowers him to
bind his principal by all acts within the scope of
his employment; and it cannot be limited by any
private direction not known to the party dealing
with him. Paley, Ag. 199.
Implied authority. Actual authority circumstan-
tially proved. Koivisto v. Bankers' & Merchants'
Fire Ins. Co., 148 Minn. 255, 181 N.W. 580, 582.
That which the principal intends his agent to pos-
sess, and which is implied from the principal's
conduct. Moore v. Switzer, 78 Colo. 63, 239 P.
874, 875. It includes only such acts as are incident
and necessary to the exercise of the authority
expressly granted. Coulson v. Stevens, 122 Miss.
797, 85 So. 83, 85.
Limited authority. Such authority as the agent
has when he is bound by precise instructions.
Naked authority. That arising where the princi-
pal delegates the power to the agent wholly for
the benefit of the former.
Special authority. That which is confined to an
individual transaction. Whitehead v. Tuckett, 15
East, 400, 408. Such an authority does not bind
the principal, unless it is strictly pursued. Paley,
Ag. 202.
Unlimited authority. That possessed by an
agent when he is left to pursue his own discretion.
Governmental Law
Legal power; a right to command or to act;
the right and power of public officers to require
obedience to their orders lawfully issued in the
scope of their public duties.
In the English law relating to public adminis-
tration, an authority is a body having jurisdic-
tion in certain matters of a public nature.
AUTHORITY OF THE COURT. The official pow-
er of the court. In re Bassett, 15 N.Y.S.2d 737,
745, 172 Misc. 613.
AUTHORITY TO EXECUTE A DEED. Must be
given by deed. Blood v. Goodrich, 9 Wend. (N.Y.)
68, 75, 24 Am.Dec. 121.
AUTHORIZE. To empower; to give a right or
authority to act. Board of Com'rs of Sedgwick
County v. Toland, 121 Kan. 109, 245 P. 1019, 1021.
To clothe with authority, warrant, or legal power.
Arkansas & Memphis Ry. Bridge & Terminal Co.
v. State, 174 Ark. 420, 295 S.W. 378, 380. To per-
mit a thing to be done in the future. Gray v. Gill,
210 N.Y.S. 658, 660, 125 Misc. 70. It has a manda-
tory effect or meaning, implying a direction to
act. Quality Building & Securities Co. v. Bledsoe,
125 Cal.App. 493, 14 P.2d 128, 132.
"Authorized" is sometimes construed as equiva-
lent to "permitted"; Crecelius v. Chicago, M. &
St. P. Ry. Co., 274 Mo. 671, 205 S.W. 181, 186; and
sometimes as equivalent to "directed"; U. S. Sug-
ar Equalization Board v. P. De Ronde & Co., C.
C.A.Del., 7 F.2d 981, 986; or to similar mandatory
language. Catron v. Marron, 19 N.M. 200, 142
P. 380, 382. The word indicates merely possessed
of authority; that is, possessed of legal or right-
ful power, the synonym of which is "competency."
Doherty v. Kansas City Star Co., 143 Kan. 802, 57
P.2d 43, 45.
AUTO ACORDADO. In Spanish colonial law.
An order emanating from some superior tribunal,
promulgated in the name and by the authority of
the sovereign. Schm.Civil Law, 93.
AUTO LIVERY SERVICE. The business of fur-
nishing for hire an automobile with a chauffeur,
the car to be driven where the hirer directs. The
term is also applied to the business of leasing
driverless cars. See Collette v. Page, 44 R.I. 26,
114 A. 136, 18 A.L.R. 74.
See Automobile; Drive it Yourself Cars.
AUTO-OPTIC EVIDENCE. An exhibit of a thing
offered before jury as evidence to be seen through
jury's own eyes. Johnson v. State, 139 Tex.Cr.R.
279, 139 S.W.2d 579, 581. See, also, Autoptic
Proference.
AUTO STAGE. A motor vehicle used for the
purpose of carrying passengers, baggage, or
freight on a regular schedule of time and rates.
State v. Ferry Line Auto Bus Co., 99 Wash. 64,
168 P. 893, 894. See Automobile.
AUTOCRACY. The name of an unlimited mon-
archical government. A government at the will
of one man, (called an "autocrat,") unchecked by
constitutional restrictions or limitations.
AUTOGRAPH. One's handwriting.
AUTOGRAPHIC. Self-writing or self-recording.
In re Autographic Register Co., Cust. & Pat.App.,
39 F.2d 718.
AUTOMATIC. Having inherent power of action
or motion; self-acting or self-regulating; me-
chanical. American Roll Gold Leaf Co. v. W. H.
Coe Mfg. Co., C.C.A.R.I., 212 F. 720, 724.
AUTOMATISM. In medical jurisprudence, this
term is applied to actions or conduct of an indi-
vidual apparently occurring without will, purpose,
or reasoned intention on his part; a condition
sometimes observed in persons who, without
being actually insane, suffer from an obscuration
of the mental faculties, loss of volition or of mem-
ory, or kindred affections. "Ambulatory automa-
tism" describes the pathological impulse to pur-
poseless and irresponsible wanderings from place
to place often characteristic of patients suffering
from loss of memory with dissociation of person-
ality.
AUTOMOBILE. A vehicle for the transportation
of persons or property on the highway, carrying
its own motive power and not operated upon fixed
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AUTOMOBILE
tracks. Blashfield's Cyclopedia of Automobile
Law, vol. 1, c. 1, § 2.
A wheeled vehicle propelled by gasoline, steam,
or electricity. Stanley v. Tomlin, 143 Va. 187, 129
S.E. 379, 382. A self-propelled vehicle suitable for
use on a street or roadway. State v. Freels, 136
Tenn. 483, 190 S.W. 454; A vehicle designed main-
ly for the transportation of persons, equipped
with an internal combustion, hydrocarbon vapor
engine furnishing the motive power and forming
a structural portion thereof. American-La France
Fire Engine Co. v. Riordan, C.C.A.N.Y., 6 F.2d 964,
967. It is generic term, covering both trucks and
passenger cars. Wiese v. Polzer, 212 Wis. 337, 248
N.W. 113, 116.
For "Auto Stage," "Family Automobile Doc-
trine," "Family Car Doctrine," and "Family Pur-
pose Doctrine," see those titles.
Etymologically, the term might include any self-pro-
pelled vehicle, as an electric street car, or a motor boat,
but in popular and legal usage it is confined to a vehicle
for the transportation of persons or property on terrestrial
highways, carrying its own motive power and not operated
upon fixed tracks. Bethlehem Motors Corporation v. Flynt,
178 N.C. 399, 100 S.E. 693, 694. Synonymous with "motor
vehicle." State v. Ferry Line Auto Bus Co., 99 Wash. 64,
168 P. 893, 894. "Car" as substitute or synonym. Mon-
roe's Adm'r v. Federal Union Life Ins. Co., 251 Ky. 570, 65
S.W.2d 680, 681.
Taxicabs included. Navy Gas & Supply Co. v. Schoech,
105 Colo. 374, 98 P.2d 860, 864, 126 A.L.R. 1225. Trolley
vehicles or trolley busses excluded. City of Dayton v. Lie
Brosse, 62 Ohio St. 232, 23 N.E.2d 647, 650.
AUTOMOBILE GUEST. A person who is received
and entertained in the automobile of another.
Chanson v. Morgan's Louisiana & T. R. & S. S.
Co., 18 La.App. 602, 136 So. 647, 649. Linn v.
Nored, Tex.Civ.App., 133 S.W.2d 234, 237.
AUTONOMY. The political independence of a na-
tion; the right (and condition) of power of self-
government; the negation of a state of political
influence from without or from foreign powers.
Lieber, Civ.Lib.; Green v. Obergfell, 121 F.2d 46,
57, 73 App.D.C. 298.
AUTOPSY. The dissection of a dead body for the
purpose of inquiring into the cause of death. Pub.
St.Mass.1882, p. 1288. Sudduth v. Insurance Co.,
C.C.Ky., 106 F. 823. A post mortem examination
to determine the cause, seat, or nature of a dis-
ease. E. 0. Painter Fertilizer Co. v. Boyd, 93 Fla.
354, 114 So. 444, 445.
AUTOPTIC PROFERENCE. Proffering or pre-
senting in open court of articles for observation
or inspection of the tribunal. Kabase v. State, 31
Ala.App. 77, 12 So.2d 758, 764.
AUTRE. Fr. Another.
AUTRE ACTION PENDANT. In pleading. An-
other action pending. A species of plea in abate-
ment. 1 Chit.Pl. 454.
AUTRE DROIT. In right of another, e. g., a trus-
tee holds trust property in right of his cestui que
trust. A prochein amy sues in right of an infant.
2 Bl.Comm. 176.
AUTRE VIE. Another's life. A person holding an
estate for or during the life of another is called
a tenant "pur autre vie," or "pur terme d'autre
vie." Litt. § 56; 2 Bl.Comm. 120. See Estate Pur
Autre Vie.
AUTREFOIS. L. Fr. At another time; former-
ly; before; heretofore.
AUTREFOIS ACQUIT. Fr. Formerly acquitted.
In criminal law. The name of a plea in bar to a
criminal action, stating that the defendant has
been once already indicted and tried for the same
alleged offense and has been acquitted. Simco v.
State, 9 Tex.App. 348; State v. Bilton, 156 S.C. 324,
153 S.E. 269, 272.
AUTREFOIS ATTAINT. In criminal law. For-
merly attainted. A plea that the defendant has
already been attainted for one felony, and there-
fore cannot be criminally prosecuted for another.
4 Bl.Comm. 336; 12 Mod. 109; R. & R. 268. This
is not a good plea in bar in the United States, nor
in England in modern law. 1 Bish.Cr.L. § 692;
Singleton v. State, 71 Miss. 782, 16 So. 295, 42 Am.
St.Rep. 488.
AUTREFOIS CONVICT. Fr. Formerly convict-
ed. In criminal law. A plea by a criminal in bar
to an indictment that he has been formerly con-
victed of the same crime. 4 Bl.Comm. 336; 4
Steph.Comm. 404.
AUXILIARY. Aiding; attendant on; ancillary
(q. v.) ; as, an auxiliary bill in equity, an auxiliary
receiver. Buckley v. Harrison, 31 N.Y.S. 1001, '10
Misc. 683; Bowman v. Stark, Tex.Civ.App., 185
S.W. 921, 924. Synonymous with "subsidiary."
Baker v. Fenley, 128 S.W.2d 295, 298, 233 Mo.App.
998.
AUXILIATOR. Lat. Helper or assistant; the
word is closely related to the English word auxil-
iary. Esta Co. v. Burke, D.C.Pa., 257 F. 743, 746.
AUXILIUM. In feudal and old English law.
Aid; compulsory aid, hence a tax or tribute; a
kind of tribute paid by the vassal to his lord, be-
ing one of the incidents of the tenure by knight's
service. Spelman; Fitzh.Nat.Brev. 62.
AUXILIUM AD FILIUM MILITEM FACIENDUM
ET FILIAM MARITANDAM. An ancient writ
which was addressed to the sheriff to levy com-
pulsorily an aid towards the knighting of a son
and the marrying of a daughter of the tenants in
capite of the crown.
AUXILIUM CURVE. In old English law. A pre-
cept or order of court citing and convening a
party, at the suit and request of another, to war-
rant something. Kenn.Par.Ant. 477.
AUXILIUM REGIS. In English law. The king's
aid or money levied for the royal use and the pub-
lic service, as taxes granted by parliament. A
subsidy paid to the king. Spelman.
AUXILIUM VICE COMITI. An ancient duty paid
to sheriffs. Cowell.
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AVAIL OF MARRIAGE. In feudal law. The
right of marriage, which the lord or guardian in
chivalry had of disposing of his infant ward in
matrimony. A guardian in socage had also the
same right, but not attended with the same advan-
tage. 2 Bl.Comm. 88.
In Scotch law. A certain sum due by the heir
of a deceased ward vassal, when the heir became
of marriageable age. Ersk.Inst. 2, 5, 18.
AVAILABILITY FOR WORK. Within Unemploy-
ment Compensation Law requires no more than
availability for suitable work which claimant has
no good cause for refusing. Hagadone v. Kirk-
patrick, 66 Idaho 55, 154 P.2d 181, 182.
AVAILABLE. Suitable; usable. Lively v. Amer-
ican Zinc Co. of Tennessee, 137 Tenn. 261, 191 S.
W. 975, 979; Having sufficient force or efficacy;
effectual. Pittsburgh, C., C. & St. L. Ry. Co. v.
Broderick, 56 Ind.App. 58, 102 N.E. 887, 891.
AVAILABLE MEANS. This phrase, among mer-
cantile men, is a term well understood to be any-
thing which can readily be converted into money;
but it is not necessarily or primarily money itself.
McFadden v. Leeka, 48 Ohio St. 513, 28 N.E. 874;
Benedict v. Huntington, 32 N.Y. 224; Brigham v.
Tillinghast, 13 N.Y. 218.
AVAILS. Profits, proceeds, or use. In re Cough-
lin's Estate, 53 N.D. 188, 205 N.W. 14, 16; Cordes
v. Harding, 27 Cal.App. 474, 150 P. 650, 651. With
reference to wills, it means the corpus or pro-
ceeds of the estate after the payment of the debts.
1 Amer. & Eng.Enc.Law, 1039. See Allen v. De
Witt, 3 N.Y. 279; McNaughton v. McNaughton, 34
N.Y. 201.
AVAL. In French law. The guaranty of a bill
of exchange; so called because usually placed at
the foot or bottom (awl) of the bill. Story, Bills,
§§ 394, 454. 11 Harv.L.Rev. 55.
In Canadian law. The act of subscribing one's
signature at the bottom of a promissory note or
of a bill of exchange; properly an act of surety-
ship, by the party signing, in favor of the party
to whom the note or bill is given. 1 Low.Can.
221; 9 Low.Can. 360.
AVANTURE. L. Fr. Chance; hazard; mis-
chance.
AVARIA, AVARIE. Average; the loss and dam-
age suffered in the course of a navigation. Poth.
Mar.Louage, 105.
AVENAGE. A certain quantity of oats paid by a
tenant to his landlord as rent, or in lieu of some
other duties. Jacob, L.Dict.
AVENTURE, or ADVENTURE. A mischance
causing the death of a man, as where a person
is suddenly drowned or killed by any accident,
without felony. Co.Litt. 391; Whishaw.
AVENUE. Any broad passageway, bordered on
each side by trees. Greene v. Helme, 94 Vt. 392,
111 A. 557, 559. It may be synonymous with
"street" but not with "boulevard." City of St.
Louis v. Breuer, Mo.Sup., 223 S.W. 108, 110.
"Street," "avenue," "road," "public road," "county
road," and "public highway" are used indiscriminately in
legislation and judicial decisions. "Street" or "avenue"
commonly applies to a public highway in a village, town,
or city and "road" to a suburban highway, but there may
be "roads" in a city or town and "streets" and "avenues"
in the country. City of Spokane v. Spokane County, 179
Wash. 130, 36 P.2d 311, 313.
AVER. L. Fr. To have.
Aver et tener. In old conveyancing. To have
and to hold.
AVER, v. In pleading. To declare or assert; to
set out distinctly and formally; to allege.
In old pleacl:ng. To avouch or verify. Litt. §
691; Co.Litt. 362b. To make or prove true; to
make good or justify a plea.
AVER, n. In old English and French. Property;
substance, estate and particularly live stock or
cattle; hence a working beast; a horse or bul-
lock. Cowell; Kelham.
Aver corn. A rent reserved to religious houses,
to be paid in corn. Corn drawn by the tenant's
cattle. Cowell.
Aver land. In feudal law. Land plowed by the
tenant for the proper use of the lord of the soil.
Blount.
Aver penny. Money paid towards the king's
averages or carriages, and so to be freed thereof.
Termes de la Ley.
Aver silver. A custom or rent formerly so
called. Cowell.
AVERA. A day's work of a ploughman, formerly
valued at eight pence. Jacob, L.Dict.
AVERAGE. A mean proportion, medial sum or
quantity, made out of unequal sums or quantities.
Brisendine v. Skousen Bros., 48 Ariz. 416, 62 P.2d
326, 329, 112 A.L.R. 1089; Long v. Ottumwa Ry.
& Light Co., 162 Iowa, 11, 142 N.W. 1008, 1015.
In ordinary usage the term signifies the mean between
two or more quantities, measures, or numbers. If applied
to something which is incapable of expression in terms of
measure or amount, it signifies that the thing or person
referred to is of the ordinary or usual type.
Average charges. "Average charges for toll
and transportation" are understood to mean, and
do mean, charges made at a mean rate, obtained
by dividing the entire receipts for toll and trans.
portation by the whole quantity of tonnage car-
ried, reduced to a common standard of tons moved
one mile. Hersh v. Railway Co., 74 Pa. 190.
Average prices. Such as are computed on all
the prices of any articles sold within a certain pea
riod or district.
General average (also called "gross") consists
of expense purposely incurred, sacrifice made, or
damage sustained for the common safety of the
vessel, freight, and cargo, or the two of them, at
risk, and is to be contributed for by the several
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AVERAGE
interests in the proportion of their respective val-
ues exposed to the common danger, and ultimately
surviving, including the amount of expense, sacri-
fice, or damage so incurred in the contributory
value. Star of Hope v. Annan, 9 Wall. 203, 19 L.
Ed. 638; Lex Rhodia, Dig. 14, 2, 1.
"General average" is a contribution by the several inter-
ests engaged in a maritime venture to make good the loss
of one of them for the voluntary sacrifice of a part of the
ship or cargo to save the residue of the property and the
lives of those on board, or for extraordinary expenses nec
essarily incurred for the common benefit and safety of all.
California Canneries Co. v. Canton Ins. Office, 25 Cal.App.
303, 143 P. 549, 553. The law of general average is part of
the maritime law, and not of the municipal law, and
applies to maritime adventures only. Ralli v. Troop, 157
U.S. 386, 15 S.Ct. 657, 39 L.Ed. 742.
Gross average. More commonly called "general
average" ( q. v.). Where loss or damage occurs
to a vessel or its cargo at sea, average is the ad-
justment and apportionment of such loss between
the owner, the freight, and the cargo, in propor-
tion to their respective interests and losses, in or-
der that one may not suffer the whole loss, but
each contribute ratably. Coster v. Insurance Co.,
2 Wash.C.C. 51, 6 Fed.Cas. 611.
Particular average is a loss happening to the
ship, freight, or cargo which is not to be shared
by contribution among all those interested, but
must be borne by the owner of the subject to
which it occurs. It is thus called in contradistinc-
tion to general average. Bargett v. Insurance Co.,
3 Bosw. (N.Y.) 395.
Petty average denotes such charges and dis-
bursements as, according to occurrences and the
custom of every place, the master necessarily fur-
nishes for the benefit of the ship and cargo, ei-
ther at the place of loading or unloading, or on
the voyage; such as the hire of a pilot for con-
ducting a vessel from one place to another, tow-
age, light money, beaconage, anchorage, bridge
toll, quarantine and such like. Park, Ins. 100;
Le Guidon, c. 5, a. 13; Weyt, de A. 3, 4; Weskett,
art. Petty Av.; 2 Phill.Ins. § 1269, n. 1; 2 Arnould,
Mar.Ins. 927.
Simple average is the same as "particular aver-
age" (q. v.).
In maritime law. Loss or damage accidentally
happening to a vessel or to its cargo during a
voyage. Also a small duty paid to masters of
ships, when goods are sent in another man's ship,
for their care of the goods, over and above the
freight.
In old English law. A service by horse or
carriage, anciently due by a tenant to his lord.
Cowell. A labor or service performed with work-
ing cattle, horses, or oxen, or with wagons and
carriages. Spelman.
Stubble, or remainder of straw and grass left
in corn-fields after harvest. In Kent it is called
"gratten," and in other parts "roughings."
AVERIA. In old English law. A term applied
to working cattle, such as horses, oxen, etc.
AVERIA CARRUCAE. Beasts of the plow. 3 Bla.
Comm. 9; 4 Term, 566.
AVERIIS CAPTIS IN WITHERNAM. A writ
granted to one whose cattle were unlawfully dis-
trained by another and driven out of the county
in which they were taken, so that they could not
be replevied by the sheriff. Reg.Orig. 82.
AVERIUM. Lat. Goods; property. A beast of
burden. Spelman, Gloss.
AVERMENT. In pleading. A positive statement
of facts, in opposition to argument or inference. 1
Chit.P1. 320; Bacon, Abr. Pleas, B.
Averments were formerly said to be general and par-
ticular; but only particular averments are found in mod-
ern pleading. 1 Chit.P1. 277.
Immaterial and impertinent averments (which
are synonymous, 5 D. & R. 209) are those which
need not be made, and, if made, need not be
proved. Williamson v. Allison, 2 East, 446; Pan-
ton v. Holland, 17 Johns. (N.Y.) 92, 8 Am.Dec.
369.
Negative averments are those in which a nega-
tive is used.
Particular averments are the assertions of par-
ticular facts.
Unnecessary averments are statements of mat-
ters which need not be alleged, but which, if al.
leged, must be proved. Carth. 200.
In old pleading. An offer to prove a plea, or
pleading. The concluding part of a plea, replica-
tion, or other pleading, containing new affirma-
tive matter, by which the party offers or declares
himself "ready to verify."
AVERRARE. In feudal law. A duty required
from some customary tenants, to carry goods in
a wagon or upon loaded horses. Jacob, L.Dict.
AVERSIO. In the civil law. An averting or turn-
ing away. A term applied to a species of sale in
gross or bulk.
Letting a house altogether, instead of in chain
bers. 4 Kent, Comm. 517.
AVERSIO PERICULI. A turning away of peril.
Used of a contract of insurance. 3 Kent, Comm.
263.
AVERUM. Goods, property, substance; a beast
of burden. Spelman.
AVET. A term used in the Scotch law, signifying
to abet or assist. Tomlin, Diet.
AVIA. In the civil law. A grandmother. Inst.
3, 6, 3.
AVIATICUS. In the civil law. A grandson.
AVIATION. The art of flying, especially the
management of airplanes; the act, art or science
of flying by mechanical means, especially with
machines heavier than air. Massachusetts Pro-
tective Ass'n v. Bayersdorfer, C.C.A.Ohio, 105 F.
2d 595, 597; Spychala v. Metropolitan Life Ins.
Co., 339 Pa. 237, 13 A.2d 32, 33.
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AVULSION
AVIATION, ENGAGED EN. The phrase "engaged
in aviation" within the meaning of an insurance
policy denotes the act of flying in the air in a
machine heavier than air, whether piloting or
riding as a passenger. Masonic Acc. Ins. Co. v.
Jackson, Ind.App., 147 N.E. 156. See Aeronautics.
AVIZANDUM. In Scotch law. To make avizan-
dum with a process is to take it from the public
court to the private consideration of the judge.
Bell.
AVOCAT. Fr. An advocate; a barrister.
AVOCATION. A calling away, a diversion, sug-
gesting idea of smaller affairs of life, or occasion-
al employments as distinguished from one's ordi-
nary or principal occupation. Bullitt v. Dela-
ware Bus Co., Del., 180 A. 519, 522, 7 W.W.Harr.
62; a subordinate or occasional occupation. Mu-
tual Life Ins. Co. of New York v. Enecks, 41 Ga.
App. 644, 154 S.E. 198, 199.
AVOID. To annul; cancel; make void; to de-
stroy the efficacy of anything. To evade; escape.
Graves v. Apt, 233 Mass. 587, 124 N.E. 432, 433.
But it has no sinister meaning, and does not imply
subterfuge or artifice in escape. Booth v. Scott,
276 Mo. 1, 205 S.W. 633, 639.
AVOIDABLE CONSEQUENCES, DOCTRINE OF.
Doctrine imposes duty on person injured to mini-
mize damages. Reavis v. Raylor, Tex.Civ.App.,
162 S.W.2d 1030, 1037; Lips v. Opp, 96 P.2d 865,
867, 150 Kan. 745.
AVOIDANCE. A making void, useless, empty, or
of no effect; annulling, cancelling; escaping or
evading.
English Ecclesiastical Law
The term describes the condition of a benefice
when it has no incumbent.
Parliamentary Language
Avoidance of a decision signifies evading or
superseding a question, or escaping the coming
to a decision upon a pending question. Holthouse.
Pleading
The allegation or statement of new matter, in
opposition to a former pleading, which, admitting
the facts alleged in .such former pleading, shows
cause why they should not have their ordinary
legal effect. Mahaiwe Bank v. Douglass, 31 Conn.
175. See Confession and Avoidance.
AVOIRDUPOIS. The name of a system of
weights (sixteen ounces to the pound) used in
weighing articles other than medicines, metals,
and precious stones; so named in distinction from
the Troy weight.
AVOUCELER. The calling upon a warrantor of
lands to fulfill his undertaking. See Voucher.
AVOUE. In French and Canadian law. A bar-
rister, advocate, solicitor, or attorney. An officer
charged with representing and defending parties
before the tribunal to which he is attached. Du-
verger.
AVOW. In pleading. To acknowledge and justify
an act done. 3 Bla.Comm. 150. To make an avow-
ry. Tleeta, 1.1, c. 4, Cunningham, Dict. See
Avowry; Justification.
For example, when replevin is brought for a thing dis-
trained, and the party taking claims that he had a right
to make the distress, he is said to avow. Newell Mill Co.
v. Muxlow, 115 N.Y. 170, 21 N.E. 1048.
AVOWAL. An open declaration. Purpose is to
enable the court to know what the witness would
have stated in answer to the question propounded,
and to inform the court what the interrogator
would prove contrary to the testimony given at
the trial. Fennell v. Frisch's Adm'r., 192 Ky. 535,
234 S.W. 198 (1921) ; Robertson v. Commonwealth,
269 Ky. 317, 107 S.W.2d 292 ,(1937). See Clay,
Kentucky Practice, Rule 43.10. Fed.R.Civ.P. 43 (c).
AVOWANT. One who makes an avowry.
AVOWEE. In ecclesiastical law. An advocate of
a church benefice.
AVOWRY. A pleading in the action of replevin,
by which the defendant avows, that is, acknowl-
edges, the taking of the distress or property
complained of, where he took it in his own right,
and sets forth the reason of it; as for rent in ar-
rear, damage done, etc. 3 Bl.Comm. 149; 1 Tidd
Pr. 645. L. A. W. Acceptance Corporation v. Cher-
nick, 143 A. 783, 784, 49 R.I. 434.
Avowry is the setting forth, as in a declaration, the
nature and merits of the defendant's case, showing that
the distress taken by him was lawful, which must be done
with such sufficient authority as will entitle him to a
retorno habendo. Wilhem v. Boyd, 172 Md. 79, 190 A. 823,
826.
An avowry must be distinguished from a justification.
The former species of plea admits the plaintiff's owner-
ship of the property, but alleges a right in the defendant
sufficient to warrant him in taking the property and which
still subsists.  A justification, on the other hand, denies
that the plaintiff had the right of property or possession in
the subject-matter, alleging it to have been in the defend-
ant or a third person, or avers a right sufficient to warrant
the defendant in taking it, although such right has not
continued in force to the time of making answer. See 2
W.Jones, 25.
AVOWTERER. In English law. An adulterer
with whom a married woman continues in adul-
tery. Termes de la Ley.
AVOWTRY. In old English law. Adultery.
Termes de la Ley.
AVULSION. The removal of a considerable quan-
tity of soil from the land of one man, and its de-
posit upon or annexation to the land of another,
suddenly and by the perceptible action of water.
2 Washb.Real Prop. 452; Wharton. Rees v. Mc-
Daniel, 115 Mo. 145, 21 S.W. 913; Schwartzstein
v. B. B. Bathing Park, 197 N.Y.S. 490, 492, 203 App.
Div. 700; Conkey v. Knudsen, 143 Neb. 5, 8 N.W.
2d 538, 542.
A sudden abandonment of an old channel and the crea,
tion of a new one. Harper v. Holston, 119 Wash. 436, 205
P. 1062, 1064.
Where running streams are the boundaries between
states, the same rule applies as between private proprie-
tors, and, if the stream from any cause, natural or arti-
ficial, suddenly leaves its old bed and forms a new one by
the process known as "avulsion," the resulting change of
channel works no change of boundary, which remains in
the middle of the old channel though no water may be
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AVULSION
flowing in it and irrespective of subsequent changes in the
new channel. State of Arkansas v. State of Tennessee, 246
U.S. 158, 38 S.Ct. 301, 304, 62 L.Ed. 638, L.R.A.1918D, 258;
Stull v. U. S., C.C.A.Neb., 61 F.2d 826, 830.
To constitute "avulsion," rather than "accretion," so as
to preclude change in boundary between riparian owners,
it is not necessary that soil washed away be identifiable;
it being sufficient that change is so sudden that owner of
land washed away is able to point out approximately as
much land added to opposite bank as he had washed away.
60 Okl.St.Ann. §§ 335, 336. Goins v. Merryman, 183 Old.
155, 80 P.2d 268.
See Accretion; Alluvion; Reliction.
AVUNCULUS. In the civil law. A mother's
brother. 2 Bl.Comm. 230. Avunculus magnus, a
great-uncle. Avunculus major, a great-grand-
mother's brother. Avunculus maximus, a great-
great-grandmother's brother. See Dig. 38, 10,
10; Inst. 3, 6, 2.
AVUS. In the civil law. A grandfather. Inst.
3, 6, 1.
AWAIT. Used in old statutes to signify a lying
in wait, or waylaying.
AWARD, v. To grant, concede, or adjudge to.
To give or assign by sentence or judicial determi-
nation. Hobson v. Superior Court of Tulare Coun-
ty, 69 Cal.App. 60, 230 P. 456, 457. Thus, a jury
awards damages; the court awards an injunction.
Starkey v. Minneapolis, 19 Minn. 206 (Gil. 166).
One awards a contract to a bidder. Jackson v.
State, 194 Ind. 130, 142 N.E. 1, 2, (holding that a
finding that a contract was "awarded to" a bidder
meant it was entered into with all required legal
formalities).
AWARD, n. The decision or determination ren-
dered by arbitrators or commissioners, or other
private or extrajudicial deciders, upon a contro-
versy submitted to them; also the writing or doc-
ument embodying such decision. Keiser v. Berks
County, 253 Pa. 167, 97 A. 1067, 1068.
Under Workmen's Compensation Acts, the term may be
used in the above sense, as signifying a decision or deter-
mination of the Industrial Board, or some equivalent body.
Frankfort General Ins. Co. v. Conduitt, 74 Ind.App. 584, 127
N.E. 212, 215. It may also be used to refer to the amount
of compensation fixed by the board, an "award" being an
amount fixed by arbitration. Odrowski v. Swift & Co., 99
Kan. 163, 162 P. 268, 269. Hence, a compensation agree-
ment, which is not approved by the Industrial Board, is
not an award. Bruce v. Stutz Motor Car Co. of America,
83 Ind.App. 257, 148 N.E. 161, 162.
A judgment, sentence, or final decision. Higginbotham
v. State, 20 Ala.App. 159, 101 So. 166. A finding or judg-
ment based upon an appraisement. Riddell v. Rochester
German Ins. Co. of New York, 36 R.I. 240, 89 A. 833, 835.
See Arbitration.
AWAY-GOING CROP. A crop sown before the
expiration of a tenancy, which cannot ripen until
after its expiration to which, however, the tenant
is entitled. Broom, Max. 412; Miller v. Gray, Tex.
Civ.App., 108 S.W.2d 265, 267, 268.
AWM. Also aum or awme. In old English stat-
utes. A measure of wine, or vessel containing
forty gallons.
AWN-HINDE. See Third-Night-Awn-Hinde.
AXIOM. In logic. A self-evident truth; an in-
disputable truth.
AXMINSTER. The trade-name of a certain kind
of rug. The term now generally includes the ma-
chine-made product as well as the handmade.
Beuttell & Sons v. U. S., 8 Ct.Cust.App. 409, 412.
AYANT CAUSE. In French law, and also in
Louisiana, this term signifies one to whom a right
has been assigned, either by will, gift, sale, ex-
change, or the like; an assignee. An avant
cause differs from an heir who acquires the right
by inheritance. 8 Toullier, n. 245.
AYLE. See Aiel.
AYRE. In old Scotch law. Eyre; a circuit or
iter.
AYUNTAMIENTO. In Spanish law. A congress
of persons; the municipal council of a city or
town. 1 White, Coll. 416; Friedman v. Goodwin,
9 Fed.Cas. 818; Strother v. Lucas, 12 Pet. 442, 9
L.Ed. 1137, notes.
AZURE. A term used in heraldry, signifying
blue.
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BACKSIDE
B. The second letter of the English alphabet; is
used to denote the second of a series of pages,
notes, etc.; the subsequent letters, the third and
following numbers.
B. C. An abbreviation for "before Christ," "bail.
court," "bankruptcy cases," and "British Colum-
bia."
B. D. S. A. Business and Defense Services Ad-
ministration.
B. E. An abbreviation for "Baron of the Court of
Exchequer."
B. F. An abbreviation for bonum factum, a good
or proper act, deed, or decree; signifies "ap-
proved."
B. L. S. Bureau of Labor Statistics.
B. R. An abbreviation for Bancus Regis, (King's
Bench,) or Bancus Regina (Queen's Bench.) It
is frequently found in the old books as a designa-
tion of that court. In more recent usage, the ini-
tial letters of the English names are ordinarily
employed, i. e., K. B. or Q. B.
B. S. Bancus Superior, that is, upper bench.
B— S—. Designation of statements of another as
b— s— carried the implications that they were
absurd and fanciful. People v. Nitti, 312 Ill. 73,
143 N.E. 448, 456.
BABBITT. To line or furnish with "babbitt met-
al," which is a soft white anti-friction metal, of
varying compositions, or any of several alloys sim-
ilarly used. Ingersol v. National Sash & Door
Factory, 134 La. 19, 63 So. 609, 610.
"BABY ACT." A plea of infancy, interposed for
the purpose of defeating an action upon a con-
tract made while the person was a minor, is vul-
garly called "pleading the baby act.- By exten-
sion, the term is applied to a plea of the statute
of limitations.
BACHELERIA. In old records. Commonalty or
yeomanry, in contradistinction to baronage.
BACHELOR. One who has taken the first degree
(baccalaureate) in the liberal arts and sciences,
or in law, medicine, or divinity, in a college or uni-
versity.
A man who has never been married.
A kind of inferior knight; an esquire.
BACK, v. To indorse; to sign on the back; to
sign generally by way of acceptance or approval.
Where a warrant issued in one county is present-
ed to a magistrate of another county and he signs
it for the purpose of making it executory in his
county, he is said to "back" it. 4 Bl.Comm. 291.
This custom prevails in England, Scotland, and
some of the United States. So an indorser of a
note or bill is colloquially said to "back" it. Sea-
bury v. Hungerford, 2 Hill (N.Y.) 80.
BACK, adv. To the rear; backward; in a re-
verse direction. Also, in arrear.
BACK CARRY. In forest law, the crime of hav-
ing, on the back, game unlawfully killed. See
Backbear.
BACK LANDS. A term of no very definite im-
port, but generally signifying lands lying back
from (not contiguous to) a highway or a water
course. See Ryerss v. Wheeler, 22 Wend. (N.Y.)
150.
BACK TAXES. Those assessed for a previous
year or years and remaining due and unpaid from
the original tax debtor. M. E. Church v. New
Orleans, 107 La. 611, 32 So. 101.
BACKADATION. See Backwardation.
BACKBEAR. In forest law. Carrying on the
back. One of the cases in which an offender
against vert and venison might be arrested, as
being taken with the mainour, or manner, or
found carrying a deer off on his back. Manwood;
Cowell.
BACKBEREND (also Backberende). Sax. Bear-
ing upon the back or about the person. Applied
to a thief taken with the stolen property in his
immediate possession. Bract. 1, 3, tr. 2, c. 32.
Used with handhabend, having in the hand.
BACKBOND. A bond of indemnification given to
a surety.
In Scotch law. A deed attaching a qualification
or condition to the terms of a conveyance or other
instrument. This deed is used when particular
circumstances render it necessary to express in
a separate form the limitations or qualifications
of a right. Bell. The instrument is equivalent to
a declaration of trust in English conveyancing.
BACKING. Indorsement; indorsement by a mag-
istrate. Gondas v. Gondas, 99 N.J.Eq. 473, 134 A.
615, 617.
BACKING A WARRANT. See Back.
BACK-SEAT DRIVER. A highly nervous pas-
senger whether sitting in rear or by driver, who
by unwarranted advice and warnings interferes
in careful operation of automobile. Winters v.
York Motor Express Co., 116 Pa.Super. 421, 176
A. 812, 815.
BACKSIDE. In English law. A term formerly
used in conveyances and also in pleading; it im-
ports a yard at the back part of or behind a house,
and belonging thereto.
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BACKWARDATION (also called Backadation).
In the language of the stock exchange, this term
signifies a consideration paid for delay in the de-
livery of stock contracted for, when the price is
lower for time than for cash. Dos Passos, Stock-
Brok. 270.
BACKWARDS. In a policy of marine insurance,
the phrase "forwards and backwards at sea"
means from port to port in the course of the
voyage, and not merely from one terminus to the
other and back. 1 Taunt. 475.
BACKWATER. Water in a stream which, In
consequence of some dam or obstruction below, is
detained or checked in its course, or flows back.
Webster v. North Poudre Irr. Co., 74 Colo. 565, 223
P. 36. Water caused to flow backward from a
steam-vessel by reason of the action of its wheels
or screw.
BACULUS. A rod, staff, or wand, used in old
English practice in making livery, of seisin where
no building stood on the land, (Bract. 40;) a stick
or wand, by the erection of which on the land in-
volved in a real action the defendant was sum-
moned to put in his appearance; this was called
"baculus nuntiatorius." 3 B1.Comm. 279.
BAD. Vicious, evil, wanting in good qualities;
the reverse of good. Davis v. Pennsylvania Co.
for Insurances on Lives and Granting Annuities,
337 Pa. 456, 12 A.2d 66, 68. Defective, faulty,
inferior, or imperfect. Kniffley v. Reid, 152 S.W.
2d 615, 616, 287 Ky. 212. The technical word for
unsoundness in pleading.
BAD BEHAVIOR. Where a judgment in a cram.
inal case has been suspended on condition of good
behavior, the term "good behavior" means con-
duct that is authorized by law, and "bad behavior"
means conduct such as the law will punish. State
v. Hardin, 183 N.C. 815, 112 S.E. 593, 594.
BAD DEBT. Generally speaking, one which is un-
collectible.
BAD FAITH. The opposite of "good faith," gen-
erally implying or involving actual or constructive
fraud, or a design to mislead or deceive another,
or a neglect or refusal to fulfill some duty or
some contractual obligation, not prompted by an
honest mistake as to one's rights or duties, but by
some interested or sinister motive. State v. Grif-
fin, 100 S.C. 331, 84 S.E. 876, 877; Penn Mut. L.
Ins. Co. v. Mechanics' Savings Bank & Trust Co.,
C.C.A.Tenn., 73 F. 653, 19 C.C.A. 316, 38 L.R.A. 33,
70; Spiegel v. Beacon Participations, 297 Mass.
398, 8 N.E.2d 895, 907.
BAD MOTIVE. Intentionally doing a wrongful
act knowing at the time that it is wrongful. Luh-
mann v. Schaefer, Mo.App., 142 S.W.2d 1088, 1090;
Davis v. Nash Central Motors, Mo.App., 332 S.W.
2d 475, 480.
BAD PLACE. Under a contract requiring the em-
ployer to timber all bad places in the mine unless
caused by the miner's negligence, a "bad place"
was a place in the roof which could not be made
reasonably safe by the ordinary propping usually
done by the miner himself. W. G. Duncan Coal
Co. v. Thompson's Adm'r, 157 Ky. 304, 162 S.W.
1139, 1140.
BAD TITLE. One which conveys no property to
the purchaser of the estate; one which is so radi-
cally defective that it is not marketable, and
hence such that a purchaser cannot be legally
compelled to accept it. Heller v. Cohen, 15 Misc.
378, 36 N.Y.S. 668.
BADGE. A mark or cognizance worn to show the
relation of the wearer to any person or thing; the
token of anything; a distinctive mark of office or
service.
BADGE OF FRAUD. A term used relatively to
the law of fraudulent conveyances made to hinder
and defraud creditors. It is defined as a fact tend-
ing to throw suspicion upon a transaction, and
calling for an explanation. Bump, Fraud.Conv.
31; Phelps v. Samson, 113 Iowa, 145, 84 N.W. 1051.
It is a suspicious circumstance that overhangs a
transaction, or appears on the face of the papers,
Toone v. Walker, 115 Okl. 289, 243 Pa. 147, 148.
A circumstance which does not alone prove fraud,
but which warrants inference of fraud, especially
where there is a concurrence of many such
badges. Brennecke v. Riemann, Mo., 102 S.W.2d
874, 877, 109 A.L.R. 1214.
Recognized "badges of fraud" include fictitious consid-
eration, false statements as to consideration, transactions
different from usual course of doing business, transfer of -
all of a debtor's property, insolvency, confidential relation-
ship of parties, and transfers in anticipation of suit or
execution. Hendrix v. Goldman, Mo., 92 S.W.2d 733, 736.
BADGER. In old English law. One who made
a practice of buying corn or victuals in one place,
and carrying them to another to sell and make
profit by them.
BAG. A sack or satchel. A certain and custo-
mary quantity of goods and merchandise in a
sack. Wharton. An uncertain quantity of goods
and merchandise, from three to four hundred.
Jacob.
BAGA. In English law. A bag or purse. Thus-
there is the petty-bag-office in the common-law ju-
risdiction of the court of chancery, because all
original writs relating to the business of the
crown were formerly kept in a little sack or bag,
in parva bagel. 1 Madd.Ch. 4.
BAGAVEL. The citizens of Exeter had granted
to them by charter from Edward I. the collection
of a certain tribute or toll upon all manner of
wares brought to that city to be sold, toward the
paving of the streets, repairing of the walls, and
maintenance of the city, which was commonly
called bagavel, bethugavel and chippinggavel.
Antiq. of Exeter.
BAGGAGE. In the law of carriers, this term,
comprises such articles of personal convenience or
necessity as are usually carried by passengers for
their personal use. It includes whatever the pas-
senger takes with him for his personal use or con-
venience according to the habits or wants of the
particular class to which he belongs, either with
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reference to the immediate necessities or ultimate
purpose of the journey. Texas & P. Ry. Co. v..
Bryant, Tex.Civ.App., 11 S.W.2d 659, 660
Thus, jewelry suitable to the condition in life of the pas-
senger and intended for personal use on the journey is
"baggage." Missouri Pac. R. Co. v. Pugh, 157 Ark. 383,
248 S.W. 897. But it is not baggage where carried by a
traveler for the use of another or for the purpose of busi-
ness or sale. Illinois Cent. R. Co. v. Fontaine, 217 Ky.
211, 289 S.W. 263, 266, 52 A.L.R. 1064.
A multitude of objects have been held to be baggage;
e. g., razors in a trunk checked by a male passenger, San
Antonio & A. P. Ry. Co. v. Green, Tex.Civ.App., 170 S.W.
110, 111, and a thimble carried in her trunk by the mother
of two small children, Louisville & N. R. Co. v. Hestle, 200
Ala. 137, 75 So. 885, 887. Other articles have been held not
to be baggage, such as stocks and bonds, Jandorf v. Pull-
man Co., 171 N.Y.S. 321, 322, 104 Misc. 79; a gun and gun
case, not connected with the purpose of the trip, House v.
Chicago & N. W. Ry. Co., 32 S.D. 209, 142 N.W. 736, 738;
and an article for use in housekeeping after the end of a
passenger's journey, Louisville & N. R. Co. v. Fletcher, 194
Ala. 257, 69 So. 634, 635.
BAGGAGE CAR. A closed car in a passenger
train used to transport the property of the passen-
gers. Ward v. Gulf, M. & N. R. Co., 23 Tenn.App.
533, 134 S.W.2d 917.
BAGGAGE CAR SERVICE. A service rendered
in such car in connection with the transportation
of passengers by a passenger train movement or
its equivalent. Ward v. Gulf, M. & N. R. Co., 23
Tenn.App. 533, 134 S.W.2d 917, 923.
BAHADUM. A chest or coffer. Fleta.
BAIL, v. To procure the release of a person from
legal custody, by undertaking that he shall appear
at the time and place designated and submit him-
self to the jurisdiction and judgment of the court.
To deliver the defendant to persons who, in the
manner prescribed by law, become security for
his appearance in court. To set at liberty a per-
son arrested or imprisoned, on security being taken
for his appearance on a day and a place certain,
which security is called "bail," because the party
arrested or imprisoned is delivered into the hands
of those who bind themselves for his forthcoming,
(that is, become bail for his due appearance when
required,) in order that he may be safely pro-
tected from prison. Wharton. Stafford v. State,
10 Tex.App. 49.
To procure release of one charged with an offense by
insuring his future attendance in court and compelling
him to remain within jurisdiction of court. Manning v.
State ex rel. Williams, 190 Okl. 65, 120 P.2d 980, 981.
The object of "bail" in civil cases is either directly or
indirectly to secure payment of a debt or performance of
other civil duties, while in criminal cases object is to
secure appearance of principal before the court when his
presence is needed. Johnson v. Shaffer, 64 Ohio App. 236,
28 N.E.2d 765, 767. In its more ancient signification, the
word includes the delivery of property, real or personal, by
one person to another.
BAIL, n. The surety or sureties who procure the
release of a person under arrest, by becoming re-
sponsible for his appearance at the time and
place designated. Those persons who become
sureties for the appearance of the defendant in
court.
—Bail above or bail to the action. See Special bail,
infra.
Black's Law Dictionary Revised 4th Ed.-12
—Bail absolute. Sureties whose liability is condi-
ditioned upon the failure of the principal to duly
account for money coming to his hands as admin-
istrator, guardian, etc.
—Bail below, or bail to the sheriff. See Bail to the
sheriff or bail below, infra.
—Bail bond. A bond executed by a defendant who
has been arrested, together with other persons as
sureties, naming the sheriff, constable, or marshal
as obligee, in a penal sum proportioned to the
damages claimed or penalty denounced, condi-
tioned that the defendant shall duly appear to
answer to the legal process in the officer's hands,
or shall cause special bail to be put in, as the case
may be.
An obligation signed by the accused with sure-
ties, conditioned that the same shall be void on the
performance by the accused of such acts as he is
required to perform. State v. Wilson, 265 Mo. 1,
175 S.W. 603, 605.
Its purpose is to secure the presence of the one charged
in court when his presence is required in order to answer
to the charge. State v. Clark, 234 Iowa 338, 11 N.W.2d 722.
In criminal cases, a bail bond is a contract under seal,
which, from its nature, requires sureties or bail, and there-
fore differs from a "recognizance," which is a debt or obli-
gation of record, acknowledged before some court or mag-
istrate authorized to take it, with condition to do some
particular act, and which need not be executed by the par-
ties. State v. Bradsher, 189 N.C. 401, 127 S.E. 349, 351, 38
A.L.R. 1102. But under the law of Connecticut, "recog-
nizance" and "bail" are interchangeable. National Surety
Co. v. Nazzaro, 239 Mass. 341, 132 N.E. 49, 50.
—Bail common. A fictitious proceeding, intended
only to express the appearance of a defendant, in
cases where special bail is not required. It is put
in in the same form as special bail, but the sure-
ties are merely nominal or imaginary persons, as
John Doe and Richard Roe. 3 Bl.Comm. 287.
—Bail court. In English law and practice. An
auxiliary court of the court of queen's bench at
Westminster, wherein points connected more par-
ticularly with pleading and practice are argued
and determined. Holthouse; Wharton, Law Dict.
2d Lond. ed. It has been abolished.
—Bail dock. Formerly at the Old Bailey, in
London, a small room taken from one of the
corners of the court, and left open at the top, in
which certain malefactors were placed during
trial. Cent. Dict.
— Bail in error. That given by a defendant who
intends to bring a writ of error on the judgment
and desires a stay of execution in the meantime.
—Bail piece. A formal entry or memorandum of
the recognizance or undertaking of special bail in
civil actions, which, after being signed and ac-
knowledged by the bail before the proper officer,
is filed in the court in which the action is pending.
3 Bl.Comm. 291; Worthen v. Prescott, 60 Vt. 68,
11 Atl. 690.
— Bail to the action or bail above. Special bail (q.
v.).
—Bail to the sheriff or bail below. Persons who
undertake that a defendant arrested upon mesne
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process in a civil action shall duly appear to an-
swer the plaintiff; such undertaking being in the
form of a bond given to the sheriff, termed a
"bail bond" (q. v.). 3 Bl.Comm. 290; 1 Tidd, Pr.
221. Sureties who bind themselves to the sheriff
to secure the defendant's appearance, or his put-
ting in bail to the action on the return-day of the
writ.
"Bail to the sheriff was originally designed to tempo-
rarily liberate the defendant from close custody, and to
place means in the sheriff's hands to insure the defend-
ant's appearance to answer at the return of the writ.
• • • The appearance which was contemplated was not,
however, necessarily an actual appearance in person, but
by putting in new bail, called bail to the action, special
bail, or bail above. This special bail, or bail above, was
by recognizance, which was matter of record, and an act
of appearance, and by it the bail were bound that if the
defendant should be condemned he should pay or render
himself a prisoner, and if he did not, that they would pay
the condemnation. The undertaking of the ball to the
sheriff, or bail below, was wholly different, and was
adapted to the specific exigency. It was in the form of a
bond to the sheriff, and was conditioned for the defend=
ant's appearance at the return of the writ, which meant
putting in and perfecting bail above." De Myer v. McGon-
egal, 32 Mich. 120, 124.
—Civil bail. That taken in civil actions.
—Common bail. Fictitious sureties formally en.
tered in the proper office of the court. See Bail
common, supra.
—Special bail. Responsible sureties who under-
take as bail above. Persons who undertake joint-
ly and severally in behalf of a defendant arrested
on mesne process in a civil action that, if he be
condemned in the action, he shall pay the costs
and condemnation, (that is, the amount which
may be recovered against him,) or render himself
a prisoner, or that they will pay it for him. 3 Bl.
Comm. 291; 1 Tidd, Pr. 245; Sellon, Pr. 137. See
Bail to the sheriff or bail below, supra.
—Straw bail. Nominal or worthless bail. Irre-
sponsible persons, or men of no property, who
make a practice of going bail for any one who
will pay them a fee therefor, and who originally,
as a mark of their purpose, wore straw in their
shoes.
BAIL. Fr. In French and Canadian law. A
lease of lands. See Merlin, Repert. Bail.
—Bail a cheptel. A contract by which one of the
parties gives to the other cattle to keep, feed and
care for, the borrower receiving half the profit of
increase, and bearing half the loss. Duverger.
—Bail a ferme. A contract of letting lands.
—Bail a longues annêes. A lease for more than
nine years; the same as bail emphyteotique (see
infra) or an emphyteutic lease.
—Bail it loyer. A contract of letting houses.
—Bail It rente. A contract partaking of the nature
of the contract of sale, and that of the contract of
lease; it is translative of property, and the rent
is essentially redeemable. Clark's Heirs v. Christ's
Church, 4 La. 286; Poth. Bail a Rente, 1, 3.
—Bail emphyteotique. An emphyteutic lease; a
lease for a term of years with a right to prolong
indefinitely; practically equivalent to an aliena-
tion. 5 Low. C. 381; 6 Low. C. 58. See Emphy-
teusis.
BAILABLE. Capable of being bailed; admitting
of bail; authorizing or requiring bail.
BAILABLE ACTION. One in which the defend-
ant is entitled to be discharged from arrest only
upon giving bond to answer.
BAILABLE OFFENSE. One for which the prison-
er may be admitted to bail.
BAILABLE PROCESS. Such as requires the offi-
cer to take bail, after arresting the defendant.
That under which the sheriff is directed to arrest
the defendant and is required by law to discharge
him upon his tendering suitable bail as security
for his appearance. A capias ad respondendum
is bailable; not so a capias ad satisfaciendum.
BAILEE. In the law of contracts. One to whom
goods are bailed; the party to whom personal
property is delivered under a contract of bailment.
Hotels Statler Co. v. Safier, 103 Ohio St. 638, 134
N.E. 460, 462, 22 A.L.R. 1190. A species of agent
to whom something movable is committed in trust
for another. Cowart v. State, 16 Ala.App. 119, 75
So. 711, 713; Smith v. State, 78 Okl.Cr. 375, 148
P.2d 206, 208.
BAILEE POLICIES. Floating policies which cover
goods while in possession of warehouse without
particular description in the policy. Gillespie v.
Federal Compress & Warehouse Co., 265 S.W.2d
21, 27, 37 Tenn.App. 476.
BAILIE. In the Scotch law. (1) A magistrate
having inferior criminal and civil jurisdiction,
similar to that of an alderman, (q. v.; ) (2) an
officer appointed to confer infeoffment, (q. v.; ) a
bailiff, (q. v.; ) a server of writs. Bell.
BAILIFF. One to whom some authority, care,
guardianship, or jurisdiction is delivered, com-
mitted, or intrusted; one who is deputed or ap-
pointed to take charge of another's affairs; an
overseer or superintendent; a keeper, protector,
or guardian; a steward. Spelman. A sheriff's
officer or deputy. 1 Bl.Comm. 344. A court at-
tendant, sometimes called a tipstaff.
A magistrate, who formerly administered justice
in the parliaments or courts of France, answering
to the English sheriffs as mentioned by Bracton.
A person acting in a ministerial capacity who
has by delivery the custody and administration
of lands or goods for the benefit of the owner or
bailor, and is liable to render an account thereof.
Co.Litt. 271; Story, Eq.Jur. § 446; West v. Weyer,
18 N.E. 537, 46 Ohio St. 66, 15 Am.St.Rep. 552.
—Bailiff-errant. A bailiff's deputy.
—Bailiffs of franchises. In English law. Officers
who perform the duties of sheriffs within liberties
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or privileged jurisdictions, in which formerly the
king's writ could not be executed by the sheriff.
Spelman.
—Bailiffs of hundreds. In English law. Officers
appointed over hundreds, by the sheriffs, to col-
lect fines therein, and summon juries; to attend
the judges and justices at the assises and quarter
sessions; and also to execute writs and process in
the several hundreds. 1 Bl.Comm. 345; 3 Steph.
Comm. 29; Bract. fol. 116.
—Bailiffs of manors. In English law. Stewards
or agents appointed by the lord (generally by an
authority under seal) to superintend the manor,
collect fines, and quit rents, inspect the buildings,
order repairs, cut down trees, impound cattle
trespassing, take an account of wastes, spoils, and
misdemeanors in the woods and demesne lands,
and do other acts for the lord's interest. Cowell.
—High bailiff. An officer attached to an English
county court. His duties are to attend the court
when sitting; to serve summonses; and to execute
orders, warrants, writs, etc. St. 9 & 10 Vict. c. 95,
§ 33; Poll.C.C.Pr. 16. He also has similar duties
under the bankruptcy jurisdiction of the county
courts.
—Special bailiff. A deputy sheriff, appointed at
the request of a party to a suit, for the special
purpose of serving or executing some writ or
process in such suit.
BAILIVIA. In old law. A bailiff's jurisdiction,
a bailiwick; the same as bailium. Spelman. See
Bailiwick.
In old English law. A liberty, or exclusive ju-
risdiction, which was exempted from the sheriff of
the county, and over which the lord of the liberty
appointed a bailiff with such powers within his
precinct as an under-sheriff exercised under the
sheriff of the county. Whishaw.
BAILIWICK. A bailivia.
BAILLEUR DE FONDS. In Canadian law. The
unpaid vendor of real estate. 1 Low. C. 1, 6; 9
Low. C. 497.
BAILLI. In old French law. One to whom
judicial authority was assigned or delivered by a
superior.
BAILMENT. A delivery of goods or personal prop-
erty, by one person to another, in trust for the
execution of a special object upon or in relation
to such goods, beneficial either to the bailor or
bailee or both, and upon a contract, express or
implied, to perform the trust and carry out such
object, and thereupon either to redeliver the goods
to the bailor or otherwise dispose of the same in
conformity with the purpose of the trust. Fulcher
v. State, 32 Tex.Cr.R. 621, 25 S.W. 625.
A delivery of goods for some purpose, upon a contract,
express or implied, that after the purpose has been ful-
filled they shall be redelivered to the bailor, or otherwise
dealt with according to his direction, or kept until
reclaimed. In re George L. Nadell & Co., 294 Mich. 150,
292 N.W. 684, 686. A delivery of something of a personal
nature by one party to another to be held according to the
purpose or object of the delivery and to be returned or
delivered over when that purpose is accomplished. Hardin
v. Grant. Tex.Civ.A pp .. 54 S.W.2d 189, 190; Hogan v.
O'Brien, 206 N.Y.S. 831, 833, 123 Misc. 865. The term
"bailment" is derived from the French word "bailler,"
meaning "to deliver." It imports a delivery of personal
property by one person to another m trust for a specific
purpose, with a contract, expressed o implied, that the
trust shall be faithfully executed and the property re-
turned or duly accounted for when the specific purpose
is accomplished or kept until bailor claims it. Common-
wealth v. Polk, 256 Ky. 100, 75 S.W.2d 761, 764.
According to Story, the contract does not necessarily
imply an undertaking to redeliver the goods. On the other
hand, Blac:istone, although his definition does not include
the return, speaks of it in all his examples of bailments as
a duty of the bailee; and Kent says that the application
of the term to cases in which no return or redelivery to the
owner or his agent is contemplated, is extending the defini-
tion of the term beyond its ordinary acceptation in English
law. A consignment to a factor would be a bailment for
sale, according to Story; while according to Kent it would
not.
Classification
Sir William Jones has divided bailments into
five sorts, namely: Depositum, or deposit; man-
datum, or commission without recompense; com-
modatum, or loan for use without pay; pignori
acceptum, or pawn; locatum, or hiring, which is
always with reward. This last is subdivided into
locatio rei, or hiring, by which the hirer gains a
temporary use of the thing; locatio operis facien-
di, when something is to be done to the thing de-
livered; locatio operis mercium vehendarum, when
the thing is merely to be carried from one place
to another. Jones, Bailm, 36.
Lord Holt divided bailments thus:
(1) Depositum, or a naked bailment of goods, to be kept
for the use of the bailor.
(2) Commodatum. Where goods or chattels that are use-
ful are lent to the bailee gratis, to be used by him.
(3) Locatio rei. Where goods are lent to the bailee to
be used by him for hire.
(4) Vadium. Pawn or pledge.
(5) Locatio operis faciendi. Where goods are delivered
to be carried, or something is to be done about them, for
a reward to be paid to the bailee.
(6) Mandatum. A delivery of goods to somebody who is
to carry them, or do something about them, gratis. 2 Ld.
Raym. 909.
Another division, suggested by Bouvier as being a better
general division for practical purposes, is as follows :
First, those bailments which are for the benefit of the
bailor, or of some person whom he represents; second,
those for the benefit of the bailee, or some person repre-
sented by him; third, those which are for the benefit of
both parties.
In General
—Bailment for hire. A contract in which the
bailor agrees to pay an adequate recompense for
the safe-keeping of the thing intrusted to the cus-
tody of the bailee, and the bailee agrees to keep
it and restore it on the request of the bailor, in
the same condition substantially as he received
it, excepting injury or loss from causes for which
he is not responsible.
—Bailment for mutual benefit. One in which
the parties contemplate some price or compensa-
tion in return for benefits flowing from the bail-
ment, necessarily involving an express or im-
plied agreement or undertaking to that effect.
Armored Car Service, Inc. v. First Nat. Bank of
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Miami, Fla.App., 114 So.2d 431, 434. For example,
delivery of automobile to one who, for a consider-
ation, undertakes to repair it. Fox Chevrolet Sales,
Inc. v. Middleton, to Use of Farm Bureau Mut.
Auto. Ins. Co., 99 A.2d 731, 732, 203 Md. 158, 43
A.L.R.2d 399.
—Actual bailment. One which exists where there
is either (a) an "actual delivery," consisting in
giving to the bailee or his agent the real posses-
sion of the chattel, or ( b) a "constructive de-
livery," consisting of any of those acts which,
although not truly comprising real possession of
the goods transferred, have been held by legal
construction equivalent to acts of real delivery.
Wentworth v. Riggs, 159 App.Div. 899, 143 N.Y.S.
955, 956.
—Constructive bailment. One arising where the
person having possession of a chattel holds it
under such circumstances that the law imposes
upon him the obligation to deliver it to another.
Wentworth v. Riggs, 159 App.Div. 899, 143 N.Y.S.
955, 956. See, also, Involuntary bailment, infra.
—Gratuitous bailment. Another name for a
depositum or naked bailment, which is made only
for the benefit of the bailor and is not a source of
profit to the bailee. Foster v. Essex Bank, 17
Mass. 499, 9 Am.Dec. 168.
—Involuntary bailment. One arising by the acci-
dental leaving of personal property in the posses-
sion of any person without negligence on the part
of its owner. Grossman Co. v. White, 52 Okl. 117,
152 P. 816, 817
A "bailment" Is created by the element of lawful pos-
session and the duty to act for the thing as the property
of another, whether such possession is based on contract
in the ordinary sense or not. Foulke v. New York Consol.
R. Co., 228 N.Y. 269, 127 N.E. 237, 239, 9 A.L.R. 1384. See
Constructive bailment, supra.
—Lucrative bailment. One which is undertaken
upon a consideration and for which a payment or
recompense is to be made to the bailee, or from
which he is to derive some advantage. Prince v.
Alabama State Fair, 106 Ala. 340, 17 So. 449, 28
L.R.A. 716.
—Bailment lease. A legal metnod by which one
desiring to purchase an article but unable to pay
therefor at the time, may secure possession there-
of with the right to use and enjoy it as long as
he pays stipulated rentals and becomes absolute
owner after completing such installment pay-
ments, on payment of an additional sum which
may be nominal. In re Robinson, D.C.Pa., 40 F.
Supp. 320, 322, 323.
Bailments as Distinguished from Other
Transactions
—Chattel mortgages. A radical distinction be-
tween a bailment and a chattel mortgage is that,
by a mortgage, the title is transferred to the
mortgagee, subject to be revested by performance
of the condition, but, in case of a bailment, the
bailor retains the title and parts with the pos-
session for a special purpose. Walker v. Staples, 5
Allen (Mass.) 34.
—Debt. The distinction between an obligation to
restore the specific thing received, or of returning
others of equal value, is the distinction between a
"bailment" and a "debt." Alamitos Land Co. v.
Texas Co., 11 Cal.App.2d 614, 54 P.2d 489, 491.
—
Exchanges. An agreement by which A is to
let B have a horse, in consideration that B will
let A have another horse, creates an exchange,
not a bailment. Austin v. Seligman, C.C.N.Y., 21
Blatchf. 506, 18 Fed. 519.
—Partnerships. Where animals are delivered to
be taken care of for a certain time, and at the
expiration of that time the same number of ani-
mals is to be returned, and any increase is to be
enjoyed by both parties, there is a bailment, not a
partnership. Simmons v. Shaft, 91 Kan. 553, 138
P. 614, 615.
—Sales. The test of a bailment is that the iden-
tical thing is to be returned in the same or in some
altered form; if another thing of equal value is
to be returned, the transaction is a sale. Sturm v.
Boker, 14 S.Ct. 99, 150 U.S. 312, 37 L.Ed. 1093;
Borman v. U. S., C.C.A.N.Y., 262 F. 26, 29.
Conditional sale. Contemplates that at some time the
title shall pass to the purchaser and that he shall pay the
purchase price, while a "bailment" contemplates that the
title shall not pass to the bailee, but remain in the bailor,
and that the property shall be returned to the bailor. Ver-
mont Acceptance Corporation v. Wiltshire, 103 Vt. 219, 153
A. 199, 200, 73 A.L.R. 792.
— .
Trusts. The passing of the legal title from the
owner to the party to whom personal property is
delivered distinguishes a "trust" from a bailment.
National Cattle Loan Co. v. Ward, 113 Tex. 312,
255 S.W. 160, 164; McIntyre v. Smith, 154 Md.
660, 141 A. 405, 410.
BAILOR. The party who bails or delivers goods
to another, in the contract of bailment. McGee v.
French, 49 S.C. 454, 27 S.E. 487; Story, Bailm.
§1 74, 388.
BAIR-MAN. In old Scotch law. A poor insolvent
debtor, left bare and naked, who was obliged to
swear in court that he was not worth more than
five shillings and fivepence.
BAIRN'S PART. In Scotch law. Children's part;
a third part of the defunct's free movables, debts
deducted, if the wife survive, and a half if there
be no relict. See Legitim.
BAIRNS. In Scotch law. A known term, used to
denote one's whole issue. Ersk.Inst. 3, 8, 48. But
it is sometimes used in a more limited sense.
Bell.
BAIT. To attack with violence; to provoke and
harass. 2 A. & E. Encyc. 63; L.R. 9 Q.B. 380.
BAITING ANIMALS. In English law. Procuring
them to be worried by dogs. Punishable on sum-
mary conviction, under 12 & 13 Vict. c. 92, 1 3.
BAKER. In its ordinary use respecting a bakery
business, a generic term including in its scope
different services connected with the bakery busi-
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BALLAST
ness, such as doing shop service in putting bread
in boxes. Futopolus v. Midland Casualty Co., 174
Wis. 208, 182 N.W. 845, 847.
BAKERY. Any place used for the purpose of
mixing, compounding, or baking for sale or for
purposes of a restaurant, bakery or hotel, any
bread, biscuit, pretzels, crackers, buns, rolls, maca-
roni, cake, pies, or any food products of which
flour or meal is a principal ingredient. Continen-
tal Baking Co. v. Campbell, 176 Okl. 218, 55 P.2d
114, 116.
BAKING POWDER. A mixture in dry form of
certain alkali and acid substances, combined with
a filler; when moistened and heated, as in baking
dough, a chemical reaction occurs, liberating car-
bonic gas, which "raises" or leavens the bread.
Royal Baking Powder Co. v. Emerson, C.C.A.Ark.,
270 F. 429, 436.
BALIENA. A large fish, called by Blackstone a
"whale." Of this the king had the head and the
queen the tail as a perquisite whenever one was
taken on the coast of England. 1 Bl.Comm. 222;
Prynne, Ann.Reg. 127.
BALANCE. An equality between the sums total
of the two sides of an account, or the excess on
either side. Jones v. Marrs, 114 Tex. 62, 263 S.W.
570, 574.
• The conclusion or result of the debit and credit sides of
an account. It implies mutual dealings, and the existence
of debt and credit, without which there could be no bal-
ance. Thillman v. Shadrick, 69 Md. 528, 16 Atl. 138. The
amount remaining due from one person to another on a
settlement of the accounts involving their mutual dealings;
the difference between the two sides (debit and credit) of
an account.
Often used in the sense of residue or remainder, and, in
a general sense, may be defined as what remains or is left
over. Commercial Discount Co. v. Holland, 107 Cal.App.
83, 289 P. 906, 908.
—Balance of convenience. A term descriptive of
a rule for determining in a doubtful case what
decree should be made; for example, whether an
injunction should be granted. Cohen v. City of
Houston, Tex.Civ.App., 176 S.W. 809, 814. It per-
tains to a test to determine what order will with
the least inconvenience to either party assure the
victorious one the fruits of his decree. Town of
Williams v. Iowa Falls Electric Co., 185 Iowa, 493,
170 N.W. 815.
—Balance of power. In international law. A dis-
tribution and an opposition of forces, forming one
system, so that no state shall be in a position,
either alone or united with others, to impose its
will on any other state or interfere with its in-
dependence. Ortolan.
—Balance sheet. A statement made by merchants
and others to show the true state of a particular
business.
When it is desired to ascertain the exact state of a
merchant's business, or other commercial enterprise, at a
given time, all the ledger accounts are closed up to date
and balances struck; and these balances, when exhibited
together on a single page, and so grouped and arranged as
to close into each other and be summed up in one general
result, constitute the "balance-sheet." Eyre v. Harmon,
92 Cal. 580, 28 P. 779.
—General balance. Sometimes used to signify the
difference which is due to a party claiming a lien
on goods in his hands for work or labor done, or
money expended in relation to those and other
goods of the debtor. 3 B. & P. 485; 3 Esp. 268;
McWilliams v. Allan, 45 Mo. 573.
—Net balance. In commercial usage, the balance
of the proceeds, as from a sale of stock, after
deducting the expenses incident to the sale. Evans
v. Waln, 71 Pa. 74.
BALCANIFER, or BALDAKINIFER. The stand-
ard-bearer of the Knights Templar.
BALCONIES. Small galleries of wood or stone on
the outside of houses. In London, the erection of
them is regulated by the building acts.
BALDIO. In Spanish law. Waste land; land that
is neither arable nor pasture. White New Recop.
b. 2, tit. 1, c. 6, § 4, and note. Unappropriated pub-
lic domain, not set apart for the support of mu-
nicipalities. Sheldon v. Milmo, 90 Tex. 1, 36 S.W.
415.
BALE. A pack or certain quantity of goods or
merchandise, wrapped or packed up in cloth and
corded round very tightly, marked and numbered
with figures corresponding to those in the bills of
lading for the purpose of identification. Wharton.
A bale of cotton is a certain quantity of that commodity
compressed into a cubical form, so as to occupy less room
than when in bags. 2 Car. & P. 525. Penrice v. Cocks, 2
Miss. 229.
A standard package of merchantable lint cotton, sep-
arated from the seed by the first process of a cotton gin,
weighing approximately 500 pounds, and classifiable under
one of the recognized market grades. Wichita Falls Com-
press Co. v. W. L. Moody & Co., Tex.Civ.App., 154 S.W.
1032, 1045.
BALISE. Fr. In French marine law. A buoy.
BALIUS. In the civil law. A teacher; one who
has the care of youth; a tutor; a guardian. Du
Cange; Spelman.
BALIVA. (Spelled also Balliva; equivalent to
Balivatus, Balivia). L. Lat. In old English law.
A bailiwick; the jurisdiction of a sheriff; the
whole district within which the trust of the sheriff
was to be executed. Cowell; 3 Bla.Com. 283.
BALIVO AMOVENDO. See Ballivo Amovendo.
BALL—HOOTING. In lumbering, a term designat-
ing a process of sliding log down a mountain side.
Bradford v. English, 190 N.C. 742, 130 S.E. 705.
BALLAST. That which is used for trimming a
ship to bring it down to a draft of water proper
and safe for sailing. Great Western Ins. Co. v.
Thwing, 13 Wall. 674, 20 L.Ed. 607.
There is considerable analogy between ballast and dun-
nage. Dunnage is placed under the cargo to keep it from
being wetted by water getting into the hold, or between
the different parcels to keep them from bruising and injur-
ing each other. Great Western Ins. Co. v. Thwing, 13
Wall. 674, 20 L. Ed. 607.
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BALLASTAGE
BALLASTAGE. A toll paid for the privilege of
taking up ballast from the bottom of a port or
harbor. This arises from the property in the soil.
2 Chitty, Comm.Law 16.
BALLIUM. A fortress or bulwark; also bail. Cun-
ningham.
BALLIVO AMOVENDO. An ancient writ to re-
move a bailiff from his office for want of sufficient
land in the bailiwick. Reg.Orig. 78.
BALLOON. See Aeronaut; Aeronautics; Aircraft.
BALLOON MORTGAGE. A mortgage providing
for specific payments at stated regular intervals,
and final payment of more than twice any of the
periodic payments. Bellman v. Yarmark Enter-
prises, Inc., Fla.App., 180 So.2d 663, 665.
BALLOT. Derived from ballotta, a round bullet,
a voice or lot, means act of voting, usually in
secret, by balls or by written or printed tickets or
slips of paper; the system of voting by balls or
tickets, or by any device for casting or recording
votes, as by voting machine. Norris v. Mayor and
City Council of Baltimore, 192 A. 531, 535, 172 Md.
667. Also piece of paper on which the voter gives
expression to his choice. Sawyer Stores v. Mitch-
ell, 103 Mont. 148, 62 P.2d 342, 348.
A slip of paper bearing the names of the offices to be
filled at the particular election and the names of the can-
didates for whom the elector desires to vote, or contain-
ing a particular question of administration or public policy
on which the voter is asked to express his views. It may
be printed, or written, or partly printed and partly writ-
ten, and is deposited by the voter in a "ballot box" which
is in the custody of the officers holding the election.
Denny v. Pratt, 104 Conn. 396, 133 A. 107, 108.
Used as a symbol of secrecy, while "viva voce" is used
as a symbol of publicity. Day v. Walker, 124 Neb. 500, 247
N.W. 350, 351.
The whole amount of votes cast.
Joint Ballot
In parliamentary practice, an election or vote
by. ballot participated in by the members of both
houses of a legislative assembly sitting together
as one body, the result being determined by a
majority of the votes cast by the joint assembly
thus constituted, instead of by concurrent majori-
ties of the two houses. See State v. Shaw, 9 S.C.
144.
Official Ballot
Depending on its use in local statutes, this term
has a varied meaning. It may refer to a ballot
which has been furnished by the clerk; Cain v.
Garvey, Tex.Civ.App., 187 S.W. 1111, 1116; or it
may contemplate that a ballot must have been
printed under the supervision of a designated
member of the electoral board, sealed by the
board, and by resolution declared to be one of the
official ballots for the election to be held; Xippas
v. Commonwealth, 141 Va. 497, 126 S.E. 207, 209.
Mutilated Ballot
One from which the name of the candidate is
cut out. Murray v. Waite, 113 Me. 485, 94 A. 943,
945, Ann.Cas.1918A, 1128. One which is destitute
or deprived of some essential or valuable part;
greatly shortened. Stubbs v. Moursund, Tex.Civ.
App., 222 S.W. 632, 634.
BALLOT-BOX. A case usually made of wood for
receiving ballots.
BALLOTTEMENT. Fr. In medical jurispru-
dence. A test for pregnancy by palpation with
the finger inserted in the vagina to the mouth of
the uterus. The tip of the finger being quickly
jerked upward, the foetus, if one be present, can
be felt rising upward and then settling back
against the finger.
BALNEARIL In the Roman law. Those who
stole the clothes of bathers in the public baths.
4 Bl.Comm. 239.
BAN.
In Old English and Civil Law
A proclamation; a public notice; the announce-
ment of an intended marriage. Cowell. An ex-
communication; a curse, publicly pronounced. A
proclamation of silence made by a crier in court
before the meeting of champions in combat.
Cowell. A statute, edict, or command; a fine, or
penalty. An expanse; an extent of space or terri-
tory; a space inclosed within certain limits; the
limits or bounds themselves. Spelman. An open
field; the outskirts of a village. A privileged
space or territory around a town, monastery, or
other place.
French Law
The right of announcing the time of mowing,
reaping, and gathering the vintage, exercised by
certain seignorial lords. Guyot, Repert. Univ.
Old European Law
A military standard; a thing unfurled, a banner.
Spelman. A summoning to a standard; a calling
out of a military force; the force itself so sum-
moned; a national army levied by proclamation.
BANAL. In Canadian and old French law. Per-
taining to a ban or privileged place; having qual-
ities or privileges derived from a ban. Thus, a
banal mill is one to which the lord may require
his tenant to carry his grain to be ground.
BANALITY. In Canadian law. The right by vir-
tue of which a lord subjects his vassals to grind at
his mill, bake at his oven, etc. Used also of the
region within which this right applied. Guyot,
Repert. Univ.; 1 Low.C. 31; 3 Low.C. 1.
BANC. Bench; the place where a court perma-
nently or regularly sits; the seat of judgment;
as, banc le roy, the king's bench; banc le common
pleas, the bench of common_pleas.
The full bench, full court. A "sitting 'in bane"
is a meeting of all the judges of a court, usually
for the purpose of hearing arguments on demur-
rers, points reserved, motions for new trial, etc.,
as distinguished from the sitting of a single judge
at the assises or at nisi Arius and from trials at
bar. Cowell.
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BANI
BANCI NARRATORES. In old English law. Ad-
vocates; countors; serjeants. Applied to advo-
cates in the common pleas courts. 1 Bl.Comm. 24;
Cowell.
BANCO. Ital. A seat or bench of justice; also,
in commerce, a word of Italian origin signifying
a bank. Also a small tract of land on opposite
side of river from country to which it belongs, and
so existing by virtue of an avulsive change in the
river. San Lorenzo Title & Improvement Co. v.
City Mortgage Co., Tex.Civ.App., 48 S.W.2d 310,
314. See, also, Banc.
BANCUS. L. Lat. In old English law and prac-
tice. A bench or seat in the king's hall or palace.
Fleta, lib. 2, c. 16, §
A high seat, or seat of distinction; a seat of
judgInent, or tribunal for the administration of
justice.
Often used for the court itself ; thus, the English court
of common pleas was formerly called Bancus. Viner, Abr.
Courts (M).
A sitting in banc; the sittings of a court with
its full judicial authority, or in full form, as
distinguished from sittings at nisi prius. Cowell;
Spelman.
A stall, bench, table, or counter, on which goods
were exposed for sale. Cowell.
BANCUS REGIME, The queen's bench. See
Queen's Bench.
BANCUS REGIS. The king's bench; the supreme
tribunal of the king after parliament. 3 Bl.Comm.
41.
In Banco Regis. In or before the court of king's
bench.
BANCUS SUPERIOR. The upper bench. The
king's bench was so called during the Protectorate.
BAND. In old Scotch law. A proclamation calling
out a military force.
BANDIT. An outlaw; a man banned, or put un-
der a ban; a brigand or robber. Banditti, a band
of robbers.
BANE. A malefactor. Bract. 1. 1, t.  c. 1.
Also a public denunciation of a malefactor;
the same with what was called "hutesium," hue
and cry. Spelman.
BANERET, or BANNERET. In English law. A
knight made in the field, by the ceremony of
cutting off the point of his standard, and making
it, as it were, a banner. Knights so made are
accounted so honorable that they are allowed to
display their arms in the royal army, as barons
do, and may bear arms with supporters. They
were sometimes called "vexillarii." Wharton.
A degree of honor next after a baron's, when
conferred by the king; otherwise, it ranks after
a baronet. 1 Bla.Comm. 403.
BANISHMENT. In criminal law. A punishment
inflicted upon criminals, by compelling them to
quit a city, place, or country for a specified period
of time, or for life. Cooper v. Telfair, 4 Dall. 14,
1 L.Ed. 721; People v. Potter, 1 Park.Cr.R. (N.Y.)
54. Synonymous with exilement and imports a
compulsory loss of one's country. 3 P. Wms. 38.
It is inflicted principally upon political offenders, "trans-
portation" being the word used to express a similar pun-
ishment of ordinary criminals. Banishment, however,
merely forbids the return of the person banis'ed before the
expiration of the sentence, while transportation involves
the idea of deprivation of liberty after the convict arrives
at the place to which he has been carried. Rap. & L.
BANISTER AND RAILING. These words, in the
New York Tenement House Law, § 35, mean a
balustrade, consisting of balusters or supports,
upon which is placed a railing commonly placed
on the outer or open edge of a stairway. Cahill v.
Kleinberg, 233 N.Y. 255, 135 N.E. 323.
BANK. A bench or seat; the bench of justice;
the bench or tribunal occupied by the judges; the
seat of judgment; a court. The full bench, or
full court; the assembly of all the judges of a
court.
A "sitting in bank" is a meeting of all the judges of a
court, usually for the purpose of hearing arguments on
demurrers, points reserved, motions for new trial, and
other law points, as distinguished from the sitting of a
single judge at the assises or at nisi prius and from trials
at bar to determine facts. 3 Bla.Comm. 28, n. But in this
sense, banc is perhaps the more usual form of the word.
"Sitting in bank" is also described as an official meeting
of four of the judges of a common-law court. Wharton,
Lex.
Bank le Roy. The king's bench. Finch, 198.
An acclivity; an elevation or mound of earth,
especially that which borders the sides of a water
course.
The land adjacent to a river. Graham v. Knight, Tex.
Civ.App., 240 S. W. 981, 983.
That part of a stream which retains the water. Dawson
County v. Phelps County, 94 Neb. 112, 142 N.W. 697, 699.
The elevation of land which confines the waters of a
stream in their natural channel when they rise the highest
and do not overflow the banks. Department of Health of
New Jersey v. Chemical Co. of America, 90 N.J.Eq. 425,
107 A. 164, 166. A water-washed and relatively permanent
elevation or acclivity at the outer line of a river bed which
separates the bed from the adjacent upland, and serves to
confine the waters within the bed and to preserve the
course of the river. State of Oklahoma v. State of Texas,
43 S.Ct. 221, 260 U.S. 606, 67 L.Ed. 428; Horton v. Niagara,
Lockport & Ontario Power Co., 247 N.Y.S. 741, 745, 231
App.Div. 386. The land lying between the edge of the
water of a stream at its ordinary low stage and the line
which the edge of the water reaches in its ordinary high
stage. Wemple v. Eastham, 150 La. 247, 90 So. 637, 638.
An elevation of land which confines the waters of a
stream when they rise out of the bed. Neither the line of
ordinary high-water mark, nor of ordinary low-water
mark, nor of a middle stage of water can be assumed as
the line dividing the bed from the banks. Banks are fast
land, on which vegetation appropriate to such land in the
particular locality grows wherever the bank is not too
steep to permit such growth, and bed is soil of a different
character, and having no vegetation, or only such as exists,
when commonly submerged in water. State v. Nolegs, 139
P. 943, 946, 40 Okl. 479. On the borders of navigable
streams, where there are levees established according to
law, the levees form the "banks of the river." Ward v.
Board of Levee Com'rs of Orleans Levee Dist., 152 La. 158,
92 So. 769, 772.
An institution, of great value in the commercial
BANI. Deodands (q. v.). world, empowered to receive deposits of money,
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BANK
to make loans, and to issue its promissory notes,
(designed to circulate as money, and commonly
called "bank-notes" or "bank-bills,") or to perform
any one or more of these functions. State v.
Wagner, 202 Iowa, 739, 210 N.W. 901, 902; People
v. Bartow, 6 Cow.N.Y. 290; Dearborn v. North-
western Savings Bank, 42 Ohio St. 617; In re
Prudence Co., D.C.N.Y., 10 F.Supp. 33, 36.
An institution, usually incorporated with power to issue
its promissory notes intended to circulate as money (known
as bank notes) ; or to receive the money of others on gen-
eral deposit, to form a joint fund that shall be used by the
institution, for its own benefit, for one or more of the pur-
poses of making temporary loans and discounts ; of deal-
ing in notes, foreign and domestic bills of exchange, coin,
bullion, credits, and the remission of money; or with both
these powers, and with the privileges, in addition to these
basic powers, of receiving special deposits and making col-
lections for the holders of negotiable paper, if the institu-
tion sees fit to engage in such business. State of Kansas
ex rel. Boynton v. Hayes, C.C.A.Kan., 62 F.2d 597, 600.
The term "bank" is usually restricted in its application
to an incorporated body; while a private individual mak-
ing it his business to conduct banking operations is gen-
erally denominated a "banker." Hobbs v. Bank, C.C.A.
N.Y., 101 F. 75, 41 C.C.A. 205; Wells, Fargo & Co. v.
Northern Pac. R. Co., C.C.Or., 23 F. 469.
The house or place where the business of bank-
ing is carried on.
Banks in the commercial sense are of three kinds, viz. :
(1) of deposit; (2) of discount; (3) of circulation. Strict-
ly speaking, the term "bank" implies a place for the de-
posit of money, as that is the most obvious purpose of
such an institution. Originally the business of banking
consisted only in receiving deposits, such as bullion, plate,
and the like, for safe-keeping until the depositor should
see fit to draw it out for use, but the business, in the
progress of events, was extended, and bankers assumed to
discount bills and notes, and to loan money upon mort-
gage, pawn, or other security, and, at a still later period,
to issue notes of their own, intended as a circulating cur-
rency and a medium of exchange, instead of gold and sil-
ver. Modern bankers frequently exercise any two or even
all three of those functions, but it is still true that an in-
stitution prohibited from exercising any more than one
of those functions is a bank, in the strictest commercial
sense. Oulton v. German Sa y. & L. Soc., 17 Wall. 118, 21
L.Ed. 618; Millikan v. Security Trust Co., 118 N.E. 568,
569, 187 Ind. 307; Rev.St.U.S. § 3407 (12 USCA § 561).
—Bank-account. A sum of money placed with a
bank or banker, on deposit, by a customer, and
subject to be drawn out on the latter's check. The
statement or computation of the several sums
deposited and those drawn out by the customer on
checks, entered on the books of the bank and the
depositor's passbook. Gale v. Drake, 51 N.H. 84.
—Bank bill. Same as bank note. Eastman v.
Corn., 4 Gray (Mass.) 416. See Bank note, infra.
—Bank book. A book kept by a customer of a
bank, showing the state of his account with it.
See Pass-book.
—Bank cashier. A chief executive officer and
general agent through whom financial operations
of bank are conducted. Hamilton Nat. Bank of
Chattanooga, Tenn., v. Lerman, 229 Ala. 363, 157
So. 75.
—Bank charges. This term in an action on a bill
of exchange is equivalent to expenses of noting
and may be especially endorsed as a liquidated
demand; [1893] 1 Q.B. 318.
—Bank check. See Check.
—Bank credit. A credit with a bank by which,
on proper security given to the bank, a person re-
ceives liberty to draw to a certain extent agreed
upon. In Scotland also called a cash account.
Cent. Dict.
—Bank depositor. One who delivers to or leaves
with a bank a sum of money subject to his order.
Wharton v. Poughkeepsie Say . Bank, 31 N.Y.S.2d
311, 313, 262 App.Div. 598.
—Bank draft. A check, draft, or other order for
payment of money, drawn by an authorized officer
of a bank upon either his own bank or some other
bank in which funds of his bank are deposited.
Polotsky v. Artisans Sa y . Bank, Del., 180 A. 791,
792, 7 W.W.Harr. 142.
—Bank note. A promissory note issued by a bank
or banker authorized to do so, payable to bearer
on demand, and intended to circulate as money.
Townsend v. People, 4 Ill. 328; Low v. People, 2
Park.Cr.R. (N.Y.) 37. See, also, Banker's note.
In the early history of banks, their notes were generally
denominated bills of credit. Briscoe v. Bank of the Com-
monwealth of Kentucky, 11 Pet. 257, 9 L.Ed. 709.
—Bank stock. Shares in the capital of a bank;
shares in the property of a bank. In England the
term is applied chiefly to the stock of the Bank
of England.
— Bank teller. See Teller.
— Bank in failing condition. Under sdme statutes,
an insolvent bank. Hanson v. State, 160 Ark. 329,
254 S.W. 691, 694.
—Bank of circulation. One which issues bank
notes payable to bearer. Dunn v. State, 13 Ga.
App. 314, 79 S.E. 170, 171. See Bank of issue,
infra.
—Bank of deposit. A savings bank or any other
bank which receives money on deposit. Dunn v.
State, 13 Ga.App. 314, 79 S.E. 170, 171.
—Bank of discount. One which lends money on
collateral or by means of discounts of commercial
paper. Dunn v. State, 13 Ga.App. 314, 79 S.E. 170,
171.
—Bank of issue. One which, pursuant to author-
ity conferred by its charter, issues its own notes
intended to circulate as money. Millikan v. Se-
curity Trust Co., 187 Ind. 307, 118 N.E. 568, 569.
— Joint-stock banks. In English law. Joint-stock
companies for the purpose of banking. They are
regulated, according to the date of their incorpo-
ration, by charter, or by 7 Geo. IV, c. 46; 7 & 8
Vict. cc. 32, 113; 9 & 10 Vict. c. 45, (in Scotland
and Ireland; ) 20 & 21 Vict. c. 49; and 27 & 28
Vict. c. 32; or by the "Joint-Stock Companies
Act, 1862," (25 & 26 Vict. c. 89.) Wharton.
—Savings bank. An institution in the nature of a
bank, formed or established for the purpose of
receiving deposits of money, for the benefit of the
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persons depositing, to accumulate the produce of
so much thereof as shall not be required by the
depositors, their executors or administrators, at
compound interest, and to return the whole or
any part of such deposit, and the produce thereof,
to the depositors, their executors or administra-
tors, deducting out of such produce so much as
shall be required for the necessary expenses at-
tending the management of such institution, but
deriving no benefit whatever from any such de-
posit or the produce thereof. Grant, Banks, 546;
Bulakowski v. Philadelphia Sa y . Fund Soc., 270
Pa. 538, 113 A. 553, 554. They differ from the ordi-
nary banks of discount and deposit in not being
engaged in business for profit. Commercial Trust
Co. of New Jersey v. Hudson County Board of
Taxation, 86 N.J.Law, 424, 92 A. 263, 265.
BANK HOLIDAY OF 1933. Presidential Procla-
mations No. 2039, issued March 6, 1933, and No.
2040, issued March 9, 1933, temporarily suspended
banking transactions by member banks of the
Federal Reserve System. Normal banking func-
tions were resumed on March 13, subject to cer-
tain restrictions. The first proclamation, it was
held, had no authority in law until the passage
on March 9, 1933, of a ratifying act (12 U.S.C.A. §
95b). Anthony v. Bank of Wiggins, 183 Miss.
885, 184 So. 626. The present law forbids member
banks of the Federal Reserve System to transact
banking business, except under regulations of the
Secretary of the Treasury, during an emergency
proclaimed by the President. 12 U.S.C.A. § 95.
BANK NIGHT. A device by which a theater pro-
vides a registration book which any person over
eighteen years of age, whether a patron of the
theater or not, may sign. The book is placed in
the lobby or outside the doors of the theater and
no charge is made for registration nor need one
who does so buy a ticket to the theater. A num-
ber is given to each name. On stated occasions,
the numbers representing all the names regis-
tered are placed in a container on the stage of
the theater and one number is drawn. The name
of the person having that registration number is
announced both inside and outside the theater
and on coming forward within a certain time, he
receives a sum of money which the theater pro-
vides from its own funds. If the person whose
number is drawn is outside the theater, he is per-
mitted to enter and claim the award without pay-
ing the admission. If he does not come forward
within the time set, the money is added to the
sum to be awarded on the next bank night. Un-
der the plan, various safeguards are thrown about
the operation to insure fairness in the allotment
of the money. State v. Dorau, 124 Conn. 160, 198
A. 573, 574. If not a lottery, a bank night is at
least a gift enterprise. Barker v. State, 56 Ga.
App. 705, 193 S.E. 605, 609. But it is generally
considered to be a lottery. State ex rel. Hunter
v. Fox Beatrice Theatre Corporation, 133 Neb.
392, 275 N.W. 605, 606; Furst v. A. & G. Amuse-
ment Co., 128 N.J.L. 311, 25 A.2d 892, 893; Com-
monwealth v. Lund, 142 Pa.Super. 208, 15 A.2d
839, 846.
BANKABLE PAPER. In mercantile law. Notes,
checks, bank bills, drafts, and other securities for
money, received as cash by the banks. The term
does not necessarily mean discountable paper, but
paper of such high credit that, if the time of pay-
ment was reasonable and the banks had loanable
funds, they would ordinarily discount it. Edward
P. Allis Co. v. Madison Electric Light, Heat &
Power Co., 9 S.D. 459, 70 N.W. 650, 652.
National bank notes are received as bankable money
without regard to the locality of the bank issuing them.
U.S.Rev.Stat. § 5133 (12 USCA § 21); Veazie Bank v. Fen-
no, 8 Wall. 533, 19 L.Ed. 482.
BANKER. A private person who keeps a bank;
one who is engaged in the business of banking.
People v. Doty, 80 N.Y. 228; Auten v. Bank, 19
S.Ct. 628, 174 U.S. 125, 43 L.Ed 920.
Individual Banker
Under some statutes, an individual banker, as
distinguished from a "private banker" (q. v.), is a
person who, having complied with the statutory
requirements, has received authority from the
state to engage in the business of banking, while
a private banker is a person engaged in banking
without having any special privileges or authority
from the state. Perkins v. Smith, 116 N.Y. 441,
23 N.E. 21.
Private Banker
One who carries on the business of banking
without being incorporated. State of Missouri v.
Angle, C.C.A.Mo., 236 F. 644, 650; Herzog v.
Transatlantic Trust Co., Sup., 172 N.Y.S. 394, 395.
One who carries on the business of banking by re-
ceiving money on deposit with or without interest,
by buying and selling bills of exchange, promis-
sory notes, gold or silver coin, bullion, uncurrent
money, bonds or stock, or other securities, and
by loaning money without being incorporated.
State ex rel. Barker v. Sage, 267 Mo. 493, 184 S.W.
984, 988. See Individual banker, supra.
BANKER'S ACCEPTANCE. A draft or bill of
exchange of which the acceptor is a bank or
banker engaged generally in the business of
granting bankers' acceptance credits. Atterbury
v. Bank of Washington Heights of City of New
York, 241 N.Y. 231, 149 N.E. 841, 843.
BANKER'S LIEN. A lien which a banker has
by virtue of which he can appropriate any money
or property in his possession belonging to a cus-
tomer to the extinguishment of any matured debt
of such customer to the bank, provided such prop-
erty or money has not been charged, with the
knowledge of the bank, with the subservience of
a special burden or purpose, or does not constitute
a trust fund of which the banker has notice.
American Surety Co. of New York v. Bank of
Italy, 63 Cal.App. 149, 218 P. 466, 468.
BANKER'S NOTE. A commercial instrument re-
sembling a bank note in every particular except
that it is given by a private banker or unincorpo-
rated banking institution. 6 Mod. 29; 3 Chit.
Comm.Law 590.
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BANKEROUT
BANKEROUT. 0. Eng. Bankrupt; insolvent;
indebted beyond the means of payment.
BANKING. The business of receiving money on
deposit, losaning money, discounting notes, issuing
notes for circulation, collecting money on notes
deposited, negotiating bills, etc. Bank v. Turner,
154 Ind. 456, 57 N.E. 110.
The business of banking, as defined by law and custom,
consists in the issue of notes payable on demand intended
to circulate as money when the banks are banks of issue;
In receiving deposits payable on demand ; in discounting
commercial paper ; making loans of money on collateral
security; buying and selling bills of exchange; negotiat-
ing loans, and dealing in negotiable securities issued by
the government, state and national, and municipal and oth-
er corporations. Mercantile Bank v. New York, 121 U.S.
138, 156, 7 S.Ct. 826, 30 L.Ed. 895 ; In re Prudence Co., D.
C.N.Y., 10 F.Supp. 33, 36.
Having a place of business where deposits are received
and paid out on checks and where money is loaned on
security is the substance of the "business of banking."
Marvin v. Kentucky Title Trust Co., 218 Ky. 135, 291. S.W.
17, 18, 50 A.L.R. 1337; State of Kansas ex rel. Boynton v.
Hayes, C.C.A.Kan., 62 F.2d 597, 600.
BANKING A DEAL. Means making to one who
wishes to consummate a deal a loan of money on
collateral for a consideration which may consist of
interest, a fee, or a part of the securities or prop-
erty involved in the deal. Cray, McFawn & Co.
v. Hegarty, Conroy & Co., D.C.N.Y., 27 F.Supp. 93,
99.
BANKING GAME. Gambling game at which mon-
ey is bet or hazarded. State v. Singley, 195 La.
519, 197 So. 218, 219.
BANKING HOURS. A term which, in addition to
the regular hours, includes time to allow present-
ment, after closing, to the bank returning a check,
if such presentment is necessary in fact. Colum-
bia-Knickerbocker Trust Co. v. Miller, 156 App.
Div. 810, 142 N.Y.S. 440, 445.
BANKRUPT. Originally and strictly, a trader
who secretes himself or does certain other acts
tending to defraud his creditors. 2 Bl.Comm. 471;
Shor v. McGregor, C.C.A.Tex., 108 F.2d 421, 423.
In a looser sense, an insolvent person; a broken-
up or ruined trader. Everett v. Stone, 3 Story,
453, Fed.Cas.No.4,577.
In the English law there were two characteristics which
distinguished bankrupts from insolvents : the former must
have been a trader and the object of the proceedings
against, not by, him. As used in American law, the dis-
tinction between a bankrupt and an insolvent is not gen-
erally regarded. Sturges v. Crowninshield, 4 Wheat. 122,
4 L.Ed. 529; 2 Kent, 390; McCormick v. Pickering, 4 N.Y.
283. On the continent of Europe, however, the distinction
still exists. Holtz.Enc. voc. sig. Bankerott.
A person who has committed an act of bank-
ruptcy; one who has done some act or suffered
some act to be done in consequence of which,
under the laws of his country, he is liable to be
proceeded against by his creditors for the seizure
and distribution among them of his entire prop-
erty. Ashby v. Steere, 2 Woodb. & M. 347, 2 Fed.
Cas. 15; In re Scott, 21 Fed.Cas. 803; U. S. v.
Pusey, 27 Fed.Cas. 632. For "Examination of
bankrupt", see Examination.
The term includes one against whom involuntary petition
has been filed. United States v. Agresti, C.C.A.N.Y., 130
F.2d 152, 153, 154.
A person who, by the formal decree of a court,
has been declared subject to be proceeded against
under the bankruptcy laws, or entitled, on his vol-
untary application, to take the benefit of such
laws. See Bankruptcy Act July 1, 1898, c. 541, §
1, 30 Stat. 544 (11 USCA § 1).
BANKRUPT LAW. A law for benefit and relief
of creditors and their debtors in cases in which
the latter are unable or unwilling to pay their
debts. Campbell v. Alleghany Corporation, C.C.
A.Md., 75 F.2d 947, 951.
A bankrupt law is distinguished from the ordinary law
between debtor and creditor, as involving these three gen-
eral principles : (1) A summary and immediate seizure of
all the debtor's property; (2) a distribution of it among
the creditors in general, instead of merely applying a por-
tion of it to the payment of the individual complainant;
and (3) the discharge of the debtor from future liability
for the debts then existing.
The leading distinction between a bankrupt law and an
insolvent law, in the proper technical sense, consists in the
character of the persons upon whom it is designed to op-
erate,—the former contemplating as its objects bankrupts
only, that is, traders of a certain description; the latter;
insolvents in general, or persons unable to pay their debts.
This has led to a marked separation between the two sys-
tems, in principle and in practice, which in England has
always been carefully maintained, although in the United
States it has of late been disregarded. A bankrupt law,
moreover, in its proper sense, is a remedy intended pri-
marily for the benefit of creditors; it is set In motion at
their instance, and operates upon the debtor against his
will, (in invitum,) although in its result it effectually dis-
charges him from his debts. An insolvent law, on the
other hand, is chiefly intended for the benefit of the debt-
or, and' is set in motion at his instance, though possibly
less effective as a discharge in its final result. Sturges
v. Crowninshield, 4 Wheat. 194, 4 L.Ed. 529; Vanuxen v.
Hazlehursts, 4 N.J.Law, 192, 7 Am.Dec. 582; Adams v.
Storey, 1 Paine, 79, 1 Fed.Cas. 142; Kunzler v. Kohaus, 5
Hill (N.Y.) 317.
The only substantial difference between a strictly bank-
rupt law and an insolvent law lies in the circumstance that
the former affords relief upon the application of the credi-
tor, and the latter upon the application of the debtor.
Martin v. Berry, 37 Cal. 222.
BANKRUPTCY. The state or condition of one
who is a bankrupt; amenability to the bankrupt
laws; the condition of one who has committed
an act of bankruptcy, and is liable to be proceeded
against by his creditors therefor, or of one whose
circumstances are such that he is entitled, on his
voluntary application, to take the benefit of the
bankrupt laws.
The term is used in a looser sense as synony-
mous with "insolvency,"—inability to pay one's
debts; the stopping and breaking up of business
because the trader is broken down, insolvent,
ruined. Phipps v. Harding, C.C.A.Wis., 70 Fed.
468, 17 C.C.A. 203, 30 L.R.A. 513.
It constitutes a branch of equity jurisprudence. In re
Flour Mills of America, D.C.Mo., 27 F.Supp. 559, 560.
Its purpose is to secure finally to creditors distribution of
value of at least part of debtor's assets and to bankrupt
discharge from his debts, to end that creditors may be
paid as much as may be and that bankrupt may have new
start in life. In re Jones, D.C.Mo., 10 F.Supp. 165, 167.
Insolvency means a simple inability to pay as debts
should become payable, whereby the debtor's business
would be broken up; bankruptcy means the particular le-
gal status, to be ascertained and declared by a judicial de-
cree. In re Black, 2 Ben. 196, Fed.Cas.No.1,457.
The proceedings taken under the bankrupt law,
against a person (or firm or company) to have
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BAR
him adjudged a bankrupt, and to have his estate
administered for the benefit of the creditors, and
divided among them. That branch of jurispru-
dence, or system of law and practice, which is con-
cerned with the definition and ascertainment of
acts of bankruptcy and the administration of
bankrupts' estates for the benefit of their credi-
tors and the absolution and restitution of bank-
rupts.
Act of Bankruptcy. See Act.
Adjudication of Bankruptcy
The judgment or decree of a court having juris-
diction, that a person against whom a petition in
bankruptcy has been filed, or who has filed his
voluntary petition, be ordered and adjudged to be
a bankrupt.
Bankruptcy Courts. Courts for the administra-
tion of the bankrupt laws.
Bankruptcy Proceedings
This term includes all proceedings in a federal
court having jurisdiction in bankruptcy, founded
on a petition in bankruptcy and either directly
or collaterally involved in the adjudication and
discharge of the bankrupt and the collection and
administration of his estate. Kidder v. Horrobin,
72 N.Y. 167. See, also, Proceedings in bankruptcy.
Steps in administration of estate in bar kruptcy
court within summary jurisdiction of bankruptcy
court. (Bankr.Act, § 24a, b, 11 U.S.C.A. § 47(a)
(b). Childs v. Ultramares Corporation, C.C.A.
N.Y., 40 F.2d 474, 477.
Controversies Arising in Bankruptcy Proceed-
ings. See Proceedings in bankruptcy.
Extension. See Extension.
Involuntary Bankruptcy. See Voluntary bank-
ruptcy, infra.
Voluntary Bankruptcy
Bankruptcy (in the sense of proceedings taken
under the bankruptcy law) is either voluntary or
involuntary; the former where the proceeding
is initiated by the debtor's own petition to be ad-
judged a bankrupt and have the benefit of the
law. In re Murray, D.C.Iowa, 96 F. 600; Metsker
v. Bonebrake, 2 Sup.Ct. 351, 108 U.S. 66, 27 L.Ed.
654, the latter where he is forced into bankruptcy
on the petition of a sufficient number of his credi-
tors.
See Bankrupt; Bankrupt Law.
Bankruptcy Rule
Allows claim only for amount of debt, less value
of security. In re Baker, 333 Pa. 273, 3 A.2d 785,
786.
BANLEUCA. (Same as the French banlieue).
An old law term, signifying a space or tract of
country around a city, town, or monastery, dis-
tinguished and protected by peculiar privileges.
Spelman.
BANLIEU, or BANLIEUE. In French and Cana-
dian law. The same as banleuca (q. v.).
BANNER. A small flag bearing a device or sym-
bol and intended to be carried or waved. L.R. 2
P.C. 387. The term includes a canvas, parti-col-
ored or bearing party words and stretched across
a street. 4 O'M. & H. 179.
BANNERET. See Baneret.•
BANNI, or BANNITUS. In old law, one under a
ban, (q. v.;) an outlaw or banished man. Britt.
cc. 12, 13; Calvin.
BANNI NUPTIARUM. L. Lat. In old English
law. The bans of matrimony.
BANNIMUS. Lat. We ban or expel. The form
of expulsion of a member f r om the University of
Oxford, by affixing the sentence in some public
places, as a promulgation of it. Cowell.
BANNIRE AD PLACITA, AD MOLENDINUM.
To summon tenants to serve at the lord's courts,
to bring corn to be ground at his mill.
BANNITIO. Banishment; expulsion by a ban
or public proclamation. Adams Gloss.
BANNITUS. See Banni.
BANNS OF MATRIMONY. Public notice or proc-
lamation of a matrimonial contract, and the in-
tended celebration of the marriage of the parties
in pursuance of such contract. Cowell; 1 Bla.
Comm. 439; Pothier, Du Man age p. 2, c. 2.
Such announcement is required by the English law to
be made in a church or chapel, during service, on three
consecutive Sundays before the marriage is celebrated.
The object is to afford an opportunity for any person to
interpose an objection if he knows of any impediment or
other just cause why the marriage should not take place.
The publication of the banns may be dispensed with by
procuring a special license to marry.
]ANNUM. A ban (q. v.).
BANNUS. In old English law. A proclamation.
Bannus regis; the king's proclamation, made by
the voice of a herald, forbidding all present at the
tr ial by combat to interfere either by motion or
word, whatever they might see or hear. Bract.
fol. 142.
BANQUE. Fr. A bench; the table or counter of
a trader, merchant, or banker. Banque route;
a broken bench or counter; bankrupt.
BANS OF MATRIMONY. See Banns of Matri-
mony.
BANYAN. In East Indian law. A Hindoo mer-
chant or shop-keeper. The word is used in Bengal
to denote the native who manages the money con-
cerns of a European, and sometimes serves him
as an interpreter.
BAR. A partition or railing running across a
court-room, intended to separate the general
public from the space occupied by the judges,
counsel, jury, and others concerned in the trial
of a cause. In the English courts it is the parti-
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tion behind which all outer-barristers and every
member of the public must stand. Solicitors,
being officers of the court, are admitted within it;
as are also queen's counsel, barristers with pat-
ents of precedence, and serjeants, in virtue of
their ranks. Parties who appear in person also
are placed within the bar on the floor of the court.
A particular part of the court-room; for exam-
ple, the place where prisoners stand at their trial,
hence the expression "prisoner at the bar."
The court, in its strictest sense, sitting in full
term. The presence, actual or constructive, of the
court. Thus, a trial at bar is one had before the
full court, distinguished from a trial had before a
single judge at nisi prius. So the "case at bar" is
the case now before the court and under its con-
sideration; the case being tried or argued.
In another sense, the whole body of attorneys
and counsellors, or the members of the legal pro-
fession, collectively, who are figuratively called
the "bar," from the place which they usually oc-
cupy in court. They are thus distinguished from
the "bench," which term denotes the whole body
of judges.
In the practice of legislative bodies, the outer
boundary of the house; therefore, all persons,
not being members, who wish to address the
house, or are summoned to it, appear at the bar
for that purpose.
In the law of contracts, an impediment, obsta-
cle, or preventive barrier. -
Thus, relationship within the prohibited degrees is a bar
to marriage. In this sense also we speak of the "bar of
the statute of limitations."
That which defeats, annuls, cuts off, or puts an
end to.
Thus, a provision "in bar of dower" is one which has
the effect of defeating or cutting off the dower-rights
which the wife would otherwise become entitled to in the
particular land.
In pleading, a special plea, constituting a suffi-
cient answer to an action at law; so called be-
cause it barred, i. e., prevented, the plaintiff from
further prosecuting it with effect, and, if estab-
lished by proof, defeated and destroyed the ac-
tion altogether. Now called a special "plea in
bar." It may be further described as a plea or
peremptory exception of a defendant to destroy
the plaintiff's action. City of San Antonio v. John-
son, Tex.Civ.App., 186 S.W. 866. See Plea in bar.
A barrier or counter over which liquors and
food are passed to customers, hence the portion of
the room behind the counter where the liquors for
sale are kept. Hinton v. State, 137 Tex.Cr.R. 352,
129 S.W.2d 670, 673.
BAR ASSOCIATION. An association of members
of the bar. Such associations have been organized
in most states. The first was in Mississippi in
1825, but it is not known to have had a continued
existence. An association of Grafton and Coos
counties in New Hampshire had an existence
before 1800, and probably a more or less continu-
ous life since then, having finally merged into a
state association. Similar associations exist in
many of the counties in various states.
—Bar integration. See Integrated Bar,
BAR FEE, In English law. A fee taken by the
sheriff, time out of mind, for every prisoner who
is acquitted. Bac.Abr. "Extortion." Abolished by
St. 14 Geo. III. c. 26; 55 Geo. III. c. 50; 8 & 9
Vict. c. 114.
BAR ROOM. A place where intoxicating liquors
are sold to be drunk on the same premises. City
of Spokane v. Baughman, 103 P. 14, 17, 54 Wash.
315.
A room containing a bar or counter at which
liquors are sold, or a room with a bar where
liquors and refreshments are served. Mustard
v. Elwood, C.C.A.Alaska, 223 F. 225, 226.
The words "bar" and "bar room" have a more restric-
tive meaning than "saloon," and mean a place from which
intoxicating liquors are to be sold. Greil Bros. Co. v.
Mabson, 179 Ala. 444, 60 So. 876, 877, 43 L.R.A.,N.S., 664.
BAR SINISTER. A term popularly though er-
roneously used for baton, a mark of illegitimacy.
Webster.
BARAGARIA. Span. A concubine, whom a man
keeps alone in his house, unconnected with any
other woman. Las Partidas, pt. 4, tit. 14.
BARAT. See Berat,
BARATRIAM COMMITTIT QUI PROPTER PE-
CUNIAM JUSTITIAM BARACTAT. He is guilty
of barratry who for money sells justice. Bell.
(This maxim, however, is one pertaining more to
the meaning of "barratry" as used in Scotch law
than to its common-law meaning. See Barratry.)
BARBANUS. In old Lombardic law. An uncle,
(patruus.)
BARBAROUS. As used in a divorce statute, it
implies a merciless and savage disposition, taking
pleasure in suffering, without pity, and with an
evil and malicious will. Hansell v. Hansell, 15
Pa.Co.Ct.R., 514, 515.
BARBER. One who makes a business of shaving
and trimming beards and cutting and dressing
hair. Dellacorte v. Gentile, 98 N.J.Eq. 194, 129 A.
739, 740.
The term has been held to include a woman, who, being
employed in a beauty parlor serving women customers ex-
clusively, cut a woman's hair in the style of bobbed hair.
State v. Leftwich, 142 Wash. 329, 253 P. 448, 449, 59 A.L.R.
539. But it has also been thought that the proprietor of a
"hairdressing and beauty parlor," the important features
of whose business included cutting hair, massaging, clip-
ping hair with barber clippers, singeing the hair, giving
tonics, shampooing, and manicuring, but not shaving the
face, was not a "barber" within a statute subjecting bar-
bers to examination and regulation. Keith v. State Barber
Board, 112 Kan. 834, 212 P. 871, 872, 31 A.L.R. 432.
In England in former times, barbers also practiced sur-
gery and dentistry, but by 32 Hen. VIII, c. 42, barbers, al-
though they were thereby incorporated with the surgeons
of London, were not to practice surgery, except the draw-
ing of teeth.
BARBICANAGE. In old European law. Money
paid to support a barbican or watchtower.
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BARBITTS. L. Fr. (Modern Fr. brebis.) Sheep.
BARE. Naked; without a covering; unaccompa-
nied.
BARE OR MERE LICENSEE. One whose pres-
ence on premises is merely tolerated; while a
"licensee" or "invitee" is one who is on the prem-
ises by invitation, express or implied. Chicago,
R. I. & P. Ry. Co. v. McCleary, 175 Okl. 347, 53 P.2d
555, 557.
BARE PATENT LICENSE. A grant of authority
to make, use or vend patented product throughout
the United States or in a given part thereof, with
no right of exclusion. 35 U.S.C.A. § 47. Innis,
Speiden & Co. v. Food Machinery Corporation, D.
C.Del., 2 F.R.D. 261, 263.
BARE TRUSTEE. One whose trust is to convey,
and the time has arrived for a conveyance by him;
or a trustee to whose office no duties were origi-
nally attached, or who, although such duties were
originally attached to his office, would, on the req-
uisition of his cestuis que trust, be compellable in
equity to convey the estate to them or by their
direction. Christie v. Ovington, 1 Ch.Div. 279, 281.
BAREBONES PARLIAMENT. A parliament sum-
moned by Cromwell in 1653.
BARET. L. Fr. A wrangling suit. Britt. c. 92;
Co.Litt. 368b.
BARGAIN. A mutual undertaking, contract, or
agreement.
A contract or agreement between two parties,
the one to sell goods or lands, and the other to
buy them. Bank v. Archer, 16 Miss. 192.
As a verb, to sell for cash, or on terms, rather
than to trade or exchange. In re Wellings' Es-
tate, 197 Cal. 189, 240 P. 21, 24.
"If the word 'agreement' imports a mutual act of two
parties, surely the word 'bargain' is not less significative
of the consent of two. In a popular sense, the former
word is frequently used as declaring the engagement of
one only. A man may agree to pay money or to perform
some other act, and the word is then used synonymously.
with 'promise' or 'engage.' But the word 'bargain' is sel-
dom used, unless to express a mutual contract or under-
taking." Packard v. Richardson, 17 Mass. 131, 9 Am.Dec.
123.
BARNARD'S
BARGAIN AND SALE. In conveyancing. The
transferring of the property of a thing from one
to another, upon valuable consideration, by way
of sale. Shep.Touch. (by Preston,) 221.
A contract or bargain by the owner of land, in
consideration of money or its equivalent paid, to
sell land to another person, called the "bar-
gainee," whereupon a use arises in favor of the
latter, to whom the seisin is transferred by force
of the statute of uses. Laing v. McClung, 103 W.
Va. 341, 137 S.E. 744, 745.
The proper and technical words to denote a bargain and
sale are "bargain and sell ;" but any other words that are
sufficient to raise a use upon a valuable consideration are
sufficient. 2 Wood.Conv. 15; Jackson ex dem. Hudson v.
Alexander, 3 Johns. (N.Y.) 484, 3 Am.Dec. 517.
The expression "bargain and sale" is also applied to
transfers of personalty, in cases where there is first an ex-
ecutory agreement for the sale, (the bargain,) and then
an actual and completed sale.
BARGAIN OR CONTRACT IN RESTRAINT OF
TRADE. Any bargain or contract which purports
to limit in any way right of either party to work
or to do business. Stoia v. Miskinis, 298 Mich.
105, 298 N.W. 469, 474.
BARGAINEE. The grantee of an estate in a
deed of bargain and sale. The party to a bar-
gain to whom the subject-matter of the bargain or
thing bargained for is to go.
BARGAINOR. The person who makes a bargain.
The party to a bargain who is to receive the con-
sideration and perform the contract by delivery
of the subject-matter.
BARGE. Name originally applied to a small
sailing vessel but afterwards came into general
use for a flat bottomed boat used for carrying
goods on inland waterways. Barges are usually
towed or fitted with some kind of engine. The
Sakito Maru, D.C.Cal., 41 F.Supp. 769, 778.
BARK. It is sometimes figuratively used to de-
note the mere words or letter of an instrument,
or outer covering of the ideas sought to be ex-
pressed, as distinguished from its inner substance
or essential meaning. "If the bark makes for
them, the pith makes for us." Bacon.
BARLEYCORN. In linear measure. The third of
an inch.
BARMOTE COURTS. Courts held in certain min-
ing districts belonging to the Duchy of Lancaster,
for regulation of the mines, and for deciding ques-
tions of title and other matters relating thereto.
3 Steph.Comm. 347, note b.
BARN. A covered building for securing produc-
tions of the earth. Washington v. Arizona, 46
Ariz. 446, 52 P.2d 476, 478.
It may be both a cornhouse and a stable; State v. Smith,
28 Iowa 565, 568; and has been used interchangeably with
stable; Saylor v. Commonwealth, 22 Ky.L.Rep. 472, 57 S.
W. 614, 615.
—Bargain money. These words in a contract for
the sale of land have much the same significance
as earnest money. Morgan v. Forbes, 236 Mass.
480, 128 N.E. 792, 793.
—Catching bargain. A bargain by which money is
loaned, at an extortionate or extravagant rate, to
an heir or any one who has an estate in reversion
or expectancy, to be repaid on the vesting of his
interest; or a similar unconscionable bargain with
such person for the purchase outright of his ex-
pectancy. See Edler v. Frazier, 174 Iowa, 46, 156
N.W. 182, 187. That kind of fraud often perpe-
trated upon young, inexperienced, or ignorant
people. Provident Life & Trust Co. v. Fletcher,
C.C.A.N.Y., 258 F. 583, 586.
See Unconscionable Bargain
BARNARD'S INN. An inn of chancery. See Inns
of Chancery.
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BARO
BARO. In old law, a man, whether slave or free.
In later usage, a freeman or freedman; a strong
man; a good soldier; a hired soldier; a vassal;
a baron; a feudal tenant or client. A man of dig-
nity and rank; a knight.  A magnate in the
church. A judge in the exchequer (baro scac-
carii). The first-born child. A husband.
The word is said by Spelman to have been used more
frequently in the last sense; Spelman, Gloss.
BARON. A lord or nobleman; the most general
title of nobility in England. 1 Bl.Comm. 398, 399.
A particular degree or title of nobility, next to a
viscount. The lowest title in Great Britain. A
judge of the court of exchequer. 3 Bl.Comm. 44;
Cowell. A freeman. Co.Litt. 58a. Also a vassal
holding directly from the king. A husband; oc-
curring in this sense in the phrase "baron et
feme," husband and wife.
The term has essentially the same meanings as Baro (q.
v.).
BARON COURT. See Court-Baron.
BARON ET FEME. Man and woman; husband
and wife. Spelman, Gloss.; 1 Bla.Comm. 442.
A wife being under the protection and influence of her
baron, lord, or husband, is styled a "feme-covert," (fce-
mina viro cooperta,) and her state of marriage is called
her "coverture." Cummings v. Everett, 82 Me. 260, 19 A.
456.
BARONS OF THE CINQUE PORTS. Members
bf parliament from these ports, viz.: Sandwich,
Romney, Hastings, Hythe, and Dover. Winchel-
sea and Rye have been added. See Cinque Ports.
BARONS OF THE EXCHEQUER. The six judges
of the court of exchequer in England, of whom one
is styled the "chief baron;" answering to the jus-
tices and chief justice of other courts.
BARONAGE. In English law. The collective
body of the barons, or of the nobility at large.
Spelman.
BARONES SCACCARII. See Barons of the Ex-
chequer.
BARONET. An English name or hereditary title
of dignity or rank (but not a title of nobility, be-
ing next below that of baron), established in 1611
by James I. It is created by letters patent, and
descends to the male heir. Spelman.
BARONY. The dignity of a baron; a species of
tenure; the territory or lands held by a baron.
Spelman; 2 Holdsw.Hist.Eng.L. 159.
In Scotland, a large freehold estate, even
though the proprietor is not a baron. See Barony
of Land, infra.
BARONY OF LAND. In England, a quantity of
land amounting to 15 acres. In Ireland, a subdi-
vision of a county.
BARRA, or BARRE. In old practice. A plea in
bar. The bar of the court. A barrister.
BARRATOR. One who commits barratry. See
Barretor,
BARRATROUS. Fraudulent; having the charac-
ter of barratry.
BARRATRY. In criminal law. Also spelled "Bar-
retry." The offense of frequently exciting and
stirring up quarrels and suits, either at law or
otherwise. 4 Bla.Com. 134; State v. Batson, 220
N.C. 411, 17 S.E.2d 511, 512, 513.
Common barratry is the practice of exciting groundless
judicial proceedings. Pen.Code Cal. § 158; Lucas v. Pico,
55 Cal. 128; Corn. v. McCulloch, 15 Mass. 229; Ex parte
McCloskey, 82 Tex.Cr.R. 531, 199 S.W. 1101, 1102.
In maritime law. An act committed by the mas-
ter or mariners of a vessel, for some unlawful or
fraudulent purpose, contrary to their duty to the
owners, whereby the latter sustain injury. It may
include negligence, if so gross as to evidence
fraud. Hansen v. Barnard, C.C.A.N.Y., 270 F.
163, 166.
Some fraudulent act of the master or mariners, tending
to their own benefit, to the prejudice of the owner of the
vessel, without his privity or consent. Kendrick v. Dela-
field, 2 Caines N.Y. 67.
A generic term, which includes many acts of various
kinds and degrees. It comprehends any unlawful, fraudu-
lent, or dishonest act of the master or mariners, and every
violation of duty by them arising from gross and culpable
negligence contrary to their duty to the owner of the ves-
sel, and which might work loss or injury to him in the
course of the voyage insured. A mutiny of the crew, and
forcible dispossession by them of the master and other
officers from the ship, is a form of barratry. Greene v.
Pacific Mut. Ins. Co., 9 Allen, Mass., 217.
In Scotch law. The crime committed by a judge
who receives a bribe for his judgment. Skene;
Brande.
See Champerty.
BARRED. Obstructed by a bar; subject to hin-
drance or obstruction by a bar or barrier which,
if interposed, will prevent legal redress or recov-
ery; as, when it is said that a claim or cause of
action is "barred by the statute of limitations."
Wilson v. Knox County, 132 Mo. 387, 34 S.W. 45,
477.
BARREL. A measure of capacity, equal (in Eng-
land) to 36 imperial gallons. The standard United
States measure, except as to barrels of petroleum,
equals 311/2 gallons. Pope v. Joschke, Tex.Civ.
App., 228 S.W. 986, 987.
In agricultural and mercantile parlance, as al-
so in the inspection laws, the term means, prima
facie, not merely a certain quantity, but, further,
a certain state of the article; namely, that it is
in a cask. State v. Moore, 33 N.C. 72.
BARREN MONEY. In the civil law. A debt
which bears no interest.
BARRENNESS. Sterility; the incapacity to bear
children.
BARRETOR. In criminal law. A common mover,
exciter, or maintainer of suits and quarrels either
in courts or elsewhere in the country; a disturber
of the peace who spreads false rumors and cal-
umnies, whereby discord and disquiet may grow
among neighbors. Co.Litt. 368.
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BASE
Common Barretor
One who frequently excites and stirs up ground-
less suits and quarrels, either at law or otherwise.
Mate v. Batson, 220 N.C. 411, 17 S.E.2d 511, 512,
513.
BARRETRY. In criminal law. The act or offense
of a barretor, (q. v.;) usually called "common
barretry." 4 Steph.Comm. 262. See Barratry.
BARRICADE. An obstruction or block to prevent
passage. Schawe v. Leyendecker, Tex.Civ.App.,
269 S.W. 864, 866; Crowley v. City of Raymond,
198 Wash. 432, 88 P.2d 858, 859.
BARRIER. A fence. Page Steel & Wire Co. v.
Smith Bros. Hardware Co., C.C.A.Ohio, 64 F.2d
512.
In mining law and the usage of miners, a wall of coal
left between two mines.
BARRISTER. In English law. An advocate; a
counsellor learned in the law who has been ad-
mitted to plead at the bar, and who is engaged in
conducting the trial or argument of causes.
To be distinguished from the attorney, who draws the
pleadings, prepares the testimony, and conducts matters
out of court. In re Rickert, 66 N.H. 207, 29 Atl. 559, 24 L.
R.A. 740.
See King's Counsel.
Inner Barrister
A serjeant or king's counsel who pleads within
the bar.
Junior Barrister
A barrister under the rank of queen's counsel.
Also the junior of two counsel employed on the
same side in a case. Mozley & Whitley.
Outer or Utter Barrister
One who pleads "outer" or without the bar.
Such barristers were so called because they sat "utter-
most on the forms of the benchers which they call the
bar." 29 L.Q.R. 25. They are distinguished from bench-
ers, or those who have been readers, and are allowed to
plead within the bar, as are the king's counsel.
Utter Barrister
The same as "Outer barrister," supra.
Vacation Barrister
A counsellor newly called to the bar, who is to
attend for several long vacations the exercises
of the house.
BART. The usual abbreviation for Baronet
(q. v.).
BARTER. A contract by which parties exchange
goods or commodities for other goods. Finker v.
Boyer, 331 Mo. 1242, 56 S.W.2d 372.
It differs from sale, in this : that in the latter transac-
tion goods or property are always exchanged for money.
Guerreiro v. Peile, 3 Barn. & Ald. 617; Cooper v. State, 37
Ark. 418; Meyer v. Rousseau, 47 Ark. 460, 2 S. W. 112.
In a sale there is a fixed price; in a barter there is not.
Speigle v. Meredith, 4 Biss. 120, Fed.Cas.No.13,227.
This term is not applied to contracts .concerning land,
but to such only as relate to goods and chattels. Speigle
v. Meredith, 4 Biss. 123, Fed.Cas.No.13,227.
It sometimes signifies a corrupt transaction. In re Troy,
43 R.I. 279, 111 A. 723, 724.
BARTON. In old English law. The demesne land
of a manor; a farm distinct from the mansion.
Sometimes it is used for the manor house itself ; and in
some places for out houses and fold yards. In tifé statute-
2 & 3 Edw. 6, c. 12, Barton lands and demesne lands are-
used as synonymous. Cowell.
BAS. Fr. Low; inferior; subordinate.
BAS CHEVALIERS. In old English law. Low,
or inferior knights, by tenure of a base military
fee, as distinguished from barons and bannerets,
who were the chief or superior knights. Cowell;
Kennett, Paroch.Ant.; Blount.
BAS VILLE, In French law. The suburbs of a
town.
BASAL FRACTURE. A fracture of the skull be-
ginning at the base of the skull to the rear and
left extending to the top of the skull. Marland
Refining Co. v. McClung, 102 Okl. 56, 226 P. 312,
313.
BASE, adj. Low; inferior; servile; of subordi-
nate degree; impure, adulterated, or alloyed.
—Base animal. See Animal.
—Base bullion. Base silver bullion is silver in bars
mixed to a greater or less extent with alloys or
base materials. Hope Min. Co. v. Kennon, 3 Mont.
44.
—Base coin. Debased, adulterated, or alloyed
coin. Gabe v. State, 6 Ark. 540; Cohens v. Vir-
ginia, 6 Wheat. 333, 5 L.Ed. 257.
—Base court. In English law. An inferior court,
that is, not of record, as the court baron. Cun-
ningham; Kitch. 95, 96; Cowell.
—Base estate. The estate which "base tenants"
(q. v.) have in their land. Cowell.
—Base fee. In English law. An estate or fee
which has a qualification subjoined thereto, and
which must be determined whenever the qualifi-
cation annexed to it is at an end. 2 Bl.Comm. 109.
Wiggins Ferry Co. v. Railroad Co., 94 Ill. 93; Sco-
bey v. Beckman, 111 Ind.App. 574, 41 N.E.2d 847,
850.
It is a fee for the reason that it may last for-
ever if the contingency does not happen, but de-
based because its duration depends upon collateral
circumstances which qualify it. McIntyre v. Die-
trich, 128 N.E. 321, 322, 294 Ill. 126; sometimes
called a conditional fee; Citizens' Electric Co. v.
Susquehanna Boom Co., 113 A. 559, 561, 270 Pa.
517; a determinable fee; Penick v. Atkinson, 77
S.E. 1055, 1057, 139 Ga. 649, 46 L.R.A.,N.S., 284,
Ann.Cas.1914B, 842; or a qualified fee; In re
Douglass' Estate, 143 N.W. 299, 302, 94 Neb. 280,
Ann.Cas.1914D, 447. Burche v. Neal, 149 S.E.
611, 612, 107 W.Va. 559.
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BASE
—Base infeftment. In Scotch law. A disposition
of lands by a vassal, to be held of himself.
—Base right. In Scotch law. A subordinate
right; the right of a subvassal in the lands held
by him. Bell.
—Base services. In feudal law. Such services as
were unworthy to be performed by the nobler
men, and were performed by the peasants and
those of servile rank. 2 Bla.Comm. 62; 1 Washb.
R.P. 25.
—Base tenants. Tenants who performed to their
lords services in villenage; tenants who held at
the will of the lord, as distinguished from frank
tenants, or freeholders. Cowell.
—Base tenure. A tenure by villenage, or other
customary service, as distinguished from tenure
by military service; or from tenure by free serv-
ice. Cowell.
BASE, n. Bottom, foundation, groundwork, that
on which a thing rests. Webster.
The locality on which a military or naval force
relies for supplies or from which it initiates opera-
tions. Webster. For example: air base; mili-
tary base; marine base; naval base; submarine
base.
—Base Hospital. See Hospital.
—Air Base. A military or naval establishment
forming a center of supporting activities for the
military or naval air arm; a training center for
air corps personnel; a place where equipment and
supplies of the air corps are kept. The term is in-
cluded in the word fort. Greenville Baseball v.
Bearden, 200 S.C. 363, 20 S.E.2d 813, 816.
—Submarine Base. A naval base for the housing,
repair and maintenance of submarines, for keep-
ing supplies; a place where personnel is trained;
a place from which operations are initiated.
BASED UPON. Means an initial or starting point
for calculation. State ex rel. Snidow v. State
Board of Equalization, 93 Mont. 19, 17 P.2d 68.
BASEBALL. A game of skill within the criminal
offense of betting on such a game. Mace v. State,
58 Ark. 79, 22 S.W. 1108.
When played by professionals for profit, it is a perform-
ance of worldly employment and business within the Sun-
day Law of Pennsylvania. Commonwealth v. American
Baseball Club of Philadelphia, 290 Pa. 136, 138 A. 497, 53
A. L. R. 1027.
BASEMENT. A floor partly beneath the surface
of the ground but distinguished from a cellar by
being well lighted and fitted for living purposes.
In England the ground floor of a city house.
BASIC OR PIONEER PATENT. One discovered
in new field and recognized by scientific world or
industry as startling, unexpected, and unprophe-
sied. Northwest Engineering Corporation v. Key-
stone Driller Co., C.C.A.Wis., 70 F.2d 13, 16.
BASILEUS. A Greek word, meaning "king." A.
title assumed by the emperors of the Eastern Ro-
man Empire. It is used by Justinian in some of
the Novels; and is said to have been applied to
the English kings before the Conquest. See 1 Bl.
Comm. 242.
BASILICA. The name given to a compilation of
Roman and Greek law, prepared about A.D. 880
by the Emperor Basilius, and published by his suc-
cessor, Leo the Philosopher. It was written in
Greek, was mainly an abridgment of Justinian's
Corpus Juris, and comprised sixty books, only a
portion of which are extant. It remained the law
of the Eastern Empire until the fall of Constanti-
nople, in 1453.
BASILS. In old English law. A kind of money or
coin abolished by Henry II.
BASIN. When speaking of a large river, ordinari-
ly means or includes the entire area drained by
the main stream and its tributaries. City of
Tulsa v. Peacock, 181 Okl. 383, 74 P.2d 359, 360.
In admiralty law and marine insurance. A part
of the sea inclosed in rocks. U. S. v. Morel, 13
Am.Jur. 286, 26 Fed.Cas. 1,310.
BASIS. Fundamental principle; groundwork;
support; foundation; the foundation or ground-
work of anything; that upon which anything may
rest or the principal component parts of a thing.
Tolmie v. San Diego Fruit & Produce Co., 57 Idaho
631, 68 P.2d 61, 64. State v. Kansas City & M.
Ry. & Bridge Co., 106 Ark. 248, 153 S.W. 614, 616.
BASKET TENURE. In feudal law. Lands held
by the service of making the king's baskets.
BASOCHE. Fr. An association of the "Clercs du
Parlement" of Paris, supposed to have been insti-
tuted in 1302. It judged all civil and criminal mat-
ters that arose among the clerks and all actions
brought against them. Hist. for Ready Reference.
BASSA, BASSO, or BASSUS. L. Lat. Low. Ad-
ams Gloss.
BASSA TENURA. See Base Fee.
BASSE JUSTICE. In feudal law. Low justice;
the right exercised by feudal lords of personally
trying persons charged with trespasses or minor
offenses.
BASSET. A card game resembling faro. It was
invented in Venice, and was widely popular in
Europe from about 1650 to' 1800.
BASTARD. An illegitimate child; a child born
of an unlawful intercourse, and before the lawful
marriage of its parents. Pettus v. Dawson, 82
Tex. 18, 17 S.W. 714.
A child born after marriage, but under circum-
stances which render it impossible that the hus-
band of his mother can be his father. State v.
Coliton, 73 N.D. 582, 17 N.W.2d 546, 548, 549, 156
A.L.R. 1403.
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BATTURE
A child is not a bastard if born after marriage, although
begotten before. 1 Bla.Com. 455, 456; 8 East, 210; State
v. Herman, 35 N.C. 502.
One begotten and born out of lawful wedlock. Ex parte
Newsome, 212 Ala. 168, 102 So. 216, 218.
This definition, which is substantially the same as Black-
stone's, is open to the objection that it does not include
with sufficient certainty those cases where children are
born during wedlock but are not the children of the moth-
er's husband.
Such children as are not born either in lawful wedlock
or within a competent time after its determination. In re
Paterson's Estate, 34 Cal.App.2d 305, 93 P.2d 825, 827.
One born of an illicit union. Civ.Code La. arts. 27, 197.
The term also includes a child born of parents while in a
state of slavery, inasmuch as the parents were under dis-
ability to contract marriage. Cole v. Taylor, 132 Tenn. 92,
177 S. W. 61, 65.
In Louisiana, "bastards," as distinguished from "natural
children," are illegitimate children who have not been ac-
knowledged by their parents. "Natural children" are
those who have been acknowledged by both or either of
their parents. Briggs v. McLaughlin, 134 La. 133, 63 SO.
851, 852.
—Bastard eigne. In old English law. Bastard.
elder. If a child was born of an illicit connec-
tion, and afterwards the parents intermarried and
had another son, the elder was called bastard
eigne, or, as it is now spelled, aine, and the second
son was called puisne, or since born, or sometimes
he was called mulier puisne. 2 Bla.Comm. 248.
—Special bastard. One born of parents before
marriage, the parents afterward intermarrying.
3 Bl.Comm. 335.
By the civil and Scotch law, as well as by the statute law
prevailing in over half of the states of the Union, the child
would then be legitimated.
BASTARDA. A female bastard. Calvinus, Lex.;
Fleta, lib. 5, c. 5, § 40.
BASTARDIZE. To declare one a bastard, as a
court does. To give evidence to prove one a bas-
tard. A mother (married) cannot bastardize her
child.
BASTARDUS NON POTEST HABERE ILERE-
DEM NISI DE CORPORE SUO LEGITIME PRO-
CREATUM. A bastard can have no heir unless
it be one lawfully begotten of his own body. Tray.
Lat.Max. 51.
BASTARDUS NULLIUS EST FILIUS, AUT FILI-
US POPULI. A bastard is nobody's son, or the
son of the people.
BASTARDY. The offense of begetting a bastard
child. The condition of a bastard. Dinkey v.
Com., 17 Pa. 129, 55 Am.Dec. 542.
BASTARDY PROCESS. The method provided by
statute of proceeding against the putative father
to secure a proper maintenance for the bastard.
It is of a special character in nature of civil action. In
re Mitchell, 189 Okl. 51, 113 P.2d 979, 980.
BASTON. In old English law, a baton, club, or
staff. A term applied to officers of the wardens
of the prison called the "Fleet," because of the
staff carried by them. Cowell; Spelman; Termes
de la Ley. See Justices of Trail-Baston.
Black's Law Dictionary Revised 4th Ed.-13
BATABLE-GROUND. Land that is in controver-
sy, or about the possession of which there is a
dispute, as the lands which were situated between
England and Scotland before the Union. Skene.
BATAILLE. In old English law. Battel; the
trial by combat or duellum.
BATH, KNIGHTS OF THE. See Knights of the
Bath.
BATIMENT. In French marine law. A vessel or
ship.
BATONNIER. The chief of the French bar in its
various centres, who presides in the council of dis-
cipline. Arg.Fr.Merc.Law, 546.
BATTEL. Trial by combat; wager of battel. See
Wager of Battel.
BATTERY. Any unlawful beating, or other
wrongful physical violence or constraint, inflicted
on a human being without his consent. Goodrum
v. State, 60 Ga. 511.
A willful and unlawful use of force or violence upon the
person of another. Long v. Rogers, 17 Ala. 540. An un-
lawiuLtauching of the person of another by the agre.agr
apasalf, or any otliEf -SUbstance—put in motion by him. Kir-
land v. State, 43 Ind. 153, 13 Am.Rep. 386; Commonwealth
v. Remley, 257 Ky. 209, 77 S.W.2d 784. The consummation
of an unlawful assault. State v. Hamburg, Del., 143 - A. 47,
a8. The sri •	of another or of his clothes
or an' thi I • - che•to hi -rson • one in a de,
nsolent. or anzr y  manner. Booher v. Trainer, 172 o.App.
376, 157 S.W. 848, 850; Commonwealth v. Gregory, 132 Pa.
Super. 507, 1 A.2d 501, 503.
The artnal off pr to use force to th9 iniuri_aannther
person is assault; the use of it is battery,yantich always
includes an assa  ; Thence the two terms are commonly
76-g Bined n t e term "assault and battery." Harris v.
State, 15 Okl.Cr. 369, 177 P. 122, 123.
A surgical operation is a technical "battery" regardless
of its result, and is excusable only when there is express
or implied consent by the patient. Bonner v. Moran, 126
F.2d 121, 122, 75 U.S.App.D.C. 156, 139 A.L.R. 1366.
—Assault and Battery of a High and Aggravated
Nature. An unlawful act of violent injury to the
person of another, accompanied by circumstances
of aggravation, such as the use of deadly weapon,
great disparity between the ages and physical
conditions of the parties, or the purposeful inflic-
tion of shame and disgrace. State v. Jones, 133
S.C. 167, 130 S.E. 747, 751.
—Simple Battery. One not accompanied by cir-
cumstances of aggravation, or not resulting in
grievous bodily injury.
BATTONIER. In French and Canadian law. A
member of the bar selected as the head of the
bar.
BATTURE. According to Richelet and the French
Academy, a marine term, used to denote a bottom
of sand, stone, or rock, mixed together, and rising
towards the surface of the water; as a technical
word and also in common parlance, an elevation
of the bed of a river, under the surface of the wa-
ter. The term is, however, sometimes used to de-
note the same elevation of the bank, when it has
risen above the surface of the water, or is as high
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as the land on the outside of the bank. Conkey v.
Knudsen, 143 Neb. 5, 8 N.W.2d 538, 541.
In this latter sense it is synonymous with "alluvion."
It means, in common-law language, land formed by accre-
tion. Producers' Oil Co. v. Hanszen, 132 La. 691, 61 So.
754.
The term is used in Louisiana, and is applied principally
to certain portions of the bed of the Mississippi river which
are uncovered at time of low water but are covered annual-
ly at time of ordinary high water. Boyce Cottonseed Oil
Mfg. Co. v. Board of Com'rs of Red River, Atchafalaya &
Bayou Bceuf Levee Dist., 160 La. 727, 107 So. 506, 508.
BAUXITE. An earth containing aluminum in suf-
ficient quantities to make it worth working for
the extraction of alumina. American Bauxite Co.
v. Board of Equalization of Saline County, 119
Ark. 362, 177 S.W. 1151, 1152. United States v.
Aluminum Co. of America, D.C.N.Y., 44 F.Supp.
97, 109.
BAWD. One who procures opportunities for per-
sons of opposite sexes to cohabit in an illicit man-
ner; who may be, while exercising the trade of
a bawd, perfectly innocent of committing in his
or her own proper person the crime either of
adultery or of 'fornication. See Dyer v. Morris, 4
Mo. 216.
BAWDY-HOUSE. A house of ill fame; a house of
prostitution; a brothel. A house or dwelling
maintained for the convenience and resort of per-
sons desiring unlawful sexual connection. Davis
v. State, 2 Tex.App. 427; State v. Porter, 38 Ark.
638; People v. Buchanan, 1 Idaho 689. An as-
signation house. State v. Bragg, Mo.App., 220
S.W. 25, 26. A disorderly house. Putman v.
State, 9 Okl.Cr. 535, 132 P. 916, 921, 46 L.R.A.,N.S.,
593.
To constitute a bawdy-house, the house must be "resort-
ed to" or "frequented," that is to say, used a number of
times, by lewd people of both sexes. State v. Seba, Mo.
App., 200 S.W. 300; but need not be inhabited or resorted
to by more than one woman for purpose of prostitution.
Trent v. Commonwealth, 181 Va. 338, 25 S.E.2d 350, 351.
BAY. A pond-head made of a great height to keep
in water for the supply of a mill, etc., so that the
wheel of the mill may be turned by the water
rushing thence, through a passage or flood-gate.
St. 27 Eliz. c. 19. (This is generally called a fore-
bay.)
A bending or curving of the shore of the sea
or of a lake, so as to form a more or less inclosed
body of water. State v. Town of Gilmanton, 14
N.H. 477. An opening into the land, or an arm
of the sea, where the water is shut in on all sides
except at the entrance. Mayo v. New York Cent.
R. Co., 263 N.Y. 277, 189 N.E. 217, 218.
BAYGALL. A low-lying wet land matter with
vegetable fibres and often with gallberry and oth-
er thick-growing bushes. McNeal v. Carter, 191
Ga. 441, 12 S.E.2d 332, 333.
BAY WINDOW. A window projecting from the
wall of a building so as to form a recess or bay
within, and, properly speaking, rising from the
ground or basement, with straight sides only;
but the term is also ordinarily applied to such
projecting windows with curved sides, properly
called bow windows, and also to projecting win-
dows supported from the building, above the
ground, properly called oriel windows. Hiero-
nimus v. Moran, 272 Ill. 254, 111 N.E. 1022, 1023.
BAYLEY. In old English law. Bailiff. This term
is used in the laws of the colony of New Plym-
outh, Mass., A.D. 1670, 1671. Burrill.
BAYOU. A species of creek or stream common in
Louisiana and Texas. An outlet from a swamp,
pond, or lagoon, to a river, or the sea. See Surgett
v. Lapice, 8 How. 48, 70, 12 L.Ed. 982.
BEACH. This term, in its ordinary signification,
when applied to a place on tide waters means the
space between ordinary high and low water mark;
East Hampton v. Kirk, 6 Hun (N.Y.) 257; or the
space over which the tide usually ebbs and flows.
It is a term not more significant of a sea margin
than "shore." Niles v. Patch, 13 Gray (Mass.)
257; Hodge v. Boothby, 48 Me. 68.
In common parlance designates that portion of shore
consisting generally of sand and pebbles, resulting usually
from the action of water, as distinct from the upland, to
which it often extends above normal high-water mark.
Borden v. Town of Westport, 112 Conn. 152, 151 A. 512,
515.
Beach is synonymous with "shore," "strand," or "flats."
Littlefield v. Littlefield, 28 Me. 180.
The term may also include the sandy shore above mean
high water which is washed by storms and exceptionally
hig h tides. Newkirk v. Sherwood, 94 A. 982, 984, 89 Conn.
598.
To "beach" a ship is to run it upon the beach
or shore; this is frequently found necessary in
case of a fire, leak, etc.
See Foreshore; Sea-Shore.
Public Beach
One left by the state or others claiming it open
to the common use of the public, which the un-
organized public and each of its members have a
right to use while it remains such. Brower v.
Wakeman, 88 Conn. 8, 89 A. 913, 914.
BEACON. A light-house, or sea-mark, formerly
used to alarm the country, in case of the approach
of an enemy, but now used for the guidance of
ships at sea, by night, as well as by day.
BEACONAGE. Money paid for the maintenance
of a beacon or signal-light. Comyns, Dig. Navi-
gation (H).
BEADLE. In English ecclesiastical law. An in-
ferior parish officer, who is chosen by the vestry,
and whose business is to attend the vestry, to give
notice of its meetings, to execute its orders, to
attend upon inquests, and to assist the constables.
Wharton. See, also, Bedel.
BEAMS AND BALANCE. Instruments for weigh-
ing goods and merchandise.
BEAR. To support, sustain, or carry; to give
rise to, or to produce, something else as an inci-
dent or auxiliary. See Stevenson v. Mellor, 252
Pa. 219, 97 A. 393, 394; to render, to manage, or
direct, or to conduct; to carry on, or maintain ;
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to be answerable for, and to defray. Teeter v.
Mid-West Enterprise Co., 174 Okl. 644, 52 P.2d 810,
812.
BEAR ARMS. To carry arms as weapons and
with reference to their military use, not to wear
them about the person as part of the dress. Ay-
mette v. State, 2 Humph. (Tenn.) 158.
As applied to fire-arms, includes the right to load and
shoot them, and to use them as such things are generally
used. Hill v. State, 53 Ga. 480.
BEAR INTEREST. To generate interest, so that
the instrument or loan spoken of shall produce or
yield interest at the rate specified by the parties or
granted by law. Slaughter v. Slaughter, 21 Ind.
App. 641, 52 N.E. 995.
BEARER. One who bears, carries, or holds a
thing. Defined by the Negotiable Instruments
Act as the person in possession of a bill or note
which is payable to bearer. Miller v. People's Say.
Bank, 193 Mo.App. 498, 186 S.W. 547, 550.
When a check, note, draft, etc., is payable to "bearer,"
it imports that the contents thereof shall be payable to
any person who may present the instrument for payment.
Thompson v. Perrine, 106 U.S. 589, 1 S.Ct. 564, 568, 27 L.
Ed. 298.
BEARERS. In old English law. Such as bear
down or oppress others; maintainers. Cowell.
BEARING DATE. Disclosing a date on its face;
having a certain date. Words frequently used in
pleading and conveyancing to introduce the date
which has been put upon an instrument. See 2
Greenl.Ev. § 160; 2 Dowl. & L. 759.
BEAST. An animal; a domestic animal; a quad-
ruped, such as may be used for food or in labor
or for sport;  e. g., a cow; Taylor v. State, 6
Humph. (Tenn.) 285; a horse; Winfrey v. Zim-
merman, 8 Bush (Ky.) 587; and a hog; State v.
Enslow, 10 Iowa, 115; but a dog was held not to
be; U. S. v. Gideon, 1 Minn. 292 (Gil. 226) ; but see
Morewood v. Wakefield, 133 Mass. 241.
BEASTS OF THE CHASE. In English law.
Properly, the buck, doe, fox, martin, and roe, but
in a common and legal sense extending likewise
to all the beasts of the forest, which beside the
others are reckoned to be the hind, hare, bear,
and wolf, and, in a word, all wild beasts of y en-
ery or hunting. Co.Litt. 233; 2 Bla.Comm. 39.
BEASTS OF THE FOREST. In English law. The
hart, hind, hare, boar, and wolf. Co.Litt. 233a.
See Beasts of the Chase.
BEASTS OF THE PLOW. An old term for ani-
mals employed in the operations of husbandry,
including horses. Somers v. Emerson, 58 N.H.
49.
BEASTS OF THE WARREN. In English law.
Hares, coneys, and roes. Co.Litt. 233; 2 Bla.
Comm. 39.
BEASTGATE. In Suffolk, England, imports land
and common for one beast. Bennington v. Good-
title, 2 Strange, 1084; Rosc.Real Act. 485.
BEAT, v. To strike 'or hit repeatedly, as with
blows. Regina v. Hale, 2 Car. & K. 327; Com.
v. McClellan, 101 Mass. 35; Corn. v. McClellan,
101 Mass. 35.
In the criminal law and the law of torts, with
reference to assault and battery, the term in-
cludes any unlawful physical violence offered to
another. See Battery.
To beat, in a legal sense, is not merely to whip, wound,
or hurt, but includes any unlawful imposition of the hand
or arm. Goodrum v. State, 60 Ga. 511; Yarbrough v. State,
17 Ga.App. 828, 88 S.E. 710, 711.
BEAT, n. In some of the southern states (as Ala-
bama, Mississippi, South Carolina) the principal
legal subdivision of a county, corresponding to
towns or townships in other states; or a voting
precinct. Eaton v. State, 20 Ala.App. 110, 101 So.
94, 95.
BEATING OF THE BOUNDS. An ancient cus-
tom in England by which, once a year, the min-
ister, etc., of a parish walked about its boundaries
to preserve a recollection of them. Cent.Dict.
(Perambulation).
BEAUPLEADER. (L. Fr. fair pleading). A writ
of prohibition directed to the sheriff or another,
directing him not to take a fine for beaupleader.
There was anciently a fine imposed called a fine for
beaupleader, which is explained by Coke to have been orig-
inally imposed for bad pleading. Coke, 2d Inst. 123. The
statute of Marlebridge (52 Hen. III.) c. 11, enacts, that
neither in the circuit of justices, nor in counties, hun-
dreds, or courts-baron, any fines shall be taken for fair
pleading; namely, for not pleading fairly or aptly to the
purpose. Upon this statute this writ was ordained, direct-
ed to the sheriff, bailiff, or him who shall demand the fine;
and it is a prohibition or command not to do it. Cowell;
Co. 2d Inst. 122; Crabb, Eng.Law 150.
BEAUTY CULTURE. Generally, the means em-
ployed to improve personal appearance, is an
occupation operating directly on the person. Hoff
v. State, Del.Super., 197 A. 75, 78, 81.
BECAUSE OF. For. Kelly v. State Personnel
Board of California, 31 Cal.App.2d 443, 88 P.2d
264, 266.
BECAUSE OF EMPLOYMENT. In this phrase
as used in the Workmen's Compensation Act, ex-
cepting an employer from liability for the willful
act of a third person directed against an employee
because of his employment, the words "because
of" are not synonymous with "caused by" but with
"on account of," or "by reason of." Saucier's
Case, 122 Me. 325, 119 A. 860, 861.
BECOME. To pass from one state to another;
to enter into some state or condition.
Hence one who is a member of a particular organization
at the time of the enactment of a statute making it a fel-
ony to "become" a member of such an organization cannot
be said to be within the purview of the act. State v.
Laundy, 103 Or. 443, 204 P. 958, 963.
BED. The hollow or channel of a water course;
the depression between the banks worn by the
regular and usual flow of the water.
Soil only which the water occupies sufficiently
long and continuously to wrest it from vegetation
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BED
and destroy its value for agricultural purposes.
State ex rel. O'Connor v. Sorenson, 271 N.W. 234,
236, 222 Iowa 1248.
The land that is covered by the water in its ordinary low
stage. Wemple v. Eastham, 150 La. 247, 90 So. 637, 638.
That portion of its soil which is alternately covered and
left bare as there may be an increase or diminution in the
supply of water, and which is adequate to contain it at
its average and mean state during an entire year. Mau-
frais v. State, 142 Tex. 559, 180 S.W.2d 144, 147.
Area extending between the opposing banks measured
from the foot of the banks from the top of the water at its
ordinary stage, including sand bars which may exist
between the foot of said banks as thus defined. Town of
Refugio v. Heard, Tex.Civ.App., 95 S.W.2d 1008, 1010.
It includes the lands below ordinary high water mark.
United States v. Chicago, M., St. P. & P. R. Co., 61 S.Ct.
772, 775, 312 U.S. 592, 313 U.S. 543; 85 L. Ed. 1064.
Bed of navigable lake extends to high water mark. Mi-
ami Corporation v. State, 186 La. 784, 173 So. 315.
Also, the right of cohabitation or marital inter-
course; as in the phrase "divorce from bed and
board," or a mensa et thoro.
BED OF JUSTICE. In old French law. The seat
or throne upon which the king sat when personal-
ly present in parliament; hence it signified the
parliament itself.
BED-ALE or BID-ALE. A friendly assignation
for neighbors to meet and drink at the house of
newly married persons or other poor, people and
then for the guests to contribute to the house-
keepers. Cowell. See Bidal.
BEDDING. Covers practically everything, that is
to say, mattresses, springs, cots, couches, quilts,
cushions, and also the bed itself. Baltimore Bed-
ding Corporation v. Moses, 182 Md. 229, 34 A.2d
338, 340.
BEDEHOUSE. A hospital or almshouse for bedes-
men or poor people who prayed for their founders
and benefactors. Cunningham.
BEDEL, In English law. A crier or messenger
of court, who summons men to appear and answer
thvrein. Cowell. A herald to make public proc-
lamations. Cent. Dict.
An officer of the forest, similar to a sheriff's
special bailiff. Cowell.
A collector of rents for the king. Plowd. 199,
200.
An inferior officer in a parish or liberty, or in an
institution, such as the Blue Coat School in Lon-
don.
A subordinate officer of a university who walked
with a mace before one of the officers on cere-
monial occasions and performed other minor du-
ties ordinarily. See Beadle.
BEDELARY. The jurisdiction of a bedel, as a
bailiwick is the jurisdiction of a bailiff. Co.Litt.
234b; Cowell.
BEDEREPE. A service which certain tenants
were anciently bound to perform, as to reap their
landlord's corn at harvest. Said by Whishaw to
be still in existence in some parts of England.
Blount; Cowell; Whishaw,
BEDEWERI. Those which we now call banditti;
profligate and excommunicated persons. Cunning-
ham.
BEDLAM. A corruption of Bethlehem. The hos-
pital of St. Mary of Bethlehem in London, orig-
inally a priory, founded about 1247, but used from
about 1400 as an asylum for the insane.
BEEF. Used frequently to mean an animal of the
cow species and not beef prepared for market.
A beef or one beef is an expression frequently
used to designate an animal fit for use as beef, in-
stead of designating it as a steer, a heifer, an ox,
or a cow. Davis v. State, 40 Tex. 135.
BEER. A liquor compounded of malt and hops,
differing from ales, not so much in its ingredients
as in its processes of fermentation.
A brewed liquor made of grain, especially barley, fla-
vored with hops, which has undergone fermentation and
contains alcohol. State v. Lynch, 5 Boyce (Del.) 569, 96 A.
32. An alcoholic beverage resulting from the fermentation
of cereals or other starchy substances. U. S. v. Standard
Brewery, D.C.Md., 260 F. 486, 487.
In its ordinary sense, it denotes a beverage which is in-
toxicating; Moffitt v. People, 59 Colo. 406, 149 P. 104, 107;
Hoskins v. Commonwealth, 171 Ky. 204, 188 S.W. 348, 349;
and is within the fair meaning of the words "strong or
spirituous liquors," used in the statutes on this subject.
Maier v. State, 2 Tex.Civ.App. 296, 21 S.W. 974.
But also held that "liquor," in common parlance, does
not ordinarily mean "beer." Lea v. State, 181 S.W.2d
351, 353, 181 Tenn. 378.
Any liquor, whether intoxicating or not, made by the
usual process of making beer, although fermentation is
arrested to reduce the percentage of alcohol. Brown v.
State, 17 Ariz. 314, 152 P. 578, 582.
BEER-HOUSE; BEER-SHOP. In English law. A
place where beer is sold to be consumed on the
premises; as distinguished from a "beer-shop,"
which is a place where beer is sold to be consumed
off the premises. 16 Ch.Div. 721.
BEFORE. Prior to; preceding. In the presence
of; under the official purview of; as in a magis-
trate's jurat, "before me personally appeared,"
etc. State v. Murnane, 172 Minn. 401, 215 N.W.
863.
Thus, an acknowledgment made to an officer over a
telephone wire by one who is not present with the officer,
is not an acknowledgment "before" the officer. Hutchin-
son v. State, 79 Fla. 157, 84 So. 151, 154.
In the absence of any statutory provision governing the
computation of time, the authorities are uniform that,
where an act is required to be done a certain number of
days or weeks before a certain other day upon which an-
other act is to be done, the day upon which the first act
is done is to be excluded from the computation, and the
whole number of days or weeks must intervene before the
day fixed for doing the second act. Ward v. Walters, 63
Wis. 44, 22 N.W. 844.
When used as a preposition, does not indicate a period
of time as do the prepositions "for," "during," and
"throughout," but merely an event or act preceding in
time, or earlier than, or previously to, the time mentioned.
First Nat. Corporation v. Perrine, 43 P.2d 1073, 1077, 99
Mont. 454.
BEG. To solicit alms or charitable aid. The act
of a cripple in passing along the sidewalk and
silently holding out his hand and receiving money
from passers-by is "begging for alms," within the
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BELLIGERENTS
meaning of a statute which uses that phrase.
In re Haller, 3 Abb.N.C.,N.Y., 65.
BEGA. A land measure used in the East Indies.
In Bengal it is equal to about a third part of an
acre.
BEGET. See Begotten.
BEGGAR. One who lives by begging charity, or
who has no other means of support than solicited
alms.
BEGIN. To originate; to come into existence; to
start; to institute; to initiate; to commence.
People ex rel. Northchester Corporation v. Miller,
31 N.Y.S.2d 586, 587, 263 App.Div. 83.
BEGOTTEN. "To be begotten" means the same
as "begotten," embracing all those whom the par;
ent shall have begotten during his life, quos pro-
creaverit. Cox v. Newby, 85 S.E. 369, 370, 101
S.C. 193. The term is peculiarly and chiefly ap-
plicable to a father. Swain v. Bowers, 91 Ind.
App. 307, 158 N.E. 598, 601.
BEGUM. In India. A lady, princess, woman of
high rank.
BEGUN. In a statute providing that nothing con-
tained in it should affect prosecutions "begun"
under any existing act, the word "begun" means
both those which have already been begun and
those which may hereafter be begun. Lang v.
U. S., C.C.A.Ill., 133 F. 201, 66 C.C.A. 255.
BEHALF. Benefit, support, defence, or advan-
tage.
A witness testifies on "behalf" of the party who calls
him, notwithstanding his evidence proves to be adverse to
that party's case. Richerson v. Sternburg, 65 Ill. 274. See,
further, 12 Q.B. 693; 18 Q.B. 512.
BEHAVIOR. Manner of having, holding, or keep-
ing one's self; manner of behaving, whether good
or bad; conduct; manners; carriage of one's
self, with respect to propriety and morals; deport-
ment. Webster. State v. Roll, 1 Ohio Dec. 284;
Schneiderman v. United States, Cal., 63 S.Ct. 1333,
1340, 320 U.S. 118, 87 L.Ed. 1796.
Surety to be of good behavior is a larger requirement
than surety to keep the peace. Dalton, c. 122; 4 Burns,
Just. 355. See Good Behavior.
BEHETRIA. In Spanish law. Lands situated in
districts and manors in which the inhabitants had
the right to select their own lords.
BEHOOF. Use; benefit; profit; service; advan-
tage. It occurs in conveyances, e. g., "to his and
their use and behoof." Stiles v. Japhet, 84 Tex.
91, 19 S.W. 450.
BEING STRUCK. Collision, or striking together
of two objects, one of which may be stationary.
Davilla v. Liberty Life Ins. Co., 114 Cal.App. 308,
299 P. 831, 834.
BELIEF. A conviction of the truth of a proposi-
tion, existing subjectively in the mind, and induced
by argument, persuasion, or proof addressed to the
judgment. Keller v. State, 102 Ga. 506, 31 S.E. 92.
Latrobe v. J. H. Cross Co., D.C.Pa., 29 F.2d 210,
212. A conclusion arrived at from external sources
after weighing probability. Ex parte State ex
rel. Attorney General, 100 So. 312, 313, 211 Ala. 1.
Conviction of the mind, arising not from actual percep-
tion or knowledge, but by way of inference, or from evi-
dence received or information derived from others.
A conviction of the truth of a given proposition or an al-
leged fact resting upon grounds insufficient to constitute
positive knowledge.  Boone v. Merchants' & Farmers'
Bank, D.C.N.C., 285 F. 183, 191.
With regard to things which make not a very deep im-
pression on the memory, it may be called "belief."
"Knowledge" is nothing more than a man's firm belief.
The difference is ordinarily merely in the degree; to be
judged of by the court, when addressed to the court; by
the jury, when addressed to the jury. Hatch v. Carpenter,
9 Gray (Mass.) 274.
Knowledge is an assurance of a fact or proposi-
tion founded on perception by the senses, or in-
tuition; while "belief" is an assurance gained by
evidence, and from other persons. Brooks v. Ses-
soms, 47 Ga.App. 554, 171 S.E. 222, 224.
"Suspicion" is weaker than "belief," since suspicion
requires no real foundation for its existence. while "be-
lief" is necessarily based on at least assumed facts. Pen.
Code, § 836, subd. 3. Cook v. Singer Sewing Mach. Co.,
32 P.2d 430, 431, 138 Cal.App. 418.
BELLIGERENCY. In international law. The
status of de facto statehood attributed to a body
of insurgents, by which their hostilities are legal-
ized.
Before they can be recognized as belligerents they must
have some sort of political organization and be carrying on
what in international law is regarded as legal war. There
must be an armed struggle between two political bodies,
each of which exercises de facto authority over persons
within a determined territory, and commands an army
which is prepared to observe the ordinary laws of war.
Moore, Int. Law Dig. I, 196; Dana's Wheaton, note 15,
page 35; In re Jones, 71 W.Va. 567, 77 S.E. 1029, 45 L.R.
A.,N.S., 1030, Ann.Cas.1914C, 31.
Quality of being belligerent; status of a belligerent;
act or state of waging war ; warfare. Webster's New Int.
Diet.
BELLIGERENT. In international law. As an ad-
jective, it means engaged in lawful war. As a
noun, it designates either of two nations which are
actually in a state of war with each other, as
well as their allies actively co-operating, as dis-
tinguished from a nation which takes no part in
the war and maintains a strict indifference as be-
tween the contending parties, called a "neutral."
U. S. v. The Ambrose Light, D.C.N.Y., 25 F. 412;
Johnson v. Jones, 44 Ill. 151, 92 Am.Dec. 159.
BELLIGERENTS. A body of insurgents who by
reason of their temporary organized government
are regarded as conducting lawful hostilities.
Also, militia, corps of volunteers, and others, who
although not part of the regular army of the
state, are regarded as lawful combatants provided
they observe the laws of war. See Ex parte Tos-
cano, D.C.Cal., 208 F. 938. See, also, Belligerency.
Bello parta cedunt reipublic. Things acquired in
war belong or go to the state. 1 Kent, Comm. 101;
5 C.Rob.Adm. 173, 181; The Joseph, 1 Gall. 558,
Fed.Cas.No.7,533. The right to all captures vests
primarily in the sovereign. A fundamental max-
im of public law. Cited 2 Russ. & M. 56.
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BELLUM
BELLUM. Lat. In public law. War. An armed
contest between nations; the state of those who
forcibly contend with each other. Jus belli, the
law of war.
BELONG. To appertain to; to be the property of.
Property "belonging" to a person has two general
meanings: (1) ownership; People ex rel. Gill v.
Lake Forest University, 367 Ill. 103, 10 N.E.2d 667,
671; and (2) less than ownership, i. e., less than
an unqualified and absolute title, such as the ab-
solute right of user. City and County of San
Francisco v. McGovern, 28 Cal.App. 491, 152 P.
980, 984.
A road may be said with perfect propriety to belong to a
man who has the right to use it as of right although the
soil does not belong to him; 31 L.J.Ex. 227.
When used in public and private statutes, and especially
when used in reference to inhabitancy, the poor, etc., des-
ignates the place of a person's legal settlement, and not
merely his place of residence. City of Bridgeport v. Town
of Greenwich, 165 A. 797, 116 Conn. 537.
BELONGING. That which is connected with a
principal or greater thing; an appendage, an ap-
purtenance; also ownership. Church of the Holy
Faith v. State Tax Commission, 39 N.M. 403, 48
P.2d 777, 779.
BELONGINGS. That which belongs to one;
property; possessions ;—a term properly used to
express ownership. In a will. Ford's Adm'r v.
Wade's Adm'r, 242 Ky. 18, 45 S.W.2d 818, 820.
BELOW. In practice. Inferior; of inferior juris-
diction, or jurisdiction in the first instance. The
court from which a cause is removed for review
is called the "court below."
Preliminary; auxiliary or instrumental.
Bail to the sheriff is called "bail below," as being prelim-
inary to and intended to secure the putting in of bail
above, or special bail. See Bail.
BENCH. A seat of judgment or tribunal for the
administration of justice; the seat occupied by
judges in courts; also the court itself, or the ag-
gregate of the judges composing a court, as in the
phrase "before the full bench."
The judges taken collectively, as distinguished
from counsellors and advocates, who are called
the bar.
The term, indicating originally the seat of the judges,
came to denote the body of judges taken collectively, and
also the tribunal itself, as the King's Bench.
In English ecclesiastical law. The aggregate
body of bishops.
BENCH LEGISLATION. See Judge-made law
under the title Judge.
BENCH WARRANT. Process issued by the
court itself, or "from the bench," for the attach-
ment or arrest of a person; either in case of con-
tempt, or where an indictment has been found, or
to bring in a witness who does not obey the sub-
pcena. So called to distinguish it from a warrant,
issued by a justice of the peace, alderman, or com-
missioner. Oxford v. Berry, 204 Mich. 197, 170
N.W. 83, 87,
BENCHERS. In English law. Seniors in the
Inns of Court, intrusted with their government,
and usually, but not necessarily, king's counsel,
elected by co-optation, and having the entire man-
agement of the property of their respective inns.
BENE. Lat. Well; in proper form; legally;
sufficiently.
BENEDICTA EST EXPOSITIO QUANDO RES
REDIMITUR A DESTRUCTIONE. 4 Coke, 26.
Blessed is the exposition when anything is saved
from destruction. It is a laudable interpretation
which gives effect to the instrument, and does not
allow its purpose to be frustrated.
BENEFICE. In ecclesiastical law. In its techni-
cal sense, this term includes ecclesiastical prefer-
ments to which rank or public office is attached,
otherwise described as ecclesiastical dignities or
offices, such as bishoprics, deaneries, and the like;
but in popular acceptation, it is almost invariably
appropriated to rectories, vicarages, perpetual
curacies, district churches, and endowed chap-
elries. 3 Steph.Comm. 77.
"Benefice" is a term derived from the feudal law, in
which it signified a permanent stipendiary estate, or an
estate held by feudal tenure. 4 Bl.Comm. 107.
BENEFICE. Fr. In French law. A benefit or
advantage, and particularly a privilege given by,
the law rather than by the agreement of the par-
ties.
BENEFICE DE DISCUSSION. Benefit of discus-
sion. The right of a guarantor to require that
the creditor should exhaust his recourse against
the principal debtor before having recourse to the
guarantor himself.
BENEFICE DE DIVISION. Benefit of division;
right of contribution as between co-sureties.
BENEFICE D'INVENTAIRE. A term which cor-
responds to the beneficium inventarii of Roman
law, and substantially to the English law doctrine
that the executor properly accounting is only lia-
ble to the extent of the assets received by him.
BENEFICIAIRE. The person in whose favor a
promissory note or bill of exchange is payable; or
any person in whose favor a contract of any de-
scription is executed. Arg.Fr.Merc.Law. 547.
BENEFICIAL. Tending to the benefit of a per-
son; yielding a profit, advantage, or benefit; en-
joying or entitled to a benefit or profit. This term
is applied both to estates (as a "beneficial inter-
est") and to persons (as "the beneficial owner").
Kolb v. Landes, 277 M. 440, 115 N.E. 539, 541; In
re Williams' Will, 50 Mont. 142, 145 P. 957, 959.
BENEFICIAL OR BENEVOLENT ASSOCIA-
TION. A voluntary association for mutual assist-
ance in time of need and sickness, and for the
care of families of deceased members. Lafferty
v. Supreme Council Catholic Mut. Ben. Ass'n,
259 Pa. 452, 103 A. 280, 281; but also held to in-
clude incorporated organizations. State v. Texas
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BENEFICIUM
Mut. Life Ins. Co. of Texas, Tex.Civ.App., 51 S.W.
2d 405, 410.
Another name for a "benefit society;" "benevo-
lent society," and "fraternal" or "friendly socie-
ty." State v. Texas Mut. Life Ins. Co. of Texas,
Tex.Civ.App., 51 S.W.2d 405, 410.
BENEFICIAL ENJOYMENT. The enjoyment
which a man has of an estate in his own right and
for his own benefit, and not as trustee for another.
11 H.L.Cas. 271.
BENEFICIAL ESTATE. An estate in expectancy
is one where the right to the possession is post-
poned to a future period, and is "beneficial" where
the devisee takes solely for his own use or benefit,
and not as the mere holder of the title for the use
of another. In re Seaman's Estate, 147 N.Y. 69,
41 N.E. 401.
BENEFICIAL INTEREST. Profit, benefit, or ad-
vantage resulting from a contract, or the owner-
ship of an estate as distinct from the legal own-
ership or control. People v. Schaefer, 266 Ill.
334, 107 N.E. 617, 619; Christiansen v. Depart-
ment of Social Security, 15 Wash.2d 465, 131 P.2d
189, 191, 192.
When considered as designation of character of an estate,
is such an interest as a devisee, legatee, or donee takes
solely for his own use or benefit, and not as holder of ti-
tle for use and benefit of another. People v. Northern
Trust Co., 330 Ill. 238, 161 N.E. 525, 528.
BENEFICIAL POWER. In New York law and
practice. A power which has for its object the
donee of the power, and which is to be executed
solely for his benefit; as distinguished from a
trust power, which has for its object a person oth-
er than the donee, and is to be executed solely for
the benefit of such person. Jennings v. Conboy,
73 N.Y. 234; In re New York Life Ins. & Trust Co.,
Sur., 139 N.Y.S. 695, 705; People, by Van Schaick
v. New York Title & Mortgage Co., 270 N.Y.S. 473,
150 Misc. 488.
BENEFICIAL USE. The right to use and enjoy
property according to one's own liking or so as
to derive a profit or benefit from it, including all
that makes it desirable or habitable, as light, air,
and access; as distinguished from a mere right of
occupancy or possession. Reining v. Railroad Co.,
Super.Ct., 13 N.Y.Supp. 240.
Such right to enjoyment of property where legal title
is in one person while right to such use or interest is in
another. Christiansen v. Department of Social Security,
15 Wash.2d 465, 131 P.2d 189, 191.
BENEFICIARY. One for whose benefit a trust is
created; a cestui que trust. 195 N.E. 557, 564, 97
A.L.R. 1170. A person having the enjoyment of
property of which a trustee, executor, etc., has the
legal possession. The person to whom a policy of
insurance is payable. Parrott Estate Co. v. Mc-
Laughlin. D.C.Cal., 12 F.Supp. 23, 25; Odom v.
Prudential Ins. Co. of America, 173 Or. 435, 145
P.2d 480, 482. One receiving benefit or advantage,
or one who is in receipt of benefits, profits, or ad-
vantage. Bauer v. Myers, C.C.A.Kan., 244 F. 902,
908. For "Favored Beneficiary," see that title.
BENEFICIARY ASSOCIATION. See Beneficial
or Benevolent Association.
BENEFICIARY HEIR. In the law of Louisiana.
One who has accepted the succession under the
benefit of an inventory regularly made. Civ.Code
La. art. 883. Also, one who may accept the suc-
cession with benefit of inventory. Succession of
Galiano, La.App., 195 So. 377, 379.
BENEFICIO PRIMA, or PRIMO [ECCLESIASTI-
CO HABENDO]. In English law. An ancient
writ, which was addressed by the king to the lord
chancellor, to bestow the benefice that should first
fall in the royal gift, above or under a specified
value, upon a person named therein. Reg.Orig.
307.
BENEFICIUM.
In Early Feudal Law
A benefice; a permanent stipendiary estate;
the same with what was afterwards called a
"fief," "feud," or "fee." 3 Steph.Comm. 77, note i;
Spelman. It originally meant a "benefaction"
from the king, usually to a noble.
In the Civil Law
A benefit or favor; any particular privilege.
Dig. 1, 4, 3; Cod. 7, 71; Mackeld.Rom.Law, § 196.
A general term applied to ecclesiastical livings.
4 Bl.Comm. 107; Cowell.
In General
—Beneficium abstinendi. In Roman law. The
power of an heir to abstain from accepting the
inheritance. Sandars, Just.Inst. (5th Ed.) 214.
—Beneficium cedendarum actionum. In Roman
law. The privilege by which a surety could, be-
fore paying the creditor, compel him to make over
to him the actions which belonged to the stipula-
tor, so as to avail himself of them. Sandars, Just.
Inst. (5th Ed.) 332, 351.
—Beneficium clericale. Benefit of clergy (q. v.).
—Beneficium competentiw. In Scotch law. The
privilege of competency. A privilege which the
grantor of a gratuitous obligation was entitled to,
by which he might retain sufficient for his sub-
sistence, if, before fulfilling the obligation, he was
reduced to indigence. Bell. In the civil law. The
right which an insolvent debtor had, among the
Romans, on making cession of his property for
the benefit of his creditors, to retain what was re-
quired for him to live honestly according to his
condition. 7 Toullier, n. 258.
A defendant's privilege of being condemned
only in an amount which he could pay without
being reduced to a state of destitution. Sand.
Justinian iv. vi. 37.
—Beneficium divisionis. In civil and Scotch law.
The privilege of one of several co-sureties (cau-
tioners) to insist upon paying only his pro rata
share of the debt. Bell; La.Civ.Code, arts. 3045-
3051.
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BENEFICIUM
—Beneficium inventarii. See Benefit of Inventory.
—Beneficium ordinis. In civil and Scotch law.
The privilege of order. The privilege of a surety
to require that the creditor should first proceed
against the principal and exhaust his remedy
against him, before resorting to the surety. Bell.
—Beneficium separationis. In the civil law. The
right to have the goods of an heir separated from
those of the testator in favor of creditors.
BENEFICIUM INVITO NON DATUR. A privi-
lege or benefit is not granted against one's will.
Adams Gloss.
BENEFICIUM NON DATUM NISI PROPTER
FICIUM. Hob. 148. A remuneration [is] not giv-
en, unless on account of a duty performed.
BENEFICIUM NON DATUR NISI OFFICII CAU-
SA. A benefice is not granted except on account
or in consideration of duty. Adams Gloss.
BENEFICIUM PRINCIPIS DEBET ESSE MAN-
SURUM. The benefaction of a prince ought to be
lasting. Adams Gloss.
BENEFIT. Advantage; profit; fruit; privilege;
advantage. Fitch v. Bates, 11 Barb. (N.Y.) 473;
Ferrigino v. Keasbey, 93 Conn. 445, 106 A. 445,
447; In re Krause's Estate, 173 Wash. 1, 21 P.2d
268; a pecuniary advantage or profit; gain; ac-
count; interest; the whole benefit and entire
beneficial interest. Bird v. Newcomb, 170 Va. 208,
196 S.E. 605, 608.
In the Workmen's Compensation Act, the term
"benefits" is used of an award to be granted when
an injury results in death, and is distinguished
from "compensation," which is to be granted when
an injury results in incapacity or disability. Di
Cicco v. Industrial Commission of Ohio, 11 Ohio
App. 271, 273.
In Contracts
When it is said that a valuable consideration
for a promise may consist of a benefit to the prom-
isor, "benefit" means that the promisor has, in
return for his promise, acquired some legal right
to which he would not otherwise have been en-
titled. Irving v. Irwin, 24 P.2d 215, 216, 133 Cal.
App. 374. Woolum v. Sizemore, 267 Ky. 384, 102
S.W.2d 323, 324.
"Benefit" is not limited to pecuniary gains, nor to any
particular kind of advantage; it refers to what is ad-
vantageous, whatever promotes prosperity or happiness,
what enhances the value of the property or rights of citi-
zens as contradistinguished from what is injurious. Hoop-
er v. Merchants' Bank & Trust Co., 130 S.E. 49, 52, 190 N.
C. 423.
In Eminent Domain
It is a rule that, in assessing damages for pri-
vate property taken or injured for public use,
"special benefits" may be set off against the
amount of damage found, but not "general bene-
fits." Within the meaning of this rule, general
benefits are such as accrue to the community at
large, to the vicinage, or to all property similarly
situated with reference to the work or improve-
ment in question; while special benefits are such
as accrue directly and solely to the owner of the
land in question and not to others. Brand v.
Union Elevated R. Co., 101 N.E. 247, 249, 258 Ill.
133, Ann.Cas.1914B, 473, L.R.A.1918A, 878.
In Taxation
With reference to an assessment for a drainage
ditch, a benefit is anything that will make land
more valuable for tillage or more desirable for a
residence or more valuable in the general market.
Watson v. Armstrong, 180 Ind. 49, 102 N.E. 273.
BENEFIT ASSOCIATION. See Benefit Societies.
BENEFIT BUILDING SOCIETY. The original
name for what is now more commonly called a
"building society" (q. v.).
BENEFIT CERTIFICATE. A written obligation
to pay the person therein named the amount speci-
fied upon the conditions therein stipulated. Green
v. Grand United Order of Odd Fellows, Tex.Civ.
App., 163 S.W. 1068, 1070.
Also a term usually applied to policies issued
by fraternal and beneficiary societies. Chandler
v. New York Life Ins. Co., 194 Ark. 6, 104 S.W.2d
1060, 1061.
BENEFIT OF BARGAIN RULE. Under such rule
a defrauded purchaser may recover the differ-
ence between the real and the represented value
of the property purchased regardless of the fact
that the actual loss suffered might have been less.
Stewart v. Potter, 44 N.M. 460, 104 P.2d 736, 739.
BENEFIT OF CESSION. In the civil law. The
release of a debtor from future imprisonment for
his debts, which the law operates in his favor
upon the surrender of his property for the benefit
of his creditors. Poth.Proc.Civil, pt. 5, c. 2, § 1.
BENEFIT OF CLERGY. In its original sense, the
phrase denoted the exemption which was accorded
to clergymen from the jurisdiction of the secular
courts, or from arrest or attachment on criminal
process issuing from those courts in certain partic-
ular cases. Afterwards, it meant a privilege of
exemption from the punishment of death accorded
to such persons as were clerks, or who could
read. This privilege of exemption from capital
punishment was anciently allowed to clergymen
only, but afterwards to all who were connected
with the church, even to its most subordinate of-
ficers, and at a still later time to all persons who
could read, (then called "clerks,") whether ec-
clesiastics or laymen. It does not appear to have
been extended to cases of high treason, nor did
it apply to mere misdemeanors. The privilege
was claimed after the person's conviction, by a
species of motion in arrest of judgment, techni-
cally called "praying his clergy." As a means of
testing his clerical character, he was given a
psalm to read, (usually, or always, the fifty-first,)
and, upon his reading it correctly, he was turned
over to the ecclesiastical courts, to be tried by the
bishop or a jury of twelve clerks. These heard
him on oath, with his witnesses and compurga-
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BENEVOLENT
tors, who attested their belief in his innocence.
This privilege operated greatly to mitigate the ex-
treme rigor of the criminal laws, but was found to
involve such gross abuses that parliament began
to enact that certain crimes should be felonies
"without benefit of clergy," and finally, by St. 7
Geo. IV. c. 28, § 6, it was altogether abolished.
The act of congress of April 30, 1790, c. 9, § 31, 1
Stat. 119, provided that there should be no benefit
of clergy for any capital crime against the United
States, and, if this privilege formed a part of the
common law of the several states before the Rev-
olution, it no longer exists.
BENEFIT OF COUNSEL. The guaranty of "ben-
efit of counsel" to accused, given in the Georgia
Bill of Rights of Const. art. 1, § 1, par. 5, means
more than the mere appointment by the court of
counsel to represent the accused and implies also
that such counsel be given a reasonable time for
preparation to properly represent the accused at
the trial. Reliford v. State, 140 Ga. 777, 79 S.E.
1128, 1129. Sheppard v. State, 165 Ga. 460, 141
S.E. 196, 198.
BENEFIT OF DISCUSSION. In the civil law.
The right which a surety has to cause the prop-
erty of the principal debtor to be applied in satis-
faction of the obligation in the first instance.
Civ.Code La. arts. 3045-3051. In Scotch law.
That whereby the antecedent heir, such as the
heir of line in a pursuit against the heir of tail-
zie, etc., must be first pursued to fulfill the de-
funct's deeds and pay his debts. This benefit is
likewise competent in many cases to cautioners.
BENEFIT OF DIVISION. Same as beneficium
divisionis (q. v.).
BENEFIT OF INVENTORY. In the civil law.
The privilege which the heir obtains of being lia-
ble for the charges and debts of the succession,
only to the value of the effects of the succession,
by causing an inventory of these effects within the
time and manner prescribed by law. Civil Code
La. art. 1032.
BENEFIT OF ORDER. See Beneficium Ordinis.
BENEFIT SOCIETIES. Under this and several
similar names, in various states, corporations ex-
ist to receive periodical payments from members,
and hold them as a fund to be loaned or given
to members needing pecuniary relief. Such are
beneficial societies of Maryland, fund associations
of Missouri, loan and fund associations of Massa-
chusetts, mechanics' associations of Michigan, pro-
tection societies of New Jersey. Friendly societies
in Great Britain are a still more extensive and
important species belonging to this class. Comm.
v. Equitable Ben. Ass'n, 137 Pa. 412, 18 A. 1112.
BENERTH. A feudal service rendered by the
tenant to his lord with plow and cart. Cowell.
BENEVOLENCE. The doing of a kind or helpful
action towards another, under no obligation ex-
cept an ethical one.
The love of humanity; the desire to promote its
prosperity or happiness. The term includes acts
of well-wishing towards others, for the promotion
of general happiness, and plans actuated by love
of others and a desire for their well-being. In re
Peabody's Estate, 208 N.Y.S. 664, 671, 124 Misc.
338. Also beneficent; doing well.
It is a broader term than "charity" which it includes,
and with which it is frequently used synonymously.
"Charity" in its legal sense implies giving without con-
sideration or expectation of return, and "benevolence" ap-
plies to any act which is prompted by or has for its object
the well-being of others. State v. Texas Mut. Life Ins. Co.
of Texas, Tex.Civ.App., 51 S.W.2d 405, 410.
In public law. Nominally a voluntary gratuity
given by subjects to their king, but in reality a
tax or forced loan. Cowell; 1 Bla.Comm. 140.
BENEVOLENT. Philanthropic; humane; having
a desire or purpose to do good to men; intended
for the conferring of benefits, rather than for
gain or profit; loving others and actively desirous
of their well being. In re Altman's Estate, 149
N.Y.S. 601, 605, 8.7 Misc. 255.
This word is certainly more indefinite, and of far wider
range, than "charitable" or "religious ;" it would include
all gifts prompted by good-will or kind feeling towards
the recipient, whether an object of charity or not. The
natural and usual meaning of the word would so extend it.
It has no legal meaning separate from its usual meaning.
"Charitable" has acquired a settled limited meaning in
law, which confines it within known limits. But in all the
decisions in England on the subject it has been held that a
devise or bequest for benevolent objects, or in trust to give
to such objects, is too indefinite, and therefore void. Suter
v. Hilliard, 132 Mass. 413, 42 Am.Rep. 444;
This word, as applied to objects or purposes, may refer
to those which are in their nature charitable, and may
also have a broader meaning and include objects and pur-
poses not charitable in the legal sense of that word. Acts
of kindness, friendship, forethought, or good-will Might
properly be described as benevolent. It has therefore been
held that gifts to trustees to be applied for "benevolent
purposes" at their discretion, or to such benevolent pur-
poses as they could agree upon, do not create a public char-
ity. But where the word is used in connection with other
words explanatory of its meaning, and indicating the in-
tent of the donor to limit it to purposes strictly charitable,
it has been held to be synonymous with, or equivalent to,
"charitable." Suter v. Hilliard, 132 Mass. 412, 42 Am.Rep.
444;
BENEVOLENT ASSOCIATIONS. Those having a
philanthropic or charitable purpose, as distin-
guished from such as are conducted for profit;
specifically, "benefit associations" or "beneficial
associations." Methodist Episcopal Church Bara-
ca Club v. City of Madison, 167 Wis. 207, 167 N.
W. 258, L.R.A.1918D, 1124.
BENEVOLENT CORPORATION. One that min-
isters to all; the purpose may be anything that
promotes the mental, physical, or spiritual wel-
fare of man. Society of Helpers of Holy Souls v.
Law, 267 Mo. 667, 186 S.W. 718, 725; with respect
to exemption from succession tax. Corbin v.
American Industrial Bank & Trust Co., 95 Conn.
50, 110 A. 459, 461. The term may include a cor-
poration to which a bequest is made to be used in
the improvement of the social, physical, and eco-
nomic condition of the employees of a business
corporation. In re Altman's Estate, 149 N.Y.S.
601, 605, 87 Misc. 255.
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BENEVOLENT
BENEVOLENT SOCIETY. Benevolent associa-
tion. Spring Park Ass'n v. Rosedale Park Amuse-
ment Co., 216 Ala. 549, 114 So. 43, 44. In English.
law, "benevolent societies" are societies estab-
lished and registered under the Friendly Societies
Act, 1875, for any charitable or benevolent pur-
poses.
BENEVOLENTIA REGIS HABENDA. The form
in ancient fines and submissions to purchase the
king's pardon and favor in order to be restored
to place, title or estate. Paroch.Antiq. 172.
BENHURST. In Berkshire, a remedy for the in-
habitants thereof to levy money recovered against
them on the statute of hue and cry. 39 Eliz. c. 25.
BENIGNE FACIENDIE SUNT INTERPRETA-
TIONES CHARTARUM, UT RES MAGIS VA-
LEAT QUAM PEREAT; ET QUE LIBET CON-
CESSIO FORTISSIME CONTRA DONATOREM
INTERPRETANDA EST. Liberal interpretations
are to be made of deeds, so that the purpose may
rather stand than fall; and every grant is to
be taken most strongly against the grantor.
Hayes v. Kershow, 1 Sandf.Ch. (N.Y.) 258, 268.
BENIGNE FACIENDIE SUNT INTERPRETA-
TIONES, PROPTER SIMPLICITATEM LAICOR-
UM, UT RES MAGIS VALEAT QUAM PEREAT;
ET VERBA INTENTION!, NON E CONTRA, DE-
BENT INSERVIRE. Constructions [of written
instruments] are to be made liberally, on account
of the simplicity of the laity, [or common peo-
ple,] in order that the thing [or subject-matter]
may rather have effect than perish, [or become
void] ; and words must be subject to the inten-
tion, not the intention to the words. 2 Bla.Com.
379; 1 Bulstr. 175; Krider v. Lafferty, 1 Whart.
(Pa.) an.
BENIGNIOR SENTENTIA IN VERBIS GEN-
ERALIBUS SEU DUBIIS, EST PRIEFERENDA.
The more favorable construction is to be placed on
general or doubtful expressions. 2 Kent 557.
BENIGNIUS LEGES INTERPRETAND,E SUNT
QUO VOLUNTAS EARUM CONSERVETUR.
Laws are to be more liberally interpreted, in order
that their intent may be preserved. Dig. 1, 3, 18.
BENZINE. A crude petroleum distillate. George
K. Hale Mfg. Co. v. Hafleigh & Co., C.C.A.Pa., 52
F.2d 714, 718.
BEQUEATH. To give personal property by will
to another. Fielding v. Alkire, 124 Kan. 592, 261
P. 597, 599. It therefore is distinguishable from
"devise," which is properly used of realty. Stubbs
v. Abel, 114 Or. 610, 233 P. 852, 857; Fleck v.
Harmstad, 155 A. 875, 876, 304 Pa. 302, 77 A.L.R.
874.
But if the context clearly shows the intention of the
testator to use the word "bequeath" as synonymous with
"devise." it may be held to pass real property. Stubbs v.
Abel, 114 Or. 610, 233 P. 852, 859.
BEQUEST. A gift by will of personal property;
a legacy. In re Fratt's Estate, 60 Mont. 526, 199
P. 711, 714; In re Wood's Estate, 6 N.W.2d 846,
848, 232 Iowa 1004; Disposition of realty in will is
termed "devise." Grand Island Trust Co. v. Snell,
249 N.W. 293, 125 Neb. 148.
The term does not mean a "gift" in the narrow sense of
a voluntary act of charity or good will, but ordinarily
means a testamentary disposition of the testator's person-
alty. First Presbyterian Church of Mt. Vernon v. Dennis,
178 Iowa, 1352, 161 N.W. 183, 185, L.R.A.1917C, 1005. It is
not necessarily limited to a gratuity, and may include a
recompense. U. S. v. Merriam, 44 S.Ct. 69, 70, 263 U.S.
179, 68 L. Ed. 240, 29 A.L.R. 1547.
"Bequest" and "devise" are often used synonymously.
In re McGovern's Estate, 77 Mont. 182, 250 P. 812, 817.
Conditional Bequest
One the taking effect or continuing of which de-
pends upon the happening or non-occurrence of
a particular event. Merrill v. College, 74 Wis.
415, 43 N.W. 104.
Executory Bequest
The bequest of a future, deferred, or contingent
interest in personalty.
Residuary Bequest
A gift of all the remainder of the testator's
personal estate, after payment of debts and lega-
cies, etc.
Specific Bequest
One whereby the testator gives to the legatee all
his property of a certain class or kind; as all his
pure personalty.
BERAT. Also barat. A warrant or patent of
dignity or privilege given by an Oriental monarch.
Cent. Dict.
BERBIAGE. A rent paid for the pasturing of
sheep. Wharton.
BERCARIA. In old English law, a sheepfold;
also a place where the bark of trees was laid to
tan.
BERCARIUS, or BERCATOR. A shepherd.
BEREWICHA, or BEREWICA. In old English
law. A term used in Domesday for a village or
hamlet belonging to some town or manor.
BERG. A rock (Cent. Dict.) ; a hill (Wharton) ;
in South Africa, a mountain (Webster).
BERGHMAYSTER. An officer having charge of
a mine. A bailiff or chief officer among the Der-
byshire miners, who, in addition to his other du-
ties, executes the office of coroner among them.
Blount; Cowell.
BERGHMOTH, or BERGHMOTE. The ancient
name of the court now called "barmote," (q. v.).
BERIA, BERIE, or BERRY. A plain; a large
open field. Wharton. See Berra.
BERM BANK. A ledge at the bottom of a cutting
or bank, as of a creek, to catch earth that may
roll down the slope, or to strengthen the bank.
Miller v. State, 149 N.Y.S. 788, 789, 164 App.Div.
522.
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BET
BERNET. In Saxon law. Burning; the crime of
house burning, now called "arson." Cowell;
Blount.
BERRA. In old law. A plain; open heath. Cow-
ell.
BERRY, or BURY. A villa or seat of habitation
of a nobleman; a dwelling or mansion house; a
sanctuary.
BERTILLON SYSTEM. A method of anthropom-
etry (q. v.), used chiefly for the identification of
criminals and other persons, consisting of the tak-
ing and recording of a system of numerous, mi-
nute, and uniform measurements of various parts
of the human body, absolutely and in relation to
each other, the facial, cranial, and other angles,
and of any eccentricities or abnormalities noticed
in the individual.
BERTON. A large farm; the barn-yard of a large
farm.
BES. Lat. In the Roman law. A division of the
as, or pound, consisting of eight uncice, or duo-
decimal parts, and amounting to two-thirds of the
as. 2 Bl.Comm. 462 note m.
Two-thirds of an inheritance. Inst. 2, 14, 5.
Eight per cent. interest. 2 Bl.Comm. ubi supra.
BESAILE, BESAYLE. The great-grandfather,
proavus. 1 Bl.Comm. 186.
BESAYEL, Besaiel, Besayle. In old English law.
A writ which lay where a great-grandfather died
seised of lands and tenements in fee-simple, and
on the day of his death a stranger abated, or en-
tered and kept out the heir. Reg.Orig. 226; Fitzh.
Nat.Brev. 221 D; 3 Bl.Comm. 186.
BESIDES. In addition to; moreover; also; like-
wise. State v. State Road Commission, 100 W.Va.
531, 131 S.E. 7, 10.
In provisions in a will for children "besides" an eldest
son, no children take unless there be a son. 4 Dr. & War.
235.
BESEECH. To entreat; to emplore. Tiencken v.
Zerbst, 196 S.C. 438, 13 S.E.2d 483, 484.
BESOIN. Fr. Need. See Au Besoin.
BESOT. To stupefy, to make dull or senseless,
to make to dote; and "to dote" is to be delirious,
silly, or insane. Gates v. Meredith, 7 Ind. 440, 441.
BESS. A well-known contraction of "Elizabeth."
H. R. & C. Co. v. Smith, 208 N.Y.S. 396, 400, 212
App.Div. 173.
BESSEMERIZING. A process by which copper
relatively pure is obtained from matte. Peirce-
Smith Converter Co. v. United Verde Copper Co.,
D.C.Del., 293 F. 108, 109.
BEST. Of the highest quality; of the greatest
usefulness for the purpose intended. For ex-
ample:
The "best bid" of interest by a prospective depositary of
school funds would not necessarily be the highest bid, but,
looking to the solvency of the bidder, the bond tendered,
and all the circumstances surrounding the transaction, the
safety and preservation of the school fund, the "best bid"
might be the lowest bid. Donna Independent School Dist.
v. First State Bank of Donna, Tex.Civ.App., 227 S.W. 974,
975.
Where one covenants to use his "best endeavors," there
is no breach if he is prevented by causes wholly beyond
his control and without any default on his part. 7 H. &
N. 92.
The "best interests" of a child whose custody is in ques-
tion has reference more particularly to the moral welfare
than to mere comforts, benefits, or advantages that wealth
can give. Jones v. Moore, 61 Utah, 383, 213 P. 191, 194.
The "best interests" of an estate mean the greatest or
most advantage or usefulness to such estate. Stockyards
Nat. Bank of South Omaha v. Bragg, 67 Utah, 60, 245 P.
966, 971.
BEST EVIDENCE. Primary evidence, as distin-
guished from secondary; original, as distin-
guished from substitutionary; the best and high-
est evidence of which the nature of the case is sus-
ceptible, not the highest or strongest evidence
which the nature of the thing to be proved admits
of. See, also, Primary Evidence.
A written instrument is itself always regarded as the
primary or best possible evidence of its existence and
contents; a copy, or the recollection of a witness, would
be secondary evidence. Manhattan Malting Co. v. Swete-
land, 14 Mont. 269, 36 P. 84.
"Best evidence" or "primary evidence" includes the best
evidence which is available to a party and procurable un-
der the existing situation, and all evidence falling short of
such standard, and which in its nature suggests there is
bettei evidence of the same fact, is "secondary evidence."
Best v. Equitable Life Assur. Soc., Mo.App., 299 S.W. 118,
120.
The best evidence of a fact is the testimony of a person
who knows. State v. Normandale, 154 La. 523, 97 So. 798,
799 (mother could testify to the date of her daughter's
birth, as against an objection that the baptismal certifi-
cate or the registry was the best evidence).
"Best evidence rule". Is that highest available degree
of proof must be produced. Cheadle v. Bardwell, 95 Mont.
299, 26 P.2d 336. It means that no evidence which is mere-
ly substitutionary in its nature shall be received so long as
original evidence can be had; Pettit v. Campbell, Tex.Civ.
App., 149 S.W.2d 633, 635, 636; that contents of document
must be proved by producing document itself. Nunan v.
Timberlake, 85 F.2d 407, 410, 66 App.D.C. 150.
BESTIR, A beast, as a being without reason;
—opposed to man; while animal, a living being,
includes man also. Adams Gloss., citing Just.
Inst., 2, 1, 12.
BESTIAE CARUCAE. Beasts of the plow. Ad-
ams Gloss., citing Fleta, IV, c. 17, § 14.
BESTIALITY. A sexual connection between a
human being and a brute of the opposite sex.
State v. Poole, 122 P.2d 415, 416, 59 Ariz. 44.
At common law the term "crime against nature" em-
braced both "sodomy" and "bestiality", State v. Poole,
122 P.2d 415, 416, 59 Ariz. 44. See Sodomy.
BESTOW. To give, grant, confer, or impart;
not necessarily limited in meaning to "devise."
Tillett v. Nixon, 180 N.C. 195, 104 S.E. 352, 355.
BET. An agreement between two or more per-
sons that a sum of money or other valuable
thing, to which all jointly contribute, shall become
the sole property of one or some of them on the
happening in the future of an event at present un-
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certain, or according as a question disputed be-
tween them is settled in one way or the other.
Coulter v. State, 122 Tex.Cr.R. 9, 53 S.W.2d 477,
480.
A contract by which two or more parties agree that a
sum of money, or other thing, shall be paid or delivered to
one of them on the happening or not happening of an un-
certain event. Grooms v. Knox, 25 Ala.App. 185, 142 So.
582.
In a "bet" or "wager" money belongs to the persons
posting it, each of whom has a chance to win it, but, in
the case of a "purse" or "premium," money belongs to the
person offering it, who has no chance to win it, but is cer-
tain to lose it. Toomey v. Penwell, 76 Mont. 166, 245 P.
943, 945, 45 A.L.R. 993.
Bet and wager are synonymous terms. Woodcock v. Mc-
Queen, 11 Ind. 16; Shumate v. Com., 15 Grat. (Va.) 660.
BETHLEHEM. See Bedlam.
BETTING BOOK. A book kept for registering
bets on the result of a race as operated on race
track. In a broader sense, the "betting book" is
that book which enables the professional bettor to
carry on his business, and to promote a race, and
it includes the book, the making book and the
bookmaker. State v. Austin, 142 La. 384, 76 So.
809, 810; People v. Semmler, 345 Ill. 272, 178 N.E.
100, 101.
BETRAYAL. A "betrayal," as of a professional
secret on the part of a physician, signifies a
wrongful disclosure in violation of the trust im-
posed by the patient. Simonsen v. Swenson, 104
Neb. 224, 177 N.W. 831, 832, 9 A.L.R. 1250.
BETROTHED. One who has exchanged promises
to marry. The term may be synonymous with "in-
tended wife." Mace v. Grand Lodge, A. 0. U. W.
of Massachusetts, 234 Mass. 299, 125 N.E. 569.
BETROTHMENT, BETROTHAL. Mutual prom-
ise of marriage; the plighting of troth; a mutual
promise or contract between a man and woman
competent to make it, to marry at a future time.
BETTER DESCRIBED. More fully delineated or
more fully pictured or painted. Katzin v. Kru-
vant, 99 N.J.Eq. 619, 133 A. 516, 517.
BETTER EQUITY. See Equity.
BETTERMENT. An improvement put upon an
estate which enhances its value more than mere
repairs. The improvement may be either tempo-
rary or permanent. People v. Klee, 282 Ill. 440,
118 N.E. 754, 757.
Also applied to denote the additional value which an es-
tate acquires in consequence of some public improvement,
as laying out or widening a street, etc., Chase v. Sioux
City, 86 Iowa, 603, 53 N.W. 333.
BETTERMENT ACTS. Statutes which provide
that a bona fide occupant of real estate making
lasting improvements in good faith shall have a
lien upon the estate recovered by the real owner
to the extent that his improvements have in-
creased the value of the land. Also called "oc-
cupying claimant acts." Jones v. Hotel Co., 86
F. 386, 30 C.C.A. 108.
BETWEEN. A space which separates. Hobson v.
Postal Telegraph-Cable Co., 161 Tenn. 419, 32 S.
W.2d 1046. Strictly applicable • only with refer-
ence to two things, but this may be understood as
including cases in which a number of things are
discriminated collectively as two wholes, or as tak-
en in pairs, or where one thing is set off against
a number of others. In re McShane's Will, 286
N.Y.S. 680, 682, 158 Misc. 777. Sometimes used
synonymously with "among". In re Moore's Es-
tate, 157 Pa.Super. 296, 43 A.2d 359.
As a measure or indication of distance, this word has
the effect of excluding the two termini. Morris & E. R.
Co. v. Central R. Co., 31 N.J.Law, 212.
If an act is to be done "between" two certain days, it
must be performed before the commencement of the latter
day. In computing the time in such a case, both the days
named are to be excluded. Hodges v. Filstrup, 94 Fla. 943,
114 So. 521, 522. But a clause in a contract of sale to the
effect that the purchaser could require the vendor to repur-
chase between the fifth and sixth year from a certain date
means during the sixth year. Van Demark v. California
Home Extension Ass'n, 43 Cal.App. 685, 185 P. 866, 868.
In case of a devise to A. and B. "between them," these
words create a tenancy in common. Lashbrook v. Cock, 2
Mer. 70.
Between equal equities the law must prevail.
This is hardly of general application.
BEVERAGE. A liquor or liquid for drinking.
Burnstein v. U. S., C.C.A.Cal., 55 F.2d 599, 603.
Especially pleasant or refreshing drink, or a ha-
bitual one. Tennant v. F. C. Whitney & Sons, 133
Wash. 581, 234 P. 666, 670.
This term is properly used to distinguish a sale of liquors
to be drunk for the pleasure of drinking, from liquors to
be drunk in obedience to a physician's advice, Falstaff
Corporation v. Allen, D.C.Mo., 278 F. 643, 645; or from a
liquid which it is possible to swallow, but which is not rea-
sonably palatable or fit for drinking, Tennant v. F. C.
Whitney & Sons, 133 Wash. 581, 234 P. 666. Thus, it is
held that pure alcohol is not a "beverage" but a violent
irritant. Chas. L. Joy & Co. v. Carlson, 28 Idaho 445, 154
P. 640, 641.
This term sometimes has a narrower meaning signify-
ing a drink artificially prepared. Climax Dairy Co. v.
Mulder, 78 Colo. 407, 242 P. 666, 669. United States v. Rob-
ason, D.C.Kan., 38 F.Supp. 991, 992.
BEWARED. 0. Eng. Expended. Before the
Britons and Saxons had introduced the general
use of money, they traded chiefly by exchange of
wares. Wharton.
BEYOND A REASONABLE DOUBT. In evi-
dence means fully satisfied, entirely convinced,
satisfied to a moral certainty; State v. Harris, 28
S.E.2d 232, 237, 223 N.C. 697; and phrase is the
equivalent of the words clear, precise and indubi-
table. Ferguson Packing Co. v. Mihalic, 99 Pa.Su-
per. 158, 162.
An accused's guilt must be established "beyond a rea-
sonable doubt," which means that facts proven must, by
virtue of their probative force, establish guilt. People ex
rel. Schubert v. Pinder, 9 N.Y.S.2d 311, 312, 170 Misc.
345.
BEYOND SEA. Beyond the limits of the kingdom
of Great Britain and Ireland; outside the United
States; out of the state.
Beyond sea, beyond the four seas, beyond the seas, and
out of the realm, are synonymous. Prior to the union of
the two crowns of England and Scotland, on the accession
of James I., the phrases "beyond the four seas," "beyond
the seas," and "out of the realm," signified out of the
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limits of the realm of England. Pancoast's Lessee v. Addi-
son, 1 Han & J. (Md.) 350, 2 Am.Dec. 520.
In Pennsylvania, it has been construed to mean "with-
out the limits of the United States," which approaches the
literal signification. Ward v. Hallam, 2 Da11. 217, 1 L.1 d.
355. The same construction has been given to it in Mis-
souri. Keeton's Heirs v. Keeton's Adm'r, 20 'Mo. 530. See
Ang.Lim. §§ 200, 201.
BIAS. Inclination; bent; prepossession; a pre-
conceived opinion; a predisposition to decide a
cause or an issue in a certain way, which does
not leave the mind perfectly open to conviction.
Maddox v. State, 32 Ga. 587, 79 Am.Dec. 307; Pier-
son v. State, 18 Tex.App. 558. To incline to one
side. Yarbrough v. Mallory, 225 Ala. 579, 144 So.
447, 448. Condition of mind, which sways judg-
ment and renders judge unable to exercise his
functions impartially in particular case. Evans v.
Superior Court in and for Los Angeles County, 107
Cal.App. 372, 290 P. 662, 665.
As used in law regarding disqualification of judge, refers
to mental attitude or disposition of the judge toward a
party to the litigation, and not to any views that he may
entertain regarding the subject matter involved. State ex
rel. Mitchell v. Sage Stores Co., 157 Kan. 622, 143 P.2d 652,
655.
Actual bias consists in the existence of a state of mind
on the part of the juror which satisfies the court, in the
exercise of a sound discretion, that the juror cannot try the
issues impartially and without prejudice to the substantial
rights of the party challenging. People v. Wells, 100 Cal.
227, 34 P. 718.
BIBLE. See Family Bible.
BICAMERAL SYSTEM. A term applied by Jere-
my Bentham to the division of a legislative body
into two chambers, as in the United States gov-
ernment.
BID. An offer by an intending purchaser to pay
a designated price for property which is about to
be sold at auction. U. S. v. Vestal, D.C.N.C., 12
F. 59. Payne v. Cave, 3 Term, 149; Eppes v. Rail-
road Co., 35 Ala. 56. See Chilling a sale.
An offer to perform a contract for work and
labor or supplying materials at a specified price.
Similarly, an offer to do any of various other acts, as the
payment by a bank of a particular rate of interest for the
privilege of becoming a depositary of county funds. Casey
v. Independence County, 109 Ark. 11, 159 S.W. 24, 25, Ann.
Cas.1915C, 1008. A "bid" for bonds is no more nor less
than a proposition. Joint School Dist. No. 132 in Major
County and Alfalfa County v. Dabney, 127 Oki. 234, 260 P.
486, 491.
—Bid in. Property sold at auction is said to be
"bid in" by the owner or an incumbrancer or some
one else who is interested in it, when he attends
the sale and makes the successful bid.
—Bid off. One is said to "bid off" a thing when
he bids for it at an auction sale, and it is knocked
down to him in immediate succession to the bid
and as a consequence of it. Eppes v. Railroad
Co., 35 Ala. 56; Doudna, v. Harlan, 45 Kan. 484,
25 Pac. 883.
—Bidder. One who makes a bid. One who offers
to pay a specified price for an article offered for
sale at a public auction. Webster v. French, 11
Ill. 254. As to "Responsible bidder" see that title.
—Biddings. Offers of a designated price for goods
or other property put up for sale at auction.
—By-bidding. In the law relating to sales by auc-
tion, this term is equivalent to "puffing." The
practice consists in making fictitious bids for the
property, under a secret arrangement with the
owner or auctioneer, for the purpose of mislead-
ing and stimulating other persons who are bidding
in good faith.
—Competitive bidding. "Competitive bidding"
means that the council must by due advertise-
ment give opportunity for everyone to bid, but
does not mean that more than one bid must be
submitted. Blanton v. Town of Wallins, 218 Ky.
295, 291 S.W. 372, 375. The term means bidding
upon the same undertaking, upon the same ma-
terial items in the subject-matter, upon the same
thing. Leininger v. Ward, 126 Okl. 114, 258 P.
863, 864.
—Upset bid. A bid made after a judicial sale, but
before the successful bid at the sale has been con-
firmed, larger or better than such successful bid,
and made for the purpose of upsetting the sale
and securing to the "upset bidder" the privilege of
taking the property at his bid or competing at a
new sale. Yost v. Porter, 80 Va. 858.
BIDAL, or BIDALL. An invitation of friends to
drink ale at the house of some poor man, who
hopes thereby to be relieved by charitable con-
tribution. It is something like "house-warming,"
i. e., a visit of friends to a person beginning to
set up housekeeping. Wharton. See Bed-Ale.
"There was an antient Custom called a Bid-Ale
* * * when any honest Man decayed in his
Estate, was set up again by the liberal Benevo-
lence and Contributions of Friends at a Feast, to
which those Friends were bid or invited. It was
most used in the West of England, and in some
Counties called a Help Ale." Brand's Pop. Antiq.
(1777), p. 339, note.
BIELBRIEF. Germ. In European maritime law.
A document furnished by the builder of a vessel,
containing a register of her admeasurement, par-
ticularizing the length, breadth, and dimensions of
every part of the ship.
It sometimes also contains the terms of akreement be-
tween the party for whose account the ship is built, and
the ship-builder. It has been termed in English the "grand
bill of sale ;" in French, "contrat de construction ou de la
vente d'un vaisseau," and corresponds in a great degree
with the English, French, and American "register," (q. v.,)
being an equally essential document to the lawful owner-
ship of vessels. Jac. Sea Laws, 12, 13, and note. In the
Danish law, it is used to denote the contract of bottomry.
BIENES. Sp. In Spanish law. Goods; property
of every description, including real as well as
personal property; all things (not being persons)
which may serve for the uses of man. Larkin
v. U. S., 14 Fed.Cas. 1154.
—Bienes comunes. Common property; those
things which, not being the private property of
any person, are open to the use of all, such as the
air, rain, water, the sea and its beaches. Lux v.
Haggin, 69 Cal. 255, 315, 10 Pac. 707.
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BIENES
—Bienes ganariciales. A species of community in
property enjoyed by husband and wife, the prop-
erty being divisible equally between them on the
dissolution of the marriage; does not include what
they held as their separate property at the time of
contracting the marriage. Welder v. Lambert, 91
Tex. 510, 44 S.W. 281.
—Bienes publieos. Those things which, as to prop-
erty, pertain to the people or nation, and, as to
their use, to the individuals of the territory or
district, such as rivers, shores, ports, and public
roads. Lux v. Haggin, 69 Cal. 315, 10 P. 707.
BIENNIALLY. This term, in a statute, signifies,
not duration of time, but a period for the happen-
ing of an event; once in every two years. People
v. Tremain, 9 Hun (N.Y.) 576; People v. Kilbourn,
68 N.Y. 479.
BIENS. In English law. Property of every de-
scription, except estates of freeho\d and inheri-
tance. Sugd.Vend. 495; Co.Litt. 119b.
In French law. This term includes all kinds
of property, real and personal. Biens are divided
into biens meubles, movable property; and biens
immeubles, immovable property. The distinction
between movable and immovable property is rec-
ognized by the continental jurists, and gives rise,
in the civil as well as in the common law, to many
important distinctions as to rights and remedies.
Story, Confl.Laws, § 13, note 1. Castle v. Castle,
C.C.A.Hawaii, 267 F. 521, 523.
BIGA, or BIGATA. A cart or chariot drawn with
two horses, coupled side to side; but it is said to
be properly a cart with two wheels, sometimes
drawn by one horse; and in the ancient records
it is used for any cart, wain, or wagon. Jacob.
BIGAMUS. In the civil law. A man who was
twice married; one who at different times and
successively has married two wives. 4 Inst. 88.
One who has two wives living. One who marries
a widow.
Used in ecclesiastical matters as a reason for
denying benefit of the clergy. Termes de la Ley.
BIGAMUS SEU TRIGAMUS, ETC., EST QUI DI-
VERSIS TEMPORIBUS ET SUCCESSIV1 DUAS
SEU TRES UXORES HABUIT. 4 Inst. 88. A big-
amus or trigamus, etc., is one who at different
times and successively has married two or three
wives.
BIGAMY. The criminal offense of willfully and
knowingly contracting a second marriage (or go-
ing through the form of a second marriage) while
the first marriage, to the knowledge of the of-
fender, is still subsisting and undissolved. Scog-
gins v. State, 32 Ark. 213; People v. Manfredonio,
191 N.Y.S. 748, 117 Misc. 632, 39 N.Y.Cr.R. 41.
The state of a man who has two wives, or of a
woman who has two husbands, living at the same
time. State v. Lindsey, 26 N.M. 526, 194 P. 877.
Farewell v. Commonwealth, 189 S.E. 321, 323, 167
Va. 475.
The offense of having a plurality of wives at the same
time is commonly denominated "polygamy;" but the name
"bigamy" has been more fre q uently given to it in legal
proceedings. 1 Russ.Crimes, 185.
The use of the word "bigamy" to describe this offense is
well established by long usage, although often criticized as
a corruption of the true meaning of the word. Polygamy
is suggested as the correct term, instead of bigamy, to
designate the offense of having a plurality of wives or hus-
bands at the same time, and has been adopted for that
purpose in the Massachusetts statutes. But as the sub-
stance of the offense is marrying a second time, while
having a lawful husband or wife living, without regard to
the number of marriages that may have taken place, biga-
my seems not an inappropriate term. The objection to
Its use urged by Blackstone (4 Bl.Comm. 163) seems to be
founded not so much upon considerations of the etymology
of the word as upon the propriety of distinguishing the ec-
clesiastical offense termed "bigamy" in the canon law, and
which is defined below, from the offense known as "big-
amy" in the modern criminal law. The same distinction is
carefully made by Lord Coke, (4 Inst. 88.) But, the ec-
clesiastical offense being now obsolete, this reason for sub-
stituting polygamy to denote the crime here defined ceas-
es to have weight. Abbott.
In the canon law, the term denoted the offense
committed by an ecclesiastic who married two
wives successively. It might be committed either
by marrying a second wife after the death of a
first or by marrying a widow.
BIGOT. An obstinate person, or one that is wed-
ded to an opinion, in matters of religion, etc.
BILAGINES. By-laws of towns; municipal laws.
BILAN. A term used in Louisiana, derived from
the French. A book in which bankers, merchants,
and traders write a statement of all they owe and
all that is due them; a balance-sheet. See Dauph-
in v. Soulie, 3 Mart. (N.S.) 446.
BILANCIIS DEFERENDIS. In English law. An
obsolete writ addressed to a corporation for the
carrying of weights to such a haven, there to
weigh the wool anciently licensed for transporta-
tion. Reg.Orig. 270.
BILATERAL CONTRACT. A term, used original-
ly in the civil law, but now generally adopted, de-
noting a contract in which both the contracting
parties are bound to fulfill obligations reciprocally
towards each other; as a contract of sale, where
one becomes bound to deliver the thing sold, and
the other to pay the price of it. Montpelier Semi-
nary v. Smith, 69 Vt. 382, 38 A. 66. A contract
executory on both sides, National Surety Co. v.
City of Atlanta, 102 S.E. 175, 176, 24 Ga.App. 732,
and one which includes both rights and duties
on each side, Crane Ice Cream Co. v. Terminal
Freezing & Heating Co., 147 Md. 588, 128 A. 280,
282, 39 A.L.R. 1184. One containing mutual prom-
ises between parties; each party being both prom-
isor and promisee. Aden v. Dalton, 341 Mo. 454,
107 S.W.2d 1070, 1073.
"Every convention properly so called consists of a prom-
ise or mutual promises proffered and accepted. Where one
only of the agreeing parties gives a promise, the conven-
tion is said to be 'unilateral.' Wherever mutual promises
are proffered and accepted, there are, in strictness, two
or more conventions. But where the performance of eith-
er of the promises is made to depend on the performance
of the other, the several conventions are commonly deemed
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one convention and the convention is then said to be 'bi-
lateral.' " Aust.Jur. § 308.
See, also, Contract.
BILBOES. A device used for punishment at sea,
similar to the stocks (q. v.) on land.
BILGED. In admiralty law and marine insur-
ance. That state or condition of a vessel in which
water is freely admitted through holes and
breaches made in the planks of the bottom, occa-
sioned by injuries, whether the ship's timbers are
broken or not. Peele v. Insurance Co., 3 Mason,
27, 39, 19 Fed.Cas. 103.
BILINE. A word used by Britton in the sense of
"collateral." En line biline, in the collateral line.
Britt, c. 119.
BILINGUIS. Of a double language or tongue;
that can speak two languages. A term applied in
the old books to a jury composed partly of Eng-
lishmen and partly of foreigners, which, by the
English law, an alien party to a suit is, in certain
cases, entitled to; more commonly called a "jury
de medietate linguce." 3 Bl.Comm. 360; 4 Steph.
Comm. 422.
BILL. A formal declaration, complaint, or state-
ment of particular things in writing.
As a legal term, this word has many meanings
and applications, the more important of which are
enumerated below.
1. A formal written statement of complaint
to a court of justice
In the ancient practice of the court of king's
bench, the usual and orderly method of beginning
an action was by a bill, or original bill, or plaint.
This was a written statement of the plaintiff's
cause of action, like a declaration or complaint,
and always alleged a trespass as the ground of it,
in order to give the court jurisdiction. 3 Bl.Comm.
43.
In Scotch law, every summary application in
writing, by way of petition to the Court of Ses-
sion, is called a "bill." Cent. Dict.
— Bill chamber. In Scotch law. A department of
the court of session in which petitions for sus-
pension, interdict, etc., are entertained. It is
equivalent to sittings in chambers in the English
and American practice. Paters. Comp.
— Bill of privilege. In old English law. A method
of proceeding against attorneys and officers of the
court not liable to arrest. 3 Bl.Comm. 289.
—Bill of proof. In English practice. The name
given, in the mayor's court of London, to a species
of intervention by a third person laying claim to
the subject-matter in dispute between the parties
to a suit.
2. A species of writ
A formal written declaration by a court to its
officers, in the nature of process.
—Bill of Middlesex. An old form of process sim-
ilar to a capias, issued out of the court of king's
bench in personal actions, directed to the sheriff
of the county of Middlesex, (hence 'the name,)
and commanding him to take the defendant and
have him before the king at Westminster on a
day named, to answer the plaintiff's complaint.
3. A formal written petition
To a superior court for action to be taken in a
cause already determined, or a record or certified
account of the proceedings in such action or some
portion thereof, accompanying such a petition.
— Bill of advocation. In Scotch practice. A bill
by which the judgment of an inferior court is ap-
pealed from, or brought under review of a su-
perior. Bell.
—Bill of certiorari. A bill: the object of which is
to remove a suit in equity from some inferior
court to the court of chancery, or some other su-
perior court of equity, on account of some alleged
incompetency of the inferior court, or some injus-
tice in its proceedings. Story, Eq.P1. (5th Ed.) §
298.
—Bill of evidence. Stenographer's transcript of
testimony heard at trial and may be considered on
appeal as bill of exceptions. Spencer v. Common-
wealth, 250 Ky. 370, 63 S.W.2d 288.
— Bill of exceptions. A formal statement in writ-
ing of the objections or exceptions taken by a
party during the trial of a cause to the decisions,
rulings, or instructions of the trial judge, stating
the objection, with the facts and circumstances on
which it is founded, and, in order to attest its
accuracy, signed and sealed by the judge; the
object being to put the controverted rulings or
decisions upon the record for the information of
the appellate court. Buessel v. U. S., C.C.A.Conn.,
258 Fla. 811, 815.
It is designed to preserve and make a part of the record
proceedings not otherwise of record. Yott v. Yott, 100 N.
E. 902, 903, 257 Iii. 419; It is only that part of the proceed-
ings not embraced in the judgment roll. When the ends of
justice require it, the terms "bill of exceptions" and
"statement of case" are regarded as synonymous; Shaw-
nee Commercial College v. Aydelotte, 38 P.2d 579, 581, 170
Okl. 15.
"Bill of exceptions" and "transcripts of evidence," how-
ever, are clearly distinguishable. The latter may contain
no objection or exception, and nothing other than the evi-
dence introduced on the trial; the former is, strictly
speaking, only a record which points out alleged errors
committed below in relation to evidence as well as other
things. Broadway & Newport Bridge Co. v. Common-
wealth, 173 Ky. 165, 190 S.W. 715, 719.
4. In equity practice
A formal written complaint, in the nature of a
petition, addressed by a suitor in chancery to the
chancellor or to a court of equity or a court having
equitable jurisdiction, showing the names of the
parties, stating the facts which make up th.,  case
and the complainant's allegations, averring that
the acts disclosed are contrary to equity, and pay-
ing for process and for specific relief, or for such
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relief as the circumstances demand. Sharon v.
Sharon, 67 Cal. 185, 7 P. 456.
—Bill for a new trial. A bill in equity in which
the specific relief asked is an injunction against
the execution of a judgment rendered at law, and
a new trial in the action, on account of some fact
which would render it inequitable to enforce the
judgment, but which was not available to the
party on the trial at law, or which he was pre-
vented from presenting by fraud or accident, with-
out concurrent fraud or negligence on his own
part.
—Bill for foreclosure. One which is filed by a
mortgagee against the mortgagor, for the purpose
of having the estate sold, thereby to obtain the
sum mortgaged on the premises, with interest and
costs. 1 Madd.Ch.Pr. 528.
—Bill for fraud. The object and effect of it, even if
the fraud consists of want of notice, are to vacate
the former decree, not to retry the case. Caldwell
v. Huffstutter, 173 Tenn. 225, 116 S.W.2d 1017, 1019.
—Bill in aid of execution. A bill to set aside en-
cumbrances or conveyances therein specified as
fraudulent. Pape v. Pareti, 42 N.E.2d 361, 364, 315
Ill.App. 1 ; Dean v. Torrence, 299 N.W. 793, 796, 299
Mich. 24.
—Bill in nature of a bill of review. A bill in
equity, to obtain a re-examination and reversal of
a decree, filed by one who was not a party to the
original suit, nor bound by the decree.
—Bill in nature of a bill of revivor. Where, on
the abatement of a suit, there is such a transmis-
sion of the interest of the incapacitated party that
the title to it, as well as the person entitled, may
be the subject of litigation in a court of chancery,
the suit cannot be continued by a mere bill of
revivor, but an original bill upon which the title
may be litigated must be filed. This is called a
"bill in the nature of a bill of revivor." It is
founded on privity of estate or title by the act of
the party. And the nature and operation of the
whole act by which the privity is created is open
to controversy. Story, Eq.P1. §§ 378-380; 2 Amer.
& Eng.Enc.Law, 271.
—Bill in nature of a supplemental bill. A bill
filed when new parties, with new interests, arising
from events happening since the suit was com-
menced, are brought before the court; wherein it
differs from a supplemental bill, which is properly
applicable to those cases only where the same
parties or the same interests remain before the
court. Story, Eq.P1. (5th Ed.) § 345 et seq.
—Bill in nature of interpleader. See Bill of Inter-
pleader.
—Bill of conformity. One filed by an executor or
administrator, who finds the affairs of the de-
ceased so much involved that he cannot safely
administer the estate except under the direction of
a court of chancery. This bill is filed against the
creditors, generally, for the purpose of having all
their claims adjusted, and procuring a final de-
cree settling the order of payment of the assets.
1 Story, Eq.Jur. § 440.
—Bill of discovery. A proceeding by a party
against an adversary for discovery of facts within
adversary's knowledge, or discovery of documents,
writings, or other things within his possession or
power, to be used either offensively or defensively
in a pending or contemplated action. Dallas Joint
Stock Land Bank v. Rawlins, Tex.Civ.App., 129 S.
W.2d 485, 486; First Nat. Bank v. Dade-Broward
Co., 171 So. 510, 125 Fla. 594.
In aid of action at law is equitable remedy to enable
litigant to obtain, prior to trial, such information as is in
exclusive possession of adverse party and is necessary to
establishment of complainant's case. Yorkshire Worsted
Mills v. National Transit Co., 325 Pa. 427, 190 A. 897, 898.
—Bill of information. Where a suit is instituted
on behalf of the crown or government, or of those
of whom it has the custody by virtue of its pre-
rogative, or whose rights are under its particular
protection, the matter of complaint is offered to
the court by way of information by the attorney
or solicitor general, instead of by petition. Where
a suit immediately concerns the crown or govern-
ment alone, the proceeding is purely by way of
information, but, where it does not do so imme-
diately, a relator is appointed, who is answerable
for costs, etc., and, if he is interested in the mat-
ter in connection with the crown or government,
the proceeding is by information and bill. In-
formations differ from bills in little more than
name and form, and the same rules are sub-
stantially applicable to both. 3 Bl.Comm. 261.
—Bill of interpleader. The name of a bill in equity
to obtain a settlement of a question of right to
money or other property adversely claimed, in
which the party filing the bill has no interest, al-
though it may be in his hands, by compelling such
adverse claimants to litigate the right or title be-
tween themselves, and relieve him from liability
or litigation. Republic Casualty Co. v. Fischmann,
99 N.J.Eq. 758, 134 A. 179, 180.
—Bill of peace. One which is filed when a person
has a right which may be controverted by various
persons, at different times, and by different ac-
tions. Smith v. Cretors, 164 N.W. 338, 340, 181
Iowa 189.
—Bill of review. One which is brought to have
a decree of the court reviewed, corrected, or re-
versed. Dodge v. Northrop, 85 Mich. 243, 48 N.W.
505. It is in the nature of a writ of error. Rubin
v. Midlinsky, 327 Ill. 89, 158 N.E. 395.
It is equitable procedure to procure explanation, altera-
tion, or reversal of final decree by court which rendered it.
People v. Sterling, 357 Ill. 354, 192 N.E. 229, 234.
The object of a "bill of review" and of a bill in nature
of a bill of review in the old chancery practice was to pro-
cure a reversal, modification, or explanation of a decree
in a former suit. Barz v. Sawyer, 159 Iowa 481, 141 N.W.
319, 321.
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—Cross-bill. One which is brought by a defendant
in a suit against a plaintiff in or against other de-
fendants in the same suit, or against both, touch-
Black's Law Dictionary Revised 4th Ed.-14
209
A "bill of review," or a bill in the nature of a bill of
review, are of three classes; those for error appearing on
the face of the record, those for newly discovered evidence,
and those for fraud impeaching the original transaction.
Moore v. Shook, 276 Ill. 47, 114 N.E. 592, 593. Such bills
are peculiar to courts of equity at common law. Satter-
white v. State, 149 Ark. 147, 231 S.W. 886, 887.
—Bill of revivor. One which is brought to con-
tinue a suit which has abated before its final con-
summation, as, for example, by death, or marriage
of a female plaintiff. Brooks v. Laurent, C.C.A.
Fla., 98 F. 647, 39 C.C.A. 201.
—Bill of revivor and supplement. One which is
a compound of a supplemental bill and bill of
revivor, and not only continues the suit, which
has abated by the death of the plaintiff, or the
like, but supplies any defects in the original bill
arising from subsequent events, so as to entitle
the party to relief on the whole merits of his case.
Westcott. Bowie v. Minter, 2 Ala. 411.
—Bill quia timet. A bill invoking the aid of
equity "because he fears," that is, because the
complainant apprehends an injury to his property
rights or interests, from the fault or neglect of
another. Bisp.Eq. § 568; 2 Story, Eq.Jur. § 826.
Such bills are entertained to guard against possible or
prospective injuries, and to preserve the means by which
existing rights may be protected from future or contingent
violations; differing from injunctions, in that the latter
correct past and present or imminent and certain injuries.
De Carli v. O'Brien, 41 P.2d 411, 416, 150 Or. 35, 97 A.L.R.
693.
—Bill to carry a decree into execution. One which
is filed when, from the neglect of parties or some
other cause, it may become impossible to carry a
decree into execution without the further decree of
the court. Hind, Ch.Pr. 68; Story, Eq.P1. § 42.
—Bill to perpetuate testimony. A bill in equity
filed in order to procure the testimony of witnesses
to be taken as to some matter not at the time be-
fore the courts, but which is likely at some future
time to be in litigation. Story, Eq.P1. (5th Ed.) §
300 et seq.
—Bill to quiet possession and title. Also called a
bill to remove a cloud on title (q. v.), and though
sometimes classed with bills quia timet or for the
cancellation of void instruments, they may be
resorted to in other cases when the complainant's
title is clear and there is a cloud to be removed;
Maguire v. City of Macomb, 293 Ill. 441, 127 N.E.
682, 686.
—Bill to suspend a decree. One brought to avoid
or suspend a decree under special circumstances.
—Bill to take testimony de bene esse. One which
is brought to take the testimony of witnesses to a
fact material to the prosecution of a suit at law
which is actually commenced, where there is good
cause to fear that the testimony may otherwise be
lost before the time of trial. 2 Story, Eq.Jur. §
1813, n.
ing the matters in question in the original bill.
Story, Eq.P1. § 389; Mitf.Eq.P1. 80.
It is a bill brought by a defendant against a plaintiff, or
other parties in a former bill depending, touching the
matter in question in that bill. It is usually brought eith-
er to obtain a necessary discovery of facts in aid of the de-
fense to the original bill, or to obtain full relief to all par-
ties in reference to the matters of the original bill. It is to
be treated as a mere auxiliary suit. Kidder v. Barr, 35 N.
H. 251; Blythe v. Hinckley, C.C.Cal., 84 F. 234. A species
of pleading, used for the purpose of obtaining a discovery
necessary to the defense, or to obtain some relief founded
on the collateral claims of the party defendant to the orig-
inal suit. Tison v. Tison, 14 Ga. 167. Also, if a bill of ex-
change or promissory note be given in consideration of
another bill or notice, it is called a "cross" or "counter"
bill or note. Landon v. Public Utilities Commission of
Kansas, D.C.Kan., 234 F. 152, 167.
—Supplemental bill. A bill to bring before the
court matters arising after the filing of the orig-
inal bill or not then known to complainant. Puget
Sound Power & Light Co. v. City of Seattle, C.C.
A.Wash., 5 F. (2d) 393. See Bill in nature of a
supplemental bill.
5. In legislation and constitutional law
The word means a draft of an act of the legis-
lature before it becomes a law; a proposed or
projected law. A draft of an act presented to the
legislature, but not enacted. Hubbard v. Lowe, D.
C.N.Y., 226 F. 135, 137. Also a special act passed
by a legislative body in the exercise of a quasi
judicial power. Scudder v. Smith, 331 Pa. 165,
200 A. 601, 604.
The word "bill" may mean the bill as it is first intro-
duced in one of the houses of the legislature, or it may re-
fer to it at any time in any of its stages until finally
passed. People v. Brady, 262 Ill. 578, 105 N.E. 1, 4. An
act is the appropriate term for it, after it has been acted
on by, and passed by, the legislature. Herbring v. Brown,
92 Or. 176, 180 P. 328, 330. Thus, bills of attainder, bills
of pains and penalties, are spoken of.
—Bill of attainder. See Attainder.
—Bill of indemnity. ' In English law. An act of
parliament, passed every session until 1869, but
discontinued in and after that year, as having
been rendered unnecessary by the passing of the
promissory oaths act, 1868, for the relief of those
who have unwittingly or unavoidably neglected to
take the necessary oaths, etc., required for the
purpose of qualifying them to hold their respective
offices. Wharton.
—Bill of pains and penalties. A special act of the
legislature which inflicts a punishment, less than
death, upon persons supposed to be guilty of
treason or felony, without any conviction in the
ordinary course of judicial proceedings.
It differs from a bill of attainder in this : that the pun-
ishment inflicted by the latter is death.
—Private bill. One dealing only with a matter of
private personal or local interest. Lowell, Gov.
of Eng. 266.
All legislative bills which have for their object some par-
ticular or private interest are so termed, as distinguished
from such as are for the benefit of the whole community,
which are thence termed "public bills." People v. Chau-
tauqua County, 43 N.Y. 17.
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—Private member's bill. One of a public nature
introduced by a private member;—distinguished
from a private bill, which is one dealing only with
a matter of private .personal or local interest.
Lowell, Gov. of Eng. 266.
6. A solemn and formal legislative declaration
of popular rights and liberties
Promulgated on certain extraordinary occa-
sions, as the famous Bill of Rights in English
history.
—Bill of rights. A formal and emphatic legislative
assertion and declaration of popular rights and
liberties usually promulgated upon a change of
government; particularly the statute 1 W. & M.
St. 2, c. 2. Also the summary of the rights and
liberties of the people, or of the principles of con-
stitutional law deemed essential and fundamental,
contained in many of the American state constitu-
tions. Hamill v. Hawks, C.C.A.Okl., 58 F.2d 41, 47.
That portion of Constitution guaranteeing rights
and privileges to the individual. Brown v. State,
219 Ind. 251, 37 N.E.2d 73, 77, 137 A.L.R. 679.
7. In the law of contracts
An obligation; a deed, whereby the obligor ac-
knowledges himself to owe to the obligee a cer-
tain sum of money or some other thing. It may
be indented or poll, and with or without a penalty.
— Bill obligatory. A bond absolute for the pay-
ment of money. It is called also a "single bill,"
and differs from a promissory note only in having
a seal. See Bill penal. Bank v. Greiner, 2 Serg.
& R. (Pa.) 115.
— Bill of debt. An ancient term including promis-
sory notes and bonds for the payment of money.
Com.Dig. "Merchant," F. 2.
—Bill penal. A written obligation by which a
debtor acknowledges himself indebted in a certain
sum, and binds himself for the payment thereof,
in a larger sum, called a "penalty." Bonds with
conditions have superseded such bills in modern
practice. They are sometimes called bills obliga-
tory, and are properly so called; but every bill
obligatory is not a bill penal. Comyns, Dig. Ob-
ligations, D; Cro.Car. 515. See 2 Ventr. 106, 198.
—Bill single. A written promise to pay to a per-
son or persons named a stated sum at a stated
time, without any condition. When under seal, as
is usually the case, it is sometimes called a "bill
obligatory," ( q. v.) It differs from a "bill penal,"
( q. v.) in that it expresses no penalty.
8. In commercial law
A written statement of the terms of a contract,
or specification of the items of a transaction or
of a demand; also a general name for any item
of indebtedness, whether receivable or payable.
Accounts for goods sold, services rendered, or
work done. Newman v. San Antonio Traction Co.,
Tex.Civ.App., 155 S.W. 688, 690.
As a verb, as generally and customarily used in
commercial transactions, "bill" is synonymous
with "charge" or "invoice." George M. Jones Co.
v. Canadian Nat. R. Co., D.C.Mich., 14 F.2d 852,
855.
—Bill-book. In mercantile law. A book in which
an account of bills of exchange and promissory
notes, whether payable or receivable, is stated.
—Bill-head. A printed form on which merchants
and traders make out their bills and render ac-
counts to their customers.
— Bill of lading. In common law. The written
evidence of a contract for the carriage and de-
livery of goods sent by sea for a certain freight.
Mason v. Lickbarrow, 1 H.B1. 359. A written
memorandum, given by the person in command of
a merchant vessel, acknowledging the receipt on
board the ship of certain specified goods, in good
order or "apparent good order," which he under-
takes, in consideration of the payment of freight,
to deliver in like good order (dangers of the
sea excepted) at a designated place to the con-
signee therein named or to his assigns. Devato v.
Barrels, D.C.N.Y., 20 Fed. 510.
The term is often applied to a similar receipt and under-
taking given by a carrier of goods by land. A bill of lad-
ing is an instrument in writing, signed by a carrier or his
agent, describing the freight so as to identify it, stating
the name of the consignor, the terms of the contract for
carriage, and agreeing or directing that the freight be de-
livered to the order or assigns of a specified person at a
specified place.  See Civil Code Cal. § 2126a; Aman v.
Dover & Southbound R. Co., 179 N. C. 310, 102 S.E. 392, 393;
Rudin v. King-Richardson Co., 143 N.E. 198, 201, 311. Ill.
513. It is receipt for goods, contract for their carriage, and
is documentary evidence of title to goods. Schwalb v. Erie
R. Co., 293 N.Y.S. 842, 846, 161 Misc. 743.
A clean bill of lading is one which contains
nothing in the margin qualifying the words in the
bill of lading itself. 61 Law T. 330; Creery v.
Holly, 14 Wend. (N.Y.) 26; Sayward v. Stevens, 3
Gray (Mass.) 97.
An order bill of lading is one in which it is
stated that goods are consigned to order of any
person named therein. F. L. Shaw Co. v. Cole-
man, Tex.Civ.App., 236 S.W. 178, 180.
A straight bill of lading is one in which it is
stated that goods are consigned to a specified per-
son. Atlantic Coast Line R. Co. v. Roe, 91 Fla.
762, 109 So. 205, 207.
A through bill of lading is one by, which a rail-
road contracts to transport over its own line for a
certain distance carloads of merchandise or stock,
there to deliver the same to its connecting lines to
be transported to the place of destination at a
fixed rate per carload for the whole distance.
Gulf, C. & S. F. R. Co. v. Vaughn, 4 Willson, Ct.
App.Tex. § 182, 16 S.W. 775.
— Bill of parcels. A statement sent to the buyer
of goods, along with the goods, exhibiting in de-
tail the items composing the parcel and their sev-
eral prices, to enable him to detect any mistake or
omission; an invoice.
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—Bill of sale. In contracts. A written agreement,
formerly limited to one under seal, by which one
person assigns or transfers his right to or interest
in goods and personal chattels to another. Wilson.
v. Voche, 172 S.E. 672, 48 Ga.App. 173. An instru-
ment by which, in particular, the property in
ships and vessels is conveyed. Young v. Stone,
70 N.Y.S. 558, 61 App.Div. 364. See Grand bill of
sale, infra.
—Bill payable. In a merchant's accounts, all bills
which he has accepted, and promissory notes which
he has made, are called "bills payable," and are
entered in a ledger account under that name, and
recorded in a book bearing the same title. See
West Virginia Pulp & Paper Co. v. Karnes, 137 Va.
714, 120 S.E. 321, 322.
—Bill receivable. In a merchant's accounts, all
notes, drafts, checks, etc., payable to him, or of
which he is to receive the proceeds at a future
date, are called "bills receivable," and are entered
in a ledger-account under that name, and also
noted in a book bearing the same title. State v.
Robinson, 57 Md. 501. Miami Coal Co. v. Fox, 203
Ind. 99, 176 N.E. 11, 16, 79 A.L.R. 333.
— Bill rendered. A bill of items rendered by a
creditor to his debtor; an "account rendered," as
distinguished from "an account stated." Hill v.
Hatch, 11 Me. 455.
— Grand bill of sale. In English law. The name
of an instrument used for the transfer of a ship
while she is at sea. An expression which is under-
stood to refer to the instrument whereby a ship
was originally transferred from the builder to the
owner, or first purchaser. 3 Kent, Comm. 133.
9. In the law of negotiable instruments
A promissory obligation for the payment of
money.
Standing alone or without qualifying words, the
term is understood to mean a bank note, United
States treasury note, or other piece of paper cir-
culating as money. Green v. State, 28 Tex.App.
493, 13 S.W. 785.
—Bill of credit. In constitutional law. A bill or
promissory note issued by the government of a
state or nation, upon its faith and credit, designed
to circulate in the community as money, and re-
deemable at a future day. Hale v. Huston, 44 Ala.
138, 4 Am.Rep. 124. In mercantile law. A license
or authority given in writing from one person to
another, very common among merchants, bank-
ers, and those who travel, empowering a person to
receive or take up money of their correspondents
abroad.
—Bill of exchange. A written order from A. to
B., directing B. to pay to C. a certain sum of mon-
ey therein named. Byles, Bills, 1. An open ( that
is, unsealed) letter addressed by one person to
another directing him, in effect, to pay, absolutely
and at all events, a certain sum of money therein
named, to a third person, or to any other to whom
that third person may order it to be paid, or it
may be payable to bearer or to the drawer him-
self. 1 Daniel, Neg.Inst. 27.
An unconditional order in writing addressed by one per-
son to another, signed by the person giving it, requiring
the person to whom it is addressed to pay on demand or at
a fixed or determinable future time a sum certain in money
to order or to bearer. Clayton Town-Site Co. v. Clayton
Drug Co., 147 P. 460, 20 N.M. 185; Smythe v. Sanders, 101
So. 435, 436, 136 Misc. 382; Sometimes called a "trade ac-
ceptance." Jones v. Revere Preserving Co., 247 Mass. 225,
142 N.E. 70, 71.
A "check" differs from a "bill of exchange" in that it is
always drawn on a deposit whereas a bill is not. Wilson
v. Buchenau, D.C.Cal., 43 F.Supp. 272, 275.
—Domestic bill of exchange. A bill of exchange
drawn on a person residing in the same state with
the drawer; or dated at a place in the state, and
drawn on a person living within the state. It is
the residence of the drawer and drawee which
must determine whether a bill is domestic or
foreign. Ragsdale v. Franklin, 25 Miss. 143. See,
also, Inland bill of exchange.
—Foreign bill of exchange. A bill of exchange
drawn in one state or country, upon a foreign state
or country. See Story, Bills, § 22; 3 Kent, Comm.
94, note.
A bill of exchange drawn in one country upon another
country not governed by the same homogeneous laws, or
not governed throughout by the same municipal laws. A
bill of exchange drawn in one of the United States upor
a person residing in another state Is a foreign bill.
—Inland bill of exchange. One of which the
drawer and drawee are residents of the same state
or country. Miller v. American Gold Mining Co.,
3 Alaska, 1. See Domestic bill of exchange.
10. In maritime law
The term is applied to contracts of various
sorts, but chiefly to bills of lading and to bills of
adventure.
—Bill of adventure. A written certificate by a
merchant or the master or owner of a ship, to the
effect that the property and risk in goods shipped
on the vessel in his own name belong to another
person, to whom he is accountable for the proceeds
alone.
—Bill of gross adventure. In French maritime
law. Any written instrument which contains a
contract of bottomry, respondentia, or any other
kind of maritime loan. There is no corresponding
English term. Hall, Marit. Loans, 182, n.
—Bill of health. An official certificate, given by
the authorities of a port from which a vessel
clears, to the master of the ship, showing the state
of the port, as respects the public health, at the
time of sailing, and exhibited to the authorities of
the port which the vessel next makes, in token
that she does not bring disease.
If the bill alleges that no contagious or infectious disease
existed, it is called a "clean" bill; if it admits that one
was suspected or anticipated, or that one actually pre-
vailed, it is called a "touched" or a "foul" bill.
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BILL
11. In revenue law and procedure
The term is given to various documents filed in
or issuing from a custom house, principally of the
sorts described below.
— Bill of entry. An account of the goods entered
at the custom-house, both incoming and outgoing.
It must state the name of the merchant exporting
or importing, the quantity and species of mer-
chandise, and whither transported, and whence.
— Bill of sight. When an importer of goods is
ignorant of their exact quantity or quality, so that
he cannot make a perfect entry of them, he may
give to the customs officer a written description
of them, according to the best of his information
and belief. This is called a "bill of sight."
—Bill of store. In English law. A kind of license
granted at the custom-house to merchants, to carry
such stores and provisions as are necessary for
their voyage, custom free. Jacob.
—Bill of sufferance. In English law. A license
granted at the custom-house to a merchant, to
suffer him to trade from one English port to an-
other, without paying custom. Cowell.
12. In criminal law
A bill of indictment, see infra.
—Bill of appeal. An ancient, but now abolished,
method of criminal prosecution. See Battel.
—Bill of indictment. A formal written document
accusing a person or persons named of having
committed a felony or misdemeanor, lawfully laid
before a grand jury for their action upon it. State
v. Ray, Rice (S.C.) 4, 33 Am.Dec. 90. See Present-
ment.
If the grand jury decide that a trial ought to be had,
they indorse on it "a true bill;" if otherwise, "not a true
bill" or "not found."
13. In common-law practice
An itemized statement or specification of par-
ticular details, especially items of cost or charge. .
of costs. A certified, itemized statement of
the amount of costs in an action or suit. Doe v.
Thompson, 22 N.H. 219.
By the English usage, this term is applied to the state-
ment of the charges and disbursements of an attorney or
solicitor incurred in the conduct of his client's business,
and which might be taxed upon application, even though
not incurred in any suit. Thus, conveyancing costs might
be taxed. Wharton.
—Bill of particulars. In practice. A written state-
ment or specification of the particulars of the de-
mand for which an action at law is brought, or of
a defendant's set-off against such demand, (in-
cluding dates, sums, and items in detail,) furnished
by one of the parties to the other, either' volun-
tarily or in compliance with a judge's order for
that purpose. 1 Tidd, Pr. 596-600; 2 Archb.Pr.
221; Ferguson v. Ashbell, 53 Tex. 250; Baldwin v.
Gregg, 13 Metc. (Mass.) 255.
It is designed to aid the defendant in interposing the
proper answer and in preparing for trial, by giving him de-
tailed information regarding the cause of action stated
in the complaint. Wetmore v. Goodwin Film & Camera Co.,
(D.C.) 226 F. 352, 353. It is neither a pleading nor proof
of the facts therein contained, Nilson v. Ebey Land Co., 90
Wash. 295, 155 P. 1036, and is not for the purpose of dis-
covering evidence, nor to find what plaintiff knows, but
what he claims, Intermountain Ass'n of Credit Men v. Mil-
waukee Mechanics' Ins. Co., 44 Idaho 491, 258 P. 362, 363.
A bill of particulars is not designed to uphold an insuffi-
cient indictment, but to give accused fair notice of what he
is called on to defend. Clary v. Commonwealth, 163 Ky.
48, 173 S. W. 171, 173. People v. Bain, 359 Ill. 455, 195 N.E.
42.
14. In English law
A draft of a patent for a charter, commission,
dignity, office, or appointment.
Such a bill is drawn up in the attorney general's patent
bill office, is submitted by a secretary of state for the
King's signature, when it is called the "King's bill," and
is then countersigned by the secretary of state and sealed
by the privy seal, and then the patent is prepared and
sealed. Sweet.
For Exchequer Bills, see that title.
BILL OF MORTALITY. A written statement or
account of the number of deaths which have oc-
curred in a certain district within a given time.
BILLA. L. Lat. A bill; an original bill.
BILLA CASSETUR, or QUOD BILLA CASSETUR.
(That the bill be quashed.) In practice. The
form of the judgment rendered for a defendant on
a plea in abatement, where the proceeding is by
bill; that is, where the suit is commenced by
capias, and not by original writ. 2 Archb.Pr.K.B.
4.
BILLA EXCAMBIL A bill of exchange.
BILLA EXONERATION'S. A bill of lading.
BILLA VERA. (A true bill.) In old practice.
The indorsement anciently made on a bill of in-
dictment by a grand jury, when they found it
sufficiently sustained by evidence. 4 Bl.Comm.
306.
BILLBOARD. An erection annexed to the land in
the nature of a fence for the purpose of posting
advertising bills and posters. Randall v. Atlanta
Advertising Service, 159 Ga. 217, 125 S.E. 462,
463; Cochrane v. McDermott Advertising Agency,
6 Ala.App. 121, 60 So. 421, 422.
BILLET. A soldier's quarters in a civilian's
house; or the ticket which authorizes him to oc-
cupy them.
In French law. A bill or promissory note.
Billet a ordre, a bill payable to order. Billet a
vue, a bill payable at sight. Billet de com-
plaisance, an accommodation bill.  Billet de
change, an engagement to give, at a future time,
a bill of exchange, which the party is not at the
time prepared to give. Story, Bills, § 2, n.
BILLETA. In old English law. A bill or petition
exhibited in parliament. Cowell.
BILLIARD TABLES. This term includes "pool
tables" as used in statutes, since "pool tables" are
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BISSEXTILE
billiard tables with pockets. Village of Atwood V.
Otter, 296 Ill. 70, 129 N.E. 573, 578.
BILLY. A small bludgeon that may be carried
in the pocket; a club; especially, a policeman's
dub. Cent. Dict.; Webster, New Intl. Dict.
RI-METALLIC. Pertaining to, or consisting of,
two metals used as money at a fixed relative
value.
BI-METALLISM. The legalized use of two metals
in the currency of a country at a fixed relative
value.
BIND. To obligate; to bring or place under def-
inite duties or legal obligations, particularly by a
bond or covenant; to affect one in a constraining
or compulsory manner with a contract or a judg-
ment. Stone v. Bradbury, 14 Me. 193.
So long as a contract, an adjudication, or a legal rela-
tion remains in force and virtue, and continues to impose
duties or obligations, it is said to be "binding." A man is
bound by his contract or promise, by a judgment or dt,-
cree against him, by his bond or covenpnt, by an estoppel,
etc.
BIND OUT. To place one under a legal obligation
to serve another; as to bind out an apprentice.
BINDER. The memorandum of an agreement for
insurance, intended to give temporary protection
pending investigation of the risk and issuance of a
formal policy. Seiderman v. Herman Perla Inc.,
268 N.Y. 188, 197 N.E. 190, 191.
A verbal contract of insurance in prsenti, of which the
insurance agent makes a memorandum, temporary in its
nature, Norwich Union Fire Ins. Society v. Dalton, Tex.
Civ.App., 175 S.W. 459, 460; thus constituting a short
method of issuing a temporary policy to continue until
execution of the formal one, Sherri v. National Surety Co.,
243 N.Y. 266, 153 N.E. 70, 71. Carew, Shaw & Bernaseoni
v. General Casualty Co. of America, 189 Wash. 329, 65 P.2d
689, 695.
A "binder" as used in marine insurance is an
application for insurance made on behalf of the
proposed insured and approved by the insurer or
his agent. Muller v. Globe & Rutgers Fire Ins.
Co. of City of New York, C.C.A.N.Y., 246 F. 759,
-760.
BINDING INSTRUCTION. One in which jury is
told if they find certain conditions to be true to
find for plaintiff or defendant, as case might be.
Scott-Burr Stores Corporation v. Foster, 197 Ark.
232, 122 S.W.2d 165, 169.
BINDING OVER. The act by which a court or
magistrate requires a person to enter into a recog-
nizance or furnish bail to appear for trial, to keep
the peace, to attend as a witness, etc.
BINDING RECEIPT OR SLIP. Is a limited ac-
ceptance of an application for insurance given by
an authorized agent pending the ascertainment of
the company's willingness to assume the burden
of the proposed risk, the effect of which is to
protect the applicant until the company acts upon
the application, and, if it declines to accept the
burden, the binding effect of the slip ceases eo
instante. Hanauer v. Fire Ass'n . of Philadelphia,
83 W.Va. 401, 98 S.E. 441, 443; Seiderman v. Her-
man Perla, Inc., 268 N.Y. 188, 197 N.E. 190, 191.
BINOCULAR VISION. The vision of the two eyes
acting together, used in determining depth, width,
distance, and comparative placing of different ob-
jects; distinguished from "field vision," meaning
the general vision used in catching in sight, and
following and locating objects. Gigleo v. Dorfman
& Kimiay sky, 106 Conn. 401, 138 A. 448, 450.
BIPARTITE. Consisting of, or divisible into, two
parts. A term in conveyancing descriptive of an
instrument in two parts, and executed by both
parties.
BIRRETUM, BIRRETUS. A cap or coif used
formerly in England by judges and serjeants at
law. Spelman.
BIRTH. The act of being born or wholly brought
into separate existence. Wallace v. State, 10 Tex.
App. 270.
BIS. Lat. Twice.
BIS DA.T QUI CITO DAT. He pays twice who
pays promptly.
BIS IDEM EXIGI BONA FIDES NON PATITUR;
ET IN SATISFACTIONIBUS NON PERMXTTI-
TUR AMPLIUS FIERY QUAM SEMEL FACTUM
EST. Good faith does not suffer the same thing
to be demanded twice ; and in making satisfac-
tion [for a debt or demand] it is not allowed to
be done more than once. 9 Coke, 53.
BISAILE (also BESAILE, BESAYEL, BESAYEL,
BESAYLE). The father of one's grandfather or
grandmother.
BISANTIUM, BESANTINE, BEZANT. An ancient
coin, first issued at Constantinople; it was of two
sorts,--gold, equivalent to a ducat, valued at 9s.
6d.; and silver, computed at 2s. They were both
current in England. Wharton.
RI-SCOT. In old Engish law. A fine imposed
for not repairing banks, ditches, and causeways.
BISHOP. In English law. An ecclesiastical digni-
tary, being the chief of the clergy within his
diocese, subject to the archbishop of the province
in which his diocese is situated. Most of the
bishops are also members of the House of Lords.
BISHOP'S COURT. In English law. An ecclesi-
astical court, held in the cathedral of each diocese,
the judge whereof is the bishop's chancellor, who
judges by the civil canon law; and, if the diocese
be large, he has his commissaries in remote parts,
who hold consistory courts, for matters limited to
them by their commission.
BISHOPRIC. In ecclesiastical law. The diocese
of a bishop, or the circuit in which he has juris-
diction; the office of a bishop. 1 Bl.Comm. 377-
382.
BISSEXTILE. The day which is added every
fourth year to the month of February, in order
to make the year agree with the course of the sun.
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BISSEXTILE
By statute 21 Hen. III., the 28th and 29th of
February count together as one day. This statute
is in force in some of the United States. Porter v.
Holloway, 43 Ind. 35; Harker v. Addis, 4 Pa. 515.
BITING RULE. When first taker of conveyed
property under writing submitted for construc-
tion is initially conveyed a fee title, it is then in-
competent and invalid to modify, qualify, or reduce
thereafter the apparent fee title of the first taker
so as to reduce it to a life estate, and any gift
over after death of first taker is void. Hanks v.
McDanell, 210 S.W.2d 784, 786, 307 Ky. 243, 17
A.L.R.2d 1.
BITULITHIC. Designating a kind of paving the
main body of which consists of broken stone
cemented together with bitumen or asphalt. Wash-
burn v. Board of Com'rs of Shawnee County, 103
Kan. 169, 172 P. 997, 998. Bituminous macadam
means bitulithic pavement. Washburn v. Board
of Com'rs of Shawnee County, 103 Kan. 169, 172
P. 997, 998. See Bitumen.
BITUMEN. Mineral pitch; black, tarry substance
used in cements, in construction of pavements,
etc., and by extension, the term includes any one
of natural hydrocarbons, including hard, solid,
brittle varieties called asphalt, semi-solid maitha
and mineral tars, oily petroleums, and light volatile
naphthas. Western Willite Co. v. Trinidad Asphalt
Mfg. Co., C.C.A.Mo., 16 .F.2d 446, 448.
BITUMINOUS COAL. Bituminous coal is much
less hard than anthracite; it is dusty and dirty
and is commonly termed "soft coal." Bituminous
coal burns with more or less smoke while anthra-
cite coal burns with practically no smoke. As the
fuel ratio of bituminous coal rises the coal is more
soft; as the fuel ratio of anthracite coal rises the
coal is more hard. Commonwealth v. Hudson Coal
Co., 287 Pa. 64, 134 A. 413, 414. See Anthracite
coal.
BITUMINOUS MACADAM. Bitulithic pavement.
Washburn v. Board of Com'rs of Shawnee County,
103 Kan. 169, 172 P. 997, 998. See Bitulithic.
BLACK ACRE and WHITE ACRE. Fictitious
names used by the old writers to distinguish one
parcel of land from another, to avoid ambiguity,
as well as the inconvenience of a fuller description.
BLACK ACT. The statute 9 Geo. I. c. 22, so called
because it was occasioned by the outrages commit-
ted by persons with their faces blacked or other-
wise disguised, who appeared in Epping Forest,
near Waltham, in Essex, and destroyed the deer
there, and committed other offenses. Repealed by
7 & 8 Geo. IV, c. 27.
BLACK ACTS. Old Scotch statutes passed in the
reigns of the Stuarts and down to the year 1586 or
1587, so called because printed in black letter.
Bell.
BLACK BOOK OF HEREFORD. In English law,
An old record frequently referred to by Cowell and
other early writers.
BLACK BOOK OF THE ADMIRALTY. A book of
the highest authority in admiralty matters, gen-
erally supposed to have been compiled during the
reign of Edward III. with additions of a later
date. It contains the laws of Oleron, a view of
crimes and offenses cognizable in the admiralty,
and many other matters. See De Lovio v. Boit, 2
Gall. 404, Fed.Cas.No.3,776.
BLACK BOOK OF THE EXCHEQUER. The
name of an ancient book kept in the English
exchequer, containing a collection of treaties, con-
ventions, charters, etc.
BLACK CAP. The head-dress worn by the judge
in pronouncing the sentence of death. It is part
of the judicial full dress, and is worn by the judges
on occasions of especial state. Wharton.
BLACK CODE. A name given collectively to the
body of laws, statutes, and rules in force in various
southern states prior to 1865, which regulated the
institution of slavery, and particularly those for-
bidding their reception at public inns and on public
conveyances. Civil Rights Cases, 3 S.Ct. 18, 109
U.S. 3, 27 L.Ed. 835.
BLACK GAME. In English law. Heath fowl, in
contradistinction to red game, as grouse.
BLACK LIQUOR. A term used in the paper pulp
industry. It denotes a residual liquor coming
from the digesters in which wood chips are cook-
ed. Babcock & Wilcox Co. v. North Carolina Pulp
Co., D.C.Del., 35 F.Supp. 215, 221.
BLACK MARIA. A closed wagon or van in which
prisoners are carried to and from the jail, or be-
tween the court and the jail.
BLACK MAT CABARETTA. A cross between a
goatskin and a skin of some other animal. J. H.
Stockamore Leather Co. v. Duane Shoe Co., 187
N.Y.S. 258, 195 App.Div. 947.
BLACK MUSLIM. An organization of American
Negroes, founded in Detroit in 1930 by an Ameri-
can Negro calling himself Mohammad Elijah. To
the traditional Koran the founders added the doc-
trine of Black Supremacy and proclaimed the
desirability of maintaining ( or regaining) the
purity of the black race. 62 Col.L.Rev. 1488 (1962)
75 Harv.L.Rev. 837 (1962) ; State v. Cubbage (Del.),
210 A.2d 555 (1965).
BLACK RENTS. In old English law. Rents re-
served in work, grain, provisions, or baser money
than silver, in contradistinction to those which
were reserved in white money or silver, which
were termed "white rents," (reditus albi,) or
blanch farms. Tomlins; Whishaw. See Black-
mail.
BLACK—ROD, GENTLEMAN USHER OF. In Eng-
land, the title of a chief officer of the king, deriv-
ing his name from the Black Rod of office, on the
top of which reposes a golden lion, which he
carries. During the session of Parliament he at-
tends on the peers, summons the Commons to the
House of Lords; and to his custody all peers im-
peached for any crime or contempt are first com-
mitted.
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BLANK
BLACK WARD. A subvassal, who held ward of
the king's vassal.
BLACKJACK. A short bludgeon consisting of a
heavy head, as of metal, on an elastic shaft or
with a flexible handle; a bludgeon-like weapon
consisting of a lead slug attached to a leather
thong; a small leather-covered club or billy
weighted at the head and having an elastic shaft.
5 Words and Phrases, Perm. Ed.
As a card game, another name for vingt-et-un
(twenty-one) ; also; a variety of hearts in which
the jack of spades counts as ten hearts. Webster,
New Intl. Dict.
BLACKLEG. A person who gets his living by
frequenting race-courses and places where games
of chance are played, getting the best odds, and
giving the least he can, but not necessarily cheat-
ing. That is not indictable either by statute or at
'common law. Barnett v. Allen, 3 Hurl. & N. 379.
In a later case it has been thought that "blackleg" ordi-
narily means a swindler, but does not mean a "scab" or
strike breaker, and that its use may be libelous per se.
United Mine Workers of America v. Cromer, 159 Ky. 605,
167 S. W. 891, 892.
BLACKLIST. A list of persons marked out for
special avoidance, antagonism, or enmity on the
part of those who prepare the list or those among
whom it is intended to circulate; as where a
trades-union "blacklists" workmen who refuse to
conform to its rules, or where a list of insolvent or
untrustworthy persons is published by a commer-
cial agency or mercantile association. Quoted and
relied on in Dick v. Northern Pac. Ry. Co., 86
Wash. 211, 150 P. 8, 12, Ann.Cas.1917A, 638, holding
that this word is a generic term having no such
well-defined meaning in law as to make its use in
a pleading a definite charge of any specific mis-
conduct against a person so charged. Cleary v.
Great Northern Ry. Co., 147 Minn. 403, 180 N.W.
545, 546; Masters v. Lee, 39 Neb. 574, 58 N.W.
222; Mattison v. Railway Co., 2 Ohio N.P. 279.
BLACKMAIL. In one of its original meanings,
this term denoted a tribute paid by English dwell-
ers along the Scottish border to influential chief-
tains' of Scotland, as a condition of securing im-
munity from raids of marauders and border
thieves.
Also, rents payable in cattle, grain, work, and
the like. Such rents were called "blackmail,"
(reditus nigri,) in distinction from white rents,
(blanche firmes,) which were rents paid in silver.
See Black rents.
The extortion of money by threats or overtures
towards criminal prosecution or the destruction of
a man's reputation or social standing.
In common parlance, the term is equivalent to and syn-
onymous with, "extortion,"—the exaction of money, either
for the performance of a duty, the prevention of an injury,
or the exercise of an influence. It supposes the service to
be unlawful, and the payment involuntary. Not infre-
quently it is extorted by threats, or by operating upon the
fears or the credulity, or by promises to conceal, or offers
to expose, the weaknesses, the follies, or the crimes of the
victim. Mitchell v. Sharon, C.C.Cal., 51 F. 424; In re
Mills, 104 Wash. 278, 176 P. 556, 562. "Blackmail" has a
broader meaning than the New York statutory crime of
blackmail, and denotes extortion in any mode by means
of intimidation, as the extortion of money by threats of
accusation or exposure, or of unfavorable criticism in the
press. Guenther v. Ridgway Co., 156 N.Y.S. 534, 535, 170
App. Div. 725.
BLACKSMITH SHOP. A place to which the peo-
ple of a community resort for the purpose of hav-
ing machinery and tools repaired and iron work
done. State v. Shumaker, 103 Kan. 741, 175 P.
978, 979.
BLADA. In old English law. Growing crops of
grain of any kind. Spelman. All manner of an-
nual grain. Cowell. Harvested grain. Bract.
217b; Reg.Orig. 94b, 95.
BLADARIUS. In old English law. A cornmonger;
meal-man or corn-chandler; a bladier, or engrosser
of corn or grain. Blount.
BLANC SEIGN. In Louisiana, a paper signed at
the bottom by him who intends to bind himself,
give acquittance, or compromise, at the discretion
of the person whom he intrusts with such blanc
seign, giving him power to fill it with what he
may think proper, according to agreement. Mus-
son v. U. S. Bank, 6 Mart.O.S. (La.) 718.
BLANCH HOLDING. An ancient tenure of the
law of Scotland, the duty payable being trifling,
as a penny or a pepper-corn, etc., if required;
similar to free and common socage.
BLANCHE FIRME. White rent; a rent reserved,
payable in silver.
BLANCUS. In old law and practice. White;
plain; smooth; blank.
BLANK. A space left unfilled in a written docu-
ment, in which one or more words or marks are
to be inserted to complete the sense. Angle v.
Insurance Co., 92 U.S. 337, 23 L.Ed. 556.
Also a skeleton or printed form for any legal
document, in which the necessary and invariable
words are printed in their proper order, with blank
spaces left for the insertion of such names, dates,
figures, additional clauses, etc., as may be neces-
sary to adapt the instrument to the particular case
and to the design of the party using it.
BLANK ACCEPTANCE. An acceptance of a bill
of exchange written on the paper before the bill
is made, and delivered by the acceptor.
BLANK BAR. Also called the "common bar."
The name of a plea in bar which in an action of
trespass is put in to oblige the plaintiff to assign
the certain place where the trespass was commit-
ted. It was most in practice in the common bench.
See Cro.Jac. 594.
BLANK BONDS. Scotch securities, in which the
creditor's name was left blank, and which passed
by mere delivery, the bearer being at liberty to put
in his name and sue for payment. Declared void
by Act 1696, c. 25.
BLANK INDORSEMENT. The indorsement of a
bill of exchange or promissory note, by merely
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BLANKET
writing the name of the indorser, without mention-
ing any person to whom the bill or note is to be
paid; called "blank," because a blank or space is
left over it for the insertion of the name of the
indorsee, or of any subsequent holder. Otherwise
called an indorsement "in blank." 3 Kent, Comm.
89; Story, Prom. Notes, § 138.
BLANKET. In tariff acts: A heavy cover for a
bed or a horse, with a thick, soft nap on both sides.
Riley & Co. v. U. S., 8 Ct.Cust.App. 116, 118.
BLANKET POLICY. See Insurance—Blanket
Policy.
BLANKS. A kind of white money, (value 8d.,)
coined by Henry V. in those parts of France which
were then subject to England; forbidden to be
current in that realm by 2 Hen. VI. c. 9. Wharton.
BLASARIUS. An incendiary.
BLASPHEMY.
In English Law
Blasphemy is the offense of speaking matter
relating to God, Jesus Christ, the Bible, or the
Book of Common Prayer, intended to wound the
feelings of mankind or to excite contempt and
hatred against the church by law established, or
to promote immorality. Sweet.
In American Law
Any oral or written reproach maliciously cast
upon God, His name, attributes, or religion. Com.
v. Kneeland, 20 Pick. (Mass.) 213; Young v. State,
10 Lea (Tenn.) 165; People v. Ruggles, 8 Johns.
(N.Y.) 290, 5 Am.Dec. 335; Updegraph v. Corn.,
11 Serg. & R. (Pa.) 406.
In general, blasphemy may be described as consisting in
speaking evil of the Deity with an impious purpose to
derogate from the divine majesty, and to alienate the
minds of others from the love and reverence of God.
It is purposely using words concerning God calculated
and designed to impair and destroy the reverence, respect,
and confidence due to Him as the intelligent creator, gov-
ernor, and judge of the world. It embraces the idea of
detraction, when used towards the Supreme Being, as
"calumny" usually carries the same idea when applied to
an individual. It is a willful and malicious attempt to
lessen men's reverence of God by denying His existence, or
His attributes as an intelligent creator, governor, and
judge of men, and to prevent their having confidence in
Him as such. Corn. v. Kneeland, 20 Pick. (Mass.) 211, 212.
The use of this word is, in modern law, exclusively con-
fined to sacred subjects; but blasphemia and blasphemare
were anciently used to signify the reviling by one person
of another. Nov. 77, c. 1, § 1; Spelman.
BLASTING. Practice or occupation of rending
heavy masses, especially of rock, by means of ex-
plosives, as in oil well drilling, quarrying, etc.
Seismic Explorations v. Dobray, Tex.Civ.App., 169
S.W.2d 739, 742.
BLEACHERS. A relatively low-priced seat for a
spectator at sports or games, or the section or
structure ( originally roofless) containing such
seats. Lowden v. Jefferson County Excise Board,
122 P.2d 991, 992, 190 Okl. 276; Zeitz v. Coopers-
town Baseball Centennial, N.Y.Sup., 29 N.Y.S.2d 56,
57.
BLEES. In old English law. Grain; particularly
corn.
BLENCH, BLENCH HOLDING. See Blanch Hold-
ing.
BLENDED FUND. In England, where a testator
directs his real and personal estate to be sold, and
disposes of the proceeds as forming one aggregate,
this is called a "blended fund."
BLENDED PRICE. As applied to milk, a price
paid to producers based upon a pool average
weighted by the volume of milk disposed of, ac-
cording to different types of utilization. Queens-
boro Farm Products v. State, 24 N.Y.S.2d 413, 417,
175 Misc. 574.
BLETA. An old name for peat or combustible
earth dug up and dried for burning. Wharton.
BLIND. The condition of one who is deprived of
the faculty of seeing.
A voter is not "blind" within the meaning of Ky. St. §
1475, authorizing clerk to mark ballot for blind person, if
he has left his spectacles at home, but a person so devoid
of sight that he cannot see pencil mark made by clerk is
"blind." Smith v. Jones, 221 Ky. 546, 299 S.W. 170, 171.
One who by accident lost all vision except enough to enable
him to recognize a form without distinguishing its out-
lines is "blind" within the Workmen's Compensation Act.
Industrial Commission of Colorado v. Johnson, 64 Colo. 461,
172 P. 422, 423.
BLIND CAR. On railroads, one on which there
is neither steps nor platform at the ends. Helm
v. Hines, 109 Kan. 48, 196 P. 426.
BLIND CORNER. One where the building ex-
tends to the property line. Mobile Light & R. Co.
v. Gadik, 211 Ala. 582, 100 So. 837, 838.
BLIND NAILING. "Blind nailing," in a contract
relating to the interior finish of a house, means
driving the nails in with a nail set, and conceal-
ing them with putty and paint. Sterling Engi-
neering and Construction Co. v. Berg, 161 Wis.
280, 152 N.W. 851, 852.
BLIND TIGER. A place where intoxicants are
sold on the sly, and contrary to the law. Town
of Ruston v. Fountain, 118 La. 53, 42 So. 644; City
of Shreveport v. Maroun, 134 La. 490, 64 So. 388,
389. A "tippling-house." Calhoun v. Bell, 136 La.
149, 66 So. 761, 762, Ann.Cas.1916D, 1165.
BLIND WAGON. Such as one used for moving
furniture and the like, is one without the name or
address of the owner of it thereon. Mike Berni-
ger Moving Co. v. O'Brien, Mo.App., 240 S.W.
481, 483.
BLINDCRAFT. A natural descriptive term iden-
tifying in a broad sense work of the blind, convey-
ing the idea of the blind performing deftly at
any of the various skills or trades to which their
talents are applied or leaving the suggestion of
dexterity and skill of the blind as well as their
handiwork itself. San Francisco Ass'n for Blind
v. Industrial Aid for Blind, D.C.Mo., 58 F.Supp.
995, 1001.
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BLOOD
BLINKS. In old English law. Boughs broken
down from trees and thrown in a way where deer
are likely to pass. Jacob.
BLOCK. A square or portion of a city or town
inclosed by streets, whether partially or wholly oc-
cupied by buildings or containing only vacant lots.
Also used synonymous with "square." Weeks v.
Hetland, 202 N.W. 807, 812, 813, 52 N.D. 351. The
platted portion of a city surrounded by streets.
Cravens v. Putnam, 101 Kan. 161, 165 P. 801, 802.
The term need not, however, be limited to blocks
platted as such, but may mean an area bounded
on all sides by streets or avenues. St. Louis-San
Francisco R. Co. v. City of Tulsa, Okl., C.C.A.Okl.,
15 F.2d 960, 963. It must be surrounded on at
least three sides by streets, which must be marked
on the ground, and not simply indicated as such
on a plat. Seested v. Dickey, 318 Mo. 192, 300
S.W. 1088, 1098.
BLOCK BOOK SYSTEM. An abstract of property
assessed for taxes and also of property unrendered
and of which owners were unknown, together
with maps and plats. Southern Surety Co. v. Laf-
ferty, Tex.Civ.App., 43 S.W.2d 460, 463.
BLOCK-BOOKING. The practice of licensing or
offering for license one motion picture feature
or group of features on condition that exhibitor
will also license another feature or group of fea-
tures released by distributor during a given period.
U. S. v. Paramount Pictures, N.Y., 68 S.Ct. 915, 928,
334 U.S. 131, 92 L.Ed. 1260.
BLOCK-HOLER. One who follows up the miner
to blast or throw down large rocks left in the proc-
ess of mining in a "stope." Mesich v. Tamarack
Mining Co., 184 Mich. 363, 151 N.W. 564, 566.
BLOCH OF SURVEYS. In Pennsylvania land
law. Any considerable body of contiguous tracts
surveyed in the name of the same warrantee, with-
out regard to the manner in which they were orig-
inally located; a body of contiguous tracts located
by exterior lines, but not separated from each oth-
er by interior lines. Morrison v. Seaman, 183 Pa.
74, 38 A. 710.
BLOCK TO BLOCK RULE. The "block to block
rule" for assessing the benefits for the opening of
a new street is, the assessment against the lots
in each block of the cost of acquiring the lands in
that block. In re St. Raymona Ave. in City of
New York, 162 N.Y.S. 185, 188, 175 App.Div. 518.
BLOCKADE. In international law. A marine In-
vestment or beleaguering of a town or harbor. A
sort of circumvallation round a place by which
all foreign connection and correspondence is, as
far as human power can effect it, to be cut off. 1
C.Rob.Adm. 151.
It is not necessary, however, that the place should be
invested by land, as well as by sea, in order to constitute
a legal blockade; and, if a place be blockaded by sea only,
it is no violation of belligerent rights for the neutral to
carry on commerce with It by inland communications. 1
Kent, Comm. 147.
The actual investment of a port or place by a hostile
force fully competent, under ordinary circumstances, to
cut off all communication therewith, so arranged or dis-
posed as to be able to apply its force to every point of
practicable access or approach to the port or place so
invested. The Olinde Rodrigues, D.C.S.C., 91 Fed. 274;
Id., 19 S.Ct. 851, 174 U.S. 510, 43 L.Ed. 1065; The Peter-
hoff, 5 Wall. 50, 18 L.Ed. 564; Grinnan v. Edwards, 21
W.Va. 347.
It is called a "blockade de facto" when the usual
notice of the blockade has not been given to the
neutral powers by the government causing the
investment, in consequence of which the blockad-
ing squadron has to warn off all approaching
vessels.
Pacific Blockade
A means of coercion short of war, usually adopt-
ed by the joint action of several nations.
An instance of it occurred when Great Britain and Ger-
many united to prevent the slave traffic and stop the
importation of arms on the east coast of Africa. Snow.
Int. Law 79. In 1827 Greece was blockaded by France,
Russia, and Great Britain; in 1850 the Greek ports were
blockaded by Great Britain, and again in 1855 by the com-
bined fleets of the five Great Powers. In 1887 the Institute
of International Law unanimously declared in favor of the
legality of pacific blockade, subject to certain conditions.
See 21 L. Mag. & Rev. 285; 2 Oppen. §§ 40-49.
Paper Blockade
The state of a line of coast proclaimed to be
under blockade in time of war, when the naval
force on watch is not sufficient to repel a real at-
tempt to enter.
Public Blockade
A blockade which is not only established in
fact, but is notified, by the government directing
it, to other governments; as distinguished from a
simple blockade, which may be established by a
naval officer acting upon his own discretion or
under direction of superiors, without governmen-
tal notification. The Circassian, 2 Wall. 150, 17 L.
Ed. 796.
Simple Blockade
One established by a naval commander acting
on his own discretion and responsibility, or under
the direction of a superior officer, but without gov-
ernmental orders or notification. The Circassian,
2 Wall. 150, 17 L.Ed. 796.
BLOCKAGE. Recognition in the field of taxation
of fact that in some instances a large block of
stock cannot be marketed and turned into cash
as readily as a few shares. Citizens Fidelity Bank
& Trust Co. v. Reeves, Ky., 259 S.W.2d 432, 433.
BLOCKAGE RULE. Process of determining value
of large blocks of corporate stock for gift and
estate tax purposes, based on the postulate that
a large block of stock cannot be marketed as
readily and as advantageously in price as can a
few shares. Montclair Trust Co. v. Zink, Prerog.,
57 A.2d 372, 376, 380, 141 N.J.Eq. 401.
BLOCKHEAD. A term importing want of nat-
ural cleverness, and slowness and obstinacy of
mind.
BLOOD. Kindred; consanguinity; family rela-
tionship; relation by descent from a common an-
cestor. Swasey v. Jaques, 144 Mass. 135, 10 N.E.
758, 59 Am.Rep. 65.
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BLOOD
A person may be said to be "of the blood" of another
who has any, however small a portion, of the blood derived
from a common ancestor, Miller v. Grimes, 262 Pa. 226, 105
A. 92, thus including half blood as well as whole blood,
Gardner's Estate v. Gardner, 42 Utah, 40, 129 P. 360, 361.
All persons are of the blood of an ancestor who may, in the
absence of other and nearer heirs, take by descent from
that ancestor. Cornell v. Child, 156 N.Y.S. 449, 452, 170
App.Div. 240.
Half-Blood
A term denoting the degree of relationship
which exists between those who have the same
father or the same mother, but not both parents
in common.
Mixed Blood
A person is "of mixed blood" who is descended
from ancestors of different races or nationalities;
but particularly, in the United States, the term de-
notes a person one of whose parents (or more re-
mote ancestors) was a negro. U. S. v. First Nat.
Bank of Detroit, Minn., 234 U.S. 245, 34 S.Ct. 846,
848, 58 L.Ed. 1298.
Whole Blood
Kinship by descent from the same father and
mother; as distinguished from half blood, which
is the relationship of those who have one parent
in common, but not both.
BLOOD FEUD. Avenging the slaughter of kin on
the person who slaughtered him, or on his be-
longings.
Whether the Teutonic or the Anglo-Saxon law had a
legal right of blood feud has been disputed, but in Alfred's
day it was unlawful to begin a feud until al " attempt had
been made to exact the price of the life (weregild, q. v.).
BLOOD MONEY. A weregild, or pecuniary mulct
paid by a slayer to the relatives of his victim. Al-
so used, in a popular sense, as descriptive of mon-
ey paid by way of reward for the apprehension
and conviction of a person charged with a capital
crime.
BLOOD STAINS, TESTS FOR. See Precipitin
Test.
BLOODHOUNDS. Dogs remarkable for their
sense of smell and ability to follow a scent or
track a human being. Pedigo v. Com., 103 Ky. 41,
44 S.W. 143, 42 L.R.A. 432, 82 Am.St.Rep. 566.
It has been held that to permit evidence that a hound
has tracked an alleged criminal, it must be shown that it
had been trained in that work.
BLOODWIT. An amercement for bloodshed.
Cowell. The privilege of taking such amerce-
ments. Skene. A privilege or exemption from
paying a fine or amercement assessed for blood-
shed. Cowell.
BLOODY HAND. In forest law. The having the
hands or other parts bloody, which, in a person
caught trespassing in the forest against venison,
was one of the four kinds of circumstantial evi-
dence of his having killed deer, although he was
not found in the act of chasing or hunting. Man-
wood.
BLOWING WATER. By a ship is throwing water
in the hold back and forth and forcing it through
crevices in the ceiling and coming in contact with
the cargo. The Charles Rohde, D.C.Md., 8 F.2d
506.
BLUDGEON. Part of a boy's baseball bat, the
upper end of which had been broken off, has been
held to be a bludgeon within a statute relating to
the carrying of any concealed instrument. Peo-
ple v. McPherson, 220 N.Y. 123, 115 N.E. 515, 516.
Contra as to an iron bar, twenty inches long and
three-eighths to one-half inch in diameter. People
v. Visarities, 222 N.Y.S. 401, 403, 220 App.Div. 657.
BLUE. As applied to a cow, generally denoting
either a modified shade of black, or black with
white intermingled, or dark gray, dove, or slate
color, which, in contrast with some decided color
or with white, suggests and somewhat resembles
blue. Graham v. State, 16 Ga.App. 221, 84 S.E.
981, 983.
BLUE LAWS. A supposititious code of severe
laws for the regulation of religious and personal
conduct in the colonies of Connecticut and New
Haven; hence any rigid Sunday laws or religious
regulations. The assertion by some writers of the
existence of the blue laws has no other basis than
the adoption, by the first authorities of the New
Haven colony, of the Scriptures as their code of
law and government, and their strict application of
Mosaic principles. Century Dict.
BLUE NOTES. Notes accepted by a life insur-
ance company for the amount of premiums on the
policy, which provide for the continuance of the
policy in force until the due date of the notes.
Robnett v. Cotton States Life Ins. Co., 148 Ark.
199, 230 S.W. 257, 258.
"Extension notes" in insurance parlance. O'Dell v.
American Nat. Ins. Co., Mo.App., 107 S.W.2d 108, 110.
BLUE SKY LAW. A popular name for acts pro-
viding for the regulation and supervision of in-
vestment companies, for the protection of the com-
munity from investing in fraudulent companies.
A law intended to stop the sale of stock in fly by
night concerns, visionary oil wells, distant gold
mines, and other like fraudulent exploitations.
Dinsmore v. National Hardwood Co., 234 Mich. 436,
208 N.W. 701.
BLUFF. A high, steep bank, as by a river, the
sea, a ravine, or a plain, or a bank or headland
with a broad, steep face. Columbia City Land
Co. v. Ruhl, 70 Or. 246, 141 P. 208, 210.
BLUMBA. A certifying metal tag attached to
kosher meat. People on Complaint of Waller v.
Jacob Branfman & Son, 263 N.Y.S. 629, 632, 147
Misc. 290.
BLUNDER.' As applied in cases of ordinary negli-
gence is the want of or absence of ordinary care,
a failure to do what should have been done or -the
doing of that which should not have been done, re-
sulting in the happening of an event or injury
which could have and should have been foreseen
and avoided by use of such care as a reasonably
prudent person would have exercised under the
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same or similar circumstances. Loyd v. Pierce,
Tex.Civ.App., 89 S.W.2d 1035, 1038.
BLUNDERBUSS. A firearm intended to shoot ob-
jects at close quarters, without exact aim. Moline
v. Kotch, 213 Minn. 326, 6 N.W.2d 462.
BOARD. An official or representative body or-
ganized to perform a trust or to execute official
or representative functions or having the manage-
ment of a public office or department exercising
administrative or governmental functions. Com-
missioners of State Ins. Fund v. Dinowitz, 39 N.Y.
S.2d 34, 38, 179 Misc. 278.
A committee of persons organized under au-
thority of law in order to exercise certain authori-
ties, have oversight or control of certain matters,tor discharge certain functions of a magisterial,
representative, or fiduciary character.  Thus,
"board of aldermen," "board of health," "board of
directors," "board of works."
Also lodging, food, entertainment, furnished to
a guest at an inn or boarding house.
When used with reference to prisoners, as a
basis for the sheriff's fee, board may be equivalent
to "necessary food." Pacific Coal Co. v. Silver
Bow County, 79 Mont. 323, 256 P. 386.
"Board," as a verb, means to receive food for
a reasonable compensation, either with or with-
out lodging. In re Doubleday, 159 N.Y.S. 947, 949,
173 App.Div. 739; Wofford v. Hooper, 149 Tenn.
250, 259 S.W. 549.
To "board" a train may mean simply to "enter" it. St.
Louis, I. M. & S. Ry. Co. v. Williams, 117 Ark. 329, 175
S. W. 411, 412.
BOARD MEASURE. This term, in a contract of
sale of lumber for a specified price per thousand
feet, literally implies a measurement of lumber
having the dimensions of length, width, and thick-
ness, according to the number of cubic inches;
but it may be subject to explanation according to
the particular circumstances.  Paepcke-Leicht
Lumber Co. v. Talley, 106 Ark. 400, 153 S.W. 833,
836.
BOARD OF ALDERMEN. The governing body of
a municipal corporation. Oliver v. Jersey City,
63 N.J.Law, 96, 42 A. 782. See Aldermen.
BOARD OF AUDIT. A tribunal provided by stat-
ute in some states, to adjust and settle the ac-
counts of municipal corporations. Osterhoudt v.
Rigney, 98 N.Y. 222.
BOARD OF CIVIL AUTHORITY. In Vermont, in
the case of a city this term includes the mayor and
aldermen and justices residing therein; in the
case of a town, the selectmen and town clerk
and the justices residing therein; in the case of
a village, the trustees or bailiffs and the justices
residing therein. Vt.St.1894, 19, 59 (G.L. 70).
BOARD OF DIRECTORS. The governing body
of a private corporation.
Bank's "board of directors" within statute requiring
their consent means all directors. Code 1923, § 3412.
McLemore v. State, 26 Ala. App. 228, 157 So. 455, 457.
"Township board" and "board of directors" as inter-
changeable terms. State ex rel. Kent v. Olenhouse, 324
Mo. 49, 23 S.W.2d 83, 85.
BOARD OF EDUCATION. An agency of the state
for government and management of a school dis-
trict. McCurdy v. Board of Education of City of
Bloomington, 359 Ill. 188, 194 N.E. 287. The agen-
cy to which state delegates power and duty of con-
trolling schools in school district, Charles B. Sax-
on, Inc., v. Board .of Education of Union Free
School Dist. No. 1 of Town of Catskill, 168 Misc.
209, 4 N.Y.S.2d 757. Public municipal corporation,
Gustafson v. Wethersfield Tp. High School Dist.
191, 319 I11.App. 255, 49 N.E.2d 311, 312.
BOARD OF EQUALIZATION. See Equalization.
BOARD OF FIRE UNDERWRITERS. Unincor-
porated voluntary associations composed exclu-
sively of persons engaged in business of fire in-
surance, for consolidation and co-operation in mat-
ters affecting the business. Childs v. Insurance
Co., 66 Minn. 393, 69 N.W. 141, 35 L.R.A. 99.
BOARD OF HEALTH. A board or commission
with certain powers and duties relative to preser-
vation and improvement of the public health.
Gaines v. Waters, 64 Ark. 609, 44 S.W. 353. A
term descriptive of an official body. Fisher v.
Kelly, 289 N.Y. 161, 44 N.E.2d 413, 416. The "De-
partment of Health" of a city having a commis-
sioner of health as its single executive head, was
a "Board of Health". Fisher v. Kelly, 264 App.
Div. 596, 36 N.Y.S.2d 497, 499.
BOARD OF MEDICAL EXAMINERS. A board
exercising certain powers in respect to licensing
osteopathic physicians and surgeons. Jordt v. Cal-
ifornia State Board of Education, 35 Cal.App.2d
591, 96 P.2d 809, 811.
BOARD OF PARDONS. A board to investigate
applications for executive clemency and to make
reports and recommendations thereon to the gov-
ernor.
BOARD OF PUBLIC WORKS. Common council
of city in taking action respecting street improve-
ments and making assessments. City of Crown
Point v. Newcomer, 204 Ind. 589, 185 N.E. 440, 441.
BOARD OF REVIEW. A quasi judicial body to
hear evidence tending to show errors in an as-
sessment roll and to decide whether the assessor's
valuation is correct. State v. Williams, 160 Wis.
648, 152 N.W. 450, 451.
BOARD OF SPECIAL INQUIRY. An instrument
of executive power, made up of subordinates of
the commissioner of immigration with administra-
tive duties. Pearson v. Williams, 202 U.S. 281, 26
S.Ct. 608, 50 L.Ed. 1029.
BOARD OF SUPERVISORS. An organized com-
mittee, or body of officials, constituting part of the
county government, with special charge of the
county revenues.
BOARD OF THE TOWN. The board of education
of a school district is a "board of the town."
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Charles B. Saxon, Inc., v. Board of Education of
Union Free School Dist. No. 1 of Town of Cat-
skill, 168 Misc. 209, 4 N.Y.S.2d 757.
BOARD OF TRADE. An organization for the ad-
vancement and protection of business interests.
Retailers Credit Ass'n of Alameda County v. Com-
missioner of Internal Revenue, C.C.A.9, 90 F.2d
47, 51, 111 A.L.R. 152. An organization of mer-
chants, manufacturers, etc., of a city, for further-
ing its commercial interests, advancing its pros-
perity, etc. In England, an administrative depart-
ment of government, for the consideration of mat-
ters relating to trade and foreign plantations.
BOARD OF WORKS. A board for the better local
management of the English metropolis having the
care and management of grounds and gardens;
the superintendence of drainage; the regulation of
street traffic and of the buildings of the metropo-
lis. Brown.
BOARDER. One who makes a special contract
for food with or without lodging. Berkshire
Woollen Co. v. Proctor, 7 Cush., Mass., 424; One
who boards at a boarding house or school. Atlan-
tic City v. Le Beck, 125 N.J.L. 373, 15 A.2d 653,
654. One who has food and lodging for an agreed
price, usually under a contract intended to con-
tinue for a considerable period of time. Ullman
v. State, 1 Tex.App. 220, 28 Am.Rep. 405. •
A guest, as distinguished from boarder, comes and
remains without any bargain for time, and may go away
when he pleases. Stewart v. McCready, 24 How.Prac.,
N.Y., 62; In re Doubleday, 173 App.Div. 739, 159 N.Y.S.
947, 949.
BOARDING HOUSE. A house where the business
of keeping boarders generally is carried on, and
which is held out by the owner or keeper as a
place where boarders are kept; one for the accom-
modation of those who enter under contract for
entertainment at a certain rate for a certain period
of time, as for a week or month, at a rate of com-
pensation agreed on; a house kept principally for
the residence of permanent boarders. Singelakis
v. Davidson, 117 N.J.L. 332, 188 A. 443, 444. A
sort of public house, partaking in some degree
of the character of an inn or restaurant. Baddour
v. City of Long Beach, 279 N.Y. 167, 18 N.E.2d 18,
21, 124 A.L.R. 1003. A quasi public house, where
boarders are generally and habitually kept, and
which is held out and known as a place of enter-
tainment of that kind. Cady v. McDowell, 1 Lans.,
N.Y. 486; Friedrich Music House v. Harris, 200
Mich. 421, 166 N.W. 869, L.R.A.1918D, 400.
A house occupied for carrying on the business of keeping
boarders, although while prosecuting the business and as
a means of prosecuting it, the occupant and his wife and
children live in the house. Trainor v. Le Beck, 101 N.J.Eq.
823, 139 A. 16, 17. A boarding-house and an inn or hotel
differs in, that in a boarding-house the guest is under an
express contract, while in an inn there is no express agree-
ment. Willard v. Reinhardt, 2 E. D. Smith, N. Y., 148;
McIntosh v. Schops, 92 Or. 307, 180 P. 593. An innkeeper
is also bound to receive a guest when he presents himself.
2 El. & Bl. 144; McClaugherty v. Cline, 128 Tenn. 605, 163
S.W. 801. A "boarding-house" is also less public in char-
aracter. State v. Brown, 112 Kan. 814, 212 P. 663, 664, 31
A.L.R. 338. See, also, Talbott v. Southern Seminary, 131
Va. 576, 109 S.E. 440, 19 A.L.R. 534. A "rooming house"
differs from a "boarding-house" only in that the latter
furnishes meals. City of Independence v. Richardson, 117
Kan. 656, 232 P. 1044, 1046. A boarding school, however,
is not a boarding-house within a lien statute. Talbott v.
Southern Seminary, 131 Va. 576, 109 S.E. 440, 441, 19
A.L.R. 534.
BOARIUS, adj. Lat. Relating to neat cattle.
See Bovarius.
BOAT. A small open vessel, or water craft, usu-
ally moved by oars or rowing.
It is commonly distinguished in law from a ship or ves-
sel, by being of smaller size and without a deck. The
Saxon, D.C.S.C., 269 F. 639, 641. But "boat" and "vessel"
are often used synonymously. Southern Pac. Co. v. Jen-
sen, 244 U.S. 205, 37 S. Ct. 524, 527, 61 L. Ed. 1086, L.R.A.
1918C, 451. And see State v. Hutchins, 79 N.H. 132, 105
A. 519, 521, 2 A.L.R. 1685 ("boats and rafts" held broad
enough to cover all water craft, not merely small row-
boats). The verb "boat" means to go in a boat. Chappell
v. Commercial Casualty Ins. Co., 120 W.Va. 262, 197 S.E.
723, 724.
International rule that sailing vessels shall keep out of
way of sailing vessels or boats fishing with nets or lines or
trawls does not apply to craft 55 feet long equipped with
machinery powerful enought to handle a trawl which
would ordinarily be decked over, would have living ac-
commodations for crew, etc. International Rules, art. 26,
33 U.S.C.A. § 111. The Virginia and Joan, C.C.A.Mass., 86
F.2d 259, 261. Seaplanes equipped with pontoons or hulls
having hydroplaning surfaces are "hydroplane boats"
though provided with wings. Fauber v. United States, Ct.
Cl., 37 F.Supp. 415, 435.
BOATABLE. A term applied in some states to
minor rivers and streams capable of being navi-
gated in small boats, skiffs, or launches, though
not by steam or sailing vessels. New England
Trout, etc., Club v. Mather, 68 Vt. 338, 35 A. 323,
33 L.R.A. 569.
A "boatable stream" is one of common passage as a high
way. Boutwell v. Champlain Realty Co., 89 Vt. 80, 94 A.
108, 111, Ann.Cas.1918A, 726.
BOATING. Conveyance by a boat, of whatever
kind, of persons or freight. Bosworth v. Nelson,
172 Ga. 612, 158 S.E. 306, 307.
BOATSWAIN. A seaman who superintends the
work of the crew. South Atlantic S. S. Co. of
Delaware v. Munkacsy, Del., 7 W.W.Harr. 580, 187
A. 600, 604. The foreman of sailors. McCauley v.
Pacific Atlantic S. S. Co., 167 Or. 80, 115 P.2d 307,
308.
BOB-TAIL DRIVER. A person collecting and de-
livering laundry without being subject to com-
plete control of employer. Ring v. City Dry
Cleaners, Fla., 152 Fla. 622, 12 So.2d 593, 594.
BOBTAILED CABOOSE. One with a door in the
front end and without any platform. St. Louis
Southwestern Ry. Co. of Texas v. Johnson, Tex.
Civ.App., 249 S.W. 1092.
BOBTAILS. Persons who conduct stores or es-
tablishments of their own where patrons may
bring articles to be laundered. Schwartz v. Laun-
dry & Linen Supply Drivers' Union, Local 187, 339
Pa. 353, 14 A.2d 438, 439.
BOC. In Saxon law. A book or writing; a deed
or charter. Boc land, deed or charter land. Land
boc, a writing for conveying land; a deed or char-
ter; a land-book. The land-bocs, or evidences of
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BODY
title, corresponding to modern deeds, were de-
stroyed by William the Conqueror.
BOC HORDE. A place where books, writings, or
evidences were kept, generally in monasteries.
Cowell.
BOC LAND. In Saxon law. Allodial lands held
by deed or other written evidence of title.
BOCERAS. Sax. A scribe, notary, or chancellor
among the Saxons.
BODILY. Pertaining to or concerning the body;
of or belonging to the body or the physical con-
stitution; not mental but corporeal. Electric R.
Co. v. Lauer, 21 Ind.App. 466, 52 N.E. 703; Provi-
dent Life & Accident Ins. Co. v. Campbell, 18 Tenn.
App. 452, 79 S.W.2d 296.
Under a health insurance policy the words "bodily dis-
ease or illness" have been held to embrace insanity. Amer-
ican Nat. Ins. Co. v. Denman, Tex.Civ.App., 260 S.W. 226,
227; Syphilis and insanity caused by syphilis. Magill v.
Travelers Ins. Co., C.C.A.Mo., 133 F.2d 709, 712.
Bodily Harm
Any touching of the person of another against
his will with physical force, in an intentional, hos-
tile, and aggressive manner, or a projecting of
such force against his person. People v. Moore,
50 Hun, 356, 3 N.Y.Supp. 159. Any impairment of
physical condition of another's body or physical
pain or illness, but does not include minute dis-
turbance of nerve centers caused by fear, shock or
other emotions. Clark v. Associated Retail Credit-
men of Washington, 70 App.D.C. 183, 105 F.2d 62,
64.
Bodily Heirs
Heirs begotten or borne by the person referred
to; lineal descendants. Turner v. Hause, 199 Ill.
464, 65 N.E. 445; Righter v. Forrester, 1 Bush,
Ky., 278.
Progeny or issue, Including children, grandchildren, and
other lineal descendants. Matthews v. Matthews, 214 N.C.
204, 198 S.E. 663, 665. Children synonymous. Murdock v.
Deal, 208 N.C. 754, 182 S.E. 466. Heirs of body synony-
mous, Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662, 666.
Adopted child as included in words "bodily heirs", Leep-
er v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 663, 133 A.L.R.
586. Words of limitation, Kinnaird v. Farmers' & Mer-
chants' Bank, 249 Ky. 661, 61 S.W.2d 291.
Bodily Infirmity
A settled disease or ailment that would probab-
ly result to some degree in general impairment
of physical health and vigor. Travelers' Ins. Co.
of Hartford, Conn., v. Byers, 123 Cal.App. 473, 11
P.2d 444, 446; Ross v. First American Ins. Co.,
125 Neb. 329, 250 N.W. 75, 79. An ailment or dis-
order of an established and settled character.
Maremont v. Lawyers Mut. Ben. Ass'n, 294 Ill.
App. 605, 13 N.E.2d 849; Ross v. First American
Ins. Co., 125 Neb. 329, 250 N.W. 75, 79; something
that amounts to inroad on physical health or
impairment of bodily or mental powers. McClure
v. World Ins. Co., 126 Neb. 676, 254 N.W. 393;
Gyulai v. Prudential Ins. Co. of America, 135 Pa.
Super. 73, 4 A.2d 824, 826.
Bodily Injury
Any physical or corporeal injury; not necessari-
ly restricted to injury to the trunk or main part
of the body as distinguished from the head or
limbs. State Life Ins. Co. v. Allison, C.C.A.Ala.,
269 F. 93, 94, 14 A.L.R. 412; Ross v. International
Travelers Ass'n, Tex.Civ.App., 283 S.W. 621. A
physical injury only. United States Fidelity &
Guaranty Co. v. Shrigley, D.C.Ark., 26 F.Supp. 625,
628. A cut, bruise, or wound. Chase v. Business
Men's Assur. Co. of America, C.C.A.Utah, 51 F.2d
34, 36. A localized abnormal condition of the liv-
ing body. King v. Travelers Ins. Co., 123 Conn.
1, 192 A. 311. An injury caused by external vio-
lence. P.rannaker v. Prudential Ins. Co. of Ameri-
ca, 236 Mo.App. 239, 150 S.W.2d 498, 502. Burns
v. Employers' Liability Assur. Corporation, Limit-
ed, of London, England, 134 Ohio St. 222, 16 N.E.2d
316, 321, 117 A.L.R. 733.
"Bodily injuries" and "personal injuries" are not syn-
onymous. • Malone v. Costa, 151 Fla. 144, 9 So.2d 275, 277.
"Bodily injury" and "personal injury" may be used as
equivalent terms. Cormier v. Hudson, 284 Mass. 231, 187
N.E. 625, 626. American Fidelity & Casualty Co. v. Ma-
hon, 170 Md. 573, 185 A. 330, 332, 105 A.L.R. 1200.
Bodily Member
An ear is not embraced in the term "member".
Lumbermens Mut. Casualty Co. v. Cook, 69 Ga.
App. 131, 25 S.E.2d 67, 71.
Great Bodily Harm
An injury of a greater and more serious kind
than battery. Shires v. Boggess, 72 W.Va. 109, 77
S.E. 542, 545. Equivalent to "maim." State v.
Foster, 281 Mo. 618, 220 S.W. 958, 959.
Great Bodily Injury
An injury of a more grave and serious charac-
ter than an ordinary battery, but one which can-
not be definitely defined. State v. Ockij, 165 Iowa,
237, 145 N.W. 486, 487; Hallett v. State, 109 Neb.
311, 190 N.W. 862, 863,
BODMERIE, BODEMERIE, BODDEMEREY.
Belg. and Germ. Bottomry ( q. v.).
BODY. A person. Used of a natural body, or
of an artificial one created by law, as a corpora-
tion.
The main part of the human body; the trunk.
Walker v. State, 34 Fla. 167, 16 So. 80, 43 Am.St.
Rep. 186. The term may, however, embrace all
members of the person, Louisville Ry. Co. v. Veith,
157 Ky. 424, 163 S.W. 217; including the head,
Franklin v. State, 33 Ohio Cir.Ct.R. 21, 22.
Also the main part of an instrument; in deeds
it is spoken of as distinguished from the recitals
and other introductory parts and signatures; in
affidavits, from the title and jurat.
A collection of laws; that is, the embodiment
of the laws in one connected statement or collec-
tion, called a "body of laws" ( q. v.).
A cement mixer assembled on a truck, Consolidated
Rock Products Co. v. Carter, 54 Cal.App.2d 519, 129 P.2d
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BODY
455, 457. The Workmen's Benefit Fund of the United States
of America. In re Workmen's Benefit Fund of United
States, 38 N.Y.S.2d 429, 431, 265 App.Div. 176.
BODY CORPORATE. A corporation public or
private.
School districts, Commonwealth v. School Dist. of Pitts-
burgh, Allegheny County, 343 Pa. 394, 23 A.2d 496. State
Building Commission, Utah State Building Commission, for
Use .and Benefit of Mountain States Supply Co., v. Great
American Indemnity Co., 105 Utah 11, 140 P.2d 763, 767.
BODY EXECUTION. An "execution" for confine-
ment of defendant, Hershey v. People, 91 Colo. 113,
12 P.2d 345, 347.
A "body execution" is an "execution" which directs that,
in accordance with the provisions therein set forth, the
body of the defendant therein named be committed to
jail. Ex parte Thompson, 111 Vt. 7, 9 A.2d 107, 110.
BODY HEIRS. Sometimes words of purchase.
Brown v. Boone, 129 Kan. 786, 284 P. 436, 437.
BODY OF A COUNTY. A county at large, as dis-
tinguished from any particular place within it.
A county considered as a territorial whole. State
v. Arthur, 39 Iowa, 632; People v. Dunn, 31 App.
Div. 139, 52 N.Y.Supp. 968.
BODY OF AN INSTRUMENT. The main and op-
erative part; the substantive provisions, as dis-
tinguished from the recitals, title, jurat, etc.
BODY OF LAWS. An organized and systematic
collection of rules of jurisprudence.
BODY OF THE OFFENSE. When applied to any
particular offense, means that the particular
crime charged has actually been committed by
some one. Barrett v. State, 57 Okl. 259, 47 P.2d
613, 617.
BODY POLITIC OR CORPORATE. A social com-
pact by which the whole people covenants with
each citizen, and each citizen with the whole peo-
ple, that all shall be governed by certain laws for
the common good, Uricich v. Kolesar, 54 Ohio App.
309, 7 N.E.2d 413, 414. A term applied to a corpo-
ration. County. Bazzoli v. Larson, 40 Ohio App.
321, 178 N.E. 331, 332; Lindburg v. Bennett, 117
Neb. 66, 219 N.W. 851, 855. Municipality. Middle-
States Utilities Co. v. City of Osceola, 1 N.W.2d
643, 645, 231 Iowa 462; Lindburg v. Bennett, 117
Neb. 66, 219 N.W. 851, 855. School district. Pat-
rick v. Maybank, 198 S.C. 262, 17 S.E.2d 530, 534.
State or nation or public associations, Utah
State Building Commission, for Use and Benefit
of Mountain States Supply Co., v. Great American
Indemnity Co., 105 Utah 11, 140 P.2d 763, 767.
BOILARY. Water arising from a salt well be-
longing to a person who is not the owner of the
soil.
BOILER. Insurance policies defining a boiler as
a receptacle in which steam is generated, including
the stop valve nearest the boiler, have been held
not to include a nipple screwed into the outlet of
the stop valve, Cambria Coal Mining Co. v. Travel-
ers' Indemnity Co., 144 Tenn. 469, 234 S.W. 323,
324, nor the whistle pipe above the whistle valve,
Norfolk & W. Ry. Co. v. Royal Indemnity Co.,
D.C.Pa., 257 F. 849, 850; nor damage by gas ex-
plosion in fire box and chimney, Hartford Steam
Boiler Inspection & Insurance Co. v. Kleinman,
Tex.Civ.App., 293 S.W. 894, 895.
Under the Boiler Inspection Act Feb. 17, 1911, §
2, 45 U.S.C.A. § 23, a locomotive cab is an appur-
tenance to the boiler, Brown v. Lehigh Valley R.
Co., 108 Misc. 384, 177 N.Y.S. 618, 619; and a bell
ringer is a part or appurtenance of a locomotive
and tender, Hines v. Smith, C.C.A.Ill., 275 F. 766,
767; but not a so-called trail car similar to a flat
car, used exclusively in switching cars or trains
onto a transfer boat, for the purpose of preventing
the great weight of the locomotive from being
placed on the apron or approaches of the transfer
boat, Alabama & V. Ry. Co. v. Ware, 129 Miss.
315, 92 So. 161, 162.
BOILS. A policy, providing for the payment of in-
demnity in the event the insured suffered from
"boils," is clear and explicit, and does not cover
disability occasioned by a disease designated as
"ischio-rectal abscess." Midland Casualty Co. v.
Mason, 55 Okl. 93, 154 P. 1171, 1172. A localized
inflammatory swelling of the skin. Beck v. State,
29 Ala.App. 410, 197 So. 42, 43.
BOIS, or BOYS. L. Fr. Wood; timber; brush.
BOLHAGIUM, or BOLDAGIUM. A little house or
cottage. Blount.
BOLT. The desertion by one or more persons
from the political party to which he or they be-
long; the permanent withdrawal before adjourn-
ment of a portion of the delegates to a political
convention. Rap. & L.
A mass or block of wood from which anything
may be cut or formed. St. Louis, I. M. & S. R.
Co. v. J. F. Hasty & Sons, 255 U.S. 252, 41 S.Ct.
269, 270, 65 L.Ed. 614.
BOLTING. In English practice. A term formerly
used in the English inns of court, but more par-
ticularly at Gray's Inn, signifying the private ar-
guing of cases, as distinguished from mooting,
which was a more formal and public mode of ar-
gument. Cowell; Tomlins; Holthouse.
BOMBAY REGULATIONS. Regulations passed
for the presidency of Bombay, and the territories
subordinate thereto. They were passed by the
governors in council of Bombay until the year
1834, when the power of local legislation ceased,
and the acts relating thereto were thenceforth
passed by the governor general of India in coun-
cil. Mozley & Whitley.
BON, Fr. In old French law, a royal order or
check on the treasury, invented by Francis I.
Bon pour mule livres, good for a thousand livres.
Step.Lect. 387.
In modern law. The name of a clause (bon
pour , good for so much) added to a cedule
or promise, where it is not in the handwriting of
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BONA FIDE
the signer, containing the amount of the sum
which he obliges himself to pay. Poth.Obl. part
4, ch. 1, art. 2, § 1.
BONA. Lat. n. Goods; property; possessions.
In the Roman law, this term was used to designate
all species of property, real, personal, and mixed,
but was more strictly applied to real estate. In
modern civil law, it includes both personal prop-
erty (technically so calledl and chattels real, thus
corresponding to the French biens (q. v.). In the
common law, its use was confined to the descrip-
tion of movable goods. Tisdale v. Harris, 20 Pick.
(Mass.) 13.
Bona Confiscata
Goods confiscated or forfeited to the imperial fist or
treasury. 1 Bl.Comm. 299.
Bona et Catalla
Goods and chattles. Movable property. This expression
includes all personal things that belong to a man. 16 Mees.
& W. 68.
Bona Felonum
In English law. Goods of felons; the goods of one con-
victed of felony. 5 Coke, 110.
Bona Forisfacta
Goods forfeited.
Bona Fugitivorum.
In English law. Goods of fugitives; the proper goods of
him who flies for felony. 5 Coke, 109b.
Bona Immobilia
Lands. Castle v. Castle,,C.C.A.Haw., 267 F. 521, 522.
Bona Mobilia
In the civil law. Movables. Castle v. Castle, C.C.A.
Haw., 267 F. 521, 522. Those things which move them-
selves or can be transported from one place to another, and
not permanently attached to a farm, heritage, or building.
Bona Notabilia
Notable goods; property worthy. of notice, or of suffi-
cient value to be accounted for. 2 Bl.Comm. 509; Rolle,
Abr. 908. Moore v. Jordan, 36 Kan. 271, 13 P. 337, 59 Am.
Rep. 550.
Bona Paraphernalia
In the civil law. The separate property of a married
woman other than that which is included in her dowry;
more particularly, her clothing, jewels, and ornaments.
Whiton v. Snyder, 88 N.Y. 303.
Bona Peritura
Goods of a perishable nature; such goods as an executor
or trustee must use diligence in disposing of and convert-
ing them into money.
Bona Utlagatorum
Goods of outlaws; goods belonging to persons outlawed.
Bona Vacantia
Vacant, unclaimed, or stray goods. Those things in
which nobody claims a property, and which belonged,
under the common law, to the finder, except in certain
instances, when they were the property of the king. 1
Bl.Comm. 298.
Bona Waviata
In English law. Waived goods; goods stolen and waived,
that is, thrown away by the thief in his flight, for fear of
being apprehended, or to facilitate his escape; and which
go to the sovereign. 5 Coke, 109b; 1 Bl.Comm. 296.
BONA. Lat. adj. Good. Used in numerous legal
phrases of which the following are the principal:
Bona Fides
Good faith; integrity of dealing; honesty; sincerity;
the opposite of mala fides and of dolus males,
Bona Gestura
Good abearance or behavior.
Bona Gratia
In the Roman law. By mutual consent; voluntarily. A.
term applied to a species of divorce where the parties sep-
arated by mutual consent; or where the parties renounced
their marital engagements without assigning any cause, or
upon mere pretexts. Tayl. Civil Law, 361 362; Calvin.
Bona Memoria
Good memory. Generally used in the phrase sance men-
tis et bonce memorice, of sound mind and good memory,
as descriptive of the mental capacity of a testator.
Bona Patria
In the Scotch law. An assize or jury of good neighbors.
Bell.
BONA FIDE. Is or with good faith; honestly,
openly, and sincerely; without deceit or fraud.
M. Lowenstein & Sons v. British-American Mfg.
Co., C.C.A.Conn., 7 F.2d 51, 53; Fairfield Holding
Corporation v. Souther, 258 Mass. 540, 155 N.E.
639, 640. Truly; actually; without simulation or
pretense. Innocently; in the attitude of trust and
confidence; without notice of fraud, etc. Real,
actual, genuine, and not feigned. Bridgeport
Mortgage & Realty Corporation v. Whitlock, 128
Conn. 57, 20 A.2d 414, 416.
The phrase "bona fide" is sometimes used ambiguously;
thus, the expression "bona fide holder for value" (see that
title, infra) may either mean a holder for real value, as
opposed to a holder for pretended value, or it may mean a
holder for reaL,yalue without notice of any fraud, etc.
Byles, Bills, 121.
Bona Fide Contract Carriers
Genuine contract carriers without deceit or fraud. Infan-
tino v. Pennsylvania Public Utility Commission, 146
Pa.Super. 245, 22 A.2d 108, 109; Puhl v. Pennsylvania Pub-
lic Utility Commission, 139 Pa.Super. 152, 11 A.2d 508, 511.
Bona Fide Holder for Value
An innocent or "bona fide holder for value" of negotiable
paper is one who has taken it in good faith for a valuable
consideration in the ordinary course of business and when
it was not overdue. McCamant v. McCamant, Tex.Civ.App.,
187 S.W. 1096, 1099. "Holder in due course" as equivalent
for expression "bona fide holder for value without notice."
Drumm Const. Co. v. Forbes, 305 Ill. 303, 137 N.E. 225, 226,
26 A.L.R. 764; Bank of California v. National City Co., 138
Wash. 517, 244 P. 690, 691; Bruce v. Citizens' Nat. Bank of
Lineville, 185 Ala. 221, 64 So. 82, 84; Weller v. Meadows,
Mo.App., 272 S.W. 85, 90. One who receives negotiable
paper in payment of antecedent obligations without notice
of prior equities. W. Horace Williams Co. v. Vandaveer,
Brown & Stoy, Tex.Civ.App., 84 S.W.2d 333, 340.
Bona Fide Judgment Creditor
One who in good faith, without fraud or collusion, recov-
ers a judgment for money honestly due him. Rochester
Trust Co. v. White, 243 Pa. 469, 90 A. 127, 129.
Bona Fide Mortgagee
Essential elements of status are good faith, valuable con-
sideration, and absence of notice. Companaro v. Gondolfo,
C.C.A.N.J., 60 F.2d 451, 452. To constitute "bona fide
mortgagee" there must be an absence of notice and pay-
ment of, or fixed liability for the consideration. Cam-
bridge Production Credit Ass'n v. Patrick, 140 Ohio St. 521,
45 N.E.2d 751, 755, 144 A.L.R. 323.
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BONA FIDE
Bona Fide Operation
Substantial, as distinguished from incidental, sporadic,
or infrequent service. Goncz v. Interstate Commerce Com-
mission, D.C.Mass., 48 F.Supp. 286, 288.
Bona Fide Possessor
One who not only supposes himself to be the true pro-
prietor of the land, but who is ignorant that his title is
contested by some other person claiming a better right to
It. Whitehead v. Barker, 288 Mich. 19, 284 N.W. 629, 631.
Bona Fide Possessor Facit Fructus Consumptos Suos
By good faith a possessor makes the fruits consumed his
own. Tray. Lat. Max. 57.
Bona Fide Purchaser
A purchaser in good faith for valuable consideration and
without notice. Neal v. Holt, Tex.Civ.App., 69 S.W.2d 603,
609. A purchaser for a valuable consideration paid or
parted with in the belief that the vendor had a right to
sell, and without any suspicious circumstances to put him
on inquiry. Merritt v. Railroad Co., 12 Barb., N. Y., 605.
One who acts without covin, fraud, or collusion; one who,
in the commission of or connivance at no fraud, pays full
price for the property, and in good faith, honestly, and in
fair dealing buys and goes into possession. Sanders v.
McAffee, 42 Ga. 250. One who at time of purchase
advances a new consideration, surrenders some security,
or does some other act which leaves him in a worse posi-
tion if his purchase should be set aside. Kelly v. Grainey,
113 Mont. 520, 129 P.2d 619, 626. Title, possession, and
want of notice, either actual or constructive, as the essen-
tial factors.  Taylor v. Lindenmann, 211 Iowa, 1122, 235
N.W. 310, 312. Payment of consideration prior to notice
of adverse claim as essential. The J. Oswald Boyd,
D.C.Mich., 53 F.Supp. 103, 106. Payment of valuable con-
sideration, good faith, absence of purpose to take unfair
advantage of third persons, and absence of actual or con-
structive notice of outstanding rights of others as the
essential elements. Luschen v. Stanton, 192 Okl. 454, 137
P.2d 567, 570. "Innocent purchaser for value" and "bona
fide purchaser" as synonymous. Felts v. Whitaker, Tex.
Civ.App., 129 S.W.2d 682, 690.
Bona Fide Residence
Residence with domiciliary intent, i. e., a home In which
the party actually lives.  Alburger v. Alburger, 138
Pa. Super. 339, 10 A.2d 888, 890.
BONA FIDES EXIGIT UT QUOD CONVENIT
FIAT. Good faith demands that what is agreed
upon shall be done. Dig. 19, 20, 21; Id. 19, 1, 50;
Id. 50, 8, 2, 13.
BONZE FIDEI NON CONGRUIT DE APICIBUS
JURIS DISPUTARE. It is unbecoming to (or
incompatible with) good faith to discuss (insist
upon) the extreme subtleties of the law. A max-
im which may be more freely rendered as mean-
ing, "To insist on extreme subtleties of law is an
encouragement to fraud." Adams. Gloss.
BONA FIDES NON PATITUR UT BIS IDEM
EXIGATUR. Good faith does not allow us to
demand twice the payment of the same thing.
Dig. 50, 17, 57; Broom, Max. 338, note; Perine v.
Dunn, 4 Johns.Ch., N.Y., 143.
BONZE FIDEI. In the civil law. Of good faith;
it good faith.
BONZE FIDEI CONTRACTS. In civil and Scotch
law. Those contracts in which equity may inter-
pose to correct inequalities, and to adjust all mat-
ters according to the plain intention of the par-
ties. 1 Karnes, Eq. 200.
BONZE FIDEI EMPTOR. A purchaser in good
faith. One who either was ignorant that the thing
he bought belonged to another or supposed that
the seller had a right to sell it. Dig. 50, 16, 109.
See Id. 6, 2, 7, 11.
BONZE FIDEI POSSESSOR. A possessor in good
faith. One who believes that no other person has
a better right to the possession than himself.
Mackeld.Rom.Law, § 243.
BONZE FIDEL POSSESSOR IN ID TANTUM
QUOD SESE PERVENERIT TENETUR. A pos-
sessor in good faith is liable only for that which
he himself has obtained (or that which has come
to him). 2 Inst. 285.
BONANZA. Enormous profit for miner in placer
mine. Ballagh v. Williams, 50 Cal.App.2d 10, 122
P.2d 343, 344.
BOND. A certificate or evidence of a debt. State
v. Merchants Nat. Bank of Mobile, 230 Ala. 661,
162 So. 270; First State Bank of Kansas City v.
Bone, 122 Kan. 493, 252 P. 250, 254. A contract.
Cusack v. McGrain, 136 Ohio St. 27, 23 N.E.2d 633,
635. A debt on which interest is paid. Commis-
sioner of Internal Revenue v. H. P. Hood & Sons,
C.C.A.1, 141 F.2d 467, 469. A deed whereby the -
obligor obliges himself, his heirs, executors and
administrators, to pay a certain sum of money to
another at a day appointed. Gural v. Engle, 128
N.J.L. 252, 25 A.2d 257, 260; Commonwealth, for
Use of Fayette County v. Perry, 330 Pa. 355, 199
A. 204, 206. A mere promise to pay. Deppe v.
Lufkin, C.C.A.Mass., 116 F.2d 483, 486. A spe-
cialty or sealed instrument and not merely a writ-
ten instrument. Forrest v. Hawkins, 169 Va. 470,
194 S.E. 721, 722. A written obligation. Davis
v. Phipps, 191 Ark. 298, 85 S.W.2d 1020, 1023, 100
A.L.R. 1110; Covington Virginian v. Woods, 182
Va. 538, 29 S.E.2d 406; Code Miss.1930, § 1365. An
instrument which is not necessarily under seal.
Carson, Pirie, Scott & Co. v. Duffy-Powers, Inc.,
D.C.N.Y., 9 F.Supp. 199, 201; Code Miss.1930, §
1365. An instrument with a clause, with a sum
fixed as a penalty, binding the parties to pay the
same, conditioned, however, that the payment of
the penalty may be avoided by the performance
by some one or more of the parties of certain
acts. In re Fitch, 3 Redf.Sur., N.Y., 459. And
see Stifel Estate Co. v. Cella, 220 Mo.App. 657, 291
S.W. 515, 518. Any contractual funding device.
Leon County v. State, 122 Fla. 505, 165 So. 666.
Debentures. First State Bank of Kansas City v.
Bone, 122 Kan. 493, 252 P. 250, 254. Obligation to
pay interest embodied in bonds as included in
word "bonds." Eisiminger v. Elliott, Colo., 103
Colo. 216, 84 P.2d 823, 825.
In old Scotch law. A bond-man; a slave.
Skene.
Bonds are either single (simple) or double, (condi-
tional.) A single bond is one in which the obligor binds
himself, his heirs, etc., to pay a certain sum of money to
another person at a specified day. A double (or condi-
tional) bond is one to which a condition is added that if
the obligor does or forbears from doing some act the obli-
gation shall be void. Formerly such a condition was some-
times contained in a separate instrument, and was then
called a "defeasance."
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BONDAGE
Word "bond" in a statute means negotiable bonds.
Royal Oak Drain. Dist., Oakland County v. Keefe, C.C.A.
Ohio, 87 F.2d 786. Word "bons" in statute held applicable
to a single bond. Lien Law N.Y. § 231. In re Downtown
Athletic Club of New York City, D.C.N.Y., 18 F.Supp. 712,
715.
As a verb, to place under the cohditions of a bond;
specif. : to convert into a debt secured by bonds. State
ex rel. Pittman Bros. Const. Co. v. Watson, 199 La. 623, 6
So.2d 709, 712. To give bond for, as for duties on goods;
to secure payment of duties, by giving bond. Bonded,
secured by bond. Bonded goods are those for the duties
on which bonds are given.
Bond and Disposition in Security
In Scotch law. A bond and mortgage on land.
Bond and Mortgage
A species of security, consisting of a bond conditioned
for the repayment of a loan of money, and a mortgage of
realty to secure the performance of the stipulations of the
bond. Meigs v. Bunting, 141 Pa. 233, 21 A. 588, 23 Am.St.
Rep. 273.
A bond and mortgage are distinct and separate securi-
ties. In re Maroney's Estate, 311 Pa. 336, 166 A. 914, 915.
"Bond" is primarily contract to pay while "mortgage" is
separate contract to secure payment. Mendelson v. Realty
Mortg. Corporation, 257 Mich. 442, 241 N.W. 154, 155.
Investment in certificates of participation in bonds and
mortgages as within statute authorizing investment in
"bonds and mortgages". In re Smith, 279 N.Y. 479, 18
N.E.2d 666, 670.
Bond Creditor
A creditor whose debt is secured by a bond.
Bond for Deed
An agreement to make title in the future or an executory
or incomplete sale. Ingram v. Smith, 62 Ga.App. 335, 7
S.E.2d 922, 926. An agreement to buy and sell real estate
on small monthly payments. Galverina v. Ben L. Lewis
Corporation, La.App., 165 So. 29.
Bond for Title
An agreement to make title in the future or an executory
or incomplete sale. Ingram v. Smith, 62 Ga.App. 335, 7
S.E.2d 922, 926. White v. Stokes, 67 Ark. 184, 53 S.W. 1060.
In re Phcenix Planing Mill, D.C.Ga., 250 F. 899, 903. It is
not a conveyance of legal title but only a contract t,') con-
vey and may ripen into an equitable title upon payment
of the consideration. Faddell v. Taylor, Tex.Com.App.,
239 S.W. 931, 932.
Bond Issue
Delivery of instruments as covered by term. Vans
Agnew v. Fort Myers Drainage Dist., C.C.A.Fla., 69 F.2d
244, 245.
Bond of Indebtedness
Instruments containing promise to pay sum certain under
seal and issued in series in nature of corporate securities.
Bellefield Co. v. Heiner, D.C.Pa., 26 F.2d 292, 293. A tem-
porary bond in registered form issued by public service
corporation.  Wisconsin Public Service Corporation v.
United States, D.C.Wis., 40 F.Supp. 327, 330.
Bond of Such Ordinary
Bond that the ordinary gives for the faithful performance
of duties as clerk. Jones v. Reed, 58 Ga.App. 72, 197 S.E.
665, 668.
Bond Tenants
In English law. Copyholders and customary tenants are
sometimes so called. 2 Bi.Comm. 148.
Bond with Surety
Bond executed without surety but accompanied by cer-
tified check as substitute. Clinch Valley Lumber Corpora-
tion v. Hagan Estates, Inc., 167 Va. 1, 187 S.E. 440, 441.
Bonds of State or Public Corporation
State's or city's general obligation bonds. City of Los
Angeles v. Agardy, 1 Ca1.2d 76, 33 P.2d 834, 835.
Black's Law Dictionary Revised 4th Ed.-15
Claim Bond
Primarily in nature of forthcoming bond. Sanders v.
Farrier, Tex.Civ.App., 271 S.W.2d 293, 298.
Corporate Bonds
See Corporate Bonds.
Forthcoming Bond
A bond conditioned that a certain article shall be forth-
coming at a certain time or when called for. See Claim
bond.
General Mortgage Bond
A bond secured upon an entire corporate property, parts
of which are subject to one or more prior mortgages.
Heritable Bond
In Scotch law, a bond for a sum of money to which
is joined a conveyance of land or of heritage, to be held
by the creditor in security of the debt.
Income Bonds
Bonds on which interest is payable only when earned
and after payment of interest upon prior mortgages.
Indemnity Bond
See Indemnity Bond.
Liability Bond
One which is intended to protect the assured from lia-
bility for damages or to protect the persons damaged by
injuries occasioned by the assured as specified, when such
liability should accrue, and be imposed by law, as by a
court, as distinguished from an indemnity bond, whose
purpose is only to indemnify the assured against actual
loss by way of reimbursement for moneys paid or which
must be paid. Fenton v. Poston, 114 Wash. 217, 195 P.
31, 33.
Lloyd's Bond
A bond issued for work done or goods delivered and
bearing interest.
Municipal Bond
See Municipal bonds.
Official Bond
A bond given by a public officer, conditioned that he
shall well and faithfully perform all the duties of the office.
The term is sometimes made to include the bonds of execu-
tors, guardians, trustees, etc.
Railroad Aid Bonds
Bonds issued by municipal corporations to aid in the
construction of railways.
Redelivery Bond
A statutory bond given by a person in whose possession
attached property is found in order to regain possession of
the property. Burnham-Munger-Root Dry Goods Co. v.
Strahl, 102 Neb. 142, 166 N.W. 266.
Simple Bond
At common law, a bond without penalty; a bond for the
payment of a definite sum of money to a named obligee on
demand or on a day certain. Burnside v. Wand, 170 Mo.
531, 71 S.W. 337, 62 L.R.A. 427.
Single Bond
A deed whereby the obligor obliges himself, his heirs,
executors, and administrators, to pay a certain sum of
money to the obligee at a day named, without terms of
defeasance.
Straw Bond
A bond upon which is used either the names of fictitious
persons or those unable to pay the sum guaranteed; gen-
erally applied to insufficient bail bonds, improperly taken.
BONDAGE. Slavery; involuntary personal servi-
tude; captivity. In old English law, villenage,
villein tenure. 2 B1.Comm. 92.
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BONDED
BONDED INDEBTEDNESS. Indebtedness law-
fully contracted for corporate purposes, payable
from taxes on all property within municipality.
Bolton v. Wharton, 163 S.C. 242, 161 S.E. 454, 460.
BONDED WAREHOUSE. See Warehouse Sys-
tem.
BONDSMAN. A surety; one who has entered in-
to a bond as surety. The word seems to apply es-
pecially to the sureties upon the bonds of officers,
trustees, etc., while bail should be reserved for
the sureties on recognizances and bail-bonds. Ha-
berstich v. Elliott, 189 Ill. 70, 59 N.E. 557.
BONES GENTS. L. Fr. In old English law.
Good men (of the jury).
BONI HOMINES. In old European law. Good
men; a name given in early European jurispru-
dence to the tenants of the lord, who judged each
other in the lord's courts. 3 Bl.Comm. 349.
BONI JUDICIS EST AMPLIARE JURISDICTION-
EM. It is the part of a good judge to enlarge
(or use liberally) his remedial authority or juris-
diction. 1 C.B.N.S. 255; 4 Bingh.N.C. 233; 4 Scott
N.R. 229.
BONI JUDICIS EST AMPLIARE JUSTITIAM.
It is the duty of a good judge to enlarge or ex-
tend justice. 1 Burr. 304.
BONI JUDICIS EST JUDICIUM SINE DILA-
TIONE MANDARE EXECUTIONI. It is the duty
of a good judge to cause judgment to be executed
without delay. Co.Litt. 289.
BONI JUDICIS EST LITES DIRIMERE, NE LIS
EX LITE ORITUR, ET INTEREST REIPUBLICIFI
UT SINT FINES LITIUM. It is the duty of a
good judge to prevent litigations, that suit may
not grow out of suit, and it c4ncerns the welfare
of a state that an end be put to litigation. 4 Coke,
15b; 5 Coke, 31a.
BONIFICATION. The remission of a tax, partic-
ularly on goods intended for export, having the
same effect as a bonus or drawback. A device en-
abling a commodity to be exported and sold in
the foreign market as if it had not been taxed.
U. S. v. Passavant, 169 U.S. 16, 18 S.Ct. 219, 42 L.
Ed. 644.
BONIS CEDERE. In the civil law. To make a
transfer or surrender of property, as a debtor did
to his creditors. Cod. 7, 71.
BONIS NON AMOVENDIS. A writ addressed to
the sheriff, when a writ of error has been brought,
commanding that the person against whom judg-
ment has been obtained be not suffered to remove
his goods till the error be tried and determined.
Reg. Orig. 131.
BONITARIAN OWNERSHIP. In Roman law.
A species of equitable title to things, as distin-
guished from a title acquired according to the
strict forms of the municipal law; the property of
a Roman citizen in a subject capable of quiritary
property, acquired by a title not known to the civil
law, but introduced by the praetor, and protected
by his imperium or supreme executive power, e. g.,
where res mancipi had been transferred by mere
tradition. Poste's Gaius Inst. 187. See Quiritari-
an Ownership.
BONO ET MALO. A special writ of jail delivery,
which formerly issued of course for each particu-
lar prisoner. 4 Bl.Comm. 270.
BONUM DEFENDENTIS EX INTEGRA CAUSA;
MALUM EX QUOLIBET DEFECTU. The suc-
cess of a defendant depends on a perfect case;
his loss arises from some defect. 11 Coke, 68a.
BONUM NECESSARIUM EXTRA TERMINOS
NECESSITATIS NON EST BONUM. A good
thing required by necessity is not good beyond the
limits of such necessity. Hob. 144.
BONUS. A consideration or premium paid by a
company for a charter or other franchise or
privilege. Com. v. Transp. Co., 107 Pa. 112;
for privilege of carrying on corporate business,
United Gas Improvement Co. v. Burnet, C.C.A.3,
64 F.2d 957, 958. A consideration for what is re-
ceived, and advantage or benefit given in return
for a benefit received, or an inducement for con-
ferring a benefit. Church v. Winship, 175 La. 816,
144 So. 585, 586. "A definite sum to be paid at
one time, for a loan of money for a specified pe-
riod, distinct from and independently of the in-
terest." Association v. Wilcox, 24 Conn. 147. A
gratuity to which the recipient has no right to
make a demand. Walling v. Plymouth Mfg. Cor-
poration, C.C.A.Ind., 139 F.2d 178, 182. A pre-
mium or extra or irregular remuneration in con-
sideration of offices performed or to encourage
their performance. Willkie v. Commissioner of
Internal Revenue, C.C.A.6, 127 F.2d 953, 956. A
premium paid to a grantor or vendor. An ad-
vance royalty. Sneed v. Commissioner of Internal
Revenue, C.C.A.Tex., 119 F.2d 767, 770. An "arbi-
trary award" given without reference to qualifica-
tions for position. Thomas v. Kern, 280 N.Y. 236,
20 N.E.2d 738, 740. 'An extra consideration given
for what is received, or something given in addi-
tion to what is ordinarily received by, or strictly
due, the recipient. La Juett v. Coty Mach. Co.,
153 Misc. 410, 275 N.Y.S. 822. An increase in
salary or wages in contracts of employment. At-
torney General v. City of Woburn, 317 Mass. 465,
58 N.E.2d 746, 747. An offer to employees to pro-
cure efficient and faithful service. Roberts v.
Mays Mills, 184 N.C. 406, 114 S.E. 530, 532, 28 A.
L.R. 338; Duffy Bros. v. Bing & Bing, 217 App.
Div. 10, 215 N.Y.S. 755, 758. Any premium or ad-
vantage. Consideration or down payment for
mineral lease or transfer of oil lands. State Nat.
Bank of Corpus Christi v. Morgan, Tex.Civ.App.,
123 S.W.2d 1036, 1038; In re Levy, 185 Okl. 477, 94
P.2d 537, 539; Gift in recognition of officer's past
successful direction of corporate affairs. Thomas
v. Commissioner of Internal Revenue, C.C.A.La.,
135 F.2d 378, 379. "Interest" for the purpose of
'the usury law. Bowen v. Mt. Vernon Sa y . Bank,
70 App.D.C. 273, 105 F.2d 796, 797.
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BOOK
The word "bonus" may in its natural import imply a
gift or gratuity. Carson v. Olcott, 105 Or. 259, 209 P. 610,
611. No distinction may be made between a soldier's
"bonus" given for past service and a "pension," the one
being a reward for past military services payable at once,
and the other such a reward payable in installments. Peo-
ple v. Westchester County Nat. Bank of Peekskill, 231 N.Y.
465, 132 N.E. 241, 243, 15 A.L.R. 1344.
BONUS JUDEX SECUNDUM irEQUUM ET BON-
UM JUDICAT, ET 1EQUITATEM STRICTO JURI
PRIEFERT. A good judge decides according to
what is just and good, and prefers equity to strict
law. Co.Litt. 34.
BONUS STOCK. Technically, stock issued to the
purchasers of bonds as an inducement to them
to purchase bonds or loan money. California
Trona Co. v. Wilkinson, 20 Cal.App. 694, 130 P.
190, 194.
BONY. Slate and 'other refuse from mine. Mak-
simshuk v. Union Collieries Co., 128 Pa.Super. 86,
193 A. 669, 671, 672, 673.
BOODLE. Usually applied to designate the mon-
ey held to be paid or paid as a bribe for corrupt of-
ficial action. Boehmer v. Detroit Free Press Co.,
94 Mich. 7, 9, 53 N.W. 822, 823, 34 Am.St.Rep.
318.
BOODLING. In the slang of the day, corrupt leg-
islative practices and corrupt influences affecting
legislation. Julian v. Kansas City Star Co., 209
Mo. 35, 107 S.W. 496, 501.
BOOK. An assembly or concourse of ideas ex-
pressed in words. U. S. v. One Obscene Book En-
titled "Married Love", D.C.N.Y., 48 F.2d 821, 823.
A literary composition which is printed; a printed
composition bound in a volume. Scoville v. To-
land, 21 Fed.Cas. 864. The largest subdivisions of
a treatise or other literary composition.
A bound volume consisting of sheets of paper, not
printed, containing manuscript entries; such as a mer-
chant's account-books, dockets of courts, etc. A manu-
script as a "book". In re Beecher's Estate, 17 Pa.C.C.R.
161; 8 L.J.Ch. 105. "Financial statement" of bank
"book". State v. Cloutier, 181 La. 222, 159 So. 330.
Minute book of bank as "book." Lewis v. U. S., C.C.A.
Okl., 22 F.2d 760, 764. Papers prepared in the progress of
a cause, though entirely written, and not at all in the
book form, such as demurrer-books, error-books, paper-
books, etc. Photographs as books. Marietta Mfg. Co. v.
Hedges-Walsh-Weidner Co., 9 W.W.Harr. 511, 2 A.2d 922,
927. Records made on loose sheets as book. Town of Ben-
nington v. Booth, 101 Vt. 24, 140 A. 157, 159, 57 A.L.R. 156.
X-ray pictures as books. Whetsel v. Shaw, 343 Pa. 182, 22
A.2d 751, 753.
In copyright law, the term may include a pamphlet, a
magazine, a collection of blank forms, or a single sheet of
music or of ordinary printing. U. S. v. Bennett, 24 Fed.
Cas. 1,093; M. Witmark & Sons v. Standard Music Roll
Co., N.J., 221 F. 376, 380, 137 C.C.A. 184. A term which
distinguishes writings from such other copyrightable sub-
jects. Sebring Pottery Co. v. Steubenville Pottery Co.,
D.C.Ohio, 9 F.Supp. 384, 386.
Book Account
A detailed statement, in the nature of debits
and credits between persons; an' account or
record of debit and credit kept in a book. Taylor
v. Horst, 52 Minn. 300, 54 N.W. 734; Wright
v. Loaiza, 177 Cal. 605, 171 P. 311. A book
in which a detailed history of business transac-
tions is entered; a record of goods sold or
services rendered; a statement in detail of the
transactions between parties. Tillson v. Peters,
41 Cal.App.2d 671, 107 P.2d 434, 438.
Entire account between parties at time action Is com-
menced. Gardner v. Rutherford, 57 Cal.App.2d 874, 136
P.2d 48, 52. Entries on loose pages. Foothill Ditch Co. v.
Wallace Ranch Water Co., 25 Cal.App.2d 555, 78 P.2d 215,
220.
Book Debt
The words "book debt" include goods sold and
delivered, and work, labor, and services per-
formed, the evidence of which consists of entries
in an original book. Hamill v. O'Donnell, 2 Miles,
Pa., 102.
Book of Acts
A term applied to the records of a surrogate's
court. 8 East, 187.
Book of Adjournal
In Scotch law. The original records of criminal
trials in the court of justiciary.
Book of Original Entries
A book in which a merchant enters from day
to day a record of his transactions. McKnight v.
Newell, 207 Pa. 562, 57 A. 39. A book kept for
charging goods sold and delivered, in which the
entries are made contemporaneously with the de-
livery of the goods. United Grocery Co. v. J. M.
Dannelly & Son, 93 S.C. 580, 77 S.E. 706, Ann.Cas.
1914D, 489. A book in which a detailed history of
business transactions is entered. Nicola v. U. S.,
C.C.A.Pa., 72 F.2d 780, 783.
Distinguished from such books as a ledger. But see
Cassil v. Carter, 98 Okl. 49, 223 P. 685, 686. Workmen's
slips for repairs done on automobiles, although not bound
in book form. H. W. Emeny Auto Co. v. Neiderhauser,
175 Iowa 219, 157 N.W. 143, 144.
Book of Rates
An account or enumeration of the duties or tar-
iffs authorized by parliament. 1 Bl.Comm. 316.
Book of Responses
In Scotch law. An account which the directors
of the chancery kept to enter all non-entry and
relief duties payable by heirs who take precepts
from chancery.
Book Value
As applied to stock, the" value shown by deduct-
ing liabilities and other matters required to be de-
ducted from assets, Elhard v. Rott, 36 N.D. 221,
162 N.W. 302; Gurley v. Woodbury, 177 N.C. 70,
97 S.E. 754, 756; the value determined by net
profits or deficit, Davis v. Coshnear, 129 Me. 334,
151 A. 725, 727. The value found by adding to par
value the plus value of surplus, In re Fisher's Es-
tate, 344 Pa. 607, 26 A.2d 192, 196. As applied to
finance, the value of anything as shown in books
of account. Davis v. Coshnear, 129 Me. 334, 151
A. 725, 727.
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BOOK
"Book value" of a business is based upon actual costs of
a stock of merchandise and accounts on hand less deprecia-
tion. Mills v. Rich, 249 Mich. 489, 229 N.W. 462, 463.
"Book value" of building and loan stock is proportionate
amount of net assets applicable. Thirteenth Ward Build-
ing & Loan Ass'n of Newark v. Weissberg, 115 N.J.Eq. 487,
170 A. 662, 665, 98 A.L.R. 134.
Bookland
In English law. Land, also called "charter-
land," which was held by deed under certain rents
and free services, and differed in nothing from
free socage land. 2 Bl.Comm. 90.
Books
All the volumes which contain authentic reports
of decisions in English courts, from the earliest
times to the present, are called, par excellence,
"The Books." Wharton.
Books of Account
Books in which merchants, traders, and business
men generally keep their accounts. Colbert v.
Piercy, 25 N.C. 80. Entries made in the regular
course of business. Nicola v. U. S., C.C.A.Pa., 72
F.2d 780, 783. Entries on loose leaves or cards.
12 Okl.St.Ann. § 501. Maney , v. Cherry, 170 Okl.
469, 41 P.2d 82, 83. Serial, continuous, and perma-
nent memorials of business and affairs. Cudahy
Packing Co. v. U. S., C.C.A.I11., 15 F.2d 133, 136.
Broderick v. Adamson, 159 Misc. 634, 288 N.Y.S.
688, 696.
Pad slips, cash register items, and adding machine slips,
pinned together and preserved. Home Ins. Co. v. Flewel-
len, Tex.Civ.App., 221 S.W. 630, 631. A diary. State v.
Coffey, 8 Wash.2d 504, 112 P.2d 989, 991. A ledger of
accounts. In re Anderson, D.C.N.Y., 35 F.Supp. 717, 719.
A memorandum. Brett v. Dean, 239 Ala. 675, 196 So. 881,
883. A pay-roll book. Hirsch v. Automatic Canteen Co.
of America, 296 Ill. App. 47, 15 N.E.2d 888.
Books of Bank
Stock books of bank. Broderick v. Adamson,
159 Misc. 634, 288 N.Y.S. 688, 696.
Books of Corporations
"Books, records, and papers" of corporations as
interchangeable terms. Birmingham News v.
State, 207 Ala. 440, 93 So. 25, 26. Whatever is
kept as written evidence of official doings and
business transactions. First Nat. Bank of Colo-
rado Springs v. Holt, Mo.App., 158 S.W.2d 229, 231.
Books of Tax Receiver
Tax digests, copies of which must be placed in
hands of state revenue commissioner, tax collec-
tor, etc. Cady v. State, 198 Ga. 99, 31 S.E.2d 38,
43.
Face of Book
See Face of Book.
Office Book
See Office.
Reference Books
Books to refer to. State v. Innes, 89 Kan. 168,
130 P. 677, 679,
BOOKED. Engaged, destined, bound to promise
or pledge oneself to make an engagement. Mente
& Co. v. Heller, 99 N.J.Law, 475, 123 A. 755, 756.
BOOKING CONTRACT. A contract made by
agents who procure contracts for appearance of
acts and actors in theaters. Hart v. B. F. Keith
Vaudeville Exchange, C.C.A.N.Y., 12 F.2d 341, 342,
47 A.L.R. 775.
BOOKMAKER. A professional betting man, es-
pecially one connected with the turf. City of
Portland v. Duntley, Or., 203 P.2d 640, 644.
BOOKMAKING. Originally, the collection of
sheets of paper or other substances on which en-
tries could be made, either written or printed.
People ex rel. Lichtenstein v. Langan, 196 N.Y.
260, 89 N.E. 921, 922, 25 L.R.A.,N.S., 479, 17 Ann.
Cas. 1081. The term now commonly denotes the
recording or registering of bets or wagers on any
trial or contest of speed or power of endurance or
selling pools. People of State of New York v.
Bennett, C.C.N.Y., 113 Fed. 515, 516. A species of
betting on horse races. Ex parte Hernan, 45
Tex.Cr.R. 343, 77 S.W. 225, 226. The bets are
booked or a record kept of them in a book. Spies
v. Rosenstock, 87 Md. 14, 39 A. 268, 269.
BOOKMAKING ESTABLISHMENT. Where wag-
ers are made on horse races being run at tracks
in various parts of United States. Albright v.
Karston, 206 Ark. 307, 176 S.W.2d 421, 422.
BOOM. An inclosure formed by piers and a chain
of spars to collect or store logs or timber. Pow-
ers' Appeal, 125 Pa. 175, 17 A. 254, 11 Am.St.Rep.
882; Gasper v. Heimbach, 59 Minn. 102, 60 N.W.
1080. Spars or logs and chains or other fixtures
used to keep them in place. Rollins v. Clay, 33
Me. 132, 138.
BOOM COMPANY. A company formed to im-
prove streams for floating of logs by booms and
other contrivances, and to run, drive, boom and
raft logs.
BOOMAGE. A charge on logs for use of a boom
in collecting, storing, or rafting them. Lumber
Co. v. Thompson, 83 Miss. 499, 35 So. 828. A
right of entry on riparian lands to fasten booms
and boom sticks. Farrand v. Clarke, 63 Minn. 181,
65 N.W. 361.
BOON DAYS. In English law. Certain days in
the year (sometimes called "due days") on which
tenants in copyhold were obliged to perform cor-
poral services for the lord. Whishaw.
BOOSTED FIRE. A fire wherein some inflam-
mable substance other than that of which the
building was constructed or which it contained
contributed to its burning and spreading. State v.
Lytle, 214 Minn. 171, 7 N.W.2d 305, 309.
BOOT, or BOTE. An old Saxon word, equivalent
to "estovers."
BOOTHAGE. See Bothagitlm.
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BORN
BOOTING, or BOTING, CORN. Certain rent corn,
anciently so called. Cowell.
BOOTLEGGER. A seller of whisky. Medlock v.
State, 79 Tex.Cr.R. 322, 185 S.W. 566, 568. One
engaged in unlawful disposition of liquor. Hath-
away v. Benton, 172 Iowa 299, 154 N.W. 474, 476.
One who sells liquor on the sly. Knothe v. State,
115 Neb. 119, 211 N.W. 619, 621.
BOOTLEGGING. A popular designation for the
use, possession, or transportation of liquor in vio-
lation of the law, Commonwealth v. Cicere, 282
Pa. 492, 128 A. 446, 448, importing the peddling
and illegal sales of intoxicating liquor, Lamar v.
State, 190 Ind. 235, 130 N.E. 114.
BOOTSTRAP DOCTRINE. The decision of a
court on a special as well as a general appearance
that it has jurisdiction is not subject of collateral
attack but is res judicata. Peri v. Groves, 183
Misc. 579, 50 N.Y.S.2d 300, 308.
BOOTY. Property captured from the enemy in
war, on land. U. S. v. Bales of Cotton, 28 Fed.
Cas. 302.
BOOZE. Intoxicating liquor. Tennant v. F. C.
Whitney & Sons, 133 Wash. 581, 234 P. 666, 669.
BORD. An old Saxon word, signifying a cottage;
a house; a table.
BORD-BRIGCH. In Saxon law. A breach or vio-
lation of suretyship; pledge-breach, or breach of
mutual fidelity.
BORD-HALFPENNY. A customary small toll
paid to the lord of a town for setting up boards,
tables, booths, etc., in fairs or markets.
BORDAGE. In old English law. A species of
base tenure, by which certain "bord lands" were
anciently held in England; the service was that
of keeping the lord in small provisions.
BORDARIA. A cottage.
BORDARII, or BORDIMANNI. In old English
law. Tenants of a less servile condition than the
villani, who had a bond or cottage, with a small
parcel of land, on condition they should supply the
lord with small provisions. Spelman.
BORDER WARRANT. A process granted by a
judge ordinary, on either side of the border be-
tween England and Scotland, for arresting the
person or effects of a person living on the oppo-
site side, until he find security, judicio sisti. Bell.
BORDEREAU. In French law. A note enumerat-
ing the purchases and sales which may have been
made by a broker or stockbroker. This name
is also given to the statement given to a banker
with bills for discount or coupons to receive.
Arg.Fr.Merc.Law, 547. A detailed statement of
account; a summary of an instrument.
BORDLANDS. The demesnes which the lords
keep in their hands for the maintenance of their
board or table. Cowell. Also lands held in bond-
age. Lands which the lord gave to tenants on con-
dition of supplying him with small provisions, etc.
BORDLODE. A service anciently required of ten-
ants to carry timber out of the woods of the lord
to his house; or it is said to be , the quantity of
food or provision which the bordarii or bordmen
paid for their bordlands. Jacob.
BORDSERVICE. A tenure of bordlands.
BOREL-FOLK. Country people; derived from
the French bourre, (Lat. floccus,) a lock of wool,
because they covered their heads with such stuff.
Blount.
BORG. In Saxon law. A pledge, pledge giver, or
surety. The name given among the Saxons to the
head of each family composing a tithing or decen-
nary, each being the pledge for the good conduct
of the others. Also the contract or engagement
of suretyship; and the pledge given.
BORGBRICHE. A breach or violation of surety-
ship, or of mutual fidelity. Jacob.
BORGESMON. In Saxon law. The name given
to the head of each family composing a tithing.
BORGH OF HAMHALD. In old Scotch law. A
pledge or surety given by the seller of goods to the
buyer, to make the goods forthcoming as his own
proper goods, and to warrant the same to him.
Skene.
BORN. A child en venire sa mere. Merrill v.
Winchester, 120 Me. 203, 113 A. 261, 264. If an
infant is born dead or at such an early stage of
pregnancy as to be unable to live, it is to be con-
sidered as never born. Marsellis v. Thalhimer, 2
Paige, Ch., N.Y., 35.
BORN ALIVE. Where child, although it never
cried, breathed and its heart beat some minutes,
it was "born alive." Sanford v. Getman, 124 Misc.
80, 206 N.Y.S. 865. A child never heard to cry, but
whose heart beats could be heard, though no
respiration could be induced, was "born alive." In
re Union Trust Co., 89 Misc. 69, 151 N.Y.S. 246.
253.
BORN OUT OF WEDLOCK. Children whose par-
ents are not, and have not been, married to each
other regardless of marital status of either parent
with respect to another. State v. Coliton, 73 N.D.
582, 17 N.W.2d 546, 549, 552, 156 A.L.R. 1403.
BORN OUTSIDE THE UNITED STATES. Where,
at time of birth of children born in the United
States, their father was a duly accredited diplo-
matic representative of the French Republic to the
United States, they became subject to the jurisdic-
tion of France, and were "born outside of the
United States" within the naturalization provisions
of section 315 of the Nationality Act of 1940, 8
U.S.C.A. § 715. In re Thenault, D.C.D.C., 47 F.
Supp. 952, 953.
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BOROUGH
BOROUGH.
In English Law
A town, a walled town. Co.Litt. 108b. A town
of note or importance; a fortified town. Cowell.
An ancient town. Litt. 164. A corporate town
that is not a city. Cowell. An ancient town, cor-
porate or not, that sends burgesses to parliament.
Co.Litt. 109a; 1 Bl.Comm. 114, 115. A city or
other town sending burgesses to parliament. 1
Steph.Comm. 116. In its more modern English
acceptation, a town or city or place organized for
government.
A parliamentary borough is a town which returns one or
more members to parliament.
In Scotch Law
A corporate body erected by the charter of the
sovereign, consisting of the inhabitants of the
territory erected into the borough. Bell.
In American Law
In Pennsylvania, Connecticut and New Jersey,
a part of a township having a charter for mu-
nicipal purposes. Southport v. Ogden, 23 Conn.
128. See, also, 1 Dill.Mun.Corp. § 41, n.
A territorial fraction of a city having certain powers
with reference to local concerns. Crose v. City of Los
Angeles, 175 Cal. 774, 167 P. 386, 387. "Village" and
"borough" as duplicate or cumulative names of the same
thing. Brown v. State, 18 Ohio St. 496.
Borough Courts
In English law. Private and limited tribunals,
held by prescription, charter, or act of parliament,
in particular districts for the convenience of the
inhabitants, that they may prosecute small suits
and receive justice at home.
Borough English -
A custom prevalent in some parts of England,
by which the youngest son inherits the estate in
preference to his older brothers. 1 Bl.Comm. 75.
The custom is said by Blackstone to have been derived
from the Saxons, and to have been so called in distinction
from the Norman rule of descent; 2 Bla.Comm. 83.
Borough Fund
In English law. The revenues of a municipal
borough from rents and produce of its land,
houses, and stocks and supplemented where nec-
essary by a borough rate.
Borough-Heads
Borough-holders, bors-holders, or burs-holders.
Borough-Reeve
The chief municipal officer in towns unincorpo-
rated before the municipal corporations act, 5 &
6 Wm. IV, c. 76.
Borough Sessions
Courts of limited criminal jurisdiction, estab-
lished in English boroughs under the municipal
corporations act.
Pocket Borough
A borough entitled to send a representative to
parliament, in which a single individual could en-
tirely control the election.
BORRASCA. Absence of profit, or not enough
profit to pay the cost of operation, of a placer
mine. Ballagh v. Williams, 50 Cal.App.2d 10, 122
P.2d 343, 344.
BORROW. To solicit and receive from another
any article of property or thing of value with the
intention and promise to repay or return it or its
equivalent.
Strictly speaking, borrowing implies a gratuitous loan.
Carter-Mullaly Transfer Co. v. Angell, Tex.Civ.App., 181
S. W. 237, 238. But money may be "borrowed" on an
agreement to pay interest for its use. Legal Tender Cases,
110 U.S. 421, 4 S.Ct. 122, 28 L.Ed. 204. Though the word
is often used in the sense of returning the thing borrowed
in specie, where money is borrowed, the identical money
loaned is not to be returned. In a broad sense the term
means a contract for the use of money. State v. School
Dist., 13 Neb. 88, 12 N.W. 812. The term may be used to
express the idea of receiving something from another for
one's own use, to appropriate. Finch v. McClellan, 77 Ind.
App. 533, 130 N.E. 13, 15. The word "loan" is the correla-
tive of "borrow." U. S. v. Warn, D.C.Idaho, 295 F. 328,
330. The term when used in connection with lending an
automobile chauffeur does not imply that the owner surren-
ders control over him. Hooper v. Brawner, 148 Md. 417,
129 A. 672, 677. Compare Henderson v. State, 75 Fla. 464,
78 So. 427, 428, holding that an indictment alleging that
defendant "did borrow" a shotgun sufficiently alleged that
defendant received the shotgun into his possession. The
right to borrow money as applied to a municipal corpora-
tion is a power to create indebtedness. Jones v. Board of
Education of Guilford County, 185 N.C. 303, 117 S.E. 37, 40.
Agreement by building and loan association, in purchas-
ing residence property on which it had a first mortgage, to
assume a second mortgage. Gardner v. Johns, 64 Ohio
App. 229, 28 N.E.2d 691, 694.
"Borrow" has been held the reciprocal action with "to
lend".  Bank of United States v. Drapkin & Goldberg
Const. Co., City Ct., N.Y., 11 N.Y.S.2d 334, 336. Dirt taken
from plots of ground near sides of highway embankment.
State v. Smith, 167 La. 301, 119 So. 56, 61. Earth brought
from outside highway location and used for embankments.
Barry v. Duffin, 290 Mass. 398, 195 N.E. 511, 514.
BORROW PIT. A pit or bank from which ma-
terial is taken for use in filling or embanking.
Haynes v. Jones, 91 Ohio St. 197, 110 NE. 469, 470.
BORROWE. In old Scotch law. A pledge.
BORROWED CAPITAL. Moneys due by corpo-
ration to another corporation used as its capital.
State v. Banana Selling Co., 185 La. 668, 170 So.
30, 32.
Amount standing on books to personal credit of stock-
holders credited without restriction or limitation on stock-
holders as to manner or time of payment to them of respec-
tive accounts. Weed & Bro. v. U. S., Ct.C1., 38 F.2d 935,
940. Dividends declared by corporation but not paid dur-
ing taxable year. Bulger Block Coal Co. v. U. S., Ct.Ci.,
48 F.2d 675, 677; Southport Mill v. Commissioner of In-
ternal Revenue, C.C.A.La., 26 F.2d 17. Payment of losses
sustained by corporation by its principal stockholder.
State v. Mayer Sugar & Molasses Co., 204 La. 742, 16 So.2d
251, 253.
BORROWED MONEY OR PROPERTY. Notes
and bonds given in payment of assets. Coal Co.
v. United States, C.C.A.W.Va., 137 F.2d 948, 953.
Credit by bank to payee's account of amount of
customer's notes taken in lieu of cash. Depart-
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BOTTOMRY
ment of Treasury (Gross Income Tax Division)
v. Advance Paint Co., 222 Ind. 294, 53 N.E.2d 59.
Profits loaned by partners to partnership. Nye v.
U. S., C.C.A.Mass., 84 F.2d 457, 462.
BORROWER. He to whom a thing is lent at his
request.
Under usury •statute, one having the use of money by
forbearance of his creditor, or any person who secures the
use of money in any way upon an excessive consideration,
Law, Clark & Co. v. Mitchell, 200 Ala. 565, 76 So. 923, 924;
the party who is bound by original contract to pay loan,
Faber v. Siegel, 286 N.Y.S. 974, 158 Misc. 722; the pur-
chaser of land subject to usurious mortgage and subsequent
mortgagees, Hatch v. Baker, 249 N.Y.S. 215, 217, 139 Misc.
717; the indorser of note who received no part of money
advanced and who was mere surety, Faber v. Siegel, 286
N.Y.S. 974, 158 Misc. 722.
BORROWING POWER. Signifies only an un-
funded indebtedness. Bond v. Cowan, 272 Mich.
296, 261 N.W. 331.
BORROWINGS. Checks by bank against second
bank anti honored while items deposited.by former
were in process of collection. Guaranty by bank
of transaction where another bank issued letter of
credit for first bank's customer. Indebtedness
represented by notes given by bank when borrow-
ing money. Overdrafts by bank maintaining
checking account with another bank. Schramm
v. Bank of California Nat. Ass'n, 143 Or. 546, 20
P.2d 1093, 1096.
BORSHOLDER. In Saxon law. The borough's
ealder, or headborough.
BOSCAGE. In English law. The food which wood
and trees yield to cattle; browsewood mast, etc.
Spelman. An ancient duty of wind-fallen wood in
the forest. Manwood.
BOSCARIA. Wood-houses, or ox-houses.
BOSCUS. Wood; growing wood of any kind, large
or small, timber or coppice. Cowell; Jacob.
BOSTON CREAM PIE. Two layers of sponge
cake with a layer of a sort of cream custard.
Lohse v. Coffey, D.C.Mun.App., 32 A.2d 258, 259.
BOTE, BOT. In old English law. A recompense
or compensation, or profit or advantage. Also
reparation or amends for any damage done. Nec-
essaries for the maintenance and carrying on of
husbandry. An allowance; the ancient name for
estovers.
House-bote is a sufficient allowance of wood
from off the estate to repair or burn in the house,
and sometimes termed "fire-bote ;" plow-bote and
cart-bote are wood to be employed in making and
repairing all instruments of husbandry; and hay-
bote or hedge-bote is wood for repairing of hays,
hedges, or fences. The word also signifies repara-
tion for any damage or injury done, as man-bote,
which was a compensation or amends for a man
slain, etc.
BOTELESS. In old English law. Without amends;
without the privilege of making satisfaction for
a crime by a pecuniary payment; without relief
or remedy. Cowell.
BOTH. The one and the other; the two without
the exception of either. Lower Indian Creek
Drainage and Levee Dist. of Cass County v.
Vallery, 343 Ill. 49, 174 N.E. 842, 843. All of two,
United States v. Bachman, D.C.Pa., 246 F. 1009,
1011. The term likewise has a meaning which
excludes more than two mentioned subject mat-
ters. In re Turner's Estate, 171 Misc. 78, 11 N.Y.
S.2d 800, 802.
"Either," may mean "both." Kibler v. Parker, 191 Ark.
475, 86 S.W.2d 925, 926.
Both Real and Personal
Use in will to indicate all of testatrix' property. Hoff-
man v. Hoffman, 61 Ohio App. 371, 22 N.E.2d 652, 654.
BOTHA. In old English law. A booth, stall, or
tent to stand in, in fairs or markets. Cowell.
BOTHAGIUM, or BOOTHAGE. Customary dues
paid to the lord of a manor or soil, for the pitch-
ing or standing of booths in fairs or markets.
BOTHNA, or BUTHNA. In old Scotch law. A
park where cattle are inclosed and fed. Bothna
also signifies a barony, lordship, etc. Skene.
BOTILER OF THE KING. An officer who pro-
vided the king's wines. By virtue of his office,
he might choose, .out of every ship laden with
wines, one cask before the mast, and one behind.
25 Edw. III, st. 5, c. 21. Wharton. Cf. Butlerage.
BOTTELLARIA. A buttery or cellar, in which
bottles or butts of wine and other liquors are
deposited. Wharton.
BOTTLE. An open mouthed vessel, with a neck
with an aperture which may be closed, capable of
containing liquids. Fieldcrest Dairies v. City of
Chicago, D.C.Ill., 35 F.Supp. 451, 452.
BOTTOM HOLE CONTRACT. When operator
drills a well to a certain depth, the owners or per-
sons for whom the well is drilled will pay a certain
sum. Barnett v. Kemerer, 179 Okl. 588, 66 P.2d
1053, 1055.
BOTTOM LAND. As used in a contract to convey
means low land formed by alluvial deposits along
the river, low-lying ground, a dale, valley, or inter-
vale. Lexington & E. Ry. Co. v. Williams, 183 Ky.
343, 209 S.W. 59, 62.
BOTTOMAGE. L. Fr. Bottomry.
BOTTOMRY. In maritime law. A contract by
which the owner of a ship borrows for the use,
equipment, or repair of the vessel, and for a
definite term, and pledges the ship (or the keel or
bottom of the ship, pars pro toto) as security;
it being stipulated that if the ship be lost in the
specified voyage, or during the limited time, by
any of the perils enumerated, the lender shall lose
his money. Carrington v. The Pratt, 18 How. 63,
15 L.Ed. 267; Braynard v. Hoppock, 7 Bosw.N.Y.
157.
A contract by which a ship or its freightage is hypothe-
cated as security for a loan, which is to be repaid only in
case the ship survives a particular risk, voyage, or period.
Civ.Code Cal. § 3017. The contract usually in form a bond.
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BOTTOMRY
When the loan is not made on the ship, but on the goods
on board, and which are to be sold or exchanged in the
course of the voyage, the borrower's personal responsibili-
ty is deemed the principal security for the performance of
the contract, which is therefore called "respondentia."
BOTTOMRY BOND. The instrument embodying
the contract or agreement of bottomry. A con-
tract for a loan on the bottom of the ship, at an
extraordinary interest, upon maritime risks, to be
borne by the lender for a voyage, or for a definite
period. The Grapeshot, 9 Wall. 135, 19 L.Ed.
651.
BOTULISM. Food poisoning caused by a toxin
which is produced by Clostridium (bacillus) botu-
linum. Armour & Co. v. Leasure, 177 Md. 393, 9
A.2d 572, 575.
BOUCHE, Fr. The mouth. An allowance of
provision. Avoir bouche a court; to have an
allowance at court; to be in ordinary at court;
to have meat and drink scotfree there. Blount;
Cowell.
BOUCHE OF COURT, or BUDGE OF COURT.
A certain allowance of provision from the king to
his knights and servants, who attended him on any
military expedition.
BOUGH OF A TREE. In feudal law. A symbol
which gave seisin of land, to hold of the donor in
capite.
BOUGHT. The word "bought" implies a completed
transaction, a vesting of the right of title to and
possession of the property sold, Bull v. Morrison,
Tex.Civ.App., 241 S.W. 561, 562, and also imports
a valuable consideration, Grimes v. State, 32 Ga.
App. 541, 123 S.E. 918.
BOUGHT AND SOLD NOTES. A note of the
sale by a broker employed to buy and sell goods
is called a "sold note," and a like note to the seller
is called a "bought note." Avondale Mills v.
Benchley Bros., 244 Mass. 153, 138 N.E. 586, 589.
BOULEVARD. The word originally indicated a
bulwark or rampart, and afterwards applied to a
public walk or road on the site of a demolished
fortification, and is now employed in same sense
as public drive. A street or highway with park-
like appearance; or one specially designed for
pleasure walking or driving. Newbold v. Brotzge,
209 Ky. 218, 272 S.W. 755, 756; Chaplin v. Kansas
City, 259 Mo. 479, 168 S.W. 763, 765. A wide street,
or a street encircling a town, with sides or center
for shade trees, etc. State ex rel. Copland v.
City of Toledo, 75 Ohio App. 378, 62 N.E.2d 256,
258. It is adapted and set apart for purposes of
ornament, exercise, and amusement. See, also,
Avenue. A "public way", City of Medford v.
Metropolitan District Commission, 303 Mass. 537,
22 N.E.2d 110, 111.
It is not technically a street, avenue, or highway. Howe
v. Lowell, 171 Mass. 575, 51 N.E. 536; Park Com'rs v.
Farber, 171 Ill. 146, 49 N.E. 427. "Street" and "boulevard"
may be interchangeable. City of Fargo v. Gearey, 33 N.D.
64, 156 N.W. 552, 555.
BOUNCER. A term used to designate persons
employed to preserve the peace in establishments
• such as night clubs and other places of amusement
where people indulge in dancing, drinking and in
gambling. Moore v. Blanchard, La.App., 35 So.2d
667, 669.
BOUND. As an adjective, denotes the condition of
being constrained by the obligations of a bond or
a covenant.
In the law of shipping, "bound to" or "bound for" de-
notes that the vessel spoken of is intended or designed to
make a voyage to the place named. U. S. v. Bengochea,
C.C.A.Fla., 279 F. 537, 541.
"Bound" and "concluded" as synonymous. McKinnon v.
Chenoweth, 176 Or. 74, 155 P.2d 944, 954.
As a noun, denotes a limit or boundary, or a line inclos-
ing or marking off a tract of land. In the phrase "metes
and bounds," denotes the natural or artificial marks which
indicate their beginning and ending. "Bound" may signi-
fy the limit itself, and "boundary" designate a visible
mark which indicates the limit. "Bound" and "duty" as
synonymous. Essenpreis v. Elliott's Department Store Co.,
Mo.App., 37 S.W.2d 458, 462.
BOUND BAILIFFS. In English law, Sheriffs'
officers are so called, from their being usually
bound to the sheriff in an obligation with sureties,
for the due execution of their office. 1 Bl.Comm.
345, 346.
BOUNDARY. Every separation, natural or arti-
ficial, which marks the confines or line of division
of two cdntiguous estates. Civ.Code La. art. 826.
Limits or marks of enclosures if possession be
without title, or the boundaries or limits stated
in title deed if possession be under a title. Snelling
v. Adair, 196 La. 624, 199 So. 782, 787.
"At the entrance" and "at the boundary" as synony-
mous. McGough v. Hendrickson, 58 Cal.App.2d 60, 136 P.
2d 110, 114. Banks or confines at ordinary high water as
boundary of water course. Beck v. Kulesza, 4 W.W.Harr.,
Del., 559, 156 A. 346, 349. Meander line as "boundary".
United States v. Elliott, C.C.A.Okl., 131 F.2d 720, 724.
Boundary Suit
Trespass to try title in which every matter in
dispute would be determined by determination of
boundary line. Southern Pine Lumber Co. v.
Whiteman, Tex.Civ.App., 104 S.W.2d 635, 637.
Case of Boundary
One where the location of the boundary is the
determining question of the entire case. West
Lumber Co. v. Goodrich, 113 T. 14, 223 S.W. 183,
191; Maxfield v. E. L. Sterling & Sons, 110 Tex.
212, 217 S.W. 937.
Natural Boundary
Any formation or product of nature which may
serve to define and fix one or more of the lines
inclosing an estate or piece of property. See
Peuker v. Canter, 62 Kan. 363, 63 P. 617.
Private Boundary
An artificial boundary set up to mark the
beginning or direction of a boundary line.
Public Boundary
A natural boundary; a natural object or land-
mark used as a boundary or as a beginning point
for a boundary line.
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BOUNDED TREE. A tree marking or standing
at the corner of a field or estate.
BOUNDERS. In American law. Visible marks
or objects at the ends of the lines drawn in sur-
veys of land, showing the courses and distances.
Burrill.
BOUNDS. The external or limiting lines, either
real or imaginary, of any object or space; that
which limits or circumscribes. Stone v. Wauke-
gan, C.C.A. 7, 205 F. 495, 496.
Contract as meant by "bounds". City of Elkins v. Stick-
ley, 114 W.Va. 103, 170 S.E. 902, 903. Edges of road as
"bounds of the highway". Decker v. Roberts, 126 Conn.
478, 12 A.2d 541, 543. Trespass committed by a person who
excavates minerals under-ground beyond boundary of his
land as "working out of bounds."
BOUNTY. A gratuity, or an unusual or additional
benefit conferred upon, or compensation paid to, a
class of persons. Iowa v. McFarland, 110 U.S.
471, 4 S.Ct. 210, 28 L.Ed. 198; In re Hoag, D.C.
N.Y., 227 F. 478, 479. A premium given or offered
to enlisted men to induce enlistment into public
service. Abbe v. Allen, 39 How.Prac., N.Y., 488.
An amount appropriated by Congress to repay the city
for rental value of land taken for navy yard during Civil
War as not a bounty. Moyers v. City of Memphis, 135
Tenn. 263, 186 S. W. 105, 113, Ann.Cas.1918C, 854.
Bounty is the appropriate term where services or action
of many persons are desired, and each who acts upon the
offer may entitle himself to the promised gratuity. Re-
ward is more proper in the case of a single service, which
can be only once performed, and therefore will be earned
only by the person or co-operative persons who succeed
while others fail. Ingram v. Colgan, 106 Cal. 113, 38 P.
315, 28 L.R.A. 187, 46 Am.St.Rep. 221. Bonus, suggests the
idea of a gratuity to induce a money transaction between
individuals. Abbott.
Bounty Lands
Portions of the public domain given or donated
as a bounty for services rendered, chiefly for
military service. See 43 U.S.C.A. § 791.
Bounty of Queen Ann
A name given to a royal charter, which was
confirmed by 2 Anne, c. 11, whereby all the reve-
nue of first-fruits and tenths was vested in trus-
tees, to form a perpetual fund for the augmenta-
tion of poor ecclesiastical livings. Wharton.
BOURDON TUBE. A pressure-responsive device
comprising a hollow tubular member. James P.
Marsh Corporation v. United States Gauge Co., D.
C.Ill., 42 F.Supp. 998, 1001.
BOURG.
In old French law. An assemblage of houses
surrounded with walls; a fortified town or village.
In old English law. A borough, a village.
BOURGEOIS. The inhabitant of a Bourg. A per-
son entitled to the privileges of a municipal corpo-
ration; a burgess. A member of the middle
classes. People v. Gitlow, 234 N.Y. 132, 136 N.E.
317, 322.
BOURSE, Fr. An exchange; a stock-exchange.
BOURSE DE COMMERCE. In the French law.
An aggregation, sanctioned by government, of
merchants, captains of vessels, exchange agents,
and courtiers, the two latter being nominated by
the government, in each city which has a bourse.
Brown.
BOUSSOLE. In French marine law. A compass;
the mariner's compass.
BOUWERYE. Dutch. In old New York law. A
farm; a farm on which the farmer's family
resided.
BOUVVIVIEESTER (also BOUWMASTER). Dutch.
In old New York law. A farmer.
BOVARIUS, adj. Lat. Relating to horned cattle.
The Forum Bovarium was the cattle market at
Rome, near the Circus Maximus. It had a large
brazen statue of an ox.
BOVATA TERME. As much land as one ox can
cultivate. Said by some to be thirteen, by others
eighteen, acres in extent. Skene; Spelman; Co.
Litt. 5a. See Carucata.
BOVINE. From the Latin "bos," meaning cow or
bull. "Neat cattle" are animals belonging to the
genus "bos," a term not embracing horses, sheep,
goats, or swine. "Cattle" as generally used in the
Western States means "neat cattle"; it includes
cows, bulls, and steers, but not horses, mares, geld-
ings, colts, mules, jacks, or jennies, goats, hogs,
sheep, shoats, or pigs. State v. District Court of
Fifth Judicial Dist. in and for Nye County, 42
Nev. 218, 174 P. 1023, 1025.
BOW-BEARER. An under-officer of the forest,
whose duty it was to oversee and true inquisition
make, as well of sworn men as unsworn, in every
bailiwick of the forest; and of all manner of
trespasses done, either to vert or venison, and
cause them to be presented, without any conceal-
ment, in the next court of attachment, etc. Cromp.
Jur. 201.
BOWIE KNIFE. A long knife shaped like a dag-
ger but having only one edge. Knox v. State,
157 Term. S.W.2d 318, 319. A butcher knife,
Mireles v. State, 80 Tex.Cr.R. 648, 192 S.W. 241,
242; a "dirk," Bivens v. State, 133 Tex.Cr.R. 604,
113 S.W.2d 921.
BOWYERS. Manufacturers of bows and shafts.
An ancient company of the city of London.
BOX. A construction of permanent, fixed dimen-
sions and size. Lyon, Inc., v. Clayton & Lambert
Mfg. Co., D.C.Del., 13 F.Supp. 331, 333.
BOX DOLLY. A vehicle which has but one wheel,
a wide cylindrical drum in the center of it, and is
shaped like a box, the lower part of which extends
down as far as the axis of the drum. The Rosalie
Mahony, D.C.Wash., 218 F. 695, 697.
BOX STEP. A passenger car step. Hill v. Minne-
apolis, St. Paul, & S. S. M. Ry. Co., 160 Minn. 484,
200 N.W. 485, 486.
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BOX STRAPPING. Metal strips intended to rein-
force the ends of heavy wooden packing cases to
prevent them from breaking open. Stanley Works
v. Twisted Wire & Steel Co., C.C.A.N.Y., 256 F. 98,
99.
BOXED WEIGHT BASIS. According to weight at
time of packing and after wrapping. Swift & Co.
v. Wallace, C.C.A.7, 105 F.2d 848, 861,
BOXING BOUT. A contest of skill between two
participants. Fischer v. City of Cleveland, 42
Ohio App, 75, 181 N.E. 668, 670.
BOXING OF PINE TREES. As equivalent to
"hanging of cups upon timber." Howard V. State,
17 Ala.App. 9, 81 So. 345, 346.
BOY. Legitimate child. In re Dragoni, 53 Wyo,
143, 79 P.2d 465, 468. Male child. Hinerman v.
Hinerman, 85 W.Va. 349, 101 S.E. 789, 790.
BOYCOTT. A conspiracy or confederation to pre-
vent the carrying on of business, or to injure the
business of any one by preventing potential cus-
tomers from doing business with him or employ-
ing the representatives of said business, by threats,
intimidation, coercion, etc. Dick v. Northern Pac.
Ry. Co., 86 Wash. 211, 150 P. 8, 12, Ann.Cas.1917A,
638; Hailey v. Brooks, Tex.Civ.App., 191 S.W. 781,
783.
Intimidation and coercion as essential elements. Smythe
Neon Sign Co. v. Local Union No. 405 of International
Brotherhood of Electrical Workers of Cedar Rapids, 226
Iowa 191, 284 N.W. 126, 130. Labor union members' vol-
untary determination to refrain from working in erection
of materials not bearing union label. Frank Schmidt
Planing Mill Co. v. Mueller, Mo.App., 154 S.W.2d 610, 614,
615. Labor union's promulgation of rule prohibiting mem-
bers from handling and erecting work not bearing union
label, Crescent Planing Mill Co. v. Mueller, 234 Mo.App.
1243, 123 S.W.2d 193, 196. The word does not necessarily
import illegality, Smythe Neon Sign Co. v. Local Union
No. 405 of International Brotherhood of Electrical Workers
of Cedar Rapids, 226 Iowa 191, 284 N.W. 126, 130.
Primary Boycott
That which occurs when an organized union of
employees, by concerted action, ceases dealing
with a former employer. Pierce v. Stablemen's
Union, Local No. 8760, 156 Cal. 70, 103 P. 325, 327.
Secondary Boycott
A combination to exercise coercive pressure on
customers, actual or prospective, to cause them to
withhold or withdraw their patronage. Duplex
Printing Press Co. v. Deering, 254 U.S. 443, 41 S.
Ct. 172, 176, 65 L.Ed. 349, 16 A.L.R. 196. An act
which, when committed in concert, may cause
such injury to the public, or be so useless or un-
fair that these conditions will be decisive as to
whether such act is permissible or forbidden.
Justin Seubert, Inc., v. Reiff, 98 Misc. 402, 164 N.
Y.S. 522, 526.
BOYD RULE. In a corporate reorganization, no
junior security may be given participation with-
out providing a new consideration therefor, unless
all securities senior to it have received full equiva-
lent of their rights against the estate. Phelan v.
Middle States Oil Corp., D.C.N.Y., 124 F.Supp. 728,
781.
BOYLE'S LAW. The principle that as the pres-
sure of gas increases at a fixed temperature, the
volume decreases in inverse proportion, or the
product of the pressure and volume is a constant
quantity. Huntington Development & Gas Co. v.
Topping, 115 W.Va. 364, 176 S.E. 424, 425.
BOZERO. In Spanish law. An advocate; one
who pleads the causes of others, or his own, before
courts of justice, either as plaintiff or defendant.
Called also abogado.
BRABANT. A variety of the old coin known as
a crocard. See Crockards.
BRABANTER. A mercenary soldier or bandit
who figured in the Anglo-French wars of the 11th
and 13th centuries, and who came from the old
duchy of Brabant, now partly comprised in the
provinces of Brabant in Belgium and of North
Brabant in the Netherlands. Cent. Diet.
BRACERY. The statute of 32 Hen. VIII, c. 9, to
prevent the buying and selling of pretended rights
or titles, is commonly called "the Bill of Bracery
and buying of titles." Cain v. Monroe, 23 Ga.
82, 86, 89, 94; Webb v. Camp, 26 Ga. 354, 357.
See Buying Titles.
BRACHIUM MARIS. An arm of the sea.
BRACINUM. A brewing; the whole quantity of
ale brewed at one time, for which tolsestor was
paid in some manors. Brecina, a brewhouse.
BRAHMIN, BRAHMAN, or BRAMIN. In Hindu
law. A divine; a priest; the first Hindu caste.
BRAIN INJURY. A "concussion" as "brain in-
jury". Le Francois v. Hobart College, Sup., 31
N.Y.S.2d 200, 204.
BRAKE. An effective "brake" consists of the
"brake shoe," and the "brake drum." Davis Sew-
ing Mach. Co. v. New Departure Mfg. Co., C.C.A.
Ohio, 217 F. 775, 780.
BRANCH. An offshoot, lateral extension, or sub-
division. Any member or part of a body or sys-
tem; a department. Northern Indiana Land Co.
v. Carlin, 139 Ind. 324, 127 N.E. 197, 201.
A branch of a family stock is a group of persons related
by descent from a common ancestor, and related to the
main stock by the fact that that common ancestor de-
scends from the original founder or progenitor. Certificate
given by the Trinity House to pilots who have passed an
examination. Houston Pilots v. Goodwin, Tex.Civ.App.,
178 S.W.2d 308, 311. "Group", "wing", "faction", "party"
or "section -  and "branch" as synonymous. In re Mc-
Kean's Estate, 152 Pa, Super. 613, 33 A.2d 51, 52.
BRANCH OF A RIVER. "Branch," as distin-
guished from a channel of a river, may have two
or more separate channels; "channel" meaning
primarily the bed. United States v. Hutchings,
D.C.Okl., 252 F. 841, 844.
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BREACH
BRANCA OF THE SEA. This term, as used at
common law, included rivers in which the tide
ebbed and flowed. Arnold v. Mundy, 6 N.J.Law, 86,
10 Am.Dec. 356.
BRANCH PILOT. One possessing a license, com-
mission, or certificate of competency issued by the
proper authority and usually after an examination.
Dean v. Healy, 66 Ga. 503; State v. Follett, 33 La.
Ann. 228. Holder of certificate given by the Trin-
ity House to pilots who have passed an examina-
tion. Houston Pilots v. Goodwin, Tex.Civ.App.,
178 S.W.2d 308, 311.
BRANCH RAILROAD. A lateral extension of a
main line; a road connected with or issuing from
a main line. Biles v. Railroad Co., 5 Wash. 509,
32 Pac. 211; Blanton v. Railroad Co., 86 Va. 618,
10 S.E. 925. Feeder lines, Union Pac. R. Co. v.
Anderson, 167 Or. 687, 120 P.2d 578, 588.
BRAND. To stamp; to mark, either with a hot
iron or with a stencil plate. Dibble v. Hathaway,
11 Hun, N.Y., 575. And see Miles v. Vermont
Fruit Co., 98 Vt. 1, 124 A. 559, 563.
BRANDING. An ancient mode of punishment by
inflicting a mark on an offender with a hot iron.
A recognized punishment for some military of-
fenses. Marking of cattle for the purpose of
identification.
BRANDY. Product from distilling wine or the
fermented juice of any fruit. Chicago, B. & Q. R.
Co. v. California Wine Co., 313 Ill.App. 498, 40 N.
E.2d 624, 627.
BRANKS. An instrument formerly used in some
parts of England for the correction of scolds; a
scolding bridle.
BRASIATOR. A maltster, a brewer.
BR ASIUM. Malt.
BRASS KNUCKLES or KNUCKS. A weapon
worn on the hand for the purposes of offense or
defense, so made that in hitting with the fist con-
siderable damage is inflicted. It is called "brass
knuckles" because it was originally made of brass.
The term is now used as the name of the weapon
without reference to the metal of which it is
made; Patterson v. State, 3 Lea, Tenn., 575.
BRAWL. A clamorous or tumultuous quarrel in a
public place, to the disturbance of the public peace.
In English law, specifically, a noisy quarrel or other up-
roarious conduct creating a disturbance in a church or
churchyard. 4 B.Comm. 146; 4 Steph.Comm. 253.
"Tumults" and "brawls" as substantially identical.
State v. Perkins, 42 N.H. 464.
BREACH. The breaking or violating of a law,
right, or duty, either by commission or omission.
This name is sometimes given to that part of the decla-
ration which alleges the violation of the defendant's prom-
ise or duty, immediately preceding the ad damnum clause.
Expenditure by administrator of proceeds of policy pend-
ing appeal from award of proceeds to administrator as
"breach" of obligation of faithful administration. State
ex rel. and to Use of Gnekow v. United States Fidelity &
Guaranty Co., 349 Mo. 528, 163 S.W.2d 86, 90.
BREACH OF CLOSE. The unlawful or unwar-
rantable entry on another person's soil, land, or
close. 3 Bl.Comm. 209.
BREACH OF CONTRACT. Failure, without legal
excuse, to perform any promise which forms the
whole or part of a contract. Friedman v. Katzner,
139 Md. 195, 114 A. 884, 886. Prevention or hin-
drance by party to contract of any occurrence or
performance requisite under the contract for the
creation or continuance of a right in favor of the
other party or the discharge of a duty by him.
Sharp v. Williams, 141 Fla. 1, 192 So. 476, 480.
Unequivocal, distinct and absolute refusal to per-
form agreement. R. T. Clark & Co. v. Miller, 154
Miss. 233, 122 So. 475, 481. Violation of obligation.
Russell v. Stephens, 191 Wash. 314, 71 P.2d 30,
31.
Anticipatory Breach
A breach committed before there is a present
duty of performance, and is the outcome of words
evincing intention to refuse performance in the
future. King Features Syndicate v. Valley Broad-
casting Co., D.C.Tex., 42 F.Supp. 107, 108.
Acquiescence by other party as necessary, Cerruti v.
Burdick, 130 Conn. 284, 33 A.2d 333, 335. Clear and un-
equivocal, renunciation of contract and refusal to perform
as essential, Kimel v. Missouri State Life Ins. Co., C.C.A.
Kan., 71 F.2d 921, 923. Party to contract putting it out of
his power to perform as breach, Assembly, Inc., v. Giller,
134 Misc. 657, 236 N.Y.S. 308, 313. Positive statement that
promissor will not or cannot substantially perform con-
tractual duties as breach, Hawkinson v. Johnston, C.C.A.
Mo., 122 F.2d 724, 729, 730.
Bankruptcy as "anticipatory breach", In re Robertson,
D.C.Ark., 41 F.Supp. 665, 668.
Doctrine is that party denying liability destroys contract
so far as able. Pollack v. Pollack, Tex.Com.App., 46 S.W.
2d 292, 293.
Continuing Breach
Such breach occurs where the state of affairs, or
the specific act, constituting the breach, endures
for a considerable period of time, or is repeated at
short intervals.
Constructive Breach
Such breach takes place when the party bound
to perform disables himself from performance by
some act, or declares, before the time comes, that
he will not perform. Jordan v. Madsen, 69 Utah,
112, 252 P. 570, 573; The Adamello, D.C.Va., 19
F.2d 388, 389.
BREACH OF COVENANT. The nonperformance
of any covenant agreed to be performed, or the
doing of any act covenanted not to be done. Holt-
house.
BREACH OF DUTY. In a general sense, any vio-
lation or omission of a legal or moral duty. More
particularly, the neglect or failure to fulfill in a
just and proper manner the duties of an office or
fiduciary employment. Every violation by a trus-
tee of a duty which equity lays upon him, whether
willful and fraudulent, or done through negligence
or arising through mere oversight or forgetful-
ness, is a breach of duty. Hivick v. Hemme, 118
Okl. 167, 247 P. 692, 693.
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BREACH
BREACH OF POUND. The breaking any pound
or place where cattle or, goods distrained are
deposited, in order to take them back. 3 Bl.Comm.
146.
BREACH OF PRISON. The offense of actually
and forcibly breaking a prison or . gaol, with in-
tent to escape. 4 Chit.B1. 130, notes; 4 Steph.
Comm. 255. The escape from custody of a person
lawfully arrested on criminal process.
BREACH OF PRIVILEGE. An act or default in
violation of the privilege of either house of parlia-
ment, of congress, or of a state legislature.
BREACH OF PROMISE. Violation of a promise;
'chiefly used as an elliptical expression for "breach
of promise of marriage."
BREACH OF THE PEACE. A violation or dis-
turbance of the public tranquillity and order. The
offense of breaking or disturbing the public peace
by any riotous, forcible, or unlawful proceeding. 4
Bl.Comm. 142, et seq.; People v. Bartz, 53 Mich.
493, 19 N.W. 161. "Breach of the peace" is a
generic term, State v. Reichman, 135 Tenn. 653,
188 S.W. 225, 228, Ann.Cas.1918B, 889, and includes
all violations of public peace or order and acts
tending to a disturbance thereof, City of St. Louis
v. Slupsky, 254 Mo. 309, 162 S.W. 155, 157, 49 L.R.
A.,N.S., 919. One who commits a breach of the
peace is guilty of disorderly conduct, but not all
disorderly conduct is necessarily a "breach of the
peace." Garvin v. City of Waynesboro, 15 Ga.App.
633, 84 S.E. 90, 91; City of Seattle v. Franklin,
191 Wash. 297, 70 P.2d 1049, 1051.
A constructive breach of the peace is an unlawful act
which, though wanting the elements of actual violence or
injury to any person, is yet inconsistent with the peace-
able and orderly conduct of society. An apprehended
breach of the peace is caused by the conduct of a man who
threatens another with violence or physical injury, or who
goes about in public with dangerous and unusual weapons
in a threatening or alarming manner, or who publishes an
aggravated libel upon another, etc.
BREACH OF TRUST. Any act done by a trustee
contrary to the terms of his trust, or in excess of
his authority and to the detriment of the trust;
or the wrongful omission by a trustee of any act
required of him by the terms of the trust. Also
the wrongful misappropriation by a trustee of any
fund or property which had been lawfully com-
mitted to him in a fiduciary character. Every
violation by a trustee of a duty which equity lays
upon him, whether willful and fraudulent, or done
through negligence, or arising through mere over-
sight and forgetfulness, is a "breach of trust."
The term, therefore, includes every omission and
commission in carrying out the trust according
to its terms, of care and diligence in protecting
and investing the trust property, and of using
perfect good faith. H. B. Cartwright & Bro. v.
United States Bank & Trust Co., 23 N.M. 82, 167
P. 436, 453. A violation by the trustee of any
duty which he owes to the beneficiary. Bruun v.
Hanson, C.C.A.Idaho, 103 F.2d 685, 699.
BREACH OF TRUST WITH FRAUDULENT IN-
TENT. Larceny after trust. State v. Owings, 205
S.C. 314, 31 S.E.2d 906, 907.
BREACH OF WARRANTY. In real property law
and the law of insurance. The failure or false-
hood of an affirmative promise or statement, or the
nonperformance of an executory stipulation. Ste-
wart v. Drake, 9 N.J.Law, 139. Failure of insured
to disclose trivial and temporary disorders. Frank-
lin Life Ins. Co. v. Critz, C.C.A.Miss., 109 F.2d
417. As used in the law of sales, "breach of war-
ranty," unlike fraud, does not involve guilty
knowledge, Anglo-California Trust Co. v. Hall, 211
P. 991, 993, 61 Utah, 223, and rests on contract,
Oelwein Chemical Co. v. Baker, 204 Iowa, 66, 214
N.W. 595, 596. Falsity of statements incorporated
into fidelity bond. City Bank & Trust Co. v. Com-
mercial Casualty Co., La.App., 176 So. 27, 30.
BREAD ACTS. Laws providing for the suste-
nance of persons kept in prison for debt.
BREAK. "Break" may be used in a broad sense,
as in seller's covenant in contract of sale of auto,
to indicate a weakness, impairment, or destruction
of parts, however caused. American Locomotive
Co. v. National Wholesale Grocery Co., 226 Mass.
314, 115 N.E. 404, 405, L.R.A.1917D, 1125.
BREAK A LEG. Pertaining to a broken bone
anywhere between ankle and hip, with possible
exception of patella, 100% American Local Mut.
Life & Accident Ass'n of El Paso v. Work, Tex.
Civ.App., 289 S.W. 1020.
BREAK AND TAKE. Sale of merchandise or
amusement where customer pays for a chattel
and a chance for another unpaid for chattel, the
ticket being the opportunity for fortuitous selec-
tion of a differentiated article. Minter v. Federal
Trade Commission, C.C.A.3, 102 F.2d 69, 73.
BREAKAGE. Odd cents retained by race track
promoter out of amounts due on wagers. Wise v.
Delaware Steeplechase & Race Ass'n, Del.Super.,
2 Terry 182, 18 A.2d 419, 421, 423.
BREAKDOWN SERVICE. As applied to an elec-
tric public service corporation is primarily a serv-
ice for emergency and is used in case the electric
plant of the customer breaks down; it is also used
when very little electricity is required, as upon
holidays and Sundays, and also at the peak of the
service when a maximum current is required dur-
ing the day. People ex rel. New York Edison Co.
v. Public Service Commission for First Dist., 191
App.Div. 237, 181 N.Y.S. 259, 261.
BREAKING. Forcibly separating, parting, disin-
tegrating, or piercing any solid substance.
In the law as to housebreaking and burglary, it means
the tearing away or removal of any part of a house or of
the locks, latches, or other fastenings intended to secure it,
or otherwise exerting force to gain an entrance, with the
intent to commit a felony; or violently or forcibly break-
ing out of a house, after having unlawfully entered it, in
the attempt to escape. Sims v. State, 136 Ind. 358, 36 N.E.
278; Melton v. State, 24 Tex.App. 287, 6 S.W. 303. Actual
"breaking" involves application of some force. Rains v.
Commonwealth, 293 Ky. 429, 169 S.W.2d 41, 44, the action
of accused must have been such as would, • without addi-
tional effort, have made an entry possible. Armour v. State,
72 Okl.Cr. 44, 112 P.2d 1116, 1119, but there is no require-
ment that there be shown violence, a latch lifted, or a
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BREVE
bolt drawn. People v. Viola, 264 App.Div. 38, 34 N.Y.S.2d
1018, 1020. The term in indictment, information or in-
struction implies force. State v. Stuart, 316 Mo. 150, 289
S.W. 822, 824; Humphrey v. State, 110 Tex.Cr.R. 62, 7 S.
W.2d 576, 577; McFarland v. Commonwealth, 227 Ky. 411,
13 S.W.2d 277, 278. The slightest force is sufficient, as the
lifting or opening of a latch, Dennis v. State, 71 Tex.Cr.
R. 162, 158 S.W. 1008, 1010; State v. Gendusa, 193 La. 59,
190 So. 332, 339; or the raising of a window, Hollis v.
State, 69 Tex.Cr.R. 286, 153 S.W. 853, 854; State v. Chap-
pell, 185 S.C. 111, 193 S.E. 924, 925; or the opening of a
door, State v. Lapoint, 87 Vt. 115, 88 A. 523, 47 L.R.A.,N.S.,
717; Gibson v. Commonwealth, 204 Ky. 704, 265 S.W. 339,
345; Yeargin v. State, 54 Okl.Cr. 34, 14 P.2d 431, 432;
Kidd v. Commonwealth, 273 Ky. 300, 116 S.W.2d 636, 638;
or the opening of unfastened transom. State v. Chappell,
185 S.C. 111, 193 S.E. 924; or entry with a key or by
manipulating hasp from outside, McGilveray v. State. 111
Tex.Cr.R. 256, 12 S.W.2d 585; or turning of knob of door,
State v. Edell, 7 W.W.Harr. Del., 404, 183 A. 630. But en-
try by open door, window, or other opening does not con-
stitute "breaking", George v. State, 183 Miss. 327, 184 So.
67, 68. Breaking lock securing pump handle on gasoline
tank releasing handle is sufficient "breaking". Chaney v.
State, 25 Ala.App. 141, 142 So. 103.
As an element of the crime of burglary breaking may be
either actual or constructive. Davis v. Commonwealth,
132 Va. 521, 110 S.E. 356. Entering a building by a chim-
ney is a constructive breaking. State v. Hart, 94 S.C. 214,
77 S.E. 862.
BREAKING A CASE. The expression by the
judges of a court, to one another, of their views
of a case, in order to ascertain how far they are
agreed, and as preliminary to the formal delivery
of their opinions. "We are breaking the case,
that we may show what is in doubt with any of
us." Holt, C. J., addressing Dolbin, J., 1 Show.
423.
BREAKING A CLOSE. An unlawful entry upon
land. Littleton v. Roberts, 181 S.C. 303, 187 S.E.
349, 350.
Wrongdoer need only set in motion some dangerous
agency which in itself, though quite distant from wrong-
doer, inflicts wrong. Western Union Telegraph Co. v.
Bush, 191 Ark. 1085, 89 S.W.2d 723, 725, 103 A.L.R. 367.
BREAKING BULK. The offense committed by a
bailee (particularly a carrier) in opening or un-
packing the chest, parcel, or case containing goods
intrusted to his care, and removing the goods and
converting them to his own use.
BREAKING DOORS. Forcibly removing the
fastenings of a house, so that a person may enter.
BREAKING INTO. Breaking with burglarious in-
tent. State v, Heflin, 338 Mo. 236, 89 S.W.2d
938, 946, 103 A.L.R. 1301.
BREAKING JAIL. The act of a prisoner in effect-
ing his escape from a place of lawful confinement.
BREAKING OF ARRESTMENT. In Scotch law.
The contempt of the law committed by an arrestee
who disregards the arrestment used in his hands,
and pays the sum or delivers the goods arrested to
the debtor. The breaker is liable to the arrester
in damages. See Arrestment.
BREAST OF THE COURT. A metaphorical ex-
pression signifying the conscience, discretion, or
recollection of the judge.
During the term of a court, the record is said to re-
main "in the breast of the judges of the court and in their
remembrance." Co.Litt. 260a; 3 BI.Comm. 407. When we
say that the record is in the "breast of the court" to be
changed during the term, we only mean that the proceed-
ings attested by it have not yet obtained that irrevocable
character which places them beyond the power of the
court after the term. Willson v. Ice, 78 W.Va. 672, 90 S.E.
272, 275.
BREATH. In medical jurisprudence. The air ex-
pelled from the lungs at each expiration.
BREATHING. Expansion and contraction, under
the influence of changing temperatures, of ma-
terials used in cables for transmission of high-
tension electric currents. Electric Cable Joint
Co. v. Brooklyn Edison Co., N.Y., 292 U.S. 69, 54
S.Ct. 586, 587, 78 L.Ed. 1131.
BREDWITE. In Saxon and old English law. A
fine, penalty, or amercement imposed for defaults
in the assise of bread. Cowell.
BREED. Produce (offspring) by hatching or
gestation; to hatch. Miller Hatcheries v. Boyer,
C.C.A.Iowa, 131 F.2d 283, 287.
BREHON. In old Irish law. A judge. 1 Bl.
Comm. 100. Brehons, (breitheamhuin,) judges.
BREHON LAW. The name given to the ancient
system of law of Ireland as it existed at the time
of its conquest by Henry II.
BRENAGIUM. A payment in bran, which tenants
anciently made to feed their lords' hounds.
BREPHOTROPHI. In the civil law. Persons ap-
pointed to take care of houses destined to receive
foundlings.
BRETHREN. This word, in a will, may include
sisters, as well as brothers, of the person indi-
cated; it is not necessarily limited to the mas-
culine gender. Terry v. Brunson, 1 Rich.Eq., S.C.,
78.
BRETHREN OF TRINITY HOUSE. See Elder
Brethren.
BRETTS AND SCOTTS, LAWS OF THE. A code
or system of laws in use among the Celtic tribes
of Scotland down to the beginning of the four-
teenth century, and then abolished by Edward I.
of England.
BRETTWALDA. In Saxon law. The ruler of the
Saxon heptarchy.
BREVE. L. Lat. A writ. An original writ.
A writ or precept of the king issuing out of his courts.
A writ by which a person is summoned or attached to an-
swer an action, complaint, etc., or whereby anything is
commanded to be done in the courts, in order to justice,
etc. Skene.
BREVE DE RECTO. A writ of right, or license
for a person ejected out of an estate, to sue for
the possession of it.
BREVE INNOMINATUM. A writ making only
a general complaint, without the details or par-
ticulars of the cause of action.
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BREVE
BREVE ITA DICITUR, QUIA REM DE QUA
AGITUR, ET INTENTIONEM PETENTIS, PAU-
CIS VERBIS BREVITER ENARRAT. A writ is
so called because it briefly states, in few words,
the matter in dispute, and the object of the party
seeking relief. 2 Inst. 39.
BREVE JUDICIALE DEBET SEQUI SUUM
ORIGINALE, ET ACCESSORIUM SUUM PRIN-
CIPALE. Jenk.Cent. 292. A judicial writ ought
to follow its original, and an accessory its prin-
cipal.
BREVE JUDICIALE NON CADIT PRO DE-
FECTU FORME. Jenk.Cent. 43. A judicial writ
fails not through defect of form.
BREVE NOMINATUM. A named writ. A writ
stating the circumstances or details of the cause, of
action, with the time, place, and demand, very
particularly.
BREVE ORIGINALE. An original writ; a writ
which gave origin and commencement to a suit.
BREVE PERQUIRERE. To purchase a writ or
license of trial in the king's courts by the plain-
tiff.
BREVE TESTATUM. A written memorandum
introduced to perpetuate the tenor of the convey-
ance and investiture of lands. 2 Bl.Comm. 307.
In Scotch law. A similar memorandum made out
at the time of the transfer, attested by the pares
curice and by the seal of the superior. Bell.
BREVET.
In military law. A commission by which an
officer is promoted to the next higher rank, but
without conferring a right to a corresponding in-
crease of pay.
In French law. A privilege or warrant granted
by the government to a private person, authoriz-
ing him to take a special benefit or exercise an
exclusive privilege. Thus a brevet d'invention is
a patent for an invention.
BREVIA. Lat. The plural of breve.
BREVIA ADVERSARIA. Adversary writs; writs
brought by an adversary to recover land. 6 Coke,
67.
BREVIA AMICABILIA. Amicable or friendly
writs; writs brought by agreement or consent of
the parties.
BREVIA ANTICIPANTIA. At common law. An-
ticipating or preventive writs. Six were included
in this category, viz.: Writ of mesne; warrantia
chartce; monstraverunt; audita querela; curia
claudenda; and ne injuste vexes. Peters v. Linen-
schmidt, 58 Mo. 466.
BREVIA DE CURSU. Writs of course. Formal
writs issuing as of course.
BREVIA FORMATA. Certain writs of approved
and established form which were granted of
course in actions to which they were applicable,
and which could not be changed but by consent of
the great council of the realm. Bract. fol. 413b.
BREVIA JUDICIALIA. Judicial writs. Auxiliary
writs issued from the court during the progress
of an action, or in aid of the judgment.
BREVIA MAGISTRALIA. Writs occasionally is-
sued by the masters or clerks of chancery, the
form of which was varied to suit the circum-
stances of each case. Bract. fol. 413b.
BREVIA SELECTA. Choice or selected writs or
processes. Often abbreviated to Brev. Sel.
BREVIA, TAM ORIGINALIA QUAM JUDICI-
ALIA, PATIUNTUR ANGLICA NOMINA. 10
Coke, 132. Writs, as well original as judicial, bear
English names.
BREVIA TESTATA. The name of the short mem-
oranda early used to show grants of lands out of
which the deeds now in use have grown. Jacob.
BREVIARIUM ALARICIANUM. A compilation
of Roman law made by order of Alaric II., king of
the Visigoths, in Spain, and published for the use
of his Roman subjects in the year 506. It is also
known as Lex Romana Visigothorum. It became
the principal, if not the only, representative of
Roman law among the Franks.
BREVIARIUM ANIANI. Another name for the
Brevarium Alaricianum, (q. v.) Anian was the
referendery or chancellor of Alaric, and was com-
manded by the latter to authenticate, by his sig-
nature, the copies of the breviary sent to the
comites. Mackeld. Rom. Law, § 68.
BREVIATE. A brief; brief statement, epitome,
or abstract. A short statement of contents, ac-
companying a bill in parliament. Holthouse. The
name is usually applied to the famous brief of
Mr. Murray (afterwards Lord Mansfield) for the
complainant in the case of Penn v. Lord Baltimore,
1 Ves. 444.
BREVIBUS ET ROTULIS LIBERANDIS. A writ
or mandate to a sheriff to deliver to his successor
the county, and appurtenances, with the rolls,
briefs, remembrance, and all other things belong-
ing to his office. Reg.Orig. 295.
BREWER. One who manufactures fermented liq-
uors, for sale, from malt, wholly or in part, or
from any substitute therefor. U. S. v. Wittig, 28
Fed.Cas. 745.
BRIBE. Anything of value; any gift, advantage
or emolument; any price, reward or favor. State
v. Douglas, 70 S.D. 203, 16 N.W.2d 489, 496. Any
money, goods, right in action, property, thing of
value, or any preferment, advantage, privilege or
emolument, or any promise or undertaking to give
any, asked, given, or accepted, with a corrupt in-
tent to induce or influence action, vote, or opinion
of person in any public or official capacity. People
v. Van de Carr, 87 App.Div. 386, 84 N.Y.S. 461;
People v. Ward, 110 Cal. 369, 42 P. 894; Williams
v. State, 188 Ind. 283, 123 N.E. 209, 213. It is a
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BRIDLE
gift, not necessarily of pecuniary value, bestowed
to influence the conduct of the receiver, and must
be of substantial value to him. People v. Hyde,
156 App.Div. 618, 141 N.Y.S. 1089, 1093.
Payment of corporate funds by director and executive
officer of the corporation to officials of labor union to pre-
vent ruinous strikes which union officials were under no
legal duty to call as "bribe". Hornstein v. Paramount
Pictures, Sup., 37 N.Y.S.2d 404, 412.
BRIBERY. The offering, giving, receiving, or
soliciting of any thing of value to influence action
as official or in discharge of legal or public duty.
Allen v. State, 63 Okl.Cr. 16, 72 P.2d 516, 519. The
corrupt tendering or receiving of a price for
official action. State v. London, 194 Wash. 458,
78 P.2d 548, 554, 115 A.L.R. 1255. The receiving or
offering any undue reward by or to any person
concerned in the administration of public justice
or a public officer to influence his behavior in
office. Walsh v. People, 65 Ill. 65, 16 Am.Rep. 569;
State v. Harrah, 101 W.Va. 300, 132 S.E. 654, 655,
4 Bl.Comm. 139, and note. The taking or giving a
reward for public office. Brown.
Acceptance by public officer of compensation for doing
legal duty, Ex parte Montgomery, 244 Ala. 91, 12 So.2d 314,
317; agreement by public official to refrain from perform-
ing official act or to corruptly perform act contrary to rules
of honesty essential, Selvidge v. State, 126 Tex.Cr.R. 489, 72
S.W.2d 1079, 1080; Attempt to bribe officer engaged in
making an unlawful arrest, Sugarman v. State, 173 Md. 52,
195 A. 324, 326; Attempted bribery as included in term,
Coleman v. State ex rel. Mitchell, 132 Fla. 845, 182 So. 627,
628; Coleman v. State ex rel. Mitchell, 132 Fla. 845, 182
So. 627, 628; "extortion" and "bribery" mutually exclusive,
People v. Feld, 262 App.Div. 909, 28 N.Y.S.2d 796, 797;
involuntary payments insufficient, Hornstein v. Paramount
Pictures, Sup., 37 N.Y.S.2d 404, 413; unlawful concert of
one or more persons acting with one or more other per-
sons essential, People v. Keyes, Cal.Sup., 284 P. 1105; vol-
untary giving of something of value to influence perform-
ance of official duty as essence, Hornstein v. Paramount
Pictures, Sup., 37 N.Y.S.2d 404, 413.
At common law, the gist of the offense was the tendency
to prevert justice, People v. Peters, 265 Ill. 122, 106 N.E.
513, 515, Ann.Cas.1916A, 813; the offering, giving, receiving
or soliciting of anything of value to influence action as a
public official, Coleman v. State ex rel. Mitchell, Fla., 182
So. 627, 628; corrupt agreement induced by offer of re-
ward, Osborn v. State, 160 Tenn. 594, 28 S.W.2d 47, 48;
The term now extends_to many classes of officers and is not
confined to judicial officers; it applies both to the actor
and receiver, and extends to voters, cabinet ministers, leg-
islators, sheriffs, and other classes. 2 Whart.Crim. Law, §
1858. In re Crum, 55 N.D. 876, 215 N.W. 682, 688, 55 A.L.
R. 220; State v. McGraw, 142 La. 417, 76 So. 822. All per-
sons whose official conduct is connected with the adminis-
tration of the government are subjects, Commonwealth v.
Benedict, 114 Pa.Super. 183, 173 A. 850, 851; persons acting
under color of title to office, though not an officer de jure,
are subjects, Ex parte Covell, 63 Okl. 256, 74 P.2d 626, 631;
but it has also been held that the person charged to have
been bribed must be an officer, de facto or de jure, or
among the governmental administrative personnel. State
v. London, 194 Wash. 458, 78 P.2d 548, 115 A.L.R. 1255.
BRIBERY AT ELECTIONS. The offense com-
mitted by one who gives or promises or offers
money or any valuable inducement to an elector,
in order to corruptly induce the latter to vote in a
particular way or to abstain from voting, or as a
reward 'to the voter for having voted in a particular
way or abstained from voting.
BRIBOUR. One that pilfers other men's goods;
a thief.
BRICOLIS. An engine by which walls were
beaten down. Blount.
BRIDEWELL. In England. A house of correc-
tion.
BRIDGE. A structure erected over a river, creek,
stream, ditch, ravine, obstruction in highway or
other place to facilitate the passage and for bene-
fit of travelers.
The term includes both arches and abutments; Bardwell
v. Town of Jamaica, 15 Vt. 438; Andrew B. Hendryx Co.
v. City of New Haven, 104 Conn. 632. 134 A. 77, 79; as
well as approaches; 71 L.T. 430; McGee v. Jones County,
161 Iowa, 296, 142 N.W. 957, 959, 48 L.R.A.,N.S., 141; In re
Park Lane South in City of New York, 206 App.Div. 269,
200 N.Y.S. 555, 557; contra, under a statute, City of Stam-
ford v. Town of Stamford, 100 Conn. 434, 124 A. 26, 27.
The term likewise includes fills or embankments, Havird v.
Richmond County, 47 Ga.App. 580, 171 S.E. 220; Morgan
County v. Glass, 139 Ga. 415, 77 S.E. 583; appurtenances
necessary to its proper use, Lumley v. Pollard. 61 Ga.App.
681, 7 S.E.2d 308, 313; culverts; Central Bridge & Const.
Co. v. Saunders County, 106 Neb. 484, 184 N.W. 220, 223;
contra, Village of Marissa v. Jones, 327 Ill. 180, 158 N.E.
389, 394; viaducts; In re City of Boston, 221 Mass. 468,
109 N.E. 389, 392; but not a railway viaduct, designed only
for the passage of engines and cars; Bridge Proprietors v.
Land & Improvement Co., 1 Wall. 116, 17 L.Ed. 571; nor
does the term include a drain under a bridge; Ellis v.
Floyd County, 24 Ga.App. 717, 102 S.E. 181; nor a fran-
chise or contract to build a bridge; New Orleans Pontchar-
train Bridge Co. v. Louisiana Public Service Commission,
162 La. 874, 111 So. 265, 266 ; nor piping and water boxes
and culverts for drainage purposes across public roads,
Montgomery County v. Seaboard Air Line Ry. Co., 41 Ga.
App. 130, 152 S.E. 261, 262; nor flood walls, Jefferson
County Fiscal Court v. Jefferson County ex rel. Grauman,
278 Ky. 68, 128 S.W.2d 230, 232, 233; nor an elevated road-
way or causeway of reinforced concrete, resting upon
concrete piers or columns. Rumsey v. Department of La-
bor and Industries, 192 Wash. 538, 74 P.2d 214, 216.
"Bridges" and "culverts" are not synonymous. Protest
of Evans, 153 Okl. 191, 4 P.2d 1030, 1031.
Bridges are either public or private. Public bridges are
such as form a part of the highway, common, according
to their character as foot, horse, or carriage bridges, to
the public generally, with or without toll. State v. Street,
117 Ala. 203, 23 So. 807; Bonneville County v. Bingham
County, 24 Idaho, 1, 132 P. 431, 433; they are bridges
across a creek, river, or other natural body of water, etc.,
erected for the accommodation of the public, In re Walnut
St. Bridge in City of Des Moines, 220 Iowa 55, 261 N.W.
781, 782. A private bridge is one which is not open to
the use of the public generally, and does riot form part of
the highway. Rex v. Bucks County, 12 East, 192. Such
a bridge will not be considered a public bridge although it
may be occasionally used by the public. Thompson v. R.
Co., 3 Sandf.Ch., N.Y., 625; 1 Rolle, Abr. 368, Bridges, p1.
2; 2 Inst. 701; 1 Salk. 359.
BRIDGE OVER A PUBLIC WAY. A bridge upon
which railroad runs above highway. Boston & M.
R. R. v. Worcester County Com'rs, 300 Mass. 415,
15 N.E.2d 455, 457.
BRIDGE UNDER A PUBLIC WAY. A bridge for
travelers to use as part of a highway crossing
railroad over level thereof. Boston & M. R. R. v.
Worcester County Com'rs, 300 Mass. 415, 15 N.E.
2d 455.
BRIDGE-MASTERS. Persons chosen by the citi-
zens, to have the care and supervision of bridges,
and having certain fees and profits belonging to
their office, as in the case of London Bridge.
BRIDLE ROAD. In the location of a private way
laid out by the selectmen, and accepted by the
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BRIEF
town, a description of it as a "bridle road" does
not confine the right of way to a particular class
of animals or special mode of use. Flagg v.
Flagg, 16 Gray, Mass., 175.
BRIEF. A written document; a letter; a writing
in the form of a letter. A summary, abstract, or
epitome. A condensed statement or epitome of
some larger document, or of a series of papers,
facts and circumstances, or propositions.
In American practice. A written or printed document,
prepared by counsel to serve as the basis for an argument
upon a cause in an appellate court, and usually filed for
the information of the court. It embodies the points of
law which the counsel desires to establish, together with
the arguments and authorities upon which he rests his
contention. A brief, within a rule of court requiring coun-
sel to furnish briefs, before argument, implies some kind of
statement of the case for the information of the court.
Gardner v. Stover, 43 Ind. 356. A "brief" is the vehicle of
counsel to convey to the appellate court the essential facts
of his client's case, a statement of the questions of law in-
volved, the law he would have applied, and the application
he desires made of it by the court. Bell v. Germain, 12
Cal.App. 375, 107 P. 630. The brief of evidence in connec-
tion with an auditor's report is considered a "brief" though
it may embody the stenographic report of the testimony in
full. McKenzie v. Perdue, 67 Ga.App. 202, 19 S.E.2d 765,
774.
In Ecclesiastical law. A papal rescript sealed with wax.
See Bull.
In English practice. A document prepared by the attor-
ney, and given to the barrister, before the trial of a cause,
for the instruction and guidance of the latter. It contains,
in general, all the information necessary to enable the bar-
rister to successfully conduct their client's case in court,
such as a statement of the facts, a summary of the plead-
ings, the names of the witnesses, and an outline of the
evidence expected from them, and any suggestions arising
out of the peculiarities of the case.
In Scotch law. Brief is used in the sense of "writ," and
this seems to be the sense in which the word is used in
very many of the ancient writers.
Brief a l'evesque
A writ to the bishop which, in quare impedit,
shall go to remove an incumbent, unless he re-
cover or be presented pendente lite. 1 Keb. 386.
Brief of Title
A methodical epitome of all the patents, con-
veyances, incumbrances, liens, court proceedings,
and other matters affecting the title to real estate.
Brief Out of the Chancery
In Scotch law. A writ issued in the name of the
sovereign in the election of tutors to minors, the
cognoscing of lunatics or of idiots, and the ascer-
taining the widow's terce; and sometimes in divid-
ing the property belonging to heirs-portioners. In
these cases only brieves are now in use. Bell.
Brief Papal
In ecclesiastical law. The pope's letter upon
matters of discipline.
Printed Brief
Typewritten brief is a written and not a "printed
brief." Waterman Lumber & Supply Co. v.
Holmes, Tex.Civ.App., 161 S.W. 70.
BRIEFLY. Concisely; in a few words; pertain-
ing to a short or abridged statement. Boynton
Real Estate Co. v. Woodbridge Tp., 94 N.J.Law,
226, 109 A. 514, 515.
BRIEVE. In Scotch law. A writ. 1 Kames, Eq.
146.
BRIGA. In old European law. Strife, contention,
litigation, controversy.
BRIGANDINE. A coat of mail or ancient armour,
consisting of numerous jointed scale-like plates,
very pliant and easy for the body, mentioned in 4
& 5 P. & M. c. 2.
BRIGBOTE, In Saxon and old English law. A
tribute or contribution towards the repairing of
bridges. See Bote.
BRINE. A solution 4 per cent. salt is brine, with-
in the meaning of the provision of paragraph 488,
Free List, Tariff Act of 1913, for "fruits in brine."
Amerman & Patterson v. U. S., 12 Ct.Cust.App.
117, 118.
BRING. To convey to the place where the speak-
er is or is to be, to bear from a more distant to a
nearer place, to make to come, procure, produce,
draw to, to convey, carry or conduct, move. Fred-
erick v. Great Northern Ry. Co., 207 Wis. 234, 240
N.W. 387, 390. The doing of something effectual;
the bringing of someone to account, or the accom-
plishment of some definite purpose. Landrum v.
Fulton, 47 Ohio App. 376, 191 N.E. 917, 918.
BRING ABOUT. To procure, implies completion.
Jackson v. Thompson, Tex.Civ.App., 74 S.W.2d
1055, 1057.
BRING INTO. To import, U. ,S. v. Gully, D.C.N.
Y., 9 F.2d 959; to introduce, Sturgeon v. State,
17 Ariz. 513, 154 P. 1050, 1055, L.R.A.1917B, 1230.
BRING SUIT. To "bring" an action or suit has a
settled customary meaning at law, and refers to
the initiation of legal proceedings in a suit. Lake
& Co. v. King County, 4 Wash.2d 651, 104 P.2d
599, 601. A suit is "brought" at the time it is
commenced. Hames v. Judd, Com.Pl., 9 N.Y.Supp.
743, 30 St.R. 666, 16 Daly 110; Goldenberg v.
Murphy, 108 U.S. 162, 2 Sup.Ct. 388, 27 L.Ed. 686;
Buecker v. Carr, 60 N.J.Eq. 300, 47 Atl. 34.
"Brought" and "commenced" in statutes of limita-
tions are commonly deemed to have been used
interchangeably. Hannaman v. Gordon, Tex.Com.
App., 261 S.W. 1006, 1008. Under such statutes,
the suit may be "brought," when the summons
subsequently served is issued. Mill Creek & Mine-
hill Na y . & R. Co. v. United States, D.C.Pa., 246
F. 1013, 1016. Under a statute providing that
no action shall be "brought or maintained",
"brought" applies to actions not yet instituted.
Bruenn v. North Yakima School Dist. No. 7,
Yakima County, 101 Wash. 374, 172 P. 569, 571.
"Institute and prosecute" and "bring suit" as
synonymous. Traders & General Ins. Co. v. Spil-
lers, Tex.Civ.App., 88 S.W.2d 738, 740.
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BROKER
BRING UP. Nurse, rear, and educate child until
full age. In re Bamber's Estate, 147 Misc. 712,
265 N.Y.S. 798.
BRINGING ACTION TO TRIAL. Motion to re-
set case for trial as "bringing action to trial".
Craghill v. Ford, 127 Cal.App. 661, 16 P.2d 343,
346.
BRINGING ERROR. Writ of error is considered
as brought at time it is filed in court which ren-
ders judgment. Girard Fire & Marine Ins. Co. v.
Commonwealth Building & Loan Ass'n, C.C.A.
Tex., 32 F.2d 736.
BRINGING MONEY INTO COURT. The act of
depositing money in the custody of a court or of
its clerk or marshal, for the purpose of satisfying
a debt or duty, or to await the result of an inter-
pleader. Dirks v. Juel, 59 Neb. 353, 80 N.W. 1045.
BRIS. In French maritime law. Literally, break-
ing; wreck. Distinguished from naufrage, (q. v.).
BRISTOL BARGAIN. In English law. A con-
tract by which A. lends B. £1,000 on good security,
and it is agreed that £500, together with interest,
shall be paid at a time stated; and, as to the oth-
er £500, that B., in consideration thereof, shall pay
to A. £100 per annum for seven years. Wharton.
BRITISH COLUMBIA. The territory on the
north-west coast of North America, once known
by the designation of "New Caledonia." Its gov-
ernment is provided for by 21 & 22 Vict. c. 99.
Vancouver Island is united to it by the 29 & 30
Vict. c. 67. See 33 & 34 Vict. c. 66.
BRITISH SUBJECT. Any person owing perma-
nent allegiance to crown. U. S. ex rel. Graber v.
Karnuth, C.C.A.N.Y., 30 F.2d 242, 243.
BRITISH THERMAL UNIT. The amount of heat
required to raise a pound of water one degree
Fahrenheit. Shawnee Gas & Electric Co. v. Cor-
poration Commission of Oklahoma, 111 Okl. 13,
237 P. 844.
BROAD INTERPRETATION. That interpretation
of Constitution or statute which, brushing aside
minor objections and trivial technicalities, ef-
fectuates intent of act. In re Senate Resolution
No. 2 Concerning Constitutionality of House Bill
No. 6, 94 Colo. 101, 31 P.2d 325, 332.
BROCAGE. The wages, commission, or pay of a
broker (also called "brokerage"). Also the avo-
cation or business of a broker.
BROCARD. In old English law. A legal maxim.
"Brocardica Juris," the title of a small book of
legal maxims, published at Paris, 1508.
BROCARIUS, BROCATOR. In old English and
Scotch law. A broker; a middleman between buy-
er and seller; the agent of both transacting par-
ties. Bell; Cowell.
BROCELLA. In old English law. A wood, a
thicket or covert of bushes and brushwood. Cow-
ell; Blount.
Black's Law Dictionary Revised 4th Ed.-16
BROKEN. Impoverishment. Walsh v. Kennedy,
115 Mont. 551, 147 P.2d 425, 430.
BROKEN STOWAGE. In maritime law. That
space in a ship which is not filled by her cargo.
BROKER. An agent employed to make bargains
and contracts for a compensation. Story, Ag.
28; Payne v. Ponder, 139 Ga. 283, 77 S.E. 32, 34.
A dealer in securities issued by others. White v.
Financial Guarantee Corporation, 13 Cal.App.2d
93, 56 P.2d 550, 553. A middleman or negotiator
between parties. San Jacinto Life Ins. Co. v.
Brooks, Tex.Civ.App., 274 S.W. 648, 650; Messick
v. Johnson, 155 Okl. 139, 8 P.2d 28, 30; Gile v.
Tsutakawa, 109 Wash. 366, 187 P. 323, 326; Civil
Code La. art. 3016. A person dealing with an-
other for sale of property. Davis v. Chipman,
210 Cal. 609, 293 P. 40, 44. A person whose busi-
ness it is to bring buyer and seller together.
Keys v. Johnson, 68 Pa. 42. The term extends to
almost every branch of business, to realty as well
as personalty. Richmond Mortgage & Loan Cor-
poration v. Rose, 142 Va. 342, 128 S.E. 604, 605.
A voyage is called a "broker" where no fish are
caught on a fishing voyage or from some other
reason there are no proceeds from a fish auction.
The Dirigo First, D.C.Mass., 60 F.Supp. 675.
For distinction between "commission merchant"
and "broker," see Commission Merchant. For
"Factor" and "broker" as synonymous or distin-
guishable, see Factor.
Ordinarily, the term is applied to one acting for others
but is applicable to one in business of negotiating pur-
chases or sales for himself. McCornick & Co., Bankers, v.
Tolmie Bros., 42 Idaho 1, 243 P. 355, 358; Johnson v.
Winslow, 155 Misc. 170, 279 N.Y.S. 147.
A "broker" is an agent with special and limited author-
ity. Stephenson v. Golden, 279 Mich. 710, 276 N.W. 849,
858; Portsmouth Cotton Oil Refining Corp. v. Madrid Cot-
ton Oil Co., 200 Ala. 634, 77 So. 8, 9. A middleman, as dis-
tinguished from a broker, is employed merely to bring the
parties together when each desires to exchange his prop-
erty for that of the other, or where one desires to sell and
the other to purchase and his services are not rendered as
the agent of either party; but a "broker" is the agent of
a party, employed to procure a customer or to effect the
sale or exchange. Tracey v. Blake, 229 Mass. 57, 118 N.E.
271, 272.
Brokers are of many kinds, the most important
being enumerated and defined as follows:
Exchange Broker
See Exchange Broker.
Merchandise Brokers
Buyers and sellers of goods and negotiators be-
tween buyer and seller, but without having the
custody of the property.
Money-Broker
A money-changer; a scrivener or jobber; one
who lends or raises money to or for others.
Note Brokers
Negotiators of the discount or sale of commer-
cial paper.
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BROKER
Pawnbrokers
Lenders of money on goods deposited with them
in pledge, taking high rates of interest.
Real Estate Brokers
Persons who procure the purchase or sale of
land, acting as intermediary between vendor and
purchaser, and who negotiate loans on real-estate
security, manage and lease estates, etc. Latta v.
Kilbourn, 150 U.S. 524, 14 S.Ct. 201, 37 L.Ed. 169;
Abraham v. Wasaff, 111 Okl. 138, 239 P. 138, 140.
A broker employed in negotiating the sale, pur-
chase, or exchange of lands on a commission con-
tingent on success. Oregon Home Builders v.
Montgomery Inv. Co., 94 Or. 349, 184 P. 487, 491.
A person engaged in business to such an extent
that it is his vocation or partial vocation. Morris
v. O'Neill, 239 Mich. 663, 215 N.W. 8, 9; Kolb v.
Burkhardt, 148 Md. 539, 129 A. 670, 672.
Ship-Brokers
Who transact business between the owners of
ships and freighters or charterers, and negotiate
the sale of vessels.
Stock. Brokers
Brokers employed to buy and sell for their prin-
cipals stocks, bonds, government securities, etc.
The term "broker" applies as well to a broker on
the Board of Trade as to one on the Stock Ex-
change. Cutler v. Pardridge, 182 Ill.App. 350, 358.
BROKERAGE. The wages or commissions of a
broker; also, his business or occupation.
BROKERAGE CONTRACT. A contract of agen-
cy, whereby broker is employed to make contracts
of kind agreed upon in name and on behalf of his
principal, and for which he is paid an agreed
commission. Nolen's Adm'r v. Robinson, 213 Ky.
752, 281 S.W. 1034, 1036; Hardesty v. Martin
Ebersbach Co., C.C.A.Ohio, 294 F. 5, 6. A uni-
lateral contract wherein the principal makes an
offer which is interpreted as promise to pay bro-
ker a commission in consideration of his produc-
ing a buyer ready, able, and willing to buy the
property on the principal's terms. In re Cowan's
Estate, Sur., 13 N,Y.S.2d 374, 376.
BROSSUS. Bruised, or injured with blows,
wounds, or other casualty. Cowell.
BROTHEL. A bawdy-house; a house of ill fame;
a common habitation of prostitutes. United
States v. Casey, D.C.Ohio, 247 F. 362, 364.
BROTHER. One person is a brother "of the whole
blood" to another, the former being a male, when
both are born from the same father and mother.
He is a brother "of the half blood" to that other
(or half-brother) when the two are born to the
same father by different mothers or by the same
mother to different fathers.
The term may embrace half brothers. Thompson v.
Smith, 102 Okl. 150, 227 P. 77, 80; Darson v. Moore, 163
Miss. 705, 142 So. 447, 452. It may be deemed to embrace
only a blood brother. Droney v. U. S., D.C.D.C., 59 F.
Supp. 154, 155
In the civil law, the following distinctions are observed :
Two brothers who descend from the same father, but by
different mothers, are called "consan g uine" brothers. If
they have the same mother, but are begotten by different
fathers, they are called "uterine" brothers. If they have
both the same father and mother, they are denominated
brothers "germane."
BROTHER-IN-LAW. A wife's brother or a sis-
ter's husband. There is not any relationship, but
only affinity, between brothers-in-law. Farmers'
L. & T. Co. v. Iowa Water Co., C.C., 80 Fed. 46g.
See State v. Foster, 112 La. 533, 36 So. 554. Two
men are not brothers-in-law from the circum-
stance merely of having married sisters. Cruce
v. State, 87 Fla. 406, 100 So. 264, 265.
BROTHERHOOD AND GUESTLING, COURT OF.
The Brotherhood was a conference of seven towns
(i. e., the Cinque Ports and two other ancient
towns) as to the provision of the necessary ships
and as to arranging for the herring sale at Yar-
mouth, and for other such purposes. The Guest-
ling was rather a wider meeting, at which not
merely the Brotherhood, but deputies from other
associated towns were present for the discussion
of subjects of common interest to all.
BROUGHT. Taken; carried. United States v.
Townsend, D.C.N.Y., 219 F. 761, 762. Past tense
of "bring." Frederick v. Great Northern Ry. Co.,
207 Wis. 234, 240 N.W. 387, 390, 80 A.L.R. 984.
A proceeding is not "brought" as regards defendant until
process has been issued from an appropriate court in good
faith intending or making an effort to serve it. City of
Revere v. Special Judge of Dist. Court of Chelsea, 262 Mass.
393, 160 N.F. 431, 433. A writ of error is not -brought"
until it is filed or lodged in the court, or with the clerk
of the court, which rendered the judgment. U. S. v.
Shaffer, D.C.Wash., 278 F. 549, 531.
BROUGHT IN QUESTION UPON THE RECORD.
The constitutionality of an act is "brought in ques-
tion upon the record" when it is clearly questioned
by the allegation of any pleading, or by any other
formal objection filed in the case. Brosco v
Frost, 63 R.I. 1, 6 A.2d 705, 706.
BROUGHT TO THE ATTENTION OF. Equiva-
lent to the expression "made known to." State v.
Sullivan, 159 La. 589, 105 So. 631, 636.
BROUGHT TO TRIAL. An action is not brought
to trial until the trial is commenced. Miller &
Lux v. Superior Court of California in and for
Merced County, 192 Cal. 333, 219 P. 1006, 1009.
BROWN DECREE. A decree which terminates
marriage without specifying in whose favor issue
as to grounds for divorce was decided. Spector v.
Spector, 382 P.2d 659, 666, 94 Ariz. 175.
BRUARIUM. In old English law. A heath
grQund; ground where heath grows. Spelman.
BRUGBOTE. See Brigbote.
BRUILLUS. In old English law. A wood or
grove; a thicket or clump of trees in a park or
forest. Cowell.
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BUILDER
BRUISE. In medical jurisprudence. A contusion;
an injury upon the flesh of a person with a blunt
or heavy instrument, without solution of continui-
ty, or without breaking the skin. Shadock v. Road
Co., 79 Mich. 7, 44 N.W. 158. See Contusion.
BRUKBARN. In old Swedish law. The child of
a woman conceiving after a rap e, which was made
legitimate. Literally, the child of a struggle.
Burrill.
BRUSHING. Digging of space in middle of bot-
tom of mine entry or room neck in which to lay
track. Schillings v. Big Creek Coal Co., Mo.App.
277 S.W. 964, 965.
BRUTUM FULMEN. An empty noise; an empty
threat. A judgment void upon its face which is in
legal effect no judgment at all, and by which no
rights are divested, and from which none can be
obtained, and neither binds nor bars anyone. Dol-
lert v. Pratt-Hewit Oil Corporation, Tex.Civ.App.,
179 S.W.2d 346, 348.
BS. Impurities in crude oil. Crude Oil Con-
tracting Co. v. Insurance Co. of North America,
C.C.A.Okl., 118 F.2d 476.
B.T.U. "British Thermal Units." Bennett v. Pis-
citello, 170 Misc. 177, 9 N.Y.S.2d 69, 71.
BUBBLE. An extravagant or unsubstantial proj-
ect for extensive operations in business or com-
merce, generally founded on a fictitious or exag-
gerated prospectus, to ensnare unwary investors.
Companies formed on such a basis or for such pur-
poses are called "bubble companies." The term
is chiefly used in England.
BUBBLE ACT. The statute 6 Geo. I. c. 18 (1719),
"for restraining several extravagant and unwar-
rantable practices herein mentioned," prompted
by the collapse of the "South Sea Project." It
was mostly repealed by the statute 6 Geo. IV. c. 91.
BUCK SWAMPER. An employee of lumber com-
pany to mark timber and brush in a wooded area
to be cut later for the formation of a road. De-
masters v. State Compensation Com'r, 112 W.Va.
498, 165 S.E. 667.
BUCKET SHOP. An office or place (other than
a regularly incorporated or licensed exchange)
where persons engage in pretended buying and
selling of commodities. Connor v. Black, 119 Mo.
126, 24 S.W. 184; Gatewood v. North Carolina,
203 U.S. 531, 27 S.Ct. 167, 51 L.Ed. 305.
BUCKETING. Receipt of orders to purchase and
sell stock without intention of executing orders
and without execution of orders. Kaiser v. But-
chart, 200 Minn. 545, 274 N.W. 680, 683, 113 A.L.R.
847.
BUCK'S EXTENSION PROCESS. Some uniform,
continuous force or pull applied to leg or foot be-
low break to overcome natural contraction of mus-
cles of thigh. Sweet v. Douge, 145 Wash. 142, 259
P. 25. See Counterextension.
BUCKSTALL. A toil, net, or snare, to take deer.
4 Inst. 306.
BUDGET. A balance sheet or statement of esti-
mated receipts and expenditures. Appalachian
Electric Power Co. v. City of Huntington, 115 W.
Va. 588, 177 S.E. 431, 433; a plan or method where-
by expenditures are controlled. Kistler v. Carbon
County, 154 Pa.Super. 299, 35 A.2d 733, 735;
An estimate. Board of Sup'rs of Chesterfield
County v. Chesterfield County School Board, 182
Va. 266, 28 S.E.2d 698, 703.
A name given in England to the statement annually pre-
sented to parliament by the chancellor of the exchequer,
containing the estimates of the national revenue and ex-
penditure.
BUDGET SYSTEM. A system by which income
and expenditure for definite period are balanced.
Rowe v. Stanley County, 52 S.D. 516, 219 N.W.
122, 123,
BUFFER. A contrivance to mitigate the shock
by cars coming together rather than a safety ap-
pliance; an elastic apparatus for deadening the
jar caused by the collision of bodies. George v.
Atchison, T. & S. F. Ry. Co., 102 Kan. 774, 178
P. 403, 404.
"Agency," "adjunct," "branch," "instrumentality,"
"dummy," "tool" and "buffer" as synonymous. Lowen-
dahl v. Baltimore & 0. R. Co., 247 App.Div. 144, 287 N.Y.S.
62, 74.
BUFFET. A public place for lunch or light re-
freshments. McCormick v. Brennan, 224 Ill.App.
251, 254.
BUG. Vibrating horizontal arm for the semi-au-
tomatic production of code dots, as distinguished
from the Morse key. Vibroplex Co. v. J. H. Bun-
nell & Co., D.C.N.Y., 13 F.2d 528.
BUGGERY. A carnal copulation against nature;
a man or a woman with a brute beast, a man with
a man, or man unnaturally with a woman. 3 Inst.
58; 12 Coke, 36. Ausman v. Veal, 10 Ind. 356, 71
Am.Dec. 331; Com. v. J., 21 Pa.Co.Ct.R. 626. This
term is often used interchangeably with "sodo-
my"; but even when so used, it does not neces-
sarily include the act called "fellatio" or "fella-
tion." State v. Murry, 136 La. 253, 66 So. 963, 964.
See Sodomy.
BUILD. To construct and raise anew. Attorney
General ex rel. Gibson v. Board of Sup'rs of Mont-
calm County, 141 Mich, 590, 104 N.W. 792, 794.
To form by uniting materials into a regular struc-
ture. United States v. Blair, C.C.N.Y., 190 F. 372,
374. The term may also be employed in the sense
of obtain, secure, or acquire. Verner v. Muller,
89 S.C. 545, 72 S.E. 393.
"Build" is not synonymous with amend, repair, or main-
tain. State v. White, 16 R.I. 591, 18 A. 179; Hutchinson v.
City of Olympia, 2 Wash.T. 314, 5 P. 606, 608. But it has
been held that a grant of power to build a railroad, or a
requirement that certain persons shall build bridges, may
include the power or duty of maintenance or repair. Cen-
tral R. Co. v. Collins, 40 Ga. 582, 624; Franklin County
Com'rs v. White Water Valley Canal Co., 2 Ind. 162, 163.
BUILDER. One whose occupation is the building
or erection of structures, the controlling and di-
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BUILDING
recting of construction, or the planning, construct-
ing, remodeling and adapting to particular uses
buildings and other structures. Turner v. Haar,
114 Mo. 335, 21 S.W. 737, 738. One who puts a
structure into permanent form. Kansas City
Southern Ry. Co. v. Wallace, 38 Okl. 233, 132 P.
908, 911, 46 L.R.A.,N.S., 112. One who builds.
Hopkins v. Department of Labor and Industries,
190 Wash. 251, 67 P.2d 872, 875. The term may be
synonymous with "contractor." State v. Clark,
43 Wash. 664, 86 P. 1067. It may also designate
a shipwright, a mason, etc., and likewise an archi-
tett. Savannah & C. R. Co. v. Callahan, 49 Ga.
506, 511. Contra, as to "architect," People ex
rel. v. Lower, 251 Ill. 527, 96 N.E. 346, 347, 36
L.R.A. 1203.
BUILDING. An edifice. State v. Ornelas, 42
N.M. 17, 74 P.2d 723, 725; People v. Chase, 117
Cal.App.Supp. 775, 1 P.2d 60, 61; A structure.
State v. Ornelas, 42 N.M. 17, 74 P.2d 723, 725.
A fabric built or constructed. State v. Ornelas,
42 N.M. 17, 74 P.2d 723, 725. That which is built.
Brown v. Sikes, 188 S.C. 288, 198 S.E. 854, 856;
People v. Chase, 117 Cal.App.Supp. 775, 1 P.2d
60, 61.
A fabric or edifice designed to stand more or less per-
manently. Brown v. Sikes, 188 S.C. 288, 198 S.E. 854, 856;
a fabric, structure, or edifice, designed for the habitation
of men or animals or for the shelter of property. People
v. Gillespie, 344 Ill. 290, 176 N.E. 316, 318. A structure or
edifice erected by man, composed of stone, wood, brick,
marble or other proper substance, and intended for use or
convenience. State v. Crouse, 117 Me. 363, 104 A. 525, 526;
Sacks v. Legg, 219 Ill.App. 144, 147; Rabb v. W. P. Ellison,
Inc., 89 N.J.Law, 416, 99 A. 119, 120. A structure or edifice
inclosing a space within its walls, and usually, but not
necessarily, covered with a roof. State v. Elliott, 198 Iowa
71, 199 N.W. 270, 271; Netter v. Scholtz, 282 Ky. 493, 138 S.
W.2d 951, 953.
"Erecting" as synonym. Board of Com'rs of Guadalupe
County v. State, 43 N.M. 409, 94 P.2d 515, 516, 520; "prem-
ises" as synonym. Everett v. Patrons' & Farmers' Mut.
Fire Ins. Co. of Jackson County, 222 Mo.App. 1010, 7 S.W.
2d 463, 468.
The term generally, though not always, implies the idea
of a habitation for the permanent use of man, or an erec-
tion connected with his permanent use. Rouse v. Catskill
& N. Y. Steamboat Co., 13 N.Y.S. 126, 127, 35 N.Y.St.Rep.
491; It imports tangibility, Wells Fargo & Co. v. Jersey
City, D.C.N.J., 207 F. 871, 876, and may include the land on
which it stands, as well as adjacent land, Thomas v. Long,
182 Iowa, 859, 166 N.W. 287, 288; Dallas Land & Loan Co.
v. Garrett, Tex.Civ.App., 276 S.W. 471, 473; Freedman v.
S. S. Kresge Co., 290 Mass. 114, 194 N.E. 829, 830. It in-
cludes many different kinds of structures and edifices.
Great Eastern Casualty Co. v. Blackwelder, 21 Ga.App. 586,
94 S.E. 843, 844. The identity or difference of meaning of
the words "building," "improvement" and "structure" de-
pends upon context in connection with which they are used.
-Lanier v. Lovett, 25 Ariz. 54, 213 P. 391, 394.
A ship as building within gambling statute. People v.
Chase, 117 Cal.App.Supp. 775, 1 P.2d 60, 61.
BUILDING A FIRE. "Kindling a fire" and "build-
ing a fire" are equivalent. State v. Merrill, 132
Me. 103, 167 A. 172, 173.
BUILDING AND LOAN ASSOCIATION. An or-
ganization for the purpose of accumulating a fund
by subscriptions and savings of its members to
assist them in building or purchasing for them-
selves dwellings or real estate by the loan to them
of the requisite money. McCauley v. Association,
97 Tenn., 13 Pickle, 421, 37 S.W. 212, 213, 35 L.R.A.
244; Rhodes v. Missouri Savings & Loan Co., 173
Ill. 621, 50 N.E. 998, 1000, 43 L.R.A. 93. A juristic
person organized by government to accomplish
certain ends, which may be public or quasi public.
Hopkins Federal Savings & Loan Ass'n v. Cleary,
Wis., 296 U.S. 315, 56 S.Ct. 235, 80 L.Ed. 251, 100
A.L.R. 1403. Quasi public corporations chartered
to encourage thrift and promote ownership of
homes. Hopkins Federal Savings & Loan Ass'n v.
Cleary, Wis., 296 U.S. 315, 56 S.Ct. 235, 237, 241, 80
L.Ed. 251, 100 A.L.R. 1403.
A private corporation designed for the purpose of ac-
cumulating into its treasury, by means of the gradual pay-
ment by its members of their stock subscriptions in peri-
odical installments, a fund to be invested from time to time
in advances made to such shareholders on their stock as
may apply for this privilege on approved security, the
borrowing members paying interest and a premium for
this preference in securing an advancement over other
members, and continuing to pay the regular installments
on their stock in addition, all of which funds, together
with payments made by the nonborrowing members, in-
cluding fines, forfeitures, and other like revenues, go into
the common fund until it, with the profits thereon, ag-
gregates the face value of all the shares in the association,
the legal effect of which is to extinguish the liability in-
curred for the loans and advancements, and to distribute
to each nonborrowing member the par value of his stock.
Washington Nat. Building, Loan & Investment Ass'n v.
Stanley, 38 Or. 319, 63 P. 489, 492, 84 Am.St.Rep. 793.
See, also, Wilkinson v. Mutual Bldg. & Sa y . Ass'n, C.C.A.
Wis., 13 F.2d 997, 998.
BUILDING IS COVERED. The words ordinarily
mean that the property shall be insured in the
standard form of insurance from that instant for
a reasonable time until either the policy or policies
can be written out, or their issuance approved or
disapproved or some other temporary impediment
to the complete formal contract of insurance can
be removed. Shumway v. Home Fire & Marine
Ins. Co. of California, 301 Mass. 391, 17 N.E.2d
212, 214.
BUILDING LEASE. A lease of land for a long
term of years, usually 99, at a rent called a
"ground rent," the lessee covenanting to erect cer-
tain edifices thereon according to specification, and
to maintain the same, etc., during the term.
BUILDING LIEN. The statutory lien of a ma-
terial-man or contractor for the erection of a
building. June v. Doke, 35 Tex.Civ.App. 240, 80
S.W. 406.
BUILDING LINE. A line established by munici-
pal authority, to secure uniformity of appearance
in the streets of the city, drawn at a certain uni-
form distance from the curb or from the edge of
the sidewalk, and parallel thereto, upon which
the fronts of all buildings on that street must be
placed, or beyond which they are not allowed to
project. See Tear v. Freebody, 4 C.B.,N.S., 263.
As used in a city charter authorizing the establishment
of a "building line" along boulevards, the term means a
mark of division or demarkation; an outline or contour;
a limit or boundary ;-not a straight line. City of St.
Louis v. Handlan, 242 Mo. 88, 145 S.W. 421, 422, 423. As to
the meaning of the term in town and city plats, see Simp-
son v. Mikkelsen, 196 Ill. 575, 63 N.E. 1036, 1037.
BUILDING LOAN AGREEMENT. An agreement
by which one undertakes to advance to another
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BULLION
money to be used primarily in erection of build-
ings. York Mortg. Corporation v. Clotar Const.
Corporation, 254 N.Y. 128, 172 N.E. 265, 269.
BUILDING MATERIAL. Material used in con-
struction work. Wood Preserving Corporation v.
State Tax Commission, 235 Ala. 438, 179 So. 254,
255. Material essential to erection or construc-
tion of house or other structure, Mutual Lumber
Co. v. Sheppard, Tex.Civ.App., 173 S.W.2d 494, 497,
498, 500.
BUILDING OR STRUCTURE USED AS CHURCH.
A building wholly dedicated to purposes of re-
ligious worship. Miles v. McKinney, 174 Md. 551,
199 A. 540, 547, 117 A.L.R. 207.
BUILDING PERMIT. A permit to erect a build-
ing. Commissioners of Easton v. Covey, 74 Md.
262, 22 A. 266; Commonwealth v. Devlin, 305 Pa.
440, 158 A. 161, 163.
BUILDING RESTRICTIONS. Covenants creating
easement running with land in each deed contain-
ing restrictions. Strauss v. J. C. Nichols Land
Co., 327 Mo. 205, 37 S.W.2d 505, 508.
BUILDING SITE. As used in contract, for filling
of the "building site" to grade, term contemplated
the entire lot. Myevre v. Liberty Realty & Securi-
ties Co., 156 La. 496, 100 So. 694, 696.
BUILDING SOCIETY. An association in which
the subscriptions of the members form a capital
stock or fund out of which advances may be made
to members desiring them, on mortgage security.
BUL. In the ancient Hebrew chronology, the
eighth month of the ecclesiastical, and the second
of the civil year. It has since been called "Marsh-
evan," and answers to our October.
BULK. Unbroken packages. Merchandise which
is neither counted, weighed, nor measured. See
Texas & P. Ry. Co. v. Gate City Fertilizer Co.,
Tex.Civ.App., 176 S.W. 868, 869.
Bulk is said of that which is neither counted, weighed,
nor measured. A sale by the bulk is the sale of a quanti-
ty such as it is, without measuring, counting, or weighing.
Civil Code La. art. 3556, par. 6.
When used in relation to sale of goods by sample, "bulk"
means the whole quanti,, , of goods sold, which is supposed
to be fairly represented by the sample. American Paper
Products Co. v. Morton Salt Co., Mo.App., 279 S.W. 761,
763. This is the meaning which the word has as used in
Uniform Sales Act Pa. § 14, P.L. c. 543; 69 P.S. § 123,
F. A. D. Andrea, Inc., v. Dodge, C.C.A.Pa., 15 F.2d 1003,
1005.
BULK SALES ACTS. A class of statutes designed
to prevent the defrauding of creditors by secret
sale in bulk of all or substantially all of a mer-
chant's stock of goods. A. J. Long Cigar & Gro-
cery Co. v. Harvey, 33 Ga.App. 236, 125 S.E. 870;
Wolfe v. Bellfair Hat Co., Sup., 47 N.Y.S.2d 908,
910.
BULK WINDOWS. "Bulk windows" include show
windows as well as bay windows, sometimes
called "bow windows," within a statute confer-
ring on cities the power to regulate certain ob-
structions in the street. City of Baltimore v. Nird-
linger, 131 Md. 600, 102 A. 1014, 1019.
BULL. In ecclesiastical law. An instrument
granted by the pope of Rome, and sealed with a
seal of lead, containing some decree, command-
ment, or other public act, emanating from the pon-
tiff. Bull, in this sense, corresponds with edict
or letters patent from other governments. Cow-
ell; 4 Bl.Comm. 110; 4 Steph.Comm. 177, 179.
There are three kinds of apostolical rescripts—the brief,
the signature, and the bull; which last is most commonly-
used in legal matters.
This is also a cant term of the Stock Exchange,
meaning one who speculates for a rise in the mar-
ket.
BULL AND BOAR. These animals, by the an-
cient custom of some places, were required to be
kept by the parson for the use of his parishioners,
in consideration of his having tithes of calves and
pigs. 1 Rolle Abr. 559.
BULLDOZER. A blade, the arms of which are
fastened to a tractor and hold the blade in front of
the tractor. Eldredge v. Sargent, 150 Kan. 824,
96 P.2d 870, 871.
BULL-HEADED. Headstrong, obstinate, stupidly
stubborn. Enloe v. Southern Ry. Co., 179 N.C. 83,
101 S.E. 556, 558.
BULL PEN. A certain place of confinement at a
penitentiary. State v. Kelley, 118 Or. 397, 247 P.
146, 148.
BULLA. A seal used by the Roman emperors,
during the lower empire; it was of four kinds,—
gold, silver, wax, and lead.
BULLET. Synonymous with "shot," meaning a
projectile, particularly a solid ball or bullet that
is not intended to fit the bore of a piece. Green
v. Commonwealth, 122 Va. 862, 94 S.E. 940, 941.
BULLETIN. An officially published notice or an-
nouncement concerning the progress of matters of
public importance. In France, the registry of the
laws.
BULLETIN DES LOIS. In France, the official
sheet which publishes the laws and decrees; this
publication constitutes the promulgation of the
law or decree.
BULLION. Gold and silver intended to be coined.
The term is usually applied to a quantity of these metals
ready for the mint, but as yet lying in bars, plates, lumps,
or other masses ; but it may also include ornaments or
dishes of gold and silver, or foreign coins not current as
money, when intended to be descriptive of its adaptability
to be coined, and not of other purposes to which it may be
put. Thalheim v. State, 38 Fla. 169, 20 So. 938. The term
may import money. Emery Bird Thayer Dry Goods Co. v.
Williams, C.C.A.Mo., 98 F.2d 166, 171.
BULLION FUND. A fund of public money main-
tained in connection with the mints, for the pur-
pose of purchasing precious metals for coinage,
and also of enabling the mint to make returns of
coins to private depositors of bullion without wait-
ing until such bullion is actually coined.
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BUM-BAILIFF '
BUM-BAILIFF. A person employed to dun one
for a debt; a bailiff employed to arrest a debtor.
Probably a vulgar corruption of "bound-bailiff"
(q. v.).
BUNCO GAME. Any trick, artifice, or cunning
calculated to win confidence and to deceive, wheth-
er by conversation, conduct, or suggestion. State
v. Ferrato, 72 Wash. 112, 129 P. 898, 899.
BUNDA. In old English law. A bound, boundary,
border, or limit (terminus, limes).
BUNDLE, v. To sleep on the same bed without
undressing; applied to the custom of a man and
woman, especially lovers, thus sleeping. A. & E.
Ency. This custom is adverted to in Seagar v.
Sligerland, 2 Caines, N.Y., 219, and Hollis v. Wells,
3 Clark, Pa., 169.
BUOY. In maritime law. A piece of wood or
cork, or a barrel, raft, or other thing, made secure
and floating upon a stream or bay, intended as a
guide and warning to mariners, by marking a
spot where the water is shallow, or where there
is a reef or other danger to navigation, or to mark
the course of a devious channel. Buoys are regu-
lated by federal legislation; see 14 U.S.C.A. § 87.
BURDEN. A burden, as on interstate commerce,
means anything that imposes either a restrictive
or onerous load upon such commerce. State of
Missouri v. Kansas Natural Gas Co., D.C.Mo., 282
F. 341, 345.
Where the Railroad Commission ordered construction of
a viaduct carrying a street over railroad tracks, construc-
tion and operation of street car tracks on the viaduct was
not an "additional burden," and did not entitle abutting
owners to damages. In eminent domain or condemnation
proceedings see In re Ely Ave. in City of New York, 88
Misc. 320, 150 N.Y.S. 698, 701.
BURDEN OF PROOF. (Lat. onus probandi.) In
the law of evidence. The necessity or duty of af-
firmatively proving a fact or facts in dispute on
an issue raised between the parties in a cause.
Willett v. Rich, 142 Mass. 356, 7 N.E. 776, 56 Am.
Rep. 684; People v. McCann, 16 N.Y. 58, 69 Am.
Dec. 642, 15 How.Pr. 503.
The term "burden of proof" is not to be confused with
"prima facie case," Kendall v. Brownson, 47 N.H. 200;
Carver v. Carver, 97 Ind. 511, or with expressions referring
to a similar idea, such as the "burden of evidence," Hyer
v. C. E. Holmes & Co., 12 Ga.App. 837, 79 S.E. 58, 60, or
"the burden of proceeding," Mason v. Geist, Mo.App., 263
S.W. 236, 237, or the burden of going forward with the
evidence, First Nat. Bank v. Ford, 30 Wyo. 110, 216 P. 691,
694, 31 A.L.R. 1441.
It is frequently said, however, to have two distinct mean-
ings : (1) the duty of producing evidence as the case pro-
gresses, and (2) the duty to establish the truth of the
claim by preponderance of the evidence, and though the
former may pass from party to party, the latter rests
throughout upon the party asserting the affirmative of the
issue. Sellers v. Kincaid, 303 Ill. 216, 135 N.E. 429, 433;
Stofer v. Dunham, Mo.App., 208 S.W. 641, 644,
Again "burden of proof" is sometimes used to refer mere-
ly to the rule of practice fixing the order of proof, as dis-
tinguished from the "preponderance of the evidence"
meaning the weight of evidence. Thompson v. Dyson, 120
Kan. 591, 244 P. 867, 868.
BUREAU. An office for the transaction of busi-
ness. A name given to the several departments
of the executive or administrative branch of gov-
ernment, or their divisions. In re Strawbridge, 39
Ala. 375; In re McLaughlin, 124 Misc. 766, 210
N.Y.S. 68, 72.
As applied to a division of an administrative depart-
ment, the term may include the operating force. People
v. Coffin, 202 Ill. App. 100.
BUREAUCRACY. A system in which the business
of government is carried on in departments, each
under the control of a chief, in contradistinction
from a system in which the officers of govern-
ment have a co-ordinate authority.
BURG, BURGH. A term anciently applied to a
castle or fortified place; a borough (q. v.). Spel-
man.
BURGAGE. A name anciently given to a dwell-
ing-house in a borough town. Blount.
BURGAGE-HOLDING. A tenure by which lands
in royal boroughs in Scotland were held of the
sovereign. The service was watching and ward-
ing, and was done by the burgesses within the
territory of the borough, whether expressed in
the charter or not.
BURGAGE-TENURE. In English law. One of
the three species of free socage holdings; a ten-
ure whereby houses and lands which were former-
ly the site of houses, in an ancient borough, are
held of some lord by a certain rent. There are a
great many customs affecting these tenures, the
most remarkable of which is the custom of Bor-
ough English. See Litt. § 162; 2 BLComm. 82.
BURGATOR. One who breaks into houses or in-
closed places, as distinguished from one who com-
mitted robbery in the open country. Spelman.
BURGBOTE. In old English law. A term applied
to a contribution towards the repair of castles
or walls of defense, or of a borough.
BURGENSES. In old English law. Inhabitants
of a burgus or borough; burgesses. Fleta, lib. 5,
c, 6, § 10.
BURGERISTH. A word used in Domesday, signi-
fying a breach of the peace in a town. Jacob.
BURGESS. In English law. An inhabitant or
freeman of a borough or town; a person duly and
legally admitted a member of a municipal corpo-
ration. Spelman; 3 Steph.Comm. 188, 189. A
magistrate of a borough. Blount. An elector or
voter; a person legally qualified to vote at elec-
tions. The word in this sense is particularly de-
fined by the statute 5 & 6 Wm. IV. c. 76, §§ 9, 13.
3 Steph.Comm. 192. A representative of a bor-
ough or town, in parliament. Co.Litt. 109a; 1
Bl.Comm. 174.
In American law. The chief executive officer
of a borough, bearing the same relation to its
government and affairs that the mayor does to
those of a city; so used in Pennsylvania. In Con-
necticut boroughs the board of burgesses cor-
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responds to the township board or board of
trustees in some other states, or to the common
council of a city. Cent. Dict.
BURGESS ROLL. A roll, required by the St. 5 &
6 Wm. IV. c. 76, to be kept in corporate towns or
boroughs, of the names of burgesses entitled to
certain new rights conferred by that act.
BURGH-BRECHE. A fine imposed on the com-
munity of a town, for a breach of the peace, etc.
BURGH ENGLISH. See Borough English.
BURGH ENGLOYS. Borough English (q. v.).
BURGHMAILS. Yearly payments to the crown
of Scotland, introduced by Malcolm III., and re-
sembling the English fee-farm rents.
BURGHMOTE. In Saxon law. A court of jus-
tice held semi-annually by the bishop or lord in
a burg, which the thanes were bound to attend
without summons.
BURGLAR. One who commits burglary. One
who breaks into a dwelling-house in the nighttime
with intent to commit a felony. O'Connor v.
Press Pub. Co., 34 Misc. 564, 70 N.Y.Supp. 367.
See Burglary.
BURGLARIOUSLY. In pleading. A technical
word which must be introduced into an indict-
ment for burglary at common law. Lewis v.
State, 16 Conn. 34; Reed v. State, 14 Tex.App. 665.
BURGLARITER. L. Lat. (Burglariously.) In
old criminal pleading. A necessary word in in-
dictments for burglary.
BURGLARY. The breaking and entering the
house of another in the nighttime, with intent to
commit a felony therein, whether the felony be
actually committed or not. Soders v. State, 81
Tex.Cr.R. 506, 195 S.W. 1146, 1147; Hunter v.
State, 29 Ind. 80; State v. Allen, 186 N.C. 302, 119
S.E. 504, 506; State v. Hodgdon, 89 Vt. 148, 94 A.
301, 302.
The common-law definition has been much modified by
statute in several of the states. Pen.Code Cal. § 459; Peo-
ple v. Mendelson, 264 Ill. 453, 106 N.E. 249, 251, L.R.A.
1915C, 627; State v. Dunlap, 103 N.J.Law, 209, 136 A. 510;
Burglary of private residence at night is "nighttime bur-
glary" and not ordinary "burglary." Shaffer v. State, 137
Tex.Cr.R. 476, 132 S.W.2d 263. Commission in nighttime
is not essential. People v. Glickman, 377 Ill. 360, 36 N.E.2d
720, 722, 723; State v. Williams, 189 La. 355, 179 So. 452.
Entry in the nighttime without breaking, or breaking and
entering in the daytime constitutes "burglary." State v.
Williams, 189 La. 355. 179 So. 452.
Intended commission of some other offense is essential.
Commonwealth v. Doran, 145 Pa.Super. 173, 20 A.2d 815,
816.
Entry into a house made in an unusual place with in-
tent to commit a felony or theft is a "burglary by break-
ing." Harroll v. State, 135 Tex.Cr.R. 65, 117 S.W.2d 103.
See Breaking.
BURGLARY IN THE FIRST DEGREE. Unlawful
and intentional breaking and. unlawful and inten-
tional entry in nighttime into dwelling house pres-
ently occupied, with intent to commit felony.
State v. Madden, 212 N.C. 56, 192 S.E. 859, 860.
Burglary committed "between sunset and sun-
rise". People v. Helsley, 41 Cal.App.2d 935, 108
P.2d 97, 98.
BURGOMASTER. The title given in Germany to
the chief executive officer of a borough, town, or
city; corresponding to our "mayor."
BURGUNDIAN LAW. See Lex Burgundionum.
BURGWHAR. A burgess (q. v.).
BURH. A fastness. The hill-top that has been
fortified as a burh. Very often it has given its
name to a neighboring village; it is the future
borough. The entrenchment around a great man's
house was a burh. See Maitland, Domesday and
Beyond, 183.
BURIAL. Act of burying a deceased person, sep-
ulture, interment, act of depositing a dead body
in the earth, in a tomb or vault, or in the water;
the act of interring the human dead. Brady v.
Presnell, 204 N.C. 659, 169 S.E. 278, 280. See Lay
v. State, 12 Ind.App. 362, 39 N.E. 768.
BURIAL INSURANCE. A contract based on le-
gal consideration whereby obligor undertakes to
furnish obligee or one of latter's relatives at death
burial reasonably worth fixed sum. Sisson v. Pra-
ta Undertaking Co., 49 R.I. 132, 141 A. 76.
BURIAL PLACE. A portion of ground set apart
for or occupied by grave, or as a grave or grave-
yard. Code 1932, § 9052. Leaphart v. Harmon,
186 S.C. 362, 195 S.E. 628, 629.
BURIAL PURPOSES. Continuing care, preserva-
tion, and ornamentation of the place of inter-
ment as included in term. People v. Rosehill
Cemetery Co., 371 Ill. 510, 21 N.E.2d 766, 770.
BURKING, BURKISM. Murder committed with
the object of selling the cadaver for purposes of
dissection, particularly and originally, by suffo-
cating or strangling the victim.
BURLAW COURTS. Courts consisting of neigh-
bors selected by common consent to act as judges
in determining disputes between neighbor and
neighbor.
BURLAWS. In Scotch law. Laws made by neigh-
bors elected by common consent in the burlaw
courts. Skene.
BURLESQUE. A plotless musical entertainment
consisting of a series of unrelated episodes and
dances, all with the purpose of depicting or sug-
gesting sexual subjects or objects. Bonserk Thea-
tre Corporation v. Moss, Sup., 34 N.Y.S.2d 541, 549.
BURN, n. A hurt, injury, or effect caused by burn-
ing. Webster, Dict.
A "first-degree burn" varies from redness to a blister.
A "second-degree burn" results where the skin is charred
or killed. Murphy v. Ludowici Gas & Oil Co., 96 Kan. 321,
150 P. 581, 582.
BURN, v. To consume with fire. See Hiatt v.
Travelers' Ins. Co., 197 Iowa 153, 197 N.W. 3, 4, 33
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A.L.R. 655; Pacific Creosoting Co. v. Thames &
Mersey Marine Ins. Co., D.C.Wash., 210 F. 958,
959.
"Burning," outside of laboratories and certain work-
shops, is a process of oxidation, which, if sufficiently vio-
lent, heats the elements involved to incandescence, and, if
combustible gases are given off, there is a flame. Scully
v. Bremer County Farmers' Mut. Fire Ins. Ass'n, 215 Iowa
368, 245 N.W. 280, 282.
The verb "to burn," iu an indictment for arson, is to be
taken in its common meaning of "to consume with fire."
Hester v. State, 17 Ga. 130. To constitute a "burning"
essential to arson, there must be a wasting or destruction
of the fibers or texture of the wood, no matter how small
in extent. People v. Oliff, 361 Ill. 237, 197 N.E. 777, 780;
it is not necessary that the building should be consumed or
materially injured and it is sufficient if fire is actually com-
municated to any part thereof, however small. State v.
Mutschler, 55 N. D. 120, 212 N.W. 832, 833; charring is
burning. State v. Pisano, 107 Conn. 630, 141 A. 660, 661.
BURNED OUT OF SIGHT. Merchandise is
"burned out of sight" when burned to an ash or
into such small particles that it might be washed
away by water or swept into debris. Hyland v.
Millers Nat. Ins. Co., D.C.Cal., 58 F.2d 1003, 1007.
BURNING FLUID. As used in policies of insur-
ance, this term does not mean any fluid which
will burn, but it means a recognized article of
commerce, called by that name, and which is a
different article from naphtha or kerosene. Put-
nam v. Insurance Co., C.C.N.Y., 4 Fed. 764;
Wheeler v. Insurance Co., 6 Mo.App. 235.
BURNING IN THE HAND. In old English crimi-
nal law, laymen, upon being accorded the benefit
of clergy, were burned with a hot iron in the
brawn of the left thumb, in order that, being
thus marked, they could not again claim their
clergy. 4 Bl.Comm. 367. This practice was finally
abolished by Stat. 19 Geo. III. c. 74; though before
that time the burning was often done with a cold
iron.
BURNT COTTON. Cotton which has been on
fire, and which has not been subsequently repicked
and rebaled. Southern Ry. Co. v. Pettit, C.C.A.
Tenn., 257 F. 663, 664.
BURROCHIUM. A burroch, dam, or small wear
over a river, where traps are laid for the taking of
fish. Cowell.
BURROWMEALIS. In Scotch law. A term used
to designate the rents paid into the king's private
treasury by the burgesses or inhabitants of a bor-
ough.
BURSA. Lat. A purse.
BURSAR. A treasurer of a college.
BURSARIA. The exchequer of collegiate or con-
ventual bodies; or the place of receiving, paying,
and accounting by the bursars. Also stipendiary
scholars, who live upon the burse, fund, or joint-
stock of the college.
BURYING ALIVE. In English law. The ancient
punishment of sodomites, and those who contract-
ed with Jews. Fleta, lib. 1, c. 27, § 3.
BURYING-GROUND. A place set apart for the
interment of the dead; a cemetery. Appeal Tax
Court v. Academy, 50 Md. 353.
BUS. A vehicle which serves passenger public,
but does not operate upon fixed tracks. Patillo v.
State, 120 Tex.Cr.R. 568, 47 S.W.2d 847.
BUSCARL, In Saxon and old English law. Sea-
men or marines. Spelman.
BUSHEL. A dry measure, containing four pecks,
eight gallons, or thirty-two quarts. But the di-
mensions of a bushel, and the weight of a bushel
of grain, etc., vary in the different states in con-
sequence of statutory enactments. Richardson v.
Spafford, 13 Vt. 245; Milk v. Christie, 1 Hill, N.Y.,
106; Hockin v. Cooke, 4 Term, 316.
BUSHIDO. Jap. The unwritten code of conduct
of the Samurai demanding loyalty to superiors
only, simplicity of living and military valor.
Treachery and brutality against one's enemies,
and self-sacrifice, blind loyalty and unquestioning
obedience to one's superiors are cardinal charac-
teristics of the code. 1945 Report of the Tenney
Joint Fact-Finding Committee on Un-American Ac-
tivities to the California Legislature, p. 49.
BUSINESS. The term "business" has no definite
or legal meaning. Connor v. City of University
Park, Tex.Civ.App., 142 S.W.2d 706, 715; it may be
an uncertain one. In re Frey's Will, 154 Misc.
421, 277 N.Y.S. 269, 272.
The term may mean or embrace:
Activity, Norman v. Southwestern R. Co., 42 Ga.App. 812,
157 S.E. 531, 533; In re Frey's Will, 277 N.Y.S. 269, 272,
154 Misc. 421; activity of some continuity, regularity and
permanency, means of material being and livelihood, Board
of Sup'rs of Amherst County v. Boaz, 176 Va. 126, 10 S.E.2d
498, 499. Activity or enterprise for gain, benefit, advan-
tage or livelihood, Union League Club v. Johnson, Cal.
App., 108 P.2d 487, 490. Activity which benefits corpora-
tion's organizers or members, O'Neil v. United Producers
& Consumers Co-op., 57 Ariz. 295, 113 P.2d 645, 648; affairs,
Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798, 802, Indus-
trial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418, 419;
any particular occupation or employment, Industrial Fibre
Co. v. State, 31 Ohio App. 347, 166 N.E. 418, 419; automo-
bile liability policy excepting liability to insured's chauf-
feurs while engaged in his "business," anything in which
insured desired to concern himself. Dickey v. General
Accident Fire & Life Assur. Corporation Limited of Perth,
Scotland, 328 Pa. 541, 195 A. 875 ; barter, Wills v. National.
Mineral Co., 176 Okl. 193, 55 P.2d 449, 453; busyness, Snell
v. Commissioner of Internal Revenue, C.C.A.Fla., 97 F.2d-
891, 892; calling, Gardner v. Trustees of Main St. M. E.
Church of Ottumwa, Iowa, 244 N.W. 667, 669, Morgan v.
Salt Lake City, 78 Utah 403, 3 P.2d 510, 513; capacity by
which results are reached, Norman v. Southwestern R. Co.,
42 Ga.App. 812, 157 S.E. 531, 533; In re Frey's Will, 277
N.Y.S. 269, 272, 154 Misc. 421; commercial or industrial
establishment or enterprise, Westor Theatres v. Warner
Bros. Pictures, D.C.N.J., 41 F.Supp. 757, 761; concern,
Industrial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E.
418, 419; constant or continuous or habitual employment
or occupation, Burk v. United States, C.C.A.Ala., 134 F.2d
879, 881; efforts of men to improve their economic condi-
tions and satisfy their desires, people ex rel. Atty. Gen. v.
Jersin, 101 Colo. 406, 74 P.2d 668, 670; employment, Indus-
trial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418, 419;
employment, occupation, or profession engaged in for gain
or livelihood, Mergenthaler Linotype Co. v. McNamee, 123
Neb. 71, 249 N.W. 92, 93; employment occupying substan-
tial portion of time and attention, Walsh v. Industrial Com-
mission, 345 Ill. 366, 178 N.E. 82, 83; energy by which
results are reached, Norman v. Southwestern R. Co., 42
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BUSINESS
Ga.App. 812, 157 S.E. 531, 533; In re Frey's Will, 277
N.Y.S. 269, 272, 154 Misc. 421; enterprise in which person
engaged shows willingness to invest time and capital on
future outcome, Doggett v. Burnet, 62 App.D.C. 103, 65
F.2d 191, 194; every legitimate avocation in life by which
honest support for family may be obtained, Postal Savings
& Loan Ass'n v. Powell, Tex.Civ.App., 47 S.W.2d 343, 352;
every step in a long, complicated financial or commercial
transaction, Business Management Corporation v. Depart-
ment of Industrial Relations, Cal.App., 123 P.2d 142, 143;
everything about which a person can be employed, Higgins
v. Commissioner of Internal Revenue, 312 U.S. 212, 61 S.Ct.
475, 478, 85 L.Ed. 783; exchange of things of value, Wills v.
National Mineral Co., 176 Okl. 193, 55 P.2d 449, 45.3; family
car doctrine, any benefit which may inure to the owner,
Donn v. Kunz, Ariz., 79 P.2d 965, 968; good will, In re
Frey's Will, 277 N.Y.S. 269, 272, 154 Misc. 421, In re Web-
er's Estate, 261 Pa. 561, 104 A. 735, 737; intercourse of a
commercial character, Karnuth v. U. S., on Petition of
Albro, for Cook, N. Y., 279 U.S. 231, 49 S.Ct. 274, 278, 73
L. Ed. 677; mercantile transactions in general, Industrial
Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418, 419;
occupation, Industrial Fibre Co. v. State, 31 Ohio App. 347,
166 N.E. 418, 419, Morgan v. Salt Lake City, 78 Utah 403,
3 P.2d 510, 513; occupation connected with operation or
details of barter, trade, industry or commerce, Bankers'
Holding Corporation v. Maybury, 161 Wash. 681, 297 P.
740, 743, 75 A.L.R. 1237; occupation or duty which requires
attention as a business, Taylor v. Seney, 52 Ohio App. 79,
3 N.E.2d 374, 376; opportunities, Norman v. Southwestern
R. Co., 42 Ga.App. 812, 157 S.E. 531, 533, In re Frey's Will,
277 N.Y.S. 269, 272, 154 Misc. 421; ordinary vocation, Ost-
lie v. H. F. Dirks & Son, 189 Minn. 34, 248 N.W. 283; pro-
fessions, Connor v. City of University Park, Tex.Civ.App.,
142 S.W.2d 706, 715; property, In re Frey's Will, 277
N.Y.S. 269, 272, 154 Misc. 421; In re Weber's Estate, 261
Pa. 561, 104 A. 735, 737; pursuit, Morgan v. Salt Lake City,
78 Utah 403, 3 P.2d 510, 513; regular profession, trade or
occupation, Bordo v. Grayek, 136 Pa.Super. 124, 7 A.2d 142,
144; right or occasion of making one's self busy, Indus-
trial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418,
419; sale, Wills v. National Mineral Co., 176 Okl. 193, 55
P.2d 449, 453; that which habitually busies or occupies or
engages the time, attention, labor, and effort of men as a
principal serious concern or interest or for livelihood or
profit, Curley v. New England Trust Co., 221 Mass. 384, 109
N.E. 171, 174, Massolini v. Driscoll, 114 Conn. 546, 159 A.
480, 482; trade, Connor v. City of University Park, Tex.Civ.
App., 142 S.W.2d 706, 715, Morgan v. Salt Lake City, 78
Utah 403, 3 P.2d 510, 513 ; transaction, Industrial Fibre Co.
v. State, 31 Ohio App. 347, 166 N.E. 418, 419; occasional,
single or isolated activities do not constitute business, Van-
dervort v. Industrial Commission of Wisconsin, 203 Wis.
362, 234 N.W. 492, 493; Goddard v. Chaffee, 2 Allen, Mass.,
395, 79 Am. Dec. 796. But see Industrial Commission v.
Hammond, 77 Colo. 414, 236 P. 1006, 1008.
Definition of "business" is not dependent on whether
enterprise is profitable or has prospects of being profitable.
Doggett v. Burnet, 62 App.D.C. 103, 65 F.2d 191, 193.
Labor, business, and work are not synonyms.
Business Affected with Public Interest
One so employed as to justify conclusion that it has been
devoted to public use, and its use thereby in effect granted
to public. Williams v. Standard Oil Co. of Louisiana,
Tenn., 278 U.S. 235, 49 S.Ct. 115, 116, 73 L.Ed. 287, 60
A.L.R. 596.
Business Agent
Agent having some general supervision over
general affairs. Rorick v. Stilwell, 101 Fla. 4,
133 So. 609, 615.
Business Compulsion
Species of duress. Marrazzo v. Orino, Wash.,
194 Wash. 364, 78 P.2d 181, 186.
Business Corporation
A corporation organized for the purpose of car-
rying on a business for profit. City of St. Louis
v. Smith, 325 Mo. 471, 30 S.W.2d 729, 731.
Business Course
A course such as is usually taught by business
or commercial schools and colleges. Union Nat.
Bank v. Kirby, 189 Ark. 369, 72 S.W.2d 229, 230.
Business Done in State
Business begun and completed or ended in state.
Clark v. Atlantic Pipe Line Co., Tex.Civ.App., 134
S.W.2d 322, 328.
Business Enterprise
Investment of capital, labor and management
in an undertaking for profit; one of the recog-
nized attributes is centralized management and
control. Helvering v. Jewel Mining Co., C.C.A.8,
126 F.2d 1011, 1015.
Business Gains
Gains from sale, exchange, or other disposition
of property used in business. Fackler v. Commis-
sioner of Internal Revenue, C.C.A.6, 133 F.2d 509,
512.
Business Hours
In general those hours during which persons
in the community generally keep their places open
for the transaction of business. Casalduc v. Diaz,
C.C.A.Puerto Rico, 117 F.2d 915, 916.
In respect to the time of presentment and demand of
bills and notes, business hours generally range through the
whole day down to the hours of rest in the evening, except
when the paper is payable at a bank or by a banker;
Cayuga County Bank v. Hunt, 2 Hill, N.Y., 635. See Lunt
v. Adams, 17 Me. 230.
An order allowing a stockholder to examine the books
of a corporation "during business hours" does not mean
that such examination be carried on throughout the entire
business day, nor in the nighttime. Breslauer v. S. Frank-
lin & Co., 205 Ill. App. 372, 374.
Business League
An association is a business league if persons
thereof have some common business interest. Un-
derwriters' Laboratories v. Commissioner of In-
ternal Revenue, C.C.A.7, 135 F.2d 371, 374.
Business Losses
Losses from sale, exchange, or other disposi-
tion of property used in trade or business. Fack-
ler v. Commissioner of Internal Revenue, C.C.A.6,
133 F.2d 509, 512.
Business Name
Trade-name, business name and commercial
name as synonymous. Plum v. Siekmann, 135
Neb. 101, 280 N.W. 264, 268.
Business of Peddling
Business of one relying on present solicitation
of chance patrons for purchases of uncertain
quantities and making concurring deliveries. Na-
tional Baking Co. v. Zabel, 227 Wis. 93, 277 N.W.
691, 693.
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BUSINESS
Business of Public Character
Business wherein person engaged expressly or
impliedly holds himself out as engaged in business
of supplying his product or service to public as a
class or to limited portion of public. Masgai v.
Public Service Commission of Pennsylvania, 124
Pa.Super. 370, 188 A. 599, 600.
Business of Same Nature
Business of like character. Rahoutis v. Unem-
ployment Compensation Commission, 171 Or. 93,
136 P.2d 426, 434.
Business of Similar Nature
Business of analogous nature. Bedford v. John-
son, 102 Colo. 203, 78 P.2d 373, 376.
Business of the Community
A business in which a husband is engaged is
prima facie the business of the community. Bird
v. Steele, 74 Wash. 68, 132 P. 724, 725.
Business Pertaining to His Occupation
Duty pertaining to his occupation as synonym.
Doherty v. American Employers' Ins. Co. of Bos-
ton, Mass., 112 N.J.Law, 52, 169 A. 652, 653.
Business Situs
A situs acquired for tax purposes by one who
has carried on a business in the state more or less
permanent in its nature. Endicott, Johnson & Co.
v. Multnomah County, 96 Or. 679, 190 P. 1109, 1111.
A situs arising when notes, mortgages, tax sale
certificates and the like are brought into the state
for something more than a temporary purpose,
and are devoted to some business use there and
thus become incorporated with the property of
the state for revenue purposes. Lockwood v.
Blodgett, 106 Conn. 525, 138 A. 520, 525. A situs
arising where possession and control of property
right has been localized in some independent bus-
iness or investment away from owner's domicile
so that its substantial use and value primarily
attach to and become an asset of the outside busi-
ness. State v. Atlantic Oil Producing Co., 174 Oki.
61, 49 P.2d 534, 538.
Business Trust
As distinguished from a joint-stock company, a
pure "business trust" is one in which the man-
agers are principals, and the shareholders are
cestuis que trust. Betts v. Hackathorn, 159 Ark.
621, 252 S.W. 602, 604, 31 A.L.R. 847. The essen-
tial attribute is that property is placed in the
hands of trustees who manage and deal with it
for use and benefit of beneficiaries. Morriss v.
Finkelstein, Mo.App., 127 S.W.2d 46, 49. A "Mas-
sachusetts trust" or "common law trust," In re
Conover's Estate, 295 Ill.App. 443, 14 N.E.2d 980,
985.
Business Visitor
One who is invited or permitted to enter or re-
main upon the premises of another for a purpose
directly or indirectly connected with the business
dealings between them, Kurre v. Graham Ship by
Truck Co., 136 Kan. 356, 15 P.2d 463, 465. One
who comes on land at occupant's instance for
purposes connected with purpose, business, or oth-
erwise, for which occupant uses land, Haefeli v.
Woodrich Engineering Co., 255 N.Y. 442, 175 N.E.
123, 125.
Farming Business
See Farming Business.
Private Business or Enterprise
One in which capital, time, attention, labor, and
intelligence have been invested for gain and profit
for private benefit, purposes and use. Green v.
Frazier, 44 N.D. 395, 176 N.W. 11, 17.
Public Business
An element is that the business by its nature
must be such that the public must use the same,
or the commodities bought and sold in such man-
ner as to affect the community at large as to sup-
ply, price, etc. Consumers' Light & Power Co. v.
Phipps, 120 Okl. 223, 251 P. 63, 64.
BUSONES COMITATUS. In old English law.
The barons of a county.
BUSSA. A term used in the old English law, to
designate a large and clumsily constructed ship.
BUT. Except, except that, on the contrary, or,
and also, yet, still. State v. Marsh, 108 Neb. 267,
187 N.W. 810, 812; Rickman v. Commonwealth,
195 Ky. 715, 243 S.W. 929.
BUTANE. Highly explosive and inflammable sub-
stance. Ohio Casualty Ins. Co. v. Callaway, D.C.
Okl., 45 F.Supp. 586, 588.
BUTCHER. One who slaughters animals or
dresses their flesh for market; a dealer in meat.
Broadway v. Cope, 208 N.C. 85, 179 S.E. 452;
Provo City v. Provo Meat & Packing Co., 49 Utah
528, 165 P. 477, 479, Ann.Cas.1918D, 530.
BUTLERAGE. A privilege formerly allowed to
the king's butler, to take a certain part of every
cask of wine imported by an alien; the part of
the cask thus taken.
Called also prisage; 2 Bulstr. 254. Anciently,
it might be taken also of wine imported by a sub-
ject. 1 Bla.Com. 315; Termes de la Ley; Cowell.
See, also, Botiler of the King.
BUTLER'S ORDINANCE. In English law. A law
for the heir to punish waste in the life of the an-
cestor.
"Though it be on record in the parliament book of
Edward I., yet it never was a statute, nor ever so received;
but only some constitution of the king's council, or lords
in parliament, which never obtained the strength or force
of an act of parliament." Hale, Hist. Eng. Law, p. 18.
BUTT. A measure of liquid capacity, equal to one
hundred and eight gallons; also a measure of
land.
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BY
BUTTALS. The bounding lines of land at the end;
abuttals, which see.
BUTTE. A hill. State v. Jefferson Island Salt
Mining Co., 183 La. 304, 163 So. 145.
BUTTED AND BOUNDED. A phrase sometimes
used in conveyancing, to introduce the boundaries
of lands. See Butts and Bounds.
BUTTER. A dairy product manufactured exclu-
sively from pure, unadulterated milk or cream, or
both, with or without salt or coloring matter.
Pardy v. Boomhower Grocery Co., 178 App.Div.
347, 164 N.Y.S. 775, 776; a product which should
contain not less than 80 per centum by weight of
milk fat. U. S. v. Centralia Dairy Co., D.C.Wash.,
60 F.2d 141, 142.
BUTTER FAT. The natural fat of milk. Wise-
man v. Affolter, 192 Ark. 509, 92 S.W.2d 388, 389.
BUTTS. In old English law. Short pieces of land
left unplowed at the ends of fields, where the plow
was turned about (otherwise called "headlands")
as sidelings were similarly unplowed pieces on
the sides. Burrill; Cowell. Also a place where
bowmen meet to shoot at a mark.
BUTTS AND BOUNDS. A phrase used in con-
veyancing, to describe the end lines or circum-
scribing lines of a certain piece of land. The
phrase "metes and bounds" has the same meaning.
The angles or points where these lines change
their direction. Cowell; Spelman, Gloss. See
Abuttals.
BUTTY. A local term in the north of England, for
the associate or deputy of another; also of things
used in common.
BUY. To acquire the ownership of property by
giving an accepted price or consideration therefor;
or by agreeing to do so; to acquire by the pay-
ment of a price or value; to purchase. Webster.
To obtain something for a price, usually money.
In re Troy, 43 R.I. 279, 111 A. 723, 724. As applied
to prohibition law, means to possess. Slaughter
v. State, 23 Ala.App. 390, 128 So. 129.
BUY IN. To purchase, at public sale, property
which is one's own or which one has caused or
procured to be sold.
BUYER. One who buys; a purchaser, particularly
of chattels.
BUYER 60 CONTRACT. A contract wherein pur-
chaser not wishing to pay for stock purchased
outright buys it at a price in ewcess of the market
and is allowed 60 days' time to pay for stock.
Herrlein v. Tocchini, 128 Cal.App. 612, 18 P.2d 73,
75.
BUYING LONG. Purchase of stocks now with
the expectation of selling them for a profit in the
future. Henderson v. Usher, 125 Fla. 709, 170 So.
846, 851.
BUYING TITLES. The purchase of the rights or
claims to real estate of a person who is not in
possession of the land or is disseised. Void, and
an offense, at common law and by 32 Hen. VIII, c.
9. This rule has been generally adopted in the
United States, and is affirmed by statute in some
states; 3 Washb.R.P. *596. Hinman v. Hinman, 4
Conn. 575; Helms v. May, 29 Ga. 124; Wash v. Mc-
Brayer, 1 Dana, Ky., 566; Bush v. Cooper, 26 Miss.
599, 59 Am.Dec. 270. But in other states, such a
purchase is valid. Fetrow v. Merriwether, 53 Ill.
279; Hall's Lessee v. Ashby, 9 Ohio, 96, 34 Am.
Dec. 424.
See, also, Bracery.
BY. Before a certain time, Rankin v. Woodworth,
3 Pen. & W., Pa., 48. Beside. Close to. In. In
close proximity. In consequence of. Not later
than a certain time, Fanta v. Maddex, 80 Cal.App.
513, 252 P. 630, 633; Scheuer & Tiego v. Benedict,
173 Wis. 241, 181 N.W. 129, 12 A.L.R. 1166. On or
before a certain time, J. C. Engelman Land Co. v.
La Blanco Agr. Co., Tex.Civ.App., 220 S.W. 653,
655. Through the means, act, agency or instru-
mentality of, Carroll v. Industrial Commission of
Colorado, 69 Colo. 473, 195 P. 1097, 19 A.L.R. 107;
Stevenson v. Lee Moor Contracting Co., 45 N.M.
354, 115 P.2d 342, 349. To. Under. With. The
word may be used as exclusive, use preceding
signature as indicating signature officially, and not
personally. Pennsylvania Co. for Insurances on
Lives and Granting Annuities v. Wallace, 346 Pa.
532, 31 A.2d 71, 77.
BY AN ACQUITTANCE FOR THE LAST PAY-
MENT ALL OTHER ARREARAGES ARE DIS-
CHARGED. Noy, 40.
BY-BIDDER. One employed by the seller or his
agent to bid on property with no purpose to be-
come a purchaser, so that bidding thereon may be
stimulated in others who are bidding in good faith.
Osborn v. Apperson Lodge, Free and Accepted
Masons, No. 195, of Louisa, Ky., 213 Ky. 533, 281
S.W. 500, 502, 46 A.L.R. 117.
BY-BIDDING. See Bid.
BY BILL, BY BILL WITHOUT WRIT. In prac-
tice. Terms anciently used to designate actions
commenced by original bill, as distinguished from
those commenced by original writ, and applied in
modern practice to suits commenced by capias ad
respondendum. 1 Arch.Pr. pp. 2, 337; 3 Bla.
Comm. 285, 286. See Harkness v. Harkness, 5
Hill, N.Y., 213. The usual course of commencing
an action in the King's Bench was by a bill of
Middlesex. In an action commenced by bill it is
not necessary to notice the form or nature of the
action. 1 Chit.Pl. 283.
BY COLOR OF OFFICE. Acts done "by color of
office" are where they are of such a nature that
office gives no authority to do them. State v.
National Surety Co., 162 Tenn. 547, 39 S.W.2d 581,
583.
BY ESTIMATION. In conveyancing. A term
used to indicate that the quantity of land as stated
is estimated only, not exactly measured; it has the
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BY
the same meaning and effect as the phrase "more
or less." Hays v. Hays, 126 Ind. 92, 25 N.E. 600, 11
L.R.A. 376. It is said that the meaning of these
words has never been precisely ascertained by
judicial decision. See Sugden, Vend. 231; Noble v.
Googins, 99 Mass. 234.
BY GOD AND MY COUNTRY. In old English
criminal practice. The established formula of
reply by a prisoner, when arraigned at the bar, to
the question, "Culprit, how wilt thou be tried?"
BY LAW. By statutory law, Board of Education
of Union Free School Dist. No. Six of Town of
Greenburgh v. Town of Greenburgh, 277 N.Y. 193,
13 N.E.2d 768, 770. By state-wide legislation, and
not ordinance, U. S. Fidelity & Guaranty Co. v.
Guenther, C.C.A.Ohio, 31 F.2d 919, 920.
BY-LAW MEN. In English law. The chief men
of a town, representing the inhabitants. In an
ancient deed, certain parties are described as
"yeomen and by-law men." 6 Q.B. 60. They ap-
pear to have been men appointed for some pur-
pose of limited authority by the other inhabitants,
under by-laws of the corporation appointing.
BY-LAWS. Regulations, ordinances, rules or laws
adopted by an association or corporation or the
like for its government. The word has also been
used to designate the local laws or municipal
statutes of a city or town. See Kilgour v. Gratto,
224 Mass. 78, 112 N.E. 489, 490. But of late the
tendency is to employ the word "ordinance" ex-
clusively for this class of enactments, reserving
"by-law" for the rules adopted by private corpora.
tions.
In England the term by-law includes any order,
rule or regulation made by any local authority or
statutory corporation subordinate to Parliament;
1 Odgers, C.L. 91.
A resolution is not necessarily a by-law though a by-law
may be in the form of a resolution. Peck v. Elliott, C.C.A.
Tenn., 24 C.C.A. 425, 79 Fed. 10, 38 L.R.A. 616; Bagley v.
Oil Co., 201 Pa. 78, 50 A. 760, 56 L.R.A. 184. Distinction
between a -by-law and a regulation, if any, discussed,
Compton v. Van Volkenburgh, 34 N.J.Law, 135.
BY OPERATION OF LAW. Effected by some
positive legal rule or amendment. Terminals &
Transportation Corporation v. State, 169 Misc.
703, 8 N.Y.S.2d 282, 284.
BY-PASSING. As used in a contract for the con-
struction of a subway, requiring the by-passing of
all gas pipes whose service cannot be temporarily
dispensed with, "by-passing" means the temporary
cutting out of the gas mains under the street and
laying of substituted temporary overhead gas
pipes until all danger in using the original pipes
is passed. Degnon Contracting Co. v. City of New
York, 202 App.Div. 390, 196 N.Y.S. 63, 64.
BY REASON OF. Because of. Freeman v. Ben-
nett, Tex.Civ.App., 195 S.W. 238, 241. By means,
acts, or instrumentality of. State v. Kaufman, 50
S.D. 645, 211 N.W. 691, 692.
BY THE BY (also Bye). Incidentally; without
new process. A term used in former English
practice to denote the method of filing a declara-
tion against a defendant who was already in the
custody of the court at the suit of a different plain-
tiff or of the same plaintiff in another cause. It
is no longer allowed; Archbold, New Pr. 293.
itY VIRTUE OF. By force of, by authority of, by
reason of. Phillips v. Houston Nat. Bank, Hous-
ton, Tex., C.C.A.Tex., 108 F.2d 934, 936. Because
of, through, or in pursuance of. State ex rel. and
to Use of Jasper County v. Gass, 317 Mo. 744,
296 S.W. 431, 432. Money received by an officer by
virtue of his office is money which that officer
received under the law of his office, and not in
violation thereof. Hollingsworth v. State, 73 Fla.
44, 75 So. 612, 614.
BYE-BIL-WUFFA. In Hindu law. A deed of
mortgage or conditional sale.
BYRLAWS. See Burlaws.
BYROAD. The statute law of New Jersey recog-
nizes three different kinds of roads: A public
road, a private road, and a byroad. A byroad is
a road used by the inhabitants, and recognized by
statute, but not laid out. Such roads are often
called "driftways." They are roads of necessity
in newly-settled countries. Van Blarcom v. Frike,
29 N.J.Law, 516. See, also, Stevens v. Allen, 29
N.Y.Law, 68. An obscure or neighborhood road
in its earlier existence, not used to any great ex-
tent by the public, yet so far a public road that
the public have of right free access to it at all
times. Wood v. Hurd, 34 N.J.Law, 89.
BYSTANDER. One who stands near; a chance
looker-on; hence one who has no concern with the
business being transacted. Baker v. State, 79 Tex.
Cr.R. 510, 187 S.W. 949, 952; One present but not
taking part, looker-on, spectator, beholder, ob-
server. Music v. De Long, 209 Iowa, 1068, 229 N.
W. 673, 676.
Under statutes relating to summoning of bystanders to
complete jury panel, "bystanders" may be held to mean
qualified talesmen summoned by sheriff from county at
large. Commonwealth v. Sacco, 255 Mass. 369, 151 N.E.
839, 847. The term means qualified electors, not neces-
sarily persons present in court. Bennett v. State, 161 Ark.
496, 257 S. W. 372, 373.
Under statutes authorizing "bystanders" to certify bill
of exceptions, parties to the suit and their attorneys,
Walker v. State, 88 Tex.Cr.R. 389, 227 S. W. 308, 312 ; and
also witnesses in the case, McConnell v. McCord, 170 Ark.
839, 281 S.W. 384, as well as persons not present at the
trial, are not bystanders, Buck v. St. Louis Union Trust
Co., 267 Mo. 644, 185 S.W. 208, 211. Though jurors are
not "bystanders" in the ordinary meaning of that term,
they can sign a bystanders' bill of exceptions to acts and
comments by the court and the argument of attorneys
thereon. Alamo Iron Works v. Prado, Tex.Civ.App., 220
S.W. 282, 29L
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CABALLARIA
C
C. The third letter of the alphabet.
The letter is used as an abbreviation of many
words of which it is the initial letter, such as
cases, civil, circuit; as a numeral, in like manner
with that use of A and B; and to designate the
third of a series of propositions, sections, etc.
It was used among the Romans to denote condemnation,
being the initial letter of condemno, I condemn. Tayl.
Civil Law, 192.
The initial letter of the word "Codex," used by some
writers in citing the Code of Justinian.  Tayl. Civil
Law, 24.
C.—CT.—CTS. These abbreviations stand for
"cent" or "cents," and any one of them, placed at
the top or head of a column of figures, sufficiently
indicates the denomination of the figures below.
Jackson v. Cummings, 15 Ill. 453; Linck v. Litch-
field, 141 Ill. 469, 31 N.E. 123.
C. A. B. Civil Aeronautics Board.
C. A. F. Under "c. a. f." provision in sale con-
tract, freight figures substantially only as a part of
the purchase price, not as a reservation of title,
and the situation is similar to a "c. f." contract.
Madeirense Do Brasil S/A v. Stulman-Emrick Lum-
ber Co., C.C.A.N.Y., 147 F.2d 399, 402; cost and
freight allowed to point of destination, being the
equivalent of shipment F. 0. B. from point of
origin. Farris & Co. v. William Schluderberg, T.
J. Kurdle Co., 142 Fla. 765, 196 So. 184.
C. A. V. An abbreviation for curia advisari vult,
the court will be advised, will consider, will delib-
erate.
C. B. In reports and legal documents, an abbrevia-
tion for common bench. Also an abbreviation for
chief baron.
C. C. Various terms or phrases may be denoted
by this abbreviation; such as circuit court, (or
city or county court;) criminal cases, (or crown
or civil or chancery cases;) civil code; chief com-
missioner; and cepi corpus, I have taken his body.
C. C.; B. B. I have taken his body; bail bond
entered. See Capias ad Respondendum.
C. C. P. An abbreviation for Code of Civil Proce-
dure; also for court of common pleas.
C. C. & C. I have taken his body and he is held.
C. F. & I. Also written "c. f. i." Letters used in
contracts for cost, freight and insurance, indicat-
ing that the price fixed covers not only cost but
freight and insurance to be paid by the seller;
Benj. Sales, § 887; L.R. 8 Ex. 179; 7 H. & N. 574;
Mee v. McNider, 109 N.Y. 500, 502, 17 N.E. 424.
C. I. A. Central Intelligence Agency.
C. I. F. Also written "c. 1. f." These letters in
contracts of sale indicate, as does the expression
"c. f. i." or "C. F. & I." (q. v.), that the price
fixed covers the cost of goods, insurance, and
freight. National Wholesale Grocery Co. v. Mann,
251 Mass. 238, 146 N.E. 791, 793; A. Klipstein &
Co. v. Dilsizian, C.C.A.N.Y., 273 F. 473, 475; Colum-
bus Bagging & Tie Co. v. Steel Union Co., 43 Ga.
App. 126, 158 S.E. 459, 460.
C. J. An abbreviation for chief justice; also for
circuit judge.
C. L. An abbreviation for civil law.
C. L. P. Common law procedure, in reference to
the English acts so entitled.
C. 0. D. "Collect on delivery." These letters
import the carrier's liability to return to the con-
signor either the goods or the charges. U. S. Exp.
Co. v. Keefer, 59 Ind. 267; Express Co. v. Wolf, 79
Ill. 434; Danciger v. American Express Co., 192
Mo.App. 172, 179 S.W. 797, 798. The carrier ac-
cepts a check instead of cash at its own peril.
Joseph Mogul, Inc., v. C. Lewis Lavine, Inc., 220
App.Div. 287, 221 N.Y.S. 391, 393.
C. P. An abbreviation for common pleas.
C. P. A. Certified Public Accountant.
C. R. An abbreviation for curia regis; also for
chancery reports.
C. S. C. Civil Service Commission.
C. T. A. An abbreviation for cum testamento
annexo, in describing a species of administration.
C. & F. The term "c. & f." means that the sale
price includes in a lump sum "cost" and "freight"
to named destination, and either requires seller
to prepay freight or permits buyer, after having
paid actual charges, to deduct them from the price.
Madeirense Do Brasil S/A v. Stulman-Emrick
Lumber Co., C.C.A.N.Y., 147 F.2d 399, 402.
CA. SA. An abbreviation of capias ad satisfacien-
dum, q. v.
CABAL. A small association for the purpose of
intrigue; an intrigue. This name was given to
that ministry in the reign of Charles IL formed
by Clifford, Ashley, Buckingham, Arlington, and
Lauderdale, who concerted a scheme for the resto-
ration of popery. The initials of these five names
form the word "cabal;" hence the appellation.
Hume, Hist.Eng. ix. 69.
CABALIST. In French commercial law. A factor
or broker.
CABALLARIA. Pertaining to a horse. It was a
feudal tenure of lands, the tenant furnishing a
horseman suitably equipped in time of war, or
when the lord had occasion for his service.
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CABALLERIA
CABALLERIA. In Spanish law. An allotment
of land acquired by conquest, to a horse soldier.
A quantity of land, varying in extent in different
provinces. In those parts of the United States
which formerly belonged to Spain, it is a lot of
one hundred feet front, two hundred feet depth,
and equivalent to five peonias. 2 White, New
Recop. 49; Strother v. Lucas, 12 Pet. 444, 9 L.Ed.
1137, note; Escriche, Dicc. Raz.
CABALLERO. In Spanish law. A knight. So
called on account of its being more honorable to
go on horseback (ec caballo) than on any other
beast.
CABANA. Cabin or small house. Godson v.
Town of Surfside, 150 Fla. 614, 8 So.2d 497, 500.
CABARET. A room where musical entertainment
is permitted in connection with restaurant busi-
ness. People v. Liquorman, 171 Misc. 535, 13 N.
Y.S.2d 410, 411.
CABINET. The advisory board or council of a
king or other chief executive. The select or secret
council of a prince or executive government; so
called from the apartment in which it was orig-
inally held. Webster
CABINET COUNCIL. In English law. A private
and confidential assembly of the most considerable
ministers of state, to concert measures for the ad-
ministration of public affairs; first established by
Charles I. Wharton.
CABLE. A large and strong rope or chain. An
assembly of wires held together in some way.
Triangle Conduit & Cable Co. v. National Electric
Products Corporation, D.C.Del., 56 F.Supp. 979,
981.
The term "cable railroad" in a city charter has been
held to imply street railroads. City of Denver v. Mercan-
tile Trust Co. of New York, C.C.A.Colo., 201 F. 790, 802.
CABLE TRANSFER. A credit for a sum of mon-
ey payable at the place indicated. Oshinsky v.
Taylor, Sup., 172 N.Y.S. 231, 232.
CABLISH. Brush-wood, or more properly wind-
fall-wood.
CABOOSE CAR. A car attached to the rear of a
freight train, fitted up for the accommodation of
the conductor, brakeman, and chance passengers.
Mammoth Cave R. Co. v. Commonwealth, 176 Ky.
747, 197 S.W. 406, 407.
CABOTAGE. A nautical term from the Spanish,
denoting strictly navigation from cape to cape
along the coast without going out into the open
sea. In International Law, cabotage is identified
with coasting-trade so that it means navigating
and trading along the coast between the ports
thereof.
CACHEPOLUS, or CACHERELLAS. An inferior
bailiff, or catchpoll. Jacob.
CACHET, LETTRES DE. Letters issued and
signed by the kings of France, and countersigned
by a secretary of state, authorizing the imprison-
ment of a person. Abolished during the revolu-
tion of 1789. See Lettres de Cachet.
CACICAZGOS. In Spanish-American law. Prop-
erty entailed on the caciques, or heads of Indian
villages, and their descendants. Schm.Civil Law,
309.
CADASTRE. Sp. An official statement of the
quantity and value of real property in any dis-
trict, made for the purpose of justly apportioning
the taxes payable on such property. Strother, v.
Lucas, 12 Pet. 410, 428, note, 9 L.Ed. 1137.
CADASTU. In French law. An official statement
of the quantity and value of realty made for pur-
poses of taxation; same as cadastre, (q. v.).
CADAVER. A dead human body; a corpse.
Cadaver nullius in bonis, no one can have a right
of property in a corpse. 3 Co.Inst. 110, 2 Bl.
Comm. 429; Griffith v. Railroad Co., 23 S.C. 32,
55 Am.Rep. 1.
CADAVEROUS. Pale, wan or ghastly appear-
ance. Commonwealth v. Caldutte, 136 Pa.Super.
52, 7 A.2d 121, 123.
CADERE. Lat. To end; cease; fail; as in
phrases such as cadit actio, (or breve,) the action
(or writ) fails; cadit assisa, the assise abates;
cadit qucestio, the discussion ends, there is no room
for further argument; cadere ab actione (literal-
ly, to fall from an action), to fail in an action;
cadere in partem, to become subject to a division.
To be changed; to become; to be turned into.
Cadit assisa in juratum, the assise is changed
into a jury. Calvinus, Lex.
CADET. Students in the military academy at
West Point are styled "cadets;" students in the
naval academy at Annapolis, "cadet midshipmen."
In England. A younger brother; the younger
son of a gentleman; particularly applied to a vol-
unteer in the army, waiting for some post. Jacob.
CAD!. A Turkish civil magistrate.
CADIT. Lat. It falls, abates, fails, ends, ceases.
See Cadere.
CADUCA. In the civil law. Property of an in-
heritable quality; property such as descends to
an heir. Also the lapse of a testamentary disposi-
tion or legacy. Also an escheat; escheated prop-
erty.
CADUCARY. Relating to or of the nature of
escheat, forfeiture, or confiscation. 2 Bl.Comm.
245.
CIEDUA. In the civil and old common law. Kept
for cutting; intended or used to be cut. A term
applied to wood.
CAESAR. In the Roman law. A cognomen in the
Gens Julia, which was assumed by the successors
of Julius. Tayl. Civil Law, 31.
CAESAREAN (also spelled Caesarian) OPERA-
TION. A surgical operation whereby the foetus is
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CALENDAR
taken from the mother, with a view to save the
lives of both, or either of them. Wharton.
CZETERUS. Lat. Other; another; the rest.
CJETERIS PARIBUS. Other things being equal.
CAETERIS TACENTIBUS. The others being si-
lent; the other judges expressing no opinion.
Comb. 186.
CIETERORUM. When a limited administration
has been granted, and all the property cannot be
administered under it, administration cceterorum
(as to the residue) may be granted.
CAFE. A place where meals and drinks are
served to the public generally or to selected por-
tions of the public. In re Bowers, D.C.Cal., 33 F.
Supp. 965, 966.
The word as ordinarily and popularly used means a res-
taurant or house for refreshments. Proprietors' Realty Co.
v. Wohltmann, 95 N.J.Law, 303, 112 A. 410. The terms
"restaurant" and "café" are substantially synonymous.
State v. Shoaf, 179 N.C. 744, 102 S.E. 705, 9 A.L.R. 426.
CARTER. In old French law. A list of grievances
prepared for deputies in the states-general. A peti-
tion for the redress of grievances enumerated.
CAHOOTS. Partnership, teaming up, or combin-
ing efforts. City of Abilene v. Luhn, Tex.Civ.App.,
65 S.W.2d 370, 371.
CAIN, or CANE. In Scotch law. Rent paid In
kind, as in poultry, eggs, etc.; hence, any tax,
tribute, or duty. Cent. Dict.
CAIRNS' ACT. An English statute for enabling
the court of chancery to award damages. 21 & 22
Vict. c. 27. Repealed as having been superseded
by the Judicature Act of 1873.
Lat. Dict. Also, an ancient Greek measure of
length of 10 feet. Cent. Dict.
CALCETUM, CALCEA. A causeway, or common
hard-way, maintained and repaired with stones
and rubbish.
CALCULATE. To compute mathematically; in its
broader significance, to intend, to purpose, or to
design. State v. Smith, 57 Mont. 349, 188 P. 644,
648.
CALCULATED. An act may produce a certain
effect, whether intended or not; fitted, adapted,
or suited. Polly v. People, 107 Colo. 6, 108 P.2d
220, 223. Likely or intended. State v. Wyman, 56
Mont. 600, 186 P. 1, 5; Pouchan v. Godeau, 167
Cal. 692, 140 P. 952, 953.
CALE. In old French law. A punishment of
sailors, resembling the modern "keelhauling."
CALEFAGIUM. In old law. A right to take fuel
yearly. Cowell; Blount.
CALENDAR. The established order of the divi-
sion of time into years, months, weeks, and days;
or a systematized enumeration of such arrange-
ment; an almanac. Rives v. Guthrie, 46 N.C. 86;
Sculley v. Red Lodge-Rosebud Irr. Dist., 83 Mont.
282, 272 P. 543, 552.
Calentar Days
A calendar day contains 24 hours but "calendar
days" may be synonymous with "working days."
Sherwood v. American Sugar Refining Co., C.C.
A.N.Y., 8 F.2d 586, 588. The time from midnight
to midnight, Lanni v. Grimes, 173 Misc. 614, 18 N.
Y.S.2d 322, 327. So many days reckoned accord-
ing to the course of the calendar.
CAISSON DISEASE. A dizziness accompanied
with partial paralysis of the limbs, caused by too
rapid reduction of air pressure to which men have
been accustomed. Williams v. Missouri Bridge &
Iron Co., 212 Mich. 150, 180 N.W. 357, 358. A con-
dition caused by excessive air pressure wherein
gas emboli or bubbles in the tissues of the body
may induce severe pain and paralysis, Cannella v.
Gulf Refining Co. of Louisiana, La.App., 154 So.
406, 413.
CALABOOSE. A term used vulgarly, and occa-
sionally in judicial proceedings and law reports, to
designate a jail or prison, particularly a town or
city jail or lock-up. Supposed to be a corruption
of the Spanish calabozo, a dungeon. See Gilham
v. Wells, 64 Ga. 194.
CALAMITY. A state of deep distress or misfor-
tune, produced by some adverse circumstance or
event; misery; any great misfortune or cause of
loss or misery; usually an event or disaster that
produces extensive evil. City of Muskegon Heights
v. Danigelis, 253 Mich. 260, 235 N.W. 83, 84, 73
A.L.R. 696.
CALAMUS. Lat. A reed; cane; hence, a reed
pen; reed-pipe; arrow; small rod, etc. Harper,
Calendar Month
One of the months of the year as enumerated in
the calendar. Daley v. Anderson, 7 Wyo. 1, 48 P.
840, 75 Am.St.Rep. 870.
Calendar Week
A block of seven days registered on calendar
beginning with Sunday and ending with Saturday.
Sonoma County v. Sanborn, 1 Cal.App.2d 26, 36
P.2d 419, 422. Term may consist of any seven
days of given month. Sonoma County v. Sanborn,
1 Cal.App.2d 26, 36 P.2d 419, 422.
Calendar Year
The period from January 1 to December 31, in-
clusive. Byrne v. Bearden, 27 Ga.App. 149, 107 S.
E. 782, 783; Application of Title Guarantee &
Trust Co., 183 Misc. 490, 48 N.Y.S. 374, 375. Ordi-
narily calendar year means 365 days except leap
year, and is composed of 12 months varying in
length. Shaffner v. Lipinsky, 194 N.C. 1, 138 S.E.
418, 419; United States, for Use of Strona v.
Bussey, D.C.Cal., 51 F.Supp. 996, 999.
"Calendar year preceding election" means year beginning
January 1 and ending December 31. People v. Milan, 89
Colo. 556, 5 P.2d 249, 253.
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CALENDAR
Calendar of Causes
A list of the causes instituted in the particular
court, and now ready for trial, drawn up before
beginning of the term. It is sometimes called
the "trial list," or "docket."'
Calendar of Prisoners
In English practice. A list kept by the sheriffs
containing the names of all the prisoners in their
custody, with the several judgments against each
in the margin. Staundef.P.C. 182; 4 Bl.Comm.
403.
Special Calendar
A calendar or list of causes, containing those
set down specially for hearing, trial, or argument.
CALENDS. Among the Romans the first day of
every month, being spoken of by itself, or the
very day of the new moon, which usually happen
together. And if pridie, the day before, he added
to it, then it is the last day of the foregoing month,
as pridie calend. Septemb. is the last day of
August. If any number be placed with it, it
signifies that day in the former month which
comes so much before the month named, as
the tenth calends of October is the 20th day of
September; for if one reckons backwards, be-
ginning at October, that 20th day of September
makes the 10th day before October. In March,
May, July, and October, the calends begin at the
sixteenth day, but in other months at the four-
teenth; which calends must ever bear the name
of the month following, and be numbered back-
wards from the first day of the said following
months. Jacob. See Rives v. Guthrie, 46 N.C. 87.
CALENDS, GREEK. A metaphorical expression
for a time never likely to arrive, inasmuch as the
Greeks had no calends.
CALF. As used in an exemption statute, should
be construed to include an animal sucking a cow
that is being milked, even though the animal be
a yearling. Kiggins v. Henne & Meyer Co., Tex.
Civ.App., 199 S.W. 494, 496.
CALICHE ROCK. A substance containing cal-
cium carbonate like that found in ordinary lime-
stone. Board of Com'rs of Roosevelt County v.
Good, 44 N.M. 495, 105 P.2d 470, 472.
CALL, n.
Contract Language
As used in contract, means demand for pay-
ment of, especially by formal notice. Keyes v.
Kimmel, 9 N.J.Misc.R. 604, 155 A. 19, 20.
Conveyancing
A visible natural object or landmark designated
in a patent, entry, grant, or other conveyance of
lands, as a limit or boundary to the land described,
with which the points of surveying must corres-
pond. Also the courses and distances designated.
King v. Watkins, C.C.Va., 98 Fed. 922. See, also,
Kentucky Union Co. v. Shepherd, 192 Ky. 447, 234
S.W. 10, 13.
Corporation Law
A demand by directors upon subscribers for
shares for payment of a portion or installment;
in this sense, it is capable of three meanings: (1)
The resolution of the directors to levy the assess-
ment; (2) its notification to the persons liable to
pay; (3) the time when it becomes payable. Rail-
way Co. v. Mitchell, 4 Exch. 543; Hatch v. Dana,
Iii., 101 U.S. 205, 25 L.Ed. 885; Stewart v. Pub. Co.,
1 Wash.St. 521, 20 P. 605.
Although the terms "call" and "assessment" are often
used synonymously, the latter term applies with peculiar
aptness to contributions above the par value of stock or
the subscription liability of the stockholders. Porter v.
Northern Fire & Marine Ins. Co., 36 N.D. 199, 161 N.W.
1012, 1014. See Assessment.
Dealings in Futures
Deposit of more margin. Fenner v. Tucker, 213
N.C. 419, 196 S.E. 357, 359.
Dealings in Securities or Grain
Option or right to demand a certain amount of
securities or grain at a fixed price at or within
certain time agreed on. Colston v. Burnet, 61 App.
D.C. 192, 59 F.2d 867, 868; Dillon, Read & Co. v.
Hoey, D.C.N.Y., 45 F.Supp. 475, 477.
English Law
The election of students to the degree of bar-
rister at law, hence the ceremony or epoch of elec-
tion, and the number of persons elected.
Mutual Act or Benefit Association Certificate
Official declaration that payment is required or
demand for payment. Pasley v. Brady Mut. Life
Ass'n, Tex.Civ.App., 2 S.W.2d 278, 279.
CALL, v. To summon or demand by name; to
demand the presence and participation of a num-
ber of persons by calling aloud their names, either
in a pre-arranged and systematic order or in a
succession determined by chance.
Terms "called" and "sold" as equivalent. In re Gyll-
strom's Will, 15 N.Y.S.2d 801, 808, 172 Misc. 655.
Call of the House
A call of the names of members of a legislative
body in pursuance of a resolution requiring at-
tendance of members.
Calling a Summons
In Scotch practice. See this described in Bell,
Dict.
Calling an Election
Commonly construed as including, or as being
synonymous with, the giving of notice of the elec-
tion. State v. Hall, 73 Or. 231, 144 P. 475, 478;
People v. Gough, 260 Ill. 542, 103 N.E. 685, 686.
Calling the Docket
The public calling of the docket or list of causes
at commencement of term of court for setting a
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CALVO
time for trial or entering orders of continuance,
default, nonsuit, etc. Blanchard v. Ferdinand, 132
Mass. 391.
Calling the Jury
Successively drawing out of a box the names of
the jurors on the panels annexed to the nisi prius
record, and calling them over in the order in
which they are so drawn.
Calling the Plaintiff
A formal method of causing a nonsuit to be en-
tered. When a plaintiff or his counsel, seeing that
sufficient evidence has not been given to maintain
the issue, withdraws, the crier is ordered to call
or demand the plaintiff, and if neither he, nor any
person for him appear, he is nonsuited. The
phrase "let the plaintiff be called" is to be ex-
plained by reference to this practice. See 3 Bla.
Comm. 376; 2 C. & P. 403; Porter v. Perkins, 5
Mass. 236, 4 Am.Dec. 52.
Calling to Testify
Under certain statutes, when adversary takes
the witness' deposition, Allen v. Pollard, 109 Tex.
536, 212 S.W. 468; Clayton v. Ogden State Bank,
82 Utah 564, 26 P.2d 545, 548; or when he files
interrogatories to the witness stating that his
deposition will be taken in answer thereto, Wyatt
v. Chambers, Tex.Civ.App., 182 S.W. 16, 18.
Calling to the Bar
In English practice. Conferring the dignity or
degree of barrister at law upon a member of one
of the inns of court. Holthouse. "Calls to the
bench and bar are to be made by the most ancient,
being a reader, who is present at supper on call
night." 1 Black Books of Lincoln's Inn. 339.
Calling Upon a Prisoner
When a prisoner has been found guilty on an
indictment, the clerk of the court addresses him
and calls upon him to say why judgment should
not be passed upon him.
CALL PATENT. One whose corners are all
stakes, or all but one, or whose lines were not run
out and marked at time. Combs v. Combs, 238
Ky. 362, 38 S.W.2d 243, 244.
CALLABLE. Option to pay before maturity on
call. In re Opinions of the Justices, 231 Ala. 152,
164 So. 572, 578.
CALLABLE BONDS. Bonds which may be called
for payment before their maturity. Fales v. Mult-
nomah County, 119 Or. 127, 248 P. 151, 152.
CALLED UPON TO PAY. Compelled or required
to pay. Taylor v. Coon, 79 Wis. 76, 48 N.W. 123,
128.
CALLERS. Persons employed by a motor carrier
to unload truck or trailer bodies and advise check-
er of nature of items of freight unloaded. Cream
v. M. Moran Transp. Lines, D.C.N.Y., 57 F.Supp.
212, 216.
Black's Law Dictionary Revised 4th Ed.-17
CALLING. A business, occupation, or trade. Gray
v. Board of County Com'rs of Sedgwick County,
101 Kan. 195, 165 P. 867, 868, L.R.A.1918F, 182.
One's usual occupation, vocation, or business.
Crook v. Commonwealth, 147 Va. 593, 136 S.E. 565,
567, 50 A.L.R. 1043. A profession, Ex parte
Galusha, 184 Cal. 697, 195 P. 406, 407; C. D. Sham-
burger Lumber Co. v. Delavan, Tex.Civ.App., 106
S.W.2d 351, 355, 356.
CALPES. In Scotch law. A gift to the head of a
clan, as an acknowledgment for protection and
maintenance.
CALUMNIA.
In the civil law calumny, malice, or ill design;
a false accusation; a malicious prosecution. Lan-
ning v. Christy, 30 Ohio St. 115, 27 Am.Rep. 431.
In the old common law. A claim, demand,
challenge to jurors.
CALUMNIZE JURAMENTUM. In the old canon
law. An oath similar to the calumnice jusjuran-
dum, (q. v.).
CALUMNIZE JUSJURAND1UM. The oath of
(against) calumny. An oath imposed upon the
parties to a suit that they did not sue or defend
with the intention of calumniating, (calumniandi
animo,)  e., with a malicious design, but from a
firm belief that they had a good cause. Inst. 4,
16. The object was to prevent vexatious and un-
necessary suits. It was especially used in divorce
cases, though of little practical utility; Bish.
Marr. & Div. § 353; 2 Bish.Marr.Div. & Sep. §
264. A somewhat similar provision is to be found
in the requirement made in some states that the
defendant shall file an affidavit of merits.
CALUMNIATOR. In the civil law. One who ac-
cused another of a crime without cause; one who
brought a false accusation. Cod. 9, 46.
CALUMNY. Defamation; slander; false accusa-
tion of a crime or offense. See Calumnia.
CALVIN'S CASE. Calvin v. Smith, 7 Rep. 1; 2
S.T. 559, decided in 1608, in which it was held that
persons born in Scotland after the accession of
James I to the crown of England in 1603 were
not aliens but were capable of inheriting land in
England. Wharton.
CALVO DOCTRINE. The doctrine stated by the
Argentine jurist, Carlos Calvo, that a government
is not bound to indemnify aliens for losses or in-
juries sustained by them in consequence of domes-
tic disturbances or civil war, where the state is
not at fault, and that therefore foreign states are
not justified in intervening, by force or otherwise,
to secure the settlement of claims of their citizens
on account of such losses or injuries. Such inter-
vention, Calvo says, is not in accordance with the
practice of European States towards one another,
and is contrary to the principle of state sovereign-
ty. 3 Calvo §§ 1280, 1297. The Calvo Doctrine is
to be distinguished from the Drago Doctrine (q.
v.).
See 18 Green Bag 377.
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CALYPSO
CALYPSO SONG. A song distinguished by a
certain form, rhythm, and narrative style, ap-
parently indigenous to the Island of Trinidad.
Baron v. Leo Feist, Inc., D.C.N.Y., 78 F.Supp. 686,
687.
CAMARA. In Spanish law. A treasury. Las
Partidas, pt. 6, tit. 3, 1, 2.
The exchequer. White, New Recop. b. 3, tit.
8, c. 1.
CAMBELLANUS, or CAMBELLARIUS. A cham-
berlain. Spelman.
CAMBER. Ship's camber is convex arc of vessel's
deck from side to side. The Indien, C.C.A.Cal., 71
F.2d 752, 757.
CAMBIALE JUS. The law of exchange.
CAMBIATOR. In old English law. An exchanger.
Cambiatores monetcs, exchangers of money; mon-
ey-changers.
CAMBIO. In Spanish law. Exchange. Schm.
Civil Law, 148.
CAMBIPARTIA. Champerty; from campus, a
field, and partus, divided. Spelman.
CAMBIPARTICEPS. A champertor.
CAMBIST. In mercantile law. A person skilled
in exchanges; one who trades in promissory notes
or bills of exchange; a broker.
CAMBIUM. In the civil law. Change or exchange.
A term applied indifferently to the exchange of
land, money, or debts. Du Cange.
Cambium reale or manuals was the term generally used
to denote the technical common-law exchange of lands;
cambium locale, mercantile, or trajectitium, was used to
designate the modern mercantile contract of exchange,
whereby a man agrees, in consideration of a sum of money
paid him in one place, to pay a like sum in another place.
Poth. de Change, n. 12; Stony, Bills, § 2, et seq.
CAMERA. In old English law. A chamber, room,
or apartment; a judge's chamber; a treasury; a
chest or coffer. Also, a stipend payable from
vassal to lord; an annuity. See In Camera.
CAMERA REGIS. In old English law. A cham-
ber of the king; a place of peculiar privileges
especially in a commercial point of view. The
city of London was so called. Year Book, p. 7,
Hen. VI, 27; Burrill, Law Dic.'
CAMERA SCACCARII. The old name of the
exchequer chamber.
CAMERA STELLATA. The star chamber (q. v.).
CAMERALISTICS. The science of finance or pub-
lic revenue, comprehending the means of raising
and disposing of it.
CAMERARIUS. A chamberlain; a keeper of the
public money; a treasurer. Spelman Gloss. Cam-
bellarius; 1 Perr. & D. 243. Also a bailiff or re-
ceiver.
CAMINO. In Spanish law. A road or highway.
Las Partidas, pt. 3, tit. 2, 1. 6.
CAMOUFLAGE. The art of disguising or con-
cealing the nature of objects. Palmer v. -Com-
monwealth, 240 Ky. 175, 41 S.W.2d 936, 938.
CAMP. The ground or spot on which huts, tents,
are erected for shelter; single hut or shelter; to
camp; to encamp; to lodge in a camp. Jones v.
State, 64 Ga.App. 376, 13 S.E.2d 462, 465.
CAMPAIGN. All the things and necessary legal
and factual acts done by a candidate and his ad-
herents to obtain a majority or plurality of the
votes to be cast; running for office, or candidacy
for office. Norris v. United States, C.C.A.Neb., 86
F.2d 379, 382. Any organized effort to promote a
cause or to secure some definite result with any
group of persons. State ex rel. Green v. City of
Cleveland, Ohio App., 33 N.E.2d 35, 36.
CAMPANA. In old European law. A bell. Spel-
man.
CAMPANA BAJULA. A small handbell used in
the ceremonies of the Romish church; and, among
Protestants, by sextons, parish clerks, and criers.
Cowell.
CAMPANARIUM, CAMPANILE. A belfry, bell
tower, or steeple; a place where bells are hung.
Spelman; Townsh.Pl. 191, 213.
CAMPERTUM. A part of a larger field or ground,
which would otherwise be in gross or in common.
See Champert; Champerty.
CAMPBELL'S (LORD) ACTS. English statutes,
for amending the practice in prosecutions for
libel, 9 & 10 Vict. c. 93; also 6 & 7 Vict. c. 96,
providing for compensation to relatives in the case
of a person having been killed through negligence;
also 20 & 21 Vict. c. 83, in regard to the sale of
obscene books, etc.
CAMPERS. A share; a champertor's share; a
champertous division or sharing of land.
CAMPERTUM. A cornfield; a field of grain.
Blount; Cowell; Jacob; Whishaw.
CAMPFIGHT. In old English law. The fighting
of two champions or combatants in the field; the
judicial combat, or duellum. 3 Inst. 221.
CAMPUM PARTERE. To divide the land. See
Champerty.
CAMPUS. (Lat. A field.)
In old European law. An assembly of the peo-
ple anciently held in the open air, in some plain.
In feudal and old English law. A field, or
plain. The field, ground, or lists marked out for
the combatants in the duellum, or trial by battle.
Burrill, Law Dict.
CAMPUS MAIL. The field of May. An anniver-
sary assembly of the Saxons, held on May-day,
when they confederated for the defense of the
kingdom against all its enemies.
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CANCELLI
CAMPUS MARTI!. The field of March. See
Champ de Mars.
CAN. As a noun, a contraption in which em-
ployees are lowered to the floor of a mine. Eagle-
Picher Mining & Smelting Co. v. Coffey, 186 Okl.
214, 97 P.2d 48, 49.
CAN. As a verb, to be enabled by law; to have a
right to, Bailey Realty & Loan Co. v. Bunting, 31
Ala.App. 450, 19 So.2d 607, 608. To put in a can
or cans, to preserve by putting in sealed cans, to
tin, Henry v. Markesan State Bank, C.C.A.Minn.,
68 F.2d 554, 557; is often interpreted as the
equivalent of "may." The Pantorium v. Mc-
Laughlin, 116 Neb. 61, 215 N.W. 798, 799. See
Cannot.
CANA. A Spanish measure of length varying (in
different localities) from about five to seven feet.
CANADA. Sp. Valley. Benavides v. State, Tex.
Civ.App., 214 S.W. 568, 572.
CANADIAN JUMPER. A term applied to a
nervous person who jumps when another touches
him, shouting at the same time, or when anything
thrown hits him, or when a loud noise is made.
Goupiel V. Grand Trunk Ry. Co., 94 Vt. 337, 111
A. 346, 347.
CANAL. An artificial ditch or trench in the earth,
for confining water to a defined channel, to be used
for purposes of transportation. See Bishop v.
Seeley, 18 Conn. 394; Hubbard v. Dunne, 276 Ill.
598, 115 N.E. 210, 215; Guinan v. Boston, Cape
Cod & New York Canal Co., C.C.A.N.Y., 1 F.2d
239.
It includes the banks; it has reference to the
excavation or channel as a receptacle for the wa-
ter; it is an artificial thing. Kennedy v. Indianap-
olis, 103 U.S. 604, 26 L.Ed. 550. As used in statute
concerning right of way over public lands for
irrigation, it embraces whole project including
reservoir. U. S. v. Big Horn Land & Cattle Co.,
C.C.A.Colo., 17 F.2d 357, 364; Johnson Irr. Co. v.
Ivory, 46 Wyo. 221, 24 P.2d 1053, 1056.
CANCEL. To obliterate; to strike or cross out;
to destroy the effect of an instrument by defacing,
obliterating, expunging, or erasing it; to revoke
or recall. Ellsworth College v. Carleton, 178 Iowa
845, 160 N.W. 222, 223; Reliance Life Ins. Co. v.
Thayer, 84 Okl. 238, 203 P. 190, 192. To annul or
destroy, make void or invalid, or set aside. Irwin
v. State Brokerage Co., 82 Ind.App. 687, 147 N.E.
531, 532; In re Crawford's Will, 80 Misc. 615, 142
N.Y.S. 1032, 1033; Clegg v. Schvaneveldt, 79 Utah
195, 8 P.2d 620, 621. To rescind or abandon.
Pearson v. Brown, 27 Cal.App. 125, 148 P. 956, 958.
To repeal, surrender, or waive. Greib v. Dullea,
66 Cal.App.2d 986, 153 P.2d 581, 590. To terminate.
Schwartz v. Van Winkle, Sup., 47 N.Y.S.2d 264,
265.
The term is sometimes equivalent to "discharge"
or "pay." Auburn City Bank v. Leonard, 40 Barb.,
N.Y., 119; Debes v. Texas Nat. Bank of Beaumont,
Tex.Civ.App., 92 S.W.2d 476, 479.
Courts of equity frequently cancel instruments which
have answered the end for which they were created, or
instruments which are void or voidable, ii order to pre-
vent them from being vexatiously used against the person
apparently bound by them. Snell, Eq. 498.
See Cancellation.
CANCELLARIA. Chancery; the court of chan-
cery. Curia cancellaria is also used in the same
sense. See 4 Bl.Comm. 46; Cowell.
CANCELLARII ANGLI)E DIGNITAS EST, UT
SECUNDUS A REGE IN REGNO HABETUR.
The dignity of the chancellor of England is that
he is deemed the second from the sovereign in
the kingdom. 4 Inst. 78.
CANCELLARIUS. A chancellor; a scrivener, or
notary. A janitor, or one who stood at the door
of the court and was accustomed to carry out
the commands of the judges. Du Cange.
In early English law, the keeper of the king's seal. In
this sense only, the word chancellor seems to have been
used in the English law; 3 Bla.Comm. 46. See 15 Harv.L.
Rev. 109; 4 Co.Inst. 78; Dugdale Orig. Jur. fol. 34 ; and
generally Selden, Discourses ; Inderwick, King's Peace ; 3
Steph.Com. 346; 1 Poll. & Maitl. 172; 1 Stubbs, Const.
Hist. 381; Campbell, Lives of the Lord Chancellors, vol: 1;
Holdsw. Hist. E. L. ; Pollock, Expans. of C. L.
CANCELLATION. Abandonment of contract.
State ex rel. Pacific Mut. Life Ins. Co. v. Larson,
152 Fla. 729, 12 So.2d 896, 897. Act of crossing
out a writing, Plaut v. Shirley, 200 Ky. 619, 255
S.W. 273, 274; In re Parsons' Will, 119 Misc. 26,
195 N:Y.S. 742, 745; Culp v. First Commercial
Say . Bank of Constantine, 288 Mich. 646, 286 N.W.
113, 114; act which manifests an intent to annul
and puts the instrument in condition where its
invalidity appears on its face, In re Akers' Will,
74 App.Div. 461, 77 N.Y.Supp. 643; Baldwin v.
Howell, 45 N.J.Eq. 519, 15 A. 236; In re Tremain's
Will, Surr., 7 N.Y.S.2d 781, 790; Annulment or ab-
rogation, Golden v. Fowler, 26 Ga. 464, Winton
v. Spring, 18 Cal. 455, Sanborn v. Ballonfonte, 98
Cal.App. 482, 277 P. 152, 155; defacement or muti-
lation of instrument, Worcester Bank & Trust
Co. v. Ellis, 292 Mass. 88, 197 N.E. 637, 639. Re-
duction by insurer of amount of insurance, Gill
v. Fidelity Phenix Fire Ins. Co., D.C.Ky., 5 F.Supp.
1, 2; Suspension of insurance policy, Federal Land
Bank of Omaha v. Farmers' Mut. Ins. Ass'n of
Adams and Adjoining Counties, 217 Iowa 1098, 253
N.W. 52. Termination, Otterbein v. Babor & Co-
meau Co., 272 N.Y. 149, 5 N.E.2d 71, 72, 107 A.L.R.
1510; words of revocation written across instru-
ment, In re Semler's Will, 176 Misc. 687, 28 N.Y.
S.2d 390, 392, 393.
Cancellation is properly distinguished from obliteration.
Townshend v. Howard, 86 Me. 285, 29 A. 1077. Spoliation
may amount to a cancellation. Cancellation does not
revoke unless done with that intention. In re Woods' Will,
Sur., 11 N.Y.Supp. 157.
CANCELLATURA. In old English law. A can-
celing. Bract. 398b.
CANCELLI. The rails or lattice work or balus-
ters inclosing the bar of a court of justice or the
communion table. Also the lines drawn on the
face of a will or other writing, with the intention
of revoking or annulling it.
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CANDIDATE
CANDIDATE. One who seeks or offers himself,
or is put forward by others, for an office, privilege,
or honor. Starkweather v. Hoss, 126 Or. 630, 270
P. 768, 770; State ex rel. Ranney v. Corey, Ohio
App., 47 N.E.2d 799, 800; it is not necessary that
he should have been nominated. Leonard v. Corn.,
112 Pa. 624, 4 A. 224. A nominee, State ex rel.
Van Schoyck v. Board of Com'rs of Lincoln Coun-
ty, 46 N.M. 472, 131 P.2d 278, 284. Under a presi-
dential primary law, a person receiving the ap-
proval sof the required number of petitioners may
be deemed a candidate even contrary to his
wishes. McCamant v. Olcott, 80 Or. 246, 156 P.
1034, 1038, L.R.A.1916E, 706.
CANDLEMAS-DAY. In English law. A festival
appointed by the church to be observed on the
second day of February in every year, in honor
of the purification of the Virgin Mary, being forty
days after her miraculous delivery. At this fes-
tival, formerly, the Protestants went, and the
Papists now go, in procession with lighted can-
dles; they also consecrate candles on this day for
the service of the ensuing year. It is the fourth
of the four cross quarter-days of the year. Whar-
ton.
CANE. In Scotch law. The same as cain (q. v.).
CANFARA. In old records. A trial by hot iron,
formerly used in England. Whishaw.
CANNOT. Denotes that one is not able (to do
some act). Southern Pac. Co. v. Frye & Bruhn,
82 Wash. 9, 143 P. 163, 165. But the term is often
equivalent to "shall not." Bragg v. Hatfield, 124
Me. 391, 130 A. 233, 234.
CANON.
A Dignitary of the English Church
A dignitary of the English church, being a pre-
bendary or member of a cathedral chapter. All
members of chapters except deans are now en-
titled canons, in England. 2 Steph.Comm. 11th ed.
687, n.; 1 Bla.Comm. 382.
A Law, Rule, etc.
A law, rule, or ordinance in general, and of the
church in particular. An ecclesiastical law or stat-
ute. A rule of doctrine or discipline. The term
is generally applied to designate the ordinances
of councils and decrees of popes.
A System or Aggregation of Correlated Rules
A system or aggregation of correlated rules,
whether of statutory origin or otherwise, relat-
ing to and governing a particular department of
legal science or a particular branch of the sub-
stantive law.
Canon law. A body of ecclesiastical jurispru-
dence. In England, according to Blackstone,
there is a kind of national canon law. 1 Bl.
Comm. 82. The canon law is contained in two
principal parts,—the decrees or ecclesiastical con-
stitutions made by the popes and cardinals; and
the decretals or canonical epistles written by the
pope, or by the pope and cardinals, at the suit of
one or more persons. As the decrees set out the
origin of the canon law, and the rights, dignities,
and decrees of ecclesiastical persons, with their
manner of election, ordination, etc., so the de-
cretals contain the law to be used in the ecclesias-
tical courts. Jacob. The canon law forms no part
of the law of England, unless it has been brought
into use and acted on there; 11 Q.B. 649. See gen-
erally Encyel.Br., sub voce, Canon Law; Maitland,
Canon Law; Jenks' Teutonic Law; 1 Sel. Essays
on Anglo-Amer.Leg.Hist. 46; Ayliffe, Par.Jur.Can.
Ang.; Preface to Burn, Eccl.Law, Tyrwhitt ed.
22; Hale, Civ.L. 26; Bell's Case of a Putative
Marriage, 203; Dict. du Droit Canonique; Stair,
Inst. b. 1, t. 1, 7; 1 Poll. & Maitl. 90.
Canon religiosorum. In ecclesiastical records. A
book wherein the religious of every greater con-
vent had a fair transcript of the rules of their
order, frequently read among them as their local
statutes. Kennett, Gloss.; Cowell.
Canons of construction. The system of fundamen-
tal rules and maxims which are recognized as
governing the construction or interpretation of
written instruments. In re Clarke, 174 App.Div.
736, 161 N.Y.S. 484, 487.
Canons of descent. The legal rules by which in-
heritances are regulated, and according to which.
estates are transmitted by descent from the an-
cestor to the heir.
Canons of inheritance. The legal rules by which
inheritances are regulated, and according to which
estates are transmitted by descent from the an-
cestor to the heir. 2 Bl.Comm. 208.
In Civil, Spanish, and Mexican Law an annual
charge or rent; an emphyteutic rent.
In Old English records. A prestation, pension, or
customary payment.
CANONICAL. Pertaining to, or in conformity to,
the canons of the church.
CANONICAL DISABILITY. Incurable physical
impotency or incapacity for copulation. D. v. D.,
Del.Super., 2 Terry 263, 20 A.2d 139, 141.
CANONICAL OBEDIENCE. That duty which a
clergyman owes to the bishop who ordained him,
to the bishop in whose diocese he is beneficed, and
also to the metropolitan of such bishop. Wharton.
CANONICUS. In old English law. A canon.
Fleta, lib. 2, c. 69, § 2.
CANONIST. One versed and skilled in the canon
law; a professor of ecclesiastical law.
CANONRY. In English ecclesiastical law. An
ecclesiastical benefice, attaching to the office of
canon. Holthouse.
CANT. In the civil law. A method of dividing
property held in common by two or more joint
owners. It may be avoided by the consent of
all of those who are interested, in the same man-
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CAPIAS
ner that any other contract or agreement may be
avoided. Hayes v. Cuny, 9 Mart.O.S. (La.) 87.
See Licitacion.
CANTEL, or CANTLE. A lump, or that which is
added above measure; also a piece of anything,
as "cantel of bread," or the like. Blount.
CANTERBURY, ARCHBISHOP OF. In English
ecclesiastical law. The primate of all England;
the chief ecclesiastical dignitary in the church.
His customary privilege is to crown the kings and
queens of England. Has also, by 25 Hen. VIII, c.
21, the power to grant dispensations. Wharton.
CANTRED. A district comprising a hundred vil-
lages; a hundred. A term used in Wales in the
same sense as "hundred" is in England. Cowell;
Termes de la Ley.
CANUM. In feudal law. A species of duty or
tribute payable from tenant to lord, usually con-
sisting of produce of the land.
CANVASS. The act of examining and counting
the returns of votes cast at a public election.
Bowler v. Eisenhood, 1 S.Dak. 577, 48 N.W. 136,
12 L.R.A. 705; In re Stewart, 24 App.Div. 201, 48
N.Y.S. 957.
CANVASSER. Any of certain persons, as officers
of a state, county, or district, intrusted with the
duty of examining the returns of votes cast at an
election. See Canvass.
One who, in a given town, city, or county, goes
from house to house in an effort to take orders
for goods; in this sense, to be distinguished from
traveling salesmen. City of El Dorado Springs
v. Highfill, 268 Mo. 501, 188 S.W. 68.
CAP. In mining, a square piece of plank or block
wedged between the top of posts or props and the
roof of the mine. Big Branch Coal Co. v. Wren-
chie, 160 Ky. 668, 170 S.W. 14, 16.
CAP BOARD. Board about fourteen inches long
and about four inches wide which is placed on top
of a pillar in mines to prevent pillar from break-
ing through slate when weight comes against it.
Hall v. Proctor Coal Co., 236 Ky. 813, 34 S.W.2d
425, 426.
CAP OF MAINTENANCE. One of the regalia or
ornaments of state belonging to the sovereigns of
England, before whom it is carried at the corona-
tion and other great solemnities. Caps of mainte-
nance are also carried before the mayors of sev-
eral cities in England. Enc.Lond.
CAPABLE. Susceptible; competent; qualified;
fitting; possessing legal power or capacity. Unit-
ed States v. Sischo, D.C.Wash., 262 F. 1001, 1005.
Able, fit or adapted for. U. S. v. Sischo, C.C.A.
Wash., 270 F. 958, 961; State v. Wharton, 132 Kan.
409, 295 P. 656, 658. "Capable of contracting" as
meaning legally capable, not mentally capable.
Szwed v. Morris & Co., 187 Mo.App. 510, 174 S.W.
146, 148.
CAPACITY. A word having many meanings, de-
pendent on its relationship to the subject-matter.
Campbell v. Cornish, 163 Okl. 213, 22 P.2d 63.
It may mean: ability; actual production of an oil well,
Hells v. Ward, D.C.La., 20 F.Supp. 514, 517; an intelligent
perception and understanding of the dispositions made of
property, etc., In re Null's Estate, 302 Pa. 64, 153 A. 137,
139. Qualification; size, space, or compass, strength, pow-
er or force, Campbell v. Cornish, 163 Okl. 213, 22 P.2d 63;
sound mind, Chambers v. Winn, Tex.Civ.App., 133 S.W.2d
279, 282; the attribute of persons which enables them to
perform civil or juristic acts. Sargent v. Burdett, 96 Ga.
111, 22 S.E. 667; 2 Com.Dig. 294.
"Capacity to sue" consists in right to come into court,
Braden v. Neal, 132 Kan. 387, 295 P. 678, 680.
"Public capacity" of municipal property is such capacity
as all the people of the state are alike interested in. Board
of Com'rs of Woodward County v. Willett, 49 Okl. 254, 152
P. 365, 366, L.R.A.1916E, 92.
CAPAX DOLL. Lat. Capable of committing
crime, or capable of criminal intent. The phrase
describes the condition of one who has sufficient
intelligence and comprehension to be held crimi-
nally responsible for his deeds.
CAPAX NEGOTII. Competent to transact af-
fairs; having business capacity.
CAPE. In English practice. A judicial writ, now
abolished, touching a plea of lands or tenements.
It was divided into cape magnum, or the grand cape,
which lay before appearance to summon the tenant to
answer the default, and also over to the demandant and
cape parvum, or petit cape, after appearance or view
granted, summoning the tenant to answer the default only.
Termes de la Ley; 3 Steph.Comm. 606, note; Fleta, 1. 6,
c. 55, § 40; 2 Wms.Saund. 45 c, d; Rose. Real Act. 165, et
seq. It was called a "cape," from the word with which it
commenced, and a "grand cape" (or cape magnum) to dis-
tinguish it from the petit cape, which lay after appearance.
CAPE AD VALENTIAM. A species of cape mag-
num.
CAPELLA. In old records. A box, cabinet, or
repository in which were preserved the relics of
martyrs. Spelman. A small building in which
relics were preserved; an oratory or chapel. Id.
In old English law. A chapel. Fleta, lib. 5,
c. 12, § 1; Spelman; Cowell.
CAPERS. Vessels of war owned by private per-
sons, and different from ordinary privateers only
in size, being smaller. Beawes, Lex Mere. 230.
CAPIAS. Lat. "That you take." The general
name for several species of writs, the common
characteristic of which is that they require the of-
ficer to take the body of the defendant into custo-
dy; they are writs of attachment or arrest.
In English practice, the process on an indict-
ment when the person charged is not in custody,
and in cases not otherwise provided for by statute.
4 Steph.Comm. 383.
Capias Ad Audiendum Judicium
A writ issued, in a case of misdemeanor, after
the defendant has appeared and is found guilty,
to bring him to hear judgment if he is not present
when called. 4 Bl.Comm. 368.
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CAPIAS
Capias Ad Computandum
In the action of account render, after judgment
of quod computet, if the defendant refuses to ap-
pear personally before the auditors and make his
account, a writ by this name may issue to compel
him. The writ is now disused. See Thesaurus
Brevium, 38; Coke, Entries, 46, 47, Rastell, En-
tries, 14 b. 15.
Capias Ad Respondendum
A judicial writ, (usually simply termed a
"capias," and commonly abbreviated to ca.
resp.) by which actions at law were frequently
commenced; and which commands the sheriff to
take the defendant, and him safely keep, so that
he may have his body before the court on a cer-
tain day, to answer the plaintiff in the action. 3
Bl.Comm. 282; 1 Tidd, Pr. 128. It notifies de-
fendant to defend suit and procures his arrest
until security for plaintiff's claim is furnished.
Null v. Staiger, 333 Pa. 370, 4 A.2d 883, 885.
Capias Ad Satisfaciendum
A writ of execution, (usually termed, for brevi-
ty, a "ca. sa.,") which commands the sheriff to
take the party named, and keep him safely, so
that he may have his body before the court on a
certain day, to satisfy the damages or debt and
damages in certain actions. It deprives the party
taken of his liberty until he makes the satisfac-
tion awarded. 3 Bl.Comm. 414, 415; 2 Tidd, Pr.
993, 1025; Litt. § 504; Co.Litt. 289a; Strong v.
Linn, 5 N.J.Law, 803. As 'a rule it lay in all cases
where a capias ad respondendum lay. It was a
very common form of execution; but its efficiency
has been destroyed by statutes.
Capias Extendi Facias
A writ of execution issuable in England against
a debtor to the crown, which commands the sher-
iff to "take" or arrest the body, and "cause to be
extended" the lands and goods of the debtor.
Man.Exch.Pr. 5.
Capias in Withernam
A writ, in the nature of a reprisal, which lies for
one whose goods or cattle, taken under a distress,
are removed from the county, so that they cannot
be replevied, commanding the sheriff to seize oth-
er goods or cattle of the distrainor of equal value.
Capias Pro Fine
(That you take for the fine or in mercy.) For-
merly, if the verdict was for the defendant, the
plaintiff was adjudged to be amerced for his
false claim; but, if the verdict was for the plain-
tiff, then in all actions vi et armis, or where the
defendant, in his pleading, had falsely denied his
own deed, the judgment contained an award of a
capiatur pro fine; and in all other cases the de-
fendant was adjudged to be amerced. The inser-
tion of the misericordia or of the capiatur in the
judgment is now unnecessary. Wharton; 8 Coke,
60; 11 Coke, 43; Co.Litt. 131; 3 Bl.Comm. 398; 5
Mod. 285. A writ in all respects an execution for
collection of fine. Board of Councilmen of City of
Frankfort v. Rice, 249 Ky. 771, 61 S.W.2d 614, 615.
Capias Utlagatum
(You take the outlaw.) In English practice.
A writ which lies against a person who has been
outlawed in an action, by which the sheriff is
commanded to take him, and keep him in cus-
tody until the day of the return, and then present
him to the court, there to be dealt with for his
contempt. Reg.Orig. 138b; 3 Bl.Comm. 284.
CAPIATUR PRO FINE. (Let him be taken for
the fine.) In English practice. A clause inserted
at the end of old judgment records in actions of
debt, where the defendant denied his deed, and
it was found against him upon his false plea, and
the jury were troubled with the trial of it. Cro.
Jac. 64. See Capias pro Fine.
CAPITA. Heads, and, figuratively, entire bodies,
whether of persons or animals. Spelman.
Persons individually considered, without rela-
tion to others, (polls ;) as distinguished from
stirpes or stocks of descent. The term in this
sense, making part of the common phrases, in
capita, per capita, is derived from the civil law.
Inst. 3, 1, 6.
CAPITA, PER. By heads; by the poll; as in-
dividuals. In the distribution of an intestate's
personalty, the persons legally entitled to take are
said to take per capita, that is, equal shares,
when they claim, each in his own right, as in
equal degree of kindred; in contradistinction to
claiming by right of representation, or per stirpes.
CAPITAL, n. The word may have different mean-
ings when used in different connections. Commis-
sioner of Corporations and Taxation v. Filoon, 310
Mass. 374, 38 N.E.2d 693, 699, 700, 705.
It may mean : actual property or estate, People v.
Com'rs of Taxes, 23 N.Y. 192; State ex rel. Corinne Realty
Co. v. Becker, 320 Mo. 908, 8 S.W.2d 970, 972. Aggregate
of property, Southern Package Corporation v. State Tax
Commission, 195 Miss. 864, 15 So.2d 436; all capital
invested plus surplus or undivided profits, W. A. Gordon
& Co. v. Lines, D.C.La., 25 F.2d 894, 895; amount, or
value, of property up to par value of paid up issued shares
or stated value of no-par shares, Randall v. Bailey, 23
N.Y.S.2d 173, 182; assets, Pace v. Pace Bros. Co., 91 Utah,
149, 63 R2d 590, 591. Capital stock, Security State Bank
v. Breen, 277 N.W. 497, 500, 65 S.D. 640; condemnation
award, In re Wacht's Estate, 32 N.Y.S.2d 871, 903, 904;
contributions by partners, M. & C. Creditors Corporation
v. Pratt, 17 N.Y.S.2d 240, 258, 259, 172 Misc. 695. Dividends
earned before creation of trust, Hubley's Guardian Ad
Litem v. Wolfe, 259 Ky. 574, 82 S.W.2d 830, 834, 101 A.L.R.
1359; dividends received by trustee stockholder in liquida-
tion of corporation, Anderson v. Bean, 272 Mass. 432, 172
N.E. 647, 651, 72 A.L.R. 959; extraordinary dividends paid
on reducing value of stock, In re Sears' Will, 26 N.Y.S.2d
912, 915, 176 Misc. 242. Fund, Civ.Code, art. 148. French
v. Wolf, 181 La. 733, 160 So. 396, Webb v. Armistead,
C.C.Va., 26 F. 70; gain from sale of realty, United States
v. National City Bank of New York, D.C.N.Y., 21 F.Supp.
791, 794; means contributed by share owners, Parkinson
v. State Bank of Millard County, 84 Utah, 278, 35 P.2d 814,
820, 94 A.L.R. 1112; money invested at interest; money
required of partners by agreement, M. & C. Creditors Cor-
poration v. Pratt, 17 N.Y.S.2d 240, 258, 259, 172 Misc. 695;
money which one adventures in an undertaking; paid-up
issued shares of stock, Newfield v. Stieglitz, D.C.N.Y., 47
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CAPITAL
F.Supp. 885, 886; place where legislative department holds
its sessions and where chief offices of the executive are
located; political and governmental metropolis; preferred
stock received as dividend, Burns v. Hines, 298 Ill.App. 563,
19 N.E.2d 382, 392; principal sum of a fund of money;
proceeds of sale or exchange of capital of trust property,
In re Clarke's Will, 204 Minn. 574, 284 N.W. 876, 879;
property, Putnam v. U. S., C.C.A.Mass., 149 F.2d 721, 726;
repayment of a debt, Philadelphia Nat. Bank v. Rothensies,
D.C.Pa., 43 F.Supp. 923, 925; seat of government; stock
dividends, Gray v. Hemenway, 268 Mass. 515, 168 N.E. 102,
103; subscribed, paid-up capital, Child v. Ogden State
Bank, 81 Utah, 464, 20 P.2d 599, 607, 88 A.L.R. 1284; sum
formed when profits apportioned to building and loan
association shares coalesce with dues paid, In re Sixth
Ward Buildina & Loan Ass'n of Newark, 134 N.J.Eq. 98,
34 A.2d 292, 295; sum total of corporate stock, Haggard v.
Lexington Utilities Co., 260 Ky. 261, 84 S.W.2d 84, 87;
surplus used as capital, Feeders' Supply Co. v. Commis-
sioner of Internal Revenue, C.C.A.8, 31 F.2d 274, 278;
unamortized debt discount and expense, State Tax Commis-
sion v. Mississippi Power & Light Co., 194 Miss. 260, 11
So.2d 828, 829.
In political economy, that portion of the produce of
industry existing in a country, which may be made directly
available, either for the support of human existence, or the
facilitating of production.
The term does not embrace temporary loans. Bailey v.
Clark, 21 Wall. 286, 22 L.Ed. 651. But see Bridgewater
Mfg. Co. v. Funkhouser, 115 Va. 476, 79 S.E. 1074, 1075.
Income is the fruit of capital; capital is the source of
income. Carter v. Rector, 88 Okl. 12, 210 P. 1035, 1037.
As to what is moneyed capital in a federal act respecting
state taxation of national bank stock, see First Nat, Bank
v. Chapman, 173 U.S. 214, 19 S.Ct. 407, 43 L.Ed. 669.
CAPITAL, adj. Affecting or relating to the head
or life of a person; entailing the ultimate pen-
alty. Principal; leading; chief; as "capital bur-
gess." 10 Mod. 100.
Capital Assets
All capital invested plus surplus or undivided
profits. Williams v. McGowan, D.C.N.Y., 58 F.
Supp. 692, 694, 695; Assets of a permanent or
fixed nature or employed in carrying on business
or trade. Rathborne v. Collector of Revenue, 196
La. 795, 200 So. 149, 153, 154; goodwill, Williams v.
McGowan, D.C.N.Y., 58 F.Supp. 692, 694, 695, Com-
missioner of Internal Revenue v. Shapiro, C.C.A.6,
125 F.2d 532, 535, 536; property acquired and held
for profit or investment for more than two years.
Sommers v. Commissioner of Internal Revenue,
C.C.A.10, 63 F.2d 551, 553; title to property held
for profit. Jones' Estate v. Commissioner of In-
ternal Revenue, C.C.A.Tex., 127 F.2d 231, 232.
Capital Case or Crime
One in or for which death penalty may, but
need not necessarily, be inflicted, Lee v. State, 31
Ala.App. 91, 13 So.2d 583, 587.
Capital Expenditure
Cost of construction made with expectation of
existence for an indefinite period, E. W. Edwards
& Son v. Clarke, D.C.N.Y., 29 F.Supp. 671, 672, 673-,
expenditure in nature of an investment for the fu-
ture, Marin Union Junior College Dist. v. Gwinn,
106 Cal.App. 12, 288 P. 799, 800.
Capital Gains
Additions to principal, Holcombe v. Ginn, 296
Mass. 415, 6 N.E.2d 351, 108 A.L.R. 1134; gains
from sale of capital assets in excess of appraisal
values or costs, In re Talbot's Will, 170 Misc. 138,
9 N.Y.S.2d 806, 810.
4
Capital Impairment
Reduction of assets of corporation below ag-
gregate of outstanding shares of capital stock.
Ashman v. Miller, C.C.A.Mich., 101 F.2d 85, 90.
Capital Increase
An increase not attributable to earnings. In re
Lueders' Estate, 337 Pa. 155, 10 A.2d 415, 417.
Capital Investment
Acquisition price of a "capital asset", Commis-
sioner of Internal Revenue v. Rowan Drilling Co.,
C.C.A.Tex., .130 F.2d 62, 64, 65; capital stock, sur-
plus and undivided profits, O'Connor v. Bankers
Trust Co., 159 Misc. 920, 289 N.Y.S. 252, 276; mon-
ey spent to increase an asset. Peerless Stages v.
Commissioner of Internal Revenue, C.C.A.9, 125
F.2d 869, 871.
Capital Outlay
Money expended in 'acquiring, equipping, and
promoting an enterprise. Rideout v. Eich, 105
Cal.App. 597, 288 P. 450, 454.
Capital Punishment
Punishment of death. Ex parte Herndon, 18
Okl.Cr. 68, 192 P. 820, 19 A.L.R. 804, State v. John-
ston, 83 Wash, 1, 144 P. 944, 945.
Capital Recovery
Collection of charged-off bad debt where reserve
account system is used. National Bank of Tulsa
v. Oklahoma Tax Commission, Okl., 145 P.2d 768,
771, 772,
Capital Stock
The term has various meanings.
It may mean : amount fixed by charter to be subscribed
and paid in or secured to be paid in by shareholders. State
ex rel. Corinne Realty Co. v. Becker, 320 Mo. 908, 8 S.W.2d
970, 971. Amount of stock that corporation may issue.
Schwemer v. Fry, 212 Wis. 88, 249 N.W. 62, 90 A.L.R. 308;
amount subscribed, contributed or secured to be paid in.
Haggard v. Lexington Utilities Co., 260 Ky. 261, 84 S.W.
2d 84, 87; Person v. Board of State Tax Com'rs, 184 N.C.
499, 115 S.E. 336, 346; capital, Central Illinois Public
Service Co. v. Swartz, 284 Ill. 108, 119 N.E. 990, 992; Louis-
ville & N. R. Co. v. Bosworth, D.C.Ky., 209 F. 380, 411,
corporate assets or property, Bates v. Daley's Inc., 5 Cal.
App.2d 95, 42 P.2d 706, 709; evidence of rights in prop-
erty. Southern Package Corporation v. State Tax Commis-
sion, 195 Miss. 864, 15 So.2d 436; fund employed in carry-
ing on business or enterprise, Chicago, M., St. P. & P. R.
v. Harmon, 89 Mont. 1, 295 P. 762, 769: liability of the
corporation to its shareholders, after creditors' claims have
been liquidated, Department of Treasury of Indiana v.
Crowder, 214 Ind. 252, 15 N.E.2c1 89, 91; valuation of the
corporation as a business enterprise, Commonwealth v.
Columbia Gas & Electric Corporation, 336 Pa. 209, 8 A.2d
404, 410.
Capital Stock Tax
Tax on privilege of doing business, Wisconsin
Cent. Ry. Co. v. U. S., Ct.C1., 41 F.2d 870, 885.
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CAPITAL
Capital Surplus
Property paid into corporation by shareholders
in excess of capital stock liability. Commissioner
of Corporations and Taxation v. Filoon, 310 Mass.
374, 38 N.E.2d 693, 699, 700.
CAPITALE. A thing which is stolen, or the value
of it. Blount.
CAPITALE VIVENS. Live cattle. Blount.
CAPITALIS. In old English law. Chief ; princi-
pal; at the head. A term applied to persons,
places, judicial proceedings, and some kinds of
property.
CAPITALIS BARO. In old English law. Chief
baron. Capitalis baro scaccarii domini, regis, chief
baron of the exchequer. Townsh.Pl. 211.
CAPITAL'S CUSTOS. Chief warden or magis-
trate; mayor. Fleta, lib. 2, c. 64, § 2.
CAPITAL'S DEBITOR. The chief or principal
debtor, as distinguished from a surety, (plegius.)
CAPITALIS DOMINUS. Chief lord. Fleta, lib.
1, c. 12, § 4; Id. c. 28, § 5.
CAPITALIS JUSTICIARIUS. The chief justicia-
ry; the principal minister of state, and guardian
of the realm in the king's absence.
This office originated under William the Conqueror ;
but its power was greatly diminished by Magna Charta,
and finally distributed among several courts by Edward I.
Spelman; 3 BI.Comm. 38.
CAPITALIS JUSTICIARIUS AD PLACITA COR-
AM REGE TENENDA. Chief justice for holding
pleas before the king. The title of the chief jus-
tice of the king's bench, first assumed in the lat-
ter part of the reign of Henry III. 2 Reeve, Eng.
Law, 91, 285.
CAPITALIS JUSTICIARIUS BANCI. Chief jus-
tice of the bench. The title of the chief justice
of the (now) court of common pleas, first men-
tioned in the first year of Edward I. 2 Reeve,
Eng.Law, 48.
CAPITALIS JUSTICIARIUS TOTIUS ANGLIIE.
Chief justice of all England. The title of the
presiding justice in the court of aula regis. 3
Bl.Comm. 38; 1 Reeve, Eng.Law, 48.
CAPITALIS PLEGIUS. A chief pledge; a head
borough. Townsh.P1. 35.
CAPITALIS REDITUS. A chief rent.
CAPITAL'S TERRA. A head-land. A piece of
land lying at the head of other land.
CAPITALIST. One exclusively dependent on ac-
cumulated property, whether denoting a person
of large wealth or one having an income from in-
vestments. Elliott v. Frankfort Marine, Accident
& Plate Glass Ins. Co. of Frankfort-on-the-Main,
Germany, 172 Cal. 261, 156 P. 481, 483, L.R.A.
1916F, 1026. The word has no legal meaning.
In re Green's Estate, 109 Misc. 112, 178 N.Y.S. 353,
361.
CAPITALIZATION METHOD. A method of
measuring values of realty for purpose of deter-
mining values of mortgages by expertly estimat-
ing the gross income which property should throw
off, and separately the expenses reasonably re-
quired to carry it, and thus arriving at a fair es-
timate of net income and using a capitalization
figure or factor, expertly chosen. Depreciation
must be taken into consideration in use of such
method. In re New York Title & Mortgage Co.
(Series B-K), 21 N.Y.S.2d 575, 594, 595.
CAPITALIZE. In one sense, to convert a periodi-
cal payment into a sum in hand. Brown v. Erie
R. Co., 87 N.J.Law, 487, 91 A. 1023, 1026, Ann.Cas.
1917C, 496.
CAPITANEUS. A tenant in capite. He who held
his land or title directly from the king himself.
A captain; a naval commander. This latter use
began A. D. 1264. Spelman, Gloss. Capitaneus,
Admiralius. A commander or ruler over others,
either in civil, military, or ecclesiastical matters.
CAPITARE. In old law and surveys. To head,
front, or abut; to touch at the head, or end.
CAPITATIM. Lat. By the head; by the poll;
severally to each individual.
CAPITATION TAX. A poll tax. A tax or imposi-
tion upon the person. Leedy v. Bourbon, 12 Ind.
App. 486, 40 N.E. 640; Hattiesburg Grocery Co.
v. Robertson, 126 Miss. 34, 88 So. 4, 5, 25 A.L.R.
748. It is a very ancient kind of tribute, and an-
swers to what the Latins called "tributum," by
which taxes on persons are distinguished from
taxes on merchandise, called "vectigalia." Whar-
ton.
CAPITE. Lat. By the head.
Tenure in capite was an ancient feudal tenure, whereby
a man held lands of the king immediately. It was of two
sorts,—the one, principal and general, or of the king as
the source of all tenure ; the other, special and subaltern,
or of a particular subject. It is now abolished. Jacob.
As to distribution per capita, see Capita, per.
CAPITE MINUTUS. In the civil law. One who
had suffered capitis diminutio, one who lost status
or legal attributes. See Dig. 4, 5.
CAPITIS DIMINUTIO. In Roman law. A dimin-
ishing or abridgment of personality; a loss or cur-
tailment of a man's status or aggregate of legal
attributes and qualifications.
CAPITIS DIMINUTIO MAXIMA. The highest
or most comprehensive loss of status. This oc-
curred when a man's condition was changed from
one of freedom to one of bondage, when he be-
came a slave. It swept away with it all rights of
citizenship and all family rights.
CAPITIS DIMINUTIO MEDIA. A lesser or medi-
um loss of status. This occurred where a man
lost his rights of citizenship, but without losing
his liberty. It carried away also the family rights.
CAPITIS DIMINUTIO MINIMA. The lowest or
least comprehensive degree of loss of status. This
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CAPTATOR
occurred where a man's family relations alone
were changed. It happened upon the arrogation
of a person who had been his own master, (sui
juris,) or upon the emancipation of one who had
been under the patria potestas. It left the rights
of liberty and citizenship unaltered. See Inst. 1,
16, pr.; 1, 2, 3; Dig. 4, 5, 11; Mackeld.Rom.Law,
§ 144.
CAPITITIUM. A covering for the head, men-
tioned in St. 1 Hen. IV. and other old statutes,
which prescribe what dresses shall be worn by all
degrees of persons. Jacob.
CAPITULA. Collections of laws and ordinances
drawn up under heads of divisions. Spelman.
The term is used in the civil and old English law,
and applies to the ecclesiastical law also, meaning
chapters or assemblies of ecclesiastical persons.
Du Cange. The Royal and Imperial Capitula
were the edicts of the Frankish Kings and Emper-
ors.
CAPITULA CORONAE. Chapters of the crown.
Chapters or heads of inquiry, resembling the ca-
pitula itineris (infra) but of a more minute char-
acter.
CAPITULA DE JUDIE'S. A register of mort-
gages made to the Jews. 2 Bl.Comm. 343; Crabb,
Eng.Law, 130, et seq.
CAPITULA ITINERIS. Articles of inquiry which
were anciently delivered to the justices in eyre
when they set out on their circuits. These sched-
ules were designed to include all possible varieties
of crime. 2 Reeve, Eng.Law, p. 4, c. 8.
CAPITULA RURALIA. Assemblies or chapters,
held by rural deans and parochial clergy, within
the precinct of every deanery; which at first were
every three weeks, afterwards once a month, and
subsequently once a quarter. Cowell.
CAPITULARY. In French law. A collection and
code of the laws and ordinances promulgated by
the kings of the Merovingian and Carlovingian
dynasties.
Any orderly and systematic collection or code
of laws.
In ecclesiastical law. A collection of laws and
ordinances orderly arranged by divisions. A book
containing the beginning and end of each Gospel
which is to be read every day in the ceremony of
saying mass. Du Cange.
CAPITULATION. In military law. The surren-
der of a fort, fortified town, or army in the field to
a besieging or opposing army; the treaty or
agreement between the commanding officers
which embodies the terms and conditions on which
the surrender is made.
In international law. Capitulations is the name
used for treaty engagements between the Turkish
government and the principal states of Europe by
which subjects of the latter, residents in the ter-
ritory of the former, were exempt from the laws
of the places where they dwelt. 1 Kinglake, In-
vasion of Crimea 116.
"The 'usages of the Franks' begin In what are known in
international law as 'the capitulations,' granting rights of
exterritoriality to Christians residing or traveling in Mo-
hammedan countries. * * * By these * * * capitula-
tions a usage was established that Franks [a generic name
for all participants in such privileges], being in Turkey,
whether domiciled or temporarily, should be under the ju-
risdiction, civil and criminal, of their respective ministers
and consuls." Dainese v. United States, 15 Ct.C1. 64.
In the civil law. An agreement by which the
prince and the people, or those who have the right
of the people, regulate the manner in which the
government is to be administered. Wolffius, §
989.
CAPITULI AGRI. Head-fields; lands lying at
the head or upper end of furrows, etc.
CAPITULUM. Lat. A leading division of a book
or writing; a chapter; a section. Tert.Adv.Jud.
9, 19. Abbreviated, Cap.
CAPITULUM EST CLERICORUM CONGREGA-
TIO SUB UNO DECANO IN ECCLESIA CATHE-
DRAL'. A chapter is a congregation of clergy
under one dean in a cathedral church. Co.Litt. 98.
CAPPA. In old records. A cap. Cappa honoris,
the cap of honor. One of the solemnities or cere-
monies of creating an earl or marquis.
CAPPER. A decoy or lure for purpose of swin-
dling. Barron v. Board of Dental Examiners of
California, 109 Cal.App. 382, 293 P. 144, 145.
CAPRICIOUS DISBELIEF. A willful, deliberate
disbelief of an apparently trustworthy witness.
Popilock v. Piernikoski, 161 Pa.Super. 587, 56 A.
2d 326, 328.
CAPTAIN. A head-man; commander; command-
ing officer.
The captain of a war-vessel is the officer first In com-
mand. In the United States navy, the rank of "captain"
is intermediate between that of "commander" and "com-
modore." The governor or controlling officer of a vessel
in the merchant service is usually styled "captain" by the
inferior officers and seamen, but in maritime business and
admiralty law is perhaps more commonly designated as
"master." In foreign jurisprudence his title is often that
of "patron." In the United States army (and the militia)
the captain is the commander of a company of soldiers,
one of the divisions of a regiment. The term is also used
to designate the commander of a squad of municipal po-
lice.
The "captain of the watch" on a vessel is a kind of fore-
man or overseer and is an officer within statutes regulating
conduct of officers to seamen. U. S. v. Trice, D.C.Tenn.,
30 Fed. 491.
CAPTATION. In French law. The act of one
who succeeds in controlling the will of another, so
as to become master of it; used in an invidious
sense. Succession of Schlumbrecht, 138 La. 173,
70 So. 76, 79.
It Was formerly applied to the first stage of the
hypnotic or mesmeric trance.
CAPTATOR. A person who obtains a gift or leg-
acy through artifice. See Captation.
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CAPTIO. In old English law and practice. A
taking or seizure; arrest; receiving; holding of
court.
CAPTION. In Practice. That part of a legal
instrument, as a commission, indictment, etc.,
which shows where, when, and by what authority
it is taken, found, or executed. U. S. v. Beebe, 2
Dak, 292, 11 N.W. 505.
When used with reference to an indictment, • caption
signifies the style or preamble or commencement of the in-
dictment; when used with reference to a commission, it
signifies the certificate to which the commissioners' names
are subscribed, declaring when and where it was executed.
Brown. The caption is not a part of the indictment,
Brown v. Hudspeth, C.C.A.Kan., 103 F.2d 958, 959, but is
the formal history of its finding, and is to be distinguished
from the introductory portion. Harrington v. U. S., C.C.A.
Iowa, 267 F. 97, 100. Caption of indictment is entry of rec-
ord showing when and where court is held, who presided,
venire and indorsements, and who were summoned and
sworn as grand jurors. Williams v. State, 20 Ala.App. 26,
100 So. 573, 574.
The caption of a pleading, deposition, or other paper
connected with a case in court, is the heading or introduc-
tory clause which shows the names of the parties, name
of the court, number of the case on the docket or calendar,
etc. Quoted with approval in St. Louis Lightning Rod Co.
v. Johnson, 18 Ga.App. 190, 89 S.E. 169, 170. The terms
"title" and "caption" are synonymous. Id. The caption
of depositions should state the title of the cause, the names
of the parties, and at whose instance the depositions are
taken ; Knight v. Nichols, 34 Me. 208. See Waskern v.
Diamond, 1 Hemp. 701, Fed.Cas.No.17,248. Generally, the
title or caption is not part of the pleading, unless express-
ly made so by reference in the body thereof. Jackson v.
Ashton, 8 Pet. 148, 8 L.Ed. 898.
Also signifies a taking, seizure, or arrest of a person. 2
Salk. 498. The word in this sense is now obsolete in
English law.
In Scotch law. Caption is an order to incar-
cerate a debtor who has disobeyed an order, given
to him by what are called "letters of horning,"
to pay a debt or to perform some act enjoined
thereby. Bell.
CAPTIVES. Prisoners of war. As in the goods of
an enemy, so also in his person, a sort of qualified
property may be acquired, by taking him a pris-
oner of war, at least till his ransom be paid. 2
Al.Comm. 402.
CAPTOR. In international law. One who takes
or seizes property in time of war; one who takes
the property of an enemy. In a stricter sense,
one who takes a prize at sea. 2 Bl.Comm. 401;
1 Kent, Comm. 86, 96, 103. Consult Oakes v. U. S.,
174 U.S. 778, 19 S.Ct. 864, 43 L.Ed. 1169. The term
also designates a belligerent who has captured the
person of an enemy.
CAPTURE. In international law. The taking or
wresting of property from one of two belligerents
by the other. Also a taking of property by a bel-
ligerent from an offending neutral.
In some cases, this is a mode of acquiring prop-
erty. Thus every one may, as a general rule, on
his own land, or on the sea, capture any wild ani-
mal, and acquire a qualified ownership in it by
confining it, or absolute ownership by killing it.
2 Steph.Comm. 79.
Capture, in technical language, is a taking by military
power; a seizure is a taking by civil authority. U. S. v.
Athens Armory, 35 Ga. 344, Fed.Cas.No.14,473.
The sequestering of alien enemy property under vesting
orders by the alien property custodian is in the nature of
a "capture". Crowley v. Allen, D.C.Cal., 52 F.Supp. 850,
852.
CAPUT. A head; the head of a person; the
whole person; the life of a person; one's per-
sonality; status; civil condition.
At common law. A head. Caput comitatis,
the head of the county; the sheriff; the king.
Spelman. A person; a life. The upper part of
a town. Cowell. A castle. Spelman.
Capitis aestimatio. In Saxon law. The estima-
tion or value of the head, that is, the price or
value of a man's life.
Caput anni. The first day (or beginning) of the
year.
Caput baronim. The castle or chief seat of a
baron.
Caput jejunii. The beginning of the Lent fast,
e., Ash Wednesday.
Caput loci. The head or upper part of a place.
Caput lupinum. In old English law. A wolf's
head. An outlawed felon was said to be caput
lupinum, and might be knocked on the head like
a wolf. 4 Bla.Comm. 320, 284.
Caput mortuum. A dead head; dead; obsolete.
Caput portus. In old English law. The head of a
port. The town to which a port belongs, and
which gives the denomination to the port, and is
the head of it. Hale de Jure Mar. pt. 2, (de portu-
bus maris,) c. 2.
Caput, principium, et finis. The head, beginning,
and end. A term applied in English law to the
king, as head of parliament. 4 Inst. 3; 1 Bl.
Comm. 188.
In civil law. It signified a person's civil condition
or status, and among the Romans consisted of
three component parts or elements,—libertas, lib-
erty; civitas, citizenship; and familia, family.
CAPUTAGIUM. In old English law. Head or poll
money, or the payment of it. Cowell; Blount;
Spelman, Gloss.
CAPUTIUM. In old English law. A head of land;
a headland. Cowell.
CAR. A vehicle primarily intended for transpor-
tation of persons or freight, Hall v. Federal Life
Ins. Co., Mo.App., 71 S.W.2d 762, 764; a vehicle
moved on wheels, Burrus v. Continental Life Ins.
Co., 225 Mo.App. 1129, 40 S.W.2d 493, 494.
The term may include a vehicle adapted to running on
the rails of a railroad. State v. Tardiff, 111 Me. 552, 90 A.
424, 425, L.R.A.1915A, 817; a hand car, Boyd v. Missouri
Pac. Ry. Co., 249 Mo. 110, 155 S.W. 13, 17, Ann.Cas.1914D,
37; a locomotive, U. S. v. Philadelphia & R. Ry. Co., D.C.
Pa., 223 F. 215, 216; a tender and locomotive, Pennell v.
Philadelphia & Reading Railway Co., 231 U.S. 675, 34 S.Ct.
220, 58 L.Ed. 430; an automobile. Monroe's Adm'r v. Fed-
eral Union Life Ins. Co., 251 Ky. 570, 65 S.W.2d 680, 681.
Car Load
The quantity usually contained in an ordinary
car used for transporting the particular commodi-
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CARE
ty involved. Ward v. Cotton Seed Products Co.,
193 Ala. 101, 69 So. 514, 515.
General Service Cars
Cars serviceable as flat or gondola cars and also
as dump cars. National Dump Car Co. v. Pullman
Co., C.C.A.Ill., 228 F. 122, 124.
CAR TRUST CERTIFICATES, OR SECURITIES.
A class of investment securities based upon the
conditional sale or hire of railroad cars or locomo-
tives with a reservation of title or lien in the ven-
dor or bailor until the property is paid for. See
Fidelity Trust Co. v. Lederer, D.C.Pa., 276 F. 51;
Commonwealth v. Philadelphia Rapid Transit Co.,
287 Pa. 190, 134 A. 455.
CARABUS. In old English law. A kind of raft
or boat. Spelman.
CARAT. A measure of weight for diamonds and
other precious stones, equivalent to three and one-
sixth grains Troy, though divided by jewelers into
four parts called "diamond grains." Also a stand-
ard of fineness of gold, twenty-four carats being
conventionally taken as expressing absolute puri-
ty, and the proportion of gold to alloy in a mix-
ture being represented as so many carats.
CARBON COPY. A copy, as of a letter, produced
by placing a sheet of carbon paper between two
sheets of letter paper, so that the same impres-
sion produces both the letter and the carbon copy.
Engles v. Blocker, 127 Ark. 385, 192 S.W. 193, 195.
See, also, Copy.
CARBONIC ACID, See Choke damp.
CARCAN. In French law. An instrument of
punishment, somewhat resembling a pillory. It
sometimes signifies the punishment itself. Biret,
Vocab.
CARCANUM. A gaol; a prison.
CARCARE. In old English law. To load; to load
a vessel; to freight.
CARCATUS. Loaded; freighted, as a ship.
CARCEL-AGE. Gaol-dues; prison-fees.
CARCER. A prison or gaol. Strictly, a place of
detention and safe-keeping, and not of punishment.
Co.Litt. 620.
CARCER AD HOMINES CUSTODIENDOS, NON
AD PUNIENDOS, DARI DEBET. A prison
should be used for keeping persons, not for pun-
ishing them. Co.Litt. 260a. See Dig. 48. 19. 8. 9.
CARCER NON SUPPLICII CAUSÄ, SED CUSTO-
DLzE  A prison is ordained not
for the sake of punishment, but of detention and
guarding. Lofft, 119.
CARDINAL. In ecclesiastical law. A dignitary
of the court of Rome, next in rank to the pope.
There are cardinal bishops, cardinal priests, and
cardinal deacons. See Fleury, Hist. Eccles. liv.
xxxv. n. 17, li. n. 19; Thomassin, part. ii. liv. i.
c. 53, part. iv. liv. i. cc. 79, 80; Loiseau, Traite
des Ordres, c. 3, n. 31; Andre Droit Canon.
CARDS. In criminal law. Small papers or paste-
boards of an oblong or rectangular shape, on
which are printed figures or points, used in play-
ing certain games. See State v. Lewis, 12 Wis.
434.
CARE. Attention, Seaman v. State, 106 Ohio St.
177, 140 N.E. 108, 111, Lustenberger v. Boston Cas-
ualty Co., Mass., 14 N.E.2d 148, 151, 115 A.L.R.
1055; charge, Emery v. Wheeler, 152 A. 624, 626,
129 Me. 428, Lustenberger v. Boston Casualty Co.,
Mass., 14 N.E.2d 148, 151, 115 A.L.R. 1055; custody,
Madison v. State, 163 Tenn. 198, 42 S.W.2d 209, Fox
West Coast Theatres v. Union Indemnity Co., 167
Wash. 319, 9 P.2d 78, 81; diligence; discretion;
heed, caution, concern, Northern Indiana Power
Co. v. West, 218 Ind. 321, 32 N.E.2d 713, 720; in-
clination, wish or disposition, Stella v. Downy-
flake Restaurant, 126 Conn. 441, 11 A.2d 848, 849;
maintenance, Stafford v. Stovall, 109 Okl. 234, 235
P. 238, 239; management, Seaman v. State, 106
Ohio St. 177, 140 N.E. 108, 111; opposite of negli-
gence or carelessness, Raymond v. Portland R.
Co., 100 Me. 529, 62 A. 602, 605, 3 L.R.A.,N.S., 94;
oversight, Emery v. Wheeler, 129 Me. 428, 152 A.
624, 626, Madison v. State, 163 Tenn. 198, 42 S.W.2d
209; prudence, Quanah, A. & P. Ry. Co. v. Eblen,
Tex.Civ.App., 55 S.W.2d 1060, 1063; regard, Lus-
tenberger v. Boston Casualty Co., Mass., 14 N.E.2d
148, 151, 115 A.L.R. 1055, Arnold v. United States,
C.C.A.Colo., 94 F.2d 499, 505; safekeeping, preser-
vation, security, Fox West Coast Theatres v.
Union Indemnity Co., 167 Wash. 319, 9 P.2d 78, 81;
to cause to have care; to trouble; to care for;
to regard. Arnold v. United States, C.C.A.Colo.,
94 F.2d 499, 505; vigilance; watchfulness.
There are three degrees of care which are frequently rec-
ognized, corresponding (inversely) to the three degrees of
negligence, viz. : slight care, ordinary care, and great
care.
Slight care is such as persons of ordinary prudence usu-
ally exercise about their own affairs of slight importance.
25 Okl.St.Ann. § 4. Or it is that degree of care which a
person exercises about his own concerns, though he may be
a person of less than common prudence or of careless and
inattentive disposition. Litchfield v. White, 7 N.Y. 442,
57 Am.Dec. 534; Bank v. Guilmartin, 93 Ga. 503, 21 S.E.
55, 44 Arn.St.Rep. 182.
Ordinary care is that degree of care which persons of
ordinary care and prudence are accustomed to use and em-
ploy, under the same or similar circumstances. Gunn v.
Railroad Co., 36 W.Va. 165, 14 S.E. 465, 32 Am.St.Rep.
842; Railroad Co. v. Howard, 79 Ga. 44, 3 S.E. 426; Liston
v. Reynolds, 69 Mont. 480, 223 P. 507, 509; Pauls Valley
Compress & Storage Co. v. Harris, 62 Okl. 103, 162 P. 216,
218. Or it is that degree of care which may reasonably be
expected from a person in the party's situation, that is,
reasonable care. Neal v. Gillett, 1855, 23 Conn. 443.
Reasonable care is such a degree of care, precaution, or
diligence as may fairly and properly be expected or re-
quired, having regard to the nature of the action, or of
the subject-matter, and the circumstances surrounding the
transaction. See Johnson v. Hudson River R. Co., 6 Duer,
N.Y., 646; Appel v. Eaton & Price Co., 97 Mo.App. 428, 71
S.W. 741; Illinois Cent. R. Co. v. Noble, 142 Ill. 578, 32 N.
E. 684. It is such care as an ordinarily prudent person
would exercise under the conditions existing at the time
he is called upon to act. Midland Valley R. Co. v. Bell,
C.C.A.Okl., 242 F. 803, 808; Loverage v. Carmichael, 164
Minn. 76, 204 N.W. 921, 922. Substantially synonymous
with ordinary or due care. Kucera v. Grigsby, 24 Ohio
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CARE
App. 457, 156 N.E. 249, 250; Wiley v. Rutland R. Co., 86
Vt. 504, 86 A. 808, 811.
Great care is such as persons of ordinary prudence usu-
ally exercise about affairs of their own which are of great
importance; or it is that degree of care usually bestowed
upon the matter in hand by the most competent, prudent,
and careful persons having to do with the particular sub-
ject. Railway Co. v. Smith, 87 Tex. 348, 28 S.W. 520;
Telegraph Co. v. Cook, Cal., 61 F. 628, 9 C.C.A. 680.
A high degree of care is not the legal equivalent of rea-
sonable care. Gallatty v. Central R. of New Jersey, 86
N.J.Law, 416, 92 A. 279, 280. It is that degree of care
which a very cautious, careful, and prudent person would
exercise under the same or similar circumstances. Bryn-
ing v. Missouri, K. & T. Ry. Co. of Texas, Tex.Civ.App.,
167 S.W. 826, 827; a degree of care commensurate with
the risk of danger. New Jersey Fidelity & Plate Glass Ins.
Co. v. Lehigh Va:ley R. Co., 92 N.J.Law, 467, 105 A. 206,
207.
Highest degree of care and utmost degree of care have
substantially the same meaning. Brogan v. Union Traction
Co., 76 W.Va. 698, 86 S.E. 753, 756. "Highest degree of
care" only requires the care and skill exacted of persons
engaged in the same or similar business. Birmingham Ry..,
Light & Power Co. v. Cockrell, 10 Ala.App. 578, 65 So. 704.
It means the highest degree required by law where human
safety is at stake, and the highest degree known to the
usage and practice of very careful, skillful, and diligent
persons engaged in the same business by similar means or
agencies. Birmingham Ry., Light & Power Co. v. Barrett,
179 Ala. 274, 60 So. 262, 264.
This division into three degrees of care, however, does
not command universal assent. Raymond v. Portland R.
Co., 100 Me. 529, 62 A. 602, 605, 3 L.R.A.,N.S., 94; Porn-
roy v. Bangor & Aroostook R. Co., 102 Me. 497, 67 A. 561,
562.
CARELESS. Synonymous with "negligent," the
latter being probably the better word in pleadings.
Delmore v. Kansas City Hardwood Flooring Co.,
90 Kan. 29, 133 P. 151, 47 L.R.A.,N.S., 1220. Ab-
sence of ordinary or proper care, Pelfrey v. Com-
monwealth, 247 Ky. 484, 57 S.W.2d 474. Reckless,
Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573, 577.
CARELESSLY. Without care. Seago v. Paul
Jones Realty Co., 185 Mo.App. 292, 170 S.W. 372,
373. Negligently; denoting the absence of ordi-
nary care. Jones v. Commonwealth, 213 Ky. 356,
281 S.W. 164, 167.
CARENA. A term used in the old ecclesiastical
law to denote a period of forty days.
CARENCE. In French law. Lack of assets; in-
solvency.
A procês-verbal de carence is a document setting out
that the huissier attended to issue execution upon a judg-
ment, but found nothing upon which to levy. Arg.Fr.
Merc.Law, 547.
CARETA (spelled, also, Carreta and Carecta). A
cart; a cart-load.
CARETORIUS, or CARECTARIUS. A carter.
Blount.
CARGA. In Spanish law. An incumbrance; a
charge. White, New Recop. b. 2, tit. 13, c. 2, § 2.
CARGAISON. In French commercial law. Car-
go; lading.
CARGARE. In old English law. To charge.
Spelman.
CARGO. In mercantile law. The load or lading
of a vessel; the goods, merchandise, or whatever
is conveyed in a ship or other merchant vessel.
Seamans v. Loring, 21 Fed.Cas. 920; Thwing v.
Insurance Co., 103 Mass. 401, 4 Am.Rep. 567.
While "cargo" is primarily the load of the ship, it may
have a varying meaning. Pennsylvania Sugar Co. v.
Czarnikow-Rionda Co., C.C.A.Pa., 245 F. 913, 915. The
term may be applied in such a sense as to include passen-
gers, as well as freight, but in a technical sense it desig-
nates goods only. Wolcott v. Eagle Ins. Co., 4 Pick.,
Mass., 429. Thus, we say, A cargo of emigrants. See 7 M.
& G. 729, 744; Davison v. Von Lingen, 113 U.S. 49, 5 S.Ct.
346, 28 L.Ed. 885.
CARIAGIUM. In old English law. Carriage;
the carrying of goods or other things for the king.
CARISTIA. Dearth, scarcity, dearness. Cowell.
CARK. In old English law. A quantity of wool,
whereof thirty make a sarplar. (The latter is
equal to 2,240 pounds in weight.) St. 27 Hen. VI.
c. 2. Jacob.
CARLISLE TABLES. Life and annuity tables,
compiled at Carlisle, England, about 1780. Used
by actuaries, etc.
CARMACK ACT. An act of Congress, June 29,
1906, 49 U.S.C.A. § 20(11, 12), amending the •ep-
burn Act. It supersedes all state regulations;
Chicago, B. & Q. R. Co. v. Miller, 226 U.S. 513, 33
S.Ct. 155, 57 L.Ed. 323.
CARMEN. In the Roman law. Literally, a verse
or song. A formula or form of words used on
various occasions, as of divorce. Tayl.Civil Law,
349.
CARNAL. Pertaining to the body, its passions
and its appetites; animal; fleshly; sensual; im-
pure; sexual. People v. Battilana, 52 Cal.App.2d
685, 126 P.2d 923, 928.
CARNAL ABUSE. An act of debauchery of the
female sexual organs by those of the male which
does not amount to penetration;—the offense com-
monly called statutory rape consists of carnal
abuse. State v. Huggins, 84 N.J.Law, 254, 87 A.
630, 633. An injury to the genital organs in an
attempt at carnal knowledge, falling short of
actual penetration. Snyder v. State, 92 Ohio St.
167, 110 N.E. 644, 645. • Carnal knowledge of a
female child of tender age includes abuse. Daw-
kins v. State, 58 Ala. 376, 29 Am.Rep. 754.
CARNAL KNOWLEDGE. Coitus; copulation;
the act of a man in having sexual bodily connec-
tion with a woman; sexual intercourse. State v.
Normandale, 154 La. 523, 97 So. 798, 800; Patton
v. State, 105 Tex.Cr.R. 128, 287 S.W. 51, 52. There
is "carnal knowledge" if there is the slightest pen-
etration of the sexual organ of the female by the
sexual prgan of the male. It is not necessary
that the vagina be entered or that the hymen be
ruptured; the entering of the vulva or labia is suf-
ficient. State v. Huggins, 84 N.J.Law, 254, 87 A.
630, 633.
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CARRY
CARNALITER. In old criminal law. Carnally.
Carnalitvr cognovit, carnally knew. Technical
words in indictments for rape, and held essential.
1 Hale, P.C. 637-639.
CARNALLY KNEW. In pleading. A technical
phrase in an indictment to charge the defendant
with the crime of rape. Some authorities suggest
that the words "carnally knew" are included in
the term "rapuit" and are therefore unnecessary;
2 Hawk.P.C. c. 25, § 56; 2 Stark.Cr.P1. 431, n. (e),
at least in states in which the statutes do not des-
ignate the crime by the words "did ravish and
carnally know"; 1 Hale, P.C. 628, 632; 3 Russell,
Cr. (6th ed.) 230. See Noble v. State, 22 Ohio St.
545; Dawkins v. State, 58 Ala. 378, 29 Am.Rep.
754.
CARNO. In old English law. An immunity or
privilege. Cowell.
CAROOME. In English law. A license by the
lord mayor of London to keep a cart.
CARPEMEALS. Cloth made in the northern
parts of England, of a coarse kind, mentioned in
7 Jac. I. c. 16. Jacob.
CARRERA. In Spanish law. A carriage-way; the
right of a carriage-way. Las Partidas, pt. 3, tit.
31, 1. 3.
CARRIAGE. A vehicle used especially for the
transportation of persons either for pleasure or
business, and drawn by horses or other draught
animals over the ordinary streets and highways of
the country; not including cars used exclusively
upon railroads or street railroads expressly con-
structed for the use of such cars. Snyder v.
North Lawrence, 8 Kan. 84; Cream City R. Co. v.
Chicago, etc., R. Co., 63 Wis. 93, 23 N.W. 425, 53
Am.Rep. 267.
The act of carrying, or a contract for transporta-
tion of persons or goods.
As used in exemption statutes, includes an automobile,
Patten v. Sturgeon, C.C.A.Okl., 214 F. 65, 67, Hammond
v. Pickett, Tex.Civ.App., 158 S.W. 174. 175, and it includes
motor vehicles under various other circumstances. Ansell
v. City of Boston, 254 Mass. 208, 150 N.E. 167, 168; State
v. Jarvis, 89 Vt. 239, 95 A. 541, 543.
In admiralty, "carriage" includes ability to lift a cargo
and hold it afloat, and does not necessarily involve any
translation of the vessel from one place to another. The
Jungshoved, D.C.N.Y., 272 F. 122, 124.
The business of carriage is that arising under contracts
by which a person obligates himself, for an agreed price,
to transport, or have transported, an object of some kind,
to a designated place. Kocke v. Gamier, 15 La.App. 461,
131 So. 198, 199.
The contract of carriage is a contract for the conveyance
of property, persons, or messages, from one place to an-
other. Civ.Code Cal. § 2085; Comp.Laws N.D.1913, § 6185;
Comp.Laws S.D.1929, § 1108.
As to "carriage by land or water" within the Illinois
Workmen's Compensation Act, see Stevens v. Illinois Cent.
R. Co., 306 Iii. 370, 137 N.E. 859, 861; Mattoon Clear Water
Co. v. Industrial Commission, 291 Ill. 487, 126 N.E. 168, 169.
CARRICLE, or CARRACLE. A ship of great bur-
den.
CARRIER. One undertaking to transport persons
or property, Windham v. Pace, 192 S.E. 271, 6
S.E.2d 270, 274; or one employed in or engaged
in the business of carrying goods for others for
hire. Roeske v. Lamb, 39 N.M. 111, 41 P.2d 522,
523.
In common speech, "carriers" means transportation sys-
tems as distinguished from corporations owning or operat-
ing them. Virginian Ry. Co. v. Mullens, 271 U.S. 220, 46
S.Ct. 526, 529, 70 L.Ed. 915. And this is its meaning as
used in the Federal Control Act, § 10. Missouri Pac. R.
Co. v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087;
Birmingham Trust & Savings Co. v. Atlanta, B. & A. Ry.
Co., D.C.Ga., 271 F. 731, 739 (Transportation Act). An
electric railway that is part of the "general steam-railroad
system" is a "carrier" subject to the Railway Labor Act,
Sprague v. Woll, C.C.A.I11., 124 F.2d 767, 769.
A school bus acts as a "carrier." Leach v. School Dist.
No. 322 of Thurston County, 197 Wash. 384, 85 P.2d 666,
667.
Carriers are either common or private. Stand-
ard Oil Co. v. Public Service Commission of Wis-
consin, 217 Wis. 563, 259 N.W. 598.
Common carriers are those that hold themselves out or
undertake to carry persons or goods of all persons indif-
ferently, or of all who choose to employ it, Merchants Par-
cel Delivery v. Pennsylvania Public Utility Commission. 150
Pa.Super. 120, 28 A.2d 340, 344; Burnett v. Riter, Tex.Civ.
App., 276 S.W. 347, 349; or those whose occupation or
business is transportation of persons or things for hire or
reward, In re Rodgers, Neb., 279 N.W. 800, 803, 804.
Common carriers of passengers are those that undertake
to carry all persons indifferently who may apply for pas-
sage, so long as there is room, and there is no legal excuse
for refusal. Lazor v. Banas, 114 Pa.Super. 425, 174 A. 817,
819; Anderson v. Fidelity & Casualty Co. of New York,
100 Misc. 411, 166 N.Y.S. 640, 642.
Private carriers are those who transport or undertake to
transport in a particular instance for hire or reward.
Allen v. Sackrider, 37 N.Y. 341; Columbus-Cincinnati
Trucking Co. v. Public Utilities Commission, 141 Ohio St.
228, 47 N.E.2d 623; 625. 626.
For "Extension", see that title.
CARRIER'S LIEN. The right to hold the con-
signee's cargo until payment is made for the work
of transporting it. Sommers Const. Co. v. At-
lantic Coast Line R. Co., 62 Ga.App. 23, 7 S.E.2d
429, 431.
CARROTED FUR, Fur that has been treated by
a solution of nitrate of mercury, so as to remove
the water-repellant substance covering the fibers,
making them more pliable and more easily to
interlock with other fibers of fur, or of wool. Mat-
teawan Mfg. Co. v. Emmons Bros. Co., C.C.A.
Mass., 253 F. 372, 375.
CARRUCA. See Caruca.
CARRY. To bear, bear about, sustain, transport,
remove, or convey. To have or bear upon or
about one's person, as a watch or weapon;—loco-
motion not being essential. State v. Nieto, 101
Ohio St. 409, 130 N.E. 663, 665. Compare Heaton
v. State, 130 Tenn. 163, 169 S.W. 750. As applied
to insurance, means "possess" or "hold." San
Francisco Realty Co. v. Linnard, 98 Cal.App. 33,
276 P. 368, 370.
CARRY A MEMBER. To pay the assessments
against a sick or indigent member, as of a bene-
ficial association, the payment being made by the
other members or the local lodge or camp on his
behalf. Bennett v. Sovereign Camp, Woodmen of
the World, Tex.Civ.App., 168 S.W. 1023, 1026.
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CARRY AN ELECTION. For a candidate to be
elected, or a measure carried, at an election, he or
it must receive a majority or a plurality of the
legal votes cast. McKinney v. Barker, 180 Ky.
526, 203 S.W. 303, 304, L.R.A.1918E, 581.
CARRY ARMS OR WEAPONS. To wear, bear, or
carry them upon the person or in the, clothing or
in a pocket, for the purpose of use, or for the
purpose of being armed and ready for offensive or
defensive action in case of a conflict with another
person. State v. Carter, 36 Tex. 89; State v. Mur-
ray, 39 Mo.App. 128.
CARRY COSTS. A verdict is said to carry costs
when the party for whom the verdict is given be-
comes entitled to the payment of his costs as in-
cident to such verdict.
CARRY ON TRADE OR BUSINESS. To conduct,
prosecute or continue a particular avocation or
business as a continuous operation or permanent
occupation. The repetition of acts may be suf-
ficient. Lichtenstein v. State, 34 Ga.App. 138, 128
S.E. 704; Ledgerwood v. Dashiell, Tex.Civ.App.,
177 S.W. 1010, 1012; Martin v. Bankers' Trust Co.,
18 Ariz. 55, 156 P. 87, 90, Ann.Cas.1918E, 1240;
Territory v. Harris, 8 Mont. 140, 19 P. 286; Hutch-
ings v. Burnet, 61 App.D.C. 109, 58 F.2d 514. To
hold one's self out to others as engaged in the
selling of goods or services. Helvering v. High-
land, C.C.A.4, 124 F.2d 556, 561.
CARRY PASSENGERS FOR A CONSIDERA-
TION. Transportation of persons under such
conditions that operator owes them duty of car-
rier for hire. Cartos v. Hartford Accident & In-
demnity Co., 160 Va. 505, 169 S.E. 594, 597.
CARRY STOCK. To provide funds or credit for
its payment for the period agreed upon from the
date of purchase. Saltus v. Genin, 16 N.Y.Super.
Ct. 260. And see Pickering v. Demerritt, 100
Mass. 421.
CARRY THE IRON. See Fire Ordeal under the
title Ordeal.
CARRYING AWAY. In criminal law. The act of
removal or asportation, by which the crime of
larceny is completed, and which is essential to con-
stitute it. Gettinger v. State, 13 Neb. 308, 14 N.W.
403.
CART. In its ordinary and primary acceptation, a
carriage with two wheels; yet it may mean a
carriage in general, Favers v. Glass, 22 Ala. 624,
58 Am.Dec. 272; but not an automobile, Whitney
v. Welnitz, 153 Minn. 162, 190 N.W. 57, 28 A.L.R.
68. The vehicle in which criminals are taken to
execution.
CART BOTE. Wood or timber which a tenant is
allowed by law to take from an estate, for the
purpose of repairing instruments, (including nec-
essary vehicles,) of husbandry. 2 Bl.Comm. 35.
See Bote.
CARTA.
In old English law. A charter, or deed. Any
written instrument.
In Spanish law. A letter; a deed; a power of
attorney. Las Partidas, pt. 3, tit. 18, 1. 30.
CARTA MERCATORIA. A grant (1303) to cer-
tain foreign merchants, in return for custom du-
ties, of freedom to deal wholesale in all cities and
towns of England, power to export their mer-
chandise, and liberty to dwell where they pleased,
together with other rights pertaining to speedy
justice; 1 Holdsw.Hist.E.L. 311.
CARTE. In French marine law. A chart.
CARTE BLANCHE. A white sheet of paper; an
instrument signed, but otherwise left blank. A.
sheet given to an agent, with the principal's sig-
nature appended, to be filled up with any contract
or engagement as the agent may see fit. Hence,
metaphorically, unlimited authority.
CARTEL.
In Trade and Commerce
A combination of producers of any product
joined together to control its production, sale, and
price, and to obtain a monopoly in any particular
industry or commodity. Also, an association by
agreement of companies or sections of companies
having common interests, designed to prevent ex-
treme or unfair competition and allocate mar-
kets, and to promote the interchange of knowl-
edge resulting from scientific and technical re-
search, exchange of patent rights, and standardiza-
tion of products. U. S. v. National Lead Co., D.C.
N.Y., 63 F.Supp. 513.
State of War
An agreement between two hostile powers for
the delivery of prisoners or deserters, or authoriz-
ing certain non-hostile intercourse between each
other which would otherwise be prevented by the
state of war; for example, agreements for inter-
communication by post, telegraph, telephone, rail-
way. II Op. 282.
Duel
A written challenge to a duel.
CARTULARY. A place where papers or records
are kept.
In the plural: Ancient English records containing docu-
ments and legal proceedings—the muniments of title of
the great landowners, and other miscellaneous documents.
2 Holdsw.Hist.E.L. 273. See 1 Poll. & Maid. p. xxii.
CARUCA, or CARUA. A plow. A four-wheeled
carriage. A team for a plow, or four oxen
abreast. See Carucata.
CARUCAGE. In old English law. A kind of tax
or tribute anciently imposed upon every plow,
(carue or plow-land,) for the public service. Spel-
man. The act of plowing.
CARUCATA, CARUCATE. A certain quantity of
land used as the basis for taxation. A cartload.
As much land as may be tilled by a single plow in
a year and a day. Skene, de verb, sig. A plow
land of one hundred acres. Ken. Gloss. The
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quantity varies in different counties from sixty to
one hundred and twenty acres. Whart. See Lit-
tleton, Ten. cclxii; 2 Holdsw.Hist.E.L. 56; Maitl.
Domesday Book and Beyond 395; 1 L.J.R. 96.
Also, a team of cattle, or a cart-load. See Bovata
terra.
CARUCATARIUS. One who held lands in carv-
age, or plow-tenure. Cowell.
CARUE. A carve of land; plow-land. Britt. c. 84.
CARVAGE. The same as carucage, (q. v.) Cow-
ell.
CARVE. In old English law. A carucate or
plow-land.
CAS FORTUIT. Fr. In the law of insurance. A
fortuitous event; an inevitable accident.
CASATA. In old English law. A house with land
sufficient for the support of one family. Other-
wise called "hida," a hide of land, and by Bede,
"familia." Spelman.
CASATUS. A vassal or feudal tenant possessing
a casata; that is, having a house, household, and
property of his own.
CASE.
Action, Cause, Suit, or Controversy
A general term for an action, cause, suit, or
controversy, at law or in equity; a question con-
tested before a court of justice; an aggregate of
facts which furnishes occasion for the exercise of
the jurisdiction of a court of justice. Quoted with
approval in Kelly v. Roetzel, 64 Okl. 36, 165 P.
1150, 1153. See, also, Gebhard v. Sattler, 40 Iowa,
156; Martin v. Hunter, 1 Wheat. 352, 4 L.Ed. 97.
A controversy that is litigated. City of Akron v.
Roth, 88 Ohio St. 456, 103 N.E. 465, 467. A cause
of action. Strother v. Union Pac. R. Co., D.C.Mo.,
220 F. 731, 732; Colla v. Carmichael U-Drive
Autos, 111 Cal.App. 378, 294 P. 378, 380.
The word "case" or "cause" means a judicial proceeding
for the determination of a controversy between parties
wherein rights are enforced or protected, or wrongs are
prevented or redressed, Ex parte Chesser, 93 Fla. 590, 112
So. 87, 90; any proceeding judicial in its nature, Mc-
Carthy v. Clancy, 110 Conn. 482, 148 A. 551, 557.
Case of actual controversy. The phrase in Federal De-
claratory Judgment Act connotes controversy of justiciable
nature, excluding advisory decree on hypothetical facts.
John P. Agnew & Co., Inc. v. Hoage, App.D.C., 69 App. D.
C. 116, 99 F.2d 349, 351.
Case sufficient to go to a jury. A case that has proceed-
ed upon sufficient proof to that stage where it must be sub-
mitted to jury and not decided against the state as a mat-
ter of law. State v. McDonough, 129 Conn. 483, 29 A.2d
582, 584.
Cases and controversies. This term, as used in the consti-
tution of the United States, embraces claims or contentions
of litigants brought before the court for adjudication by
regular proceedings established for the protection or en-
forcement of rights, or the prevention, redress, or punish-
ment of wrongs; and whenever the claim or contention of
a party takes such a form that the judicial power is cap-
able of acting upon it, it has become a case or controversy.
Interstate Commerce Com'n v. Brimson, 154 U.S. 447, 14
Sup.Ct. 1125, 38 L.Ed. 1047. These two terms are to be
distinguished; for there may be a "separable controversy"
within a "case," which may be removed from a state court
to a federal court, though the case as a whole is not re-
movable. Snow v. Smith, C.C.Va., 88 Fed. 658. The term
"controversies", if distinguishable frofn "cases", is so in
that it is less comprehensive than the term "cases" and
includes only suits of a civil nature, Smith v. Blackwell,
C.C.A.S.C., 115 F.2d 186, 188.
Applications and Special Proceedings
The word "case" may include application for
divorce, applications for the establishment of high-
ways, applications for orders of support of rela-
tives, and other special proceedings unknown to
the common law. S. D. Warren Co. v. Fritz, 138
Me. 279, 25 A.2d 645, 648.
Box or Container
A box or container, as for cans or bottles filled
with milk or other liquid goods. Ex parte Rein-
eger, 184 Cal. 97, 193 P. 81, 83.
Event, Happening, etc.
In ordinary usage, the word "case" means
"event," "happening," "situation," "circumstances."
Highfield v. Delaware Trust Co., Del.Super., 188 A.
919, 922.
Form of Action
A form of action which lies to recover damages
for injuries for which the more ancient forms of
action will not lie. Steph.P1. 15. An abbreviated
form of the title "trespass on the case," q. v.
Munal v. Brown, C.C.Colo., 70 F. 968. See, also,
Wadleigh v. Katandin Pulp & Paper Co., 116 Me.
107, 100 A. 150, 151. Action where injury is mere-
ly consequential. Mawson v. Vess Beverage Co.,
Mo.App., 173 S.W.2d 606, 612, 613.
Grand Jury Inquiry
As used in statute authorizing a challenge to
an individual grand juror, any matter that
might become subject of inquiry by grand jury.
People v. Prior, 268 App.Div. 717, 54 N.Y.S.2d 150,
153.
Statement of Facts
A statement of the facts involved in a transac-
tion or series of transactions, drawn up in writing
in a technical form, for submission to a court or
judge for decision or opinion. Under this meaning
of the term are included a "case made" for a mo-
tion for new trial, a "case reserved" on the trial
of a cause, an "agreed case" for decision without
trial, etc.
Case agreed on. A formal written enumeration of the
facts in a case, assented to by both parties as correct and
complete, and submitted to the court by their agreement,
in order that a decision may be rendered without a trial,
upon the court's conclusions of law upon the facts as stat-
ed.
Case for motion. In English divorce and probate practice,
when a party desires to make a motion, he must file,
among other papers, a case for motion, containing an ab-
stract of the proceedings in the suit or action, a statement
of the circumstances on which the motion is founded, and
the prayer or nature of the decree or order desired.
Browne, Div. 251; Browne, Prob.Pr. 295.
Case-made. A statement of facts in relation to a disputed
point of law, agreed to by both parties and submitted to
the court without a preceding action. This is found only
in the Code states. See De Armond v. Whitaker, 99 Ala.
252, 13 So. 613; A complete record of each successive ac-
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tion of the trial court at the trial, including testimony.
In re Opinion of the Judges, 29 Okl.Cr. 27, 232 P. 121, 122.
A "case-made" consists of those things which transpired in
court during the trial, and which are not a part of the
record. Jones v. State, 9 Okl.Cr. 189, 130 P. 1178.
Case on appeal. In American practice. Before the argu-
ment in the appellate court of a case brought there for re-
view, the appellant's counsel prepares a document or brief,
bearing this name, for the information of the court, de-
tailing the testimony and the proceedings below. In Eng-
lish practice. The "case on appeal" is a printed statement
prepared by each of the parties to an appeal to the house
of lords or the privy council, setting out methodically the
facts which make up his case, with appropriate references
to the evidence printed in the "appendix.' The term also
denotes a written statement, prepared and transmitted by
an inferior court or judge raising a question of law for
the opinion of a superior court.
Case reserved. A statement in writing of the facts proved
on the trial of a cause, drawn up and settled by the at-
torneys and counsel for the respective parties under the
supervision of the judge, for the purpose of having certain
points of law, which arose at the trial and could not then
be satisfactorily decided, determined upon full argument
before the court in Banc. This is otherwise called a "spe-
cial case ;" and it is usual for the parties, where the law of
the case is doubtful, to agree that the jury shall find a
general verdict for the plaintiff, subject to the opinion of
the court upon such a case to be made, instead of obtain-
ing from the jury a special verdict. 3 Bl.Comm. 378; 3
Steph.Comm. 621; Steph.Pl. 92, 93; 1 Burrill, Pr. 242, 463.
Case stated. In practice. An agreement in writing, be-
tween a plaintiff and defendant, that the facts in dispute
between them are as therein agreed upon and set forth.
3 Sharsw.Bla.Comm. 453, n. ; 6 Term, 313. A case agreed
upon. A statement of all the facts of a case, with the names
of the witnesses, and a detail of the documents which are
to support them. A statement of agreed facts. Caissie v.
City of Cambridge, 317 Mass. 346, 58 N.E.2d 169. An au-
ditor's report. Hanifin v. C. & R. Const. Co., 313 Mass.
651, 48 N.E.2d 913, 918. A brief. As to the distinction be-
tween submission on a case stated and a submission merely
on agreed facts, see Frati v. Jannini, 226 Mass. 430, 115
N.E. 746_747.
Case to move for new trial. In practice. A case prepared
by the party against whom a verdict has been given, upon
which to move the court to set aside the verdict and grant
a new trial.
Supplementary Proceedings
The word "cases" in section providing that "act
shall apply in all cases now pending or hereafter
instituted in which the final decree of divorce was
recorded prior to the effective date of this act", is
synonym of "supplementary proceedings". Chia-
petta v. Jordan, 16 So.2d 641, 644, 153 Fla. 788.
CASE LAW. The aggregate of reported cases as
forming a body of jurisprudence, or the law of a
particular subject as evidenced or formed by the
adjudged cases, in distinction to statutes and other
sources of law.
CASE SYSTEM. A method of teaching or study-
ing the science of the law by a study of the cases
historically, or by the inductive method. It was
introduced in the Law School of Harvard Univer-
sity in 1869-70 by Christopher C. Langdell, Dane
Professor of Law.
CASEMENT. A window sash opening on hinges
affixed to the upright side of the frame, and in-
cludes wooden as well as steel construction. John-
son Metal Products Co. v. Lundell-Eckberg Mfg.
Co., D.C.N.Y., 18 F.Supp. 572, 574.
CASH. Money or its equivalent; usually ready
money. Kerlin v. Young, 159 Ga. 95, 125 S.E. 204,
207; Britain v. Rice, Tex.Civ.App., 204 S.W. 254,
256.
Money in hand, either in current coin or other legal ten-
der, or in bank bills or checks paid and received as money.
Dunlap v. Whitmer, 133 La. 317, 62 So. 938, 943, Ann.Cas.
1915C, 990. Bank deposits, In re Feist's Will, 170 Misc. 497,
10 N.Y.S.2d 506, 508; Lane v. Railey, 280 Ky. 319, 133 S.
W.2d 74, 79, 80. Bank notes or sight drafts, Lane v. Rai-
ley, 280 Ky. 319, 133 S.W.2d 74, 79, 80. Bank's deposit
certificate. Bingham v. Montcalm County, 251 Mich. 651,
232 N.W. 348, check, Van Decar v. Streeter, 136 Misc. 206,
240 N.Y.S. 492, 497. Commercial paper. Commercial Credit
Corporation v. Third & Lafayette Streets Garage, 131 Misc.
786, 228 N.Y.S. 166, 168. Currency, coin, specie. Lane v.
Railey, 280 Ky. 319, 133 S.W.2d 74, 79, 80. Whatever can
be used as money without being converted into another
form. That which circulates as money, including bank
bills. Hooper v. Flood, 54 Cal. 221; Dazel v. Landry, 21
Nev. 291, 30 Pac. 1064; United States v. Williams, D.C.
Wash., 282 F. 324, 325. The term may include currency,
municipal orders, warrants, or scrip. Arkansas Public
Utilities Co. v. Incorporated Town of Heber Springs, 151
Ark. 249, 235 S.W. 999, 1001. It is frequently used as an
antonym of "credit." Parrish v. American Ry. Employees'
Pub. Corporation, 83 Cal.App. 298, 256 P. 590, 591; State v.
Woodward, 208 Ala. 31, 93 So. 826.
CASH ACCOUNT. A record, in bookkeeping, of
all cash transactions; an account of moneys re-
ceived and expended.
CASH BOOK. In bookkeeping, an account book
in which is kept a record of all cash transactions,
or all cash received and expended.
The object of the cash book is to afford a constant facili-
ty to ascertain the true state of a man's cash. Pardessus,
n. 87.
CASH CONTRACT. A "cash contract," as of a
municipal corporation, is one not creating a debt
within the constitution. Jeffersonville v. Cotton
State Belting Supply Co., 30 Ga.App. 470, 118 S.
E. 442.
CASH DISCOUNT. A deduction from billed price
which seller allows for payment within a certain
time. Leonard v. U. S., Ct.C1., 7 F.Supp. 295,
297.
CASH MARKET VALUE. "Fair market value",
"reasonable market value" or "fair cash market
value" as synonymous. Housing Authority of
Birmingham Dist. v. Title , Guarantee Loan &
Trust Co., 243 Ala. 157, 8 So.2d 835, 837. For "Fair
Cash Market Value," see that title.
CASH NOTE. In England. A bank-note of a
provincial bank or of the Bank of England.
CASH PRICE. A price payable in cash at the
time of sale of property, in opposition to a barter
or a sale on credit.
CASH SALE. A sale for money in hand. Steward
v. Scudder, 24 N.J.Law, 101; Bass v. Green &
Yates, 201 Ala. 515, 78 So. 869. A sale conditioned
on payment concurrent with delivery. Weyer-
haeuser Timber Co. v. First Nat. Bank, 150 Or.
172, 43 P.2d 1078, 1081. See, further, Sale.
CASH SURRENDER VALUE. The "cash sur-
render value" of a life policy is the reserve less a
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surrender charge. Guggenheim v. Rasquin, U.S.
N.Y., 312 U.S. 254, 61 S.Ct. 507, 508, 85 L.Ed. 813.
CASH VALUE. The cash value of an article or
piece of property is the price which it would bring
at private sale (as distinguished from a forced or
auction sale) the terms of sale requiring the pay-
ment of the whole price in ready money, with no
deferred payments. Tax Com'rs v. Holliday, 150
Ind. 216, 49 N.E. 14, 42 L.R.A. 826; Cummings v.
Bank, 101 U.S. 162, 25 L.Ed. 903. For "Fair Cash
Value," see that title.
Actual value or market value, Fort Worth &
D. N. Ry. Co. v. Sugg, Tex.Civ.App., 68 S.W.2d
570, 572; Yeoman Mut. Life Ins. Co. v. State
Board of Assessment, 229 Iowa 220, 294 N.W. 330,
334. Clear market value or fair market value. In
re Ryerson's Estate, 239 Wis. 120, 300 N.W. 782,
784. Price property will bring on sale by one de-
siring, but not compelled, to sell to one desiring,
but not compelled, to purchase. Insurance Co. of
North America v. McGraw, 255 Ky. 839, 75 S.W.2d
518, 520. Saleable value, In re Lang Body Co., C.C.
A.Ohio, 92 F.2d 338, 340. Usual selling price at
private sale and not at a forced or auction sale.
Volunteer State Life Ins. Co. v. Union Title Guar-
antee Co., 175 La. 183, 143 So. 43, value at which
property would be taken in payment of just debt
from solvent debtor. Bank of Fairfield v. Spokane
County, 173 Wash. 145, 22 P.2d 646, 652.
CASHIER, v. In military law. To deprive a mili-
tary officer of his rank and office.
CASHIER, n. An officer of a moneyed institu-
tion, or commercial house, or bank, who is in-
trusted with, and whose duty it is to take care
of, the cash or money of such institution or bank.
A custodian of the money of a bank, mercantile
house, and the like. Miller v. State, 88 Tex.Cr.
R. 69, 225 S.W. 379, 381, 12 A.L.R. 597.
The cashier of a bank is its chief executive officer. Pem-
Iscot County Bank v. Central-State Nat. Bank, 132 Tenn. '
152, 177 S.W. 74, 75; Bank of Commerce of Chanute v.
Sams, 96 Kan. 437, 152 P. 28, 29. He is its chief financial!
agent, through whom its principal financial dealings are
conducted; Brown v. Mt. Holly Nat. Bank, 288 Pa. 478)
136 A. 773, 775; and is peculiarly that agency authorized
to make loans and collections, whose special duty it is to
give direction to and further the stockholders' interests;
People's Bank of Calhoun v. Harry L. Winter, Inc., 161
Ga. 898, 132 S.E. 422, 424.
He receives and pays out its moneys, collects and pays
its debts, and receives and transfers its commercial securi-
ties. Tellers and other subordinate officers may be appoint-
ed, but they are under his direction, and are, as it were,
the arms by which designated portions of his various func-
tions are discharged. Merchants' Nat. Bank v. State Nat.
Bank, 10 Wall. 650, 19 L.Ed. 1008.
CASHIERED. Dismissal with ignominy or dis-
honor, or in disgrace. Metropolis Co. v. Croasdell,
145 Fla. 455, 199 So. 568, 569.
CASHIER'S CHECK. See Check.
CASHLITE. An amercement or fine; a mulct.
CASING—HEAD GAS. Natural gas from an oil
well, saturated with oil vapors or gasoline. 58
C.J.S. p. 26.
Black's Law Dictionary Revised 4th Ed.-18
—Casing-head gasoline. Sometimes called natur-
al gasoline. It is produced from casing-head gas
by compression or separation of the gases which
come from oil wells. 58 C.J.S. p. 21.
CASKET. In one sense, a coffin. Ware v. State,
31 Ga.App. 554, 121 S.E. 251.
CASSARE. To quash; to render void; to break.
Du Cange.
CASSATION. In French law. Annulling; re-
versal; breaking the force and validity of a judg-
ment. A decision emanating from the sovereign
authority, by which a decree or judgment in the
court of last resort is broken or annulled. Merl.
Repert.
CASSATION, COURT OF. (Fr. tour de cassa-
tion.)  The highest court in France; so termed
from possessing the power to quash (casser)
the decrees of inferior courts. It is a court of ap-
peal in criminal as well as civil cases.
CASSETUR BILLA. (Lat. That the bill be
quashed.) In practice. The form of the judg-
ment for the defendant on a plea in abatement,
where the action was commenced by bill, (billa.)
3 Bl.Comm. 303; Steph.Pl. 128, 131. The form of
an entry made by a plaintiff on the record, after a
plea in abatement, where he found that the plea
could not be confessed and avoided, nor traversed,
nor demurred to; amounting in fact to a discon-
tinuance of the action. 2 Archb.Pr.K.B. 3, 236; 1
Tidd, Pr. 683.
CASSETUR BREVE. (Lat. That the writ be
quashed.) In practice. The form of the judg-
ment for the defendant on a plea in abatement,
where the action was commenced by original writ
(breve). 3 Bl.Comm. 303; Steph.Pl. 107, 109.
A judgment sometimes entered against a plain-
tiff at his request when, in consequence of allega-
tions of the defendant, he can no longer prosecute
his suit with effect. 5 Term 634.
CASSOCK, or CASSULA. A garment worn by a
priest.
CAST, v. In old English practice. To allege,
offer, or present; to proffer by way of excuse (as
to "cast an essoin").
This word is now used as a popular, rather
than a technical, term, in the sense of to over-
come, overthrow, or defeat in a civil action at law.
It also means to deposit formally or officially.
Maddox v. Board of State Canvassers, Mont., 149
P.2d 112, 115; Port of Palm Beach Dist. v. State,
156 Fla. 99, 22 So.2d 581, 582. It is also used in
connection with the imposition upon a party liti-
gant of costs in the suit: as, A. is "cast" for the
costs of the case.
CAST AWAY. To cast away a ship is to do such
an act upon or in regard to it as causes it to
perish or be lost, so as to be irrecoverable by ordi-
nary means. The term is synonymous with "de-
stroy," which means to unfit a vessel for service
beyond the hope of recovery by ordinary means.
U. S. v. Vanranst, 28 Fed.Cas. 360.
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CASTEL
CASTEL, or CASTLE. A fortress in a town; the
principal mansion of a nobleman. 3 Inst. 31.
CASTELLAIN. In old English law. The lord,
owner, or captain of a castle; the constable of a
fortified house; a person having the custody of
one of the crown mansions; an officer of the
forest.
CASTELLANUS. A castellain; the keeper or con-
stable of a castle. Spelman.
CASTELLARIUM, CASTELLATUS. In old Eng-
lish law. The precinct or jurisdiction of a castle.
Blount.
CASTELLORUM OPERATIO. In Saxon and old
English law. Castle work. Service and labor done
by inferior tenants for the building and upholding
of castles and public places of defense. One of the
three necessary charges, (trinoda necessitas,) to
which all lands among the Saxons were expressly
subject. Cowell. Towards this some gave their
personal service, and others, a contribution of
money or goods. 1 Bla.Comm. 263.
CASTIGATORY. An engine used to punish wom-
en who have been convicted of being common
scolds. It is sometimes called the trebucket, tum-
brel, ducking-stool, or cucking-stool. U. S. v.
Royall, 27 Fed.Cas. 907.
CASTING VOTE. Where the votes of a delibera-
tive assembly or legislative body are equally divid-
ed on any question or motion, it is the privilege
of the presiding officer to cast one vote (if other-
wise he would not be entitled to any vote) on
either side, or to cast one additional vote, if he has
already voted as a member of the body. This is
called the "casting vote." Brown v. Foster, 88 Me.
49, 33 A. 662, 31 L.R.A. 116.
CASTLEGUARD. In feudal law. An imposition
anciently laid upon such persons as lived within a
certain distance of any castle, towards the main-
tenance of such as watched and warded the castle.
CASTLEGUARD RENTS. In old English law.
Rents paid by those that dwelt within the pre-
cincts of a castle, towards the maintenance of such
as watched and warded it.
CASTRENSIS. In the Roman law. Relating to
the camp or military service.
Castrense peculium, a portion of property which
a son acquired in war, or from his connection
with the camp. Dig. 49, 17.
CASTRUM. Lat.
In Roman law. A camp.
In old English law. A castle. Bract. fol. 69b.
A castle, including a manor. 4 Coke, 88.
CASU CONSIMILI. In old English law. A writ
of entry, granted where tenant by the curtesy, or
tenant for life, alienated in fee, or in tail, or for
another's life, which was brought by him in rever-
sion against the party to whom such tenant so
alienated to his prejudice, and in the tenant's life-
time. Termes de la Ley. See Consimili C.asu.
CASU PROVISO. Lat. In the case provided for.
A writ of entry framed under the provisions of the
statute of Gloucester (6 Edw. I.) c. 7, which lay for
the benefit of the reversioner when a tenant in
dower aliened in fee or for life.
CASUAL. Accidental, Gray v. Greenwood, 32 A.
2d 347, 350, 21 N.J.Misc. 137; Texas & N. 0. R.
Co. v. Owens, Tex.Civ.App., 54 S.W.2d 848, 853;
Sonnenberg v. Berg's Market, 227 Mo.App. 391, 55
S.W.2d 494; by chance, Texas & N. 0. R. Co. v.
Owens, Tex.Civ.App., 54 S.W.2d 848, 853; coming
by chance, Lawrenz v. Langford Electric Co., 206
Minn. 315, 288 N.W. 727, 731; Norris v. Koenig,
Mo.App., 183 S.W.2d -160, 162; fortuitous, Sonnen-
berg v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d
494, 495. Happening or coming to pass without
design and without being foreseen or expected.
Root v. Topeka Ry. Co., 96 Kan. 694, 153 P. 550;
Ranson-Rooney Co. v. Overseas Ry., f7 La.App.
205, 134 So. 765, 768; impermanent, Board of
Sup'rs of Amherst County v. Boaz, 176 Va. 126,
10 S.E.2d 498, 500; incidental, Mason v. Wampler,
89 Ind.App. 483, 166 N.E. 885, 886, Coffin v. Hook,
Ind.App., 45 N.E.2d 369, 372; indeterminate, Texas
& N. 0. R. Co. v. Owens, Tex.Civ.App., 54 S.W.2d
848, 853; irregular, Gardner v. Trustees of Main
St. M. E. Church of Ottumwa, 217 Iowa, 1390, 250
N.W. 740; liable to happen, subject to chance or
accident, Coffin v. Hook, 112 Ind.App. 549, 45 N.E.
2d 369, 372; occasional, Cardillo v. Mockabee, 70
App.D.C. 16, 102 F.2d 620, 622; uncertain, Coffin v.
Hook, 112 Ind.App. 549, 45 N.E.2d 369, 372; un-
expected, Gray v. Greenwood, 21 N.J.Misc. 137,
32 A.2d 347, 350; Texas & N. 0. R. Co. v. Owens,
Tex.Civ.App., 54 S.W.2d 848, 853; unforeseen, Tex-
as & N. 0. R. Co. v. Owens, Tex.Civ.App., 54 S.W.
2d 848, 853; Lawrenz v. Langford Electric Co., 206
Minn. 315, 288 N.W. 727, 731; unpremeditated,
Lawrenz v. Langford Electric Co., 206 Minn. 315,
288 N.W. 727, 731; without regularity, Norris v.
Koenig, Mo.App., 183 S.W.2d 160, 162; Sonnenberg
v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d
494.
CASUAL BETTOR. An occasional and irregular
bettor who is not guilty of crime of engaging in
betting and gambling organized and carried on as
a systematic business. Bamman v. Erickson, 288
N.Y. 133, 41 N.E.2d 920, 922.
CASUAL DEFICENCY OF REVENUE. An un-
foreseen or unexpected deficiency, or an insuffi-
ciency of funds to meet some unforeseen and
necessary expense. Atlanta Distributing Termi-
nals v. Board of Com'rs etc., of Fulton County,
177 Ga. 250, 170 S.E. 52, 56.
CASUAL DEFICIT. A deficit happening by chance
or accident and without design. State Budget
Commission v. Lebus, 244 Ky. 700, 51 S.W.2d
965.
CASUAL EJECTOR. In practice. The nominal
defendant in an action of ejectment. French v.
Robb, 67 N.J.Law, 260, 51 A. 509, 57 L.R.A. 956.
CASUAL EMPLOYEE. Though courts have re-
frained from defining "casual employee" as such
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term is used in the Workmen's Compensation Act,
the test in the particular case is whether service
rendered or work done, rather than contract of
hiring, is of casual nature; infrequency of em-
ployment or its duration being immaterial. Hygeia
Ice & Coal Co. v. Schaeffer, 152 Md. 231, 136 A. 548,
551.
As regards whether an employee is a "casual" employee
the word "casual" means something happening without
design and unexpectedly. Ward v. Ocean Forest Club, 188
S.C. 233, 198 S.E. 385.
CASUAL EMPLOYMENT. Employment at uncer-
tain times or irregular intervals. Johnson v. Wis-
consin Lumber & Supply Co., 203 Wis. 304, 234
N.W. 506, 507, 72 A.L.R. 1279; employment by
chance, fortuitously, and for no fixed time, Boyd
v. Philmont Country Club, 129 Pa.Super. 135, 195
A. 156, 157, 158; employment casual and not in
usual course of trade, business, occupation or
profession of employer. Kunkler v. Mauck, 108
Ind.App. 98, 27 N.E.2d 97, 99. Employment for
short time and limited and temporary purpose,
Moore v. Clarke, 171 Md. 39, 187 A. 887, 894, 107
A.L.R. 924; fortuitous and irregular employment.
McCabe v. Timothy Shanahan & Son, 147 Pa.Su-
per. 491, 24 A.2d 16, 18; occasional, irregular or,in-
cidental employment, Maguire v. Valley Forge
Military Academy, 116 Pa.Super. 495, 176 A. 865,
867.
The test is the nature of the work or an analysis
of the contract of employment. State Farm Mut.
Automobile Ins. Co. v. Brooks, D.C.Mo., 43 F.Supp.
870, 872; or whether the employment is necessary
to carry out the employer's business in usual way.
Thompson v. G. Correale & Sons, 130 N.J.L. 431,
33 A.2d 578, 579; or the scope of the contract of
employment or the continuity of employment.
Cochrane v. William Penn Hotel, Hartford Acci-
dent & Indemnity Co., Intervener, 140 Pa.Super.
323, 13 A.2d 875, 877; "Casual" means occasional;
incidental; happening at uncertain times; not
stated or regular; its antonyms being regular;
systematic; periodic; certain, Pooler's Case, 122
Me. 11, 118 A. 590, 591; Dial v. Coleman's Lunch,
217 Iowa, 945, 251 N.W. 33; happening or coming
to pass without design and without being foreseen
or expected, accidental, fortuitous, coming by
chance, coming without regularity, Tokash v. Gen-
eral Baking Co., 349 Mo. 767, 163 S.W.2d 554, 556;
The term refers to nature of employment and not
to length. Parks v. E. M. Carmell Co., 168 Tenn.
385, 79 S.W.2d 285, 287.
CASUAL ,EVIDENCE. A phrase used to denote
all such evidence as happens to be adducible of a
fact or event, but which was not prescribed by
statute or otherwise arranged beforehand to be
the evidence of the fact or event. Brown.
CASUAL PAUPER. A poor person who, in 'Eng-
land, applies for relief in a parish other than that
of his settlement. The ward in the work-house to
which they are admitted is called the "casual
ward."
CASUAL POOR. In English law. Those who are
not settled in a parish. Such poor persons as are
• suddenly taken sick, or meet with some accident,
when away from home, and who are thus provi-
dentially thrown upon the charities of those
among whom they happen to be. Force v. Haines,
17 N.J.Law, 405.
CASUALTY. Accident; event due to sudden, un-
expected or unusual cause; event not to be fore-
seen or guarded against; inevitable accident;
misfortune or mishap; that which comes by
chance or without design. A loss from such an
event or cause; as by fire, shipwreck, lightning,
etc. Story, Bailm. § 240; Gill v. Fugate, 117 Ky.
257, 78 S.W. 191; Farmers Co-op. Soc. No. 1 of
Quanah v. Maryland Casualty Co., Tex.Civ.App.,
135 S.W.2d 1033, 1036; Matheson v. Commissioner
of Internal Revenue, C.C.A., 54 F.2d 537, 539;
Stieffen v. Darling, 158 Va. 375, 163 S.E. 353, 354.
Chance; accident; contingency; also that which
comes without design or without being foreseen.
Bennett v. Howard, 175 Ky. 797, 195 S.W. 117,. 118,
L.R.A.1917E, 1075; United States v. Rogers, C.C.A.
Cal., 120 F.2d 244, 246.
-Casualties of superiority. In Scotch law. Pay-
ments from an inferior to a superior, that is, from
a tenant to his lord, which arise upon uncertain
events, as opposed to the payment of rent at fixed
and stated times. Bell.
-Casualties of wards. In Scotch law. The mails
and duties due to the superior in wardholdings.
CASUS. Lat. Chance; accident; an event; a
case; a case contemplated.
CASUS BELLI. An occurrence giving rise to or
justifying war.
CASUS FEDERIS. In international law. The
case of the treaty. The particular event or situa-
tion contemplated by the treaty, or stipulated for,
or which comes within its terms. Grotius, b. 2, c.
25; Vattel, b. 2, c. 12, § 168; 1 Kent, 49. In com-
mercial law. The case or event contemplated by
the parties to an individual contract or stipulated
for by it, or coming within its terms.
CASUS FORTUITUS. An inevitable accident, a
chance occurrence, or fortuitous event. A loss
happening in spite of all human effort and saga-
city. 3 Kent, Comm. 217, 300; The Majestic, 166
U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039.
CASUS FORTUITUS NON EST SPERANDUS, ET
NEMO TENETUR DEVINARE. A fortuitous
event is not to be expected, and no one is bound to
foresee it. 4 Coke, 66.
CASUS FORTUITUS NON EST SUPPONENDUS.
A fortuitous event is not to be presumed. Hardr.
82, arg.
CASUS MAJOR. In the civil law. A casualty; an
extraordinary casualty, as fire, shipwreck, etc.
Dig. 44, 7, 1, 4.
CASUS OMISSUS. A case omitted; an event or
contingency for which no provision is made; par-
ticularly a case not provided for by the statute
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CASUS
on the general subject, and which is therefore left
to be governed by the common law. .5 Co. 38; 11
East 1; Broom, Max. 46.
CASUS OMISSUS ET OBLIVION! DATUS DIS-
POSITION! JURIS COMMUNIS RELINQUITUR.
A case omitted and given to oblivion (forgotten)
is left to the disposal of the common law. 5 Coke,
38. A particular case, left unprovided for by
statute, must be disposed of according to the law
as it existed prior to such statute. Broom, Max.
46; 1 Exch. 476.
CASUS OMISSUS PRO OMISSO HABENDUS
EST. A case omitted is to be held as (intention-
ally) omitted. Tray.Lat.Max. 67.
CAT. A domestic animal that catches mice; a
well known domesticated carnivorous mammal
kept to kill mice and rats and as a house pet.
Thurston v. Carter, 112 Me. 361, 92 A. 295, L.R.A.
1915C, 359.
An instrument with which criminals are flogged.
It consists of nine lashes of whipcord, tied to a
wooden handle, and is frequently called cat-o-nine-
tails. It is used where the whipping-post is re-
tained as a mode of punishment and was formerly
resorted to in the navy.
CATALLA. In old English law. Chattels. The
word among the Normans primarily signified only
beasts of husbandry, or, as they are still called,
"cattle," but, in a secondary sense, the term was
applied to all movables in general, and not only
to these, but to whatever was not a fief or feud.
Wharton.
CATALLA JUSTE POSSESSA AMITTI NON
POSSUNT. Chattels justly possessed cannot be
lost. Jenk.Cent. 28.
CATALLA OTIOSA. Dead goods or chattels, as
distinguished from animals. Idle cattle, that is,
such as were not used for working, as distinguish-
ed from beasts of the plow; called also animalia
otiosa. Bract. fols. 217, 217b; 3 Bl.Comm. 9.
CATALLA REPUTANTUR INTER MINIMA IN
LEGE. Chattels are considered in law among the
least (or minor) things. Jenk.Cent. 52.
CATALLIS CAPTIS NOMINE DISTRICTIONIS.
An obsolete writ that lay where a house was with-
in a borough, for rent issuing out of the same,
and which warranted the taking of doors, win-
dows, etc., by way of distress.
CATALLIS REDDENDIS. For the return of the
chattels; an obsolete writ that lay where goods
delivered to a man to keep till a certain day were
not upon demand redelivered at the day. Reg.
Orig. 39.
CATALLUM. A chattel. Most frequently used
in the plural form, catalla (q. v.). Cowell; Du
Cange.
CATALS. Goods and chattels. See Catalla.
CATANEUS. A tenant in capite. A tenant hold-
ing immediately of the crown. Spelman.
CATASCOPUS. An old name for an archdeacon.
CATASTROPHE. A notable disaster; a more
serious calamity than might ordinarily be under-
stood from the term "casualty." Reynolds v.
Board of Com'rs of Orleans Levee Dist., 139 La.
518, 71 So. 787, 791.
CATCH TIME CHARTER. One under which
compensation is paid for the time the boat is ac-
tually used. Schoonmaker-Conners Co. v. New
York Cent. R. Co., D.C.N.Y., 12 F.2d 314, 315.
CATCHING BARGAIN. See Bargain.
CATCHINGS. Things caught, and in the posses-
sion, custody, power, and dominion of the party,
with a present capacity to use them for his own
purposes. The term includes blubber, or pieces of
whale flesh cut from the whale, and stowed on or
under the deck of a ship. A policy of insurance
upon outfits, and catchings substituted for the out-
fits, in a whaling voyage, protects the blubber.
Rogers v. Insurance Co., 1 Story, 603; Fed.Cas.No.
12,016; 4 Law Rep. 297.
CATCHLAND. Land in Norfolk, so called because
it is not known to what parish it belongs, and the
minister who first seizes the tithes of it, by right
of preoccupation, enjoys them for that year.
Cowell.
CATCHPOLL. A name formerly given to a
sheriff's deputy, or to a constable, or other officer
whose duty it is to arrest persons. He was a sort
of serjeant. The word is not now in use as an
official designation. Minshew.
CATER COUSIN. (From Fr. Quatrecousin.) A
cousin in the fourth degree; hence any distant
or remote relative. Bla.Law Tracts 6.
CATHEDRAL. In English ecclesiastical law. A
tract set apart for the service of the church. The
church of the bishop of the diocese, in which is his
cathedra, or throne, and his special jurisdiction;
in that respect the principal church of the diocese.
CATHEDRAL PREFERMENTS. In English ec-
clesiastical law. All deaneries, archdeaconries,
and canonries, and generally all dignities and
offices in any cathedral or collegiate church, be-
low the rank of a bishop.
CATHEDRATIC. In English ecclesiastical law. A
sum of 2s. paid to the bishop by the inferior cler-
gy; but from its being usually paid at the bishop's
synod, or visitation, it is commonly named syno-
dals. Wharton.
CATHOLIC CREDITOR. In Scotch law. A credi-
tor whose debt is secured on all or several distinct
parts of the debtor's property. Bell.
CATHOLIC EMANCIPATION ACT. The statute
of 10 Geo. IV, c. 7, by which Roman Catholics
were restored, in general, to the full enjoyment
of all civil rights, except that of holding eccle-
siastical offices, and certain high appointments in,
the state. 3 Steph.Comm. 109.
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CATONIANA REGULA. In Roman law. The
rule which is commonly expressed in the maxim,
Quod ab initio non valet tractu temporis non
convalebit, meaning that what is at the beginning
void by reason of some technical (or other) legal
defect will not become valid merely by length of
time. The rule applied to the institution of
hceredes, the bequest of legacies, and such like.
The rule is not without its application also in
English law; e. g., a married woman's will (being
void when made) is not made valid merely be-
cause she lives to become a widow. Brown.
CATTLE. A generic term for domestic quad-
rupeds; animals used by man for labor or food.
In its primary sense, it embraces horses, mares,
geldings, foals, or fillies, asses, and mules, as
well as animals of the ox kind or bovine species.
Bell v. Erie R. Co., 183 App.Div. 608, 171 N.Y.S.
341, 343. The term may also include goats, swine,
and sheep. Ash Sheep Co. v. U. S., 252 U.S. 159,
40 S.Ct. 241, 243, 64 L.Ed. 507. Calves running
with their mothers are cattle. Peterson v. Citi-
zens' Bank of Stuart, 117 Neb. 327, 220 N.W. 575,
577.
In the narrower, popular sense, animals of the
bovine genus. State v. Eaglin, 148 La. 75, 86 So.
658, 659; Gragg v. State, 112 Neb. 732, 201 N.W.
338, 340. This is the sense in which the term is
generally used in the western United States, and
it is said further that it is not generally, but may
be, taken to mean calves, or animals younger than
yearlings. State v. District Court of Fifth Judi-
cial Dist. in and for Nye County, 42 Nev. 218, 174
P. 1023, 1025.
CATTLE GATE. In English law. A customary
proportionate right of pasture enjoyed in common
with others. 34 E. L. & Eq. 511; 1 Term 137.
A right to pasture cattle in the land of another.
It is a distinct and several interest in the land,
passing by lease and release. 13 East, 159; 5
Taunt. 811.
CATTLEGUARD. A device to prevent cattle from
straying along a railroad-track at a highway-cross-
ing. Heskett v. Railway Co., 61 Iowa, 467, 16 N.W.
525; True v. Maine Cent. R. Co., 113 Me. 375, 94
A. 183, 184.
CATTLE PASS. As used in a statute, a narrow
passage way under a railroad track high and wide
enough to admit the passage of a cow, horse, or
ox to and from a pasture. True v. Maine Cent.
R. Co., 113 Me. 375, 94 A. 183, 184.
CATTLE RANGE. Under a statute, a range the
usual and customary use of which has been for
cattle. State v. Butterfield, 30 Idaho 415, 165 P.
218, 219.
CATTLE RUSTLING. Stealing of bovine cattle,
Galeppi v. C. Swanston & Son, 107 Cal.App. 30,
290 P. 116, 119.
CAUCASIAN. Pertaining to the white race, to
which belong the greater part of European nations
and those of western Asia. Rice v. Gong Lum,
139 Miss. 760, 104 So. 105, 110. The term is inap-
plicable to denote families or stocks inhabiting
Europe, and speaking either the so-called Aryan or
Semitic languages. Ex parte Shahid, D.C.S.C., 205
F. 812, 814.
CAUCUS. A meeting of the legal voters of any
political party assembled for the purpose of choos-
ing delegates or for the nomination of candidates
for office.
CAUDA TERR2E. A land's end, or the bottom of
a ridge in arable land. Cowell.
CAULCEIS. Highroads or ways pitched with flint
or other stones.
CAUPO. In the civil law. An innkeeper. Dig.
4, 9, 4, 5.
CAUPONA. In the civil law. An inn or tavern.
Inst. 4, 5, 3.
CAUPONES. In the civil law. Innkeepers. Dig.
4, 9; Id. 47, 5; Story, Ag. § 458.
CAURSINES. Italian merchants who came into
England in the reign of Henry III., where they
established themselves as money lenders, but were
soon expelled for their usury and extortion.
Cowell; Blount.
CAUSA.
In General
Lat. A cause, reason, occasion, motive, or in-
ducement.
As Preposition
Used with the force of a preposition, it means
by virtue of, on account of. Also with reference
to, in contemplation of. Causa mortis, in anticipa-
tion of death.
Condition, etc.
A condition; a consideration; motive for per-
forming a juristic act. Used of contracts, and
found in this sense in the Scotch law also. Bell.
In the Civil Law and in Old English Law
The word signified a source, ground, or mode
of acquiring property; hence a title; one's title
to property. Thus, "titulus est justa causa possi-
dendi id quod nostrum est;" title is the lawful
ground of possessing that which is ours. 8 Coke,
153. See Mackeld.Rom.Law, §§ 242, 283.
In Old English Law
A cause; a suit or action pending. Causa tes-
tamentaria, a testamentary cause. Causa matri-
monialis, a matrimonial cause. Bract. fol. 61.
In Old European Law
Any movable thing or article of property.
See "Cause."
CAUSA CAUSE EST CAUSA CAUSATI. The
cause of a cause is the cause of the thing caused.
12 Mod. 639. The cause of the cause is to be con-
sidered as the cause of the effect also. Freem. 329.
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CAUSA
CAUSA CAUSANS. The immediate cause; the
last link in the chain of causation.
CAUSA CAUSANTIS, CAUSA EST CAUSATI.
The cause of the thing causing is the cause of the
effect. 4 Camp. 284; Marble v. City of Worcester,
4 Gray, Mass., 398.
CAUSA DATA ET NON SECUTA. In the civil
law. Consideration given and not followed, that
is, by the event upon which it was given. The
name of an action by which a thing given in the
view of a certain event was reclaimed if that
event did not take place. Dig. 12, 4; Cod. 4, 6.
CAUSA ECCLESLZE PUBLICIS 2EQUIPARATUR;
ET SUMMA EST RATIO QUIE PRO RELIGIONE
FACIT. The cause of the church is equal to public
cause; and paramount is the reason which makes
for religion. Co.Litt. 341.
CAUSA ET ORIGO EST MATERIA NEGOTII.
The cause and origin is the substance of the thing;
the cause and origin of a thing are a material part
of it. The law regards the original act. 1 Coke,
99; Wing.Max. 41, Max. 21.
CAUSA HOSPITANDI. For the purpose of being
entertained as a guest. 4 Maule & S. 310.
CAUSA JACTITATIONIS MARITAGII. A form
of action which anciently lay against a party who
boasted or gave out that he or she was married
to the plaintiff, whereby a common reputation of
their marriage might ensue. 3 Bla.Comm. 93.
See Jactitation of Marriage.
CAUSA LIST. See Cause List.
CAUSA MATRIMONII PRLELOCUTI. A writ ly-
ing where a woman has given lands to a man in
fee-simple with the intention that he shall marry
her, and he refuses so to do within a reasonable
time, upon suitable request. Cowell. Now obso-
lete. 3 Bla.Comm. 183, n.
CAUSA MORTIS. In contemplation of approach-
ing death.
CAUSA MORTIS DONATIO. See Donatio Mortis
Causa.
CAUSA PATET. The reason is open, obvious,
plain, clear, or manifest. A common expression
in old writers. Perk. c. 1, §§ 11, 14, 97.
CAUSA PROXIMA. The immediate, nearest, or
latest cause. The efficient cause; the one that nec-
essarily sets the other causes in operation. In-
surance Co. v. Boon, 95 U.S. 117, 130, 24 L.Ed. 395.
CAUSA PROXIMA NON REMOTA SPECTATUR.
An efficient adequate cause being found, it must
be considered the true cause unless some other
independent cause is shown to have intervened be-
tween it and the result. Mead v. Chickasha Gas
& Electric Co., 137 Oki. 74, 278 P. 286, 291. The
immediate (or direct), not the remote, cause, is
looked at, or considered. 12 East, 648; 3 Kent,
Comm. 302; Memphis & C. R. Co. v. Reeves, 10
Wall. 191, 19 L.Ed. 909; L. R. 1 C. P. 320; 4 Am.
L.Rev. 201. For a distinction, however, between
immediate and proximate cause, see "Cause."
CAUSA REI. In the civil law. Things accessory
or appurtenant. The accessions, appurtenances,
or fruits of a thing; comprehending all that the
claimant of a principal thing can demand from
a defendant in addition thereto, and especially
what he would have had, if the thing had not
been withheld from him. Inst. 4, 17, 3; Mackeld.
Rom.Law, § 166.
CAUSA REMOTA. A remote or mediate cause; a
cause operating indirectly by the intervention of
other causes.
CAUSA SCIENTI2E PATET. The reason of the
knowledge is evident. A technical phrase in
Scotch practice, used in depositions of witnesses.
CAUSA SINE QUA NON. A necessary or inevita-
ble cause; a cause without which the effect in
question could not have happened. Hayes v. Rail-
road Co., 111 U.S. 228, 4 S.Ct. 369, 28 L.Ed. 410.
A cause without which the thing cannot be. With
reference to negligence, it is the cause without
which the injury would not have occurred. Fish-
er v. Butte Electric Ry. Co., 72 Mont. 594, 235 P.
330, 332.
CAUSA TURPIS. A base (immoral or illegal)
cause or consideration.
CAUSA VAGA ET INCERTA NON EST CAUSA
RATIONABILIS. 5 Coke, 57. A vague and un-
certain cause is not a reasonable cause.
CAUS1E DOTIS, VITIE, LIBERTATIS, FISCI
SUNT INTER FAVORABILIA IN LEGE. Causes
of dower, life, liberty, revenue, are among the
things favored in law. Co.Litt. 341.
CAUSAM NOBIS SIGNIFICES QUARE. A writ
addressed to a mayor of a town, etc., who was
by the king's writ commanded to give seisin of
lands to the king's grantee, on his delaying to do
it, requiring him to show cause why he so delayed
the performance of his duty. Blount; Cowell.
CAUSARE. In the civil and old English law. To
be engaged in a suit; to litigate; to conduct a
cause.
CAUSATOR. A litigant; one who takes the part
of the plaintiff or defendant in a suit.
In old European law. One who manages or
litigates another's cause. Spelman.
CAUSE, v. To be the cause or occasion of ; to
effect as an agent; to bring about; to bring into
existence; to make. La Page v. U. S., C.C.A.
Minn., 146 F.2d 536, 538, 156 A.L.R. 965; Huffman
v. U. S., C.C.A.Colo., 259 F. 35, 38; Shea v. U. S.,
C.C.A.Ohio, 251 F. 440, 447. To induce; to com-
pel. Hill v. Montgomery, 352 Mo. 147, 176 S.W.
2d 284, 287.
CAUSE, n. (Lat. causa.) Each separate antece-
dent of an event, Griffin v. Anderson Motor Serv-
ice Co., 227 Mo.App. 855, 59 S.W.2d 805, 808.
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CAUSE OF ACTION
Means, Metropolitan Life Ins. Co. v. Funderburk,
Tex.Civ.App., 81 S.W.2d 132, 137. Motive, In re
Canal Bank & 'trust Co.'s Liquidation, 178 La. 575,
152 So. 297, 298. Probable cause, State v. Brock-
man, 231 Wis. 634, 283 N.W. 338, 340. Producing
cause, Traders & General Insurance Co. v. Ray,
Tex.Civ.App., 128 S.W.2d 80, 84. Sum of antece-
dents of an event, Burns v. Eminger, 84 Mont. 397,
276 P. -437, 442; Griffin v. Anderson Motor Serv-
ice Co., 227 Mo.App. 855, 59 S.W.2d 805, 808. That
which produces an effect; whatever moves, im-
pels or leads. Weinberg v. Richardson, 291 Ill.
App. 618, 10 N.E.2d 893; Merlo v. Public Service
Co. of Northern Illinois, 381 Ill. 300, 45 N.E.2d
S65, 675; State v. Craig, 161 S.C. 232, 159 S.E. 559,
560. The origin or foundation of a thing, as of
a suit or action; a ground of action. State v.
Dougherty, 4 Or. 203.
As used with reference to the removal of an officer or
employee, "cause" means a just, not arbitrary, cause ;
one relating to a material matter, or affecting the public
interest. Brokaw v. Burk, 89 N.J.Law, 132, 98 A. 11, 12;
a cause relating to and affecting administration of office
and of substantial nature directly affecting public's rights
and interests, State ex rel. Rockwell v. State Board of Edu-
cation, 213 Minn. 184, 6 N.W.2d 251, 260, 143 A.L.R. 503.
Conduct indicating unworthy or illegal motives or im-
proper administration of power, Voorhees v. Kopler, 239
App.Div. 83, 265 N.Y.S. 532, 533; Tappan v. Helena Fed-
eral Savings & Loan Ass'n of Helena, Ark., 193 Ark. 1023,
104 S.W.2d 458, 459; Zurich General Accident & Liability
Ins. Co. v. Kinsler, 12 Ca1.2d 98, 81 P.2d 913, 915; mis-
feasance or nonfeasance, Schoonover v. City of Viroqua, 244
Wis. 615, 12 N.W.2d 912, 914; As used in fraternal benefit
society by-law authorizing suspension of subordinate coun-
cil and dissolution of its charter, "cause," means legal
cause or just cause, a substantial, reasonable, or just
cause. Wichita Council No. 120 of Security Ben. Ass'n v.
Security Ben. Ass'n, 138 Kan. 841, 28 P.2d 976, 979, 94
A.L.R. 629.
"Cause" and "consequence" are correlative terms. Kel-
sey v. Rebuzzini, 87 Conn. 556, 89 A. 170, 171, 52 L.R.A.,
N.S., 103; In re Benson, 178 Okl. 299, 62 P.2d 962, 965.
Clause for termination of employment for "any cause"
held to refer to cause justifying termination for employee's
breach of contract, not arbitrarily. Parsil v. Emery, 242
,App.Div. 653, 272 N.Y.S. 439, 440.
Statute permitting an award to be set aside for "cause"
means for good cause or some such cause as fraud or sur-
prise, Elsenpeter v. Potvin, 213 Minn. 129, 5 N.W.2d 499,
501.
In Civil and Scotch Law
The consideration of a contract, that is, the
inducement to it, or motive of the contracting
party for entering into it. Dig. 2, 14, 7; Toullier,
liv. 3, tit. 3, c. 2, § 4; 1 Abb. 28; Bell, Dict.
The civilians use the term "cause," in relation to obliga-
tions, in the same sense as the word "consideration" is
used in the jurisprudence of England and the United
States. It means the motive, the inducement to the agree-
ment,-id quod inducet ad contrahendum. Mouton v. No-
ble, 1 La. Ann. 192. But see Ames, 3 Sel.Essays in Anglo-
Amer.Leg.Hist. 279; Poll.Contr. 74.
Used also in the civil law in the sense of res
(a thing). Non porcellum, non agnellum nec alia
causa (not a hog, not a lamb, nor other thing).
Du Cange.
In Pleading
Reason; motive; matter of excuse or justifica-
tion. See S Co. 67; 11 East 451; 1 Chit.Pl. 585.
In Practice
A suit, litigation, or action. Any question, civil
or criminal, litigated or contested before a court
of justice.
As used in venue statute, "cause" means "cause of ac-
tion", which means the right which a party has to institute
a judicial proceeding. Bergin v. Temple, 111 Mont. 539,
111 P.2d 286, 289, 133 A.L.R. 1115.
Cause imports a judicial proceeding entire, and is nearly
synonymous with lis in Latin, or suit in English. "Case"
not infrequently has a more limited signification, import-
ing a collection of facts, with the conclusion of law there-
on. See Shirts v. Irons, 47 Ind. 445; Erwin v. U. S., D.C.
Ga., 37 Fed. 470, 2 L.R.A. 229. But "cause" and "case"
are often synonymous. Zilz v. Wilcox, 190 Mich. 486, 157
N.W. 77, 80; Schmalz v. Arnwine, 118 Or.,300. 246 P. 718,
719; Cheney v. Richards, 130 Me. 288, 155 A. 642, 644.
A distinction is sometimes taken between "cause" and
"action." Burrill observes that a cause is not, like an ac-
tion or suit, said to be commenced, nor is an action, like
a cause, said to be tried. But, if there is any substantial
difference between these terms, it must lie in the fact that
"action" refers more peculiarly to the legal procedure of a
controversy ; "cause" to its merits or the state of facts
involved. Thus, we cannot say "the cause should have
been replevin." Nor would it be correct to say "the plain-
tiff pleaded his own action."
As to "Probable Cause" and "Proximate Cause,"
see those titles. As to challenge "for cause," see
"Challenge."
CAUSE-BOOKS. Books kept in the central office
of the English supreme court, in which are en-
tered all writs of summons issued in the office.
Rules of Court, v 8.
CAUSE LIST. In English practice. A printed
roll of actions, to be tried in the order of their en-
try, with the names of the solicitors for each liti-
gant. Similar to the calendar of causes, or dock-
et, used in American courts.
CAUSE OF ACTION. A "cause of action" may
mean one thing for one purpose and something
different for another. Venezuelan Meat Export
Co. v. U. S., D.C.Md., 12 F.Supp. 379, 383; U. S. v.
Memphis Cotton Oil Co., Ct.C1., 288 U.S. 62, 53 S.
Ct. 278, 280, 77 L.Ed. 619.
It may mean : accident, Maryland Casualty Co. v.
Gerlaske, C.C.A.Tex., 68 F.2d 497, 499; act causing injury,
Fiscus v. Kansas City Public Service Co., 153 Kan. 493, 112
P.2d 83, 85; action, Wattman v. St. Luke's Hospital
Ass'n, 314 Ill.App. 244, 41 N.E.2d 314, 319; averment of
facts sufficient to justify a court in rendering a judgment,
Mobley v. Smith, 24 Ala.App. 553, 138 So. 551; Vickers v.
Vickers, 45 Nev. 274, 202 P. 31, '32; breach of contract or
agreement, Press v. Davis, Tex.Civ.App., 118 S.W.2d 982,
989, 990; breach of duty. Shapiro v. McCarthy, 279 Mass.
425, 181 N.E. 842, 844; case, Colla v. Carmichael U-Drive
Autos, 111 Cal.App. 378, 294 P. 378, 380; claim, Bishop v.
Jensen, 212 Wis. 30, 248, N.W. 771, 772; East Side Mill &
Lumber Co. v. Southeast Portland Lumber Co., 155 Or.
367, 64 P.2d 625, 627, 628; concept of law of remedies.
Rooney v. Maczko, 315 Pa. 113, 172 A. 151, 153; U. S. v.
Memphis Cotton Oil Co., Ct.C1., 288 U.S. 62, 53 S.Ct. 278,
280, 77 L.Ed. 619; concurrence of the facts giving rise to
enforceable claim, United States v. Standard Oil Co. of
California, D.C.Cal., 21 F.Supp. 645, 660; contract, Stone
Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568,
91 S.W.2d 674; demand, State v. Vincent, 152 Or. 205, 52
P.2d 203, 206; every fact which it is necessary to establish
to support right or obtain judgment, Beale v. Cherryhomes,
Tex.Civ.App., 21 S.W.2d 65, 66; Dublin Mill & Elevator
Co. v. Cornelius, Tex.Civ.App., 5 S.W.2d 1027, 1028; fact,
or a state of facts to which law, sought to be enforced
against a person or thing, applies. Gulf, C. & S. F. Ry. Co
v. Cities Service Co., D.C.Del., 270 F. 994, 995; Condor Pe-
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CAUSE OF ACTION
troleum Co. v. Greene, Tex.Civ.App., 164 S.W.2d 713, 718;
Burns v. Duncan, 23 Tenn. App. 374, 133 S.W.2d 1000, 1004;
facts constituting wrong, Whalen v. Strong, 230 App.Div.
617, 246 N.Y.S. 40, 45; facts which give rise to one or
more relations of right-duty between two or more persons,
Elliott v. Mosgrove, 162 Or. 507, 93 P.2d 1070, 1072, 1073,
1076; failure to perform legal obligation to do, or refrain
from performance of, some act, In re Canfield's Will, 165
Misc. 66, 300 N.Y.S. 502; ground on which an action may
be maintained or sustained, ground or reason for an ac-
tion, East Side Mill & Lumber Co. v. Southeast Portland
Lumber Co., 155 Or. 367, 64 P.2d 625, 627, 628. Juncture
of wrong and damage, City of Newport v. Rawlings, 289
Ky. 203, 158 S:W.2d 12, 14; legal duty and breach of duty,
Alford v. Zeigler, 65 Ga.App. 294, 16 S.E.2d 69, 74; legal
liability arising out of facts, White v. Nemours Trading
Corporation, D.C.Mass., 290 F. 250, 252; legal obligation,
Hartford Accident & Indemnity Co. v. Clegg, 103 Utah 414,
135 P.2d 919, 922, 923; legal right in plaintiff and duty in
defendant and violation or breach of right or duty, Evan's
v. Williams, 291 Ky. 484, 165 S.W.2d 52, 54; legal right of
action. Inhabitants of Town of Milo v. Milo Water Co.,
129 Me. 463, 152 A. 616, 617; legal right violated, Howard
v. Brown, 172 Okl. 308, 44 P.2d 959, 961; legal wrong
threatened or committed, Connor v. Williams, 187 S.C. 119,
197 S.E. 211, 214; matter for which action may be brought,
Ex parte Teeters, 130 Or. 631, 280 P. 660, 662; Williams v.
City of Dallas, Tex.Civ.App., 52 S.W.2d 373, 375; negligent
act or acts, Cox v. Wilkes-Barre R. Corporation, 334 Pa.
568, 6 A.2d 538, 539; obligation, United States v. Standard
Oil Co. of California, D.C.Cal., 21 F.Supp. 645, 660; oc-
currence which gives rise to litigation, Maryland Casualty
Co. v. Gerlaske, C.C.A.Tex., 68 F.2d 497, 499; particular
matter for which suit is brought, Severance v. Heyl &
Patterson, 115 Pa.Super. 36, 174 A. 787, 789; power to en-
force obligation, Woods v. Cook, 14 Cal.App.2d 560, 58 P.2d
965, 966; primary right and corresponding duty and delict
or wrong, Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d
707, 714; redressible wrong, Meshek v. Cordes, 164 Okl. 40,
22 P.2d 921, 926 ; or breach of duty by defendant, Skalow-
ski v. Joe Fisher, Inc., 152 S.C. 108, 149 S.E. 340, 344, 65 A.
L.R. 1427; American Nat. Ins. Co. v. Warnock, Tex.Civ.
App., 143 S.W.2d 624, 628; right of action or right of re-
covery, Williams v. City of Dallas, Tex.Civ.App., 52 S.W.
2d 373, 375 ; Graham v. Scripture, 26 How.Prac., N.Y., 501;
right to bring suit, Viers v. Webb, 76 Mont. 38, 245 P. 257,
259; Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316, 318;
right to enforce obligations. Woods v. Cook, 14 Cal.App.2d
560, 58 P.2d 965, 966; right to prosecute an action with
effect. Travelers' Ins. Co. v. Louis Padula Co., 224 N.Y. 397,
121 N.E. 398. 350; right to recover something from another,
Universal Oil Products Co. v. Standard Oil Co. of Indiana,
D.C.Mo., 6 F.Supp. 37, 39; right to relief in court, Kittin-
ger v. Churchill Evangelistic Ass'n, 239 App.Div. 253, 267
N.Y.S. 719, 722; Mulligan v. Bond & Mortgage Guarantee
Co., 193 App.Div. 741, 184 N.Y.S. 429, 431; subject matter
of the controversy, Johnson v. Jordan, D.C.Okl., 22 F.Supp.
286, 289; subject-matter on which plaintiff grounds his
right of recovery, Zelen v. Domestic Industries, 131 Neb.
123, 267 N.W. 352, 354; East Side Mill & Lumber Co. v.
Southeast Portland Lumber Co., 155 Or. 367, 64 P.2d 625,
627, 628; that which creates necessity for bringing action,
Brevick v. Cunard S. S. Co., 63 N. D. 210, 247 N.W. 373,
375; that which produces or effects result complained of,
Jacobson v. Mutual Ben. Health & Accident Ass'n, 73 N.D.
108, 11 N.W.2d 442, 445, 446; unlawful violation of a right.
Keith v. Texas & P. R. Co., 14 La.App. 290, 129 So. 190,
194; violation or invasion of right, East Side Lumber &
Coal Co. v. Barfield, 193 Ga. 273, 18 S.E.2d 492, 496; wrong
committed or threatened, Criswell v. Criswell, 101 Neb.
349, 165 N.W. 302.
It may sometimes mean a person having a right of ac-
tion. Thus, where a legacy is left to a married woman,
and she and her husband bring an action to recover it,
she is called in the old books the "meritorious cause of
action." 1 H.B1. 108.
A distinction may be taken between "cause of action"
and "right of action." Elliott v. Chicago, M. & St. P. Ry.
Co., 35 S.D. 57, 150 N.W. 777, 779. The cause of action
is distinct .from the "remedy." Tonn v. Inner Shoe Tire
Co., Tex.Civ.App., 260 S.W. 1078, 1080. And the cause of
action may exist, though the remedy does not. Chandler
v. Horne, 23 Ohio App. 1, 154 N.E. 748, 750.
Cause of action is not synonymous with chose in action.
Bank of Commerce v. Rutland & W. R. Co., 10 How.Prac.,
N.Y., 1. But under a Montana statute, If the relief sought
is the recovery of money or other personal property, the
cause of action is designated a "thing in action." State v.
District Court of Tenth Judicial Dist. in and for Fergus
County, 74 Mont. 355, 240 P. 667, 669.
CAUSE OF INJURY. That which actually pro-
duces it, Anderson v. Byrd, 133 Neb. 483, 275 N.
W. 825, 826.
CAUSE SUIT TO BE BROUGHT. Commence or
begin, State v. Osen, 67 N.D. 436, 272 N.W. 783,
784.
CAUSES CELEBRES. Celebrated cases. A work
containing reports of the decisions of interest and
importance in French courts in the seventeenth
and eighteenth centuries.
Secondarily a single trial or decision is often called a
"cause celébre," when it is remarkable on account of the
parties involved or the unusual, interesting, or sensational
character of the facts.
CAUSEWAY. A raised roadbed through low
lands; it differs from a levee. Board of Sup'rs of
Quitman County v. Carrier Lumber & Mfg. Co.,
103 Miss. 324, 60 So. 326, 327. See, also, Coleman-
Fulton Pasture Co. v. Aransas County, Tex.Civ.
App., 180 S.W. 312, 313.
CAUSIDICUS. In the civil law. A speaker or
pleader; one who argued a cause ore tenus. See
"Advocate."
CAUTELA. Lat. Care; caution; vigilance; pre-
vision.
CAUTI JURATORIA. See "Caution Juratory."
CAUTIO. In the Civil and French law. Security
given for the performance of any thing; bail; a
bond or undertaking by way of surety. Also the
person who becomes a surety.
In Scotch law. A pledge, bond, or other securi-
ty for the performance of an obligation, or com-
pletion of the satisfaction to be obtained by a judi-
cial process. Bell, Dict.; 6 Mod. 162.
CAUTIO FIDEJUSSORIA. Security by means of
bonds or pledges entered into by third parties.
Du Cange.
CAUTIO MUCIANA. Security given by an heir or
legatee, to obtain immediate possession of inher-
itance or legacy, for observance of a condition an-
nexed to the bequest, where the act which is the
object of the condition is one which he must avoid
committing during his whole life, e. g., that he
will never marry, never leave the country, never
engage in a particular trade, etc. See Mackeld.
Rom.Law, § 705.
CAUTIO PIGNORATITIA. Security given by
pledge, or deposit, as plate, money, or other goods.
CAUTIO PRO EXPENSIS. Security for costs,
charges, or expenses.
CAUTIO USUFRUCTUARIA. Security, which
tenants for life give, to preserve the property
rented free from waste and injury. Ersk.Inst. 2,
9, 59.
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CAVERE
CAUTION. In Scotch law, and in admiralty law.
Surety; security; bail; an undertaking by way of
surety. 6 Mod. 162. See Cautio. See also Pru-
dence; Cautious.
To warn, exhort, to take heed, or give notice of
danger. Arnold v. United States, C.C.A.Colo., 94
F.2d 499, 501.
CAUTION JURATORY. In Scotch law. Security
given by oath. That which a suspender swears is
the best he can afford in order to obtain a sus-
pension. Ersk.Pract. 4, 3, 6.
CAUTIONARY. In Scotch law. An instrument
in which a person binds himself as surety for an-
other.
CAUTIONARY JUDGMENT. Where an action in
tort was pending and the plaintiff feared the de-
fendant would dispose of his real property be-
fore judgment, a cautionary judgment was en-
tered with a lien on the property; Seisner v.
Blake, 13 Pa.Co.Ct.R. 333; so in an action on a
note against a religious association, where it was
alleged that the defendant was endeavoring to
sell its real estate before judgment on the note;
Witmer & Dundore v. Port Treverton Church, 17
Pa.Co.Ct.R. 38.
CAUTIONE ADMITTENDA. In English ecclesias-
tical law. A writ that lies against a bishop who
holds an excommunicated person in prison for
contempt, notwithstanding he offers sufficient cau-
tion or security to obey the orders and command-
ment of the church for the future. Reg.Orig. 66;
Cowell.
CAUTIONER. In Scotch law. A surety; a bonds-
man. One who binds himself in a bond with the
principal for greater security. He is still a cau-
tioner whether the bond be to pay a debt, or
whether he undertake to produce the person of
the party for whom he is bound. Bell.
CAUTIONNEMENT. In French law. The same
as becoming surety in English law.
CAUTIONRY. In Scotch law. Suretyship.
CAUTIOUS. Careful; prudent. Horton v. New
York Cent. R. Co., 205 App.Div. 763, 200 N.Y.S.
365, 366.
The terms "cautious" and "prudent" may be used inter-
changeably in defining negligence. Malcolm v. Mooresville
Cotton Mills, 191 N.C. 727, 133 S.E. 7, 9. But "cautious"
differs from "prudent" in suggesting the idea of timidity,
with its secondary meaning as overprudent; fearful. Peo-
ple v. Anderson, 58 Cal.App. 267, 208 P. 324, 325. See
Prudence.
CAVEAT. Lat. Let him beware.
An intimation to a judge or officer notifying him to sus-
pend a proceeding until merits of the caveat are deter-
mined. In re Phillips' Estate, 293 Pa. 351, 143 A. 9. A
formal notice or warning given by a party interested to a
court, judge, or ministerial officer against the performance
of certain acts within his power and jurisdiction. This
process may be used in the proper courts to prevent (tem-
porarily or provisionally) the proving of a will or the
grant of administration, or to arrest the enrollment of a
decree in chancery when the party intends to take an ap-
peal, to prevent the grant of letters patent, etc. It is also
used, in the American practice, as a kind of equitable pro-
cess, to stay the granting of a patent for lands. Ex parte
Crafts, 28 S.C. 281, 5 S.E. 718; In re McCahan's Estate,
221 Pa. 188, 70 A. 711; See, also, 1 Burn, Eccl.Law 19,
263; Nelson, Abr. ; Dane, Abr. ; Ayliffe, Parerg.; 3 Bla.
Comm. 246; 2 Chit.Pr. 502, note b; 3 Redf.Wills 119;
Poph. 133; 1 Sid. 371.
In patent law. A formal written notice to officers of the
patent-office, requiring them to refuse letters patent on a
particular invention or device to any other person, until
the party filing the caveat (called the "caveator") shall
have an opportunity to establish his claim to priority of
invention. The practice was abolished by act of June 25,
1910, c. 414, § 1, 36 Stat. 843.
CAVEAT ACTOR. Let the doer, or actor, beware.
CAVEAT EMPTOR. Let the buyer beware (or
take care). Kellogg Bridge Co. v. Hamilton, 110
U.S. 108, 116, 3 S.Ct. 537, 28 L.Ed. 86.
This maxim summarizes the rule that a purchaser
must examine, judge, and test for himself, Miller v. Tif-
fany, 1 Wall. 309, 17 L.Ed. 540; Hargous v. Stone, 5 N.Y.
82; Humphrey v. Baker, 71 Okl. 272, 176 P. 896; the pur-
chaser at sheriff's sales must inform himself of extent of
judgment debtor's title, Brightwell v. First Nat. Bank, C.
C.A.Fla., 109 F.2d 271, 273; the purchaser takes risk of
quality and condition unless he protects himself by a war-
ranty or there has been a false representation, State ex rel.
Jones Store Co. v. Shain, Mo., 179 S.W.2d 19, 20. There is
no warranty of title. McKnight v. Johnson, 236 Ky. 763,
34 S.W.2d 239, 240.
CAVEAT EMPTOR, Q1UI IGNORARE NON DE-
BUIT QUOD JUS ALIENUM EMIT. Hob. 99.
Let a purchaser beware, who ought not to be ig-
norant that he is purchasing the rights of anoth-
er. Let a buyer beware; for he ought not to be
ignorant of what they are when he buys the rights
of another. Broom, Max. 768; Co.Litt. 132 a;
3 Taunt. 439; Sugd. V. & P. 328; 1 Story, Eq.Jur.
ch. 6.
CAVEAT TO WILL. A demand that will be pro-
duced and probated in open court. An attack
on validity of alleged will. Whitehurst v. Abbott,
225 N.C. 1, 33 S.E.2d 129, 132.
CAVEAT VENDITOR.
In Roman law. A maxim, or rule, casting the
responsibility for defects or deficiencies upon the
seller of goods. See Hargous v. Stone, 5 N.Y. 73.
In English and American Jurisprudence. Caveat
venditor is sometimes used as expressing, in a
rough way, the rule which governs all those cases
of sales to which caveat emptor does not apply.
CAVEAT VIATOR. Let the wayfarer beware.
Broom, Max. 387, n.; 10 Exch. 774. This phrase
has been used as a concise expression of the duty
of a traveler on the highway to use due care to
detect and avoid defects in the way. Cornwell v.
Com'rs, 10 Exch. 771, 774.
CAVEATOR. One who files a caveat.
CAVENDUM EST A FRAGMENTIS. Beware of
fragments. Bac.Aph. 26.
CAVERE. Lat. In the civil and common law.
To take care; to exercise caution; to take care
or provide for; to provide by law; to provide
against; to forbid by law; to give security; to
give caution or security on arrest.
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CAVERS
CAVERS. Persons stealing ore from mines in
Derbyshire, punishable in the berghmote or min-
ers' court; also officers belonging to the same
mines. Wharton.
CAYA. In old English law. A quay, kay, key, or
wharf. Cowell.
CAYAGIUM. In old English law. Cayage or kay-
age; a toll or duty anciently paid the king for
landing goods at a quay or wharf. The barons
of the Cinque Ports were free from this duty.
Cowell.
CEAP. A bargain; anything for sale; a chattel;
also cattle, as being the usual medium of barter.
Sometimes used instead of ceapgild, (q. v.).
CEAPGILD. Payment or forfeiture of an animal.
An ancient species of forfeiture. Cowell.
CEASE. To stop; to become extinct; to pass
away; to come to an end. MacDonald v. /Etna
Indemnity Co., 90 Conn. 226, 96 A. 926, 927; Mar-
tin v. Gray, 193 Ark. 32, 97 S.W. 439, 441. Sus-
pend or forfeit. Marks v. La Guardia, Sup., 31
N.Y.S.2d 336, 350. A cessation of activity. Huas-
teca Petroleum Co. v. Cia de Navegacao Lloyd
Brasileiro, D.C.N.Y., 297 F. 318, 321; In re Simp-
son, 62 Cal.App. 549, 217 P. 789, 790.
City of Macon v. Bunch, 156 Ga. 27, 118 S.E. 769, held
that a city detective, by being kept in jail for 31 days to
answer an indictment, did not cease to perform the duties
of his office so as to cause a vacancy therein.
CEASE TO DO BUSINESS. A going concern
ceases to do business when it sells all its property,
plant, assets of all kinds, including cash, and
the buyer takes possession. Van Oss v. Premier
Petroleum Co., 113 Me. 180, 93 A. 72, 77.
CEDE. To yield up; to assign; to grant. Gen-
erally used to designate the transfer of territory
from one government to another. Goetze v. Unit-
ed States, C.C.N.Y., 103 Fed. 72; Baltimore v.
Turnpike Road, 80 Md. 535, 31 A. 420.
CEDENT. In Scotch law. An assignor. One who
transfers a chose in action. Kames, Eq. 43.
CEDO. I grant. The word ordinarily used in
Mexican conveyances to pass title to lands. Mul-
ford v. Le Franc, 26 Cal. 88, 108.
CEDULA.
In old English law. A schedule.
In Spanish law. An act under private signa-
ture, by which a debtor admits the amount of the
debt, and binds himself to discharge the same on
a specified day or on demand. Also the notice or
citation affixed to the door of a fugitive criminal
requiring him to appear before the court where
the accusation is pending.
CEDULE. In French law. The technical name
of an act under private signature. Campbell
v. Nicholson, 3 La.Ann. 458.
CELATION. In medical jurisprudence. Conceal-
ment of pregnancy or delivery.
CELDRA. In old English law, a chaldron. In old
Scotch law, a measure of grain, otherwise called
a "chalder." See 1 Karnes, Eq. 215.
CELEBRATION OF MARRIAGE. The formal act
by which a man and woman take each other for
husband and wife, according to law; the solemni-
zation of a marriage. The term is usually applied
to a marriage ceremony attended with ecclesias-
tical functions. See Pearson v. Howey, 11 N.J.
Law, 19.
CELIBACY. The condition or state of life of an
unmarried person.
CELLERARIUS. A butler in a monastery; some-
times in universities called "manciple" or "ca-
terer."
CEMETERY. A graveyard; burial ground. Pet-
erson v. Stolz, Tex.Civ.App., 269 S.W. 113, 117;
Village of Villa Park v. Wanderer's Rest Ceme-
tery Co., 316 Ill. 226, 147 N.E. 104, 105. Place or
area set apart for interment of the dead. City of
Wichita v. Schwertner, 130 Kan. 397, 286 P. 266,
268, Damon v. State, Tex.Com.App., 52 S.W.2d
368, 370.
Term includes not only lots for depositing the bodies of
the dead, but also avenues, walks, and grounds for shrub-
bery and ornamental purposes. Ex parte Adlof, 86 Tex.
Cr.R. 13, 215 S.W. 222, 223. Town of Blooming Grove v.
Roselawn Memorial Park Co., 231 Wis. 492, 286 N.W. 43,
45. A place of burial, differing from a churchyard by its
locality and incidents. Wharton. See Winters v. State, 9
Ind. 174; Cemetery Ass'n v. New Haven, 43 Conn. 243, 21
Am.Rep. 643.
Six or more human bodies being buried at one place con-
stitutes the place a cemetery.
CEMETERY WORK. Platting, grading, planting,
beautifying, and maintaining a tract of land in
such manner as to render it a proper place for
sepulture of the dead, and to preserve it as such.
Rosedale Cemetery Ass'n v. Industrial Accident
Commission of California, 37 Cal.App. 706, 174
P. 351, 352.
CENDUL1E. Small pieces of wood laid in the
form of tiles to cover the roof of a house;
shingles. Cowell.
CENEGILD. In Saxon law. An expiatory mulct
or fine paid to the relations of a murdered per-
son by the murderer or his relations. Spelman.
CENELLAZE. In old records. Acorns.
CENNINGA. A notice given by a buyer to a sell-
er that the things which had been sold were
claimed by another, in order that he might appear
and justify the sale. Blount; Whishaw. But the
exact significance of this term is somewhat doubt-
ful. Spelman, Gloss.
CENS. In French Canadian law. An annual trib-
ute or due reserved to a seignior or lord, and im-
posed merely in recognition of his superiority.
Guyot, Inst. c. 9. The tens varies in amount and
in mode of payment. 2 Low.C. 40. See Censive;
Censitaire.
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CENTER
CENSARIA. In old English law. A farm, or
house and land let at a standing rent. Cowell.
CENSARII. In old English law. Farmers, or
such persons as were liable to pay a census, (tax.)
Blount; Cowell.
CENSERE. In the Roman law. To ordain; to de-
cree. Dig. 50, 16, 111.
CENSITAIRE. In Canadian law. A tenant by
cens, (q. v.)
CENSIVE. In Canadian law. Tenure by cens,
(q. v.)
CENSO. In Spanish and Mexican law. An an-
nuity. A ground rent. The right which a person
acquires to receive a certain annual pension, for
the delivery which he makes to another of a de-
termined sum of money or of an immovable thing.
Civ.Code Mex. art. 3206. See Schm.Civil Law, 149,
309; White, New Recop. bk. 2, c. 7, § 4.
CENSO AL QUITAR. A redeemable annuity;
otherwise called "censo redimible." Trevino v.
Fernandez, 13 Tex. 630.
CENSO CONSIGNATIVO. A censo (q. v.) is
called "consignativo" when he who receives the
money assigns for the payment of the pension
(annuity) the estate the fee in which he reserves.
Civ.Code Mex. art. 3207.
CENSO ENFITEUTICO. In Spanish and Mexican
law. An emphyteutic annuity. That species of
censo (annuity) which exists where there is a
right to require of another a certain canon or
pension annually, on account of having trans-
ferred to that person forever certain real estate,
but reserving the fee in the land. The owner who
thus transfers the land is called the "censualisto,"
and the person who pays the annuity is called the
"censatario." Hall, Mex.Law, § 756; Hart v.
Burnett, 15 Cal. 557.
CENSO RESERVATIO. In Spanish and Mexican
law. The right to receive from another an annual
pension by virtue of having transferred land to
him by full and perfect title. Trevino v. Fernan-
dez, 13 Tex. 655.
CENSORSHIP. The denial of right of "freedom
of the press" and of right of "freedom of speech",
and of all those rights and privileges which are
had under a free government. Esquire, Inc., v.
Walker, D.C.D.C., 55 F.Supp. 1015, 1020.
CENSUALES. In old European law. A species
of oblati or voluntary slaves of churches or mon-
asteries; those who, to procure the protection of
the church, bound themselves to pay an annual
tax or quit-rent only of their estates to a church
or monastery.
CENSUERE. In Roman law. They have decreed.
The term of art, or technical term for the judg-
ment, resolution, or decree of the senate. Tayl.
Civil Law, 566.
CENSUMETHIDUS, or CENSUMORTHIDUS. A
dead rent, like that which is called "mortmain."
Blount; Cowell.
CENSURE. In ecclesiastical law. A spiritual
punishment.
It consists in withdrawing from a baptized person
(whether belonging to the clergy or the laity) a privilege
which the church gives him, or in wholly expelling him
from the Christian communion. The principal varieties of
censures are admonition, degradation, deprivation, excom-
munication, penance, sequestration, suspension. Phillim.
Ecc. Law, 1367.
A custom observed in certain manors in Devon and Corn-
wall, where all persons above the age of sixteen years are
cited to swear fealty to the lord, and to pay 11d. per poll,
and id. per annum.
CENSUS. The official counting or enumeration of
people of a state, nation or district, Huntington v.
Cast, 149 Ind. 255, 48 N.E. 1025; Republic v. Paris,
10 Hawaii, 581; Vale Independent Consol. School
Dist. No. 2 of Butte County v. School Dist. No. 71
of Meade County, 54 S.D. 207, 222 N.W. 948.
It is a finding of the population and not an "esti-
mate." State ex rel. Reynolds v. Jost, 265 Mo. 51,
175 S.W. 591, 597, Ann.Cas.1917D, 1102.
In Roman law. A numbering or enrollment of
the people, with a valuation of their fortunes.
In old European law. A tax, or tribute; a toll.
Montesq. Esprit des Lois, liv. 30, c. 14.
CENSUS REGALIS. In English law. The annual
revenue or income of the crown.
CENT. A coin of the United States, the least in
value of those now minted. It is the hundredth
part of a dollar. Its weight is 48 gr., and it is corn-
posed of ninety-five per centum of copper and of
five per centum of tin and zinc in such proportions
as shall be determined by the Director of the
Mint. Act of Feb. 12, 1873, § 16. See Rev.Stat. §
3515, 31 U.S.C.A. § 317.
CENTAL. A weight of 100 pounds avoirdupois,
used at Liverpool for corn. Cent.Dict. Usually
called hundredweight in the United States.
CENTENA. A hundred. A district or division
containing originally a hundred freemen, estab-
lished among the Goths, Germans, Franks, and
Lombards, for military and civil purposes, and
answering to the Saxon "hundred." Spelman; 1
Bl.Comm. 115.
Also, in old records and pleadings, a hundred
weight.
CENTENARII. Petty judges, under-sheriffs of
counties, that had rule of a hundred, (centena,)
and judged smaller matters among them. 1 Vent.
211.
CENTENI. The principal inhabitants of a cen-
tena, or district composed of different villages,
originally in number a hundred, but afterwards
only called by that name.
CENTER. This term is often used, not in its strict
sense of a geographical or mathematical center,
but as meaning the middle or central point or
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CENTER
portion of anything. Bass v. Harden, 160 Ga. 400,
128 S.E. 397, 400; Hill v. Ralph, 165 Ark. 524, 265
S.W. 57, 58; Darnell v. Ransdall, Mo.App., 277
S.W. 372, 373.
The center of a section of land is the intersection of a
straight line from the north quarter corner to the south
quarter corner with a straight line from the east quarter
corner to the west quarter corner. Lunz v. Sandmeier's
Estate, 172 Minn. 338, 215 N.W. 426. Similarly, the center
of a street intersection refers to the point where the center
lines of the two streets cross. Thrush v. Lingo Lumber
Co., Tex.Civ.App., 262 S.W. 551, 552. The edges of the
hardened surface of a road constitute the "bounds of the
highway" in determining "center" of highway at an inter-
section. Decker v. Roberts, 126 Conn. 478, 12 A.2d 541, 543.
The center of the main channel of a river, is the middle
of broad and distinctly defined bed of main river, Hill
City Compress Co. v. West Kentucky Coal Co., 155 Miss. 55,
122 So. 747, 748.
CENTESIMA, In Roman law. The hundredth
part.
Usurice centesimce. Twelve per cent. per annum; that
is, a hundredth part of the principal was due each month,
—the month being the unit of time from which the Romans
reckoned interest. 2 Bl.Comm. 462, note.
CENTIME. The name of a denomination of
French money, being the one-hundredth part of
a franc.
CENTRAL CRIMINAL COURT. Since 1834, an
English court, having jurisdiction for the trial of
crimes and misdemeanors committed in London
and certain adjoining parts of Kent, Essex, and
Sussex, and of such other criminal cases as may
be sent to it out of the king's bench superseded the
"Old Bailey."
CENTRAL OFFICE. The central office of the su-
preme court of judicature in England is the office
established in pursuance of the recommendation
of the legal departments commission in order to
consolidate certain offices. It is divided into
departments. Sweet.
CENTRAL STATION. A plant at which electric
current is generated to supply consumers. Peo-
ple ex rel. Taylor v. Walsh, 140 Misc. 25, 248
N.Y.S. 753, 757.
CENTRAL TRAFFIC CONTROL. A system of
railroad operation for directing the movement of
trains by signals controlled from a central point.
Van Schaick v. McCarthy, C.C.A.Colo., 116 F.2d
987, 990.
CENTRAL VISION. The exact and clear vision
of the thing one looks directly at. Baugh v. Glas-
sell-Rogers Drilling Co., La.App., 190 So. 130, 132.
CENTRALIZATION. The system of government
in a country where management of local matters
is in the hands of functionaries appointed by the
ministers of state, paid by the state, and in con-
stant communication and under the constant con-
trol and inspiration of the ministers of state, and
where the funds of the state are largely applied
to local purposes. Wharton.
CENTUMVIRI. In Roman law. The name of an
important court consisting of a body of one hun-
dred and five judges. 3 Bla.Comm. 515.
CENTURY. One hundred. A body of one hun-
dred men. The Romans were divided into cen-
turies as the English were divided into hundreds.
Also a cycle of one hundred years.
CEORL. In Anglo Saxon law. A class of free-
men personally free, but possessing no landed
property. Guizot, Rep.Govt.
A tenant at will of free condition, who held
land of the thane on condition of paying rent
or services. Cowell.
A freeman of inferior rank occupied in hus-
bandry. Spelman.
Under the Norman rule, this term, as did others which
denoted workmen, especially those which applied to the
conquered race, became a term of reproach, as is indicated
by the popular signification of churl. Cowell; 1 Poll. &
Maitl. 8; 2 id. 458.
CEP'. Lat. I have taken. This word was of fre-
quent use in the returns of sheriffs when they
were made in Latin, and particularly in the return
to a writ of capias.
The full return (in Latin) to a writ of copies was com-
monly made in one of the following forms : Cepi corpus,
I have taken the body, 1. e., arrested the body of the de-
fendant; Cepi corpus et bail, I have taken the body and re-
leased the defendant on a bail-bond; Cepi corpus et corn-
mittitur, I have taken the body and he has been committed
(to prison) ; Cepi corpus et est in custodia, I have taken
the defendant and he is in custody; Cepi corpus et est
languidus, I have taken the defendant and he is sick, i. e.,
so sick that he cannot safely be removed from the place
where the arrest was made; Cepi corpus et paratum habeo,
I have taken the body and have it (him) ready, I. e., in cus-
tody and ready to be produced when ordered.
CEPIT.
In civil practice. He took. This was the char-
acteristic word employed in (Latin) writs of tres-
pass for goods taken, and in declarations in tres-
pass and replevin.
Replevin in the cepit is a form of replevin which is
brought for carrying away goods merely. Wells, Repl.
53; Ford v. Ford, 3 Wis. 399.
In criminal practice. A technical word necessary
in an indictment for larceny. The charge must
be that the defendant took the thing stolen with
a felonious design. Bac.Abr. "Indictment," G, 1.
CEPIT ET ABDUXIT. He took and led away.
The emphatic words in writs in trespass or indict-
ments for larceny, where the thing taken was a
living chattel, i. e., an animal.
CEPIT ET ASPORTAVIT. He took and carried
away. Applicable in a declaration in trespass or
an indictment for larceny where the defendant
has carried away goods without right. 4 Bl,
Comm. 231.
CEPIT IN ALIO LOCO. In pleading. A plea in
replevin, by which the defendant alleges that he
took the thing replevied in another place than that
mentioned in the declaration. 1 Chit.P1. 490;
Rast.Entr. 554, 555; Morris, Repl. 141; Wells
Repl. § 707.
CEPPAGIUM. In old English law. The stump:
or roots of trees which remain in the ground after
the trees are felled. Fleta, lib. 2, c. 41, § 24.
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CERTIFICATE
CERA, or CERE. In old English law. Wax; a
seal.
CERA IMPRESSA. Lat. An impressed seal.
It may include an impression made on wafers or other
adhesive substances capable of receiving an impression, or
even paper. Pierce v. Indseth, 106 U.S. 546, 1 S.Ct. 418, 27
L. Ed. 254.
CERAGRUM. In old English law. A payment to
provide candles in the church. Blount.
CEREVISA. In old English law. Ale or beer.
CERT MONEY. In old English law. Head money
or common fine. Money paid yearly by the resi-
dents of several manors to the lords thereof, for
the certain keeping of the leet, (pro certo letce;)
and sometimes to the hundred. Blount; 6 Coke,
78; Cowell.
CERTA DEBET ESSE INTENTIO, ET NARRA-
TIO, ET CERTUM FUNDAMENTUM, ET CERTA
RES QUIE DEDUCITUR IN JUDICIUM. The de-
sign and narration ought to be certain, and the
foundation certain, and the matter certain, which
is brought into court fo be tried. Co.Litt. 303a.
CERTA RES. In old English law. A certain
thing. Fleta, lib. 2, c. 60, §§ 24, 25.
CERTAIN. Ascertained; precise; identified; defi-
nitive; clearly known; unambiguous; or, in law,
capable of being identified or made known, with-
out liability to mistake or ambiguity, from data
already given. Losecco v. Gregory, 108 La. 648,
32 So. 986; White v. Wadhams, 204 Mich. 381, 170
N.W. 60, 62. Not specifically named; indetermi-
nate, indefinite; one or some. Wilhite v. Arm-
strong, 328 Mo. 1064, 43 S.W.2d 422, 423. Some
among possible others, In re Mineral Lac Paint
Co., D.C.Pa., 17 F.Supp. 2. That which may be
made certain. Brown v. City of Shreveport, La.
App., 15 So.2d 234, 236; Singer v. Campbell, 217
Ky. 830, 290 S.W. 667, 668; Civ.Code La. art. 3556;
Lee v. Pearson, La.App., 143 So. 516, 518.
CERTAIN SERVICES. In feudal and old English
law. Such services as were stinted (limited or de-
fined) in quantity, and could not be exceeded on
any pretense; as to pay a stated annual rent, or
to plow such a field for three days. 2 Bl.Comm.
61.
CERTAINTY. Absence of doubt. Bennett v. Mc-
Krell, Tex.Civ.App., 125 S.W.2d 701, 707.
In Pleading
Distinctness; clearness of statement; particu-
larity.
Such precision and explicitness in the statement of al-
leged facts that the pleader's averments and contention
may be readily understood by the pleader on the other
side, as well as by the court and jury. State v. Burke, 151
Mo. 143, 52 S. W. 226.
This word is technically used in pleading In two different
senses, signifying either distinctness, or particularity, as
opposed to undue generality.
Certainty is said to be of three sorts : (1) Certainty to acommon intent is such as is attained by using words in
their ordinary meaning, but is not exclusive of another
meaning which might be made out by argument or in-
ference. See 2 H.Bla. 530; Andr.Steph.Pl. 384. (2) Cer-
tainty to a certain intent in general is that which allows
of no misunderstanding if a fair and reasonable construc-
tion is put upon the language employed, without bringing
in facts which are possible, but not apparent. 1 Wms.
Saund. 49; Fuller v. Hampton, 5 Conn. 423. (3) Certainty
to a certain intent in particular is the highest degree of
technical accuracy and precision. Co.Litt. 303; 2 H.B1.
530; State v. Parker, 34 Ark. 158, 36 Am.Rep. 5; Lawes,
Pl. 54. These definitions, which have been adopted from
Coke, have been subjected to severe criticism, but are of
some utility in drawing attention to the different degrees
of exactness and fulness of statement required in different
instances. 13 East, 112; 3 Maule & S. 14; People v. Dun-
lap, 13 Johns., N.Y., 437.
In Contracts
The quality of being specific, accurate, and dis-
tinct. As to uncertainty of contract, see Davie v.
Min. Co., 93 Mich. 491, 53 N.W. 625, 24 L.R.A. 357;
Van Schaick v. Van Buren, 70 Hun, 575, 24 N.Y.S.
306.
A thing is certain when its essence, quality, and quantity
are described, distinctly set forth, etc. Dig. 12, 1, 6. It is
uncertain when the description is not that of an individual
object, but designates only the kind. Civ.Code La. art.
3556, par. 7; 5 Coke, 121.
In Determining Negotiability of Instrument
That is certain which may be rendered certain;
a commercial, and not mathematical, certainty.
Gerrish v. Atlantic Ice & Coal Co., C.C.A.Ga., 80 F.
2d 648, 650,
CERTIFICANDO DE RECOGNITIONE STAPU-
LIE. In English law. A writ commanding the
mayor of the staple to certify to the lord chan-
cellor a statute-staple taken before him where the
party himself detains it, and refuses to bring in
the same. There is a like writ to certify a stat-
ute-merchant, and in divers other cases. Reg.Orig.
148, 151, 152.
CERTIFICATE. A document in use in the Eng-
lish customhouse. No goods can be exported by
certificate, except foreign goods formerly import-
ed, on which the whole or a part of the customs
paid on importation is to be drawn back. Whar-
ton.
A ticket. Hall v. U. S., D.C.Cal., 10 F.Supp. 739,
740.
A warrant. Graham v. State, 123 Tex.Cr.R.
121, 57 S.W.2d 850, 854.
A written assurance, or official representation,
that some act has or has not been done, or some
event occurred, or some legal formality been com-
plied with.
A written assurance made or issuing from some court,
and designed as a notice of things done therein, or as a
warrant or authority, to some other court, judge, or offi-
cer. People v. Foster, 27 Misc.Rep. 576, 58 N.Y.S. 574; U.
S. v. Ambrose, 108 U.S. 336, 2 S.Ct. 682, 27 L. Ed. 746. A
statement of some fact in a writing signed by the party
certifying. Nowell v. Mayor and Council of Monroe, 177
Ga. 648, 171 S.E. 136, 141. A declaration in writing. Ballen
& Friedman v. Bank of Krenlin, 37 Okl. 112, 130 P. 539,
540, 44 L.R.A.,N.S., 621. A "certificate" by a public offi-
cer is a statement written and signed, but not necessarily
or customarily sworn to, which is by law made evidence of
the truth of the facts stated for all or for certain purposes.
State v. Abernethy, 190 N.C. 768, 130 S.E. 619, 620.
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CERTIFICATE
A writing by which testimony is given that a fact has or
has not taken place. Laclede Land & Improvement Co. v.
Morten, 183 Mo.App. 637, 167 S.W. 658.
CERTIFICATE FOR COSTS. In English practice.
A certificate or memorandum drawn up and
signed by the judge before whom a case was tried,
setting out certain facts the existence of which
must be thus proved before the party is entitled,
under the statutes, to recover costs.
CERTIFICATE INTO CHANCERY. In English
practice. This is a document containing the opin-
ion of the common-law judges on a question
of law submitted to them for their decision by the
chancery court.
CERTIFICATE LANDS. In Pennsylvania, in the
period succeeding the revolution, lands set apart
in the western portion of the state, which might be
bought with the certificates which the soldiers of
that state in the revolutionary army had received
in lieu of pay. Cent. Dict.
CERTIFICATE OF ACKNOWLEDGMENT. The
certificate of a notary public, justice of the peace,
or other authorized officer, attached to a deed,
mortgage, or other instrument, setting forth that
the parties thereto personally appeared before
him on such a date and acknowledged the instru-
ment to be their free and voluntary act and deed.
Read v. Loan Co., 68 Ohio St. 280, 67 N.E. 729, 62
L:R.A. 790. A verification of the act of the maker
of an instrument. Thane v. Dallas Joint Stock
Land Bank of Dallas, Tex.Civ.App., 129 S.W.2d
795, 799.
CERTIFICATE OF ASSIZE. A writ granted for
the re-examination or retrial of a matter passed
by assize before justices. Fitzh:Nat.Brev. 181. It
is now entirely obsolete. 3 Bla.Comm. 389. Con-
sult, also, Comyns, Dig. Assize (B, 27, 28).
CERTIFICATE OF DEPOSIT. A written ac-
knowledgment by a bank or banker of a deposit
with promise to pay to depositor, to his order, or
to some other person or to his order, Wheelock
v. Cantley, 227 Mo.App. 102, 50 S.W.2d 731, 734;
Mariland Finance Corporation v. People's Bank
of Keyser, 99 W.Va. 230, 128 S.E. 294, 295. A
bank's promissory note, Dickenson v. Charles, 173
Va. 393, 4 S.E.2d 351, 353.
Documents showing deposits in building and
loan association in form of passbooks or any oth-
er appropriate written recital. Alter v. Security
Building & Loan Co. of Defiance, 58 Ohio App.
114, 16 N.E.2d 228, 233.
CERTIFICATE OF DONATION. A permit or
right granted certificate holder to enter upon land
belonging to state to make improvements required
by law. Young v. Pumphrey, 191 Ark. 98, 83 S.W.
2d 84, 86.
CERTIFICATE OF EVIDENCE. Practically syn-
onymous with bill of exceptions. Yott v. Yott, 257
Ill. 419, 100 N.E. 902, 903.
CERTIFICATE OF HOLDER OF ATTACHED
PROPERTY. A certificate required by statute, in
some states, to be given by a third person who is
found in possession of property subject to an at-
tachment in the sheriff's hands, setting forth the
amount and character of such property and the
nature of the defendant's interest in it. Code Civil
Proc.N.Y. § 650, Civil Practice Act; § 918.
CERTIFICATE OF INCORPORATION. The in-
strument by which a private corporation is
formed, under general statutes, executed by sev-
eral persons as incorporators and filed in some
designated public office as evidence of corporate
existence. This is properly distinguished from a
"charter," which is a direct legislative grant of
corporate existence and powers to named in-
dividuals.
CERTIFICATE OF INDEBTEDNESS. An obli-
gation sometimes issued by corporations having
practically the same force and effect as a bond,
though not usually secured on any specific prop-
erty. Christie v. Duluth, 82 Minn. 202, 84 N.W.
754. It may, however, create a lien on all the
property of the corporation issuing it, superior to
the rights of general creditors. Jefferson Bank-
ing Co. v. Trustees of Martin Institute, 146 Ga. 383,
91 S.E. 463, 466.
CERTIFICATE OF INTEREST. An instrument
evidencing a fractional or percentage interest in
oil and gas production. People v. Sidwell, 27 Cal.
2d 121, 162 P.2d 913, 915.
CERTIFICATE OF OCCUPANCY. A paper certi-
fying that premises complied with provisions of
zoning ordinance. Frank J. Durkin Lumber Co.
v. Fitzsimmons, 106 N.J.Law, 183, 147 A. 555, 557.
CERTIFICATE OF PREFERRED STOCK. Cer-
tificate that person is registered holder of desig-
nated number of shares of preferred capital stock.
Cring v. Sheller Wood Rim Mfg. Co., 98 Ind.App.
310, 183 N.E. 674, 677.
CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY. A license or permit to use
highways for stated purposes. Railroad Commis-
sion of Texas v. Southwestern Greyhound Lines,
Tex.Civ.App., 92 S.W.2d 296, 301, 302.
CERTIFICATE OF PURCHASE. A certificate is-
sued by public officer to successful bidder at a
judicial sale (such as a tax sale), which will en-
title him to a deed upon confirmation of sale by
the court, or (as the case may be) if the land is
not redeemed within the time limited. Lightcap
v. Bradley, 186 Ill. 510, 58 N.E. 221.
CERTIFICATE OF REGISTRY. In maritime law.
A certificate of the registration of a vessel accord-
ing to the registry acts, for the purpose of giving
her a national character. 3 Steph.Comm. 274; 3
Kent, Comm. 139-150.
CERTIFICATE OF SALE. The same as "certifi-
cate of purchase," supra.
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CERTIORARI
CERTIFICATE OF STOCK. A certificate of a cor-
poration or joint-stock company that named per-
son is owner of designated number of shares of
stock. Gibbons v. Mahon, 136 U.S. 549, 10 S.Ct.
1057, 34 L.Ed. 525; Edwards v. Wabash Ry. Co.,
C.C.A.N.Y., 264 F. 610, 613. A written instrument
stating or acknowledging that named person is
owner of designated number of shares of stock.
It is merely written evidence of ownership of
stock, and of the rights and liabilities resulting
from such ownership. It is merely a paper repre-
sentation of an incorporeal right, and stands On the
footing similar to that of other muniments o/
title. Whitehead v. Gormley, 116 Okl. 287, 245
P. 562, 565, 47 A.L.R. 171; Misenheimer v. Alexan.
der, 162 N.C. 226, 78 S.E. 161, 164; Home for Des.
titute Crippled Children v. Boomer, 308 Ill.App,
170, 31 N.E.2d 812, 820; Warren v. New Jersey
Zinc Co., N.J.Ch., 116 N.J.Eq. 315, 173 A. 128, 132.
CERTIFICATE SENT TO 1 B. Notation reading
"Certificate Sent to 1 B" meant that certificate
was to be sent to single beneficiary if war risk in-
surance application should be accepted. McCor-
mack v. U. S., C.C.A.N.Y., 66 F.2d 519, 521.
CERTIFICATE, TRIAL BY. A mode of trial now
little in use; it is resorted to in cases where the
fact in issue lies out of the cognizance of the court,
and the judges, in order to determine the question,
are obliged to rely upon the solemn averment or
information of persons in such a station as af-
fords them the clearest and most competent
knowledge of the truth. Brown.
CERTIFICATION, In Scotch practice. This is
the assurance given to a party of the course to
be followed in case he does not appear or obey
the order of the court.
CERTIFICATION OF ASSIZE. In English prac-
tice. A writ anciently granted for the re-examin.
ing or retrial of a matter passed by assize before
justices, now entirely superseded by the remedy
afforded by means of a new trial. See Certificate
of Assize.
CERTIFICATS DE COUTUME. In French law.
Certificates given by a foreign lawyer, establish-
ing the law of the country to which he belongs
upon one or more fixed points. These certificates
can be produced before the French courts, and are
received as evidence in suits upon questions of
foreign law. Arg.Fr.Merc.Law, 548.
CERTIFIED CARRIERS. Carriers using high-
ways of state to whom certificates of public con-
venience and necessity have been issued. People
v. Henry, 131 Cal.App. 82, 21 P.2d 672.
CERTIFIED CHECK. A depositor's check recog-
nized and accepted by bank officer as valid ap-
propriation of the amount specified and as drawn
against funds held by bank.
The usual method of certification is for cashier or teller
to write across face of check, over his signature, state-
ment that it is good when properly indorsed. See McAdoo
v. Farmers' State Bank of Zenda, 106 Kan. 662, 189 P. 155,
156; Bathgate v. Exchange Bank of Chula, 199 Mo.App.
583, 205 S. W. 875, 876.
The certification of a check is a statement of fact,
amounting to an estoppel of the bank to deny liability,
Bank of Bay Biscayne v. Ball. 99 Fla. 745, 128 So. 491, 492.
A warranty that sufficient funds are on deposit and have
been set aside. World Exchange Bank v. Commercial Cas-
ualty Ins. Co., 255 N.Y. 1, 173 N.E. 902, 904. It means that
bank holds money to pay check and is liable to pay it to
proper party. Sundial Const. Co. v. Liberty Bank of
Buffalo, 277 N.Y. 137, 13 N.E.2d 745, 746.
CERTIFIED COPY. A copy of a document or
record, signed and certified as a true copy by the
officer to whose custody the original is intrusted.
People v. Foster, 27 Misc. 576, 58 N.Y.Supp. 574;
Ehrlich v. Mulligan, 104 N.J.Law, 375, 140 A. 463,
465, 57 A.L.R. 596.
CERTIFIED PUBLIC ACCOUNTANT. A trained
accountant who examines the books of accounts
of corporations and others and reports upon them.
CERTIFY. To testify in writing; to make known
or establish as a fact. Smith v. Smith, Ind.App.,
110 N.E. 1013, 1014. To vouch for a thing in writ-
ing. State ex inf. Carnahan ex rel. Webb v.
Jones, 266 Mo. 191, 181 S.W. 50, 52. To give a
certificate, or to make a declaration about a writ-
ing. Ainsa v. Mercantile Trust Co. of San Fran-
cisco, 174 Cal. 504, 163 P. 898, 901. To warrant.
Ettman v. Federal Life Ins. Co., D.C.Mo., 48 F.
Supp. 578, 580.
CERTIORARI. Lat. (To be informed of, to be.
made certain in regard to.) The name of a writ
of review or inquiry. Leonard v. Willcox, 101 Vt.
195, 142 A. 762, 766; Nissen v. International
Brotherhood of Teamsters, Chauffeurs, Stablemen
& Helpers of America, 229 Iowa 1028, 295 N.W.
858.
Certiorari Is an appellate proceeding for re-examination
of action of inferior tribunal or as auxiliary process to
enable appellate court to obtain further information in
pending cause, Shapleigh Hardware Co. v. Brumfield, 159
Miss. 175, 130 So. 98. A writ directed only to an inferior
tribunal, Stewart v. Johnston, C.C.A.Cal., 97 F.2d 548. It
is a discretionary writ, Lennon v. School Dist. No. 11,
Greer County, 189 Okl. 37, 113 P.2d 382, 384. Issued only
for good cause on showing negativing laches in prosecuting
appeal, In re Snelgrove, 208 N.C. 670, 182 S.E. 335, 336. It
is available for review of official, judicial or quasi judicial
actions. State v. Canfield, 166 Minn. 414, 208 N.W. 181;
People ex rel. Elmore v. Allman, 382 Ill. 156, 46 N.E.2d 974,
975. It brings into superior court the record of the admin-
istrative or inferior judicial tribunal for inspection,
Murphy v. Cuesta, Rey & Co., 381 Ill. 162, 45 N.E.2d 26, 28.
It lies as a substitute for an appeal, Pue v. Hood, 222 N.C.
310, 22 S.E.2d 896, 898. To correct errors of law, Dube v.
Mayor of City of Fall River, 308 Mass. 12, 30 N.E.2d 817,
818; to restrain excesses of jurisdiction, Stacy v. Mayor of
City of Haverhill, 317 Mass. 188, 57 N.E.2d 564. To review
erroneous or unwarranted acts or proceedings, State ex rel.
Allen v. Rose, 123 Fla. 544, 167 So. 21, 24. To review ques-
tions of law, Public Welfare Commission v. Civil Service
Commission, 289 Mich. 101, 286 N.W. 173, 175. Where cir-
cumstances are so exceptional that an immediate review is-
in interest of justice, Vingi v. Read, 68 R.I. 484, 29 A.2d
637, 639; where judgment is a miscarriage of justice or
will result in substantial injury to legal rights, Goodkind
v. Wolkowsky, 151 Fla. 62, 9 So.2d 553, 562; or where
applicant for writ lost right of appeal through no fault of
his own, McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448,
451. It lies to determine whether inferior tribunal acted
within or abused or exceeded jurisdiction, Brundage v.
O' Berry, 101 Fla. 320, 134 So. 520, 521; Pierce v. Green,
229 Iowa 22, 294 N.W. 237, 253, 131 A.L.R. 335; or pro-
ceeded illegally, Board of Zoning Appeals of City of Indi-
anapolis v. Waintrup, 99 Ind.App. 576, 193 N.E. 701, 705;
or proceeded regularly, In re Revocation of Restaurant
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CERTIORARI
Liquor License No. R-8981, Issued to John Mami, 144
Pa.Super. 285, 19 A.2d 549, 552; or whether judgment is
prejudicial and materially harmful, Jacksonville American
Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So.
672, 674. It performs the office of the common-law writ of
error, Berry v. Recorder's Court of Town of West Orange,
124 N.J.L. 385, 11 A.2d 743, 745. Limited review only is
involved in the writ, Brundage v. O'Berry, 101 Fla. 320, 134
So. 520, 521. Quashal of record or proceeding is the only
relief available, State ex rel. St. Louis County v. Evans, 346
Mo. 209, 139 S.W.2d 967, 969.
Originally, and in English practice, an original writ com-
manding judges or officers of inferior courts to certify or
to return records or proceedings in a cause for judicial
review of their action. Jacob; Ashworth v. Hatcher, 98
W.Va. 323, 128 S.E. 93. For other common-law definitions,
see F. N. B. 554 A; Bac.Abr. 162, 168, citing 4 Burr. 2244;
In re Dance, 2 N. D. 184, 49 N.W. 733, 33 Am.St.Rep. 768.
In Florida the writs of "certiorari" in use are the com-
mon-law writs, the statutory writ to review judgments of
civil courts of record, the rule certiorari to review inter-
locutory appeals in equity, the rule certiorari for supply-
ing omitted parts of records on appeals or writs of error,
and writs of certiorari issued to review quasi judicial judg-
ments or orders of quasi judicial bodies or officers. Kil-
gore v. Bird, 149 Fla. 570, 6 So.2d 541, 544, 545.
In Massachusetts it is a writ by the supreme judicial
court commanding inferior tribunal to certify and return
its records in a particular case that any errors or irregu-
larities which appear in the proceedings may be corrected.
Pub.St.Mass.1882, p. 1288; Coolidge v. Bruce, 249 Mass.
465, 144 N.E. 397.
In Texas, the ordinary office of writ of "certiorari" is to
perfect the record on appeal. Rev.St.1925, art. 932. Zam-
ora v. Garza, Tex.Civ.App., 117 S.W.2d 165.
In somes states the writ has been abolished by statute
so far as the common-law name is concerned, but the
remedy is preserved under the new name of "writ of
review" ; Southwestern Telegraph & Telephone Co. v.
Robinson, Tex., 1 C.C.A. 91, 48 F. 771.
CERTIORARI, BILL OF. In English chancery
practice. An original bill praying relief. It was
filed for the purpose of removing a suit pending in
some inferior court of equity into the court of
chancery, on account of some alleged incompe-
tency or inconvenience.
CERTIORARI FACIAS. Cause to be certified.
The command of a writ of certiorari.
CERTUM EST QUOD CERTUM REDDI POTEST.
That is certain which can be rendered certain.
Co.Litt. 45 b, 96 a, 142 a; 2 Bla.Comm. 143;' 2 M.
& S. 50; 3 Term 463; 3 M. & K. 353; President,
etc., of Lechmere Bank v. Boynton, 11 Cush.,
Mass., 380.
CERURA. A mound, fence, or inclosure.
CERVISARII. In Saxon law. Tenants who were
bound to supply drink for their lord's table.
Cowell.
CERVISIA. Ale, or beer. Sometimes spelled
"cerevisia."
CERVISIARIUS. In old records. An alehouse
keeper. A beer or ale brewer. Blount; Cowell.
CERVUS. Lat. A stag or deer.
CESAREVITCH, CESAREWITCH. Originally, a
title introduced in Russia in 1799 by Paul I (1754-
1801) for his second son, the Grand Duke Constan-
tine. Afterward the title of the czar's eldest son,
or the heir apparent to the Russian throne. 6
New Internatl.Encyc. 420.
CESAREVNA. In Imperial Russia, the title of
the wife of the cesarevitch, or heir apparent. 6
New Internatl.Encyc. 420.
CESIONARIO. In Spanish law. An assignee.
White, New Recop. b. 3, tit. 10, c. 1, § 3.
CESS, v. In old English law. To cease, stop,
determine, fail.
CESS, n. An assessment or tax. In Ireland, it
was anciently applied to an exaction of victuals,
at a certain rate, for soldiers in garrison.
CESSA REGNARE, SI NON VIS JUDICARE.
Cease to reign, if you wish not to adjudicate.
Hob. 155.
CESSANTE CAUSA, CESSAT EFFECTUS. The
cause ceasing, the effect ceases. Broom, Max.
160; 1 Exch. 430.
CESSANTE RATIONE LEGIS, CESSAT ET IPSA
LEX. The reason of the law ceasing, the law it-
self also ceases. Broom, Max. 159; 4 Co. 38; Ap-
peal of Cummings, 11 Pa. 273; Nice's Appeal, 54
Pa. 201. See Dig. 35, 1, 72, 6.
CESSANTE STATU PRIMITIVO, CESSAT DE-
RIVATIVUS. When the primitive or original es-
tate determines, the derivative estate determines
also. 8 Coke, 34; Broom, Max. 495; 4 Kent 32.
CESSARE. L. Lat. To cease, stop, or stay.
CESSAVIT PER BIENNIUM. In practice. An
obsolete writ, which could formerly have been
sued out when the defendant had for two years
ceased or neglected to perform such service or to
pay such rent as he was bound to do by his tenure,
and had not upon his lands sufficient goods or
chattels to be distrained. Fitzh.Nat.Brev. 208.
It also lay where a religious house held lands on
condition of performing certain spiritual services
which it failed to do. 3 Bl.Comm. 232. Emig v.
Cunningham, 62 Md. 460.
CESSE. (1) An assessment or tax; (2) a tenant
of land was said to cesse when he neglected or
ceased to perform the services due to the lord.
Co.Litt. 373a, 380b.
CESSER. Neglect; a ceasing from, or omission
to do, a thing. 3 Bl.Comm. 232. The determina-
tion of an estate. 1 Coke, 84; 4 Kent, Comm.
33, 90, 105, 295. The determination or ending of
a term, annuity, etc. Sweet.
As to the cesser clause in a charter party, see Steamship
Rutherglen Co. v. Howard Houlder & Partners, N.Y., 122
C.C.A. 166, 203 F. 848; The Marpesia, C.C.A.N.Y., 292 F.
957, 973.
CESSER, PROVISO FOR. A provision in a set-
tlement creating long terms that when the trusts
are satisfied, the term should cease and determine.
Sweet. This proviso generally expresses three
events: (1) The trusts never arising; (2) their
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CHACE
CESSION OF GOODS. The surrender of prop-
erty; the relinquishment that a debtor makes of
Black's Law Dictionary Revised 4th Ed.-19
289
becoming unnecessary or incapable of taking ef-
fect; (3) the performance of them. Sugd.Vend.
(14th Ed.) 621-623.
CESSET EXECUTIO. (Let execution stay.) In
practice. A stay of execution; or an order for
such stay; the entry of such stay on record. 2
Tidd, Pr. 1104.
CESSET PROCESSUS. (Let process stay.) A
stay of proceedings entered on the record. See 2
Dougl. 627; 11 Mod. 231. Formal order for stay
of process or proceedings, Brooks v. Super Service,
183 Miss. 833, 183 So. 484.
CESSIO. Lat. A cession; a giving up, or relin-
quishment; a surrender; an assignment.
CESSIO BONORUM. In Roman law. Cession of
goods. A surrender, relinquishment, or assign-
ment of all his property and effects made by an in-
solvent debtor for the benefit of his creditors.
The term is commonly employed in modern con-
tinental jurisprudence to designate a bankrupt's
assignment of property to be distributed among
his creditors, and is used in the same sense by
some English and American writers, but here
rather as a convenient than as a strictly technical
term. See 2 Bl.Comm. 473; Dig. 2, 4, 25; 48, 19,
1; Nov. 4. 3; La.Civ.Code art. 2166 (Civ.Code, art.
2170) ; Sturges v. Crowninshield, 4 Wheat, .122, 4
L.Ed. 529.
CESSIO IN JURE. In Roman law. A fictitious
suit, in which the person who was to acquire
the thing claimed (vindicabat) the thing as his
own, the person who was to transfer it acknowl-
edged the justice of the claim, and the magistrate
pronounced it to be the property (addicebat) of
the claimant. Sandars' Just.Inst., 5th Ed., 89, 122.
CESSION. The act of ceding; a yielding or giv-
ing up; surrender; relinquishment of property
or rights.
In the Civil Law
An assignment. The act by which a party trans-
fers property to another. The surrender or as-
signment of property for the benefit of one's cred-
itors. See Cessio Bonorum.
In Ecclesiastical Law
A giving up or vacating a benefice, by accepting
another without a proper dispensation. 1 Bl.
Comm. 392; Latch. 234; Cowell.
In Public Law
The assignment, transfer, or yielding up of ter-
ritory by one state or government to another.
Municipality of Ponce v. Church, 210 U.S. 310, 28
S.Ct. 737, 52 L.Ed. 1068.
CESSION DES BIENS. In French law. The vol-
untary or compulsory surrender which a debtor in
insolvent circumstances makes of all his goods
to his creditors.
all his property to his creditors, when he finds
himself unable to pay his debts. Civil Code La.
art. 2170.
CESSIONARY. In Scotch law. An assignee.
Bell.
CESSIONARY BANKRUPT. One who gives up
his estate to be divided among his creditors.
CESSMENT. An assessment, or tax.
CESSOR. One who ceases or neglects so long to
perform a duty that he thereby incurs the danger
of the law. 0. N. B. 136.
CESSURE. L. Fr. A receiver; a bailiff. Kel-
ham.
C'EST ASCAVOIR. L. Fr. That is to say, or to-
wit. Generally written as one word, cestascavoir,
cestascavoire.
C'EST LE CRIME QUI FAIT LA HONTE, ET
NON PAS L'RCHAFAUD. Fr. It is the offense
which causes the shame, and not the scaffold.
CESTUI, CESTUY. He. Used frequently in com-
position in law French phrases.
CESTUI QUE TRUST. He who has a right to a
beneficial interest in and out of an estate the legal
title to which is vested in another. 2 Washb. Real
Prop. 163. The person who possesses the equitable
right to property and receives the rents, issues,
and profits thereof, the legal estate of which is
vested in a trustee. Bernardsville Methodist Epis-
copal Church v. Seney, 85 N.J.Eq. 271, 96 A. 388,
389; Moore v. Shifflett, 187 Ky. 7, 216 S.W. 614,
616. Beneficiary of trust, Ulmer v. Fulton, 129
Ohio St. 323, 195 N.E. 557, 564, 97 A.L.R. 1170.
CESTUI QUE USE. He for whose use and benefit
lands or tenements are held by another. The
cestui que use has the right to receive the profits
and benefits of the estate, but the legal title and
possession (as well as the duty of defending the
same) reside in the other. 2 Bla.Comm. 330; 2
Washb. Real Prop. 95.
CESTUI QUE VIE. He whose life is the measure
of the duration of an estate. 1 Washb. Real Prop.
88. The person for whose life any lands, tene-
ments, or hereditaments are held.
CESTUY QUE DOIT INHERITER AL PERE
DOIT INHERITER AL FILS. He who would have
been heir to the father of the deceased shall also
be heir of the son. Fitzh. Abr. "Descent," 2; 2 Bl.
Comm. 239, 250.
CF. An abbreviated form of the Latin word con-
fer, meaning "compare." Directs the reader's at-
tention to another part of the work, to another
volume, case, etc., where contrasted, analogous, or
explanatory views or statements may be found.
CH. This abbreviation most commonly stands for
"chapter," or "chancellor," but it may also mean
"chancery," or "chief."
CHACE. L. Fr. A chase or hunting ground.

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CHACEA
CHACEA. In old English law. A station of game,
more extended than a park, and less than a forest;
also the liberty of chasing or hunting within a cer-
tain district; also the way through which cattle
are driven to pasture, otherwise called a "drove-
way." Blount.
CHACEA EST AD COMMUNEM LEGEM. A
chase is by common law. Reg.Brev. 806.
CHACEABLE. L. Fr. That may be chased or
hunted.
CHACER. L. Fr. To drive, compel, or oblige;
also to chase or hunt.
CHACURUS. L. Lat. A horse for the chase, or
a hound, dog, or courser.
CHAFEWAX. An officer in the English chancery
whose duty was to prepare wax to seal the writs,
commissions, and other instruments thence issu-
ing. The office was abolished by St. 15 & 16 Viet.
c. 87, § 23.
CHAFFERS. An ancient term for goods, wares,
and merchandise; hence the word chaffering,
which is yet used for buying and selling, or beat-
ing down the price of an article. The word is used
in Stat. 3 Edw. III. c. 4.
CHAFFERY. Traffic; the practice of buying and
selling.
CHAIN. A measure used by engineers and sur-
veyors, being twenty-two yards in length.
CHAIN OF TITLE. Successive conveyances, or
other forms of alienation, affecting a particular
parcel of land, arranged consecutively, from the
government or original source of title down to the
present holder. Capper v. Poulsen, 321 Ill. 480,
152 N.E. 587, 588; Maturi v. Fay, 96 N.J.Eq. 472,
126 A. 170, 173; Havis v. Thorne Inv. Co., Tex.Civ.
App., 46 S.W.2d 329, 332.
CHAIN STORE. A store in a group of stores, one
or more of which is located within the state, under
the same management, supervision, or ownership.
Lee v. Herndon, 151 Fla. 657, 10 So.2d 305, 306.
CHAIRMAN. A name given to the presiding offi-
cer of an assembly, public meeting, convention,
deliberative or legislative body, board of directors,
committee, etc.
CHAIRMAN OF COMMITTEES OF THE WHOLE
HOUSE. In English parliamentary practice. In
the commons, this officer, always a member, is
elected by the house on the assembling of every
new parliament. When the house is in committee
on bills introduced by the government, or in com-
mittee of ways and means, or supply, or in com-
mittee to consider preliminary resolutions, it is his
duty to preside.
CHALDRON, CHALDERN, or CHALDER. Twelve
sacks of coals, each holding three bushels, weigh-
ing about a ton and a half. In Wales they reckon
12 barrels or pitchers a ton or chaldron, and 29
cwt. of 120 lbs. to the ton. Wharton.
A measure of capacity, equal to fifty-eight and
two-thirds cubic feet, nearly. Cowell.
CHALLENGE, v. To object or except to; to pre-
fer objections to a person, right, or instrument; to
formally call into question the capability of a per-
son for a particular function, or the existence of a
right claimed, or the sufficiency or validity of an
instrument; to call or put in question; to put into
dispute; to render doubtful.
CHALLENGE, n. A request by one person to an-
other to fight a duel. Ivey v. State, 12 Ala. 276;
Hawk.P1.Cr. b. 1, c. 3, § 3; State v. Farrier, 8 N.C.
487; 2 Bish.Cr.Law, § 312.
An objection or exception.
The objection or exception may be:
1. Against a person who presents himself at the polls as
a voter, in order that his right to cast a ballot may be
inquired into.
2. Against legal documents, as a declaration, count, or
writ. But this use of the word is now obsolescent. See,
however, Adkins v. Wayne County Court, 94 W.Va. 460,
119 S.E. 284, 285.
3. Taken to the personal qualification of a judge or
magistrate about to preside at the trial of a cause; as on
account of personal interest, his having been of counsel,
bias, etc.  See Bank of North America v. Fitzsimons, 2
Binn., Pa., 454; Pearce v. Affieck, 4 id. 349.
4. Taken to the jurors summoned and returned for the
trial of a cause, People v. Travers, 88 Cal. 233, 26 P. 88.
See 2 Poll. & Maitl. 619, 646; Co.Litt. 155b.
Challenge for Cause
A challenge to a juror for which some cause or reason
is alleged. Termes de la Ley; Bl.Comm. 353. Thus dis-
tinguished from a peremptory challenge. Turner v. State,
114 Ga. 421, 40 S.E. 308; Cr. Code N. Y. § 374.
Challenge Propter Affectum
A challenge on account of bias or partiality or prejudice.
State v. Sawtelle, 66 N.H. 488, 32 A. 831.
Challenge Propter Defectum
A challenge on account of some legal disqualification,
such as infancy or alienage.
Challenge Propter Delictum
A challenge on account of crime; that is, disqualification
arising from the conviction of an infamous crime. Co.Litt.
155 b et seq.; State v. Levy, 187 N.C. 581, 122 S.E. 386,
389.
Challenge Propter Honoris Respectum
A challenge on account of party's social rank.
Challenge to the Array
An exception to the whole panel in which the jury are
arrayed, or set in order by the sheriff in his return, upon
account of partiality, or some default in the sheriff, cor-
oner, or other officer who arrayed the panel or made the
return. 3 BI.Comm. 359; Co.Litt. 155b; Moore v. Guano
Co., 130 N.C. 229, 41 S.E. 293; Durrah v. State, 44 Miss.
789. A challenge to the form and manner of making up
the panel. Cobb v. Atlanta Coach Co., 46 Ga.App. 633. 168
S.E. 126, 127. A challenge that goes to illegality of draw-
ing, selecting, or impaneling array. Lake v. State, 100 Fla.
386, 129 So. 833, 834.
Challenge to the Favor
A challenge based on circumstances of suspicion, as
acquaintance, and the like. 3 Bl.Comm. 363; 4 Bl.Comm.
353; State v. Sawtelle, 66 N.H. 488, 32 A. 831; Cobb v.
Atlanta Coach Co., 46 Ga.App. 633, 168 S.E. 126, 127.
Challenge to the Panel
The same as a challenge to the array, supra. See Pen.
Code Cal. § 1058; Pate v. State, 15 Okl.Cr. 90, 175 P. 122,
123.
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CHAMBIUM
Challenge to the Poll
A challenge made to an individual juror. State v. Car-
lin°, 99 N.J.Law, 292, 122 A. 830, 831; Cobb v. Atlanta
Coach Co., 46 Ga.App. 633, 168 S.E. 126, 127.
General Challenge
A species of challenge for cause, being an objection to a
particular juror, to the effect that the juror is disqualified
from serving in any case. Pen. Code Cal. § 1071.
Peremptory Challenge
In criminal practice. A species of challenge which the
prosecution or the prisoner is allowed to have against a
certain number of jurors, without assigning any cause.
Lewis v. U. S., 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011;
Turpin v. state, 55 Md. 462; Leary v. Railway Co., 69
N.J.Law, 67, 54 A. 527.
Principal Challenge
A challenge of a juror for a cause which carries with it,
prima facie, evident marks of suspicion either of malice or
favor ; as that a juror is of kin to either party within the
ninth degree; that he has an interest in the cause, etc. 3
B1.Comm. 363. A species of challenge to the array made
on account of partiality or some default in the sheriff or
his under-officer who arrayed the panel. 4 Bla.Comm. 353;
Co.Litt. 156 a, b. A challenge based on alleged facts from
which, if proven to be true, incapacity to serve is con-
clusively presumed. Cobb v. Atlanta Coach Co., 46 Ga.App.
633, 168 S.E. 126, 127. A challenge for principal cause,
Butler v. Greensboro Fire Ins. Co., 196 N.C. 203, 145
S.E. 3, 4.
CHALLENGE TO FIGHT. A summons or invita-
tion, given by one person to another, to engage in
a personal combat; a request to fight a duel. A
criminal offense. See Steph.Crim.Dig. 40; 3 East,
581; State v. Perkins, 6 Blackf.Ind. 20.
CHAMBER. A room or apartment in a house. A.
private repository of money; a treasury. A com-
partment; a hollow or cavity. Proudfit Loose
Leaf Co. v. Kalamazoo Loose Leaf Binder Co., C.C.
A.Mich., 230 F. 120, 131. Also used to designate a
court, a commission, or an association of persons
habitually meeting together in an apartment, e. g.,
the "star chamber," "chamber of deputies,"
"chamber of commerce."
CHAMBER BUSINESS. A term applied to all
such judicial business as may properly be trans-
acted by a judge at his chambers or elsewhere, as
distinguished from such as must be done by the
court in session. In re Neagle, C.C.Cal., 39 Fed.
855, 5 L.R.A. 78.
CHAMBER OF ACCOUNTS. In French law. A
sovereign court, of great antiquity, in France,
which took cognizance of and registered the ac-
counts of the king's revenue; nearly the same as
the English court of exchequer. Enc. Brit.
CHAMBER OF COMMERCE. An association
(which may or may not be incorporated) com-
prising the principal merchants, manufacturers,
and traders of a city, designed for convenience in
buying, selling and exchanging goods, and to
foster the commercial and industrial interests of
the place. Similar societies are known by various
names, as, Board of Trade, etc. A board or asso-
ciation to promote the commercial interests of a
locality, county, or the like, or a society of a city
who meet to promote the general trade and com-
merce of the place. Retailers Credit Ass'n of Ala-
meda County v. Commissioner of Internal Reve-
nue, C.C.A.9, 90 F.2d 47, 51, 111 A.L.R. 152.
CHAMBER SURVEYS. In Pennsylvania, false and
fraudulent pretenses of surveys of public lands by'
surveyors. Schraeder Min. & Mfg. Co. v. Packer,
129 U.S. 688, 9 S.Ct. 385, 32 L.Ed. 760.
CHAMBER, WIDOW'S. A portion of the effects
of a deceased person, reserved for the use of his
widow, and consisting of her apparel, and the
furniture of her bed-chamber, is called in London
the "widow's chamber." 2 Bl.Comm. 518.
This custom in London of reserving her apparel
and furniture for the widow of a freeman was
abolished by 19 & 20 Vict. c. 94.
CHAMBERDEKINS, or CHAMBER DEACONS.
In old English Jaw. Certain poor Irish scholars,
clothed in mean habit, and living under no rule;
also beggars banished from England. 1 Hen. V.
cc. 7, 8. Wharton.
CHAMBERLAIN. Keeper of the chamber. Orig-
inally the chamberlain was the keeper of the
treasure chamber (camera) of the prince or
state; otherwise called "treasurer." Cowell.
The name of several high officers of state in
England, as the lord great chamberlain of Eng-
land, lord chamberlain of the household, chamber-
lain of the exchequer. Cowell; Blount.
The, word is also used in some American cities
as the title of an officer corresponding to "treas-
urer."
CHAMBERLARIA. Chamberlainship; the office
of a chamberlain. Cowell.
CHAMBERS.
In Practice
The private room or office of a judge; any
place in which a judge hears motions, signs pa-
pers, or does other business pertaining to his
office, when he is not holding a session of court.
Business so transacted is said to be done "in
chambers." Quoted with approval in Chapman v.
Chattooga Oil-Mill Co., 22 Ga.App. 446, 96 S.E.
579, 580. See, also, Atchison, T. & S. F. Ry. Co. v.
Long, 122 Okl. 86, 251 P. 486, 491; Hoskins v.
Baxter, 64 Minn. 226, 66 N.W. 969; In re Verdigris
Conservancy Dist., 131 Kan. 214, 289 P. 966, 968.
The term is also applied, in England, to the private
office of a barrister.
In International Law
Portions of the sea cut off by lines drawn from
one promontory to another, or included within
lines extending from the point of one cape to the
next, situate on the sea-coast of the same nation,
and which are claimed by that nation as asylums
for merchant vessels, and exempt from the opera-
tions of belligerents.
CHAMBERS OF THE KING. See King's Cham-
bers.
CHAMBIUM. In old English law. Change, or
exchange. Bract. fols. 117, 118.
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CHAMBRE
CHAMBRE DEPEINTE. A name anciently given
to St. Edward's chamber, called the "Painted
Chamber," destroyed by fire with the houses of
parliament.
CHAMFER. A small gutter, furrow, or groove;
the slope or bevel produced by cutting off the edge
of anything which was originally right angled.
Syracuse Chilled Plow Co. v. Robinson, C.C.N.Y.,
35 F. 502, 503.
CHAMOTTE. A clay which has been burned to
an extent which deprives it of further shrinkage
on being again subjected to heat. Panzl v. Battle
Island Paper & Pulp Co., D.C.N.Y., 132 F. 607,
609. As used in the arts, see Id., C.C.A.N.Y., 138
F. 48, 50.
CHAMP DE MAI. (Lat. Campus Maii.) The
field or assembly of May. The national assembly
of the Franks, held in the month of May.
CHAMP DE MARS. (Lat. Campus Martii.) The
field or assembly of March. The national assem-
bly of the Franks, held in the month of March, in
the open air.
CHAMPART. In French law. The grant of a
piece of land by the owner to another, on condition
that the latter would deliver to him a portion of
the crops. 18 Toullier, n. 182.
CHAMPERT.
In old English law. A share or division of land;
champerty.
In old Scotch law. A gift or bribe, taken by any
great man or judge from any person, for delay of
just actions, or furthering of wrongous actions,
whether it be lands or any goods movable. Skene.
CHAMPERTOR. In criminal law. One who makes
or brings pleas or suits, or causes them to be
moved or brought, either directly or indirectly, and
sues them at his proper costs, upon condition of
having a part of the gains or of the land in dis-
pute. One guilty of champerty. St. 33 Edw. I, c.
2; In re Aldrich, 86 Vt. 531, 86 A. 801, 802.
CHAMPERTOUS. Of the nature of champerty;
affected with champerty.
The conveyance of land which is in the adverse posses-
sion of another is "champertous". Reynolds v. Thomas
Forman Co., 295 Ky. 41, 174 S.W.2d 132, 134.
CHAMPERTY. A bargain by a stranger with a
party to a suit, by which such third person under-
takes to carry on the litigation at his own cost and
risk, in consideration of receiving, if successful, a
part of the proceeds or subject sought to be re-
covered. Small v. Mott, 22 Wend., N.Y., 405; Gil-
man v. Jones, 87 Ala. 691, 5 So. 785, 7 So. 48, 4
L.R.A. 113; Jamison Coal & Coke Co. v. Goltra,
C.C.A.Mo., 143 F.2d 889, 895, 154 A.L.R. 1191. An
agreement between owner of claim and volunteer
that latter may collect claim at his own expense
and divide proceeds. Gibson v. Gillespie, 4 W.W.
Harr. (Del.) 331, 152 A. 589, 593.
The purchase of an interest in a thing in dispute,
with the object of maintaining and taking part in
the litigation. 7 Bing. 378.
"Maintenance" consists in maintaining, supporting, or
promoting the litigation of another. "Champerty" is a
bargain to divide the proceeds of litigation between the
owner of the liquidated claim and a party supporting or
enforcing the litigation. Draper v. Lebec, 219 Ind. 362, 37
N.E.2d 952, 956.
CHAMPION. A person who fights a combat in
his own cause, or in place of another. The per-
son who, in the trial by battel, fought either for
the tenant or demandant. 3 Bl.Comm. 339; Brac-
ton, 1. 4, t. 2, c. 12.
A person who engages in any contest; a com-
batant; a fighter; one who acts or speaks in be-
half of a person, or a cause; defender; an ad-
vocate. Egan v. Signal Pub. Co., 140 La. 1069, 74
So. 556, 558.
CHAMPION OF THE KING OR QUEEN. An
ancient officer, whose duty it was at the corona-
tion to challenge "that, if any man shall deny the
king's title to the crown, he is there ready to de-
fend it in single combat." Wharton.
CHANCE. Absence of explainable or controllable
causation; accident; fortuity; hazard; result or
issue of uncertain and unknown conditions or
forces; risk; unexpected, unforeseen, or unintend-
ed consequence of an act. The opposite of inten-
tion, design, or contrivance.
But it has been held that there is a wide difference
between chance and accident. Harless v. U. S., Morris,
Iowa, 169, 173.
CHANCE BARGAIN. The entering into a con-
tract for better or worse, accompanied by the
taking of chances as to the true facts and situation
of the thing or article bargained about. Marr v.
Lawson, 290 Ky. 342, 161 S.W.2d 42, 44.
CHANCE-MEDLEY. In criminal law. A sudden
affray. This word is sometimes applied to any
kind of homicide by misadventure, but in strict-
ness it is applicable to such killing only as happens
in defending one's self. 4 Bl.Comm. 184.
CHANCE VERDICT. See Verdict.
CHANCEL. In ecclesiastical law. The part of a
church in which the communion table stands; it
belongs to the rector or the impropriator. 2
Broom & H. Comm. 420.
CHANCELLOR. In American law, this is the
name given in some states to the judge (or the
presiding judge) of a court of chancery.
In England, besides being the designation of the chief
judge of the court of chancery, the term is used as the title
of several judicial officers attached to bishops or other
high dignitaries and to the universities. The title is also
used in some of the dioceses of the Protestant Episcopal
Church in the United States to designate a member of the
legal profession who gives advice and counsel to the bishop
and other ecclesiastical authorities.
In Scotland, this title is given to the foreman of an
assize or jury. Bisph.Eq. 7.
An officer bearing this title is to be found in some coun-
tries of Europe, and is generally invested with extensive
political authority.
Chancellor of a Cathedral
In English ecclesiastical law. One of the qucrtuor per-
sonce, or four chief dignitaries of the cathedrals of the old
foundation.
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CHANTER
Chancellor of a Diocese
In ecclesiastical law, the officer appointed to assist a
bishop in matters of law, and to hold his consistory courts
for him. 1 Bl.Comm. 382; 2 Steph.Comm. 672.
Chancellor of a University
In English law. The official head of a university.
Chancellor of the Duchy of Lancaster
In English law. An officer before whom, or his deputy,
the court of the duchy chamber of Lancaster is held.
Hob. 77; 3 Bl.Comm. 78.
Chancellor of the Exchequer
In English law. A high officer of the crown, who for-
merly sat in the exchequer court. Cowell. In modern
times his duties are such as pertain to a minister of state
charged with the management of the national revenue and
expenditure. 2 Steph.Com. 467.
Chancellor of the Order of the Garter and
Other Military Orders
In England, an officer who seals the commissions and the
mandates of the chapter and assembly of the knights,
keeps the register of their proceedings, and delivers their
acts under the seal of their order.
Chancellor, the Lord high
In England, the highest judicial functionary in the king-
dom.
He exercises many functions and powers over and above
the jurisdiction which he exercises in his judicial capacity
in the supreme court of judicature, of which he is the
head. Wharton.
Vice-Chancellor
In English law. A judge of the court of chancery, acting
as assistant to the lord chancellor, and holding a separate
court. 3 Steph.Comm. 418.
CHANCELLOR'S COURTS IN THE TWO UNI-
VERSITIES. In English law. Courts of local
jurisdiction, resembling borough courts, in and for
the two universities of Oxford and Cambridge in
England. 3 Bl.Comm. 83; Odgers, C.L. 1030; 12
East, 12; 13 East, 635; 15 East, 634; 10 Q.B. 292.
CHANCER. To adjust according to principles of
equity, as would be done by a court of chancery.
Cent. Dict.
The practice arose in parts of New England when the
courts, without equity jurisdiction, were compelled to act
upon equitable principles. See Lewiston v. Gagne, 89 Me.
395, 36 A. 629, 56 Am.St.Rep. 432; In re Appel, Mass., 90
C.C.A. 172, 163 F. 1002, 20 L.R.A.,N.S., 76.
CHANCERY. Equity; equitable jurisdiction; a
court of equity; the system of jurisprudence ad-
ministered in courts of equity. Kenyon v. Kenyon,
3 Utah, 431, 24 P. 829. See Court of Chancery.
CHANGE. As a noun. An alteration; a modifica-
tion or addition; substitution of one thing for an-
other. Exchange of money against money of a
different denomination. Also small coin. Also an
abbreviation of exchange.
As a verb. Alter; cause to pass from one place
to another; exchange; make different; put one
thing in place of another; vacate.
CHANGE OF BENEFICIARY. A divesting of
beneficial interest held by one person and a vesting
of that interest in another. Goldman v. Moses,
287 Mass. 393, 191 N.E. 873, 874.
CHANGE OF DOMICILE. Change of abode or
residence and intention to remain. In re Fischer's
Estate, 151 Misc. 74, 271 N.Y.S. 101. Shenton v.
Abbott, 178 Md. 526, 15 A.2d 906, 908, 909.
CHANGE OF GRADE. Usually understood as an
elevation or depression of the surface of a street,
or a change of the natural contour of its' face so
as to facilitate travel over it. McCabe v. City of
New York, 155 App.Div. 262. 140 N.Y.S. 127. 131.
It is essential that there shall have been a previously
established grade and that a new grade be physically
made. Gas Engine & Power Co. v. City of New York, 166
App.Div. 297, 151 N.Y.S. 310, 313; Berglar v. University
City, Mo.App., 190 S.W. 620, 623.
CHANGE OF LOCATION. Removal from old to
new location. Weber County v. Ritchie, 98 Utah
272, 96 P.2d 744.
CHANGE OF VENUE. Properly speaking, the
removal of a suit begun in one county or district
to another county or district for trial, though the
term is also sometimes applied to the removal of a
suit from one court to another court of the same
county or district. Felts v. Railroad Co., 195 Pa.
21, 45 A. 493; State v. Wofford, 119 Mo. 375, 24 S.
W. 764.
CHANGER. An officer formerly belonging to
the king's mint, in England, whose business was
chiefly to exchange coin for bullion brought in by
merchants and others.
CHANNEL. The bed in which the main stream
of a river flows, rather than the deep water of the
stream as followed in navigation. Bridge Co. v.
Dubuque County, 55 Iowa, 558, 8 N.W. 443. See
The Oliver, D.C.Va., 22 F. 849; Iowa v. Illinois,
147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55.
But the term is sometimes used to designate the custom-
ary and traveled fairway. The Arlington, C.C.A.N.Y., 19
F.2d 285, 286, 54 A.L.R. 101. It may also be used as a
generic term applicable to any water course, whether a
river, creek, slough, or canal. McKissick Cattle Co. v.
Alsaga, 41 Cal.App. 380, 182 P. 793, 797. The "channel" of
a river is to be distinguished from a "branch." U. S. v.
Hutchings, D.C.Okl., 252 F. 841, 844.
Main Channel
That bed of the river over which the principal
volume of water flows. St. Louis & St. P. Packet
Co. V. Keokuk & H. Bridge Co., C.C.Iowa, 31 F.
757. Compare State of Oklahoma v. State of
Texas, 258 U.S. 574, 42 S.Ct. 406, 414, 66 L.Ed. 771.
The main channel of a navigable stream, called for as a
boundary between states, means the "thalweg," or deepest
and most navigable channel as it then existed. Whiteside
v. Norton, C.C.A.Minn., 205 F. 5, 9.
Natural Channel
The channel of a stream as determined by the
natural conformation of the country through which
it flows. See Larrabee v. Cloverdale, 131 Cal. 96,
63 P. 143. The floor or bed on which the water
flows, and the banks on each side thereof as carved
out by natural causes. Pima Farms Co. v. Proctor,
30 Ariz. 96, 245 P. 369, 372.
CHANTER. The chief singer in the choir of a
cathedral. Mentioned in 13 Eliz. c. 10.
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CHANTRY
CHANTRY. A church or chapel endowed with
lands for the maintenance of priests to say mass
daily for the souls of the donors. Termes de la
Ley; Cowell.
CHAPEL. A place of worship; a lesser or in-
ferior church, sometimes a part of or subordinate
to another church. Webster. Rex v. Nixon, 7 Car.
& P. 442; In re Atkinson's Will, 120 Misc. 186, 197
N.Y.S. 831, 832.
Chapel of Ease
In English ecclesiastical law. A chapel built in
aid of original church for parishioners who had
fixed their residence at some distance. 3 Steph.
Comm. 151.
Free Chapels
So called from their freedom or exemption from
all ordinary jurisdiction.
Private Chapels
Chapels owned by private persons, and used by
themselves and their families. 2 Steph.Comm.
745.
Proprietary Chapels
In English law. Those belonging to private
persons who have purchased or erected them with
a view to profit or otherwise.
Public Chapels
In English law, chapels founded later than the
church for parishioners who fixed their residence
at a distance; and chapels so circumstanced were
described as "chapels of ease." 3 Steph.Comm.
(7th Ed.) 745.
CHAPELRY. The precinct and limits of a chapel.
The same thing to a chapel as a parish is to a
church. Cowell; Blount; Termes de la Ley.
CHAPERON. A hood or bonnet anciently worn
by the Knights of the Garter; also a little es-
cutcheon fixed in the forehead of horses drawing a
hearse at a funeral. Wharton.
CHAPITRE. A summary of matters to be in-
quired of or presented before justices in eyre,
justices of assise, or of the' peace, in their sessions.
Also articles delivered by the justice in his charge
to the inquest. Brit. c. iii.
CHAPLAIN. An ecclesiastic who performs divine
service in a chapel; but it more commonly means
one who attends upon a king, prince, or other per-
son of quality, for the performance of clerical
duties in a private chapel. 4 Coke, 90. A clergy-
man officially attached to a ship of war, to an
army, (or regiment,) or to some public institution,
for the purpose of performing divine service.
Webster.
CHAPMAN. An itinerant vendor of small wares.
A trader who trades from place to place. Say. 191,
192.
CHAPTER. In ecclesiastical law. A congregation
of ecclesiastical persons in a cathedral church, con-
sisting of canons, or prebendaries, whereof the
dean is the head, all subordinate to the bishop.
And they are termed "capitulum," as a kind of
head, instituted not only to assist the bishop but
also anciently to rule and govern the diocese in the
time of vacation. Burn, Diet.; Coke, Litt. 103.
CHARACTER. Class or division to which claim
belongs, Jackson State Nat. Bank of Jackson,
Miss., v. Merchants' Bank & Trust Co. of Jackson,
Miss., 177 La. 975, 149 So. 539, 541.
The aggregate of the moral qualities which
belong to and distinguish an individual person;
the general result of the one's distinguishing at-
tributes.
That moral predisposition or habit, or aggregate of
ethical qualities, which is believed to attach to a person,
on the strength of the common opinion and report concern-
ing him. A person's fixed disposition or tendency, as evi-
denced to others by his habits of life, through the mani-
festation of which his general reputation for the posses-
sion of a character, good or otherwise, is obtained. Keith
v. State, 127 Tenn. 40, 152 S.W. 1029, 1030.
The estimate attached to an individual or thing the com-
munity. Biddle v. Riley, 118 Ark. 206, 176 S.W. 134, 137,
L.R.A.1915F, 992; Rogers v. State, 126 Tex.Cr.R. 39, 70
S.W.2d 188, 189; H. L. Shaffer & Co. v. Prosser, 99 Colo.
335, 62 P.2d 1161, 1133. The opinion generally entertained
of a person derived from the common report of the people
who are acquainted with him. Smith v. State, 88 Ala. 73,
7 So. 52; State v. Turner, 36 S.C. 534, 15 S.E. 602.
Although "character" is often used in the sense of "rep-
utation," Garrison v. State, 217 Ala. 322, 116 So. 705;
Commonwealth v. Harvie, 345 Pa. 516, 28 A.2d 926, 927;
the terms are distinguishable, State v. Taylor, 267 Mo. 41,
183 S.W. 299, 301; Commonwealth v. Webb, 252 Pa. 187,
97 A. 189, 192.
Though, in a subjective sense, character, general char-
acter, and general report or reputation are the same. Pow-
ers v. Leach, 26 Vt. 278; and though general character has
always been proved by proving general reputation. Leve-
rich v. Frank, 6 Or. 213. See, also, Richardson v. State, 94
Tex.Cr.R. 616, 253 S.W. 273, 277. "Character" is what a
man is, and "reputation" is what he is supposed to be.
State v. Pickett, 202 Iowa, 1321, 210 N.W. 782, 783. "Char-
acter" depends on attributes possessed, and "reputation"
on attributes which others believe one to possess. Bills v.
State, 187 Ind. 721, 119 N.E. 465. The former signifies real-
ity and the latter merely what is accepted to be reality at
present. State v. Leabo, 120 Or. 160, 249 P. 363.
CHARBON. Another name for anthrax (q. v.).
CHARGE, v. To impose a burden, duty, obligation,
or lien; to create a claim against property; to
claim; to demand; to accuse; to instruct a jury
on matters of law. To impose a tax, duty, or
trust. Ex parte Horn, D.C.Wash., 292 F. 455, 457.
In commercial transactions, to bill or invoice.
George M. Jones Co. v. Canadian Nat. Ry. Co., D.
C.Mich., 14 F.2d 852, 855.
A jury is "charged" with duty of trying prisoner (or, as
otherwise expressed, with his fate or his "deliverance") as
soon as they are impaneled and sworn ; this is a different
matter from "charging" the jury in the sense of giving
them instructions. Tomasson v. State, 112 Tenn. 596, 79
S. W. 803. And see Keith v. Commonwealth, 197 Ky. 362,
247 S. W. 42, 44.
To load, as a firearm. People v. Limeberry, 298
Ill. 355, 131 N.E. 691, 696.
CHARGE, n. An incumbrance, lien, or claim; a
burden or load; an obligation or duty; a liability;
an accusation. Darling v. Rogers, 22 Wend. (N.
Y.) 491. Custody. Randazzo v. U. S., C.C.A.Mo.,
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CHARITABLE
300 F. 794, 797; In re Boulware's Will, 258 N.Y.S.
522, 144 Misc. 235. Price. Aiken Mills v. United
States, D.C.S.C., 53 F.Supp. 524, 526. Rate. Bor-
ough of Mechanicsburg v. Valley Rys., 109 Pa.
Super. 48, 165 A. 541, 542.
Conversion' of electrical energy into chemical
energy within a cell or storage battery. Elliott
Works v. Frisk, D.C.Iowa, 58 F.2d 820, 822.
In Common-law Practice
The final address by judge to jury before verdict, in
which he sums up the case, and instructs jury as to the
rules of law which apply to its various issues, and which
they must observe. The term also applies to the address
of court to grand jury, in which the latter are instructed
as to their duties.
In Contracts
An obligation. Com.Dig. "Rent," c. 6; 2 Ball & B. 223;
Termes de la Ley. An undertaking to keep the custody of
another person's goods. State v. Clark, 86 Me. 194, 29 A.
984.
In Criminal Law
An accusation or oral charge. People v. Ross, 235 Mich.
433, 209 N.W. 663, 666; Haggard v. First Nat. Bank of
Mandan, 72 N.D. 434, 8 N.W.2d 5, 9. A formal complaint,
information, or indictment. People v. Lepori, 35 Cal.App.
60, 169 P. 692, 694. A count. State v. Thornton, 142 La.
797, 77 So. 634, 636; State v. Pucketty, 39 N.M. 511, 50
P.2d 964, 965. Accused or arraigned. Code Cr.Proc. § 57.
People v. Hickox, 10 N.Y.S.2d 318, 320, 170 Misc. 354.
In Equity Pleading
An allegation in the bill of matters which disprove or
avoid a defense which it is alleged the defendant is sup-
posed to pretend or intend to set up. Story, Eq.P1. § 31;
Cooper, Eq.P1. 11; 1 Dan.Ch.Pr. 372, 1883, n.; 11 Ves.Ch.
574.
In Equity Practice
A written statement presented to a master in chancery
by a party of the items with which the opposite party
should be debited or should account for, or of the claim of
the party making it. A charge may embrace the whole
liabilities of the accounting party. Hoff.Mast. 36.
In Scotch Law
The command of the king's letters to perform some act;
as a charge to enter heir. Also a messenger's execution,
requiring a person to obey the order of the king's letters;
as a charge on letters of horning, or a charge against a
superior. Bell.
In the Law of Wills
A responsibility or liability imposed by the testator upon
a devisee personally, or upon the land devised. Potter v.
Gardner, 12 Wheat. 498, 6 L. Ed. 706; Boal v. Metropolitan
Museum of Art of City of New York, C.C.A.N.Y., 298 F.
894, 908. A pecuniary burden. In re Clark's Will, 37
N.Y.S.2d 522, 523, 179 Misc. 75.
A devise for beneficial enjoyment of devisee subject to
payment of a sum of money or performance of a particular
duty. Howells State Bank v. Pont, 113 Neb. 181, 202 N.W.
457, 459.
General Charge
The charge or instruction of the court to the jury upon
the case, as a whole, or upon its general features and char-
acteristics.
Public Charge
A person whom it is necessary to support at public
expense by reason of poverty, insanity and poverty, disease
and poverty, or idiocy and poverty. Wallis v. U. S., ex rel.
Mannara, C.C.A.N.Y., 273 F. 509, 511. As used in Immigra-
tion Act Feb. 5, 1917, § 19, 8 U.S.C.A. § 155, one who pro-
duces a money charge on, or an expense to, the public for
support and care. Ex parte Kichmiriantz, D.C.Cal., 283 F.
697, 698. As so used, the term is not limited to paupers or
those liable to become such, but includes those who will
not undertake honest pursuits, or who are likely to become
periodically the inmates of prisons. Ex parte Horn, D.C.
Wash., 292 F. 455, 457. But see Ng Fung Ho v. White,
C.C.A.Cal., 266 F. 765, 769.
Special Charge
A charge or instruction given by the court to the jury,
upon some particular point or question involved in the
case, and usually in response to counsel's request for such
instruction.
CHARGE AND DISCHARGE. Under former equi-
ty practice, in taking an account before a master,
a written statement of items for which plaintiff
asked credit and a counter-statement, exhibiting
claims or demands defendant held against plain-
tiff.
CHARGE DES AFFAIRES, or CHARGE D'AF-
FAIRES. The title of a diplomatic representative
of inferior rank. In re Baiz, 135 U.S. 403, 10 S.Ct.
854, 34 L.Ed. 222; Du Pont v. Pichon, 4 Da11. 321, 1
L.Ed. 851.
CHARGE—OFF. Anything manifesting intent to
eliminate an item from assets. Rubinkam v. Com-
missioner of Internal Revenue, C.C.A.7, 118 F.2d
148, 149.
CHARGE—SHEET. A paper kept at a police-
station to receive each night the names of the
persons brought and given into custody, the nature
of the accusation, and the name of the accuser in
each case. Wharton.
CHARGE TO ENTER HEIR. In Scotch law. A
writ commanding a person to enter heir to his
predecessor within forty days, otherwise an action
to be raised against him as if he had entered.
CHARGEABLE. This word, in its ordinary ac-
ceptation, as applicable to the imposition of a duty
or burden, signifies capable of being charged, sub-
ject to be charged, liable to be charged, or proper
to be charged. Gilfillan v. Chatterton, 38 Minn.
335, 37 N.W. 583.
CHARGEANT. Weighty; heavy; penal; expen-
sive. Kelham.
CHARGES. The expenses which have been in-
curred, or disbursements made, in connection with
a contract, suit, or business transaction. Spoken
of an action, it is said that the term includes more
than what falls under the technical description of
"costs."
Instructions. Standard v. Texas Pacific Coal &
Oil Co., Tex.Civ.App., 47 S.W.2d 443, 447.
CHARGING LIEN. A lien is a charging lien
where the debt is a charge upon the specific prop-
erty although it remains in the debtor's posses-
sion. See, also, Attorney's Lien,
CHARGING ORDER. See Order.
CHARITABLE. Having the character or purpose
of a charity (q. v.).
The term is sometimes deemed to be synonymous with
"eleemosynary," Hamburger v. Cornell University, 166
N.Y.S. 46, 48, 99 Misc. 564; with "benevolent," In re Dol's
Estate, 182 Cal. 159, 187 P. 428, 431; with "beneficent,"
People v. Thomas Walters Chapter of Daughters of Ameri-
can Revolution, 311 Ill. 304, 142 N.E. 566.
CHARITABLE BEQUEST. A bequest is charit-
able if its aims and accomplishments are of
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CHARITABLE
religious, educational, political, or general social
interest to mankind and if the ultimate recipients
constitute either the community as a whole or an
unascertainable and indefinite portion thereof. In
re Henderson's Estate, 17 Cal.2d 853, 112 P.2d
605, 607, 609. See, also, Charity.
CHARITABLE CORPORATION. One that freely
and voluntarily ministers to the physical needs of
those pecuniarily unable to help themselves. In re
Rockefeller's Estate, 177 App.Div. 786, 165 N.Y.S.
154, 158. One which, by its powers, or usage, is
charged with administering charitable relief. In
re Beekman's Estate, 196 App.Div. 681, 188 N.Y.S.
178, 179. One organized for the purpose, among
other things, of promoting the welfare of man-
kind at large, or of a community, or of some class
from a part of it indefinite as to number of in-
dividuals. In re Dol's Estate, 186 Cal. 64, 198 P.
1039.
CHARITABLE GIFT. See Charity.
CHARITABLE HOSPITAL OR SANITARIUM.
One maintained for gratuitous treatment of sick
and needy. Moss v. Youngblood, 187 Ga. 188, 200
S.E. 689, 694. One not maintained for .a gain,
profit or private advantage. In re Farmers' Union
Hospital Ass'n of Elk City, 190 Okl. 661, 126 P.2d
244, 246. One operated by means of contributions,
Bedford v. Colorado Fuel & Iron Corporation,
102 Colo. 538, 81 P.2d 752, 759, 760. One when
charges collected are no more than needed for
maintenance. Gundry v. R. B. Smith Memorial
Hospital Ass'n, 293 Mich. 36, 291 N.W. 213, 214, 215.
One when income from patients able to pay is used
for maintenance or extension of facilities devoted
to charitable purposes. Benton County v. Allen,
170 Or. 481, 133 P.2d 991, 992, 993, 995. One which
does not deny treatment to persons unable to pay
though it charges those able to pay. Commis.
sioner of Internal Revenue v. Battle Creek, C.C.A.
Fla., 126 F.2d 405, 406.
CHARITABLE INSTITUTION. One supported in
whole or in part at public expense or by charity.
City of Vicksburg v. Vicksburg Sanitarium, 117
Miss. 709, 78 So. 702. One for the relief of a cer-
tain class of persons, either by alms, education, or
care. Utica Trust & Deposit Co. v. Thompson, 87
Misc. 31, 149 N.Y.S. 392, 398. One administering a
public or private charity; an eleemosynary insti-
tution. St. Albans Hospital v. Town of Enosburg,
96 Vt. 389, 120 A. 97, 99. One performing service
of public good or welfare without profit. Society
of Cincinnati v. Exeter, 92 N.H. 348, 31 A.2d 52,
55.
CHARITABLE ORGANIZATION. One which has
no capital stock and no provision for making divi-
dends and profits, but derives its funds mainly
from public and private charity, and holds them
in trust for the objects and purposes expressed in
its charter. Congregational Sunday School & Pub-
lishing Soc. v. Board of Review, 290 Ill. 108, 125
N.E. 7, 9. One conducted not for profit, but for
promotion of welfare of others. Stearns v. Asso-
ciation of Bar of City of New York, 154 Misc. 71,
276 N.Y.S. 390.
CHARITABLE SCHOOL OR EDUCATIONAL IN-
STITUTION. A college preparatory school operat-
ed without profit some of whose students paid no
tuition, College Preparatory School for Girls of
Cincinnati v. Evatt, 144 Ohio St. 408, 59 N.E.2d 142,
145. One devoted to public education without
private gain. Southern Methodist University v.
Clayton, 142 Tex. 179, 176 S.W.2d 749, 750. One
supported wholly or in part by public subscriptions
or endowment, New York University v. Taylor,
251 App.Div. 444, 296 N.Y.S. 848, 849; or by private
charity. Bodenheimer v. Confederate Memorial
Ass'n, D.C.Va., 5 F.Suppe 526, 528,
CHARITABLE SOCIETY. An educational insti-
tution is a charitable society. In re Cooper's Es-
tate, 229 Iowa 921, 295 N.W. 448, 454.
CHARITABLE USES OR PURPOSES. Originally
those enumerated in the statute 43 Eliz. c. 4, and
afterwards those which, by analogy, come within
its spirit and purpose. Boyle, Char. 17. See, also,
Charity.
CHARITABLE TRUST. A fiduciary relationship
subjecting holder of property to deal with it for a
charitable purpose. In re White's Estate, 340 Pa.
92, 16 A.2d 394, 396, 397. A trust for benefit of
public or of some portion thereof. Delaware
Trust Co. v. Fitzmaurice, Del.Ch., 31 A.2d 383, 388.
Its characteristics are the expression of a definite
charitable purpose and the indefiniteness of the
beneficiaries. Woodcock v. Wachovia Bank &
Trust Co., 214 N.C. 224, 199 S.E. 20.
A cemetery corporation is a "charitable trust". De
Geeter v. Wolklin, 133 N.J.Eq. 510, 42 A.2d 561, 562. So,
too, a Christian church. Burgle v. Muench, 65 Ohio App.
176, 29 N.E.2d. 439, 440.
CHARITY. The word "charity" may be used in
a subjective or an objective sense.
It may mean or apply to:
Accomplishment of some social interest, In re Tollinger's
Estate, 349 Pa. 393, 37 A.2d 500, 501, 502. Act or feeling of
benevolence, Southern Methodist Hospital and Sanatorium
of Tucson v. Wilson, 51 Ariz. 424, 77 P.2d 458. Advance-
ment of purposes beneficial to public, Rabinowitz v. Woll-
man, 174 Md. 6, 197 A. 566, 568. All good affections men
ought to bear towards each other. Morice v. Bishop of
Durham, 9 Ves. 399. All which aids man and seeks to
improve his condition. Waddell v. Young Women's Chris-
tian Ass'n, 133 Ohio St. 601, 15 N.E.2d 140, 142. Almsgiv-
ing, In re Rathbone's Estate, 11 N.Y.S.2d 506, 527, 170
Misc. 1030. Amelioration of persons in unfortunate cir-
cumstances, Second Nat. Bank v. Second Nat. Bank, 171
Md. 547, 190 A. 215, 111 A.L.R. 711. An institution founded
by a gift and intended for public use as a hospital, library,
school, or museum, Southern Methodist Hospital and Sana-
torium of Tucson v. Wilson, 51 Ariz. 424, 77 P.2d 458, 460,
461. Any purpose in which the public has an interest, Col-
lins v. Lyon, Inc., 181 Va. 230, 24 S.E.2d 572, 580. Any
purpose of general benefit untainted by motives of private
gain. Stearns v. Association of Bar of City of New York,
276 N.Y.S. 390, 395, 154 Misc. 7L Any scheme or effort to
better the condition of society or any considerable part
thereof. Tharpe v. Central Georgia Council of Boy Scouts
of America, 185 Ga. 810, 196 S.E. 762, 764, 116 A.L.R. 373.
Assistance to persons in establishing. Bruce v. Young
Men's Christian Ass'n, 51 Nev. 372, 277 P. 798, 799; assist-
ance to the needy. Benefit of handcraftsmen. Benefit of
an indefinite number of persons, Morgan v. National Trust
Bank of Charleston, 331 M. 182, 162 N.E. 888, 890. Benefit
of minister. In re Edge's Estate, 288 N.Y.S. 437, 440, 159
Misc. 505.  Benevolence, philanthropy, and good will.
Santa Fe Lodge No. 460, B. P. 0. E., v. Employment Sec.
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Commission, 49 N.M. 149, 159 P.2d 312, 315. Benevolent or
philanthropic, Beckwith v. Parish, 69 Ga. 569; Price v.
Maxwell, 28 Pa. 2.3. Dissemination of knowledge; Chris-
tian love, Boruch v. SS. Peter & Paul's Orthodox Russian
Church, 111 N.J.L. 116, 166 A. 723. Conferring advantages
of a social character. La Societe Francaise De Bienfai-
sance Mutuelle v. California Employment Commission, 56
Cal.App.2d 534, 133 P.2d 47, 51, 52. Eleemosynary, Collier
v. Lindley, 203 Cal. 641, 266 P. 526, 528. General public
use which extends to the rich as well as to the poor. Ham-
ilton v. Corvallis General Hospital Ass'n, 146 Or. 168, 30
P.2d 9, 14. Gift for benefit of indefinite number, St. Louis
Union Trust Co. v. Burnet, C.C.A., 59 F.2d 922, 926. Gift
to the general public use. Maretick v. South Chicago Com-
munity Hospital, 297 Ill. App. 488, 17 N.E.2d 1012, 1014.
Gift without consideration or expectation of return, State
v. Texas Mut. Life Ins. Co. of Texas, Tex.Civ.App., 51
S.W.2d 405, 410. Improvement of man. Boston Symphony
Orchestra v. Board of Assessors of City of Boston, Mass.,
1 N.E.2d 6, 9. Improvement of spiritual, mental, social and
physical conditions. Andrews v. Young Men's Christian
Ass'n of Des Moines, 226 Iowa 374, 284 N.W. 186, 192.
Lessening burdens of government. Stork v. Schmidt, 129
Neb. 311, 261 N.W. 552, 554. Physical, mental or moral
betterment, In re Tollinger's Estate, 349 Pa. 393, 37 A.2d
500, 501, 502. Promotion of government or municipal pur-
poses, Powers v. First Nat. Bank, Tex.Civ.App., 137 S.W.2d
839, 842. Promotion of happiness of man. Old Colony
Trust Co. v. Welch, D.C.Mass., 25 F.Supp. 45, 48. Promo-
tion of philanthropic and humanitarian purposes. Jackson
v. Phillips, 14 Allen, Mass., 556. Promotion of well-doing
and well-being of social man. Krause v. Peoria Housing
Authority, 370 Ill. 356, 19 N.E.2d 193, 199. Promotion or fos-
tering science, education, enlightenment, benefit, of man-
kind, Irwin v. Swinney, D.C.Mo., 44 F.2d 172, 174. Prop-
erty held for public purposes. St. Louis Union Trust Co.
v. Burnet, C.C.A.8, 59 F.2d 922, 927. Public benefit, con-
venience, utility, or comfort, Camp v. Presbyterian Soc. of
Sackets Harbor, 173 N.Y.S. 581, 584, 105 Misc. 139. Recla-
mation of criminals. Relief of persons in unfortunate cir-
cumstances, Second Nat. Bank v. Second Nat. Bank, 171
Md. 547, 190 A. 215, 111 A.L.R. 711. Religious, educational,
benevolent, and humanitarian objects. In re Jordan's
Estate, 329 Pa. 427, 197 A. 150. Services accorded to the
needy. Unselfish things as are wont to be done by those
who are animated by love. Bok v. McCaughn, C.C.A.Pa.,
42 F.2d 616, 619. What is done out of good will and a
desire to add to the improvement of moral, mental, and
physical welfare of public. Old Colony Trust Co. v. Welch,
D.C.Mass., 25 F.Supp. 45, 48. Whatever is given for love
of God or love of your neighbor, free from every consid-
eration that Is personal, private, or selfish. Vidal v. Gir-
ard, 2 How. 128, 11 L.Ed. 205, appr. Price v. Maxwell, 28
Pa. 35. Whatever proceeds from sense of moral duty or
feeling of kindness and humanity for relief or comfort of
another, Doyle v. Railroad Co., 118 Mass. 195, 198, 19 Am.
Rep. 431. Uncertainty regarding beneficiaries is distinct
feature. Goode's Adm'r v. Goode, 238 Ky. 620, 38 S.W.2d
691, 694.
Foreign Charity
One created or endowed in a state or country
foreign to that of the domicile of the benefactor.
Taylor's Ex'rs v. Trustees of Bryn Mawr College,
34 N.J.Eq. 101.
Public Charity
A charity wherein the benefit is conferred on
indefinite persons composing the public or some
part of the public. Continental Illinois Nat. Bank
& Trust Co. v. Harris, 359 Ill. 86, 194 N.E. 250, 253.
A gift to be applied consistently with existing laws for
the benefit of an indefinite number of persons, by bringing
their minds under the influence of education or religion,
by relieving their bodies from disease, suffering, or con-
straint, or by assisting them to establish themselves in
life, or by erecting and maintaining public buildings or
works, or otherwise lessening the burdens of government.
Robinson v. Crutcher, 277 Mo. 1, 209 S.W. 104, 105.
A "purely public charity" which Legislature may
exempt from taxation is a charity indiscriminately dis-
pensed to some portion or group of public where ends
accomplished are wholly benevolent and are accomplished
without profit or gain and, the beneficiaries are saved
from becoming burdens upon society and the state. City
of Houston v. Scottish Rite Benev. Ass'n, 111 Tex. 191, 230
S. W. 978, 981.
Pure Charity
One which is entirely gratuitous, and which
dispenses its benefits without any charge or pecu-
niary return whatever. See In re Lenox's Estate,
Sur., 9 N.Y.S. 895, 31 St.R. 959; Kentucky Female
Orphan School v. Louisville, 100 Ky. 470, 36 S.W.
921, 40 L.R.A. 119.
CHARLATAN. One who pretends to more knowl-
edge or skill than he possesses; ' a "quack."
Brinkley v. Fishbein, C.C.A.Tex., 110 F.2d 62, 64.
CHARLEY. A familiar nickname or substitute
for "Charles." Carroll v. State, 24 Okl.Cr. 26, 215
P. 797, 798.
CHARRE OF LEAD. A quantity consisting of 36
pigs of lead, each pig weighing about 70 pounds.
CHART. The word "chart," as used in the copy-
right law, does not include sheets of paper exhibit-
ing tabulated or methodically arranged informa-
tion. Taylor v. Gilman, C.C.N.Y., 24 Fed. 632.
CHARTA.
In Old English Law
A charter or deed; an instrument written and
sealed; the formal evidence of conveyances and
contracts. Also any signal or token by which an
estate was held.
The term came to be applied, by way of eminence, to
such documents as proceeded from the sovereign, granting
liberties or privileges, and either where the recipient of
the grant was the whole nation, as in the case of Magna
Charta, or a public body, or private individual, in which
case it corresponded to the modern word "charter."
In the Civil Law
Paper, suitable for the inscription of documents
or books; hence, any instrument or writing. See
Dig. 32, 52, 6; Nov. 44, 2.
Charta Communis
In old English law. An indenture; a common or mutual
charter or deed; one containing mutual covenants, or
involving mutuality of obligation; one to which both par-
ties might have occasion to refer, to establish their respec-
tive rights. Bract. fols. 33b, 34.
Charta Cyrographata (or Chyrographata)
In old English law. A chirographed charter; a charter
executed in two parts, and cut through the middle, (scin-
ditur per medium,) where the word "cyrographum," or
"chirographum," was written in large letters. Bract fol.
34; Fleta, lib. 3, c. 14, § 3. See Chirograph.
Charta De Foresta
A collection of the laws of the forest, made in the 9th
Hen. III, and said to have been originally a part of Magna
Charta.
The charta de foresta was called the Great Charter of the
woodland population, nobles, barons, freemen, and slaves,
loyally granted by Henry III. early in his reign (A.D.1217).
Inderwick, King's Peace 159; Stubb's Charters 847. There
is a difference of opinion as to the original charter of the
forest similar to that which exists respecting the true and
original Magna Carta (q. v.), and for the same reason, viz.,
that both required repeated confirmation by the kings,
despite their supposed inviolability. This justifies the
remark of recent historians as to the great charter that
"this theoretical sanctity and this practical insecurity are
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CHARTA
Shared with 'the Great Charter . of Liberties' by the Char-
ter of the Forest which was issued in 1217." 1 Poll. &
Maitl. 158. It is asserted with great positiveness by Inder-
wick that no forest charter was ever granted by King
John, but that Henry III. issued the charter of 1217 (which
he puts in the third year of the reign, which, however, only
commenced Oct. 28, 1216), in pursuance of the promises of
his father; and Lord Coke, referring to it as a charter on
which the lives and liberties of the woodland population
depended, says that it was confirmed at least thirty times
between the death of John and that of Henry V. ; 4
Co. Inst. 303.
Webster, under the title Magna Charta, says that the
name is applied to the charter granted in the 9th Hen.
III. and confirmed by Edw. I. Prof. Maitland, in speaking
of Magna Carta, refers to "the sister-charter which defined
the forest law" as one of the four documents which, at the
death of Henry III., comprised the written law of England.
1 Soc. England 410. Edward I. in 1297 confirmed "the
charter made by the common consent of all the realm in
the time of Henry III. to be kept in every point without
breach." Inderwick, King's Peace 160; Stubb's Charters
486. The Century Dictionary refers to this latter charter
of Edw. I. as the Charter of .the Forest; but it was, as
already shown, only a confirmation of it, and a comparison
of the authorities leaves little if any doubt that the date
was as above stated and the history as here given. Its
provisions may be found in Stubb's Charters and they are
summarized by Inderwick, in his work above cited.
Charta De Una Parte
A deed-poll; a deed of one part. Formerly used to dis-
tinguish a deed poll—that is, an agreement made by one
party only—from a deed inter partes. Co.Litt. 229.
Charta Partita
(Literally, a deed divided.) A charter-party. 3 Kent,
Comm. 201.
CHARTA DE NON ENTE NON VALET. A deed
of a thing not in being is not valid. Co.Litt. 36.
CHARTA NON EST NISI VESTIMENTUM
DONATIONIS. A deed is nothing else than the
vestment of a gift. Co.Litt. 36.
CHAUSSIEE. Fr. A levee of earth, made to re-
tain the water of a river or pond; a levee made
in low, wet, and swampy places to serve as a road.
Armas v. New Orleans, 3 La. 86, 99.
CHARTIE LIBERTATUM. The charters (grants)
of liberties. These are Magna Charta and Charta
de Foresta.
CHARTARUM SUPER FIDEM, MORTUIS TEST-
IBUS, AD PATRIAM DE NECESSITUDINE RE-
CURRENDUM EST. Co.Litt. 36. The witnesses
being dead, the truth of charters must of neces-
sity be referred to the country, i. e., a jury.
CHARTE. Fr. A chart, or plan, which mariners
use at sea.
CHARTE-PARTIE. Fr. In French marine law.
A charter-party.
CHARTEL. A variant of "cartel" (q. v.).
CHARTER, v. In mercantile law. To hire or
lease a vessel for a voyage. Thus, a "chartered"
is distinguished from a "seeking" ship. 7 East, 24.
CHARTER, n. An instrument emanating from
the sovereign power, in the nature of a grant,
either to the whole nation, or to a class or portion
of the people, or to a colony or dependency, and
assuring to them certain rights, liberties, or
powers. Such was the "Great Charter" or "'Magna
Charta," and such also were the charters granted
to certain of the English colonies in America. See
Story, Const. § 161; 1 Bla.Comm. 108.
A charter differs from a constitution, in that the former
is granted by the sovereign, while the latter is established
by the people themselves.
A city's organic law. Hudson Motor Car Co. v.
City of Detroit, 282 Mich. 69, 275 N.W. 770, 773,
113 A.L.R. 1472.
An act of a legislature creating a corporation,
or creating and defining the franchise of a corpo-
ration. Baker v. Smith, 41 RI. 17, 102 A. 721,
723; Bent v. Underdown, 156 Ind. 516, 60 N.E.
307. Also a corporation's constitution or organic
law; Schultz v. City of Phcenix, 18 Ariz. 35, 156
P. 75, 76; C. J. Kubach Co. v. McGuire, 199 Cal.
215, 248 P. 676, 677; that is to say, the articles of
incorporation taken in connection with the law
under which the corporation was organized; Chi-
cago Open Board of Trade v. Imperial Bldg. Co.,
136 Ill.App. 606; In re Hanson's Estate, 38 S.D. 1,
159 N.W. 399, 400. The authority by virtue of
which an organized body acts. Ryan v. Witt, Tex.
Civ.App., 173 S.W. 952, 959. A contract between
the state and the corporation, between the corpo-
ration and the stockholders, and between the
stockholders and the state. Bruun v. Cook, 280
Mich. 484, 273 N.W. 774, 777.
In Old English Law
A deed or other written instrument under seal;
a conveyance, covenant, or contract. Cowell;
Spelman; Co.Litt. 6; 1 Co. 1; F.Moore 687.
In Old Scotch Law
A disposition made by a superior to his vassal,
for something to be performed or paid by him. 1
Forb.Inst. pt. 2, b. 2, c. 1, tit. 1. A writing which
contains the grant or transmission of the feudal
right to the vassal. Ersk.Inst. 2, 3, 19.
Blank Charter
A document given to the agents of the crown
in the reign of Richard II. with power to fill up as
they pleased.
Charter of Pardon
In English law. An instrument under the great seal, by
which a pardon is granted to a man for a felony or other
offense.
Charter of the Forest
See Charts de foresta.
Charter Rolls
Ancient English records of royal charters, granted
between the years 1199 and 1516.
CHARTER-HOUSE. Formerly a convent of Car-
thusian monks in London; now a college founded
and endowed by Thomas Sutton. The governors
of the charter-house are a corporation aggregate
without a head, president, or superior, all the
members being of equal authority. 3 Steph.
Comm. (7th Ed.) 14, 97.
CHARTER-LAND. In English law. Otherwise
called "book-land." Property held by deed under
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certain rents and free services. It, in effect,
differs nothing from the free socage lands, and
hence have arisen most of the freehold tenants,
who hold of particular manors, and owe suit and
service to the same. 2 Bl.Comm. 90.
CHARTER-PARTY. A contract by which a ship,
or some principal part thereof, is let to a merchant
for the conveyance of goods on a determined
voyage to one or more places. Fish v. Sullivan,
40 La.Ann. 193, 3 So. 730; Vang v. Jones & Laugh-
lin Steel Corporation, D.C.Pa., 7 F.Supp. 475, 478.
A specific and express contract by which the owner lets
a vessel or some particular part thereof to another person
for a specified time or use. Jones & Laughlin Steel Corpo-
ration v. Vang, C.C.A.Pa., 73 F.2d 88, 91.
A written agreement by which a ship-owner lets the
whole or a part to a merchant for the conveyance of goods
in consideration of payment of freight. Maude & P. Mer.
Shipp. 227; Parker v. Washington Tug & Barge Co., 85
Wash. 575, 148 P. 896, 898. 3 Kent Comm. 201.
The contract by which a ship owner may either let the
capacity or burden of the ship, continuing the employment
of the owner's master, crew, and equipments, or may sur-
render the entire ship to the charterer, who then provides
them himself. The master or part owner may be a char-
terer. Civil Code Cal. § 1959; Civil Code Dak. § 1127.
"A charter party may be a contract for the lease of the
vessel, or for a special service to be rendered by the owner
of the vessel. Where, as is very frequently the case, the
shipowner undertakes to carry a cargo, to be provided by
the charterer, on a designated voyage, the arrangement is
* * * a mere contract of affreightment." United States
v. Hvoslef, 237 U. S.' 1, 35 S.Ct. 459, 460, 59 L. Ed. 813, Ann.
Cas.1916A, 286.
CHARTERED SHIP. A ship hired or freighted;
a ship which is the subject-matter of a charter-
party.
CHARTERER. In mercantile law. One who char-
ters (i. e., hires or engages) a vessel for a voyage;
a freighter. 2 Steph.Comm. 184; 3 Kent, Comm.
137; Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 15
L.R.A. 262.
CHARTIS REDDENDIS. (For returning the char-
ters.) An ancient writ which lay against one who
had charters of feoffment intrusted to his keeping
and refused to deliver them. Reg.Orig. 159.
CHARTOPHYLAX. In old European law. A
keeper of records or public instruments; a chartu-
lary; a registrar. Spelman.
CHARLIE. In old English law. A plow. Bestes
des char g es; beasts of the plow.
CHASE. The liberty or franchise of hunting,
one's self, and keeping protected against all other
persons, beasts of the chase within a specified dis-
trict, without regard to the ownership of the land.
2 Bl.Comm. 414-416.
The act of acquiring possession of animals ferce
naturce by force, cunning, or address.
A privileged place for preservation of deer and
beasts of the forest. It is commonly less than a
forest and of larger compass than a park. Every
forest is a chase, but every chase is not a forest.
It differs from a park in that it is not inclosed,
yet it must have certain metes and bounds. Man-
wood, 49: Termes de la Ley.
Common Chase
In old English law. A place where all • alike
were entitled to hunt wild animals.
CHASSIS. As applied to a motor car,- the rec-
tangular metal framework, as distinguished from
its body and seats, but including its accessories
for propulsion, as the tanks, motor, etc., and gen-
eral running gear. Kansas City Automobile
School Co. v. Holcker-Elberg Mfg. Co., Mo.App.,
182 S.W. 759, 761.
CHASTE. Never voluntarily having had unlawful
sexual intercourse. Marchand v. State, 113 Neb.
87, 201 N.W. 890, 891. An unmarried woman who
has had no carnal knowledge of men. New v.
State, 141 Tex.Cr.R. 536, 148 S.W.2d 1099, 1101.
One who falls from virtue and afterwards reforms is
chaste within the meaning of the seduction statutes. Wood
v. State, 48 Ga. 288, 15 Am.Rep. 664; People v. Weinstock,
27 N.Y.Cr.R. 53, 140 N.Y.S. 453, 456.
CHASTE CHARACTER. Denoting purity of mind
and innocence of heart;—not limited merely to un-
lawful sexual intercourse. State v. Wilcoxen, 200
Iowa, 1250, 206 N.W. 260, 261.
As used in statutes, means actual personal virtue. It
may include the character of one who was formerly
unchaste but is reformed. Boak v. State, 5 Iowa, 430;
People v. Nelson, 153 N.Y. 90, 46 N.E. 1040, 60 Am.St.Rep.
592.
CHASTITY. Purity; continence.
It means that virtue which prevents the unlawful inter-
course of the sexes; the state of purity or abstinence from
unlawful sexual connection, People v. Kehoe, 123 Cal. 224,
55 P. 911, 69 Am.St.Rep. 52; actual personal virtue and
character, and not a mere external reputation for chastity.
People v. Weinstock, 27 N.Y.Cr.R. 53, 140 N.Y.S. 453, 457.
See Chaste.
CHATTEL. An article of personal property; any
species of property not amounting to a freehold
or fee in land. People v. Holbrook, 13 Johns., N.Y.,
94; U. S. v. Sischo, C.C.A.Wash., 270 F. 958, 961.
A thing personal and movable. Castle v. Castle,
C.C.A.Haw., 267 F. 521, 522. Things which in law
are deemed personal property, they are divisible
into chattels real and chattels personal.
The term "chattels" is a more comprehensive one than
"goods," as it includes animate as well as inanimate prop-
erty. 2 Chit.Bl.Comm. 383, note. In a devise, however,
they may be of the same import. Shep.Touch. 447; 2
Fonbl. Eq. 335.
Chattel Interest
An interest in corporeal hereditaments less than
a freehold. 2 Kent, Comm. 342.
Personal Chattels
Movable things. 2 Bl.Comm. 387; 2 Kent, 340;
Co.Litt. 48a; 4 Co. 6; In re Gay, 5 Mass. 419;
Miller v. Hirschmann, 170 Md. 145, 183 A. 259,
263.
Evidences of debt are chattels personal. Greene Line
Terminal Co. v. Martin, 122 W.Va. 483, 10 S.E.2d 901, 906.
Real Chattels
Such as concern, or savor of, the realty, such as
leasehold estates; interests issuing out of, or
annexed, to, real estate; such chattel interests as
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devolve after the manner of realty. Mozley &
Whitley; 2 Bl.Comm. 386; In re Dalton's Estate,
183 Iowa, 1013, 168 N.W. 332, 334; Intermountain
Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704, 706,
122 A.L.R. 647; Keystone Pipe & Supply Co. v.
Crabtree, 174 Okl. 562, 50 P.2d 1086, 1088. An
interest in real estate less than freehold, Lincoln
Nat. Bank & Trust Co. of Fort Wayne v. Nathan,
215 Ind. 178, 19 N.E.2d 243, 249.
CHATTEL MORTGAGE. A mortgage on chattels.
O'Connor v. Hassett, 207 Iowa, 155, 222 N.W. 530.
A transfer of some legal or equitable right in per-
sonal property or creation of a lien thereon as
security for payment of money or performance of
some other act, Miller v. Eagle, Star & British
Dominions Ins. Co., Limited, of London, England,
United States Branch, New York, 146 S.C. 123, 143
S.E. 663, 666; Columbia Cas. Co. v. Sodini, 159
Kan. 478, 156 P.2d 524, 528; Anglo-American Mill
Co. v. First Nat. Bank, 76 Colo. 57, 230 P. 118,
120; subject to defeasance on performance of the
conditions. Personal Finance Co. of Providence v.
Henley-Kimball Co., R.I., 1 A.2d 121, 124, 117 A.L.
R. 1476; Thomas, Mortg. 427.
An instrument of sale of personalty conveying title td
mortgagee with terms of defeasance; and, if the terms of
redemption are not complied with, then, at common law,
the title becomes absolute. Stewart v. Slater, 6 Duer
(N. Y.) 99; In re Packard Press, C.C.A.N.Y., 5 F.2d 633,
635. A bill of sale with a defeasance clause incorporated in
it. Monongahela Ins. Co. v. Batson, 111 Ark. 167, 163 S.W.
510, 511; Bank of Dillon v. Murchison, C.C.A.4, 213 F. 147,
151.
An absolute pledge, to become an absolute interest if not
redeemed at a fixed time. Cortelyou v. Lansing, 2 Caines,
Cas., N.Y., 200, per Kent, Ch.
A conditional sale of chattel as security for debt or per-
formance of some other obligation. Jones, Chat. Mortg.
§ 1. Allen v. Steiger, 17 Colo. 552, 31 P. 226; Adler, Salz-
man & Adler v. Ammerman Furniture Co., 100 Conn. 223,
123 A. 268, 269.
A pledge is distinguished from a chattel mortgage in
that in a mortgage, the title is transferred; in a pledge,
the possession. Jones, Mortg. § 4; Security Trust Co. v.
Edwards, 90 N.J.Law, 558, 101 A. 384, 385, L.R.A.1917F,
273; Thompson v. Dollivdr, 132 Mass. 103; Thoen v. First
Nat. Bank, 199 Minn. 47, 271 N.W. 111, 113; In pledge, the
pawnee has only a special property in the thing deposited.
Evans v. Darlington, 5 Blackf., Ind., 320.
A conditional sale is distinguished from a chattel mort-
gage in that the purchaser has merely a right to purchase,
and no debt or obligation exists on the part of the ven-
dor. Weathersly v. Weathersly, 40 Miss. 462, 90 Am.Dec.
344; Gomez v. Kamping, 4 Daly, N.Y., 77. In mortgage,
title passes; in conditional sale possession is transferred
and title retained. Kettwig v. Aero Inv. Co., 191 Minn. 500,
254 N.W. 629.
CHATTEL REAL. All interests in real estate of
lesser dignity than a freehold estate, and which
lesser estates or interest descended under the rules
for devaluation of personal property and not as
freehold or fee simple estates. Intermountain
Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704, 705,
122 A.L.R. 647.
CHAUD-MEDLEY. A homicide committed in the
heat of an affray and while under the influence of
passion; it is thus distinguished from chance-
medley, which is the killing of a man in a casual
affray in self-defense. 4 Bl.Comm. 184. It has
been said, however, that the distinction is of no
great importance. See 1 Russ.Crimes, 660.
CHAUFFEUR. An operator who directly or in-
directly receives compensation for operating mo-
tor vehicle. Turner v. State, 226 Ala. 269, 146 So.
601. Operators who drive jitneys in cities and
towns for hire, Day v. Bush, 18 La.App. 682, 139
So. 42, 44. Person employed or paid to operate,
drive and attend car. People v. Fulton, 96 Misc.
663, 162 N.Y.S. 125, 126; Des Moines Rug Cleaning
Co. v. Automobile Underwriters, 215 Iowa 246,
245 N.W. 215, 217; State v. Depew, Md., 175 Md.
274, 1 A.2d 626, 627.
Test whether person is a chauffeur is whether he operat-
ed motor vehicle in whole or part-time employment, wheth-
er he was at such time an employee, servant, agent, or
independent contractor, and whether he was paid for his
service. Maryland Casualty Co. v. Cronholm, D.C.Tex., 32
F.Supp. 375, 377.
CHAUMPERT. A kind of tenure mentioned in a
patent of 35 Edw. III. Cowell; Blount.
CHAUNTRY RENTS. Money paid to the crown
by the servants or purchasers of chauntry-lands.
See Chantry.
CHEAT, v. To deceive and defraud. State v.
Mastin, 277 Mo. 495, 211 S.W. 15, 18; Moore v.
State, 92 Ind.App. 150, 168 N.E. 202, 203. It nec-
essarily implies a fraudulent intent. Clolinger v.
Callahan, 204 Ky. 33, 263 S.W. 700, 702.
The words "cheat and defraud" usually mean to induce
a person to part with the possession of property by reason
of intentionally false representations relied and acted upon
by such person to his harm. Antonio Pepe Co. v. Apuzzo, 98
Conn. 807, 120 A. 681, 682; They include not only the crime
of false pretenses, but also all civil frauds. Hinshaw v.
State, 188 Ind. 147, 122 N.E. 418, 419. They include all
tricks, devices, artifices, or deceptions used to deprive an-
other of property or other right. State v. Parker, 114
Conn. 354, 158 A. 797, 800.
CHEAT, n. Swindling; defrauding. "Deceitful
practices in defrauding or endeavoring to defraud
another of his known right, by some willful device,
contrary to the plain rules of common honesty."
Hawk.P.C. b. 2, c. 23, § 1. "The fraudulent obtain-
ing the property of another by any deceitful and
illegal practice or token (short of felony) which
affects or may affect the public." Steph.Crim.
Law, 93.
Cheats, punishable at common law, are such
cheats (not amounting to felony) as are effected
by deceitful or illegal symbols or tokens which
may affect the public at large, and against which
common prudence could not have guarded. 2
Whart.Crim.Law, § 1116; 2 East, P.C. 818; Von
Mumm v. Frash, C.C.N.Y., 56 F. 836; State v.
Parker, 43 N.H. 85.
CHEATERS, or ESCHEATORS, were officers ap-
pointed to look after the king's escheats, a duty
which gave them great opportunities of fraud and
oppression, and in consequence many complaints
were made of their misconduct. Hence it seems
that a cheater came to signify a fraudulent per-
son, and thence the verb to cheat was derived.
Wharton.
CHECK, v. To control or restrain; to hold within
bounds. To verify or audit; to verify, guard, or
examine the work of another. Marsh v. State, 125
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Ark. 282, 188 S.W. 815, 816; State v. Hearn, 115
Ohio St. 340, 154 N.E. 244, 245. Particularly used
with reference to the control or supervision of
one department, bureau, office, or person over
another.
As used in initiative statute, to compare names of signer
of petition against official registration list. Halgren v.
Welling, 91 Utah, 16, 63 P.2d 550, 554.
CHECK, n. A commercial device intended for use
as a temporary expedient for actual money, and
generally designed for immediate payment, and
not for circulation. Kennedy v. Jones, 140 Ga. 302,
78 S.E. 1069, 1070, Ann.Cas.1914D, 355; Merchants'
Nat. Bank v. Bank, 10 Wall. 647, 19 L.Ed. 1008.
A draft for payment of money. Wright v. Loring, 351
Ill. 584, 184 N.E. 865, 866. An order for payment of money.
Glennan v. Rochester Trust & Safe Deposit Co., 209 N.Y.
12, 102 N.E. 537, 539, 52 L.R.A.,N.S., 302, Ann.Cas.1915A,
441; Weiss v. Fenwick, 111 N.J.Eq. 385, 162 A. 609, 611;
Anderson v. National Bank of Tacoma, 146 Wash. 520, 264
P. 8, 10. A request to pay money, Standard Factors Cor-
poration v. Manufacturers Trust Co., 182 Misc. 701, 50 N.Y.
S.2d 10, 13.
A draft or order upon a bank or banking-house, pur-
porting to be drawn upon a deposit of funds, for the pay-
ment at all events of a certain sum of money to a certain
person therein named, or to him or his order, or to bearer,
and payable instantly on demand. 2 Daniel, Neg.Inst. §
1566; Bank v. Wheaton, 4 R.I. 33; Economy Fuse & Mfg.
Co. v. Standard Electric Mfg. Co., 359 Ill. 504, 194 N.E.
922, 924.
A bill of exchange drawn on a bank payable on demand.
Commercial & Savings Bank Co. of Bellafontaine, Ohio, v.
Citizens' Nat. Bank of Franklin, 68 Ind. App. 417, 120 N.E.
670, 674; Bell-Wayland Co. v. Bank of Sugden, 95 Okl. 67,
218 P. 705, 706; Thomas v. Berger, 118 Pa.Super. 422, 180
A. 32. A check differs from an ordinary bill of exchange
in that it is drawn on a bank or bankers, and is payable
immediately on presentment, without days of grace; it is
payable immediately on presentment, and no acceptance as
distinct from payment is required; it is supposed to be
drawn upon a previous deposit'of funds, and is an absolute
appropriation of so much money in the hands of the bank-
ers to the holder of the check. Merchants' Nat. Bank v.
State Nat. Bank, 10 Wall. 647, 19 L.Ed. 1008; People v.
Compton, 123 Cal. 403, 56 P. 44.
The term "check," within the ordinary meaning of that,
term, includes "draft," the only distinction being that in
a draft the drawer is a bank, while in the ordinary check
the drawer is an individual. Leach v. Mechanics' Say.
Bank, 202 Iowa, 899, 211 N.W. 506, 508, 50 A.L.R. 388.
A check is a contract. Deal v. Atlantic Coast Line R.
Co., 225 Ala. 533, 144 So. 81, 82, 86 A.L.R. 455; Roff v.
Crenshaw, dal.App., 159 P.2d 661, 662.
Cashier's Check
One issued by an authorized officer of a bank directed to
another person, evidencing that the payee is authorized
to demand and receive upon presentation from the bank the
amount of money represented by the check. State v. Tyler
County State Bank, Tex.Com.App., 277 S.W. 625, 627, 42 A.
L.R. 1347. A form of a check by which the bank lends its
credit to the purchaser of the check, the purpose being to
make it available for immediate use in banking circles.
Duke v. Johnson, 127 Wash. 601, 221 P. 321, 322. A bill of
exchange drawn by a bank upon itself, and accepted by the
act of issuance. Anderson v. Bank of Tupelo, 135 Miss. 351,
100 So. 179; In its legal effect, it is the same as a certifi-
cate of deposit, certified check or draft. Montana-Wyo-
ming Ass'n of Credit Men v. Commercial Nat. Bank of
Miles City, 80 Mont. 174, 259 P. 1060, 1061. An acknowl-
edgment of a debt drawn by bank upon itself. In re
Liquidation of State Bank of Binghamton, 152 Misc. 579,
274 N.Y.S. 41.
Crossed Check
A check crossed with two lines, between which are either
the name of a bank or the words "and company," in full
or abbreviated. In the former case, the banker on whom
it is drawn must not pay the money for the check to any
other than the banker named; in the latter case, he must
not pay it to any other than a banker. 2 Steph.Comm.
118, note c. And see 7 Exch. 389; [19031 A.C. 240; Farm-
ers' Bank v. Johnson, King & Co., 134 Ga. 486, 68 S.E. 85,
30 L.R.A.,N.S., 697.
Forged Check
A check on which the maker's name is forged-not one
which has forged indorsements. Kleinman v. Chase Nat.
Bank of City of New York, .124 Misc. 173, 207 N.Y.S. 191,
193. See, also, International Union Bank v. National Sure-
ty Co., 245 N.Y. 368, 157 N.E. 269, 270. A check which is
created as a result of a criminal act of forgery. Samples
v. Milton County Bank, 34 Ga.App. 248, 129 S.E. 170.
Memorandum Check
A check given by a borrower to a lender, for the amount
of a short loan, with the understanding that it is not to be
presented at the bank, but will be redeemed by the maker
himself when the loan falls due. This understanding is
evidenced by writing the word "Mem." on the check. This
is not unusual among merchants. See U. S. v. Isham, 17
Wall. 502, 21 L.Ed. 728; Franklin Bank v. Freeman, 16
Pick., Mass., 539; Story, Pr.Notes § 499.
Traveler's " Check
See that title.
CHECK-BOOK, A book containing blank checks
on a particular bank or banker.
CHECK-OFF SYSTEM. Deduction by employer
from pay of employees of sums and payment of
such sums to union. Pacific Mills v. Textile Work-
ers' Union of America, Local No. 254, 197 S.C.
330, 15 S.E.2d 134, 136, 135 A.L.R. 497; Local 60
of Industrial Union of Marine and Shipbuilding
Workers of America v. Welin Davit and Boat
Corporation, 133 N.J.Eq. 551, 33 A.2d 708, 709;
Borderland Coal Corporation v. International Or-
ganization of United Mine Workers of America, D.
C.Ind., 275 F. 871, 873.
CHECK-ROLL. In English law. A list or book,
containing the names of such as are attendants
on, or in the pay of, the queen or other great
personages, as their household servants.
CHECKER. The old Scotch form of exchequer.
CHECKERBOARD SYSTEM. This term, with
reference to entries on lands, means one entry
built on another, and a third on the second. Se-
quatchie & South Pittsburg Coal & Iron Co. v.
Tennessee Coal, Iron & R. Co., 131 Tenn, 221, 174
S.W. 1122.
CHEFE, In Anglo-Norman law. Were or were-
gild; the price of the head or person, (capitis
pretium.)
CHEMERAGE. In old French law. The privi-
lege or prerogative of the eldest. A provincial
term derived from chemier, (q. v.) Guyot, Inst.
CHEMIER. In old French law. The eldest born.
A term used in Poitou and other places. Guyot,
Inst.
CHEMIN. Fr. The road wherein every man
goes; the king's highway. Called in law Latin
via regia. Termes de la Ley; Cowell; Spelman,
Gloss.
CHEMIS. In old Scotch law. A chief dwelling
or mansion house.
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CHEQUE. A variant of check (q. v.).
CHEROKEE NATION. One of the civilized In-
dian tribes. See Indians; Indian Tribe.
CHEVAGE. A sum of money paid by villeins to
their lords in acknowledgment of their bondage.
It was exacted for permission to marry, and also permis-
sion to remain without the dominion of the lord. When
paid to the king, It was called subjection. Termes de la
Ley; Co.Litt. 140 a;, Spelman, Gloss.
Chevage seems also to have been used for a
sum of money yearly given to a man of power for
his countenance and protection as a chief or lead-
er. Termes de la Ley; Cowell.
CHEVANTIA. In old records. A loan or advance
of money upon credit. Cowell.
CHEVISANCE. An agreement or composition;
an end or order set down between a creditor
or debtor; an indirect gain in point of usury,
etc.; also an unlawful bargain or contract. Whar-
ton.
CHEVITLE. In old records. Pieces of ground,
or heads at the end of plowed lands. Cowell.
CHEZE. A homestead or homesfall which is ac-
cessory to a house.
CHICANE. Swindling; shrewd cunning. The use
of tricks and artifice.
CHICKASAW NATION. One of the civilized In-
dian tribes. See Indians; Indian Tribe.
CHIEF. One who is put above the rest. Princi-
pal; leading; head; eminent in power or impor-
tance; the best or most important or valuable of
several; paramount; of leading importance.
Declaration in chief is a declaration for the prin-
cipal cause of action. 1 Tidd, Pr. 419.
Examination in chief is the first examination of
a witness by the party who produces him. 1
Greenl.Ev. § 445.
Tenant in chief. See "Chief, tenant in," infra.
CHIEF BARON. The presiding judge of the Eng-
lish court of exchequer; answering to the chief
justice of other courts. 3 Bl.Comm. 44; 3 Steph.
Comm. 401.
CHIEF CLERK. The principal clerical officer of
a bureau or department, who is generally charged,
subject to the direction of his superior officer,
with the superintendence of the administration of
the business of the office.
CHIEF .JUDGE. In some states, the presiding
judge, as in the New York Court of Appeals and
the Maryland Court of Appeals. The term is also
used in 1 Tyler (Vt.) with "assistant" judge for
the puisne. It is likewise applied to the judge of
the London bankruptcy court. In general, the
term is equivalent to "presiding justice" or "pre-
siding magistrate." Bean v. Loryea, 81 Cal. 151,
22 P. 513.
CHIEF JUSTICE. The presiding, eldest, or prin-
cipal judge of a court of justice.
CHIEF JUSTICE OF ENGLAND. The presiding
judge in the king's bench division of the high court
of justice, and, in the absence of the lord chan-
cellor, president of the high court, and also an
ex officio judge of the court of appeals. The full
title is "Lord Chief Justice of England."
CHIEF JUSTICE OF THE COMMON PLEAS.
In England. The presiding judge in the court of
common pleas, and afterwards in the common
pleas division of the high court of justice, and
one of the ex officio judges of the high court of
appeal.
CHIEF JUSTICIAR. In old English law. A high
judicial officer and special magistrate, who pre-
sided over the aula regis of the Norman kings,
and who was also the principal minister of state,
the second man in the kingdom, and, by virtue of
his office, guardian of the realm in the king's ab-
sence. 3 B1.Comm. 38.
CHIEF LORD. The immediate lord of the fee,
to whom the tenants were directly and personally
responsible. Burton, R.P. 317.
CHIEF MAGISTRATE. The head of the executive
department of government of a nation, state, or
municipal corporation. McIntire v. Ward, 3
Yeates, Pa., 424.
CHIEF OFFICE. Office of paramount importance
or the leading office. City of Newark v. New Jer-
sey Inv. Co., 18 N.J.Misc. 182, 11 A.2d 730, 731.
CHIEF PLEDGE. The borsholder, or chief of the
borough. Spelman.
CHIEF RENTS. In English law. Were the an-
nual payments of freeholders of manors; and
were also called "quit-rents," because by paying
them the tenant was freed from all other rents
or services. 2 Bl.Comm. 42.
CHIEF, TENANT IN. In English feudal law.
All the land in the kingdom was supposed to be
holden mediately or immediately of the king, who
was styled the "Lord Paramount," or "Lord Above
All;" and those that held immediately under him,
in right of his crown and dignity, were called his
tenants "in capite" or "in chief," which was the
most honorable species of tenure, but at the same
time subjected the tenant to greater and more
burdensome services than inferior tenures did.
Brown. One who held directly of the king. 1
Washb.R.P. *19.
CHIEFRIE. In feudal law. A small rent paid to
the lord paramount.
CHILD. See Children.
CHILDREN. Progeny
Child of tender age or years
Such a child must be less than 14 years old.
Barnhill's Adm'r v. Mt. Morgan Coal Co., D.C.Ky.,
215 F. 608, 610. A minor more than 15 years of
age is not included within the meaning of the
term. Paulk & Fossil v. Lee, 31 Ga.App. 629, 121
S.E. 845.
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CHILDREN
Child's Part
A "child's part," which a widow, by statute in
some states, is entitled to take in lieu of dower
or the provision made for her by will, is a full
share to which a child of the decedent would be
entitled, subject to the debts of the estate and the
cost of administration up to and including distri-
bution. Benedict v. Wilmarth, 46 Fla. 535, 35
So. 84.
Illegitimate Child
A bastard (q. v.).
Legitimate Child
One born in lawful wedlock.
Natural Child
A bastard (q. .v.); a child born out of lawful
wedlock. But in a statute declaring that adopted
shall have all the rights of "natural" children, the
word "natural" was used in the sense of "legiti-
mate." Barns v. Allen, 9 Am.Law Reg., 0.S., 747.
In Louisiana. Illegitimate children who have been
acknowledged by the father. Civ.Code La. art.
202. In. the civil law. A child by natural relation
or procreation; a child by birth, as distinguished
from a child by adoption. Inst. 1, 11, pr.; Id. 3, 1,
2; Id. 3, 8 pr. See, also, Conner v. Parsley, 192
Ky. 827, 234 S.W. 972, 974; Middletown Trust Co.
v. Gaffey, 96 Conn. 61, 112 A. 689, 691.
A child by concubinage, in contradistinction to
a child by marriage. Cod. 5, 27.
Posthumous Child
One born after the father's death.
Quasi Posthumous Child
In the civil law. One who, born during the life
of his grandfather, or other male ascendant, was
not his heir at the time he made his testament,
but who by the death of his father became his
heir in his life-time. Inst. 2, 13, 2; Dig. 28, 3, 13.
The word "child" in statutes often means either child
or children. Cunningham v. Dunn, 84 W.Va. 593, 100 S.E.
410, 411. See Children.
"Children" is ordinarily a word of description, limited to
persons standing in the same relation, and has the same
effect as if all the names were given. Rowley v. Currie, 94
N.J.Eq. 606, 120 A. 653, 656.
The words "child or children," in their usual sense, are
words of purchase. Phillips v. Mercantile Trust Co. of
Baltimore, 195 A. 394, 395, 173 Md. 290; Kelly v. Kelly,
176 Ark. 548, 3 S.W.2d 305; Deener v. Watkins, 191 Ark.
776, 87 S.W.2d 994, 995; they may, however, be used as
words of limitation, Bonds v. Hutchison, 199 S.C. 197, 18 S.
E-2d 661, 662, 663; Crawford v. Withrow, 314 Pa. 497, 171
A. 894, 895; Young v. Munsey Trust Co., 72 App.D.C. 73,
111 F.2d 514, 515.
The terms "child" .or "children" may include or apply
to :
Adopted children, Dyer v. Lane, 202 Ark. 571, 151 S.W.2d
678, 680; Ex parte Cline, 213 Ala. 599, 105 So. 686, 687.,
Ryan v. Foreman, 262 Ill. 175, 104 N.E. 189; but some de-
cisions hold that adapted children are not included in ab-
sence of manifest intention, Savells v. Brown's Guardian,
187 Ky. 134, 218 S.W. 462, 463; Melek v. Curators of Uni-
versity of Missouri, 213 Mo.App. 572, 250 S.W. 614, 615;
for cases holding that "child" or "children" does not in-
clude adopted children, see Everitt v. LaSpeyre, 195 Ga.
377, 24 S.E.2d 381, 383; Moffet v. Cash, 346 Ill. 287, 178 N.
E. 658, 659; In re Sandford's Estate, 160 Misc. 898, 290 N.
Y.S. 959, 960; Adult child, Mindlin v. Consolidated Tax-
payers Mut. Ins. Co., 173 Misc. 961, 19 N.Y.S.2d 340, 342;
State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d
742, 83 A.L.R. 1393; after-born child, Westport Paper-
Board Co. v. Staples, 127 Conn. 115, 15 A.2d 1, 5; contra,
Albers v. Donovan, 371 Ill. 458, 21 N.E.2d 563, 565; all
lineal descendants. Boston Safe Deposit & Trust Co. v.
Park, 307 Mass. 255, 29 N.E.2d 977, 980; blood relations.
In re Fletcher's Estate, 103 Pa.Super. 69, 157 A. 810, 811;
child by second marriage, Nelson v. Estill, 175 Ga. 526, 165
S.E. 820, 823; child that would inherit from an intestate
parent, In re Gossett's Estate, 46 N.M. 344, 129 P.2d 56, 58,
60, 142 A.L.R. 1441; child en ventre sa mere, Valley Nat.
Bank v. Hartford Accident & Indemnity Co., 57 Ariz. 276,
113 P.2d 359, 361: Thomson v. Elliott', 152 Misc. 188, 273
N.Y.S. 898; children born in wedlock. Bell v. Phyn, 7 Ves.
458; In re Silva's Estate, 32 Ariz. 573, 261 P. 40, 41. Chil-
dren by former marriage, In re Freisinger's Will, 263 App.
Div. 970, 33 N.Y.S.2d 196, 197; children by various mar-
riag
es of parent named, McMullen v. Block, Tex.Civ.App.,
168 S.W.2d 667, 670; children in first degree. In re Brown's
Estate, 133 Misc. 587, 233 N.Y.S. 426, 430; Children regard-
less of age, Citizens' Bank of Lancaster v. Foglesong, 326
Mo. 581, 31 S.W.2d 778, 783; correlative of "parent;"
descendant or descendants of first degree, Benners v. First
Nat. Bank of Birmingham, 247 Ala. 74, 22 So.2d 435, 442;
first degree descendants, Spencer v. Title Guarantee Loan
& Trust Co., 222 Ala. 485, 132 So. 730, 731; first generation
of offspring. New York Life Ins. Co. v. Beebe, D.C.Md.,
57 F.Supp. 754, 757.
Grandchildren, Holbrook v. Shepard, 245 N.Y. 618, 157 N.
E. 882; Tucker v. Tucker, 259 Ky. 361, 82 S.W.2d 458, 459,
460; Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.
W. 770; but, ordinarily, grandchildren are not included,
Lowrey v. Le Fiore, 48 Okl. 235, 149 P. 1112, 1114, Ann.
Cas.1918E, 1001; Sabit v. Safe Deposit & Trust Co. of
Baltimore, 184 Md. 24, 40 A.2d 231, 238; In re Blodgett's
Will, 250 App.Div. 324, 294 N.Y.S. 358, 366; as used in
deeds or wills especially, the term "children" will not be
construed to mean grandchildren, unless a strong case of
intention or context requires it. Greenfield v. Lauritson,
306 Ill. 279, 137 N.E. 818, 819; Davis v. Mitchell, Tenn.
App.,. 178 S.W.2d 889, 904; In re Reed's Estate, 342 Pa. 54,
19 A.2d 365, 366.
Heirs or heirs of the body, Beall v. Beall, 331 Ill. 28, 162
N.E. 152, 154 ; Schwarz v. Rabe, 129 Kan. 430, 283 P. 642,
643 ; Conover v. Code, 184 Ind. 604, 112 N.E. 7, 12 ; Dar-
ragh v. Barmore, Tex.Com.App., 242 S.W. 714, 718; but
the intention to use "children" in the sense of "heirs"
must be made clear. Farrell v. Faries, Del., 22 A.2d 380,
384, 385. So, too, the term "heirs" may mean "children,"
Albers v. Donovan, 371 Ill. 458, 21' N.E.2d 563. 565; Lane
v. Citizen's & Southern Nat. Bank, 195 Ga. 828, 25 S.E.2d
800, 804; but the intention to so use the word must be
manifest. Welles v. Pape, 63 Ohio App. 432, 27 N.E.2d
169, 172; For cases holding that "heirs" does not mean
"children" see Erwin Nat. Bank v. Riddle, 18 Tenn.App.
561, 79 S.W.2d 1032, 1038; Triplett v. Triplett, 332 Mo. 870,
60 S.W.2d 13, 15.
Illegitimate children, State ex rel. Herbert v. Hocking
Valley Mining Co., 73 Ohio App. 483, 57 N.E.2d 236, 238;
In re Anonymous, 165 Misc. 62, 300 N.Y.S. 292; but other
decisions have held that the terms exclude illegitimate chil-
dren, Bank of Montclair v. McCutcheon, 107 N.J.Eq. 564,
152 A. 379, 380; Jacobs v. United States, C.C.A.La., 112 F.
2d 51; Gee v. Commonwealth, 263 Ky. 808, 94 S.W.2d 17,
19; illegitimate children that have been acknowledged or
adopted, Weyerhaeuser Timber Co. v. Marshall, C.C.A.
Wash., 102 F.2d 78, 81; Jenkins v. City of Los Angeles,
60 Cal.App.2d 50, 40 P.2d 45, 46; Hastings v. Rathbone,
194 Iowa, 177, 188 N.W. 960, 962, 23 A.L.R. 392; immediate
offspring or progeny, McQueen v. Stephens, Tex.Civ.App.,
100 S.W.2d 1053, 1055; In re Conant's Estate, 144 Misc.
743, 259 N.Y.S. 885; infant offspring. In re Berg's Estate,
72 N. D. 52, 4 N.W.2d 575, 580, 140 A.L.R. 1312; Issue,
Woodley v. Howse, 133 Kan. 639, 3 P.2d 475, 476; Hodge
v. Lovell's Trustee, 262 Ky. 509, 90 S.W.2d 683, 686. So
too, "issue" may mean "children." Pierson v. Jones, 108
N.J.Eq. 453, 155 A. 541, 542; In re Morningstar's Will,
143 Misc. 620, 257 N.Y.S. 240, 249. Legitimate children,
Dunlavy v. Lowrie, 372 Ill. 622, 25 N.E.2d 67 71: Town of
Plymouth v. Hey, 285 Mass. 357, 189 N.E. 100, 101; Middle-
ton v. Luckenbach S. S. Co., C.C.A.N.Y., 70 F.2d 326, 328;
303

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CHILDREN
legitimated child, Brown v. Shwinogee, 128 Okl. 149, 261
P. 920, 921; living children, In re Schuette's Estate, 138
Neb. 568, 293 N.W. 421, 422; Ward v. Ward, 176 Ga. 849,
169 S.E. 120, 121, 122; male or female, Turner v. Metropoli-
tan Life Ins. Co., 56 Cal.App.2d 862, 133 P.2d 859, 861;
Curtis v. Safe Deposit & Trust Co. of Baltimore, 178 Md.
360, 13 A.2d 546, 548; married child, Killian v. Burnham,
191 Okl. 248, 130 P.2d 538, 539; In re Drye, 250 Mich. 210,
229 N.W. 623, 625; minor or minors. Walsh v. Walsh,
Cal.App., 108 P.2d 763, 764; State v. Flath, 59 N.D. 121,
228 N.W. 847, 849; "natural-born children." In re Corr's
Estate, 338 Pa. 337, 12 A.2d 76, 78; natural offspring of
parentage, In re Wait's Estate, Sur., 42 N.Y.S.2d 735, 738,
739; offspring of either sex and of any age, Morris v. Wil-
liams, Tex.Civ.App., 92 S.W.2d 541, 544; opposite of
"adult," Miller v. Finegan, 26 Fla. 29, 7 So. 140, 6 L.R.A.
813; Potter v. Golden Rule Grocery Co., 169 Tenn. 240,
84 S.W.2d 364, 365; person under age of 18 years, State v.
Flath, 59 N. D. 121, 228 N.W. 847, 848; person under age of
majority, Wade v. State, 24 Ala.App. 176, 132 So. 71, 72;
posthumous child, Travelers Ins. Co. v. Dudley, 180 Tenn.
191, 173 S.W.2d 142, 144; posthumous, illegitimate child,
Morgan v. Susino Const. Co., 130 N.J.L. 418, 33 A.2d 607,
610.
Contra, Gierak v. Lehigh & Wilkes-Barre Coal Co., 101
Pa.Super. 397, 399; Staker v. Industrial Commission of
Ohio, 127 Ohio St. 13, 186 N.E. 616; quick child, Guiffrida
v. State, 61 Ga.App. 595, 7 S.E.2d 34, 35; sons and daugh-
ters, Kimberlin v. Hicks, 150 Kan. 449. 94 P.2d 335, 340;
Stepchildren, Newark Paving Co. v. Klotz, 85 N.J.Law,
432, 91 A. 91, 92; Travelers Ins. Co. v. E. I. Du Pont De
Nemours & Co., Del., 1 Terry 285, 9 A.2d 88, 91.
CHILDWIT, In Saxon law. The right which a
lord had of taking a fine of his bondwoman got-
ten with child without his license. Termes de la
Ley.
The custom in Essex county, England, whereby
every reputed father of a bastard child was obliged
to pay a small fine to the lord. Cowell.
CHILLING A SALE. The act of bidders or oth-
ers who combine or conspire to suppress fair com-
petition at a sale, for the purpose of acquiring the
property .at -less than its fair value. Vette v.
Hackman, 292 Mo. 138, 237 S.W. 802, 805.
CHILTERN HUNDREDS. In English law. The
offices of steward or bailiff of His Majesty's three
Chiltern Hundreds of Stoke, Desborough, and
Bonenham; or the steward of the Manor of North-
sted. Chiltern Hundreds is an appointment under
the hand and seal of the Chancellor of the Exche-
quer. May, Parl.Pr. 642.
The stewardship of the Chiltern Hundreds is a nominal
office in the gift of the crown, usually accepted by mem-
bers of the house of commons desirous of vacating their
seats. By law a member once duly elected to parliament is
compelled to discharge the duties of the trust conferred
upon him, and is not enabled at will to resign it. But by
statute, if any member accepts any office of profit from the
crown, (except officers in the army or navy accepting a new
commission,) his seat is vacated. If, therefore, any mem-
ber wishes to retire from the representation of the county
or borough by which he was sent to parliament, he applies
to the lords of the treasury for the stewardship of one of
the Chiltern Hundreds, which having received, and thereby
accomplished his purpose, he again resigns the office.
Brown.
CHIMIN. In old English law. A road, way, high-
way. It is either the king's highway (chiminus
regis) or a private way. The first is that over
which the subjects of the realm, and all others
under the protection of the crown, have free lib-
erty to pass, though the property in the soil itself
belong to some private individual; the last is that
in which one person or more have liberty to pass
over the land of another, by prescription or char-
ter. Wharton. See Chemin.
CHDIINAGE. A toll for passing on a way
through a forest; called in the civil law "peda-
gium." Cowell. See Co.Litt. 56 a; Spelman,
Gloss.; Termes de la Ley; Baldwin's Ed. of Brit-
ton, 63.
CIIIMINUS. The way by which the king and all
his subjects and all under his protection have a
right to pass, though the property of the soil of
each side where the way lieth may belong to a
private man. Cowell.
CHIMNEY MONEY, or HEARTH MONEY. A tax
upon chimneys or hearth; an ancient tax or duty
upon houses in England, now repealed. See
Hearth Money; Fuage.
CHIPPINGAVEL. In old English law. A tax
upon trade; a toll imposed upon traffic, or upon
goods brought to a place to be sold; a toll for
buying and selling. Whishaw; Blount.
CHIRGEMOT, CHIRCHGEMOT. (Also spelled
Chirgemote, Chirchgemote, Circgemote, Kirk-
mote.) In Saxon law. An ecclesiastical assembly
or court. Spelman. A synod or meeting in a
church or vestry. 4 Inst. 321; Blount; Spelman,
Gloss.; Hen. I. cc. 4, 8; Cunningh.Law Dict.
CHIROGRAPH. In Civil and Canon law. An in-
strument written out and subscribed by the hand
of the party who made it, whether the king or a
private person. Du Cange; Cowell.
In old English law. A deed or indenture; also
the last part of a fine of land, called more com-
monly, perhaps, the foot of the fine. Cruise, Dig.
t. 35, c. 2, s. 52.
An instrument of gift or conveyance attested by the sub-
scription and crosses of the witnesses, which was in Saxon
times called "chirographum," and which, being somewhat
changed in form and manner by the Normans, was by them
styled "charta." Anciently when they made a chirograph
or deed which required a counterpart, as we call it, they
engrossed it twice upon one piece of parchment contrari-
wise, leaving a space between, in which they wrote in
capital letters the word "chirograph," and then cut the
parchment in two through the middle of the word, giving
a part to each party. Cowell; 2 Bla.Comm. 296. See, also,
Charta cyrographata.
In Scotch law. A written voucher for a debt.
Bell.
CHIROGRAPHA. In Roman law. Writings ema-
nating from a single party, the debtor.
CHIROGRAPHER OF FINES. In English law.
The title of the officer of the common pleas who
engrossed fines in that court so as to be acknowl-
edged into a perpetual record. Cowell.
CHIROGRAPHUM. In Roman law. A handwrit-
ing; that which was written with a person's own
hand. An obligation which a person wrote or
subscribed with his own hand; an acknowledg-
ment of debt, as of money received, with a prom-
ise to repay. An evidence or voucher of debt; a
security for debt. Dig. 26, 7, 57, pr. A right of
action for debt.
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CHOSEN
305
CHIROGRAPHUM APUD DEBITOREM REPER-
TUM PRIESUMITUR SOLUTUM. An evidence of
debt found in the debtor's possession is presumed
to be paid. Halk.Max. 20; Bell, Dict. See 14 M.
& W. 379.
CHIROGRAPHUM NON EXTANS PR4ESUMI-
TUR SOLUTUM. An evidence of debt not exist-
ing is presumed to have been discharged. Tray.
Lat.Max. 73.
CHIROPODIST. One who treats diseases or mal-
formations of the hands or feet, especially a sur-
geon for the feet, hands, and nails; a cutter or
extractor of corns and callosities. State v. Arm-
strong, 38 Idaho 493, 225 P. 491, 33 A.L.R. 835.
CHIROPODY. The art of removing corns and
callouses. State v. Armstrong, 38 Idaho 493, 225
P. 491, 493, 33 A.L.R. 835.
CHIROPRACTIC, CHIROPRACTICS. A system
of healing that treats disease by manipulation of
the spinal column. Joyner v. State, 181 Miss. 245,
179 So. 573, 575, 115 A.L.R. 954. A system of ther-
apeutic treatment, through adjusting of articula-
tions of human body, particularly those of the
spine. Walkenhorst v. Kesler, 92 Utah 312, 67
P.2d 654, 662. The specific science that removes
pressure on the nerves by the adjustment of the
spinal vertebrae. State v. Boston, 226 Iowa 429,
284 N.W. 143, 144.
CHIROPRACTOR. One who practices the system
of chiropractic. Cummings v. State, 214 Ala. 209,
106 So. 852, 854. One professing a system of ma-
nipulations which aims to cure disease by the
mechanical restoration of displaced or subluxated
bones, especially the vertebra, to their normal re-
lation. Board of Medical Examiners of State of
Utah v. Freenor, 47 Utah, 430, 154 P. 941, 942, Ann.
Cas.1917E, 1156.
CHIRURGEON. The ancient denomination of a
surgeon.
CHIVALRY. In feudal law. Knight-service Ten-
ure in chivalry was the same as tenure by knight-
service. 2 Bl.Comm. 61, 62.
CHIVALRY, COURT OF. See Court of Chivalry.
CHIVALRY, TENURE BY. Tenure by knight-
service. Co.Litt.
CHOATE LIEN. Lien which is perfected so that
nothing more need be done to make it enforcible.
Identity of lienor, property subject to lien and
amount of lien are all established. Walker v.
Paramount Engineering Co., C.A.Mich., 353 F.2d
445, 449; U. S. v. City of New Britain, Conn.,
Conn., 74 S.Ct. 367, 369, 347 U.S. 81, 98 L.Ed. 520.
The lien must be definite and not mere ascertain-
able in the future by taking further steps. Gower
v. State Tax Commission, 295 P.2d 162, 207 Or. 288.
CHOKE DAMP. A common name for carbonic
acid;—so called from its extinguishing of flame
and animal life. Wells' Adm'r v. Sutherland Coal
&c Coke Co., 116 Va. 1003, 83 S.E. 384, 385.
Black's Law Dictionary Revised 4th Ed.-20
CHOP-CHURCH. A word mentioned in 9 Hen.
VI. c. 65, by the sense of which it was in those
days a kind of trade, and by the judges declared
to be lawful. But Brooke, in his abridgment, says
it was only permissible by law. It was, without
doubt, a nickname given to those who used to
change benefices, as to "chop and change" is a
common expression. Jacob.
CHOPS. The mouth of a harbor. Pub.St.Mass.
1882, p. 1288.
CHORAL. In ancient times a person admitted to
sit and worship in the choir; a chorister.
CHOREPISCOPUS. In old European law. A
rural bishop, or bishop's vicar. Spelman; Cow-
ell.
CHOSE. Fr. A thing; an article of personal
property. A chose is a chattel personal, (Wil-
liams, Pers.Prop. 4,) and is either in action or in
possession. See Chose in Action and Chose in
Possession, infra.
Chose local. A local thing; a thing annexed to
a place, as a mill. Kitchin, fol. 18; Cowell;
Blount.
Chose transitory. A thing which is movable, and
may be taken away or carried from place to place.
Cowell; Blount.
CHOSE IN ACTION. A personal right not re-
duced into possession, but recoverable by a suit at
law. North Carolina Bank & Trust Co. v. Wil-
liams, 160 S.E. 484, 485, 201 N.C. 464. A right
to personal things of which the owner has not the
possession, but merely a right of action for their
possession. 2 Bl.Comm. 389, 397; 1 Chit.Pr. 99.
The phrase includes all personal chattels which
are not in possession; 11 App.Cas. 440; Powers v.
Fisher, 279 Mich. 442; 272 N.W. 737, 739; and all
property in action which depends entirely on con-
tracts express or implied; Castle v. Castle, C.C.A.
Hawaii, 267 F. 521, 523. A right to receive or re-
cover a debt, demand, or damages on a cause of
action ex contractu or for a tort or omission of a
duty. Comyns, Dig. Biens. Moran v. Adkerson,
168 Tenn. 372, 79 S.W.2d 44, 45. Pickering v.
Peskind, 43 Ohio App. 401, 183 N.E. 301, 303. A
right to recover by suit a personal chattel. Gar-
ford Motor Truck Co. v. Buckson, 4 W.W.Harr.
103, 143 A. 410, 411. Assignable rights of action
ex contractu and perhaps ex delicto. Coty v.
Cogswell, 100 Mont. 496, 50 P.2d 249, 250. Person-
alty to which the owner has a right of possession
in future, or a right of immediate possession,
wrongfully withheld. And see Tumy v. Mayer,
289 Ill. 458, 124 N.E. 661, 662.
CHOSE IN POSSESSION. A personal thing of
which one has possession. A thing in possession,
as distinguished from a thing in action. Vawter
v. Griffin, 40 Ind. 601. See Chose in Action. Tax-
es and customs, if paid, are a chose in possession;
if unpaid, a chose in' action. 2 Bl.Comm. 408.
CHOSEN FREEHOLDERS. Under the municipal
organization of the state of New Jersey, each

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CHOUT
county has a board of officers, called by this name,
composed of representatives from the cities and
townships within its limits, and charged with ad-
ministering the revenues of the county. They cor-
respond to the "county commissioners" or "super-
visors" in other states.
CHOUT. In Hindu law. A fourth, a fourth part
of the sum in litigation. The "Mahratta chout" is
a fourth of the revenues exacted as tribute by the
Mahrattas.
CHOW SUM. A Chinese name for ginseng roots
which have been dried and treated with sugar and
honey, such treatment having the purpose and
effect of enhancing their value commercially but
not therapeutically. Tong & Co. v. U. S., 12 Ct.
Cust.App. 32, 33.
CHRENECRUDA. Under the Salic law. This
was a ceremony performed by a person who was
too poor to pay his debt or fine, whereby he ap-
plied to a rich relative to pay it for him. It con-
sisted (after certain preliminaries) in throwing
green herbs upon the party, the effect of which
was to bind him to pay the whole demand.
CHRISTIAN. Pertaining to Jesus Christ or the
religion founded by him; professing Christianity.
As a noun, it signifies one who accepts and pro-
fesses to live by the doctrines and principles of
the Christian religion; it does not include Mo-
hammedans, Jews, pagans, or infidels. State v.
Buswell, 40 Neb. 158, 58 N.W. 728, 24 L.R.A. 68.
One who believes or professes or is assumed to be-
lieve in Jesus Christ, and the truth as taught by
Him. Conway v. Third Nat. Bank & Trust Co.,
118 N.J.Eq. 61, 177 A. 113, 116.
CHRISTIAN NAME. The baptismal name as
distinct from the surname. Stratton v. Foster, 11
Me. 467. The name which is given one after his
birth or at baptism, or is afterward assumed by
him in addition to his family name. Badger Lum-
ber Co. v. Collinson, 97 Kan. 791, 156 P. 724, 725.
A Christian name may consist of a single letter. Whar-
ton; People v. Reilly, 257 Ill. 538, 101 N.E. 54, Ann.Cas.
1914A, 1112. There is no presumption that letters are not
themselves Christian names, and where a letter or letters
appear before a surname they are treated, in the absence
of any showing to the contrary, as the Christian name.
Riley v. Litchfield, 168 Iowa, 187, 150 N.W. 81, 82, Ann.Cas.
1917B, 172.
CHRISTIANITATIS CURIA. The court Christian.
An ecclesiastical court, as opposed to a civil or lay
tribunal. Cowell. See, also, Court Christian.
CHRISTIANITY. The religion founded and es-
tablished by Jesus Christ. Hale v. Everett, 53 N.
H. 9, 54, 16 Am.Rep. 82; People v. Ruggles, 8
Johns. (N.Y.) 297, 5 Am.Dec. 335.
CHRISTMAS DAY. A festival of the Christian
church, observed on the 25th of December, in
memory of the birth of Jesus Christ.
CHROME YELLOW. A metal largely used as a
yellow pigment. It is an active poison. U. S.
v. R. C. Boeckel & Co., C.C.A.Mass., 221 F. 885,
888.
CHROMO. A chromolithograph;—a picture pro-
duced from drawings on stones, each color being
represented by a different stone. . Stecher Litho-
graphic Co. v. Dunston Lithograph Co., D.C.N.Y.,
233 F. 601, 602.
CHRONIC. With reference to diseases, of long
duration, or characterized by slowly progressive
symptoms; deep-seated and obstinate, or threaten-
ing a long continuance;—distinguished from
acute. Golden v. Lerch Bros., 211 Minn. 30, 300
N.W. 207, 211.
CHURCH. In its most general sense, the religious
society founded and established by Jesus Christ,
to receive, preserve, and propagate his doctrines
and ordinances.
It may also mean a body of communicants gathered into
church order, Stebbins v. Jennings, 10 Pick. (Mass.) 193;
body or community of Christians, united under one form
of government by the profession of the same faith, and
the observance of the same ritual and ceremonies, McNeilly
v. First Presbyterian Church in Brookline, 243 Mass. 331,
137 N.E. 691, 694; building, Combined Congregations of
District of Columbia v. Dent, 140 F.2d 9, 10, 78 U.S.App.
D.C. 254; congregation, Trustees of Pencader Presbyterian
Church in Pencader Hundred v. Gibson, Del., 22 A.2d 782,
787, 788; organization for religious purposes, Williams v.
Williams, 215 N.C. 739, 3 S.E.2d 334, 338; place where per-
sons regularly assemble for worship, Stubbs v. Texas Liq-
uor Control Board, Tex.Civ.App., 166 S.W.2d 178, 180;
religious society or body, In re . Werner's Will, Sur., 181 N.
Y.S. 433, 434; society of persons who profess the Christian
religion, Church of the Holy Faith v. State Tax Commis-
sion, 39 N.M. 403, 48 P.2d 777, 784.
In English ecclesiastical law. An institution established
by the law of the land in reference to religion. 3 Steph.
Comm. 54. The word "church" is said to mean, in strict-
ness, not the material fabric, but the cure of souls and the
right of tithes. 1 Mod. 201.
A congregational church is a voluntary association of
Christians united for discipline and worship, connected
with, and forming a part of, some religious society, hav-
ing a legal existence. Anderson v. Brock, 3 Me. 248.
Church Building Acts
Statutes passed in England in and since the year
1818, to extend the accommodation afforded by the
national church. 3 Steph.Comm. 152-164.
Church Discipline Act
The statute 3 & 4 Viet. c. 86, containing regula-
tions for trying clerks in holy orders charged with
offenses against ecclesiastical law, and for enforc-
ing sentences pronounced in such cases. Phillim.
Ecc.Law, 1314.
Church of England
A distinct branch of Christ's church, it is also
an institution of the state of which the sovereign
is the supreme head. Wharton. Pawlet v. Clark,
9 Cranch 292, 3 L.Ed. 735.
Church Property
Within constitutional exemption from taxation,
it means property used for religious worship and
instruction. Church of the Holy Faith v. State
Tax Commission, 39 N.M. 403, 48 P.2d 777, 784.
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Church Rate
In English law. A sum assessed for the repair
of parochial churches by the representatives of
the parishioners in vestry assembled. Wharton.
Church Reeve
A church warden; an overseer of a church.
Now obsolete. Cowell.
Church-Scot
In old English law. Customary obligations paid
to the parish priest; from which duties the re-
ligious sometimes purchased an exemption for
themselves and their tenants.
Church Wardens
A species of ecclesiastical officers who are in-
trusted with the care and guardianship of the
church building and property. See 3 Steph.Comm.
90; 1 BIa.Comm. 394; Cowell; Terrett v. Taylor,
9 Cranch, 43, 3 L.Ed. 650.
Church-Yard
See Cemetery.
Community Church
A name signifying a federation of churches re-
taining their separate identity and distinctive
doctrines. Christian Church of Vacaville v. Crys-
tal, 78 Cal.App. 1, 247 P. 605, 608.
CHURCHESSET. In old English law. A certain
portion or measure of wheat, anciently paid to
the church on St. Martin's day; and which, ac-
cording to Fleta, was paid as well in the time of
the Britons as of the English. Fleta, lib. 1, c. 47,
§ 28.
CHURL. In Saxon law. A freeman of inferior
rank, chiefly employed in husbandry. 1 Reeve,
Eng.Law, 5. A tenant at will of free condition,
who held land from a thane, on condition of rents
and services. Cowell. See Ceorl.
CI. Fr. So; here. Ci Dieiu Vous cycle, so help
you God. Ci devant, heretofore. Ci bien, as well.
CIBARIA. Lat. In the civil law. Food; victuals.
Dig. 34, 1.
CICATRIX. In medical jurisprudence. A scar;
the mark left in the flesh or skin after the heal-
ing of a wound, and having the appearance of a
seam or of a ridge of flesh.
CIDER. Formerly, any liquor made of fruit
juices; now, the juice of apples either before or
after fermentation. People v. Tretneck, 22 N.Y.S.
2d 720, 721, 175 Misc. 41; People v. McCoy, 217
Mich. 575, 187 N.W. 338.
Cider vinegar. Vinegar made from apple cider.
People v. Douglas Packing Co., 194 N.Y.S. 633, 635,
118 Misc. 775.
Hard cider. Fermented cider, a strong, spirituous,
and intoxicating drink. Monroe Cider Vinegar &
Fruit Co. v. Riordan, D.C.N.Y., 274 F. 736, 737;
People v. Emmons, 144 N.W. 479, 481, 178 Mich.
126, Ann.Cas.1915D, 425.
Sweet cider. Cider before fermentation, or cider
in which fermentation has been prevented—cider
not yet become hard. U. S. v. Dodson, D.C.Cal.,
268 F. 397, 403. A nonalcoholic beverage com-
posed of the expressed juice of apples. Monroe
Cider Vinegar & Fruit Co. v. Riordan, C.C.A.N.Y.,
280 F. 624, 626.
CINQUE PORTS. Certain important ports or
havens on the south-east coast of England,
towards France. 3 Bl.Comm. 79. Their represen-
tatives in parliament and inhabitants were termed
barons. Brande; Cowell; Teanes de la Ley.
And see Round, Feudal England 563.
The 18 & 19 Vict. c. 48, (amended by 20 & 21
Vict. c. 1,) abolished jurisdiction and authority of
the lord warden of the Cinque Ports.
CIPHER. Ordinarily, a secret or disguised writ-
ten communication, unintelligible to one without
a key. As applied to telegrams, a "cipher" mes-
sage is one that is unintelligible. Western Union
Telegraph Co. v. Geo. F. Fish, Inc., 148 Md. 210,
128 A. 14, 16.
CIPPI. An old English law term for the stocks,
an instrument in which the wrists or ankles of
petty offenders were confined.
CIRCADA. A tribute anciently paid to the bishop
or archbishop for visiting churches. Du Fresne.
CIRCA. Lat. About; around; a/so, concerning;
with relation to. Commonly used before a given
date when the exact time is not known; as, circa
1800. Abbreviated circ. or c.
CIRCAR. In Hindu law. Head of affairs; the
state or government; a grand division of a prov-
ince; a headman. A name used by Europeans in
Bengal to denote the Hindu writer and account-
ant employed by themselves, or in the public of-
fices. Wharton.
CIRCUIT. A division of the country, appointed
for a particular judge to visit for the trial of caus-
es or for the administration of justice. See 3 Bla.
Comm. 58; State v. Mappus, 107 S.C. 345, 92 S.E.
1053.
Circuits, as the term is used in England, may be other-
wise defined to be the periodical progresses of the judges
of the superior courts of common law, through the several
counties of England and Wales, for the purpose of ad-
ministering civil and criminal justice. 3 Bla.Comm. 57;
3 Steph.Comm. 321.
CIRCUIT COURTS. Courts whose jurisdiction ex-
tends over several counties or districts, and of
which terms are held in the various counties or
districts to which their jurisdiction extends.
In several of the states, the name given to a
tribunal, the territorial jurisdiction of which may
comprise several counties or districts, and whose
sessions are held in such counties or districts al-
ternately. These courts usually have general orig-
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CIRCUIT
inal jurisdiction. Renshaw v. Reynolds, 317 Mo.
484, 297 S.W. 374, 376.
The name of a former .system of courts of the United
States, invested with general original jurisdiction of such
matters and causes as are of Federal cognizance, except
the matters specially delegated to the district courts. 1
Kent, Comm. 301-303.
CIRCUIT COURTS OF APPEALS. See Courts of
Appeals.
CIRCUIT JUDGE. The judge of a circuit court.
Crozier v. Lyons, 72 Iowa 401, 34 N.W. 186.
CIRCUIT JUSTICE. In federal law and practice.
The justice of the supreme court who is allotted
to a given circuit. 28 U.S.C.A. § 42.
CIRCUIT PAPER. In English practice. A paper
containing a statement of the time and place at
which the several assises will be held, and other
statistical information connected with the assises.
Holthouse.
CIRCUITUS EST EVITANDUS; ET BONI JU-
DICIS EST LITES DIRIMERE, NE LIS EX LITE
ORIATUR. 5 Coke, 31. Circuity is to be avoided;
and it is the duty of a good judge to determine
litigations, lest one lawsuit arise out of another.
Co.Litt. 384 a; Wing.Max. 179; Broom, Max. 343;
15 M. & W. 208; 5 Exch. 829.
CIRCUITY OF ACTION. A complex, indirect, or
roundabout course of legal proceeding, making
two or more actions necessary in order to effect
that adjustment of rights between all the parties
concerned in the transaction which, by a more di,
rect course, might have been accomplished in • a
single suit. Fellows v. Fellows, 4 Cow. (N.Y.) 682,
15 Am.Dec. 412.
CIRCULAR INSANITY. Maniac depressive psy-
chosis. Turley v. Turley, 374 Ill, 571, 30 N.E.2d
64, 65.
CIRCULAR LETTER OF CREDIT. A letter au-
thorizing one person to pay money or extend cred-
it to another on the credit of the writer. Pines v.
United States, C.C.A.Iowa, 123 F.2d 825, 828.
CIRCULAR NOTES. Instruments similar to "let-
ters of credit." They are drawn by resident bank-
ers upon their foreign correspondents, in favor of
persons traveling abroad. Brown.
CIRCULATED. A thing is "circulated" when it
passes, as from one person or place to another, or
spreads, as a report or tale. Willard v. State, 129
Tex.Cr.R. 384, 87 S.W.2d 269, 270.
CIRCULATION. As used in statutes providing
for taxes on the circulation of banks, this term
includes all currency or circulating notes or bills,
or certificates or bills intended to circulate as mon-
ey. U. S. v. Wilson, 106 U.S. 620, 2 S.Ct. 85, 27 L.
Ed. 310. As used in newspaper and magazine
publishing businesses, a body of subscribers and
an established advertising clientele. Meredith Pub.
Co. v. Commissioner of Internal Revenue, C.C.A.,
64 F.2d 890, 893. Reading of libelous document
with defendant's consent in hearing of others.
Myre v. State, 126 Tex.Cr.R. 157, 70 S.W.2d 428.
Circulating medium. This term is more compre-
hensive than the term "money," as it is the me-
dium of exchanges, or purchases and sales, wheth-
er it be gold or silver coin or any other article.
CIRCULATORY HEATING SYSTEM. One in
which the heating box, being outside the room to
be heated, heats a body of air in passing over it,
which body of air is then conducted to the room to
be heated, thus indirectly accomplishing the re-
sult;—distinguished from a "radiating" or direct
system, in which the heating body or box is in the
room intended to be heated. Pelton v. Williams,
C.C.A.Ohio, 235 F. 131, 132.
CIRCUMDUCTION. In Scotch law. A closing of
the period for lodging papers, or doing any other
act required in a cause. Paters. Comp,
CIRCUMDUCTION OF THE TERM. In Scotch
practice. The sentence of a judge, declaring the
time elapsed within which a proof ought to have
been led, and precluding the party from bringing
forward any further evidence. Bell.
CIRCUMFERENTIAL. Etymologically inclusive
of spiral. See George W. Todd & Co. v. J. Whita-
ker Mfg, Co., D.C.Pa., 226 F. 791, 794.
CIRCUMSPECTE AGATIS. The title of a statute
passed 13 Edw. I (1285) and so called from the
Initial words of it, the object of which was to as-
certain the boundaries of ecclesiastical jurisdiction
in some particulars, or, in other words, to regulate
the jurisdiction of the ecclesiastical and temporal.
courts. 2 Reeve, Eng.Law, 215, 216. See, how-
ever, 2 Holdsw.Hist.E.L. 246. And see Articles of
the clergy.
CIRCUMSTANCES. Attendant facts. Pope v.
Reading Co., 304 Pa. 326, 156 A. 106, 109. The
surroundings at the commission of an act.
The terms "circumstance" and "fact" are, in many ap-
plications, synonymous; but the true distinction of a
circumstance is its relative character. "Any fact may be
a circumstance with reference to any other fact." 1 Benth.
Jud.Evid. 42, note; Id. 142. "Circumstances" are minor
facts, Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139, 147;
related or accessory facts, occurrences or things which
stand around, or about, which attend upon, which closely
precede or follow, which surround , and accompany, which
depend upon, or which support or qualify a principal fact
or event, Salter v. State, 163 Ga. 80, 135 S.E. 408, 409.
As used in a statute for an allowance for the wife in
a divorce action, having regard to the "circumstances" of
the parties, it includes practically everything which has a
legitimate bearing on present and prospective matters re-
lating to the lives of both parties. Lamborn v. Lamborn,
80 Cal. App. 494, 251 P. 943, 945.
The "circumstances of the transaction itself," as used in
the doctrine of dying declarations, are the circumstances
or facts leading up to, causing, or attending the homicide,
and are not confined to occurrences at the very time there-
of. Pendleton v. Commonwealth, 131 Va. 676, 109 S.E. 201,
209.
Thrift, integrity, good repute, business capacity, and
stability of character, for example, are "circumstances"
which may be very properly considered in determining the
question of "adequate security." Martin v. Duke, 5 Rea.
Sur. (N.Y.) 600.
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CIRCUMSTANTIAL EVIDENCE. The term in-
cludes all evidence of indirect nature. Milligan v.
State, 109 Fla. 219, 147 So. 260, 263.
It is direct evidence as to facts deposed to but indirect as
to the factum probandum, Brown v. State, 126 Tex.Cr.R.
449, 72 S.W.2d 269, 270; evidence of facts or circumstances
from which the existence or nonexistence of fact in issue
may be inferred. People v. Steele, 37 N.Y.S.2d 199, 200,
179 Misc. 587; Wolff v. Employers Fire Ins. Co., 282 Ky.
824, 140 S.W.2d 640, 645, 130 A.L.R. 682; Scott v. State,
57 Ga.App. 489, 195 S.E. 923, 924; inferences drawn from
facts proved, Hatfield v. Levy Bros., 18 Ca1.2d 798, 117 P.
2d 841, 845; preponderance of probabilities, Hercules Pow-
der Co., v. Nieratko, 113 N.J.L. 188, 173 A. 606, 610; pro-
cess of decision by which court or jury may reason from
circumstances known or proved, to establish by inference
the principal fact, People v. Taddio, 292 N.Y. 488, 55 N.E.
2d 749, 750.
It means that existence of principal facts is only inferred
from circumstances. Twin City Fire Ins. Co. v. Lonas, 255
Ky. 717, 75 S.W.2d 348, 350.
When the existence of the principal fact is deduced from
evidentiary by a process of probable reasoning, the evi-
dence and proof are said to be presumptive. Best, Pres.
246; Id. 12. All presumptive evidence is circumstantial be-
cause necessarily derived from or made up of circum-
stances, but all circumstantial evidence is not presumptive.
Burrill.
The proof of various facts or circumstances which usual-
ly attend the main fact in dispute, and therefore tend to
prove its existence, or to sustain, by their consistency, the
hypothesis claimed. Or as otherwise defined, it consists in
reasoning from facts which are known or proved to es-
tablish such as are conjectured to exist.
CIRCUMSTANTIBUS, TALES DE. See Tales.
CIRCUMVENTION. In Scotch law. Any act of
fraud whereby a person is reduced to a deed by
decreet. It has the same sense in the civil law.
Dig. 50, 17, 49, 155. And see Oregon v. Jennings,
7 S.Ct. 124, 119 U.S. 74, 30 L.Ed. 323.
CIRCUS. A large inclosure with one end rounded
for races, a show in which feats of horsemanship,
tumbling, strength, etc., are exhibited. Zucarro
v. State, 82 Tex.Cr.R. 1, 197 S.W. 982, 985, L.R.A.
1918B, 354.
CIRIC. In Anglo-Saxon and old English law, a
church.
CIRIC-BRYCE. Any violation of the privileges of
a church.
CIRIC SCEAT. Church-scot, or shot; an ecclesi-
astical due, payable on the day of St. Martin, con-
sisting chiefly of corn.
CIRLISCUS. A ceorl (q. v.).
CISTA. A box or chest for the deposit of char-
ters, deeds, and things of value.
CITACION. In Spanish law. Citation; sum-
mons; an order of a court requiring a person
against whom a suit has been brought to appear
and defend within a given time.
It is synonymous with the term emplazamiento in the old
Spanish law, and the in jus vocatio of the Roman law.
CITATIO. Lat. A citation or summons to court.
CITATIO AD REASSUMENDAM CAUSAM. A
summons to take up the cause. A process, in the
civil law, which issued when one of the parties to
a suit died before its determination, for the plain-
tiff against the defendant's heir, or for the plain-
tiff's heir against the defendant, as the case might
be; analogous to a modern bill of revivor, which
is probably borrowed from this proceeding.
CITATIO EST DE JURI NATURAL!. A sum-
mons is by natural right. Cases in Banco Regis
Wm. III. 453.
CITATION. A writ issued out of a court of com-
petent jurisdiction, commanding a person therein
named to appear on a day named and do some-
thing therein mentioned, or show cause why he
should not. Proctor, Prac. Sheldon v. Sheldon,
100 N.J.Eq. 24, 134 A. 904, 907. An order or sum-
mons by which a defendant is directed or notified
to appear. Adams v. Citizens Bank, 136 So. 107,
109, 17 La.App. 422; Burrage v. Hunt Production
Co., Tex.Civ.App., 114 S.W.2d 1228, 1239. The act
by which a person is so summoned or cited.
It is usually original process in any proceeding where
used, and in such respect is analogous to a writ of capias
or summons at law and subpcena in chancery. Gondas v.
Gondas, 99 N.J.Eq. 473, 134 A. 615, 618.
As the act of the court through its proper officer com-
manding the appearance of defendant at the time and place
named to answer to plaintiff's petition, it has the dignity of
official character and weight of superior authority. Mor-
an Oil & Gas Co. v. Anderson, Tex.Civ.App., 223 S.W. 1031,
1032. It is used in this sense, in American law, in the
practice upon writs of error from the United States su-
preme court, and in the proceedings of courts of probate
in many of • the states. Durfee v. Durfee, 293 Mass. 472,
200 N.E. 395, 397; Schwartz v. Lake, 109 La. 1081, 34 So.
96.
It is also the name of the process used in the English ec-
clesiastical, probate, and divorce courts to call the defend-
ant or respondent before them. 3 B1.Comm. 100; 3 Steph.
Comm. 720. And in Scotch practice it is the calling of a
party to an action done by an officer of the court under
a proper warrant; the service of a writ or bill of sum-
mons. Paters. Comp.
CITATION OF AUTHORITIES. The reading, or
production of, or reference to, legal authorities
and precedents, (such as constitutions, statutes,
reported cases, and elementary treatises,) in argu-
ments to courts, or in legal text-books, to establish
or fortify the propositions advanced.
CITATIONS, LAW OF. In Roman law. An act of
Valentinian, passed A. D. 426, providing that the
writings of only five jurists, viz., Papinian, Paul,
Gaius, Ulpian, and Modestinus, should be quoted
as authorities. The majority was binding on the
judge. If they were equally divided the opinion
of Papinian was to prevail; and in such a case, if
Papinian was silent upon the matter, then the
judge was free to follow his own view of the mat-
ter. Brown.
CITATIONES NON CONCEDANTUR PRIUS-
QUAM EXPRIMATUR SUPER QUA RE FIERI
DEBET CITATIO. Citations should not be grant-
ed before it is stated about what matter the cita-
tion is to be made. (A maxim of ecclesiastical
law.) 12 Coke, 44.
CITE. L. Fr. City; a city. Cite de Loundr', city
of London.
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CITE. To summon; to command the presence
of a person; to notify a person of legal proceed-
ings against him and require his appearance
thereto. See In re Eno's Estate, 180 N.Y.S. 889,
890, 111 Misc. 69. To read or refer to legal au-
thorities, in an argument to a court or elsewhere,
in support of propositions of law sought to be es-
tablished.
CITIZEN. A member of a free city or jural so-
ciety, (civitas,) possessing all the rights and priv-
ileges which can be enjoyed by any person under
its constitution and government, and subject to
the corresponding duties. "Citizens" are mem-
bers of community inspired to common goal, who,
in associated relations, submit themselves to rules
of conduct for the promotion of general welfare
and conservation of individual as well as collec-
tive rights. In re McIntosh, D.C.Wash., 12 F.
Supp. 177.
The term appears to have been used in the Roman gov-
ernment to designate a person who had the freedom of the
city, and the right to exercise all political and civil priv-
ileges of the government. There was also, at Rome, a
partial citizenship, including civil, but not political rights.
Complete citizenshi p embraced both. Thomasson v. State,
15 Ind. 451; 17 L.Q.Rev. 270; 1 Sel.Essays in Anglo-Amer.
L.H. 578.
A member of a nation or body politic of the sovereign
state or political society who owes allegiance, Luria v. U.
S., 34 S.Ct. 10, 19, 231 U.S. 9, 58 L.Ed. 101; U. S. v. Polzin,
D.C.Md., 48 F.Supp. 476, 479.
A member of the civil state entitled to all its privileges.
Cooley, Const.Lim. 77. One of the sovereign people. A
constituent member of the sovereignty synonymous with
the people. Scott v. Sandford, 19 How. 404, 15 L.Ed. 691.
In American Law
One who, under the constitution and laws of the
United States, or of a particular state, is a mem-
ber of the political community, owing allegiance
and being entitled to the enjoyment of full civil
rights. Amy v. Smith, 1 Litt. (Ky.) 331; Minor v.
Happersett, 21 Wall. 162, 22 L.Ed. 627.
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the Unit-
ed States and of the state wherein they reside. Amend.
XIV, Const.U.S.; Nyman v. Erickson, 100 Wash. 149, 170
P. 546, 547.
The term may include or apply to an elector qualified to
vote in an election, Belmont v. Town of Gulfport, 97 Fla.
688, 122 So. 10; children of alien parents born in United
States, Von Schwerdtner v. Piper, D.C.Md., 23 F.2d 862,
863; U. S. v. Minoru Yasui, D.C.Or., 48 F.Supp. 40, 54;
children of American citizens born outside United States,
Hoaland v. Attorney General of United States, D.C.Md.,
42 F.Supp. 13, 22; Indians, United States v. Hester, C.C.A.
Okl., 137 F.2d 145, 147; State v. McAlhaney, 220 N.C. 387,
17 S.E.2d 352, 354; national banks, American Surety Co. v.
Bank of California, C.C.A.Or., 133 F.2d 160, 162; Ezzell v.
First Nat. Banks, 218 Ala. 462, 119 So. 2, 3; negroes and
whites, United States v. Ellis, D.C.S.C., 43 F.Supp. 321,
324; nonresident who has qualified as administratrix of
estate of deceased resident, Williams' Code Tenn. § 8236.
Hunt v. Noll, C.C.A.Tenn., 112 F.2d 288, 289; persons en-
titled to privileges and immunities conferred upon same
terms upon which they are conferred upon other citizens,
Austin v. United States, D.C.I11., 40 F.Supp. 777, 778.
The terms "citizen" and "citizenship" are distinguish-
able from "resident" or "inhabitant." Jeffcott v. Donovan,
C.C.A.Ariz., 135 F.2d 213, 214; and from "domicile,"
Wheeler v. Burgess, 263 Ky. 693, 93 S.W.2d 351, 354; First
Carolinas Joint Stock Land Bank . of Columbia v. New
York Title & Mortgage Co., D.C.S.C., 59 F.2d 350, 351.
The words "citizen" and "citizenship," however, usually
• include the idea of domicile, Delaware, L. & W. R. Co. v.
Petrowsky, C.C.A.N.Y., 250 F. 554, 557; citizen inhabitant
and resident often synonymous, Jonesboro Trust Co. v.
Nutt, 118 Ark. 368, 176 S.W. 322, 324; Edgewater Realty
Co. v, Tennessee Coal, Iron & Railroad Co., D.C.Md., 49 F.
Supp. 807, 809; and citizenship and domicile are often
synonymous. Messick v. Southern Pa. Bus Co., D.C.Pa.,
59 F. Supp. 799, 800.
A corporation is a citizen of state under whose laws it
Is created and a nonresident of every other state. Jack-
son Securities & Investment Co. v. State, 241 Ala. 288, 2
So.2d 760, 764. It is not a citizen within meaning of fed-
eral constitution declaring citizens of each state entitled
to privileges and immunities of citizens in the several
states or within Fourteenth Amendment prohibiting states
from abridging privileges and immunities ot citizens of
United States, J. D. L. Corporation v. Bruckman, 11 N.Y.
S.2d 741, 746, 171 Misc. 3; but see In re Thermiodyne Radio
Corporation, D.C.Del., 26 F.2d 713, 714; nor within statute
authorizing citizens of United States to prosecute appeal to
Circuit Court of Appeals without prepaying costs or giving
security, Atlantic S. S. Corporation v. Kelley, C.C.A.Fla., 79
F.2d 339, 340; nor within statute authorizing permission
to citizens to sue in forma pauperis, Quittner v. Motion
Picture Producers & Distributors of America, C.C.A.2, 70
F.2d 331, 332; nor within statute requiring suit in district
wherein either plaintiff or defendant resides. Standard
Stoker Co. v. Lower, D.C.Md., 46 F.2d 678. 684; Suther-
land v. U. S., C.C.A.Neb., 74 F.2d 89, 92. Insurance com-
panies, incorporated under state law. are "citizens of this
state" within statute requiring foreign insurance compa-
nies to file bonds for payment of their obligations to such
citizens. Republic Ins. Co. v. Cunningham, Tex.Civ.App.,
62 S.W.2d 339, 343. The term "citizen" will not be con-
strued to include a corporation, unless the general purpose
and import of the statutory or constitutional provision
seems to require it. St. Louis & S. F. R. Co. v. State, 120
Ark. 182, 179 S. W. 342, 343, Ann.Cas.1917C, 873; Jennings
v. Idaho Ry., Light & Power Co., 26 Idaho, 703, 146 P. 101,
102, L.R.A.1915D, 115, Ann.Cas.1916E, 359.
Neither a corporation nor a partnership is a citizen of
the United States entitled to immunity from service of
summons by substituted service, Western Mut. Fire Ins. Co.
v. Lamson Bros. & Co., D.C.Iowa, 42 F.Supp. 1007, 1012.
Filipinos are not citizens of United States, De Cano v.
State, 7 Wash.2d 613, 110 P.2d 627, 631; People v, Cordero,
50 Cal.App.2d 146, 122 P.2d 648, 649; but see holding that
Filipinos are within provision of Neutrality Act defining
"citizen" as including any individual owing allegiance to
the United States. Suspine v. Compania Transatlantica
Centroamericana, S. A., D.C.N.Y., 37 F.Supp. 268, 271.
A state cannot be a citizen. Query v. 206 Cases of Assort-
ed Liquor, D.C.S.C., 49 F.Supp. 693, 695.
But a state and the federal government each has citizens
of its own, and the same person may be at the same time
a citizen of the United States and a citizen of a state.
The government of the United States can neither grant nor
secure to its citizens rights or privileges which are not ex-
pressly or by implication placed under its jurisdiction.
All that cannot be so granted or secured are left to the
exclusive protection of the states. U. S. v. Cruikshank, 92
U.S. 542, 23 L.Ed. 588.
With reference to the jurisdiction and power of federal
courts and removal of actions a citizen of the District of
Columbia is not a "citizen of a state", Neild v. District
of Columbia, 110 F.2d 246, 249, 71 App.D.C. 306; Glaeser
v. Acacia Mut. Life Ass'n, D.C.Cal., 55 F.Supp. 925, 926;
a corporation is a citizen of the state where it is organized,
and a foreign corporation does not become a citizen of an-
other state where it is authorized to carry on business,
Van Buren v. Connecticut Gen. Life Ins. Co., D.C.Mass.,
42 F.Supp. 279, 280; a municipal subdivision, such as
county, city, town, or school district, is a citizen, Siegel v.
City of Detroit, Department of Street Railways, D.C.Mich.,
52 F.Supp. 669; Pettibone v. Cook County, Minn., C.C.A.
Minn., 120 F.2d 850, 852; a national bank is a citizen of
state where it has its principal place of business, American
Surety Co. of New York v. Bank of California, D.C.Or., 44
F.Supp. 81, 83; Atwood v. National Bank of Lima, C.C.A.
Ohio, 115 F.2d 861, 862; a state is not a citizen, Board of
Health of Township of Hillside v. Mundet Cork Corpora-
tion, 126 N.J.Eq. 100, 8 A.2d 105, 106, 107; State of North
Dakota v. National Milling & Cereal Co., C.C.A.N.D., 114
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F.2d 777, 779; State Highway Commission of Wyoming v.
Utah Const. Co., (Wyo.) 49 S.Ct. 104, 106, 278 U.S. 194, 73
L.Ed. 262; a turnpike commission is a citizen, Hunkiri-
Conkey Const. Co. v. Pennsylvania Turnpike Commission,
D.C.Pa., 34 F.Supp. 26, 28; an association is not a citizen,
Rife v. Lumber Underwriters, C.C.A.Tenn., 204 F. 32, 35;
Village Mills Co. v. Houston Oil Co. of Texas, Tex.Civ.
App., 186 S.W. 785, 788; domicile and citizen are synon-
mous in federal courts, Earley v. Hershey Transit Co., D.C.
Pa., 55 F.Supp. 981, 982; inhabitant, resident and citizen
are synonymous, Standard Stoker Co. v. Lower, D.C.Md.,
46 F.2d 678, 683.
In English Law
An inhabitant of a city. 1 Rolle, 138. The rep-
resentative of a city, in parliament. 1 Bl.Comm.
174.
The word "subject" is used to designate an inhabitant
of the country, or one amenable to the laws of the nation.
CITIZENSHIP. The status of being a citizen
(q. v.).
CITY.
In England
An incorporated town or borough which is or
has been the see of a bishop. Co.Litt. 108; 1 Bl.
Comm. 114; Cowell; 1 Steph.Comm. 115. State
v. Green, 126 N.C. 1032, 35 S.E. 462.
There is said, however, to be no necessary connection be-
tween a city and a see. Oxford Diet., citing Freeman.
A large town incorporated with certain privi-
leges. The inhabitants of a city. The citizens.
Worcester.
In America
A municipal corporation; Streat v. Vermilya,
268 Mich. 1, 255 N.W. 604, 606; also the territory
within the corporate limits. Municipal Power
Transmission Co. v. City of Lyndon, 127 Kan. 59,
272 P. 158, 160.
A large town or municipal corporation, State v. Haynes,
175 Ark. 645, 300 S.W. 380, 382; a political entity or sub-
division for governmental purposes, Nolan v. Jones, 215 Ky.
238, 284 S.W. 1054, 1056; a public institution for self-gov-
ernment, Loeb v. City of Jacksonville, 101 Fla. 429, 134 So.
205, 207; a public corporation for public purposes, Chase
v. Inhabitants of Town of Litchfield, 134 Me. 122, 182 A.
921, 924.
A state agency for carrying on local government. Hud-
son Motor Car Co. v. City of Detroit, 282 Mich. 69, 275 N.
W. 770, 773, 113 A.L.R. 1472; a voluntary association or
corporation. State ex rel. McQueen v. Brandon, 244 Ala.
62, 12 So.2d 319, 322; Leviton v. Board of Education of
City of Chicago, 374 Ill. 594, 30 N.E.2d 497, 500.
The fundamental distinction between town and city or-
ganization is that in the former all the qualified inhabit-
ants meet together to deliberate and vote as individuals,
each in his own right, while in the latter all municipal
functions are performed by deputies; the one being direct,
the other representative. In re Opinion of the Justices,
229 Mass. 601, 119 N.E. 778, 781.
The word "city," however, is often used to include an in-
corporated town. Noble v. State, 112 Tex.Cr.R. 676, 18 S.
W.2d 619, 620; and to include villages, People v. City of
Chicago, 349 Ill. 304, 182 N.E. 419, 431. It has also been
held that, under statutes, the term includes all municipal
corporations and corporate authorities, such as a board of
park commissioners; People v. Kesner, 321 Ill. 230, 151 N.
E. 481, 483; but that it does not include a village; Village
of Depue v. Banschbach, 273 Ill. 574, 113 N.E. 156, 159.
In Medieval History
In the Middle Ages in Germany, fortified places
in the enjoyment of market-jurisdiction.
The German as well as the French cities are a creation
of the Middle Ages; there was an organic connection with
the Roman town-system. Schroder, Lehrbuch des Deutchen
Rechtsgeschichte 588.
CITY COUNCIL. The name of a group of munici-
pal officers constituting primarily a legislative and
administrative body, but which is often charged
with judicial or quasi judicial functions, as when
sitting on charges involving the removal of an offi-
cer for cause. Rutter v. Burke, 89 Vt. 14, 93 A.
842, 849.
CITY ELECTION. Any election in a city at which
people of the city may vote, Wing v. Ryan, 6 N.
Y.S.2d 825, 829, 255 App.Div. 163.
CITY OF LONDON COURT. A court having a
local jurisdiction within the city of London. It
is to all intents and purposes a county court, hav-
ing the same jurisdiction and procedure.
CITY REAL ESTATE. Property owned and used
for municipal purposes. McSweeney v. Bazinet,
55 N.Y.S.2d 558, 561, 269 App.Div. 213.
CITY WARRANT. A command of council to
treasurer to pay amount. State v. McCarthy, 282
P. 1045, 1048, 86 Mont. 100.
CIUDADES. Sp. In Spanish law, cities; distin-
guished from towns (pueblos) and villages
(villas.) Hart v. Burnett, 15 Cal. 537.
CIVIC. Pertaining to a city or citizen, or to citi-
zenship. Cleveland Opera Co. v. Cleveland Civic
Opera Ass'n, 22 Ohio App. 400, 154 N.E. 352, 353.
CIVIC ENTERPRISE. A project or undertaking
in which citizens of a city co-operate to promote
the common good and general welfare of the peo-
ple of the city. James McCord Co. v. Citizens'
Hotel Co., Tex.Civ.App., 287 S.W. 906, 908.
CIVIL. Originally, pertaining or appropriate to
a member of a civitas or free political community;
natural or proper to a citizen. Also, relating to
the community, or to the policy and government
of the citizens and subjects of a state.
The word is derived from the Latin civilis, a citizen.
Byers v. Sun Savings Bank, 41 Okl. 728, 139 P. 948, 949,
52 L.R.A.,N.S., 320, Ann.Cas.1916D, 222. In law, it has var-
ious significations. In contradistinction to barbarous or
savage, it indicates a state of society reduced to order and
regular government. In contradistinction to criminal, it in-
dicates the private rights and remedies of men. It is also
used in contradistinction to military, ecclesiastical, natural,
or foreign. Story, Const. § 791; 1 Bla.Comm. 6, 125, 251;
Montesquieu, Sp. of Laws, b. 1, c. 3; Rutherforth, Inst.
b. 2, c. 2; id. c. 3; id. c. 8, p. 359; Heineccius, Elem.
Jurisp.Nat. b. 2, ch. 6.
A prisoner's statutory obligation to pay for his keep and
maintenance is civil. Auditor General v. Hall, 300 Mich.
215, 1 N.W.2d 516, 518, 139 A.L.R. 1022.
As to civil "Commotion," "Conspiracy," "Con-
tempt," "Corporations," "Death," "Injury," "Lib-
erty," "Obligation," "Officer," "Possession," "Rem-
edy," "Rights," and "War," see those titles. See,
also, the following titles beginning with "Civil."
CIVIL ACTION.
In general
An action wherein an issue is presented for
trial formed by averments of complaint and de-
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nials of answer or replication to new matter,
White v. White, 98 Ind.App. 587, 186 N.E. 349, 351.,
an adversary proceeding for declaration, enforce-
ment, or protection of a right, or redress, or pre-
vention of a wrong, People v. Barker, 29 Cal.App.
2d Supp. 766, 77 P.2d 321, 323; Lee v. Lang, 140
Fla. 782, 192 So. 490, 491; Johnston v. State,
212 Ind. 375, 8 N.E. 590, 592. Every action other
than a criminal action, City of Neenah v. Krueger,
206 Wis. 473, 240 N.W. 402, 404; Gillson v. Ven-
dome Petroleum Corporation, D.C.La., 35 F.Supp.
815, 819.
Both actions at law and actions in equity. Kiepinger v.
Rhodes, 140 F.2d 697, 698, 78 U.S.App.D.C. 340.
In the Civil Law
A personal action which is instituted to compel
payment, or the doing of some other thing which
is purely civil. Pothier, Introd. Gen. aux Cont.
110.
At Common Law
One which seeks the establishment, recovery,
or redress of private and civil rights. One
brought to recover some civil right, or to obtain
redress for some wrong not being a crime or mis-
demeanor. Wheeling Traction Co. v. Pennsyl-
vania Co., D.C.Ohio, 1 F.2d 478, 479.
Civil suits relate to and affect only individual rights
whereas criminal prosecutions involve public wrongs. Can-
cemi v. People, 18 N.Y. 128. They include all cases, both
at law and in equity, which cannot legally be denominated
"criminal cases." Fenstermacher v. State, 19 Or. 504, 25
P. 142; Welford v. Havard, 127 Miss. 83, 89 So. 812, 813.
In Code Practice
The one form of action for enforcement or protection of
private rights and prevention or redress of private wrongs.
Code N.Y. § 69. It may also be brought for the recovery
of a penalty or forfeiture.
"Civil action" implies adversary parties and an issue, and
is designed for the recovery or vindication of a civil right
or the redress of some civil wrong. Bopst v. Williams, 287
Mo. 317, 229 S.W. 796, 798. It is a generic term, and does
not necessarily imply jury trial. State Board of Medical
Examiners v. Macy, 92 Wash. 614, 159 P. 801, 804.
CIVIL BILL COURT. A tribunal in Ireland with
a jurisdiction analogous to that of the county
courts in England. The judge of it is also chair-
man of quarter sessions (where the jurisdiction
is more extensive than in England), and per-
forms the duty of revising barrister. Wharton.
CIVIL DAMAGE ACTS. Acts which provide in
certain cases an action for damages to one injured
because of the furnishing of liquor. Tarwater v.
Atlantic Co., 176 Tenn. 510, 144 S.W.2d 746, 747.
CIVIL DAY. See the title Day.
CIVIL ENFORCEMENT PROCEEDING. The
penalty actions under Emergency Price Control
Act. Bowles v. Barde Steel Co., 177 Or. 421, 164
P.2d 692, 715, 162 A.L.R. 328.
CIVIL INFORMATION. A legal proceeding in
chancery, older than the court of equity. Wilson
v. State Water Supply Commission, 84 N.J.Eq. 150,
93 A. 732, 733.
CIVIL INQUEST. A proceeding to determine
whether an individual is a criminal sexual psycho-
pathic person within statute providing for confine-
ment and treatment of such persons. People v.
Chapman, 301 Mich. 584, 4 N.W.2d 18, 26.
CIVIL LAW. "Civil Law," "Roman Law" and
"Roman Civil Law" are convertible phrases, mean-
ing the same system of jurisprudence.
That rule of action which every particular na-
tion, commonwealth, or city has established pecu-
liarly for itself; more properly called "municipal"
law, to distinguish it from the "law of nature,"
and from international law. See Bowyer, Mod.
Civil Law, 19; Sevier v. Riley, 189. Cal. 170, 244 P.
323, 325.
That division of municipal law which is occu-
pied with the exposition and enforcement of civil
rights as distinguished from criminal law.
The system of jurisprudence held and administered in
the Roman empire, particularly as set forth in the compila-
tion of Justinian and his successors,—comprising the In-
stitutes, Code, Digest, and Novels, and collectively denom-
inated the "Corpus Juris Civi/is,"—as distinguished from
the common law of England and the canon law.
The word "civil," as applied to the laws in force in
Louisiana, before the adoption of the Civil Code, is not
used in contradistinction to the word "criminal," but must
be restricted to the Roman law. It is used in contradistinc-
tion to the laws of England and those of the respective
states. Jennison v. Warmack, 5 La. 493.
CIVIL LIABILITY. The amenability to civil ac-
tion as distinguished from amenability to criminal
prosecution. Corn. v. Shimpeno, 160 Pa.Super. 104,
50 A.2d 39, 43. A sum of money assessed either
as general, special or liquidated damages, either-
single, double or treble for violation such as over-
charges. Lewis v. Anderson, D.C.Cal., 72 F.Supp,
119, 123.
CIVIL LIST. In English public law. An annual
sum granted by parliament, at the commencement
of each reign, for the expense of the royal house-
hold and establishment, being a provision made
for the crown out of the taxes in lieu of its proper
patrimony. 2 Steph.Comm. 591; 1 Bl.Comm. 332.
CIVIL NUISANCE. At common law, anything
done to hurt or annoyance of lands, tenements,
or hereditaments of another. Brownsey v. Gen-
eral Printing Ink Corporation, 118 N.J.L. 505, 193
A. 824, 826.
CIVIL OBLIGATION. One which binds in law,
and may be enforced in a court of justice. Po-
thier, Obl. 173, 191.
CIVIL OFFICE. An office, not merely military in
its nature, that pertains to the exercise of the pow-
ers or authority of civil government. State ex
rel. Landis v. Futch, 122 Fla. 837, 165 So. 907, 909.
Requisites are continuity, creation and definition
of powers and duties by Constitution or Legisla-
ture, or their authority, possession of govern-
mental power, and independence unless controlled
by superior officers. State ex rel. McIntosh v.
Hutchinson, 187 Wash. 61, 59 P.2d 1117, 1118, 105
A.L.R. 1234.
CIVIL OFFICER. See Officer.
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CIVIL POSSESSION. See Possession.
CIVIL RESPONSIBILITY. The liability to be
called upon to respond to an action at law for an
injury caused by a delict or crime, as opposed to
criminal responsibility, or liability to be proceeded
against in a criminal tribunal.
CIVIL RIGHTS. See Right.
CIVIL SERVICE. This term properly includes all
functions under the government, except military
functions. In general it is confined to functions
in the great administrative departments of state.
People v. Cram, 61 N.Y.S. 858, 29 Misc. 359. But
in enlarged sense means all service rendered to
and paid for by state, nation, or political subdi-
visions thereof, except that pertaining to naval or
military affairs. Long v. Wells, 186 Ga. 602,
198 S.E. 763, 768.
CIVIL SERVICE REFORM. Substitution of busi-
ness principles and methods for spoils system in
conduct of civil service, especially in matter of
appointments. Ward v. Leche, 189 La, 113, 179
So. 52, 55.
CIVIL SIDE. When the same court has juris-
diction of both civil and criminal matters, pro-
ceedings of the first class are often said to be on
the civil side; those of the second, on the criminal
side.
CIVIL TOWNSHIP. A legal subdivision of the
county for governmental purposes. Appeal of
Trustees of Iowa College, 185 Iowa 434, 170 N.W.
813, 814.
CIVIL YEAR. See Year.
CIVILIAN. One who is skilled or versed in the
civil law. A doctor, professor, or student of the
civil law. Also a private citizen, as distinguished
from such as belong to the army and navy or (in
England) the church.
CIVILIS. Lat. Civil, as distinguished from crimi-
nal. Civilis actio, a civil action. Bract. fol. 101b.
CIVILISTA. In old English law. A civil lawyer,
or civilian. Dyer, 267.
CIVILITER. Civilly. In a person's civil character
or position, or by civil (not criminal) process or
procedure. This term is used in distinction or op-
position to the word "crimincaiter,"-criminally,-
to distinguish civil actions from criminal prose-
cutions. 2 East, 104.
CIVILITER MORTUUS. Civilly dead; dead in the
view of the law. The condition of one who has
lost his civil rights and capacities, and is account-
ed dead in law. Rasor v. Rasor, 173 S.C. 365, 175
S.E. 545.
CIVILIZATION.
In Practice
A law; an act of justice, or judgment which
renders a criminal process civil; performed by
turning an information into an inquest, or the
contrary. Wharton.
In Public Law
A term which covers several states of society;
it is relative, and has no fixed sense, but implies
an improved and progressive condition of the peo-
ple, living under an organized government.
Roche v. Washington, 19 Ind. 56, 81 Am.Dec. 376.
It consists not merely in material achievements, in
accomplishment and accumulation of wealth, or in
advancement in culture, science, and knowledge,
but also in doing of equal and exact justice. Stig-
litz v. Schardien, 239 Ky. 799, 40 S.W.2d 315, 321.
CIVIS. Lat. In the Roman law. A citizen; as
distinguished from incola, (an inhabitant;) origin
or birth constituting the former, domicile the
latter. Code, 10, 40, 7. And see U. S. v. Rhodes,
27 Fed.Cas. 788.
CIVITAS, Lat. In the Roman law. Any body
of people living under the same laws; a state.
Jus civitatis, the law of a state; civil law. Inst. 1,
2, 1, 2. Civitates fcederatce, towns in alliance with
Rome, and considered to be free. Butl.Hor.Jur.
29.
Citizenship; one of the three status, conditions,
or qualifications of persons. Mackeld.Rom.Law, §
131.
A term in the Anglo-Saxon land books, common-
ly applied to Worcester, Canterbury and other
such places, which are both bishop's sees and the
head places of large districts. Maitland, Domes-
day and Beyond 183. See 17 L.Q.R. 274. Oxford
Dict. s. v. City.
See City.
CLAIM, n. A broad, comprehensive word, Wheel-
er v. Equitable Life Assur. Soc. of United States,
211 Minn. 474, 1 N.W.2d 593, 596.
CLAIM, v. To demand as one's own; to assert,
Hill v. Henry, 66 N.J.Eq. 150, 57 Atl. 555. To
state; to urge; to insist.
It may embrace or apply to a call, In re Heim's Estate, 3
N.Y.S.2d 134, 138, 166 Misc. 931; a demand, Moulding-
Brownell Corporation v. E. C. Delfosse Const. Co., 291 Ill.
App. 343, 9 N.E.2d 459, 461, a pretense; a right or title,
Orenberg v. Thecker, 143 F.2d 375, 377, 79 U.S.App.D.C.
149; Lawrence v. Miller, 2 N.Y. 245, 254; an account, In
re Stratman's Estate, 231 Iowa 480, 1 N.W.2d 6:36, 642; an
action on account, Coleman v. Kansas City, 351 Mo. 254,
173 S.W.2d 572, 576; an assertion, Ritter v. Albuquerque
Gas & Electric Co., 47 N.M. 329, 142 P.2d 919, 922; both
the principal amount of judgment and interest thereon,
Powell v. Link, C.C.A.Va., 114 F.2d 550, 554; cause of suit
or cause of action, Jacobson v. Mutual Ben. Health & Ac-
cident Ass'n, 73 N.D. 108, 11 N.W.2d 442, 446; challenge of
property or ownership of a thing which is wrongfully with-
held, Douglas v. Beasley, 40 Ala. 147; Prigg v. Pennsyl-
vania, 16 Pet. 615, 10 L.Ed. 1060; challenge of something
as right, Uintah State Bank v. Ajax, 77 Utah, 455, 297 P.
434, 438. Claims ex delicto as well as ex contractu, Wil-
liams v. Williams, 217 Ind. 581, 29 N.E.2d 557, 558. Debt,
Tanner v. Best's Estate, 40 Cal.App.2d 442, 104 P.2d 1084,
1087. But not all valid "claims" are "debts," State Bank-
ing Co. v. Hinton, 178 Ga. 68, 172 S.E. 42, 47, 91 A.L.R. 596;
existing right, Mellus v. Potter, 91 Cal.App. 700, 267 P.
563, 564; judgment, Jennings v. Loucks, 297 N.Y.S. 893,
896, 163 Misc. 791; legal capability to require a positive or
negative act of another person, Kocourek, Jural Relations,
2d Ed., 7; legal claim, right.  In re Heinemann's Will, 201
Wis. 484, 230 N.W. 698, 700; means by or through which
claimant obtains possession or enjoyment of privilege or
thing, Lawrence v. Miller, 2 N.Y. 245, 254; valid claim,
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Tennessee Consol. Coal Co. v. Commissioner of Internal
Revenue, C.C.A.6, 117 F.2d 452, 454.
In patent law, specification by applicant for patent of
particular things in which he insists his invention is novel
and patentable ; the clause in application in which ap-
plicant defines precisely what his invention is. Westing-
house Electric & Mfg. Co. v. Metropolitan Electric Mfg.
Co., C.C.A.N.Y., 290 F. 661, 664.
Under Compensation Acts, a claim for which an amount
of compensation may be deducible. Texas Employers Ins.
Ass'n v. Booth, Tex.Civ.App., 113 S.W.2d 231, 241.
A demand for compensation, Georgia Casualty Co. v.
Ward, Tex.Civ.App., 220 S.W. 380, 381; or for payment of
medical expenses, Schmidt v. City of Lincoln, 137 Neb.
546, 290 N.W. 250, 253; A notice that claimant is claim-
ing compensation and benefits, Kaplan v. Kaplan Knitting
Mills, 248 N.Y. 10, 161 N.E. 204, 206; A provision that no
claim for compensation shall be assignable before payment,
covers both claims and awards. Pacific Electric R. Co. v.
Commonwealth Bonding & Casualty Ins. Co., 55 Cal.App.
704, 204 P. 262, 263.
Under land laws, tract of land taken up by a preemp-
tioner or other settler (and also his possession of it).
Railroad Co. v. Abink, 14 Neb. 95, 15 N.W. 317.
Under mechanic's lien law of some states, a demand put
on record by a mechanic or material-man against a build-
ing for work or material contributed to its erection.
Under statute authorizing the courts to order a bill of
particulars of the "claim" of either party, "claim" is co-
extensive with "case," and embraces all causes of action
and all grounds of defense, the pleas of both parties, and
pleas in confession and avoidance, no less than complaints
and counter-claims. Orvis v. Jennings, 6 Daly (N.Y.) 446.
When applied to estate of decedent, asserted but unad-
judicated obligation, In re Franks' Estate, 277 N.Y.S. 573,
154 Misc. 472; debt or demand of a pecuniary nature,
Tinkham v. Tinkham, 112 Ind.App. 532, 45 N.E.2d 357, 360;
debts already due and unmatured debts, Roth v. Ravich,
111 Conn. 649, 151 A. 179, 180, 74 A.L.R. 364.
Within statute concerning presentation of false claim to
political unit or officer, one which upon its face purports to
be charge for which county would be liable. State ex rel.
Welling v. Third Judicial District Court in and for Salt
Lake County, 87 Utah 416, 49 P.2d 950, 952.
Within World War Veterans' Act any physical writing
which furnishes the desired information, Cable v. United
States, C.C.A.I1l., 104 F.2d 541, 545; assertion of a present
claim demand, Werner v. United States, C.C.A.N.Y., 86 F.
2d 113; Cannon v. United States, D.C.Pa., 45 F.Supp. 106,
108.
An adverse claim is one set up by a stranger to
goods upon which the sheriff has levied an execu-
tion or attachment. It is also applied to claims to
real property.
For "Counter-claim" and "False Claim," and
"False or Fraudulent Claim," see those titles.
CLAIM ACCRUED. Damage accrued. Megerell
v. State, Ct.C1., 46 N.Y.S.2d 685, 688; Edlux Const.
Corporation v. State, 300 N.Y.S. 509, 511, 252 App.
Div. 373.
CLAIM BOND. A bond primarily in the nature
of a forthcoming bond. Liability can be based
thereon when the court adjudges the failure of
the claimant in trial of right of property to estab-
lish his right to it. Sanders v. Farrier, Tex.Civ.
App., 271 S.W. 293, 298.
CLAIM JUMPING. The location on ground, know-
ing it to be excess ground, within the staked
boundaries of another mining claim initiated prior
thereto, because law governing manner of mak-
ing location had not been complied with, so that
location covers the workings of the prior locators.
Nelson v. Smith, 42 Nev. 302, 176 P. 261, 265.
CLAIM PROPERTY BOND. A bond filed by a de-
fendant in cases of replevin , and of execution to
procure return of goods. Snyder v. Frankenfield,
4 Pa.Dist.R. 767; Weaver v. Lawrence, 1 Da11.
156, 1 L.Ed. 79; 1 Dali.U.S. (4th Ed. by Brightly)
156, 157, note.
CLAIM AND DELIVERY. Action at law for re-'
covery of specific personal chattels wrongfully
taken and detained, with damages which the tak-
ing or detention has caused; a modification of
common-law action of replevin. Railroad Co. v.
Gila County, 8 Ariz. 292, 71 P. 913; Farmers & De-
positors Bank v. Taylor, 290 Ky. 774, 162 S.W.2d
764, 765.
CLAIM IN EQUITY. In English practice. In sim-
ple cases, the summary proceeding by claim was
sometimes adopted. This summary practice was
created by orders 22d April, 1850. See Smith, Ch.
Pr. 664. By Consolid.Ord.1860, viii, r. 4, claims
were abolished. Wharton.
CLAIM OF COGNIZANCE OR OF CONUSANCE.
An intervention by a third person, claiming juris-
diction or demanding judicature in cause, which
plaintiff has commenced out of the claimant's
court. Now obsolete. 2 Wils. 409; 2 Bl.Comm.
350, note; 3 Bl.Comm. 298.
CLAIM OF LIBERTY. In English practice. A.
suit or petition to the queen, in the court of ex-
chequer, to have liberties and franchises con-
firmed there by the attorney general.
CLAIM OF OWNERSHIP, RIGHT AND TITLE.
As regards adverse possession, claim of land as
one's own to hold it for oneself. Peters v. Gil-
lund, Tex.Civ.App., 186 S.W.2d 1019, 1020. Claim
of right, claim of title and claim of ownership are
synonymous. Ewing v. Tanner, 193 S.E. 243, 247,
184 Ga. 773; City of Rock Springs v. Sturm, 39
Wyo. 494, 273 P. 908, 911. Claimant's intention to
claim in hostility to real owner, Bowden-Gazzam
Co. v. Hogan, 22 Wash.2d 27, 154 P.2d 285, 289,
290. Color of title and claim of title are synony-
mous. Sullivan v. Neel, 105 Mont. 253, 73 P.2d
206, 208; Walton v. Sikes, 165 Ga. 422, 141 S.E.
188, 190. Intention of disseisor to appropriate
and use land as his own, irrespective of any sem-
blance of color, or right, or title. Marion Inv.
Co. v. Virginia Lincoln Furniture Corporation, 171
Va. 170, 198 S.E. 508, 513, 118 A.L.R. 939.
CLAIMANT. As used in escheat proceeding, per-
sons interested in the estate as heirs. In re Peers'
Estate, 234 Iowa 403, 12 N.W.2d -894, 895. As used
in statute regarding processing tax refunds, one
from whom tax has been collected. Upchurch
Packing Co. v. United States, D.C.Ga., 53 F.Supp.
791, 793. One who claims or asserts a right, de-
mand or claim though sometimes "claimant" has
a more restricted meaning. Weisgerber v. Work-
men's Compensation Bureau, 70 N.D. 165, 292
N.W. G27, 630, 128 A.L.R. 1482.
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In admiralty practice. A person who lays claim
to property seized on a libel in rem, and is au-
thorized and admitted to defend the action. 'The
Conqueror, 17 S.Ct. 510, 166 U.S. 110, 41 L.Ed. 937;
Thirty Hogsheads of Sugar, Bentzon, Claimant v.
Boyle, 9 Cranch, 191, 3 L.Ed. 701.
CLAIMANT ADJUSTER. One who will obtain,
secure, enforce, or establish a right, claim, or de-
mand for an individual against an insurance
company. Wilkey v. State ex rel. Smith, 244 Ala.
568, 14 So.2d 536, 543.
CLAM. Lat. In the civil law. Covertly; secretly.
CLAM FACTUM ID VIDETUR ESSE, QUOD
QUISQUE, QUUM CONTROVERSIAM HABER-
ET, HABITURUMVE SE PUTARET, FECIT.
That appears to be covertly (secretly) done, which
anyone did, when he had a legal dispute, or
thought he would have one. Adams Gloss.
CLAM, VI, AUT PRECARIO. A technical phrase
of the Roman law, meaning by force, stealth, or
importunity.
CLAM DELINQUENTES MAGIS PUNIUNTUR
QUAM PALAM. 8 Coke, 127. Those sinning sec-
retly are punished more severely than those sin-
ning openly.
CLAMEA ADMITTENDA IN ITINERE PER AT-
TORNATUM. An ancient writ by which the king
commanded the justices in eyre to admit the claim
by attorney of a person who was in the royal serv-
ice, and could not appear in person. Reg.Orig. 19.
CLAMOR. In old English law. A claim or com-
plaint; an outcry; clamor.
In the civil law. A claimant. A debt; any-
thing claimed from another. A proclamation; an
accusation. Du Cange.
CLANDESTINE. Secret; hidden; concealed.
The "clandestine importation" of goods is a term
used in English statutes as equivalent to "smug-
gling." Keck v. U. S., 19 S.Ct. 254, 172 U.S. 434,
43 L.Ed. 505. A clandestine marriage is (legally)
one contracted without observing the conditions
precedent prescribed by law, such as publication
of bans, procuring a license, or the like. Hay v.
State, 68 Fla. 458, 67 So. 107.
CLAP. Vulgar name for gonorrhea. Sally v.
Brown, 220 Ky. 576, 295 S.W. 890, 891.
CLARE CONSTAT. (It clearly appears.) In
Scotch law. The name of a precept for giving sei-
sin of lands to an heir; so called from its initial
words. Ersk.Inst. 3, 8, 71.
CLAREMETHEN. In old Scotch law. The war-
ranty of stolen cattle or goods; the law regulat-
ing such warranty. Skene.
CLARENDON, ASSIZE OF. A statute (1166) the
principal feature of which was an improvement
of judicial procedure in the case of criminals. It
was a part of the same scheme of reform as the
Constitution of Clarendon. See James C. Carter,
The Law, etc., 65.
CLARENDON, CONSTITUTIONS OF. Certain
statutes made in the reign of Henry II. of Eng-
land, at a parliament held at Clarendon, (A. D.
1164,) by which the king checked the power of the
pope and his clergy, and greatly narrowed the
exemption they claimed from secular jurisdic-
tion. 4 B1.Comm. 422; Fitz Stephen 27; 2 Lin-
gard 59; 1 Hume 382; Wilkins 321; 1 Poll. & M.
430-440, 461; 2 id. 196.
CLARIFICATIO. Lat. In old Scotch law. A
making clear; the purging or clearing (clenging)
of an assise. Skene.
CLASS. The order or rank according to which
persons or things are arranged or assorted.
Also a body of persons uncertain in number,
Weaver v. Liberty Trust Co., 183 A. 544, 548, 170
Md. 212; a group of persons, things, qualities, or
activities, having common characteristics or at-
tributes. Inter-County Rural Electric Co-op. Cor-
poration v. Reeves, 294 Ky. 458, 171 S.W.2d 978,
982. Also grade, Commonwealth ex rel. Margiotti
v. Sutton, 327 Pa. 337, 193 A. 250, 252. Also same
descriptive properties. Cheek-Neal Coffee Co. v.
Hal Dick Mfg. Co., Cust. & Pat.App., 40 F.2d 106,
107.
CLASS ACTION. An action brought on behalf of
other persons similarly situated. Mitchell v.
Wright, D.C.Ala., 62 F.Supp. 580, 582; Calabrese
v. Chiumento, D.C.N.J., 3 F.R.D. 435, 437.
CLASS GIFT. A gift of aggregate sum to body of
persons, uncertain in number at time thereof, to
be ascertained at future time, Hepburn v. Win-
throp, 83 F.2d 566, 570, 65 App.D.C. 309, 105 A.L.R.
310.
CLASS LEGISLATION. Legislation limited in op-
eration to certain persons or classes of persons,
natural or artificial, or to certain districts of ter-
ritory or state, Vardaman v. McBee, 1C8 Miss.
251, 21 So.2d 661, 664. Legislation operating upon
'portion of particular class of persons or things.
Shaw v. Fox, 246 Ky. 342, 55 S.W.2d 11.
The term is applied to enactments which divide
the people or subjects of legislation into classes,
with reference either to the grant of privileges
or the imposition of burdens, upon an arbitrary,
unjust, or invidious principle, or which make ar-
bitrary discriminations between those persons or
things coming within the same class. Leuthold
v. Brandjord, 100 Mont. 96, 47 P.2d 41, 45; People
v. Marcello, Mag.Ct.N.Y., 25 N.Y.S.2d 533, 537, 538,
539.
CLASS or REPRESENTATIVE ACTION. One in
which one or more members of a class sue either
for themselves or for themselves and other mem-
bers of a class. Huester v. Gilmour, D.C.Pa., 13 F.
Supp. 630, 631; City of Dallas v. Armour & Co.,
Tex.Civ.App., 216 S.W. 222, 224. The plaintiff in a
representative action before judgment is, as a
rule, dominos litis, (q. v.,) and may discontinue or
compromise the action as he pleases. Sweet.
CLASS REPRESENTATION. Where members of
class sue or are sued on behalf of other members
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judgment is conclusive for and against those mem-
bers of class thus represented, in absence of fraud
or collusion. Barnes v. Fort, 181 S.W.2d 881, 884,
181 Tenn. 522; Grand International Brotherhood
of Locomotive Engineers v. Mills, 43 Ariz, 379, 31
P.2d 971, 982.
CLASS SUIT, See Class or Representative Ac-
tion,
CLASSIARIUS. A seaman or soldier serving at
sea.
CLASSIC!. In the Roman law. Persons em-
ployed in servile duties on board of. vessels. Cod.
11, 12.
CLASSIFICATION. A grouping into classes.
Davison v. Parke Austin & Lipscomb, 19 N.Y.S.2d
117, 121, 173 Misc. 782.
It is the grouping of things in speculation or practice
because they agree with one another in certain particu-
lars and differ from other things in those particulars.
Southern Package Corporation v. State Tax Commission,
164 So. 45, 47, 174 Miss. 212; Anderson v. Board of Public
Instruction of Hillsborough County, 102 Fla, 695, 136 So.
334. The putting together of like subjects or facts under
common designation, Tuttle v. Board of Education of Salt
Lake City, 77 Utah, 270, 294 P. 294, 299.
The word may have two meanings, one primarily signi-
fying a division required by statutes, fundamental and sub-
stantial, and the other secondary, signifying an arrange-
ment or enumeration adopted for convenience only. In re
Wichita Falls & Southern Ry. Co., D.C.Tex., 30 F.Supp.
750, 751.
In the practice of the English chancery division, where
an administration action, it appears to the judge (or
chief clerk) that any of the parties form a class having
the same interest, he may require them to be represented
by one solicitor, to prevent expense of each attending by
separate solicitors. In practice the term is also applied to
the directions given by the chief clerk as to which of the
parties are to attend on each of the accounts and in-
quiries directed by the judgment. Sweet.
CLASSIFICATION OF RISKS. Term in fire in-
surance to the nature and situation of the articles
insured, and in accident insurance to the occupa-
tion of the applicant. Hopkins v. Connecticut Gen-
eral Life Ins, Co., 225 N.Y. 76, 121 N.E. 465, 467.
CLASSIFIED. Grouped in classes. People v.
Johnson, 42 Cal.App.2d Supp. 827, 109 P.2d 770, 774.;
CLASSIFIED CIVIL SERVICE. The primary
meaning is that there be classification, while sec-
ondary meaning is mere arrangement or enumera-
tion in schedule of titles of positions. Matter of
Merriweather v. Roberts, 274 N.Y.S. 188, 190, 152
Misc. 57.
CLASSIFY. Group. Breslav v. New York &
Queens Electric Light & Power Co., 291 N.Y.S. 932,
935, 249 App.Div. 181; Esquire, Inc., v. Walker,
D.C.D.C., 55 F.Supp. 1015, 1021.
CLAUSE. A single paragraph or subdivision of a
legal document, such as a contract, deed, will, con-
stitution, or statute. Sometimes a sentence or part
of a sentence. Bee Line Transp. Co. v. Connecti-
cut Fire Ins. Co. of Hartford, C.C.A.N.Y., 76 F.2d
759, 760.
CLAUSE IRRITANT. In Scotch law. By this
clause, in a deed or settlement, the acts or deeds
• of a tenant for life or other proprietor, contrary
to the conditions of his right, become null and
void; and by the "resolutive" clause such right
becomes resolved and extinguished. Bell.
CLAUSE POTESTATIVE. In French law. The
name given to the clause whereby one party to
a contract reserves to himself the right to annul
it.
CLAUSE ROLLS. In English law. Rolls which
contain all such matters of record as were commit-
ted to close writs; these rolls are preserved in
the Tower.
CLAUSULA. A clause; a sentence or part of a
sentence in a written instrument or law.
CLAUSULA DEROGATIVA. A clause in a will
which provides that no will subsequently made is
to be valid. The latter would still be valid, but
there would be ground for suspecting undue in-
fluence. Grotius.
CLAUSULA GENERALIS DE RESIDUO NON
EA COMPLECTITUR QUIE NON EJUSDEM
SINT GENERIS CUM IIS QUAZE SPECIATIM
DICTA FUERANT. A general clause of remain-
! der does not embrace those things which are not
of the same kind with those which had been spe-
cially mentioned. Lofft, Appendix, 419.
CLAUSULA GENERALIS NON REFERTUR AD
EXPRESSA. 8 Coke, 154. A general clause does
not refer to things expressed.
CLAUSULA QUZE ABROGATIONEM EXCLUDIT
AB INITIO NON VALET. A clause [in a law]
which precludes its abrogation is void from the
beginning. Bac.Max. 77.
CLAUSULA VEL DISPOSITIO INUTILIS PER
PRIESUMPTIONEM REMOTAM, VEL CAUSAM
EX POST FACTO NON FULCITUR. A useless
clause or disposition [one which expresses no
more than the law by intendment would have sup-
plied] is not supported by a remote presumption,
[or foreign intendment of some purpose, in re-
gard whereof it might be material,] or by a cause
arising afterwards, [which may induce an opera-
tion of those idle words.] Bac.Max. 82, regula 21.
CLAUSULiE INCONSUETIE SEMPER INDUC-
UNT SUSPICIONEM. Unusual clauses [in an in-
strument] always induce suspicion. 3 Coke, 81.
CLAUSUM. Lat. Close, closed up, sealed. In-
closed, as a parcel of land.
In old English law. Close. Closed.
A writ was either clausum (close) or apertum (open).
Grants were said to be by literce patentce (open grant) or
literce clausce (close grant) ; 2 Bla.Comm. 346. Occurring
in the phrase quare clausum fregit (Rucker v. McNeely, 4
Blackf. [Ind.] 181), it denotes in this sense only realty in
which the plaintiff has some exclusive interest, whether for
a limited or unlimited time or for special or for general
purposes ; 1 Chit.P1. 174; Austin v. Sawyer, 9 Cow. (N.Y.)
39; 6 East, 606.
CLAUSUM FREGIT. L. Lat. (He broke the
close.) In pleading and practice. Technical
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CLEAR
words formerly used in certain actions of tres-
pass, and still retained in the phrase quare claus-
urn fregit (q. v.).
CLAUSUM PASCHIIE. In English law. The mor-
row of the utas, or eight days of Easter; the end
of Easter; the Sunday after Easter-day. 2 Inst.
157.
CLAUSURA. In old English law. An inclosure.
Clausura heyce, the inclosure of a hedge. Cowell.
CLAVES CURVE, The keys of the court. They
were the officers of the Scotch courts, such as
clerk, doomster, and serjeant. Burrill.
CLAVES INSULIE. In Manx law. The keys of
the Island of Man, or twelve persons to whom all
ambiguous and weighty causes are referred.
CLAVIA. In old English law. A club or mace;
tenure per serjeantiam clavice, by the serjeanty
of the club or mace. Cowell.
CLAVIGERATUS. A treasurer of a church.
CLAWA. A close, or small inclosure. Cowell.
CLEAN. Irreproachable; innocent of fraud or
wrongdoing; free from defect in form or sub-
stance; free from exceptions or reservations. It is
a very elastic adjective, however, and is particular-
ly dependent upon context. Clampitt v. St. Louis
Southwestern R. Co. of Texas, Tex.Civ.App., 185
S.W. 342, 344.
CLEAN BILL OF HEALTH. One certifying that
no contagious or infectious disease exists, or certi-
fying as to healthy conditions generally without
exception or reservation.
CLEAN BILL OF LADING. One without excep-
tion or reservation as to the place or manner of
stowage of the goods, and importing that the
goods are to be (or have been) safely and prop-
erly stowed under deck. The Delaware, 14 Wall.
596, 20 L.Ed. 779; The St. Johns N. F., C.C.A.
N.Y., 272 F. 673, 674. One which contains nothing
in the margin qualifying the words in the bill of
lading itself. The Isla de Panay, C.C.A.N.Y., 292
F. 723, 730; Thomas Roberts & Co. v. Calmar S. S.
Corp., D.C.Pa., 59 F.Supp. 203, 209.
CLEAN HANDS. Equitable relief may be denied
on ground of deceit or impurity of motive, O'Brien
v. Hamill, 264 N.Y.S. 557, 147 Misc. 709; fraud or
wilful misconduct, Eresch v. Braecklein, C.C.A.
Kan., 133 F.2d 12, 14; Margolis v. Burke, Sup., 53
N.Y.S.2d 157, 161, 162; unjust and unfair conduct,
Dutch Maid Bakeries v. Schleicher, 58 Wyo. 374,
131 P.2d 630, 634; unlawful or inequitable conduct,
Rhodes v. Miller, 179 So. 430, 432, 189 La. 288;
Lodati v. Lodati, 52 N.Y.S.2d 119, 120, 268 App.
Div. 1003; wrongdoing, Dales v. Muir, 351 Pa.
187, 40 A.2d 476, 477.
The maxim is confined to misconduct in relation to or
connected with the matter in litigation. Teuscher v.
Grogg, 136 Okl. 129, 276 P. 753, 760, 66 A.L.R. 143; Hart-
man v. Cohn, 350 Pa. 41, 38 A.2d 22, 25. It is inapplicable
where to withhold relief would offend public morals more
than to grant relief, Furman v. Furman, 34 N.Y.S.2d 699,
704, 178 Misc. 582; and where result will be to leave prop-
erty in hands of one having no claim thereto or require
further litigation, Harrell v. Allen, 183 Va. 722, 33 S.E.2d
222, 226. The act must prejudicially affect defendant,
Wiley v. Wiley, 59 Cal.App.2d 840, 139 P.2d 950, 951. But
'it has been held that application of maxim is not limited to
a case where the iniquitous action is one of which the mov-
ing party may personally complain. Leo Feist, Inc. v.
Young, D.C.Wis., 46 F.Supp. 622, 628.
CLEAN OIL. Oil which has 3 per cent. or less
by volume of water and sediment. Alamitos
Land Co. v. Shell Oil Co., 3 Ca1.2d 396, 44 P.2d 573,
575.
CLEAN WATER. Water that is not filthy or pol-
luted. U. S. v. Durst, D.C.W.Va., 59 F.Supp. 891,
894.
CLEAR. Obvious; beyond reasonable doubt; per-
spicuous; plain.
Free from all limitation, qualification, question, or short-
coming. Condorodis v. Kling, 33 Ohio App. 452, 169 N.E.
836, 838. Ex parte Williams, 128 Tex.Cr.R. 148, 79 S.W.2d
325, 326; Free from incumbrance, obstruction, burden,
limitation, etc., Frank v. Murphy, 64 Ohio App. 501, 29 N.E.
2d 41, 43; Plain, evident, free from doubt or conjecture,
also unincumbered, free from deductions or drawbacks,
Ketch v. Smith, 131 Okl. 263, 268 P. 715, 717. That which
can be seen without dimness, Bremner v. Marc Eidlitz &
Son, 118 Conn. 666, 174 A. 172, 174.
CLEAR AND CONVINCING PROOF. Generally,
this phrase and its numerous variations mean
proof beyond a reasonable, i. e., a well-founded
doubt. Southwestern Bell Telephone Co. v. City
of San Antonio, Tex., D.C.Tex., 4 F.Supp. 570, 573.
Some cases give a less rigcrous, but somewhat
uncertain, meaning, viz., more than a preponder-
ance but less than is required in a criminal case.
O'Briant v. Lee, 212 N.C. 793, 195 S.E. 15, 20.
A higher degree of proof than weight of the evidence,
Snyderwine v. McGrath, 343 Pa. 245, 22 A.2d 644, 647. In-
dependent facts and circumstances which are, in opinion
of court and jury, strong, Wright v. Austin, Tex.Civ.App.,
175 S.W.2d 281, 284; it shall be found that witnesses are
credible, that they distinctly remember facts to which
they testify, that they narrate details exactly, and that
their statements are true, McDonnell v. General News
Bureau, C.C.A.Pa., 93 F.2d 898, 901. The degree of proof
which will produce in the mind of the court a firm belief
or conviction. In re Chappell, Ohio App., 33 N.E.2d 393,
397. Evidence that convinced a presumably unbiased and
unprejudiced jury, Pegues v. Dilworth, 134 Tex. 169, 132
S.W.2d 582, 586. Proof sufficient to convince ordinarily
prudent minded people. Rowland v. Holt, 253 Ky. 718, 70
S.W.2d 5, 9. The proof need not be conclusive. Hobart v.
Hobart Estate Co., 26 Ca1.2d 412, 159 P.2d 958, 976.
CLEAR AND PRESENT DANGER. Immediately
serious violence is expected or is advocated or past
conduct furnishes reason to believe such advocacy
is contemplated. United States v. Korner, D.C.Cal.,
56 F.Supp. 242, 248.
CLEAR ANNUAL VALUE. The net yearly value
to the possessor of the property, over and above
taxes, interest on mortgages, and other charges
and deductions. Shelton v. Campbell, 109 Tenn.
690, 72 S.W. 112.
CLEAR ANNUITY. The devise of an annuity
"clear" means an annuity free from taxes (Hodg-
worth v. Crawley, 2 Atk. 376) or free or clear of
legacy or inheritance taxes. In re Bispham's Es-
tate, 24 Wkly.Notes Cas. (Pa.) 79.
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CLEAR,
CLEAR CHANCE. A chance is a clear chance if
exercise of vigilance would have discovered help-
less peril and avoided the injury. Leinbach v.
Pickwick Greyhound Lines, 138 Kan. 50, 23 P.2d
449, 456, 92 A.L.R. 1.
CLEAR DAYS. If a certain number of clear days
be given for the doing of any act, the time is to
be reckoned exclusively, as well of the first day
as the last. Hodgins v. Hancock, 14 Mees. & W.
120; State v. Marvin, 12 Iowa 502.
CLEAR EVIDENCE OR PROOF. Evidence which
is positive, precise and explicit, which tends di-
rectly to establish the point to which it is adduced
and is sufficient to make out a prima facie case.
Reynolds v. Blaisdell, 23 R.I. 16, 49 A. 42.
It necessarily means a clear preponderance. It may
mean no more than a fair preponderance of proof but
may be construed as requiring a higher degree of proof.
It may convey the idea, under emphasis, of certainty. It
may be understood as meaning beyond doubt. The expres-
sion is equivocal and mischievous. Aubin v. Duluth St. Ry.
Co., 169 Minn. 342, 211 N.W. 580, 583.
CLEAR LEGAL RIGHT. A right inferable as a
matter of law from uncontroverted facts. Fed-
eral Land Bank of Springfield v. Pickard, 9 N.Y.S.
2d 696, 707, 169 Misc. 753.
CLEAR MARKET PRICE. Fair market price,
In re Spitly's Estate, 124 Cal.App. 642, 13 P.2d 385,
386.
CLEAR MARKET VALUE. With regard to in-
heritance tax, highest price obtainable. In re
Nicklas' Estate, 132 N.J.L. 450, 41 A.2d 122, 124;
net value, Hamlen v. Martin, 128 N.J.Eq. 393, 16
A.2d 457, 459; sum which property would bring on
a fair sale by a willing seller not obliged to sell to
a willing buyer not obliged to buy, or fair mar-
ket value, or cash value, In re Ryerson's Estate,
239 Wis. 120.
CLEAR RESIDUE. Addition of income from
funds, used to pay decedent's debts, administra-
tion expenses, and general legacies, to residue of
estate. In re Foster's Will, 256 N.Y.S. 383, 385,
143 Misc. 191.
CLEAR TITLE. Good title, Clark v. Ray, Tex.
Civ.App., 96 S.W.2d 808, 813; marketable title,
Gantt v. Harper, 82 Mont. 393, 267 P. 296, 298;
contra, Frank v. Murphy, 64 Ohio App. 501, 29 N.E.
2d 41, 43; one free from incumbrance, obstruction,
burden, or limitation. Frank v. Murphy, 64 Ohio
App. 501, 29 N.E.2d 41, 43.
For a clear deed, see Rohr v. Kindt, 3 Watts & S. (Pa.)
563, 39 Am.Dec. 53; clear of expense; 2 Ves. & B. 341;
clear of assessments; Peart v. Phipps, 4 Yeates (Pa.) 386;
clear bill of lading; William Zoller Co. v. Hartford Fire
Ins. Co., 272 Pa. 386, 116 A. 359, 362. See, also, Clean Bill
of Lading.
CLEAR TITLE OF RECORD. Freedom from ap-
parent defects, grave doubts, and litigious uncer-
tainties; such title as a reasonably prudent per-
son, with full knowledge, would accept. Tull v.
Milligan, 173 Okl. 131, 48 P.2d 835, 842.
CLEAR VALUE. With regard to net value after
payment of debts and expenses of administration,
Bouse v. Hutzler, 180 Md. 682, 26 A.2d 767, 769, 141
A.L.R. 843; sum which, after deducting amount
necessary for payment of such taxes, yielded the
amount of the specific legacies where will di-
rected that taxes should not be deducted from leg-
acies. Bouse v. Hutzler, 180 Md. 682, 26 A.2d 767,
769, 141 A.L.R. 843.
CLEARANCE. In Maritime law. The right of
a ship to leave port. The act of clearing or leav-
ing port. The certificate issued by the collector
of a port evidencing the power of the ship to leave
port. Hamburg-American Steam Packet Co. v.
U. S., C.C.A.N.Y., 250 F. 747, 759. Worcester,
Dict.
In contract for exhibition of motion pictures, the
interval of time between conclusion of exhibition
in one theater and commencement of exhibition at
another theater. Waxmann v. Columbia Pictures
Corporation, D.C.Pa., 40 F.Supp. 108, 111.
CLEARANCE CARD. A letter given to an em-
ployee by his employer, at the time of his dis-
charge or end of service, showing the cause of
such discharge or voluntary quittance, the length
of time of service, his capacity, and such other
facts as would give to those concerned information
of his former employment. Cleveland, C., C. & St.
L. R. Co. v. Jenkins, 174 Ill. 398, 51 N.E. 811, 62
L.R.A. 922, 66 Am.St.Rep. 296.
CLEARING. The departure of a vessel from port,
after complying with the customs and health laws
and like local regulations.
In mercantile law. A method of making ex-
changes and settling balances, adopted among
banks and bankers.
CLEARING-HOUSE. A device or an association,
usually unincorporated, for adjustment and pay-
ment of daily balances between banks in a city.
Andrew v. Farmers' & Merchants' Sa y . Bank of
Moravia, 215 Iowa 1336, 245 N.W. 226, 229.
CLEARING LOAN. One made to a bond dealer
while an issue of bonds are being sold. In re
Stone's Will, 211 Wis. 518, 248 N.W. 446, 447.
CLEARING TITLE. Acts or proceedings neces-
sary to render title marketable. Johnston v. Cox,
114 Fla. 243, 154 So. 206.
CLEARINGS. Method of making exchanges and
settling balances among banks and bankers. An-
drew v. Farmers' & Merchants' Sa y . Bank of
Moravia, 215 Iowa 1336, 245 N.W. 226, 228.
CLEARLY. Visible, unmistakable, in words of no
uncertain meaning. Johnson v. Grady County, 50
Oki. 188, 150 P. 497.
Beyond a question or beyond a reasonable doubt, John-
son v. Grady County, 50 Okl. 188, 150 P. 497, 502; honestly,
straightforwardly, and frankly, Huntington Securities Cor-
poration v. Busey, C.C.A.Ohio, 112 F.2d 368, 370; plainly,
Huntington Securities Corporation v. Busey, C.C.A.Ohio,
112 F.2d 368, 370; without obscurity, without obstruction,
without entanglement or confusion, without uncertainty.
Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611, 614.
CLEARLY ERRONEOUS. Findings when based
upon substantial error in proceedings or misappli-
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cation of law, Kauk v. Anderson, C.C.A.N.D., 137
F.2d 331, 333; or when unsupported by substantial
evidence, or contrary to clear weight of evidence
or induced by erroneous view of the law. Gasifier
Mfg. Co. v. General Motors Corporation, C.C.A.
Mo., 138 F.2d 197, 199; Smith v. Porter, C.C.A.
Ark., 143 F.2d 292, 294.
CLEARLY EXPRESSED IN TITLE. Title must
so express subject that lawmakers and people may
not be left in doubt as to matters treated. Home
Insurance Co. of New York v. Dahmer, 167
Misc. 893, 150 So. 650, 651.
CLEARLY PROVED. Preponderance of the evi-
dence. Olson v. Union Oil Co. of California, Cal.
App., 25 Cal.App.2d 627, 78 P.2d 446, 447.
Proof sufficient to satisfy mind of finder of fact. that its
weight is such as to cause a reasonable person to accept
the fact as established. In re Frihauf, 58 Wyo. 479, 135 P.
2d 427, 433.
CLEARLY REFLECTS THE INCOME. Any meth-
od of accounting which clearly reflects a reason-
able allowance for depreciation. Chicago & N. W.
R. Co. v. Commissioner of Internal Revenue, C.C.
A.7, 114 F.2d 882, 885.
CLEMENT'S INN. An inn of chancery. See Inns,
of Chancery.
CLEMENTINES. In canon law. The collection
of decretals or constitutions of Pope Clement V.,
made by order of John XXII., his successor, who
published it in 1317.
CLENGE. In old Scotch law. To clear or acquit
of a criminal charge. Literally, to cleanse or
clean.
CLEP AND CALL. In old Scotch practice. A
solemn form of words prescribed by law, and used
in criminal cases, as in pleas of wrong and unlaw.
CLERGY. The whole body of clergymen or minis-
ters of religion. Also an abbreviation for "benefit
of clergy." See Benefit of Clergy.
Regular clergy. Monks who lived secundum regulas (ac-
cording to the rules) of their respective houses or societies
were so denominated in old English Law in contradistinc-
tion to the parochial clergy, or "secular" clergy. 1 Chit.
Bl. 387, note.
CLERGYABLE. In old English law. Allowing
of, or entitled to, the benefit of clergy (privilegium
clericale). Used of persons or crimes. 4 Bla.
Com. 371. See Benefit of Clergy.
CLERGYMAN. Spiritual representative of church.
In re Swenson, 183 Minn. 602, 237 N.W. 589, 591.
CLERICAL. Pertaining to clergymen; or pertain-
ing to the office or labor of a clerk.
CLERICAL ERROR. Generally, a mistake in
writing or copying. 1 L.Raym. 183; Los Angeles
Shipbuilding & Dry Dock Corporation v. Los An-
geles County, 22 Cal.App.2d 418, 71 P.2d 282;
Franklin v. State, 240 Ala. 57, 197 So. 58, 59.
It may include error apparent on face of instrument,
record, indictment or information, In re Goldberg's Es-
tate, 10 Ca1.2d 709, 76 P.2d 508, 512; error in respect of
matters of record, Shotwell v. State, 135 Tex.Cr.R. 366, 120
S.W.2d 97; errors, mistakes, or omissions by clerk, writer,
counsel, or judge which are not the result of exercise of
judicial function; Pacific Finance Corporation of Cali-
fornia v. La Monte, 64 Idaho 438, 133 P.2d 921, 922; Wil-
son v. City of Fergus Falls, 181 Minn. 329, 232 N.W. 322,
323; failure of clerk to enter order, Keller v. Cleaver, 67
P.2d 131, 133,• 20 Cal.App.2d 364; omission in statutory
provision, Craig v. State, 164 S.W.2d 1007, 1008, 204 Ark.
798; order fixing tax rate below statutory rate, In re
Jagnow's Estate, 266 N.Y.S. 785, 788, 148 Misc. 657; plac-
ing of case on calendar without notice, New England Fur-
niture & Carpet Co. v. Willcuts, D.C.Minn., 55 F.2d 983,
987; purported order incongruous and irrelevant to sur-
rounding recitals, Carpenter v. Pacific Mut. Life Ins. Co.
of California, 14 Cal.2d 704, 96 P.2d 796, 799; signature by
judge to judgment which does not express judicial desire
or intention, Bastajian v. Brown, 19 Cal.2d 209, 120 P.2d
9, 12.
CLERICAL MISPRISION. Mistake or fraud per-
petrated by clerk of court which is susceptible of
demonstration by face of record, or a clerical er-
ror, which is an error by clerk in transcribing or
otherwise apparent on the face of the record.
Ballew v. Fowler, 285 Ky. 149, 147 S.W.2d 65, 66.
But see Newman v. Ohio Valley Fire & Marine
Ins. Co., 221 Ky. 616, 299 S.W. 559, 560.
CLERICAL TONSURE. The having the head
shaven, which was formerly peculiar to clerks, or
persons in orders, and which the coifs worn by
serjeants at law are supposed to have been intro-
duced to conceal. 1 Bl.Comm. 24, note t; 4 Bl.
Comm. 367.
CLERICALE PRIVILEGIUM. In old English law.
The clerical privilege; the privilege or benefit of
clergy.
CLERICI DE CANCELLARIA; CLERICI DE
CURSU. Clerks of the chancery. See Cursitors.
CLERICI NON PONANTUR IN OFFICIIS. Co.
Litt. 96. Clergymen should not be placed in of-
fices; i. e., in secular offices. See Lofft, 508.
CLERIC! PRIENOTARIL The six clerks in chan-
cery. 2 Reeve, Eng.Law, 251.
CLERICO ADMITTENDO. See Admittendo Cleri-
CO.
CLERICO CAPTO PER STATUTUM MERCA-
TORUM. A writ for the delivery of a clerk out
of prison, who was taken and incarcerated upon
the breach of a statute merchant. Reg.Orig. 147.
CLERICO CONVICTO COMMISSO GAOLZE IN
DEFECTU ORDINARII DELIBERANDO. An an-
cient writ, that lay for the delivery to his ordinary
of a clerk convicted of felony, where the ordinary
did not challenge him according to the privilege
of clerks. Reg.Orig. 69.
CLERIC() INFRA SACROS ORDINES CONSTI-
TUTO, NON ELIGENDO IN OFFICIUM. A writ
directed to those who had thrust a bailiwick or
other office upon one in holy orders, charging them
to release him. Reg.Orig. 143.
CLERICUS. In old English law. A clerk or
priest; a person in holy orders; a secular priest;
a clerk of a court. An officer of the royal house-
hold, having charge of the receipt and payment of
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moneys, etc. Fleta enumerates several of them,
with their appropriate duties; as clericus coquincs,
clerk of the kitchen; clericus panetr' et butelr',
clerk of the pantry and buttery. Lib. 2, cc. 18, 19.
In Roman law. A minister of religion in the
Christian church; an ecclesiastic or priest. Cod.
1, 3; Nov. 3, 123, 137. A general term, including
bishops, priests, deacons, and others of inferior
order. Brissonius. Also of the amanuenses of
the judges or courts of the king. Du Cange.
CLERICUS ET AGRICOLA ET MERCATOR,
TEMPORE BELLI, UT ORET, COLAT, ET COM-
MUTET, PACE FRUUNTUR. 2 Inst. 58. Clergy-
men, husbandmen, and merchants, in order that
they may preach, cultivate, and trade, enjoy peace
in time of war.
CLERICUS MERCATI. In old English law. Clerk
of the market. 2 Inst. 543.
CLERICUS NON CONNUMERETUR IN DUABUS
ECCLESIIS. 1 Rolle. A clergyman should not
be appointed to two churches.
CLERICUS PAROCHIALIS. In old English law.
A parish clerk.
CLERIGOS. In Spanish law. Clergy; men cho-
sen for the service of God. White, New Recop. b.
1, tit. 5, ch. 4.
CLERK. One who sells goods, waits on customers,
or engages in clerical work such as bookkeeping,
copying, transcribing, letter writing, tabulating,
etc., a stenographer, etc., Appeal of Walker, 294
Pa. 385, 144 A. 288, 289; In re Goldman Stores,
D.C.La., 3 F.Supp. 936, 937.
In New England, used to designate a corporation official
who performs some of the duties of a secretary. As used
in statute service on clerk of corporation, some general offi-
cer of the corporation, Baker v. New York Cent. R. Co., 16
N.Y.S.2d 78, 79, 258 App.Div. 854.
A person employed in a public office, or as an
officer of a court, whose duty is to keep records or
accounts. In re Allen, N.J.Sup., 95 A. 215, 216;
Crawford v. Roloson, 254 Mass. 163, 149 N.E. 707,
709. See Clerk of Court.
A person serving a practicing solicitor under binding arti-
cles in England, for the purpose of being admitted to prac-
tice as a solicitor. Under exemption provision of Civil
Service Law a private or confidential clerk of elective
judicial officer. Neary v. O'Connor, 18 N.Y.S.2d 634, 637,
173 Misc. 696.
A person in holy orders; a clergyman; an in-
dividual attached to the ecclesiastical state, and
who has the clerical tonsure. See 4 Bl.Comm. 366,
367.
CLERK OF ARRAIGNS. In English law. An as-
sistant to the clerk of assise. His duties are in
the crown court on circuit.
CLERK OF ASSISE. In English law. Officers
who officiate as associates on the circuits. They
record all judicial proceedings done by the judges
on the circuit.
CLERK OF COURT. An officer of a court of jus-
tice who has charge of the clerical part of its busi-
ness, who keeps its records and seal, issues proc-
ess, enters judgments and orders, gives certified
copies from the records, etc. Ross v. Heathcock,
57 Wis. 89, 15 N.W. 9; Gordon v. State, 2 Tex.
App. 154. An assistant whose principal duty is
to make correct memorial of court's orders and
directions. People's Ditch Co. v. Foothill Irr. Dist.,
123 Cal.App. 251, 11 P.2d 86, 88.
CLERK OF ENROLLMENTS. In English law.
The former chief officer of the English enrollment
office, (q. v.) He now forms part of the staff of
the central office.
CLERK OF THE CROWN IN CHANCERY. See
Crown Office in Chancery.
CLERK OF THE HOUSE OF COMMONS. An
officer of the English house of commons appointed
by the crown. He makes entries, remembrances,
and journals of the things done and passed in the
house. He signs all orders of the house, indorses
the bills sent or returned to the lords, and reads
whatever is required to be read in the house. He
has the custody of all records and other docu-
ments. May, Parl.Pr. 236.
CLERK OF THE MARKET. The overseer or
superintendent of a public market. In old English
law, he was a quasi judicial officer, having power
to settle controversies arising in the market be-
tween persons dealing there. Called "clericus
mercati." 4 Bl.Comm. 275.
CLERK OF THE PARLIAMENTS. One of the
chief officers of the house of lords. He is appoint-
ed by the crown, by letters patent. On entering
office he makes a declaration to make true entries
and records of the things done and passed in the
parliaments, and to keep secret all such matters
as shall be treated therein. May, Parl.Pr. 238.
CLERK OF THE PEACE. In English law. An of-
ficer whose duties are to officiate at sessions of the
peace, to prepare indictments, and to record the
proceedings of the justices, and to perform a num-
ber of special duties in connection with the affairs
of the county.
CLERK OF THE PETTY BAG. See Petty Bag
Office.
CLERK OF THE PRIVY SEAL. These officers at-
tend the lord privy seal, or, in absence ox tile lora
privy seal, the principal secretary of state. Their
duty is to write and make out all things that are
sent by warrant from the signet to the privy seal,
and which are to be passed to the great seal; and
also to make out privy seals (as they are termed)
upon any special occasion of his majesty's affairs.
Cowell.
CLERK OF THE SIGNET. An officer, in Eng-
land, whose duty it is to attend on the king's prin-
cipal secretary, who has the custody of the privy
signet, as well for the purpose of sealing his maj-
esty's private letters, as also grants which pass
his majesty's hand by bill signed. Cowell.
CLERK OF THE TABLE. An official of the Brit-
ish House of Commons who advises the speaker
on all questions of order.
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CLERKS OF INDICTMENTS. Officers attached
to the central criminal court in England, and to
each circuit. They prepare and settle indictments
against offenders, and assist the clerk of arraigns.
CLERKS OF RECORDS AND WRITS. Officers
formerly attached to the English court of chan-
cery, whose duties consisted principally in sealing
bills of complaint and writs of execution, filing af-
fidavits, etc. By the judicature (officers') act,
1879, they have been transferred to the central
office of the supreme court, under the title of
"Masters of the Supreme Court," and the office
has been abolished. Sweet.
CLERKS OF SEATS. In the principal registry of
the probate division of the English high court,
they discharge the duty of preparing and passing
the grants of probate and letters of administra-
tion, take bonds from administrators, receive
caveats against a grant being made, etc. Sweet.
CLERKSHIP. The period which must be spent
by a law-student in the office of a practising attor-
ney before admission to the bar. 1 Tidd Pr. 61,
et seq. In re Dunn, 43 N.J.Law, 359, 39 Am.Rep.
600.
In old English practice. The art of drawing pleadings
and entering them on record in Latin, in the ancient court
hand; otherwise called "skill of pleading in actions at the
common law."
CLIENS. Lat. In the Roman law. A client or de-
pendent. One who depended upon another as his
patron or protector, adviser or defender, in suits
at law and other difficulties. Dionys. ii. 10;
Adams, Rom.Ant. 33.
CLIENT. A person who employs or retains an
attorney, or counsellor, to appear for him in
courts, advise, assist, and defend him in legal pro-
ceedings, and to act for him in any legal business.
McCreary v. Hoopes, 25 Miss. 428; McFarland v.
Crary, 6 Wend., N.Y., 297; Cross v. Riggins, 50
Mo. 335. It should include one who disclosed
confidential matters to attorney while seeking pro-
fessional aid, whether attorney was employed or
not. Sitton v. Peyree, 117 Or. 107, 241 P. 62, 64.
CLIENTELA. In old English law. Clientship, the
state of a client; and, correlatively, protection,
patronage, guardianship.
CLIFFORD'S INN. An inn of chancery. See Inns
of Chancery.
CLINICAL TESTS. Observations made of patient
by physician or surgeon without the aid of instru-
ments, apparatus or chemical examinations for
the discovery of the existence or progress of dis-
ease or the patient's condition. Peterson v. Wi-
dule, 157 Wis. 641, 147 N.W. 966, 970, 52 L.R.A.,
N.S., 778.
CLIPPED SOVEREIGNTY. In the relations of
the several states of the United States to other
nations, the states have what is termed a clipped
sovereignty. Anderson v. N. V. Transandine
Handelmaatschappij, Sup., 28 N.Y.S.2d 547, 552.
Black's Law Dictionary Revised 4th Ed.-21
CLITO. In Saxon law. The son of a king or em-
peror. The next heir to the throne; the Saxon
adeling. Spelman.
CLOERE. A jail; a prison or dungeon.
CLOSE, v. To finish, terminate, complete, wind
up; as, to "close" an account, a bargain, an es-
tate, or public books, such as tax books. Bilaf sky
v. Abraham, 183 Mass. 401, 67 N.E. 318.
To shut up, so as to prevent entrance or access
by any person; as in statutes requiring saloons
to be "closed" at certain times, which further im-
plies an entire suspension of business, Texas Co.
v. Texarkana Mach. Shops, Tex.Civ.App., 1 S.W.
2d 928, 931.
CLOSE, n. A...portion of land, as a field,Inaue,
as by a hedge, fence, or other visible inclosure, 3
Bl.Comm. 209, or by an invisible ideal boundary
founded on limit of title. levejAfftoita ssz.
The Interest of a • erson in an partic iece • f
:r , w e er actua y nc ose•or no Meade v. Wat.
son, 67 Cal. 591, 8 Pac. 311.
In practice. The word means termination;
winding up. Thus the close of the pleadings is
where the pleadings are finished, i. e., when issue
has been joined.
CLOSE, adj. In practice. Closed or sealed' up.
A term applied to writs and letters, as distin-
guished from those that are open or patent.
CLOSE COPIES. Copies of legal documents which
might be written closely or loosely at pleasure;
as distinguished from office copies.
CLOSE CORPORATION. See Corporation.
CLOSE-HAULED. In admiralty law, this nauti-
cal term means the arrangement or trim of a ves-
sel's sails when she endeavors to make a progress
in the nearest direction possible towards that
point of the compass from which the wind blows.
But a vessel may be considered as close-hauled,
although she is not quite so near to the wind as
she could possibly lie. Chadwick v. Packet Co.,
6 El. & Bl. 771.
CLOSE JAIL EXECUTION. A body execution
which has indorsed in or upon it the statement
that the defendant ought to be confined in close
jail. Ex parte Thompson, 111 Vt. 7, 9 A.2d 107.
CLOSE MOLDS. Molds in two parts, called the
drag and the case (or cope) forming together a
two-part flask, one part being placed over the oth-
er and each being impressed with one half of
the matrix or pattern. Cole v. U. S., C.C.A.Colo.,
269 F. 250, 252.
CLOSE ROLLS. Rolls containing the record of
the close writs (literce clausce) and grants of
the king, kept with the public records. 2 Bl.
Comm. 346.
CLOSE SEASON. The season of the year or pe-
riod of time in which the taking of particular
game or fish is prohibited, or in which all hunting
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or fishing is forbidden by law. State v. Theriault,
70 Vt. 617, 41 A. 1030, 43 L.R.A. 290, 67 Am.St.Rep.
695. Cf. Fence-Month.
CLOSE TO. Near; very near; immediately ad-
joining. Govier v. Brechler, 159 Wis. 157, 149 N.
W. 740, 742.
CLOSE WRIT. See Writ.
CLOSED COURT. A term sometimes used to des-
ignate the Common Pleas Court of England when
only serjeants could argue cases, which practice
persisted until 1833.
CLOSED SEASON. The same as "close season"
(q. v.).
CLOSED SHOP. Such shop exists where worker
must be member of union as condition precedent
to employment. Miners in General Group v. Hix,
123 W.Va. 637, 17 S.E.2d 810, 813.
CLOSED SHOP CONTRACT. A contract requir-
ing employer to hire only union members and to
discharge non-union members and requiring that
employees, as a condition of employment, remain
union members. Silva v. Mercier, Cal.App., 187
P.2d 60, 64.
CLOTHING WOOL. Short-stapled wool prepared
by carding, as distinguished from "combing wool,"
which is long-stapled wool prepared by combing.
U. S. v. Stone & Downer Co., 12 Ct.Cust.App. 557,
558.
CLOTURE. The procedure in deliberative as-
semblies whereby debate is closed.
Introduced in the English parliament in the session of
1882.
It is generally effected by moving the previous question.
See Roberts, Rules of Order §§ 20, 58a.
CLOUD ON TITLE. An outstanding claim or in-
cumbrance which, if valid, would affect or impair
the title of the owner of a particular estate, and
on its face has that effect, but can be shown by
extrinsic proof to be invalid or inapplicable to
the estate in que3tion. A conveyance, mortgage,
judgment, tax-levy, etc., may all, in proper cases,
constitute a cloud on title. Parker v. Vallerand,
136 Me. 519, 8 A.2d 594; Anderson v. Guenther,
144 Or. 446, 25 P.2d 146.
It is not necessary in West Virginia that claim be valid
on its face. Gardner v. Buckeye Savings & Loan Co., 108
W.Va. 673, 152 S.E. 530, 532.
CLOUGH. A valley. Also an allowance for the
turn of the scale, on buying goods wholesale by
weight.
CLUB. A voluntary, incorporated or unincorpo-
rated association of persons for purposes of a
social, literary, or political nature, or the like.
A club is not a partnership. 2 Mees. & W. 172.
Unincorporated Members' Club. A society of persons
each of whom contributes to the fund out of which the
expenses of conducting the society are paid. Van Pelt v.
Hilliard, 75 Fla. 792, 78 So. 693. 695, L.R.A.1918E, 639.
Unincorporated Proprietary Club. One the property and
funds of which belong to a proprietor who usually con-
ducts the club with a view to profit. Van Pelt v. Hilliard,
75 Fla. 792, 78 So. 693, 695.
CLUB-LAW. Rule of violence; regulation by
force; the law of arms.
CLUTCH. A device introduced in the transmis-
sion, some place between the mechanism in which
power is created and the mechanism to which it
is applied, and which serves to make and break
the connection between the two. Eclipse Mach.
Co. v. Harley Davidson Motor Co., C.C.A.Pa., 252
F. 803, 806.
CLYPEUS, or CLIPEUS. In old English law. A
shield; metaphorically one of a noble family.
Clypei prostrate, - noble families extinct. Mat.
Paris, 463.
C/O. A symbol meaning "care of." Internation-
al Store Co. v. Barnes, Mo.App., 3 S.W.2d 1039,
1041.
CO. A prefix meaning with, in conjunction, joint,
jointly, unitedly, and not separately, e. g., co-
trustees, co-executors, co-brokers. Brandenburger
& Marx v. Heimberg, Mun.Ct.N.Y., 34 N.Y.S.2d 935,
938.
Also an abbreviation for "county," (Gilman v. Sheets,
78 Iowa 499, 43 N.W. 299,) and for "company," (Railroad.
Co. v. People, 155 Ill. 299, 40 N.E. 599). It may also in-
dicate a partnership (Jennette v. Coppersmith, 176 N.C. 82,
97 S.E. 54, 55).
COACH. Coach is a generic term. It is a kind
of carriage, and is distinguished from other ve-
hicles, chiefly, as being a covered box, hung on
leathers, with four wheels. Turnpike Co. v. Neil,
9 Ohio 12; Turnpike Co. v. Frink, 15 Pick. (Mass.)
444. A term applied both to vehicles traveling
over roads and upon rails. Bruce Transfer Co. v.
Johnston, 287 N.W. 278, 280, 227 Iowa 50.
COADJUTOR. An assistant, helper, or ally;
particularly a person appointed to assist a bishop
who from age or infirmity is unable to perform
his duty. Olcott v. Gabert, 86 Tex. 121, 23 S.W.
985. Also an overseer, (coadjutor of an executor,)
and one who disseises a person of land not to his
own use, but to that of another.
CO-ADMINISTRATOR. One who is a joint ad-
ministrator with one or more others.
COADUNATIO. A uniting or combining together
of persons; a conspiracy. 9 Coke, 56.
CO-ADVENTURER. One who takes part with
others in an adventure or in a venture or busi-
ness undertaking attended with risk. McRee v.
Quitman Oil Co., 16 Ga.App. 12, 84 S.E. 487; Eas-
ter Oil Corporation v. Strauss, Tex.Civ.App., 52
S.W.2d 336, 344.
COAL NOTE. A species of promissory note, for-
merly in use in the port of London, containing the
phrase "value received in coals." By the statute 3
Geo. II. c. 26, §§ 7, 8, these were to be protected
and noted as inland bills of exchange. But this
was repealed by the statute 47 Geo. III. sess. 2, c.
68, § 28.
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CODE
COALITION. In French law. An unlawful agree-
ment among several persons not to do a thing
except on some conditions agreed upon; particu-
larly, industrial combinations, strikes, etc.; a con-
spiracy.
CO-ASSIGNEE. One of two or more assignees of
the same subject-matter.
COAST, v. To slide down hill upon snow or ice
as on a sled; to ride, glide or move by or as by
the force of gravity as on a bicycle without ped-
aling. Samuelson v. Sherrill, 225 Iowa 421, 280 N.
W. 596, 599.
COAST, n. The edge or margin of a country
bounding on the sea.
The term includes small islands and reefs naturally con-
nected with the adjacent land, and rising above the sur-
face of the water, but not shoals perpetually covered by
water. U. S. v. Pope, 28 Fed.Cas. 630; Hamilton v. Meni-
fee, 11 Tex. 751.
This word is particularly appropriate to the edge of the
sea, while "shore" may be used of the margins of inland
waters.
COAST GUARD. In English law. A body of offi-
cers and men raised and equipped by the commis-
sioners of the admiralty for the defense of the
coasts of the realm, and for the more ready man-
ning of the navy in case of war or sudden emer-
gency, as well as for the protection of the revenue
against smugglers. Mozley & Whitley.
COAST WATERS. Tide waters navigable from
the ocean by sea-going craft, the term embracing
all waters opening directly or indirectly into the
ocean and navigable by ships coming in from the
ocean of draft as great as that of the larger ships
which traverse the open seas. The Britannia,
153 U.S. 130, 14 S.Ct. 795, 38 L.Ed. 660; The Vic-
tory, D.C.Va., 63 F. 636; The Garden City, D.C.
N.Y., 26 F. 773.
COASTER. A vessel plying exclusively between
domestic ports, and usually engaged in domestic
trade; not including pleasure yachts. Belden v.
Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218.
COASTING. Sliding down hill or incline on sled
or car or riding bicycle, without working the ped-
als; Samuelson v. Sherrill, 225 Iowa 421, 280 N.W.
596, 599. Movement of sled or vehicle by momen-
tum due to previously exerted force or force of
gravity. Tyne v. B. F. Goodrich Co., 297 N.Y.S.
425, 428, 252 App.Div. 24; Bryant v. Market St.
Ry. Co., Cal.App., 158 P.2d 18, 22.
COASTING TRADE. In maritime law. Com-
merce and navigation between different places
along the coast of the United States. Commercial
intercourse between different districts in different
states, different districts in same state, or different
places in same district, on sea-coast or on navi-
gable river. Shannon v. Streckfus Steamers, 131
S.W.2d 833, 836, 279 Ky. 649.
COASTWISE. Vessels "plying coastwise" are
those engaged in domestic trade, or plying be-
tween port and port in the United States, San
Francisco v. California Steam Na y . Co., 10 Cal.
504; Petition of Canadian Pac. Ry. Co., D.C.Wash.,
278 F. 180, 202.
COAT ARMOR. Heraldic ensigns, introduced by
Richard I. from the Holy Land, where they were
first invented. Originally painted on shields of the
Christian knights who went to the Holy Land dur-
ing the crusades, to identify them. Wharton.
COBRA-VENOM REACTION. In medical juris-
prudence. A method of serum-diagnosis of in-
sanity from hremolysis by injections of venom of
cobras or other serpents.
COCKBILL. To place the yards of a ship at an
angle with the deck. Pub.St.Mass.1882, p. 1288.
COCKET, In English law. A seal belonging to
the custom-house, or rather a scroll of parchment,
sealed and delivered by the officers of the custom-
house to merchants, as a warrant that their mer-
chandises are entered; likewise a sort of measure.
Fleta, lib. 2, c. ix.
COCKPIT. A name which used to be given to the
judicial committee of the privy council, the coun-
cil-room being built on the old cockpit of. Whitehall
Place.
COCKSETUS. A boatman; a cockswain. Cowell.
COCOTTE. A woman who leads a fast life, one
who gives herself up for money. Also a poached
egg. Rovira v. Boget, 240 N.Y. 314, 148 N.E. 534,
535.
CODE. A collection, compendium or revision of
laws. Chumbley v. People's Bank & Trust Co.,
60 S.W.2d 164, 166,. 166 Tenn. 35. A complete sys-
tem of positive law, scientifically arranged, and
promulgated by legislative authority. Abbott;
a system of rules. Wilentz v. Crown Laundry
Service, 172 A. 331, 332, 116 N.J.Eq. 40. Any
systematic body of law. Wall v. Close, 14 So.2d
19, 26, 203 La. 345.
A "Code" implies compilation of existing laws, systemat-
ic arrangement into chapters, subheads, table of contents,
and index, and revision to harmonize 'conflicts, supply
omissions, and generally clarify and make complete body
of laws designed to regulate completely subjects to which
they relate. Gibson v. State, 214 Ala. 38, 106 So. 231, 35:
The collection of laws *and constitutions made by order
of the Emperor Justinian is distinguished by the appella-
tion of "The Code," by way of eminence. See Code of
Justinian.
A code is to be distinguished from a digest. Digests of
statutes consist of a collection of existing statutes, while
a code is promulgated as one new law covering the whole
field of jurisprudence.
Code civil. The code which embodies the civil
law of France.
It was promulgated in 1804. When Napoleon became
emperor, the name was changed to "Code Napoleon," by
which it is still often designated, though it is now official-
ly styled by its original name of "Code Civil."
Code de commerce. A French code, enacted in 1807, as a
supplement to the Code Napoleon, regulating commercial
transactions, the laws of business, bankruptcies, and the
jurisdiction and procedure of the courts dealing with these
subjects.
Code de procedure civil. That part of the Code Napoleon
which regulates the system of courts, their organization,
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CODE.
civil procedure, special and extraordinary remedies, and
the execution of judgments.
Code d'instruction criminelle. A French code, enacted In
1808, regulating criminal procedure.
Code Napoleon. See Code Civil.
Code noir. Fr. The black code. A body of laws which
formerly regtilated the institution of slavery in the French
colonies.
Code of Justinian. The Code of Justinian (Codex Justi-
nianeus) was a collection of imperial constitutions, com-
piled, by order of that emperor, by a commission, and pro-
mulgated A. D. 529. It comprised twelve books, and was
the first of the four compilations of law which make up the
Corpus Juris Civilis. This name is often met in a connec-
tion indicating that the entire Corpus Juris Civilis is
intended, or, sometimes, the Digest; but its use should be
confined to the Codex.
Code penal. The penal or criminal code of France, enacted
in 1810.
CODEX. Lat. A code or collection of laws; par-
ticularly the Code of Justinian. Also a roll or vol-
ume, and a book written on paper or parchment.
CODEX GREGORIANUS. A collection of im-
perial constitutions made by Gregorius, a Roman
jurist of the fifth century, about the middle of the
century. It contained the constitutions from Had-
rian down to Constantine. Mackeld.Rom.Law, §
63.
CODEX HERMOGENIANUS. A collection of im-
perial constitutions made by Hermogenes, a jurist
of the fifth century. It was nothing more than a
supplement to the Codex Gregorianus, (supra,)
containing the constitutions of Diocletian and
Maximilian. Mackeld.Rom.Law, § 63.
CODEX JUSTINIANEUS. A collection of im-
perial constitutions, made by a commission of ten
persons appointed by Justinian, A.D. 528.
CODEX REPETITIE PRIELECTIONIS. The new
code of Justinian; or the new edition of the first
or old code, promulgated A.D. 534, being the one
now extant. Mackeld.Rom.Law, § 78. Tayl.Civil
Law, 22,
CODEX THEODOSIANUS. A code compiled by
the emperor Theodosius the younger, A.D. 438. 1
B1.Comm. 81.
It was a collection of all the imperial constitutions then
in force. It was the only body of civil law publicly re-
ceived as authentic in the western part of Europe till the
twelfth century, the use and authority of the Code of Jus-
tinian being during that interval confined to the East. 1
Bl.Comm. 81.
CODEX VETUS. The old code. The first edition
of the Code of Justinian; now lost. Mackeld.
Rom.Law, § 70.
CODICIL. A supplement or an addition to a will';
it may explain, modify, add to, subtract from,
qualify, alter, restrain or revoke provisions in will.
In re Phelps' Will, 232 N.Y.S. 418, 421, 133 Misc.
450; Butler University v. Danner, 114 Ind.App.
236, 50 N.E.2d 928, 932; In re Cazaurang's Estate,
42 Cal.App.2d 796, 110 P.2d 138; Blackford v. An-
derson, 226 Iowa 1138, 286 N.W. 735, 743; Adams
v. Foley, 360 Ohio App. 295, 173 N.E. 197, 198.
Usually it does not supersede or totally revoke the will.
Holcomb v. Holcomb, 159 So. 564, 566, 173 Miss. 192; but is
part of the will, Knebelkamp v. Acosta, 114 S.W.2d 737, 739,
272 Ky. 506; Succession of Patterson, 188 La. 635, 177 So.
692, 694; Simmons v. Gunn, 156 Va. 305, 157 S.E. 573, 574 ;
and may confirm, reexecute, revive or republish the will,
Des Portes v. Des Portes, 157 S.C. 407, 154 S.E. 426, 429;
In re Warne's Estate, 302 Pa. 386, 153 A. 688, 690; United
States v. Moore, 197 Ark. 664, 124 S.W.2d 807, 809. It must
be executed with same solemnity as a will. Adams v.
Foley, 36 Ohio App. 295, 173 N.E. 197, 198.
CODICILLUS. In the Roman law. A codicil; an
informal and inferior kind of will, in use among
the Romans.
CODIFICATION. Process of collecting and ar-
ranging the laws of a country or state into a code,
i. e., into a complete system of positive law, scien-
tifically ordered, and promulgated by legislative
authority.
COEMPTIO. One of the modes in which marriage
was contracted among the Romans. Adams,
Rom.Ant. 501.
CO-EMPTION. The act of purchasing the whole
quantity of any commodity. Wharton.
CO-EQUAL. To be or become equal to; to have
the same quantity, the same value, the same de-
gree or rank, or the like, with; to be commensu-
rate with. State ex rel. Com'rs of Land Office v.
Board of Com'rs of Nowata County, 166 Okl. 78,
25 P.2d 1074, 1077.
COERCE. Compelled to compliance; constrained
to obedience, or submission in a vigorous or forci-
ble manner. Fluharty v. Fluharty, 8 W.W.Harr.
487, 193 A. 838, 840.
COERCION. Compulsion; constraint; compel-
ling by force or arms. Fluharty v. Fluharty, Del.
Super., 8 W.W.Harr. 487, 193 A. 838, 840; Santer
v. Santer, 115 Pa.Super. 7, 174 A. 651, 652.
It may be actual, direct, or positive, as where physical
force is used to compel act against one's will, or implied,
legal or constructive, as where one party is constrained by
subjugation to other to do what his free will would refuse.
Metro-Goldwyn-Mayer Distributing Corporation v. Cocke,
Tex.Civ.App., 56 S.W.2d 489; Fluharty v. Fluharty, 8 W.
W.Harr. 487, 193 A. 838, 840. It may be actual or threat-
ened exercise of power possessed, or supposedly possessed.
In re New York Title & Mortgage Co., 271 N.Y.S. 433, 150
Misc. 827; Weir v. McGrath, D.C.Ohio, 52 F.2d 201, 203.
As used in testamentary law, any pressure by which tes-
tator's action is restrained against his free will in the ex-
ecution of his testament. Max Ams Mach. Co. v. Inter-
national Ass'n of Machinists, Bridgeport Lodge, No. 30, 92
Conn. 297, 102 A. 706, 709; Hughes v. Leonard, 66 Colo.
500, 181 P. 200, 203, 5 A.L.R. 817.
Duress and coercion are not synonymous though their
meanings often shade into one another. McKenzie-Hague
Co. v. Carbide & Carbon Chemicals Corporation, C.C.A.
Minn., 73 F.2d 78, 85.
CO-EXECUTOR. One who is a joint executor
with one or more others. See, also, Joint Execu-
tors.
COFFEE-HOUSE.. A house of entertainment
where guests are supplied with coffee and other
refreshments, and sometimes with lodging. Cen-
tury Dict. A coffee-house is not an inn. Thomp-
son v. Lacy, 3 Barn. & Ald. 283; Corn. v. Woods,
4 Ky.Law Rep. 262; Potson v. City of Chicago,
304 222, 136 N.E. 594, 596.
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COGNOVIT
COFFERER OF THE QUEEN'S HOtSEHOLD,
In English law. A principal officer of the royal
establishment, next under the controller, who, in
the countinghouse and elsewhere, had a special
charge and oversight of the other officers, whose
wages he paid.
COGITATIONIS P(ENAM NEMO PATITUR. No
one is punished for his thoughts. Dig. 48, 19, 18.
COGNAC. A distilled brandy, containing more
than one-half of 1 per centum of alcohol. Benson
v. U. S., C.C.A.Tex., 10 F.2d 309, 310.
COGNATES. (Lat. cognati.) Relations by the
mother's side, or by females. Mackeld.Rom.Law,
§ 144. A common term in Scotch law. Ersk.Inst.
1, 7, 4.
COGNATI. Lat. In the civil law. Cognates; re-
lations by the mother's side. 2 Bl.Comm. 235.
Relations in the line of the mother. Hale, Corn.
Law, c. xi. Relations by or through females.
COGNATIO. Lat.
In the civil law. Cognation. Relationship, or
kindred generally. Dig. 38, 10, 4, 2; Inst. 3, 6,
pr.
Relationship through females, as distinguished from
agn-atio, or relationship through males. Agnatio a patre
sit, cognatio a matre. Inst. 3, 5, 4. See Agnatio.
In Canon law. Consanguinity, as distinguished
from affinity. 4 Reeve, Eng.Law, 56-58. Consan-
guinity, as including affinity. Id.
COGNATION. In the civil law. Signifies gen-
erally the kindred which exists between two per.
sons who are united by ties of blood or family, or
both.
Civil cognation is that which proceeds alone from the
ties of families, as the kindred between the adopted father
and the adopted child.
Mixed cognation is that which unites at the same time
the ties of blood and family, as that which exists between
brothers the issue of the same lawful marriage. Inst. 3.
6; Dig. 38. 10.
Natural cognation is that which is alone formed by ties
of blood; such is the kindred of those who owe their origin
to an illicit connection, either in relation to their ascend-
ants or collaterals.
COGNATUS. Lat. In the civil law. A relation by
the mother's side; a cognate.
A relation, or kinsman, generally.
COGNITIO.
In old English law. The acknowledgment of a
fine; the certificate of such acknowledgment.
In the Roman law. The judicial examination
or hearing of a cause.
COGNITIONES. Ensigns and arms, or a military
coat painted with arms. Mat.Par. 1250.
COGNITIONIBUS MITTENDIS. In English law.
A writ to a justice of the common pleas, or other,
who has power to take a fine, who, having taken
the fine, defers to certify it, commanding him to
certify it. Now abolished. Reg.Orig. 68.
COGNITIONIS CAUSIE. In Scotch practice. A
name given to a judgment or decree pronounced
by a court, ascertaining the amount of a debt
against the estate of a deceased landed proprietor,
on cause shown, or after a due investigation.
Bell.
COGNITOR. In the Roman law. An advocate or
defender in a private cause; one who defended
the cause of a person who was present. Calvin.
Lex.Jurid.
COGNIZABLE. Capable of being tried or exam-
ined before a designated tribunal, State v. Wilmot,
51 Idaho 233, 4 P.2d 363, 364; within jurisdiction of
court or power given to court to adjudicate contro-
versy. Samuel Goldwyn, Inc. v. United Artists
Corporation, C.C.A.Del., 113 F.2d 703, 707.
COGNIZANCE. Jurisdiction, or the exercise of
jurisdiction, or power to try and determine causes;
judicial examination of a matter, or power and
authority to make it. Clarion County v. Hospital,
111 Pa. 339, 3 A. 97.*
Judicial notice or knowledge; the judicial hear-
ing of a cause; acknowledgment; confession;
recognition.
Claim of cognizance or of conusance. See
Claim of Cognizance or of Conusance.
Judicial cognizance. See Judicial.
The term also applies to a power granted by the king to
a city or town to hold pleas within it. 11 East, 543; 1 W.
Bla. 454; 3 Bla.Com. 298. An acknowledgment by defend-
ant or deforciant in fine that the land belongs to, or is the
right of, the complainant, 12 Ad. & El. 259. An answer in
replevin, by which defendant acknowledges taking of the
goods and want of title, but justifies on ground that the
taking was by command of one entitled to the property.
Lawes, Pl. 35; 2 Bla.Com. 350. Inhabitants of Sturbridge
v. Winslow. 21 Pick., Mass., 87; Noble v. Holmes, 5 Hill,
N.Y., 194.
COGNIZEE. The party to whom a fine was levied.
2 Bl.Comm. 351.
COGNIZOR. In old conveyancing. The party
levying a fine. 2 Bl.Comm. 350, 351.
COGNOMEN.
In English law. A surname. A name added to
the nomen proper, or name of the individual; a
name descriptive of the family.
In Roman law. A man's family name.
The first name (prcenomen) was the proper name
of the individual; the second (nomen) indicated the gees
or tribe to which he belonged; while the third (cognomen)
denoted his family or house. The agnomen was added on
account of some particular event, as a further distinction.
Vicat. See Cas. temp. Hardw. 286; 6 Co. 65.
COGNOMEN MAJORUM EST EX SANGUINE
TRACTUM, HOC INTRINSECUM EST; AGNO-
MEN EXTRINSECUM AB EVENTU. 6 Coke, 65.
The cognomen is derived from the blood of an-
cestors, and is intrinsic; an agnomen arises from
an event, and is extrinsic.
COGNOVIT. Defendant has confessed judgment
and justice of claim, Dyer v. Johnson, Tex.Civ.
App., 19 S.W.2d 421, 422. Written authority of
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COGNOVIT
debtor and his direction for entry of judgment
against him. Blott v. Blott, 227 Iowa 1108, 290
N.W. 74, 76.
COGNOVIT ACTIONEM. (He has confessed the
action.) A. defendant's written confession of ac-
tion against him. It is usually upon 'condition;
is supposed to be given in court; and impliedly au-
thorizes plaintiff's attorney to sign judgment and
issue execution. Mallory v. Kirkpatrick, 54 N.J.
Eq. 50, 33 A. 205.
COHABIT or COHABITATION. Dwelling to-
gether. Hunt v. Hunt, 172 Miss. 732, 161 So. 119,
121, Johnson v. Commonwealth, 152 Va. 965, 146
S.E. 289, 291. Intercourse together as husband
and wife. State v. Hoffman, 68 N.D. 610, 282 N.W.
407, 409. Living, or abiding or residing together
as man and wife. Jones v. State, 182 Tenn.
60, 184 S.W.2d 167, 169; State v. Barlow, 107 Utah
292, 153 P.2d 647, 651; In re Miller's Estate, 182
Okl. 534, 78 P.2d 819, 827.
It may mean copulation or sexual intercourse, Bracks-
mayer v. Bracksmayer, Sup., 22 N.Y.S.2d 110, 112; as in
divorce statutes, Varnell v. Varnell, 182 S.W.2d 466, 467,
207 Ark. 711; De Berry v. De Berry, 115 W.Va. 604, 177 S.
E. 440, 441; or promiscuous and casual relations, as in
pandering statute, Boykin v. U. S., 130 F.2d 416, 421, 76
U.S.App.D.C. 147. But in some circumstances occasional
acts of sexual intercourse may be insufficient proof. Cutrer
v. State, 154 Miss. 80, 121 So. 106, 107.
COHABITING IN STATE OF ADULTERY OR
FORNICATION. Living together as husband and
wife. Martin v. State, 89 Ind.App. 107, 165 N.E.
763.
Proof must establish at least one act of sexual inter-
course, or facts from which such act may reasonably be in-
ferred. Warner v. State, 202 Ind. 479, 175 N.E. 661, 663,
74 A.L.R. 1357.
COHAEREDES UNA PERSONA CENSENTUR,
PROPTER UNITATEM JURIS QUOD HABENT,
Co.Litt. 163. Co-heirs are deemed as one person,
on account of the unity of right which they pos-
sess.
COHERES. Lat. In civil and old English law.
A co-heir, or joint heir.
COHAN RULE. Where part of expenditures by
taxpayers are of deductible nature as ordinary
and necessary business expense are unidentifiable,
50% of expenditures are allowed as deduction.
Poletti v. C. I. R., C.A.Mo., 351 F.2d 345, 349.
CO-HEIR. One of several to whom an inheritance
descends.
CO-HEIRESS. A joint heiress. A woman who
has an equal share of an inheritance with another
woman.
COHERER. In wireless telegraphy, the "detec-
tor" or "coherer" and "wave responsive device" is
a device by which the electromagnetic waves
cause the indicator to respond. National Electric
Signaling Co. v. Telefunken Wireless Telegraph
Co. of United States, C.C.A.N.Y., 221 F. 629, 631.
COHUAGIUM. A tribute made by those who meet
promiscuously in a market or fair. Du Cange.
COIF. A title given to serjeants at law, who are
called "serjeants of the coif," from the coif they
wear on their heads. The use of this coif at first
was to cover the clerical tonsure, many of the
practicing serjeants being clergymen who had
abandoned their profession. It was a thin linen
cover, gathered together in the form of a skull or
helmet; the material being afterwards changed
into white silk, and the form eventually into the
black patch at the top of the forensic wig, which
is now the , distinguishing mark of the degree of
serjeant at law. (Cowell; Foss, Judg.; 3 Steph.
Comm. 272, note.) Brown.
COIN, v. To fashion pieces of metal into a pre-
scribed shape, weight, and degree of fineness, and
stamp them with prescribed devices, by authority
of government, in order that they may circulate
as money, Legal Tender Cases, 12 Wall. 484, 20 L.
Ed. 287; Thayer v. Hedges, 22 Ind. 301; Hague v.
Powers, 39 Barb. (N.Y.) 466, or to invent words
or phrases.
COIN, n. Pieces of gold, silver, or other metal,
fashioned into a prescribed shape, weight, and de-
gree of fineness, and stamped, by authority of gov-
ernment, with certain marks and devices, and put
into circulation as money at a fixed value, Corn. v.
Gallagher, 16 Gray, Mass., 24p; Latham v. U. S.,
1 Ct.C1. 150; Borie v. Trott, 5 Phila., Pa., 403, or
any metal disc, State v. Kelleher, 127 A. 503, 504,
2 W.W.Harr., Del., 559.
Strictly speaking, coin differs from money, as the species
differs from the genus. Money is any matter, whether
metal, paper, beads, shells, etc., which has currency as a
medium in commerce. Coin is a particular species, always
made of metal, and struck according to a certain process
called "coinage." Wharton.
COINAGE. The process or the function of coining
metallic money; also the great mass of metallic
money in circulation. Meyer v. Roosevelt, 25 How.
Prac., N.Y., 105; U. S. v. Otey, C.C.Or., 31 F. 70.
COINSURANCE. A relative division of risk be-
tween the insurer and the insured, dependent upon
the relative amount of the policy and the actual
value of the property insured, and taking effect
only when the actual loss is partial and less than
the amount of the policy; the insurer being lia-
ble to the extent of the policy for a loss equal to
or in excess of that amount. Buse v. National
Ben Franklin Ins. Co. of Pittsburg, Pa., 160 N.Y.
S. 566, 568, 96 Misc. 229.
COITUS. Sexual intercourse; carnal copulation;
coition.
COJUDICES. Lat. In old English law. Associate
judges having equality of power with others.
COKE. Partially consumed bituminous coal, from
which the volatile constituents have been burned
away, or partly graphitized carbon, whose fiber
has been affected by escaping and burning gases,
so that it is lighter than coal, although its sub-
stance is hard and dense. Mitchell v. Connells-
ville Central Coke Co., C.C.A.Pa., 231 F. 131, 137;
Otto Coking Co. v. Koppers Co., C.C.A.Del., 258 F.
122, 131.
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COLLATERAL
COKE'S INSTITUTES. See Institutes.
COLD BLOOD. Used in common parlance to des-
ignate a willful, deliberate, and premeditated
homicide. Skeggs v. State, 24 Ala.App. 307, 135
So. 431, 432.
COLD WATER ORDEAL. The trial which was
anciently used for the common sort of people,
who, having a cord tied about them under their
arms, were cast into a river; if they sank to the
bottom until they were drawn up, which was in a
very short time, then were they held guiltless;
but such as did remain upon the water were held
culpable, being, as they said, of the water rejected
and kept up. Wharton.
COLIBERTUS. In feudal law. One who, holding
in free socage, was obliged to do certain services
for the lord. A middle class of tenants between
servile and free, who held their freedom of ten-
ure on condition of performing certain services.
Said to be the same as the conditionales. Cowell.
COLLAPSIBLE CORPORATION. In income tax
law, for purpose of determining whether gain
from the sale or exchange of stock is gain from
the sale or exchange of a capital asset or gain
from the sale or exchange of property which is
not a capital asset, a corporation formed or
availed of principally for the manufacture, con-
struction, or production of property, or for the
holding of stock in a corporation so formed or
availed of, with a view to the sale or exchange
of stock by its shareholders, or a distribution to
its shareholders, prior to the realization by such
corporation of a substantial part of the net in-
come to be derived from such property, and the
realization by such shareholders of gain attributa-
ble to such property. 26 U.S.C.A. § 117.
COLLATERAL. By the side; at the side; at-
tached upon the side. Not lineal, but upon a
parallel or diverging line. Additional or auxil-
iary; supplementary; co-operating; accompany-
ing as a secondary fact, or acting as a secondary
agent; related to, complementary; accompanying
as a co-ordinate, City Investment & Loan Co. v.
Wichita Hardware Co., Tex.Civ.App., 57 S.W.2d
222, 223; collateral security, Pepper v. Beville,
100 Fla. 97, 129 So. 334, 337.
As to collateral "Consanguinity," "Descent," "Es-
toppel," "Guaranty," "Issue," "Limitation," "Neg-
ligence," "Power," "Proceeding," and "Warranty,"
see those titles.
COLLATERAL ACT. In old practice. The name
"collateral act" was given to any act (except the
payment of money) for the performance of which
a bond, recognizance, etc., was given as security.
COLLATERAL ANCESTORS. A phrase some-
times used to designate uncles and aunts, and oth-
er collateral antecessors, who are not strictly an-
cestors. Banks v. Walker, 3 Barb.Ch. (N.Y.) 438,
446.
COLLATERAL ASSURANCE. That which is
made over and above the principal assurance or
deed itself.
COLLATERAL or INDIRECT ATTACK. On a
judicial proceeding, an attempt to avoid, defeat,
or evade it, or deny its force and effect, in some
incidental proceeding not provided by law for
the express purpose of attacking it. May v. Cas-
ker, 188 Okl. 448, 110 P.2d 287, 290. On a judg-
ment, any proceeding in which the integrity of a
judgment is challenged, except those made in the
action wherein the judgment is rendered or by ap-
peal. Edward Thompson Co. v. Thomas, 49 F.2d
500, 60 App.D.C. 118; In re Peterson's Estate, 12
Wash.2d 686, 123 P.2d 733, 751.
An attempt to impeach the judgment by matters dehors
the record in an action other than that in which it was
rendered ; an attempt to avoid, defeat, or evade it, or deny
its force and effect in some incidental proceeding not pro-
vided by law for the express purpose of attacking it; any
proceeding which is not instituted for the express purpose
of annulling, correcting, or modifying such decree, or an
objection, incidentally raised in the course of a proceeding,
which presents an issue collateral to the issues made by the
pleadings. Trustees of Somerset Academy v, Picher, C.C.A.
Me., 90 F.2d 741, 743.
COLLATERAL ESTOPPEL. The collateral de-
termination of a question by a court having gen-
eral jurisdiction Of the subject. Small v. Haskins,
26 Vt. 209.
Conclusiveness of judgment in prior action where subse-
quent action is upon a different cause of action. Babcock
v. Babcock, 63 Cal.App.2d 94, 146.P.2d 279, 281.
Where complaint in a divorce action alleged that there
was no community property, and divorce decree found that
all allegations of complaint were true and sustained by
evidence, the decree was a conclusive determination that
husband's insurance policies were not community property,
and under the doctrine of "collateral estoppel" divorced
wife was estopped from litigating that issue upon hus-
band's death. Maxwell v. Maxwell, 66 Cal.App.2d 549, 152
P.2d 530, 532.
COLLATERAL FACTS. Such as are outside the
controversy, or are not directly connected with the
principal matter or issue in dispute. Summerour
v. Felker, 102 Ga. 254, 29 S.E. 448; Garner v. State,
76 Miss. 515, 25 So. 363; Jones v. State, 70 Ga.App.
431, 28 S.E.2d 373, 386.
COLLATERAL FRAUD. See Fraud.
COLLATERAL IMPEACHMENT. See Collateral
Attack.
COLLATERAL INHERITANCE TAX. A tax
levied upon the collateral devolution of property
by will or under the intestate law. Perfection
Tire & Rubber Co. v. Kellogg-Mackay Equipment
Co., 194 Iowa 523, 187 N.W. 32, 33.
COLLATERAL KINSMEN. Those who descend
from one and the same common ancestor, but
not from one another.
COLLATERAL LINE. See Descent.
COLLATERAL PROMISE. A promise merely su-
per-added to the promise of another, he remaining
primarily liable. Fairbanks v. Barker, 115 Me. 11,
97 A. 3, 5; Miller v. Davis, 168 Ky. 661, 182 S.W.
839, 840.
COLLATERAL SECURITY. A security given in
addition to the direct security, and subordinate to
it, intended to guaranty its validity or convertibili-
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ty or insure its performance; so that, if the direct
security fails, the creditor may fall back upon the
collateral security. Butler v. Rockwell, 23 P. 462,
14 Colo. 125; McCormick v. Bank, C.C.Ind., 57 F.
110; Perfection Tire & Rubber Co. v. Kellogg-
Mackay Equipment Co.,_194 Iowa 523, 187 N.W.
32, 33; Barbin v. Moore, 85 N.H. 362, 159 A. 409,
415, 83 A.L.R. 62.
Collateral security, in bank phraseology, means some se-
curity additional to the personal obligation of the borrow-
er. Shoemaker v. Bank, 2 Abb., U.S., 423, Fed.Cas.No.12,-
801, or pledge of negotiable paper, shares of corporate
stock, and the like. Turner v. Commercial Savings Bank,
17 Ga.App. 631, 87 S.E. 918; A. H. Averill Machinery Co.
v. Bain, 50 Mont. 512,-148 P. 334.
COLLATERAL UNDERTAKING. "Collateral" and
"original" have become the technical terms where-
by to distinguish promises that are within, and
such as are not within, the statute of frauds. El-
der v. Warfield, 7 Har. & J., Md., 391; Turner v.
Commercial Savings Bank, 17 Ga.App. 631, 87 S.
E. 918.
COLLATERAL'S ET SOCH. The ancient title of
masters in chancery.
COLLATIO BONORUM. Lat. In the civil law.
The obligation on successors to an inheritance to
return to the common inheritance gifts received
from the ancestor during his lifetime. In re
Farmers' Loan & Trust Co., 163 N.Y.S. 961, 967, 99
Misc. 420; In re Farmers' Loan & Trust Co., 168
N.Y.S. 952, 956, 181 App.Div. 642. A joining to-
gether or contribution of goods into a common
fund.
This occurs where a portion of money, advanced by the
father to a son or daughter, is brought into hotchpot, in or-
der to have an equal distributory share of his personal es-
tate at his death. See Collation.
COLLATIO SIGNORUM. In old English law. A
comparison of marks or seals. A mode of testing
the genuineness of a seal, by comparing it with
another known to be genuine. Adams. See Bract.
fol. 389b.
COLLATION. It is the bringing into the estate
of an intestate an estimate of the value of ad-
vancements made by the intestate to his or her
children in order that the whole may be divided in
accordance with the statute of descents. In re
Howlett's Estate, 275 Mich. 596, 267 N.W. 743, 744.
It is synonymous with "hotchpot." Moore v.
Freeman, 50 Ohio St. 592, 35 N.E. 502.
Civil Law
The collation of goods is the supposed or real
return to the mass of the succession which an
heir makes of property which he received in ad-
vance of his share or otherwise, in order that such
property may be divided together with the other
effects of the succession. Civ.Code La. art. 1227;
Miller v. Miller, 105 La. 257, 29 So. 802; Succession
of Thompson, 9 La.Ann. 96.
The fundamental basis of doctrine is legal presumption
that ancestor intended absolute equality among his de-
scendants in final distribution of his property, that dona-
tion by him during his lifetime to any one of them was
merely advancement d'hoirie or advance on donee's heredi-
tary share to establish him in life or for some other use-
ful purpose, and that ancestor Intended to reestablish
equality among his descendants in final partition of his
estate. Le Blanc v. Volker, La.App., 198 So. 398, 401.
Ecclesiastical Law
The act by which the bishop who has the be-
stowing of a benefice gives it to an incumbent. 2
Bla.Com. 22.
Practice
The comparison of a copy with its original to
ascertain its correctness; or the report of the offi-
cer who made the comparison.
COLLATION OF SEALS. When upon the same
label one seal was set on the back or reverse of
the other. Wharton.
COLLATION TO A BENEFICE. In ecclesiastical
law. This occurs where the bishop and patron are
one and the same person, in which case the bishop
cannot present the clergyman to himself, but does,
by the one act of collation or conferring the bene-
fice, the whole that is done in common cases both
by presentation and institution. 2 Bl.Comm. 22.
COLLATIONE FACTA UNI POST MORTEM AL-
TERIUS. A writ directed to justices of the com-
mon pleas, commanding them to issue their writ
to the bishop, for the admission of a clerk in the
place of another presented by the crown, where
there had been a demise of the crown during a
suit; for judgment once passed for the king's
clerk, and he dying before admittance, the king
may bestow his presentation on another. Reg.
Orig. 31.
COLLATIONE HEREMITAGH. In old English
law. A writ whereby the king conferred the keep-
ing of an hermitage upon a clerk. Reg.Orig.
303, 308.
COLLECT. To gather together; to bring scat-
tered things (assets, accounts, articles of prop-
erty) into one mass or fund; to assemble.
To collect a debt or claim is to obtain payment
or liquidation of it, either by personal solicitation
or legal proceedings. Isler v. National Park Bank
of New York, 239 N.Y. 462, 147 N.E. 66, 68.
COLLECT ON DELIVERY. See C. 0. D.
COLLECTIBLE. Debts, obligations, demands, lia-
bilities that one may be made to pay by means of
legal process. Shanahan v. State, 142 Md. 616,
121 A. 636, 640.
COLLECTION AGENCY. A concern which col-
lects all kinds of claims for others. McCarthy v.
Hughes, 36 R.I. 66, 88 A. 984, 985, Ann.Cas.1915D,
26.
COLLECTION OF ILLEGAL FEES. Collection
by public official of fees in excess of those fixed
by law for certain services. Parker v. Morgan,
48 Utah 405, 160 P. 764, 765.
COLLECTIVE BARGAINING. As contemplated
by National Labor Relations Act is a procedure
looking toward making of collective agreements
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between employer arid accredited representatives
of employees concerning wages, hours, and other
conditions of employment, and requires that par-
ties deal with each other with open and fair minds
and sincerely endeavor to overcome obstacles exist-
ing between them to the end that employment re-
lations may be stabilized and obstruction to free
flow of commerce prevented. National Labor Re-
lations Act § 8(5), 29 U.S.C.A. § 158(5). Rapid
Roller Co. v. National Labor Relations Board,
C.C.A.7, 126 F.2d 452, 460.
The essence of "collective bargaining" is the freedom of
choice of employees in selection of their bargaining rep-
resentative. National Labor Relations Act § 1 et seq., 29
U.S.C.A. § 151 et seq. National Labor Relations Board v.
American Rolling Mill Co., C.C.A.6, 126 F.2d 38, 41.
"Collective bargaining," within provision of National
Labor Relations Act providing that a refusal to bargain
collectively should be an unfair labor practice, does not
require employer to reach an agreement, but does require
sincere negotiations with representatives of employees.
National Labor Relations Act § 8(5), 29 U.S.C.A. § 158(5).
National Labor Relations Board v. Biles Coleman Lumber
Co., C.C.A.9, 98 F.2d 18, 22.
COLLECTIVE BARGAINING AGREEMENT.
Agreement between an employer and a labor union
which regulates terms and conditions of employ-
ment. Railway Mail Ass'n v. Murphy, 44 N.Y.S.
2d 601, 605, 608, 180 Misc. 868; McNeil v. Peoples
Life Ins. Co., D.C.Mun.App., 43 A.2d 293, 294.
See, also, "Collective Labor Agreement" and
"Trade Agreement."
COLLECTIVE LABOR AGREEMENT. Also called
"trade agreement". Bargaining agreement as to
wages and conditions of work entered into by
groups of employees, usually organized into a
brotherhood or union on one side and groups of
employers or corporations on the other side. Bris-
bin v. E. L. Oliver Lodge No. 335 of Brotherhood
of Railway Clerks, 134 Neb. 517, 279 N.W. 277, 283;
Rentschler v. Missouri Pac. R. Co., 126 Neb. 493,
253 N.W. 694, 696, 95 A.L.R. 1.
It becomes a binding contract when it is adopted into
and made a part of the individual contract of each em-
ployee, and a breach of its terms will give rise to a cause
of action by either party.
COLLECTOR. One appointed to receive taxes or
other impositions: as, collector of taxes, collector
of rhilitia fines, etc. A person appointed by a pri-
vate person to collect the credits due him.
COLLECTOR OF DECEDENT'S ESTATE. A per-
son temporarily appointed by the probate court
to collect rents, assets, interest, bills receivable,
etc., of a decedent's estate, and act for the estate
in all financial matters requiring immediate set-
tlement. Such collector is usually appointed when
there is protracted litigation as to the probate of
the will, or as to the person to take out adminis-
tration, and his duties cease as soon as an execu-
tor or administrator is qualified.
COLLECTOR OF THE CUSTOMS. An officer of
the United States, appointed for the term of four
years. Act May 15, 1820, § 1; 3 Story, U.S.Laws,
1790 (19 U.S.C.A. § 5). Rev.Stat.U.S. § 2613 (19
U.S.C.A. § 5). His general duties are defined in
§ 2621 (19 U.S.C.A. § 33).
COLLECTION. Indorsement "for collection." See
For Collection.
COLLEGA. In the civil law. One invested with
joint authority. A colleague; an associate.
COLLEGATARIUS. Lat. In the civil law. A co-
legatee. Inst. 2, 20, 8.
COLLEGATARY. A co-legatee; a person who has
a legacy left to him in common with other per-
sons.
COLLEGE. An organized assembly or collection
of persons, established by law, and empowered to
co-operate for the performance of some special
function or for the promotion of some common ob-
ject, which may be educational, political, ecclesias-
tical, or scientific in its character.
The assemblage of the cardinals at Rome is
called a "college." So, in the United States, the
body of presidential electors is called the "elec-
toral college."
In the most common use of the word, it desig-
nates an institution of learning (usually incorpo-
rated) which offers instruction in the liberal arts
and humanities and in scientific branches, but not
in the technical arts or those studies preparatory
to admission to the professions. Corn. v. Banks,
198 Pa. 397, 48 A. 277; Chegaray v. New York, 13
N.Y. 229. Also applied to all kinds of institutions
from universities, or departments thereof to "bus-
iness colleges," "barber colleges," etc. State v.
Erickson, 75 Mont. 429, 244 P. 287, 291.
In England, it is a civil corporation, company
or society of men, having certain privileges, and
endowed with certain revenues, founded by royal
license. An assemblage of several of these col-
leges is called a "university." Wharton.
COLLEGIA. In the civil law. The guild of a
trade.
COLLEGIALITER. In a corporate capacity. 2
Kent, Comm. 296.
COLLEGIATE CHURCH. In English ecclesiasti-
cal law. A church built and endowed for a socie-
ty or body corporate of a dean or other president,
and secular priests, as canons or prebendaries
in the said church; such as the churches of West-
minster, Windsor, and others. Cowell.
COLLEGIUM. Lat. In the civil law. A word
having various meanings ; e. g., an assembly, so-
ciety, or company; a body of bishops; an army;
a class of men. But the principal idea of the
word was that of an association of individuals of
the same rank and station, or united for the pur-
suit of some business or enterprise. Sometimes, a
corporation, as in the maxim "tres faciunt col-
legium" (1 Bl.Comm. 469), though the more usual
and proper designation of a corporation was "uni-
versitas."
COLLEGIUM AMMIRALITATIS. The college or
society of the admiralty.
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COLLEGIUM
COLLEGIUM EST SOCIETAS PLURIUM COR-
PORUM SIMUL HABITANTIUM. Jenk.Cent. 229.
A college is a society of several persons dwelling
together.
COLLEGIUM ILLICITUM. One which abused its
right, or assembled for any other purpose than
that expressed in its charter.
COLLEGIUM - LICITUM. An assemblage or so-
ciety of men united for some useful purpose or
business, with power to act like a single individual.
2 Kent, Comm. 269.
COLLIDE. To strike or dash against; to come
into collision; to clash. Collins v. Leahy, Mo.
App., 102 S.W.2d 801, 809.
COLLIERY. This term is sufficiently wide to in-
clude all contiguous and connected veins and
seams of coal which are worked as one concern,
without regard to the closes or pieces of ground
under which they are carried, and apparently also
the engines and machinery in such contiguous and
connected veins. MacSwin. Mines, 25. Carey v.
Bright, 58 Pa. 85.
It includes every operation and work, both under and
above ground, used or to be used to mine and prepare coal.
Moore v. Stevens Coal Co., 315 Pa. 564, 173 A. 661, 662.
COLLIGENDUM BONA DEFUNCTI. See Ad
Colligendum, etc.
COLLISION. Striking together of two objects,
-one of which may be stationary. Davilla v. Lib-
erty Life Ins. Co., 114 Cal.App. 308, 299 P. 831,
834. Act or instance of colliding; state of having
collided. Guenther v. American Indem. Co., 246
Wis. 478, 17 N.W.2d 570, 571.
Maritime Law
The act of ships or vessels striking together.
In its strict sense, collision means the impact of two
vessels both moving, and is distinguished from allision,
which designates the striking of a moving vessel against
one that is stationary. But collision is used in a broad
sense, to include allision, and perhaps other species of
encounters between vessels, or a vessel and other floating,
though non-navigable, objects. Wright v. Brown, 4 Ind.
97, 58 Am.Dec. 622; London Assur. Co. v. Companhia De
Moagens, 68 F. 258, 15 C.C.A. 379; Lehigh & Wilkes-Barre
Coal Co. v. Globe & Rutgers Fire Ins. Co., C.C.A.N.Y., 6
F.2d 736, 738, 43 A.L.R. 215.
The term is not inapplicable to cases where a stationary
vessel is struck by one under way, strictly termed "alli-
sion" ; or where one vessel is brought into contact with
another by swinging at anchor. And even an injury
received by a vessel at her moorings, in consequence of
being violently rubbed or pressed against by a second ves-
sel lying alongside of her, in consequence of a collision
against such second vessel by a third one under way, may
be compensated for, under the general head of "collision,"
as well as an injury which is the direct result of a "blow,"
properly so called. The Money, Abb.Adm. 73, Fed.Cas.No.
9,894.
Automobile Insurance Law
The term denotes the act of colliding; striking
together; violent contact. Long v. Royal ins.
Co., 180 Wash. 360, 40 P.2d 132, 133, 105 A.L.R.
1423. The term implies an impact or sudden con-
tact of a moving body with an obstruction in its
line of motion, whether both bodies are in motion
or one stationary and the other, no matter which,
in motion. St. Paul Fire & Marine Ins. Co. v.
American Compounding Co., 211 Ala. 593, 100 So.
904, 906, 35 A.L.R. 1018; Rea v. Motors Ins. Cor-
poration, 48 N.M. 9, 144 P.2d 676, 678, 679, 681.
But liability depends on what the automobile collides
with and, of course, the cause of the collision and the
terms of the policy. Liability has been sustained where
collision was with embankment, Pred v. Employers' Indem-
nity Corporation, 112 Neb. 161, 198 N.W. 864, 866, 35
A.L.R. 1003; and also denied, Fox v. Interstate Exch., 182
Wis. 28, 195 N.W. 842. Liability has also been denied
where collision was with earth, after automobile had gone
over an embankment, Continental Casualty Co. v. Paul.
209 Ala. 166, 95 So. 814, 815, 30 A.L.R. 802 (contra Polstein
v. Pacific Fire Ins. Co., 203 N.Y.S. 362, 122 Misc. 194) ;
and with stump after skidding off the road, Ploe v. Inter-
national Indemnity Co., 128 Wash. 480, 223 P. 327, 328, 35
A.L.R. 999. Liability has been sustained for damages
caused by collision with sides of rut, Wood v. Southern
Casualty Co., Tex.Civ.App., 270 S.W. 1055, 1057; and both
sustained and denied where body or frame of automobile
collided with the road through the breaking of an axle or
other cause, Young v. New Jersey Ins. Co., D.C.Mont., 284
F. 492, 493 ; Great American Mut. Indemnity Co. v. Jones.
111 Ohio St. 84, 144 N.E. 596, 35 A.L.R. 1023; Great East-
ern Casualty Co. v. Solinsky, 150 Tenn. 206, 263 S.W. 71,
74, 35 A.L.R. 1007. Liability has been sustained where
elevator containing automobile fell, Freiberger v. Globe
Indemnity Co., 199 N.Y.S. 310, 311, 205 App.Div. 116;
National Fire Ins. 'Co. of Hartford, Conn., v. Elliott, C.C.A.
Mo., 7 F.2d 522, 527, 42 A.L.R. 1121 ; where standing car
ran over precipice, St. Paul Fire & Marine Ins. Co. v.
American Compounding Co., 211 Ala. 593, 100 So. 904,
906, 35 A.L.R. 1018; where scoop of steamshovel loading
autotruck fell on latter, Universal Service Co. v. American
Ins. Co., 213 Mich. 523, 181 N.W. 1007, 14 A.L.R. 183; but
denied where second floor of garage fell upon automobile,
O'Leary v. St. Paul Fire & Marine Ins. Co., Tex.Civ.App.,
196 S.W. 575. This subject is fully discussed in Blashfield,
Cyc. of Automobile Law and Prac., Perm.Ed., §§ 3691-3698.
COLLISION CLAUSE. An additional provision
for insurance, on the margin of the policy, cover-
ing the contingency of a collision of the insured
vessel with another vessel and the liability of the
insured for the injury to such other vessel. Fire-
man's Fund Ins. Co. v. Globe Na y . Co., C.C.A.
Wash., 236 F. 618, 631. Also known as "running
down" clause.
COLLISTRIGIUM. The pillory.
COLLOBIUM. A hood or covering for the shoul-
ders, formerly worn by serjeants at law.
COLLOCATION. In French law. The arrange-
ment or marshaling of the creditors of an estate
in the order in which they are to be paid accord-
ing to law. Merl. Repert.
COLLOQUIUM. One of the usual parts of the
declaration in an action for slander. It is a gen-
eral averment that the words complained of were
spoken "of and concerning the plaintiff," or con-
cerning the extrinsic matters alleged in the in-
ducement, and its office is to connect the whole
publication with the previous statement. Van
Vechten v. Hopkins, 5 Johns., N.Y., 220, 4 Am.Dec.
339; Lukehart v. Byerly, 53 Pa. 421; Express Pub.
Co. v. Wilkins, Tex.Civ.App., 218 S.W. 614, 616;
Kee v. Armstrong, Byrd & Co., 75 Okl. 84, 182 P.
494, 498, 5 A.L.R. 1349.
An averment that the words in question are spoken of
or concerning some usage, report, or fact which gives to
words otherwise indifferent the peculiar defamatory mean-
ing assigned to them. Carter v. Andrews, 16 Pick.,
Mass., 6; Moore v. Leverett, Tex.Civ.App., 33 S.W.2d 838,
842.
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COLOR
COLLUSION. Is an agreement between two or
more persons to defraud a person of his rights by
the forms of law, or to obtain an object forbidden
by law. It implies the existence of fraud of some
kind, the employment of fraudulent means, or of
lawful means for the accomplishment of an unlaw-
ful purpose. May Hosiery Mills v. United States
District Court in and for Dist. of Montana, C.C.A.
Mont., 64 F.2d 450, 454.
A secret combination, conspiracy, or concert of action
between two or more persons for fraudulent or deceitful
purpose. W. E. Bowen Improvement Co. v. Van Half ten,
209 Mo.App. 629, 238 S.W. 147, 149; Daly v. Haight, 156
N.Y.S. 538, 541, 170 App.Div. 469.
A secret arrangement between two or more persons,
whose interests are apparently conflicting, to make use of
the forms and proceedings of law in order to defraud a
third person, or to obtain that which justice would not
give them, by deceiving a court or its officers. Railroad
Co. v. Gay, 86 Tex. 571, 26 S. W. 599, 25 L.R.A. 52 ; Balch
v. Beach, 119 Wis. 77, 95 N.W. 132. A secret agreement
between two persons that one should institute a suit
against the other, in order to obtain the decision of a
judicial tribunal for some sinister purpose. In re Insull
Utility Investments, D.C.I11., 6 F.Supp. 653, 655.
In divorce proceedings, collusion is an agreement
between husband and wife that one of them shall commit,
or appear to have committed, or be represented in court
as having committed, acts constituting a cause of divorce,
for the purpose of enabling the other to obtain a divorce.
But it also means connivance or conspiracy in initiating or
prosecuting the suit, as where there is a compact for
mutual aid in carrying it through to a decree. Beard v.
Beard, 65 Cal. 354, 4 P. 229; Pohlman v. Pohlman, 60
N.J.Eq. 28, 46 A. 658; McCauley v. McCauley, 88 N.J.Eq.
392, 103 A. 20, 23. Rosenzweig v. Rosenzweig, 246 N.Y.S.
231, 233, 231 App.Div. 13.
COLLUSIVE ACTION. An action not founded
upon an actual controversy between the parties to
it, but brought for purpose of securing a deter-
mination of a point of law for the gratification
of curiosity or to settle rights of third persons
not parties. It will not be entertained. City and
County of San Francisco v. Boyd, 22 Ca1.2d 685,
140 P.2d 666, 669, 670.
COLLYBISTA. In the civil law. A money-chang-
er; a dealer in money.
COLLYBUM. In the civil law. Exchange.
COLNE. In Saxon and old English law. An ac-
count or calculation.
COLONUS. In old European law. A husband-
man; an inferior tenant employed in cultivating
the lord's land. A term of Roman origin, cor-
responding with the Saxon ceorl. 1 Spence, Ch.
51.
COLONY. A dependent political community, con-
sisting of a number of citizens of the same country
who have emigrated therefrom to people another,
and remain subject to the mother-country. U. S.
v. The Nancy, 3 Wash.C.C. 287, Fed.Cas.No.15,854.
A settlement in a foreign country possessed
and cultivated, either wholly or partially, by im-
migrants and their descendants, who have a politi-
cal connection with and subordination to the moth-
er-country, whence they emigrated. In other
words, it is a place peopled from some more an-
cient city or country. Wharton.
Colonial Office
In the English government, this is the depart-
ment of state through which the sovereign ap-
points colonial governors, etc., and communicates
with them. Until the year 1854, the secretary for
the colonies was also secretary for war.
Colonial Laws
In America, this term designates the body of
law in force in the thirteen original colonies be-
fore the Declaration of Independence. In Eng-
land, the term signifies the laws enacted by Cana-
da and the other present British colonies.
COLOR. An appearance, semblance, or simula-
crum, as distinguished from that which is real.
A prima facie or apparent right. Hence, a de-
ceptive appearance; a plausible, assumed exterior,
concealing a lack of reality; a disguise or pre-
text. Railroad Co. v. Allfree, 64 Iowa 500, 20 N.W.
779; Broughton v. Haywood, 61 N.C. 383; Wilt v.
Bueter, 186 Ind. 98, 111 N.E. 926, 929.
In pleading. Ground of action admitted to sub-
sist in the opposite party by the pleading of one of
the parties to an action, which is so set out as to
be apparently valid, but which is in reality legally
insufficient.
A term of the ancient rhetoricians, and early adopted
into the language of pleading. It was an apparent or prima
facie right; and the meaning of the rule that pleadings in
confession and avoidance should give color was that they
should confess the matter adversely alleged, to such an
extent, at least, as to admit some apparent right in the
opposite party, which required to be encountered and
avoided by the allegation of new matter. Color was either
express, i. e., inserted in the pleading, or implied, which
was naturally inherent in the structure of the pleading.
Steph.P1. 233; Merten v. Bank, 5 Okl. 585, 49 P. 913.
Wheeler v. Nickels, 168 Or. 604, 126 P.2d 32, 36.
The word also means the dark color of the skin
showing the presence of negro blood; and hence
it is equivalent to African descent or parentage.
Johnson v. Board of Education of Wilson County,
166 N.C. 468, 82 S.E. 832, 834, L.R.A.1915A, 828.
COLOR OF AUTHORITY. That semblance or pre-
sumption of authority sustaining the acts of a pub-
lic officer which is derived from his apparent title
to the office or from a writ or other process in his
hands apparently valid and regular. State v.
Oates, 86 Wis. 634, 57 N.W. 296, 39 Am.St.Rep. 912.
COLOR OF LAW. The appearance or semblance,
without the substance, of legal right. State v.
Brechler, 185 Wis. 599, 202 N.W. 144, 148.
COLOR OF OFFICE. An act unjustly done by
the countenance of an office, being grounded upon
corruption, to which the , office is as a shadow and
color. Plow. 64. Day v. National Bond & Invest-
ment Co., Mo.App., 99 S.W.2d 117, 119.
A claim or assumption of right to do an act by
virtue of an office, made by a person who is legally
destitute of any such right. Feller v. Gates, 40 Or.
543, 67 P. 416, 56 L.R.A. 630, 91 Am.St.Rep. 492;
Citizens' Bank of Colquitt v. American Surety
Co. of New York, 174 Ga. 852, 164 S.E. 817; Pon-
tiac Trust Co. v. Newell, 266 Mich. 490, 254 N.W.
178, 181.
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COLOR
Such person must be at least officer de factor. Burrall
v. Acker, 23 Wend., N.Y., 606, 35 Am.Dec. 582; Day v.
National Bond & Investment Co., Mo.App., 99 S.W.2d 117,
119. See, also, Colore Officii.
COLOR OF TITLE. The appearance, semblance,
or simulacrum of title. Also termed "apparent
title." Any fact, extraneous to the act or mere
will of the claimant, which has the appearance, on
its face, of supporting his claim of a present title
to land, but which, for some defect, in reality falls
short of establishing it. Howth v. Farrar, C.C.A.
Tex., 94 F.2d 654, 658; Saltmarsh v. Crommelin,
24 Ala. 352.
, Anything in writing purporting to convey title to the
land, which defines the extent of the claim, it being imma-
terial how defective or imperfect the writing may be, so
that it is a sign, semblance, or color of title. Theisen v.
Qualley, 42 S.D. 367, 175 N.W. 556, 557. A title that is
imperfect, but not so obviously so that it would be appar-
ent to one not skilled in the law. Ipock v. Gaskins, 161
N.C. 673, 77 S.E. 843, 847.
A writing upon its face professing to pass title but which
does not, either through want of title in the grantor or a
defective mode of conveyance. Philbin v. Carr, 75 Ind.App.
560, 129 N.E. 19, 24; Glass v. Lynchburg Shoe Co., 212 N.C.
70, 192 S.E. 899.
That which the law considers prima facie a good title,
but which, by reason of some defect, not appearing on its
face, does not in fact amount to title. An absolute nullity,
as a void deed, judgment, etc., will not constitute color of
title. Causey v. White, 143 Ga. 7, 84 S.E. 58; Stearns Coal
& Lumber Co. v. Boyatt, 168 Ky. 111, 181 S. W. 962, 964.
That which is title in appearance but not in reality. Ffts-
chen Bros. Commercial Co. v. Noyes' Estate, 76 Mont. 175,
246 P. 773, 779; Boland v. Heck, 179 Okl. 403, 65 P.2d 1213,
1215.
"Any instrument having a grantor and grantee, and con-
taining a description of the lands intended to be conveyed,
and apt words for their conveyance, gives color of title to
the lands described. Such an instrument purports to be a
conveyance of the title, and because it does not, for some
reason, have that effect, it passes only color or the sem-
blance of a title." Brooks v. Bruyn, 35 Ill. 392.
"Color of title" is not synonymous with "claim of title."
To constitute "color of title" there must be a paper title
to give color to the adverse possession, whereas, a "claim
of title" may be shown wholly by parol. Walton v. Sikes,
165 Ga. 422, 141 S.E. 188, 190.
COLORABLE. That which has or gives color.
That which is in appearance only, and not in reali-
ty, what it purports to be. Counterfeit, feigned,
having the appearance of truth. Ellis v. Jones, 73
Colo. 516, 216 P. 257, 258.
COLORABLE ALTERATION. One which makes
no real or substantial change, but is introduced
only as a subterfuge or means of evading the pat-
ent or copyright law.
COLORABLE CAUSE OR INVOCATION OF JU-
RISDICTION. With reference to actions for ma-
licious prosecution, a "colorable cause or invoca-
tion of jurisdiction" means that a person, appar-
ently qualified, has appeared before a justice and
made a complaint under oath and in writing, stat-
ing some facts which in connection with other
facts constitute a criminal offense or bear a simili-
tude thereto. Hotel Supply Co. v. Reid, 16 Ala.
App. 563, 80 So. 137, 138.
COLORABLE CLAIM. In bankruptcy law, a claim
made by one holding the property as an agent or
bailee of the bankrupt; a claim in which as a mat-
ter of law, there Is no adverseness. In re if tim,
C.C.A.Wis., 202 F. 883, 884; In re Western Rope
& Mfg. Co., C.C.A.Okl., 298 F. 926, 927.
COLORABLE IMITATION. In the law of trade-
marks, this phrase denotes such a close or in-
genious imitation as to be calculated to deceive or-
dinary persons.
COLORABLE PLEADING. The practice of giving
color in pleading.
COLORABLE TRANSACTION. One presenting
an appearance which does not correspond with
the reality, and, ordinarily, an appearance intend-
ed to conceal or to deceive. Osborn v. Osborn, 102
Kan. 890, 172 P. 23, 24.
COLORE OFFICII. Lat. By color of office. Of-
ficer's acts unauthorized by officer's position,
though done in form that purports that acts
are done by reason of official duty and by virtue
of office. Richards v. American Surety Co. of
New York, 48 Ga.App. 102, 171 S.E. 924. See,
also, Color of Office.
COLORED. By common usage in America, this
term, in such phrases as "colored persons," "the
colored race," "colored men," and the like, is used
to designate negroes or persons of the African
race, including all persons of mixed blood descend-
ed from negro ancestry. Collins v. Oklahoma
State Hospital, 76 Okl. 229, 184 P. 946, 949, 7 A.L.R.
895; Theophanis v. Theophanis, 244 Ky. 689, 51
S.W.2d 957.
But where a state Constitution provided for separate
schools for the white and colored races, the term "white
race" was held to be limited to the Caucasian race, and the
term "colored races" to embrace all other races. Rice v.
Gong Lum, 139 Miss. 760, 104 So. 105, 107.
It has also been held that there is no legal technical
signification to the phrase "colored person" which the
courts are bound judicially to know. Pauska v. Daus, 31
Tex. 74.
COLPICES. Young poles, which, being cut down,
are made levers or lifters. Blount.
COLPINDACII. In old Scotch law. A young
beast or cow, of the age of one or two years; in
later times called a "cowdasfi."
COLT. An animal of the horse species, whether
male or female, not more than four years old.
Russ. & R. 416; Mallory v. Berry, 16 Kan. 295;
Pullen v. State, 11 Tex.App. 91.
COM. An abbreviation for "company," exactly
equivalent to "Co." Keith v. Sturges, 51 Ill. 142.
COMBARONES. In old English law. Fellow-
barons; fellow-citizens ;—the citizens or freemen
of the Cinque Ports being anciently called "bar-
ons;" the term "combarones" is used in this sense
in a grant of Henry III. to the barons of the port
of Fevresham. Cowell.
COMBAT. A forcible encounter between two or
more persons; a battle; a duel. Trial by battle.
Mutual Combat
One into which both the parties enter willingly
or voluntarily; it implies a common intent to
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COMITATUS
fight, but not necessarily an exchange of blows.
Aldridge v. State, 59 Miss. 250; Tate v. State, 46
Ga. 158; State v. Moss, 24 N.M. 59, 172 P. 199;
Findley v. State, 125 Ga. 583, 54 S.E. 106.
COMBATERRIE. A valley or piece of low ground
between two hills. Kennett, Gloss.
COMBE. A small or narrow valley.
COMBINATION. A conspiracy, or confederation
of men for unlawful or violent deeds. See Deu-
pree v. Thornton, 97 Neb. 812, 151 N.W. 305, 307,
L.R.A.1917C, 65.
In patent law. A union of different elements.
A patent may be taken out for a new combina-
tion of existing machines. Stevenson Co. v. Mc-
Fassell, C.C.A.Pa., 90 F. 707, 33 C.C.A. 249; Moore
v. Schaw, C.C.Cal., 118 F. 602; Moody v. Fiske, 2
Mas. 112, Fed.Cas.No.9,745.
In patent law. A composition of old or new
elements, and it is patentable, if it produces new
and useful results, though all its constituents were
well known and in common use before it was
made, provided the results are a product of the
combination, and not a mere aggregate of several
results. U. S. Industrial Chemical Co. v. Theroz
Co., C.C.A.Md., 25 F.2d 387, 391.
The distinction between a "combination" and an "aggre-
gation" lies in the presence or absence of mutuality of
action; a "combination" essentially requiring that there
be some joint operation performed by its elements, pro-
ducing a result due to their joint and cooperating action,
while in an "aggregation" there is a mere adding together
of separate contributions, each operating independently
of the other. Ball v. Coker, C.C.A.S.C., 210 F. 278, 282;
Mead Morrision Mfg. Co. v. Exeter Mach. Works, D.C.Pa.,
215 F. 731.
COMBINATION IN RESTRAINT OF TRADE. A
trust, pool, or other association of two' or more
individuals or corporations having for its object to
monopolize the manufacture or traffic in a partic-
ular commodity, to regulate or control the output,
restrict the sale, establish and maintain the price,
stifle or exclude competition, or otherwise to in-
terfere with the normal course of trade under
conditions of free competition. Northern Securi-
ties Co. v. U. S., 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed.
679; U. S. v. Knight Co., 156 U.S. 1, 15 S.Ct. 249,
39 L.Ed. 325.
COMBINED CARBON. As used in the metallurgy
of iron and steel, carbon in union with some one or
more metallic constituents in the iron alloy. Pitts-
burgh Iron & Steel Foundries Co. v. Seaman-Sleeth
Co., C.C.A.Pa., 248 F. 705, 707.
COMBING WOOL. A long-stapled wool, usually
combed, employed in the manufacture of worsteds.
Stone & Downer Co. v. U. S., 12 Ct.Cust.App. 62,
63; U. S. v. Stone & Downer Co., 12 Ct.Cust.App.
557. See Clothing Wool.
COMBUSTIBLE. Capable of undergoing combus-
tion; apt to catch fire; inflammable. Hebrlee v.
Hawley, 112 Kan. 398, 211 P. 129, 131.
COMBUSTIO. Burning. In old English law. The
punishment inflicted upon apostates.
COMBUSTIO DOMORUM. Houseburning; arson.
4 Bl.Comm. 272.
COMBUSTIO PECUNI2E. Burning of money;
the ancient method of testing mixed and corrupt
money, paid into the exchequer, by melting it
down.
COME. To present oneself; to appear in court.
In modern practice, though such presence may be
constructive only, the word is still used to indicate
participation in the proceedings. Horner v.
O'Laughlin, 29 Md. 472. Melfi v. Barney, R.I., 121
A. 67, 68.
Thus, a pleading may begin, "Now comes the defend-
ant," etc. In case of a default, the technical language of
the record is that the party "comes not, but makes
default."
COMES, v. A word used in a pleading to indicate
the defendant's presence in court. See Come.
COMES, n. Lat. A follower, companion, or at-
tendant; a count or earl.
COMES AND DEFENDS. This phrase, anciently
used in the language of pleading, and still surviv-
ing in some jurisdictions, occurs at the commence-
ment of a defendant's plea or demurrer; and of
its two verbs the former signifies that he appears
in court, the latter that he defends the action.
COMFORT. Benefit, consolation, contentment,
ease, enjoyment, happiness, pleasure, or satisfac-
tion. National Surety Co. v. Jarrett, 95 W.Va. 420,
121 S.E. 291.
COMFORTABLE SPEED. As applied to railway
trains, is a speed which has been developed by ex-
perience and observation to mean that speed at
which you can run a train around a curve, and
the passengers will not feel any uncomfortable or
unpleasant lurch in going around the curve. Ches-
apeake & 0. Ry. Co. v. Tanner, 165 Va. 406, 182
S.E. 239.
COMINUS. Lat. Immediately; hand-to-hand; in
personal contact.
COMITAS. Lat. Courtesy; civility; comity. An
indulgence or favor granted another nation, as a
mere matter of indulgence, without any claim
of right made. Comitas inter communitates; or
comitas inter gentes; comity between communi-
ties or nations; comity of nations. 2 Kent, Comm.
457.
COMITATU COMMISSO. A writ or commission,
whereby a sheriff is authorized to enter upon the
charges of a county. Reg.Orig. 295.
COMITATU ET CASTRO COMMISSO. A writ
by which the charge of a county, together with the
keeping of a castle, is committed to the sheriff.
COMITATUS. In old English law. A county or
shire; the body of a county. The territorial juris-
diction of a comes, i. e., count or earl. 1 Bla.
Comm. 116. An earldom. 1 Ld.Raym. 13. The
county court, a court of great antiquity and of
great dignity in early times. 1 Spence, Eq.Jur. 42,
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COMITES
66. Also, the retinue or train of a prince or high
governmental official. Spelman. The retinue
which accompanied a Roman proconsul to his
province. Du Cange. The personal following of
professional warriors. Taylor, Jurispr. 216.
COMITES. Counts or earls. Attendants or fol-
lowers. Persons composing the retinue of a high
functionary.
Persons who are attached to the suite of a pub-
lic minister. As to their privileges, see Respublica
v. De Longchamps, 1 Da11. (Pa.) 117, 1 L.Ed. 59;
U. S. v. Benner, Baldw. 240, Fed.Cas.No.14,568.
COMITES PALEYS. Counts or earls palatine;
those who had the government of a county pala-
tine.
COMITIA. In Roman law. An assembly, either
(1) of the Roman curiae, in which case it was
called the "comitia curiata vel calata"; or (2) of
the Roman centuries, in which case it was called
the "comitia centuriata" (called also comitia ma-
jora) ; or (3) of the Roman tribes, in which case
it was called the "comitia tributa." Only patri-
cians were members of the first comitia, and only
plebians of the last; but the comitia centuriata
comprised the entire populace, patricians and ple-
bians both, and was the great legislative assembly
passing the leges, properly so called, as the senate
passed the senatus consulta, and the comitia tribu-
ta passed the plebiscita. Under the Lex Horten-
sia, 287 B.C., the plebiscitum acquired the force of
a lex. Brown.
COMITISSA. In old English law. A countess; an
earl's wife.
COMITIVA. In old English law. The dignity and
office of a comes (count or earl) ; the same with
what was afterwards called "comitatus."
Also a companion or fellow-traveler; a troop
or company of robbers. Jacob.
COMITY. Courtesy; complaisance; respect; a
willingness to grant a privilege, not as a matter
of right, but out of deference and good will. Dow
v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1088, L.R.A.
1915D, 754; Cox v. Terminal R. Ass'n of St. Louis,
331 Mo. 910, 55 S.W.2d 685.
Comity of Nations
(Lat. comitas gentium)
The most appropriate phrase to express the
true foundation and extent of the obligation of
the laws of one nation within the territories of
another. Story, Confl.Laws, § 38. That body of
rules which states observe towards one another
from courtesy or mutual convenience, although
they do not form part of international law. Holtz.
Enc. s. v. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct.
139, 40 L.Ed. 95; People v. Rushworth, 294 Ill.
455, 128 N.E. 555, 558; Second Russian Ins. Co. v.
Miller, C.C.A.N.Y., 297 F. 404, 409.
It is derived altogether from the voluntary consent of the
latter; and it is inadmissible when it is contrary to its
known policy, or prejudicial to its interests. In the silence
of any positive rule affirming or denying or restraining the
operation of foreign laws, courts of justice presume the
tacit adoption of them by their own government, unless
repugnant to its policy, or prejudicial to its interests. It
,is not the comity of the courts, but the comity of the
nation, which is administered and ascertained in the same
way, and guided by the same reasoning, by which all other
principles of the municipal law are ascertained and guided.
The recognition which one nation allows within its terri-
tory to the legislative, executive, or judicial acts of another
nation, having due regard both to international duty and
convenience and to the rights of its own citizens or of
other persons who are under the protection of its laws.
State ex rel. National Surety Corporation v. Price, 129 Neb.
433, 261 N.W. 894.
"The use of the word 'comity' as expressing the basis of
jurisdiction has been criticized. It is, however, a mere
question of definition. The principles lying behind the
word are recognized. * * * The truth remains that
jurisdiction depends upon the law of the forum, and this
law in turn depends upon the public policy disclosed by
the acts and declarations of the political departments of
the government." Russian Socialist Federated Soviet
Republic v. Cibrario, 235 N.Y. 255, 139 N.E. 259, 260.
'Judicial Comity
The principle in accordance with which the
courts of one state or jurisdiction will give effect
to the laws and judicial decisions of another, not
as a matter of obligation, but out of deference
and respect. Franzen v. Zimmer, 35 N.Y.S. 612,
90 Hun 103; Stowp v. Bank, C.C.Me., 92 F. 96;
Strawn Mercantile Co. v. First Nat. Bank, Tex.
Civ.App., 279 S.W. 473, 474; Bobala v. Bobala, 68
Ohio App. 63, 33 N.E.2d 845, 849.
There is no statute or common-law rule by which one
court is bound to abide by the decisions of another court
of equal rank. It does so simply for what may be called
comity among judges. There is no common law or statu-
tory rule to oblige a court to bow to its own decisions; it
does so on the ground of judicial comity. (1884) 9 P.D.
98, per Brett, M. R.
Of such a use of the word, however, Dicey says : "The
term 'comity' * * * is open to the charge of implying
that the judge, when he applies foreign law to a particular
case, does so as a matter of caprice or favor."
Comity is not a rule of law, but one of practice, con-
venience and expediency. It is something more than mere
courtesy, which implies only deference to the opinion of
others, since it has a substantial value in securing uni-
formity of decision, and discouraging repeated litigation
of the same question. But its obligation is not imperative.
Comity persuades; but it does not command. It declares
not how a case shall be decided, but how it may with pro-
priety be decided. Mast, Foos & Co. v. Mfg. Co., 177 U.S.
485, 488, 20 S.Ct. 708, 44 L.Ed. 856; National Electric Sig-
naling Co. v. Telefunken Wireless Telegraph Co. of United
States, C.C.A.N.Y., 221 F. 629, 632; Lauer V. Freudenthal,
96 Wash. 394, 165 P. 98, 99.
Comity of States
Simply a phrase designating the practice by
which the courts of one state follow the decision of
another on a like question, though not bound by
law of precedents to do so. Larrick v. Walters, 39
Ohio App. 363, 177 N.E. 642, 645.
COMMA. A point used to mark the smallest
structural divisions of a sentence, or a rhetorical
punctuation mark indicating the slightest possible
separation in ideas or construction. Travelers'
Ins. Co. v. Pomerantz, 124 Misc. 250, 207 N.Y.S. 81,
86.
COMMAND. An order, imperative direction, or
behest. State v. Mann, 2 N.C. 4; Barney v. Hayes,
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11 Mont. 571, 29 P. 282, 28 Am.St.Rep. 495. As
applied to a fortress, "command" means actual
control of the garrison for military purposes. As
applied to a ship, it means actual control of the
crew for nautical purposes. Hamilton v. U. S., C.
C.A.Va., 268 F. 15, 19.
The term "instance," as used with reference to doing an
act at one's instance, does not imply the same degree of
obligation to obey as does "command." Feore v. Tram-
mel, 104 So. 808, 813, 213 Ala. 293.
COMMANDEMENT. In French law. A writ
served by the huissier pursuant to a judgment or
to an executory notarial deed. Its object is to
give notice to the debtor that if he does not pay
the sum to which he has been condemned by the
judgment, or which he engaged to pay by the no-
tarial deed, his property will be seized and sold.
Arg.Fr.Merc.Law, 550.
COMMANDER IN CHIEF. By article 2, § 2, of
the constitution it is declared that the president
shall be commander in chief of the army and
navy of the United States. The term implies su-
preme control of military operations during the
progress of a war, not only on the side of strategy
tactics, but also in reference to the political
and international aspects of the war. See Flem-
ing v. Page, 9 How. 603, 13 L.Ed. 276; Prize Cases,
2 Black, 635, 17 L.Ed. 459; Swaim v. U. S., 28 Ct.
Cl. 173.
COMMANDERY. In old English law. A manor
or chief messuage with lands and tenements there-
to appertaining, which belonged to the priory of
St. John of Jerusalem, in England; he who had the
government of such a manor or house was styled
the "commander," who could not dispose of it, but
to the use of the priory, only taking thence his
own sustenance, according to his degree. The
manors and lands belonging to the priory of St.
John of Jerusalem were given to Henry the Eighth
by 32 Hen. VIII. c. 20, about the time of the dis-
solution of abbeys and monasteries; so that the
name only of commanderies remains, the power
being long since extinct. Wharton.
COMMANDITAIRES. Special partners; partners
en commanditë. See Commandite.
COMMANDITE. In French law. A partnership
in which some furnish money, and others furnish
their skill and labor in place of capital.
A special or limited partnership, where the con-
tract is between one or more persons who are
general partners, and jointly and severally re-
sponsible, and one or more other persons who
merely furnish a particular fund or capital stock,
and thence are called "commanditaires," or "com-
menditaires," or "partners en commanditë," the
business being carried on under the social name
or firm of the general partners only, composed of
the names of the general or complementary part-
ners, the partners in commanditë being liable to
losses only to the extent of the funds or capital
furnished by them. Story, Partn. § 78; 3 Kent,
Comm. 34. The term includes a partnership con-
taining dormant rather than special partners.
Story, Partn. § 109.
COMMANDMENT.
An authoritative order of a judge or magisterial
officer.
In criminal law. The act or offense of one who
commands another to transgress the law, or do
anything contrary to law, as theft, murder, or the
like. Particularly applied to the act of an acces-
sary before the fact, in inciting, procuring, set-
ting on, or stirring up another to do the fact or
act. 2 Inst. 182.
COMMARCHIO. A boundary; the confines of
land.
COMMENCE. To perform the first act of. Rob-
inson v. Gordon Oil Co., 258 Mich. 643, 242 N.W.
795, 796. To institute. State v. Murphy, 120 Kan.
350, 243 P. 288, 289. To demand something by
the institution of process in a court of justice.
Ledonne v. Commerce Ins. Co. of Glen Falls, N.Y.,
307 Pa. 1, 160 A. 612.
To commence an action or suit is to demand
something by the institution of process in a court
of justice. Cohens v. Virginia, 6 Wheat. 408, 5
L.Ed. 257.
To "bring" a suit is an equivalent term; an action Is
"commenced" when it is "brought," and vice versa. Gold-
enberg v. Murphy, 108 U.S. 162, 2 S. Ct. 388, 27 L.Ed. 686 ;
Hannaman v. Gordon, Tex.Com.App., 261 S.W. 1006, 1007.
An action is "commenced" within the meaning of the
statute of limitations as soon as the summons is signed
and sealed in good faith, for the purpose of immediate
service, and that purpose is not afterwards abandoned.
Wilson v. Clear, 85 N.J.L. 474, 89 A. 1031. Compare Glenn
v. Payne, 153 Tenn. 240, 280 S. W. 1019, 1021. Owen v. City
of Eastland, 124 Tex. 419, 78 S.W.2d 178, 179.
A suit in a court of record is "commenced", so as to save
suit from bar of statute of limitations, when the petition
is filed, even though process is not issued until the period
of limitation has run, since plaintiff has done all he can
toward commencement of the suit. Mo.St.Ann. § 724, p.
940. City of St. Louis v. Miller, 235 Mo.App. 987, 145
S.W.2d 504, 505.
A suit in equity is not commenced until the issuance of
a subpoena followed by a bona fide effort to serve it. U. S.
v. Scheurman, D.C.Idaho, 218 F. 915, 919.
To commence drilling operations within the meaning of
an oil and gas lease has reference to the first movement of
the drill in penetrating the ground. Solberg v. Sunburst
Oil & Gas Co., 73 Mont. 94, 235 P. 761, 763. But see Terry
v. Texas Co., Tex.Civ.App., 228 S.W. 1019, holding that a
lessee, by placing timbers for the erection of a derrick,
together with machinery, including a boiler, on the ground
where an oil well was to be drilled, complied with a pro-
vision requiring him to "commence to drill." But com-
pare Lauderdale Power Co. v. Perry, 202 Ala. 394, 80 So.
476, 480.
Criminal prosecution is "commenced" within
statute of limitations when complaint is filed with
magistrate in good faith and warrant issued.
Hicks v. State, 54 Okl.Cr. 431, 23 P.2d 219.
Commencement of building or improvement,
within the meaning of Lien Law, is the visible
commencement of actual operations on the ground
for the erection of the building, which every one
can readily recognize as commencement of a
building, and which is done with intention to con-
tinue the work until building is completed. Se-
curity Stove & Mfg. Co. v. Sellards, 133 Kan. 747,
3 P.2d 481, 482, 76 A.L.R. 1397.
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COMMENCEMENT
COMMENCEMENT OF A DECLARATION. That
part of the declaration which follows the venue
and precedes the circumstantial statement of the
cause of action.
It formerly contained a statement of the names of the
parties, and the character in which they sue or are sued,
if any other than their natural capacity; of the mode in
which the defendant had been brought into court, and a
brief statement of the form of action. In modern practice,
however, in most cases, it contains little else then the
names and character of the parties.
COMMENDA. In French law. The delivery of a
benefice to one who cannot hold the legal title,
to keep and manage it for a time limited and ren-
der an account of the proceeds. Guyot, Rep.Univ.
In Mercantile Law. An association in which the
management of the property was intrusted to in-
dividuals. Troub.Lim.Partn. c. 3, § 27.
COMMENDA EST FACULTAS RECIPIENDI ET
RETINENDI BENEFICIUM CONTRA JUS POSI-
TIVUM A SUPREMA POTESTATE. Moore, 905.
A commendam is the power of receiving and re-
taining a benefice contrary to positive law, by
supreme authority.
COMMENDAM. In ecclesiastical law. The ap-
pointment of a suitable clerk to hold a void or va-
cant benefice or church living until a regular pas-
tor be appointed. Hob. 144; Latch, 236.
In Commercial Law. A species of limited part-
nership. The limited partnership (or Societe en
commanditó) of the French law has been intro-
duced into the Code of Louisiana under the title
of "Partnership in Commendam." Civil Code La.
art. 2810 (Civ.Code, art. 2839). See Mitchell, in
3 Sel.Essays, Anglo-Amer.L.H. 183; Commandite;
Societe.
COMMENDATIO. In the civil law. Commenda-
tion, praise, or recommendation, as in the maxim
"simplex commendatio non obligat," meaning that
mere recommendation or praise of an article by
the seller of it does not amount to a warranty of
its qualities. 2 Kent, Comm. 485.
COMMENDATION. In feudal law. The act by
which an owner of alodial land placed himself and
his land under the protection of a lord, so as to
constitute himself his vassal or feudal tenant.
COMMENDATORS. Secular persons upon whom
ecclesiastical benefices were bestowed, as in Scot-
land; called so because the benefices were com-
mended and intrusted to their supervision. They
are merely trustees.
COMMENDATORY. He who holds a church liv-
ing or preferment in commendam.
COMMENDATORY LETTERS. In ecclesiastical
law. Such as are written by one bishop to another
on behalf of any of the clergy, or others of his
diocese traveling thither, that they may be re-
ceived among the faithful, or that the clerk may be
promoted, or necessaries administered to others,
etc. Wharton.
COMMENDATUS. In feudal law. One who in-
trusts himself to the protection of another. Spel-
man. A person who, by voluntary homage, put
himself under the protection of a superior lord.
Cowell.
COMMENT. The expression of the judgment
passed upon certain alleged facts by a person who
has applied his mind to them, and who while so
commenting assumes that such allegations of fact
are true. The assertion of a fact is not a "com-
ment." Horn v. State, 106 Tex.Cr.R. 190, 292 S.
W. 227, 228.
COMMENT UPON THE EVIDENCE. Means that
trial judge is prohibited from conveying to jury
trial judge's personal opinion as to the truth
or falsity of any evidence, but prohibition does
not prohibit judges from giving counsel reasons
for rulings on questions presented during progress
of trial, or prohibit them in all cases from stat-
ing, when necessary, the facts upon which they
base their conclusions. State v. Brown, 19 Wash.
2d 195, 142 P.2d 257, 259, 260.
COMMERCE. The exchange of goods, produc-
tions, or property of any kind. Jeu Jo Wan v.
Nagle, C.C.A.Cal., 9 F.2d 309, 310.
Intercourse by way of trade and traffic between
different peoples or states and the citizens or in-
habitants thereof, including not only the purchase,
sale, and exchange of commodities, but also the in-
strumentalities and agencies by which it is pro-
moted and the means and appliances by which it
is carried on, and the transportation of persons as
well as of goods, both by land and by sea. Bren-
nan v. Titusville, 14 S.Ct. 829, 153 U.S. 289, 38 L.
Ed. 719; Railroad Co. v. Fuller, 17 Wall. 568, 21
L.Ed. 710; Hoke v. United States, 33 S.Ct. 281,
283, 227 U.S. 308, 57 L.Ed. 523, 43 L.R.A.,N.S., 906,
Ann.Cas.1913E, 905. Also interchange of ideas,
sentiments, etc., as between man and man. U. S.
v. Eason Oil Co., D.C.Okl., 8 F.Supp. 365, 368.
Commerce, in its simplest signification, means an
exchange of goods; but in the advancement of society,
labor, transportation, intelligence, care and various medi-
ums of exchange, become commodities and enter into com-
merce; the subject, the vehicle, the agent, and their
various operations become the objects of commercial
regulation. Lorenzetti v. American Trust Co., D.C.Cal., 45
F.Supp. 128, 132.
"Commerce" is not traffic alone, but is intercourse
between nations and parts of nations in all its branches.
Blumenstock Bros. Advertising Agency v. Curtis Pub. Co.,
252 U.S. 436, 40 S.Ct. 385, 387, 64 L.Ed. 649.
The words "commerce" and "trade" are often used
interchangeably; but, strictly speaking, commerce relates
to intercourse or dealings with foreign nations, states, or
political communities, while trade denotes business inter-
course or mutual traffic within the limits of a state or
nation, or the buying, selling, and exchanging of articles
between members of the same community. Hooker v. Van-
dewater, 4 Denio, N.Y., 353, 47 Am. Dec. 258; Jacob;
Wharton.
—Commerce among the states. Transportation
from one state to another, and also all commercial
intercourse between the different states, and all
component parts of such intercourse. Dahnke-
Walker Milling Co. v. Bondurant, 257 U.S. 282, 42
S.Ct. 106, 108, 66 L.Ed. 239.
—Commerce with foreign nations. Commerce be-
tween citizens of the United States and citizens or
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COMMERCIAL
subjects of foreign governments; commerce
which, either immediately or at some stage of its
progress, is extraterritorial. U. S. v. Holliday, 3
Wall. 409, 18 L.Ed. 182; Veazie v. Moor, 14 How.
573, 14 L.Ed. 545; Lord v. Steamship Co., 102 U.S.
544, 26 L.Ed. 224. The same as "foreign com-
merce," which see infra.
Power of Congress to regulate "commerce with foreign
nations" comprehends every species of commercial inter-
course. U.S.C.A.Const. art. 1, § 8, cl. 3. Board of Trustees
of University of Illinois v. U. S., Cust. & Pat.App., 53 S.Ct.
509, 289 U.S. 48, 77 L.Ed. 1025.
— Commerce with Indian tribes. Commerce with
individuals belonging to such tribes, in the nature
of buying, selling, and exchanging commodities,
without reference to the locality where carried
on, though it be within the limits of a state. U. S.
v. Holliday, 3 Wall. 407, 18 L.Ed. 182; U. S. v.
Cisna, 25 Fed.Cas. 424.
—Domestic commerce. Commerce carried on
wholly within the limits of the United States, as
distinguished from foreign commerce. Also, com-
merce carried on within the limits of a single state,
as distinguished from interstate commerce. Louis-
ville & N. R. Co. v. Tennessee R. R. Com'n, C.C.
Tenn., 19 Fed. 701.
— Foreign commerce. Commerce or trade between
the United States and foreign countries. Com. v.
Housatonic R. Co., 143 Mass. 264, 9 N.E. 547;
Foster v. New Orleans, 94 U.S. 246, 24 L.Ed. 122.
The term is sometimes applied to commerce be-
tween ports of two sister states not lying on the
same coast, e. g., New York and San Francisco.
—Internal commerce. Such as is carried on be-
tween individuals within the same state, or be-
tween different parts of the same state. Lehigh
Val. R. Co. v. Pennsylvania, 145 U.S. 192, 12 S.Ct.
806, 36 L.Ed. 672; Steamboat Co. v. Livingston, 3
Cow. (N.Y.) 713. Now more commonly called "in-
trastate" commerce.
— International commerce. Commerce between
states or nations entirely foreign to each other.
Louisville & N. R. Co. v. Tennessee R. R. Com'n,
C.C.Tenn., 19 F. 701.
—Interstate commerce. Such as is carried on be-
tween different states of the Union or between
points lying in different states. See Interstate
Commerce.
—Intrastate commerce. Such as is begun, carried
on, and completed wholly within the limits of a
single state. Contrasted with "interstate com-
merce" (q. v.). State v. Reed, 53 Mont. 292, 163
P. 477, 479, Ann.Cas.1917E, 783. And see South-
ern Pac. Co. v. State, 19 Ariz. 20, 165 P. 303, 306.
COMMERCIA BELLI. War contracts. Contracts
between nations at war, or their subjects.
Agreements entered into by belligerents, either
in time of peace to take effect in the event of
war, or during the war itself, by which arrange-
ment is made for non-hostile intercourse. They
may take the form of armistices, truces, capitula-
tions, cartels, passports, safe-conducts, safeguards.
1 Kent 159; 2 Opp. 274.
Contracts between citizens of one belligerent
and those of another, or between citizens of one
belligerent and the other belligerent. They may
take the form of ransom bills (q. v.), bills of ex-
change drawn by prisoners of war, or receipts for
requisitions. 1 Kent 104.
COMMERCIAL. Relating to or connected with
trade and traffic or commerce in general. "Zante
Currents", C.C.Cal., 73 F. 189. Occupied with com-
merce. Bowles v. Co-Operative G. L. F. Farm
Products, D.C.N.Y., 53 F.Supp. 413, 415.
COMMERCIAL AGENCY. The same as a "mer-
cantile" agency. In re United States Mercantile
Reporting, etc., Co., 4 N.Y.S. 916, 52 Hun, 611.
See Mercantile.
COMMERCIAL AGENT. An officer in the con-
sular service of the United States, of rank inferior
to a consul. Also used as equivalent to "commer-
cial broker," see infra.
COMMERCIAL BROKER. One who negotiates
the sale of merchandise without having the posses-
sion or control of it, being distinguished in the lat-
ter particular from a commission merchant. Ad-
kins v. Richmond, 98 Va. 91, 34 S.E. 967, 47 L.R.A.
583, 81 Am.St.Rep. 705.
COMMERCIAL CORPORATION. One engaged in
commerce in the broadest sense of that term;
hence including a railroad company. Sweatt v.
Railroad Co., 23 Fed.Cas. 530.
COMMERCIAL COURT. A name applied in Eng-
lish practice to the trial of commercial causes in
London and Liverpool before judges of the High
Court. It is said to be "a mere piece of conven-
ience in the arrangement of business." [1895] 2
Ch. 491.
COMMERCIAL DOMICILE. See Domicile.
COMMERCIAL ESTABLISHMENT. A place
where commodities are exchanged, bought or
sold. State ex rel. Kansas City Power & Light Co.
v. Smith, 342 Mo. 75, 111 S.W.2d 513, 515.
COMMERCIAL FRUSTRATION. Excuse of par-
ty from performance if contract depends on ex-
istence of given person or thing and such per-
son or thing perishes, and if contract is rendered
impossible by act of God, the law, or other party.
Wood v. Bartolino, 48 N.M. 175, 146 P.2d 883, 885,
890.
In theory it amounts to no more than a condition or
term of a contract which the law implies to take the place
of a covenant that it is assumed would have been inserted
by the parties had the contingency which arose occurred
to them at the time they made the contract. Lloyd v.
Murphy, Cal.App., 142 P.2d 939, 942, 943. And doctrine is
predicated upon premise of giving relief in a situation
where parties could not reasonably protect themselves by
terms of a contract against happening of subsequent
events. Berline v. Waldschmidt, 159 Kan. 585, 156 P.2d
865, 867. Hence doctrine has no application where events
were reasonably foreseeable and controllable by the par--
ties.
Black's Law Dictionary Revised 4th Ed.-22
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COMMERCIAL
COMMERCIAL INSOLVENCY. Inability of a
businessman to pay his debts as they become due
in the regular and ordinary course of business.
Willing v. Eveloff, C;C.A.Pa., 94 F.2d 344, 346.
COMMERCIAL INSURANCE, See Insurance.
COMMERCIAL LAW. A phrase used to designate
the whole body of substantive jurisprudence ap-
plicable to the rights, intercourse, and relations
of persons engaged in commerce, trade, or mer-
cantile pursuits. It is not a very scientific or ac-
curate term. As foreign commerce is carried on
by means of shipping, the term has come to be
used occasionally as synonymous with "maritime
law;" but, in strictness, the phrase "commercial
law" is wider, and includes many transactions or
legal questions which have nothing to do with
shipping or its incidents. Watson v. Tarpley, 18
How. 521, 15 L.Ed. 509; , Williams v. Gold Hill
Min. Co., C.C.Cal., 96 F. 464.
COMMERCIAL LETTER OF CREDIT. See Let-
ter of Credit under the title Credit.
COMMERCIAL MARK. In French law. A trade-
mark is specially or purely the mark of the manu-
facturer or producer of the article, while a "com-
mercial" mark is that of the dealer or merchant
who distributes the product to consumers or the
trade. La Republique Francaise v. Schultz, C.C.
N.Y., 57 F. 41.
COMMERCIAL PAPER. Bills of exchange, prom-
issory notes, bank-checks, and other negotiable in-
struments for the payment of money, which, by
their form and on their face, purport to be such
instruments as are, by the law-merchant, recog-
nized as falling under the designation of "commer-
cial paper." In re Hercules Mut. L. Assur. Soc.,
6 Ben. 35, 12 Fed.Cas. 12. Negotiable paper given
in due course of business, whether the element of
negotiability be given it by the law-merchant or
by statute. In re Sykes, D.C.I11., 5 Biss. 113, Fed.
Cas.No.13,708; Martin v. McAvoy, 130 Wash. 641,
228 P. 694; Postal Telegraph Cable Co. v. Citi-
zens' Nat. Bank, C.C.A.N.J., 228 F. 601, 604.
COMMERCIAL PARTNERSHIP. A "commercial
and trading partnership" is one that buys and
sells;—distinguished from one of employment and
occupation. Reid v. Linder, 77 Mont. 406, 251 P.
157, 161.
COMMERCIAL RAILROADS. A term used to
embrace those railroads intended to carry all
freight and passenger traffic between one town or
place and another, and usually not constructed
upon streets and highways except for short dis-
tances;—distinguished from street railways. An-
halt v. Waterloo, C. F. & N. Ry. Co., 166 Iowa, 479,
147 N.W. 928, 931.
COMMERCIAL TRAVELER. A drummer; a
traveling salesman who simply exhibits samples
of goods kept for sale by his principal, and takes
orders frorp purchasers for such goods, which
goods are trfterwards to be delivered by the prin-
cipal to the purchasers, and payment for the goods
is to be made by the purchasers to the principal
on such delivery. McKindly v. .Dunham, 55 Wis.
515, 13 N.W. 485, 42 Am.Rep. 740.
An agent who sells by sample and on credit, is not
Intrusted with the possession of the goods to be sold, has
no implied authority to receive payment, and payment to
whom will not discharge the purchawr. Butler v. Dorman,
68 Mo. 302, 30 Am.Rep. 795; Seiple v. Irwin, 30 Pa. 513 ;
Kornemann v. Monaghan, 24 Mich. 36.
COMMERCIUM. Lat. In the civil law. Com-
merce; business; trade; dealings in the nature
of purchase and sale; a contract.
COMMERCIUM JURE GENTIUM COMMUNE
ESSE DEBET, ET NON IN MONOPOLIUM ET
PRIVATUM PAUCORUM QUIESTUM CONVER-
TENDUM. 3 Inst. 181. Commerce, by the law of
nations, ought to be common, and not converted
to monopoly and the private gain of a few.
COMMINALTY. The commonalty or the people.
COMMINATORIUM. In old practice. A clause
sometimes added at the end of writs, admonishing
the sheriff to be faithful in executing them. Bract.
fol. 398.
COMMINGLE. To put together in one mass.
Pfau v. State, 148 Ind. 539, 47 N.E. 927, 929.
COMMINUTED FRACTURE. One in which the
bones have been somewhat crushed. Sang v. City
of St. Louis, 262 Mo. 454, 171 S.W. 347, 349.
COMMISE. In old French law. Forfeiture; the
forfeiture of a fief; the penalty attached to the
ingratitude of a vassal. Guyot, Inst.Feod. c. 12.
COMMISSAIRE. In French law. A person who
receives from a meeting of shareholders a special
authority, viz., that of checking and examining
the accounts of a manager or of valuing the ap-
ports en nature, (q. v.) The name is also applied
to a judge who receives from a court a special
mission, e. g., to institute an inquiry, or to exam-
ine certain books, or to supervise the operations
of a bankruptcy. Arg.Fr.Merc.Law, 551.
COMMISSAIRES—PRISEURS. In French law.
Auctioneers, who possess the exclusive right of
selling personal property at public sale in the
towns in which they are established; and they
possess the same right concurrently with notaries,
greffiers, and huissiers, in the rest of the arron-
dissement. Arg.Fr.Merc.Law, 551.
COMMISSARIA LEX. A principle of the Roman
law relative to the forfeiture of contracts. See
Commissoria Lex.
COMMISSARIAT. The whole body of officers
who make up the commissaries' department of
an army.
COMMISSARY.
In ecclesiastical law. One who is sent or dele-
gated to execute some office or duty as the repre-
sentative of his superior; an officer of the bishop,
who exercises spiritual jurisdiction in distant parts
of the diocese. 1 Holdsw.Hist.L. 369.
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COMMISSION
In military law. An officer whose principal du-
ties are to supply an army with provisions and
stores. As to the rank and duties of such officers
in the United States army, see 10 U.S.C.A. § 71 et
seq.
COMMISSARY COURT. A Scotch ecclesiastical
court of general jurisdiction, held before four com-
missioners, members of the Faculty of Advocates,
appointed by the crown.
COMMISSION. A warrant or authority or let-
ters patent, issuing from the government, or one
of its departments, or a court, empowering a per-
son or persons named to do certain acts, or to ex-
ercise jurisdiction, or to perform the duties and
exercise the authority of an office, (as in the case
of an officer in the army or navy.) Bledsoe v.
Colgan, 138 Cal. 34, 70 P. 924.
Also, in private affairs, it signifies the authority
or instructions under which one person transacts
business or negotiates for another.
In a derivative sense, a body of persons to
whom a commission is directed. A board or com-
mittee officially appointed and empowered to per-
form certain acts or exercise certain jurisdiction
of a public nature or relation; as a "commission
of assise."
Civil Law
A species of bailment, being an undertaking,
without reward, to do something in respect to an
article bailed; equivalent to "mandate."
Commercial Law
The recompense or reward of an agent, factor,
broker, or bailee, when the same is calculated as
a percentage on the amount of his transactions
or on the profit to the principal. In this sense,
however, the word occurs perhaps more frequently
in the plural. Gray v. Stern, 85 Wash. 645, 149 P.
26, 28. Jackson v. Stanfield, 137 Ind. 592, 57 N.E.
14, 23 L.R.A. 588. Sinclair Coal Co. v. Pittsburg
and Ashland Coal and Dock Co., 178 Minn. 114,
226 N.W. 206, 208. But the term may mean simply
a compensation; Smith v. Starke, 196 Mich. 311,
162 N.W. 998, 999; and does not necessarily imply
a mere per centum valuation; Jenkins v. Locke-
Paddon Co., 30 Cal.App. 52, 157 P. 537.
Also, a compensation to an administrator for
the faithful discharge of his duties. In re Jula's
Estate, 3 N.J.Misc. 976,130 A. 733, 735.
Criminal Law
Doing or perpetration; the performance of an
act. Groves v. State, 116 Ga. 516, 42 S.E. 755, 59
L.R.A. 598.
Practice
An authority or writ issuing from a court, in
relation to a cause before it, directing and au-
thorizing a person or persons named to do some
act or exercise some special function; usually to
take the depositions of witnesses.
COMMISSION DAY. In English practice. The
opening day of the assises.
COMMISSION DE LUNATICO INQUIRENDO.
The same as a commission of lunacy, (see infra.)
In re Misselwitz, 177 Pa. 359, 35 A. 722.
COMMISSION DEL CREDERE. In commercial
law. Where an agent of a seller undertakes to
guaranty to his principal the payment of the debt
due by the buyer. Story, Ag. 28.
The phrase "del credere" is borrowed from the Italian
language, in which its signification is equivalent to our
word "guaranty" or "warranty."
COMMISSION GOVERNMENT. A method of
municipal government in which the legislative
power is in the hands of a few persons. State v.
Ure, 91 Neb. 31, 135 N.W. 224. Gardner v. Board
of Park Directors, 35 Cal.App. 597, 170 P. 672, 673
(mayor held not a "commissioner").
COMMISSION MERCHANT. A term which is
synonymous with "factor." It means one who
receives goods, chattels, or merchandise for sale,
exchange, or other disposition, and who is to re-
ceive a compensation for his services, to be paid
by the owner, or derived from the sale, etc., of the
goods. State v. Thompson, 120 Mo. 12, 25 S.W.
346. One whose business is to receive and sell
goods for a commission, being intrusted with the
possession of the goods to be sold, and usually
selling in his own name. Hughes v. Young, 17
Tenn.App. 24, 65 S.W.2d 858, 864.
Factors are frequently called "commission merchants".
and it is said that there is no difference in the meaning of
these terms, the latter being perhaps more commonly used
in America. Thompson v. Woodruff, 7 Cold. 410; Duguid
v. Edwards, 50 Barb., N.Y., 288; Lyon v. Alvord, 18 Conn.
80.
A commission merchant or factor differs from a broker
in that he may buy and sell in his own name without dis-
closing his principal and has the goods in his possession
while the broker can only buy or sell in the name of his
principal, and has no possession of the goods sold. Slack
v. Tucker, 23 Wall. 321, 330, 23 L.Ed. 143; Perkins v.
State, 50 Ala. 154, 156. A commission merchant has a lien
upon the goods for his charges, advances, and commis-
sions, while the broker has no control of the property and
is responsible only for bad faith. A commission merchant
or factor has a special property in the goods. Sutton v.
Kiel Cheese & Butter Co., 155 Ky. 465, 159 S.W. 950, 951.
A "factor" or "commission merchant" is one who has the
actual or technical possession of goods or wares of another
for sale, while a "merchandise broker" is one who nego-
tiates the sale of merchandise without having it in his pos-
session or control, being simply an agent with very limited
powers. Hughes v. Young, 17 Tenn.App. 24, 65 S.W.2d 858,
864.
See, also, Factor.
COMMISSION OF ANTICIPATION. In English
law. An authority under the great seal to collect
a tax or subsidy before the day.
COMMISSION OF APPRAISEMENT AND SALE.
Where property has been arrested in an admiralty
action in rem and ordered by the court to be sold,
the order is carried out by a commission of ap-
praisement and sale; in some cases (as where the
property is to be released on bail and the value is
disputed) a commission of appraisement only is
required. Sweet.
COMMISSION OF ARRAY. In English law. A
commission issued to send into every county offi-
cers to muster or set in military order the inhabi-
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COMMISSION
tants, The introduction of commissions of lieu-
tenancy, which contained, in substance, the same
powers as these commissions, superseded them.
2 Steph.Comm. (7th Ed.) 582,
COMMISSION OF ASSIZE. In English practice.
A commission which formerly issued from the
king, appointing certain persons as commissioners
or judges of assize to hold the assizes in associa-
tion with discreet knights during those years in
which the justices in eyre did not come. A com-
mission issued to judges of the high court or court
of appeal, authorizing them to sit at the assizes
for the trial of civil actions.
COMMISSION OF BANKRUPT. A commission or
authority formerly granted by the lord chancellor
to such persons as he should think proper, to ex-
amine the bankrupt in all matters relating to his
trade and effects, and to perform various other
important duties connected with bankruptcy mat-
ters. But now, under St. 1 & 2 Wm. IV. c. 56, § 12,
a fiat issues instead of such commission.
COMMISSION OF CHARITABLE USES. This
commission issues out of chancery to the bishop
and others, where lands given to charitable uses
are misemployed, or there is any fraud or dis-
pute concerning them, to inquire of and redress
the same, etc.
COMMISSION OF DELEGATES. When any sen-
tence was given in any ecclesiastical cause by the
archbishop, this commission, under the great seal,
was directed to certain persons, usually lords,
bishops, and judges of the law, to sit and hear an
appeal of the same to the king, in the court of
chancery. But latterly the judicial committee of
the privy council has supplied the place of this
commission. Brown.
COMMISSION OF LUNACY. A commission is-
suing from a court of competent jurisdiction, au-
thorizing an inquiry to be made into the mental
condition of a person who is alleged to be a luna-
tic.
A writ issued out of chancery, or such court as may
have jurisdiction of the case, directed to a proper officer,
to inquire whether a person named therein is a lunatic or
not. In re Moore, 68 Cal. 281, 9 P. 164.
COMMISSION OF PARTITION. In the former
English equity practice, this was a commission
or authority issued to certain persons, to effect a
division of lands held by tenants in common de-
siring a partition; when the commissioners re-
ported, the parties were ordered to execute mu-
tual conveyances to confirm the division. Com-
missioners appointed to make partition are in the
nature of arbitrators. Clough v. Cromwell, 250
Mass. 324, 145 N.E. 473, 474.
COMMISSION OF REBELLION. In English law.
An attaching process, formerly issuable out of
chancery, to enforce obedience to a process or de-
cree; abolished in August, 1841.
COMMISSION OF 'REVIEW. In English eccle-
siastical law. A commission formerly sometimes
granted in extraordinary cases, to revise the sen-
tence of the court of delegates. 3 Bl.Comm. 67.
Now out of use, the privy council being substitut-
ed for the court of delegates, as the great court
of appeal in all ecclesiastical causes. 3 Steph.
Comm. 432.
COMMISSION OF THE PEACE. In English law.
A commission from the crown, appointing certain
persons therein named, jointly and severally, to
keep the peace, etc. Justices of the peace are al-
ways appointed by special commission under the
great seal, the form of which was settled by all
the judges, A. D. 1590, and continues with little
alteration to this day. 1 Bl.Comm. 351; 3 Steph.
Comm. 39, 40.
COMMISSION OF TREATY WITH FOREIGN
PRINCES. Leagues and arrangements made be-
tween states and kingdoms, by their ambassadors
and ministers, for the mutual advantage of the
kingdoms in alliance. Wharton.
COMMISSION OF UNLIVERY. In an action in
the English admiralty division, where it is neces-
sary to have the cargo in a ship unladen in order
to have it appraised, a commission of unlivery is
issued and executed by the marshal. Williams &
B. Adm. Jur. 233.
COMMISSION TO EXAMINE • WITNESSES. In
practice. A commission issued out of the court
in which an action is pending, to direct the taking
of the depositions of witnesses who are beyond
the territorial jurisdiction of the court.
COMMISSION TO TAKE ANSWER IN CHAN-
CERY. In English law. A commission issued
when defendant lives abroad to swear him to such
answer. 15 & 16 Vict. c. 86, § 21. Obsolete. See
Jud. Acts, 1873, 1875.
COMMISSION TO TAKE DEPOSITIONS. A
written authority issued by a court of justice, giv-
ing power to take the testimony of witnesses who
cannot be personally produced in court. Tracy v.
Suydam, 30 Barb. (N. Y.) 110.
COMMISSIONED OFFICERS. In the United
States army and navy and marine corps, those of
or above the rank of second lieutenant. Davis,
Mil. L. 26. Those who hold their rank and office
under commissions issued by the president, as
distinguished from non-commissioned officers (in
the army, including sergeants, corporals, etc.) and
warrant officers (in the navy, including boat-
swains, gunners, etc.) and from privates or en-
listed men. Stephens v. Civil Service Commission
of New Jersey, 101 N.J.Law 192, 127 A. 808, 811.
See Babbitt v. U. S., 16 Ct.C1. 202.
COMMISSIONER. A person to whom a commis-
sion is directed by the government or a court.
State v. Banking Co., 14 N.J.L. 437; In re Canter,
81 N.Y.S. 338, 40 Misc. 126.
In the governmental system of the United
States, this term denotes an officer who is charged
with the administration of the laws relating to
some particular subject-matter, or the manage-
ment of some bureau or agency of the govern-
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ment. Such are the commissioners of education,
of patents, of pensions, of fisheries, of the general
land-office, of Indian affairs, etc.
In the state governmental systems, also, and in
England, the term is quite extensively used as a
designation of various officers having a similar
authority and similar duties.
In the commission form of municipal govern-
ment, the term is applied to any of the several
officers constituting the commission. Gardner v.
Board of Park Directors, 35 Cal.App. 597, 170 P.
672, 673.
—Commissioners of bail. Officers appointed to
take recognizances of bail in civil cases.
— Commissioners of bankrupts. The name given,
under the former English practice in bankruptcy,
to the persons appointed under the great seal to
execute a commission of bankruptcy (q. v.).
—Commissioners of circuit courts. Officers ap-
pointed by and attached to the former circuit
courts of the United States, performing functions
partly ministerial and partly judicial. In re
Com'rs of Circuit Court, C.C.N.C., 65 F. 317. Their
office was abolished by the Act of May 28, 1896
(34 Stat. 184) and they have been succeeded by
"United States commissioners." See that title.
—Commissioners of deeds. Officers empowered
by the government of one state to reside in an-
other state, and there take acknowledgments of
deeds and other papers which are to be used as
evidence or put on record in the former state.
--Commissioners of highways. Officers appointed
in each county or township, in many of the states,
with power to take charge of the altering, open-
ing, repair, and vacating of highways within such
county or township.
—Commissioner of patents. The title given by
law to the head of the patent office. See 35 USCA
§ 2.
— Commissioners of sewers. In English law.
Commissioners appointed under the great seal,
and constituting a court of special jurisdiction;
which is to overlook the repairs of the banks and
walls of the seacoast and navigable rivers, or,
with consent of a certain proportion of the owners
and occupiers, to make new ones, and to cleanse
such rivers, and the streams communicating there-
with. St. 3 & 4 Wm. IV. c. 22, § 10; 3 .Steph.
Comm. 442.
— Commissioner of woods and forests. An officer
created by act of parliament of 1817, to whom
was transferred the jurisdiction of the chief jus-
tices of the forest. Inderwick, The King's Peace.
—County commissioners. See County.
COMMISSIONS. The compensation or reward
paid to a factor, broker, agent, bailee, executor,
trustee, receiver, etc., usually calculated as a per-
centage on the amount of his transactions or the
amount received or expended. See Commission.
COMMISSIVE. Caused by or consisting in acts of
commission, as distinguished from neglect, suf-
ferance, or toleration; as in the phrase "commis-
sive waste," which is contrasted with "permissive
waste." See Waste.
COMMISSORIA LEX. In Roman law. A law
according to which a seller might stipulate that he
should be freed from his obligation, and might
rescind the sale, if the purchase price were not
paid at the appointed time. Also a law by which
a debtor and his pledgee might agree that, if the
debtor did not pay at the day appointed, the
pledge should become the absolute property of the
creditor. This, however, was abolished by a law
of Constantine. Cod. 8, 35, 3. See Dig. 18, 3;
Mackeld. Rom.Law, §§ 447, 461; 2 Kent, Comm.
583.
COMMIT. To perpetrate, as a crime; to perform,
as an act. Groves v. State, 116 Ga. 516, 42 S.E.
755, 59 L.R.A. 598.
To send a person to prison by virtue of a law-
ful authority, for any crime or contempt, or to an
asylum, workhouse, reformatory, or the like, by
authority of a court or magistrate. People v.
Beach, 122 Cal. 37, 54 P. 369.
To deliver a defendant to the custody of the
sheriff or marshal, on his surrender by his bail.
1 Tidd, Pr. 285, 287.
COMMITMENT. In practice. The warrant or
mittimus by which a court or magistrate directs
an officer to take a person to prison. Authority
for holding in prison one convicted of crime. Ex
parte Haynes, 98 Tex.Cr.R. 609, 267 S.W. 490, 493.
A process directed to a ministerial officer by which
a person is to be confined in prison, usually issued
by a court or magistrate. People ex rel. Wojek v.
Henderson, 235 N.Y.S. 173, 178, 134 Misc. 228.
A warrant which does not direct an officer to commit a
party to prison but only to receive him into custody and
safely keep him for further examination, is not a commit-
ment. Gilbert v. U. S., 23 Ct.C1. 218.
The act of sending a person to prison by means
of such a warrant or order. Allen v. Hagan, 170
N.Y. 46, 62 N.E. 1086.
A proceeding for the restraining and confining
of insane persons for their own and the public's
protection. Vance v. Ellerbe, 150 La. 388, 90 So.
735, 740.
COMMITTED IN PRESENCE OF OFFICER. Un-
der statutes authorizing arrest without warrant,
when facts and circumstances occurring within
officer's observation, in connection with what, un-
der circumstances, may be considered as common
knowledge, give him probable cause to believe or
reasonable grounds to suspect that such is the
case. Noce v. Ritchie, 109 W.Va. 391, 155 S.E. 127,
128.
COMMITTEE. A person, or an assembly or board
of persons, to whom the consideration, determina-
tion, or management of any matter is committed
or referred, as by a court. Lloyd v. Hart, 2 Pa.
473, 45 Am.Dec. 612; Farrar v. Eastman, 5 Me.
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COMMITTEE
345; Blaisdell v. Inhabitants of Town of York, 110
Me. 500, 87 A. 361, 370.
An individual or body to whom others have
delegated or committed a particular duty, or who
have taken on themselves to perform it in the ex-
pectation of :their act being confirmed by the body
they profess to represent or act for. 15 Mees. &
W. 529.
The term is especially applied to the person or persons
who are invested, by order of the proper court, with the
guardianship of the person and estate of one who has been
adjudged a lunatic.
In parliamentary law. A portion of a legisla-
tive body, comprising one or more members, who
are charged with the duty of examining some mat-
ter specially referred to them by the house, or of
deliberating upon it, and reporting to the house
the result of their investigations or recommending
a course of action.
A committee may be appointed for one special occasion,
or it may be appointed to deal with all matters which may
be referred to it during a whole session or during the life
of the body. In the latter case, it is called a "standing
committee." It is usually composed of a comparatively
small number of members, but may include the whole
house.
Joint committee. A joint committee of a legis-
lative body comprising two chambers is a com-
mittee consisting of representatives of each of the
two houses, meeting and acting together as one
committee.
Secret committee. A secret committee of the
house of commons is a committee specially ap-
pointed to investigate a certain matter, and to
which secrecy being deemed necessary in further-
ance of its objects, its proceedings are conducted
with closed doors, to the exclusion of all persons
not members of the committee. All other commit-
tees are open to members of the house, although
they may not be serving upon them. Brown.
COMMITTING MAGISTRATE. An inferior judi-
cial officer who is invested with authority to con-
duct the preliminary hearing of persons charged
with crime, and either to discharge them for lack
of sufficient prima facie evidence or to commit
them to jail to await trial or (in some jurisdic-
tions) to accept bail and release them thereon.
The term is said to be synonymous with "examin-
ing court." State v. Rogers, 31 N.M. 485, 247 P.
828, 833.
COMMITTITUR. In practice. An order or min-
ute, setting forth that the person named in it is
committed to the custody of the sheriff.
COMMITTITUR PIECE. In English law. An in-
strument in writing on paper or parchment, which
charges a person, already in prison, in execution
at the suit of the person who arrested him. 2
Chit.Archb.Pr. (12th Ed.) 1208.
COMMIXTIO, or COMMIXTION. In the civil law.
The mixing together or confusion of things, dry or
solid, belonging to different owners, as distin-
guished from confusio, which has relation to liq-
uids. Lec. Elem. du Dr. Rom. §§ 370, 371; Story,
Bailm. § 40; 1 Bouvier, Inst. n. 506.
COMMODATE. Where property is loaned gratui-
tously by owner for sole benefit, accommodation,
and use of borrower, and specific thing loaned is
to be returned. The Pegeen, D.C.Cal., 14 F.Supp.
748, 751. See, also, Commodatum.
COMMODATI ACTIO. Lat. In the civil law. An
action of loan; an action for a thing lent. An ac-
tion given for the recovery of a thing loaned,
(commodatum,) and not returned to the lender.
Inst. 3, 15, 2; Id. 4, 1, 16.
COMMODATO. In Spanish law. A contract by
which one person lends gratuitously to another
some object not consumable, to be restored to him
in kind at a given period; the same contract as
commodatum (q. v.).
COMMODATUM. A contract by which one of the
parties binds himself to return to the other certain
personal chattels which the latter delivers to him
to be used by him without reward; loan for use.
Slack v. Bryan, 299 Ky. 132, 184 S.W.2d 873, 876.
A gratuitous loan of goods to be temporarily used by the
bailee, and returned in specie. Hanes v. Shapiro & Smith,
168 N.C. 24, 84 S.E. 33, 35. He who lends to another a
thing for a definite time, to be enjoyed and used under cer-
tain conditions, without any pay or reward, is called "corn-
modans ;" the person who receives the thing is :called
"commodatarius," and the contract is called "commo-
datum." It differs from locatio and conductio, in this :
that the use of the thing is gratuitous. Dig. 13, 6; Inst.
3, 2, 14; Story, Bailm, § 221. Coogs v. Bernard, 2
Ld.Raym. 909; Adams v. Mortgage Co., 82 Miss. 263, 34
So. 482, 17 L.R.A.,N.S., 138, 100 Am.St.Rep. 633; World's
Columbian Exposition Co. v. Republic of France, C.C.A.
Ill., 96 F. 693, 38 C.C.A. 483.
COMMODITIES. Those things which are useful
or serviceable, particularly articles of merchan-
dise movable in trade. American League Baseball
Club of Chicago v. Chase, 149 N.Y.S. 6, 15, 86 Misc.
441.
Goods, wares, and merchandise of any kind;
movables; articles of trade or commerce. Queen
Ins. Co. v. State, 86 Tex. 250, 24 S.W. 397, 22 L.R.
A. 483. Movable articles of value; things that are
bought and sold. United States v. Sischo, D.C.
Wash., 262 F. 1001, 1005. See, also, Commodity.
This word is a broader term than merchandise, and, in
referring to commerce may include almost any article of
movable or personal property. Pound v. Lawrence, Tex.
Civ. App., 233 S. W. 359, 361; Shuttleworth v. State, 35 Ala.
415; State v. Henke, 19 Mo. 225.
Labor has been held not to be a commodity. Rohlf v.
Kasemeier, 140 Iowa 182, 118 N.W. 276, 23 L.R.A., N.S.,
1285. But it has been held that the supplying of telephone
service is the supplying of a commodity of commerce ;
McKinley Telephone Co. v. Cumberland Telephone Co., 152
Wis. 359, 140 N.W. 38, 39; and it has also been thought
that the privilege of receiving property by will or intestate
succession is a commodity subject to the Massachusetts
excise law ; Dana v. Dana, 226 Mass. 297, 115 N.E. 418, 419.
COMMODITIES CLAUSE. A clause in the act of
Congress, June 29, 1906 (49 USCA § 1 (8), provid-
ing that it shall be unlawful for any railroad
company to transport commodities (excepting
timber and its manufactured products) manufac-
tured, mined or produced by it, or under its au-
thority, or which it may own in whole or in part,
or in which it may have any interest, direct or
indirect, except such articles or commodities as
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COMMON
may be necessary and intended for its use in its
business. U. S. v. R. Co., 31 S.Ct. 387, 220 U.S. 257,
55 L.Ed. 458.
COMMODITY. In the most comprehensive sense,
convenience, accommodation, profit, benefit, ad-
vantage, interest, commodiousness.
In the commercial sense, any movable or tangi-
ble thing that is produced or used as the subject
of barter or sale. People v. Epstean, 170 N.Y.S.
68, 79, 102 Misc. 476. See Commodities.
COMMODITY RATE. With reference to rail-
roads, a rate which applies to a specific commodi-
ty alone ;—distinguished from a "class rate,"
meaning a single rate which applies to a number
of articles of the same general character. Nor-
folk Southern R. Co. v. Freeman Supply Corpora-
tion, 145 Va. 207, 133 S.E. 817, 818.
COMMODORE. A grade in the United States
navy, superior to a captain. Omitted from the
active list. Act of March 3 ., 1899, c. 413, 30 Stat.
1004. See 34 USCA § 1.
COMMODUM EX INJURIA SUA NEMO HABERE
DEBET. No person ought to have advantage
from his own wrong. Jenk.Cent. 161; Finch, Law,
b. 1, c. 3, n. 62.
COMMON, n. An incorporeal hereditament which
consists in a profit which one man has in connec-
tion with one or more others in the land of an-
other. Trustees v. Robinson, 12 Serg. & R. (Pa.)
31; Thomas v. Inhabitants of Marshfield, 10 Pick.
(Mass.) 364; 3 Kent 403; United States v. 1,010.8
Acres, More or Less, Situate in Sussex County,
Del., D.C.Del., 56 F.Supp. 120, 132, 134,
In English law, is an incorporeal right which lies in
grant, originally commencing on some agreement between
lords and tenants, which by time has been formed into
prescription, and continues good, although there be no deed
or instrument to prove the original contract. 4 Coke, 37;
1 Crabb, Real Prop. p. 258, § 268.
Common, or a right of common, is a right or privilege
which several persons have to the produce of the lands or
waters of another. Van Rensselaer v. Radcliff, 10 Wend.,
N.Y., 647, 25 Am.Dec. 582.
Also an uninclosed piece of land set apart for
public or municipal purposes, in many cities and
villages of the United States. Newell v. Hancock,
67 N.H. 244, 35 A. 253. United States v. 1,010.8
Acres, More or Less, Situate in . Sussex County,
Del., D.C.Del., 56 F.Supp. 120, 122, 134.
—Common appendant. A right annexed to the
possession of arable land, by which the owner is
entitled to feed his beasts on the lands of another,
usually of the owner of the manor of which the
lands entitled to common are a part. 2 Bl.Comm.
33; Van Rensselaer v. Radcliff, 10 Wend. (N.Y.)
648.
—Common appurtenant. A right of feeding one's
beasts on the land of another, (in common with
the owner or with others,) which is founded on a
grant, or a prescription which supposes a grant.
1 Crabb, Real Prop. p. 264, § 277.
This kind of common arises from no connection of ten-
ure, and is against common right; it may commence by
grant within time of memory, or, in other words, may be
created at the present day ; it may be claimed as annexed
to any kind of land, and may be claimed for beasts not
commonable, as well as those that are. 2 Bl.Comm. 33;
Van Rensselaer v. Radcliff, 10 Wend., N.Y.,. 649.
—Common because of vicinage is where the in-
habitants of two townshi p s which lie contiguous
to each other have usually intercommoned with
one another, the beasts of the one straying mutual-
ly into the other's fields, without any molestation
from either. 2 Bl.Comm. 33; Co. Litt. 122a; 4
Co. 38a; 10 Q.B. 581, 589, 604; Smith v. Floyd, 18
Barb. (N.Y.) 523.
This Is, indeed, only a permissive right, intended to
excuse what, in strictness, is a trespass in both, and to
prevent a multiplicity of suits, and therefore either town-
ship may inclose and bar out the other, though they have
intercommoned time out of mind.
—Common in gross, or at large. A species of
common which is neither appendant nor appur-
tenant to land, but is annexed to a man's person,
being granted to him and his heirs by deed; or it
may be claimed by prescriptive right, as by a par-
son of a church or the like corporation sole. 2
Bl.Comm. 34. It is a separate inheritance, entire-
ly distinct from any other landed property, vested
in the person to whom the common right belongs.
2 Steph.Comm. 6; Mitchell v. D'Olier, 68 N.J.L.
375, 53 A. 467, 59 L.R.A. 949.
—Common of digging. Common of digging, or
common in the soil, is the right to take for one's
own use part of the soil or minerals in another's
land; the most usual subjects of the right are
sand, gravel, stones, and clay. It is of a very
similar nature to common of estovers and of tur-
bary. Elton, Com. 109.
—Common of estovers. A liberty of taking neces-
sary wood for the use or furniture of a house or
farm from off another's estate, in common with
the owner or with others. 2 Bl.Comm. 35. It
may be claimed, like common of pasture, either
by grant or prescription. 2 Steph.Comm. 10;
Plowd. 381; Van Rensselaer v. Radcliff, 10 Wend.
(N.Y.) 648.
—Common of fishery. The same as Common of
piscary. See infra.
— Common of fowling. In some parts of the coun-
try a right of taking wild animals (such as conies
or wildfowl) from the land of another has been
found to exist; in the case of wildfowl, it is called
a "common of fowling." Elton, Corn. 118.
— Common of pasture. The right or liberty of
pasturing one's cattle upon another man's land.
It may be either appendant, appurtenant, in gross,
or because of vicinage. Van Rensselaer v. Rad-
cliff, 10 Wend. (N.Y.) 647.
—Common of piscary. The right or liberty of
fishing in another man's water, in common with
the owner or with other persons. 2 Bl.Comm. 34.
A liberty or right of fishing in the water covering
the soil of another person, or in a river running
through another's land. 3 Kent, Comm. 409. Har-
din v. Jordan, 11 S.Ct. 808, 140 U.S. 371, 35 L.Ed.
428. It is quite different from a common fishery,
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COMMON
with which, however, it is frequently confounded.
See Fishery.
—Common of shack. A species of common by
vicinage prevailing in the counties of Norfolk,
Lincoln, and Yorkshire, in England; being the
right of persons occupying lands lying together
in the same common field to turn out their cattle
after harvest to feed promiscuously in that field.
2 Steph.Comm. 6, 7; 5 Coke, 65; 1 B. & Ald. 710.
—Common of turbary. In its modern sense the
right of taking peat or turf from the waste land
of another, for fuel in the commoner's house. Wil-
liams, Common, 187; Van Rensselaer v. Radcliff,
10 Wend. (N.Y.) 647; 4 Co. 37; 3 Atk. 189, Noy,
145; 7 East, 127.
— Common sans nombre. Common without num-
ber, that is, without limit as to the number of
cattle which may be turned on; otherwise called
"common without stint." Bract. fols. 53b, 222b;
2 Steph.Comm. 6, 7; 2 Bl.Comm. 34. United
States v. 1,010.8 Acres, More or Less, Situate in
Sussex County, Del., D.C.Del., 56 F.Supp. 120, 133.
— Common, tenants in. See Tenants in Common.
—Common without stint. Another name for
Common sans nombre. See supra.
COMMON, adj. Usual, ordinary, accustomed;
shared among several; owned by several jointly.
Koen v. State, 35 Neb. 676, 53 N.W. 595, 17 L.R.A.
821. Belonging or pertaining to many or to the
majority; generally or prevalent, of frequent or
ordinary occurrence or appearance; familiar by
reason of frequency. Webb v. New Mexico Pub.
Co., 47 N.M. 279, 141 P.2d 333, 335. Also, usual,
customary, and habitual, professed, or confessed,
and used indefinitely in various terms implying
illegal or criminal conduct, such as common scold,
common thief, etc. Levine v. State, 166 A. 300,
302, 110 N.J.L. 467.
As to common "Bail," "Barretor," "Carrier,"
"Chase," "Condedit," "Council," "Counts," "Day,"
"Debtor,"  "Diligence," "Drunkard," "Error,"
"Fishery," "Highway," "Informer," "Inn," "Intend-
ment," "Intent," "Jury," "Labor," "Nuisance," "Oc-
cupant," "Property," "School," "Scold," "Seal,"
"Seargeant," "Stock," "Traverse," "Vouchee,"
"Wall," see those titles.
—Common appearance. That which could be filed
by the plaintiff, who could enter a rule on the de-
fendant to plead, where the defendant, after due
service of process on him, had removed from the
jurisdiction without having entered an appear-
ance, or could not be found. 12 Geo. II., c. 29; 1
Troub. & Haly, Pr. 159; Bender v. Ryan, 9 Wkly.
Notes Cas. (Pa.) 144.
—Common assurances. The several modes or in-
struments of conveyance established or authorized
by the law of England. Called "common" because
thereby every man's estate is assured to him. 2
Bl.Comm. 294. The legal evidences of the transla-
tion of property, whereby every person's estate
is assured to him, and all controversies, doubts,
and difficulties are either prevented or removed.
Wharton.
—Common causes or suits. A term anciently
used to denote civil actions, or those depending
between subject and subject, as distinguished from
pleas of the crown. Dallett v. Feltus, 7 Phila.
(Pa.) 627.
—Common condidit. See Condedit.
—Common danger. "Common danger" which
gives a right to contribution in general average
does not mean equal danger; hence, the fact that
a part of the cargo of a stranded steamship is of
a kind which is in little danger of injury does not
relieve it of the liability to contribute. Willcox,
Peck & Hughes v. American Smelting & Refining
Co., D.C.N.Y., 210 F. 89, 91.
—Common design. In criminal law. Community
of intention between two or more persons to do
an unlawful act. State v. Hill, 273 Mo. 329, 201
S.W. 58, 60.
—Common enterprise. See Joint enterprise.
—Common fine. In old English law. A certain
sum of money which the residents in a leet paid
to the lord of the leet, otherwise called "head sil-
ver," "cert money," (q. v.,) or "certum letce."
Termes de la Ley; Cowell; Fleta; Wharton. A
sum of money paid by the inhabitants of a manor
to their lord, towards the charge of holding a
court leet. Bailey, Diet.
—Common form. A will is said to be proved in
common form when the executor proves it on his
own oath; as distinguished from "proof by wit-
nesses," which is necessary when the paper pro-
pounded as a will is disputed. Hubbard v. Hub-
bard, 7 Or. 42; Sutton v. Hancock, 118 Ga. 436, 45,
S.E. 504.
—Common hall. A court in the city of London,
at which all the citizens, or such as are free of
the city, have a right to attend.
—Common learning. Familiar law or doctrine..
Dyer, 27b, 33.
—Common liquor dealer. In Florida, one who, be-
ing charged with unlawfully engaging in and car-
rying on the business of a dealer in liquors, has
been before convicted of a like offense and duly
sentenced therefor. Thomas v. State, 74 Fla. 200,.
76 So. 780. See, also, Common thief, infra.
—Common peril. See Common danger, supra.
—Common place. Common pleas. The English
court of common pleas is sometimes so called in
the old books.
—Common prayer. The liturgy, or public form
of prayer prescribed by the Church of England
to be used in all churches and chapels, and which
the clergy are enjoined to use under a certain
penalty.
—Common repute. The prevailing belief in a giv-
en community as to the existence of a certain fact
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COMMON LAW
or aggregation of facts. Brown v. Foster, 41 S.
C. 118, 19 S.E. 299.
—Common right. A term applied to rights, privi-
leges, and immunities appertaining to and enjoyed
by all citizens equally and in common, and which
have their foundation in the common law. Co.
Inst. 142a; Spring Valley Waterworks v. Schot-
tler, 62 Cal. 106.
—Common seller. A common seller of any com-
modity (particularly under the liquor laws of
many states) is one who sells it frequently, usual-
ly, customarily, or habitually; in some states, one
who is shown to have made a certain number of
sales, either three or five. State v. O'Conner, 49
Me. 596; State v. Nutt, 28 Vt. 598; Moundsville
v. Fountain, 27 W.Va. 194; Com. v. Tubbs, 1 Cush.
(Mass.) 2.
—Common sense. Sound practical judgment.,
that degree of intelligence and reason, as exer-
cised upon the relations of persons and things and
the ordinary affairs of life, which is possessed by
the generality of mankind, and which would suf-
fice to direct the conduct and actions of the in-
dividual in a manner to agree with the behavior
of ordinary persons.
—Common service. That service in which are
engaged (with reference to the fellow-servant
rule) all those who enter into the service of a
common master, except those who become heads
of and vested with absolute control of separate
departments or branches of a great and diversified
business. Union Pac. R. Co. v. Marone, C.C.A.
Neb., 246 F. 916, 923.
The term, in its broadest and most obvious sense, would
include all activities prosecuted in the business of the
master which have for their purpose the attainment of one
common end ; nevertheless, an employee, invested with the
duty of overseeing, directing, and controlling workmen, is
not a fellow servant with respect to the discharge of those
duties, but is a representative of the master. Funk v. Ful-
ton Iron Works Co., 311 Mo. 77, 277 S. W. 566, 569.
—Common thief. One who by practice and habit
is a thief; or, in some states, one who has been
convicted of three distinct larcenies at the same
term of court. Stevens v. Com., 4 Metc. (Mass.)
364.
—Common use. This phrase, as used in an anti-
trust law extending to contracts affecting the
prices of articles or commodities in "common use,"
describes articles used by the people in general;
such articles or commodities as are in general use
or used to a great extent in the homes of the
people; the articles which are produced to be sold
to the people, to be consumed and used by the
people in general, and to be found for sale in all
the marts of trade. People v. Epstean, 102 Misc.
476, 170 N.Y.S. 68, 75. It suggests the opposite of
casual use. Geis v. State, 126 Md. 265, 94 A. 909,
910.
—Common victualer. The keeper of a restaurant
or public eating house, where the food sold is eat-
en on the premises. Commonwealth v. Meckel,
221 Mass. 70, 108 N.E. 917.
—Common weal. The public or common good or
welfare.
—Common woman. One who is low, inferior, vul-
gar, or coarse; also, one who is unchaste. But
the term does not necessarily impute unchastity.
Daniel v. Moncure, 58 Mont. 193, 190 P. 983, 985.
COMMON BAR. In pleading. (Otherwise called
"blank bar.") A plea to compel the plaintiff
to assign the particular place where the trespass
has been committed. Steph.Pi. 256.
COMMON BENCH. The ancient name for the
English court of common pleas. Its original title
appears to have been simply "The Bench," but it
was designated "Common Bench" to distinguish
it from the "King's Bench," and because in it were
tried and determined the causes of common per-
sons, i. e., causes between subject and subject, in
which the crown had no interest.
COMMON ENEMY DOCTRINE. Recognized as
to surface waters in but a few states, under which
no natural easement or servitude exists in favor
of the superior or higher land as to mere surface
water, or such as falls or accumulates by rains
or the melting of snow; and the proprietor of the
inferior or lower tenement or estate may at his
option lawfully obstruct or hinder the flow of such
water thereon, and in so doing may turn back or
off of his own lands, and onto and over the lands
of other proprietors, such water, without liability
by reason of such obstruction or diversion. Mil-
ler v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 411,
85 A.L.R. 451.
COMMON HUMANITY DOCTRINE. Where a
passenger becomes sick or is injured while en
route, carrier owes duty under "common humanity
doctrine" to render to passenger such reasonable
care and attention as common humanity would
dictate. Alabama Great S. R. Co. v. Taylor, 190
Miss. 69, 199 So. 310, 312.
COMMON KNOWLEDGE. Is what court may de-
clare applicable to action without necessity of
proof. It is knowledge that every intelligent per-
son has. Strain v. Isaacs, 59 Ohio App. 495, 18 N.
E.2d 816, 825. It includes matters of learning,
experience, history, and facts of which judicial no-
tice may be taken. Shelley v. Chilton's Adm'r, 236
Ky. 221, 32 S.W.2d 974, 977.
COMMON LAW. As distinguished from the Ro-
man law, the modern civil law, the canon law,
and other systems, the common law is that body
of law and juristic theory which wa ,  originated,
developed, and formulated and is adr. tinistered in
England, and has obtained among nost of the
states and peoples of Anglo-Saxon stock. Lux v.
Haggin, 69 Cal. 255, 10 P. 674.
As distinguished from law created by the en-
actment of legislatures, the common law compris-
es the body of those principles and rules of action,
relating to the government and security of per-
sons and property, which derive their authority
solely from usages and customs of immemorial
antiquity, or from the judgments and decrees of
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COMMON LAW
the courts recognizing, affirming, and enforcing
such usages and customs; and, in this sense, par-
ticularly the ancient unwritten law of England.
1 Kent, Comm. 492. Western Union Tel. Co. v.
Call Pub. Co., 21 S.Ct. 561, 181 U.S. 92, 45 L.Ed.
765; Barry v. Port Jervis, 72 N.Y.S. 104, 64 App.
Div. 268; U. S. v. Miller, D.C.Wash., 236 F. 798,
800.
As distinguished from equity law, it is a body
of rules and principles, written or unwritten,
which are of fixed and immutable authority, and
which must be applied to controversies rigorously
and in their entirety, and cannot be modified to
suit the peculiarities of a specific case, or colored
by any judicial discretion, and which rests con-
fessedly upon custom or statute, as distinguished
from any claim to ethical superiority. Klever v.
Seawall, C.C.A.Ohio, 65 F. 395, 12 C.C.A. 661.
As distinguished from ecclesiastical law, it is
the system of jurisprudence administered by the
purely secular tribunals.
As concerns its force and authority in the Unit-
ed States, the phrase designates that portion of
the common law of England (including such acts
of parliament as were applicable) which had been
adopted and was in force here at the time of the
Revolution. This, so far as it has not since been
expressly abrogated, is recognized as an organic
part of the jurisprudence of most of the United
States. Industrial Acceptance Corporation v.
Webb, Mo.App., 287 S.W. 657, 660.
The "common law" of England, which is the rule of
decision in all courts of Montana, in so far as it is not
repugnant to the Constitution of the United States or the
Constitution or laws of that state, means that body of
jurisprudence as applied and modified by the courts of this
country up to the time it was adopted in Montana. Herrin
v. Sutherland, 74 Mont. 587, 241 P. 328, 330, 42 A.L.R. 937.
See, also, Norvell-Wilder Hardware Co. v. McCamey, Tex.
Civ.App., 290 S.W. 772, 773; Fletcher v. Los Angeles
Trust & Savings Bank, 182 Cal. 177, 187 P. 425, 427.
The common law of England, adopted by Pol. Code Cal.
§ 4468, does not refer solely to the lex non scripta, the com-
mon law unmodified by statute, but contemplates the whole
body of jurisprudence as it stood, influenced by statute at
the time when the Code section was adopted, and also
embraces equity. Martin v. Superior Court of California
in and for Alameda County, 176 Cal. 289, 168 P. 135, 136,
L.R.A.1918B, 313.
In a wider sense than any of the foregoing, the
"common law" may designate all that part of the
positive law, juristic theory, and ancient custom
of any state or nation which is of general and
universal application, thus marking off special or
local rules or customs.
For "Federal Common Law," see that title.
As a compound adjective "common-law" is un-
derstood as contrasted with or opposed to "statu-
tory," and sometimes also to "equitable" or to
"criminal." See examples below.
COMMON-LAW ACTION. A civil suit, as dis-
tinguished from a criminal prosecution or a pro-
ceeding to enforce a penalty or a police regula-
tion; not necessarily an action which would lie at
common law. Kirby v. Railroad Co., C.C.Iowa,
106 F. 551; U. S. v. Block, 24 Fed.Cas. 1,174.
COMMON-LAW ASSIGNMENTS. Such forms of
assignments for the benefit of creditors as were
known to the common law, as distinguished from
such as are of modern invention or authorized by
statute. Ontario Bank v. Hurst, C.C.A.Mich., 103
F. 231, 43 C.C.A. 193.
COMMON-LAW CHEAT. The obtaining of money
or property by means of a false token, symbol,
or device; this being the definition of a cheat or
"cheating" at common law. State v. Renick, 33
Or. 584, 56 Pac. 275, 44 L.R.A. 266, 72 Am.St.Rep.
758.
COMMON-LAW CONTEMPT. A name sometimes
applied to proceedings for contempt which are
criminal in their nature, as distinguished from
those which are intended as purely civil remedies
ordinarily arising out of the alleged violation of
some order entered in the course of a chancery
proceeding. People v. Samuel, 199 Ill.App. 294,
297; People v. Buconich, 199 Ill.App. 410, 412.
COMMON-LAW COURTS. In England, those ad-
ministering the common law. Equitable L. Assur.
Soc. v. Paterson, 41 Ga. 364, 5 Am.Rep. 535.
COMMON-LAW CRIME. One punishable by the
force of the common law, as distinguished from
crimes created by statute. In re Greene, C.C.
Ohio, 52 F. 104.
COMMON-LAW JURISDICTION. Jurisdiction of
a court to try and decide such cases as were cog-
nizable by the courts of law under the English
common law; the jurisdiction of those courts
which exercise their judicial powers according to
the course of the common law. U. S. v. Power,
27 Fed.Cas. 607.
COMMON-LAW LARCENY. See Larceny.
COMMON-LAW LIEN. One known to or granted
by the common law, as distinguished from statu-
tory, equitable, and maritime liens; also one aris-
ing by implication of law, as distinguished from
one created by the agreement of the parties. The
Menominie, D.C.Minn., 36 F. 197; Tobacco Ware-
house Co. v. Trustee, 117 Ky. 478, 78 S.W. 413, 64
L.R.A. 219.
It is a right extended to a person to retain that
which is in his possession belonging to another,
until the demand or charge of the person in pos-
session is paid or satisfied. Whiteside v. Rocky
Mountain Fuel Co., C.C.A.Colo., 101 F.2d 765, 769;
Goldwater v. Mendelson, 8 N.Y.S. 627, 629, 170
Misc. 422.
COMMON-LAW MARRIAGE. One not solemniz-
ed in the ordinary way, but created by an agree-
ment to marry, followed by cohabitation; a con-
summated agreement to marry, between persons
legally capable of making marriage contract, per
verba de prwsenti, followed by cohabitation. Col-
lins v. Hoag and Rollins, 121 Neb. 716, 238 N.W.
351
There must be a public and continued recognition of such
relation by the parties as distinguished from occasional or
incidental recognition.  Whitaker v. Shenault, Tex.Civ.
App., 172 S.W. 202, 203.
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COMMONS
COMMON-LAW MORTGAGE. One possessing
the characteristics or fulfilling the requirements
of a mortgage at common law; not known in
Louisiana, where the civil law prevails; but such
a mortgage made in another state and affecting
lands in Louisiana, will be given effect there as
a "conventional" mortgage, affecting third per-
sons after due inscription. Gates v. Gaither, 46
La.Ann. 286, 15 So. 50.
COMMON-LAW PROCEDURE ACTS. Three acts
of parliament, passed in the years 1852, 1854, and
1860, respectively, for the amendment of the pro-
cedure in the common-law courts. The common-
law procedure act of 1852 is St. 15 & 16 Vict. c.
76; that of 1854, St. 17 & 18 Vict. c. 125; and that
of 1860, St. 23 & 24 Vict. c. 126. Mozley & Whit-
ley.
COMMON-LAW REMEDY. This phrase, within
the meaning of U. S. Judicial Code 1911, § 256
(Act March 3, 1911, c. 231, 36 Stat. 1100, see His-
torical and Revision Notes under 28 U.S.C.A. §
1333), was not limited to remedies in the com-
mon-law courts, but embraced all methods of en-
forcing rights and redressing injuries known to
the common or statutory law. Kennerson v.
Thames Towboat Co., 89 Conn. 367, 94 A. 372, 375,
L.R.A. 1916A, 436. See, also, Northern Pacific S.
S. Co. v. Industrial Acc. Commission of California,
174 Cal. 346, 163 P. 199, 202. See Notes of Deci-
sions under 28 U.S.C.A. § 1333.
The "right of a common-law remedy," saved to suitors
in actions maritime in their nature arising under charter
parties by U. S. Judicial Code 1911, § 24, par. 3 (see His-
torical and Revision Notes under 28 U.S.C.A. § 1333) did
not include attempted changes by the states in the substan-
tive admiralty law, but did include all means, other than
proceedings in admiralty, which may be employed to
enforce the right or to redress the injury involved, and
included remedies in pais, as well as proceedings in court;
judicial remedies conferred by statute, as well as those
existing in the common law; remedies in equity, as well
as those enforceable in a court of law. Red Cross Line v.
Atlantic Fruit Co., 44 S.Ct. 274, 277, 264 U.S. 109, 68 L.Ed.
582.
COMMON-LAW TRADE-MARK. One appropriat-
ed under common-law rules, regardless of statutes.
Stratton & Terstegge Co. v. Stiglitz Furnace Co.,
258 Ky. 678, 81 S.W.2d 1, 3.
COMMON-LAW WIFE. A woman who was party
to a "common-law marriage," as above defined;
or one who, having lived with a man in a relation
of concubinage during his life, asserts a claim,
after his death, to have been his wife according
to the requirements of the common law. In re
Brush, 49 N.Y.S. 803, 25 App.Div. 610.
COMMON LAWYER. A lawyer learned in the
common law.
COMMON NIGHTWALKER. See Night Walkers.
COMMON NUISANCE. A danger or damage
threatening the public. Canfield v. Quayle, 10 N.
Y.S.2d 781, 784, 170 Misc. 621.
COMMON OPINION IS GOOD AUTHORITY IN
LAW. Co.Litt. 186a, Bank of Utica v. Mersereau,
3 Barb.Ch. (N.Y.) 528, 577, 49 Am.Dec. 189.
COMMON PLEAS. The name of a court of record
having general original jurisdiction in civil suits.
COMMON PLEAS, THE COURT OF. See Court
of Common Pleas.
COMMON RECOVERY. In conveyancing. A spe-
cies of common assurance, or mode of conveying
lands by matter of record, formerly in frequent
use in England. It was in the nature and form
of an action at law, carried regularly through,
and ending in a recovery of the lands against the
tenant of the freehold; which recovery, being a
supposed adjudication of the right, bound all per-
sons, and vested a free and absolute fee-simple in
the recoverer. 2 Bl.Comm. 357. Christy v. Burch,
25 Fla. 942, 2 So. 258. Common recoveries were
abolished by the statutes 3 & 4 Wm. IV. c. 74.
They were resorted to when the object was to create an
absolute bar of estates tail, and of the remainders and re-
versions expectant on the determination of such estates. 2
BlaComm. 357. Though it has been used in some of the
states, this form of conveyance is practically obsolete,
easier and less expensive modes of making conveyances
having been substituted. Frost v. Cloutman, 7 N. H. 9, 26
Am. Dec. 723.
COMMONABLE. Entitled to common. Common-
able beasts are either beasts of the plow, as hors-
es and oxen, or such as manure the land, as kine
and sheep. Beasts not commonable are swine,
goats, and the like. Co. Litt. 122a; 2 Bl.Comm. 33.
COMMONALTY. The great body of citizens; the
mass of the people, excluding the nobility.
The body of people composing a municipal cor-
poration, excluding the corporate officers.
The body of a society or corporation, as dis-
tinguished from the officers. 1 Perr. & D. 243.
Charters of incorporation of the various tradesmen's soci-
eties, etc., in England are usually granted to the master,
wardens, and commonalty of such corporation.
COMMONANCE. The commoners, or tenants and
inhabitants, who have the right of common or
commoning in open field. Cowell.
COMMONERS. In English law. Persons having
a right of common. So called because they have
a right to pasture on the waste, in common with
the lord. 2 H.B1. 389.
COMMONS. The class of subjects in Great
Britain exclusive of the royal family and the no-
bility. They are represented in parliament by the
house of commons.
Part of the demesne land of a manor, (or land
the property of which was in the lord,) which,
being uncultivated, was termed the "lord's waste,"
and served for public roads and for common of
pasture to the lord and his tenants. 2 Bl.Comm.
90.
Squares; pleasure grounds and spaces or open
places for public use or public recreation owned
by towns ;—in modern usage usually called
"parks." Jones v. City of Jackson, 104 Miss. 449,
61 So. 456, 457.
COMMONS, HOUSE OF. See House of Commons.
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COMMONTY
COMMONTY. In Scotch law. Land possessed in
common by different proprietors, or by those hav-
ing acquired rights of servitude. Bell.
COMMONWEALTH. The public or common weal
or welfare. This cannot be regarded as a techni-
cal term of public law, though often used in poli-
tical science. It generally designates, when so
employed, a republican frame of government,—
one in which the welfare and rights of the entire
mass of people are the main consideration, ra-
ther than the privileges of a class or the will of
a monarch; or it may designate the body of citi-
zens living under such a government.
Sometimes it may denote the corporate entity,
or the government, of a jural society (or state)
possessing powers of self-government in respect
of its immediate concerns, but forming an integral
part of a larger government, (or nation.) State
v. Lambert, 28 S.E. 930, 44 W.Va. 308.
In this latter sense, it is the official title of several of
the United States (as Pennsylvania, Massachusetts, Vir-
ginia, and Kentucky), and would be appropriate to them
all. In the former sense, the word was used to designate
the English government during the protectorate of Crom-
well.
See Government; Nation; State.
COMMORANCY. The dwelling in any place as
an inhabitant; which consists in usually lying
there. 4 Bl.Comm. 273. In American law it is
used to denote a mere temporary residence. Pul-
len v. Monk, 82 Me. 412, 19 A. 909; Gilman v. In-
man, 85 Me. 105, 26 A. 1049.
COMMORANT. Staying or abiding; dwelling
temporarily in a place. One residing in a particu-
lar town, city, or district. Barnes, 162.
COMMORIENTES. Several persons who perish
at the same time in consequence of the same
calamity.
COMMORTH, or COMORTH. A contribution
which was gathered at marriages, and when
young priests said or sung the first masses. Pro-
hibited by 26 Hen. VIII. c. 6. Cowell.
COMMOTE. Half a cantred or hundred in Wales,
containing fifty villages. Also a great seignory
or lordship, and may include one or divers manors.
Co. Litt. 5.
COMMOTION. A "civil commotion" is an insur-
rection of the people for general purposes, though
it may not amount to rebellion where there is a
usurped power. 2 Marsh.Ins. 793; Boon v. Insur-
ance Co., 40 Conn. 584; Grame v. Assur. Soc., 5
S.Ct. 150, 112 U.S. 273, 28 L.Ed. 716; Spruill v.
Insurance Co., 46 N.C. 127.
A civil commotion is an uprising among a mass
of people which occasions a serious and prolonged
disturbance and infraction of civil order not at-
taining the status of war or an armed insurrec-
tion; it is a wild and irregular action of many
persons assembled together. Hartford Fire Ins.
Co., Hartford, Conn. v. War Eagle Coal Co., C.C.
A.W.Va., 295 F. 663, 665. The term refers to poli-
tical disorders, not to an economic disturbance.
The Poznan, D.C.N.Y., 276 F. 418, 427.
COMMUNE, adj. Lat. See Communis.
COMMUNE, n. A self-governing town or village.
The name given to the committee of the people
in the French revolution of 1793; and again, in
the revolutionary uprising of 1871, it signified the
attempt to establish absolute self-government in
Paris, or the mass of those concerned in the at-
tempt. In old French law, it signified any Muni-
cipal corporation. And in old English law, the
commonalty or common people. 2 Co.Inst. 540.
COMMUNE CONCILIUM. The King's Council.
See Privy Council.
COMMUNE CONCILIUM REGNI. The common
council of the realm. One of the names of the
English parliament. See Communitas Regni An-
COMMUNE FORUM. The common place of jus-
tice. The seat of the principal courts, especially
those that are fixed.
COMMUNE PLACITUM. In old English law. A
common plea or civil action, such as an action of
debt.
COMMUNE VINCULUM. A common or mutual
bond. Applied to the common stock of consan-
guinity, and to the feodal bond of fealty, as the
common bond of union between lord and tenant.
2 Bl.Comm. 250; 3 Bl.Comm. 230.
COMMUNI CUSTODIA. In English law. An ob-
solete writ which anciently lay for the lord, whose
tenant, holding by knight's service, died, and left
his eldest son under age, against a stranger that
entered the land, and obtained the ward of the
body. Reg. Orig. 161.
COMMUNI DIVIDUNDO. In the civil law. An
action which lies for those who have property
in common, to procure a division. It lies where
parties hold land in common but not in partner-
ship. Calvin.
COMMUNIA. In old English law. Common
things, res communes. Such as running water,
the air, the sea, and sea shores. Bract. fol. 7b.
COMMUNIA PLACITA. In old English law.
Common pleas or actions; those between one
subject and another, as distinguished from pleas
of the crown.
COMMUNIA PLACITA NON TENENDA IN
SCACCARIO. An ancient writ directed to the
treasurer and barons of the exchequer, forbidding
them to hold pleas between common persons (i.
e., not debtors to the king, who alone originally
sued and were sued there) in that court, where
neither of the parties belonged to the same. Reg.
Orig. 187.
COMMUNLE. In feudal law on' the continent of
Europe, this name was given to towns enfran-
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COMMUNIS
chised by the crown, about the twelfth century,
and formed into free corporations by grants call-
ed "charters of community."
COMMUNIBUS ANNIS. In ordinary years; on
the annual average.
COMMUNICATE. To bestow, convey, make
known, recount, impart; to give by way of infor-
mation. Whitford v. North State Life Ins. Co., 163
N.C. 223, 79 S.E. 501, 502, Ann.Cas.1915B, 270;
Prevost v. Morgenthau, 106 F.2d 330, 334, 70 App.
D.C. 306.
COMMUNICATION. Information given, the shar-
ing of knowledge by one with another; confer-
ence; consultation or bargaining preparatory to
making a contract. Intercourse; connection. Al-
so, the Masonic equivalent for the word "meet-
ing." State v. Goodwyn, 83 W.Va. 255, 98 S.E. 577.
Something said by one person to another ;-so used in a
statute providing that neither a party nor his or her spouse
shall be examined as a witness as to personal transactions
or communications between witness and persons since de-
ceased. Secor v. Sl y er, 188 Iowa, 1126, 161 N.W. 769, 772,
176 N.W. 981.
"Transactions and communications," within statute
declaring inadmissible testimony of interested witness con-
cerning transactions and communications between himself
and deceased person, embrace every variety of affairs which
conform to the subject of negotiation, interviews, or actions
between two persons, and include every method by which
one person can derive impressions or information from the
conduct, condition or language of another. Bright v. Vir-
ginia & Gold Hill Water Co., C.C.A.Nev., 270 F. 410, 413.
The act of communicating;-so used in a statute declar-
ing that no husband or wife shall be compelled to disclose
any confidential communication made by one to the other
during marriage. Whitford v. North State Life Ins. Co.,
163 N.C. 223, 79 S.E. 501, 502, Ann.Cas.1915B, 270. In a
broader sense, the word embraces all knowledge upon the
part of either obtained by reason of the marriage relations,
and which but for the confidence growing out of such rela-
tion would not have been known. Prudential Ins. Co. of
America v. Pierce's Adm'r, 270 Ky. 216, 109 S.W.2d 616, 617.
As used in a statute providing that an attorney cannot,
without the consent of his client, be examined as to any
communication made by the client, "communication" is
not restricted to mere words but includes acts as well. Ex
parte McDonough, 170 Cal. 230, 149 P. 566, 567, L.R.A.
1916C, 593, Ann.Cas.1916E, 327.
French Law
The production of a merchant's books, by de-
livering them either to a person designated by
the court, or to his adversary, to be examined in
all their parts, and as shall be deemed necessary
to the suit. Arg. Fr. Merc. Law, 552.
-Confidential communications. These are certain
classes of communications, passing between per-
sons who stand in a confidential or fiduciary rela-
tion to each other, (or who, on account of their
relative situation, are under a special duty of sec-
recy and fidelity,) which the law will not permit
to be divulged, or allow them to be inquired into
in a court of justice, for the sake of public policy
and the good order of society. Examples of such
privileged relations are those of husband and wife
and attorney and client. Hatton v. Robinson, 14
Pick.Mass. 416, 25 Am.Dec. 415; Parker v. Carter,
4 Munf.Va. 287, 6 Am.Dec. 513; Parkhurst v. Ber-
dell, 110 N.Y. 386, 18 N.E. 123, 6 Am.St.Rep. 384.
-Privileged communication. In the law of evi-
dence. A communication made to a counsel, soli-
citor, or attorney, in professional confidence, and
which he is not permitted to divulge; otherwise
called a "confidential communication." 1 Starkie,
Ev. 185.
In the law of libel and slander. A defamatory
statement made to another in pursuance of a duty,
political, judicial, social, or ,personal, so that an
action for libel or slander will not lie, though the-
statement be false, unless in the last two cases
actual malice be proved in addition. Bacon v.
Railroad Co., 66 Mich. 166, 33 N.W. 181; 5 E. &
B. 347.
When a communication is fairly made by one in the dis-
charge of a public or private duty, legal, moral, or social,
of perfect or imperfect obligation, or in the conduct of his
own affairs, to one who has a corresponding interest to
receive such communication, it is "privileged," Interna-
tional & G. N. Ry. Co. v. Edmundson, Tex.Com.App., 222
S.W. 181, 183, if made in good faith and without actual
malice, Baker v. Clark, 186 Ky. 816, 218 S.W. 280, 285. A
"privileged communication" is one made in good faith,
upon any subject-matter in which the party communicating
has an interest, or in reference to which he has, or hon-
estly believes he has, a duty, and which contains matter
which, without the occasion upon which it is made, would
be defamatory and actionable. Peak v. Taubman, 251 Mo.
390, 158 S. W. 656, 663. In a "privileged communication"
the words used, if defamatory and libelous, are excused,
while in "fair comment" the words are not a defamation
of plaintiff and not libelous. Van Lonkhuyzen v. Daily
News Co., 203 Mich. 570, 170 N.W. 93, 99.
Privileged communications are either (1) absolutely priv-
ileged, or (2) conditionally or qualifiedly privileged.
Grantham v. Wilkes, 135 Miss. 777, 100 So. 673. An "abso-
lutely privileged communication" is one made in the inter-
est of the public service or the due administration of jus-
tice, and is practically limited to legislative and judicial
proceedings and other actions of state. Grantham v.
Wilkes, 135 Miss. 777, 100 So. 673. By an "absolutely priv-
ileged" publication is not to be understood a publication
for which the publisher is in no wise responsible, but it
means a publication in respect of which, by reason of the
occasion upon which it is made, no remedy can be had in a
civil action for slander or libel, Peterson v. Cleaver, 105
Neb. 438, 181 N.W. 187, 189, 15 A.L.R. 447, even though the
words are published maliciously and with knowledge of
their falsity, Spencer v. Looney, 116 Va. 767, 82 S.E. 745,
747. A "qualifiedly privileged communication" is a
slanderous statement uttered in good faith upon a proper
occasion and from a proper motive based upon an honest
belief that it is true, but, unlike communications wholly
privileged, the defendant has the burden of proving want
of malice or ill will. Peak v. Taubman, 251 Mo. 390, 158
S. W. 656, 665. A communication "qualifiedly privileged"
is one which is prima facie privileged only, and in which
the privilege may be lost by proof of malice in the publi-
cation. Spencer v. Looney, 116 Va. 767, 82 S.E. 745, 747.
A communication made in good faith upon any subject-
matter in which the party communicating has an interest
or in reference to which he has a duty, either legal, moral,
or social, if made to a person having a corresponding inter-
est or duty, is "qualifiedly privileged." Peterson v. Clea-
ver, 105 Neb. 438, 181 N.W. 187, 189, 15 A.L.R. 447; Mas-
see v. Williams, C.C.A.Tenn., 207 F. 222, 230; German-
American Ins. Co. v. Huntley, 62 Okl. 39, 161 P. 815, 818.
COMMUNINGS. In Scotch law. The negotia-
tions preliminary to entering into a contract.
COMMUNIO BONORUM. In the civil law. A
community of goods.
COMMUNION OF GOODS. In Scotch law. The
right enjoyed by married persons in the movable
goods belonging to them. Bell.
COMMUNIS, COMMUNE, adj. Lat. Common.
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COMMUNIS
COMMUNIS ERROR FACIT JUS. Common error
makes law. 4 Inst. 240; Noy, Max. p. 37, max. 27.
Common error goeth for a law. Finch, Law, b. 1,
c. 3, no. 54. Common error sometimes passes cur-
rent as law. Broom, Max. 139,440.
What was at first illegal is presumed, when repeated
many times, to have acquired the force of usage; and then
it would be wrong to depart from it. 1 Ld.Raym. 42; 6
Cl. & F. 172; 3 M. & S. 396; Goodman v. Eastman, 4 N.H.
458; Kent v. Kent, 2 Mass. 357; Davey v. Turner, 1 Da11.
13, 1 L.Ed. 15. The converse of this maxim is communis
error non tacit jus. A common error does not make law.
4 Inst. 242; 3 Term 725; 6 Term 564.
COMIVIUNIS OPINIO. Common opinion; general
professional opinion. According to Lord Coke
(who places it on the footing of observance or
usage), common opinion is good authority in law.
Co. Litt. 186a.
COMMUNIS PARIES. In the civil law. A com-
mon or party wall. Dig. 8, 2, 8, 13.
COMMUNIS RIXATRIX. In old English law. A
common scold, (q. v.) 4 Bl.Comm. 168.
COMMUNIS SCRIPTURA. In old English law.
A common writing; a writing common to both
parties; a chirograph. Glan. lib. 8, c. 1.
COMMUNIS STIPES. A common stock of de-
scent; a common ancestor.
COMMUNISM. A system of social organization
in which goods are- held in common, the opposite
of the system of private property; communalism,
any theory or system of social organization in-
volving common ownership of agents of produc-
tion of industry, the latter of which theories is re-
ferred to in the popular, use of the word "com-
munism" while the scientific usage sometimes con-
forms to the first alone and sometimes alternates
between the first and second; also the principles
and theories of the Communist Party, especially
in Soviet Russia. Feinglass v. Reinecke, D.C.Ill.,
48 F.Supp. 438, 440. ,
Any theory or system of social organization involving
common ownership of the agents of production, and some
approach to equality in the distribution of the products of
industry. Webster, Diet. A system by which the state
controls the means of production and the distribution and
consumption of industrial products. Cent.Dict.
An equality of distribution of the physical means of life
and enjoyment as a transition to a still higher standard of
justice that all should work according to their capacity and
receive according to their wants. 1 Mill, Pol.Ec. 248.
COMMUNIST. A supporter of the Paris Com-
mune; in 1871 Communard; , a member of the
Communist Party in any country, especially Soviet
Russia; one who belives in communism. Feing-
lass v. Reinecke, D.C.I11., 48 F.Supp. 438, 440, 441.
Communist International. See Third Interna-
tional.
COMMUNIST PARTY. A semipolitical party of
recent t years representing the Socialist radical
wing and holding of the tenets and beliefs of
Communism. It has quite generally seceded from
the Socialists, organizing in many countries but
chiefly in Russia. Garriga v. Richfield, 20 N.Y.S.
2d 544, 547, 174 Misc. 315.
COMMUNITAS REGNI ANGLIZE. The general
assembly of the kingdom of England. One of the
ancient names of the English parliament. 1 Bl.
Comm. 148. See, also, Commune Concilium Regni.
COMMUNITY. Neighborhood; vicinity, synony-
mous with locality. Conley v. Valley Motor Tran-
sit Co., C.C.A.Ohio, 139 F.2d 692, 693. People who
reside in a locality in more or less proximity.
State ex inf. Thompson ex rel. Kenneppe v. Scott,
304 Mo. 664, 264 S.W. 369, 370. A society or body
of people living in the same place, under the same
laws and regulations, who have common rights,
privileges, or interests. In re Huss, 126 N.Y. 537,
27 N.E. 784, 12 L.R.A. 620; Sacred Heart Academy
of Galveston v. Karsch, 122 S.W.2d 416, 417, 173
Tenn. 618.
It connotes a congeries of common interests arising from
associations—social,  business, religious, governmental,
scholastic, recreational. Lukens Steel Co. v. Perkins, 107
F.2d 627, 631, 70 App.D.C. 354.
The term "community," as used in a statute proNlding
that communities may be incorporated for the purpose of
supplying inhabitants with water, should be construed to
include all the inhabitants of a district having a community
of interest in obtaining for themselves in common a water
supply for domestic use. Hamilton v. Rudeen, 112 Or.
268, 224 P. 92, 93.
In connection with the rule requiring, for purposes of
impeachment, a knowledge of the character of the witness
in the community or neighborhood in which he resides, the
term "community" means, generally, where the person is
well known and has established a reputation. Craven v.
State, 22 Ala.App. 39, 111 So. 767, 769.
Civil Law
A corporation or body politic. Dig. 3, 4.
French Law
A species of partnership which a man and a
woman contract when they are lawfully married
to each other. See, also, Community Property,
infra.
Conventional community is that which is form-
ed by express agreement in the contract of mar-
riage.
By this contract the legal community which would other-
wise subsist may be modified as to the proportions which
each shall take, and as to the things which shall com-
pose it.
Legal community is that which takes place by
virtue of the contract of marriage itself.
The French system of community property was known
as the dotal system, and the Spanish as the ganancial sys-
tem. The conquest of Mexico by the Spaniards and their
acquisition of the Florida territory resulted in the intro-
duction on American soil of the Spanish system, which
now prevails, usually in a somewhat modified form, in
Texas, California, Nevada, Arizona, Washington, Idaho,
New Mexico, Porto Rico, and the Philippines. Ballinger,
Com.Property, § 6; Chavez v. McKnight, 1 N.M. 147. The
Louisiana Code has, with slight modifications, adopted the
dotal system of the Code Nepoleon as regards the separate
rights of husband and wife, but as to their common prop-
erty, it retained the essential features of the Spanish
ganancial system.
COMMUNITY ACCOUNT. A bank account con-
sisting of separate and community funds com-
mingled in such manner that neither can be dis-
tinguished from the other. Smith V. Buss, 135
Tex. 566, 144 S.W.2d 529, 532.
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COMPACT
CO3DIUNITY DEBT. One chargeable to the corn-
munity
•
 (of husband and wife) rather than to ei-
ther of the parties individually. Calhoun v. Leary,
6 Wash. 17, 32 P. 1070.
COMMUNITY HOUSE. A house occupied by two
or more families. Fox v. Sumerson, 338 Pa. 545,
13 A.2d 1, 2.
COMMUNITY OF INTEREST. Term as applied
to relation of joint adventure means interest com-
mon to both or all parties, that is, mixture or
identity of interest in venture wherein each and
all are .reciprocally concerned and from which
each and all derive material benefit and sustain
a mutual responsibility. Carboneau v. Peterson,
1 Wash.2d 347, 95 P.2d 1043, 1055.
COMMUNITY OF PROFITS. This term, as used
in the definition of a partnership, (to which a com-
munity of profits is essential,) means a proprietor-
ship in them as distinguished from a personal
claim upon the other associate, a property right
in them from the start in one associate as much
as in the other. Moore v. Williams, 26 Tex.Civ.
App. 142, 62 S.W. 977.
COMMUNITY PROPERTY. Property owned in
common by a husband and wife as a kind of mari-
tal partnership. Coleman v. Coleman, Tex.Civ.
App., 293 S.W. 695, 699. Property acquired by
husband and wife, or either, during marriage,
when not acquired as the separate property of
either. In re Lux's Estate, 114 Cal. 73, 45 P. 1023;
Mitchell v. Mitchell, 80 Tex. 101, 15 S.W. 705;
Ames v. Hubby, 49 Tex. 705; Holyoke v. Jackson,
3 Wash.T. 235, 3 P. 841; Civ. Code Cal. § 687.
This partnership or community consists of the profits of
all the effects of which the husband has the administration
and enjoyment, either of right or in fact, of the produce of
the reciprocal industry and labor of both husband and wife,
and of the estates which they may acquire during the
marriage, either by donations made jointly to them both, or
by purchase, or in any other similar way, even although
the purchase be only in the name of one of the two, and
not of both, because in that case the period of time when
the purchase is made is alone attended to, and not the
person who made the purchase. Rev.Civ.Code La. arts.
2402, 2404; Brown v. Cobb, 10 La. 172; Barnes v. Thomp-
son, 154 La. 1036, 98 So. 657, 658.
COMMUTATION. Alteration; change; substitu-
tion; the act of substituting one thing for an-
other. Steinacher v. Swanson, 131 Neb. 439, 268
N.W. 317,. 321.
Criminal Law
The change of a punishment from a greater to
a less; as from hanging to imprisonment. Peo-
ple v. Jenkins, 325 Ill. 372, 156 N.E. 290, 292. Fehl
v. Martin, 155 Or. 455, 64 P.2d 631, 632.
Although both a pardon and a commutation are granted
by the sovereign power; Goben v. State, 32 Okl,Cr. 237,
240 P. 1085, 1087; a "commutation" means merely a change
of punishment, while a "pardon" avoids or terminates pun-
ishment for crime; Lupo v. Zerbest, C.C.A.Ga., 92 F.2d
362, 364. A pardon bears no relation to the term of pun-
ishment, and must be accepted or it is nugatory ; commu-
tation removes no stain, restores no civil privilege, and may-
be effected without the consent and against the will of the
prisoner. In re Charles, 115 Kan. 323, 222 P. 606, 608;
Chapman v. Scott, D.C.Conn., 10 F.2d 156, 159.
"Commutation" is also distinguishable from a "reprieve"
or "respite," meaning simply the withholding of a sen-
tence for an interval of time, a postponement of execution,
or a temporary suspension of execution. State v. District
Court of Eighteenth Judicial Dist. in and for Maine
County, 73 Mont. 541, 237 P. 525, 527.
Civil Law
The conversion of the right to receive a variable
or periodical payment into the right to receive a
fixed or gross payment; a substitution of one sort
of payment for another, or of money payment
in lieu of a performance of a compulsory duty or
labor. Commutation may be effected by private
agreement, but it is usually done under a statute.
Steinacher v. Swanson, 131 Neb. 439, 268 N.W.
317, 321.
COMMUTATION OF TAXES. Payment of a des-
ignated lump sum (permanent or annual) for the
privilege of exemption from taxes, or the settle-
ment in advance of a specific sum in lieu of an ad
valorem tax. Cotton Mfg. Co. v. New Orleans, 31
La.Arrn. 440.
COMMUTATION OF TITHES. Signifies the con-
version of tithes into a fixed payment in money.
COMMUTATION TICKET. A railroad ticket giv-
ing the holder the right to travel at a certain rate
for a limited number of trips (or for an unlimited
number within a certain period of time) for a less
amount than would be paid in the aggregate for
so many separate trips. Interstate Commerce
Com'n v. Baltimore & 0. R. Co., C.C.Ohio, 43 F.
56.
COMMUTATIVE CONTRACT. In civil law. One
in which each of the contracting parties gives and
receives an equivalent; e. g., the contract of sale.
Pothier, Obl. n. 13; State ex rel. Waterman v. J.
S. Waterman and Co., 178 La. 340, 151 So. 422,
426. See Contract.
COMMUTATIVE JUSTICE, See Justice.
COMPACT, n. An agreement; a contract. Green
v. Biddle, 8 Wheat. 1, 92, 5 L.Ed. 547. Usually
applied to conventions between nations or sover-
eign states.
A contract between parties, which creates obligations and
rights capable of being enforced, and contemplated as such
between the parties, in their distinct and independent char-
acters. Story, Const. b. 3, c. 3; Rutherf.Inst. b. 2, c.
6, § 1.
A mutual consent of parties concerned respecting some
property or right that is the object of the stipulation, or
something that is to be done or forborne. Chesapeake &
0. Canal Co. v. Baltimore & 0. R. Co., 4 Gill & J., Md., 1.
COMPACT, adj. Closely or firmly united or pack-
ed, as the particles of solid bodies; firm; solid;
dense; as a compact texture in rocks; also, lying
in a narrow compass or arranged so as to econ-
omize space; having a small surface or border
in proportion to contents or bulk; close; as, a
compact estate; a compact'order or formation of
troops. Wails v. Board of Commissioners of Ok-
mulgee County, 156 Okl. 165, 9 P.2d 946, 948. Con-
centrated, or near to. Webster v. Toulon Tp. High
School Dist. No. 4, 313 Ill. 541, 145 N.E. 118, 121;
State v. Tindell, 210 P. 619, 621, 112 Kan. 256.
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COMPACT
COMPACT SCHOOL DISTRICT. One so closely
united and so nearly adjacent to the school build-
ing that all the students residing in the district
may conveniently travel from their homes to the
school building and return the same day in a rea-
sonable length of time and with a reasonable de-
gree of comfort. People ex rel. Tudor v. Vance,
29 N.E.2d 673, 675, 374 Iii. 415; People ex rel.
Frailey v. McNeely, 32 N.E.2d 608, 610, 376 Ill. 64.
COMPANAGE. All kinds of food, except bread
and drink. Spelman.
COMPANIES CLAUSES CONSOLIDATION ACT.
An English statute, (8 Vict. c. 16,) passed in 1845,
which consolidated the clauses of previous laws
still remaining in force on the subject of public
companies. It is considered as incorporated into
all subsequent acts authorizing the execution of
undertakings of a public nature by companies,
unless expressly excepted by such later acts. Its
purpose is declared by the preamble to be to avoid
repeating provisions as to the constitution and
management of the companies, and to secure
greater uniformity in such provisions. Wharton.
COMPANION OF THE GARTER. One of the
knights of the Order of the Garter.
COMPANIONS. In French law. A general term,
comprehending all persons who compose the crew
of a ship or vessel. Poth. Mar. Cont. no. 163.
COMPANULATE. This term, used to describe
the shape of the cover of a lunch-box containing
a thermos bottle, means bell-shaped. American
Can Co. v. Goldee Mfg. Co., D.C.N.Y., 290 F. 523,
527,
COMPANY. A society or association of persons,
in considerable number, interested in a common
object, and uniting themselves for the prosecution
usually of some commercial or industrial under-
taking, or other legitimate business. Mills v.
State, 23 Tex. 303; Smith v. Janesville, 52 Wis.
680, 9 N.W. 789.
The proper signification of the word "company," when
applied to persons engaged in trade, denotes those united
for the same purpose or in a joint concern. It is so com-
monly used in this sense, or as indicating a partnership,
that few persons accustomed to purchase goods at shops,
where they are sold by retail, would misapprehend that
such was its meaning. Palmer v. Pinkham, 33 Me. 32.
The term is not identical with "partnership," although
every unincorporated society is, in its legal relations, a
partnership. In common use a distinction is made, the
name "partnership" being reserved for business associa-
tions of a limited number of persons (usually not more
than four or five) trading under a name composed of their
individual names set out in succession; while "company"
is appropriated as the designation of a society comprising
a larger number of persons, with greater capital, and
engaged in more extensive enterprises, and trading under
a title not disclosing the names of the individuals. Attor-
ney General v. Mercantile Marine Ins. Co., 121 Mass. 525.
Sometimes the word is used to represent those members
of a partnership whose names do not appear in the name
of the firm. See 12 Toullier, 97.
A number of persons united for performing or carrying
on anything jointly. In re Tidewater Coal Exchange,
C.C.A.N.Y., 280 F. 638, 643.
Thus, the term is not necessarily limited to a trading or
commercial body, but may include an unincorporated I
organization to promote fraternity among its members and
provide mutual aid and protection through the payment of
death benefits. In re Order of Sparta, D.C.Pa., 238 F. 437.
"Company" is a generic and comprehensive word, which
may include individuals, partnerships, and corporations.
Asbury v. Town of Albemarle, 162 N.C. 247, 78 S.E. 146,
148, 44 L.R.A.,N.S., 1189; Ellerson v. Grove, C.C.A.N.C., 44
F.2d 493, 497. But not a municipality. City of Los An-
geles, Cal., v. Eighth Judicial District Court, 58 Nev. 1, 67
P.2d 1019, 1023.
The word is sometimes applicable to a single individual.
Harger v. Harger, 144 Ark. 375, 222 S.W. 736, 739. But
compare Wood v. Wood, 78 Or. 181, 151 P. 969, 970, L.R.A.
1916C, 251, Ann.Cas.1918A, 226.
Joint Stock Company
An association of individuals for purposes of
profit, possessing a common capital contributed
by the members composing it, such capital being
commonly divided into shares of which each mem-
ber possesses one or more, and which are trans-
ferable by the owner. Shelf. Jt. St. Co. 1. One
having a joint stock or capital, which is divided
into numerous transferable shares, or consists of
transferable stock. Lindl. Partn. 6. A partner-
ship whereof the capital is divided, or agreed to
be divided, into shares so as to be transferable
without the express consent of the co-partners.
Pars. Part. § 435. A quasi partnership, invested
by statutes in England and many of the states
with some of the privileges of a corporation. See
Pennsylvania v. Mining Co., 10 Wall. 556, 19 L.
Ed. 998; L.R. 4 Eq. 695. It lies midway between
a corporation and a copartnership. Rocky Moun-
tain Stud Farm Co. v. Lunt, 46 Utah, 299, 151 P.
521, 527.
A "joint-stock company" is an entirely different organi-
zation from a "corporation," although it has many of the
same characteristics and is often not improperly called a
quasi corporation, especially under particular statutes, but
in Kentucky it is still what it was at common law, namely,
a hybrid midway between a corporation and a partnership,
that is, it had directors and officers, articles of association,
a common capital divided into shares which represented the
interests of the members and are transferable without the
consent of the other members so that the death of a mem-
ber does not dissolve the company—but, on the other hand,
each member was liable for the debts of the concern, so
that such company had characteristics of both a corpora-
tion and a partnership. Roller v. Madison, 172 Ky. 693, 189
S. W. 914, 915.
Limited Company
A company in which the liability of each share-
holder is limited by the number of shares he has
taken, so that he cannot be called on to contribute
beyond the amount of his shares. In England, the
memorandum of association of such company may
provide that the liability of the directors, mana-
ger, or managing director thereof shall be unlimit-
ed. 30 & 31 Vict. c. 131; 1 Lindl. Partn. 383;
Mozley & Whitley.
Public Company
In English law. A business corporation; a so-
ciety of persons joined together for carrying on
some commercial or industrial undertaking.
COMPARABLE ACCOMMODATION. Within the
rule that it is the rent generally prevailing on the
freeze date for comparable accommodations in a
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COMPENSABLE
defense-rental area that determines rent that may
be charged, two accommodations are "compara-
ble" if they are sufficiently similar to be regarded
by an expert as of substantially equal rental value
or if they are sufficiently similar so that an ex-
pert taking as a standard the rent prevailing for
one and making allowances for such differences
as would be reflected in rental value would be
able to determine the appropriate corresponding
rent for the other. Sirianni v. Bowles, Em.App.,
148 F.2d 343, 344.
COMPARATIO LITERARUM. In the civil law.
Comparison of writings, or handwritings. A mode
of proof allowed in certain cases.
COMPARATIVE. Proceeding by the method of
comparison; founded on comparison; estimated
by comparison.
COMPARATIVE INTERPRETATION. That
method of interpretation which seeks to arrive
at the meaning of a statute or other writing by
comparing its several parts and also by comparing
it as a whole with other like documents proceeding
from the same source and referring to the same
general subject. Glenn v. York County, 6 Rich.
(S.C.) 412.
COMPARATIVE JURISPRUDENCE. The study
of the principles of legal science by the compari-
son of various systems of law.
COMPARATIVE NEGLIGENCE. That doctrine
in the law of negligence by which the negligence
of the parties is compared, in the degrees of
"slight," "ordinary," and "gross" negligence, and
a recovery permitted, notwithstanding the con-
tributory negligence of the plaintiff, when the
negligence of the plaintiff is slight and the neg-
ligence of the defendant gross, but refused when
the plaintiff has been guilty of a want of ordinary
care, thereby contributing to his injury, or when
the negligence of the defendant is not gross, but
only ordinary or slight, when compared, under
the circumstances of the case, with the contribu-
tory negligence of the plaintiff. 3 Amer. & Eng.
Enc. Law, 367. St. Louis & S. F. R. Co. v. Elsing,
37 Okl. 333, 132 P. 483, 486.
Where negligence by both parties is concurrent and con-
tributes to injury, recovery is not barred under such doc-
trine, but plaintiff's damages are diminished proportion-
ately, provided his fault is less than defendant's, and that,
by exercise of ordinary care, he could not have avoided
consequences of defendant's negligence after it was or
should have been apparent. Rogers v. McKinley, 48
Ga.App. 262, 172 S.E. 662, 664.
COMPARISON OF HANDWRITING. A compari-
son by the juxtaposition of two writings, in order,
by such comparison, to ascertain whether both
were written by the same person.
A method of proof resorted to where the genu-
ineness of a written document is disputed; it con-
sists in comparing the handwriting of the disput-
ed paper with that of another instrument which
is proved or admitted to be in the writing of the
party sought to be charged, in order to infer, from
their identity or similarity in this respect, that
they are the work of the same hand. Johnson v.
Insurance Co., 105 Iowa, 273, 75 N.W. 101,
Black's Law Dictionary Revised 4th Ed.-23
COMPARATIVE RECTITUDE. Doctrine wherein
relief by divorce is granted to the party least in
fault when both have shown grounds for divorce.
Blankenship v. Blankenship, 51 Nev. 356, 276 P.
9, 10, 63 A.L.R. 1127.
Doctrine does not apply in Nevada.
COMPASCUUM. Belonging to commonage Jus
conipascuum, the right of common of pasture.
COMPASS, THE MARINER'S. An instrument
used by mariners to point out the course of a ship
at sea. It consists of a magnetized steel bar call-
ed the "needle," attached to the under side of a
card, upon which are drawn the points of the com-
pass, and supported by a fine pin, upon which it
turns freely in a horizontal plane.
COMPASSING. Imagining or contriving, or plot-
ting. In English law, "compassing the king's
death" is treason. 4 Bl.Comm. 76.
COMPATERNITAS. In the canon law. A kind of
spiritual relationship contracted by baptism.
COMPATERNITY. Spiritual affinity, contracted
by sponsorship in baptism.
COMPATIBILITY. As applied to offices, such re-
lation and consistency between the duties of two
offices that they may be held and filled by one
person.
COMPEAR. In Scotch law. To appear.
COMPEARANCE. In Scotch practice. Appear-
ance; an appearance made for a defendant; an
appearance by counsel. Bell.
COMPEL. To force. Temple Lumber Co. v. Liv-
ing, Tex.Civ.App., 289 S.W. 746, 749. To oblige.
Texas Electric Ry. v. Jones, Tex.Civ.App., 231 S.
W. 823, 824.
In an allegation that plaintiff was compelled to pay
license taxes, the word "compel" does not necessarily
import elements of compulsory payment. Singer Sewing
Mach. Co. v. Teasley, 198 Ala. 673, 73 So. 969, 971; Sinnott
v. District Court in and for Clarke County, 201 Iowa, 292,
207 N.W. 129, 131.
As to compelling a person to testify against himself, see
State v. Backstrom, 117 Kan. 111, 230 P. 306, 308: U. S.
v. Cooper, D.C.Iowa, 288 F. 604, 609; U. S. v. Kailas, D.C.
Wash., 272 F. 742, 751; U. S. v. Monia, Ill., 317 U.S. 424,
63 S.Ct. 409, 411, 87 L. Ed. 376.
COMPELLATIVUS. An adversary or accuser.
Compendia sunt dispendia. Co. Litt. 305. Abbre-
viations (or abridgments) are detriments.
COMPENDIUM. An abridgment, synopsis, or di-
gest.
COMPENSABLE DEATH, Within Workmen's
Compensation Acts is one which results to em-
ployee from injury by accident arising out of
and in course of employment. Slade v. Willis
Hosiery Mills, 209 N.C. 823, 184 S.E. 844, 845.
COMPENSABLE INJURY. Within Workmen's
Compensation Acts is an injury for which com-
pensation is payable, and date of such an injury is
not time of the accident or occurrence causing
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COMPENSACION
injury, but the time when the right to compensa-
tion accrues. S. G. Taylor Chain Co. v. Marianow-
ski, 182 N.E. 584, 585, 95 Ind.App. 120. Muehl-
hausen Spring Co. v. Szewczyk, 104 Ind.App. 161,
8 N.E.2d 104, 106.
COMPENSACION. In Spanish law. Compensa-
tion; set-off. The extinction of a debt by another
debt of equal dignity between persons who have
mutual claims on each other.
COMPENSATIO. Lat. In the civil law. Com-
pensation, or set-off. A proceeding resembling a
set-off in the common law, being a claim on the
part of the defendant to have an amount due to
him from the plaintiff deducted from his demand.
Dig. 16, 2; Inst. 4, 6, 30, 39; 3 Bl.Comm. 305.
COMPENSATIO CRIMINIS. (Set-off of crime or
guilt.) In practice. The compensation or set-off
of one crime against another; the plea of re-
crimination in a suit for a divorce; that is, that
the complainant is guilty of the same kind of of-
fense with which the respondent is charged. See
1 Hagg.Cons. 144; 1 Hagg.Eccl. 714; Wood v.
Wood, 2 Paige, Ch. (N.Y.) 108, 2 D. & B. 64; Bi-
shop, Marr. & D. §§ 393, 394.
COMPENSATION. Indemnification; payment of
damages; making amends; making whole; giv-
ing an equivalent or substitute of equal value;
that which is necessary to restore an injured par-
ty to his former position; consideration or price
of a privilege purchased; equivalent in money
for a loss sustained; equivalent given for prop-
erty taken or for an injury done to another; giv-
ing back an equivalent in either money which is
but the measure of value, or in actual value other-
wise conferred; recompense in value; recompense
or reward for some loss, injury, or service, es-
pecially when it is given by statute; remunera-
tion for the injury directly and proximately caus-
ed by a breach of contract or duty; remunera-
tion or satisfaction for injury or damage of every
description; that return which is given for some-
thing else. An act which a court orders to be
done, or money which a court or other tribunal
orders to be paid, by a person whose acts or omis-
sions have caused loss or injury to another, in
order that thereby the person damnified may re-
ceive equal value for his loss, or be made whole
in respect of his injury. Railroad Co. v. Denman,
10 Minn. 280 (Gil. 208) ; Hughson Condensed Milk
Co. v. State Board of Equalization, 23 Cal.App.2d
281, 73 P.2d 290, 292. For "Extra Compensation"
and "Fair and Reasonable Compensation", see
these titles.
"Compensation" is a misleading term, and is used merely
for lack of a word more nearly expressing the thought of
the law which permits recovery for an imponderable and
intangible thing for which there is no money equivalent.
Stutsman v. Des Moines City Ry. Co., 180 Iowa, 524, 163
N.W. 580, 585.
The word "compensation," as used in Workmen's Com-
pensation Acts, means the money relief afforded an injured
employee or his dependents according to the scale estab-
lished and for the persons designated in the act, and not
the compensatory damages recoverable in an action at law
for a wrong done or a contract broken. Christensen v.
Morse Dry Dock & Repair Co., 214 N.Y.S. 732, 740, 216
App. Div. 274.
As used in Workmen's Compensation Acts, "compensa-
tion" is distinguishable from "benefits" ; the former apply-
ing to an allowance where the employee is only injured,
and the latter applying in case of death. Terry v. General
Electric Co., 232 N.Y. 120, 133 N.E. 373, 374. The term
"compensation" may include ftlneral benefits. Donoho v.
Atlantic Basin Iron Works, 206 N.Y.S. 494, 495, 210 App.
Div. 535. But see Barber v. Estey Organ Co., 100 Vt. 72,
135 A. 1, 2; Industrial Commission v. Hammond, 77 Colo.
414, 236 P. 1006, 1008.
Also that equivalent in money which is paid to
the owners and occupiers of lands taken or injur-
iously affected by the exercise of the power of
eminent domain. Louisiana and F. Plank Road
Co. v. Pickett, 25 Mo. 535, 539; Oregon Short Line
R. Co. v. Fox, 28 Utah 311, 78 P. 800, 801.
In the constitutional provision for "just compensation"
for property taken under the power of eminent domain,
this term means a payment in money. Any benefit to the
remaining property of the owner, arising from public
works for which a part has been taken, cannot be consid-
ered as compensation. Railroad Co. v. Burkett, 42 Ala. 83.
As compared with consideration and damages, compen-
sation, in its most careful use, seems to be between them.
Consideration is amends for something given by consent, or
by the owner's choice. Damages is amends exacted from a
wrong-doer for a tort. Compensation is amends for some-
thing which was taken without the owner's choice, yet
without commission of a tort. Thus, one should say, con-
sideration for land sold; compensation for land taken for
a railway; damages for a trespass. But such distinctions
are not uniform. Land damages is a common expression
for compensation for lands taken for public use. Abbott.
"Compensation" is distinguishable from "damages,"
inasmuch as the former may mean the sum which will
remunerate an owner for land actually taken, while the
latter signifies an allowance made for injury to the residue:
but such distinction is not ordinarily observed. Faulkner
v. City of Nashville, 154 Tenn. 145, 285 S.W. 39, 43.
The remuneration or wages given to an em-
ployee or, especially, to an officer. Salary, pay,
or emolument. Christopherson v. Reeves, 44 S.D. ‘
634, 184 N.W. 1015, 1019; Higgins v. Glenn, 65
Utah, 406, 237 P. 513, 515.
The ordinary meaning of the term "compensation," as
applied to officers, is remuneration, in whatever form it
may be given, whether it be salaries and fees, or both
combined. State v. Bland, 91 Kan. 160, 136 P. 947, 949. It
is broad enough to include other remuneration for official
services; State ex rel. Emmons v. Farmer, 271 Mo. 306,
196 S. W. 1106, 1108; such as mileage or traveling expenses ;
Leckenby v. Post Printing & Publishing Co., 65 Colo. 443,
176 P. 490, 492; and also the repayment of amounts
expended. Compare, however, People v. Chapman, 225
N.Y. 700, 122 N.E. 240; McCoy v. Handlin, 35 S.D. 487, 153
N.W. 361, 371, L.R.A.1915E, 858, Ann.Cas.1917A, 1046.
But the term is not necessarily synonymous with "sal-
ary." See People v. Wemple, 115 N.Y. 302, 22 N.E. 272;
Com. v. Carter, 21 Ky.L.Rep. 1509, 55 S.W. 701; Crawford
County v. Lindsay, 11 Il1.App. 261; Kilgore v. People, 76
Ill. 548.
A "reasonable compensation" is that which will fairly
compensate the laborer when the character of the work and
the effectiveness and ability entering into the service are
considered. Chapman v. A. H. Averill Machinery Co., 28
Idaho, 121, 152 P. 573, 575.
Compensation is not synonymous with "pension," which
is ordinarily a gratuity from the government or some of
its subordinate agencies in recognition of, but not in pay-
ment for, past services. Dickey v. Jackson, 181 Iowa 1155,
165 N.W. 387, 389.
The Civil, Scotch, and French Law
Recoupment; set-off. The meeting of two debts
due by two parties, where the debtor in the one
debt is the creditor in the other; that is to say,
where one person is both debtor and creditor to
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COMPETITION
another, and therefore, to the extent of what is
due to him, claims allowance out of the sum that
he is due. Bell; 1 Kames, Eq. 395, 396.
In order for "compensation" to take place, the two debts
must exist simultaneously and have as their object the
payment of a sum of money or a certain quantity of con-
sumable things of one and the same kind, and the debts
must be equally liquidated and demandable. Blanchard v.
Bank of Morgan City & Trust Co., La.App., 185 So. 120,
122.
Compensation is of three kinds,-legal, or by operation
of law; compensation by way of exception; and by recon-
vention. Stewart v. Harper, 16 La.Ann. 181; Blanchard v.
Cole, 8 La. 158; 8 Dig. 16, 2; Code, 4, 31; Inst. 4, 6, 30;
Burge, Suret. b. 2, c. 6, p. 181; La.Civ. Code, arts. 2203-
2208 (Civ.Code, arts. 2207-2211).
Criminal Law
Recrimination. See Compensatio Criminis; Re-
crimination.
"Commutation" and "compensation" in statutes provid-
ing for reduction of sentence for good behavior are used
interchangeably. Ryan v. Lawes, 278 N.Y.S. 608, 154 Misc.
572.
COMPENSATION PERIOD. The period fixed by
the Workmen's Compensation Act during which
the injured party is to receive compensation, un-
less the board reduces the period by correspond-
ingly increasing the amount of weekly compensa-
tion. Southern Casualty Co. v. Boykin, Tex.Civ.
App., 298 S.W. 639, 640.
COMPENSATORY DAMAGES. See Damages.
COMPERENDINATIO. In the Roman law. The
adjournment of a cause, in order to hear the par-
ties or their advocates a second time; a second
hearing of the parties to a cause. Calvin.
COMPERTORIUM. In the civil law. A judicial
inquest made by delegates or commissioners to
find out and relate the truth of a cause. Wharton.
COMPERUIT AD DIEM. A plea in bar of an ac-
tion of debt on a bail bond that the defendant ap-
peared at the day required. For forms, see 5
Wentworth 470; Lilly, Entr. 114; 2 Chit. Pl. 527.
See, generally, Comyns, Dig. Pleader (2 W. 31);
7 B. & C. 478.
COMPETE. To contend emulously, to strive for
the position for which another is striving, to con-
tend in rivalry. People v. Chew, 67 Colo. 394,
179 P. 812, 813; Commonwealth v. Shenandoah
River Light & Power Corporation, 135 Va. 47, 115
S.E. 695, 698. See Competition.
COMPETENCY. In the law of evidence. The
presence of those characteristics, or the absence
of those disabilities, which render a witness legal-
ly fit and qualified to give testimony in a court
of justice;-applied, in the same sense, to docu-
ments or other written evidence.
Competency differs from credibility. The former is a
question which arises before considering the evidence giv-
en by the witness; the latter concerns the degree of
credit to be given to his story. The former denotes the
personal qualification of the witness; the latter his vera-
city. A witness may be competent, and yet give incredible
testimony; he may be incompetent, and yet his evidence,
if received, be perfectly credible. Competency is for the
court; credibility for the jury. Yet in some cases the
term "credible" is used as an equivalent for "competent."
Thus, in a statute relating to the execution of wills, the
term "credible witness" is held"to mean one who is entitled
to be examined and to give evidence in a court of justice;
not necessarily one who is personally worthy of belief, but
one who is not disqualified by imbecility, interest, crime,
or other cause. 1 Jarm.Wills, 124; Smith v. Jones, 68 Vt.
132, 34 A. 424; Corn. v. Holmes, 127 Mass. 424, 34 Am.Rep.
391.
In French law. The right in a court to exercise
jurisdiction in a particular case.
COMPETENT. Duly qualified; answering all re-
quirements; having sufficient ability or authority;
possessing the requisite natural or legal qualifica-
tions; able; adequate; suitable; sufficient; cap-
able; legally fit. Levee Dist. v. Jamison, 176 Mo.
557, 75 S.W. 679; In re Fichter's Estate, 279 N.Y.
S. 597, 600, 155 Misc. 399. See, also, Incompeten-
cy.
A testator may be said to be "competent," if he has
mental capacity to understand the nature of his act, to
understand and recollect the nature and situation of his
property and his relations to persons having claims on his
bounty and whose interests are affected by his will.  In
re Smith's Estate, 200 Cal. 152, 252 P. 325, 328.
When generally applied to arbitrators, the term does not
mean "expert." Home Ins. Co. v. Walter, Tex.Civ.App.,
230 S.W. 723, 724.
COMPETENT AND OMITTED. In Scotch prac-
tice. A term applied to a plea which might have
been urged by a party during the dependence of
a cause, but which had been omitted. Bell.
COMPETENT AUTHORITY. As applied to
courts and public officers, this term imports juris-
diction and due legal authority to deal with the
particular matter in question. Mitchel v. U. S., 9
Pet. 735, 9 L.Ed. 283; Charles v. Charles, 41 Minn.
201, 42 N.W. 935.
COMPETENT EVIDENCE. That which the very
nature of the thing to be proven requires, as, the
production of a writing where its contents are the
subject of inquiry. 1 Greenl.Ev. § 2; Hill V. Hill,
216 Ala. 435, 113 So. 306, 308; Goltra v. Pen-
land, 45 Or. 254, 77 P. 129, 133. Also, general-
ly, admissible or relevant, as the opposite of "in-
competent." Ryan v. Town of Bristol, 63 Conn.
261, 27 A. 309, 312.
COMPETENT COURT. A court, either civil or
criminal, having lawful jurisdiction. People ex
rel. Fisher v. Morhous, 49 N.Y.S.2d 110, 116, 183
Misc. 51.
COMPETENT WITNESS. One who is legally
qualified to be heard to testify in a cause. People
v. Compton, 123 Cal. 403, 56 P. 44; Bank of Uvalde,
Tex.Civ.App., 60 S.W.2d 888, 889. See Compe-
tency.
As used in the statute relating to the execution of wills,
the term means a person who, at the time of making the
attestation, could legally testify in court to the facts which
he attests by subscribing his name to the will. In re
Wiese's Estate, 98 Neb. 463, 153 N.W. 556, L.R.A.1915E, 832.
COMPETITION. Rivalry. People ex rel. Broder-
ick v. Goldfogle, 123 Misc. 399, 205 N.Y.S. 870, 877.
The play of contending forces ordinarily engender-
ed by an honest desire for gain. U. S. v. American
Linseed Oil Co., 43 S.Ct. 607, 611, 262 U.S. 371, 67
L.Ed. 1035. The effort of two or more parties,
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COMPETITION
acting independently, to secure the custom of a
third party by the offer of the most favorable
terms. It is the struggle between rivals for the
same trade at the same time; the act of seeking
or endeavoring to gain what another is endeavor-
ing to gain at the same time. Lipson v. Socony
Vacuum Corporation, C.C.A.Mass., 87 F.2d 265, 270.
As used in a statute taxing moneyed capital competing
with national banks, "competition" means a condition of
business rivalry which arises when moneyed capital is de-
voted with reasonable continuity and regularity to opera-
tions having for their primary and characteristic purpose,
as distinguished from some incidental operations or details,
the transaction of some branch of business which may be
carried on by national banks, and it is not necessary that
this employment shall bring capital into competition with
all of such branches. People ex rel. Pratt v. Goldfogle, 242
N.Y. 277, 151 N.E. 452, 461. The term involves the idea
of struggling to obtain the same thing. First Nat. Bank
v. City of Hartford, 187 Wis. 290, 203 N.W. 721, 729. See,
also, First Nat. Bank v. City of Hartford, 47 S.Ct. 462, 466,
273 U.S. 548, 71 L. Ed. 767, 59 A.L.R. 1.
Unity of object with diversity of method Is the essence
of competition. Continental Securities Co. v. Interborough
Rapid Transit Co., D.C.N.Y., 207 F. 467, 470.
Scotch Practice
The contest among creditors claiming on their
respective diligences, or creditors claiming on their
securities. Bell.
Unfair Competition in Trade
See Unfair.
COMPETITIVE CIVIL SERVICE EXAMINA•
TION. Examination which conforms to measures
or standards which are sufficiently objective to be
capable of being challenged and reviewed by other
examiners of equal ability and experience. Fink
v. Finegan, 270 N.Y. 356, 1 N.E.2d 462, 464.
COMPETITIVE BIDDING. Requires that all bid-
ders be placed on a plane of equality, and that
they bid upon the same terms and conditions.
State Highway Commission of Kentucky v. King,
259 Ky. 414, 82 S.W.2d 443.
COMPETITIVE TRAFFIC. Traffic which, as to
any one carrier, originates at a point served also
by another carrier, which other carrier handles
the traffic at equal line-haul rates from origin to
destination. Northern Pac. Ry. Co. v. United
States, D.C.Minn., 41 F.Supp. 439, 441.
COMPETITORS. Persons endeavoring to do the
same thing and each offering to perform the act,
furnish the merchandise, or render the service bet-
ter or cheaper than his rival. Continental Secur-
ities Co. v. Interborough Rapid Transit Co., D.C.
N.Y., 207 F. 467, 470.
COMPILATION. A literary production composed
of the works of others and arranged in a method-
ical manner.
A compilation consists of selected extracts from different
authors; an abridgment is a condensation of the views of
one author. Story v. Holcombe, 4 McLean 306, 314, Fed.
Cas.No.13,497.
COMPILE. To copy from various authors into
one work. Story v. Holcombe, 23 Fed.Cas. 171,
174. See Compilation,
Such a collection of statutes differs from a code in this,
that none of the laws so compiled derives any new force
or undergoes any modification in its relation to other stat-
utes in pari materia from the fact of the compilation, while
a code is a re-enactment of the whole body of the positive
law and is to be read and interpreted as one entire and
homogeneous whole.
COMPILED STATUTES. A collection of the
statutes existing and in force in a given state, all
laws and parts of laws relating to each subject-
matter being brought together under one head,
and the whole arranged systematically in one
book, either under an alphabetical arrangement or
some other plan of classification. Railway Co. v.
State, 31 S.E. 531, 104 Ga. 831; Black, Interp.
Laws, p. 363; Fidelity and Columbia Trust Co. v.
Meek, 294 Ky. 122, 171 S.W.2d 41, 44.
COMPLAINANT. In practice. One who applies
to the courts for legal redress; one who exhibits
a bill of complaint. This is the proper designation
of one suing in equity, though "plaintiff" is often,
used in equity proceedings as well as at law. Ben-
efit Ass'n v. Robinson, 147 Ill. 138, 35 N.E. 168.
One who instigates prosecution or who prefers
accusation against suspected person. State v.
Snyder, 93 N.J.L, 18, 107 A. 167, 168.
COMPLAINT. In civil practice. In those states
having a Code of Civil Procedure, the complaint
is the first or initiatory pleading on the part of
the plaintiff in a civil action. It corresponds to
the declaration in the common-law practice. Code
N.Y. § 141; McMath v. Parsons, 26 Minn. 246, 2
N.W. 703. Its purpose is to give defendant infor-
mation of all material facts on which plaintiff re-
lies to support his demand. Fox v. Cosgriff, 64
Idaho 448, 133 P.2d 930, 932,
The complaint shall contain : (1) The title of the cause,
specifying the name of the court in which the action is
brought, the name of the county in which the trial is re-
quired to be had, and the names of the parties to the ac-
tion, plaintiff and defendant.  (2) A plain and concise
statement of the facts constituting a cause of action, with-
out unnecessary repetition; and each material allegation
shall be distinctly numbered. (3) A demand of the relief
to which the plaintiff supposes himself entitled. If the
recovery of money be demanded, the amount thereof must
be stated. Code N.C.1883, § 233 (C.S. § 506).
Cross-complaint. In code practice. Whenever the de-
fendant seeks affirmative relief against any party, relating
to or depending upon the contract or transaction upon
which the action is brought, or affecting the property to
which the action relates, he may, in addition to his an-
swer, file at the same time, or by permission of the court
subsequently, a cross-complaint.' The cross-complaint must
be served upon the parties affected thereby, and such par-
ties may demur or answer thereto as to the original com-
plaint. Standley v. Insurance Co., 95 Ind. 254; Harrison
v. McCormick, 69 Cal. 616, 11 P. 456; Bank v. Ridpath, 29
Wash. 687, 70 P. 139. This is allowed when a defendant has
a cause of action against a co-defendant, or a person not a
party to the action, and affecting the subject-matter of the
action. The only real difference between a complaint and
a cross-complaint is that the first is filed by the plaintiff
and the second by the defendant. Both contain a state-
ment of the facts, and each demands affirmative relief up-
on the facts stated. The difference between a counter-claim
and a cross-complaint is that in the former the defendant's
cause of action is against the plaintiff; and the latter,
against a co-defendant, or one not a party to the action;
White v. Reagan, 32 Ark. 290.
In criminal law. A charge, preferred before
a magistrate having jurisdiction, that a person
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COMPOSITION
named (or an unknown person) has committed a
specified offense, with an offer to prove the fact,
to the end that a prosecution may be instituted.
It is a technical term, descriptive of proceedings
before a magistrate. Hobbs v. Hill, 157 Mass. 556,
32 N.E. 862; In some instances "complaint" is in-
terchangeable with "information." State v. Staf-
ford, 26 Idaho, 381, 143 P. 528, 530; State v. Rit-
zier, 17 Ohio App. 394, 395. And is often used in-
terchangeably with "affidavit." Hebebrand v.
State, 129 Ohio St. 574, 196 N.E. 412, 415.
COMPLETE, v. To finish; accomplish that which
one starts out to do. Ries v. Williams, 190 Ky.
596, 228 S.W. 40, 41.
COMPLETE, adj. Full; entire; including every
item or element of the thing spoken of, without
omissions or deficiencies; as, a "complete" copy,
record, schedule, or transcript. Bailey v. Martin,
119 Ind. 103, 21 N.E. 346.
Perfect; consummate; not lacking in any ele-
ment or particular; as in the case of a "complete
legal title" to land, which includes the possession,
the right of possession, and the right of property.
Dingey v. Paxton, 60 Miss. 1054; Ehle v. Quacken-
boss, 6 Hill N. Y. 537; Versailles Tp. v. Ulm, 152
Pa.Super. 384, 33 A.2d 265, 267.
COMPLETE AND PERMANENT LOSS OF USE
OF RIGHT ARM. Inability to use in any gainful
activity. Bell & Zoller Mining Co. v. Industrial
Commission, 322 Ill. 395, 153 N.E. 580, 582.
COMPLETE DETERMINATION OF CAUSE. De-
termination of every issue so as to render decree
or judgment res judicata. Consolidated Gas Co.
of New York v. Newton, D.C.N.Y., 256 F. 238, 244.
COMPLETE FRACTURE OF ARM. Breaking of
only one bone in forearm, insufficient. Columbia
Mut. Life Assur. Co. v. Penn, 97 So. 673, 133 Miss.
266.
COMPLETE IN ITSELF. Of a legislative act,
covering entire subject; not amendatory. Minier
v. Burt County, 95 Neb. 473, 145 N.W. 977, 979.
COMPLETE LOSS OF SIGHT. A . destruction of
ability to perceive, distinguish, and recognize ob-
jects to such extent that what remains will not
confer any of benefits of sight or vision to prac-
tical and useful extent. Mulcahey v. Brotherhood
of Ry. Trainmen, 229 Mo.App. 610, 79 S.W.2d 759,
765.
COMPLETE PAYMENT. On a contract, the final
payment. Robinson v. U. S., C.C.A.N.Y., 251 F.
461, 466.
COMPLETED. Finished; nothing substantial re-
maining to be done; state of a thing that has been
created, erected, constructed or done substantially
according to contract. Fox & Co. v. Roman Cath-
olic Bishop of the Diocese of Baker City, 107 Or.
557, 215 P. 178, 179; Taylor Bros. v. Gill, 259 P.
236, 238, 126 Okl. 293, 54 A.L.R. 979; Bayou Meto
Drainage Dist. of Lonoke County v. Ingram, 165
Ark. 318, 264 S.W. 947, 949.
COMPLETED OIL WELL. A well finished or
sunk to the depth necessary to find oil, or to such
a depth as, in the absence of oil, precludes a prob-
ability of finding it at a further depth. Howard v.
Hughes, 294 Mich. 533, 293 N.W. 740, 743.
COMPLETION. The finishing or accomplishing
in full of something theretofore begun; substan-
tial performance of what one has agreed to do;
state in which no essential element is lacking.
Flad v. Murphysboro & S. I. R. Co., C.C.A.Ill.,
283 F. 386, 390.
COMPLICATED. Consisting of many parts or
particulars not easily severable in thought; hard
to understand or explain; involved, intricate, con-
fused. Niemes v. Niemes, 97 Ohio St. 145, 119
N.E. 503, 505.
COMPLICATED FRACTURE. One where flesh
and ligaments get between parts of broken bones,
causing suppuration and preventing union of such
parts. Sang v. City of St. Louis, 262 Mo. 454, 171
S.W. 347, 349.
COMPLICE. One who is united with others in an
ill design; an associate; a confederate; an accom-
plice.
COMPLY. To yield, to accommodate, or to adapt
oneself to, to act in accordance with. Dragwa v.
Federal Labor Union No. 23070, 41 A.2d 32, 36,
136 N.J.Eq. 172.
COMPOS MENTIS. Sound of mind. Having use
and control of one's mental faculties.
COMPOS SUI. Having the use of one's limbs, or
the power of bodily motion. Si fuit ita compos sui
quod itinerare potuit de loco in locum, if he had
so far the use of his limbs as to be able to travel
from place to place. Bract. fol. 14b.
COMPOSED OF. Formed of; consisting of.
Hoskins Mfg. Co. v. General Electric Co., D.C.I11.,
212 F. 422, 428.
COMPOSITE WORK. Within Copyright Act
means work to which a number of authors have
contributed distinguishable parts. Copyright Act
of 1909, § 24, 17 U.S.C.A. § 24. Shapiro, Bernstein
& Co. v. Bryan, C.C.A.N.Y., 123 F.2d 697, 699.
COMPOSITIO MENSURARUM. The ordinance
of measures. The title of an ancient ordinance,
not printed, mentioned in the statute 23 Hen. VIII,
c. 4; establishing a standard of measures. 1 Bl.
Comm. 275.
COMPOSITIO ULNARUM ET PERTICARUM.
The statute of ells and perches. The title of an
English statute establishing a standard of meas-
ures. 1 B1.Comm. 275.
COMPOSITION. An agreement, made upon a
sufficient consideration, between an insolvent or
embarrassed debtor and his creditors, whereby
the latter, for the sake of immediate or sooner
payment, agree to accept a dividend less than the
whole amount of their claims, to be distributed
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COMPOSITION
pro rata, in discharge and satisfaction of the
whole. Bank v. McGeoch, 92 Wis. 286, 66 N.W.
606; Pioneer Minerals Corporation v. Larabic
Bros. Bankers, 99 Mont. 358, 43 P.2d 884, 886.
"Composition" should be distinguished from.
"accord." The latter properly denotes an arrange-
ment between a debtor and a single creditor for a
discharge of the obligation by a part payment or
on different terms. The former designates an ar-
rangement between a debtor and the whole body
of his creditors (or at least a considerable propor-
tion of them) for the liquidation of their claims
by the dividend offered.
Ancient Law
Among the Franks, Goths, Burgundians, and
other barbarous peoples, this was the name given
to a sum of money paid, as satisfaction for a
wrong or personal injury, to the person harmed,
or to his family if he died, by the aggressor. It
was originally made by mutual agreement of the
parties, but afterwards established by law, and
took the place of private physical vengeance.
COMPOSITION CHIPS. In the metal trade,
"composition chips" or "turnings" are chips with-
out aluminum. Ehrlich v. United Smelting &
Aluminum Co., 252 Mass. 12, 147 N.E. 20.
COMPOSITION DEED. An agreement embody-
ing the terms of a composition between a debtor
and his creditors.
COMPOSITION IN BANKRUPTCY. An arrange-
ment between a bankrupt and his creditors,
whereby the amount he can be expected to pay
is liquidated, and he is allowed to retain his as-
sets, upon condition of his making the payments
agreed upon. Fisher Supply Co. v. Northwestern
Gravel Co., 216 Iowa 909, 249 N.W. 664, 666, 667.
The difference between a common-law "composition with
creditors" and a "composition in bankruptcy" is that in a
composition with creditors the creditors voluntarily release
the principal debtor and therefore release co-debtors, while
in the case of a bankruptcy composition the discharge is
by operation of law and not by act of the creditors who
assent to the composition. Barker v. Ackers, 29 Cal.App.2d
162, 84 P.2d 264, 271.
COMPOSITION OF MATTER. In patent law, a
substance composed of two or more different sub-
stances, without regard to form. A mixture or
chemical combination of materials. Jacobs v.
Baker, 7 Wall. 295, 19 L.Ed. 200.
COMPOSITION OF TITHES, OR REAL COM-
POSITION. This arises in English ecclesiastical
law, when an agreement is made between the own-
er of lands and the incumbent of a benefice, with
the consent of the ordinary and the patron, that
the lands shall, for the future, be discharged
from payment of tithes, by reason of some land
or other real recompense given in lieu and satis-
faction thereof. 2 Bl.Comm. 28; 3 Steph.Comm.
129.
COMPOTARIUS. In old English law. A party
accounting. Fleta, lib. 2, c. 71, § 17.
COMPOUND, v. To compromise; to effect a
composition with a creditor; to obtain discharge
from a debt by the payment of a smaller sum.
Bank v. Malheur County, 45 P. 781, 30 Or. 420,
35 L.R.A. 141. To put together as elements, in-
gredients, or parts, to form a whole, to combine,
to unite; to form or make up as a composite
product by combining different elements, ingredi-
ents, or parts, as to combine a mediciiie. Depart.
ment of Treasury of Indiana v. Ridgely, 211 Ind.
9, 4 N.E.2d 557, 561, 108 A.L.R. 1067.
COMPOUND, n. A combination of two or more
elements or things by means of human agency;
an artificial or synthetic product. Monticelli
Bros. v. U. S., 8 Ct.Cust.App. 21, 24.
COMPOUND INTEREST. Interest upon interest,
i. e., when the interest of a sum of money is added
to the principal, and then bears interest, which
thus becomes a sort of secondary principal.
Camp v. Bates, 11 Conn. 487; Woods v. Rankin, 2
Heisk. (Tenn.) 46; U. S. Mortg. Co. v. Sperry, C.
C.Ill., 26 F. 730; American Brake Shoe & Foundry
Co. v. Interborough Rapid Transit Co., D.C.N.Y.,
26 F.Supp. 954, 955.
COMPOUND LARCENY. See Larceny.
COMPOUNDER. In Louisiana. The maker of a
composition, generally called the "amicable com-
pounder."
COMPOUNDING A FELONY. The offense com-
mitted by a person who, having been directly in-
jured by a felony, agrees with the criminal that
he will not prosecute him, on condition of the lat-
ter's making reparation, or on receipt of a reward
or bribe not to prosecute.
The offense of taking a reward for forbearing
to prosecute a felony; as where a party robbed
takes his goods again, or other amends, upon an
agreement not to prosecute. Rieman v. Morri-
son, 106 N.E. 215, 217, 264 Ill. 279.
COMPRA Y VENTA. In Spanish law. Purchase
and sale.
COMPREMESSO. In Italian. The instrument
whereby parties agree to submit to arbitration
a dispute between them. The equivalent of "corn-
promissum" under the Roman Law, the principles
of which have -been carried into the common law
and are to be found in agreements of accord and
satisfaction and compromise and settlement.
Castelli v. Tolibia, 83 N.Y.S.2d 554, 562.
COMPRINT. A surreptitious printing of another
book-seller's copy of a work, to make gain thereby,
which was contrary to common law, and is ille-
gal. Wharton.
COMPRISE. To comprehend; include; contain;
embrace; cover. Hoskins Mfg. Co. v. General
Electric Co., D.C.Ill., 212 F. 422, 428.
COMPRIVIGNI. In the civil law. Children by
a former marriage, (individually called "privigni,"
or "privignce") considered relatively to each other.
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Thus, the son of a husband by a former wife, and
the daughter of a wife by a former husband, are
the comprivigni of each other. Inst. 1, 10, 8.
COMPROMISE. An arrangement arrived at,
either in court or out of court, for settling a dis-
pute upon what appears to . the parties to be equi-
table terms, having regard to the uncertainty they
are in regarding the facts, or the law and the
facts together. Colburn v. Groton, 66 N.H. 151,
28 A. 95, 22 L.R.A. 763; Isaacs v. Wishnick, 136
Minn. 317, 162 N.W. 297; Joyner v. City of Seat-
tle, 144 Wash. 641, 258 P. 479, 481. A settlement
of differences by mutual concessions or an ad-
justment of matters in dispute by mutual conces-
sions. Forker v. Berkes, 111 Ind.App. 92, 38 N.
E.2d 296, 299; In re Cusimano's Will, 22 N.Y.S.2d
677, 680, 681, 174"Misc. 1068.
It is essential to a compromise that there be mutual con-
cessions or yielding of opposing claims. Scott v. Scott,
131 Okl. 144, 268 P. 245, 248; Hutson v. McConnell, 139
Okl. 240, 281 P. 760, 763.
In the civil law. An agreement whereby two
or more persons mutually bind themselves to re-
fer their legal dispute to the decision of a desig-
nated third person, who is termed "umpire" or
"arbitrator." Dig. 4, 8; Mackeld. Rom. Law, §
471.
OFFER OF COMPROMISE. See Offer, n.
COMPROMISE VERDICT. One which is reached
only by the surrender of conscientious convictions
on one material issue by some jurors in return
for a relinquishment of matters in their like set-
tled opinion on another issue, and the result is
one which does not hold the approval of the en-
tire panel. North British & Mercantile Ins. Co.
v. Parnell, 53 Ga.App. 178, 185 S.E. 122, 126.
COMPROMISSARII SUNT JUDICES. Jenk.
Cent. 128. Arbitrators are judges.
COMPROMISSARIUS. In the civil law. An ar-
bitrator.
COMPROMISSUM. A submission to arbitration.
COMPROMISSUM AD SIMILITUDINEM JUDI-
CIORUM REDIGITUR. A compromise is
brought into affinity with judgments. Strong v.
Strong, 9 Cush. (Mass.) 571.
COMPTE ARRRTR. Fr. An account stated in
writing, and acknowledged to be correct on its
face by the party against whom it is stated. Pas-
chal v. Union Bank of Louisiana, 9 La.Ann. 484.
COMPTER. In Scotch law. An accounting par-
ty.
COMPTROLLER. A public officer of a state or
municipal corporation, charged with certain du-
ties in relation to the fiscal affairs of the same,
principally to examine and audit the accounts of
collectors of the public money, to keep records,
and report the financial situation from time to
time. There are also officers bearing this name in
the treasury department of the United States.
Beneficial Loan Soc. of New Orleans v. Straus, La.
App., 148 So. 85, 87.
Comptroller in bankruptcy. An officer in Eng-
land, whose duty it is to receive from the trustee
in each bankruptcy his accounts and periodical
statements showing the proceedings in the bank-
ruptcy, and also to call the trustee to account for
any misfeasance, neglect, or omission in the dis-
charge of his duties. Robs.Bankr. 13; Bankr.Act
1869, § 55.
Comptrollers of the Hanaper. In English law.
Officers of the court of chancery; their offices
were abolished by 5 & 6 Vict. c. 103.
State comptroller. A supervising officer of
revenue in a state government, whose princi-
pal duty is the final auditing and settling of all
claims against the state. State v. Doron, 5 Nev.
413.
COMPULSA. A judicially attested copy of a tes-
timonio. State v. Balli, Tex.Civ.App., 173 S.W.2d
522, 527.
COMPULSION. Constraint; objective necessity;
duress. Forcible inducement to the commission
of an act. Navigation Co. v. Brown, 100 Pa. 346.
The act of compelling or the state of being com-
pelled; the act of driving or urging by force or
by physical or moral constraint; subjection to
force. Fluharty v. Fluharty, Del.Super., 193 A.
838, 840.
The "compulsion" which will excuse a criminal act must
be present, imminent and impending and of such a nature
as to induce a well-grounded apprehension of death or
serious bodily harm. Browning v. State, 31 Ala.App. 137,
13 So.2d 54, 56.
To constitute "compulsion" or "coercion" rendering pay-
ment involuntary, there must be some actual or threatened
exercise of power possessed, or supposedly possessed, by
payee over payer's person or property, from which payer
has no means of immediate relief except by advancing
money. Wake Development Co. v. O'Leary, 118 Cal.App.
131, 4 P.2d 802, 803.
COMPULSORY, n. In ecclesiastical procedure, a
compulsory is a kind of writ to compel the attend-
ance of a witness, to undergo examination. Phil-
lirn. Ecc. Law, 1258.
COMPULSORY, adj. Involuntary; forced; co-
erced by legal process or by force of statute.
COMPULSORY ARBITRATION. That which
takes place where the consent of one of the par-
ties is enforced by statutory provisions. Wood v.
Seattle, 62 P. 135, 23 Wash. 1, 52 L.R.A. 369.
COMPULSORY NONSUIT. An involuntary non-
suit. See Nonsuit.
COMPULSORY PAYMENT. One not made vol-
untarily, but exacted by duress, threats, the en-
forcement of legal process, or unconscionably
taking advantage of another. Singer Sewing
Mach. Co. v. Teasley, 73 So. 969, 971, 198 Ala. 673.
COMPULSORY PROCESS. Process to compel
the attendance in court of a person wanted there
as a witness or otherwise; including not only the
ordinary subpoena, but also a warrant of arrest
or attachment if needed. State v. Nathaniel, 52
La.Ann. 558, 26 So. 1008.
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COMPULSORY
It means such coercive means as the courts, by
virtue of their inherent powers or sanction of the
law, are permitted to employ, Greene v. Ballard,
174 Ky. 808, 192 S.W. 841, 845; and includes right
to have subpoena served, as well as issued (Const.
§ 11). Fugate v. Commonwealth, 202 Ky. 509,
260 S.W. 338, 340.
COMPULSORY SALE OR PURCHASE. A term
sometimes used to characterize the transfer of
title to property under the exercise of the power
of eminent domain. In re Barre Water Co., 62
Vt. 27, 20 A. 109, 9 L.R.A. 195; United States v.
Certain Parcels of Land in City of San Diego, San
Diego County, D.C.Cal., 44 F.Supp: 936, 937.
COMPURGATOR. One of several neighbors of
a person accused of a crime, or charged as a de-
fendant in a civil action, who appeared and swore
that they believed him on his oath. 3 Bl.Comm.
341.
COMPUTING SCALE. A balance having an in-
dicator apparatus so arranged that, within the
limits of weights and prices for which it is con-
trived, one glance at a printed card, which is a
part thereof, shows not only the weight of the
article, but its price at a given rate per pound.
Standard Computing Scale Co. v. Farrell, D.C.N.
Y., 242 F. 87.
COMPUTO. Lat. To compute, reckon, or ac-
count. Used in the phrases insimul cornputas-
sent, "they reckoned together," (see Insimul; )
plene computavit, "he has fully accounted," (see
Plene;) quod computet, "that he account," (see
Quod Computet.)
COMPUTATION. The act of computing, num-
bering, reckoning, or estimating. The account or
estimation of time by rule of law, as distinguished
from any arbitrary construction of the parties.
CowelL
COMPUTUS. A writ to compel a guardian, bail-
iff, receiver, or accountant to yield up his accounts.
It is founded on the statute Westm. 2, c. 12; Reg.
Orig. 135.
COMTE. Fr. A count or earl. In the ancient
French law, the comte was an officer having ju-
risdiction over a particular district or territory,
with functions partly military and partly judicial.
CON. Adj. A slang or cant abbreviation for
confidence, as a con man or a con game. Webster.
CON. Prep. With. Calef v. Calef, 54 Me. 365,
92 Am.Dec. 549.
CON-. A prefix meaning with, together. Web-
ster.
CON BUENA FE. In Spanish law. With (or in)
good faith.
CONACRE. In Irish practice. The payment of
wages in land, the rent being worked out in labor
at a money valuation. Wharton.
CONATUS QUID SIT, NON DEFINITUR IN
JURE. 2 Bulst. 277. What an attempt is, is not
defined in law.
CONCEAL. To hide; secrete; withhold from the
knowledge of others; to withdraw from observa-
tion; to withhold from utterance or declaration;
to cover or keep from sight. Hopper v. Hopkins,
162 Md. 448, 160 A. 166, 167.
The synonyms of conceal are "to hide; disguise, dis-
semble; secrete." To hide is generic; "conceal" is simp-
ly not to make known what we wish to secrete; disguise or
dissemble is to conceal by assuming some false appearance;
to secrete is to hide in some place of secrecy. A man may
conceal facts, disguise his sentiments, dissemble his feel-
ings, or secrete stolen goods. Darneal v. State, 14 Oki.Cr.
540, 174 P. 290, 292, 1 A.L.R. 638.
The word "conceal," according to the best lexicograph-
ers, signifies to withhold or keep secret mental facts from
another's knowledge, as well as to hide or secrete physical
objects from sight or observation. Gerry v. Dunham, 57
Me. 339.
CONCEALED. Not synonymous with "lying in.
wait." If a person conceals himself for the pur-
pose of shooting another unawares, he is lying in
wait; but a person may, while concealed, shoot
another without committing the crime of mur-
der. People v. Miles, 55 Cal. 207.
The term "concealed weapons" means weapons willful-
ly or knowingly covered or kept from sight. Owen v.
State, 31 Ala. 387.
CONCEALERS. In old English law. Such as
find out concealed lands; that is, lands privily
kept from the king by common persons having
nothing to show for them. They are called "a
troublesome, disturbant sort of men; turbulent
persons." Cowell.
CONCEALMENT. A withholding of something
which one knows and which one, in duty, is bound
to reveal. Dolcater v. Manufacturers & Traders
Trust Co., D.C.N.Y., 25 F.Supp. 637, 641; Strauss
v. Dubuque Fire & Marine Ins. Co. of Dubuque,
Iowa, 132 Cal.App. 283, 22 P.2d 582.
The terms "misrepresentation" and "concealment" have
a known and definite meaning in the law of insurance.
Misrepresentation is the statement of something as fact
which is untrue in fact, and which the assured states,
knowing it to be not true, with an intent to deceive the
underwriter, or which he states positively as true, without
knowing it to be true, and which has a tendency to mis-
lead, such fact in either case being material to the risk.
Concealment is the designed and intentional withholding
of any fact material to the risk, which the assured, in
honesty and good faith, ought to communicate to the un-
derwriter; mere silence on the part of the assured, es-
pecially as to some matter of fact which he does not con-
sider it important for the underwriter to know, is not to
be considered as such concealment. If the fact so untruly
stated or purposely suppressed is not material, that is, if
the knowledge or ignorance of it would not naturally in-
fluence the judgment of the underwriter in making the
contract, or in estimating the degree and character of the
risk, or in fixing the rate of the premium, it is not a
"misrepresentation" or "concealment," within the clause
of the conditions annexed to policies. Daniels v. Insurance
Co., 12 Cush. (Mass.). 416, 59 Am.Dec. 192; Sun Ins. Of-
fice, Limited, of London v. Mallick, 160 Md. 71, 153 A. 35,
43.
CONCEALMENT MAY BE BASIS OF ESTOP-
PEL, Lo Bue v. Porazzo, 48 Cal.App.2d 82, 119
P.2d 346, 348. Elements 'of such estoppel are
concealment of material facts with knowledge
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CONCILIUM
thereof, ignorance thereof on part of person to
whom representations are made, or from whom
facts are concealed, intention that such person
shall act thereon, and action induced thereby on
his part. Rhoads v. Rhoads, Mo., 119 S.W.2d
247, 152; Rosser v. Texas Co., 173 Okl. 309, 48 P.
2d 3'27, 330.
The doctrine of "estoppel by concealment and suppres-
sion" applies only where there has been reduction to prac-
tice of invention. Bogoslowsky v. Huse, 142 F.2d 75, 76,
31 C.C.P.A. (Patents) 1034.
CONCEALMENT OF CAUSE OF ACTION. To
constitute it so as to prevent running of limita-
tions, some trick or artifice must be employed to
prevent inquiry or elude investigation, or to mis-
lead and hinder party who has a cause of action
from obtaining information, and acts relied on
must be of an affirmative character and fraudu-
lent. Middleton v. Pruden, 57 Ga.App. 555, 196
S.E. 259, 262.
CONCEDER. Fr. In French 'law. To grant.
See Concession.
CONCEDO. Lat. I grant. A word used in old
Anglo-Saxon grants, and in statutes merchant.
CONCEPTION. The beginning of pregnancy,
(q. v.).
CONCEPTUM. In the civil law. A theft (fur-
tum) was called "conceptum," when the thing
stolen was searched for, and found upon some
person in the presence of witnesses. Inst. 4, 1, 4.
CONCERN. To pertain, relate, or belong to; be
of interest or importance to; have connection
with; to have reference to; to involve; to affect
the interest of. People v. Photocolor Corporation,
281 N.Y.S. 130, 156 Misc. 47.
CONCERNING, CONCERNED. Relating to;
pertaining to; affecting; involving; being sub-
stantially engaged in or taking part in. U. S. v.
Fulkerson, D.C.Cal., 74 F. 631; May v. Brown,
3 Barn. & C. 137; People v. Marty, 59 Cal.App.
503, 210 P. 964, 965.
CONCERT OF EUROPE. The union between the
chief powers of Europe for purposes of concerted
action in matters affecting their mutual interests.
It is sometimes called the Primacy of the Great
Powers. It has existed under various forms from
the time of the Congress of Vienna, in 1815.
CONCERT-ROOM. A place in which musical, as
distinguished from dramatic, performances are
usually given. People ex rel. McShane v. Keller,
161 N.Y.S. 132, 138, 96 Misc. 92.
CONCERTED ACTION (or PLAN). Action that
has been planned, arranged, adjusted, agreed on
and settled between parties acting together pur-
suant to some design or scheme. State v. Jessup
& Moore Paper Co., 4 Boyce (Del.) 248, 88 A. 449,
451; Rock Creek Oil Corporation v. Moore, Tex.
Civ.App., 41 S.W.2d 501, 504.
CONCESSI. Lat. I have granted. At common
law, in a feoffment or estate of inheritance, this
word does not imply a warranty; it only creates
a covenant in a lease for years. Co.Litt. 384a.
Koch v. Hustis, 113 Wis. 599, 87 N.W. 834; Vaugh-
an's Argument in Vaughan 126; Butler's note, Co.
Litt. 384. But see 1 Freem. 339, 414.
CONCESSIMUS. Lat. We have granted. A
term used in conveyances, the effect of which was
to create a joint covenant on the part of the
grantors. 5 Co. 16; Bacon, Abr. Covenant.
CONCESSIO. In old English law. A grant.
One of the old common assurances, or forms of
conveyance.
CONCESSIO PER REGEM FIERI DEBET DE
CERTITUDINE. 9 Coke, 46. A grant by the
king ought to be made from certainty.
CONCESSIO VERSUS CONCEDENTEM LATAM
INTERPRETATIONEM HABERE DEBET. A
grant ought to have a broad interpretation (to
be liberally interpreted) against the grantor.
Jenk. Cent. 279.
CONCESSION. A grant; ordinarily applied to
the grant of specific privileges by a government;
French and Spanish grants in Louisiana. West-
ern M. & M. Co. v. Peytona Coal Co., 8 W.Va. 446.
A voluntary grant, or a yielding to a claim or
demand; rebate; abatement. U. S. v. P. Koenig
Coal Co., D.C.Mich., 1 F.2d 738, 740; Williams v.
Belvedere Hotel Co., 137 Md. 665, 113 A. 335, 337,
14 A.L.R. 622.
CONCESSIT SOLVERE. He granted and agreed
to pay. In English law. An action of debt upon
a simple contract. It lies by custom in the may-
or's court, London, and Bristol city court.
CONCESSOR. In old English law. A grantor.
CONCESSUM. Accorded; conceded. This term,
frequently used in the old reports, signifies that
the court admitted or assented to a point or prop-
osition made on the argument.
CONCESSUS. A grantee.
CONCILIABULUM. A council house.
CONCILIATION. In French law. The formal-
ity to which intending litigants are subjected in
cases brought before the juge de paix. The judge
convenes the parties and endeavors to reconcile
them. Should he not succeed, the case proceeds.
In criminal and commercial cases, the preliminary
of conciliation does not take place. Arg. Fr. Mere.
Law, 552.
CONCILIUM. Lat. A council.
Roman Law
A meeting of a section of the people to consider
and decide matters especially affecting itself.
Launspach, State and Family in Early Rome 70.
Also argument in a cause, or the sitting of the
court to hear argument; a motion for a day .for
the argument of a cause; a day allowed to a de-
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CONCILIUM
Pendant to present his argument; an imparlance.
State ex rel. Stueve v. Reynolds, 266 Mo. 12, 178
S.W. 468, 470.
CONCILIUM ORDINARIUM. In Anglo-Norman
times. An executive and residuary judicial com-
mittee of the Aula Regis, (q. v.).
CONCILIUM REGIS. An ancient English tribun-
al existing during the reigns of Edward L and
Edward II., to which was referred cases of extra-
ordinary difficulty. Co.Litt. 304.
CONCIONATOR. In old records. A common
council man; a freeman called to a legislative
hall or assembly. Cowell.
CONCLUDE. To finish; determine; to estop;
to prevent.
CONCLUDED. Ended; determined; est opped;
prevented from.
CONCLUSION. The end; the termination; the
act of finishing or bringing to a close. The con-
clusion of a declaration or complaint is all that
part which follows the statement of the plaintiff's
cause of action. The conclusion of a plea is its
final clause, in which the defendant either "puts
himself upon the country" (where a material
averment of the declaration is traversed and issue
tendered) or offers a verification, which is proper
where new matter is introduced. State v. Wa-
ters, 1 Mo.App. 7.
Trial Practice
It signifies making the final or concluding ad-
dress to the jury or the court. The act of a man
by which he has confessed a matter or thing which
he can no longer deny.
This is, in general, the privilege of the party who has
to sustain the burden of proof.
CONCLUSION AGAINST THE FORM OF THE
STATUTE. The proper form for the conclusion
of an indictment for an offense created by statute
is the technical phrase "against the form of the
statute in such case made and provided;" or, in
Latin, contra formam statuti.
CONCLUSION OF FACT. An inference drawn
from the subordinate or evidentiary facts. Mae-
der Steel Products Co. v. Zanello, 109 Or. 562, 220
P. 155, 158. Reed v. Woodmen of the World, 94
Mont 374, 22 P.2d 819, 822.
CONCLUSION OF LAW. Within the rule that
pleadings should contain only facts, and not con-
clusions of law, this means a proposition not ar-
rived at by any process of natural reasoning from
a fact or combination of facts stated, but by the
application of the artificial rules of law to the
facts pleaded. Levins v. Rovegno, 71 Cal. 273,
12 P. 161.
CONCLUSION TO THE COUNTRY. In plead-
ing. The tender of an issue to be tried by jury.
Co. Litt. 126 a; 1 Saund. 103; 1 Chit. Pl. 592;
Com. Dig. Pleader, E, 32.
CONCLUSIVE. Shutting up a matter; shutting
out all further evidence; not admitting of explan-
ation or contradiction; putting an end to inquiry;
final; irrefutable; decisive. Edwards v. Shreve-
port Creosoting Co., 207 La. 699, 21 So.2d 878.
Beyond question or beyond dispute; manifest;
plain; clear; obvious; visible; apparent; indubi-
table; palpable; and "notorious." Covington
County v. Fite, 120 Miss. 421, 82 So. 308, 309.
As to conclusive "Presumption," and "Proof,"
see those titles.
CONCLUSIVE EVIDENCE. That which is incon-
trovertible, either because the law does not permit
it to be contradicted, or because it is so strong
and convincing as to overbear all proof to the
contrary and establish the proposition in ques-
tion beyond any reasonable doubt. Thompson
Lumber Co. v. Interstate Commerce Commission
(Com.Ct.) 193 F. 648, 682.
CONCORD. In the old process of levying a fine
of lands, the concord was an agreement between
the parties (real or feigned) in which the defor-
ciant (or he who keeps the other out of posses-
sion) acknowledges that the lands in question
are the right of complainant; and, from the ac-
knowledgment or admission of right thus made,
the party who levies the fine is called the "cog-
nizor," and the person to whom it is levied the
"cognizee." 2 Bl.Comm. 350.
The term also denotes an agreement between
two persons, one of whom has a right of action
against the other, settling what amends shall be
made for the breach or wrong; a compromise or
an accord.
Old Practice
An agreement between two or more, upon a
trespass committed, by way of amends or satis-
faction for it. Plowd. 5, 6, 8.
CONCORDARE LEGES LEGIBUS EST OPTI-
MUS INTERPRETANDI MOMS. To make laws
agree with laws is the best mode of interpreting
them. Halk. Max. 70.
CONCORDAT. In public law. A compact or
convention between two or more independent gov-
ernments.
An agreement made by a temporal sovereign
with the pope, relative to ecclesiastical matters.
In French law. A compromise effected by a
bankrupt with his creditors, by virtue of which he
engages to pay within a certain time a certain
proportion of his debts, and by which the credi-
tors agree to discharge the whole of their claims
in consideration of the same. Arg. Fr. Merc.
Law, 553.
CONCORDIA. Lat. In old English law. An
agreement, or concord. Fleta, lib. 5, c. 3, § 5.
The agreement or unanimity of a jury. Compel-
lere ad concordiam. Fleta, lib. 4, c. 9, § 2.
CONCORDIA DISCORDANTIUM CANONUM.
The harmony of the discordant canons. A col-
lection of ecclesiastical constitutions made by
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CONCUSSION
Grattan, an Italian monk, A.D. 1151; more com-
monly known by the name of "Decretum Grati-
anti."
CONCORDIA PARVIE RES CRESCUNT ET
OPULENTIA LITES. 4 Inst. 74. Small means
increase by concord and litigations by opulence.
CONCUBARIA. A fold, pen, or place where cat-
tle lie. Cowell.
CONCUBEANT. Lying together, as cattle.
CONCUBINAGE. A species of loose or informal
marriage which took place among the ancients,
and is yet in use in some countries. See Concu-
binatus.
The act or practice of cohabiting, in sexual
commerce, without the authority of law or a legal
marriage. Succession of Lannes, 187 La. 17, 174
So. 94, 98.
The words concubinage and prostitution have no common
law meaning, but in their popular sense cover all cases of
lewd Intercourse; People v. Cummons, 56 Mich. 544, 23
N.W. 215.
An exception against a woman suing for dower,
on the ground that she was the concubine, and
not the wife, of the man of whose land she seeks
to be endowed. Britt. c. 107.
CONCUBINATUS. In Roman law. An informal,
unsanctioned, or "natural" marriage, as contra-
distinguished from the justce nuptice, or justum
matrimonium, the civil marriage.
CONCUBINE. (1) A woman who cohabits with
a man to whom she is not married. State v. Du-
sin, 125 Kan. 400, 264 P. 1043, 1044. (2) A sort of
inferior wife, among the Romans, upon whom the
husband did not confer his rank or quality.
CONCUR. To agree; accord; act together; con-
sent. In the practice of appellate courts, a "con-
curring opinion" is one filed by one of the judges
or justices, in which he agrees with the conclu-
sions or the result of another opinion filed in the
case (which may be either the opinion of the
court or a dissenting opinion) though he states
separately his views of the case or his reasons for
so concurring. State v. Pierce, 175 Wash. 461, 27
P.2d 1083.
In Louisiana law. To join with other claimants
in presenting a demand against an insolvent es-
tate.
CONCURATOR. In the civil law. A joint or
co-curator, or guardian.
CONCURRENCE. In French law. The posses-
sion, by two or more persons, of equal rights or
privileges over the same subject-matter.
CONCURRENCE DELOYALE. A term of the
French law nearly equivalent to "unfair trade
competition;" and used in relation to the infringe-
ment of rights secured by trade-marks, etc. It
signifies a dishonest, perfidious, or treacherous
rivalry in trade, or any manoeuvre calculated to
prejudice the good will of a business or the value
of the name of a property or its credit or renown
with the public, to the injury of a business com-
petitor. Simmons Medicine Co. v. Mansfield Drug
Co., 93 Tenn. 84, 23 S.W. 165.
CONCURRENT. Running together; having the
same authority; acting in conjunction; agreeing
in the same act or opinion; pursuit of same
course; contributing to the same event; contem-
poraneous. Brinkman v. Morgan, C.C.A.Kan.,
253 F. 553, 554. Co-operating, accompanying, con-
joined, associated, concomitant, joint and equal,
existing together, and operating on the same sub-
ject. Rose v. Sprague, 248 Ky. 635, 59 S.W.2d 554,
556. United in agreement. State ex rel. School
Dist. No. 8, v. Lensman, 108 Mont. 118, 88 P.2d
63, 68.
As to concurrent "Cause," "Covenants," "Insur-
ance," "Lease," "Negligence," "Resolution," and
"Writs," see those titles.
CONCURRENT JURISDICTION. The jurisdic-
tion of several different tribunals, each authoriz-
ed to deal with the same subject-matter at the
choice of the suitor. Cashman v. Vickers, 69
Mont. 516, 223 P. 897, 898.
CONCURRENT LIENS. Maritime liens are con-
current when they are of the same rank, and for
supplies or materials or services in preparation
for the same voyage, or if they arise on different
bottomry bonds to different holders for advances
at the same time for the same repairs, The J.
W. Tucker, D.C.N.Y., 20 F. 132.
CONCURRENT POWER. Political powers ex-
ercised independently in the same field of leg-
islation by both federal and state governments.
State ex rel. School Dist. No. 8, v. Lensman, 108
Mont. 118, 88 P.2d 63, 68.
CONCURSO. In the law of Louisiana, the ,name
of a suit or remedy to enable creditors to enforce
their claims against an insolvent or failing debtor.
Schroeder v. Nicholson, 2 La. 355. Litigation or
opportunity of litigation between various credi-
tors, each claiming adversely to one another to
share in a fund or an estate, object being to as-
semble in one accounting all claimants on the
fund. Seal v. Gano, 160 La. 636, 107 So. 47S, 474.
CONCURSUS. In the civil law. (1) A running
together; a collision, as concursus creditorum, a
conflict among creditors. Graphic Arts Bldg. Co.
v. Union Indemnity Co., 163 La. 1, 111 So. 470,
471; Miller v. Bonner, 163 La. 332, 111 So. 776, 778;
(2) A concurrence, or meeting, as concursus dc-
tionum, concurrence of actions.
A proceeding in Louisiana similar to interplead-
er. See Louisiana Molasses Co. v. Le Sassier, 52
La.Ann. 2070, 28 So. 217.
CONCUSS. In Scotch law. To coerce.
CONCUSSIO. In the civil law. The offense of
extortion by threats of violence. Dig. 47, 13.
CONCUSSION. In the civil law. The unlawful
forcing of another by threats of violence to give
something of value. It differs from robbery, in
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CONCUSSION
this: That in robbery the thing is taken by force,
while in concussion it is obtained by threatened
violence. Heinec.Elem. § 1071.
In medical jurisprudence. Concussion of the
brain is a jarring of the brain substance, by a
fall, blow, or other external injury, without lacer-
ation of its tissue, or with only microscopical lac-
eration. Mathews v. Hayne, La.App., 188 So. 462,
468.
CONDEDIT. In ecclesiastical law. The name of
a plea entered by a party to a libel filed in the ec-
clesiastical court, in which it is pleaded that the
deceased made the will which is the subject of
the suit, and that he was of sound mind. 2 Eng.
Ecc. R. 438; 6 Eng. Eec. R. 431.
CONDEMN. To find or adjudge guilty. 3 Leon.
68. To adjudge or sentence. 3 Bl.Comm. 291.
To adjudge (as an admiralty court) that a vessel
is a prize, or that she is unfit for service. 1
Kent, Comm. 102; 5 Esp. 65. To set apart or
expropriate property for public use, in the exer-
cise of the power of eminent domain. State v.
Sayer, 43 S.D. 45, 177 N.W. 807, 809.
CONDEMNATION. In admiralty law. The
judgment or sentence of a court having jurisdic-
tion and acting in rem, by which (1) it is declared
that a vessel which has been captured at sea as
a prize was lawfully so seized and is liable to be
treated as prize; or (2) 'that property which has
been seized for an alleged violation of the revenue
laws, neutrality laws, navigation laws, etc., was
lawfully so seized, and is, for such cause, forfeit-
ed to the government; or (3) that the vessel
which is the subject of inquiry is unfit and unsafe
for navigation. Gallagher v. Murray, 9 Fed.Cas.
1087.
In the civil law. A sentence or judgment
which condemns some one to do, to give, or to pay
something, or which declares that his claim or
pretensions are unfounded. Lockwood v. Saf-
fold, 1 Ga. 72; State v. Harr, 24 Tenn.App. 298,
143 S.W.2d 893, 895.
In real property law. The process by which
property of a private owner is taken for public
use, without his consent, but upon the award
and payment of just compensation, being in the
nature of a forced sale and condemner stands to-
ward owner as buyer toward seller. Atlanta, K.
& N. R. Co. v. Southern Ry. Co., C.C.A.Tenn., 131
F. 666, 66 C.C.A. 601; Jones v. Oklahoma City, 192
Okl. 470, 137 P.2d 233, 237, 155 A.L.R. 375.
A. "condemnation proceeding" is a special proceeding at
law to determine in a single action the damages done by
the taking, but it is not a civil action, or a civil process
within the meaning of the statutes relating to civil process.
In re New Haven Water Co., 86 Conn. 361, 85 A. 636, 638.
The law authorizing it must be strictly construed, and
every condition and requirement must be shown to have
been complied with. Richter v. Rodgers, 327 Mo. 543, 37
S.W.2d 523, 528.
CONDEMNATION MONEY. In practice. The
damages which the party failing in an action is
adjudged or condemned to pay; sometimes simply
called the "condemnation."
As used in an appeal bond, this phrase means
the damages which should be awarded against
the appellant by the judgment of the court. It
does not embrace damages not included in the
judgment. Thomas v. Gethman, 91 Old. 42, 215
P. 731, 732.
CONDESCENDENCE. In the Scotch law. A
part of the proceedings in a cause, setting forth
the facts of the case on the part of the pursuer
or plaintiff.
CONDICTIO. In Roman law. A general term
for actions of a personal nature, founded upon an
obligation to give or do a certain and defined
thing or service. It is distinguished from vindi-
catio rei, which is an action to vindicate one's
right of property in a thing by regaining (or
retaining) possession of it against the adverse
claim of the other party.
CONDICTIO CERTI. An action which lies upon
a promise to do a thing, where such promise or
stipulation is certain, (si certa sit stipulatio.)
Inst. 3, 16, pr.; Id. 3, 15, pr.; Dig. 12, 1; Bract.
fol. 103b.
CONDICTIO EX LEGE. An action arising where
the law gave a remedy, but provided no appropri-
ate form of action. Calvin.
CONDICTIO INDEBITATI. An action which lay
to recover anything which the plaintiff had given
or paid to the defendant, by mistake, and which
he was not bound to give or pay, either in fact
or in law.
CONDICTIO REI FURTIVIE. An action which
lay to recover a thing stolen, against the thief
himself, or his heir. Inst. 4, 1, 19.
CONDICTIO SINE CAUSA. An action which lay
in favor of a person who had given or promised a
thing without consideration,' (causa.) Dig. 12, 7;
Cod. 4, 9.
CONDITIO. Lat. A condition.
CONDITIO BENEFICIALIS, QUIE STATUM
CONSTRUIT, BENIGNE SECUNDUM VERBOR-
UM INTENTIONEM EST INTERPRETANDA;
ODIOSA AUTEM, QUIE STATUM DESTRUIT,
STRICTE SECUNDUM BERBORUM PROPRIE-
TATEM ACCIPIENDA. 8 Coke, 90. A beneficial
condition, which creates an estate, ought to be
construed favorably, according to the intention of
the words; but a condition which destroys an
estate is odious, and ought to be construed strict-
ly according to the letter of the words.
CONDITIO DICITUR, CUM QUID IN CASUM IN-
CERTUM QUI POTEST TENDERE AD ESSE
AUT NON ESSE, CONFERTUR. Co. Litt. 201.
It is called a "condition," when something is giv-
en on an uncertain event, which may or may not
come into existence.
CONDITIO ILLICITA HABETUR PRO NON
ADJECTA. An unlawful condition is deemed as
not annexed.
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CONDITION
CONDITIO PR1ECEDENS ADIMPLERI DEBET
PRIUS QUAM SEQUATUR EFFECTUS. Co.
Litt. 201. A condition precedent must be fulfill-
ed before the effect can follow.
CONDITION. A future and uncertain event up-
on the happening of which is made to depend the
existence of an obligation, or that which subor-
dinates the existence of liability under a contract
to a certain future event. Standard Surety &
Casualty Co. v. Wynn, Tex.Civ.App., 172 S.W.2d
789, 792; Barber Asphalt Paving Co. v. St. Louis
Cypress Co., 121 La. 152, 46 So. 193, 197.
Civil Law
The rank, situation, or degree of a particular
person in some one of the different orders of so-
ciety.
An agreement or stipulation in regard to some
uncertain future event, not of the essential nature
of the transaction, but annexed to it by the par-
ties, providing for a change or modification of
their legal relations upon its occurrence. Mack-
eld. Rom. Law, § 184.
Classification. Conditions are of the following
several kinds:
The casual condition is that which depends on
chance, and is in no way in the power either of
the creditor or of the debtor. Civ.Code La. art.
2023.
A mixed condition is one that depends at the
same time on the will of one of the parties and
on the will of a third person, or on the will of
one of the parties and also on a casual event.
Civ.Code La. art. 2025.
The potestative condition is that which makes
the execution of the agreement depend on an event
which it is in the power of the one or the other
of the contracting parties to bring about or to
hinder. Civ.Code La. art. 2024.
A resolutory or dissolving condition is that
which, when accomplished, operates the revoca-
tion of the obligation, placing matters in the same
state as though the obligation had not existed.
It does not suspend the execution of the obliga-
tion. It only obliges the creditor to restore what
he has received in case the event provided for in
the condition takes place. Civ.Code La. art. 2045;
Moss v. Smoker, 2 La.Ann. 991.
A suspensive condition is that which depends,
either on a future and uncertain event, or on an
event which has actually taken place, without its
being yet known to the parties. In the former
case, the obligation cannot be executed till after
the event; in the latter, the obligation has its ef-
fect from the day on which it was contracted, but
it cannot be enforced until the event be known.
Civ.Code La. art. 2043; New Orleans v. Railroad
Co., 18 S.Ct. 875, 171 U.S. 312, 43 L.Ed. 178; Moss
v. Smoker, 2 La.Ann. 991. A condition which pre-
vents a contract from going into operation until
it has been fulfilled.
Common Law
The rank, situation, or degree of a particular
person in some one of the different orders of so-
ciety; or his status or situation, considered as a
juridical person, arising from positive law or the
institutions of society. Thill v. Pohlman, 76 Iowa,
638, 41 N.W. 385.
A clause in a contract or agreement which has
for its object to suspend, rescind, or modify the
principal obligation, or, in case of a will, to sus-
pend, revoke, or modify the devise or bequest; a
qualification, restriction, or limitation modifying
or destroying the original act with which it is
connected; an event, fact, or the like that is
necessary to the occurrence of some other, though
not its cause; a prerequisite. Towle v. Rem-
sen, 70 N.Y. 303.
A modus or quality annexed by him that hath
an estate, or interest or right to the same, where-
by an estate, etc., may either be defeated, enlarg-
ed, or created upon an uncertain event. Co.Litt.
201a.
A qualification or restriction annexed to a con-
veyance of lands, whereby it is provided that in
case a particular event does or does not happen,
or in case the grantor or grantee does or omits to
do a particular act, an estate shall commence, be
enlarged, or be defeated. Anderson v. Palladine,
39 Cal.App. 256, 178 P. 553, 554.
An "estate on condition" arises where an estate is grant-
ed, either in fee simple or otherwise, with an express
qualification annexed, whereby the estate granted shall
either commence, be enlarged, or be defeated, upon per-
formance or breach of such qualification or condition.
Hall v. Quinn, 190 N.C. 326, 130 S.E. 18, 20. Moe v. Gier,
116 Cal.App. 403, 2 P.2d 852, 855.
In insurance parlance, the printed conditions on the in-
side of the policy which serve generally as a limitation of
risk or of liability or impose various conditions requiring
compliance by the insured. Federal Intermediate Credit
Bank of Baltimore v. Globe & Rutgers Fire Ins. Co., D.C.
Md., 7 F.Supp. 56, 68.
Mode or state of being; state or situation; es-
sential quality; property; attribute. Consolidat-
ed Arizona Smelting Co. v. Egich, 22 Ariz. 543,
199 P. 132, 134.
Classification. The different kinds of conditions
known to the common law may be arranged and
described as follows:
Express and implied conditions are also called by the
older writers, respectively, conditions in deed (or in fact,
the Law French term being conditions en fait) and condi-
tions in law. Co. Litt. 201a.
They are either express or implied, the former
when incorporated in express terms in the deed,
contract, lease, or grant; the latter, when infer-
red or presumed by law, from the nature of the
transaction or the conduct of the parties, to have
been tacitly understood between them as a part
of the agreement, though not expressly men-
tioned. 2 Crabb, Real Prop. p. 792; Bract. fol. 47;
Civ.Code La. art. 2026; Raley v. Umatilla County,
15 Or. 172, 13 P. 890, 3 Am.St.Rep. 142.
They are possible or impossible; the former
when they admit of performance in the ordinary
course of events; the latter when it is contrary
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CONDITION
to the course of nature or human limitations that
they should ever be performed.
They are lawful or unlawful; the former when
their character is not in violation of any rule,
principle, or policy of law; the latter when they
are such as the law will not allow to be made.
They are consistent or repugnant; the former
when they are in harmony and concord with the
other parts of the transaction; the latter when
they contradict, annul, or neutralize the main pur-
pose of the contract. Repugnant conditions are
also called "insensible."
They are affirmative or negative; the former
being a condition which consists in doing a thing;
as provided that the lessee shall pay rent, etc.,
and the latter being a condition which consists in
not doing a thing; as provided that the lessee
shall not alien, etc. Shep. Touch. 118.
They are precedent or subsequent. A condition
precedent is one which must happen or be per-
formed before the estate to which it is annexed
can vest or be enlarged; or it is one which is to
be performed before some right dependent there-
on accrues, or some act dependent thereon is per-
formed. Federal Land Bank of Louisville v. Luck-
enbill, 213 Ind. 616, 13 N.E.2d 531, 533. A "con-
dition precedent" is one that is to be performed
before the agreement becomes effective, and which
calls for the happening of some event or the per-
formance of some act after the terms of the con-
tract have been agreed on, before the contract
shall be binding on the parties. Rogers v. Malon-
ey, 85 Or. 61, 165 P. 357, 358; Mercer-Lincoln Pine
Knob Oil Co. v. Pruitt, 191 Ky. 207, 229 S.W. 374.
A condition subsequent is one annexed to an es-
tate already vested, by the performance of which
such estate is kept and continued, and by the fail-
ure or non-performance of which it is defeated;
or it is a condition referring to a future event,
upon the happening of which the obligation be-
comes no longer binding upon the other party, if
he chooses to avail himself of the condition. Co.
Litt. 201; Carroll v. Carroll's Ex'r, 248 Ky. 386,
58 S.W.2d 670, 672.
Conditions may also be positive (requiring that
a specified event shall happen or an act be done)
and restrictive or negative, the latter being such
as impose an obligation not to do a particular
thing, as, that a lessee shall not alien or sub-let
or commit waste, or the like. Shep. Touch. 118.
They may be single, copulative, or disjunctive.
Those of the first kind require the performance of
one specified thing only; those of the second kind
require the performance of divers acts or things;
those of the third kind require the performance
of one of several things. Shep. Touch. 118.
Conditions may also be independent, dependent,
or mutual. They belong to the first class when
each of the two conditions must be performed
without any reference to the other; to the second
class when the performance of one condition is
not obligatory until the actual performance of
the other; and to the third class when neither
party need perform his condition unless the oth-
er is ready and willing to perform his, or, in oth-
er words, when the mutual covenants go to the
whole consideration on both sides and each is pre-
cedent to the other. Huggins v. Daley, W.Va., 99
F. 609, 40 C.C.A. 12, 48 L.R.A. 320.
The following varieties may also be noted: A.
condition collateral is one requiring the perform-
ance of a collateral act having no necessary re-
lation to the main subject of the agreement. A
compulsory condition is one which expressly re-
quires a thing to be done, as, that a lessee shall
pay a specified sum of money on a certain day or
his lease shall be void. Shep. Touch. 118. Con-
current conditions are those which are mutually
dependent and are to be performed at the same
time. Milwaukee Land Co. v. Ruesink, 50 Mont.
489, 148 P. 396, 401. A condition inherent is one
annexed to the rent reserved out of the land
whereof the estate is made, or rather, to the es-
tate in the land, in respect of rent. Shep. Touch.
118.
French Law
The following peculiar distinctions are made:
(1) A condition is easuelle when it depends on a
chance or hazard; (2) a condition is potestative
when it depends on the accomplishment of some-
thing which is in the power of the party to ac-
complish; (3) a condition is mixte when it de-
pends partly on the will of the party and partly
on the will of others; (4) a condition is suspen-
sive when it is a future and uncertain event, or
present but unknown event, upon which an ob-
ligation takes or fails to take effect; (5) a con-
dition is resolutoire when it is the event which
undoes an obligation which has already had ef-
fect as such. Brown.
Synonyms Distinguished
A "condition" is to be distinguished from a
limitation, in that the latter may be to or for the
benefit of a stranger, who may then take advan-
tage of its determination, while only the grantor,
or those who stand in his place, can take advan-
tage of a condition. Hoselton v. Hoselton, 166
Mo. 182, 65 S.W. 1005; and in that a limitation
ends the estate without entry or claim, which is
not true of a condition. It also differs from a
conditional limitation. In determining whether,
in the case of estates greater than estates for
years, the language constitutes a "condition" or
a "conditional limitation," the rule applied is that,
where an estate is so expressly limited by the
words of its creation that it cannot endure for any
longer time than until the condition happens on
which the estate is to fail, this is limitation, but
when the estate is expressly granted on condition
in deed, the law permits it to endure beyond the
time of the contingency happening, unless the
grantor takes advantage of the breach of condi-
tion, by making entry. Lonas v. Silver, 195 N.Y.
S. 214, 215, 201 App.Div. 383; Yarbrough v. Yar-
brough, 151 Tenn. 221, 269 S.W. 36, 38. It differs
also from a covenant, which can be made by either
grantor or grantee, while only the grantor can
make a condition (Co. Litt. 70) ; De Grasse v. Ver-
ona Mining Co., 185 Mich. 514, 152 N.W. 242, 246;
The chief distinction between a condition subse-
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CONDUCT
quent in a deed and a covenant pertains to the
remedy in event of breach, which, in the former
case, subjects the estate to a forfeiture, and in
the latter is merely a ground for recovery of dam-
ages. Bartell v. Senger, 160 Md. 685, 155 A. 174,
176. A charge is a devise of land with a bequest
out of the subject-matter, and a charge upon the
devisee personally, in respect of the estate de-
vised, gives him an estate on condition. A con-
dition also differs from a remainder; for, while
the former may operate to defeat the estate be-
fore its natural termination, the latter cannot take
effect until the completion of the preceding es-
tate.
CONDITIONAL. That which is dependent upon
or granted subject to a condition.
As to conditional "Acceptance," "Appearance,"
"Bequest," "Contract," "Delivery," "Devise,"
"Fee," "Guaranty," "Judgment," "Legacy," "Lim-
itation," "Obligation," "Pardon," "Privilege," and
"Sale," see those titles.
CONDITIONAL CREDITOR. In the civil law.
A creditor having a future right of action, or hav-
ing a right of action in expectancy. Dig. 50, 16,
54.
CONDITIONAL INDORSEMENT. See Indorse-
ment.
CONDITIONAL STIPULATION. In the civil
law. A stipulation to do a thing upon condition,
as the happening of any event.
CONDITIONALLY PRIVILEGED COMMUNICA-
TION. One made in good faith on any subject
matter in which the person publishing has an in-
terest, or in reference to which he has a duty, if
made to a person having a corresponding interest
or duty, even though it contains matter which oth-
erwise would be actionable. Cook v. East Shore
Newspapers, 327 Ill.App. 559, 64 N.E.2d 751, 760.
The essential elements of a "conditionally priv-
ileged communication" are good faith, an interest
to be upheld, a statement limited in its scope to
such purpose, a proper occasion, and publication
in a proper manner to proper persons. Cook v.
East Shore Newspaper, 327 Ill.App. 559, 64 N.E.
2d 751.
CONDITIONES QUIELIBET ODIOSIE; MAX-
DIE AUTEM CONTRA MATRIMONIUM ET
COMMERCIUM. Any conditions are odious, but
especially those which are against [in restraint
of ] marriage and commerce. Lofft, Appendix, 644.
CONDITIONS OF SALE. The terms upon which
sales are made at auction; usually written or
printed and exposed in the auction room at the
time of sale.
CONDOMINIA. In the civil law. Co-ownerships
or limited ownerships, such as emphyteusis, su-
perficies, pignus, hypotheca, ususfructus, usus,
and habitatio. These were more than mere
Jura in re aliend, being portion of the dominium
itself, although they are commonly distinguished
from the dominium strictly so called. Brown.
CONDOMINIUM. System of separate ownership
of individual units in multiple-unit building. Suss-
kind v. 1136 Tenants Corp., 251 N.Y.S.2d 321, 327,
43 Misc.2d 588.
CONDONACION. In Spanish law. The remis-
sion of a debt, either expressly or tacitly.
CONDONATION. The conditional remission or
forgiveness, by means of continuance or resump-
tion of marital cohabitation, by one of the married
parties, of a known matrimonial offense commit-
ted by the other, that would constitute a cause of
divorce; the condition being that the offense shall
not be repeated. Pain v. Pain, 37 Mo.App. 115. ,
Betz v. Betz, 25 N.Y.Super.Ct. 696; State v. Man-
os, 204 N.C. 52, 167 S.E. 493; Thum v. Thum, 105
Colo. 352, 98 P.2d 279, 280.
"Condonation," to constitute valid defense in divorce
action, must be free, voluntary, and not induced by duress
or fraud; "condonation" means pardon of offense, volun-
tary overlooking or implied forgiveness by treating offend-
er as if offense had not been committed. Panther v. Panth-
er, 147 Okl. 131, 295 P. 219, 221. The term is also some-
times applied to forgiveness of a past wrong, fault, injury,
or breach of duty in other relations, as, for example, in
that of master and servant. Leatherberry v. Odell, C.C.
N.C., 7 F. 648. Also, antenuptial unchastity is capable of
"condonation." Wesley v. Wesley, 181 Ky. 135, 204 S.W.
165, 166.
CONDONE. To make condonation of.
CONDUCE. To contribute to as a result. Board
of Com'rs of Mercer County v. Deitsch, 94 Ohio
St. 1, 113 N.E. 745, 747.
CONDUCT, v. To manage; direct; lead; have
direction; carry on; regulate; do business. Wi-
chita Film & Supply Co. v. Yale, 194 Mo.App. 60,
184 S.W. 119, 121; State v. Mahfouz, 181 La. 23,
158 So. 609; Scholz v. Leuer, 7 Wash.2d 76, 109
P.2d 294, 301.
CONDUCT, n. Personal behavior; deportment;
mode of action; any positive or negative act.
Kelly v. State, 151 Md. 87, 133 A. 899, 904; Lam-
born v. New York Cotton Exch., 197 N.Y.S. 57,
60, 203 App.Div. 565.
CONDUCT, ESTOPPEL BY. An estoppel exists
where a man by his own acts or acceptance is
concluded from saying the truth. Menzenberger
v. American State Bank, 101 Ind.App. 600, 198 N.
E. 819. See, also, Equitable Estoppel.
The doctrine does not apply to an agreement which is il-
legal. Miller v. California Roofing Co., 55 Cal.App.2d 136,
130 P.2d 740, 745.
Elements or essentials of estoppel are acts done which
cannot be contravened without fraud or gross misconduct,
Tradesmens Nat. Bank of New Haven v. Minor, 190 A. 270,
272, 122 Conn. 419; change of position to injury of party
claiming benefit of estoppel, Mundt v. Mallon, 106 Mont.
244, 76 P.2d 326, 329; Thompson v. Hudgens, 159 S.E. 807,
811, 161 S.C. 450; false representation or concealment,
Marshall v. Wilson, 175 Or. 506, 154 P.2d 547, 553; Hamil-
ton v. Northeast Mut. Ins. Ass'n, Mo.App., 116 S.W.2d 159,
163; ignorance of facts of one claiming right of estoppel,
McCarthy v. Union Pac. Ry. Co., 58 Wyo. 308, 131 P.2d
326, 330, 332; inducement to do or forbear doing, some-
thing one would not, or would, otherwise have done,
O'Brien v. U. S., C.C.A.Ind., 51 F.2d 674, 678; intent to
have other party act or conduct calculated to mislead,
Woodmen of the World Life Ins. Soc. v. Greathouse, 242
Ala. 532, 7 So.2d 89, 91; Marshall v. Wilson, 175 Or. 506,
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CONDUCT
154 P.2d 547, 553; knowledge of party sought to be es-
topped, McLearn v. Hill, 276 Mass. 519, 177 N.E. 617, 619,
77 A.L.R. 1039; misleading of person claiming estoppel,
Dodd v. Rotterman, 161 N.E. 756, 761, 330 Ill. 362; State v.
Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 19; prejudice to
party claiming estoppel, Combs v. Salyer, 165 S.W.2d 40,
43, 291 Ky. 592; Burlington Sa y . tank of Burlington, Vt.,
v. Rockwell, C.C.A.Idaho, 31 F.2d 27, 29; reliance upon
conduct of one sought to be estopped, Wiedersum v. At-
lantic Cement Products, 25 N.Y.S.2d 496, 501, 261 App.Div.
305; State v. Smith, 135 Neb. 423, 281 N.W. 851, 856; rep-
resentation or concealment of material facts, City Dairy Co.
v. Uservo, Inc., 101 Ind.App. 375, 199 N.E. 457.
CONDUCT MONEY. In English practice. Mon-
ey paid to a witness who has been subpoenaed on
a trial, sufficient to defray the reasonable expenses
of going to, staying at, and returning from the
place of trial. Lush, Pr. 460; Archb. New Pr. 639.
CONDUCT! ACTIO. In the civil law. An action
which the hirer (conductor) of a thing might have
against the letter, (locator.) Inst. 3, 25, pr. 2.
CONDUCTIO. In the civil law. A hiring. Used
generally in connection with the term locatio, a
letting. Locatio et conductio, (sometimes united
as a compound word, "locatio-conductio,") a let-
ting and hiring. Inst. 3, 25; Bract. fol. 62, c. 28;
Story, Bailm. §§ 8, 368.
CONDUCTOR. In the civil law. A hirer.
CONDUCTOR OPERARUM. In the civil law. A
person who engages to perform a piece of work
for another, at a stated price.
CONDUCTUS. A thing hired.
CONE. In geology. Area built up by a stream,
near the mouth of a canyon of boulders, small
stones, gravel, sand and other detritus. Haack v.
San Fernando Mission Land Co., 177 Cal. 140, 169
P. 1021, 1022.
CONE AND KEY. In old English law. A woman
at fourteen or fifteen years of age may take
charge of her house and receive cone and key;
that is, keep the accounts and keys. Cowell.
Said by Lord Coke to be cover and keye, meaning
that at that age a woman knew what in her house
should be kept under lock and key. 2 Inst. 203.
CONFARREATIO. In Roman law. A sacrificial
rite resorted to by marrying persons of high pat-
rician or priestly degree, for the purpose of cloth-
ing the husband with the manus over his wife;
the civil modes of effecting the same thing
being coemptio, (formal,) and usus mulieris, (in-
formal.) Brown.
CONFECTIO. The making and completion of a
written instrument. 5 Coke, 1.
CONFEDERACY,
Criminal Law
The association or banding together of two or
more persons for the purpose of committing an
act or furthering an enterprise which is forbidden
by law, or which, though lawful in itself, becomes
unlawful when made the object of the confederacy.
State v. Crowley, 41 Wis. 284, 22 Am.Rep. 719;
Watson v. Navigation Co., 52 How.Prac. (N.Y.)
353. Conspiracy is a more technical term for this
offense. The act of two or more who combine to-
gether to do any damage or injury to another, or
to do any unlawful act. Jacob. State v. Crow-
ley, 41 Wis. 284, 22 Am.Rep. 719.
Equity Pleading
An improper combination alleged to have been
entered into between the defendants to a bill in
equity.
International Law
A league or agreement between two or more in-
dependent states whereby they unite for their mu-
tual welfare and the furtherance of their common
aims. The term may apply to a union so formed
for a temporary or limited purpose, as in the case
of an offensive and defensive alliance; but it is
more commonly used to denote that species of poli-
tical connection between two or more independent
states by which a central government is created,
invested with certain powers of sovereignty,
(mostly external,) and acting upon the several
component states as its units, which, however,
retain their sovereign powers for domestic pur-
poses and some others. See Federal Government.
CONFEDERATION. A league or compact for
mutual support, particularly of princes, nations,
or states. Such was the colonial government dur-
ing the Revolution.
CONFERENCE. A meeting of several persons for
deliberation, for the interchange of opinion, or
for the removal of differences or disputes. Thus,
a meeting between a counsel and solicitor to ad-
vise on the cause of their client.
In the practice of legislative bodies, when the
two houses cannot agree upon a pending measure,
each appoints a committee of "conference," and
the committees meet and consult together for the
purpose of removing differences, harmonizing con-
flicting views, and arranging a compromise which
will be accepted by both houses.
French Law
A concordance or identity between two laws
or two systems of laws.
International Law
A personal meeting between the diplomatic
agents of two or more powers, for the purpose
of making statements and explanations that will
obviate the delay and difficulty attending the more
formal conduct of negotiations.
CONFESS. To admit as true; to assent to; to
concede. Guydon v. Taylor, 115 Ind.App. 685, 60
N.E.2d 750, 751. To admit the truth of a charge
or accusation. Usually spoken of charges of tor-
tious or criminal conduct.
CONFESSING ERROR. A plea to an assignment
of error, admitting the same.
CONFESSIO. Lat. A confession. Confessio
judicio, a confession made in or before a court.
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CONFIDENCE
CONFESSIO FACTA IN JUDICIO OMNI PRO-
BATIONE MAJOR EST. A confession made in
court is of greater effect than any proof. Jenk.
Cent. 102.
CONFESSION. In criminal law. A voluntary
statement made by a person charged with the
commission of a crime or misdemeanor, communi-
cated to another person, wherein he acknowledges
himself to be guilty of the offense charged, and
discloses the circumstances of the act or the share
and participation which he had in it. Spicer v.
Com., 21 Ky.L.Rep. 528, 51 S.W. 802. State v. Gib-
son, 69 N.D. 70, 284 N.W. 209, 214, 215, 219; Sango
v. State, 52 Okl.Cr. 359, 5 P.2d 400, 401; Edwards
v. State, Okl.Cr.App., 288 P. 359, 361. Also the
act of a prisoner, when arraigned for a crime or
misdemeanor, in acknowledging and avowing that
he is guilty of the offense charged.
"Confession" comprises whole criminal charge; where-
as, "admission" relates only to particular fact or circum-
stance covered thereby. State v. Davis, 212 Iowa 131, 235
N.W. 759, 761.
Classification
Confessions are divided into judicial and ex-
trajudicial. The former are such as are made
before a magistrate or court in the due course of
legal proceedings; they include confessions made
in preliminary examinations before magistrates.
Mularkey v. State, 199 Wis. 269, 225 N.W. 933,
934. The latter are such as are made by a party
elsewhere than in court or before a magistrate,
1 Greenl. Ev. § 216, State v. Corey, 182 Minn. 48,
233 N.W. 590, 591; Foster v. State, 79 Okl.Cr. 183,
152 P.2d 929, 932; Louette v. State, 152 Fla. 495,
12 So.2d 168, 172; whether to an official or non-
official person, Prather v. State, 76 Okl.Cr. 385, 137
P.2d 249, 252. One made by the party out of court,
or to any person, official or otherwise, when made
not in the course of a judicial examination or in-
vestigation. State v. Stevenson, 98 Or. 285, 193 P.
1030, 1032.
An implied confession is where the defendant,
in a case not capital, does not plead guilty but
indirectly admits his guilt by placing himself at
the mercy of the court and asking for a light sen-
tence. 2 Hawk. P. C. p. 469; State v. Conway,
20 R.I. 270, 38 A. 656. An indirect confession is
one inferred from the conduct of the defendant.
An involuntary confession is one induced by hope,
promise, fear, violence, torture, or threat. Lyons
v. State, 77 Okl.Cr. 197, 138 P.2d 142, 148; Lyons
v. State, 140 P.2d 248. People v. Tielke, 259 Ill.
8$, 102 N.E. 229, 231. A naked confession is an
admission of the guilt of the party, but which is
not supported by any evidence of the commission
of the crime. A relative confession, in the older
criminal law of England, "is where the accused
confesseth and appealeth others thereof, to be-
come an approver," (2 Hale, P. C. c. 29,) or in
other words to "turn king's evidence." This is
now obsolete, but something like it is practiced
in modern law, where one of the persons accused
or supposed to be involved in a crime is put on
the witness stand under an implied promise of
pardon. State v. Willis, 71 Conn. 293, 41 A. 820.
A simple confession is merely a plea of guilty.
Black's Law Dictionary Revised 4th Ed.-24
State v. Willis, 71 Conn. 293, 41 A. 820. A volun-
tary confession is one made spontaneously by a
person accused of crime, free from the influence
of any extraneous disturbing cause, and in par-
ticular, not influenced, or extorted by violence,
threats, or promises. State v. Clifford, 86 Iowa,
550, 53 N.W. 299, 41 Am.St.Rep. 518.
No confession induced by official threat of prosecution is
voluntary. Cannan v. U. S., C.C.A.Tex., 19 F.2d 823, 824;
State v. Dolan, 86 N.J.L. 192, 90 A. 1034, 1035.
It need not be spontaneous nor proceed wholly at maker's
suggestion, but may be set in motion by external causes,
so long as such influences are not what the law deems
improper. People v. Vinci, 295 111. 419, 129 N.E. 193, 195.
For extrajudicial confession, see, also, the title
Extrajudicial.
CONFESSION AND AVOIDANCE. A plea in con-
fession and avoidance is one which avows and
confesses the truth of the averments of fact in the
declaration, either expressly or by implication, but
then proceeds to allege new matter which tends
to deprive the facts admitted of their ordinary
legal effect, or to obviate, neutralize, or avoid
them. Bavarian Brewing Co. v. Retkowski, 113 A.
903, 907, 1 W.W.Flarr. (Del.) 225; Brown v. Jones,
137 Or. 520, 3 P.2d 768, 769.
CONFESSION OF DEFENSE. In English prac-
tice. Where defendant alleges a ground of de-
fense arising since the commencement of the ac-
tion, the plaintiff may deliver confession of such
defense and sign judgment for his costs up to the
time of such pleading, unless it be otherwise or-
dered. Jud. Act 1875, Ord. XX, r. 3.
CONFESSION OF JUDGMENT. See Judgment.
CONFESSO, BILL TAKEN PRO. In equity prac-
tice. An order which the court of chancery makes
when the defendant does not file an answer, that
the plaintiff may take such a decree as the case
made by his bill warrants.
CONFESSOR. An ecclesiastic who receives auri-
cular confessions of sins from persons under his
spiritual charge, and pronounces absolution upon
them. The secrets of the confessional are not
privileged communications at common law, but
this has been changed by statute in some states.
See 1 Greenl. Ev. §§ 247, 248.
CONFESSORIA ACTIO. Lat. In the civil law.
An action for enforcing a servitude. Mackeld.
Rom. Law, § 324.
CONFESSUS IN JUDICIO PRO JUDICATO
HABETUR, ET QUODAMMODO SUA SENTEN-
TIA  11 Coke, 30. A person confes-
sing his guilt when arraigned is deemed to have
been found guilty, and is, as it were, condemned
by his own sentence.
CONFIDE. A synonym of the word "trust," and
means to put into one's trust or keeping. Burch
v. McMillin, Tex., 15 S.W.2d 86, 90.
CONFIDENCE. Trust; reliance; ground of trust.
In the construction of wills, this word is con-
sidered peculiarly appropriate to create a trust.
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CONFIDENCE
"It is as applicable to the subject of a trust, as
nearly a synonym, as the English language is cap-
able of. Trust is a confidence which one man
reposes in another, and confidence is a trust."
Appeal of Coates, 2 Pa. 133.
CONFIDENCE GAME. Obtaining of money or
property by means of some trick, device, or swind-
ling operation in which advantage is taken of the
confidence which the victim reposes in the swind-
ler. People v. Mutchler, 309 Ill. 207, 140 N.E. 820,
822, 35 A.L.R. 339; Roll v. People, 243 P. 641, 643,
78 Colo. 589; People v. Epstein, 338 Ill. 631, 170
N.E. 678, 679. For distinction between false pre-
tenses and confidence game, see False Pretenses.
One obtaining property by unlawful means, other than
by fraudulently obtaining and then abusing victim's con-
fidence, is not guilty of obtaining property by means of
"confidence game." Bomareto v. People, 111 Colo. 99, 137
P.2d 402, 404.
CONFIDENTIAL. Intrusted with the confidence
of another or with his secret affairs or purposes;
intended to be held in confidence or kept secret.
CONFIDENTIAL COMMUNICATIONS. See Com-
munication.
CONFIDENTIAL CREDITOR. This term has
been applied to the creditors of a failing debtor
who furnished him with the means of obtaining
credit to which he was not entitled, involving in
loss the unsuspecting and fair-dealing creditors.
Gay v. Strickland, 112 Ala. 567, 20 So. 921.
CONFIDENTIAL RELATION. A fiduciary rela-
tion. These phrases are used as convertible terms.
It is a peculiar relation which exists between
client and attorney, principal and agent, principal
and surety, landlord and tenant, parent and child,
guardian and ward, ancestor and heir, husband
and wife, trustee and cestui que trust, executors or
administrators and creditors, legatees, or distribu-
tees, appointer and appointee under powers, and
partners and part owners. In these and like cases,
the law, in order to prevent undue advantage
from the unlimited confidence or sense of duty
which the relation naturally creates, requires the
utmost degree of good faith in all transactions
between the parties. Shell Petroleum Corporation
v. Pratt, D.C.Kan., 22 F.Supp. 304, 305, 306. It is
not confined to any specific association of parties.
It appears when the circumstances make it cer-
tain that the parties do not deal on equal
terms, but on the one side there is an over-
mastering influence, or, on the other, weakness,
dependence, or trust, justifiably reposed. The
mere existence of kinship does not, of itself, give
rise to such relation. In re Null's Estate, 302
Pa. 64, 153 A. 137. It covers every form of rela-
tion between parties wherein confidence is reposed
by one in another, and former relies and acts upon
representations of the other and is guilty of no
derelictions on his own part. Peckham v. John-
son, Tex.Civ.App., 98 S.W.2d 408, 416.
The term "confidential relations," within the exception
to the rule that misrepresentations of law will not work
an estoppel, is not confined to the strict fiduciary relation-
ship existing between those having definite, well-recognized
legal relations of trust and confidence, but extends to every
possible case in which a fiduciary relation exists as a fact,
though it may be a moral, social, domestic, or merely per-
sonal relation, and need not be a legal one. Robbins v.
Law, 48 Cal.App. 555, 192 P. 118, 120; Hitchcock v. Tack-
ett, 208 Ky. 803, 272 S.W. 52, 54.
CONFINEMENT. Confinement may be by either
a moral or a physical restraint, by threats of vio-
lence with a present force, or by physical re-
straint of the person. Ex parte Snodgrass, 43 Tex.
Cr.R. 359, 65 S.W. 1061.
Restraint by sickness in childbirth; lying-in for
delivery of child, or possibly because of advanced
pregnancy. Rose v. Commonwealth Beneficial
Ass'n, 86 A. 673, 674, 4 Boyce (Del.) 144.
Solitary Confinement
See Solitary Confinement.
CONFIRM. To complete or establish that which
was imperfect or uncertain; to ratify what has
been done without authority or insufficiently.
Railway Co. v. Ransom, 15 Tex.Civ.App. 689, 41
S.W. 826. Vermont Shade Roller Co. v. Burling-
ton Traction Co., 102 Vt. 489, 150 A. 138, 142. To
make firm or certain; to give new assurance of
truth or certainty; to put past doubt. State ex
rel. Sherrill v. Milam, 113 Fla. 491, 153 So. 100.
CONFIRMARE EST ID FIRMUM FACERE
QUOD PRIUS INFIRMUM FUIT. Co. Litt. 295.
To confirm is to make firm that which was be-
fore infirm.
CONFIRMARE NEMO POTEST PRIUS QUAM
JUS EI ACCIDERIT. No one can confirm before
the right accrues to him. 10 Coke, 48.
CONFIRMAT USUM QUI TOLLIT ABUSUM. He
confirms the use [of a thing] who removes the
abuse [of it]. Moore, 764.
CONFIRMATIO. The conveyance of an estate,
or the communication of a right that one hath in
or unto lands or tenements, to another that hath
the possession thereof, or somo other estate there-
in, whereby a voidable estate is made sure and
unavoidable, or whereby a particular estate is
increased or enlarged. Shep. Touch. 311; 2 Bl.
Comm. 325.
CONFIRMATIO CHARTARUM. Lat. Confirma-
tion of the charters. A statute passed in the 25
Edw. I., whereby the Great Charter is declared
to be allowed as the common law; all judgments
contrary to it are declared void; copies of it are
ordered to be sent to all cathedral churches and
read twice a year to the people; and sentence of
excommunication is directed to be as constantly
denounced against all those that, by word or deed
or counsel, act contrary thereto or in any degree
infringe it. 1 Bl.Comm. 128.
CONFIRMATIO CRESCENS. An enlarging con-
firmation; one which enlarges a rightful estate.
Shep. Touch. 311.
CONFIRMATIO DIMINUENS. A diminishing
confirmation. A confirmation which tends and
serves to diminish and abridge the services where-
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CONFLICT
by a tenant doth hold, operating as a release of
part of the services. Shep. Touch. 311.
CONFIRMATIO PERFICIENS. A confirmation
which makes valid a wrongful and defeasible title,
or makes a conditional estate absolute. Shep.
Touch. 311.
CONFIRMATIO EST NULLA UBI DONUM PRIE-
CEDENS EST INVALIDUM. Moore, 764; Co.
Litt. 295. Confirmation is void where the preced-
ing gift is invalid.
CONFIRMATIO OMNES SUPPLET DEFECTUS,
LICET ID QUOD ACTUM EST AB INITIO NON
VALUIT. Co. Litt. 295b. Confirmation supplies
all defects, though that which had been done was
not valid at the beginning.
CONFIRMATION. A contract or written mem-
orandum thereof, by which that which was infirm,
difficult of proof, void, imperfect, or subject to be
avoided is ratified, rendered valid and binding,
made firm and unavoidable. Schifferdecker v.
Busch, 225 N.Y.S. 106, 111, 130 Misc, 625.
It implies a deliberate act, intended to renew and ratify
a transaction known to be voidable. Bauer v. Dotterer, 202
Ark. 1055, 155 S.W.2d 54, 57.
A conveyance of an estate or right in esse,
whereby a voidable estate is made sure and un-
avoidable, or whereby a particular estate is in-
creased. Co. Litt. 295b. Beetem v. Garrison, 129
Md. 664, 99 A. 897, 900.
English Ecclesiastical Law
The ratification by the archbishop of the elec-
tion of a bishop by dean and chapter under the
king's letter missive prior to the investment and
consecration of the bishop by the archbishop. 25
Hen. VIII. c. 20.
CONFIRMATION OF SALE. The confirmation of
a judicial sale by the court which ordered it is a
signification in some way (usually by the entry
of an order) of the court's approval of the terms,
price, and conditions of the sale. Johnson v.
Cooper, 56 Miss. 618; Hyman v. Smith, 13 W.Va.
765.
CONFIRMAVI. Lat. I have confirmed. The em-
phatic word in the ancient deeds of confirmation.
Fleta, lib. 3, c. 14, § 5.
CONFIRMEE. The grantee in a deed of confirma-
tion.
CONFIRMOR. The grantor in a deed of confirma-
tion.
CONFISCABLE. Capable of being confiscated or
suitable for confiscation; liable to forfeiture.
Camp v. Lockwood, 1 Dall. (Pa.) 393, 1 L.Ed. 194.
CONFISCARE. In civil and old English law. To
confiscate; to claim for or bring into the fist, or
treasury. Bract. fol. 150.
CONFISCATE. To appropriate property to the
use of the state. To adjudge property to be for-
feited to the public treasury; to seize and con-
demn private forfeited property to public use.
City of Portsmouth v. Public Utilities Commission,
108 Ohio St. 272, 140 N.E. 604, 606; Moscow Fire
Ins. Co. of Moscow, Russia, v. Bank of New York
& Trust Co., 294 N.Y.S. 648, 663, 161 Misc. 903.
Formerly, it appears, this term was used as synonymous
with "forfeit," but at present the distinction between the
two terms is well marked. Confiscation supervenes upon
forfeiture. The person, by his act, forfeits his property;
the state thereupon appropriates it, that is, confiscates it.
Hence, to confiscate property implies that it has first been
forfeited; but to forfeit property does not necessarily im-
ply that it will be confiscated.
CONFISCATEE. One whose property has been
seized and sold under a confiscation act, e. g., for
unpaid taxes. See Brent v. New Orleans, 41. La.
Ann. 1098, 6 So. 793.
CONFISCATION, The act of confiscating; or of
condemning and adjudging to the public treasury.
"Confiscation" is to be distinguished from "condemna-
tion" as prize. The former is the act of the sovereign
against a rebellious subject; the latter is the act of a bel-
ligerent against another belligerent. Confiscation may be
effected by such means, summary or arbitrary, as the sov-
ereign, expressing its will through lawful channels, may
please to adopt. Condemnation as prize can only be made
in accordance with principles of law recognized in the com-
mon jurisprudence of the world. Both are proceedings in
rem, but confiscation recognizes the title of the original
owner to the property, while in prize the tenure of the
property is qualified, provisional, and destitute of absolute
ownership. Winchester v. U. S., 14 Ct.C1. 48.
CONFISCATORY RATES. For utility are rates
which do not afford net return sufficient to pre-
serve utility's property and to attract capital nec-
essary to enable utility to discharge its public
duties. Wichita Gas Co. v. Public Service Commis-
sion of Kansas, D.C.Kan., 2 F.Supp. 792, 799.
Rates which do not afford a reasonable return on
value of property at time it is used in public serv-
ice. State v. Tri-State Telephone and Telegraph
Co., 204 Minn. 516, 284 N.W. 294, 305.
CONFISCATION ACTS. Certain acts of congress,
enacted during the progress of the civil war (1861
and 1862) in the exercise of the war powers of the
government and meant to strengthen its hands
and aid in suppressing the rebellion, which author-
ized the seizure, condemnation, and forfeiture of
"property used for insurrectionary purposes."
Semmes v. U. S., 91 U.S. 27, 23 L.Ed. 193.
CONFISCATION CASES. The name given to a
group of fifteen cases decided by the United States
supreme court in 1868, on the validity and con-
struction of the confiscation acts of congress. Re-
ported in 7 Wall. 454, 19 L.Ed. 196.
CONFISK. An old form of confiscate.
CONFITENS REUS. An accused person who ad-
mits his guilt.
CONFLICT OF LAWS. Inconsistency or differ-
ence between the municipal laws of different
states or countries, arising in the case of persons
who have acquired rights or a status, or made
contracts, or incurred obligations, within the ter-
ritory of two or more jurisdictions. Hence, that
branch of jurisprudence, arising from the diver-
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CONFLICT
sity of the laws of different nations, states or
jurisdictions, in their application to rights and
remedies, which reconciles the inconsistency, or
decides which law or system is to govern in the
particular case, or settles the degree of force to
be accorded to the law of another jurisdiction,
(the acts or rights in question having arisen un-
der it,) either where it varies from the domestic
law, or where the domestic law is silent or not
exclusively applicable to the case in point. In
this sense it is often called "private international
law," a term adopted by Westlake, by Woolsey,
Internatl. Law (5th Ed.) § 73, and others, and
characterized as "handy and manageable," but at
bottom inaccurate, by Dicey, Conflict of Laws,
Moore's Ed. 12, who points out that the defect of
the name "Conflict of Laws" is that the supposed
conflict is fictitious and never really takes place,
and that the expression has the further radical
defect of concealing from view the circumstance
that the question by the law of what country a
given transaction shall be governed is often too
plain to admit of doubt. If, he says, the term
applies to the conflict in the mind of a judge as
to which of two systems of law should govern a
given case, this amounts simply to saying that
the term "conflict of laws" may be used as an in-
accurate equivalent for the less objectionable
phrase "choice of laws." Taylor, Jurisprudence,
611, after considering the opinion of many writers,
concludes that the term "private international
law" is subject to many objections. Holland, Jur-
isprudence, 410, considers it "wholly indefensible,"
as does Gray, Nature, etc., of the Law, 124. Pol-
lock, First Book of Jurispr. 99, prefers the Ger-
man term—Internationales Privatrecht.
CONFLICT OF PRESUMPTIONS. In this con-
flict certain rules are applicable, viz.: (1) Special
take precedence of general presumptions; (2)
constant of casual ones; (3) presume in favor of
innocence; (4) of legality; (5) of validity; and,
when these rules fail, the matter is said to be at
large. Brown.
CONFLICTING EVIDENCE. It has been said
that there is not, in a legal sense, a conflict of
evidence unless there is a possibility that men of
ordinary reason and fairness would feel justified
in drawing different conclusions from the evi-
dence before them. Seeley v. Osborne, 220 N.Y.
416, 116 N.E. 97.
CONFORMITY. Correspondence in form, man-
ner, or use; agreement; harmony; congruity.
Reasonover v. Reasonover, 122 Tex. 512, 58 S.W.
2d 817, 819.
English Ecclesiastical Law
Adherence to the doctrines and usages of the
Church of England.
CONFORMITY ACT, or STATUTE. A term used
to designate Act June 1, 1872, c. 255, § 5, 17 Stat.
197, whence was derived Rev. St. U. S. § 914 pro-
viding that the practice, pleadings, and forms and
modes of proceeding in civil causes, other than
equity and admiralty causes, in the federal dis-
trict courts shall conform, as near as may be, to
those existing in like causes in the courts of the
state within which such district courts are held.
Since the adoption of the Federal Rules of Civil
Procedure, 28 U.S.C.A., the Conformity Act is no
longer effective. De Rosmo v. Feeny, 1941, 38 F.
Supp. 834; Hydraulic Press Mfg. Co. v. Williams,
White & Co., C.C.A.I11.1947, 165 F.2d 489.
CONFORMITY, BILL OF. See Bill of Conformity.
CONFRAIRIE. Fr. In old English law. A fra-
ternity, brotherhood, or society. Cowell.
CONFRERES. Brethren in a religious house;
fellows of one and the same society. Cowell.
CONFRONTATION. In criminal law, the act of
setting a witness face to face with the prisoner,
in order that the latter may make any objection
he has to the witness, or that the witness may
identify the accused. State v. Behrman, 114 N.C.
797, 19 S.E. 220, 25 L.R.A. 449.
The constitutional right of confrontation does not mean
merely that witnesses are to be made visible to the ac-
cused, but imports the constitutional privilege to croois-ex-
amine them. State v. Crooker, 123 Me. 310, 122 A. 865, 866,
33 A.L.R. 821.
CONFUSIO. In the civil law. The inseparable
intermixture of property belonging to different
owners; it is properly confined to the pouring
together of fluids, but is sometimes also used of a
melting together of metals or any compound
formed by the irrecoverable commixture of dif-
ferent substances.
It is distinguished from commixtion by the fact that in
the latter case a separation may be made, while in a case
of confusio there cannot be. 2 Bl.Comm. 405.
CONFUSION. This term, as used in the civil law
and in compound terms derived from that source,
means a blending or intermingling, and is equiva-
lent to the term "merger" as used at common law.
Palmer v. Burnside, 1 Woods, 182 Fed. Cas. No.
10,685.
CONFUSION OF BOUNDARIES. The title of
that branch of equity jurisdiction which relates
to the discovery and settlement of conflicting, dis-
puted, or uncertain boundaries.
CONFUSION OF DEBTS. A mode of extinguish-
ing a debt, by the concurrence in the same person
of two qualities or adverse rights to the same
thing which mutually destroy each other. This
may occur in several ways, as where the creditor
becomes the heir of the debtor, or the debtor the
heir of the creditor, or either accedes to the title
of the other by any other mode of transfer.
Woods v. Ridley, 11 Humph. (Tenn.) 198.
CONFUSION OF GOODS. The inseparable in-
termixture of property belonging to different own-
ers; properly confined to the pouring together of
fluids, but used in a wider sense to designate any
indistinguishable compound of elements belonging
to different owners. The term "confusion" is ap-
plicable to a mixing of chattels of one and the
same general description, differing thus from "ac-
cession," which takes place where various ma-
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CONJECTURE
terials are united in one product. Confusion of
goods arises wherever the goods of two or more
persons are so blended as to have become undis-
tinguishable. 1 Schouler, Pers. Prop. 41. Barker
v. Stearns Coal & Lumber Co., 291 Ky. 184, 163
S.W.2d 466, 471.
CONFUSION OF RIGHTS. A union of the quali-
ties of debtor and creditor in the same person.
The effect of such a union is, generally, to extin-
guish the debt. 1 Salk. 306; Cro. Car. 551; 1 Ld.
Raym. 515. 5 Term 381; Comyns, Dig. Baron et
Feme (D) ; Baylor University v. Bradshaw, Tex.
Civ.App., 52 S.W.2d 1094, 1101.
CONFUSION OF TITLES. A civil-law expression,
synonymous with "merger," as used in the com-
mon law, applying where two titles to the same
property unite in the same person. Palmer v.
Burnside, 1 Woods, 179, Fed. Cas, No. 10,685.
CONFUTE. To prove to be false, defective, or
invalid. Wiley v. Baker, 219 Mich. 629, 190 N.W.
273, 278.
CONGA. Fr. In French law. Permission, leave,
license; a passport or clearance to a vessel; a
permission to arm, equip, or navigate a vessel.
CONGA D'ACCORDER. Leave to accord. A per-
mission granted by the court, in the old process of
levying a fine, to the defendant to agree with the
plaintiff. Termes de la Ley; Cowell. See Licen-
tia Concordandi; 2 Bla.Comm. 350.
CONGA D'EMPARLER. Leave to imparl. The
privilege of an imparlance, (licentia loquendi.) 3
Bl.Comm. 299.
CONGA D'ESLIRE. Also spelled conge d'elire,
conge dèlire. Cowell; Termes de la Ley; 1 Bla.
Comm. 379, 382. A permission or license from the
British sovereign to a dean and chapter to elect a
bishop, in time of vacation; or to an abbey or
priory which is of royal foundation, to elect an
abbot or prior.
CONGEABLE. L. Fr. Lawful; permissible; al-
lowable. "Disseisin is properly where a man en-
tereth into any lands or tenements where his en-
try is not congeable, and putteth out him that
hath the freehold." Litt. § 279. See Ricard v.
Williams, 7 Wheat. 107, 5 L.Ed. 398.
CONGILDONES. In Saxon law. Fellow-members
of a guild.
CONGIUS. An ancient measure containing about
a gallon and a pint. Cowell.
CONGREGATE. To come together; to assemble;
to meet. Board of Health of City of Paterson v.
Clayton, 93 N.J.L. 64, 106 A. 813, 814.
CONGREGATION. An assembly or gathering;
specifically, an assembly or society of persons
who together constitute the principal supporters
of a particular parish, or habitually meet at the
same church for religious exercises. Laird v.
State, 69 Tex.Cr.R. 553, 155 S.W. 260, 262.
Ecclesiastical Law
Certain bureaus at Rome, where ecclesiastical
matters are attended to.
CONGREGATIONAL SYSTEM OF CHURCH OR-
GANIZATION. Where the local organization is
the governing body and is sufficient unto itself.
Doughty v. Herr, 97 Ind.App. 427, 185 N.E. 657,
658.
CONGRESS. In International Law. An assembly
of envoys, commissioners, deputies, etc., from dif-
ferent sovereignties who meet to concert measures
for their common good, or to adjust their mutual
concerns.
In American Law. The legislative assembly of
the United States, composed of the senate and
house of representatives (q. v.). U. S. Const. art.
1, § 1.
CONGRESSMAN. Strictly, a member of the Con-
gress of the United States. But there is a strong
tendency in popular usage to apply this term only
to a member of the House of Representatives, as
distinguished from a senator. State v. Kopriva,
49 N.D. 1040, 194 N.W. 704, 705.
CONGRESSUS. The extreme practical test of the
truth of a charge of impotence brought against a
husband by a wife. It is now disused. Causes
Celêbres, 6, 183.
CONJECTIO. In the civil law of evidence. A
throwing together. Presumption; the putting of
things together, with the inference drawn there-
from.
CONJECTIO CAUSE. In the civil law. A state-
ment of the case. A brief synopsis of the case
given by the advocate to the judge in opening the
trial. Calvin.
CONJECTURAL CHOICE, RULE OF. Where all
theories of causation rest only on conjecture, no
jury question is presented. Cummings v. Grand
Trunk Western R. Co., 127 N.W.2d 842, 844, 372
Mich. 695.
CONJECTURE. A slight degree of credence, aris-
ing from evidence too weak or too remote to cause
belief. Weed v. Scofield, 73 Conn. 670, 49 A. 22-,
1 Mascardus, De Prob. qust. 14, n. 14. Supposi-
tion or surmise. The idea of a fact, suggested by
another fact; as a possible cause, concomitant, or
result. Burrill, Circ. Ev. 27. An idea or notion
founded on a probability without any demonstra-
tion of its truth; an idea or surmise inducing a
slight degree of belief founded upon some possible,
or perhaps probable fact of which there is no posi-
tive evidence. Oklahoma City v. Wilcoxson, 173
Okl. 433, 48 P.2d 1039, 1043. An explanation con-
sistent with but not deducible as a reasonable in-
ference from known facts or conditions. Southern
Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665, 669.
In popular use, synonymous with "guess." Fed-
orawicz v. Citizens' Electric Illuminating Co., 246
Pa. 141, 92 A. 124, 125.
Also, the bringing together of the circumstanc-
es, as well as the result obtained. Reynolds v.
Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128,
1133.
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CONJOINT
CONJOINT ROBBERY. Where the act is com-
mitted by two or more persons. Patterson V.
State, 78 Okl.Cr. 244, 147 P.2d 179, 184.
CONJOINTS. Persons married to each other.
Story, Confl. Laws, § 71; Wolffius, Droit de la Nat.
§ 858.
CONJUDEX. In old English law. An associate
judge. Bract. 403.
CONJUGAL. Of or belonging to marriage or the
married state; suitable or appropriate to the mar-
ried state or to married persons; matrimonial;
connubial. Swanson v. Swanson, 20 A.2d 617, 618,
128 Conn. 128, 135 A.L.R. 849.
CONJUGAL RIGHTS. Matrimonial rights; the
right which husband and wife have to each other's
society, comfort, and affection.
CONJUGIUM. One of the names of marriage,
among the Romans. Tayl. Civil Law, 284.
CONJUNCT. In Scotch law. Joint.
CONJUNCTA. In the civil law. Things joined
together or united; as distinguished from dis-
juncta, things disjoined or separated. Dig. 50, 16,
53.
CONJUNCTIM. Lat. In old English law. Joint-
ly. Inst. 2, 20, 8.
CONJUNCTIM ET DIVISIM. L. Lat. In old Eng-
lish law. Jointly and severally.
CONJUNCTIO. In the civil law. Conjunction;
connection of words in a sentence. See Dig. 50,
16, 29, 142.
CONJUNCTIO MARITI ET FEMIN1E EST DE
JURE NATURAE. The union of husband and wife
is of the law of nature.
CONJUNCTIVE. Connecting in a manner denot-
ing union.
A grammatical term for particles which serve
for joining or connecting together. Thus, the
word "and" is called a "conjunctive," and "or" a
"disjunctive," conjunction.
CONJUNCTIVE DENIAL. Where several mater-
ial facts are stated conjunctively in the complaint,
an answer which undertakes to deny their aver-
ments as a whole, conjunctively stated, is called a
"conjunctive denial." Doll v. Good, 38 Cal. 287.
CONJUNCTIVE OBLIGATION. See Obligation.
CONJURATIO. In Old English Law. A swearing
together; an oath administered to several toge-
ther; a combination or confederacy under oath.
Cowell.
In Old European Law. A compact of the in-
habitants of a commune, or municipality, con-
firmed by their oaths to each other and which
was the basis of the commune. Steph. Lect. 119.
CONJURATION. In old English law. A plot or
compact made by persons combining by oath to
do any public harm. Cowell.
The offense of having conference or commerce
with evil spirits, in order to discover some secret,
or effect some purpose. Cowell.
Classed by Blackstone with witchcraft, enchantment, and
sorcery, but distinguished from each of these by other
writers. 4 BI.Comm. 60; Cowell. Cooper v. Livingston,
19 Fla. 693; Mozley & W. Law Diet.
CONJURATOR. In old English law. One who
swears or is sworn with others; one bound by
oath with others; a compurgator; a conspirator.
CONNECT. To join or fasten together as by
something intervening; to associate as in occur-
rence or in idea; to combine; to unite or link
together, as in an electrical circuit; to establish
a bond or relation between; to meet or make con-
nections for transference of passengers or change
of means of communication. City of Indepen-
dence v. Board of Com'rs of Montgomery County,
140 Kan. 661, 38 P.2d 105.
CONNECTED. Joined; united by junction, by an
intervening substance or medium, by dependence
or relation, or by order in a series. State v. Pat-
terson, 95 S.C. 463, 79 S.E. 309, 310.
With reference to buildings, the term does not generally
denote such a close union as is implied by the word "at-
tached" or "annexed," but rather signifiez the connection
effected by a flume; Plattsburg Gas & Electric Co. v. Mill-
er, 206 N.Y.S. 42, 45, 123 Misc. 651; or by piping or tele-
phone connections; Williams Mfg. Co. v. Insurance Co. of
North America, 93 Vt. 161, 106 A. 657, 659.
A counterclaim, to be "connected" with the subject of
the action, must be directly connected, so that the parties
could be supposed to have foreseen and contemplated it in
their mutual acts. Haberle-Crystal Spring Brewing Co. v.
Handrahan, 165 N.Y.S. 251, 255, 100 Misc. 163; Placerville
Gold Mining Co. v. Beal, 168 Cal. 682, 144 P. 748, 749.
As used in the Act to Regulate Commerce (Act Feb. 4,
1887, c. 104, § 15, 24 Stat. 384), as amended by Act June
29, 1906, c. 3591, § 4, 34 Stat. 589 (49 USCA § 15), "connect-
ed with" transportation means "a part of" transportation.
New York Cent. & H. R. R. Co. v. General Electric Co., 146
N.Y.S. 322, 327, 83 Misc. 529.
CONNECTION. The state of being connected or
joined; union by junction, by an intervening sub-
stance or medium, by dependence or relation, or
by order in a series. State v. Patterson, 95 S.C.
463, 79 S.E. 309, 310. Annernen v. Penn, Cust. &
Pat.App., 69 F.2d 653, 654.
A contract for a connection between railroads means a
physical joining of the rails so as to permit trains to pass.
from one set of rails to the other. Philip A. Ryan Lumber
Co. v. Ball, Tex.Civ.App., 197 S.W. 1037, 1038. See, also,
State v. Babcock, 161 Minn. 80, 200 N.W. 843, 844; Raynor
v. New York & L. I. Traction Co., 149 N.Y.S. 151, 155, 86.
Misc. 201.
CONNECTIONS. Relations by blood or marriage,
but more commonly the relations of a person with
whom one is connected by' marriage. In this
sense, the relations of a wife are "connections"
of her husband. The term is vague and indefinite.
See Storer v. Wheatley, 1 Pa. 507.
CONNEXITE. In French law. This exists when
two actions are pending which, although not iden-
tical as in lis pendens, are so nearly similar in,
object that it is expedient to have them both ad-
judicated upon by the same judges. Arg. Fr.
Merc. Law, 553.
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CONSANGUINITY
CONNIVANCE. The secret or indirect consent or
permission of one person to the commission of an
unlawful or criminal act by another. State v.
Gesell, 124 Mo. 531, 27 S.W. 1101. A winking at;
voluntary blindness; an intentional failure to dis-
cover or prevent the wrong; forbearance or pas-
sive consent. Pierce v. Crisp, 260 Ky. 519, 86 S.
W.2d 293, 296.
The corrupt consent of one party to the com-
mission of the acts of the other constituting the
cause of divorce. Dennis v. Dennis, 36 A. 34, 68
Conn. 186, 34 L.R.A. 449, 57 Am.St.Rep. 95; Man-
ville v. Manville, Mo.App., 81 S.W.2d 382, 388.
A corrupt intent is essential. Ratcliff v. Rat-
cliff, 221 Mo.App. 944, 288 S.W. 794, 796. But see
Leavitt v. Leavitt, 229 Mass. 196, 118 N.E. 262, and
33 L.J.Mat.Cas. 161.
Connivance differs from condonation, though the same
legal consequences may attend it. Connivance necessarily
involves criminality on the part of the individual who con-
nives; condonation may take place without imputing the
slightest blame to the party who forgives the injury. Con-
nivance must be the act of the mind before the offense has
been committed; condonation is the result of a deter-
mination to forgive an injury which was not known until
after it was inflicted. Turton v. Turton, 3 Hagg.Eccl. 350.
Connivance differs, also, from collusion ; the former is
generally collusion for a particular purpose, while the lat-
ter may exist without connivance. 3 Hagg.Eccl. 130.
CONNIVE. To co-operate secretly with, or to
have a secret or clandestine understanding with.
People v. Munday, 293 Ill. 191, 127 N.E. 364, 368.
To take part or co-operate privily with another,
to aid or abet. People v. Munday, 215 Ill.App.
356, 377. To look upon with secret favor; it im-
plies both knowledge and assent, either active or
passive. State v. Furth, 82 Wash. 665, 144 P. 907,
910.
CONNOISSEMENT. In French law. An instru-
ment, signed by the master of a ship or his agent,
containing a description of the goods loaded on
a ship, the persons who have sent them, the per-
sons to whom they were sent, and the undertak-
ing to transport them;—similar to the English
and American bill of lading. Guyot, Repert.
Univ.; Ord. de la Marine,l. 3, t. 3, art. 1.
CONNUBIUM. In the civil law. Marriage.
Among the Romans, a lawful marriage as dis-
tinguished from "concubinage" (q. v.), an inferior
marriage.
CONOCIAMENTO. In Spanish law. A recogniz-
ance. White, New Recop. b. 3, tit. 7, c. 5, § 3.
CONOCIMIENTO. In Spanish law. A bill of
lading. In the Mediterranean ports it is called
"poliza de cargamiento."
CONPOSSESSIO. In modern civil law. A joint
possession. Mackeld. • Rom. Law, § 245.
CONQUEREUR. In Norman and old English law.
The same as "conqueror" (q. v.) .
CONQUEROR. In old English and Scotch law.
The first purchaser of an estate; he who first
brought an estate into his family, or into the
family owning it. 2 Bl.Comm. 242, 243.
CONQUEST. In feudal law. Conquest; acquisi-
tion by purchase; any method of acquiring the
ownership of an estate other than by descent. Al-
so an estate acquired otherwise than by inherit-
ance.
In international law. The acquisition of the
sovereignty of a country by force of arms, exer-
cised by an independent power which reduces the
vanquished to the submission of its empire. Cas-
tillero v. U. S., 2 Black, 109, 17 L.Ed. 360; Ameri-
can Ins. Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242.
In Scotch law. Purchase. Bell.
CONQUESTOR. Conqueror. The title given to
William of Normandy.
CONQUETS. In French law. The name given to
every acquisition which the husband and wife,
jointly or severally, make during the conjugal
community. Thus, whatever is acquired by the
husband and wife, either by his or her industry
or good fortune, inures to the extent of one-half
for the benefit of the other. Merl. Repert. "Con-
que't" ; Merl. Quest., "Conquet." Picotte v. Cooley,
10 Mo. 312. In Louisiana, these gains are called
acqudts.
CONQUISITIO. In feudal and old English law.
Acquisition. 2 Bl.Comm. 242.
CONQUISITOR. In feudal law. A purchaser,
acquirer, or conqueror. 2 Bl.Comm. 242, 243.
CONSANGUINEUS. Lat. A person related by
blood; a person descended from the same com-
mon stock.
CONSANGUINEUS EST QUASI EODEM SAN-
GUINE NATUS. Co. Litt. 157. A person related
by consanguinity is, as it were, sprung from the
same blood.
CONSANGUINEUS FRATER. In civil and.feudal
law. A half-brother by the father's side, as dis-
tinguished from frater uterinus, a brother by the
mother's side. 2 Bla.Comm. 231.
CONSANGUINITY. Kinship; blood relationship;
the connection or relation of persons descended
from the same stock or common ancestor. 2 Bl.
Comm. 202; Rector v. Drury, 3 Pin. (Wis.) 298;
Sweezey v. Willis, 1 Brad.Surr.R. (N.Y.) 495.
Consanguinity is distinguished from "affinity," which is
the connection existing in consequence of a marriage, be-
tween each of the married persons and the kindred of the
other. Sizemore v. Commonwealth, 210 Ky. 637, 276 S.W.
524, 525.
Lineal and Collateral Consanguinity
Lineal consanguinity is that which subsists be-
tween persons of whom one is descended in a
direct line from the other, as between son, father,
grandfather, great-grandfather, and so upwards
in the direct ascending line; or between son,
grandson, great-grandson, and so downwards in
the direct descending line. Collateral consan-
guinity is that which subsists between persons who
have the same ancestors, but who do not descend
(or ascend) one from the other. Thus, father and
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CONSCIENCE'
son are related by lineal consanguinity, uncle and
nephew by collateral consanguinity. 2 Bl.Comm,
203; Capps v. State, 87 Fla. 388, 100 So. 172, 173.
CONSCIENCE. The moral sense; the faculty of
judging the moral qualities of actions, or of dis-
criminating between right and wrong; particular.
ly applied to one's perception and judgment of
the moral qualities of his own conduct, but in a
wider sense, denoting a similar application of the
standards of morality to the acts of others. The
sense of right and wrong inherent in every person
by virtue of his existence as a social entity; good
conscience being a synonym of equity. Van Graa-
fieland v. Wright, 286 Mo. 414, 228 S.W. 465, 469.
In law, especially the moral rule which requires
probity, justice, and honest dealing between man
and man, as when we say that a bargain is
"against conscience" or "unconscionable," or that
the price paid for property at a forced sale was
so inadequate as to "shock the conscience." This
is also the meaning of the term as applied to the
jurisdiction and principles of decision of courts
of chancery, as in saying that such a court is a
"court of conscience," that it proceeds "according
to conscience," or that it has cognizance of "mat-
ters of conscience." See 3 Bl.Comm. 47-56;
People v. Stewart, 7 Cal. 143; Miller v. Miller,
187 Pa. 572, 41 A. 277.
As an element of equitable jurisdiction it is not the priv-
ate opinion of an individual court, but is rather to be re-
garded as a metaphorical term, designating the common
standard of civil right and expediency combined, based up-
on general principles and limited by established doctrines,
to which the court appeals and by which it tests the con-
duct and rights of suitors. National City Bank of New
York v. Gelfert, 284 N.Y. 13, 29 N.E.2d 449, 452.
CONSCIENCE OF THE COURT. When an issue
is sent (Alt of chancery to be tried at law, to "in-
form the conscience of the court," the meaning
is that the court is to be supplied with exact and
dependable information as to the unsettled or
disputed questions of fact in the case, in order
that it may proceed to decide it in accordance
with the principles of equity and good conscience
in the light of the facts thus determined. Watt
v. Starke, 101 U.S. 252, 25 L.Ed. 826.
CONSCIENCE, COURTS OF. Courts, not of rec-
ord, constituted by act of parliament in the city of
London, and other towns, for the recovery of
small debts; otherwise and more commonly call-
ed "Courts of Requests." 3 Steph.Comm. 451.
CONSCIENCE, RIGHT OF. As used in some con-
stitutional provisions, this phrase is equivalent to
religious liberty or freedom of conscience. Com.
v. Lesher, 17 Serg. & R. (Pa.) 155; State v. Cum-
mings, 36 Mo. 263.
CONSCIENTIA DICITUR A CON ET SCIO,
QUASI SCIRE CUM DEO. 1 Coke, 100. Con-
science is called from con and scio, to know, as it
were, with God.
CONSCIENTIA REI ALIENI. In Scotch law.
Knowledge of another's property; knowledge that
a thing is not one's own, but belongs to another.
He who has this knowledge, and retains posses-
sion, is chargeable with "violent profits."
CONSCIENTIOUS OBJECTOR. One who, by rea-
son of religious training and belief, is conscien-
tiously opposed to participation in war. Selec-
tive Training & Service Act of 1940, § 5(g), 50
U.S.C.A. App., § 305(g). U. S. v. Kauten, C.C.A.
N.Y., 133 F.2d 703.
One conscientiously opposed on religious grounds to par-
ticipation in war need not be a member of a religious sect
whose creed forbids participation in war to be entitled to
classification as a conscientious objector. U. S. v. Bowles,
C.C.A.N.J., 131 F.2d 818. It is sufficient if he has a con-
scientious scruple against war in any form. U. S. ex rel.
Phillips v. Downer, C.C.A.N.Y., 135 F.2d 521, 524, 525.
CONSCIENTIOUS SCRUPLE. A conscientious
scruple against taking an oath, serving as a juror
in a capital case, doing military duty, or the like,
is an objection or repugnance growing out of the
fact that the person believes the thing demanded
of him to be morally wrong, his conscience being
the sole guide to his decision; it is thus distin-
guished from an "objection on principle," which is
dictated by the reason and judgment, rather than
the moral sense, and may relate only to the pro-
priety or expediency of the thing in question.
People v. Stewart, 7 Cal. 143.
CONSCRIPTION. Drafting into the military
service of the state; compulsory military service
falling upon all male subjects evenly, within or
under certain specified ages. Kneedler v. Lane,
45 Pa. 267. Certain classes, however, may be ex-
empt, and drafted men are sometimes released
upon furnishing acceptable substitutes or by the
payment of a sum of money. Davis, Mil. Law 51.
CONSECRATE. In ecclesiastical law. To dedi-
cate to sacred purposes, as a bishop by imposition
of hands, or a church or churchyard by prayers,
etc. Consecration is performed by a bishop or
archbishop.
CONSECRATIO EST PERIODUS ELECTIONIS;
ELECTIO EST PRZEAMBULA CONSECRATION-
IS. 2 Rolle, 102. Consecration is the termination
of election; election is the preamble of consecra-
tion.
CONSECUTIVE. Successive; succeeding one an-
other in regular order. Walsworth v. Casassa,
219 Mass. 200, 106 N.E. 847; to follow in uninter-
rupted succession. People v. Hirschbein, 60 P.2d
532, 16 Cal.App.2d 458.
CONSEDO. Sp. A term used in conveyances un-
der Mexican law, equivalent to the English word
"grant." Mulford v. Le Franc, 26 Cal. 103.
CONSEIL D'ETAT. Council of state. One of the
oldest of French institutions, its origin dating
back to 1302. It decides or advises upon state
questions and measures proposed for legislation,
submitted to it by the President of the Republic,
by the members of the Cabinet, and by Parlia-
ment. Coxe, Manual of French Law.
CONSEIL DE FAMILLE. In French law. A fam-
ily council. Certain acts require the sanction of
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CONSENT
this body. For example, a guardian can neither
accept nor reject an inheritance to which the
minor has succeeded without its authority, (Code
Nap. 461;) nor can he accept for the child a gift
inter vivos without the like authority, (Code Nap.
463.)
CONSEIL DE PRUDHOMMES. In French law.
One of a species of trade tribunals, charged with
settling differences between masters and work-
men. They endeavor, in the first instance, to con-
ciliate the parties. In default, they adjudicate
upon the questions in dispute. Their decisions are
final up to 200f. Beyond that amount, appeals
lie to the tribunals of commerce. Arg. Fr. Merc.
Law, 553.
CONSEIL JUDICIAIRE. In French law. When
a person has been subjected to an interdiction on
the ground of his insane extravagance, but the
interdiction is not absolute, but limited only, the
court of first instance, which grants the interdic-
tion, appoints a council, called by this name, with
whose assistance the party may bring or defend
actions, or compromise the same, alienate his es-
tate, make or incur loans, and the like. Brown.
CONSENSUAL CONTRACT. A term derived
from the civil law, denoting a contract founded
upon and completed by the mere consent of the
contracting parties, without any external formal-
ity or symbolic act to fix the obligation.
CONSENSUAL MARRIAGE. Marriage resting
simply on consent per verba de prsenti, between
competent parties. Such marriage is valid. Fish-
er v. Fisher, 250 N.Y. 313, 165 N.E. 460, 461, 61 A.
L.R. 1523. See, also, Common-law Marriage.
CONSENSUS AD IDEM. An agreement of par-
ties to the same thing; a meeting of minds.
CONSENSUS EST VOLUNTAS PLURIUM AD
QUOS RES PERTINET, SIMUL JUNCTA. Lofft,
514. Consent is the conjoint will of several per-
sons to whom the thing belongs.
CONSENSUS FACIT LEGEM. Consent makes
the law. (A contract is law between the parties
agreeing to be bound by it.) Branch, Princ.
CONSENSUS, NON CONCUBITUS, FACIT NUP-
TIA S VEL MATRIMONIUM, ET CONSENTIRE
NON POSSUNT ANTE ANNOS NUBILES. 6
Coke, 22. Consent, and not cohabitation (or coi-
tion), constitutes nuptials or marriage, and per-
sons cannot consent before marriageable years.
1 Bl.Comm. 434; Co. Litt. 33a; Dig. 50, 17, 30.
See 10 Cl. & F. 534; Broom, Max. 505.
CONSENSUS TOLLIT ERROREM. Co. Litt. 126.
Consent (acquiescence) removes mistake. 2 Inst.
123; Rogers v. Cruger, 7 Johns. (N.Y.) 611; Kuh-
ler v. Hoover, 4 Pa. 335; Wilkinson's Appeal, 65
Pa. 190,
CONSENSUS VOLUNTAS MULTOR UM AD
QUOS RES PERTINET, SIMUL JUNCTA. Con-
sent is the united will of several interested in one
subject-matter. Davis, 48; Branch, Princ,
CONSENT. A concurrence of wills. Voluntarily
yielding the will to the proposition of another;
acquiescence or compliance therewith. Twin
Ports Oil Co. v. Pure Oil Co., D.C.Minn., 26 F.Supp.
366, 371. Agreement; the act or result of coming
into harmony or accord. Glantz v. Gabel, 66
Mont. 134, 212 P. 858, 860.
Consent is an act of reason, accompanied with delibera-
tion, the mind weighing as in a balance the good or evil on
each side. 1 Story, Eq.Jur. § 222; Lervick v. White Top
Cabs, La.App., 10 So.2d 67, 73. It means voluntary agree-
ment by a person in the possession and exercise of suffi-
cient mentality to make an intelligent choice to do some-
thing proposed by another. People v. Kangiesser, 44 Cal.
App. 345, 186 P. 388, 389. It supposes a physical power to
act, a moral power of acting, and a serious, determined,
and free use of these powers. Fonblanque, Eq. b. 1, c. 2,
s. 1; New Jersey Mfrs' Casualty Ins. Co., 148 A. 790, 791,
106 N.J.L. 238. Consent is implied in every agreement. It
is an act unclouded by fraud, duress, or sometimes even
mistake. Heine v. Wright, 76 Cal.App. 338, 244 P. 955, 956.
There is a difference between consenting and submitting.
Every consent involves a submission; but a mere submis-
sion does not necessarily involve consent. 9 Car. & P. 722.
"Consent" is an active acquiescence as distinguished
from "assent," meaning a silent acquiescence. People v.
Lowe, 205 N.Y.S. 77, 78, 209 App.Div. 498. "Consent"
means an active circumstance of concurrence; "assent" is
a passive act of concurrence before another does the act
charged. Perryman v. State, 63 Ga.App. 819, 12 S.E.2d
388, 390. But the two terms may be used interchangeably.
Bartlett v. Sundin, 169 N.Y.S. 391, 393, 182 App.Div. 117.
"Consent" is sometimes synonymous merely with "waiv-
er." Dahlquist v. Denver & R. G. R. Co., 52 Utah, 438, 174
P. 833, 844. See, also, Seegmiller v. Day, C.C.A.Ill., 249 F.
177, 178; Toledo Fence & Post Co. v. Lyons, C.C.A.Ohio,
290 F. 637, 640.
As used in the law of rape "consent" means consent of
the will, and submission under the influence of fear or ter-
ror cannot amount to real consent. Hallmark v. State, 22
Okl. Cr. 422, 212 P. 322, 328. There must be an exercise
of intelligence based on knowledge of its significance and
moral quality and there must be a choice between resist-
ance and assent. State v. Schwab, 109 Ohio St. 532, 143 N.
E. 29, 31. And if woman resists to the point where further
resistance would be useless or until her resistance is over-
come by force or violence, submission thereafter is not
"consent". People v. Mcllvain, 130 P.2d 131, 135, 55 Cal.
App.2d 322.
See Assent.
Consent decree. See Decree.
Consent judgment. See Judgment.
Express Consent. That directly given, either
viva voce or in writing. It is positive, direct, un-
equivocal consent, requiring no inference or im-
plication to supply its meaning. Pacific Nat. Ag-
ricultural Credit Corporation v. Hagerman, 40
N.M. 116, 55 P.2d 667, 670.
Express or Implied Consent. Under motor ve-
hicle liability insurance law providing that policy
should cover any person responsible for operation
of insured vehicle with insured's express or im-
plied consent, words "express or implied consent"
primarily modify not the word "operation", but the
word "responsible", and imply possession of ve-
hicle with consent of owner and responsibility
to him. Hurley v. Flanagan, 313 Mass. 567, 48 N.
E.2d 621, 624.
Implied Consent. That manifested by signs, ac-
tions, or facts, or by inaction or silence, which
raise a presumption that the consent has been
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CONSENT
given. Avery v. State, 12 Ga.App. 562, 77 S.E.
892. See State v. Horton, 247 Mo. 657, 153 S.W.
1051, 1053; White v. White, 84 N.J.Eq. 512, 95 A.
197, 199.
CONSENT RULE. An entry of record by the de-
fendant, confessing the lease, entry, and ouster by
the plaintiff, in an action of ejectment. A super-
seded instrument, in which a defendant in an ac-
tion of ejectment specified for what purpose he
intended to defend, and undertook to confess not
only the fictitious lease, entry, and ouster, but that
he was in possession. See Ad.Eject. 233.
CONSENTIBLE LINES. See Line.
CONSENTIENTES ET AGENTES PARI PCENA
PLECTENTUR. They who consent to an act, and
they who do it, shall be visited with equal punish.
ment. 5 Coke 80.
CONSENTIRE MATRIMONIO NON POSSUNT
INFRA [ANTE] ANNOS NU'BILES. Parties can-
not consent to marriage within the years of mar-
riage, [before the age of consent.] 5 Coke 80;
6 Coke 22.
CONSEQUENCE. The result following in natural
sequence from an event which is adapted to pro-
duce, or to aid in producing, such result;—the
correlative of "cause." Board of Trustees of Fire-
men's Relief and Pension Fund for City of Tulsa
v. Miller, 186 Okl. 586, 99 P.2d 146, 147.
In Consequence of
This phrase has been used as equivalent to fhe
words, "in the event of." In re Spalding's Estate,
84 Cal.App. 371, 258 P. 154, 155.
CONSEQUENTLE NON EST CONSEQUENTIA.
Bac.Max. The consequence of a consequence ex-
ists not.
CONSEQUENTIAL CONTEMPT. The ancient
name for what is now known as "constructive"
contempt of court. Ex parte Wright, 65 Ind. 508.
See Contempt.
CONSEQUENTIAL DAMAGES. See Damages.
CONSEQUENTS. In Scotch law. Implied pow-
ers or authorities. Things which follow, usually
by implication of law. A commission being giv-
en to execute any work, every power necessary
to carry it on is implied. 1 Karnes, Eq. 242.
CONSERVATOR. A guardian; protector; pre-
server.
"When any person having property shall be found to be
incapable of managing his affairs, by the court of probate
in the district in which he resides, * * * it shall appoint
some person to be his conservator, who, upon giving a pro-
bate bond, shall have the charge of the person and estate of
such incapable person." Gen.St.Conn.1875, p. 346, § 1
(Gen.St.1930, § 4815) ; Hutchins v. Johnson, 12 Conn. 376,
30 Am. Dec. 622.
One whose business it is to attend to the en-
forcement of certain statutes. See Conservators
of the Peace, infra.
One whose duty requires him to prevent and arrest for
breaches of the peace in his presence, but not to arraign
and try for them. Marcuchi v. Norfolk & W. Ry. Co., 81
W.Va. 548, 94 S.E. 979, 980.
A delegated umpire or standing arbitrator,
chosen to compose and adjust difficulties arising
between two parties. Cowell.
CONSERVATOR TRUCIS. Lat. An official ap-
pointed under an English act of 1414 passed to
prevent breaches of truces made, or of safe con-
ducts granted, by the king. 2 Holdsw.Hist.E.L.
392; 4 Bla.Comm. 69.
CONSERVATORS OF RIVERS. Commissioners
or trustees in whom the control of a certain river
is vested, in England, by act of parliament.
CONSERVATORS OF THE PEACE. Officers au-
thorized to preserve and maintain the public peace.
In England, these officers were locally elected by
the people until the reign of Edward III, when
their appointment was vested in the king. Their
duties were to prevent and arrest for breaches of
the peace, but they had no power to arraign and
try the offender until about 1360, when this au-
thority was given to them by act of parliament,
and ",then they acquired the more honorable appel-
lation of justices of the peace." 1 Bl.Comm. 351.
Even after this time, however, many public officers were
styled "conservators of the peace," not as a distinct office
but by virtue of the duties and authorities pertaining to
their offices. In this sense the term may include the king
himself, the lord chancellor, justices of the king's bench,
master of the rolls, coroners, sheriffs, constables, etc. 1
BI.Comm. 350. See Smith v. Abbott, 17 N.J.L. 358. In
Texas, the constitution provides that county judges shall
be conservators of the peace. Const.Tex. art. 4, § 15;
Jones v. State, Tex.Cr.App., 65 S.W. 92. The Constitution
of Delaware (1831) provides that: "The members of the
senate and house of representatives, the chancellor, the
judges, and the attorney-general shall, by virtue of their
offices, be conservators of the peace throughout the state;
and the treasurer, secretary, and prothonotaries, registers,
recorders, sheriffs, and coroners, shall, by virtue of their
offices, be conservators thereof within the counties respec-
tively in which they reside."
CONSERVE. To save from loss. U. S. v. Mam-
moth Oil Co., D.C.Wyo., 5 F.2d 330, 351.
CONSIDER. To fix the mind on, with a view to
careful examination; to examine; to inspect.
Eastman Kodak Co. v. Richards, 204 N.Y.S. 246,
248, 123 Misc. 83. To deliberate about and ponder
over. People v. Tru-Sport Pub. Co., 291 N.Y.S. 449,
457, 160 Misc. 628. To entertain or give heed to.
Rodolf v. Board of Com'rs of Tulsa County, 122
Okl. 120, 251 P. 740, 741. See, also, Considered.
CONSIDERABLE. Worthy of consideration; re-
quired to be observed. Gougar v. Buffalo Specialty
Co., 26 Colo.App. 8, 141 P. 511, 514.
A "considerable" number, as of persons, does not neces-
sarily mean a very great or any particular number of per-
sons; the term "considerable" being merely relative.
People v. Kings County Iron Foundry, 209 N.Y. 207, 102 N.
E. 598, 599.
CONSIDERATIO CURIAE. The judgment of the
court.
CONSIDERATION. Practice. A technical term
indicating that a tribunal has heard and judicially
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CONSIDERATION
determined matters submitted to it. Meaney v.
State Industrial Accident Commission, 113 Or, 371,
232 P. 789, 791.
Contracts
The inducement to a contract. The cause, mo•
tive, price, or impelling influence which induces a
contracting party to enter into a contract. The
reason or material cause of a contract. 2 Bla.
Comm. 443; Cassinelli v. Stacy, 238 Ky. 827, 38
S.W.2d 980, 983.
Consideration is not to be confounded with motive. Con-
sideration means something which is of value in the eye
of the law, moving from the plaintiff, either of benefit to
the plaintiff or of detriment to the defendant. Patteson,
J., in Langd.Sel.Cas.Contr. 168; s. c. 2 Q.B. 851; Miller
v. Bank of Holly Springs, 131 Miss. 55, 95 So. 129, 130, 31
A.L.R. 698. "Nothing is consideration that is not regard-
ed as such by both parties." Schlecht v. Schlecht, 168
Minn. 168, 209 N.W. 883, 887. And "price" and "considera-
tion," though sometimes the same, are not always identi-
cal. Oregon Home Builders v. Crowley, 87 Or. 517, 170 P.
718, 721.
The "inducement" for a contract is that which influences
the act, while "consideration" means the parting with
something by the one from whom it moves. E. F. Spears
& Sons v. Winkle, 186 Ky. 585, 217 S.W. 691, 692.
An act or forbearance, or the promise thereof,
which is offered by one party to an agreement, and
accepted by the other as an inducement to that
other's act or promise. Poll.Contr. 91.
Any benefit conferred, or agreed to be conferred,
upon the promisor, by any other person, to which
the promisor is not lawfully entitled, or any preju-
dice suffered, or agreed to be suffered, by such
person, other than such as he is at the time of
consent lawfully bound to suffer, as an induce-
ment to the promisor. Hence doing only of what
one is already under obligation to do is not "con-
sideration" for a contract. Hogan v. Supreme
Camp of the American Woodmen, 146 Fla. 413, 1
So.2d 256, 258.
Any act of the plaintiff (or the promisee) from
which the defendant (the promisor) or a stranger
derives a benefit or advantage, or any labor, detri-
ment, Jar inconvenience sustained by the plaintiff,
however small, if such act is performed or incon-
venience suffered by the plaintiff by the consent,
express or implied, of the defendant. 3 Scott, 250.
A benefit to the promisor, or a loss or detriment to the
promisee. Harris v. Johnson, 75 Wash. 291, 134 P. 1048,
1050; Fowler v. Smith, 24 Ohio App. 324, 156 N.E. 913, 914.
Or benefit to a third party. Wellshire Land Co. v. City and
County of Denver, 103 Colo. 416, 87 P.2d 1. But nothing is
"consideration" that is not regarded as such by both par-
ties. Michael v. Holland, 111 Ind. App. 34, 40 N.E.2d 362,
365.
Some right, interest, gain, advantage, benefit, or profit
to one party, usually the promisor, or some forbearance,
detriment, prejudice, inconvenience, disadvantage, loss, or
responsibility, act, or service given, suffered, or undertaken
by the promisee. Exum v. Lynch, 125 S.E. 15, 17, 188 N. C.
392; Furman University v. Waller, 117 S.E. 356, 358, 124 S.
C. 68, 33 A.L.R. 615; Robinson v. Oliver, 156 N.Y.S. 896,
898, 171 App. Div. 349; L.R. 10 Ex. 162; Train v. Gold, 5
Pick. (Mass.) 380; Bankers Trust Co. v. Economy Coal Co.,
224 Iowa 36, 276 N.W. 16, 20.
Considerations are either executed or executory;
express or implied; good or valuable. See defini-
tions infra.
Adequate Consideration, See Adequate,
Concurrent Consideration. One which arises at
the same time or where the promises are simul-
taneous.
Continuing Consideration. One consisting in
acts or performances which must necessarily ex-
tend over a considerable period of time.
Equitable or Moral Considerations. Considera-
tions which are devoid of efficacy in point of strict
law, but are founded upon a moral duty, and may
be made the basis of an express promise.
Executed or Executory Considerations. The
former are acts done or values given before or
at the time of making the contract; the latter
are promises to give or do something in future.
Express or Implied Considerations. The former
are those which are specifically stated in a deed,
contract, or other instrument; the latter are those
inferred or supposed by the law from the acts or
situation of the parties.
Express consideration is a consideration which is dis-
tinctly and specifically named in the written contract or
in the oral agreement of the parties.
Failure of Consideration. See Failure of Consid-
eration.
Fair and Valuable Consideration. See Fair and
Valuable Consideration.
Fair Consideration, See Fair Consideration.
Good Consideration. Such as is founded on nat-
ural duty and affection, or on a strong moral ob-
ligation. Chit.Cont. 7. A consideration for love
and affection entertained by and for one within
degree recognized by law. Gay v. Fricks, 211 Ala.
119, 99 So. 846, 847. See, also, Berry v. Berry, 83
W.Va. 763, 99 S.E. 79.
Motives of natural duty, generosity, and prudence come
under this class. 2 Bla.Comm. 297; Doran v. McConlogue,
150 Pa. 98, 24 A. 357; Mascolo v. Montesanto, 61 Conn. 50,
23 A. 714, 29 Am.St.Rep. 170.
The term is sometimes used in the sense of a considera-
tion valid in point of law; and it then includes a valuable
or sufficient as well as a meritorious consideration. Hodg-
son v. Butts, 3 Cra. (U.S.) 140, 2 L. Ed. 391; Lang v.
Johnson, 24 N.H. 302; Ambl. 598. Generally, however,
good is used in antithesis to valuable consideration (q. v.).
Gratuitous Consideration. One which is not
founded upon any such loss, injury, or inconven-
ience to the party to whom it moves as to make it
valid in law.
Illegal Consideration. An act which if done, or
a promise which if enforced, would be prejudicial
to the public interest. Harriman, Cont. 101.
Implied Considerations. See Express or Implied
Considerations, supra.
Impossible Consideration. One which cannot be
performed.
Inadequate Consideration. See that title.
Legal Consideration. One recognized or permit-
ted by the law as valid and lawful; as distin-
guished from such as are illegal or immoral. The
term is also sometimes used as equivalent to
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CONSIDERATION
"good" or "sufficient" consideration. See Samp-
son v. Swift, 11 Vt. 315; Albert Lea College v.
Brown, 88 Minn. 524, 93 N.W. 672, 60 L.R.A. 870.
Meritorious Consideration. See Good Considera-
tion.
Moral Considerations. See Equitable or Moral
Considerations, supra.
Nominal Consideration.  One bearing no rela-
tion to the real value of the contract or article, as
where a parcel of land is described in a deed as
being sold for "one dollar," no actual consideration
passing, or the real consideration being concealed.
This term is also sometimes used as descriptive of
an inflated or exaggerated value placed upon prop-
erty for the purpose of an exchange. Boyd v. Wat-
son, 101 Iowa 214, 70 N.W. 123; Emmi v. Patane,
220 N.Y.S. 495, 498, 128 Misc. 901.
Past Consideration. An act done before the con-
tract is made, which is ordinarily by itself no con-
sideration for a promise. Anson, Cont. 82; Witt v.
Wilson, Tex.Civ.App., 160 S.W. 309, 310.
As to time, considerations may be of the past, present,
or future. Those which are present or future will support
a contract not void for other reasons. Story, Contr. 71.
Pecuniary Consideration. A consideration for
an act or forbearance which consists either in
money presently passing or in money to be paid in
the future, including a promise to pay a debt in
full which otherwise would be released or dimin-
ished by bankruptcy or insolvency proceedings.
See Phelps v. Thomas, 6 Gray (Mass.) 328; In re
Ekings, D.C.N.J., 6 F. 170.
Sufficient Consideration. One deemed by the
law of sufficient value to support an ordinary con-
tract between parties, or one sufficient to support
the particular transaction. Golson v. Dunlap, 73
Cal. 157, 14 P. 576.
Valuable Consideration. See Consideration.
Want of Consideration. See Want of Considera-
tion.
CONSIDERATUM EST PER CURIAM. (It is con-
sidered by the court.) The formal and ordinary
commencement of a judgment. Baker v. State,
3 Ark. 491.
CONSIDERATUR. L. Lat. It is considered.
Held to mean the same with consideratum est.
2 Strange, 874.
CONSIDERED. Deemed; determined; adjudged;
reasonably regarded. State v. District Court . of
Eighth Judicial Dist. in and for Cascade County,
64 Mont. 181, 208 P. 952, 955. See Consider.
Evidence may be said to have been "considered" when it
has been reviewed by a court to determine whether any
probative force should be given it. Taylor v. Gossett, Tex.
Civ.App., 269 S.W. 230, 233.
CONSIGN. In the civil law. To deposit in the
custody of a third person a thing belonging to
the debtor, for the benefit of the creditor, under
the authority of a court of justice. Poth.Obl. pt.
3, c. 1, art. 8.
In Commercial Law. To deliver goods to a car-
rier to be transmitted to a designated factor or
agent. Powell v. Wallace, 44 Kan. 656, 25 P. 42;
Ide Mfg. Co. v. Sager Mfg. Co., 82 Ill.App. 685.
To deliver or transfer as a charge or trust; to
commit, intrust, give in trust; to transfer from
oneself to the care of another; to send or transmit
goods to a merchant, factor, or agent for sale; to
deposit with another to be sold, disposed of, or
called for. Edwards v. Baldwin Piano Co., 79 Fla.
143, 83 So. 915, 918.
CONSIGNATION. In Scotch law. The payment
of money into the hands of a third party, when
the creditor refuses to accept of it. The person
to whom the money is given is termed the "con-
signatory." Bell.
In French law. A deposit which a debtor
makes of the thing that he owes into the hands of
a third person, and under the authority of a court
of justice. 1 Poth.Obl. 536; Weld v. Hadley, 1 N.
H. 304.
CONSIGNEE. In mercantile law. One to whom
a consignment is made. The person to whom'
goods are shipped for sale. Lyon v. Alvord, 18
Conn. 80; Comm. v. Harris, 168 Pa. 619, 32 A.
92. One to whom goods are consigned, shipped, or
otherwise , transmitted. State v. Chadbourne, 132
Me. 5, 164 A. 630, 631. The one to whom the car-
rier may lawfully make delivery in accordance
with its contract of carriage. Great Northern
Pac. S. S. Co. v. Rainier Brewing Co., C.C.A.Wash.,
255 F. 762, 764; One to whom merchandise has
been delivered. International Trust Co. v. Webster
Nat. Bank, 258 Mass. 17, 154 N.E. 330, 332, 49 A.
L.R. 267; Under a statute, the person who, under
circumstances in which he might be entitled to
the delivery of the goods, represents that he is so
entitled, tenders a bond in the statutory form, and
requests delivery. St. Louis, I. M. & S. R. Co. v.
Bankers' Surety Co., 115 Ark. 58, 172 S.W. 266, 268.
CONSIGNMENT. The act or process of consign-
ing goods; the transportation of goods consigned;
an article or collection of goods sent to a factor;
goods or property sent, by the aid of a common
carrier, from one person in one place to another
person in another place; something consigned and
shipped. See Consign. In re Taylor, D.C.Mich.,
46 F.2d 326, 328.
Feature which distinguishes "conditional sale" from
"consignment" is that in the former the purchaser under-
takes an absolute obligation to pay for the goods, whereas
the latter is nothing more than a bailment for sale. In re
Sachs, D.C.Md., 31 F.2d 799, 800.
In stockyard parlance, all the livestock of one species de-
livered in the name of one person to one market agency to
be offered for sale during the trading hours of one day.
Acker v. U. S., D.C.I11., 12 F.Supp. 776, 780. Mutual Trans-
fer Corporation of Galax v. Commonwealth, 172 Va. 622, 1
S.E.2d 477, 479.
CONSIGNOR. One who sends or makes a con-
signment; a shipper of goods.
CONSILIA MULTORUM QU2ERUNTUR IN MAG-
NIS. 4 Inst. 1. The counsels of many are re-
quired in great things.
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CONSOLIDATION
CONSILIARIUS. In the civil law. A counsellor,
as distinguished from a pleader or advocate. An
assistant judge. One who participates in, the de-
cisions. Du Cange.
CONSILIUM. A day appointed to hear the coun-
sel of both parties. A case set down for argument.
It is commonly used for the day appointed for
the argument of a demurrer, or errors assigned.
1 Tidd, Pr. 438; 2 Tidd, Pr. 684, 1122; 1 Sell.Pr.
336; 1 Archb.Pr. 191, 246.
CONSIMILI CASU. In practice. A writ of entry,
framed under the provisions of the statute West-
minster 2, (13 Edw. I.,) c. 24, which lay for the
benefit of the reversioner, where a tenant by the
curtesy aliened in fee or for life. 3 Bla.Comm.,
4th Dublin ed. 183 n.; Bac.Abr. Court of Chancery
(A).
Many other new writs were framed under the provisions
of this statute; but this particular writ was known em-
phatically by the title here defined. The writ is now
practically obsolete. See 3 Bla.Comm. 51.
CONSIST. To stand together, to be composed of
or made up of. Hoskins Mfg. Co. v. General Elec-
tric Co., D.C.I11., 212 F. 422; In re Clark's Estate,
100 Vt. 217, 136 A. 389, 393. See Consisting.
CONSISTENT. Having agreement with itself or
something else; accordant; harmonious; con-
gruous; compatible; compliable; not contradic-
tory.  Baldwin-Heckes Co. v. Kammerlohr, 123
Neb. 317, 242 N.W. 661, 663; Ryan v. Roach Drug
Co., 113 Old. 130, 239 P. 912, 914.
"Consistent with" means in harmony with. Shay v.
Roth, 64 Cal.App. 314, 221 P. 967, 969.
CONSISTING. Being composed or made up of.
This word is not synonymous with "including;"
for the latter, when used in connection with a num-
ber of specified objects, always implies that there
may be others which are not mentioned. In re
Wright's Estate, 166 Misc. 52, 2 N.Y.S.2d 25, 28.
CONSISTOR. A magistrate. Jacob L. D.
CONSISTORIUM. The state council of the Roman
emperors. Mackeld.Rom.Law, § 58.
CONSISTORY. An assembly of cardinals con-
voked by the pope.
A tribunal (praetorium).
CONSISTORY COURTS. The courts of diocesan
bishops held in their several cathedrals (before the
bishop's chancellor, or commissary, who is the
judge) for the trial of all ecclesiastical causes aris-
ing within their respective dioceses, and also for
granting probates and administrations. Mozley &
Whitley; 1 Holdsw.Hist.E.L. 369, citing L.R. 1902,
1 K.B. 816. From the sentence of these courts an
appeal lies to the Provincial Court of the arch-
bishop of each province respectively. 2 Steph.
Comm. 230; 3 Steph.Comm. 430; 3 Bla.Comm. 64;
1 Woodd.Lect. 145; Halifax, An. b. 3, c. 10, n. 12.
CONSOBRINI. In the civil law. Cousins-german,
in general; brothers' and sisters' children, con-
sidered in their relation to each other.
• CONSOCIATIO. Lat. An association, fellowship,
or partnership. Applied by some of the older
writers to a corporation, and even to a nation con-
sidered as a body politic. Thomas v. Dakin, 22
Wend. (N.Y.) 104.
CONSOLATION. Comfort, contentment, ease, en-
joyment, happiness, pleasure, satisfaction. Na-
tional Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E.
291, 295.
CONSOLATO DEL MARE. The name of a code
of sea-laws, said to have been compiled by order
of the kings of Arragon (or, according to other
authorities, at Pisa or Barcelona) in the fourteenth
century, which comprised the maritime ordinances
of the Roman emperors, of France and Spain, and
of the Italian commercial powers. This compila-
tion exercised a considerable influence in the for-
mation of European maritime law.
CONSOLIDATE. In a general sense, to unite into
one mass or body, as to consolidate the forces
of an army, or various funds. In parliamentary
usage, to consolidate two bills is to unite them
into one. In law, to consolidate benefices is to
combine them into one. The term means some-
thing more than to rearrange or redivide. Fair-
view v. Durland, 45 Iowa 56.
To make solid or firm; to unite, compress, or
pack together and form into a more compact mass,
body, or system. Marfield v. Cincinnati, D. & T.
Traction Co., 111 Ohio St. 139, 144 N.E. 689, 696,
40 A.L.R. 357. To cause to become united and ex-
tinguished in a superior right or estate by both be-
coming vested in the same person. Swaim v.
Smith, 174 Tenn. 688, 130 S.W.2d 116, 120.
CONSOLIDATED FUND. In England. (Usually
abbreviated to Consols.) A fund for the payment
of the public debt.
CONSOLIDATED LAWS OR STATUTES. A col-
lection or compilation into one statute or one code
or volume of all the laws of the state in general,
or of those relating to a particular subject; nearly
the same as "compiled laws" or "compiled stat-
utes." See Compilation. And see Ellis v. Parsell,
100 Mich. 170, 58 N.W. 839.
CONSOLIDATED ORDERS. The orders regulat-
ing the practice of the English court of ohancery,
which were issued, in 1860, in substitution for the
various orders which had previously been promul-
gated from time to time.
CONSOLIDATION. Act of consolidating, or the
status of being consolidated. O'Malley v. Wilson,
182 Ga. 97, 185 S.E. 109, 114.
In the civil law. The union of the usufruct
with the estate out of which it issues, in the same
person; which happens when the usufructuary ac-
quires the estate, or vice versa. In either case the
usufruct is extinct. Lec.El.Dr.Rom. 424.
In ecclesiastical law. The union of two or
more benefices in one. Cowell.
In practice. The union of two or more actions,
as in the same declaration, or for the purpose of
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CONSOLIDATION
trial or appellate review. See Consolidation of
Actions.
In Scotch law. The junction of the property
and superiority of an estate, where they have
been disjoined. Bell.
Consolidation of actions. The act or process of
uniting several actions into one trial and judg-
ment, by order of a court, where all the actions are
between the same parties, pending in the same
court, and involving substantially the same sub-
ject-matter, issues and defenses; or the court may
order that one of the actions be tried, and the oth-
ers decided without trial according to the judg-
ment in the one selected. 249 N.Y.S. 33, 36, 139
Misc. 564; National Union Fire Ins. Co. v. Chesa-
peake and 0. Ry. Co., D.C.Ky., 4 F.Supp. 25, 30.
It means the merging of two or more actions into one
so that they lose their separate identity, while in trial of
"several actions together" each retains its separate char-
acter and requires the entry of a separate judgment.
Ramswick v. Messerer, 200 Minn. 299, 274 N.W. 179;
Reeves v. Philadelphia Gas Works Co., 107 Pa.Super. 422,
164 A. 132, 134, 107.
CONSOLIDATION OF BENEFICES. The act or
process of uniting two or more of them into one.
CONSOLIDATIONS OF CORPORATIONS. Takes
place when two or more corporations are extin-
guished, and by the same process a new one is
created, taking over the assets and assuming the
liabilities of those passing out of existence. A uni-
fying of two or more corporations into a single
new corporation having the combined capital,
franchises, and powers of all its constituents.
Alabama Power Co. v. McNinch, 68 App.D.C. 132,
94 F.2d 601, 611, 612. Freeman v. Hiznay, 349 Pa.
89, 36 A.2d 509; Murphy v. Niehus, 50 Ohio App.
299, 198 N.E. 197, 200.
Merger distinguished. In a "merger," one corporation
absorbs the other and remains in existence while the other
is dissolved, and in a "consolidation" a new corporation is
created and the consolidating corporations are extin-
guished. Von Weise v. Commissioner of Internal Revenue,
C.C.A., 69 F.2d 439, 442; Alabama Power Co. v. McNinch,
94 F.2d 601, 610, 611, 612, 68 App.D.C. 132. See, also,
Merger.
Consolidation rule. In practice. A rule or or-
der of court requiring a plaintiff who has institut-
ed separate suits upon several claims against the
same defendant, to consolidate them in one action,
where that can be done consistently with the rules
of pleading. Brown v. Scott, 1 Dall. (Pa.) 147, 1
L.Ed. 74; Groff v. Musser, 3 Serg. & R. (Pa.) 264;
2 Archb.Pr. 180. The Federal courts are au-
thorized to consolidate actions involving a com-
mon question of law or fact. Federal Rules of
Civil Procedure, Rule 42, 28 U.S.C.A.
CONSOLS. An abbreviation of the expression
"consolidated annuities," and used in modern times
as a name of various funds united in one for
the payment of the British national debt. Also, a
name given to certain issues of bonds of the state
of South Carolina. Whaley v. Gaillard, 21 S.C. 568.
See Consolidated Fund.
CONSONANT STATEMENT. A prior declaration
of a witness whose testimony has been attacked
and whose credibility stands impeached, which
the court will allow to be proved by the person
to whom the declaration was made in order to
support the credibility of the witness and which
but for the existence of such impeachment would
ordinarily be excluded as hearsay. Common-
wealth v. White, 16 A.2d 407, 409, 340 Pa. 139.
CONSORTIO MALORUM ME QUOQUE MALUM
FACIT, Moore, 817. The company of wicked men
makes me also wicked.
CONSORTIUM. Conjugal fellowship of husband
and wife, and the right of each to the company,
co-operation, affection, and aid of the other in
every conjugal relation. McMillan v. Smith, 47
Ga.App. 646, 171 S.E. 169, 170; Shedrick v. Lath-
rop, 106 Vt. 311, 172 A. 630, 632; Harris v. Kunkel,
227 Wis. 435, 278 N.W. 868, 869.
The term includes the exclusive right to the services of
the spouse, and to his or her society, companionship, and
conjugal affection. Smith v. Nicholas Bldg. Co., 93 Ohio
St. 101, 112 N.E. 204.
In its original application the term was not confined to
society, companionship, and conjugal affection, but includ-
ed service as a prominent, if not the predominant, factor-
not so much the service resulting in the performance of
labor or the earning of wages as the service which con-
tributed aid and assistance in all the relations of domestic
life. Hinnant v. Tide Water Power Co., 189 N.C. 120, 126
S.E. 307, 309, 37 A.L.R. 889.
In the civil law. A union of fortunes; a lawful
Roman marriage. The joining of several persons
as parties to one action.
In old English law, the term signified company
or society, and in the language of pleading, as in
the phrase per quod consortium amisit, it has sub-
stantially the same meaning, viz., the companion-
ship or society of a wife. 3 Bla.Comm. 140; Kel-
ley v. Railroad Co., 168 Mass. 308, 46 N.E. 1063,
38 L.R.A. 631, 60 Am.St.Rep. 397.
CONSORTSHIP. In maritime law. An agree-
ment or stipulation between the owners of dif-
ferent vessels that they shall keep in company,
mutually aid, instead of interfering with each oth-
er, in wrecking and salvage, and share any money
awarded as salvage, whether earned by one vessel
or both. Andrews v. Wall, 3 How. 571, 11 L.Ed.
729.
CONSPICUOUS PLACE. Within the meaning of
a statute relating to the posting of notices, a "con-
spicuous place" means one which is reasonably cal-
culated to impart the information in question.
Didier v. Webster Mines Corporation, 49 Nev. 5,
234 P. 520, 523.
CONSPIRACY. In criminal law. A combination
or confederacy between two or more persons
formed for the purpose of committing, by their
joint efforts, some unlawful or criminal act, or
some act which is innocent in itself, but becomes
unlawful when done by the concerted action of
the conspirators, or for the purpose of using crim-
inal or unlawful means to the commission of an
act not in itself unlawful. Pettibone v. U. S., 148
U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Mitchell v.
Hitchman Coal & Coke Co., C.C.A.W.Va., 214 F.
685, 708; Hamilton v. Cooley, 184 N.E. 568, 571,
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CONSTABLE
99 Ind.App. 1; Browning v. Browning, 226 Mo.
App. 322, 41 S.W.2d 860, 868.
A combination, or an agreement between two or more
persons, for accomplishing an unlawful end or a lawful end
by unlawful means. 4 B. & Ad. 345; Cumberland Tele-
phone & Telegraph Co. v. Stevens, D.C.Miss., 274 F. 745,
746; Lauf v. E. G. Shinner & Co., C.C.A.Wis., 82 F.2d 68,
72; Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458, 464.
A partnership in criminal purposes. Marino v. United
States, C.C.A.Cal., 91 F.2d 691, 113 A.L.R. 975.
The essence of "conspiracy" is an agreement, together
with an overt act, to do an unlawful act, or do a lawful
act in an unlawful manner. Cooper v: O'Connor, 99 F.2d
135, 142, 69 App.D.C. 100, 118 A.L.R. 1440. Mere knowl-
edge, acquiescence, approval, or attempt on part of one to
perpetrate illegal act is insufficient. People v. Link, 365
Ill. 266, 6 N.E.2d 201.
A conspiracy may be a continuing one; actors may drop
out, and others drop in; the details of operation may
change from time to time; the members need nit know
each other or the part played by others; a member need
not know all the details of the plan or the operations; he
must, however, know the purpose of the conspiracy and
agree to become a party to a plan to effectuate that pur-
pose. Craig v. U. S., C.C.A.Cal., 81 F.2d 816, 822.
A consultation or agreement between two or more persons,
either falsely to accuse another of a crime punishable by
law; or wrongfully to injure or prejudice a third person,
or any body of men, in any manner ; or to commit any
offense punishable by law; or to do any act with intent
to prevent the course of justice; or to effect a legal pur-
pose with a corrupt intent, or by improper means. Hawk.
P.C. c. 72,  2; Archb.Crim.P1. 390, adding also combina-
tions by journeymen to raise wages. State v. Murphy, 6
Ala. 765, 41 Am. Dec. 79.
Civil and Criminal Conspiracies
The term "civil" is used to designate a conspira-
cy which will furnish ground for a civil action,
as where, in carrying out the design of the con-
spirators, overt acts are done causing legal dam-
age, the person injured has a right of action. It
is said that the gist of civil conspiracy is the in-
jury or damage. While criminal conspiracy does
not require such overt acts, yet, so far as the
rights and remedies are concerned, all criminal
conspiracies are embraced within the civil con-
spiracies. Martha Mills v. Moseley, 50 Ga.App.
536, 179 S.E. 159.
Accurately speaking, there is no such thing as a civil ac-
tion for conspiracy. The better view is that the damage
sustained, and not the conspiracy is the gist of the action.
The combination may be of no consequence except as bear-
ing upon rules of evidence or the persons liable. Dahlquist
v. Mattson, 40 Idaho, 378, 233 P. 883, 885.
The essence of a "civil conspiracy" is a concert or com-
bination to defraud or cause other injury to person or prop-
erty, which results in damage to the person or property of
plaintiff. Conner v. Bryce, Sup., 170 N.Y.S. 94, 95.
CONSPIRATIONE. An ancient writ that lay
against conspirators. Reg.Orig. 134; Fitzh.Nat.
Brev. 114.
CONSPIRATORS. Persons guilty of a conspira-
cy. State v. Collins, 88 Mont. 514, 294 P. 957, 961,
73 A.L.R. 861.
Where two or more persons enter on a common enter-
prise or adventure and criminal offense is contemplated
each is a "conspirator". Kelly v. State, 31 Ala.App. 194,
13 So.2d 691, 692.
Those who bind themselves by oath, covenant, or other
alliance that each of them shall aid the other falsely and
maliciously to indict persons; or falsely to move and
maintain pleas, etc. 33 Edw. I. St. 2. Besides these, there
are conspirators in treasonable purposes; as for plotting
against the government. Wharton.
CONSPIRE. To engage in conspiracy. Wright v.
United States, C.C.A.La., 48 C.C.A. 37, 108 F. 805,
809.
It carries with it the idea of agreement, concurrence and
combination, and hence is inapplicable to a single person
or thing, and one cannot agree or conspire with another.
who does not agree or conspire with him. Horton v. John-
son, 192 Ga. 338, 15 S.E.2d 605, 615.
CONSTABLE. In American law. An officer of
a municipal corporation (usually elected) whose
duties are similar to those of the sheriff, though
his powers are less and his jurisdiction smaller.
He is to preserve the public peace, execute the
process of magistrates' courts, and of some other
tribunals, serve writs, attend the sessions of the
criminal courts, have the custody of juries, and
discharge other functions sometimes assigned to
him by the local law or by statute. Allor v.
Wayne County, 43 Mich. 76, 4 N.W. 492.
In English law. A public civil officer, whose
proper and general duty is to keep the peace
within his district, though he is frequently charg-
ed with additional duties. 1 B1.Comm. 356.
There are "high," "petty," and "special" consta-
bles. See the definitions, infra.
In Medieval law. A high functionary under
the French and English kings, the dignity and
importance of whose office was second only to
that of the monarch. He was in general the lead-
er of the royal armies, and had cognizance of all
matters pertaining to war and arms, exercising
both civil and military jurisdiction. He was also
charged with the conservation of the peace of
the. nation. Thus there was a "Constable of
France" and a "Lord High Constable of England."
Rich v. Industrial Commission, 80 Utah 511, 15
P.2d 641, 644.
Constable of a castle. In English law. An of-
ficer having charge of a castle; a warden, or keep-
er; otherwise called a "castellain." Stat. Westm.
1, c. 7 (3 Edw. I.) ; Spelman, Gloss.
Constable of England. (Called, also, "Mare
shal.")  His office consisted in the care of the
common peace of the realm in deeds of arms and
matters of war. Lamb. Const. 4; 3 Steph. Comm.
47; 4 Bla. Comm. 92.
Constable of Scotland. An officer who was for-
merly entitled to command all the king's armies
in the absence of the king, and to take cognizance
of all crimes committed within four miles of the
king's person or of parliament, the privy council,
or any general convention of the states of the
kingdom. The office was hereditary in the family
of Errol, and was abolished by the 20 Geo. III,
c. 43. Bell; Ersk. Inst. 1, 3, 37.
Constable of the exchequer. An officer men-
tioned in Fleta, lib. 2, c. 31, and in 51 Hen. III,
stat. 5, cited by Cowell.
High constables. In England, officers appointed
in every hundred or franchise, whose proper duty
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CONSTABLE
seems to be to keep the king's peace within their
respective hundreds. 1 Bl.Comm. 356; 3 Steph.
Comm. 47; Coke, 4th Inst. 267.
High constable of England, lord. His office has
been disused (except only upon great and solemn
occasions, as the coronation, or the like) since the
attainder of Stafford, Duke of Buckingham, in
the reign of Henry VII.
Petty constables. Inferior officers in every
town and parish, subordinate to the high con-
stable of the hundred, whose principal duty is the
preservation of the peace, though they also have
other particular duties assigned to them by act
of parliament, particularly the service of the
summonses and the execution of the warrants of
justices of the peace. 1 Bl.Comm. 356; 3 Steph.
Comm. 47, 48.
Special constables. Persons appointed (with or
without their consent) by the magistrates to exe-
cute warrants on particular occasions, as in the
case of riots, etc.
C,ONSTABLEWICK. In English law. The terri-
torial jurisdiction of a constable; as bailiwick is
of a bailiff or sheriff. 5 Nev. & M. 261.
CONSTABULARIUS. An officer of horse; an of-
ficer having charge of foot or horse; a naval
commander; an officer having charge of military
affairs generally. Spelman.
In England his power was early diminished and restrict-
ed to those duties which related to the preservation of the
king's peace. The office is now abolished in England, ex-
cept as a matter of ceremony, and in France. Guyot, Rlp.
Univ.; Cowell.
CONSTANT. Fixed or invariable; uniform.
Webster. Continually recurring, regular, steady.
Pfisterer v. Key, 218 Ind. 521, 33 N.E.2d 330, 335.
CONSTANTLY. In a constant manner; uniform-
ly; continuously. Pfisterer v. Key, 218 Ind. 521,
33 N.E.2d 330, 335.
An instruction that a train crew knew that a railroad
right of way had been "constantly," frequently, and regu-
larly used by a considerable number of persons at a par-
ticular hour of the day was not subject to the criticism
that the word "constantly" imported an uninterrupted and
continuous presence of such persons on the track, so that
at no moment of time it would be vacant of pedestrians.
Grauer v. Alabama Great Southern R. Co., 209 Ala. 568, 96
So. 915, 919.
CONSTAT. It is clear or evident; it appears;
it is certain; there is no doubt. Non constat, it
does not appear.
A certificate which the clerk of the pipe and
auditors of the exchequer made, at the request of
any person who intended to plead or move in
that court, for the discharge of anything. The ef-
fect of it was the certifying what appears (con-
stat) upon record, touching the matter in ques-
tion. Wharton.
A certificate by an officer that certain matters
therein stated appear of record. Wilcox v. Ray,
2 N.C. 410.
An exemplification under the great seal of the
enrolment of letters patent. Co. Litt. 225.
CONSTAT D'HUISSIER. In French law. An af-
fidavit made by a huissier, setting forth the ap-
pearance, form, quality, color, etc., of any article
upon which a suit depends. Arg. Fr. Mere. Law,
554.
CONSTATE. To establish, constitute, or ordain.
"Constating instruments" of a corporation are
its charter, organic law, or the grant of powers
to it. See examples of the use of the term,
Green's Brice, Ultra Vires, p. 39; Ackerman v.
Halsey, 37 N.J.Eq. 363.
CONSTITUENT. He who gives authority to an-
other to act for him.
The term is used as a correlative to "attorney,"
to denote one who constitutes another his agent
or invests the other with authority to act for him.
Kunz v. Lowden, C.C.A.Kan., 124 F.2d 911, 913.
It is also used in the language of politics, as
a correlative to "representative," the constituents
of a legislator being those whom he represents
and whose interests he is to care for in public
affairs; usually the electors of his district.
CONSTITUERE. Lat. To appoint, constitute, es-
tablish, ordain, or undertake. Used principally in
ancient powers of attorney, and now supplanted
by the English word "constitute."
CONSTITUIMUS. A Latin term, signifying we
constitute or appoint.
CONSTITUTED AUTHORITIES. Officers prop-
erly appointed under the constitution for the gov-
ernment of the people.
CONSTITUTIO. In the Civil law. An imperial
ordinance, decree, or constitution, distinguished
from Lex, Senatus-Consultum, and other kinds of
law and having its effect from the sole will of
the emperor. Dig. 1, 4, 1, Cooper's notes. An
establishment or settlement. Used of controver-
sies settled by the parties without a trial. Calvin.
A sum paid according to agreement. Du Cange.
In Old English Law
An ordinance or statute. A provision of a
statute.
CONSTITUTIO DOT'S. Establishment of dower.
CONSTITUTION. The organic and fundamental
law of a nation or state, which may be written or
unwritten, establishing the character and concep-
tion of its government, laying the basic principles
to which its internal life is to be conformed, organ-
izing the government, and regulating, distribut-
ing, and limiting the functions of its different
departments, and prescribing the extent and man-
ner of the exercise of sovereign powers. A char-
ter of government deriving its whole authority
from the governed. Fairhope Single Tax Corpo-
ration v. Melville, 193 Ala. 289, 69 So. 466, 470.
See, also, Browne v. City of New York, 213 App.
Div. 206, 211 N.Y.S. 306.
In a more general sense, any fundamental or important
law or edict; as the Novel Constitutions of Justinian; the
Constitutions of Clarendon.
•
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CONSTITUTUM
CONSTITUTIONAL OFFICER. One whose ten-
ure and term of office are fixed and defined by the
Black's Law Dictionary Revised 4th Ed.-25
385
CONSTITUTION. In American law. The writ-
ten instrument agreed upon by the people of the
Union or of a particular state, as the absolute
rule of action and decision for all departments
and officers of the government in respect to all
the points covered by it, which must control until
it shall be changed by the authority which estab-
lished it, and in opposition to which any act or or-
dinance of any such department or officer is null
and void. Cooley, Const. Lim. 3.
CONSTITUTIONAL. Consistent with the con-
stitution; authorized by the constitution; not con-
flicting with any provision of the constitution or
fundamental law of the state. Dependent upon
a constitution, or secured or regulated by a con-
stitution; as "constitutional monarchy," "consti-
tutional rights."
CONSTITUTIONAL ALCALDE. A person of
official status under Mexican law corresponding in
many respects in dignity and authority to a jus-
tice of the peace under the American system of
government. Tietzel v. Southwestern Const. Co.,
48 N.M. 567, 154 P.2d 238, 242.
CONSTITUTIONAL CONVENTION. A duly con-
stituted assembly of delegates or representatives
of the people of a state or nation for the purpose
of framing, revising, or amending its constitution.
Bass v. Albright, Tex.Civ.App., 59 S.W.2d 891, 894.
CONSTITUTIONAL COURT. A court named or
described and expressly protected by Constitution,
or recognized by name or definite description in
Constitution but given no express protection there-
by. Gorham v. Robinson, 57 R.I. 1, 186 A. 832.
CONSTITUTIONAL LAW. (1) That branch of
the public law of a state which treats of the or-
ganization and frame of government, the organs
and powers of sovereignty, the distribution of po-
litical and governmental authorities and functions,
the fundamental principles which are to regulate
the relations of government and subject, and
which prescribes generally the plan and method
according to which the public affairs of the state
are to be administered. (2) That department of
the science of law which treats of constitutions,
their establishment, construction, and interpreta-
tion, and of the validity of legal enactments as
tested by the criterion of conformity to the funda-
mental law. (3) A constitutional law is one
which is consonant to, and agrees with, the con-
stitution; one which is not in violation of any
provision of the constitution of the particular
state.
CONSTITUTIONAL LIBERTY OR FREEDOM.
Such freedom as is enjoyed by the citizens of a
country or state under the protection of its consti-
tution; the aggregate of those personal, civil, and
political rights of the individual which are guar-
anteed by the constitution and secured against in-
vasion by the government or any of its agencies.
People v. Hurlbut, 24 Mich. 106, 9 Am.Rep. 103.
constitution, as distinguished from the incumbents
of offices created by the legislature. Foster v.
Jones, 79 Va. 642, 52 Am.Rep. 637.
CONSTITUTIONAL PSYCHOPATHIC INFERI-
ORITY. Individuals who show a lifelong and con-
stitutional tendency not to conform to the customs
of the group, and who habitually misbehave, and
have no sense of responsibility to their fellowmen
or to society as a whole. These individuals fail
to learn by experience and are inadequate, incom-
patible, and inefficient. State ex rel. Pearson v.
Probate Court of Ramsey County, 205 Minn. 545,
287 N.W. 297, 300; Wilson v. Walters, Cal.App.,
112 P.2d 964.
CONSTITUTIONAL RIGHT. A right guaranteed
to the citizens by the Constitution and so guaran-
teed as to prevent legislative interference there-
with. Delaney v. Plunkett, 146 Ga. 547, 91 S.E.
561, 567, L.R.A.1917D, 926, Ann.Cas.1917E, 685.
CONSTITUTIONES. Laws promulgated, i. e., en-
acted, by the Roman Emperor. They were of
various kinds, namely, the following: (1) Edicta;
(2) decreta; (3) rescripta, called also "epistolce."
Sometimes they were general, and intended to
form a precedent for other like cases; at other
times they were special, particular, or individual,
(personales,) and not intended to form a prece-
dent. The emperor had this power of irresponsi-
ble enactment by virtue of a certain lex regia,
whereby he was made the fountain of justice and
of mercy. Brown.
CONSTITUTIONES TEMPORE POSTERIORES
POTIORES SUNT HIS QUJE IPSAS PRIECES-
SERUNT. Dig. 1, 4, 4. Later laws prevail over
those which preceded them.
CONSTITUTIONS OF CLARENDON. See Clar-
endon.
CONSTITUTIONS OF THE FOREST. See Char-
ta de Foresta.
CONSTITUTOR. In the civil law. One who, by
a simple agreement, becomes responsible for the
payment of another's debt. Inst. 4, 6, 9.
CONSTITUTUM. In the civil law. An agree-
ment to pay a subsisting debt which exists with-
out any stipulation, whether of the promisor or
another party. It differs from a stipulation in
that it must be for an existing debt. Du Cange.
A day appointed for any purpose. A form of
appeal. Calvinus, Lex.
CONSTITUTUM ESSE EAM DOMUM
QUE NOSTRUM DEBERE EXISTIMARI, UBI
QUISQUE SEDES ET TABULAS HABERET,
SUARUMQUE RERUM CONSTITUTIONEM FE-
CISSET. It is settled that that is to be considered
the home of each one of us where he may have
his habitation and account-books, and where he
may have made an establishment of his business.
Dig. 50, 16, 203.

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CONSTRAINT
CONSTRAINT. This term is held to be exactly
equivalent with "restraint." Edmondson v. Har-
ris, 2 Tenn.Ch. 427.
An abridgement of liberty or hindrance of the
will, identical in meaning with the word "com-
pulsion." Edmondson v. Harris, 2 Tenn.Ch. 427.
In Scotch law. Duress.
CONSTRUCT. To build; erect; put together;
make ready for use. State v. Abele, 119 Ohio St.
210, 162 N.E. 807, 809. To adjust and join mate-
rials, or parts of, so as to form a permanent whole.
Kinney v. Ehrensperger, 16 Ala.App. 289, 77 So.
439, 440. To put together constituent parts of
something in their proper place and order. State
ex rel. St. Louis County v. State Highway Com-
mission, 315 Mo. 707, 286 S.W. 1, 2.
"Construct" is distinguishable from "maintain," which
means to keep up, to keep from change, to preserve. State
v. Olympia Light & Power Co., 91 Wash. 519, 158 P. 85, 89.
Under a broad interpretation, however, "construct" may be
synonymous with maintain, repair, or improve. Independ-
ent Highway Dist. No. 2 of Ada County v. Ada County, 24
Idaho 416, 134 P. 542, 545.
CONSTRUCTIO LEGIS NON FACIT INJURIAM.
The construction of the law (a construction made
by the law) works no injury. Co. Litt. 183;
Broom, Max. 603. The law will make such a con-
struction of an instrument as not to injure a par-
ty.
CONSTRUCTION. The process, or the art, of
determining the sense, real meaning, or proper
explanation of obscure or ambiguous terms or
provisions in a statute, written instrument, or oral
agreement, or the application of such subject to
the case in question, by reasoning in the light de-
rived from extraneous connected circumstances
or laws or writings bearing upon the same or a
connected matter, or by seeking and applying the
probable aim and purpose of the provision. Koy
v. Schneider, 110 Tex. 369, 221 S.W. 880, 884.
As applied to statutes, constitutions, contracts, etc., the
term necessarily presupposes doubt, obscurity, or ambigui-
ty. Cohn-Hall-Marx Co. v. Vanosdall, 25 Ohio App. 360, 157
N.E. 908, 909.
Drawing conclusions respecting subjects that
lie beyond the direct expression of the term. Lie-
ber, Leg. & Pol. Herm. 20; Roberts v. Portland
Water Dist., 124 Me. 63, 126 A. 162, 163.
This term is properly distinguished from interpretation,
although the two are often used synonymously. In strict-
ness, interpretation is limited to exploring the written text,
while construction goes beyond and may call in the aid of
extrinsic considerations, as above indicated.
The process of bringing together and correlat-
ing a number of independent entities, so as to
form a definite entity. The Dredge A, D.C.N.C.,
217 F. 617, 631.
The creation of something new, as distinguished
from the repair or improvement of something al-
ready existing. Cabell v. City of Portland, 153
Or. 528, 57 P.2d 1292, 1297. The act of fitting an
object for use or occupation in the usual way,
and for some distinct purpose. Paterson N. &
R. R. Co. v. City of Paterson, 81 N.J.Eq. 124, 86
A. 68, 69. See Construct.
Construction, court of. A court of equity or
of common law, as the case may be, is called the
court of construction with regard to wills, as op-
posed to the court of probate, whose duty is to de-
cide whether an instrument be a will at all. Now,
the court of probate may decide that a given in-
strument is a will, and yet the court of construc-
tion may decide that it has no operation, by rea-
son of perpetuities, illegality, uncertainty, etc.
Wharton.
Equitable construction. A construction of a
law, rule, or remedy which has regard more to
the equities of the particular transaction or state
of affairs involved than to the strict application
of the rule or remedy; that is, a liberal and ex-
tensive construction, as opposed to a literal and
restrictive. Smiley v. Sampson, 1 Neb. 91.
By "equity of a statute" is intended the rule of construc-
tion which admits within the operation of a statute a class
of cases which are neither named nor excluded, but which,
from their analogy to those that are named, are clearly
and justly within the spirit and general meaning of the
law; such cases are said to be "within the equity of the
statute."
The modern doctrine is that to construe a statute liberal-
ly or according to its equity is nothing more than to give
effect to it according to the intention of the lawmaker as
indicated by its terms and purposes. Read v. Dingess, C.
C.A.W.Va., 60 F. 21, 29, 8 C.C.A. 389.
Strict and liberal construction. Strict (or liter-
al) construction is construction of a statute .or
other instrument according to its letter, which
recognizes nothing that is not expressed, takes
the language used in its exact and technical mean-
ing, and admits no equitable considerations or
implications. Warner v. King, 267 Ill. 82, 107
N.E. 837, 839.
Liberal (or equitable) construction, on the other
hand, expands the meaning of the statute to meet
cases which are clearly within the spirit or rea-
son of the law, or within the evil which it was de-
signed to remedy, provided such an interpreta-
tion is not inconsistent with the language used;
it resolves all reasonable doubts in favor of the
applicability of the statute to the particular case.
Black, Interp.Laws, 282; Causey v. Guilford Coun-
ty, 192 N.C. 298, 135 S.E. 40, 46. It means, not
that the words should be forced out of their na-
tural meaning, but simply that they should re-
ceive a fair and reasonable interpretation with re-
spect to the objects and purposes of the instru-
ment. Lawrence v. McCalmont, 2 How. 426, 11
L.Ed. 326.
CONSTRUCTIVE. That which is established by
the mind of the law in its act of construing facts,
conduct, circumstances, or instruments; that
which has not the character assigned to it in its
own essential nature, but acquires such charac-
ter in consequence of the way in which it is re-
garded by a rule or policy of law; hence, infer-
red, implied, made out by legal interpretation;—
the word "legal" being sometimes used in lieu
of "constructive." Middleton v. Parke, 3 App.D.
C. 160.
As to constructive "Bailment," "Breaking,"
"Contempt," "Contracts," "Conversion," "Deliv-
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CONSUETUDINIBUS
ery," "Escape," "Fraud," "Larceny," "Malice,"
"Notice," "Possession," "Seisin," "Service of Pro-
cess," "Total Loss," "Treason," and "Trusts," see
those titles.
CONSTRUCTIVE ASSENT. An assent or con-
sent imputed to a party from a construction or
interpretation of his conduct; as distinguished
from one which he actually expresses.
CONSTRUCTIVE AUTHORITY. Authority in-
ferred or assumed to have been given because of
the grant of some other antecedent authority.
Middleton v. Parke, 3 App.D.C. 160.
CONSTRUCTIVE BREAKING INTO A HOUSE.
A breaking made out by construction of law. As
where a burglar gains an entry into a house by
threats, fraud, or conspiracy. 2 Russ. Crimes, 9,
10; Hawkins v. Commonwealth, 284 Ky. 33, 143
S.W.2d 853, 854.
CONSTRUCTIVE CRIME. Where, by a strained
construction of a penal statute, it is made to in-
clude an act not otherwise punishable, it is said
to be a "constructive crime," that is, one built up
by the court with the aid of inference and implica-
tion. Ex parte McNulty, 77 Cal. 164, 19 P. 237, 11
Am.St.Rep. 257.
CONSTRUCTIVE EVICTION. As the term is
used with reference to breach of the covenants of
warranty and of quiet enjoyment, it means the in-
ability of the purchaser to obtain possession by
reason of a paramount outstanding title. Fritz v.
Pusey, 31 Minn. 368, 18 N.W. 94.
With reference to the relation of landlord and tenant,
there is a "constructive eviction" when the former, with-
out intent to oust the latter, does some act which deprives
the tenant of the beneficial enjoyment of the demised prem-
ises or materially impairs such enjoyment. Santrizos v.
Public Drug Co., 143 Minn. 222, 173 N.W. 563, 564. Any
disturbance of the tenant's possession by the landlord
whereby the premises are rendered unfit or unsuitable for
occupancy in whole or in substantial part for the purposes
for which they were leased amounts to a constructive evic-
tion, if the tenant so elects and surrenders his possession.
Murry v. Merchants' Southwest Transfer & Storage Co., 98
Okl. 270, 225 P. 547, 549. There must be injurious inter-
ference with tenant's possession, substantial deprivation of
tenant's beneficial use of premises, and material impair-
ment of tenant's beneficial enjoyment of premises, so that
he is compelled to vacate. Ben Hur Holding Corporation
v. Fox, 263 N.Y.S. 695, 147 Misc. 300.
CONSTRUCTIVE FORCE. This has been said
to be an acquiescence to an act obtained through
duress or fear of personal violence. Shepherd v.
State, 135 Ala. 9, 12, 33 So. 266.
With regard to rape, the force necessary to con-
stitute the offense need not be actual, but may be
constructive or implied. 52 C.J. p. 1018.
As regards robbery, a taking by force is the
gist of the crime, but the force may be either ac-
tual or constructive. 54 C.J. p. 1016. " 'Construc-
tive force' is anything which produces fear suf-
ficient to suspend the power of resistance and pre-
vent the free exercise of the will." Montsdoca v.
State, 84 Fla. 82, 93 So. 157, 159, 27 A.L.R. 1291.
"Actual force is applied to the body, constructive
is by threatening words or gestures and operates
on the mind." Tones v. State, 48 Tex.Cr. 363, 88
S.W. 217, 122 Am.St.Rep. 759, 1 L.R.A.,N.S., 1024.
CONSTRUCTIVE LOSS. One resulting from
such injuries to the property, without its destruc-
tion, as render it valueless to the assured or pre-
vent its restoration to the original condition except
at a cost exceeding its value.
CONSTRUCTIVE MORTGAGE. A deed absolute
on its face but intended as a mortgage is some-
times referred to as a "constructive mortgage,"
or, more commonly perhaps, as an "equitable
mortgage." See Mortgage.
CONSTRUCTIVE TAKING. A phrase used in
the law to characterize an act not amounting to
an actual appropriation of chattels, but which
shows an intention to convert them to his use; as
if a person intrusted with the possession of goods
deals with them contrary to the orders of the
owner.
CONSTRUCTIVE VACANCY IN PUBLIC OF-
FICE. When the incumbent has no legal right or
claim to continue in office, but can be legally re-
placed by another functionary. State ex rel. Sat-
terthwaite v. Stover, 5 W.W.Harr. 85, 159 A. 239,
241.
CONSTRUCTIVE WILLFULNESS. Intentional
disregard of a known duty necessary to the safety
of a person, and an entire absence of care for the
life, the person, or the property of others, such
as exhibits a conscious indifference to consequenc-
es. Collins v. Missouri-Illinois R. Co., 233 Ill.
App. 545, 551; Hughes v. Medendorp, 294 Ill.App.
424, 13 N.E.2d 1015, 1018.
CONSTRUE. To put together; to arrange or
marshal the words of an instrument. To ascer-
tain the meaning of language by a process of ar-
rangement and inference. See Construction.
CONSTUPRATE. To ravish, debauch, violate,
rape. See Harper v. Delp, 3 Ind. 230; Koenig v.
Nott, 2 Hilt. (N.Y.) 329.
CONSUETUDINARIUS. In ecclesiastical law. A
ritual or book, containing the rites and forms of
divine offices or the customs of abbeys and monas-
teries.
CONSUETUDINARY LAW. Customary law.
Law derived by oral tradition from a remote an-
tiquity. Bell.
CONSUETUDINES. In old English law. Cus-
toms. Thus, consuetudines et assisa forestce, the
customs and assise of the forest.
CONSUETUDINES FEUDORUM. (Lat. feudal
customs.) A compilation of the law of feuds or
fiefs in Lombardy, made A.D. 1170. It is of great
authority.
CONSUETUDINIBUS ET SERVICIIS. In old
English law. A writ of right close, which lay
against a tenant who deforced his lord of the rent
or service due to him. Reg. Orig. 159; Fitzh.
Nat. Brev. 151.
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CONSUETUDO
CONSUETUDO. Lat. A custom; .an established
usage or practice. Co. Litt. 58, 58b; Tolls; du-
ties; taxes.
CONSUETUDO ANGLICANA. The custom of
England; the ancient common law, as distinguish-
ed from lex, the Roman or civil law.
CONSUETUDO CONTRA RATIONEM INTRO-
DUCTA POTIUS USURPATIO QUAM CONSUE-
TUDO APPELLARI DEBET. A custom introduc-
ed against reason ought rather to be called a
"usurpation" than a "custom." Co.Litt. 113.
CONSUETUDO CURIAE. The custom or practice
of a court. Hardr. 141.
CONSUETUDO DEBET ESSE CERTA; NAM
INCERTA PRO NULLA HABETUR. Da y . 33. A
custom should be certain; for an uncertain cus-
tom is considered null.
CONSUETUDO EST ALTERA LEX. Custom is
another law. 4 Coke, 21.
CONSUETUDO EST OPTIMUS INTERPRES LE-
GUM. 2 Inst. 18. Custom is the best expounder
of the laws.
CONSUETUDO ET COMMUNIS ASSUETUDO
VINCIT LEGEM NON SCRIPTAM, SI SIT SPE-
CIALIS; ET INTERPRETATUR LEGEM SCRIP-
TAM, SI LEX SIT GENERALIS. Jenk. Cent. 273.
Custom and common usage overcomes the un-
written law, if it be special; and interprets the
written law, if the law be general.
CONSUETUDO EX CERTA CAUSA RATIONA-
BILI USITATA PRIVAT COMMUNEM LEGEM.
A custom, grounded on a certain and reasonable
cause, supersedes the common law. Litt. § 169;
Co. Litt. 113; Broom, Max. 919.
CONSUETUDO, LICET SIT MAGNIE AUCTORI-
TATIS, NUNQUAM TAMEN, PRZEJUDICAT
MANIFESTIE VERITATI. A custom, though it
be of great authority, should never prejudice man-
ifest truth. 4 Coke, 18.
CONSUETUDO LOCI OBSERVANDA EST. Litt.
§ 169. The custom of a place is to be observed.
CONSUETUDO MANERII ET LOCI OBSERVAN-
DA EST. 6 Coke, 67. A custom of a manor and
place is to be observed.
CONSUETUDO MERCATORUM. Lat. The cus-
tom of merchants, the same with lex mercatoria.
CONSUETUDO NEQUE INJURIA ORIRI NE-
QUE TOLLI POTEST. Lofft, 340. Custom can
neither arise from nor be taken away by injury.
CONSUETUDO NON TRAHITUR IN CONSE-
QUENTIAM. 3 Keb. 499. Custom is not drawn
into consequence. 4 Jur. (N.S.) Ex. 139.
CONSUETUDO PRIESCRIPTA ET LEGITIMA
VINCIT LEGEM. A prescriptive and lawful cus-
tom overcomes the law. Co. Litt. 113; 4 Coke, 21.
CONSUETUDO REGNI ANGLLE EST LEX AN-
GLUE. Jenk. Cent. 119. The custom of the king-
dom of England is the law of England. See 2
Bl. Comm. 422.
CONSUETUDO SEMEL REPROBATA NON P0-
TEST AMPLIUS INDUCI. A custom once disal-
lowed cannot be again brought forward, [or re-
lied on]. Da y . 33.
CONSUETUDO TOLLIT COMMUNEM LEGEM.
Co. Litt. 33b. Custom takes away the common
law.
CONSUETUDO VINCIT COMMUNEM LEGEM.
Custom overrules common law. 1 Rop. H. & W.
351; Co. Litt. 33b.
CONSUETUDO VOLENTES DUCIT, LEX NO-
LENTES TRAHIT. Custom leads the willing,
law compels [drags] the unwilling. Jenk. Cent.
274.
CONSUL.
International Law
An officer of a commercial character, appointed
by the different states to watch over the mer-
cantile interests of the appointing state and of
its subjects in foreign countries. There are
usually a number of consuls in every mari-
time country, and they are usually subject to a
chief consul, who is called a "consul general."
Schunior v. Russell, 18 S.W. 484, 83 Tex. 83.
Old English Law
An ancient title of an earl.
Roman Law
During the' republic, the name "consul" was
given to the chief executive magistrate, two of
whom were chosen annually. The office was con-
tinued under the empire, but its powers and pre-
rogatives were greatly reduced. The name is sup-
posed to have been derived from consulo, to con-
sult, because these officers consulted with the
senate on administrative measures.
The word "consul" has two meanings: (1) It denotes an
officer of a particular grade in the consular service; (2)
it has a broader generic sense, embracing all consular offi-
cers. Dainese v. U. S., 15 Ct.C1. 64.
See, also, Foreign Service Act of 1946, 22 U.S.C.A. § 801 et
seq.
CONSULAR COURTS. Courts held by the con-
suls of one country, within the territory of an-
other, under authority given by treaty, for the
settlement of civil cases. In some instances they
have also a criminal jurisdiction, but in this re-
spect are subject to review by the courts of the
home government. See Rev.St. U.S. § 4083 (22
U.S.C.A. § 141.)
CONSULTA ECCLESIA. In ecclesiastical law.
A church full or provided for. Cowell.
CONSULTARY RESPONSE. The opinion of a
court of law on a special case.
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CONTEMPLATION
CONSULTATION. A writ whereby' a cause
which has been wrongfully removed by prohibi-
tion out of an ecclesiastical court to a temporal
court is returned to the ecclesiastical court.
Phillim. Ecc. Law, 1439. Deliberation of persons
on some subject. State v. District Court of Third
Judicial Dist. in and for Powell County, 85 Mont.
215, 278 P. 122, 125.
A conference between the counsel engaged in
a case, to discuss its questions or arrange the
method of conducting it.
In French law. The opinion of counsel upon
a point of law submittted to them.
CONSULTO. Lat. In the civil law. Designed-
ly; intentionally. Dig. 28, 41.
CONSUMER. One who uses economic goods and
so diminishes or destroys their utilities; opposed
to producer. Ex parte Mehlman, 127 Tex.Cr.R.
257, 75 S.W.2d 689, 690.
CONSUMMATE, adj. Completed; as distinguish-
ed from initiate, or that which is merely begun.
The husband of a woman seised of an estate of
inheritance becomes, by the birth of a child, ten-
ant by the curtesy initiate, and may do many
acts to charge the lands, but his estate is not
consummate till the death of the wife. 2 Bl.
Comm. 126, 128; Co. Litt. 30a.
CONSUMMATE. v. To finish by completing
what was intended; bring or carry to utmost
point or degree; carry or bring to completion;
finish; perfect; fulfill; achieve. American Mer-
cantile Corporation v. Spielberg, C.C.A.N.Y., 262 F.
492, 496; Purcell v. Firth, 175 Cal. 746, 167 P. 379,
380; Oregon Home Builders v. Montgomery Inv.
Co., 94 Or. 349, 184 P. 487, 492; Dahlinger v. Com-
missioner of Internal Revenue, C.C.A., 51 F.2d
662, 663.
CONSU3DIATE LIEN. A term which may be us-
ed to describe the lien of a judgment when a mo-
tion for a new trial has been denied (the lien hav-
ing theretofore been merely inchoate). Sterling
v. Parker-Washington Co., 185 Mo.App. 192, 170
S.W. 1156, 1159.
CONSUM3IATION. The completion of a thing;
the completion of a marriage between two affianc-
ed persons by cohabitation. Sharon v. Sharon,
79 Cal. 633, 22 P. 26.
CONSUMPTION. Act or process of consuming;
waste; decay; destruction; and using up of any-
thing, as food, heat, or time. Moore v. Pleasant
Hasler Const. Co., 50 Ariz. 370, 72 P.2d 573, 578.
Destruction by use. Revzan v. Nudelman, 370
Iii. 180, 18 N.E.2d 219, 222.
CONTAGIOUS ABORTION. A disease of cows
generally contracted through the digestive tract
from infected food which causes premature birth
of calves. Gesme v. Potter, 118 Or. 621, 247 P.
765, 766.
CONTAGIOUS DISEASE. One capable of being
transmitted by mediate or immediate contact. Ex
parte Liang suck Chew, D.C.Mass., 296 F. 183.
See Infection.
CONTANGO. A double bargain, consisting of a
sale for cash of stock previously bought which
the broker does not wish to carry, and a repur-
chase for the re-settlement two weeks ahead of
the same stock at the same price as at the sale
plus interest accrued up to the date of that settle-
ment. The rate of interest is called a "contango"
and contango days are the two days during the
settlement when these arrangements are in effect.
CONTEK. L. Fr. A contest, dispute, disturbance,
opposition, Ri'itt. c. 42; Kelham. Conteckours;
brawlers; disturbers of the peace. Britt. c. 29.
CONTEMNER. One who has committed con-
tempt of court. Wyatt v. People, 17 Colo. 252, 28
P. 961.
CONTEMPLATE. To view or consider with con-
tinued attention; to regard thoughtfully; to have
in view as contingent or probable as an end or in-
tention. Wright v. Fuel Oil Co., Mo., 342 Mo.
173, 114 S.W.2d 959, 962. To ponder, to study, to
plan, to meditate, to reflect. In re Thompson's Es-
tate, 72 Utah, 17, 269 P. 103, 115.
CONTEMPLATION. The act of the mind in con-
sidering with attention. Continued attention of
the mind to a particular subject. Consideration
of an act or series of acts with the intention of
doing or adopting them. The consideration of an
event or state of facts with the expectation that
it will transpire.
CONTEMPLATION OF BANKRUPTCY. Con-
templation of the breaking up of one's business
or an inability to continue it; knowledge of, and
action with reference to, a condition of bankruptcy
or ascertained insolvency, coupled with an inten-
tion to commit what the law declares to be an
"act of bankruptcy," or to make provision against
the consequences of insolvency, or to defeat the
general distribution of assets which would take
place under a proceeding in bankruptcy. Buck-
ingham v. McLean, 13 How. 167, 14 L.Ed. 90; In
re Carmichael, D.C.Iowa, 96 F. 594.
CONTEMPLATION OF DEATH. The apprehen-
sion or expect ation of approaching dissolution;
not that general expectation which every mortal
entertains, but the apprehension which arises
from some presently existing sickness or physical
condition or from some impending danger. As
applied to transfers of property, the phrase "in
contemplation of death" means that thought of
death is the impelling cause of transfer and that
motive which induces transfer is of sort which
leads to testamentary disposition and is practi-
cally equivalent to "causa mortis." In re Cornell's
Estate, 73 N.Y.S. 32, 66 App.Div. 162; Nicholas
v. Martin, 128 N.J.Eq. 344, 15 A.2d 235, 243; Pate
v. C. I. R., C.C.A.8, 149 F.2d 669, 670.
CONTEMPLATION OF INSOLVENCY. Knowl-
edge of, and action with reference to, an exist-
ing or contemplated state of insolvency, with a
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CONTEIVIPORANEA
design to make provision against its results or to
defeat the operation of the insolvency laws.
Flockhart Foundry Co. v. Cox Automatic Pipe
Bending Co., 95 N.J.Eq. 382, 123 A. 151, 152.
CONTEMPORANEA EXPOSITIO. Lat. Contem-
poraneous exposition, or construction; a con-
struction drawn from the time when, and the cir-
cumstances under which, the subject-matter to
be construed, as a statute or custom, originated.
CONTEMPORANEA EXPOSITIO EST OPTIMA
ET FORTISSIMA IN LEGE. Contemporaneous
exposition is the best and strongest in the law.
2 Inst. 11. A statute is best explained by follow-
ing the construction put upon it by judges who
lived at the time it was made, or soon after. 10
Coke, 70; Broom, Max. 682.
CONTEMPT. A willful disregard or disobedience
of a public authority.
CONTEMPT OF COURT. Any act which is cal-
culated to embarrass, hinder, or obstruct court in
administration of justice, or which is calculated
to lessen its authority or its dignity. Ex parte
Hobrook, 133 Me. 276, 177 A. 418, 420. Commit-
ted by a person who does any act in willful con-
travention of its authority or dignity, or tending
to impede or frustrate the administration of jus-
tice, or by one who, being under the court's au-
thority as a party to a proceeding therein, will-
fully disobeys its lawful orders or fails to com-
ply with an undertaking which he has given.
Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621, 622,
23 A.L.R. 183.
Classification
Contempts are of two kinds, direct and con-
structive.
Direct contempts are those committed in the
immediate view and presence of the court (such
as insulting language or acts of violence) or so
near the presence of the court as to obstruct or
interrupt the due and orderly course of proceed-
ings. These are punishable summarily. They
are also called "criminal" contempts, but that
term is better used in contrast with "civil" con-
tempts. See infra. State v. McClaugherty, 33
W.Va. 250, 10 S.E. 407. Pelletier v. Glacier County,
Mont., 107 Mont. 221, 82 P.2d 595, 597.
Constructive (or indirect) contempts are those
which arise from matters not occurring in or near
the presence of the court, but which tend to ob-
struct or defeat the administration of justice,
and the term is chiefly used with reference to the
failure or refusal of a party to obey a lawful or-
der, injunction, or decree of the court laying upon
him a duty of action or forbearance. Maryott v.
Maryott, 124 Neb. 274, 246 N.W. 343.
Constructive contempts were formerly called "consequen-
tial," and this term is still in occasional use.
Contempts are also classed as civil or criminal.
The former are those quasi contempts which
consists in the failure to do something which the
party is ordered by the court to do for the bene-
fit or advantage of another party to the proceed-
ing before the court, while criminal contempts
are acts done in disrespect of the court or its
process or which obstruct the administration of
justice or tend to bring the court into disrespect.
A civil contempt is not an offense against the dig-
nity of the court, but against the party in whose
behalf the mandate of the court was issued, and
a fine is imposed for his indemnity. But criminal
contempts are offenses or injuries offered to the
court, and a fine or imprisonment is imposed upon
the contemnor for the purpose of punishment.
Staley v. South Jersey Realty Co., 90 A. 1042, 1043,
83 N.J.Eq. 300, L.R.A.1917B, 113, Ann.Cas.1916E,
955; Fenton v. Walling, C.C.A.Cal., 139 F.2d 608,
609.
CONTEMPT OF CONGRESS, LEGISLATURE, or
PARLIAMENT. Whatever obstructs or tends to
obstruct the due course of proceeding of either
house, or grossly reflects on the character of a
member of either house, or imputes to him what
it would be a libel to impute to an ordinary per-
son, is a contempt of the house, and thereby a
breach of privilege. Sweet.
CONTEMPTIBILITER. Lat. Contemptuously.
In old English law. Contempt, contempts.
Fleta, lib. 2, c. 60, § 35.
CONTENEMENTUM. See Wainagium; Content-
ment.
CONTENTIOUS. Contested; adversary; litigat-
ed between adverse or contending parties; a ju-
, dicial proceeding not merely ex parte in its char-
acter, but comprising attack and defense as be-
; tween opposing parties, is so called. The litigious
proceedings in ecclesiastical courts are sometimes
said to belong to its "contentious" jurisdiction, in
contradistinction to what is called its "voluntary"
jurisdiction, which is exercised in the granting of
licenses, probates of wills, dispensations, facul-
ties, etc.
CONTENTIOUS JURISDICTION. In English ec-
clesiastical law. That branch of the jurisdiction
of the ecclesiastical courts which is exercised upon
adversary or contentious (opposed, litigated) pro-
ceedings.
CONTENTIOUS POSSESSION. In stating the
rule that the possession of land necessary to give
rise to a title by prescription must be a "conten-
tious" one, it is meant that it must be based on
opposition to the title of the rival claimant (not
in recognition thereof or subordination thereto)
and that the opposition must be based on good
grounds, or such as might be made the subject
of litigation. Railroad Co. v. McFarlan, 43 N.J.
L. 621.
CONTENTMENT, CONTENEMENT. A man's
countenance or credit, which he has together with,
and by reason of, his freehold; or that which is
necessary for the support and maintenance of
men, agreeably to their several qualities or states
of life. Wharton; Cowell.
Comfort; consolation; ease; enjoyment; hap-
piness; pleasure; satisfaction. National Surety
Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 295.
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CONTINGENCY
CONTENTS. The contents of a promissory note
or other commercial instrument or chose in ac-
tion means the specific sum named therein and
payable by the terms of the instrument. Trading
Co. v. Morrison, 20 S.Ct. 869, 178 U.S. 262, 44 L.
Ed. 1061.
CONTENTS AND NOT CONTENTS. In parlia-
mentary law. The "contents" are those who, in
the house of lords, express assent to a bill; the
"not" or "non contents" dissent. May, Parl. Law,
cc. 12, 357.
CONTENTS UNKNOWN. Words sometimes an-
nexed to a bill of lading of goods in cases. Their
meaning is that the master only means to ac-
knowledge the shipment, in good order, of the cas-
es, as to their external condition. Miller v. Rail-
road Co., 90 N.Y. 433, 43 Am.Rep. 179.
CONTERMINOUS. Adjacent; adjoining; having
a common boundary; coterminous.
CONTEST, v. To make defense to an adverse
claim in a court of law; to oppose, resist, or dis-
pute the case made by a plaintiff. Pratt v. Breck-
inridge, 112 Ky. 1, 65 S.W. 136; Parks v. State,
100 Ala. 634, 13 So. 756. To strive, to win or hold;
to controvert, litigate, call in question, challenge;
to defend, as a suit or other proceeding. Equita-
ble Life Assur. Soc. of the United States v. First
Nat. Bank of Birmingham, C.C.A.Ala., 113 F.2d
272, 274.
CONTESTATIO LITIS. In Roman law. Con-
testation of suit; the framing an issue; joinder
in issue. The formal act of both the parties with
which the proceedings in jure were closed when
they led to a judicial investigation, and by which
the neighbors whom the parties brought with
them were called to testify. Mackeld, Rom.Law,
§ 219.
In old English law. Coming to an issue; the
issue so produced. Crabb, Eng.Law, 216.
CONTESTATIO LITIS EGET TERMINOS CON-
TRADICTARIOS. An issue requires terms of
contradiction. Jenks Cent. 117. To constitute an
issue, there must be an affirmative on one side
and a negative on the other.
CONTESTATION OF SUIT. In an ecclesiastical
cause, that stage of the suit which is reached
when the defendant has answered the libel by
giving in an allegation.
CONTESTED ELECTION. This phrase has no
technical or legally defined meaning. An election
may be said to be contested whenever an objection
is formally urged against it which, if found to be
true in fact, would invalidate it. This is true both
as to objections founded upon some constitutional
provision and to such as are based on statutes.
Robertson v. State, 109 Ind. 116, 10 N.E. 600.
CONTEXT. The context of a particular sentence
or clause in a statute, contract, will, etc., com-
prises those parts of the text which immediately
precede and follow it. The context may some-
times be scrutinized, to aid in the interpretation of
an obscure passage.
CONTIGUOUS. In close proximity; near, though
not in contact; neighboring; adjoining; near in
succession; in actual close contact; touching;
bounded or traversed by. The term is not synony-
mous with "vicinal." Ehle v. Tenney Trading Co.,
56 Ariz. 241, 107 P.2d 210, 212.
CONTIGUOUS AND COMPACT. In respect of
school district, territory so closely united and so
nearly adjacent to the school building that all
the children residing in the district, their ages con-
sidered, may conveniently travel from their homes
to the school building and return in a reasonable
time and with a reasonable degree of comfort.
People v. Simpson, 308 Ill. 418, 139 N.E. 890, 893;
People v. Dodds, 310 Ill. 607, 142 N.E. 241, 242.
CONTINENCIA. In Spanish law. Continency or
unity of the proceedings in a cause. White, New
Recop. b. 3, tit. 6, c. 1.
CONTINENS. In the Roman law. Continuing;
holding together. Adjoining buildings were said
to be continentia.
CONTINENTAL. Pertaining or relating to a con-
tinent; characteristic of a continent; as broad in
scope or purpose as a continent. Continental Ins.
Co. v. Continental Fire Ass'n, C.C.Tex., 96 F. 848.
CONTINENTAL CONGRESS. The first national
legislative assembly in the United States, which
met in 1774, in pursuance of a recommendation
made by Massachusetts and adopted by the other
colonies. In this congress all the colonies were
represented except Georgia. The delegates were
in some cases chosen by the legislative assemblies
in the states; in others by the people directly.
The powers of the congress were undefined, but
it proceeded to take measures and pass resolu-
tions which concerned the general welfare and
had regard to the inauguration and prosecution of
the war for independence. Black, Const.Law (3d
Ed.) 40; 1 Story, Const. §§ 198-217.
CONTINENTAL CURRENCY. Paper money is-
sued under the authority of the continental con-
gress. Wharton v. Morris, 1 Da11. 125, 1 L.Ed. 65.
CONTINENTIA. In old English practice. Contin-
uance or connection. Applied to the proceedings
in a cause. Bract. fol. 362b.
CONTINGENCY. Quality of being contingent or
casual; the possibility of coming to pass; an
event which may occur; a possibility; a casualty.
Vandegrift v. Riley, 30 P.2d 516, 523, 220 Cal.
340. A fortuitous event, which comes without de-
sign, foresight, or expectation. People v. Yonkers,
39 Barb. (N.Y.) 272; American Ins. Co. v. Black, 46
Ga.App. 471, 168 S.E. 85.
CONTINGENCY OF A PROCESS. In Scotch law.
Where two or more processes are so connected
that the circumstances of the one are likely to
throw light on the others, the process first en-
rolled is considered as the leading process, and
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CONTINGENCY
those subsequently brought into court, if not
brought in the same division, may be remitted to
it, ob contingentiam, on account of their nearness
or proximity in character to it. The effect of re-
mitting processes in this manner is merely to
bring them before the same division of the court
or same lord ordinary. In other respects they
remain distinct. Bell.
CONTINGENCY WITH DOUBLE ASPECT. A re-
mainder is said to be "in a contingency with dou-
ble aspect," when there is another remainder limit-
ed on the same estate, not in derogation of the
first, but as a substitute for it in case it should fail.
Fearne, Rem. 373.
COlsITINGENT. Possible, but not assured; doubt-
ful or uncertain, conditioned upon the occurrence
of some future event which is itself uncertain, or
questionable. Verdier v. Roach, 96 Cal. 467, 31 P.
554, synonymous with provisional. Robinson v.
Edler, C.C.A.Nev., 78 F.2d 817, 819.
This term, when applied to a use, remainder, devise, be-
quest, or other legal right or interest, implies that no
present interest exists, and that whether such interest or
right ever will exist depends upon a future uncertain event.
Jemison v. Blowers, 5 Barb. (N.Y.) 692.
As to contingent "Damages," "Fee," "Legacy,"
"Limitation," "Remainder," "Trust," and "Use,"
see those titles.
CONTINGENT CLAIM. One which has not ac-
crued and which is dependent on some future
event that may never happen. Hospes v. Car Co.,
48 Minn. 174, 50 N.W. 1117, 15 L.R.A. 470, 31 Am.
St.Rep. 637; Hicks v. Wilbur, 38 R.I. 268, 94 A. 872,
874; Cotting v. Hooper, Lewis & Co., 220 Mass.
273, 107 N.E. 931; In re Lexington Surety & In-
demnity Co., 272 N.Y. 210, 5 N.E.2d 204, 205.
CONTINGENT ESTATE, INTEREST or RIGHT.
An estate, interest or right which depends for its
effect upon an event which may or may not hap-
pen; as an estate limited to a person not in else,
or not yet born. 2 Crabb, Real Prop. p. 4, § 946;
Avery v. Curtiss, 108 Okl. 154, 235 P. 195, 197;
Kahn v. Rockhill, 132 N.J.Eq. 188, 28 A.2d 34, 36.
CONTINGENT FUND. One set up by a munici-
pality to pay expense items which will necessarily
arise during the year but cannot appropriately be
classified under any of the specific purposes for
which other taxes are levied. First Nat. Bank of
Norman v. City of Norman, 182 Okl. 7, 75 P.2d
1109, 1110.
CONTINGENT INTEREST IN PERSONAL
PROPERTY. A future interest not transmissible
to the representatives of the party entitled there-
to, in case he dies before it vests in possession.
Mozley & Whitley.
Thus, if a testator leaves the income of a fund to his
wife for life, and the capital of the fund to be distributed
among such of his children as shall be living at her death,
the interest of each child during the widow's life-time is
contingent, and in case of his death is not transmissible to
his representatives. Mozley & Whitley.
CONTINGENT LIABILITY. One which is not
now fixed and absolute, but which will become
so in case of the occurrence of some future and
uncertain event. Warren Co. v. C. I. R., C.C.A.
Ga., 135 F.2d 679, 684, 685.
CONTINUAL CLAIM. In old English law. A for-
mal claim made by a party entitled to enter upon
any lands or tenements, but deterred from such
entry by menaces, or bodily fear, for the purpose
of preserving or keeping alive his right. It was
called "continual," because it was required to be
repeated once in the space of every year and day.
It had to be made as near to the land as the party
could approach with safety, and, when made in
due form, had the same effect with, and in all re-
spects amounted to, a legal entry. Litt. §§ 419-
423; Co.Litt. 250a; 3 Bl.Comm. 175.
CONTINUANCE. The adjournment or postpone-
ment of an action pending in a court, to a subse-
quent day of the same or another term. Com. v.
Maloney, 145 Mass. 205, 13 N.E. 482. Ferber v.
Brueckl, 332 Mo. 892, 17 S.W.2d 524, 527.
Also the entry of a continuance made upon the
record of the court, for the purpose of formally
evidencing the postponement, or of connecting
the parts of the record so as to make one continu-
ous whole.
CONTINUANDO. In pleading. A form of alle-
gation in which the trespass, criminal offense, or
other wrongful act complained of is charged to
have been committed on a specified day and to
have "continued" to the present time, or is averred
to have been committed at divers days and times
within a given period or on a specified day and on
divers other days and times between that day and
another. This is called "laying the time with a
continuando." State v. Brown, 10 Okl.Cr. 52, 133
P. 1143, 1144.
CONTINUING. Enduring; not terminated by a
single act or fact; subsisting for a definite period
or intended to cover or apply to successive similar
obligations or occurrences.
As to continuing "Breach," "Consideration,"
"Conspiracy," "Covenant," "Damages," "Guaran-
ty," "Nuisance," and "Offense," see those titles.
CONTINUOUS. Uninterrupted; unbroken; not
intermittent or occasional; so persistently repeat-
ed at short intervals as to constitute virtually an
unbroken series. Ingraham v. Hough, 46 N.C. 43.
Connected, extended, or prolonged without cessa-
tion or interruption of sequence. Sullivan v.
John Hancock Mut. Life Ins. Co. of Boston, Mo.
App., 110 S.W.2d 870, 877.
As to continuous "Crime" and "Easements," see
those titles.
CONTINUOUS ADVERSE USE. Is interchange-
able with the term "uninterrupted adverse use."
Davidson v. Nicholson, 59 Ind. 411.
CONTINUOUS INJURY. One recurring at re-
peated intervals, so as to be of repeated occur-
rence; not necessarily an injury that never ceases.
Wood v. Sutcliffe, 8 Eng.Law & Eq. 217.
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CONTINUOUSLY. Uninterruptedly; in unbroken
sequence; without intermission or cessation;
without intervening time; with continuity or con-
tinuation.  U. S. v. Wooten, C.C.A.N.M., 40 F.2d
882, 887.
CONTIONES. General meetings of the Roman
people. Launspach, State and Family in Early
Rome 69.
CONTRA. Against, confronting, opposite to; on
the other hand; on the contrary.
The word is used in many Latin phrases, as appears by
the following titles. In the books of reports, contra, ap-
pended to the name of a judge or counsel, indicates that
he held a view of the matter in argument contrary to that
next before advanced. Also, after citation of cases in sup-
port of a position, contra is often prefixed to citations of
cases opposed to it.
CONTRA BONOS MORES. Against good morals.
Contracts contra bonos mores are void.
CONTRA FORMAM COLLATIONIS. In old Eng-
lish law. A writ that issued where lands given in
perpetual alms to lay houses of religion, or to an
abbot and convent, or to the warden or master of
a hospital and his convent, to find certain poor
men with necessaries, and do divine service, etc.,
were alienated, to the disherison of the house and
church. By means of this writ the donor or his
heirs could recover the lands. Reg.Orig. 238; Fitz.
Nat.Brev. 210.
CONTRA FORMAM DONI. Against the form of
the grant. See Formedon.
CONTRA FORMAM FEOFFAMENTI. In old
English law. A writ that lay for the heir of a ten-
ant, enfeoffed of certain lands or tenements, by
charter of feoffment from a lord to make certain
services and suits to his court, who was after-
wards distrained for more services than were
mentioned in the charter. Reg.Orig. 176; Old
Nat.Brev. 162.
CONTRA FORMAM STATUTI. In criminal plead-
ing. (Contrary to the form of the statute in such
case made and provided.) The usual conclusion
of every indictment, etc., brought for an offense
created by statute.
CONTRA JUS BELLI. Lat. Against the law of
war. 1 Kent.Comm. 6.
CONTRA JUS COMMUNE. Against common
right or law; contrary to the rule of the common
law. Bract. fol. 48b.
CONTRA LEGEM FACIT QUI ID FACIT QUOD
LEX PROHIBIT; IN FRAUDEM VERO QUI,
SALVIS VERBIS LEGIS, SENTENTIAM EJUS
CIRCUMVENIT. He does contrary to the law who
does what the law prohibits; he acts in fraud of
the law who, the letter of the law being inviolate,
uses the law contrary to its intention. Dig. 1, 3,
29.
CONTRACAUSATOR
CONTRA NEGANTEM PRINCIPIA NON EST
DISPUTANDUM. There is no disputing against
one who denies first principles. Co.Litt. 343.
CONTRA NON VALENTEM AGERE NULLA
CURRIT PRIESCRIPTIO. No prescription runs
against a person unable to bring an action.
Broom, Max. 903.
CONTRA OMNES GENTES. Against all people.
Formal words in old covenants of warranty. Fle-
ta, lib. 3, c. 14, § 11.
CONTRA PACEM. Against the peace. A phrase
used in the Latin forms of indictments, and also
of actions for trespass, to signify that the offense
alleged was committed against the public peace,
1. e., involved a breach of the peace. The full for-
mula was contra pacem domini regis, against the
peace of the lord the king. In modern pleading, in
this country, the phrase "against the peace of the
commonwealth" or "of the people" is used.
CONTRA PROFERENTEM. Against the party
who proffers or puts forward a thing. J. Zim-
mern's Co. v. Granade, 212 Ala. 172, 102 So. 210,
211.
CONTRA TABULAS. In the civil law. Against
the will, (testament.) Dig. 37, 4.
CONTRA VADIUM ET PLEGIUM. In old Eng-
lish law. Against gage and pledge. Bract. fol.
15b.
CONTRA VERITATEM LEX NUNQUAM ALI-
QUID PERMITTIT. The law never suffers any-
thing contrary to truth. 2 Inst. 252.
CONTRABAND. Against law or treaty; prohibit-
ed. Goods exported from or imported into a
country against its laws. Brande. Articles, the
importation or exportation of which is prohibited
by law. State v. Butler, 148 S.C. 495, 146 S.E. 418,
419.
CONTRABAND OF WAR. Certain classes of
merchandise, such as arms and ammunition,
which, by the rules of international law, cannot
lawfully be furnished or carried by a neutral na-
tion to either of two belligerents; if found in
transit in neutral vessels, such goods may be
seized and condemned for violation of neutrality.
The Peterhoff, 5 Wall. 58, 18 L.Ed. 564; Richard-
son v. Insurance Co., 6 Mass. 114, 4 Am.Dec. 92.
A recent American author on international law says that,
"by the term 'contraband of war,' we now understand a
class of articles of commerce which neutrals are prohibited
from furnishing to either one of the belligerents, for the
reason that, by so doing, injury is done to the other bellig-
erent;" and he treats of the subject, chiefly, in its relation
to commerce upon the high seas. Hall, Int.Law, 570, 592;
Elrod v. Alexander, 4 Heisk. (Tenn.) 345.
CONTRABAND OIL. Oil produced contrary to
state laws. Panama Refining Co. v. Railroad Com-
mission of Texas, D.C.Tex., 16 F.Supp. 289, 291.
CONTRA LEGEM TERRIE. Against the law of
the land.
CONTRACAUSATOR. A criminal; one prosecut-
ed for a crime.
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CONTRACT
CONTRACT. A promissory agreement between
two or more persons that creates, modifies, or de-
stroys a legal relation. Buffalo Pressed Steel Co.
v. Kirwan, 138 Md. 60, 113 A. 628, 630; Mexican
Petroleum Corporation of Louisiana v. North Ger-
man Lloyd, D.C.La., 17 F.2d 113, 114.
An agreement, upon sufficient consideration, to
do or not to do a particular thing. 2 Bl.Comm.
442; 2 Kent, Comm. 449. Justice v. Lang, 42 N.Y.
496, 1 Am.Rep. 576; Rabon v. State Finance Cor-
poration, 203 S.C. 183, 26 S.E.2d 501, 502.
An agreement between two or more parties, preliminary
Step in making of which is offer by one and acceptance by
other, in which minds of parties meet and concur in under-
standing of terms. Lee v. Travelers' Ins. Co. of Hartford,
Conn., 173 S.C. 185, 175 S.E. 429.
A deliberate engagement between competent parties, up-
on a legal consideration, to do, or abstain from doing,
some act. Wharton; Smith v. Thornhill, Tex.Com.App. 25
S.W.2d 597, 599.
It is agreement creating obligation, in which there must
be competent parties, subject-matter, legal consideration,
mutuality of agreement, and mutuality of obligation, and
agreement must not be so vague or uncertain that terms
are not ascertainable. H. Liebes & Co. v. Klengenberg, C.
C.A.Cal., 23 F.2d 611, 612.
A contract or agreement is either where a promise is
made on one side and assented to on the other; or where
two or more persons enter into engagement with each
other by a promise on either side. 2 Steph.Comm. 54.
The writing which contains the agreement of
parties, with the terms and conditions, and which
serves as a proof of the obligation.
Certain and Hazardous
Certain contracts are those in which the thing to
be done is supposed to depend on the will of the
party, or when, in the usual course of events, it
must happen in the manner stipulated. Hazardous
contracts are those in which the performance of
that which is one of its objects depends on an un-
certain event. Civ.Code La. 1776.
Classification
Contracts may be classified on several different
methods, according to the element in them which
is brought into prominence. The usual classifica-
tions are as follows:
Commutative and Independent
Commutative contracts are those in which what
is done, given, or promised by one party is consid-
ered as an equivalent to or in consideration of
what is done, given, or promised by the other.
Civ.Code La. 1768; Ridings v. Johnson, 9 Sup.Ct.
72, 128 U.S. 212, 32 L.Ed. 401. Independent con-
tracts are those in which the mutual acts or prom-
ises have no relation to each other, either as
equivalents or as considerations. Civ.Code La.
1769.
Conditional Contract
An executory contract the performance of which
depends upon a condition. It is not simply an
executory contract, since the latter may be an ab-
solute agreement to do or not to do something,
but it is a contract whose very existence and per-
formance depend upon a contingency. Railroad
Co. v. Jones, 2 Cold. (Tenn.) 584; French v. Os-
mer, 67 Vt. 427, 32 A. 254.
Consensual and Real
Consensual contracts are such as are founded
upon and completed by the mere agreement of the
contracting parties, without atry external formali-
ty or symbolic act to fix the obligation. Real con-
tracts are those in which it is necessary that there
should be something more than mere consent,
such as a loan of money, deposit or pledge, which,
from their nature, require a delivery of the thing,
(res.) Inst. 3, 14, 2; Id. 3, 15; Halifax, Civil Law,
b. 2, c. 15, No. 1. In the common law a contract
respecting real property (such as a lease of land
for years) is, called a "real" contract. 3 Coke,
22a.
Constructive Contract
Constructive contracts are such as arise when
the law prescribes the rights and liabilities of per-
sons who have not in reality entered into a con-
tract at all, but between whom circumstances
make it just that one should have a right, and the
other be subject to a liability, similar to the rights
and liabilities in cases of express contract. Dono-
van v. Kansas City, 352 Mo. 430, 175 S.W.2d 874,
884.
Divisible and Indivisible
The effect of the breach of a contract depends
in a large degree upon whether it is to be regarded
as indivisible or divisible; i. e. whether it forms a
whole, the performance of every part of which is
a condition precedent to bind the other party, or
is composed of several independent parts, the
performance of any one of which will bind the
other party pro tanto. The only test is whether
the whole quantity of the things concerned, or
the sum of the acts to be done, is of the essence of
the contract. It depends, therefore, in the last
resort, simply upon the intention of the parties.
Integrity Flooring v. Zandon Corporation, 130
N.J.L. 244, 32 A.2d 507, 509.
When a consideration is entire and indivisible,
and it is against law, the contract is void in toto.
Frazier v. Thompson, 2 Watts & S. (Pa.) 235.
When the consideration is divisible, and part of it
is illegal, the contract is void only pro tanto.
Harr.Contr. 132; Gelpcke v. Dubuque, 1 Wall. 220,
17 L.Ed. 530.
Entire and Severable
An entire contract is one the consideration of
which is entire on both sides. The entire fulfill-
ment of the promise by either is a condition preced-
ent to the fulfillment of any part of the promise
by the other. Whenever, therefore, there is a
contract to pay the gross sum for a certain and
definite consideration, the contract is entire. A
severable contract is one the consideration of
which is, by its terms, susceptible of apportion-
ment on either side, so as to correspond to the un-
ascertained consideration on the other side, as a
contract to pay a person the worth of his services
so long as he will do certain work; or to give a
certain price for every bushel of so much corn as
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CONTRACT
corresponds to a sample. Orenstein v. Kahn, 13
Del.Ch. 376, 119 A. 444, 446; Integrity Flooring v.
Zandon Corporation, 130 N.J.L. 244, 32 A.2d 507,
509; Ruby v. United Sugar Cos., 56 Ariz. 535, 109
P.2d 845, 848.
Where a contract consists of many parts; which may be
considered as parts of one whole, the contract is entire.
When the parts may be considered as so many distinct con-
tracts, entered into at one time, and expressed in the same
instrument, but not thereby made one contract, the con-
tract is a separable contract. But, if the consideration of
the contract is single and entire, the contract must be held
to be entire, although the subject of the contract may con-
sist of several distinct and wholly independent items. 2
Pars.Cont. 517.
Executed and Executory
Contracts are also distinguished into executed
and executory; executed, where nothing remains
to be done by either party, and where the transac-
tion is completed at the moment that the arrange-
ment is made, as where an article is sold and de-
livered, and payment therefor is made on the spot;
executory, where some future act is to be done,
as where an agreement is made to build a house
in six months, or to do an act on or before some
future day, or to lend money upon a certain inter-
est, payable at a future time. Farrington v. Ten-
nessee, 95 U.S. 683, 24 L.Ed. 558; Fox v. Kitton,
19 Ill. 532; Mather v. Mather, 25 Ca1.2d 582, 154
P.2d 684, 686.
But executed contracts are not properly contracts at all,
except reminiscently. The term denotes rights in property
which have been acquired by means of contract; but the
parties are no longer bound by a contractual tie. Mettel
v. Gales, 12 S.D. 632, 82 N.W. 181.
Express and Implied
An express contract is an actual agreement of
the parties, the terms of which are openly uttered
or declared at the time of making it, being stated
in distinct and explicit language, either orally or
in writing. 2 Bl.Comm. 443; 2 Kent, Comm. 450;
Linn v. Ross, 10 Ohio 414, 36 Am.Dec. 95; A. J.
Yawger & Co. v. Joseph, 184 Ind. 228; 108 N.E.
774, 775; In re Pierce, Butler & Pierce Mfg. Co.,
D.C.N.Y., 231 F. 312, 318.
An implied contract is one not created or evi-
denced by the explicit agreement of the parties,
but inferred by the law, as a matter of reason and
justice from their acts or conduct, the circum-
stances surrounding the transaction making it a
reasonable, or even a necessary, assumption that a
contract existed between them by tacit understand-
ing. Miller's Appeal, 100 Pa. 568, 45 Am.Rep. 394;
Landon v. Kansas City Gas Co., C.C.A.Kan., 10
F.2d 263, 266; Caldwell v. Missouri State Life Ins.
Co., 230 S.W. 566, 568, 148 Ark. 474; Cameron, to
Use of Cameron, v. Eynon, 332 Pa. 529, 3 A.2d 423,
424; American La France Fire Engine Co., to Use
of American La France & Foamite Industries, v.
Borough of Shenandoah, C.C.A.Pa., 115 F.2d 806,
867.
Implied contracts are sometimes subdivided into those
"implied in fact" and those "implied in law," the former
being covered by the definition just given, while the latter
are obligations imposed upon a person by the law, not in
pursuance of his intention and agreement, either expressed
or implied, but even against his will and design, because
the circumstances between the parties are such as to ren-.
der it just that the one should have a right, and the other
a corresponding liability, similar to those which would
arise from a contract between them. This kind of obliga-
tion therefore rests on the principle that whatsoever it is
certain a man ought to do that the law will suppose him to
have promised to do. And hence it is said that, while the
liability of a party to an express contract arises directly
from the contract, it is just the reverse in the case of a
contract "implied in law," the contract there being im-
plied or arising from the liability. Bliss v. Hoyt, 70 Vt.
534, 41 A. 1026; Kellum v. Browning's Adm'r, 231 Ky. 308,
21 S.W.2d 459, 465. But obligations of this kind are not
properly contracts at all, and should not be so denominat-
ed. There can be no true contract without a mutual and
concurrent intention of the parties. Such obligations are
more properly described as "quasi contracts." Union Life
Ins. Co. v. Glasscock, 270 Ky. 750, 110 S.W.2d 681, 686, 114
A. L.R. 373.
Fair and Reasonable Contract
See Fair and Reasonable Contract.
Gratuitous and Onerous
Gratuitous contracts are those of which the ob-
ject is the benefit of the person with whom it is
made, without any profit or advantage received or
promised as a consideration for it. It is not, how-
ever, the less gratuitous if it proceed either from
gratitude for a benefit before received or from the
hope of receiving one thereafter, although such
benefit be of a pecuniary nature. Onerous con-
tracts are those in which something is given or
promised as a consideration for the engagement
or gift, or some service, interest, or condition is im-
posed on what is given or promised, although un-
equal to it in value. Civ.Code La.1773, 1774; Peni-
tentiary Co. v. Nelms, 65 Ga. 505, 38 Am.Rep. 793.
A gratuitous contract is sometimes called a con-
tract of beneficence. Howe, Studies in the Civil
Law 107.
Joint and Several
A joint contract is one made by two or more
promisors, who are jointly bound to fulfill its
obligations, or made to two or more promisees,
who are jointly entitled to require performance of
the same. A contract may be "several" as to any
one of several promisors or promisees, if he has a
legal right (either from the terms of the agree-
ment or the nature of the undertaking) to enforce
his individual interest separately from the other
parties. Jens-Marie Oil Co. v. Rixse, 72 Okl. 93,
178 P. 658. Generally all contracts are joint
where the interest of the parties for whose benefit
they are created is joint, and separate where that
interest is separate. Shurtleff v. Udall, 97 Vt. 156,
122 A. 465, 468.
Mutual Interest, Mixed, etc.
Contracts of "mutual interest" are such as are
entered into for the reciprocal interest and utility
of each of the parties; as sales, exchange, part-
nership, and the like. "Mixed" contracts are
those by which one of the parties confers a benefit
on the other, receiving something of inferior value
in return, such as a donation subject to a charge.
Contracts "of beneficence" are those by which only
one of the contracting parties is benefited; as
loans, deposit and mandate. Poth.Obl. 1, 1, 1, 2.
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Parol
A contract not entirely in writing. Louisville,
N. A. and C. Ry. Co. v. Reynolds, 118 Ind. 170,
173, 20 N.E. 711.
A written contract, which leaves some essential term
thereof to be shown by parol, is only "parol contract" not
enforceable under statute of fraud. Sheldmyer v. Bias, 112
Ind.App. 522, 45 N.E.2d 347, 349.
Personal Contract
A contract relating to personal property, or
one which so far involves the element of personal
knowledge or skill or personal confidence that it
can be performed only by the person with whom
made, and therefore is not binding on his execu-
tor. See Janin v. Browne, 59 Cal. 44; Lucas v.
J. H. Gross Motor Car Co., 27 Ohio App. 183, 161
N.E. 362, 363.
Pre-contract
An obligation growing out of a contract or con-
tractual relation, of such a nature that it debars
the party from legally entering into a similar con-
tract at a later time with any other person; par-
ticularly applied to marriage.
Principal and Accessory
A principal contract is one entered into by both
parties on their own account or in the several
qualities they assume. It is one which stands by
itself, justifies its own existence, and is not sub-
ordinate or auxiliary to any other. Accessory
contracts are those made for assuring the per-
formance of a prior contract, either by the same
parties or by others, such as suretyship, mortgage,
and pledge. Civ.Code La. art. 1771.
Quasi Contracts
In the civil law. A contractual relation aris-
ing out of transactions between the parties which
give them mutual rights and obligations, but do
not involve a specific and express convention or
agreement between them. Keener, Quasi Contr.
1; Elbert County v. Brown, 16 Ga.App. 834, 86
S.E. 651, 665. The lawful and purely voluntary
acts of a man, from which there results any ob-
ligation whatever to a third person, and some-
times a reciprocal obligation between the parties.
Civ. Code La. art. 2293.
Persons who have not contracted with each other are
often regarded by the Roman law, under a certain state
of facts, as if they had actually concluded a convention be-
tween themselves. The legal relation which then takes
place between these persons, which has always a similarity
to a contract obligation, is therefore termed "obligatio
quasi ex contractu." Such a relation arises from the con-
ducting of affairs without authority, (negotiorum gestio,)
from the payment of what was not due, (solutio indebiti,)
from tutorship and curatorship, and from taking possession
of an inheritance. Mackeld.Rom.Law § 491.
Legal fiction invented by common law courts
to permit recovery by contractual remedy of
assumpsit in cases where, in fact, there is no con-
tract, but where circumstances are such that jus-
tice warrants a recovery as though there had been
a promise. Clark v. Peoples Savings and Loan
Ass'n of De Kalb County, 221 Ind. 168, 46 N.E.2d
681, 682, 144 A.L.R. 1495. It is not based on inten-
tion or consent of the parties, but Is founded on
considerations of justice and equity, and on doc-
trine of unjust enrichment. Bruggeman v. Inde-
pendent School Dist., No. 4, Union Tp., Mitchell
County, 227 Iowa 661, 289 N.W. 5, 8, 11.
It is not in fact a contract, but an obligation which the
law creates in absence of any agreement, when and because
the acts of the parties or others have placed in the posses-
sion of one person money, or its equivalent, under such
circumstances that in equity and good conscience he ought
not to retain it. Grossbier v. Chicago, St. P., M. & 0.
Ry. Co., 173 Wis. 503, 181 N.W. 746, 748; It is an implica-
tion of law. First Nat. Bank v. Matlock, 99 Okl. 150, 226
P. 328, 331, 36 A.L.R. 1088; Caldwell v. Missouri State
Life Ins. Co., 148 Ark. 474, 230 S.W. 566, 568.
It is what was formerly known as the contract implied
in law; it has no reference to the intentions or expres-
sions of the parties. The obligation is imposed despite,
and frequently in frustration of their intention. Town of
Balkan v. Village of Buhl, 158 Minn. 271, 197 N.W. 266, 35
A. L. R. 470.
Record, Specialty, Simple
Contracts of record are such as are declared
and adjudicated by courts of competent jurisdic-
tion, or entered on their records, including judg-
ments, recognizances, and statutes staple. Harde-
man v. Downer, 39 Ga. 425. These are not prop-
erly speaking contracts at all, though they may
be enforced by action like contracts. Specialties,
or special contracts, are contracts under seal, such
as deeds and bonds. Ludwig v. Bungart, 26 Misc.
Rep. 247, 56 N.Y.S. 51. All others are included in
the description "simple" contracts; that is, a
simple contract is one that is not a contract of
record and not under seal; it may be either writ-
ten or oral, in either case, it is called a "parol"
contract, the distinguishing feature being the lack
of a seal. Stackpole v. Arnold, 11 Mass. 30, 6 Am.
Dec. 150; 4 B. & Ald. 588; 2 Bla.Comm. 472.
Special Contract
A contract under seal; a specialty; as distin-
guished from one merely oral or in writing not
sealed. But in common usage this term is often
used to denote an express or explicit contract, one
which clearly defines and settles the reciprocal
rights and obligations of the parties, as distin-
guished from one which must be made out, and its
terms ascertained, by the inference of the law
from the nature and circumstances of the transac-
tion.
A special contract may rest in parol, and does not mean
a contract by specialty; it is defined as one with peculiar
provisions not found in the ordinary contracts relating to
the same subject-matter. Midland Roofing Mfg. Co. v.
Pickens, 96 S.C. 286, 80 S.E. 484, 485.
Subcontract
A contract subordinate to another contract,
made or intended to be made between the con-
tracting parties, on one part, or some of them,
and a stranger. 1 H.B1. 37, 45. One made under
a prior contract. Mobley v. Leeper Bros. Lumber
Co., 89 Okl. 95, 214 P. 174, 175.
Where 'a person has contracted for the performance of
certain work (e. g., to build a house,) and he in turn en-
gages a third party to perform the whole or a part of that
which is included in the original contract, (e. g., to do the
carpenter work,) his agreement with such third person is
called a "subcontract," and such person is called a "sub-
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CONTRACTUS
contractor." Central Trust Co. v. Railroad Co., C.C.Ky.,
54 F. 723 Lester v. Houston, 101 N.C. 605, 8 S.E. 366. The
term "subcontractor" means one who has contracted with
the original contractor for the performance of all or a
part of the work or services which such contractor has
himself contracted to perform. Republic Supply Co. v.
Allen, Tex.Civ.App., 262 S.W. 113, 114.
Unconscionable Contract
One which no sensible man not under delusion,
duress, or in distress would make, and such as
no honest and fair man would accept. Franklin
Fire Ins. Co. v. Noll, 115 Ind.App. 289, 58 N.E.2d
947, 949, 950.
Unilateral and Bilateral
A unilateral contract is one in which one party
makes an express engagement or undertakes a
performance, without receiving in return any ex-
press engagement or promise of performance
from the other. Bilateral (or reciprocal) con-
tracts are those by which the parties expressly
enter into mutual engagements, such as sale or
hire. Civ. Code La. art. 1765; Poth. Obl. 1, 1, 1,
2; Kling Bros. Engineering Works v. Whiting
Corporation, 320 Ill.App. 630, 51 N.E.2d 1004, 1007.
When the party to whom an engagement is made
makes no express agreement on his part, the con-
tract is called unilateral, even in cases where the
law attaches certain obligations to his acceptance.
La. Civ. Code, art. 1765. A contract is also said
to be "unilateral" when there is a promise on one
side only, the consideration on the other side being
executed. McMahan v. McMahon, 122 S.C. 336,
115 S.E. 293, 294, 26 A.L.R. 1295.
Usurious Contract
See that title.
Written Contract
A "written contract" is one which in all its terms
is in writing. Fey v. Loose-Wiles Biscuit Co., 147
Kan. 31, 75 P.2d 810, 813; and instrument signed
by one party is orally accepted by other, Reeves
Furniture Co. v. Simms, Tex.Civ.App., 59 S.W.2d
262, 263.
CONTRACT, ESTOPPEL BY. There are two
sorts of "estoppel by contract," estoppel to deny
truth of facts agreed on and settled by force of
entering into contract, and estoppel arising from
acts done under or in performance of contract.
In re Schofield's Estate, 101 Colo. 443, 73 P.2d 1381.
Finch v. Smith, 177 Okl. 307, 58 P.2d 850, 851.
"Estoppel by contract" is intended to embrace all cases
in which there is an actual or virtual undertaking to treat
a fact as settled. Jackson v. United Gas Public Service Co.,
198 So. 633, 640, 196 La. 1. It means party is bound by
terms of own contract until set aside or annulled for fraud,
accident, or mistake. United Fidelity Life Ins. Co. v.
Fowler, Tex.Civ.App., 38 S.W.2d 128, 131.
CONTRACT OF BENEVOLENCE. A contract
made for the benefit of one of the contracting
parties only, as a mandate or deposit.
CONTRACT OF RECORD. A contract of record
is one which has been declared and adjudicated
by a court having jurisdiction, or which is entered
of record in obedience to, or in carrying out, the
judgments of a court.
CONTRACT OF SALE. A contract by which one
of the contracting parties, called the "seller," en-
ters into an obligation to the other to cause him
to have freely, by a title of proprietor, a thing,
for the price of a certain sum of money, which
the other contracting party, called the "buyer,"
on his part obliges himself to pay. Topzant v.
Koshe, 242 Wis. 585, 9 N.W.2d 136, 138.
CONTRACT SYSTEM. As applied to state pris-
ons, this phrase signifies that the labor of the
prisoners is utilized by private persons or con-
tractors, who thus secure the profits of such labor.
People v. Hawkins, 157 N.Y. 1, 51 N.E. 257, 260, 42
L.R.A. 490, 68 Am.St.Rep. 736.
CONTRACTION. Abbreviation; abridgment or
shortening of a word by omitting a letter or let-
ters or a syllable, with a mark over the place
where the elision occurs. This was customary in
records written in the ancient "court hand," and
is frequently found in the books printed in black-
letter.
CONTRACTOR. This term is strictly applicable
to any person who enters into a contract (Kent v.
Railroad Co., 12 N.Y. 628), but is commonly re-
served to designate one who, for a fixed price,
undertakes to procure the performance of works
on a large scale, or the furnishing of goods in
large quantities, whether for the public or a com-
pany or individual. McCarthy v. Second Parish,
71 Me. 318, 36 Am.Rep. 320.
One who in pursuit of independent business
undertakes to perform a job or piece of work, re-
taining in himself control of means, method and
manner of accomplishing the desired result. Mar-
ion Malleable Iron Works v. Baldwin, 82 Ind.App.
206, 145 N.E. 559, 560.
CONTRACTUAL OBLIGATION. The obligation
which arises from a contract or agreement.
CONTRACTUS. Lat. Contract; a contract; con-
tracts.
CONTRACTUS BONZE FIDEL In Roman law.
Contracts of good faith. Those contracts which,
when brought into litigation, were not determined
by the rules of the strict law alone, but allowed
the judge to examine into the bona fides of the
transaction, and to hear equitable considerations
against their enforcement. In this they were op-
posed to contracts stricti juris, against which
equitable defenses could not be entertained.
CONTRACTUS CIVILES. In Roman law. Civil
contracts. Those contracts which were recognized
as actionable by the strict civil law of Rome, or
as being founded upon a particular statute, as
distinguished from those which could not be en-
forced in the courts except by the aid of the
praetor, who, through his equitable powers, gave
an action upon them. The latter were called
"contractus prcetorii."
397

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CONTROVER
CONTRECTATIO. In the civil and old English
law. Touching; handling; meddling. The act of
removing a thing from its place in such a man-
ner that, if the thing be not restored, it will
amount to theft.
CONTRECTATIO REI ALIENZE, ANIMO FUR-
AND!, EST FURTUM. Jenk. Cent. 132. The
touching or removing of another's property, with
an intention of stealing, is theft.
CONTREFACON. In French law. The offense
of printing or causing to be printed a book, the
copyright of which is held by another, without au-
thority from him. Merl. Repert.
CONTRE-MAITRE. In French marine law. The
chief officer of a vessel, who, in case of the sick-
ness or absence of the master, commanded in his
place. Literally, the countermaster.
CONTRIBUTE. To lend assistance or aid, or give
something, to a common purpose; to have a share
in any act or effect; to discharge a joint obliga-
tion. Christman v. Reichholdt, Mo.App., 150 S.
W.2d 527, 532; James McCord Co. v. Citizens Ho-
tel Co., Tex.Civ.App., 287 S.W. 906; Park v. Mis-
sionary Soc., 62 Vt. 19, 20 A. 107.
As applied to negligence signifies causal connection be-
tween injury and negligence, which transcends and is dis-
tinguished from negligent acts or omissions which play so
minor a part in producing injuries that law does not rec-
ognize them as legal causes. Connellan v. Coffey, 122 Conn.
136, 187 A. 901, 903.
CONTRIBUTION. In the civil law. A partition
by which the creditors of an insolvent debtor di•
vide among themselves the proceeds of his prop-
erty proportionably to the amount of their re-
spective credits. Code La. art. 3556, par. 9.
Division which is made among the heirs of the
succession of the debts with which the succes-
sion is charged, according to the proportion which
each is bound to bear. Civ.Code La. art. 1420.
In common law. The sharing of a loss or pay-
ment among several. The act of any one or sev-
eral of a number of co-debtors, co-sureties, etc., in
reimbursing one of their number who has paid
the whole debt or suffered the whole liability,
each to the extent of his proportionate share. Ca-
nosia Tp. v. Grand Lake Tp., 80 Minn. 357, 83 N.
W. 346; Ratte v. Ratte, 260 Mass. 165, 156 N.E.
870, 871. Right of one who has discharged a
common liability to recover of another also liable,
the aliquot portion which he ought to pay or bear.
St. Lewis v. Morrison, D.C.Ky., 50 F.Supp. 570,
572, 573. Parten v. First Nat. Bank & Trust Co.,
283 N.W. 408, 412, 204 Minn. 200, 120 A.L.R. 962;
Chapman v. Lamar-Rankin Drug Co., 64 Ga.App.
493, 13 S.E.2d 734, 737. Fidelity & Casualty Ins.
Co. of New York v. Sears, Roebuck & Co., 124
Conn. 227, 199 A. 93, 94.
In maritime law. Where the property of one
of several parties interested in a vessel and cargo
has been voluntarily sacrificed for the common
safety, (as by throwing goods overboard to light-
en the vessel,) such loss must be made good by the
contribution of the others, which is termed "gen-
eral average," 3 Kent, Comm. 232-244; 1 Story,
Eq. Jur. § 490.
CONTRIBUTION TO CAPITAL. A fund or prop-
erty contributed by shareowners as financial basis
for prosecution of corporation's business, and sig-
nifies resources whose dedication to users of the
corporation is made the foundation for issuance
of capital stock and which became irrevocably de-
voted to satisfaction of all obligations of corpo-
ration. Detroit Edison Co. v. Commissioner of
Internal Revenue, C.C.A.6, 131 F.2d 619, 623.
CONTRIBUTIONE FACIENDA. In old English
law. A writ that lay where tenants in common
were bound to do some act, and one of them was
put to the whole burthen, to compel the rest to
make contribution. Reg. Orig. 175; Fitzh. Nat.
Brev, 162.
CONTRIBUTORY, n. A person liable to contrib-
ute to the assets of a company which is being
wound up, as being a member or (in some cases)
a past member thereof. Mozley & Whitley.
CONTRIBUTORY, adj. Joining in the promotion
of a given purpose; lending assistance to the pro-
duction of a given result. Armstrong v. Green,
113 Okl. 254, 241 P. 789, 791.
As to contributory "Infringement" and "Negli-
gence," see those titles.
CONTROL, v. To exercise restraining or direct-
ing influence over; regulate; restrain; domin-
ate; curb; to hold from action; overpower; court,
teract; govern. Owen v. Trail, 302 Mo. 292, 258 S.
W. 699, 702; Hopkins v. Howard's Ex'x, 266 Ky.
685, 99 S.W.2d 810, 812.
To control a thing is to have the right to exercise a di-
recting or governing influence over it. Trust Co. of New
Jersey v. Greenwood Cemetery, 21 N.J.Misc. 169, 32 A.2d
519, 523.
CONTROL, n. Power or authority to manage,
direct, superintend, restrict, regulate, direct, gov-
ern, administer, or oversee. State v. First State
Bank of Jud, 52 N.D. 231, 202 N.W. 391, 402.
The "control" involved in determining whether "prin-
cipal and agent relationship" or "master and servant re-
lationship" is involved must be accompanied by power or
right to order or direct. Mid-Continent Petroleum Corpo-
ration v. Vicars, 221 Ind. 387, 47 N.E.2d 972, 975.
Driver must at 'all times have automobile under control,
means having it under such control that it can be stopped
before doing injury to any person in any situation that
is reasonably likely to arise under the circumstances.
Kindt v. Reading Co., 352 Pa. 419, 43 A.2d 145, 147.
CONTROL OF CARBON. Such a chemical action
upon the carbon in an alloy as will keep it large-
ly in a combined graphitic state. Pittsburgh Iron,
& Steel Foundries Co. v. Seaman-Sleeth Co., D.C.
Pa., 236 F. 756, 760.
CONTROLLER. A comptroller, which see.
CONTROLMENT. In old English law, The con-
trolling or checking of another officer's account;
the keeping of a counter-roll.
CONTROVER. In old English law. An inventor
or deviser of false news. 2 Inst. 227.
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CONTROVERSIES
CONTROVERSIES ARISING IN BANKRUPTCY
PROCEEDINGS. Within Bankruptcy Act § 24a,
11 U.S.C.A. § 47(a), investing Circuit Courts of
Appeals with appellate jurisdiction, include those
matters arising in the course of a bankruptcy pro-
ceeding, which are not mere steps in the ordinary
administration of the bankrupt estate, but present
distinct and separable issues, between the trustee
and adverse claimants concerning the right and
title to the bankrupt's estate. Handlan v. Ben-
nett, C.C.A.W.Va., 51 F.2d 21, 23.
CONTROVERSY. A litigated question; advers-
ary proceeding in a court of law; a civil action or
suit, either at law or in equity; a justiciable dis-
pute. Barber v. Kennedy, 18 Minn. 216 (Gil. 196);
State v. Guinotte, 156 Mo. 513, 57 S.W. 281, 50 L.
R.A. 787.
It differs from "case," which includes all suits, criminal
as well as civil; whereas "controversy" is a civil and not
a criminal proceeding. Chisholm v. Georgia, 2 Da11. 419,
431, 432, 1 L.Ed. 440.
CONTROVERT. To dispute; to deny; to oppose
or contest; to take issue on. Reese v. Adamson,
297 Pa. 13, 146 A. 262, 263.
CONTUBERNIUM. In Roman law. The marri-
age of slaves; a permitted cohabitation.
CONTUMACE CAPIENDO. In English law. Ex-
communication in all cases of contempt in the
spiritual courts is discontinued by 53 Geo. III, c.
127, § 2, and in lieu thereof, where a lawful cita-
tion or sentence has not been obeyed, the judge
shall have power, after a certain period, to pro-
nounce such person contumacious and in con-
tempt, and to signify the same to the court of
chancery, whereupon a writ de contumace capien-
do shall issue from that court, which shall have
the same force and effect as formerly belonged, in
case of contempt, to a writ de excommunicato cap-
iendo. (2 & 3 Wm. IV, c. 93; 3 & 4 Viet. c. 93.)
Wharton; 1 Holdsw. Hist. Engl. Law App. XVIII.
See Excommunication.
CONTUMACY. The refusal or intentional omis-
sion of a person who has been duly cited before
a court to appear and defend the charge laid
against him, or, if he is duly before the court, to
obey some lawful order or direction made in the
cause. In the former case it is called "presumed"
contumacy; in the latter, "actual." The term is
chiefly used in ecclesiastical law. See 3 Curt. Ecc.
1.
CONTUMAX. One accused of a crime who refus-
es to appear and answer to the charge. An out-
law.
CONTUMELY. Rudeness compounded of haugh-
tiness and contempt; scornful insolence; despite-
ful treatment; disdain, contemptuousness in act
or speech; disgrace. United States v. Strong, D.
C.Wash., 263 F. 789, 796.
CONTUSE. To bruise; to injure or disorganize
a part of without breaking the skin. Ansley v.
Travelers Ins. Co., 27 Tenn.App. 720, 173 S.W.2d
702, 704.
CONTUSION. In medical jurisprudence.  A
bruise; an injury to any external part of the body
by the impact of a fall or the blow of a blunt
instrument, without laceration of the flesh, and
either with or without a tearing of the skin, but
in the former case it is more properly called a
"contused wound." Gasperino v. Prudential Ins.
Co. of America, Mo.App., 107 S.W. 819, 827.
CONTUTOR. Lat. In the civil law. A co-tutor,
or co-guardian. Inst. 1, 24, 1.
CONUSANCE, In English law. Cognizance or
jurisdiction. Conusance of pleas. Termes de la
Ley.
CONjJSANCE, CLAIM OF. See Cognizance.
CONUSANT. Cognizant; acquainted with; hav-
ing actual knowledge; as, if a party knowing of
an agreement in which he has an interest makes
no objection to it, he is said to be conusant. Co.
Litt. 157.
CONUSEE. See Cognizee,
CONUSOR. See Cognizor,
CONVALESCENCE. Gradual recovery of health
or physical strength after illness. Romesburg v.
Federal Life Ins. Co., 147 Kan. 378, 76 P.2d 829,
831.
CONVENABLE. In old English law. Suitable;
agreeable; convenient; fitting. Litt. § 103.
CONVENE. In the civil law. To bring an action.
CONVENIENCE AND NECESSITY. If there is
a reasonable need apparent for use of the serv-
ice, and if a common carrier is not unduly 'inter-
fered with, nor the public highways unduly bur-
dened, a case of "convenience and necessity" ex-
ists with respect to an application for a license to
operate as a contract motor carrier. Short Way
Lines v. Black, 182 S.W.2d 17, 19, 298 Ky. 67.
CONVENIENT. Proper; just; suitable; fit;
adapted; proper; becoming appropriate. Finlay
v. Dickerson, 29 Ill. 20; Railway Co. v. Smith, 19
S.Ct. 565, 173 U.S. 684, 43 L.Ed. 858; Prina v.
Board of Sup'rs of Graham County, 16 Ariz. 252,
143 P. 567, 568.
CONVENIT. Lat. In civil and old English law.
It is agreed; it was agreed.
CONVENT. The fraternity of an abbey or prig
ory, as societas is the number of fellows in a col-
lege. A religious house, now regarded as a mere-
ly voluntary association, not importing civil death.
33 Law J. Ch. 308.
An association or community of recluses devoted to a
religious life under a superior; a body of monks, friars, or
nuns, constituting one local community; now usually
restricted to a convent of nuns; as, to go into a convent.
Sacred Heart Academy of Galveston v. Karsch, 122 S.W.2d
416, 417, 173 Tenn. 618.
CONVENTICLE. A private assembly or meeting
for the exercise of religion. The word was first
an appellation of reproach to the religious asserm
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CONVENTUS
blies of Wycliffe in the reigns of Edward III, and
Richard II., and was afterwards applied to a meet-
ing of dissenters from the established church. As
this word in strict propriety denotes an unlawful
assembly, it cannot be justly applied to the as-
sembling of persons in places of worship licensed
according to the requisitions of law. Wharton.
CONVENTIO. Canon Law. The act of summon-
ing or calling together the parties by summoning
the defendant.
The Civil Law. A compact, agreement, or con-
vention. An agreement between two or more per-
sons respecting a legal relation between them.
Mackeld. Rom. Law, §§ 385, 386.
The term is one of very wide scope, and applies to all
classes of subjects in which an engagement or business
relation may be founded by agreement. It is to be dis-
tinguished from the negotiations or preliminary transac-
tions on the object of the convention and fixing its extent,
which are not binding so long as the convention is not con-
cluded.
In contracts. An agreement; a covenant. Cow-
ell.
CONVENTIO IN UNUM. In the civil law. The
agreement between the two parties to a contract
upon the sense of the contract proposed. It is an
essential part of the contract, following the polli-
citation or proposal emanating from the one, and
followed by the consension or agreement of the
other.
CONVENTIO PRIVATORUM NON POTEST
PUBLICO JURI DEROGARE. The agreement of
private persons cannot derogate from public right,
i. e., cannot prevent the application of general
rules of law, or render valid any contravention of
law. Co. Litt. 166a; Wing. Max. p. 746, max. 201.
CONVENTIO VINCIT LEGEM. The express
agreement of parties overcomes [prevails against]
the law. Story, Ag. § 368.
CONVENTION. In English law. An extraor-
dinary assembly of the houses of lords and com-
mons, without the assent or summons of the sov-
ereign. It can only be justified ex necessitate rei,
as the parliament which restored Charles II., and
that which disposed of the crown and kingdom to
William and Mary. Wharton. Also the name of
an old writ that lay for the breach of a covenant.
In Roman law. An agreement between parties;
a pact. A convention was a mutual engagement
between two persons, possessing all the subjective
requisites of a contract, but which did not give
rise to an action, nor receive the sanction of the
law, as bearing an "obligation," until thQ objec-
tive requisite of a solemn ceremonial, (such as
stipulatio) was supplied. In other words, con-
vention was the informal agreement of the par-
ties, which formed the basis of a contract, and
which became a contract when the external for-
malities were superimposed. See Maine, Anc.
Law, 313.
"The division of conventions into contracts and pacts was
important in the Roman law. The former were such con-
ventions as already, by the older civil law, founded an obli-
gation and action; all the other conventions were termed
Black's Law Dictionary Revised 4th Ed.-26
'pacts.' These generally did not produce an actionable
obligation. Actionability was subsequently given to several
pacts, whereby they received the same power and efficacy
that contracts received." Mackeld.Rom.Law, § 395.
In legislation. An assembly of delegates or
representatives chosen by the people for special
and extraordinary legislative purposes, such as
the framing or revision of a state constitution.
Also an assembly of delegates chosen by a pol-
itical party, or by the party organization in a larg-
er or smaller territory, to nominate candidates for
an approaching election. In re Opinion of the
Justices, 132 Me. 491, 167 A. 176, 179.
In public and international law. A pact or
agreement between states or nations in the na-
ture of a treaty; usually applied (a) to agree-
ments or arrangements preliminary to a formal
treaty or to serve as its basis, or (b) internation-
al agreements for the regulation of matters of
common interest but not coming within the sphere
of politics or commercial intercourse, such as in-
ternational postage or the protection of submar-
ine cables. U. S. v. Hunter, C.C.Mo., 21 F. 615..
Constitutional convention. See Constitution..
Judicial convention. See Judicial,
CONVENTIONAL. Depending on, or arising
from, the mutual agreement of parties; as dis-
tinguished from legal, which means created by,
or arising from, the act of the law. De Vita Nr&
Pianisani, 217 N.Y.S. 438, 440, 127 Misc. 611.
As to conventional "Estates," "Interest," "Mort-
gage," "Subrogation," and "Trustees," see those ti-
tles.
CONVENTIONAL LIEN. A lien is conventional
where the lien, general or particular (Cro. Car.
271; 6 Term. 14; 2 Kent 637) is raised by the ex-
press agreement and stipulation of the parties,
in circumstances where the law alone would not
create a lien from the mere relation of the par-
ties or the details of their transaction.
CONVENTIONE. The name of a writ for the
breach of any covenant in writing, whether real
or personal. Reg.Orig. 115; Fitzh.Nat.Brev. 145.
CONVENTIONS. This name is sometimes given
to compacts or treaties with foreign countries as
to the apprehension and extradition of fugitive
offenders. See Extradition.
CONVENTUAL CHURCH. In ecclesiastical law.
That which consists of regular clerks, professing
some order or religion; or of dean and chapter;
or other societies of spiritual men.
CONVENTUALS. Religious men united in a con-
vent or religious house. Cowell.
CONVENTUS. Lat. A coming together; a con•
vention or assembly. Conventus magnatum vel
procerum (the assembly of chief men or peers)
was one of the names of the English parliament.
1 Bl. Comm. 148.
In the civil law. The term meant a gather.
ing together of people; a crowd assembled for
any purpose; also a convention, pact, or bargain.
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CONVENTUS
CONVENTUS JURIDICUS. In the Roman law.
A court of sessions held in the Roman provinces,
by the president of the province, assisted by a cer-
tain number of counsellors and assessors, at fixed
periods, to hear and determine suits, and to pro-
vide for the civil administration of the province.
Schm. Civil Law, Introd. 17.
CONVERSANT. One who is in the habit of be-
ing in a particular place is said to be conversant
there. Barnes, 162. Acquainted; familiar.
CONVERSANTES. In old English law. Conver-
sant or dwelling; commorant.
CONVERSATION. Manner of living; habits of
life; conduct; as in the phrase "chaste life and
conversation." Bradshaw v. People, 153 Ill. 156,
38 N.E. 652. Criminal conversation means se-
duction of another man's wife, considered as an
actionable injury to the husband. Prettyman v.
Williamson, 1 Pennewill (Del.) 224, 39 A. 731;
Crocker v. Crocker, C.C.Mass., 98 F. 702.
CONVERSE. The transposition of the subject
and predicate in a proposition, as: "Everything
is good in its place." Converse, "Nothing is good
which is not in its place." Wharton.
CONVERSION. Equity. The exchange of prop-
erty from real to personal or from personal to
real, which takes place under some circumstances
in the consideration of the law, such as, to give
effect to directions in a will or settlement, or to
stipulations in a contract, although no such
change has actually taken place, 1 Bro.C.C. 497;
1 Lead.Cas.Eq. 619; 1 Lead. Cas.Eq. 872; Law-
rence v. Elliott, 3 Redf.Sur. (N.Y.) 235; Dodge v.
Williams, 46 Wis. 70, 1 N.W. 92, 50 N.W. 1108;
Mattison v. Stone, 99 S.C. 151, 82 S.E. 1046, 1047;
and by which exchange the property so dealt
with becomes invested with the properties and
attributes of that into which it is supposed to
have been converted; Seymour v. Freer, 8 Wall.
214, 19 L.Ed. 306; Haward v. Peavey, 128 Ill. 430,
21 N.E. 503, 15 Am.St.Rep. 120.
Although it is sometimes necessary for certain
purposes of devolution and transfer to regard the
property in its changed condition as though the
change has not absolutely taken place; Davidson
v. Bright, 267 Pa. 580, 110 A. 301, 302.
A qualified conversion is one directed for some particu-
lar purpose; Harker v. Reilly, 4 Del.Ch. 72.
Law
An unauthorized assumption and exercise of
the right of ownership over goods or personal
chattels belonging to another, to the alteration of
their condition or the exclusion of the owner's
rights. Stickney v. Munroe, 44 Me. 197; Baldwin
v. Cole, 6 Mod. 212; In re Di Crocco's Estate, 12 N.
Y.S.2d 276, 278, 170 Misc. 826; Powell v. A. K.
Brown Motor Co., 20 S.E.2d 636, 637, 200 S.C. 75.
Any unauthorized act which deprives an owner
of his property permanently or for an indefinite
time. Forbush v. San Diego Fruit & 'Produce
Co., 46 Idaho, 231, 266 P. 659, 663.
Also one who aids and abets another in keeping property
from its rightful owner is guilty of "conversion". Edwards
v. Max Thieme Chevrolet Co., La.App., 191 So. 569, 571,
572.
Constructive conversion. An implied or virtual
conversion, which takes place where a person
does such acts in reference to the goods of an-
other as amount in law to the appropriation of the
property to himself. Scruggs v. Scruggs, C.C.
Mo., 105 F. 28; Laverty v. Snethen, 68 N.Y. 524,
23 Am.Rep. 184; Wade v. Ray, 67 Okl. 39, 168 P.
447, 449, L.R.A.1918B, 796.
Direct conversion. The act of actually ap-
propriating the property of another to his own
beneficial use and enjoyment, or to that of a third
person, or destroying it, or altering its nature.
Ross v. Lewis, 23 N.M. 524, 169 P. 468, 469; or
wrongfully assuming title in himself; Cass v.
Ocean Park Bath Co., 45 Cal.App. 656, 188 P. 616,
617; there must be a positive wrong or act of mal-
feasance; American Surety Co. of New York v.
Hill County, Tex.Civ.App., 254 S.W. 241, 245.
CONVEY. To pass or transmit the title to prop-
erty from one to another; to transfer property
or the title to property by deed or instrument un-
der seal. Used popularly in sense of "assign,"
"sale," or "transfer." Crookshanks v. Ransbarg-
er, 80 W.Va. 21, 92 S.E. 78, 82; McQuiddy Print-
ing Co. v. Hirsig, 23 Tenn.App. 434, 134 S.W.2d
197, 205.
Convey relates properly to the disposition of real prop-
erty, not to personal. Dickerman v. Abrahams, 21 Barb.,
N.Y., 551, 561. To convey real estate is, by an appropriate
instrument, to transfer the legal title to it from the present
owner to another. Abendroth v. Greenwich, 29 Conn. 356.
CONVEYANCE. In pleading. Introduction or
inducement.
In real property law. In the strict legal sense,
a transfer of legal title to land. In the popular
sense, and as generally used by lawyers, it de-
notes any transfer of title, legal or equitable.
Chupco v. Chapman, 76 Okl. 201, 170 P. 259, 266.
The transfer of the title of land from one person
or class of persons to another. Klein v. McNam-
ara, 54 Miss. 105; Alexander v. State, 28 Tex.
App. 186, 12 S.W. 595; In re Loes' Will, 55 N.Y.S.
2d 723, 726. An instrument in writing under seal,
(anciently termed an "assurance,") by which some
estate or interest in lands is transferred from one
person to another; such as a deed, mortgage, etc.
2 Bl. Comm. 293, 295, 309.
Conveyance includes every instrument in writing by
which any estate or interest in real estate is created,
aliened, mortgaged, or assigned, or by which the title to
any real estate may be affected in law or equity, except
last wills and testaments, leases for a term not exceeding
three years, and executory contracts for the sale or pur-
chase of lands. Stearns Lighting & Power Co. v. Central
Trust Co., C.C.A.Mich., 223 F. 962, 966; Shraiberg v. Han-
son, 138 Minn. 80, 163 N.W. 1032, 1033.
General
Absolute or conditional conveyance. An abso-
lute conveyance is one by which the right or prop-
erty in a thing is transferred, free of any condi-
tion or qualification, by which it might be defeated
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CONVICTION
or changed; as an ordinary deed of lands, in con-
tradistinction to a mortgage, which is a condi-
tional conveyance. Burrill; Falconer v. Buffalo,
etc., R. Co., 69 N.Y. 491; Brown v. United States,
C.C.A.Pa., 95 Fed.2d 487, 489.
Fraudulent conveyance. See Fraudulent.
Mesne conveyance. An intermediate convey-
ance; one occupying an intermediate position in
a chain of title between the first grantee and the
present holder.
Primary conveyances. Those by means where-
of the benefit or estate is created or first arises;
as distinguished from those whereby it may be en-
larged, restrained, transferred, or extinguished.
The term includes feoffment, gift, grant, lease,
exchange, and partition, and is opposed to deriva-
tive conveyances, such as release, surrender, con-
firmation, etc. 2 Bl. Comm. 309.
Secondary conveyances. The name given to
that class of conveyances which presuppose some
other conveyance precedent, and only serve to en-
large, confirm, alter, restrain, restore, or transfer
the interest granted by such original conveyance.
2 Bl. Comm. 324. Otherwise termed "derivative
conveyances" (q. v.).
Voluntary conveyance. A conveyance without
valuable consideration; such as a deed or settle-
ment in favor of a wife or children. Gentry v.
Field, 143 Mo. 399, 45 S.W. 286; Shannon v. Duf-
field, 218 Ky. 770, 292 S.W. 322, 323; English v.
Brown, D.C.N.J., 219 F. 248, 256.
CONVEYANCER. One whose business it is to
draw deeds, bonds, mortgages, wills, writs, or oth-
er legal papers, or to examine titles to real estate.
14 St. at Large, 118.
He who draws conveyances; especially a barrister who
confines himself to drawing conveyances, and other cham-
ber practice. Mozley & Whitley.
CONVEYANCING. A term including both the
science and art of transferring titles to real es-
tate from one man to another.
Conveyancing is that part of the lawyer's business which
relates to the alienation and transmission of property and
other rights from one person to another, and to the fram-
ing of legal documents intended to create, define, transfer,
or extinguish rights. It therefore includes the investiga-
tion of the title to land, and the preparation of agreements,
wills, articles of association, private statutes operating as
conveyances, and many other instruments in addition to
conveyances properly so called. Sweet; Livermore v. Bag-
ley, 3 Mass. 505.
CONVEYANCING COUNSEL TO THE COURT
OF CHANCERY. Certain counsel, not fewer than
six in number, appointed by the lord chancellor,
for the purpose of assisting the court of chan-
cery, or any judge thereof, with their opinion in
matters of title and conveyancing. Mozley &
Whitley.
CONVICIA SI IRASCARIS TUA DIVULGAS;
SPRETA EXOLESCUNT. 3 Inst. 198. If you be
moved to anger by insults, -you publish them;
if despised, they are forgotten.
CONVICIUM. In the civil law. The name of a
species of slander or injury uttered in public, and
which charged some one with some act contra
bonos mores.
CONVICT, v. To condemn after judicial investi-
gation; to find a man guilty of a criminal charge.
The word was formerly used also in the sense of
finding against the defendant in a civil case.
Formerly a man was said to be convict when he had been
found guilty of treason or felony, but before judgment had
been passed on him, after which he was said to be attaint,
(q. v.). Co.Litt. 390b.
CONVICT, n. One who has been finally condemn-
ed by a court. One who has been adjudged guilty
of a crime or misdemeanor. Usually spoken of
condemned felons or the prisoners in penitentiar-
ies. Molineux v. Collins, 177 N.Y. 395, 69 N.E. 727,
65 L.R.A. 104.
CONVICTED. Means that a judgment of final
condemnation has been pronounced against the
accused. Gallagher v. State, 10 Tex.App. 469;
Neibling v. Terry, 177 S.W.2d 502, 504, 352 Mo.
396, 152 A.L.R. 249.
CONVICTION. In a general sense, the result of
a criminal trial which ends in a judgment or sen-
tence that the prisoner is , guilty as charged.
The act of convicting a person, or state of being con-
victed, of a criminal offense. Hershey v. People, 91 Colo.
113, 12 P.2d 345, 347. Finding a person guilty by verdict
of a jury. 1 Bish.Crim.Law, § 223; Emmertson v. State
Tax Commission of Utah, 93 Utah 219, 72 P.2d 467, 470,
113 A.L.R. 1174.
A record of the summary proceedings upon any
penal statute before one or more justices of the
peace or other persons duly authorized, in a case
where the offender has been convicted and sen-
tenced. , Holthouse. In respect of pardoning pow-
er, verdict of guilty. State v. Garrett, 135 Tenn.
617, 188 S.W. 58, L.R.A.1917B, 567. Contra, Ex
parte White, 28 Okl.Cr, 180, 230 P. 522.
In ordinary phrase, the meaning of the word "convic-
tion" is the finding by the jury of a verdict that the
accused is guilty. But, in legal parlance, it often denotes
the final judgment of the court. Blaufus v. People, 69 N.Y.
109, 25 Am.Rep. 148; Marino v. Hibbard, 243 Mass. 90, 137
N.E. 369; Commonwealth v. Minnich, 250 Pa. 363, 95 A.
565, 567, L.R.A.1916B, 950.
The ordinary legal meaning of "conviction," when used
to designate a particular stage of a criminal prosecution
triable by a jury, is the confession of the accused in open
court or the verdict returned against him by the jury,
which ascertains and publishes the fact of his guilt; while
"judgment" or "sentence" is the appropriate word to
denote the action of the court before which the trial is had,
declaring the consequences to the convict of the fact thus
ascertained. A pardon granted after verdict of guilty, but
before sentence, and pending a hearing upon exceptions
taken by the accused during the trial, is granted after con-
viction, within the meaning of a constitutional restriction
upon granting pardon before conviction. When, indeed,
the word "conviction" is used to describe the effect of the
guilt of the accused as judicially proved in one case, when
pleaded or given in evidence in another, it is sometimes
used in a more comprehensive sense, including the judg-
ment of the court upon the verdict or confession of guilt;
as, for instance, in speaking of the plea of autrefois con-
vict, or of the effect of guilt, judicially ascertained, as a
disqualification of the convict. Com. v. Lockwood, 109
Mass. 323, 12 Am.Rep. 699; In re Anderson, 34 Cal.App.2d
48, 92 P.2d 1020, 1022. Attorney General ex rel. O'Hara v.
Montgomery, 275 Mich. 504, 267 N.W. 550, 554.
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CONVICTION
Former Conviction. A previous trial and con-
viction of the same offense as that now charged;
pleadable in bar of the prosecution. State v.
Ellsworth, 131 N.C: 773, 42 S.E. 699, 92 Am.St.Rep.
790; Williams v. State, 13 Te g .App. 285, 46 Am.
Rep. 237.
Summary Conviction. The conviction of a per-
son, (usually for a minor misdemeanor,) as the
result of his trial before a magistrate or court,-
without the intervention of a jury, which is au-
thorized by statute in England and in many of
the states. In these proceedings there is no in-
tervention of a jury, but the party accused is ac-
quitted or condemned by the suffrage of such
person only as the statute has appointed to be
his judge. A conviction reached on such a magis-
trate's trial is called a "summary conviction."
Brown; Blair v. Com., 25 Grat. (Va.) 853.
CONVINCING PROOF. Such as is sufficient to
establish the proposition in question, beyond hesi-
tation, ambiguity, or reasonable doubt, in an un-
prejudiced mind. Evans v. Rugee, 57 Wis. 623,
16 N.W. 49; French v. Day, 89 Me. 441, 36 A. 909.
See Clear.
CONVIVIUM. A tenure by which a tenant was
bound to provide meat and drink for his lord at
least once in the year. Cowell.
CONVOCATION. In ecclesiastical law. The gen-
eral assembly of the clergy to consult upon ec-
clesiastical matters.
CONVOY. A naval force, under the command of
an officer appointed by government, for the pro-
tection of merchant-ships and others, during the
whole voyage, or such part of it as is known to re-
quire such protection. Marsh. Ins. b. 1, c. 9, § 5;
Park, Ins. 388; Peake, Add. Cas. 143n; 2 H. Bl.
551.
CO-OBLIGOR. A joint obligor; one bound joint-
ly with another or others in a bond or obligation.
COOL BLOOD. In the law of homicide. Calmness
or tranquillity; the undisturbed possession of
one's faculties and reason; the absence of vio-
lent passion, fury, or uncontrollable excitement.
COOLING TIME. Time to recover "cool blood"
after severe excitement or provocation; time for
the mind to become so calm and sedate as that it
is supposed to contemplate, comprehend, and cool-
ly act with reference to the consequences likely
to ensue. May v. People, 8 Colo. 210, 6 P. 816;
Keiser v. Smith, 71 Ala. 481, 46 Am.Rep. 342.
CO-OPERATE. To act jointly or concurrently
toward a common end. Darnell v. Equity Life
Ins. Co.'s Receivers, 179 Ky. 465, 200 S.W. 967,
970.
CO-OPERATION. In economics. The combined
action of numbers. It is of two distinct kinds:
(1) Such co-operation as takes place when sever-
al persons help each other in the same employ-
ment; (2) such co-operation as takes place when
several persons help each other in different em-
ployments. These may be termed "simple co-
operation" and "complex co-operation." Mill, Pol.
Ec. 142.
In patent law. Unity of action to a common
end or a common result, not merely joint or sim-
ultaneous action. Boynton Co. v. Morris Chute
Co., C.C.N.J., 82 F. 444; Fastener Co. v. Webb, C.
C.Ohio, 89 F. 987; Holmes Burglar Alarm Tel. Co.
v. Domestic, etc., Tel. Co., C.C.N.J., 42 F. 227.
CO-OPERATIVE ASSOCIATION. A union of in-
dividuals commonly laborers, farmers, or small
capitalists, formed for the prosecution in common
of some productive enterprise, the profits being
shared in accordance with the capital or labor
contributed by each. Mooney v. Farmers' Mer-
cantile & Elevator Co. of Madison, 138 Minn. 199,
164 N.W. 804, 805.
CO-OPERATIVE NEGLIGENCE. Contributory
negligence. Otte v. Miller, 24 S.E.2d 90, 93, 125
W.Va. 317.
COOPERTIO. In old English law. The head or
branches of a tree cut down; though coopertio
arborum is rather the bark of timber trees felled,
and the chumps and broken wood. Cowell.
COOPERTUM. In forest law. A covert; a
thicket (dumetum) or shelter for wild beasts in
a forest. Spelman.
COOPERTURA. In forest law. A thicket, or
covert of wood.
COOPERTUS. Covert; covered.
CO-OPTATION. A concurring choice; the elec-
tion, by the members of a close corporation, of
a person to fill a vacancy.
CO-ORDINATE. Equal, of the same order, rank,
degree or importance; not subordinate. Empire
Ins. Co. of Texas v. Cooper, Tex.Civ.App., 138 S.
W.2d 159, 164. Adjusted to, in harmony with.
ZEolian-Skinner Organ Co. v. Shepard Broadcast-
ing Service, C.C.A.Mass., 81 F.2d 392, 395. As to
courts of "co-ordinate jurisdiction," see Jurisdic-
tion.
Co-ordinate and Subordinate are terms often applied as a
test to ascertain the doubtful meaning of clauses in an act
of parliament. If there be two, one of which is gram-
matically governed by the other, it is said to be "subor-
dinate" to it; but, if both are equally governed by some
third clause, the two are called "co-ordinate." Wharton.
CO-ORDINATE JURISDICTION. That which is
possessed by courts of equal rank, degree, or au-
thority, equally competent to deal with the matter
in question, whether belonging to the same or dif-
ferent systems; concurrent jurisdiction.
COPAUCENARY. A species of estate, or tenan-
cy, which exists where lands of inheritance de-
scend from the ancestor to two or more persons.
It arises in England either by common law or
particular custom. By common law, as where a
person, seised in fee-simple or fee-tail, dies, and
his next heirs are two or more females, his daugh-
ters, sisters, aunts, cousins, or their representa-
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COPYHOLD
tives; in this case they all inherit, and these co-
heirs, are then called "coparceners," or, for brev-
ity, "parceners" only. Litt. §§ 241, 242; 2 Bl.
Comm. 187. By particular custom, as where lands
descend, as in gavelkind, to all the males in equal
degree, as sons, brothers, uncles, etc. Litt. §
265; 1 Steph. Comm. 319. An estate which several
persons hold as one heir, whether male or female.
This estate has the three unities of time, title,
and possession; but the interests of the coparcen-
ers may be unequal. 1 Washb. Real Prop. 414;
2 Bl. Comm. 188; 4 Kent 366; Flynn v. Herye, 4
Mo.App. 360.
While joint tenancies refer to persons, the idea of copar-
cenary refers to the estate. The title to it is always by
descent. The respective shares may be unequal; as, for
instance, one daughter and two granddaughters, children
of a deceased daughter, may take by the same act of de-
scent. As to strangers, the tenants' seisin is a joint one,
but, as between themselves, each is seised of his or her
own share, on whose death it goes to the heirs, and not
by survivorship. The right of possession of coparceners Ts
in common, and the possession of one is, in general, the
possession of the others. 1 Washb.Real Prop. *414.
COPARCENERS. Persons to whom an estate of
inheritance descends jointly, and by whom it is
held as an entire estate. 2 Bl. Comm. 187.
COPARTICEPS, In old English law. A copar-
cener.
COPARTNER. One who is a partner with one
or more other persons; a member of a partnership.
COPARTNERSHIP. A partnership.
COPARTNERY. In Scotch law. The contract
of copartnership. A contract by which the several
partners agree concerning the communication of
loss or gain, arising from the subject of the con-
tract. Bell.
COPE. A custom or tribute due to the crown
or lord of the soil, out of the lead mines in Derby-
shire; also a hill, or the roof and covering of a
house; a church vestment.
COPEMAN, or COPESMAN. A chapman, (q. v.).
COPESMATE. A merchant; a partner in mer-
chandise.
COPIA. Lat. In civil and old English law. Op-
portunity or means of access.
In old English law. A copy. Copia libelli,
the copy of a libel. Reg. Orig. 58.
COPIA LIBELLI DELIBERANDA. The name of
a writ that lay where a man could not get a copy
of a libel at the hands of a spiritual judge, to have
the same delivered to him. Reg. Orig. 51.
COPIA VERA. In Scotch practice. A true copy.
Words written at the top of copies of instruments.
COPPA. In English law. A crop or cock of
grass, hay, or corn, divided into titheable por-
tions, that it may be more fairly and justly tithed.
COPPER AND SCALES. See Mancipatio.
COPPER MATTE. A product of smelting copper
ore in a furnace consisting almost entirely of a
mixture of iron sulphide and copper sulphide. It
requires further treatment to break up and re-
move iron sulphide, and then convert remaining
copper sulphide which is called white metal to
metallic copper. United Verde Copper Co. v.
Peirce-Smith Converter Co., C.C.A.Del., 7 F.2d
13. Also known as "regulus of copper." U. S. v.
Consolidated Kansas City Smelting & Refining Co,.
8 Ct.Cust.App. 226, 227.
COPPICE, or COPSE. A small wood consisting
of underwood, which may be cut at twelve or fif-
teen years' growth for fuel.
COPROLALIA. In medical jurisprudence. A
disposition or habit of using obscene language,
developing unexpectedly in the particular indivi-
dual or contrary to his previous history and habits,
recognized as a sign of insanity or of aphasia.
COPULA. The corporal consummation of mar-
riage. Copula, (in logic,) the link between sub-
ject and predicate contained in the verb.
COPULATIO VERBORUM INDICAT ACCEPTA-
TIONEM IN EODEM SENSU. Coupling of words
together shows that they are to be understood
in the same sense. 4 Bacon's. Works, p. 26;
Broom, Max. 588.
COPULATIVE TERM. One which is placed be-
tween two or more others to join them together.
COPY. The transcript or double of an original
writing; as the copy of a patent, charter, deed,
etc. Nations v. Lowenstern, 27 N.M. 613, 204 P.
60, 62; State Text-Book Commission v. Weathers,
184 Ky. 748, 213 S.W. 207, 210; In re Janes' Es-
tate, 18 Ca1.2d 512, 116 P.2d 438, 441.
Carbon copies. Carbon copies made at the
same time and with the same device as the orig-
inal are not "copies" but duplicate originals.
Martin & Lanier Paint Co. v. Daniels, 27 Ga.App.
302, 108 S.E. 246, 247; Liberty Nat. Bank and
Trust Co. v. Louisville Trust Co., 295 Ky. 825, 175
S.W.2d 524, 528.
Exemplifications are copies verified by the great
seal or by the seal of a court. West Jersey Trac-
tion Co. v. Board of Public Works, 57 N.J.Law,
313, 30 A. 581.
Examined copies are those which have been
compared with the original or with an official rec-
ord thereof.
Office copies are those made by officers intrust-
ed with the originals and authorized for that pur-
pose. Id., Stamper v. Gay, 3 Wyo. 322, 23 P. 69.
See, also, Office.
In the law of copyrights. A reproduction or dup-
lication of a thing, or that which comes so near
to the original as to give to every person seeing
it the idea created by the original. McConnor v.
Kaufman, D.C.N.Y., 49 F.Supp. 738, 744.
COPYHOLD. A species of estate at will, or cus-
tomary estate in England, the only visible title
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COPYHOLD
to which consists of the copies of the court rolls,
which are made out by the steward of the manor,
on a tenant's being admitted to any parcel of
land, or tenement belonging to the manor. It is
an estate at the will of the lord, yet such a will
as is agreeable to the custom of the manor, which
customs are preserved and evidenced by the rolls
of the several courts baron, in which they are
entered. 2 Bl.Comm. 95. In a larger sense, copy-
hold is said to ifnport every customary tenure,
(that is, every tenure pending on the particular
custom of a manor,) as opposed to free socage,
or freehold, which may now (since the abolition
of knight-service) be considered as the general or
common-law tenure of the country. 1 Steph.
Comm. 210.
Copyhold commissioners. Commissioners ap-
pointed to carry into effect various acts of par-
liament, having for their principal objects the
compulsory commutation of manorial burdens and
restrictions, (fines, heriots, rights to timber and
minerals, etc.,) and the compulsory enfranchise.
ment of copyhold lands. 1 Steph. Comm. 643;
Elton, Copyh.
Copyholder. A tenant by copyhold tenure, (by
copy of court-roll.) 2 Bl. Comm. 95.
Privileged copyholds. Those copyhold estates
which are said to be held according to the cus-
tom of the manor, and not at the will of the lord,
as common copyholds are. They include custom-
ary freeholds and ancient demesnes. i Crabb,
Real Prop. p. 709, § 919.
COPYRIGHT. The right of literary property as
recognized and sanctioned by positive law. An
intangible, incorporeal right granted by statute
to the author or originator of certain literary or
artistic productions, whereby he is invested, for
a limited period, with the sole and exclusive priv-
ilege of multiplying copies of the same and pub-
lishing and selling them. In re Rider, 16 R.I. 271,
15 A. 72; Mott Iron Works v. Clow, C.C.A.Ill., 82
F. 316, 27 C.C.A. 250; Palmer v. De Witt, 47 N.Y.
536, 7 Am.Rep. 480; Stuff v. La Budde Feed &
Grain Co., D.C.Wis., 42 F.Supp. 493, 497; Schill
v. Remington Putnam Book Co., 179 Md. 83, 17
A.2d 175.
International copyright is the right of a sub-
ject of one country to protection against the re-
publication in another country of a work which
he originally published in his own country.
Sweet.
CORAAGIUM, or CORAAGE. Measures of corn.
An unusual and extraordinary tribute, arising
only on special occasions. They are thus distin-
guished from services. Mentioned in connection
with hidage and carvage. Cowell.
CORAM. Lat. Before; in presence of. Applied
to persons only. Townsh. Pl. 22.
CORAM DOMINO REGE. Before our lord the
king. Coram domino rege ubicumque tune fuerit
Anglice, before our lord the king wherever he shall
then be in England.
CORAM IPSO REGE. Before the king himself.
The old name of the court of king's bench, which
was originally held before the king in person. 3
Bl.Comm. 41.
CORAM NOBIS. Before us ourselves, (the king,
i. e., in the king's or queen's bench.) Applied to
writs of error directed to another branch of the
same court, e. g., from the full bench to the court
at nisi prius. 1 Archb. Pr. K. B. 234. See Writ of
Error.
CORAM NON JUDICE. In presence of a person
not a judge. When a suit is brought and deter-
mined in a court which has no jurisdiction in the
matter, then it is said to be coram non judice, and
the judgment is void. Manufacturing Co. v. Holt,
51 W.Va. 352, 41 S.E. 351.
CORAM PARIBUS. Before the peers or freehold-
ers. The attestation of deeds, like all other
solemn transactions, was originally done only
coram paribus. 2 Bl.Comm. 307. Coram paribus
de vicineto, before the peers or freeholders of the
neighborhood. Id. 315.
CORAM SECTATORIBUS. Before the suitors.
Cro. Jac. 582.
CORAM VOBIS. Before you. A writ of error
directed by a court of review to the court which
tried the cause, to correct an error in fact. 3 Md.
325; 3 Steph.Comm. 642. See Writ of Error.
CORD. A measure of wood containing 128 cubic
feet, otherwise expressed as a pile of wood 8 feet
long, 4 feet high, and 4 feet wide. Sacks v. State,
83 Tex.Cr.R. 560, 204 S.W. 430.
CO-RESPONDENT. A person summoned to an-
swer a bill, petition, or libel, together with an-
other respondent. Now chiefly used to designate
the person charged with adultery with the re-
spondent in a suit for divorce for that cause, and
joined as a defendant with such party. Lowe v.
Bennett, 27 Misc. 356, 58 N.Y.S. 88. Mortensen v.
Los Angeles Examiner, 112 Cal.App. 194, 296 P.
927, 930.
CORIUM FORISFACERE. To forfeit one's skin,
applied to a person condemned to be whipped;
anciently the punishment of a servant. Corium
perdere, the same. Corium redimere, to com-
pound for a whipping. Wharton.
CORN. In English law, a general term for any
sort of grain; but in America it is properly ap-
plied only to maize. Sullins v. State, 53 Ala. 476;
Kerrick v. Van Dusen, 32 Minn. 317, 20 N.W. 228;
Corn. v. Pine, 3 Pa.Law J. 412.
In the memorandum clause in policies of insurance it
includes pease and beans, but not rice. Park, Ins. 112;
Scott v. Bourdillion, 2 Bos. & P., N. It., 213.
CORN LAWS. A species of protective tariff form-
erly in existence in England, imposing import-
duties on various kinds of grain. The corn laws
were abolished in 1846.
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CORONER
CORN MEAL. An unmixed meal made from en-
tire grains of corn. Miller Grain & Commission
Co. v. International Sugar Feed No. 2 Co., 197 Ala.
100, 72 So. 368.
CORN RENT. A rent in wheat or malt paid on
college leases by direction of St. 18 Eliz. c. 6. 2
Bl.Comm. 609.
CORN WHISKY. An intoxicating whisky or liq-
uor made from corn or containing a corn product,
otherwise known as "moonshine," "white mule,"
"hootch," "corn liquor," "moonshine corn whisky."
State v. Bilyeu, Mo.Sup., 295 S.W. 104, 105; State
v. Pinto, 312 Mo. 99, 279 S.W. 144, 148; Mullins v.
Commonwealth, 115 Va. 945, 79 S.E. 324, 327.
CORNAGE. A species of tenure in England, by
which the tenant was bound to blow a horn for
the sake of alarming the country on the approach
of an enemy. It was a species of grand serjeanty.
Bac. Abr. "Tenure," N.
CORNER. A combination among the dealers in
a specific commodity, or outside capitalists, for
the purpose of buying up the greater portion of
that commodity which is upon the market or may
be brought to market, and holding the same back
from sale, until the demand shall so far outrun
the limited supply as to advance the price ab-
normally. Kirkpatrick v. Bonsall, 72 Pa. 158;
Wright v. Cudahy, 168 Ill. 86, 48 N.E. 39; United
States v. Patten, C.C.N.Y., 187 F. 664, 668.
A "corner" is a condition arising when a much greater
quantity of any given commodity is sold for future deliv-
ery within a given period than can be purchased in the
market. The buyers, who are called in the slang of the
exchanges, the "longs," then insist on delivery, and thus
succeed in running up the prices to a fictitious point, at
which the deals are "rung out" between the dealers oy the
payment of differences, or, where the buyers insist, by
actual delivery. Kent v. Miltenberger, 13 Mo.App. 503, 506.
Surveying. An angle made by two boundary lines;
the common end of two boundary lines, which run
at an angle with each other.
Lost corner. One whose location as established
.by the government surveyors cannot be found.
The mere fact that evidence of the physical loca-
tion cannot now be seen, or that no one who saw
the marked corner is produced, does not neces-
sarily make the corner a lost one. Goroski v.
Tawney, 121 Minn. 189, 141 N.W. 102, 103; Coop-
er v. Quade, 191 Iowa, 461, 182 N.W. 798, 799;
Fehrman v. Bissell Lumber Co., 188 Wis. 82, 204
N.W. 582.
Obliterated corner.  One where no visible evidence
remains of the work of the original surveyor in establish-
ing it. Fellows v. Willett, 98 Okl. 248, 224 P. 298, 300;
Fehrman v. Bissell Lumber Co., 188 Wis. 82, 204 N.W. 582.
CORNET. A commissioned officer of cavalry,
abolished in England in 1871, and not existing in
the United States army.
CORODIO HABENDO. The name of a writ to
exact a corody of an abbey or religious house.
CORODIUM. In old English law. A corody.
CORODY. In old English law. A sum of money
or allowance of meat, drink, and clothing due
to the crown from the abbey or other religious
house, whereof it was founder, towards the sus-
tentation of such one of its servants as is thought
fit to receive it. It differs from a pension, in that
it was allowed towards the maintenance of any
of the king's servants in an abbey; a pension be-
ing given to one of the king's chaplains, for his
better maintenance, till he may be, provided with
a benefice. Fitzh. Nat. Brev. 250. See 1 Bl.Comm.
283.
COROLLARY. In logic. A collateral or secon-
dary consequence, deduction, or inference.
CORONA. The crown. Placita coronce; pleas of
the crown; criminal actions or proceedings, in
which the crown was the prosecutor.
CORONA MALA. In old English law. The clergy
who abuse their character were so called. Blount.
CORONARE. In old records. To give the ton-
sure, which was done on the crown, or in the form
of a crown; to make a man a priest. Cowell.
CORONARE FILIUM. To make one's son a
priest. Homo coronatus was one who had re-
ceived the first tonsure, as preparatory to superior
orders, and the tonsure was in form of a corona,
or crown of thorns. Cowell.
CORONATION. It "is but a royal ornament and
solemnization of the royal descent, but no part
of the title." By the laws of England there can
be no interregnum; 7 Co.Rep. 10b.
CORONATION OATH. The oath administered to
a sovereign at the ceremony of crowning or in-
vesting him with the insignia of royalty, in ac-
knowledgment of his right to govern the king-
dom, in which he swears to observe the laws, cus-
toms, and privileges of the kingdom, and to act
and do all things conformably thereto. Wharton.
CORONATOR. A coroner, (q. v.) Spelman.
CORONATORE ELIGENDO. The name of a writ
issued to the sheriff, commanding him to proceed
to the election of a coroner.
CORONATORE EXONERANDO. In English law.
The name of a writ for the removal of a coroner,
for a cause which is to be therein assigned, as
that he is engaged in other business, or incapaci-
tated by years or sickness, or has not a sufficient
estate in the county, or lives in an inconvenient
part of it.
CORONER. The name of an ancient officer of
the common law, whose office and functions are
continued in modern English and American ad-
ministration. The coroner is an officer belonging
to each county, and is charged with duties both
judicial and ministerial, but chiefly the former.
It is his special province and duty to make inquiry
into the causes and circumstances of any death
happening within his territory which occurs
through violence or suddenly and with marks of
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CORONER'S
suspicion. This examination (called the "coroner's
inquest") is held with a jury of proper persons
upon view of the dead body. See Bract. fol. 121;
1 Bl.Comm. 346-348; 3 Steph.Comm. 33. In Eng-
land, another branch of his judicial office is to
inquire concerning shipwrecks, and certify wheth-
er wreck or not, and who is in possession of
the goods; and also to inquire concerning treas-
ure trove, who were the finders, and where it is,
and whether any one be suspected of having found
and concealed a treasure. 1 Bl.Comm. 349. It be-
longs to the ministerial office of the coroner to
serve writs and other process, and generally to
discharge the duties of the sheriff, in case of the
incapacity of that officer or a vacancy in his office.
On the office and functions of coroners, see, fur-
ther, Cox v. Royal Tribe, 42 Or. 365, 71 Pac. 73,
60 L.R.A. 620; Lancaster County v. Holyoke, 37
Neb. 328, 55 N.W. 950, 21 L.R.A. 394.
CORONER'S COURT. In England. A tribunal
of record, where a coroner holds his inquiries.
Cox v. Royal Tribe, 42 Or. 365, 71 P. 73, 60 L.R.A.
620.
CORONER'S INQUEST. An inquisition or exam-
ination into the causes and circumstances of any
death happening by violence or under suspicious
conditions within his territory, held by the coron-
er with the assistance of a jury. Boisliniere v.
County Com'rs, 32 Mo. 378; Ehlers v. Blood, 175
Misc. 72, 22 N.Y.S.2d 1001, 1005.
CORPORAL. Relating to the body; bodily.
Should be distinguished from corporeal (q. v.)
CORPORAL IMBECILITY. Physical inability to
perform completely the act of sexual intercourse;
not necessarily congenital, and not invariably a
permanent and incurable impotence. Griffeth v.
Griffeth, 162 Ill. 368, 44 N.E. 820.
CORPORAL OATH. An oath, the external solem-
nity of which consists in laying one's hand upon
the Gospels while the oath is administered to
him. More generally, a solemn oath. Jackson
v. State, 1 Ind. 185; State v. Norris, 9 N.H. 102;
Com. v. Jarboe, 89 Ky. 143, 12 S.W. 138.
The terms "corporal oath" and "solemn oath" are, in
Indiana, at least, used synonymously; and an oath taken
with the uplifted hand may be properly 'described by
either term.
CORPORAL PUNISHMENT. Physical punish-
ment as distinguished from pecuniary punishment
or a fine; any kind of punishment of or inflicted
on the body, such as whipping or the pillory; the
term may or may not include imprisonment, ac-
cording to the context. Ritchey v. People, 22 Colo.
251, 43 P. 1026; Fowler v. American Mail Line, C.
C.A.Cal., 69 F.2d 905, 907.
The use of rubber hose or other weapon to suppress a
threatened riot or to prevent prisoner from doing bodily
harm to an officer or another inmate is not corporal punish-
ment. O'Brien v. Olson, 42 Cal.App.2d 449, 109 P.2d 8, 16.
CORPORAL TOUCH. Bodily touch; actual phys-
ical contact; manual apprehension.
CORPORALE SACRAMENTUM. In old English
law. A corporal oath.
CORPORALIS INJURIA NON RECIPIT ?ESTI-
MATIONEM DE FUTURO. A personal injury
does not receive satisfaction from a future course
of proceeding, [is not left for its satisfaction to a
future course of proceeding.] Bac. Max. reg. 6;
Broom, Max. 278.
CORPORATE. Belonging to a corporation; as a
corporate name. Incorporated; as a corporate
body.
CORPORATE ACT OR MINISTERIAL ACT OF
MUNICIPAL CORPORATION. For which it can
be held liable is act which is done by virtue of
powers exercised for municipality's own advan-
tage or in negligent performance of duty speci-
fically imposed by statute. Broome v. City of
Charlotte, 208 N.C. 729, 182 S.E. 325, 326.
CORPORATE ALTER EGO, DOCTRINE OF.
Means that courts ignoring forms and looking
to substance will regard stockholders as owners
of corporation's property, or as the real parties
in interest whenever it is necessary to do so to
prevent fraud which might otherwise be perpe-
trated, to redress a wrong which might otherwise
go without redress, or to do justice which might
otherwise fail. Geary v. Cain, 79 Utah 268, 9 P.
2d 396, 398.
CORPORATE AUTHORITIES. The title given in
statutes of several states to the aggregate body
of officers of a municipal corporation, or to cer-
tain of those officers (excluding the others) who
are vested with authority in regard to the par-
ticular matter spoken of in the statute, as, taxa-
tion, bonded debt, regulation of the sale of liquors,
etc. See People v. Knopf, 171 Ill. 191, 49 N.E. 424;
State v. Andrews, 11 Neb. 523, 10 N.W. 410; White
v. Papillion Drainage Dist., 96 Neb. 241, 147 N.W.
218, 219; Schaeffer v. Bonham, 95 Ill. 382.
CORPORATE BODY. This term, or its equiva-
lent "body corporate," is applied to private cor-
porations aggregate; not including municipal cor-
porations. Cedar County v. Johnson, 50 Mo. 225;
East Oakland Tp. v. Skinner, 94 U.S. 256, 24 L.Ed.
125; County Board of Education for Houston
County v. Hunt, 29 Ga.App. 665, 116 S.E. 900.
CORPORATE BONDS. A written promise by a
corporation under seal to pay a fixed sum of
money at some future time named, with stated
interest payable at some fixed time or intervals,
given in return for money or its equivalent re-
ceived by the corporation, sometimes secured, and
sometimes not. Hammond Lumber Co. v. Adams,
7 Ca1.2d 24, 59 P.2d 1030, 1031.
CORPORATE FRANCHISE. The right to exist
and do business as a corporation; the right or
privilege granted by the state or government to
the persons forming an aggregate private cor-
poration, and their successors, to exist and do busi-
ness as a corporation and to exercise the rights
and powers incidental to that form of organiza-
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CORPORATION
tion or necessarily implied in the grant. Bank of
California v. San Francisco, 142 Cal. 276, 75 Pac.
832, 64 L.R.A. 918; State on inf. Wear v. Business
Men's Athletic Club, 178 Mo.App. 548, 163 S.W.
901, 907.
CORPORATE LEGAL INDIVIDUAL. Municipal
corporation possesses two kinds of power, govern-
mental and public, and proprietary and private,
and in exercise of former, corporation is a "muni-
cipal government," while as to latter, it is a "cor-
porate legal individual." Herkimer County v. Vil-
lage of Herkimer, 251 App.Div. 126, 295 N.Y.S. 629,
633.
CORPORATE NAME. When a corporation is
erected, a name is always given to it, or, suppos-
ing none to be actually given, will attach to it by
implication, and by that name alone it must sue
and be sued, and do all legal acts, though a very
minute variation therein is not material, and the
name is capable of being changed (by competent
authority) without affecting the identity or capa-
city of the corporation. Wharton.
CORPORATE PURPOSE. In reference to muni-
cipal corporations, and especially to their powers
of taxation, a "corporate purpose" is one which
shall promote the general prosperity and the wel-
fare of the municipality. Dickinson v. Salt Lake
City, 57 Utah 530, 195 P. 1110, 1111; City of Quit-
man v. Jelks & McLeod, 139 Ga. 238, 77 S.E. 76;
People ex rel. Moshier v. City of Springfield, 370
Ill. 541, 19 N.E.2d 598, 602; or a purpose necessary
or proper to carry into effect the object of the
creation of the corporate body, People v. School
Trustees, 78 Ill. 140; or one which is germane to
the general scope of the objects for which the
corporation was created or , has a legitimate con-
nection with those objects and a manifest relation
thereto. Weightman v. Clark, 103 U.S. 256, 26 L.
Ed. 392; Denman v. City of Tacoma, 170 Wash.
406, 16 P.2d 596, 597.
CORPORATION. An artificial person or legal en-
tity created by or under the authority of the laws
of a state or nation, composed, in some rare in-
stances, of a single person and his successors,
being the incumbents of a particular office, but
ordinarily consisting of an association of numer-
ous individuals, who subsist as a body politic un-
der a special denomination, which is regarded in
law as having a personality and existence distinct
from that of its several members, and which is,
by the same authority, vested with the capacity of
continuous succession, irrespective of changes in
its membership, either in perpetuity or for a limit-
ed term of years, and of acting as a unit or single
individual in matters relating to the common pur-
pose of the association, within the scope of the
powers and authorities conferred upon such bodies
by law. Dartmouth College v. Woodward, 4
Wheat. 518, 636, 657, 4 L.Ed. 629; U. S. v. Trinidad
Coal Co., 137 U.S. 160, 11 S.Ct. 57, 34 L.Ed. 640;
Andrews Bros. Co. v. Youngstown Coke Co., 86 F.
585, 30 C.C.A. 293; Porter v. Railroad Co., 76 Ill.
573; Nebraska Wheat Growers' Ass'n v. Smith,
115 Neb. 177, 212 N.W. 39, 44; State v. Thistle
Down Jockey Club, 114 Ohio St. 582, 151 N.E. 709,
711; Congdon v. Congdon, 160 Minn. 343, 200 N.W.
76, 87; Forest City Mfg. Co. v. International La-
dies' Garment Workers' Union, Local No. 104, 233
Mo.App. 935, 111 S.W.2d 934; In re Crown Heights
Hospital, 183 Misc. 563, 49 N.Y.S.2d 658, 660; Froe-
lich and Kuttner, of Manila, P. I., V. Sutherland,
57 App.D.C. 294, 22 F.2d 870, 872.
A franchise possessed by one or more individ-
uals, who subsist as a body politic, under a special
denomination, and are vested by the policy of the
law with the capacity of perpetual succession, and
of acting in several respects, however numerous
the association may be, as a single individual. 2
Kent, Comm. 267.
An artificial person or being, endowed by law with the
capacity of perpetual succession; consisting either of a
single individual, (termed a "corporation sole,") or of a
collection of several individuals, (which is termed a "cor-
poration aggregate.") 3 Steph.Comm. 166; 1 Bl.Comm.
467, 469. An intellectual body, created by law, composed
of individuals united under a common name, the members
of which succeed each other, so that the body continues
always the same, notwithstanding the change of the indi-
viduals who compose it, and which, for certain purposes,
is considered a natural person. Civil Code La. art. 427.
A "corporation" is more nearly a method than a thing,
and the law, in dealing with a corporation, need not define
it as a person or entity, or even as an embodiment of func-
tions, rights, and duties. Farmers' Loan & Trust Co. v.
Pierson, 222 N.Y.S. 532, 543, 130 Misc. 110.
The statement that a "corporation" is an artificial per-
son or entity, apart from its members, is merely a descrip-
tion, in figurative language, of a corporation viewed as a
collective body. McIntosh v. Dakota Trust Co., 52 N.D.
752, 204 N.W. 818, 825, 40 A.L.R. 1021.
A corporation is a collection of natural persons, joined
together by their voluntary action or by legal compulsion,
by or under the authority of an act of the Legislature,
consisting either of a special charter or of a general per-
missive statute, to accomplish some purpose, pecuniary,
ideal, or governmental, authorized by the charter or gov-
erning statute. State v. Knights of Ku Klux Klan, 117
Kan. 564, 232 P. 254, 257, 37 A.L.R. 1267.
Classification
According to the accepted definitions and rules,
corporations are classified as follows:
Public and private. A public corporation is one
created by the state for political purposes and to
act as an agency in the administration of civil
government, generally within a particular terri-
tory or subdivision of the state, and usually in-
vested, for that purpose, with subordinate and lo-
cal powers of legislation; such as a county, city,
town, or school district. These are also some-
times called "political corporations." Goodwin v.
East Hartford, 70 Conn. 18, 38 A. 876; Dean v.
Davis, 51 Cal. 409; Ten Eyck v. Canal Co., 18 N.J.
Law, 200, 37 Am.Dec. 233; Murphy v. Mercer
County, 57 N.J.Law, 245, 31 A. 229; Van Campen
v. Olean General Hospital, 210 App.Div. 204, 205
N.Y.S. 554, 555; Providence Engineering Corpora-
tion v. Downey Snipbuilding Corporation, C.C.A.
N.Y., 294 F. 641, 646; National Bank of Commerce
in New Orleans v. Board of Sup'rs of La. State
University and Agricultural and Mechanical Cor-
lege, 206 La. 913, 20 So.2d 264, 269.
Private corporations are those founded by and
composed of private individuals, for private pur
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poses, as distinguished from governmental pur-
poses, and having no political or governmental
franchises or duties. Santa Clara County v.
Southern Pac. R. Co., C.C.Cal., 18 F. 385, 402;
People v. McAdams, 82 Ill. 361; Providence En-
gineering Corporation v. Downey Shipbuilding
Corporation, C.C.A.N.Y., 294 F. 641, 648.
The true distinction between public and private cor-
porations is that the former are organized for govern-
mental purposes, the latter not. The term "public" has
sometimes been applied to corporations of which the gov-
ernment owned the entire stock, as in the case of a state
bank. But bearing in mind that "public" is here equiva-
lent to "political," IA will be apparent that this is a mis-
nomer. Again the fact that the business or operations of
a corporation may directly and very extensively affect the
general public (as in the case of a railroad company or a
bank or an insurance company) is no reason for calling it
a public corporation. If organized by private persons for
their own advantage,—or even if organized for the benefit
of the public generally, as in the case of a free public
hospital or other charitable institution,--it is none the
less a private corporation, if it does not possess govern-
mental powers or functions. The uses may in a sense be
called "public," but the corporation is "private," as much
so as if the franchises were vested in a single person.
Dartmouth College v. Woodward, 4 Wheat. 562, 4 L.Ed.
629; Ten Eyok v. Canal Co., 18 N.J.Law, 204, 37 Am.Dec.
233. It is to be observed, however, that those corporations
which serve the public or contribute to the comfort and
convenience of the general public, though owned and man-
aged by private interests, are now (and quite appropri-
ately) denominated "public-service corporations."  See
infra. Another distinction between public and private cor-
porations is that the former are not voluntary associations
(as the latter are) and that there is no contractual rela-
tion between the government and a public corporation or
between the individuals who compose it. Mor.Priv.Corp. §
3; Goodwin v. East Hartford, 70 Conn. 18, 38 A. 876.
The terms "public" and "municipal," as applied to cor-
porations, are not convertible. All municipal corporations
are public, but not vice versa. Brown v. Board of Educa-
tion, 108 Ky. 783, 57 S.W. 612. But there may also be
"public" corporations which are not "municipal" even in
this wider sense of the latter term. Such, according to
some of the authorities, are the "irrigation districts" now
known in several of the western states. Irrigation Dist. v.
Collins, 46 Neb. 411, 64 N.W. 1086. Compare Herring v.
Modesta Irrigation Dist., C.C.Cal., 95 F. 705.
Ecclesiastical and lay. In the English law, all
corporations private are divided into ecclesiasti-
cal and lay, the former being such corporations
as are composed exclusively of ecclesiastics or-
ganized for spiritual purposes, or for administer-
ing property held for religious uses, such as bish-
ops and certain other dignitaries of the church
and (formerly) abbeys and monasteries. 1 Bl.
Comm. 470. Lay corporations are those composed
of laymen, and existing for secular or business
purposes. This distinction is not recognized in.
American law. Corporations formed for the pur-
pose of maintaining or propagating religion or of
supporting public religious services, according to
the rites of particular denominations, and inci-
dentally owning and administering real and per-
sonal property for religious uses, are called "re-
ligious corporations," as distinguished from busi-
ness corporations; but they are "lay" corpora-
tions, and not "ecclesiastical" in the sense of the
English law. Robertson v. Bullions, 11 N.Y. 243.
Eleemosynary and civil. Lay corporations are
classified as "eleemosynary" and "civil;" the for-
mer being such as are created for the distribution
of alms or for the administration of charities or
for purposes falling under the description of
"charitable" in its widest sense, including hospi-
tals, asylums, and colleges; the latter being or-
ganized for the facilitating of business transac-
tions and the profit or advantage of the members.
1 Bl.Comm. 471; Dartmouth College v. Woodward,
4 Wheat. 660, 4 L.Ed. 629.
In the law of Louisiana, the term "civil" as applied to
corporations, is used in a different sense, being contrasted
with "religious." Civil corporations are those which relate
to temporal police; such are the corporations of the cities,
the companies for the advancement of commerce and agri-
culture, literary societies, colleges or universities founded
for the instruction of youth, and the like. Religious cor-
porations are those whose establishment relates only to
religion; such are the congregations of the different reli-
gious persuasions. Civ.Code La. art. 431.
Aggregate and sole. A corporation sole is one
consisting of one person only, and his successors
in some ,particular station, who are incorporated
bylaw in order to . give them some legal capaci-
ties and advantages, particularly that of perpe-
tuity, which . in their natural persons they could
not have had. In this sense, the sovereign in Eng-
land is a sole corporation, so is a bishop, so are
some deans distinct from their several chapters,
and so is every parson and vicar. 3 Steph.Comm.
168, 169; First Parish v. Dunning, 7 Mass. 447;
Reid v. Barry, 93 Fla. 849, 112 So. 846, 859.
A corporation aggregate is one composed of a
number of individuals vested with corporate pow-
ers; and a "corporation," as the word is used in
general popular and legal speech, and as defined
at the head of this title, means a "corporation
aggregate."
Domestic and foreign. With reference to the
laws and the courts of any given state, a "domes-
tic" corporation is one created by, or organized un-
der, the laws of that state; a "foreign" corpora-
tion is one created by or under the laws of anoth-
er state, government, or country. In re Grand
Lodge, 110 Pa. 613, 1 A. 582; Fowler v. Chilling-
worth, 94 Fla. 1, 113 So. 667, 669; In re Ewles'
Estate, 105 Utah 507, 143 P.2d 903, 905.
Close and open. A "close" corporation is one in
which the directors and officers have the power to
fill vacancies in their own number, without allow-
ing to the general body of stockholders any choice
or vote in their election. An "open" corporation is
one in which all the members or corporators have
a vote in the election of the directors and other
officers. McKim v. Odom, 3 Bland, Md., 416.
A close corporation is one which fills its own vacancies or
in which power of voting is held through manipulation
under fixed and virtually perpetual proxies. Brooks v.
Willcuts, C.C.A.Minn., 78 F.2d 270, 273.
Subsidiary and parent. Subsidiary corporation
is one in which another corporation (called par-
ent 'corporation) owns at least a majority of the
shares, and thus has control. Wheeler v. New
York, N. H. and H. R. Co., 112 Conn. 510, 153 A.
159, 160; International Order of Twelve Knights
and Daughters of Tabor v. Fridia, Tex.Civ.App.,
91 S.W.2d 404.
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Other Compound and Descriptive Terms
A business corporation. One formed for the
purpose of transacting business in the widest
sense of that term, including not only trade and
commerce, but manufacturing, mining, banking,
insurance, transportation, and practically every
form of commercial or industrial activity where
the purpose of the organization is pecuniary prof-
it; contrasted with religious, charitable, educa-
tional, and other like organizations, which are
sometimes grouped in the statutory law of a state
under the general designation of "corporations not
for profit." Winter v. Railroad Co., 30 Fed.Cas.
329; McLeod v. College, 69 Neb. 550, 96 N.W. 265.
Corporation de facto. One existing under color
of law and in pursuance of an effort made in good
faith to organize a corporation under the statute;
an association of men claiming to be a legally in-
corporated company, and exercising the powers
and functions of a corporation, but without actual
lawful authority to do so. Foster v. Hare, 26 Tex.
Civ.App. 177, 62 S.W. 541; Cedar Rapids Water
Co. v. Cedar Rapids, 118 Iowa, 234, 91 N.W. 1081;
Tulare Irrig. Dist. v. Shepard, 185 U.S. 1, 22 S.Ct.
531, 46 L.Ed. 773; Evens v. Anderson, 132 Minn.
59, 155 N.W. 1040, 1041.
Its elements are a law or charter authorizing such a
corporation, an attempt in good faith to comply with law
authorizing its incorporation, and unintentional omission
of essential requirements of the law or charter, and exer-
cise in good faith of corporate functions under the law or
charter. Richmond v. Town of Largo, 155 Fla. 226, 19
So.2d 791, 793.
Corporation de jure. That which exists by rea-
son of full compliance by incorporators with re-
quirements of an existing law permitting organiza-
tion of such corporation; it is impregnable to as-
sault in the courts from any source. Henderson
v. School Dist. No. 44, 75 Mont. 154, 242 P. 979, 980.
Joint-stock corporation. This differs from a
joint-stock company in being regularly incorporat-
ed, instead of being a mere partnership, but re-
sembles it in having a capital divided into shares
of stock. Most business corporations (as distin-
guished from eleemosynary corporations) are of
this character.
A "joint-stock corporation" is one organized under a
general statute authorizing the creation of such corpora-
tions and providing the procedure for creating it, and is
distinguished from a "corporation" created by special
resolution or act of the Legislature, which resolution or
act is the charter of the corporation, when accepted, and
the corporation organized thereunder, and the corporation
is a chartered corporation, as distinguished from a joint-
stock corporation. Barber v. Morgan, 89 Conn. 583, 94 A.
984, 986, Ann.Cas.1916E, 102.
Migratory corporation. A corporation, organ-
ized under laws of another state than that of in-
corporators' residence for purpose of doing all or
greater part of their business in state of their
residence or in other state than that of incorpora-
tion. Toklan Royalty Corporation v. Tiffany, 193
Oki. 120, 141 P.2d 571, 573.
Moneyed corporations are, properly speaking,
those dealing in money or in the business of re-
ceiving deposits, loaning money, and exchange;
but in a wider sense the term is applied to all busi-
ness corporations having a money capital and em-
ploying it in the conduct of their business. Mu-
tual Ins. Co. v. Erie County, 4 N.Y. 444; In re
California Pac. R. Co., 4 Fed.Cas. 1,060; Hobbs v.
National Bank, C.C.A.N.Y., 101 F. 75, 41 C.C.A.
205.
Municipal corporations. See that title.
Public-service corporations. Those whose op-
erations serve the needs of the general public or
conduce to the comfort and convenience of an en-
tire community, such as railroads, gas, water, and
electric light companies. The business of such
companies is said to be "affected with a public
interest," and for that reason they are subject to
legislative regulation and control to a greater ex-
tent than corporations not of this character.
Washington & C. Ry. Co. v. Mobile & 0. R. Co.,
C.C.A.Ala., 255 F. 12, 14.
Quasi corporations. Organizations resembling
corporations;  municipal societies or similar
bodies which, though not true corporations in all
respects, are yet recognized, by statutes or im-
memorial usage, as persons or aggregate corpora-
tions, with precise duties which may be enforced,
and privileges which may be maintained, by suits
at law. They may be considered quasi corpo-
rations, with limited powers, co-extensive with
the duties imposed upon them by statute or
usage, but restrained from a general use of the
authority which belongs to those metaphysical
persons by the common law. Scates v. King, 110
Ill. 456; Barnes v. District of Columbia, 91 U.S.
552, 23 L.Ed. 440.
This term is lacking in definiteness and precision. It
appears to be applied indiscriminately (a) to all kinds of
municipal corporations, the word "quasi" being introduced
because it is said that these are not voluntary organiza-
tions like private corporations, but created by the legisla-
ture for its own purposes and without reference to the
wishes of the people of the territory affected; (b) to all
municipal corporations except cities and incorporated
towns, the latter being considered the only true municipal
corporations because they exist and act under charters or
statutes of incorporation while counties, school districts,
and the like are merely created or set off under general
laws; (c) to municipal corporations possessing only a low
order of corporate existence or the most limited range of
corporate powers, such as hundreds in England, and coun-
ties, villages, and school districts in America.
A term applied to those bodies, or municipal societies,
which, though not vested with the general powers of cor-
porations, are yet recognized, by statutes or immemorial
usage, as persons, or aggregate corporations, with precise
duties, which may be enforced, and privileges, which may
be maintained, by suits at law. State v. Hagen, 136 La.
868, 67 So. 935, 936.
There is a well-defined and marked distinction between
municipal corporations proper and political or quasi cor-
porations. Cities, towns, and villages are municipal cor-
porations proper, while counties, townships, school dis-
tricts, road districts, and the like are quasi corporations.
City of East Cleveland v. Board of Education of City
School Dist. of East Cleveland, 112 Ohio St. 607, 148 N.E.
350, 351.
"Quasi corporation" is a phrase used to designate bodies
which possess a limited number of corporate powers, and
which are low down in the scale or grade of corporate
existence, and is generally applied to a body which exer-
cises certain functions of a corporate character, but which
has not been created a corporation by any statute, general
or special. Eakle v. Board of Education of Independent
School Dist. of Henry, 97 W.Va. 434, 125 S.E. 165, 167.
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Quasi public corporation. This term Is some-
times applied to corporations which are not strict-
ly public, in the sense of being organized for gov-
ernniental purposes, but whose operations con-
tribute to the comfort, convenience, or welfare of
the general public, such as telegraph and tele-
phone companies, gas, water, and electric light
companies, and irrigation companies. More com-
monly and more correctly styled "public-service
corporations." Wiemer v. Louisville Water Co.,
C.C.Ky., 130 F. 251; Campbell v. Watson, 62 N.J.
Eq. 396, 50 A. 120; Burgess v. City of Brockton,
235 Mass. 95, 126 N.E. 456, 460; Van Valkenburgh
v. Ford, Tex.Civ.App., 207 S.W. 405, 414; Borough
of Mt. Union v. Kunz, 290 Pa. 356, 139 A. 118, 121.
There is a large class of private corporations which on
account of special franchises conferred on them owe a duty
to the public which they may be compelled to perform.
This class of corporations is known as public service cor-
porations, and in legal phraseology as "quasi public cor-
porations," or corporations affected with a public interest.
A "quasi public corporation" may be said to be a private
corporation which has given to it certain powers of a pub-
lic nature, such, for instance, as the power of eminent
domain, in order to enable it to discharge its duties for
the public benefit, in which respect it differs from an
ordinary private corporation, the powers of which are given
and exercised for the exclusive advantage of its stockhold-
ers. State ex rel.. Coco v. Riverside Irr. Co., 142 La. 10, 76
So. 216, 218.
The term is also applied to corporations of that class
sometimes called "quasi municipal corporations," such as
school districts; Courtright v. Consolidated Independent
School Dist. of Mapleton, 203 Iowa, 26, 212 N.W. 368. 369;
road districts; Road Improvement Dist. No. 7 of Poinsett
County, Ark., v. Guardian Savings & Trust Co., C.C.A.
Ark., 298 F. 272, 274; Taylor Coal Co. v. Board of Drain-
age Com'rs of Ohio County, 189 Ky. 793, 225 S. W. 368, 369;
irrigation districts; Bonneville Irr. Dist. v. Ririe, 57 Utah,
306, 195 P. 204, 205; and counties, townships, etc. Forbes
Pioneer Boat Line v. Board of Com'rs of Everglades Drain-
age Dist., 77 Fla. 742, 82 So. 346, 350.
Spiritual corporations. Corporations, the mem-
bers of which are entirely spiritual persons, and
incorporated as such, for the furtherance of reli-
gion and perpetuating the rights of the church.
Trading corporations. A commercial corpora-
tion engaged in buying and selling. The word
"trading," is much narrower in scope than "busi-
ness," as applied to corporations, and though a
trading corporation is a business corporation,
there are many business corporations which are
not trading companies. Dartmouth College v.
Woodward, 4 Wheat. 669, 4 L.Ed. 629; Adams v.
Railroad Co., 1 Fed.Cas. 92.
Tramp corporations. Companies chartered in
one state without any intention of doing business
therein, but which carry on their business and op-
erations wholly in other states. State v. Georgia
Co., 112 N.C. 34, 17 S.E. 10, 19 L.R.A. 485.
Synonyms
The words "company" and "corporation" are
commonly used as interchangeable terms. In
strictness, however, a company is an association
of persons for business or other purposes, em-
bracing a considerable number of individuals,
which may or may not be incorporated. In the
former case, it is legally a partnership or a joint-
stock company; in the latter case, it is properly
called a "corporation." Goddard v. Railroad Co.,
202 Ill. 362, 66 N.E. 1066. For the particulars in
which corporations differ from "Joint-Stock Com-
panies" and "Partnerships," see those titles.
CORPORATION ACT. In English law. The stat-
ute 13 Car. II. St. 2, c. 1; by which it was pro-
vided that no person should thereafter be elected
to office in any corporate town that should not,
within one year previously, have taken the sacra-
ment of the Lord's Supper, according to the rites
of the Church of England; and every person so
elected was also required to take the oaths of al-
legiance and supremacy. 3 Steph.Comm. 103, 104;
4 Bl.Comm. 58. This statute is now repealed. 4
Steph.Comm. 511.
CORPORATION COURTS. Certain courts in Vir-
ginia described as follows: "For each city of the
state, there shall be a court called a 'corporation
court,' to be held by a judge, with like qualifica-
tions and elected in the same manner as judges of
the county court." Code Va.1887, § 3050, Code
1919, § 5905.
CORPORATOR. A member of a corporation ag-
gregate. Grant, Corp. 48; Seaborn v. Wingfield,
56 Nev. 260, 48 P.2d 881, 883.
CORPORE ET ANIMO. Lat. By the body and
by the mind; by the physical act and by the men-
tal intent. Dig. 41, 2, 3.
CORPOREAL. A term descriptive of such things
as have an objective, material existence; percepti-
ble by the senses of sight and touch; possessing a
real body. Opposed to incorporeal and spiritual.
Sullivan v. Richardson, 33 Fla. 1, 14 So. 692; Bour-
land v. State, 133 Tex.Cr.R. 544, 112 S.W.2d 720,
721.
There is a distinction between "corporeal" and "corpo-
ral." The former term means "possessing a body," that
is, tangible, physical, material; the latter means "relating
to or affecting a body," that is, bodily, external. Corpo-
real denotes the nature or physical existence of a body;
corporal denotes its exterior or the co-ordination of it with
some other body. Hence we speak of "corporeal heredita-
ments," but of "corporal punishment," "corporal touch,"
"corporal oath," etc.
CORPOREAL HEREDITAMENTS. See Heredita-
ments.
CORPOREAL PROPERTY. Such as affects the
senses, and may be seen and handled, as opposed
to incorporeal property, which cannot be seen or
handled, and exists only in contemp l ation. Moz-
ley & Whitley.
Thus a house is corporeal, but the annual rent payable
for its occupation is incorporeal. Corporeal property is, if
movable, capable of manual transfer ; if immovable, pos-
session of it may be delivered up. But incorporeal prop-
erty cannot be so transferred, but some other means must
be adopted for its transfer, of which the most usual is an
instrument in writing.
In Roman law, the distinction between things corporeal
and incorporeal rested on the sense of touch; tangible
objects only were considered corporeal. In modern law,
all things which may be perceived by any of the bodily
senses are termed corporeal, although a common definition
• of the word includes merely that which can be touched
and seen. 14a C.J. 1424 (citing Abbott's Diet.). Marnett
Oil & Gas Co. v. Munsey, Tex.Civ.App., 232 S.W. 867, 869;
Sullivan v. Richardson, 33 Fla. 1, 116, 14 So. 692.
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CORRECTOR
The term "property," however, is a generic term of
extensive application. 32 Cyc. 647. In its strict legal
sense, "property" is nothing but the right of dominion,
possession, and disposition which may be acquired over
physical things. Braceville Coal ,Co. v. People, 147 Ill. 66,
35 N.E. 62, 22 L.R.A. 340; Fears v. State, 102 Ga. 274, 29
S.E. 463; De Lauder v. Baltimore County, 94 Md. 1, 50 A.
427. It follows that from that point of view, there is no
such thing as "tangible" property or "corporeal" property,
and the only meaning which can in law he given to the
expression "corporeal property" is the right to possess,
use, occupy, and enjoy corporeal things and take the profits
thereof. Transcontinental Oil Co. v. Emmerson, 298 Ill.
394, 131 N.E. 645, 648, 16 A.L.R. 507.
CORPS DIPLOMATIQUE. In international law.
Ambassadors and diplomatic persons at any court
or capital.
CORPSE. The dead body of a human being. 1
Russ. & R. 366, n.; 2 Term 733; 1 Leach 497;
Com. v. Loring, 8 Pick., Mass., 370; Dig. 47. 12.
3. 7; 11. 7. 38; Code, 3. 44. 1; Co. 3d Inst. 203; 1
Russ.Cr. 629.
CORPUS. (Lat.) Body; an aggregate or mass,
(of men, laws, or articles; ) physical substance, as
distinguished from ihtellectual conception; the
principal sum or capital, as distinguished from in-
terest or income. In re Barron's Will, 163 Wis. 275,
155 N.W. 1087, 1089; United States Trust Co. of
New York v. Heye, 181 App.Div. 544, 168 N.Y.S.
1051, 1057; Macy v. Ladd, 128 Misc. 732, 219 N.Y.S.
449, 460; In re Schley, 181 ,App.Div. 931, 173 N.Y.S.
317, 319.
A substantial or positive fact, as distinguished
from what is equivocal and ambiguous. The cor-
pus delicti (body of an offense) is the fact of its
having been actually committed. Best, Pres. 269-
279.
A corporeal act of any kind, (as distinguished
from animus or mere intention,) on the part of
him who wishes to acquire a thing, whereby he
obtains the physical ability to exercise his power
over it whenever he pleases. The word occurs
frequently in this sense in the civil law. Mackeld.
Rom.Law, § 248.
Corpus comitatus. The body of a county. The
whole county, as distinguished from a part of it,
or any particular place in it. U. S. v. Grush, 5
Mason, 290, Fed.Cas.No.15,268.
Corpus corporatum. A corporation; a corporate
body, other than municipal.
Corpus cum causa. (The body with the cause.)
An English writ which issued out of chancery, to
remove both the body and the record, touching
the cause of any man lying in execution upon a
judgment for debt, into the king's bench, there to
remain until he satisfied the judgment. Cowell;
Blount.
Corpus delicti. The body of a crime. The body
(material substance) upon which a crime has been
committed, e. g., the corpse of a murdered man,
the charred remains of a house burned down. In
a derivative sense, the substance or foundation of
a crime; the substantial fact that a crime has
been committed. People v. Dick, 37 Cal. 281;
White v. State, 49 Ala. 347; Goldman v, Com.,
100 Va. 865, 42 S.E. 923; State v. Schyhart, Mo.
Sup., 199 S.W. 205, 211; State v. Brown, 103 S.C.
437, 88 S.E. 21, 22, L.R.A.1916D, 1295; State v.
Johnson, 95 Utah 572, 83 P.2d 1010, 1014. When
applied to any particular offense, the actual com-
mission by some one of particular offense charged.
Gorum v. State, 60 Okl.Cr. 248, 63 P.2d 765, 766.
Corpus pro corpore. In old records. Body for
body. A phrase expressing the liability of manu-
captors. 3 How.State Tr. 110.
CORPUS CHRISTI DAY. In English law. A
feast instituted in 1264, in honor of the sacrament.
32 Hen. VIII. c. 21.
CORPUS HUMANUM NON RECIPIT IESTIMA-
TIONEM. The human body does not admit of
valuation. Hob. 59.
CORPUS JURIS. A body of law. A term used to
signify a book comprehending several collections
of law. There are two principal collections to
which this name is given; the Corpus Juris Civilis,
and the Corpus Juris Canonici. Also name of an
encyclopaedic statement of the principles of Anglo-
American law.
Corpus juris canonici. The body of the canon
law. A compilation of the canon law, comprising
the decrees and canons of the Roman Church, con-
stituting the body of ecclesiastical law of that
church.
Corpus juris civilis. The body of the civil law.
The system of Roman jurisprudence compiled and
codified under the direction of the emperor Jus-
tinian, in A.D. 528-534. This collection comprises
the Institutes, Digest, (or Pandects,) Code, and
Novels. The name is said to have been first ap-
plied to this collection early in the seventeenth
century.
CORRECT ATTEST. These words, used before
the signatures of bank directors to reports made
to the commissioner of banking, mean not alone
to bear witness, but to affirm to be true or genu-
ine, and such words are appropriately used for the
affirmation of persons in their official capacity to
attest the truth of a writing. Eland State Bank v.
Massachusetts Bonding & Ins. Co., .165 Wis. 493,
162 N.W. 662, 663.
CORRECTED POLICY. Policy issued after inves-
tigation of risk to correct misstatements in policy
first issued. Sherri v. National Surety Co., of New
York, 243 N.Y. 266, 153 N.E. 70, 71.
CORRECTION. Discipline; chastisement admin-
istered by a master or other person in authority to
one who has committed an offense, for the pur-
pose of curing his faults or bringing him into prop-
er subjection.
CORRECTION, HOUSE OF. A prison for the ref-
ormation of petty or juvenile offenders.
CORRECTOR OF THE STAPLE. In old English
law. A clerk belonging to the staple, to write
and record the bargains of merchants there made.
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CORREGIDOR
CORREGIDOR. In Spanish law. A magistrate
who took cognizance of various misdemeanors,
and of civil matters. 2 White, New Recop. 53.
CORREI. Lat. In the civil law. Co-stipulators;
joint stipulators.
CORREI CREDENDI. In the civil and Scotch
law. Joint creditors; creditors in solido. Poth.
Obl. pt. 2, c. 4, art. 3, § 11.
CORREI DEBENDI. In Scotch law. Two or more
persons bound as principal debtors to another.
Ersk.Inst. 3, 3, 74.
CORRELATIVE. Having a mutual or reciprocal
relation, in such sense that the existence of one
necessarily implies the existence of the other.
Father and son are correlative terms. Claim
and duty are correlative terms.
CORRESPONDENCE. Interchange of written
communications. The letters written by a person
and the answers written by the one to whom they
are addressed.
CORROBORATE. To strengthen; to add weight
or credibility to a thing by additional and con-
firming facts or evidence. Lassiteo v. Seaboard
Air Line Ry. Co., 171 N.C. 283, 88 S.E. 335, 337;
Bradley v. State, 19 Ala.App. 578, 99 So. 321, 322;
Holmes v. State, 70 Tex.Cr.R. 423, 157 S.W. 487,
493; State v. Fullerton Lumber Co., 35 S.D. 410,
152 N.W. 708, 715; Kincaid v. State, 131 Tex.Cr.
R. 101, 97 S.W.2d 175, 177.
The expression "corroborating circumstances" clearly
does not mean facts which, independent of a confession,
will warrant a conviction; for then the verdict would
stand not on the confession, but upon those independent
circumstances. To corroborate is to strengthen, to confirm -
by additional security, to add strength. The testimony of
a witness is said to be corroborated when it is shown to
correspond with the representation of some other witness,
or to comport with some facts otherwise known or estab-
lished. Corroborating circumstances, then, used in refer-
ence to a confession, are such as serve to strengthen it, to
render it more probable; such, in short, as may serve to
impress a jury with a belief in its truth. State v. Guild,
10 N.J.Law, 163, 18 Am. Dec. 404.
CORROBORATING EVIDENCE. Evidence sup-
plementary to that already given and tending to
strengthen or confirm it; additional evidence of
a different character to the same point. In re
Cardoner's Estate, 27 N.M. 105, 196 P. 327, 328;
State v. Smith, 75 Mont. 22, 241 P. 522, 523; People
v. Follette, 74 Cal.App. 178, 240 P. 502, 519; Rad-
cliffe v. Chavez, 15 N.M. 258, 110 P. 699, 701.
CORROBORATIVE EVIDENCE. See Corroborat-
ing Evidence.
CORRUPT. Spoiled; tainted; vitiated; de-
praved; debased. Webster.
CORRUPT INTENT. A "corrupt intent," as an
element of usury, consists in the charging or re-
ceiving of excessive interest with knowledge that
it is prohibited by law and the purpose to violate
the law. Ector v. Osborne, 179 N.C. 667, 103 S.E.
388, 389, 13 A.L.R. 1207; Teshner v. Roome, 106
Or. 382, 212 P. 473, 474. But see Dege v. Produce
Exchange Bank of St. Paul, 212 Minn. 44, 2 N.W.
2d 423, 425, which only requires intent to receive
more than the law permits for forbearance of
money, but does not require that taker knows that
he is violating usury law.
CORRUPT PRACTICES ACT. The Act of June
25, 1910, c. 392, 36 Stat. 822, which, like the Eng-
lish act of 1883 and supplements, dealt with "cor-
rupt and illegal practices" in connection with
elections, and which was repealed by the "Federal
Corrupt Practices Act" of Feb. 28, 1925, c. 368,
Title III, 2 U.S.C.A. § 241 et seq.
CORRUPTIO OPTIMI EST PESSIMA. Corrup-
tion of the best is worst. Jacobs v. Beecham, 221
U.S. 263, 31 S.Ct. 555, 55 L.Ed. 729.
CORRUPTION. Illegality; a vicious and fraudu-
lent intention to evade the prohibitions of the
law; something against or forbidden by law;
moral turpitude or exactly opposite of honesty
involving intentional disregard of law from im-
proper motives. State v. Barnett, 60 Okl.Cr. 355,
69 P.2d 77, 87.
An act done with an intent to give some advan-
tage inconsistent with official duty and the rights
of others. Johnson v. U. S., C.C.A.Alaska, 260 F.
783, 786.
The act of an official or fiduciary person who unlawfully
and wrongfully uses his station or character to procure
some benefit for himself or for another person, contrary to
duty and the rights of others. U. S. v. Johnson, C.C.Ga.,
26 F. 682; Worsham v. Murchison, 66 Ga. 719; U. S. v.
Edwards, C.C.Ala., 43 F. 67.
CORRUPTION OF BLOOD. In English law.
The consequence of attainder, being that the at-
tainted person could neither inherit lands or other
hereditaments from his ancestor, nor retain those
he already had, nor transmit them by descent to
any heir, because his blood was considered in law
to be corrupted. Avery v. Everett, 110 N.Y. 317, 18
N.E. 148, 1 L.R.A. 264; 1 Steph.Comm. 446. This
was abolished by St. 3 & 4 Wm. IV. c. 106, and
33 & 34 Vict. c. 23, and is unknown in America.
Const.U.S. art. 3, § 3.
CORRUPTLY. When used in a statute, this term
generally imports a wrongful design to acquire
some pecuniary or other advantage. Grebe v.
State, 112 Neb. 715, 201 N.W. 143, 144; Bosselman
v. U. S., C.C.A.N.Y., 239 F. 82, 86; State v. Ship-
man, 202 N.C. 518, 163 S.E. 657.
CORSELET. Ancient armor which covered the
body.
CORSE-PRESENT. In old English law. A mor-
tuary, thus termed because, when a mortuary
became due on the death of a man, the best or
second-best beast was, according to custom, offered
or presented to the priest, and carried with the
co:pse. In Wales a corse-present was due upon
the death of a clergyman to the bishop of the dio-
cese, till abolished by 12 Anne St. 2, c. 6. 2 Bl.
Comm. 426; Stat. 21 Hen. VIII. cap. 6; Cowell.
CORSNED. In Saxon law. The morsel of execra-
tion. A species of ordeal in use among the Sax-
ons, performed by eating a piece of bread over
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COSTS
which the priest had pronounced a certain im-
precation. If the accused ate it freely, he was pro-
nounced innocent; but, if it stuck in his throat,
it was considered as a proof of his guilt. Crabb,
Eng.Law, 30; 1 Reeve, Eng.Law, 21; 4 Bl.Comm.
345; Spelman, Gloss. 439.
CORTES. The name of the legislative assemblies,
the parliament or congress, of Spain and Portugal.
CORTEX. The bark of a tree; the outer covering
of anything.
CORTIS. A court or yard before a house. Blount.
CORTULARIUM, or CORTARIUM. In old rec-
ords. A yard adjoining a country farm.
CORVEE. In French law. Gratuitous labor ex-
acted from the villages or communities, especially
for repairing roads, constructing bridges, etc.
State v. Covington, 125 N.C. 641, 34 S.E. 272.
CORVEE SEIGNEURIALE. Services due the lord
of the manor. Guyot, 1Up.Univ., 3 Low.C. 1.
COSA JUZGADA, In Spanish law. A cause or
matter adjudged, (res judicata.)  White, New
Recop. b. 3, tit. 8, note.
COSAS COMUNES. In Spanish law. A term cor-
responding to the res communes of the Roman
law, and descriptive of such things as are open
to the equal and common enjoyment of all per-
sons and not to be reduced to private ownership,
such as the air, the sea, and the water of running
streams. Hall, Mex.Law, 447; Lux v. Haggin,
69 Cal. 255, 10 P. 707.
COSBERING. See Coshering.
COSDUNA. In feudal law. A custom or tribute.
COSEN, COZEN. In old English law. To cheat.
"A cosening knave." 3 Leon. 171.
COSENAGE. (Also spelled "Cosinage," "Cousin-
age.") In old English law. A writ that lay for
the heir where the tresail, e., the father of the
besail, or great-grandfather, was seised of lands
in fee at his death, and a stranger entered upon
the land and abated. Fitzh.Nat.Brev. 221; 3 Bla.
Comm. *186.
Kindred; cousinship; relationship; affinity.
Stat. 4 Hen. III. cap. 8; 3 Bla.Comm. 186; Co.
Litt. 160a.
COSENING. In old English law. An offense,
mentioned in the old books, where anything was
done deceitfully, whether belonging to contracts
or not, which could not be properly termed by
any special name. The same as the stellionatus
of the civil law. Cowell; West.Symb. pt. 2, Indict-
ment, § 68; Blount; 4 Bla.Comm. 158.
COSHERING. In old English law. A feudal pre-
rogative or custom for lords to lie and feast them-
selves at their tenants' houses. Cowell.
COSMOPATHIC. Open to the access of super-
normal knowledge or emotion supposedly from a
preternatural world;— applied to methods of heal-
ing. Commonwealth v. Zimmerman, 221 Mass.
184, 108 N.E. 893, 895, Ann.Cas.1916A, 858.
COSMUS. Clean. Blount.
COSS. A term used by Europeans in India to de-
note a road-measure of about two miles, but dif-
fering in different parts. Wharton.
COST. Expense. Barton v. Bowlin, 111 Ark. 123,
163 S.W. 502, 504. The price paid, as for an arti-
cle purchased for exportation, with all incidental
charges paid at the place of exportation. Goodwin
v. U. S., 2 Wash.C.C. 493, Fed.Cas.No.5,554. The
amount originally expended in performing a par-
ticular act or operation, or for production or con-
struction, as of a building. Kempf v. Ranger, 132
Minn. 64, 155 N.W. 1059, 1060; Hoggson Bros. v.
Spiekerman, 161 N.Y.S. 930, 933, 175 App.Div. 144.
Cost is sometimes used as equivalent to "value."
Loughney v. Klein, C.C.A.Pa., 221 F. 197, 199.
Cost-book. In English law. A book in which
a number of adventurers who have obtained per-
mission to work a lode, and have agreed to share
the enterprise in certain proportions, enter the
agreement, and from time to time the receipts and
expenditures of the mine, the names of the share-
holders, their respective accounts with the mine,
and transfers of shares. These associations are
called "Cost-Book Mining Companies," and are
governed by the general law of partnership.
Lindl.Partn. *147.
Cost-plus contract. One which fixes the amount
to be paid the contractor on a basis, generally, of
the cost of the material and labor, plus an agreed
percentage thereof. The Spica, C.C.A.N.Y., 289
F. 436, 445.
Cost price. That which is actually paid for
goods. Buck v. Burk, 18 N.Y. 337; Esterman•Ver-
kamp Co. v. Rouse, 211 Ky. 791, 278 S.W. 124, 127.
Costs of collection. Strictly, expenses involved
in endeavoring to make collection, as of a promis-
sory note; but as used in or with reference to such
notes, the phrase is synonymous with attorney's
fees. McClain v. Continental Supply Co., 66 Okl.
225, 168 P. 815, 818; Wood v. Ferguson, 71 Mont.
540, 230 P. 592, 594. It does not refer to costs of
suit, which are recoverable by law. Cox v. Hagan,
125 Va. 656, 100 S.E. 666, 674.
CO-STIPULATOR. A joint promisor.
COSTS. A pecuniary allowance, made to the suc-
cessful party, (and recoverable from the losing
party,) for his expenses in prosecuting or defend-
ing a suit or a distinct proceeding within a suit.
Stevens v. Bank, 168 N.Y. 560, 61 N.E. 904; Ben-
nett v. Kroth, 37 Kan. 235, 15 P. 221, 1 Am.St.Rep.
248; Pezel v. Yerex, 56 Cal.App. 304, 205 P. 475,
478; In re Leary's Estate, 172 Misc. 286, 14 N.Y.S.
2d 960, 961.
Expenses pending suit as allowed or taxed by the court.
Jones v. Adkins, 170 Ark. 288, 280 S.W. 389, 394.
Fees and charges required by law to be paid
to the courts or some of their officers, the amount
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COSTS
of which is fixed by law. Blair v. Brownstone
Oil & Refining Co., 20 Cal.App. 316, 128 P. 1022.
Costs and fees were originally altogether different in
their nature. The one is an allowance to a party for
expenses incurred in prosecuting or defending a suit; the
other, a compensation to an officer for services rendered in
the progress of a cause. Therefore, while an executor or
administrator was not personally liable to his adversary
for costs, yet, if at his instance an officer performed serv-
ices for him, he had a personal demand for his fees. Mus-
ser v. Good, 11 Serg. & R., Pa., 247. Moreover, costs are
an incident to the judgment; fees are compensation to
public officers for services rendered individuals not in the
course of litigation. Tillman v. Wood, 58 Ala. 579.
In Georgia, however, it is held that "costs," include all
charges fixed by statute as compensation for services ren-
dered by officers of the court in the progress of the cause.
Welton. County v. Dean, 23 Ga.App. 97, 97 S.E. 561, 562.
There is no general or controlling provision or principle
of law to the effect that attorney fees that may by statute
be recovered by the winning party against the losing party
in a suit or action are, or should be regarded as, costs in
the case. "Costs" do not include attorney fees unless such
fees are by a statute denominated costs or are by statute
allowed to be recovered as costs in the case. State ex rel.
Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668, 669;
McRostie v. City of Owatonna, 152 Minn. 63, 188 N.W. 52,
54; Littlefield v. Scott, Tex.Civ.App., 244 S.W. 824, 826;
Calman v. Cox, Mo.App., 296 S.W. 845, 846; City of Los
Angeles v. Abbott, 217 Cal. 184, 17 P.2d 993, 996.
But the word "costs" is frequently understood as includ-
ing attorney fees. McClain v. Continental Supply Co., 66
Okl. 225, 168 P. 815, 817; Livesley v. Strauss, 104 Or. 356,
207 P. 1095; Lonoke County v. Reed, 122 Ark. 111, 182
S.W. 563, 564; J. I. Case Plow-Works v. J. I. Case Thresh-
ing Mach. Co., 162 Wis. 185, 155 N.W. 128, 138.
In England, the term "costs" is also used to
designate the charges which an attorney or solidi-,
tor is entitled to make and recover from his client,
as his remuneration for professional services,,
such as legal advice, attendances, drafting and
copying documents, conducting legal proceedings,
etc.
Bill of Costs. A certified, itemized statement of
the amount of costs in an action or suit.
Certificate for Costs. In English practice, a cer-
tificate or memorandum drawn up and signed by
the judge before whom a case was tried, setting
out certain facts, the existence of which must be
thus proved before the party is entitled, under the
statutes, to recover costs.
Cost Bond, or Bond for Costs. A bond given by
a party to an action to secure the eventual pay-
ment of such costs as may be awarded against
him.
Costs de Incremento. Increased costs, costs of
increase. Costs adjudged by the court in addi-
tion to those assessed by the jury. Day v. Wood-
worth, 13 How. 372, 14 L.Ed. 181.
Those extra expenses incurred which do not appear on
the face of the proceedings, such as witnesses' expenses,
fees to counsel, attendances, court fees, etc. Wharton.
Costs cf the Day. Costs which are incurred in
preparing for the trial of a cause on a specified
day, consisting of witnesses' fees, and other fees
of attendance. Archb.N.Prac. 281; Ad.Eq. 343.
Costs to Abide Event. When an order is made
by an appellate court reversing a judgment, with
"costs to abide the event," the costs intended by
the order include those of the appeal, so that, if
the appellee is finally successful, he is entitled to
tax the costs of the appeal. First Nat. Bank v.
Fourth Nat. Bank, 84 N.Y. 469; Casualty Co. of
America v. A. L. Swett Electric Light & Power
Co., 121 Misc. 268, 200 N.Y.S. 79,6, 801.
Double Costs. The ordinary single costs of suit,
and one-half of that amount in addition. 2 Tidd,
Pr. 987. "Double" is not used here in its ordinary
sense of "twice" the amount. Van Aulen v. Deck-
er, 2 N.J.Law, 108; Gilbert v. Kennedy, 22 Mich.
19. But see Moran v. Hudson, 34 N.J.Law, 531.
These costs are now abolished in England by St.
5 & 6 Vict. c. 97. Wharton,
Final Costs. Such costs as are to be paid at the
end of the suit; costs, the liability for which de-
pends upon the final result of the litigation. Good-
year v. Sawyer, C.C.Tenn., 17 F. 8.
Interlocutory Costs. In practice. Costs accru-
ing upon proceedings in the intermediate stages
of a cause, as distinguished from final costs; such
as the costs of motions. 3 Chit.Gen.Pr. 597; Good-
year v. Sawyer, C.C.Tenn., 17 F. 6.
Security for Costs. In practice. A security
which a defendant in an action may require of a
plaintiff who does not reside within the jurisdic-
tion of the court, for the payment of such costs as
may be awarded to the defendant. 1 Tidd, Pr. 534.
Ex parte Louisville & N. R. Co., 124 Ala. 547, 27
So. 239.
Treble Costs. A rate of costs given in certain
actions, consisting, according to its technical im-
port, of the common costs, half of these, and half
of the latter. 2 Tidd, Pr. 988. The word "treble,"
in this application, is not understood in its literal
sense of thrice the amount of single costs, but
signifies merely the addition together of the three
sums fixed as above. Id. Treble costs have been
abolished in England, by St. 5 & 6 Vict. c. 97. In
American law. In Pennsylvania and New Jersey
the rule is different. When an act of assembly
gives treble costs, the party is allowed three times
the usual costs, with the exception that the fees
of the officers are not to be trebled when they are
not regularly or usually payable by the defendant.
Shoemaker v. Nesbit, 2 Rawle, Pa., 203; Welsh v.
Anthony, 16 Pa. 256; Mairs v. Sparks, 5 N.J.Law,
516.
COSTUMBRE. In Spanish law. Custom; an un-
written law established by usage, during a long
space of time. Las Partidas, pt. 1, tit. 2, 1. 4.
CO-SURETIES. Joint sureties; two or more
sureties to the same obligation. State of Arkan-
sas v. Pufahl, C.C.A.Ark., 52 F.2d 116, 120; French
v. Young, 292 Mich. 443, 290 N.W. 861, 862, 863.
COTA. A cot or hut. Blount.
COTAGIUM. In old English law. A cottage.
COTARIUS. In old English law. A cottager, who
held in free socage, and paid a stated fine or rent
in provisions or money, with some occasional per-
sonal services. See Coterellus.
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COUNCIL
COTTON. A term which is applicable to such
substance in whatever state it exists after it has
been gathered and before it is manufactured into
some article of merchandise, whether the seed
Black's Law Dictionary Revised 4th Ed.-27
417
COTENANCY. A tenancy by several distinct titles
but by unity of possession, or any joint ownership
or common interest with its grantor. Shepard v.
Mt. Vernon Lumber Co., 192 Ala. 322, 68 So. 880,
881, 15 A.L.R. 23. The term is broad enough to
comprise both tenancy in common and joint ten-
ancy. Caldwell v. Farrier, Tex.Civ.App., 248 S.W.
425, 427.
COTERELLI. Anciently, a kind of peasantry who
were outlaws; robbers. Blount.
COTERELLUS. In feudal law. A cottager; a
servile tenant, who held in mere villenage; his
person, issue, and goods were disposable at the
lord's pleasure. A coterellus, therefore, occupied
a less favorable position than a cotarius (q. v.), for
the latter held by socage tenure. Cowell.
COTERIE. A fashionable association, or a knot
of persons forming a particular circle. The origin
of the term was purely commercial, signifying
an association, in which each member furnished
his part, and bore his share in the profit and loss.
Wharton.
COTESWOLD. In old records. A place where
there is no wood.
COTLAND. In old English law. Land held by a
cottager, whether in socage or villenage. Cowell;
Blount.
CO-TSETHLA. In old English law. The little seat
or mansion belonging to a small farm.
COTSETHLAND. The seat of a cottage with the
land belonging to it. Spelman.
COTSETUS. A cottager or cottage-holder who
held by servile tenure and was bound to do the
work of the lord. Cowell.
COTTAGE. In English law. A small dwelling-
house that has no land belonging to it. Shep.
Touch. 94; Emerton v. Selby, 2 Ld.Raym. 1015;
Scholes v. Hargreaves, 5 Term, 46; Hubbard v.
Hubbard, 15 Adol. & E. (N.S.) 240; Gibson v.
Brockway, 8 N.H. 470, 31 Am.Dec. 200. It has been
held that the term includes a two-family house, not
being limited to a structure for the use of only one
family. Jones v. Mulligan, N.J.Ch., 121 A. 608, 609.
COTTIER TENANCY. A species of tenancy in
Ireland, constituted by an agreement in writing,
and subject to the following terms: That the ten-
ement consists of a dwelling-house with not more
than half an acre of land; at a rental not exceed-
ing £5 a year; the tenancy to be for not more
than a month at a time; the landlord to keep the
house in good repair. Landlord and Tenant Act,
Ireland, 23 & 24 Viet. c. 154, § 81.
COTTOLENE. A registered trade-mark name for
cooking fat. Imperial Cotto Sales Co. v. N. K.
Fairbanks Co., 50 App.D.C. 250, 270 F. 686, 687.
have been removed at the gin or whether it is
lint cotton in the seed or in the bale. Freeman v.
State, 156 Ark. 592, 247 S.W. 51.
COTTON GIN. A term sometimes used as synony-
mous with ginhouse. State v. Rodgers, 168 N.C.
112, 83 S.E. 161, 162.
COTTON LINTERS. Called also "linters." An
inferior grade of cotton, obtained by reginning cot-
ton seed. Commercial Union Assur. Co., Limited,
of London, England, v. Creek Cotton Oil Co., 96
Oki. 189, 221 P. 499, 501.
COTTON MILL OF FACTORY. One which manu-
factures cotton from the raw state into a finished
product. Dumas v. State, 17 Ala.App. 492, 86 So.
162, 163.
COTTON NOTES. Receipts given for each bale
of cotton received on storage by a public ware-
house. Fourth Nat. Bank v. St. Louis Cotton
Compress Co., 11 Mo.App. 337.
COTTON SEASON. The season for buying and
selling cotton between September 1 and the follow-
ing May 1. Morris v. Hellums Co., 131 Ark. 585,
199 S.W. 927, 928.
COTUCA. Coat armor.
COTUCHANS. A term used in Domesday for
peasants, boors, husbandmen.
COUC1IANT. Lying down; squatting. Couchant
and levant (lying down and rising up) is a term
applied to animals trespassing on the land of one
other than their owner, for one night or longer.
3 Bl.Comm. 9.
COUCHER, or COURCHER. A factor who con-
tinues abroad for traffic, (37 Edw. III. c. 16;) also
the general book wherein any corporation, etc.,
register their acts, (3 & 4 Edw. VI. c. 10.)
COULISSE. The stockbrokers' curb market in
Paris.
COUNCIL. An assembly of persons for the pur-
pose of concerting measures of state or municipal
policy; hence called "councillors."
In American Law. The legislative body in the
government of cities or boroughs. An advisory
body selected to aid the executive; particularly in
the colonial period (and at present in some of the
United States) a body appointed to advise and as-
sist the governor in his executive or judicial ca-
pacities or both. Opinion of the Justices, 14 Mass.
470; Opinion of the Justices, 3 Pick., Mass., 517;
In re Adams, 4 Pick., Mass., 25; Answers of the
Justices, 70 Me. 570.
Common Council. In American law. The lower
or more numerous branch of the legislative assem-
bly of a city. In English law. The councillors
of the city of London. The parliament, also, was
anciently called the "common council of the
realm." Fleta, 2, 13.
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COUNCIL
Select Council. The name given, in some states,
to the upper house or branch of the council of a
city.
COUNCIL OF CONCILIATION. By the Act 30 &
31 Viet. c. 105, power is given for the crown to
grant licenses for the formation of councils of
conciliation and arbitration, consisting of a certain
number of masters and workmen in any trade or
employment, having power to hear and determine
all questions between masters and workmen which
may be submitted to them by both parties, arising
out of or with respect to the particular trade or
manufacture, and incapable of being otherwise
settled. They have power to apply to a justice to
enforce the performance of their award. The
members are elected by persons engaged in the
trade. Davis, Bldg.Soc. 232; Sweet.
COUNCIL OF JUDGES. Under the English judi-
cature act, 1873, § 75, an annual council of the
judges of the supreme court is to be held, for the
purpose of considering the operation of the new
practice, offices, etc., introduced by the act, and
of reporting to a secretary of state as to any al-
terations which they consider should be made in
the law for the administration of justice. An ex-
traordinary council may also be convened at any
time by the lord chancellor. Sweet.
COUNCIL OF THE BAR. A body composed of
members of the English bar which governs the
bar. It hears complaints against barristers and
reports its findings with recommendations to the
benchers of the Inn of Court of which the barrister
is a member, who alone can act. Leaming, Phila.
Lawy. in Lond. Courts 67.
COUNCIL OF THE NORTH. A court instituted
by Henry VIII. in 1537, to administer justice in
Yorkshire and the four other northern counties.
Under the presidency of Stratford, the court
showed great rigor, bordering, it is alleged, on
harshness. It was abolished by 16 Car. I., the
same act which abolished the Star Chamber.
Brown.
COUNSEL. 1. In practice. An advocate, coun-
sellor, or pleader. 3 Bl.Comm. 26; 1 Kent, Comm.
307. One who assists his client with advice, and
pleads for him in open court. One who has been
admitted as an attorney and counsellor at law.
Baker v. State, 9 Okl.Cr. 62, 130 P. 820, 821. See
Counsellor.
Counsellors who are associated with those reg-
ularly retained in a cause, either for the purpose of
advising as to the points of law involved, or pre-
paring the case on its legal side, or arguing ques-
tions of law to the court, or preparing or conduct-
ing the case on its appearance before an appellate
tribunal, are said to be "of counsel."
2. Knowledge. A grand jury is sworn to keep
secret "the commonwealth's counsel, their fel-
lows', and their own."
3. Advice given by one person to another in
regard to a proposed line of conduct, claim, or con-
tention. State v. Russell, 83 Wis. 330, 53 N.W. 441.
The words "counsel" and "advise" may be, and fre-
quently are, used in criminal law to describe the offense of
a person who, not actually doing the felonious act, by his
will contributed to it or procured it to be done. Omer v.
Corn., 95 Ky. 353, 25 S.W. 594.
Counsel's signature. This is required, in some
jurisdictions, to be affixed to pleadings, etc., as
affording the court a means of judging whether
they are interposed in good faith and upon legal
grounds. It has been held that the word "counsel"
in this connection denotes a person capable of
testifying, and that a certificate bearing only the
firm signatures of partnerships of attorneys is in-
sufficient. Benedict v. Seiberling, D.C., 17 F.2d
831, 838.
Junior counsel. The younger of the counsel em-
ployed on the same side of a case, or the one lower
in standing or rank, or who is intrusted with the
less important parts of the preparation or trial of
the cause.
COUNSELLOR. An advocate or barrister. A
member of the legal profession whose special func-
tion is to give counsel or advice as to the legal
aspects of judicial controversies, or their prepara-
tion and management, and to appear in court for
the conduct of trials, or the argument of causes,
or presentation of motions, or any other legal
business that takes him into the presence of the
court.
In some of the states, the two words "counsellor" and
"attorney" are used interchangeably to designate all
lawyers. In others, the latter term alone is used, "coun-
sellor" not being recognised as a technical name. In still
others, the two are associated together as the full legal
title of any person who has been admitted to practice in
the courts; while in a few they denote different grades,
it being prescribed that no one can become a counsellor
until he has been an attorney for a specified time and has
passed a second examination.
In the practice of the United States supreme court, the
term denotes an officer who is employed by a party in a
cause to conduct the same on its trial on his behalf. He
differs from an attorney at law.
In the supreme court of the United States, the two
degrees of attorney and counsel were at first kept separate,
and no person was permitted to practice in both capacities,
but the present practice is otherwise. Weeks, Attys. at
Law, 54. It is the duty of the counsel to draft or review
and correct the special pleadings, to manage the cause on
trial, and, during the whole course of the suit, to apply
established principles of law to the exigencies of the ease.
1 Kent, Comm. 307.
COUNT, v. In pleading. To declare; to recite;
to state a case; to narrate the facts constituting
a plaintiff's cause of action. In a special sense,
to set out the claim or count of the demandant in
a real action.
To plead orally; to plead or argue a case in
court; to recite or read in court; to recite a count
in court.
Count upon a statute. To make express refer-
ence to it, as  the words "against the form of the
statute" (or "by the force of the statute") "in
such case made and provided." Richardson v.
Fletcher, 74 Vt. 417, 52 A. 1064.
"Pleading the statute" is stating the facts which bring
the case within it, and "counting" on it is making express
reference to it by apt terms to show the source of right
relied on. Atlantic Coast Line R. Co. v. State, 73 Fla. 609,
74 So. 595, 599.
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COUNTER
COUNT, n. In pleading. The plaintiff's state-
ment of his cause of action. The different parts of
a declaration, each of which, if it stood alone,
would constitute a ground for action. Used also
to signify the several parts of an indictment,
each charging a distinct offense. Boren v. State,
23 Tex.App. 28, 4 S.W. 463; Bailey v. Mosher, C.
C.A.Neb., 63 F. 490, 11 C.C.A. 304; Ryan v. Riddle,
109 Mo.App. 115, 82 S.W. 1117.
"Count" and "charge" when used relative to allegations
in an indictment or information are synonymous. State v.
Thornton, 142 La. 797, 77 So. 634, 636; State v. Puckett,
39 N.M. 511, 50 P.2d 964, 965.
Count sur concessit solvere. A claim based upon
a promise to pay ,—a count in the mayor's court of
London. Under it the plaintiff can sue for any
liquidated demand, but not for money due under
a covenant. Particulars defining more precisely
the nature of the claim must be delivered with the
declaration. Odger, C. LI 1029.
Common counts. Certain general counts or
forms inserted in a declaration in an action to
recover a money debt, not founded on the circum-
stances of the individual case, but intended to
guard against a possible variance, and to enable
the plaintiff to take advantage of any ground of
liability which the proof may disclose, within the
general scope of the action. Nugent v. Teauchot,
67 Mich. 571, 35 N.W. 254.
In the action of assumpsit, these counts are as follows :
For goods sold and delivered, or bargained and sold; for
work done; for money lent; for money paid; for money
received to the use of the plaintiff ; for interest; or for
money due on an account stated.
General count. One stating in a general way
the plaintiff's claim. Wertheim v. Casualty Co., 72
Vt. 326, 47 A. 1071.
Money counts. A species of common counts, so
called from the subject-matter of them; embrac-
ing the indebitatus assumpsit count for money
lent and advanced, for money paid and expended,
and for money had and received, together with the
insimul computassent count, or count for money
due on an account stated. 1 Burrill, Pr. 132.
Omnibus count. A count which combines in
one all the money counts with one for goods sold
and delivered, work and labor, and an account
stated. Webber v. Tivill, 2 Saund. 122; Griffin v.
Murdock, 88 Me. 254, 34 A. 30.
Several counts. Where a plaintiff has several
distinct causes of action, he is allowed to pursue
them cumulatively in the same action, subject to
certain rules which the law prescribes. Wharton.
Special count. As opposed to the common
counts, in pleading, 'a special count is a statement
of the actual facts of the particular case, or a
count in which the plaintiff's claim is set forth
with all needed particularity. Wertheim v. Cas-
ualty Co., 72 Vt. 326, 47 A. 1071.
COUNT. (Fr. comte; from the Latin comes.)
An earl.
It gave way as a distinct title to the Saxon earl, but was
retained in countess, viscount, and as the basis of county.
Termes de la ley; 1 Bla.Comm. 398.
COUNT-OUT. In English parliamentary law.
Forty members form a house of commons; and,
though there be ever so many at the beginning of
a debate, yet, if during the course of it the house
should be deserted by the members, till reduced
below the number of forty, any one member may
have it adjourned upon its being counted; but a
debate may be continued when only one member
is left in the house, provided no one choose to
move an adjournment. Wharton.
The words "count and count-out" refer to the count of
the house of commons by the speaker. Forty members,
including the speaker, are required to constitute a quorum.
Each day after parliament is opened, the speaker counts
the house. If forty members are not present he waits till
four o'clock, and then counts the house again. If forty
members are not then present, he at once adjourns it to
the following meeting day. May, Parl.Prac. 219.
COUNTEE. In old English law. The most emi-
nent dignity of a subject before the Conquest. He
was prcefectus or prcepositus comitatus, and had
the charge and custody of the county; but this
authority is now vested in the sheriff. 9 Coke, 46.
COUNTENANCE. In old English law. Credit;
estimation. Wharton. Also, encouragement; aid-
ing and abetting. Cooper v. Johnson, 81 Mo. 487.
COUNTER, n. (Spelled, also, "Compter.") The
name of two prisons formerly standing in London,
but now demolished. They were the Poultry
Counter and Wood Street Counter. Cowell;
Whish.L.D.; Coke, 4th Inst. 248.
COUNTER, adj. Adverse; antagonistic; oppos-
ing or contradicting; contrary. Silliman v. Eddy,
8 How.Prac., N.Y., 122.
Counter-affidavit. An affidavit made and pre-
sented in contradiction or opposition to an affidavit
which is made the basis or support of a motion or
application.
Counter-bond. In old practice. A bond of in-
demnity. 2 Leon. 90.
Counterclaim. See that title.
Counter-deed. A secret writing, either before a
notary or under a private seal, which destroys,
invalidates, or alters a public one.
Counter-letter. A species of instrument of de-
feasance common in the civil law. It is executed
by a party who has taken a deed of property, ab-
solute on its face, but intended as security for a
loan of money, and by it he agrees to reconvey
the property on payment of a specified sum. The
two instruments, taken together, constitute what
is known in Louisiana as an "antichresis," (q. v.).
Karcher v. Karcher, 138 La. 288, 70 So. 228, 229;
Livingston v. Story, 11 Pet. 351, 9 L.Ed. 746.
Counter-mark. A sign put upon goods already
marked; also the several marks put upon goods
belonging to several persons, to show that they
must not be opened, but in the presence of all the
owners or their agents.
Counter-plea. See Plea.
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COUNTER
Counter-security. A security given to one who
has entered into a bond or become surety for
another; a countervailing bond of indemnity.
COUNTERCLAIM. A claim presented by a de-
fendant in opposition to or deduction from the
claim of the plaintiff. A species of set-off or re-
coupment introduced by the codes of civil pro-
cedure in many of the states, of a broad and lib-
eral character. Quoted in Wollan v. McKay, 24
Idaho, 691, 135 P. 832, 837.
It is an offensive as well as a defensive plea, which is
not necessarily confined to the justice of plaintiff's claim,
and it represents the right of the defendant to have the
claims of the parties counterbalanced in whole or in part,
with judgment to be entered for the excess, if any. Olsen
v. McMaken & Pentzien, 139 Neb. 506, 297 N.W. 830, 833.
Its sole requisites are that it must tend to defeat
or diminish plaintiff's demand, and that demands
must be reciprocal. Bond v. Farmers & Mer-
chants Nat. Bank, Los Angeles, 64 Cal.App.2d
842, 149 P.2d 722, 724; Dobbins v. Horsfall, 58 Cal.
App.2d 23, 136 P.2d 35, 38.
It is in effect a new suit in which the party named as
defendant under the bill is plaintiff and the party named as
plaintiff under the bill is defendant. Roberts Min. & Mill.
Co. v. Schrader, C.C.A.Nev., 95 F.2d 522, 524.
The term is broader in meaning than set-off or recoup-
ment, and includes them both. Williams v. Williams, 192
N.C. 405, 135 S.E. 39, 40; Fricke v. W. E. Fuetterer Bat-
tery & Supplies Co., 220 Mo.App. 623, 288 S.W. 1000, 1002;
Curtis-Warner Corporation v. Thirkettle, 99 N.J.Eq. 806,
134 A. 299, 302; Otto v. Lincoln Sa y . Bank of Brooklyn, 51
N.Y.S.2d 561, 563, 268 App.Div. 400; 'Etna Life Ins. Co. v.
Griffin, 200 N.C. 251, 156 S.E. 515, 516.
The counterclaim is a substitute for the cross-bill in
equity. McAnarney v. Lembeck, 97 N.J.Eq. 361, 127 A. 197,
198; Vidal v. South American Securities Co., C.C.A.N.Y.,
276 F. 855. It is but another name for a cross-petition, and
may be so styled, especially in actions prosecuted by equi-
table proceedings. Taylor v. Wilson, 182 Ky. 592, 206 S.W.
865, 866; Clark v. Duncanson, 79 OkI. 180, 192 P. 806, 809,
16 A.L.R. 450.
Under rule 30 of Federal rules in equity see Fed.Rules
Civ.Proc. rules 8, 13, 28 U.S.C.A., "counterclaim" means
any claim, not such as to constitute a set-off, which, in
equity, a defendant might assert against the plaintiff in
the same suit. Terry Steam Turbine Co. v. B. F. Sturte-
vant Co., D.C.Mass., 204 F. 103, 105.
A counterclaim may be any cause of action in favor of
defendants or some of them against plaintiffs or some of
them, a person whom a plaintiff represents or a plaintiff
and another person or persons alleged to be liable. New
York Civ.Prac.Act, § 266.
A "counterclaim" must be a cause of action, and seeks
affirmative relief, while a defense merely defeats the plain-
tiff's cause of action by a denial or confession and avoid-
ance, and does not admit of affirmative relief to the defend-
ant. Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 780; Secor
v. Siver, 165 Iowa, 673, 146 N.W. 845, 847.
COUNTEREXTENSION. In surgery, in connec-
tion with "Buck's extension" process, which is
some uniform, continuous force or pull applied to
the leg or foot below a break, to overcome the na-
tural contraction of the muscles of the thigh,
which have a strong tendency to pull the broken
ends together and cause them to slip by each oth-
er and overlap, especially when the break is ob-
lique across bone, "counterextension" denotes the
pull upwards holding the body against the exten-
sion downwards, effected by a splint appliance, on
the upper end of which is a ring fitting around
the thigh and against the patient's groin. Sweet
v. Douge, 145 Wash. 142, 259 P. 25.
COUNTERFEIT. In criminal law. To forge;
to copy or imitate, without authority or right, and
with a view to deceive or defraud, by passing the
copy or thing forged for that which is original
or genuine. Most commonly applied to the fraud-
ulent and criminal imitation of money. State v.
McKenzie, 42 Me. 392; U. S. v. Barrett, D.C.N.D.,
111 F. 369; DeRose v. People, 64 Colo. 332, 171
P. 359, L.R.A.1918C, 1193; Metropolitan Nat.
Bank v. National Surety Co., D.C.Minn., 48 F.
2d 611, 612.
COUNTERFEIT COIN. Coin not genuine, but re-
sembling or apparently intended to resemble or
pass for genuine coin, including genuine coin pre-
pared or altered so as to resemble or pass for
coin of a higher denomination. U. S. v. Hopkins,
D.C.N.C., 26 F. 443; U. S. v. Bogart, 24 Fed.Cas.
1185; U. S. v. Gellman, D.C.Minn., 44 F.Supp. 360,
363.
COUNTERFEITER. In criminal law. One who
unlawfully makes base coin in imitation of the
true metal, or forges false currency, or any in-
strument of writing, bearing a likeness and simili-
tude to that which is lawful and genuine, with an
intention of deceiving and imposing upon man-
kind. Thirman v. Matthews, 1 Stew., Ala., 384.
COUNTER-FESANCE. The act of forging.
COUNTER LETTER. An agreement to reconvey
where property has been passed by absolute deed
with the intention that it shall serve as security
only. Standard Oil Co. of Louisiana v. Futral,
204 La. 215, 15 So.2d 65, 73.
COUNTERMAND. A change or revocation of or-
ders, authority, or instructions previously issued.
It may be either express or implied; the former
where the order or instruction already given is
explicitly annulled or recalled; the latter where
the party's conduct is incompatible with the fur-
ther continuance of the order or instruction, as
where a new order is given inconsistent with the
former order.
COUNTERPART. In conveyancing. The cor-
responding part of an instrument; a duplicate or
copy. Where an instrument of conveyance, as a
lease, is executed in parts, that is, by having sev-
eral copies or duplicates made and interchange-
ably executed, that which is executed by the gran-
tor is usually called the "original," and the rest
are "counterparts"; although, where all the par-
ties execute every part, this renders them all orig-
inals. 2 Bl. Comm. 296; Shep. Touch. 50. Roose-
velt v. Smith, 17 Misc.Rep. 323, 40 N.Y.S. 381.
See Duplicate.
In granting lots subject to a ground-rent reserved to the
grantor, both parties execute the deeds, of which there
are two copies; although both are original, one of them
is sometimes called the counterpart. See- 12 Vin.Abr. 104
Dane, Abr.Index; 7 Com.Dig. 443; Merlin, Rip. Double
Ecrit.
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COUNTY
COUNTERPART WRIT. A copy of the original
writ, authorized to be issued to another county
when the court has jurisdiction of the cause by
reason of the fact that some of the defendants
are residents- of the county or found therein.
White v. Lea, 9 Lea, Tenn., 450.
COUNTER-ROLLS. In English law. The rolls
which sheriffs have with the coroners, containing
particulars of their proceedings, as well of ap-
peals as of inquests, etc. 3 Edw. I. c. 10.
COUNTERSIGN. As a noun, the signature of a
secretary or other subordinate officer to any writ-
ing signed by the principal or superior to vouch
for the authenticity of it. Fifth Ave. Bank v.
Railroad Co., 137 N.Y. 231, 33 N.E. 378, 19 L.R.A.
331; Gurnee v. Chicago, 40 Ill. 167.
As a verb, to sign in addition to the signature
of another in order to attest the authenticity.
Winsor v. Hunt, 29 Ariz. 504, 243 P. 407, 411; Hen-
ning v. American Ins. Co., 108 Kan. 194, 194 P.
647, 648; Waldo Bros. Co. v. Downing, 131 Me. 410,
163 A. 787, 789.
COUNTERVAIL. To counterbalance; to avail
against with equal force or virtue; to compensate
for, or serve as an equivalent of or substitute for.
COUNTERVAIL LIVERY. At common law, a re-
lease was a form of transfer of real estate where
some right to it existed in one person but the ac-
tual possession was in another; and the posses-
sion in such case was said to "countervail livery,"
that is, it supplied the place of and rendered
unnecessary the open and notorious delivery of
possession required in other cases. Miller V.
Emans, 19 N.Y. 387.
COUNTERVAILING EQUITY. See Equity.
COUNTEUR. In the time of Edward I, a plead-
er; also called a Nurrator, and Serjeant-Counteur.
See Countors.
COUNTEZ, L. Fr. Count, or reckon. In old prac-
tice. A direction formerly given by the clerk of
a court to the crier, after a jury was sworn, to
number them; and which Blackstone says was
given in his time, in good English, "count these."
4 Bl. Comm. 340, note (u.).
COUNTING UPON A STATUTE, See Count
Upon a Statute.
COUNTORS. Advocates, or serjeants at law,
whom a man retains to defend his cause and
speak for him in court, for their fees. 1 Inst. 17.
COUNTRY. The portion of the earth's surface
occupied by an independent nation or people, or
the inhabitants of such territory.
In its primary meaning "country" signifies "place;"
and, in a larger sense, the territory or dominions occupied
by a community; or even waste and unpeopled sections or
regions of the earth. But its metaphorical meaning is no
less definite and well understood; and in common par-
lance, in historical and geographical writings, in diplo-
macy, legislation, treaties, and international codes, the
word is employed to denote the population, the nation, the
state, or the government, having possession and dominion
over a territory. Stairs v. Peaslee, 18 How. 521, 15 L.Ed.
474; U. S. v. Recorder, 1 Blatchf. 218, 225, 5 N.Y.Leg.Obs.
286, Fed.Cas.No.16,129.
The word "country" as used in treaties made by the
United States government, in so far as it applies to the
United States, means the states of such country. Pagano
v. Cerri, 93 Ohio St. 345, 112 N.E. 1037, 1039, L.R.A.1917A,
486.
In pleading and practice. The inhabitants of
a district from which a jury is to be summoned;
pais; a jury. 3 Bl.Comm. 349; 4 Bl. Comm. 349;
Steph. Pl. 73, 78, 230.
COUNTRY WHENCE HE CAME. Within stat-
ute providing for deportation of aliens means
country of alien's nativity, where domicile has
not been acquired elsewhere. Immigration Act
1924, § 13, 8 U.S.C.A. § 213; 8 U.S.C.A. § 156.
Schenck ex rel. Capodilupo v. Ward, C.C.A.Mass.,
80 F.2d 422, 426.
Term means the country territorially rather than gov-
ernmentally from which the alien came. Immigration Act
1917, § 20, 8 U.S.C.A. § 156. Moraitis v. Delany, D.C.Md.,
46 F.Supp. 425, 430.
But deportation to "country whence alien came"
would be complied with if the alien was returned
to political dominion in exile and control of coun-
try from whence he came. Delany v. Moraitis,
C.C.A.Md., 136 F.2d 129, 130, 131, 132, 133.
COUNTY. One of the civil divisions of a country
for judicial and political purposes. 1 Bla. Comm.
113.
Etymologically, it denotes that portion of the country
under the immediate government of a count or earl. 1 Bla.
Comm. 116.
One of the principal subdivisions of the kingdom of
England and of most of the states of the American Union,
denoting a distinct portion of territory organized by itself
for political and judicial purposes. In modern use, the
word may denote either the territory marked off to form a
county, or the citizens resident within such territory, taken
collectively and considered as invested with political rights,
or the county regarded as a municipal corporation possess-
ing subordinate governmental powers, or an organized
jural society invested with specific rights and duties.
Eagle v. Beard, 33 Ark. 501; Wooster v. Plymouth, 62 N.H.
208; In re Becker, 179 App. Div. 789, 167 N.Y.S. 118, 119;
Greb v. King County, 187 Wash. 587, 60 P.2d 690, 692.
In the English law, this word signifies the same as shire,
-county being derived from the French, and shire from
the Saxon. Both these words signify a circuit or portion
of the realm into which the whole land is divided, for the
better government thereof and the more easy administra-
tion of justice. There is no part of England that is not
within some county; and the shirereeve (sheriff) was the
governor of the province, under the comes, earl, or count.
Counties are political subdivisions of the state, created to
aid in the administration of state law for the purpose of
local self-government. Hunt v. Mohave County, 18 Ariz.
480, 162 P. 600, 602; Board of Com'rs of Osborne County
v. City of Osborne, 104 Kan. 671, 180 P. 233, 234; Divide
County v. Baird, 55 N.D. 45, 212 N.W. 236, 243, 51 A.L.R.
296; Dolezal v. Bostick, 41 Okl. 743, 139 P. 964, 968; Mid-
dlesex County v. City of Waltham, 278 Mass. 514, 180 N.E.
318, 319, and hence not "municipal corporations." Housing
Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 14
So.2d 527, 535.
Counties are held in some jurisdictions to be municipal
corporations. Mosier v. Cowan, 295 Mich. 27, 294 N.W. 85,
86; Pacific Fruit & Produce Co. v. Oregon Liquor Control.
Commission, D.C.Or., 41 F.Supp. 175, 179; and are some-
times said to be involuntary municipal corporations. Per-
kins v. Board of Com'rs of Cook County, 271 Ill. 449, 111
N.E. 580, 584, Ann.Cas.1917A, 27. Other cases, seeking to
distinguish between the two, say that counties are agencies
or political subdivisions of the state for governmental pur-
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poses, and not, like municipal corporations, incorporations
of the inhabitants of specified regions for purposes of local
government. Dillwood v. Riecks, 42 Cal.App. 602, 184 P.
35, 37; Bexar County v. Linden, 110 Tex. 339, 220 S.W.
761. Counties are also said to be merely quasi corpora-
tions. Breathitt County v. Hagins, 183 Ky. 294, 207 S. W.
713, 714; MacKenzie v. Douglas County, 91 Or. 375, 178
P. 350, 352; Jefferson County ex rel. Grauman v. Jefferson
County Fiscal Court, 274 Ky. 91, 118 S.W.2d 181, 184.
"Vicinage," in its primary and literary meaning, denotes
a neighborhood or vicinity; a "county," on the other
hand, is a definitely designated territory. Commonwealth
v. Collins, 268 Pa. 295, 110 A. 738, 739.
Body of the county. The county at large, as
distinguished from any particular place within it;
a county considered as a territorial whole. Fluke
v. State, 27 Okl.Cr. 234, 226 P. 118, 120.
County affairs. Those relating to the county
in its organic and corporate capacity and included
within its governmental or corporate powers.
Scarbrough v. Wooten, 23 N.M. 616, 170 P. 743,
744. Such as affect the people of the county in
question. Bradford v. Cole, 95 Okl. 35, 217 P.
470, 471.
County attorney. The public prosecutor. Kyt-
ka v. Weber County, 48 Utah, 421, 160 P. 111, 113.
A constitutional officer, acting under oath, vested with
authority, and it is his duty to inquire into alleged viola-
tions of law, to institute criminal proceedings, and to rep-
resent the state in matters and proceedings in his county,
he signs all informations, and may make application for
leave to file information before examination, commitment,
or admission to bail. State ex rel. Juhl v. District Court
of First Judicial Dist. in and for Jefferson County, Mont.,
107 Mont. 309, 84 P.2d 979, 981, 120 A.L.R. 353.
County board of equalization. A body created
for the purpose of equalizing values of property
subject to taxation. , Overland Co. v. Utter, 44
Idaho, 385, 257 P. 480, 482.
County board of supervisors. Is not the coun-
ty, but a body of town and city officers acting
for and on behalf of county in such matters as
have been turned over to them by law. Cort v.
Smith, 249 App.Div. 1, 291 N.Y.S. 54, 60.
County bonds. Broadly, any bonds issued by
county officials to be paid for by a levy on a spe-
cial taxing district, whether or not coextensive
with the county. Forrey v. Board of Com'rs of
Madison County, 189 Ind. 257, 126 N.E. 673.
County bridge. A bridge of the larger class,
erected by the county, and which the county is li-
able to keep in repair. Boone County v. Mutchler,
137 Ind. 140, 36 N.E. 534.
County business. All business pertaining to
the county as a corporate entity. City of Astoria
v. Cornelius, 119 Or. 264, 240 P. 233, 235. All busi-
ness of the county, and any other business of
such county connected with or interrelated with
the business of any other county properly within
the jurisdiction of the county commissioners'
court. Glenn v. Dallas County Bois d'Arc Island
Levee Dist., Tex.Civ.App., 275 S.W. 137, 145.
County commissioners. Officers of a county,
charged with a variety of administrative and ex-
ecutive duties, but principally with the manage-
ment of the financial affairs of the county, its po-
lice regulations, and its corporate business.
Sometimes the local laws give them limited ju-
dicial powers. In some states they are called
"supervisors." Corn. v. Krickbaum, 199 Pa. 351,
49 A. 68.
In Georgia, the term is used interchangeably with "com-
missioners of roads and revenue." Morris v. Smith, 153
Ga. 438(2), 112 S.E. 468; Rhodes v. Jernigan, 155 Ga. 523,
117 S.E. 432, 434.
County corporate. A city or town, with more
or less territory annexed, having the privilege to
be a county of itself, and not to be comprised in
any other county; such as London, York, Bris-
tol, Norwich, and other cities in England. 1 Bl.
Comm. 120. See State v. Finn, 4 Mo.App. 347.
They differ in no material points from other
counties.
County court. A court of high antiquity in
England, incident to the jurisdiction of the sher-
iff. It is not a court of record, but may hold pleas
of debt or damages, under the value of forty shill-
ings. The freeholders of the county (anciently
termed the "suitors" of the court) are the real
judges in this court, and the sheriff is the minis-
terial officer. See 3 Bl. Comm. 35, 36; 3 Steph.
Comm. 395. But in modern English law the name
is appropriated to a system of tribunals estab-
lished by the statute 9 & 10 Vict. c. 95, having a
limited jurisdiction, principally for the recovery
of small debts. It is also the name of certain
tribunals of limited jurisdiction in the county of
Middlesex, established under the statute 22 Geo.
II. c. 33. In American law. The name is used in
many of the states to designate the ordinary
courts of record having jurisdiction for trials at
nisi prius. Their powers generally comprise or-
dinary civil jurisdiction, also the charge and care
of persons and estates coming within legal guar-
dianship, a limited criminal jurisdiction, appel-
late jurisdiction over justices of the peace, etc.
County farm bureaus. Governmental agencies
intrusted with the duty of disseminating among
farmers scientific knowledge of an educational
nature for the improvement of agriculture. State
v. Miller, 104 Neb. 838, 178 N.W. 846, 848.
County funds. This term may include township
funds, the legal title of which is in the county,
which holds them for disbursement in accordance
for the purpose for which they are created. Fi-
delity & Deposit Co. of Maryland v. Wilkinson
County, 109 Miss. 879, 69 So. 865, 868. See, also,
State v. McGraw, 74 Mont. 152, 240 P. 812, 817.
Compare Board of Education v. Wake County, 167
N.C. 114, 83 S.E. 257, 258.
County general fund. A fund raised to meet
the expenses incident to county government.
County Board of Education v. Austin, 169 Ark.
436, 276 S.W. 2, 5.
County jail. A place of incarceration for the
punishment of minor offenses and the custody of
transient prisoners, where the ignominy of con-
finemeat is devoid of the infamous character
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COUNTY
which an imprisonment in the state jail or peni-
tentiary carries with it. U. S. v. Greenwald, D.C.
Cal., 64 F. 8.
County line. This term, when used in a stat-
ute providing that the trial for an offense com-
mitted on a county line may be in either county
divided by such line, is not to be given the geo-
metrical definition of a "line" as having neither
breadth nor thickness, but includes all of a fenced
public highway dividing two counties, so that a
prosecution for robbery committed upon the high-
way may be maintained in either county, regard-
less of the side of the center line of the highway
upon which the offense was committed. Stone
v. People, 71 Colo. 162, 204 P. 897, 898.
County line bridge. A bridge over a stream
constituting the boundary line between two coun-
ties, one end of which bridge is in one county and
the other end in another county. Newberry v.
Hall County, 52 Ga.App. 472, 183 S.E. 664, 665.
County officers. Those whose general author-
ity and jurisdiction are confined within the limits
of the county in which they are appointed, who
are appointed in and for a particular county, and
whose duties apply only to that county, and
through whom the county performs its usual po-
litical functions. State v. Burns, 38 Fla. 367, 21
So. 290; State v. Glenn, 7 Heisk., Tenn., 473; In
re Carpenter, 7 Barb., N.Y., 34; Hamilton v. Mon-
roe, Tex.Civ.App., 287 S.W. 304, 306; State ex rel.
Osborn v. Eddington, 208 Ind. 160, 195 N.E. 92.
Public officers who fill a position usually provided for in
the organization of counties and county governments, and
are selected by the county to represent it continuously and
as part of the regular and permanent administration of
public power in carrying out certain acts with the per-
formance of which it is charged in behalf of the public.
Coulter v. Pool, 187 Cal. 181, 201 P. 120, 123.
County palatine. A term bestowed upon cer-
tain counties in England, the lords of which in
former times enjoyed especial privileges. They
might pardon treasons, murders, and felonies. All
writs and indictments ran in their names, as in
other counties in the king's; and all offenses were
said to be done against their peace, and not, as in
other places, contra pacem domini regis. But
these privileges have in modern times nearly dis-
appeared. 1 Holdsw. Hist. E. L. 49; 4 Inst. 205.
County powers. Such only as are expressly
provided by law or which are necessarily implied
from those expressed. Hersey v. Nelson, 47 Mont.
132, 131 P. 30, 32, Ann.Cas.1914C, 963.
County property. That which a county is au-
thorized to acquire, hold, and sell. State v.
Brown, 73 Mont. 371, 236 P. 548, 549; State v. Po-
land, 61 Mont. 600, 203 P. 352, 353.
County purposes. Those exercised by the coun-
ty acting as a municipal corporation. Conrad v.
Shearer, 197 Iowa 1078, 198 N.W. 633, 634.
As regards the rate of taxation, all purposes for which
county taxation may be levied. Test whether a tax is
levied for county purposes is whether it is for strictly
county uses, for which county or its inhabitants alone
would benefit, or is it for a purpose in which entire state
is concerned and will profit. Public Utilities Commission
v. Manley, 99 Colo. 153, 60 P.2d 913, 917. Seaboard Air
Line Ry. Co. v. Wright, 34 Ga.App. 88, 128 S.E. 234,
235. With reference to budgets, all legitimate components
of a county budget. Garrison v. Jersey City, 92 N.J.Law,
624, 105 A. 460, 462. The term has been held to apply only
to the constantly recurring expenditures, such as salaries
of county officers. Obenchain v. Daggett, 68 Or. 374, 137
P. 212, 214. But it has also been held not to be equiva-
lent to "current expenses." Seaboard Air-Line Ry. Co. v.
Wright, 157 Ga. 722, 122 S.E. 35, 36.
County rate. In English law. An imposition
levied on the occupiers of lands, and applied to
many miscellaneous purposes, among which the
most important are those of defraying the ex-
penses connected with prisons, reimbursing to
private parties the costs they have incurred in
prosecuting public offenders, and defraying the
expenses of the county police. 15 & 16 Vict. c. 81.
County road. One which lies wholly within one
county, and which is thereby distinguished from
a state road, which is a road lying in two or more
counties. State v. Wood County, 17 Ohio, 186.
County-seat. A county-seat or county-town is
the chief town of a county, where the county
buildings and courts are located and the county
business transacted. Williams v. Reutzel, 60 Ark.
155, 29 S.W. 374; In re Allison, 13 Colo. 525, 22
P. 820, 10 L.R.A. 790; McGregor v. Cain, 177 Ark.
474, 7 S.W.2d 13, 14.
The county town as the seat of government. Dunne v.
Rock Island County, 283 Iii. 628, 119 N.E. 591, 595. The
place where the courthouse is situated, and the district and
county courts are held. Turner v. Tucker, 113 Tex. 434,
258 S.W. 149, 150.
County sessions. In England, the court of gen-
eral quarter sessions of the peace held in every
county once in every quarter of a year. Mozley
& Whitley.
County site. The seat of government of the
county. Board of Revenue of Covington County
v. Merrill, 193 Ala. 521, 68 So. 971, 977. The court-
house site. Board of Revenue of Jefferson County
v. Huey, 195 Ala. 83, 70 So. 744, 746.
County tax. Tax exclusively for county pur-
poses, in which state has no sovereign interest or
responsibility, and which has no connection with
duties of county in its relation to state. Amos v.
Mathews, 99 Fla. 1, 126 So. 308, 323.
County-town. The county-seat; the town in
which the seat of government of the county is lo-
cated. State v. Cates, 105 Tenn. 441, 58 S.W. 649.
County treasury. Not the physical place of
deposit, but the funds deposited to the credit of
the county. State v. Kurtz, 110 Ohio St. 332, 144
N.E. 120, 123.
County warrant. An order or warrant drawn
by some duly authorized officer of the county, di-
rected to the county treasurer and directing him
to pay out of the funds of the county a designated
sum of money to a named individual, or to his or-
der or to bearer. Savage v. Mathews, 98 Ala.
535, 13 So. 328; Crawford v. Noble County, 8 Okl.
450, 58 P. 616; Quinn v. Reed, 130 Ark. 116, 197
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S.W. 15, 16; Tyler v. Shelby County, Tex., C.C.A.
Tex., 47 F.2d 103, 105.
Foreign county. Any county having a judicial
and municipal organization separate from that of
the county where matters arising in the former
county are called in question, though both may lie
within the same state or country.
COUPLED WITH AN INTEREST. This phrase,
in the law of agency, has reference to a writing
creating, •conveying to, or vesting in the agent an
interest in the estate or property which is the
subject of the agency, as distinguished from the
proceeds or profits resulting from the exercise of
the agency. George H. Rucker & Co. v. Glennan,
130 Va. 511, 107 S.E. 725, 728.
COUPONS. Interest and dividend certificates;
also those parts of a commercial instrument which
are to be cut, and which are evidence of some-
thing connected with the contract mentioned in
the instrument. They are generally attached to
certificates of loan, where the interest is payable
at particular periods, and, when the interest is
paid, they are cut off and delivered to the payer.
Wharton. Toon v. Wapinitia Irr. Co., 117 Or. 374,
243 P. 554, 556.
In England, they are known as warrants or div-
idend warrants, and the securities to which they
belong, debentures; 13 C. B. 372.
Coupons are written contracts for the payment of a
d3finite sum of money on a given day, and being drawn
and executed in a form and mode for the purpose, that
they may be separated from the bonds and other instru-
ments to which they are usually attached, it is held that
they are negotiable and that a suit may be maintained on
them without the necessity of producing the bonds. Each
matured coupon upon a negotiable bond is a separable
promise, distinct from the promises to pay the bonds or the
other coupons, and gives rise to a separate cause of action.
Aurora v. West, 7 Wall. 88, 19 L.Ed. 42. Haven v. Depot
Co., 109 Mass. 88; Thompson v. Perrine, 106 U.S. 589, 1
S.Ct. 564, 27 L.Ed. 298.
Coupon bonds. Bonds to which are attached
coupons for the several successive installments of
interest to maturity. Benwell v. Newark, 55 N.
J.Eq. 260, 36 A. 668; Tennessee Bond Cases, 114
U.S. 663, 5 S.Ct. 974, 29 L.Ed. 281.
Coupon notes. Promissory notes with coupons
attached, the coupons being notes for interest
written at the bottom of the principal note, and
designed to be cut off severally and presented
for payment as they mature. Williams v. Moody,
95 Ga. 8, 22 S.E. 30.
COUR DE CASSATION. The supreme judicial
tribunal of France, having appellate jurisdiction
only. For an account of its composition and pow-
ers, see Jones, French Bar, 22; Guyot. Repert.
Univ.
COURSE. In surveying, the direction of a line
with reference to a meridian.
COURSE OF BUSINESS. What is usually done
in the management of trade or business. Idom v.
Weeks & Russell, 135 Miss. 65, 99 So. 761, 764;
In re Malschick, D.C.Pa., 217 F. 492, 494.
In Workmen's Compensation Acts, the usual course of
business of the employer covers the normal operations
which form part of the ordinary business carried on, and
not Including incidental and occasional operations having
for their purpose the preservation of the premises or the
appliances used in the business. Walker v. Industrial
Accident Commission, 177 Cal. 737, 171 P. 954, 955, L.R.A.
1918F, 212.
Commercial paper is said to be transferred, or sales
alleged to have been fraudulent may be shown to have
been made, "in the course of business," or "in the usual
and ordinary course of business," when the circumstances
of the transaction are such as usually and ordinarily attend
dealings of the same kind and do not exhibit any signs of
haste, secrecy, or fraudulent intention. Walbrun v. Bab-
bitt, 16 Wall. 581, 21 L.Ed. 489; Brooklyn, etc., R. Co. v.
National Bank, 102 U.S. 14, 26 L.Ed. 61.
COURSE OF EMPLOYMENT. Those words as
applied to compensation for injuries within the
purview of Workmen's Compensation Acts, refer
to the time, place, and circumstances under which
the accident takes place. Fogg's Case, 125 Me.
168, 132 A. 129, 130; Brady v. Oregon Lumber Co.,
117 Or. 188, 243 P. 96, 99, 45 A.L.R. 812; Walker
v. Hyde, 43 Idaho, 625, 253 P. 1104, 1105; Wilson
v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d
907, 910. A workman is in course of employ-
ment when, within time covered by employment,
he is doing something which he might reasonably
do while so employed at proper place. Dambold
v. Industrial Commission, 323 Ill. 377, 154 N.E.
128, 129; In re Employers' Liability Assur. Cor-
poration, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A,
306; Conrad v. Cook-Lewis Foundry Co., 198 N.C.
723, 153 S.E. 266, 269; In re McCrary, 109 Neb.
796, 192 N.W. 237, 239.
In order that an injury may arise out of and in the
course of employment, it must be received while the work-
man is doing the duty he is employed to perform and also
as a natural incident of the work flowing therefrom as a
natural consequence and directly connected therewith. Di
Salvio v. Menihan Co., 225 N.Y. 123, 121 N.E. 766, 767.
"In course of employment," as used in Workmen's Com-
pensation Act, means in service of master, and is not syn-
onymous with "during the period covered by his actual.
employment." An injury, to be within course of employ-
ment, must occur during hours of employment, which
includes hours of leisure set apart in working hours for
rest, recreation, or refreshment, but not time when
employee is off premises, not engaged in employer's busi-
ness, or at home preparing for work, or coming to or
leaving work.  Shofiler v. Lehigh Valley Coal Co., 290 Pa.
480, 139 A. 192, 193. An employee, even after closing time,
is in the "course of employment" until a suitable oppor-
tunity has been given for him to leave the place of work.
Field v. Charmette Knitted Fabric Co., 245 N.Y. 139, 156
N.E. 642, 643; Munn v. Industrial Board, 274 Ill. 70, 113
N.E. 110, 112.
The expression "in the course of his employment," in
the rule that a master is liable for the torts of his servant
done in the course of his employment, means while
engaged in the service of the master, while engaged gen-
erally in the master's work, as distinguished from acts
done when the servant steps outside of his employment to
do an act for himself, not connected with his master's
business. Sina v. Carlson, 120 Minn. 283, 139 N.W. 601, 602.
And see Birmingham Ledger Co. v. Buchanan, 10 Ala.App.
527, 65 So. 667, 670.
See, also, Arising Out of and in the Course of
Employment.
COURSE OF RIVER. The course of a river is a
line parallel with its banks; the term is not syn-
onymous with the "current" of the river. Attor-
ney General v. Railroad Co., 9 N.J.Eq. 550.
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COURT
COURSE OF THE VOYAGE. By this term is un-
derstood the regular and customary track, if such
there be, which a ship takes in going from one
port to another, and the shortest way. Marsh.
Ins. 185; Phi11. Ins. 981.
COURSE OF TRADE. What is customarily or
ordinarily done in the management of trade or
business.
COURSE OF VEIN. In mining, the "course of
the vein" appearing on the surface is the course
of its apex, which is generally inclined and un-
dulated and departs more or less materially from
the strike. Stewart Mining Co. v. Bourne, C.C.A.
Idaho, 218 F. 327, 329.
COURSE OF VESSEL. In navigation, the
"course" of a vessel is her apparent course, and
not her heading at any given moment. The East-
ern Glade, C.C.A.N.Y., 101 F.2d A, 6. It is her ac-
tual course. Liverpool, Brazil & River Plate
Steam Na y . Co. v. U. S., D.C.N.Y., 12 F.2d 128,
129.
COURT. A space which is uncovered, but which
may be partly or wholly inclosed by buildings or
walls. Smith v. Martin, 95 Okl. 271, 219 P. 312,
313. When used in connection with a street, in-
dicates a short street, blind alley, or open space
like a short street inclosed by dwellings or other
buildings facing thereon. City of Miami v. Saun-
ders, 151 Fla. 699, 10 So.2d 326, 329.
Legislation
A legislative assembly. Parliament is called
In the old books a court of the king, nobility, and
commons assembled. Finch, Law, b. 4, c. 1, p.
233; Fleta, lib. 2, c. 2.
The application of the term—which originally denoted
the place of assembling—to denote the assemblage, resem-
bles the similar application of the Latin term curia, and
is readily explained by the fact that the earlier courts were
merely assemblages, in the court-yard of the baron or of
the king himself, of those who were qualified and whose
duty it was so to appear at stated times or upon summons.
Traces of this usage and constitution of courts still remain
in the courts baron, the various courts for the trial of
Impeachments in England and the United States, and in
the control exercised by the parliament of England and
the legislatures of the various states of the United States
over the organization of courts of justice, as constituted in
modern times. This meaning of the word has also been
retained in the titles of some deliberative bodies, such as
the "general court" of Massachusetts, i. e., the legislature.
International Law
The person and suite of the sovereign; the place
where the sovereign sojourns with his regal re-
tinue, wherever that may be. The English gov-
ernment is spoken of in diplomacy as the court of
St. James, because the palace of St. James is the
official palace.
Practice
An organ of the government, belonging to the
judicial department, whose function is the appli-
cation of the laws to controversies brought before
it and the public administration of justice. White
County v. Gwin, 136 Ind. 562, 36 N.E. 237, 22 L.
R.A. 402; Bradley v. Town of Bloomfield, 85 N.J.
Law, 506, 89 A. 1009.
The presence of a sufficient number of the mem-
bers of such a body regularly convened in an au-
thorized place at an appointed time, engaged in
the full and regular performance of its functions.
Brumley v. State, 20 Ark. 77; Wightman v. Kars-
ner, 20 Ala. 446.
A body in the government to which the admin-
istration of justice is delegated. A body organiz-
ed to administer justice, and including both judge
and jury. Houston Belt & Terminal Ry. Co. v.
Lynch, Tex.Com.App., 221 S.W. 959, 960; People
ex rel. Thaw v. Grifenhagen, Sup., 154 N.Y.S. 965,
970; Peterson v. Fargo-Moorhead St. Ry. Co., 37
N.D. 440, 164 N.W. 42, 49.
A tribunal officially assembled under authority of law at
the appropriate time and place, for the administration of
justice. In re Carter's Estate, 254 Pa. 518, 99 A. 58.
An agency of the sovereign created by it directly or
indirectly under its authority, consisting of one or more
officers, established and maintained for the purpose of
hearing and determining issues of law and fact regarding
legal rights and alleged violations thereof, and of applying
the sanctions of the law, authorized to exercise its powers
in due course of law at times and places previously deter-
mined by lawful authority. Isbill v. Stovall, Tex.Civ.App.,
92 S.W.2d 1067, 1070.
An incorporeal, political being, composed of one or more
judges, who sit at fixed times and places, attended by
proper officers, pursuant to lawful authority, for the
administration of justice. State v. Le Blond, 108 Ohio St.
126, 140 N.E. 510, 512. An organized body with defined
powers, meeting at certain times and places for the hear-
ing and decision of causes and other matters brought
before it, and aided in this, its proper business, by Its
proper officers, viz., attorneys and counsel to present and
manage the business, clerks to record and attest its acts
and decisions, and ministerial officers to execute its com-
mands, and secure due order in its proceedings. Ex parte
Gardner, 22 Nev. 280, 39 P. 570; Hertzen v. Hertzen, 104
Or. 423, 208 P. 580, 582.
It is a passive forum for adjusting disputes and has no
power to investigate facts or to initiate proceedings. Sale
v. Railroad Commission, 15 Ca1.2d 612, 104 P.2d 38, 41.
The place where justice is judicially administer-
ed. Co. Litt. 58a; 3 Bl. Comm. 23. Railroad Co.
v. Harden, 113 Ga. 456, 38 S.E. 950; Croft v. Croft,
119 N.J.Eq. 468, 182 A. 853.
The judge, or the body of judges, presiding over
a court.
The words "court" and "judge," or "judges," are fre-
quently used in statutes as synonymous. When used with
reference to orders made by the court or judges, they are
to be so understood. State v. Caywood, 96 Iowa, 367, 65
N.W. 385; Sale v. Railroad Commission, 15 Ca1.2d 612, 104
P.2d 38, 41.
The word "court" is often employed in statutes other-
wise than in its strict technical sense, and is applied to
various tribunals not judicial in their character, State v.
Howat, 107 Kan. 423, 191 P. 585, 589; for example, in New
Jersey, the "court of pardons"; In re Court of Pardons, 97
N.J.Eq. 555, 129 A. 624, 625.
Classification
Courts may be classified and divided according
to several methods, the following being the more
usual:
Courts of record and courts not of record. The
former being those whose acts and judicial pro-
ceedings are enrolled, or recorded, for a perpetual
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COURT
memory and testimony, and which have power to
fine or imprison for contempt. Error lies to their
judgments, and they generally possess a seal.
Courts not of record are those of inferior dignity,
which have no power to fine or imprison, and in
which the proceedings are not enrolled or record-
ed. 3 Bl. Comm. 24; 3 Steph. Comm. 383; The
Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte
Thistleton, 52 Cal. 225; Erwin v. U. S., D.C.Ga.,
37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96
Ohio St. 205, 117 N.E. 229, 231.
A "court of record" is a judicial tribunal having attri-
butes and exercising functions independently of the person
of the magistrate designated generally to hold it, and
proceeding according to the course of common law, its acts
and proceedings being enrolled for a perpetual memorial.
Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex
parte Gladhill, 8 Metc., Mass., 171, per Shaw, C. J. See,
also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689.
Courts may be at the same time of record for some pur-
poses and not of record for others. Lester v. Redmond, 6
Hill, N.Y., 590; Ex parte Gladhill, 8 Metc., Mass., 168.
Superior and inferior courts. The former being
courts of general original jurisdiction in the first
instance, and which exercise a control or super-
vision over a system of lower courts, either by ap-
peal, error, or certiorari; the latter being courts
of small or restricted jurisdiction, and subject to
the review or correction of higher courts. Some-
times the former term is used to denote a par-
ticular group or system of courts of high powers,
and all others are called "inferior courts."
To constitute a court a superior court as to any class of
actions, within the common-law meaning of that term, its
jurisdiction of such actions must be unconditional, so that
the only thing requisite to enable the court to take cog-
nizance of them is the acquisition of jurisdiction of the
persons of the parties. Simons v. De Bare, 4 Bosw., N.Y.,
547.
An inferior court is a court whose judgments or decrees
can be reviewed, on appeal or writ of error, by a higher
tribunal, whether that tribunal be the circuit or supreme
court. Nugent v. State, 18 Ala. 521.
Civil and criminal courts. The former being
such as are established for the adjudication of con-
troversies between subject and subject, or the as-
certainment, enforcement, and redress of private
rights; the latter, such as are charged with the
administration of the criminal laws, and the pun-
ishment of wrongs to the public.
Equity courts and law courts. The former be-
ing such as possess the jurisdiction of a chancel-
lor, apply the rules and principles of chancery law,
and follow the procedure in equity; the latter,
such as have no equitable powers, but administer
justice according to the rules and practice of the
common law.
As to the division of courts according to their
jurisdiction, see Jurisdiction.
As to several names or kinds of courts not spe-
cifically described in the titles immediately fol-
lowing, see Arches Court, Appellate, Circuit
Courts, Consistory Courts, County, Customary
Court-Baron, Ecclesiastical  Courts, Federal
Courts, Forest Courts, High Commission Court,
Instance Court, Justice Court, Justiciary Court,
Legislative Courts, Maritime Court, Mayor's Court,
Moot Court, Municipal Court, Orphans' Court, Po-
lice Court, Prerogative Court, Prize Court, Pro-
bate Court, Superior Courts, Supreme Court, and
Surrogate's Court.
As to court-hand, court-house, court-lands, court
rolls, courtyard, see those titles in their alphabetic-
al order infra.
General
Court above, court below. In appellate prac-
tice, the "court above" is the one to which a cause
is removed for review, whether by appeal, writ of
error, or certiorari; while the "court below" is
the one from which the case is removed. Going
v. Schnell, 6 Ohio Dec. 933.
Court in bank. A meeting of all the judges of
a court, usually for the purpose of hearing argu-
ments on demurrers, points reserved, motions for
new trial, etc., as distinguished from sessions of
the same court presided over by a single judge or
justice.
Court of competent jurisdiction. One having
power and authority of law at the time of acting
to do the particular act. Ex parte Plaistridge, 68
Okl. 256, 173 P. 646, 647.
One having jurisdiction under the state Constitution and
laws to determine the question in controversy. Texas
Employers' Ins. Ass'n v. Nunamaker, Tex.Civ.App., 267
S. W. 749, 751. A court for the administration of justice as
established by the Constitution or statute. Bradley v.
Town of Bloomfield, 85 N.J.Law, 506, 89 A. 1009.
Court of limited jurisdiction. When a court
of general jurisdiction proceeds under a special
statute, it is a "court of limited jurisdiction" for
the purpose of that proceeding, and its jurisdic-
tion must affirmatively appear. Osage Oil & Re-
fining Co. v. Interstate Pipe Co., 124 Okl. 7, 253 P.
66, 71.
De facto court. One established, organized, and
exercising its judicial functions under authority
of a statute apparently valid, though such statute
may be in fact unconstitutional and may be after-
wards so adjudged; or a court established and
acting under the authority of a de facto govern-
ment. 1 Bl. Judgm. § 173; In re Manning, 139
U.S. 504, 11 S.Ct. 624, 35 L.Ed. 264; Gildemeister
V. Lindsay, 212 Mich, 299, 180 N.W. 633, 635.
Full court. A session of a court, which is at-
tended by all the judges or justices composing it.
Spiritual courts. In English law. The ecclesi-
astical courts, or courts Christian. See 3 Bl.
Comm. 61.
COURT-BARON. In English law. A court
which, although not one of record, is incident to
every manor, and cannot be severed therefrom.
It was ordained for the maintenance of the serv-
ices and duties stipulated for by lords of manors,
and for the purpose of determining actions of a
personal nature, where the debt or damage was
under forty shillings. Wharton; 1 Poll. & Maitl.
Hist. E. L. 580.
Customary court-baron is one appertaining en-
tirely to copyholders. 3 Bl.Comm. 33.
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COURT-MARTIAL
Freeholders' court-baron is one held before the
freeholders who owe suit and service to the man-
or. It is the court-baron proper.
Coke (1st Inst. 58a) speaks of the Court Baron as being
of the two natures just indicated. Blackstone, 3 Comm. 33,
says that, though in their nature distinct, they are fre-
quently confounded together. Later writers doubt if there
were two courts; 1 Poll. & Maitl.Hist.E.L. 580.
COURT CHRISTIAN. The ecclesiastical courts
in England are often so called, as distinguished
from the civil courts. 1 Bl. Comm. 83; 3 Bl.
Comm. 64; 3 Steph. Comm. 430.
COURT FOR CONSIDERATION OF CROWN
CASES RESERVED. A court established by St.
11 & 12 Vict. c. 78, composed of such of the judges
of the superior courts of Westminster as were able
to attend, for the consideration of questions of
law reserved by any judge in a court of oyer and
terminer, gaol delivery, or quarter sessions, be-
fore which a prisoner had been found guilty by
verdict. Such question is stated in the form of
a special case. Mozley & Whiteley; 4 Steph.
Comm. 442. The trial judge was empowered to
"state a case" for the opinion of that court. He
could not be compelled to do so, and only a ques-
tion of law could be raised. If the court consid-
ered that the point had been wrongly decided at
the trial, the conviction would be quashed. By
Act of 1907, the Court of Criminal Appeal was
created and the Court for Crown Cases Reserved
was abolished.
COURT FOR DIVORCE AND MATRIMONIAL
CAUSES. This court was established by St. 20
& 21 Vict. c. 85, which transferred to it all juris-
diction then exercisable by any ecclesiastical court
in England, in matters matrimonial, and also gave
it new powers. The court consisted of the lord
chancellor, the three chiefs, and three senior
puisne judges of the common-law courts, and the
judge ordinary, who together constituted, and
still constitute, the "full court." The judge ordi-
nary heard almost all matters in the first instance.
By the judicature act, 1873, § 3, the jurisdiction
of the court was transferred to the supreme court
of judicature. Sweet.
COURT FOR THE CORRECTION OF ERRORS.
The style of a court having jurisdiction for re-
view, by appeal or writ of error. The name was
formerly used in New York and South Carolina.
COURT FOR THE RELIEF OF INSOLVENT
DEBTORS. In English law. A local court which
had its • sittings in London only, which received
the petitions of insolvent debtors, and decided
upon the question of granting a discharge. See
3 Steph. Com. 426; 4 id. 287. Abolished by the
Bankruptcy Act of 1861.
COURT FOR THE TRIAL OF IMPEACHMENTS.
A tribunal empowered to try any officer of gov-
ernment or other person brought to its bar by the
process of impeachment. In England, the house
of lords constitutes such a court; in the United
States, the senate; and in the several states, usu-
ally the upper house of the legislative assembly.
COURT-HAND. In old English practice. The
peculiar hand in which the records of courts were
written from the earliest period down to the reign
of George II. Its characteristics were great
strength, compactness, and undeviating uniform-
ity; and its use undoubtedly gave to the ancient
record its acknowledged superiority over the mod-
ern, in tile important quality of durability.
The writing of this hand, with its peculiar ab-
breviations and contractions, constituted, while it
was in use, an art of no little importance, being
an indispensable part of the profession of "clerk-
ship," as it was called. Two sizes of it were em-
ployed, a large and a small hand; the former,
called "great court-hand," being used for initial
words or clauses, the placita of records, etc. Bur-
rill.
COURT-HOUSE. The building occupied for the
public sessions of a court, with its various offices.
The building occupied and appropriated according
to law for the holding of courts. Board of Sup'rs
of Stone County v. O'Neal, 130 Miss. 57, 93 So. 483,
484. Johnson City Buick -Co. v. Johnson, 165
Tenn. 349, 54 S.W.2d 946.
The term may be used of a place temporarily occupied
for the sessions of a court, though not the recrular court-
house. Harris v. State, 72 Miss. 960, 18 So. 387, 33 L.R.A.
85; Vigo County v. Stout, 136 Ind. 53, 35 N.E. 683, 22
L. R. A. 398.
The word may be synonymous with "county site" and
signify the seat of government. Board of Revenue of
Jefferson County v. Huey, 195 Ala. 83, 70 So. 744, 746.
COURT, HUNDRED. See Hundred Court.
COURT-LANDS. Domains or lands kept in the
lord's hands to serve his family.
COURT-LEET. The name of an English court
of record held once in the year, and not oftener,
within a particular hundred, lordship, or manor,
before the steward of the leet; being the king's
court granted by charter to the lords of those
hundreds or manors. Its office was to view the
frankpledges,—that is, the freemen within the
liberty; to present by jury crimes happening with-
in the jurisdiction; and to punish trivial misde-
meanors. It has now, however, for the most part,
fallen into total desuetude; though in some man-
ors a court-leet is still periodically held for the
transaction of the administrative business of the
manor. Mozley & Whitley; Odgers, C. L. 965;
Powell, Courts Leet; 1 Reeve, Hist. Eng. Law;
Inderwick, King's Peace, 11; 1 Poll. & Maitl. 568;
4 Steph. Com. 306.
COURT-MARTIAL. A military court, convened
under authority of government and the Uniform
Code of Military Justice, 10 U.S.C.A. § 801 et seq.,
for trying and punishing offenses committed by
members of the armed forces.
Such courts exist and have their jurisdiction by
virtue of the military law, the court being con-
stituted and empowered to act in each instance
by authority from a commanding officer.
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COURT OF ADMIRALTY
COURT . OF ADMIRALTY. A court having ju-
risdiction of causes arising under the rules of ad-
miralty law. See Admiralty.
High Court of Admiralty. In English law.
This was a court which exercised jurisdiction in
prize cases, and had general jurisdiction in mari-
time causes, on the instance side. Its proceedings
were usually in rem, and its practice and princi-
ples derived in large measure from the civil law.
The judicature acts of 1873 transferred all the
powers and jurisdiction of this tribunal to the
probate, divorce, and admiralty division of the
high court of justice.
COURT OF ANCIENT DEMESNE. In English
law. A court of peculiar constitution, held by a
bailiff appointed by the king, in which alone the
tenants of the king's demesne could be impleaded.
2 Burrows, 1046; 1 Spence, Eq.Jur. 100; 2 Bl.
Comm. 99; 1 Steph. Comm. 224; 1 Poll. & Maitl.
367.
COURT OF APPEAL, HIS MAJESTY'S. The
chief appellate tribunal of England. It was es-
tablished by the judicature acts of 1873 and 1875,
and is invested with the jurisdiction formerly ex-
ercised by the court of appeal in chancery, the ex-
chequer chamber, the judicial committee of the
privy council in admiralty and lunacy appeals,
and with general appellate jurisdiction from the
high court of justice.
COURT OF APPEALS. In American law. An
appellate tribunal which, in Kentucky, Maryland,
the District of Columbia, and New York, is the
court of last resort. In Virginia and West Vir-
ginia, it is known as the "supreme court of ap-
peals"; in Connecticut, the Supreme Court of Er-
rors; in Massachusetts and Maine, the Supreme
Judicial Court. In other states the court of last
resort is known as the Supreme Court. In Texas
the Courts of Civil Appeals are inferior to the su-
preme court.
The United States is divided into eleven judicial
circuits in each of which there is established a
court of appeals known as the United States Court
of Appeals for the circuit. 28 U.S.C.A. §§ 41, 43.
COURT OF APPEALS IN CASES OF CAPTURE.
A court erected by act of congress under the ar-
ticles of confederation which preceded the adop-
tion of the constitution. It had appellate juris-
diction in prize causes.
COURT OF ARBITRATION OF THE CHAMBER
OF COMMERCE. A court of arbitrators, creat-
ed for the convenience of merchants in the city
of New York, by act of the legislature of New
York. It decides disputes between members of
the chamber of commerce, and between members
and outside merchants who voluntarily submit
themselves to the jurisdiction of the court.
COURT OF ARCHDEACON. The most inferior
of the English ecclesiastical courts, from which
an appeal generally lies to that of the bishop (i.
e., to the Consistory Court). 3 Bl. Comm. 64; 1
Holdsw. Hist. E. L. 369,
COURT OF ASSISTANTS. A court in Massa-
chusetts organized in 1630, consisting of the gov-
ernor, deputy governor and assistants. It exer-
cised the whole power both legislative and judicial
of the colony and an extensive chancery jurisdic-
tion as well. S. D. Wilson in 18 Am.L.Rev. 226.
COURT OF ATTACHMENTS. The lowest of the
three courts held in the forests. It has fallen in-
to total disuse.
It was held before the verderers of the forest once in
every forty days, to view the attachments by the foresters
for offences against the vert and the venison. It had cog-
nizance only of small trespasses.  Larger ones were
enrolled and heard by the Justices in Eyre. 1 Holdsw.
Hist.E.L. 343.
COURT OF AUDIENCE. An ecclesiastical court,
in which the primates once exercised in person a
considerable part of their jurisdiction. Such
courts seem to be now obsolete, or at least to be
only used on the rare occurrence of the trial of a
bishop. Phillim. Ecc. Law, 1201, 1204; 1 Holdsw.
Hist. E. L. 371.
COURT OF AUGMENTATION. An English
court created in the time of Henry VIII (27 Hen.
VIII, c. 27), with jurisdiction over the property
and revenue of certain religious foundations,
which had been made over to the king by act of
parliament, and over suits relating to the same.
It was called "The Court of the Augmentations of the
Revenues of the King's Crown" (from the augmentation of
the revenues of the crown derived from the suppression of
the monasteries), and was dissolved in the reign of Queen
Mary, but the Office of Augmentation remained long after;
the records of the court are now at the Public Record
Office. Cowell.
COURT OF BANKRUPTCY. An English court
of record, having original and appellate jurisdic-
tion in matters of bankruptcy, and invested with
both legal and equitable powers for that purpose.
The Bankrupt Law Consolidation Act, 1849. By
the judicature acts, 1873 and 1875, the court of
bankruptcy was consolidated into the supreme
court of judicature.
In the United States, the Bankruptcy Act, § 1.
(10), 11 U.S.C.A. § 1(10), as amended, provides
that " 'courts of bankruptcy' shall include the dis-
trict courts of the United States and of the Ter-
ritories and possessions to which this title is or
may hereafter be applicable, and the District
Court of the United States for the District of Co-
lumbia."
COURT OF BROTHERHOOD. An assembly of
the mayors or other chief officers of the principal
towns of the Cinque Ports in England, originally
administering the chief powers of those ports,
now almost extinct. Cent. Diet.
COURT OF CHANCERY. A court having the ju-
risdiction of a chancellor; a court administering
equity and proceeding according to the forms and
principles of equity. In England, prior to the ju-
dicature acts, the style of the court possessing the
largest equitable powers and jurisdiction was the
"high court of chancery." In some of the United
States, the title "court of chancery" is applied to
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COURT OF DELEGATES
a court possessing general equity powers, distinct
from the courts of common law. Parmeter v.
Bourne, 8 Wash. 45, 35 P. 586; Bull v. Interna-
tional Power Co., 84 N.J.Eq. 209, 93 A. 86, 88.
The terms "equity" and "chancery," "court of equity"
and "court of chancery," are constantly used as synony-
mous in the United States. It is presumed that this custom
arises from the circumstance that the equity jurisdiction
which is exercised by the courts of the various states is
assimilated to that possessed by the English courts of chan-
cery. Indeed, in some of the states it is made identical
therewith by statute, so far as conformable to our institu-
tions. Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E.
397, 401.
COURT OF CHIVALRY. In English law. The
name of a court anciently held as a court of hon-
or merely, before the earl-marshal, and as a crim-
inal court before the lord high constable, jointly
with the earl-marshal. (But it is , also said that
this court was held by the constable, and after
that office reverted to the crown in the time of
Henry VIII., by the earl-marshal. Davis, Mil.
Law 13.) 3 Bl.Comm. 68; 4 Broom & H. Comm.
360, note; 3 Bl. Comm. 103; 3 Steph. Comm. 335,
note l; 7 Mod. 137.
It had jurisdiction as to contracts and other matters.
touching deeds of arms or war, as well as pleas of life or
member. It also corrected encroachments in matters of
coat-armor, precedency, and other distinctions of families.
It is now grown entirely out of use, on account of the
feebleness of its jurisdiction and want of power to enforce
its judgments, as it could neither fine nor imprison, not
being a court of record.
COURT OF CLAIMS. One of the courts of the
United States, established in 1855. U. S. v. Klein,
13 Wall., U.S., 128, 144, 20 L.Ed. 519. It consists
of a chief justice and four associates, and holds
one annual session. It is located at Washington.
Its jurisdiction extends to all claims against the
United States arising out of any contract with the
government or based on an act of congress or
regulation of the executive, and all claims referred
to it by either house of congress, as well as to
claims for exoneration by a disbursing officer. Its
judgments are, in certain cases, reviewable by the
United States supreme court. It has no equity
powers. Its decisions are reported and published.
This name is also given, in some of the states, either to
a special court or to the ordinary county court sitting "as
a court of claims," having the special duty of auditing and
ascertaining the claims against the county and expenses
incurred by it, and providing for their payment by appro-
priations out of the county levy or annual tax. Merl-
weather v. Muhlenburg County Court, 120 U.S. 354, 7 S.Ct.
563, 30 L.Ed. 653.
COURT OF COMMISSIONERS OF SEWERS.
The name of certain English courts created by
commission under the great seal pursuant to the
statute of sewers (23 Hen. VIII. c. 5).
COURT OF COMMON PLEAS. In English law.
One of the four superior courts at Westminster,
which existed up to the passing of the judicature
acts. It was also styled the "Common Bench." It
was one of the courts derived from the breaking
up of the aula regis, and had exclusive jurisdic-
tion of all real actions and of communia placita,
or common pleas, i. e., between subject and sub-
ject. It was presided over by a chief justice with
four puisne judges (later five, by virtue of 31 & 32
Vict. c. 125, § 11, subsec. 8). Appeals lay anciently
to the king's bench, but afterwards to the exche-
quer chamber. See 3 Bl.Comm. 37, et seq. Its
jurisdiction was altogether confined to civil mat-
ters, having no cognizance in criminal cases, and
was concurrent with that of the queen's bench
and exchequer in personal actions and ejectment.
Wharton.
In American law. The name sometimes given
to a court of original and general jurisdiction for
the trial of issues of fact and law according to the
principles of the common law. Moore v. Barry,
30 S.C. 530, 9 S.E. 589, 4 L.R.A. 294.
COURT OF COMMON PLEAS FOR THE CITY
AND COUNTY OF NEW YORK. The oldest
court in the state of New York, no longer in ex-
istence.
COURT OF CONCILIATION. A court which
proposes terms of adjustment, so as to avoid liti-
gation. Kashefsky v. Futernick, 153 Misc. 733,
276 N.Y.S. 253.
COURT OF CONSCIENCE. The same as courts
of request, (q. v.). This name is also frequently
applied to the courts of equity or of chancery,
not as a name but as a description. Harper v.
Clayton, 84 Md. 346, 35 A. 1083, 35 L.R.A. 211.
And see Conscience.
COURT OF CONVOCATION. In English eccle-
siastical law. A court, or assembly, comprising
all the high officials of each province and repre-
sentatives of the minor clergy. It is in the na-
ture of an ecclesiastical parliament; and, so far
as its judicial functions extend, it has jurisdic-
tion of cases of heresy, schism, and other purely
ecclesiastical matters. An appeal lies to the king
in council. 2 & 3 Will. IV. c. 92; Cowell; Bac.
Abr. Ecclesiastical Courts, A, 1; 1 Bla. Comm.
279; 2 Steph. Com. 525, 668; 2 Burn, Eccl. Law,
18. Convocation exercises no jurisdiction at the
present day. 1 Holdsw. Hist. E. L. 373.
COURT OF COUNTY COMMISSIONERS. In
some states, a court of record in each county.
Thus, in Alabama, it is composed of the judge of
probate, as principal judge, and four commission-
ers, who are elected at the times prescribed by
law, and hold office for four years.
COURT OF CUSTOMS AND PATENT APPEALS.
The title given by Act Mar. 2, 1929, c. 488, § 1, 45
Stat. 1475, to a court of the United States created
by Act Aug. 5, 1909, c. 6, § 28, 36 Stat. 91, 105, and
then known as the Court of Customs Appeals, con-
sisting of a presiding judge and four associate
judges. In patent and trade-mark cases it has the
appellate jurisdiction which prior to April 1, 1929,
was vested in the Court of Appeals of the District
of Columbia. Act Mar. 2, 1929, c. 488, § 2 (a, d) ,
45 Stat. 1476. As to its jurisdiction over appeals
from the "Customs Court," see that title.
COURT OF DELEGATES. An English tribunal
composed of delegates appointed by royal com-
mission, and formerly the great court of appeal
in all ecclesiastical causes. The powers of the
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COURT OF DELEGATES
court were, by 2 & 3 Wm. IV. c. 92, transferred
to the privy council. Brown; 3 Bl. Comm. 66; 1
Holdsw. Hist. E. L. 373.
A commission of review was formerly granted, in extra-
ordinary cases, to revise a sentence of the court of dele-
gates, when that court had apparently been led into
material error.
COURT OF EQUITY. A court which has juris-
diction in equity, which administers justice and
decides controversies in accordance with the rules,
principles, and precedents of equity, and which
follows the forms and procedure of chancery; as
distinguished from a court having the jurisdic-
tion, rules, principles, and practice of the common
law. Thomas v. Phillips, 4 Smedes & M., Miss.,
423.
COURT OF ERROR. An expression applied es
pecially to the court of exchequer chamber and the
house of lords, as taking cognizance of error
brought. Mozley & Whitley; 3 Steph. Comm. 333.
It is applied in some of the United States to the
court of last resort in the state; and in its most
general sense denotes any court having power to
review the decisions of lower courts on appeal,
error, certiorari, or other process. See Court of
Appeals.
COURT OF ERRORS AND APPEALS. The
court of last resort in the state of New Jersey
is so named. Formerly, the same title was given
to the highest court of appeal in New York.
COURT OF EXCHEQUER. In English law. A
very ancient court of record, set up by William
the Conqueror as a part of the aula regis, and
afterwards one of the four superior courts at
Westminster. It was, however, inferior in rank
to both the king's bench and the common pleas.
It was presided over by a chief baron and four
puisne barons. It was originally the king's treas-
ury, and was charged with keeping the king's
accounts and collecting the royal revenues. But
pleas between subject and subject were anciently
heard there, until this was forbidden by the Ar-
ticula super Chartas, (1290,) after which its ju-
risdiction as a court only extended to revenue
cases arising out of the non-payment or withhold-
ing of debts to the crown. But the privilege of
suing and being sued in this court was extended
to the king's accountants, and later, by the use of
a convenient fiction to the effect that the plaintiff
was the king's debtor or accountant, the court
was thrown open to all suitors in personal actions.
The exchequer had formerly both an equity side
and a common-law side, but its equity jurisdiction
was taken away by the statute 5 Vict. c. 5, (1842,)
and transferred to the court of chancery. The
judicature act (1873) transferred the business and
jurisdiction of this court to the "Exchequer Div-
ision" of the "High Court of Justice."
In Scotch law. A court which formerly had
jurisdiction of matters of revenue, and a limited
jurisdiction over cases between the crown and
its vassals where no questions of title were involv-
ed.
COURT OF EXCHEQUER CHAMBER. The
name of a former English court of appeal, inter-
mediate between the superior courts of common
law and the house of lords. When sitting as a
court of appeal from any one of the three supe-
rior courts of common law, it was composed of
judges of the other two courts. 3 Bl.Comm. 56,
57; 3 Steph.Comm. 333, 356. By the judicature
act (1873) the jurisdiction of this court is trans-
ferred to the court of appeal.
COURT OF FACULTIES. A tribunal of the arch-
bishop in England.
It does not hold pleas in any suits, but creates rights to
pews, monuments, and other mortuary matters. It had
also various other powers under 25 Hen. VIII. c. 2L Co.
4th Inst. 337; 2 Chit.Gen.Pr. 507.
COURT OF FIRST INSTANCE. A court of pri-
mary jurisdiction. Courts of this title may be
found in the jurisprudence of the Philippine Is-
lands. 15 C.J. 688.
COURT OF GENERAL QUARTER SESSIONS
OF THE PEACE. In American law. A court
of criminal jurisdiction in New Jersey.
In English law. A court of criminal jurisdic-
tion, in England, held in each county once in every
quarter of a year, but in the county of Middlesex
twice a month. 4 Steph. Comm. 317-320. When
held at other times than quarterly, the sessions
are called "general sessions of the peace." See
2 Odgers, C.L. 966.
COURT OF GENERAL SESSIONS. The name
given in some states to a court of general orig-
inal jurisdiction in criminal cases.
COURT OF GREAT SESSIONS IN WALES. A
court formerly held in Wales; abolished by 11
Geo. IV. and 1 Wm. IV. c. 70, and the Welsh judi-
cature incorporated with that of England. 3
Steph. Comm. 317, note; 3 Bla. Comm. 77.
COURT OF GUESTLING. An assembly of the
members of the Court of Brotherhood (supra) to-
gether with other representatives of the corporate
members of the Cinque Ports, invited to sit with
the mayors of the seven principal towns. Cent.
Dict.
COURT OF HIGH COMMISSION. In English
law. An ecclesiastical court of formidable juris-
diction, for the vindication of the peace and dig-
nity of the church, by reforming, ordering, and
correcting the ecclesiastical state and persons, and
all manner of errors, heresies, schisms, abuses,
offenses, contempts, and enormities. 3 Bl. Comm.
67. It was erected by St. 1 Eliz. c. 1, and abolish-
ed by 16 Car. I, c. 11. 1 Holdsw. Hist. E. L. 375.
COURT OF HONOR. A court having jurisdiction
to hear and redress injuries or affronts to a man's
honor or personal dignity, of a nature not cogniza-
ble by the ordinary courts of law, or encroach-
ments upon his rights in respect to heraldry, coat-
armor, right of precedence, and the like. It was
one of the functions of the Court of Chivalry (q.
v.) in England to sit and act as a court of honor.
3 Bl. Comm. 104.
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COURT OF OYER
The name is also given in some European countries to a
tribunal of army officers (more or less distinctly recognized
by law as a "court") convened for the purpose of inquir-
ing into complaints affecting the honor of brother officers
and punishing derelictions from the code of honor and
deciding on the causes and occasions for fighting duels, in
which officers are concerned, and the manner of conduct-
ing them.
COURT OF HUSTINGS. In English law. The
county court of London, held before the mayor,
recorder, and sheriff, but of which the recorder,
is, in effect, the sole judge. No actions can be
brought in this court that are merely personal.
3 Steph.Comm. 293, n.; 449, note 1; 3 Bla.Comm.
80, n.; Madox, Hist. Exch. c. 20; Co. 2d Inst.
327. Since the abolition of all real and mixed ac-
tions except ejectment, the jurisdiction of this
court has fallen into comparative desuetude.
Pulling on Cust. Lond.
In American Law. A local court in some parts
of Virginia. Smith v. Commonwealth, 6 Grat. 696.
COURT OF INQUIRY. In English law. A court
sometimes appointed by the crown to ascertain
whether it be proper to resort to extreme meas-
ures against a person charged before a court-
martial. 2 Steph.Comm. 590; 1 Coler.Bla.Comm.
418, n.; 2 Brod. & B. 130. Also a court for hearing
the complaints of private soldiers. Moz. & W.
Diet.; Simmons, Cts.Mart. § 341.
In American law. Formerly, a court consti-
tuted by authority of the articles of war, invested
with the power to examine into the nature of any
transaction of, or accusation or imputation
against, any officer or soldier, when demanded by
him. Rev.St. § 1342, arts. 115, 116. Repealed by
Act June 4, 1920, c. 227, § 4, 41 Stat. 812.
They were not strictly courts, having no power to try
and determine guilt or innocence. They were rather
agencies created by statute to investigate facts and report
thereon. They could not compel the attendance of wit-
nesses nor require them to testify. Davis, Mil. Law 220.
COURT OF JUSTICE SEAT. In English law.
The principal of the forest courts. Called also
Court of the Chief Justice in Eyre (q. v.).'
COURT OF JUSTICIARY. A Scotch court of
general criminal jurisdiction of all offenses com-
mitted in any part of Scotland, both to try causes
and to review decisions of inferior criminal courts.
It is composed of five lords of session with the
lord president or justice-clerk as president. It
also has appellate jurisdiction in civil causes in-
volving small amounts. An appeal lies to the
house of lords.
COURT OF KING'S BENCH. In English law.
The supreme court of common law in the king-
dom, now merged in the high court of justice
under the judicature act of 1873, § 16.
It was one of the successors of the curia regis and
received its name, it is said, because the king formerly sat
in it in person. During the reign of a queen it was called
the Queen's Bench, and during Cromwell's Protectorate it
was called the Upper Bench.
COURT OF LAW. In a wide sense, any duly con-
stituted tribunal administering the laws of the
state or nation; in a narrower sense, a court pro-
. ceeding according to the course of the common
law and governed by its rules and principles, as
contrasted with a "court of equity."
COURT OF LODEMANAGE. An ancient court
of the Cinque Ports, having jurisdiction in mari-
time matters, and particularly over pilots (lode-
men).
COURT OF MAGISTRATES AND FREEHOLD-
ERS. In American law. The name of a court
formerly established in South Carolina for the
trial of slaves and free persons of color for crim-
inal offenses.
COURT OF MARSHALSEA. In English law, the
court or seat of the marshal. A court originally
held before the steward and marshal of the king's
house, instituted to administer justice between the
king's domestic servants. It had jurisdiction of
all trespasses committed within the verge of the
king's court, where one of the parties was of the
royal household; and of all debts and contracts,
when both parties were of that establishment.
It was abolished by 12 & 13 Viet. c. 101, § 13.
Mozley & Whitley.
COURT OF NISI PRIUS. In American law.
Though this term is frequently used as a general
designation of any court exercising general, orig..
inal jurisdiction in civil cases, (being used inter-
changeably with "trial-court,") it belonged as a
legal title only to a court which formerly existed
in the city and county of Philadelphia, and which
was presided over by one of the judges of the su-
preme court of Pennsylvania. This court was
abolished by the constitution of 1874. See Courts
of Assize and Nisi Prius.
COURT OF ORDINARY. In some of the United
States (e. g., Georgia) the name given to the pro-
bate or surrogate's court, or the court having the
usual jurisdiction in respect to the proving of
wills and the administration of decedents' estates.
Veach v. Rice, 131 U.S. 293, 9 S.Ct. 730, 33 L.Ed.
163. Such a court formerly existed in New Jer-
sey, South Carolina, and Texas. 2 Kent 409.
COURT OF ORPHANS. In English law. The
court of the lord mayor and aldermen of London,
which has the care of those orphans whose parent
died in London and was free of the city. It is
now said to be fallen into disuse. 2 Steph. Comm.
313; Pull. Cust. Lond. 196, Orphans' Court.
In American law. In Pennsylvania (and per-
haps some other states) the name "orphans'
court" is applied to that species of tribunal which
is elsewhere known as the "probate court" or
"surrogate's court."
COURT OF OYER AND TERMINER. In English
law. A court for the trial of cases of treason
and felony. The commissioners of assise and
nisi prius are judges selected by the king and ap-
pointed and authorized under the great seal, in-
cluding usually two of the judges at Westminster,
and sent out twice a year into most of the coun-
ties of England, for the trial (with a jury of the
county) of causes then depending at Westminster,
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COURT OF OYER
both civil and criminal. They sit by virtue of
several commissions, each of which, in reality,
constitutes them a separate and distinct court.
The commission of oyer and terminer gives them
authority for- the trial of treasons and felonies;
that of general gaol delivery empowers them to
try every prisoner then in gaol for ,whatever of-
fense; so that, altogether, they possess full crim-
inal jurisdiction.
In American law. This name is generally used
(sometimes, with additions) as the title, or part
of the title, of a state court of criminal jurisdic-
tion, or of the criminal branch of a court of gen-
eral jurisdiction, being commonly applied to such
courts as may try felonies, or the higher grades
of crime. Such courts exist in Delaware and
Pennsylvania. They were abolished in New York
and New Jersey in 1895.
COURT OF OYER AND TERMiNER AND
ERAL GAOL (or JAIL) DELIVERY, In Amer-
ican law. A court of criminal juriftd.iCtiOn in the
state of Pennsylvania. It is held ta the same time
with the court of quarter sessions, as a general
rule, and by the same judges. Const.Pa. art. 5,
1 1; 17 P.S. §§ 371, 391, 471.
In English law. A tribunal for the examina-
tion and trial of criminals. 3 Steph. Comm. 352.
COURT OF PALACE AT WESTMINSTER. This
court had jurisdiction of personal actions arising
within twelve miles of the palace at Whitehall.
Abolished by 12 & 13 Vict. c. 101, 3 Steph. Comm.
317, note. See Court of the Steward and Mar-
shal.
COURT OF PASSAGE. An inferior court, pos-
sessing a very ancient jurisdiction over causes
of action arising within the borough of Liverpool.
It appears to have been also called the "Borough.
Court of Liverpool." It has the same jurisdic-
tion in admiralty matters as the Lancashire coun-
ty court. Rosc. Adm. 75.
COURT OF PECULIARS. A spiritual court in
England, being a branch of, and annexed to, the
Court of Arches. It has a jurisdiction over all
those parishes dispersed through the province of
Canterbury, in the midst of other dioceses, which
are exempt from the ordinary's jurisdiction, and
subject to the metropolitan only. All ecclesiastic-
al causes arising within these peculiar or exempt
jurisdictions are originally cognizable by this
court, from which an appeal lies to the Court of
Arches. 3 Steph. Comm. 431; 4 Reeve, Eng. Law,
104. Most of such courts have been abolished by
legislation. 1 Holdsw. Hist. Eng. Law 352. See,
also, Arches Court.
COURT OF PIEPOUDRE. (Also spelled Pipow-
der, Pie Powder, Py-Powder, Piedpoudre, etc.)
The lowest (and most expeditious) of the courts
of justice known to the older law of England. It
is supposed (by Cowell and Blount) to have been
so called from the dusty feet of the suitors. For
another conjecture as to the origin of the name,
see Co. 4th Inst. 472. It was a court of record in-
cident to every fair and market, was held by the
steward, and had jurisdiction to administer jus-
tice for all commercial injuries and minor of-
fenses done in that same fair or market, (not a
preceding one.) Inderwick, King's Peace 105.
An appeal lay to the courts at Westminster. This
court long ago fell into disuse. 3 Bl. Comm. 32;
Barrington, Stat. 337; 3 Steph. Comm. 317, n.;
Skene, de verb. sig. Pede pulverosus; Bracton 334;
22 L.Q.R. 244; 1 Holdsw. Hist. E. L. 309. See,
however, Odgers, C. L. 1021,
COURT OF PLEAS. A court of the county pala-
tine of Durham, having a local common-law juris-
diction. It was abolished by the judicature act,
which transferred its jurisdiction to the high
court. Jud.Act 1873, § 16; 3 Bl.Comm. 79.
COURT OF POLICIES OF ASSURANCE. A
court established by statute 43 Eliz. c. 12, to de-
termine in a summary way all causes between
merchants, concerning policies of insurance,
Crabb, Eng. Law, 503. The court was formally
abolished by stat. 26 & 27 Vict. c. 125. 3 Bl.Comm,
74; 3 Steph. Comm. 317, n.
COURT OF PRIVATE LAND CLAIMS. A fed-
eral court created by act of Congress in 1891 (26
Stat. 854), to hear and determine claims by pri-
vate parties to lands within the public domain,
where such claims originated under Spanish or
Mexican grants, and had not already been con-
firmed by Congress or otherwise adjudicated.
The existence and authority of this court were
to cease and determine at the end of the year
1895.
COURT OF PROBATE. In English law. The
name of a court established in 1857, under the
probate act of that year, (20 & 21 Viet, c. 77,) to
be held in London, to which court was transfer-
red the testamentary jurisdiction of the ecclesi-
astical courts. 2 Steph. Comm. 192. By the judi-
cature acts, this court is merged in the high court
of justice.
In American law. A court having jurisdic-
tion over the probate of wills, the grant of admin-
istration, and the supervision of the management
and settlement of the estates of decedents, includ-
ing the collection of assets, the allowance of
claims, and the distribution of the estate. In
some states the probate courts also have juris-
diction of the estates of minors, including the ap
pointment of guardians and the settlement of
their accounts, and of the estates of lunatics, habi-
tual drunkards, and spendthrifts. Pons v. Pons,
132 La. 370, 61 So. 406, 407. And in some states
these courts possess a limited jurisdiction in civil,
and criminal cases. They are also called in some
jurisdictions "orphans' courts" and "surrogate's
courts."
COURT OF PYPOWDER, PY-POWDER, or PY-
POWDERS. See Court of Piepoudre.,
COURT OF QUARTER SESSIONS OF THE
PEACE. In American law. A court of criminal
jurisdiction in the state of Pennsylvania, having
power to try misdemeanors, and exercising cer-
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COURT OF THE CORONER
tain functions of an administrative nature. There
is one such court in each county of the state. Its
sessions are, in general, held at the same time
and by the same judges as the court of oyer and
terminer and general jail delivery. Const.Pa.
art. 5, § 1; 17 P.S. §§ 331, 361.
COURT OF QUEEN'S BENCH. See Court of
King's Bench.
COURT OF RECORD. See Court, supra.
COURT OF REGARD. In English law. One of
the forest courts, in England, held every third
year, for the lawing or expeditation of dogs, to
prevent them from running after deer. It is now
obsolete. 3 Steph. Comm. 440; 3 Bl. Comm. 71,
72.
COURT OF SESSION. The name of the highest
court of civil jurisdiction in Scotland. It was
composed of fifteen judges, now of thirteen. It
sits in two divisions. The lord president and three
ordinary lords form the first division; the lord
justice clerk and three other ordinary lords form
the second division. There are five permanent
lords ordinary attached equally to both divisions;
the last appointed of whom officiates on the bills,
i. e., petitions preferred to the court during the
session, and performs the other duties of junior
lord ordinary. The chambers of the parliament
house in which the first and second divisions hold
their sittings are called the "inner house;" those
in which the lords ordinary sit as single judges to
hear motions and causes are collectively called
the "outer house." The nomination and appoint-
ment of the judges is in the crown. Wharton.
COURT OF SESSIONS. Courts of criminal ju-
risdiction existing in California, New York, and
one or two other of the United States.
COURT OF SHEPWAY. A court held before the
lord warden of the Cinque Ports. A writ of er-
ror lay from the mayor and jurats of each port
to the lord warden in this court, and thence to the
queen's bench. The civil jurisdiction of the Cin-
que Ports is abolished by 18 & 19 Vict. c. 48.
COURT OF SPECIAL SESSIONS. A generic
term, applicable to those courts which have no
stated terms and are not continuous, but which are
organized only for the trial of each particular case
and become functus officio when judgment is ren-
dered therein. People v. Wagner, 45 N.Y.S.2d
314, 316.
COURT OF STANNARIES. In English law. A
court established in Devonshire and Cornwall, for
the administration of justice among the miners
and tinners, that they might not be drawn away
from their business to attend suits in distant
courts. The stannary court is a court of record,
with a special jurisdiction. 3 Bl. Comm. 79.
COURT OF STAR CHAMBER. This was an Eng-
lish court of very ancient origin, but new-modeled.
by St. 3 Hen. VII. c. 1, and 21 Hen. VIII. c. 20, con-
sisting of divers lords, spiritual and temporal, be-
ing privy councillors, together with two judges of
Black's Law Dictionary Revised 4th Ed.-28
the courts of common law, without the interven-
tion of any jury. The jurisdiction extended legal-
ly over riots, perjury, misbehavior of sheriffs, and
other misdemeanors contrary to the laws of the
land; yet it was afterwards stretched to the as-
serting of all proclamations and orders of state,
to the vindicating of illegal commissions and
grants of monopolies; holding for honorable that
which it pleased, and for just that which it pro-
fited, and becoming both a court of law to deter-
mine civil rights and a court of revenue to enrich
the treasury. It was finally abolished by St. 16
Car. I, c. 10, to the general satisfaction of the
whole nation. Brown.
COURT OF SURVEY. A court for the hearing
of appeals by owners or masters of ships, from
orders for the detention of unsafe ships, made by
the English board of trade, under the merchant
shipping act, 1876, § 6.
COURT OF SWEINMOTE (spelled, also, Swain-
mote, Swain-gemote; Saxon, swang, an attend-
ant, a freeholder, and mote or gemote, a meeting).
One of the old forest courts, held before the ver-
derers, as judges, by the steward, thrice in every
year,—the sweins or freeholders within the forest
composing the jury. This court had jurisdiction
to inquire into grievances and oppressions com-
mitted by the officers of the forest, and also to re-
ceive and try presentments certified from the
court of attachments, certifying the cause, in turn,.
under the seals of the jury, in case of conviction,
to the court of justice seat for the rendition of
judgment. Cowell; 3 Bla. Corn. 71, 72; 3 Steph.
Corn. 317, n. See Inderwick, King's Peace 150;
Forest Laws.
COURT OF THE CHIEF JUSTICE IN EYRE.
The highest of the courts of the forest, held every
three years, by the chief justice, to inquire of pur-
prestures or encroachments, assarts, or cultiva-
tion of forest land, claims to franchises, parks,
warrens, and vineyards in the forest, as well as
claims of the hundred, claims to the goods of fel-
ons found in the forest, and any other civil ques-
tions that might arise within the forest limits.
But it had no criminal jurisdiction, except of of-
fenses against the forest laws. It was called also
the court of justice seat. Inderwick, King's Peace.
Since the Restoration the forest laws have fallen
into disuse. The office was abolished in 1817.
COURT OF THE CLERK OF THE MARKET.
An English court of inferior jurisdiction held in
every fair or market for the punishment of mis-
demeanors committed therein. The jurisdiction
over weights and measures formerly exercised
was taken away by stat. 5 & 6 Will. IV. c. 637
9 M. & W. 747. 4 Steph. Comm. 323.
COURT OF THE CORONER. In English law. A
court of record, to inquire, when any one dies in
prison, or comes to a violent or sudden death, by
what manner he came to his end. 4 Steph. Comm.
323; 4 Bl. Comm. 274. Now generally known as
an inquest. See Coroner.
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COURT OF TILE COUNTIES
COURT OF THE COUNTIES PALATINE. In
English law. A species of private court which
formerly appertained to the counties palatine of
Lancaster and Durham. 1 Holdsw. Hist. E. L. 47;
1 Steph. Hist. C. L. 138; Coke, 4 Inst. 239; 1
Harg. L. Tr. 378.
COURT OF THE DUCHY OF LANCASTER. A.
court of special jurisdiction, held before the chan-
cellor of the duchy or his deputy, concerning all
matters of equity relating to lands holden of the
king in right of the duchy of Lancaster. 3 Bl.
Comm. 78.
COURT OF THE EARL MARSHAL. In the reign
of William the Conqueror the marshal was next
in rank to the constable, in command of the army.
When the constable's office ceased, his duties de-
volved upon the earl marshal. The military
Court of the Constable came to be known as the
Marshal's Court, or, in its modern form, Court-
Martial. Aside from its criminal jurisdiction, it
had much to do with questions relating to fiefs
and military tenures, though not to property
rights involved therein. Davis, Mil. Laws of U. S.
14. See Hale, Hist. C. L. 36; Grose, Mil. Antiq.
See Court of Chivalry; Courts-Martial; Constable
of England.
COURT OF THE LORD HIGH ADMIRAL. In
the earlier part of the 14th century, the Admiral
possessed a disciplinary jurisdiction over his fleet.
After 1340 it is reasonable to suppose that the
Admiral could hold an independent court and ad-
minister justice in piracy and other maritime
cases. There were at first several admirals and
several courts. From the early 15th century
there was one Lord High Admiral and one Court
of Admiralty. 1 Holdsw. Hist. E. L. 313.
COURT OF THE LORD HIGH STEWARD. In
English law. A court instituted for the trial, dur-
ing the recess of parliament, of peers indicted for
treason or felony, or for misprision of either.
This court is not a permanent body, but is creat-
ed in modern times, when occasion requires, and
for the time being, only; and the lord high stew
ard, so constituted, with such of the temporal
lords as may take the proper oath, and act, con-
stitute the court.
All peers who have a right to sit and vote in Parliament
must be summoned. They are the sole judges of fact, and
the majority, which must consist of twelve at least,
decides. The Lord High Steward has a vote, and is judge
of all matters of law.
COURT OF THE LORD HIGH STEWARD OF
THE UNIVERSITIES. In English law. A court
constituted for the trial of scholars or privileged
persons connected with the university at Oxford
or Cambridge who are indicted for treason, felony,
or mayhem. 3 Bla. Comm. 83; 4 id. 277; 1 Steph.
Comm. 67; 3 id. 341; 4 id. 261.
COURT OF THE OFFICIAL PRINCIPAL. This
court, the Court of the "Official Principal" of the
Archbishop of Canterbury, is more commonly
called the Arches Court, or Court of the Arches.
See Arches Court.
COURT OF THE STEWARD AND MARSHAL.
A high court, formerly held in England by the
steward and marshal of the king's household, hav-
ing jurisdiction of all actions against the king's
peace within the bounds of the household for
twelve miles, which circuit was called the "verge."
Crabb, Eng. Law, 185. It had also jurisdiction
of actions of debt and covenant, where both the
parties were of the household. 2 Reeve, Eng.Law,
235, 247. This court was created by Charles I.,
and abolished in 1849. It was held in the bor-
ough of Southwark, and was called also the "pal-
ace court," having jurisdiction of all personal ac-
tions arising within twelve miles of the royal pal-
ace of Whitehall, exclusive of London.
COURT OF THE STEWARD OF THE KING'S
HOUSEHOLD. In English law. A court which
had jurisdiction of all cases of treason, misprision
of treason, murder, manslaughter, bloodshed, and
other malicious strikings whereby blood is shed,
occurring in or within the limits of any of the pal-
aces or houses of the king, or any other house
where the royal person is abiding. It was created
by statute 33 Hen. VIII, c. 12, but long ago fell
into disuse. 4 Bl. Comm. 276, 277, and notes.
COURT OF WARDS AND LIVERIES. A court
of record, established in England in the reign of
Henry VIII. For the survey and management of
the valuable fruits of tenure, a court of record was
created by St. 32 Hen. VIII. c. 46, called the "Court
of the King's Wards." To this was annexed, by
St. 33 Hen. VIII, c. 22, the "Court of Liveries;" so
that it then became the "Court of Wards and Liv-
eries." 4 Reeve, Eng. Law, 258. This court was
not only for the management of "wards," prop-
erly so called, but also of idiots and natural fools
in the king's custody, and for licenses to be grant-
ed to the king's widows to marry, and fines to be
made for marrying without his license. Id. 259.
It was abolished by St. 12 Car. II. c. 24. Crabb,
Eng. Law, 468; 4 Reeve, Hist. E. L. 259; Crabb,
Hist. E. L. 468; 1 Steph. Com. 183; 4 id. 40; 2
Bla. Corn. 68; 3 id. 258.
COURT ROLLS. The rolls of a manor, contain-
ing all acts relating thereto. While belonging to
the lord of the manor, they are not in the nature
of public books for the benefit of the tenant.
COURTS OF APPEALS. A system of courts of
the United States (one in each circuit) created by
act of congress, composed of three or more judges
(provision being made also for the allotment of
the justices of the supreme court among the cir-
cuits), and having appellate jurisdiction as defin-
ed by statute. 28 U.S.C.A. §§ 41-48, 1291-1294.
Court of Appeals of the District of Columbia was held to
be Circuit Court of Appeals, Swift & Co. v. U. S., App.D.C.,
276 U. S. 311, 48 S.Ct. 311, 313, 72 L. Ed. 587.
COURTS OF ASSIZE AND NISI PRIUS. Courts
in England composed of two or more commis-
sioners, called "judges of assize," (or of "assize
and nisi prius,") who are twice in every year
sent by the king's special commission, on circuits
all round the kingdom, to try, by a jury of the
respective counties, the truth of such matters of
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COUSIN
fact as are there under dispute in the courts of
Westminster Hall. 3 Steph. Comm. 421, 422; 3
Bi. Comm. 57; 2 Odger, Corn. Law, 985.
COURTS OF CINQUE PORTS. In English law.
Courts of limited local jurisdiction formerly held
before the mayor and jurats (aldermen) of the
Cinque Ports. Their jurisdiction was not affected
by the Judicature Act of 1873. 1 Holdsw. Hist.
E. L. 305; 3 Bla. Comm. 79; 2 Steph. Comm. 499.
COURTS OF THE FOREST. Courts held for the
enforcement of the forest laws. Inderwick,
King's Peace. See Forest Courts.
COURTS OF THE FRANCHISES. Jurisdictions
in the early Norman period which rested upon
royal grants—often assumed. Edward I., in 1274,
sent out commissioners to enquire by what war-
rant different landowners were exercising their
Jura regalia. There were many varieties of lesser
franchises. Some of these franchises were recog-
nized as existing by the County Courts Acts, 1846–
1888. 1 Holdsw. Hist. E. L. 61.
COURTS OF PRINCIPALITY OF WALES. A.
species of private courts of a limited though ex-
tensive jurisdiction, which, upon the thorough
reduction of that principality and the settling of
its polity in the reign of Henry VIII, were erect-
ed all over the country. These courts, however,
have been abolished by 1 Wm. IV. c. 70; the prin-
cipality being now divided into two circuits, which
the judges visit in the same manner as they do
the circuits in England, for the purpose of dis-
posing of those causes which are ready for trial.
Brown.
COURTS OF REQUEST. Inferior courts, in Eng-
land, having local jurisdiction in claims for small
debts, established in various parts of the kingdom
by special acts of parliament. They were abol-
ished in 1846, and the modern county courts (q.
v.) took their place. 3 Steph. Comm. 283, 449;
1 Holdsw. H. E. L. 208; Bac. Abridg.; Select Cases
in the Court of Requests (Selden Society, Publ.
vol. 12).
COURTS OF THE UNITED STATES comprise
the following: The senate of the United States,
sitting as a court of impeachment; the supreme
court; the courts of appeals; the district courts;
the court of claims; the court of customs and
patent appeals; the customs court; the tax court
of the United States; and provisional courts;
courts of territories and outlying possessions.
COURTS OF THE UNIVERSITIES of Oxford and
Cambridge have jurisdiction in all personal ac-
tions to which any member or servant of the re-
spective university is a party, provided that the
cause of action arose within the liberties of the
university, and that the member or servant was
resident in the university when it arose, and when
the action was brought. 3 Steph.Comm. 299; St.
25 & 26 Vict. c. 26, § 12, St. 19 & 20 Vict. c. 17.
Each university court also has a criminal juris-
diction in all offenses committed by its members.
4 Steph. Comm. 325.
COURTS OF WESTMINSTER HALL. The su-
perior courts, both of law and equity, were for
centuries fixed at Westminster, an ancient palace
of the monarchs of England. Formerly, all the
superior courts were held before the king's cap-
ital justiciary of England, in the aula regis, or
such of his palaces wherein his royal person re-
sided, and removed with his household from one
end of the kingdom to another. This was found
to occasion great inconvenience to the suitors to
remedy which it was made an article of the great
charter of liberties, both of King John and King
Henry III., that "common pleas should no longer
follow the king's court, but be held in some cer-
tain place," in consequence of which they have
ever since been held (a few necessary removals
in times of the plague excepted) in the palace of
Westminster only. The courts of equity also sit.
at Westminster, nominally, during term time, al-
though, actually, only during the first day of
term, for they generally sit in courts provided
for the purpose in, or in the neighborhood of, Lin-
coln's Inn. Brown.
COURTESY. See Curtesy.
COURTYARD. A corrupted form of "curtilage,"
signifying a space of land about a dwelling house,
which not only might be inclosed, but within
which appurtenant buildings and structures might
be erected. In re Lafayette Ave. in City of New
York, 118 Misc.Rep. 161, 193 N.Y.S. 802, 804.
COUSIN. Kindred in the fourth degree, being the
issue (male or female) of the brother or sister of
one's father or mother. Harris v. Harris, 97 N.
J.Eq. 190, 127 A. 108, 109; In re Hering's Estate,
137 Misc. 867, 244 N.Y.S. 138.
Those who descend from the brother or sister or the
father of the person spoken of are called "paternal cous-
ins ;" "maternal cousins" are those who are descended
from the brothers or sisters of the mother. Cousins-ger-
man are first cousins. Sanderson v. Bayley, 4 Myl. & C. 59.
In . English writs, commissions, and other formal instru-
ments issued by the crown, the word signifies any peer of
the degree of an earl. The appellation is as ancient as the
reign of Henry IV., who, being related or allied to every
earl then in the kingdom, acknowledged that connection in
all his letters and public acts ; from which the use has
descended to his successors, though the reason has long ago
failed. Mozley & Whitley.
First cousins. Cousins-german; the children
of, one's uncle or aunt. Sanderson v. Bayley, 4
Mylne & C. 59.
Second cousins. Persons who are related to
each other by descending from the same great-
grandfather or great-grandmother. The children
of one's first cousins are his second cousins.
These are sometimes called "first cousins once re-
moved." Slade v. Fooks, 9 Sim. 387; Corpora-
tion of Bridgnorth v. Collins, 15 Sim. 541.
Quarter cousin. Properly, a cousin in the fourth
degree; but the term has come to express any
remote degree of relationship, and even to bear
an ironical signification in which it denotes a
very trifling degree of intimacy and regard.
Often corrupted into "cater" cousin.
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COUSINAGE
COUSINAGE. See Cosinage.
COUSTOM. (Fr. Coutum.) Custom; duty; toll;
tribute. 1 Bl. Comm. 314.
COUSTOUMIER. (Otherwise spelled "Coustu-
mier" or "Coutumier.") In old French law. A
collection of customs, unwritten laws, and forms
of procedure. Two such volumes are of especial
importance in juridical history, viz., the Grand
Coustumier de Normandie, and the Coutumier de
France or Grand Coutumier.
COUTHUTLAUGH. A person who willingly and
knowingly received an outlaw, and cherished or
concealed him; for which offense he underwent
the same punishment as the outlaw himself.
Bract. 128b ; Spelman.
COUVERTURE. In French law. The deposit
("margin") made by the client in the hands of the
broker, either of a sum of money or of securities,
in order to guaranty the broker for the payment of
the securities which he purchases for the client.
Arg.Fr.Merc.Law, 555.
COVENABLE. A French word signifying con-
venient or suitable; as covenably endowed. An-
ciently written "convenable." Termes de la Ley.
COVENANT.
Practice
The name of a common-law form of action ex
contractu, which lies for the recovery of damages
for breach of a covenant, or contract under seal.
Stickney v. Stickney, 21 N.H. 68; Utilities Produc-
tion Corporation v. Southwestern Natural Gas Co.,
Del., 1 Terry 401, 11 A.2d 275, 276.
Law of Contracts
An agreement, convention, or promise of two or
more parties, by deed in writing, signed, sealed,
and delivered, by which either of the parties
pledges himself to the other that something is
either done or shall be done, or stipulates for the
truth of certain facts. Commonwealth v. Robin.
son, 1 Watts, Pa., 160; Kent v. Edmondston, 49
N.C. 529; Schram v. Coyne, C.C.A.Mich., 127 F.2d
205, 209; Sabin v. Hamilton, 2 Ark. 485, 490 (see,
however, the later case of Dyer v. Gill, 32 Ark.
410, pointing out that by virtue of statute in Ar-
kansas, the distinction between sealed and un-
sealed instruments, with reference to contracts
between individuals, has been abolished).
An agreement between two or more parties, reduced to
writing and executed by a sealing and delivery thereof,
whereby some of the parties named therein engage, or
one of them engages, with the other, or others, or some of
them, therein also named, that some act hath or hath not
already been done, or for the performance or non-perform-
ance of some specified duty. De Bolle v. Insurance Co., 4
Whart., Pa., 71, 33 Am.Dec. 38.
In common parlance, any agreement, whether
under seal or not. 15 C.J. 1209; 7 R.C.L. 1084;
Jenkins v. John Taylor Dry Goods Co., 352 Mo.
660, 179 S.W.2d 54, 58.
In effect, this has become the legal meaning in many
states, in which private seals have been abolished by stat-
ute. For a number of these state statutes, see 66 L.R.A.
686, 687. In those states it is commonly held that the affix-
ing of a seal, when unnecessary to the validity of the
instrument, has no effect, and may be disregarded. 24
R.C.L. 689. "Seals are a relic of that period when men, as
a rule, could not write," and a covenant may "be created
in this state [Georgia] by a writing not under seal."
Atlanta, K. & N. Ry. Co. v. McKinney, 124 Ga. 929, 53 S.E.
701, 703, 6 L.R.A.,N.S., 436.
Classification
Covenants may be classified according to several
distinct principles of division. According as one or
other of these is adopted, they are:
Express or implied. The former being those
which are created by the express words of the
parties to the deed declaratory of their intention,
while implied covenants are those which are in-
ferred by the law from certain words in a deed
which imply (though they do not express) them.
Express covenants are also called covenants "in
deed," as distinguished from covenants "in law."
McDonough v. Martin, 88 Ga. 675, 16 S.E. 59, 18 L.
R.A. 343; Garstang v. Davenport, 90 Iowa 359, 57
N.W. 876.
Dependent, concurrent, and independent. Cove-
nants are either dependent, concurrent, or mutual
and independent. The first depends on the prior
performance of some act or condition, and, until
the condition is performed, the other party is
not liable to an action on his covenant. In the
second, mutual acts are to be performed at the
same time; and if one party is ready, and offers
to perform his part, and the other neglects or
refuses to perform his, he who is ready and offers
has fulfilled his engagement, and may maintain
an action for the default of the other, though it
is not certain that either is obliged to do the first
act. The third sort is where either party may re-
cover damages from the other for the injuries
he may have received by a breach of the cove-
nants in his favor; and it is no excuse for the
defendant to allege a breach of the covenants on
the part of the plaintiff. Bailey v. White, 3 Ala.
330; Gray v. Smith, C.C.Cal., 76 F. 534; Lowery v.
May, 213 Ala. 66, 104 So. 5, 8; Roberts v. Steel-
man, C.C.A.N.J., 1 F.2d 180, 182..
Mutual and independent covenants are such as do not go
to the whole consideration on both sides, but only to a
part, and where separate actions lie for breaches on either
side to recover damages for the injury sustained by breach.
Lowery v. May, 213 Ala. 66, 104 So. 5, 8; Big Run Coal Co.
v. Employers' Indemnity Co., 163 Ky. 596, 174 S.W. 25, 26.
Covenants are dependent where performance by one par-
ty is conditioned on and subject to performance by the
other, and in such case the party who seeks performance
must show performance or a tender or readiness to per-
form on his part; but covenants are independent when
actual performance of one is not dependent on another, and
where, in consequence, the remedy of both sides is by
action. Roberts v. Steelman, C.C.A.N.J., 1 F.2d 180, 182.
Principal and auxiliary. The former being those
which relate directly to the principal matter of the
contract entered into between the parties; while
auxiliary covenants are those which do not re-
late directly to the principal matter of contract
between the parties, but to something connected
with it.
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COVENANT
Inherent and collateral. The former being such
as immediately affect the particular property,
while the latter affect some property collateral
thereto or some matter collateral to the grant or
lease. Shep.Touch. 161.
A covenant inherent is one which is conversant about the
land, and knit to the estate in the land; as, that the thing
demised shall be quietly enjoyed, shall be kept in repair,
or shall not be aliened. A covenant collateral is one which
is conversant about some collateral thing that doth noth-
ing at all, or not so immediately, concern the thing grant-
ed; as to pay a sum of money in gross, etc.
Joint or several. The former bind both or all
the covenantors together; the latter bind each of
them separately. A covenant may be both joint
and several at the same time, as regards the cove-
nantors; but, as regards the covenantees, they
cannot be joint and several for one and the same
cause, (5 Coke, 19a,) but must be either joint or
several only. Brown. See Capen v. Barrows, 1
Gray, Mass., 379; In re Slingsby, 5 Coke, 18b.
Covenants are usually joint or several according as the
interests of the covenantees are such; but the words of the
covenant, where they are unambiguous, will decide,
although, where they are ambiguous the nature of the
interests as being joint or several is left to decide.
General or specific. The former relate to land
generally and place the covenantee in the position
of a specialty creditor only; the latter relate to
particular lands and give the covenantee a lien
thereon. Brown.
Executed or executory. The former being such
as relate to an act already performed; while the
latter are those whose performance is to be fu-
ture. Shep.Touch. 161.
Affirmative or negative. The former being
those in which the party binds himself to the ex-
istence of a present state of facts as represented
or to the future performance of some act; while
the latter are those in which the covenantor
obliges himself not to do or perform some act.
Declaratory or obligatory. The former being
those which serve to limit or direct uses; while
the latter are those which are binding on the party
himself. 1 Sid. 27; 1 Keb. 337.
Real and personal. A real covenant is one which
binds the heirs of the covenantor and passes to
assignees or purchasers; a covenant the obliga-
tion of which is so connected with the realty that
he who has the latter is either entitled to the bene-
fit of it or is liable to perform it; a covenant
which has for its object something annexed to,
or inherent in, or connected with, land or other
real property, and runs with the land, so that
the grantee of the land is invested with it and
may sue upon it for a breach happening in his
time. 4 Kent, Comm. 470; 2 Bl.Comm. 304; Chap-
man v. Holmes, 10 N.J.Law, 20; Skinner v. Mitch-
ell, 5 Kan.App. 366, 48 P. 450; Oil Co. v. Hinton,
159 Ind. 398, 64 N.E. 224; Davis v. Lyman, 6 Conn.
249.
In the old books, a covenant real is also defined to be
a covenant by which a man binds himself to pass a thing
real, as lands or tenements. Termes de la Ley; 3 Bl.
Comm. 156; Shep.Touch. 161. A personal covenant, on the
other hand, is one which, instead of being a charge upon
real estate of the covenantor, only binds himself and his
personal representatives in respect to assets. 4 Kent,
Comm. 470; Carter v. Denman, 23 N.J.Law, 270; Hadley
v. Bernero, 97 Mo.App. 314, 71 S.W. 451. The phrase may
also mean a covenant which is personal to the covenantor,
that is, one which he must perform in person, and cannot
procure another person to perform for him. De Sanno v.
Earle, 273 Pa. 265, 117 A. 200, 202; Pearson v. Richards,
106 Or. 78, 211 P. 167, 171. "Real covenants" relate to
realty and have for their main object some benefit thereto,
inuring to benefit of and becoming binding on subsequent
grantees, while "personal covenants" do not run with land.
Bank of Hoxie v. Meriwether, 166 Ark. 39, 265 S.W. 642,
645. Very considerable confusion exists among the author-
ities in the use of the term real covenants. The definition
of Blackstone which determines the character of covenants
from the insertion or noninsertion of the word "heir" by
the covenantor, is pretty generally rejected.
Transitive or intransitive. The former being
those personal covenants the duty of performing
which passes over to the representatives of the
covenantor; while the latter are those the duty
of performing which is limited to the covenantee
himself, and does not pass over to his representa-
tive. Bac.Abr.Cov.
Disjunctive covenants. Those which are for the
performance of one or more of several things at
the election of the covenantor or covenantee, as
the case may be. Platt, Co y . 21.
Absolute or conditional. An absolute covenant
is one which is not qualified or limited by any con-
dition.
Other Compound and Descriptive Terms
Continuing covenant. One which indicates or
necessarily implies the doing of stipulated acts
successively or as often as the occasion may re-
quire; as, a covenant to pay rent by installments,
to keep the premises in repair or insured, to culti-
vate land, etc. McGlynn v. Moore, 25 Cal. 395.
Full covenants. As this term is used in Ameri-
can law, it includes the following: The covenants
for seisin, for right to convey, against incum-
brances, for quiet enjoyment, sometimes for fur-
ther assurance, and almost always of warranty,
this last often taking the place of the covenant for
quiet enjoyment, and indeed in many states being
the only covenant in practical use. Rawle, Coy.
for Title, § 21.
Mutual covenants. A mutual covenant is one
where either party may recover damages from the
other for the injury he may have received from a
breach of the covenants in his favor. Bailey v.
White, 3 Ala. 330.
Separate covenant. A several covenant; one
which binds the several covenantors each for him-
self, but not jointly.
Usual covenants. An agreement on the part of
a seller of real property to give the usual cove-
nants binds him to insert in the grant covenants of
"seisin," "quiet enjoyment," "further assurance,"
"general warranty," and "against incumbrances."
Wilson v. Wood, 17 N.J.Eq. 216, 88 Am.Dec. 231;
Drake v. Barton, 18 Minn. 467, Gil. 414.
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COVENANT
The result of the authorities appears to be that in a case
where the agreement is silent as to the particular cove-
nants to be inserted in the lease, and provides merely for
the lease containing "usual covenants," or, which is the
same thing, in an open agreement without any reference
to the covenants, and there are no special circumstances
justifying the introduction of other covenants, the follow-
ing are the only ones which either party can insist upon,
namely; Covenants by the lessee (1) to pay rent; (2)
to pay taxes, except such as are expressly payable by the
landlord; (3) to keep and deliver up the premises in
repair; and (4) to allow the lessor to enter and view the
state of repair; and the usual qualified covenant by the
lessor for quiet enjoyment by the lessee. 7 Ch.Div. 561.
Specific Covenants
Covenants against incumbrances. A covenant
that there are no incumbrances on the land con-
veyed; a stipulation against all rights to or in-
terests in the land which may subsist in third
persons to the diminution of the value of the es-
tate granted. Bank v. Parisette, 68 Ohio St. 450,
67 N.E. 896; Shearer v. Ranger, 22 Pick., Mass:,
447; Matzger v. Arcade Building & Realty Co.,
102 Wash. 423, 173 P. 47.
Covenant for further assurance. An undertak-
ing, in the form of a covenant, on the part of the
vendor of real estate to do such further acts for
the purpose of perfecting the purchaser's title
as the latter may reasonably require. This cove-
nant is deemed of great importance, since it re-
lates both to the vendor's title of and to the in-
strument of conveyance to the vendee, and op-
erates as well to secure the performance of all
acts necessary for supplying any defect in the
former as to remove all objections to the sufficien-
cy and security of the latter. Platt, Cov.; Rawle,
Coy . §§ 98, 99. See Sugd.Vend. 500; Armstrong v.
Darby, 26 Mo. 520.
Covenant for quiet enjoyment. An assurance
against the consequences of a defective title, and
of any disturbances thereupon. Platt, Cov. 312;
Rawle, Co y . 125. Gulf Refining Co. v. Fetschan,
C.C.A.Ohio, 130 F.2d 129, 132.
A covenant that the tenant or grantee of an estate shall
enjoy the possession of the premises in peace and without
disturbance by hostile claimants. Poposkey v. Munkwitz,
68 Wis. 322, 32 N.W. 35, 60 Am.Rep. 858; Stewart v. Drake,
9 N.J.Law, 141; Christy v. Bedell, 10 Kan. App. 435, 61 P.
1095.
Covenants for title. Covenants usually inserted
in a conveyance of land, on the part of the gran-
tor, and binding him for the completeness, se-
curity, and continuance of the title transferred to
the grantee. They comprise "covenants for seisin,
for right to convey, against incumbrances, or quiet
enjoyment, sometimes for further assurance, and
almost always of warranty." Rawle, Cov. § 21.
Covenants in gross. Such as do not run with
the land.
Covenant not to sue. A covenant by one who
had a right of action at the time of making it
against another person, by which he agrees not to
sue to enforce such right of action. Pacific States
Lumber Co. v. Bargar, C.C.A.Or., 10 F.2d 335, 337;
McDonald v. Goddard Grocery Co., 184 Mo.App.
432, 171 S.W. 650, 651,
Covenant of non-claim. A covenant sometimes
employed, particularly in the New England states,
and in deeds of extinguishment of ground rents in
Pennsylvania, that neither the vendor, nor his
heirs, nor any other person, etc., shall claim any
title in the premises conveyed. Rawle, Co y . § 22.
Covenant of right to convey. An assurance by
the covenantor that the grantor has sufficient
capacity and title to convey the estate which he
by his deed undertakes to convey.
Covenant of seisin. An assurance to the pur-
chaser that the grantor has the very estate in
quantity and quality which he purports to con-
vey. 11 East, 641; Rawle, Co y . § 58; Burton v.
Price, 105 Fla. 544, 141 So. 728, 729.
It is said that the covenant of seisin is not now in use
in England, being embraced in that of a right to convey;
but it is used in several of the United States. 2 Washb.
Heal Prop. *648.
Covenant of warranty. An assurance by the
grantor of an estate that the grantee shall enjoy
the same without interruption by virtue of para-
mount title. King v. Kilbride, 58 Conn. 109, 19
A. 519; Blair v. Morris, 212 Ala. 91, 101 So. 745,
746; Biwer v. Martin, 294 Ill. 488, 128 N.E. 518,
522.
Covenant running with land. A covenant which
goes with the land, as being annexed to the es-
tate, and which cannot be separated from the
land, and transferred without it. 4 Kent, Comm.
472, note.
A covenant is said to run with the land, when not only
the original parties or their representatives, but each suc-
cessive owner of the land, will be entitled to its benefit, or
be liable (as the case may be) to its obligation. 1 Steph.
Comm. 455. Or, in other words, it is so called when either
the liability to perform it or the right to take advantage
cf it passes to the assignee of the land. Tillotson v.
Prichard, 60 Vt. 94, 14 A. 302, 6 Am.St.Rep. 95; Spencer's
Case, 3 Coke, 31. One which touches and concerns the
land itself, so that its benefit or obligation passes with
the ownership. Local Federal Savings  Loan Ass'n of
Oklahoma City v. Eckroat, 186 Okl. 660, 100 P.2d 261, 262.
Covenant running with title. A covenant which
goes with the title. Stipulation in a lease granting
to lessee the option of renewing it for another
specified period was such a covenant. Magnolia
Petroleum Co. v. Carter, La.App., 2 So.2d 680, 682.
Covenant to convey. A covenant by which the
convenantor agrees to convey to the covenantee a
certain estate, under certain circumstances.
Covenant to renew. An executory contract,
giving lessee the right to renew on compliance
with the terms specified in the renewal clause,
if any, or, if none, on giving notice, prior to termi-
nation of the lease, of his desire to renew, where-
upon the contract becomes executed as to him.
Freiheit v. Broch, 98 Conn. 166, 118 A. 828, 830.
Covenant to stand seised. A conveyance adapted
to the case where a person seised of land in pos-
session, reversion, or vested remainder, proposes
to convey it to his wife, child, or kinsman. In its
terms it consists of a covenant by him, in consid-
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CRANK
eration of his natural love and affection, to stand
seised of the land to the use of the intended trans-
feree. Before the statute of uses this would mere-
ly have raised a use in favor of the convenantee;
but by that act this use is converted into the legal
estate, and the covenant therefore operates as a
conveyance of the land to the covenantee. It is
now almost obsolete. 1 Steph.Comm. 532; Wil-
liams, Seis. 145; French v. French, 3 N.H. 261;
Jackson v. Swart, 20 Johns., N.Y., 85.
COVENANTEE. The party to whom a covenant
is made. Shep.Touch. 160.
COVENANTOR. The party who makes a cove-
nant. Shep.Touch. 160.
COVENANTS PERFORMED. In Pennsylvania
practice. This is the name of a plea to the action
of covenant whereby the defendant, upon informal
notice to the plaintiff, may give anything in evi-
dence which he might have pleaded. With the
addition of the words "absque hoc" it amounts to
a denial of the allegations of the declaration; and
the further addition of "with leave," etc., imports
an equitable defense, arising out of special cir-
cumstances, which the defendant means to offer in
evidence. Zents v. Legnard, 70 Pa. 192; Stewart
v. Bedell, 79 Pa. 336.
COVENT. A contraction, in the old books, of the
word "convent."
COVENTRY ACT. The name given to the statute
22 & 23 Car. II. c. 1, which provided for the pun-
ishment of assaults with intent to maim or dis-
figure a person. It was so named from its being
occasioned by an assault on Sir John Coventry in
the street as was supposed, for some obnoxious
words uttered by him in parliament. 4 Bl.Comm.
207; State v. Cody, 18 Or. 506, 23 P. 891.
COVER, v. In insurance. To protect by means
of insurance; sometimes orally pending issuance
of policy. Barrette v. Casualty Co. of America,
79 N.H. 59, 104 A. 126, 127; Michigan Idaho Lum-
ber Co. v. Northern Fire & Marine Ins. Co., 35
N.D. 244, 160 N.W. 130, 136; Muntz v. Travelers
Mut. Casualty Co., 229 Iowa 1015, 295 N.W. 837,
841.
COVER INTO. The phrase "covered into the
treasury," as used in acts of congress and the
practice of the United States treasury department,
means that money has actually been paid into
the treasury in the regular manner, as distin-
guished from merely depositing it with the treas-
urer. U. S. v. Johnston, 124 U.S. 236, 8 S.Ct. 446,
31 L.Ed. 389.
COVERING DEED. A trust deed executed by a
trading company to secure an issue of debentures;
Simonson, Debentures, 38.
COVERT. Covered, protected, sheltered. A pound
covert is one that is closed or covered over, as
distinguished from pound overt, which is open
overhead. Co.Litt. 47b; 3 Bl.Comm. 12. A feme
covert is so called, as being under the wing, pro-
tection, or cover of her husband. 1 Bl.Comm. 442.
COVERT BARON, or COVERT DE BARON. Un-
der the protection of a husband; married. 1 El.
Comm. 442. La feme que est covert de baron,
the woman which is covert of a husband. Litt.
§ 670.
COVERTURE. The condition or state of a mar-
ried woman. Sometimes used elliptically to de-
scribe the legal disability arising from a state of
coverture. Osborn v. Horine, 19 Ill. 124; Roberts
v. Lund, 45 Vt. 86.
COVIN. A secret conspiracy or agreement be-
tween two or more persons to injure or defraud
another. Mix v. Muzzy, 28 Conn. 191; Anderson
v. Oscamp, Ind.App., 35 N.E. 707; Hyslop v.
Clarke, 14 Johns., N.Y., 465; Co.Litt. 357b; Co-
myns, Dig. Covin, A; 1 Viner, Abr. 473.
COVINOUS. Deceitful; fraudulent; having the
nature of, or tainted by covin.
COW. Female of bovine genus of animals. Strict-
ly, one that has calved. Often loosely used to in-
clude heifer, or young female that has not calved.
2 East, Pl.Cr. 616; 1 Leach 105. See Taylor v.
State, 6 Humph., Tenn., 285; Tombigbee Valley R.
Co. v. Wilks, 6 Ala.App. 473, 60 So. 559; Mathis
v. State, 70 Fla. 194, 69 So. 697, 698; Parsons v.
Kimmel, 206 Mich. 676, 173 N.W. 539, 540.
COWARDICE. Pusillanimity; fear; misbehavior
through fear in relation to some duty to be per-
formed before an enemy. O'Brien Ct.M. 142; Coil
v. State, 62 Neb. 15, 86 N.W. 925.
CRACKING. The conversion, by means of heat
and usually pressure, of the complex hydrocarbon
molecules of heavier oils into the molecular struc-
ture of the desired lighter oils. Universal Oil
Products Co. v. Skelly Oil Co., D.C.Del., 20 F.2d 995.
CRAFT. A general term, now commonly applied
to all kinds of sailing vessels, though formerly
restricted to the smaller vessels. The Wenonah,
21 Grat., Va., 697; Reed v. Ingham, 3 El. & B.
898.
A trade or occupation of the sort requiring skill
and training, particularly manual skill combined
with a knowledge of the principles of the art; also
the body of persons pursuing such a calling; a
guild. Ganahl v. Shore, 24 Ga. 23, Cole v. Com-
monwealth, 169 Va. 868, 193 S.E. 517, 519.
Guile, artful cunning, trickiness. Not a legal
term in this sense, though often used in connec-
tion with such terms as "fraud" and "artifice."
CRANAGE. A liberty to use a crane for drawing
up goods and wares of burden from ships and ves-
sels, at any creek of the sea, or wharf, unto the
land, and to make a profit of doing so. It also sig-
nifies the money paid and taken for the service.
Tomlins.
CRANK. A term vulgarly applied to a person- of
eccentric, ill-regulated, and unpractical mental
habits; a person half-crazed; a monomaniac; not
necessarily equivalent to "insane person," "luna-
tic," or any other term descriptive of complete
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CRASSUS
mental derangement, and not carrying any impli-
cation of homicidal mania. Walker v. Tribune Co.,
C.C.I11., 29 F. 827.
CRASSUS. Large; gross; excessive; extreme.
Crassa ignorantia, gross ignorance. Fleta, lib. 5,
c. 22, § 18.
Crassa negligentia. Gross neglect; absence of
ordinary care and diligence. Hun v. Cary, 82 N.Y.
72, 37 Am.Rep. 546.
CRASTINO. Lat. On the morrow, the day after.
The return-day of writs; because the first day of
the term was always some saint's day, and writs
were returnable on the day after. 2 Reeve, Eng.
Law, 56.
CRATES. An iron gate before a prison. 1 Vent.
304.
CRAVE. To ask or demand; as to crave oyer.
See Oyer.
CRAVEN. In old English law. A word of dis-
grace and obloquy, pronounced on either cham-
pion, in the ancient trial by battle, proving re-
creant, e., yielding. Glanville calls it "infestum
et inverecundum verbum." His condemnation was
amittere liberam legem, e., to become infamous,
and not to be accounted liber et legalis homo, be-
ing supposed by the event to have been proved
forsworn, and not fit to be put upon a jury or ad-
mitted as a witness. Wharton.
CRAZY. A broken, shattered, or deranged con-
dition of the mind; insane. Bates v. Oden, 198
Ala. 569, 73 So. 921. Thompson v. State, 104 Tex.
Cr.R. 637, 285 S.W. 826, 830.
CREAMER. A foreign merchant, but generally
taken for one who has a stall in a fair or market.
Blount.
CREAMUS. Lat. We create. One of the words
by which a corporation in England was formerly
created by the king. 1 Bl.Comm. 473.
CREANCE. In French law. A claim; a debt;
also belief, credit, faith.
CREANCER. One who trusts or gives credit; a
creditor. Britt. cc. 28, 78.
CREANSOR. A creditor. Cowell.
CREATE. To bring into being; to cause to ex-
ist; to produce; as, to create a trust in lands, to
create a corporation. Edwards v. Bibb, 54 Ala.
481; McClellan v. McClellan, 65 Me. 500; Pickett
v. Board of Com'rs of Fremont County, 24 Idaho
200, 133 P. 112, 114; People v. California Fish Co.,
166 Cal. 576, 138 P. 79, 91.
To create a charter or a corporation Is to make one
which never existed before, while to renew one is to give
vitality to one which has been forfeited or has expired;
and to extend one is to give an existing charter more time
than originally limited. Indianapolis v. Navin, 151 Ind.
139, 51 N.E. 80, 41 L.R.A. 344; State v. Powell, 109
Ohio St. 383, 1.42 N.E. 401, 403; Town of Westernport v.
Green, 144 Md. 85, 124 A. 403.
CREDENTIALS. In international law. The in-
struments which authorize and establish a public
minister in his character with the state or prince
to whom they are addressed. If the state or prince
receive the minister, he can be received only in
the quality attributed to him in his credentials.
They are, as it were, his letter of attorney, his
mandate patent, mandatum manifestum. Vattel,
liv. 4, c. 6, § 76.
CREDIBILITY. Worthiness of belief; that quali-
ty in a witness which renders his evidence wor-
thy of belief. After the competence of a witness
is allowed, the consideration of his credibility
arises, and not before. 3 Bl.Comm. 369; 1 Bur-
rows, 414, 417; Smith v. Jones, 68 Vt. 132, 34 A.
424; Loeb v. State, 133 Miss. 883, 98 So. 449, 451;
Dewein v. State, 120 Ark. 302, 179 S.W. 346, 347.
As to the distinction between competency and
credibility, see Competency.
CREDIBLE. Worthy of belief; entitled to credit.
See Competency.
Credible person. One who is trustworthy and'
entitled to be believed; in law and legal proceed-
ings, one who is entitled to have his oath or affi-
davit accepted as reliable, not only on account of
his good reputation for veracity, but also on ac-
count of his intelligence, knowledge of the cir-
cumstances, and disinterested relation to the mat-
ter in question. Also one who is competent to tes-
tify. Dunn v. State, 7 Tex.App. 605; Territory v.
Leary, 8 N.M. 180, 43 P. 688; Loeb v. State, 133
Miss. 883, 98 So. 449, 451; Burleson v. State, 131
Tex.Cr.R. 576, 100 S.W.2d 1019, 1020.
Credible witness. One who is competent to
give evidence; also one who is worthy of belief.
Peck v. Chambers, 44 W.Va. 270, 28 S.E. 706;
Savage v. Bulger, 77 S.W. 717, 25 Ky.Law.Rep.
1269; Appeal of Clark, 114 Me. 105, 95 A. 517,
Ann.Cas. 1917A, 837; Hill v. Chicago Title &
Trust Co., 322 M. 42, 152 N.E. 545, 546; Burleson
v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, 1020.
CREDIBLY INFORMED. The statement in a
pleading or affidavit, that one is "credibly in-
formed and verily believes" such and such facts,
means that, having no direct personal knowledge
of the matter in question, he has derived his in-
formation in regard to it from authentic sources
or from the statements of persons who are not
only "credible," in the sense of being trustworthy,
but also informed as to the particular matter or
conversant with it.
CREDIT. The ability of a business man to bor-
row money, or obtain goods on time, in conse-
quence of the favorable opinion held by the com-
munity, or by the particular lender, as to his sol-
vency and reliability. People v. Wasservogle, 77
Cal. 173, 19 P. 270; In re Ford, D.C.Wash., 14
F.2d 848, 849; State ex rel. Globe-Democrat Pub.
Co. v. Gehner, 316 Mo. 694, 294 S.W. 1017, 1018.
That influence connected with certain social posi-
tions. 20 Toullier, n. 19. Time allowed to the
buyer of goods by the seller, in which to make
payment for them. The correlative of a debt;
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CREDITOR
that is, a debt considered from the creditor's
standpoint, or that which is incoming or due to
one. Mountain State Motor Car Co. v. Solof, 97
W.Va. 196, 124 S.E. 824, 825. That which is due
to a person, as distinguished from debit, that
which is due by him. Claim or cause of action
for specific sum of money. Richard v. American
Union Bank, 204 N.Y.S. 719, 722, 123 Misc.Rep.
92; Thaden v. Bagan, 139 Minn. 46, 165 N.W. 864,
865; Richard v. American Union Bank, 204 N.Y.
S. 719, 722, 123 Misc.Rep. 92; New York Life Ins.
Co. v. Edwards, C.C.A.N.Y., 8 F.2d 851, 856; Hum-
phreys v. County Court, 90 W.Va. 315, 110 S.E.
701, 702, 703.
A sum credited on the books of a company to person
who appears to be entitled to it. Coons v. Home Life Ins.
Co. of New York, 291 Ill.App. 313, 9 N.E.2d 419, 421. The
credit of an individual is the trust reposed in him by those
who deal with him that he is of ability to meet his engage-
ments; and he is trusted because through the tribunals of
the country he may be made to pay. The credit of a
government is founded on a belief of its ability to comply
with its engagements, and a confidence in its honor, that
it will do that voluntarily which it cannot be compelled
to do. Owen v. Branch Bank, 3 Ala. 258.
Bill of Credit. See Bill.
Letter of Credit. An open or sealed letter,
from a merchant in one place, directed to an-
other, in another place or country, requiring him,
if a person therein named, or the bearer of the
letter, shall have occasion to buy commodities, or
to want money to any particular or unlimited
amount, either to procure the same or to pass
his promise, bill, or bond for it, the writer of the
letter undertaking to provide him the money for
the goods, or to repay him by exchange, or to
give him such satisfaction as he shall require,
either for himself, or the bearer of the letter.
3 Chit.Com.Law, 336. Powerine Co. v. Russel Inc.,
103 Utah 441, 135 P.2d M6, 909, 910, 912.
A written instrument, addressed by one person to
another, requesting the latter to give credit to the person
in whose favor it is drawn. Mechanics Bank v. New York
& N. H. R. Co., 13 N.Y. 599; Lafargue v. Harrison, 70 Cal.
380, 9 P. 261, 59 Am.Rep. 416. A letter of credit is in the
nature of a negotiable instrument, and is a letter whereby
a person requests another to advance money or give credit
to a third person, and promises to repay person making
advancement. Second Nat. Bank of Toledo v. M. Samuel
& Sons, C.C.A.N.Y., 12 F.2d 963, 966, 53 A.L.R. 49; Border
Nat. Bank of Eagle Pass, Tex., v. American Nat. Bank of
San Francisco, Cal., C.C.A.Tex., 282 F. 73, 77; Liggett v.
Levy, 233 Mo. 590, 136 S.W.2d 299, 301, Ann.Cas.1912C, 70;
General and special. A general letter of credit is one
addressed to any and all persons, without naming any one
in particular, while a special letter of credit is addressed
to a particular individual, firm, or corporation by name.
Birckhead v. Brown, 5 Hill, N.Y., 642; American Steel Co.
v. Irving Nat. Bank, C.C.A.N.Y., 266 F. 41, 43. A "con-
firmed irrevocable letter of _credit,"" an "irrevocable let-
ter," or a "confirmed credit" is a contract to pay on com-
pliance with its terms, and needs no formal acknowledg-
ment or acceptance other than is therein stated. Lamborn
v. National Park Bank of New York, 240 N.Y. 520, 148 N.E.
664, 665.
Line of Credit. See Line.
Personal Credit. Personal credit is that credit
which a person possesses as an individual, and
which is founded on the opinion entertained of
his character and business standing.
CREDIT. Fr. Credit in the English sense of the
term, or more particularly, the security for a
loan or advancement.
CREDIT FONCIER. A company or corporation
formed for the purpose of carrying out improve-
ments, by means of loans and advances on real
estate security.
CREDIT MOBILIER. A company or association
formed for carrying on a banking business or for
the construction of public works, building of rail-
roads, operation of mines, or other such enter-
prises, by means of loans or advances on the
security of personal property. Barrett v. Sav-
ings Inst., 64 N.J.Eq. 425, 54 A. 543.
CREDITED. The alternative to paid. Lynch-
burg Trust & Savings Bank v. Commissioner of
Internal Revenue, C.C.A.4, 68 F.2d 356, 358.
CREDITOR. A person to whom a debt is owing
by another person who is the "debtor." Wool-
verton v. Taylor Co., 43 Ill.App. 424; Insurance
Co. v. Meeker, 37 N.J.Law. 300; Walsh v. Miller,
51 Ohio St. 462, 38 N.E. 381; Rooney v. Inheri-
tance Tax Commission of Kansas, 143 Kan. 143,
53 P.2d 500, 501. One who has a right to require
the fulfillment of an obligation or contract. Mohr
v. Minnesota Elevator Co., 40 Minn. 343, 41 N.W.
1074; Murphy v. Jos. Hollander, Inc., 131 N.J.L.
165, 34 A.2d 780, 783; one to whom money is due,
and, in ordinary acceptation, has reference to
financial or business transactions. State v. Ord
State Bank, 117 Neb. 189, 220 N.W. 265, 266; The
antonym of "debtor." Erickson v. Grande Ronde
Lumber Co., 162 Or. 556, 92 P.2d 170, 177; The
word is susceptible of latitudinous construction.
Commerce Trust Co. v. Farmers' Exchange Bank
of Gallatin, 332 Mo. 979, 61 S.W.2d 928, 89 A.L.R.
373.
The foregoing is the strict legal sense of the term; but
in a wider sense it means one who has a legal right to
demand and recover from another a sum of money on any
account whatever, and hence may include the owner of any
right of action against another, whether arising on con-
tract or for a tort, a penalty, or a forfeiture. Bongard v.
Block, 81 Ill. 186, 25 Am.Rep. 276; one having a claim for
tort, Chalmers v. Sheehy, 132 Cal. 459, 64 P. 709, 84 Am.St.
Rep. 62; an antenuptial agreement as constituting wife a
"creditor" of husband's estate. In re Wilson's Estate, 346
Pa. 562, 31 A.2d 106, 108; parties claiming as trust funds
deposits in insolvent bank, Dewey v. Commercial State
Bank, 141 Kan. 356, 41 P.2d 1006, 1007.
The term "creditor," within the common-law and stat-
utes that conveyances with intent to defraud creditors shall
be void, includes every one having right to require the
performance of any legal obligation, contract, or guaranty,
or a legal right to damages growing out of contract or tort,
Hernton v. Short, 121 Ark. 383, 181 S.W. 142, 144; and
includes not merely the holder of a fixed and certain pres-
ent debt, but every one having a right to require the per-
formance of any legal obligation, contract, or guaranty, or
a legal right to damages growing out of contract or tort,
and includes one entitled to damages for breach of contract
to convey real estate, notwithstanding the abandonment of
his action for specific performance, In re Littleton's Estate,
223 N.Y.S. 470, 479, 129 Misc.Rep. 845; Mackenzie Oil Co.
v. Omar Oil & Gas Co., 14 Del.Ch. 36, 120 A. 852, 854;
holders of judgment for conversion, Bays v. Brown, 160 Or.
594, 86 P.2d 951, 954; a "person having any claim, whether
matured or unmatured, liquidated or unliquidated, abso-
lute, fixed or contingent." Richards v. Jones, 16 Del.Ch.
227, 142 A. 832, 833. Those having a cause of action for
damages for wrongful death. Evers v. Evers, 146 Neb. 104,
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CREDITOR
18 N.W.2d 673, 678; in its broad sense the word "creditor"
means one who has any legal liability upon a contract,
express or implied, or in tort; in its narrow sense, the
term is limited to one who holds a demand which is certain
and liquidated.  Superior Plating Works v. Art Metal
Crafts Co., 218 Ill. App. 148, 150.
Plaintiff, in action to recover damages for a tort commit-
ted against him, is a "creditor" of defendant, within mean-
ing of that term as it is employed in Shannon's Code, §
3143, denouncing conveyances and transfers of property col-
lusively made with intent to delay, hinder, or defraud
creditors. Oliphant v. Moore, 155 Tenn, 359, 293 S. W. 541,
542.
In statutes the term has various special meanings,
dependent upon context, purpose of statute, etc. Toof v.
City Nat. Bank of Paducah, Ky., C.C.A.Ky., 206 F. 250, 252;
a bank taking chattel mortgage for pre-existing debt.
Lindig v. Johnson City State Bank, Tex.Com.App., 41
S.W.2d 222, 224. An assignee of conditional seller taking
trucks as creditor of purchaser, John W. Snyder, Inc., v.
Aker, 134 Misc. 721, 236 N.Y.S. 28, 30. One who had recov-
ered verdict against principal on attachment bond, Amer
Realty Co. v. Spack, 280 Mass. 96, 181 N; E. 753, 754; the
receiver of an insolvent national bank suing to enforce
statutory stockholder's liability for benefit of creditors as
a "creditor", Coffey v. Fisher, C.C.A.Tenn., 100 F.2d 51,
33; person to whom letters of administration granted.
State ex rel. Gentry v. O' Byrne, 221 Ind. 282, 46 N.E.2d
687, 690. One, seeking to recover from a special adminis-
trator for conversion, United States Fidelity & Guaranty
Co. v. Krow, 184 Okl. 444, 87 P.2d 950, 954; holders of
participation certificates in mortgage, In re R. A. Security
Holdings, D.C.N.Y., 46 F.Supp. 254, 255; persons who seize
property under a legal process. Neils v. Bohlsen, 181 Minn.
25, 231 N.W. 248; state and political subdivisions, to which
the forfeit is payable, International Harvester Co. v. Gully,
188 Miss. 115, 194 So. 472, 473. The National Labor Rela-
tions Board, seeking enforcement of a back pay allowance,
National Labor Relations Board v. Killoren, C.C.A.Mo., 122
F.2d 609, 612. The United States which filed for record,
Underwood v. United States, D.C.Tex., 37 F.Supp. 824, 826.
The Reconstruction Finance Corporation, which had pur-
chased over 86 per cent. of outstanding bonds of insolvent
irrigation district, pursuant to plan to refinance entire
bond indebtedness of district, West Coast Life Ins. Co. v.
Merced Irr, Dist., C.C.A.Cal., 114 F.2d 654, 668, 669.
Classification
A creditor is called a "simple contract creditor,"
a "specialty creditor," a "bond creditor," or other-
wise, according to the nature of the obligation giv-
ing rise to the debt.
Attaching creditor,
One who has caused an attachment to be issued
and levied on property of his debtor.
Catholic creditor
In Scotch law, one whose debt is secured on all
or on several distinct parts of the debtor's prop-
erty. The contracted term (designating one who
is not so secured) is "secondary creditor."
Certificate creditor
A creditor of a municipal corporation who re-
ceives a certificate of indebtedness for the amount
of his claim, there being no funds on hand to
pay him. Johnson v. New Orleans, 46 La.Ann.
714, 15 So. 100.
Confidential 'creditor
A term sometimes applied to creditors of a
failing debtor who furnished him with the means
of obtaining credit to which his real circumstan-
ces did not entitle him, thus involving loss to
other creditors not in his confidence. Gay v.
Strickland, 112 Ala. 567, 20 So. 921.
Creditor at large
One who has not established his debt by the
recovery of a judgment or has not otherwise
secured a lien on any of the debtor's property.
U. S. v. Ingate, C.C.Ala., 48 F. 254; Wolcott v.
Ashenfelter, 5 N.M. 442, 23 P. 780, 8 L.R.A. 691.
Domestic creditor
One who resides in the same state or country
in which the debtor has his domicile or his prop-
erty.
Double creditor
See Double Creditor.
Execution creditor
One who, having recovered a judgment against
the debtor for his debt or claim, has also caused
an execution to be issued thereon. Chalmers &
Williams v. Surprise, 70 Ind.App. 646, 123 N.E.
841, 844.
Executor creditor
In Scotch law. A creditor of a decedent who
obtains a grant of administration on the estate,
at least to the extent of so much of it as will be
sufficient to discharge his debt, when the execu-
tor named in the will has declined to serve, as
also those other persons who would be preferen-
tially entitled to administer.
Existing creditors
See Existing Creditors.
Foreign creditor
One who resides in a state or country foreign
to that where the debtor has his domicile or his
property.
General creditor
A creditor at large (supra), or one who has no
lien or security for the payment of his debt or
claim. Wolcott v. Ashenfelter, 5 N.M. 442, 23 P.
780, 8 L.R.A. 691.
Joint creditors
Persons jointly entitled to require satisfaction.
of the same debt or demand.
Judgment creditor
See Judgment Creditor.
Junior creditor
One whose claim or demand accrued at a date
later than that of a claim or demand held by
another creditor, who is called correlatively the
"senior" creditor.
Petitioning creditors
As used in Bankruptcy Act, § 64b, 11 U.S.C.A.
§ 104, authorizing one reasonable attorney's fee.
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CREDITS
All creditors petitioning for adjudication, or seek-
ing relief consistent with original petition by sup-
plemental or intervening petition, in view of sec-
tion 59f, 11 U.S.C.A. § 95. In re Marcuse & Co.,
C.C.A.Il1., 11 F.2d 513, 516.
Principal creditor
One whose claim or demand very greatly ex-
ceeds the claims of all other creditors in amount
is sometimes so called. See In re Sullivan's Es-
tate, 25 Wash. 430, 65 P. 793.
Secured creditor
See Secured Creditor.
Single creditor
See Single Creditor.
Subsequent creditor
One whose claim or demand accrued or came
into existence after a given fact or transaction,
such as the recording of a deed or mortgage or
the execution of a voluntary conveyance. McGhee
v. Wells, 57 S.C. 280, 35 S.E. 529, 76 Am.St.Rep.
567.
Warrant creditor
A creditor of a municipal corporation to whom
is given a municipal warrant for the amount of
his claim, because there are no funds in hand to
pay it. Johnson v. New Orleans, 46 La.Ann. 714,
15 So. 100.
CREDITOR BENEFICIARY. A third person to
whom performance of promise comes in satisfac-
tion of legal duty. Breaux v. Banker, Tex.Civ.
App., 107 S.W.2d 382, 389; Vail v. Reuben H. Don-
nelley Corporation, 56 Ohio App. 219, 10 N.E.2d
239, 241.
Company transporting material for school building under
contract with subcontractor. J. T. Jackson Lumber Co. v.
Union Transfer & Storage Co., 246 Ky. 653, 55 S.W.2d 670.
Person entitled to enforce contract under which he is enti-
tled to benefit. Hartman Ranch Co. v. Associated Oil Co.,
10 Ca1.2d 232, '73 P.2d 1163, 1169. Situation in which rela-
tionship between promisee and beneficiary is that of debtor
and creditor.  McCulloch v. Canadian Pac. Ry. Co.,
D.C.Minn., 53 F.Supp. 534, 542.
The lessor has a right of action for breach of parent lease
as a "creditor beneficiary" against a sublessee or an
assignee of the lease who has agreed with the original
lessee to assume the parent lease. Hartman Ranch Co. v.
Associated Oil Co., 10 CaL2d 232, 73 P.2d 1163.
CREDITORS' BILL OR SUIT.
A suit by judgment creditor in equity for pur-
pose of reaching property which cannot be reach-
ed by execution at law. B. L. E. Realty Corpora-
tion v. Mary Williams Co., 101 Fla. 254, 134 So.
47, 49; Ex parte Roddey, 171 S.C. 489, 172 S.E.
866, 868, 92 A.L.R. 1430; Hamburger Apparel Co.
v. Werner, 17 Wash.2d 310, 135 P.2d 311, 315;
City of Newark v. Jos. Hollander, Inc., 136 N.J.
Eq. 539, 42 A.2d 872, 875. A proceeding to en-
force the security of a judgment creditor against
the property or interests of his debtor. This ac-
tion proceeds upon the theory that the judgment
is in the nature of a lien, such as may be en-
forced in equity. Hudson v. Wood, C.C.Ky., 119
F. 775; Fink v. Patterson, C.C.Va., 21 F. 602;
W. G. Press & Co. v. Fahy, 313 Ill. 262, 145 N.E,
103, 104; San Bernardino County Sa y . Bank v.
Denman, 186 Cal. 710, 200 P. 606, 609; Harkin v.
Brundage, 276 U.S. 36, 48 S.Ct. 268, 72 L.Ed. 457.
Strictly, it is a bill by which a creditor seeks to satisfy
his debt out of some equitable estate of the defendant,
which is not liable to levy and sale under an execution at
law. But there is another sort of a creditors' bill, very
nearly allied to the former, by means of which a party
seeks to remove a fraudulent conveyance out of the way of
his execution. But a naked bill to set aside a fraudulent
deed, which seeks no discovery of any property, chose in
action, or other thing alleged to belong to the defendant,
and which ought to be subjected to the payment of the
judgment, is not a creditors' bill. Newman v. Willetts, 52
Ill. 98; Yates v. Council, 137 Miss. 381, 102 So. 176, 177.
A "class action" is one in which one or more members
of a numerous class, having a common interest, may sue
in behalf of themselves and all other members of the
class and such actions are sometimes called "creditors'
suits" and "stockholders' suits". Farmers Co-op. Oil Co.
v. Socony-Vacuum Oil Co., D.C.Iowa, 43 F.Supp. 735, 737.
In English Practice, a bill in equity, filed by one or more
creditors, for an account of the assets of a decedent, and
a legal settlement and distribution of his estate among
themselves and such other creditors as may come in under
the decree.
CREDITORUM APPELLATIONE NON III TAN-
TUM ACCIPIUNTUR QUI PECUNIAM CRED-
IDERUNT, SED OMNES QUIBUS EX QUALIBET
CAUSA DEBETUR. Under the head of "cred-
itors" are included, not alone those who have lent
money, but all to whom from any cause a debt
is owing. Dig. 50, 16, 11.
CREDITRIX. A female creditor.
CREDITS. A term of universal application to
obligations due and to become due. Colbert v.
Superior Confection Co., 154 Okl. 28, 6 P.2d 791,
793.
A term used in taxation statutes to designate
certain forms of personal property. It includes
every claim and demand for money and every
sum of money receivable at stated periods, due
or to become due, but not unaccrued rents to
issue out of land. State v. Royal Mineral Ass'n,
132 Minn. 232, 156 N.W. 128, 130, Ann.Cas.1918A,
145. Legacies matured by the lapse of one year
from the date of testator's death were included
in term "credits". City of Newark v. Lehman's
Estate, Tax App., 18 N.J.Misc. 510, 14 A.2d 792,
794. Shares of corporate stock were included.
Holmes v. Borgen, 200 Minn. 97, 273 N.W. 623,
626.
Mutual Credits
In bankrupt law. Credits which must, from
their nature, terminate in debts; as where a debt
is due from one party, and credit given by him
to the other for a sum of money payable at a
future day, and which will then become a debt.,
or where there is a debt on one side, and a deliv-
ery of property with directions to turn it into
money on the other. 8 Taunt. 499; 2 Smith, Lead.
Cas. 179. By this phrase, in the rule under which
courts of equity allow set-off in cases of mutual
credit, we are to understand a knowledge on both
sides of an existing debt due to one party, and
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CREED
a credit by the other party, founded on and trust-
ing to such debt, as a means of discharging it.
King v. King, 9 N.J.Eq. 44. Credits given by two
persons mutually; i. e., each giving credit to the
other. It is a more extensive phrase than "mu-
tual debts." Thus, the sum credited by one may
be due at once, that by the other payable in fu-
turo; yet the credits are mutual, though the trans-
action would not come within the meaning of
"mutual debts." 1 Atk. 230; Atkinson v. Elliott,
7 Term.R. 378.
CREED. The word "creed" has been defined as
"confession or articles of faith," "formal declara-
tion of religious belief," "any formula or confes-
sion of religious faith," and "a system of religious
belief." Cummings v. Weinfeld, 177 Misc. 129, 30
N.Y.S.2d 36, 38.
CREEK. In maritime law. Such little inlets of
the sea, whether within the precinct or extent of
a port or without, as are narrow passages, and
have shore on each side of them. Call.Sew. 56.
A small stream less than a river. Baker v. City
of Boston, 12 Pick. 184, 22 Am.Dec. 421. The
term imports a recess, cove, bay, or inlet in the
shore of a river, and not a separate or independ-
ent stream; though it is sometimes used in the
latter meaning. Schermerhorn v. Railroad Co.,
38 N.Y. 103.
CREMATION. The act or practice of reducing a
corpse to ashes by means of fire. Act Pa. 1891,
June 8; P.L. 212, 35 P.S. §§ 1121-1123; L.R. 12
Q.B.D. 247; L.R. 20 Ch.D. 659. See 43 Alb.L.J. 140.
See Dead Body.
CREMENTUM COMITATUS. The increase of a
county. The sheriffs of counties anciently an-
swered in their accounts for the improvement of
the king's rents, above the viscontiel rents, under
this title.
CREPARE OCULUM. In Saxon law. To put
out an eye; which had a pecuniary punishment
of fifty shillings annexed to it.
CREPUSCULUM. Twilight. In the law of burg-
lary, this terms means the presence of sufficient
light to discern the face of a man; such light as
exists immediately before the rising of the sun or
directly after its setting. 4 Bla.Com. 224; Co. 3d
Inst. 63; 1 Russell, Cr. 820; 3 Greenl.Ev. § 75.
CRESCENTE MALITIA CRESCERE DEBET ET
PLENA. 2 Inst. 479. Vice increasing, punishment
ought also to increase.
CREST. A term used in heraldry; it signifies
the devices set over a coat of arms.
CRETINISM. In medical jurisprudence. A form
of imperfect or arrested mental development,
which may amount to idiocy, with physical de-
generacy or deformity or lack of development;
endemic in Switzerland and some other parts of
Europe, but the term is applied to similar states
occurring elsewhere.
CRETINUS. In old records. A sudden stream
or torrent; a rising or inundation.
CRETIO. Lat. In the civil law. A certain num-
ber of days allowed an heir to deliberate whether
he would take the inheritance or not. Calvin.
CREW. Usually referred to and is primarily
thought of as those who are on board and aiding
in the navigation. Gulf Oil Corporation v. Mc-
D.C.W.Va., 49 F.Supp. 75, 78; Norton
v. Warner Co., Pa., 321 U.S. 565, 64 S.Ct. 747, 751,
88 L.Ed. 931; Berwind-White Coal Mining Co. v.
Rothensies, C.C.A.Pa., 137 F.2d 60, 62. "Crew"
does not have an absolutely unvarying legal sig-
nificance or any well-defined factual significance.
Schantz v. American Dredging Co., C.C.A.Pa., 138
F.2d 534, 537. The aggregate of seamen who man
a ship or vessel, including the master and officers;
or it may mean the ship's company, exclusive of
the master, or exclusive of the master and all
other officers. See U. S. v. Winn, 3 Sumn. 209,
28 Fed.Cas. 733; The Buena Ventura, D.C.N.Y.,
243 F. 797, 799; The Herdis, D.C.Md., 22 F.2d 304,
306.
CREW LIST. In maritime law. A list of the
crew of a vessel; one of a ship's papers. This
instrument is required by act of congress, and
sometimes by treaties. Rev.St.U.S. §§ 4374, 4375,
46 U.S.C.A. §§ 322, 323. It is necessary for the
protection of the crews of every vessel, in the
course of the voyage, during a war abroad. Jac.
Sea Laws, 66, 69, note.
CRIER. An officer of a court, who makes proc-
lamations. His principal duties are to announce
the opening of the court and its adjournment and
the fact that certain special matters are about to
be transacted, to announce the admission of per-
sons to the bar, to call the names of jurors, wit-
nesses, and parties, to announce that a witness
has been sworn, to proclaim silence when so di-
rected, and generally to make such proclamations
of a public nature as the judges order.
CRIEZ LA PEEZ. Rehearse the concord, or
peace. A phrase used in the ancient proceedings
for levying fines. It was the form of words by
which the justice before whom the parties ap-
peared directed the serjeant or countor in attend..
ance to recite or read aloud the concord or agree-
ment between the parties, as to the lands intend-
ed to be conveyed. 2 Reeve, Eng.Law, 224, 225.
CRIM. CON. An abbreviation for "criminal con-
versation," of very frequent use, denoting adult-
ery. Rash v. Pratt, 111 A. 225, 228, 1 W.W.Harr.,
Del., 18; Hargraves v. Ballou, 47 R.I. 186, 131 A.
643, 645.
The term in its general and comprehensive sense, is syn-
onymous with "adultery" ; but in its more limited and
technical signification it may be defined as adultery in the
aspect of a tort. Turner v. Heavrin, 182 Ky. 65, 206 S.W.
23, 4 A.L.R. 562.
CRIME. A positive or negative act in violation
of penal law; an offense against the State. Wil-
kins v. U. S., C.C.A.Pa., 96 F. 837, 37 C.C.A. 588;
People v. Williams, 24 Mich. 163, 9 Am.Rep. 119.
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CRIME
"Crime" and "misdemeanor," properly speaking,
are synonymous terms; though in common usage
"crime" is made to denote such offenses as are of
a deeper and more atrocious dye. 4 Bl.Comm. 5;
People v. Schiaffino, 73. Cal.App. 357, 238 P. 725;
Guetling v. State, 199 Ind. 630, 158 N.E. 593, 594;
McIntyre v. Commonwealth, 154 Ky. 149, 156 S.
W. 1058, 1059; Commonwealth v. Smith, 266 Pa.
511, 109 A. 786, 788, 9 A.L.R. 922; Ex parte Brady,
116 Ohio St. 512, 157 N.E. 69, 70; An act com-
mitted or omitted in violation of a public law.
City of Mobile v. McCown Oil Co., 226 Ala. 688,
148 So. 402, 405. Crimes are those wrongs which
the government notices as injurious to the pub-
lic, and punishes in what is called a "criminal
proceeding," in its own name. 1 Bish.Crim.Law,
§ 43; In re Jacoby, 74 Ohio App. 147, 57 N.E.2d
932, 934, 935. A crime may be defined to be any
act • done in violation of those duties which an
individual owes to the community, and for the
breach of which the law has provided that the
offender shall make satisfaction to the public.
Bell. A crime or public offense is an act com-
mitted or omitted in violation of a law forbidding
or commanding it, and to which is annexed, upon
conviction, either of the following punishments:
(1) Death; (2) imprisonment; (3) fine; (4) re-
moval from office; or (5) disqualification to hold
and enjoy any office of honor, trust, or profit in
this state. Pen.Code Cal. § 15. "Crime" is strict-
ly a violation of law either human or divine; in
present usage the term is commonly applied to
grave offenses against the laws of the state. Van
Riper v. Constitutional Government League, 1
Wash.2d 635, 96 P.2d 588, 591, 125 A.L.R. 1100.
A crime or misdemeanor shall consist in a viola-
tion of a public law, in the commission of which
there shall be a union or joint operation of act
and intention, or criminal negligence. Code Ga.
1882, § 4292, Pen.Code 1910, § 31.
Synonyms
According to Blackstone, the word "crime" de-
notes such offenses as are of a deeper and more
atrocious dye, while smaller faults and omissions
of less consequence are called "misdemeanors."
But the better use appears to be to make crime
a term of broad and general import, including
both felonies and misdemeanors, and hence cov-
ering all infractions of the criminal law. In this
sense it is not a technical phrase, strictly speak-
ing, (as "felony" and "misdemeanor" are,) but a
convenient general term. In this sense, also, "of-
fense" or "public offense" should be used as syn-
onymous with it.
The distinction between a crime and a tort or
civil injury is that the former is a breach and
violation of the public right and of duties due to
the whole community considered as such, and
in its social and aggregate capacity; whereas the
latter is an infringement or privation of the civil
rights of individuals merely. Brown.
A crime, as opposed to a civil injury, is the
violation of a right, considered in reference to the
evil tendency of such violation, as regards the
community at large. 4 Steph.Comm. 4.
Varieties of Crimes
Capital crime. See Capital, adj.
Common law crimes
Such crimes as are punishable by the force of
the common law, as distinguished from crimes
created by statute. Wilkins v. U. S., C.C.A.Pa.,
96 F. 837, 37 C.C.A. 588; In re Greene, C.C.Ohio, 52
F. 111. These decisions (and many others) hold
that there are no common-law crimes against
the United States.
Constructive crime
See Constructive Crime.
Continuous crime
One consisting of a continuous series of acts,
which endures after the period of consummation,
as, the offense of carrying concealed weapons. In
the case of instantaneous crimes, the statute of
limitations begins to run with the consummation,
while in the case of continuous crimes it only
begins with the cessation of the criminal conduct
or act. U. S. v. Owen, D.C.Or., 32 F. 537.
Crime against nature
The offense of buggery or sodomy. State v.
Vicknair, 52 La.Ann. 1921, 28 So. 273; Ausman v.
Veal, 10 Ind. 355, 71 Am.Dec. 331. The strict com-
mon-law meaning has been greatly enlarged by
statute. Borden v. State, 3G Okl.Cr. 69, 252 P.
446, 447; State v. Murry, 136 La. 253, 66 So. 963,
964; State v. Long, 133 La. 580, 63 So. 180; Fraz-
ier v. Grob, 194 Mo.App. 405, 183 S.W. 1083, 1084;
State v. Griffin, 175 N.C. 767, 94 S.E. 678, 679. See
Bestiality; Sodomy.
At common law the term "crime against nature"
embraced both sodomy and "bestiality", defined as a con-
nection between a human being and a brute of the opposite
sex. State v. Poole, 59 Ariz. 44, 122 P.2d 415, 416. Within
the statute it is the perverted act of uniting the mouth of
one participant with the sexual organ of the other, with a
view of gratifying the sexual desire, and a mere kiss or
lick of the private organ, even though lewdly done, is not
a "copulation" within the statute. People v. Angier, 44
Cal.App.2d 417, 112 P.2d 659, 660.
Crime against the other (husband or wife)
As used in 22 Okl.St.Ann. 702, providing that
neither husband nor wife shall be a witness
against the other except in a prosecution for a
"crime committed against the other," the phrase
denotes a public offense by husband or wife that
is a direct violation of the rights of the other.
Hunter v. State, 10 Okl.Cr. 119, 134 P. 1134, 1136,
L.R.A. 1915A, 564. It does not make the wife a
competent witness in a prosecution against the
husband for incest. Lacey v. State, 27 Okl.Cr. 42,
224 P. 994, 995.
Murder by wife of husband's child, O'Loughlin v. Peo-
ple, 90 Colo. 368, 10 P.2d 543, 546. Rape against stepdaugh-
ter. State v. Goff, 64 S.D. 80, 264 N.W. 665, 666.
Crimes mala in se
"Crimes mala in se" embrace acts immoral or
wrong in themselves, such as burglary, larceny,
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CRIME
arson, rape, murder, and breaches of peace. Cole-
man v. State ex rel. Carver, 119 Fla. 653, 161 So.
89, 90.
Crimes mala prohibita
"Crimes mala prohibita" embrace things pro-
hibited by statute as infringing on others' rights,
though no moral turpitude may attach, and con-
stituting crimes only because they are so prohib-
ited. Coleman v. State ex rel. Carver, 119 Fla.
653, 161 So. 89, 90.
High crimes
High crimes and misdemeanors are such im-
moral and unlawful acts as are nearly allied and
equal in guilt to felony, yet, owing to some tech-
nical circumstance, do not fall within the defini-
tion of "felony." State v. Knapp, 6 Conn. 417, 16
Am.Dec. 68. They are the more serious or ag-
gravated misdemeanors; those more nearly allied
and equal in guilt to felony, but which do not fall
within its definition. Firmara v. Gardner, 86
Conn. 434, 85 A. 670, 672.
Infamous crime
A crime which entails infamy upon one who
has committed it. Butler v. Wentworth, 84 Me.
25, 24 A. 456, 17 L.R.A. 764. The term "infamous"
e., without fame or good report—was applied
at common law to certain crimes, upon the con-
viction of which a person became incompetent to
testify as a witness, upon the theory that a per-
son would not commit so heinous a crime unless
he was so depraved as to be unworthy of credit.
These crimes are treason, felony, and the crimen
_Nisi. Abbott. A crime punishable by imprison-
ment in the state prison or penitentiary, with or
without hard labor, is an infamous crime, within
the provision of the fifth amendment of the con-
stitution that "no person shall be held to answer
for a capital or otherwise infamous crime unless
on a presentment or indictment of a grand jury."
Mackin v. U. S., 117 U.S. 348, 6 S.Ct. 777, 29 L.
Ed. 909; Brede v. Powers, 263 U.S. 4, 44 S.Ct. 8,
68 L.Ed. 132. It is not the character of the crime
but the nature of the punishment which renders
the crime "infamous." Weeks v. United States,
C.C.A.N.Y., 216 F. 292, 298, L.R.A. 1915B, 651. But
see Drazen v. New Haven Taxicab Co., 95 Conn.
500, 111 A. 861, 864. Whether an offense is in-
famous depends on the punishment which may be
imposed therefor, not on the punishment which
was imposed. United States v. Moreland, 258 U.S.
433, 42 S.Ct. 368, 370, 66 L.Ed. 700; De Jianne v.
U. S., C.C.A.N.J., 282 F. 737, 740; Le Clair v. White,
117 Me. 335, 104 A. 516, 517. Under the constitu-
tion of Rhode Island, a crime, to be "infamous,"
must come within the "crimen falsi," such as forg-
ery, perjury, subornation of perjury, offenses af-
fecting the public administration of justice, or
such as would affect civil or political rights, dis-
qualifying or rendering a person incompetent to
be a witness or juror. State v. Bussay, 38 R.I.
454, 96 A. 337, 339. By the Revised Statutes of
New York the term "infamous crime," when used
in any statute, is directed to be construed as in-
cluding every offense punishable with death or
by imprisonment in a state prison, and no other.
Quasi crimes
This term embraces all offenses not crimes or
misdemeanors, but that are in the nature of
crimes,—a class of offenses against the public
which have not been declared crimes, but wrongs
against the general or local public which it is
proper should be repressed or punished by for-
feitures and penalties. This would embrace all
qui tarn actions and forfeitures imposed for the
neglect or violation of a public duty. A quasi
crime would not embrace an indictable offense,
whatever might be its grade, but simply forfeit-
ures for a wrong done to the public, whether vol-
untary or involuntary, where a penalty is given,
whether recoverable by criminal or civil process.
Wiggins v. Chicago, 68 Ill. 375. Also, offenses for
which some person other than the actual per-
petrator is responsible, the perpetrator being pre-
sumed to act by command of the responsible par-
ty. Sometimes, injuries which have been unin-
tentionally caused. Torts. McCaleb v. Fox Film
Corporation, C.C.A.La., 299 F. 48, 50.
Statutory crimes
Those created by statutes, as distinguished from
such as are known to, or cognizable by, the com-
mon law.
CRIMEN. Lat. Crime. Also an accusation or
charge of crime.
Crimen furti. The crime or offense of theft.
Crimen incendii. The crime of burning, which
included not only the modern crime of arson, but
also the burning of a man, a beast, or other chat-
tel. Britt. c. 9; Crabb, Eng.Law, 308.
Crimen innominatum. The nameless crime;
the crime against nature; sodomy or buggery.
Crimen raptus. The crime of rape.
Crimen roberix. The offense of robbery.
Flagrans crimen; Locus criminis; Particeps
criminis. See those titles.
CRIMEN FALSI. The term involves the element
of falsehood, and includes everything which has
a tendency to injuriously affect the administra-
tion of justice by the introduction of falsehood
and fraud. Commonwealth v. Schambers, 110 Pa.
Super. 61, 167 A. 645, 646; Commonwealth v. Jones,
334 Pa. 321, 5 A.2d 804, 805. A crime less than
felony that by its nature tends to cast doubt on
the veracity of one who commits it. Common-
wealth v. Gold, 155 Pa.Super. 364, 38 A.2d 486,
489. This phrase is also used as a general desig-
nation of a class of offenses, including all such
as involve deceit or falsification; e. g., forgery,
counterfeiting, using false weights or measures,
perjury, etc. Includes forgery, perjury, suborna-
tion of perjury, and offenses affecting the public
administration of justice. Matzenbaugh v. Peo-
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CRIMINAL
ple, 194 Ill. 108, 62 N.E. 546, 88 Am.St.Rep. 134;
Johnston v. Riley, 13 Ga. 97.
At common law. Any crime which rendered the perpe-
trator incompetent to be a witness, such as forgery, per-
jury, subornation of perjury and other crimes affecting the
administration of justice. Drazen v. New Haven Taxicab
Co., 95 Conn. 500, 111 A. 861, 862; Maxey v. United States,
C.C.A.Ark., 207 F. 327, 331; Webb v. State, 29 Ohio St. 351,
358.
In the civil law, the crime of falsifying; which might
be committed either by writing, as by the forgery of a will
or other instrument; by words, as by bearing false wit-
ness. or perjury; and by acts, as by counterfeiting or
adulterating the public money, dealing with false weights
and measures, counterfeiting seals, and other fraudulent
and deceitful practices. Dig. 48, 10; Hallifax, Civil Law,
b. 3, c. 12, nn. 56-59.
In Scotch law. It has been defined: "A fraudulent imi-
tation or suppression of truth, to the prejudice of
another." Ersk.Inst. 4, 4, 66.
CRIMEN FALSI DICITUR, CUM QUIS ILLICI-
TUS, CUI NON FUERIT AD IFEC DATA ATTC-
TORITAS, DE SIGILLO REGIS, RAPTO VEL
INVENTO, BREVIA, CARTASVE CONSIGNA-
VERIT. Fleta, lib. 1, c. 23. The crime of forgery
is when any one illicitly, to whom power has not
been given for such purposes, has signed writs or
charters with the king's seal, either stolen or
found.
CRIMEN LIESIE MAJESTATIS. In criminal
law. The crime of lese-majesty, or injuring
majesty or royalty; high treason. The term was
used by the older English law writers to denote
any crime affecting the king's person or dignity.
It is borrowed from the civil law, in which it
signified the undertaking of any enterprise
against the emperor or the republic. Inst. 4, 18,
3.
CRIMEN L1ESz zE MAJESTATIS OMNIA ALIA
atEVIINA EXCEDIT QUOAD PENAM. 3 Inst.
210. The crime of treason exceeds all other
crimes in its punishment.
CRIMEN OMNIA EX SE NATA VITIAT. Crime
vitiates everything which springs from it. Hen-
ry v. Bank of Salina, 5 Hill, N.Y., 523, 531.
CRIMEN TRAHIT PERSONAM. The crime car-
ries the person, (i. e., the commission of a crime
gives the courts of the place where it is com-
mitted jurisdiction over the person of the offend-
er.) People v. Adams, 3 Denio, N.Y. 190, 210, 45
Am.Dec. 468.
CRIMINA MORTE EXTINGUUNTUR. Crimes
are extinguished by death.
CRIMINAL, n. One who has committed a crim-
inal offense; one who has been legally convicted
of a crime; one adjudged guilty of crime. Mol-
ineux v. Collins, 177 N.Y. 395, 69 N.E. 727, 65 L.R.
A. 104. Synonymous with word "crook." Weiner
v. Leviton, 230 App.Div. 312, 244 N.Y.S. 176, 178.
CRIMINAL, adj. That which pertains to or is
connected with the law of crimes, or the admin-
istration of penal justice, or which relates to or
has the character of crime. Charleston v. Beller,
45 W.Va. 44, 30 S.E. 152; Van Riper v. Constitu-
tional Government League, 1 Wash.2d 635, 96 P.2d
588, 591, 125 A.L.R. 1100. The word is defined as
of the nature of or involving a crime; more gen-
erally, of the nature of a grave offense; wicked.
Van Riper v. Constitutional government League,
1 Wash.2d 635, 96 P.2d 588, 591, 125 A.L.R. 1100.
Criminal abortion
See Abortion.
Criminal act
A term which is equivalent to crime; or is
sometimes used with a slight softening or gloss-
ing of the meaning, or as importing a possible
question of the legal guilt of the deed. The in-
tentional violation of statute designed to protect
human life is criminal act. State v. Agnew, 202
N.C. 755, 164 S.E. 578, 579.
Criminal action
The proceeding by which a party charged with
a public offense is accused and brought to trial
and punishment is known as a "criminal action."
Pen.Code Cal. § 683. A criminal action is (1) an
action prosecuted by the state as a party, against
a person charged with a public offense, for the
punishment thereof ; (2) an action prosecuted by
the state, at the instance of an individual, to pre-
vent an apprehended crime, against his person
or property. Code N.C. 1883, § 129, C.S. § 395.
Criminal assault and battery
An accused may be guilty of a "criminal as
sault and battery" if he intentionally does an
act which by reason of its wanton and grossly
negligent character exposes another to personal
injury and in fact causes injury. State v. Lin-
ville, 150 Kan. 617, 95 P.2d 332, 334.
Criminal case
An action, suit, or cause instituted to punish an
infraction of the criminal laws. State v. Smalls,
11 S.C. 279; People v. Iron Co., 201 Ill. 236, 66 N.
E. 349; Wilburn v. State, 140 Ga. 138, 78 S.E. 819,
820; Hankamer v. Templin, 143 Tex. 572, 187- S.
W.2d 549, 550. The phrase has various meanings
according to context and purpose of constitutional
provision or statute. Ex parte Tahbel, 46 Cal.
App. 755, 189 P. 804, 806; Childs v. City of Bir-
mingham, 19 Ala.App. 71, 94 So. 790; Barnett v..
Atlanta, 109 Ga. 166, 34 S.E. 322.
Criminal charge
An accusation of crime, formulated in a written
complaint, information, or indictment, and taking
shape in a prosecution. U. S. v. Patterson, 150 U._
S. 65, 14 S.Ct. 20, 37 L.Ed. 999; Eason v. State, 11
Ark. 482; People v. Ross, 235 Mich. 433, 209 N.W.
663, 666.
Criminal contempt proceeding
"Criminal contempt proceedings" are brought
to preserve the power and vindicate the dignity
and integrity of the court and to punish for dis-
obedience of its orders. O'Malley v. United
States, C.C.A.Mo., 128 F.2d 676, 683.
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CRIMINAL
Criminal conversation
Defilement of the marriage bed, sexual inter-
course of an outsider with husband or wife, or a
breaking down of the covenant of fidelity. Young
v. Young, 236 Ala. 627, 184 So. 187, 190, 191. Adult-
ery, considered in its aspect of a civil injury to
the husband entitling him to damages; the tort
of debauching or seducing of a wife. Often ab-
breviated to crim. con.
Criminal court
One where criminal cases are tried and de-
termined, not one where civil cases are tried, or
persons charged with criminal offenses are held
for action by proper authority. Hobart v. First
Criminal Judicial Dist. of Court of Bergen Coun-
V, 10 N.J.Misc. 723, 160 A. 674, 675.
Criminal gross negligence
"Gross negligence" is culpable or criminal when
accompanied by acts of commission or omission,
of a wanton or willful nature, showing a reck-
less or indifferent disregard of the rights of oth-
ers, under circumstances reasonably calculated to
produce injury, or which make it not improbable
that injury will be occasioned, and the offender
knows or is charged with knowledge of the prob-
able result of his acts; "culpable" meaning de-
serving of blame or censure. Bell v. Common-
wealth, 170 Va. 597, 195 S.E. 675, 681.
Criminal information
A criminal suit brought, without interposition
of a grand jury, by the proper officer of the king
or state. Cole, Cr.Inf.; 4 Bla.Com. 398.
Criminal insanity
Want of mental capacity and moral freedom to
do or abstain from doing particular act. State v.
Schafer, 156 Wash. 240, 286 P. 833, 838.
Criminal instrumentality rule
Where the wrong is accomplished by a crime,
the crime and not the negligent act of the party
which made it possible is the "proximate cause".
Foutch v. Alexandria Bank & Trust Co., 177 Tenn.
348, 149 S.W.2d 76, 85.
Criminal intent
The intent to commit a crime; malice, as evi-
denced by a criminal act; an intent to deprive or
defraud the true owner of his property. People
v. Borden's Condensed Milk Co., 165 App.Div. 711,
151 N.Y.S. 547, 549; State v. Howard, 162 La. 719,
111 So. 72, 76.
Criminal malversation
A broad category of corrupt official practices.
Jimenez v. Aristeguieta, C.A.Fla., 311 F.2d 547,
562.
Criminal Motive
"Criminal motive" is the inducement, existing
in the minds of persons, causing them to intend,
and afterward to commit, crime. State v. Rich-
ardson, 197 Wash. 157, 84 P.2d 699, 703.
Criminal Procedure
The method pointed out by law for the appre-
hension, trial, or prosecution, and fixing the pun-
ishment, of those persons who have broken or
violated, or are supposed to have broken or vio-
lated, the laws prescribed for the regulation of
the conduct of the people of the community, and
who have thereby laid themselves liable to fine or
imprisonment or other punishment. 4 Amer. &
Eng. Enc. Law, 730.
Criminal Proceeding
One instituted and conducted for the purpose
either of preventing the commission of crime, or
for fixing the guilt of a crime already committed
and punishing the offender; as distinguished from
a "civil" proceeding, which is for the redress of
a private injury. Mossew v. United States, C.C.A.
N.Y., 266 F. 18, 22, 11 A.L.R. 1261. Strictly, a
"criminal proceeding" means some step taken be-
fore a court against some person or persons
charged with some violation of the criminal law.
McGoldrick v. Downs, 184 Misc. 168, 53 N.Y.S.2d
333, 336.
Criminal Process
Process which issues to compel a person to an-
swer for a crime or misdemeanor. Mowlan v.
State, 197 Ind. 517, 151 N.E. 416, 417. Also process
issued to aid in the detection or suppression of
crime, such as search warrants—the primary pur-
pose of the search being to obtain evidence for
use in a criminal prosecution. Sugar Valley Land
Co. v. Johnson, 17 Ala.App. 409, 85 So. 871, 874.
Criminal Prosecution
An action or proceeding instituted in a proper
court on behalf of the public, for the purpose of
securing the conviction and punishment of one ac-
cused of crime. Harger v. Thomas, 44 Pa. 128, 84
Am.Dec. 422; Ex parte Pepper, 185 Ala. 284, 64
So. 112, 113; State v. District Court of Fifth Ju-
dicial Dist. in and for Madison County, 53 Mont.
350, 165 P. 294, 296; McGoldrick v. Downs, 184
Misc. 168, 53 N.Y.S.2d 333, 336. A prosecution in a
court of justice, in name of the Government,
against one or more individuals accused of crime.
United States v. Safeway Stores, Tex., C.C.A.Kan.,
140 F.2d 834, 839.
As to criminal "Conspiracy," "Contempt," "In-
formation," "Jurisdiction," "Negligence," "Oper-
ation," see those titles.
CRIMINAL JURISDICTION. That which exists
for the trial and punishment of criminal offenses;
the authority by which judicial officers take cog-
nizance of and decide criminal cases. Ellison v.
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State, 125 Ind. 492, 24 N.E. 739; In re City of
Buffalo, 139 N.Y. 422, 34 N.E. 1103.
Criminal law
That branch or division of law which treats
of crimes and their punishments. In the plural—
"criminal laws"—the term may denote the laws
which define and prohibit the various species of
crimes and establish their punishments. U. S. v.
Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480;
Washington v. Dowling, 92 Fla. 601, 109 So. 588,
591.
CRIMINAL LAW AMENDMENT ACT. This act
was passed in 1871, 34 & 35 Vict. c. 32, to prevent
and punish any violence, threats, or molestation,
on the part either of master or workmen, in the
various relations arising between them. 4 Steph.
Comm. 241.
CRIMINAL LAW CONSOLIDATION ACT. The
statutes 24 & 25 Vict. cc. 94-100, passed in 1861,
for the consolidation of the criminal law of Eng-
land and Ireland. 4 Steph. Comm. 297. These
important statutes amount to a codification of the
modern criminal law of England.
CRDIINAL LETTERS. In Scotch law. A proc-
ess used as the commencement of a criminal pro-
ceeding, in the nature of a summons issued by the
lord advocate or his deputy. It resembles a crim-
inal information at common law.
CRIMINAL LIBEL. A libel which is punishable
criminally; one which tends to excite a breach
of the peace. 3 Greenl. Ev. § 164; Walker v.
Wickens, 49 Kan. 42, 30 P. 181; Kennerly v. Hen-
nessy, 68 Fla. 138, 66 So. 729, 19 A.L.R. 1468. The
malicious defamation of a person made public
by any printing or writing tending to provoke him
to wrath and to deprive him of the benefits of
public confidence and social intercourse.
CRIMINALIST. One versed in criminal law, one
addicted to criminality, and, also, a psychiatrist
dealing with criminality. People v. Taylor, 312
P.2d 731, 734, 152 C.A.2d 29; Douglas v. State, 163
So.2d 477, 486, 42 Ala.App. 314.
CRIMINALITER. Lat. Criminally. This term
is used, in distinction or opposition to the word
"civiliter," civilly, to distinguish a criminal liabil-
ity or prosecution from a civil one.
CRIMINATE. To charge one with crime; to fur-
nish ground for a criminal prosecution; to expose
a person to a criminal charge. A witness cannot
be compelled to answer any question which has
a tendency to criminate him. Stewart v. John-
son, 18 N.J.Law, 87; Kendrick v. Comm., 78 Va.
490.
CRIMINOLOGY. The science which treats of
crimes and their prevention and punishment.
CRIMP. One who decoys and plunders sailors
under cover of harboring them. Wharton.
CRIPPLING. The word "crippling" is equivalent
of words "physical disability" and is defined as to
deprive of use of limbs, particularly of leg or foot,
to deprive of strength, activity or capability for
service or use and to disable. People v. Lock-
wood, 308 Mich. 618, 14 N.W.2d 517, 518; Baker v.
Chicago, B. & Q. R. Co., 327 Mo. 986, 39 S.W.2d
535, 545.
CRITICISM. Permitted "criticism" as distin-
guished from "defamation" deals only with such
things as invite public comment, and does not fol-
low a public man into his private life, and pry
into his domestic concerns. Devany v. Shulman,
184 Misc. 613, 53 N.Y.S.2d 401, 403.
CRO, CR00. In old Scotch law. A weregild. A
composition, satisfaction, or assythment for the
slaughter of a man.
CROCIA. The crosier, or pastoral staff.
CROCIARIUS. A cross-bearer, who went before
the prelate. Wharton.
CROCKARDS, CROCARDS. A foreign coin of
base metal, prohibited by statute 27 Edw. I. St.
3, from being brought into the realm. 4 BL
Comm. 98; Crabb, Eng. Law, 176.
CROFT. A little close adjoining a dwelling-house,
and inclosed for pasture and tillage or any par-
ticular use. Jacob. A small place fenced off in
which to keep farm-cattle. Spelman. The word
is now entirely obsolete.
CROISES. Pilgrims; so called as wearing the
sign of the cross on their upper garments. Britt.
c. 122. The knights of the order of St. John of
Jerusalem, created for the defense of the pilgrims.
Cowell; Blount.
CROITEIR. A crofter; one holding a croft
CROOK. A person given to crooked or fraudu-
lent practices, a swindler, sharper, thief, forger,
or the like. Rubenstein v. Lee, 56 Ga.App. 49, 192
S.E. 85, 87; Sinclair Refining Co. v. Fuller, 190
Ark. 426, 79 S.W.2d 736, 739. Term "crook" has
been defined as a professional rogue; a criminal;
or one consorting with criminals; a person recog-
nized by the authorities as belonging to the crim-
inal class; swindler; sharp; cheat. Gaare v.
Melbostad, 186 Minn. 96, 242 N.W. 466, 467.
CROOKED. Deviating from rectitude or upright-
ness; not straightforward; dishonest; wrong;
perverse. A "crook" is a dishonest person; one
who is crooked in conduct; a tricky or underhand
schemer; a thief or swindler. Villemin v. Brown,
193 App.Div. 777, 184 N.Y.S. 570, 571; Pandolfo v.
Bank of Benson, C.C.A.Ariz., 273 F. 48, 51.
CROP. The products of the harvest; emble-
ments. Mutual Fire Insurance Co. v. Dehaven,
Pa., 5 A. 65; Verbeck v. Peters, 170 Iowa, 610, 153
N.W. 215, 216. Such products of the soil as, are
annually planted, severed, and saved by manual
labor, as cereals, vegetables, grass maturing for
harvest or harvested, etc., but not grass on lands
used for pasturage. Moore v. Hope Natural Gas
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CROP
Co., 76 W.Va. 649, 86 S.E. 564, 567. In its more
general signification, means all products of the
soil that are grown and raised annually and gath-
ered during a single season. In this sense the
term includes fructus industriales and fructus na-
turales. The word is also used, however, in a
more restricted sense, as synonymous with fruc-
tus industriales or emblements. Etymology of
word "crop" appears to be from the Saxon "crop"
or "cropp," which signified a cluster of ears of
corn or grapes; another derivation is from the
Welch "cropiad," which meant a fathering or tak-
ing hold of. It is from this derivation that the
word has been held to mean only products after
they have been severed from the soil. At times
a distinction has been drawn between fructus in-
dustriales and fructus naturales. Kennedy v.
Spalding, 143 Kan. 76, 53 P.2d 804, 806; Miethke
v. Pierce County, 173 Wash. 381, 23 P.2d 405; Wed-
dle v. Parrish, 135 Or. 345, 295 P. 454, 455.
In a broader sense, any product of the soil. Ellis,
McKinnon & Brown v. Hopps, 30 Ga.App. 453, 118 S.E. 583;
Buchanan v. Jencks, 38 R.I. 443, 96 A. 307, 309, 2 A.L.R.
986.
CROPPER. One who, having no interest in the
land, works it in consideration of receiving a por-
tion of the crop for his labor. Wood v. Garrison,
23 Ky.Law Rep. 295, 62 S.W. 728; Maltbie v. Olds,
88 Conn. 633, 92 A. 403, 405; Davis v. State, 84 Tex.
Cr.R. 282, 206 S.W. 690; Empire Gas & Fuel Co. v.
Denning, 128 Okl. 145, 261 P. 929, 930.
The difference between a tenant and a cropper
is: A tenant has an estate in the land for the
term, and, consequently, he has a right of prop-
erty in the crops. Until division, the right of
property and of possession in the whole is the
tenant's. A cropper has no estate in the land;
and, although he has in some sense the possession
of the crop, it is the possession of a servant only,
and is, in law, that of the landlord, who must
divide off to the cropper his share. Harrison v.
Ricks, 71 N.C. 7; O'Brien v. Webb, D.C.Cal., 279
F. 117, 120; Cook-Reynolds Co. v. Wilson, 67
Mont. 147, 214 P. 1104, 1105; Halsell v. First Nat.
Bank, 109 Okl. 220, 235 P. 532, 533; Gibbons v.
Huntsinger, 105 Mont. 562, 74 P.2d 443.
CROSS. A mark made by persons who are un-
able to write, to stand instead of a signature. A
mark usually in the form of an X, by which voters
are commonly required to express their selection.
There are four principal forms of the cross: The
St. Andrew's cross, which is made in the form of
an X ; the Latin cross, t, as used ih the cruci-
fixion; St. Anthony's cross, which is made in the
form of a T; and the Greek cross, +, which is
made by the intersection at right angles of lines
at their center point. Hunt v. Campbell, 19 Ariz.
254, 169 P. 596, 610.
As an adjective, the word is applied to various
demands and proceedings which are connected in
subject-matter, but opposite or contradictory in
purpose or object.
As a verb it means to pass or extend from one
side to the other, as to cross a stream. People
v. Hawkins, 51 Cal.App.2d Supp. 781, 124 P.2d
691, 692.
As to cross "Appeal," "Bill," "Complaint," "Re-
mainder," "Rules," see those titles.
CROSS-ACTION. An action brought by one who
is defendant in a suit against the party who is
plaintiff in such suit, upon a cause of action grow-
ing out of the same transaction which is there
in controversy, whether it be a contract or tort.
An independent suit brought by defendant against
plaintiff. National Stock Yards Nat. Bank v. Val-
entine, Tex.Civ.App., 39 S.W.2d 907, 908.
CROSS-CLAIM. A "cross-claim" is one brought
by a defendant against a plaintiff in the same ac-
tion or against a codefendant or both concerning
matters in question in the original petition, and
its purposes are to discover facts in aid of defense,
to bring in new matter in aid of defense, to obtain
some affirmative relief concerning matters in is-
sue, to obtain full relief for all parties and a com-
plete determination of all controversies arising out
of matters alleged in original petition, and to have
affirmative relief against either plaintiff or code-
fendant in the nature of an original petition. Farr
v. Detroit Trust Co., C.C.A.Mich., 116 F.2d 807,
811.
CROSS-DEMAND. Where a person against
whom a demand is made by another, in his turn
makes a demand against that other, these mutual
demands are called "cross-demands." A set-off is
a familiar example. Musselman v. Galligher, 32
Iowa, 383.
CROSS-ERRORS. Errors being assigned by the
respondent in a writ of error, the errors assigned
on both sides are called "cross-errors."
CROSS-EXAMINATION. In practice. The exam-
ination of a witness upon a trial or hearing, or
upon taking a deposition, by the party opposed to
the one who produced him, upon his evidence giv-
en in chief, to test its truth, to further develop it,
or for other purposes.
CROSS-LAY. The winding of the outer strands
of a rope in a reverse direction to the inner
strands, the "lay" of a strand of rope being the
length of rope within which such strand makes
one complete turn. Macomber & Whyte Rope Co.
v. Hazard Mfg. Co., C.C.A.N.Y., 211 F. 976, 977.
CROSS-SALE. Where a floor broker, holding or-
ders from different customers to buy and sell on
the same terms, cries out the transaction and
makes the sale and purchase to himself at the
price shown by the last sale shown on the ex-
change, the transaction is called a "cross-sale or
trade," and is illegal under rules of exchange, re-
quiring two brokers to every purchase or sale.
Cohen v. Rothschild, 182 App.Div. 408, 169 N.Y.S.
659, 664.
CROSSED CHECK. See Check.
CROSSING. A portion of a street over which pe-
destrians may lawfully cross from one side to
the other. Under Laws N.J.1915, P.L. p. 285, §
1, defining crossings to be all duly indicated cross-
ings, marked by pavement or otherwise, at inter-
section of streets, the most direct route across
the street from curb to curb is a "crossing," where
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CRUELTY
no paved crossing is there necessary. Ferris v.
McArdle, 92 N.J.Law, 580, 106 A. 460, 461.
With reference to railroads, that portion of the
right of way covered by intersection with a street
or highway. International-Great Northern R. Co.
v. Mallard, Tex.Civ.App., 262 S.W. 789, 791. In a
broader sense, the term includes embankments
constructed as necessary approaches to a railroad
track, St. Louis, I. M. & S. Ry. Co. v. Smith, 118
Ark. 72, 175 S.W. 415, 416, and approaches or
embankments reasonably necessary to enable
crossings or bridges to be used, Payne v. Stockton,
147 Ark. 598, 229 S.W. 44, 47. For "Farm Cross-
ing", see that title.
CROWD. "Crowd" is indefinite, since difference
in time and place may shape its meaning, but
there is always implied in the word numbers with
reference to the hour and location. People, on
Complaint of Liroff, v. Phillips, 245 N.Y. 401, 157
N.E. 508, 509.
CROWN. The sovereign power in a monarchy,
especially in relation to the punishment of crimes.
"Felony is an offense of the crown." Finch, Law,
b. 1, c. 16.
An ornamental badge of regal power worn on,
the head by sovereign princes. The word is fre-
quently used when speaking of the sovereign him-
self, or the rights, duties, and prerogatives belong-
ing to him. Also a silver coin of the value of five
shillings. Wharton.
The facings and backings made to be sold to
dentists to be set by them with appropriate fas-
tenings in the jaws of their patients, when so in
place are commonly called "crowns" or "artificial
crowns." S. S. White Dental Mfg. Co. v. Dental
Co. of America, D.C.Pa., 263 F. 719, 720.
Ship's crown is convex arc of vessel's deck from
side to side. The Indien, C.C.A.Cal., 71 F.2d 752,
757.
CROWN CASES. In English law. Criminal
prosecutions on behalf of the crown, as represent-
ing the public; causes in the criminal courts.
CROWN CASES RESERVED. In English law.
Questions of law arising in criminal trials at the
assizes, (otherwise than by way of demurrer,) and
not decided there, but reserved for the considera-
tion of the court of criminal appeal.
CROWN COURT. In English law. The court in
which the crown cases, or criminal business, of
the assizes is transacted.
CROWN DEBTS. In English law. Debts due to
the crown, which are put, by various statutes, up-
on a different footing from those due to a subject.
CROWN LANDS. The demesne lands of the
crown. In England and Canada, lands belonging
to the sovereign personally or to the government
or nation, as distinguished from such as have
passed into private ownership.
CROWN LAW. Criminal law in England is some-
times so termed, the crown being always the prose-
cutor in criminal proceedings. 4 Bl.Comm. 2.
CROWN OFFICE. The criminal side of the court
of king's bench. The king's attorney in this court
is called "master of the crown office." 4 Bl.Comm.
308.
CROWN OFFICE IN CHANCERY. One of the of-
fices of the English high court of chancery, now
transferred to the high court of justice. The prin-
cipal official, the clerk of the crown, is an officer of
parliament, and of the lord chancellor, in his non-
j udicial capacity, rather than an officer of the
courts of law.
CROWN PAPER. A paper containing the list of
criminal cases, which await the hearing or decision
of the court, and particularly of the court of king's
bench; and it then includes all cases arising from
informations quo warranto, criminal informations,
criminal cases brought up from inferior courts by
writ of certiorari, and cases from the sessions.
Brown.
CROWN SIDE. The criminal department of the
court of king's bench; the civil department or
branch being called the "plea side." 4 Bl.Comm.
265.
CROWN SOLICITOR. In England, the solicitor
to the treasury acts, in state prosecutions, as so-
licitor for the crown in preparing the prosecution.
In Ireland there are officers called "crown solici-
tors" attached to each circuit, whose duty it is to
get up every case for the crown in criminal prose-
cutions. They are paid by salaries. There is no
such system in England, where prosecutions are
conducted by solicitors appointed by the parish,
or other persons bound over to prosecute by the
magistrates on each committal; but in Scotland
the still better plan exists of a crown prosecutor
(called the "procurator-fiscal," and being a subor-
dinate of the lord-advocate) in every county, who
prepares every criminal prosecution. Wharton.
CROWNER. In old Scotch law. Coroner; a
coroner. "Crowner's quest," a coroner's inquest.
CROY. In old English law. Marsh land. Blount.
CRUCE SIGNATI. In old English law. Signed
or marked with a cross. Pilgrims to the holy land,
or crusaders; so called because they wore the
sign of the cross upon their garments. Spelman.
CRUDE. A flexible term depending largely on
context. In natural state; raw; unrefined; not
artificially altered; unfinished. U. S. v. Richard
& Co., 8 Ct.Cust.App. 304, 305; Nortmann-Duffke
v. Federal Crushed Stone Co., 167 Minn. 333, 209
N.W. 17, 18; Ishimitsu Co. v. U. S., 12 Ct.Cust.App.
477, 479.
CRUEL AND UNUSUAL PUNISHMENT. See
Punishment.
CRUELTY. The intentional and malicious inflic-
tion of physical suffering upon living creatures,
particularly human beings; or, as applied to the
latter, the wanton, malicious, and unnecessary
infliction of pain upon the body, or the feelings
and emotions; abusive treatment; inhumanity;
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CRUELTY
outrage. Jacobs v. Jacobs, 95 Conn. 57, 110 A.
455, 456. $
Chiefly used in the law of divorce, in such
phrases as "cruel and abusive treatment," "cruel
and barbarous treatment," or "cruel and inhuman
treatment," as to the meaning of which, and of
"cruelty" in this sense, see Rudnick v. Rudnick,
288 Mass. 256, 192 N.E. 501; Martin v. Martin, 154
Pa.Super. 313, 35 A.2d 546, 548; Price v. Price, 181
Miss. 539, 179 So. 855, 857; Campbell v. Campbell,
129 Pa.Super. 106, 194 A. 760, 763; Avdoyan v.
Avdoyan, 265 App.Div. 763, 40 N.Y.S.2d 665, 668;
Lowry v. Lowry, 170 Ga. 349, 153 S.E. 11, 14, 70
A.L.R. 488.
For "Extreme and Repeated Cruelty," see that
title.
As between husband and wife. Those acts which affect
the life, the health, or even the comfort, of the party
aggrieved and give a reasonable apprehension of bodily
hurt, are called "cruelty." What merely wounds the feel-
ings Is seldom admitted to be cruelty, unless the act be
accompanied with bodily injury, either actual or menaced.
Mere austerity of temper, petulance of manners, rudeness
of language, a want of civil attention and accommodation,
even occasional sallies of passion, will not amount to legal
cruelty; a fortiori, the denial of little indulgences and par-
ticular accommodations, which the delicacy of the world
is apt to number among its necessaries, is not cruelty. The
negative descriptions of cruelty are perhaps the best, under
the infinite variety of cases that may occur, by showing
what is not cruelty. Evans v. Evans, 1 Hagg.Const. 35;
Westmeath v. Westmeath, 4 Eng.Ecc. 238, 311, 312.
Cruelty includes both willfulness and malicious temper
of mind with which an act is done, as well as a high degree
of pain inflicted. Acts merely accidental, though they
inflict great pain, are not "cruel," in the sense of the word
as used in statutes against cruelty. Comm. v. McClellan,
101 Mass. 34.
Cruelty to Animals
The infliction of physical pain, suffering, or
death upon an animal, when not necessary for
purposes of training or discipline or (in the case
of death) to procure food or to release the animal
from incurable suffering, but done wantonly, for
mere sport, for the indulgence of a cruel and vin-
dictive temper, or with reckless indifference to its
pain. State v. Porter, 112 N.C. 887, 16 S.E. 915;
State v. Bosworth, 54 Conn. 1, 4 A. 248; McKinne
v. State, 81 Ga. 164, 9 S.E. 1091; Waters v. People,
23 Colo. 33, 46 P. 112, 33 L.R.A. 836,
Legal Cruelty
See Legal Cruelty.
CRUISE. A voyage undertaken for a given pur-
pose; a voyage for the purpose of making cap-
tures jure belli. The Brutus, 2 Gall. 538, Fed.
Cas.No.2,060.
A voyage or expedition in quest of vessels or
fleets of the enemy which may be expected to sail
in any particular track at a certain season of the
year. The region in which these cruises are per-
formed is usually termed the "rendezvous," or
"cruising latitude." Bouvier.
A report of a timber surveyor showing the
character and amount of timber in a stand. Jones
v. United States, C.C.A.Or., 265 F. 235, 239,
CRUSH. To break by means of pressure. Yagun-
chok v. Rutledge, 219 Mich. 82, 188 N.W. 412, 413.
It has been defined to mean to compress or
bruise between two hard bodies; to squeeze or
force by pressure so as to destroy the natural con-
dition, shape, or integrity of the parts, or to force
together into a mass. Atlantic Oil Producing Co.
v. Malone, 152 Okl. 68, 3 P.2d 874, 875.
CRY. To call out aloud; to proclaim; to publish;
to sell at auction. "To cry a tract of land." Carr
v. Gooch, 1 Wash., Va., 335 (260).
A clamor raised in the pursuit of an escaping
felon. 4 Bl.Comm. 293. See Hue and Cry.
CRY DE PAIS, or CRI DE PAIS. The hue and
cry raised by the people in ancient times, where
a felony had been committed and the constable
was absent.
CRYER. An auctioneer. Carr v. Gooch, 1 Wash.,
Va., 337, (262.) One who calls out aloud; one who
publishes or proclaims. See Crier.
CRYPTA. A chapel or oratory underground, or
under a church or cathedral. Du Cange.
CUCKING–STOOL. An engine of correction for
common scolds, which in the Saxon language is
said to signify the scolding-stool, though now it
is frequently corrupted into ducking-stool, because
the judgment was that, when the woman was
placed therein, she should be plunged in the water
for her punishment. It was also variously called
a "trebucket," "tumbrel," or "castigatory." 3 Inst.
219; 4 Bl.Comm. 169; Brown. James v. Comm.,
12 Serg. & R., Pa., 220.
CUCKOLD. A man whose wife is unfaithful;
the husband of an adulteress. It is explained that
the word alludes to the habit of the female cuck-
old, which lays her eggs in the nests of other
birds to be hatched by them. To make a cuckold
of a man is to seduce his wife. Hall v. Huffman,
159 Ky. 72, 166 S.W. 770.
CUEILLETTE. A term of French maritime law.
See A Cueillette.
CUI ANTE DIVORTIUM (L. Lat. The full phrase
was, Cui ipsa ante divortium contradicere non
potuit, whom she before the divorce could not
gainsay). A writ which anciently lay in favor of
a woman who had been divorced from her hus-
band, to recover lands and tenements which she
had in fee-simple, fee-tail, or for life, from him to
whom her husband had aliened them during mar-
riage, when she could not gainsay it; Fitzh.N.B.
240; 3 Bla.Com. 183, n.; Stearns, Real Act. 143;
Booth, Real Act. 188. Abolished in 1833.
CUI BONO. For whose good; for whose use or
benefit. "Cui bono is ever of great weight in all
agreements." Parker, C. J., 10 Mod. 135. Some-
times translated, for what good, for what useful
purpose.
CUI IN VITA (L. Lat. The full phrase was, Cui
in vita sua ipsa contradicere non potuit, whom in
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his lifetime she could not gainsay). 'A writ of
entry which lay for a widow against a person to
whom her husband had in his lifetime aliened her
lands. Fitzh.N.B. 193. It was a method of estab-
lishing the fact of death, being a trial with wit-
nesses, but without a jury. The object of the writ
was to avoid a judgment obtained against the hus-
band by confession or default. It is obsolete in
England by force of 32 Hen. VIII, c. 28, § 6. See
6 Co. 8, 9. As to its use in Pennsylvania, see 3
Binn.Appx.; Rep.Comm. on Penn.Civ.Code, 1835,
90. Abolished in England, 1833. Blackstone is
said to have shown little knowledge of its history;
Thayer, Evidence.
CUT JURISDICTIO DATA EST, EA QUOQUE
CONCESSA ESSE VIDENTUR, SINE QUIBUS
JURISDICTIO EXPLICARI NON POTEST. To
whomsoever a jurisdiction is given, those things
also are supposed to be granted, without which
the jurisdiction cannot be exercised. Dig. 2, 1, 2.
The grant of jurisdiction implies the grant of all
powers necessary to its exercise. 1 Kent, Comm.
339.
CUI JUS EST DONANDI, EIDEM ET VENDENDI
ET CONCEDENDI JUS EST. He who has the
right of giving has also the right of selling and
granting. Dig. 50, 17, 163.
CUILIBET IN ARTE SUA PERITO EST CRE-
DENDUM. Any person skilled in his peculiar art
or profession is to be believed, [i. e., when he
speaks of matters connected with such art.] Co.
Litt. 125a. Credence should be given to one
skilled in his peculiar profession. Broom.Max.
932; 1 Bla.Com. 75; Phill.Ev.Cowen & H. notes,
759; 1 Hagg.Ecc. 727; 11 Cl. & F. 85.
CUILIBET LICET JURI PRO SE INTRODUCTO
RENUNCIARE. Any one may waive or renounce
the benefit of a principle or rule of law that exists
only for his protection.
CUI LICET GUOD MAJUS, NON DEBET QUOD
MINUS EST NON LICERE. He who is allowed to
do the greater ought not to be prohibited from do-
ing the less. He who has authority to do the more
important act ought not to be debarred from doing
what is of less importance. 4 Coke 23.
CUICUNQUE ALIQUIS QUID CONCEDIT CON-
CEDERE VIDETUR ET ID, SINE QUO RES IPSA
ESSE NON POTUIT. Whoever grants anything
to another is supposed to grant that also without
which the thing itself would be of no effect. 11
Co. 52; Broom, Max. 479; Hob. 234; Vaugh. 109;
11 Exch. 775; Shep.Touch. 89; Co.Litt. 56 a.
CUI PATER EST POPULUS NON HABET ILLE
PATREM. He to whom the people is father has
not a father. Co.Litt. 123.
CUIQUE IN SUA ARTE CREDENDUM EST.
Everyone is to be believed in his own art. Dick-
inson v. Barber, 9 Mass. 227, 6 Am.Dec. 58.
CUJUS EST COMMODUM EJUS DEBET ESSE
INCOMMODUM. Whose is the advantage, his also
should be the disadvantage.
CUJUS EST DARE, EJUS EST DISPONERE,
Wing.Max. 53. Whose it is to give, his it is to dis-
pose; or, as Broom says, "the bestower of a gift
has a right to regulate its disposal." Broom, Max.
459, 461, 463, 464.
CUJUS EST DIVISIO, ALTERIUS EST ELECTIO.
Whichever [of two parties] has the division, [of
an estate,] the choice [of the shares] is the oth-
er's. Co.Litt. 166b. In partition between copar-
ceners, where the division is made by the eldest,
the rule in English law is that she shall choose
her share last. Id.; 2 Bl.Comm. 189; 1 Steph.
Comm. 323.
CUJUS EST DOMINIUM EJUS EST PERICUL-
UM. The risk lies upon the owner of the subject.
Tray.Lat.Max. 114.
CUJUS EST INSTITUERE, EJUS EST ABRO-
GARE. Whose right it is to institute, his right it
is to abrogate. Broom, Max. 878, note.
CUJUS EST SOLUM EJUS EST USQUE AD
C4ELUM. Whose is the soil, his it is up to the sky.
Co.Litt. 4a. He who owns the soil, or surface of
the ground, owns, or has an exclusive right to,
everything which is upon or above it to an indefi-
nite height. 9 Coke 54; Shep.Touch. 90; 2 Bl.
Comm. 18; 3 Bl.Comm. 217; Broom.Max. 395.
CUJUS EST SOLUM, EJUS EST USQUE AD
C(ELUM ET AD INFEROS. To whomsoever the
soil belongs, he owns also to the sky and to the
depths. The owner of a piece of land owns every-
thing above and below it to an indefinite extent.
Co.Litt. 4; Shell Oil Co. v. Manley Oil Corpora-
tion, D.C.I11., 37 F.Supp. 289, 292.
CUJUS JURIS (i. e., JURISDICTIONIS) EST
PRINCIPALE, EJUSDEM JURIS ERIT ACCES-
SORIUM. 2 Inst. 493. An accessory matter is
subject to the same jurisdiction as its principal.
CUJUS PER ERROREM DATI REPETITIO EST,
EJUS CONSULTO DATI DONATIO EST. He who
gives a thing by mistake has a right to recover
it back; but, if he gives designedly, it is a gift.
Dig. 50, 17, 53.
CUJUSQUE REI POTISSIMA PARS EST PRIN-
CIPIUM. The , chiefest part of everything is the
beginning. Dig. 1, 2, 1; 10 Coke, 49a.
CUL DE SAC. (Fr. the bottom of a sack.) A
blind alley; a street which is open at one end
only. Bartlett v. Bangor, 67 Me. 467; Talbott v.
Railroad Co., 31 Grat., Va., 691; Hickok v. Platts-
burg, 41 Barb., N.Y., 135; Beckham v. State, 64
Cal.App.2d 487, 149 P.2d 296, 300.
CULAGIUM. In old records. The laying up a
ship in a dock, in order to be repaired. Cowell;
Blount.
CULPA. Lat. A term of the civil law, meaning
fault, neglect, or negligence. There are three de-
grees of culpa,—lata culpa, gross fault or neglect;
levis culpa, ordinary fault or neglect; levissima
culpa, slight fault or neglect,—and the definitions
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of these degrees are precisely the same as those
in our law. Story, Bailm. § 18. This term is to
be distinguished from dolus, which means fraud,
guile, or deceit.
CULPA CARET QUI SCIT SED PROHIBERE
NON POTEST. He is clear of blame who knows,
but cannot prevent. Dig. 50, 17, 50.
CULPA EST IMMISCERE SE REL AD SE NON
PERTINENTI. 2 Inst. 208. It is a fault for any
one to meddle in a matter not pertaining to him.
CULPA LATA DOLO ZEQUIPARATUR. Gross
negligence is held equivalent to intentional wrong.
CULPA TENET [TENEAT] SUOS AUCTORES.
Misconduct binds [should bind] its own authors.
It is a never-failing axiom that every one is ac-
countable only for his own delicts. Ersk.Inst. 4,
1, 14.
CULPABILIS. Lat. In old English law. Guilty.
Culpabilis de intrusione,—guilty of intrusion. Fle-
ta, lib. 4, c. 30, § 11. Non culpabilis, (abbreviated
to non cul.) In criminal procedure, the plea of
"not guilty." See Culprit.
CULPABLE. Blamable; censurable; involving
the breach of a legal duty or the commission of
a fault. The term is not necessarily equivalent to
"criminal," for, in present use, and notwithstand-
ing its derivation, it implies that the act or conduct
spoken of is reprehensible or wrong but not that
it involves malice or a guilty purpose. "Culpable"
in fact connotes fault rather than guilt. Railway
Co. v. Clayberg, 107 Ill. 651; Cain v. State, 55 Ga.
App. 376, 190 S.E. 371, 374.
As to culpable "Homicide," "Ignorance," "Neg-
lect," and "Negligence," "Wantonness," see those
titles.
It also means that which is deserving of moral blame.
Mercury Motor Transport v. State ex rel. Motor Vehicle
Com'r, 197 Miss. 387, 21 So.2d 25, 28.
CULPA NENA PAR ESTO. DEENA AD MEN-
SURAM DELICTI STATUENDA EST. Let the
punishment be proportioned to the crime. Punish-
ment is to be measured by the extent of the of-
fense.
CULPRIT. A person who is indicted for a crimi-
nal offense, but not yet convicted. It is not, how-
ever, a technical term of the law; and in its ver-
nacular usage it seems to imply only a light de-
gree of censure or moral reprobation.
Blackstone believes it an abbreviation of the
old forms of arraignment, whereby, on the pris-
oner's pleading not guilty, the clerk would re-
spond, "culpabilis, prit," e., he is guilty and the
crown is ready. It was (he says) the viva voce
replication, by the clerk, on behalf of the crown,
to the prisoner's plea of non culpabilis; prit being
a technical word, anciently in use in the formula
of joining issue. 4 Bl.Comm. 339.
But a more plausible explanation is that given
by Donaldson, (cited Whart.Lex.,) as follows:
The clerk asks the prisoner, "Are you guilty, or
not guilty?" Prisoner "Not guilty." Clerk, "Qu'il
paroit, [may it prove so.] How will you be tried?"
Prisoner, "By God and my country." These words
being hurried over, came to sound, "culprit, how
will you be tried?" The ordinary derivation is
from culpa.
CULRACH. In old Scotch law. A species of
pledge or cautioner, (Scottice back borgh,) used
in cases of the replevin of persons from one man's
court to another's. Skene.
CULTIVATE. The word "cultivate" means to till,
prepare for crops, manure, plow, dress, sow and
reap, manage and improve in husbandry. Miller v.
Richey, Tex.Civ.App., 173 S.W.2d 490, 493.
CULTIVATED. A field on which a crop of wheat
is growing is a cultivated field, although not a
stroke of labor may have been done in it since the
seed was put in the ground, and it is a cultivated
field after the crop is removed. It is, strictly, a
cultivated piece of ground. Combs v. Rockingham
County Com'rs, 170 N.C. 87, 86 S.E. 963, 964; An-
gus Cattle Co. v. McLeod, 98 Neb. 108, 152 N.W.
322, 323.
CULTIVATOR. A cropper, which see. Pearson
v. Lafferty, 197 Mo.App. 123, 193 S.W. 40, 41.
CULTURA. A parcel of arable land. Blount.
CULVERTAGE. In old English law. A base kind
of slavery. The confiscation or forfeiture which
takes place when a lord seizes his tenant's estate.
Blount; Du Cange.
CUM ACTIO FUERIT MERE CRIMINAL'S, IN-
STITUI POTERIT AB INITIO CRIMINALITER
VEL CIVILITER. When an action is merely crim-
inal, it can be instituted from the beginning either
criminally or civilly. Bract. 102.
CUM ADSUNT TESTIMONIA RERUM, QUID
OPUS EST VERBIS? When the proofs of facts
are present, what need is there of words? 2
Bulst. 53.
CUM ALIQUIS RENUNCIAVERIT SOCIETATI,
SOLVITUR SOCIETAS. When any partner re-
nounces the partnership, the partnership is dis-
solved. Tray. Lat. Max. 118.
CUM CONFITENTE SPONTE MITIUS EST
AGENDUM. 4 Inst. 66. One confessing willing-
ly should be dealt with more leniently.
CUM COPULA. Lat. With copulation, i. e., sex-
ual intercourse. Used in speaking of the valid-
ity of a marriage contracted "per verba de fu-
turo cum copula," that is, with words referring to
the future (a future intention to have the mar-
riage solemnized) and consummated by sexual
connection.
CUM DE LUCRO DUORUM QUAERITUR, MELI-
OR EST CAUSA POSSIDENTIS. When the ques-
tion is as to the gain of two persons, the cause
of him who is in_ possession is the better. Dig. 50,
17, 126.
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CUNADES
CUM DUO INTER SE PUGNANTIA REPERIUN-
TUR IN TESTAMENTO, ULTIMUM RATUM
EST. Where two things repugnant to each other.
are found in a will, the last shall stand. Co. Litt.
112b; Shep. Touch. 451; Broom, Max. 583.
CUM DUO JURA CONCURRUNT IN UNA PER-
SONA ZEQUUM EST AC SI ESSENT IN DUO-
BUS. When two rights meet in one person, it is
the same as if they were in two persons.
CUM GRANO SALIS. (With a grain of salt.)
With allowance for exaggeration.
CUM IN CORPORE DISSENTITUR, APPARET
NULLAM ESSE ACCEPTIONEM. When there is
a disagreement in the substance, it appears that
there is no acceptance. Gardner v. Lane, 12 Allen,
Mass., 44.
CUM IN TESTAMENTO AMBIGUE AUT ETIAM
PERPERAM SCRIPTUM EST BENIGNE INTER-
PRETARI ET SECUNDUM ID QUOD CREDI-
BILE EST COGITATUM CREDENDUM EST.
Dig. 34, 5, 24. Where an ambiguous, or even an
erroneous, expression occurs in a will, it should
be construed liberally, and in accordance with the
testator's probable meaning. Broom, Max. 568.
CUM LEGITEVIZE NUPTLE FACTIE SUNT, PA-
TREM LIBERI SEQUUNTUR. Children born
under a legitimate marriage follow the condition
of the father.
CUM ONERE. With the burden; subject to an
incumbrance or charge. What is taken cum onere
is taken subject to an existing burden or charge.
CUM PAR DELICTUM EST DUORUM, SEMPER
ONERATUR PETITOR ET MELIOR HABETUR
POSSESSORIS CAUSA. Dig. 50, 17, 154. When
both parties are in fault the plaintiff must always
fail, and the cause of the person in possession be
preferred.
CUM PERA ET LOCULO. With satchel and
purse. A phrase in old Scotch law.
CUM PERTINENTIIS. With the appurtenances.
Bract. fol. 73b.
CUM PRIVILEGIO. The expression of the mon-
opoly of Oxford, Cambridge, and the royal print-
ers to publish the Bible.
CUM QUOD AGO NON VALET UT AGO, VAL-
EAT QUANTUM VALERE POTEST. 4 Kent,
Comm. 493. When that which I do is of no effect
as I do it, it shall have as much effect as it can;
i. e., in some other way.
CUM TESTAMENTO ANNEXO. L. Lat. With
the will annexed. A term applied to administra-
tion granted where a testator makes an incom-
plete will, without naming any executors, or
where he names incapable persons, or where the
executors named refuse to act. If the executor
has died, an administrator de bonis non cum testa-
mento annexo (of the goods not [already] admin-
istered upon with the will annexed) is appointed.
Often abbreviated d. b. n. c. t. a. 2 Bl. Comm. 503,
504.
CUMULATIVE. Additional; heaping up; in-
creasing; forming an aggregate. The word sig-
nifies that two things are to be added together,
instead of one being a repetition or in substitu-
tion of the other. People v. Superior Court, 10
Wend., N.Y., 285; Regina v. Eastern Archipelago,
Co., 18 Eng. Law & Eq. 183.
As to cumulative "Dividend," "Legacy," "Punish-
ment" and "Sentences," see those titles.
CUMULATIVE EVIDENCE. Additional or cor-
roborative evidence to the same point. That which
goes to prove what has already been established
by other evidence. Glidden v. Dunlap, 28 Me.
383; Parker v. Hardy, 24 Pick., Mass., 248; Wal-
ler v. Graves, 20 Conn. 310; Roe v. Kalb, 37 Ga.
459; Purcell Envelope Co. v. United States, 48
Ct.C1. 66, 73.
All evidence material to the issue, after any such evi-
dence has been given, is in a certain sense cumulative;
that is, is added to what has been given before. It tends to
sustain the issue.  But cumulative evidence, in legal
phrase, means evidence from the same or a new witness,
simply repeating, in substance and effect, or adding to,
what has been before testified to. Parshall v. Klinck, 43
Barb., N.Y., 212.  Evidence is not cumulative merely
because it tends to establish the same ultimate or prin-
cipally controverted fact. Cumulative evidence is addi-
tional evidence of the same kind to the same point. Able
v. Frazier, 43 Iowa, 177; Harlan v. Texas Fuel & Supply
Co., Tex.Civ.App., 160 S.W. 1142, 1146.
Cumulative Offense
One which can be committed only by a repeti-
tion of acts of the same kind but committed on
different days. The offense of being a "common
seller" of intoxicating liquors is an example.
Wells v. Corn., 12 Gray., Mass., 328.
Cumulative Remedy
A remedy created by statute in addition to one
which still remains in force. Railway Co. v. Chi-
cago, 148 Ill. 141, 35 N.E. 881; State v. Barboglio,
63 Utah, 432, 226 P. 904, 907; Philip Levy & Co. v.
Davis, 115 Va. 814, 80 S.E. 791, 794; Wulff-Hansen
& Co. v. Silvers, Cal.App., 120 P.2d 677, 680.
Cumulative Voting
A system of voting, by which the elector, hav-
ing a number of votes equal to the number of of-
ficers to be chosen, is allowed to concentrate the
whole number of his votes upon one person, or
to distribute them as he may see fit. For exam-
ple, if ten directors of a corporation are to be
elected, then, under this system, the voter may
cast ten votes for one person, or five votes for
each of two persons, etc. It is intended to secure
representation of a minority. Bridgers v. Sta-
ton, 150 N.C. 216, 63 S.E. 892; Chicago Macaroni
Mfg. Co. v. Boggiano, 202 Ill. 312, 67 N.E. 17;
Attorney General v. McVichie, 138 Mich. 387, 101
N.W. 552.
CUNADES. In Spanish law. Affinity; alliance;
relation by marriage. Las Partidas, pt. 4, tit. 6,
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CUNEATOR
CUNEATOR. A coiner. Du Cange. Cuneare,
to coin. Cuneus, the die with which to coin.
Cuneata, coined. Du Cange; Spelman.
CUNNILINGUS. An act of sex perversion com-
mitted with the mouth and the female sexual or-
gan. State v. Murry, 136 La. 253, 66 So. 963, 965.
CUNTEY-CUNTEY. In old English law. A kind
of trial, as appears from Bract. lib. 4, tract 3, ca.
18, and tract 4, ca. 2, where it seems to mean, one
by the ordinary jury.
CUR. A common abbreviation of curia.
CUBA. Lat. Care; charge; oversight; guar-
dianship.
In the civil law a species of guardianship which com-
menced at the age of puberty (when the guardianship
called "tutela" expired,) and continued to the completion
of the twenty-fifth year. Inst. 1, 23, pr.; Id. 1, 25, pr. ;
Hallifax, Civil Law, b. 1, c. 9.
CURAGULOS. One who takes care of a thing.
CURATE. In ecclesiastical law. Properly, an in-
cumbent who has the cure of souls, but now gen-
erally restricted to . signify the spiritual assistant
of a rector or vicar in his cure. An officiating
temporary minister in the English church, who
represents the proper incumbent; being regular-
ly employed either to serve in his absence or as
his assistant, as the case may be. 1 Bl. Comm.
393; 3 Steph. Comm. 88; Brande.
Perpetual Curacy, the office of a curate in a parish where
there is no spiritual rector or vicar, but where a clerk
(curate) is appointed to officiate there by the impropriator.
2 Burn.Ecc.Law, 55. The church or benefice filled by a
curate under these circumstances is also so called.
CURATEUR. In French law. A person charged
with supervising the administration of the affairs
of an emancipated minor, of giving him advice,
and assisting him in the important acts of such
administration. Duverger.
CURATIO. In the civil law. The power or duty
of managing the property of him who, either on
account of infancy or some defect of mind or
body, cannot manage his own affairs. The duty of
a curator or guardian. Calvin.
CURATIVE. Intended to cure (that is, to obviate
the ordinary legal effects or consequences of) de-
fects, errors, omissions or irregularities. Meigs
v. Roberts, 162 N.Y. 371, 56 N.E. 838, 76 Am.St.
Rep. 322.
The word is defined as relating to, or employed
in, the cure of diseases; tending to cure; a rem-
edy. State v. Stoddard, 215 Iowa, 534, 245 N.W.
273, 275, 86 A.L.R. 616.
Applied particularly to statutes, a "curative act" being
a retrospective law passed in order to validate legal pro-
ceedings, the acts of public officers, or private deeds or
contracts, which would otherwise be void for defects or
irregularities or for want of conformity to existing legal
requirements. Meigs v. Roberts, 162 N.Y. 371, 56 N.E. 838,
76 Am.St.Rep. 322; one intended to give legal effect to
some past act or transaction which is ineffective because
of neglect to comply with some requirement of law.
Anderson v. Lehmkuhl, 119 Neb. 451, 229 N.W. 773, 777;
Carle v. Gehl, 193 Ark. 1061, 104 S.W.2d 445, 447; also one
enacted to cure past irregularities not jurisdictional. Dun-
kum v. Maceck Bldg. Corporation, 256 N.Y. 275, 176 N.E.
392, 396. Applied to evidence curative admissibility is the
doctrine that an opponent may reply with similar evidence
whenever it is needed for removing an unfair prejudice
which might otherwise have ensued. Biener v. St. Louis
Public Service Co., Mo.App., 160 S.W.2d 780, 786.
CURATOR. In the Civil Law. A person who is
appointed to take care of anything for another.
A guardian. One appointed to take care of the
estate of a minor above a certain age, a lunatic,
a spendthrift, or other person not regarded by the
law as competent to administer it for himself.
The title was also applied to a variety of public
officers in Roman administrative law. Sproule v.
Davies, 69 App.Div. 502, 75 N.Y.S. 229; Le Blanc
v. Jackson, Tex.Civ.App., 161 S.W. 60, 66; Daniels
v. Metropolitan Life Ins. Co., 135 Pa.Super. 450, 5
A.2d 608, 611.
In Scotch Law
The term means a guardian.
In Louisiana
A person appointed to take care of the estate
of an absentee.
In Missouri
The term "curator" has been adopted from the
civil law, and it is applied to the guardian of the
estate of the ward as distinguished from the guar-
dian of his person. Duncan v. Crook, 49 Mo. 117.
Curator ad hoc
In the civil law. A guardian for this purpose;
a special guardian.
Curator ad litem
Guardian for the suit. In English law, the cor-
responding phrase is "guardian ad litem."
Curator bonis
In the civil law. A guardian or trustee appoint-
ed to take care of property in certain cases; as
for the benefit of creditors. Dig. 42, 7. In Scotch
law. The term is applied to guardians for minors,
lunatics, etc.
Curatores viarum
Surveyors of the highways.
CURATORSHIP. The office of a curator. Cura-
torship differs from tutorship, (q. v.) in this; that
the latter is instituted for the protection of prop-
erty in the first place, and, secondly, of the person;
while the former is intended to protect, first, the
person, and secondly, the property. 1 Lec. El.
Dr. Civ. Rom. 241.
CURATRIX. A woman who has been appointed
to the office of curator; a female guardian.
Cross' Curatrix v. Cross' Legatees, 4 Grat., Va.,
257.
CURATUS NON HABET TITULUM. A curate
has no title, [to tithes.1 3 Bulst. 310.
CURE. The act of healing; restoration to health
from disease, or to soundness after injury. State
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CURIA
v. Gibson, 199' Iowa 177, 201 N.W. 590; State v.
Stoddard, 215 Iowa, 534, 245 N.W. 273, 275, 86 A.
L.R. 616. Under rule that a vessel and her owner
must provide maintenance, and cure for seaman
injured or falling ill while in service, "cure" is
care, including nursing and medical attention dur-
ing such period as the duty continues. Calmar S.
S. Corporation v. Taylor, Pa., 303 U.S. 525, 58 S.
Ct. 651, 653, 82 L.Ed. 993.
CURE BY VERDICT. The rectification or ren-
dering nugatory of a defect in the pleadings by
the rendition of a verdict; the court will presume,
after a verdict, that the particular thing omitted
or defectively stated in the pleadings was duly
proved at the trial. State v. Keena, 63 Conn. 329,
28 A. 522; Treanor v. Houghton, 103 Cal. 53, 36
P. 1081.
CURE OF SOULS. In ecclesiastical law. The ec-
clesiastical or spiritual charge of a parish, includ-
ing the usual and regular duties of a minister in
charge. State v. Bray, 35 N.C. 290.
CURFEW. An institution supposed to have been
introduced into England by order of William the
Conqueror, which consisted in the ringing of a
bell or bells at eight o'clock at night, at which
signal the people were required to extinguish all
lights in their dwellings, and to put out or rake
up their fires, and retire to rest, and all companies
to disperse. The word is probably derived from.
the French couvre feu, to cover the fire. The cur-
few is spoken of in 1 Social England 373, as hav-
ing been ordained by William I, in order to pre-
vent nightly gatherings of the people of England.
But the custom is evidently older than the Nor-
man; for we find an order of King Alfred that
the inhabitants of Oxford should at the ringing
of that bell cover up their fires and go to bed.
And there is evidence that the same practice pre-
vailed at this period in France, Normandy, Spain,
and probably in most of the other countries of
Europe. Henry, Hist. of Britain, vol. 3, 567. It
was doubtless intended as a precaution against
fires, which were very frequent and destructive
when most houses were built of wood. It ap-
pears to have met with so much opposition that
in 1103 we find Henry I, repealing the enactment
of his father on the subject; and Blackstone says
that, though it is mentioned a century afterwards,
it is rather spoken of as a time of night than as
a still subsisting custom. Shakespeare frequently
refers to it in the same sense.
CURIA. In old European law. A court. The
palace, household, or retinue of a sovereign. A
judicial tribunal or court held in the sovereign's
palace. A court of justice. The civil power, as
distinguished from the ecclesiastical. A manor;
a nobleman's house; the hall of a manor. A piece
of ground attached to a house; a yard or court-
yard. Spelman. A lord's court held in his manor.
The tenants who did suit and service at the lord's
court. A manse. Cowell.
In Roman Law
A division of the Roman people, said to have
been made by Romulus. They were divided into
three tribes, and each tribe into ten curice, mak-
ing thirty curice in all. Spelman. The place or
building in which each curia assembled to offer
sacred rites. The place of meeting of the Roman
senate; the senate house. The senate house of
a province; the place where the decuriones as-
sembled. Cod. 10, 31, 2. See Decurio.
CURIA ADMIRALITATIS. The court of admiral-
ty.
CURIA ADVISARI VULT. L. Lat. The court
will advise; the court will consider. A phrase
frequently found in the reports, signifying the
resolution of the court to suspend judgment in a
cause, after the argument, until they have delib-
erated upon the question, as where there is a new
or difficult point involved. It is commonly ab-
breviated to cur. adv. vult, or c. a. v.
CURIA BARONIS, OR BARONUM. In old Eng-
lish law. A court-baron. Fleta, lib. 2, C. 53.
CURIA CANCELLABLE OFFICINA JUSTITLE.
2 Inst. 552. The court of chancery is the work-
shop of justice.
CURIA CHRISTIANITATIS. The ecclesiastical
court.
CURIA CLAUDENDA. The name of a writ to
compel another to make a fence or wall, which
he was bound to make, between his land and the
plaintiff's. Reg. Orig. 155. Now obsolete.
CURIA COMITATUS. The county court (q. v.)
CURIA CURSUS AQUIE. A court held by the lord
of the manor of Gravesend for the better manage-
ment of barges and boats plying on the river
Thames between Gravesend and Windsor, and also
at Gravesend bridge, etc. 2 Geo. II, c. 26.
CURIA DOMINI. In old English law. The lord's
court, house, or hall, where all the tenants met
at the time of keeping court. Cowell.
CURIA LEGITIME AFFIRMATA. A phrase us-
ed in old Scotch records to show that the court
was opened in due and lawful manner.
CURIA MAGNA. In old English law. The great
court; one of the ancient names of parliament.
CURIA MAJORIS. In old English law. The
mayor's court. Calth. 144.
CURIA MILITUM. A court so called, anciently
held at Carisbrook Castle, in the Isle of Wight.
Cowell.
CURIA PALATII. The palace court. It was abol-
ished by 12 & 13 Vict. c. 101.
CURIA PARLIAMENT' SUIS PROPRIIS LEG-
IBUS SUBSISTIT. 4 Inst. 50. The court of par-
liament is governed by its own laws.
CURIA PEDIS PULVERIZATI. In old English
law. The court of piedpoudre or piepouders. 3
Bl. Comm. 32. See Court of Piepoudre.
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CURIA
CURIA PENTICIARUM. A court held by the
sheriff of Chester, in a place there called the "Pen-
dice" or "Pentice;" probably it was so called from
being originally held under a pent-house, or open
shed covered with boards. Blount.
CURIA PERSON/E. In old records. A parson-
age-house, or manse. Cowell.
CURIA REGIS. The king's court. A term ap-
plied to the aula regis, the bancus, or communis
bancus, and the iter or eyre, as being courts of
the king, but especially to the aula regis, (which
title see.)
CURIALITY. In Scotch law. Curtesy. Also the
privileges, prerogatives, or, perhaps, retinue, of a
court.
CURING TITLE. "Clearing", "curing", "straight-
ening out", or "removing cloud from" title denotes
acts or proceedings necessary to render title mar-
ketable. Johnston v. Cox, 114 Fla. 243, 154 So.
206.
CURIOSA ET CAPTIOSA INTERPRETATIO IN
LEGE REPROBATUR. A curious [overnice or
subtle] and captious interpretation is reprobated
in law. 1 Balst. 6.
CURNOCK. In old English law. A measure con-
taining four bushels or half a quarter of corn.
Cowell; Blount.
CURRENCY. Coined money and such banknotes
or other paper money as are authorized by law
and do in fact circulate from hand to hand as the
medium of exchange. Griswold v. Hepburn, 2
Duv., Ky., 33; Insurance Co. v. Kupfer, 28 Ill.
332, 81 Am.Dec.' 284. Certificates of deposit are
"Currency." State ex rel. Cole v. Trimble, 307
Mo. 57, 269 S.W. 959, 961; Millikan v. Security
Trust Co., 187 Ind. 307, 118 N.E. 568, 570. Gold
certificate held "currency". Nortz v. U. S., Ct.C1.,
294 U.S. 317, 55 S.Ct. 428, 79 L.Ed. 907, 907 A.L.R.
1346.
The term "money" is synonymous with "currency," and
imports any currency, token, bank notes, or other circulat-
ing medium in general use as the representative of value.
People v. Miller, 292 Ill. App. 643, 11 N.E.2d 827.
CURRENT. Running; now in transit; whatever
is at present in course of passage; as "the cur-
rent month." Wharton v. Morris, 1 Dail. 124, 1
L.Ed. 65; Miller v. White, Tex.Civ.App., 264 S.W.
176, 178; Richardson v. Board of Education of
City of Ashland, 208 Ky. 464, 271 S.W. 549, 550;
American Fruit Growers v. United States, C.C.A.
Cal., 105 F.2d 722, 726.
A continuous movement in the same direction,
as a fluid or stream. Buckeye Incubator Co. v.
Blum, D.C.Ohio, 17 F.2d 456, 458.
Passing in time or belonging to the time actual-
ly passing, now passing, present in its course, as
the current month, and as applied to current ob-
ligations it denotes the obligations then passing
or present in its progress, the service rendered
and the compensation therefor measured by the
time of the occurrence of the event. Pecos Mer-
cantile Co. v. Texlite, Inc., Tex.Civ.App., 65 S.W.2d
811, 812.
The word "current," when used as an adjective, has
many meanings, and definition depends largely on word
which it modifies, or subject-matter with which it is asso-
ciated. Commissioner of Internal Revenue v. Keller,
C.C.A., 59 F.2d 499, 501.
CURRENT ACCOUNT. An open, running, or un-
settled account between two parties. Tucker v.
Quimby, 37 Iowa 19; Franklin v. Camp, 1 N.J.Law,
196; Wilson v. Calvert, 18 Ala. 274; Leland v.
Johnson, 227 Iowa 520, 288 N.W. 595, 597; Miller
v. Boyce, 219 Iowa 534, 258 N.W. 764.
CURRENT CATALOGUES. Under contract to sell
automobiles as shown in current catalogues, "cur-
rent catalogues" means such catalogues as should
from time to time be issued, and not merely the
catalogues in existence on execution of the con-
tract. Imperial Motorcar Co. v. Skinner, 16 Ala.
App. 443, 78 So. 641, 642.
CURRENT DEBT FUND RULE. The "current
debt fund rule" is that creditors who have supplied
labor, materials, or equipment essential to opera-
tion of railroad before adjudication of insolvency
will be entitled to lien on properties prior to lien
of pre-existing mortgages, if current operating
revenues have been diverted to payment of princi-
pal or interest on mortgages, or to enhancement
of mortgage security before current operating ex-
penses have been met. Village of Stillwater v.
Hudson Valley Ry. Co., 255 N.Y. 144, 309, 174 N.E.
306.
CURRENT EXPENSES. Ordinary, regular, and
continuing expenditures for the maintenance of
property, the carrying on of an office, municipal
government, etc. State v. Board of Education, 68
N.J.Law, 496, 53 A. 236; Babcock v. Goodrich, 47
Cal. 510; St. Louis-San Francisco Ry. Co. v.
Forbess, 111 Oki. 48, 237 P. 596, 597.
In connection with municipal finances, the usual, ordi-
nary, running, and incidental expenses of a municipality.
Atchison, T. & S. F. Ry. Co. v. City of Topeka, 95 Kan.
747, 149 P. 697. The term is equivalent to "running
expenses," meaning any continuing regular expenditures
in connection with the business. Meridian Line Drainage
Dist. v. Wiss, 258 Ill. 600, 101 N.E. 941, 942.
CURRENT FUNDS. This phrase means gold or
silver, or something equivalent thereto, and con-
vertible at pleasure into coined money. Bull v.
Bank, 123 U.S. 105, 8 S.Ct. 62, 31 L.Ed. 97; Hen-
derson v. Farmers' Sa y . Bank of Harper, 199 Iowa
496, 202 N.W. 259, 261.
CURRENT LIABILITIES. The phrase "current
liability" carries with it the idea of a liability that
is presently enforceable. Warren Co. v. Commis-
sioner of Internal Revenue, C.C.A.Ga., 135 F.2d
679, 684, 685.
CURRENT MAINTENANCE. "Current mainte-
nance" is defined as the expense occasioned in
keeping the physical property in the condition re-
quired for continued use during its service life.
Lindheimer v. Illinois Bell Telephone Co., Ill., 292
U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182.
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CURTESY
CURRENT MONEY. The currency of the coun-
try; whatever is intended to and does actually
circulate as currency; every species of coin or
currency. Miller v. McKinney, 5 Lea, Tenn., 96.
In this phrase the adjective "current" is not synon-
ymous with "convertible." It is employed to de-
scribe money which passes from hand to hand,
from person to person, and circulates through the
community, and is generally received. Money is
current which is received as money in the common
business transactions, and is the common medium
in barter and trade. Ferrell v. State, 68 Tex.Cr.R.
487, 152 S.W. 901, 905; Kupfer v. Marc, 28 Ill.
388; Conwell  Pumphrey, 9 Ind. 135, 68 Am.Dec.
611.
CURRENT OBLIGATIONS. The word "current"
means passing in time or belonging to the time
actually passing, now passing, present in its
course, as the current month, and as applied to
current obligations it denotes the obligations then
passing or present in its progress, the service
rendered and the compensation therefor measured
by the time of the occurrence of the event. Pecos
Mercantile Co. v. Texlite, Inc., Tex.Civ.App., 65
S.W.2d 811, 812.
CURRENT PRICE. This term means the same
as "market value," "market price," "going price,"
the price that runs or flows with the market.
Hoff v. Lodi Canning Co., 51 Cal.App. 299, 196 P.
779, 780; Ford v. Norton, 32 N.M. 518, 260 P. 411,
414, 55 A.L.R. 261; Cases of Champagne, 23 Fed.
Cas. 1168.
CURRENT RATE OF WAGES. Minimum, maxi-
mum, and intermediate amounts, indeterminately
varying from time to time and dependent on the
class and kind of work done, the efficiency of the
workman, etc. Connally v. General Const. Co.,
269 U.S. 385, 46 S.Ct. 126, 128, 70 L.Ed. 322.
"CURRENT REVENUES". Defined as including
taxes for ensuing year and all liquid assets, such
as delinquent taxes, licenses, fines, and other reve-
nues which, in judgment of authorities, are col-
lectible. Athens Nat. Bank v. Ridgebury Tp.,
303 Pa. 479, 154 A. 791, 792.
CURRENT VALUE. The current value of import-
ed commodities is their common market price at
the place of exportation, without reference to the
price actually paid by the importer. Tappan v.
U. S., 23 Fed.Cas. 690.
CURRENT WAGES. Such as are paid periodical-
ly, or from time to time as the services are ren-
dered or the work is performed; more particular-
ly, wages for the current period, hence not includ-
ing such as are past-due. Sydnor v. Galveston,
Tex.App., 15 S.W. 202; Bell v. Indian Live Stock
Co., Tex., 11 S.W. 346, 3 L.R.A. 642; Bruton v.
Tearle, 7 Cal.2d 48, 59 P.2d 953, 957, 106 A.L.R.
580.
CURRENT YEAR. The year now running. Doe
v. Dobell, 1 Adol. & El. 806; Clark v. Lancaster
County, 69 Neb. 717, 96 N.W. 593. Ordinarily, a
calendar year in which the event under discussion
took place; Buffalo County v. Bowker, 197 N.W.
620, 622, 111 Neb. 762; Clark v. Tennessee Chemi-
cal Company, 167 Ga. 248, 145 S.E. 73, 75; Empire
Petroleum Co. v. Southern Pipe Line Co., 174 Ark.
33, 294 S.W. 5, 6; unless the context shows a dif-
ferent intention; Miller v. White, Tex.Civ.App.,
264 S.W. 176, 178; People v. Central Illinois Public
Service Co., 324 Ill. 85, 154 N.E. 438, 439.
CURRICULUM. The year; of the course of a
year; the set of studies for a particular period,
appointed by a university.
CURRIT QUATUOR PEDIBUS. L. Lat. It runs
upon four feet; or, as sometimes expressed, it
runs upon all fours. A phrase used in arguments
to signify the entire and exact application of a
case quoted. "It does not follow that they run
quatuor pedibus." 1 W.B1. 145.
CURRIT TEMPUS CONTRA DESIDES ET SUI
JURIS CONTEMPTORES. Time runs against the
slothful and those who neglect their rights.
Bract. fols. 100b, 101.
CURSING. Malediction; imprecation; execra-
tion; profane words intended to convey hate and
to invoke harm; swearing. Johnson v. State, 15
Ala.App. 194, 72 So. 766.
CURSITOR BARON. An officer of the court of
exchequer, who is appointed by patent under the
great seal to be one of the barons of the exche-
quer. The office was abolished by St. 19 & 20 Vict.
c. 86.
CURSITORS. Clerks in the chancery office, whose
duties consisted in drawing up those writs which
were of course, de cursu, whence their name.
They were abolished by St. 5 & 6 Wm. IV, c. 82.
Spence, Eq.Jur. 238; 4 Inst. 82.
CURSO. In old records. A ridge. Cursones
terrce, ridges of land. Cowell.
CURSOR. An inferior officer of the papal court.
CURSORY EXAMINATION. An inspection for
defects visible or ascertainable by ordinary exami-
nation. Coll v. Lehigh Valley R. Co., 3 N.J.Misc.
869, 130 A. 225, 226.
CURSUS CURIAE EST LEX CURVE. 3 Bulst. 53.
The practice of the court is the law of the court.
CURTAIL. "Curtail" means to cut off the end or
any part of; hence to shorten, abridge; diminish*,
lessen, reduce; and has no such meaning as abol-
ish. State v. Edwards, 207 La. 506, 21 So.2d 624,
625.
CURTESY. The estate to which by common law
a man is entitled, on the death of his wife, in the
lands or tenements of which she was seised in
possession in fee-simple or in tail during her cover-
ture, provided they have had lawful issue born
alive which might have been capable of inheriting
the estate. It is a freehold estate for the term of
his natural life. 1 Washb.Real Prop. 127; 2 BL
Comm. 126; Co.Litt. 30a; Dozier v. Toalson,
180 Mo. 546, 79 S.W. 420, 103 Am.St.Rep. 586;
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CURTESY
Templeton v. Twitty, 88 Tenn. 595, 14 S.W. 435;
Decker v. Decker, 205 Ky. 69, 265 S.W. 483, 485.
Initiate and consummate
Curtesy initiate is the interest which a husband
has in his wife's estate after the birth of issue
capable of inheriting, and before the death of the
'wife; after her death, it becomes an estate "by
the curtesy consummate." Wait v. Wait, 4 Barb.,
N.Y. 205; Churchill v. Hudson, C.C.Mo., 34 F.
14; Pattison v. Baker, 148 Tenn. 399, 255 S.W.
710, 29 A.L.R. 1334; Bucci v. Popovich, 93 N.J.
Eq. 121, 115 A. 95, 96; Hopper v. Gurtman, 126
N.J. 263, 18 A.2d 245, 246, 250, 133 A.L.R. 621.
CURTEYN. The name of King Edward the Con-
fessor's sword. It is said that the point of it was
broken, as an emblem of mercy. (Mat. Par. in
Hen. III.) Wharton.
CURTILAGE. The inclosed space of ground and
buildings immediately surrounding a dwelling-
house. 1 Chit.Gen.Pr. 175; United States v. Vla-
hos, D.C.Or., 19 F.Supp. 166, 169.
In its most comprehensive and proper legal sig-
nification, it includes all that space of ground and
buildings thereon which is usually inclosed within
the general fence immediately surrounding a prin-
cipal messuage and outbuildings, and yard closely
adjoining to a dwelling-house, but it may be large
enough for cattle to be levant and couchant there-
in. 1 Chit.Gen.Pr. 175.
The curtilage of a dwelling-house is a space,
necessary and convenient and habitually used for
the family purposes, and the carrying on of do-
mestic employments. It includes the garden, if
there be one, and it need not be separated from
other lands by fence. State v. Shaw, 31 Me. 523;
Derrickson v. Edwards, 29 N.J.Law, 474, 80 Am.
Dec. 220; Bare v. Commonwealth, 122 Va. 783, 94
S.E. 168, 172; State v. Lee, 120 Or, 643, 253 P.
533, 534.
A piece of ground commonly used with the dwelling
house. Fugate v. Commonwealth, 294 Ky. 410, 171 S.W.2d
1020, 1021. A small piece of land, not necessarily inclosed,
around the dwelling house, and generally includes the
buildings used for domestic purposes in the conduct of
family affairs. Bruner v. State, 47 Okl.Cr. 241, 288 P. 369,
370; a courtyard or the space of ground adjoining the
dwelling house necessary and convenient and habitually
used for family purposes and the carrying on of domestic
employments. Jones v. Commonwealth, 239 Ky. 110, 38
S.W.2d 971, 973. A piece of ground within the common
inclosure belonging to a dwelling house, and enjoyed with
it, for its more convenient occupation. Italian-American
Building & Loan Ass'n of Passaic County v. Russo, 132
N.J.Eq. 319, 28 A.2d 196, 198; People v. Gedney, 10 Hun.,
N.Y., 154. In Michigan it has been extended to include
more than an inclosure near the house. People v. Taylor,
2 Mich. 250.
CURTILES TERRIE. In old English law. Court
lands. Cowell. See Court Lands.
CURTILLIUM. A curtilage; the area or space
within the inclosure of a dwellinghouse. Spelman.
CURTIS. A garden; a space about a house; a
house, or manor; a court, or palace; a court of
justice; a nobleman's residence. Spelman.
CUSSEDNESS. "Wantonness" is a synonym for
what is popularly known as "cussedness," and
"cussedness" is a disposition to perversity. Uni-
versal Concrete Pipe Co. v. Bassett, 130 Ohio St.
567, 200 N.E. 843, 845.
CUSSORE. A term used in Hindostan for the
discount or allowance made in the exchange of
rupees, in contradistinction to batta, which is the
sum deducted. Enc.Lond.
CUSTA, CUSTAGIUM, CUSTANTIA. Costs.
CUSTODE ADMITTENDO, CUSTODE AMOVEN-
DO. Writs for the admitting and removing of
guardians.
CUSTODES.
In Roman Law
Guardians; observers; inspectors. Persons
who acted as inspectors of elections, and who
counted the votes given. Tayl.Civil Law, 193.
In Old English Law
Keepers; guardians; conservators.
CUSTODES LIBERTATIS ANGLLE AUCTORI-
TATE PARLIAMENTI. The style in which writs
and all judicial processes were made out during
the great revolution, from the execution of King
Charles I. till Oliver Cromwell was declared pro-
tector.
CUSTODES PACIS. Guardians of the peace. 1
Bl.Comm. 349.
CUSTODIA LEGIS. In the custody of the law.
Stockwell v. Robinson, 9 Houst., Del., 313, 32 A.
528; Troll v. City of St. Louis, 257 Mo. 626, 168
S.W. 167, 178; Hopping v. Hopping, 233 Iowa 993,
10 N.W.2d 87, 152 A.L.R. 436.
CUSTODIAM LEASE. In English law. A grant
from the crown under the exchequer seal, by
which the custody of lands, etc., seised in the
king's hands, is demised or committed to some
person as custodee or lessee thereof. Wharton.
CUSTODY. The care and keeping of anything;
as when an article is said to be "in the custody of
the court." People V. Burr, 41 How.Prac., N.Y.,
296; Emmerson v. State, 33 Tex.Cr.R. 89, 25 S.W.
290; Roe v. Irwin, 32 Ga. 39. Also the detainer of
a man's person by virtue of lawful process or
authority; actual imprisonment. In a sentence
that the defendant "be in custody until," etc., this
term imports actual imprisonment. Smith v.
Com., 59 Pa. 320; Turner v. Wilson, 49 Ind. 581;
Ex parte Powers, D.C.Ky., 129 F. 985. Detention;
charge; control; possession. The term is very
elastic and may mean actual imprisonment or
physical detention or mere power, legal or physi-
cal, of imprisoning or of taking manual posses-
sion. Jones v. State, 26 Ga.App. 635, 107 S.E. 166;
J. 0. Nessen Lumber Co. v. Ray H. Bennett Lum-
ber Co., 223 Mich. 349, 193 N.W. 789, 790; State
ex rel. Bricker v. Griffith, Ohio App., 36 N.E.2d
489, 491; Willoughby v. State, 87 Tex.Cr.R. 40,
219 S.W. 468, 470; Carpenter v. Lord, 88 Or. 128,
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CUSTOM
171 P. 577, 579, L.R.A.1918D, 674; Little v. State,
100 Tex.Cr.R. 167, 272 S.W. 456, 457; Randazzo
v. U. S., C.C.A.Mo., 300 F. 794, 797.
The word is defined as the care and possession of a thing,
and means the keeping, guarding, care, watch, inspection,
preservation or security of a thing, and carries with it the
idea of the thing being within the immediate personal care
and control of the person to whose custody it is subjected;
charge ; immediate charge and control, and not the final,
absolute control of ownership, implying responsibility for
the protection and preservation of the thing in custody.
Southern Carbon Co. v. State, 171 Misc. 566, 13 N.Y.S.2d
7, 9.
"Custody" of property means such a relation towards it
as would constitute possession if the person having custody
had it on his own account. State v. Columbus State Bank,
124 Neb. 231, 246 N.W. 235, 238. "Custody" means a keep-
ing, guardianship, the state of being held in keeping or
under guard, restraint of liberty, imprisonment, and "fet-
ter" is a synonym. Browder v. Cook, D.C.Idaho, 59
F.Supp. 225, 231.
CUSTODY OF THE LAW. Property is in the cus-
tody of the law when it has been lawfully taken
by authority of legal process, and remains in the
possession of a public officer (as, a sheriff) or an
officer of a court (as, a receiver) empowered by
law to hold it. Gilman v. Williams, 7 Wis. 334, 76
Am.Dec. 219; McFarland Carriage Co. v. Solanes,
C.C.La., 108 V. 532; Allan v. Hargadine-McKit-
trick Dry Goods Co., 325 Mo. 400, 28 S.W.2d 670,
673.
CUSTOM. A usage or practice of the people,
which, by common adoption and acquiescence,
and by long and unvarying habit, has become
compulsory, and has acquired the force of a law
with respect to the place or subject-matter to
which it relates. Adams v. Insurance Co., 95 Pa.
355, 40 Am.Rep. 662; King v. Shelton, Tex.Civ.
App., 252 S.W. 194, 195; Conahan v. Fisher, 233
Mass. 234, 124 N.E. 13, 15; Lawrence v. Portland
Ry., Light & Power Co., 91 Or. 559, 179 P. 485,
486; U. S. Shipping Board Emergency Fleet Cor-
poration v. Levensaler, 53 App.D.C. 322, 290 F. 297,
300.
A "custom" is a practice or course of acting. Goslin v.
Kurn, 351 Mo. 395, 173 S.W.2d 79, 86.
Ordinary or usual way of doing a thing, habit ; practice.
Adelman v. Altman, 209 Mo.App. 583, 240 S.W. 272, 276;
Kent v. Town of Patterson, 141 N.Y.S. 932, 933, 80 Misc.
Rep. 560 ; Maeder Steel Products Co. v. Zanello, 109 Or.
562, 220 P. 155, 161; Carter v. Sioux City Service Co., 160
Iowa 78, 141 N.W. 26, 29.
It results from a long series of actions, constantly
repeated, which have, by such repetition and by uninter-
rupted acquiescence, acquired the force of a tacit and com-
mon consent. Louisville & N. R. Co. v. Reverman, 243 Ky.
702, 49 S.W.2d 558, 560.
A law not written, established by long usage, and the
consent of our ancestors. Termes de la Ley; Cowell;
Bract.fol. 2. Portuguese Beneficial Ass'n v. Xavier, 59 R.I.
265, 195 A. 231, 233. If it be universal, it is common law;
if particular to this or that place, it is then properly cus-
tom. 3 Salk. 112.
Customs result from a long series of actions constantly
repeated, which have, by such repetition, and by unin-
terrupted acquiescence, acquired the force of a tacit and
common consent. Civil Code La..art. 3.
It differs from prescription, which is personal and is
annexed to the person of the owner of a particular estate;
while the other is local, and relates to a particular district.
An instance of the latter occurs where the question is upon
the manner of conducting a particular branch of trade at a
certain place; of the former, where a certain person and
his ancestors, or those whose estates he has, have been
entitled to a certain advantage or privilege, as to have
common of pasture in a certain close, or the like. The
distinction has been thus expressed : "While prescription
is the making of a right, custom is the making of a law."
Lawson, Usages & Cust. 15, note 2.
Classification
Customs are general, local or particular. Gen-
eral customs are such as prevail throughout a
country and become the law of that country, and
their existence is to be determined by the court.
Bodfish v. Fox, 23 Me. 95,. 39 Am.Dec. 611. Or as
applied to usages of trade and business, a general
custom is one that is followed in all cases by all
persons in the same business in the same terri-
tory, and which has been so long established that
persons sought to be charged thereby, and all
others living in the vicinity, may be presumed to
have known of it and to have acted upon it as
they had occasion. Sturges v. Buckley, 32 Conn.
267; Railroad Co. v. Harrington, 192 Ill. 9, 61
N.E. 622. Local customs are such as prevail only
in some particular district or locality, or in some
city, county, or town. Clough v. Wing, 2 Ariz. 371,
17 P. 457. Particular customs are nearly the same,
being such as affect only the inhabitants of some
particular district. 1 Bl.Comm. 74.
Custom of Merchants
A system of customs or rules relative to bills of
exchange, partnership, and other mercantile mat-
ters, and which, under the name of the "lex merca-
toria," or "law merchant," has been ingrafted in-
to and made a part of, the common law. 1 BL
Comm. 75; 1 Steph.Comm. 54; 2 Burrows, 1226,
1228.
Custom of York
A custom of intestacy in the province of York
similar to that of London. Abolished by 19 & 20
Vict. c. 94.
Customs and Services
Annexed to the tenure of lands are those which
the tenants thereof owe unto their lords, and
which, if withheld, the lord might anciently have
resorted to "a writ of customs and services" to
compel them. Cowell. But at the present day he
would merely proceed to eject the tenant as upon
a forfeiture, or claim damages for the subtrac-
tion. Brown.
Customs of London
Certain particular customs, peculiar to that
city, with regard to trade, apprentices, 'Widows,
orphans and a variety of other matters; con-
trary to the general law of the land, but con-
firmed by act of parliament. 1 Bl.Comm. 75,
Special Custom
A particular or local custom; one which, in
respect to the sphere of its observance, does not
extend throughout the entire state or country, but
is confined to some particular district or locality.
1 Bl.Comm. 67; Bodfish v. Fox, 23 Me. 95, 39 Am.
Dec. 611,
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CUSTOM
CUSTOM. DUTIES. Taxes on the importation and
exportation of commodities; the tariff or tax as-
sessed upon merchandise, imported from, or ex-
ported to a foreign country. United States v.
Sischo, D.C.Wash., 262 F. 1001, 1005.
CUSTOM-HOUSE. In administrative law. The
house or office where commodities are entered for
importation or exportation; where the duties,
bounties, or drawbacks payable or receivable upon
such importation or exportation are paid or re-
ceived; and where ships are cleared out, etc.
CUSTOM-HOUSE BROKER. One whose occupa-
tion it is, as an agent, to arrange entries and other
custom-house papers, or transact business, at any
port of entry, relating to the importation or ex-
portation of goods, wares, or merchandise. 14
St. at Large, 117. A person authorized by the
commissioners of customs to act for parties, at
their option, in the entry or clearance of ships
and the transaction of general business. Whar-
ton; State v. William J. Oberle, Inc., La.App., 140
So. 239, 240.
CUSTOMARILY. Means usually, habitually, ac-
cording to the customs, general practice or usual
order of things, regularly. Fuller Brush Co. v.
Industrial Commission of Utah, 99 Utah 97, 104
P.2d 201, 203, 129 A.L.R. 511.
CUSTOMARY. According to custom or usage;
founded on, or growing out of, or dependent on,
a custom (q. v.); ordinary; usual; common.
Kent v. Town of Patterson, 80 Misc.Rep. 560, 141
N.Y.S. 932, 933; Montgomery v. O'Donnell, 178
Iowa 588, 159 N.W. 1025, 1026; Woods v. Postal
Telegraph-Cable Co., 205 Ala. 236, 87 So. 681, 686,
27 A.L.R. 834.
CUSTOMARY COURT-BARON. See Court-Baron.
CUSTOMARY DISPATCH. In charter party. Due
diligence according to lawful, reasonable and well-
known custom of port or ports involved. Con-
text and conditions existing or contemplated will,
of course, affect the meaning of the phrase. Was-
son v. Stetson, Cutler & Co., D.C.Mass., 214 F. 329,
333; Taisho Kaiun Kabushiki Kaisha v. Gano
Moore Co., D.C.Del., 14 F.2d 985, 986.
CUSTOMARY ESTATES. Estates which owe
their origin and existence to the custom of the
manor in which they are held. 2 Bl.Comm. 149.
CUSTOMARY FREEHOLD. In English law. A
variety of copyhold estate, the evidences of the
title to which are to be found upon the court rolls;
the entries declaring the holding to be according
to the custom of the manor, but it is not said to be
at the will of the lord. The incidents are similar
to those of common or pure copyhold. 1 Steph.
Comm. 212, 213, and note.
CUSTOMARY INTERPRETATION. See Interpre-
tation.
CUSTOMARY SERVICES. Such as are due by
ancient custom or prescription only.
CUSTOMARY TENANTS. Tenants holding by
custom of the manor.
CUSTOME SERRA PRISE STRICTE. Custom
shall be taken [is to be construed] strictly. Jenk.
Cent. 83.
CUSTOMER. One who regularly or repeatedly
makes purchases of, or has business dealings with,
a tradesman or business house. Aiken Mills v.
United States, D.C.S.C., 53 F.Supp. 524, 526; Ark-
wright Corporation v. United States, D.C.Mass., 53
F.Supp. 359, 361. Ordinarily, one who has had
repeated business dealings with another. Lyons
v. Otter Tail Power Co., 70 N.D. 681, 297 N.W. 691,
693; Gallopin v. Continental Casualty Co., 290 Ill.
App. 8, 7 N.E.2d 771, 774. A buyer, purchaser, or
patron. Nichols v. Ocean Accident & Guarantee
Corporation, 70 Ga.App. 169, 27 S.E.2d 764, 766.
CUSTOMERS' GOODS. The words "customers'
goods," as used in statement of claim on fire pol-
icy referring to merchandise destroyed as "cus-
tomers' goods," in their ordinary sense, mean
goods belonging to insured's customers in his
custody as a bailee for the purpose of his trade.
Sagransky v. Tokio Marine & Fire Ins. Co., 92
Pa.Super. 500, 502.
CUSTOMER'S MAN. One who has duty to greet
customers of broker, when they appear in office
on business, to assist them in placing their orders,
and generally to see that their wants are taken
care of. Fenner & Beane v. Lincoln, Tex.Civ.App.,
101 S.W.2d 305, 308; an employee of a brokerage
house who solicits from the investing public or-
ders for the purchase and sale of commodities
and securities to be executed upon various com-
modities and securities exchanges in the United
States. Gould v. Witter, 10 Wash.2d 553, 117 P.
2d 210, 211. The term includes all employees who
are regularly engaged in the solicitation of mar-
ginal business or the handling of customers' ac-
counts, or who advise with customers about the
purchase and sale of securities. Clothier v.
Beane, 187 Okl. 693, 105 P.2d 752, 756.
CUSTOMS. This term is usually applied to those
taxes which are payable upon goods and merchan-
dise imported or exported. Story, Const. § 949;
Pollock v. Trust Co., 158 U.S. 601, 15 S.Ct. 912, 39
L.Ed. 1108; Marriott v. Brune, 9 How. 632, 13 L.
Ed. 282.
The duties, toll, tribute, or tariff payable upon
merchandise exported or imported. These are
called "customs" from having been paid from time
immemorial. Expressed in law Latin by custuma,
as distinguished from consuetudines, which are
usages merely. 1 Bl. Comm. 314.
CUSTOMS CONSOLIDATION ACT. The statute
16 & 17 Viet. c. 107, which has been frequently
amended. See 2 Steph. Comm. 563.
CUSTOMS COURT. By virtue of Act May 28,
1926, c. 411, § 1, 44 Stat. 669, 19 U.S.C.A. § 405a,
the "United States Customs Court" became the
title of what had theretofore been known as the
"Board of General Appraisers." Ex parte Bake-
462

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CUTWAL
lite Corporation, 279 U.S. 438, 49 S.Ct. 411, 73 L.
Ed. 789. Its decisions are appealable to the "Court
of Customs and Patent Appeals" (q. v.) in all cas-
es as to the construction of the law and facts re-
specting the classification of merchandise and the
rate of duty imposed thereon, and the fees and
charges connected therewith, and all appealable
questions as to the court's jurisdiction, and as
to the laws and regulations governing the collec-
tion of the customs revenues.
CUSTOS. Lat. A custodian, guard, keeper, or
warden; a magistrate.
CUSTOS BREVIUM. The keeper of the writs.
A principal clerk belonging to the courts of
queen's bench and common pleas, whose office it
was to keep the writs returnable into those courts.
The office was abolished by 1 Wm. IV, c. 5.
CUSTOS FERARUM. A gamekeeper. Townsh.
Pl. 265.
CUSTOS HORREI REGII. Protector of the royal
granary. 2 Bl. Comm. 394.
CUSTOS MARIS. In old English law. Warden
of the sea. The title of a high naval officer among
the Saxons and after the Conquest, corresponding
with admiral.
CUSTOS MORUM. The guardian of morals. The
court of queen's bench has been so styled. 4 Steph.
Comm. 377.
CUSTOS PLACITORUM CORONAE. In old Eng-
lish law. Keeper of the pleas of the crown. Bract.
fol. 14b. Cowell supposes this office to have been
the same with the custos rotulorum. But it seems
rather to have been another name for "coroner."
Crabb, Eng. Law, 150; Bract. fol. 136b.
CUSTOS ROTULORUM. Keeper of the rolls.
An officer in England who has the custody of the
rolls or records of the sessions of the peace, and
also of the commission of the peace itself. He is
always a ' justice of the quorum in the county
where appointed and is the principal civil officer
in the county. 1 Bl. Comm. 349; 4 Bl. Comm. 272.
CUSTOS SPIRITUALIUM. In English ecclesias-
tical law. Keeper of the spiritualities. He who
exercises the spiritual jurisdiction of a diocese dur-
ing the vacancy of the see. Cowell.
CUSTOS STATUM HIEREDIS IN CUSTODIA EX-
ISTENTIS MELIOREM, NON DETERIOREM,
FACERE POTEST. 7 Coke, 7. A guardian can
make the estate of an existing heir under his
guardianship better, not worse.
CUSTOS TEMPORALIUM. In English ecclesias-
tical law. The person to whom a vacant see or
abbey was given by the king, as supreme lord.
His office was, as steward of the goods and profits,
to give an account to the escheator, who did the
like to the exchequer.
CUSTOS TERRIE. In old English law. Guar-
dian, warden, or keeper of the land.
CUSTUMA ANTIQUA SIVE MAGNA. (Lat. An-
cient or great duties.) The duties on wool, sheep-
skin, or wool-pelts and leather exported were so
called, and were payable by every merchant, stran-
ger as well as native, with the exception that mer-
chant strangers paid one-half as much again as
natives. 1 Bl. Comm. 314.
CUSTUMA PARVA ET NOVA. (Small and new
customs.) Imposts of 3d. in the pound, due for-
merly in England from merchant strangers only,
for all commodities, as well imported as exported.
This was usually called the "aliens duty," and
was first granted in 31 Edw. I. 1 Bl. Comm. 314;
4 Inst. 29.
CUT. A wound made with a sharp instrument.
State v. Patza, 3 La.Ann. 512; State v. Cody, 18
Or. 506, 23 Pac. 891; State v. Mairs, 1 N.J.Law,
453; the term is not limited to severance by use
of a sharp instrument, but also Means to fell, and
in industry, to reduce by or as by removing a
part. Waselinko v. Volpe Coal Co., 152 Pa.Super.
156, 31 A.2d 444, 445.
In Mining
A surface opening in the ground intersecting a
vein. McLaughlin v. Bardsen, 50 Mont. 177, 145
P. 954, 955.
CUT-OVER LAND. Land which has been logged;
from which desired timber has been removed.
Carlisle-Pennell Lumber Co. v. Joe Creek Shingle
Co., 131 Wash. 501, 230 P. 425; Tennessee Mining
& Mfg. Co. v. New River Lumber Co., C.C.A.Tenn.,
5 F.2d 559, 560.
CUT SHELL. One in which the part containing
the shot is nearly severed from the part contain-
ing powder, so as to be projected in a unit, and
inflict a more dangerous wound than if the shot
were scattered. White v. State, 195 Ala. 681, 71
So. 452, 454.
CUTCHERRY. In Hindu law. Corrupted from
Kachari. A court; a hall; an office; the place
where any public business is transacted.
CUTH, COUTH. Sax. Known, knowing. Uncuth,
unknown. See Couthutlaugh; Uncuth.
CUTHRED. A knowing or skillful counsellor.
CUTLER. Either a man who makes edged tools
or one who grinds them. American Stainless
Steel Co. v. Ludlum Steel Co., C.C.A.N.Y., 290 F.
103, 106.
• CUTPURSE. One who steals by the method of
cutting purses; a common practice when men
wore their purses at their girdles, as was once the
custom. Wharton.
CUTTER OF THE TALLIES. In old English law.
An officer in the exchequer, to whom it belonged
to provide wood for the tallies, and to cut the
sum paid upon them, etc.
CUTWAL, KATWAL. The chief officer of police
or superintendent of markets in a large town or
city in India.
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CWT
CWT. A hundred-weight; one hundred and
twelve pounds. Helm v. Bryant, 11 B. Mon. (Ky.)
64.
CY. In law French. Here. (Cy-apres, hereafter;
cy-devant, heretofore.) Also as, so.
CYCLE. A measure of time; a space in which
the same revolutions begin again; a periodical
space of time. Enc. Lond. In electrical nomencla-
ture is two successive reversals of directions of
electromotive force or current or full period of al-
ternative current. Chicago Pneumatic Tool Co. v.
Black & Decker Mfg. Co., Cust. & Pat.App., 39 F.
2d 684, 685.
CYCLONE. "A violent storm, often of vast ex-
tent, characterized by high winds rotating about
a calm center of low atmospheric pressure. Pop-
ularly, any violent and destructive windstorm."
Tupper v. Massachusetts Bonding & Insurance
Co., 156 Minn. 65, 194 N.W. 99, 100; Cedergren v.
Massachusetts Bonding & Insurance Co., C.C.A.
Minn., 292 F. 5, 6; the term includes the hurri-
cane, typhoon, bagino, and other tropical storms.
Federal Life Ins. Co. v. Hall, 90 Colo. 581, 11 P.
2d 215, 216.
CYNE-BOT, or CYNE-GILD. The portion belong.
ing to the nation of the mulct for slaying the
king, the other portion or were being due to his
family. Blount.
CYNEBOTE. A mulct anciently paid by one who
killed another, to the kindred of the deceased.
Spelman.
CYPHONISM. That kind of punishment used by
the ancients, and still used by the Chinese, called
by Staunton the "wooden collar," by which the
neck of the malefactor is bent or weighed down.
Enc. Lond.
CY-PRES. As near as [possible]. The rule of
cy-pres is a rule for the construction of instru-
ments in equity, by which the intention of the
party is carried out as near as may be, when it
would be impossible or illegal to give it literal
effect. Thus, where a testator attempts to create
a perpetuity, the court will endeavor, instead of
making the devise entirely void, to explain the
will in such a way as to carry out the testator's
general intention as far as the rule against per-
petuities will allow. So in the case of bequests
to charitable uses; and particularly where the
language used is so vague or uncertain that the
testator's design must be sought by construction.
Beekman v. Bonsor, 23 N.Y. 308, 80 Am.Dec. 269;
Doyle v. Whalen, 87 Me. 414, 32 A. 1022, 31 L.
R.A. 118; Philadelphia v. Girard, 45 Pa. 28, 84 Am.
Dec. 470; People v. Braucher, 258 Ill. 604, 101 N.
E. 944, 946, 47 L.R.A., N.S., 1015; Tincher v. Ar-
nold, C.C.A.Ill., 147 F. 665; Crane v. Morristown
School Foundations, 120 N.J.Eq. 583, 187 A. 632,
635,
CYRCE. In Saxon law. A church.
CYRICBRYCE. A breaking into a church.
Blount.
CYRICSCEAT. (From cyric, church, and sceat,
a tribute). In Saxon law. A tribute or payment
due to the church. Cowell.
CYROGRAPHARIUS. In old English law. A cy-
rographer; an officer of the bancus, or court of
common bench. Fleta, lib. 2, c. 36.
CYROGRAPHUM. A chirograph, (which see.)
CZAR. (Also written zar, tsar, tzar, etc.) The
title of the former emperors of Russia, derived
from the old Slavonic cesar, king or emperor,
which, although long held to be derived from the
Roman title Caesar, is almost certainly of Tartar
origin. 8 Encyc. Americana, 378. The Slavonic
word ultimately represents the Latin Caesar, but
came, according to Miklosich, through the medium
of a Germanic language in which the word had
the general sense "emperor." 2 New English
Dict. (Oxford, 1893), page 1308.
In the beginning of the 10th century the Bulgarian
prince Symeon assumed this title, which remained at-
tached to the Bulgarian crown. In 1346 it was adopted by
Stephen Duschan, king of Serbia. Among the Russians
the Byzantine emperors were so called, as were also the
khans of the Mongols that ruled in Russia. Ivan III, grand
prince of Moscow, held the title, and Ivan IV, the Terrible,
in 1547, caused himself to be crowned as czar. In 1721 the
Senate and clergy conferred on Peter I, in the name of the
nation, the title Emperor of Russia, for which in Russia
the Latin word imperator Is used. 8 Encyc.Americana,
378. Peter the Great introduced the title imperator, "em-
peror," and the official style then became "Emperor of all
the Russias, Tsar of Poland, and Grand Duke of Finland" ;
but the Russian popular appellation continued to be tsar
(the preferable modern spelling). 2 New English Diet.
1308. The last tsar was Nicholas II, who abdicated on
March 15, 1917, and was later executed.
CZAREVITCH. (Also spelled czarewich, tsare-
vitch, and, after the Polish, czarowitz, czarowitch,
etc. 2 New English Dict. 1308.) A son of the
Russian czar and czarina. Originally a title.
Webster, Dict. The word was used as a title
during the time of Peter I and his son, Alexis,
after whose death imperial princes were called
grand dukes. 6 New Internatl. Encyc. 420.
CZAREVNA, TS AREVNA. A daughter of the
Russian czar. Originally a title. Webster, Dict.
As a title, however, the word has been superseded,
since the time of Paul I (1754-1801), by that of
grand duchess.  New Internatl. Encyc. 420; 2
New English Diet. 1308. See Czarevitch; Cesarev-
na.
CZARINA. The title of former empresses of
Russia.
CZARITZA, TSARITSA. The Russian title for
which czarina is in ordinary English use. 2 New
English Dist. 1308.
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DAILY
D
465
The fourth letter of the English alphabet. It
is used as an abbreviation for a number of words,
the more important and usual of which are as
follows:
1. Digestum, or Digesta, that is, the Digest or
Pandects in the Justinian collections of the civil
law. Citations to this work are sometimes indi-
cated by this abbreviation, but more commonly by
"Dig."
2. Dictum. A remark or observation, as in the
phrase "obiter dictum," (q. v.).
3. Demissione. "On the demise." An action
of ejectment is entitled "Doe d. Stiles v. Roe;"
that is, "Doe, on the demise of Stiles, against
Roe."
4. "Doctor." . As in the abbreviated forms of
certain academical degrees. "M. D.," "doctor of
medicine;" "LL.D.," "doctor of laws;" "D. C. L.,"
"doctor of civil law."
5. "District." Thus, "U. S. Cir. Ct. W. D. Pa."
stands for United States Circuit Court for the
Western District of Pennsylvania.
6. "Dialogue." Used only in citations to the
work called "Doctor and Student."
In the Roman system of notation, this letter
stands for five hundred; and, when a horizontal
dash or stroke is placed above it, it denotes five
thousand.
D. B. Defined as day book, double biased, double
breasted and, if capitalized, it means Doomsday
Book, though there is no authoritative definition
of d/b or d/b/a as a symbol or abbreviation in
a legal document. City of St. Louis v. Stubley,
Mo.App., 154 S.W.2d 407, 410.
D. B. A. Abbreviation for "doing business as."
Lieberman v. Atlantic Mut. Ins. Co., 385 P.2d 53,
55, 62 Wash.2d 922.
D. B. E. An abbreviation for de bene esse, ( q. v.).
D. B. N. An abbreviation for de bonis non; de-
scriptive of a species of administration.
D. C. An abbreviation standing either for "Dis-
trict Court," or "District of Columbia."
D. E. R. I. C. An abbreviation used for De ea re
ita censuere, (concerning that matter have so de-
creed,) in recording the decrees of the Roman
senate. Tayl. Civil Law, 564, 566.
D. J. An abbreviation for "District Judge."
D. P. An abbreviation for Domus Procerum, the
house of lords.
D. S. An abbreviation for "Deputy Sheriff." Jones
County Land Co. v. Fox, 120 Miss. 798, 83 So. 241,
242.
D. S. B. An abbreviation for debitum sine brevi,or debit sans breve.
Black's Law Dictionary Revised 4th Ed.-30
D. W. I. In genealogical tables, a common ab-
breviation for "died without issue."
DA TUA DUM TUA SUNT, POST MORTEM
TUNC TUA NON SUNT. 3 Bulst. 18. Give the
things which are yours whilst they are yours; aft-
er death they are not yours.
DABIS? DABO. Lat. (Will you give? I will
give.) In the Roman law. One of the forms of
making a verbal stipulation. Inst. 3, 15, 1; Bract.
fol. 15b.
DACION. In Spanish law. The real and effective
delivery of an object in the execution of a contract.
DACTYLOGRAPHY. Dactylography is the scien-
tific study of finger prints as a means of identi-
fication. State v. Steffen, 210 Iowa, 196, 230 N.W.
536, 537, 78 A.L.R. 748.
DAGGE. A kind of gun. 1 How. State Tr. 1124,
1125.
DAGGER. Any straight knife, worn on person
and capable of inflicting death, except pocket
knife. Dagger is a generic term covering dirk, stil-
etto, poniard, etc. People v. Syed Shah, 91 Cal.
App. 716, 205 P.2d 1081, 1083.
DAGUS, or DAIS. The raised floor at the upper
end of a hall.
DAILY. Every day; every day in the week;
every day in the week except one. A newspaper
which is published six days in each week is a
"daily" newspaper. Richardson v. Tobin, 45 Cal.
30; Tribune Pub. Co. v. Duluth, 45 Minn. 27, 47
N.W. 309; City of Bellingham v. Bellingham Pub.
Co., 116 Wash. 65, 198 P. 369; State ex rel. Item
Co. v. Commissioner of Public Finances of City of
New Orleans, 161 La. 915, 109 So. 675, 676.
DAILY BALANCES, AVERAGE DAILY BAL-
ANCE. In school depository law. "Daily bal-
ances" means the various balances for the differ-
ent days in the period for which interest is to be
paid, and the "average daily balance" for the in-
terest period means the sum of these daily bal-
ances divided by the number of days in the inter-
est period. Jones v. Marrs, 114 Tex. 62, 263 S.W.
570, 574.
DAILY OCCUPATION. The same as "usual oc-
cupation". International Brotherhood of Boiler
Makers, Iron Shipbuilders & Helpers of America
v. Huval, 133 Tex. 136, 126 S.W.2d 476, 478.
DAILY RATE OF PAY. As used in Workmen's
Compensation Law. Means one-sixth of the aver-
age weekly earnings of the employee during a
six-day week. Boyett v. Urania Lumber Co., 8 La.
App. 132, 133.
DAILY WAGES. As used in statute authorizing
compensation for loss of an eye, means amount

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DAIRY
which could be earned by working ordinary num-
ber of hours, irrespective of enforced idleness dur-
ing working hours and overtime employment.
Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283
N.W. 220, 221.
DAIRY. An establishment for the sale or dis-
tribution of milk or milk products. State v. Mc-
Cosh, 134 Neb. 780, 279 N.W. 775, 777.
DARER, or DIKER. Ten hides. Blount.
DALE and SALE. Fictitious names of places, us-
ed in the English books, as examples "The manor
of Dale and the manor of Sale, lying both in
Vale."
DALUS, DAILUS, DAILIA. A certain measure
of land; such narrow slips of pasture as are left
between the plowed furrows in arable land. Cow-
ell.
DAM. A construction of wood, stone, reinforced
concrete or other materials, made across a stream
for the purpose of penning back the waters. This
word is used in two different senses. It properly
means the work or structure, raised to obstruct
the flow of the water in a river; but, by a well-
settled usage, it is often applied to designate the
pond of water created by this obstruction. Burn-
ham v. Kempton, 44 N.H. 89; Colwell v. Water
Power Co., 19 N.J.Eq. 248; Mining Co. v. Hancock,
101 Cal. 42, 31 P. 112; State ex rel. Priegel v.
Northern States Power Co., 242 Wis. 345, 8 N.W.
2d 350, 352.
DAMAGE. Loss, injury, or deterioration, caused
by the negligence, design, or accident of one per-
son to another, in respect of the latter's person
or property. The word is to be distinguished from
its plural,-"damages,"-which means a compen-
sation in money for a loss or damage. An injury
produces a right in them who have suffered any
damage by it to demand reparation of such dam-
age from the authors of the injury. By damage,
we understand every loss or diminution of what
is a man's own, occasioned by the fault of anoth-
er. 1 Ruth. Inst. 399.
The harm, detriment, or loss sustained by rea-
son of an injury. Yazoo & M. V. R. Co. v. Fields,
188 Miss. 725, 195 So. 489, 490.
Synonymous with "condemnation money." State v.
Hale, Tex.Civ.App., 96 S.W.2d 135, 139. "Injury". Dohr-
ing v. Kansas City, 228 Mo.App. 519, 71 S.W.2d 170, 171.
"Loss." Glinz v. State, 70 N.D. 776, 298 N.W. 238, 239;
Wells v. Thomas W. Garland, Inc., Mo., 39 S.W.2d 409, 411.
DAMAGE-CLEER. A fee assessed of the tenth
part in the common pleas, and the twentieth part
in the queen's bench and exchequer, out of all
damages exceeding five marks recovered in those
courts, in actions upon the case, covenant, tres-
pass, etc., wherein the damages were uncertain;
which the plaintiff was obliged to pay to the pro-
thonotary or the officer of the court wherein he
recovered, before he could have execution for the
damages. This was originally a gratuity given to
the prothonotaries and their clerks for drawing
special writs and pleadings; but it was taken
away by statute, since which, if any officer in
these courts took any money in the name of dam-
age-deer, or anything in lieu thereof, he forfeited
treble the value. Wharton.
DAMAGE FEASANT or FAISANT. Doing dam-
age. A term applied to a person's cattle or beasts
found upon another's land, doing damage by tread-
ing down the grass, grain, etc. 3 Bl. Comm. 7,
211; Tomlins. This phrase seems to have been
introduced in the reign of Edward III, in place of
the older expression "en son damage," (in damno
suo.) Crabb, Eng. Law, 292.
DAMAGE TO PERSON. Bodily or physical in-
jury directly resulting from wrongful act, wheth-
er lying in trespass or trespass on the case, and
does not include torts directly affecting the per-
son but affecting only the feelings and reputation.
Young v. Aylesworth, 35 R.I. 259, 86 A. 555, 556;
Texas Employers' Ins. Ass'n v. Jimenez, Tex.Civ.
App., 267 S.W. 752, 758; Howard v. Lunaburg,
192 Wis. 507, 213 N.W. 301, 303; Wilson v. Grace,
273 Mass. 146, 173 N.E. 524, 528.
DAMAGE TO TWO PERSONS. In bond for pay-
ment of damages that limited amount payable
for any one accident. Where widow sued to re-
cover damages to deceased and his estate and
also her pecunary loss, there was "damage to two
persons" within the bond. Ehlers v. Gold, 169
Wis. 494, 173 N.W. 325, 327.
DAMAGED. Made less valuable, less useful, or
less desirable. Cleveland, C., C. & St. L. Ry. Co.
v. Mumford, 208 Ind. 655, 197 N.E. 826, 835.
Synonymous with term "injuriously affected" within
eminent domain statutes. Alabama Power Co. v. City of
Guntersville, 235 Ala. 136, 177 So. 332, 337, 114 A.L.R. 181;
term "injuriously affected" as used in condemnation stat-
utes, is synonymous. Hirt v. City of Casper, 56 Wyo. 57,
103 P.2d 394, 398.
DAMAGED GOODS. Goods, subject to duties,
which have received some injury either in the voy-
age home or while bonded in warehouse.
DAMAGES. A pecuniary compensation or indem-
nity, which may be recovered in the courts by
any person who has suffered loss, detriment, or
injury, whether to his person, property, or rights,
through the unlawful act or omission or negli-
gence of another. Scott v. Donald, 165 U.S. 58, 17
S.Ct. 265, 41 L.Ed. 632; Wainscott v. Loan Ass'n,
98 Cal. 253, 33 P. 88; Strong v. Neidermeier, 230
Mich. 117, 202 N.W. 938, 940; Greer v. Board of
Com'rs of Knox County, 33 Ohio App. 539, 169 N.
E. 709, 710.
Compensation for the loss or injury suffered. Holmes
Electric Protective Co. of Philadelphia v. Goldstein, 147 Pa.
Super. 506, 24 A.2d 161, 165; In re Rushford's Estate, 111
Vt. 494, 18 A.2d 175, 176; Brown v. Cummins Distilleries
Corporation, D.C.Ky., 56 F.Supp. 941, 942. A just compen-
sation or reparation for a loss or injury sustained. Mc-
Naghten Loan Co. v. Sandifer, 137 Kan. 353, 20 P.2d 523,
526. All factors going to make up total amount which
plaintiff may recover under correct principles of law. Bin-
der v. Harris, 267 Mass. 162, 166 N.E. 707, 708. Reasonable
compensation for legal injury. Sechrist v. Bowman, 307
Pa. 301, 161 A. 332, 335. The award made to a person be-
cause of a legal wrong done to him by another. Eklund v.
Evans, 211 Minn. 164, 300 N.W. 617, 619. The estimated
reparation in money for detriment or injury sustained, and
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DAMAGES
as payment for or indemnity for injuries. Sycamore Pre-
serve Works v. Chicago & N. W. R. Co., 284 I11. App. 445, 1
N.E.2d 522, 526. The pecuniary compensation, recompense,
or satisfaction for an injury sustained, Fogle v. Frazel, 201
La. 899, 10 So.2d 695, 698. A sum awarded as a fair meas-
ure of compensation to plaintiff, the amount being, as near
as can be estimated, that by which he is the worse for the
defendant's wrongdoing. Chafin v. Gay Coal & Coke Co.,
113 W.Va. 823, 169 S.E. 485, 487. A sum of money assessed
by a jury on finding for the plaintiff or successful party in
an action, as a compensation for the injury done him by
the opposite party. 2 BI.Comm. 438; Co.Litt. 257a; 2
Tidd, Pr. 869, 870. In its early signification the term in-
cluded "costs", the terms are now regarded as distinct,
State ex rel. Marcri v. City of Bremerton, 8 Wash.2d 93,
111 P.2d 612, 616. Synonymous with: "compensation",
Maryland Casualty Co. v. Pitman, 70 Ga.App. 670, 29 S.E.2d
102; "condemnation money", Eldridge v. Sutton, 171 Okl.
11, 41 P.2d 680, 682; "judgment", Stearns v. Ritchie, 128
Me. 368, 147 A. 703, 705. In the ancient usage, the word
"damages" was employed in two significations. According
to Coke, its proper and general sense included the costs of
suit, while its strict or relative sense was exclusive of costs.
10 Coke, 116, 117; Co.Litt. 257a; 9 East, 299. The latter
meaning has alone survived.
Actual damages
Real, substantial and just damages, or the
amount awarded to a complainant in compensa-
tion for his actual and real loss or injury, as op-
posed on the one hand to "nominal" damages,
and on the other to "exemplary" or "punitive"
damages. Ross v. Leggett, 61 Mich. 445, 28 N.W.
695, 1 Am.St.Rep. 608; Gatzow v. Buening, 106
Wis. 1, 81 N.W. 1003, 49 L.R.A. 475; Osborn v.
Leach, 135 N.C. 628, 47 S.E. 811, 66 L.R.A. 648;
Winans v. Chapman, 104 Kan. 664, 180 P. 266, 267.
Synonymous with "compensatory damages" and
with "general damages." Ringgold v. Land, 212
N.C. 369, 193 S.E. 267, 268; News Leader Co. v.
Kocen, 173 Va. 95, 3 S.E.2d 385, 391, 122 A.L.R.
842; Anderson v. Alcus, Tex.Civ.App., 42 S.W.2d
294, 296.
Affirmative damages
In admiralty law, the damages which a respond-
ent in a libel for injuries to a vessel may recover,
which may. be in excess of any amount which the
libellant would be entitled to claim. Ebert v. The
Reuben Doud, D.C.Wis., 3 F. 520.
Civil damages
Those awarded against a liquor-seller to the
relative, guardian, or employer of the person to
whom the sales were made, on a showing that the
plaintiff has been thereby injured in person, prop-
erty, or means of support. Headington v. Smith,
113 Iowa 107, 84 N.W. 982.
Compensatory damages
Compensatory damages are such as will com-
pensate the injured party for the injury sustain-
ed, and nothing more; such as will simply make
good or replace the loss caused by the wrong or
injury. McKnight v. Denny, 198 Pa. 323, 47 A.
970; Wade v. Power Co., 51 S.C. 296, 29 S.E. 233,
64 Am.St.Rep. 676; Gatzow v. Buening, 106 Wis.
1, 81 N.W. 1003, 49 L.R.A. 475.
Consequential damages
Such damage, loss, or injury as does not flow
directly and immediately from the act of the par-
ty, but only from some of the consequences or re-
sults of such act. Swain v. Copper Co., 111 Tenn.
430, 78 S.W. 93; McKibbin v. Pierce, Tex.Civ.App.,
190 S.W. 1149, 1151; Mawson v. Vess Beverage
Co., Mo.App., 173 S.W.2d 606, 613; U. S. v. Chi-
cago, B. & Q. R. Co., C.C.A.Minn., 82 F.2d 131,
136, 106 A.L.R. 942.
The term means sometimes damage which is so remote
as not to be actionable; sometimes damage which, though
somewhat remote, is actionable; or damage which, though
actionable, does not follow immediately, in point of time,
upon the doing of the act complained of. Eaton v. Rail-
road Co., 51 N.H. 504, 12 Am.Rep. 147.
Contingent damages
Where a demurrer has been filed to one or more
counts in a declaration, and its consideration is
postponed, and meanwhile other counts in the
same declaration, not demurred to, are taken as
issues, and tried, and damages awarded upon
them, such damages are called "contingent dam-
ages."
Continuing damages
Are such as accrue from the same injury, or
from the repetition of similar acts, between two
specified periods of time.
Damages ultra
Additional damages claimed by a plaintiff not
satisfied with those paid into court by the defend-
ant.
Direct damages
Direct damages are such as follow immediately
upon the act done; Eaton v. Railroad Co., 51 N.H.
504, 12 Am.Rep. 147; City of Dublin v. Ogburn,
142 Ga. 840, 83 S.E. 939; McKibbin V. Pierce, Tex.
Civ.App., 190 S.W. 1149, 1151; Washington & 0.
D. Ry. v. Westinghouse Electric & Mfg. Co., 120
Va. 620, 89 S.E. 131, 133.
Double damages
Twice the amount of actual damages as found
by the verdict of a jury allowed by statute in some
cases of injuries by negligence, fraud, or tres-
pass. Cross v. United States, 6 Fed.Cas. 892;
Daniel v. Vaccaro, 41 Ark. 329.
Excessive damages
Damages awarded by a jury which are grossly
in excess of the amount warranted by law on the
facts and circumstances of the case; unreason-
able or outrageous damages. Taylor v. Giger,
Hardin, Ky., 587; Harvesting Mach. Co. v. Gray,
114 Ind. 340, 16 N.E. 787.
Exemplary damages
Exemplary damages are damages on an in-
creased scale, awarded to the plaintiff over and
above what will barely compensate him for his
property loss, where the wrong done to him was
aggravated by circumstances of violence, oppres-
sion, malice, fraud, or wanton and wicked conduct
on the part of the defendant, and are intended to
solace the plaintiff for mental anguish, laceration
of his feelings, shame, degradation, or other ag-
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DAMAGES
gravations of the original wrong, or else to pun-
ish the defendant for his evil behavior or to make
an example of him, for which reason they are
also called "punitive" or "punitory" damages or
"vindictive" damages, and (vulgarly) "smart-mon-
ey." Springer v. Fuel Co., 196 Pa.St. 156, 46 A.
370; Scott v. Donald, 165 .U.S. 58, 17 S.Ct. 265, 41
L.Ed. 632; Gillingham v. Railroad Co., 35 W.Va.
588, 14 S.E. 243, 14 L.R.A. 798; Murphy v. Hobbs,
7 Colo. 541, 5 P. 119, 49 Am.Rep. 366. It is said
that the idea of punishment does not enter into
the definition; the term being employed to mean
an increased award in view of supposed aggrava-
tion of the injury to the feelings of plaintiff by the
wanton or reckless act of defendant. Brause v.
Brause, 190 Iowa 329, 177 N.W. 65, 70.
Fair damages
See Fair Damages.
Fee damages
Damages sustained by and awarded to an abut-
ting owner of real property occasioned by the
construction and operation of an elevated rail-
road in a city street, are so called, because com-
pensation is made to the owner for the injury to,
or deprivation of, his easements of light, air, and
access, and these are parts of the fee. Dode v.
Railway Co., 70 Hun, 374, 24 N.Y.S. 422; People
v. Barker, 165 N.Y. 305, 59 N.E. 151.
General damages
General damages are such as the law itself
implies or presumes to have accrued from the
wrong complained of, for the reason that they
are its immediate, direct, and proximate result,
or such as necessarily result from the injury, or
such as did in fact result from the wrong, directly
and proximately, and without reference to the
special character, condition, or circumstances of
the plaintiff. Mood v. Telegraph Co., 40 S.C. 524,
19 S.E. 67; Hopkins v. Veo, 98 Vt. 433, 129 A. 157,
158; United States Frumentum Co. v. Lauhoff,
C.C.A.Mich., 216 F. 610, 617; Kane v. New Idea
Realty Co., 104 Conn. 508, 133 A. 686, 687.
Imaginary damages
This term is sometimes used as equivalent to
"exemplary," "vindictive," or "punitive" damages.
Murphy v. Hobbs, 7 Colo. 541, 5 P. 119, 49 Am.
Rep. 366.
Inadequate damages
Damages are called "inadequate," within the
rule that an injunction will not be granted where
adequate damages at law could be recovered for
the injury sought to be prevented, when such a
recovery at law would not compensate the par-
ties and place them in the position in which they
formerly stood. Insurance Co. v. Bonner, 7 Colo.
App. 97, 42 P. 681.
Intervening damages
Such damages to an appellee as result from the
delay caused by the appeal. McGregor v. Balch,
17 Vt. 568; Roberts v. Warner, 17 Vt. 46, 42 Am.
Dec. 478.
Irreparable damages
In the law pertaining to injunctions, damages
for which no certain pecuniary standard exists
for measurement. Philadelphia Ball Club, Lim-
ited, v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A.
227. Damages not easily ascertainable at law.
Krich v. Zemel, 96 N.J.Eq. 208, 124 A. 449, 450.
With reference to public nuisances which a pri-
vate party may enjoin, the term includes wrongs
of a repeated and continuing character, or which
occasion damages estimable only by conjecture,
and not by any accurate standard. Bernard v.
Willamette Box & Lumber Co., 64 Or. 223, 129 P.
1039, 1042.
Land damages
A term sometimes applied to the amount of
compensation to be paid for land taken under
the power of eminent domain or for injury to, or
depreciation of, land adjoining that taken. Peo-
ple v. Hilts, 27 Misc.Rep. 290, 58 N.Y.S. 434; In re
Lent, 47 App.Div. 349, 62 N.Y.S. 227.
Liquidated damages and penalties
The term is applicable when the amount of the
damages has been ascertained by the judgment in
the action, or when a specific sum of money has
been expressly stipulated by the parties to a bond
or other contract as the amount of damages to be
recovered by either party for a breach of the
agreement by the other. Keeble v. Keeble, 85 Ala.
552, 5 So. 149; Eakin v. Scott, 70 Tex. 442, 7 S.W.
777; Cochrane v. Forbes, 267 Mass. 417, 166 N.E.
752, 753; Varno v. Tindall, 164 Tenn. 642, 51 S.W.
2d 502, 503; Norwood Morris Plan Co. v. Mc-
Carthy, 295 Mass. 597, 4 N.E.2d 450, 454, 107 A.L.
R. 1215; Factory Realty Corporation v. Corbin-
Holmes Shoe Co., 312 Mass. 325, 44 N.E.2d 671,
674. The purpose of a penalty is to secure per-
formance, while the purpose of stipulating dam-
ages is to fix the amount to be paid in lieu of per-
formance. Christianson v. Haugland, 163 Minn. 73,
203 N.W. 433, 434; Davidow v. Wadsworth Mfg.
Co., 211 Mich. 90, 178 N.W. 776, 777, 12 A.L.R.
605; Forsyth v. Central Foundry Co., 240 Ala.
277, 198 So. 706, 710. The essence of a penalty is
a stipulation as in terrorem while the essence of
liquidated damages is a genuine covenanted pre-
estimate of such damages. Shields v. Early, 132
Miss. 282, 95 So. 839, 840. For other cases per-
taining to the distinction between a penalty and
liquidated damages, see Fiscal Court of Franklin
County v. Kentucky Public Service Co., 181 Ky.
245, 204 S.W. 77, 79; In re Liberty Doll Co., D.C.
N.Y., 242 F. 695, 701; Miller v. Blockberger, 111
Ohio St. 798, 146 N.E. 206, 209; Armstrong v. Ir-
win, 26 Ariz. 1, 221 P. 222, 225, 32 A.L.R. 609.
Necessary damages
A term said to be of much wider scope in the
law of damages than "pecuniary." It embraces
all those consequences of an injury usually de-
nominated "general" damages, as distinguished
from special damages; whereas the phrase "pe-
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DAMAIOUSE
cuniary damages" covers a smaller class of dam-
ages within the larger class of "general" damages.
Browning v. Wabash Western R. Co., Mo., 24 S.
W. 746.
Nominal damages
Nominal damages are a trifling sum awarded
to a plaintiff in an action, where there is no sub-
stantial loss or injury to be compensated, but
still the law recognizes a technical invasion of
his rights or a breach of the defendant's duty, or
in cases where, although there has been a real
injury, the plaintiff's evidence entirely fails to
show its amount. Seeling v. Missouri, K. & T. Ry.
Co., 287 Mo. 343, 230 S.W. 94, 102; City of Rainier
v. Masters, 79 Or. 534, 155 P. 1197, 1198, L.R.A.
1916E, 1175; Springer v. Fuel Co., 196 Pa. 156, 46
A. 370.
Pecuniary damages
Such as can be estimated in and compensated
by money; not merely the loss of money or sal-
able property or rights, but all such loss, depriva-
tion, or injury as can be made the subject of cal:
culation and of recompense in money. Walker v.
McNeill, 17 Wash. 582, 50 P. 518; Davidson Bene-
dict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967.
Permanent damages
Damages awarded on theory that cause of in-
jury is fixed and that the property will always
remain subject to it. Chambers v. Spruce Light-
ing Co., 81 W.Va. 714, 95 S.E. 192, 194.
Presumptive damages
A term occasionally used as the equivalent of
"exemplary" or "punitive" damages. Murphy v.
Hobbs, 7 Colo. 541, 5 P. 119, 49 Am.Rep. 366.
Prospective damages
Damages which are expected to follow from
the act or state of facts made the basis of a plain-
tiff's suit; damages which have not yet accrued,
at the time of the trial, but which, in the nature
of things, must necessarily, or most probably, re-
sult from the acts or facts complained of.
Proximate damages
Proximate damages are the immediate and di-
rect damages and natural results of the act com-
plained of, and such as are usual and might have
been expected. Remote damages are those at-
tributable immediately to an intervening cause,
though it forms a link in an unbroken chain of
causation, so that the remote damage would not
have occurred if its elements had not been set
in motion by the original act or event. Pielke v.
Railroad Co., 5 Dak. 444, 41 N.W. 669; Chambers
v. Everding & Farrell, 71 Or. 521, 143 P. 616, 619.
Remote damages
The unusual and unexpected result, not reason-
ably to be anticipated from an accidental or un-
usual combination of circumstances-a result be-
yond which the negligent party has no control.
Chambers v. Everding & Farrel, 71 Or. 521, 143
P. 616, 620.
Damage is said to be too remote to be action-
able when it is not the legal and natural conse-
quence of the act complained of.
The terms "remote damages" and "consequential dam-
ages" are not synonymous nor to be used interchangeably;
all remote damage is consequential, but it is by no means
true that all consequential damage is remote. Eaton v.
Railroad Co., 51 N.H. 511, 12 Am.Rep. 147; Chambers v.
Everding & Farrell, 71 Or. 521, 143 P. 616, 620.
Special damages
Those which are the actual, but not the neces-
sary, result of the injury complained of, and
which in fact follow it as a natural and proximate
consequence in the particular case, that is, by
reason of special circumstances or conditions.
Wallace v. Ah Sam, 71 Cal. 197, 12 P. 46, 60 Am.
Rep. 534; Lawrence v. Porter, C.C.A.Mich., 63 F.
62, 11 C.C.A. 27, 26 L.R.A. 167; Huyler's v. Ritz-
Carlton Restaurant & Hotel Co. of Atlantic City,
D.C.Del., 6 F.2d 404, 406. Those which are the
natural, but not the necessary, result of the in-
jury. Butte Floral Co. v. Reed, 65 Mont. 138, 211
P. 325, 330; Ralph N. Blakeslee Co. v. Rigo, 94
Conn. 481, 109 A. 173,175; Erick Bowman Remedy
Co. v. Jensen Salsbery Laboratories, C.C.A.Minn.,
17 F.2d 255, 259, 52 A.L.R. 1187.
Speculative damages
Prospective or anticipated damages from the
same acts or facts constituting the present cause
of action, but which depend upon future develop-
ments which are contingent, conjectural, or im-
probable.
Substantial damages
A sum, assessed by way of damages, which is
worth having; opposed to nominal damages,
which are assessed to satisfy a bare legal right.
Wharton. Considerable in amount and intended
as a real compensation for a real injury.
Temporary damages
Damages allowed for intermittent and occa-
sional wrongs, such as injuries to real estate,
where cause thereof is removable or abatable.
Chambers v. Spruce Lighting Co., 81 W.Va. 714,
95 S.E. 192, 194.
Unliquidated damages
Such as are not yet reduced to a certainty in
respect of amount, nothing more being estab-
lished than the plaintiff's right to recover; or
such as cannot be fixed by a mere mathematical
calculation from ascertained data in the case.
Cox v. McLaughlin, 76 Cal. 60, 18 P. 100, 9 Am.
St.Rep. 164; Cook Pottery Co. v. Parker, 86 W.
Va. 580, 104 S.E. 51, 53; United Cigarette Mach.
Co. v. Brown, 119 Va. 813, 89 S.E. 850, 855, L.R.A.
1917A, 1190; Simons v. Douglas Ex'r, 189 Ky.
644, 225 S.W. 721, 723.
DAMAIOUSE. In old English law. Causing dam-
age or loss, as distinguished from torcenouse,
wrongful. Britt. c. 61.
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DAME
DAME. In English law. The legal designation
of the wife of a knight or baronet.
DAMN, v. To invoke condemnation, curse, swear,
condemn to eternal punishment, or consign to
perdition. Orf v. State, 147 Miss. 160, 113 So. 202.
DAMNA. Damages, both inclusive and exclusive
of costs.
DAMNATUS. In old English law. Condemned;
prohibited by law; unlawful. Damnatus coitus,
an unlawful sexual connection.
DAMNI INJURLE ACTIO. An action given by
the civil law for the damage done by one who
intentionally injured the slave or beast of another.
Calvin.
DAMNIFICATION. That which causes damage
or loss.
DAMNIFY. To cause damage or injurious loss
to a person or put him in a position where he
must sustain it. A surety is "damnified" when a
judgment has been obtained against him. McLean
v. Bank, 16 Fed.Cas. 278.
DAMNOSA HiEREDITAS. In the civil law. A
losing inheritance; an inheritance that was a
charge, instead of a benefit. Dig. 50, 16, 119.
The term has also been metaphorically applied
to that species of property of a bankrupt which,
so far from being valuable, would be a charge
to the creditors; for example, a term of years
where the rent would exceed the revenue. 7 East,
342; 3 Camp. 340; 1 Esp.N.P. 234; Provident L.
& Trust Co. v. Fidelity, etc., Co., 203 Pa. 82, 52 A.
34.
DAMNUM. Lat.
In the Civil Law
Damage; the loss or diminution of what is a
man's own, either by fraud, carelessness, or acci-
dent.
In Pleading and Old English Law
Damage; loss.
DAMNUM ABSQUE INJURIA. Loss, hurt, or
harm without injury in the legal sense, that is,
without such breach of duty as is redressible by
an action. A loss which does not give rise to an
action for damages against the person causing it.
West Virginia Transp. Co. v. Standard Oil Co., 50
W.Va. 611, 40 S.E. 591, 56 L.R.A. 804; J. A. & C.
E. Bennett v. Winston-Salem Southbound Ry. Co.,
170 N.C. 389, 87 S.E. 133, 134, L.R.A.1916D, 1074;
Wisconsin Telephone Co. v. Railroad Commission
of Wisconsin, 162 Wis. 383, 156 N.W. 614, 619, L.
R.A.1916E, 748; Cleveland, C., C. & St. L. Ry. Co.
v. Mumford, 208 Ind. 655, 197 N.E. 826, 834; Ala-
bama Power Co. v. Ickes, App.D.C., 302 U.S. 464,
58 S.Ct. 300, 303, 82 L.Ed. 374.
DAMNUM FATALE. Fatal damage; damage
from fate; loss happening from a cause beyond
human control, (quod ex fato contingit,) or an act
of God, for which bailees are not liable; such as
shipwreck, lightning, and the like. Dig. 4, 9, 3, 1;
Story, Bailm. § 465. The civilians included in the
phrase "damnum fatale" all those accidents which
are summed up in the common-law expression,
"Act of God or public enemies;" though, perhaps,
it embraced some which would not now be admit-
ted as occurring from an irresistible force. Thick-
stun v. Howard, 8 Blackf. Ind. 535.
DAMNUM INFECTUM. In Roman law. Damage
not yet committed, but threatened or impending.
A preventive interdict might be obtained to pre-
vent such damage from happening; and it was
treated as a quasi-delict, because of the immin-
ence of the danger.
DAMNUM REI AMISSAE. In the civil law. A
loss arising from a payment made by a party in
consequence of an error of law. Mackeld. Rom.
Law, § 178.
DAMNUM SINE INJURIA. ESSE POTEST. Lofft,
112. There may be damage or injury inflicted
without any act of injustice.
DAN. Anciently the better sort of men in Eng-
land had this title; so the Spanish Don. The old
term of honor for men, as we now say Master or
Mister. Wharton.
DANCEHALL. A place maintained for promiscu-
ous and public dancing, the rules for admission
to which are not based upon personal selection
or invitation. State v. Loomis, 75 Mont. 88, 242
P. 344, 347; People v. Dever, 237 I1l.App. 65, 69.
DANEGELT, DANEGELD. A tribute originally
of 1s. and afterwards of 2s., which came to be im-
posed upon every hide of land through the realm,
levied by the Anglo-Saxons, for maintaining (it
is supposed) such a number of forces as were
thought sufficient to clear the British seas of
Danish pirates, who greatly annoyed their coasts,
or to buy off the ravages of Danish invaders. It
continued a tax until the time of Stephen, and was
one of the rights of the crown. Wharton; Web-
ster, Dict. The Danegeld was levied as a land-
tax by the Norman kings; it disappears under
that name after 1163, but in fact continued under
the name of tallage. 3 New English Dict. 26.
DANELAGE. A system of laws, introduced by.
the Danes on their invasion and conquest of Eng-
land, which was principally maintained in some
of the midland counties, and also on the eastern
coast. 1 Bl.Comm. 65; 4 Bl.Comm. 411; 1 Steph.
Comm. 42.
DANGER. Jeopardy; exposure to loss or injury;
peril. U. S. v. Mays, 1 Idaho, 770; State v. Londe,
345 Mo. 185, 132 S.W.2d 501, 506.
DANGER ZONE. The "danger zone" within con-
templation of the humanitarian doctrine depends
upon the facts in the particular case. Brown v.
Alton R. Co., Mo.App., 132 S.W.2d 713, 727; Brown
v. Alton R. Co., 236 Mo.App. 26, 151 S.W.2d 727,
742.
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DASH
Dangers of Navigation
The same as "dangers of the sea" or "perils of
the sea." See Dangers of the sea, infra.
Dangers of the River
This phrase, as used in bills of lading, means
only the natural accidents incident to river navi-
gation, and does not embrace such as may be
avoided by the exercise of that skill, judgment, or
foresight which are demanded from persons in a
particular occupation. Hill v. Sturgeon, 35 Mo.
213, 86 Am.Dec. 149. It includes dangers arising
from unknown reefs which have suddenly formed
in the channel, and are not discoverable by care
and skill. Hill v. Sturgeon, 35 Mo. 213, 86 Am.
Dec. 149; Hibernia Ins. Co. v. Transp. Co., 120 U.
S. 166, 7 S.Ct. 550, 30 L.Ed. 621; Johnson v. Friar,
4 Yerg. 48, 26 Am.Dec. 215.
Dangers of the Road
This phrase, in a bill of lading, when it refers
to inland transportation, means such dangers as
are immediately caused by roads, as the over-
turning of carriages in rough and precipitous
places. 7 Exch. 743.
Dangers of the Sea
The expression "dangers of the sea" means
those accidents peculiar to navigation that are of
an extraordinary nature, or arise from irresistible
force or overwhelming power, which cannot be
guarded against by the ordinary exertions of hu-
man skill and prudence. The Portsmouth, 9 Wall.
682, 19 L.Ed. 754; Hibernia Ins. Co. v. Transp. Co.,
120 U.S. 166, 7 S.Ct. 550, 30 L.Ed. 621; The Mau-
mee, D.C.N.C., 260 F. 862, 870; equivalent to
"dangers of navigation." Norris Grain Co. v.
Great Lakes Transit Corporation, C.C.A.I11., 70 F.
2d 32, 34.
DANGERIA. In old English law. A money pay-
ment made by forest-tenants, that they might
have liberty to plow and sow in time of pannage,
or mast feeding.
DANGEROUS. Attended with risk; perilous;
hazardous; unsafe. Scales v. Lewellyn, 172 N.C.
494, 90 S.E. 521, 522; King v. Smythe, 140 Tenn.
217, 204 S.W. 296, 297, L.R.A.1918F, 293; Bentson
v. Brown, 186 Wis. 629, 203 N.W. 380, 382, 38 A.L.
R. 1417; Davis v. East Contra Costa Irr. Dist.,
Cal.App., 109 P.2d 986, 989.
DANGEROUS MACHINE. A machine is "dan-
gerous" in such sense that the employer is required
to guard it, if, in the ordinary course of human
affairs, danger may be reasonably anticipated
from the use of it without protection. Simon v.
St. Louis Brass Mfg. Co., 298 Mo. 70, 250 S.W. 74,
76.
DANGEROUS PER SE. A thing that may inflict
injury without the immediate application of hu-
man aid or instrumentality. Southern Cotton Oil
Co. v. Anderson, 80 Fla. 441, 86 So. 629, 632, 16 A.
L.R. 255.
DANGEROUS PLACE. One where there is con-
siderable risk, or danger, or peril, one where ac-
cidents or injuries are very apt to occur. Henrie
v. Rocky Mountain Packing Corp., Utah, 196 P.2d
487, 489.
DANGEROUS WEAPON. One dangerous to life;
one by the use of which a fatal wound may prob-
ably or possibly be given. As the manner of use
enters into the consideration as well as other cir-
cumstances, the question is often one of fact for
the jury, but not infrequently one of law for the
court. U. S. v. Reeves, C.C.Tex., 38 F. 404; Par-
man v. Lemmon, 119 Kan. 323, 244 P. 227, 229, 44
A.L.R. 1500; State v. Penton, 157 La. 68, 102 So.
14, 15; deadly weapon distinguished State v. Wal-
den, 41 N.M. 418, 70 P.2d 149, 150; Crawford v.
State, 174 Md. 175, 197 A. 866, 867.
DANISM. The act of lending money on usury.
DANO. In Spanish law. Damage; the deteriora-
tion, injury, or destruction which a man suffers
with respect to his person or his property by the
fault (culpa) of another. White, New Recop. b.
2, tit. 19, c. 3, § 1.
DANS ET RETINENS, NIHIL DAT. One who
gives and yet retains does not give effectually.
Tray. Lat. Max. 129. Or, one who gives, yet re-
tains, [possession,) gives nothing.
DAPIFER. A steward either of a king or lord.
Spelman.
DARE. Lat. In the civil law. To transfer prop-
erty. When this transfer is made in order to dis-
charge a debt, it is datio solvendi animo; when
in order to receive an equivalent, to create an ob-
ligation, it is datio contrahendi animo; lastly,
when made donandi animo, from mere liberality,
it is a gift, dono datio.
DARE AD REMANENTIAM. To give away in
fee, or forever.
DARRAIGN. To clear a legal account; to an-
swer an accusation; to settle a controversy.
DARREIN. L. Fr. Last.
DARREIN CONTINUANCE. The last continu-
ance.
DARREIN PRESENTMENT. In old English law.
The last presentment. See Assise of darrein pre-
sentment.
DARREIN SEISIN. Last seisin. A plea which
lay in some cases for the tenant in a writ of right.
See 1 Rosc. Real Act. 206; Hunt v. Hunt, 3 Metc.
Mass. 184; Jackson, Real Act. 285. See 1 Roscoe,
Real Act. 206; 2 Prest. Abstr. 345.
DASH. The em dash (-) or the en dash (-) is
often used to indicate the omission of the inter-
mediate terms of a series which are to be supplied
in reading, being thus often equivalent to * * *
inclusive; thus Mark iv, 3-20 (that is, verses 3
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DATA
to 20, inclusive) ; the years 1880-1888 (that is,
1880 to 1888). Booe v. Sims, 139 Ark. 595, 215
S.W. 659, 660.
DATA. In old practice and conveyancing. The
date of a deed; the time when it was given; that
is, executed. Grounds whereon to proceed; facts
from which to draw a conclusion.
DATE. The specification or mention, in a written
instrument, of the time (day, month and year)
when it was made. Also the time so specified.
Interior Linseed Co. v. Becker-Moore Paint Co.,
273 Mo. 433, 202 S.W. 566, 569; In re Carpenter's
Estate, 172 Cal. 268, 156 P. 464, 465, L.R.A.1916E,
498; State v. Beckley, 192 Wis. 367, 212 N.W. 792,
793; Heller v. Sweeney, 101 N.J.Eq. 150, 135 A.
264, 265.
The word is derived from the Latin word "da-
tum" meaning given and is defined as the time
given or specified-in some way ascertained and
fixed. The time when an instrument was made,
acknowledged, delivered or recorded; the clause
or memorandum which specifies that fact; and
the time from which its operation is to be reckon-
ed. In re Irvine's Estate, 114 Mont. 577, 139 P.2d
489, 490, 491, 47 A.L.R. 882.
That part of a deed or writing which expresses
the day of the month and year in which it was
made or given. 2 Bl.Comm. 304; Tomlins.
The primary signification of date is not time in
the abstract, nor time taken absolutely, but time
given or specified; time in some way ascertained
and fixed. When we speak of the date of a deed,
date of issue of a bond or date of a policy, we do
not mean the time when it was actually executed,
but the time of its execution, as given or stated in
the deed itself. The date of an item, or of a
charge in a book-account, is not necessarily the
time when the article charged was, in fact, fur-
nished, but rather the time given or set down in
the account, in connection with such charge. And
so the expression "the date of the last work done,
or materials furnished," in a mechanic's lien law,
may be taken, in the absence of anything in the
act indicating a different intention, to mean the
time when such work was done or materials fur-
nished, as specified in the plaintiff's written claim.
Bement v. Manufacturing Co., 32 N.J.Law, 513;
Mutual Life Ins. Co. of New York v. Hurni Pack-
ing Co., 263 U.S. 167, 44 S.Ct. 90, 68 L.Ed. 235, 31
A.L.R. 102; Mutual Life Ins. Co. of New York v.
Hurni Packing Co., C.C.A.Iowa, 280 F. 18, 20;
Turner v. Roseberry Irr. Dist., 33 Idaho, 746, 198
P. 465, 467.
The precise meaning of date, however, depends upon
context, since there are numerous instances when it means
actual as distinguished from conventional time. Buck-
hannon & N. R. Co. v. Great Scott Coal & Coke Co., 75 W.
Va. 423, 83 S.E. 1031, 1033; London Guarantee & Accident
Co. v. Empire Plow Co., 115 Ohio St. 684, 155 N.E. 382, 384;
National Liberty Ins. Co. v. Norman, C.C.A.N.C., 11 F.2d
59, 61; Cantrell v. Prudential Ins. Co. of America, 189
Wash. 99, 63 P.2d 509, 510.
DATE CERTAINE. In French law. A deed is
said to have a date certaine (fixed date) when it
has been subjected to the formality of registra-
tion; after this formality has been complied with,
the parties to the deed cannot by mutual consent
change the date thereof. Arg. Fr. Merc. Law, 555.
DATE OF INJURY. Means inception date of the
injury and is regarded as coincident with date of
occurrence or happening of accident which caused
such injury. Indemnity Ins. Co. of North America
v. Williams, 129 Tex. 51, 99 S.W.2d 905, 907; As-
sociated Indemnity Corporation v. State Industrial
Accident Commission, 124 Cal.App. 378, 12 P.2d
1075, 1076; Larson v. Industrial Commission, 224
Wis. 294, 271 N.W. 835, 836. Date of the compen-
sable injury and not date of accident or occur-
rence from which incapacity resulted. Rossi V.
Thomas F. Jackson Co., 120 Conn. 456, 181 A. 539.
"DATE OF ISSUE." When applied to notes, bonds,
etc., of series, usually means an arbitrary date
fixed as beginning of term for which they run,
without reference to precise time when conven-
ience or state of market may permit their sale or
delivery, date which bonds and stocks bear, and
not date when they were actually issued in sense
of being signed and delivered and put into circula-
tion. Whetstone v. City of Stuttgart, 193 Ark.
88, 97 S.W.2d 641, 643.
The words in life policy were held not to mean
the date of actual execution or the delivery date,
but the date set forth in the policy itself. Potts
v. Metropolitan Life Ins. Co., 133 Pa.Super. 397,
2 A.2d 870, 872.
DATIO. In the civil law. A giving, or act of giv-
ing. Datio in solutum; a giving in payment; a
species of accord and satisfaction. Called, in_
modern law, "dation."
DATION. In the civil law. A gift; a giving of
something. It is not exactly synonymous with
"donation," for the latter implies generosity or
liberality in making a gift, while dation may mean
the giving of something to which the recipient is
already entitled.
DATION EN PAIEMENT. In French law. A
giving by the debtor and receipt by the creditor of
something in payment of a debt, instead of a sum
of money. It is somewhat like the accord and
satisfaction of the common law. 16 Toullier, no.
45; Poth. Vente, no. 601.
DATIVE. A word derived from the Roman law,
signifying "appointed by public authority." Thus,
in Scotland, an executor-dative is an executor ap-
pointed by a court; corresponding or equivalent
to an English administrator or "administrator
with the will annexed." Mozley & Whitley. In old
English law. In one's gift; that may be given and
disposed of at will and pleasure.
DATUM. A first principle; a thing given; a date.
DATUR DIGNIORI. It is given to the more
worthy. 2 Vent. 268.
DAUGHTER. An immediate female descendant.
People v. Kaiser, 119 Cal. 456, 51 P. 702. May in-
clude the issue of a daughter. Buchanan v. Lloyd,
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DAY
88 Md. 462, 41 A. 1075; Jamison v. Hay, 46 Mo.
546. May designate a natural or illegitimate fe-
male child, State v. Laurence, 95 N.C. 659, not an
adopted daughter, a stepdaughter, or daughter-in-
law. State v. Youst, 74 Ohio App. 381, 59 N.E.2d
167, 168.
The female offspring of a man or woman. State
v. Lee, 196 Miss. 311, 17 So.2d 277, 278, 151 A.L.R.
1143.
DAUGHTER-IN-LAW. The wife of one's son.
DAUPHIN. In French law. The title of the eld-
est sons of the kings of France. Disused since
1830.
DAY. 1. A period of time consisting of twenty-
four hours and including the solar day and the
night. Co. Litt. 135a; Fox v. Abel, 2 Conn. 541.
2. The period of time during which the earth
makes one revolution on its axis. Long v. City of
Wichita Falls, 142 Tex. 202, 176 S.W.2d 936, 938,
939.
3. The space of time which elapses between
two successive midnights. 2 Bl.Comm. 141; State
v. Michel, 52 La.Ann. 936, 27 So. 565, 49 L.R.A. 218;
Stevenson v. Donnelly, 221 Mass. 161, 108 N.E.
926, 927, Ann.Cas.1917E, 932; Long v. City of Wi-
chita Falls, 142 Tex. 202, 176 S.W.2d 936, 938, 939.
4. The whole or any part of period of 24 hours
from midnight to midnight. Talbott v. Caudill,
248 Ky. 146, 58 S.W.2d 385.
5. That portion of time during which the sun
is above the horizon, and, in addition, that part of
the morning and evening during which there is
sufficient light for the features of a man to be
reasonably discerned. 3 Inst. 63; Nicholls v.
State, 68 Wis. 416, 32 N.W. 543, 60 Am.Rep. 870;
State v. McKnight, 111 N.C. 690, 16 S.E. 319; U.
S. v. Martin, D.C.Mass., 33 F.2d 639, 640.
6. An artificial period of time, computed from
one fixed point to another twenty-four hours later,
without any reference to the prevalence of light
or darkness. Fuller v. Schroeder, 20 Neb. 631, 31
N.W. 109.
7. The period of time, within the limits of a
natural day, set apart either by law or by com-
mon usage for the transaction of particular busi-
ness or the performance of labor; as in banking,
in laws regulating the hours of labor, in con-
tracts for so many "days' work," and the like, the
word "day" may signify six, eight, ten, or any
number of hours. Fay v. Brown, 96 Wis. 434, 71
N.W. 895; McCulsky v. Klosterman, 20 Or. 108, 25
P. 366, 10 L.R.A. 785.
8. In practice and pleading. A particular time
assigned or given for the appearance of parties
in court, the return of writs, etc.
When considered in computing time, it is an indivisible
point of time, Williams v. Williams, 325 Mo. 963, 30 S.W.2d
69, 71; Fiedler v. Eckfeldt, 335 Ill. 11, 166 N.E. 504, 507;
Greulich v. Monnin, 142 Ohio St. 113, 50 N.E.2d 310, 312;
but that it is not divisible is a mere fiction, only observed
for the purposes of justice and never adhered to when it
would work mischief. Greulich v. Monnin, Ohio App., 45
N.E.2d 212, 217. Durstin v. Dodge, 138 Me. 12, 20 A.2d 671,
672.
Regardless of the duration of the "day," the law often
disregards fractions, where priority is not concerned.
Franklin v. State, 9 Okl.Cr. 178, 131 P. 183, 184; Harris
County v. Hammond, Tex.Civ.App., 203 S.W. 451, 453;
State ex rel. Jones v. Board of Deputy State Supervisors
& Inspectors of Elections of Montgomery County, 93 Ohio
St. 14, 112 N.E. 136, 137; First National Bank v. Burk-
hardt, 100 U.S. 686, 25 L. Ed. 766.
Astronomical Day
The period of twenty-four hours beginning and
ending at noon.
Artificial Day
The time between the rising and setting of the
sun; that is, day or daytime as distinguished
from night.
Calendar Days
See Calendar.
Civil Day
The solar day, measured by the diurnal revolu-
tion of the earth, and denoting the interval of
time which elapses between the successive tran-
sits of the sun over the same hour circle, so that
the "civil day" commences and ends at midnight.
Pedersen v. Eugster, D.C.La., 14 F. 422.
Clear Days
See Clear.
Common Day
In old English practice. An ordinary day in
court. Cowell; Termes de la Ley.
Judicial Day
A day on which the court is actually in session.
Heffner v. Heffner, 48 La.Ann. 1088, 20 So. 281.
Juridical Day
A day proper for the transaction of business in
court; one on which the court may lawfully sit,
excluding Sundays and some holidays.
Law Day
The day prescribed in a bond, mortgage, or de-
feasible deed for payment of the debt secured
thereby, or, in default of payment, the forfeiture
of the property mortgaged. But this does not
now occur until foreclosure. Ward v. Lord, 100
Ga. 407, 28 S.E. 446; Kortright v. Cady, 21 N.Y.
345, 78 Am.Rep. 145.
Legal Day
A juridical day. See supra. And see Heffner
v. Heffner, 48 La.Ann. 1088, 20 So. 281.
Natural Day
Properly the period of twenty-four hours from
midnight to midnight. Co.Litt. 135; Fox v. Abel,
2 Conn. 541; People v. Hatch, 33 Ill. 137. Though
sometimes taken to mean the daytime or time
between sunrise and sunset. In re Ten Hour Law,
24 R.I. 603, 54 A. 602, 61 L.R.A. 612.
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DAY
Non-judicial Day
One on which process cannot ordinarily issue
or be served or returned and on which the courts
do not ordinarily sit. Whitney v. Blackburn, 17
Or. 564, 21 P. 874, 11 Am.St.Rep. 857. More prop-
erly "non-juridical day."
Solar Day
A term sometimes used as meaning that por-
tion of the day when the sun is above the horizon,
but properly it is the time between two complete
(apparent) revolutions of the sun, or between
two consecutive positions of the sun over any
given terrestrial meridian, and hence, according
to the usual method of reckoning, from noon to
noon at any given place.
DAY-BOOK. A tradesman's account book; a
book in which all the occurrences of the day are
set down. It is usually a book of original en-
tries.
DAY CERTAIN. A fixed or appointed day; a
specified particular day; a day in term. Regina
v. Conyers, 8 Q.B. 991.
DAY FIXED FOR TRIAL. Has been held to
mean return day of summons or any later day to
which trial is adjourned and on which it is ac-
tually held. Okin v. Shafman, N.J,, 11 N.J.Misc.
462, 166 A. 730.
DAY IN COURT. The time appointed for one
whose rights are called judicially in question, or
liable to be affected by judicial action, to appear
in court and be heard in his own behalf. This
phrase, as generally used, means not so much
the time appointed for a hearing as the opportun-
ity to present one's claims or rights in a proper
forensic hearing before a competent tribunal. See
Ferry v. Car Wheel Co., 71 Vt. 457, 45 A. 1035, 76
Am.St.Rep. 782.
A litigant has his "day in court" when he has
been duly cited to appear and has been afforded
an opportunity to appear and to be heard. Cohen
v. City of Houston, Tex.Civ.App., 185 S.W.2d 450,
452; In re Hampton's Estate, 55 Cal.App.2d 543,
131 P.2d 565, 573; State ex rel. Allstate Ins. Co. v.
Bowen, 130 Ohio St. 347, 199 N.E. 355, 363.
DAY OF ATONEMENT. See Yom Kippur.
DAYERIA. A dairy. Cowell.
DAYLIGHT. That portion of time before sun-
rise, and after sunset, which is accounted part of
the day, (as distinguished from night,) in defining
the offense of burglary. 4 Bl.Comm. 224; Cro.
Jac. 106.
DAY-RULE, or DAY-WRIT. In English law. A
permission granted to a prisoner to go out of
prison, for the purpose of transacting his busi-
ness, as to hear a case in which he is concerned
at the assizes, etc. Abolished by 5 & 6 Vict. c. 22,
§ 12.
DAYS IN BANK. (L. Lat. dies in banco.) In
practice. Certain stated days in term appointed
for the appearance of parties, the return of pro-
cess, etc., originally peculiar to the court of com-
mon pleas, or bench, (bank,) as it was anciently
called. 3 Bl.Comm. 277.
By the common law, the defendant is allowed
three full days in which to make his appearance
in court, exclusive of the day of appearance or
return-day named in the writ; 3 Bl.Comm. 278.
Upon his appearance, time is usually granted him
for pleading; and this is called giving him day,
or, as it is more familiarly expressed, a contin-
uance. 3 Bl.Comm. 316. When the suit is ended
by discontinuance or by judgment for the defend-
ant, he is discharged from further attendance,
and is said to go thereof sine die, without day.
See Continuance.
DAYS OF GRACE. A number of days allowed,
as a matter of favor or grace, to a person who
has to perform some act, or make some payment,
after the time originally limited for the purpose
has elapsed. In old practice. Three days allowed
to persons summoned in the English courts, be-
yond the day named in the writ, to make their
appearance; the last day being called the "quarto
die post." 3 Bl.Comm. 278. In mercantile law.
A certain number of days (generally three) al-
lowed to the maker or acceptor of a bill, draft, or
note, in which to make payment, after the expira-
tion of the time expressed in the paper itself.
Originally these days were granted only as a
matter of grace or favor, but the allowance of
them became an established custom of merchants,
and was sanctioned by the courts, (and in some
cases prescribed by statute,) so that they are now
demandable as of right. Bell v. Bank, 115 U.S.
373, 6 S.Ct. 105, 29 L.Ed. 409; Renner v. Bank,
9 Wheat. 581, 6 L.Ed. 166.
DAYSMAN. An arbitrator, umpire, or elected
judge. Cowell.
DAYTIME. The time during which there is the
light of day, as distinguished from night or night-
time. That portion of the twenty-four hours dur-
ing which a man's person and countenance are
distinguishable. Trull v. Wilson, 9 Mass. 154;
Rex v. Tandy, 1 Car. & P. 297; Linnen v. Banfield,
114 Mich. 93, 72 N.W. 1; U. S. v. Syrek, D.C.Mass.,
290 F. 820, 821; Deese v. City of Lodi, 21 Cal.App.
2d 631, 69 P.2d 1005, 1008.
DAYWERE. In old English law. A term applied
to land, and signifying as much arable ground as
could be plowed up in one day's work. Cowell.
DE. A Latin preposition, signifying of; by;
from; out of; affecting; concerning; respecting.
DE ACQUIRENDO RERUM DOMINIO. Of
(about) acquiring the ownership of things. Dig.
41, 1; Bract. lib. 2, fol. 8b.
DE ADMENSURATIONE. Of admeasurement.
Thus, de admensuratione dotis was a writ for the
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DE AVERUS
admeasurement of dower, and de admensuratione
pasturce was a writ for the admeasurement of
pasture.
DE ADVISAMENTO CONSILII NOSTRI. L. Lat.
With or by the advice of our council. A phrase
used in the old writs of summons to parliament.
Crabb, Eng.Law, 240.
DE ZEQUITATE. In equity. De jure stricto, nihil
possum vendicare, de cequitate tamen, nullo modo
hoc obtinet; in strict law. I can claim nothing,
but in equity this by no means obtains. Fleta, lib.
3, c. 2, § 10.
DE IESTIMATO. In Roman law. One of the in-
nominate contracts, and, in effect, a sale of land
or goods at a price fixed, (cestimato,) and guaran-
tied by some third party, who undertook to find a
purchaser.
DE ZETATE PROBANDA. For proving age. A
writ which formerly lay to summon a jury in
order to determine the age of the heir of a tenant
in capite who claimed his estate as being of full
age. Fitzh.Nat.Brev. 257; Reg.Orig. 294.
DE ALEATORIBUS. About gamesters. The
name of a title in the Pandects. Dig. 11, 5.
DE ALLOCATIONE FACIENDA, Breve. Writ
for making an allowance. An old writ directed
to the lord treasurer and barons of the exchequer,
for allowing certain officers (as collectors of cus-
toms) in their accounts certain payments made by
them. Reg.Orig. 192.
DE ALTO ET BASSO. Of high and low. A
phrase anciently used to denote the absolute sub-
mission of all differences to arbitration. Cowell.
DE AMBITU. Lat. Concerning bribery. A.
phrase descriptive of the subject-matter of sev-
eral of the Roman laws; as the Lex Aufidia, the
Lex Pompeia, the Lex Tullia, and others. See
Ambitus.
DE AMPLIORI GRATIA. Of more abundant or
especial grace. Townsh.Pl. 18.
DE ANNO BISSEXTILI. Of the bissextile or
leap year. The title of a statute passed in the
twenty-first year of Henry III., which in fact,
however, is nothing more than a sort of writ or
direction to the justices of the bench, instructing
them how the extraordinary day in the leap year
was to be reckoned in cases where persons had
a day to appear at the distance of a year, as on
the essoin de malo lecti, and the like. It was
thereby directed that the additional day should,
together with that which went before, be reckoned
only as one, and so, of course, within the preced-
ing year. 1 Reeve, Eng.Law, 266.
DE ANNUA PENSIONE, Breve. Writ of annual.
pension. An ancient writ by which the king, hav-
ing a yearly pension due him out of an abbey or
priory for any of his chaplains, demanded the
same of the abbot or prior, for the person named
in the writ. Reg.Orig. 265b, 307; Fitzh.Nat.Brev.
231 G.
DE ANNUO REDITU. For a yearly rent. A.
writ to recover an annuity, no matter how pay-
able, in goods or money. 2 Reeve, Eng.Law, 258.
DE APOSTATA CAPIENDO, Breve. Writ for
taking an apostate. A writ which anciently lay
against one who, having entered and professed
some order of religion, left it and wandered up
and down the country, contrary to the rules of
his order, commanding the sheriff to apprehend
him and deliver him again to his abbot or prior.
Reg.Orig. 71b, 267; Fitzh.Nat.Brev. 233, 234.
DE ARBITRATIONE FACTA. (Lat. Of arbitra-
tion had.) A writ formerly used when an action
was brought for a cause which had been settled
by arbitration. Wats.Arb. 256.
DE ARRESTANDIS BONIS NE DISSIPENTUR.
And old writ which lay to seize goods in the hands
of a party during the pendency of a suit, to pre-
vent their being made away with. Reg.Orig. 126b.
DE ARRESTANDO IPSUM QUI PECUNIAM RE-
CEPIT. A writ which lay for the arrest of one
who had taken the king's money to serve in the
war, and hid himself to escape going. Reg.Orig.
24b.
DE ARTE ET PARTE. Of art and part. A
phrase in old Scotch law. See Art and Part.
DE ASPORTATIS RELIGIOSORUM. Concerning
the property of religious persons carried away.
The title of the statute 35 Edward I. passed to
check the abuses of clerical possessions, one of
which was the waste they suffered by being drain-
ed into foreign countries. 2 Reeve, Eng.Law, 157;
2 Inst. 580.
DE ASSISA PROROGANDA. (Lat. For prorog-
uing assise.) A writ to put off an assise, issuing
to the justices, where one of the parties is en-
gaged in the service of the king.
DE ATTORNATO RECIPIENDO. A writ which
lay to the judges of a court, requiring them to
receive and admit an attorney for a party. Reg.
Orig. 172; Fitzh.Nat.Brev. 156.
DE AUDIENDO ET TERMINANDO. For hearing
and determining; to hear and determine. The
name of a writ, or rather commission granted to
certain justices to hear and determine cases of
heinous misdemeanor, trespass, riotous breach of
the peace, etc. Reg.Orig. 123, et seq.; Fitzh.Nat.
Brev. 110 B. See Oyer and Terminer.
DE AVERIIS CAPTIS IN WITIIERNAMIUM.
Writ for taking cattle in withernam. A writ
which lay where the sheriff returned to a pluries
writ of replevin that the cattle or goods, etc.,
were eloined, etc.; by which he was commanded
to take the cattle of the defendant in withernam,
(or reprisal,) and detain them until he could
replevy the other cattle. Reg.Orig. 82; Fitzh.
Nat.Brev. 73, E. F. See Withernam.
DE AVERIIS REPLEGIANDIS. A writ to re-
plevy beasts. 3 Bl.Comm. 149.
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DE AVERIIS
DE AVERIIS RETORNANDIS. For returning
the cattle. A term applied to pledges given in
the old action of replevin. 2 Reeve, Eng.Law, 177.
DE BANCO. Of the bench. A term formerly ap-
plied in England to the justices of the court of
common pleas, or "bench," as it was originally
styled.
DE BENE ESSE. Conditionally; provisionally;
in anticipation of future need. A phrase applied
to proceedings which are taken ex parte or pro-
visionally, and are allowed to stand as well done
for the present, but which may be subject to
future exception or challenge, and must then
stand or fall according to their intrinsic merit
and regularity.
Thus, "in certain cases, the courts will allow
evidence to be taken out of the regular course,
in order to prevent the evidence being lost by
the death or the absence of the witness. This is
called 'taking evidence de bene esse,' and is looked
upon as a temporary and conditional examina-
tion, to be used only in case the witness cannot
afterwards be examined in the suit in the regular
way." Hunt, Eq. 75; Haynes, Eq. 183; Mitt. Eq.
Pl. 52, 149; Willis v. Bank of Hardinsburg & Trust
Co., 160 Ky. 808, 170 S.W. 188, 189.
Examination de bene esse
A provisional examination of a witness ; an examination
of a witness whose testimony is important and might oth-
erwise be lost, held out of court and before the trial, with
the proviso that the deposition so taken may be used on the
trial in case the witness is unable to attend in person at
that time or cannot be produced.
DE BIEN ET DE MAL. L. Fr. For good and
evil. A phrase by which a party accused of a
crime anciently put himself upon a jury, indicat-
ing his entire submission to their verdict; also
the name of the special writ of jail delivery for-
merly in use in England, which issued for each
particular prisoner, of course. It was superseded
by the general commission of jail delivery.
DE BIENS LE MORT. L. Fr. Of the goods of
the deceased. Dyer, 32.
DE BIGAMIS. Concerning men twice married.
The title of the statute 4 Edw. I. St. 3; so called
from the initial words of the fifth chapter. 2
Inst. 272; 2 Reeve, Eng.Law, 142.
DE BONE MEMORIE. L. Fr. Of good memory;
of sound mind. 2 Inst. 510.
DE BONIS ASPORTATIS. For goods taken
away; for taking away goods. The action of
trespass for taking personal property is tech-
nically called "trespass de bonis asportatis." 1
Tidd, Pr. 5.
DE BONIS NON. An abbreviation of De bonis
non administratis, (q. v.). 1 Strange, 34.
DE BONIS NON ADMINISTRATIS. Of the
goods not administered. When an administrator
is appointed to succeed another, who has left the
estate partially unsettled, he is said to be granted
"administration de bonis non;" that is, of the
goods not already administered. McNair v. How-
le, 123 S.C. 252, 116 S.E. 279, 285.
DE BONIS NON AMOVENDIS. Writ for not re-
moving goods. A writ anciently directed to the
sheriffs of London, commanding them, in cases
where a writ of error was brought by a defend-
ant against whom a judgment was recovered, to
see that his goods and chattels were safely kept
without being removed, while the error remained
undetermined, so that execution might be had of
them, etc. Reg.Orig. 131b; Termes de la Ley.
DE BONIS PROPRIIS. Of his own goods. The
technical name of a judgment against an ad-
ministrator or executor to be satisfied from his
own property, and not from the estate of the de-
ceased, as in cases where he has been guilty of a
devastavit or of a false plea of plene adminis-
travit.
DE BONIS TESTATORIS, or INTESTATI. Of
the goods of the testator, or intestate. A term
applied to a judgment awarding execution against
the property of a testator or intestate, as distin-
guished from the individual property of his exec-
utor or administrator. 2 Archb.Pr.K.B. 148, 149.
DE BONIS TESTATORIS AC SL (Lat. From
the goods of the testator, if he has any, and, if not,
from those of the executor.) A judgment ren-
dered where an executor falsely pleads any mat-
ter as a release, or, generally, in any case where
he is to be charged in case his testator's estate
is insufficient.  1 Williams' Saund. 336b; Bac.
Abr. "Executor," B, 3; 2 Archb.Pr.K.B. 148.
DE BONO ET MALO. See De Bien et De Mal.
DE BONO GESTU. For good behavior; for good
abearance.
DE CZETERO. Henceforth.
DE CALCETO REPARANDO. Writ for repairing
a causeway. An old writ by which the sheriff
was commanded to distrain the inhabitants of a
place to repair and maintain a causeway, etc.
Reg. Orig. 154.
DE CAPITALIBUS DOMINIS FEODI. Of the
chief lords of the fee.
DE CAPITE MINUTIS. Of those who have lost
their status, or civil condition. Dig. 4, 5. The
name of a title in the Pandects. See Capitis De-
minutio.
DE CARTIS REDDENDIS. (For restoring char-
ters.) A writ to secure the delivery of charters
or deeds; a writ of detinue. Reg. Orig. 159b_
DE CATALLIS REDDENDIS. (For restoring
chattels.) A writ to secure the return specifically
of chattels detained from the owner. Cowell.
DE CAUTIONE ADMITTENDA. Writ to take
caution or security. A writ which anciently lay
against a bishop who held an excommunicated
person in prison for his contempt, notwithstand-
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DE CORPORE
ing he had offered sufficient security (idoneam
cautionem) to obey the commands of the church;
commanding him to take such security and re-
lease the prisoner. Reg. Orig. 66; Fitzh. Nat.
Brev. 63, C.
DE CERTIFICANDO. A writ requiring a thing to
be certified. A kind of certiorari. Reg. Orig. 151,
152.
DE CERTIORANDO. A writ for certifying. A.
writ directed to the sheriff, requiring him to cer-
tify to a particular fact. Reg. Orig. 24.
DE CHAMPERTIA. Writ of champerty. A writ
directed to the justices of the bench, command-
ing the enforcement of the statute of champertors.
Reg. Orig. 183; Fitzh. Nat. Brev. 172.
DE CHAR ET DE SANK. L. Fr. Of flesh and
blood. A ffaire rechat de char et de sank. Words
used in claiming a person to be a villein, in the
time of Edward II. Y. B. P. 1 Edw. II. p. 4.
DE CHIMINO. A writ for the enforcement of a
right of way. Reg. Orig. 155.
DE CIBARIIS UTENDIS. Of victuals to be used.
The title of a sumptuary statute passed 10 Edw.
III. St. 3, to restrain the expense of entertain-
ments. Barring. Ob. St. 240.
DE CLAMEA ADMITTENDA IN ITINERE PER
ATTORNATUM. See Clamea Admittenda, etc.
DE CLARO DIE. By daylight. Fleta, lib. 2, c. 76,
§ 8.
DE CLAUSO FRACTO. Of close broken; of
breach of close. See Clausum Fregit.
DE CLERICO ADMITTENDO. See Admittendo
Clerico.
DE CLERICO CAPTO PER STATUTUM MER-
CATORIUM DELIBERANDO. Writ for deliver-
ing a clerk arrested on a statute merchant. A
writ for the delivery of a clerk out of prison, who
had been taken and imprisoned upon the breach
of a statute merchant. Reg. Orig. 147b.
DE CLERICO CONVICTO DELIBERANDO. See
Clerico Convicto, etc.
DE CLERICO INFRA SACROS ORDINES CON-
STITUTO NON ELIGENDO IN OFFICIUM. See
Clerico Infra Sacros, etc.
DE CLERO. Concerning the clergy. The title of
the statute 25 Edw. III. St. 3; containing a varie-
ty of provisions on the subject of presentations,
indictments of spiritual persons, and the like. 2
Reeve, Eng. Law, 378.
DE COMBUSTIONE DOMORUM. Of house burn-
ing. One of the kinds of appeal formerly in use
in England. Bract. fol. 14619; 2 Reeve, Eng. Law,
38.
DE COMMUNI DIVIDUNDO. For dividing a
thing held in common. The name of an action
given by the civil law. Mackeld. Rom. Law, § 499.
DE COMON DROIT. L. Fr. Of common right;
that is, by the common law. Co. Litt. 142a.
DE COMPUTO. Writ of account. A writ com-
manding a defendant to render a reasonable ac-
count to the plaintiff, or show cause to the con-
trary. Reg. Orig. 135-138; Fitzh. Nat. Brev. 117,
E. The foundation of the modern action of ac-
count.
DE CONCILIO CURVE. By the advice (or direc-
tion) of the court.
DE CONFLICTU LEGUM. Concerning the con-
flict of laws. The title of several works written
on that subject. 2 Kent, Comm. 455.
DE CONJUNCTIM FEOFFATIS. Concerning per-
sons jointly enfeoffed, or seised. The title of the
statute 34 Edw. I., which was passed to prevent
the delay occasioned by tenants in novel disseisin,
and other writs, pleading that some one else was
seised jointly with them. 2 Reeve, Eng. Law, 243.
DE CONSANGUINEO, and DE CONSANGUINI-
TATE. Writs of cosinage, (q. v.).
DE CONSILIO. In old criminal law. Of counsel;
concerning counsel or advice to commit a crime.
Fleta, lib. 1, c. 31, § 8.
DE CONSILIO CURVE. By the advice or direc-
tion of the court. Bract. fol. 345b.
DE CONTINUANDO ASSISAM. Writ to continue
an assise. Reg. Orig. 217b.
DE CONTUMACE CAPIENDO. Writ for taking
a contumacious person. A writ which issues out
of the English court of chancery, in cases where
a person has been pronounced by an ecclesiastical
court to be contumacious, and in contempt. Shelf.
Mar. & Div. 494-496, and notes. It is a commit-
ment for contempt. Id.
DE COPIA LIBELLI DELIBERANDA. Writ for
delivering the copy of a libel. An ancient writ
directed to the judge of a spiritual court, com-
manding him to deliver to a defendant a copy of
the libel filed against him in such court. Reg.
Orig. 58. The writ in the register is directed to
the Dean of the Arches, and his commissary. Id.
DE CORONATORE ELIGENDO. Writ for elect-
ing a coroner. A writ issued to the sheriff in Eng-
land, commanding him to proceed to the election
of a coroner, which is done in full county court,
the freeholders being the electors. Sewell, Sher-
iffs, 372.
DE CORONATORE EXONERANDO. Writ for
discharging or removing a coroner. A writ by
which a coroner in England may be removed
from office for some cause therein assigned.
Fitzh. Nat. Brev. 163, 164; 1 Bl.Comm. 348.
DE CORPORE COMITATUS. From the body of
the county at large, as distinguished from a par•
ticular neighborhood, (de vicineto.) 3 Bl.Comm.
360. Used with reference to the composition of
a jury. State v. Kemp, 34 Minn. 61, 24 N.W. 349.
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DE CORRODIO
DE CORRODIO HABENDO. Writ for having a
corody. A writ to exact a corody from a religious
house. Reg. Orig. 264, Fitzh. Nat. Brev. 230. See
Corody.
DE CUJUS. Lat. From whom. A term used to
designate the person by, through, from, or under
whom another claims. Brant v. New Orleans, 41
La.Ann. 1098, 6 So. 793.
DE CURIA CLAUDENDA. An obsolete writ, to
require a defendant to fence in his court or land
about his house, where it was left open to the
injury of his neighbor's freehold. 1 Crabb, Real
Prop. 314; Rust v. Low, 6 Mass. 90.
DE CURSU. Of course. The usual, necessary,
and formal proceedings in an action are said to
be de cursu; as distinguished from summary pro-
ceedings, or such as are incidental and may be
taken on summons or motion. Writs de cursu are
such as are issued of course, as distinguished
from prerogative writs.
DE CUSTODE ADMITTENDO. Writ for admit-
ting a guardian. Reg. Orig. 93b, 198.
DE CUSTODE AMOVENDO. Writ for removing
a guardian. Reg. Orig. 198.
DE CUSTODIA TERRIE ET HZEREDIS, Breve.
L. Lat. Writ of ward, or writ of right of ward.
A writ which lay for a guardian in knight's serv-
ice or in socage, to recover the possession and
custody of the infant, or the wardship of the land
and heir. Reg. Orig. 161b; Fitzh. Nat. Brev. 139,
B; 3 Bl.Comm. 141.
DE DEBITO. A writ of debt. Reg. Orig. 139.
DE DEBITORE IN PARTES SECANDO. In Ro-
man law. "Of cutting a debtor in pieces." This
was the name of a law contained in the Twelve
Tables, the meaning of which has occasioned
much controversy. Some commentators have con-
cluded that it was literally the privilege of the
creditors of an insolvent debtor (all other means
failing) to cut his body into pieces and distribute
it among them. Others contend that the language
of this law must be taken figuratively, denoting a
cutting up and apportionment of the debtor's es-
tate.
The latter view has been adopted by Montesquieu, Bynk-
ershoek, Heineccius, and Taylor. (Esprit des Lois, liv. 29,
c. 2; Bynk.Obs.Jur.Rom. 1. 1, c. 1; Heinecc.Ant.Rom. lib.
3, tit. 30, § 4; Tayl.Comm. in Leg.Decemv.) The literal
meaning, on the other hand, is advocated by Aulus Gellius
and other writers of antiquity, and receives support from
an expression (semoto omni cruciatu) in the Roman code
itself. (Aul.Gel.Noctes Attica, lib. 20, c. 1; Code, 7, 7, 8.)
This is also the opinion of Gibbon, Gravina, Pothier, Hugo,
and Niebuhr. (3 Gib.Rom.Emp., Am.Ed., p. 183; Gra y . de
Jur.Nat.Gent. et XII. Tab. § 72; Poth.Introd.Pand.;
Hugo, Hist. du Droit Rom. tom. p. 233, § 149; 2 Nieb.
Hist.Rom. p. 597; 1 Kent, Comm. 523, note.) Burrill.
DE DECEPTIONE. A writ of deceit which lay
against one who acted in the name of another
whereby the latter was damnified and deceived.
Reg. Orig. 112.
DE DEONERANDA PRO RATA PORTIONIS. A
writ that lay where one was distrained for 'rent
that ought to be paid by others proportionably
with him. Fitzh. Nat. Brev. 234; Termes de la
Ley.
DE DIE IN DIEM. From day to day. Bract. fol.
205b.
DE DIVERSIS REGULIS JURIS ANTIQUI. Of
divers rules of the ancient law. A celebrated title
of the Digests, and the last in that collection. It
consists of two hundred and eleven rules or max-
ims. Dig. 50, 17.
DE BOLO MALO. Of or founded upon fraud.
Dig. 4, 3. See Actio de Dolo Malo.
DE DOMO REPARANDA. A writ which lay for
one tenant in common to compel his cotenant to
contribute towards the repair of the common
property.
DE DONIS. Concerning gifts, (or more fully, de
donis conditionalibus, concerning conditional
gifts.) The name of a celebrated English statute,
passed in the thirteenth year of Edw. I., and con-
stituting the first chapter of the statute of Westm.
2, by virtue of which estates in fee-simple con-
ditional (formerly known as "dona conditionalia")
were converted into estates in fee-tail and ren-
dered inalienable, thereby strengthening the pow-
er of the nobles. See 2 Bl.Comm. 112.
DE DOTE ASSIGNANDA. Writ for assigning
dower. A writ which lay for the widow of a ten-
ant in capite, commanding the king's escheater to
cause her dower to be assigned to her. Reg. Orig.
297; Fitzh. Nat. Brev. 263, C.
DE DOTE UNDE NIHIL HABET. A writ of dow-
er which lay for a widow where no part of her
dower had been assigned to her. It is not much
used; but a form closely resembling it is some-
times used in the United States. 4 Kent, Comm.
63; Stearns, Real Act. 302; 1 Washb. Real Prop.
230.
DE EJECTIONE CUSTODI)E. A writ which lay
for a guardian who had been forcibly ejected from
his wardship. Reg. Orig. 162.
DE EJECTIONE FIRM2E. A writ which lay at
the suit of the tenant for years against the lessor,
reversioner, remainderman, or stranger who had
himself deprived the tenant of the occupation of
the land during his term. 3 Bl.Comm. 199. By
a gradual extension of the scope of this form of
action its object was made to include not only
damages for the unlawful detainer, but also the
possession for the remainder of the term, and
eventually the possession of land generally. And,
as it turned on the right of possession, this in-
volved a determination of the right of property,
or the title, and thus arose the modern action of
ejectment.
DE ESC2ETA. Writ of escheat. A writ which
a lord had, where his tenant died without heir, to
recover the land. Reg. Orig. 164b; Fitzh. Nat.
Brev. 143, 144, E.
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DE FAIRE
DE ESCAMBIO MONET/E. A writ of exchange
of money. An ancient writ to authorize a mer-
chant to make a bill of exchange, (literas cam-
bitorias facere.) Reg. Orig. 194.
DE ESSE IN PEREGRINATIONE. Of being on a
journey. A species of essoin. 1 Reeve, Eng. Law,
119.
DE ESSENDO QUIETUM DE TOLONIO. A writ
which lay for those who were by privilege free
from the payment of toll, on their being molested
therein. Fitzh. Nat. Brev. 226; Reg. Orig. 258b.
DE ESSONIO DE MALO LECTI. A writ which
issued upon an essoin of malum lecti being cast,
to examine whether the party was in fact sick or
not. Reg. Orig. 8b.
DE ESTOVERIIS HABENDIS. Writ for having
estovers. A writ which lay for a wife divorced
a mensa et thoro, to recover her alimony or es-
tovers. 1 Bl.Comm. 441; 1 Lev. 6.
DE ESTREPAMENTO. A writ which lay to pre-
vent or stay waste by a tenant, during the pen-
dency of a suit against him to recover the lands.
Reg. Orig. 76b. Fitzh. Nat. Brev. 60.
DE EU ET TRENE. L. Fr. Of water and whip
of three cords. A term applied to a neife, that
is, a bond woman or female villein, as employed
in servile work, and subject to corporal punish-
ment. Co. Litt. 25b.
DE EVE ET DE TREVE. A law French phrase,
equivalent to the Latin de avo et de tritavo, de-
scriptive of the ancestral rights of lords in their
villeins. Literally, "from grandfather and from
great-grandfather's great-grandfather." It occurs
in the Year Books.
DE EXCOMMUNICATO CAPIENDO. A writ com-
manding the sheriff to arrest one who was ex-
communicated, and imprison him till he should be-
come reconciled to the church. 3 Bl.Comm. 102.
Smith v. Nelson, 18 Vt. 511.
DE EXCOMMUNICATO DELIBERANDO. A writ
to deliver an excommunicated person, who has
made satisfaction to the church, from prison. 3
Bl.Comm. 102.
DE EXCOMMUNICATO RECAPIENDO. Writ for
retaking an excommunicated person, where he had
been liberated from prison without making satis-
faction to the church, or giving security for that
purpose. Reg. Orig. 67.
DE EXCUSATIONIBUS. "Concerning excuses."
This is the title of book 27 of the Pandects, (in the
Corpus Juris Civilis.) It treats of the circum-
stances which excuse one from filling the office of
tutor or curator. The bulk of the extracts are
from Modestinus.
DE EXECUTIONE FACIENDA IN WITHER-
NAMIUM. Writ for making execution in wither-
nam. Reg. Orig. 82b. A species of capias in wi-
thernam.
DE EXECUTIONE JUDICII. A writ directed to a
sheriff or bailiff, commanding him to do execution
upon a judgment. Reg. Orig. 18; Fitzh. Nat.
Brev. 20.
DE EXEMPLIFICATIONE. Writ of exemplifica-
tion. A writ granted for the exemplification of an
original. Reg. Orig. 290b.
DE EXONERATIONE SECTIE. Writ for exon-
eration of suit. A writ that lay for the king's
ward to be discharged of all suit to the county
court, hundred, leet, or court-baron, during the
time of his wardship. Fitzh. Nat. Brev. 158; New
Nat. Brev. 352.
DE EXPENSIS CIVIUM ET BURGENSIUM. An
obsolete writ addressed to the sheriff to levy the
expenses of every citizen and burgess of parlia-
ment. 4 Inst. 46.
DE EXpENSIS MILITUM LEVANDIS. Writ for
levying the expenses of knights. A writ directed
to the sheriff for levying the allowance for knights
of the shire in parliament. Reg. Orig. 191b, 192.
DE FACTO. In fact, in deed, actually. This
phrase is used to characterize an officer, a govern-
ment, a past action, or a state of affairs which
must be accepted for all practical purposes, but is
illegal or illegitimate. In this sense it is the con-
trary of de jure, which means rightful, legitimate,
just, or constitutional. Thus, an officer, king, or
government de facto is one who is in actual pos-
session of the office or supreme power, but by
usurpation, or without lawful title; while an offi-
cer, king, or governor de jure is one who has just
claim and rightful title to the office or power, but
has never had plenary possession of it, or is not in
actual possession. 4 Bl.Comm. 77, 78. MacLeod v.
United States, 229 U.S. 416, 33 S.Ct. 955, 57 L.Ed.
1260; Wheatley v. Consolidated Lumber Co., 167
Cal. 441, 139 P. 1057, 1059. So a wife de facto is
one whose marriage is voidable by decree, as dis-
tinguished from a wife de jure, or lawful wife. 4
Kent, Comm. 36. But the term is also frequently
used independently of any distinction from de
jure; thus a blockade de facto is a blockade which
is actually maintained, as distinguished from a
mere paper blockade. 1 Kent, 44. As to de facto
"Corporation," "Court," "Domicile," "Govern-
ment," and "Officer," see those titles.
In old English law it means respecting or con-
cerning the principal act of a murder, which was
technically denominated factum. See Fleta, lib. 1,
c. 27, § 18.
DE FACTO CONTRACT. One which has purport-
ed to pass the property from the owner to an-
. other. Bank v. Logan, 74 N.Y. 575; Edmunds v..
Transp. Co., 135 Mass. 283.
DE FAIRE ECHELLE. In French law. A clause
commonly inserted in policies of marine insurance,
equivalent to a license to touch and trade at in-
termediate ports. American Ins. Co. v. Griswold,
14 Wend., N.Y. 491.
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DE FALSO
DE FALSO JUDICIO. Writ of false judgment.
Reg.Orig. 15; Fitzh.Nat.Brev. 18. See False Judg-
ment.
DE FALSO MONETA. Of false money. The
title of the statute 27 Edw. I. ordaining that per-
sons importing certain coins, called "pollards,"
and "crokards," should forfeit their lives and
goods, and everything they could forfeit. 2 Reeve,
Eng.Law, 228, 229.
DE FIDE ET OFFICIO JUDICIS NON RECIPI-
TUR QUIESTIO, SED DE SCIENTIA, SIVE SIT
ERROR JURIS, SIVE FACTI. Concerning the
fidelity and official conduct of a judge, no question
is Lwill, be] entertained; but [only] concerning his
knowledge, whether the error [committed] be of
law or of fact. Bac.Max. 68, reg. 17. The bona
fides and honesty of purpose of a judge cannot
be questioned, but his decision may be impugned
for error either of law or fact. Broom, Max, 85.
The law doth so much respect the certainty of
judgments, and the credit and authority of judges,
that it will not permit any error to be assigned
which impeacheth them in their trust and office,
and in willful abuse of the same; but only in ig-
norance and mistaking either of the law, or of the
case and matter of fact. Bac.Max. ubi supra.
Thus, it cannot be assigned for error that a judge
did that which he ought not to do; as that he
entered a verdict for the plaintiff, where the jury
gave it for the defendant. Fitzh.Nat.Brev. 20, 21;
Bac.Max. ubi supra; Hardr. 127, arg.
DE FIDE! L1ESIONE. Of breach of faith or
fidelity. 4 Reeve, Eng.Law, 99.
DE FINE FORCE. L. Fr. Of necessity; of pure
necessity. See Fine Force.
DE FINE NON CAPIENDO PRO PULCHRE
PLACITANDO. A writ prohibiting the taking of
fines for beau pleader. Reg.Orig. 179.
DE FINE PRO REDISSEISINA CAPIENDO. A
writ which lay for the release of one imprisoned
for a re-disseisin, on payment of a reasonable
fine. Reg.Orig. 222b.
DE FINIBUS LEVATIS. Concerning fines levied.
The title of the statute 27 Edw. I. requiring fines
thereafter to be levied, to be read openly and
solemnly in court. 2 Inst. 521.
DE FORISFACTURA MARITAGII. Writ of for-
feiture of marriage. Reg.Orig. 163, 164.
DE FRANGENTIBUS PRISONAM. Concerning
those that break prison. The title of the statute
1 Edw. II. ordaining that none from thenceforth
who broke prison should have judgment of life
or limb for breaking prison only, unless the cause
for which he was taken and imprisoned required
such a judgment if he was lawfully convicted
thereof. 2 Reeve, Eng.Law, 290; 2 Inst. 589.
DE FlURTO. Of theft. One of the kinds of crim-
inal appeal formerly in use in England. 2 Reeve,
Eng.Law, 40.
DE GESTU ET FAMA. Of behavior and reputa-
tion. An old writ which lay in cases where a
person's conduct and reputation were impeached.
DE GRATIA. Of grace or favor, by favor. De
speciali gratia, of special grace or favor.
DE GRATIA SPECIAL! CERTA SCIENTIA ET
MERO MOTU, TALIS CLAUSULA NON VALET
IN HIS IN QUIBUS PRIESUMITUR PRINCIPEM
ESSE IGNORANTEM. 1 Coke, 53. The clause
"of our special grace, certain knowledge, and
mere motion," is of no avail in those things in
which it is presumed that the prince was ignorant.
DE GROSSIS ARBORIBUS DECEIVE NON DA-
BUNTUR SED DE SYLVIA GEDUA DECIMiE
DABUNTUR. 2 Rolle, 123. Of whole trees, tithes
are not given; but of wood cut to be used, tithes
are given.
DE HZEREDE DELIBERANDO ILLI QUI HABET
CUSTODIAM TERRIE. Writ for delivering an
heir to him who has wardship of the land. A
writ directed to the sheriff, to require one that
had the body of him that was ward to another to
deliver him to the person whose ward he was by
reason of his land. Reg.Orig. 161.
DE HIEREDE RAPTO ET ABDUCTO. Writ con-
cerning an heir ravished and carried away. A
writ which anciently lay for a lord who, having
by right the wardship of his tenant under age
could not obtain his body, the same being carried
away by another person. Reg.Orig. 163; Old
Nat.Brev. 93.
DE HIERETICO COMBURENDO. (Lat. For
burning a heretic.) A writ which formerly issued
from the secular courts for the execution, by
burning, of a heretic, who had been convicted in
the ecclesiastical courts of heresy, had abjured,
and had relapsed into heresy. It is said to be
very ancient. Fitzh.Nat.Brev. 269; 4 Bl.Comm.
46. See Ha retico Comburendo.
DE HOMAGIO RESPECTUANDO. A writ for
respiting or postponing homage. Fitzh.Nat.Brev.
269, A.
DE HOMINE CAPTO IN WITHERNAM. (Lat.
For taking a man in withernam.) A writ to take
a man who had carried away a bondman or bond-
woman into another country beyond the reach
of a writ of replevin.
DE HOMINE REPLEGIANDO. (Lat. For re-
plevying a man.) A writ which lies to replevy a
man out of prison, or out of the custody of a pri-
vate person, upon giving security to the sheriff
that the man shall be forthcoming to answer any
charge against him. Fitzh.Nat.Brev. 66; 3 Bl.
Comm. 129. This writ has been superseded al-
most wholly, in modern practice, by that of ha-
beas corpus; but it is still used, in some of the
states, in an amended and altered form. See 1
Kent, Comm. 404n; 34 Me. 136.
DE IDENTITATE NOMINIS. A writ which lay
for one arrested in a personal action and corn-
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DE LIBERTATE
mitted to prison under a mistake as to his iden-
tity, the proper defendant bearing the same name.
Reg.Orig. 194.
DE IDIOTA INQUIRENDO. An old common-law
writ, long obsolete, to inquire whether a man be
an idiot or not. 2 Steph.Comm. 509.
DE HS QUI PONENDI SUNT IN ASSISIS. Of
those who are to be put on assises. The title of
a statute passed 21 Edw. I. defining the qualifica-
tions of jurors. Crabb, Eng.Law, 167, 189; 2
Reeve, Eng.Law, 184.
DE INCREMENTO. Of increase; in addition.
Costs de incremento, or costs of increase, are the
costs adjudged by the court in civil actions, in
addition to the damages and nominal costs found
by the jury. Gilb.Com.Pl. 260.
DE INFIRMITATE. Of infirmity. The principal
essoin in the time of Glanville; afterwards called
"de ma/4f)." 1 Reeve, Eng.Law, 115. See De Malo;
Essoin.
DE INGRESSU. A writ of entry. Reg.Orig. 227b,
et seq.
DE INJURIA. Of [his own] wrong. In the tech-
nical language of pleading, a replication de in-
juria is one that may be made in an action of
tort where the defendant has admitted the acts
complained of, but alleges, in his plea, certain new
matter by way of justification or excuse; by this
replication the plaintiff avers that the defendant
committed the grievances in question "of his own
wrong, and without any such cause," or motive or
excuse, as that alleged in the plea, (de injuria sua
propria absque tali causa;) or, admitting part
of the matter pleaded, "without the rest of the
cause" alleged, (absque residuo causce.) In form
it is a species of traverse, and it is frequently
used when the pleading of the defendant, in an-
swer to which it is directed, consists merely of
matter of excuse of the alleged trespass, griev-
ance, breach of contract, or other cause of action.
Its comprehensive character in putting in issue
all the material facts of the defendant's plea has
also obtained for it the title of the general replica-
tion. Holthouse.
DE INOFFICIOSO TESTAMENTO. Concerning
an inofficious or undutiful will. A title of the civil
law. Inst. 2, 18.
DE INTEGRO. Anew; a second time. As it
was before.
DE INTRUSIONE. A writ of intrusion; where
a stranger entered after the death of the ten-
ant, to the injury of the reversioner. Reg.Orig.
233b.
DE JACTURA EVITANDA. For avoiding a loss.
A phrase applied to a defendant, as de lucro cap-
tando is to a plaintiff. Jones v. Sevier, 1 Litt.,
Ky., 51, 13 Am.Dec. 218.
DE JUDAISMO, STATUTUM. The name of a
statute passed in the reign of Edward I. which
Black's Law Dictionary Revised 4th Ed.-31
enacted severe and arbitrary penalties against
the Jews.
DE JUDICATO SOLVENDO. For payment of the
amount adjudged. A term applied in the Scotch
law to bail to the action, or special bail.
DE JUDICIIS. Of judicial proceedings. The title
of the second part of the Digests or Pandects, in-
cluding the fifth, sixth, seventh, eighth, ninth,
tenth, and eleventh books. See Dig. Procem. § 3.
DE JUDICIO SISTI. For appearing in court. A
term applied in the Scotch and admiralty law,
to bail for a defendant's appearance.
DE JURE. Of right; legitimate; lawful; by
right and just title. In this sense it is the con-
trary of de facto, (which see.) It may also be
contrasted with de gratia, in which case it means
"as a matter of right," as de gratia means "by
grace or favor." Again it may be contrasted with
de cequitate; here meaning "by law," as the lat-
ter means "by equity." See Government.
DE JURE DECIMARUM, ORIGINEM DUCENS
DE JURE PATRONATUS, TUNC COGNITIO
SPECTAT AT LEGEM CIVILEM, e., COMMUN.
EM. Godb. 63. With regard to the right of tithes,
deducing its origin from the right of the patron,
then the cognizance of them belongs to the civil
law; that is, the common law.
DE JURE JUDICES, DE FACTO JURATORES,
RESPONDENT. The judges find the law, the
jury the facts. See Co.Litt. 295; Broom, Max. 99.
DE LA PLUIS BEALE, or BELLE. L. Fr. Of
the most fair. A term applied to a species of
dower, which was assigned out of the fairest of
the husband's tenements. Litt. § 48. See Dower
de la Plus.Belle.
DE LATERE. From the side; on the side; col-
laterally; of collaterals. Cod. 5, 5, 6.
DE LEGATIS ET FIDEI COMMISSIS. Of leg-
acies and trusts. The name of a title of the Pan-
dects. Dig. 30.
DE LEPROSO AMOVENDO. Writ for removing
a leper. A writ to remove a leper who thrust
himself into the company of his neighbors in any
parish, in public or private places, to their annoy-
ance. Reg.Orig. 267; Fitzh.Nat.Brev. 234, E; New
Nat.Brev. 521.
DE LIBERA FALDA. Writ of free fold. A spe-
cies of quod permittat. Reg.Orig. 155.
DE LIBERA PISCARIA. Writ of free fishery. A
species of quod permittat. Reg.Orig. 155.
DE LIBERO PASSAGIO. Writ of free passage.
A species of quod permittat. Reg.Orig. 155.
DE LIBERTATE PROBANDA. Writ for proving
liberty. A writ which lay for such as, being de-
manded for villeins or niefs, offered to prove
themselves free. Reg.Orig. 87b; Fitzh.Nat.Brev.
77, F.
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DE LIBERTATIBUS
DE LIBERTATIBUS ALLOCANDIS. A writ of
various forms, to enable a citizen to recover the
liberties to which he was entitled. Fitzh.Nat.
Brev. 229; Reg.Orig. 262.
DE LICENTIA TRANSFRETANDI. Writ of per-
mission to cross the sea. And old writ directed
to the wardens of the port of Dover, or other sea-
port in England, commanding them to permit the
persons named in the writ to cross the sea from
such port, on certain conditions. Reg.Orig. 193b.
DE LUNATICO INQUIRENDO. The name of a
writ directed to the sheriff, directing him to in-
quire by good and lawful men whether the party
charged is a lunatic or not. Den v. Clark, 10 N.J.
L. 217, 18 Am.Dec. 417; Hart v. Deamer, 6 Wend.,
N.Y., 497; In re Lindsley, 44 N.J.Eq. 564, 15 A. 1,
6 Am.St.Rep. 913.
DE MAGNA ASSISA ELIGENDA. A writ by
which the grand assise was chosen and sum-
moned. Reg.Orig. 8; Fitzh.Nat.Brev. 4.
DE MAJORI ET MINOR! NON VARIANT JURA.
Concerning greater and less laws do not vary.
2 Vern. 552.
DE MALO. Of illness. This phrase was frequent-
ly used to designate several species of essoin,
(q. v.,) such as de malo lecti, of illness in bed;
de malo veniendi, of illness (or misfortune) in
coming to the place where the court sat; de malo
vilice, of illness in the town where the court sat.
DE MANUCAPTIONE. Writ of manucaption, or
mainprise. A writ which lay for one who, being
taken and imprisoned on a charge of felony, had
offered bail, which had been refused; requiring
the sheriff to discharge him on his finding suffi-
cient mainpernors or bail. Reg.Orig. 268b; Fitzh.
Nat.Brev. 249, G.
DE MANUTENENDO. Writ of maintenance. A
writ which lay against a person for the offense
of maintenance. Reg.Orig. 189, 182b.
DE MEDIETATE LINGULE. Of the half tongue;
half of one tongue and half of another. This
phrase describes that species of jury which, at
common law, was allowed in both civil and crim-
inal cases where one of the parties was an alien,
not speaking or understanding English. It was
composed of six English denizens or natives and
six of the alien's own countrymen.
DE MEDIO. A .writ in the nature of a writ of
right, which lay where upon a subinfeudation the
mesne (or middle) lord suffered his under-tenant
or tenant paravail to be distrained upon by the
lord paramount for the rent due him from the
mesne lord. Booth, Real Act, 136.
DE MELIORIBUS DAMNIS. Of or for the better
damages. A term used in practice to denote the
election by a plaintiff against which of several
defendants (where the damages have been as-
sessed separately) he will take judgment. 1 Arch.
Pr.K.B. 219; Knickerbacker v. Colver, 8 Cow.,
N.Y., 111.
Judgment de melioribus damnis (of, or for, the
better damages). Where, in an action against sev-
eral persons for a joint tort, the jury by mistake
sever the damages by giving heavier damages
against one defendant than against the others,
the plaintiff may cure the defect by taking judg-
ment for the greater damages (de melioribus
damnis) against that defendant, and entering a
nolle prosequi (q. v.) against the others. Sweet.
DE MERCATORIBUS. "Concerning merchants."
The name of a statute passed in the eleventh
year of Edw. I. (1233,) more commonly called
the "Statute of Acton Burnel," authorizing the
recognizance by statute merchant. See 2 Reeve,
Eng.Law, 160-162; 2 Bl.Comm. 161.
DE MINIMIS NON CURAT LEX. The law does
not care for, or take notice of, very small or tri-
fling matters. The law does not concern itself
about trifles. Cro.Eliz. 353. Thus, error in cal-
culation of a fractional part of a penny will not
be regarded. Hob. 88. So, the law will not, in
general, notice the fraction of a day. Broom,
Max. 142.
DE MINIS. Writ of threats. A writ which lay
where a person was threatened with personal
violence, or the destruction of his property, to
compel the offender to keep the peace. Reg.Orig.
88b, 89; Fitzh.Nat.Brev. 79, G, 80.
DE MITTENDO TENOREM RECORD!. A writ
to send the tenor of a record, or to exemplify it
under the great seal. Reg.Orig. 220b.
DE MODERATA MISERICORDIA CAPIENDA.
Writ for taking a moderate amercement. A writ,
founded on Magna Charta, (c. 14,) which lay for
one who was excessively amerced in a court not
of record, directed to the lord of the court, or his
bailiff, commanding him to take a moderate
amercement of the party. Reg.Orig. 86b; Fitzh.
Nat.Brev. 75, 76.
DE MODO DECIMANDI. Of a modus of tithing.
A term applied in English ecclesiastical law to
a prescription to have a special manner of tith-
ing. 2 Bl.Comm. 29; 3 Steph.Comm. 130.
DE MOLENDINO DE NOVO ERECTO NON JAC-
ET PROHIBITIO. Cro.Jac. 429. A prohibition
lies not against a newly-erected mill.
DE MORTE HOMINIS NULLA EST CUNCTATIO
LONGA. Where the death of a human being is
concerned, [in a matter of life and death,] no
delay is [considered] long. Co.Litt. 134.
DE NATIVO HABENDO. A writ which lay for a
lord directed to the sheriff, commanding him to ap-
prehend a fugitive villein, and restore him, with
all his chattels, to the lord. Reg.Orig. 87; Fitzh.
Nat.Brev. 77.
DE NATURA BREVIUM. (Lat.) Concerning the
nature of writs. The title of more than one text-
book of English Medimval law. Maitland, 2 Sel.
Essays in Anglo-Amer. Leg. Hist. 549. See Regis-
ter of Writs.
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DE PLACITO
DE NOMINE PROPRIO NON EST CURANDUM
CUM IN SUBSTANTIA NON ERRETUR; QUIA
NOMINA MUTABILIA SUNT, RES AUTEM
IMMOBILES. 6 Coke, 66. As to the prop-
er name, it is not to be regarded where it errs
not in substance, because names are changeable,
but things immutable.
DE NON APPARENTIBUS, ET NON EXISTEN-
TIBUS, EADEM EST RATIO. 5 Coke, 6. As to
things not apparent, and those not existing, the
rule is the same. Bennehan v. Webb, 28 N.C. 61;
U. S. v. Wilkinson, 12 How., U.S., 253, 13 L.Ed.
974, Fed.Cas.No. 16,6%; 5 Co. 6; 6 Bingh. N.C.
453; 7 Cl. & F. 872; 5 C.B. 53; 8 Id. 286; 1 Term
404; Quarles v. Quarles, 4 Mass. 685; 8 Id. 401;
Broom, Max. 163, 166.
DE NON DECIMANDO. Of not paying tithes. A
term applied in English ecclesiastical law to a
prescription or claim to be entirely discharged of
tithes, and to pay no compensation in lieu of them.
2 Bl. Comm. 31.
DE NON PROCEDENDO AD ASSISAM. A writ
forbidding the justices from holding an assise in
a particular case. Reg.Orig. 221.
DE NON RESIDENTIA CLERICI REGIS. An
ancient writ where a parson was employed in the
royal service, etc., to excuse and discharge him
of non-residence. 2 Inst. 264.
DE NON SANE MEMORIE. L. Fr. Of unsound
memory or mind; a phrase synonymous with non
compos mentis.
DE NOVI OPERIS NUNCIATIONE. In the civil
law. A form of interdict or injunction which lies
in some cases where the defendant is about to
erect a "new work" (q. v.) in derogation or in-
jury of the plaintiff's rights.
DE NOVO. Anew; afresh; a second time. Arch-
er v. High, 193 Miss. 361, 9 So.2d 647, 648; Dun-
can v. Mack, 59 Ariz. 36, 122 P.2d 215, 217. A
venire de novo is a writ for summoning a jury
for the second trial of a case which has been sent
back from above for a new trial. Slaughter v.
Martin, 9 Ala.App. 285, 63 So. 689, 690; Parker
v. Lewis, 45 Okl. 807, 147 P. 310, 311.
DE NULLO, QUOD EST SUA NATURA INDI-
VISIBILE, ET DIVISIONEM NON PATITUR,
NULLAM PARTEM HABEBIT VIDUA, SED SAT-
ISFACIAT EI AD VALENTIAM. Co. Litt. 32. A
widow shall have no part of that which in its own
nature is indivisible, and is not susceptible of divi-
sion, but let the heir satisfy her with an equiva-
lent.
DE NULLO TENEMENTO, QUOD TENETUR AD
TERMINUM, FIT HOMAGII, FIT TAMEN INDE
FIDELITATIS SACRAMENTUM. In no tenement
which is held for a term of years is there an avail
of homage; but there is the oath of fealty. Co.
Litt. 67b.
DE ODIO ET ATIA. A writ anciently called
"breve de bono et malo," addressed to the sheriff
to inquire whether a man committed to prison
upon suspicion of murder were committed on just
cause of suspicion, or only upon malice and ill
will (propter odium et atiam); and if, upon the
inquisition, due cause of suspicion did not appear,
then there issued another writ for the sheriff to
admit him to bail. 3 Bl.Comm. 128; Reg.Orig.
133.
DE OFFICE. L. Fr. Of office; in virtue of office;
officially; in the discharge of ordinary duty.
DE ONERANDO PRO RATA PORTIONE. Writ
for charging according to a rateable proportion.
A writ which lay for a joint tenant:or tenant in
common, who was distrained for more rent than
his proportion of the land came to. Reg.Orig.
182; Fitzh.Nat.Brev. 234, H.
DE PACE ET LEGALITATE TENENDA. For
keeping the peace, and for good behavior.
DE PACE ET PLAGIS. Of peace, (breach of
peace,) and wounds. One of the kinds of criminal
appeal formerly in use in England, and which lay
in cases of assault, wounding, and breach of the
peace. Bract. fol. 144; 2 Reeve, Eng.Law, 33.
DE PACE ET ROBERIA. Of peace [breach of
peace] and robbery. One of the kinds of criminal
appeal formerly in use in England, and which lay
in cases of robbery and breach of the peace.
Bract. fol. 146; 2 Reeve, Eng.Law, 37.
DE PALABRA. Span. By word; by parol.
White, New Recop. b. 2, tit. 19, c. 3, § 2.
DE PARCO FRACTO. A writ or action for dam-
ages caused by a pound-breach (q. v.). It has
long been obsolete. Co.Litt. 47b; 3 Bl.Comm. 146.
DE PARTITIONE FACIENDA. A writ which lay
to make partition of lands or tenements held by
several as coparceners, tenants in common, etc.
Reg.Orig. 76; Fitzh.Nat.Brev. 61, R; Old Nat.Brev.
142.
DE PERAMBULATIONE FACIENDA. A writ
which lay where there was a dispute as to the
boundaries of two adjacent lordships or towns, di-
rected to the sheriff, commanding him to take
with him twelve discreet and lawful knights of
his county and make the perambulation and set
the bounds and limits in certainty. Fitzh.Nat.
Brev. 309, D.
DE PIGNORE SURREPTO FURTI, ACTIO. In
the civil law. An action to recover a pledge stolen.
Inst. 4, 1, 14.
DE PIPA VINI CARIANDA. A writ of trespass
for carrying a pipe of wine so carelessly that it
was stove, and the contents lost. Reg.Orig. 110.
Alluded to by Sir William Jones in his remarks on
the case of Coggs v. Bernard, 2 Ld.Raym. 909.
Jones, Bailm. 59.
DE PLACITO. Of a plea; of or in an action.
Formal words used in declarations and other pro-
ceedings, as descriptive of the particular action
brought.
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DE PLAGIS
DE PLAGIS ET MAHEMIO. Of wounds and
mayhem. The name of a criminal appeal for-
merly in use in England, in cases of wounding
and maiming. Bract. fol. 144b; 2 Reeve, Eng.
Law, 34. See Appeal.
DE PLANO. Lat. On the ground; on a level.
A term of the Roman law descriptive of the meth-
od of hearing causes, when the prtor stood on
the ground with the suitors, instead of the more
formal method when he occupied a bench or tri-
bunal; hence informal, or summary.
DE PLEGIIS ACQUIETANDIS. Writ for acquit-
ting or releasing pledges. A writ that lay for a
surety, against him for whom he had become sure-
ty for the payment of a certain sum of money at
a certain day, where the latter had not paid the
money at the appointed day, and the surety was
compelled to pay it. Reg.Orig. 158; Fitzh.Nat.
Brev. 137, C; 3 Reeve, Eng.Law, 65.
DE PONENDO SIGILLUM AD EXCEPTIONEM.
Writ for putting a seal to an exception. A writ
by which justices were formerly commanded to
put their seals to exceptions taken by a party in
a suit. Reg.Orig. 182.
DE POST DISSEISINA. Writ of post disseisin.
A writ which lay for him who, having recovered
lands or tenements by prcecipe quod reddat, on
default, or reddition, was again disseised by the
former disseisor. Reg.Orig. 208; Fitzh.Nat.Brev.
190.
DE PRAROGATIVA REGIS. The statute 17
Edw. I., St. 1, c. 9, defining the prerogatives of the
crown'on certain subjects, but especially directing
that the king shall have ward of the lands of idiots,
taking the profits without waste, and finding them
necessaries. 2 Steph.Comm. 529.
DE PR)ESENTI. Of the present; in the present
tense. See Per Verba de Praesenti.
DE PROCEDENDO AD JUDICIUM. A writ pro-
ceeding out of chancery and ordering the judges
of any court to proceed to judgment. 3 Bla.Com.
109.
DE PROPRIETATE PROBANDA. Writ for prov-
ing property. A writ directed to the sheriff, to
inquire of the property or goods distrained, where
the defendant in an action of replevin claims the
property. 3 Bl.Comm. 148; Reg.Orig. 85b.
DE QUARANTINA HABENDA. At common law,
a writ which a widow entitled to quarantine might
sue out in case the heir or other persons ejected
her. It seems to have been a summary process,
and required the sheriff, if no just cause were
shown against it, speedily to put her into posses-
sion. Aiken v. Aiken, 12 Or. 203, 6 P. 682.
DE QUIBUS SUR DISSEISIN. An ancient writ of
entry.
DE QUO, and DE QUIBUS. Of which. Formal
words in the simple writ of entry, from which it
was called a writ of entry "in the quo," or "in the
quibus." 3 Reeve, Eng.Law, 33.
DE QUOTA LITIS. In the civil law. A contract
by which one who has a claim difficult to recover
agrees with another to give a part, for the pur-
pose of obtaining his services to recover the rest.
1 Duval, note 201.
DE RAPTU VIRGINUM. Of the ravishment of
maids. The name of an appeal formerly in use
in England in cases of rape. Bract. fol. 147; 2
Reeve, Eng.Law, 38.
DE RATIONABILI PARTE BONORUM. A writ
which lay for the widow (and children) of a de-
ceased person against his executors, to recover a
third part of the deceased's personalty, after pay-
ment of his debts, or to recover their reasonable
part or share of his goods. 2 Bl.Comm. 492;
Fitzh.Nat.Brev. 122, L; Hopkins v. Wright, 17
Tex. 36.
DE RATIONABILIBUS DIVISIS. Writ for fixing
reasonable boundaries. A writ which lay to settle
the boundaries between the lands of persons in dif-
ferent towns, where one complained of encroach-
ment. Reg.Orig. 157b; Fitzh.Nat.Brev. 128, M;
Rosc.Real Act. 31; 3 Reeve, Eng.Law, 48.
DE REBUS. Of things. The title of the third
part of the Digests or Pandects, comprising books
12-19, inclusive.
DE REBUS DUBIIS. Of doubtful things or mat-
ters. Dig. 34, 5.
DE RECORDO ET PROCESSU MITTENDIS.
Writ to send the record and process of a cause to
a superior court; a species of writ of error. Reg.
Orig. 209.
DE RECTO. Writ of right. Reg.Orig. 1, 2; Bract.
fol. 327b. See Writ of Right.
DE RECTO DE ADVOCATIONE. Writ of right
of advowson. Reg.Orig. 29b. A writ which lay
for one who had an estate in an advowson to him
and his heirs in fee-simple, if he were disturbed
to present. Fitzh.Nat.Brev. 30, B. Abolished by
St. 3 & 4 Wm. IV. c. 27.
DE RECTO DE RATIONABILI PARTE. Writ of
right, of reasonable part. A writ which lay be-
tween privies in blood, as between brothers in gav-
elkind, or between sisters or other coparceners for
lands in fee-simple, where one was deprived of his
o her share by another. Reg.Orig. 3b; Fitzh.
Nat.Brev. 9, B. Abolished by St. 3 & 4 Wm. IV.
c. 27.
DE RECTO PATENS. Writ of right patent.
Reg. Orig. 1.
DE REDISSEISINA. Writ of redisseisin. A writ
which lay where a man recovered by assise of
novel disseisin land, rent, or common, and the
like, and was put in possession thereof by verdict,
and afterward was disseised of the same land,
rent, or common, by him by whom he was dis-
seised before. Reg. Orig. 206b; Fitzh. Nat. Brev.
188, B.
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DE TRANSGRESSIONE
DE REPARATIONE FACIENDA. A writ by
which one tenant in common seeks to compel an-
other to aid in repairing the property held in com-
mon. 8 Barn. & C. 269.
DE RESCUSSU. Writ of rescue or rescous. A.
writ which lay where cattle distrained, or per-
sons arrested, were rescued from those taking
them. Reg. Orig. 117, 118; Fitzh. Nat. Brev. 101,
C, G.
DE RETORNO HABENDO. For having a return;
to have a return. A term applied to the judgment
for the defendant in an action of replevin, award-
ing him a return of the goods replevied; and to
the writ or execution issued thereon. 2 Tidd, Pr.
993, 1038; 3 Bl. Comm. 149. Applied also to the
sureties given by the plaintiff on commencing the
action. Id. 147.
DE RIEN CULPABLE. L. Fr. Guilty of noth-
ing; not guilty.
DE SA VIE. L. Fr. Of his or her life; of his
own life; as distinguished from pur autre vie,
for another's life. Litt. §§ 35, 36.
DE SALVA GARDIA. A writ of safeguard allow-
ed to strangers seeking their rights in English
courts, and apprehending violence or injury to
their persons or property. Reg. Orig. 26.
DE SALVO CONDUCTU. A writ of safe conduct.
Reg. Orig. 25b, 26.
DE SCACCARIO. Of or concerning the exche-
quer. The title of a statute passed in the fifty-
first year of Henry III. 2 Reeve, Eng. Law, 61.
DE SCUTAGIO HABENDO. Writ for having (or
to have) escuage or scutage. A writ which an-
ciently lay against tenants by knight-service, to
compel them to serve in the king's wars or send
substitutes or to pay escuage; that is a sum of
money. Fitzh. Nat. Brev. 83, C. The same writ
lay for one who had already served in the king's
army, or paid a fine instead, against those who
held of him by knight-service, to recover his es-
cuage or scutage. Reg. Orig. 88; Fitzh. Nat.
Brev. 83, D, F.
DE SE BENE GERENDO. For behaving himself
well; for his good behavior. Yelv. 90, 154.
DE SECTA AD MOLENDINUM. Of suit to a
mill. A writ which lay to compel one to continue
his custom (of grinding) at a mill. 3 Bl. Comm.
235; Fitzh. Nat. Brev. 122, M.
DE SIMILIBUS AD SIMILIA. EADEM RATIONE
PROCEDENUM EST. From like things to like
things we are to proceed by the same rule or rea-
son, [i. e., we are allowed to argue from the anal-
ogy of cases.] Branch, Princ.
DE SIMILIBUS IDEM EST JUDICANDUM. Of
[respecting] like things, [in like cases, the judg-
ment is to be the same. 7 Coke, 18.
DE SON TORT. L. Fr. Of his own wrong. A
stranger who takes upon him to act as an execu-
tor without any just authority is called an "execu-
tor of his own wrong," (de son tort.) 2 Bl. Comm.
507; 2 Steph. Comm. 244.
An executor de son tort is an executor of his own wrong.
A person who assumes to act as executor of an estate.
out any lawful warrant or authority, but who, by his
intermeddling, makes himself liable as an executor to a
certain extent. If a stranger takes upon him to act as
executor without any just authority, (as by intermeddling
with the goods of the deceased, and many other transac-
tions,) he is called in law an "executor of his own wrong,"
de son tort. 2 BI.Comm. 507. Allen v. Hurst, 120 Ga. 763,
48 S.E. 341; In re Pedroli's Estate, 47 Nev. 313, 21 P. 241,
242, 31 A.L.R. 841; Walker v. Portland Savings Bank, 113
Me. 353, 93 A. 1025, L.R.A.1915E, 840; Lowery v. Lowery,
225 Ala. 376, 143 So. 556, 557.
DE SON TORT DEMESNE. Of his own wrong.
The law French equivalent of the Latin phrase
do injuria (q. v.).
DE STATUTO MERCATORIO. The writ of stat-
ute merchant. Reg. Orig. 146b.
DE STATUTO STAPULIE. The writ of statute
staple. Reg. Orig. 151.
DE SUPERONERATIONE PASTURE. Writ of
surcharge of pasture. A judicial writ which lay
for him who was impleaded in the county court,
for surcharging a common with his cattle, in a
case where he was formerly impleaded for it in
the same court, and the cause was removed into
one of the courts at Westminster. Reg. Jud. 36b.
DE TABULIS EXHIBENDIS. Of showing the
tablets of a will. Dig. 43, 5.
DE TALLAGIO NON CONCEDENDO. Of not
allowing talliage. The name given to the stat-
utes 25 and 34 Edw. I., restricting the power of
the king to grant talliage. 2 Inst. 532; 2 Reeve,
Eng. Law, 104.
DE TEMPORE CUJUS CONTRARIUM MEMOR-
IA HOMINUM NON EXISTIT. From time
whereof the memory of man does not exist to the
contrary. Litt. § 170.
DE TEMPORE IN TEMPUS ET AD OMNIA
TEMPORA. From time to time, and at all times.
Townsh. Pl. 17.
DE TEMPS DONT MEMORIE NE COURT, L.
Fr. From time whereof memory runneth not;
time out of memory of man. Litt. §§ 143, 145, 170.
DE TESTAMENTIS. Of testaments. The title of
the fifth part of the Digests or Pandects; com-
prising the twenty-eighth to the thirty-sixth books,
both inclusive.
DE THEOLONIO. A writ which lay for a person
who was prevented from taking toll. Reg. Orig.
103.
DE TRANSGRESSIONE. A writ of trespass.
Reg. Orig. 92.
DE TRANSGRESSIONE, AD AUDIENDUM ET
TERMINANDUM. A writ or commission for the
hearing and determining any outrage or misde-
meanor.
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DE UNA
DE UNA PARTE. A deed de una parte is one
where only one party grants, gives, or binds him-
self to do a thing to another. It differs from a
deed inter partes, (q. v.) 2 Bouv. Inst. no. 2001.
DE UXORE RAPTA ET ABDUCTA. A writ
which lay where a man's wife had been ravished
and carried away. A species of writ of trespass.
Reg. Orig. 97; Fitzh. Nat. Brev. 89, 0; 3 BL
Comm. 139.
DE VASTO. Writ of waste. A writ which might
be brought by him who had the immediate estate
of inheritance in reversion or remainder, against
the tenant for life, in dower, by curtesy, or for
years, where the latter had committed waste in
lands; calling upon the tenant to appear and
show cause why he committed waste and destruc-
tion in the place named, to the disinherison (ad
exhceredationem) of the plaintiff. Fitzh. Nat.
Brev. 55, C; 3 Bl. Comm. 227, 228. Abolished by
St. 3 & 4 Wm. IV, c. 27. 3 Steph. Comm. 506.
DE VENTRE INSPICIENDO. A writ to inspect
the body, where a woman feigns to be pregnant,
to see whether she is with child. It lies for the
heir presumptive to examine a widow suspected
to be feigning pregnancy in order to enable a
supposititious heir to obtain the estate. 1 Bl.
Comm. 456; 2 Steph. Comm. 287. It lay also
where a woman sentenced to death pleaded preg-
nancy. 4 Bl. Comm. 395. This writ has been rec-
ognized in America. 2 Chand. Crim. Tr. 381.
DE VERBO IN VERBUM. Word for word.
Bract. fol. 138b. Literally, from word to word.
DE VERBORUM SIGNIFICATIONE. Of the sig-
nification of words. An important title of the
Digests or Pandects, (Dig. 50, 16,) consisting en-
tirely of definitions of words and phrases used in
the Roman law.
DE VI LAICA AMOVENDA. Writ of (or for)
removing lay force. A writ which lay where two
parsons contended for a church, and one of them
entered into it with a great number of laymen,
and held out the other vi et armis; then he that
was holden out had this writ directed to the sher-
iff, that he remove the force. Reg. Orig. 59;
Fitzh. Nat. Brev. 54, D.
DE VICINETQ. From the neighborhood, or vic-
inage. 3 Bl.Comm. 360. A term applied to a jury.
DE WARRANTIA CHARTIE. Writ of warranty
of charter. A writ which lay for him who was
enfeoffed, with clause of warranty, [in the char-
ter of feoffment,1 and was afterwards impleaded
in an assise or other action, in which he could not
vouch or call to warranty; in which case he might
have this writ against the feoffor, or his heir, to
compel him to warrant the land unto him. Reg.
Orig. 157b; Fitzh. Nat. Brev. 134, D. Abolished
by St. 3 & 4 Wm. IV, c. 27.
DE WARRANTIA DIET. A writ that lay where
a man had a day in any action to appear in prop-
er person, and the king at that day, or before, em-
ployed him in some service, so that he could not
appear at the day in court. It was directed to
the justices, that they should not record him to be
in default for his not appearing. Fitzh. Nat. Brev.
17, A; Termes de la Ley.
DEACON. In ecclesiastical law. A minister or
servant in the church, whose office is to assist the
priest in divine service and the distribution of
the sacrament. It is the lowest degree of holy
orders in the Church of England. 2 Steph. Comm.
660.
DEAD BODY. A corpse. The body of a human
being, deprived of life, but not yet entirely disin-
tegrated. Meads v. Dougherty County, 98 Ga.
697, 25 S.E. 915.
DEAD-BORN. A dead-born child is to be consid-
ered as if it had never been conceived or born;
in other words, it is presumed it never had life,
it being a maxim of the common law that mor-
tuus exitus non est exitus (a dead birth is no
birth). Co. Litt. 29 b. See Marsellis v. Thalhim-
er, 2 Paige, Ch., N.Y., 35, 21 Am.Dec. 66; 4 Ves.
334. This is also the doctrine of the civil law.
Dig. 50. 16. 129; La.Civ.Code, art. 28; Domat, liv.
prel. t. 2, s. 1, nn. 4, 6.
DEAD FREIGHT. The amount paid by a char-
terer for that part of the vessel's capacity which
he does not occupy although he has contracted
for it. Gray v. Carr, L. R. 6 Q. B. 528; Phillips v.
Rodie, 15 East 547.
When the charterer of a vessel has shipped part of the
goods on board, and is not ready to ship the remainder,
the master, unless restrained by his special contract, may
take other goods on board, and the amount which is not
supplied, required to complete the cargo, is considered
dead freight. The dead freight is to be calculated accord-
ing to the actual capacity of the vessel. 3 Chit.Com.Law
399; 2 Stark. 450; McCull.Com.Dic.
"Dead freight" is the compensation payable to the ship-
owner when the charterer has failed to ship a full cargo,
and "freight" is recompense the shipowner is to receive
for carrying the cargo into its port of discharge. Kish v.
Taylor (1912) A.C. 604, 613, citing Carver's Carriage By
Sea, par. 666.
DEAD LETTER. A term sometimes applied to
an act that has become obsolete by long disuse.
DEAD LETTERS. Letters which the postal de-
partment has not been able to deliver to the per-
sons for whom they were intended. They are sent
to the "dead-letter office," where they are opened,
and returned to the writer if his address can be
' ascertained.
DEAD MAN'S PART. In English law, that por-
tion of the effects of a deceased person which, by
the custom of London and York, is allowed to the
administrator; being, where the deceased leaves
a widow and children, one-third; where he leaves
only a widow or only children, one-half; and,
where he leaves neither, the whole. This portion
the administrator was wont to apply to his own
use, till the statute 1 Jac. II, c. 17, declared that
the same should be subject to the statute of dis-
tributions. 2 Bl. Comm. 518; 2 Steph. Comm. 254;
4 Reeve, Eng.Law, 83. A similar portion in Scotch
law is called "dead's part," (q. v.)
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DEALER
DEAD-PLEDGE. A mortgage, mortuum vadium. •
DEAD RENT, In English law. A rent payable
on a mining lease in addition to a royalty, so call-
ed because it is payable although the mine may
not be worked.
DEAD STORAGE. The storage, especially of au-
tomobiles in public garages, where automobiles
not in use are to remain uninterruptedly for a
time, sometimes for the season. Hogan v.
O'Brien, 123 Misc. 865, 206 N.Y.S. 831.
DEAD USE. A future use.
DEAD WIRE. One which never carries electric-
ity, or which, at some particular time, is not
charged with an electric current. City of Shaw-
nee v. Sears, 39 Okl. 789, 137 P. 107, 110, 50 L.R.
A.,N.S., 885.
DEAD'S PART. In Scotch law. The part re-
maining over beyond the shares secured to the
widow and children by law. Of this the testator
had the unqualified disposal. Bell; Stair, Inst.
lib. iii. tit. 4, § 24; Paterson, Comp. §§ 674, 848,
902.
DEADHEAD. A term applied to persons other
than the officers, agents, or employees of a rail-
road company who are permitted by the company
to travel on the road without paying any fare
therefor. Gardner v. Hall, 61 N.C. 21.
DEADLY FEUD. In old European law. A pro-
fession of irreconcilable hatred till a person is re-
venged even by the death of his enemy.
DEADLY WEAPON. Such weapons or instru-
ments as are made and designed for offensive or
defensive purposes, or for the destruction of life
or the infliction of injury. Commonwealth v.
Branham, 8 Bush (Ky.) 387. One likely to pro-
duce death or great bodily harm. People v. Fu-
qua, 58 Cal. 245; State v. Hedrick, 99 W.Va. 529,
130 S.E. 295, 298.
One which, from the manner used, is calculated
or likely to produce death or serious bodily injury.
Harris v. State, 72 Tex.Cr.R. 491, 162 S.W. 1150,
1151; Burgess v. Commonwealth, 176 Ky. 326, 195
S.W. 445.
Any weapon darikerous to life, or with which
death may be easily and readily produced. Par-
man v. Lemmon, 119 Kan. 323, 244 P. 227, 229, 44
A.L.R. 1500; People v. Dwyer, 324 Ill. 363, 155
N.E. 316, 317.
The term may denote any instrument so used as to be
likely to produce death or great bodily harm, and hence
may include an automobile, especially within the meaning
of statutes pertaining to assault. Williamson v. State, 92
Fla. 980, 111 So. 124, 125, 53 A.L.R. 250. But an automo-
bile, when used innocently or negligently so as to be like-
ly to produce death or bodily injury, or to actually pro-
duce them without criminal liability, has been held not to
be a deadly weapon within the meaning of the criminal
law. People v. Cash, 326 Ill. 104, 157 N.E. 76, 79; State
v. Clark, 196 Iowa, 1134, 196 N.W. 82, 84.
DEADLY WEAPON PER SE. A weapon which of
itself is deadly or one which would ordinarily re-
sult in death by its use. Baylor v. State, 151 Tex.
Cr.R. 365, 208 S.W.2d 558, 561.
DEADMAN. As applied to a lifting appliance, a
piece of timber placed across an opening in the
ground to which a snatch hook is attached. The
Teddy, D.C.N.Y., 226 F. 498, 500.
DEAF AND DUMB. A man that is born deaf,
dumb, and blind is looked upon by the law as in
the same state with an idiot, he being supposed
incapable of any understanding. 1 Bl. Comm.
304. See, however, Alexier v. Matzke, 151 Mich.
36, 115 N.W. 251, 123 Am.St.Rep. 255. Neverthe-
less, a deaf and dumb person may be tried for
felony if the prisoner can be made to understand
by means of signs. 1 Bish. Cr. L. § 395; Com-
monwealth v. Hill, 14 Mass. 207; State v. Harris,
53 N.C. 136, 78 Am.Dec. 272; 1 Houst.Cr.Rep. 291;
Felts v. Murphy, 201 U.S. 123, 26 S.Ct. 366, 50 L.
Ed. 689.
DEAFFOREST. See Disafforest.
DEAL, n. An arrangement to attain a desired
result by a combination of interested parties;
Gaut v. Dunlap, Tex.Civ.App., 188 S.W. 1020, 1021;
Ball v. Davenport, 170 Iowa 33, 152 N.W. 69, 71;
the prime object being usually the purchase, sale,
or exchange of property for a profit; Chambers
v. Johnston, 180 Ky. 73, 201 S.W. 488, 493. Also,
an act of buying and selling; a bargain. Oregon
Home Builders v: Montgomery Inv. Co., 94 Or.
349, 184 P. 487, 493.
A "deal" between two parties includes any transaction of
any kind between them, and when applied to a transaction
concerning a house or block, the term does not necessarily
imply an agreement to sell or convey, for the agreement
might be to rent or lease the property. Osborne v. Moore,
112 Tex. 361, 247 S.W. 498, 499.
DEAL, v. To traffic; to transact business; to
trade. See Borg v. International Silver Co., C.C.
A.N.Y., 11 F.2d 147, 150. Also, to act between two
persons, to intervene, or to have to do with. State
v. Morro, 313 Mo. 114, 280 S.W. 697, 699.
To "deal" in a commodity, however, such as automobiles,
within the meaning of a privilege tax statute, means some-
thing more than the making of an occasional sale in a mu-
nicipality where the seller has no place of business, and no
stock ,of automobiles on hand. City of Pascagoula v.
Carter, 136 Miss. 750, 101 So. 687, 688.
As to dealing in futures, see Futures.
DEALER. In the popular sense, one who buys to
one who buys to keep, or makes to sell.
Commonwealth v. Lutz, 284 Pa. 184, 130 A. 410,
411; Moore v. State, 148 Ga. 457, 97 S.E. 76, 77;
In re I. Rheinstrom & Sons Co., D.C.Ky., 207 F.
119, 136.
The term includes one who carries on the business of
selling goods, wares, and merchandise, manufactured by
him at a store or warehouse apart from his own shop, or
manufactory. Atlantic Refining Co. v. Van Valkenburg,
265 Pa. 456, 109 A. 208, 209.
A "dealer," as in narcotics, is one who sells promiscuous-
ly,-one who is ready and willing to sell to anyone apply-
ing to purchase, if unaware that they are officers or under-
cover men. Taylor v. U. S., C.C.A.Mo., 19 F.2d 813, 815.
Under Blue Sky Laws, a "dealer" Is one making succes-
sive sales as a business. People v. glum, 213 Mich. 651, 182
N.W. 136, 138. 15 A.L.R. 253 ; State v. Barrett, 121 Or. 57,
254 P. 198, 200. Compare, also, Commonwealth v. Silver-
man, 220 Mass. 552, 108 N.E. 358, Ann.Cas.1917A, 948.
For various definitions under particular statutes, see
State v. Perkins, 88 Vt. 121, 92 A. 1, 2 (dealer in evergreen
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DEALER
trees); Texas Co. v. State, 31 Ariz. 485, 254 P. 1060, 1063,
53 A.L.R. 258 (dealer in gasoline); Pierce v. Hutchinson,
241 Mass. 557, 136 N.E. 261, 263 (dealer in motor vehicles).
Makers of an accommodation note are deemed dealers
with whoever discounts it. Vernon v. Manhattan Co., 17
Wend., N.Y., 524.
Dealers' talk. That picturesque and laudatory
style affected by nearly every trader in setting
forth the attractive qualities of the goods he offers
for sale. Prince v. Brackett, Shaw & Lunt Co.,
125 Me, 31, 130 A. 509, 511. The puffing of goods
to induce the sale thereof; not regarded in law as
fraudulent unless accompanied by some artifice to
deceive the purchaser and throw him off his guard
or some concealment of intrinsic defects not eas-
ily discoverable. Kimball v. Bangs, 144 Mass,
321, 11 N.E. 113; Williams v. Fouche, 164 Ga, 311,
138 S.E. 580, 581.
Real estate dealer. One who, on his own ac-
count and as a business independent of that of
another real estate agent, engages for a consid-
eration to aid others, whether the owners of the
property or their agents, in selling real estate
which is offered for sale. Horsley v. Woodley,
12 Ga.App. 456, 78 S.E. 260, 261.
DEALINGS. Transactions in the course of trade
or business;-held to include payments to a bank-
rupt. Moody & M. 137; 3 Car. & P. 85.
DEAN. In English ecclesiastical law. An eccle-
siastical dignitary who presides over the chapter
of a cathedral, and is next in rank to the bishop.
So called from having been originally appointed
to superintend ten canons or prebendaries. 1 Bl.
Comm, 382; Co, Litt, 95; Spelman.
There are several kinds of deans, namely: Deans of
chapters; deans of peculiars; rural deans; deans in the
colleges; honorary deans; deans of provinces.
DEAN AND CHAPTER. In ecclesiastical law.
The council of a bishop, to assist him with their
advice in the religious and also in the temporal
affairs of the see. 3 Co, 75; 1 Bla. Comm. 382;
Co. Litt 103, 300; Termes de la Ley; 2 Burn, Eccl,
Law 120.
DEAN OF THE ARCHES. The presiding judge
of the Court of Arches. He is also an assistant
judge in the court of admiralty. 1 Kent, Comm,
371; 3 Steph. Comm. 727.
DEATH. The cessation of life; the ceasing to
exist; defined by physicians as a total stoppage
of the circulation of the blood, and a cessation of
the animal and vital functions consequent there-
on, such as respiration, pulsation, etc.
This is "natural death," in contradistinction to "civil
death," and, also, to "violent death," See those titles,
infra.
Civil death. The state of a person who, though
possessing natural life, has lost all his civil rights,
and as to them, is considered as dead. Quick v.
Western Ry. of Alabama, 207 Ala. 376, 92 So,
608, 609. At common law, the extinction of civil
rights and relations, so that the property of a
person declared civilly dead passes to his heirs
as if dead in fact. Holmes v. King, 216 Ala. 412,
113 So. 274, 276.
The "civil death" spoken of In the books, is of two
kinds : (1) Where there is a total extinction of the civil
rights and relations of the party, so that he can neither
take nor hold property, and his heirs succeed to his estate
in the same manner as if he were really dead, or the estate
is forfeited to the crown. (2) Where there is an incapacity
to hold property, or to sue in the king's courts, attended
with forfeiture of the estate to the crown. Of the first
kind, are the cases of monks professed, and abjuration of
the realm; all the other cases are of the second kind.
Strictly speaking, there but two cases of civil death; those
of a monk professed, and an abjuration of the realm. In
re Erskine, C.C.A.Ind., 1 F.2d 149, 152. See, generally,
Chit.Crim.Law 723; Co.Litt. §§ 133, 199, note; Littleton
§ 200; 1 Bl.Comm. 132; Avery v. Everett, 110 N.Y. 317, 18
N.E. 148, 1 L.R.A. 264; In re Donnelly's Estate, 125 Cal.
417, 58 P. 61, 73 Am.St.Rep. 62.
In New York a person sentenced to imprisonment is
thereafter deemed civilly dead under Penal Law § 511.
See Platner v. Sherwood, 6 Johns.Ch., N.Y., 118; Troup v.
Wood, 4 Johns.Ch., N.Y., 228, 260,
Death-bed. In Scotch law. A state of sickness
which ends in death. Ersk. Inst. 3, 8, 95.
Death-bed deed. In Scotch law. A deed made
by a person while laboring under a distemper of
which he afterwards died. Ersk. Inst. 3, 8, 96. A
deed is understood to be in death-bed, if, before
signing and delivery thereof, the grantor was sick,
and never convalesced thereafter. 1 Forbes, Inst.
pt. 3, b. 2, c. 4, tit. 1, § 1. But it is not necessary
that he should be actually confined to his bed at
the time of making the deed. Bell.
Death duty. A charge or toll which the state
makes upon the right to transmit or to receive
property on the death of the owner. In re Heck's
Estate, 120 Or, 80, 250 P. 735, 736. The usual name
in England for an inheritance tax.
Death warrant. A warrant from the proper
executive authority appointing the time and place
for the execution of the sentence of death upon a
convict judicially condemned to suffer that penal-
ty.
Death watch. A special guard set to watch a
prisoner condemned to death, for some days be-
fore the time for the execution, the special pur-
pose being to prevent any escape or any attempt
to anticipate the sentence.
Natural death. A death which occurs by the
unassisted operation of natural causes, as distin-
guished not only from "civil death," but also from
"violent death" (q. v.)
Presumptive death. That which is presumed
from proof of a long continued absence unheard
from and unexplained. The general rule, as now
understood, is that the presumption of the dura-
tion of life ceases at the expiration of seven years
from the time when the person was last known to
be living; and after the lapse of that period there
is a presumption of death. Smith v. Knowlton,
11 N.H. 197; Chamb. Best Ev. 304, note, collecting
the cases; 4 U.C.Q.B. 510; 1 Greenl. Ev. § 41; 5
B. & Ad. 86; Maley v. Pennsylvania R. Co., 258
Pa. 73, 101 A. 911, L.R.A.1918A, 563. In most of
the states the subject is regulated by statute.
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DEBET
The better opinion is that there is no presumption as to
the time of death. Davie v. Briggs, .97 U.S. 628, 24 L.Ed.
1086; Chamb.Best Ev. 305; 2 Brett, Corm 941; 2 M. & W.
894. But it has been held that death is presumed to take
place at the end of the seven years' absence; Brotherhood
of Locomotive Firemen and Engineers v. Nash, 144 Md.
623, 125 A. 441; Apitz v. Supreme Lodge Knights and
Ladies of Honor, 274 Ill. 196, 113 N.E. 63, L.R.A.1917A,
183; or at a time of peril, Conner v. New York Life Ins.
Co., 166 N.Y.S. 985, 179 App.Div. 596.
Violent death. One caused or accelerated by
the interference of human agency ;—distinguished
from "natural death."
DEATH'S PART, See Dead's Part; Dead Man's
Part.
DEATHSMAN. The executioner; hangman; he
that executes the extreme penalty of the law.
DEATH TRAP. A structure or situation involving
imminent risk of death or a place apparently safe
but actually very dangerous to life. Benson v.
Missouri, K. & T. R. Co., Tex.Civ.App., 200 S.W.
2d 233, 240.
DEBASING. This word, in a statute making it
slander to charge another with being guilty of
some "debasing act which may exclude him from
society," has reference to those repulsive acts
which would cause him to be shunned or avoided,
in the same way as would a contagious disease.
Morris v. Evans, 22 Ga.App. 11, 95 S.E. 385, 386.
DEBAUCH. To corrupt one's manners; to make
lewd; to mar or spoil; to entice; and, when used
of a woman, to seduce, or corrupt with lewdness.
Litton v. Woliver, 126 Va. 32, 100 S.E. 827, 828;
State v. Howard, 264 Mo. 386, 175 S.W. 58, 59.
Originally, the term had a limited signification,
meaning to entice or draw one away from his
work, employment, or duty; and from this sense
its application has enlarged to include the corrup-
tion of manners and violation of the person. In
RS modern legal sense, the word carries with it
the idea of "carnal knowledge," aggravated by as-
sault, violent seduction, ravishment. Koenig v.
Nott, 2 Hilt., N.Y., 323. And see State v. Curran,
51 Iowa, 112, 49 N.W. 1006. See, also, Debauchery.
DEBAUCHERY. In general, excessive indulgence
in sensual pleasures; in a narrower sense, sexual
immorality or excesses, or the unlawful indul-
gence of lust. Suslak v. United States, C.C.A.
Mont., 213 F. 913, 917; Gillette v. United States,
C.C.A.N.D., 236 F. 215, 217.
In the White Slave Act, Act June 25, 1910, c. 395, 36 Stat.
825, 18 U.S.C.A. § 2421 et seq., making it an offense to pro-
cure the interstate transportation of a girl for the pur-
pose of prostitution and debauchery, "debauchery" is not
limited to the meaning of seduction, but includes a pur-
pose to expose her to such influence as will naturally and
inevitably so corrupt her character as to lead her to acts
of sexual immorality, or, if she is already a sexually cor-
rupt woman, a purpose that she shall engage or continue
more or less habitually in sexually immoral practices.
Van Pelt v. United States, C.C.A.Va., 240 F. 346, 348, L.R.
A.1917E, 1135.
DEBENTURE. A certificate given by the collec-
tor of a port, under the United States customs
laws, to the effect that an importer of merchan-
dise therein named is entitled to a drawback,
(q. v.,) specifying the amount and time when pay-
able. See Act Cong. March 2, 1799, § 80, 1 St. at
Large 687.
An instrument in use in some government de-
partments, particularly in England, by which the
government is charged to pay to a creditor or his
assigns the sum found due on auditing his ac-
counts. Brande; Blount.
A security for a loan of money issued .by a pub-
lic company, usually creating a charge on the
whole or a part of the company's stock and prop-
erty, though not necessarily in the form of a
mortgage. They are subject to certain regula-
tions as to the mode of transfer, and ordinarily
have coupons attached to facilitate the payment
of interest. They are generally issued in a series,
with provision that they shall rank part passe in
proportion to their amounts. See Bank v. Atkins,
72 Vt. 33, 47 A. 176; Cavanagh, Mon. Sec. 267;
56 L.J.R.Ch.D. 815; Brice, Ultra Vires (2d Ed.)
279.
A charge in writing on certain property, with
the repayment at a time fixed, of money lent by
a person therein named at a given interest.
Any instrument (other than a covering or trust
deed) which either creates or agrees to create a
debt in favor of one person or corporation, or
several persons or corporations, or acknowledges
such debt. Simonson, Debentures, 5.
A debenture is distinguished (1) from a mortgage which
is an actual transfer of property, (2) from a bond which
does not directly affect property, and (3) from a mere
charge on property which is individualized and does not
form part of a series of similar charges; Cay.Mon.Sec.
267, citing L.R. 10 Ch.D. 530, 681; 15 Ch.D. 465; 21 Ch. D.
762; L.R. 7 App.Cas. 673; Jones, Corp. B. & M. 1 32; 10
H.L.C. 191; L.R. 2 Ch.D. 337.
DEBENTURE INDENTURE. An indenture con-
taining obligations not secured by a mortgage or
other collateral; a key instrument in the process
of long term debt financing for general business
corporations. Its effect is to put the debenture-
holder in substantially the same practical position
as a bondholder secured by a first mortgage. See
"Business Lawyer" ( April 1966, pp. 678, 679, 680).
DEBENTURE STOCK. A stock or fund repre-
senting money borrowed by a company or public
body, in England, and charged on the whole or
part of its property. An issue of stock usually
irredeemable and transferable in any amount, not
including a fraction of a pound.
The terminability and fixity in amount of debentures
being inconvenient to lenders has led to their being in
many cases superseded by debenture stock. Whart. Lex.
Debet esse finis litium. There ought to be an
end of suits; there should be some period put to
litigation. Jenk. Cent. 61.
DEBET ET DETINET. (Lat. He owes and de-
tains.) Words anciently used in the original writ,
(and now, in English, in the plaintiff's declara7
tion,) in an action of debt, where it was brought
by one of the original contracting parties who per-
sonally gave the credit, against the other who per-
sonally incurred the debt, or against his heirs, if
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DEBET
they were bound to the payment; as by the ob-
ligee against the obligor, by the landlord against
the tenant, etc. The declaration, in such cases,
states that the defendant "owes to," as well as
"detains from," the plaintiff the debt or thing in
question; and hence the action is said to be "in
the debet et detinet." Where the declaration
merely states that the defendant detains the debt,
(as in actions by and against an executor for a
debt due to or from the testator,) the action is
said to be "in the detinet" alone. Fitzh. Nat. Brev.
119, G.; 3 Bl. Comm. 155.
DEBET ET SOLET. (Lat. He owes and is used
to.) Where a man sues in a writ of right or to
recover any right of which he is for the first time
disseised, as of a suit at a mill or in case of a
writ of quod permittat, he brings his writ in the
debet et solet. Reg. Orig. 144a; Fitzh. Nat. Brev.
122, M.
Debet quis juri subjacere ubi delinquit. One
[every one] ought to be subject to the law [of
the place] where he offends. 3 Inst. 34. This
maxim is taken from Bracton. Bract. fol. 154b.
Finch, Law, 14, 36; Wing. Max. 113; 3 Co. 231;
8 Scott N. R. 567.
DEBET SINE BREVE. (Lat. He owes without
declaration filed.) Used in relation to a confes-
sion of judgment.
Debet sua cuique domus esse perfugium tutis-
simum. Every man's house should be a perfect-
ly safe refuge. Clason v. Shotwell, 12 Johns.,
N.Y., 31, 54.
Debile fundamentum fallit opus. A weak foun-
dation frustrates [or renders vain] the work [built
upon it.] Shep. Touch. 60; Noy, Max. 5, max.
12; Finch, Law, b. 1, ch. 3. When the foundation
fails, all goes to the ground; as, where the cause
of action fails, the action itself must of necessity
fail. Wing. Max. 113, 114, max. 40; Broom, Max.
180.
DEBIT. A sum charged as due or owing. The
term is used in book-keeping to denote the left
page of the ledger, or the charging of a person or
an account with all that is supplied to or paid out
for him or for the subject of the account. Also,
the balance of an account where it is shown that
something remains due to the party keeping the
account.
In industrial insurance nomenclature, a certain
identified territory in which a solicitor operates
by soliciting new business and taking care, as
through collection of the debit accounts, of the
company's patrons for insurance theretofore writ-
ten; such insurance being usually written in small
amounts on the weekly payment plan. Jones v.
Prudential Ins. Co. of America, 173 Mo.App. 1, 155
S.W. 1106, 1107.
DEBITA FUNDI. L. Lat. In Scotch law. Debts
secured upon land. Ersk. Inst. 4, 1, 11.
DEBITA LAICORUM. L. Lat. In old English
law. Debts of the laity, or of lay persons. Debts
recoverable in the civil courts. Crabb. Eng. Law,
107.
Debita sequuntur personam debitoris. Debts
follow the person of the debtor; that is, they have
no locality, and may be collected wherever the
debtor can be found. 2 Kent, Comm. 429; Story,
Confl. Laws, § 362; Halkers, Max. 13.
DEBITOR. In the civil and old English law. A
debtor.
Debitor non pr asumitur donare. A debtor is
not presumed to make a gift. Whatever disposi-
tion he makes of his property is supposed to be in
satisfaction of his debts. 1 Kames, Eq. 212.
Where a debtor gives money or goods, or grants
land to his creditor, the natural presumption is
that he means to get free from his obligation, and
not to make a present, unless donation be ex-
pressed. Ersk. Inst. 3, 3, 93; Dig. 50, 16, 108; 1
P. Wms. 239; Wh. & Tud. L. Cas. Eq. 378.
Debitorum pactionibus creditorum petitio nec
tolli nec minui potest. 1 Poth. Obl. 108; Broom,
Max. 697, Bart. Max. 115. The rights of creditors
can neither be taken away nor diminished by
agreements among (or of) the debtors.
DEBITRIX. A female debtor.
DEBITUM. Something due, or owing, a debt.
Debitum et contractus sunt nullius loci. Debt
and contract are of [belong to] no place; have
no particular locality. 7 Co. 61. The obligation
in these cases is purely personal, and actions to
enforce it may be brought anywhere. 2 Inst. 231;
Story, Confl. Laws, § 362; 1 Smith, Lead. Cas. 340,
363; 7 M. & G. 1019, n.
DEBITUM IN PRIESENTI SOLVENDUM IN FU-
TURO. A debt or obligation complete when con-
tracted, but of which the performance cannot be
required till some future period.
DEBITUM SINE BREVI. L. Lat. Debt without
writ; debt without a declaration. In old practice,
this term denoted an action begun by original bill,
instead of by writ. In modern usage, it is some-
times applies to a debt evidenced by confession of
judgment without suit. The equivalent Norman-
French phrase was "debit sans breve." Both are
abbreviated to d. s. b.
DEBT. A sum of money due by certain and ex-
press agreement; as by bond for a determinate
sum, a bill or note, a special bargain, or a rent
reserved on a lease, where the amount is fixed
and specific, and does not depend upon any subse-
quent valuation to settle it. 3 Bl.Comm. 154;
Hagar v. Reclamation Dist., 111 U.S. 701, 4 S.Ct.
663, 28 L.Ed. 569; Neilson v. Title Guaranty &
Surety Co., 101 Or. 262, 199 P. 948, 951; Shultz v.
Ritterbusch, 38 Okl. 478, 134 P. 961, 968; W. S.
Tyler Co. v. Deutsche Dampfschifffahrts Gesell-
schaft Hansa, Bremen, Germany, D.C.Ohio, 276 F.
134, 136.
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DEBT
Ail unconditional promise to pay a fixed sum at a speci-
fied time. Lowery v. Fuller, 221 Mo.App. 495, 281 S.W. 968,
972. A contractual obligation to pay in the future for consid-
erations received in the present. Lesser v. Warren Borough,
237 Pa. 501, 85 A. 839, 841, 43 L.R.A.,N.S., 839. The word
"debt" carries with it the requirement of certainty, the
foundation of promise by express contract, and necessarily
implies legality. Clinton Mining & Mineral Co. v. Beacon,
C.C.A.Pa., 266 F. 621, 622, 14 A.L.R. 263.
The word "debt," in the definition of a mortgage as a
hypothecation or pledge of property as security for a debt,
means a duty or obligation to pay, for the enforcement of
which an action lies. Stollenwerck v. Marks & Gayle, 188
Ala. 587, 65 So. 1024, 1027, Ann.Cas.1917C, 981; Gibson v.
Hopkins, 80 W.Va. 756, 93 S.E. 826, 827.
Standing alone, the word "debt" is as applicable to a
sum of money which has been promised at a future day, as
to a sum of money now due and payable. To distinguish
between the two, it may be said of the former that it is
a debt owing, and of the latter that it is a debt due. A
sum of money which is certainly and in all events payable
is a debt, without regard to the fact whether it be payable
now or at a future time. A sum payable upon a contingen-
cy, however, is not a debt, or does not become a debt un-
til the contingency has happened. People v. Arguello, 37
Cal. 524..
A sum of money arising upon a contract, ex-
press or implied. Kimpton v. Bronson, 45 Barb.
N.Y., 618; Johnson v. Garner, D.C.Nev., 233 F.
756, 767. Also, the obligation to pay a sum cer-
tain; Indian Refining Co. v. Taylor, 195 Ind. 223,
143 N.E. 682, 689; or a sum which may be ascer-
tained by simple mathematical calculation from
known facts; H. G. Kilbourne Co. v. Standard
Stamp Affixer Co., 216 Mass. 118, 103 N.E. 469,
470; regardless of whether the liability arises by
contract or is implied or imposed by law; State
v. Latham, 136 Tenn. 30, 188 S.W. 534, 535; Lind-
strom v. Spicher, 53 N.D. 195, 205 N.W. 231, 233,
41 A.L.R. 968.
A "debt" is a specified sum of money owing to one per-
son from another, including not only the obligation of the
debtor to pay, but the right of the creditor to receive and
enforce payment. Angola Brick & Tile Co. v. Millgrove
School Tp., Steuben County, 73 Ind.App. 557, 127 N.E. 855,
856; Dewey v. Denson, 31 Ga.App. 352, 120 S.E. 805, 807.
A fixed and certain obligation to pay money or
some other valuable thing or things, either in the
present or in the future. Burke v. Boulder Mill-
ing & Elevator Co., 77 Colo. 230, 235 P. 574, 575.
In a still more general sense, that which is due
from one person to another, whether money,
goods, or services. Holman v. Hollis, 94 Fla. 614,
114 So. 254, 255; State v. State Board of Exam-
iners, 74 Mont. 1, 238 P. 316, 323.
A "debt" is an obligation arising otherwise than by sen-
tence by a court for a breach of the public peace or for
crime. Ruggles v. State, 120 Md. 553, 87 A. 1080, 1084.
In a broad sense, any duty to respond to an-
other in money, labor, or service; it may even
mean a moral or honorary obligation, unenforce-
able by legal action. U. S. Sugar Equalization
Board v. P. De Ronde & Co., C.C.A.Del., 7 F.2d
981, 984.
Also, sometimes, an aggregate of separate debts,
or the total sum of the existing claims against a
person or company. Thus we speak of the "na-
tional debt," the "bonded debt" of a corporation,
etc.
The word "debt" has no fixed legal meaning; Electric
Reduction Co. v. Lewellyn, C.C.A.Pa., 11 F.2d 493, 494;
but takes shades of meaning from the occasion of its use
. and color from accompanying words; Morrow v, Hayes,
226 Mich. 301, 197 N.W. 554, 555.
The word is of large import, including not only debts by
specialty, and debts of record, or judgments (Liberty Mut.
Ins. Co. v. Johnson Shipyards Corporation, C.C.A.N.Y., 6
F.2d 752, 755; Schooley v. Schooley, 184 Iowa 835, 169 N.
W. 56, 57, 11 A.L.R. 110; Bronson v. Syverson, 88 Wash.
264, 152 P. 1039, 1040, L.R.A.1916B, 993; Rosenberg v. Ros-
enberg, 152 Md. 49, 135 A. 840), but also obligations aris-
ing under simple contract, to a very wide extent; and in
its popular sense includes all that is due to a man under
any form of obligation or promise. McCrea v. First Nat.
Bank, 162 Minn. 455, 203 N.W.290; /Etna Ins. Co. v. Rob-
ertson, 126 Miss. 387, 88 So. 883, 890.
Synonyms
The term "demand" is of much broader import than
"debt," and embraces rights of action belonging to the
debtor beyond those which could appropriately be called
"debts." In this respect the term "demand" is one of
very extensive import. In re Denny, 2 Hill, N.Y., 223.
Nevertheless, "debt" may be synonymous with "claim";
In re Littleton's Estate, 223 N.Y.S. 470, 479, 129 Misc. 845;
and may include any kind of a just demand. Goldberg v.
Parker, 87 Conn. 99, 87 A. 555, 557, 46 L.R.A.,N.S., 1097,
Ann.Cas.1914C, 1059.
The word dues is equivalent to "debts," or that which is
owing and has a contractual significance. State v. Mort-
gage Security Co., 154 Minn, 453, 192 N.W. 348, 350.
"Debt" is not exactly synonymous with "duty." A debt
is a legal liability 'to pay a specific sum of money; a duty
is a legal obligation to perform some act. Allen v. Dick-
son, Minor, Ala., 120.
"Obligation" is a broader term than "debt." Bovee v.
Boyle, 25 Colo.App. 165, 136 P. 467, 469. Every obligation
is not a debt, though every debt is an obligation. Lind-
strom v. Spicher, 53 N.D. 195, 205 N.W. 231, 233, 41 A.L.R.
968; In re Moorehead's Estate, 289 Pa. 542, 137 A. 802, 806,
52 A.L.R. 1251.
The words "debt" and "liability" are not necessarily
synonymous. As applied to the pecuniary relations of
parties, liability is a term of broader significance than
debt. Coulter Dry Goods Co. v. Wentworth, 171 Cal. 500,
153 P. 939, 940. Liability is responsibility; the state of
one who is bound in law and justice to do something which
may be enforced by action. This liability may arise from
contracts either express or implied, or in consequence of
torts committed. McElfresh v. Kirkendall, 36 Iowa 226.
"Liability" ordinarily means an obligation which may or
may not ripen into a debt. Irving Bank-Columbia Trust
Co. v. New York Rys. Co., D.C.N.Y., 292 F. 429, 433. Yet
"debt" may sometimes include various kinds of liabilities.
See Allen v. Cosmopolitan Trust Co., 247 Mass. 334, 142 N.
E. 100, 103; Carroll v. Bowling, 151 Md. 59, 133 A. 851, 854.
In General
Active debt. One due to a person. Used in the
civil law.
Ancestral debt. One of an ancestor which the
law compels the heir to pay. Watkins v. Holman,
16 Pet. 25, 10 L.Ed. 873; A. & E. Encyc.
Debt by simple contract. A debt or demand
founded upon a verbal or implied contract, or
upon any written agreement that is not under seal.
Debt by specialty or special contract. A debt
due, or acknowledged to be due, by some deed or
instrument under seal; as a deed of covenant or
sale, a lease reserving rent, or a bond or obliga-
tion. 2 Bl.Comm. 465; In re Harris, 101 N.J.Eq.
5, 137 A. 215, 216; Kerr v. Lydecker, 51 Ohio St.
240. 37 N.E. 267, 23 L.R.A. 842; Marriott v. Thomp-
son, Willes, 189.
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DEBT
Debt ex mutuo. A species of debt or obligation
mentioned by Glanville and Bracton, and which
arose ex mutuo, out of a certain kind of loan.
Glan. lib. 10, c. 3; Bract. fol. 99. See Mutuum;
Ex Mutuo.
Debt of record. A debt which appears to be due
by the evidence of a court of record, as by a judg-
ment or recognizance. 2 B1.Comm. 465.
Doubtful debt. One of which the payment is un-
certain. Clef des Lois Romaines.
In Practice
The name of a common-law action, which lies
to recover a certain specific sum of money, or a
sum that can readily be reduced to a certainty. 3
B1.Comm. 154; 3 Steph.Comm. 461; 1 Tidd, Pr. 3;
Drennen Motor Car Co. v. Evans, 192 Ala. 150, 68
So. 303; Bullard v. Bell, 1 Mass. 243, Fed.Cas.No.
2,121; U. S. v. Claflin, 97 U.S. 546, 24 L.Ed. 1082;
Baum v. Tonkin, 110 Pa. 569, 1 A. 535.
It is thus distinguished from assumpsit, which lies as
well where the sum due is uncertain as where it is certain,
and from covenant, which lies only upon contracts evi-
denced in a certain manner.
It is said to lie in the debit and detinet, (when
it is stated that the defendant owes and detains,)
or in the detinet, (when it is stated merely that
he detains.) Debt in the detinet for goods differs
from detinue, because it is not essential in this
action, as in detinue, that the specific property in
the goods should have been vested in the plaintiff
at the time the action is brought. Dyer, 24b.
Existing debt. See Existing Debt.
Fraudulent debt. A debt created by fraud.
Such a debt implies confidence and deception. It
implies that it arose out of a contract, express
or implied, and that fraudulent practices were em-
ployed by the debtor, by which the creditor was
defrauded. Howland v. Carson, 28 Ohio St. 628.
Hypothecary debt. One which is a lien upon an
estate.
Judgment debt. See Judgment Debt.
Legal debts. Those that are recoverable in a
court of common law, as debt on a bill of ex-
change, a bond, or a simple contract. Rogers v.
Daniell, 8 Allen, Mass., 348; Guild v. Walter, 182
Mass. 225, 65 N.E. 68.
Liquid debt. One which is immediately and un-
conditionally due.
Mutual debts. Money due on both sides between
two persons. Such debts must be due to and from
same persons in same capacity. Dole v. Chatta-
briga, 82 N.H. 396, 134 A. 347, 348. Cross debts in
the same capacity and right, and of the same kind
and quality. Lippitt v. Thames Loan & Trust Co.,
88 Conn. 185, 90 A. 369, 374.
Passive debt. A debt upon which, by agreement
between the debtor and creditor, no interest is
payable, as distinguished from active debt; i. e., a
debt upon which interest is payable. In this sense,
the terms "active" and "passive" are applied to
certain debts due from the Spanish government
to Great Britain. Wharton. In another sense of
the wards, a debt is "active" or "passive" accord-
ing as the person of the creditor or debtor is re-
garded; a passive debt being that which a man
owes; an active debt that which is owing to him.
In this meaning every debt is both active and
passive,—active as regards the creditor, passive as
regards the debtor.
Privileged debt. One which is to be paid before
others in case a debtor is insolvent.
Public debt. That which is due or owing by the
government of a state or nation. The terms "pub-
lic debt" and "public securities," used in legisla-
tion, are terms generally applied to national or
state obligations and dues, and would rarely, if
ever, be construed to include town debts or obli-
gations; nor would the term "public revenue"
ordinarily be applied to funds arising from town
taxes. Morgan v. Cree, 46 Vt. 773, 14 Am.Rep.
640.
Pure debt. In Scotch law. A debt due now and
unconditionally is so called. It is thus distin-
guished from a future debt,—payable at a fixed
day in the future,—and a contingent debt, which
will only become due upon the happening of a cer-
tain contingency.
Simple contract debt. One where the contract
upon which the obligation arises is neither ascer-
tained by matter of record nor yet by deed or spe-
cial instrument, but by mere oral evidence the
most simple of any, or by notes unsealed, which
are capable of a more easy proof, and therefore
only better than a verbal promise. 2 Bl.Comm.
466.
Solvent debts. In Pennsylvania, the "solvent
debts" which a city may deduct from its gross in-
debtedness pursuant to Act April 20, 1874, P.L. 65,
in ascertaining its borrowing capacity, are debts
due it directly, payment of which it can enforce as
one of its quick assets for the liquidation of any of
its obligations. McGuire v. City of Philadelphia,
245 Pa. 287, 91 A. 622, 623.
Specialty debt. See Debt by Specialty or Special
Contract, supra.
DEBTEE. A person to whom a debt is due; a
creditor. 3 Bl.Comm. 18; Plowd. 543. Not used.
DEBTOR. One who owes a debt; he who may be
compelled to pay a claim or demand. Anyone lia-
ble on a claim, whether due or to become due.
Cozart v. Barnes, C.C.A.S.C., 240 F. 935, 938.
The term may be used synonymously with "obligor,"
"mortgagor," and the like. McDuffle v. Faulk, 214 Ala.
221, 107 So. 61, 62.
Common Debtor
In Scotch law. A debtor whose effects have been
arrested by several creditors. In regard to these
creditors, he is their common debtor, and by this
term is distinguished in the proceedings that take
place in the competition. Bell
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DECEIT
Debtor's Act 1869
The statute 32 & 33 Vict. c. 62, abolishing im-
prisonment for debt in England, and for the pun-
ishment of fraudulent debtors. 2 Steph.Comm.
159-164. Not to be confounded with the Bankrupt-
cy Act of 1869. Mozley & Whitley.
Debtor's Summons
In English law. A summons issuing from a
court having jurisdiction in bankruptcy, upon the
creditor proving a liquidated debt of not less than
150, which he has failed to collect after reasonable
effort, stating that if the debtor fail, within one
week , if a trader, and within three weeks if a non-
trader, to pay or compound for the sum specified, a
petition may be presented against him praying
that he may be adjudged a bankrupt. Bankruptcy
Act 1869, § 7; Robs.Bankr.; Mozley & Whitley.
DECALOGUE. The ten commandments which,
according to Exodus XX, 1-18, were given by God
to Moses. The Jews called them the "Ten Words,"
hence the name.
DECANATUS. A deanery. Spelman. A com-
pany of ten persons. Calvin.
Also (and in this sense sometimes spelled De-
cania, or Decana), a town or tithing, consisting
originally of ten families of freeholders. Ten
tithings compose a hundred. 1 Bla.Comm. 114;
Medley, Orig.Illus.Eng.Const.Hist.
DECANIA. The office, jurisdiction, territory, or
command of a decanus, or dean. Spelman.
DECANUS.
In Ecclesiastical and Old European Law
An officer having supervision over ten; a dean.
A term applied not only to ecclesiastical, but to
civil and military, officers. Decanus monasticus;
a monastic dean, or dean of a monastery; an of-
ficer over ten monks. Decanus in majori ecclesice;
dean of a cathedral church, presiding over ten
prebendaries. Decanus episcopi; a bishop's or
rural dean, presiding over ten clerks or parishes.
Decanus friborgi; dean of a friborg. An officer
among the Saxons who presided over a friborg,
tithing, decennary, or association of ten inhabi-
tants; otherwise called a "tithing man," or "bors-
holder," his duties being those of an inferior
judicial officer.  Du Cange; Spelman, Gloss.;
Calvinus, Lex. Decanus militaris; a military offi-
cer having command of ten soldiers. Spelman.
In Roman Law
An officer having the command of a company
or "mess" of ten soldiers. Also an officer at Con-
stantinople having charge of the burial of the
dead. Nov.Jus. 43, 59; Du Cange.
DECAPITATION. The act of beheading. A mode
of capital punishment by cutting off the head.
DECEASE, n. Death; not including civil death,
(see Death.) In re Zeph's Estate, 50 Hun, 523, 3
N.Y.S. 460.
DECEASE, v. To die; to depart life, or from life.
This has always been a common term in Scotch
law. "Gif ane man deceasis." Skene.
DECEASED. A dead person. In re Kite's Estate,
194 Iowa, 129, 187 N.W. 585, 587, 24 A.L.R. 850.
DECEDENT. A deceased person, especially one
who has lately died. Etymologically the word de-
notes a person who is dying, but it has come to be
used in law as signifying any deceased person,
testate or intestate. In re Zeph's Estate, 50 Hun,
523, 3 N.Y.S. 460.
DECEIT. A fraudulent and cheating misrepresen-
tation, artifice, or device, used by one or more per-
sons to deceive and trick another, who is ignorant
of the true facts, to the prejudice and damage of
the party imposed upon. People v. Chadwick, 143
Cal. 116, 76 P. 884; French v. Vining, 102 Mass.
132, 3 Am.Rep. 440; In re Post, 54 Hun, 634, 7
N.Y.S. 438.
A fraudulent misrepresentation or contrivance,
by which one man deceives another, who has no
means of detecting the fraud, to the injury and
damage of the latter.
A subtle trick or device, whereunto may be referred all
manner of craft and collusion used to deceive and defraud
another by any means whatsoever, which hath no other
or more proper name than deceit to distinguish the offense.
[West Symb. § 68]; Jacob.
A "deceit" is either : (1) The suggestion, as a fact, of
that which is not true, by one who does not believe it to be
true; (2) the assertion, as a fact, of that which is not
true, by one who has no reasonable ground for believing it
to be true; (3) the suppression of a fact, by one who is
bound to disclose it, or who gives information of other
facts which are likely to mislead for want of communica-
tion of that fact; or (4) a promise, made without any in-
tention of performing it. Civ.Code Cal. § 1710; Civ.Code
S.D. § 1293 (Comp.Laws 1929, § 797).
To constitute "deceit," the statement must be untrue,
made with knowledge of its falsity or with reckless and
conscious ignorance thereof, especially if parties are not
on equal terms, made with intent that plaintiff act there-
on or in a manner apparently fitted to induce him to act
thereon, - and plaintiff must act in reliance on the state-
ment in the manner contemplated, or manifestly probable,
to his injury. Corley Co. v. Griggs, 192 N.C. 171, 134 S.E.
406, 407; Pain v. Kiel, C.C.A.Mo., 288 F. 527, 529. See,
also, Crossman v. Bacon & Robinson Co., 119 Me. 105, 109
A. 487, 489; Alpine v. Friend Bros., 244 Mass. 164, 138 N.
E. 553, 554; Hood v. Wood, 61 Okl. 294, 161 P. 210, 213.
The essential elements of "deceit" are representation,
falsity, scienter, deception, and injury. Ochs v. Woods,
221 N.Y. 335, 117 N.E. 305, 306.
In Old English Law
The name of an original writ, and the action
founded on it, which lay to recover damages for
any injury committed deceitfully, either in the
name of another, (as by bringing an action in an-
other's name, and then suffering a nonsuit, where-
by the plaintiff became liable to costs,) or by a
fraudulent warranty of goods, or other personal
injury committed contrary to good faith and hon-
esty. Reg.Orig. 112-116; Fitzh.Nat.Brev. 95, E,
98.
Also the name of a judicial writ which formerly
lay to recover lands which had been lost by de-
fault by the tenant in a real action, in consequence
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DECEIT
of his not having been summoned by the sheriff,
or by the collusion of his attorney. Rosc.Real
Act. 136; 3 B1.Comm. 166.
In General
Deceitful plea. A sham plea; one alleging as
facts things which are obviously false on the face
of the plea. Gray v. Gidiere, 4 Strob., S.C., 443.
DECEM TALES. (Ten such; or ten tales, jurors.)
In practice. The name of a writ which issues in
England, where, on a trial at bar, ten jurors are
necessary to make up a full panel, commanding
the sheriff to summon the requisite number. 3
B1.Comm. 364; Reg.Jud. 30b; 3 Steph.Comm. 602.
DECEMVIRI LITIBUS JUDICANDIS. Lat. In
the Roman law. Ten persons (five senators and
five equites) who acted as the council or assistants
of the praetor, when he decided on matters of law.
Hallifax, Civil Law, b. 3, c. 8. According to oth-
ers, they were themselves judges, appointed by
Augustus to act in certain cases. Calvinus, Lex.;
Anthon, Rom.Ant.
DECENCY. Propriety of action, speech, dress,
etc. Universal Film Mfg. Co. v. Bell, 100 Misc.
281, 167 N.Y.S. 124, 128.
DECENNA. In old English law. A tithing or
decennary; the precinct of a frank-pledge; con-
sisting of ten freeholders with their families.
Spelman.
DECENNARIUS. Lat. One who held one-half a
virgate of land. Du Cange. One of the ten free-
holders in a decennary. Id.; Calvin. Decennier.
One of the decennarii, or ten freeholders making
up a tithing. Spelman; Du Cange, Decenna; 1
Bla.Comm. 114.
DECENNARY. A tithing, composed of ten neigh.
boring families. 1 Reeve, Eng.Law, 13; 1 131.
Comm. 114.
King Alfred, for the better preservation of the peace,
divided England into counties, the counties into hundreds,
and the hundreds into tithings or deceRnaries : the in-
habitants whereof, living together, were sureties or
pledges for each other's good behavior.
DECEPTION. The act of deceiving; intentional
misleading by falsehood spoken or acted. Smith
v. State, 13 Ala.App. 399, 69 So. 402, 403.
DECEPTIONE. A writ that lieth properly against
him that deceitfully doth anything in the name of
another, for one that receiveth damage or hurt
thereby. It is either original or judicial. Fitzh.
N.B.
Deceptis non decipientibus, jura subveniunt. The
laws help persons who are deceived, not those
deceiving. Tray. Lat. Max. 149.
DECERN. In Scotch law. To decree. "Decernit
and ordainit." 1 How. State Tr. 927. "Decerns."
ShaW, 16.
DECESSUS. In the civil and old English law.
Death; departure.
Decet tamen principem servare leges quibus ipse
servatus est. It behooves, indeed, the prince to
keep the laws by which he himself is preserved.
DECIDE. To "decide" includes the power and
right to deliberate, to weigh the reasons for and
against, to see which preponderate, and to be gov-
erned by that preponderance. Darden v. Lines,
2 Fla. 571; In re Milford & M. R. Co., 68 N.H.
570, 36 A. 545.
DECIES TANTUM (Ten times as much). The
name of an ancient writ that was used against a
juror who had taken a bribe in money for his ver-
dict. The injured party could thus recover ten
times the amount of the bribe.
DECIMZE. In ecclesiastical law. Tenths, or
tithes. The tenth part of the annual profit of each
living, payable formerly to the pope. There were
several valuations made of these livings at dif-
ferent times. The decimce (tenths) were appro-
priated to the crown, and a new valuation estab-
lished, by 26 Hen. VIII., c. 3. 1 Bl.Comm. 284.
See Tithes.
Decimw debentur paroche. Tithes are due to
the parish priest.
Decimce de decimatis solvi non debent. Tithes
are not to be paid from that which is given for
tithes.
Decimx de jure divino et canonica institutione
pertinent ad personam. Dal. 50. Tithes belong to
the parson by divine right and canonical institu-
tion.
Decimm non debent solvi, ubi non est annna ren-
ovatio; et ex annuatis renovantibus simui semei.
Cro. Jac. 42. Tithes ought not to be paid where
there is not an annual renovation, and from annual
renovations once only.
DECIMATION. The punishing of every tenth
soldier by lot, for mutiny or other failure of duty.
This was termed "decimatio legionis" by the Ro-
mans. Sometimes only the twentieth man was
punished, (vicesimatio,) or the hundredth, (cen-
tesimatio.)
DECIME. A French coin of the value of the
tenth part of a franc, or nearly two cents.
DECINERS. Those that had the oversight and
check of ten friburgs for the maintenance of the
king's peace. Cunningham.
Decipi quam fallere est tutius. It is safer to be
deceived than to deceive. Lofft, 396.
DECISION. A popular rather than technical or
legal word; a comprehensive term having no fixed,
legal meaning. It may be employed as referring
to ministerial acts as well as to those that are ju-
dicial or of a judicial character, Palmer Pub. Co.
v. Smith, 130 Tex. 346, 109 S.W.2d 158, 159; such
as decision of architects, Independent School
Dist. No. 35, St. Louis County, v. A. Hedenberg
& Co., 214 Minn. 82, 7 N.W.2d 511, 515; of county
commissioners, Houser v. Olmstead, 57 S.D. 41,
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DECLARATION
230 N.W. 224, 225; or of industrial commission,
Rosenquist v. O'Neil & Preston, 187 Minn. 375,
245 N.W. 621.
A judgment or decree pronounced by a court
in settlement of a controversy submitted to it and
by way of authoritative answer to the questions
raised before it. Adams v. Railroad Co., 77 Miss.
194, 24 So. 317, 60 L.R.A. 33; Board of Education
v. State, 7 Kan.App. 620, 52 P. 466.
A judgment given by a competent' tribunal.
Eastman Kodak Co. v. Richards, 123 Misc. 83, 204
N.Y.S. 246, 248.
The findings of fact and conclusions of law
which must be in writing and filed with the clerk.
Stewart Mining Co. v. Ontario Mining Co., 23
Idaho, 724, 132 P. 787, 791; Wilcox v. Sway, 69
Cal.App.2d 141, 160 P.2d 154, 156.
A finding, as by a court, upon either a question of law or
fact arising in a case. Vermont Marble Co. v. Eastman, 91
Vt. 425, 101 A. 151, 160. The court's finding or findings.
Volderauer v. State, 195 Ind. 415, 143 N.E. 674, 676;
Chambers v. Farnham, 39 Cal.App. 17, 179 P. 423, 424.
A determination of a judicial or quasi judicial
nature. Codington County v. Board of Com'rs of
Codington County, 51 S.D. 131, 212 N.W. 626, 628.
Statement by trial justice after trial before court with-
out jury does not constitute "decision." Shaul v. Fidelity
& Deposit Co. of Maryland, 131 Misc. 401, 227 N.Y.S. 163,
1.68. A "decision" involves reaching a conclusion. Lam-
bros v. Young, 145 F.2d 341, 343, 79 U.S.App.D.C. 247.
The term is broad enough to cover both final judgments
and interlocutory orders. Stout v. Stout, 68 Ind.App. 278,
131 N.E. 245, 246. And though sometimes limited to the
sense of judgment; Industrial Commission of Ohio v. Mus-
selli, 102 Ohio St. 10, 130 N.E. 32, 33; the term is at other
times understood as meaning simply the first step leading
to a judgment; Dorney v. Ives, 36 R.I. 276, 90 A. 164, 165;
or as an order for judgment; Collins v. Belland, 37 Cal.
App. 139, 173 P. 601, 602. The word may also include var-
ious rulings, as well as orders. U. S. v. Thompson, 251 U.
S. 407, 40 S.Ct. 289, 291, 64 L.Ed. 333; Marr v. Marr, 194
Cal. 332, 228 P. 534, 535.
The words "decision" and judgment" may be used in-
terchangeably, but in the abstract there is a shade of dif-
ference between the two. Smith v. State, 196 Ga. 595, 27
S.E.2d 369, 373.
"Decision" is not necessarily synonymous with "opin-
ion." A decision of the court is its judgment; the opin-
ion is the reasons given for that judgment, or the expres-
sion of the views of the judge. Craig v. Bennett, 158 Ind.
9, 62 N.E. 273; But the two words are sometimes used
interchangeably. Pierce v. State, 109 Ind. 535, 10 N.E. 302;
Keller v. Summers, 262 Mo. 324, 171 S.W. 336, 337.
The French lawyers call the opinions which they give
on questions propounded to them, decisions. See Inst. 1,
2, 8; Dig. 1, 2, 2.
DECISIVE, or DECISORY, OATH. See Oath.
DECISION ON MERITS. A decision determining
the validity of a written instrument or passing on
a controversy with respect to the interpretation
thereof which bars subsequent suit on same cause
of action. Eulenberg v. Torley's Inc., 56 Cal.App.
2d 653, 133 P.2d 15, 17.
DECLARANT. A person who makes a declara-
tion.
DECLARATION.
In Pleading
The first of the pleadings on the part of the
plaintiff in an action at law, being a formal and
methodical specification of the facts and circum-
stances constituting his cause of action. It com-
monly comprises several sections or divisions,
called "counts," and its formal parts follow each
other in this order: Title, venue, commencement,
cause of action, counts, conclusion. The declara-
tion, at common law, answers to the "libel" in ec-
clesiastical and admiralty law, the "bill" in equity,
the "petition" in civil law, the "complaint" in
code pleading, and the "count" in real actions. U.
S. v. Ambrose, 108 U.S. 336, 2 S.Ct. 682, 27 L.Ed.
746; Railway Co. v. Nugent, 86 Md. 349, 38 A.
779, 39 L.R.A. 161; Dixon v. Sturgeon, 6 Serg.
& R. (Pa.) 28; 1 Chit.Pl. 248; Co.Litt. 17 a, 303 a;
Bacon, Abr. Pleas (B) ; Comyns, Dig. Pleader,
C, 7; Lawes, Pl. 35; Steph.Pl. 36; Leslie v. Men-
delson, 302 Mich. 95, 4 N.W.2d 481, 484.
It may be general or special: for example, in debt on a
bond, a declaration counting on the penal part only is gen-
eral; one which sets out both the bond and the condition
and assigns the breach is special; Gould, Pl. c. 4, § 50.
In Evidence
An unsworn statement or narration of facts
made by a party to the transaction, or by one who
has an interest in the existence of the facts re-
counted. Also, similar statements made by a per-
son since deceased, which are admissible in evi-
dence in some cases, contrary to the general rule,
e. g., "dying declarations" (see that subtitle, in-
fra).
In Practice
The declaration or declaratory part of a judg-
ment, decree, or order is that part which gives the
decision or opinion of the court on the question
of law in the case. Thus, in an action raising a
question as to the construction of a will, the judg-
ment or order declares that, according to the true
construction of the will, the plaintiff has become
entitled to the residue of the testator's estate, or
the like. Sweet.
In Scotch Practice
The statement of a criminal or prisoner, taken
before a magistrate. 2 Alis. Crim. Pr. 555; 2
Hume 328; Arkl. Just. 70; Paterson, Comp. §1
952, 970.
In General
A "declaration" is a statement made out of
court. Dawson v. Davis, 125 Conn. 330, 5 A.2d
703, 704.
Declaration against interest. Such declarations
are evidence of the fact declared, and are there-
fore distinct from admissions, which amount to a
waiver of proof. Jelser v. White, 183 N.C. 126,
110 S.E. 849, 850. They are statements which,
when made, conflict with the pecuniary interest
of the person making them, who need not have
been a party, privy or witness to the suit in which
they are offered. Elliotte v. Lavier, 299 Mich.
373, 300 N.W. 116, 118.
Declaration in chief. A declaration for the prin-
cipal cause of action. 1 Tidd, Pr. 419.
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DECLARATION
Declaration of dividend. The act of a corpora-
tion in setting aside a portion of the net or sur-
plus proceeds for distribution among the stock-
holders according to their respective interests.
First Nat. Bank & Trust Co. v. Glenn, D.C.Ky.,
36 F.Supp. 552, 554. See, also, Dividend.
Declaration of homestead. A creature of, and its
validity depends upon, compliance with home-
stead statute. It is merely an act of the owner
whereby he avails himself of, and secures, a right
or privilege given him by statute; it is neither
a conveyance nor a contract, and there is no trans-
fer of, or change in, title, nor any agreement of
transfer or change. U. S. Fidelity & Guaranty Co.
v, Adloway, 173 Wash. 404, 23 P.2d 408. See, also,
Homestead.
Declaration of independence. A formal decla-
ration or announcement, promulgated July 4, 1776,
by the congress of the United States of America,
in the name and behalf of the people of the col-
onies, asserting and proclaiming their independ-
ence of the British crown, vindicating their preten-
sions to political autonomy, and anouncing them-
selves to the world as a free and independent na-
tion.
Declaration of intention. A declaration made
by an alien, as a preliminary to naturalization, be-
fore a court of record, to the effect that it is his
intention in good faith to become a citizen of the
United States, and to renounce forever all allegi-
ance and fidelity to any foreign prince, potentate,
state, or sovereignty whereof at the time he may
be a citizen or subject. 8 U.S.C.A. § 731.
Declaration of right. See Bill of Rights.
Declaration of trust. The act by which the per-
son who holds the legal title to property or an es-
tate acknowledges and declares that he holds the
same in trust to the use of another person or for
certain specified purposes. The name is also used
to designate the deed or other writing embodying
such a declaration. Griffith v. Maxfield, 66 Ark.
513, 51 S.W. 832. See Baker v. Baker, 123 Md.
32, 90 A. 776, 779 (bank deposit) ; Del Giorgio v.
Powers, 27 Ca1.App.2d 668, 81 P.2d 1006, 1012
(mining claim) ; Bingen v. First Trust Co. of
St. Paul, C.C.A.Minn., 103 F.2d 260, 264 (letter).
Declaration of war. A public and formal proc-
lamation by a nation, through its executive or leg-
islative department, that a state of war exists be-
tween itself and another nation, and forbidding
all persons to aid or assist the enemy.
An act of Congress is necessary to the commencement of
a foreign war and is in itself a "declaration" and fixes
the date of the war. West v. Palmetto State Life Ins. Co.,
202 S.C. 422, 25 S.E.2d 475, 477, 145 A.L.R. 1461; Rosenau
v. Idaho Mut. Ben. Ass'n, 65 Idaho 408, 145 P.2d 227, 230.
Dying declarations. Statements made by a per-
son who is lying at the point of death, and is con-
scious of his approaching dissolution, in reference
to the manner in which he received the injuries
of which he is dying, or other immediate cause of
his death, and in reference to the person who in-
flicted such injuries or the connection with such
injuries of a person who is charged or suspected
of having committed them; which statements are
admissible in evidence in a trial for homicide (and
occasionally, at least in some jurisdictions, in oth-
er cases) where the killing of the declarant is
the crime charged to the defendant. Shepard v.
U. S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196;
See generally Simons v. People, 150 Ill. 66, 36 N.E.
1019; Frier v. State, 92 Fla. 241, 109 So. 334, 335;
Lucas v. Commonwealth, 153 Ky. 424, 155 S.W.
721, 722; Edwards v. State, 113 Neb. 698, 204 N.W.
780, 783; People v. Selknes, 309 Ill. 113, 140 N.E.
852, 854. Also Barsch v. Hammond, 110 Colo. 441,
135 P.2d 519, 521 (motorist); Waller v. Common-
wealth, 178 Va. 294, 16 S.E.2d 808, 813 (shooting) ;
State v. Brown, 209 Minn. 478, 296 N.W. 582, 586
(abortion).
Statements made by deceased while on operating table
were inadmissible as "dying declarations" where there was
no statement by deceased himself that he knew that death
was approaching. People v. Hall, 260 App.Div. 421, 22 N.Y.
S.2d 973, 976.
Self-serving declaration. One made by a party
in his own interest at some time and place out of
court;-not including testimony which he gives
as witness at the trial. Brosnan v. Boggs, 101
Or. 472, 198 P. 890, 892.
DECLARATION OF LONDON. A declaration
concerning the laws of naval war, agreed upon
February 26, 1909, by the powers assembled at
the London Naval Conference.
The preamble states that the Declaration was made in
view of the desirability of an agreement upon the rules to
be applied by the International Prize Court established by
the Second Hague Conference. A preliminary provision
states that it is agreed that the rules adopted "correspond
in substance with the generally recognized principles of
international law." The subjects dealt with by the Dec-
laration include Blockade, Contraband, Unneutral Service,
Destruction of Neutral Prizes, Transfer to Neutral Flag,
Enemy Character, Convoy, Search, and Compensation.
Higgins, 538-613.
DECLARATION OF PARIS. The name given to
an agreement announcing four important rules
of international law effected between the principal
European powers at the Congress of Paris in
1856. These rules are: (1) Privateering is and
remains abolished; (2) the neutral flag covers
enemy's goods, except contraband of war; (3)
neutral goods, except contraband of war, are not
liable to confiscation under a hostile flag; (4)
blockades, to be binding, must be effective.
DECLARATION OF ST. PETERSBURG. A dec.
laration made at St. Petersburg in 1868 on behalf
of certain of the powers in relation to the prohibi-
tion of the use of explosive bullets in time of war,
DECLARATOR. In Scotch law. An action
whereby it is sought to have some right of prop-
erty, or of status, or other right judicially ascer-
tained and declared. Bell.
DECLARATOR OF TRUST. An action resorted
to against a trustee who holds property upon ti-
tles ex facie for his own benefit. Bell
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DECOLLATIO
DECLARATORY. Explanatory; designed to fix
or elucidate what before was uncertain or doubt-
ful.
DECLARATORY ACTION. In Scotch law. An
action in which the right of the pursuer (or plain-
tiff) is craved to be declared, but nothing claimed
to be done by the defender (defendant.) Ersk.
Inst. 5, 1, 46. Otherwise called an "action of de-
clarator."
DECLARATORY DECREE. In practice. A bind-
ing declaration of right in equity without conse-
quential relief.
DECLARATORY JUDGMENT. One which sim-
ply declares the rights of the parties or expresses
the opinion of the court on a question of law, with-
out ordering anything to be done. Its distinctive
characteristics are that no executory process fol-
lows as of course, nor is it necessary that an ac-
tual wrong, giving rise to action for damages,
should have been done, or be immediately threat-
ened. Great Lakes Dredge & Dock Co. v. Huff-
man, La., 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407;
Petition of Kariher, 284 Pa. 455, 131 A. 265, 268;
Village of Bay v. Gelvick, 58 Ohio App. 51, 15 N.E.
2d 786, 791. It must deal with real dispute of real
fact. Rauh v. Fletcher Savings & Trust Co., 207
Ind. 638, 194 N.E. 334, 335. It is distinguished
from other actions in that it does not seek execu-
tion or performance from the defendant or op-
posing party. Brindley v. Meara, Ind., 209 Ind.
144, 198 N.E. 301, 101 A.L.R. 682; Gutensohn v.
Kansas City Southern Ry. Co., C.C.A.Mo., 140 F.
2d 950.
DECLARATORY PART OF A LAW. That which
clearly defines rights to be observed and wrongs
to be eschewed.
DECLARATORY STATUTE. One enacted for
the purpose of removing doubts or putting an end
to conflicting decisions in regard to what the law
is in relation to a particular matter. It may either
be expressive of the common Iaw, 1 Bl. Comm. 86;
Gray v. Bennett, 3 Mete., Mass., 527; In re Un-
garo's Will, 88 N.J.Eq, 25, 102 A. 244, 246, or may
declare what shall be taken to be the true mean-
ing and intention of a previous statute, though
in the latter case such enactments are more com-
monly called "expository statutes." McMahon v.
Maddox, Tex.Civ.App., 297 S.W. 310, 312.
A statute enacted to put an end to a doubt as
to what is the common law, or the meaning of an-
other statute, and which declares what it is and
ever has been. Nelson v. Sandkamp, 227 Minn.
177, 34 N.W.2d 640, 642, 5 A.L.R.2d 1136.
DECLARE. To make known, manifest, or clear.
Lasier v. Wright, 304 Ill. 130, 136 N.E. 545, 552,
28 A.L.R. 674. To signify, to show in any man-
ner either by words or acts. Edwardson v. Ger-
wien, 41 N.D. 506, 171 N.W. 101, 102. To publish;
to utter; to announce clearly some opinion or res-
olution. Knecht v. Ins. Co., 90 Pa. 121, 35 Am.
Rep. 641. As to "declare" a dividend. A. T. Jer-
gins Trust v. Rogan, D.C.Cal., 40 F.Supp. 40, 42.
Black's Law Dictionary Revised 4th Ed.-32
To allege or affirm. State v. Hostetter, Mo.Sup.,
222 S.W. 750, 754. To solemnly assert a fact be-
fore witnesses, e. g., where a testator declares a
paper signed by him to be his last will and testa-
ment. Lane v. Lane, 95 N.Y. 498.
This also is one of the words customarily used in the
promise given by a person who is affirmed as a witness,-
"sincerely and truly declare and affirm." Hence, to make
a positive and solemn asseveration. Bassett v. Denn, 17 N.
J. Law, 433.
With reference to pleadings, it means to draw
up, serve, and file a declaration; e. g., a "rule to
declare." Also to allege in a declaration as a
ground or cause of action; as "he declares upon
a promissory note."
DECLINATION. In Scotch law. A plea to the
jurisdiction, on the ground that the judge is in-
terested in the suit.
DECLINATOIRES. In French law. Pleas to the
jurisdiction of the court; also of lis pendens, and
of connexite, (q. v.).
DECLINATORY EXCEPTIONS are such dilatory
exceptions as merely decline the jurisdiction of
the judge before whom the action is brought..
Code Proc. La. 334. A plea to the jurisdiction ra-
tionae personae. Diamond T. Motor Trucks V.
Heck, La.App., 13 So.2d 512, 514.
DECLINATORY PLEA. In English practice.
The plea of sanctuary, or of benefit of clergy, be-
fore trial or conviction. 2 Hale, P.C. 236; 4 Bl,
Comm. 333. Now abolished. 6 & 7 Geo. IV, c. 28,
§ 6; Mozl. & W. Diet.; 4 Steph. Comm. 400, note;
Id. 436, note.
DECLINATURE. In Scotch practice, An objec,
tion to the jurisdiction of a judge. Bell.
DECLINE. A failing process, a tendency to a
worse state; to become gradually impaired; a,
falling off or downward tendency. Exum v. Laub,
C.C.A.Tex., 87 F.2d 73, 74; Buffalo County v.
Phelps County, 129 Neb. 268, 261 N.W. 360.
DECOCTION. The act of boiling a substance in
water, for extracting its virtues. The operation
of boiling certain ingredients in a fluid for the
purpose of extracting the parts soluble at that
temperature. Also the liquor in which a substance
has been boiled; water impregnated with the
principles of any animal or vegetable substance
boiled in it. Webster; Sykes v. Magone, C.C.N.Y.,
38 F. 497.
In an indictment "decoction" and "Infusion" are ejusdem.
generic; and if one is alleged to have been administered,
instead of the other, the variance is immaterial. 3 Camp.
74.
DECOCTOR. In the Roman law. A bankrupt;
a spendthrift; a squanderer of public funds. Cal-
vin.
DECOLLATIO. In old English and Scotch law.
Decollation; the punishment of beheading. Fleta,
lib. 1, c. 21, § 6.
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DECOMPOSED
DECOMPOSED. A state of decomposition.
United States v. 1851 Cartons, More or Less, etc.,
D.C.Colo., 55 F.Supp. 343, 346; A. 0. Anderson &
Co. v. U. S., C.C.A.Wash., 284 F. 542, 544. A sep-
aration into components; specifically, decay or
dissolution. In re Vetter, Cust. & Pat.App., 96
F.2d 999, 1000.
DECONFES. In French law. A name formerly
given to those persons who died without confes-
sion, whether they refused to confess or whether
they were criminals to whom the sacrament was
refused. Droit de -Canon, per M. l'Abbe Andre;
Dupin, Gloss. to Loisel's Institutes.
DECORATE. To beautify. To do something, as
to a house as such, to improve the condition of
the house, or of a room. Grasell v. Brodhead,
175 App.Div. 874, 162 N.Y.S. 421, 423. The addi-
tion of something becoming or beautiful. Upsal
Street Realty Co. v. Rubin, 326 Pa. 327, 192 A.
481, 483.
DECORATOR. One whose business is the decora-
tion of dwellings or public edifices. Grasell v.
Brodhead, 175 App.Div. 874, 162 N.Y.S. 421, 423.
DECOY. To inveigle, entice, tempt, or lure; as,
to decoy a person within the jurisdiction of a court
so that he may be served with process, or to decoy
a fugitive criminal to a place where he may be ar-
rested without extradition papers, or to decoy one
away from his place of residence for the purpose
of kidnapping him and as a part of that act. In
all these uses, the word implies enticement or lur-
ing by means of some fraud, trick, or temptation,
but excludes the idea of force. Eberling v. State,
136 Ind. 117, 35 N.E. 1023; John v. State, 44 P.
51, 6 Wyo. 203.
Also, a "decoy pond." See that title, infra.
DECOY LETTER. A letter prepared and mailed
for the purpose of detecting a criminal, particu-
larly one who is perpetrating frauds upon the pos-
tal or revenue laws. U. S. v. Whittier, 5 Dill. 39,
Fed, Cas. No. 16,688.
DECOY POND. A pond used for the breeding
and maintenance of water-fowl. Keeble v. Hick-
eringshall, 3 Salk. 10; 11 Mod. 74, 130; Holt 14;
11 East 571.
DECREE,
In Practice
The judgment of a court of equity or ad-
miralty, answering for most purposes to the
judgment of a court of common law. A de-
cree in equity is a sentence or order of the
court, pronounced on hearing and understanding
all the points in issue, and determining the rights
of all the parties to the suit, according to equity
and good conscience. 2 Daniell, Ch.Pr. 986; Woos-
ter v. Handy, C.C.N.Y., 23 F. 49, 56; Motion Pic-
ture Patents Co. v. Universal Film Mfg. Co., D.C.,
N.Y., 232 F. 263, 265; Bull v. International Power
Co., 84 N.J.Eq. 209, 93 A. 86, 88; Alford v. Leon-
ard, 88 Fla. 532, 102 So. 885, 890. It is a declara-
tion of the court announcing the legal consequenc-
es of the facts found. Robertson v. Talmadge,
Tex.Civ.App., 174 S.W. 627, 629.
A decree, as distinguished from an order, is final, and is
made at the hearing of the cause, whereas an order is in-
terlocutory, and is made on motion or petition. Wherever
an order may, in a certain event resulting from the direc-
tion contained in the order, lead to the termination of the
suit in like manner as a decree made at the hearing, it is
called a "decretal order." Brown.
A judgment at law, as distinguished from a decree in
equity, was either simply for the plaintiff or for the de-
fendant. There could be no qualifications or modifications.
But such a judgment does not always touch the true justice
of the cause or put the parties in the position they ought
to occupy. This result was attained by the decree of a
court of equity which could be so moulded, or the execu-
tion of which could be so controlled and suspended, that
the relative duties and rights of the parties could be se-
cured and enforced. Bisph.Eq. § 7.
The words "judgment" and "decree," however, are often
used synonymously; Finnell v. Finnell, 113 Okl. 269, 230
P. 912, 913; especially now that the Codes have abolished
the distinction between law and equity; Henderson v.
Arkansas, 71 Okl. 253, 176 P. 751, 753. But of the two
terms, "judgment" is the more • comprehensive, and in-
cludes "decree." Coleman v. Los Angeles County, 180 Cal.
714, 182 P. 440, 441.
Decision of an administrative board though based on
facts adduced on a hearing, Dal Maso v. Board of Com'rs
of Prince George's County, 182 Md. 200, 34 A.2d 464, 466, or
rescript from reviewing court are not decrees. City of
Boston v. Santosuosso, 308 Mass. 189, 31 N.E.2d 564, 568.
Classification
Decrees in equity are either final or interlocu-
tory. A final decree is one which fully and finally
disposes of the whole litigation, determining all
questions raised by the case, and leaving nothing
that requires further judicial action. Sawyer v.
White, 125 Me. 206, 132 A. 421, 422; Draper Corpo-
ration v. Stafford Co., C.C.A.Mass., 255 F. 554, 555;
Burgin v. Sugg, 210 Ala. 142, 97 So. 216, 2177 An
interlocutory decree is a provisional or prelimin-
ary decree, which is not final and does not deter-
mine the suit, but directs some further proceed-
ings preparatory to the final decree. It is a decree
pronounced for the purpose of ascertaining mat-
ter of law or fact preparatory to a final decree. 1
Barb. Ch. Pr. 326, 327; Wooster v. Handy, C.C.
N.Y., 23 F. 49, 56; Beebe v. Russell, 19 How. 283,
15 L.Ed. 668; Cornely v. Marckwald, 131 U.S. 159,
9 S.Ct. 744, 33 L.Ed. 117. Where something more
than the ministerial execution of the decree as
rendered is left to be clone, the decree is interlocu-
tory, and not final, even though it settles the equi-
ties of the bill. Lodge v. Twell, 135 U.S. 232, 10
S.Ct. 745, 34 L.Ed. 153.. The difficulty of exact
definition is mentioned in McGourkey v. Ry. Co.,
146 U.S. 536, 13 S.Ct. 170, 36 L.Ed. 1079. See, also,
Keystone Manganese & Iron Co. v. Martin, 132 U.
S. 91, 10 S.Ct. 32, 33 L.Ed. 275; Leyhe v. McNam-
ara, Tex.Com.App., 243 S.W. 1074, 1076.
In French Law
Certain acts of the Legislature or of the sover-
eign which have the force of law are called "de-
crees"; as the Berlin and Milan decrees.
In Scotch Law
A final judgment or sentence of court by which
the question at issue between the parties is de-
cided.
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In General
Consent decree. One entered by consent of the
parties; it is not properly a judicial sentence, but
is in the nature of a solemn contract or agreement
of the parties, made under the sanction of the
court, and in effect an admission by them that the
decree is a just determination of their rights upon
the real facts of the case, if such facts had been
proved. Allen v. Richardson, 9 Rich.Eq., S.C., 53;
Schmidt v. Mining Co., 28 Or. 9, 40 P. 1014, 52 Am.
St.Rep. 759; Hodgson v. Vroom, C.C.A.N.Y., 266
F. 267, 268; Barnes v. American Fertilizer Co.,
144 Va. 692, 130 S.E. 902, 911. It binds only the
consenting parties; Myllius v. Smith, 53 W.Va.
173, 44 S.E. 542; and is not binding upon the
court; Ex parte Loung June, D.C.N.Y., 160 F.
251, 259. Parties thereto must be competent to
contract. Consaer v. Wisniewski, 293 Ill.App.
529, 13 N.E.2d 93, 94.
Decree dative. In Scotch law. An order of a
probate court appointing an administrator.
Decree nisi. A provisional decree, which will be
made absolute on motion unless cause be shown
against it. In English practice, it is the order
made by the court for divorce, on satisfactory
proof being given in support of a petition for dis-
solution of marriage; it remains imperfect for
at least six months, (which period may be short-
ened by the court down to three,) and then, unless
sufficient cause be shown, it is made absolute on
motion, and the dissolution takes effect, subject
to appeal. Wharton. It effects a conditional di-
vorce, becoming absolute only upon the happen-
ing of a prescribed contingency. Grant v. Grant,
84 N.J.Eq. 81, 92 A. 791, 793.
Decree of constitution. In Scotch practice. A
decree by which a debt is ascertained. Bell. In
technical language, a decree which is requisite to
found a title in the person of the creditor, whether
that necessity arises from the death of the debtor
or of the creditor. Id.
Decree of distribution. An instrument by which
heirs receive property of a deceased; it is a final
determination of the parties to a proceeding.
Fischer v. Dolwig, 29 N.D. 561, 151 N:W. 431, 432;
In re Bradford's Estate, 128 N.J.Eq. 372, 16 A.2d
268, 270.
Decree of forthcoming. In Scotch law. A de-
cree made after an arrestment (q. v.) ordering
the debt to be paid or the effects of the debtor to
be delivered to the arresting creditor. Bell.
Decree of insolvency. One entered in a probate
court, declaring the estate in question to be in-
solvent, that is, that the assets are not sufficient
to pay the debts in full. Bush v. Coleman, 121 Ala.
548, 25 So. 569; Walker v. Newton, 85 Me. 458,
27 A. 347.
Decree of locality. In Scotch law. The decree
of a teind court allocating stipend upon different
heritors. It is equivalent to the apportionment of
a tithe rent-charge.
Decree of modification. In Scotch law. A de-
cree of the teind court modifying or fixing a
stipend.
Decree of nullity. One entered in a suit for the
annulment of a marriage, and adjudging the mar-
riage to have been null and void ab initio. See
Nullity.
Decree of registration. In Scotch law. A pro-
ceeding giving immediate execution to the credi-
tor; similar to a warrant of attorney to confess
judgment.
Decree pro confesso. One entered in a court of
equity in favor of the complainant where the de-
fendant has made no answer to the bill and its
allegations are consequently taken "as confessed."
Ohio Cent. R. Co. v. Central Trust Co., 133 U.S.
83, 10 S.Ct. 235, 33 L.Ed. 561; Equity Rules 16,
17, see Fed.Rules Civ.Proc. rules 6, 55, 28 U.S.C.A.;
Freem. Judg. § 11; 1 Dan.Ch.Pr. 5th Am. ed.
517, n. It is merely an admission of the allega-
tions of the bill well pleaded. Remington v. Bar-
ney, 35 R.I. 267, 86 A. 891, 892; Majure v. John-
son, 192 Miss. 810, 7 So.2d 545, 549.
Deficiency decree. In a mortgage foreclosure
suit, a decree for the balance of the indebtedness
after applying the proceeds of a sale of the mort-
gaged property to such indebtedness. Commercial
Bank of Ocala v. First Nat. Bank, 80 Fla. 685, 87
So. 315, 316.
For "Execution of decree," see Execution of
Judgment or Decree.
DECREET. In Scotch law. The final judgment
or sentence of a court.
DECREET ABSOLVITOR. A decree dismissing a
claim, or acquitting a defendant. 2 Kames, Eq.
367.
DECREET ARBITRAL. An award of arbitrators.
1 Kames, Eq. 312, 313; 2 Kames, Eq. 367.
DECREET COGNITION'S CAUSA. When a cred-
itor brings his action against the heir of his debtor
in order to constitute the debt against him and at-
tach the lands, and the heir appears and renounces
the succession, the court then pronounces a de-
cree cognitionis causd. Bell.
DECREET CONDEMNATOR. One where the
decision is in favor of the plaintiff. Ersk.Inst. 4,
3, 5.
DECREET OF VALUATION OF TEINDS. A sen-
tence of the court of sessions, (who are now in
the place of the commissioners for the valuation
of teinds,) determining the extent and value of
teinds. Bell.
DECREMENTUM MARIS. Lat. In old English
law. Decrease of the sea; the receding of the
sea from the land. Callis, Sewers, (53,) 65. See
Reliction.
DECREPIT. This term designates a person who
is disabled, incapable, or incompetent, either from
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DECRETA
physical or mental weakness or defects, whether
produced by age or other causes, to such an ex-
tent as to render the individual comparatively
helpless in a personal conflict with one possessed
of ordinary health and strength. Hall v. State, 16
Tex.App. 11, 49 Am.Rep. 824; Lutz v. State, 147
Tex.Cr.R. 236, 179 S.W.2d 979, 980. The term in-
cludes a blind man. Lewing v. State, 135 Tex.Cr.
R. 485, 121 S.W.2d 599, 600.
DECRETA. In the Roman law. Judicial sen-
tences given by the emperor as supreme judge.
Decreta conciliorum non ligant reges nostros.
Moore, 906. The decrees of councils bind not our
kings.
DECRETAL. The granting or denying of remedy
sought. State v. Reagan County Purchasing Co.,
Tex.Civ.App., 186 S.W.2d 128, 134.
DECRETAL ORDER. A preliminary order that
determines no question upon the merits and es-
tablishes no right. Electrical Research Products
v. Vitaphone Corporation, 20 Del.Ch. 417, 171 A.
738.
DECRETALES BONIFACH OCTAVI. A supple-
mental collection of the canon law, published by
Boniface VIII. in 1298, called, also, "Liber Sextus
Decretalium," (Sixth Book of the Decretals.)
DECRETALES GREGORII NONI. The decretals
of Gregory the Ninth. A collection of the laws of
the church, published by order of Gregory IX. in
1227. It is composed of five books, subdivided into
titles, and each title is divided into chapters.
They are cited by using an X, (or extra;) thus
"Cap. 8 X de Regulis Juris," etc.
DECRETALS. In ecclesiastical law. Letters of
the pope, written at the suit or instance of one or
more persons, determining some point or question
in ecclesiastical law, and possessing the force of
law, within the Roman Catholic Church. The de-
cretals form the second part of the body of canon
law.
This is also the title of the second of the two
great divisions of the canon law, the first being
called the "Decree," (decretum.)
DECRETO. In Spanish colonial law. An order
emanating from some superior tribunal, promul-
gated in the name and by the authority of the
sovereign, in relation to ecclesiastical matters.
Schm.Civil Law, 93, note.
DECRETUM.
In the Civil Law
A species of imperial constitution, being a judg-
ment or sentence given by the emperor upon hear-
ing of a cause (quod imperator cognoscens de-
crevit). Inst. 1, 2, 6.
In Canon Law
An ecclesiastical law, in contradistinction to a
secular law, (lex.) 1 Mackeld.Civil Law, p. 81,
§ 93, (Kaufmann's note.)
DECRETUM GRATIANI. Gratian's decree, or
decretum. A collection of ecclesiastical law in
three books or parts, made in the year 1151, by
Gratian, a Benedictine monk of Bologna, being
the oldest as well as the first in order of the col-
lections which together form the body of the Ro-
man canon law. 1 Bl.Comm. 82; 1 Reeve, Eng.
Law, 67.
DECROWNING. The act of depriving of a crown.
DECRY. To cry down; to deprive of credit. "The
king may at any time decry or cry down any coin
of the kingdom, and make it no longer current."
1 Bl.Comm. 278.
DECURIO. Lat. A decurion. In the provincial
administration of the Roman empire, the de-
curions were the chief men or official personages
of the large towns. Taken as a body, the de-
curions of a city were charged with the entire
control and administration of its internal affairs;
having powers both magisterial and legislative.
See 1 Spence, Eq.Jur. 54.
DEDBANA. In Saxon law. An actual homicide
or manslaughter.
DEDI. (Lat. I have given.) A word used in deeds
and other instruments of conveyance when such
instruments were made in Latin, and anciently
held to imply a warranty of title. Deakins v. Hol-
lis, 7 Gill & J., Md., 315.
DEDI ET CONCESSI. I have given and granted.
The operative words of conveyance in ancient
charters of feoffment, and deeds of gift and grant;
the English "given and granted" being still the
most proper, though not the essential, words by
which such conveyances are made. 2 Bl.Comm. 53,
316, 317; 1 Steph.Comm. 164, 177, 473, 474.
DEDICATE. To appropriate and set apart one's
private property to some public use; as to make a
private way public by acts evincing an intention
to do so.
DEDICATION. In real property law. An appro-
priation of land to some public use, made by the
owner, and accepted for such use by or on behalf
of the public. Harris v. City of St. Helens, 72
Or. 377, 143 P. 941, 943, Ann.Cas.1916D, 1073. A
deliberate appropriation of land by its owner for
any general and public uses, reserving to himself
no other rights than such as are compatible with
the full exercise and enjoyment of the public
uses to which the property has been devoted.
Longley v. City of Worcester, 304 Mass. 580, 24 N.
E.2d 533, 537; Consolidated Realty Co. v. Rich-
mond Hotel & Building Co., 253 Ky. 463, 69 S.W.2d
985. See Alden Coal Co. v. Challis, 200 Ill. 222,
65 N.E. 665 (streets in company owned village) ;
Du Pont v. Miller, 310 Ill. 140, 141 N.E. 423, 425
(artificial waterway) ; Western Union Telegraph
Co. v. Georgia R. & Banking Co., D.C.Ga., 227 F.
276, 285 (right of way for telegraph lines) ; Man-
ning v. House, 211 Ala. 570, 100 So. 772, 774; Me-
bane v. City of Wynne, 127 Ark. 364, 192 S.W. 221,
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DEDUCTIBLE
222. (Streets on platted land) ; Johnston v. Me-
dina Improvement Club, 10 Wash.2d 44, 116 P.2d
272, 277, (park and recreation purposes).
By Adverse User
A dedication may arise from an adverse exclu-
sive use by the public under a claim of right
with the knowledge, actual or imputed, and ac-
quiescence of the owner. Carpenter v. City of
St. Joseph, 263 Mo. 705, 174 S.W. 53, 56; Dickinson
v. Ruble, 211 Minn. 373, 1 N.W.2d 373, 374, 375;
Clark v. State, 25 Ala.App. 467, 140 So. 178, 179.
Tax Revenues
Statute dedicating certain tax revenues to hos-
pital to be remitted directly from Secretary of
State made a "dedication" rather than an "appro-
priation." State ex rel. Porterie v. Charity Hos-
pital of Louisiana at New Orleans, 182 La. 268, 161
So. 606.
Express Common-Law Dedication
An "express common-law dedication" is one
where the intent is expressly manifested, such
as by ordinary deeds, recorded plats not executed
pursuant to statute or defectively certified so as
not to constitute a statutory dedication. Board of
Com'rs of Garfield County v. Anderson, 167 Okl.
253, 29 P.2d 75, 78.
Express or Implied
A dedication may be express, as where the in-
tention to dedicate is expressly manifested by a
deed or an explicit oral or written declaration of
the owner, or some other explicit manifestation of
his purpose to devote the land to the public use.
An implied dedication may be shown by some act
or course of conduct on the part of the owner from
which a reasonable inference of intent may be
drawn, or which is inconsistent with any other
theory than that he intended a dedication. Hurley
v. West St. Paul, 83 Minn. 401, 86 N.W. 427; Por-
ter v. City of Stuttgart, 135 Ark. 48, 204 S.W. 607,
608; H. A. Hilmer Co. v. Behr, 264 Ill. 568, 106
N.E. 481, 486; Village of Benld v. Dorsey, 311 Ill.
192, 142 N.E. 563, 565; Illinois Cent. R. Co. v.
Bennett, C.C.A.Miss., 296 F. 436, 437; City of
Brownsville v. West, Tex.Civ.App., 149 S.W.2d
1034, 1037, 1038.
Common-Law or Statutory
A common-law dedication is one made as above
described, and may be either express or implied.
A statutory dedication is one made under and in
conformity with the provisions of a statute regu-
lating the subject, and is of course necessarily ex-
press. Poindexter v. Schaffner, Tex.Civ.App., 162
S.W. 22, 23; Kaufman v. City of Butte, 48 Mont.
400, 138 P. 770, 771; Neill v. City of Glendale, 106
Cal.App. 553, 289 P. 877, 879.
Where complete statutory dedication does not exist, sale
of lots by reference to plat constitutes common-law "dedi-
cation." Byam v. Kansas City Public Service Co., 328 Mo.
813, 41 S.W.2d 945, 949.
In Copyright Law
The first publication of a work, without having
secured a copyright, is a dedication of it to the
public; that having been done, any one may re-
publish it. Bartlett v. Crittenden, 5 McLean, 32,
Fed.Cas.No.1,076; Deward & Rich v. Bristol Sav-
ings & Loan Corporation, C.C.A.Va., 120 F.2d 537,
540 (partial publication).
Where copyrighted lectures were not delivered to the
general public, but only to paying audiences and classes,
they were not abandoned or dedicated to the public. Na-
tional Institute for Improvement of Memory v. Nutt, D.C.
Conn., 28 F.2d 132, 134.
DEDICATION-DAY. The feast of dedication of
churches, or rather the feast day of the saint and
patron of a church, which was celebrated not only
by the inhabitants of the place, but by those of
all the neighboring villages, who usually came
thither; and such assemblies were allowed as
lawful. It was usual for the people to feast and to
drink on those days. Cowell.
DEDIMUS ET CONCESSIMUS: (Lat. We have
given and granted.) Words used by the king, or
where there were more grantors than one, in-
stead of dedi et concessi.
DEDIMUS POTESTATEM. (We have given pow-
er.) In English practice. A writ or commission
issuing out of chancery, empowering the persons
named therein to perform certain acts, as to ad-
minister oaths to defendants in chancery and take
their answers, to administer oaths of office to jus-
tices of the peace, etc. 3 Bl.Comm. 447. It was
anciently allowed for many purposes not now in
use, as to make an attorney, to take the acknowl-
edgment of a fine, etc.
In the United States, a commission to take tes-
timony is sometimes termed a "dedimus potesta-
tem." Buddicum v. Kirk, 3 Cranch, 293, 2 L.Ed.
444; Sergeant's Lessee v. Biddle, 4 Wheat. 508, 4
L.Ed. 627.
DEDIMUS POTESTATEM DE ATTORNO FACI-
ENDO. In old English practice. A writ, issued
by royal authority, empowering an attorney to
appear for a defendant. Prior to the statute of
Westminster 2, a party could not appear in court
by attorney without this writ.
DEDITION. The act of yielding up anything;
surrender.
DEDITITII. In Roman law. Criminals who had
been marked in the face or on the body with fire
or an iron, so that the mark could not be erased,
and subsequently manumitted. Calvin.
DEDUCTIBLE. That which may be taken away
or subtracted; an item which may be subtracted
from income for tax purposes, such as a deducti-
ble debt. In re Hermann's Estate, 349 Pa. 230,
36 A.2d 804, 806; a deductible expense. Pacific
Southwest Realty Co. v. McColgan, 53 Cal.App.
2d 549, 128 P.2d 86, 87, or; a deductible loss. Hel-
vering v. Gordon, C.C.A.4, 134 F.2d 685, 689; Bick-
erstaff v. Commissioner of Internal Revenue, C.C.
A.Ga., 128 F.2d 366, 367.
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DEDUCTION
DEDUCTION. That which is deducted; the part
taken away; abatement; as a deduction from the
yearly rent. Don Lee, Inc., v. United States, D.C.
Cal., 42 F.Supp. 884, 885; Pittsburgh Brewing Co.
v. Commissioner of Internal Revenue, C.C.A.3, 107
F.2d 155, 156.
In Probate Law
By "deduction" is understood a portion or thing
which an heir has a right to take from the mass
of the succession before any partition takes place.
Civil Code La. art. 1358.
Taxation
As used in Internal Revenue Code, relating to
tax on corporations, "deduction" refers to items
which may be subtracted from a corporation's
gross income in arriving at net income. McKesson
& Robbins v. Walsh, 130 Conn. 460, 35 A.2d 865.
An amount refunded by corporation to federal govern-
ment under Renegotiation Act as excess profits from war
contracts is not a "deduction" from corporation's gross in-
come subject to state taxation, but must be considered in
determining corporation's true gross income. Southern
Weaving Co. v. Query, 206 S.C. 307, 34 S.E.2d 51, 54.
Trial
Argument of counsel based on the evidence is
not improper as unsworn testimony, but is war-
ranted as a "deduction" from the testimony.
Texas & P. R. Co. v. Smith, Tex.Civ.App., 115 S.
W.2d 1238, 1242.
DEDUCTION FOR NEW. In marine insurance.
An allowance or drawback credited to the insur-
ers on the cost of repairing a vessel for damage
arising from the perils of the sea insured against.
This allowance is usually one-third, and is made
on the theory that the parts restored with new
materials are better, in that proportion than they
were before the damage.
DEED. A conveyance of realty, a writing signed
by grantor, whereby title . to realty is transferred
from one to another. National Fire Ins. Co. v.
Patterson, 170 Okl. 593, 41 P.2d 645, 647; Mitchell
v. Nicholson, 71 N.D. 521, 3 N.W.2d 83, 85, 139
A.L.R. 1175.
In order that an instrument may be operative as a
"deed," it must pass a present interest, although it is not
necessary that grantee take a present estate in property
conveyed. Blair v. Blair, 111 Vt. 53, 10 A.2d 188, 189.
The term is also used as synonymous with
"fact," "actuality," or "act of parties." Thus a
thing "in deed" is one that has been really or ex-
pressly done; as opposed to "in law," which means
that it is merely implied or presumed to have been
done. Powell v. Powell, 196 Ga. 694, 27 S.E.2d
393, 396, 397.
At Common Law
At common law, a sealed instrument, containing
a contract or covenant, delivered by the party to
be bound thereby, and accepted by the party to
whom the contract or covenant runs. Co. Litt.
171; 2 Bl.Comm. 295; Shepp. Touchst. 50. A writ-
ing containing a contract sealed and delivered.
3 Washb. Real Prop. 239; Sanders v. Riedinger,
30 App.Div, 277, 284, 51 N.Y.S. 937, 942. An in-
strument in writing, upon paper or parchment,
between parties able to contract, subscribed, seal-
ed, and delivered. 4 Kent, Comm. 452; Interstate
R. Co. v. Roberts, 127 Va. 688, 105 S.E. 463, 464.
There is authority, however, that signing is un-
necessary to validity of deed. Bowling v. Wil-
kerson, D.C.Ky., 19 F.Supp. 584, 587.
A writing under seal by which lands, tenements,
or hereditaments are conveyed for an estate not
less than freehold. 2 Bl.Comm, 294.
A dded implies, at common law, a sealed instru-
ment. 2 Bl.Comm. 295; Rondot v. Rogers Tp., 39
C.C.A. 462, 99 F. 202, 209; Strain v. Fitzgerald, 128
N.C. 396, 38 S.E. 929, 930; Williams v. State, 25
Fla. 734, 6 So. 831, 832, 6 L.R.A. 821; e. g., a bond
is a deed for the reason that it is sealed by the
obligor. In re Contest of Election of Burns, 315
Pa. 23, 171 A. 888, 889. But the term Is also applied
to similar instruments, not under seal, executed
in jurisdictions in which the use of seals is un-
known (see Steigenberger v. Carr, 3 M. & G., 191,
199, 42 ECL 107, 133 Reprint. 1111), or in which
seals have been rendered unnecessary by statute.
See Henderson v. Howard, 147 Ga. 371, 94 S.E.
251; Gibbs v. McGuire, 70 Miss. 646, 12 So. 829.
Modern Rule
A written instrument, signed, sealed, and deliv-
ered, by which one person conveys land, tene-
ments, or hereditaments to another. This is its
ordinary modern meaning, at least in those juris-
dictions which adhere to the common-law rule
making a seal essential to the validity and opera-
tive effect of a deed of conveyance. McMee v
Henry, 163 Ky. 729, 174 S.W. 746, 747; Dunham v.
Marsh, 52 N.J.Eq. 256, 30 A. 473, 474; Hood v.
Fletcher, 31 Ariz. 456, 254 P. 223, 224.
The term may include a mortgage of real estate. Lock-
ridge v. McCommon, 90 Tex. 234, 38 S.W. 33, 35 (citing
Hellman v. Howard, 44 Cal. 110) ; Daly v. Minnesota Loan.
& Investment Co., 43 Minn. 517, 45 N.W. 1100, 1101; Mor-
gan v. Wickliffe, 115 Ky. 226, 72 S. W. 1122. But, contra,
see Eaton v. White, 18 Wis. 517, 519; National Bank of
Columbus v. Tennessee Coal, Iron & Railroad Co., 62 Ohio
St. 564, 57 N.E. 450. Similarly a lease for years under seal
may be a deed. Hutchinson v. Bramhall, 42 N.J.Eq. 372, 7
A. 873, 875. And a lease exceeding twenty-one years is
held to be within the term. St. Vincent's Roman Catholic
Congregation of Plymouth v. Kingston Coal Co., 221 Pa.
349, 70 A. 838, 839. But a stipulation for a deed prohibit-
ing drilling for oil or gas was held not to include a lease.
Test Oil Co. v. La Tourette, 19 Old. 214, 91 P. 1025, 1029.
The essential difference between a "deed" and a "will"
is that the former passes a present interest and the latter
passes no interest until after the death of the maker.
Willis v. Fiveash, Tex.Civ.App., 297 S.W. 509, 510; Harber
v. Harber, 152 Ga. 98, 108 S.E. 526; Henderson v. Hender-
son, 210 Ala. 73, 97 So. 353, 372; Bowdoin College v. Mer-
ritt, C.C.Cal., 75 F. 480, 483. A will is "an instrument by
which a person makes a disposition of his property to take
effect after his decease, which is in its own nature ambula-
tory and revocable thir`ing his life. It is this ambulatory
quality which form's the characteristic of wills; for, though,
a disposition by deed may postpone the possession or en-
joyment, or even the vesting, until the death of the dis-
posing party, yet the postponement is in such case pro-
duced by the express terms, and does not result from the
nature of the instrument." In re Hall's Estate, 149 Cal.
143, 84 P. 839, 840; Robb v. Washington & Jefferson Col-
lege, 185 N.Y. 485, 78 N.E. 359, 361 (quoting and adopting
definition in Jarman, Wills, p. 17). The main test, how-
ever, whether a writing is a will or deed, is the animus
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DEED, ESTOPPEL BY
testandi. Belgrade v. Carter, Tex.Civ.App., 146 S.W. 964,
965; McLain v. Garrison, 39 Tex.Civ.App. 431, 88 S.W. 484,
89 S.W. 284 (citing Gillham v. Mustin, 42 Ala. 366; Tra-
wick v. Davis, 85 Ala. 345, 5 So. 83) ; Ecklar's Adm'r v.
Robinson, 96 S. W. 845, 846, 29 Ky.Law Rep. 1038. Harber
v. Harber, 152 Ga. 98, 108 S.E. 520. "Deeds" are irrevoca-
ble and take effect by delivery, while "wills" are always
revocable during testamentary capacity and take effect
only after testator's death. Self v. Self, 212 Ala. 512, 103
So. 591, 592. If a document cannot be revoked or impaired
by the grantor, it is a "deed," but if the grantor recites
an unqualified power of revocation, it is a "will." Craft v.
Moon, 201 Ala. 11, 75 So. 302, 303. An instrument purport-
ing to convey title to lands on its delivery is a deed and
not a will, though possession be deferred until the gran-
tor's death. Lovenskoild v. Casas, Tex.Civ.App., 196 S.W.
629, 631.
A deed is distinguished from a contract in that a deed
is a mere transfer of title to realty, and is the act of but
one of the parties, made pursuant to a previous contract
either in parol or in writing. Collins v. Lyon, Inc., 181 Va.
230, 24 S.E.2d 572, 579. Accordingly; want of considera-
tion of itself will not warrant setting aside a deed, though
want of consideration would be good defense to an execu-
tory contract. Lawson v. Boo, 227 Iowa 100, 287 N.W. 282,
284. However, a deed is a contract, for the purpose of
reformation in equity to make it truly speak the legally
ascertained intention of the parties. Sawyer Coal & Ice
Co. v. Kinnett-Odom Co., 192 Ga. 166, 14 S.E.2d 879, 883.
Deed for a nominal sum. In effect the same as
a deed of gift. Bertelsen v. Bertelson, 49 Cal.App.
2d 479, 122 P.2d 130, 133.
Deed in fee. A deed conveying the title to land
in fee simple with the usual covenants. Rudd v.
Savelli, 44 Ark. 152; Moody v. Spokane & U. H.
St. Ry. Co., 5 Wash. 699, 32 P. 751.
Deed indented, or indenture. In conveyancing.
A deed executed or purporting to be executed in
parts, between two or more parties, and distin-
guished by having the edge of the paper or parch-
ment on which it is written indented or cut at the
top in a particular manner. This was formerly
done at the top or side, in a line resembling the
teeth of a saw; a formality derived from the an-
cient practice of dividing chirographs; but the cut-
ting is now made either in a waving line, or more
commonly by notching or nicking the paper at the
edge. 2 Bl.Comm. 295, 296; Litt. § 370; Smith,
Cont. 12.
Deed of covenant. Covenants are sometimes
entered into by a separate deed, for title, or for the
indemnity of a purchaser or mortgagee, or for
the production of title-deeds. A covenant with a
penalty is sometimes taken for the payment of
a debt, instead of a bond with a condition, but the
legal remedy is the same in either case.
Deed of gift. A deed executed and delivered
without consideration.
Thus a conveyance to church mission board for
which board agreed to educate a relative of gran-
tors for the ministry should grantors die before
his education was completed, was not a strict
"deed of gift". Forbes v. Board of Missions of M.
E. Church, South, 17 Ca1.2d 332, 110 P.2d 3, 7.
Deed of release. One releasing property from
the incumbrance of a mortgage or similar pledge
upon payment or performance of the conditions;
more specifically, where a deed of trust to one or
more trustees has been executed, pledging real
property for the payment of a debt or the per-
formance of other conditions, substantially as in
the case of a mortgage, a deed of release is the
conveyance executed by the trustees, after pay-
ment or performance, for the purpose of divesting
themselves of the legal title and revesting it in
the original owner. See Swain v. McMillan, 30
Mont. 433, 76 Pac. 943.
Deed of separation. An instrument by which,
through the medium of some third person acting
as trustee, provision is made by a husband for
separation from his wife and for her separate
maintenance. Whitney v. Whitney, 15 Misc. 72,
36 N.Y.S. 891, 892.
Deed of settlement. A deed formerly used in
England for the formation of joint stock com-
panies constituting certain persons trustees of the
partnership property and containing regulations
for the management of its private affairs. They
are now regulated by articles of association.
Deed of trust. An instrument in use in many
states, taking the place and serving the uses of a
common-law mortgage, by which the legal title to
real property is placed in one or more trustees, to
secure the repayment of a sum of money or the
performance of other conditions. Bank v. Pierce,
144 Cal. 434, 77 P. 1012; In re Sherman, D.C.Va.,
12 F.Supp. 297, 298, 299. Though differing in form
from mortgage, it is essentially a security. Bank
of America Nat. Trust & Savings Ass'n v. Bank
of Amador County, 135 Cal.App. 714, 28 P.2d 86,
88. In re Title Guaranty Trust Co., Mo.App., 113
S.W.2d 1053, 1057. See Trust Deed.
Deed poll. A deed which is made by one party
only. See Hawkins v. Corbit, 83 Okl. 275, 201 P.
649, 653. A deed in which only the party making
it executes it or binds himself by it as a deed. 3
Washb. R. P. 311. It was originally so called be-
cause the edge of the paper or parchment was
polled or cut in a straight line, wherein it was
distinguished from a deed indented or indenture.
As to a special use of this term in Pennsylvania in
colonial times, see Herron v. Dater, 120 U.S. 464,
7 S.Ct. 620, 624, 30 L.Ed. 748 (citing Evans v.
Patterson, 71 U.S. 224, 4 Wall. 224, 18 L.Ed. 393).
Deed to lead uses. A deed made before a fine
or common recovery, to show the object thereof.
As to "execution of deed," see Execution of In-
strument.
Gratuitous deed. One made without considera-
tion. 2 Steph.Com. 47. As to "Quitclaim" deed,
"Tax" deed, "Trust" deed, and "Warranty" deed,
see those titles.
DEED, ESTOPPEL BY. Such as arises from the
provisions of a deed. Erickson v. Wiper, 33 N.D.
193, 157 N.W. 592, 598; Green v. Clark, 13 Vt. 158;
Reinhard v. Virginia Lead Min. Co., 107 Mo. 616,
18 S.W. 17, 28 Am.St.Rep. 441.
A preclusion against the competent parties to a valid
sealed contract and their privies to deny its force and ef-
fect by any evidence of inferior solemnity. Hart v. Ana-
conda Copper Mining Co., 69 Mont. 354, 222 P. 419, 421.
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DEED, ESTOPPEL BY
Such an estoppel occurs where a party has executed a
deed, that. is, a writing under seal (as a bond) reciting a
certain fact, and is thereby precluded from afterwards
denying, in any action brought upon that instrument, the
fact so recited. Steph,P1. 197. A man shall always be
estopped by his own deed, or not permitted to aver or
prove anything in contradiction to what he has once so
solemnly and deliberately avowed. 2 Bl.Comm. 295; Plowd.
434; Hudson v. Winslow Tp., 35 N.J.Law, 441; Taggart
v. Risley, 4 Or. 242; Appeal of Waters, 35 Pa. 526, 78 Am.
Dec. 354.
A warranty deed by one having only a contingent re-
mainder passes title, by way of "estoppel" to grantee, as
soon as remainder vests by happening of contingency.
Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485, 488.
"Estoppel by deed" is a bar precluding party from deny-
ing truth of his deed. Talley v. Howsley, Tex.Civ.App.,
170 S.W.2d 240, 243. It is limited to an action founded on
the deed itself. Hughes v. Cobb, 195 Ga. 213, 23 S.E.2d 701,
715. It applies to the maker of the deed, and does not
ordinarily apply to the grantee. Hughes v. Cobb, 195 Ga.
213, 23 S.E.2d 701, 715. It arises only when suit is on the
deed or concerning a right arising out of the deed and be-
tween parties or privies to the deed. Robert v. O'Connell,
269 Mass. 532, 169 N.E. 487, 488. It arises only where there
is express representation as to ownership, title % or interest
in question, or where there are express warranties thereto.
Petition of Testan, 156 Misc. 449, 281 N.Y.S. 96. It cannot
be invoked by one through whose imposition a statement
was inserted in the deed. Capitol Nat. Bank & Trust Co. v.
David B. Roberts, Inc., 129 Conn. 194, 27 A.2d 116, 119, 141
A.L.R. 1179. It precludes a party thereto and his privies
as against other party and his privies. Sammons v. Brun-
son, Tex.Civ.App., 25 S.W.2d 685, 688.
A distinct and precise assertion or admission of fact is
necessary. Cook v. Farley, 195 Miss. 638, 15 So.2d 352, 357.
Inducement to change course to one's disadvantage is
essential. Funderburk v. Magnolia Sugar Co-op., La.App.,
8 So.2d 374, 377.
The effect of doctrine is same as if in deed itself, there
had been inserted express provision that it conveyed not
only all title then possessed but all that might there-
after be acquired. Meyers v. American Oil Co., 192 Miss.
180, 5 So.2d 218, 220.
DEEM. To hold; consider; adjudge; condemn;
determine; treat as if; construe. Douglas v.
Edwards, C.C.A.N.Y., 298 F. 229, 237; In re
Schmidt's Estate, 134 Wash. 525, 236 P. 274, 275;
In re Green's Estate, 99 Misc. 582, 164 N.Y.S. 1063,
1083; Harder v. Irwin, D.C.N.Y., 285 F. 402, 404;
First Nat. Bank v. Dodd, 118 Or. 1, 245 P. 503, 504.
But see Kleppe v. Odin Tp., McHenry County, 40
N.D. 595, 169 N.W. 313, 314, which gives "deemed"
the force of only a "disputable presumption," or
of prima facie evidence. When, by statute, cer-
tain acts are "deemed" to be a crime of a par-
ticular nature, they are such crime, and not a
semblance of it, nor a mere fanciful approxima-
tion to or designation of the offense. Com. v.
Pratt, 132 Mass. 247; Commonwealth v. Brue, 284
Pa. 294, 131 A. 367, 368.
DEEMSTERS. Judges in the Isle of Man, who
decide all controversies without process, writings,
or any charges. These judges are chosen by the
people, and are said by Spelman to be two in num-
ber. Spelman.
DEER-FALD. A park or fold for deer.
DEER-HAYES. Engines or great nets made of
cord to catch deer. 19 Hen. VIII, c. 11.
DEFACE. To mar or destroy the face (that is,
the physical appearance of written or inscribed
characters as expressive of a definite meaning) of
a written instrument, signature, inscription, etc.,
by obliteration, erasure, cancellation, or superin-
scription, so as to render it illegible or unrecogniz-
able. Linney v. State, 6 Tex. 1, 55 Am.Dec. 756.
See Cancel. In re Parsons' Will, 195 N.Y.S. 742,
745, 119 Misc. 26. Also used in respect of injury
to monument, buildings and other structures. Saf-
fell v. State, 113 Ark. 97, 167 S.W. 483. So, to de-
face the flag carries the meaning of dishonor,
which imputes a lively sense of shaming or an
equivalent acquiescent callousness. State v.
Schlueter, 127 N.J.L. 496, 23 A.2d 249, 251,
DE FACTO. In fact; actually; indeed; in reality.
Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 257,
71 A.L.R. 830. Thus, an office, position or status
existing under a claim or color of right such as a
deputy county clerk. Heron v. Gaylor, 49 N.M. 62,
157 P.2d 239, 241; deputy clerk of court. State
v. Brandon, 186 S.C. 448, 197 S.E. 113, 115; cor-
porate office. In re Hillmark Associates, D.C.N.
Y., 47 F.Supp. 605, 606; corporation, Municipal
Bond & Mortgage Corporation v. Bishop's Harbor
Drainage Dist., 133 Fla. 430, 182 So. 794, 797;
Ebeling v. Independent Rural Telephone Co., 187
Minn. 604, 246 N.W. 373; court, Marckel Co. v.
Zitzow, 218 Minn. 305, 15 N.W.2d 777, 778; de-
positary, School Dist. No. 1, Itasco County, v. Af-
ton, 173 Minn. 428, 217 N.W. 496, 499; deputy sher-
iff, Malone v. Howell, 140 Fla. 693, 192 So. 224,
227; fire district commissioner, Petition of Board
of Fire Com'rs of Columbia-Litchfield Fire Dist,.
Sup., 29 N.Y.S.2d 605, 619; grand jury, McDonald
v. Colden, 181 Misc. 407, 41 N.Y.S.2d 323, 327;
guardian, State ex rel. Symons v. East Chicago
State Bank, 106 Ind.App. 4, 17 N.E.2d 491, 494;
judge, Annoni v. Bias Nadal's Heirs, C.C.A.Puerto
Rico, 94 F.2d 513, 515; officer, Eaker v. Common
School Dist. No. 73 of Butler County, Mo.App., 62
S.W.2d 778, 783; police officer, People ex ref.
Mitchell v. Armspach, 314 Ill.App. 573, 41 N.E.2d
781; trustee, In re Wohl's Estate, 36 N.Y.S.2d 926,.
930.
DE FACTO GOVERNMENT. One that maintains
itself by a display of force against the will of the
rightful legal government and is successful, at
least temporarily, in overturning the institutions
of the rightful legal government by setting up its
own in lieu thereof. Wortham v. Walker, 133
Tex. 255, 128 S.W.2d 1138, 1145.
DEFALCATION. The act of a defaulter; mis-
appropriation of trust funds or money held in any
fiduciary capacity; failure to properly account for
such funds. Usually spoken of officers of corpo-
rations or public officials. In re Butts, D.C.N.Y.,
120 F. 970; Crawford v. Burke, 201 Ill. 581, 66 N.E.
833.
Also set-off. The diminution of a debt or claim,
by deducting from it a smaller claim held by the
debtor or payor. Iron Works v. Cuppey, 41
Iowa, 104; Houk v. Foley, 2 Pen. & W., Pa., 250;
McDonald v. Lee, 12 La. 435.
Colloquially, perhaps, the worn "defalcation" ordinarily
implies some moral dereliction. As used in the Bankruptcy
Act, it may demand some portion of misconduct, but it is
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DEFEASANCE
not synonymous with "embezzlement." The act of a re-
ceiver in a mortgage foreclosure suit in withdrawing and
spending an amount allowed him by an order passing his
intermediate account without waiting for the time for ap-
peal to expire or consulting plaintiff as to whether it In-
tended to appeal, is a "defalcation". Central Hanover
Bank & Trust Co. v. Herbst, C.C.A.X.Y., 93 F.2d 510, 511,
512, 114 A.L.R. 769.
DEFALK. To set off one claim against another;
to deduct a debt due to one from a debt which
one owes. Johnson v. Signal Co., 57 N.J.Eq. 79, 40
A. 193; Burris v. Boone, 4 Boyce, Del., 148, 86 A.
730. This verb corresponds only to the second
meaning of "defalcation" as given above; a pub-
lic officer or trustee who misappropriates or em-
bezzles funds in his hands is not said to "defalk."
DEFAMACAST. Defamation by broadcast. Amer-
ican Broadcasting-Paramount Theatres, Inc. v.
Simpson, 126 S.E.2d 873, 879, 106 Ga.App. 230.
DEFAMATION. The taking from one's reputa-
tion. The offense of injuring 'a person's charac-
ter, fame, or reputation by false and malicious
statements. The term seems to include both libel
and slander. In general, see Shaw Cleaners & Dy-
ers v. Des Moines Dress Club, 215 Iowa, 1130, 245
N.W. 231, 86 A.L.R. 839; Snavely v. Booth, 6 W.
W.Harr. 378, 176 A. 649; Washer v. Bank of Amer-
ica Nat. Trust & Savings Ass'n, 128 P.2d 799. Li-
bel. Seested v. Post Printing & Publishing Co.,
326 Mo. 559, 31 S.W.2d 1045, 1052, Slander. Con-
nelly v. McKay, 176 Misc, 685, 28 N.Y.S.2d 327, 329.
The distinction between "criticism" and "defamation" is
that criticism deals only with such things as invite public
attention or call for public comment, and does not follow
a man into his private life, or pry into his domestic con-
cerns, and it never attacks the individual, but only his
work. Schwimmer v, Commercial Newspaper Co., 131 Misc.
552, 228 N.Y.S. 220, 221.
The fundamental difference between a right to "privacy"
and a right to freedom from "defamation" is that the
former directly concerns one's own peace of mind whereas
the latter concerns primarily one's reputation. Themo v.
New England Newspaper Pub. Co., 306 Mass. 54, 27 N.E.2d
753, 755.
DEFAMATORY. Calumnious; containing de-
famation; injurious to reputation; libelous;
slanderous; words which produce any perceptible
injury to the reputation of another. Sheridan V.
Davies, 139 Kan. 256, 31 P.2d 51, 54.
DEFAMATORY PER QUOD. In respect of
words: Those which require an allegation of facts,
aside from the words contained in the article, by
way of innuendo, to show wherein the words used
libel the plaintiff, in order to state a cause of ac-
tion in a complaint. Rowan v. Gazette Printing
Co., 74 Mont. 326, 239 P. 1035, 1037.
DEFAMATORY PER SE. In respect of words:
Those which by themselves, and as such, without
reference to extrinsic proof, injure the reputation
of the person to whom they are applied. Manley
v. Harer, 73 Mont. 253, 235 P. 757, 758; Conrad v.
Allis-Chalmers Mfg. Co., 228 Mo.App. 817, 73 S.
W.2d 438, 446.
DEFAMES. L. Fr, Infamous. Britt. c. 15.
DEFAULT. By its derivation, a failure. Mead-
ows v. Continental Assur. Co., C.C.A.Tex., 89 F.
2d 256. An omission of that which ought to be
done. Town of Milton v. Bruso, 111 Vt. 82, 10 A.
2d 203, 205. Specifically, the omission or failure
to perform a legal duty. Easterwood v. Willing-
ham, Tex.Civ.App., 47 S.W.2d 393, 395; to observe
a promise or discharge an obligation, Bradbury v.
Thomas, 27 P.2d 402, 135 Cal.App. 435; or to per-
form an agreement, Eastman v. Morgan, D.C.N.Y.,
43 F.Supp. 637, 641. The term also embraces the
idea of dishonesty, In re State, 210 Wis. 9, 245 N.
W. 844, 845, and of wrongful act, Greco v. S. S.
Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 562, 115
A.L.R. 1020; or an act or omission discreditable
to one's profession, Hilkert v. Canning, 58 Ariz.
290, 119 P.2d 233, 236,
In Practice
Omission; neglect or failure of any party to take
step required of him in progress of cause. Indi-
ana State Board of Medical Registration and
Examination v. Pickard, 93 Ind.App. 171, 177 N.E.
870, 872. When a defendant in an action at law
omits to plead within the time allowed him for
that purpose, or fails to appear on the trial, he is
said to make default, McCabe v. Tom, 35 Ohio
App. 73, 171 N.E. 868, 869, and the judgment en-
tered in the former case is technically called a
"judgment by default." 3 Bl.Comm. 396; 1 Tidd,
Pr. 562.
A "default" in an action at law is somewhat similar to
the entry of a decree in equity that the bill be taken for
confessed, neither being a final disposition. Felton v.
Felton, 128 Conn. 564, 196 A. 791, 793.
In General
Default of issue. Failure to have living chil-
dren or descendants at a given time or fixed point.
George v. Morgan, 16 Pa. 106; In re Van Cleef,
92 Misc. 689, 157 N.Y.S. 549, 551.
Defaulter. One who makes default. One who
misappropriates money held by him in an official
or fiduciary character, or fails to account for such
money.
Judgment by default. See Judgment.
DEFEASANCE. An instrument which defeats
the force or operation of some other deed or es-
tate. That which is in the same deed is called a
"condition"; and that which is in another deed is
a "defeasance." Com. Dig. "Defeasance." Bein-
dorf v. Thorpe, 90 Okl. 191, 203 P. 475, 477; In re
A. Roth Co., C.C.A.I11., 118 F.2d 156, 158.
A "defeasance" is a collateral deed made at the same
time as a feoffment or other conveyance, containing certain
conditions upon the performance of which the estate then
created may be defeated or totally undone. Bach v. First
Nat. Bank, 99 Ind.App. 590, 193 N.E. 696, 697.
In Conveyancing
A collateral deed made at the same time with a
feoffment or other conveyance, containing certain
conditions, upon the performance of which th'
estate then created may be defeated or totally un-
done. 2 Bl.Comm. 327; Co. Litt. 236, 237.
An instrument accompanying a bond, recogniz-
ance, or judgment, containing a condition which,
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DEFEASIBLE
when performed, defeats or undoes it. 2 Bl.
Comm. 342; Miller v. Quick, 158 Mo. 495, 59 S.W.
955.
DEFEASIBLE. Subject to be defeated, annulled,
revoked, or undone upon the happening of a future
event or the performance of a condition subse-
quent, or by a conditional limitation. Usually
spoken of estates and interests in land. For in-
stance, a mortgagee's estate is defeasible (liable
to be defeated) by the mortgagor's equity of re-
demption. Penick v. Atkinson, 139 Ga. 649, 77 S.E.
1055, 1057, 46 L.R.A.,N.S., 284; Murphy v. Mur-
phy, 182 Ky. 731, 207 S.W. 491, 493.
DEFEASIBLE FEE. An estate in fee that is li-
able to be defeated by some future contingency;
e. g., a vested remainder which might be defeated
by the death of the remainderman before the time
fixed for the taking effect of the devise. Giltner's
Trustee v. Talbott, 253 Ky. 474, 69 S.W.2d 981;
Daly v. Pate, 210 N.C. 222, 186 S.E. 348, 349.
DEFEASIBLE TITLE. One that is liable to be
annulled or made void, but not one that is already
void or an absolute nullity. Elder v. Schumacher,
18 Colo. 433, 33 P. 175.
DEFEASIVE. Describes counterclaim which, if
it prevails, will defeat right of plaintiffs to recover.
Hayden v. Collins, 90 Utah, 238, 63 P.2d 223, 225.
DEFEAT. To prevent, frustrate, or circumvent;
as in the phrase "hinder, delay, or defeat credi-
tors." Coleman v. Walker, 3 Mete., Ky., 65, 77
Am.Dec. 163; Reuff-Griffin Decorating Co. v.
Wilkes, 191 S.W. 443, 446, 173 Ky. 566.
To overcome or prevail against in any contest;
as in speaking of the "defeated party" in an action
at law. Wood v. Bailey, 21 Wall. 642, 22 L.Ed.
689. Or "defeated candidate" in an election. Nor-
cop v. Jordan, 216 Cal. 764, 17 P.2d 123, 124.
To annul, undo, or terminate; as, a title or es-
tate. See Defeasible.
DEFECT. The want or absence of some legal
requisite; deficiency; imperfection; insufficiency.
Sappenfield v. National Zinc Co., 94 Kan. 22, 145
P. 862, 863; Galloway v. City of Winchester, 299
Ky. 87, 184 S.W.2d 890, 892, 893. The want or ab-
sence of something necessary for completeness
or perfection; a lack or absence of something es-
sential to completeness; a deficiency in some-
thing essential to the proper use for the purpose
for which a thing is to be used. Roberts v. Rog-
ers, 129 Neb. 298, 261 N.W. 354; Terrell v. City
of Orangeburg, 176 S.C. 518, 180 S.E. 670.
Thus, a bamboo vaulting pole which was not straight
and was unbalanced had a "defect." McCormick v. Lowe
& Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.
2d 866, 876.
DEFECT IN HIGHWAY OR STREET. Ordinar-
ily anything in the condition or state of highway
or street that renders it unreasonably safe for
travel. Payne v. State Highway Commission, 136
Kan. 561, 16 P.2d 509, 511. Thus courts have held
as highway or street defects corrugations, Chen-
ey v. State Highway Commission, 142 Kan. 149, 45
P.2d 864, 866; spike in cross walk, Fay v. City of
Green Bay, 240 Wis. 36, 1 N.W.2d 767, 768, a hol-
low, Adams v. Town of Bolton, 297 Mass. 459, 9
N.E.2d 562, 111 A.L.R. 856, and anything that may
reasonably be expected to interfere with safe use
of sidewalk by pedestrian. City of Birmingham
v. Wood, 240 Ala. 138, 197 So. 885, 887.
DEFECT IN MACHINERY. Under Code 1907,
§ 3910, subd. 1, making the master liable for in-
jury from defects in the condition of works or
machinery, it is essential that there be inherent
condition of a permanent nature which unfits
machine for its uses, some weakness of construc-
tion with reference to the proposed uses, some
misplacement of parts, or the absence of some
part, some innate abnormal quality rendering
its use dangerous, or some obstacle to the use
or the way of use which is part of the condition
of the machinery itself. Caldwell-Watson Foun-
dry & Machine Co. v. Watson, 183 Ala. 326, 62 So.
859, 862.
DEFECT OF FORM. An imperfection in the
style, manner, arrangement, or non-essential
parts of a legal instrument, plea, indictment, etc.,
as distinguished from a "defect of substance."
See infra.
DEFECT OF PARTIES. In pleading and practice.
Insufficiency of the parties before a court in any
given proceeding to give it jurisdiction and author-
ity to decide the controversy, arising from the
omission or failure to join plaintiffs or defendants
who should have been brought in; never applied
to a superfluity of parties or the improper addi-
tion of plaintiffs or defendants. Porter Const.
Co. v. Berry, 136 Or. 80, 298 P. 179, 182; Salisbury
v. Berry Motor Co., 122 Neb. 605, 241 N.W. 86, 87;
De Pass v. City of Spartanburg, 190 S.C. 22, 1
S.E.2d 904, 908. It is not synonymous with "mis-
joinder of parties". Okmulgee Supply Co. v. Rot-
man, 144 Okl. 293, 291 P. 1, 2.
DEFECT OF SUBSTANCE. An imperfection in
the body or substantive part of a legal instru-
ment, plea, indictment, etc., consisting in the
omission of something which is essential to be
set forth. Sweeney v. Greenwood Index-Journal
Co., D.C.S.C., 37 F.Supp. 484, 487.
DEFECTIVE. Lacking in some particular which
is essential to the completeness, legal sufficiency,
or security of the object spoken of; as a "de-
fective" highway or bridge (Mennito v. Town
of Wayland, Sup., 56 N.Y.S.2d 654, 664; Warren
County v. Battle, 48 Ga.App. 240, 172 S.E. 673,
674) ; car coupler (McAllister v. St. Louis Mer-
chants' Bridge Terminal Ry. Co., 324 Mo. 1005,
25 S.W.2d 791, 795) ; machinery (Riccio v. Town of
Plainville, 106 Conn. 61, 136 A. 872, 873; Chaney v.
Village of Riverton, 104 Neb. 189, 177 N.W. 845,
846, 10 A.L.R. 244; Bryan v. City of West Palm
Beach, 75 Fla. 19, 77 So. 627) ; writ or recogni-
zance (State v. Lavalley, 9 Mo. 836; McArthur v.
Boynton, 19 Colo.App. 234, 74 P. 542) ; or title
(Copertini v. Oppermann, 76 Cal. 181, 18 P. 256) ;
service of process or return of service (Tioga Coal
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DEFENSE
Corporation v. Silman, 125 W.Va. 58, 22 S.E.2d
873, 876; State ex rel. Briggs v. Barns, 121 Fla.
857, 164 So. 539, 542).
DEFECTIVE OR INSUFFICIENT SPECIFICA-
TIONS BY PATENTEE. Any failure either to
describe or to claim the complete invention upon
which the application for patent is founded.
Robert v. Krementz, C.C.A.N.J., 243 F. 877, 881.
DEFECTIVE TITLE. With respect to negotiable
paper within Negotiable Instruments Law, the
title of a person who obtains instrument or any
signature thereto by fraud, duress, or force and
fear, or other unlawful means, or for an illegal
consideration, or when he negotiates it in breach
of faith or under such circumstances as amount
to fraud. Stevens v. Pierce, 79 Oki. 290, 193 P.
417, 18 A.L.R. 7; (fraud) German-American Nat.
Bank v. Kelley, 183 Iowa, 269, 166 N.W. 1053;
Commercial Security Co. v. Jack, 29 N.D. 67, 150
N.W. 460, 461.
DEFECTUS. Lat. Defect; default; want; im-
perfection; disqualification.
Challenge Propter Defectum
A challenge to a juror on account of some legal
disqualification, such as infancy, etc. See Chal-
lenge.
Defectus Sanguinis
Failure of the blood, i. e., failure or want of
issue.
DEFEND. To prohibit or forbid. To deny. To
contest and endeavor to defeat a claim or de-
mand made against one in a court of justice.
Boehmer v. Irrigation Dist., 117 Cal, 19, 48 P. 908.
To oppose, repel, or resist.
To protect, to shield, to make a stand for, or
uphold by force or argument, vindicate, to main-
tain or keep secure, to guaranty, to agree to in-
demnify. Powell v. U. S., D.C.Va., 60 F.Supp. 433,
439.
Although a contract between mortgagee and mortgagor's
creditor who purchased mortgaged automobile that creditor
will "defend" mortgagee against all suits, etc., was held
to be contract to defend litigation, not to indemnify. Hall
v. Cannon, 90 Colo. 465, 9 P.2d 1057.
DEFENDANT. The person defending or deny-
ing; the party against whom relief or recovery
is sought in an action or suit. Graham Bros. Ak-
tiebolag v. St. Paul Fire & Marine Ins. Co., 126
Misc. 32, 212 N.Y.S. 380, 381; Atlantic Mut. In-
surance Co. v. Alexandre, D.C.N.Y., 16 F. 279, 281;
Siekmann v. Kern, 136 La. 1068, 68 So. 128. See,
also, Ferguson v. Montgomery, 148 Ark. 83, 229
S.W. 30, 36 (election contest) ; Boyd v. Lambert,
58 Okl. 497, 160 P. 586, 587 (injunction bond) ;
Alexander v. United States, C.C.A.Mo., 95 F.2d
873, 879 (joinder); Welty v. Schmutte, 128 Neb.
415, 258 N.W. 873 (mortgage foreclosure) ; Loft,
Inc. v. Corn Products Refining Co., C.C.A.Ind., 103
F.2d 1, 5 (anti-trust prosecution).
Thus, railroads, on appeal by city to state district court
from order of Minnesota Railroad and Warehouse Commis-
sion requiring grade separation, were held defendants en-
titled to remove cause to federal court. In re Chicago, M.
St. P. & P. R. Co., D.C.Minn., 50 F.2d 430, 434.
In common usage, this term is applied to the party put
upon his defense, or summoned to answer a charge or com-
plaint, in any species of action, civil or criminal, at law or
in equity. Strictly, however, it does not apply to the per-
son against whom a real action is brought, for in that pro-
ceeding the technical usage is to call the parties respective-
ly the "demandant" and the "tenant."
Defendant in error. The distinctive term appro-
priate to the party against whom a writ of error
is sued out.
Principal defendant. One who has an interest
in the controversy presented by the bill, and
whose presence is requisite to the complete and
partial adjudication of the controversy. Bird v.
Sleppy, 265 Pa. 295, 108 A. 618, 619.
DEFENDARE. To answer for; to be responsible
for. Medley.
DEFENDEMUS. Lat. A word used in grants
and donations, which binds the donor and his
heirs to defend the donee, if any one go about to
lay any incumbrance on the thing given other
than what is contained in the deed of donation.
Bract. 1. 2, c. 16.
DEFENDER. (Fr.) To deny; to defend; to
conduct a suit for a defendant; to forbid; to
prevent; to protect.
In Scotch and canon law. A defendant.
DEFENDER OF THE FAITH. A peculiar title
belonging to the sovereign of England, as that of
"Catholic" to the king of Spain, and that of "Most
Christian" to the king of France. These titles
were originally given by the popes of Rome; and
that of Defensor Fidei was first conferred by
Pope Leo X. on King Henry VIII., as a reward
for writing against Martin Luther; and the bull
for it bears date quinto Idus Octob., 1521. Enc.
Lond,
DEFENDERE SE PER CORPUS SUUM. To of-
fer duel or combat as a legal trial and appeal.
Abolished by 59 Geo. III. § 46. See Battel.
DEFENDERE UNICA MANU. To wage law; a
denial of an accusation upon oath. See Wager
of Law.
DEFENDIT VIM ET INJURIAM. He defends
the force and injury. Pieta, lib. 5, c. 39, § 1.
DEFENDOUR. L. Fr. A defender or defendant;
the party accused in an appeal. Britt. c. 22.
DEFENERATION. The act of lending money on
usury.
DEFENSA. In old English law. A park or place
fenced in for deer, and defended as a property
and peculiar for that use and service. Cowell.
DEFENSE. That which is offered and alleged
by the party proceeded against in an action or
suit, as a reason in law or fact why the plaintiff
should not recover or establish what he seeks;
what is put forward to diminish plaintiff's cause
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DEFENSE
of action or defeat recovery. 'Etna Life Ins. Co.
v. Braukman, C.C.A.Colo., 70 F.2d 647, 649; Lind-
say v. State, Tex.Civ.App., 25 S.W.2d 1113, 1115.
More properly what is sufficient when offered for
this purpose. In either of these senses it may be
either a denial, justification, or confession and
avoidance of the facts averred as a ground of
action, or an exception to their sufficiency in
point of law. Whitfield v. Aetna Life Insurance
Co., C.C.Mo., 125 F. 270; Eagle Savings & Loan
Ass'n v. West, 71 Ohio App. 485, 50 N.E.2d 352,
356; Paillet v. Vroman, 52 Cal.App.2d 297, 126 P.
2d 419, 421; (challenge to jurisdiction) Trades-
mens Nat. Bank & Trust Co. v. Charlton Steam
Shipping Co., D.C.Pa., 3 F.R.D. 363, 364; (denial)
Levine v. Behn, 282 N.Y. 120, 25 N.E.2d 871, 873;
(legal insufficiency) Dysart v. Remington Rand,
D.C.Conn., 31 F.Supp. 296, 297; (payment) Hoad-
ley v. W. T. Rawleigh Co., 112 Ind.App. 563, 44 N.
E.2d 231, 232; (statute of limitations) Waggoner
v. Feeney, 220 Ind. 543, 44 N.E.2d 499, 502.
In a stricter sense, defense is used to denote
the answer made by the defendant to the plain-
tiff's action, by demurrer or plea at law or an-
swer in equity. This is the meaning of the term
in Scotch law. Ersk. Inst. 4, 1, 66. However, it
has been held that the filing of a demurrer is not
the making of a defense within meaning of the
statute providing that, if no defense be made,
the plaintiff cannot have judgment for any relief
not specifically demanded, but, if defense be made,
he may have judgment for other relief, under a
prayer therefor. Union Light, Heat & Power Co.
v. City of Bellevue, 284 Ky. 405, 144 S.W.2d 1046,
1047.
Half defense was that which was made by the form "de-
fends the force and injury, and says," (defendit vim et in-
juriam, et dicit.)
Full defense was that which was made by . the form "de-
fends the force and injury when and where it shall behoove
him, and the damages, and whatever else he ought to de-
fend," (defendit vim et injuriam quando et ubi curia con-
sideravit, et damna et quicquid quod ipse defendere debet,
et dicit,) commonly shortened into "defends the force and
injury when," etc. Gi1b.Com.P1. 188; 8 Term, 632; 3 Bos.
& P. 9, note; Co.Litt. 127b.
In matrimonial suits, in England, defenses are divided
into absolute, i. e., such as, being established to the satis-
faction of the court, are a complete answer to the petition,
so that the court can exercise no discretion, but is bound
to dismiss the petition; and discretionary, or such as, be-
ing established, leave to the court a discretion whether it
will pronounce a decree or dismiss the petition. Thus, in
a suit for dissolution, condonation is an absolute, adultery
by the petitioner a discretionary, defense. Browne, Div.
30.
Defense is not something by means of which
party who interposes it can obtain relief for him-
self. Crisman v. Corbin, 169 Or. 332, 128 P.2d
959, 964.
Defense, as respects right to counsel to conduct
defense of one charged with crime, includes every
step in proceedings from time of arraignment until
acquittal or conviction. State v. Hudson, 55 R.I.
141, 179 A. 130, 135, 100 A.L.R. 313.
Defense also means the forcible repelling of an
attack made unlawfully with force and violence,
such as the defense of the nation in time of war.
United States v. 243.22 Acres of Land in Village
of Farmingdale, Town of Babylon, Suffolk Coun-
ty, N. Y., D.C.N.Y., 43 F.Supp. 561, 567.
In old statutes and records, the term means pro-
hibition; denial or refusal. Enconter le defense
et le commandement de Toy; against the prohibi-
tion and commandment of the king. St. Westm.
1, c. 1. Also a state of severalty, or of several or
exclusive occupancy; a state of inclosure.
Affidavit of Defense
See Affidavit.
Affirmative Defense
See that title.
Equitable Defense
See that title.
Frivolous Defense
One which at first glance can be seen to be
merely pretensive, setting up some ground which
cannot be sustained by argument. Dominion
Nat. Bank v. Olympia Cotton Mills, C.C.S.C., 128
F. 182.
Legal Defense
(1) A defense which is complete and adequate
in point of law. (2) A defense which may be
set up in a court of law; as distinguished from
an "equitable defense," which is cognizable only
in a court of equity or court possessing equitable
powers,
Meritorious Defense
One going to the merits, substance, or essen-
tials of the case, as distinguished from dilatory
or technical objections. Cooper v. Lumber Co.,
61 Ark. 36, 31 S.W. 981.
Partial Defense
One which goes only to a part of the cause of
action, or which only tends to mitigate the dam-
ages to be awarded. Carter v. Bank, 33 Misc. 128,
67 N.Y.S. 300.
Peremptory Defense
A defense which insists that the plaintiff never
had the right to institute the suit, or that, if he
had, the original right is extinguished or deter-
mined. 4 Bouv. Inst. No. 4206.
Personal Defense
In negotiable instruments law. A defense
which, though not good as against a holder in
due course, is good against certain parties, be-
cause of their participation in or knowledge of
certain transactions or facts from which such de-
fense arises. Such defenses include all defenses
that are not real or absolute defenses. Bauer
and Simpson, Law of Business, 2d Ed., p. 329.
Pretermitted Defense
One which was available to a party and of
which he might have had the benefit if he had
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DEFIANCE
pleaded it in due season, but which cannot after-
wards be heard as a basis for affirmative relief.
Swennes v. Sprain, 120 Wis. 68, 97 N.W. 511.
Real Defense
In negotiable instruments law. A defense in-
herent in the res and therefore good against
anyone seeking to enforce the instrument, even a
holder in due course. Real defenses include il-
legality, incapacity, forgery, material alteration,
nondelivery of an incomplete instrument, and
fraud in the inception. These defenses are good
even against a holder in due course because,
where they exist, no contract was formed. Bauer
and Simpson, Law of Business, 2d Ed., p. 330.
Sham Defense
A false or fictitious defense, interposed in bad
faith, and manifestly untrue, insufficient, or ir-
relevant on its face.
Self Defense
See that title.
DEFENSE ACTIVITY. The performance of war
contracts by industry. The construction of im-
plements of war. Any activity in aid of the war
effort. Equitable Trust Co. v. Bowles, Em.App.,
143 F.2d 735, 741.
DEFENSE AU FOND EN DROIT (called, also,
defense en droit). A demurrer. 2 Low. C. 278.
See, also, 1 Low. C. 216.
DEFENSE AU FOND EN FAIT. The general is-
sue. 3 Low. C. 421.
DEFENSIVA. In old English law. A lord or
earl of the marches, who was the warden and de-
fender of his country. Cowell.
DEFENSIVE ALLEGATION. In English ecclesi-
astical law. A species of pleading, where the de-
fendant, instead of denying the plaintiff's charge
upon oath, has any circumstances to offer in his
defense. This entitles him, in his turn, to , the
plaintiff's answer upon oath, upon which he may
proceed to proofs as well as his antagonist. 3 Bl.
Comm. 100; 3 Steph. Comm. 720.
DEFENSIVE WAR. A war in defense of, or for
the protection of, national rights. It may be
defensive in its principles, though offensive in
its operations. 1 Kent, Comm. 50, note.
DEFENSO. That part of any open field or place
that was allotted for corn or hay, and upon which
there was no common or feeding, was anciently
said to be in defenso; so of any meadow ground
that was laid in for hay only. The same term
was applied to a wood where part was inclosed or
fenced, to secure the growth of the underwood
from the injury of cattle. Cowell.
In the Civil Law
A defender; one who assumed the defense of
another's case in court. Also an advocate. A
tutor or curator.
In Canon Law
The advocate or patron of a church. An of-
ficer who had charge of the temporalities of the
church.
In Old English Law
A guardian, defender, or protector. The de-
fendant in an action. A person vouched in to war-
ranty.
In General
Defensor civitatis. Defender or protector of a
city or municipality. An officer under the Roman
empire, whose duty it was to protect the people
against the injustice of the magistrates, the in-
solence of the subaltern officers, and the rapacity
of the money-lenders. Schm. Civil Law, Introd.
16; Cod. 1, 55, 4. He had the powers of a judge,
with jurisdiction of pecuniary causes to a limited
amount, and the lighter species of offenses. Cod.
1, 55, 1; Nov. 15, c. 3, § 2; Id. c. 6, § 1: He had
also the care of the public records, and powers
similar to those of a notary in regard to the exe-
cution of wills and conveyances.
Defensor fidei. Defender of the faith. See De-
fender.
DEFENSUM. A prohibition. An inclosure of
land; any fenced ground. Medley, Eng. Const.
Hist. See Defenso.
DEFER. Delay; put off; remand; postpone to
a future time. The term does not have, however,
the meaning of abolish, Moore v. Sampson Coun-
ty, 220 N.C. 232, 17 S.E.2d 22, 23, or omit, United
States v. Murine Co., C.C.A.Ill., 90 F.2d 549, 551.
DEFERRED LIFE ANNUITIES. In English
jaw. Annuities for the life of the purchaser, but
not commencing until a date subsequent to the
date of buying them, so that, If the purchaser die
before that date, the purchase money is lost.
Granted by the commissioners for reduction of
the national debt. See 16 & 17 Viet. c. 45, § 2.
Wharton.
DEFERRED PAYMENTS. Payments of principal
or interest postponed to a future time; install-
ment payments; a method of paying insurance
proceeds. (Life insurance) Holmes v. John Han-
cock Mut. Life Ins. Co., 41 N.E.2d 909, 911, 288
N.Y. 106; (notes) First Nat. Bank v. Bosler, 297
Pa. 353, 147 A. 74, 75; (highway contract) Central
Tractor & Equipment Co. v. Betz, 63 S.D. 435, 260
N.W. 269; (will) In re Mitinger's Estate, 114 Pa.
Super. 209, 173 A. 432, 433.
DEFERRED SENTENCE. A sentence, the pro-
nouncement of which has been postponed. It
does not operate as a suspension of sentence.
State v. Powell, 153 Wash. 110, 279 P. 573, 574.
DEFERRED STOCK. See Stock.
DEFIANCE. A contemptuous opposition or dis-
regard openly expressed in words or action.
State v. Mohar, 168 Wash. 368, 13 P.2d 454, 455.
A provoking to combat, a challenge, a declara-
tion of hostilities. Anderson-Berney Bldg. Co. v.
Lowry, Tex.Civ.App., 143 S.W.2d 401, 403.
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DEFICIENCY
DEFICIENCY. A lack, shortage or insufficiency.
The amount by which the income tax imposed
exceeds the amount shown as the tax by the tax-
payer upon his return. American Woolen Co. v.
United States, Ct.C1., 21 F.Supp. 1021, 1022.
That part of a debt secured by mortgage not
realized from sale of mortgaged property. Har-
row v Metropolitan Life Ins. Co., 285 Mich. 349,
280 N.W. 785, 787. A judgment or decree for the
amount of such deficiency is called a "deficiency
judgment" or "decree." Phillips v. Union Central
Life Ins. Co.., C.C.A.Minn., 88 F.2d 188, 189 (judg-
ment) ; Grace v. Hendricks, 103 Fla. 1158, 140 So.
790, 794 (decree).
Technically speaking, there is no such thing under our
law as a "deficiency judgment" in the sense that a formal
judgment of that description is rendered by the court, or
entered by the clerk for the amount not made by the sale
of the mortgaged property. There is only the original
judgment for the full amount of the indebtedness, upon
which a deficiency may exist after the issuance and return
of the special execution, or even perhaps of one or more
general executions in addition. It has nevertheless been
customary in ordinary parlance to refer to the amount still
due after the return of the special execution as a "deficien-
cy judgment." Bank of Douglas v. Neel, 30 Ariz. 375, 247
P. 132, 134.
DEFICIENCY BILL. In parliamentary practice,
an appropriation bill covering items of expense
omitted from the general appropriation bill or
bills, or for which insufficient appropriations were
made. If intended to cover a variety of sFch
items, it is commonly called a "general deficiency
bill;" if intended to make provision for expenses
which must be met immediately, or which cannot
wait the ordinary course of the general appropria-
tion bills, it is called an "urgent deficiency bill."
Deficiente uno sanguine non potest esse hares,
3 Coke, 41. One blood being wanting, he cannot
be heir. But see 3 & 4 Wm. IV. c. 106, § 9, and
33 & 34 Viet. c. 23, § 1.
DEFICIT. Something wanting, generally in the .
accounts of one intrusted with money, or in the
money received by him. Mutual L. & B. Ass'n v.
Price, 19 Fla. 135. The term is broad enough to
cover defalcation, misappropriation, shrinkage, or
costs, and, in its popular meaning, signifies de-
ficiency from any cause. Clement v. Whisnant,
208 N.C. 167, 179 S.E. 430, 433, 101 A.L.R. 698.
DEFILE. To debauch, deflower, or corrupt the
chastity of a woman. The term does not neces-
sarily imply force or ravishment, nor does it con-
note previous immaculateness. State v. Fernald,
88 Iowa, 553, 55 N.W. 534; State v. Besares, 73
Utah 141, 283 P. 738, 739. The term, when used
in a statute penalizing any person who shall pub-
licly defile any flag of the United States, has the
meaning of dishonor. State v. Schlueter, 127 N.
J.L. 496, 23 A.2d 249, 251.
DEFILEMENT. Uncleanness; impurity; corrup-
tion of morals or conduct. Young v. State, 194
Ind. 221, 141 N.E. 309, 311,
DEFINE. To explain or state the exact meaning
of words and phrases; to state explicitly; to
li mit; to determine essential qualities of; to de-
termine the precise signification of; to settle; to
establish or prescribe authoritatively; to make
clear. U. S. v. Smith, 5 Wheat. 160, 5 L.Ed. 57;
Walling v. Yeakley, C.C.A.Colo., 140 F.2d 830, 832;
Walters v. Richardson, 93 Ky. 374, 20 S.W. 279.
To declare that a certain act shall constitute an
offense is defining that offense. U. S. v. Arjona,
120 U.S. 488, 7 S.Ct. 628, 30 L.Ed. 728.
To "define" with respect to space, means to set
or establish its boundaries authoritatively; to
mark the limits of; to determine with precision
or to exhibit clearly the boundaries of; to deter-
mine the end or limit; to fix or establish the lim-
its. It is the equivalent to declare, fix or estab-
lish. Seeking out what exists already is not "de-
fining." Redlands Foothill Groves v. Jacobs, D.C.
Cal., 30 F.Supp. 995, 1004.
DEFINITE. Fixed, determined, defined, bounded.
Board of Sup'rs of Yavapai County v. Stephens,
20 Ariz. 115, 177 P. 261, 262; Kintner v. Atlantic
Communication Co., C.C.A.N.Y., 240 F. 716, 721.
A definite failure of issue occurs when a precise time is
fixed by a will for a failure of issue. An indefinite failure
of issue Is the period when the issue of the first taker shall
become extinct and when there shall no longer be any is-
sue of the grantee, but without reference to a particular
time or event; Huxford v. Milligan, 50 Ind. 546; McWil-
liams v. Havely, 214 Ky. 320, 283 S.W. 103, 105.
DEFINITIO. Lat. Definition, or more strictly,
limiting or bounding; as in the maxim of the
civil law: Omnis definitio periculosa est, parum
est enim ut non subverti possit, (Dig. 50, 17, 202;)
e., the attempt to bring the law within the
boundaries of precise definitions is hazardous, as
there are but few cases in which such a limitation
cannot be subverted.
DEFINITION. A description of a thing by its
properties; an explanation of the meaning of a
word or term. Webster. The process of stating
the exact meaning of a word by means of other
words. Worcester. See Warner v. Beers, 23
Wend., N.Y., 103; Marvin v. State, 19 Ind. 181.
Such a description of the thing defined, including
all essential elements and excluding all nonessen-
tial, as to distinguish it from all other things and
classes. Wilson v. Else, 204 Iowa 857, 216 N.W.
33, 37.
DEFINITIVE. That which finally and completely
ends and settles a controversy. A definitive sen-
tence or judgment is put in opposition to an in-
terlocutory judgment. Thompson v. Graham, 246
Pa. 202, 92 A. 118, 119; Interstate Electric Co. v.
Interstate Electric Co. of Shreveport, La.App., 6
So.2d 39, 40.
A distinction may be taken between a final and a defini-
tive judgment. The former term is applicable when the
judgment exhausts the powers of the particular court in
which it is rendered; while the latter word designates a
judgment that is above any review or contingency of re-
versal. U. S. v. The Peggy, 1 Cranch, 103, 2 L.Ed. 49.
DEFINITIVE SENTENCE. The final judgment,
decree, or sentence of an ecclesiastical court. 3
Bl.Comm. 101.
DEFLECT. To turn aside, to deviate from a
straight or horizontal line or from a proper posi-
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DEGREE
tion, to swerve, to deviate. Grip Nut Co. v. Mac-
Lean-Fogg Lock Nut Co., D.C.I11., 34 F.2d 41, 42.
DEFLORATION. Seduction or debauching. The
act by which a woman is deprived of her virginity.
DEFORCE.
In English Law
To withhold wrongfully; to withhold the pos-
session of lands from one who is lawfully entitled
to them. 3 Bl.Comm. 172; Phelps v. Baldwin, 17
Conn. 212.
In Scotch Law
To resist the execution of the law; to oppose
by force a public officer in the execution of his
duty. Bell.
DEFORCEMENT. Deforcement is where a man
wrongfully holds lands to which another person
is entitled. It therefore includes disseisin, abate-
ment, discontinuance, and intrusion. Co. Litt.
277b, 331b; Hopper v. Hopper, 21 N.J.L. 543. But
it is applied especially to cases, not falling under
those heads, where the person entitled to the free-
hold has never had possession; thus, where a lord
has a seignory, and lands escheat to him propter
defectum sanguinis, but the seisin is withheld
from him, this is a deforcement, and the person
who withholds the seisin is called a "deforceor."
3 Bl.Comm. 172.
In Scotch Law
The opposition or resistance made to messen-
gers or other public officers while they are actual-
ly engaged in the exercise of their offices. Ersk.
Inst. 4, 4, 32.
DEFORCIANT. One who wrongfully keeps the
owner of lands and tenements out of the posses-
sion of them. 2 Bl.Comm. 350.
DEFORCIARE. L. Lat. To withhold lands or
tenements from the rightful owner. This is a
word of art which cannot be supplied by any other
word. Co. Litt. 331b.
DEFORCIATIO. L. Lat. In old English law. A.
distress, distraint, or seizure of goods for satis-
faction of a lawful debt. Cowell.
DEFORMITY. A deformed or misshapen condi-
tion; an unnatural growth, or a distorted or mis-
shapen part or member; disfigurement; as a bod-
ily deformity. People v. Lehrman, 251 App.Div.
451, 296 N.Y.S. 580, 582.
In insurance. Representations in application for
insurance that applicant never had any "infirmity"
or "deformity" must be construed as meaning de-
formity or infirmity of substantial character ap-
parently materially impairing applicant's health,
which, if known, probably would have deterred
company from issuing policy. (Life insurance)
Eastern Dist. Piece Dye Works v. Travelers' Ins.
Co., 234 N.Y. 441, 138 N.E. 401, 404, 405, 26 A.L.R.
1505; (accident insurance) Commercial Casualty
Ins. Co. v. Mathews, 57 Ga.App. 446, 195 S.E. 887,
892.
DEFOSSION. The punishment of being buried
alive.
DEFRAUD. To practice fraud; to cheat or trick.
State v. Harroun, 199 Mo. 519, 98 S.W. 467, 470;
James v. State, 43 Ga.App. 324, 158 S.E. 644, 645.
To deprive a person of property or any interest,
estate, or right by fraud, deceit, or artifice. State
v. Vandenburg, 9 W.W.Harr. 498, 2 A.2d 916, 919.
But not by force or intimidation. Hammer-
schmidt v. U. S., 265 U.S. 182, 44 S.Ct. 511, 68 L.
Ed. 968; Norton v. U. S., C.C.A.Cal., 92 F.2d 753,
756.
DEFRAUDACION. In Spanish law. The crime
committed by a person who fraudulently avoids
the payment of some public tax.
DEFRAUDATION. Privation by fraud.
DEFUNCT. Deceased; a deceased person. A
common term in Scotch law. A corporation which
has ceased to function. Tozier v. Woodworth, 135
Me. 46, 188 A. 771, 773.
The term is synonymous with "dead." Farmers
Union Co-op. Brokerage v. Palisade Farmers Un-
ion Local No. 714, 69 S.D. 126, 7 N.W.2d 293, 295.
DEFUNCTUS. Lat. Dead. "Defunctus sine
prole," dead without (leaving) issue.
DEGASTER. L. Fr. To waste.
DEGRADATION. A deprivation of dignity; dis-
mission from office. An ecclesiastical censure,
whereby a clergyman is divested of his holy or-
ders. There are two sorts by the canon law,
one summary, by word only; the other solemn,
by stripping the party degraded of those orna-
ments and rights which are the ensigns of his
degree. Degradation is otherwise called "deposi-
tion," but the canonists have distinguished be-
tween these two terms, deeming the former as
the greater punishment of the two. There is like-
wise a degradation of a lord or knight at common
law, and also by act of parliament. Wharton.
DEGRADATIONS. A term for waste in the
French law.
DEGRADING. Reviling; holding one up to pub-
lic obloquy; lowering a person in the estimation
of the public.
DEGREE.
In General
The state or civil condition of a person, State v.
Bishop, 15 Me. 122; An honorable state or condi-
tion to which a student is advanced in testimony
of proficiency in arts and sciences. Common-
wealth v. New England College of Chiropractic,
221 Mass. 190, 108 N.E. 895, 896; The grade or dis-
tance one thing may be removed from another.
Superior Lloyds of America v. Foxworth, Tex.
Civ.App., 178 S.W.2d 724, 725.
They are of pontifical origin. See 1 Schmidt, Thesaurus,
144; Vicat, Doctores; Minshew, Diet. Bacheler; Merlin
Repertoire Univ.; Van Espen. pt. 1, tit. 10; Giannone,
Istoria di Napoli, lib. xi. c. 2, for a full account of this
matter.
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DEGREE
In the Law of Descent and Family Relations
A step or grade, i. e., the distance, or number of
removes, which separates two persons who are re-
lated by consanguinity. Thus we speak of a bro-
ther as being in the second degree of kindred.
Calvert v. Beck, 240 Ala. 442, 199 So. 846, 847.
In Criminal Law
The term "degree" denotes a division or classi-
fication of one specific crime into several grades
or stadia of guilt, according to the circumstances
attending its commission. Thus, in some states,
there may be "murder in the second degree."
DEHORNER. A rubbing alcohol addict. Powell
v. State, 179 Md. 399, 18 A.2d 587, 590.
DEHORS. L. Fr. Out of; without; beyond;
foreign to; unconnected with. Blackford v. An-
derson, 226 Iowa 1138, 286 N.W. 735, 746. Dehors
the record; foreign to the record. 3 Bl.Comm.
387.
DEHYDRATE. To deprive or to be free of water
or elements of water or to suffer loss of water.
In re Benner, Cust. & Pat.App., 46 F.2d 383, 384.
DEI GRATIA. Lat. By the grace of God. A
phrase used in the formal title of a king or queen,
importing a claim of sovereignty by the favor or
commission of God. In ancient times it was in-
corporated in the titles of inferior officers, (espe-
cially ecclesiastical,) but in later use was reserved
as an assertion of "the divine right of kings."
DEI JUDICIUM. The judgment of God. The old
Saxon trial by ordeal, so called because it was
thought to be an appeal to God for the justice of
a cause, and it was believed that the decision was
according to the will and pleasure of Divine Prov-
idence. Wharton.
DEJACION. In Spanish law. Surrender; re-
lease; abandonment; e. g., the act of an insolvent
in surrendering his property for the benefit of his
creditors, of an heir in renouncing the succession,
the abandonment of insured property to the un-
derwriters.
DEJERATION. A taking of a solemn oath.
DEL BIEN ESTRE. L. Fr. In old English prac-
tice. Of well being; of form. The same as de
bene esse. Britt. c. 39.
DEL CREDERE. In mercantile law. A phrase
borrowed from the Italians, equivalent to our
word "guaranty" or "warranty," or the Scotch
term "warrandice;" an agreement by which a
factor, when he sells goods on credit, for an addi-
tional commission, (called a "del credere commis-
sion,") guaranties the solvency of the purchaser
and his performance of the contract. Such a fac-
tor is called a "del credere agent" He is a mere
surety, liable to his principal only in case the
purchaser makes default. Story, Ag. 28; Lemnos
Broad Silk Works v. Spiegelberg, 217 N.Y.S. 595,
597, 127 Misc. 855; Commercial Investment Trust
v. Stewart, 235 Mich. 502, 209 N.W. 660, 661; Com-
monwealth v. Thorne, Neale & Co., 264 Pa. 408,10?
A. 814, 815; State v. Tuffs, 54 Mont. 20, 165 P. 1107,
1108.
DELAISSEMENT. In French marine law. Aban-
donment. Emerig. Tr. des Ass. ch. 17.
DELATE. In Scotch law. To accuse. Delated,
accused. Delatit off arte and parte, accused of
being accessary to. 3 How. St. Tr. 425, 440.
DELATIO. In the civil law. An accusation or
information.
DELATOR. An accuser; an informer; a syco-
phant.
DELATURA. In old English law. The reward
of an informer. Whishaw.
DELAY. To retard; obstruct; put off; postpone*,
defer; procrastinate; prolong the time of or be-
fore; hinder; interpose obstacles; as, when it is
said that a conveyance was made to "hinder and
delay creditors." Mercantile Co. v. Arnold, 108
Ga. 449, 34 S.E. 176; Ellis v. Valentine, 65 Tex.
532; Blair v. Blair, 122 Me. 500, 120 A. 902, 905.
The term does not imply dishonesty or involve
moral wrong. Citizens & Southern Nat. Bank v.
Kontz, 185 Ga. 131, 194 S.E. 536, 544.
DELAY RENTAL. Rent, usually on oil and gas
leases, paid for additional time in which to utilize
land. It does not depend on oil or gas produced,
does not exhaust substance of land, and resembles
a bonus payment, which is an advance royalty.
Commissioner of Internal Revenue v. Wilson, C.
C.A.Tex., 76 F.2d 766, 769; State v. Magnolia Pe-
troleum Co., Tex.Civ.App., 173 S.W.2d 186, 190.
DELECTUS PERSONAE. Lat. Choice of the per-
son. Johnston v. Winn, Tex.Civ.App., 105 S.W.2d
398, 400. By this term is understood the right
of a partner to exercise his choice and preference
as to the admission of any new members to the
firm, and as to the persons to be so admitted, if
any. People v. Herbert, 162 Misc. 817, 295 N.Y.S.
251, 253. The doctrine does not apply to corpora-
tions. Adams v. St. Clair, 185 Miss. 416, 188 So.
559, 560.
In Scotch Law
The personal preference which is supposed to
have been exercised by a landlord in selecting his
tenant, by the members of a firm in making choice
of partners, in the appointment of persons to of-
fice, and other cases. Nearly equivalent to per-
sonal trust, as a doctrine in law. Bell.
Delegata potestas non potest delegari. 2 Inst.
597. A delegated power cannot be delegated.
DELEGATE. A person who is delegated or com-
missioned to act in the stead of another, Landro
v. Pacific Atlantic S. S. Co., D.C.Wash., 30 F.Supp.
538, 539; a person to whom affairs are committed
by another; an attorney.
A person elected or appointed to be a member
of a representative assembly. Usually spoken of
one sent to a special or occasional assembly or
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convention. Manston v. McIntosh, 58 Minn. 525, 60
N.W. 672, 28 L.R.A. 605.
The representative in congress of one of the
organized territories of the United States. To
send as an agent or representative; to commit to
the care or management of another.
DELEGATES, THE HIGH COURT OF. In Eng-
lish law. Formerly the court of appeal from the
ecclesiastical and admiralty courts. Abolished up-
on the judicial committee of the privy council be-
ing constituted the court of appeal in such cases.
DELEGATION. A sending away; a putting into
commission; the assignment of a debt to another;
the intrusting another with a general power to
act for the good of those who depute him; a body
of delegates.
At Common Law
The transfer of authority by one person to an-
other; the act of making or commissioning a dele-
gate.
The whole body of delegates or representatives
sent to a convention or assembly from one dis-
trict, place, or political unit are collectively spo-
ken of as a "delegation."
In the Civil Law
A species of novation which consists in the
change of one debtor for another, when he who is
indebted substitutes a third person who obligates
himself in his stead to the creditor, or to the per-
son appointed by him so that the first debtor is
acquitted and his obligation extinguished, and the
creditor contents himself with the obligation of
the second . debtor. Delegation is essentially dis-
tinguished from any other species of novation,
in this: that the former demands the consent of
all three parties, but the latter that only of the
two parties to the new debt. 1 Domat, § 2318;
Adams v. Power, 48 Miss. 454.
Delegation is novation effected by the interven-
tion of another person whom the debtor, in order
to be liberated from his creditor, gives to such
creditor, or to him whom the creditor appoints;
and such person so given becomes obliged to the
creditor in the place of the original debtor.
Burge, Sur. 173.
Perfect delegation exists when the debtor who makes the
obligation is discharged by the creditor.
Imperfect delegation exists when the creditor retains his
rights against the original debtor. 2 Duvergnoy, n. 169.
Delegatus non potest delegare. A delegate can-
not delegate; an agent cannot delegate his func-
tions to a subagent without the knowledge or con-
sent of the principal; the person to whom an office
or duty is delegated cannot lawfully devolve the
duty on another, unless he be expressly authorized
so to do. 9 Coke, 77; Broom, Max. 840; 2 Kent,
Comm. 633; 2 Steph.Comm. 119; Blake v. Allen,
221 N.C. 445, 20 S.E.2d 552, 554.
DELESTAGE. In French marine law. A dis-
charging of ballast (lest) from a vessel.
Black's Law Dictionary Revised 4th Ed.-33
DELETE. In Scotch law. To erase; to strike
out.
DELETERIOUS. Hurtful, morally or physically;
injurious, as influence; poisonous; unwholesome.
State v. Crabtree Co., 218 Minn. 36, 15 N.W.2d 98.
Thus struvite crystals which developed in jar of wet
shrimp after packing, O'Hare v. Petersen, 174 Misc. 48-t,
21 N.Y.S.2d 487, 491, and bones in fish and fragments of
shell in oysters constitute "deleterious substances". Unit-
ed States v. 1232 Cases American Beauty Brand Oysters,
D.C.Mo., 43 F.Supp. 749, 751.
DELF. A quarry or mine. 31 Eliz. c. 7.
Deliberandum est diu quod statuendum est
semel. 12 Coke, 74. That which is to be resolved
once for all should be long deliberated upon.
DELIBERATE, v. To weigh, ponder, discuss, re-
gard u p on, consider. Cole v. List & Weatherly
Const. Co., La.App., 156 So. 88, 90. To examine,
to consult, in order to form an opinion. McGregor
v. State, 83 Tex.Cr.R. 35, 201 S.W. 184, 186. To
weigh in the mind; to consider the reasons for
and against; to consider maturely; reflect upon;
as to deliberate a question; to weigh the argu-
ments for and against a proposed course of ac-
tion. People v. Thomas, 25 Ca1.2d 880, 156 P.2d
7, 17, 18.
DELIBERATE, adj. Well advised; carefully con-
sidered; not sudden or rash; circumspect; slow
in determining. McClendon v. Louisiana Cent.
Lumber Co., 17 La.App. 246, 135 So. 754, 756.
Willful rather than merely intentional. Cole v.
List & Weatherly Const. Co., La.App., 156 So. 88,
90. Formed, arrived at, or determined upon as a
result of careful thought and weighing of con-
siderations, as a deliberate judgment or plan;
carried on coolly and steadily, especially accord-
ing to a preconceived design; given to weighing
facts and arguments with a view to a choice or
decision; careful in considering the consequences
of a step; slow in action; unhurried; character-
ized by reflection; dispassionate; not rash. Peo-
ple v. Thomas, 25 Ca1.2d 880, 156 P.2d 7, 17, 18.
The word carries with it an implication of some
obstinacy, headstrongness, foolish daring, or in-
tentional wrongdoing. Brown v. Kansas City
Bridge Co., La.App., 191 So. 755, 757.
By the use of this word, in describing a crime, the idea
is conveyed that the perpetrator weighs the motives for the
act and its consequences, the nature of the crime, or other
things connected with his intentions, with a view to a de-
cision thereon; that he carefully considers all these; and
that the act is not suddenly committed. It implies that the
perpetrator must be capable of the exercise of such mental
powers as are called into use by deliberation and the con-
sideration and weighing of motives and consequences. In
re Nunns, 188 App.Div. 424, 176 N.Y.S. 858, 865; Jenkins
v. Carman Mfg. Co., 79 Or. 448, 155 P. 703, 705.
"Deliberation" and "premeditation" are of the same char-
acter of mental operations, differing only in degree. De-
liberation is but prolonged premeditation. In othe'- words,
in law, deliberation is premeditation in a cool state of the
blood, or, where there has been heat of passion, it is pre-
meditation continued beyond the period within which there
has been time for the blood to cool, in the given case. De-
liberation is not only to think of beforehand, which may
be but for an instant, but the inclination to do the act is
considered, weighed, pondered upon, for such a length of
time after a provocation is given as the jury may find was
sufficient for the blood to cool. One in a heat of passion
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DELIBERATELY
may premeditate without deliberating. Deliberation is
only exercised in a cool state of the blood, while premedita-
tion may be either in that state of the blood or in the heat
of passion. State v. Hall, 40 N.M. 128, 55 P.2d 740, 742;
People v. Thomas, 25 Ca1.2d 880, 156 P.2d 7, 17; State v.
Payne, 213 N. C. 719, 197 S.E. 573, 579.
DELIBERATELY. Willfully; with premeditation;
intentionally; purposely; in cold blood. Aver-
heart v. State, 158 Ark. 639, 238 S.W. 620, 621;
State v. Young, 314 Mo. 612, 286 S.W. 29, 34;
Csanyi v. Csanyi, 93 N.J.Eq. 11, 115 A. 76, 78;
State v. Johnson, 92 Kan. 441, 140 P. 839, 840.
DELIBERATION. The act or process of deliberat-
ing. The act of weighing and examining the rea-
sons for and against a contemplated act or course
of conduct or a choice of acts or means. See De-
liberate.
DELICATESSEN. Prepared foods, such as cooked
meats, relishes, preserves and the like. North
Ave. Market v. Keys, 164 Md. 185, 164 A. 152, 154.
Also, a store that sells such prepared foods. Park-
er v. Levin, 285 Mass. 125, 188 N.E. 502, 503, 90 A.
L.R. 1446.
Delicatus debitor est odiosus in lege. A luxuri-
ous debtor is odious in law. 2 Bulst. 148. Impris-
onment for debt has now, however, been generally
abolished.
DELICT. In the Roman and civil law. A wrong
or injury; an offense; a violation of public or
private duty.
It will be observed that this word, taken in its most gen-
eral sense, is wider in both directions than our English
term "tort." On the one hand, it includes those wrongful
acts which, while directly affecting some individual or his
property, yet extend in their injurious consequences to the
peace or security of the community at large, and hence rise
to the grade of crimes or misdemeanors. These acts were
termed in the Roman law "public delicts;" while those
for which the only penalty exacted was compensation to
the person primarily injured were denominated "private
delicts." On the other hand, the term appears to have
included injurious actions which transpired without any
malicious intention on the part of the doer. Thus Pothier
gives the name "quasi delicts" to the acts of a person who,
without malignity, but by an inexcusable imprudence,
causes an injury to another. Poth.Obl. 116. But the term
is used in modern jurisprudence as a convenient synonym
of "tort."
Quasi Delict
An act whereby a person, without malice, but by fault,
negligence, or imprudence not legally excusable, causes
injury to another. They were four in number, viz.: (1)
Qui judex Went suam fecit, being the offense of partiality
or excess in the judex, (juryman.) (2) Dejecturn effusumve
aliquid, being the tort committed by one's servant in
emptying or throwing something out of an attic or upper
story upon a person passing beneath. (3) Darnnurn infec-
turn, being the offense of hanging dangerous articles over
the heads of persons passing along the king's highway.
(4) Torts committed by one's agents in the course of
their employment. Brown.
DELICTUAL FAULT. An act, productive of ob-
ligations, which takes place between persons jurid-
ically strangers to each other; it supposes the
absence of obligation and its result is the creation
of one. Reserve Ins. Co. v. Fabre, 149 So.2d 413,
416, 243 La. 982.
DELICTUM. Lat. A delict, tort, wrong, injury,
or offense. Actions ex delicto are such as are
founded on a tort, as distinguished from actions
on contract.
Culpability, blameworthiness, or legal delin-
quency. The word occurs in this sense in the
maxim, "In pari delicto melior est conditio de-
fendentis" (which see).
A challenge of a juror propter delictum is for
some crime or misdemeanor that affects his credit
and renders him infamous. 3 Bl.Comm. 363; 2
Kent, Comm. 241.
DELIMIT. To mark or lay out the limits or
boundary line of a territory or country; to fix or
to mark the limits of; to demarcate; bound.
Walling v. Yeakley, C.C.A.Colo., 140 F.2d 830, 832.
DELIMITATION. The act of fixing, marking off,
or describing the limits or boundary line of a
territory, country, authority, right, statutory ex-
ception or the like. See Delimit.
DELINQUENCY. Failure, omission, violation of
duty. State or condition of one who has failed to
perform his duty. Travelers' Protective Ass'n of
America v. Ziegler, Tex.Civ.App., 250 S.W. 1115,
1116; Robinson v. Miller, 317 . Ill. 501, 148 N.E.
319, 322. Synonymous with misconduct and of-
fense. Boynton Cab Co. v. Neubeck, 237 Wis. 249,
296 N.W. 636, 639.
Delinquens per iram provocatus puniri debet mi-
tius. 3 Inst. 55. A delinquent provoked by anger
ought to be punished more mildly.
DELINQUENT, n. In the civil law. He who has
been guilty of some crime, offense, or failure of
duty.
DELINQUENT, adj. As applied to a debt or
claim, it means simply due and unpaid at the time
appointed by law or fixed by contract; as, a de-
linquent tax. Chauncey v. Wass, 35 Minn. 1, 30
N.W. 826; Gallup v. Schmidt, 154 Ind. 196, 56 N.
E. 450. As applied to a person, it commonly
means that he is grossly negligent or in willful
default in regard to his pecuniary obligations, or
even that he is dishonest and unworthy of credit.
Boyce v. Ewart, Rice S. C., 140; Ferguson v. Pitts-
burgh, 159 Pa. 435, 28 Atl. 118; Grocers' Ass'n v.
Exton, 18 Ohio Cir.Ct.R. 321.
DELINQUENT CHILD. An infant of not more
than specified age, Phillips v. State, Tex.Cr.App.,
20 S.W.2d 790, 791, who has violated any law or
who is incorrigible; (prostitute) Bolker v. State,
134 Neb. 255, 278 N.W. 377, 379; (thief) Rose v.
State, 137 Tex.Cr.R. 316, 129 S.W.2d 639, 640;
(felony) State v. Connally, 190 La. 175, 182 So.
318, 319.
Although the terms dependent child and delin-
quent child, as used in juvenile court law, are
largely synonymous, State v. Clevenger, 161 Wash.
306, 296 P. 1054; a neglected and dependent child
is not necessarily a delinquent child. In re San-
tillanes, 47 N.M. 140, 138 P.2d 503, 513.
DELINQUENT JUVENILE. See Delinquent
Child.
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DELINQUENT TAXES. Past due and unpaid tax-
es. Ryan v. Roach Drug Co., 113 Okl. 130, 239 P.
912, 918; Cornell v. Maverick Loan & Trust Co.,
95 Neb. 9, 144 N.W. 1072, 1074.
DELIRIUM. In medical jurisprudence. Delirium
is that state of the mind in which it acts without
being directed by the power of volition, which is
wholly or partially suspended. This happens most
perfectly in dreams. But what is commonly call-
ed "delirium" is always preceded or attended by a
feverish and highly diseased state of the body.
The patient in delirium is wholly unconscious of
surrounding objects, or conceives them to be dif-
ferent from what they really are. His thoughts
seem to drift about, wildering and tossing amidst
distracted dreams. And his observations, when
he makes any, as often happens, are wild and in-
coherent; or, from excess of pain, he sinks into a
low muttering, or silent and death-like stupor.
The law contemplates this species of mental de-
rangement as an intellectual eclipse; as a dark-
ness occasioned by a cloud of disease passing over
the mind; and which must soon terminate in
health or in death. Supreme Lodge v. Lapp, 25
Ky.Law Rep. 74, 74 S.W. 656; Sommerville v.
Greenhood, 65 Mont. 101, 210 P. 1048, 1054; Grand
Lodge, A. 0. U. W. of Arkansas, v. Mode, 157 Ark.
62, 247 S.W. 386, 388; (distinguished from insane
delusion) Schoenhoff v. Haering, 327 Mo. 837, 38
S.W.2d 1011, 1015.
DELIRIUM FEBRILE. In medical jurisprudence.
A form of mental aberration incident to fevers,
and sometimes to the last stages of chronic dis-
eases.
DELIRIUM TREMENS. A disorder of the ner-
vous system, involving the brain and setting up
an attack of temporary delusional insanity, some-
times attended with violent excitement or mania,
caused by excessive and long continued indulgence
in alcoholic liquors, or by the abrupt cessation of
such use after a protracted debauch. Horn v.
Commonwealth, 292 Ky. 587, 167 S.W.2d 58, 61;
Hartin v. Hysee Inghram Tire Co., 153 Pa.Super.
121, 33 A.2d 471, 473. See Insanity.
DELITO. In Spanish law. Crime; a crime, of-
fense, or delict. White, New Recop. b. 2, tit. 19,
c. 1, § 4.
DELIVERANCE. In practice. The verdict, ren-
dered by a jury.
Second Deliverance
In practice. A writ allowed a plaintiff in re-
plevin, where the defendant has obtained judg-
ment for return of the goods, by default or non-
suit, in order to have the same distress again de-
livered to him, on giving the same security as be-
fore. 3 Bl.Comm. 150; 3 Steph.Comm. 668.
DELIVERY. The act by which the res or sub-
stance thereof is placed within the actual or con-
structive possession or control of another. Poor
v. American Locomotive Co., C.C.A.I11., 67 F.2d
626, 630.
What constitutes delivery depends largely on
the intent of the parties. It is not necessary that
delivery should be by manual transfer. Miller v.
Hospelhorn, 176 Md. 356, 4 A.2d 728, 733.
"Delivery" required in conveyance of personal qhattels
as against all but vendor, is delivery in its natural sense ;
that is, a change of possession. Goodhue v. State St. Trust
Co., 267 Mass. 28, 165 N.E. 701, 705.
In General
The transfer from one person to another of the
res or a right or interest therein, which means
more than physical transfer of possession, Mur-
phy v. Smith, 291 Mass. 93, 195 N.E. 912; Pure
Oil Co. v. Evans, 369 Ill. 416, 17 N.E.2d 23, 24.
Although in the popular sense, in the case of a
contract or lease or the like, it implies a trans-
fer of the tangible contract. Lease, Roberts v.
Cyr, 136 Me. 39, 1 A.2d 281, 282; release for in-
jury, Pevesdorf v. Union Electric Light & Power
Co., 333 Mo. 1155, 64 S.W.2d 939; check, Irving
Trust Co. v. Leff, 253 N.Y. 359, 171 N.E. 569; bank
passbook, Brooks v. Mitchell, 163 Md. 1, 161 A.
261, 266, 84 A.L.R. 547.
Absolute and conditional. An absolute delivery,
as distinguished from conditional delivery or de-
livery in escrow, is one which is complete upon
the actual transfer of the instrument from the
possession of the grantor. Dyer v. Skadan, 128
Mich. 348, 87 N.W. 277, 278, 92 Am.St.Rep. 461. A
conditional delivery is one which passes the thing
subject to delivery from the possession of the
grantor, but is not to be completed by possession
of the grantee, or a third person as his agent, un-
til the happening of a specified event. Silliman v.
Dobner, 165 Minn. 87, 205 N.W. 696, 697.
Actual and constructive. Actual delivery consists
in the giving real possession to the vendee or his
servants or special agents who are identified with
him in law and represent him. Carr v. St. Louis-
San Francisco Ry. Co., Mo.App., 284 S.W. 184, 185.
It is a formal immediate tradition of the prop-
erty to the vendee. Bridgham v. Hinds, 120 Me.
444, 115 A. 197, 199, 21 A.L.R. 1024. It contem-
plates a manual transfer of the property. Callan
v. Mutual Life Ins. Co., La.App., 147 So. 110, 111.
Constructive delivery is a general term, compre-
hending all those acts which, although not truly
conferring a real possession of the thing sold on
the vendee, have been held, by construction of law,
equivalent to acts of real delivery.
Constructive delivery includes symbolic or substituted
delivery and all those traditiones fictce which have been
admitted into the law as sufficient to vest the absolute
property in the vendee and bar the rights of lien and stop-
page in transitu, such as marking and setting apart the
goods as belonging to the vendee, charging him with ware-
house rent, etc. See In re Nesto, C.C.A.Pa., 270 F. 503.
A constructive delivery of personalty takes place when the
goods are set apart and notice given to the person to whom
they are to be delivered. The Titania, C.C.A., 131 F. 229,
65 C.C.A. 215, or when, without actual transfer of the goods
or their symbol, the conduct of the parties is such as to be
inconsistent with any other supposition than that there has
been a change In the nature of the holding. Swafford v.
Spratt, 93 Mo.App. 631, 67 S.W. 701.
Delivery bond. A bond given upon the seizure of
goods (as under the revenue laws) conditioned for
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their restoration to the defendant, or the payment
of their value, if so adjudged.
Delivery order. An order addressed, in England,
by the owner of goods to a person holding them
on his behalf, requesting him to deliver them to a
person named in the order. Delivery orders are
chiefly used in the case of goods held by dock
companies, wharfingers, etc. National Wholesale
Grocery Co. v. Mann, 251 Mass. 238, 146 N.E. 791,
793.
Failure to make delivery, see Failure to Make
Delivery.
Second delivery. The legal delivery by the de-
positary of a deed placed in escrow. Thornhill v.
Olson, 31 N.D. 81, 153 N.W. 442, 445, L.R.A.1916A,
493, Ann.Cas.1917E, 427.
Symbolical delivery. The constructive delivery of
the subject-matter of a sale, where it is cumber-
some or inaccessible, by the actual delivery of
some article which is conventionally accepted as
the symbol or representative of it, or which ren-
ders access to it possible, or which is the evidence
of the purchaser's title to it; as the key of a
warehouse, or a bill of lading of goods on ship-
board. Hall v. Kansas City Terra Cotta Co., 97
Kan. 103, 154 P. 210, 212, L.R.A.1916D, 361, Ann.
Cas.1918D, 605.
In Conveyancing
The final and absolute transfer of a deed, prop-
erly executed, to the grantee, or to some person
for his use, in such manner that it cannot be re-
called by the grantor. Gatchell v. Gatchell, 127
Me. 328, 143 A. 169, 170; Arndt v. Lapel, 214 Iowa
594, 243 N.W. 605, 610; delivery to a stranger,
Hall v. Hall, 292 Ky. 772, 168 S.W.2d 10, 14; or
depositary, Stalting v. Stalting, 52 S.D. 309, 217
N.W. 386, 389.
In Law of Sales
The tradition or transfer of the possession of
personal property from one person to another.
Bowles v. Beucher, D.C.Mass., 53 F.Supp. 984, 987;
delivery of a bill of sale or written evidence of
title as sufficient delivery, Smith v. Acorn, D.C.
Mun.App., 32 A.2d 252, 255; by carrier, Rice &
Lockwood Lumber Co. v. Boston & M. R. R., 308
Mass. 101, 31 N.E.2d 219, 221, 222, 223.
"Delivery" occurs whenever, at time and place fixed by
law or agreed on by parties, seller does everything neces-
sary to put goods completely and unconditionally at
buyer's disposal. Fox v. Young, Tex.Civ.App., 91 S.W.2d
857, 859.
In Medical Jurisprudence
The act of a woman giving birth to her off-
spring. Blake v.-Junkins, 35 Me. 433.
DELUSION. In medical jurisprudence. An in-
sane delusion is an unreasoning and incorrigible
belief in the existence of facts which are either
impossible absolutely, or, at least, impossible un-
der the circumstances of the individual. It is
never the result of reasoning and reflection; it is
not generated by them, and it cannot be dispelled
by them; and hence it is not to be confounded
with an opinion, however fantastic .the latter may
be. Guiteau's Case, D.C.D.C., 10 Fed. 161, 170;
Davidson v. Piper, 221 Iowa 171, 265 N.W. 107, 109;
McKinnon v. State, 51 Ga.App. 549, 181 S.E. 91;
Hallucination as a delusion, Petroleum Casualty
Co. v. Kincaid, Tex.Civ.App., 93 S.W.2d 499, 501;
belief in the impossible, In re Leedom's Estate,
347 Pa. 180, 32 A.2d 3; as respects testamentary
capacity, In re McDowell's Estate, 103 N.J.Eq. 346,
143 A. 325, 326.
Systematized Delusion
One based on a false premise, pursued by a
logical process of reasoning to an insane conclu-
sion; there being one central delusion around
which other aberrations of the mind converge;
Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405.
See Insanity.
DEM. An abbreviation for "demise;" e. g., Doe
dem. Smith, Doe, on the demise of Smith.
DEMAIN. See Demesne.
DEMAND, v. In practice. To claim as one's due;
to require; to ask relief. To summon; to call in
court. "Although solemnly demanded, comes not,
but makes default." Fossett v. State, 34 Okl.Cr.
106, 245 P. 668, 669.
DEMAND, n. A peremptory claim to thing of
right, differing from claim, in that it presupposes
that there is no defense or doubt upon question of
right, Golden v. Golden, 155 Oki. 10, 8 P.2d 42, 45;
Anderson v. Commercial Credit Co., 110 Mont.
333, 101 P.2d 367, 369; National Life & Accident
Ins. Co. v. Dove, 141 Tex. 464, 174 S.W.2d 245, 247.
The assertion of a legal right; a legal obliga-
tion asserted in the courts; a word of art of an
extent greater in its signification than any other
word except "claim." Nunn v. Titche-Goettinger
Co., Tex.Civ.App., 196 S.W. 890, 892. Demand
for payment. Peterson v. Rodgers, 51 Ariz. 502,
78 P.2d 480, 482; assessment upon corporate stock
of deceased. Smith v. Fechheimer, 124 Fla. 757,
169 So. 395, 398; presentment of statement, Davi-
son v. Klaess, 280 N.Y. 252, 20 N.E.2d 744, 746.
However, under some statutes "demand" has a
more restricted meaning. Hillside Securities Co.
v. Minter, 300 Mo. 380, 254 S.W. 188, 193.
A debt or amount due. Inhabitants of Town
of Frankfort v. Waldo Lumber Co., 128 Me. 1,
145 A. 241, 243; Caldwell v. Morfa, D.C.Tex., 24
F.2d 106, 107.
An imperative request preferred by one person
to another, under a claim of right, requiring the
latter to do or yield something or to abstain from
some act. Zimmerman v. Hicks, C.C.A., 7 F.2d
443, 445; Norwood Nat. Bank v. Piedmont Pub.
Co., 106 S.C. 472, 91 S.E. 866, 867; school district's
request that depositary honor checks for salaries.
School District of City of Lansing v. Fidelity &
Casualty Co. of New York, 266 Mich. 189, 253 N.W.
263; demand for extradition, Ex parte King, 139
Me. 203, 28 A.2d 562, 564.
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DEMESNE
The seeking after a commodity or service. It
is not something static, but necessarily contains
the idea of "competition" and a realization that
markets are as much limited by sales efforts as
by capacity to produce. Mendota Coal & Coke
Co. v. Eastern Ry. & Lumber Co., C.C.A.Wash.,
53 F.2d 77, 82.
— Compulsory demand. "Compulsory demand"
by the true owner of an article, justifying sur-
render and recovery by the one who surrenders it
as against his vendor, means when the true owner
presents his claim and establishes his paramount
title. Jordan v. Van Duzee, 139 Minn. 103, 165
N.W. 877, 879, L.R.A. 1918B, 1136.
— Cross-demand. A demand that is preferred by
one party to an action in opposition to a demand
already preferred against him by his adversary.
Drovers' State Bank v. Elliott, 97 Kan. 64, 154 P.
255, 256.
—Demand in reconvention. A demand which the
defendant institutes in consequence of that which
the plaintiff has brought against him. Used in
Louisiana. Equivalent to a "counterclaim" else-
where. McLeod v. Bertschey, 33 Wis. 177, 14 Am.
Rep. 755.
—Demand note. A note that is due at once; one
on which suit may be brought without any formal
demand. Wilson v. Stark, 146 Miss. 498, 112 So.
390, 392.
—Legal demand. A demand properly made, as
to form, time, and place, by a person lawfully au-
thorized. Foss v. Norris, 70 Me. 118.
—On demand. A promissory note payable "on
demand" is a present debt, and is payable without
any actual demand, or, if a demand is necessary,
the bringing of a suit is enough. Appeal of An-
dress, 99 Pa. 424.
—Personal demand. A demand for payment of a
bill or note, made upon the drawer, acceptor or
maker, in person. See 1 Daniel, Neg. Inst. § 589.
—Reasonable public demand for a bank. Such a
desire upon the part of the community for the
bank as will make its coming welcome and insure
an amount of business sufficient to promise it
success. It may come from the natural desire of
the community and upon its own initiative, or it
may be the result of propaganda. State v. State
Securities Commission, 145 Minn. 221, 176 N.W.
759, 760.
DEMAND NOTE. A note which expressly states
that it is payable on demand, on presentation or
at sight; a note in which no time for payment
is expressed, Cassity v. Cassity, 147 Kan. 411, 76
P.2d 862, 866; Kent v. Lampman, 59 Cal.App.2d
407, 139 P.2d 57, 59; Tarlton v. Johnson, Mo.App.,
138 S.W.2d 49, 52; a note issued, accepted or in-
dorsed when overdue, as regards person so issu-
ing, accepting or indorsing it. Nees v. Hagan, 22
Tenn.App. 28, 118 S.W.2d 566, 568; DeLoach v.
Adams Loan & Investment Co., 62 Ga.App. 61, 7
S.E.2d 580, 581.
DEMANDA. In Spanish law. The petition of a
plaintiff, setting forth his demand. Las Partidas,
pt. 3, tit. 10, 1. 3.
DEMANDANT. The plaintiff or party suing in
a real action. Co. Litt. 127.
DEMANDRESS. A female demandent.
DEMEANOR. As respects a witness or other
person, relates to physical appearance. People
v. Vaughan, 131 Cal.App. 265, 21 P.2d 438. It em-
braces such facts as the tone of voice in which a
witness' statement is made, the hesitation or read-
iness with which his answers are given, the look
of the witness, his carriage, his evidences of sur-
prise, his gestures, his zeal, his bearing, his ex-
pression, his yawns, the use of his eyes, his furtive
or meaning glances, or his shrugs, the pitch of his
voice, his self-possession or embarrassment, his
air of candor or seeming levity. Rains v. Rains,
17 N.J.Misc. 310, 8 A.2d 715, 717.
DEMEASE. In old English law. Death.
DEMEMBRATION. In Scotch law. Maliciously
cutting off or otherwise separating one limb from
another. 1 Hume, 323; Bell.
DEMENS. One whose mental faculties are en-
feebled; one who has lost his mind; distinguished
from amens, one totally insane. 4 Coke, 128.
DEMENTED. Of unsound mind.
DEMENTENANT EN AVANT. L. Fr. From
this time forward. Kelham.
DEMENTIA. See Insanity.
DEMENTIA PRAECOX. A term used to include
a wide range of mental disorders which occur in
early life. It is also called adolescent insanity
and schizophrenia. Dementia praecox includes
three types, namely, primary dementia, catatonia,
and hebephrenia. Loftin v. Yancey, 182 Okl. 313,
77 P.2d 107, 108; Honrath v. New York Life Ins.
Co., 65 S.D. 480, 275 N.W. 258, 259, 112 A.L.R.
1272; Lee v. United States, C.C.A.Ga., 91 F.2d 326,
330. Also, see Insanity.
DEMESNE. Domain; dominical; held in one's
own right, and not of a superior; not allotted to
tenants.
In the language of pleading, own; proper; or-
iginal. Thus, son assault demesne, his own as-
sault, his assault originally or in the first place.
Ancient Demesne
See Ancient.
Demesne as of Fee
A man is said to be seised in his demesne as of
fee of a corporeal inheritance, because he has a
property, dominicum or demesne, in the thing
itself. But when he has no dominion in the thing
itself, as in the case of an incorporeal heredita-
ment, he is said to be seised as of fee, and not in
his demesne as of fee. 2 Bl. Comm. 106; Little-
ton, § 10; Barnet v. Ihrie, 17 Serg. & R. (Pa.)
196.
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DEMESNE
Demesne Lands
In English law. Those lands of a manor not
granted out in tenancy, but reserved by the lord
for his own uSe and occupation. Lands set apart
and appropriated by the lord for his own private
use, as for the supply of his table, and the main-
tenance of his family; the opposite of tenemental
lands. Tenancy and demesne, however, were not
in every sense the opposites of each other; lands
held for years or at will being included among
demesne lands, as well as those in the lord's ac-
tual possession. Spelman; 2 Bl. Comm. 90.
Demesne Lands of the Crown
That share of lands reserved to the crown at
the original distribution of landed property, or
which came to it afterwards by forfeiture or
otherwise. 1 Bl. Comm. 286; 2 Steph. Comm. 550.
Demesnial
Pertaining to a demesne.
DEMI. French. Half; the half. Used chiefly in
composition.
As to demi "Mark," "Official," "Vill," see those
titles.
DEMI-SANGUE, or DEMY-SANGUE. Half-blood.
DEMIDIETAS. In old records. A half or moiety.
DEMIES. In some universities and colleges this
term is synonymous with "scholars."
DEMINUTIO. In the civil law. A taking away;
loss or deprivation. See Capitis Deminutio.
DEMISE, v. In conveyancing. To convey or
create an estate for years or life; to lease. The
usual and operative word in leases: "Have grant-
ed, demised, and to farm let, and by these pres-
ents do grant, demise, and to farm let." 2 Bl.
Comm. 317; 1 Steph. Comm. 476; Co. Litt. 45a;
Carr v. King, 24 Cal.App. 713, 142 P. 131, 133.
DEMISE, n. In conveyancing. A conveyance of
an estate to another for life, for years, or at will;
most commonly for years; a lease. 1 Steph.
Comm. 475. Priddy v. Green, Tex.Civ.App., 220
S.W. 243, 248. Originally a posthumous grant;
commonly a lease or conveyance for a term of
years; sometimes applied to any conveyance, in
fee, for life, or for years. Pub. St. Mass. 1882, p.
1289.
"Demise" is synonymous with "lease" or "let." The use
of the term in a lease imports a covenant for quiet enjoy-
ment. Evans v. Williams, 291 Ky. 484, 165 S.W.2d 52, 55;
Sixty-Third & Halsted Realty Co. v. Chicago City Bank &
Trust Co., 299 III.App. 297, 20 N.E.2d 162, 167; and implies
a covenant by lessor of good right and title to make the
lease. Evans v. Williams, 291 Ky. 484, 165 S.W.2d 52, 55.
A charter of a barge without motive power ac-
companied by bargee paid by owner, The Nat. E.
Sutton, D.C.N.Y., 42 F.2d 229, 232; Harbor Tow-
boat Co. v. Lowe, D.C.N.Y., 47 F.Supp. 454, 456;
or of a tug or other vessel under circumstances
making charterer owner pro hac vice, Davison
Chemical Corporation v. The Henry W. Card, D.C.
N.Y., 51 F.Supp. 380, 382; Conners Marine Co. v.
Wathen, D.C.N.Y., 43 F.Supp. 283, 284. Under a
demise charter, there is but a hiring of the vessel,
under which no title passes to the charterer but
merely the right to possess and control it for a
limited period. McGahern v. Koppers Coal Co.,
C.C.A.Pa., 108 F.2d 652, 653.
The word is also used as a synonym for "de-
cease" or "death." In England it is especially
employed to denote the death of the sovereign.
—Demise and redemise. In conveyancing. Mu-
tual leases made from one party to another on
each side, of the same land, or something out of
it; as when A. grants a lease to B. at a nominal
rent (as of a pepper corn), and B. redemises the
same property to A. for a shorter time at a real,
substantial rent. Jacob; Whishaw.
—Demise of the crown. The natural dissolution
of the king is generally so called; an expression
which signifies merely a transfer of property.
By demise of the crown we mean only that, in
consequence of the disunion of the king's natural
body from his body politic, the kingdom is trans-
ferred or demised to his successor, and so the
royal dignity remains perpetual. 1 Bl. Comm.
249; Plowd. 234.
—Several demises. In English practice. In the
action of ejectment, it was formerly customary,
in case there were any doubt as to the legal es-
tate being in the plaintiff, to insert in the declara-
tion several demises from as many different per-
sons; but this was rendered unnecessary by the
provisions of the common-law procedure acts.
—Single demise. A declaration in ejectment
might contain either one demise or several. When
it contained only one, it was called a "declaration
with a single demise."
DEMISI. Lat. I have demised or leased. Demisi,
concessi, et ad firmam tradidi; have demised,
granted, and to farm let. The usual operative
words in ancient leases, as the corresponding Eng-
lish words are in the modern forms. 2 Bl. Comm.
317, 318; Koch v. Hustis, 113 Wis. 599, 87 N.W.
834.
DEMISSIO. L. Lat. A demise or letting. Chief-
ly used in the phrase ex demissione (on the de-
mise), which formed part of the title of the cause
in the old actions of ejectment, where it signified
that the nominal plaintiff (a fictitious person)
held the estate "on the demise" of, that is, by
a lease from, the real plaintiff.
DEMOBILIZATION. In military law. The dis-
missal of an army or body of troops from active
service.
DEMOCRACY. That form of government in
which the sovereign power resides in and is ex-
ercised by the whole body of free citizens, as dis-
tinguished from a monarchy, aristocracy, or oli-
garchy. According to the theory of a pure de-
mocracy, every citizen should partici p ate directly
in the business of governing, and the legislative
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DEMURRANT
assembly should comprise the whole people. But
the ultimate lodgment of the sovereignty being
the distinguishing feature, the introduction of the
representative system does not remove a govern-
ment from this type. However, a government of
the latter kind is sometimes specifically described
as a "representative democracy."
Town form of government constitutes pure
democracy as distinguished from representative
government. Commonwealth v. Town of Hud-
son, 315 Mass. 335, 52 N.E.2d 566, 572.
Democracy is loosely used of governments in which the
sovereign powers are exercised by all the people or ,a
large number of them, or specifically, in modern use, of a
representative government where there is equality of rights
without hereditary or arbitrary differences in rank or
privilege; and is distinguished from aristocracy. * * *
In modern representative democracies, as the United States
and France, though the governing body, that is, the elec-
torate, is a minority of the total population, the principle
on which the government is based is popular sovereignty,
which distinguishes them from aristocracies.  Webster's
New Int.Dict.
DEMOCRATIC. Of or pertaining to democracy,
or to a political party called "democratic," par-
ticularly, in the United States, the Democratic
party, which succeeded the Anti-federalist, or Re-
publican, party.
DEMOLISH. To throw or pull down; to raze;
to destroy the fabrication of; to pull to pieces;
hence to ruin; destroy. Star Mfg. Co. v. Quarr-
les, 172 Okl. 550, 46 P.2d 497, 498. To destroy
totally or to commence the work of total destruc-
tion with the purpose of completing the same. 50
L.J.M.C. 141. It is not synonymous with "re-
move." Durrett v. Woods, 155 La. 533, 99 So. 430,
431.
DEMONETIZATION. The disuse of a particular
metal for purposes of coinage. The withdrawal
of the value of a metal as money.
DEMONSTRATE. To teach by exhibition of
samples; to derive from admitted premises by
steps of reasoning which admit of no doubt; to
prove indubitably. Espenhain v. Barker, 121 Or.
621, 256 P. 766, 768. To show or prove value or
merits by operation. J. A. Fay & Egan Co. v.
Mims, 151 S.C. 484, 149 S.E. 246, 248.
DEMONSTRATIO. Lat. Description; addition;
denomination. Occurring often in the phrase,
"Falsa demonstratio non nocet," (a false descrip-
tion does not harm.) 2 Bla. Comm. 382, n.; 2
P. Wms. 140; 1 Greenl. Ev. § 291; Wigr. Wills
208, 233.
DEMONSTRATION. Description; pointing out.
That which is said or written to designate a thing
or person.
Evidence
Absolutely convincing proof. That proof which
excludes all possibility of error. Treadwell v.
Whittier, 80 Cal. 574, 22 P. 266, 5 L.R.A. 498, 13
Am.St.Rep. 175.
False Demonstration
See False Demonstration.
DEMONSTRATIVE EVIDENCE. That evidence
addressed directly to the senses without interven-
tion of testimony. Kabase v. State, 31 Ala.App.
77, 12 So.2d 758, 764.
Demonstrative evidence of negligence has been applied to
that kind of negligence which is usually expressed by res
ipsa loquitur.
DEMONSTRATIVE LEGACY. See Legacy.
DEMOTION. A reduction to lower rank or grade,
or to lower type of position, though holder's sal-
ary remains the same. Reed v. City Council of
City of Roseville, 60 Cal.App.2d 628, 141 P.2d 459,
463. Assistant fire chief reduced in rank, Mc-
Carthy v. Steinkellner, 223 Wis. 605, 270 N.W.
551; under Teachers' Tenure Act. Smith v. School
Dist. of Philadelphia, 334 Pa. 197, 5 A.2d 535, 539;
indefinite suspension without pay. City of Knox-
ville v. Smith, 176 Tenn. 73, 138 S.W.2d 422, 424.
DEMPSTER. In Scotch law. A doomsman. One
who pronounced the sentence of court. 1 How.
State Tr. 937.
DEMUR. To present a demurrer; to take an
exception to the sufficiency in point of law of a
pleading or state of facts alleged. See Demurrer.
DEMURRABLE. Subject to a demurrer. A plead-
ing, petition, or the like, is said to be demurrable
when it does not state such facts as support the
claim, prayer, or defense put forward. 5, Ch. Div.
979.
DEMURRAGE. In maritime law. The sum
which is fixed by the contract of carriage, or
which is allowed, as remuneration to the owner
of a ship for the detention of his vessel beyond
the number of days allowed by the charter-party
for loading and unloading or for sailing. Also
the detention of the vessel by the freighter beyond
such time. See 3 Kent, Comm. 203; 2 Steph.
Comm. 185. Continental Grain Co. v. Armour
Fertilizer Works, D.C.N.Y. 22 F.Supp. 49, 54;
Yone Suzuki v. Central Argentine Ry., C.C.A.N.
Y., 27 F.2d 795, 804. The term has been adopted
in railroad practice. Central R. Co. of N. J. v.
Gallena-Poole, Inc., 107 N.J.Eq. 267, 152 A. 251,
252; Sibley, L. B. & S. Ry. Co. v. Braswell Sand
& Gravel Co., La.App., 199 So. 427, 428.
The sum agreed to be paid to the ship for delay caused
without her fault, and which ordinarily does not begin to
run until the lay days have been used up. Earn Line S. S.
Co. v. Manati Sugar Co., C.C.A.N.Y., 269 F. 774, 776. The
amount agreed upon or allowed by law for unreasonable
detention. Clyde v. Wood, 179 N.Y.S. 252, 255, 189 App.
Div. 737; W. R. Grace & Co. v. Hansen, C.C.A.Wash., 273
F. 486, 496.
"Demurrage" is only an extended freight or reward to
the vessel, in compensation for the earnings she is improp-
erly caused to lose. Every improper detention of a vessel
may be considered a demurrage, and compensation under
that name be obtained for it. Donaldson v. McDowell,
Holmes, 290, Fed.Cas.No.3,985.
"Demurrage" is a claim for damages for failure of the
consignee to accept delivery of the goods. Little v. One
Cargo of Lumber, D.C.Fla., 2 F.2d 608, 609.
DEMURRANT. One who demurs; the party
who, in pleading, interposes a demurrer.
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DEMURRER
DEMURRER.
In Equity
An allegation of a defendant, which, admitting
the matters of fact alleged by the bill to be true,
shows that as they are therein set forth they are
insufficient for the plaintiff to proceed upon or to
oblige the defendant to answer; or that, for some
reason apparent on the face of the bill, or on
account of the omission of some matter which
ought to be contained therein, or for want of
some circumstances which ought to be attendant
thereon, the defendant ought not to be compelled
to answer to the whole bill, or to some certain
part thereof. Mitf. Eq. Pl. 107. See, also, Gold-
smith v. Mead Johnson & Co., 176 Md. 682, 7 A.2d
176, 179.
A general demurrer in equity, as a separate entity from
a demurrer on specific grounds, tests the equity of a bill
in the same manner as a motion to dismiss for want of
equity, and, in considering the bill on such a demurrer,
amendable defects are taken as amended. Johnson v.
Pugh, 193 So. 317, 239 Ala. 12.
By Federal Rules of Civil Procedure, demurrers, pleas
and exceptions for insufficiency of a pleading are abolished;
every defence in law shall be made by motion or by
answer; motions going to jurisdiction, venue, process, or
failure to state a claim are to be disposed of before trial,
unless the court orders otherwise.
In Pleading
The formal mode of disputing the sufficiency in
law of the pleading of the other side. In effect it
is an allegation that, even if the facts as stated
in the pleading to which objection is taken be
true, yet their legal consequences are not such
as to put the demurring party to the necessity of
answering them or proceeding further with the
cause. Green v. Carter, 28 Ohio App. 492, 162 N.
E. 814, 815; State v. Broad River Power Co., 177
S.C. 240, 181 S.E. 41; Mountain Park Institute v.
Lovill, 198 N.C. 642, 153 S.E. 114, 116; State v.
California Packing Corporation, 105 Utah 191, 145
P.2d 784.
A "demurrer" is not an absolute admission of
any fact but simply admits those facts that are
well pleaded. Commonwealth ex rel. Duff v.
Keenan, 347 Pa. 574, 33 A.2d 244, 248.
An objection made by one party to his opponent's plead-
ing, alleging that he ought not to answer it, for some
defect in law in the pleading. It admits the facts, and
refers the law arising thereon to the court. R. L. Davies
& Co. v. Blomberg, 185 N.C. 496, 117 S.E. 497.
It imports that the objecting party will not proceed,' but
will wait the judgment of the court whether he is bound
so to do. Co.Litt. 71b; Steph.P1. 61; Kramer v. Barth,
139 N.Y.S. 341, 344, 79 Misc. 80.
Classification and Varieties
A general demurrer is a demurrer framed in
general terms, without showing specifically the
nature of the objection, and which is usually re-
sorted to where the objection is to matter of sub-
stance. Steph.Pl. 140-142; 1 Chit.Pl. 663. See
Maryland Casualty Co. v. Arnold, 51 Ga.App. 562,
180 S.E. 906, 907.
Thus, a demurrer on the ground that the complaint sets
forth no cause of action, is a general demurrer, Alabama
Power Co. v. Curry, 228 Ala. 444, 153 So. 634; and a motion
to dismiss a bill on ground that there is no equity apparent
on the face thereof or that court has no jurisdiction is
treated as a general demurrer. People v. Sterling, 357 Ill.
354, 192 N.E. 229, 231.
A general demurrer to an indictment challenges only
matters of form and substance appearing -on its face. It
is one which raises an objection that averments are insuf-
ficient in law to support the action or defense without
specifying any particular cause or defect, and is sufficient
only to reach matters of substance. Mountain Park Insti-
tute v. Lovill, 198 N. C. 642, 153 S.E. 114, 116.
A motion to dismiss a complaint for failure to state a
claim upon which relief can be granted is equivalent to a
general demurrer. Louisiana Farmers' Protective Union v.
Great Atlantic & Pacific Tea Co. of America, D.C.Ark., 40
F.Supp. 897, 908.
A special demurrer goes merely to structure or
form of pleading which it attacks, and usually
only to some portion thereof, and must distinctly
specify wherein defect lies. Huff v. Palmer, 356
Ill. 563, 191 N.E. 199, 202; Cameron v. Evans
Securities Corp., 119 Cal.App. 164, 6 P.2d 272, 274;
It is one which excepts to the sufficiency of the
pleadings on the opposite side, and shows speci-
fically the nature of the objection, and the par-
ticular ground of the exception. 3 Bouv. Inst.
no. 3022. Dairy Regior Land Corporation v. Hard-
ing, Tex.Civ.App., 266 S.W. 181, 182; Johanson
v. Cudahy Packing Co., 107 Utah 114, 152 P.2d 98,
105.
While general demurrer on specific grounds relating to
different allegations of bill may be called "special demur-
rer," which attacks different parts of bill specifically, such
demurrer fails, if bill is good as pleading and remaining
allegations are sufficient to support relief prayed. Forcum
v. Symmes, 106 Fla. 510, 143 So. 630, 631.
A speaking demurrer is one which, in order to
sustain itself, requires the aid of a fact not ap-
pearing on the face of the pleading objected to,
or, in other words, which alleges or assumes the
existence of a fact not already pleaded, and which
constitutes the ground of objection and is con-
demned both by the common law and the code
system of pleading. Ellis v. Perley, 200 N.C. 403,
157 S.E. 29, 30. Ferris v. Union Sa y . Bank, 45
Ga.App. 544, 165 S.E. 450; Preston A. Blair Co. v.
Rose, 56 Idaho 114, 51 P.2d 209, 212; Metropolitan
Life Ins. Co. v. Perrin, 184 Miss. 249, 183 So. 917,
920; Town of Randolph v. Lyon, 106 Vt. 495, 175
A. 1, 2; Whaley v. First Nat. Bank, 229 Ala. 153,
155 So. 574.
A speaking demurrer is one which alleges some
new matter, not disclosed by the pleading against
which the demurrer is aimed and not judicially
known or legally presumed to be true. Blythe
v. Enslen, 219 Ala. 638, 123 So. 71, 73; Kansas
Life Ins. Co. v. First Bank of Truscott, Tex.Civ.
App., 47 S.W.2d 675, 677; In re Ferris' Estate,
Iowa, 14 N.W.2d 889, 894.
A parol demurrer (not properly a demurrer at
all) was a staying of the pleadings; a suspension
of the proceedings in an action during the non-
age of an infant, especially in a real action. Now
abolished. 3 Bl. Comm. 300.
Demurrer book. In practice. A record of the
issue on a demurrer at law, containing a tran-
script of the pleadings, with proper entries; and
intended for the use of the court and counsel on
the argument. 3 Bl. Comm. 317; 3 Steph. Comm.
581.
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DENIAL
Demurrer ore tenus. An objection to the in-
troduction of any evidence on the ground that the
complaint or petition fails to state a cause of ac-
tion. Cleveland v. Bateman, 21 N.M. 675, 158 P.
648, 652, Ann.Cas.1918E, 1011; Peerless Fixture
Co. v. Frick, Mo.App., 133 S.W.2d 1089, 1090. This
name is sometimes given to a ruling on an ob-
jection to evidence, but is not properly a demurrer
at all. Mandelert v. Land Co., 104 Wis. 423, 80
N.W. 726; It should be considered as a general
demurrer only. Dawkins v. People's Bank &
Trust Co., 117 Okl. 181, 245 P. 594, 596.
Demurrer to evidence. This proceeding is an-
alogous to a demurrer to a pleading. It is an ob-
jection or exception by one of the parties in an ac-
tion at law, to the effect that the evidence which
his adversary produced is insufficient in point of
law (whether true or not) to make out his case
or sustain the issue. Upon joinder in demurrer,
the jury is discharged, and the case is argued to
the court in bane, who gives judgment upon the
facts as shown in evidence. See 3 Bl. Comm. 372;
State v. Moody, 150 N.C. 847, 64 S.E. 431, 432.
The practice has been largely superseded by mo-
tions for nonsuit and directed verdict. Hopkins
v. Nashville, C. & St. L. Ry., 96 Tenn. 409, 34 S.W.
1029, 1034, 32 L.R.A. 354. Thus, a motion to non-
suit, Herrick v. Barzee, 96 Or. 357, 190 P. 141, 145;
Perkins v. Maiden, 57 Cal.App.2d 46, 134 P.2d 30,
34, a motion to dismiss at close of plaintiff's evi-
dence for failure to prove essential facts, Mans-
field v. Reserve Oil Co., 38 N.M. 187, 29 P.2d 491,
492; Fewkes v. Borah, 376 Ill. 596, 35 N.E.2d 69,
72, have been held to be, and a defendant's motion
for a directed verdict, made at close of the evi-
dence, is equivalent to, a "demurrer to the evi-
dence" for insufficiency to sustain a verdict for
plaintiff. Mills v. Richardson, 126 Me. 244, 137
A. 689, 690. A motion to exclude evidence has the
effect of a demurrer to the evidence, the chief
points of difference being the stage of the pro-
ceeding at which each is available and the conse-
quences resulting from deferring the motion to
exclude. Thornhill v. Thornhill, 172 Va. 553, 2
S.E.2d 318, 319. For a discussion of the subject
see Hopkins v. Nashville, C. & St. L. R. R., 96
Tenn. 409, 34 S.W. 1029, 32 L.R.A. 354.
Demurrer to interrogatories. Where a witness
objects to a question propounded (particularly
on the taking of a deposition) and states his
reason for objecting or refusing to answer, it is
called a "demurrer to the interrogatory," though
the term cannot here be understood as used in its
technical sense. 2 Swanst. 194; Gresl. Eq. Ey,
61; 2 Atk. 524; 1 Y. & J. 132.
DEMY SANKE, DEMY SANGUE. Half-blood.
A corruption of demi-sang.
DEN. A valley. Blount. A hollow place among
woods. Cowell.
DEN AND STROND. In old English law. Lib-
erty for ships or vessels to run aground, or come
ashore (strand themselves). Cowell.
DENARIATE. In old English law. As much
land as is worth one penny per annum.
DENARII. An ancient general term for any sort
of petunia numerata, or ready money. The
French use the word "denier" in the same sense,
-payer de ses propres deniers.
DENARII DE CARITATE. In English law. Cus-
tomary oblations made to a cathedral church at
Pentecost.
DENARII S. PETRI. (Commonly called "Peter's
Pence.") An annual payment on St. Peter's feast
of a penny from every family to the pope, during
the time that the Roman Catholic religion was
established in England.
DENARIUS. The chief silver coin among the
Romans, worth 8d.; it was the seventh part of a
Roman ounce. Also an English penny. The den-
arius was first coined five years before the first
Punic war, B. C. 269. In later times a copper
coin was called "denarius." • Smith, Dict. Antiq.
DENARIUS DEL (Lat. "God's penny.") Earnest
money; money given as a token of the comple-
tion of a bargain. It differs from arrhce in this:
that arrhce is a part of the consideration, while
the denarius Dei is no part of it. The latter was
given away in charity; whence the name. 1 Du-
vergnoy, n. 132; 3 Duvergnoy, n. 49; Rupert. de
Jur., Denier a Dieu.
DENARIUS TERTIUS COMITATUS. In old
English law. A third part or penny of the county
paid to its earl, the other two parts being reserved
to the crown.
DENIAL. A traverse in the pleading of one party
of an allegation of fact set up by the other; a
defense. See Flack v. O'Brien, 43 N.Y.S. 854, 19
Misc. 399; Mott v. Baxter, 29 Colo. 418, 68 P. 220.
A deprivation, as the denial of a constitutional
right, U. S. v. Carolene Products Co., Ill., 58 S.Ct.
778, 783, 304 U.S. 144, 82 L.Ed. 1234, or a denial
of civil rights. State of New Jersey v. Weinberger,
D.C.N.J., 38 F.2d 298, 302. A refusal or re-
jection, as the denial of a claim on a war risk
policy by Veterans' Administration, U. S. v.
Green, C.C.A.Tenn., 84 F.2d 449, 450; Morris v.
U. S., C.C.A.Miss., 96 F.2d 731, 732, or of a claim
for workmen's compensation. Commercial Cas-
ualty Ins. Co. v. Hilton, Tex.Civ.App., 55 S.W.2d
120, or of probation. People v. Lopez, 43 Cal.
App.2d 854, 110 P.2d 140, 144. A disavowal. Peo-
ple v. Bell, 96 Cal.App. 503, 274 P. 393, 396; Mas-
sell v. Fourth Nat. Bank, 38 Ga.App. 601, 144 S.E.
806, 807.
General and Specific
In code pleading, a general denial is one which
puts in issue all the material averments of the
complaint or petition, and permits the defendant
to prove any and all facts tending to negative
those averments or any of them. Telford v. Iowa
Guarantee Mortg. Corp., 58 S.D. 261, 235 N.W. 663,
665. A specific denial is a separate denial applic-
able to one particular allegation of the complaint.
Gas Co. v. San Francisco, 9 Cal. 470; An answer
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DENIER
by way of a general denial is the equivalent of,
and substitute for, the general issue under the
common-law system of pleading. It gives to the
defendant the same right to require the plaintiff
to establish by proof all the material facts nec-
essary to show his right to a recovery as was
given by that plea. Kline v. Harris, 30 N.D. 421,
152 N.W. 687, 688, Ann.Cas.1917D, 1176.
DENIER. L. Fr. In old English law. Denial;
refusal. Denier is when the rent (being demand-
ed upon the land) is not paid. Finch, Law, b. 3,
c. 5.
DENIER A DIEU. In French law. Earnest mon-
ey; a sum of money given in token of the com-
pletion of a bargain. The phrase is a translation
of the Latin Denarius Dei, (q. v.).
DENIZATION. The act of making one a den-
izen; the conferring of the privileges of citizen-
ship upon an alien born. Cro. Jac. 540. See Den-
izen.
DENIZE. To make a man a denizen or citizen.
DENIZEN. In English law. A person who, being
an alien born, has obtained, ex donatione regis,
letters patent to make him an English subject,—
a high and incommunicable branch of the royal
prerogative. A denizen is in a kind of middle
state between an alien and a natural-born sub-
ject, and partakes of the status of both of these.
1 Bl. Comm. 374; 7 Coke 6; Ex parte Gilroy, D.C.
N.Y., 257 F. 110, 128.
The term is used to signify a person who, being an alien
by birth, has obtained letters patent making him an Eng-
lish subject. The king may denize, but not naturalize, a
man; the latter requiring the consent of parliament, as
under the naturalization act, 1870, 33 & 34 Vict. c. 14. A
denizen holds a position midway between an alien and a
natural-born or naturalized subject, being able to take
lands by purchase or devise, (which an alien could not
until 1870 do,) but not able to take lands by descent,
(which a natural-born or naturalized subject may do.)
Brown.
The denizen becomes a British subject from the date of
the letters while a naturalized person is placed in a posi-
tion equivalent to that of a natural-born subject; Dicey,
Confl.Laws 164.
The word is also used in this sense in South Carolina.
See McClenaghan v. McClenaghan, 1 Strob.Eq., S.C., 319,
47 Am. Dec. 532.
In American law. A dweller; a stranger ad-
mitted to certain rights in a foreign country or
as one who lives habitually in a country but is
not a native born citizen; one holding a middle
state between an alien and a natural born sub-
ject. United States ex rel. Zdunic v. Uhl, D.C.
N.Y., 46 F.Supp. 688, 691. One who has some
relation to the enemy nation which is not lost by
the alien's presence within the United States.
United States ex rel. Zdunic v. Uhl, C.C.A.N.Y.,
137 F.2d 858, 861; United States ex rel. D'Esquiva
v. Uhl, C.C.A.N.Y., 137 F.2d 903, 905.
Thus, one who lived and worked in Austria in 1938 at
time Germany obtained control of Austrian government,
and continued to live there until leaving for the United
States in 1939, at which time he was issued a German pass-
port, was a "denizen" of Germany, within Enemy Alien
Act. United States ex rel. Zdunic v. Uhl, D.C.N.Y., 47
F.Supp. 520.
A denizen, in the primary, but obsolete, sense
of the word, is a natural-born subject of a coun-
try. Co. Litt. 129a; Levy v. McCartee, 6 Pet. 102,
116, 8 L.Ed. 334.
DENMAN'S (LORD) ACT. An English statute,
for the amendment of the law of evidence, (6 & 7
Vict. c. 85,) which provides that no person offered
as a witness shall thereafter be excluded by
reason of incapacity, from crime or interest, from
giving evidence.
DENMAN'S (MR.) ACT. An English statute, for
the amendment of procedure in criminal trials,
(28 & 29 Vict. c. 18,) allowing counsel to sum up
the evidence in criminal as in civil trials, provided
the prisoner be defended by counsel.
DENOMBREMENT. In French feudal law. A
minute or act drawn up, on the creation of a fief,
containing a description of the fief, and all the
rights and incidents belonging to it. Guyot, Inst.
Feud. c. 3.
DENOMINATIO FIERI DEBET A DIGNIORI-
BUS. Denomination should be made from the
more worthy.
DENOMINATION. The act of naming. A society
of individuals known by the same name, usually
a religious society.
DENOMINATIONAL. adj. Of, or pertaining to,
a denomination; sectarian. Wesley Foundation
at Seattle v. King County, 185 Wash. 12, 52 P.2d
1247, 1250; Constitutional Defense League v. Wa-
ters, 308 Pa. 150, 162 A. 216, 217.
DENOUNCE. To declare (an act or thing) to
be a crime arid prescribe a punishment for it.
State v. De Hart, 109 La. 570, 33 So. 605. The
word is also used (not technically but popularly)
as the equivalent of "accuse" or "inform against."
The term is frequently used in regard to treat-
ies, indicating the act of one nation in giving no-
tice to another nation of its intention to terminate
an existing treaty between the two nations. The
French dënoncer means to declare, to lodge an
information against. Bellows, Fr. Diet,
DENOUNCEMENT.
In Mexican Mining Law
Denouncement is an application to the author-
ities for a grant of the right to work a mine,
either on the ground of new discovery, or on the
ground of forfeiture of the rights of a former
owner, through abandonment or contravention of
the mining law. Cent. Dict. See Castillero v. U.
S., 2 Black, 109, 17 L.Ed. 360; Stewart v. King, 85
Or. 14, 166 P. 55, 56.
A "denouncement" is an application for the acquisition
of land for mining purposes, under certain rules prescribed
by Mexican laws. The application is called the "denounce-
ment," and, when approved by the Mexican government,
is called "concession" or "title," sometimes "patent." It
is then a grant given by the government to use the land
applied for, for the purpose of mining, and is *called the
"title."  Winningham v. Dyo, Tex.Com.App., 48 S.W.2d
600, 603.
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DEPARTMENT
In Spanish and Mexican Law
A judicial proceeding for the forfeiture of land
held by an alien.
Though real property might be acquired by an alien in
fraud of the law,—that is, without observing its require-
ments,—he nevertheless retained his right and title to it,
but was liable to be deprived of it by the proper proceed-
ing of denouncement, which in its substantive character-
istics was equivalent to the inquest of office found, at com-
mon law. De Merle v. Mathews, 26 Cal. 477.
The "denouncement of a new work" is a pro-
ceeding to obtain an order of court, in the nature
of an injunction, against the construction of a
new building or other work, which, if completed,
would injuriously affect the plaintiff's property.
Von Schmidt v. Huntington, 1 Cal. 55.
DENSHIRING OF LAND. (Otherwise called
"burn-beating.") A method of improving land by
casting parings of earth, turf, and stubble into
heaps, which when dried are burned into ashes
for a compost. Cowell.
DENTIFRICE. Any preparation used for cleans-
ing the teeth. In re Edmand, Cust. & Pat.App.,
39 F.2d 723.
DENTIST. One whose business it is to diagnose
and treat imperfections or diseases of human
teeth. People v. Hewson, 181 App.Div. 212, 168
N.Y.S. 104. Defined by the California Dental Act
as any person who shall for remuneration per-
form an operation of any kind, or treat diseases
of the human teeth. Jacobs v. Board of Dental
Examiners of California, 189 Cal. 709, 209 P. 1006,
1007.
DENTISTRY. A special department of medical
science, dealing with the treatment of the diseases,
etc., of human teeth. Commonwealth v. Heller,
277 Pa. 539, 121 A. 558, 559. The term includes the
supplying of dentures, bridges and other artificial
substitutes to the user or prospective user there-
of. Curtis v. State, 78 Okl.Cr. 282, 147 P.2d 465,
468. Winner v. Kadow, 373 Ill. 192, 25 N.E.2d
882, 883.
DENUMERATION. The act of present payment.
DENUNCIA DE OBRA NUEVA. In Spanish law.
The denouncement of a new work; being a pro-
ceeding to restrain the erection of some new work,
as, for instance, a building which may, if com-
pleted, injuriously affect the property of the com-
plainant; it is of a character similar to the inter-
dicts of possession. Escriche; Von Schmidt v.
Huntington, 1 Cal. 63.
DENUNCIATION.
In the Civil Law
The act by which an individual informs a public
officer, whose duty it is to prosecute offenders,
that a crime has been committed. See 1 Bro.Civ.
Law 447; Ayliffe, Parerg. 210; Pothier, Proc.Cr.
sect. 2, § 2.
The giving of an information in the ecclesiastic-
al courts by one who was not the accuser.
In Scotch Practice
The act by which a person is declared to be a
rebel, who has disobeyed the charge. given on let-
ters of horning. Bell.
DENUNTIATIO. In old English law. A public
notice or summons. Bract. 202b.
DENY. To traverse. Perry v. Tumlin, 161 Ga.
392, 131 S.E. 70, 73. To refuse to grant a petition
or protest. Safeway Stores v. Brown, Em.App.,
138 F.2d 278, 280.
DEODAND. (L. Lat. Deo dandum, a thing to be
given to God.) In English law. Any personal
chattel which was the immediate occasion of the
death of any reasonable creature, and which was
forfeited to the crown to be applied to pious uses,
and distributed in alms by the high almoner. 1
Hale, P.C. 419; Fleta, lib. 1, c. 25; 1 Bl.Comm.
300; 2 Steph.Comm. 365. See Parker-Harris Co.
v. Tate, 135 Tenn. 509, 188 S.W. 54, L.R.A.1916F,
935.
DEOR HEDGE. In old English law. The hedge
inclosing a deer park.
DEPART. To divide or separate actively. The de-
parters of gold and silver were no more than the
dividers and refiners of those metals. Cowell.
To go away, especially with reference to per-
manent visits. Pezzoni v. Pezzoni, 38 Cal.App.
209, 175 P. 801, 802. To withdraw from. Pomeroy
v. National City Co., 209 Minn. 155, 296 N.W. 513,
517, 133 A.L.R. 766; City Co. of New York v.
Stern, C.C.A.Minn., 110 F.2d 601, 603. To depart,
as from the state, is not necessarily synonymous
with the phrase "leave the state," or the phrase
"absent from the state." Williams v. Williams, 57
Cal.App. 36, 206 P. 650, 652; Aronow v. Bishop,
112 Mont. 611, 120 P.2d 423, 424.
In Maritime Law
To leave a port; to be out of a port. To depart
imports more than to sail, or set sail. A warranty
in a policy that a vessel shall depart on or before
a particular day is a warranty not only that she
shall sail, but that she shall be out of the port
on or before that day. 3 Maule & S. 461; 3 Kent
Comm. 307, note. "To depart" does not mean
merely to break ground, but fairly to set forward
upon the voyage. Moir v. Assur. Co., 6 Taunt. 241;
Young v. The Orpheus, 119 Mass. 185; The Helen
Brown (D.C.) 28 F. 111.
In Pleading
To forsake or abandon the ground assumed in
a former pleading, and assume a new one. See
Departure.
DEPARTMENT. One of the territorial divisions
of a country. The term is chiefly used in this
sense in France, where the division of the country
into departments is somewhat analogous, both ter-
ritorially and for governmental purposes, to the
division of an American state into counties. The
United States have been divided into military de-
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DEPARTMENT
partments, including certain portions of the coun-
try. Parker v. U. S., 1 Pet. 293, 7 L.Ed. 150.
Generally, a branch or division of governmental
administration. Glendinning v. Curry, 153 Fla.
398, 14 So.2d 794, 802.
One of the divisions of the executive branch of
government. Used in this sense in the United
States, where each department is charged with
a specific class of duties, and comprises an or-
ganized staff of officials; e. g., the department of
state, department of war, etc.
With reference to state or municipal administration, a
"bureau" is merely a division of a department. In re
McLaughlin, 210 N.Y.S. 68, 72, 124 Misc. 766.
Also, a division of a business, or of something
comparable thereto. See State v. Arkansas Lum-
ber Co., 126 Ark. 107, 189 S.W. 671; U. S. v. Elgin,
J'. & E. Ry. Co., Ill., 56 S.Ct. 841, 298 U.S. 492, 80
L.Ed. 1300.
DEPARTMENT STORE. Generally, a store in
which a variety of merchandise is arranged in or
offered for sale from several departments or sec-
tions, but the term cannot be applied with any cer-
tainty to a particular business and is too indefinite
to be used as a classification for the purpose of
taxation. Barker Bros. v. City of Los Angeles,
10 Cal.2d 603, 76 P.2d 97.
DEPARTURE. A deviation or divergence, from
a standard rule or measurement. Hamilton Mfg.
Co. v. Tubbs Mfg. Co., D.C.Mich., 216 F. 401, 409.
From a permitted use of vehicle or route, Reddy-
Waldhauer-Maffett Co. v. Spivey, 53 Ga.App. 117,
185 S.E. 147, 148. Jeffries v. Jodawelky, 304 Mich.
421, 8 N.W.2d 121, 122. From employment or
work, United Employers Casualty Co. v. Barker,
Tex.Civ.App., 148 S.W.2d 260, 263; Hartford Ac-
cident & Indemnity Co. v. Cardillo, 112 F.2d 11, 15,
72 App.D.C. 52.
A variance between pleading and proof. Kint-
ner v. U. S., C.C.A.Colo., 71 F.2d 961, 962.
In Maritime Law
A deviation from the course prescribed in the
policy of insurance.
In Pleading
The statement of matter in a replication, rejoin-
der, or subsequent pleading, as a cause of action or
defense, which is not pursuant to the previous
pleading of the same party, and which does not
support and fortify it. 2 Williams, Saund. 84a,
note 1; 2 Wils. 98; Co.Litt. 304a; Hanna v. Royce,
119 Or. 450, 249 P. 173, 175.
A departure occurs when party departs from cause or
defense first made and has recourse to another. Living-
ston v. Malever, 103 Fla. 200, 137 So. 113, 118; Clonts v.
State, 19 Ala.App. 130, 95 So. 562; Northwestern Nat. Life
Ins. Co. v. Ward, 56 Okl. 188, 155 P. 524, 525; Burrell v.
Masters, 65 Colo. 310, 176 P. 316, 317. Or, in other words,
when the second pleading contains matter not pursuant to
the former, and which does not support and fortify It.
Hence a departure obviously can never take place till the
replication. Steph.Pl. 410. Each subsequent pleading must
pursue or support the former one; i. e., the replication
must support the declaration, and the rejoinder the plea,
without departing out of it. 3 Bl.Comm. 310. An amend-
ment to a petition changing the cause of action is not,
technically, a "departure." King v. Milner, 63 Colo. 407,
167 P. 957, 960; MacGerry v. Rodgers, 144 Wash. 375, 258
P. 314, 315.
DEPARTURE IN DESPITE OF COURT. In old
English practice. The tenant in a real action,
having once appeared, was considered as con-
structively present in court until again called
upon. Hence if, upon being demanded, he failed
to appear, he was said to have "departed in despite
[i. e., contempt] of the court." Co.Litt. 139a; 8
Co. 62a; 1 Rolle, Abr. 583; Metc.Yelv. 211.
DEPASTURE. In old English law. To pasture.
"If a man depastures unprofitable cattle in his
ground." Bunb. 1, case 1.
DEPECULATION. A robbing of the prince or
commonwealth; an embezzling of the public treas-
ure.
DEPENDABLE, adj. Trustworthy or reliable, An-
derson v. Wyoming Development Co., 60 Wyo. 417,
154 P.2d 318, 340; Evidence, Taylor v. Latimer,
D.C.Mo., 47 F.Supp. 236, 238.
DEPENDENCE. A state of looking to another
for support, maintenance, food, clothing, comfort
and protection of a home and care. Central Life
Assur. Soc. (Mutual) v. Gray, Tex., 32 S.W.2d 259,
261; Soderstrom v. Missouri Pac.. R. Co., Mo.App.,
141 S.W.2d 73, 79.
DEPENDENCY. A territory distinct from the
country in which the supreme sovereign power
resides, but belonging rightfully to it, and subject
to the laws and regulations which the sovereign
may think proper to prescribe. U. S'. v. The Nan-
cy, 3 Wash.C.C. 286, Fed.Cas.No.15,854; Posadas
v. National City Bank of N. Y., Phil.Islands,
56 S.Ct. 349, 350, 296 U.S. 497, 80 L.Ed. 351.
It differs from a colony, because it is not set-
tled by the citizens of the sovereign or mother
state; and from possession, because it is held by
other title than that of mere conquest.
A relation between two persons, where one is
sustained by another or looks to or relies on aid
of another for support or for reasonable neces-
saries consistent with dependent's position in life.
Peterson v. Industrial Commission, 331 Ill. 254, 162
N.E. 846, 847.
DEPENDENT, n. One who derives support from
another; Milkovich v. Industrial Comm., 91 Utah,
498, 64 P.2d 1290, 1293; Texas Employers Ins.
Ass'n v. Arnold, Tex.Civ.App., 62 S.W.2d 609, 611;
not merely persons who derive a benefit from the
earnings of the deceased; [1899] 1 Q.B. 1005;
Havey v. Erie R. Co., 88 N.J.Law, 684, 96 A. 995,
996. One who depends on or is sustained by an-
other, or who relies on another for support or
favor. King v. Illinois Steel Corporation, 92 Ind.
App. 456, 176 N.E. 161, 162.
DEPENDENT, adj. Deriving existence, support,
or direction from another; conditioned, in respect
to force or obligation, upon an extraneous act or
fact.
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DEPORTATION
Under a statute relating to dependent children, "depend-
ent" is synonymous with "neglected," but not with "delin-
quent." People v. Ellis, 185 Ill.App. 417, 420; Durres v.
Deckard, 105 Ind.App. 674, 17 N.E.2d 481, 484.
Under a California juvenile act, a "dependent person" is
one under the age of 21 years who is in danger of growing
up to lead an idle, dissolute, or immoral life. People v.
Cruse, 24 Cal.App. 497, 141 P. 936.
Dependent conditions. Mutual covenants which
go to the whole consideration on both sides. Long
v. Addix, 184 Ala. 236, 63 So. 982, 984; Palmer v.
Fox, 274 Mich. 252, 264 N.W. 361, 104 A.L.R. 1057.
Dependent contract. One which depends or is
conditional upon another. One which it is not
the duty of the contractor to perform until some
obligation contained in the same agreement has
been performed by the other party. Ham. Parties,
17, 29, 30, 109.
Dependent covenant. See Covenant.
Dependent promise. One which it is not the
duty of the promisor to perform until some ob-
ligation contained in the same agreement has been
performed by the other party. Hamm.Partn. 17,
29, 30, 109; Harr.Const. 152.
DEPENDENT RELATIVE REVOCATION. The
doctrine which regards as mutually dependent the
acts of one destroying a will and thereupon sub-
stituting another instrument for distribution of es-
tate, when both acts are result of one plan, so that,
if second act, through incompleteness or other de-
fect, fails to accomplish its intended purpose, and
it thereby becomes evident that testator was misled
when he destroyed his will, act of destruction is
regarded as bereft of intent of revocation and way
for probate of destroyed will is opened. Flanders
v. White, 142 Or. 375, 18 P.2d 823, 827; In re
Nelson's Estate, 183 Minn. 295, 236 N.W. 459,
46L
DEPENDING. In practice. Pending or undeter-
mined; in progress. See 5 Coke, 47.
Under a statute, 28 U.S.C.A. § 1781, note, permitting the
taking of testimony by deposition de bene esse, a cause is
"depending" from the time of the issuance of the original
writ. Oklahoma Gas & Electric Co. v. Bates Expanded
Steel Truss Co., D.C.Del., 296 F. 281, 283.
In patent law. A convenient means of saying
that the parts of a device were so attached as to
have a right-angle relationship to each other, not
a gravitational hanging of one part upon another.
Alemite Mfg. Corporation v. Rogers Products Co.,
C.C.A.N.J., 42 F.2d 648, 651.
DEPESAS. In Spanish-American law. Spaces of
ground in towns reserved for commons or public
pasturage. 12 Pet. 443, note, 9 L.Ed. 1150.
DEPLETABLE ECONOMIC INTEREST. The in-
terest in mineral land which is subject to deple-
tion by the removal of the minerals by operation
of an oil well, mine, or the like. 26 U.S.C.A.Int.
Rev.Code § 114. Spalding v. U. S., C.C.A.Cal., 97
F.2d 697, 700; U. S. v. Spalding, C.CA.Cal.,, 97
F.2d 701, 704.
DEPLETE. To reduce or lessen, as by use, ex-
haustion, or waste. McKnight v. U. S., C.C.A.Cal.,
78 F.2d 931, 933.
DEPLETION. An emptying, exhausting or wast-
ing of assets. Arkansas-Louisiana Gas Co. v. City
of Texarkana, D.C.Ark., 17 F.Supp. 447, 460.
For tax purposes, a return of capital, not a spe-
cial bonus for enterprise. Untermyer v. Commis-
sioner of Internal Revenue, C.C.A., 59 F.2d 1004.
A reduction during taxable year of oil, gas or other
mineral deposits or reserves as result of produc-
tion. Darby-Lynde Co. v. Alexander, C.C.A.Okl.,
51 F.2d 56.
DEPOLYMERIZATION. In connection with the
devulcanizing of vulcanized rubber, the act of
breaking into smaller aggregations the rubber
molecules, which consist of hydrogen and carbon,
thus rendering the waste rubber plastic. Phila-
delphia Rubber Works Co. v. United States Rub-
ber Reclaiming Works, D.C.N.Y., 225 F. 789, 791.
DEPONE. In Scotch practice. To depose; to
make oath in writing.
DEPONENT. In practice. One who deposes (that
is, testifies or makes oath, now in writing) to the
truth of certain facts; one who gives under oath
testimony which is reduced to writing; one who
makes oath to a written statement. The party
making an affidavit is generally so called, though
in the United States the term "affiant" is also
commonly applied to such party, the terms, when
used with reference to one making an affidavit,
are synonymous. Walden v. Crego's Estate, 238
Mich. 564, 285 N.W. 457, 461.
The word "depone," from which is derived "deponent,"
has relation to the mode in which the oath is administered,
(by the witness placing his hand upon the book of the
holy evangelists,) and not as to whether the testimony is
delivered orally or reduced to writing. "Deponent" is
included in the term "witness," but "witness" is more
general. Bliss v. Shuman, 47 Me. 248.
DEPONER. In old Scotch practice. A deponent.
3 How. State Tr. 695.
DEPOPULATIO AGRORUM. In old English law.
The crime of destroying, ravaging, or laying
waste a country. 2 Hale, P. C. 333; 4 Bl.Comm.
373.
DEPOPULATION. In old English law. A species
of waste by which the population of the kingdom
was diminished. Depopulation of houses was a
public offense. 12 Coke, 30, 31.
DEPORTATIO. Lat. In the civil law. A kind
of banishment, where a condemned person was
sent or carried away to some foreign country,
usually to an island, (in insulam deportatur,) and
thus taken out of the number of Roman citizens,
DEPORTATION. Banishment to a foreign coun-
try, attended with confiscation of property and
deprivation of civil rights. A punishment derived
from the deportatio (q. v.) of the Roman law, and
still in use in France.
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DEPORTATION
In American Law
The removal or sending back of an alien to the
country from which he came, the removal from
the country of an alien considered inimical to pub-
lic welfare; the removal of an alien out of the
country simply because his presence is deemed
inconsistent with the public welfare, and without
any punishment being imposed or contemplated.
Yonejiro Nakasuji v. Seager, D.C.Cal., 3 F.Supp.
410, 413.
"The removal of an alien out of the country, simply
because his presence is deemed inconsistent with the pub-
lic welfare, and without any punishment being imposed or
contemplated, either under the laws of the country out of
which he is sent, or under those of the country to which
he is. taken." It differs from transportation, which is by
way of punishment of one convicted of an offence against
the laws of the country; and from extradition (q. v.),
which is the surrender to another country of one accused
of an offence against its laws, there to be tried, and, if
found guilty, punished. Fong Yue Ting v. U. S., 149 U.S.
698, 13 S.Ct. 1016, 37 L. Ed. 905.
"Deportation," as distinguished from "exclusion," is
depriving a person already in the United States of a privi-
lege which he, at least at the time, is enjoying ; whereas
"exclusion" is the denial of entry, and does not deprive
one of any liberties he had theretofore enjoyed. Ex parte
Domingo Corypus, D.C., 6 F.2d 336.
In Roman Law
A perpetual banishment, depriving the banished
of his rights as a citizen; it differed from relega-
tion (q. v.) and exile, (q. v.) 1 Brown, Civil &
Adm. Law, 125, note; Inst. 1, 12, 1, and 2; Dig.
48, 22, 14, 1,
DEPOSE. To deprive an individual of a public
employment or office against his will. Wolfflus,
Inst. § 1063. The term is usually applied to the
deprivation of all authority of a sovereign.
In Modern Usage
To make a deposition; to give evidence in the
shape of a deposition; to make statements which
are written down and sworn to; to give testimony
which is reduced to writing by a duly-qualified
officer and sworn to by the deponent. To say (in
a deposition) under oath. Webb v. Iowa-Nebraska
Coal Co., 198 Iowa 776, 200 N.W. 225, 226. To bear
witness, to state of oath, or give testimony. Fa-
vello v. Bank of America Nat. T. & S. Ass'n, 24
Cal.App.2d 342, 74 P.2d 1057, 1059.
In Practice
In ancient usage, to testify as a witness; to
give evidence under oath.
DEPOSIT, v. To commit to custody, or to lay
down; to place; to put; to let fall (as sediment) ;
Jefferson County ex rel. Grauman v. Jefferson
County Fiscal Court, 273 Ky. 674, 117 S.W.2d 918,
924; to lodge for safe-keeping or as a pledge, to
intrust to the care of another. White v. Greenlee,
330 Mo. 135, 49 S.W.2d 132, 134.
DEPOSIT, n. A naked bailment of goods to be
kept for the depositor without reward, and to be
returned when he shall require it. Jones, Bailm.
36, 117; Rozelle v. Rhodes, 116 Pa. 129, 9 Atl. 160,
2 Am.St.Rep. 591; Occidental Life Ins. Co. v. Ro-
gan, C,C.A.Cal., 141 F.2d 1011, 1012.
A bailment of goods to be kept by the bailee without
reward, and delivered according to the object or purpose
of the original trust. Story, Bailm. § 41; Elbert Sales
Co. v. Granite City Bank, 55 Ga.App. 835, 192 S.E. 66, 67.
In general, an act by which a person receives the prop-
erty of another, binding himself to preserve it and return
it in kind. Henry Rose Mercantile & Mfg. Co. v. Stearns,
159 La. 957, 106 So. 455, 458.
The delivery of chattels by one person to another to keep
for the use of the bailor.
The giving of the possession of personal property by one
person to another, with his consent, to keep for the use
and benefit of the first or of a third person. Moumal v.
Parkhurst, 89 Or. 248, 173 P. 669, 671.
Something intrusted to the care of another, either for a
permanent or a temporary disposition. Davidson v. U. S.,
C.C.A.Pa., 292 F. 750, 751, aff. U. S. v. Davidson, D.C.Pa.,
285 F. 661.
Also, money lodged with a person as an earnest
or security for the performance of some contract,
to be forfeited if the depositor fails in his under-
taking. It may be deemed to be part payment,
and to that extent may constitute the purchaser
the actual owner of the estate. Larson v. Metcalf,
201 Iowa, 1208, 207 N.W. 382, 384, 45 A.L.R. 344.
Classification
According to the classification of the civil law, deposits
are of the following several sorts : (1) Necessary, made
upon some sudden emergency, and from some pressing
necessity; as, for instance, in case of a fire, a shipwreck,
or other overwhelming calamity, when property is con-
fided to any person whom the depositor may meet without
proper opportunity for reflection or choice, and thence it
is called "miserabile depositum." (2) Voluntary, which
arises from the mere consent and agreement of the parties.
Dig. 16, 3, 2; Story, Bailm. § 44. The common law has
made no such division.
There is another class of deposits called "involuntary,"
which may be without the assent or even knowledge of
the depositor ; as lumber, etc., left upon another's land by
the subsidence of a flood. An "involuntary" deposit is one
made by the accidental leaving or placing of personal prop-
erty in the possession of any person without negligence on
the part of the owner. Copelin v. Berlin Dyeworks
Laundry Co., 168 Cal. 715, 144 P. 961, 963, L.R.A.1915C,
712.
The civilians again divide deposits into "simple depos-
its," made by one or more persons having a common inter-
est, . and "sequestrations'," made by one or more persons,
each of whom has a different and adverse interest in con-
troversy touching it; and these last are of two sorts,-
"conventional," or such as are made by the mere agree-
ment of the parties without any judicial act; and "judi-
cial," or such as are made by order of a court in the
course of some proceeding. Thus, under Louisiana stat-
utes, it is said that the difference between "sequestration"
and "deposit" is that the former may have for its object
both movable and immovable property, while the latter is
confined to movables. Raines v. Dunson, 145 La. 1011, 83
So. 224, 226.
There is another class of deposits called "irregular," as
when a person, having a sum of money which he does not
think safe in his own hands, confides it to another, who is
to return to him, not the same money, but a like sum when
he shall demand it. Poth. du Depot. 82, 83; Story, Bailm.
§ 84. A regular deposit is a strict or special' deposit; a
deposit which must be returned in specie; e., the thing
deposited must be returned. A quasi deposit is a kind of
implied or involuntary deposit, which takes place where a
party comes lawfully to the possession of another person's
property, by finding it. Story, Bailm. § 85. Particularly
with reference to money, deposits are also classed as gen-
eral or spacial. A general deposit is where the money
deposited is not itself to be returned, but an equivalent in
money (that is, a like sum) is to be returned. It is equiva-
lent to a loan, and the money deposited becomes the prop-
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DEPOSITO
erty of the depositary. City of Canby v. Bank of Canby,
192 Minn. 571, 257 N.W. 520.
A special deposit is a deposit in which the identical thing
deposited is to be returned to the depositor. The par-
ticular object of this kind of deposit is safekeeping. Koet-
ting v. State, 88 Wis. 502, 60 N.W. 822. Marine Bank v.
Fulton Bank, 69 U.S. 252, 2 Wall. 252, 17 L.Ed. 785. In
banking law, this kind of deposit is contrasted with a
"general" deposit, as above; but in the civil law it is the
antithesis of an "irregular" deposit. A gratuitous or naked
deposit is a bailment of goods to be kept for the depositor
without hire or reward on either side, or one for which
the depositary receives no consideration beyond the mere
possession of the thing deposited. Properly and originally,
all deposits are of this description; for according to the Ro-
man law, a bailment of goods for which hire or a price is
to be paid, is not called "depositum" but "locatio." If
the owner of the property pays for its custody or care, it
is a "locatio custodies;" if, on the other hand, the bailee
pays for the use of it, it is "locatio rei." (See Locatio.)
But in the modern law of those states which have been In-
fluenced by the Roman jurisprudence, a gratuitous or nak-
ed deposit is distinguished from a "deposit for hire," in
which the bailee is to be paid for his services in keeping
the article. There is also a specific deposit, which exists
where money or property is given to a bank for some
specific and particular purpose, as a note for collection,
money to pay a particular note, or property for some
other specific purpose. Officer v. Officer, 120 Iowa 389, 94
N.W. 947, 98 Am. St. 365.
In Banking Law
The act of placing or lodging money in the cus-
tody of a bank or banker, for safety or conven-
ience, to be withdrawn at the will of the depositor
or under rules and regulations agreed on. Also,
the money so deposited, or the credit which the
depositor receives for it. State Banking Board v.
James, Tex.Civ.App., 264 S.W. 145, 149.
"Deposit," according to its commonly accepted and gen-
erally understood meaning among bankers and by the
public, includes not only deposits payable on demand and
subject to check, but deposits not subject ,to check, for
which certificates, whether interest-bearing or not, may
be issued, payable on demand, or on certain notice, or at
a fixed future time. Jones v. O'Brien, 58 S.D. 213, 235 N.
W. 654, 659.
In Insurance Law
The delivery by a life insurance company of
securities to state commissioner of insurance as
required by statutes. Central Life Assur. Soc. v.
Birmingham, D.C.Iowa, 48 F.Supp. 863, 865.
In Mining
A quantity of ore or mineral substances occur-
ring naturally in the earth; as, a deposit of gold,
oil, etc.  See Colorado Gold Dredging Co. v.
Stearns-Roger Mfg. Co., 60 Colo. 412, 153 P. 765.
In General
Deposit account. An account of sums lodged
with a bank not to be drawn upon by checks, and
usually not to be withdrawn except after a fixed
notice.
Deposit company. A company whose business
is the safe-keeping of securities or other valuables
deposited in boxes or safes in its building which
are leased to the depositors.
Deposit of title-deeds. A method of pledging
real property as security for a loan, by placing
the title-deeds of the land in the keeping of the
lender as pledgee.
Deposit slip. An acknowledgment that the
amount named therein has been received by the
bank; it is a receipt intended to furnish evidence
as between the depositor and depositary that on a
given date there was deposited the sum named
therein, the time of deposit, and amount deposited,
being also shown. In re Ruskay, C.C.A.N.Y., 5
F.2d 143, 147.
DEPOSITARY. The party receiving a deposit;
one with whom anything is lodged in trust, as "de-
pository" is the place where it is put. A trustee;
fiduciary; one to whom goods are bailed to be
held without recompense. Stand. Diet. The ob-
ligation on the part of the depositary is that he
keep the thing with reasonable care, and, upon
request, restore it to the depositor, or otherwise
deliver it, according to the original trust. Brun-
ner v. Edwards, 337 Pa. 513, 12 A.2d 36, 37.
DEPOSITATION. In Scotch law. Deposit or de
positum, the species of bailment so called. Bell.
DEPOSITION. The testimony of a witness taken
upon interrogatories, not in open court, but in
pursuance of a commission to take testimony is-
sued by a court, or under a general law on the
subject, and reduced to writing and duly authen-
ticated, and intended to be used upon the trial of
an action in court. It is sometimes used as sy-
nonymous with "affidavit" or "oath," but its techni-
cal meaning does not include such terms. State
v. Lord, 42 N.M. 638, 84 P.2d 80, 94.
A written declaration under oath, made upon
notice to the adverse party for the purpose of en-
abling him to attend and cross-examine; or upon
written interrogatories. N. S. Sherman Machine
& Iron Works v. R. D. Cole Mfg. Co., 51 Okl. 353,
151 P. 1181, 1182. It is the giving of notice to the
adverse party which especially distinguishes a dep-
osition from an affidavit. Zinner v. Louis Meyers
& Son, 181 Misc. 344, 43 N.Y.S.2d 319, 320.
The term sometimes is used in a special sense
to denote a statement made orally by a person
on oath before an examiner, commissioner, or
officer of the court, (but not in open court,) and
taken down in writing by the examiner or under
his direction. Sweet.
In Ecclesiastical law. The act of depriving a
clergyman, by a competent tribunal, of his cleri-
cal orders, to punish him for some offense and to
prevent his acting in future in his clerical charac-
ter. Ayl. Par. 206.
DEPOSITION DE BENE ESSE. Testimony to be
read at the trial, so far as relevant and competent,
as though the witness were present in court. Mil-
print, Inc., v. Macleod Laboratories, 127 N.J.L.
333, 22 A.2d 566, 567.
DEPOSITO. In Spanish law. Deposit; the spe-
cies of bailment so called. Schm. Civil Law, 193.
A real contract by which one person confides to
the custody of another an object on the condition
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DEPOSITOR
that it shall be returned to him whenever he
shall require it.
DEPOSITOR. One who makes a deposit.
In banking law, one who delivers and leaves
money with a bank on his order or subject to
check. Lummus Cotton Gin Co. v. Walker, 195
Ala. 552, 70 So. 754, 756; Austin v. Avant, Tex.
Civ.App., 277 S.W. 409, 410.
DEPOSITORY. The place where a deposit (q. v.)
is placed and kept.
Sometimes, also, a depositary; one with whom
something is deposited. Jones v. Marrs, 114 Tex.
62, 263 S.W. 570, 573.
United States depositories. Banks selected and
designated to receive deposits of the public funds
of the United States.
DEPOSITUM. Lat. In the civil law. One of the
forms of the contract of bailment, being a naked
bailment of goods to be kept for the use of the
bailor without reward. Coe v. Ricker, 214 Mass.
212, 101 N.E. 76, 78, 45 L.R.A.,N.S., 30, Ann.Cas.
1914B, 1178. See Deposit.
One of the four real contracts specified by Justinian, and
having the following characteristics : (1) The depositary or
depositee is not liable for negligence, however extreme,
but only for fraud, dolus; (2) the property remains in
the depositor, the depositary having only the possession.
Precarium and sequestre were two varieties of the depos-
itum.
DEPOT. A railroad freight or passenger station;
a place on the line of a railroad where passengers
may enter and leave the trains and where freight
is deposited for delivery; a place where the car-
rier is accustomed to receive merchandise, deposit
it, and keep it ready for transportation or delivery.
Missouri Pac. R. Co. v. Williamson, 195 Ark. 487,
112 S.W.2d 957, 958. Chesapeake & 0. Ry. Co. v.
Ricks, 146 Va. 10, 135 S.E. 685, 688.
A place for the deposit of goods; a warehouse,
or a storehouse. Weyman v. City of Newport, 153
Ky. 487, 156 S.W. lop, 111.
A place where military supplies or stores are
kept or troops assembled. U. S. v. Caldwell, 19
Wall. 264, 22 L.Ed. 114.
—Depot grounds. Station grounds. Atchison, T.
& S. F. Ry. Co. v. McCall, 48 Okl. 602, 150 P. 173,
174. The place where passengers get off and on
trains, where goods are loaded and unloaded, and
all grounds necessary, convenient, and actually
used for such purposes by the public and by the
railway company, including the place where cars
are switched and trains made up, also where
tracks are used for storing cars, and where the
public require open and free access to the railroad
for the purpose of such business. Prince v. Chi-
cago & N. W. Ry. Co., 165 Wis. 212, 161 N.W. 765,
766.
DEPOT. In French law. The depositum of the
Roman and the deposit of the English law. It is
of two kinds, being either (1) depot simply so
called, and which may be either voluntary or nec-
essary, and (2) sdquestre, which is a deposit made
either under an agreement of the parties, and to
abide the event of pending litigation regarding it,
or by virtue of the direction of the court or a
judge, pending litigation regarding it. Brown;
Civ.Code La. 2926.
DEPRAVE. To defame; vilify; exhibit contempt
for. In England it is a criminal offense to "de-
prave" the Lord's Supper or the Book of Common
Prayer. Steph.Crim.Dig. 99.
DEPRAVED MIND. An inherent deficiency of
moral sense and rectitude, equivalent to statutory
phrase "depravity of heart" defined as highest
grade of malice. Ramsey v. State, 114 Fla. 766,
154 So. 855.
A mind which may become inflamed by liquor and pas-
sion to such a degreP that it ceases to care for human life
and safety is a "depraved mind." State v. Weltz, 155
Minn. 143, 193 N.W. 42, 44.
DEPRECIATION. A fall in value; reduction of
worth. New York Life Ins. Co. v. Anderson, C.C.A.
N.Y., 263 F. 527, 529. The deterioration, or the loss
or lessening in value, arising from age, use, and
improvements, due to better methods. Boston &
• A. R. Co. v. New York Cent. R. Co., 256 Mass. 600,
153 N.E. 19, 23; Miles v. People's Telephone Co.,
166 Wis. 94, 163 N.W. 652, 655.
DEPRECIATION RESERVE. An account kept on
the books, as of a public utility, to offset the de-
preciation of the property due to time and use.
People ex rel. Adirondack Power & Light Corpora-
tion v. Public Service Commission, 193 N.Y.S. 186,
191, 200 App.Div. 268. It does not represent the
actual depreciation of its properties which is to
be deducted from the reproduction cost new to as-
certain the present value for rate purposes; but
only what observation and experience suggest as
likely to happen, with a margin over. Southern
Bell Telephone & Telegraph Co. v. Railroad Com-
mission of South Carolina, D.C.S.C., 5 F.2d 77, 96.
DEPREDATION. The act of plundering, robbing,
or pillaging. Deal v. U. S., 274 U.S. 277, 47 S.Ct.
613, 615, 71 L.Ed. 1045.
In French law. Pillage, waste, or spoliation of
goods, particularly of the estate of a decedent.
DEPRESSION. A period of economic stress; de-
flation; panic. Trust Co. of N. J. v. Jefferson
Trust Co., 14 N.J.Misc. 656, 186 A. 732; McCuiston
v. Haggard, 21 Tenn.App. 277, 109 S.W.2d 413.
A hole or hollow. Rice v. Kansas City, Mo.App.,
16 S.W.2d 659, 661.
DEPRIVATION. In English ecclesiastical law.
The taking away from a clergyman of his benefice
or other spiritual promotion or dignity, either by
sentence declaratory in the proper court for fit and
sufficient causes or in pursuance of divers penal
statutes which declare the benefice void for some
nonfeasance or neglect, or some malfeasance or
crime. 3 Steph.Comm. 87, 88; Burn, Ecc.Law, tit.
"Deprivation." See Ayliffe, Parerg. 206; 1 Bla.
Comm. 393. See Degradation.
In American law. A taking away; confiscation;
as the deprivation of a constitutional right. Thus
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a taking of property without due process of law;
Sundlun v. Zoning Board of Review of City of
Pawtucket, 50 R.I. 108, 145 A. 451, 454; or of lib-
erty. Lynch v. City of Muskogee, D.C.Okl., 47
F.Supp. 589, 592.
DEPRIVE. To take. The term has this meaning
in a constitutional provision that no person shall
be "deprived of his property" without due process
of law, and denotes a taking altogether, a seizure,
a direct appropriation, dispossession of the owner.
Brown v. City of Atlanta, 167 Ga. 416, 145 S.E.
855, 857. It connotes want of consent. Sandel v.
State, 104 S.E. 567, 571, 115 S.C. 168, 13 A.L.R.
1268.
DEPUTIZE. To appoint a deputy; to appoint or
commission one to act as deputy to an officer. In a
general sense, the term is descriptive of empower-
ing one person to act for another in any capacity
or relation, but in law it is almost always restricted
to the substitution of a person appointed to act
for an officer of the law.
DEPUTY. A substitute; a person duly authorized
by an officer to exercise some or all of the func-
tions pertaining to the office, in the place and stead
of the latter. Byrnes v. Windels, 265 N.Y. 403, 193
N.E. 248, 249. One appointed to substitute for an-
other with power to act for him in his name or
behalf. Saxby v. Sonnemann, 149 N.E. 526, 528,
318 Ill. 600; Waggoner v. State, 183 Miss. 510, 184
So. 633, 634.
A deputy differs from an assignee, in that an assignee
has an interest in the office itself, and does all things in
his own name, for whom his grantor shall not answer, ex-
cept in special cases; but a deputy has not any Interest in
the office, and is only the shadow of the officer in whose
name he acts. And there is a distinction in doing an act
by an agent and by a deputy. An agent can only bind his
principal when he does the act in the name of the princi-
pal. But a deputy may do the act and sign his own name,
and it binds his principal; for a deputy has, in law, the
whole power of his principal. Wharton.
Deputy consul. See Consul.
Deputy lieutenant. The deputy of a lord lieu-
tenant of a county in England.
Deputy sheriff. One appointed to act in the
place and stead of the sheriff in the official busi-
ness of the latter's office. A general deputy (some-
times called "undersheriff"; see Shirran v. Dallas,
21 Cal.App. 405, 132 P. 454, 458; Delfelder v. Teton
Land & Investment Co., 46 Wyo. 142, 24 P.2d 702,
is one who, by virtue of his appointment, has au-
thority to execute all the ordinary duties of the of-
fice of sheriff, and who executes process without
any special authority from his principal. A spe-
cial deputy, who is an officer pro hac vice, is one
appointed for a special occasion or a special serv-
ice, as, to serve a particular writ or to assist in
keeping the peace when a riot or tumult is expect-
ed or in progress. He acts under a specific and
not a general appointment and authority. Allen
v. Smith, 12 N.J.Law, 162; Wilson v. Russell, 4
Dak. 376, 31 N.W. 645.
Deputy steward. A steward of a manor may
depute or authorize another to hold a court; and
the acts done in a court so holden will be as legal
as if the court had been holden by the chief stew•
and in person. So an under steward or deputy
may authorize another as subdeputy, pro hac vice,
to hold a court for him; such limited authority
not being inconsistent with the rule delegatus
non potest delegare. Wharton.
Special deputy. One appointed to exercise some
special function or power of the official or person
for whom he is appointed. Saxby v. Sonnemann,
318 Ill. 600, 149 N.E. 526, 528.
DERAIGN, Apparently, literally, to confound, and
disorder, or to turn out of course, or displace; as
deraignment or departure out of religion, in St.
31 Hen. VIII. c. 6. In the common law, the word
is used generally in the sense of to prove; viz., to
deraign a right, deraign the warranty, etc. Glanv.
lib. 2, c. 6; Fitzh.Nat.Brev. 146. Perhaps this
word "deraign," and the word "deraignment," de-
rived from it, may be used in the sense of to
prove and a proving, by disproving of what is
asserted in opposition to truth and fact. Jacob.
It is used as referring to a decree "which deraigns
his title from a false source." Paxson v. Brown,
61 F. 874, 884, 10 C.C.A. 135.
DERAILER. A small but heavy iron device at-
tached to a rail which opens and closes over the
rail by a lever, so as to derail or turn off the track-
cars approaching the closed derailer from the ex-
pected direction. Brady v. Southern Ry. Co., 64
S.Ct. 232, 234, 320 U.S. 476, 88 L.Ed. 239.
DERAILMENT. The act of going off or the state
of being off the rails of a railroad. Graham v.
Insurance Co. of North America, 220 Mass. 230,
107 N.E. 915.
DERANGEMENT. See Insanity.
DERECHO. In Spanish law. Law or right. De-
recho comun, common law. The civil law is so
called. A right. Derechos, rights. Also, spe-
cifically, an impost laid upon goods or provisions,
or upon persons or lands, by way of tax or con.
tribution. Noe v. Card, 14 Cal. 576, 608.
DERELICT. Forsaken; abandoned; deserted;
cast away.
Personal property abandoned or thrown away
by the owner in such manner as to indicate that
hp intends to make no further claim thereto. 2
Bl.Comm. 9; 2 Reeve, Eng.Law, 9; Thompson v.
One Anchor and Two Anchor Chains,, D.C.Wis.,
221 F. 770, 772.
Land left uncovered by the receding of water
from its former bed. 2 Rolle, Abr. 170; 2 Bl,
Comm. 262; 1 Crabb, Real Prop. 109.
In Maritime Law
A boat or vessel found entirely deserted or
abandoned on the sea without hope or intention of
recovery or return by the master or crew, whether
resulting from wreck, accident, necessity, or vol-
untary abandonment. U. S. v. Stone, C.C.Tenn., 8
F. 232-243; Cromwell v. The Island City, 1 Black
Black's Law Dictionary Revised 4th Ed.-34
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DERELICT
121, 17 L.Ed. 70; The Hyderabad, D.C.Wis., 11 F.
749-754; The No. 105, Belcher Oil Co. v. Griffin,
C.C.A.Fla., 97 F.2d 425, 426; Mengel Box Co. v.
Joest, 127 Miss. 461, 90 So. 161, 163.
Quasi Derelict
When a vessel, without being abandoned, is no
longer under the control or direction of those on
board, (as where part of the crew are dead, and
the remainder are physically and mentally in-
capable of providing for their own safety,) she
is said to be quasi derelict. Sturtevant v. Nicho-
laus, 1 Newb.Adm. 449, Fed.Cas.No.13,578. When
the crew have left their vessel temporarily, with
the intention of returning to resume possession,
she is not technically a derelict, but is what may
be termed a "quasi derelict." The Alcazar, D.C.
N.C., 227 F. 633, 650.
DERELICTION. The gaining of land from the
water, in consequence of the sea shrinking back
below the usual water mark; the opposite of
alluvion (q. v.) Dyer, 326b; 2 Bl.Comm. 262; 1
Steph.Comm. 419; Linthicum v. Coan, 64 Md. 439,
2 A. 826, 54 Am.Rep. 775; Also, land left dry by
running water retiring imperceptibly from one of
its shores and encroaching on the other. Slattery
v. Arkansas Natural Gas Co., 138 La. 793, 70 So.
806. See Reliction; Accretion.
In the Civil Law
The voluntary abandonment of goods by the
owner, without the hope or the purpose of retun-
ing to the possession. Jones v. Nunn, 12 Ga. 473;
Livermore v. White, 74 Me. 456, 43 Am.Rep. 600.
"Dereliction" or "renunciation" of property at sea as
well as on land requires both the intention to abandon and
external action. The No. 105, C.C.A.Fla., 97 F.2d 425, 426.
Derivativa potestas non potest esse major prim-
itiva. Noy, Max.; Wing.Max. 66. The derivative
power cannot be greater than the primitive. The
power which is derived cannot be greater than
that from which it is derived. Finch.Law, b. 1,
c. 3, p. 11.
DERIVATIVE. Coming from another; taken
from something preceding; secondary; that which
has not its origin in itself, but owes its existence
to something foregoing. Anything obtained or
deduced from another. State v. Wong Fong, 75
Mont. 81, 241 P. 1072.
DERIVATIVE ACTION. A suit by a shareholder
to enforce a corporate cause of action. The cor-
poration is a necessary party, and the relief which
is granted is a judgment against a third person in
favor of the corporation. Price v. Gurney, Ohio,
65 S.Ct. 513, 516, 324 U.S. 100, 89 L.Ed. 776.
DERIVATIVE CONVEYANCES. Conveyances
which presuppose some other conveyance prece-
dent, and only serve to enlarge, confirm, alter, re-
strain, restore, or transfer the interest granted by
such original conveyance. They are releases, con-
firmations, surrenders, assignments, and defeas-
ances. 2 Bl.Comm. 324.
DERIVE. To receive, as from a -source or origin.
Crews v. Commissioner of Internal Revenue, C.C.
A.10, 89 F.2d 412, 416. To proceed from property,
sever from capital, however invested or employed,
and to come in, receive or draw 'by taxpayer for
his separate use, benefit, and disposal. Staples v.
United States, D.C.Pa., 21 F.Supp. 737, 739.
DERIVED. Received. Langstaff v. Lucas, D.C.,
9 F.2d 691, 693. See, also, Connell v. Harper, 202
Ky. 406, 259 S.W. 1017, 1019.
DEROGATION. The partial repeal or abolishing
of a law, as by a subsequent act which limits its
scope or impairs its utility and force. Distin-
guished from abrogation, which means the entire
repeal and annulment of a law. Dig. 50, 17, 102.
DEROGATORY CLAUSE. In a will, this is a sen-
tence or secret character inserted by the testator,
of which he reserves the knowledge to himself,
with a condition that no will he may make there-
after should be valid, unless this clause be insert-
ed word for word. This is done as a precaution
to guard against later wills being extorted by vio-
lence, or otherwise improperly obtained. By the
law of England such a clause would be void, as
tending to make the will irrevocable. Wharton.
Derogatur legi, cum pars detrahitur; abrogatur
legi, cum prorsus tollitur. To derogate from a
law is to take away part of it; to abrogate a law
is to abolish it entirely. Dig. 50, 17, 102.
DESAFUERO. In Spanish law. An irregular ac-
tion committed with violence against law, custom,
or reason.
DESAMORTIZACION. In Mexican law. The
desamortizacion of property is to take it out of
mortmain, (dead hands;) that is, to unloose it
from the grasp, as it were, of ecclesiastical or civil
corporations. The term has no equivalent in Eng-
lish. Hall, Mex.Law, § 749.
DESCEND. To pass by succession; as when the
estate vests by operation of law in the heirs im-
mediately upon the death of the ancestor. Tra-
hern v. Woolwine, 109 W.Va. 623, 155 S.E. 909,
910. The term, as used in some statutes, includes
an acquisition by devise. Cordon v. Gregg, 164
Or. 306, 101 P.2d 414, 415.
To pass down from generation to generation.
Weedin v. Chin Bow, C.C.A.Wash., 7 F.2d 369.
To go ;—often used as a word of transfer. Gor-
don v. Cadwalader, 164 Cal. 509, 130 P. 18, 20.
As used in wills, the word "descend" is often regarded as
a general expression equivajent to the words "go to" or
"belong to," and as indicating a passing of title by the
force of the will rather than of the statute. Klingman v.
Gilbert, 90 Kan. 545, 135 P. 682, 684; Carter v. Reserve
Gas Co., 84 W.Va. 741, 100 S.E. 738, 742.
DESCENDANT. One who is descended from an-
other; a person who proceeds from the body of
another, such as a child, grandchild, etc., to the
remotest degree. The term is the opposite of
"ascendant," (q. v.) Rasmusson v. Unknown Wife
of Hoge, 293 Ill. 101, 127 N.E. 356, 359; State v.
Yturria, 204 S.W. 315, 316, 109 Tex. 220, L.R.A.
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1918F, 1079. In the plural, the term means off-
spring or posterity in general; Carter Oil Co. v.
Scott, D.C.Okl., 12 F.2d 780, 783. Issue. Burkley
v. Burkley, 266 Pa. 338, 109 A. 687, 688; In re
Tinker's Estate, 91 Oki. 21, 215 P. 779, 781. Also,
all those to whom an estate descends, whether it
be in a direct or collateral line from the intestate.
Oakley v. Davey, 49 Ohio App. 113, 195 N.E. 406.
One on whom the law has cast the property
by descent. Smith v. Thom, 158 Ky. 655, 166 S.W.
182. An heir. Lee v. Roberson, 297 Ill. 321, 130
N.E. 774, 778. In this sense, the term is frequent-
ly held to include an adopted child. In re Cad-
well's Estate, 26 Wyo. 412, 186 P. 499, 501. For
"Family," see that title.
Descendants is a good term of description in a will, and
includes all who proceed from the body of the person
named; as grandchildren and great-grandchildren. Amb.
397; 2 Hil.Real Prop. 242.
Lineal Descendant
One who is in the line of descent from the an-
cestor. Green v. Hussey, 228 Mass. 537, 117 N.E.
798. Lawful issue. Sassier v. J. Connelly Const.
Co., 227 Mich. 251, 198 N.W. 989, 991. The term
may include an adopted child; Denton v. Miller,
110 Kan. 292, 203 P. 693, 694; who is as lawfully
in the line of descent as if placed there by birth;
Fisher v. Gardnier, 183 Mich. 660, 150 N.W. 358.
Contra: State v. Yturria, 109 Tex. 220, 204 S.W.
315, 316, L.R.A.1918F, 1079.
DESCENDER. Descent; in the descent. See For-
medon.
DESCENDIBLE. Capable of passing by descent,
or of being inherited or transmitted by devise,
(spoken of estates, titles, offices, and other prop-
erty.) Collins v. Smith, 105 Ga. 525, 31 S.E. 449.
DESCENT. Hereditary succession. Succession to
the ownership of an estate by inheritance, or by
any act of law, as distinguished from "purchase."
Title by descent is the title by which one person,
upon the death of another, acquires the real es-
tate of the latter as his heir at law. 2 Bl.Comm.
201; Adams v. Akerlund, 168 Ill. 632, 48 N.E.
454; In re Yahola's Heirship, 142 Okl. 79, 285 P.
946. The title by inheritance is in all cases called
descent, although by statute law the title is some-
times made to ascend.
"Descent" in its broadest sense signifies an inheritance
cast upon any one capable of receiving it, whether heir at
common law or not. Kicey v. Kicey, 114 N.J.Eq. 116, 168
A. 424, 426.
The division among those legally entitled there-
to of the real property of intestates.
Classification
Descents are of two sorts, lineal and collateral. Lineal
descent is descent in a direct or right line, as from father or
grandfather to son Dr grandson. In re Herrick's Estate,
273 N.Y.S. 803, 152 Misc. 9. Collateral descent is descent
in a collateral or oblique line, that is, up to the common
ancestor and then down from him, as from brother to
brother, or between cousins. Levy v. McCartee, 6 Pet. 112,
8 L.Ed. 334. They are also distinguished into mediate and
immediate descends. But these terms are used in different
senses. A descent may be said to be a mediate or immedi-
ate descent of the estate or right; or it may be said to be
mediate or immediate, in regard to the mediateness or im-
mediateness of the pedigree or consanguinity. Thus, a de-
scent from the grandfather, who dies in possession, to the
grandchild, the father being then dead, or from the uncle
to the nephew, the brother being dead, is, in the former
sense, in law, immediate descent, although the one is
collateral and the other lineal; for the heir is in the per,
and not in the per and cut. On the other hand, with
reference to the line of pedigree or consanguinity, a descent
is often said to be immediate, when the ancestor from
whom the party derives his blood is immediate, and with-
out any intervening link or degrees; and mediate, when
the kindred is derived from him mediante altero, another
ancestor intervening between them. Thus a descent in
lineals from father to son is in this sense immediate;
but a descent from grandfather to grandson, the father
being dead, or from uncle to nephew, the brother being
dead, is deemed mediate; the father and the brother being,
in these latter cases, the medium deferens, as it is called,
of the descent or consanguinity. Furenes v. Mickelson, 86
Iowa, 508, 53 N.W. 416.
Descent was denoted, in the Roman law, by the
term "successio," which is also used by Bracton,
from which has been derived the succession of
the Scotch and French jurisprudence.
Line of Descent
The order or series of persons who have de-
scended one from the other or all from a common
ancestor, considered as placed in a line of suc-
cession in the order of their birth, the line show-
ing the connection of all the blood-relatives.
Collateral line. A line of descent connecting
persons who are not directly related to each other
as ascendants or descendants, but whose relation-
ship consists in common descent from the same
ancestor.
Direct line. A line of descent traced through
those persons only who are related to each other
directly as ascendants or descendants. State ex
rel. Walton v. Yturria, 109 Tex. 220, 204 S.W. 315,
316, L.R.A.1918F, 1079.
Maternal line. A line of descent or relationship
between two persons which is traced through the
mother of the younger.
Paternal line. A similar line of descent traced
through the father.
For "Family," see that title.
DESCENT CAST. The devolving of realty upon
the heir on the death of his ancestor intestate.
Another name for what the older writers called
a "descent which tolls entry." When a person had
acquired land by disseisin, abatement, or intru-
sion, and died seised of the land, the descent of it
to his heir took away or tolled the real owner's
right of entry, so that he could only recover the
land by an action. Co.Litt. 237 b; Rap. & L. Dict.
DESCRIBE. To narrate, express, explain. Boyn-
ton Real Estate Co. v. Woodbridge Tp., 94 N.J.
Law, 226, 109 A. 514, 515. Of land, to give the
metes and bounds. Livingston v. Seaboard Air
Line R. Co., 100 S.C. 18, 84 S.E. 303.
DESCRIPTIO PERSONI. Lat. Description of
the person. By this is meant a word or phrase
used merely for the purpose of identifying or
pointing out the person intended, and not as an
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intimation that the language in connection with
which it occurs is to apply to him only in the of-
ficial or technical character which might appear
to be indicated by the word. . Forrester v. Cant-
ley, 227 Mo.App. 325, 51 S.W.2d 550, 551.
In wills, it frequently happens that the word heir is
used as a descriptio personce. A legacy "to the eldest son"
of A would be a designation of the person. See 1 Roper,
Leg. c. 2.
DESCRIPTION. A delineation or account of a
particular subject by the recital of its characteris-
tic accidents and qualities. Ayliffe, Pand. 60.
A written enumeration of items composing an
estate, or of its condition, or of titles or docu-
ments; like an inventory, but with more particu-
larity, and without involving the idea of an ap-
praisement.
An exact written account of an article, mechan-
ical device, or process which is the subject of an
application for a patent.
A method of pointing out a particular person by
referring to his relationship to some other person
or his character as an officer, trustee, executor,
etc.
That part of a conveyance, advertisement of
sale, etc., which identifies the land or premises in-
tended to be affected. Argyle v. Bonneville Irr.
Dist., 74 Utah, 480, 280 P. 722, 727.
A fair portrayal of the chief features of the pro-
posed law in words of plain meaning, so that it
can be understood by the persons entitled to vote.
Sawyer Stores v. Mitchell, 103 Mont. 148, 62 P.2d
342, 348; In re Opinion of the Justices, Mass., 9
N.E.2d 189, 192.
That part of affidavit for search warrant describ-
ing the place to be searched. Turner v. State, 39
Okl.Cr. 74, 263 P. 476.
DESCRIPTIVE. Containing a description; serv-
ing or aiming to describe; having the quality of
representing. Sawyer Stores v. Mitchell, 103
Mont. 148, 62 P.2d 342, 348.
Descriptive words are not susceptible of exclu-
sive adoption by any one as part of a corporate
name. Sterling Products Corporation v. Sterling
Products, D.C.N.Y., 43 F.Supp. 548, 550; are not
registerable under the Trade-Mark Act § 2; 15
U.S.C.A. § 1052. Judson Dunaway Corp. v. Hy-
gienic Products Corp., 178 F.2d 461; and cannot
ordinarily form the basis for an injunction against
their use by another on ground of unfair competi-
tion. Merlino v. Schmetz, 66 R.I. 425, 20 A.2d
266, 268.
DESECRATE. To violate sanctity of, to profane,
or to put to unworthy use. City of Shreveport v.
Harris, 178 La. 685, 152 So. 330.
The calling on householders after 10 a. m. on Sunday by
members of an organized religious order for purpose of
propagandizing their religious views by spoken and print-
ed words, however unwelcome to householders, did not,
in itself, constitute a desecration of the Sabbath. State v.
Mead, 230 Iowa 1217, 300 N.W. 523, 524.
DESERT. To leave or quit with an intention to
cause a permanent separation; to forsake utter-
ly; to abandon. It is essentially willful in nature.
Stevens v. Stevens, 304 Ill. 297, 136 N.E. 785, 787;
Stover v. Stover, 94 N.J.Eq. 703, 120 A. 788, 789.
DESERTER. As applied to seamen, one continu-
ally and intentionally absent from the ship, con-
stituting a quitting of the service of the vessel.
The Strathearn, D.C.Fla., 239 F. 583, 586. Com-
pare Mystic S. S. Co. v. Stromland, C.C.A.Va., 20
F.2d 342, 344; The Ella Pierce Thurlow, D.C.Va.,
18 F.2d 675, 676.
Under the regulations of the Navy Department, a "de-
serter" is one who is absent without leave and with a
manifest intention not to return, while a "straggler" is one
absent without leave, with the probability that he does
not intend to desert, but, if his absence continues for 10
days, he becomes a deserter. Reed v. United States, C.C.A.
N.Y., 252 F. 21, 22.
As applied to the matrimonial home, one who
by his words, conduct, demeanor, and attitude pro-
duces an intolerable condition which forces the
other spouse to withdraw from the joint habita-
tion to a more peaceful one. West v. West, 264
Ky. 826, 95 S.W.2d 789, 790.
DESERTION. The act by which a person aban-
dons and forsakes, without justification, or unau-
thorized, a station or condition of public or social
life, renouncing its responsibilities and evading
its duties.
A willful abandonment of an employment or du-
ty in violation of a legal or moral obligation.
Stoneburner v. Theodoratos, Cal.App., 30 P.2d
1001, 1003.
Constructive Desertion
That arising where an existing cohabitation is
put an end to by misconduct of one of the parties,
provided such misconduct is itself a ground for
divorce a vinculo or a mensa. Succhierelli v. Suc-
chierelli, 101 N.J.Eq. 30, 137 A. 839. See, also,
Hoffhines v. Hoffhines, 146 Md. 350, 126 A. 112,
113, 38 A.L.R. 332.
Obstinate Desertion
See that title.
In Maritime Law
The act by which a seaman deserts and aban-
dons a ship or vessel, in which he had engaged to
perform a voyage, before the expiration of his
time, and without leave. By desertion, in the mari-
time law, is meant, not a mere unauthorized ab-
sence from the ship without leave, but an unau-
thorized absence from the ship, with an intention
not to return to her service, or, as it is often ex-
pressed, animo non revertendi; that is, with an
intention to desert. The Cripple Creek, D.C.Pa.,
52 F.Supp. 710, 712; (strike) The Youngstown, C.
C.A.La., 110 F.2d 968, 970.
In Matrimonial and Divorce Law
An actual abandonment or breaking off of matri-
monial cohabitation, by either of the parties, and
a renouncing or refusal of the duties and obliga-
tions of the relation, with an intent to abandon
or forsake entirely and not to return to or resume
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DESIGNED
marital relations, occurring without legal justi-
fication either in the consent or the wrongful con-
duct of the other party. State v. Baker, 112 La.
801, 36 So, 703. Williams v. Williams, 29 N.E. 98,
130 N.Y. 193, 14 L.R.A. 220, 27 Am.St.Rep. 517.
The willful forsaking and desertion of duties
of parenthood, and leaving child in a dependent
condition. Bowling v. State, 62 Ga. 540, 8 S.E.2d
697,
In Military Law
An offense which consists in the abandonment
of his post and duties by a person commissioned
or enlisted in the army or navy, without leave and
with the intention not to return. Hollingsworth V.
Shaw, 19 Ohio St. 432, 2 Am.Rep. 411; In re
Sutherland, D.C., 53 F. 551. There is a difference
between desertion and simple "absence without
leave;" in order to constitute the former, there
must be an intention not to return to the service.
Hanson v. South Scituate, 115 Mass. 336. See De-
serter.
DESERVING. Worthy or meritorious, without
regard to condition or circumstances. In no sense
of the word is it limited to persons in need of as-
sistance, or objects which come within the class
of charitable uses. Nichols v. Allen, 130 Mass.
211, 39 Am.Rep. 445.
DESHONORA. In Spanish law. Dishonor; in-
jury; slander. Las Partidas, pt. 7, tit. 9, 1. 1, 6.
DESICCATE. To exhaust or remove moisture
from; dry thoroughly; especially to free from
moisture with view to preserving. In re Benner,
Cust. & Pat. App., 46 F.2d 383, 384,
DESIGN. To form plan or scheme of, conceive
and arrange in mind, originate mentally, plan out,
contrive. Also, the plan or scheme conceived in
mind and intended for subsequent execution, pre-
liminary conception of idea to be carried into ef-
fect by action, contrivance in accordance with pre-
conceived plan. State v. Pickus, 63 S.D. 209, 257
N.W. 284. A project, an idea. 3 H. & N. 301. See,
also, Designed.
As a term of art, the giving of a visible form to
the conceptions of the mind, or invention. Binns
v. Woodruff, 4 Wash.C.C. 48, Fed. Cas. No. 1,424.
In Evidence
Purpose or intention, combined with plan, or
implying a plan in the mind. Burrill, Circ.Ev. 331;
State v. Grant, 86 Iowa 216, 53 N.W. 120.
In Patent Law
The drawing or depiction of an original plan
or conception for a novel pattern, model, shape,
or configuration, to be used in the manufacturing
or textile arts or the fine arts, and chiefly of a
decorative or ornamental character. "Design pat-
ents" are contrasted with "utility patents," but
equally involve the exercise of the inventive or
originative faculty. Gorham Co. v. White, 14
Wall. 524, 20 L.Ed. 731; Western Electric Manu-
facturing Co. v. Odell, D.C.I1L, 18 F. 321; Binns v.
Woodruff, 3 Fed.Cas. 424; Henderson v. Tompkins,
C.C.Mass., 60 F. 758.
"Design, in the view of the patent law, is that character-
istic of a physical substance which, by means of lines,
images, configuration, and the like, taken as a whole,
makes an impression, through the eye, upon the mind of
the observer. The essence of a design resides not in the
elements individually, nor in their method of arrangement,
but in the tout ensemble—in that indefinable whole that
awakens some sensation in the observer's mind. Impres-
sions thus imparted may be complex or simple; * * *.
But whatever the impression, there is attached in the
mind of the observer, to the object observed, a sense of
uniqueness and character." Pelouze Scale & Mfg. Co. v.
American Cutlery Co., 102 F. 916, 919, 43 C.C.A. 52; Bay-
ley & Sons v. Braunstein Bros. Co., D.C.N.Y., 246 F. 314,
317.
DESIGNATE. To indicate or set apart for a pur-
pose or duty—with, to or for—as, to designate an
-officer for a command. Mutual Discount Corpo-
ration v. Nagy, 111 N.J.L. 592, 169 A. 185, 186.
To nominate. Sredzinski v. Schmieding, 283 N.
Y.S. 332, 334, 245 App.Div. 398.
Designatio justiciariorum est a rege; jurisdictio
vero ordinaria a lege. 4 Inst. 74. The appoint-
ment of justices is by the king, but their ordinary
jurisdiction by the law.
DESIGNATING PETITION. Means used to desig-
nate a candidate for a party nomination at a pri-
mary election or for election to party position.
Potash v. Molik, 230 N.Y.S.2d 544, 548, 35 Misc.2d
1.
DESIGNATIO PERSON2E. The description of a
person or a party to a deed or contract. See, also,
Descriptio Person.
Designatio unius est exclusio alterius, et expres-
sum facit cessare taciturn. Co. Litt. 210. The
specifying of one is the exclusion of another, and
that which is expressed makes that which is un-
derstood to cease. (The appointment or designa-
tion of one is the exclusion of the other; and that
which is expressed prevails over that which is
implied.)
DESIGNATION. An addition to a name, as of
title, profession, trade, or occupation, to distin-
guish the person from others. Inglis v. Pontius,
102 Ohio St. 140, 131 N.E. 509, 511, 512.
A description or descriptive expression by which
a person or thing is denoted in . a will without us-
ing the name.
Also, an appointment or assignment, as to a
particular office. Santa Barbara County v. Jans-
sens, 177 Cal. 114, 169 P. 1025, 1027, L.R.A.1918C,
558; Cunio v. Franklin County, 315 Mo. 405, 285
S.W. 1007, 1008.
The act of pointing out, distinguishing by marks
of description, or calling by a distinctive title.
Thrailkill v. Smith, 106 Ohio St. 1, 138 N.E. 532,
534; West v. Edward Rutledge Timber Co., C.C.
A.Idaho, 221 F. 30, 35; State v. Madison State
Bank of Virginia City, 77 Mont. 498, 351 P. 548,
549; Carlyle v. State Highway Commission, 193
N.C. 36, 136 S.E. 612, 620.
DESIGNED. Contrived or taken to be employed
for a particular purpose. People v. Dorrington,
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DESIGNEDLY
221 Mich. 571, 191 N.W. 831, 832. Fit, adapted,
prepared, suitable, appropriate. Thomas v. State,
34 Okl.Cr. 49, 244 P. 816. Intended, adapted, or
designated. The term may be employed as in-
dicating a bad purpose with evil intent. Bruce v.
Sibeck, Cal.App., 78 P.2d 741, 743.
DESIGNEDLY. Sometimes equivalent to the
words "wilfully," "knowingly," "unlawfully," and
"feloniously." State v. Avery, 111 Kan. 588, 207
P. 838, 840, 23 A.L.R. 453.
DESIRE. To ask, to request. Fossett v. State,
34 Okl.Cr. 106, 245 P. 668, 669. Ordinarily, to wish
for more or less earnestly. Woods v. Postal Tel-
egraph-Cable Co., 205 Ala. 236, 87 So. 681, 684,
27 A.L.R. 834. Sometimes, to empower or author-
ize. Walters' Guardian v. Ransdell, 218 Ky. 267,
291 S.W. 399, 400. According to context or cir-
cumstances, the word may import a request or
even a demand. Cleveland Clinic Foundation v.
Humphrys, C.C.A.Ohio, 97 F.2d 849, 857, 121 A.
L.R. 163.
This term, used in a will in relation to the management
and distribution of property, has been interpreted by the
courts with different shades of meaning, varying from the
mere expression of a preference to a positive command.
See In re Bearinger's Estate, 336 Pa. 253, 9 A.2d 342, 343;
Beakey v. Knutson, 90 Or. 574, 174 P. 1149, 1150.
The word "desire" may be as effective as if the word
"devise" or "bequeath" Rad been used. Drinkard v.
Hughes, Tex.Civ.App., 32 S.W.2d 935, 936.
The word "desire," in a will, raises a trust, where the
objects of that desire are specified; Vandyck v. Van
Beuren, 1 Cai. (N.Y.) 84.
MSISTEMENT. The name of a doctrine under
which the court, in construing a foreign will, ap-
plies the law of the forum on the theory that
there is a hiatus. In re Tallmadge, 181 N.Y.S.
336, 341, 109 Misc. 696.
DESLINDE. A term used in the Spanish law,
denoting the act by which the boundaries of an
estate or portion of a country are determined.
DESMEMORIADOS. In Spanish law. Persons
deprived of memory. White, New Recop. b. 1, tit.
2, c. 1, § 4.
DESPACHEURS. In maritime law. Persons ap-
pointed to settle cases of average.
DESPATCHES. Official communications of offici-
al persons on the affairs of government.
DESPERATE. Hopeless; worthless. This term
is used in inventories and schedules of assets, par-
ticularly by executors, etc., to describe debts or
claims which are considered impossible or hope-
less of collection. See Schultz v. Pulver, 11 Wend.
(N.Y.) 365; Darrow v. Rohrer, 71 Colo. 417, 207
P. 861; Toll. Ex. 248; 2 Wms. Ex. 644; 1 Chitt. Pr.
580.
DESPERATE DEBT. A hopeless debt; an irre-
coverable obligation.
DESPITE. Contempt. Despitz, contempts. Kel-
ham.
DESPITUS. Contempt. See Despite. A con-
temptible person. Fleta, lib. 4, c. 5.
DESPOIL. This word involves, in its significa-
tion, violence or clandestine means by which one
is deprived of that which he possesses. Its Span-
ish equivalent, despojar, is a term used in Mexi-
can law. Sunol v. Hepburn, 1 Cal. 268.
DESPOJAR. A possessory action of the Mexican
law. It is brought to recover possession of im-
movable property, of which one has been despoil-
ed (despojado) by another. See, also, Despoil.
DESPONSATION. The act of betrothing persons
to each other.
DESPOSORIO. In Spanish law. Espousals; mu-
tual promises of future marriage. White, New
Recop. b. 1, tit. 6, c. 1, § 1.
DESPOT. This word, in its original and most
simple acceptation, signifies master and supreme
lord; it is synonymous with monarch; but taken
in bad part, as it is usually employed, it signifies
a tyrant. In some states, despot is the title giv-
en to the sovereign, as king is given in others.
Enc. Lond.
DESPOTISM. That abuse of government where
the sovereign power is not divided, but united in
the hands of a single man, whatever may be his
official title. It is not, properly, a form of gov-
ernment. Toullier, Dr.Civ.Fr. tit. prel. n. 32;
Rutherf. Inst. b. 1, c. 20, § 1.
"Despotism" is not exactly synonymous with
"autocracy," for the former involves the idea of
tyranny or abuse of power, which is not neces-
sarily implied by the latter. Every despotism is
autocratic; but an autocracy is not necessarily
despotic.
DESRENABLE. L. Fr. Unreasonable. Britt. c.
121.
DESSAISISSEMENT. In French law. When a
person is declared bankrupt, he is immediately
deprived of the enjoyment and administration of
all his property; this deprivation, which extends
to all his rights, is called "dessaisissement." Arg.
Fr. Merc. Law, 556.
DESTINATION. The purpose to which it is in-
tended an article or a fund shall be applied. A
testator gives a destination to a legacy when he
prescribes the specific use to which it shall be put.
The port at which a ship is to end her voyage is
called her "port of destination." Pardessus, no.
600.
The phrases "port of destination" and "port of dis-
charge" are not equivalent; U. S. v. Barker, 5 Mason 404,
Fed.Cas.No.14,516. See Sheridan v. Ireland, 66 Me. 65.
DESTINATION DU PERE DE FAMILLE. A use
which owner has intentionally established on one
part of his property in favor of another part, and
which is equal to a title with respect to perpetual
and apparent servitudes thereon. Woodcock v.
Baldwin, 51 La.Ann. 989, 26 So. 46.
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DETAINMENT
DESTITUTE. Not possessing the necessaries of
life and in a condition of extreme want. Moorman
v. State, 129 Miss. 864, 93 So. 368. Necessitous.
Ex parte Strong, 95 Tex.Cr.R. 250, 252 S.W. 767,
769. Having no money or other property avail-
able for one's maintenance or support. Norridge-
wock v. Solon, 49 Me. 385; Woods v. Perkins,
43 La.Ann. 347, 9 So. 48.
DESTITUTE OR NECESSITOUS CIRCUM-
STANCES. Circumstances in which one needs
the necessaries of life, which cover not only prim-
itive physical needs, things absolutely indispensa-
ble to human existence and decency, but those
things, also, which are in fact necessary to the
particular person left without support. State v.
Waller, 90 Kan. 829, 136 P. 215, 217, 49 L.R.A.,N.S.,
588.
A wife may be In "destitute or necessitous circum-
stances" though she is being given shelter and food by a
child or by sympathizing relatives, friends, or strangers, if
she does not have property or money available for such
necessities or ordinary comforts of life as her husband can
reasonably furnish. State v. Sharp, 111 A. 909. 910, 1 W.W.
Harr., Del., 148; Brandel v. State, 161 Wis. 532, 154 N.W.
997.
Young children, without property, are in "destitute or
necessitous circumstances," within the. Delaware Nonsup-
port Act (Rev.Code 1915, §§ 3033-3046), when the father
can, but does not, and the mother cannot out of her in-
dependent means, provide for them, though the mother
and children are supported by the maternal grandmother
or grandfather. State v. Nelson, 114 A. 863, 864, 1 W.W.
Harr. (Del.) 436; Donaghy v. State, 100 A. 696, 710, 6
Boyce (Del.) 467.
DESTROY. As used in policies of insurance,
leases, and in maritime law, and under various
statutes, this term is often applied to an act which
renders the subject useless for its intended pur-
pose, though it does not literally demolish or an-
nihilate it. Davis v. Parker, 200 Ky. 847, 255 S.W.
836 (leased buildings) ; Louisville & N. R. Co. v.
Commonwealth, 190 Ky. 78, 226 S.W. 113, 117 (rail-
road station) ; George v. McManus, 27 Cal.App.
414, 150 P. 73, 74 (automobile).
To "destroy" a vessel within the meaning of an act of
congress means to unfit the vessel for service, beyond the
hope of recovery by ordinary means. U. S. v. Johns, 1
Wash.C.C. 363, Fed.Cas.No.15,481; U. S. v. Johns, 4 Dall.
412, 1 L. Ed. 888.
The contents of a glass and bottle, emptied into a pail
of water immediately when accused saw two uniformed
police officers enter his building, are "destroyed" within
the meaning of a statute making it unlawful to secrete or
destroy any fluids on premises being searched for the pur-
pose of preventing seizure. Pitkunas v. State, 183 Wis. 90,
197 N.W. 191, 192.
Land covered by spoil dirt from drainage channel is de-
stroyed within constitutional provision that land destroyed
for drainage purposes shall be paid for at a price not to
exceed assessed value for preceding year. Scott v. Red
River-Bayou Pierre Levee & Drainage Dist. of Louisiana,
La.App., 7 So.2d 429, 433.
In relation to wills, contracts, and other docu-
ments, the term "destroy" does not import the an-
nihilation of the instrument or its resolution into
other forms of matter, but a destruction of its
legal efficacy, which may be by cancellation, oblit-
erating, tearing into fragments, etc. In re Kapp's
Estate, 317 Pa. 253, 176 A. 501, 502.
DESTRUCTION. A term used in old English law,
generally in connection with waste, and having,
according to some, the same meaning. 1 Reeve,
Eng. Law, 385; 3 Bl.Comm. 223. Britton, how
ever, makes a distinction between waste of woods
and destruction of houses. Britt. c. 66.
DESUBITO. To weary a person with continual
barkings, and then to bite; spoken of dogs. Leg
Alured, 26, cited in Cunningham's Dict.
DESUETUDE. Disuse; cessation, or discontinu-
ance of use;—especially in the phrase, "to fall
into desuetude." Applied to obsolete statutes.
James v. Comm., 12 Serg. & R. (Pa.) 227.
DETACHIARE. To seize or take into custody
another's goods or person by writ of attachment
or course of law. Cunningham.
DETAIL, v. To enumerate minutely, particular-
ize. In re California Land Buyers Syndicate, D.C.
Cal., 22 F.Supp. 183, 186.
DETAIL, n. An individual part, an item, a par-
ticular. Board of Education of Prince George's
County v. County Com'rs of Prince George's
County, 131 Md. 658, 102 A. 1007, 1010.
One who belongs to the army, but is only de-
tached, or set apart, for the time to some particu-
lar duty or service, and who is liable at any time
to be recalled to his place in the ranks. In re
Strawbridge, 39 Ala. 379.
DETAIN. To retain as the possession of person-
alty. First Nat. Bank v. Yocom, 96 Or. 438, 189
P. 220, 221. To arrest, to check, to delay, to hin-
der, to hold, or keep in custody, to retard, to re
strain from proceeding, to stay, to stop. People
v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 438.
DETAINER. The act (or the juridical fact) - of
withholding from a person lawfully entitled the
possession of land or goods, or the restraint of
a man's personal liberty against his will; deten-
tion.
The wrongful keeping of a person's goods is called an
"unlawful detainer" although the original taking may have
been lawful. As, if one distrains another's cattle, damage
feasant, and before they are impounded the owner tenders
sufficient amends; now, though the original taking was
lawful, the subsequent detention of them after tender of
amends is not lawful, and the owner has an action of re-
plevin to recover them, in which he will recover damages
for the detention, and not for the caption, because the orig-
inal taking was lawful. 3 Steph.Comm. 548.
In Practice
A writ or instrument, issued or made by a com-
petent officer, authorizing the keeper of a prison
to keep in his custody a person therein named.
A detainer may be lodged against one within the
walls of a prison, on what account soever he is
there. Com.Dig. "Process," E, (3 B.) This writ
was superseded by 1 & 2 Vict. c. 110, §§ 1, 2.
Forcible Detainer
See that title.
DETAINMENT. This term is used in policies of
marine insurance, in the clause relating to "ar-
rests, restraints, and detainments." The last two
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DETECTION
words are construed as equivalents, each meaning
the effect of superior force operating directly on
the vessel. Schmidt v. Insurance Co., 1 Johns.,
N.Y., 262, 3 Am.Dec. 319.
DETECTION. A discovery or laying open of that
which was hidden; investigation. Meunier v.
Bernich, La.App., 170 So. 567, 572.
DETECTIVE. One whose business it is to watch,
and furnish information concerning, alleged
wrongdoers by investigating their haunts and
habits. One whose business it is to detect crim-
inals or discover matters of secret and pernicious
import for the protection of the public. Smith v.
S. H. Kress & Co., 210 Ala. 436, 98 So. 378, 380.
Private Detective
One engaged by individuals for private protec-
tion. Smith v. S. H. Kress & Co., 210 Ala. 436, 98
So. 378, 380.
DETECTOR. Any device, or piece of apparatus,
which, when energized, actuated, or acted upon
by or by means of the so-called Hertzian waves, en-
able men, through the senses of hearing or sight,
to understand signals based upon the intentional-
ly regulated emission or propagation of the waves
aforesaid. Marconi Wireless Telegraph Co. of
America v. De Forest Radio Telephone & Tele-
graph Co., C.C.A.N.Y., 243 F. 560, 561. In wire-
less telegraphy, the "detector" or "coherer" and
"wave responsive device" is a device by which
the electromagnetic waves cause the indicator to
respond. National Electric Signaling Co. v. Tele-
funken Wireless Telegraph Co. of United States,
C.C.A.N.Y., 221 F. 629, 631.
DETENTIO. In the civil law. That condition of
fact under which one can exercise his power over
a corporeal thing at his pleasure, to the exclu-
sion of all others. It forms the substance of pos-
session in all its varieties. Mackeld. Rom. Law, §
238.
DETENTION. The act of keeping back or with-
holding, either accidentally or by design, a person
or thing. State v. Crappel, 181 La. 715, 160 So.
309. See Detainer.
DETENTION IN A REFORMATORY, as a pun-
ishment or measure of prevention, is where a juve-
nile offender is sentenced to be sent to a reform-
atory school, to be there detained for a certain
period of time. 1 Russ. Crimes, 82.
DETER. To discourage or stop by fear, to stop
or prevent from acting or proceeding by danger,
difficulty, or other consideration which disheartens
or countervails the motive for the act. Haynes-
worth v. Hall Const. Co., 44 Ga.App. 807, 163 S.E.
273, 277.
DETERIORATION. Of a commodity, a constitu-
tional hurt or impairment, involving some degen-
eration in the substance of the thing, such as that
arising from decay, corrosion, or disintegration.
The mere soiling of a commodity with sea water
or other foreign substance, resulting in a purely
superficial hurt or impairment removable by the
simple process of cleansing, cannot be said to be
"deterioration" within the ordinary meaning of
that term. Rosen-Reichardt Brokerage Co. v.
London Assur. Corporation, 214 Mo.App. 672, 264
S.W. 433, 436.
Of values, a decline. Laxson v. Scarborough,
Tex.Civ.App., 221 S.W. 1029.
DETERMINABLE. Liable to come to an end up-
on the happening of a certain contingency. 2 Bl.
Comm. 121.
Susceptible of being determined, found out,
definitely decided upon, or settled. Utah State
Nat. Bank v. Smith, 180 Cal. 1, 179 P. 160, 161.
As to determinable "Fee" and "Freehold," see
those titles.
DETERMINATE. That which is ascertained;
what is particularly designated.
As used in Good Time Law covering prisoners confined
for a determinate, the term, signifies a definite number-
of years fixed by the court. Hinkle v. Dowd, Ind., 58 N.E.
2d 342, 343.
DETERMINATE OBLIGATION. See Obligation.
DETERMINATION. The decision of a court of
justice. It implies an ending or finality, the end-
ing of a controversy or . suit. People v. Jackson,
181 N.Y.S. 226, 191 App.Div. 269. The ending or
expiration of an estate or interest in property, or
of a right, power, or authority. The coming to an
end in any way whatever. Hanchett Bond Co. v.
Glore, 208 Mo.App. 169, 232 S.W. 159, 160.
Also, an estimate. Unton v. Liverpool, London
& Globe Ins. Co., 166 Minn. 273, 207 N.W. 625, 626.
As respects an assessment, the term implies
judgment and decision after weighing the facts;
Appeal of Hoskins Mfg. Co., 270 Mich. 592, 259
N.W. 334, not mere arithmetical computation.
Hanlon v. Rollins, 286 Mass. 404, 190 N.E. 606, 608.
DETERMINATION OF WILL. A phrase used of
the putting an end to an estate at will. 2 Bl.
Comm. 146.
DETERMINE. To come to an end. To bring to
an end. 2 Bl.Comm. 121; 1 Washb. Real Prop.
380.
To bring to a conclusion, to settle by authorita.
tive sentence, to decide. Eastman Kodak Co. v.
Richards,, 123 Misc. 83, 204 N.Y.S. 246, 248. To
adjudicate on an issue presented. Glenn v. Mit-
chell, 71 Colo. 394, 207 P. 84, 85.
To estimate. Twin Falls Salmon River Land &
Water Co. v. Caldwell, C.C.A.Idaho, 242 F. 177, 184.
To decide, and analogous to "adopt" or "ac-
cept." Goldberger v. City of Perth Amboy, 16 N.
J.Misc. 8/4, 197 A. 267, 269.
DETESTATIO. Lat. In the civil law. A sum-
moning made, or notice given, in the presence of
witnesses, (denuntiatio facts cum testatione.)
Dig. 50, 16, 40.
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DEVASTAVIT
DETINET. Lat. He detains. In old English
law. A species of action of debt, which lay for the
specific recovery of goods, under a contract to de-
liver them. 1 Reeves, Eng. Law, 159.
In Pleading
An action of debt is said to be in the detinet
when it is alleged merely that the defendant with-
holds or unjustly detains from the plaintiff the
thing or amount demanded.
An action of replevin is said to be in the de-
tinet when the defendant retains possession of
the property until after judgment in the action.
Bull, N.P. 52; Chit.Pl. 145.
DETINUE. In practice. A form of action which
lies for the recovery, in specie, of personal chat-
tels from one who acquired possession of them
lawfully, but retains it without right, together
with damages for the detention. 3 Bl.Comm. 152.
Sinnott v. Feiock, 165 N.Y. 444, 59 N.E. 265, 53 L.
R.A. 565, 80 Am.St.Rep. 736.
The action of dettinue is defined in the old books as a
remedy founded upon the delivery of goods by the owner
to another to keep, who afterwards refuses to redeliver
them to the bailor; and it is said that, to authorize the
maintenance of the action, it is necessary that the defend-
ant should have come lawfully into the possession of the
chattel, either by delivery to him or by finding it. In fact,
it was once understood to be the law that detinue does not
lie where the property had been tortiously taken. But it
is, upon principle, very unimportant in what manner the
defendant's possession commenced, since the gist of the
action is the wrongful detainer, and not the original tak-
ing.
It is only incumbent upon the plaintiff to prove property
in himself, and possession in the defendant. At present,
the action of detinue is proper in every case where the
owner prefers recovering the specific property to damages
for its conversion, and no regard is had to the manner in
which the defendant acquired the possession. Tiefel Bros.
& Winn v. Maxwell, Tex.Civ.App., 154 S.W. 319, 320.
DETINUE OF GOODS IN FRANK MARRIAGE.
A writ formerly available to a wife after a di-
vorce, for the recovery of the goods given with
her in marriage. Mozley & Whitley.
DETINUIT. In pleading. An action of replevin
is said to be in the detinuit when the plaintiff ac-
quires possession of the property claimed by
means of the writ. The right to retain is, of
course, subject in such case to the judgment of
the court upon his title to the property claimed.
Bull, N.P. 521.
DETOUR. A temporary turning aside from us-
ual or regular route, course or procedure or from
a task or employment. Reddy-Waldhauer-Maf-
fett Co. v. Spivey, 53 Ga.App. 117, 185 S.E. 147,
148.
A temporary road or a longer road in temporary
use because of an obstruction on regularly used
road.
DETOURNEMENT. The misappropriation by a
servant of funds the property of his master;
fraudulent abstraction of documents; or "abus de
confiance" which is fraudulently misusing or
spending to anybody's prejudice goods, cash, bills,
documents, or contracts handed over for a spe-
cial object. See Embezzlement. The Washington
D.C.N.Y., 19 F.Supp. 719, 722.
DETRACTARI. To be torn in pieces by horses.
Fleta, 1. 1, c. 37.
DETRACTION. The removal of property from
one state to another upon a transfer of the title
to it by will or inheritance. Frederickson v. Lou-
isiana, 23 How. 445, 16 L.Ed. 577.
DETRIMENT. Any loss or harm suffered in per-
son or property; e. g., the consideration for a
contract may consist not only in a payment or
other thing of value given, but also in loss or
"detriment" suffered by the promisee. In that
connection, "detriment" means that the promisee
has, in return for the promise, forborne some legal
right which he otherwise would have been entitled
to exercise. Wallace v. Cook, 190 Ky. 262, 227
S.W. 279, 281; or that he has given up something
which he had a right to keep, or done something
which he had a right not to do. Irving v. Irwin,
133 Cal.App. 374, 24 P.2d 215.
DETUNICARI. To discover or lay open to the
world, Matt. Westm. 1240.
DEUNX, pl. DEUNCES. Lat. In the Roman law.
A division of the as, containing eleven uncice or
duodecimal parts; the proportion of eleven-
twelfths. 2 Bl.Comm. 462, note. See As.
Deus solus hmredem facere potest, non homo.
God alone, and not man, can make an heir. Co.
Litt. 7b; Broom, Max. 516; 5 B. & C. 440, 454.
DEUTEROGAMY. The act, or condition, of one
who marries after the death of a former wife or
husband.
DEVADIATUS, or DIVADIATUS. An offender
without sureties or pledges. Cowell.
DEVASTATION. Wasteful use of the property
of a deceased person, as for extravagant funeral
or other unnecessary expenses. 2 Bl.Comm. 508.
DEVASTAVERUNT. They have wasted. A term
applied in old English law to waste by executors
and administrators, and to the process issued
against them therefor. Cowell. See Devastavit.
DEVASTAVIT. Lat. He has wasted. The act
of an executor or administrator in wasting the
goods of the deceased; mismanagement of the
estate by which a loss occurs; Grigg v. Hanna,
283 Mich. 443, 478 N.W. 125; a breach of trust or
Misappropriation of assets held in a fiduciary char-
acter; any violation or neglect of duty by an
executor or administrator, involving loss to the
decedent's estate, which makes him personally
responsible to heirs, creditors, or legatees. Mc-
Glaughlin v. McGlaughlin, 43 W.Va. 226, 27 S.E.
378.
Also, if plaintiff, in an action against an executor or ad-
ministrator, has obtained judgment, the usual execution
runs de bonis testatoris; but, if the sheriff returns such
a writ nulla bona testatoris nec propria, the plaintiff may,
forthwith, upon this return, sue out an execution against
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the property or person of the executor or administrator, in
as full a manner as in an action against him, sued in his
own right. Such a return is called a "devastavit." Brown.
DEVELOP. To progress to a more advanced
state or condition, as an injury. Rabin v. Cen-
tral Business Men's Ass'n, 116 Kan. 280, 226 P. 764,
766, 38 A.L.R. 26. To bring, or attempt to bring,
to a state of fruition; to continue the work in
hand, as in operating under an oil and gas lease,
in a manner that would discover oil, if it existed,
and promote its production. Lacer v. Sumpter,
198 Ky. 752, 249 S.W. 1026, 1027. To unfold more
completely; to evolve the possibilities or power
of; to make active; to perfect; advance; fur-
ther; to make; to increase; to promote the
growth of. Leingang v. Geller, Ward & Hasner
Hardware Co., 335 Mo. 549, 73 S.W.2d 256, 261.
DEVELOPED WATER. Such subterranean or
underground water as is discovered and brought
to the surface by the exploitation of man, and
which otherwise would run to waste. Rock Creek
Ditch & Flume Co. v. Miller, 17 P.2d 1074, 1077,
93 Mont. 248, 89 A.L.R. 200; Jones v. Warmsprings
Irr. Dist., 162 Or. 186, 91 P.2d 542.
DEVENERUNT. A writ, now obsolete, directed
to the king's escheators when any of the king's
tenants in capite dies, and when his son and heir
dies within age and in the king's custody, com.
manding the escheators, that by the oaths of
twelve good and lawful men they shall inquire
what lands or tenements by the death of the ten-
ant have come to the king. Dyer, 360; Termes
de la Ley; Keilw. 199a; Blount; Cowell.
DEVEST. To deprive; to take away; to with-
draw. Usually spoken of an authority, power,
property, or title; as the estate is devested.
Devest is opposite to invest. As to invest sig-
nifies to deliver the possession of anything to an-
other, so to devest signifies to take it away. Ja-
cob
It is sometimes written "divest" but "devest"
has the support of the best authority. Burrill.
DEVIATION.
In General
A change made in the progress of a work from
the original terms or design or method agreed
upon. Ward v. City of Monrovia, 16 Ca1.2d 815, 108
P.2d 425, 429.
A voluntary departure by railroad carrier, with-
out necessity or reasonable cause, from the regi,
lar or usual route or from a stipulated or cus-
tomary mode of carriage. Ward v. Gulf, M. & N.
R. Co., 23 Tenn.App. 533, 134 S.W.2d 917, 924.
In Insurance
Varying from the risks insured against, as de-
scribed in the policy, without necessity or just
cause, after the risk has begun. 1 Phil.Ins. §
977, et seq.; 1 Arn.Ins. 415, et seq. Hostetter v.
Park, 137 U.S. 30, 11 Sup.Ct. 1, 34 L.Ed. 568.
Any unnecessary or unexcused departure from
the usual or general mode of carrying on the voy.
age insured. 15 Amer. Law Rev. 108; Shackman
v. Cunard White Star, D.C.N.Y., 31 F.Supp. 948,
951.
A voluntary departure without reasonable cause
from the course of the voyage insured, or an un-
reasonable delay in pursuing the voyage, or the
commencement of an entirely different voyage.
The Chester Valley, C.C.A.La., 110 F.2d 592, 594;
The Willdomino v. Citro Chemical Co. of America,
272 U.S. 718, 47 S.Ct. 261, 262, 71 L.Ed. 491.
In the Law of Master and Servant
A departure on the part of a servant from his
master's service, for some purpose of his own.
Jeffries v. Jodawelky, 304 Mich. 421, 8 N.W.2d
121, 122. The liability of the master to third per-
sons injured by the servant depends on the de-
gree of deviation and all the attending circum-
stances. Johnson v. Maryland Cass Co., C.C.A.
Wis., 125 F.2d 337, 338. To exonerate the master,
the deviation must be so substantial as to amount
to an entire departure, and must be for purposes
entirely personal to the servant. Thomas v.
Lockwood Oil Co., 174 Wis. 486, 182 N.W. 841, 843.
Contra, it is held that the test is whether master
impliedly consented to route taken, and there
can be no such thing as a slight deviation. Kalin-
owski v. Odlewany, 289 Mich. 684, 287 N.W. 344,
345. As to a distinction between "deviation," "tem-
porary abandonment," and "complete abandon-
ment," see Dockweiler v. American Piano Co., 94
Misc. 712, 160 N.Y.S. 270, 273.
DEVICE. An invention or contrivance; any re-
sult of design; as in the phrase "gambling device,"
which means a machine or contrivance of any
kind for the playing of an unlawful game of
chance or hazard. State v. Blackstone, 115 Mo.
424, 22 S.W. 370. Also, a plan or project; a
scheme to trick or deceive; a stratagem or arti-
fice; as in the laws relating to fraud and cheat-
ing. State v. Smith, 82 Minn. 342, 85 N.W. 12.
Also an emblem, pictorial representation, or dis-
tinguishing mark or sign of any kind; as in the
laws prohibiting the marking of ballots used in
public elections with "any device." Baxter v. El-
lis, 111 N.C. 124, 15 S.E. 938, 17 L.R.A. 382.
In a statute against gaming devices, this term is to be
understood as meaning something formed by design, a con-
trivance, an invention. It is to be distinguished from "sub-
stitute," which means something put in the place of anoth-
er thing, or used instead of something else. Henderson v.
State, 59 Ala. 91.
In Patent Law
A plan or contrivance, or an application, ad-
justment, shaping, or combination of materials or
members, for the purpose of accomplishing a par-
ticular result or serving a particular use, chiefly
by mechanical means and usually simple in char-
acter or not highly complex, but involving the
exercise of the inventive faculty.
DEVIL ON THE NECK. An instrument of tor-
ture, formerly used to extort confessions, etc. It
was made of several irons, which were fastened
•
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DEVOLUTIVE
to the neck and legs, and wrenched together so as
to break the back. Cowell.
DEVILLING. A term used in London of a bar-
rister recently admitted to the bar, who assists a
junior barrister in his professional work, without
compensation and without appearing in any way
in the matter.
DEVISABLE. Capable of being devised. 1 Pow.
Dev. 165; 2 Bl.Comm. 373,
DEVISAVIT VEL NON. In practice. The name
of an issue sent out of a court of chancery, or one
which exercises chancery jurisdiction, to a court
of law, to try the validity of a paper asserted and
denied to be a will, to ascertain whether or not
the testator did devise, or whether or not that pa-
per was his will. 7 Brown, Parl.Cas, 437; 2 Atk.
424; Asay v. Hoover, 5 Pa. 21, 45 Am.Dec. 713.
DEVISE. A testamentary disposition of land or
realty; a gift of real property by the last will and
testament of the donor. Scholle v. Scholle, 113
N.Y. 261, 21 N.E. 84; Murchison v. Wallace, 156
Va, 728, 159 S.E. 106, 108.
Classification
Devises are contingent or vested; that is, after the death
of the testator. Contingent, when the vesting of any
estate in the devisee is made to depend upon some future
event, in which case, if the event never occur, or until it
does occur, no estate vests under the devise. But, when
the future event is referred to merely to determine the
time at which the devisee shall come into the use of the
estate, this does not hinder the vesting of the estate at the
death of the testator. 1 Jarm.Wills, c. 26. Devises are
also classed as general or specific. A general devise is one
which passes lands of the testator without a particular
enumeration or description of them; as, a devise of "all
my lands" or "all my other lands." In a more restricted
sense, a general devise is one which grants a parcel of land
without the addition of any words to show how great an
estate is meant to be given, or without words indicating
either a grant in perpetuity or a grant for a limited term;
in this case it is construed as granting a life estate. Hitch
v. Patten, 8 Houst. (Del.) 334, 16 A. 558, 2 L.R.A. 724.
Specific devises are devises of lands particularly specified in
the terms of the devise, as opposed to general and residu-
ary devises of land, in which the local or other particular
descriptions are not expressed. For example, "I devise my
Hendon Hall estate" is a specific devise; but "I devise all
my lands," or, "all other my lands," is a general devise or
a residuary devise. But all devises are (in effect) specific,
even residuary devises being so. L.R. 3 Ch. 420; Id. 136.
At common law, all devises of land were deemed to be
"specific" whether the land was identified in the devise or
passed under the residuary clause. In re Sutton's Estate,
11 Del.Ch. 460, 97 A. 624, 626. A conditional devise is one
which depends upon the occurrence of some uncertain
event, by which it is either to take effect or be defeated.
'An executory devise of lands is such a disposition of them
by will that thereby no estate vests at the death of the
devisor, but only on some future contingency. It differs
from a remainder in three very material points ; (1) That
it needs not any particular estate to support it; (2) that
by it a fee-simple or other less estate may be limited after
a fee-simple; (3) that by this means a remainder may be
limited of a chattel interest, after a particular estate for
life created in the same. 2 Bl.Comm. 172. In a stricter
sense, a limitation by will of a future contingent interest in
lands, contrary to the rules of the common law. 4 Kent,
Comm. 263; 1 Steph.Comm. 564; Dean v. Crews, 77 Fla.
319, 81 So. 479. A limitation by will of a future estate or
interest in land, which cannot, consistently with the rules
of law, take effect as a remainder. 2 Pow.Dev. (by Jar-
man,) 237; Bean v. Atkins, 87 Vt. 376, 89 A. 643, 646. See
Poor v. Considine, 6 Wall. 474, 18 L.Ed. 869; Glover v.
Condell, 163 Ill. 566, 45 N.E. 173, 35 L.R.A. 360. A future
interest taking effect as a fee in derogation of a defeasible
fee devised or conveyed to the first taker, when created by
will, is an "executory devise," and, when created by deed,
is a "conditional limitation," and in either event is given
effect as a shifting or springing use. McWilliams v. Have-
ly, 214 Ky. 320, 283 S.W. 103, 104.
The estates known as a contingent remainder and an "ex-
ecutory devise" are both interests or estates in land to
take effect in the future and depend upon a future con-
tingency; an "executory devise" being an interest which
the rules of law do not permit to be created in convey-
ances, but allow in case of wills. It follows a fee estate
created by a will. A contingent remainder may be created
by will or other conveyance and must follow a particular
or temporary estate created by the same instrument of
conveyance. Wilkins v. Rowan, 107 Neb. 180, 185 N.W. 437,
439. Lapsed devise. A devise which fails, or takes no ef-
fect, in consequence of the death of the devisee before the
testator; the subject-matter of it being considered as not
disposed of by the will. 1 Steph.Comm. 559; 4 Kent,
Comm. 541. Murphy v. McKeon, 53 N.J.Eq. 406, 32 A. 374.
Residuary devise. A devise of all the residue of the testa-
tor's real property, that is, all that remains over and above
the other devises.
Synonyms
The term "devise" is properly restricted to real prop-
erty; testamentary dispositions of personal property being
properly called "bequests" or "legacies." Borgner v.
Brown, 133 Ind. 391, 33 N.E. 92.
To contrive; plan; scheme; invent; prepare. Stockton
v. United States, C.C.A.I11., 205 F. 462, 464, 46 L.R.A.,N.S.,
936.
DEVISEE. The person to whom lands or other
real property are devised or given by will. 1 Pow.
Dev. c. 7. In re Lewis' Estate, 39 Nev, 445, 159
P. 961, 962, 4 A.L.R. 241.
Residuary Devisee
The person named in a will, who is to take all
the real property remaining over and above the
other devises.
DEVISOR. A giver of lands or real estate by
will; the maker of a will of lands; a testator.
DEVOIR. Fr. Duty. It is used in the statute of
2 Rich. II. c. 3, in the sense of duties or customs.
DEVOLUTION. The transfer or transition from
one person to another of a right, liability, title,
estate, or office. Francisco v. Aguirre, 94 Cal. 180,
29 P. 495.
In Ecclesiastical Law
The forfeiture of a right or power (as the right
of presentation to a living) in consequence of its
non-user by the person holding it, or of some other
act or omission on his part, and its resulting
transfer to the person next entitled.
In Scotch Law
The transference of the right of purchase, from
the highest bidder at an auction sale, to the next
highest, when the former fails to pay his bid or
furnish security for its payment within the time
appointed. Also, the reference of a matter in con-
troversy to a third person (called "oversman") by
two arbitrators to whom it has been submitted
and who are unable to agree.
DEVOLUTIVE APPEAL. In the law of Louisi-
ana, one which does not suspend the execution of
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the judgment appealed from. Brock v. Police
Jury of Rapides Parish, 198 La. 787, 4 So.2d 829,
832.
DEVOLVE. To pass or be transferred from one
person to another; to fall on, or accrue to, one
person as the successor of another; as a title,
right, office, liability. The term is said to be pecu-
liarly appropriate to the passing of an estate
from a person dying to a person living. Babcock
v. Maxwell, 29 Mont. 31, 74 P. 64; Fitzpatrick v.
McAlister, 121 Okl. 83, 248 P. 569, 573; People ex
rel. Robin v. Hayes, 149 N.Y.S. 250, 252, 163 App.
Div. 725. See Devolution.
DEVULCANIZE. Of rubber. A more or less
perfect restoration of vulcanized rubber to a state
in which it might be used as crude rubber. Phil-
adelphia Rubber Works Co. v. Portage Rubber
Co., D.C.Ohio, 227 F. 623, 627.
DEVY. L. Fr. Dies; deceases. Bendloe, 5.
DEXTANS. Lat. In Roman law. A division of
the as, consisting of ten uncice; ten-twelfths, or
five-sixths. 2 Bl.Comm. 462, note m.
DEXTRARIUS. One at the right hand of another.
DEXTRAS DARE. To shake hands in token of
friendship; or to give up oneself to the power of
another person.
DI COLONNA. In maritime law. The contract
which takes place between the owner of a ship, the
captain, and the mariners, who agree that the voy-
age shall be for the benefit of all. The term is
used in the Italian law. Emerig. Mar. Loans, § 5.
DI. ET FI. L.Lat. In old writs. An abbrevia-
tion of dilecto et fideli, (to his beloved and faith-
ful.)
DIACONATE. The office of a deacon.
DIACONUS. A deacon.
DIAGNOSIS. A medical term, meaning the dis-
covery of the source of a patient's illness or the
determination of the nature of his disease from
a study of its symptoms. Said to be little more
than a guess enlightened by experience. Swan v.
Railroad Co., 29 N.Y.S. 337, 79 Hun 612; People
v. Jordan, 172 Cal. 391, 156 P. 451, 454.
The art or act of recognizing the presence of
disease from its symptoms, and deciding as to its
character, also the decision reached, for deter-
mination of type or condition through case or
specimen study or conclusion arrived at through
critical perception or scrutiny. A "clinical diag-
nosis" is one made from a study of the symptoms
only, and a "physical diagnosis" is one made by
means of physical measure, such as palpation
and inspection. Williams v. Elias, 140 Neb. 656,
1 N.W.2d 121, 123.
DIAGONAL, n. A right line drawn from the one
angle to another not adjacent of a figure of four
or more sides and dividing it into two parts. Sem-
erad v. Dunn County, 35 N.D. 437, 160 N.W. 855,
858.
DIAGONAL, adj. Joining two not adjacent an-
gles of a quadrilateral or multilateral figure run-
ning across from corner to corner; crossing at an
angle with one of the sides. Semerad v. Dunn.
County, 35 N.D. 437, 160 N.W. 855, 858.
DIALECTICS. That branch of logic which teach-
es the rules and modes of reasoning.
DIALLAGE. A rhetorical figure in which argu-
ments are placed in various points of view, and
then turned to one point. Enc.Lond.
DIALOGUS DE SCACCARIO. Dialogue of or
about the exchequer. An ancient treatise on
the court of exchequer, attributed by some to Ger-
vase of Tilbury, by others to Richard Fitz Nigel,
bishop of London in the reign of Richard I. It
is quoted by Lord Coke under the name of Ock-
ham. Crabb, Eng. Law, 71.
DIANATIC. A logical reasoning in a progres-
sive manner, proceeding from one subject to an-
other. Enc. Lond.
DIARIUM. Daily food, or as much as will suf-
fice for the day. Du Cange.
DIATHERMY. Heat treatment by electricity.
Biener v. St. Louis Public Service Co., Mo.App.,
160 S.W.2d 780, 788.
DIATIM. In old records. Daily; every day;
from day to day. Spelman.
DICA. In old English law. A tally for accounts,
by number of cuts, (taillees,) marks, or notches.
Cowell. See Tallia; Tally.
DICAST. An officer in ancient Greece answering
in some respects to our juryman, but combining,
on trials had before them, the functions of both
judge and jury. The dicasts sat together in num-
bers varying, according to the importance of the
case, from one to five hundred.
DICE. Small cubes of bone or ivory, marked with
figures or devices on their several sides, used in
playing certain games of chance. See Wetmore
v. State, 55 Ala. 198.
DICTA. Opinions of a judge which do not em-
body the resolution or determination of the court.
Deer Island Fish & Oyster Co. v. First Nat. Bank,
166 Miss. 162, 146 So. 116, 119. See Dictum.
DICTATE. To order or instruct what is to be
said or written. To pronounce, word by word,
what is meant to be written by another. Hamil-
ton v. Hamilton, 6 Mart., N.S., La., 143. See Dic-
tation.
DICTATION. In Louisiana, this term is used in
a technical sense, and means to pronounce orally
what is destined to be written at the same time
by another. It is used in reference to nuncupative
wills. Prendergast v. Prendergast, 16 La.Ann.
220, 79 Am.Dec. 575. The dictation of a will re-
fers to the substance, and not the style, and it is
sufficient if the will, as written, conveys the iden-
tity of thought expressed by the testator, though
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not the identity of words used by him. Succes-
sion of Beattie, 163 La. 831, 112 So. 802, 803.
DICTATOR. A magistrate invested with unlimit-
ed power, and created in times of national distress
and peril. Among the Romans, he continued in
office for six months only, and had unlimited pow-
er and authority over both the property and lives
of the citizens.
One in whom supreme authority in any line is
invested, one who rules as dictator, and one who
prescribes for others authoritatively. Houston
Printing Co. v. Hunter, Tex.Civ.App., 105 S.W.2d
312, 317.
DICTATORSHIP OF PROLETARIAT. The class
power of the revolutionary proletariat (unskilled
laborers without property) arising upon destruc-
tion of the state. People v. Gitlow, 234 N.Y. 132,
136 N.E. 317, 322.
DICTORES. Arbitrators.
DICTUM.
In General
A statement, remark, or observation. Gratis
dictum; a gratuitous or voluntary representation;
one which a party is not bound to make. 2 Kent,
Comm. 486. Simplex dictum; a mere assertion;
an assertion without proof. Bract. fol. 320.
The word is generally used as an abbreviated
form of obiter dictum, "a remark by the way;"
that is, an observation or remark made by a judge
in pronouncing an opinion upon a cause, con-
cerning some rule, principle, or application of law,
or the solution of a question suggested by the
case at bar, but not necessarily involved in the
case or essential to its determination; any state-
ment of the law enunciated by the court merely
by way of illustration, argument, analogy, or sug-
gestion. See Railroad Co. v. Schutte, 103 U.S.
118, 143, 26 L.Ed. 327; City of Lincoln v. Steffens-
meyer, 134 Neb. 613, 279 N.W. 272, 119 A.L.R.
914; Deer Island Fish & Oyster Co. v. First Nat.
Bank, 166 Miss. 162, 146 So. 116, 119.
Statements and comments in an opinion con-
cerning some rule of law or legal proposition not
necessarily involved nor essential to determination
of the case in hand are obiter dicta, and lack the
force of an adjudication. Wheeler v. Wilkin, 98
Colo. 568; 58 P.2d 1223, 1226; Roquemore v. Sov-
ereign Camp, W.O.W., 226 Ala. 279, 146 So. 619,
622.
Dicta are opinions of a judge which do not embody the
resolution or determination of the court, and made without
argument, or full consideration of the point, are not the
professed deliberate determinations of the judge himself.
Obiter dicta are such opinions uttered by the way, not
upon the point or question pending, as if turning aside for
the time from the main topic of the case to collateral sub-
jects. Rohrbach v. Insurance Co., 62 N.Y. 47, 58, 20 Am.
Rep. 451.
In Old English Law
Dictum meant an arbitrament, or the award of
arbitrators.
In French Law
The report of a judgment made by one of the
judges who has given it. Poth.Proc.Civil, pt. 1, c.
5, art. 2.
DICTUM DE KENILWORTH. The edict or dec-
laration of Kenilworth. An edict or award be-
tween King Henry III. and all the barons and
others who had been in arms against him; and
so called because it was made at Kenilworth Cas-
tle in Warwickshire, in the fifty-first year of his
reign, containing a composition of five years' rent
for the lands and estates of those who had for-
feited them in that rebellion. Blount; 2 Reeve,
Eng.Law, 62.
DIE, v. To expire; cease to live; the equivalent
to the phrase "lose his life." Hershey v. Agnew,
83 Colo. 89, 262 P. 526, 528.
DIE, n. A mold. Cole v. United States, C.C.A.
Colo., 269 F. 250, 251.
DIE WITHOUT ISSUE. See Dying Without Issue.
DIEI DICTIO. Lat. In Roman law. This name
was given to a notice promulgated by a magistrate
of his intention to present an impeachment against
a citizen before the people, specifying the day
appointed, the name of the accused, and the crime
charged.
DIEM CLAUSIT EXTREMUM. (Lat. He has
closed his last day,—died.) A writ which formerly
lay on the death of a tenant in capite, to ascer-
tain the lands of which he died seised, and re-
claim them into the king's hands. It was direct-
ed to the king's escheators. Fitzh.Nat.Brev. 251,
K; 2 Reeve, Eng.Law, 327.
A writ awarded out of the exchequer after the
death of a crown debtor, the sheriff being com-
manded by it to inquire by a jury when and where
the crown debtor died, and what chattels, debts,
and lands he had at the time of his decease, and
to take and seize them into the crown's hands. 4
Steph.Comm. 47, 48.
DIES. Lat. A day; days. Days for appearance
in court. Provisions or maintenance for a day.
The king's rents were anciently reserved by so
many days' provisions. Spelman; Cowell; Blount.
DIES A QUO. (The day from which.) In the
civil law. The day from which a transaction be-
gins; the commencement of it; the conclusion be-
ing the dies ad quem. Mackeld.Rom.Law, § 185.
DIES AMORIS. A day of favor. The name given
to the appearance day of the term on the fourth
day, or quarto die post. It was the day given by
the favor and indulgence of the court to the de-
fendant for his appearance, when all parties ap-
peared in court, and had their appearance record-
ed by the proper officer. Wharton.
DIES CEDIT. The day begins; dies venit, the
day has come. Two expressions in Roman law
which signify the vesting or fixing of an interest,
and the interest becoming a present one. San-
dars' Just.Inst. (5th Ed.) 225, 232.
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DIES
DIES COMMUNES IN BANCO. Regular days for
appearance in court; called, also "common re-
turn-days." 2 Reeve, Eng.Law, 57.
DIES DATUS. A day given or allowed, (to a de-
fendant in an action; ) amounting to a continu-
ance. But the name was appropriate only to a
continuance before a declaration filed; if after-
wards allowed, it was called an "imparlance."
DIES DATUS IN BANCO. A day given in the
bench, (or court of common pleas.) Bract. fols.
257b, 361. A day given in bank, as distinguished
from a day at nisi prius. Co.Litt. 135.
DIES DATUS PARTIBUS. A day given to the
parties to an action; an adjournment or continu-
ance. Crabb, Eng.Law, 217.
DIES DATUS PRECE PARTIUM. A day given on
the prayer of the parties. Bract. fol. 358; Gilb.
Comm.Pl. 41; 2 Reeve, Eng.Law, 60.
DIES DOMINICUS. The Lord's day; Sunday.
Dies dominicus non est juridicus. Sunday is not
a court day, or day for judicial proceedings, or
legal purposes. Co.Litt. 135a; Noy, Max. 2; Wing.
Max. 7, max. 5; Broom, Max. 21.
DIES EXCRESCENS. In old English law. The
added or increasing day in leap year. Bract. fols.
359, 359b.
DIES FASTI. In Roman law. Days on which
the courts were open, and justice could be legally
administered; days on which it was lawful for
the prEetor to pronounce (tali) the three words,
"do," "dico," "addico." Mackeld.Rom.Law, § 39,
and note; 3 Bl.Comm. 424, note; Calvin. Hence
called "triverbial days," answering to the dies juri-
dici of the English law.
DIES FERIATL In the civil law. Holidays. Dig.
2, 12, 2, 9.
DIES GRATIIE. In old English practice. A day
of grace, courtesy, or favor. Co.Litt. 134b. The
quarto die post was sometimes so called. Id. 135a.
Dies inceptus pro completo habetur. A day be-
gun is held as complete.
Dies incertus pro conditione habetur. An uncer-
tain day is held as a condition.
DIES INTERCISI. In Roman law. Divided days;
days on which the courts were open for a part of
the day. Calvin.
DIES JURIDICUS. A lawful day for the transac-
tion of judicial or court business; a day on which
the courts are or may be open for the transaction
of business. Didsbury v. Van Tassell, 56 Hun, 423,
10 N.Y.Supp. 32.
DIES LEGITIMUS. In the civil and old English
law. A lawful or law day; a term day; a day of
appearance.
DIES MARCIII1E. In old English law. The day
of meeting of English and Scotch, which was an-
• nually held on the marches or borders to adjust
their differences and preserve peace.
DIES NEFASTI. In Roman law. Days on which
the courts were closed, and it was unlawful to
administer justice; answering to the dies non
juridici of the English law. Mackeld.Rom.Law, §
39, note.
DIES NON. An abbreviation of Dies non juridi-
cus, (q. v.).
DIES NON JURIDICUS. In practice. A day not
juridical; not a court day. A day on which courts
are not open for business, such as Sundays and
some holidays. Havens v. Stiles, 8 Idaho, 250, 67
P. 921, 56 L.R.A. 736, 101 Am.St.Rep. 195.
DIES PACIS. (Days of peace.) The year was
formerly divided into the days of the peace of the
church and the days of the peace of the king, in-
cluding in the two divisions all the days of the
year. Crabb, Eng.Law, 35.
DIES SOLARIS. In old English law. A solar
day, as distinguished from what was called "dies
lunaris," (a lunar day;) both composing an arti-
ficial day. Bract. fol. 264. See Day.
DIES SOLIS. In the civil and old English law.
Sunday, (literally, the day of the sun.) See Cod.
3, 12, 7.
DIES UTILES. Juridical days; useful or avail-
able days. A term of the Roman law, used to des-
ignate those especial days occurring within the
limits of a prescribed period of time upon which it
was lawful, or possible, to do a specific act.
DIET. A general legislative assembly is some-
times so called on the continent of Europe.
In Scotch Practice
The sitting of a court. An appearance day. A.
day fixed for the trial of a criminal cause. A crim-
inal cause as prepared for trial.
DIETA. A day's journey; a day's work; a day's
expenses.
DIETS OF COMPEARANCE. In Scotch law. The
days within which parties in civil and criminal
prosecutions are cited to appear. Bell.
DIEU ET MON DROIT. Fr. God and my right.
The motto of the royal arms of England, first as-
sumed by Richard I.
DIEU SON ACTE. L. Fr. In old law. God his
act; God's act. An event beyond human foresight
or control. Termes de la Ley.
DIFFACERE. To destroy; to disfigure or deface.
DIFFERENCE. In an agreement for submission
to arbitration, a disagreement or dispute. Fravert
v. Fesler, 11 Colo.App. 387, 53 Pac. 288; Pioneer
Mfg. Co. v. Phoenix Assur. Co., 106 N.C. 28, 10 S.E.
1057.
As respects contract specifications or material
described therein, a state of being unlike. Mc-
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DILAPIDATION
Garry Contracting Co. v. Board of Education of
City of New York, 284 N.Y. 218, 30 N.E.2d 482.
In mathematics, the magnitude or quantity by
which one magnitude or quantity differs from an-
other of the same kind; the remainder left after
subtracting the one from the other. Riley Stoker
Corporation v. Jeffrey Mfg. Co., 62 Ohio App. 199,
23 N.E.2d 519, 522.
Difficile est ut unus homo vicem duorum sus-
tineat. 4 Coke, 118. It is difficult that one man
should sustain the place of two.
DIFFICULT. For the meaning of the phrase
"difficult and extraordinary case," as used in New
York statutes and, practice, see Standard Trust
Co. v. New York, etc., R. Co., 178 N.Y. 407, 70 N.E.
925; Realty Associates v. Packard Motor Car Co.
of New York, 119 Misc. 292, 196 N.Y.S. 198, 200;
Cohen v. Texas Co., D.C.N.Y., 23 F.2d 128, 129.
DIFFORCIARE. In old English law. To deny,
or keep from one. Difforciare rectum, to deny
justice to any one, after having been required to
do it.
DIFFUSE. To spread widely; scatter; disperse.
Ex parte Hinkelman, 183 Cal. 392, 191 P. 682, 683,
11 A.L.R. 1222.
DIGAMA, or DIGAMY. Second marriage; mar-
riage to a second wife after the death of the first,
as "bigamy," in law, is having two wives at once.
Originally, a man who married a widow, or .mar-
ried again after the death of his wife, was said
to be guilty of bigamy. Co.Litt. 40b, note.
DIGEST. A collection or compilation, embodying
the chief matter of numerous books in one, dis-
posed under proper heads or titles, and usually by
an alphabetical arrangement, for facility in ref-
erence.
As a legal term, "digest" is to be distinguished from
"abridgment." The latter is a summary or epitome of the
contents of a single work, in which, as a rule, the original
order or sequence of parts is preserved, and in which the
principal labor of the compiler is in the matter of consoli-
dation. A digest is wider in its scope ; is made up of
quotations or paraphrased passages ; and has its own sys-
tem of classification and arrangement. An "index" mere-
ly points out the places where particular matters may be
found, without purporting to give such matters in extenso.
A "treatise" or "commentary" is not a compilation, but an
original composition, though it may include quotations and
excerpts.
A reference to the "Digest," or "Dig.," is always
understood to designate the Digest (or Pandects)
of the Justinian collection; that being the digest
par eminence, and the authoritative compilation
of the Roman law.
The American Digest System embraces the Cen-
tury, First, Second, Third, Fourth Decennials, and
General Digest. It covers the decisions of all
American courts of last resort, State and Federal,
from 1658 to date, under one uniform classifica-
tion. The First Decennial, Second Decennial,
Third Decennial, Fourth Decennial and General
Digest, are Key-Numbered. There are also the
United States Supreme Court Digest, covering all
cases in that court, and the Federal Digest, cov-
ering the Federal Reporter, Federal Supplement
and the Supreme Court Reporter.
DIGESTA. Digests. One of the titles of the Pan-
dects of Justinian. Inst. Prcem, § 4. Bracton
uses the singular, "Digestum." Bract. fol. 19.
DIGESTS. The ordinary name of the Pandects of
Justinian, which are now usually cited by the ab-
breviation "Dig." instead of "Ff.," as formerly.
Sometimes called "Digest," in the singular.
DIGGING. Has been held as synonymous with
"excavating," and not confined to the removal of
earth. Sherman v. New York, 1 N.Y. 316.
DIGNITARY. In canon law. A person holding an
ecclesiastical benefice or dignity, which gave him
some pre-eminence above mere priests and canons.
To this class exclusively belonged all bishops,
deans, archdeacons, etc.; but it now includes all
the prebendaries and canons of the church.
Brande.
DIGNITY. In English law. An honor; a title,
station, or distinction of honor. Dignities are a
species of incorporeal hereditaments, in which a
person may have a property or estate. 2 Bl.Comm.
37; 1 Bl.Comm. 396; 1 Crabb, Real Prop. 468, et
seq.
DIJUDICATION. Judicial decision or determina-
tion.
DIKE. A bank, as of earth, thrown up to form a
barrier, line of demarcation, or the like; especially
an embankment to prevent inundation. Parker v.
Department of Labor and Industries, 14 Wash.2d
481, 128 P.2d 497, 500.
DIKING. Leveling land in arid regions, particu-
larly sagebrush land. An essential operation in
the conversion of such land into farms or or-
chards. Craig v. Crystal Realty Co., 89 Or. 25, 173
P. 322, 325.
DILACION. In Spanish law. A space of time
granted to a party to a suit in which to answer a
demand or produce evidence of a disputed fact.
DILAPIDATION. A species of ecclesiastical
waste which occurs whenever the incumbent suf-
fers any edifices of his ecclesiastical living to go to
ruin or decay. It is either voluntary, by pulling
down, or permissive, by suffering the church,
parsonage-houses, and other buildings thereunto
belonging, to decay. And the remedy for either
lies either in the spiritual court, where the canon
law prevails, or in the courts of common law. It
is also held to be good cause of deprivation if the
bishop, parson, or other ecclesiastical person dilap-
idates buildings or cuts down timber growing on
the patrimony of the church, unless for necessary
repairs; and that a writ of prohibition will also
lie against him in the common-law courts. 3 Bl.
Comm. 91.
The term is also used, in the law of landlord and
tenant, to signify the neglect of necessary re-
pairs to a building, or suffering it to fall into a
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DILAPIDATION
state of decay, or the pulling down of the building
or any part of it. Wall Estate Co. v. Standard
Box Co., 20 Cal.App. 311, 128 P. 1020, 1021.
Dilationes in lege sunt odiosce. Delays in law
are odious. Branch, Princ.
DILATORY. Tending or intended to cause delay
or to gain time or to put off a decision.
DILATORY DEFENSE. In chancery practice.
One the object of which is to dismiss, suspend,
or obstruct the suit, without touching the merits,
until the impediment or obstacle insisted on shall
be removed. 3 Bl.Comm. 301, 302.
DILATORY EXCEPTIONS are such as do not
tend to defeat the action, but only to retard its
progress.
DILATORY PLEAS. A class of defenses at com-
mon law, founded on some matter of fact not con-
nected with the merits of the case, but such as
might exist without impeaching the right of action
itself. They were either pleas to the jurisdiction,
showing that, by reason of some matter therein
stated, the case was not within the jurisdiction
of the court; or pleas in suspension, showing some
matter of temporary incapacity to proceed with
the suit; or pleas in abatement, showing some
matter for abatement or quashing the declaration.
3 Steph.Comm. 576. Parks v. McClellan, 44 N.J.
Law, 513, 558; Shaw v. Southern Ry. Co., 17 Ga.
App. 78, 86 S.E. 95.
DILIGENCE. Prudence; vigilant activity; at-
tentiveness; or care, of which there are infinite
shades, from the slightest momentary thought to
the most vigilant anxiety. People v. Hewitt, 78
Cal.App. 426, 248 P. 1021, 1024. The law recog-
nizes only three degrees of diligence: (1) Com-
mon or ordinary, which men, in general, exert
in respect of their own concerns; the standard is
necessarily variable with respect to the facts, al-
though it may be uniform with respect to the
principle. (2) High or great, which is extraor-
dinary diligence, or that which very prudent per-
sons take of their own concerns. (3) Low or
slight, which is that which persons of less than
common prudence, or indeed of no prudence at
all, take of their own concerns. Brown & Flowers
v. Central of Georgia Ry. Co., 197 Ala. 71, 72 So.
366, 367.
The civil law is in perfect conformity with the
common law. It lays down three degrees of dili-
gence,—ordinary,  (diligentia;)  extraordinary,
(exactissima diligentia;) slight, (levissima diligen-
tia.) Story, Bailm. 19.
There may be a high degree of diligence, a common de-
gree of diligence, and a slight degree of diligence, with
their corresponding degrees of negligence, and these can
be clearly enough defined for all practical purposes, and,
with a view to the business of life, seem to be all that are
really necessary. Common or ordinary diligence is that
degree of diligence which men in general exercise in re-
spect to their own concerns ; high or great diligence is of
course extraordinary diligence, or that which very prudent
persons take of their own concerns; and low or slight dili-
gence is that which persons of less than common prudence,
or indeed of any prudence at all, take of their own con-
cerns.
Ordinary negligence is the want of ordinary diligence;
slight, or less than ordinary, negligence is the want of
great diligence; and gross or more than ordinary negli-
gence is the want of slight diligence. Railroad Co. v. Rol-
lins, 5 Kan. 180.
In Scotch Law and Practice
Process of law, by which persons, lands, or ef-
fects are seized in execution or in security for
debt. Ersk. Inst. 2, 11, 1. Brande. Process for
enforcing the attendance of witnesses, or the pro-
duction of writings. Ersk. Inst. 4, 1, 71.
Other Classifications and Compound Terms
—Due diligence. Such a measure of prudence, ac-
tivity, or assiduity, as is properly to be expected
from, and ordinarily exercised by, a reasonable
and prudent man under the particular circum-
stances; not measured by any absolute standard,
but depending on the relative facts of the special
case. Perry v. Cedar Falls, 87 Iowa, 315, 54 N.W.
225.
—Extraordinary diligence. That extreme meas-
ure of care and caution which persons of unusual
prudence and circumspection use for securing and
preserving their own property or rights. Rail-
road Co. v. Huggins, 89 Ga. 494, 15 S.E. 848; Rail-
road Co. v. White, 88 Ga. 805, 15 S.E. 802.
—Great diligence. Such a measure of care, pru-
dence, and assiduity as persons of unusual pru-
dence and discretion exercise in regard to any and
all of their own affairs, or such as persons of or-
dinary prudence exercise in regard to very im-
portant affairs of their own. Litchfield v. White,
7 N.Y. 438, 57 Am.Dec. 534.
— High diligence. The same as great diligence.
—Low diligence. The same as slight diligence.
—Necessary diligence. That degree of diligence
which a person placed in a particular situation
must exercise in order to entitle him to the pro-.
tection of the law in respect to rights or claims
growing out of that situation, or to avoid being
left without redress on account of his own cul-
pable carelessness or negligence. Garahy v. Bay-
ley, 25 Tex.Supp. 302; Sanderson v. Brown, 57
Me. 312.
—Ordinary diligence is that degree of care which
men of common prudence generally exercise in
their affairs, in the country and the age in which
they live. Zell v. Dunkle, 156 Pa. 353, 27 A. 38.
— Reasonable diligence. A fair, proper and due
degree of care and activity, measured with refer-
ence to the particular circumstances; such dili-
gence, care, or attention as might be expected
from a man of ordinary prudence and activity.
Ford v. Engleman, 118 Va. 89, 86 S.E. 852, 855.
— Special diligence. The measure of diligence
and skill exercised by a good business man in his
particular specialty, which must be commensurate
with the duty to be performed and the individual
circumstances of the case; not merely the dili-
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DIPLOMACY
gence of an ordinary person or non-specialist.
Brady v. Jefferson, 5 Houst. (Del.) 79.
DILIGENT. Attentive and persistent in doing a
thing; steadily applied; active; sedulous; labori-
ous; unremitting; untiring. People v. Mancuso,
255 N.Y. 463, 175 N.E. 177, 179, 76 A.L.R. 514.
DILIGIATUS. (Fr. De lege ejectus, Lat.) Out-
lawed.
DILLIGROUT. In old English law. Pottage for-
merly made for the king's table on the coronation
day. There was a tenure in serjeantry, by which
lands were held of the king by the service of find-
ing this pottage at that solemnity.
DIME. A silver coin of the United States, of the
value of ten cents, or one-tenth of the dollar.
DIMIDIA, DIMIDIUM, DIMIDIUS. Half; a half;
the half.
DIMIDIETAS. The moiety or half of a thing.
DIMINISHED RESPONSIBILITY DOCTRINE.
A misnomer for doctrine under which proof of
mental derangement short of insanity is submitted
as evidence of lack of deliberate or premeditated
design. State v. Franco, 347 P.2d 312, 314, 66 N.M.
289, 78 A.L.R.2d 908.
DIMINUTIO. In the civil law. Diminution; a
taking away; loss or deprivation. Diminutio cap-
itis, loss of status or condition. See Capitis Dim-
inutio.
DIMINUTION. Incompleteness. A word signify-
ing that the record sent up from an inferior to a
superior court for review is incomplete, or not
fully certified. In such case the party may sug-
gest a "diminution of the record," which may be
rectified by a certiorari. 2 Tidd, Pr. 1109; Stepp
v. Stepp, 195 Ga. 595, 25 S.E.2d 6, 8.
DIMISI. In old conveyancing. I have demised.
Dimisi, concessi, et ad firmam tradidi, have de-
mised, granted, and to farm let. The usual words
of operation in a lease. 2 Bl.Comm. 317, 318.
DIMISIT. In old conveyancing. [He] has de
mised. See Dimisi.
DIMISSORL1E LITTER/E. In the civil law. Let-
ters dimissory or dismissory, commonly called
"apostles," (quce vulgo apostoli dicuntur.) Dig. 50,
16, 106. See Apostoli, Apostles.
DIMISSORY LETTERS. Where a candidate for
holy orders has a title of ordination in one dio-
cese in England, and is to be ordained in another,
the bishop of the former diocese gives letters di-
missory to the bishop of the latter to enable him
to ordain the candidate. Holthouse.
DENTARCHY. A government of two persons.
DINERO.
In Roman Law
A civil division of the Roman empire embracing
several provinces. Calvin.
Black's Law Dictionary Revised 4th ta.-35
In Spanish Law
Money. Dinero contado, money counted.
White, New Recop. b. 2, tit. 13, c. 1, § 1.
DIOCESAN. Belonging to a diocese; a bishop, as
he stands related to his own clergy or flock.
DIOCESAN COURTS. In English law. The con-
sistorial courts of each diocese, exercising general
jurisdiction of all matters arising locally within
their respective limits, with the exception of places
subject to peculiar jurisdiction; deciding all mat-
ters of spiritual discipline,—suspending or depriv-
ing clergymen,--and administering the other
branches of the ecclesiastical law. 2 Steph.Com.
672.
DIOCESAN MISSION. A mission which does
missionary work in single diocese. Domestic &
Foreign Missionary Soc. v. Crippled Children's
Hospital, 163 Va. 114, 176 S.E. 193.
DIOCESE. The territorial extent of a bishop's ju-
risdiction. The circuit of every bishop's jurisdic-
tion. Co. Litt. 94; 1 Bl.Comm. 111.
DIOICHIA. The district over which a bishop ex-
ercised his spiritual functions.
DIP, v. To immerse for a short time in any liq-
uid; to place in fluid and withdraw again; the act
of dipping or immersing; a plunge; a brief bath,
as the dip of the oars; a dip in the sea. Standard
Dictionary, "dip." Covington County v. Picker-
ing, 123 Miss. 20, 85 So. 114, 115.
DIP, n. In mining law. The line of declination
of strata; the angle which measures the deviation
of a mineralized vein or lode from the vertical
plane; the slope or slant of a vein, away from the
perpendicular, as it goes downward into the earth;
distinguished from the "strike" of the vein, which
is its extension in the horizontal plane, or its
lengthwise trend or course with reference to the
points of the compass. King v. Mining Co., 9
Mont. 543, 24 P. 200.
In Animal Husbandry
A liquid preparation into which infected animals
may be plunged for eradication of fever ticks, or
other sanitary or medical purposes. Ungles-Hog-
gette Mfg. Co. v. Farmers' Hog & Cattle Powder
Co., C.C.A.Neb., 232 F. 116, 117.
DIPLOMA. In the civil law. A royal charter;
letters patent granted by a prince or sovereign.
Calvin.
An instrument given by colleges and societies on
the conferring of any degrees. State v. Gregory,
83 Mo. 130, 53 Am.Rep. 565.
A license granted to a physician, etc., to prac-
tice his art or profession. See Brooks v. State, 88
Ala. 122, 6 So. 902.
DIPLOMACY. The science which treats of the
relations and interests of nations with nations.
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DIPLOMACY
Negotiation or intercourse between nations
through their representatives. The rules, cus-
toms, and privileges of representatives at foreign
courts.
DIPLOMATIC AGENT. In international law. A
general name for all classes of persons charged
with the negotiation, transaction, or superintend-
ence of the diplomatic business of one nation at
the court of another. See Rev.St.U.S. § 1674 (22
USCA §§ 40, 51).
DIPLOMATICS. The science of diplomas, or of
ancient writings and documents; the art of judg-
ing of ancient charters, public documents, dip-
lomas, etc., and discriminating the true from the
talse. Webster.
DIPPING. The practice of taking snuff by rub-
bing teeth or gums with stick or brush dipped in
snuff. Federal Trade Commission v. American
Snuff Co., C.C.A., 38 F.2d 547, 550.
DIPSOMANIA. In medical jurisprudence. A
mental disease characterized by an uncontrollable
desire for intoxicating drinks. An irresistible im-
pulse to indulge in intoxication, either by alcohol
or other drugs. Ballard v. State, 19 Neb. 614, 28
N.W. 271; State v. Wallace, 170 Or. 60, 131 P.2d
222, 223.
DIPSOMANIAC. A person subject to dipsoman-
ia. One who has an irresistible desire for alco-
holic liquors. Taylor v. Koenigstein, 128 Neb. 809,
260 N.W. 544. See Insanity.
DIPTYCHA. Diptychs; tablets of wood, metal,
or other substance, used among the Romans for
the purpose of writing, and folded like a book of
two leaves. The diptychs of antiquity were es-
pecially employed for public registers. They were
used in the Greek, and afterwards in the Roman,
church, as registers of the names of those for
whom supplication was to be made, and are rank-
ed among the earliest monastic records. Burrill.
DIRECT, v. To point to; guide; order; com-
mand; instruct. In re Durkee's Estate, 47 N.Y.S.
2d 721, 725, 726, 183 Misc. 382.
To advise; suggest; request. Bowden v. Cum-
berland County, 123 Me. 359, 123 A. 166, 168.
To assume the role of a director, one whose di-
rections are binding. Gentle v. Frederick, 234
Ala. 184, 174 So. 606, 607.
DIRECT, adj. Immediate; proximate; by the
shortest course; without circuity; operating by
an immediate connection or relation, instead of
operating through a medium; the opposite of in-
direct. Trexler Lumber Co. v. Allemannia Fire
Ins. Co. of Pittsburgh, 289 Pa. 13, 136 A. 856, 858;
Western Assur. Co. v. Hann, 201 Ala. 376, 78 So.
232, 234; Carter v. Carter Coal Co., App.D.C., 298
U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160.
In the usual or natural course or line; immedi-
ately upwards or downwards; as distinguished
from that which is out of the line, or on the side
of it; the opposite of collateral.
In the usual or regular course or order, as dis-
tinguished from that which diverts, interrupts, or
opposes; the opposite of cross or contrary.
Without any intervening medium, agency or in-
fluence; unconditional. General Finance Co. v.
Powell, 118 P.2d 751, 753, 112 Mont. 535.
DIRECT ATTACK. A direct attack on a judg-
ment or decree is an attempt, for sufficient cause,
to have it anrfulled, reversed, vacated, corrected,
declared void, or enjoined, in a proceeding institut-
ed for that specific purpose, such as an appeal,
writ of error, bill of review, or injunction to re-
strain its execution; distinguished from a collat-
eral attack, which is an attempt to impeach the
validity or binding force of the judgment or decree
as a side issue or in a proceeding instituted for
some other purpose. Morrill v. Morrill, 20 Or. 96,
25 P. 362; In re Melgaard's Will, 200 Minn. 493,
74 N.W. 641, 649. A direct attack on a judicial
proceeding is an attempt to void or correct it in
some manner provided by law.
DIRECT CAUSE. The active, efficient cause that
sets in motion a train of events which brings about
a result without the intervention of any force
started and working actively from a new and in-
dependent source. Anderson v. Steinle, 289 Ill.
App. 167, 6 N.E.2d 879. See, Cause.
DIRECT EVIDENCE. Is that means of proof
which tends to show the existence of a fact in
question, without the intervention of the proof
of any other fact, and is distinguished from cir-
cumstantial evidence, which is often called "in-
direct." See Brown; State v. Calder, 23 Mont. 504,
59 P. 903.
Direct evidence means evidence which in the first in-
stance applies directly to the factum probandum, or which
immediately points to a question at issue, or is evidence
of the precise fact in issue and on trial by witnesses who
can testify that they saw the acts done or heard the words
spoken which constituted the precise fact to be proved.
Garner v. New Jersey Fidelity & Plate Glass Ins. Co., Mo.
App., 200 S.W. 448, Greenl.Ev. § 13; 1 Stark, Ev. 19;
Tayl, Ex. 84.
Proof of facts by witnesses who saw acts done or heard
words spoken. Texas & N. 0. R. Co. v. Warden, 125 Tex.
193, 78 S.W.2d 164, 167, 125 Tex. 193.
DIRECT EXAMINATION. In practice. The first
interrogation or examination of a witness, on the
merits, by the party on whose behalf he is called.
This is to be distinguished from an examination in pais,
or on the voir dire, which is merely preliminary, and is
had when the competency of the witness is challenged ;
from the cross-examination, which is conducted by the
adverse party ; and from the redirect examination which
follows the cross-examination, and is had by the party who
first examined the witness.
DIRECT INJURY. A wrong which directly re-
sults in the violation of a legal right and which
must exist to permit a court to determine the
constitutionality of an act of Congress. Wallace
v. Ganley, 95 F.2d 364, 366, 68 App.D.C. 235.
DIRECT INTEREST. A direct interest, such as
would render the interested party incompetent to
testify in regard to the matter, is an interest which
is certain, and not contingent or doubtful. Rine
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v. Rine, 100 Neb. 225, 158 N.W. 941, 943. A mat-
ter which is dependent alone on the successful
prosecution of an execution cannot be considered
as uncertain, or otherwise than direct, in this
sense. In re Van Alstine's Estate, 26 Utah, 193, 72
P. 942.
Direct line. See Descent.
DIRECT LOSS. One resulting immediately and
proximately from the occurrence and not remote-
ly from some of the consequences or effects there-
of. Ermentrout v. Insurance Co., 63 Minn. 305, 65
N.W. 635, 30 L.R.A. 346, 56 Am.St.Rep. 481. See
Loss.
DIRECT PAYMENT. One which is absolute and
unconditional as to the time, amount, and the per-
sons by whom and to whom it is to be made. Peo-
ple v. Boylan, C.C.Colo., 25 F. 595; Hurd v. McClel-
lan, 14 Colo. 213, 23 P. 792.
As to direct "Consanguinity," "Contempt,"
"Damages," "Examination," "Interrogatories,"
"Tax," and "Trust," see those titles.
DIRECT TAX. One that is imposed directly upon
property, according to its value. It is generally
spoken of as a property tax or an ad valorem tax.
City of De Land v. Florida Public Service Co.,
161 So. 735, 739, 119 Fla. 804.
Under federal law. One that must be appor-
tioned among the states according to population;
a capitation tax, or a tax on real estate. Common-
wealth of Pennsylvania ex rel. Schnader v. Fix,
D.C.Pa., 9 F.Supp. 272, 276.
DIRECTION. The act of governing; manage-
ment; superintendence. Denton v. Yazoo & M.
V. R. Co., Miss., 284 U.S. 305, 52 S.Ct. 141, 142, 76
L.Ed. 310. Also the body of persons (called "di-
rectors") who are charged with the management
and administration of a corporation or institution.
The charge or instruction given by the court
to a jury upon a point of law arising or involved
in the case, to be by them applied to the facts in
evidence.
The clause of a bill in equity containing the ad-
dress of the bill to the court.
That which is imposed by directing; a guiding
or authoritative instruction; order; command.
State ex rel. Johnson v. Tilley, 137 Neb. 173, 288 N.
W. 521, 524; Hughes v. Van Bruggen, 44 N.M.
534, 105 P.2d 494, 496.
The line or course upon which anything is mov-
ing or aimed to move. Ruff v. Federal Tea Co.,
129 Conn. 455, 29 A.2d 441, 442.
DIRECTLY. In a direct way without anything
intervening; not by secondary, but by direct,
means. Clark v. Warner, 85 Okl. 153, 204 P. 929,
934; Olsen v. Standard Oil Co., 188 Cal. 20, 204 P.
393, 396.
DIRECTOR OF THE MINT. An officer having
the control, management, and superintendence of
the United States mint and its branches. He is
appointed by the president, by and with the
advice and consent of the senate.
DIRECTOR. One who, or that which directs; as
one who directs or regulates, guides or orders; a
manager or superintendent, or a chief administra-
tive official. State ex inf. McKittrick v. Bode, 342
Mo. 162, 113 S.W.2d 805, 808.
DIRECTORS. Persons appointed or elected ac-
cording to law, authorized to manage and direct
the affairs of a corporation or company. The
whole of the directors collectively form the board
of directors. Jones Min. Co. v. Cardiff Min. Co.,
56 Utah, 449, 191 P. 426, 428.
DIRECTORY, adj. A provision in a statute, rule
of procedure, or the like, which is a mere direction
or instruction of no obligatory force, and involv-
ing no invalidating consequence for its disregard,
as opposed to an imperative or mandatory provi-
sion, which must be followed. In re Opinion of
the Justices, 124 Me. 453, 126 A. 354, 363. The
general rule is that the prescriptions of a statute
relating to the performance of a public duty are
so far directory that, though neglect of them may
be punishable, yet it does not affect the validity
of the acts done under them, as in the case of a
statute requiring an officer to prepare and deliver
a document to another officer on or before a cer-
tain day. And see Pearse v. Morrice, 2 Adol. &
El. 94; Nelms v. Vaughan, 84 Va. 696, 5 S.E. 704.
A "directory" provision in a statute is one, the observ-
ance of which is not necessary to the validity of the pro-
ceeding to which it relates; State v. Barnell, 109 Ohio St.
246, 142 N.E. 611, 613; one which leaves it optional with
the department or officer to which it is addressed to obey
or not as he may see fit; In re Thompson, 94 Neb. 658,
144 N.W. 243, 244.
Statutory requisitions are deemed "directory" only when
they relate to some immaterial matter where a compliance
is matter of convenience rather than of substance. This
mode of getting rid of a statutory provision by calling it
"directory" is not only unsatisfactory, on account of the
vagueness of the rule itself, but it is the exercise of a
dispensing power by the courts, which approaches so near
legislative discretion that it ought to be resorted to with
reluctance, only in extraordinary cases, where great public
mischief would otherwise ensue, or important private in-
terests demand the application of the rule. Ellis v. Till-
man, 125 Miss. 678, 88 So. 281, 283.
Directory calls. Those which merely direct the
neighborhood where the different calls may be
found, whereas "locative calls" are those which
serve to fix boundaries. Cates v. Reynolds, 143
Tenn. 667, 228 S.W. 695, 696.
Directory statute. Under a general classifica-
tion, statutes are either "mandatory" or "direc-
tory," and, if mandatory, they prescribe, in addi-
tion to requiring the doing of the things specified,
the result that will follow if they are not done,
whereas, if directory, their terms are limited to
what is required to be done. Hudgins v. Moores-
ville Consol. School Dist., 312 Mo. 1, 278 S.W. 769,
770. A statute is mandatory when the provision
of the statute is the essence of the thing required
to be done; otherwise, when it relates to form and
manner, and where an act is incident, or after ju-
risdiction acquired, it is directory merely. State
v. Kozer, 108 Or. 550, 217 P. 827, 832.
Directory trust. Where, by the terms of a trust,
the fund is directed to be vested in a particular
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manner till the period arrives at which it is to be
appropriated, this is called a "directory trust." It
is distinguished from a discretionary trust, in
which the trustee has a discretion as to the man-
agement of the fund. Deaderick v. Cantrell, 10
Yerg. (Tenn.) 272, 31 Am.Dec. 576.
DIRECTORY, n. Book containing names, addres-
ses, and occupations of inhabitants of city. Also
any list or compilation, usually in book or pamph-
let form, of persons, firms or corporations forming
some class separate and distinct from others, e.
g., telephone directory, hotel directory, etc.
American Travel & Hotel Directory Co. v. Gehring
Publishing Co., D.C., 4 F.2d 415.
DIRIBITORES. In Roman law. Officers who dis-
tributed ballots to the people, to be used in voting.
Tayl. Civil Law, 192.
DIRIMENT IMPEDIMENTS. In canon law. Ab-
solute bars to marriage, which would make it null
oh initio.
DIRT. Filth or excrement; garden loam; earth
or soil, especially when loose; dust; garden earth.
Highley v. Phillips, 176 Md. 463, 5 A.2d 824, 827.
DISABILITY. The want of legal capability to
perform an act. Berkin v. Marsh, 18 Mont. 152, 44
Pac. 528, 56 Am.St.Rep. 565.
A crippled condition. Kimbrough v. National
Protective Ins. Ass'n, 225 Mo.App. 913, 35 S.W.2d
654, 657.
At the present day, disability is generally used to indi-
cate an incapacity for the full enjoyment of ordinary le-
gal rights; thus married women, persons under age, insane
persons, and felons convict are said to be under disability.
Sometimes the term is used in a more limited sense, as
when it signifies an impediment to marriage, or the re-
straints placed upon clergymen by reason of their spiritual
avocations. Mozley & Whitley.
Classification
Disability is either general or 'special; the for-
mer when it incapacitates the person for the per-
formance of all legal acts of a general class, or
giving to them their ordinary legal effect; the
latter when it debars him from one specific act.
State ex rel. Sathre v. Moodie, 258 N.W. 558, 567,
65 N.D. 340. Disability is also either personal or
absolute; the former where it attaches to the
particular person, and arises out of his status,
his previous act, or his natural or juridical in-
capacity; State ex rel. Olson v. Langer, 65 N.D.
68, 256 N.W. 377; the latter where it originates
with a particular person, but extends also to his
descendants or successors. Lord de le Warre's
Case, 6 Coke, la; Avegno v. Schmidt, 5 Sup.Ct.
487, 113 U.S. 293, 28 L.Ed. 976. Considered with
special reference to the capacity to contract a
marriage, disability is either canonical or civil;
a disability of the former class makes the mar-
riage voidable only, while the latter, in general,
avoids it entirely. However, it has been held that,
in the absence of statute, a court does not have ju-
risdiction to annul a marriage for a canonical dis-
ability. D. v. D., 2 Terry 263, 20 A.2d 139, 141.
The term civil disability is also used as equiva-
lent to legal disability, both these expressions
meaning disabilities or disqualifications created
by positive law, as distinguished from physical dis-
abilities. Stieffel v. Valentine Sugars, 188 La.
1091, 179 So. 6, 15. A physical disability is a dis-
ability or incapacity caused by physical defect or
infirmity, or bodily imperfection, or mental weak-
ness or alienation; as,distinguished from civil dis-
ability, which relates to the civil status or con-
dition of the person, and is imposed by the law.
Absence of competent physical, intellectual, or
moral powers; impairment of earning capacity ;
loss of physical function that reduces efficiency;
inability to work. Rorabaugh v. Great Eastern
Casualty Co., 117 Wash. 7, 200 P.2d 587, 590.
Temporary Disability
Temporary, as distinguished from permanent,
disability is a condition that exists until the in-
jured employee is as far restored as the permanent
character of the injuries will permit. Consolidat-
ed Coal Co. of St. Louis v. Industrial Commission,
311 Ill. 61, 142 N.E. 498, 500.
Total Disability
Total disability to follow insured's usual occu-
pation arises where he is incapacitated from per-
forming any substantial part of his ordinary du-
ties, though still able to perform a few minor du-
ties and be present at his place of business. Fi-
delity & Casualty Co. of New York v. Bynum, 221
Ky. 450, 298 S.W. 1080, 1082. "Total disability"
within an accident policy does not mean absolute
physical disability to transact any business per-
taining to insured's occupation, but disability from
performing substantial and material duties con-
nected with it. Jacobs v. Loyal Protective Ins.
Co., 97 Vt. 516, 124 A. 848, 852; Brown v. Missouri
State Life Ins. Co., 136 S.C. 90, 134 S.E. 224-225.
The term may also apply to any impairment of
mind or body rendering it impossible for insured
to follow continuously a substantially gainful oc-
cupation without seriously impairing his health,
the disability being permanent when of such na-
ture as to render it reasonably certain to continue
throughout the lifetime of insured. Starnes v. U.
S., D.C.Tex., 13 F.2d 212, 213. See, also, Wholly
Disabled.
DISABLE. Ordinarily, to take away the ability
of, to render incapable of proper and effective ac-
tion. Federal Union Life Ins. Co. of Cincinnati,
Ohio v. Richey's Adm'x, 256 Ky. 262, 75 S.W.2d
767, 768.
In the old language of pleading, to disable is to
take advantage of one's own or another's disabili-
ty. Thus, it is "an express maxim of the common
law that the party shall not disable himself;"
but "this disability to disable himself * * * is
personal." 4 Coke, 123b.
DISABLING STATUTES. These are acts of par-
liament, restraining and regulating the exercise
of a right or the power of alienation; the term is
specially applied to 1 Eliz. c. 19, and similar acts
restraining the power of ecclesiastical corporations
to make leases.
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DISADVOCARE. To deny a thing.
DISAFFIRM. To repudiate; to revoke a consent
once given; to recall an affirmance. To refuse
one's subsequent sanction to a former act; to dis-
claim the intention of being bound by an antece-
dent transaction.
DISAFFIRMANCE. The repudiation of a former
transaction. The refusal by one who has the legal
power to refuse, (as in the case of a voidable con-
tract,) to abide by his former acts, or accept the
legal consequences of them. It may either be
"express" (in words) or "implied" from acts in-
consistent with a recognition of validity of former
transaction. Ryan v. Morrison, 40 Okl. 49, 135
P. 1049, 1050.
DISAFFOREST. To restore to their former condi-
tion lands which have been turned into forests.
To remove from the operation of the forest laws.
2 Bl.Comm. 416.
DISAGREEMENT. Difference of opinion or want
of uniformity or concurrence of views; as, a dis-
agreement among the members of a jury, among
the judges of a court, or between arbitrators. Dar-
nell v. Lyon, 85 Tex. 466, 22 S.W. 304.
In Real Property Law
The refusal by a grantee, lessee, etc., to accept
an estate, lease, etc., made to him; the annulling
of a thing that had essence before. No estate can
be vested in a person against his will. Conse-
quently no one can become a grantee, etc., without
his agreement. The law implies such an agree-
ment until the contrary is shown, but his disagree-
ment renders the grant, etc., inoperative. Whar-
ton.
DISALT. To disable a person.
DISALLOW. To refuse to allow, to deny the va-
lidity of, to disown or reject. Stewart v. Yellow-
tail, D.C.Mont., 35 F.Supp. 798, 799.
DISAPPROPRIATION. In ecclesiastical law.
This is where the appropriation of a benefice is
severed, either by the patron presenting a clerk or
by the corporation which has the appropriation
being dissolved. 1 Bl.Comm. 385.
DISAPPROVE. To pass unfavorable judgment
upon; to refuse official approbation to; to disal-
low; to decline to sanction; to refuse to confirm,
ratify or consent to. Stewart v. Yellowtail, D.C.
Mont., 35 F.Supp. 798, 799.
DISASTER. A sudden and ruinous misfortune,
hence, one who had been pronounced by eminent
physicians to be afflicted with dementia praecox,
who had nervous breakdown, and who was with-
out funds or ability to earn them by either mental
or physical exertion, was overtaken by disaster.
Robison v. Elston Bank & Trust Co., 113 Ind.App.
633, 48 N.E.2d 181, 188.
DISAVOW. To repudiate the unauthorized acts
of an agent; to deny the authority by which he
assumed to act.
DISBAR. In England, to deprive a barrister per-
manently of the privileges of his position; it is
analogous to striking an attorney off the rolls. In
America, the word describes the act of a court in
rescinding an attorney's license to practice at its
bar. Gresham v. Superior Court of Los Angeles
County, 44 Cal.App.2d 664, 112 Pd 965, 967.
DISBOCATIO. In old English law. A conversion
of wood grounds into arable or pasture; an assart-
ing. Cowell. See Assart.
DISBURSEMENTS. Money paid out or expended
for which one is entitled to a credit upon render-
ing an account of his doings. Tinkler v. Powell,
23 Wyo. 352, 151 P. 1097, 1098.
The term is also used under the codes of civil
procedure, to designate the expenditures neces-
sarily made by a party in the progress of an ac-
tion, aside from the fees of officers and court
costs, which are allowed, eo nomine, together with
costs. Fertilizer Co. v. Glenn, 48 S.C. 494, 26 S.E.
796; Sasser v. Stuyvesant Ins. Co., 258 App.Div.
340, 16 N.Y.S.2d 401, 402, 403.
DISCARCARE. In old English law. To dis-
charge, to unload; as a vessel. Carcare et discar-
care; to charge and discharge; to load and un-
load. Cowell.
DISCARGARE. In old European law. To dis-
charge or unload, as a wagon. Spelman.
DISCEPTIO CAUSE. In Roman law. The argu-
ment of a cause by the counsel on both sides.
Calvin.
DISCHARGE. To release, Clark v. Sperry, 125
W.Va. 718, 25 S.E.2d 870, 872; liberate, People ex
rel. La Velle v. Trophagen, 236 N.Y.S. 214, 216, 134
Misc. 604; annul, Glaser v. Haskin, 140 Or. 392,
13 P.2d 1071, 1074; unburden; disincumber; dis-
miss, The Losmar, D.C.Md., 20 F.Supp. 887, 891;
extinguish an obligation, Mazur v. Stein, 314 Ill.
App. 529, 41 N.E.2d 979, 981; remove from employ-
ment, Bourne v. Board of Education of City of
Roswell, 46 N.M. 310, 128 P.2d 733, 735.
In the Law of Contracts
To cancel or unloose the obligation of a con-
tract; to make an agreement or contract null and
inoperative. As a noun, the word means the act
or instrument by which the binding force of a con-
tract is terminated, irrespective of whether the
contract is carried out to the full extent contem-
plated (in which case the discharge is the result of
performance) or is broken off before complete
execution. Rivers v. Blom, 163 Mo. 442, 63 S.W.
812.
Discharge is a generic term; its principal species are re-
scission, release, accord and satisfaction, performance,
judgment, composition, bankruptcy, merger (q. v.) .Leake, Cont. 413.
As applied to demands, claims, rights of action,
incumbrances, etc., to discharge the debt or claim
is to extinguish it, to annul its obligatory force,
to satisfy it. And here also the term is generic;
thus a debt, a mortgage, a legacy, may be dis-
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DISCHARGE
charged by payment or performance, or by any
act short of that, lawful in itself, which the credi-
tor accepts as sufficient. Blackwood v. Brown,
29 Mich. 484; Rangely v. Spring; 28 Me. 151. To
discharge a person is to liberate him from the
binding force of an obligation, debt, or claim.
There is a distinction between a "debt discharged" and
a "debt paid." When discharged the debt still exists
though divested of its character as a legal obligation dur-
ing the operation of the discharge. Something of the
original vitality of the debt continues to exist which may
be transferred, even though the transferee takes it sub-
ject to its disability incident to the discharge. The fact
that it carries something which may be a consideration for
a new promise to pay, so as to make an otherwise worth-
less promise a legal obligation, makes it the subject of
transfer by assignment. Stanek v. White, 172 Minn. 390,
215 N.W. 784.
Discharge by operation of law is where the discharge
takes place, whether it was intended by the parties or
not; thus, if a creditor appoints his debtor his executor,
the debt is discharged by operation of law, because the
executor cannot have an action against himself. Co. Litt.
264b, note 1; Williams, Ex'rs, 1216; Chit.Cont. 714.
In Bankruptcy Practice
The discharge of the bankrupt is the step which
regularly follows the adjudication of bankruptcy
and the administration of his estate. By it he is
released from the obligation of all his debts which
were or might be proved in the proceedings, so
that they are no longer a charge upon him, and
so that he may thereafter engage in business and
acquire property without its being liable for the
satisfaction of such former debts. Pitcairn v.
Scully, 252 Pa. 82, 97 A. 120, 121.
In Civil Practice
To discharge a rule, an order, an injunction, a
certificate, process of execution, or in general any
proceeding in a court, is to cancel or annul it, or
to revoke it, or to refuse to confirm its original
provisional force. Nichols v. Chittenden, 14 Colo.
App. 49, 59 P. 954.
To discharge a jury is to relieve them from any
further consideration of a cause. This is done
when the continuance of the trial is, by any cause,
rendered impossible; also when the jury, after
deliberation, cannot agree on a verdict.
In Criminal Practice
The act by which a person in confinement, held
on an accusation of some crime or misdemeanor,
is set at liberty. The writing containing the order
for his being so set at liberty is also called a "dis-
charge." In re Eddinger, 236 Mich. 668, 211 N.W.
54.
In Equity Practice
In the process of accounting before a master
in chancery, the discharge is a statement of ex-
penses and counter-claims brought in and filed, by
way of set-off, by the accounting defendant;
which follows the charge in order.
In Maritime Law
The unlading or unlivery of a cargo from a ves-
sel. The Bird of Paradise v. Heyneman, 5 Wall.
557, 18 L.Ed. 662.
In Military Law
The release or dismissal of a soldier, sailor, or
marine, from further military service, either at
the expiration of his term of enlistment, or previ-
ous thereto on special application therefor, or as
a punishment. An "honorable" discharge is one
granted at the end of an enlistment and accom-
panied by an official certificate of good conduct
during the service. A "dishonorable" discharge is
a dismissal from the service for bad conduct or as
a punishment imposed by sentence of a court-mar-
tial for offenses against the military law. There
is also in occasional use a form of "discharge
without honor," which implies censure, but is not
in itself a punishment. U. S. v. Sweet, 23 S.Ct.
638, 189 U.S. 471, 47 L.Ed. 907.
A discharge from the army is the discharge given one
who was actually in military service, as distinguished
from a mere discharge from draft. Patterson v. Lamb,
App.D.C., 67 S.Ct. 448, 329 U.S. 539, 91 L.Ed. 485.
A discharge from draft is the discharge given selectees
who reported for military service in World War I and were
rejected at camp after induction for unfitness, dependency
and the like. Thus a selectee who reported on November
11, 1918 but was told that draft call was cancelled because
of the armistice was properly given a discharge from draft,
rather than a discharge from the army and could not claim
veterans' rights. Patterson v. Lamb, App.D.C., 67 S.Ct.
448, 329 U.S. 539, 91 L.Ed. 485.
DISCIPLINE. Instruction, comprehending the
communication of knowledge and training to ob-
serve and act in accordance with rules and orders.
In re Swenson, 183 Minn. 602, 237 N.W. 589.
Correction, chastisement, punishment, penalty.
Rules and regulations. Reutkemeier v. Nolte, 179
Iowa, 342, 161 N.W. 290, 292, L.R.A.1917D, 273.
DISCLAIMER. The repudiation or renunciation
of a claim or power vested in a person or which
he had formerly alleged to be his. The refusal,
or rejection of an estate or right offered to a per-
son. The disavowal, denial, or renunciation of an
interest, right, or property imputed to a person
or alleged to be his. Also the declaration, or the
instrument, by which such disclaimer is published.
Moores v. Clackamas County, 40 Or. 536, 67 P.
662.
Of Estate
The act by which a party refuses to accept an
estate which has been conveyed to him. Thus,
a trustee who releases to his fellow-trustees his
estate, and relieves himself of the trust, is said
to disclaim. Kentucky Union Co. v. Cornett, 112
Ky. 677, 66 S.W. 728.
A renunciation or a denial by a tenant of his
landlord's title, either by refusing to pay rent,
denying any obligation to pay, or by setting up a
title in himself or a third person, and this is a
distinct ground of forfeiture of the lease or other
tenancy, whether of land or tithe. See 16 Ch. Div.
730.
In Patent Law
When the title and specifications of a patent
do not agree, or when part of that which it covers
is not strictly patentable, because neither new nor
useful, the patentee is empowered, with leave of
the court, to enter a disclaimer of any part of
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DISCOUNT
either the title or the specification, and the dis-
claimer is then deemed to be part of the letters
patent or specification, so as to render them valid
for the future. Permutit Co. v. Wadham, C.C.A.
Mich., 15 F.2d 20, 21.
In Pleading
A renunciation by the defendant of all claim to
the subject of the demand made by the plaintiff's
bill. Wilson v. McCoy, 93 W.Va. 667, 117 S.E. 473,
475.
DISCLAMATION. In Scotch law. Disavowal of
tenure; denial that one holds lands of another.
Bell.
DISCLOSE. To bring into view by uncovering, to
lay bare, to reveal to knowledge, to free from
secrecy or ignorance, or make known. State v.
Krokston, 187 Mo.App. 67, 172 S.W. 1156, 1157.
DISCLOSURE. Revelation; the impartation of
that which is secret. Commonwealth v. Chesa-
peake & 0. Ry. Co., 137 Va. 526, 120 S.E. 506, 509.
That which is disclosed or revealed. Webster,
Dict.
In patent law, the specification; the statement
of the subject-matter of the invention, or the
manner in which it operates. Westinghouse Elec-
tric & Mfg. Co. v. Metropolitan Electric Mfg. Co.,
C.C.A.N.Y., 290 F. 661, 664.
What any patentee has invented is theoretically what he
discloses, and the "disclosure" is the specification while
a "claim" is a definition of that which has been disclosed
in the specification; the disclosure telling how to do that
of which the claimant attempts definition. Westinghouse
Electric & Mfg. Co. v. Metropolitan Electric Mfg. Co., C.C.
A.N.Y., 290 F. 661, 664.
DISCOMMON. To deprive commonable lands of
their commonable quality, by inclosing and ap-
propriating or improving them.
DISCONTINUANCE.
In Pleading
That technical interruption of the proceedings
in an action which follows where a defendant
does not answer the whole of the plaintiff's de-
claration, and the plaintiff omits to take judg-
ment for the part unanswered. Steph. Pl. 216,
217.
In Practice
The termination of an action, in consequence
of the plaintiff's omitting to continue the process
or proceedings by proper entries on the record.
3 Bl.Comm. 296; 1 Tidd, Pr. 678; 2 Arch.Pr.K.B.
233. Hadwin v. Railway Co., 67 S.C. 463, 45 S.E.
1019.
In practice, a discontinuance is a chasm or gap left by
neglecting to enter a continuance. By our practice, a
neglect to enter a continuance, even in a defaulted action,
by no means puts an end to it, and such actions may al-
ways be brought forward. Taft v. Northern Transp. Co.,
56 N.H. 416; Porter v. Watkins, 196 Ala. 333, 71 So. 687,
688.
The cessation of the proceedings in an action
where the plaintiff voluntarily puts an end to it,
either by giving notice in writing to the defendant
before any step has been taken in the action sub-
sequent to the answer, or at any other time by
order of the court or a judge; a non-suit; dis-
missal. Payne v. Buena Vista Extract Co., 124
Va. 296, 98 S.E. 34, 39.
In practice, discontinuance and dismissal import the same
thing, viz., that the cause is sent out of court. Thurman v.
James, 48 Mo. 235.
In Public Works
Refers to the termination or abandonment of
a project, structure, highway, or the like. Fulton
County v. Board of Hudson River Regulating Dist.,
248 N.Y.S. 8, 10, 231 App.Div. 408.
Ending, causing to cease, ceasing to use, giving
up, leaving off. Keenan v. Broad River Power
Co., 163 S.C. 133, 161 S.E. 330, 331.
In Zoning Ordinances
Synonymous with abandonment. State ex rel.
Schaetz v. Mander, 206 Wis. 121, 238 N.W. 835,
837.
DISCONTINUANCE OF AN ESTATE. The ter-
mination or suspension of an estate-tail, in con-
sequence of the g et of the tenant in tail, in con-
veying a larger estate in the land than he was by
law entitled to do. 2 Bl.Comm. 275; 3 Bl.Comm.
171. An alienation made or suffered by tenant
in tail, or by any that is seised in autre droit,
whereby the issue in tail, or the heir or successor,
or those in reversion or remainder, are driven to
their action, and cannot enter. Co. Litt. 325a.
The cesser of a seisin under an estate, and the
acquisition of a seisin under a new and necessarily
a wrongful title. Prest. Merg. c. ii.
Discontinuare nihil aliud significat quam inter-
mittere, desuescere, interrumpere. Co. Litt. 325.
To discontinue signifies nothing else than to in-
termit, to disuse, to interrupt.
DISCONTINUANCE. Occasional; intermittent;
characterized by separate repeated acts; as, dis-
continuous easements and servitudes. See Ease-
ment.
DISCONVENABLE. L. Fr. Improper; unfit.
Kelham.
DISCOUNT. In a general sense, an allowance or
deduction made from a gross sum on any account
whatever. In a more limited and technical sense,
the taking of interest in advance. Cooper v. Na-
tional Bank of Savannah, 21 Ga.App. 356, 94 S.
E. 611, 614.
By the language of the commercial world and
the settled practice of banks, a discount by a bank
means a drawback or deduction made upon its ad-
vances or loans of money, upon negotiable paper
or other evidences of debt payable at a future
day, which are transferred to the bank. See, also,
Valley Mortg. Co. v. Patterson, 30 Ala.App. 492,
8 So.2d 213, 214.
Although the discounting of notes or bills, in its most
comprehensive sense, may mean lending money and taking
notes in payment, yet, in its more ordinary sense, the dis-
counting of notes or bills means advancing a consideration
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DISCOUNT
for a bill or note, deducting or discounting the interest
which will accrue for the time the note has to run. In re
Worth Lighting & Fixture Co., D.C.N.Y., 292 F. 769, 772.
Discounting by a bank means lending money upon a
note, and deducting the interest or premium in advance.
Meserole Securities Co. v. Cosman, 253 N.Y. 130, 170 N.E.
519, 521.
Discount, as we have seen, is the difference between the
price and the amount of the debt, the evidence of which
is transferred. That difference represents interest charged,
being at the same rate, according to which the price paid,
if invested until the maturity of the debt, will just produce
its amount. Napier v. John V. Farwell Co., 60 Colo. 319,
153 P. 694, 695.
Commission Equivalent
Where agreement provides for underwriting
shares at "discount" of certain per cent., word
"discount" is equivalent to commission. Stewart
v. G. L. Miller & Co., 161 Ga. 919, 132 S.E. 535,
538, 45 A.L.R. 559.
Discounting a note and buying it are not identical in
meaning, the latter expression being used to denote the
transaction when the seller does not indorse the note, and
is not accountable for it. Bank v. Baldwin, 23 Minn. 206,
23 Am. Rep. 683.
In Practice
A set-off or defalcation in an action. Vin. Abr.
"Discount." But see Trabue's Ex'r v. Harris, 1
Metc. (Ky.) 597.
DISCOUNT BROKER. A bill broker; one who
discounts bills of exchange and promissory notes,
and advances money on securities.
DISCOVER. To uncover that which was hidden,
concealed, or unknown from every one. Stano-
lind Oil & Gas Co. v. State, Tex.Civ.App., 114 S.
W.2d 699, 706.
To get first sight or knowledge of; to get knowl-
edge of what has existed but has not theretofore
been known to the discoverer. Shellmar Products
Co. v. Allen-Qualley Co., C.C.A.Ill., 87 F.2d 104, 108.
DISCOVERED PERIL, DOCTRINE OF. A name
for the doctrine otherwise known as that of the
"last clear chance." See that title.
DISCOVERT. Not married; not subject to the
disabilities of a coverture. It applies equally to
a maid and a widow.
DISCOVERY. In a general sense, the ascertain-
ment of that which was previously unknown; the
disclosure or coming to light of what was pre-
viously hidden; the acquisition of notice or knowl-
edge of given acts or facts; as, in regard to the
"discovery" of fraud affecting the running of the
statute of limitations, or the granting of a new
trial for newly "discovered" evidence. Parker v.
Kuhn, 21 Neb. 413, 32 N.W. 74, 59 Am.Rep. 852.
Howton v. Roberts, 49 S.W. 340, 20 Ky.Law Rep.
1331.
In International Law
As the foundation for a claim of national own-
ership or sovereignty, discovery is the finding of
a country, continent, or island previously un-
known, or previously known only to its uncivilized
inhabitants. Martin v. Waddell, 16 Pet. 409, 10
L.Ed. 997,
In Mining Law
As the basis of the right to locate a mining
claim upon the public domain, discovery means
the finding of mineralized rock in place. U. S. v.
Safe Investment Gold Mining Co., C.C.A.S.D., 258
F. 872, 877; Dalton v. Clark, 129 Cal.App. 136, 18
P.2d 752.
In Patent Law
The finding out some substance, mechanical de-
vice, improvement, or application, not previously
known. Dunbar v. Meyers, 94 U.S. 197, 24 L.Ed.
34. It is something less than invention, and may
be the result of industry, application, or be per-
haps merely fortuitous. A. 0. Smith Corporation
v. Petroleum Iron Works Co. of Ohio, C.C.A.Ohio,
73 F.2d 531, 538.
In Practice
The disclosure by the defendant of facts, titles,
documents, or other things which are in his ex-
clusive knowledge or possession, and which are
necessary to the party seeking the discovery as
a part of a cause or action pending or to be
brought in another court, or as evidence of his
rights or title in such proceeding. Tucker v. U.
S., 151 U.S. 164, 14 S.Ct. 299, 38 L.Ed. 112; Kelley
v. Boettcher, 85 F. 55, 29 C.C.A. 14.
Also used of the disclosure by a bankrupt of
his property for the benefit of creditors.
A favored equitable remedy to secure evidence
in the other party's possession. C. F. Simonin's
Sons v. American Can Co., D.C.Pa., 22 F.Supp.
784, 786.
DISCOVERY, BILL OF. In equity pleading. A.
bill for the discovery of facts resting in the knowl-
edge of the defendant, or of deeds or writings,
or other things in his custody or power; but seek-
ing no relief in consequence of the discovery,
though it may pray for a stay of proceedings at
law till the discovery is made. Story, Eq. Pl. §§
311, 312, and notes; Mitf. Eq. Pl. 53.
DISCOVERY VEIN. See Vein.
DISCREDIT. To destroy or impair the credibility
of a person; to impeach; to lessen the degree of
credit to be accorded to a witness or document,
as by impugning the veracity of the one or the
genuineness of the other; to disparage or weaken
the reliance upon 'the testimony of a witness, or
upon documentary evidence, by any means what-
ever.
DISCREETLY. Prudently; judiciously; with dis-
cernment. Parks v. City of Des Moines, 195 Iowa,
972, 191 N.W. 728, 731.
DISCREPANCY. A difference between two things
which ought to be identical, as between one writ-
ing and another; a variance, (q. v.) Also discord,
discordance, dissonance, dissidence, unconformity,
disagreement, difference. State v. Superior Court
of King County, 138 Wash. 488, 244 P. 702, 703.
DISCRETELY. Separately; disjunctively. Parks
v. City of Des Moines, 195 Iowa, 972, 191 N.W. 728,
731.
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DISCRIMINATION
Discretio est discerners per legem quid sit justum. •
10 Coke, 140. Discretion is to know through law
what is just.
Discretio est scire per legem quid sit justum. Dis-
cretion consists in knowing what is just in law.
Le Roy v. New York, 4 Johns. Ch. (N. Y.) 352,
356.
DISCRETION. Power or privilege of the court
to act unhampered by legal rule. Osborn v. Unit-
ed States Bank, 9 Wheat. 866, 6 L.Ed. 204; Mur-
ray v. Buell, 74 Wis. 14, 41 N.W. 1010, 11 L.R.A.
446.
When applied to public functionaries, discretion means a
power or right conferred upon them by law of acting
officially in certain circumstances, according to the dictates
of their own judgment and conscience, uncontrolled by the
judgment or conscience of others. This discretion un-
doubtedly is to some extent regulated by usage, or, if the
term is preferred, by fixed principles. But by this is to
be understood nothing more than that the same court can-
not, consistently with its own dignity, and with its char-
acter and duty of administering impartial justice, decide in
different ways two cases in every respect exactly alike.
The question of fact whether the two cases are alike in
every color, circumstance, and feature is of necessity to
be submitted to the judgment of some tribunal. State v.
Tindell, 112 Kan. 256, 210 P. 619, 622. Board of Permanent
Road Com'rs of Hunt County v. Johnson, Tex.Civ.App.,
231 S.W. 859, 860.
Judicial Discretion, Legal Discretion
These terms are applied to the discretionary action of a
judge or court, and mean discretion as above defined, that
is, discretion bounded by the rules and principles of law,
and not arbitrary, capricious, or unrestrained. "Judicial
discretion" is substantially synonymous with judicial pow-
er. Griffin v. State, 12 Ga.App. 615, 77 S.E. 1080, 1083.
It is not the indulgence of a judicial whim, but the ex-
ercise of judicial judgment, based on facts and guided by
law, Smith v. Hill, C.C.A., 5 F.2d 188, or the equitable
decision of what is just and proper under the circum-
stances, People v. Pfanschmidt, 262 Ill. 411, 104 N.E. 804,
816, Ann.Cas.1915A, 1171. It is simply the technical name
of the decision of certain questions of fact by the court.
Nawn v. Boston & M. R. R., 77 N.H. 299, 91 A. 181, 182.
Lord Coke defines judicial discretion to be "discernere
per legem quid sit justum," to see what would be just ac-
cording to the laws in the premises. It does not mean a
wild self-willfulness, which may prompt to any and every
act; but this judicial discretion is guided by the law, (see
what the law declares upon a certain statement of facts,
and then decide in accordance with the law,) so as to do
substantial equity and justice. Faber v. Bruner, 13 Mo.
543. It is a legal discretion to be exercised in discerning
the course prescribed by law 'and is not to give effect to
the. will of the judge, but to that of the law. McGurty v.
Delaware, L. & W. R. Co., 158 N.Y.S. 285, 286, 172 App.
Div. 46.
True, it is a matter of discretion; but then the discre-
tion is not willful or arbitrary, but legal. And, although
its exercise be not purely a matter of law, yet it "involves
a matter of law or legal inference," in the language of
the Code, and an appeal will lie. Lovinier v. Pearce, 70 N.
C. 171.
Legal discretion, is the exercise of discretion where there
are two alternative provisions of law applicable, under ei-
ther of which court could proceed. Shannon v. Hendrix-
son, Ohio App., 32 N.E.2d 431, 432.
In criminal law and the law of torts, it means
the capacity to distinguish between what is right
and wrong, lawful or unlawful, wise or foolish,
sufficiently to render one amenable and responsi-
ble for his acts. Towle v. State, 3 Fla. 214.
Wise conduct and management; cautious dis-
cernment, especially as to matters of propriety
and self-control; prudence; circumspection; wari-
ness. Arkansas Valley Town & Land Co. v. At-
chison, T. & S. F. Ry. Co., 49 Okl. 282, 151 P. 1028,
1031.
DISCRETIONARY DAMAGES. Those which are
measureable by enlightened conscience of impar-
tial jurors. Southern Ry. Co. v. Groover, 41 Ga.
App. 746, 154 S.E. 706, 707.
DISCRETIONARY POWER. One which is not
imperative or, if imperative, the time, manner,
or extent of execution of which is left to donee's
discretion; the power to do or to refrain from
doing a certain thing. City of San Antonio v. Zog-
heib, Tex.Civ.App., 70 S.W.2d 333, 334.
DISCRETIONARY TRUSTS. Such as are not
marked out on fixed lines, but allow a certain
amount of discretion in their exercise. Those
which cannot be duly administered without the
application of a certain degree of prudence and
judgment. Greenwich Trust Co. v. Tyson, 129
Conn. 211, 27 A.2d 166, 172.
DISCRIMINATION. With reference to common
carriers (especially railroads), a breach of the
carrier's duty to treat all shippers alike, and af-
ford them equal opportunities to market their
product. Cox v. Pennsylvania R. Co., 240 Pa. 27,
87 A. 581, 583. A carrier's failure to treat all alike
under substantially similar conditions. Kentucky
Traction & Terminal Co. v. Murray, 176 Ky. 593,
195 S.W. 1119, 1120.
"Discrimination" is a term well understood in the nom-
enclature of transportation over railroads. It implies to
charge shippers of freight, as compensation for carrying
the same over railroads, unequal sums of money for the
same quantity of freight for equal distances; more for
shorter than a longer distance, more in proportion of dis-
tance for a shorter than a longer distance; more for
freights called local freights than those designated other-
wise; more for the former in proportion to distance such
freights may be carried than the latter. Atchison, T. & S.
F. Ry. Co. v. State, 85 Okl. 223, 206 P. 236, 239.
In constitutional law, the effect of a statute
which confers particular privileges on a class ar-
bitrarily selected from a large number of persons,
all of whom stand in the same relation to the
privileges granted and between whom and those
not favored no reasonable distinction can be
found. Franchise Motor Freight Ass'n v. Seavey,
196 Cal. 77, 235 P. 1000, 1002.
In general, a failure to treat all equally; fa-
voritism. Employment, Mische v. Kaminski, 127
Pa.Super. 66, 193 A. 410, 416; Board of Com'rs of
Huron County v. State ex rel. Clarke, 127 Ohio
St. 341, 188 N.E. 551, 552; Selective service, Unit-
ed States ex rel. Lynn v. Downer, C.C.A.N.Y., 140
F.2d 397, 401; marriages between negroes or mu-
lattoes and white persons, Jackson v. City and
County of Denver, 109 Colo. 196, 124 P.2d 240, 241;
differential in teachers' salaries based solely on
the ground of race and color, Thomas v. Hibbitts,
D.C.Tenn., 46 F.Supp. 368, 371; taxation, Atlantic
Pipe Line Co. v. Brown County, D.C.Tex., 12 F.
Supp. 642, 647.
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DISCUSSION
DISCUSSION.
In the Civil Law
A proceeding, at the instance of a surety, by
which the creditor is obliged to exhaust the prop-
erty of the principal debtor, towards the satis-
faction of the debt, before having recourse to the
surety; and this right of the surety is termed the
"benefit of discussion."
In Scotch Law
The ranking of the proper order in which heirs
are liable to satisfy the debts of the deceased.
Bell.
DISEASE. Deviation from the healthy or nor-
mal condition of any of the functions or tissues
of the body; an alteration in the state of the body
or of some of its organs, interrupting or disturb-
ing the performance of the vital functions, and
causing or threatening pain and weakness; ill-
ness; sickness; disorder; malady; bodily in-
firmity. Order of United Commercial Travelers
of America v. Nicholson, C.C.A.N.Y., 9 F.2d 7, 14;
Merriam v. Hamilton, 64 Or. 476, 130 P. 406, 407.
In construing a policy of life insurance, it is
generally true that, before any temporary ailment
can be called a "disease," it must be such as to
indicate a vice in the constitution, or be so serious
as to have some bearing upon general health and
the continuance of life, or such as, according to
common understanding, would be called a "dis-
ease." Delaney v. Modern Ace. Club, 121 Iowa
528, 97 N.W. 91, 63 L.R.A. 603; Metropolitan Casu-
alty Ins. Co. v. Cato, 113 Miss. 303, 74 So. 118, 119.
An ulcer is a "disease" or "infection," within Work-
men's Compensation Law, § 3, subd. 7, declaring that "In-
jury," or "personal injury," as used in the act, means
only accidental injuries arising out of and in the course
of employment and such disease or infection as may nat-
urally and unavoidably result therefrom. Pinto v. Chelsea
Fibre Mills, 186 N.Y.S. 748, 750, 196 App.Div. 221; For
"Existing Disease" see that title.
DISEASE COMMON TO BOTH SEXES. Malady,
sickness, or illness that both males and females
have. National Life & Accident Ins. Co. v. Weaver,
Tex.Civ.App., 226 S.W. 754, 757.
DISENTAILING DEED. In English law. An en-
rolled assurance barring an entail, pursuant to 3
& 4 Wm. IV. c. 74.
DISFIGUREMENT. That which impairs or in-
jures the beauty, symmetry, or appearance of a
person or thing; that which renders unsightly,
misshapen, or imperfect, or deforms in some man-
ner. Vukelich v. Industrial Commission of Utah,
62 Utah, 486, 220 P. 1073, 1075; Lee v. Common-
wealth, 135 Va. 572, 115 S.E. 671, 673.
DISFRANCHISE. To deprive of the rights and
privileges of a free citizen; to deprive of charter..
ed rights and immunities; to deprive of any fran-
chise, as of the right of voting in elections, etc.
Webster.
In any election where the party system furnishes the
means by which the citizen's right of suffrage is made ef-
fective, denial of his party's right to participate in the
election accomplishes the "disfranchisement of voters" or
compels them, if they vote, to vote for representatives or
political parties other than that to which they belong, and
the deprivation of the right of selection is a deprivation of
the right of franchise. Communist Party of United States
of America v. Peek, 20 Ca1.2d 536, 127 P.2d 889, 894.
DISFRANCHISEMENT. The act of disfranchis-
ing. The act of depriving a member of a cor-
poration of his right as such, by expulsion. 1
Bouv. Inst. no. 192. In re Koch, 257 N.Y. 318, 178
N.E. 545, 546.
It differs from amotion (q. v.) which is appli-
cable to the removal of an officer from office, leav-
ing him his rights as a member. Ang. & A. Corp.
237.
In a more popular sense, the taking away of the
elective franchise (that is, the right of voting in
public elections) from any citizen or class of
citizens.
DISGAVEL. In English law. To deprive lands
of that principal quality of gavelkind tenure by
which they descend equally among all the sons
of the tenant. 2 Wood. Lect. 76; 2 Bl. Comm. 85.
DISGRACE. Ignominy; shame; dishonor. No
witness is required to disgrace himself. 13 How.
State Tr. 17, 334; Bander v. Metropolitan Life
Ins. Co., 313 Mass. 337, 47 N.E.2d 595, 600.
DISGRADING. In old English law. The de-
priving of an order or dignity.
DISGUISE, v. To change the guise or appear-
ance of, especially to conceal by unusual dress;
to hide by a counterfeit appearance; to affect
or change by liquor; to intoxicate. Darneal v.
State, 14 Okl.Cr. 540, 174 P. 290, 292, 1 A.L.R. 638.
DISGUISE, n. A counterfeit habit; a dress in-
tended to conceal the person who wears it. Web-
ster. Also slight intoxication. Darneal v. State,
14 Okl.Cr. 540, 174 P. 290, 292, 1 A.L.R. 638.
. Anything worn upon the person with the in-
tention of so altering the wearer's appearance
that he shall not be recognized by those familiar
with him, or that he shall be taken for another
person.
A person lying in ambush, or concealed behind bushes, is
not in "disguise," within the meaning of a statute declar-
ing the county liable in damages to the next of kin of any
one murdered by persons in disguise. Dale County v.
Gunter, 46 Ala. 118, 142.
DISHERISON. Disinheritance; depriving one of
an inheritance. Obsolete. See Abernethy v. Or-
ton, 42 Or. 437, 71 P. 327, 95 Am.St.Rep. 774.
DISHERITOR. One who disinherits, or puts an-
other out of his freehold. Obsolete.
DISHONESTY. Disposition to lie, cheat or de-
fraud; untrustworthiness; lack of integrity. Al-
sup v. State, 91 Tex.Cr.R. 224, 238 S.W. 667, 669.
DISHONOR. In mercantile law and usage. To
refuse or decline to accept a bill of exchange, or
to refuse or neglect to pay a bill or note at matur-
ity. Shelton v. Braithwaite, 7 Mees. & W. 436;
Brewster v. Arnold, 1 Wis. 276.
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DISMISSAL
Notice of Dishonor
A notice given by the holder to the drawer of
a bill, or to an indorser of a bill or note, that it
has been dishonored by nonacceptance on pre-
sentment for acceptance, or by nonpayment at its
maturity. 2 Daniel, Neg. Inst. § 970.
As respects the flag, to deface or defile, imput-
ing a lively sense of shaming or an equivalent
acquiescent callousness. State v. Schlueter, 127
N.J.L. 496, 23 A.2d 249, 251.
DISINCARCERATE. To set at liberty, to free
from prison.
DISINFECTED. Made free from injurious or
contagious diseases. Clampitt v. St. Louis South-
western Ry. Co. of Texas, Tex.Civ.App., 185 S.W.
342, 344.
DISINHERISON. In the civil law. The act of
depriving a forced heir of the inheritance which
the law gives him.
Disinherison is a testamentary disposition and not a mere
penalty for lack of filial respect, but such a testamentary
disposition is not self-operative and something more than
its mere appearance in a will is required to give it effect.
Successions of Lissa, 198 La. 129, 3 So.2d 534, 542.
DISINHERITANCE. The act by which the owner
of an estate deprives a person, who would other-
wise be his heir, of the right to inherit it. Cope-
land v. Johnson, 101 Okl. 228, 224 P. 986, 988.
DISINTER. To exhume, unbury, take out of the
grave. People v. Baumgartner, 135 Cal. 72, 66
P. 974.
DISINTERESTED. Not concerned, in respect to
possible gain or loss, in the result of the pending
proceedings; impartial, not biased or prejudiced.
McGilvery v. Staples, 16 A. 404, 81 Me. 101; Kraft
v. Tenningkeit, 204 Iowa, 15, 214 N.W. 562, 563.
DISINTERESTED WITNESS. One who has no
interest in the cause or matter in issue, and who
is lawfully competent to testify. Fitzhugh v.
Nirschl, 77 Or. 514, 151 P. 735, 736. In re Pale-
thorp's Estate, 249 Pa. 389, 94 A. 1060, 1065.
DISJUNCTIM. Lat. In the civil law. Separate-
ly; severally. The opposite of con junctim, ( q. v.)
Inst. 2, 20, 8.
DISJUNCTIVE ALLEGATION. A statement in
a pleading or indictment which expresses or
charges a thing alternatively, with the conjunc-
tion "or;" for instance, an averment that defend-
ant "murdered or caused to be murdered," etc.,
would be of this character. Hand v. Hand, 23 N.
J.Misc. 118, 41 A.2d 270, 271.
DISJUNCTIVE TERM. One which is placed be-
tween two contraries, by the affirming of one of
which the other is taken away; it is usually ex-
pressed by the word "or."
DISLOCATION. To put out of proper place. Gal-
lagher v. Monroe, 222 Mich. 202, 192 N.W. 609.
DISLOYAL. Not true to; unfaithful; United
States v. Krafft, C.C.A.N.J., 249 F. 919, 925, L.R.A.
1918F, 402; uncooperative, Sullivan V. Warner
Bros. Theatres, 42 Cal.App.2d 660, 109 P.2d 760,
762.
DISMES. Tenths; tithes, (q. v.). The original
form of "dime," the name of the American coin.
DISMISS. To send away; to discharge; to cause
to be removed temporarily or permanently; to
relieve from duty. To dismiss an action or suit
is to send it out of court without any further
consideration or hearing. School District No. 1
of Jefferson County v. Parker, 82 Colo. 385, 260
P. 521, 522; People ex rel. Tims v. Bingham, Sup.,
166 N.Y.S. 28, 29; Nichols v. Sunderland, 77 Cal.
App. 627, 247 P. 614, 618.
DISMISSAL. An order or judgment finally dis-
posing of an action, suit, motion, etc., by sending
it out of court, though without a trial of the is-
sues involved. Brackenridge v. State, 27 Tex.
App. 513, 11 S.W. 630, 4 L.R.A. 360. The term is
often used to indicate an adjudication on the
merits. Knbx v. Crump, 15 Ga.App. 697, 84 S.E.
169, 173; Butler v. McSweeney, 222 Mass. 5, 109
N.E. 653, 655. Although use of the term frequent-
ly signifies that it is not decision on merits.
Wight v. Wight, 272 Mass. 154, 172 N.E. 335, 336.
A release or discharge from employment. Tag-
gart v. School Dist. No. 52, Carroll County, Mo.
App., 88 S.W.2d 447, 449; Gentner v. Board of Ed-
ucation of Los Angeles City High School Dist.,
219 Cal. 135, 25 P.2d 824.
DISMISSAL AGREED. A dismissal entered in
accordance with the agreement of the parties,
amounting to an adjudication of the matters in
dispute between them or to a renunciation by the
complainant of the claims asserted in his plead-
ings. Root v. Water Supply Co., 46 Kan. 183, 26 P.
398; Lindsay v. Allen, 112 Tenn. 637, 82 S.W. 171.
Dismissal agreed made in Supreme Court of Appeals upon
a writ of error to a judgment of the Circuit Court has no
reference to the controversy between the parties, but leaves
the judgment standing and purges error, releases error,
and bars another writ of error. Fletcher v. Parker, 53 W.
Va. 422, 44 S.E. 422.
DISMISSAL COMPENSATION. The payment of
a specific sum, made by employer to employee
for permanently terminating employment rela-
tionship primarily for reasons beyond employee's
control. Gayner v. The New Orleans, D.C.Cql.,
54 F.Supp. 25, 28.
DISMISSAL WITH PREJUDICE. An adjudica-
tion on the merits, and final disposition, barring
the right to bring or maintain an action on the
same claim. or cause. Pulley v. Chicago, R. I.
& P. Ry. Co., 122 Kan. 269, 251 P. 1100, 1101. It
is res judicata as to every matter litigated. Ro-
den v. Roden, 29 Ariz. 549, 243 P. 413, 415. A judg-
ment of dismissal and a judgment of nonsuit have
the same legal effect. Suess v. Motz, 220 Mo.App.
32, 285 S.W. 775, 776.
Temporary or permanent removal from office;
termination of a servant's employment. Nichols
v. Sunderland, 77 Cal.App. 627, 247 P. 614, 618.
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DISMISSAL
DISMISSAL WITHOUT PREJUDICE. Dismissal,
as of a bill in equity, without prejudice to the
right of the complainant to sue again on the same
cause of action. The effect of the words "with-
out prejudice" is to prevent the decree of dismis-
sal from operating as .a bar to a subsequent suit.
Northrup v. Jay, 262 Mich. 463, 247 N.W. 717, 718.
DISMISSED. A judgment of "Dismissed," with-
out qualifying words indicating a right to take
further proceedings, is presumed to be dismissed
on the merits; Durant v. Essex Co., 7 Wall. 107,
19 L.Ed. 154. But a bill "dismissed" on motion of
complainant does not bar a second suit; Ex parte
Loung June, D.C.N.Y., 160 F. 251, 259.
DISMISSED FOR WANT OF EQUITY. A phrase
used to indicate a decision on the merits, as dis-
tinguished from one based upon some formal de-
fect. The dismissal may be because the aver-
ments of complainant's bill have been found un-
true in fact, or because they are insufficient to
entitle complainant to the relief sought. Rein-
man v. Little Rock, 35 S.Ct. 511, 513, 237 U.S. 171,
59 L.Ed. 900.
DISMORTGAGE. To redeem from mortgage.
DISORDER. Turbulent or riotous behavior; im-
moral or indecent conduct. The breach of the
public decorum and morality.
Usually, a slight, partial, and temporary physi-
cal ailment. Pacific Mut. Life Ins. Co. v. Mc-
Combs, 188 Ark. 52, 64 S.W.2d 333.
DISORDERLY. Contrary to the rules of good
order and behavior; violative of the public peace
or good order; turbulent, riotous, or indecent.
DISORDERLY CONDUCT. A term of loose and
indefinite meaning (except as occasionally defined
in statutes), but signifying generally any be-
havior that is contrary to law, and more particu-
larly such as tends to disturb the public peace or
decorum, scandalize the community, or shock the
public sense of morality. People v. Keeper of
State Reformatory, 176 N.Y. 465, 68 N.E. 884;
City of Mt. Sterling v. Holly, 108 Ky. 621, 57 S.W.
491.
DISORDERLY HOUSE. In criminal law. A
house the inmates of which behave so badly as to
become a nuisance to the neighborhood. It has a
wide meaning, and includes bawdy houses, com-
mon gaming houses, and places of a like char-
acter. 1 Bish. Crim.Law, § 1106. State v. Ever-
hardt, 203 N.C. 610, 166 S.E. 738, 741; gaming,
Martin v. State, 62 Ga.App. 902, 10 S.E.2d 254,
255; prostitution, State v. Berman, 120 N.J.L.
381, 199 A. 776, 777.
DISORDERLY PERSONS. Such as are danger-
ous or hurtful to the public peace and welfare by
reason of their misconduct or vicious habits, and
are therefore amenable to police regulation. The
phrase is chiefly used in statutes, and the scope
of the term depends on local regulations. See 4
Bl. Comm. 169. One who violates peace and good
order of society, State v. Harlowe, 174 Wash. 227,
24 P.2d 601; one who abandons a child, People
v. Gross, 291 N.Y.S. 597, 602, 604, 161 Misc. 514;
giving false fire alarm, Piliszek v. Burlington
County Court of Special Sessions, 129 N.J.L. 604,
30 A.2d 578; spiritualist pastor telling fortune,
People v. Plaskett, 13 N.Y.S.2d 682, 683, 171 Misc.
563; vagrant, People v. Marciano, Mag.Ct., 17
N.Y.S.2d 722, 723.
DISPARAGARE. In old English- law. To bring
together those That are unequal, (dispares con-
ferrea to connect in an indecorous and unworthy
manner; to connect in marriage those that are
unequal in blood and parentage.
DISPARAGATIO. In old English law. Dispar-
agement. Hceredes maritentur absque disparaga-
tione, heirs shall be married without disparage-
ment. Magna Charta (9 Hen. III.) c. 6.
DISPARAGATION. L. Fr. Disparagement;
the matching an heir, etc., in marriage, under
his or her degree or condition, or against the
rules of decency. Kelham.
DISPARAGE. To connect unequally; to match
unsuitably.
DISPARAGEMENT. In old English law. An
injury by union or comparison with some person
or thing of inferior rank or excellence.
Marriage without disparagement was marriage
to one of suitable rank and character. 2 Bl.Comm.
70; Co. Litt. 82b. Shutt v. Carloss, 36 N.C. 232.
Matter which is intended by its publisher to be
understood or which is reasonably understood to
cast doubt upon the existence or extent of an-
other's property in land, chattels or intangible
things, or upon their quality. Restatement, Torts,
§ 629.
Of Goods
A statement about a competitor's goods which
is untrue or misleading and is made to influence
or tends to influence the public not to buy. Ed-
win L. Wiegand Co. v. Harold E. Trent Co., C.C.A.
Pa., 122 F.2d 920, 924.
DISPARAGIUM. In old Scotch law. Inequality
in blood, honor, dignity, or otherwise. Skene de
Verb. Sign.
Disparata non debent jungi. Things unlike
ought not to be joined. Jenk. Cent. 24, Marg.
DISPARK. To dissolve a park. Cro. Car. 59.
To convert it into ordinary ground.
DISPATCH, or DESPATCH. A message, letter,
or order sent with speed on affairs of state; a
telegraphic message.
Celerity; expedition; speed. Stockman v. Bos-
ton & M. R. R., 117 Me. 35, 102 A. 560, 562.
In Maritime Law
Diligence, due activity, or proper speed in the
discharge of a cargo; the opposite of delay.
Sleeper v. Puig, 22 Fed.Cas. 321.
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DISPOSE
Customary Dispatch
Such as accords with the rules, customs, and usages of
the port where the discharge is made.
Dispatch Money
Dispatch money, which arises purely from contract, is
a premium paid charterer by vessel for days saved that
may be used in completing voyage. The Driebergen, C.C.
A.Fla., 60 F.2d 367, 371.
Quick Dispatch
Speedy discharge of cargo without allowance for the
customs or rules of the port or for delay from the crowded
state of the harbor or wharf. Mott v. Frost, D.C.S.C., 47
F. 82; Bjorkquist v. Certain Steel Rail Crop Ends, D.C.
Md., 3 F. 717; Davis v. Wallace, 7 Fed.Cas. 182.
DISPAUPER. When a person, by reason of his
poverty, is admitted to sue in formei pauperis,
and afterwards, before the suit be ended, ac-
quires any lands, or personal estate, or is guilty
of anything whereby he is liable to have this
privilege taken from him, then he loses the right
to sue in formd pauperis, and is said to be dispau-
pered. Wharton.
DISPEL. To .drive away by scattering, to clear
away, to banish, to dissipate. Karle v. Cincin-
nati St. Ry. Co., 69 Ohio App. 327, 43 N.E.2d 762,
767.
DISPENSARY. A "dispensary" is a place where
a drug is prepared or distributed. People v. Co-
hen, 94 Misc. 355, 157 N.Y.S. 591, 593.
Dispensatio est mall prohibiti provida relaxatio,
utilitate seu necessitate pensata; et est de jure
domino regi concessa, propter impossibilitatem
pmevidendi de omnibus particularibus. A dispen-
sation is the provident relaxation of a malum pro-
hibitum weighed from utility or necessity; and it
is conceded by law to the king on account of the
impossibility of foreknowledge concerning all par-
ticulars. 10 Coke, 88.
Dispensatio est vulnus, quod vulnerat jus com-
mune. A dispensation is a wound, which wounds
common law. Da y . Ir. K. B. 69.
DISPENSATION. An exemption from some
laws; a permission to do something forbidden;
an allowance to omit something commanded; the
canonistic name for a license. Sweeney v. In-
dependent Order of Foresters, 190 App.Div. 787,
181 N.Y.S. 4, 5.
A relaxation of law for the benefit or advantage of an
individual. In the United States, no power exists, except
in the legislature, to dispense with law; and then it is not
so much a dispensation as a change of the law.
DISPENSE. Etymologically, "dispense" means
to weigh out, pay out, distribute, regulate, man-
age, control, etc., but when used with "with," it
has, among other meanings, that of "doing with-
out," and "doing away with," being synonymous
with "abolish." United States v. Reynolds, D.C.
Mont., 244 F. 991.
DISPERSONARE. To scandalize or disparage.
Blount.
DISPLACE. To crowd out; to take the place of.
Ford v. Department of Water and Power of City
of Los Angeles, 4 Cal.App.2d 526, 41 P.2d 188, 189.
This term, as used in shipping articles, means
"disrate," and does not import authority of the
master to discharge a second mate, notwithstand-
ing a usage in the whaling trade never to disrate
an officer to a seaman. Potter v. Smith, 103 Mass.
68.
DISPLAY. An opening or unfolding, exhibition,
manifestation, ostentatious show, exhibition for
effect, parade. 20th Century Lites v. Goodman,
64 Cal.App.2d Supp., 938, 149 P.2d 88, 91.
As applied to printing, means a varying ar-
rangement of lines, as by the use of unequal
lengths or different styles or sizes of type faces;
also matter thus printed. Display advertising
means advertising not under specific headings in
newspapers, magazines and trade papers. Rust v.
Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80,
85.
DISPONE. In Scotch law. To grant or convey.
A technical word essential to the conveyance of
heritable property, and for which no equivalent
is accepted, however clear may be the meaning
of the party. Paters. Comp.
DISPONO. Lat. To dispose of, grant, or convey.
Disponet, he grants or alienates. Jus disponendi,
the right of disposition, i. e., of transferring the
title to property.
DISPOSABLE PORTION. That portion of a
man's property which he is free to dispose of by
will to beneficiaries other than his wife and chil-
dren. By the ancient common law, this amounted
to one-third of his estate if he was survived by
both wife and children. 2 Bl. Comm. 492; Hop-
kins v. Wright, 17 Tex. 36. In the civil law (by
the Lex Falcidia) it amounted to three-fourths.
Mackeld. Rom. Law, §§ 708, 771.
DISPOSAL. Sale, pledge, giving away, use, con-
sumption or any other disposition of a thing. C.
B. Norton Jewelry Co. v. Maddock, 115 Kan. 108,
222 P. 113, 114. To exercise control over; to di-
rect or assign for a use; to pass over into the con-
trol of some one else; to alienate, bestow, or
part with. Popp v. Munger, 131 Okl. 282, 268 P.
1100, 1102.
DISPOSE OF. To alienate or direct the owner-
ship of property, as disposition by will. Used
also of the determination of suits. Carnagio v.
State, 106 Fla. 209, 143 So. 162. Called a word
of large extent.
To exercise finally, in any manner, one's pow-
er of control over; to pass into the control of
someone else; to alienate, relinquish, part with,
or get rid of; to put out of the way; to finish
with; to bargain away. Carpenter v. Lothringer,
224 Iowa 439, 275 N.W. 98, 103; Roe v. Burt, 66
Oki. 193, 168 P. 405, 406.
Often used in restricted sense of "sale" only,
or so restricted by context. Roby v. Herr, 194
Ky. 622, 240 S.W. 49, 51; Merchants' Nat. Bank
of Mandan v. First Nat. Bank, C.C.A.N.D., 238 F.
502, 507.
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DISPOSING
DISPOSING CAPACITY OR MIND. These are
alternative or synonymous phrases in the law
of wills for "sound mind," and "testamentary , ca-
pacity" (q. v.). Lockhart v. Ferguson, 243 Mass.
226, 137 N.E. 355, 356.
DISPOSITION. In Scotch law. A deed of alien-
ation by which a right to property is conveyed.
Bell.
An attitude; a willingness. In re Schaefer's
Estate, 207 Wis. 404, 241 N.W. 382, 386.
The parting with, alienation of, or giving up
property. Long v. Commissioner of Internal Rev-
enue, C.C.A., 96 F.2d 270, 271; Ashwander v. Ten-
nessee Valley Authority, Ala., 56 S.Ct. 466, 479,
297 U.S. 288, 80 L.Ed. 688. A destruction of prop-
erty. Pioneer Cooperage Co. v. Commissioner of
Internal Revenue, C.C.A., 53 F.2d 43, 44.
DISPOSITIVE FACTS. Jural facts, or those acts
or events that create, modify or extinguish jural
relations. Kocourek, Jural Relations (2d Ed.) p.
17.
DISPOSSESS. To oust from land by legal pro-
cess; to eject, to exclude from realty. Matthews
v. Deason, Tex.Civ.App., 200 S.W. 855, 856.
DISPOSSESS PROCEEDINGS. Summary pro-
cess by a landlord to oust the tenant and regain
possession of the premises for nonpayment of
rent or other breach of the conditions of the lease.
Of local origin and colloquial use in New York.
DISPOSSESSION. Ouster; a wrong that carries
with it the amotion of possession. An act where-
by the wrongdoer gets the actual occupation of
the land or hereditament. It includes abatement,
intrusion, disseisin, discontinuance, deforcement.
3 Bl. Comm. 167.
DISPROVE. To refute; to prove to be false or
erroneous; not necessarily by mere denial, but
by affirmative evidence to the contrary. Irsch v.
Irsch, 12 N.Y.Civ.Proc.R. 182.
DISPUNISHABLE. In old English law. Not an-
swerable. Co. Litt. 27b, 53. 1 Steph. Comm. 245.
Not punishable. "This murder is dispunishable."
1 Leon. 270.
DISPUTATIO FORI. In the civil law. Discus-
sion or argument before a court. Mackeld. Rom.
Law, § 38; Dig. 1, 2, 2, 5.
DISPUTABLE PRESUMPTION. A species of evi-
dence that may be accepted and acted upon when
there is no other evidence to uphold contention
for which it stands; and when evidence is intro-
duced supporting such contention, evidence takes
place of presumption, and there is no necessity
for indulging in any presumption. Noble v. Key
System, 10 Cal.App.2d 132, 51 P.2d 887, 889.
A rule of law to be laid down by the court,
which shifts to the party against whom it oper-
ates the burden of evidence merely. City of
Montpelier v. Town of Calais, 114 Vt. 5, 39 A.2d
350, 356. See Presumptions.
DISPUTE. A conflict or controve r sy; a conflict
of claims or rights; an assertion of a right, claim,
or demand on one side, met by contrary claims or
allegations on the other. Keith v. Levi, C.C.Mo.,
2 F. 745; Ft. Pitt Gas Co. v. Borough of Sewick-
ley, 198 Pa. 201, 47 A. 957.
Matter in Dispute
The subject of litigation; the matter for which a suit
is brought and upon which issue is joined, and in relation
to which jurors are called and witnesses examined. Lee v.
Watson, 1 Wall. 339, 17 L.Ed. 557; Smith v. Adams, 130 U.
S. 167, 9 S.Ct. 566, 32 L.Ed. 985.
DISQUALIFY. To divest or deprive of qualifica-
tions; to incapacitate; to render ineligible or un-
fit; as, in speaking of the "disqualification" of a
judge by reason of his interest in the case, of a
juror by reason of his holding a fixed preconceived
opinion, or of a candidate for public office by rea-
son of non-residence, lack of statutory age, pre-
vious commission of crime, etc. Carroll v. Green,
148 Ind. 362, 47 N.E. 223; Coats v. Benton, 80
Okla. 93, 194 P. 198, 200, 19 A.L.R. 1038.
DISRATE. In maritime law. To deprive a sea-
man or petty officer of his "rating" or rank; to
reduce to a lower rate or rank.
DISRATIONARE, or DIRATIONARE. To justify;
to clear one's self of a fault; to traverse an in-
dictment; to disprove. Enc. Lond.
DISREGARD. To treat as unworthy of regard
or notice; to take no notice of; to leave out of
consideration; to ignore; to overlook; to fail to
observe. Cunningham v. Fredericks, 106 Conn.
665, 138 A. 790, 793.
DISREPAIR. The state of being in need of re-
pair or restoration after decay or injury. Wyom-
ing Coal Mining Co. v. Stanko, 22 Wyo. 110, 138
P. 182, 183.
DISREPUTE. Loss or want of reputation; ill
character; disesteem; discredit. U. S. v. Ault, D.
C.Wash., 263 F. 800, 810; U. S. v. Strong, D.C.
Wash., 263 F. 789, 796.
DISSASINA. In old Scotch law. Disseisin; dis-
possession. Skene.
DISSECTION. The act of cutting into pieces an
animal or vegetable for the purpose of ascertain-
ing the structure and use of its parts. The ana-
tomical examination of a dead body by cutting
into pieces or exscinding one or more parts or
organs. Wehle v. Accident Ass'n, 31 N.Y.S. 865, 11
Misc. 36; Rhodes v. Brandt, 21 Hun (N.Y.) 3.
Anatomy; the act of separating into constituent
parts for the purpose of critical examination.
DISSEISE. To dispossess; to deprive.
DISSEISEE. One who is wrongfully put out of
possession of his lands; one who is disseised.
DISSEISIN. Dispossession; a deprivation of pos-
session; a privation of seisin; a usurpation ; of the
right of seisin and possession, and an exercise of
such powers and privileges of ownership as to
keep out or displace him to whom these right-
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DISSOLUTION
fully belong. 3 Washb. Real Prop. 125; Sweeney
v. Dahl, 140 Me. 133, 34 A.2d 673, 675, 151 A.L.R.
356.
It is a wrongful putting out of him that is seised
of the freehold, not, as in abatement or intrusion,
a wrongful entry, where the possession was va-
cant, but an attack upon him who is in actual
possession, and turning him out. It is an ouster
from a freehold in deed, as abatement and in-
trusion are ousters in law. 3 Steph.Comm. 386.
When one man invades the possession of another, and by
force or surprise turns him out of the occupation of his
lands, this is termed a "disseisin," being a deprivation of
that actual seisin or corporal possession of the freehold
which the tenant before enjoyed. In other words, a dissei-
sin is said .to be when one enters intending to usurp the
possession, and to oust another from the freehold. To con-
stitute an entry a disseisin, there must be an ouster of
the freehold, either by taking the profits or by claiming the
inheritance. Brown.
According to the modern authorities, there seems to be
no legal difference between the words "seisin" and "pos-
session," although there is a difference between the words
"disseisin" and "dispossession ;" the former meaning an
estate gained by wrong and injury, whereas the latter
may be by right or by wrong ; the former denoting an
ouster of the disseisee, or some act equivalent to it, where-
as by the latter no such act is implied. Slater v. Rawson,
6 Metc. (Mass.) 439.
Equitable disseisin is where a person is wrong-
fully deprived of the equitable seisin of land, e. g.,
of the rents and profits. 2 Meriv. 171; 2 Jac. &
W. 166.
Disseisin by election is where a person alleges
or admits himself to be disseised when he has not
really been so.
Disseisinam satis fa,cit, qui uti non permittit pos-
sessorem, vel minus commode, licet omnino non
expellat.  Co. Litt. 331. He makes disseisin
enough who does not permit the- possessor to en-
joy, or makes his enjoyment less beneficial, al-
though he does not expel him altogether.
DISSEISITRIX. A female disseisor; a disseisor-
ess. Fleta, lib. 4, c. 12, § 4.
DISSEISITUS. One who has been disseised.
DISSEISOR. One who puts another out of the
possession of his lands wrongfully. A settled tres-
passer on the land of another. Flinn v. Blake-
man, 254 Ky. 416, 71 S.W.2d 961, 968.
DISSEISORESS. A woman who unlawfully puts
another out of his land.
DISSEMBLE. To conceal by assuming some false
appearance. Darneal v. State, 14 Okl.Cr. 540, 174
P. 290, 292, 1 A.L.R. 638.
DISSENSUS. Lat. In the civil law. The mutual
agreement of the parties to a simple contract
obligation that it shall be dissolved or annulled ;
technically, an undoing of the consensus which
created the obligation. Mackeld. Rom. Law, §
541.
DISSENT. Contrariety of opinion; refusal to
agree with something already stated or adjudged
or to an act previously performed.
The term is most commonly used in American
law to denote the explicit disagreement of one or
more judges of a court with the decision passed
by the majority upon a case before them. In such
event, the non-concurring judge is reported as
"dissenting." Mere failure of a justice to vote is
not a dissent. Charles W. Sommer & Bro. v. Al-
bert Lorsch & Co., 254 N.Y. 146, 172 N.E. 271, 272.
A dissent may or may not be accompanied by an
opinion.
Dissenting Opinion
The opinion in which a judge announces his dissent from
the conclusions held by the majority of the court, and ex-
pounds his own views.
In Ecclesiastical Law
A refusal to conform to the rites and ceremo-
nies of the established church. 2 Burn, Eccl. Law
165.
DISSENTER. One who refuses to conform to the
rites and ceremonies of the established church;
a non-conformist. 2 Burn, Eccl. Law 165.
DISSENTERS. Protestant seceders from the es-
tablished church of England. They are of many
denominations, principally Presbyterians, Inde-
pendents, Methodists, and Baptists; but, as to
church government, the Baptists are Independ-
ents.
DISSENTIENTE. (Lat. dissenting.) Used with
the name or names of one or more judges, it in-
dicates a dissenting opinion in a case. Nemine
dissentiente. No one dissenting; unanimous.
DISSIGNARE. In old law. To break open a seal.
Whishaw.
, Dissimilium dissimilis est ratio. Co. Litt. 191. Of
dissimilars the rule is dissimilar.
Dissimulatione tollitur injuria. An injury is ex-
tinguished by the forgiveness or reconcilement of
the party injured. Ersk. Inst. 4, 4, 108.
DISSOLUTE. Loosed from restraint, unashamed,
lawless, loose in morals and conduct, recklessly
abandoned to sensual pleasures, profligate, wan-
ton, lewd, debauched, thus, evidence that defend-
ants danced in nude at a smoker authorized their
conviction as dissolute persons. People v. Scott,
113 Cal.App. 778, 296 P. 601, 603.
DISSOLUTION.
In Contracts
. The dissolution of a contract is the cancellation
or abrogation of it by the parties themselves, with
the effect of annulling the binding force of the
agreement, and restoring each party to his orig-
inal rights. In this sense it is frequently used in
the phrase "dissolution of a partnership." Willis-
ton v. Camp, 9 Mont. 88, 22 P. 501.
In Practice
The act of rendering a legal proceeding null,
abrogating or revoking it; unloosing its constrain-
ing force; as when an injunction is dissolved by
the court. Jones v. Hill, 6 N.C. 131.
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DISSOLUTION
Of Corporations
The dissolution of a corporation is the termina-
tion of its existence as a body politic. This may
take place in several ways; as by act of the legis-
lature, where that is constitutional; by surrender
or forfeiture of its charter; by expiration of its
charter by lapse of time; by proceedings for wind-
ing it up under the law; by loss of all its mem-
bers or their reduction below the statutory limit.
New York Title & Mortgage Co. v. Friedman, 276
N.Y.S. 72, 153 Misc. 697; Bruun v. Katz Drug Co.,
351 Mo. 731, 173 S.W.2d 906, 909.
De Facto Dissolution
That which takes place when corporation, by reason of
insolvency or for other reason, suspends all operations and
goes into liquidation. Hidden v. Edwards, 313 Mo. 642, 285
S.W. 462, 468.
Of Marriage
The act of terminating a marriage; divorce;
but the term does not include annulment. Deihl
v. Jones, 170 Tenn. 217, 94 S.W.2d 47, 48.
DISSOLUTION OF PARLIAMENT. The crown
may dissolve parliament either in person or by
proclamation; the dissolution is usually by pro-
clamation, after a prorogation. No parliament
may last for a longer period than seven years.
Septennial Act, 1 Geo. I. c. 38. Under 6 Anne, c.
37, upon a demise of the crown, parliament be-
came ipso facto dissolved six months afterwards,
but under the Reform Act, 1867, its continuance
is now nowise affected by such demise. May, Parl.
Pr. (6th Ed.) 48. Brown.
DISSOLVE. To terminate; abrogate; cancel;
annul; disintegrate. To release or unloose the
binding force of anything. As to "dissolve a cor-
poration," to "dissolve an injunction." See Dis-
solution.
DISSOLVING BOND. A bond given to obtain the
dissolution of a legal writ or process, particularly
an attachment or an injunction, and conditioned
to indemnify the opposite party or to abide the
judgment to be given. See Sanger v. Hibbard, 2
Ind. T. 547, 53 S.W. 330.
DISSUADE. In criminal law. To advise and pro-
cure a person not to do an act.
To dissuade a witness from giving evidence
against a person indicted is an indictable offense
at common law. Hawk. P. C. b. 1, c. 21, § 15.
People v. Hamm, 250 N.Y.S. 603, 605, 140 Misc. 335.
DISTANCE. A straight line along a horizontal
plane from point to point and is measured from
the nearest point of one place to the nearest point
of another. Evans v. U. S., C.C.A.N.Y., 261 F. 902,
904.
It may however be a broken line and represent-
ed by country roads ork railroad track. State v.
Mostad, 34 N.D. 330, 158 I.W. 349, 350.
DISTILL. To subject to a process of distillation,
i. e., vaporizing the more volatile parts of a sub-
stance and then condensing the vapor so formed.
In law, the term is chiefly used in connection with
the manufacture of intoxicating liquors. Williams
v. State, 161 Ark. 383, 256 S.W. 354.
DISTILLED LIQUOR or DISTILLED SPIRITS.
A term which includes all potable alcoholic liq-
uors obtained by the process of distillation (such
as whisky, brandy, rum, and gin) but excludes
fermented and malt liquors, such as wine and
beer. Sarlls v. U. S., 14 S.Ct. 720, 152 U.S. 570, 38
L.Ed. 556; Commonwealth v. Nickerson, 236 Mass.
281, 128 N.E. 273, 283, 10 A.L.R. 1568; Maresca v.
U. S., C.C.A.N.Y., 277 F. 727, 740.
DISTILLER. One who produces distilled spirits,
or who brews or makes mash, wort, or wash, fit
for distillation or for the production of spirits, or
who, by any process of evaporization, separates
alcoholic spirit from any fermented substance,
or who, making or keeping mash, wort, or wash,
has also in his possession or use a still. U. S. v.
Ridenour, D.C.Va., 119 F. 411; Motlow v. U. S., C.
C.A.Mo., 35 F.2d 90, 91.
DISTILLERY. The strict meaning of "distillery"
is a place or building where alcoholic liquors are
distilled or manufactured; not every building
where the process of distillation is used. U. S. v.
Blaisdell, 24 Fed.Cas. 1162; Atlantic Dock Co. v.
Leavitt, 54 N.Y. 35, 13 Am.Rep. 556.
DISTILLING APPARATUS. Under National Pro-
hibition Act, tit. 2, § 25 (27 USCA § 39) "distilling
apparatus" is not limited to a completed still ful-
ly equipped and ready for operation, but may
cover a 15-gallon pot and coil of copper tubing or
worm, which, when connected by gooseneck, would
produce a completed still. Rossman v. U. S., C.
C.A.Ohio, 280 F. 950, 952.
DISTINCT. Clear to the senses or mind; easily
perceived or understood; plain; unmistakable.
Hill v. Norton, 74 W.Va. 428, 82 S.E. 363, 367, Ann.
Cas.1917D, 489.
Evidently not identical; observably or decidedly
different. Bayne v. Kansas City, Mo.App., 263 S.
W. 450, 451.
Distinguished by nature or station; not the
same; different in the place or the like; separate;
individual; that which is capable of being distin-
guished; actually divided or apart from other
things. Gavin v. Webb, Tex.Civ.App., 99 S.W.2d
372, 379.
DISTINCTE ET APERTE. In old English prac-
tice. Distinctly and openly. Formal words in
writs of error, referring to the return required to
be made to them. Reg. Orig. 17.
DISTINCTIVELY. Characteristically, or peculiar-
ly, but not necessarily exclusively. Western Un-
ion Telegraph Co. v. Green, 153 Tenn. 522, 284 S.
W. 898, 899, 48 A.L.R. 313.
Distinguenda sunt tempora. The time is to be con-
sidered. 1 Cdke, 16a; Bloss v. Tobey, 2 Pick.
(Mass.) 327; Owens v. Missionary Society, 14 N.Y.
380, 393, 67 Am.Dec. 160.
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DISTRESS
Distinguenda sunt tempora; aliud est facere, aliud
perficere. Times must be distinguished; it is one
thing to do, another to perfect. 3 Leon. 243;
Branch. Princ.
Distinguenda sunt tempora; distingue tempora
et concordabis leges. Times are to be distinguish-
ed; distinguish times, and you will harmonize
laws. 1 Coke, 24. A maxim applied to the con-
struction of statutes.
DISTINGUISH. To point out an essential dif-
ference; to prove a case cited as applicable, inap-
plicable.
DISTINGUISHING MARK. Any deliberate mark-
ing of ballot by voter that is not made in attempt
to indicate his choice of candidates and which is
also effective as mark by which his ballot may be
distinguished. Hanson v. Emanuel, 210 Minn. 271,
297 N.W. 749, 752, 753, 754.
DISTORT. To twist out of natural or regular
shape, to twist aside physically, to force or put out
of true posture, to twist, wrest, or deform. Grip
Nut Co. v. MacLean-Fogg Lock Nut Co., D.C.I11.,
34 F.2d 41, 42.
DISTRACTED PERSON. A term used in the stat-
utes of Illinois and New Hampshire to express a
state of insanity. Snyder v. Snyder, 142 Ill. 60, 31
N.E. 303.
DISTRACTIO. Lat. In the civil law. A separa-
tion or division into parts; also an alienation or
sale. Sometimes applied to the act of a guardian
in appropriating the property of his ward.
DISTRACTIO BONORUM. The sale at retail of
the property of an insolvent estate, under the
management of a curator appointed in the interest
of the creditors, and for the purpose of realizing
as much as possible for the satisfaction of their
claim. Mackeld. Rom. Law, § 524.
DISTRACTIO PIGNORIS. The sale of a thing
pledged or hypothecated, by the creditor or
pledgee, to obtain satisfaction of his claim on the
debtor's failure to pay or redeem. Mackeld. Rom.
Law, § 348.
DISTRACTION RULE. If plaintiff's attention is
diverted from known danger by a sufficient cause,
under this rule the question of contributory negli-
gence is for jury. Deane v. Johnston, Fla., 104
So.2d 3, 9.
DISTRAHERE. To sell; to draw apart; to dis-
solve a contract; to divorce. Calvin.
DISTRAIN. To take as a pledge property of an-
other, and keep it until he performs his obligation
or until the property is replevied by the sheriff.
It was used to secure an appearance in court, pay-
ment of rent, performance of services, etc. 3 Bl.
Comm. 231; Also, any detention of personal prop-
erty, whether lawful or unlawful, for any purpose.
Wolfe v. Montgomery, 41 S.D. 267, 170 N.W. 158.
Distress is now generally used.
Black's Law Dictionary Revised 4th Ed.-36
DISTRAINER, or DISTRAINOR. He who seizes
a distress.
DISTRAINT. Seizure; the act of distraining or
making a distress. Regional Agr. Credit Corp. v.
Griggs County, 73 N.D. 1, 10 N.W.2d 861, 866.
DISTRESS. The taking a personal chattel out of
the possession of a wrong-doer into the custody
of the party injured, to procure a satisfaction for
a wrong committed; as for non-payment of rent,
or injury done by cattle. 3 Bl.Comm. 6, 7; Co.
Litt. 47. The taking of beasts or other personal
property by way of pledge, to enforce the per-
formance of something due from the party dis-
trained upon. 3 Bl.Comm. 231. Hall v. Marshall,
145 Or. 221, 27 P.2d 193. The taking of a defend-
ant's goods, in order to compel an appearance in
court. 3 Bl.Comm. 280; 3 Steph.Comm. 361, 363.
The seizure of personal property to enforce pay-
ment of taxes, to be followed by its public sale if
the taxes are not voluntarily paid. Marshall v.
Wadsworth, 64 N.H. 386, 10 A. 685; also the thing
taken by distraining, that which is seized to pro-
cure satisfaction. And in old Scotch law, a pledge
taken by the sheriff from those attending fairs or
markets, to secure their good behavior, and re-
turnable to them at the close of the fair or market
if they had been guilty of no wrong.
Distress infinite. One that has no bounds with
regard to its quantity, and may be repeated from
time to time, until the stubbornness of the party
is conquered. Such are distresses for fealty or
suit of court, and for compelling jurors to attend.
3 Bl.Comm. 231.
A power of attorney by which landlord dele-
gates exercise of his right to his duly authorized
agent. In re Koizim, D.C.N.J., 52 F.Supp. 357, 358.
Distress warrant. A writ authorizing an officer
to make a distraint; particularly, a writ authoriz-
ing the levy of a distress on the chattels of a ten-
ant for non-payment of rent. Commercial Credit
Co. of Baltimore v. Vine's, 98 N.J.Law, 376, 120 A.
417, 418.
Grand distress, writ of. A writ formerly issued
in the real action of quare impedit, when no ap-
pearance had been entered after the attachment;
it commanded the sheriff to distrain the defend-
ant's lands and chattels in order to compel ap-
pearance. It is no longer used, 23 & 24 Viet. c.
126, § 26, having abolished the action of quare
impedit, and substituted for it the procedure in an
ordinary action. Wharton.
Second distress. A supplementary distress for
rent in arrear, allowed by law in some cases,
where the goods seized under the first distress are
not of sufficient value to satisfy the claim.
DISTRESS AND DANGER. The "distress" and
"danger" to which a ship needs to be exposed to
entitle its rescuer to salvage need not be actual
or immediate, or the danger imminent and ab-
solute. It is sufficient if at the time the assistance
is rendered, the ship has encountered any damage
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DISTRIBUTE
or misfortune which might possibly expose her to
destruction if the services were not rendered, or
if a vessel is in a situation of actual apprehension
though not of actual danger. The Urko Mendi,
D.C., 216 F. 427, 429.
DISTRIBUTE. To deal or divide out in propor-
tion or in shares. Buchan v. Buchan, 177 N.Y.S.
176, 177, 108 Misc. 31; Foreman v. United States,
C.C.A., 255 F. 621, 623.
DISTRIBUTEE. An heir; a person entitled to
share in the distribution of an estate. This term
is admissible to denote one of the persons who
are entitled, under the statute of distributions, to
the personal estate of one who is dead intestate.
Allen v. Foth, 210 Ky. 343, 275 S.W. 804, 805.
DISTRIBUTION. In probate practice. The appor-
tionment and division, under authority of a court,
of the remainder of the estate of an intestate,
after payment of the debts and charges, among
those who are legally entitled to share in the
same. Rogers v. Gillett, 56 Iowa, 266, 9 N.W. 204.
Statute of Distributions
A law prescribing the manner of the distribution of the
estate of an intestate among his heirs or relatives. Such
statutes exist in all the states.
In general. The giving out or division among
a number, sharing or parceling out, allotting, dis-
pensing, apportioning. People v. Dime Sa y . Bank,
350 Ill. 503, 183 N.E. 604, 608.
DISTRIBUTIVE. That which exercises or accom-
plishes distribution; apportions, divides, and as-
signs in separate items or shares.
DISTRIBUTIVE FINDING OF THE ISSUE. The
jury are bound to give their verdict for that par-
ty who, upon the evidence, appears to them to
have succeeded in establishing his side of the is-
sue. But there are cases in which an issue may
be found distributively, i. e., in part for plaintiff,
and in part for defendant. Thus, in an action for
goods sold and work done, if the defendant plead-
ed that he never was indebted, on which issue was
joined, a verdict might be found for the plain-
tiff as to the goods, and for the defendant as to
the work. Steph. Pl. (7th Ed.) 77d.
DISTRIBUTIVE JUSTICE. See Justice.
DISTRIBUTIVE SHARE. The share or portion
which a given heir receives on the legal distribu-
tion of an intestate estate; Van Buren v. Plain-
field Trust Co., 130 N.J.Eq. 244, 22 A.2d 189, 191,
or from a dissolved partnership. Helvering v.
Enright's Estate, 61 S.Ct. 777, 781, 312 U.S. 636,
85 L.Ed. 1093. Sometimes, by an extension of
meaning, the share or portion assigned to a given
person on the distribution of any estate or fund,
as, under an assignment for creditors or under
insolvency proceedings.
DISTRICT. One of the portions into which an
entire state or country, county, municipality or
other political subdivision or geographical terri-
tory is divided, for judicial, political, or adminis-
trative purposes. Briggs v. Stevens, 119 Or. 138,
248 P. 169; State ex rel. Schur v. Payne, 57 Nev.
286, 63 P.2d 921, 925.
The United States are divided into judicial dis-
tricts, in each of which is established a district
court. They are also divided into election dis-
tricts, collection districts, etc.
The circuit or territory within which a person
may be compelled to appear. Cowell. Circuit of
authority; province. Enc. Lond.
District attorney. The prosecuting officer of the
United States government in each of the federal
judicial districts. Also, under the state govern-
ments, the prosecuting officer who represents the
state in each of its judicial districts. In some
states, where the territory is divided, for judicial
purposes, into sections called by some other name
than "districts," the same officer is denominated
"county attorney" or "state's attorney." Hill Coun-
ty v. Sheppard, 142 Tex. 358, 178 S.W.2d 261, 263;
State v. Henry, 196 La. 217, 198 So. 910, 914.
District clerk. The clerk of a district court of
either a state or the United States.
District courts. Courts of the United States,
each having territorial jurisdiction over a district,
which may include % whole state or only part of
it. Each of these courts is presided over by one
judge, who must reside within the district. These
courts have original jurisdiction over all admiral-
ty and maritime causes and all proceedings in
bankruptcy, and over all penal and criminal mat-
ters cognizable under the laws of the United
States, exclusive jurisdiction over which is not
vested either in the supreme or circuit courts.
Also inferior courts in Colorado, Idaho, Iowa, Kan-
sas, Louisiana, Minnnesota, Montana, Nebraska,
Nevada, New Jersey, New Mexico, North Dakota,
Ohio, Oklahoma, Texas, Utah, and Wyoming, are
also called "district courts." Their jurisdiction is
for the most part similar to that of county courts
(q. v.).
District judge. The judge of a United States
district court; also, in some states, the judge of
a district court of the state.
District parishes. Ecclesiastical divisions of par-
ishes in England, for all purposes of worship, and
for the celebration of marriages, christenings,
churchings, and burials, formed at the instance of
the queen's commissioners for building new
churches. See 3 Steph.Comm. 744.
District registry. By the English judicature
act, 1873, § 60, it is provided that to facilitate pro-
ceedings in country districts the crown may, from
time to time, by order in council, create district
registries, and appoint district registrars for the
purpose of issuing writs of summons, and for
other purposes. Documents sealed in any such
district registry shall be received in evidence
without further proof, (section 61;) and the dis-
trict registrars may administer oaths or do other
things as provided by rules or a special order of
the court, (section 62.) Power, however, is given
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DISTURBANCE
to a judge to remove proceedings from a district
registry to the office of the high court. Section
65. By order in council of 12th of August, 1875,
a number of district registries have been estab-
lished in the places mentioned in that order; and
the prothonotaries in Liverpool, Manchester, and
Preston, the district registrar of the court of ad-
miralty at Liverpool, and the county court regis-
trars in the other places named, have been ap-
pointed district registrars. Wharton.
As to "Fire," "Judicial," "Land," "Levee," "Min-
eral," "Mining," "Road," "School," and "Taxing,"
districts, see those titles.
DISTRICT MESSENGER SERVICE. The service
is not that of a common carrier, but the furnish-
ing of messengers to be used by the employer in
any way in which they could be properly em-
ployed, in the course of which the messenger be-
comes for the time the servant of the employer
and the company is not liable for his dishonesty
in the ordinary course of his employment unless
there was failure to use proper care in his selec-
tion; Haskell v. Messenger Co., 190 Mass. 189, 76
N.E. 215, 2 L.R.A.,N.S., 1091, 112 Am.St.Rep. 324,
5 Ann.Cas. 796.
DISTRICT OF COLUMBIA. A territory situated
on the Potomac river, and being the seat of gov-
ernment of the United States. It was originally
ten miles square, and was composed of portions
of Maryland and Virginia ceded by those states to
the United States; but in 1846 the tract coming
from Virginia was retroceded. Legally it is neith-
er a state nor a territory, but is made subject, by
the constitution, to the exclusive jurisdiction of
congress.
DISTRICTIO. Lat. A distress; a distraint.
Cowell.
DISTRINGAS. In English practice. A writ di-
rected to the sheriff of the county in which a de-
fendant resides, or has any goods or chattels, com-
manding him to distrain upon the goods and chat-
tels of the defendant for forty shillings, in order
to compel his appearance. 3 Steph.Comm. 567.
This writ issues in cases where it is found im-
practicable to get at the defendant personally,
so as to serve a summons upon him. Id.
A distringas is also used in equity, as the first
process to compel the appearance of a corporation
aggregate. St. 11 Geo. IV. and 1 Wm. IV. c. 36.
A form of execution in the actions of detinue
and assise of nuisance. Brooke, Abr. pl. 26; Bar-
net v. Ihrie, 1 Rawle (Pa.) 44.
DISTRINGAS JURATORES. A writ commanding
the sheriff to have the bodies of the jurors, or to
distrain them by their lands and goods, that they
may appear upon the day appointed. 3 Bl.Comm.
354. It issues at the same time with the venire,
though in theory afterwards, founded on the sup-
posed neglect of the juror to attend. 3 Steph.
Comm. 590.
DISTRINGAS NUPER VICE COMITEM. A writ
to distrain the goods of one who lately filled the
office of sheriff, to compel him to do some act
which he ought to have done before leaving the
office; as to bring in the body of a defendant, or
to sell goods attached under a ft. fa.
DISTRINGAS VICE COMITEM. A writ of dis-
tringas, directed to the coroner, may be issued
against a sheriff if he neglects to execute a writ
of venditioni exponas. Arch. Pr. 584.
DISTRINGERE. In feudal and* old English law.
To distrain; to coerce or compel. Spelman; Cal-
vin.
DISTURB. To throw into disorder; to move from
a state of rest or regular order; to interrupt a
settled state of, to throw out of course or order.
Stinchcomb v. Oklahoma City, 81 Old. 250, 198 P.
508, 510.
DISTURBANCE. Any act causing annoyance,
disquiet, agitation, or derangement to another, or
interrupting his peace, or interfering with him in
the pursuit of a lawful and appropriate occupa-
tion or contrary to the usages of a sort of meeting
and class of persons assembled that interferes
with its due progress or irritates the assembly in
whole or in part. State v. Mancini, 91 Vt. 507, 101
A. 581, 583.
A wrong done to an incorporeal hereditament
by hindering or disquieting the owner in the en-
joyment of it. Finch, 187; 3 Bl. Comm.
DISTURBANCE OF COMMON. The doing any
act by which the right of another to his common
is incommoded or diminished; as where one who
has no right of common puts his cattle into the
land, or where one who has a right of common
puts in cattle which are not commonable, or sur-
charges the common; or where the owner of the
land, or other person, incloses or otherwise ob-
structs it. 3 Bl. Comm. 237-241; 3 Steph. Comm.
511, 512.
DISTURBANCE OF FRANCHISE. The disturb-
ing or incommoding a man in the lawful exercise
of his franchise, whereby the profits arising from
it are diminished. 3 Bl. Comm. 236; 3 Steph.
Comm. 510; 2 Crabb, Real Prop. § 2472a.
DISTURBANCE OF PATRONAGE. The hin-
drance or obstruction of a patron from presenting
his clerk to a benefice. 3 Bl. Comm. 242; 3 Steph.
Comm. 514.
DISTURBANCE OF PUBLIC OR RELIGIOUS
WORSHIP. Any acts or conduct which interfere
with the peace and good order of an assembly of
persons lawfully met together for religious exer-
cises. Minter v. State, 104 Ga. 743, 30 S.E. 989,
991; Stafford v. State, 154 Ala. 71, 45 So. 673, 674.
DISTURBANCE OF PEACE. Interruption of the
peace, quiet, and good order of a neighborhood or
community, particularly by unnecessary and dis-
tracting noises. Platt v. Greenwood, 69 P.2d 1032,
1034, 50 Ariz. 158; Levert v. Katz & Besthoff, 164
La. 1094, 115 So. 281, 283.
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DISTURBANCE
DISTURBANCE OF TENURE. In the law of
tenure, disturbance is where a stranger, by men-
aces, force, persuasion, or otherwise, causes a
tenant to leave his tenancy; this disturbance of
tenure is an injury to the lord for which an action
will lie. 3 Steph. Comm. 414.
DISTURBANCE OF WAYS. This happens where
a person who has a right of way over another's
ground by grant or prescription is obstructed by
inclosures or other obstacles, or by plowing
across it , by which means he cannot enjoy his
right of way, or at least in so commodious a man-
ner as he might have done. 3 Bl. Comm. 241.
DISTURBER. If a bishop refuse or neglect to
examine or admit a patron's clerk, without reason
assigned or notice given, he is styled a "disturb-
er" by the law, and shall not have any title to
present by lapse; for no man shall take advan-
tage of his own wrong. 2 Bl. Comm. 278.
DITCH. The words "ditch" and "drain" have no
technical or exact meaning. They both may mean
a hollow space in the ground, natural or artificial,
where water is collected or passes off; also, en-
tire irrigation project. Dickey v. Bullock, 28 Wyo.
265, 202 P. 1104, 1105.
DITCHING, DIKING, or TILING. Every kind of
work necessary to convert parts of arid lands,
particularly sagebrush lands, into farms and or-
chards,—the word "diking" as applied to arid re-
gions implying a leveling of the land, and the
term "clearing land" as applied to arid regions
covered with sagebrush meaning not only the
removal or the destruction of the brush but
the plowing or breaking up of the roots as well.
Craig v. Crystal Realty Co., 89 Or. 25, 173 P. 3227
324.
DITES OUSTER. L. Fr. Say over. The form
of awarding a respondeas ouster, in the Year
Books, M. 6 Edw. III. 49.
DITTAY. In Scotch law. A technical term in civ-
il law, signifying the matter of charge or ground
of indictment against a person accused of crime.
Taking up dittay is obtaining informations and
presentments of crime in order to trial. Skene,
de Verb. Sign.; Bell.
DIVERGE. To extend from a common point in
different directions. Daylight Inv. Co. v. St. Louis
Merchants' Bridge Terminal Ry. Co., Mo.Sup.,
176 S.W. 7, 8.
DIVERS. Various, several, sundry; a collective
term grouping a number of unspecified persons,
objects, or acts. Harris v. Zanone, 93 Cal. 59, 28
P. 845; Hilton Bridge Const. Co. v. Foster, 57 N.Y.
S. 140, 141, 26 Misc. 338.
DIVERSION. A turning aside or altering the
natural course of a thing. The term is chiefly
applied to the unauthorized changing the course
of a water course to the prejudice of a lower pro-
prietor, Archer v. City of Los Angeles, 19 Ca1.2d
19, 119 P.2d 1, 5; Syret v. Tropic & East Fork Irr.
Co., 97 Utah 56, 89 P.2d 474, 475; or to unauthor-
ized or illegal use of corporate funds; Farracy v.
Security Nat. Bank of Dallas, Tex., 4 S.W.2d 331,
3354 Hornstein v. Paramount Pictures, 37 N.Y.S.
2d 404, 407; of estate or trust funds; Bray Bros. v.
Marine Trust Co. of Buffalo, 35 N.Y.S.2d 356; or
of alcohol. U. S. v. Hartford Ace. & Indem. Co.,
D.C.Md., 15 F.Supp. 791, 801.
DIVERSITE DES COURTS. A treatise on courts
and their jurisdiction, written in French in the
reign of Edward III. as is supposed, and by some
attributed to Fitzherbert. It was first printed in
1525, and again in 1534. Crabb, Eng. Law, 330,
483.
DIVERSITY. In criminal pleading. A plea by
the prisoner in bar of execution, alleging that he
is not the same who was attainted, upon which a
jury is immediately impaneled to try the collat-
eral issue thus raised, viz., the identity of the per-
son, and not whether he is guilty or innocent, for
that has been already decided. 4 Bl. Comm. 396.
DIVERSITY OF CITIZENSHIP. A phrase used
with reference to the jurisdiction of the federal
courts, which, under U.S.Const. art. 3, § 2, extends
to cases between citizens of different states, desig-
nating the condition existing when the party on
one side of a lawsuit is a citizen of one state, and
the party on the other side is a citizen of another
state. When this is the basis of jurisdiction, all
the persons on one side of the controversy must
be citizens of different states from all the persons
on the other side. Albert Pick & Co. v. Cass-
Putnam Hotel Co., D.C.Mich., 41 F.2d 74; Soptich
v. St. Joseph Nat. Croation Beneficiary Ass'n, D.
C.Kan., 34 F.2d 566.
DIVERSO INTUITU. Lat. With a different view,
purpose, or design; in a different view or point of
view; by a different course or process. 1 W. Bl.
89; 4 Kent Comm. 211, note.
DIVERSORIUM. In old English law. A lodging
or inn. Townsh. Pl. 38.
DIVERT. To turn aside; to turn out of the way;
to alter the course of things. Usually applied
to water-courses. Ang. Water-Courses, § 97 et
seq. Sometimes to roads. 8 East, 394.
DIVES. In the practice of the English chancery
division, "dives costs" are costs on the ordinary
scale, as opposed to the costs formerly allowed
to a successful pauper suing or defending in for-
ma pauperis, which consisted only of his costs
out of pocket. Daniell, Ch. Pr. 43.
DIVEST. Equivalent to devest, (q. v.).
DIVESTITIVE FACT. Any act or event that ex-
tinguishes or modifies a jural relation. Kocourek,
Jural Relations (2d ed.) 17.
DIVIDE. To cut into parts, disunite, separate,
keep apart. The term is synonymous with dis-
tribute. Watters v. First Nat. Bank, 233 Ala. 2275
171 So. 280, 288.
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DIVINE
Divide et simpers, cum radix et vertex imperil in
obedientium consensu rata sunt. 4 Inst. 35. Di-
vide and govern, since the foundation and crown
of empire are established in the consent of the
obedient.
DIVIDEND. A fund to be divided. The share al-
lotted to each of several persons entitled to share
in a division of profits or property. Thus, divi-
dend may denote a fund set apart by a corpora-
tion out of its profits, to be apportioned among the
shareholders, or the proportional amount falling
to each. Hadley v. Commissioner of Internal
Revenue, 36 F.2d 543, 544, 59 App.D.C. 139; Pen-
ington v. Commonwealth Hotel Const. Corp., 17
Del.Ch. 394, 155 A. 514, 517, 75 A.L.R. 1136; Lewis
v. O'Malley, D.C.Neb., 49 F.Supp. 173, 179. In
bankruptcy or insolvency practice, a dividend is a
proportional payment to the creditors out of the
insolvent estate. United States Fidelity & Guar-
antee Co. v. Sweeney, C.C.A.Mo., 80 F.2d 235, 241.
So-called dividend paid by life insurer is not
in fact a ."dividend" but is the excess payment of
premiums over actual cost. Scholem v. Pruden-
tial Ins. Co. of America, 15 N.Y.S.2d 947, 948, 172
Misc. 664.
"Dividends," common or preferred, are what shareholder
earns from property without liability in case dividends are
not paid. Commonwealth v. Philadelphia Rapid Transit
Co., 287 Pa. 190, 134 A. 455, 458.
Cumulative Dividend
A dividend, usually preferred, which if not
earned or paid, pursuant to agreement must be
paid at some subsequent date. Lockwood v. Gen-
eral Abrasive Co., 205 N.Y.S. 511, 513, 210 App.Div.
141.
Dividend Addition
Something added to the policy in the form of
paid-up insurance, and does not mean unappor-
tioned assets or surplus. State Life Ins. Co. of
Indianapolis v. McNeese, 106 Ind.App. 378, 19
N.E.2d 854, 857. The term does not refer to divi-
dends added directly to the loan value. Ander-
son v. Liberty Life Ins. Co. of Topeka, 149 Kan.
447, 87 P.2d 499, 502.
Ex Dividend
A phrase used by stock brokers, meaning that
a sale of corporate stock does not carry with it
the seller's right to receive his proportionate
share of a dividend already declared and shortly
payable.
Extraordinary Dividends
See Extraordinary Dividends.
Liquidation Dividend
See Liquidation Dividend.
Preferred Dividend
One paid on the preferred stock of a corpora-
tion; a dividend paid to one class of sharehold-
ers in priority to that paid to another. Jefferson
Banking Co. v. Trustees of Martin Institute, 146
Ga. 383, 91 S.E. 463, 468.
Scrip Dividend
One paid in scrip, or in certificates of the own-
ership of a corresponding amount of capital stock
of the cotnpany thereafter to be issued. Bailey
v. Railroad Co., 22 Wall. 604, 22 L.Ed. 840.
Stock Dividend
One paid in stock, that is, not in money, but
in a proportional number of shares of the cap-
ital stock of the company, which is ordinarily in-
creased for this purpose to a corresponding ex-
tent. Thomas v. Gregg, 78 Md. 545, 28 A. 565, 44
Am.St.Rep. 310. A stock dividend is not in the
ordinary sense a dividend, which is a cash distri-
bution to stockholders .of profits on their invest-
ments, but rather it is an increase in the number
of shares declared out of profits, the increased
number representing exactly the same property
as was represented by the smaller number of
shares. Booth v. Gross, Kelley & Co., 30 N.M.
465, 238 P. 829, 831, 41 A.L.R. 868. It is_ really
nothing more than a process in corporation book-
keeping. Hayes v. St. Louis Union Trust Co.,
Mo.Sup., 298 S.W. 91, 98.
In Old English Law
The term denotes one part of an indenture,
(q. v.).
DIVIDENDA. In old records. An indenture; one
counterpart of an indenture.
DIVINARE. Lat. To divine; to conjecture or
guess; to foretell. Divinatio, a conjecturing or
guessing.
Divinatio, non interpretatio est, quw omnino re-
cedit a litera. That is guessing, not interpretation,
which altogether departs from the letter. Bac.
Max. 18, (in reg. 3,) citing Yearb. 3 Hen. VI. 20.
pIVINE LAWS. Those ascribed to God. Borden
v. State, 11 Ark. 527, 44 Am.Dec. 217.
DIVINE RIGHT OF KINGS. The right of a king
to rule as posited by the patriarchal theory of
government, especially under the doctrine that no
misconduct and no dispossession can forfeit the
right of a monarch or his heirs to the throne, and
to the obedience of the people. Webster, Dict.
This theory "was in its origin directed, not against
popular liberty, but against papal and ecclesiasti-
cal claims to supremacy in temporal as well as
spiritual affairs." Figgis, "The Theory of the
Divine Right of Kings."
DIVINE SERVICE. Divine service was the name
of a feudal tenure, by which the tenants were
obliged to do some special divine services in cer-
tain; as to sing so many masses, to distribute
such a sum in alms, and the like. (2 Bl. Comm.
102; 1 Steph. Comm. 227.) It differed from tenure
in frankalmoign, in this: that, in case of the
tenure by divine service, the lord of whom the
lands were holden might distrain for its nonper-
formance, whereas, in case of frankalmoign, the
lord has no remedy by distraint for neglect of the
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DIVINITY
service, but merely a right of complaint to the
visitor to correct it. Mozley & Whitley.
DIVINITY STUDENT. A student in a seminary
in preparation for ministry, priesthood or rab-
binate. United States ex rel. Rubin v. Magruder,
D.C.R.I., 55 F.Supp. 947, 955.
DIVISA. In old English law. A device, award, or
decree; also a devise; also bounds or limits of
division of a parish or farm, etc. Cowell. Also
a court held on the boundary, in order to settle
disputes of the tenants.
Divisibilis est semper divisibilis. A thing divis-
ible may be forever divided.
DIVISIBLE. That which is susceptible of being
divided.
DIVISIBLE CONTRACT. One which is in its na-
ture and purposes susceptible of division and ap-
portionment; having two or more parts in respect
to matters and things contemplated and embraced
by it, not necessarily dependent on each other nor
intended by the parties so to be. Horseman v.
Horseman, 43 Or. 83, 72 P. 698; Stavisky v. Gen-
eral Footwear Co., City Ct.N.Y., 185 N.Y.S. 760,
761.
DIVISIBLE OBLIGATION. See Obligation.
DIVISIBLE OFFENSE. One that includes one
or more offenses of lower grade, e. g., murder
includes assault, battery, assault with intent to
kill, and other offenses. Williams v. State, 20
Ala.App. 604, 104 So. 280, 281.
DIVISIM. In old English law. Severally; sep-
arately. Bract. fol. 47.
DIVISION. In English law. One of the smaller
subdivisions of a county. Used in Lincolnshire
as synonymous with "riding" in Yorkshire.
The separation of members of a legislative
body to take a vote. An operating section of a
railroad. Burton v. Oregon-Washington R. &
Na y . Co., 148 Or. 648, 38 P.2d 72. A separation
of an administrative body or court for the con-
ducting of the business thereof. Foss v. Com-
missioner of Internal Revenue, C.C.A. 1, 75 F.2d
326, 329.
DIVISION OF OPINION. In the practice of ap-
pellate courts, this term denotes such a disagree-
ment among the judges that there is not a major-
ity in favor of any one view, and hence no de-
cision can be rendered on the case. But it some-
times also denotes a division into two classes, one
of which may comprise a majority of the judges;
as when we speak of a decision having proceeded
from a "divided court."
DIVISIONAL COURTS. Courts in England, con-
sisting of two or (in special cases) more judges
of the high court of justice, sitting to transact
certain kinds of business which cannot be disposed
of by one judge.
DIVISUM IMPERIUM. Lat. A divided jurisdic-
tion. Applied, e. g., to the jurisdiction of courts
of common law and equity over the same subject.
1 Kent, Comm. 366; 4 Steph. Comm. 9.
DIVORCE. The legal separation of man and wife,
effected, for cause, by the judgment, of a court,
and either totally dissolving the marriage rela-
tion, or suspending its effects so far as concerns
the cohabitation of the parties. Atherton v. Ath-
erton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794.
Sometimes it includes "annulment." Millar v.
Millar, 175 Cal. 797, 167 P. 394, 398, L.R.A. 1918B,
415, Ann.Cas.1918E, 184.
The dissolution Is termed "divorce from the bond of
matrimony," or, in the Latin form of the expression, "a
vinculo matrimonii;" the suspension, "divorce from bed
and board," "a mensa et thoro." The former divorce puts
an end to the marriage ; the latter leaves it in full force.
2 Bish.Mar. & Div. § 225.
The term "divorce" Is now applied, in England, both to
decrees of nullity and decrees of dissolution of marriage,
while in America it is ordinarily used only in cases of
divorce a mensa or a vinculo, a decree of nullity of mar-
riage being granted for the causes for which a divorce a
vinculo was formerly obtainable in England.
Divorce a mensa et thoro. A divorce from
table and bed, or from bed and board. A partial
or qualified divorce, by which the parties are
separated and forbidden to live or cohabit to-
gether, without affecting the marriage itself. 1
Bl. Comm. 440; 3 Bl. Comm. 94; 2 Steph. Comm.
311; 2 Bish. Mar. & Div. § 225; Fisher v. Harris-
on, 165 Va. 323, 182 S.E. 543, 544, 104 A.L.R. 102.
Divorce a vinculo matrimonii. A divorce from
the bond of marriage. A total divorce of husband
and wife, dissolving the marriage tie, and releas-
ing the parties wholly from their matrimonial
obligations. 1 Bl. Comm. 440; 2 Steph. Comm.
310, 311; 2 Bish. Mar. & Div. § 225; De Roche v.
De Roche, 12 N.D. 17, 94 N.W. 770.
Divorce suit. A "divorce suit" • is a civil pro-
ceeding founded on a matrimonial wrong, where-
in the married parties are plaintiff and defend-
ant, and the government, or public, occupies,
without being mentioned in the pleadings, the
position of a third party, resulting in a triangle
and otherwise sui generis action of tort. Galle-
more v. Gallemore, 94 Fla. 516, 114 So. 371, 372.
Foreign divorce. A divorce obtained out of the
state or country where the marriage was solemn-
ized. 2 Kent, Comm. 106, et seq.
Limited divorce. A divorce from bed and board;
or a judicial separation of husband and wife not
dissolving the marriage tie. Yost v. Yost, 143
Neb. 80, 8 N.W.2d 686.
DIVORTIUM DICITUR A DIVERTENDO, QUIA
vir divertitur ab uxore. Co. Litt. 235. Di-
vorce is called from divertendo, because a man is
diverted from his wife.
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DOCKET
DIVULGE. To disclose or make known, as to
divulge a telephone message. United States v.
Gruber, C.C.A.N.Y., 123 F.2d 307, 309.
DIXIkME. Fr. Tenth; the tenth part. Ord.Mar.
liv. 1, tit. 1, art. 9.
In Old French Law
An income tax payable to the crown. Steph.
Lect. 359.
DO. Lat. I give. The ancient and aptest word
of feoffment and of gift. 2 Bl. Comm. 310, 316;
Co. Litt. 9.
DO, DICO, ADDICO. Lat. I give, I say, I ad-
judge. Three words used in the Roman law, to
express the extent of the civil jurisdiction of
the pr aetor. Do denoted that he gave or granted
actions, exceptions, and judices; dico, that he
pronounced judgment; addico, that he adjudged
the controverted property, or the goods of the
debtor, etc., to the plaintiff. Mackeld. Rom. Law,
§ 39.
DO, LEGO. Lat. I give, I bequeath; or I give
and bequeath. The formal words of making a
bequest or legacy, in the Roman law. Titio et
Seio hominem Stichum do, lego, I give and be-
queath to Titius and Seius my man Stichus. Inst.
2, 20, 8, 30, 31. The expression is literally re-
tained in modern wills.
DO UT DES. Lat. I give that you may give;
give [you] that you may give [me.] A formula
in the civil law, constituting a general division
under which those contracts (termed "innomi-
nate") were classed in which something was
given by one party as a consideration for some-
thing given by the other. Dig. 19, 4; Id. 19, 5, 5;
2 Bl. Comm. 444.
DO UT FACIAS. Lat. I give that you may do;
I give [you] that you may do or make [for me.]
A formula in the civil law, under which those
contracts were classed in which one party gave
or agreed to give money, in consideration the
other party did or performed certain work. Dig.
19, 5, 5; 2 Bl. Comm. 444.
In this and the foregoing phrase, the conjunction "ut" is
not to be taken as the technical means of expressing a
consideration. In the Roman usage, this word imported
a modus, that is, a qualification; while a consideration
(causa) was more aptly expressed by the word "quia."
DOCIMASIA PULMONUM. In medical juris-
prudence. The hydrostatic test used chiefly in
cases of alleged infanticide to determine whether
the child was born alive or dead. See Hydrostatic
Test.
DOCK, v. To curtail or diminish, as to dock an
entail.
DOCK, n. The cage or inclosed space in a crim-
inal court where prisoners stand when brought
in for trial.
The space, in a river or harbor, inclosed be-
tween two wharves. City of Boston v. Lecraw, 17
How. 434, 15 L.Ed. 118.
A slip or waterway extending between two
piers or projecting wharfs for the reception of
ships, sometimes including the piers themselves.
Wescott v. American Creosoting Co., 97 A. 493,
494, 86 N.J.Eq. 104.
"A dock is an artificial basin in connection with a har-
bor, used for the reception of vessels in the taking on or
discharging of their cargoes, and provided with gates for
preventing the rise and fall of the waters occasioned by
the tides, and keeping a uniform level within the docks."
Perry v. Haines, 24 S.Ct. 8, 191 U.S. 17, 48 L.Ed. 73.
DOCK-MASTER. An officer invested with pow-
ers within the docks, and a certain distance there-
from, to direct the mooring and removing of
ships, so as to prevent obstruction to the dock
entrances. Mozley & Whiteley.
DOCK WARRANT. In English law. A warrant
given by dock-owners to. the owner of merchan-
dise imported and warehoused on the dock, upon
the faith of the bills of lading, as a recogniti6n
of his title to the goods. It is a negotiable in-
strument. Pull. Port of London, p. 375.
DOCKAGE. A charge against vessels for the
privilege of mooring to the wharves or in the
slips. People v. Roberts, 92 Cal. 659, 28 Pac. 689.
A pecuniary compensation for the use of a dock
while a vessel is undergoing repairs. Ives v.
The Buckeye State, 13 Fed.Cas. 184; The In-
domable, C.C.A.N.Y., 279 F. 827, 831; Wilkens v.
Trafikaktiebolaget Grangesberg Okelosund, C.C.
A.Tex., 10 F.2d 129, 131.
DOCKET, v. To abstract and enter in a book. 3
Bl. Comm. 397, 398. To make a brief entry of any
proceeding in a court of justice in the docket.
DOCKET, n. A minute, abstract, or brief entry;
or the book containing such entries. A small
piece of paper or parchment having the effect of
a larger. Blount. A file. Touchstone Live Stock
Co. v. Easters, 172 Ga. 454, 157 S.E. 683, 684.
In Practice
A formal record, entered in brief, of the pro-
ceedings in a court of justice. Brinn v. Wooding,
298 N.Y.S. 971, 975, 164 Misc. 850.
A book containing an entry in brief of all the
important acts done in court in the conduct of
each case, from its inception to its conclusion.
The name of "docket" or "trial docket" is
sometimes given to the list or calendar of causes
set to be tried at a specified term, prepared by
the clerks for the use of the court and bar.
Kinds of Dockets
An appearance docket is one in which the ap-
pearances in actions are entered, containing also
a brief abstract of the successive steps in each
action. A bar docket is an unofficial paper con-
sisting of a transcript of the docket for a term
of court, printed for distribution to members of
the bar. Gifford v. Cole, 57 Iowa, 272, 10 N.W.
672. An execution docket is a list of the execu-
tions sued out or pending in the sheriff's office.
A judgment docket is a list or docket of the judg-
•
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DOCKET
ments entered in a given court, methodically kept
by the clerk or other proper officer, open to pub-
lic inspection, and intended to afford official notice
to interested parties of the existence or lien of
judgments.
In General
Docket fee. An attorney's fee, of a fixed sum,
chargeable with or as a part of the costs of the
action, for the attorney of the successful party;
so called because chargeable on the docket, not as
a fee for making docket entries. Bank v. Neill,
13 Mont. 377, 34 Pac. 180; Goodyear v. Sawyer,
C.C., 17 Fed. 2.
Docket, striking a. A phrase formerly used in
English bankruptcy practice. It referred to the
entry of certain papers at the bankruptcy office,
preliminary to the prosecution of the fiat against
a trader who had become bankrupt. These pa-
pers consisted of the affidavit, the bond, and the
petition of the creditor, and their object was to
obtain from the lord chancellor his fiat, author-
izing the petitioner to prosecute his complaint
against the bankrupt in the bankruptcy courts.
Brown.
DOCTOR, v. To prescribe or treat medically or
to treat as a doctor or physician. Haines v. In-
diana Trust Co., 95 Ind.App. 651, 131 N.E. 89, 91.
DOCTOR, n. A learned man; one qualified to
give instruction of the higher order in a science or
art; particularly, one who has received the high-
est academical degree in his art or faculty, as, a
doctor of laws, medicine, or theology. In col-
loquial language, however, the term is practically
restricted to practitioners of medicine. Harrison
v. State, 102 Ala. 170, 15 So. 563; State v. Mc-
Knight, 131 N.C. 717, 42 S.E. 580, 59 L.R.A. 187.
But it is not synonymous with surgeon. State
v. Miller, 59 N.D. 286, 229 N.W. 569, 574.
DOCTOR AND STUDENT. The title of a work
written by St. Germain in the reign of Henry
VIII, in which many principles of the common
law are discussed in a popular manner. It is
in the form of a dialogue between a doctor of
divinity and a student in law, and has always
been considered a book of merit and authority.
1 Kent, Comm. 504; Crabb, Eng. Law, 482.
DOCTORS' COMMONS. An institution near St.
Paul's Churchyard, in London, where, for a long
time previous to 1857, the ecclesiastical and ad-
miralty courts used to be held.
DOCTRINAL INTERPRETATION. See Interpre-
tation.
DOCTRINE. A rule, principle, theory, or tenet
of the law; as, the doctrine of merger, the doc-
trine of relation, etc.
DOCUMENT. An instrument on which is record-
ed, by means of letters, figures, or marks, matter
which may be evidentially used. In this sense the
term "document" applies to writings; to words
printed, lithographed, or photographed; to seals,
plates, or stones on which inscriptions are cut or
engraved; to photographs and pictures: to mans
or plans. The inscription may be of stone or
gems, or on wood, as well as on paper or parch-
ment. 1 Whart. Ev. § 614; Johnson Steel Street-
Rail Co. v. North Branch Steel Co., C.C.Pa., 48 F.
194; Arnold v. Water Co., 18 R.I. 189, 26 A. 55,
19 L.R.A. 602. It has various statutory meanings.
Hays v. Hinkle, Tex.Civ.App., 193 S.W. 153, 155;
Cohn v. U. S., C.C.A.N.Y., 258 F. 355, 361; Smith v.
Lingelbach, 177 Wis. 170, 187 N.W. 1007, 1008.
In the plural, the deeds, agreements, title-pa-
pers, letters, receipts, and other written instru-
ments used to prove a fact.
In the Civil Law
Evidence delivered in the forms established by
law, of whatever nature such evidence may be.
The term is, however, applied principally to the
testimony of witnesses. Sa y . Dr. Rom. § 165.
In General
Ancient documents. Deeds, wills, and other
writings more than thirty years old are so called;
they are presumed to be genuine without express.
proof, when coming from the proper custody.
Foreign document. One which was prepared
or executed in, or which comes from, a foreign
state or country.
Judicial documents. Proceedings relating to
litigation. They are divided into (1) judgments,
decrees, and verdicts; (2) depositions, examina-
tions, and inquisitions taken in the course of a
legal process; (3) writs, warrants, pleadings, etc.,
which are incident to any judicial proceedings.
See 1 Starkie, Ev. 252.
Public document. A state paper, or other in-
strument of public importance or interest, issued
or published by authority of congress or a state.
legislature. Also any document or record, evi-
dencing or connected with the public business or
the administration of public affairs, preserved in
or issued by any department of the government.
See Hammatt v. Emerson, 27 Me. 335, 46 Am.
Dec. 598. One of the publications printed by
order of congress or either house thereof. Mc-
Call v. U. S., 1 Dak. 328, 46 N.W. 608. Broadly,.
any document open to public inspection. Flint v.
Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed..
389, Ann.Cas.1912B, 1312.
DOCUMENTARY EVIDENCE. Evidence sup
plied by writings and documents of every kind_
in the widest sense of the term; evidence derived
from conventional symbols (such as letters) by
which ideas are represented on material sub-
stances. Such evidence as is furnished by written
instruments, inscriptions, documents of all kinds,
and also any inanimate objects admissible for the-
purpose, as distinguished from "oral" evidence,.
or that delivered by human beings viva voce.
People v. Purcell, 22 Cal.App.2d 126, 70 P.2d 706,
709.
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DODRANS. Lat. In Roman law. A subdivision
of the as, containing nine uncice; the proportion
of nine-twelfths, or three-fourths. 2 Bl.Comm.
462, note.
DOE, JOHN. The name of the fictitious plaintiff
in the action of ejectment. 3 Steph. Comm. 618.
DOED-BANA. In Saxon law. The actual per-
petrator of a homicide.
DOER. In Scotch law. An agent or attorney. 1
Kames, Eq. 325.
DOG-DRAW. In old forest law. The manifest
deprehension of an offender against venison in a
forest, when he was found drawing after a deer
by the scent of a hound led in his hand; or where
a person had wounded a deer or wild beast, by
shooting at him, or otherwise, and was caught
with a dog drawing after him to receive the same.
Manwood, Forest Law, 2, c. 8.
DOG-LATIN. The Latin of illiterate persons;
Latin words put together on the English gram-
matical system.
DOGGER. In maritime law. A light ship or ves-
sel. Cowell.
Dogger-fish, fish brought in ships.
Dogger-men, fishermen that belong to dogger-
ships.
DOGMA. In the civil law. A word occasionally
used as descriptive of an ordinance of the senate.
See Nov. 2, 1, 1; Dig. 27, 1, 6.
DOGS. Steel rods with clamps or tongs thereon,
for carrying heavy steel rails. Jefferson v. Denk-
mann Lumber Co., 148 So. 237, 239, 167 Miss. 246.
DOING. The formal word by which services were
reserved and expressed in old conveyances; as
"rendering" (reddendo) was expressive of rent.
Perk. c. 10, §§ 625, 635, 638. As used in La.Civ.
Code, art. 1931, the word signifies activity. Noel
Estate v. Louisiana Oil Refining Corporation, 188
La. 45, 175 So. 744, 746.
DOING BUSINESS. Within statutes on service
of process on foreign corporations, equivalent to
conducting or managing business. Wichita Filmgz Supply Co. v. Yale, 194 Mo.App. 60, 184 S.W.
119. A foreign corporation is "doing business",
making it amenable to process within state, if
it does business therein in such a manner as to
warrant the inference that it is present there.
Cannon Mfg. Co. v. Cudahy Packing Co., D.C.N.C.,
292 F. 169, 171. Or that it has subjected itself
to the jurisdiction and laws in which the service
is made. W. J. Armstrong Co. v. New York Cent.
& H. R. R. Co., 129 Minn. 104, 151 N.W. 917, 919,
L.R.A.1916E, 232, Ann.Cas.1916E, 335; The doing
of business is the exercise in the state of some
of the ordinary functions for which the corpora-
tion was organized. Davis & Worrell v. General
Motors Acceptance Corporation, 153 Ark. 626, 241
S.W. 44, 46. What constitutes "doing business"
depends on the facts in each particular case.
Walton N. Moore Dry Goods Co. v. Commercial
Industrial Co., C.C.A.,Cal., 282 F. 21, 25. The
activities of the corporation, however, must rep-
resent a more or less continuous effort; Knapp
v. Bullock Tractor Co., D.C.Cal., 242 F. 543, 550;
Johnson v. Cass & Emerson, 91 Vt. 103, 99 A. 633,
635; or be of a systematic and regular nature;
Home Lumber Co. v. Hopkins, 107 Kan. 153, 190
P. 601, 605, 10 A.L.R. 879.
The transaction of single piece of business is
not enough. Wood & Selick v. American Grocery
Co., 96 N.J.Law, 218, 114 A. 756, 757; Anderson v.
Morris & E. R. Co., C.C.A.N.Y., 216 F. 83, 87. To
the contrary. Tripp State Bank of Tripp v. Jerke,
45 S.D. 448, 188 N.W. 314, 315.
No general definition can be made of phrase "doing busi-
ness" in statutes relating to foreign corporations. Each
case must be determined on its own facts, by considering
objective of statute in which phrase is found, its purpose
and orientation to the carrying on of business, nature of
activities, their magnitude, multiplicity of contracts, and
possibility that incidents may occur and liabilities be cre-
ated, especially where entrance into state is in ordinary
prosecution of corporation's business. State Highway and
Public Works Commission v. Diamond S. S. Transp. Corp.,
225 N. C. 198, 34 S.E.2d 78, 80, 81.
Ordinarily the phrase means engaging in activities in
pursuit of gain. Welch Holding Co. v. Galloway, 161 Or.
515, 89 P.2d 559; People v. Jones, 16 N.Y.S.2d 558, 559, 172
Misc. 368.
The following transactions and businesses illustrate,
what constitutes or does not constitute "doing business" :
advertising, Society Milton Athena v. National Bank of
Greece, 1 N.Y.S.2d 155, 2 N.Y.S.2d 155; Deighan v. Bev-
erage Retailer Weekly & Trade Newspaper Corporation, 18
N.J.Misc. 705, 16 A.2d 612, 613; bringing of actions, R. L.
Witters Associates v. Ebsary Gypsum Co., D.C.Fla., 19 F.
Supp. 646, 648; Schneider v. Greater M. & S. Circuit, 259
N.Y.S. 319, 144 Misc. 534; broadcasting system, Hoffman
v. Carter, 118 N.J.L. 379, 192 A. 825; State ex rel. Colum-
bia Broadcasting Co. v. Superior Court for King County,
1 Wash.2d 379, 96 P.2d 248, 250; consignment, Oyler v. J.
P. Seeburg Corporation, D.C.Tex., 29 F.Supp. 927; Thew
Shovel Co. v. Superior Court in and for City and County
of San Francisco, 35 Cal.App.2d 183, 95 P.2d 149, 151, 152;
holding companies, Wilhelm v. Consolidated Oil Corpora-
tion, D.C.Okl., 11 F.Supp. 444, 447; Cliffs Corporation v.
Evatt, 138 Ohio St. 336, 35 N.E.2d 144, 151; insurance,
Sasnett v. Iowa State Traveling Men's Ass'n, C.C.A.Iowa,
90 F.2d 514; Hoopeston Canning Co. v. Pink, 288 N.Y. 291,
43 N.E.2d 49, 53; newspapers, Layne v. Tribune Co., 71
F.2d 223, 224, 63 App.D.C. 213; Neely v. Philadelphia In-
quirer Co., 62 F.2d 873, 874, 61 App.D.C. 334; railroads,
Klabzuba v. Southern Pac. Co., D.C.Wash., 33 F.2d 359,
360; Gadboury v. Central Vermont Ry. Co., 231 N.Y.S.
630, 632, 225 App.Div. 145; solicitation, Mandel Bros. v.
Henry A. O'Neil, Inc., C.C.A.S.D., 69 F.2d 452, 455; Bank
v. Charles Meyers & Co., 182 Md. 556, 35 A.2d 110, 113.
Illustrations of what constitutes "doing business" within
various taxing statutes follow : Capital stock tax, Good-
year Inv. Corporation v. Campbell, C.C.A.Ohio, 139 F.2d
188, 190, 191: Refrigeration Discount Corporation v. Metz-
ger, D.C.Pa., 10 F.Supp. 748, 749; excise tax, Harmar Coal.
Co. v. Heiner, D.C.Pa., 26 F.2d 729, 730; Queens Run Re-
fractories Co. v. Commonwealth, 270 Mass. 19, 169 N.E. 515,
516; franchise tax, Stone v. Interstate Natural Gas Co.,
C.C.A.Miss., 103 F.2d 544, 548; Cliffs Corporation v. Evatt,
138 Ohio St. 336, 35 N.E.2d 144, 151; income tax, Blair v.
Wilson Syndicate Trust, C.C.A., 39 F.2d 43, 45; Welch
Holding Co. v. Galloway, 161 Or. 515, 89 P.2d 559, 564.
DOITKIN, or DOIT. A base coin of small value,
prohibited by St. 3 Hen. V. c. 1. We still retain
the phrase, in the common saying, when we would
undervalue a man, that he is not worth a doit.
Jacob.
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DOLE
DOLE. A part, share, or portion, as of a meadow.
To "dole out" anything is to deal or distribute in
small portions. Holthouse. In Scotch law, crim-
inal intent; evil design. Bell, Dict. voc. "Crime."
DOL1ANCE. A peculiar appeal in the Channel
Islands. It is a personal charge against a judi-
cial officer, either of misconduct or of negligence.
L. R. 6 P. C. 155. It still exists in a modified
form. L. R. 5 A. C. 348. See 48 L. Jour. 281.
DOLES, or DOOLS. Slips of pasture left be-
tween the furrows of plowed land.
DOW. Sax. A wound. Spelman.
DOLG-ROTE. A recompense for a scar or wound.
Cowell.
DOLI. Lat. See Dolus.
DOLI CAPAX. Capable of malice or criminal in-
tention; having sufficient discretion and intelli-
gence to distinguish between right and wrong,
and so to become amenable to the criminal laws.
DOLI INCAPAX. Incapable of criminal inten-
tion or malice; not of the age of discretion; not
possessed of sufficient discretion and intelligence
to distinguish between right and wrong to the
extent of being criminally responsible for his
actions.
DOLLAR. The unit employed in the United
States in calculating money values. It is of the
value of one hundred cents. People v. Alba, 46
Cal.App.2d 859, 117 P.2d 63. Money or currency
issued by lawful authority and intended to pass
and circulate as such. Neufield v. United States,
118 F.2d 375, 387, 73 App.D.C. 174.
DOLLY. A kind of handbarrow or handcart, con-
sisting essentially of a strong, braced frame ter-
minating in a pair of handles at one end and sup-
ported on a pair of small heavy wheels with
broad rim. A small heavy rectangular frame
supported on four small wheels used instead of
rollers for moving heavy objects as on a floor.
McGillivary v. Montgomery Ward & Co., 19 Wash.
2d 582, 143 P.2d 550, 552. See, Box Dolly.
DOLO. In Spanish law. Bad or mischievous de-
sign. White, New Recop. b. 1, tit. 1, c. 1, § 3.
DOLO FACIT QUI PETIT QUOD REDDITURUS
EST. He acts with guile who demands that which
he will have to return. Broom, Max. 346.
DOLO MALO PACTUMSE NON SERVATURUM.
Dig. 2, 14, 7, § 9. An agreement induced by fraud
cannot stand.
DOLORIMETER. An instrument used by a phy-
sician to measure a patient's pain threshold. The
instrument emits a ray of light which is shined
into one's eye at various degrees of brightness.
Dolorimetry is the science of measuring pain.
DOLOSUS VERSATUR IN GENERALIBUS. A
person intending to deceive deals in general terms.
Wing. Max. 636; 2 Coke, 34a; 6 Clark & F. 699;
Broom, Max. 289.
DOLUM EX INDICIIS PERSPICUIS PROBARI
CONVENIT. Fraud should be proved by clear
tokens. Code, 2, 21, 6; 1 Story, Cont. § 625.
DOLUS. In the civil law. Guile; deceitfulness;
malicious fraud. A fraudulent address or trick
used to deceive some one; a fraud. Dig. 4, 3, 1.
Any subtle contrivance by words or acts with a
design to circumvent. 2 Kent, Comm. 560; Code,
2, 21.
Such acts or omissions as operate as a deception
upon the other party, or violate the just confidence
reposed by him, whether there be a deceitful in-
tent (malus animus) or not. Poth. Traitê de De-
pot, nn. 23, 27; Story, Bailm. § 20a; 2 Kent,
Comm. 506, note.
Fraud, willfulness, or intentionality. In that
use it is opposed to culpa, which is negligence
merely, in greater or less degree. The policy of
the law may sometimes treat extreme culpa as if
it were dolus, upon the maxim culpa dolo com-
paratur. A person is always liable for dolus pro-
ducing damage, but not always for culpa produc-
ing damage, even though extreme. Brown.
DOLUS AUCTORIS NON NOCET SUCCESSORI.
The fraud of a predecessor prejudices not his suc-
cessor.
DOLUS BONUS, DOLUS MALUS. In a wide
sense, the Roman law distinguishes between
"good," or rather "permissible" dolus and "bad"
or fraudulent dolus. The former is justifiable or
allowable deceit; it is that which a man may em-
ploy in self-defense against an unlawful attack,
or for another permissible purpose, as when one
dissembles the truth to prevent a lunatic from
injuring himself or others. The latter exists
where one intentionally misleads another or takes
advantage of another's error wrongfully, by any
form of deception, fraud, or cheating. Mackeld.
Rom. Law, § 179; Broom, Max. 349; 2 Kent,
Comm. 560, note.
DOLUS CIRCUITU NON PURGATUR. Fraud is
not purged by circuity. Bac. Max. 4; Broom, Max.
228.
DOLUS DANS LOCUM CONTRACTUI. Fraud
(or deceit) giving rise to the contract; that is, a
fraudulent misrepresentation made by one of the
parties to the contract, and relied upon by the
other, and which was actually instrumental in in-
ducing the latter to enter into the contract.
DOLUS EST MACHINATIO, CUM ALIUD DIS-
SIMULAT ALIUD AGIT. Lane, 47. Deceit is an
artifice, since it pretends one thing and does an-
other.
DOLUS ET FRAUS NEMINI PATROCINENTUR,
(PATROCINARI DEBENT.) Deceit and fraud
shall excuse or benefit no man. Yearb. 14 Hen.
VIII. 8; Best, Ev. p. 469, § 428; 1 Story, Eq. Jur.
§ 395.
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DOMESTICUS
DOLUS LATET IN GENERALIBUS. Fraud lurks
in generalities. Tray. Lat. Max. 162.
DOLUS VERSATUR IN GENERALIBUS. Fraud
deals in generalities. 2 Coke, 34a; 3 Coke, 81a.
DOM. PROC. An abbreviation of Domus Pro-
cerum or Domo Procerum; the house of lords
in England. Sometimes expressed by the letters
D. P.
DOMAIN. The complete and absolute ownership,of land; a paramount and individual right of
property in land. People v. Shearer, 30 Cal. 658.
Also the real estate so owned. The inherent sov-
ereign power claimed by the legislature of a
state, of controlling private property for public
uses, is termed the "right of eminent domain."
2 Kent, Comm. 339. See Eminent Domain.
A distinction has been made between "property" and
"domain." The former is said to be that quality which is
conceived to be in the thing itself, considered as belonging
to such or such person, exclusively of all others. By the
latter is understood that right which the owner has of dis-
posing of the thing. Hence "domain" and "property" are
said to be correlative terms. The one is the active right
to dispose of ; the other a passive quality which follows
the thing and places it at the disposition of the owner. 3
Toullier, no. 83.
National domain is sometimes applied to the
aggregate of the property owned directly by a
nation. Civ. Code La. art. 486. Public domain
embraces all lands, the title to which is in the
United States, including as well land occupied
_for the purposes of federal buildings, arsenals,
dock-yards, etc., as land of an agricultural or
mineral character not yet granted to private own-
ers. Day Land & Cattle Co. v. State, 68 Tex. 526,,4 S.W. 865.
DOMBEC, DOMBOC. (Sax. From dom, judgment,
and bec, boc, a book.) Dome-book or doom-book.
A name given among the Saxons to a code of laws.
Several of the Saxon kings published dombocs,
but the most important one was that attributed
to Alfred. Crabb, Com. Law, 7. This is some-
times confounded with the celebrated Domesday-
Book. See Dome-Book; Domesday.
DOME. (Sax.) Doom; sentence; judgment. An
oath. The homager's oath in the black book of
Hereford. Blount.
DOME-BOOK. A book or code said to have been
compiled under the direction of Alfred, for the
general use of the whole kingdom of England;
containing, as is supposed, the principal maxims
of the common law, the penalties for misdemean-
ors, and the forms of judicial proceedings. It is
said to have been extant so late as the reign of
Edward IV., but is now lost. 1 Bl.Comm. 64, 65.
DOMESDAY, DOMESDAY-BOOK. (Sax.) An an-
cient record made in the time of William the Con-
queror, and now remaining in the English excheq-
uer, consisting of two volumes of unequal size,
containing minute and accurate surveys of the
lands in England. 2 Bl.Comm. 49, 50. The work
was begun by five justices in each county in 1081,
and finished in 1086.
DOMESMEN. (Sax.) An inferior kind of judges.
Men appointed to doom (judge) in matters in con-
troversy. Cowell. Suitors in a court of a manor
in antient demesne, who are judges there. Blount;
Whishaw; Termes de la Ley.
DOMESTIC, n. A domestic, or, in full, domestic
servant, is a servant who resides in the same
house with the master. The term does not extend
to workmen or laborers employed out of doors.
Ex parte Meason, 5 Bin. (Pa.) 167; Richardson v.
State, 43 Tex. 456; Anderson v. Ueland, 197 Minn.
518, 267 N.W. 517, 518.
The Louisiana Civil Code enumerates as domestics those
who receive wages and stay in the house of the person
paying and employing them, for his own service or that of
his family ; such as valets, footmen, cooks, butlers, and
others who reside in the house. Persons employed in pub-
lic houses are not included. Cook v. Dodge, 6 La.Ann. 276.
The term is sometimes extended, however, to include
servants who do not reside in the same house as the master.
Catto v. Plant, 106 Conn. 236, 137 A. 764, 766 (gardner) ;
Douglas v. State, 88 Tex.Cr.R. 295, 225 S.W. 536, 538 (house
porter).
DOMESTIC, adj. Pertaining, belonging, or relat-
ing to a home, a domicile, or to the place of birth,
origin, creation, or transaction. Catto v. Plant,
106 Conn. 236, 137 A. 764, 765; In re Savin's Es-
tate, 131 N.J.Eq. 563, 26 A.2d 270, 273.
As to domestic "Administrators," "Attachment,"
"Bill of Exchange," "Commerce," "Corporations,"
"Creditors," "Factors," "Fixtures," "Judgment,"
and "Manufactures," see those titles.
DOMESTIC ANIMALS. Such as are habituated
to live in or about the habitations of men, or such
as contribute to the support of a family or the
wealth of the community. This term includes
horses, (State v. Gould, 26 W.Va. 264; Osborn v.
Lenox, 2 Allen [Mass.] 207,) male goat, (Young
v. Blaum, La.App., 146 So. 168, 169) ; cattle (Ya-
zoo & Mississippi R. Co. v. Gordon, 184 Miss. 885,
186 So. 631, 632; parrot (K. G. 0. Construction
Co. v. King, N.J.Dist.Ct., 12 N.J.Misc. 291, 171 A.
164, 165.
DOMESTIC COURTS. Those existing and having
jurisdiction at the place of the party's residence
or domicile. Dickinson v. Railroad Co., 7 W.Va.
417.
DOMESTIC PURPOSES. As regards rights of
riparian owner, extends to culinary purposes and
to purposes of cleansing, washing, feeding, and
supplying an ordinary quantity of cattle. Cowell
v. Armstrong, 290 P. 1036, 1038, 210 Cal.App. 218.
It includes consumption and sustenance of hu-
man being and does not necessarily exclude oc-
cupants of hotels, apartments, boarding houses,
etc. Prather v. Hoberg, 24 Cal.2d 549, 150 P.2d
405, 412.
DOMESTIC SERVANT. See Domestic.
DOMESTICATED. Made domestic or converted
to domestic use. Commonwealth v. Flynn, 285
Mass. 136, 188 N.E. 627, 628, 92 A.L.R. 206.
DOMESTICUS. In old European law. A senes-
chal, steward, or major domo; a judge's assistant;
an assessor, (q. v.). Spelman.
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DOMICELLA
DOMICELLA. In old English law. A damsel.
Fleta, lib. 1, c. 20, § 80.
DOMICELLUS. In old English law. A better
sort of servant in monasteries; also an appella-
tion of a king's bastard.
DOMICILE. That place where a man has his
true, fixed, and permanent home and principal
establishment, and to which whenever he is absent
he has the intention of returning. Kurilla v. Roth,
132 N.J.L. 213, 38 A.2d 862, 864; In re Stabile, 348
Pa. 587, 36 A.2d 451, 458; Shreveport Long Leaf
Lumber Co. v. Wilson, D.C.La., 38 F.Supp. 629, 631,
632. Not for a mere special or temporary pur-
se, but with the present intention of making a
permanent home, for an unlimited or indefinite
period. In re Garneau, 127 F. 677, 62 C.C.A. 403;
In re Gilbert's Estate, 15 A.2d 111, 117, 118, 18 N.J.
Misc. 540; In re Schultz' Estate, 316 Ill.App. 540,
45 N.E.2d 577, 582. Davis v. Davis, Ohio App., 57
N.E.2d 703, 704.
In international law, a residence at a particu-
lar place, accompanied with positive or presump-
tive proof of an intention to continue there for
an unlimited time. State v. Collector of Borden-
town, 32 N.J.Law, 192; Graham v. Graham, 81 N.
W. 44, 9 N.D. 88; Phillimore, Int. Law 49.
The word "domicile" is derived from latin "domus",
meaning home or dwelling house, and domicile is legal
conception of "home". In re Schultz' Estate, 316 Ill.App.
45 N.E.2d 577, 582, 316 Ill.App. 540.
The established, fixed, permanent, or ordinary dwelling-
place or place of residence of a person, as distinguished
from his temporary and transient, though actual, place of
residence. It is his legal residence, as distinguished from
his temporary place of abode; or his home, as distin-
guished from a place to which business or pleasure may
temporarily call him. Towson v. Towson, 126 Va. 640, 102
S.E. 48, 52.
"Citizenship," "habitancy," and "residence" are several-
ly words which in the particular case may mean precisely
the same as domicile. Baker v. Keck, D.C.Ill., 13 F.Supp.
487. Earley v. Hershey Transit Co., D.C.Pa., 55 F.Supp.
981, 982; Dodd v. Lorenz, 210 Iowa 513, 231 N.W. 422,
424; Commonwealth ex rel. Fortney v. Bobrofskie, 329
Pa. 44, 196 A. 489, 490; Perkins v. Guaranty Trust Co.,
of New York, 274 N.Y. 250, 8 N.E.2d 849, 852.
"Domicile" and "residence," however, are frequently
distinguished, in that domicile is the home, the fixed place
of habitation; while residence is a transient place of dwell-
ing. Fisher v. Jordan, C.C.A.Tex., 116 F.2d 183, 186;
Minick v. Minick, 111 Fla. 469, 149 So. 483, 488; Hartzler
v. Radeka, 265 Mich. 451, 251 N.W. 554.
Domicile may be deemed to be of three sorts,—domicile
by birth, domicile by choice, and domicile by operation of
law. The first is the common case of the place of birth,
domicilium originis; the second is that which is voluntari-
ly acquired by a party, proprio motu; the last is conse-
quential, as that of the wife arising from marriage. Story,
Confl. Laws, § 46. And see Railroad Co. v. Kirnbrough, 115
Ky. 512, 74 S.W. 229; Johnson v. Harvey, 261 Ky. 522, 88
S.W.2d 42, 46, 47.
Abandonment of domicile, see Abandonment.
Commercial Domicile
A domicile acquired by the maintenance of a
commercial establishment; a domicile which a
citizen of a foreign country may acquire by con-
ducting business in another country. 1 Kent, 82.
See Dicey, Dom. 341; The Dos Hermanos, 2
Wheat. 76, 4 L.Ed. 189.
De Facto Domicile
In French law, permanent and fixed residence
in France of an alien who has not acquired French
citizenship nor taken steps to do so, but who in-
tends to make his home permanently or indefinite-
ly in that country; called domicile "de facto'r
because domicile in the full sense of that term, as
used in France, can only be acquired by an act
equivalent to naturalization. In re Cruger's Will,
36 Misc. 477, 73 N.Y.S. 812.
Domestic Domicile
A name sometimes used for "municipal domi-
cile" (q. v.). Hayward v. Hayward, 65 Ind.App.
440, 115 N.E. 966, 970.
Domicile of Choice
The essentials of "domicile" of choice are the
fact of physical presence at a dwelling place and
the intention to make that place home. New York
Trust Co. v. Riley, Del., 16 A.2d 772, 776, 783, 785;
In re Eisenberg's Estate, 31 N.Y.S.2d 380, 384, 385,
386, 177 Misc. 655; Prince v. New York Life Ins.
Co., D.C.Mass., 24 F.Supp. 41, 42.
Domicile of Corporation
Place considered by law as center of corporate
affairs and place where its functions are dis-
charged. Fisher & Van Gilder v. First Trust
Joint-Stock Land Bank, 210 Iowa 531, 231 N.W.
671, 672, 69 A.L.R. 1340.
Domicile of Origin
The home of the parents. Phillim. Dom. 25,
101. That which arises from a man's birth and
connections. 5 Ves. 750. The domicile of the
parents at the time of birth, or what is termed
the "domicile of origin," constitutes the domicile
of an infant, and continues until abandoned, or
until the acquisition of a new domicile in a dif-
ferent place. Struble v. Struble, Tex.Civ.App., 177
S.W.2d 279, 283.
Domicile of Succession
As distinguished from a commercial, political,
or forensic domicile, the actual residence of a per-
son within some jurisdiction, of such a character
as shall, according to the well-established prin-
ciples of public law, give direction to the succes-
sion of his personal estate. Smith v, Croom, 7 Fla.
81.
Elected Domicile
The domicile of parties fixed in a contract be-
tween them for the purposes of such contract.
Woodworth v. Bank of America, 19 Johns., N.Y.,
417, 10 Am.Dec. 239.
Foreign Domicile
A domicile established by a citizen or subject
of one sovereignty within the territory of another.
Matrimonial Domicile
The place where a husband and wife have es-
tablished a home, in which they reside in the re-
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DOMINION
lation of husband and wife, and where the matri-
monial contract is being performed. Gould v.
Gould, 201 App.Div. 670, 194 N.Y.S. 745, 747.
Municipal Domicile
One which as distinguished from "national dom-
icile" and "quasi national domicile" (see those
titles, infra), has reference to residence in a coun-
ty, township, or municipality. Hayward v. Hay-
ward, 65 Ind.App. 440, 115 N.E. 966, 970.
National Domicile
The domicile of a person, considered as being
within the territory of a particular nation, and
not with reference to a particular locality or sub-
division of a nation.
Natural Domicile
The same as domicile of origin or domicile by
birth. Johnson v. Twenty-One Bales, 13 Fed.Cas.
863.
Necessary Domicile
That kind of domicile which exists by operation
of law, as distinguished from voluntary domicile
or domicile of choice. Phillim. Dom. 27-97.
Quasi National Domicile
One involving residence in a state. Hayward v.
Hayward, 65 Ind.App. 440, 115 N.E. 966, 970. See
National Domicile, supra.
DOMICILED. Established in a given domicile;
belonging to a given state or jurisdiction by right
of domicile.
DOMICILIARY. Pertaining to domicile; relating
to one's domicile. Existing or created at, or con-
nected with, the domicile of a suitor or of a de-
cedent.
DOMICILIARY ADMINISTRATION. Administra-
tion in state where person was domiciled at time
of death is deemed principal or primary adminis-
tration and is ordinarily termed "domiciliary ad-
ministration." First Nat. Bank v. Blessing, 231
Mo.App. 288, 98 S.W.2d 149, 151, 231 Mo.App. 288.
DOMICILIATE. To establish one's domicile; to
take up one's fixed residence in a given place.
To establish the domicile of another person whose
legal residence follows one's own.
DOMICILIATION. In Spanish law. The acquisi-
tion of domiciliary rights and status, nearly equi-
valent to naturalization, which may be accom-
plished by being born in the kingdom, by conver-
sion to the Catholic faith there, by taking up a
permanent residence in some settlement and mar-
rying a native woman, and by attaching oneself to
the soil, purchasing or acquiring real property
and possessions. Yates v. lams, 10 Tex. 168.
DOMICILIUM. Lat. Domicile (q. v.).
DOMIGERIUM. In old English law. Power over
another; also danger. Bract. 1. 4, t. 1, c. 10.
DOMINA (DAME). A title given to honorable
women, who anciently, in their own right of in-
heritance, held a barony. Cowell.
DOMINANT ESTATE OR TENEMENT. That to
which a servitude or easement is due, or for the
benefit of which it exists. A term used in the
civil and Scotch law, and thence in ours, relating
to servitudes, meaning the tenement or subject
in favor of which the service is constituted; as
the tenement over which the servitude extends is
called the "servient tenement." Union Falls Pow-
er Co. v. Marinette County, 238 Wis. 134, 298 N.W.
598, 600, 601, 134 A.L.R. 958.
DOMINATE. To master, to rule, or to control.
Humble Oil & Refining Co. v. National Labor Re-
lations Board, C.C.A.5, 113 F.2d 85, 88, 90.
DOMINATIO. In old English law. Lordship.
DOMINICA PALMARUM. (Dominica in ramis
palmarum.) L. Lat. Palm Sunday. Townsh. Pl.
131; Cowell; Blount.
DOMINICAL. That which denotes the Lord's day,
or Sunday.
DOMINICAN NUNS. An order of nuns founded
by St. Dominic under a modified form of St. Aug-
ustine's rule, chiefly employed in teaching girls.
Sacred Heart Academy of Galveston v. Karsch,
173 Tenn. 618, 122 S.W.2d 416, 417.
DOMINICIDE. The act of killing one's lord or
master.
DOMINICUM. Lat. Domain; demain; demesne.
A lordship. That of which one has the lordship
or ownership. That which remains under the
lord's immediate charge and control. Spelman;
Blount.
In Domesday Book it meant the home farm as distin-
guished from the holdings of the tenants. Vinogradoff,
Engl.Soc. in Eleventh Century 253.
Property; domain; anything pertaining to a
lord. Cowell. In Ecclesiastical law. A church,
or any other building consecrated to God. Du
Cange.
DOMINICUM ANTIQUUM. In old English law.
Ancient demesne. Bract. fol. 369b.
DOMINIO. Sp. In Spanish law. A term corres-
ponding to and derived from the Latin dominium
(q. v.). Dominio alto, eminent domain; dominio
directo, immediate ownership; dominio utile,
beneficial ownership. Hart v. Burnett, 15 Cal.
556.
DOMINION. Ownership, or right to property or
perfect or complete property or ownership. Whe-
lan v. Henderson, Tex.Civ.App., 137 S.W 2d 150,
153. Title to an article of property which arises
from the power of disposition and the right of
claiming it. Baker v. Westcott, 73 Tex. 129, 11
S.W. 157, 8 East, 579. See, also, State v. John-
son, 34 S.D. 601, 149 N.W. 730, 734.
Sovereignty or lordship; as the dominion of
the seas. Moll. de Jure Mar. 91, 92.
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DOMINION
In the civil law, with reference to the title to property
which is transferred by a sale of it, dominion is said to be
either "proximate" or "remote," the former being the
kind of title vesting in the purchaser when he has acquired
both the ownership and the possession of the article, the
latter describing the nature of his title when he has legiti-
mately acquired the ownership of the property but there
has been no delivery. Coles v. Perry, 7 Tex. 109.
DOMINIUM. In the civil and old English law.
Ownership; property in the largest sense, includ-
ing both the right of property and the right of
possession or use.
The mere right of property, as distinguished
from the possession or usufruct. Dig. 41, 2, 17, 1;
Calvin. The right which a lord had in the fee
of his tenant. In this sense the word is very
clearly distinguished by Bracton from dominicum.
The estate of a feoffee to uses. "The feoffees
to use shall have the dominium, and the cestui
que use the disposition." Latch. 137.
Sovereignty or dominion. Dominium maris, the
sovereignty of the sea.
DOMINIUM DIRECTUM.
In the civil law. Strict ownership; that which
was founded on strict law, as distinguished from
equity. In later law. Property without use; the
right of a landlord. Tayl. Civil Law 478. In
feudal law. Right or proper ownership;—the
right of a superior or lord, as distinguished from
that of his vassal or tenant. The title or prop-
erty which the sovereign in England is considered
as possessing in all the lands of the kingdom,
they being holden either immediately or mediate-
ly of him as lord paramount.
DOMINIUM DIRECTUM ET UTILE. The com-
plete and absolute dominion in property; the
union of the title and the exclusive use. Fairfax
v. Hunter, 7 Cranch, 603, 3 L.Ed. 453.
DOMINIUM EMINENS. Eminent domain.
DOMINIUM NON POTEST ESSE IN PENDEN-
TI. Lordship cannot be in suspense, i. e., prop-
erty cannot remain in abeyance. Halk. Law Max.
39.
DOMINIUM PLENUM. Full ownership; the un-
ion of the dominium directum with the dominium
utile. Tayl. Civil Law, 478.
DOMINIUM UTILE. In the civil law. Equitable
or praetorian ownership; that which was found-
ed on equity. Mackeld. Rom. Law, § 327, note.
In later law. Use without property; the right
of a tenant. Tayl. Civil Law, 478. In feudal law.
Useful or beneficial ownership; the usufruct, or
right to the use and profits of the soil, as dis-
tinguished from the dominium directum (q. v.)
or ownership of the soil itself; the right of a vas-
sal or tenant. 2 Bl.Comm. 105.
DOMINO VOLENTE. Lat. The owner being will-
ing; with the consent of the owner.
DOMINUS.
In feudal and ecclesiastical law. A lord, or
feudal superior. Dominus rex, the lord the king;
• the king's title as lord paramount 1 BI.Comm.
367. Dominus capitalis, a chief lord. Dominus
medius, a mesne or intermediate lord. Dominus
ligius, liege lord or sovereign. Id.
Lord or sir; a title of distinction. It usually
denoted a knight or clergyman; and, according
to Cowell, was sometimes given to a gentleman of
quality, though not a knight, especially if he
were lord of a manor.
The owner or proprietor of a thing, as distin-
guished from him who uses it merely. Calvin.
A master or principal, as distinguished from an
agent or attorney. Story, Ag. § 3.
In the civil law. A husband. A family. Vicat.
DOMINUS CAPITALIS LOCO H1EREDIS HA-
BETUR, QUOTIES PER DEFECTUM VEL DE-
LICTUM EXTINGUITUR SANGUIS SUI TENEN-
TIS. Co. Litt. 18. The supreme lord takes the
place of the heir, as often as the blood of the
tenant is extinct through deficiency or crime.
DOMINUS LITIS. Lat. The master of the suit;
i. e., the person who was really and directly in-
terested in the suit as a party, as distinguished
from his attorney or advocate. But the term is
also applied to one who, though not originally a
party, has made himself such, by intervention or
otherwise, and has assumed entire control and
responsibility for one side, and is treated by the
court as liable for costs. Virginia Electric &
Power Co. v. Bowers, 181 Va. 542, 25 S.E.2d 361,
363.
It is also said that the attorney himself, when the cause
has been tried, becomes the dominus litis. Vicat.
DOMINUS NAVIS. In the civil law. The owner
of a vessel. Dig. 39, 4, 11, 2; Wharton.
DOMINUS NON MARITABIT PUPILLUM NISI
SEMEL. Co. Litt. 9. A lord cannot give a ward
in marriage but once.
DOMINUS REX NULLUM HABERE POTEST
PAREM, MULTO MINUS SUPERIOREM. The
king cannot have an equal, much less a superior.
1 Reeve, Eng. Law, 115.
DOMITLE. Lat. Tame; domesticated; not wild.
Applied to domestic animals, in which a man may
have an absolute property. 2 Bl.Comm. 391.
DOMMAGES INTARETS. In French law. Dam-
ages.
DOMO REPARANDA. A writ that lay for one
against his neighbor, by the anticipated fall of
whose house he feared a damage and injury to his
own. Reg. Orig. 153.
DOMUS. Lat. In the civil and old English law.
A house or dwelling; a habitation. Inst. 4, 4, 8;
Townsh.Pl. 183-485. Shreveport Long Leaf Lum-
ber Co. v. Wilson, D.C.La., 38 F.Supp. 629, 631.
See Domicile.
DOMUS CAPITULARIS. In old records. A chap-
ter-house; the chapter-house. Dyer, 26b.
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DONATIO
DOMUS CONVERSORUM. An ancient house
built or appointed by King Henry III. for such
Jews as were converted to the Christian faith;
but King Edward III., who expelled the Jews from
the kingdom, deputed the place for the custody of
the rolls and records of the chancery. Jacob.
DOMUS DEL The house of God; a name applied
to many hospitals and religious houses.
DOMUS MANSIONALIS. A mansion house. 1
Hale, P.C. 558; State v. Brooks, 4 Conn. 446; State
v. Sutcliffe, 4 Strob. (S.C.) 376.
DOMUS PROCERUM. The house of lords, ab-
breviated into Dom. Proc., or D. P.
DOMUS SUA CUIQUE EST TUTISSIMUM RE-
FUGIUM. To every man his own house is his
safest refuge. 5 Coke, 91b; 11 Coke, 82; 3 Inst.
162. The house of every one is to him as his cas-
tle and fortress, as well for his defense .against
injury and violence as for his repose. 5 Coke,
91b; Say. 227; Broom, Max. 432. A man's dwell-
ing-house is his castle, not for his own personal
protection merely, but also for the protection of
his family and his property therein. 19 How.St.
Tr. 1030.
DOMUS TUTISSIMUM CUIQUE REFUGIUM AT-
QUE RECEPTACULUM SIT. A man's house
should be his safest refuge and shelter. The habi-
tation of each one is an inviolable asylum for him.
A maxim of the Roman law. Dig. 2, 4, 18.
DONA CLANDESTINA SUNT SEMPER SUS-
PICIOSA. 3 Coke, 81. Clandestine gifts are al-
ways suspicious. Noy, Max., 9th Ed. 152; 4 B. &
C. 652; 1 M. & S. 253; Broom, Max. 289, 290.
DONARI VIDETUR, QUOD NULLO JURE CO-
GENTE CONCEDITUR. Dig. 50, 17, 82. A thing
is said to be given when it is yielded otherwise
than by virtue of right (that is considered to be
given which is granted when no law compels).
DONATARIUS. A donee; one to whom some-
thing is given. See Donee.
DONATIO. Lat. A gift. A transfer of the title
to property to one who receives it without paying
for it. Vicat. The act by which the owner of a
thing voluntarily transfers the title and possession
of the same from himself to another person, with-
out any consideration. See Indiana N. & S. R. W.
Co. v. City of Attica, 56 Ind. 476.
Its literal translation, "gift," has acquired in real law a
more limited meaning, being applied to the conveyance of
estates tail.  2 Bl.Comm. 316; Littleton, § 59; West,
Symb. § 254; 4 Cruise, Dig. 51.
By the civil law (adopted into the English and American
law) donations are either inter vivos (between living per-
sons) or mortis causa (in anticipation of death.) As to
these forms, see infra. A donatio or gift as between living
persons is called donatio mera or pura when it is a simple
gift without compulsion or consideration, that is, resting
solely on the generosity of the donor, as in the case of
most charitable gifts. It is called donatio remuneratoria
when given as a reward for past services, but still not un-
der any legal compulsion, as in the case of pensions and
land-grants. It is called donatio sub modo (or modalis)
when given for the attainment of some special object or
on condition that the donee shall do something not specially
for the benefit of the donor, as in the case of the endow-
ment of hospitals, colleges, etc., coupled with the condition
that they shall be established and maintained. Mackeld.
Rom.Law, § 466; Fisk v. Flores, 43 Tex. 340; Noe v. Card,
14 Cal. 576. The following terms are also used: Donatio
conditionalis, a conditional gift; donatio relata, a gift
made with reference to some service already done, (Fisk
v. Flores, 43 Tex. 340;) donatio stricta et coarctura, a re-
stricted gift, as an estate tail.
DONATIO INOFFICIOSA. An inofficious (un-
dutiful) gift; a gift of so great a part of the don-
or's property that the birthright portion of his
heirs is diminished. Mackeld.Rom.Law, § 469.
DONATIO INTER VIVOS. A gift between the
living. The ordinary kind of gift by one person
to another. 2 Kent, Comm. 438; 2 Steph.Comm.
102. A term derived from the civil law. Inst. 2,
7, 2. A donation inter vivos (between living per-
sons) is an act by which the donor divests himself
at present and irrevocably of the thing given in
favor of the donee who accepts it. Succession
of Brand, 162 La. 880, 111 So. 267, 268.
There are three kinds of "donations inter vivos", namely,
"gratuitous donations", "onerous donations", and "re-
munerative donations", the first being based on mere lib-
erality, the second being burdened with charges imposed
by the donee, and the third being recompense for services
rendered. White v. White, La.App., 7 So.2d 255, 257.
DONATIO MORTIS CAUSA. A gift made by
a person in sickness, who, apprehending his dis-
solution near, delivers, o ar causes to be delivered,
to another the possession of any personal goods,
to keep as his own in case of the donor's de cease.
2 Bl.Comm. 514. The civil law defines it to be
a gift under apprehension of death; as when any-
thing is given upon condition that, if the donor
dies, the donee shall possess it absolutely, or re-
turn it if the donor should survive or should re-
pent of having made the gift, or if the donee
should die before the donor. Adams v. Nicholas,
1 Miles (Pa.) 109-117. A gift in view of death is
one which is made in contemplation, fear, or peril
of death, and with intent that it shall take effect
only in case of the death of the giver. Prender-
gast v. Drew, 103 Conn. 88, 130 A. 75, 76. A do-
nation mortis causa (in prospect of death) is an
act to take effect when the donor shall no longer
exist, by which he disposes of the whole or a part
of his property, and which is revocable.
DONATIO NON PRIESUMITUR. A gift is not
presumed. Jenk.Cent. 109.
DONATIO PERFICITUR POSSESSIONE ACCI-
PIENTIS. A gift is perfected [made complete] by
the possession of the receiver. Jenk.Cent. 109,
case 9. A gift is incomplete until possession is de-
livered. 2 Kent, Comm. 438; Ewing v. Ewing, 2
Leigh (Va.) 337.
DONATIO PRINCIPIS INTELLIGITUR SINE
PRAEJUDICIO TERTII. Da y .Ir.K.B. 75. A gift of
the prince is understood without prejudice to a
third party.
DONATIO PROPTER NUPTIAS. A gift on ac-
count of marriage. In Roman law, the bride-
groom's 'gift to the bride in anticipation of mar
riage and to secure her dos was called "donatio
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DONATION
ante nuptias;" but by an ordinance of Justinian
such gift might be made after as well as before
marriage, and in that case it was called "donatio
propter nuptias." Mackeld.Rom.Law, § 572.
DONATION. A gift. Mills v. Stewart, 76 Mont.
429, 247 P. 332, 334, 47 A.L.R. 424; Darnell v. Eq-
uity Life Ins. Co.'s Receiver, 179 Ky. 465, 200 S.
W. 967, 972; Fairfield v. Huntington, 23 Ariz. 528,
205 P. 814, 815, 22 A.L.R. 1438. United Brother-
hood of Carpenters and Joiners of America v.
Rogers, 165 Okl. 131, 25 P.2d 57. See Donatio.
As sometimes used, however, the term does not necessari-
ly mean an absolute gift without any condition or consid-
eration whatever. International & G. N. Ry. Co. v. Ander-
son County, Tex.Civ.App., 174 S.W. 305, 315.
A donation of real estate is certainly not a mortgage or
privilege, but is a transfer of property of a peculiar kind,
subject to revocation, sometimes without cause, and always
subject to reduction at the suit of the forced heirs of the
donor. Bank of Delphi v. Lea, 139 La. 730, 72 So. 187, 188.
In ecclesiastical law. A mode of acquiring a
benefice by deed of gift alone, without presenta-
tion, institution, or induction. 3 Steph.Comm. 81.
DONATION LANDS. Lands granted from the
public domain to an individual as a bounty, gift,
or donation; particularly, in early Pennsylvania
history, lands thus granted to soldiers of the revo-
lutionary war.
DONATIONUM ALIA PERFECTA, ALIA IN-
CEPTA ET NON PERFECTA, UT SI DONATIO
LECTA FUIT ET CONCESSA, AO TRADITIO
NONDUM FUERIT SUBSECUTA. Some gifts
are perfect, others incipient and not perfect as if
a gift were read and agreed to, but delivery had
not then followed. Co.Litt. 56.
DONATIVE ADVOWSON. In ecclesiastical law.
A species of advowson, where the benefice is con-
ferred on the clerk by the patron's deed of dona-
tion, without presentation, institution, or induc-
tion. 2 B1.Comm. 23; Termes de la Ley.
DONATIVE TRUST. May be created by transfer
of property in trust as gift for benefit of another
person or by proper declaration of legal owner of
property that he will hold it in trust for another's
benefit and does not require payment of any con-
sideration by the beneficiary. Elbert v. Waples-
Platter Co., Tex.Civ.App., 156 S.W.2d 146, 150, 151.
DONATOR. A donor; one who makes a gift,
(donatio.)
DONATOR NUNQUAM DESINIT POSSIDERE,
ANTEQUAM DONATORIUS INCIPIAT POSSI-
DERE. The donor never ceases to possess, until
the donee begins to possess. Bract. fol. 41b;
Dyer 281.
DONATORIUS. A donee; a person to whom a
gift is made; a purchaser. Bract. fol. 13, et seq.
DONATORY. The person on whom the king be-
stows his right to any forfeiture that has fallen
to the crown.
DONE. Distinguished from "made." "A 'deed
made' may no doubt mean an 'instrument made;'
but a 'deed done' is not an 'instrument done,'—it
is an 'act done;' and therefore these words, `made
and done,' apply to acts, as well as deeds." Lord
Brougham, 4 Bell, App.Cas. 38.
DONEC. Lat. As long as; while; until; within
a certain time.
DONEC PROBETUR IN CONTRARIUM. [Giv-
en] until proof to the contrary. 19 C.J. p. 445.
DONEE. One who is invested with a power of
appointment; the party executing a power; oth-
erwise called the "appointer." 4 Kent, Comm. 316.
One to whom a gift is made or a bequest given.
He to whom lands or tenements are given in tail.
Litt. § 57. In old English law. He to whom
lands were given; the party to whom a donatio
was made.
DONIS, STATUTE DE. See De Donis, the Stat-
ute.
DONNEUR D'AVAL. In French law. Guarantor
of negotiable paper other than by indorsement.
DONOR. The party conferring a power. 4 Kent,
Comm. 316. One who makes a gift. One who
creates a trust. Ulmer v. Fulton, 129 Ohio St.
323, 195 N.E. 557, 97 A.L.R. 1170. He who gives
lands or tenements to another in tail. Litt. § 57;
Termes de la Ley. In old English law. He by
whom lands were given to another; the party
making a donatio.
DONUM. Lat. In the civil law. A gift; a free
gift. Calvin.
The difference between donum and munus is said to be
that donum is more general, while munus is specific. Vi-
cat, Voc.Jur. ; Calvin.
DOOM. In Scotch law. Judicial sentence, or
judgment. The decision or sentence of a court
orally pronounced by an officer called a "derma-
ster" or "deemster." In modern usage, criminal
sentences still end with the words "which is pro-
nounced for doom."
DOOMSDAY-BOOK. See Domesday-Book.
DOOR. The place of usual entrance in a house, or
into a room in the house. State v. McBeth, 49
Kan. 584, 31 P. 145.
DOPE. Any thick liquid or pasty preparation, as
of opium for medicinal purposes, of grease for
a lubricant, etc., and in popular meaning signifies
opium derivative, ranging from harmless con-
coction to most powerful narcotics containing
opium as ingredient. Abbott v. Vinson, 230 Ky.
786, 20 S.W.2d 995, 996.
DORMANT. Literally, sleeping; hence inactive;
in abeyance; unknown; concealed; silent.
DORMANT CLAIM. One which is in abeyance.
DORMANT EXECUTION. One which a creditor
delivers to the sheriff with directions to levy only,
and not to sell, until further orders, or until a
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DOTE
junior execution is received. See Storm v. Woods,
11 Johns. (N.Y.) 110; Kimball v. Munger, 2 Hill
(N.Y.) 364.
DORMANT JUDGMENT. One which has not been
satisfied, nor extinguished by lapse of time, but
which has remained so long unexecuted that exe-
cution cannot now be issued upon it without first
reviving the judgment, or one which has lost its
lien on land from the failure to issue execution on
it or take other steps to enforce it within the time
limited by statute. 1 Black, Judgm., 2d Ed., § 462;
Draper v. Nixon, 93 Ala. 436, 8 So. 489; General
Electric Co. v. Hurd, C.C., 171 F. 984; Burlington
State Bank v. Marlin Nat. Bank, Tex.Civ.App., 207
S.W. 954, 956.
DORMANT PARTNER. See Partners.
DORMITORY. A sleeping room or building con-
taining a series of sleeping rooms, a sleeping
apartment capable of containing many beds, es-
pecially one connected with a college or boarding
school. Russell v. Trustees of Purdue University,
201 Ind. 367, 168 N.E. 529, 534, 65 A.L.R. 1384.
DORMIUNT ALIQUANDO LEGES, NUNQUAM
MORIUNTUR. 2 Inst. 161. The laws sometimes
sleep, never die.
DORSUM. Lat. The back. In dorso recordi, on
the back of the record. 5 Coke, 44b.
DORTURE. (Contracted from dormitor y .) A
dormitory of a convent; a place to sleep in.
DOS. In Roman . law. Dowry; a wife's marriage
portion; all that property which on marriage is
transferred by the wife herself or by another to
the husband with a view of diminishing the burden
which the marriage will entail upon him. It is of
three kinds. Profectitia dos is that which is de-
rived from the property of the wife's father or
paternal grandfather. That dos is termed adven-
titia which is not profectitia in respect to its
source, whether it is given by the wife from
her own estate or by the wife's mother or a third
person. It is termed receptitia dos when accom-
panied by a stipulation for its reclamation by the
constitutor on the termination of the marriage.
See Mackeld.Rom.Law, §§ 561, 563; Vicat; Cal-
vinus, Lex.; Du Cange ; 1 Washb.R.P. 147.
In old English law. The portion given to the
wife by the husband at the church door, in con-
sideration of the marriage; dower; the wife's
portion out of her deceased husband's estate in
case he had not endowed her. 1 Washb.R.P. 147;
1 Cruise, Dig. 152; Park, Dower.
DOS DE DOTE PETI NON DEBET. Dower ought
not to be demanded of dower. Co.Litt. 31; 4 Coke,
122b. A widow is not dowable of lands assigned
to another. woman in dower. 1 Hill.Real Prop.
135; 4 Dane, Abr. 671; 1 Washb.R.P. 209; Brooks
v. Everett, 13 Allen (Mass.) 459.
DOS RATIONABILIS. A reasonable marriage
portion. A reasonable part of her husband's es-
tate, to which every widow is entitled, of lands of
Black's Law Dictionary Revised 4th Ed.-37
which her husband may have endowed her on the
day of marriage. Co.Litt. 336. Dower, at com-
mon law. 2 Bl.Comm. 134.
DOS RATIONABILIS VEL LEGITIMA EST CU-
JUSLIBET MULIERIS DE QUOCUNQUE TEN-
EMENTO TERTIA PARS OMNIUM TERRARUM
ET TENEMENTORUM, QUIE VIR SUUS TENUIT
IN DOMINIO SUO UT DE FEODO, ETC. Co.Litt.
336. Reasonable or legitimate dower belongs to
every woman of a third part of all the lands and
tenements of which her husband was seised in
his demesne, as of fee, etc.
DOSSIER. Fr. A brief; a bundle of papers.
DOT. (A French word, adopted in Louisiana.)
The fortune, portion, or dowry which a woman
brings to her husband by the marriage. Buisson
v. Thompson, 7 Mart.La., N.S., 460.
DOTAGE. That feebleness of the mental facul-
ties which proceeds from old age. It is a diminu-
tion or decay of that intellectual power which
was once possessed. It is the slow approach of
death; of that irrevocable cessation, without hurt
or disease, of all the functions which once be-
longed to the living animal. The external func-
tions gradually cease; the senses waste away by
degrees; and the mind is imperceptibly visited by
decay. Owing's Case, 1 Bland (Md.) 389, 17 Am.
Dec. 311.
DOTAL. Relating to the dos or portion of a wo-
man; constituting her portion; comprised in her
portion.
DOTAL PROPERTY. In the civil law, in Louisi-
ana. Property which the wife brings to the hus-
band to assist him in bearing the expenses of the
marriage establishment. Extradotal property,
otherwise called "paraphernal property," is that
which forms no part of the dowry. Fleitas v.
Richardson, 13 Sup.Ct. 495, 147 U.S. 550, 37 L.Ed.
276. See, also, Community.
DOTALITIUM. In canon and feudal law. Dower.
Spelman, voc. "Doarium"; Calvin.; 2 Bl.Comm.
129. Used as early as A.D. 841.
DOTATION. The act of giving a dowry or por-
tion; endowment in general, including the en-
dowment of a hospital or other charitable institu-
tion.
DOTE, n. In Spanish law. The marriage por-
tion of a wife. White, New Recop. b. 1, tit. 6,
c. 1. The property which the wife gives to the
husband on account of marriage, or for the pur-
pose of supporting the matrimonial expenses. Id.
b. 1, tit. 7, c. 1, § 1; Schm.Civil Law, 75; Cutter
v. Waddingham, 22 Mo. 254; Hart v. Burnett, 15
Cal. 566; Las Partidas, 4. 11. 1; Escriche, Dic.
Raz. Dote.
DOTE, v. To be besotted, delirious, silly, or in-
sane. Gates v. Meredith, 7 Ind. 441.
DOTE ASSIGNANDA. A writ which lay for a
widow, when it was judicially ascertained that a
tenant to the king was seised of tenements in fee
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or fee-tail at the day of his death, and that he held
of the king in chief. In such case the widow might
come into chancery, and then make oath that she
would not marry without the king's leave, and
then she might have this writ. These widows
were called the "king's widows." Jacob; Holt-
house.
DOTE UNDE NIHIL HABET. A writ which lies
for a widow to whom no dower has been assigned.
3 Bl.Comm. 182. By 23 & 24 Vict. c. 126, an ordi-
nary action commenced by writ of summons has
taken its place; but it remains in force in the
United States, and under the designation of "dow-
er unde nihil habet" (see that title), I is the form
in common use for the recovery of dower at law.
1 Washb.R.P. 290; 4 Kent 63.
DOTI LEX FAVET; PREMIUM PUDORIS EST;
IDEO PARCATUR. Co.Litt. 31; Branch, Princ.
The law favors dower; it is the reward of chas-
tity; therefore let it be preserved.
DOTIS ADMINISTRATIO. Admeasurement of
dower, where the widow holds more than her
share, etc.
DOTISSA. A dowager.
DOUBLE. - Twofold; acting in two capacities or
having two aspects; multiplied by two. This term
has ordinarily the same meaning in law as in
popular speech. The principal compound terms
into which it enters are noted below.
DOUBLE ASSESSMENT. The imposition of same
tax, by same taxing power, upon same subject
matter. Aragon v. Empire Gold Mining & Milling
Co., 47 N.M. 299, 142 P.2d 539, 541.
DOUBLE ADULTERY. Adultery committed by
two persons each of whom is married to another
as distinguished from "single" adultery, where one
of the participants is unmarried. Hunter v. U. S.,
1 Pin. (Wis.) 91, 39 Am.Dec. 277.
DOUBLE AVAIL OF MARRIAGE. In Scotch law.
Double the ordinary or single value of a marriage.
Bell. See Duplex Valor Maritagii.
DOUBLE BOND. In Scotch law. A bond with a
penalty, as distinguished from a single bond. 2
Kames, Eq. 359.
DOUBLE COMPLAINT, DOUBLE QUARREL, or
DUPLEX QUERELA. A grievance made known
by a clerk or other person, to the archbishop of
the province, against the ordinary, for delaying or
refusing to do justice in some cause ecclesiastical,
as to give sentence, institute a clerk, etc. It is
termed a "double complaint," because it is most
commonly made against both the judge and him
at whose suit justice is denied or delayed; the
effect whereof is that the archbishop, taking no-
tice of the delay, directs his letters, under his au.-
thentical seal, to all clerks of his province, com-
manding them to admonish the ordinary, within
a certain number of days, to do the justice re-
quired, or otherwise to appear before him or his
official, and there allege the ca use of his delay;
and to signify to the ordinary that if he neither
perform the thing enjoined, nor appear nor show
cause against it, he himself, in his court of
audience, will forthwith proceed to do the jus-
tice that is due. Cowell.
DOUBLE COSTS. See Costs.
DOUBLE CREDITOR. One who has a lien on two
funds. Newby v. Fox, 90 Kan. 317, 133 P. 890, 47
L.R.A.(N.S.) 302.
DOUBLE DAMAGES. See Damages.
DOUBLE EAGLE. A gold coin of the United
States of the value of twenty dollars.
DOUBLE ENTRY. A system of mercantile book-
keeping, in which the entries in the day-book, etc.,
are posted twice into the ledger. First, to a per-
sonal account, that is, to the account of the per-
son with whom the dealing to which any given
entry refers has taken place; secondly, to an im-
personal account, as "goods." Mozley & Whitley.
DOUBLE FINE. In old English law. A fine sur
done grant et render was called a "double fine,"
because it comprehended the fine sur cognizance
de droit come ceo, etc., and the fine sur concessit.
2 Bl.Comm. 353.
DOUBLE FLEMISH BOND. An arrangement
whereby two stretchers are followed by a header
throughout the entire course, while on the succeed-
ing course the header is centered over the vertical
joint between the two stretchers of the course be-
low. Seglin Const. Co. v. State, Ct.C1., 22 N.Y.S.
2d 94, 96.
DOUBLE GLAZING. That by which two panes of
glass are set in each section of the window sash
instead of one. Johnson v. Olsen, 134 Minn. 53,
158 N.W. 805, 806.
DOUBLE HOUSE. A building having accommo-
dations for two families, divided vertically instead
of horizontally. Donnelly v. Spitza, 246 Mich. 284,
224 N.W. 396. Schwarzer v. Calcasieu Lumber Co.,
Tex.Civ.App., 176 S.W.2d 597, 599.
DOUBLE INSURANCE. Double insurance is
where divers insurances are made upon the same
interest in the same subject against the same risks
in favor of the same assured, in proportions ex-
ceeding the value. 1 Phill.Ins. §§ 359, 366. A
double insurance exists where the same person is
insured by several insurers separately in respect
to the same subject and interest. Insurance Co.
v. Gwathmey, 1 S.E. 209, 82 Va. 923; Lowell Mfg.
Co. v. Safeguard F. Ins. Co., 88 N.Y. 597; Chere-
waty v. Grangers Mut. Fire Ins. Co., 181 Md. 149,
28 A.2d 824, 825; Broune v. Franklin Fire Ins. Co.,
225 Mo.App. 665, 37 S.W.2d 977, 981.
DOUBLE JEOPARDY. Common-law and consti-
tutional prohibition against "double jeopardy" re-
fers not to the same offense eo nomine but to the
same crime, transaction or omission. Driggers v.
State, 137 Fla. 182, 188 So. 118, 120. A second
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prosecution after a first trial for the same offense.
People ex rel. Rozea v. Warden of Queens County
Jail, 43 N.Y.S.2d 211, 213.
DOUBLE PATENTING. The test respecting
"double patenting" is whether the claims of both
patents, when properly construed in the light of
the descriptions given, define essentially the same
things. Waterbury Buckle Co. v. G. E. Prentice
Mfg. Co., D.C.Conn., 294 F. 930, 937. Occurs only
when claims of two patents issued to one applicant
are the same. Scharf v. Weinfeld & Kahn, D.C.
N.Y., 31 F.Supp. 689, 692.
The imposition of the same tax, by the same tax-
ing power, upon the same subject matter. City
of Philadelphia v. Heinel Motors, 16 A.2d 761, 764,
142 Pa.Super. 493. People ex rel. Toman v. Ad-
vance Heating Co., 376 Ill. 158, 33 N.E.2d 206, 209,
210.
DOUBLE PLEA, DOUBLE PLEADING. See Du-
plicity; Plea; Pleading.
DOUBLE POSSIBILITY. A possibility upon a
possibility. 2 Bl.Comm. 170.
DOUBLE RECOVERY. Recovery which repre-
sents more than the total maximum loss which all
parties have sustained. Hindmarsh v. Sulpho Sa-
line Bath Co., 108 Neb. 168, 187 N.W. 806, 808.
DOUBLE RENT. In English law. Rent payable
by a tenant who continues in possession after the
time for which he has given notice to quit, until
the time of his quitting possession. St. 11 Geo.
II. c. 19.
DOUBLE TAX RULE. Collections made in taxa-
ble year on sales made in prior years, and which
had already been taxed in prior years. Hoover-
Bond Co. v. Denman, C.C.A.Ohio, 59 F.2d 909, 910.
DOUBLE TAXATION. The taxing of the same
item or piece of property twice to the same per-
son, or taxing it as the property of one person
and again as the property of another; but this
does not include the imposition of different taxes
concurrently on the same property (e. g., a city
tax and a school tax), nor the taxation of the
same piece of property to different persons when
they hold different interests in it or when it re-
presents different values in their hands, as when
both the mortgagor and mortgagee of property
are taxed in respect to their interests in it, or
when a tax is laid upon the capital or property
of a corporation and also upon the value of its
shares of stock in the hands of the separate stock-
holders. Cook v. Burlington, 59 Iowa, 251, 13 N.
W. 113, 44 Am.Rep. 679. "Double taxation" means
taxing twice for the same purpose in the same
year some of the property in the territory in
which the tax is laid without taxing all of it. Die-
fendorf v. Gallet, 51 Idaho 619, 10 P.2d 307, 315;
Amarillo-Pecos Valley Truck Lines v. Gallegos, 44
N.M. 120, 99 P.2d 447, 451.
DOUBLE USE. In patent law. An application of
a principle or process, previously known and ap-
plied, to some new use, but which does not lead to
a new result or the production of a new article.
De Lamar v. De Lamar Min. Co., C.C.Idaho, 110 F.
542.
DOUBLE VALUE. In English law. This is a
penalty on a tenant holding over after his land-
lord's notice to quit. By 4 Geo. II. c. 28, § 1, it is
enacted that if any tenant for life or years hold
over any lands, etc., after the determination of
his estate, after demand made, and notice in writ-
ing given, for delivering the possession thereof,
by the landlord, or the person having the rever-
sion or remainder therein, or his agent thereunto
lawfully authorized, such tenant so holding over
shall pay to the person so kept out of possession
at the rate of double the yearly value of the
lands, etc., so detained, for so long a time as the
same are detained. See Woodf. Landl. & Ten.
(12th Ed.) 717, et seq.
DOUBLE VOUCHER. This was when a common
recovery was had, and an estate of freehold was
first conveyed to any indifferent person against
whom the prcecipe was brought, and then he
vouched the tenant in tail, who vouched over the
common vouchee. For, if a recovery were had
immediately against a tenant in tail, it barred
only the estate in the premises of which he was
then actually seised, whereas, if the recovery
were had against another person, and the tenant
in tail were vouchee, it barred every latent right
and interest which he might have in the lands
recovered. 2 Bl.Comm. 359.
DOUBLE WASTE. When a tenant bound to re-
pair suffers a house to be wasted, and then un-
lawfully fells timber to repair it, he is said to
commit double waste. Co. Litt. 53.
DOUBLE WILL. A will in which two persons
join, each leaving his property and estate to the
other, so that the survivor takes the whole.
Evans v. Smith, 28 Ga. 98, 73 Am.Dec. 751.
DOUBLES. Letters-patent. Cowell.
DOUBT, v. To question or hold questionable.
Claussen v. State, 21 Wyo. 505, 133 P. 1055, 1056.
DOUBT, n. Uncertainty of mind; the absence
of a settled opinion or conviction; the attitude
of mind towards the acceptance of or belief in
a proposition, theory, or statement, in which the
judgment is not at rest but inclines alternately
to either side. Rowe v. Baber, 93 Ala. 422, 8 So.
865; Smith v. Railway Co., 143 Mo. 33, 44 S.W.
718; West Jersey Traction Co. v. Camden Horse
R. Co., 52 N.J.Eq. 452, 29 A. 333. An equipoise of
the mind arising from an equality of contrary
reasons. Ayliffe, Pand. 121.
Reasonable Doubt
This is a term often used, probably pretty well
understood, but not easily defined. It does not
mean a mere possible doubt, because everything
relating to human affairs, and depending on moral
evidence, is open to some possible or imaginary
doubt. It is that state of the case which, after
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the entire comparison and consideration of all the
evidence, leaves the minds of jurors in that con-
dition that they cannot say they feel an abiding
conviction to a moral certainty of the truth of
the charge. If upon proof there is reasonable
doubt remaining, the accused is entitled to the
benefit of it by an acquittal; for it is not suffi-
cient to establish a probability, though a strong
one, arising from the doctrine of chances, that
the fact charged is more likely to be true than
the contrary, but the evidence must establish the
truth of the fact to a reasonable and moral cer-
tainty,—a certainty that convinces and directs
the understanding and satisfies the reason and
judgment of those who are bound to act con-
scientiously upon it. This is proof beyond rea-
sonable doubt; because if the law, which mostly
depends upon considerations of a moral nature,
should go further than this, and require absolute
certainty, it would exclude circumstantial evi-
dence altogether. Egan v. U. S., 52 App.D.C. 384,
287 F. 958.
Proof "beyond a reasonable doubt" is not be-
yond all possible or imaginary doubt, but such
proof as precludes every reasonable hypothesis
except that which it tends to support. It is proof
"to a moral certainty,"—such proof as satisfies
the judgment and consciences of the jury, as
reasonable men, and applying their reason to the
evidence before them, that the crime charged has
been committed by the defendant, and so satisfies
them as to leave no other reasonable conclusion
possible. State v. Koski, 100 W.Va. 98, 130 S.E.
100, 101.
The difficulty of a satisfactory definition is discussed in
57 Am.L.Reg. 419, where C. J. Shaw's definition is criti-
cized and that in Corn. v. Costley, 118 Mass. 1, supra, is
suggested as better. And in Hopt v. Utah, 120 U.S. 430,
7 S.Ct. 614, 30 L.Ed. 708, it was approved as contrasted
with C. J. Shaw's definition.
A "reasonable doubt" is such a doubt as would
cause a reasonable and prudent man in the grav-
er and more important affairs of life to pause and
hesitate to act upon the truth of the matter charg-
ed. But a reasonable doubt is not a mere possi-
bility of innocence, nor a caprice, shadow, or
speculation as to innocence not arising out of the
evidence or the want of it. State v. Perkins, 21
N.M. 135, 153 P. 258, 259.
A "reasonable doubt" is such a doubt as an upright man
might entertain in an honest investigation after truth.
Peterson v. State, 47 Ga. 524(5); Lochamy v. State, 152
Ga. 235, 109 S.E. 497.
A "reasonable doubt" is one for which a reason can be
given. State v. Jefferson, 43 La.Ann. 995, 10 So. 199.
Contra: Abbott v. Territory, 20 Okl. 119, 94 P. 179, 16 L.
R. A. ,N. S. , 260, 129 Am. St. Rep. 818.
The term needs no definition. People v. Rogers, 324 Ill.
224, 154 N.E. 909, 913.
DOUBTFUL PAPER. "Slow" paper and "doubt-
ful paper" are not synonymous. American Nat.
Bank of Portsmouth v. Ames, 169 Va. 711, 194
S.E. 784, 793.
DOUBTFUL TITLE. One as to the validity of
which there exists some doubt, either as to mat-
ter of fact or of law; one which invites or ex-
poses the party holding it to litigation. Barrett
v. McMannis, 153 Kan. 420, 110 P.2d 774, 778;
Black v. American International Corporation, 264
Pa. 260, 107 A. 737, 739. Distinguished from a
"marketable" title, which is of such a character
that the courts will compel its acceptance by a
purchaser who has agreed to buy the property or
has bid it in at public sale. Herman v. Somers,(
158 Pa. 424, 27 A. 1050, 38 Am.St.Rep. 851.
DOUN, L. Fr. A gift. Otherwise written "don"
and "done." The thirty-fourth chapter of Britton
is entitled "De Douns."
DOVE. Doves are animals ferce naturce, and not
the subject of larceny unless they are in the own-
er's custody. Corn. v. Chace, 9 Pick., Mass. 15, 19
Am.Dec. 348; Ruckman v. Outwater, 28 N.J.Law
581.
DOVETAIL. A structure in the form of a tenon
having oppositely-flared edges similar in shape to
the tail of a bird. Cheney Co. v. Cunningham,
D.C.Pa., 37 F.Supp. 224, 226.
DOWABLE. Subject to be charged with dower;
as dowable lands.
Entitled or entitling to dower. Thus, a dowable
interest in lands is such as entitles the owner to
have such lands charged with dower.
DOWAGER. A widow who is endowed, or who
has a jointure in lieu of dower. In England, this
is a title or addition given to the widows of
princes, dukes, earls, and other noblemen, to dis-
tinguish them from the wives of the heirs, who
have right to bear the title. 1 Bl.Comm. 224.
DOWAGER—QUEEN. The widow of the king.
As such she enjoys most of the privileges belong-
ing to her as queen consort. It is not treason to
conspire her death or violate her chastity, be-
cause the succession to the crown is not thereby
endangered. No man, however, can marry her
without a special license from the sovereign, on
pain of forfeiting his lands or goods. 1 Bl.Comm.
233.
DOWER. The provision which the law makes
for a widow out of the lands or tenements of her
husband, for her support and the nurture of her
children. Co. Litt. 30a; 2 Bl.Comm. 130; In re
Miller's Estate, 44 N.M. 214, 100 P.2d 908, 911. A
species of life-estate which a woman is, by law,
entitled to claim on the death of her husband, in
the lands and tenements of which he was seised
in fee during the marriage, and which her issue,
if any, might by possibility have inherited. 1
Steph.Comm. 249; 2 Bl.Comm. 129; Cruise, Dig.
tit. 6; 2 Crabb, Real Prop. p. 124, § 1117; 4 Kent,
Comm. 35. See Inchoate Dower.
"Dower" is the life estate to which every married woman
is entitled on death of her husband, intestate, or, in case
she dissents from his will, one-third in value of all lands
of which husband was beneficially seized in law or in fact.
at any time during coverture. McGehee v. McGehee, 189 N.
C. 558, 127 S.E. 684, 687. McLawhorn v. Smith, 211 N.C.
513, 191 S.E. 35, 38, 110 A.L.R. 980.
The term, both technically and in popular ac-
ceptation, has reference to real estate exclusive-
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ly. Shackelford v. Shackelford, 181 Va. 869, 27
S.E.2d 354, 359.
"Dower," in modern use, is distinguished from "dowry."
The former is a provision for a widow on her husband's
death ; the latter is a bride's portion on her marriage.
Wendler v. Lambeth, 163 Mo. 428, 63 S.W. 684.
DOWER AD OSTIUM ECCLESLE. Dower at
the church door or porch. An ancient kind of
dower in England, where a man, (being tenant in
fee-simple, of full age,) openly at the church door,
where all marriages were formerly celebrated,
after affiance made and troth plighted between
them, endowed his wife with the whole of his
lands, or such quantity as he pleased, at the same
time specifying and ascertaining the same. Litt.
§ 39; 2 Bl.Comm. 133.
DOWER BY COMMON LAW. The ordinary kind
of dower in English and American law, consisting
of a life interest in one-third of the lands of which
the husband was seised in fee at any time during
the coverture. Litt. § 36; 2 Bl.Comm. 132; 2
Steph.Comm. 302; 4 Kent, Comm. 35.
DOWER BY CUSTOM. A kind of dower in Eng-
land, regulated by custom, where the quantity
allowed the wife differed from the proportion of
the common law; as that the wife should have
half the husband's lands; or, in some places, the
whole; and, in some, only a quarter. 2 Bl.Comm.
132; Litt. § 37.
DOWER DE LA PLUS BELLE (DE LA PLUIS
BEALE). L. Fr. Dower of the fairest [part.]
A species of ancient English dower, incident to
the old tenures, where there was a guardian in
chivalry, and the wife occupied lands of the heir
as guardian in socage. If the wife brought a
writ of dower against such guardian in chivalry,
he might show this matter, and pray that the
wife might be endowed de la plus belle of the
tenement in socage. Litt. § 48. This kind of
dower was abolished with the military tenures.
2 Bl.Comm. 132.
DOWER EX ASSENSU PATRIS. Dower by the
father's assent. A species of dower ad ostium
ecclesice, made when the husband's father was
alive, and the son, by his consent expressly giv-
en, endowed his wife with parcel of his father's
lands. Litt. § 40; 2 Bl.Comm. 133; Grogan v.
Garrison, 27 Ohio St. 61.
DOWER UNDE NIIIIL HABET. A writ of right
which lay for a widow to whom no dower had
been assigned.
DOWLE STONES. Stones dividing lands, etc.
Cowell.
DOWMENT. In old English law. Endowment;
dower. Grogan v. Garrison, 27 Ohio St. 61.
DOWNWARD COURSE. Term "dip" is miners'
word synonymous with expression "downward
course" in mining act, and means direction of
ore vein or lode in its descent into earth at right
angles to its strike or course. 30 U.S.C.A. § 26.
Brugger v. Lee Yim, 12 Cal.App.2d 38, 55 P.2d
564, 570.
DOWRESS. A woman entitled to dower; a ten-
ant in dower. 2 P.Wms. 707.
DOWRY. The property which a woman brings
to her husband in marriage; now more common-
ly called a "portion."
This word expresses the proper meaning of the "dos" of
the Roman, the "dot" of the French, and the "dote" of the
Spanish, law, but is a very different thing from "dower,"
with which it has sometimes been confounded. See Co.Litt.
31; Dig. 23, 3, 76; Code 5, 12, 20; Buard v. De Russy, 6
Rob., La., 111; Gates v. Legendre, 10 Rob., La., 74; Cut-
ter v. Waddingham, 22 Mo. 254.
By dowry, in the Louisiana Civil Code (see ar-
ticle 2337), is meant the effects which the wife
brings to the husband to support the expenses
of marriage. It is given to the husband, to be
enjoyed by him so long as the marriage shall
last, and the income of it belongs to him. He
alone has the administration of it during mar-
riage, and his wife cannot deprive him of it. The
real estate settled as dowry is inalienable during
marriage, unless the marriage contract contains
a stipulation to the contrary. De Young v. De
Young, 6 La.Ann. 786.
DOYLE RULE. A formula for computing the
board measure from the dimensions of a log.
Peter v. Owl Bayou Cypress Co., 137 La. 1067, 69
So. 840, 841. The rule is to deduct four inches
from the diameter of the log, as an allowance for
slab, square one-quarter of the remainder, and
multiply the result by the length of the log in
feet. Morrison v. Pickrell Walnut Co., 199 Ill.
App. 175, 176.
DOZE. To slumber or sleep lightly. St. Paul
Fire & Marine Ins. Co. of St. Paul, Minn., v.
Kendle, 163 Ky. 146, 173 S.W. 373, 374.
DOZEIN, L. Fr. Twelve; a person twelve years
of age. St. 18 Edw. II.; Barring. Ob. St. 208.
DOZEN PEERS. Twelve peers assembled at the
instance of the barons, in the reign of Henry III.,
to be privy counselors, or rather conservators of
the kingdom.
DR. An abbreviation for "doctor;" also, in com-
mercial usage, for "debtor," indicating the items
or particulars in a bill or in an account-book
chargeable against the person to whom the bill is
rendered or in whose name the account stands,
as opposed to "Cr." ("Credit" or "creditor"),
which indicates the items for which he is given
credit. Jaqua v. Shewalter, 10 Ind.App. 234, 37
N.E. 1072.
DRACHMA. A term employed in old pleadings
and records, to denote a groat. Townsh. P. 180.
An Athenian silver coin, of the value of about
fifteen cents.
DRACO REGIS. The standard, ensign, or mili-
tary colors borne in war by the ancient kings of
England, having the figure of a dragon painted
thereon.
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DRACONIAN LAWS. A code of laws prepared
by Draco, the celebrated lawgiver of Athens.
These laws were exceedingly severe, and the term
is now sometimes applied to any laws of unusual
harshness.
DRAFF. Waste matter, sweepings, refuse, lees,
or dregs. In weighing commodities the term sig-
nifies dust and dirt, and not what is generally
meant by "draught" or "draft" (q. v.). 28 C.J.S.
p. 227.
DRAFT. The common term for a bill of ex-
change; as being drawn by one person on an-
other. Hinnemann v. Rosenback, 39 N.Y. 100;
Ennis v. Coshocton Nat. Bank, 27 Ga.App. 479,
108 S.E. 811.
An order for the payment of money drawn
by one person on another. It is said to be a no-
men generalissimum, and to include all such or-
ders. Wilson v. Buchenau, D.C.Cal., 43 F.Supp.
272, 275.
The term includes a cashier's check, People v. Miller, 278
Ill. 490, 116 N.E. 131, 138 L.R.A.1917E, 797; Advance-Rum-
ely Thresher Co. v. Hess, 85 Mont. 293, 279 P. 236, 237;
but a draft is distinguishable from a cashier's check in,
that a draft is a bill of exchange payable on demand pur-
porting to be drawn on deposit while a cashier's check is
a primary obligation of a bank which issues it and con-
stitutes its written promise to pay it on demand. In re
Bank of U. S., 277 N.Y.S. 96, 243 App.Div. 287. It is dis-
tinguished from "check" by the fact that in a draft the
drawer is a bank, while in the ordinary check the drawer
is an individual. Leach v. Mechanics' Say . Bank, 202 Iowa,
899, 211 N.W. 506, 508, 50 A.L.R. 388.
A tentative, provisional, or preparatory writ-
ing out of any document (as a will, contract,
lease, etc.) for purposes of discussion and correc-
tion, which is afterwards to be copied out in its
final shape.
Also, a small arbitrary deduction or allowance
made to a merchant or importer, in the case of
goods sold by weight or taxable by weight, to
cover possible loss of weight in handling or from
differences in scales. Marriott v. Brune, 9 How.
633, 13 L.Ed. 282; Seeberger v. Mfg. Co., 15 S.
Ct. 583, 157 U.S. 183, 39 L.Ed. 665; Napier v.
Barney, 17 Fed.Cas. 1149.
A draft in stockyard parlance is all those ani-
mals in one consignment weighed as a single
sales or purchase classification. Acker v. U. S., D.
C.Ill., 12 F.Supp. 776, 780.
DRAFTSMAN. Any , one who draws or frames
a legal document, e. g., a will, conveyance, plead-
ing, etc.
In the marine engineering profession, any of
various men who design the several parts of ves-
sels and other machinery in the different depart-
ments. Ex parte Aird, D.C.Pa., 276 F. 954, 956.
DRAG. In a technical sense, the lower part of
the mold for casting iron pipe. Casey-Hedges Co.
v. Gates, 139 Tenn. 282, 201 S.W. 760, 761.
DRAGO DOCTRINE. The principle asserted by
Luis Drago, Minister of Foreign Affairs of the
Argentine Republic, in a letter to the Argentine
Minister at Washington, December 29, 1902, that
the forcible intervention of states to secure the
payment of public debts due to their citizens from
foreign states is unjustifiable and dangerous to
the security and peace of the nations of South
America. The subject was brought before the
Conference by the United States and a Conven-
tion was adopted in which the contracting pow-
ers agreed, with some restrictive conditions, not
to have recourse to armed force for the recov-
ery of contract debts claimed by their nationals
against a foreign state. Higgins, 184-197. See
Calvo Doctrine.
DRAGOMAN. An interpreter employed in the
east, and particularly at the Turkish court.
DRAIN, v. To conduct water from one place to
another, for the purpose of drying the former.
To make dry; to draw off water; to rid land of
its superfluous moisture by adapting or improv-
ing natural water courses and supplementing
them, when necessary, by artificial ditches. Peo-
ple v. Parks, 58 Cal. 639.
To "drain," in its larger sense, includes not only the
supplying of outlets and channels to relieve the land from
water, but also the provision of ditches, drains, and
embankments to prevent water from accumulating. Holt v.
State, Tex.Civ.App., 176 S.W. 743, 746; In re Mississippi
and Fox River Drainage Dist., 270 Mo. 157, 192 S.W. 727,
731; Pioneer Real Estate Co. v. City of Portland, 119
Or. 1, 247 P. 319, 323.
DRAIN, n. A trench or ditch to convey water
from wet land; a channel through which water
may flow off.
The word has no technical legal meaning. Any hollow
space in the ground, natural or artificial, where water is
collected and passes off, is a ditch or drain. Sherrod v.
Battle, 154 N.C. 345, 70 S.E. 834, 836.
The term may be synonymous with "water course."
Green v. County Com'rs of Harbine, 74 Ohio St. 318, 78
N.E. 521, 522.
"Sewers" differ from "drains" only in that the former
are in cities, and generally covered over, while the latter
are in rural communities, and open. Barton v. Drainage
Dist. No. 30, 174 Ark. 173, 294 S.W. 418, 419. But "drains"
may sometimes include sewers. City of Charlestown, 170
Ill. 336, 48 N.E. 985, 986. See, generally, Mound City Land
& Stock Co. v. Miller, 170 Mo. 240, 70 S.W. 721, 724, 6
L.R.A. 190, 94 Am.St.Rep. 727.
Also, sometimes, the easement or servitude (ac-
quired by grant or prescription) which consists
in the right to drain water through another's
land. See 3 Kent, Comm. 436; 7 M. & G. 354.
DRAINAGE DISTRICT. A political subdivision
of the state, created for the purpose of draining
and reclaiming wet and overflowed land, as well
as to preserve the public health and convenience.
Commander v. Board of Com'rs of Buras Levee
Dist., 202 La. 325, 11 So.2d 605, 607.
DRAM. In common parlance, a drink of some
substance containing alcohol; something which
can produce intoxication. Lacy v. State, 32 Tex.
228. See Wright v. People, 101 Ill. 134.
DRAM-SHOP. A drinking saloon, where liquors
are sold to be drunk on the premises. Com. v.
Marzynski, 21 N.E. 228, 149 Mass. 68. A place
where spirituous liquors are sold by the dram or
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DRENCHES
the drink; a barroom. McCormick v. Brennan,
224 Ill.App. 251, 254.
DRAM SHOP ACT. A civil damage statute di-
rected at the operators of dram shops and at own-
ers of buildings and premises wherein the opera-
tors are tenants. It permits an action to be
brought by a person injured by an intoxicated per-
son against one who contributed to the intoxica-
tion. See 1958 Univ. of Il1.Law Forum, No. 2 "Ac-
tions under the Illinois Dram Shop Act," and
John A. Appleman, "Civil liability under the Il-
linois Dram Shop Act," 34 Ill.L.Rev. 30 (1939),
Wanna v. Miller (N.Dak.) 136 N.W.2d 563 (1965).
DRAMA. A term descriptive of any represen-
tation in which a story is told, a moral conveyed,
or the passions portrayed, whether by words and
actions combined, or by mere actions alone. Asa
G. Candler, Inc., v. Georgia Theater Co., 148 Ga.
188, 96 S.E. 226, 227, L.R.A.1918F, 389. A story
put in action. Zucarro v. State, 82 Tex.Cr.R. 1,
197 S.W. 982, 985, L.R.A.1918B, 354.
DRAMATIC COMPOSITION. In copyright law.
A literary work setting forth a story, incident,
or scene from life, in which, however, the nar-
rative is not related, but is represented by a dia-
logue and action; may include a descriptive poem
set to music, or a pantomime, but not a composi-
tion for musical instruments alone, nor a mere
spectacular exhibition or stage dance. Martinetti
v. McGuire, 16 Fed.Cas. 920; Fuller v. Bemis, C.
C.N.Y., 50 Fed. 926.
DRAMATIC WORK. Photoplay is "dramatic
work" within Copyright Law. Metro-Goldwyn-
Mayer Distributing Corporation v. Bijou Theatre
of Holyoke, D.C.Mass., 3 F.Supp. 66, 73; contra.
Metro-Goldwyn-Mayer Distributing Corporation v.
Bijou Theatre, D.C.Mass., 50 F.2d 908, 909.
DRAUGHT. Act of drawing, or the thing drawn;
act of moving loads by drawing as by beasts of
burden, and the like; and the term may be used
in the sense of pull. Jackson Floor Covering v.
Maryland Casualty Co. of Baltimore, 117 N.J.L.
401, 189 A. 84, 85.
DRAW, n. A movable section of a bridge, which
may be raised up or turned to one side, so as to
admit the passage of vessels. Gildersleeve v.
Railroad Co., D.C.N.Y., 82 Fed. 766; A depression
in the surface of the earth, in the nature of a
shallow ravine or gulch, sometimes many miles
in length, forming a channel for the escape of
rain and melting snow draining into it from ei-
ther side. Railroad Co. v. Sutherland, 44 Neb.
526. 62 N.W. 859.
DRAW, v. To draw a firearm or deadly weapon
is to point it intentionally. State v. Boyles, 24 N.
M. 464, 174 P. 423. To draw a bead on; to bring
into line with the bead or fore sight of a rifle and
the hind sight; to aim at. Hatfield v. Common-
wealth, 200 Ky. 243, 254 S.W. 748, 749.
To prepare a draft; to compose and write out
in due form, as, a deed, complaint, petition, me-
morial, etc. Winnebago County State Bank v.
Hustel, 119 Iowa 115, 93 N.W. 70.
To draw a jury is to select the persons who
are 'to compose it, either by taking their names
successively, but at hazard, from the jury box,
or by summoning them individually to attend the
court. Smith v. State, 34 So. 168, 136 Ala. 1.
In old criminal practice. To drag (on a hurdle)
to the place of execution. Anciently no hurdle
was allowed, but the criminal was actually
dragged along the road to the place of execution.
A part of the ancient punishment of traitors was
to be thus drawn. 4 Bl.Comm. 92, 377.
In mercantile law. To draw a bill of exchange
is to write (or cause it to be written) and sign
it; to make, as a note. Knox v. Rivers Bros., 17
Ala.App. 630, 88 So. 33, 34.
In fiscal law and administration. To take out
money from a bank, treasury, or other deposi-
tory in the exercise of a lawful right and in a
lawful manner. But to "draw a warrant" is not
to draw the money; it is to make or execute the
instrument which authorizes the drawing of the
money. Brown v. Fleischner, 4 Or. 149.
DRAWBACK. In the customs laws, an allow-
ance made by the government upon the duties due
on imported merchandise when the importer, in-
stead of selling it here, re-exports it; or the re-
funding of such duties if already paid. This al-
lowance amounts, in some cases, to the whole of
the original duties; in others, to a part only.
See 19 U.S.C.A. § 1313.
DRAWEE. A person to whom a bill of exchange
is addressed, and who is requested to pay the
amount of money therein mentioned.
DRAWER. The person drawing a bill of ex-
change and addressing it to the drawee. Boaten-
reiter v. Williams, 58 Ga.App. 635, 199 S.E. 558,
559.
DRAWING. In patent law. A representation of
the appearance of material objects by means of
lines and marks upon paper, cardboard, or other
substance. Ampt v. Cincinnati, 8 Ohio Dec. 628;
35 U.S.C.A. § 34.
DRAWLATCHES. Thieves; robbers. Cowell.
DRAYAGE. A charge for the transportation of
property in wheeled vehicles, such as drays, wa-
gons, and carts. Soule v. San Francisco Gas-
light Co., 54 Cal. 242.
DREDGE. Formerly applied to a net or drag for
taking oysters; now a machine for cleansing
canals and rivers. To "dredge" is to gather or
take with a dredge, to remove sand, mud, and
filth from the beds of rivers, harbors, and canals,
with a dredging machine. 15 Can.L.T. 268.
DREIT-DREIT. Droit-droit. (Also written with-
out the hyphen.) Double right. A union of the
right of possession and the right of property. 2
Bl.Comm. 199.
DRENCHES, or DRENGES. In Saxon law. Ten-
ants in capite. They are said to be such as, at the
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DRENGAGE
coming of William the Conqueror, being put out
of their estates, were afterwards restored to them,
on their making it appear that they were the true
owners thereof, and neither in auxilio or consilio
against him. Spelman.
DRENGAGE. The tenure by which the drenches,
or drenges, held their lands. A variety of feudal
tenure by serjeanty (q. v.), often occurring in
the northern counties of England, involving a
kind of general service. Vinogradoff, Engl.Soc. in
Eleventh Cent. 62. Little is known of it; 3
Holdsw.Hist.E.L. 132.
DRESSING. In the meat packing industry. The
freeing of the carcass of hair, scurf, toenails,
evisceration of the carcass, the cleaning and
separation of the warm fancy meats, and the
placing of these in the coolers. Likewise, all the
operations performed upon the carcasses after
slaughtering and until they go to the coolers, are
included. The cleaning of casings is considered
as "dressing", as is the grading of casings, if the
grading takes place prior to salting. The removal
of hides, pelts, bones, fats, blood and other ma-
terials from the dressing floor is also considered
as "dressing" in the meat packing industry. Flem-
ing v. Swift & Co., D.C.I11., 41 F.Supp. 825, 828.
Freeing of body from feathers and matters not
suitable for consumption. Shain v. Armour & Co.,
D.C.Ky., 50 F.Supp. 907, 911.
DRIER. In the paper-making trade, a hot drum.
Tompkins-Hawley-Fuller Co. v. Holden, C.C.A.N.Y.,
273 F. 424, 430.
DRIFT, v. To float or be driven along by or as
a current of water or air; to accumulate in heaps
by the force of the wind; to be driven into heaps,
as snow or sand drifts. State ex rel. Perkins v.
Hardwick, 144 Kan. 3, 57 P.2d 1231, 1234.
DRIFT, n. In mining law. An underground
passage driven horizontally along the course of
a mineralized vein or approximately so. Distin-
guished from "shaft," which is an opening made
at the surface and extending downward into the
earth vertically, or nearly so, upon the vein or
intended to reach it; and from "tunnel," which is
a lateral or horizontal passage underground in-
tended to reach the vein or mineral deposit, where
drifting may begin. Jurgenson v. Diller, 114 Cal.
491, 46 P. 610, 55 Am.St.Rep. 83; Empire Star
Mines Co. v. Butler, 62 Cal.App.2d 49, 145 P.2d
49, 63.
In old English law. A driving, especially of
cattle.
DRIFT NET. A net with both ends free to drift
with the current;—distinguished from a "set net,"
which is one fastened at one or both ends, so the
whole net cannot drift with the current. State v.
Blanchard, 96 Or. 79, 189 P. 421, 427.
DRIFT-STUFF. This term signifies, not goods
which are the subject of salvage, but matters float-
ing at random, without any known or discoverable
ownership, which, if cast ashore, will probably
never be reclaimed, but will, as a matter of course,
accrue to the riparian proprietor. Watson v.
Knowles, 13 R.I. 641.
DRIFTS OF THE FOREST. A view or examina-
tion of what cattle are in a forest, chase, etc.,
that it may be known whether it be surcharged or
not; and whose the beasts are, and whether they
are commonable. These drifts are made at certain
times in the year by the officers of the forest,
when all cattle are driven into some pound or
place inclosed, for the before-mentioned purposes,
and also to discover whether any cattle of stran-
gers be there, which ought not to common. Man-
wood, p. 2, c. 15.
DRIFTING. The natural tendency of wells drilled
in search of oil or gas to deflect from vertical.
Gliptis v. Fifteen Oil Co., 204 La. 896, 16 So.2d 471,
476.
DRIFTLAND, DROFLAND, or DRYFLAND. A.
Saxon word, signifying a tribute or yearly pay-
ment made by some tenants to the king, or their
landlords, for driving their cattle through a manor
to fairs or markets. Cowell.
DRIFTWAY. A road or way over which cattle are
driven. Selw.N.P. 1037; Woolr.Ways 1; 2 Hilliard,
Abr.Prop. 33; Smith v. Ladd, 41 Me. 314; Swen-
sen v. Marino, 306 Mass. 582, 29 N.E.2d 15, 18, 130
A.L.R. 763.
DRILL AND COMPLETE A WELL. Term "dell
and complete a well" to known oil sand for pur-
pose of testing and operating for oil production
means cleaning out of well, so that sand reached
may give flow of production. Arnold v. Adams,
147 Okl. 57, 294 P. 142, 147.
DRILLED. Completed;—said of oil wells and the
like. Texas Pac. Coal & Oil Co. v. Harris, Tex.
Civ.App., 230 S.W. 237, 238. The term implies
progress in the work, and not mere use of the
drill. Texas Const. Co. v. Dearing, Tex.Civ.App.,
296 S.W. 1112, 1115.
DRILLING IN. Drilling, as an oil well, after the
casing has been set. Smith & Hayslip v. Wilcox
Oil Co, Tex.Civ.App., 253 S.W. 641, 642.
DRINCLEAN. Sax. A contribution of tenants, In
the time of the Saxons, towards a potation, or ale,
provided to entertain the lord, or his steward.
Cowell. See Cervisarii.
DRINK. To use liquid as a beverage to slake
thirst. State v. Woodward, 41 Idaho 353, 238 P.
525, 527. See, also, Merle v. Beifeld, 194 Ill.App.
364, 385. Specifically, to use intoxicating liquors.
DRINKABLE. Capable of being drunk; fit to
drink. McChristy v. State, 138 Tex.Cr.R. 26, 133
S.W.2d 976, 977.
DRINKING MAN. One who takes a drink of
liquor when he chooses, even though it may be so
infrequent as to produce no harmful effect on his
health. Tuepker v. Sovereign Camp, W. 0. W.,
Mo.App., 226 S.W. 1002, 1003.
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DROIT
DRINKING—SHOP. A place where intoxicating
liquors are sold, bartered, or delivered to be drunk
on the premises. Portland v. Schmidt, 13 Or. 17,
6 Pac. 221.
DRIP. A species of easement or servitude obli-
gating one man to permit the water falling from
another man's house to fall upon his own land.
3 Kent, Comm. 436; 1 Rolle, Abr. 107. A mecha-
nism which hastens the condensation of moisture
and collects the liquid in a reservoir from which
it is drained into a storage tank. Slater v. United
Fuel Gas Co., 126 W.Va. 127, 27 S.E.2d 436, 437.
DRIVE, n. An underground process. Diller v. St.
Louis, S. & P. R. R., 304 Ill. 373, 136 N.E. 703, 704.
DRIVE, v. To impel motion and quicken. Bosse
v. Marye, 80 Cal.App. 109, 250 P. 693, 696. To com-
pel, urge, or move in some manner or direction.
Howell v. J. Mandelbaum & Sons, 160 Iowa 119,
140 N.W. 397, 398, Ann.Cas.1915D, 349. To con-
trol the motive power, as of a motor vehicle.
Grant v. Chicago, M. & St. P. Ry. Co., 78 Mont. 97,
252 P. 382, 385. To go by, or pass in, a carriage
whose course is wholly or partly under one's di-
rection. Federal Life Ins. Co. v. McAleer, 161
Old. 251, 17 P.2d 681, 683.
DRIVE—IT—YOURSELF CARS. A term used to
describe automobiles which their owners, as a
regular business, rent out for hire without fur-
nishing drivers. City of Rockford v. Nolan, 316
60, 146 N.E. 564. See, also, Welch v. Hartnett,
127 Misc. 221, 215 N.Y.S. 540; White v. Holmes,
89 Fla. 251, 103 So. 623; Blashfield's Cyclopedia of
Automobile Law, p. 2802.
DRIVER. One employed in conducting or operat-
ing a coach, carriage, wagon, or other vehicle,
with horses, mules, or other animals, or a bicycle,
tricycle, or motor car, though not a street railroad
car. A person actually doing driving, whether em-
ployed by owner to drive or driving his own ve-
vehicle. Wallace v. Woods, 340 Mo. 452, 102 S.W.2d
91, 97.
DRIVING. To urge forward under guidance, com-
pel to go in a particular direction, urge onward,
and direct the course of. Mould v. Travelers' Mut.
Casualty Co., 219 Iowa 16, 257 N.W. 349.
DROFDEN, or DROFDENNE. A grove or woody
place where cattle are kept. Jacob.
DROFLAND. Sax. A quit rent, or yearly pay-
ment, formerly made by some tenants to the king,
or their landlords, for driving their cattle through
a manor to fairs or markets. Cowell; Blount.
DROIT. In French law. Right, justice, equity,
law, the whole body of law; also a right. Toullier,
n. 96; Pothier, Droit.
This term exhibits the same ambiguity which is discov-
erable in the German equivalent, "recht" and the English
word "right." On the one hand, these terms answer to the
Roman "jus," and thus indicate law in the abstract, con-
sidered as the foundation of all rights, or the complex of
underlying moral principles which impart the character of
justice to all positive law, or give it an ethical content.
Taken in this abstract sense, the terms may be adjectives,
in which case they are equivalent to "just," or nouns, In
which case they may be paraphrased by the expressions
"justice," "morality," or "equity." On the other hand,
they serve to point out a right; that is, a power, privilege,
faculty, or demand, inherent in one person, and incident
upon another. In the latter signification, droit (or recht or
right) is the correlative of "duty" or "obligation." In the
former sense, it may be considered as opposed to wrong,.
injustice, or the absence of law. Droit has the further
ambiguity that it is sometimes used to denote the existing
body of law considered as one whole, or the sum total of
a number of individual laws taken together. See Jus;
Recht; Right.
In old English law. Law; right; a writ of
right. Co.Litt. 158b.
A person was said to have droit droit, plurimum June,
and plurimum possessionis, when he had the freehold, the
fee, and the property in him. Crabb, Hist.E.L. 406.
—Autre droit. The right of another.
DROITS CIVILS. This phrase in French law de-
notes private rights, the exercise of which is in-
dependent of the status (qualite) of citizen. For-
eigners enjoy them; and the extent of that en-
joyment is determined by the principle of reci-
prodty. Conversely, foreigners may be sued on
contracts made by them in France. Brown.
DROIT—CLOSE. An ancient writ, directed to the
lord of ancient demesne on behalf of those of his
tenants who held their lands and tenements by
charter in fee-simple, in fee-tail, for life, or in
dower. Fitzh.Nat.Brev. 23.
DROIT COMMON. The common law. Lift. § 213;
Co.Litt. 142a.
DROIT COUTUMIER. Common law.
DROIT D'ACCESSION. That property which Is
acquired by making a new species out of the ma-
terial of another. It is equivalent to the Roman
"specifi,catio." This subject is treated of in the
Code Civil de Napoleon, arts. 565, 577; Merlin,
Repert. Accession; Malleville's Discussion, art.
565.
DROIT D'ACCROISSEMENT. The right which
an heir or legatee has of combining with his own
interest in a succession the interest of a coheir or
colegatee who either refuses to or cannot accept
his interest. Houghton v. Brantingham, 86 Conn.
630, 86 A. 664, 667.
DROIT D'AUBAINE. A rule by which all the
property of a deceased foreigner, whether movable
or immovable, was confiscated to the use of the
state, to the exclusion of his heirs, whether claim-
ing ab intestato or under a will of the deceased.
Finally abolished in 1819. Opel v. Shoup, 100 Iowa
407, 69 N.W. 560, 37 L.R.A. 583.
DROIT D'EXECUTION. The right of a stockbro-
ker to sell the securities bought by him for ac-
count of a client, if the latter does not accept de-
livery thereof. The same expression is also ap-
plied to the sale by a stockbroker of securities de-
posited with him by his client, in order to guaranty
the payment of operations for which the latter has
given instructions. Arg.Fr.Merc.Law, 557.
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DROIT
DROIT DE BRIS. A right formerly claimed by
the lords of the roasts of certain parts of France,
to shipwrecks, by which not only the property, but
the persons of those who were cast away, were
confiscated for the prince who was lord of the
coast. Otherwise called "droit de bris sur le nau-
frage." This right prevailed chiefly in Bretagne,
and was solemnly abrogated by Henry III. as
duke of Normandy, Aquitaine, and Guienne, in a
charter granted A. D. 1226, preserved among the
rolls at Bordeaux.
DROIT DE DETRACTION. A tax upon the re-
moval from one state or country to another of
property acquired by succession or testamentary
disposition; it does not cover a tax upon the suc-
cession to or transfer of property. Moody v. Ha-
gen, 162 N.W. 704, 708, 36 N.D. 471, L.R.A.1918F,
947, Ann.Cas.1918A, 933. Cf. Duties of Detraction.
DROIT DE GARDE. In French feudal law. Right
of ward. The guardianship of the estate and per-
son of a noble vassal, to which the king, during his
minority, was entitled. Steph.Lect. 250.
DROIT DE GITE. In French feudal law. The
duty incumbent on a roturier, holding lands within
the royal domain, of supplying board and lodging
to the king and to his suite while on a royal prog-
ress. Steph.Lect. 351.
DROIT DE GREFFE. In old French law. The
right of selling various offices connected with the
custody of judicial records or notarial acts. Steph.
Lect. 354. A privilege of the French kings.
DROIT DE MAITRISE. In old French law. A
charge payable to the crown by any one who, after
having served his apprenticeship in any commer-
cial guild or brotherhood, sought to become a
master workman in it on his own account. Steph.
Lect. 354.
DROIT DE NAUFRAGE. The right of a seig-
neur, who owns the seashore, or the king, when a
vessel is wrecked, to take possession of the wreck-
age and to kill the crew or sell them as slaves.
14 Yale L.Jour. 129.
DROIT DE PRISE. In French feudal law. The
duty (incumbent on a roturier) of supplying to
the king on credit, during a certain period, such
articles of domestic consumption as might be re-
quired for the royal household. Steph.Lect. 351.
DROIT DE QUINT. In French feudal law. A
relief payable by a noble vassal to the king as his
seigneur, on every change in the ownership of his
fief. Steph.Lect. 350.
DROIT DE SUITE. The right of a creditor to
pursue the debtor's property into the hands of
third persons for the enforcement of his claim.
DROIT-DROIT. A double right; that is, the right
of possession and the right of property. These
two rights were, by the theory of our ancient law,
distinct; and the above phrase was used to indicate
the concurrence of both in one person, which con-
currence was necessary to constitute a complete
title to land. Mozley & Whitley.
DROIT ECRIT. In French law. (The written
law.) The Roman civil law, or Corpus Juris Ci-
vilis. Steph.Lect. 130.
DROIT INTERNATIONAL. International law.
DROIT MARITIME. Maritime law.
DROIT NATUREL. Fr. The law of nature.
DROIT NE POET PAS MORIER. Right cannot
die. Jenk.Cent. 100, case 95.
DROIT NE DONE PLUIS QUE SOIT DE-
MAUNDE. The law gives not more than is de-
manded. 2 Inst. 286.
DROITS OF ADMIRALTY. Rights or perquisites
of the admiralty. A term applied to goods found
derelict at sea. Applied also to property captured
in time of war by non-commissioned vessels of a
belligerent nation. 1 Kent, Comm. 96; 2 Sel.Es-
says in Anglo-Amer.Leg.Hist. 318; 15 L.Q.R. 359;
Marsden, Admiralty, Droits and Salvage; 1 W.
Rob. 423. In England, it has been usual in mari-
time wars for the government to seize and con-
demn, as droits of admiralty, the property of an
enemy found in her ports at the breaking out of
hostilities. 1 C.Rob. 196; 13 Ves. 71; 1 Edw. 60;
3 Bos. & P. 191. The power to exercise such a
right has not been delegated to, nor has it ever
been claimed by, the United States government.
Benedict, Adm. § 33; Brown v. U. S., 8 Cranch, 110,
3 L.Ed. 504.
DROITURAL. What belongs of right; relating to
right; as real actions are either droitural or pos-
sessory,—droitural when the plaintiff seeks to re-
cover the property. Finch, Law, 257.
DROMONES, DROMOS, DROMUNDA. These
were at first high ships of great burden, but after-
wards those which we now call "men-of-war."
Jacob.
DROP. In English practice. When the members
of a court are equally divided on the argument
showing cause against a rule nisi, no order is
made, i. e., the rule is neither discharged nor
made absolute, and the rule is said to drop. In
practice, there being a right to appeal, it has been
usual to make an order in one way, the junior
judge withdrawing his judgment. Wharton.
DROP-LETTER. A letter addressed for delivery
in the same city or district in which it is posted.
DROP SHIPMENT DELIVERY. In mercantile
usage, this phrase refers to ordinary freight un-
loaded from railroad cars;—distinguished from
carload shipments, known as "track delivery
shipments." Boshell v. Receivers of St. Louis &
S. F. R. Co., 200 Ala. 366, 76 So. 282, 284.
DROPPING GROUND. In the logging industry,
a place on the bank of a stream to store sawlogs,
railroad ties, staves, and the products of the for-
est, while waiting for a rise of the stream that will
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DRY
enable the owner to float his timbered products
down the river to a market. Lexington & E. Ry.
Co. v. Grigsby, 176 Ky. 727, 197 S.W. 408.
DROVE. A number of animals collected and driv-
en together in a body; a flock or herd of cattle in
process of being driven; indefinite as to number,
but including at least several. McConvill v. Jer-
sey City, 39 N.J.Law, 43.
DROVE-ROAD. In Scotch law. A road for driv-
ing cattle. 7 Bell, App.Cas. 43, 53, 57. A drift-
road. Lord Brougham, Id.
DROVE-STANCE. In Scotch law. A place adjoin-
ing a drove-road, for resting and refreshing sheep
and cattle on their journey. 7 Bell, App.Cas. 53,
57.
DROVER'S PASS. A free pass given by a rail-
road company, accepting a drove of cattle for
transportation, to the drover who accompanies
and cares for the cattle on the train. Railway
Co. v. Ivy, 71 Tex. 409, 9 S.W. 346, 1 L.R.A. 500, 10
Am.St.Rep. 758.
DROWN. To merge or sink. "In some cases a
right of freehold shall drown in a chattel." Co.
Litt. 266a, 321a.
DRU. A thicket of wood in a valley. Domesday.
DRUG. The general name of substances used in
medicine; any substance, vegetable, animal, or
mineral, used in the composition or preparation of
medicines; any substance used as a medicine.
Carroll Perfumers v. State, Ind., 7 N.E.2d 970, 972;
Hammond v. State, 173 Ark. 674, 293 S.W. 714, 717.
The term is also applied to materials used in dye-
ing and in chemistry. See, generally, Collins v.
Banking Co., 79 N.C. 281, 28 Am.Rep. 322; In-
surance Co. v. Flemming, 65 Ark. 54, 44 S.W. 464,
39 L.R.A. 789, 67 Am.St.Rep. 900.
DRUG STORE. A place where drugs are sold.
Department of State v. Kroger Grocery & Baking
Co., Ind.App., 40 N.E.2d 375, 378; Carroll Per-
fumers v. State, 212 Ind. 455, 7 N.E.2d 970, 972.
DRUGGIST. A dealer in drugs; one whose busi-
ness is to sell drugs and medicines. In strict us-
age, this term is to be distinguished from "apothe-
cary." A druggist deals in the uncompounded
medicinal substances; the business of an apothe-
cary is to mix and compound them. But in Ameri-
ca the two words are used interchangeably, as the
same persons usually discharge both functions.
State v. Donaldson, 41 Minn. 74, 42 N.W. 781.
DRUGLESS PRACTITIONER. Any person who
practises or holds himself out in any way as prac-
tising the treatment of any ailment, disease, de-
fect, or d4sability of the human body by manipu-
lation, adjustment, manual or electrotherapy, or
by any similar method. State v. Houck, Wash.,
203 P.2d 693, 699.
DRUMMER. A term applied to commercial agents
who travel for wholesale merchants and • supply
the retail trade with goods or take orders for
goods to be shipped to the retail dealer. Thomas
v. Hot Springs, 34 Ark. 557, 36 Am.Rep. 24.
DRUNGARIUS. In old European law. The , com-
mander of a drungus, or band of soldiers.. Applied
also to a naval commander. Spelman.
DRUNGUS. In old European law. A band of
soldiers, (globus militum.) Spelman.
DRUNK. A person is "drunk" when he 'is so far
under the influence of liquor that his passions are
visibly excited or his judgment impaired, or wilen
his brain is so far affected by potations of liquor
that his intelligence, sense-perceptions, judgmert,
continuity of thought or of ideas, speech,, and ,co-
ordination of volition with muscular action (pr
some of these faculties or processes) are impaired
or not under normal control. Wilson V. Inter-
Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102, 106.
It is a synonym of intoxicated. Gault v. State, 42
Okl.Cr. 89, 274 P. 687, 688.
DRUNKARD. He is a drunkard whose habit it is
to get drunk; whose ebriety has become habitual.
The terms "drunkard" and "habitual drunkard"
mean the same thing. Gourlay v. Gourlay, 16 R.I.
705, 19 A. 142. Pollon v. State, 218' Wis. 466, 261
N.W. 224, 225.
A "common" drunkard is defined by statute in some
states as a person who has been convicted of drunkenness
(or proved to have been drunk) a certain number of times
within a limited period. State v. Flynn, 16 R.I. 10, 11 A.
170. Elsewhere the word "common" in this connection is
understood as being equivalent to "habitual," Com. v.
McNamee, 112 Mass. 286; or perhaps as synonymous with
"public," Com. v. Whitney, 5 Gray, Mass., 86.
DRUNKENNESS. In medical jurisprudence. The
condition of a man whose mind is affected by the
immediate use of intoxicating drinks; the state
of one who is "drunk." Mutual Life Ins. Co. v.
Johnson, 64 Okl. 222, 166 P. 1074, 1076. 'The ef-
fect produced upon the mind or body by drinking
intoxicating liquors to such an extent that the
normal condition of the subject is changed and his
capacity for rational action and conduct is sub-
stantially lessened. Lecates v. Lecates, Del.Super.,
190 A. 294, 296. See Drunk.
DRY, adj. In the vernacular, this term means
desiccated or free from moisture; but, In legal
use, it signifies formal or nominal, without impos-
ing any duty or responsibility, or unfruitful, with-
out bringing any profit or advantage.
DRY, n. Term used to designate a person who is
opposed to allowing the sale of intoxicating liq-
uors; a prohibitionist; in contradistinction to a
"wet," or antiprohibitionist. State v. Shumaker,
200 Ind. 623, 157 N.E. 769, 778, 58 A.L.R. 954.
DRY CHECK. Synonymous wan -cold check",
and "hot check". Elder v. Evatt, Tex.Civ.App., 154
S.W.2d 684, 685.
DRY-CRXFT. Witchcraft; magic. Anc. Inst.
Eng.
DRY DOCK. Watertight oasin, which allows
examination and work on bottom of vessel after
pumping out. Maryland Casualty Co. v. La'wson,
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DRY
C.C.A.Fla., 101 F.2d 732, 733. Whatever may have
been the definition of a "dry dock" in the past,
the definition must be enlarged to include modern
facilities for repairing boats out of the water, as
the meaning of the term, used in its common,
ordinary sense, is a dry place to work in. Con-
tinental Casualty Co. v. Lawson, D.C.Fla., 2 F.
Supp. 459, 460.
DRY EXCHANGE. In English law. A term for-
merly in use, said to have been invented for the
purpose of disguising and covering usury; some-
thing being pretended to pass on both sides,
whereas, in truth, nothing passed but on one side,
in which respect it was called "dry." Cowell;
Blount.
DRY ICE. Solid carbon dioxide. Carbo-Frost v.
Pure Carbonic, C.C.A.Mo., 103 F.2d 210, 213; New
York Eskimo Pie Corporation v. Rataj, C.C.A.Pa.,
73 F.2d 184, 186.
DRY MORTGAGE. One which creates a lien on
land for the payment of money, but does not im-
pose any personal liability upon the mortgagor,
collateral to or over and above the value of the
premises. Frowenfeld v. Hastings, 134 Cal. 128,
66 P. 178.
DRY-MULTURES. In Scotch law. Corn paid to
the owner of a mill, whether the payers grind or
not.
DRY NATURAL GAS. Natural gas that does not
contain an appreciable amount of readily con-
densible gasoline. When natural gas contains
readily condensible gasoline it is called "wet na-
tural gas." Mussellem v. Magnolia Petroleum
Co., 107 Oki. 183, 231 P. 526, 530.
DRY OIL. A petroleum liquid carrying in cohe-
sion with it less than 3 per cent. by volume of wa-
ter and sediment. Alamitos Land Co. v. Shell Oil
Co., 3 Ca1.2d 396, 44 P.2d 573, 575.
DRY RECEIVERSHIP. Receivership wherein
there is no equity to be administered for general
creditors, even if action is in statutory form.
Maxwell Lumber Co. v. Connelly, 34 N.M. 562, 287
P. 64, 67.
DRY RENT. Rent seck; a rent reserved without
a clause of distress.
DRY TRUST. A passive trust; one which re-
quires no action on the part of the trustee beyond
turning over money or property to the cestui que
trust. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d
135, 142.
DRY WEIGHT. In tariff laws, this term does not
mean the weight of an article after desiccation in
a kiln, but its air-dry weight as understood in com-
merce. U. S. v. Perkins, 66 F. 50, 13 C.C.A. 324.
DUAL BUSINESS. Must show units of substan-
tial separateness and completeness, such as might
be maintained as an independent business and
capable of producing profit in and of themselves.
Maxwell v. Kent-Coffey Mfg. Co., 204 N.C. 365,
168 S.E. 397, 399, 90 A.L.R. 476.
DUAL NATIONALITY. Fact that two states
make equal claim to the allegiance of an individ-
ual at the same time. Perkins v. Elg, App.D.C.,
59 S.Ct. 884, 894, 307 U.S. 325, 83 L.Ed. 1320.
DUARCHY. A form of government where two
reign jointly.
DUAS UXORES EOUEM TEMPORE HABERE
NON LICET. It is not lawful to have two wives
at the same time. Inst. 1, 10, 6; 1 Bl.Comm. 436.
DUBITANS. Doubting. Dobbin, J., dubitans. 1
Show. 364.
DUBITANTE. Doubting. Is affixed to the name
of a judge, in the reports, to signify that he doubt-
ed the decision rendered.
DUBITATUR. It is doubted. A word frequently
used in the reports to indicate that a point is con-
sidered doubtful.
DUBITAVIT. Doubted. Vaughan, C. J., dubitav-
it. Freem. 150.
DUCAT. A foreign coin, varying in value in dif-
ferent countries, but usually worth about $2.26 of
our money.
DUCATUS. In feudal and old English law. A
duchy, the dignity or territory of a duke.
DUCES TECUM. (Lat. Bring with you.) The
name of certain species of %Nwrits, of which the
subpcena duces tecum is the most usual, requiring
a party who is summoned to appear in court to
bring with him some document, piece of evidence,
or other thing to be used or inspected by the court.
DUCES TECUM LICET LANGUIDUS. (Bring
with you, although sick.) In practice. An ancient
writ, now obsolete, directed to the sheriff, upon a
return that he could not bring his prisoner with-
out danger of death, he being adeo languidus, (so
sick;) whereupon the court granted a habeas cor-
pus in the nature of a duces tecum licet languidus.
Cowell; Blount.
DUCHY OF LANCASTER. Those lands which
formerly belonged to the dukes of Lancaster, and
now belong to the crown in right of the duchy.
The duchy is distinct from the county palatine of
Lancaster, and includes not only the county, but
also much territory at a distance from it, especi-
ally the Savoy in London and some land near
Westminster. 3 Bl.Comm. 78.
DUCHY COURT OF LANCASTER. A tribunal
of special jurisdiction, held before the chancellor
of the duchy, or his deputy, concerning all matters
of equity relating to lands holden of the crown in
right of the duchy of Lancaster; which is a thing
very distinct from the county palatine, (which
has also its separate chancery, for sealing of writs,
and the like,) and comprises much territory which
lies at a vast distance from it; as particularly a
very large district surrounded by the city of West-
minster. The proceedings in this court are the
same as were those on the equity side of the court
of chancery, so that it seems not to be a court
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DUE
of record; and, indeed, it has been holden that
the court of chancery has a concurrent jurisdic-
tion with the duchy court, and may take cogniz-
ance of the same causes. Jud.Act 1873, § 18; 3
Bl.Comm. 78.
DUCKING–STOOL. See Castigatory.
DUCROIRE. In French law. Guaranty; equiv-
alent to del credere, (which see.)
DUE. Just; proper; regular; lawful; suffi-
cient; remaining unpaid; reasonable; as in the
phrases "due care," "due process of law," "due
notice."
Owing; payable; justly owed. That which one
contracts to pay or perform to another; that
which law or justice requires to be paid or done.
Owed, or owing, as distinguished from payable.
A debt is often said to be due from a person where
he is the party owing it, or primarily bound to pay,
whether the time for payment has or has not ar-
rived. The same thing is true of the phrase "due
and owing."
Payable. A bill or note is commonly said to be
due when the time for payment of it has arrived.
Final is not synonymous with due. Twine v.
Locke, D.C.N.Y., 3 F.Supp. 1012, 1013.
The word "due" always imports a fixed and settled
obligation or liability, but with reference to the time for
its payment there is considerable ambiguity in the use of
the term, as will appear from the foregoing definitions, the
precise signification being determined in each case from the
context. It may mean that the debt or claim in question
is now (presently or immediately) matured and enforce-
able, or that it matured at some time in the past and yet
remains unsatisfied, or that it is fixed and certain but the
day appointed for its payment has not yet arrived. But
commonly, and in the absence of any qualifying expres-
sions, the word "due" is restricted to the first of these
meanings, the second being expressed by the term "over-
due," and the third by the word "payable." See Feeser v.
Feeser, 93 Md. 716, 50 A. 406.
DUE AND PROPER CARE. That degree of care
which is required of one for prevention of the ac-
cident. Odgers v. Clark, Del.Super., 19 A.2d 724,
726, 2 Terry 232.
DUE AND REASONABLE CARE. Care which
reasonably prudent man would exercise under cir-
cumstances. Southern Ry. Co. v. Whetzel, 159
Va. 796, 167 S.E. 427, 431.
DUE CARE. Just, proper, and sufficient care, so
far as the circumstances demand it; the absence
of negligence. That care which an ordinarily
prudent person would have exercised under the
circumstances. "Due care" is care proportioned
to any given situation, its surroundings, peculiar-
ities, and hazards. It may and often does require
extraordinary care. Tower v. Camp, 103 Conn. 41,
130 A. 86, 89. "Due care," "reasonable care," and
"ordinary care" are convertible terms. Corthell
v. Great Atlantic & Pacific Tea Co., 291 Mass. 242,
196 N.E. 850, 851; Sweeney v. Blue Anchor Bev-
erage Co., 325 Pa. 216, 189 A. 231, 234.
This term, as usually understood in cases where
the gist of the action is the defendant's negli-
gence, implies not only that a party has not been
negligent or careless, but that he has been guilty
of no violation of law in relation to the subject-
matter or transaction which constitutes the cause
of action.
DUE CONSIDERATION. To give such weight
or significance to a particular factor as under the
circumstances it seems to merit, and this involves
discretion. United States ex rel. Maine Potato
Growers & Shippers Ass'n v. Interstate Commerce
Commission, 88 F.2d 780, 783, 66 App.D.C. 398.
DUE COMPENSATION. For condemned land is
the value of land taken and the damages, if any,
which result to him as a consequence of the tak-
ing without considering either general benefits or
injuries. Mississippi State Highway Commission
v. Hillman, 189 Misc. 850, 198 So. 565, 569.
DUE COURSE HOLDER. See "Holder in Due
Course."
DUE COURSE OF LAW. This phrase is synony-
mous with "due process of law," or "the law of
the land," and the general definition thereof is
"law in its regular course of administration
through courts of justice;" and, while not always
necessarily confined to judicial proceedings, yet
these words have such a signification, when used
to designate the kind of an eviction, or ouster,
from real estate by which a party is dispossessed,
as to preclude thereunder proof of a constructive
eviction resulting from the purchase of a para-
mount title when hostilely asserted by the party
holding it. Direct Plumbing Supply Co. v. City
of Dayton, 138 Ohio St. 540, 38 N.E.2d 70, 72, 137
A.L.R. 1058.
DUE DATE. Time appointed or required for fil-
ing a tax return and, in the event of an extension
of time to file return, is the date to which period
for filing is extended. Langer v. Gray, N.D., 15
N.W.2d 732, 735. Under federal Revenue Act, "due
date," is the date fixed for payment of tax, or sev-
eral installments thereof. American Exchange
Irving Trust Co. v. U. S., Ct.C1., 52 F.2d 1027, 1028.
Within Texas inheritance tax law due date is not date of
assessment, but last day on which taxes could be paid with-
out incurring penalty. Half v. U. S., Ct.C1., 5 F.Supp. 132,
135.
DUE DILIGENCE. See Diligence.
DUE INFLUENCE. Influence obtained by per-
suasion and argument or by appeals to the af-
fections. In re Chamberlain's Estate, Cal.App.,
109 P.2d 449, 452.
DUE NOTICE. No fixed rule can be established
as to what shall constitute "due notice." "Due"
is a relative term, and must be applied to each
case in the exercise of the discretion of the court
in view of the particular circumstances. Slattery
v. Doyle, 61 N.E. 264, 180 Mass. 27; Shellenberg-
er v. Warburton, 124 A. 189, 190, 279 Pa. 577; Car-
son v. Kalisch, 99 A: 199, 202, 89 N.J.Law, 458;
Franklin Brass Foundry Co. v. Shapiro & Aron-
son, C.C.A.Pa., 278 F. 435, 436; City of Sebree v.
Powell, 298 S.W. 1103, 1104, 221 Ky. 478.
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DUE
DUE POSTING. Includes stamping and placing
letter in United States mail. Tharp v. Loeb
Hardware Co., 135 So. 412, 413, 24 Ala.App. 344.
DUE PROCESS OF LAW. Law in its regular
courte of administration through courts of jus-
tice. 3 Story, Const. 264, 661. "Due process of
law in each particular case means such an exer-
cise of the powers of the government as the set-
tled maxims of law permit and sanction, and un-
der such safeguards for the protection of indivi-
dual rights as those maxims prescribe for the
class of cases to which the one in question be-
longs." Cooley, Const. Lim. 441. Whatever dif-
ficulty may be experienced in giving to those
terms a definition which will embrace every per-
missible exertion of power affecting private rights,
and exclude such as is forbidden, there can be no
doubt of their meaning when applied to judicial
proceedings. They then mean a course of legal
proceedings according to those rules and princi-
ples which have been established in our systems
of jurisprudence for the enforcement and p .rotec-
tion of private rights. To give such proceedings
any validity, there must be a tribunal competent
by its constitution—that is, by the law of its crea-
tion—to pass upon the subject-matter of the suit;
and, if that involves merely a determination of
the personal liability of the defendant, he must be
brought within its jurisdiction by service of proc-
ess within the state, or his voluntary appearance.
Pennoyer v. Neff, 95 U.S. 733, 24 L.Ed. 565. Due
process of law implies the right of the person af-
fected thereby to be present before the tribunal
which pronounces judgment upon the question of
life, liberty, or property, in its most comprehen-
sive sense; to be heard, by testimony or other-
wise, and to have the right of controverting, by
proof, every material fact which bears on the
question of right in the matter involved. If any
question of fact or liability be conclusively pre-
sumed against him, this is not due process of law.
Zeigler v. Railroad Co., 58 Ala. 599. These phras-
es in the constitution do not mean the general
body of the law, common and statute, as it was
at the time the constitution took effect; for that
would seem to deny the right of the legislature to
amend or repeal the law. They refer to certain
fundamental rights, which that system of juris-
prudence, of which ours is a derivative, has al-
ways recognized. Brown v. Levee Com'rs, 50
Miss. 468. "Due process of law," as used in the
constitution, cannot mean less than a prosecution
or suit instituted and conducted according to the
prescribed forms and solemnities for ascertaining
guilt, or determining the title to property. Em-
bury v. Conner, 3 N.Y. 511, 517, 53 Am.Dec. 325.
And see, generally, Davidson v. New Orleans, 96
U.S. 104, 24 L.Ed. 616.
"Law of the land," "due course of law," and "due proc-
ess of law" are synonymous. People v. Skinner, Cal., 110
P.2d 41, 45; State v. Rossi, 71 R.I. 284, 43 A.2d 323, 326;
Direct Plumbing Supply Co. v. City of Dayton, 138 Ohio St.
540, 38 N.E.2d 70, 72, 137 A.L.R. 1058; Stoner v. Higginson,
316 Pa. 481, 175 A. 527, 531. But "judicial process" and
"judicial proceedings" are not necessarily synonymous
with "due process." Pennsylvania Publications v. Penn-
sylvania Public Utility Commission, 152 Pa.Super. 279, 32
A.2d 40, 49; Barry v. Hall, 98 F.2d 222, 68 App.D.C. 350.
The essential elements of "due process of law" are notice
and opportunity to be heard and to defend in orderly pro-
ceeding adapted to nature of case, and the guarantee or
due process requires that every man have protection of day
in court and benefit of general law. Dimke v. Finke, 209
Minn. 29, 295 N.W. 75, 79; Di Maio v. Reid, 13 N.J.L. 17,
37 A.2d 829, 830. Daniel Webster defined this phrase to
mean a law which hears before it condemns, which pro-
ceeds on inquiry and renders judgment only after trial.
Wichita Council No. 120 of Security Ben. Ass'n v. Security
Ben. Assn., 138 Kan. 841, 28 P.2d 976, 980, 94 A.L.R. 629;
J. B. Barnes Drilling Co. v. Phillips, 166 Okla. 154, 26 P.2d
766. This constitutional guaranty demands only that law
shall not be unreasonable, arbitrary, or capricious, and
that means selected shall have real and substantial rela-
tion to object. Nebbia v. People of State of New York,
N.Y., 54 S.Ct. 505, 291 U.S. 502, 78 L.Ed. 940, 89 A.L.R.
1469; North American Co. v. Securities and Exchange Com-
mission, C.C.A., 133 F.2d 148, 154.
DUE PROOF. Within policies requirements
mean such a statement of facts, reasonably veri-
fied, as, if established in court, would prima facie
require payment of the claim, and does not mean
some particular form of proof which the insurer
arbitrarily demands. Misskelley v. Home Life
Ins. Co., 205 N.C. 496, 171 S.E. 862, 868; National
Life Ins. Co. v. White, D.C.Mun.App., 38 A.2d 663,
666. Sufficient evidence to support or produce a
conclusion; adequate evidence. Lando v. Equita-
ble Life Assur. Soc. of U. S., D.C.Cal., 11 F.Supp.
729, 732.
DUE REGARD. Consideration in a degree appro-
priate to demands of the particular case. Willis
v. Jonson, 279 Ky. 416, 130 S.W.2d 828, 832.
DUE TO. Expressions "sustained by," "due to,"
"resulting from," "sustained by means of," "sus-
tained in consequence 4" and "sustained through"
have been held to be synonymous. Federal Life
Ins. Co. v. White, Tex., 23 S.W.2d 832, 834. Also,
synonymous with "caused by." American Stores
Co. v. Herman, 166 Md. 312, 171 A. 54, 58.
DUE-BILL. A brief written acknowledgment of
a debt. It is not made payable to order, like a
promissory note. See Feeser v. Feeser, 93 Md.
716, 50 Atl. 406; Lee v. Balcom, 9 Colo. 216, 11
Pac. 74. See I. 0. U.
DUEL. A duel is any combat with deadly weap-
ons, fought between two or more persons, by
previous agreement or upon a previous quarrel.
Baker v. Supreme Lodge K. P., 103 Miss. 374, 60
So. 333, Ann.Cas.1915B, 547.
DUELLING. The fighting of two persons, one
against the other, at an appointed time and place,
upon a precedent quarrel. It differs from an af-
fray in this, that the latter occurs on a sudden
quarrel, while the former is always the result of
design.
DUELLUM. The trial by battel or judicial com-
bat. See Battel.
DUES. Certain payments; rates or taxes. See
Ward v. Joslin, 105 Fed. 227, 44 C.C.A. 456; Whit-
man v. National Bank, 176 U.S. 559, 20 Sup.Ct.
477, 44 L.Ed. 587. As applied to club and other
membership corporations, word refers to sums
paid toward support of society and to retain mem-
bership therein. Jefferson County Farm Bureau
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DUMMY
v. Sherman, 208 Iowa 614, 226 N.W. 182, 185.
And covers only fixed and definite charges appli-
cable to all club members. Hardt v. McLaughlin,
D.C.Pa., 25 F.Supp. 684, 685.
DUKE, in English law, is a title of nobility, rank-
ing immediately next to the Prince of Wales. It
is only a title of dignity. Conferring it does not
give any domain, territory, or jurisdiction over the
place whence the title is taken. Duchess, the con-
sort of a duke. Wharton.
DUKE OF EXETER'S DAUGHTER. The name
of a rack in the Tower, so called after a minister
of Henry VI, who sought to introduce it into Eng-
land.
DUKE OF.YORK'S LAWS. A body of laws com-
piled in 1665 for the government of the colony of
New York.
DULOCRACY. A government where servants
and slaves have so much license and privilege
that they domineer. Wharton.
DULY. In due or proper form or manner; ac-
cording to legal requirements.
Regularly; properly; suitable; upon a proper
foundation, as distinguished from mere form; ac-
cording to law in both form and substance. Wel-
born v. Whitney, 190 Okl. 630, 126 P.2d 263, 266;
Cromwell v. Slaney, C.C.A.Mass., 65 F.2d 940, 941;
Zechiel v. Firemen's Fund Ins. Co., C.C.A.Ind., 61
F.2d 27, 28.
DULY ORDAINED MINISTER OF RELIGION.
Person who has been ordained in accordance with
the ceremonial, ritual, or discipline of a recognized
church, religious sect, or religious organization,
to teach and preach its doctrines and to adminis-
ter its rites and ceremonies and public worship,
and who customarily performs those duties. In
re Rogers, D.C.Tex., 47 F.Supp. 265, 266.
DULY QUALIFIED. Being "duly qualified" to
fill an office, in the constitutional sense and in the
ordinary acceptation of the words, means that
the officer shall possess every qualification; that
he shall in all respects comply with every requi-
site before entering on duties of the office; that,
in addition to being elected by the qualified elec-
tors, he shall be commissioned by the governor,
give bond as required by law; and that he shall
be bound by oath or affirmation to support the
Constitution of the commonwealth, and to per-
form the duties of the office with fidelity. Com-
monwealth v. Lomas, 302 Pa. 97, 153 A. 124, 126,
74 A.L.R. 481; State ex rel. Landis v. Bird, 120
Fla. 780, 163 So. 248.
DUM. Lat. While; as long as; until; upon con-
dition that; provided that.
DUM BENE SE GESSERIT. While he shall con-
duct himself well; during good behavior. Ex-
pressive of a tenure of office not dependent upon
the pleasure of the appointing power, nor for a
limited period, but terminable only upon the death
or misconduct of the incumbent.
DUM FERVET OPUS. While the work glows;
in the heat of action. 1 Kent, Comm. 120.
DUM FUIT IN PRISONA. In English law. A
writ which lay for a man who had aliened lands
under duress by imprisonment, to restore to him
his proper estates. 2 Inst. 482. Abolished by St.
3 & 4 Wm. IV. c. 27.
DUM FUIT INFRA )ETATEM. (While he was
within age.) In old English practice. A writ of
entry which formerly lay for an infant after he
had attained his full age, to recover lands which
he had aliened in fee, in tail, or for life, during his
infancy; and, after his death, his heir had the
same remedy. Reg.Orig. 228b; Fitzh. Nat. Brev.
192, G; Litt. § 406; Co.Litt. 247b.
DUM NON FUIT COMPOS MENTIS. The name
of a writ which the heirs of a person who was
non compos mentis, and who aliened his lands,
might have sued out to restore him to his rights.
Abolished by 3 & 4 Wm. IV. c. 27.
DUM RECENS FUIT MALEFICIUM. While the
offense was fresh. A term employed in the old
law of appeal of rape. Bract. fol. 147.
DUM SOLA. While sole, or single. Dum sola
fuerit, while she shall remain sole. Dum sola et
casta vixerit, while she lives single and chaste.
Words of limitation in old conveyances. Co.Litt.
235a. Also applied generally to an unmarried
woman in connection with something that was or
might be done during that condition.
DUMB. One who cannot speak; a person who
is mute.
DUMB-BIDDING. In sales at auction, when the
minimum amount which the owner will take for
the article is written on a piece of paper, and
placed by the owner under a candlestick, or other
thing, and it is agreed that no bidding shall avail
unless equal to that, this is called "dumb-bidding."
Bab. Auct. 44.
DUMMODO. Provided; provided that. A word
of limitation in the Latin forms of conveyances, of
frequent use in introducing a reservation; as in
reserving a rent.
DUMMY, n. One who holds legal title for an-
other; a straw man. Hegstad v. Wysiecki, 178
App.Div. 733, 165 N.Y.S. 898, 900. Space 61/2 feet
in width between street railroad tracks. Schroed-
er v. Pittsburgh Rys. Co., 311 Pa. 398, 165 A.
733.
DUMMY, adj. Sham; make-believe; pretended;
imitation. U. S. v. Warn, D.C.Idaho, 295 F. 328,
330. As respects basis for predicating liability
on parent corporation for acts of subsidiary,
"agency," "adjunct," "branch," "instrumentality,"
"dummy," "buffer," and "tool" all mean very
much the same thing. Lowendahl v. Baltimore &
0. R. Co., 287 N.Y.S. 62, 74, 247 App.Div. 144.
DUMMY DIRECTOR. One to whom (usually) a
single share of stock in a corporation is transfer-
•
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DUMP
red for the purpose of qualifying him as a director
of the corporation, in which he has no real or ac-
tive interest. Ashby v. Peters, 128 Neb. 338, 258
N.W. 639, 99 A.L.R. 843. One who is a mere figure-
head and in effect discharges no duties. Golden
Rod Mining Co. v. Bukvich, 108 Mont. 569, 92 P.
2d 316, 319.
DUMP. To put or throw down with more or less
of violence; to unload. Baney v. Chicago, B. & Q.
R. Co., 116 Neb. 615, 218 N.W. 424, 428. To drop
down; to deposit something in a heap or unshap-
ed mass. Lambert v. City of Port Arthur, Tex.,
22 S.W.2d 320, 321.
DUMP CARS. A cart or car having a body that
can be tilted or a bottom opening downwards for
emptying. Baney v. Chicago, B. & Q. R. Co., 116
Neb. 615, 218 N.W. 424, 428.
DUMPING. In commercial usage, the act of sell-
ing in quantity at a very low price or practically
regardless of the price; also, selling (surplus
goods) abroad at less than the market price at
home. Webster, Dict. The act of forcing a pro-
duct such as cotton on the market during the
short gathering season. Arkansas Cotton Grow-
ers' Co-op. Ass'n v. Brown, 270 S.W. 946, 953, 168
Ark. 504.
DUMPING BOARD. An elevated structure of
timber, which. in part overhangs the water, to en-
able a scow to go under it for the purpose of
taking oft a load. Healey v. Moran Towing &
Transportation Co., C.C.A.N.Y., 253 F. 334, 337.
DUN. One who duns or urges for payment; a
troublesome creditor. A demand for payment
whether oral or written. Stand. Dict.
A mountain or high open place. The names of
places ending in dun or don were either built on
hills or near them in open places.
DUNA. In old records. A bank of earth cast
up; the side of a ditch. Cowell.
DUNGEON. Such an underground prison or cell
as was formerly placed in the strongest part of
a fortress; a dark or subterraneous prison.
DUNIO. A double; a kind of base coin less than
a farthing.
DUNNAGE. Pieces of wood placed against the
sides and bottom of the hold of a vessel, to pre-
serve the cargo from the effect of leakage, accord-
ing to its nature and quality. Abb.Shipp. 227.
There is considerable resemblance between dun-
nage and ballast. The latter is used for trimming
the ship, and bringing it down to a draft of water
proper, and safe for sailing. Dunnage is placed
under the cargo to keep it from being wetted by
water getting into the hold, or between the differ-
ent parcels to keep them from bruising and injur-
ing each other. Great Western Ins. Co. v.
Thwing, 13 Wall. 674, 20 L.Ed. 607; Richards v.
Hansen, C.C.Mass., 1 F. 56.
"Dunnage" belongs to the category of crating
and boxing employed to protect more valuable ar-
titles in shipment, the weight of which, unless
some provision to the contrary appears in a tariff
classification, naturally takes the rate applicable
to the contents. "Dunnage" used in blocking and
securing automobiles was held subject to the auto-
mobile rate and not to the lumber rate, under
tariff classification providing charges shall be
computed on gross weights. Butler Motor Co. v,
Atchison, T. & S. F. Ry. Co., C.C.A.Mo., 272 F.
683, 684.
DUNSETS. People that dwell on hilly places or
mountains. Jacob.
DUO NON POSSUNT IN SOLIDO UNAM REM
POSSIDERE. Two cannot possess one thing in
entirety. Co.Litt. 368.
DUO SUNT INSTRUMENTA AD OMNES RES
AUT CONFIRMANDAS AUT IMPUGNANDAS,
RATIO ET AUTHORITAS. There are two instru-
ments for confirming or impugning all things,—
reason and authority. 8 Coke, 16.
DUODECEMVIRALE JUDICIUM. The trial by
twelve men, or by jury. Applied to juries de
medietate linguce. Mol. de Jure Mar. 448.
DUODECIMA MANUS. Twelve hands. The
oaths of twelve men, including himself, by whom
the defendant was allowed to make his law. 3 Bl.
Comm. 343.
DUODENA. In old records. A jury of twelve
men. Cowell.
DUODENA MANU. A dozen hands, is e., twelve
witnesses to purge a criminal of an offense.
DUODENUM. The intestine that joins onto the
lower portion of the stomach and that goes out
of the stomach. Metropolitan Life Ins. Co. v.
Crowder, 71 Ga.App. 612, 31 S.E.2d 618, 620.
DUORUM IN SOLIDUM DOMINIUM VEL POS-
SESSIO ESSE NON POTEST. Ownership or pos-
session in entirety cannot be in two persons of
the same thing. Dig. 13, 6, 5, 15; Mackeld. Rom.
Law, § 245. Bract. fol. 28b.
DUPLA. In the civil law. Double the price of a
thing. Dig. 21, 2, 2.
DUPLEX HOUSE. A house which has accommo-
dations for two families on two or more floors,
without regard to whether such accommodations
are identical or not. Donnelly v. Spitza, 246 Mich.
284, 224 N.W. 396, 397.
DUPLEX QUERELA. A double complaint. An
ecclesiastical proceeding, which is in the nature
of an appeal. Phillim.Ecc.Law, 440. See Double
Complaint.
DULPEX VALOR MARITAGII. In old English
law. Double the value of the marriage. While
an infant was in ward, the guardian had the pow-
er of tendering him or her a suitable match, with-
out disparagement, which if the infants refused,
they forfeited the value of the marriage to their
guardian, that is, so much as a jury would assess
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DURANTE
or any one would give to the guardian for such
an alliance; and, if the infants married themselves
without the guardian's consent, they forfeited dou-
ble the value of the marriage. 2 Bl.Comm. 70;
Litt. § 110; Co.Litt. 82b.
DUPLICATE, v. To double, repeat, make, or add
a thing exactly like a preceding one; reproduce
exactly. State v. Ogden, 20 N.M. 636, 151 P. 758,
760.
DUPLICATE, n. When two written documents
are substantially alike, so that each might be a
copy or transcript from the other, while both
stand on the same footing as original instruments,
they are called "duplicates." Agreements, deeds,
and other documents are frequently executed in
duplicate, in order that each party may have an
original in his possession. Lorch v. Page, 97
Conn. 66, 115 A. 681, 682, 24 A.L.R. 1204.
A duplicate is sometimes defined to be the "copy" of a
thing ; but, though generally a copy, a duplicate differs
from a mere copy, in having all the validity of an original.
Nor, it seems need it be an exact copy. Defined also to be
the "counterpart" of an instrument; but in indentures
there is a distinction between counterparts executed by the
several parties respectively, each party affixing his or her
seal to only one counterpart, and duplicate originals, each
executed by all the parties. Maston v. Glen Lumber Co.,
65 Okl. 80, 163 P. 128, 129. The old indentures, charters, or
chirographs seem to have had the character of duplicates.
Burrill.
That which exactly resembles or corresponds to some-
thing else; another, correspondent to the first; hence, a
copy; transcript; counterpart; an original instrument
repeated; a document the same as another in essential
particulars; differing from a copy as being valid as an
original. Baker v. Sovereign Camp, W. 0. W., Mo.App.,
116 S.W.2d 513, 517.
The term is also frequently used to signify a
new original, made to take the place of an instru-
ment that has been lost or destroyed, and to have
the same force and effect. Benton v. Martin, 40
N.Y. 347.
In English law. The certificate of discharge
given to an insolvent debtor who takes the bene-
fit of the act for the relief of insolvent debtors.
The ticket given by a pawnbroker to the pawn-
er of a chattel.
DUPLICATE TAXATION. The same as "double
taxation." See that title.
DUPLICATE WILL. A term used in England,
where a testator executes two copies of his will,
one to keep himself, and the other to be deposited
with another person. Upon application for pro-
bate of a duplicate will, both copies must be de-
posited in the registry of the court of probate.
DUPLICATIO. In the civil law. The defendant's
answer to the plaintiff's replication; correspond-
ing to the rejoinder of the common law.
DUPLICATIONEM POSSIBILITATIS LEX NON
PATITUR. The law does not allow the doubling
of a possibility. 1 Rolle, 321.
DUPLICATUM JUS. Double right. Bract. fol.
283b. See Droit-Droit.
Black's Law Dictionary Revised 4th Ed.-38
DUPLICITOUS. A pleading which joins in one
and the same count different grounds of action of
different nature, or of the same nature, to en-
force a single right to recovery, or which is
based on different theories of the defendant's lia-
bility. Peck v. Woomack, Nev., 192 P.2d 874, 884.
In an information the joinder of separate and dis-
tinct offenses in one and the same count. State v.
Seward, 163 Kan. 136, 181 P.2d 478, 480.
DUPLICITOUS APPEAL. Appeal from two sep-
arate judgments or from judgment and order or
from two independent orders, both of which are
appealable. City of Duncan v. Abrams, 171 Oki.
619, 43 P.2d 720, 723.
DUPLICITY. The technical fault, in pleading, of
uniting two or more causes of action in one count
in a writ, or two or more grounds of defense in
one plea, or two or more breaches in a replica-
tion, or two or more offenses in the same count
of an indictment, or two or more incongruous sub-
jects in one legislative act, or two or more contro-
verted ultimate issues submitted in a single spe-
cial issue. Empire Oil & Gas Corporation v. U. S.,.
C.C.A.Cal., 136 F.2d 868, 872; People v. Link, 365
Ill. 266, 6 N.E.2d 201, 207; Clay Drilling Co. v.
Furman, Tex.Civ.App., 150 S.W.2d 869, 871; Hart-
ley v. Hartley, 198 Ga. 294, 31 S.E.2d 655.
DUPLY, n. (From Lat. duplicatio, q. v.)  In
Scotch pleading. The defendant's answer to the
plaintiff's replication.
DUPLY, v. In Scotch pleading. To rejoin. "It
is duplyed by the panel." 3 State Trials, 471.
DUPUYTREN'S CONTRACTION. A pathologi-
cal condition involving the palmar fascia of the-
hands. American Maize Products Co. v. Nichi-
porchik, 108 Ind.App. 502, 29 N.E.2d 801, 802.
DURABLE LEASES. Leases reserving a rent pay
able annually, with right of re-entry for nonpay-
ment of the same, and for the term "as long as
grass grows or water runs," or equivalent terms.
University of Vermont and State Agr. College v.
Ward, Vt., 158 A. 773, 778.
DURALUMIN. A light weight aluminum alloy.
Reed Propeller Co. v. United States, Ct.C1., 42 F.
Supp. 545, 567.
DURANTE. Lat. During. A word of limitation
in old conveyances. Co.Litt. 234b.
DURANTE ABSENTIA. During absence. In
some jurisdictions, administration of a decedent's
estate is said to be granted durante absentia in
cases where the absence of the proper propon-
ents of the will, or of an executor, delays or im-
perils the settlement of the estate.
DURANTE BENE PLACITO. During good pleas-
ure. The ancient tenure of English judges was
durante bene placito. 1 Bl.Comm. 267, 342.
DURANTE MINORE IETATE. During minority.
2 Bl.Comm. 503; 5 Coke, 29, 30. Words taken
from the old form of letters of administration.
5 Coke, ubi supra.
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DURANTE
DURANTE VIDUITATE. During widowhood. 2
Bl.Comm. 124. Durante casta viduitate, during
chaste widowhood. 10 East, 520.
DURANTE VIRGINITATE. During virginity,
(so long as she remains unmarried.)
DURANTE VITA. During life.
DURATION. Extent, limit or time. People v.
Hill, 7 Cal. 102. The portion of time during which
anything exists. Morrison v. Farmers' & Trad-
ers' State Bank, 70 Mont. 146, 225 P. 123, 125.
DURBAR. In India. A court, audience, or levee.
Mozley & Whitley.
DURESS, v. To subject to duress. A word used
by Lord Bacon. "If the party duressed do make
any motion," etc. Bac. Max. 89, reg. 22.
DURESS, n. Unlawful constraint exercised upon
a man whereby he is forced to do some act that
he otherwise would not have done. It may be eith-
er "duress of imprisonment," where the person is
deprived of his liberty in order to force him to
compliance, or by violence, beating, or other ac-
tual injury, or duress per minas, consisting in
threats of imprisonment or great physical injury
or death. Duress may also include the same in-
juries, threats, or restraint exercised upon the
man's wife, child, or parent. Coughlin v. City of
Milwaukee, 227 Wis. 357, 279 N.W. 62, 67, 119 A.
L.R. 990; Radich v. Hutchins, 95 U.S. 213, 24 L.
Ed. 409.
Duress consists in any illegal imprisonment, or
legal imprisonment used for an illegal purpose,
or threats of bodily or other harm, or other means
amounting to or tending to coerce the will of an-
other, and actually inducing him to do an act con-
trary to his free will. Heider v. Unicume, 142 Or.
410, 20 P.2d 384, 385; Shlensky v. Shlensky, 369
Ill. 179, 15 N.E.2d 694, 698. And it is never "dur-
ess" to threaten to do that which a party has a
legal right to do. Doernbecher v. Mutual Life
Ins. Co. of New York, 16 Wash.2d 64, 132 P.2d 751,
755, 756; Miller v. Walden, 53 Cal.App.2d 353, 127
P.2d 952, 956, 957. Such as, instituting or threat-
ening to institute civil actions. Standard Radio
Corporation v. Triangle Radio Tubes, 125 N.J.L.
131, 14 A.2d 763, 765; Shipman v. Moseley, 319
Ill.App. 443, 49 N.E.2d 662, 666.
DURESS OF GOODS. Where the act consists of
a tortious seizure or detention of property from
the person entitled to it, and requires some act as
a condition for its surrender, the act is "duress of
goods". Sistrom v. Anderson, 51 Cal.App.2d 213,
124 P.2d 372, 376.
DURESS OF IMPRISONMENT. The wrongful
imprisonment of a person, or the illegal restraint
of his liberty, in order to compel him to do some
act. 1 Bl.Comm. 130, 131, 136, 137; 1 Steph.Comm.
137; 2 Kent, Comm. 453.
DURESS PER MINAS. Duress by threats. The
use of threats and menaces to compel a person,
by the fear of death, or grievous bodily harm, as
mayhem or loss of limb, to do some lawful act,
or to commit a misdemeanor. 1 Bl.Comm. 130;
4 Bl.Comm. 30; 4 Steph.Comm. 83; In re Nightin-
gale's Estate, 182 S.C. 527, 189 S.E. 890, 898. See
Metus.
DURESSOR. One who subjects another to duress;
one who compels another to do a thing, as by men-
ace. Bac.Max. 90, reg. 22.
DURHAM. A county palatine in England, the
jurisdiction of which was vested in the Bishop of
Durham until the statute 6 & 7 Wm. IV. c. 19,
vested it as a separate franchise and royalty in
the crown. The jurisdiction of the Durham court
of pleas was transferred to the supreme court of
judicature by the judicature act of 1873.
DURHAM RULE. The irresistible impulse test of
criminal responsibility. The rule states that when
there is some evidence that the accused suffered
from a diseased or defective mental condition at
the time the unlawful act was committed the ac-
cused is not criminally responsible if it is found
beyond a reasonable doubt that the act was the
product of such mental abnormality. Durham v.
United States, C.A.D.C., 214 F.2d 862, 875.
DURING. Throughout the course of; throughout
the continuance of; in the time of; after the com-
mencement and before the expiration of. Conti-
nental Bank & Trust Co. of N. Y. v. Chemical
Bank & Trust Co., 51 N.Y.S.2d 903, 909:
DURING GOOD BEHAVIOR. While defendant
whose sentence had been suspended, was obedient
to the state law. State v. Hardin, 183 N.C. 815,
112 S.E. 593, 595.
DURING THE HOURS OF SERVICE. Working-
hours plus reasonable periods for ingress and
egress. Lienau v. Northwestern Telephone Exch.
Co., 151 Minn. 258, 186 N.W. 945, 946.
DURING THE TRIAL. Period beginning with
swearing of jury and ending with rendition of
verdict. Kokas v. Commonwealth, 237 S.W. 1090,
1091, 194 Ky. 44. Period commencing with pre-
sentation of indictment by grand jury to court and
terminating with final judgment. State v. Hud-
son, 55 R.I. 141, 179 A. 130, 133, 100 A.L.R. 313.
DURSLEY. In old. English law. Blows without
wounding or bloodshed; dry blows. Blount.
DUST EXPLOSION. Almost instantaneous com-
bustion of myriads of small particles of solid mat-
ter held in suspension by air. Cornec v. Baltimore
& 0. R. Co., C.C.A.Md., 48 F.2d 497, 500.
DUSTUCK. A term used in Hindostan for a pass-
port, permit, or order from the English East In-
dian Company. It generally meant a permit under
their seal exempting goods from the payment of
duties. Enc.Lond.
DUTCH AUCTION. See Auction.
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'DWELL
DUTCH LOTTERY. Also known as the "class
lottery."  As distinguished from the "Genoese
lottery" (q. v.), it is a scheme in which the num-
ber and value of the prizes are regularly esti-
mated, all the ticket holders are interested at
once in the play, and chance determines whether
a prize or a blank falls to a given number. Flem-
ing v. Bills, 3 Or. 286.
DUTCH NET. A kind of fishing net commonly
known as a "pound net" (q. v.).
DUTIES. In its most usual signification this word
is the synonym of imposts or customs; but it is
sometimes used in a broader sense, as including
all manner of taxes, charges, or governmental
impositions. Cooley v. Board of Wardens, 12 How.
299, 13 L.Ed. 996.
DUTIES OF DETRACTION. Taxes levied upon
the removal from one state to another of prop-
erty acquired by succession or testamentary dis-
position. Frederickson v. Louisiana, 23 How. 445,
16 L.Ed. 577; In re Strobel's Estate, 5 App.Div.
621, 39 N.Y.S. 169. Cf. Droit de detraction.
DUTIES ON IMPORTS. This term signifies not
merely a duty on the act of importation, but a
duty on the thing imported. It is not confined
to a duty levied while the article is entering the
country, but extends to a duty levied after it has
entered the country. Brown v. Maryland, 12
Wheat. 437, 6 L.Ed. 678.
DUTY. A human action which is exactly conform-
able to the laws which require us to obey them.
Chicago, etc., R. Co. v. Filson, 35 Oki. 89, 91, 128
P. 298.
The words, "it shall be the duty," in ordinary legisla-
tion, imply the assertion of the power to command and to
coerce obedience. Kentucky v. Dennison, 24 How. 66, 107,
16 L.Ed. 717.
In its use in jurisprudence, this word is the cor-
relative of right. Thus, wherever there exists
a right in any person, there also rests a corre-
sponding duty upon some other person or upon
all persons generally. But it is also used, in a
wider sense, to designate that class of moral ob-
ligations which lie outside the jural sphere; such,
namely, as rest upon an imperative ethical basis,
but have not been recognized by the law as within
its proper .province for purposes of enforcement
or redress. Thus, gratitude towards a benefactor
is a duty, but its refusal will not ground an action.
In this meaning "duty" is the equivalent of "moral
obligation," as distinguished from a "legal obli-
gation." Harrison v. Bush, 5 El. & Bl. 349.
Duty is considered by some modern ethicists to be the
fundamental conception of ethics and to be subject to
intuitive knowledge; by others it is conceived as that
which is ethically valid because sanctioned by law, society,
or religion. Webster, Dict.
As a technical term of the law, "duty" signifies a
thing due; that which is due from a person ; that
which a person owes to another. An obligation to
do a thing. A word of more extensive significa-
tion than "debt," although both are expressed by
the same Latin word "debitum." Bankers' Deposit
Guaranty & Surety Co. v. Barnes, 81 Kan. 422, 105
P. 697, 698. Sometimes, however, the term is used
synonymously with debt. Fox v. Hills, 1 Conn.
295, 303.
But in practice it is commonly reserved as the
designation of those obligations of performance,
care, or observance which rest upon a person in
an official or fiduciary capacity; as the duty of
an executor, trustee, manager, etc. Goodwine v.
Vermilion County, 271 Iii. 126, 110 N.E. 890, 892.
It also denotes a tax or impost due to the gov-
ernment upon the importation or exportation of
goods.
Judicial Duty. See Judicial.
Legal Duty. See Legal Duty.
DUTY OF TONNAGE. A charge upon a vessel
as an instrument of commerce for entering, lying
in or leaving a port, and includes all taxes and du-
ties, regardless of name or form. In re Los An-
geles Lumber Products Co., D.C.Cal., 45 F.Supp.
77, 81; Marine Lighterage Corporation v. Lucken-
bach S. S. Co., 139 Misc. 612, 248 N.Y.S. 71, 72.
DUTY OF WATER. Such a quantity of water
necessary when economically conducted and ap-
plied to land without unnecessary loss as will
result in the successful growing of crops. Enter-
prise Irr. Dist. v. Willis, 135 Neb. 827, 284 N.W. 326,
329.
DUUMVIRI. (From duo, two, and viri, men.) A
general appellation among the ancient Romans,
given to any magistrates elected in pairs to fill
any office, or perform any function. Brande.
Duumviri municipales were two annual magis-
trates in the towns and colonies, having judicial
powers. Calvin.
Duumviri navales were officers appointed to
man, equip, and refit the navy. Calvin.
DUX. A military governor of a province. See
Cod. 1, 27, 2. A military officer having charge of
the borders or frontiers of the empire, called
"dux limitis." Cod. 1, 49, 1, pr. At this period, the
word began to be used as a title of honor or dig-
nity.
In Roman law. A leader or military comman-
der. The commander of an army. Dig. 3, 2, 2, pr.
In feudal and old European law. Duke; a title
of honor, or order of nobility. 1 Bl.Comm. 397;
Crabb, Eng.Law, 236.
DWELL. To have an abode; to inhabit; to live
in a place. Gardener v. Wagner, 9 Fed.Cas. 1,154;
Putnam v. Johnson, 10 Mass. 502; Eatontown v.
Shrewsbury, 49 N.J.Law, 188, 6 A. 319. More than
mere physical presence is sometimes required. It
must be in conformity with law. Kaplan v. Tod,
45 S.Ct. 257, 267 U.S. 228, 69 L.Ed. 585; U. S. v.
Tod, D.C., 292 F. 243, 245.
To delay, to pause or linger, to abide as a per-
manent residence or for a time; to live in a place,
to have one's residence or domicile, to reside. It
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DWELLING
is synonymous with inhabit, live, sojourn, stay,
rest. MacLeod v. Stelle, 43 Idaho, 64, 249 P. 254,
256.
DWELLING HOUSE. The house in which a man
lives with his family; a residence; abode; habita-
tion; the apartment or building, or group of
buildings, occupied by a family as a place of resi-
dence.
"Dwelling house" is a very flexible term. Its meaning
depends not only on context, but on the determination of
the courts not to permit public policy or justice to be
defeated by a word. "Dwelling house" often means any
building within the curtilage. Daniels v. Commonwealth,
172 Va. 583, 1 S.E.2d 333, 335. It may mean a single house
used by one family exclusively as a home. It may include
an apartment building, or any structure used by human
beings, partly for business and partly for residential pur-
poses, or a building regardless of habitation. Gerstell v.
Knight, 345 Pa. 83, 26 A.2d 329, 330.
In conveyancing. Includes all buildings at-
tached to or connected with the house. 2 Hil.Real
Prop. 338, and note. In the law of burglary. A
house in which the occupier and his family usually
reside, or, in other words, dwell and lie in. Whart.
Crim.Law, 357. Temporary absence will not de-
stroy character as "dwelling house." Haynes v.
State, 180 Miss. 291, 177 So. 360; State v. Bair,
112 W.Va. 655, 166 S.E. 369, 370, 85 A.L.R. 424.
Private Dwelling
Within a restrictive covenant, a place or house
in which a person or family lives in an individual
or private state, the covenant being violated by the
conversion of a house theretofore used as a resi-
dence for a single family into a residence for two
families, even though the outward appearance of
the house was not materially affected. Paine v.
Bergrose Development Corp., 198 N.Y.S. 311, 312,
119 Misc. 796. The distinction between a boarding
house and a "private dwelling house" is whether
the house is occupied as a home for the occupant
and his wife and child, or whether he occupied it
as a place for carrying on the business of keeping
boarders, although while prosecuting the business
and as a means of prosecuting it, he and his wife
and children live in the house also. Trainor v. Le
Beck, 101 N.J.Eq. 823, 139 A. 16, 17.
DWELLING-PLACE, or home, is some permanent
abode or residence, in which one has the intention
of remaining; it is not synonymous with "domi-
cile," as used in international law, but has a more
limited and restricted meaning. Nor is it synony-
mous with a "place of pauper settlement." Lisbon
v. Lyman, 49 N.H. 553.
DYED HANGING PAPER. See Hanging Paper.
DYING DECLARATION. See Declaration.
DYING WITHOUT ISSUE. At common law this
phrase imports an indefinite failure of issue, and
not a dying without issue surviving at the time of
the death of the first taker. But this rule has
been changed in some of the states, by statute or
decisions, and in England by St. 7 Wm. IV, and 1
Vict. c. 26, § 29.
The words "die without issue," and "die without leaving
issue," in a devise of real estate, import an indefinite fail-
ure of issue, and not the failure of issue at the death of the
first taker. And no distinction is to be made between the
words "without issue" and "without leaving issue." Har-
well v. Harwell, 151 Tenn. 587, 271 S.W. 353, 355.
In Connecticut and other states it has been repeatedly
held that the expression "dying without issue," and like
expressions, have reference to the time of the death of the
party, and not to an indefinite failure of issue. Phelps v.
Phelps, 55 Conn. 359, 11 A. 596; Briggs v. Hopkins, 103
Ohio St. 321, 132 N.E. 843.
Dying without children imports not a failure of issue at
any indefinite future period, but a leaving no children at
the death of the legatee. Condict v. King, 13 N.J.Eq. 375.
The law favors vesting of estates, and limitation such as
"dying without issue," refers to a definite period, fixed in
will, rather than to an indefinite failure of issue. Howard
v. Howard's Trustee, 212 Ky. 847, 280 S.W. 156, 157. Where
context is such as to show clearly that testator intended
the phrase "die without issue" to mean that, if first taker
die without issue during life of testator, the second taker
shall stand in his place and prevent a lapse, the words "die
without issue" are taken to mean death during life of
testator. Martin v. Raff, 114 Ind.App. 507, 52 N.E.2d 839,
845.
DYKE-REED, or DYKE-REEVE. An officer who
has the care and oversight of the dykes and drains
in fenny counties.
DYNASTY. A succession of kings in the same line
or family.
DYSNOMY. Bad legislation; the enactment of
bad laws.
DYSPAREUNIA. In medical jurisprudence. In-
capacity of a woman to sustain the act of sexual
intercourse except with great difficulty and pain;
anaphrodisia (which see).
DYSPEPSIA. A state of the stomach in which its
functions are disturbed, without the presence of
other diseases, or when, if other diseases are pres-
ent, they are of minor importance. Dungl.Med.
Dict.
DYVOUR. In Scotch law. A bankrupt.
DYVOUR'S HABIT. In Scotch law. A habit
which debtors who are set free on a cessio bono-
rum are obliged to wear, unless in the summons
and process of cessio it be libeled, sustained, and
proved that the bankruptcy proceeds from mis-
fortune. And bankrupts are condemned to sub-
mit to the habit, even where no suspicion of fraud
lies against them, if they have been dealers in
an illicit trade. Ersk.Prin. 4, 3, 13.
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E
E. As an abbreviation, this letter may stand for
"Exchequer," "English," "Edward," "Equity,"
"East," "Eastern," "Easter," or "Ecclesiastical."
A Latin preposition, meaning from, out of, after,
or according. It occurs in many Latin phrases;
but (in this form) only before a consonant.
E. E. 0. C. Equal Employment Opportunity Com-
mission.
E. G. An abbreviation of exempli gratia. For the
sake of an example.
E. 0. E. Errors and omissions excepted. Vernon
Metal & Produce Co. v. Joseph Joseph & Bros.
Co., 212 App.Div. 358, 209 N.Y.S. 6, 11.
E CONTRA. From the opposite; on the con-
trary.
E CONVERSO. Conversely. On the other hand;
on the contrary. Equivalent to e contra.
E MERA GRATIA. Out of mere grace or favor.
E PILL ANA. Hawaiian. Adjoining.
E PLURIBUS UNUM. One out of many. The
motto of the United States of America.
EA. Sax. The water or river; also the mouth
of a river on the shore between high and low wa-
ter-mark.
EA EST ACCIPIENDA INTERPRETATIO, QUIE
VITIO CARET. That interpretation is to be re-
ceived [or adopted] which is free from fault [or
wrong.] The law will not intend a wrong. Bac.
Max. 17, (in reg. 3.)
EA INTENTIONE. With that intent. Held not
to make a condition, but a confidence and trust.
Dyer, 138b.
EA QUIE, COMMENDANDI CAUSA, IN VENDI-
TIONIBUS DICUNTUR, SI PALAM APPARE-
ANT, VENDITOREM NON OBLIGANT. Those
things which are said on sales, in the way of com-
mendation, if [the qualities of the thing sold] ap-
pear openly, do not bind the seller. Dig. 18, 1, 43,
pr.
EA QUIE DART IMPOSSIBILIA SUNT, VEL
QUIE IN ,RERUM NATURA NON SUNT, PRO
NON ADJECTIS HABENTUR. Those things
which are impossible to be given, or which are
not in the nature of things, are regarded as not
added, [as no part of an agreement.] Dig. 50, 17,
135.
EA QUIE IN CURIA NOSTRA RITE ACTA
SUNT DEBITIE EXECUTION! DEMANDARI
DEBENT. Co.Litt. 289. Those things which are
properly transacted in our court ought to be com-
mitted to a due execution.
EA QUIE RARO ACCID'UNT NON TEMERE IN
AGENDIS NEGOTIIS COMPUTANTUR. Those
things which rarely happen are not to be taken
into account in the transaction of business without
sufficient reason. Dig. 50, 17, 64. -
EACH. A distributive adjective pronoun, which
denotes or refers to every one of the persons or
things mentioned; every one of two or more per-
sons or things, composing the whole, separately
considered. The effect of this word, used in the
covenants of a bond, is to create a several obliga-
tion. Seiler v. State, 160 Ind. 605, 67 N.E. 448;
Knickerbocker v. People, 102 Ill. 233; Costigan v.
Lunt, 104 Mass. 219; State v. Monfred, 183 Md.
303, 37 A.2d 912, 914. The word "any" is equiva-
lent to "each." Conerty v. Richtsteig, 308 Ill.App.
321, 31 N.E.2d 351.
EADEM CAUSA DIVERSIS RATIONIBUS COR-
AM JUDICIBUS ECCLESIASTIC'S ET SECU-
LARIBUS VENTILATOR. 2 Inst. 622. The same
cause is argued upon different principles before
ecclesiastical and secular judges.
EADEM EST RATIO, EADEM EST LEX. The
same reason, the same law. Charles River Bridge
v. Warren Bridge, 7 Pick. (Mass.) 493.
EADEM MENS PRZESUMITUR REGIS QUA EST
JURIS ET QUIE ESSE DEBET, PRZESERTIM
IN DUBIIS. Hob. 154. The mind of the sovereign
is presumed to be coincident with that of the law,
and with that which it ought to be, especially in
ambiguous matters.
EAGLE. A gold coin of the United States of the
value of ten dollars.
EALDER, or EALDING. In old Saxon law. An
elder or chief.
EALDERMAN, or EALDORMAN. The name of a
Saxon magistrate; alderman; analogous to earl
among the Danes, and senator among the Ro-
mans. See Alderman.
The name of Ealdorman is one of a large class; among
a primitive people age implies command and command
implies age; hence, in a somewhat later stage of language,
the elders are simply the rulers. 1 Freeman, Norman Con-
quest, 51, quoted in Cent.Dict.
EALDOR-BISCOP. An archbishop.
EALDORBURG. Sax. The metropolis; the chief
city. Obsolete.
EALEHUS. (Fr. eale, Sax., ale, and hus, house.)
An ale-house.
EALHORDA. Sax. The privilege of assising and
selling beer. Obsolete.
EAR GRASS. In English law. Such grass which
is upon the land after the mowing, until the feast
of the Annunciation after. 3 Leon. 213.
EAR-MARK. A mark put upon a thing to dis-
tinguish it from another. Originally and literally,
a mark upon the ear; a mode of marking sheep
and other animals.
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EAR
Property is said to be ear-marked when it can
be identified or distinguished from other property
of the same nature.
Money has no ear-mark, but it is an ordinary
term for a privy mark made by any one on a coin.
EAR-MARK RULE. Rule that through the proc-
ess of commingling money or deposit with the
funds of a bank it loses its identity, with the re-
sultant effect of defeating the right of preference
over general creditors. Hitt Fireworks Co. v.
Scandinavian American Bank of Tacoma, 121
Wash. 261, 209 P. 680, 682.
EAR-WITNESS. In the law of evidence. One
who attests or can attest anything as heard by
himself.
EARL. A title of nobility, formerly the highest
in England, now the third, ranking between a
marquis and a viscount, and corresponding with
the French "comte" and the German "graf." The
title originated with the Saxons, and is the most
ancient of the English peerage. William the Con-
queror first made this title hereditary, giving it
in fee to his nobles; and allotting them for the
support of their state the third penny out of the
sheriff's court, issuing out of all pleas of the shire,
whence they had their ancient title "shiremen."
At present the title is accompanied by no territory,
private or judicial rights, but merely confers no-
bility and an hereditary seat in the house of lords.
Wharton.
EARL MARSHAL OF ENGLAND. A great offi-
cer of state who had anciently several courts un-
der his jurisdiction, as the court of chivalry and
the court of honor. Under him is the herald's of-
fice, or college of arms. He was also a judge of
the Marshalsea court, now abolished. This office
is of great antiquity, and has been for several
ages hereditary in the family of the Howards. 3
Bl.Comm. 68, 103; 3 Steph.Comm. 335, note.
EARLDOM. The dignity or jurisdiction of an earl.
The dignity only remains now, as the jurisdiction
has been given over to the sheriff. 1 Bl.Comm.
339.
EARLES-PENNY, or EARL'S PENNY. Money
given in part payment. See Earnest; Arles.
EARLIER MATURITY RULE. The rule under
which bonds first maturing are entitled to priority
when sale of security is not sufficient to satisfy all
obligations. Scherk v. Newton, C.C.A.Colo., 152
F.2d 747, 749.
EARN. To acquire by labor, service or perform.
ance. Hartford Electric Light Co. v. McLaughlin,
37 A.2d 361, 363, 131 Conn. 1.
EARNED INCOME. Implies some labor, man-
agement or supervision in production thereof, not
income derived merely from ownership of prop-
erty. Pennsylvania Co. for Insurances on Lives
& Granting Annuities v. City of Philadelphia, 346
Pa. 406, 31 A.2d 137, 141.
EARNER. One whose personal efforts produces
income, or who owns property which produces it,
or combination of both. Van Meter v. Commis-
sioner of Internal Revenue, C.C.A., 61 F.2d 817,
818; Wells v. Commissioner of Internal Revenue,
C.C.A., 63 F.2d 425, 430.
EARNEST. The payment of a part of the price
of goods sold, or the delivery of part of such
goods, for the purpose of binding the contract.
Weidner v. Hyland, 216 Wis. 12, 255 N.W. 134.
A token or pledge passing between the parties,
by way of evidence, or ratification of the sale. 2
Kent, Comm. 495, note.
EARNING CAPACITY. "Earning capacity" does
not necessarily mean the actual earnings that one
who suffers an injury was making at the time the
injuries were sustained, but refers to that which,
by virtue of the training, the experience, and the
business acumen possessed, an individual is cap-
able of earning. Texas Electric Ry. v. Worthy,
Tex.Civ.App., 250 S.W. 710, 711. Not saving abil-
ity, but capacity to acquire money, less the neces-
sary expense of his own living. Pitman v. Merri-
man, 80 N.H. 295, 117 A. 18, 19, 26 A.L.R. 589.
Fitness, readiness and willingness to work, con-
sidered in connection with opportunity to work.
Hartford Accident & Indemnity Co. v. Hoage, 85
F.2d 411, 416, 66 App.D.C. 154.
EARNING POWER. Power of an individual to
create property. Reward for labor performed.
Ransom v. Matson Na y . Co., D.C.Wash., 1 F.Supp.
244, 246. Not synonymous with wages. Micek v.
Omaha Steel Works, 136 Neb. 843, 287 N.W. 645,
648.
EARNINGS. That which is earned; money earn-
ed; the price of services performed; reward; the
reward of labor or the price of personal service
performed, the reward for personal services,
whether in money or chattels, the fruit or reward
of labor; the fruits of the proper skill, experience,
and industry; the gains of a person derived from
his services or labor without the aid of capital;
money or property gained or merited by labor,.
service, or the performance of something; that
which is gained or merited by labor, services,
or performances. Saltzman v. City of Council.
Bluffs, 214 Iowa 1033, 243 N.W. 161, 162. "Income"
is synonymous with "earnings." State ex rel.
Froedtert Grain and Malting Co. v. Tax Commis-
sion of Wisconsin, 221 Wis. 225, 265 N.W. 672, 673,.
104 A.L.R. 1478.
This term is used to denote a larger class of
credits than would be included in the term "wag-
es." Somers v. Keliher, 115 Mass. 165; Jenks v..
Dyer, 102 Mass. 235.
The gains of the person derived from his serv-
ices or labor without the aid of capital. Brown
v. Hebard, 20 Wis. 330, 91 Am.Dec. 408; United
Benefit Life Ins. Co. of Omaha v. Zwan, Tex.Civ.
App., 143 S.W.2d 977, 980. Either gross or net
earnings. Springfield Coal Mining Co. v. Indus-
trial Commission, 291 Ill. 408, 126 N.E. 133, 22 A..
L.R. 859.
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EASEMENT
Gross Earnings and Net Earnings
The gross earnings of a business or company
are the total receipts before deducting expendi-
tures. Net earnings are the excess of the gross
earnings over the expenditures defrayed in pro-
ducing them, and aside from and exclusive of
capital laid out in constructing and equipping the
works or plant. State v. Railroad Co., 30 Minn.
311, 15 N.W. 307. "Gross earnings" means all re-
ceipts from the employment of capital, without
deduction for expenses incurred. People ex rel.
Genesee Light & Power Co. v. Saxe, 165 N.Y.S.
938, 939, 179 App.Div. 486.
Net Earnings Rule
The net earnings rule for assessing a special
franchise for taxation starts with the gross earn-
ings for the year ending with the commencement
of the year for which the valuation is made from
which is deducted operating expenses and a fair
and reasonable return on that portion of the cor-
poration's capital invested in tangible property,
the balance being deemed to give the net earn-
ings attributable to the special franchise, the value
of which is then found by capitalizing such bal-
ance at a rate 1 per cent. higher than that found
as a matter of fact to be a fair and reasonable
return on the tangible property. People ex rel.
Third Ave. R. Co. v. State Board of Tax Com'rs,
142 N.Y.S. 986, 997, 157 App.Div. 731.
Surplus Earnings
Amount owned by company over and above its
capital and actual liabilities. People v. Com'rs
of Taxes, 76 N.Y. 74.
EARNINGS OF PROSTITUTE. Income derived
from practice of prostitution. State v. Crane, 88
Wash. 210, 152 P. 989.
EARTH. Soil of all kinds, including gravel, clay,
loam, and the like, in distinction from the firm
rock. Dickinson v. Poughkeepsie, 75 N.Y. 76;
Davis v. Commissioners of Sewerage of City of
Louisville, D.C.Ky., 13 F.Supp. 672, 680.
EASE. Comfort, consolation, contentment, en-
joyment, happiness, pleasure, satisfaction. Na-
tional Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E.
291, 295.
EASEMENT. A right in the owner of one par-
cel of land, by reason of such ownership, to use
the land of another for a special purpose not in-
consistent with a general property in the owner.
Hollomon v. Board of Education of Stewart Coun-
ty, 168 Ga. 359, 147 S.E. 882, 884; Frye v. Seb-
bitt, 145 Neb. 600, 17 N.W.2d 617, 621.
A privilege which the owner of one adjacent
tenement hath of another, existing in respect of
their several tenements, by which that owner
against whose tenement the privilege exists is ob-
liged to suffer or not to do something on or in re-
gard to his own land for the advantage of him in
whose land the privilege exists. Termes de la
Ley, Easements.
A privilege, service, or convenience which one
neighbor has of another, by prescription, grant,
or necessary implication, and without profit; as
a way over his land, a gate-way, water-course, and
the like. Kitch. 105; 3 Cruise, Dig. 484. And see
Harrison v. Boring, 44 Tex. 267.
A liberty, privilege, or advantage without profit,
which the owner of one parcel of land may have
in the lands of another. Magnolia Petroleum Co.
v. Caswell, Tex., 1 S.W.2d 597, 600; Hasselbring v.
Koepke, 263 Mich. 466, 248 N.W. 869, 873, 93 A.
L.R. 1170.
The land against which the easement or privilege exists
is called the "servient" tenement, and the estate to which
it is annexed the "dominant" tenement; and their owners
are called respectively the "servient" and "dominant"
owner. These terms are taken from the civil law. Sara-
toga State Waters Corporation v. Pratt, 227 N.Y. 429, 125
N.E. 834, 838; Joachim v. Belfus, 108 N.J.Eq. 622, 156 A.
121, 122; Brasengton v. Williams, 143 S.C. 223, 141 S.E.
375, 382.
Distinguished from "servitude", Stephenson v. St. Louis
Southwestern Ry. Co. of Texas, Tex.Civ.App., 181 S.W. 568,
572; "profit it prendre", Richfield Oil Co. of California v.
Hercules Gasoline Co., 112 Cal. App. 437, 297 P. 73, 75;
"covenant", Lingle Water Users' Ass'n v. Occidental Build-
ing & Loan Ass'n, 43 Wyo. 41, 297 P. 385, 387; "fran-
chise", City of Fort Worth v. Southwestern Bell Tele-
phone Co., C.C.A.Tex., 80 F.2d 972, 974; "restriction",
Kutschinski v. Thompson, 101 N.J.Eq. 649, 138 A. 569, -573;
Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 45 P.2d 846,
848; Morrison v. Fellman, 271 N.Y.S. 436, 150 Misc. 772;
"prescription", Black v. Whitacre, 206 Iowa 1084, 221 N.W.
825.
Affirmative Easement
One where the servient estate must permit
something to be done thereon, as to pass over it,
or to discharge water on it. Miller v. Babb, Tex.
Com.App., 263 S.W. 253, 254.
Apparent Easement
One the existence of which appears from the
construction or condition of one of the tenements,
so as to be capable of being seen or known on in-
spection. Miller v. Skaggs, 79 W.Va. 645, 91 S.E.
536, 537, Ann.Cas.1918D, 929.
Appurtenant Easement
An "incorporeal right" which is attached to and
belongs with some greater and superior right or
something annexed to another thing more worthy
and which passes as incident to it and is incap-
able of existence separate and apart from the par-
ticular land to which it is annexed. Union Falls
Power Co. v. Marinette County, 238 Wis. 134, 298
N.W. 598, 600, 601, 134 A.L.R. 958. One which is
attached to and passes with the dominant tene-
ment as an appurtenance thereof. Cadwalader v.
Bailey, 17 R.I. 495, 23 A. 20, 14 L.R.A. 300; Wal-
ler v. Hildebrecht, 295 Ill. 116, 128 N.E. 807, 809.
Safety Building & Loan v. Lyles, 131 S.C. 540, 128
S.E. 724, 725.
Continuing Easement
One that is self-perpetuating, independent of
human intervention, as, the flow of a stream, or
one which may be enjoyed without any act on the
part of the person entitled thereto, such as a spout
which discharges the water whenever it rains, a
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EASEMENT
drain by which surface water is carried off, win-
dows which admit light and air, and the like.
Starrett v. Baudler, 181 Iowa, 965, 165 N.W. 216,
219, L.R.A.1918B, 528. Also, it is sometimes
termed an "apparent" easement, and defined as
one depending on some artificial structure upon,
or natural conformation of, the servient tene-
ment, obvious and permanent, which constitutes.
the easement or is the means of enjoying it. Fet-
ters v. Humphreys, 18 N.J.Eq. 260; Larsen v. Pet-
erson, 53 N.J.Eq. 88, 30 A. 1094. See, also, Appar-
ent Easement.
Discontinuing Easement
Discontinuous, non-continuous, or non-apparent
easements are those the enjoyment of which can
be had only by the interference of man, as, a right
of way or a right to draw water. Outerbridge v.
Phelps, 45 N.Y.Super.Ct. 570.
Easement by Prescription
A mode of acquiring title to property by Im-
memorial or long-continued enjoyment, and re-
fers to personal usage restricted to claimant and
his ancestors or grantors. J. C. Vereen & Sons,
Inc. v. Houser, 123 Fla. 641, 167 So. 45.
Easement in Gross
Easement in gross is not appurtenant to any
estate in land (or not belonging to any person by
virtue of his ownership of an estate in land) but a
mere personal interest in, or right to use, the land
of another. Weigold v. Bates, 258 N.Y.S. 695, 144
Misc. 395; Joachim v. Belfus, 108 N.J.Eq. 622, 156
A. 121, 122.
Easement of Access
Rie,t of ingress and egress to and from the
premises of a lot owner to a street appurtenant to
the land of the lot owner. Lang v. Smith, 113 Pa.
Super. 559, 173 A. 682, 683.
Easement of Convenience
One which increases the facility, comfort, or
convenience of the enjoyment of the dominant es-
tate, or of some right connected with it.
Easement of Necessity
One in which the easement is indispensable to
the enjoyment of the dominant estate. Richards
v. Trezvant, 185 S.C. 489, 194 S.E. 326, 329.
Equitable Easements
The special easements created by derivation of
ownership of adjacent proprietors from a com-
mon source, with specific intentions as to build-
ings for certain purposes, or with implied privi-
leges in regard to certain uses, are sometimes so
called. A name frequently applied to building re-
strictions in a deed. Werner v. Graham, 181 Cal.
174, 183 P. 945, 947.
Implied Easement
An easement resting upon the principle that,
where the owner of two or more adjacent lots sells
a part thereof, he grants by implication to the
grantee all those apparent and visible easements
which are necessary for the reasonable use of the
property granted, which at the time of the grant
are used by the owner of the entirety for the bene-
fit of the part granted. Farley v. Howard, 68 N.
Y.S. 159, 33 Misc. 57.
Intermittent Easement
One which is usable or used only at times, and
not continuously. Eaton v. Railroad Co., 51 N.H.
504, 12 Am.Rep. 147.
Negative Easement
Those where the owner of the servient estate is
prohibited from doing something otherwise law-
ful upon his estate, because it will affect the dom-
inant estate, (as interrupting the light and air
from the latter by building on the former.) South
Buffalo Stores v. W. T. Grant Co., 274 N.Y.S. 549,
153 Misc. 76; Pierce v. Keator, 70 N.Y. 447, 26 Am.
Rep. 612; Miller v. Babb, Tex.Com.App., 263 S.W.
253, 254. As to "reciprocal negative easement,"
see that title, infra.
Private or Public Easements
A private easement is one in which the enjoy.
ment is restricted to one or a few individuals,
while a public easement is one the right to the
enjoyment of which is vested in the public gen-
erally or in an entire community; such as an ease-
ment of passage on the public streets and high-
ways or of navigation on a stream. Kennelly v.
Jersey City, 57 N.J.Law, 293, 30 A. 531, 26 L.R.A.
281.
Quasi Easement
An "easement," in the proper sense of the word,
can only exist in respect of two adjoining pieces
of land occupied by different persons, and can
only impose a negative duty on the owner of the
servient tenement. Hence an obligation on the
owner of land to repair the fence between his and
his neighbor's land is not a true easement, but is
sometimes called a "quasi easement." Gale,
Easem. 516; Sweet.
Reciprocal Negative Easement
If the owner of two or more lots, so situated
as to bear the relation, sells one with restrictions
of benefit to the land retained, the servitude be-
comes mutual, and, during the period of restraint,
the owner of the lot or lots retained can do noth-
ing forbidden to the owner of the lot sold; this
being known as the doctrine of "reciprocal nega-
tive easement." Sanborn v. McLean, 233 Mich.
227, 206 N.W. 496, 497.
Secondary Easement
One which is appurtenant to the primary or ac-
tual easement; every easement includes such "sec-
ondary easements," that is, the right to do such
things as are necessary for the full enjoyment of
the easement itself. Toothe v. Bryce, 50 N.J.Eq.
589, 25 A. 182.
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EBDOMADARIUS
EAST. In the absence of other words qualifying
its meaning, the word "east" describing boundaries
means due east. Anaheim Sugar Co. v. Orange
County, 181 Cal. 212, 183 P. 809, 813; Livingston
Oil & Gas Co. v. Shasta Oil Co., Tex.Civ.App., 114
S.W.2d 378, 381. See, also, Easterly.
In the customs laws of the United States, the
words "countries east of the Cape of Good Hope"
mean countries with which, formerly, the Unit-
ed States ordinarily carried on commercial inter-
course by passing around that cape. Powers v.
Conley, 101 U.S. 790, 25 L.Ed. 805.
EAST GREENWICH. The name of a royal man-
or in the county of Kent, England; mentioned in
royal grants or patents, as descriptive of the ten-
ure of free socage.
EAST INDIA COMPANY. Originally established
for prosecuting the trade between England and
India, which they acquired a right to carry on ex-
clusively. Since the middle of the last century,
however, the company's political affairs had be-
come of more importance than their commerce.
In 1858, by 21 & 22 Vict. c. 106, the government of
the territories of the company was transferred to
the crown. Wharton.
EASTER. A feast of the Christian church held in
memory of the Saviour's resurrection. The
Greeks and Latins call it "pascha," (passover,)
to which Jewish feast our Easter answers. This
feast has been annually celebrated since the time
of the apostles, and is one of the most important
festivals in the Christian calendar, being that
which regulates and determines the times of all
the other movable feasts. Enc. Lond.
EASTER-OFFERINGS, or EASTER-DUES.
English law. Small sums of money paid to the
parochial clergy by the parishioners at Easter as
a compensation for personal tithes, or the tithe
for personal labor; recoverable under 7 & 8 Wm.
III. c. 6, before justices of the peace.
EASTER TERM. In English law. Formerly One
of the four movable terms of the courts, but aft-
erwards a fixed term, beginning on the 15th of
April and ending on the 8th of May in every year,
though sometimes prolonged so late as the 13th
of May, under St. 11 Geo. IV. and 1 Wm. IV. c. 70.
From November 2, 1875, the division of the legal
year into terms is abolished so far as concerns
the administration of justice. 3 Steph.Comm.
482-486; Mozley & Whiteley.
EASTERLING. A coin struck by Richard II.
which is supposed by some to have given rise to
the name of "sterling," as applied to English mon-
ey.
EASTERLY. This word, when used alone, will
be construed to mean "due east." But that is a
rule of necessity growing out of the indefinite-
ness of the term, and has no application where
other words are used for the purpose of qualify-
ing its meaning. Where such is the case, it means
precisely what the qualifying word makes it
mean. Walker v. City of Los Angeles, 23 Cal.App.
634, 139 R 89, 90. See East.
EASTINUS. An easterly coast or country.
EASTMAN FORMULA. In determining fixed
charges under railroad reorganization plan, the
"Eastman Formula" is that such charges should
not exceed 80 per cent. of the net available for
interest in the three worst years of the last ten.
In re Denver & R. G. W. R. Co., D.C.Colo., 38 F.
Supp. 106, 110.
EAT INDE SINE DIE. In criminal practice.
Words used on the acquittal of a defendant, or
when a prisoner is to be discharged, that he may
go thence without a day, i. e., be dismissed with-
out any further continuance or adjournment.
Dane, Abr. Index.
EATING-HOUSE. Any place where food or re-
freshments of any kind, not including spirits,
wines, ale, beer, or other malt liquors, are pro-
vided for casual visitors, and .sold for consump-
tion therein. Act Cong. July 13, 1866, § 9 (14 St.
at Large, 118). And see Carpenter v. Taylor, 1
Hilt. (N.Y.) 195; State v. Hall, 73 N.C. 253. A
place where the public may go and be served
with meals. Babb v. Elsinger, Sup., 147 N.Y.S.
98, 99.
EAVES. The edge of a roof, built so as to pro-
ject over the walls of a house, in order that the
rain may drop therefrom to the ground instead
of running down the wall. Center St. Church v.
Machias Hotel Co., 51 Me. 413.
EAVES-DRIP. The drip or dropping of water
from the eaves of a house on the land of an ad-
jacent owner; the easement of having the water
so drip, or the servitude of submitting to such
drip; the same as the stillicidium of the Roman
law. See Stillicidium.
EAVESDROPPING. In English criminal law.
The offense of listening under walls or windows,
or the eaves of a house, to hearken after dis-
course, and thereupon to frame slanderous and
mischievous tales. 4 Bl.Comm. 168. It is a mis-
demeanor at common law, indictable at sessions,
and punishable by fine and finding sureties for
good behavior. Id.; Steph.Crim.Law, 109. Sel-
den v. State, 74 Wis. 271, 42 N.W. 218, 17 Am.St.
Rep. 144.
EBB AND FLOW. An expression used formerly
in this country to denote the limits of admiralty
jurisdiction. See United States v. Aborn, 3 Ma-
son, 127, Fed.Cas.No.14,418.
EBBA. In old English law. Ebb. Ebba et fluc-
tus; ebb and flow of tide; ebb and flood. Bract.
fols. 255, 338. The time occupied by one ebb and
flood was anciently granted to persons essoined as
being beyond sea, in addition to the period of
forty days. See Fleta, lib. 6, c. 8, § 2.
EBDOMADARIUS. In ecclesiastical law. An of-
ficer in cathedral churches who supervised the
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EBEREMORTH
regular performance of divine service, and pre-
scribed the particular duties of each person in the
choir.
EBEREMORTH, EBEREMORS, EBEREMUR-
DER. See Aberemurder.
EBRIETY. In criminal law and medical juris-
prudence. Drunkenness; alcoholic intoxication.
Com. v. Whitney, 11 Cush. (Mass.) 479.
ECCE MODO MIRUM, QUOD F(EMINA FERT
BREVE REGIS, NON NOMINANDO VIRUM,
CONJUNCTUM ROBORE LEGIS. Co.Litt. 132b.
Behold, indeed, a wonder! that a woman has the
king's writ without naming her husband, who by
law is united to her.
ECCENTRICITY. In criminal law and medical
jurisprudence. Personal or individual perculiar-
ities of mind and disposition which markedly dis-
tinguish the subject from the ordinary, normal, or
average types of men, but do not amount to men-
tal unsoundness or insanity. Ekin v. McCrack-
en, 11 Phila. (Pa.) 535.
ECCHYMOSIS. In medical jurisprudence. Lo-
calized discoloration in and under the skin; a
livid or black and blue spot; blackness. An ex-
travasation of blood by rupture of capillary ves-
sels, and hence it follows contusion; but it may
exist, as in cases of scurvy, asphyxiation, and oth-
er morbid conditions, without the latter. Ryan
Med.Jur. 172. Ecchymoses produced by blows up-
on a body but a few hours dead cannot be distin-
guished from those produced during life. 1
Witth. & Beck.Med.Jur. 485; 2 Beck, Med.Jur. 22.
It is generally attended by swelling. People v.
Mummert, 50 N.Y.S.2d 699, 703, 183 Misc. 243.
ECCLESIA. Lat. An assembly. A Christian as-
sembly; a church. A place of religious worship.
In the law, generally, the word is used to denote
a place of religious worship, and sometimes a par-
sonage. Spelman.
ECCLESIA ECCLESLE DECIMAS SOLVERE
NON DEBET. Cro.Eliz. 479. A church ought not
to pay tithes to a church.
ECCLESIA EST DOMUS MANSIONALIS OMNI-
POTENTIS DEL 2 Inst. 164. The church is the
mansionhouse of the Omnipotent God.
ECCLESIA EST INFRA ZETATEM ET IN CUS-
TODIA DOMINI REGIS, QUI TENETUR JURA
ET ILEREDITATES EJUSDEM MANU TENERE
ET DEFENDERE. 11 Coke, 49. The church is
under age, and in the custody of the king, who is
bound to uphold and defend its rights and inher-
itances.
ECCLESIA FUNGITUR VICE MINORIS; MELI-
OREM CONDITIONEM SUAM FACERE P0-
TEST, DETERIOREM NEQUAQUAM. Co.Litt.
341. The church enjoys the privilege of a minor;
it can make its own condition better, but not
worse.
ECCLESIA NON MORITUR. 2 Inst. 3. The
church does not die.
ECCLESLE MAGIS FAVENDUM EST QUAM
PERSON,E. Godol. Ecc. Law, 172. The church
is to be more favored than the parson (or an in-
dividual).
ECCLESLE SCULPTURA. The image or sculp-
ture of a church in ancient times was often cut
out or cast in plate or other metal, and preserv-
ed as a religious treasure or relic, and to perpetu-
ate the memory of some famous churches. Ja-
cob.
ECCLESIARCH. The ruler of a church.
ECCLESIASTIC. A clergyman; a priest; a man
consecrated to the service of the church; as, a
bishop, a priest, a deacon.
ECCLESIASTICAL. Pertaining to anything be-
longing to or set apart for the church, as distin-
guished from "civil" or "secular," with regard to
the world. Wharton.
ECCLESIASTICAL AUTHORITIES. In England,
the clergy, under the sovereign, as temporal head
of the church, set apart from the rest of the peo-
ple or laity, in order to superintend the public
worship of God and the other ceremonies of re-
ligion, and to administer spiritual counsel and in-
struction. The several orders of the clergy are:
(1) Archbishops and bishops; (2) deans and
chapters; (3) archdeacons; (4) rural deans; (5)
parsons (under whom are included appropriators)
and vicars; (6) curates. Church-wardens or
sidesmen, and parish clerks and sextons, inas-
much as their duties are connected with the
church, may be considered to be a species of ec-
clesiastical authorities. Wharton.
ECCLESIASTICAL COMMISSIONERS. In Eng-
lish law. A body corporate, erected by St. 6 &
7 Wm. IV, c. 77, empowered to suggest measures
conducive to the efficiency of the established
church, to be ratified by orders in council. Whar-
ton. See 3 Steph.Comm. 156, 157.
ECCLESIASTICAL CORPORATION. See Corpo-
ration.
ECCLESIASTICAL COUNCIL. In New England.
A church court or tribunal, having functions
partly judicial and partly advisory, appointed to
determine questions relating to church discipline,
orthodoxy, standing of ministers, controversies.
between ministers and their churches, differences
and divisions in churches, and the like. Stearns
_ v. First Parish, 21 Pick., Mass., 124; Sheldon v.
Congregational Parish, 24 Pick., Mass., 281.
ECCLESIASTICAL COURTS (called, also, "Courts
Christian"). A generic name for certain courts
having cognizance mainly of spiritual matters. D.
v. D., Del.Super., 20 A.2d 139, 140. A system of
courts in England, held by authority of the sov-
ereign, and having jurisdiction over matters per-
taining to the religion and ritual of the established
church, and the rights, duties, and discipline of
ecclesiastical persons as such. They are as fol-
lows: The archdeacon's court, arches court, con-
sistory court, court of archdeacon, court of pe-
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EDICTAL
culiars, prerogative court, court of delegates, court
of convocation, court of audience, and court of
faculties. 3 Bl.Comm. 64-68. Equitable Life As-
sur. Soc. v. Paterson, 41 Ga. 364, 5 Am.Rep. 535.
ECCLESIASTICAL DIVISION OF ENGLAND.
This is a division into provinces, dioceses, arch-
deaconries, rural deaneries, and parishes.
ECCLESIASTICAL JURISDICTION. Jurisdiction
over ecclesiastical cases and controversies; such
as appertains to the ecclesiastical courts. Short
v. Stotts, 58 Ind. 35.
ECCLESIASTICAL LAW. The body of jurispru-
dence administered by the ecclesiastical courts of
England; derived, in large measure, from the can-
on and civil law. As now restricted, it applies
mainly to the affairs, and the doctrine, discipline,
and worship, of the established church. De Witt
v. De Witt, 67 Ohio St. 340, 66 N.E. 136.
ECCLESIASTICAL MATTER. One that concerns
doctrine, creed, or form of worship of the church,
or the adoption and enforcement within a religious
association of needful laws and regulations for the
government of the membership, and the power of
excluding from such associations those deemed un-
worthy of membership. Olear v. Haniak, 235 Mo.
App. 249, 131 S.W.2d 375, 380.
ECCLESIASTICAL THINGS. This term, as used
in the canon law, includes church buildings,
church property, cemeteries, and property given
to the church for the support of the poor or for
any other pious use. Smith v. Bonhoof, 2 Mich.
115.
ECDICUS. The attorney, proctor, or advocate of
a corporation. 1 Reeve, Eng.Law, 65.
ECHANTILLON. In French law. One of the two
parts or pieces of a wooden tally. That in posses.
sion of the debtor is properly called the "tally,"
the other "echantillon." Poth.Obl. pt. 4, c. 1, art.
2, § 8.
ECHEVIN. In French law. A municipal officer
corresponding with alderman or burgess, and hav-
ing in some instances a civil jurisdiction in cer-
tain causes of trifling importance.
ECHOLALIA. In medical jurisprudence. The
constant and senseless repetition of particular
words or phrases, recognized as a sign or symptom
of insanity or of aphasia.
ECHOUEMENT. In French marine law. Strand-
ing. Emerig.Tr. des Ass. c. 12, s. 13, no. 1.
ECLAMPSIA PARTURIENTIUM. In medical ju-
risprudence. Puerperal convulsions; a convulsive
seizure which sometimes suddenly attacks a wo-
man in labor or directly after, generally attended
by unconsciousness and occasionally by mental
aberration, which may be permanent. The attack
closely resembles the convulsions of epilepsy, and
is often fatal.
ECLECTIC PRACTICE. In medicine. That sys-
tem followed by physicians who select their modes
of practice and medicines from various schools.
Webster.
"Without professing to understand much of medical
phraseology, we suppose that the terms 'allopathic prac-
tice' and 'legitimate business' mean the ordinary method
commonly adopted by the great body of learned and emi-
nent physicians, which is taught in their institutions, estab-
lished by their highest authorities, and accepted by the
larger and more respectable portion of the community. By
'eclectic practice,' without imputing to it, as the counsel
for the plaintiff seem inclined to, an odor of illegality,
we presume is intended another and different system,
unusual and eccentric, not countenanced by the classes
before referred to, but characterized by them as spurious
and denounced as dangerous. It is sufficient to say that the
two modes of treating human maladies are essentially dis-
tinct, and based upon different views of the nat*re and
causes of diseases, their appropriate remedies, and the
modes of applying them." Bradbury v. Bardin, 34 Conn.
453.
ECONOMIZER. As applied to boiler construc-
tion, a contrivance or device in which water is
heated preliminary to entering the boiler proper.
Ithaca Traction Corporation v. Travelers' Indemni-
ty Co., Sup., 177 N.Y.S. 753, 754.
ECONOMY. Frugality; prudent economy. Not
synonymous with "parsimony." Includes that
which pertains to the satisfaction of man's needs.
D'Arcy v. Snell, 162 Or. 351, 91 P.2d 537, 540, 122
A.L.R. 928.
ECRIVAIN. In French marine law. The clerk of
a ship. Emerig.Tr. des Ass. c. 11, s. 3, no. 2.
ECUMENICAL. General; universal; as an ecu-
menical council. Groesbeeck v. Dunscomb, 41
How.Prac. (N.Y.) 344.
EDDERBRECHE. In Saxon law. The offense of
hedge-breaking. Obsolete.
EDESTIA. In old records. Buildings.
EDGE. A line where two surfaces meet. I. T. S.
Rubber Co. v. Essex Rubber Co., D.C., 270 F. 593,
605.
EDGE LEASE. One located on the edge of an oil
bearing structure. Carter Oil Co. v. Mitchell, C.
C.A.Okl., 100 F.2d 945, 947.
EDICT. A positive law promulgated by the sov-
ereign of a country, and having reference either
to the whole land or some of its divisions, but
usually relating to affairs of state. It differs
from a "public proclamation," in that it enacts a
new statute, and carries with it the authority of
law, whereas the latter is, at most, a declaration
of a law before enacted. In Roman law. Some-
times, a citation to appear before a judge. A
"special edict" was a judgment in a case; a "gen-
eral edict" was in effect a statute. See Edictum.
EDICTAL CITATION. In Scotch law. A citation
published at the market-cross of Edinburgh, and
pier and shore of Leith. Used against foreign-
ers not within the kingdom, but having a landed
estate there, and against natives out of the king-
dom. Bell.
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EDICTS
EDICTS OF JUSTINIAN. Thirteen constitutions
or laws of this prince, found in most editions of
the Corpus Juris Civilis, after the Novels. Being
confined to matters of police in the provinces of
the empire, they are of little use.
EDICTUM. In the Roman law. An edict; a man-
date, or ordinance. An ordinance, or law, enacted
by the emperor without the senate; belonging to
the class of constitutiones principis. Inst. 1, 2, 6.
An edict was a mere voluntary constitution of the
emperor; differing from a rescript, in not being
returned in the way of answer; and from a de-
cree, in not being given in judgment; and from
both, in not being founded upon solicitation. Tayl.
Civil Law, 233.
A general order published by the praetor, on en-
tering upon his office, containing the system of
rules by which he would administer justice during
the year of his office. Dig. 1, 2, 2, 10; Mackeld.
Rom.Law, § 35; Tayl.Civil Law, 214. See Calvin.
EDICTUM ANNUUM. The annual edict or system
of rules promulgated by a Roman praetor immedi-
ately upon assuming his office, setting forth the
principles by which he would be guided in deter-
mining causes during his term of office. Mackeld.
Rom.Law, § 36.
EDICTUM PERPETUUM. The perpetual edict.
A compilation or system of law in fifty books, di-
gested by Julian, from the praetor's edicts and oth-
er parts of the Jus Honorarium. All the remains
of it which have come down to us are the extracts
of it in the Digests. Butl.Hor.Jur. 52.
EDICTUM PROVINCIALE. An edict or system of
rules for the administration of justice, similar to
the edict of the praetor, put forth by the procon-
suls and proprEetors in the provinces of the Roman
Empire. Mackeld.Rom.Law, § 36.
EDICTUM THEODORICI. This is the first col-
lection of law that was made after the downfall
of the Roman power in Italy. It was promulgated
by Theodoric, king of the Ostrogoths, at Rome in
A.D. 500. It consists of 154 chapters, in which we
recognize parts taken from the Code and Novellw
of Theodosius, from the Codices Gregorianus and
Hermogenianus, and the Sentential of Paulus. The
edict was doubtless drawn up by Roman writers,
but the original sources are more disfigured and
altered than in any other compilation. This col-
lection of law was intended to apply both to the
Goths and the Romans, so far as its provisions
went; but, when it made no alteration in the Goth-
ic law, that law was still to be in force. Savigny,
Geschichte des R. R.
EDICTUM TRALATITIUM. Where a Roman prw-
tor, upon assuming office, did not publish a wholly
new edict, but retained the whole or a principal
part of the edict of his predecessor ( as was usually
the case) only adding to it such rules as appeared
to be necessary to adapt it to changing social
conditions or juristic ideas, it was called "edictum
tralatitium." Mackeld.Rom.Law, § 36.
EDITION. Any quantity of books put forth to the
bookselling trade at one time by the publisher. 4
K. & J. 656. A new edition is published whenever,
having in his warehouse a certain number of
copies, the publisher issues a fresh batch of them
to the public.
EDITOR. One who directs or supervises the poli-
cies and contributions of a newspaper, magazine,
work of reference, or the like. Brokaw v. Cottrell,
211 N.W. 184, 187, 114 Neb. 858. The term is held
to include not only the person who writes or se-
lects the articles for publication, but he who pub-
lishes a paper and puts it in circulation. Pennoy-
er v. Neff, 95 U.S. 721, 24 L.Ed. 565.
EDITUS. In old English law. Put forth or prom-
ulgated, when speaking of the passage of a stat-
ute; and brought forth, or born, when speaking of
the birth of a child.
EDMUNDS ACT. An act of congress of March 22,
1882, punishing polygamy. See 22 Stat. 31.
EDUCATE. To give proper moral, as well as in-
tellectual and physical, instruction. See Williams
v. MacDougall, 39 Cal. 80; Peck v. Claflin, 105
Mass. 420. To prepare and fit oneself for any
calling or business, or for activity and usefulness
in life. In re Wolfe's Estate, 299 N.Y.S. 99, 102, 164
Misc. 504.
EDUCATION. Comprehends not merely the in-
struction received at school or college, but the
whole course of training, moral, intellectual, and
physical. Education may be particularly directed
to either the mental, moral, or physical powers and
faculties, but in its broadest and best sense it re-
lates to them all. Barbers' Commission of Mobile
County v. Hardeman, 21 So.2d 118, 120, 31 Ala.App.
626. Acquisition of all knowledge tending to train
and develop the individual. Mifchell v. Reeves,
123 Conn. 549, 196 A. 785, 788, 15 A.L.R. 1114.
"Education" is not confined to the improvement and
cultivation of the mind, but may consist of the cultivation
of one's religious or moral sentiments, and likewise may
consist in the development of one's physical faculties.
Commissioners of District of Columbia v. Shannon & Luchs
Const. Co., 57 App.D.C. 67, 17 F.2d 219, 220; Jones v.
Better Business Bureau of Oklahoma City, C.C.A.Okla., 123
F.2d 767, 769.
EDUCATIONAL INSTITUTION. A school, semi-
nary, college, or educational establishment, not
necessarily a chartered institution. Ward Semi-
nary for Young Ladies v. City of Nashville, 129
Tenn. 412, 167 S.W. 113. As used in a zoning ordi-
nance, the term may include not only buildings,
but also all grounds necessary for the accomplish-
ment of the full scope of educational instruction,
including those things essential to mental, moral,
and physical development. Commissioners of Dis-
trict of Columbia v. Shannon & Luchs Const. Co.,
57 App.D.C. 67, 17 F.2d 219, 220.
EDUCATIONAL PURPOSES. Synonymous with
an educational undertaking, and whatever educates
is within the meaning of an "educational under-
taking." Ancient and Accepted Scottish Rite of
Freemasonry v. Board of County Com'rs, 122 Neb.
586, 241 N.W. 93, 95.
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EFFICIENT
EDUCATIONAL TRAINING. Acquisition of in-
formation or inspirational suggestions which cause
the individual to think and act along proper lines.
Jones v. Better Business Bureau of Oklahoma
City, C.C.A.Okl., 123 F.2d 767, 769.
EFFECT, v. To do; to produce; to make; to
bring to pass; to execute; enforce; accomplish.
Vailsburg Motor Corporation v. Fidelity & Casual-
ty Co., 110 N.J.L. 209, 164 A. 408, 409. A be-
lief that a mortgage would "effect" a preference
under the bankruptcy act is equivalent to a belief
that it would "operate as" a preference. Ogden
v. Reddish, D.C.Ky., 200 F. 977, 979.
EFFECT, n. Result. Western Indemnity Co. v.
MacKechnie, Tex.Civ.App., 214 S.W. 456, 460; Beel-
er v. People, 58 Colo. 451, 146 P. 762, 764. The re-
sult which an instrument between parties will
produce in their relative rights, or which a stat-
ute will produce upon the existing law, as dis-
covered from the language used, the forms em-
ployed, or other materials for construing it. The
operation of a law, of an agreement, or an act.
Maize v. State, 4 Ind. 342.
The phrases "take effect," "be in force," "go into opera-
tion," etc., are used interchangeably. Maize v. State, 4
Ind. 342.
With Effect
With success; as, to prosecute an action with
effect. Schutze v. Dabney, Tex.Civ.App., 204 S.W.
342, 347.
EFFECTING LOAN. Renewal of original note
without lending of new money held not "effecting
of loan," within . statute prohibiting officers or
employees of banking department from effecting
loans from state bank. To effect a loan within
such statute means to bring about a loan, to ac-
complish, fulfill, or produce or make a loan. It
means the result or consequence, the bringing into
operation of a loan; while "renewal" is not a loan,
but an extension of the time of payment. State v.
Love, 150 So. 196, 199, 170 Miss. 666, 90 A.L.R. 506.
EFFECTIVE PROCURING CAUSE. The "effec-
tive procuring cause," of sale of realty is ordi-
narily the broker who first secures the serious at-
tention of the customer and is instrumental in
bringing the parties together. In re Cowan's Es-
tate, 13 N.Y.S.2d 374, 377.
EFFECTS. Personal estate or property. See
Johnson v. Olson, 92 Kan. 819, 142 P. 256, 258, L.R.
A.1915E, 327. Movable or chattel property of any
kind. Ettlinger v. Importers' & Exporters' Ins. Co.
of New York, 247 N.Y.S. 260, 262, 138 Misc. 743.
In this sense, the term is more comprehensive than the
word "goods," as including fixtures and choses in action,
which "goods" will not include. Bank v. Byram, 131 Ill.
92, 22 N.E. 842.
Also, every kind of property, real and personal.
Child v. Orton, 119 N.J.Eq. 438, 183 A. 709, 710;
Adams v. Akerlund, 48 N.E. 454, 168 Ill. 632; Cas-
tle v. Castle, C.C.A.Hawaii, 267 F. 521, 523; Erick-
son v. Carlson, 145 N.W. 352, 95 Neb. 182; Peter-
son's Estate, 151 N.W. 66, 68, 168 Iowa 511, L.R.A.
1916A, 469.
In Wlll
Personal property; goods; worldly substance.
If the term is used simpliciter, as in a gift of "all
my effects," it will carry the whole personal es-
tate, unless an intention appears to the contrary.
Schouler, Wills, § 509. In re Mitchell's Will, 38
N.Y.S.2d 673, 674, 675. The meaning of the term is
determined by the context and surrounding cir-
cumstances; Coffman's Adm'r v. Coffman, 131 Va.
456, 109 S.E. 454, 459; and is broad enough to in-
clude property of any kind. In re Lafferty's Es-
tate, 311 Pa. 469, 167 A. 49, 50.
The words "real and personal effects" will em-
brace the whole estate. Hogan v. Jackson, Cowp.
304; The Alpena, D.C., 7 F. 361; 15 M. & W. 450;
Foxall v. McKenney, 3 Cranch C.C. 206, Fed.Cas.
No.5,016.
EFFECTUS SEQUITUR CAUSAM. Wing. 226.
The effect follows the cause.
EFFENDI. Turkish. Master; a title of respect.
EFFET. In France an "effet" is a bill of ex-
change; "effets" means goods, movables, chattels.
In re Steimes' Estate, 270 N.Y.S. 339, 150 Misc.
279.
EFFETS MOBILIERS. Funds or stocks. In re
Steimes' Estate, 270 N.Y.S. 339, 150 Misc. 279.
EFFICIENT. Causing an effect ;—particularly the
result or results contemplated. Tate-Jones & Co.
v. Union Electric Steel Co., 281 Pa. 448, 126 A. 813,
816. The term is not an antonym of "defective."
Adequate in performance or producing properly
a desired effect. Spotts v. Baltimore & 0. R. Co.,
C.C.A.Ind., 102 F.2d 160, 162.
EFFICIENT CAUSE. The working cause; that
cause which produces effects or results; an inter-
vening cause, which produces results which would
not have come to pass except for its interposition,
and for which, therefore, the person who set in
motion the original chain of causes is not respon-
sible. Southland-Greyhound Lines v. Cotten, Tex.
Civ.App., 55 S.W.2d 1066, 1069; The cause which
originates and sets in motion the dominating
agency that necessarily proceeds through other
causes as mere instruments or vehicles in a na-
tural line of causation to the result. That cause
of an injury to which legal liability attaches.
Bole v. Pittsburgh Athletic Club, C.C.A., 205 F. 468,
471, 46 L.R.A.,N.S., 602. The "proximate cause."
Munger v. Hancock, Tex.Civ.App., 271 S.W. 228,
231. Hilles v. Home Owners' Loan Corporation,
348 Mo. 601, 154 S.W.2d 761, 764. The phrase is
practically synonymous with "procuring cause."
Buhrmester v. Independent Plumbing & Heating
Supply Co., Mo.App., 151 S.W.2d 509, 513.
EFFICIENT INTERVENING CAUSE. One not
produced by a wrongful act or omission but inde-
pendent of it, and adequate to bring the injurious
results. State v. Des Champs, 126 S.C. 416, 120 S.
E. 491, 493. A new and independent force which
breaks casual connection between original wrong
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EFFIGY
and injury. Anderson v. Byrd, 133 Neb. 483, OS
N.W. 825, 826; Bennett v. Robertson, 107 Vt. 202,
177 A. 625, 628, 98 A.L.R. 152.
EFFIGY. The figure or corporeal representation
of a person.
EFFLUX. The running, as of a prescribed period
of time to its end; expiration by lapse of time.
Particularly applied to the termination of a lease
by the expiration of the term for which it was
made.
EFFLUXION OF TIME. When this phrase is used
in leases, conveyances, and other like deeds, or
in agreements expressed in simple writing, it in-
dicates the conclusion or expiration of an agreed
term of years specified in the deed or writing, such
conclusion or expiration arising in the natural
course of events, in contradistinction to the de-
termination of the term by the acts of the parties
or by some unexpected or unusual incident or
other sudden event. Brown.
EFFORCIALITER. Forcibly; applied to military
force.
EFFORT. An attempt; an endeavor; a struggle
directed to the accomplishment of an object. Du-
laney v. Burns, 218 Ala. 493, 119 So. 21, 24.
EFFRACTION. A breach made by the use of
force.
EFFRACTOR. One who breaks through; one
who commits a burglary.
EFFUSIO SANGUINIS. In old English law. The
shedding of blood; the mulct, fine, wite, or penal-
ty imposed for the shedding of blood, which the
king granted to many lords of manors. Cowell;
'Tomlins. See Bloodwit.
EFTERS. In Saxon law. Ways, walks, or hedges.
Blount.
EGALITY. Owelty, (q. v.) Co. Litt. 169a.
EGG ALBUMEN. The white of egg. For com-
mercial purposes, dried, uncoagulated egg. In-
ternational Cork Co. v. New Process Cork Co.,
C.C.A.N.Y., 6 F.2d 420, 421.
EGLISE. A church.
EGO. I; myself. This term is used in forming
genealogical tables, to represent the person who
is the object of inquiry.
EGO, TALIS. I, such a one. Words used in de-
scribing the forms of old deeds. Fleta, lib. 3, c.
14, § 5.
EGREDIENS ET EXEUNS. In old pleading. Go-
ing forth and issuing out of (land.) Townsh. Pl.
17.
EGRESS. Often used interchangeably with the
'word "access." C. Hacker Co. v. City of Joliet,
196 Ill.App. 415, 423.
EGYPTIANS, commonly called "Gypsies" (in old
English statutes,) are counterfeit rogues, Welsh
or English, that disguise themselves in speech
and apparel, and wander up and down the coun-
try, pretending to have skill in telling fortunes,
and to deceive the common people, but live chief-
ly by filching or stealing, and, therefore, the stat-
utes of 1 & 2 Mar. c. 4, and 5 Eliz. c. 20, were made
to punish such as felons if they departed not the
realm or continued to a month. Termes de la Ley.
EI INCUMBIT PROBATIO, QUI DICIT, NON QUI
NEGAT; CUM PER RERUM NATURAM FAC-
TUM NEGANTIS PROBATIO NULLA SIT. The
proof lies upon him who affirms, not upon him
who denies; since, by the nature of things, he who
denies a fact cannot produce any proof. Dig. 22,
3, 2; 1 Phill. Ev. 194; 1 Greenl. Ev. § 74; Dran-
guet v. Prudhomme, 3 La. 83; 2 Dan.Ch.Pr. 408.
EI NIHIL TURPE, CUI NIHIL SATIS. To him
to whom nothing is enough, nothing is base. 4
Inst. 53.
EIA, or EY. An island. Cowell.
EIGNE. L. Fr. Eldest; eldest-born. The term
is of common occurrence in the old books. Thus,
bastard eigne means an illegitimate son whose
parents afterwards marry and have a second son
for lawful issue, the latter being called mulier
puisne, (after-born.) Eigne is probably a corrupt
form of the French "cline." 2 Bl.Comm. 248; Litt.
§ 399.
EIGNESSE. See Esnecy.
EIK. In Scotch law. An addition; as, eik to a
reversion, eik to a confirmation. Bell.
EINECIA. Eldership. See Esnecy.
EINETIUS. In English law. The oldest; the
first-born. Spelman.
EIRE, or EYRE. In old English law. A journey,
route, or circuit. Justices in eire were judges who
were sent by commission, every seven years, into
various counties to hold the assizes and hear pleas
of the crown. 3 Bl.Comm. 58.
EIRENARCHA. A name formerly given to a jus-
tice of the peace. In the Digests, the word is
written "irenarcha."
EISDEM MODIS DISSOLVITUR OBLIGATIO
QUiE NASCITUR EX CONTRACTU, VEL QUA-
SI, QUIBUS CONTRAHITUR. An obligation
which arises from contract, or quasi contract, is
dissolved in the same ways in which it is con-
tracted. Fleta, lib. 2, c. 60, § 19.
EISNE. The senior; the oldest son. Spelled, also,
"eigne," "einsne," "aisne," "eign." Termes de la
Ley; Kelham.
EISNETIA, EINETIA. The share of the oldest
son. The portion acquired by primogeniture.
Termes de la Ley; Co.Litt. 166b; Cowell.
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EJIDOS
EITHER. Each of two; the one and the other;
one or the other of two alternatives; one of two.
Dallas Ry. & Terminal Co. v. Allen, Tex., 43 S.W.
2d 165, 170; Alswager v. Dwelle, 70 N.D. 118, 292
N.W. 223, 224, 128 A.L.R. 1150. Often used, how-
ever, with reference to more than two, in which
case it may mean "each" or "any." In re Broun's
Estate, 343 Pa. 19, 21 A.2d 898, 901. Carr-Lowry
Lumber Co. v. Martin, 144 Miss. 106, 109 So. 849,
850; Southern Ry. Co. v. Gaston County, 200 N.
C. 780, 158 S.E. 481, 483. Watson v. Watson, 223
Mass. 425, 111 N.E. 904, 906.
EJECT. To cast, or throw out; to • oust, or dis-
possess; to put or turn out of possession. 3 Bl.
Comm. 198, 199, 200. See Bohannon v. Southern
Ry. Co., 112 Ky. 106, 65 S.W. 169. To expel or
thrust forcibly, as passengers from a train.
Louisville & N. R. Co. v. Ogles, 142 Ga. 720, 83 S.E.
681, 683.
EJECTA. In old English law. A woman ravish-
ed or deflowered, or cast forth from the virtuous.
Blount.
EJECTION. A turning out of possession. 3 Bl.
Comm. 199.
EJECTIONE CUSTODI)E. In old English law.
Ejectment of ward. This phrase, which is the
Latin equivalent for the French "ejectment de
garde," was the title of a writ which lay for a
guardian when turned out of any land of his
ward during the minority of the latter. Brown.
It lay to recover the land or person of his ward,
or both. Fitzh. N.B. 139, L.; Co.Litt. 199.
EJECTIONE FIRM1E. Ejection, or ejectment of
farm. The name of a writ or action of trespass,
which lay at common law where lands or tene-
ments were let for a term of years, and after-
wards the lessor, reversioner, remainder-man, or
any stranger ejected or ousted the lessee of his
term, ferme, or farm, (ipsum a firma ejecit.) In
this case the latter might have his writ of ejec-
tion, by which he recovered at first damages for
the trespass only, but it was afterwards made a
remedy to recover back the term itself, or the re-
mainder of it, with damages. Reg.Orig. 227b;
Fitzh. Nat. Brev. 220, F, G; 3 Bl.Comm. 199; Litt.
§ 322; Crabb, Eng.Law, 290, 448. It is the foun-
dation of the modern action of ejectment.
EJECTMENT. At common law, this was the
name of a mixed action (springing from the earlier
personal action of ejectione firmce) which lay for
the recovery of the possession of land, and for
damages for the unlawful detention of its pos-
session. The action was highly fictitious, being
in theory only for the recovery of a term for
years, and brought by a purely fictitious person, as
lessee in a supposed lease from the real party in
interest.  The latter's title, however, must be
established in order to warrant a recovery, and the
establishment of such title, though nominally a
mere incident, is in reality the object of the ac-
tion. Hence this convenient form of suit came to
be adopted as the usual method of trying titles
to land. See 3 Bl.Comm. 199. French v. Robb, 67
N.J.Law, 260, 51 A. 509, 57 L.R.A. 956, 91 Am.St.
Rep. 433. In England, since the Judicature Act,
ejectment has given place to a new action for
the recovery of land. Ejectment has been mate-
rially modified in many of the states, though still
retaining the name. For the history of ejectment,.
see 3 Sel.Essays in Anglo-Amer. L. Hist. 611.
It was the only mixed action at common law, the whole.
method of proceeding in which was anomalous, and
depended on fictions invented and upheld by the court for
the convenience of justice, in order to escape from the
inconveniences which were found to attend the ancient
forms of real and mixed actions.
It is also a form of action by which possessory
titles to corporeal hereditaments may be tried and
possession obtained.
Ejectment Bill
A bill in equity brought merely for the recovery
of real property, together with an account of the-
rents and profits, without setting out any distinct
ground of equity jurisdiction; hence demurrable.
Crane v. Conklin, 1 N.J.Eq. 353, 22 Am.Dec. 519.
Equitable Ejectment
A proceeding in use in Pennsylvania, brought
to enforce specific performance of a contract for
the sale of land, and for some other purposes,.
which is in form an action of ejectment, but is in
reality a substitute for a bill in equity. Riel v..
Gannon, 161 Pa. 289, 29 A. 55.
Justice Ejectment
A statutory proceeding in Vermont, for the evic
tion of a tenant holding over after termination
of the lease or breach of its conditions. Foss v._
Stanton, 76 Vt. 365, 57 A. 942.
EJECTOR. One who ejects, puts out, or dispos-
sesses another.
Casual Ejector
The nominal defendant in an action of eject-
ment; so called because, by a fiction of law pecu-
liar to that action, he is supposed to come casual
ly or by accident upon the premises and to eject
the lawful possessor. 3 Bl.Comm. 203.
EJECTUM. That which is thrown up by the sea..
Also jetsam, wreck, etc. Warder v. La Belle Cre-
ole, 1 Pet.Adm.Dec. 43, Fed.Cas.No.17,165.
EJECTUS. In old English law. A whore-mong-
er. Blount.
EJERCITORIA. In Spanish law. The name of'
an action lying against a ship's owner, upon the
contracts or obligations made by the master for-
repairs or supplies. It corresponds to the actio
exercitoria of the Roman law. Mackeld. Rom.
Law, § 512.
EJIDOS. In Spanish law. Commons; lands us-
ed in common by the inhabitants of a city, pueblo,.
or town, for pasture, wood, threshing-ground, etc..
Hart v. Burnett, 15 Cal. 554.
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EJURATION
EJURATION. Renouncing or resigning one's
place.
EJUS EST INTERPRETARI CUJUS EST CON-
DERE. It is his to interpret whose it is to enact.
Tayl. Civil Law, 96.
EJUS EST NOLLE, QUI POTEST VELLE. He
who can will, [exercise volition,] has a right to
refuse to will, [to withhold consent.] Dig. 50,
7, 3. This maxim is sometimes written, Ejus est
non nolle qui potest velle, and is translated, "He
may consent tacitly who may consent expressly."
EJUS EST PERICULUM CUJUS EST DOMIN-
IUM AUT CO PMMODUM. He who has the do-
minion or advantage has the risk. Bart.Max. 33.
EJUS NULLA CULPA EST, CUI PARERE NEC-
ESSE SIT. No guilt attaches to him who is com-
pelled to obey. Dig. 50, 17, 169, pr. Obedience to
existing laws is a sufficient extenuation of guilt
before a civil tribunal. Broom, Max. 12, note.
EJUSDEM GENERIS. Of the same kind, class,
or nature.
In the construction of laws, wills, and other instruments,
the "ejusdem generis rule" is, that where general words
follow an enumeration of persons or things, by words of a
particular and specific meaning, such general words are not
to be construed in their widest extent, but are to be held
as applying only to persons or things of the same general
kind or class as those specifically mentioned. Black, Interp.
of Laws, 141; Goldsmith v. U. S., C.C.A.N.Y., 42 F.2d
133, 137; Aleksich v. Industrial Accident Fund, 116 Mont.
69, 151 P.2d 1016, 1021. The rule, however, does not neces-
sarily require that the general provision be limited in its
scope to the identical things specifically named. Nor does
it apply when the context manifests a contrary intention.
The maxim "ejusdem generis," is only an illustration of
the broader maxim, "noscitur a sod's." State v. Western
Union Telegraph Co., 196 Ala. 570, 72 So. 99, 100.
ELABORARE. In old European law. To gain,
acquire, or purchase, a g  by labor and industry.
ELABORATUS. Property which is the acquisi-
tion of labor. Spelman.
ELASTIC. Pertaining to a substance having the
property of returning or springing back to its
original form after being disarranged by pressure
or applied force;—to be distinguished from "plas-
tic," which applies to a substance capable of being
molded and pressed into form. Diamond Patent
Co. v. Webster Bros., C.C.A.Cal., 249 F. 155, 157;
Kitson Co. v. Lattimer-Stevens Co., C.C.A.Pa., 37
F.2d 562, 563.
ELDER BRETHREN. A distinguished body of
men, elected as masters of Trinity House, an insti-
tution incorporated in the reign of Henry VIII.,
charged with numerous important duties relating
to the marine, such as the superintendence of
lighthouses. Mozley & Whitley; 2 Steph.Comm.
502. The full title of the corporation is Elder
Brethren of the Holy and Undivided Trinity.
ELDER TITLE. A title of earlier date, but com-
ing simultaneously into operation with a title of
younger origin, is called the "elder title," and pre-
vails.
ELDEST. He or she who has the greatest age.
The eldest son is the first-born, the primo-genitus;
L.R. 2 App.Cas. 698; L.R. 12 Ch.Div. 171; Ander-
son v. Anderson, C.C.A.S.C., 221 F. 871, 874. If
there is only one son, he may still be described as
the "eldest." L.R. 7 H.L. 644.
ELECTA UNA VIA, NON DATUR RECURSUS
AD ALTERAM. He who has chosen one way can-
not have recourse to another. 10 Toull. no. 170.
ELECTED. The word "elected," in its ordinary
signification, carries with it the idea of a vote,
generally popular, sometimes more restricted, and
cannot be held the synonym of any other mode of
filling a position. Kimberlin v. State, 130 Ind.
120, 29 N.E. 773, 14 L.R.A. 858, 30 Am.St.Rep. 208.
ELECTIO EST INTERNA LIBERA ET SPON-
TANEA SEPARATIO UNIUS REI AB ALIA,
SINE COMPULSIONE, CONSISTENS IN ANIMO
ET VOLUNTATE. Dyer, 281. Election is an in-
ternal, free, and spontaneous separation of one
thing from another, without compulsion, consist-
ing in intention and will.
ELECTIO SEMEL FACTA, ET PLACITUM TES-
TATUM NON PATITUR REGRESSUM. Co.Litt.
146. Election once made, and plea witnessed (or
intent shown), suffers not a recall.
ELECTION. The act of choosing or selecting
one or more from a greater number of persons,
things, courses, or rights. The choice of an al-
ternative. State v. Tucker, 54 Ala. 210.
The internal, free, and spontaneous separation of one
thing from another, without compulsion, consisting in
intention and will. Dyer, 281.
The selection of one person from a specified
class to discharge certain duties in a state, cor-
poration, or society. Smith v. McQueen, 232 Ala.
90, 166 So. 788, 791.
With respect to the choice of persons to fill public office
or the decision of a particular public question or public
policy the term means in ordinary usage the expression by
vote of the will of the people or of a somewhat numerous
body of electors. State v. State Board of Canvassers, 78
S.C. 461, 59 S.E. 145. But this is not necessarily so, for the
term may apply to the selection by a city council of one
of their number as mayor.
"Election" ordinarily has reference to a choice or selec-
tion by electors, while "appointment" refers to a choice or
selection by an individual, as the Governor, or an official
body. Board of Education of Boyle County v. McChesney,
235 Ky. 692, 32 S.W.2d 26, 27. But the terms are some-
times used interchangeably. Van Cleve v. Wallace, 216
Minn. 500, 13 N.W.2d 467, 469.
A primary election is an "election" within the constitu-
tional provision. United States v. Classic, 61 S.Ct. 1031,
1039, 313 U.S. 299, 85 L.Ed. 1368; Ex parte Hawthorne, 116
Fla. 608, 156 So. 619, 622, 96 A.L.R. 572. But the contrary
view has been expressed, Mathes v. State, 173 Tenn. 511,
121 S.W.2d 548, 549; People ex rel. Lindstrand v. Emmer-
son, 333 Ill. 606, 165 N.E. 217, 223, 62 A.L.R. 912. Refer-
endum elections are "elections". Masters v. Duval County,
114 Fla. 205, 154 So. 172, 176. To the contrary, Vulcan Last
Co. v. State, 194 Wis. 636, 217 N.W. 412, 414.
The choice which is open to a debtor who is
bound in an alternative obligation to select either
one of the alternatives.
Equitable Election
See Equitable Election.
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ELECTION
General Election
One at which the officers to be elected are
such as belong to the general government,—that
is, the general and central political organization
of the whole state; as distinguished from an elec-
tion of officers for a particular locality only. Al-
so, one held for the selection of an officer after
the expiration of the full term of the former of-
ficer; thus distinguished from a special election,
which is one held to supply a vacancy in office
occurring before the expiration of the full term
for which the incumbent was elected. Downs v.
State, 78 Md. 128, 26 A. 1005. One that regularly
recurs in each election precinct of the state on
a day designated by law for the selection of of-
ficers, or is held in such entire territory pursuant
to an enactment specifying a single day for the
ratification or rejection of one or more measures
submitted to the people by the Legislative As-
sembly, and not for the election of any officer.
Bethune v. Funk, 166 P. 931, 932, 85 Or. 246. One
that is held throughout the entire state or terri-
tory. Territory v. Ricordati, 18 N.M. 10, 132 P.
1139, 1140. An election for the choice of a na-
tional, state, judicial, district, municipal, county,
or township official, required by law to be held
regularly at a designated time, to fill a new of-
fice or a vacancy in an office at the expiration
of the full term thereof. Eakle v. Board of Edu-
cation of Independent School Dist. of Henry, 97
W.Va. 434, 125 S.E. 165, 168. In statutes, the term
may include a primary election. Kelso v. Cook,
184 Ind. 173, 110 N.E. 987, 993, Ann.Cas.1918E, 68.
Contra, under a municipal charter, City Council
of San Jose v. Goodwin, 196 Cal. 274, 237 P. 548,
549. In Vermont, the term is used throughout the
Public Statutes to designate what before had com-
monly been known as "freeman's meeting."
Martin v. Fullam, 97 A. 442, 445, 90 Vt. 163.
In Criminal Law
The choice, by the prosecution, upon which of
several counts in an indictment (charging distinct
offenses of the same degree, but not parts of a
continuous series of acts) it will proceed. Jack-
son v. State, 95 Ala. 17, 10 So. 657.
In Practice
The liberty of choosing (or the act of choosing)
one out of several means afforded by law for the
redress of an injury, or one out of several avail-
able forms of action.
An "election of remedies" arises when one having two
coexistent but inconsistent remedies chooses to exercise
one, in which event he loses the right to thereafter exer-
cise the other. Mosher Mfg. Co. v. Eastland W. F. & G. R.
Co., Tex.Civ.App., 259 S.W. 253, 255.
An "election of remedies" is choosing between two or
more different and coexisting modes of procedure and
relief allowed by law on the same state of facts. Pacific
Mut. Life Ins. Co. of California v. Rhame, D.C.S.C., 32
F.Supp. 59, 63; Doggett Lumber Co. v. Perry, 212 N.C. 713,
194 S.E. 475, 478.
"Election of remedies" is a species of estoppel in pals.
Mansfield v. Pickwick Stages, Northern Division, 191 Cal.
129, 215 P. 389, 390.
Black's Law Dictionary Revised 4th Ed.-39
In the Law of Wills
A widow's election is her choice whether she
will take under the will or under the statute;
that is, whether she will accept the provision
made for her in the will, and acquiesce in her
husband's disposition of his property, or disre-
gard it and claim what the law allows her. Logan
v. Logan, Tex.Civ.App., 112 S.W.2d 515, 518;
Schlimme v. Schlimme, 364 Ill. 303, 4 N.E.2d 369,
370.
An "election under the will" means that a lega-
tee or devisee under a will is put to the choice of
accepting the beneficial interest offered by the
donor in lieu of some estate which he is entitled
to, but which is taken from him by the terms of
the will. McDermid v. Bourhill, 101 Or. 305, 199
P. 610, 612, 22 A.L.R. 428.
Primary Election
An election by the voters of a ward, precinct,
or other small district, belonging to a particular
party, of representatives or delegates to a con-
vention which is to meet and nominate the candi-
dates of their party to stand at an approaching
municipal or general election. State v. Woodruff,
68 N.J.Law, 89, 52 A. 294. Also, an' election to
select candidates for office by a political organiza-
tion, the voters being restricted to the members
or supporters of such organization. Kelso v.
Cook, 184 Ind. 173, 110 N.E. 987, Ann.Cas.1918E,
68. They are not in reality elections but are
merely nominating devices. Van Dyke v. Thomp-
son, 136 Tenn. 136, 189 S.W. 62, 66.
Regular Election
One recurring at stated times fixed by law.
State v. Andresen, 110 Or. 1, 222 P. 585, 587. A gen-
eral, usual, or stated election. When applied to
elections, the terms "regular" and "general" are
used interchangeably and synonymously. The
word "regular" is used in reference to a general
election occurring throughout the state. State v.
Conrades, 45 Mo. 47; Ward v. Clark, 35 Kan. 315,
10 P. 827.
Result of Election
Usually, the expression of the will of the voters
as determined by a count of the ballots. Cipow-
ski v. Calumet City, 322 Ill. 575, 153 N.E. 613, 614.
Special Election
An election for a particular emergency; out of
the regular course; as one held to fill a vacancy
arising by death of the incumbent of the office.
State v. Andresen, 110 Or. 1, 222 P. 585, 587. In
a statute, any election at which officers are not
chosen. Hutchins v. City of Des Moines, 176 Iowa
189, 157 N.W. 881, 883. In determining whether
an election is special or general, regard must be
had to the subject-matter as well as date of the
election, and, if an election occurs throughout
state uniformly by direct operation of law, it is
a "general election," but, if it depends on employ-
ment of special preliminary proceeding peculiar
to process which may or may not occur, and the
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ELECTION
election is applicable only to a restricted area
less than whole state, it is a "special election."
Hill v. Hartzell, 121 Or. 4, 252 P. 552, 555.
ELECTION AUDITORS. In English law. Offi-
cers annually appointed, to whom was committed
the duty of taking and publishing the account of
all expenses incurred at parliamentary elections.
See 17 & 18 Vict. c. 102, §§ 18, 26-28. But these
sections have been repealed by 26 Vict. c. 29,
which throws the duty of preparing the accounts
on the declared agent of the candidate, and the
duty of publishing an abstract of it on the return-
ing officer. Wharton.
ELECTION CONTEST. A contest in behalf of
one who has failed of success in election against
right of one who has been declared or determined
by proper authority to have been successful.
State ex rel. Ingles v. Circuit Court of Spink
County, 63 S.D. 313, 258 N.W. 278.
ELECTION DISTRICT. A subdivision of terri-
tory, whether of state, county, or city, the bound-
aries of which are fixed by law, for convenience
in local or general elections. Lane v. Otis, 68 N.J.
Law, 656, 54 A. 442.
The term has been held not to refer to senator-
ial district. Appeal of Phillips, 262 Pa. 396, 105 A.
547, 548.
ELECTION DOWER. A name sometimes given
to the provision which a law or statute makes for
a widow in case she "elects" to reject the provi-
sion made for her in the will and take what the
statute accords. Stanton v. Leonard, 344 Mo. 998,
130 S.W.2d 487, 489.
ELECTION, ESTOPPEL BY. An estoppel which
arises by a choice between inconsistent remedies.
Aladdin Temple Ben. Ass'n, D. 0. K. K. v. Ameri-
can Standard Life Ins. Co., 235 Ala. 431, 179 So.
243, 245.
An estoppel predicated on a voluntary and intelligent
action or choice of one of several things which is incon-
sistent with another, the effect of the estoppel being to
prevent the party so choosing from afterwards reversing
his election or disputing the state of affairs or rights of
others resulting from his original choice. Yates v. Hurd,
8 Colo. 343, 8 Pac. 575.
The doctrine of "estoppel by election" against benefici-
ary who has elected to take favorable provisions of will
from objecting to other provisions of will applies only
where will undertakes to bestow a gift and also deprive
donee of a prior existing right, thus confronting devisee
with alternative of accepting devise and renouncing prior
right or of retaining latter and renouncing devise. Mason
& Mason v. Brown, Tex.Civ.App., 182 S.W.2d 729, 733.
ELECTION JUDGES. In English law. Judges
of the high court selected in pursuance of 31 &
32 Vict. c. 125, § 11, and Jud. Act 1873, § 38, for the
trial of election petitions.
ELECTION PETITIONS. Petitions for inquiry
into the validity of elections of members of par-
liament when it is alleged that the return of a
member is invalid for bribery or any other rea-
son.
ELECTION RETURNS. The report made to the
board of canvassers of the number of votes cast
for each candidate, or proposition voted upon by
those charged by law with the duty of counting
or tallying the votes for or against the respective
candidates or propositions. Spear v. Marshall,
95 Utah 62, 79 P.2d 15, 16.
ELECTIONES FIANT RITE ET LIBERE SINE
INTERRUPTIONE ALIQUA. Elections should
be made in due form, and freely, without any
interruption. 2 Inst. 169.
ELECTIVE. Dependent upon choice; bestowed
or passing by election. Also pertaining or relat-
ing to elections; conferring the right or power to
vote at elections.
ELECTIVE FRANCHISE. The right of voting at
public elections; the privilege of qualified voters
to cast their ballots for the candidates they favor
at elections authorized by law. People v. Barber,
48 Hun, N.Y. 198; State v. Staten, 6 Cold. Tenn.
255; Xippas v. Commonwealth, 141 Va. 497, 126
S.E. 207, 209.
ELECTIVE OFFICE. One which is to be filled
by popular election. One filled by the direct exer-
cise of the voters' franchise. In re Opinion of the
Justices, 83 N.H. 589, 139 A. 180, 183.
ELECTOR. A duly qualified voter; one who has
a vote in the choice of any officer; a constituent.
DeBauche v. City of Green Bay, 227 Wis. 148, 277
N.W. 147, 148. One who elects or has the right
of choice, or who has the right to vote for any
functionary, or for the adoption of any measure.
Aczel v. United States, C.C.A.Ind., 232 F. 652, 657.
In a narrower sense, one who has the general
right to vote, and the right to vote for public of-
ficers. One authorized to exercise the elective
franchise. McEvoy v. Christensen, 178 Iowa, 1180,
159 N.W. 179, 181. But a woman citizen, though
having such general right and authority to vote,
may nevertheless not be an "elector" entitled to
have her name put on a jury list, in view of a
state constitution and statute. People v. Barnett,
319 Ill. 403, 150 N.E. 290, 291.
While the terms "electors" and "voters" are sometimes
used interchangeably, their meaning is not precisely the
same, "electors" being properly applied to all those enti-
tled to vote, whereas "voters" appropriately designates
only those actually voting. State ex rel. Chaney v. Grin-
stead, 314 Mo. 55, 282 S.W. 715, 719. A fortiori, "electors"
is a broader term than "registered voters." City of Day-
ton, Ohio, v. City Ry. Co., C.C.A.Ohio, 16 F.2d 401, 405.
One of the persons chosen to comprise the "elec-
toral college" (q. v.).
Also, the title of certain German princes who
had a voice in the election of the Holy Roman
Emperors. The office of elector in some instances
became hereditary and was connected with terri-
torial possessions.
Sometimes, one who exercises the right of elec-
tion in equity. Brett, L. Cas. Mod. Eq. 257.
Registered Qualified Elector
One possessing the constitutional qualifications,
and registered under the registration statute.
Minges v. Board of Trustees of City of Merced,
27 Cal.App. 15, 148 P. 816, 817.
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ELEGIT
ELECTORAL. Pertaining to electors or elec-
tions; composed or consisting of electors.
ELECTORAL COLLEGE. A name sometimes
given, in the United States, to the college or body
of electors of a state chosen to elect the president
and vice-president; also, the whole body of such
electors, composed of the electoral colleges of the
several states. Webster; Cent. Dict.; 2 Sto.
Const. § 1463; 1 Hare, Am.Const.L. 219; Stevens,
Sources of the Constitution of the U. S. 153, note;
Black, Const.L. 86; 1 Calhoun's Works, 175.
ELECTORAL COMMISSION. A commission cre-
ated by an act of congress of January 29, 1877,
to decide certain questions arising out of the
presidential election of November, 1876, in which
Hayes and Wheeler had been candidates of the
Republican party and Tilden and Hendricks of
the Democratic party.
ELECTRIC CONDENSER. A device by which
excesses of current are stored and released, act-
ing as a sort of elastic cushion for its variations.
It is made up of two electrodes, anode and cath-
ode, separated by a nonconductor, the dielectric.
The capacity of the condenser depends upon the
dielectric, and varies inversely with its thickness.
Aerovox Corporation v. Concourse Electric Co.,
C.C.A.N.Y., 65 F.2d 386, 387. A reservoir of elec-
trical energy. Aurynger v. R C A Mfg. Co., D.C.
Md., 35 ,F.Supp. 69.
ELECTRICITY. A highly subtle imponderable
fluid, whose presence or influence is only known
by its effect. Myers v. Portland Ry., Light &
Power Co., 68 Or. 599, 138 P. 213. An imponder-
able and invisible agent producing light, heat,
chemical decomposition, and other physical phen-
omena. United States v. City and County of San
Francisco, D.C.Cal., 23 F.Supp. 40, 52.
ELECTROCARDIOGRAPHY. The recording in
the form of a graph of certain minute electric
currents produced by the human heart in the
course of its action. Nichols v. Sanborn Co., D.C.
Mass., 35 F.Supp. 707, 708.
ELECTROCUTE. To put (a criminal) to death
by passing through the body a current of electri-
city of high power; also, by extension, to kill
by an electric current. Ferguson v. State, 90 Fla.
105, 105 So. 840.
The word is a hybrid, and has met with the disapproval
of some for that reason. "This barbarism jars the unhappy
latinist's nerves much more cruelly than the operation
denoted jars those of its victim." Fowler, Dict. of Mod.
English Usage (1926), p. 130. "To one having even an ele-
mentary knowledge of Latin grammar this word is no less
than disgusting, and the thing meant by it is felt to be
altogether too good for the word's inventor." Bierce,
Write it Right (1909), p. 24. It is not included in the New
English Dict. (Oxford, 1897), but is listed without comment
in the New Cent. Diet. (1927) and also in Funk & Wag-
nalls' New Standard Dict. (1925), which spells it "electri-
cute." "It is considered by many to be inelegant, but is
widely used and has no accepted equivalent.' Webster,
New Internatl. Dict. (1927). The word is "now in estab-
lished use, though formerly much criticized from the
learned point of view because of the manner of its forma-
tion." Krapp, Comprehensive Guide to Good English
(1927), p. 218.
ELECTROCUTION. A method of punishment of
death inflicted by causing to pass through the
body of the convicted person a current of elec-
tricity. See 1 Witth. & Beck. Med. Jur. 663; Peo-
ple v. Durston, 119 N.Y. 569. See Electrocute.
ELECTROLYSIS. The decomposition of a metal
solution in water, liquid ammonia, etc., accom-
panied by decomposition of the water into oxy-
gen and hydrogen or of a mass of molten metal
by having an electric current passed through it,
Peoria Waterworks Co. v. Peoria Ry. Co., C.C.Ill.,
181 F. 990.
As applied to water pipes electrolysis is the stripping off
of small particles of the iron when a suitable electrolytic
solution is present leaving the carbon of which the pipe is
partly composed intact. Peoria Waterworks Co. v. Peoria
R. Co., C.C.Ill., 181 F. 990.
The term covers a wide variety of acts, ranging from the
removal of superfluous hair by electricity to the electrocu-
tion of a human being. People v. Lehrman, 296 N.Y.S.
580, 581, 251 App. Div. 451.
ELECTROLYTE. A substance which when dis-
solved in liquid is capable of conducting an elec-
tric current. Lee v. Congress Beauty Equipment
Co., D.C.Mass., 48 F.Supp. 827, 829; Ruben v.
Ariston Laboratories, D.C.Ill., 40 F.Supp. 551, 563.
ELEEMOSYNA REGIS, and ELEEMOSYNA AR-
ATRI, or CARUCARUM. A penny which King
Ethelred ordered to be paid for every plow in
England towards the support of the poor. Leg.
Ethel. c. 1.
ELEEMOSYNIE. Possessions belonging to the
church. Blount.
ELEEMOSYNARIA. The place in a religious
house where the common alms were deposited,
and thence by the almoner distributed to the poor.
In old English law, the aumerie, aumbry, or am-
bry; words still used in common speech in the
north of England, to denote a pantry or cup-
board. Cowell. The office of almoner. Cowell.
ELEEMOSYNARIUS. In old English law. An
almoner, or chief officer, who received the elee-
mosynary rents and gifts, and in due method dis-
tributed them to pious and charitable uses. Co-
well; Wharton.
The name of an officer (lord almoner) of the
English kings, in former times, who distributed
the royal alms or bounty. Fleta, lib. 2, c. 23.
ELEEMOSYNARY. Relating to the distribution
of alms, bounty, or charity; charitable. In re
Bailey's Estate, 19 Cal.App.2d 135, 65 P.2d 102, 103.
ELEEMOSYNARY CORPORATION. A private
corporation created for charitable and benevolent
purposes. Society for Propagation of Gospel v.
New Haven, 8 Wheat. 464, 5 L.Ed. 662; 1 Bl.
Comm. 471. See Corporations.
ELEGANTER. In the civil law. Accurately;
with discrimination. Veazie v. Williams, 3 Story,
611, 636, Fed.Cas.No.16,907.
ELEGIT. (Lat. He has chosen.) This is the
name, in English practice, of a writ of execution
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ELEMENT
first given by the statute of Westm. 2 (13 Edw. I.
c. 18) either upon a judgment for a debt or dam-
ages or upon the forfeiture of a recognizance
Taken in the king's court. It is so called because it
is in the choice or election of the plaintiff whether
he will sue out this writ or a fi. fa. By it the de-
fendant's goods and chattels are appraised and
all of them (except oxen and beasts of the plow)
are delivered to the plaintiff, at such reasonable
appraisement and price, in part satisfaction of
his debt. If the goods are not sufficient, then the
moiety of his freehold lands, which he had at the
time of the judgment given, are also to be deliv-
ered to the plaintiff, to hold till out of the rents
and profits thereof the debt be levied, or till the
defendant's interest be expired. During this per-
iod the plaintiff is called "tenant by elegit," and
his estate, an "estate by elegit." This writ, or
its analogue, is in use in some of the United
States, as Virginia and Kentucky. See 3 Bl.
Comm. 418; North American F. Ins. Co. v. Gra-
ham, 5 Sandf. (N.Y.) 197.
ELEMENT. Material; substance. Hoskins Mfg.
Co. v. General Electric Co., D.C.I11., 212 F. 422,
427.
Also, one of the simple substances or principles
of which, according to early natural philoso-
phers, the physical universe is composed, the four
elements pointed out by Empedocles being air,
water, earth, and fire. Webster. See Elements.
ELEMENTS. The forces of nature. The ulti-
mate undecomposable parts which unite to form
anything. Leahy v. Wenonah Theater Co., 251
Mich. 594, 232 N.W. 184, 185. Popularly, fire, air,
earth, and water, anciently supposed to be the
four simple bodies of which the world was com-
posed. Encyc. Dict. Often applied in a particu-
lar sense to wind and water, as "the fury of the
elements." Cent. Dict. Fire is one of the ele-
ments included in the expression "damages by the
elements" as used in a lease of a building. O'Neal
v. Bainbridge, 94 Kan. 518, 146 P. 1165, 1167, Ann.
Cas.1917B, 293. The same is true of water. Mills
v. United States, 52 Ct.C1. 452, 458. It has also
been said that "damages by the elements" means
the same thing as "damages by the act of God."
Van Wormer v. Crane, 51 Mich. 363, 16 N.W. 686,
47 Am.Rep. 582.
ELEVATOR. A building containing one or more
mechanical elevators, especially a warehouse for
the storage of grain; a hoisting apparatus; a lift;
4 car or cage for lifting and lowering passengers
or freight in a hoistway. Cent. Dict.
In Insurance Law
The term has been held not to be limited to
the car, or platform, but to include the elevator
shaft. London Guarantee & Accident Co. v. Ladd,
C.C.A.Mich., 299 F. 562, 565; Boles v. Royal Union
Life Ins. Co., 219 Iowa 178, 257 N.W. 386, 96 A.L.
R. 1400. It has also been held to include the ma-
chinery to which the car is attached, and by which
it is operated; and the fixed equipment necessary
to operate the elevator. The term has been inter-
preted as meaning only a passenger elevator.
Jahns & Knuth Co. v. American Indemnity Co.,
182 Wis. 556, 196 N.W. 569, 571.
Passenger Elevator
Any elevator ordinarily or customarily used
for conveying passengers, though also used for
conveying freight, and though not of any parti-
cular form laid in any particular way or with any
particular kind of gates or safety contriv,ances.
Wilmarth v. Pacific Mut. Life Ins. Co. of Cali-
fornia, 168 Cal. 536, 143 P. 780, 782, Ann.Cas.1915B,
1120.
ELIGIBILITY. Proper to be chosen; qualified to
be elected; legally qualified. Rainey v. Taylor,
166 Ga. 476, 143 S.E. 383; State ex rel. Evans v.
Wheatley, 197 Ark. 997, 125 S.W.2d 101, 103. A.
word which, when used in connection with an of-
fice, where there are no explanatory words indi-
cating that it is used with reference to the time of
election, may be deemed to refer to the qualifica-
tion to hold the office rather than to be elected.
Bradfield v. Avery, 16 Idaho, 769, 102 P. 687, 23 L.
R.A.,N.S., 1228. See Eligible.
ELIGIBLE. Fit to be chosen. State ex rel. Sund-
for v. Thorson, 72 N.D. 246, 6 N.W.2d 89, 92, 143
A.L.R. 599. Capable of serving, legally qualified
to serve. State v. Johnson, 123 S.C. 50, 115 S.E.
748, 749. Capable of being chosen, as a candidate
for office. Board of Com'rs of Guadalupe County
v. District Court of Fourth Judicial Dist., 29 N.
M. 244, 223 P. 516, 522. Also, capable of holding
office. State v. Wait, 95 Neb. 806, 146 N.W. 1048,
1049.
ELIMINATION. In old English law. The act of
banishing or turning out of doors; rejection.
ELINGUATION. The punishment of cutting out
the tongue.
ELISORS. In practice. Electors or choosers.
Persons appointed by the court to execute writs
of venire, in cases where both the sheriff and
coroner are disqualified from acting, and whose
duty is to choose—that is, name and return—the
jury. 3 Bl.Comm. 355; Doherty v. Kalmbach, 87
F.2d 539, 541, 66 App.D.C. 322.
Persons appointed to execute any writ, In de-
fault of the sheriff and coroner, are also called
"elisors." See Bruner v. Superior Court, 92 Cal.
239, 28 Pac. 341. An elisor may be appointed to
take charge of a jury retiring to deliberate upon
a verdict, when both sheriff and coroner are dis-
qualified or unable to act. People v. Fellows, 122
Cal. 233, 54 Pac. 830.
ELL. A measure of length, answering to the
modern yard. 1 Bl.Comm, 275.
ELLENBOROUGH'S ACT. An English statute
(43 Geo. III. c. 58) punishing offenses against the
person.
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EMANCIPATION
ELLIPSIS. Omission of words or clauses neces-
sary to complete the construction, but not neces-
sary to convey the meaning. State v. Staub, 182
La. 1040, 162 So. 766.
ELOGIUM. In the civil law. A will or testament.
ELOIGNE. (Fr. eloigner, to remove to a distance;
to remove afar off.) In practice. A return to a
writ of replevin, when the chattels have been
removed out of the way of the sheriff.
ELOIGNMENT. The getting a thing or person
out of the way; or removing it to a distance, so
as to be out of reach. Garneau v. Mill Co., 8
Wash. 467, 36 P. 463.
ELONGATA. In practice. Eloigned; carried
away to a distance. The old form of the return
made by a sheriff to a writ of replevin, stating
that the goods or beasts had been eloigned; that
is, carried to a distance, to places to him unknown.
3 Bl.Comm. 148; 3 Steph.Comm. 522; Fitzh. Nat.
Brev. 73, 74; Archb. N. Pract. 552. The word
eloigne is sometimes used as synonymous with
elongata.
ELONGATUS. Eloigned. A return made by a
sheriff to a writ de homine replegiando, stating
that the party to be replevied has been eloigned,
or conveyed out of his jurisdiction. 3 Bl.Comm.
129.
ELONGAVIT. In England, where in a proceeding
by foreign attachment the plaintiff has obtained
judgment of appraisement, but by reason of some
act of the garnishee the goods cannot be ap-
praised, (as where he has removed them from
the city, or has sold them, etc.,) the serjeant-at-
mace returns that the garnishee has eloigned
them, i. e., removed them out of the jurisdiction,
and on this return (called an "elongavit") judg-
ment is given for the plaintiff that an inquiry be
made of the goods eloigned. This inquiry is set
down for trial, and the assessment is made by a
jury after the manner of ordinary issues. Sweet.
ELOPEMENT. The act of a wife who voluntarily
deserts her husband to go away with and cohabit
with another man. 2 Bl.Comm. 130; State v.
O'Higgins, 178 N.C. 708, 100 S.E. 438. The depar-
ture of a married woman from her husband and
dwelling with an adulterer. Cowell; Tomlin. Al-
so, the act of a man in going away with a woman
who has voluntarily left her husband, to indulge in
sexual intercourse with her. State v. Hopp, 186
N.C. 405, 119 S.E. 769, 773.
To constitute an elopement, the wife must not only leave
the husband, but go beyond his actual control; for if she
abandons the husband, and goes and lives in adultery in a
house belonging to him, it is said not to be an elopement.
Cogswell v. Tibbetts, 3 N.H. 42.
In a popular sense, also, the act of an unmar-
ried woman in secretly leaving her home with a
man, especially with a view to marriage without
her parents' consent.
ELSEWHERE. In another place; in any other
place. See 1 Vern. 4, and note; 3 P.Wms. 56;
Azbill v. State, 19 Ariz. 499, 172 P. 658, 659; Su-
preme Ruling of Fraternal Mystic Circle v. Hos-
kins, Tex.Civ.App., 171 S.W. 812, 815. The term
does not always mean literally any other place
whatever, but may be more or less limited by the
context. See Commonwealth v. Bowser, 61 Pa.
Super.Ct. 107, 108, 114, 214; State v. Sanders, 136
La. 1059, 68 So. 125, Ann.Cas.1916E, 105.
In shipping articles, this term, following the
designation of the port of destination, must be
construed either as void for uncertainty or as
subordinate to the principal voyage stated in the
preceding words. Brown v. Jones, 2 Gall. 477, Fed.
Cas. No. 2,017.
ELUVIONES. In old pleading. Spring tides.
Townsh. Pl. 197.
EMANCIPATION. The act by which one who was
unfree, or under the power and control of another,
is rendered free, or set at liberty and made his
own master. Town of Plainville v. Town of Mil-
ford, 119 Conn. 380, 177 A. 138, 140.
The term is principally used with reference to
the emancipation of a minor child by its parents,
which involves an entire surrender of the right
to the care, custody, and earnings of such child
as well as a renunciation of parental duties. Dela-
ware L. & W. R. Co. v. Petrowsky, C.C.A., 250 F.
554, 559; Public Service Co. of Indiana v. Tackett,
113 Ind.App. 307, 47 N.E.2d 851, 853. The emanci-
pation may be express, as by voluntary agree-
ment of parent and child, or implied from such
acts and conduct as import consent, and it may
be conditional or absolute, complete or partial.
Wallace v. Cox, 136 Tenn. 69, 188 S.W. 611, 612,
L.R.A.1917B, 690.
Complete emancipation is entire surrender of care, cus-
tody, and earnings of child, as well as renunciation of
parental duties. Beebe v. Kansas City, 223 Mo.App. 642, 17
S.W.2d 608, 612. And a "partial emancipation" frees a
child for only a part of the period of minority, or from
only a part of the parent's rights, or for some purposes,
and not for others. Memphis Steel Const. Co. v. Lister, 138
Tenn. 307, 197 S.W. 902, 903, L.R.A.1918B, 406.
Express Emancipation
That which results when parent and child vol-
untarily agree that the child, able to take care of
himself, may go out from his home and make his
own living, receive his own wages, and spend them
as he pleases. Nichols v. Harvey & Hancock, 206
Ky. 112, 266 S.W. 870, 871.
In England
The term "emancipation" has been borrowed
from the Roman law, and is constantly used in
the law of parochial settlements. 7 Adol. & E.,
N.S., 574, note.
In Roman Law
The enfranchisement of a son by his father,
which was anciently done by the formality of an
imaginary sale. This was abolished by Justinian,
who substituted the simpler proceeding of a manu-
mission before a magistrate. Inst. 1, 12, 6.
EMANCIPATION PROCLAMATION. An execu-
tive proclamation, issued January 1, 1863, by Abra-
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EMBARGO
ham Lincoln, declaring that all persons held in
slavery in certain designated states and districts
were and should remain free.
EMBARGO. A proclamation or order of state,
usually issued in time of war or threatened hos-
tilities, prohibiting the departure of ships or goods
from some or all the ports of such state until
further order. The William King, 2 Wheat. 148,
4 L.Ed. 206. For the use of the term as applied
in a loose sense to the government's control of
coal exports during a strike, see Ernesto Foglino
& ,Co. v. Webster, 216 N.Y.S. 225, 237, 217 App.Div.
282.
Embargo is the hindering or detention by any govern-
ment of ships of commerce in its ports. If the embargo is
laid upon ships belonging to citizens of the state imposing
It, it is called a "civil embargo;" if, as more commonly
happens, it is laid upon ships belonging to the enemy, it is
called a "hostile embargo." The effect of this latter
embargo is that the vessels detained are restored to the
rightful owners if no war follows, but are forfeited to the
embargoing government if war does follow, the declara-
tion of war being held to relate back to the original seizure
and detention. Brown.
The temporary or permanent sequestration of
the property of individuals for the purposes of a
government, e. g., to obtain vessels for the trans-
port of troops, the owners being reimbursed for
this forced service. Man. Int. Law, 143.
EMBASSADOR. See Ambassador.
EMBASSAGE, or EMBASSY. The message or
commission given by a sovereign or state to a
minister, called an "ambassador," empowered to
treat or communicate with another sovereign or
state; also the establishment of an ambassador.
EMBER DAYS. In ecclesiastical law. Those days
which the ancient fathers called "quatuor tempora
jejunii" are of great antiquity in the church. They
are observed on Wednesday, Friday, and Satur-
day next after Quadragesima Sunday, or the first
Sunday in Lent, after Whitsuntide, Holyrood Day,
in September, and St. Lucy's Day, about the mid-
dle of December. Brit. c. 53. Our almanacs call
the weeks in which they fall the "Ember Weeks,"
and they are now chiefly noticed on account of
the ordination of priests and deacons; because the
canon appoints the Sundays next after the Ember
weeks for the solemn times of ordination, though
the bishops, if they please, may ordain on any
Sunday or holiday. Enc. Lond.
EMBEZZLEMENT. The fraudulent appropriation
to his own use or benefit of property or money
intrusted to him by another, by a clerk, agent,
trustee, public officer, or other person acting in a
fiduciary character. See 4 Bl.Comm. 230, 231.
The fraudulent appropriation of property by a
person to whom it has been intrusted, or to whose
hands it has lawfully come. American Life Ins.
Co. v. U. S. Fidelity & Guaranty Co., 261 Mich.
221, 246 N.W. 71.
Embezzlement is not an offense at common law, but was
created by statute. "Embezzle" includes in its meaning
appropriation to one's own use, and therefore the use of
the single word "embezzle," in the indictment or informa-
tion, contains within itself the charge that the defendant
appropriated the money or property to his own use. State
v. Wolff, 34 La.Ann. 1153; State v. Hudson, 93 W.Va. 435,
117 S.E. 122, 125.
Embezzlement is common-law larceny extended by stat-
ute to cover cases where the stolen property comes orig-
inally into the possession of the defendant without a tres-
pass. Moody v. People, 65 Colo. 339, 176 P. 476.
Embezzlement is a species of larceny, and the term is
applicable to cases of furtive and fraudulent appropriation
by clerks, servants, or carriers of property coming into
their possession by virtue of their employment. It is dis-
tinguished from "larceny," properly so called, as being
committed in respect of property which is not at the time
in the actual or legal possession of the owner. That is to
say, that in embezzlement the original taking of the prop-
erty was lawful or with the consent of the owner, while in
larceny the felonious intent must have existed at the time
of the taking. Tredwell v. U. S., C.C.A.Va., 266 F. 350,
352. Both words, however, may be used, as in a bond, as
generic terms to indicate the dishonest and fraudulent
breach of any duty or obligation upon the part of an
employee to pay over to his employer, or account to him
for any money, securities, or other personal property, title
to which is in the employer, but which may come into the
possession of the employee. National Surety Co. v. Wil-
liams, 74 Fla. 446, 77 So. 212, 222. Under statute declaring
guilty of a felony an officer or clerk of a state bank who
"embezzles, abstracts, or willfully misapplies" its funds,
"embezzle" refers to acts done for the benefit of the actor
as against the bank, "misapply" covers acts having no
relation to pecuniary profit or advantage to the doer, while
"abstract" means only to take and withdraw from the pos-
session and control of the bank; and while "embezzle-.
ment" may include the offenses of abstraction and willful
misapplication, either of those offenses may be committed
without embezzlement. Ferguson v. State, 80 Tex.Cr.R.
383, 189 S.W. 271, 273. See, however, Winkelmann v. State,
114 Neb. 1, 205 N.W. 565, 566.
EMBLEMATA TRIBONIANI. In the Roman law.
Alterations, modifications, and additions to the
writings of the older jurists, selected to make up
the body of the Pandects, introduced by Tribon-
ian and his associates who constituted the com-
mission appointed for that purpose, with a view
to harmonize contradictions, exscind obsolete mat-
ter, and make the whole conform to the law as
understood in Justinian's time, were called by this
name. Mackeld. Rom. Law, § 71.
EMBLEMENTS. The vegetable chattels called
"emblements" are the corn and other growth of
the earth which are produced annually, not spon-
taneously, but by labor and industry, and thence
are called "fructus industriales." Reiff v. Reiff,
64 Pa. 137. See Crop.
The growing crops of those vegetable productions of the
soil which are annually produced by the labor of the culti-
vator. They are deemed personal property, and pass as
such to the executor or administrator of the occupier,
whether he were the owner in fee, or for life, or for years,
if he die before he has actually cut, reaped, or gathered
the same; and this, although, being affixed to the soil,
they might for some purposes be considered, while grow-
ing, as part of the realty. Wharton.
The term also denotes the right of a tenant to
take and carry away, after his tenancy has ended,
such annual products of the land as have resulted
from his own care and labor.
Emblements are the away-going crop; in other words,
the crop which is upon the ground and unreaped when the
tenant goes away, his lease having determined; and the
right to emblements is the right in the tenant to take away
the away-going crop, and for that purpose to come upon
the land, and do all other necessary things thereon. Miller
v. Gray, Tex.Civ.App., 108 S.W.2d 265, 267, 268.
Where a life tenant, having leased the premises, died,
and the remainderman did not recognize the lease, the
lessee of the life tenant was entitled to the emblements,
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which are the crops of grain growing yearly, but requiring
an outlay of labor or industry, without payment of any
compensation for use of the land in harvesting the emble-
ments. Turner v. Turner, 132 Tenn. 592, 179 S. W. 132, 133.
EMBLERS DE GENTZ. L. Fr. A stealing from
the people. The phrase occurs in the old rolls of
parliament: 'Whereas divers murders, emblers
de gentz, and robberies are committed," etc.
EMBOLISM. In medical jurisprudence. The me-
chanical obstruction of an artery or capillary by
some body traveling in the blood current, as, a
blood-clot (embolus), a globule of fat or an air-
bubble.
Embolism is to be distinguished from "thrombosis," a
thrombus being a clot of blood formed in the heart or a
blood vessel in consequence of some impediment of the
circulation from pathological causes, as distinguished from
mechanical causes, for example, an alteration of the blood
or walls of the blood vessels. When embolism occurs in
the brain (called "cerebral embolism") there is more or
less coagulation of the blood in the surrounding parts, and
there may be apoplectic shock or paralysis of the brain,
and its functional activity may be so far disturbed as to
cause entire or partial insanity. See Cundall v. Haswell,
23 R.I. 508, 51 A. 426.
EMBOLUS. In case of wounds is a product of
coagulation of the blood or blood clot. Berryhill
v. Nichols, 171 Miss. 769, 158 So. 470. A plug
which floats along until it becomes lodged so as
to obstruct the passage of the blood. It consists
usually of a clot or fibrin, a shred from a morbid
growth, a globule of fat, air bubbles, or a micro-
organism. An embolus or floating particle by
attaching itself or becoming wedged may form a
thrombosis or occlusion. Norris v. Industrial
Commission, 90 Utah 256, 61 P.2d 413, 414.
EMBRACEOR. A person guilty of the offense of
embracery (q. v.). See Co. Litt. 369.
EMBRACERY. In criminal law. This offense
consists in the attempt to influence a jury corrupt-
ly to one side or the other, by promises, persua-
sions, entreaties, entertainments, douceurs, and
the like. The person guilty of it is called an "em-
braceor." Moss v. Arnold, 63 Okla.Cr. 343, 75 P.2d
491, 503; Commonwealth v. Fahey, 113 Pa.Super.
598, 173 A. 854, 856.
Embracery being but an attempt corruptly to influence
juror, there is no such crime as attempt to commit
embracery. Wiseman v. Commonwealth, 143 Va. 631, 130
S.E. 249, 251.
EMENDA. Amends; something given in repara-
tion for a trespass; or, in old Saxon times, in
compensation for an injury or crime. Spelman.
EMENDALS. An old word still made use of in
the accounts of the society of the Inner Temple,
where so much in emendals at the foot of an ac-
count on the balance thereof signifies so much
money in the bank or stock of the houses, for
reparation of losses, or other emergent occasions.
Spelman.
EIVICENDARE. In Saxon law. To make amends
or satisfaction for any crime or trespass commit-
ted; to pay a fine; to be fined. Spelman. Emen-
dare se, to redeem, or ransom one's life, by pay-
ment of a weregild.
EMENDATIO. In old English law. Amendment,
or correction. The power of amending and cor-
recting abuses, according to certain rules and
measures. Cowell.
In Saxon law. A pecuniary satisfaction for an
injury; the same as emenda (q. v.). Spelman.
EMENDATIO PANIS ET CEREVISUE. In old
English law. The power of supervising and cor-
recting the weights and measures of bread and
'ale, (assising bread and beer.) Cowell.
EMERGE. To arise; to come to light. "Unless
a matter happen to emerge after issue joined."
Hale, Anal. § 1.
EMERGENCY. A sudden unexpected happening;
an unforeseen occurrence or condition; specifical-
ly, perplexing contingency or complication of cir-
cumstances; a sudden or unexpected occasion for
action; exigency; pressing necessity.
A relatively permanent condition of insufficien-
cy of service or of facilities resulting in social dis-
turbance or distress. Kardasinksi v. Koford, 88
N.H. 444, 190 A. 702, 703, 111 A.L.R. 1017; Con-
tract Cartage Co. v. Morris, D.C.I11., 59 F.2d 437,
446; Los Angeles Dredging Co. v. City of Long
Beach, 210 Cal. 348, 291 P. 839, 843, 71 A.L.R. 161.
"Emergency" in sense of constitutional provision respect-
ing referendum does not mean expediency, convenience, or
best interest. State v. Hinkle, 161 Wash. 652, 297 P. 1071,
1072.
EMERGENCY EMPLOYMENT DOCTRINE. A
regularly employed servant possesses implied ati-,
thority to engage an assistant to aid in perform-
ing a task, within scope of servant's duties in case
of emergency rendering it absolutely necessary to
obtain such assistance, and without which emer-
gency conditions could not be overcome by serv-
ant or any of his coemployees in regular service
of their common master. Hall v. 0. C. Whitaker
Co., 143 Tex. 397, 185 S.W.2d 720, 722, 723.
EMERGENCY LANDING AREA. Any area that
a plane could possibly be landed into with or with-
out motor. It should be from five hundred to a
thousand feet in length, depending on obstructions
around it, and width is not so important, although
it should be at least two or three times that of
plane. Shaw v. Carson, 218 Iowa 1251, 257 N.W.
194.
EMERGENT YEAR. The epoch or date whence
any people begin to compute their time.
EMIGRANT. One who quits his country for any
lawful reason, with a design to settle elsewhere,
and takes his family and property, if he has any,
with him. Vattel, b. 1, c. 19, § 224. Benson v.
State, 36 Ga.App. 87, 135 S.E. 514.
EMIGRANT AGENT. One engaged in the busi-
ness of hiring laborers for work outside the state.
Gleaton v. State, 55 Ga.App. 875, 191 S.E. 926.
EMIGRATION. The act of removing from one
country or state to another.
It is to be distinguished from "expatriation."
The latter means the abandonment of one's coun-
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try and renunciation of one's citizenship in it,
while emigration denotes merely the removal of
person and property to another country. The
former is usually the consequence of the latter.
Emigration is also used of the removal from one
section to another of the same country.
EMINENCE. An honorary title given to car-
dinals. They were called "illustrissimi" and "re-
verendissimi" until the pontificate of Urban VIII.
EMINENT DOMAIN. The power to take private
property for public use. MacVeagh v. Multon-
omah County, 126 Or. 417, 270 P. 502, 507.
The right of eminent domain is the right of the
state, through its regular organization, to reas-
sert, either temporarily or permanently, its do-
minion over any portion of the soil of the state on
account of public exigency and for the public
good. Thus, in time of war or insurrection, the
proper authorities may possess and hold any part
of the territory of the state for the common safe-
ty; and in time of peace the legislature may au-
thorize the appropriation of the same to public
purposes, such as the opening of roads, construc-
tion of defenses, or providing channels for trade
or travel.
The right of society, or of the sovereign, to dispose, in
case of necessity, and for the public safety, of all the
wealth contained in the state, is called "eminent domain."
Jones v. Walker, 2 Paine, 688, Fed.Cas.No.7,507.
Eminent domain is the highest and most exact idea of
property remaining in the government, or in the aggregate
body of the people in their sovereign capacity. It gives a
right to resume the possession of the property in the man-
ner directed by the constitution and the laws of the state,
whenever the public interest requires it. Beekman v. Sara-
toga & S. R. Co., 3 Paige, N.Y., 45, 73, 22 Am. Dec. 679.
"The exaction of money from individuals under the right
of taxation, and the appropriation of private property for
public use by virtue of the power of eminent domain, must
not be confused. In paying taxes the citizen contributes
his just and ascertained share to the expenses of the gov-
ernment under which he lives. But when his property is
taken under the power of eminent domain, he is compelled
to surrender to the public something above and beyond his
due proportion for the public benefit. The matter is spe-
cial. It is in the nature of a compulsory sale to the state."
Black, Tax-Titles, § 3; Beeland Wholesale Co. v. Kaufman,
234 Ala. 249, 174 So. 516, 520.
The term "eminent domain" is sometimes (but inac-
curately) applied to the land, buildings, etc., owned
directly by the government, and which have not yet passed
into any private ownership. This species of property is
much better designated as the "public domain," or
"national domain."
EMISSARY. A person sent upon a mission as the
agent of another; also a secret agent sent to as-
certain the sentiments and designs of others, and
to propagate opinions favorable to his employer.
EMISSION. In medical jurisprudence. The ejec-
tion or throwing out of any secretion or other
matter from the body; the expulsion of urine,
semen, etc.
EMIT. To put forth or send out; to issue. "No
state shall emit bills of credit." Const. U. S. art.
1, § 10.
To issue; to give forth with authority; to put
into circulation. See Bill of Credit.
The word "emit" is never employed in describing those
contracts by which a state binds itself to pay money at a
future day for services actually received, or for money
borrowed for present use. Nor are instruments executed
for such purposes, in common language, denominated "bills
of credit." "To emit bills of credit" conveys to the mind
the idea of issuing paper intended to circulate through the
community, for its ordinary purposes, as money, which
paper is redeemable at a future day. Briscoe v. Bank of
Kentucky, 11 Pet. 316, 9 L.Ed. 709.
To throw off; give out; discharge. Alabama
Great Southern R. Co. v. Stewart, 15 Ala.App. 466,
73 So. 827, 828.
In Scotch practice. To speak out; to state in
words. A prisoner is said to emit a declaration.
2 Alis.Crim.Pr. 560.
EMMENAGOGUES. In medical jurisprudence.
The name of a class of medicines supposed to
have the property of promoting the menstrual
discharge, and sometimes used for the purpose of
procuring abortion.
EMOLUMENT. The profit arising from office or
employment; that which is received as a compen-
sation for services, or which is annexed to the
possession of office as salary, fees, and perqui-
sites; advantage; gain, public or private. Web-
ster. Any perquisite, advantage, profit, or gain
arising from the possession of an office. Apple v.
Crawford County, 105 Pa. 303, 51 Am.Rep. 205;
United States v. MacMillan, D.C.I11., 209 F. 266,
272; McLean v. United States, 3 S.Ct. 122, 124,
226 U.S. 374, 57 L.Ed. 260; State ex rel. Todd v.
Reeves, 196 Wash. 145, 82 P.2d 173, 175, 118 A.L.R.
177.
EMOTIONAL INSANITY. The species of mental
aberration produced by a violent excitement of
the emotions or passions, though the reasoning
faculties may remain unimpaired. A passion, ef-
fecting for a space of time complete derange-
ment of accused's intellect, or an impulse, which
his mind is not able to resist, to do the act. Fan-
non v. Commonwealth, 295 Ky. 817, 175 S.W.2d
531, 533. See Insanity.
EMPALEMENT. In ancient law. A mode of in-
flicting punishment, by thrusting a sharp pole up
the fundament. Enc. Lond.
EMPANNEL. See Impanel.
EMPARLANCE. See Imparlance.
EMPARNOURS. L. Fr. Undertakers of suits.
Kelham.
EMPEROR. The title of the sovereign ruler of
an empire. This designation was adopted by the
rulers of the Roman world after the decay of the
republic, and was assumed by those who claimed
to be their successors in the "Holy Roman Em-
pire," as also by Napoleon. "The sovereigns of
Japan and Morocco are often, though with little
propriety, called emperors." 10 Encyc. Amer.
(1929), p. 300. In western speech the former sover-
eigns of Turkey and China were called emperors.
Cent. Diet.
The title "emperor" seems to denote a power
and dignity superior to that of a "king." It ap-
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pears to be the appropriate style of the executive
head of a federal government, constructed on the
monarchial principle, and comprising in its organi-
zation several distinct kingdoms or other quasi
sovereign states; as was the case with the Ger-
man empire from 1871 to 1918. "The proper mean-
ing of emperor is the chief of a confederation of
states of which kings are members." Cent. Dict.,
quoting Encyc. Brit. "In general, an emperor is
the holder of a sovereignty extending over con-
quered or confederated peoples, a king is ruler of
a single people. Thus * * * the 'King of Eng-
land' is 'Emperor of India.' " Webster's New
Int. Dict. Before the dissolution of the Austro-
Hungarian empire in November, 1918, its monarch
was known as the Emperor of Austria and King
of Hungary.
EMPHASIZING FACTS. An instruction is said
to emphasis facts which may contain sufficient
facts to authorize a verdict, but nevertheless some
fact or facts are selected from the evidence and
mentioned in such a way as to indicate to the jury
that they have especial potency when that is not
justified. Robinson v. Ross, Mo., 47 S.W.2d 122,
125.
EMPHYTEUSIS. In the Roman and civil law.
A contract by which a landed estate was leased
to a tenant, either in perpetuity or for a long
term of years, upon the reservation of an annual
rent or canon, and upon the condition that the
lessee should improve the property, by building,
cultivating, or otherwise, and with a right in the
lessee to alien the estate at pleasure or pass it to
his heirs by descent, and free from any revoca-
tion, re-entry, or claim of forfeiture on the part of
the grantor, except for non-payment of the rent.
Inst. 3, 25, 3; 3 Bl.Comm. 232; Maine, Anc. Law,
289.
The right granted by such a contract, (jus em-
phyteuticum, or emphyteuticarium.) The real
right by which a person is entitled to enjoy an-
other's estate as if it were his own, and to dis-
pose of its substance, as far as can be done with-
out deteriorating it. Mackeld. Rom. Law, § 326.
EMPHYTEUTA. In the civil law. The person to
whom an emphyteusis is granted; the lessee or
tenant under a contract of emphyteusis.
EMPHYTEUTICUS. In the civil law. Founded
on, growing out of, or having the character of, an
emphyteusis; held under an emphyteusis. 3 Bl.
Comm. 232.
EMPIRE. The dominion or jurisdiction of an em-
peror; the region over which the dominion of an
emperor extends; imperial power; supreme do-
minion; sovereign command.
EMPIRIC. A practitioner in medicine or surgery,
who proceeds on experience only, without science
or legal qualification; a quack. Parks v. State,
159 Ind. 211, 64 N.E. 862, 59 L.R.A. 190.
EMPLAZAM/ENTO. In Spanish law. A sum-
mons or citation, issued by authority of a judge,
requiring the person to whom it is addressed to
appear before the tribunal at a designated day
and hour.
EMPLEAD. To indict; to prefer a charge
against; to accuse.
EMPLOI. In French law. Equitable conversion.
When property covered by the regime dotal is
sold, the proceeds of the sale must be reinvested
for the benefit of the wife. It is the duty of the
purchaser to see that the price is so reinvested.
Arg. Fr. Mere. Law, 557.
EMPLOY. To engage in one's service; to use
as an agent or substitute in transacting business;
to commission and intrust with the management
of one's affairs; and, when used in respect to a
servant or hired laborer, the term is equivalent to
hiring, which implies a request and a contract for
a compensation, and has but this one meaning
when used in the ordinary affairs and business of
life. Tennessee Coal, Iron & R. Co. v. Muscoda
Local No. 123, Ala., 64 S.Ct. 698, 703, 705, 321 U.S.
590, 88 L.Ed. 949; Slocum Straw Works v. Indus-
trial Commission, 232 Wis. 71, 286 N.W. 593, 598;
It is a synonym of "appoint". Morris v. Parks,
145 Or. 481, 28 P.2d 215, 216; Board of Com'rs of
Colfax County v. Department of Public Health,
44 N.M. 189, 100 P.2d 222, 223, It is also synony-
mous with "hire." Nat. Wooden Box Ass'n v.
U. S., Ct.C1., 103 Ct.C1. 595, 59 F.Supp. 118, 119.
EMPLOYED. This signifies both the act of doing
a thing and the being under contract or orders to
do it. To give employment to; to have employ-
ment. State v. Birmingham Beauty Shop, Ala.,
198 So. 435, 436.
EMPLOYEE. This word "is from the French,
but has become somewhat naturalized in our
language. Strictly and etymologically, it means
`a person employed,' but, in practice in the French
language, it ordinarily is used to signify a person
in some official employment, and as generally
used with us, though perhaps not confined to any
official employment, it is understood to mean some
permanent employment or position." The word
may be more extensive than "clerk" or "officer,"
and may signify any one in place, or having
charge or using a function, as well as one in of-
fice. Hopkins v. Cromwell, 89 App.Div. 481, 85
N.Y.S. 839.
One who works for an employer; a person
working for salary or wages; applied to anyone
so working, but usually only to clerks, workmen,
laborers, etc., and but rarely to the higher officers
of a corporation or government or to domestic
servants. Keefe v. City of Monroe, 120 So. 106, 9
La.App. 545; State ex rel. Gorczyca v. City of
Minneapolis, 174 Minn. 594, 219 N.W. 924.
Generally, when person for whom services are
performed has right to control and direct indi-
vidual who performs services not only as to re-
sult to be accomplished by work but also as to
details and means by which result is accom-
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plished, individual subject to direction is an "em-
ployee". Young v. Demos, 70 Ga.App. 577, 28 S.E.
2d 891, 893.
"Servant" is synonymous with "employee".
Gooden v. Mitchell, Del.Super., 21 A.2d 197, 200,
201, 203, 2 Terry 301; Gibson v. Gillette Motor
Transport, Tex.Civ.App., 138 S.W.2d 293, 294. Ten-
nessee Valley Appliances v. Rowden, 24 Tenn.
App. 487 146 S.W.2d 845, 848.
"Employee" must be distinguished from "independent
contractor," "officer," "vice-principal," "agent," etc. The
term is often specially defined by statutes ; and whether
one is an employee or not within a particular statute will
depend upon facts and circumstances. For examples; Fair
Labor Standards Act, Fleming v. Demeritt Co., D.C.Vt., 56
F.Supp. 376, 378, 390; Schroepfer v. A. S. Abell Co.,
D.C.Md., 48 F.Supp. 88, 94, 95, 98. Motor Carriers' Act,
United States v. American Trucking Ass'n, App.D.C., 60
S.Ct. 1059, 1065, 310 U.S. 534, 84 L.Ed. 1345; West v.
Smoky Mountain Stages, D.C.Ga., 40 F.Supp. 296, 298, 299.
National Labor Relations Act. Standard Lime & Stone Co.
v. National Labor Relations Board, C.C.A.4, 97 F.2d 531,
534, 535, 537; Eagle-Picher Mining Co. v. National Labor
Relations Board, C.C.A.8, 119 F.2d 903, 911. Social Security
Act, Kentucky Cottage Industries v. Glenn, D.C.Ky., 39
F.Supp. 642, 644, 645; Yearwood v. United States, D.C.La.,
55 F.Supp. 295, 299, 300. State Labor Relations Law, In re
New York State Labor Relations Board, 37 N.Y.S.2d 304,
308, 309; New York State Labor Relations Board v. Union
Club of City of N. Y., 52 N.Y.S.2d 74, 83, 268 App.Div. 516.
Unemployment Compensation Act. In re General Electric
Co., 66 Idaho 91, 156 P.2d 190, 191. In re Keith, 30 N.Y.S.2d
206, 262 App.Div. 984. Workmen's Compensation Act, Stiles
v. Des Moines Council of Boy Scouts of America, 209 Iowa
1235, 229 N.W. 841, 844; Essex County Country Club v.
Chapman, 113 N.J.L. 182, 173 A. 591, 592.
For "Executive Employee", see that title.
EMPLOYER. One who employs the services of
others; one for whom employees work and who
pays their wages or salaries. The correlative of
employee." Angell v. White Eagle Oil & Refin-
ing Co., 169 Minn. 183, 210 N.W. 1004, 1005. "Mas-
ter" is a synonymous term. Tennessee Valley
Appliances v. Rowden, 24 Tenn.App. 487, 146 S.W.
2d 845, 846; Gooden v. Mitchell, 2 Terry 301, 21 A.
2d 197, 200.
The following are examples of persons who have been or
have not been classified as "employers" within various
statutes. Carriers' Taxing Act. Interstate Transit Lines
v. U. S., D.C.Neb., 56 F.Supp. 332; Walling v. Baltimore
Steam Packet Co., C.C.A.Md., 144 F.2d 130, 132. Fair
Labor Standards Act. Bowe v. Judson C. Burns, Inc.,
D.C.Pa., 46 F.Supp. 745, 748; Barrow v. Adams & Co. Real
Estate, 46 N.Y.S.2d 357, 359, 182 Misc. 641. National Labor
Relations Act. National Labor Relations Board v. Con-
denser Corporation of America, C.C.A.3, 128 F.2d 67, 71;
N. L. R. B. v. Hofmann, C.C.A.3, 147 F.2d 679, 681, 157
A.L.R. 1149. Social Security Act. Matcovich v. Anglem,
C.C.A.Cal., 134 F.2d 834, 837; Florida Industrial Commis-
sion v. Peninsular Life Ins. Co., 152 Fla. 55, 10 So.2d 793,
794. Unemployment Compensation Act, Smith v. Brooklyn
Bar Ass'n, 44 N.Y.S.2d 620, 621, 266 App.Div. 1038; State
ex rel. Merion v. Unemployment Compensation Board of
Review, 142 Ohio St. 628, 53 N.E.2d 818, 820.
EMPLOYERS' LIABILITY ACTS. Statutes de-
fining or limiting the occasions and the extent to
which employers shall be liable in damages for
injuries to their employees occurring in the course
of the employment, and particularly (in recent
times) abolishing the common-law rule that the
employer is not liable if the injury is caused by
the fault or negligence of a fellow servant.
EMPLOYMENT. The act of hiring (People v.
Hyde, 89 N.Y. 11, 16), implying a request and a
contract for compensation. State v. Deck, 108 Mo.
App. 292, 83 S.W. 314, 315, (quoting and adopting
definition in State v. Foster, 37 Iowa, 404; Mc-
Cluskey v. Cromwell, n N.Y. 593).
It does not necessarily import an engagement
or rendering services for another. A person may
as well be "employed" about his Awn business as
in the transaction of the same for a principal.
State v. Canton, 43 Mo. 51.
Act of employing or state of being employed;
that which engages or occupies; that which con-
sumes time or attention; also an occupation, pro-
fession, trade, post or business. Hinton v. Colum-
bia River Packers' Ass'n, C.C.A.Or., 117 F.2d 310;
Davis v. Lincoln County, 117 Neb. 148, 219 N.W.
899, 900.
Includes the doing of the work and a reason-
able margin of time and space required in pass-
ing to and from the place where the work is to
be done. California Casualty Indemnity Ex-
change v. Industrial Accident Commission, 21 Cal.
2d 751, 135 P.2d 158, 161; Park Utah Consol. Mines
Co. v. Industrial Commission, 103 Utah 64, 133
P.2d 314, 317.
The term "office" implies a delegation of a portion of the
sovereign power to, and the possession of it by, the person
filling the office, while an "employment" does not compre-
hend a delegation of any part of the sovereign authority.
Dade County v. State, 95 Fla. 465, 116 So. 72, 76.
tMPLOYMENT AGENCY. Business operated by
a person, firm or corporation engaged in procur-
ing, for a fee, employment for others and em-
ployees for employers. McMillan v. City of Knox-
ville, 139 Tenn. 319, 202 S.W. 65, 66.
EMPORIUM. A place for wholesale trade in
commodities carried by sea. The name is some-
times applied to a seaport town, but it properly
signifies only a particular place in such a town.
Smith, Dict. Antiq.
EMPOWER. A grant of authority rather than a
command of its exercise. In re Whiteman's Will,
52 N.Y.S.2d 723, 725, 268 App.Div. 591.
EMPRESARIOS. In Mexican law. Undertakers
or promoters of extensive enterprises, aided by
concessions or monopolistic grants from govern-
ment; particularly, persons receiving extensive
land grants in consideration of their bringing
emigrants into the country and settling them on
the lands, with a view of increasing the population
and developing the resources of the country. U.
S. v. Maxwell Land-Grant Co., 7 S.Ct. 1015, 121
U.S. 325, 30 L.Ed. 949.
EMPRESTIDO. In Spanish law. A loan. Some-
thing lent to the borrower at his request. Las
Partidas, pt. 3, tit. 18, 1. 70.
EMPTIO. In the Roman and civil law. The act
of buying; a purchase.
EMPTIO BONORUM. A species of forced assign-
ment for the benefit of creditors; being a public
sale of an insolvent debtor's estate whereby the
purchaser succeeded to all his property, rights,
and claims, and became responsible for his debts
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and liabilities to the extent of a quota fixed be-
fore the transfer. See Mackeld. Rom. Law, §
521.
EMPTIO ET VENDITIO. Purchase and sale;
sometimes translated "emption and vendition."
The name of the contract of sale in the Roman
law. Inst. 3, 23; Bract. fol. 61b. Sometimes
made a compound word, emptio-venditio.
EMPTIO REI SPERATIE. A purchase in the
hope of an uncertain future profit; the purchase
of a thing not yet in existence or not yet in the
possession of the seller, as, the cast of a net or
a crop to be grown, and the price of which is to
depend on the actual gain. On the other hand,
if the price is fixed and not subject to fluctuation,
but is to be paid whether the gain be greater or
less, it is called emptio spei. Mackeld. Rom.
Law, § 400.
EMPTOR. Lat. A buyer or purchaser. Used in
the maxim "caveat emptor," let the buyer be-
ware; i. e., the buyer of an article must be on his
guard and take the risks of his purchase.
EMPTOR EMIT QUAM MINIMO POTEST, VEN-
DITOR VENDIT QUAM MAXIMO POTEST.
The buyer purchases for the lowest price he can;
the seller sells for the highest price he can. 2
Kent, Comm. 486.
EMTIO. In the civil law. Purchase. This form
of the word is used in the Digests and Code.
Dig. 18, 1; Cod. 4, 49. See Emptio.
EMTOR. In the civil law. A buyer or purchaser;
the buyer. Dig. 18, 1; Cod. 4, 49.
EMTRIX. In the civil law. A female purchaser;
the purchaser. Cod. 4, 54, 1.
EN ARERE. L. Fr. In time past. 2 Inst. 506.
EN AUTRE DROIT. In the right of another. See
Autre Droit.
EN BANC. L. Fr. In the bench. 1 Anders. 51.
EN BREVET. In French law. An acte is said
to be en brevet when a copy of it has not been
recorded by the notary who drew it.
EN DECLARATION DE SIMULATION. A form
of action used in Louisiana. Its object is to have a
contract declared judicially a simulation and a
nullity, to remove a cloud from the title, and to
bring back, for any legal purpose, the thing sold
to the estate of the true owner. Edwards v. Bal-
lard, 20 La.Ann. 169.
EN DEMEURE. In default. Used in Louisiana
of a debtor who fails to pay on demand accord-
ing to the terms of his obligation. See Bryan v.
Cox, 3 Mart. (La. N. S.) 574.
EN ESCHANGE IL COVIENT QUE LES ES-
TATES SOIENT EGALES. Co. Litt. 50. In an
exchange it is desirable that the estates be
equal.
EN FAIT. Fr. In tact; in deed; actually.
EN GROS. Fr. In gross. Total; by wholesale.
EN JUICIO. Span. Judicially; in a court of
law; in a suit at law. White, New Recop. b. 2,
tit. 8, c. 1.
EN MASSE. Fr. In a mass; in a lump; at
wholesale.
EN MORT MAYNE. L. Fr. In a dead hand;
in mortmain. Britt. c. 43.
EN OWEL MAIN. L. Fr. In equal hand. The
word "owel" occurs also in the phrase "owelty
of partition."
EN RECOUVREMENT. Fr. In French law. An
expression employed to denote that an indorse-
ment made in favor of a person does not transfer
to him the property in the bill of exchange, but
merely constitutes an authority to such person
to recover the amount of the bill. Arg. Fr. Mere.
Law, 558.
EN ROUTE. Fr. On the way; in the course of
a voyage or journey; in course of transportation.
McLean v. U. S., 17 Ct.C1. 90.
EN VENTRE SA MERE. L. Fr. In its mother's
womb. A term descriptive of an unborn child.
For some purposes the law regards an infant
en ventre as in being. It may take a legacy;
have a guardian; an estate may be limited to its
use, etc. 1 Bl. Comm. 130.
EN VIE. L. Fr. In life; alive. Britt. c. 50.
ENABLE. To give power to do something. In
the case of a person under disability as to deal-
ing with another, "enable" has the primary mean-
ing of removing that disability; not of conferring
a compulsory power as against that other; 66 L.
J. Ch. 208; [1897] A. C. 647. To make able.
Summers v. Chicago Title & Trust Co., 335 Ill.
564, 167 N.E. 777, 779.
ENABLING POWER. When the donor of a pow-
er, who is the owner of the estate, confers upon
persons not seised of the fee the right of creat-
ing interests to take effect out of it, which could
not be done by the donee of the power unless by
such authority, this is called an "enabling power."
2 Bouv. Inst. no. 1928.
ENABLING STATUTE. The act of 32 Henry
VIII. c. 28, by which tenants in tail, husbands
seised in right of their wives, and others were
empowered to make leases for their lives or for
twenty-one years, which they could not do be-
fore. 2 Bl. Comm. 319; Co. Litt. 44a. The phrase
is also applied to any statute enabling persons
or corporations to do what before they could
not. It is applied to statutes which confer new
powers.
ENACH. In Saxon law. The satisfaction for a
crime; the recompense for a fault. Skene.
ENACT. To establish by law; to perform or
effect; to decree. The usual introductory formu-
la in making laws is, "Be it enacted." In re Sen-
ate File, 25 Neb. 864, 41 N.W. 981.
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ENACTING
ENACTING CLAUSE. That part of a statute
which declares its enactment and serves to iden-
tify it as an act of legislation proceeding from the
proper legislative authority. Various formulas
are used for this clause, such as "Be it enacted
by the people of the state of Illinois represented
in general assembly," "Be it enacted by the senate
and house of representatives of the United States
of America in congress assembled," "The general
assembly do enact," etc. A section of a statute
denouncing an offense is sometimes spoken of as
the "enacting clause." City of Astoria v. Malone,
169 P. 749, 750, 87 Or. 88. See United States v.
Mendelsohn, D.C.N.J., 32 F.Supp. 622, 623, ques-
tioning this definition.
ENAJENACION. In Spanish and Mexican law.
Alienation; transfer of property. The act by
which the property in a thing, by lucrative title,
is transferred, as a donation; or by onerous title,
as by sale or barter. In a more extended sense,
the term comprises also the contracts of emphy-
teusis, pledge, and mortgage, and even the crea-
tion of a servitude upon an estate. Escriche;
Mulford v. Le Franc, 26 Cal. 88.
ENBREVER. L. Fr. To write down in short;
to abbreviate, or, in old language, timbreviate;
to put into a schedule. Britt. c. 1.
ENCAUSTUM. In the civil law. A kind of ink
or writing fluid appropriate to the use of the em-
peror. Cod. 1, 23, 6.
ENCEINTE. Pregnant. See Pregnancy.
ENCHESON. The occasion, cause, or reason for
which anything is done. Termes de la Ley.
ENCLOSE. See Inclose.
ENCLOSURE. See Inclosure.
ENCOMIENDA. In Spanish law. A grant from
the crown to a private person of a certain portion
of territory in the Spanish colonies, together with
the concession of a certain number of the native
,inhabitants, on the feudal principle of commenda-
tion. 2 Wools. Pol. Science, 161, 162. Also a
royal grant of privileges to the military orders
of Spain.
ENCOURAGE. In criminal law. To instigate;
to incite to action; to give courage to; to in-
spirit; to embolden; to raise confidence; to make
confident; to help; to forward; to advise. Com-
itez v. Parkerson, C.C.La., 50 F. 170.
ENCROACH. To enter by gradual steps or
stealth into the possessions or rights of another;
to trespass; intrude. Miami Corporation v. State,
186 La. 784, 173 So. 315, 318. To gain unlawfully
upon the lands, property, or authority of another;
as if one man presses upon the grounds of another
too far, or if a tenant owe two shillings rent-serv-
ice, and the lord exact three. So, too, the Spenc-
ers were said to encroach the king's authority.
Blount; Plowd. 94a.
ENCROACHMENT. An encroachment upon a
street or highway is a fixture, such as a wall
or fence, which illegally intrudes into or invades
the highway or incloses a portion of it, diminish-
ing its width or area, but without closing it to
public travel. State v. Scott, 82 N.H. 278, 132 A.
685, 686.
In the law of easements. Where the owner of
an easement alters the dominant tenement, so as
to impose an additional restriction or burden on
the servient tenement, he is said to commit an en-
croachment. Sweet.
ENCUMBER. See Incumber.
ENCUMBRANCE. See Incumbrance.
END. Object; intent. Things are construed ac-
cording to the end. Finch, Law, b. 1, c. 3, no. 10.
END LINES. In mining law, the end lines of a
claim, as platted or laid down on the ground, are
those which mark its boundaries on the shorter
dimension, where it crosses the vein, while the
"side lines" are those which mark its longer
dimension, where it follows the course of the vein.
But with reference to extra-lateral rights, if the
claim as a whole crosses the vein, instead of fol-
lowing its course, the end lines will become side
lines and vice versa. Consolidated Wyoming
Gold Min. Co. v. Champion Min. Co., C.C.Cal., 63
F. 549.
END OF WILL. Point in will at which desposi-
tive provisions terminate. In re Levanti's Will,
252 N.Y.S. 497, 498, 141 Misc. 248. In re Coyne's
Estate, 349 Pa. 331, 37 A.2d 509, 510.
END ON OR NEARLY SO. Approaching vessels
whose courses diverge not more than one or two
points are meeting "end on or nearly so," within
article 18 of the Inland Ruls (33 USCA § 203),
and are required to pass port to port. The Amol-
co, C.C.A.Mass., 283 F. 890, 893.
END SILLS. The sill of a car is one of the main
longitudinal timbers which are connected trans-
versely by the end sills, bolsters, and cross-ties.
Sills are divided into side sills, intermediate sills,
and center sills. The end sill is the transverse
member of the under frame of a car framed
across the ends of all the longitudinal sills. In
passenger cars the end sill comes directly under
the end door; the platform with its various parts
usually being a separate construction. The plat-
form end sill is the transverse end piece of the
platform frame, and is also called the "end tim-
ber" and buffer beam on passenger equipment
cars. Hill v. Minneapolis, St. P. & S. S. M. Ry. Co.,
160 Minn. 484, 200 N.W. 485, 486.
END TO END. The expression "end to end,"
used in a patent claim in describing the relative
position of rollers, does not necessarily require
that there shall be no longitudinal space between
the ends of the rollers, nor impose a limitation
which will enable another to avoid infringement
by leaving a space between them, where it does
not change their function or mode of operation.
Stebler v. Riverside Heights Orange Growers'
Ass'n, C.C.A.Cal., 205 F. 735, 740.
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ENFORCEABLE
ENDEAVOR. To exert physical and intellectual
strength toward the attainment of an object; a
systematic or continuous effort. Thompson v.
Corbin, Tex.Civ.App., 137 S.W.2d 157, 159.
ENDENZIE, or ENDENIZEN. To make free; to
enfranchise.
ENDOCARDITIS. In medical jurisprudence. An
inflammation of the living membrane of the heart.
ENDORSE. See Indorse.
ENDOW. To give a dower; to bestow upon; to
make pecuniary provision for. Fish v. Fish, 184
Ky. 700, 212 S.W. 586, 587.
ENDOWED SCHOOLS. In England, certain
schools having endowments are distinctively
known as "endowed schools;" and a series of
acts of parliament regulating them are known as
the "endowed schools acts." Mozley & Whitley.
ENDOWMENT. The assignment of dower; the
setting off a woman's dower. 2 Bl. Comm. 135.
In appropriations of churches (in English law,)
the setting off a sufficient maintenance for the
vicar in perpetuity. 1 Bl. Comm. 387.
The act of settling a fund, or permanent pecun-
iary provision, for the maintenance of a public
institution, charity, college, etc.
A fund settled upon a public institution, etc.,
for its maintenance or use.
The words "endowment" and "fund," in a statute
exempting from taxation the real estate, the furniture and
personal property, and the "endowment or fund" of reli-
gious and educational corporations, are ejusdem generic,
and intended to comprehend a class of property different
from the other two, not real estate or chattels. The dif-
ference between the words is that "fund" is a general
term, including the endowment, while "endowment" means
that particular fund, or part of the fund, of the institution,
bestowed for its more permanent uses, and usually kept
sacred for the purposes intended. The word "endowment"
does not, in such an enactment, include real estate. See
First Reformed Dutch Church v. Lyon, 32 N.J.Law, 360;
Appeal of Wagner Institute, 116 Pa. 555, 11 A. 402.
ENDOWMENT POLICY. In life insurance. A
policy which is payable when the insured reaches
a given age, or upon his decease, if that occurs
earlier. Central States Life Ins. Co. v. Morris,
202 Ark. 969, 155 S.W.2d 333, 336, 202 Ark. 969.
ENDURANCE. State or capability of lasting;
continuance; or act or instance of bearing or
suffering; a continuing or the power of continu-
ing under pain, hardship, or distress without being
overcome; sufferance; as beyond endurance.
State ex rel. Adams v. Crowder, 46 N.M. 20, 120
P.2d 428, 431.
ENEMY, in public law, signifies either the state
which is at war with another, or a citizen or sub-
ject of such state, or a person, partnership, or
corporation doing business within the territory of
an enemy state or an ally thereof. United States
v. Fricke, D.C.N.Y., 259 F. 673, 675; Rossie v.
Garvan, D.C.Conn., 274 F. 447, 453.
Alien Enemy
An alien, that is, a citizen or subject of a for-
eign state or power, residing within a given coun-
try, is called an "alien ami" if the country
where he lives is at peace with the country
of which he is a citizen or subject; but if a state
of war exists between the two countries, he is
called an "alien enemy," and in that character is
denied access to the courts or aid from any of the
departments of government.
Enemy Belligerent
Citizens who associate themselves with the mili-
tary arm of an enemy government and enter the
United States bent on hostile acts. Ex parte Quir-
in, App.D.C., 63 S.Ct. 2, 15, 317 U.S. 1, 87 L.Ed. 3.
Enemy's Property
In international law, and particularly in the
usage of prize courts, this term designates any
property which is engaged or used in illegal in-
tercourse with the public enemy, whether belong-
ing to an ally or a citizen, as the illegal traffic
stamps it with the hostile character and attaches
to it all the penal consequences. Prize Cases, 2
Black, 674, 17 L.Ed. 459.
Public Enemy
A nation at war with the United States; also
every citizen or subject of such nation. Not in-
cluding robbers, thieves, private depredators, or
riotous mobs. State v. Moore, 74 Mo. 417, 41 Am.
Rep. 322.
The term has latterly acquired, in the vocab
ulary of journalism and civic indignation, a more
extended meaning, denoting a particularly notor-
ious offender against the criminal laws, especially
one who seems more or less immune from suc-
cessful prosecution.
ENFEOFF. To invest with an estate by feoff-
ment. To make a gift of any corporeal heredita-
ments to another. See Feoffment.
ENFEOFFMENT. The act of investing with any
dignity or possession; also the instrument or deed
by which a person is invested with possessions.
ENFITEUSIS. In Spanish law. Emphyteusis,
(q. v.). See Mulford v. Le Franc, 26 Cal. 103.
ENFORCE. To put into execution; to cause to
take effect; to make effective; as, to enforce a
writ, a judgment, or the collection of a debt or
fine; to compel obedience to. Dozier v. City of
Gatesville, Tex.Civ.App., 51 S.W.2d 1091.
ENFORCEABLE. Word "enforceable," standing
alone, does not mean "perform" or "performable,"
but, when employed in contract for performance
of obligation relating to venue, it is synonymous
with word "execute," and must be given meaning
of "perform," "performable," and "to perform."
It does not necessarily imply actual force or co-
ercion, but may mean to be executed; to put
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ENFRANCHISE
into execution; to cause to take effect. Glover v.
American Mortgage Corporation, Tex.Civ.App., 94
S.W.2d 1235, 1236.
ENFRANCHISE. To make free; to incorporate
a man in a society or body politic.
ENFRANCHISEMENT. The act of making free;
giving a franchise or freedom to; investiture with
privileges or capacities of freedom, or municipal
or political liberty. Admission to the freedom of
a city; admission to political rights, and particu-
larly the right of suffrage. Anciently, the acquisi-
tion of freedom by a villein from his lord.
The word is now used principally either of
the manumission of slaves, (q. v.,) of giving to a
borough or other constituency a right to return a
member or members to parliament, or of the
conversion of copyhold into freehold. Mozley &
Whiteley.
ENFRANCHISEMENT OF COPYHOLDS. In
English law. The conversion of copyhold into
freehold tenure, by a conveyance of the fee-simple
of the property from the lord of the manor to the
copyholder, or by a release from the lord of all
seigniorial rights, etc., which destroys the custom-
ary descent, and also all rights and privileges an-
nexed to the copyholder's estate. 1 Watk. Copyh.
362; 2 Steph. Comm. 51.
ENGAGE. To employ or involve one's self; to
take part in; to embark on. State ex rel. Kusie
v. Weber, 72 N.D. 705, 10 N.W.2d 741, 745. It im-
ports more than a single act or transaction or an
occasional participation. Head v. New York Life
Ins. Co., C.C.A.Okl., 43 F.2d 517, 519; Lee v.
Guardian Life Ins. of America, 46 N.Y.S.2d 241,
246, 187 Misc. 221.
"Engage" means to take part in or be employed in and
denotes more than a single act or single transaction while
"participate" means simply to take or have a part or share
in, and may apply equally to a single act or many acts.
Lawyers Lloyds of Texas v. Webb, Tex.Civ.App., 150
S.W.2d 181, 184.
ENGAGED IN AVIATION, See Aviation.
ENGAGED IN COMMERCE. To be "engaged in
commerce" an employee must be actually engaged
in the movement of commerce or the services he
performs must be so closely related thereto as to
be for all practical purposes an essential part
thereof; McLeod v. Threlkeld, Tex., 63 S.Ct. 1248,
1251, 1252, 319 U.S. 491, 87 L.Ed. 1538; Boutell v.
Walling, C.C.A.Mich., 148 F.2d 329, 331.
ENGAGED IN EMPLOYMENT. To be rendering
service for employer under terms of employment,
and is more than being merely hired to commence
work. Walling v. Consumers Co., C.C.A.Ill., 149
F.2d 626, 629.
ENGA GEMENT. In French law. A contract.
The obligation arising from a quasi contract.
The terms "obligation" and "engagement" are
said to be synonymous, (17 Toullier, no. 1;) but
the Code seems specially to apply the term "en-
ga gement" to those obligations which the law im-
poses on a man without the intervention of. any
contract, either on the part of the obligor or the
obligee, (article 1370.) An engagement to do or
omit to do something amounts to a promise. Rue
v. Rue, 21 N.J.Law, 369.
In English practice. The term has been appro-
priated to denote a contract entered into by a
married woman with the intention of binding or
charging her separate estate, or, with stricter ac-
curacy, a promise which in the case of a person
sui juris would be a contract, but in the case of
a married woman is not a contract, because she
cannot bind herself personally, even in equity.
Her engagements, therefor, merely operate as
dispositions or appointments pro tanto of her
separate estate. Sweet.
Under statute rendering national bank stock-
holders liable to assessment in order to discharge
an "engagement" of the bank, the quoted word
includes all pecuniary liabilities and obligations of
the bank. Oppenheimer v. Harriman Nat. Bank
& Trust Co. of City of New York, N.Y., 57 S.Ct.
719, 723, 301 U.S. 206, 81 L.Ed. 1042.
ENGENDER. To cause, to bring about, to excite,
to occasion, to call forth. Lacy v. State, 30 Okl.
Cr. 273, 236 P. 53, 54.
ENGINE. This is said to be a word of very gen-
eral signification; and, when used in an act, its
meaning must be sought out from the act itself,
and the language which surrounds it, and also
from other acts in pari materia, in which it oc-
curs. Abbott, J., 6 Maule & S. 192. In a large
sense, it applies to all utensils and tools which
afford the means of carrying on a trade. But in
a more limited sense it means a thing of consider-
able dimensions, of a fixed or permanent nature,
analogous to an erection or building. Id. 182.
And see Lefler v. Forsberg, 1 App.D.C. 41; Brown
v. Benson, 101 Ga. 753, 29 S.E. 215.
Within Employers' Liability Law, § 1, par. 2,
subd. (a), an "engine" is an ingenious or skillful
contrivance used to effect a purpose, and is often
synonymous with the word "machine"; machine-
ry being any combination of mechanical means
designed to work together so as to effect a given
end. Haddad v. Commercial Motor Truck Co.,
146 La. 897, 84 So. 197, 198, 9 A.L.R. 1380.
Machine by which power is applied to the doing
of work, particularly one that converts some mo-
tive energy, especially heat, into mechanical power.
Chrysler Corporation v. Trott, Cust. & Pat.App.,
83 F.2d 302, 310.
Compound Compressed Air Engine
An engine in which the compressed air is first
used in a high pressure cylinder, that is, in a
cylinder of relatively small diameter, and after
driving the piston connected therewith, instead of
being permitted to escape, is conveyed to a low
pressure cylinder, that is, to a cylinder of larger
diameter, where it still has sufficient expansive
force to drive another piston. This operation may
again be repeated in a third cylinder or the air
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ENLARGER
be permitted to escape to the atmosphere. H. K.
Porter Co. v. Baldwin Locomotive Works, D.C.Pa.,
219 F. 226, 229.
ENGINEER. One who is versed in or follows as
a calling or profession any branch of engineering.
Employers' Liability Assur. Corporation v. Acci-
dent & Casualty Ins. Co. of Winterthur, Switzer-
land, C.C.A.Ohio, 134 F.2d 566, 569. One who man-
ages or runs any stationary or locomotive engine;
an engine driver. Baggaley v. Aetna Ins. Co., C.
C.A.I11., 111 F.2d 134, 135.
ENGINEERING. The art and science by which
mechanical properties of matter are made useful
to man hi structures and machines. Employers'
Liability Assur. Corporation v. Accident & Cas-
ualty Ins. Co. of Winterthur, Switzerland, C.C.A.
Ohio, 134 F.2d 566, 569, 146 A.L.R. 1186.
ENGLESHIRE. A law was made by Canute,
for the preservation of his Danes, that, when a
man was killed, the hundred or town should be
liable to be amerced, unless it could be proved
that the person killed was an Englishman. This
proof was called "Engleshire." 1 Hale, P. C. 447;
4 Bl. Comm. 195; Spelman.
ENGLETERRE. L. Fr. England.
ENGLISH INFORMATION. In English law. A
proceeding in the court of exchequer in matters
of revenue.
ENGLISH MARRIAGE. This phrase may refer
to the place where the marriage is solemnized, or
it may refer to the nationality and domicile of the
parties between whom it is solemnized, the place
where the union so created is to be enjoyed. 6
Prob. Div. 51.
ENGRAVING. The art of producing on hard
material incised or raised patterns, lines, and the
like, from which an impression or print is taken.
The term may apply to a text or script, but is
generally restricted to pictorial illustrations or
works connected with the fine arts, not including
the reproduction of pictures by means of pho-
tography. American Historical Co. v. Clark, 316
Ill.App. 309, 44 N.E.2d 761.
ENGROSS. To copy the rude draft of an instru-
ment in a fair, large hand. To write out, in a
large, fair hand, on parchment.
In old criminal law. To buy up so much of a
commodity on the market as to obtain a monopoly
and sell again at a forced price.
ENGROSSER. One who engrosses or writes on
parchment in a large, fair hand.
One who purchases large quantities of any com-
modity in order to acquire a monopoly, and to
sell them again at high prices.
ENGROSSING. In English law. The getting in-
to one's possession, or buying up, large quantities
of corn, or other dead victuals, with intent to sell
them again. The total engrossing of any other
commodity, with intent to sell it at an unreason-
able price. 4 Bl.Comm. 158, 159. This was a mis-
demeanor, punishable by fine and imprisonment.
Steph.Crim.Law, 95. Now repealed by 7 & 8 Vict.
c. 24. 4 Steph.Comm. 291, note.
ENHANCED. This word, taken in an unqualified
sense, is synonymous with "increased," and com-
prehends any increase of value, however caused or
arising. Thornburn v. Doscher, C.C.Or., 32 Fed.
812.
ENHERITANCE. L. Fr. Inheritance.
ENITIA PARS. The share of the eldest. A term
of the English law descriptive of the lot or share
chosen by the eldest of coparceners when they
make a voluntary partition. The first choice
(primer election) belongs to the eldest. Co.Litt.
166.
ENITIA PARS SEMPER PRIZEFERENDA EST
PROPTER PRIVILEGIUM ZETATIS. Co.Litt.
166. The part of the elder sister is always to be
preferred on account of the privilege of age.
ENJOIN. To require; command; positively di-
rect. To require a person, by writ of injunction
from a court of equity, to perform, or to abstain or
desist from, some act. Clifford v. Stewart, 95 Me.
38, 49 A. 52; Lawrence v. Cooke, 32 Hun, 126;
Brimberg v. Hartenfeld Bag Co., 89 N.J.Eq. 425,
105 A. 68, 69.
ENJOY. To have, possess, and use with satisfac-
tion; to occupy or have benefit of. Salway v.
Multnomah Lumber & Box Co., 134 Or. 428, 293
P. 420, 422.
ENJOYMENT. The exercise of a right; the pos-
session and fruition of a right, privilege or incor-
poreal hereditament.
Comfort, consolation, contentment, ease, happi-
ness, pleasure and satisfaction. National Surety
Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 295.
Adverse Enjoyment
The possession or exercise of an easement, un-
der a claim of right against the owner of the land
out of which such easement is derived. 2 Washb.
Real Prop. 42; Cox v. Forrest, 60 Md. 79.
Quiet Enjoyment
Covenant for. See Covenant.
ENLARGE. To make larger; to increase; to ex-
tend a time limit; to grant further time. Also to
set at liberty one who has been imprisoned or in
custody.
ENLARGER L'ESTATE. A species of release
which inures by way of enlarging an estate, and
consists of a conveyance of the ulterior interest to
the particular tenant; as if there be tenant for
life or years, remainder to another in fee, and he
in remainder releases all his right to the particu-
lar tenant and his heirs, this gives him the estate
in fee. 1 Steph.Comm. 518.
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ENLARGING
ENLARGING. Extending, or making more com-
prehensive; as an enlarging statute, which is a
remedial statute enlarging or extending the. com-
mon law. 1 Bl.Comm. 86, 87.
ENLISTMENT. The act of one who voluntarily
enters the military or naval service of the govern-
ment, contracting to serve in a subordinate ca-
pacity. Morrissey v. Perry, 137 U.S. 157, 11 Sup.
Ct. 57, 34 L.Ed. 644; Babbitt v. U. S., 16 Ct.C1. 213.
The words "enlist" and "enlistment," in law, as in com-
mon usage, may signify either the complete fact of enter-
ing into the military service, or the first step taken by the
recruit towards th4 end. When used in the former sense,
as In statutes conferring a right to compel the military
service of enlisted men, the enlistment is not deemed com-
pleted until the man has been mustered into the service.
Tyler v. Pomeroy, 8 Allen, Mass., 480.
Enlistment does not include the entry of a person into
the military service under a commission as an officer. Hil-
liard v. Stewartstown, 48 N.H. 280.
Enlisted applies to a drafted man as well as a volunteer,
whose name is duly entered on the military rolls. Sheffield
v. Otis, 107 Mass. 282.
ENORMIA. In old practice and pleading. Un-
lawful or wrongful acts; wrongs. Et alia enor-
mia, and other wrongs. This phrase constantly
occurs in the old writs and declarations of tres-
pass.
ENORMOUS. Aggravated. "So enormous a
trespass." Vaughan, 115. Written "enormious,"
in some of the old books. Enormious is where a
thing is made without a rule or against law.
Brownl. pt. 2, p. 19.
ENPLEET. Anciently used for implead. Cowell.
ENQUtTE, or ENQUEST. In canon law. An
examination of witnesses, taken down in writing,
by or before an authorized judge, for the purpose
of gathering testimony to be used on a trial.
ENREGISTREMENT. In French law. Registra-
tion. A formality which consists in inscribing on
a register, specially kept for the purpose by the
government, a summary analysis of certain deeds
and documents. At the same time that such
analysis is inscribed upon the register, the clerk
places upon the deed a memorandum indicating
the date upon which it was registered, and at the
side of such memorandum an impression is made
with a stamp. Arg.Fr.Merc.Law, 558.
ENROLL. To register; to make a record; to en-
ter on the rolls of a court; to transcribe. Ream v.
Corn., 3 Serg. & R. (Pa.) 209; Anderson v. Com-
monwealth, 275 Ky. 232, 121 S.W.2d 46, 47.
ENROLLED BILL. In legislative practice, a bill
which has been duly introduced, finally passed by
both houses, signed by the proper officers of each,
approved by the governor (or president) and filed
by the secretary of state. Sedgwick County
Com'rs v. Bailey, 13 Kan. 608.
ENROLLMENT. The act of putting upon a roll.
A record made. Anderson v. Commonwealth, 275
Ky. 232, 121 S.W.2d 46, 47.
In English law. The registering or entering
on the rolls of chancery, king's bench, common
pleas, or exchequer, or by the clerk of the peace
in the records of the quarter sessions, of any law-
ful act; as a recognizance, a deed of bargain and
sale, and the like. Jacob.
ENROLLMENT OF VESSELS. In the laws of
the United States on the subject of merchant
shipping, the recording and certification of ves-
sels employed in coastwise or inland navigation;
as distinguished from the "registration" of ves-
sels employed in foreign commerce. U. S. V. Leet-
zel, 3 Wall. 566, 18 L.Ed. 67.
ENROLLMENT RECORDS. All the testimony
and exhibits tending to establish age that were in
evidence before the Commission to the Five Civil-
ized Tribes and the conclusions of the Commis-
sion based thereon from the date of the applica-
tion for enrollment of any particular individual
up to the date of the ascertainment by the Com-
mission as to whether the name of such person
was intended to be included upon the final roll of
the nation in which he claimed citizenship. Dun-
can v. Byars, 44 Okl. 538, 144 P. 1053, 1054.
ENS LEGIS. L. Lat. A creature of the law; an
artificial being, as contrasted with a natural per-
son. Applied to corporations, considered as de-
riving their existence entirely from the law.
ENSCHEDULE. To insert in a list, account, or
writing.
ENSEAL. To seal. Ensealing is still used as a
formal word in conveyancing.
ENSERVER. L. Fr. To make subject to a serv-
ice or servitude. Britt. c. 54.
ENSUE. To follow after; to follow in order or
train of events. Agricultural Publishers' Ass'n v.
Homestead Co., 197 Iowa, 380, 197 N.W. 314.
ENTAIL, .v. To settle or limit the succession to
real property; to create an estate tail.
ENTAIL, n. A fee abridged or limited to the is-
sue, or certain classes of issue, instead of descend-
ing to all the heirs. 1 Washb. Real Prop. 66;
Cowell; 2 Bl.Comm. 112, note.
Entail, in legal treatises, is used to signify an estate tail,
especially with reference to the restraint which such an
estate imposes upon its owner, or, in other words, the
points wherein such an estate differs from an estate in fee-
simple. And this is often its popular sense; but some-
times it is, in popular language, used differently, so as to
signify a succession of life-estates, as when it is said that
"an entail ends with A.," meaning that A. is the first per-
son who is entitled to bar or cut off the entail, being in
law the first tenant in tail. Mozley & Whiteley.
Break or Bar an Entail
To free an estate from the limitations imposed
by an entail, and permit its free disposition, an-
ciently by means of a fine or common recovery,
but now by deed in which the tenant and next
heir join.
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ENTERTAINMENT
Quasi Entail
An estate pur autre vie may be granted, not
only to a man and his heirs, but to a man and
the heirs of his body, which is termed a "quasi
entail;" the interest so granted not being proper-
ly an estate-tail, (for the statute De Donis applies
only where the subject of the entail is an estate
of inheritance,) but yet so far in the nature of an
estate-tail that it will go to the heir of the body
as special occupant during the life of the cestui
que vie, in the same manner as an estate of in-
heritance would descend, if limited to the grantee
and the heirs of his body. Wharton.
ENTAILED. Settled or limited to specified heirs,
or in tail.
ENTAILED MONEY. Money directed to be in-
vested in realty to be entailed. 3 & 4 Wm. IV, c.
74, §§ 70, 71, 72.
ENTAILMENT. An interference with and cur-
tailment of the ordinary rules pertaining to dev-
olution by inheritance; a limitation and direc-
tion by which property is to descend different
from the course which it would take if the creator
of the entailment, grantor or testator, had been
content that the estate should devolve in regular
and general succession to heirs at law in the statu-
tory order of precedence and sequence. Gardner
v. Anderson, 114 Kan. 778, 227 P. 743, 748.
ENTENCION. In old English law. The plaintiff's
count or declaration.
ENTENDMENT. The old form of intendment (q.
v.) derived directly from the French, and used to
denote the true meaning or signification of a word
or sentence; that is, the understanding or con-
struction of law. Cowell.
ENTER. To form a constituent part, to become
a part or partaker; to impenetrate; share; with
into; as, tin enters into the composition of pew-
ter. Bedford v. Colorado Fuel & Iron Corpora-
tion, 102 Colo. 538, 81 P.2d 752, 755.
In the law of real property. To go upon land
for the purpose of taking possession of it. In
strict usage, the entering is preliminary to the
taking possession but in common parlance the en-
try is now merged in the taking possession. See
Entry.
In practice. To place anything before a court,
or upon or among the records, in a formal and
regular manner, and usually in writing; as to "en-
ter an appearance," to "enter a judgment." In
this sense the word is nearly equivalent to setting
down formally in writing, in either a full or
abridged form.
ENTERCEUR. L. Fr. A party challenging
(claiming) goods; he who has placed them in the
hands of a third person. Kelham.
ENTERING. Generally synonymous with "re-
cording". In re Labb, D.C.N.Y., 42 F.Supp. 542,
544.
Black's Law Dictionary Revised 4th Ed.-40
ENTERING JUDGMENTS. The formal entry of
the judgment on the rolls of the court, which is
necessary before bringing an appeal or an action
on the judgment. Blatchford v. Newberry, 100
Ill. 491. The entering of judgment is a ministerial
act performed by the clerk of court by means of
which permanent evidence of judicial act in ren-
dering judgment is made a record of the court.
Jones v. Sun Oil Co., Tex.Civ.App., 145 S.W.2d
615, 619. Under some statutes, the entering con-
sists merely in the filing of a judgment with the
clerk; Mathison v. Anderson, 107 Wash. 617, 182
P. 622. But under other acts, the entry of a judg-
ment consists in the recording of it in the judg-
ment book. Wilson v. Durkee, 20 Cal.App. 492,
129 P. 617, 618.
Entry of judgment differs from rendition of
judgment. "Rendition" of a judgment is the ju-
dicial act of the court in pronouncing the sentence
of the law upon the facts in controversy. The
"entry" is a ministerial act, which consists in
spreading upon the record a statement of the final
conclusion reached by the court in the matter, thus
furnishing external and incontestable evidence of
the sentence given, and designed to stand as a
perpetual memorial of its action. Jaqua v. Har-
kens, 40 Ind.App. 639, 82 N.E. 920, 922; Beet-
chenow v. Bartholet, 162 Wash. 119, 298 P. 335,
336.
ENTERING SHORT. When bills not due are paid
into a bank by a customer, it is the custom of
some bankers not to carry the amount of the bills
directly to his credit, but to "enter them short,"
as it is called, i. e., to note down the receipt of the
bills, their amounts, and the times when they be-
come due in a previous column of the page, and
the amounts when received are carried forward
into the usual cash column. Sometimes, instead
of entering such bills short, bankers credit the
customer directly with the amount of the bills as
cash, charging interest on any advances they may
make on their account, and allow him at once to
draw upon them to that amount. If the banker
becomes bankrupt, the property in bills entered
short does not pass to his assignees, but the cus-
tomer is entitled to them if they remain in his
hands, or to their proceeds, if received, subject
to any lien the banker may have upon them.
Wharton.
ENTERPRISE. A project or undertaking. Size-
more v. Hall, 148 Kan. 233, 80 P.2d 1092, 1095. In,
Workmen's Compensation Law. A hazardous un-
dertaking or project. Hahnemann Hospital v. In-
dustrial Board of Illinois, 282 Ill. 316, 118 N.E. 767,
770.
ENTERTAINMENT. This word is synonymous
with "board," and includes the ordinary neces-
saries' of life. See Lasar v. Johnson, 125 Cal. 549,
58 P. 161. Hospitable provision for the wants of
a guest, especially a provision for the table. That
which serves as amusement. Young v. Board of
Trustees of Broadwater County High School, 90
Mont. 576, 4 P.2d 725, 726.
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ENTHUSIASTS
ENTHUSIASTS. Those who believe far more
than they can prove and can prove far more than
any one else can believe. Peskind v. State, 115
Ohio St. 279, 152 N.E. 670.
ENTICE. To wrongfully solicit, persuade, pro-
cure, allure, attract, draw by blandishment, coax
or seduce. Nash v. Douglass, 12 Abb.Prac.N.S.,
N.Y., 190. To lure, induce, tempt, incite, or per-
suade a person to do a thing. Berger v. Levy, 5
Cal.App.2d 544, 43 P.2d 610, 611.
ENTIRE. Whole; without division, separation, or
diminution; unmingled; complete in all its parts;
not participated in by others. 15 Cyc. 1054; 11
Amer. & Eng. Enc. Law, 48; People v. Tahaures
Purchase, 26 N.Y.S.2d 795, 813.
ENTIRE ACT. The words "entire Act" as used
in the rule of statutory construction that it is the
duty of the court to examine the entire act means
the caption, the body of the act, and the emergen-
cy clause. Anderson v. Penix, 138 Tex. 596, 161
S.W.2d 455, 459.
ENTIRE BALANCE OF MY ESTATE. The res-
idue. In re Taylor's Estate, 86 A. 708, 711, 239
Pa. 153; In re Brothers' Estate, 156 Pa.Super. 292,
40 A.2d 156, 157.
ENTIRE BLOOD. Relations of the "entire blood"
are those derived not only from the same ances-
tor, but from the same couple of ancestors. In
re Skidmore's Estate, 266 N.Y.S. 312, 148 Misc. 569.
ENTIRE CONTRACT. See Contract.
ENTIRE DAY. This phrase signifies an undivid-
ed day, not parts of two days. An entire day must
have a legal, fixed, precise time to begin, and a
fixed, precise time to end. A day, in contempla-
tion of law, comprises all the twenty-four hours,
beginning and ending at twelve o'clock at night.
Robertson v. State, 43 Ala. 325. In a statute re-
quiring the closing of all liquor saloons during
"the entire day of any election," etc., this phrase
means the natural day of twenty-four hours, com-
mencing and terminating at midnight. Haines v.
State, 7 Tex.App. 30.
ENTIRE INTEREST. The whole interest or right,
without diminution. Where a person in selling his
tract of land sells also his entire interest in all
improvements upon public land adjacent thereto,
this vests in the purchaser only a quitclaim of his
interest in the improvements. McLeroy v. Duck-
worth, 13 La.Ann. 410.
ENTIRE LOSS OF SIGHT. In respect of one eye,
or both. Substantial blindness, not necessarily
absolute. International Travelers' Ass'n v. Rog-
ers, Tex.Civ.App., 163 S.W. 421, 422. There was
"entire loss of sight" of eye within accident policy,
where insured could not distinguish one object
from another in the strongest light, though he
could distinguish between light and darkness.
Tracey v. Standard Acc. Ins. Co., 119 Me. 131, 109
A. 490, 494, 9 A.L.R. 521. Locomotive Engineers'
Mut. Life Accident Ins. Co. v. Meeks, 157 Miss. 57,
127 So. 699, 702. See Blind; Complete and Per-
manent Loss of Sight of Both Eyes.
ENTIRE STRUCTURE. Under lien statute. Not
a completed, as distinguished from an uncomplet-
ed, building, but a new structure, not before exist-
ing, as distinguished from betterments and repairs
on previously constructed improvements. Atkin-
son v. Colorado Title & Trust Co., 59 Colo. 528,
151 P. 457, 461.
ENTIRE TENANCY. A sole possession by one
person, called "severalty," which is contrary to
several tenancy, where a joint or common posses-
sion is in one or more.
ENTIRE USE, BENEFIT, etc. These words in
the habendum of a trust-deed for the benefit of a
married woman are equivalent to the words "sole
use," or "sole and separate use," and consequent-
ly her husband takes nothing under such deed.
Heathman v. Hall, 38 N.C. 414.
ENTIRELY WITHOUT UNDERSTANDING. Ina-
bility to comprehend nature and effect of transac-
tion involved, not necessarily absolute imbecility,
idiocy or mental incapacity. Barlow v. Strange,
120 Ga. 1015, 1018, 48 S.E. 344.
ENTIRETY. The whole, in contradistinction to
a moiety or part only. When land is conveyed
to husband and wife, they do not take by moie-
ties, but both are seised of the entirety. 2 Kent,
Comm. 132; 4 Kent, Comm. 362. Parceners, on
the other hand, have not an entirety of interest,
but each is properly entitled to the whole of a dis-
tinct moiety. 2 Bl.Comm. 188. See Estate by the
Entirety.
The word is also used to designate that which
the law considers as ,one whole, and not capable
of being divided into parts. Thus, a judgment,
it is held, is an entirety, and, if void as to one of
the two defendants, cannot be valid as to the oth-
er. So, if a contract is an entirety, no part of the
consideration is due until the whole has been per-
formed.
ENTITLE. In its usual sense, to entitle is to give
a right or title. Felter v. McClure, 135 Wash. 410,
237 P. 1010, 1011. To qualify for; to furnish with
proper grounds for seeking or claiming. Fitts v.
Terminal Warehousing Corporation, 170 Tenn. 198,
93 S.W.2d 1265, 1267. In re Graves, 325 Mo. 888,
30 S.W.2d 149, 151. In ecclesiastical law. To en-
title is to give a title or ordination as a minister.
ENTITY. A real being; existence. Department
of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277,
281.
ENTRAILS. Intestines. "Entrails" of a calf do
not include pluck and sweetbread. Common-
wealth v. Cohen, 250 Mass. 570, 146 N.E: 228, 230.
ENTRANCE. A door or gate for entering; a
gate; an opening, and perhaps a passage. Wea-
therby v. Travelers Indemnity Co., Tex.Civ.App.,
171 S.W.2d 540, 541.
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ENTRY
ENTRAP. To catch, to entrap, to ensnare; hence,
to catch by artifice; to involve in difficulties or
distresses; to catch or involve in contradictions.
Roane v. State, 55 Okl.Cr. 332, 29 P.2d 990, 992.
ENTRAPMENT. The act of officers or agents of
the government in inducing a person to commit
a crime not contemplated by him, for the purpose
of instituting a criminal prosecution against him.
Falden v. Commonwealth, 167 Va. 549, 189 S.E.
329, 332. Lee v. State, 66 Okl.Cr. 399, 92 P.2d 621,
623. But the mere . act of an officer in furnishing
the accused an opportunity to commit the crime,
where the criminal intent was already present in
the accused's mind, is not ordinarily entrapment.
State v. Cowling, 161 Wash. 519, 297 P. 172, 174.
ENTREATY. Beseeching, or suppliant, or prayer-
ful in nature. In re Sloan's Estate, 7 Cal.App.2d
319, 46 P.2d 1007, 1018.
ENTREBAT. L. Fr. An intruder or interloper.
Britt. c. 114.
ENTREGA. Span. Delivery. Las Partidas, pt.
6, tit. 14, 1. 1.
ENTREPOT. A warehouse or magazine for the
deposit of goods. In France, a building or place
where goods from abroad may be deposited, and
from whence they may be withdrawn for expor-
tation to another country, without paying a duty.
Brande; Webster.
ENTRY. The act of making or entering a record;
a setting down in writing of particulars; or that
which is entered; an item. United States v. Dar-
by, D.C.Md., 2 F.Supp. 378, 379. Generally synony-
mous with "recording." In re Labb, D.C.N.Y., 42
F.Supp. 542, 544.
Passage leading into a house or other building
or to a room; a vestibule. Weatherby v. Trav-
elers Indemnity Co., Tex.Civ.App., 171 S.W.2d 540,
541.
In commercial law. Entry denotes the act of a.
merchant, trader, or other business man in re-
cording in his account-books the facts and circum-
stances of a sale, loan, or other transaction. Also
the note or record so made. Bissell v. Beckwith,
32 Conn. 517; U. S. v. Crecelius, D.C.Mo., 34 F. 30.
The books in which such memoranda are first (or
originally) inscribed are called "books of original
entry," and are prima facie evidence for certain
purposes.
In copyright law. Depositing with the register
of copyrights the printed title of a book, pamphlet,
etc., for the purpose of securing copyright on the
same. The old formula for giving notice of copy-
right was, "Entered according to act of congress,"
etc.
In criminal law. Entry is the unlawful making
one's way into a dwelling or other house, for the
purpose of committing a crime therein.
In cases of burglary, the least entry with the whole or
any part .of the body, hand, or foot, or with any instru-
ment or weapon, introduced for the purpose of committing
a felony, is sufficient to complete the offense. 3 Inst. 64.
And see Walker v. State, 63 Ala. 49, 35 Am.Rep. 1. State
v. Chappell, 185 S.C. 111, 193 S.E. 924, 925.
In customs law. The entry of imported goods
at the custom house consists in submitting them
to the inspection of the revenue officers, together
with a statement or description of s'ich goods, and
the original invoices of the same, for the purpose
of estimating the duties to be paid thereon. U. S.
v. Legg, 105 F. 930, 45 C.C.A. 134.
In mining law. A place in coal mines used by
the miners and other workmen generally in going
to and from their work, through which coal is
hauled from the necks of the rooms to the foot of
the shaft; a "room" being the place in which a
miner works and from which he mines coal. Ri-
cardo v. Central Coal & Coke Co., 100 Kan. 95, 163
P. 641, 643.
In parliamentary law. The "entry" of a pro-
posed constitutional amendment or of any other
document or transaction in the journal of a house
of the legislature consists in recording it in writ-
ing in such journal, and (according to most of the
authorities) at length. See Koehler v. Hill, 60
Iowa, 543, 15 N.W. 609.
In practice. Entry denotes the formal inscrip-
tion upon the rolls or records of a court of a note
or minute of any of the proceedings in an action;
and it is frequently applied to the filing of a pro-
ceeding in writing, such as a notice of appearance
by a defendant, and, very generally, to the filing of
the judgment roll as a record in the office of the
court. Thomason v. Ruggles, 69 Cal. 465, 11 P. 20.
In public land laws. Under the provisions of
the land laws of the United States, the term "en-
try" denotes the filing at the land-office, or in-
scription upon its records, of the documents re-
quired to found a claim for a homestead or pre-
emption right, and as preliminary to the issuing
of a patent for the land. Chotard v. Pope, 12
Wheat. 588, 6 L.Ed. 737; Stephens v. Terry, 178
Ky. 129, 198 S.W. 768, 771.
The word "entry," as used in the public land
laws, covers all methods by which a right to ac-
quire title to public lands may be initiated. Unit-
ed States v. Northern Pac. Ry. Co., C.C.Mont., 204
F. 485, 487.
Homestead Entry
An entry under the United States land laws for
the purpose of acquiring title to a portion of the
public domain under the homestead laws, consist-
ing of an affidavit of the claimant's right to enter,
a formal application for the land, and payment
of the money required. Whitmire v. Spears, 212
Ala. 583, 103 So. 668, 669.
Mineral Land Entry
Filing a claim to hold or purchase lands be-
longing to the public domain and valuable for the
minerals they contain, implying a prior discovery
of ore and the opening of a mine. U. S. v. Four
Bottles Sour Mash Whisky, D.C.Wash., 90 F. 720.
Pre-emption Entry
An entry of public lands for purchase under the
pre-emption laws, giving the entryman a pre-
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ENTRY
ferred right to, acquire the land by virtue of his
occupation and improvement of it. Hartman v.
Warren, 76 F. 161, 22 C.C.A. 30.
Timber Culture Entry
An entry of public lands under the various acts
of congress opening portions of the public do-
main to settlement and to the acquisition of title
by the settlers on condition of the planting and
cultivation of timber trees. Hartman v. Warren,
76 F. 160, 22 C.C.A. 30.
In real property law. Entry is the act of going
peaceably upon a piece of land which is claimed
as one's own, but is held by another person, with
the intention and for the purpose of taking posses-
sion of it.
Entry is a remedy which the law affords to an injured
party ousted of his lands by another person who has taken
possession thereof without right. This remedy (which
must in all cases be pursued peaceably) takes place in
three only out of the five species of ouster, viz., abatement,
intrusion, and disseisin; for, as in these three cases the
original entry of the wrong-doer is unlawful, so the wrong
may be remedied by the mere entry of the former posses-
sor. But it is otherwise upon a discontinuance or deforce-
ment, for in these latter two cases the former possessor
cannot remedy the wrong by entry, but must do so by
action, inasmuch as the original entry being in these cases
lawful, and therefore conferring an apparent right of pos-
session, the law will not suffer such apparent right to be
overthrown by the mere act or entry of the claimant.
Brown. Johnson v. Cobb, 29 S.C. 372, 7 S.E. 601.
Forcible Entry
See that title.
Open Entry
An entry upon real estate, for the purpose of
taking possession, which is not clandestine nor
effected by secret artifice or stratagem, and (in
some states by statute) one which is accomplished
in the presence of two witnesses. Thompson v.
Kenyon, 100 Mass. 108.
Re-Entry
The resumption of the possession of leased
premises by the landlord on the tenant's failure to
pay the stipulated rent or otherwise to keep the
conditions of the lease.
In Scotch law. The term refers to the acknowl-
edgment of the title of the heir, etc., o be admit-
ted by the superior.
ENTRY AD COMMUNEM LEGEM. Entry at
common law. The name of a writ of entry which
lay for a reversioner after the alienation and death
of the particular tenant for life, against him who
was in possession of the land. Brown.
ENTRY AD TERMINUM QUI PRZETERIIT. The
writ of entry ad terminum qui prceteriit lies where
a man leases land to another for a term of years,
and the tenant holds over his term. And if lands
be leased to a man for the term of another's life,
and he for whose life the lands are leased dies,
and the lessee holds over, then the lessor shall
have this writ. Termes de la Ley.
ENTRY BY COURT. Acts 1923, c. 6, amending
Acts 1921, c. 112, § 138, provides that county court
may enter upon lands and build roads and within
60 days after such entry shall petition for assess-
ment of compensation. An "entry" within stat-
ute means the establishing of the road on, and ap-
propriation of, the land, by a proper order of the
county court. To effect an entry under the statute
it is not necessary that the county court go upon
the lands and begin the work of construction. Mc-
Gibson v. Roane County Court, 95 W.Va. 338, 121
S.E. 99, 104.
ENTRY FOR MARRIAGE IN SPEECH. A writ of
entry causa matrimonii prceloquuti lies where
lands or tenements are given to a man upon con-
dition that he shall take the donor to be his wife
within a certain time, and he does not espouse
her within the said term, or espouses another
woman, or makes himself priest. Termes de la
Ley.
ENTRY IN CASU CONSIMILI. A writ of entry
in casu consimili lies where a tenant for life or
by the curtesy aliens in fee. Termes de la Ley.
ENTRY IN REGULAR COURSE OF BUSINESS.
A record setting forth a fact or transaction made
by one in the ordinary and usual course of one's
business, employment, office or profession, which
it was the duty of the enterer in such manner
to make, or which was commonly and regularly
made, or which it was convenient to make, in the
conduct of the business to which such entry per-
tains. Leonard v. State, 100 Ohio St. 456, 127 N.E.
464, 468.
ENTRY IN THE CASE PROVIDED. A writ of
entry in casu proviso lies if a tenant in dower
alien in fee, or for life, or for another's life, liv-
ing the tenant in dower. Termes de la Ley.
ENTRY OF CAUSE FOR TRIAL. In English
practice. The proceeding by a plaintiff in an ac-
tion who had given notice of trial, depositing
with the proper officer of the court the nisi prius
record, with the panel of jurors annexed, and
thus bringing the issue before the court for trial.
ENTRY OF JUDGMENT. See Entering Judg-
ment.
ENTRY ON THE ROLL. In former times, the
parties to an action, personally or by their coun-
sel, used to appear in open court and make their
mutual statements viva voce, instead of as at the
present day delivering their mutual pleadings, un-
til they arrived at the issue or precise point in
dispute between them. During the progress of
this oral statement, a minute of the various pro-
ceedings was made on parchment by an officer of
the court appointed for that purpose. The parch-
ment then became the record; in other words, the
official history of the suit. Long after the prac-
tice of oral pleading had fallen into disuse, it con-
tinued necessary to enter the proceedings in like
manner upon the parchment roll, and this was
called "entry on the roll," or making up the "issue
roll." But by a rule of H. T. 4 Wm. IV. the prac-
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tice of making up the issue roll was abolished;
and it was only necessary to make up the issue in
the form prescribed for the purpose by a rule of
H. T. 1853, and to deliver the same to the court
and to the opposite party. The issue which was
delivered to the court was called the "nisi prius
record;" and that was regarded as the official
history of the suit, in like manner as the issue roll
formerly was. Under the present practice, the
issue roll or nisi prius record consists of the pa-
pers delivered to the court, to facilitate the trial of
the action, these papers consisting of the pleadings
simply, with the notice of trial. Brown.
ENTRY WITHOUT ASSENT OF THE CHAPTER.
A writ of entry sine assensu capituli lies where an
abbot, prior, or such as hath covent or common
seal, aliens lands or tenements of the right of his
church, without the assent of the covent or chap-
-ter, and dies. Termes de la Ley.
ENTRY, WRIT OF. In old English practice. This
was a writ made use of in a form of real action
brought to recover the possession of lands from
one who wrongfully withheld the same from the
demandant.
Its object was to regain the possession of lands of which
the demandant, or his ancestors, had been unjustly
deprived by the tenant of the freehold, or those under
whom he claimed, and hence it belonged to the possessory
division of real actions. It decided nothing with respect
to the right of property, but only restored the demandant
to that situation in which he was (or by law ought to have
been) before the dispossession committed. 3 Bl.Comm. 180.
It was usual to specify in such writs the degree or
degrees within which the writ was brought, and it was
said to be "in the per" or "in the per and cui," according
as there had been one or two descents or alienations from
the original wrongdoer. If more than two such transfers
had intervened, the writ was said to be "in the post." See
3 Bl.Comm. 181. See, further, Writ of Entry.
ENTRYMAN. One who makes an entry of land
under the public land laws of the United States.
Indian Cove Irr. Dist. v. Prideaux, 25 Idaho 112,
136 P. 618, 620, Ann.Cas.1916A, 1218.
ENUMERATED. This term is often used in law
as equivalent to "mentioned specifically," "desig-
nated," or "expressly named or granted"; as in
speaking of "enumerated" governmental powers,
items of property, or articles in a tariff schedule.
See Bloomer v. Todd, 3 Wash.T. 599, 19 P. 135, 1
L.R.A. 111.
ENUMERATIO INFIRMAT REGULAM IN CASI-
BUS NON ENUMERATIS. Enumeration disaf-
firms the rule in cases not enumerated. Bac.Aph.
17.
ENUMERATIO UNIUS EST EXCLUSIO AL-
TERIUS. The specification of one thing is the ex-
clusion of a different thing. A maxim more gen-
erally expressed in the form "expressio unius est
exclusio alterius," (q. v.).
ENUMERATORS. Persons appointed to collect
census papers or schedules. 33 & 34 Viet. c. 108,
§ 4.
ENURE. To operate or take effect. To serve to
the use, benefit, or advantage of a person. A re,
lease to the tenant for life enures to him in re-
version; that is, it has the same effect for him as
for the tenant for life. Often written "inure."
ENVELOPE. That which envelops; a wrapper;
an inclosing cover; especially, the cover or wrap-
per of a document, as of a letter. In re Eastman
Kodak Co., Cust. & Pat.App., 80 F.2d 270, 271, 272.
ENVOY. In international law. A public minister
of the second class, ranking next after an ambassa-
dor.
Envoys are either ordinary or extraordinary; by
custom the latter is held in greater consideration.
ENZYME. Any one of a series of catalytic agents,
animal or vegetable, produced by living cells, ef-
fecting chemical change in absorbed or surround-
ing substances so as to render them fit for the
requirements of the cells. In re Reese, Cust. &
Pat.App., 143 F.2d 1021.
EO DIE. Lat. On that day; on the same day.
EO INSTANT!. Lat. At that instant; at the
very or same instant; immediately. 1 Bl.Comm.
196, 249; 2 Bl.Comm. 168; Co.Litt. 298a; 1 Coke
138. Also written eo instante.
EO INTUITU. Lat. With or in that view; with
that intent or object. Hale, Anal. § 2.
EO LOCI. Lat. In the civil law. In that state
or condition; in that place, (eo loco.) Calvin.
EO NOMINE. Lat. Under that name; by that
appellation. Perinde ac si eo nomine tibi tradita
fuisset, just as if it had been delivered to you by
that name. Inst. 2, 1, 43. A common phrase in
the books.
EODEM LIGAMINE QUO LIGATUM EST DIS-
SOLVITUR. A bond is released by the same for-
malities with which it is contracted. Co.Litt.
212b; Broom, Max. 891.
EODEM MODO QUO QUID CONSTITUITUR, DIS-
SOLVITUR. In the manner in which [by the
same means by which] a thing is constituted, is.
it dissolved. 6 Coke, 53b.
EORLE. In Saxon law. An earl.
EOTH. In Saxon law. An oath.
EPICYCLOIDAL CURVE. A curve generated by
the motion of a point on the circumference of a
circle which rolls upon the convex side of a fixed
circle. Hill v. Hill, Cust. & Pat.App., 54 F.2d 950,
952.
EPIDEMIC. This term, in its ordinary and popu-
lar meaning, applies to any disease which is wide-
ly spread or generally prevailing at a given place
and time. Bethlehem Steel Co. v. Industrial Acci-
dent Commission, 21 Ca1.2d 742, 135 P.2d 153, 157;
Martin v. Springfield City Water Co., Mo.App., 128
S.W.2d 674, 679.
EPILEPSY. In medical jurisprudence. A disease
of the brain, which occurs in paroxysms with un-
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EPILEPSY
certain intervals between them. Vulgarly called
"fits." Westphall v. Metropolitan Life Ins. Co., 27
Cal.App. 734, 151 P. 159, 182; Morse v. Caldwell,
55 Ga.App. 804, 191 S.E. 479, 485.
The disease is generally organic, though it may be func-
tional and symptomatic of irritation in other parts of the
body. The attack is characterized by loss of consciousness,
sudden falling down, distortion of the eyes and face, grind-
ing or gnashing of the teeth, stertorous respiration, and
more or less severe muscular spasms or convulsions. Epi-
lepsy, though a disease of the brain, is not to be regarded
as a form of insanity, in the sense that a person thus
afflicted can be said to be permanently insane, for there
may be little or no mental aberration in the intervals
between the attacks. But the paroxysm is frequently fol-
lowed by a temporary insanity, varying in particular
instances from slight alienation to the most violent mania.
In the latter form the affection is known as "epileptic
fury." But this generally passes off within a few days.
But the course of the principal disease is generally one of
deterioration, the brain being gradually more and more
deranged in its functions in the intervals of attack, and
the memory and intellectual powers in general becoming
enfeebled, leading to a greatly impaired state of mental
efficiency, or to dementia, or a condition bordering on
imbecility. See Aurentz v. Anderson, 3 Pittsb.R., Pa., 310;
Lawton v. Sun Mutual Ins. Co., 2 Cush., Mass., 517.
Hystero-epilepsy. A condition initiated by an ap-
parently mild attack of convulsive hysteria, fol-
lowed by an epileptiform convulsion, and suc-
ceeded by a period of "clownism" (Osler) in which
the patient assumes a remarkable series of droll
contortions or cataleptic poses, sometimes simulat-
ing attitudes expressive of various passions, as,
fear, joy, erotism, etc. The final stage is one of
delirium with unusual hallucinations. The attack
differs from true epilepsy in that the convulsions
may continue without serious result for several
successive days, while true epilepsy, if persistent,
is always serious, associated with fever, and fre-
quently fatal.
EPIMENIA. Expenses or gifts. Blount.
EPIPHANY. A Christian festival, otherwise
called the "Manifestation of Christ to the Gen-
tiles," observed on the 6th of January, in honor of
the appearance of the star to the three magi, or
wise men, who came to adore the Messiah, and
bring him presents. It is commonly called
"Twelfth Day." Enc.Lond.
EPIPHYSEITIS. Inflammation of an epiphysis—
a process of bone attached for a time to another
bone by cartilage. Eckenroad v. Rochester &
Pittsburgh Coal Co., 149 Pa.Super. 257, 27 A.2d 759,
761.
EPIPHYSEAL SEPARATION. Not a bone frac-
ture in true sense, but a separation of the fibers
and cartilaginous tissues which attach the epiphy-
sis to the femur. Eisen v. State Farmers Mut.
Ins. Co., 219 Minn. 315, 17 N.W.2d 652, 655.
EPIPHYSIS. Part or process of a bone which os-
sifies separately and subsequently becomes anky-
losed (to grow together into one) into the main
part of the bone. Eisen v. State Farmers Mut.
Ins. Co., 219 Minn. 315, 17 N.W.2d 652, 655.
EPIQUEYA. In Spanish law. A term synony-
mous with "equity" in one of its senses, and de-
fined as "the benignant and prudent interpretation
of the law according to the circumstances of the
time, place, and person."
EPISCOPACY. The office of overlooking or over-
seeing; the office of a bishop, who is to overlook
and oversee the concerns of the church. A form
of church government by diocesan bishops. Trus-
tees of Diocese of Central New York v. Colgrove, 4
Hun (N.Y.) 366.
EPISCOPALIA. In ecclesiastical law. Synodals,
pentecostals, and other customary payments from
the clergy to their diocesan bishop, formerly col-
lected by the rural deans. Cowell.
EPISCOPALIAN. Of or pertaining to episcopacy,
or to the Episcopal Church.
EPISCOPATE. A bishopric. The dignity or office
of a bishop.
EPISCOPORUM ECDICUS. Bishop's proctors;
church lawyers. 1 Reeve, Eng.Law, 65.
EPISCOPUS. In the civil law. An overseer; an
inspector. A municipal officer who had the charge
and oversight of the bread and other provisions
which served the citizens for their daily food.
Vicat. In medieval history. A bishop; a bishop of
the Christian church.
EPISCOPUS ALTERIUS MANDATO QUAM RE-
GIS NON TENETUR OBTEMPERARE. Co.Litt.
134. A bishop needs not obey any mandate save
the king's.
EPISCOPUS PUERORUM. It was an old custom
that upon certain feasts some lay person should
plait his hair, and put on the garments of a bishop,
and in them pretend to exercise episcopal jurisdic-
tion, and do several ludicrous actions, for which
reason he was called "bishop of the boys;" and
this custom obtained in England long after several
constitutions were made to abolish it. Blount.
EPISCOPUS TENEAT PLACITUM, IN CURIA
CHRISTIANITATIS, DE IIS QUA MERE SUNT
SPIRITUALIA. 12 Coke, 44. A bishop may hold
plea in a Court Christian of things merely spir-
itual.
EPISTOLA. A letter; a charter; an instrument
in writing for conveyance of lands or assurance of
contracts. Calvin.; Spelman.
EPISTOLIE. In the civil law. Rescripts; opin-
ions given by the emperors in cases submitted to
them for decision.
Answers of the emperors to petitions.
The answers of counsellors, (juris-consulti,) as
Ulpian and others, to questions of law proposed
to them, were also called "epistolce."
Opinions written out. The term originally signi-
fied the same as literce. Vicat.
EPOCH. The time at which a new computation is
begun; the time whence dates are numbered. Enc.
Lond.
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EQUAL. Alike; uniform; on the same plane or
level with respect to efficiency, worth, value,
amount, or rights. People v. Hoffman, 116 Ill.
587, 5 N.E. 600, 56 Am.Rep. 793.
EQUAL AND UNIFORM TAXATION. Taxes are
said to be "equal and uniform" when no person or
class of persons in the taxing district, whether it
be a state, county, or city, is taxed at a different
rate than are other persons in the same district
upon the same value or the same thing, and where
the objects of taxation are the same, by whomso-
ever owned or whatsoever they may be. Weather-
ly Independent School Dist. v. Hughes, Tex.Civ.
App., 41 S.W.2d 445, 447.
EQUAL DEGREE. Persons are said to be related
to a decedent "in equal degree" when they are all
removed by an equal number of steps or degrees.
from the common ancestor. Fidler v. Higgins, 21
N.J.Eq. 162; Helmes v. Elliott, 14 S.W. 930, 89
Tenn. 446, 10 L.R.A. 535.
EQUAL ELECTION. Elections are "equaf," when
vote of each voter is equal in its influence upon
result to vote of every other elector. Blue v.
State ex rel. Brown, 206 Ind. 98, 188 N.E. 583, 589,
91 A.L.R. 334.
EQUAL PROTECTION OF THE LAWS. The
equal protection of the laws of a state is extended
to persons within its jurisdiction, within the mean-
ing of the constitutional requirement, when its
courts are open to them on the same conditions as
to others, with like rules of evidence and modes
of procedure, for the security of their persons and
property, the prevention and redress of wrongs,
and the enforcement of contracts; when they are
subjected to no restrictions in the acquisition of
property, the -enjoyment of personal liberty, and
the pursuit -of happiness, which do not generally
affect others; when they are liable to no other or
greater burdens and charges than such as are laid
upon others; and when no different or greater
punishment is enforced against them for a viola-
tion of the laws. State v. Montgomery, 94 Me.
192, 47 A. 165.
"Equal protection of the law" means that equal protec-
tion and security shall be given to all under like circum-
stances in his life, his liberty, and his property, and in the
pursuit of happiness, and in the exemption from any
greater burdens and charges than are equally imposed
upon all others under like circumstances. Sovereign Camp,
W. 0. W., v. Casodos, D.C.N.M., 21 F.Supp. 989, 994.
EQUAL WATCHES. Under statute requiring di-
vision of sailors at sea into equal watches, "equal
watches" means successive and continuous watch-
es to be constituted in numbers as nearly equal as
the sum of the whole number will permit. New
York & Cuba Mail S. S. Co. v. Continental Ins. Co.
of City of New York, C.C.A.N.Y., 117 F.2d 404, 409.
EQUALITY. The condition of possessing sub-
stantially the same rights, privileges, and immuni-
ties, and being liable to substantially the same du-
ties. Louisville & N. R. Co. v. Commonwealth,
160 Ky. 769, 170 S.W. 162, Ann.Cas.1916A, 405.
EQUALIZATION. The act or process of making
equal or bringing about conformity to a common
Standard. The process of equalizing assessments
or taxes, as performed by "boards of erualization"
in various states, consists in comparing the assess-
ments made by the local officers of the various
counties or other taxing districts within the ju-
risdiction of the board and reducing them to a
common and uniform basis, increasing or diminish-
ing by such percentage as may be necessary, so as
to bring about, within the entire territory affected,
a uniform and equal ratio between the assessed
value and the actual cash value of property. The
term is also applied to a similar process of leveling
or adjusting the assessments of individual taxpay-
ers, so that the property of one shall not be as-
sessed at a higher (or lower) percentage of its
market value than the property of another. See
Harney v. Mitchell County, 44 Iowa 203.
EQUALIZE. To make equal, to cause to cor-
respond, or be like in amount or degree, as com-
pared with something. Los Angeles County v.
Ransohoff, 24 Cal.App.2d 238, 74 P.2d 828, 830;
De Mille v. Los Angeles County, Cal.App., 77 P.2d
905, 906.
EQUALLY DIVIDED. Provision in will that prop-
erty shall be "equally divided," or divided "share
and share alike" means that the property shall be
divided per capita and not per stirpes. However,
these phrases may be so modified by other parts
of the will as to require distribution per stirpes.
In re Mays' Estate, 197 Mo.App. 555, 196 S.W.
1039, 1040.
EQUERRY. An officer of state under the master
of the horse.
EWES. Lat. In Roman and old English law. A
knight.
EQUILIBRIUM. As applied in chemistry, the bal-
anced state reached when the action apparently
stops in a chemical reaction, that is, the concen-
tration between reaction products and the original
reacting substances has become such that decom-
position and recombination proceeds with equal
speed. In re Sussman, 141 F.2d 267, 271, 31 C.C.
P.A.(Patents) 921.
EQUILOCUS. An equal. It is mentioned in Sim-
eon Dunelm, A.D. 882. Jacob.
EQUINOXES. The two periods of the year (ver-
nal equinox about March 21st, and autumnal equi-
nox about September 22d) when the time from the
rising of the sun to its setting is equal to the time
from its setting to its rising. See Dig. 43, 13,
1, 8.
EQUIP. To furnish for service or against a need
or exigency; to fit out; to supply with whatever
is necessary to efficient action in any way. Synon-
ymous with furnish. State ex rel. Davis v. Bar-
ber, 139 Fla. 706, 190 So. 809.
EQUIPMENT. Furnishings, or outfit for the re-
quired purposes. An exceedingly elastic term,
the meaning of which depends on context. Elliott
v. Payne, 293 Mo. 581, 239 S.W. 851, 852, 23 A.L.R.
706; Midland Special School Dist. of Sebastian
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EQUIPMENT
County, Ark., v. Central Trust Co. of Illinois, C.C.
A.Ark., 1 F.2d 124, 126.
Whatever is needed in equipping; the articles
comprised in an outfit; equippage. Department
of Treasury, Gross Income Tax Division, v. Ran-
ger-Cook, Inc., Ind.App., 49 N.E.2d 548, 550. Farm
& Home Saving & Loan Ass'n of Missouri v. Em-
pire Furniture Co., Tex.Civ.App., 87 S.W.2d 1111,
1112. Nearly synonymous with "instrumentality."
Nekoosa-Edwards Paper Co. v. Minneapolis St.
P. & S. S. M. Ry. Co., 217 Wis. 426, 259 N.W. 618,
but not synonymous with "maintenance". Neal
v. City of Morrilton, 192 Ark. 450, 92 S.W.2d
208, 209.
EQUITABLE. Just; conformable to the principles
of justice and right.
Just, fair, and right, in consideration of the
facts and circumstances of the individual case.
Existing in equity; available or sustainable only
in equity, or only upon the rules and principles
of equity.
As to "Fair and Equitable Value," see that title.
As to equitable "Assets," "Construction," "Conver-
sion," "Easement," "Ej ectment," "Estate," "Gar-
nishment," "Levy," "Mortgage," "Title," and
"Waste." see those titles.
EQUITABLE ACTION. One founded on an equity
or cognizable in a court of equity; or, more spe-
cifically, an action arising, not immediately from
the contract in suit, but from an equity in favor
of a third person, not a party to it, but for whose
benefit certain stipulations or promises were made.
Wenzel & Henoch Const. Co. v. Metropolitan Water
Dist. of Southern California, D.C.Cal., 18 F.Supp.
616, 620.
EQUITABLE ASSIGNMENT. An assignment
which, though invalid at law, will be recognized
and enforced in equity; e. g., an assignment of a
chose in action, or of future acquisitions of the as-
signor. Lewis v. Braun, 356 Ill. 467, 191 N.E. 56,
60; Stewart v. Kane, Mo.App., 111 S.W.2d 971,
974.
In order to work an "equitable assignment",
there must be an absolute appropriation by the
assignor of the debt or fund sought to be assigned.
Blount v. Metropolitan Life Ins. Co., 192 Ga. 325,
15 S.E.2d 413, 415; Sneesby v. Livington, 182 Wash.
229, 46 P.2d 733, 735.
EQUITABLE CONVERSION. A fiction which re-
sults in treating land as personalty and personalty
as land under certain circumstances. It takes
place when a contract for sale of realty becomes
binding on parties. Shay v. Penrose, 185 N.E.2d
218, 219, 25 Ill.2d 447; Panushka v. Panushka, 349
P.2d 450, 452, 221 Or. 145; Parr-Richmond Indus.
Corp. v. Boyd, 272 P.2d 16, 22, 43 C.2d 157.
EQUITABLE DEFENSE. A defense to an action
on grounds which, prior to the passing of the Com-
mon Law Procedure Act (17 and 18 Vict. c. 125),
would have been cognizable only in a court of eq-
uity. Moz. & W. In American practice, a de-
fense which is cognizable in a court of equity, but
which is available there only, and not in an action
at law, except under the reformed codes of prac-
tice. Kelly v. Hurt, 74 Mo. 561-570; City of New
York v. Holzderber, 90 N.Y.S. 63, 44 Misc. 509.
The codes of procedure and the practice in some of
the states likewise permit both a legal and eq-
uitable defense to the same action. Susquehanna
S. S. Co. v. A. 0. Andersen & Co., 239 N.Y. 285, 146
N.E. 381, 383. It has also been construed to mean
a defense which a court of equity would recognize,
or one founded on some distinct ground of eq-
uitable jurisdiction. City of New York v. Holzder-
ber, 44 Misc. 509, 90 N.Y.S. 63, 64.
EQUITABLE DOCTRINE OF APPROXIMATION.
This doctrine differs from "Cy pres doctrine" in
purpose and application. The last mentioned doc-
trine applies where an apparent charitable inten-
tion has failed, whether by an incomplete disposi-
tion at the outset or by subsequent inadequacy of
the original object, and its purpose is to give a cy
pres or proximate application to testator's inten-
tion, whereas the "equitable doctrine of approxi-
mation" merely authorizes a court of chancery to
vary the details of administration, in order to pre-
serve the trust, and carry out the general purpose
of the donor. National Bank of Greece v. Savari-
ka, 167 Miss. 571, 148 So. 649, 654.
EQUITABLE ELECTION. The choice to be made
by a person who may, under a will or other instru-
ment, have either one of two alternative rights or
benefits, but not both. Peters v. Bain, 133 U.S. 670,
10 S.Ct. 354, 33 L.Ed. 696.
The obligation imposed upon a party to choose
between two inconsistent or alternative rights or
claims, in cases where there is clear intention of
the person from whom he derives one that he
should not enjoy both. 2 Story, Eq.Jur. § 1075;
Dakan v. Dakan, 83 S.W.2d 620, 624, 125 Tex. 305.
A choice shown by an overt act between two
inconsistent rights, either of which may be as-
serted at the will of the chooser alone. Bierce v.
Hutchins, 205 U.S. 346, 27 S.Ct. 524, 51 L.Ed. 828;
Macbeth-Evans Glass Co. v. General Electric Co.,
C.C.A.Ohio, 246 F. 695, 701; Jenkins v. U. S., D.C.
R.I., 22 F.2d 568, 571.
EQUITABLE ESTOPPEL is that condition in
which justice forbids one to gainsay his own acts
or assertions. Goodwin Tile & Brick Co. v. De-
Vries, Iowa, 13 N.W.2d 310, 312, 155 A.L.R. 346.
The preclusion of person by his act or conduct
or silence from asserting rights which might oth-
erwise have existed. Marshall v. Wilson, Or., 154
P.2d 547, 551. The species of estoppel which equity
puts upon a person who has made a false repre-
sentation or a concealment of material facts, with
knowledge of the facts, to a party ignorant of the
truth of the matter, with the intention that the
other party should act upon it, and with the result
that such party is actually induced to act upon it,
to his damage. Bigelow, Estop. 484.
See, also, In Pais, Estoppel In.
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EQUITABLE RULt
Elements or essentials of such estoppel include change
of position for the worse by party asserting estoppel, Ma-
lone v. Republic Nat. Bank & Trust Co., Tex.Civ.App., 70
S.W.2d 809, 812; Clover v. Peterson, 203 Minn. 337, 281 N.
W. 275, 278; conduct by party estopped such that it would
be contrary to equity and good conscience for him to al-
lege and prove the truth, Rody v. Doyle, 181 Md. 195, 29
A.2d 290, 293; false representation or concealment of
facts, Clark v. National Aid Life Ass'n, 177 Okl. 137, 57
P.2d 832, 833; Antrim Lumber Co. v. Wagner, 175 Okl.
564, 54 P.2d 173, 176; ignorance of party asserting estoppel
of facts and absence of opportunity to ascertain them,
Trenton Banking Co. v. Howard, N.J.Ch., 187 A. 569, 574;
Fipps v. Stidham, 174 Old. 473, 50 P.2d 680, 684; injury
from declarations, acts, or omissions of party were he
permitted to gainsay their truth, Fleishbein v. Western
Auto Supply Agency, 19 Cal.App.2d 424, 65 P.2d 928; Rob-
erts v. Friedell, 218 Minn. 88, 15 N.W.2d 496, 500; inten-
tion that representation should be acted on, Stookesberry
v. Burgher, 220 Iowa 916, 262 N.W. 820; Consolidated Cut
Stone Co. v. Seidenbach, 181 Okl. 578, 75 P.2d 442, 452;
knowledge, actual or constructive, of facts by party estop-
ped, Antrim Lumber Co. v. Wagner, 175 Okl. 364, 54 P.2d
173, 176; Lillywhite v. Coleman, 46 Ariz. 523, 52 P.2d 1157,
1160; misleading person to his prejudice, United States,
for Use and Benefit of Noland Co., v. Wood, C.C.A.Va.,
99 F.2d 80, 82; omission, misconduct or misrepresentation
misleading another, Security Savings & Trust Co. v. Port-
land Flour Mills Co., 124 Or. 276, 261 P. 432, 437; reliance
upon representation or conduct of person sought to be es-
topped, Wilkinson v. Lieberman, 327 Mo. 420, 37 S.W.2d
533, 536, George W. Armbruster, Jr., Inc., v. City of Wild-
wood, D.C.N.J., 41 F.2d 823, 829.
Estoppel in pais and equitable estoppel are convertible
terms, Brown v. Corn Exchange Nat. Bank & Trust Co.,
42 A.2d 474, 480, 136 N.J.Eq. 430; State ex rel. Squire v.
Murfey, Blossom & Co., 131 Ohio St. 289, 2 N.E.2d 866, 870.
"Legal estoppel" excludes evidence of the truth and the
equity of the particular case to support a strict rule of law
on grounds of public policy whereas "equitable estoppel"
is admitted on exactly the opposite ground of promoting
the equity and justice of the individual case by preventing
a party from asserting his rights under a general technical
rule of law, when he has so conducted himself that it
would be contrary to equity and good conscience for . him to
allege and prove the truth. First Nat. Bank v. Boles, 231
Ala. 473, 165 So. 586, 592.
.Such estoppel may be based on acts, omission to act, rep-
resentations, admissions, concealment or silence, Carter v.
Curlew Creamery Co., 16 Wash.2d 476, 134 P.2d 66; West v.
Cleveland Ry. Co., Ohio App., 58 N.E.2d 799, 801; Ma-
honey v. Mahoney, Tex.Civ.App., 103 S.W.2d 459, 462.
EQUITABLE EXECUTION. This term is some-
times applied to the appointment of a receiver with
power of sale. Hatch v. Van Dervoort, 54 N.J.
Eq. 511, 34 A. 938.
Though a garnishment is not an "execution," garnish-
ment after execution is practically an equitable "execu-
tion" brought for purpose of reaching nonleviable assets,
issuing on judgment in somewhat same manner as an
"execution" and in immediate aid or in lieu thereof.
First Nat. Bank v. City Guaranty Bank of Hobart, 174 Okl.
545, 51 P.2d 573, 576.
EQUITABLE LIENS are such as exist in equity.
An equitable lien arises either from a written contract
which shows an intention to charge some particular prop-
erty with a debt or obligation or is implied and declared
by a court of equity out of general considerations of right
and justice as applied to relations of the parties and cir-
cumstances of their dealings, Owensboro Banking Co. v.
Lewis, 269 Ky. 277, 106 S.W.2d 1000, 1004; Clark v. Arm-
strong & Murphy, 180 Okl. 514, 72 P.2d 362, 365, 366; It is
a mere floating and ineffective equity until such time as
judgment or decree is rendered actually subjecting prop-
erty to the payment of the debt or claim, Langford v.
Fanning, Mo., 7 S.W.2d 726, 728; Nelson v. Nelson Neal
Lumber Co., 171 Wash. 55, 17 P.2d 626, 628, 92 A.L.R. 554.
It is founded upon an agreement indicating intention that
some specific property is to be held, given, or transferred
as security, In re Friedlander's Estate, 32 N.Y.S.2d 991,
994, 995, 178 Misc. 65. It is neither a jus in re nor jus ad
rem, Folsom v. Farmers' Bank of Vero Beach, 136 So. 524,
527, 102 Fla. 899; Clements v. Holmes, 22 Tenn.App. 230,
120 S.W.2d 988, 993; It is not an estate or property in the
thing itself or a right to recover the same. Foster v.
Thornton, 179 So. 882, 892; Jamison Coal & Coke Co. v.
Goltra, C.C.A.Mo., 143 F.2d 889, 893, 154 A.L.R. 1191; it
more properly constitutes a charge upon the thing. Eq-
uitable liens most commonly grow out of constructive
trusts. Story, Eq.Jur. § 1215; Jones v. Carpenter, 90 Fla.
407, 106 So. 127, 129, 43 A.L.R. 1409; Aldrich v. R. J.
Ederer Co., 302 Iii. 391, 134 N.E.•726, 728.
It is right by which a creditor is entitled to obtain sat-
isfaction of his debt by resort to specified property belong-
ing to debtor, Pincus v. Collins, 198 Miss. 283, 22 So.2d
361, 362; right of a special nature over property constitut-
ing a charge or incumbrance thereon. Miller v. Heisler,
Mo.App., 187 S.W.2d 485, 491; Gables Racing Assoc. v.
Persky, 148 Fla. 627, 6 So.2d 257, 262, 263; right, not rec-
ognized at law, to have a fund or specific property, or the
proceeds, applied in whole or in part to payment of a
particular debt or class of debts or obligation, Bank of
Aurora v. Aurora Co-Op. Fruit Growing & Marketing Ass'n,
Mo.App., 91 S.W.2d 177; Jamison Coal & Coke Co. v.
Goltra, C.C.A.Mo., 143 F.2d 889, 893, 154 A.L.R. 1191; Ship-
ley v. Metropolitan Life Ins. Co., 25 Tenn.App. 452, 158 S.
W.2d 739, 741; right over subject-matter of contract, where-
by obligee is enabled to follow identical thing to which lien
attaches and enforce obligation by remedy operating di-
rectly thereon, Bassett v. City Bank & Trust Co., 116 Conn.
617, 165 A. 557; right to have property subjected in court
of equity to payment of a claim, Theatre Realty Co. v.
Aronberg-Fried Co., C.C.A.Mo., 85 F.2d 383, 388; right to
proceed in an equitable action against the subject-matter
of the lien and have it sold or sequestered and its proceeds
or rents and profits applied to the demand of the owner
of the lien, Oppenheimer v. Szulerecki, 297 Ill. 81, 130 N.E.
325, 328, 28 A.L.R. 1439.
The equitable lien differs essentially from a common-law
lien, in that in the equitable lien, possession remains with
the debtor or person who holds the proprietary interest.
Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 129, 43 A.L.R.
1409.
Every express executory agreement in writing, whereby
the contracting party sufficiently indicates an intention
to make some particular property, real or personal, or fund
therein identified, a security for a debt or other obligation,
or whereby the party promises to convey, assign, or
transfer the property as security, creates an equitable lien
upon the property so indicated, which is enforceable
against the property. Knott v. Mfg. Co. 30 W.Va. 790, 5
S.E. 266; Geddes v. Reeves Coal & Dock
Co.,
 C.C.A.Minn.,
20 F.2d 48, 50, 54 A.L.R. 282; Root Mfg. Co. v. Johnson,
C.C.A.Ind., 219 F. 397, 406.
EQUITABLE RATE OF INTEREST. In England,
the interest, generally at a lower rate than legal,
charged against a trustee or executor improperly
or unnecessarily keeping balances or portion of
trust moneys in his hands. In re Ricker's Estate,
14 Mont. 153, 35 P. 960, 968, 29 L.R.A. 622.
EQUITABLE RECOUPMENT. Rule of the law
which diminishes the right of a party invoking
legal process to recover a debt, to the extent that
he holds money or property of his debtor, to which
he has no moral right, and it is ordinarily a de-
fensive remedy going only to mitigation of dam-
ages. Electric Storage Battery Co. v. Rothensies,
D.C.Pa., 57 F.Supp. 731, 735.
EQUITABLE RESCISSION. Rescission decreed
by court of equity, as distinguished from "legal
rescission" which is effected by restoration or
offer to restore. Mueller v. Michels, 184 Wis. 324,
199 N.W. 380, 382. ■
EQUITABLE RULE. In broad sense in which
term is sometimes used, signifies natural jus-
tice. In re New Jersey State Bar Ass'n, 111 N.J.
Eq. 234, 162 A. 99, 101.
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EQUITAS
EQUITAS SEQUITUR LEGEM. Equity follows
the law. Tallman v. Varick, 5 Barb. (N.Y.) 277,
282. Cas temp. Talb. 52; 1 Sto.Eq.Jur. § 64.
In respect of this maxim it has been said: "Op-
erative only within a very narrow range." 1
Pom.Eq.Jur. § 427. The reverse is quite as sound
a maxim; 9 Harv.L.Rev. 18. "The main business
of equity is avowedly to correct and supplement
the law." Phelps, Jurid.Eq. § 237. The English
Judicature Act, 1873, provides that when law and
equity conflict equity shall prevail. See Equity
Follows the Law.
EQUITATURA. In old English law. Traveling
furniture, or riding equipments, including horses,
horse harness, etc. Reg.Orig. 100b; St.Westm. 2,
c. 39.
EQUITY. In its broadest and most general sig-
nification, this term denotes the spirit and the hab-
it of fairness, justness, and right dealing which
would regulate the intercourse of men with men,
—the rule of doing to all others as we desire them
to do to us; or, as it is expressed by Justinian,
"to live honestly, to harm nobody, to render to
every man his due." Inst. 1, 1, 3. It is therefore
the synonym of natural right or justice. But in
this sense its obligation is ethical rather than jur-
al, and its discussion belongs to the sphere of mor-
als. It is grounded in the precepts of the con-
science, not in any sanction of positive law.
In a restricted sense, the word denotes equal
and impartial justice as between two persons
whose rights or claims are 'in conflict; justice,
that is, as ascertained by natural reason or ethic-
al insight, but independent of the formulated body
of law. This is not a technical meaning of the
term, except in so far as courts which administer
equity seek to discover it by the agencies above
mentioned, or apply it beyond the strict lines of
positive law. See Miller v. Kenniston, 86 Me. 550,
30 A. 114.
In a still more restricted sense, it is a system
of jurisprudence, or branch of remedial justice,
administered by certain tribunals, distinct from
the common-law courts and empowered to decree
"equity" in the sense last above given. Here it
becomes a complex of well-settled and well-under-
stood rules, principles, and precedents. Isabelle
Properties v. Edelman, 297 N.Y.S. 572, 574, 164
Misc. 192.
"The meaning of the word 'equity,' as used in its techni-
cal sense in English jurisprudence, comes back to this :
that it is simply a term descriptive of a certain field of
jurisdiction exercised, in the English system, by certain
courts, and of which the extent and boundaries are not
marked by lines founded upon principle so much as by the
features of the original constitution of the English scheme
of remedial law, and the accidents' of its development."
Bisp.Eq. § 11.
A system of jurisprudence collateral to, and in some re-
spects independent of, "law," properly so called; the ob-
ject of which is to render the administration of justice
more complete, by affording relief where the courts of law
are incompetent to give it, or to give it with effect, or by
exercising certain branches of jurisdiction independently of
them. This is equity in its proper modern sense; an elab-
orate system of rules and process, administered in many
cases by distinct tribunals, (termed "courts of chancery,")
and with exclusive jurisdiction over certain subjects. It
is "still distinguished by Its original and animating prin-
ciple that no right should be without an adequate remedy,"
and its doctrines are founded upon the same basis of nat-
ural justice; but its action has become systematized, de-
prived of any loose and arbitrary character which might
once have belonged to it, and as carefully regulated by
fixed rules and precedents as the law itself. Burrill.
Equity, in its technical and scientific legal use, means
neither natural justice nor even all that portion of natural
justice which is susceptible of being judicially enforced. It
has a precise, limited, and definite signification, and is used
to denote a system of justice which was administered in
a particular court,-the English high court of chancery,-
which system can only be understood and explained by
studying the history of that court, and how it came to ex-
ercise what is known as its extraordinary jurisdiction.
Bisp.Eq. § 1.
That part of the law which, having power to enforce dis-
covery, (1) administers trusts, mortgages, and other fidu-
ciary obligations; (2) administers and adjusts common-law
rights where the courts of common law have no machinery;
(3) supplies a specific and preventive remedy for common-
law wrongs where courts of common law only give subse-
quent damages. Chute, Eq. 4.
Equity is a body of jurisprudence, or field of
jurisdiction, differing in its origin, theory, and
methods from the common law. Laird v. Union
Traction Co., 208 Pa. 574, 57 A. 987.. 
It is a body of rules existing by the side of the original
civil law, founded on distinct principles, and claiming in-
cidentally to supersede the civil law in virtue of a superior
sanctity inherent in those principles. Maine, Anc. Law, 27.
"As old rules become too narrow, or are felt to be out of
harmony with advancing civilization, a machinery is need-
ed for their gradual enlargement and adaption to new
views of society. One mode of accomplishing this object
on a large scale, without appearing to disregard existing
law, is the introduction, by the prerogative of some high
functionary, of a more perfect body of rules, discoverable
in his judicial conscience, which is to stand side by side
with the law of the land, overriding it in case of conflict,
as on some title of inherent superiority, but not purport-
ing to repeal it. Such a body of rules has been called
'Equity.' " Holl.Jur. 59.
"Equity," in Its technical sense, contradistinguished
from natural, and universal equity or justice, may well be
described as a "portion of justice" or natural equity, not
embodied in legislative enactments, or in the rules of com-
mon law, yet modified by a due regard thereto and to the
complex relations and conveniences of an artificial state of
society, and administered in regard to cases where the
particular rights, in respect of which relief is sought come
within some general class of rights enforced at law, or may
be enforced without detriment or inconvenience to the com-
munity; but where, as to such particular rights, the or-
dinary courts of law cannot, or originally did not, clearly
afford relief. Rob. Eq.
The remaining interest belonging to one who
has pledged or mortgaged his property, or the sur-
plus of value which may remain after the prop-
erty has been disposed of for the satisfaction of
liens. The amount or value of a property above
the total liens or charges. Des Moines Joint
Stock Land Bank of Des Moines v. Allen, 220 Iowa
448, 261 N.W. 912.
"Chancery" is synonymous and interchange-
able with "equity." Const. art. 4, § 6. Ireland
v. Cheney, 129 Ohio St. 527, 196 N.E. 267, 270.
Equitable Right
Equity also signifies an equitable right, i. a
right enforceable in a court of equity; hence, a
bill of complaint which did not show that the
plaintiff had a right entitling him to relief was
said to be demurrable for want of equity; and
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EQUITY OF A STATUTE
certain rights now recognized in all the courts
are still known as "equities," from having been
originally recognized only in the court of chan-
cery. Sweet.
Better Equity
The right which, in a court of equity, a second
incumbrancer has who has taken securities
against subsequent dealings to his prejudice,
which a prior incumbrancer neglected to take al-
though he had an opportunity. 1 Ch.Prec. 470,
note. See 3 Bouv.Inst. note 2462.
Countervailing Equity
A contrary and balancing equity; an equity or
right opposed to that which is sought to be en-
forced or recognized, and which ought not to be
sacrificed or subordinated to the latter, because it
is of equal strength and justice, and equally de-
serving of consideration.
Existing Equity
See Existing Equity.
Latent or Secret Equity
An equitable claim or right, the knowledge of
which has been confined to the parties for and
against whom it exists, or which has been con-
cealed from one or several persons interested in
the subject-matter.
Natural Equity
A term sometimes employed in works on juris-
prudence, possessing no very precise meaning,
but used as equivalent to justice, honesty, or mor-
ality in business relations, or man's innate sense
of right dealing and fair play. Inasmuch as equi-
ty, as now administered, is a complex system of
rules, doctrines, and precedents, and possesses,
within the range of its own fixed principles, but
little more elasticity than the law, the term "na-
tural equity" may be understood to denote, in a
general way, that which strikes the ordinary con-
science and sense of justice as being fair, right,
and equitable, in advance of the question whether
the technical jurisprudence of the chancery courts
would so regard it.
Perfect Equity
An equitable title or right which lacks nothing
to its completeness as a legal title or right except
the formal conveyance or other investiture which
would make it cognizable at law; particularly, the
equity or interest of a purchaser of real estate
who has paid the purchase rice in full and ful-
filled all conditions resting o him, but has not yet
received a deed or patent. See Shaw v. Lindsey,
60 Ala. 344; Smith v. Cockrell, 66 Ala. 75.
EQUITY, COURTS OF. Courts which administer
justice according to the system of equity, and ac-
cording to a peculiar course of procedure or prac-
tice. Frequently termed "courts of chancery."
See 1 Bl.Comm. 92; Dowell v. Goodwin, 22 R.I.
287, 27 A. 693, 695, 51 L.R.A. 873, 84 Am.St.Rep.
842.
EQUITY DELIGHTS TO DO JUSTICE, AND
THAT NOT BY HALVES. Tallman v. Varick, 5
Barb. (N.Y.) 277, 280; Story, Eq.P1. § 72.
EQUITY FOLLOWS THE LAW. Talb. 52. Equity
adopts and follows the rules of law in all cases
to which those rules may, in terms, be applicable.
Equity, in dealing with cases of an equitable na-
ture, adopts and follows the analogies furnished
by the rules of law. A leading maxim of equity
jurisprudence, which, however, is not of universal
application, but liable to many exceptions. Frink
v. Commercial Bank of Emmettsburg, 195 Iowa,
1011, 191 N.W. 513.
EQUITY JURISDICTION. In a general sense,
the jurisdiction belonging to a court of equity,
but more particularly the aggregate of those cas-
es, controversies, and occasions which form prop-
er subjects for the exercise of the powers of a
chancery court. See Wadham Oil Co. v. Tracy,
141 Wis. 150, 123 N.W. 785, 787, 18 Ann.Cas. 779;
Venner v. Great Northern R. Co., C.C.N.Y., 153 F.
408, 413, 414.
"Equity jurisdiction," in its ordinary acceptation, as dis-
tinguished on the one side from the general power to de-
cide matters at all, and on the other from the jurisdiction
"at law" or "common-law jurisdiction," is the power to
hear certain kinds and classes of civil causes according to
the principles of the method and procedure adopted by
the court of chancery, and to decide them in accordance
with the doctrines and rules of equity jurisprudence,
which decision may involve either the determination of the
equitable rights, estates, and interests of the parties to
such causes, or the granting of equitable remedies. In
order that a cause may come within the scope of the equi-
ty jurisdiction, one of two alternatives is essential; either
the primary right, estate, or interest to be maintained, or
the violation of which furnishes the cause of action, must
be equitable rather than legal; or the remedy granted
must be in its nature purely equitable, or if it be a rem-
edy which may also be given by a court of law, it must
be one which, under the facts and circumstances of the
case, can only be made complete and adequate through the
equitable modes of procedure. Norback v. Board of Di-
rectors of Church Extension Soc., 84 Utah 506, 37 P.2d 339.
EQUITY JURISPRUDENCE. That portion of
remedial justice which is exclusively administer-
ed by courts of equity as distinguished from
courts of common law. Jackson v. Nimmo, 3
Lea (Tenn.) 609. More generally speaking, the
science which treats of the rules, principles, and
maxims which govern the decisions of a court of
equity, the cases and controversies which are con-
sidered proper subjects for its cognizance, and the
nature and form of the remedies which it grants.
EQUITY LOOKS UPON THAT AS DONE
WHICH OUGHT TO HAVE BEEN DONE. 1
Story, Eq.Jur. § 64g. Equity will treat the sub-
ject-matter, as to collateral consequences and in-
cidents, in the same manner as if the final acts
contemplated by the parties had been executed
exactly as they ought to have been; not as the
parties might have executed them. Rankin v.
Rankin, 36 Ill. 293, 87 Am.Dec. 205.
EQUITY OF A STATUTE. By this phrase is in-
tended the rule of statutory construction which
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EQUITY OF PARTNERS
admits within the operation of a statute a class
of cases which are neither expressly named nor
excluded, but which, from their analogy to the cas-
es that are named, are clearly and justly within
the spirit and general meaning of the law; such
cases are said to be "within the equity of the
statute."
EQUITY OF PARTNERS. A term used to desig-
nate the right of each of them to have the firm's
property applied to the payment of the firm's
debts. Colwell v. Bank, 16 R.I. 288, 17 A. 913.
EQUITY OF REDEMPTION. The right of the
mortgagor of an estate to redeem the same after
it has been forfeited, at law, by a breach of the
condition of the mortgage, upon paying the
amount of debt, interest and costs. Riddick V.
Davis, 220 N.C. 120, 16 S.E.2d 662, 666; Broun v.
United States, C.C.A.Pa., 95 F.2d 487, 489.
The right of redemption after sale is distinct from the
equity of redemption after breach of condition and before
the sale. The former commences only when the latter
ends. One rests on the principles of equity, the other on
the terms of the statute. Hummel v. Citizens' Building &
Loan Ass'n, Ariz., 296 P. 1014, 1015.
EQUITY SUFFERS NOT A RIGHT WITHOUT A
REMEDY. 4 Bouv.Inst. No. 3726. Graselli Chemi-
cal Company v. /Etna Explosives Co., 252 F. 456,
164 C.C.A. 380.
EQUITY TERM. An equity term of court is one
devoted exclusively to equity business, that is, in
v.thich no criminal cases are tried nor any cases
requiring the impaneling of a jury. Hesselgrave
v. State, 63 Neb. 807, 89 N.W. 295.
EQUITY TO A SETTLEMENT. The equitable
right of a wife, when her husband sues in equity
for the reduction of her equitable estate to his
own possession, to have the whole or a portion of
such estate settled upon herself and her children.
Also a similar right now recognized by the equity
courts as directly to be asserted against the hus-
band. Also called the "wife's equity." Poindex-
ter v. Jeffries, Clarke v. McCleary, 12 Smedes &
M. (Miss.) 354.
EQUIVALENT, adj. Equal in value, force,
measure, volume, power, and effect or having
equal or corresponding import, meaning or signi-
ficance; alike, identical. Salt Lake County v. Utah
Copper Co., C.C.A.Utah, 93 F.2d 127, 132; Nahas
v. Nahas; 59 Nev. 220, 90 P.2d 223, 224; Kelley v.
Clark, 23 Idaho, 1, 129 P. 921, 925, Ann.Cas.1914C,
665.
EQUIVALENT, n. In patent law. Any act or
substance which is known in the arts as a proper
substitute for some other act or substance em-
ployed as an element in the invention, whose sub-
stitution for that other act or substance does not
in any manner vary the idea of means. It pos-
sesses three characteristics: It must be capable
of performing the same office in the invention as
the act or substance whose place it supplies; it
must relate to the form or embodiment alone and
not affect in any degree the idea of means; and
it must have been known to the arts at the date
of the patent as endowed with this capability.
Duff Mfg. Co. v. Forgie, 59 F. 772, 8 C.C.A. 261;
For "Fair Equivalent," see that title.
For one device to be the equivalent of another, it must
perform the same function in substantially the same way.
Chicago Forging & Mfg. Co. v. Bade-Cummins Mfg. Co.,
C.C.A.Ky., 63 F.2d 928, 931; Donner v. Sheer Pharmacal
Corporation, C.C.A.Mo., 64 F.2d 217, 223; Corcoran v.
Riness, D.C.Cal., 19 F.Supp. 344, 347.
"Equivalents" in an art or process are such acts as, In
accordance with preceding rules, are interchangeable with
those which the inventor has himself employed. Superior
Skylight Co. v. August Kuhnla, D.C.N.Y., 265 F. 282, 284.
An "equivalent," in patent law, is not the same as a
"substitute." McCaskey Register Co. v. Mantz, D.C.N.Y.,
217 F. 415, 419.
EQUIVOCAL. Having a double or several mean-
ings or senses. Synonymous with "ambiguous".
Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975,
979. See Ambiguity.
EQUULEUS. A kind of rack for extorting con-
fessions.
EQUUS COOPERTUS. A horse equipped with
saddle and furniture.
ERABILIS. A maple tree. Not to be confounded
with arabilis, (arable land.)
ERASTIANS. The followers of Erastus. The-
sect obtained much influence in England, partic-
ularly among common lawyers in the time of Sel-
den. They held that offenses against religion
and morality should be punished by the civil pow-
er, and not by the censures of the church or by
excommunication. Wharton.
ERASURE. The obliteration of words or marks
from a written instrument by rubbing, scraping,
or scratching them out. Also the place in a docu-
ment where a word or words have been so remov-
ed. The term is sometimes used for the removal
of parts of a writing by any means whatever, as
by cancellation; but this is not an accurate use.
Cloud v. Hewitt, 5 Fed.Cas. 1,085; In re Fergeson,
126 Misc. 286, 213 N.Y.S. 656, 658; Murray v.
Floyd, 216 Minn. 69, 11 N.W.2d 780, 783.
ERCISCUNDUS. In the civil law. To be divid-
ed. Judicium familice erciscundce, a suit for the
partition of an inheritance. Inst. 4, 17, 4. An
ancient phrase derived from the Twelve Tables.
Calvin.
ERECT. One of the formal words of incorpora-
tion in royal charters. "We do, incorporate, erect,
ordain, name, constitute, and establish." "Con-
struct" is synonymous with "erect". State ex rel.
Davis v. Barber, 139 Fla. 706, 190 So. 809.
ERECTION. Raising up; building; a complet-
ed building; to build; construct; set up. In a
statute on the "erection" of wooden buildings, this
term does not include repairing, alteration, en-
larging, or removal. See Shaw v. Hitchcock, 119
Mass. 256; Escambia County v. Blount Const. Co.,
66 Fla. 129, 62 So. 650, 651; Flynn v. New York, W.
& B. Ry. Co., 218 N.Y. 140, 112 N.E. 913, 914, Ann.
Cas.1918B, 588; Watson v. Greely, 69 Cal.App.
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ERROR
643, 232 P. 475, 479. There is a distinction between
"erection" and maintenance. Turturro v. Calder,
307 Mass. 159, 29 N.E.2d 744, 746.
ERECTOR SPINIE MUSCLES. A group of mus-
cles on each side of the spine running all the way
up from the sacrum to the skull. Biener v. St.
Louis Public Service Co., Mo...kpp., 160 S.W.2d 780,
788.
ERGO. Lat. Therefore; hence; because.
ERGOLABI. In the civil law. Undertakers of
work; contractors. Cod. 4, 59.
ERGOT. A medicinal used as a uterine contrac-
tor to contract the muscles so as to expel certain
material from the uterus. People v. Chester, 179
Misc. 864, 42 N.Y.S.2d 293, 295.
ERIACH. A term of the Irish Brehon law, de-
noting a pecuniary mulct or recompense which a
murderer was judicially condemned to pay to the
family or relatives of his victim. It correspond.
ed to the Saxon "weregild." See 4 Bl.Comm. 313.
ERIGIMUS. We erect. One of the words by
which a corporation may be created in England by
the king's charter. 1 Bl.Comm. 473.
ERMINE. By metonymy, this term is used to
describe the office or functions of a judge, whose
state robe, lined with ermine, is emblematical of
purity and honor without stain. Webster.
ERNES. In old English law. The loose scatter-
ed ears of corn that are left on the ground after
the binding.
EROSION. The gradual eating away of the soil
by the operation of currents or tides. Distinguish-
ed from submergence, which is the disappearance
of the soil under the water and the formation of
a navigable body over it. Mulry v. Norton, 100
N.Y. 433, 3 N.E. 584, 53 Am.Rep. 206; State of
Arkansas v. State of Tennessee, 246 U.S. 158, 38 S.
Ct. 301, 304, 62 L.Ed. 638, L.R.A.1918D, 258.
EROTOMANIA. See Insanity.
ERRANT. Wandering; itinerant; applied to jus-
tices on circuit, and bailiffs at large, etc.
ERRANT WATER. Stream water, which does
not have channel of navigable river or which re-
turns to stream after overflowing its banks, is
not "errant water" in which riparian owner can
acquire no vested rights. Tallassee Power Co. v.
Clark, C.C.A.Tenn., 77 F.2d 601, 603.
ERRATICUM. In old law. A waif or stray; a
wandering beast. Cowell.
ERRATUM. Lat. Error. Used in the Latin for-
mula for assigning errors, and in the reply there-
to, "in nullo est erratum," i. e., there was no er-
ror, no error was committed.
ERRONEOUS. Involving error; deviating from
the law. This term is never used by courts or
law-writers as designating a corrupt or evil act.
Thompson v. Doty, 72 Ind. 338; U. S. v. Sakharam
Ganesh Pandit, C.C.A.Cal., 15 F.2d 285, 286.
"False" as a constituent of a fraud action may at
times be said to be synonymous with "erroneous."
Abel v. Paterno, 153 Misc. 248, 274 N.Y.S. 749.
ERRONEOUS ASSESSMENT. Refers to an as-
sessment that deviates from the law and is there-
fore invalid, and is a defect that is jurisdictional
in its nature, and does not refer to the judgment
of the assessing officer in fixing the amount of val-
uation of the property. In re Blatt, 41 N.M. 269,
67 P.2d 293, 301, 110 A.L.R. 656; Ritchie Grocer
Co. v. City of Texarkana, 182 Ark. 137, 30 S.W.
2d 213, 214; Flourney v. First Nat. Bank of
Shreveport, 197 La. 1067, 3 So.2d 244, 252.
ERRONEOUS JUDGMENT. One rendered ac-
cording to course and practice of court, but con-
trary to law, upon mistaken view of law, or upon
erroneous application of legal principles. Her-
bert B. Newton & Co. v. Wilson Furniture Mfg.
Co., 206 N.C. 533, 174 S.E. 449, 450.
ERRONEOUS OR ILLEGAL TAX. One levied
without statutory authority, or upon property not
subject to taxation, or by some officer having no
authority to levy the tax, or one which in some
other similar respect is illegal. Jewett Realty
Co. v. Board of Sup'rs of Polk County, 239 Iowa
988, 33 N.W.2d 377.
ERRONICE. Lat. Erroneously; through error
or mistake.
ERROR. A mistaken judgment or incorrect be-
lief as to the existence or effect of matters of fact,
or a false or mistaken conception or application
of the law.
Such a mistaken or false conception or applica-
tion of the law to the facts of a cause as will fur-
nish ground for a review of the proceedings upon
a writ of error; a mistake of law, or false or ir-
regular application of it, such as vitiates the pro-
ceedings and warrants the reversal of the judg-
ment.
Error is also used as an elliptical expression for
"writ of error;" as in saying that error lies;
that a judgment may be reversed on error.
An act involving a departure from truth or ac-
curacy. Gronseth v. Mohn, 57 S.D. 604, 234 N.W.
603, 604.
Assignment of Errors
In practice. The statement of the plaintiff's
case on a writ of error, setting forth the errors
complained of; corresponding with the declara-
tion in an ordinary action. 2 Tidd, Pr. 1168; 3
Steph.Comm. 644. Armour v. Pennsylvania R.
Co., 353 Ill. 575, 187 N.E. 532, 534; Fahrenbrink v.
Moore, 51 Ariz. 176, 75 P.2d 360, 361. A specifica-
tion of the errors upon which the appellant will
rely, with such fullness as to give aid to the court
in the examination of the transcript. Squires v.
Foorman, 10 Cal. 298; Streeter v. State, 89 Fla.
400, 104 So. 858, 859; Largent v. Etheridge, Tex.
Civ.App., 13 S.W.2d 974, 976; Helms v. Cook, 62
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ERROR
Ind.App. 629, 111 N.E. 632, 633; Wine v. Jones,
183 Iowa, 1166, 168 N.W. 318, 320.
The office of an assignment of error, which is in the na-
ture of a pleading by the plaintiff in error or appellant, is
not only to inform the appellate court of the exact com-
plaint against rulings, whereby, if the complaint be sus-
tained, a judgment or decree may be changed or reversed,
hut is to inform the defendant in error or appellee
of the precise errors relied upon, in order that such de-
fendant in error or appellee may take proper steps, or
give proper directions in his own behalf, for making up a
sufficient transcript of the record to exhibit to the court
what might otherwise be insufficiently shown. Davidson
v. Bezant, 101 Fla. 1296, 132 So. 488, 489.
"Assignment of error" is formal complaint of some ac-
tion of trial court, as distinguished from "proposition,"
which merely sets forth reasons why such action is errone-
ous. Standard v. Texas Pacific Coal & Oil Co., Tex.Civ.
App., 47 S.W.2d 443, 449.
Clerical Error
See Clerical.
Common Error
(Lat. communis error, q. v.) An error for
which there are many precedents. "Common er-
ror goeth for a law." Finch, Law, b. 1, c. 3, no.
54. "Common errors" are that the declaration is
insufficient in law to maintain the action, and that
judgment was given for plaintiff instead of de-
fendant, or vice versa. Margolies v. Goldberg, 101
N.J.L. 75, 127 A. 271, 272.
Cross-Errors
Errors assigned by the respondent in a writ of
error, or appellee.
Error Apparent of Record
Plain, fundamental error that goes to the foun-
dation of the action irrespective of the evidence;
an obvious misapprehension of the applicable law.
Kenedy Mercantile Co. v. Ainsworth, Tex.Civ.App.,
281 S.W. 637; Provident Life & Accident Ins. Co.
v. Johnson, Tex.Civ.App., 235 S.W. 650, 652; Parks
v. Parks, 68 App.D.C. 363, 98 F.2d 235, 236.
Fundamental Error
In appellate practice. Error which goes to the
merits of the plaintiff's cause of action, and which
will be considered on review, whether assigned as
error or not, where the justice of the case seems to
require it. Hollywood v. Wellhausen, 28 Tex.Civ.
App. 541, 68 S.W. 329; Goodhue v. Fuller, Tex.Civ.
App., 193 S.W. 170, 172. Error in law apparent
on the face of the record. St. Louis Southwestern
Ry. Co. of Texas v. Anderson, Tex.Civ.App., 206
S.W. 696, 698.
Harmful Error
Error which more probably than improbably af-
fected the verdict or judgment prejudicially to
the party complaining. Ashby v. Virginia Ry. &
Power Co., 138 Va. 310, 122 S.E. 104, 110.
Harmless Error
In appellate practice. An error committed in
the progress of the trial below, but which was not
prejudicial to the rights of the party assigning it,
and for which, therefore, the court will not reverse
the judgment, as, where the error was neutralized
or corrected by subsequent proceedings in the
case, or where, notwithstanding the error, the par-
ticular issue was found in that party's favor, or
where, even if the error had not been committed,
he could not have been legally entitled to prevail.
Invited Error
In appellate practice. The principle of "invit-
ed error" is that if, during the progress of a cause,
a party requests or moves the court to make a rul-
ing which is actually erroneous, and the court does
so, that party cannot take advantage of the error
on appeal or review. Gresham v. Harcourt, 93
Tex. 149, 53 S.W. 1019.
Judicial Errors
Errors into which the court itself falls. State
v. District Court of Second Judicial District in and
for Silver Bow County, 55 Mont. 324, 176 P. 608,
609.
Reversible Error
In appellate practice. Such an error as war-
rants the appellate court in reversing the judg-
ment before it; substantial error, that which rea-
sonably might have prejudiced the party com-
plaining. Shinn v. United Rys. Co. of St. Louis,
248 Mo. 173, 154 S.W. 103, 105; New Mexican R.
Co. v. Hendricks, 6 N.M. 611, 30 Pac. 901.
Technical Error
In appellate practice. A merely abstract or the-
oretical error, which is practically not injurious to
the party assigning it. Epps v. State, 102 Ind. 539,
1 N.E. 491.
ERROR CASE. An appeal on questions of law.
In re Green's Estate, Ohio App., 41 N.E.2d 586.
ERROR CORAM NOBIS. Error committed in the
proceedings "before us;"  e., error assigned as a
ground for reviewing, modifying, or vacating a
judgment in the same court in which it was ren-
dered. A writ to bring before the court that pro-
nounced judgment errors in matters of fact which
had not been put in issue or passed on and were
material to validity and regularity of legal pro-
ceeding itself. Hiawassee Lumber Co. v. United
States, C.C.A.N.C., 64 F.2d 417, 418.
ERROR CORAM VOBIS. Error in the proceed-
ings "before you;" words used in a writ of error
directed by a court of review to the court which
tried the cause.
ERROR FUCATUS NUDA VERITATE IN MUL-
TIS . EST PROBABILIOR; ET SAZEPENUMERO
RATIONIBUS VINCIT VERITATEM ERROR.
Error artfully disguised [or colored] is, in many
instances, more probable than naked truth; and
frequently error overwhelms truth by [its show
of] reasons. 2 Coke, 73.
ERROR IN EXERCISE OF JURISDICTION. Er-
ror in determination of questions of law or fact
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ESCAPE
on which the court's jurisdiction in particular case
depends. Burgess v. Nail, C.C.A.Okl., 103 F.2d
37, 43.
ERROR IN FACT. In judicial proceedings, error
in fact occurs when, by reason of some fact which
is unknown to the court and not apparent on the
record (e. g., the coverture, infancy, or death of
one of the parties), it renders a judgment which
is void or voidable. Cruger v. McCracken, 87
Tex. 584, 30 S.W. 537; Kihlholz v. Wolff, 8 Ill.
App. 371.
ERROR IN LAW. An error of the court in ap-
plying the law to the case on trial, e. g., in ruling
on the admission of evidence, or in charging the
jury. McKenzie v. Bismarck Water Co., 6 N.D.
361, 71 N.W. 608; Scherrer v. Hale, 9 Mont. 63, 22
Pac. 151.
ERROR IN VACUO. Error in adverse ruling
without adverse effect is "error in vacuo" which
may subject the erring judge to criticism but not
the case to re-trial. United States v. A Certain
Tract or Parcel of Land in Chatham County, Ga.,
D.C.Ga., 47 F.Supp. 30, 36.
ERROR JURIS NOCET. Error of law injures. A
mistake of the law has an injurious effect; that
is, the party committing it must suffer the con-
sequences. Mackeld.Rom.Law, § 178; 1 Story, Eq.
Jur. § 139, note.
ERROR NOMINIS. Error of name. A mistake
of detail in the name of a person; used in contra.
distinction to error de persona, a mistake as *to
identity.
ERROR NOMINIS NUNQUAM NOCET, SI DE
IDENTITATE REI CONSTAT. A mistake in the
name of a thing is never prejudicial, if it be clear
as to the identity of the thing itself, [where the
thing intended is certainly known.] 1 Duer, Ins.
171. This maxim is applicable only where the
means of correcting th€ mistake are apparent on
the face of the instrument to be construed. Id.
ERROR OF FACT. That is called "error of fact"
which proceeds either from ignorance of that
which really exists or from a mistaken belief in
the existence of that which has none. See Norton
v. Marden, 15 Me. 45, 32 Am.Dec. 132. Finding of
fact contrary to the weight of the evidence is an
error of fact. Wear v. Imperial Window Glass
Co., C.C.A.Mo., 224 F. 60, 62. Cf. Error in Fact,
supra.
ERROR `OF LAW. He is under an error of law
who is truly informed of the existence of facts,
but who draws from them erroneous conclusions
of law. Civ.Code La. art. 1822. Mowatt v.
Wright, 1 Wend., N.Y., 360, 19 Am.Dec. 508.
ERROR QUI NON RESISTITUR APPROBATUR.
An error which is not resisted or opposed is ap-
proved. Doct. & Stud. c. 40.
ERROR, WRIT OF. See Writ of Error.
ERRORES AD SUA PRINCIPIA REFERRE, EST
REFELLERE. To refer errors to their sources is
to refute them. 3 Inst. 15. To bring errors to
their beginning is to see their last.
ERRORES SCRIBENTIS NOCERE NON DEB-
ENT. The mistakes of the writer ought not to
harm. Jenk.Cent. 324.
ERRORS EXCEPTED. A phrase appended to an
account stated, in order to excuse slight mistakes
or oversights.
ERTHMIOTUM. In old English law. A meeting
of the neighborhood to compromise differences
among themselves; a court held on the boundary
of two lands.
ERUBESCIT LEX FILIOS CASTIGARE PAR-
ENTES. 8 Cpke, 116. The law blushes when
children correct their parents.
ESBRANCATURA. In old law. A cutting off the
branches or boughs of trees. Cowell; Spelman.
ESCALATOR CLAUSE. A clause usually found
in leases or contracts executed subject to price
control regulations. Under this clause, in the case
of a lease, the landlord is authorized to collect the
maximum rent permissible under rent regulations
in force at time of execution of the lease. The es-
calator part of the clause of the lease consists in
the provision that in the event that the rent regu-
lations are modified during the term of the lease,
the tenant will pay the increased rental following
the allowance thereof. Wasservogel v. Meyero-
witz, 191 Misc. 594, 79 N.Y.S.2d 256; and 89 N.Y.S.
2d 290, 275 App.Div. 387. In the case of a sales
contract, the escalator clause usually provides in
effect that should the maximum prices promul-
gated be increased or decreased during the life of
the contract, payment will be made by the pur-
chaser at a rate of increase or decrease not to ex-
ceed the same ratio that the prices quoted bear
to the maximum prices authorized. Simpson
Bros. v. District of Columbia, D.C.D.C., 73 F.Supp.
858, and 179 F.2d 430. Pfotzer et al. v. United
States, 176 F.2d 675; Record & Tribune Co. v.
Brandtjen & Kluge, Inc., Iowa, 39 N.W.2d 288.
Escalator clauses authorizing the contractor to
increase the contract price should the prices of
labor or material advance also appear in other
contract§, such as a contract to furnish steam.
Lincoln Rug Co. v. East Newark Realty Corp.,
142 N.J.Eq. 743, 61 A.2d 448.
ESCALDARE. To scald. It is said that to scald
hogs was one of the ancient tenures in serjeanty.
Wharton.
ESCAMBIO. In old English law. A writ of ex-
change. A license in the shape of a writ, former.
ly granted to an English merchant to draw a bill
of exchange on another in foreign parts. Reg.
Orig. 194.
ESCAMBIUM. An old English law term, signify-
ing exchange.
ESCAPE. The departure or deliverance out of
custody of a person who was lawfully imprison
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ESCAPE
ed, before he is entitled to his liberty by the proc-
ess of law.
The voluntarily or negligently allowing any per-
son lawfully in confinement to leave the place.
2 Bish.Crim.Law, § 917.
Escapes are either voluntary or negligent. The
former is the case when the keeper voluntarily
concedes to the prisoner any liberty not author-
ized by law. The latter is the case when the pris-
oner contrives to leave his prison by forcing his
way out, or any other means, without the knowl-
edge or against the will of the keeper, but through
the latter's carelessness or the insecurity of the
building. Cortis v. Dailey, 21 App.Div. 1, 47 N.Y.
S. 454; U. S. v. Hoffman, D.C.I11., 13 F.2d 269, 270;
Whitaker v. Commonwealth, 188 Ky. 95, 221 S.W.
215, 216, 10 A.L.R. 145; State v. Pace, 192 N.C.
780, 136 S.E. 11, 12.
To flee from; to a void; to get out of the way,
as to flee to avoid arrest. Life & Casualty Ins.
Co. sr. Hargraves, 169 Tenn. 388, 88 S.W.2d 451,
452; State v. Dreiling, 136 Kan, 78, 12 P.2d 735, 736.
—Constructive escape. This takes place when a
prisoner obtains more liberty than the law allows,
although he still remains in custody. 21 C.J. p.
827. An example is the unauthorized production
of a prisoner in court by his custodian. In re
Rigg, 123 A. 243, 95 N.J.Eq. 341.
ESCAPE FROM PRISON. A prisoner serving a
sentence of imprisonment in a state prison is, in
contemplation of law, a prisoner therein, as well
when at work outside under the surveillance of
prison guards as when confined within its walls,
so that if he escapes when outside he escapes from
a prison within Pen.Code, §§ 106, 787. People v.
Vanderburg, 67 Cal.App. 217, 227 P. 621.
ESCAPE WARRANT. In English practice. This
was a warrant granted to retake a prisoner com-
mitted to the custody of the king's prison who
had escaped therefrom. It was obtained on affi-
davit from the judge of the court in which the
action had been brought, and was directed to all
the sheriffs throughout England, commanding
them to retake the prisoner and commit him to
gaol when and where taken, there to remain until
the debt was satisfied. Jacob; Brown.
ESCAPE WAY. Passageway leading from the in-
side to the outside of the mine. Roberts v. Ten-
nessee Coal, Iron & R. Co., C.C.A.Ala., 255 F. 469,
471; Robinson v. Maryland Coal & Coke Co., 196
Ala. 604, 72 So. 161, 162.
ESCAPIO QUIETUS. In old English law. Deliv-
ered from that punishment which by the laws of
the forest lay upon those whose beasts were found
upon forbidden land. Jacob.
ESCAPIUM. That which comes by chance or ac-
cident. Cowell.
ESCEPPA. A measure of corn. Cowell.
ESCHIETA DERIVATUR A VERBO GALLIC()
ESCHOIR, QUOD EST ACCIDERE, QUIA AC-
CIDIT DOMINO EX EVENTU ET EX INSPERA-
TO. Co.Litt. 93. Escheat is derived from the
French word "eschoir," which signifies to happen,
because it falls to the lord from an event and from
an unforeseen circumstance.
ESCHIETIE VULGO DICUNTUR QUIE DECID-
ENTIBUS IIS QUIE DE REGE TENENT, CUM
NON EXISTIT RATIONE SANGUINIS HIERES,
AD FISCUM RELABUNTUR. Those things are
commonly called "escheats" which revert to the
exchequer from a failure of issue in those who
hold of the king, when there does not exist any
heir by consanguinity.
ESCHEAT. In feudal law. Escheat Is an ob-
struction of the course of descent, and consequent
determination of the tenure, by some unforeseen
contingency, in which case the land naturally re-
sults back, by a kind of reversion, to the original
grantor, or lord of the fee. 2 B1.Comm. 15; Wal-
lace v. Harmstad, 44 Pa. 501; Marshall v. Love-
lass, 1 N.C. 445; Kavanaugh v. Cohoes Power &
Light Corporation, 114 Misc. 590, 187 N.Y.S. 216,
231; State v. Phoenix Sa y . Bank & Trust Co., 60
Ariz. 138, 132 P.2d 637, 638.
It is the casual descent, in the nature of forfei-
ture, of lands and tenements within his manor, to
a lord, either on failure of issue of the tenant dy-
ing seised or on account of the felony of such ten-
ant. Jacob.
Also the land or fee itself, which thus fell back
to the lord. Such lands were called "excadentice,"
or "terrce excadentiales." Fleta, lib. 6, c. 1; Co.
Litt. 13a.
In American law. Escheat signifies a reversion
of property to the state in consequence of a want
of any individual competent to inherit. The state
is deemed to occupy the place and hold the rights
of the feudal lord. See 4 Kent, Comm. 423, 424.
Center v. Kramer, 112 Ohio St. 269, 147 N.E. 602,
604; In re O'Connor's Estate, 126 Neb. 182, 252
N.W. 826; Braun v. McPherson, 277 Mich. 396, 269
N.W. 211, 212.
"Escheat at feudal law was the right of the lord of a fee
to re-enter upon the same when it became vacant by the
extinction of the blood of the tenant. This extinction
might either be per clef ectum sanguinis or else per delicturn
tenentis, where the course of descent was broken by the
corruption of the blood of the tenant. As a fee might be
holden either of the crown or from some inferior lord, the
escheat was not always to the crown. The word 'escheat,'
in this country, at the present time, merely indicates the
preferable right of the state to an estate left vacant, and
without there being any one in existence able to make
claim thereto." 29 Am. Dec. 232, note.
Single Escheat
When all a person's movables fall to the crown,
as a casualty, because of his being declared rebel.
Wharton.
ESCHEAT, WRIT OF. A writ which anciently
lay for a lord, to recover possession of lands that
had escheated to him. Reg.Orig. 164b; Fitzh.
Nat.Brev. 143.
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ESQUIRE
ESCHEATOR. In English law. The name of an
officer who was appointed in every county to look
after the escheats which fell due to the king in
that particular county, and to certify the same
into the exchequer. An escheator could continue
in office for one year only, and was not re-eligible
until three years. There does not appear to exist
any such officer at the present day. Brown. See
10 Vin.Abr. 158; Co.Litt. 13b.
ESCHECCUM. In old English law. A jury or
inquisition.
ESCHIPARE. To build or equip. Du Cange.
ESCOBEDO RULE. Where police investigation
begins to focus on a particular suspect, the sus-
pect is in custody, the suspect requests and is de-
nied counsel, and the police have not warned him
of his right to remain silent, the accused has been
denied assistance of counsel and no statement
elicited during such interrogation may be used in
a criminal trial. Escobedo v. State of Illinois, 378
U.S. 478, 490, 491, 84 S.Ct. 1758, 12 L.Ed.2d 977.
ESCOT. A tax formerly paid in boroughs and
corporations towards the support of the commu-
nity, which is called "scot and lot."
ESCRIBANO. In Spanish law. An officer, re-
sembling a notary in French law, who has author-
ity to set down in writing, and verify by his at-'
testation, transactions and contracts between pri-
vate persons, and also judicial acts and proceed-
ings.
ESCRITURA. In Spanish law. A written instru-
ment. Every deed that is made by the hand of a
public escribano, or notary of a corporation or
council (concejo,) or sealed with the seal of the
king or other authorized persons. White, New
Recop. b. 3, tit. 7, c. 5.
ESCROQUERIE. Fr. Fraud, swindling, cheat-
ing.
ESCROW. A scroll, writing, or deed, delivered by
the grantor, promisor or obligor into the hands of
a third person, to be held by the latter until the
happening of a contingency or performance of a
condition, and then by him delivered to the gran-
tee, promisee or obligee. Minnesota & Oregon
Land & Timber Co. v. Hewitt Inv. Co., D.C.Or., 201
F. 752, 759.
The state or condition of a deed which is condi-
tionally held by a third person, or the possession
and retention of a deed by a third person pending
a condition; as when an instrument is said to be
delivered "in escrow." This use of the term, how-
ever, is a perversion of its meaning.
ESCROWL. In old English law. An escrow; a
scroll. "And deliver the deed to a stranger, as
an escrowl." Perk. c. 1, § 9; Id. c. 2, §§ 137, 138.
ESCUAGE. Service of the shield. One of the
varieties of tenure ,in knight's service, the duty
imposed being that of accompanying the king to
the wars for forty days, at the tenant's own
blades Law Dictionary Revised 4th Ed.-41
charge, or sending a substitute. In later times,
this service was commuted for a certain payment
in money, which was then called "escuage cer-
tain." See 2 Bl.Comm. 74, 75.
ESCURARE. To scour or cleanse. Cowell.
ESGLISE, or EGLISE. A church. Jacob.
ESKETORES. Robbers, or destroyers of other
men's lands and fortunes. Cowell.
ESKIPPAMENTUM. Tackle or furniture; outfit.
Certain towns in England were bound to furnish
certain ships at their own expense and with double
skippage or tackle. Cowell.
ESKIPPER, ESKIPPARE. To ship.
ESKIPPESON. Shippage, or passage by sea.
Spelled, also, "skippeson." Cowell.
ESLISORS. See Elisors.
ESNE. In old law. A hireling of servile condi-
tion.
ESNECY. Seniority; the condition or right of the
eldest; the privilege of the eldest-born. Particu-
larly used of the privilege of the eldest among
coparceners to make a first choice of purparts
upon a voluntary partition.
ESPEDrENT. In Spanish law. A junction of all
the separate papers made in the course of any one
proceeding and which remains in the office at the
close of it. Castillero v. U. S., 2 Black 109, 17 L.
Ed. 360.
ESPERA. A period of time fixed by law or by a
court within which certain acts are to be per-
formed, e. g., the production of papers, payment of
debts, etc.
ESPERONS. L. Fr. Spurs.
ESPLEES. An old term for the products which
the ground or land yields; as the hay of the mead-
ows, the herbage of the pasture, corn of arable
fields, rent and services, etc. The word has been
anciently applied to the land itself. Jacob; Fos-
gate v. Hydraulic Co., 9 Barb., N.Y., 293.
ESPOUSALS. A mutual promise between a man
and a woman to marry each other at some other
time. It differs from a marriage, because then
the contract is completed. Wood, Inst. 57.
ESPURIO. Span. In Spanish law. A spurious
child; one begotten on a woman who has promis-
cuous intercourse with many men. White, New
Recop. b. 1, tit. 5, c. 2, § 1.
ESQUIRE. In English law. A title of dignity
next above gentleman, and below knight. Also a
title of of fice given to sheriffs, serjeants, and bar-
risters at law, justices of the peace, and others. 1
Bl.Comm. 406; 3 Steph.Comm. 15, note; Tomlins.
On the use of this term in American law, particu-
larly as applied to justices of the peace and other
inferior judicial officers, see Christian v. Ashley
County, 24 Ark. 151; Corn. v. Vance, 15 Serg. &
R., Pa., 37.
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ESSARTER
ESSARTER. L. Fr. To cut down woods; to clear
land of trees and underwood; properly to thin
woods, by cutting trees, etc., at intervals. Spel-
man. See Assart.
ESSARTUM. Woodlands turned into tillage by
uprooting the trees and removing the underwood.
ESSENCE. That which is indispensable. Pitts-
burgh Iron & Steel Foundries Co. v. Seaman-
Sleeth Co., D.C.Pa., 236 F. 756, 757. The gist or
substance of any act; the vital constituent of a
thing; that without which a thing cannot be it-
self. Norman v. Department of Labor and Indus-
tries, 10 Wash.2d 180, 116 P.2d 360, 362.
ESSENCE OF THE CONTRACT. Any condition
or stipulation in a contract which is mutually un-
derstood and agreed by the parties to be of such
vital importance that a sufficient performance of
the contract cannot be had without exact com-
pliance with it is said to be "of the essence of
the contract." Flatow, Riley & Co. v. Roy Camp-
bell Co., Tex.Com.App., 280 S.W. 517, 520; Day-
vault & Newsome v. Townsend, Tex.Civ.App., 244
S.W. 1108, 1110.
ESSENDI QUIETUM DE TOLONIO. A writ to be
quit of toll; it lies for citizens and burgesses of
any city or town who, by charter or prescription,
ought to be exempted from toll, where the same is
exacted of them. Reg.Orig. 258.
ESSENTIAL. Indispensably necessary; impor-
tant in the highest degree; requisite. Solter v.
Macmillan, 147 Md. 580, 128 A. 356, 358; City of
Kalamazoo v. Balkema, 252 Mich. 308, 233 N.W.
325, 326.
ESSENTIAL GOVERNMENTAL DUTIES. Those
duties which framers of Constitution intended each
member of union would assume in functioning
under form of government guaranteed by Consti-
tution. Commissioner of Internal Revenue v. Stil-
well, C.C.A.7, 101 F.2d 588, 591.
ESSENTIAL OIL. A group of volatile oils having
marked characteristic odors, occurring in fruits,
flowers, leaves, stems, etc. In re Johnston, Cust.
& Pat.App., 132 F.2d 136, 139.
ESSENTIALLY. "Substantially" is not necessari-
ly synonymous. Robins v. Wettlaufer, Cust. &
Pat.App., 81 F.2d 882, 893.
ESSOIN, v. In old English practice. To present
or offer an excuse for not appearing in court on
an appointed day in obedience to a summons; to
cast an essoin. Spelman. This was anciently
done by a person whom the party sent for that
purpose, called an "essoiner."
ESSOIN, n. In old English law. An excuse for
not appearing in court at the return of the proc-
ess. Presentation of such excuse. Spelman; 1
Sel.Pr. 4; Com.Dig. "Exoine," B 1. Essoin is not
now allowed at all in personal actions. 2 Term,
16; 16 East, 7a; 3 Bl.Comm. 278, note.
ESSOIN DAY. Formerly the first general return-
day of t 1ae term, on which the courts sat to receive
essoins, e., excuses for parties who did not ap-
pear in court, according to the summons of writs.
3 Bl.Comm. 278; Boote, Suit at Law, 130; Gilb.
Com.Pl. 13; 1 Tidd, Pr. 107. But, by St. 11 Geo.
IV. and 1 Wm. IV. c. 70, § 6, these days were done
away with, as a part of the term.
ESSOIN DE MALO VILL1E. When the defendant
is in court the first day; but gone without plead-
ing, and being afterwards surprised by sickness,
etc., cannot attend, but sends two essoiners, who
openly protest in court that he is detained by
sickness in such a village, that he cannot come pro
lucrari and pro perdere; and this will be admit-
ted, for it lieth on the plaintiff to prove whether
the essoin is true or not. Jacob.
ESSOIN ROLL. A roll upon which essoins were
formerly entered, together with the day to which
they were adjourned. Boote, Suit at Law, 130;
Rosc.Real Act. 162, 163; Gilb.Com.P1. 13.
ESSOINIATOR. A person who made an essoin.
EST ALIQUID QUOD NON OPORTET ETIAM SI
LICET; QUICQUID VERO NON LICET CERTE
NON OPORTET. Hob. 159. There is that which
is not proper, even though permitted; but what-
ever is not permitted is certainly not proper.
EST ASCAVOIR. It is to be understood or known;
"it is to-wit." Litt. §§ 9, 45, 46, 57, 59. A very
common expression in Littleton, especially at the
commencement of a section; and, according to
Lord Coke, "it ever teacheth us some rule of law,
or general or sure leading point." Co.Litt. 16.
EST AUTEM JUS PUBLICUM ET PRIVATUM,
QUOD EX NATURALIBUS PRJECEPTIS AUT
GENTIUM, AUT CIVILIBUS EST COLLECTUM;
ET QUOD IN JURE SCRIPT() JUS APPELLA-
TUR, ID IN LEGE ANGLLZE RECTUM ESSE
DICITUR. Public and private law is that which
is collected from natural precepts, on the one hand
of nations, on the other of citizens; and that which
in the civil law is called "jus," that, in the law of
England, is said to be right. Co.Litt. 558.
EST AUTEM VIS LEGEM SIMULANS. Violence
may also put on the mask of law.
EST IPSORUM LEGISLATORUM TANQUAM
VIVA VOX. The voice of the legislators them-
selves is like the living voice; that is, the language
of a statute is to be understood and interpreted
like ordinary spoken language. 10 Coke, 101b.
EST QUIDDAM PERFECTIUS IN REBUS LICI-
TIS. There is something more perfect in things
allowed.
ESTABLISH. This word occurs frequently in the
constitution of the United States, and it is there
used in different meanings: (1) To settle firmly,
to fix unalterably; as to establish justice, which is
the avowed object of the constitution. (2) To
make or form; as to establish a uniform rule of
naturalization, and uniform laws on the subject of
bankruptcies, which evidently does not mean that
these laws shall be unalterably established as jus-
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ESTATE
tice. (3) To found, to create, to regulate; as:
"Congress shall have power to establish post-roads
and post-offices." (4) To found, recognize, con-
firm, or admit; as: "Congress shall make no law
respecting an establishment of religion."  (5)
To create, to ratify, or confirm; as: "We, the peo-
ple," etc., "do ordain and establish this constitu-
tion." 1 Story, Const. § 454. And see Ware v. U.
S., 4 Wall. 632, 18 L.Ed. 389; U. S. v. Smith, 4 N.J.
L. 33.
To settle or fix firmly; place on a permanent
footing; found; create; put beyond doubt or dis-
pute; prove; convince. Smith v. Forrest, 49 N.H.
230; Rowley v. Braly, Tex.Civ.App., 286 S.W. 241,
245; Village of Villa Park v. Wanderer's Rest
Cemetery Co., 316 Ill. 226, 147 N.E. 104, 106;
Thompson v. U. S., C.C.A.N.J, 283 F. 895, 899;
Wells Lamont Corp. v. Bowles, Emp.App, 149 F.2d
364, 366.
To bring into being; to build; to constitute;
to create; to erect; to form, to found; to found
and regulate, to institute, to locate; to make; to
model; to organize; to originate; to prepare; to
set up. Georgia Public Service Commission v.
Georgia Power Co., 182 Ga. 706, 186 S.E. 839, 844;
Muscatine Lighting Co. v. City of Muscatine, 205
Iowa 82, 217 N.W. 468, 470; Ronnow v. City of
Las Vegas, 57 Nev. 332, 65 P.2d 133, 140.
ESTABLISHMENT, ETABLISSEMENT. An ordi-
nance or statute. Especially used of those ordi-
nances or statutes passed in the reign of Edw. I.
2 Inst. 156; Britt. c. 21.
Etablissement is also used to denote the settlement of
dower by the husband tipon his wife. Britt. c. 102.
Institution, place where conducted and equip-
ment; industrial plant and appurtenances; place
of business and fixtures; residence with grounds,
furniture, equipage, etc. State v. Scullin-Gallagher
Iron & Steel Co., 268 Mo. 178, 186 S.W. 1007, 1008,
Ann.Cas.1918E, 620; Benjamin Rose Institute v.
Myers, 92 Ohio St. 252, 110 N.E. 924, 927, L.R.A.
1916D, 1170; Walling v. American Stores Co.,
C.C.A.Pa., 133 F.2d 840, 844; Continental Baking
Co. v. Campbell, 176 Okl. 218, 55 P.2d 114, 116. In a
narrow sense, "to bring into being, create, build,
set up, etc." Gunnar v. Town of Montezuma, 229
Iowa 734, 294 N.W. 895, 897.
ESTABLISHMENT OF DOWER. The assurance
of dower made by the husband, or his friends, be-
fore or at the time of the marriage. Britt. cc. 102,
103.
ESTACHE. A bridge or stank of stone or timber.
Cowell.
ESTADAL. In Spanish law. In Spanish America,
a measure of land of sixteen square varas, or
yards. 2 White, Recop. 139.
ESTADIA (or Sobrestadia). In Spanish law. De-
lay in a voyage, or in the delivery of cargo, caused
by the charterer or consignee, for which demur-
rage is payable. The time for which the party who
has chartered a vessel, or is bound to receive the
cargo, has to pay demurrage on account of his de-
lay in the execution of the contract.
ESTANDARD. L. Fr. A standard (of weights
and measures.) So called because it stands con-
stant and immovable, and hath all other measures
coming towards it for their conformity. Termes
de la Ley.
ESTANQUES. Wears (weirs) or kiddies in rivers.
ESTATE. The interest which any one has in
lands, or in any other subject of property. 1
Prest.Est. 20. And see Mulford v. Le Franc, 26
Cal. 103; Robertson v. VanCleave, 129 Ind. 217, 29
N.E. 781, 15 L.R.A. 68; Ball v. Chadwick, 46 Ill.
31. An estate in lands, tenements, and heredita-
ments signifies such interest as the tenant has
therein. 2 Bl.Comm. 103. The condition or cir-
cumstance in which the owner stands with regard
to his property. 2 Crabb, Real Prop. p. 2, § 942;
Boyd v. Sibold, 7 Wash.2d 279, 109 P.2d 535,
539. In this sense, "estate" is constantly used in
conveyances in connection with the words "right,"
"title," and "interest," and is, in a great degree,
synonymous with all of them. See Co.Litt. 345.
The degree, quantity, nature, and extent of interest
which a person has in real property is usually referred to
as an estate, and it varies from absolute ownership down
to naked possession. Nicholson Corporation v. Ferguson,
114 Okl. 10, 243 P. 195, 200; Washington Ins. Co. v. Pass,
for Use of Nalley, 64 Ga.App. 221, 12 S.E.2d 460, 461;
Gibbs v. Lester, Tex.Com.App., 41 S.W.2d 28, 29, 80 A.L.R.431.
In another sense, "estate" designates the prop-
erty (real or personal) in which one has a right
or interest; the subject-matter of ownership; the
corpus of property. Thus, we speak of a "valu-
able estate," "all my estate," "separate estate,"
"trust estate," etc. This, also, is its meaning in
the classification of property into "real estate" and
"personal estate." Conriertin v. Concannon, 122
Or. 387, 259 P. 290, 292; Bates v. Sparrell, 10 Mass.
323; Archer v. Deneale, 1 Pet. 585, 7 L.Ed. 272;
Den v. Snitcher, 14 N.J.L. 53.
There is no such legal entity as an "estate." Hansen v.
Stanton, 177 Wash. 257, 31 P.2d 903, 904, 92 A.L.R. 1037.
It is a convenient phrase, to identify the subject of litiga-
tion in the orphans' court, and in proceedings in rem it
may be treated as harmless superfluity, but as a designa-
tion of a party to be served with a writ it is unknown to
the law. It cannot be made the plaintiff in an action, as it
is not a person and cannot sue or be sued. In re Harris-
burg Trust Co., 80 Pa.Super.Ct. 585.
The word "estate" is a word of the greatest extension,
and comprehends every species of property, real and per-
sonal. It describes both the corpus and the extent of in-terest. Deering v. Tucker, 55 Me. 284; Frazer v. First
Nat. Bank of Mobile, 235 Ala. 252, 178 So. 441, 444. When
used in some connections, it signifies everything of which
riches or fortune may consist. Williams v. Chicago, B. &
Q. R. Co., 155 S.W. 64, 66, 169 Mo.App. 468.
"Estate" comprehends everything a man owns, real and
personal, and ought riot to be limited in its construction,
unless connected with some other word which must neces-
sarily have that effect. Weber v. Bardon, 92 N.J.Eq. 190,
111 A. 649, 650; Black v. Sylvania Producing Co., 105 Ohio
St. 346, 137 N.E. 904, 905.
It means, ordinarily, the whole of the property owned by
anyone, the realty as well as the personalty. Hunter v.
Husted, 45 N.C. 141; Wingard v. Harrison, 337 Ill. 387, 169
N.E. 232, 233; Miller v. Miller, 200 Iowa, 1070, 205 N.W.
870, 874, 43 A.L.R. 567; In re Quackenbush's Will, 127
Misc. 731, 217 N.Y.S. 493, 496; Jennings v. Jennings, 299
Ky. 779, 187 S.W.2d 459, 463.
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ESTATE
A man's "estate" is that which he can sell or dispose of
at his pleasure or what he can pass on to another. Howard
v. Mitchell, 268 Ky. 429, 105 S.W.2d 128, 133.
Estates may be either absolute or conditional.
An absolute estate is a full and complete estate,
Cooper v. Cooper, 56 N.J.Eq. 48, 38 A. 198, or an es-
tate in lands not subject to be defeated upon any
condition. In this phrase the word "absolute" is
not used legally to distinguish a fee from a life-
estate, but a qualified or conditional fee from a fee
simple. Greenawalt v. Greenawalt, 71 Pa. 483. A
conditional estate is one, the existence of which
depends upon the happening or not happening of
some uncertain event, whereby the estate may be
either originally created, or enlarged, or finally
defeated.  2 Bl.Comm. 151. Estates are also
classed as executed or executory. The former is
an estate whereby a present interest passes to and
resides in the tenant, not dependent upon any
subsequent circumstance or contingency. • They
are more commonly called "estates in possession."
2 Bl.Comm. 162. An estate where there is vested
in the grantee a present and immediate right of
present or future enjoyment. An executory estate
is an estate or interest in lands, the vesting or en-
joyment of which depends upon some future con-
tingency. Such estate may be an executory de-
vise, or an executory remainder, which is the same
as a contingent remainder, because no present in-
terest passes. Further, estates may be legal or
equitable. The former is that kind of estate which
is properly cognizable in the courts of common
law, though noticed, also, in the courts of equity.
1 Steph.Comm. 217. And see Sayre v. Mohney, 30
Or. 238, 47 P. 197; In re Qualifications of Electors,
19 R.I. 387, 35 A. 213. An equitable estate is an
estate an interest in which can only be enforced
in a court of chancery. Avery v. Dufrees, 9 Ohio
145. That is properly an equitable estate or in-
terest for which a court of equity affords the only
remedy; and of this nature, especially, is the
benefit of every trust, express or implied, which
is not converted into a legal estate by the statute
of uses. The rest are equities of redemption, con-
structive trusts, and all equitable charges. Burt.
Comp. c. 8. Brown v. Freed, 43 Ind. 253; In re
Qualifications of Electors, 19 R.I. 387, 35 A. 213.
"Equitable estates" are in equity what legal es-
tates are in law; the ownership of the equitable
estate is regarded by equity as the real ownership,
and the legal estate is, as has been said, no more
than the shadow always following the "equitable
estate," which is the substance. Town of Cascade
v. Cascade County, 75 Mont. 304, 243 P. 806, 808.
A contingent estate is one which depends for
its effect upon an event which may or may not
happen, as, where an estate is limited to a person
not yet born. Conventional estates are those free-
holds not of inheritance or estates for life, which
are created by the express acts of the parties, in
contradistinction to those which are legal and
arise from the operation of law. A dominant es-
tate, in the law of easements, is the estate for
the benefit of which the easement exists, or the
tenement whose owner, as such, enjoys an ease-
ment over an adjoining estate. An expectant es-
tate is one which is not yet in possession, but the
enjoyment of which is to begin at a future time;
a present or vested contingent right of future en-
joyment. Examples are remainders and rever-
sions. A future estate is an estate which is not
now vested in the grantee, but is to commence in
possession at some future time. It includes re-
mainders, reversions, and estates limited to com-
mence in futuro without a particular estate to sup-
port them, which last are not good at common law,
except in the case of chattel interests. See 2 Bl.
Comm. 165. An estate limited to commence in pos-
session at a future day, either without the inter-
vention of a precedent estate, or on the determina-
tion by lapse of time, or otherwise, of a precedent
estate created at the same time. Griffin v. Shep-
ard, 124 N.Y. 70, 26 N.E. 339; Sabledowsky v. Ar-
buckle, 50 Minn. 475, 52 N.W. 920; A particular
estate is a limited estate which is taken out of the
fee, and which precedes a • remainder; as an es-
tate for years to A., remainder to B. for life; or
an estate for life to A., remainder to B. in tail.
This precedent estate is called the "particular es-
tate," and the tenant of such estate is called the
"particular tenant." 2 Bl.Comm. 165; Bunting v.
Speek, 41 Kan. 424, 21 P. 288, 3 L.R.A. 690. A
servient estate, in the law of easements, is the
estate upon which the easement is imposed or
against which it is enjoyed; an estate subjected
to a burden or servitude for the benefit of another
estate. Walker v. Clifford, 128 Ala. 67, 29 So.
588, 86 Am.St.Rep. 74; Dillman v. Hoffman, 38
Wis. 572. A settled estate, in English law, is one
created or limited under a settlement; that is, one
in which the powers of alienation, devising, and
transmission according to the ordinary rules of
descent are restrained by the limitations of the
settlement. Micklethwait v. Micklethwait, 4 C.B.,
N.S., 858. A vested estate is one in which there
is an immediate right of present enjoyment or a
present fixed right of future enjoyment; an es-
tate as to which there is a person in being who
would have an immediate right to the possession
upon the ceasing of some intermediate or prece-
dent estate. Flanner v. Fellows, 206 Ill. 136, 68
N.E. 1057.
Original and derivative estates. An original is
the first of several estates, bearing to each other
the relation of a particular estate and a reversion.
An original estate is contrasted with a derivative
estate; and a derivative estate is a particular in-
terest carved out of another estate of larger ex-
tent. Prest.Est. 125.
For the names and definitions of the various
kinds of estates in land, see the different titles
below.
"Estate" and "heirs" are not equivalent terms,
Martin v. Hale, 167 Tenn. 438, 71 S.W.2d 211, 214;
Abraham v. Abraham, 245 App.Div. 302, 280 N.Y.S.
825.
"Estate" and "property" may be used synony-
mously, McVicar v. McVicar, 128 Kan. 394, 278
P. 36, 38; Ponsonby v. Sacramento Suburban
Fruit Lands Co., 210 Cal. 229, 291 P. 167, 168.
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ESTATE BY THE ENTIRETY
Fast Estate
Real property. A term sometimes used in wills.
Lewis v. Smith, 9 N.Y. 502, 61 Am.Dec. 706.
Landed Estate or Property
See Landed Estate or Property.
Qualified Estate
Interests in real property which are not absolute
and unconditional including fee tail, estates on
condition, estates on limitation, and estates on con-
ditional limitation. Carpender v. City of New
Brunswick, 135 N.J.Eq. 397, 39 A.2d 40, 43.
Real Estate
Landed property, including all estates and inter-
ests in lands which are held for life or for some
greater estate, and whether such lands be of free-
hold or copyhold tenure. Wharton.
As to "Homestead," "Movable," "Residuary,"
"Separate," and "Trust" estate, see those titles.
Financial or Personal Status
In a wider sense, a man's whole financial status
or condition,—the aggregate of his interests and
concerns, so far as regards his situation with ref-
erence to wealth or its objects, including debts
and obligations, as well as possessions and rights.
Thus, we speak of "debts due the estate," or say
that "A.'s estate is a stockholder in the bank."
In this sense it is a fictitious or juridical person,
the idea being that a man's business status con-
tinues his existence, for its special purposes, un-
til its final settlement and dissolution. See Mor-
gannelli's Estate v. City of Derby, 105 Conn. 545,
135 A. 911; In re Watson, 86 Misc. 588, 148 N.Y.S.
902, 908.
In its broadest sense, the social, civic, or po-
litical condition or standing of a person; or a
class of persons considered as grouped for social,
civic, or political purposes; as in the phrases, "the
third estate," "the estates of the realm." See 1
B1.Comm. 153.
"Estate" and "degree," when used in the sense
of an individual's personal status, are synonymous,
and indicate the individual's rank in life. State
v. Bishop, 15 Me. 122.
ESTATE AD REMANENTIAM. An estate in fee-
simple. Glan. 1. 7, c. 1.
ESTATE AT SUFFERANCE. The interest of a
tenant who has come rightfully into possession of
lands by permission of the owner, and continues
to occupy the same after the period for which he
is entitled to hold by such permission. 1 Washb.
Real Prop. 392; 2 Bl.Comm. 150; Co.Litt. 57b.
The estate arises where one comes into possession
of land by lawful title, but keeps it afterwards
without any title at all, and the original entry
need not have been under lease or as a tenant of
the dispossessing landlord. Malone v. Floyd, 50
Ga.App. 701, 179 S.E. 176.
ESTATE AT WILL. A species of estate less-than
freehold, where lands and tenements are let by
one man to another, to have and to hold at the
will of the lessor; and the tenant by force of this
lease obtains possession. 2 Bl.Comm. 145; 4 Kent,
Comm. 110; Litt. § 68; Co.Litt. 55a; Tud.L.Cas.R.
P. 10, 14. Or it is where lands are let without lim-
iting any certain and determinate estate. 2 Crabb,
Real Prop. p. 403, § 1543.
The estate arises where lands or tenements are express-
ly demised by one person to another to be held during the
joint wills of both parties, or it may arise by implication of
law wherever one person is put in possession of another's
land with the owner's consent, but under an agreement
which does not suffice to create in the tenant an estate
of freehold or for years. Eason v. Rose, 183 Va. 359, 32 S.
E.2d 66, 68.
ESTATE BY ELEGIT. See Elegit.
ESTATE BY ENTIRETY. A form of co-ownership
of realty or personalty held by husband and wife
in which there is unity of estate, unity of posses-
sion and unity of control of entire property, and
on death of one, survivor takes estate under orig-
inal conveyance. In re Cochran's Real Estate, Sel.
Orph., 66 A.2d 497, 499; In re Gallagher's Estate,
352 Pa. 476, 43 A.2d 132, 133.
ESTATE BY PURCHASE. One acquired in any
other method than descent. In re Field, 182 App.
Div. 226, 169 N.Y.S. 677, 679. See, also, Purchase.
ESTATE BY STATUTE MERCHANT. An estate
whereby the creditor, under the custom of London,
retained the possession of all his debtor's lands
until his debts were paid. 1 Greenl. Cruise, Dig.
515. See Statute Merchant.
ESTATE BY STATUTE STAPLE. See Staple.
ESTATE BY THE CURTESY. See Curtesy.
ESTATE BY THE ENTIRETY. Called also estate
in entirety, or estate by the entireties. An estate
in joint tenancy, plus the unity of the marital re-
lation. Hoyt v. Winstanley, 221 Mich. 515, 191
N.W. 213, 214. A common-law estate, based on
the doctrine that husband and wife are one, and
that a conveyance of real property to husband and
wife creates but one estate. Klorfine v. Cole, 121
Or. 76, 252 P. 708, 709. An estate held by husband
and wife together so long as both live, and, after
the death of either, by the survivor. It is an es-
tate held by husband and wife by virtue of a title
acquired by them jointly after marriage. Bailey
v. Smith, 89 Fla. 303, 103 So. 833, 834. A creature
of the common law created by legal fiction based
wholly on the common-law doctrine that husband
and wife are one, and hence a conveyance to hus-
band and wife created only one estate, and each
was owner of the whole estate, and neither could
dispose of it without the consent of the other, and
on thè death of one survivor was the owner in
fee simple. Wimbush v. Danford, 292 Mo. 588,
238 S.W. 460, 466; In re Flynn, D.C.Pa., 1 F.2d
566, 567; Alexander v. Alexander, 154 Or. 317, 58
P.2d 1265, 1270, 1271.
An "estate by entireties" resembles a "joint tenancy" in
that there is a right of survivorship in both, but such an
estate is distinguishable from a joint tenancy in that the
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ESTATE DUTY
latter may be invested in any number of natural persons
each of whom Is seized of an undivided moiety of the
whole, whereas a "tenancy by entirety" is vested in two
persons only, who in law are regarded as only one, and
each of whom becomes seized of the estate as a whole.
Heffner v. White, 113 Ind.App. 296, 45 N.E.2d 342, 346;
Carlisle v. Parker, 8 W.W.Harr. 83;188 A. 67.
ESTATE DUTY. A duty imposed in England (act
of 1894) superseding probate duty, taxing not the
interest to which some person succeeds on a death,
but the interest which ceased by reason of the
death. Hansen, Death Duties 63. It is leviable on
property which was left untouched by probate du-
ty, such as real estate, yet it is in substance of
the same nature as the old probate duty.
ESTATE FOR LIFE. See Life Estate.
ESTATE FOR YEARS. A species of estate less
than freehold, where a man has an interest in
lands and tenements, and a possession thereof, by
virtue of such interest, for some fixed and deter-
minate period of time; as in the case where lands
are let for the term of a certain number ,of years,
agreed upon between the lessor and the lessee, and
the lessee enters thereon. 1 Steph.Comm. 263, 264.
Blackstone calls this estate a "contract" for the
possession of lands or tenements for some deter-
minate period. 2 Bl.Comm. 140. See Hutcheson
v. Hodnett, 115 Ga. 990, 42 S.E. 422; Harbottle v.
Central Coal & Coke Co., 134 Ark. 254, 203 S.W.
1044, 1046; 2 Crabb, R.P. § 1267; Bac.Abr. Leases;
Wms.R.P. 195. Such estates are frequently called
terms.
"Estates for years" embrace all terms limited to endure
for a definite and ascertained period, however short or
long the period may be; they embrace terms for a fixed
number of weeks or months or for a single year, as well as
for any definite number of years, however great. Guy v.
Brennan, 60 Cal.App. 452, 213 P. 265, 267. Compare Met-
calf Auto Co. v. Norton, 119 Me. 103, 109 A. 384.
ESTATE FROM PERIOD TO PERIOD. An es-
tate continuing for successive periods of a year,
or successive periods of a fraction of a year, un-
less it is terminated. Pitney-Bowes Postage Meter
Co. v. United States, D.C.Conn., 57 F.Supp. 365, 366.
ESTATE FROM YEAR TO YEAR. An example of
an estate for years. It is of later origin and is not
found in Littleton (see § 381). It exists in cases
where the parties stipulate for it, and also where
the parties by their conduct have placed them-
selves in the relation of landlord and tenant with-
out adopting any other term. If a tenar4 has
been allowed to hold over after the expiratibn of
his term in such a way as to preclude the possibil-
ity of his becoming a tenant on sufferance, it is
a tenancy from year to year. Jenks, Mod.Land
Law 88. See, also, Odger, C.L. 869; 7 Q.B. 958.
It was originally a development of a tenancy at
will, by which the tenancy was terminable only
at the time of the year at which it began, and on
notice.
ESTATE IN COMMON. An estate in lands held
by two or more persons, with interests accruing
under different titles; or accruing under the same
title, but at different periods; or conferred by
words of limitation importing that the grantees
are to take in distinct shares. 1 Steph.Comm. 323.
See Tenancy in qommon. An estate held in joint
possession by two or more persons at the same
time by several and distinct titles. 1 Washb.R.P.
415; 2 Bla.Comm. 191; 1 Pres.Est. 139.
ESTATE IN COPARCENARY. See Coparcenary.
ESTATE IN DOWER. See Dower.
ESTATE IN EXPECTANCY. One which is not
yet in possession, but the enjoyment of which is
to begin at a future time; an estate giving a pres-
ent or vested contingent right of future enjoy-
ment. One in which the right to pernancy of the
profits is postponed to some future period. Such
are estates in remainder and reversion. Underhill
v. R. Co., 20 Barb. 455; Fenton v. Miller, 108 1Vrich.
246, 65 N.W. 966; Ayers v. Trust Co., 187 Ill. 42,
58 N.E. 318.
ESTATE IN FEE SIMPLE. See Fee Simple.
ESTATE IN FEE-TAIL. See Tail, Estate in.
ESTATE IN JOINT TENANCY. See Tenancy.
ESTATE IN LANDS. Property one has in lands,
tenements or hereditaments, or conditions or. cir-
cumstances in which tenant stands as to his prop-
erty. Tallman v. Eastern Illinois & Peoria R. Co.,
379 Ill. 441, 41 N.E.2d 537, 540.
ESTATE IN REMAINDER. See Remainder.
ESTATE IN REVERSION. See Reversion.
ESTATE IN SEVERALTY. An estate held by a
person in his own right only, without any other
person being joined or connected with him in point
of interest, during. his estate. This is the most
common and usual way of holding an estate. 2 Bl.
Comm. 179; Cruise, Dig. tit. 18, c. 1, § 1.
ESTATE IN VADIO. An estate in gage or pledge.
2 Bl.Comm. 157; 1 Steph.Comm. 282. See Mort-
gage.
ESTATE LESS THAN FREEHOLD. An estate
for years, estate at will, or estate at sufferance.
Fowler v. Marion & Pittsburg Coal Co., 315 Ill. 312,
146 N.E. 318, 319. See Estate of Freehold.
ESTATE OF FREEHOLD. See Freehold.
ESTATE OF INHERITANCE. An estate which
may descend to heirs. 1 Washb.R.P. 51; Adminis-
tration & Trust Co. v. Catron, 171 Tenn. 268, 102
S.W.2d 59, 60. A species of freehold estate in
lands, otherwise called a "fee," where the tenant
is not only entitled to enjoy the land for his own
life, but where, after his death, it is cast by the
law upon the persons who successively represent
him in perpetuum, in right of blood, according to
a certain established order of descent. 1 Steph.
Comfn. 218; Litt. § 1; Nellis v. Munson, 108 N.Y.
453, 15 N.E. 739; Roulston v. Hall, 66 Ark. 305,
50 S.W. 690, 74 Am.St.Rep. 97; George v. George,
51 Ohio App. 169, 200 N.E. 142, 143.
Estates of freehold are divided into those of inheritance
and those not of inheritance. All estates of inheritance in
tenements are freehold; but, since freeholds embrace es-
tates for life and those of indefinite duration which may
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ESTIMATE
endure for life, all freeholds are not "estates of inherit-
ance." Beirl v. Columbia County, 73 Or. 107, 144 P. 457,
460; Crabb, R.P. § 945.
ESTATE ON CONDITIONAL LIMITATION.
An estate conveyed to one person so that, upon oc-
currence or failure of occurrence of some contin-
gent event, whether conditional or limitative, the
estate shall depart from original grantee and pass
to another. Carpender v. City of New Brunswick,
135 N.J.Eq. 397, 39 A.2d 40, 43.
ESTATE ON LIMITATION. An estate originated
by the use of words denoting duration of time,
such as while, during, so long as, and the like and
when designated limitative event happens, such
estate ends naturally without any re-entry and
property reverts to grantor. Carpender v. City
of New Brunswick, 135 N.J.Eq. 397, 39 A.2d 40,
43. Sometimes referred to as "base fee", "quali-
fied fee", "determinable fee", or "fee simple de-
feasible". Lehigh Valley R. Co. v. Chapman, 171
A.2d 653, 657, 35 N.J. 177.
ESTATE PUR AUTRE VIE. See Pur Autre Vie.
ESTATE SUBJECT TO A CONDITIONAL LIMI-
TATION. The .distinction between an estate upon
condition subsequent and an "estate subject to a
conditional limitation" is that in former words
creating condition do not originally limit term, but
merely permit its termination upon happening of
contingency, while in latter words creating it limit
continuation of estate to time preceding happening
of contingency. Johnson v. Lane, 199 Ark. 740,
135 S.W.2d 853, 866.
ESTATE TAIL. See Tail, Estate in.
ESTATE TAIL, QUASI. When a tenant for life
grants his estate to a man and his heirs, as these
words, though apt and proper to create an estate
tail, cannot do so, because the grantor, being only
tenant for life, cannot grant in perpetuum, there-
fore they are said to create an estate tail quasi,
or improper. Brown.
ESTA'T'E TAX. An excise tax upon privilege of
transferring or transmitting property by reason of
death and is not tax on property itself. Friend
v. Commissioner of Internal Revenue, C.C.A.7, 119
F.2d 959, 960; In re Vanderbilt's Estate, 281 N.Y.
297, 22 N.E.2d 379, 390. An "estate tax" taxes,
not the interest to which some person succeeds on
a death, but the interest which ceases by reason of
the death; while the "inheritance tax" is based
on the interest to which the living person succeeds.
In re Ogden's Estate, 209 Wis. 162, 244 N.W. 571,
573.
It is an "estate tax" when the tax is required to be paid
on the entire net estate before it is divided into its several
parts to be distributed. State Tax Commission v. Back-
man, 88 Utah 424, 55 P.2d 171, 174.
ESTATE UPON CONDITION. An estate in lands,
the existence of which depends upon the happen-
ing or not happening of some uncertain event,
whereby the estate may be either originally creat-
ed, or enlarged, or finally defeated. 2 Bl.Comm.
151; 1 Steph.Comm. 276; Co. Litt. 201a. An es-
tate having a qualification annexed to it, by which
it may, upon the happening of a particular event,
be created, or enlarged, or destroyed. 4, Kent,
Comm. 121. Uri' red States v. 1,010.8 Acres, More
or Less, Situate in Sussex County, Del., D.C.Del.,
56 F.Supp. 120, 127.
ESTATE UPON CONDITION EXPRESSED. An
estate granted, either in fee-simple or otherwise,
with an express qualification annexed, whereby
the estate granted shall either commence, be en-
larged, or be defeated upon performance or breach
of such qualification or condition. 2 Bl.Comm.
154. An estate which is so expressly defined and
limited by the words of its creation that it cannot
endure for any longer time than till the contin-
gency happens upon which the estate is to fail. 1
Steph.Comm. 278.
ESTATE UPON CONDITION IMPLIED. An es-
tate having a condition annexed to it inseparably
from its essence and constitution, although no
condition be expressed in words. 2 Bl.Comm. 152;
4 Kent, Comm. 121.
ESTATES OF THE REALM. The lords spiritual,
the lords temporal, and the commons of Great
Britain. 1 Bl.Comm. 153. Sometimes called the
"three estates." Inasmuch as the lords spiritual
have no separate assembly or negative hi their
political capacity, some authorities reduce the es-
tates in Great Britain to two, the lords and com-
mons. Webster, Dict.
Generally in feudal Europe there were three estates, the
clergy, nobles, and commons. In England (until about the
14th century) the three estates of the realm were the cler-
gy, barons, and knights. In legal practice the lords spirit-
ual and lords temporal are usually collectively designated
under the one name lords. Webster, Dict.
ESTENDARD, ESTENDART, or STANDARD. An
ensign for horsemen in war.
ESTER. A compound ether derived from oxy-
genated acid. E. I. Du Pont De Nemours & Co. v.
Byrnes, D.C.N.Y., 1 F.R.D. 34, 36.
ESTER IN JUDGMENT. L. Fr. To appear be-
fore a tribunal either as plaintiff or defendant.
Kelham.
ESTIMATE. A valuing or rating by the mind,
without actually measuring, weighing, or the like.
City of Tulsa v. Weston, 102 Okl. 222, 229 P. 108,
122. A rough or approximate calculation only.
Bair v. Montrose, 58 Utah 398, 199 P. 667, 669;
United States v. Foster, C.C.A.Iowa, 131 F.2d 3, 7;
P. M. Hennessy Const. Co. v. Hart, 141 Minn. 449,
170 N.W. 579, 598. Thus, a census is a finding of
the population, not an "estimate." State ex rel.
Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591, 597,
Ann.Cas.1917D, 1102.
This word is used to express the mind or judgment of
the speaker or writer on the particular subject under con-
sideration. It implies a calculation or computation, as to
estimate the gain or loss of an enterprise. People v. Clark,
37 Hun, N.Y., 203; New Orleans Terminal Co. v. Dixie
Rendering, La.App., 179 So. 98, 100.
As used in a contract for the sale of an estimated quanti-
ty of goods, "estimated" may mean practically the same
as "more or less." Robbins v. Hill, Tex.Civ.App., 259 S.W.
647

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ESTIMATED
1112, 1115. Generally, the word "estimated" indicates that
a statement of quantity is a matter of description, and not
of the essence of the contract. Biglione v. Bronge, 192 Cal.167, 219 P. 69, 70.
ESTIMATED COST. The "estimated cost" of a
building means the reasonable cost of a building
erected in accordance with the plans and specifica-
tions referred to, and not necessarily the amount
of some actual estimate made by a builder, nor
an estimate agreed upon by the parties, nor yet
an estimate or bid accepted by the defendant.
New Orleans Terminal Co. v. Dixie Rendering, La,
App., 179 So. 98, 100.
ESTOP. To stop, bar, or impede; to prevent; to
preclude. Co.Litt 352a; Olsgard v. Lemke, 32 N.
D. 551, 156 N.W. 102, 103. See Estoppel,
ESTOPPEL. A man's own act or acceptance
stops or closes his mouth to allege or plead the
truth. Caulfield v. Noonan, 229 Iowa 955, 295 N.
W. 466, 471; Williams v. Edwards, 163 Okl, 246,
22 P.2d 1026.
An estoppel arises when one is concluded and forbidden
by law to speak against his own act or deed. Gural v.
Engle, 128 N,J.L, 252, 25 A.2d 257, 261; an inconsistent
position, attitude or course of conduct may not be adopted
to loss or injury of another. Brand v. Farmers Mut. Pro-
tective Ass'n of Texas, Tex.Civ.App., 95 S.W.2d 994, 997.
Estoppel is a bar or impediment which precludes allega-
tion or denial of a certain fact or state of facts, in con-
sequence of previous allegation or denial or conduct or ad-
mission, or in consequence of a final adjudication of the
matter in a court of law, Lewis v. King, 157 La. 718, 103
So. 19, 22; Agoodash Achim of Ithaca v. Temple Beth-
147 Misc, 405, 263 N.Y.S. 81; Chernick V. National.
Surety Co.: 50 R.I. 419, 148 A. 418, 419 ; an equitable doc-
trine to accomplish justice, Sisson v. Swift, 243 Ala. 289,
9 So.2d 891, 903; Elowe v. Superior Fire Ins. Co., 307 Ill,
App, 569, 30 N.E.2d 953, 958; preclusion by act or conduct
from asserting right which might otherwise have existed.
Reynolds v. Travelers' ins. Co. 176 Wash. 36, 28 P.2d 310,
314; Tucker v. Brown, 20 Wash.2d 740, 150 P.2d 604, 652;
Preclusion from alleging or denying fact because of pre-
vious action, inaction, allegation, or denial. Steph.P1. 239;
Spear v. Farwell, 5 Cal.App.2d 111, 42 P.2d 391, 392;
Scholl v. Scholl, 123 Ohio St. 1, 173 N.E. 305, 306; preclu-
sion from denying truth of fact which has in contempla-
tion of law become settled by acts and proceedings of ju-
dicial or legislative officers, or by act of party himself,
either by conventional writing or by representations, ex-
press or implied in pais, May v. City of Kearney, 145 Neb.
475, 17 N.W.2d 448, 458; shield for defense but not a
weapon of attack, United States, to Use of Noland Co. v.
Maryland Casualty Co., D.C.Md., 38 F.Supp. 479, 484. It
is available only for protection, and cannot be used as a
weapon of assault. Stanio V. Berner Lohne Co., 127 Conn,
431, 17 A.2d 502, 504; It operates to put party entitled to
its benefits in same position as if thing represented were
true. May v. City of Kearney, 145 Neb. 475, 17 N.W.2d
448, 458.
Under law of "estoppel" where one of two innocent per-
sons must suffer, he whose act occasioned loss must bear
it. Buxbaum v. Assicurazioni General!, 175 Misc. 785, 25
N.Y.S.2d 357, 360; Sackenreuther v. Winston, Tex.Civ.
App., 137 S.W.2d 93, 96.
Elements or essentials of estoppel include change of posi-
tion of parties so that party against whom estoppel is in-
voked has received a profit or benefit or party invoking
estoppel has changed his position to his detriment, Wertz
v. Shane, 216 Iowa 768, 249 N.W. 661; Lebold v. Inland
Steel Co., C.C.A.I11., 125 F.2d 369, 375; Garmon v. Fitz-
gerald, 168 Miss. 532, 151 So. 726, 728; circumstances such
that a knowledge of truth is necessarily imputed to party
estopped, Froslee v. Sonju, 209 Minn. 522, 297 N.W. 1, 3, 4;
conduct intended to deceive or of such nature that reason-
ably prudent person would have been deceived, Cellized
Floors v. Glens Falls Indemnity Co. of New York, 9 N.J.
Misc. 1111, 156 A. 845, 846; Agnew v. Mullenix, La, App.,
11 So.2d 106, 107; direct or immediate influence Ion party
claiming benefit, of estoppel, Stanolind Oil & Gas Co. v.
Midas Oil Co., Tex.Civ.App., 173 S.W.2d 342, 345; false
representation or wrongful silence or concealment, Noxon
v. Cockburn, Tex.Civ.App., 147 S.W.2d 872, 875; Weber v.
Fohl, 111 Ind.App. 388, 41. N.E.2d 648, 650, 651; Van An-
twerp v. United States, C.C.A.Cal., 92 F.2d 871, 875; in-
ducing another to alter his position or to do that which he
would not otherwise have done, Babcock v. McKee, S.D.,
18 N.W.2d 750, 754; Wellsville East Field Irr. Co. v.
Lindsay Land & Livestock Co., 104 Utah 448, 137 P.2d 634,
647; Albermarle County V. Massey, 183 Va. 310, 32 S.E.2d.
228, 230; intent or reasonable expectation of party estop-
ped that other would act, Bank of Sutton v. Skidmore, 113'W.Va. 25, 167 S.E. 144, 146; Mercer Casualty Co. v. Lewis,
41 Cal.App.2d 918, 108 P.2d 65, 67; knowledge of facts by
party to be estopped, Caveney v. Caveney, 234 Wis. 637, 291
N.W. 818, 824; In re Dimon's Estate, Sur., 32 N.Y.S.2d
239, 243; lack of knowledge and means of knowledge by
party claiming estoppel, Ainscow v. Alexander, Der.Super.,
39 A.2d 54, 60; Froslee v. Sonju, 209 Minn, 522, 297 N.W.
1, 3, 4; misleading of one party by another party, Williams
,v. Middle-West Roads Co., 295 Ky. 648, 175 S.W.2d 136, 138;
United States, to Use of Noland Co. v. Marfand Casualty
Co., D.C.Md., 38 F.Supp. 479, 484; prejudice or loss or in-
jury to party invoking estoppel, Vinton V. Atlas Assur. Co.,
107 Vt. 272, 178 A. 909, 912; Commission v, Shell Oil Co.,
Tex.Civ.App., 170 S.W.2d 568, 570; Hooper v. Bail, 133 Me.
412, 179 A. 404, 406; reliance by one party on act, word or
conduct of other party, Gosney v. Metropolitan Life Ins.
Co., C.C.A.Mo., 114 F.2d 649, 652; In re Sarvey's Estate,
206 Iowa 527, 219 N.W. 318, 321; right of party asserting
estoppel to believe party estopped intended that his con-
duct should be acted upon, Lusitanian-American Develop-
ment Co. v. Seaboard Dairy Credit Corporation, 1 Ca1.2d
121, 34 P.2d 139, 142; wrongdoing on part of person sought
to be estopped, Sovereign Camp, W. 0. W., v. Johnson,
Tex.Civ.App., 64 S.W.2d 1084, 1087. Nor on mere delay in
asserting a claim, Peyrefitte v. Union Homestead Ass'n, La.
App., 185 So. 693, 695.
Nor on errors of judgment, Northwestern Nat. Bank v.
Commonwealth, 345 Pa. 192, 27 A.2d 20, 23; nor on error of
law, United States v. Du Pont, D.C.Del., 47 F.Supp. 894,
897.
Estoppel is or may be based on acceptance of benefits,
Rhodus Geatley, 317 Mo. 397, 147 S.W.2d 631, 637, 638,
639; Harjo v. Johnston, 187 Okl. 561, 104 P.2d 985, 992, 998;
acknowledgments of matters of fact but not acknowledg-
ments or statements of propositions of law, McDonald v.
Richard, 203 La. 155, 13 So.2d 712, 718; acquiescence, In re
Kennedy's Estate, 321 Pa. 225, 183 A. 798, 801; acts done
under or in performance of contract, Jackson v. United
Gas Public Service Co., 196 La. 1, 198 So, 633, 640; Finch
v. Smith, 177 Okl. 307, 58 P.2d 850, 851; actual or construc-
tive fraudulent conduct, Peterson v. Hudson Ins. Co., 41
Ariz. 31, 15 P.2d 249, 252; adjudication, Kunkel v. Eastern
Iowa Light & Power Co-op., 232 Iowa 649, 5 N.W.2d 899,
903; Citizens' Loan & Trust Co. of Washington, Ind. v.
Sanders, 99 Ind.App. 77, 187 N.E. 396, 398; admissions or
denials by which another is induced to act to his injury,
New York Life Ins. Co. v. Oates, 122 Fla, 540, 166 So. 269,
276; Wabash Drilling Co. v. Ellis, 230 Ky. 769, 20 S.W.2d
1002, 1004; agreement on and settlement of facts by force
of entering into contract, Masterson v. Bouldin, Tex.Civ.
App., 151 S.W.2d 301, 307; In re Schofield's Estate, 101
Colo. 443, 73 P.2d 1381; assertion of facts on which an-
other relies, Fedas v. Insurance Co. of State of Pennsyl-
vania, 300 Pa. 555, 151 A. 285, 287; assumption of position
which, if not maintained, would result in injustice to an-
other, Harvey v. J. P. Morgan & Co., 166 Misc. 455, 2 N.Y.
5.2d 520; concealment of facts, Greer v. Franklin Life Ins.
Co., Tex.Civ.App., 109 S.W.2d 305, 315; Rosser v. Texas
Co., 173 Okl. 309, 48 P.2d 327, 330; conduct or acts amount-
ing to a representation or a concealment, Spradling v.
Spradling, 118 W.Va. 308, 190 S.E. 537, 540; consent to
copyright infringement, whether express or implied from
long acquiescence with knowledge of the infringement,
Edwin L. Wiegand Co. v. Harold E. Trent Co., C.C.A.Pa.,
122 F.2d 920, 925; election between rights or remedies,
Hartley v. Hartley, 173 Ga. 710, 161 S.E. 358, 360; Mason
& Mason v. Brown, Tex.Civ.App., 182 S.W.2d 729, 733;
fault of party estopped, Conner v. Caldwell, 208 Minn. 502,
294 N.W. 650, 653; inaction, Utah State Building Commis-
sion, for Use and Benefit of Mountain States Supply Co., v.
Great American Indemnity Co., 105 Utah 11, 140 P.2d 763,
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ESTOPPEL
771, 772; Hankins v. Waddell, 26 Tenn.App. 71, 167 S.W.
2d 694, 696; injury resulting from parties' conduct, In re
Bastanchury Corporation, C.C.A.Cal., 66 F.2d 653, 657; in-
nocent misrepresentation, Countway v. Commissioner of
Internal Revenue, C.C.A.1, 127 F.2d 69, 76; lathes, Oak
Lawn Cemetery of Baltimore County v. Baltimore County
Com'rs, 174 Md. 356, 198 A. 600, 605, 115 A.L.R. 1478;
language or conduct which has induced another to act,
French Market Ice Mfg. Co. of New Orleans v. Dalton, 15
La.App-. 115, 130 So. 122, 123; Brown v. Federal Land
Bank of Houston, Tex.Civ.App., 180 S.W.2d 647, 652;
matter of record, Coral Realty Co. v. Peacock Holding Co.,
103 Fla. 916, 138 So. 622, 624; misrepresentation, Cushing
v. United States, D.C.Mass., 18 F.Supp. 83, 85; Rhoads v.
Rhoads, 342 Mo. 934, 119 S.W.2d 247, 252; negligence,
Postal v. Home State Bank for Savings, 284 Mich. 220, 279
N.W. 488, 491; Fisher v. Beckwith, 30 Wis. 55, 11 Am.
Rep. 546; omission to act, West v. Cleveland Ry. Co.,
Ohio App., 58 N.E.2d 799, 801; prejudice, Alderman v.
Town of West Haven, 124 Conn. 391, 200 A. 330, 333; prior
judgment, Morrell v. Towle, 141 Neb. 370, 3 N.W.2d 655,
664; Kelliher v. Stone & Webster, C.C.A.Fla., 75 F.2d 331,
332; Promise of future performance, Albachten v. Brad-
ley, 212 Minn. 359, 3 N.W.2d 783, 785; provisions of a deed,
Carson v. Cochran, 52 Minn. 67, 53 N.W. 1130; Robert v.
O'Connell, 269 Mass. 532, 169 N.E. 487, 488; public policy,
Ervin v. City of Pittsburgh, 339 Pa. 241, 14 A.2d 297, 300;
Bloomfield Village Drain Dist. v. Keefe, C.C.A.Mich., 119
F.2d 157, 163, 165; representation or concealment of facts,
Kerestury v. Elkhart Packing Co., 108 Ind.App. 148, 27 N.
E.2d 383, 385; Albermarle County v. Massey, 183 Va. 310,
32 S.E.2d 228, 230; silence, Rone v. Sawrky, 197 Ark. 472,
123 S.W.2d 524, 526, 527; Brown v. Brown, 347 Mo. 45, 146
S.W.2d 553, 555.
Estoppels are sometimes said to be of three kinds: (1)
by deed; (2) by matter of record; (3) by matter in pais.
The first two are also called legal estoppels, as distin-
guished from the last kind, known as equitable estoppels.
Acts and Declarations
An "estoppel by acts and declarations" is such
as arises from the acts and declarations of a per-
son by which he designedly induces another to al-
ter his position injuriously to himself. Brauch V.
Peking, 219 Iowa 556, 258 N.W. 892,
Adjudication Distinguished
"Adjudication" and an "estoppel" from relitigating
things are different in that there is an adjudication when
a suit is repeated, but that there may be an estoppel be-
cause some fact which is controlling in both actions was
litigated and set at rest in first action. Kunkel v. Eastern
Iowa Light & Power Co-Op., 232 Iowa 649, 5 N.W.2d 899,
903.
Common Law
"Estoppel at common law" includes estoppel by record,
estoppel by deed, and certain cases of estoppel in pais
which are recognized in courts of law. Thomas v. Conyers,
198 N.C. 229, 151 S.E. 270, 273.
Election Distinguished
"Election" differs from an "estoppel in pais" in that in
order to be effective it need not be acted upon by the other
party by way of a detrimental change of his position,
provided the election is a decisive one. Phillips v. Rooker,
134 Tenn. 457, 184 S.W. 12, 14.
Estoppel Against Estoppel
Doctrine that two estoppels may destroy each
other, or that one estoppel may set another at
large. Shean v. United States Fidelity & Guaran-
ty Co., 263 Mich. 535, 248 N.W. 892, 893.
In wife's divorce suit, evidence showed that wife in
procuring void Nevada divorce decree was under husband's
duress, domination, and compulsion, and hence there arose
an "estoppel against estoppel" destroying each other, and
wife was not barred from setting up invalidity of Nevada
decree. Lippincott v. Lippincott, 141 Neb. 186, 3 N.W.2d
207, 215, 140 A.L.R. 901.
Fraud
Estoppel is a penalty paid by perpetrator of
wrong by affirmative act which, though without
fraudulent intent, may result in legal fraud on
another. Harris v. Prince, Tex.Civ.App., 98 S.W.•
2d 1022, 1026.
A judgment procured by fraud may not be used as the
basis of an "estoppel". Seubert v. Seubert, 68 S.D. 195,
299 N.W. 873, 875; Actual or intended fraud is not an es-
sential element of estoppel, but estoppel arises when
omission to speak is an actual or constructive fraud. Kel-
ley-Springfield Tire Co. v. Stein, 163 Misc. 393, 297 N.Y.S.
22, 26. An act done which cannot be contravened without
fraud may be basis of estoppel, Tradesmens Nat. Bank of
New Haven v. Minor, 122 Conn. 419, 190 A. 270, 272, An es-
sential element of "equitable estoppel" is fraudulent in-
tent. Fleishbein v. Western Auto Supply Agency, 19 Cal.
App.2d 424, 65 P.2d 928; An estoppel does not require a
showing of fraudulent intent. New Jersey Suburban Water
Co. v. Town of Harrison, 122 N.J.L. 189, 3 A.2d 623, 625,
626, 627; An estoppel may arise although there is no de-
signed fraud. Laraway v. First Nat. Bank of La Verne, 39
Cal.App.2d 718, 104 P.2d 95, 101; Estoppel is an equitable
principle dependent on fraud. Volk v. City of New York,
259 App.Div. 247, 19 N.Y.S.2d 53, 60.
Intent
"Estoppel" in its broadest sense is penalty paid
by one perpetrating wrong by known fraud or by
affirmative act which, though without fraudulent
intent, may result in legal fraud on another. Har-
ris v. Prince, Tex.Civ.App., 98 S.W.2d 1022, 1026.
Actual or intended fraud is not an essential element of
estoppel but estoppel arises when omission to speak is an
actual or constructive fraud. Kelley-Springfield Tire Co.
v. Stein, 163 Misc. 393, 297 N.Y.S. 22, 26. Elements of
equitable, estoppel are representations intentionally made
under such circumstances as show that party making them
intended, or might reasonably have anticipated, that par-
ty to whom they are made, or to whom they are communi-
cated, will rely and act on them as true, Crane Co. of
Minnesota v. Advance Plumbing & Heating Co., 177 Minn.
132, 224 N.W. 847, 848. An essential element of equitable
estoppel is fraudulent intent but careless and culpable
conduct is equivalent to intent to deceive. Fleishbein v.
Western Auto Supply Agency, 19 Cal.App.2d 424, 65 P.2d
928. An estoppel arises when one by acts, representations,
admissions or silence intentionally induces another to
change his position for the worse. Smith v. Vara, 136
Misc. 500, 241 N.Y.S. 202, 209; American Exchange Nat.
Bank v. Winder, 198 N.C. 18, 150 S.E. 489, 491. An estoppel
does not require a showing of fraudulent intent. New
Jersey Suburban Water Co. v. Town of Harrison, 122 N.J.
L. 189, 3 A.2d 623, 625, 626, 627. An estoppel may arise
where there is no intent to mislead. Mancini v. Thomas,
113 Vt. 322, 34 A.2d 105, 109.
Legal Title to Land
Estoppel affecting legal title to land requires
conduct amounting to knowing representation or
concealment relied on by other party changing his
position for the worse. Crane v. Esmond, 214
Wis. 571, 253 N.W. 780.
It requires conduct amounting to representation or con-
cealment of material facts known to party estopped at time
of conduct, or at least under circumstances necessarily im-
puting knowledge thereof, and truth concerning such facts
must be unknown to other party claiming benefit of es-
toppel, with further requirement that conduct was done
with intention or expectation that it would be acted on,
and other party led to act thereon in reliance on conduct
so as to change his position for the worse. Jacksonville
Public Service Corporation v. Calhoun Water Co., 219 Ala.
616, 123 So. 79, 81, 64 A.L.R. 1550.
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ESTOPPEL
Misrepresentation
See Representation, Estoppel By.
Pleading
Pleader must allege and prove not only that
person sought to be estopped made misleading
statements and representations but that pleader
actually believed and relied on them and was mis-
led to his injury thereby. Stanolind Oil & Gas Co.
v. Midas Oil Co., Tex.Civ.App., 173 S.W.2d 342,
345.
A plea, replication, or other pleading, which, without
confessing or denying the matter of fact adversely alleged,
relies merely on some matter of estoppel as a ground for
excluding the opposite party from the allegation of the
fact. Steph.P1. 219; 3 Bl.Comm. 308.
A plea which neither admits nor denies the facts alleged
by the plaintiff, but denies his right to allege them. Gould,
Pl. c. 2, § 39.
A special plea in bar, which happens where a man has
done some act or executed some deed which precludes him
from averring anything to the contrary. 3 Bl.Comm. 308.
A pleader is not "estopped" by judicial allegations which
have neither deceived nor damaged anyone. Thomas v.
Leonard Truck Lines, La.App., 7 So.2d 753, 756; Hearon
v. Davis, La.App., 8 So.2d 787, 791.
Person pleading estoppel must have been misled to his
injury by acts of omission or commission of him who is
sought to be estopped. Selber Bros. v. Newstadt's Shoe
Stores, 203 La. 316, 14 So.2d 10; 13.
Plea of estoppel lacks merit unless it appears that op-
posing litigant has been misled, deceived or has suffered
damage from the allegations of pleader. Mounger v. Fer-
rell, La.App., 11 So.2d 56, 60.
Plea of "estoppel" was fatally defective where there was
no statement that defendant relied on course alleged to
have been taken by plaintiff. Sertic v. Roberts, 171 Or. 121,
136 P.2d 248, 251.
Statements in pleading in former action which are mere-
ly assertions of conclusion of law do not constitute "es-
toppel by pleading." Smith v. Saulsberry, 157 Wash. 270,
288 P. 927, 930.
Ratification Distinguished
The substance of "estoppel" is the inducement
of another to act to his prejudice. The substance
of "ratification" is confirmation after conduct.
Citizens State Bank of Thedford v. United States
Fidelity & Guaranty Co. of Baltimore, Md., 130
Neb. 603, 266 N.W. 81, 84, 103 A.L.R. 1401; Cudahy
Bros. Co. v. West Michigan Dock & Market Corpo-
ration, 285 Mich. 18, 280 N.W. 93, 95; Gillihan v.
Morguelan, 299 Ky. 671, 186 S.W.2d 807, 809.
By ratification party is bound because he intended to be,
while under "estoppel" he is bound because other party
will be prejudiced unless the law treats him as legally
bound. Carlile v. Harris, Tex.Civ.App., 38 S.W.2d 622,
624; doctrine of ratification is based on fact of intention
to carry out terms of certain agreement, while doctrine of
estoppel is based on right of party to deny existence of
agreement by reason of misleading acts. B. F. C. Morris
Co. v. Mason, 171 Okl. 589, 39 P.2d 1, 3; Ratification re-
quires no change of position or prejudice. Texas & Pacific
Coal & Oil Co. v. Kirtley, Tex.Civ.App., 288 S.W. 619, 622.
Ratification is retroactive and validates all of the act in-
volved, while estoppel extends only to so much of the act
as is affected by the conduct working the estoppel. Wood-
worth v. School Dist. No. 2, Stevens County, 92 Wash. 456,
1.59 P. 757, 760. Generally speaking, "ratification" applies
to a formal declaration of the approval of another's act,
whereas "estoppel" is where the party is bound by his
own act, but the legal effect is the same. Zenos v. Britten-
Cook Land & Live Stock Co., 75 Cal.App. 299, 242 P. 914,
917; Marian Sa y . Bank v. Leahy, 200 Iowa 220, 204 N.W.
156, 458.
Recital
The theory of "estoppel by recital" is that holder
of instrument is entitled to rely upon facts recit-
ed therein. Bloomfield Village Drain Dist. v.
Keefe, C.C.A.Mich., 119 F.2d 157, 163, 165.
Res Judicata Distinguished
A prior judgment between same parties, which
is not strictly res judicata because based upon dif-
ferent cause of action, operates as an "estoppel"
only as to matters actually in issue or points con-
troverted. JEtna Life Ins. Co. of Hartford, Conn.,
v. Martin, C.C.A.Ark., 108 F.2d 824, 827; Cunning-
ham v. Oklahoma City, 188 Okl. 466, 110 P.2d 1102,
1104.
Doctrine that issues decided may not be drawn in ques-
tion in any future action between same parties or their
privies, whether cause of action in the two actions be
identical or different, is based on "estoppel" rather than
upon "res judicata". Norwood v. McDonald, 142 Ohio St.
299, 52 N.E.2d 67, 71, 74; In a later action upon a different
cause of action a judgment operates as an "estoppel" only
as to such issues in second action as were actually de-
termined in the first action. Lorber v. Vista Irr. Dist., C.
C.A.Cal., 127 F.2d 628, 634. The doctrine of "res judicata"
is a branch of law of "estoppel". Krisher v. McAllister, 71
Ohio App. 58, 47 N.E.2d 817, 819; The plea of "res judicata"
is in its nature an "estoppel" against the losing party
from again litigating matters involved in previous action,
but the plea does not have that effect as to matters trans-
piring subsequently. Fort Worth Stockyards Co. v. Brown,
Tex.Civ.App., 161 S.W.2d 549, 555. Where a second action
between same parties involves different cause of action,
under doctrine of "res judicata", judgment in first action
operates as an "estoppel" only as to those matters which
were in issue and actually litigated. International Broth-
erhood of Electrical Workers v. Bridg,eman, 179 Va. 533, 19
S. E.2d 667, 670.
Stare Decisis
The doctrine of "stare decisis" is but an appli-
cation of the doctrine of "estoppel." Brown v.
Rosenbaum, 175 Misc. 295, 23 N.Y.S.2d 161, 171;
The doctrine of "stare decisis" involves no element
of "estoppel". Joslin v. State, Tex.Civ.App., 146
S.W.2d 208, 212.
Suppression
The doctrine of "estoppel by concealment and
suppression" applies only where there has been
reduction to practice of invention. Bogoslowsky
v. Huse, 142 F.2d 75, 76, 31 C.C.P.A. (Patents) 1034.
Waiver Distinguished
Waiver is intentional relinquishment of a known
right. Globe Indemnity Co. v. Cohen, C.C.A.Pa.,
106 F.2d 687, 691; Beatty v. Employers' Liability
Assur. Corporation, 106 Vt. 25, 168 A. 919, 922;
but may be more narrowly and accurately defined
as intended giving up of known privilege or pow-
er. John Alt Furniture Co. v. Maryland Casualty.
Co., C.C.A.Mo., 88 F.2d 36, 41. Waiver is volun-
tary and intentional. Insurance Co. of North
America v. Williams, 42 Ariz. 331, 26 P.2d 117, 119;
Sentinel Fire Ins. Co. v. McRoberts, 50 Ga.App.
732, 179 S.E. 256. Waiver is voluntary surrender
or relinquishment of some known right, benefit or
advantage; estoppel is the inhibition to assert
it. Benson v. Borden, 174 Md. 202, 198 A. 419,
427, 428; Johnston v. Columbian Nat. Life Ins.
Co., 130 Me. 143, 154 A. 79, 80.
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ESTRAY
Acts, conduct or declarations insufficient to create a
technical estoppel may create a waiver. Benson v. Borden,
174 Md. 202, 198 A. 419, 427, 428. Acts or conduct of only
one of the parties is involved in waiver while an estoppel
may arise where there is no intent to mislead. Beatty v.
Employers' Liability Assur. Corporation, 106 Vt. 25, 168 A.
919, 922; Benson v. Borden, 174 Md. 202, 198 A. 419, 427,
428. Actual intent to abandon or surrender right is es-
sential in waiver and immaterial in estoppel. Equitable
Life Assur. Soc. of U. S. v. Pettid, 40 Ariz. 239, 11 P.2d
833, 838; Boyce v. Toke Point Oyster Co., Consol., 145 Or.
114, 25 P.2d 930; Actual or constructive fraudulent conduct
is essential to estoppel but not to waiver. Insurance Co.
of North America v. Williams, 42 Ariz. 331, 26 P.2d 117,
119; An act which operates to injury of other party is
essential to estoppel whereas there may be a waiver, al-
though the opposite party is beneficially affected. Sentinel
Fire Ins. Co. v. McRoberts, 50 Ga.App. 732, 179 S.E. 256;
Conduct or dealings with another by which other is induced
to act or to forbear to act is basis of estoppel whereas
waiver is intentional relinquishment of a known right. De
Pasquale v. Union Indemnity Co., 50 R.I. 509, 149 A. 795;
Reynolds v. Travelers' Ins. Co., 176 Wash. 36, 28 P.2d 310,
314. Estoppel results from an act which operates to the
injury of the other party, while waiver may even affect
him beneficially. City of Glendale v. Coquat, 46 Ariz. 478,
52 P.2d 1178, 1180, 102 A.L.R. 837. Fraud may be implied
in estoppel but never in waiver. City of Glendale v. Co-
quat, 46 Ariz. 478, 52 P.2d 1178, 1180, 102 A.L.R. 837;
Benson v. Borden, 174 Md. 202, 198 A. 419, 427, 428. Ignor-
ance of party who invokes estoppel, representations or con-
duct of party estopped which misled, and an innocent and
deleterious change of position in reliance upon such repre-
sentations or conduct are essential to estoppel whereas
waiver is an intentional relinquishment. Ellis v. Metro-
politan Casualty Ins. Co. of New York, 187 S.C. 162, 197 S.
E. 510; Knowledge and intention are both involved in,
waiver while an estoppel may arise where there is no in-
tent to mislead. Benson v. Borden, 174 Md. 202, 198 A.
419, 427, 428; Beatty v. Employers' Liability Assur. Corpo-
ration, 106 Vt. 25, 168 A. 919, 922. Misleading of party to
his injury or prejudice or into altered position is essential
to estoppel but not to waiver. A-1 Cleaners & Dyers v. Amer-
ican Mut. Liability Ins. Co. of Boston, 307 Ill.App. 64, 30 N.
E.2d 87, 88; Beatty v. Employers' Liability Assur. Corpo-
ration, 106 Vt. 25, 168 A. 919, 922. Waiver consists merely
in renouncing some right or in ratifying what one might
repudiate. Williams v. Anaconda Copper Mining Co., 96
Mont. 204, 29 P.2d 649, 651. Waiver depends on what one
party intends to do, rather than upon what he induces his
adversary to do, as in "estoppel". Nathan Miller, Inc., v.
Northern Ins. Co. of New York, 3 Terry 523, 39 A.2d 23, 25;
Wisdom v. Board of Sup'rs of Polk County, 236 Iowa 669,
19 N.W.2d 602, 610.
Implied waiver is kin to estoppel and rests on course of
conduct evidencing intention not to insist on some perform-
ance due. Kansas City Life Ins. Co. v. Davis, C.C.A.Cal.,
95 F.2d 952, 957. It does not necessarily include all ele-
ments of estoppel. Smith v. Coutant, 232 Iowa 887, 6 N.W.
2d 421, 425.
Legal effect of waiver and estoppel is the same. Wood-
men of the World Life Ins. Soc. v. Greathouse, 242 Ala. 532,
7 So.2d 89, 91.
Technically, a distinction exists between "waiver" and
"estoppel" but under insurance law, terms are used inter-
changeably. Boyle Road & Bridge Co. v. American Em-
ployers' Ins. Co. of Boston, Mass., 195 S.C. 397, 11 S.E.2d
438, 440, 441; The doctrine of waiver, as asserted against
insurance companies to avoid the strict enforcement of con-
ditions contained in their policies, is only another name for
the doctrine of estoppel. Rushville Nat. Bank of Rush-
ville v. State Life Ins. Co., 210 Ind. 492, 1 N.E.2d 445, 448.
While there are distinguishing features between "waiver"
and "estoppel," waiver belongs to family of estoppel and
the terms are frequently used as meaning the same thing
in law of insurance contracts. Ellis v. Metropolitan Cas-
ualty Ins. Co. of New York, 187 S.C. 162, 197 S.E. 510, 512.
Warranty
An estoppel based on principle of giving effect
to manifest intent of grantor and of preventing
grantor from derogating or destroying his own
grant by subsequent act. Lewis v. King, 157 La.
718, 103 So. 19, 22; Jordan v. Marks, D.C.La., 55
F.Supp. 204, 209. See, also, Deed, Estoppel By.
For "Acquiescence, Estoppel By", "Admissions,
Estoppel By", "Collateral Attack", "Concealment,
Estoppel By," "Conduct, Estoppel By", "Contract,
Estoppel By", "Deed, Estoppel By", "Election, Es-
toppel By", "Equitable Estoppel", "In Pais, Estop-
pel In", "Judgment, Estoppel By", "Judicial Es-
toppel," "Laches, Estoppel By," "Legal Estoppel,"
"Negligence, Estoppel By," "Promissory Estop-
pel," "Quasi Estoppel," "Record, Estoppel By,"
"Representation, Estoppel By," "Silence, Estoppel
By" and "Verdict, Estoppel By," see those titles.
ESTOVERIA SUNT ARDENDI, ARANDI, CON-
STRUENDI ET CLAUDENDI. 13 Coke, 68. Es-
tovers are of fire-bote, plow-bote, house-bote, and
hedge-bote.
ESTOVERHS HABENDIS. A writ for a wife
judicially separated to recover her alimony or es-
tovers. Obsolete.
ESTOVERS. The right to use,- during lease, what-
ever timber there may be on leased premises nec-
essary to promote good husbandry. Hood v. Fos-
ter, 194 Miss. 812, 13 So.2d 652, 653.
An allowance made to a person out of an estate
or other thing for his or her support, as for food
and raiment.
An allowance (more commonly called "ali-
mony") granted to a woman divorced a mensa et
thoro, for her support out of her husband's estate.
1 Bl.Comm. 441.
The right or privilege which a tenant has to furnish
himself with so much wood from the demised premises as
may be sufficient or necessary for his fuel, fences, and oth-
er agricultural operations. 2 Bl.Comm. 35; Woodf.Landl.
& Ten. 232; Zimmerman v. Shreeve, 59 Md. 363; Van
Rensselaer v. Radcliff, 10 Wend. (N.Y.) 639, 25 Am. Dec.
582.
There is much learning in the old books relative to the
creation, apportionment, suspension, and extinguishment
of these rights, very little of which, however, is applicable
to the condition of things in this country, except perhaps
in New York, where the grants of the manor-lands have led
to some litigation on the subject. Tayl.Landl. & T. § 220.
See 4 Wash.R.P. 99; 7 Bing. 640; Richardson v. York, 14
Me. 221; Dalton v. Dalton, 42 N.C. 197; Loomis v. Wilbur,
5 Mas. 13, Fed.Cas.No.8,498.
Common of estovers, see Common.
ESTRAY. Cattle whose owner is unknown. 2
Kent, Comm. 359; Spelman. Any beast, not wild,
found within any lordship, and not owned by any
man. Cowell; 1 Bl.Comm. 297. These belonged
to the lord of the soil. Britt. c. 17. An animal
that has strayed away and lost itself; a wander-
ing beast which no one seeks, follows, or claims.
Campbell v. Hamilton, 42 N.D. 216, 172 N.W. 810.
Estray must be understood as denoting a wandering
beast whose owner is unknown to the person who takes it
up. An estray is an animal that has escaped from its
owner, and wanders or strays about; usually defined, at
common law, as a wandering animal whose owner is
unknown. An animal cannot be an estray when on the
range where it was raised, and permitted by its owner to
run, and especially when the owner is known to the party
who takes it up. The fact of its being breachy or vicious
does not make it an estray. Kinney v. Roe, 70 Iowa, 509,
30 N.W. 776; Shepherd v. Hawley, 4 Or. 208; Lyman v.
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ESTRAY
Gipson, 18 Pick., Mass., 426; but see Worthington v. Brent,
69 Mo. 205; State v. Apel, 14 Tex. 431.
Heifers trespassing unattended upon adjoining ranch
when taken up held "estrays" within Estray Act even if
heifers' owners were known, since act covers animals
belonging to known as well as to unknown owners. Soares
v. Ghisletta, 1 Cal.App.2d 402, 36 P.2d 668, 669.
The term is used of flotsam at sea. 15 L.Q.R.
357.
ESTREAT, v. To take out a forfeited recogniz-
ance from the records of a court, and return it to
the court of exchequer, to be prosecuted. See
Estreat, n.
A forfeited recognizance taken out from among the other
records for the purpose of being sent up to the exchequer,
that the parties might be sued thereon, was said to be
estreated. 4 Bi.Comm. 253. And see Louisiana Society v.
Cage, 45 La.Ann. 1394, 14 So. 422.
There is no "estreat" or taking a judgment of forfeiture
of a bail recognizance from the records and sending it up
to the exchequer for suit thereon in Louisiana, since the
same court which renders a judgment executes it, and the
same officers who are charged with procuring it to be ren-
dered are also charged with procuring it to be executed.
State v. Johnson, 132 La. 11, 60 So. 702, 703.
ESTREAT, n. (From Lat. extractum.) In Eng-
lish law. A copy or extract from the book of es-
treats, that is, the rolls of any court, in which the
amercements or fines, recognizances, etc., imposed
or taken by that court upon or from the accused,
are set down, and which are to be levied by the
bailiff or other officer of the court. Cowell;
Brown. A true copy or note of some original writ-
ing or record, and especially of fines and amerce-
ments imposed by a court, extracted from the rec-
ord, and certified to a proper officer or officers
authorized and required to collect them. Fitzh.
N.B. 57, 76.
ESTRECIATUS. Straightened, as applied to
roads. Cowell.
ESTREPE. To strip; to despoil; to lay waste;
to comit waste upon an estate, as by cutting down
trees, removing buildings, etc. To injure the value
of a reversionary interest by stripping or spoiling
the estate.
ESTREPEMENT. A species of aggravated
waste, by stripping or devastating the land, to the
injury of the reversioner, and especially pending
a suit for possession.
ESTREPEMENT, WRIT OF. This was a com-
mon-law writ of waste, which lay in particular
for the reversioner against the tenant for life, in
respect of damage or injury to the land commit-
ted by the latter.
As it was only auxiliary to a real action for recovery of
the land, and as equity afforded the same relief by injunc-
tion, the writ fell into disuse in England, and was abol-
ished by 3 & 4 Will. IV. c. 27. In Pennsylvania, by statute,
the remedy by estrepement is extended for the benefit of
specified persons. See 10 Viner, Abr. 497; Woodf. Landl.
& T. 447; Arch.Civ.PL 17; 7 Com.Dig. 659; Byrne v.
Boyle, 37 Pa. 260.
ESTUARY, is that part of the mouth or lower
course of a river flowing into the sea which is
subject to tide; especially, an enlargement of a
river channel toward its mouth in which the move-
ment of the tide Is very prominent. Alameda
County v. Garrison, 108 Cal.App. 122, 291 P. 464,
466.
ET. And. The introductory word of several Lat-
in and law French phrases formerly in common
use.
ET ADJOURNATUR. And it is adjourned.
A phrase used in the old reports, where the argument, of
a cause was adjourned to another day, or where a second
argument was had. 1 Keb. 692, 754, 773.
ET AL. An abbreviation for et alii, "and others."
Mitchell v. Mason, 90 Fla. 192, 105 So. 404, 405.
The singular is "et alius" (q. v.). It may also
mean "and another" in the singular. Babb v.
Dowdy, 229 Ky. 767, 17 S.W.2d 1014, 1016; Glen
Falls Indemnity Co. v. Manning, La.App., 168 So.
787, 788. ,
Where the words "et al." are used in a judgment against
defendants, the quoted words include all defendants. Wil-
liams v. Williams, 25 Tenn.App. 290, 156 S.W.2d 363, 369.
ET ALIT it CONTRA. And others on the other
side.
A phrase constantly used in the Year Books, in describ-
ing a joinder in issue. P. 1 Edw. II. Prist; et alii 6 con-
tra, et sic ad patriam: ready; and others, it contra, and
so to the country. T. 3 Edw. III. 4.
ET ALIUS. And another.
The abbreviation et al. (sometimes in the plural written
et als.) is often affixed to the name of the person first men-
tioned, where there are several plaintiffs, grantors, persons
addressed, etc. See In re McGovern's Estate, 77 Mont. 182,
250 P. 812, 815; Anderson v. Haas, 160 Ga. 420, 128 S.E.
178, 179; Conery v. Webb, 12 La.Ann. 282; Lyman v. Mil-
ton, 44 Cal. 630.
ET ALLOCATUR. And it is allowed.
ET CETERA (or ET C1ETERA). And others;
and other things; and others of like character;
and others of the like kind; and the rest; and so
on; and so forth. Muir v. Kay, 66 Utah, 550, 244
P. 901, 904; Osterberg v. Section 30 Development
Co., 160 Minn. 497, 200 N.W. 738, 739; State on Inf.
Haw v. Three States Lumber Co., 274 Mo. 361, 202
S.W. 1083, 1084; Wagner v. Brady, 130 Tenn. 554,
171 S.W. 1179; Fleck v. Harmstad, 304 Pa. 302,
155 A. 875, 877, 77 A.L.R. 874. In its abbreviated
form (etc.) this phrase is frequently affixed to one
of a series of articles or names to show that
others are intended to follow or understood to be
included. So, after reciting the initiatory words
of a set formula, or a clause already given in full,
etc. is added, as an abbreviation, for the sake of
convenience. And other things of like kind or
purpose as compared with those immediately
theretofore mentioned. Hisaw v. Ellison Ridge
Consolidated School Dist., 189 Miss. 664, 198 So.
557, 558.
In its abbreviated form (etc.) this phrase means and
other like purposes. Anderson & Kerr Drilling Co. v.
Bruhlme er, Tex.Civ.App., 115 S.W.2d 1212, 1214; other
things of like character. Lewis v. Ladner, 177 Miss. 473,
168 So. 431, 282; other things or the rest; and so forth;
used to indicate others of a kind specified, Potter v. Bor-
ough of Metuchen, 108 N.J.L. 447, 155 A. 369, 370; others
of the like kind; and the rest; and so on; and so forth,
Forman v. Columbia Theater Co., 20 Wash.2d 685, 148 P.2d
951, 953. In such form it Is frequently affixed to one of
652

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ETHICS
a series of articles or names to show that others are in-
tended to follow or understood to be included so, after re-
citing the initiatory words of a set formula, or a clause
already given in full, etc. is added, as an abbreviation, for
the sake of convenience. See Lathers v. Keogh, 39 Hun,
N.Y., 579; Morton v. Young, 173 Ky. 301, 190 S.W. 1090;
Becker v. Hopper, 22 Wyo. 237, 138 P. 179, 180, Ann.Cas.
1916D, 1041.
ET DE CEO SE METTENT EN LE PAYS. L. Fr.
And of this they put themselves upon the country.
ET DE HOC PONIT SE SUPER PATRIAM. And
of this he puts himself upon the country. The
formal conclusion of a common-law plea in bar by
way of traverse. See 3 Bl.Comm. 313. The liter-
al translation is retained in the modern form.
ET EI LEGITUR IN ILEC VERBA. L. Lat. And
it is read to him in these words. Words formerly
used in entering the prayer of oyer on record.
ET HABEAS IBI TUNC HOC BREVE. And have
you then there this writ. The formal words di-
recting the return of a writ. The literal transla-
tion is retained in the modern form of a consider-
able number of writs.
ET HABUIT. And he had it.
A common phrase in the Year Books, expressive of the
allowance of an application or demand by a party. Parn.
demands la view. Et habuit, etc. M. 6 Edw. III. 49.
ET HOC PARATUS EST VERIFICARE. And
this he is prepared to verify.
The Latin form of concluding a plea in confession and
avoidance; that is, where the defendant has confessed all
that the plaintiff has set forth, and has pleaded new matter
in avoidance. 1 Salk. 2.
These words were used, when the pleadings were in
Latin, at the conclusion of any pleading which contained
new affirmative matter. They expressed the willingness or
readiness of the party so pleading to establish by proof the
matter alleged in his pleading. A pleading which con-
cluded in that manner was technically said to "conclude
with a verification," in contradistinction to a pleading
which simply denied matter alleged by the opposite party,
and which for that reason was said to "conclude to the
country," because the party merely put himself upon the
country, or left the matter to the jury. Brown.
ET HOC PETIT QUOD INQUIRATUR PER PA-
TRIAM. And this he prays may be inquired of
by the country. The conclusion of a plaintiff's
pleading, tendering an issue to the country. 1
Salk. 6. Literally translated in the modern forms.
ET INDE PETIT JUDICIUM. And thereupon [or
thereof] he prays judgment. A clause at the end
of pleadings, praying the judgment of the court
in favor of the party pleading. It occurs as early
as the time of Bracton, and is literally translated
in the modern forms. Bract. fol. 57b; Crabb, Eng.
Law, 217.
ET INDE PRODUCIT SECTAM. And thereupon
he brings suit. The Latin conclusion of a dec-
laration, except against attorneys and other of-
ficers of the court. 3 Bl.Comm. 295.
ET MODO AD HUNG DIEM. Lat. And now at
this day. This phrase was the formal beginning
of an entry of appearance or of a continuance.
The equivalent English words are still used in
this connection.
ET NON. Lat. And not. A technical phrase in
pleading, which introduces the negative averments
of a special traverse. It has the same force and
effect as the words absque hoc, "without this,"
and is occasionally used instead of the latter.
ET SEQ. An abbreviation for et sequentes (mas-
culine and feminine plural) or et sequentia (neu-
ter), "and the following." Thus a reference to
"p. 1, et seq." means "page first and the follow-
ing pages." Also abbreviated "et sqq.," which is
preferred by some authorities for a reference to
more than one following page.
ET SIC. And so. In the Latin forms of plead-
ing these were the introductory words of a spe-
cial conclusion to a plea in bar, the object being to
render it positive and not argumentative; as et
sic nil debet.
ET SIC AD JUDICIUM. And so to judgment.
Yearb. T. 1 Edw. II. 10.
ET SIC AD PATRIAM. And so to the country.
A phrase used in the Year Books, to record an is-
sue to the country.
ET SIC FECIT. Arid he did so. Yearb. P. 9 Hen.
VI. 17.
ET SIC PENDET. And so it hangs. A term us-
ed in the old reports to signify that a point was
left undetermined. T. Raym. 168.
ET SIC ULTERIUS. And so on; and so further;
and so forth. Fleta, lib. 2, c. 50, § 27.
ET UX. An abbreviation for et uxor,—"and
wife." Where a grantor's wife joins him in the
conveyance, it is sometimes expressed (in ab-
stracts, etc.) to be by "A. B. et ux."
ETCHING. Strictly, the art of using acid to bite
a design on metal; in a broader sense, the word
includes the sand-blast process, which uses no
acid, but relies on abrasion by sand, emery, or a
like substance. Graphic Arts Co. v. Photo-Chrom-
otype Engraving Co., C.C.A.Pa., 231 F. 146, 148.
ETERNAL SECURITY. The doctrine of "etern-
al security" means that once one becomes a Chris-
tian or has been "regenerated" his future conduct,
no matter what it may be, will not jeopardize his
salvation. Ashman v. Studebaker, 115 Ind.App.
73, 56 N.E.2d 674, 678.
ETHICAL. "Of or relating to moral action, mo-
tive or character; as, ethical emotion; also, treat-
ing ,,of moral feelings, duties or conduct; con-
taining precepts of morality; moral"; and sec-
ondarily as "professionally right or befitting; con-
forming to professional standards of conduct."
Kraushaar v. La Vin, 181 Misc. 508, 42 N.Y.S.2d
857, 859.
ETHICS. What is generally called the "ethics"
of the profession is but consensus of expert opin-
ion as to necessity of professional standards.
Cherry v. Board of Regents of University of State
of New York, 289 N.Y. 148, 44 N.E.2d 405, 412.
653

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ETHICS
ETHICS, LEGAL. See Legal Ethics.
ETIQUETTE OF THE PROFESSION. The code
of honor agreed on by mutual understanding and
tacitly accepted by members of the legal profes-
sion, especially by the bar. Wharton.
EUM QUI NOCENTEM INFAMAT, NON EST
.IEQUUM ET BONUM OB EAM REM CONDEM-
NARI; DELICTA ENIM NOCENTIUM NOTA
ESSE OPORTET ET EXPEDIT. It is not just
and proper that he who speaks ill of a bad man
should be condemned on that account; for it is
fitting and expedient that the crimes of bad men
should be known. Dig. 47, 10, 17; 1 Bl.Comm. 125.
EUNDO, MORANDO, ET REDEUNDO. Lat.
Going, remaining, and returning.
A person who is privileged from arrest (as a witness,
legislator, etc.) is generally so privileged eundo, morando,at redeundo; that is, on his way to the place where his
duties are to be performed, while he remains there, and
on his return journey.
EUNDO ET REDEUNDO. Lat. In going and re-
turning. Applied to vessels. 3 C.Rob.Adm. 141.
EUNOMY. Equal laws and a well-adjusted con-
stitution of government.
EUNUCH. A male of the human species who has
been castrated. See Domat. liv. prel. tit. 2, § 1,
n. 10. Eckert v. Van Pelt, 69 Kan. 357, 76 P. 909,
66 L.R.A. 266.
EUTHANASIA. The act or practice of painlessly
putting to death persons suffering from incurable
and distressing disease. An easy or agreeable
death.
EVASIO. Lat. In old practice. An escape from
prison or custody. Reg. Orig. 312.
EVASION. An act of eluding or avoiding, or
avoidance by artifice. City of Wink v. Griffith
Amusement Co., 129 Tex. 40, 100 S.W.2d 695, 701.
A subtle endeavoring to set aside truth or to es-
cape the punishment of the law.
Thus, If one person says to another that he will not
strike him, but will give him a pot of ale to strike first,
and, accordingly, the latter strikes, the returning the blow
is punishable; and, if the person first striking is killed, it
it is murder, for no man shall evade the justice of the law
by such a pretense. 1 Hawk.P.C. 81; Bac.Abr. Fraud, A.
So no one may plead Ignorance of the law to evade it.
Jacob.
Artifice or cunning is implicit in the term as applied to
contest between citizen and government over taxation.
Clapp v. Heiner, C.C.A.Pa., 51 F.2d 224, 225.
In a general way the words "suppression," "evasion,"
and "concealment" mean to avoid by some device or strat-
egy or the concealment or intentional withholding some
fact which ought in good faith to be communicated. Mur-
ray v. Brotherhood of American Yeomen, 180 Iowa, 626, 163
N.W. 421, 428.
When an act is condemned as an "evasion," what is
meant is that it is on the wrong side of the line indicated
by the policy if not by the mere letter of the law. Wynd-
moor Building & Loan Ass'n v. Power Building & Loan
Ass'n, Pa.Super., 121 Pa.Super. 236, 183 A. 367, 369; Bul-
len v. State of Wisconsin, Wis., 240 U.S. 625, 36 S.Ct. 473,
474, 60 L. Ed. 830.
EVASIVE. Tending or seeking to evade; elu-
sive; shifting; as an evasive argument or plea.
Deprivation of lessee of free enjoyment of premises, and,
if it does so, deprivation need not be permanent. Title &
Trust Co. v. Durkheimer Inv. Co., 155 Or. 427, 63 P.2d 909.
EVASIVE ANSWER. One which consists in re-
fusing either to admit or to deny a matter as to
which the defendant is necessarily presumed to
have knowledge.
Hence, where a defendant is alleged to be a corporation,
an answer declining, for want of sufficient information,
either to admit or to deny such an averment would be
evasive. Raleigh & Gaston Ry. Co. v. Pullman Co., 122 Ga.
700, 50 S.E. 1008. But an answer distinctly denying an
allegation that the defendant is a corporation, although it
may be false, is not evasive. Gaynor v. Travelers' Ins. Co.,
12 Ga.App. 601, 77 S.E. 1072, 1073.
EVE. The period immediately preceding an im-
portant event. Jarvis v. Jarvis, 286 Ill. 478, 122
N.E. 121, 123.
EVEN. Although; if. May v. Missouri Pac. R.
Co., 143 Ark. 75, 219 S.W. 756, 757.
EVENING. The closing part of the day and be-
ginning of the night; in a strict sense, from sun-
set till dark; in common speech, the latter part
of the day and the earlier part of the night, until
bedtime. Golay v. Stoddard, 60 Idaho 168, 89 P.
2d 1002, 1005. The period between sunset or the
evening meal and ordinary bedtime. City of Al-
bany v. Black, 216 Ala. 4, 112 So. 433; State v.
Foley, 89 Vt. 193, 94 A. 841, 842.
EVENINGS. In old English law. The delivery at
even or night of a certain portion of grass, or corn,
etc., to a customary tenant, who performs the
service of cutting, mowing, or reaping for his lord,
given him as a gratuity or encouragement, Ken-
, nett, Gloss.
EVENT. The consequence of anything, the issue,
conclusion, end; that in which an action, opera-
tion, or series of operations, terminates. Geis v.
Geis, 125 Neb. 394, 250 N.W. 252; Brewer v. Ash
Grove Lime & Portland Cement Co., 223 Mo.App.
983, 25 S.W.2d 1086, 1088.
Anything that -happens or comes to pass as distinguished
from a thing that exists, Quinn v. Streeter, Sup., 175 Misc.
932, 24 N.Y.S.2d 916, 920. That which comes, arrives, or
happens, especially an incident which is important or
remarkable, Schulz v. Great Atlantic & Pacific Tea Co., 331
Mo. 616, 56 S.W.2d 126; the consequence, outcome, sequel,
or end effected by prior operation of medium or contribut-
ing force or agency referred to as the "means" or "cause",
Toups v. Penn Mut. Life Ins. Co., D.C.La., 49 F.Supp. 348,
349; the culmination or end that means may have pro-
duced or brought about. Whatcott v. Continental Casualty
Co., 85 Utah 406, 39 P.2d 733, 736; Sentinel Life Ins. Co.
v. Blackmer, C.C.A.Colo., 77 F.2d 347, 350.
An event may be injury itself rather than means pro-
ducing it. Juhl v. Hussman-Ligonier Co., Mo.App., 146
S.W.2d 106, 108. An event need not necessarily be a cause,
but may be and generally is a result. Guillod v. Kansas
City Power & Light Co., 224 Mo.App. 382, 18 S.W.2d 97,
100.
The word includes all of steps or connected Incidents
from first cause to final result, and may include both cause
and effect. Rinehart v. F. M. Stamper Co., 227 Mo.App.
653, 55 S.W.2d 729. The word is broad enough to include
an omission. Texas Cities Gas Co. v. Dickens, Tex.Civ.
App., 156 S.W.2d 1010, 1016.
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EVICT
The "making of a contract" is an "event". Brown v.
Oneida Knitting Mills, 226 Wis. 662, 277 N.W. 653, 655.
In reference to judicial and quasi judicial pro-
ceedings, "event" means the conclusion, end, or fin-
al outcome or result of a litigation; as, in the
phrase "abide the event," speaking of costs or of
an agreement that one suit shall be governed by
the determination in another. Reeves v. McGreg-
or, 9 Adol. & El. 576; Benjamin v. Ver Nooy, 168
N.Y. 578, 61 N.E. 971; Gordon v. Krellman, 217
App.Div. 477, 216 N.Y.S. 778, 779.
Where costs are awarded to an appellant to abide the
event, the "event" which determines whether the appel-
lant is entitled to an award of costs of appeal is his suc-
cess in obtaining a judgment on the merits on the retrial.
Commercial Sealeaf Co.. v. Purepac Corporation, 169 Misc.
133, 7 N.Y.S.2d 146, 148.
EVENT OF ANY SUIT. Means legal event of
any suit. Drainage Dist. No. 1 of Lincoln County
v. Kirkpatrick-Pettis Co., 140 Neb. 530, 300 N.W.
582, 587; Geis v. Geis, 125 Neb. 394, 250 N.W. 252.
EVENTUS EST QUI EX CAUSA SEQUITUR; ET
DICITUR EVENTUS QUIA EX CAUSIS EVENIT.
9 Coke, 81. An event is that which follows from
the cause, and is called an "event" because it even-
tuates from causes.
EVENTUS VARIOS RES NOVA SEMPER HAB-
ET. Co. Litt. 379. A new matter always pro-
duces various events.
EVERY. Each one of all; all the separate indi-
viduals who constitute the whole, regarded one by
one. Smith v. Hall, 217 Ky. 615, 290 S.W. 480,
482; Salo v. Pacific Coast Casualty Co., 95 Wash.
109, 163 P. 384, 385, L.R.A.1917D, 613. The term
is sometimes equivalent to "all"; Erskine v. Pyle,
51 S.D. 262, 213 N.W. 500, 502; and sometimes to
"each"; Miller v. Rodd, 285 Pa. 16, 131 A. 482, 483.
EVERY CONTRACT OF HIRING, VERBAL,
WRITTEN OR IMPLIED. Means wherever and
by whomsoever made. De Gray v. Miller Bros.
Const. Co., 106 Vt. 259, 173 A. 556, 562.
EVERY CORPORATION. Statute providing that
books of "every corporation" shall be open to in-
spection of shareholders, held applicable to foreign
corporation doing business within state. Get-
ridge v. State Capital Co., 129 Cal.App. 86, 18 P.
2d 375, 376.
EVERY MAN MUST BE TAKEN TO CONTEM-
PLATE THE PROBABLE CONSEQUENCES OF
THE ACT HE DOES. Lord Ellenborough, 9 East,
277. A fundamental maxim in the law of evi-
dence. Best, Pres. § 116; 1 Phil.Ev. 444. (Every
man is presumed to intend the natural and prob-
able consequences of his own voluntary acts. 1
Greenl.Evid. § 18; 9 B. & C. 643; 3 Maule & S.
11; Webb, Poll.Torts 35.)
EVERY OTHER THING. This phrase, as used in
requiring employer to furnish safe place of em-
ployment and to do "every other thing" reason-
ably necessary to protect employees, relates to
things of same kind that employer must neces-
sarily do in making place safe. Northwestern
Casualty & Surety Co. v. Industrial Commission,
194 Wis. 337, 216 N.W. 485, 486.
EVERY OWNER. As used in law making "every
owner" of a motor vehicle liable for personal in-
juries in certain circumstances include a munici-
pality. Kelly v. City of Niagara Falls, 131 Misc.
934, 229 N.Y.S. 328, 331.
EVERY PART. As used in charge on caveat to
probate of will, the signature is included in "every
part" of will. Dulin v. Dulin, 197 N.C. 215, 148
S.E. 175, 178.
EVERY PERSON. Statute making it misdemean-
or for "every person" to sell appointments to pub-
lic office applies to all per dvms whether public of-
ficials or not. Smalley v. State, 75 Okl.Cr. 10, 127
P.2d 869, 870.
Statute making it duty of "every person" to pay taxes
without demand includes receivers. Hood v. Bond, 42 N.M.
295, 77 P.2d 180, 188.
Statute providing for arrest of every person in city
engaged in violating law or ordinance includes female
offenders. City of Janesville v. Tweedell, 217 Wis. 395, 258
N.W. 437.
Where a law specifically excludes any person engaged in
certain transportation from definition of "contract hauler"
and defines "for hire carrier" to include "every person,"
except "certified operator" and "contract hauler," "every
person" includes those engaged in such transportation.
State ex rel. Scott v. Superior Court for Thurston County,
173 Wash. 547, 24 P.2d 87.
EVERY PERSON, FIRM OR CORPORATION.
City ordinance providing "every person, firm or
corporation" should pay gasoline tax held to in-
clude receivers. Kansas City, Mo. v. Johnson, C.
C.A.Mo., 70 F.2d 360, 361.
EVERY RESIDENT OF THIS STATE, As used
in constitutional provision partially exempting
from taxation those honorably discharged from
military service applies to every person who ful-
fills requirements of provision regardless of sex.
Lockhart v. Wolden, 17 Ca1.2d 628, 111 P.2d 319,
320.
EVERY RIGHT, TITLE, INTEREST OR THING.
Tender of "every right, title, interest or thing"
received is tender of everything received in action
to rescind land contract. Mathews v. Tannen-
baum, 139 Cal.App. 500, 34 P.2d 233, 235.
EVERY STOCK CORPORATION. Statute mak-
ing stockholders of "every stock corporation" li-
able for employees' services refers to domestic
stock corporations only. Bogardus v. Fitzpatrick,
139 Misc. 533, 247 N.Y.S. 692, 693.
EVERY SUCH PROVISION. In statute provid-
ing that devise for jointure of wife shall bar her
dower and that every such provision by will shall
be taken as intended in lieu of dower, "every
such provision" means devise for jointure of wife.
Shackelford v. Shackelford, 181 Va. 869, 27 S.E.2d
354, 359.
EVES-DROPPERS. See Eaves-Droppers.
EVICT. Civil law. To recover anything from a
person by virtue of the judgment of a court or
judicial sentence.
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EVICT
Common law. To dispossess, or turn out of
the possession of lands by process of law. Also
to recover land by judgment at law. "If the land
is evicted, no rent shall be paid." 10 Coke, 128a.
The term "evicted," means deprivation by one of office,
or of salary attached thereto, to which another is, or may
be, entitled. The term "evicted" properly applies only to
realty and has been used to describe inability to get prom-
ised possession, and also, as deprivation of the possession
of lands and tenements. Hawkins v. Voisine, 292 Mich.
357, 290 N.W. 827, 828.
To "evict" a tenant is to deprive him of possession of
the leased premises or disturb him in their beneficial
enjoyment so as to cause tenant to abandon the premises.
Estes v. Gatliff, 291 Ky. 93, 163 S.W.2d 273, 276.
EVICTION. Dispossession by process of law;
the act of depriving a person of the possession of
lands which he has held, in pursuance of the judg-
ment of a court. Reasoner v. Edmundson, 5 Ind.
395; Cowdrey v. Coit, 44 N.Y. 392, 4 Am.Rep. 690;
Home Life Ins. Co. v. Sherman, 46 N.Y. 372.
Originally and technically, the dispossession
must be by judgment of law; if otherwise, it was
an ouster; Webb v. Alexander, 7 Wend.N.Y. 285;
but the necessity of legal process was long ago
abandoned in England; 4 Term 617; and in this
country also it is settled that there . need not be
legal process; Green v. Irving, 54 Miss. 450, 28
Am.Rep. 360; Thomas v. Becker, 190 Iowa 237,
180 N.W. 285, 286. Any actual entry and dispos-
session, adversely and lawfully made under para-
mount title, will be an eviction. Rawle, Co y . §
133; Gallison v. Downing, 244 Mass. 33, 138 N.E.
315, 318.
In a more popular sense, the term denotes turn-
ing a tenant of land out of possession, either by
re-entry or by legal proceedings, such as an ac-
tion of ejectment. Sweet.
By a loose extension, the term is sometimes ap-
plied to the ousting of a person from the posses-
sion of chattels; but, properly, it applies only to
realty.
A wrongful act upon the part of the landlord is involved
in eviction. Cerruti v. Burdick, 130 Conn. 284, 33 A.2d 333,
335.
An entry under paramount title, so as to interfere with
the rights of the grantee, is implied in eviction. The
object of the party making the entry is immaterial,
whether it be to take all or a part of the land itself or
merely an incorporeal right. Phrases equivalent in mean-
ing are "ouster by paramount title," "entry and disturb-
ance," "possession under an elder title," and the like.
Mitchell v. Warner, 5 Conn. 497.
An "eviction by title paramount" arises when a third
person establishes title to demised premises superior to
that of landlord, and by virtue of that title gains posses-
sion. John R. Thompson Co. v. Northwestern Mut. Life
Ins. Co., D.C.Ohio, 31 F.Supp. 399, 400.
Any act of landlord which deprives tenant of beneficial
enjoyment of premises. Adler v. Sklaroff, 154 Pa.Super.
444, 36 A.2d 231,,233.
Any wrong of lessor which results in substantial inter-
ference with lessee's rights. Harrison v. Fregger, 88 Mont.
448, 294 P. 372, 373.
Deprivation of lessee of possession of premises or dis-
turbance of lessee in beneficial enjoyment so as to cause
tenant to abandon the premises. Estes v. Gatliff, 291 Ky.
93, 163 S.W.2d 273, 276.
Dispossession of tenant by landlord. Lesher v. Louis-
ville Gas & Electric Co., D.C.Ky., 49 F.Supp. 88, 89, 90.
Dispossession under judgment, though it need not be by
force of process under judgment. Edgemont Coal Co. v.
Asher, D.C.Ky., 298 F. 1000; Walker v. Robinson, 163 Ky.
618, 174 S. W. 503, 505.
Entry on and taking possession of any part of demised
premises by landlord during continuance of lease and
exclusion of tenant. Landon v. Hill, 136 Cal.App. 560, 29P.2d 281, 282.
Formerly the word was used to denote an expulsion by
the assertion of a paramount title or by process of law.
Port Utilities Commission of Charleston v. Marine Oil Co.,
173 S.C. 345, 175 S.E. 818.
Intentional exclusion of lessee from some part of leased
premises. Gorfinkle v. Abrams, 263 Mass. 569, 161 N.E.795.
Interference with tenant's beneficial enjoyment of prem-
ises. Peale v. Tvete, 172 Wash. 296, 20 P.2d 12, 13; Kahn
v. Bancamerica-Blair Corporation, 327 Pa. 209, 193 A. 905,
906.
Manual or physical explusion or exclusion from demised
premises, or any part thereof is unnecessary to constitute
eviction. Kennerly v. B. F. Avery & Sons Plow Co., Tex.
Civ.App., 300 S.W. 159, 161.
Originally an eviction was understood to be a disposses-
sion of the tenant by some act of his landlord or the fail-
ure of his title. Of later years it has come to include any
wrongful act of the landlord which may result in an inter-
ference with the tenant's possession in whole or in part.
The act may be one of omission as well as one of commis-
sion. Holden v. Tidwell, 37 Old. 553, 133 P. 54, 56, 49
L.R.A.,N.S., 369.
Something of a grave and permanent character by land-
lord or those acting under his authority with intent and
effect to deprive tenant of use, occupation, and enjoyment
of premises or part thereof, or the establishment or asser-
tion against tenant of a title paramount to the landlord.
Blomberg v. Evans, 194 N.C. 113, 138 S.E. 593, 594, 53
A.L.R. 686; Aguglia v. Cavicchia, 229 Mass. 263, 118 N.E.
283, 284, L.R.A.1918C, 59; Waldorf System v. Dawson, 49
R.I. 57, 139 A. 789, 790; Automobile Supply Co. v. Scene-in-
Action Corporation, 340 Ill. 196, 172 N.E. 35, 37, 69 A.L.R.
1085.
When it would be useless for covenantee to attempt to
maintain his title, as where holder of superior title has
taken actual possession or threatens suit, an eviction occurs
in legal contemplation. Love v. Minerva Petroleum Corpo-
ration, Tex.Civ.App., 105 S.W.2d 892, 894.
When tenant's possession or enjoyment of premises is
interfered with by a third person not acting by landlord's
authority, or consent, there is no "eviction". Smith v.
Nortz Lumber Co., N.D., 72 N.D. 353, 7 N.W.2d 435, 437;
Prospect Point Land Improvement Co. v. Jackson, 109
N.J.L. 385, 162 A. 576, 577.
Civil Law
The abandonment which one is obliged to make of a
thing, in pursuance of a sentence by which he is con-
demned to do so. Poth.Contr.Sale, pt. 2, c. 1, § 2, art. 1,
no. 83. The abandonment which a buyer is compelled to
make of a thing purchased, in pursuance of a judicial sen-
tence.
Eviction is the loss suffered by the buyer of the totality
of the thing sold, or of a part thereof, occasioned by the
right or claims of a third person. Civil Code La. art. 2500.
For "Actual Eviction," "Constructive Eviction,"
"Partial Eviction," and "Total Eviction," see those
titles.
EVIDENCE. Any species of proof, or probative
matter, legally presented at the trial of an issue,
by the act of the parties and through the medium
of witnesses, records, documents, concrete ob-
jects, etc., for the purpose of inducing belief in
the minds of the court or jury as to their conten-
tion. Hotchkiss v. Newton, 10 Ga. 567; O'Brien v.
State, 69 Neb. 691, 96 N.W. 650; Hubbell v. U. S.,
15 Ct.C1. 606; McWilliams v. Rodgers, 56 Ala. 93.
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EVIDENCE
All circumstances in case, Including opportunity of wit-
nesse§ for observation, interest in case, demeanor on stand,
and other circumstances. Auschwitz v. Wabash Ry. Co.,
346 Ill. 190, 178 N.E. 403, 410; all kinds of proof, Kneezle
v. Scott County Milling Co., Mo.App., 113 S.W.2d 817, 822.
All the means by which any alleged matter of fact, the
truth of which is submitted to investigation, is established
or disproved. 1 Greenl.Ev. c. 1, § 1; Bednarik v. Bed-
narik, 18 N.J.Misc. 633, 16 A.2d 80, 89; Latikos v. State,
17 Ala.App. 592, 88 So. 45, 47.
Any matter of fact, the effect, tendency, or design of
which is to produce in the mind a persuasion of the exist-
ence or nonexistence of some matter of fact. State v.
Heavener, 146 S.C. 138, 143 S.E. 674, 676.
Anything perceptible to the five senses constituting "evi-
dence," when submitted to court or jury, if competent. In
re Fisher's Estate, 47 Idaho 668, 279 P. 291, 293.
As a part of procedure "evidence" signifies those rules
of law whereby it is determined what testimony should be
admitted and what should be rejected in each case, and
what is the weight to be given to the testimony admitted.
Kellman v. Stoltz, D.C.Iowa, 1 F.R.D. 726, 728.
Competent evidence is meant by statute requiring trial
court to hear evidence on controverted applications for
change of venue. State ex rel. Kansas City Public Service
Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697, 703.
Documents and other exhibits which may properly be
submitted to jury are evidence. Madison v. State, 138 Fla.
467, 189 So. 832, 835.
Evidence legally and properly introduced is meant by
"evidence". Young v. Industrial Accident Commission, 38
Cal.App.2d 250, 100 P.2d 1062, 1066.
Exhibits are evidence, Worland v. McGill, 26 Ohio App.
442, 160 N.E. 478, 480.
Facts admitted upon trial of cause become "evidence".
American Extension School of Law v. Ragland, 232 Mo.App.
763, 112 S.W.2d 110, 113.
Facts judicially noticed are equivalent to "evidence".
Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784, 792.
Inference arising under doctrine of "res ipsa loquitur"
is "evidence". Druzanich v. Criley, 19 Ca1.2d 439, 122
P.2d 53, 56.
Medical testimony is "evidence". Farmer Motor Co. v.
Smith, 253 Ky. 151, 69 S.W.2d 1.
Opinion of expert is evidence which is to be weighed and
considered like any other evidence. Southern California
Edison Co. v. Gemmill, 30 Cal.App.2d 23, 85 P.2d 500, 502.
Reasonable inferences drawn from affirmative facts
proven are "evidence". Hepp v. Quickel Auto & Supply
Co., 37 N.M. 525, 25 P.2d 197.
Something of substance and relevant coAsequence. Broad-
way & Fourth Ave. Realty Co. v. Metcalfe, 230 Ky. 800, 20
S.W.2d 988, 990.
Substantial evidence is meant by word "evidence", Indi-
anapolis Power & Light Co. v. National Labor Relations
Board, C.C.A.7, 122 F.2d 757, 761; Gelb v. Federal Trade
Commission, C.C.A.2, 144 F.2d 580, 582.
Such kinds of proof as may be legally presented ,at a
trial, by the act of the parties, and through the aid of such
concrete facts as witnesses, records or other documents.
That which demonstrates, makes clear, or ascertains the
truth of the very fact or point in issue, either on the one
side or on the other. Leonard v. State, 100 Ohio St. 456,
127 N.E. 464, 466; Lynch v. Rosenberger, 121 Kan. 601, 249
P. 682, 683, 60 A.L.R. 376.
• That which furnishes or tends to furnish proof. It is
that which brings to the mind a just conviction of the truth
or falsehood of any substantive proposition which is
asserted or denied. Wong Yee Toon v. Stump, C.C.A.Md.,
233 F. 194, 198; Ex parte Lam Pui, D.C.N.C., 217 F. 456,
467.
That which is legally submitted to a jury, to enable
them to decide upon the questions in dispute or issue, as
pointed out by the p:eadings, and distinguished from all
comment and argument. 1 Starkie, Ev. pt. 1, § 3.
That which tends to procluce conviction in the mind as
to existence of a fact. Magazine v. Shull, 116 Ind.App. 79,
60 N.E.2d 611, 613.
Black's Law Dictionary Revised 4th Ed.-42
That which tends to prove or disprove any matter in
question, or to influence the belief respecting it. Belief is
produced by the consideration of something presented to
the mind. The matter thus presented, in whatever shape
it may come, and through whatever material organ it is
derived, is evidence. Parker, Lectures on Medical Juris-
prudence, in Dartmouth College.
The means sanctioned by law of ascertaining in a judi-
cial proceeding the truth respecting a question of fact.
Cal. Code Civ.Proc. § 1823.
The word signifies, in its original sense, the state of
being evident, i. e., plain, apparent or notorious. But by
an almost peculiar inflection of our language, it is applied
to that which tends to render evident or to generate proof.
Best, Ev. §§ 10, 11; Dupont v. Pelletier, 120 Me. 114, 113
A. 11, 12.
What transpires in jury's presence and what is neces-
sarily obvious to them is "evidence" if relevant and un-
prejudicial. Williamson v. Derry Electric Co., 89 N.H.
216, 196 A. 265 266.
Whatever is received to establish or disprove an alleged
fact. In re Seigle's Estate, 26 N.Y.S.2d 410, 413, 176
Misc. 15.
Whatever may be given to the jury as tending to prove a
case; includes testimony of witnesses, documents, admis-
sions of parties, etc. Harris v. Tomlinson, 130 Ind. 426, 30
N.E. 214 ; Carroll v. Bancker, 43 La. Ann. 1078, 10 So. 192.
Whatever may properly be submitted to a court or jury
to elucidate an issue or prove a case. Superior Meat Prod-
ucts v. Holloway, 113 Ind.App. 320, 48 N.E.2d 83, 86.
Within prohibition against requiring an accused to give
evidence against himself, "evidence" means evidence by
accused out of court as well as in court. State v. Bates,
187 Miss. 172, 192 So. 832, 835.
Evidence may be false and of no probative value and so
it differs from proof. State v. Howard, 162 La. 719, 111 So.
72, 75.
To "evidence" means to attest, prove, show clearly, make
plain. Indiana Harbor Belt R. Co. v. Jacob Stern & Sons,
D.C.Ill., 37 F.Supp. 690, 691.
For Presumption as evidence, see Presumption;
Proof and evidence distinguished, see Proof; Tes-
timony as synonymous or distinguishable, see
Testimony; View as evidence, see View.
For "Adminicular Evidence", "Aliunde", "Best
Evidence", "Beyond Reasonable Doubt", "Circum-
stantial Evidence", "Competent Evidence", "Cor-
roborating Evidence", "Cumulative Evidence",
"Demonstrative Evidence", "Direct Evidence",
"Documentary Evidence," "Expert Evidence", "Ex-
trajudicial Evidence", "Extraneous Evidence,"
"Extrinsic Evidence", "Fact", "Fair Preponder-
ance", "Hearsay", "Incompetent Evidence", "In-
culpatory", "Indirect Evidence", "Indispensable
Evidence", "Inference", "Intrinsic Evidence",
"Legal Evidence", "Material Evidence", "Mathe-
matical Evidence", "Moral Evidence," "Newly-Dis-
covered Evidence", "Opinion Evidence", "Oral Evi-
dence", "Original Evidence", "Parol Evidence",
"Partial Evidence," "Preponderance," "Presump-
tive Evidence," "Prima Facie Evidence," "Primary
Evidence," "Probable Evidence," "Probative,"
"Probative Facts," "Proof," "Proper Evidence,"
"Real Evidence," "Rebutting Evidence," "Relevan-
cy," "Satisfactory Evidence," "Scintilla of Evi-
dence," "Second-Hand Evidence," "Secondary Evi-
dence," "State's Evidence," "Substantive Evi-
dence," "Substitutionary Evidence," "Traditionary
Evidence," and "Weight of Evidence," see those
titles.
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EVIDENCE BY INSPECTION
EVIDENCE BY INSPECTION is such evidence
as is addressed directly to the senses without in-
tervention of testimony. Kabase v..State, 31 Ala.
App. 77, 12 So.2d 758, 764.
EVIDENCE COMPLETED. Means that both
sides have offered testimony and rested, or that
plaintiff has rested and defendant has made mo-
tion for finding on plaintiff's case .and stands on
motion and declines to offer evidence. Merriam
v. Sugrue, D.C.Mun.App., 41 A.2d 166, 167.
EVIDENCE; LAW OF. The aggregate of rules
and principles regulating the admissibility, rele-
vancy, and weight and sufficiency of evidence in
legal proceedings. See Ballinger's Ann.Codes &
St.Or.1901, § 678, Code 1930, § 9-102.
EVIDENCE OF DEBT. A term applied to writ-
ten instruments or securities for the payment of
money, importing on their face the existence of
a debt. 1 Rev.St.N.Y. p. 599, § 55.
EVIDENCE OF INSURABILITY SATISFAC-
TORY TO COMPANY. Means evidence which
would satisfy a reasonable person experienced
in the life insurance business that insured was in
an insurable condition. Bowie v. Bankers Life
Co., C.C.A.Colo., 105 F.2d 806, 808.
EVIDENCE OF TITLE. A deed or other docu-
ment establishing the title to property, especial-
ly real estate.
EVIDENCE PROPER is something capable of
being weighed in scales of reason and compared
and estimated with other matter of the probative
sort. Neely v. Provident Life & Accident Ins. Co.
of Chattanooga, Tenn., 322 Pa. 417, 185 A. 784, 788.
EVIDENCE REASONABLY TENDING TO SUP-
PORT VERDICT. Means evidence that is com-
petent, relevant, and material, and which to ra-
tional and impartial mind naturally leads, or
involuntarily tends to lead, to conclusion for
which there is valid, just, and substantial reason.
Kelly v. Oliver Farm Equipment Sales Co., 169
Okl. 269, 36 P.2d 888, 891,
EVIDENCE SUFFICIENT IN LAW. Substantial
evidence. Almon v. Morgan County, 245 Ala. 241,
16 So.2d 511, 516.
EVIDENCE TO SUPPORT FINDINGS. In action
to review an order of the Unemployment Com-
pensation Commission "evidence" to support find-
ings meant substantial evidence or such relevant
evidence as a reasonable mind might accept as
adequate to support a conclusion and enough to
justify, if the trial were to a jury, a refusal to di-
rect a verdict when the conclusion sought to be
drawn from it is one of fact for jury. Jordan v.
Craighead, 114 Mont. 337, 136 P.2d 526, 528.
EVIDENCE TO SUPPORT THE VERDICT.
Means some legal evidence tending to prove every
material fact in issue as to which the party in
whose favor the verdict was rendered had the
burden of proof. Nicolai-Neppach Co. v. Smith,
154 Or. 450, 58 P.2d 1016, 1024, 107 A.L.R. 1124.
EVIDENT. Clear to the understanding and sat-
isfactory to the judgment; manifest; plain; ob-
vious; conclusive. Russell v. State, 71 Fla. 236,
71 So. 27, 28. Noticeable; apparent to observa-
tion. Hamill v. Joseph Schlitz Brewing Co., 165
Iowa 266, 143 N.W. 99, 107. That is "evident"
that suggests more than a mental process, but no
difficulty in seeing that the thing is true. Brem-
ner v. Marc Eidlitz & Son, 118 Conn. 666, 174 A.
172, 174.
A constitutional provision forbidding bail in capital cases
when the proof is "evident," means that, if the evidence is
such as to lead a dispassionate mind to the conclusion that
the accused is guilty, and that if the law is properly admin-
istered a conviction would be had of a capital offense, bail
should be denied. Ex parte Vermillion, 102 Tex.Cr.R. 590,
280 S.W. 771; Ex parte Bates, 90 Tex.Cr.R. 406, 235 S.W.
879, 880; Ex parte Dumas, 110 Tex.Cr.R. 1, 7 S.W.2d 90, 9L
Under constitutional provision that all prisoners shall be
bailable unless for capital offenses when the proof is evi-
dent, the word "evident" means that the accused, with a
cool and deliberate mind and formed design, did mali-
ciously kill another, and that a dispassionate jury would,
not only convict him, but would also assess the death pen-
alty. Ex parte Redding, 147 Tex.Cr.R. 434, 180 S.W.2d 951,
952; Ex parte Shults, 127 Tex.Cr.R. 484, 77 S.W.2d 877.
—Proof Evident. See Proof.
EVIDENTIA, L. Evidence. See Preuve.
EVIDENTIARY. Having the quality of evidence;
constituting evidence; evidencing. A term intro-
duced by Bentham, and, from its convenience,
adopted by other writers.
EVIDENTIARY FACTS. Facts necessary to
prove the essential or ultimate fact. People ex
rel. Hudson & M. R. Co. v. Sexton, Sup., 44 N.Y.
S.2d 884, 885. Facts which furnish evidence of
existence of some other fact. General Tire &
Rubber Co. v. Cooper, 176 Miss. 491, 165 So. 420,
421; proofs and testimony. In re Britton's Will,
167 Misc. 747, 4 N.Y.S.2d 715, 719; such facts must
be found from testimony and other evidence.
Texas Employers Ins. Ass'n v. Reed, Tex.Civ.App.,
150 S.W.2d 858, 862.
Those which have a legitimate bearing on the matter or
question in issue and which are directly (not inferentially)
established by the evidence in the case. Woodiill v. Pat-
ton, 76 Ind. 579, 40 Am.Rep. 269. Facts which can be
directly established by testimony or evidence ;-distin-
guished from "ultimate facts." Real Estate Title, Ins. &
Trust Co. v. Lederer, D.C.Pa., 229 F. 799, 804.
•
EVIDENTLY. Means in an evident manner, per-
ceptibly, clearly, obviously, plainly. It is employ-
ed to express the idea of full-proof conviction.
Tennes v. Tennes, 320 Ill.App. 19, 50 N.E.2d 132,
139.
EVIL. It is an "evil" within rule that either
means or end of conspiracy must be evil, to frus-
trate or impede a government function, whether
that function is performed under a constitutional
or an unconstitutional law. U. S. v. Rhoads, D.C.
D.C., 48 F.Supp. 175, 176.
EVIL REPUTATION. Character imputed to per-
son in community is generally bad. People v.
Pieri, 269 N.Y. 315, 199 N.E. 495, 497.
EVOCATION. In French law. The withdrawal
of a cause from the cognizance of an inferior
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EX CONSULTO
court, and bringing it before another court or
judge. In some respects this process resembles
the proceedings upon certiorari.
EVOLUTION. Every useful art has its technique
which is practiced by those who are skilled in it,
and which is broadened in its usefulness thereto
from precedent to precedent. This is the process
of "evolution"—a phenomenon in which the ex-
pectable follows the expectable. Less Car Load
Lots Co. v. Pennsylvania R. Co., D.C.N.Y., 10 F.
Supp. 642, 648.
EVOLVED. Means "developed" and may apply
to any person attaining highly developed mental
training and experience in arts and sciences and
profession of teaching, medicine, or law. In re
Carpenter's Estate, 163 Misc. 474, 297 N.Y.S. 649,
654.
EWAGE. (L. Fr. Ewe, water.) In old English
law. Toll paid for water passage. Cowell. The
same as aquage or aquagium. Tomlins.
EWBRICE. Adultery; spouse-breach; marriage-
breach. Cowell; Tomlins.
EWRY. An office in the royal household where
the table linen, etc., is taken care of. Wharton.
EX. A latin preposition meaning from, out of, by,
on, on account of, or according to.
A prefix, denoting removal, cessation or former.
Prefixed to the name of an office, relation, status,
etc., it denotes that the person spoken of once
occupied that office or relation, but does so no
longer, or that he is now out of it. Thus, ex-
mayor, ex-partner, ex-judge.
A prefix which is equivalent to "without," "re-
serving," or "excepting." In this use, probably an
abbreviation of "except." Thus, ex-interest, ex-
coupons.
"A sale of bonds 'ex. July coupons' means a sale reserv-
ing the coupons; that is, a sale in which the seller
receives, in addition to the purchase price, the benefit of
the coupons, which benefit he may realize either by detach-
ing them or receiving from the buyer an equivalent con-
sideration." Porter v. Wormser, 94 N.Y. 445.
Also used as an abbreviation for "exhibit." See
Dugan v. Trisler, 69 Ind.. 555.
EX ABUNDANTL Out of abundance; abundant-
ly; superfluously; more than sufficient. Calvin.
EX ABUNDANT! CAUTELA. Lat. Out of abun-
dant caution. "The practice has arisen abundanti
cautela." 8 East, 326; Lord Ellenborough, 4
Maule & S. 544.
EX ADVERSO. On the other side. 2 Show. 461.
Applied to counsel.
EX ZEQUITATE. According to equity; in equity.
Fleta, lib. 3, c. 10, § 3.
EX ./EQUO ET BONO. A phrase derived from
the civil law, meaning, in justice and fairness;
according to what is just and good; according
to equity and conscience. 3 Bl. Comm. 163.
EX ALTERA PARTE. Of the other part.
EX ANTECEDENTIBUS ET CONSEQUENTIBUS
FIT OPTIMA INTERPRETATIO. A passage in
a statute is best interpreted by reference to what
precedes and what follows it. Behrens v. State,
140 Neb. 671, 1 N.W.2d 289, 292; The best interpre-
tation [of a part of an instrument] is made from
the antecedents and the consequents, [from the
preceding and following parts.] 2 Inst. 317.
The law will judge of a deed or other instrument, con-
sisting of divers parts or clauses, by looking at the whole;
and will give to each part its proper office, so as to ascer-
tain and carry out the intention of the parties. Broom,
Max. *577. The whole instrument is to be viewed and
compared in all its parts, so that every part of it may be
made consistent and effectual. 2 Kent, Comm. 555.
EX ARBITRIO JUDICIS. At, in, or upon the dis-
cretion of the judge. 4 Bl. Comm. 394. A term
of the civil law. Inst. 4, 6, 31.
EX ASSENSU CURIAE. By or with the consent
of the court.
EX ASSENSU PATRIS. By or with the consent
of the father.
A species of dower ad ostium ecclesice, during the life of
the father of the husband; the son, by the. father's cop-
sent expressly given, endowing his wife with parcel of his
father's lands. Abolished by 3 & 4 Wm. IV, c. 105, § 13.
EX ASSENSU SUO. With his assent. Formal
words in judgments for damages by default.
Comb. 220.
EX BONIS. Of the goods or property. A term
of the civil law; distinguished from in bonds, as
being descriptive of or applicable to property not
in actual possession. Calvin.
EX CATHEDRA. From the chair. Originally
applied to the decisions of the popes from their
cathedra, or chair. Hence, authoritative; having
the weight of authority.
EX CAUSA, L. Lat. By title.
EX CERTA SCIENTIA. Of certain or sure
knowledge. These words were anciently used in
patents, and imported full knowledge of the sub-
ject-matter on the part of the king. See 1 Coke,
40b.
EX COLORS, By color; under color of; under
pretense, show, or protection of. Thus, ex colore
officii, under color of office.
EX COMITATE. Out of comity or courtesy.
EX COMMODATO. From or out of loan. A term
applied in the old law of England to a right of
action arising out of a loan, (commodatum.)
Glanv. lib. 10, c. 13; 1 Reeve, Eng. Law, 166.
EX COMPARATIONE SCRIPTORUM. By a com-
parison of writings or handwritings. A term in
the law of evidence. Best, Pres. 218.
EX CONCESSIS. From the premises granted.
According to what has been already allowed.
EX CONSULTO. With consultation or delibera-
tion.
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EX CONTINENT!
EX CONTINENTL Immediately; without any in-
terval or delay; incontinently. A term of the
civil law. Calvin.
EX CONTRACTU. From or out of a contract.
In both the civil and the common law; rights and causes
of action are divided into two classes,-those arising ex
contractu, (from a contract,) and those arising ex delicto,
(from a delict or tort.) See 3 Bl.Comm. 117; Mackeld.
Rom. Law, § 384. See Scharf v. People, 134 Ill. 240, 24 N.E.
761; Federal Life Ins. Co. v. Maxam, 70 Ind.App. 266, 117
N.E. 801, 807.
If cause of action declared in pleading arises from breach
of promise, the action is "ex contractu". Chambers v.
Birmingham Trust & Savings Co., 232 Ala. 609, 168 So.
893.
EX CURIA. Out of court; away from the court.
EX DEBITO JUSTITIZE. From or as a debt of
justice; in accordance with the requirement of
justice; of right; as a matter of right. The op-
posite of ex gratia, (q. v.). 3 Bl. Comm. 48, 67.
EX DEFECTU SANGUINIS. From failure of
blood; for want of issue.
EX DELICTO. From a delict, tort, fault, crime,
or malfeasance.
In both the civil and the common law, obligations and
causes of action are divided into two great classes,-those
arising ex contractu, (out of a contract,) and those ex
delicto. The latter are such as grow out of or are founded
upon a wrong or tort, e. g., trespass, trover, replevin.
These terms were known in English law at a very early,
period. See Inst. 4, 1, pr.; Mackeld.Rom.Law, § 384; 3
Bl.Comm. 117; Bract. fol. 101b; King v. New Orleans Ry.
& Light Co., 140 La. 843, 74 So. 168, 169; Lamb v. McHan,
17 Ga.App. 5, 86 S.E. 252, 253; Seney v. Knight, 292 Ill.
206, 126 N.E. 761, 763.
An action "ex delicto" is an action of tort; an action
arising out of fault, misconduct, or malfeasance. Sayers &
Muir Service Station v. Indian Refining Co., 266 Ky. 779;
100 S.W.2d 687, 689. If cause of action declared in plead-
ing arises from breach of duty growing out of contract, it
is in form "ex delicto" and case. Chambers v. Birming-
ham Trust & Savings Co., 232 Ala. 609, 168 So. 893.
EX DELICTO NON EX SUPPLICIO EMERGIT
INFAMIA. Infamy arises from the crime, not
from the punishment.
EX DEMISSIONE (commonly abbreviated ex
dem.) Upon the demise. A phrase forming part
of the title of the old action of ejectment.
EX DIRECTO. Directly; immediately. Story,
Bills, § 199.
EX DIUTURNITATE TEMPORIS, OMNIA PILE-
SUMUNTUR SOLEMNITER ESSE ACTA. From
length of time [after lapse of time] all things are
presumed to have been done in due form. Co.
Litt. 6b; Best, Ev. Introd. § 43; 1 Greenl. Ev. §
20.
EX DOLO MALO. Out of fraud; out of deceitful
or tortious conduct. A phrase applied to obliga-
tions and causes of action vitiated by fraud or
deceit.
EX DOLO MALO NON ORITUR ACTIO. Out of
fraud no action arises; fraud never gives a right
of action. No court will lend its aid to a man
who founds his cause of action upon an immoral
or illegal act. Cowp. 343; Broom, Max. 729.
EX DONATIONIBUS AUTEM FEODA MILITAR-IA  MAGNUM SERJEANTIUM NON CON-
TINENTIBUS ORITUR NOBIS QUODDAM
NOMEN GENERALE, QUOD EST SOCAGIUM.
Co. Litt. 86. From grants not containing military
fees or grand serjeanty, a kind of general name
is used by us, which is "socage."
EX EMPTO. Out of purchase; founded on pur-
chase. A term of the civil law, adopted by Brac-
ton. Inst. 4, 6, 28; Bract. fol. 102. See Actio ex
Empto.
EX FACIE. From the face; apparently; evi-
dently. A term applied to what appears on the
face of a writing.
EX FACTO. From' or in consequence of a fact
or action; actually. Usually applied to an unlaw-
ful or tortious act as the foundation of a title,
etc. Sometimes used as equivalent to "de facto."
Bract. fol. 172.
EX FACTO JUS ORITUR. The law arises out of
the fact. Broom, Max. 102. A rule of law con-
tinues in abstraction and theory, until an act is
done on which it can attach and assume as it were
a body and shape. Best, Ev. Introd. § 1.
EX FICTIONE JURIS. By a fiction of law.
EX FREQUENTI DELICTO AUGETUR PCENA.
2 Inst. 479. Punishment increases with increasing
crime.
EX GRATIA. Out of grace; as a matter of grace,
favor, or indulgence; gratuitous. A term applied
to anything accorded as a favor; as distinguished
from that which may be demanded ex debito, as
a matter of right.  
EX GRAVI QUERELA. (From or on the grievous
complaint.) In old English practice. The name
of a writ (so called from its initial words) which
lay for a person to whom any lands or tenements
in fee were devised by will, (within any city,
town, or borough wherein lands were devisable by
custom,) and the heir of the devisor entered and
detained them from him. Fitzh. Nat. Brev. 198,
L, et seq.; 3 Reeve, Eng. Law, 49. Abolished by
St. 3 & 4 Wm. IV. c. 27, § 36.
EX HYPOTHESI. By the hypothesis; upon the
supposition; upon the theory or facts assumed.
EX INDUSTRIA. With contrivance or delibera-
tion; designedly; on purpose. See 1 Kent, Comm.
318; Martin v. Hunter, 1 Wheat 334, 4 L.Ed. 97.
EX INTEGRO. Anew; afresh.
EX JUSTA CAUSA. From a just or lawful cause;
by a just or legal title.
EX LEGE. By the law; by force of law; as a
matter of law.
EX LEGIBUS. According to the laws. A phrase
of the civil law, which means according to the in-
tent or spirit of the law, as well as according to
the words or letter. Dig. 50, 16, 6. See Calvin.
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EX PARTE
EX LICENTIA REGIS. By the king's license. 1
Bl. Comm. 168, note.
EX LOCATO. From or out of lease or letting.
A term of the civil law, applied to actions or rights
of action arising out of the contract of locatum,
(q. v.) Inst. 4, 6, 28. Adopted at an early period
in the law of England. Bract. fol. 102; 1 Reeve,
Eng. Law, 168.
EX MALEFICIO. Has been defined variously as
from or growing out of wrongdoing; tortious;
tortiously; growing out of, or founded on, mis-
doing or tort; on account of misconduct; by
virtue of or out of an illegal act. "Ex maleficio"
is probably synonymous with "malfeasance".
Lucas v. Central Missouri Trust Co., 350 Mo. 593,
166 S.W.2d 1053, 1056.
This term is frequently used in the civil law as the syn-
onym of "ex delicto," (q. v.,) and is thus contrasted with
"ex contractu," In this sense it is of more rare occurrence
in the common law, though found in Bracton (fols. 99, 101,
102.)
EX MALEFICIO NON ORITUR CONTRACTUS.
A contract cannot arise out of an act radically
vicious and illegal. 1 Term, 734; 3 Term, 422;
Broom, Max. 734.
EX MALLS MORIBUS BONZE LEGES NAIVE
SUNT. 2 Inst. 161. Good laws arise from evil
morals, i. e., are necessitated by the evil behavior
of men.
EX MALITIA. From malice; maliciously. In
the law of libel and slander, this term imports
a publication that is false and without legal ex-
cuse. Dixon v. Allen, 69 Cal. 527, 11 P. 179.
EX MERO MOTU. Of his own mere motion; of
his own accord; voluntarily and without prompt-
ing or request.
Royal letters patent which are granted at the crown's
own instance, and without request made, are said to be
granted ex mero motu. When a court interferes, of its own
motion, to object to an irregularity, or to do something
which the parties are not strictly entitled to, but which will
prevent injustice, it is said to act ex mero motu, or ex
proprio motu, or sua sponte, all these terms being here
equivalent.
EX MORA. From or in consequence of delay.
Interest is allowed ex mora; that is, where there
has been delay in returning a sum borrowed. A
term of the civil law. Story, Bailm. § 84.
EX MORE. According to custom. Calvin.
EX MULTITUDINE SIGNORUM, COLLIGITUR
IDENTITAS VERA. From a great number of
signs or marks, true identity is gathered or made
up. Bac. Max. 103, in regula 25. A thing de-
scribed by a great number of marks is easily
identified, though, as to some, the description may
not be strictly correct. Id.
EX MUTUO. From or out of loan. In the old
law of England, a debt was said to arise ex mutuo
when one lent another anything which consisted
in number, weight, or measure. 1 Reeve, Eng.
Law, 159; Bract. fol. 99.
EX NECESSITATE. Of necessity. 3 Rep. Ch.
123.
EX NECESSITATE LEGIS. From or by neces-
sity of law. 4 Bl. Comm. 394.
EX NECESSITATE REI. From the necessity or
urgency of • the thing or case. 2 Pow. Dev. (by
Jarman,) 308.
EX NIHILO NIHIL FIT. From nothing nothing
comes. Jackson v. Waldron, 13 Wend. N.Y. 178,
221; Root v. Stuyvesant, 18 Wend. N.Y. 257, 301.
EX NUDO PACTO NON ORITUR [NASCITUR]
ACTIO. Out of a nude or naked pact [that is, a
bare parol agreement without consideration] no
action arises. Bract. fol. 99; Fleta, lib. 2, c. 56, • §
3; Plowd. 305. Out of a promise neither attend-
ed with particular solemnity (such as belongs to
a specialty) nor with any consideration no legal
liability can arise. 2 Steph. Comm. 113. A parol
agreement, without a valid consideration, cannot
be made the foundation of an action. A leading
maxim both of the civil and common law. Cod.
2, 3, 10; Id. 5, 14, 1; 2 Bl. Comm. 445; Smith,
Cont. 85, 86.
EX OFFICIO. From office; by virtue of the of-
fice; without any other warrant or appointment
than that resulting from the holding of a particu-
lar office.
Powers may be exercised by an officer which are not
specifically conferred uopn him, but are necessarily implied
in his office; these are ex officio. Thus, a judge has ex
officio the powers of a conservator of the peace. Courts
are bound to notice public statutes judicially and ex officio.
King v. Physicians' Casualty Ass'n of America, 97 Neb. 637,
150 N.W. 1010, 1011; Lobrano v. Police Jury of Parish of
Plaquemines, 150 La. 14, 90 So. 423, 424; Allin v. Mercer
County, 174 Ky. 566, 192 S. W. 638, 640.
EX OFFICIO INFORMATION. In English law.
A criminal information filed by the attorney gen-
eral ex officio on behalf of the crown, in the court
of king's bench, for offenses more immediately af-
fecting the government, and to be distinguished
from informations in which the crown is the
nominal prosecutor. Mozley & Whitley; 4 Steph.
Comm. 372-378.
EX OFFICIO OATH. An oath taken by offending
priests; abolished by 13 Car. II. St. 1, c. 12.
EX OFFICIO SERVICES. Services which the
law annexes to a particular office and requires
the incumbent to perform. City of Birmingham
v. Hawkins, 208 Ala. 79, 94 So. 62, 64; Nichols v.
Galveston County, 111 Tex. 50, 228 S.W. 547, 548.
"Ex officio services," which deputy attorney general may
perform in place of Attorney General, are services imposed
by law on public officer by virtue of his office and relating
to public interests or business of county or state. Chemical
Bank & Trust Co. v. Oakland County, 264 Mich. 673, 251
N.W. 395.
EX PACTO ILLICITO NON ORITUR ACTIO.
From an illegal contract an action does not arise.
Broom, Max. 742. See 7 Clark & F. 729.
EX PARTE. On one side only; by or for one
party; done for, in behalf of, or on the applica-
tion of, one party only.
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EX PARTE
A judicial proceeding, order, injunction, etc., is said to be
ex parte when it is taken or granted at the instance and for
the benefit of one party only, and without notice to, or
contestation by, any person adversely interested. Janin v.
Logan, 209 Ky. 811, 273 S.W. 531, 532; Van Alen v. Supe-
rior Court in and for Los Angeles County, 37 Cal.App. 696,
174 P. 672; Stella v. Mosele, 299 53, 19 N.E.2d 433,
435.
In its primary sense, ex parte, as applied to an applica-
tion in a judicial proceeding, means that it is made by a
person who is not a party to the proceeding, but who has
an interest in the matter which entitles him to make the
application. Thus, in a bankruptcy proceeding or an
administration action, an application by A. B., a creditor,
or the like, would be described as made "ex parte A. B.,"
e., on the part of A. B.
In its more usual sense, ex parte means that an applica-
tion is made by one party to a proceeding in the absence
of the other. Thus, an ex parte injunction is one granted
without the opposite party having had notice of the appli-
cation. It would not be called "ex parte" if he had proper
notice of it, and chose not to appear to oppose it. Sweet.
"Ex parte," in the heading of a reported case,
signifies that the name following is that of the
party upon whose application the case is heard.
EX PARTE MATERNA. On the mother's side;
of the maternal line.
EX PARTE PATERNA. On the father's side;
of the paternal line.
The phrases "ex parte materna" and "ex parte paterna"
denote the line or blood of the mother or father, and have
no, such restricted or limited sense as from the mother or
father exclusively. Banta v. Demarest, 24 N.J.L. 431.
EX PARTE TALIS. A writ that lay for a bailiff
or receiver, who, having auditors appointed to
take his accounts, cannot obtain of them reason-
able allowance, but is cast into prison. Fitzh.
Nat. Brev. 129.
EX PAUCIS DICTIS INTENDERE PLURIMA
POSSIS. Litt. § 384. You can imply many things
from few expressions.
EX PAUCIS PLURIMA CONCIPIT INGENIUM.
Litt. § 550. From a few words or hints the under-
standing conceives many things.
EX POST FACTO. After the fact; by an act or
fact occurring after some previous act or fact,
and relating thereto; by subsequent matter; the
opposite of ab initio. Thus, a deed may be good
ab inittio, or, if invalid at its , inception, may be
confirmed by matter ex post facto.
EX POST FACTO LAW. A law passed after the
occurrence of a fact or commission of an act,
which retrospectively changes the legal conse-
quences or relations of such fact or deed. By
Const. U. S. art. 1, § 10, the states are forbidden
to pass "any ex post facto law." In this connec-
tion the phrase has a much narrower meaning
than its literal translation would justify, as will
appear from the extracts given below.
A statute which changes punishment which may be
imposed for a crime theretofore committed is "ex post
facto" only if it prescribes or permits imposition of a
greater sentence. People ex rel. Pincus v. Adams, 274 N.Y.
447, 9 N.E.2d 46, 110 A.L.R. 1303.
An "ex post facto law" has been defined as (1) Every law
that makes an action, done before the passing of the law,
and which was innocent when done, criminal, and punishes
such action. (2) Every law that aggravates a crime, or
makes it greater than it was when committed. (3) Every
law that changes the punishment, and inflicts a greater
punishment than the law annexed to the crime when corn-
mitted. (4) Every law that alters the legal rules of evi-
dence, and receives less or different testimony than the law
required at the time of the commission of the offense, in
order to convict the offender. All these, and similar laws,
are prohibited by the constitution. But a law may be ex
post facto, and still not amenable to this constitutional.
inhibition; that is, provided it mollifies, instead of aggra-
vating, the rigor of the criminal law. Cummings v. Mis-
souri, 4 Wall. 277, 18 L.Ed. 356; 3 Story, Const. 212; State
v. Malloy, 95 S.C. 441, 78 S.E. 995, 997, Ann.Cas.1915C, 1053;
In re Jamestown Caucus Law, 43 R.I. 421, 112 A. 900, 902;
State v. Teasley, 194 Ala. 574, 69 So. 723, 725, Ann.Cas.
1918E, 347; Beazell v. State of Ohio, 269 U.S. 167, 46 S.Ct.
68, 70 L.Ed. 216; Hernandez v. State, 43 Ariz. 424, 32 P.
2d 18, 24.
An "ex post facto law" includes every law that creates
and punishes a criminal offense which, when done before
the passing of the law, was innocent, and every law that
aggravates a crime or makes it greater than it was when
committed, and every law that inflicts a greater punish-
ment than was attached to the crime when committed.
State v. Pleason, 56 N. D. 499, 218 N.W. 154, 155.
An "ex post facto law" is defined as a law which provides
for the infliction of punishment upon a person for an act
done which, when it was committed, was innocent; a law
which aggravates a crime or makes it greater than when it
was committed; a law that changes the punishment or
inflicts a greater punishment than the law annexed to the
crime when it was committed ; a law that changes the rules
of evidence and receives less or different testimony than
was required at the time of the commission of the offense
in order to convict the offender; a law which, assuming to
regulate civil rights and remedies only, in effect imposes a
penalty or the deprivation of a right which, when done,
was lawful; a law which deprives persons accused of crime
of some lawful protection to which they have become enti-
tled, such as the protection of a former conviction or
acquittal, or of the proclamation of amnesty; every law
which, in relation to the offense or its consequences, alters
the situation of a person to his disadvantage. State v.
Rowe, 116 N.J.L. 48, 181 A. 706.
An "ex post facto law" is one which makes an act pun-
ishable in a manner in which it was not punishable when
it was committed. Statler v. U. S. Savings & Trust Co.,
122 Pa.Super. 189, 186 A. 290, 292; Southern Kraft Corpo-
ration v. Hardin, 205 Ark. 512, 169 S.W.2d 637, 643.
An "ex post facto law" is one which makes a crime of
an act which when committed was not a crime or a law
which increases the punishment for an act already com-
mitted. Commonwealth ex rel..Wall v. Smith, 345 Pa. 512,
29 A.2d 912, 913.
An "ex post facto law" is one which renders an act
punishable in manner in which it was not punishable when
it was committed, or which deprives accused of any sub-
stantial right or immunity possessed by him before its
passage as to prior offenses. People of U. S. ex rel.
Umbenhowar v. McDonnell, D.C.Ill., 11 F.Supp. 1014, 1015.
An ex post facto law is one which renders an act pun-
ishable in manner in which it was not punishable when
committed. Such a law may inflict penalties on the person,
or pecuniary penalties which swell the public treasury.
The legislature is therefore prohibited from passing a law
by which a man's estate, or any part of it, shall be seized
for a crime, which was not declared, by some previous law,
to render him liable to such punishment. Fletcher v. Peck,
6 Cranch, 87, 138, 3 L.Ed. 162.
An increase in possible penalty is "ex post facto" regard-
less of length of sentence actually imposed. Ex parte
Flora, Ohio App., 31 N.E.2d 482, 485.
The plain and obvious meaning of prohibition is that the
legislature shall not pass any law, after a fact done by any
citizen, which shall have relation to that fact, so as to
punish that which was innocent when done; or to add to
the punishment of that which was criminal; or to increase
the malignity of a crime; or to retrench the rules of evi-
dence, so as to make conviction more easy. This definition
of an ex post facto law is sanctioned by long usage. Strong
v. State, 1 Black., Ind., 196.
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EX TURPI
The term "ex post facto law," in the United States con-
stitution, cannot be construed to include and to prohibit
the enacting any law after a fact, nor even to prohibit the
depriving a citizen of a vested right to property. Calder v.
Bull, 3 Da11. 386, 1 L.Ed. 648.
Any law passed after commission of offense for which the
defendant is tried which inflicts greater punishment or
which alters situation of accused is "ex post facto". United
States v. Platt, D.C.Tex., 31 F.Supp. 788, 793.
Statute which punishes as a crime an act previously com-
nlitted, which was innocent when done, which makes more
burdensome punishment for a crime after its commission,
or which deprives one charged with crime of any defense
available according to law at time act was committed, is
"ex post facto". People ex rel. Luciano v. Murphy, 290
N.Y.S. 1011, 1014, 160 Misc. 573.
The operation of a statute to repeal, extend the period
of, or provide for the tolling of a statute of limitations
under which a complete defense has already accrued, would
be "ex post facto". Hill v. State, 146 Tex.Cr.R. 333, 171
S.W.2d 880, 882, 883, 884.
The prohibition of "ex post facto" laws applies only to
criminal or penal matters. Bannister v. Bannister, 181 Md.
177, 29 A.2d 287, 289; Garrett Freight Lines v. State Tax
Commission, 103 Utah 390, 135 P.2d 523, 527, 146 A.L.R.
1003; Southern Kraft Corporation v. Hardin, 205 Ark. 512,
169 S.W.2d 637, 643.
To render a statute "ex post facto," it must be one which
imposes punishment for an act which was not punishable
when it was committed, or imposes additional punishment
-or alters the situation of the accused to his disadvantage.
Andrus v. McCauley, D.C.Wash., 21 F.Supp. 70.
Trial procedure may be changed by Legislature, and new
procedure may be made applicable to offenses previously
committed, without violation of constitutional provision.
People ex rel. Pincus v. Adams, 274 N.Y. 447, 9 N.E.2d 46,
49, 50, 110 A.L.R. 1303.
"Ex post facto" and "retrospective" are not convertible
terms. The latter is a term of wider signification than the
former and includes it. All ex post facto laws are neces-
sarily retrospective, but not e converso. A curative or con-
firmatory statute is retrospective, but not ex post facto.
Constitutions of nearly all the states contain prohibitions
against ex post facto laws, but only a few forbid retrospec-
tive legislation in specific terms. Black, Const.Prohib. §§
170, 172, 222.
Retrospective laws divesting vested rights are impolitic
and unjust; but they are not "ex post facto laws," within
the meaning of the constitution of the United States, nor
repugnant to any other of its provisions; and, if not
repugnant to the state constitution, a court cannot pro-
nounce them to be void, merely because in their judgment
they are contrary to the principles of natural justice.
Albee v. May, 2 Paine, 74 Fed.Cas.No.134.
Every retrospective act is not necessarily an ex post facto
law. That phrase embraces only such laws as impose or
affect penalties or forfeitures. Locke v. New Orleans, 4
Wall. 172, 18 L. Ed. 334.
Retrospective laws which do not impair the obligation of
contracts, or affect vested rights, or partake of the char-
acter of ex post facto laws, are not prohibited by the con-
stitution. Bay v. Gage, 36 Barb., N.Y., 447.
The act providing that every sentence of death imposed
shall be by electrocution is not an "ex post facto law"
because of its retrospective effect. State ex rel. Pierre v.
Jones, 200 La. 808, 9 So.2d 42, 45, 47.
EX PRAZECEDENTIBUS ET CONSEQUENTIBUS
OPTIMA FIT INTERPRETATIO. 1 Roll. 374.
The best interpretation is made from the context.
EX PROPRIO MOTU. Of his own accord. See
Ex Mero Motu.
EX PROPRIO VIGORE. By their or its own
force. 2 Kent, Comm. 457.
EX PROVISIONE HOMINIS. By the provision of
man. By the limitation of the party, as distin-
guished from the disposition of the law. 11 Coke,
80b.
EX PROVISIONE MARITI. From the provision
of the husband.
EX QUASI CONTRACTU. From quasi contract.
Fleta, lib. 2, c. 60.
EX RELATIONE. Upon relation or information.
Legal proceedings which are instituted by the attorney
general (or other proper person) in the name and behalf of
the state, but on the information and at the instigation of
an individual who has a private interest in the matter, are
said to be taken "on the relation" (ex relatione) of such
person, who is called the "relator." Such a cause is
usually entitled thus : "State ex rel. Doe v. Roe."
In the books of reports, when a case is said to be
reported ex relatione, it is meant that the reporter derives
his account of it, not from personal knowledge, but from
the relation or narrative of some person who was present
at the argument.
EX RIGORE JURIS. According to the rigor or
strictness of law; in strictness of law. Fleta,
lib. 3, c. 10, § 3.
EX SCRIPTIS OLIM VISIS. From writings for-
merly seen.
A term used as descriptive of that kind of proof of hand-
writing where the knowledge has been acquired by the wit-
ness having seen letters or other documents professing fo
be the handwriting of the party, and having afterwards
communicated personally with the party upon the contents
of those letters or documents, or having otherwise acted
upon them by written answers, producing further corre-
spondence or acquiescence by the party in some matter to
which they relate, or by the witness transacting with the
party some business to which they relate, or by any other
mode of communication between the party and the witness
which, in the ordinary course of the transactions of life,
induces a reasonable presumption that the letters or docu-
ments were the handwriting of the party. 5 Adol. & E.
730.
EX SHIP. See Ship.
EX STATUTO. According to the statute. Fleta.
lib. 5, c. 11, § 1.
EX STIPULATU ACTIO. In the civil law. An
action of stipulation. An action given to recover
marriage portions. Inst. 4, 6, 29.
EX TEMPORE. From or in consequence of time;
by lapse of time. Bract. fols. 51, 52. Ex diuturno
tempore, from length of time. Id. fol. 51b.
Without preparation or premeditation.
EX TESTAMENTO. From, by, or under a will.
The opposite of ab intestato (q. v.).
EX TOTA MATERIA EMERGAT RESOLUTIO.
The explanation should arise out of the whole sub-
ject-matter; the exposition of a statute should be
made from all its parts together. Wing. Max. 238.
EX TURPI CAUSA NON ORITUR ACTIO. Out
of a base [illegal, or immoral] consideration, an
action does [can] not arise. 1 Selw. N. P. 63;
Broom, Max. 730, 732; Story, Ag. § 195.
No disgraceful matter can ground an action. Eidson v.
Maddox, 195 Ga. 641, 24 S.E.2d 895, 897.
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EX TURPI
EX TURK CONTRACTU ACTIO NON ORITUR.
From an immoral or iniquitous contract an action
does not arise. A contract founded upon an il-
legal or immoral consideration cannot be en-
forced by action. 2 Kent, Comm. 466; Dig. 2, 14,
27, 4.
EX UNA PARTE. Of one part or side; on one
side.
EX UNO DISCES OMNES. From one thing you
can discern all.
EX UTRAQUE PARTE. On both sides. Dyer,
126b.
EX UTRISQUE PARENTIBUS CONJUNCTI. Re-
lated on the side of both parents; of the whole
blood. Hale, Corn. Law, c. 11.
EX VI TERMINI. From or by the force of the
term. From the very meaning of the expression
used. 2 Bl. Comm. 109, 115.
EX VISCERIBUS. From the bowels. From the
vital part, the very essence of the thing. 10 Coke,
24b; Homer v. Shelton, 2 Metc. Mass. 213. Ex
visceribus verborum, from the mere words and
nothing else. 1 Story, Eq. Jur. § 980; Fisher v.
Fields, 10 Johns. N.Y. 495.
EX VISITATIONE DEI. By the dispensation of
God; by reason of physical incapacity. Anciently,
when a prisoner, being arraigned, stood silent in-
stead of pleading, a jury was impaneled to in-
quire whether he obstinately stood mute or was
dumb ex visitatione Dei. 4 Steph. Comm. 394.
Also by natural, as distinguished from violent,
causes. When a coroner's inquest finds that the
death was due to disease or other natural cause,
it is frequently phrased "ex visitatione Dei."
EX VISU SCRIPTIONIS. From sight of the
writing; from having seen a person write. A
term employed to describe one of the modes of
proof of handwriting. Best, Pres. 218.
EX VOLUNTATE. Voluntarily; from freewill or
choice.
EXACTION. The wrongful act of an officer or
other person in compelling payment of a fee or
reward for his services, under color of his official
authority, where no payment is due.
Between "extortion" and "exaction" there is this dif-
ference : that in the former case the officer extorts more
than his due, when something is due to him; in the latter,
he exacts what is not his due, when there is nothing due to
him. Co.Litt. 368.
EXACTLY ALIKE. Representation that the liv-
ing apartment on the first floor was exactly like
the living apartment on the second floor is speci-
fic and definite; exactly alike meaning not abso-
lutely identical, but substantially so in size, de-
sign, finish, and fixtures. Lipsher v. Resnikoff, 99
Conn. 13, 120 A. 859.
EXACTOR.
Civil law. A gatherer or receiver of money; a
collector of taxes. Cod. 10, 19.
Old English law. A collector of the public mon-
eys; a tax gatherer. Thus, exactor regis was the
name of the king's tax collector, who took up the
taxes and other debts due the treasury.
EXALTARE. In old English law. To raise; to
elevate.  Frequently spoken of water, i. e., to
raise the surface of a pond or pool.
EXAMEN. L. Lat. A trial. Examen computi,
the balance of an account. Townsh. Pl. 223.
EXAMINATION. An investigation; search; in-
terrogating.
Criminal Practice
An investigation by a magistrate of a person who has
been charged with crime and arrested, or of the facts and
circumstances which are alleged to have attended the crime
and to fasten suspicion upon the party so charged, in order
to ascertain whether there is sufficient ground to hold him
to bail for his trial by the proper court. U. S. W. Stanton,
C.C.A.Conn., 17 C.C.A. 475, 70 F. 890; State v. Conrad, 95
N.C. 669. The preliminary hearing to determine whether
person charged with having committed a crime should be
held for trial. Commonwealth v. Cohen, 102 Pa.Super. 397,
157 A. 32, 33.
Trial Practice
The examination of a witness consists of the series of
questions put to him by a party to the action, or his coun-
sel, for the purpose of bringing before the court and jury
in legal form the knowledge which the witness has of the
facts and matters in dispute, or of probing and sifting his
evidence previously given.
Of a long account. This phrase does not mean
examination of the account to ascertain the result
or effect of it, but proof by testimony of correct-
ness of items composing it. Magown v. Sinclair,
5 Daly N.Y. 63; State ex rel. Hustisford Light,
Power & Mfg. Co. v. Grimm, 208 Wis. 366, 243
N.W. 763.
Of bankrupt. This is the interrogation of a bank-
rupt, in the course of proceedings in bankruptcy,
or prior to the adjudication (Cameron v. United
States, 231 U.S. 710, 34 S.Ct. 244, 58 L.Ed. 448;
In re Fleischer, D.C.N.Y., 151 F. 81), concerning
the conduct of his business, the cause of his bank-
ruptcy, his dealings with his creditors and other
persons, the amount, kind, and whereabouts of
his property, and all matters which may affect
the administration and settlement of his estate.
This is authorized by Bankruptcy Act, § 7, 30 Stat.
548, 11 U.S.C.A. § 25. The bankrupt's wife or any
other person may also be examined concerning
the bankrupt's acts, conduct, or property. Bank-
ruptcy Act, § 21, 30 Stat. 551, as amended by Act
Feb. 5, 1903, c. 487, § 7, 32 Stat. 798, 11 U.S.C.A. §
44. In re Horgan, C.C.A.N.Y., 39 C.C.A. 118, 98
F. 414.
Of invention. An inquiry made at the patent-
office, upon application for a patent, into the nov-
elty and utility of the alleged invention, and as
to its interfering with any other patented inven-
tion. Rev.St. U. S. § 4893, 35 U.S.C.A. § 36.
Of title. An investigation made by or for a per-
son who intends to purchase real estate, in the
offices where the public records are kept, to ascer-
tain the history and present condition of the title
to such land, and its status with reference to liens,
incumbrances, clouds, etc.
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EXCEPTIO
Of wife. See Private Examination.
On his own behalf. For executor or devisee to be
"examined . on his own behalf", such executor or
devisee must be a party to the action. In re
Custer's Estate, 229 Iowa 1061, 295 N.W. 848, 852.
For "Cross-Examination," "De Bene Esse", "Di-
rect Examination," "Preliminary Examination,"
"Pro Interesse Suo," "Reexamination," and "Sep-
arate Examination," see those titles.
EXAMINED COPY. A copy of a record, public
book, or register, and which has been compared
with the original. 1 Campb. 469.
EXAMINER. English law. A person appointed
by a court to take the examination of witnesses
in an action, e., to take down the result of their
interrogation by the parties or their counsel, ei-
ther by written interrogatories or viva voce. An
examiner is generally appointed where a witness
is in a foreign country, or is too ill or infirm to
attend before the court, and is either an officer
of the court, or a person specially appointed for
the purpose. Sweet.
New Jersey. An examiner is an officer appoint-
ed by the court of chancery to take testimony in
causes depending in that court. His powers are
similar to those of the English examiner in chan-
cery.
Patent Office. An officer in the patent-office
charged with the duty of examining the patent-
ability of inventions for which patents are asked.
For "Special Examiner," see that title.
EXAMINER IN CHANCERY. An officer of the
court of chancery, before whom witnesses are
examined, and their testimony reduced to writing,
for the purpose of being read on the hearing of
the cause. Cowell.
EXAMINERS. Persons appointed to question
students of law in order to ascertain their qualifi-
cations before they are admitted to practice.
EXANNUAL ROLL. In old English practice. A.
roll into which (in the old way of exhibiting sher-
iffs' accounts). the illeviable fines and desperate
debts were transcribed, and which was annually
read to the sheriff upon his accounting, to see
what might be gotten. Cowell.
EXCAMB. In Scotch law. To exchange. 6 Bell,
App. Cas. 19, 22.
EXCAMBIATOR. An exchanger of lands; a
broker. Obsolete.
EXCAMBION, In Scotch law. Exchange. 1
Forb. Inst. pt. 2, p. 173.
EXCAMBIUM. An exchange; a place where
merchants meet to transact their business; also
an equivalent in recompense; a recompense in
lieu of dower ad ostium ecclesice.
EXCELLENCY.
America. The title is sometimes given to the chief
executive of a state or of the nation.
English law. The title of a viceroy, governor
general, ambassador, or commander in chief.
EXCEPT. But. In re Naftzger's Estate, 24 Cal.
2d 595, 150 P.2d 873, 875; Not including. In re
Kelly's Estate, 153 Misc. 445, 274 N.Y.S. 488. Oth-
er than, In re Nelson's Estate, 152 Misc. 245, 273
N.Y.S. 268; Ingram v. State, 241 Ala. 166, 3 So.2d
431, 432; Otherwise than, State v. White, 195 La.
1028, 197 So. 745, 747; Reserve. Adams v. Osage
Tribe of Indians, C.C.A.Okl., 59 F.2d 653, 655;
Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 656,
136 A.L.R. 286. To exclude from an enumeration,
the scope of statement or enactment, a privilege,
etc.; to leave out of account or consideration. In
re Garvin's Estate, 335 Pa. 542, 6 A.2d 796, 800;
Rickman v. Commonwealth, 195 Ky. 715, 243 S.W.
929.
The expression "except for" is synonymous in
many cases with "but for" and "only for." Rick-
man v. Commonwealth, 195 Ky. 715, 243 S.W. 929.
EXCEPT AS PROVIDED BY LAW. As used in
statute held to refer to statutory and not general
law of state, Pace v. Pace Bros. Co., 91 Utah 132,
59 P.2d 1, 8.
EXCEPT FOR THE INTESTATE SHARE OF
THE SURVIVING SPOUSE, IF ANY, OF SUCH
RELICT. Phrase as used in statute relating to
disposition of property coming from a deceased
spouse to relict dying intestate and without issue,
refers to share a surviving spouse would take un-
der section covering generally distribution of an
intestate's property. Russell v. Roberts, 54 Ohio
App. 441, 7 N.E.2d 811, 813.
EXCEPT IN TIME OF WAR. In statute provid-
ing for delivery to civil authorities of persons
accused of crime but • subject to military law, "ex-
cept in time of war", quoted words merely relieve
military authorities in time of war of duty to de-
liver accused persons to civil authorities. Articles
of War, art. 74, 10 U.S.C.A. § 1546. People v. Wil-
liams, 184 Misc. 510, 55 N.Y.S.2d 181, 182.
EXCEPT RIGHT OF WAY. Recitals "less the
right of way" and "except right of way" in grant-
ing clause of deed have well-defined accepted cer-
tain and unambiguous meaning by which grantor
conveys entire interest in servient estate and at
same time expressly recognizes and acknowledges
dominant estate. Jennings v. Amerada Petroleum
Corporation, 179 Okl. 561, 66 P.2d 1069, 1071.
EXCEPTING. As used in a deed, the terms "re-
serving" and "excepting" are used interchange-
ably, and their technical meaning will give way
to the manifest intent. Porter v. Warner-Cald-
well Oil Co., 183 Okl. 1, 80 P.2d 252, 253.
The words "reserving" and "excepting," although
strictly distinguishable, may be used interchangeably or
indiscriminately. Stephan v. Kentucky Valley Distilling
Co., 275 Ky. 705, 122 S.W.2d 493, 496.
EXCEPTIO.
Modern civil law. A plea by which the defend-
ant admits the cause of action, but alleges new
facts which, provided they be true, totally or
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EXCEPTIO
partially answer the allegations put forward on
the other side; thus distinguished from a mere
traverse of the plaintiff's averments. Tomkins
& J. Mod. Rom. Law, 90. In this use, the term
corresponds to the common-law plea in confession
and avoidance.
Roman law. An exception. In a general sense,
a judicial allegation opposed by a defendant to
the plaintiff's action. Calvin. A stop or stay to
an action opposed by the defendant. Cowell.
Answering to the "defense" or "plea" of the common
law. An allegation and defense of a defendant by which
the plaintiff's claim or complaint is defeated, either accord-
ing to strict law or upon grounds of equity.
In a stricter sense, the exclusion of an action that lay in
strict law, on grounds of equity, (actionis jure stricto com-
petentis ob cequitatem exclusio.) Heinecc. A kind of limi-
tation of an action, by which it was shown that the action,
though otherwise just, did not lie in the particular case.
Calvin. A species of defense allowed in cases where,
though the action as brought by the plaintiff was in itself
just, yet it was unjust as against the particular party sued.
Inst. 4, 13, pr.
EXCEPTIO DILATORIA. A dilatory exception;
called also "temporalis," (temporary;) one which
defeated the action for a time, (quce ad tempus
nocet,) and created delay, (et temporis dilationem
tribuit;) such as an agreement not to sue within
a certain time, as five years. Inst. 4, 13, 10. See
Dig. 44, 1, 3.
EXCEPTIO DOLI MALI. An exception or plea
of fraud. Inst. 4, 13, 1, 9; Bract. fol. 100b.
EXCEPTIO DOMMINII. A claim of ownership
set up in an action for the recovery of property
not in the possession of the plaintiff. Mackeld.
Rom. Law, § 299.
EXCEPTIO DOTIS CAUTZE NON NUMERATIE.
A defense to an action for the restitution of a
dowry that it was never paid, though promised,
available upon the dissolution of the marriage
within a limited time. Mackeld. Rom. Law, § 458.
EXCEPTIO EJUS REI CUJUS PETITUR DISSO-
LUTIO NULLA EST. A plea of that matter the
dissolution of which is sought [by the action] is
null, [or of no effect.] Jenk. Cent. 37, case 71.
EXCEPTIO FALSI OMNIUM ULTIMA. A plea
denying a fact is the last of all.
EXCEPTIO FIRMAT REGULAM IN CASIBUS
NON EXCEPTIS. An exception affirms the rule
in cases not excepted. Bacon, Aph. 17.
EXCEPTIO FIRMAT REGULAM IN CONTRAR-
IUM. An exception proves an opposite rule. See
exceptio probat regulam. Bacon, Aph. 17.
EXCEPTIO IN FACTUM. An exception on the
fact. An exception or plea founded on the pe-
culiar circumstances of the case. Inst. 4, 13, 1.
EXCEPTIO IN PERSONAM. A plea or defense
of a personal nature, which may be alleged only
by the person himself to whom it is granted by
the law. Mackeld. Rom. Law, § 217.
EXCEPTIO IN REM. A plea or defense not of
a personal nature, but connected with the legal
circumstances on which the suit is founded, and
which may therefore be alleged b? any party in
interest, including the heirs and sureties of the
proper or original debtor. Mackeld. Rom. Law,
§ 217.
EXCEPTIO JURISJURANDI. An exception of
oath; an exception or plea that the matter had
been sworn to. Inst. 4, 13, 4. This kind of excep-
tion was allowed where a debtor, at the instance
of his creditor, (creditors deferente,) had sworn
that nothing was due the latter, and had notwith-
standing been sued by him.
EXCEPTIO METUS. An exception or plea of fear
or compulsion. Inst. 4, 13, 1, 9; Bract. fol. 100b.
Answering to the modern plea of duress.
EXCEPTIO NON ADIMPLETI CONTRACTUS.
An exception in an action founded on a contract
involving mutual duties or obligations, to the
effect that the plaintiff is not entitled to sue be-
cause he has not performed his own part of the
agreement. Mackeld. Rom. Law, § 394.
EXCEPTIO NON SOLUTZE PECUNI1E. A plea
that the debt in suit was not discharged by pay-
ment (as alleged by the adverse party) notwith-
standing an acquittance or receipt given by the
person to whom the payment is stated to have
been made. Mackeld. Rom. Law, § 534.
EXCEPTIO NULLA EST VERSUS ACTIONEM
QUIE EXCEPTIONEM PERIMIT. There is [can
be] no plea against an action which destroys [the
matter of] the plea. Jenk. Cent. 106, case 2.
EXCEPTIO PACTI CONVENTI. An exception of
compact; an exception or plea that the plaintiff
had agreed not to sue. Inst. 4, 13, 3.
EXCEPTIO PECUNI1E NON NUMERATE. An
exception or plea of money not paid; a defense
which might be set up by a party who was sued
on a promise to repay money which he had never
received. Inst. 4, 13, 2.
EXCEPTIO PEREMPTORIA. A peremptory ex-
ception; called also "perpetua: (perpetual;) one
which forever destroyed the subject-matter or
ground of the action, (quce semper rem de qua
agitur perimit;) such as the exceptio doli mall,
the exceptio metus, etc. Inst. 4, 13, 9. See Dig. 44,
1, 3.
EXCEPTIO PROBAT REGULAM. The exception
proves the rule. 11 Coke, 41; 3 Term, 722. Some-
times quoted with the addition "de rebus non ex-
ceptis," ("so far as concerns the matters not ex-
cepted.")
EXCEPTIO QUIE FIRMAT LEGEM, EXPONIT
LEGEM. An exception which confirms the law
explains the law. 2 Bulst. 189.
EXCEPTIO QUOQUE REGULAM DECLARAT.
The exception also declares the rule. Bacon, Aph.
17.
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EXCEPTION
EXCEPTIO REI JUDICATIE. An exception or
plea of matter adjudged; a plea that the subject-
matter of the action had been determined in a
previous action. Inst. 4, 13, 5.
This term is adopted by Bracton, and is constantly used
in modern law to denote a defense founded upon a previous
adjudication of the same matter. Bract. fols. 100b, 177;
2 Kent, Comm. 120. A plea of a former recovery or judg-
ment.
EXCEPTIO REI VENDITIE ET TRADITZE. An
exception or plea of the sale and delivery of the
thing.
This exception presumes that there was a valid sale and
a proper tradition; but though, in consequence of the
rule that no one can transfer to another a greater right
than he himself has, no property was transferred, yet
because of some particular circumstance the real owner is
estopped from contesting it. Mackeld. Rom.Law, § 299.
EXCEPTIO SEMPER ULTIMO PONENDA EST.
An exception should always be put last. 9 Coke,
53.
EXCEPTIO SENATUSCONSULTI MACEDON-
IAN'. A defense to an action for the recovery
of money loaned, on the ground that the loan was
made to a minor or person under the paternal
power of another; so named from the decree of
the senate which forbade the recovery of such
loans. Mackeld. Rom. Law, § 432.
EXCEPTIO SENATUSCONSULTI VELLEIANI.
A defense to an action on a contract of surety-
ship, on the ground that the surety was a woman
and therefore incapable of becoming bound for
another; so named from the decree of the senate
forbidding it. Mackeld. Rom. Law, § 455.
EXCEPTIO TEMPORIS. An exception or plea
analogous to that of the statute of limitations in
our law; viz., that the time prescribed by law for
bringing such actions has expired. Mackeld. Rom.
Law, § 213.
EXCEPTION. Act of excepting or excluding from
a number designated or from a description; that
which is excepted or separated from others in a
general rule or description; a person, thing, or
case specified as distinct or not included; an act
of excepting, omitting from mention or leaving
out of consideration; and "except" means not in-
cluding. In re Kelly's Estate, 153 Misc. 445, 274
N.Y.S. 488.
For "General Exception" and "Special Excep-
tion," see those titles.
Admiralty and Equity Practice
An exception is a formal allegation tendered
by a party that some previous pleading or pro-
ceeding taken by the adverse party is insufficient.
Peck v. Osteen, 37 Fla. 427, 20 So. 549; Arnold v.
Slaughter, 36 W.Va. 589, 15 S.E. 250.
In admiralty, an "exception" serves the function of a
demurrer in common law or equity pleading. The Nea
Hellis, C.C.A.N.Y., 116 F.2d 803, 805.
Bail
An exception to bail is an objection to the spe-
cial bail put in by the defendant to an action at
law made by the plaintiff on grounds of the in-
sufficiency of the bail. 1 Tidd, Pr. 255.
Bequests
Bequests of sums made to same persons by
different paragraphs in same codicil held accumu-
lative, where second paragraph stated that be-
quest was "exception" to other bequests made;
term as used meaning in addition to person's be-
quests. In re Kelly's Estate, 153 Misc. 445, 274 N.
Y.S. 488.
Civil Law
An exceptio or plea. Used in this sense in Louis-
iana. For "Declaratory Exceptions," "Dilatory
Exceptions" and "Peremptory Exceptions," see
those titles.
Constitution
Provision granting Legislature discretionary
power to tax merchants, peddlers, and privileges
is "exception" to constitutional requirement of
equality. A "proviso" and an "exception" are sub-
stantially the same thing. Evans v. McCabe, 164
Tenn. 672, 52 S'.W.2d 159, 160.
Contracts
An exception is something taken out of instru-
ment and of kind dealt with in contract. Reliance
Ins. Co. v. Naman, 118 Tex. 21, 6 S.W.2d 743, 745.
Deeds or Conveyances
A clause by which grantor excepts something
out of that which he granted before by the deed.
Winston v. Johnson, 42 Minn. 398, 45 N.W. 958;
Cox v. Colossal Cavern Co., 210 Ky. 612, 276 S.W.
540, 542; Worcester v. Smith, 117 Me. 168, 103 A.
65; De Moss v. Sample, 143 La. 243, 78 So. 482, 485;
Beardslee v. New Berlin Light & Power Co., 207
N.Y. 34, 100 N.E. 434, 437, Ann.Cas.1914B, 1287.
An exception withdraws from operation of deed
part of thing granted which would otherwise pass
to grantee. Powell v. Big Horn Low Line Ditch
Co., 81 Mont. 430, 263 P. 692, 693; Johnson v.Peck, 90 Utah, 544, 63 P.2d 251, 254; Slone v. Ken-
tucky West Virginia Gas Co., 289 Ky. 623, 159 S.
W.2d 993, 994, 995.
Insurance Contract or Policy
An exclusion of one or more risks. Kirkby v.
Federal Life Ins. Co., C.C.A.Mich., 35 F.2d 126, 128;
Mancini v. Thomas, 113 Vt. 322, 34 A.2d 105, 109.
Provision of life and accident policy specifying
that indemnity should be paid only when death
occurred within thirty days after accident. Mow-
ery v. Washington Nat. Ins. Co., 289 Ill.App. 443,
7 N.E.2d 334, 336. Things taken out. Raymond
v. Great American Indemnity Co., 86 N.H. 93, 163
A. 713, 716.
The object of an exception is to exclude that which other-
wise would be included, Estabrook v. Eastern Commercial
Travelers Accident Ass'n, 308 Mass. 439, 32 N.E.2d 250, 252;
to take special cases out of a general class or to guard
against misinterpretation. Landau v. Equitable Life Assur.
Soc. of United States, 1 N.Y.S.2d 891, 895, 166 Misc. 42.
Under liability policy, excluded uses of automobile held
not "exceptions" since they were not in first instance
included within any statement of insurance. Raymond v.
Great American Indemnity Co., 86 N.H. 93, 163 A. 713, 716.
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Practice
A formal objection to the action of the court,
during the trial of a cause, in refusing a request
or overruling an objection; implying that the par-
ty excepting does not acquiesce in the decision of
the court, but will seek to procure its reversal,
and that he means to save the benefit of his re-
quest or objection in some future proceeding.
United States v. United States Fidelity & Guaran-
ty Co., 236 U.S. 512, 35 S.Ct. 298, 303, 59 L.Ed. 696;
Liquid Carbonic Co. v. Rodman, 52 Okl. 211, 152 P.
439; State v. Laundy, 103 Or. 443, 206 P. 290. It
is also somewhat used to signify other objections
in the course of a suit; for example, exception to
bail is a formal objection that special bail offered
by defendant is insufficient. 1 Tidd, Pr. 255.
An exception is, an objection formally taken to a deci-
sion of the court on a matter of law. State v. Wolzenski,
340 Mo. 1181, 105 S.W.2d 905, 907; an objection on a mat-
ter of law to a decision made, either before or after judg-
ment, by a court, tribunal, judge, or other judicial officer
in an action or proceeding. Hearn v. Gunther, 57 Cal.
App.2d 82, 134 P.2d 3, 5; an objection, oral or written,
taken, in course of an action or proceeding, as to bail, to
the decision or a ruling of a judge, or to something in his
charge to a jury. In re Pardue's Estate, 57 Cal.App.2d 918,
135 P.2d 394, 395.
.An objection to a pleading or any part thereof for want
of substance is a general exception; an objection to the
form in which a cause of action is stated is a special excep-
tion. Cochran v. People's Nat. Bank, Tex.Civ.App., 271
S.W. 433, 434.
Objections to report of master on bill for injunction held
"exceptions". Respro, Inc., v. Worcester Backing Co., 291
Mass. 467, 197 N.E. 198, 200.
To authorize review of alleged error in admitting evi-
dence in compensation case, there must be an "exception",
that known to equity practice, and defined as act of appeal-
ing from rulings appearing of record, and nothing more.
Indrisano's Case, 307 Mass. 520, 30 N.E.2d 538, 539.
Proviso and Exception Distinguished
A "proviso" and an "exception" are substantial-
ly the same thing. Evans v. McCabe, 164 Tenn.
672, 52 S.W.2d 159, 160.
A proviso differs from an exception. 1 Barn. &
Ald. 99. An exception exempts, absolutely, from
the operation of an engagement or an enactment;
a proviso, properly speaking, defeats their opera-
tion, conditionally. An exception takes out of an
engagement or enactment something which would
otherwise be part of the subject-matter of it; a
proviso avoids them by way of defeasance or ex-
cuse. 8 Am.Jur. 242; Board of Com'rs of Noble
County v. Whitney, 73 Okl. 160, 175 P. 112, 113;
Philadelphia Life Ins. Co. v. Farnsley's Adm'r,
162 Ky. 27, 171 S.W. 1004, 1005; New Jersey State
Board of Optometrists v. S. S. Kresge Co., Sup.,
113 N.J.L. 287, 174 A. 353, 357; Sowers Plan Crop
Ins. Mut. Co. v. Hobbs, 146 Kan. 166, 68 P.2d 1110,
1111.
The ordinary office of an "exception" or "proviso" in a
policy is to take special cases out of a general class or to
guard against misinterpretation. Landau v. Equitable Life
Assur. Soc. of United States, 1 N.Y.S.2d 891, 895, 166
Misc. 42.
Reservation and Exception as Synonymous or
Distinguishable
A reservation is always of a thing not in esse, but newly
created or reserved out of the land or tenement demised;
• an exception is always of a part of the thing granted, and
of a thing in esse. Co.Litt. 47a; 4 Kent, Comm. 468.
A "reservation" creates some new right in grantor while
an "exception" withholds from grant title to some part of
property which would otherwise pass. Clark v. Pauley,
291 Ky. 637, 165 S.W.2d 161, 162; Federal Land Bank of
New Orleans v. Cooper, 190 Miss. 490, 200 So. 729, 730, 731;
Goss v. Congdon, 114 Vt. 155, 40 A.2d 429, 430.
A reservation does not affect the description of the prop-
erty conveyed, but retains to the grantor some right upon
the property, as an easement, whereas an exception oper-
ates upon the description and withdraws from the descrip-
tion the excepted property. Moore v. Davis, 273 Ky. 838,
117 S.W.2d 1033, 1035.
A "reservation" is always of something taken back out of
that which is clearly granted, while an "exception" is of
some part of the estate not granted at all. Houghtaling
v. Stoothoff, 170 Misc. 773, 12 N.Y.S.2d 207, 210; Lewis v.
Standard Oil Co. of California, C.C.A.Cal., 88 F.2d 512, 514.
A reservation provides for return of rent or service, re-
garded as issuing out of land granted. An exception with-
holds particular portion of land granted. Cook v. Farley,
195 Miss. 638, 15 So.2d 352, 355 ; Marias River Syndicate v.
Big West Oil Co., 98 Mont. 254, 38 P.2d 599, 601.
Reservation means something issuing or arising out of
thing granted while an exception means some part of the
estate not granted, or withdrawn from the effect of the
grant, although the terms are often used indiscriminately
and given effect according to the obvious intent of the
parties. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182,
185.
Reservation must always be in favor of and for benefit of
grantor, whereas exception is mere exclusion from grant,
of some interest which may be vested in grantor or out-
standing in another; reservation reserves to grantor some
new thing, either issuing out of or incident to thing grant-
ed, while exception in deed is clause exempting from oper-
ation thereof and retaining in grantor title to some part of
the thing granted or excepting some part of thing granted,
title to which is at the time in another. Klein v. Humble
Oil & Refining Co., Tex.Civ.App., 67 S.W.2d 911, 915.
Reservation reserves to grantor some new interest out of
thing granted, while exception excludes from operation of
grant some existing part of estate. Petty v. Griffith, Mo.,
165 S.W.2d 412, 414; U. S. v. 1,010.8 Acres, More or Less,
Situate in Sussex County, Del., D.C.Del., 56 F.Supp. 120,
128.
The terms "reservation" and "exception" are frequently
used as interchangeable for synonymous terms. Nelson v.
Bacon, 113 Vt. 161, 32 A.2d 140, 145; Murphy v. Sunset
Hills Ass'n, 243 Wis. 139, 9 N.W.2d 613, 615; Meaning in-
tended must be determined by reference to subject matter
and surrounding circumstances. Federal Land Bank of
New Orleans v. Cooper, 190 Miss. 490, 200 So. 729, 730, 731;
Duus v. Town of Ephrata, 14 Wash.2d 426, 128 P.2d 510,
511; Parties' intention, not language used, is dominating
factor in determining whether provision is reservation or
exception. Goss v. Congdon, 114 Vt. 155, 40 A.2d 429, 430;
Technical meaning will yield to the manifest intent. Jen-
sen v. Sheker, 231 Iowa 240, 1 NtW.2d 262, 267; Technical
misnomer does not operate to defeat attempted reserva-
tion or exception. Clark v. Pauley, 291 Ky. 637, 165 S. W.
2d 161, 162; It has been also said that there is a diversity
between an exception and a saving, for an exception ex-
empts clearly, but a saving goes to the matters touched,
and does not exempt. Plowd. 361. Ogden v. Straus Bldg.
Corporation, 187 Wis. 232, 202 N.W. 34, 44; Haymaker v.
Windsor Reservoir & Canal Co., 81 Colo. 168, 254 P. 768,
770; Central Bank & Trust Co. v. Wyatt, 189 N.C. 107, 126
S.E. 93, 94; Greenspan v. Yaple, 194 N.Y.S. 658, 659, 201
App. Div. 575.
Statutory Law
An exception in a statute is a clause designed
to reserve or exempt some individuals from the
general class of persons or things to which the
language of the act in general attaches. People
v. Bailey, 103 Misc. 366, 171 N.Y.S. 394, 397.
An exception differs from an explanation, which, by the
use of a videlicet, proviso, etc., is allowed only to explain
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doubtful clauses precedent, or to separate and distribute
generals into particulars. Cutler v. Tufts, 3 Pick., Mass.,
272.
An "exception" exempts absolutely from the operation of
the statute, while a "proviso" generally defeats operation
of statute conditionally. Oregon Liquor Control Com-
mission v. Coe, 163 Or. 646, 99 P.2d 29, 31; People v.
Thursam, City Ct., 23 N.Y.S.2d 706, 710, 713.
The office of an "exception" in a statute is to except
something from the operative effect of a statute or to
qualify or restrain the generality of the substantive en-
actment to which it is attached, and it is not necessarily
limited to the section of the statute immediately following
or preceding. Gatliff Coal Co. v. Cox, C.C.A.Ky., 142 F.2d
876, 882.
Two statutes relating to same subject must be read to-
gether, and provisions of one having special application to
particular subject will be deemed an "exception" to other
statute general in its terms. Eagleton v. Murphy, 348 Mo.
949, 156 S.W.2d 683, 685, 138 A.L.R. 749.
Zoning
An "exception" in zoning ordinance is one al-
lowable where conditions detailed therein as those
on which exception may be permitted exist. Ap-
plication of Devereux Foundation, 351 Pa. 478, 41
A.2d 744, 746.
Exceptions may be treated as a legislative process, con-
ditions for which must be found in the zoning ordinance
and may not be varied, and variances may be treated as
judicial function through appeals from administrative or-
ders, whereby literal enforcement of ordinance may be
disregarded. Stone v. Cray, 89 N.H. 483, 200 A. 517, 521.
EXCEPTION EN MASSE. An assignment in de-
fendant's amended motion for new trial that
"court erred in giving Instructions Nos. 1 to 10,
inclusive", is "exception en masse". Tugg v. State,
206 Ark. 161, 174 S.W.2d 374, 376.
EXCEPTION OF LACK OF CAPACITY TO
STAND IN JUDGMENT. Challenges authority of
plaintiff to institute and prosecute suit regardless
of whether plaintiff owns or has an interest in
the claim. It is usually resorted to where plain-
tiff is alleged to be under some disability or where
he sues through a representative who, it is alleged,
has no authority. Riche v. Ascension Parish
School Board, La.App., 200 So. 681, 685.
EXCEPTION OF MISJOINDER seeks to restrain
plaintiff's pursuit of the cause when there is pres-
ent another party whose liabilities or rights are
not connected with the exceptor. Henrichs v. New
Orleans Public Service, La.App., 179 So. 610.
EXCEPTION OF NO CAUSE OF ACTION ad-
dresses itself to sufficiency in law of the petition
and exhibits attached. Bartholomew v. Impastato,
La.App., 12 So.2d 700, 702.
EXCEPTION OF NO RIGHT OF ACTION chal-
lenges plaintiff's interest or right to assert cause
of action. McCain v. Le Blanc Bros., La.App., 10
So.2d 116, 118.
EXCEPTION OF WANT OF INTEREST or of "no
right of action" is afforded as means of challeng-
ing preliminarily either interest or right of plain-
tiff to assert cause of action and is not limited to
want of capacity in plaintiff as such to bring suit.
McCain v. Le Blanc Bros., La.App., 10 So.2d 116,
118.
EXCEPTIONAL CIRCUMSTANCES. -Peculiar ur-
gency, existed where death sentence was imposed,
or defendant had not been given a reasonable op-
portunity to prepare for trial, or the common-
wealth conceded belatedly, though not too late,
that its material evidence is perjured. Sharpe v.
Commonwealth of Kentucky, C.C.A.Ky., 135 F.2d
974, 977.
EXCEPTIS EXCIPIENDIS. Lat. With all neces.
sary exceptions.
EXCEPTOR. In old English law. A party who
entered an exception or plea.
EXCERPTA, or EXCERPTS. Extracts.
EXCESS. When a defendant pleaded to an action
of assault that the plaintiff trespassed on his land,
and he would not depart when ordered, whereupon
he, molliter manus imposuit, gently laid hands on
him, the replication of excess was to the effect
that the defendant used more force than neces-
sary. Wharton.
Degree or amount by which one thing or number ex-
ceeds another, and the remainder or the difference between
two numbers is the excess of one over the other. In re
Bunce's Estate, 100 Misc. 385, 165 N.Y.S. 426.
Statute providing that, if capital used or invested in
business of corporations includes borrowed capital in "ex-
cess" of capital stock, surplus and undivided profits, such
excess of borrowed capital shall be added to capital stock,
surplus and undivided profits as basis for computing fran-
chise tax, means that, if corporation uses any borrowed or
additional capital, such borrowed or additional capital
must be added to the other capital in order to form basis
for computing the tax. State v. Union Bldg. Corporation,
185 La. 598, 170 So. 7, 12.
EXCESS FEES of tax collector consist of sum re-
maining in collector's hands after deducting from
total of all lawful fees collected, his maximum
annual fees, his deputy hire, his official expenses
and one-fourth of remainder until such one-fourth
amounts to specified sum. American Indemnity
Co. v. Red River Nat. Bank in Clarksville, Tex.
Civ.App., 132 S.W.2d 473, 480.
EXCESS INSURANCE. No recovery for loss of
cotton which was insured under another policy
could be had except that recoverable as "excess
insurance," although the other policy also provid-
ed for its avoidance by other insurance, for, as
to such other policy, the litigated policy was not
"other" but merely "excess insurance." St. Paul.
Fire & Marine Ins. Co. v. Garza County Ware-
house & Marketing Ass'n, C.C.A.Tex., 93 F.2d 590,
592; Travelers Indemnity Co. v. State Automobile
Ins. Co., 67 Ohio App. 457, 37 N.E.2d 198, 200.
Where fire and theft policy issued to conditional seller
of truck contained indorsement against accidental collision
occurring after insured had repossessed truck, and policy
provided that such insurance was excess insurance where
any specific insurance existed for benefit of insured, when
seller later repossessed truck, insurance taken by seller
became "excess insurance." Fageol Truck & Coach Co. v.
Pacific Indemnity Co., 18 Ca1.2d 731, 117 P.2d 661, 669.
Where materials which belonged to owners who carried
fire insurance covering merchandise while in possession of
contractors, were sent to contractors to be made into fin-
ished garments, fire policies of contractors covering mer-
chandise held in trust but excluding property otherwise
specifically insured, provided only "excess insurance" in
accordance with terms thereof, as to goods in possession
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EXCESS
of contractors who had insured themselves as bailees. Gor-
don v. Franklin Fire Ins. Co. of Philadelphia, 262 App.Div.
328, 28 N.Y.S.2d 480, 482.
EXCESS OF JURISDICTION. A case in which
court has initially proceeded properly within its
jurisdiction but steps out of jurisdiction in mak-
ing of some order or in the doing of some judi-
cial act. Olson v. District Court of Salt Lake
County, 93 Utah, 145, 71 P.2d 529, 534, 112 A.L.R.
438. Act within judge's general power is unau-
thorized in particular case. Beckwith v. McAlis-
ter, 165 S.C. 1, 162 S.E. 623, 628; Carter v. Mit-
chell, 225 Ala. 287, 142 So. 514, 517; In re Knox'
Estate, 52 Cal.App.2d 338, 126 P.2d 108, 112. Acts
which exceed defined power of court in any in-
stance. Abelleira v. District Court of Appeal,
Third Dist., 17 Ca1.2d 280, 109 P.2d 942, 948, 132
A.L.R. 715.
A departure by a court from those recognized and es-
tablished requirements of law, however close apparent ad-
herence to mere form in method of procedure, which has
the effect of depriving one of a constitutional right, is an
"excess of jurisdiction." Wuest v. Wuest, 53 Cal.App.2d
339, 127 P.2d 934, 937.
EXCESS OR SURPLUS WATER. Mean simply
water which is flowing in stream in addition to
what may be termed adjudicated waters. Quigley
v. McIntosh, 88 Mont. 103, 290 P. 266, 268; Any
water not needed for reasonable beneficial uses of
those having prior rights is "excess or surplus
water". City Of. Pasadena v. City of Alhambra,
Cal., 207 P.2d 17;28.
EXCESSES. Spouse's gambling habits or extrav-
agances when carried , to excess, constitute "ex-
cesses" authorizing separation from bed and
board. Moore v. Moore, 192 La. 289, 187 So. 670,
,672.
EXCESSIVE. Greater than what is usual or prop-
er; overmuch; a general term for what goes be-
yond just measure or amount. Austin St. Ry. Co.
v. Oldham, Tex.Civ.App., 109 S.W.2d 235, 237.
Tending to or marked by excess, which is the
quality or state of exceeding the proper or rea-
sonable limit or measure. Railway Co. v. John-
ston, 106 Ga. 130, 32 S.E. 78; Morrow v. Missouri
Gas & Electric Service Co., 315 Mo. 367, 286 S.W.
106, 111.
EXCESSIVE ASSESSMENT. A tax assessment
grossly disproportionate as compared with other
assessments. Southern California Telephone Co.
v. Los Angeles County, 45 Cal.App.2d 111, 113 P.
2d 773, 776.
EXCESSIVE BAIL. Bail in a sum more than will
be reasonably sufficient to prevent evasion of the
law by flight or concealment; bail which is per se
unreasonably great and clearly disproportionate
to the offense involved, or shown to be so by the
special circumstances of the particular case. In
re Losasso, 15 Colo. 163, 24 P. 1080, 10 L.R.A. 847;
Ex parte Ryan, 44 Cal. 558.
The denial of bail is not necessarily "excessive bail",
although such denial may be in a particular case the equiv-
alent of excessive bail. People ex rel. Shapiro v. Keeper 'of
City Prison, Tombs, New York County, 265 App.Div. 474,
39 N :Y.S.2d 526, 531.
EXCESSIVE DAMAGES. See Damages.
EXCESSIVE DRUNKENNESS. Drunkenness is
excessive where a party is so far deprived of his
reason and understanding as to render him incap-
able of understanding character and consequenc-
es of his act. Taylor v. Koenigstein, 128 Neb. 809,
260 N.W. 544.
EXCESSIVE FINE OR PENALTY. Any fine or
penalty which seriously impairs the capacity of
gaining a business livelihood. C. F. Smith Co. v.
Fitzgerald, 270 Mich. 659, 259 N.W. 352.
EXCESSIVE OR INTEMPERATE USE OF IN-
TOXICANTS. In benefit certificate. Habitual in-
dulgence in intoxicating liquors to such extent as
to impair health or otherwise render insurance
risk more hazardous. Wising v. Brotherhood of
American Yeomen, ,132 Minn. 303, 156 N.W. 247,
248, Ann.Cas.1918A, 621.
EXCESSIVE OXIDATION. As used in product
patent for improvement in bleached and dyed furs
and the like, relate to what would occur if it was
attempted to effect oxidation, bleaching of a dark
skin with an ordinary bleach, such as strong hy-
drogen peroxide, without a protecting agent.
Steinfur Patents Corporation v. J. Meyerson, Inc.,
D.C.N.Y., 56 F.2d 372, 382.
EXCESSIVE SENTENCE. No sentence is exces-
sive which is within limits fixed by law. Bryant
v. State, 39 Ga.App. 26, 145 S.E. 911; State v.
Brackett, 218 N.C. 369, 11 S.E.2d 146, 149.
EXCESSIVE SPEED. Automobile's speed is "ex-
cessive" whenever it places car beyond driver's
control. Esponette v. Wiseman, 130 Me. 297, 155
A. 650, 653.
EXCESSIVE TAX. One that exceeds what the
tax would be if correctly calculated at the legal
rate on the valuation as finally fixed by the coun-
ty authorities. Pocomoke Guano Co. v. City of
New Bern, 172 N.C. 258, 90 S.E. 202, 203.
EXCESSIVE VERDICT. A verdict which is re-
sult of passion or prejudice. Babb v. Murray, 26
Cal.App.2d 153, 79 P.2d 159, 160.
The test of whether a verdict is `;excessive" is whether
the amount thereof is such as to shock the conscience of the
court. Scheidegger v. Thompson, Mo.App., 174 S.W.2d
216, 222.
EXCESSIVELY. To excess. Penn Mut. Life Ins.
Co. v. Nunnery, 176 Miss. 197, 167 So. 416, 419.
EXCESSIVELY INTOXICATED. Where one is so
intoxicated as to be so far deprived of his reason
and understanding as to render him incapable of
knowing the character and consequences of his
act. Keedick v. Brogan, 116 Neb. 339, 217 N.W.
583, 585.
EXCESSIVUM IN JURE REPROBATUR. EX-
CESSUS IN RE QUALIBET JURE REPROBATUR
COMMUNI. Co. Litt. 44. Excess in law is repre-
hended. Excess in anything is reprehended at
common law.
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EXCHANGE
EXCHANGE. To barter; to swap. Dairymen's
League Co-op. Ass'n v. Metropolitan Casualty Ins.
Co. of New York, Sup., 8 N.Y.S.2d 403, 412. To
part with, give or transfer for an equivalent.
Kessler v. United States, C.C.A.Pa., 124 F.2d 152,
154; Dairymen's League Co-op. Ass'n v. Metropoli-
tan Casualty Ins. Co. of New York, Sup., 8 N.Y.S.
2d 403, 412.
Act of giving or taking one thing for another. United
States v. Paine, D.C.Mass., 31 F.Supp. 898, 900; Kessler
v. United States, C.C.A.Pa., 124 F.2d 152, 154; contract by
terms of which specific property is given in consideration
of the receipt of property other than money. Capps v.
Mines Service, 175 Or. 248, 152 P.2d 414, 416; Mutual grant
of equal interests, the one in consideration of the other,
Hale v. Helvering, 66 App.D.C. 242, 85 F.2d 819, 821, 822;
mutual transfer of property other than for money although
one of parties may pay a sum of money in addition to
property, Law v. McLaughlin, D.C.Cal., 2 F.Supp. 601, 603;
transaction in which one piece of property, usually some-
thing other than money or its equivalent, is given in re-
turn for another piece of property, Hadley Falls Trust Co.
v. United States, C.C.A.Mass., 110 F.2d 887, 891; transfer
of property for other property, Helvering v. Nebraska
Bridge Supply & Lumber Co., C.C.A.8, 115 F.2d 288, 290;
transfer of property for property or some value other than
money, Burger-Phillips Co. v. Commissioner of Internal
Revenue, C.C.A.Ala., 126 F.2d 934, 936; transfers of en-
during interests and not such as must immediately be re-
conveyed in fulfillment of preconceived plan, Morgan v.
Helvering, C.C.A.2, 117 F.2d 334, 336.
An exchange is two sales. Robbins v. Pacific Eastern
Corporation, 8 Ca1.2d 241, 65 P.2d 42, 56.
The criterion in determining whether a transaction is
a sale or an exchange is whether there is a determination
of value of things exchanged, and if no price is set for
either property it is an "exchange". Gruver v. Commis-
sioner of Internal Revenue, C.C.A.4, 142 F.2d 363, 366.
The mutual transfers must be in kind, and any transac-
tion into which money enters, either as the consideration
or as a basis of measure is excluded. Hoovel v. State, 125
Tex.Cr.R. 545, 69 S.W.2d 104, 108; Trenton Cotton Oil
Co. v. C. I. R., C.C.A.6, 147 F.2d 33, 36.
Capital Assets
Reciprocal transfers. Helvering v. William
Flaccus Oak Leather Co., 313 U.S. 247, 61 S.Ct. 878,
880, 85 L.Ed. 1310; Harwick v. Commissioner of
Internal Revenue, C.C.A.8, 133 F.2d 732, 737.
Conveyance of mortgaged realty by mortgagor in con-
sideration of payment of past-due taxes thereon, Philips
v. Commissioner of Internal Revenue, C.C.A.3, 112 F.2d 721,
722.
Mortgagor's transfers of equity of redemption in prop-
erty which constituted a capital asset of mortgagor to
mortgagee in return for release of liability on accompany-
ing bond given to evidence or further secure the mortgage
debt. Stamler v. C. I. R., C.C.A.3, 145 F.2d 37, 39.
Commercial Law
A negotiation by which one person transfers to
another funds which he has in a certain place,
either at a price agreed upon or which is fixed by
commercial usage. Nicely v. Bank, 15 Ind.App.
563, 44 N.E. 572, 57 Am.St.Rep. 245; Iowa State
Say . Bank of Fairfield v. City Nat. Bank, 183
Iowa, 1347, 168 N.W. 148, 149, L.R.A.1918F, 169.
The process of settling accounts or debts between parties
residing at a distance from each other, without the inter-
vention of money, by exchanging orders or drafts, called
bills of exchange; the payment of debts in different places
by an exchange or transfer of credits. Webster, Dict.
The profit which arises from a maritime loan, when such
profit is a percentage on the money lent, considering it in
the light of money lent in one place to be returned in an-
other, with a difference in amount in the sum borrowed
and that paid, arising from , the difference of time and
place. The term is commonly used in this sense by French
writers. Hall, Emerig, Mar. Loans, 56n.
A public place where merchants, brokers, factors, etc.,
meet to transact their business.
Conveyancing
A mutual grant of equal interests, (in lands or
tenements,) the one in consideration of the other.
2 Bl.Comm. 323; Windsor v. Collinson, 32 Or. 297,
52 P. 26; Herring Motor Co. v. 2Etna Trust & Sav-
ings Co., 87 Ind.App. 83, 154 N.E. 29, 31; Balti-
more & 0. R. Co. v. Western Union Telegraph Co.,
D.C.N.Y., 241 F. 162, 169; Finke v. Boyer, 331 Mo.
1242, 56 S.W.2d 372.
Nontaxable Exchange
Elements are that property be transferred to a
corporation solely in exchange for stock or securi-
ties in corporation and that transferors imme-
diately after exchange be in control of corpora-
tion, through ownership of 80 per cent. of all vot-
ing stock and at least 80 per cent. of all other
classes of stock of corporation. Commissioner of
Internal Revenue v. Cement Investors, C.C.A.10,
122 F.2d 380, 383.
Personal Property Law
Exchange of goods is a commutation, transmu-
tation, or transfer of goods for other goods, as
distinguished from sale, which is a transfer of
goods for money. 2 Bl.Comm. 446; 2 Steph.
Comm. 120; Elwell v. Chamberlin, 31 N.Y. 624;
Cooper v. State, 37 Ark. 418; Preston v. Keene, 14
Pet. 137, 10 L.Ed. 387.
Exchange is a contract by which the parties
mutually give, or agree to give, one thing for an-
other, neither thing, or both things, being money
only.
The distinction between a sale and exchange of property
is rather one of shadow than of substance. In both cases
the title to property is absolutely transferred; and the
same rules of law are applicable to the transaction, wheth-
er the consideration of the contract is money or by way of
barter. It can make no essential difference in the rights
and obligations of parties that goods and merchandise are
transferred and paid for by other goods and merchandise
instead of by money, which is but the representative of
value or property. Com. v. Clark, 14 Gray, Mass., 367.
Stock and Securities
To exchange one security for a different securi-
ty of some kind or for other property or rights.
Mertz v. H. D. Hudson Mfg. Co., 194 Minn. 636,
261 N.W. 472.
Plan whereby preferred stock was issued in exchange
for half of common stock held by voting trustees and oth-
er half was split up on basis of two for one constituted a
genuine "exchange" of common stock for preferred stock
in pursuance of a plan of "recapitalization". Bass v. Com-
missioner of Internal Revenue, C.C.A.1, 129 F.2d 300, 307.
Where holder of nearly all of . a corporation's stock de-
livered securities to corporation, gave corporation his
check in payment of preferred stock,_and-received from
corporation its check in payment of his securities, and
checks, which were simultaneously deposited, cancelled
each other almost entirely, transaction was exchange.
Louis W. Gunby, Inc., v. Helvering, 74 App.D.C. 185, 122
F.2d 203, 206.
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EXCHANGE
For "Arbitration of Exchange," "Bill of Ex-
change," "Dry Exchange," "First of Exchange,"
and "Owelty of Exchange," see those titles.
EXCHANGE BROKER. One who negotiates bills
of exchange drawn on foreign countries or on
other places in the same country; one who makes
and concludes bargains for others in matters of
money or merchandise. Little Rock v. Barton, 33
Ark. 444; Portland v. O'Neill, 1 Or. 219.
EXCHANGE OF LIVINGS. In ecclesiastical law.
This is effected by resigning them into the bishop's
hands, and each party being inducted into the
other's benefice. If either die before both are in-
ducted, the exchange is void.
EXCHANGED means a complete divestment of
property. Lord v. Smith, 293 Mass. 555, 200 N.E.
547, 550.
EXCHEQUER. That department of the English
government which has charge of the collection of
the national revenue; the treasury department.
It is said to have been so named from the chequered
cloth, resembling a chess-board, which anciently covered
the table there, and on which, when certain of the king's
accounts were made up, the sums were marked and scored
with counters. 3 Bl.Comm. 44.
For "Court of Exchequer" and "Court of Ex-
chequer Chamber," see those titles.
EXCHEQUER BILLS. Bills of credit issued in
England by authority of parliament. Brande.
Instruments issued at the exchequer, under the authority,
for the most part,- of acts of parliament passed for the
purpose, and containing an engagement on the part of the
government for repayment of the principal sums advanced
with interest. 2 Steph.Comm. 586. See Briscoe v. Bank of
Kentucky, 11 Pet. 328, 9 L.Ed. 709.
EXCHEQUER DIVISION. A division of the Eng-
lish high court of justice, to which the special
business of the court of exchequer was specially
assigned by section 34 of the judicature act of
1873. Merged in the queen's bench division from
and after 1881, by order in council under section
31 of that act. Wharton.
EXCISE. An inland imposition, paid sometimes
upon the consumption of the commodity, and fre-
quently upon the retail sale. 1 Bl.Comm. 318;
Patton v. Brady, 184 U.S. 608, 22 S.Ct. 493, 46 L.
Ed. 713; Portland Bank v. Apthorp, 12 Mass. 256.
An excise has been defined as meaning tribute, custom,
tax, tollage, or assessment, a fixed absolute and direct
charge laid on merchandise, products, or commodities
without any regard to amount of property belonging to
those on whom it may fall, or to any supposed relation be-
tween money expended for a public object and a special
benefit occasioned to those by whom the charge is to be
paid. In re Opinion of the Justices, 282 Mass. 619, 186 N.
E. 490, 491.
An excise is an impost for a license to pursue certain
callings or to deal in special commodities or to exercise
particular franchises. East Ohio Gas Co. v. Tax Com-
mission of Ohio, D.C.Ohio, 43 F.2d 170, 172; any tax not
falling within classification of poll or property tax, Die-
fendorf v. Gallet, 51 Idaho 619, 10 P.2d 307, 312; any tax
which is not directly on property or the rents or incomes
from real estate, Anne Arundel County Com'rs v. English,
182 Md. 514, 35 A.2d 135, 141; duties laid on manufacture,
sale, or consumption of commodities, or upon certain call-
ings or occupations, In re City of Enid, 195 Okl. 365, 158
P.2d 348, 350, 159 A.L.R. 358; every form of charge im-
posed by public authority on performance of act, enjoy-
ment of privilege, or engagement in occupation, Idaho
Gold Dredging Co. v. Balderston, 258 Idaho 692, 78 P.2d
105, 112; every form of taxation which is not laid directly
on persons or property. Gila Meat Co. v. State, 35 Ariz.
194, 276 P. 1, 2; Lutz v. Arnold, 208 Ind. 480, 193 N.E. 840;
public charges on subjects other than manufacture and sale
of commodities, such as licenses to pursue particular call-
ings, franchises of corporations and particularly the fran-
chise of corporate existence, and inheritance or succession
of estates. Pollock v. Farmers' L. & T. Co., 158 U.S. 601,
15 S.Ct. 912, 39 L.Ed. 1108; Albert Pick & Co. v. Jordan,
169 Cal. 1, 145 P. 506, 513, Ann.Cas.1916C, 1237; Des
Moines Union Ry. Co. v. Chicago Great Western Ry. Co.,
188 Iowa, 1019, 177 N.W. 90, 9 A.L.R. 1557; Northern Cent.
Ry. Co. v. Fidelity Trust Co., 152 Md. 94, 136 A, 66, 68, 60
A.L.R. 558; Hattiesburg Grocery Co. v. Robertson, 126
Miss. 34, 88 So. 4, 5, 25 A.L.R. 748; something cut off from
price paid on sale of goods as contribution to government,
City of Louisville v. Churchill Downs, 267 Ky. 339, 102 S.
W.2d 10, 13; tax imposed on performance of act, engage-
ment in occupation, or, enjoyment of privilege, State v.
Fields, Ohio App., 35 N,E.2d 744, 747; tax laid on manu-
facture, sale, or consumption of commodities or upon li-
censes to pursue certain occupations or upon corporate
privileges. Alexander Theatre Ticket Office v. U. S., C.C.A.
N.Y., 23 F.2d 44, 46; City of De Land v. Florida Public
Service Co., .119 Fla. 804, 161 So. 735, 738.
An "excise tax" is often used as synonymous with
"privilege" or "license tax". Shannon v. Streckfus S'teant-
ers, 279 Ky. 649, 131 S.W.2d 833, 838.
The terms excise tax and privilege tax are synonymous.
American Airways v. Wallace, D.C.Tenn., 57 F.2d 877, 880.
English Law
The name given to the duties or taxes laid on
certain articles produced and consumed at home,
among which spirits have always been the most
important; but, exclusive of these, the duties on
the licenses of auctioneers, brewers, etc., and on
the licenses- to keep dogs, kill game, etc., are in-
cluded in the excise duties. Wharton.
Tax and Excise Distinguished
A tax imposed directly by Legislature without
assessment and measured by amount of business
done, income previously received, or by extent to
which privilege may have been enjoyed or exer-
cised by the taxpayer, irrespective of nature or
value of his assets or his investments in business,
is excise tax while assessed tax on valuation of
property is property tax. City of De Land v. Flori-
da Public Service Co., 119 Fla. 804, 161 So. 735,
738.
A "property tax" is a visitational tax and is the taking
of part of taxpayer's wealth, represented by property he
owns for needs of government, and is not an "excise tax"
for privilege of owning property for period of fiscal
year. Bemis Hardwood Lumber Co. v. Graham County, N.
C., 214 N.C. 167, 198 S.E. 843, 845.
A tax directly on property is a property tax; but a tax
is an excise tax where it is not a tax on property as such,
but on certain kinds of property, having reference to their
origin and their intended use. State ex rel. Porterie v. H.
L. Hunt, Inc., 182 La. 1073, 162 So. 777, 103 A.L.R. 9.
An excise tax is an inland impost on articles of manu-
facture or sale, and also upon licenses to pursue certain
trades, or to deal in certain commodities, and property
tax is a tax which is not a capitation tax or a direct tax
on land or personalty. Flynn, Welch & Yates v. State
Tax Commission, 38 N.M. 131, 28 P.2d 889, 891.
As usually used, "franchise tax" is tax on intangible
values inhering to business and added value given to
tangible property, being "ad valorem" as distinguished
from "excise" or "privilege" tax. State Tax Commission
v. Petroleum Exploration, 253 Ky. 119, 68 S.W.2d 777.
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EXCLUSIVE
If a mortgage registration tax is in effect upon the in-
strument itself, the tax is a "property tax", but if the tax
is imposed solely upon the privilege of registration, and
validity or use of the instrument is not affected by failure
to pay the tax, the tax is an "excise tax". Community
Public Service Co. v. James, Tex.Civ.App., 167 S.W.2d 588,
595.
Income tax is a "property tax" and not an "excise tax."
Jensen v. Henneford, 185 Wash. 209, 53 P.2d 607, 610.
The words "tax" and "excise," although often used as
synonymous, are to be considered as having entirely dist
tinct and separate significations, under Const.Mass. c. 1, §
1, art. 4. The former is a charge apportioned either among
the whole people of the state or those residing within cer-
tain districts, municipalities, or sections. It is required to
be imposed, so that, if levied for the public charges of
government, it shall be shared according to the estate, real
and personal, which each person may possess; or, if raised
to defray the cost of some local improvement of a public
nature, it shall be borne by those who will receive some
special and peculiar benefit or advantage which an ex-
penditure of money for a public object may cause to those
on whom the tax is assessed. An excise, on the other hand,
is of a different character. It is based on no rule of au-
portionment or equality whatever. It is a fixed, absolute,
and direct charge laid on merchandise, products, or com-
modities, without any regard to the amount of property
belonging to those on whom it may fall, or to any sup-
posed relation between money expended for a public object
and a special benefit occasioned to those by whom the
charge is to be paid. Oliver v. Washington Mills, 11 Allen,
Mass., 268.
EXCISE LAW. A law imposing excise duties on
specified commodities, and providing for the col-
lection of revenue therefrom. In a more restrict-
ed and more popular sense, a law regulating,
restricting, or taxing the manufacture or sale of
intoxicating liquors.
A statute requiring payment of license fee for operating
motor vehicle on state highway for hire is an "excise tax
measure" rather than a "police measure." Comp. Laws
Nev. § 4437. Ziemer v. Babcock & Wilcox Co., D.C.Nev.,
22 F.Supp. 384, 385.
EXCISE LIEU PROPERTY TAX. Tax on gross
premiums received and collected by designated
classes of insurance companies held "excise lieu
property tax." United Pacific Ins. Co. v. Bakes,
57 Idaho 537, 67 P.2d 1024, 1029.
EXCLUSA. In old English law. A sluice to carry
off water; the payment to the lord for the benefit
of such a sluice. Cowell.
EXCLUSION. Denial of entry. Ex parte Do-
mingo Corypus, D.C.Wash., 6 F.2d 336.
"Exclusions" are things barred and not admitted. Ray-
mond v. Great American Indemnity Co., 86 N.H. 93, 163
A. 713, 716.
EXCLUSION, RULE OF. A witness, whether a
party to the cause or not, may not testify as to
his uncommunicated intent, purpose or motive.
Occidental Life Ins. Co. of Cal. v. Nichols, 97 So.2d
879, 885, 266 Ala. 521. This rule applies even
though witness' intent or state of mind is ma-
terial to the issue. McCain v. City of Montgomery,
92 So.2d 678, 681, 38 Ala.App. 568.
EXCLUSIVE. Appertaining to the subject alone,
not including, admitting, or pertaining to any
others. Fellows v. Seymour, 171 Misc. 833, 13 N.Y.
S.2d 803, 805. Sole. State v. Bridges, 246 Ala. 486,
21 So.2d 316, 319. Shutting out; debarring from
interference or participation; vested in one person
alone.
Black's Law Dictionary Revised 4th Ed.--43
The term "exclusive" as used to define quantity of con-
trol of offending agency for res ipsa loquitur to apply
means that control must be exclusive as against all who
do not have a concurrent joint control. Frenkil v. John-
son National Retailers Mut. Ins. Co., 175 Md. 592, 3 A.2d
479, 485.
EXCLUSIVE AGENCY. A contract to give an
"exclusive agency" to deal with property is or-
dinarily interpreted as not precluding competition
by the principal generally, but only as precluding
him from appointing another agent to accomplish
the result. Navy Gas & Supply Co. v. Schoech,
105 Colo. 374, 98 P.2d 860, 861, 863, 126 A.L.R. 1225.
The grant of an "exclusive agency to sell," that is. the
exclusive right to sell the products of a wholesaler in a
specified territory, ordinarily is interpreted as precluding
competition in any form within designated area. Navy Gas
& Supply Co. v. Schoech, 105 Colo. 374, 98 P.2d 860, 861, 126
A. L. R. 1225.
Relationship such as that created by contract between
manufacturer and sole distributors within specified terri-
tory for outright sales to distributors who established re-
tail prices. Stratton & Terstegge Co. v. Stiglitz Furnace
Co., 258 Ky. 678, 81 S.W.2d 1, 3.
EXCLUSIVE AGENCY CONTRACT means that
owner will not sell property through any other
agency. Torrey & Dean v. Coyle, 138 Or. 509, 7
P.2d 561, 562,
EXCLUSIVE CONTROL. The "exclusive control"
of thing causing accident, applies to right of con-
trol of instrumentality causing injury. Gerhart
v. Southern California Gas Co., 56 Cal.App.2d 425,
132 P.2d 874, 877.
As used in statute giving city exclusive control of school
system, means control to exclusion of control exercised by
county or state over other types of independent school dis-
tricts authorized by school laws. Temple Independent
School Dist. v. Proctor, Tex.Civ.App., 97 S.W.2d 1047, 1054.
EXCLUSIVE JURISDICTION. These words pre-
clude idea of co-existence, and mean possessed to
exclusion of others. Dunn Const. Co. v. Craig, 191
Miss. 682, 2 So.2d 166, 171.
The words "exclusive jurisdiction" when used in statutes
with respect to inferior criminal courts were only intended
to define jurisdiction of inferior criminal courts established
thereby as between themselves. People ex rel. Kawiecki
v. Carhart, 170 Misc. 894, 13 N.Y.S.2d 293, 294.
Under statute giving United States District Courts "ex-
clusive jurisdiction" of violations of Securities Exchange
Act, all criminal or civil proceedings for violations of the
act must be brought in such courts. Wright v. Securities
and Exchange Commission, C.C.A.2, 112 F.2d 89, 95.
EXCLUSIVE LICENSE is permission to do thing
and contract not to give leave to any one else to
do same thing. Overman Cushion Tire Co. v.
Goodyear Tire & Rubber Co., C.C.A.N.Y., 59 F.2d
998, 999.
A license which binds licensor not to enlarge thereafter
the scope of other licenses already granted, or increase the
number of licenses, is an "exclusive license", Mechanical
Ice Tray Corporation v. General Motors Corporation, C.C.
A.N.Y., 144 F.2d 720, 725.
EXCLUSIVE LICENSEE. One granted exclusive
right and license to use, manufacture, and sell
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EXCLUSIVE
patented article. Deitel v. Chisholm, C.C.A.N.Y.,
42 F.2d 172, 173. One having exclusive right to
use patented method and apparatus in designated
territory. Paul E. Hawkinson Co. v. Cornell, C.
C.A.Va., 112 F.2d 396, 398.
EXCLUSIVE MOVING PICTURE RIGHTS. Grant-
ed by author in book held to include technical im
provements in motion pictures developed during
license. L. C. Page & Co. v. Fox Film Corpora-
tion, C.C.A.N.Y., 83 F.2d 196, 199.
EXCLUSIVE OF ANY OUT BUILDINGS as used
in covenant that within restricted area, no resi-
dence should be erected, "actual bona fide cost" of
which "exclusive of any outbuildings" should be
less than $10,000, meant that no buildings other
than the residence could or should be considered.
Dillingham v. Kahn, 188 Ark. 759, 67 S.W.2d 735.
EXCLUSIVE OF INTEREST AND COSTS as used
in statute defining court's pecuniary jurisdiction,
refers to interest accrued before filing of com-
plaint, not that accruing after suit was brought.
Athan v. Hartford Fire Ins. Co., C.C.A.N.Y., 73 F.
2d 66, 67.
EXCLUSIVE ORIGINAL JURISDICTION IN ALL
CASES. Constitutional provision, giving circuit
court "exclusive original jurisdiction in all cases
in equity", established in circuit court exclusive
jurisdiction in all cases in equity involving matters
which were of exclusive equity jurisdiction under
the common law. In re Niernsee's Estate, 147 Fla.
388, 2 So.2d 737, 739.
EXCLUSIVE OWNERSHIP. Ownership free from
any kind of legal or equitable interest in any one
else. U. S. Casualty Co. v. Timmerman, 118 N.J.
Eq. 563, 180 A. 629.
EXCLUSIVE POSSESSION. Possession may be
"exclusive" so as to entitle possessor to title by ad-
verse possession, notwithstanding that the land
is subject to exercise of easement by private par-
ty. Young v. City of Lubbock, Tex.Civ.App., 130
S.W.2d 418, 420.
Defendant, if in actual adverse open and notorious pos-
session of land, had exclusive possession, visible to another
accepting mortgage on premises sought to be foreclosed.
Whittaker v. Farmers' Nat. Bank of Somerset, 237 Ky.
596, 36 S.W.2d 18, 19.
Exclusive possession by adverse possessor means that ad-
verse possessor must show an exclusive dominion over the
land and an appropriation of it to his own use and benefit.
Vernon's Ann.Civ.St. art. 5510. W. T. Carter & Bro. v.
Holmes, 131 Tex. 365, 113 S.W.2d 1225, 1226.
Under lease providing that lessor should give exclusive
possession which was defined to include consent agreements
signed by lienholder satisfactory to lessee, lessor whose
mortgage was in default did not comply with lease require-
ment by tendering a consent agreement from a company
which agreed to refinance the mortgage. Fox Realty Co. v.
Montgomery Ward & Co., C.C.A.Ind., 124 F.2d 710, 712,
713.
EXCLUSIVE POWER. If special power permits
donee to bar one or more members of class from
receiving portion of property it is "exclusive".
Moore v. Emery, 137 Me. 259, 18 A.2d 781, 788, 792.
Power upon specified condition to appoint by will such
full-blood relations of donor to take estate as donee might
designate held exclusive power. In re Skidmore's Estate,
148 Misc. 569, 266 N.Y.S. 312.
Under will giving testator's daughters power to dispose
of principal of trusts created in their favor, provided it be
bequeathed to testator's descendants, where testator's gen-
eral intent was that property should be kept in the family,
but that his children should share equally, power of ap-
pointment was exclusive. Moore v. Emery, 137 Me. 259, 18
A.2d 781, 788, 792.
EXCLUSIVE PRIVILEGE or FRANCHISE. A
statute does not grant an "exclusive" privilege or
franchise, unless it shuts out or excludes others
from enjoying a similar privilege or franchise.
Sunnyside Land & Investment Co. v. Bernier, 119
Wash. 386, 205 P. 1041, 1042, 20 A.L.R. 1261; Toten.
v. Stuart, 143 Va. 201,129 S.E. 217, 218.
EXCLUSIVE REMEDY. Where a statute creates
a new right or imposes a new duty or liability,
unknown to the common law, and gives a remedy
for its enforcement, the remedy prescribed is "ex-
clusive". Kosicki v. S. A. Healy Co., 312 Ill.App.
307, 38 N.E.2d 525, 528; Kosicki v. S. A. Healy Co.,
380 Ill. 298, 44 N.E.2d 27, 29.
Statute declaring right to compensation under Compensa-
tion Law exclusive remedy of employee injured by fellow
employee means that injured employee suing fellow em-
ployee without having elected to take compensation under
such law loses remedy against employer. Hall v. Hill, 158
Misc. 341, 285 N.Y.S. 815.
Statute providing method of recovery does not furnish
exclusive remedy unless its terms indicate an intent to
make statutory remedy exclusive. Kosicki v. S. A. Healy
Co., 312 III.App. 307, 38 N.E.2d 525, 528.
EXCLUSIVE RIGHT. An exclusive right is one
which only the grantee thereof can exercise, and
from which all others are prohibited or shut out.
By "exclusive right" essential to a right of way by pre-
scription, the law means that the right should not depend
for its enjoyment upon a similar right in others; it must
be exclusive as against the right of the community at
large. Downie v. City of Renton, 162 Wash. 181, 298 P.
454, 457.
The word "exclusive," as used in deed granting exclusive
right to erect and maintain poles with wires meant that
the right was exclusive of grantor, not exclusive in grantee,
American Telephone & Telegraph Co. of Massachusetts v.
McDonald, 273 Mass. 324, 173 N.E. 502, 503.
EXCLUSIVE USE. As used in law authorizing
registration of trade-marks, means exclusive use
not only of specific mark but also any other con-
fusingly similar mark or term. McKesson & Rob-
bins v. Charles H. Phillips Chemical Co., C.C.A.
Conn., 53 F.2d 1011.
Exclusive use does not mean that no one may or does
not use way except claimant of easement, but means only
that claimant's right to do so does 'not depend on like right
in others, Rush v. Collins, 366 Ill. 307, 8 N.E.2d 659, 662.
Seminary property is fairly to be regarded as in "ex-
clusive use" for educational purposes. Trustees of Phillips
Exeter Academy v. Exeter, 90 N.H. 472, 27 A.2d 569, 591.
EXCLUSIVELY. Apart from all others. Lee v.
Gulf Oil Corporation, 148 Fla. 612, 4 So.2d 868, 870,
871; People ex rel. Divico v. Adams, 264 App.Div.
315, 35 N.Y.S.2d 453, 455; Only, Lee v. Gulf Oil
Corporation, 148 Fla. 612, 4 So.2d 868, 870, 871;
Standard Oil Co. of Texas v. State, Tex.Civ.App.,
142 S.W.2d 519, 521, 522, 523. Purely. Baptist
Memorial Hospital v. Couillens, 176 Tenn. 300, 140
S.W.2d 1088, 1092. Solely. Provident Life & Acci-
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EXCUSABLE
dent Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 S.
W.2d 292, 296; Stuart v. Occidental Life Ins. Co.,
156 Or. 522, 68 P.2d 1037, 1044. Substantially all or
for the greater part. Anoka County v. City of
St. Paul, 194 Minn. 554, 261 N.W. 588, 99 A.L.R.
1137. To the exclusion of all others; without ad-
mission of others to participation; in a manner to
exclude. Standard Oil Co. of Texas v. State, Tex.
Civ.App., 142 S.W.2d 519, 521, 522, 523. Wholly.
People ex rel. Divico v. Adams, 264 App.Div. 315,
35 N.Y.S.2d 453, 455; Baptist Memorial Hospital
v. Couillens, 176 Tenn. 300, 140 S.W.2d 1088, 1092.
EXCLUSIVELY FOR PUBLIC PURPOSES. It is
not essential to exemption from taxation under
provisions exempting from taxation public prop-
erty used "exclusively for any public purpose"
that all the property that is part of the utility
unit be used for public purposes. City of Toledo
v. Jenkins, 143 Ohio St. 141, 54 N.E.2d 656, 664, 665.
EXCLUSIVELY INTERSTATE. Transportation
of passengers by motor vehicles between points
within state over route lying partly outside state
held exclusively interstate. Conlin Bus Lines v.
Old Colony Coach Lines, 282 Mass. 498, 185 N.E.
350, 352.
EXCLUSIVELY OF ALL OTHER CAUSES. Mean
that, if accident is shown to be cause of injury
for which action is brought, insured can recover.
Williams v. General Accident Fire & Life Assur.
Corporation, Limited, of Perth, Scotland, 144 Kan.
755, 62 P.2d 856, 857.
EXCLUSIVELY USED. The phrase in provision
exempting from taxation properties exclusively
used for religious worship, for schools or for pur-
poses purely charitable, has reference to primary
and inherent as over against a mere secondary
and incidental use. Salvation Army v. Hoehn, Mo.,
354 Mo. 107, 188 S.W.2d 826, 830.
EXCOMMENGEMENT. Excommunication ( q.
v.). Co. Litt. 134a.
EXCOMMUNICATION. A sentence of censure
pronounced by one of the spiritual courts for of-
fenses falling under ecclesiastical cognizance.
It is described in the books as two-fold : (1) The lesser
excommunication, which is an ecclesiastical censure, ex-
cluding the party from the sacraments; (2) the greater,
which excludes him from the company of all Christians.
Formerly, too, an excommunicated man was under various
civil disabilities. He could not serve upon juries, or be a
witness in any court; neither could he bring an action to
recover lands or money due to him. These penalties are
abolished by St. 53 Geo. III. c. 127. 3 Steph.Comm. 721.
EXCOMMUNICATO CAPIENDO. In ecclesiasti-
cal law. A writ issuing out of chancery, founded
on a bishop's certificate that the defendant had
been excommunicated, and requiring the sheriff
to arrest and imprison him, returnable to the
king's bench. 4 Bl.Comm. 415; Bac. Abr. "Ex-
communication," E.
EXCOMMUNICATO DELIBERANDO. A writ to
the sheriff for delivery of an excommunicated
person out of prison, upon certificate from the
ordinary of his conformity to the ecclesiastical
jurisdiction. Fitzh. Nat. Brev. 63.
EXCOMMUNICATO INTERDICITUR OMNIS AC-
TUS LEGITIMUS, ITA QUOD AGERE NON P0-
TEST, NEC ALIQUEM CONVENIRE, LICET
IPSE AB ALIIS POSSIT CONVENIRI. Co. Litt.
133. Every legal act is forbidden an excommuni-
cated person, so that he cannot act, nor sue any
person, but he may be sued by others.
EXCOMMUNICATO RECAPIENDO. A writ com-
manding that persons excommunicated, who for
their obstinacy had been committed to prison, but
were unlawfully set free before they had given
caution to obey the authority of the church, should
be sought after, retaken, and imprisoned again.
Reg. Orig. 67.
EXCULPATE is employed in sense of excuse of
justification. State v. Langdon, 46 N.M. 277, 127
P.2d 875, 876.
EXCULPATION. In Scotland the law allows of
an "exculpation", by which the prisoner is suffered
before his trial to prove the thing to be impos-
sible. State v. Langdon, 46 N.M. 277, 127 P.2d 875,
876.
EXCULPATION, LETTERS OF. In Scotch law.
A warrant granted at the suit of a prisoner for
citing witnesses in his own defense.
EXCULPATORY. Clearing or tending to clear
from alleged fault or guilt; excusing. Moore v.
State, 124 Tex.Cr.R. 97, 60 S.W.2d 453.
EXCULPATORY CLAUSE. Such clause in favor
of a trustee in will implies that trustee has pow-
er which he purports to execute, and it exculpates
him where this power is exercised in good faith.
In re Wacht's Estate, Sur., 32 N.Y.S.2d 871, 897.
EXCUSABLE. Admitting of excuse or palliation.
As used in the law, this word implies that the act or
omission spoken of is on its face unlawful, wrong, or liable
to entail loss or disadvantage on the person chargeable, but
that the circumstances attending it were such as to con-
stitute a legal "excuse" for it, that is, a legal •reason for
withholding or foregoing the punishment, liability, or
disadvantage which otherwise would follow.
EXCUSABLE ASSAULT. One committed by ac-
cident or misfortune in doing any lawful act by
lawful means, with ordinary caution and without
any unlawful intent. People v. O'Connor, 82 App.
Div. 55, 81 N.Y.S. 555.
EXCUSABLE HOMICIDE. See Homicide.
EXCUSABLE NEGLECT. In practice, and parti-
cularly with reference to the setting aside of a
judgment taken against a party through his "ex-
cusable neglect," this means a failure to take the
proper steps at the proper time, not in conse-
quence of the party's own carelessness, inatten-
tion, or willful disregard of the process of the
court, but in consequence of some unexpected or
unavoidable hindrance or accident, or reliance on
the care and vigilance of his counsel or on promis-
es made by the adverse party. See 1 Bl. Judgm.
§ 340; Brothers v. Brothers, 71 Mont. 378, 230 P.
60, 61; Westbrook v. Rice, 28 N.D. 324, 148 N.W.
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EXCUSAT
827, 828; Boise Valley Traction Co. v. Boise City,
37 Idaho, 20, 214 P. 1037, 1038; Haas v. Scott, 115
Or. 580, 239 P. 202, 204.
EXCUSAT AUT EXTENUAT DELICTUM IN
CAPITALIBUS QUOD NON OPERATUR IDEM
IN CIVILIBUS, Bac. Max: r. 15. That may ex-
cuse or palliate a wrongful act in capital cases
which would not have the same effect in civil
injuries. See Broom, Max. 324.
EXCUSATIO. In the civil law. An excuse or rea-
son which exempts from some duty or obligation.
EXCUSATOR.
English law. An excuser.
Old German law. A defendant; he who utterly
denies the plaintiff's claim. Du Cange.
EXCUSATUR QUIS QUOD CLAMEUM NON OP-
POSUERIT, UT SI TOTO TEMPORE LITIGII
FUIT ULTRA MARE QUACUNQUE OCCASIONE.
Co. Litt. 260. He is excused who does not bring
his claim, if, during the whole period in which it
ought to have been brought, he has been beyond
sea for any reason.
EXCUSE. A reason alleged for doing or not
doing a thing. Worcester; State v. Weagley, 286
Mo. 677, 228 S.W. 817, 820; State v. Saffron, 143
Wash. 34, 254 P. 463. A matter alleged as a rea-
son for relief or exemption from some duty or
obligation.
That which is offered as a reason for being ex-
cused, or a plea offered in extenuation of a fault
or irregular deportment; it is that plea or state-
ment made by the accused which arises out of
the state of facts constituting and relied on as
the cause. State v. Craig, 161 S.C. 232, 159 S.E.
559, 560.
EXCUSS. To seize and detain by law.
EXCUSSIO.
Civil law. A diligent prosecution of a remedy
against a debtor; the exhausting of a remedy
against a principal debtor, before resorting to his
sureties. Translated "discussion" (q. v.).
Old English law. Rescue or rescous. Spelman.
EXEAT. A permission which a bishop grants to
a priest to go out of his diocese; also leave to go
out generally. For "Ne Exeat", see that title.
EXECUTE. To complete; to make; to perform;
to do; to follow out. Glover v. American Mort-
gage Corporation, Tex.Civ.App., 94 S.W.2d 1235,
1236.
To finish, accomplish, make complete, fulfill. To per-
form; obey the injunctions of.
To make; as to execute a deed, which includes signing,
sealing, and delivery; performance of all necessary for-
malities. Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123,
1130; White v. Hendley, 35 Cal.App. 267, 169 P. 710, 713;
Hathaway v. Cook, 258 Ill. 92, 101 N.E. 227, 228; Williams
v. Kidd, 170 Cal. 631, 151 P. 1, 8, Ann.Cas.1916E, 703. The
"execution" of a note involves not only the signing but the
delivery of the note. Kennedy & Parsons Co. v. Lander
Dairy & Produce Co., 36 Wyo. 58, 252 P. 1036, 1038, 51 A.
L.R. 315; Lynch v. Figge, 192 N.Y.S. 873, 876, 200 App.
Div. 92; Perko v. Rock Springs Commercial Co., 37 Wyo.
98, 259 P. 520, 522; The execution of a contract includes
performance of all acts necessary to render it complete as
an instrument. Hofgesang v. Silver, 223 Ky. 101, 3 S.W.2d
185, 186; To make and sign contract, Glick v. Daniel, 184
Ark. 576, 42 S.W.2d 1007, 1008.
To perform; carry out according to its terms; as to
execute a contract, or a writ. State v. Miller, 104 W.Va.
226, 139 S.E. 711, 712; Harrity v. Steers, 185 N.Y.S. 704,
195 App. Div. 11.
To fulfill the purpose of ; to obey; to perform the com-
mands of ; as to execute a writ.
A statute is said to execute a use where it transmutes
the equitable interest of the cestui que use into a legal es-
tate of the same nature, and makes him tenant of the land
accordingly, in lieu of the feoffee to uses or trustee, whose
estate, on the other hand, is at the same moment an-
nihilated. 1 Steph.Comm. 339.
Word "sign" as used in trial court's general oral charge
and in special written charge given at request of defendant
was synonymous with word "execute". Kinney v. Glenn,
29 Ala.App. 478, 198 So. 250, 253.
EXECUTED. Completed; carried into full ef-
fect; already done or performed; taking effect
immediately; now in existence or in possession;
conveying an immediate right or possession. The
opposite of executory.
A contract is "executed" by being signed. Mastin Realty
& Mining Co. v. Commissioner of Internal Revenue, C.C.A.
8, 130 F.2d 1003, 1005. A trust does not become fully "ex-
ecuted" until subject matter of it has been properly paid
over to beneficiaries. Harlan v. Gleason, 180 Md. 24, 22 A.
2d 579, 581. Act or course of conduct carried to completion.
Northwest Steel Rolling Mills v. Commissioner of Internal
Revenue, C.C.A.9, 110 F.2d 286, 290. Term imports idea
that nothing remains to be done. Pacific Finance Corpora-
tion v. Hendley, 119 Cal.App. 697, 7 P.2d 391, 393. Term
when applied to contract includes delivery and implies com-
plete contract. Smith v. School Dist. No. 1, Marshall
County, 187 Okl. 184, 102 P.2d 131, 134, 135. Term when
applied to deed includes the signing thereof. National
Fire Ins. Co. v. Patterson, 170 Okl, 593, 41 P.2d 645, 647.
Generally a jail sentence is "executed" only when the
convict has actually suffered the imprisonment. State ex
rel. Libtz v. Coleman, 149 Fla. 28, 5 So.2d 60, 61.
EXECUTED CONSIDERATION. A considera-
tion which is wholly past. 1 Pars. Cont. 391. An
act done or value given before the making of the
agreement.
EXECUTED CONTRACT. See Contract.
EXECUTED ESTATE. See Estate.
EXECUTED FINE. The fine sur cognizance de
droit, come ceo que it ad de son done; or a fine
upon acknowledgment of the right of the cog-
nizee, as that which he has of the gift of the
cognizor. Abolished by 3 & 4 Wm. IV. c. 74.
EXECUTED NOTE. Under Small Loan Act note
was not "executed" until it was both signed and
delivered. Trustees System Co. of Newark v.
Stoll, 13 N.J.Misc. 490, 179 A. 372, 373.
EXECUTED ORAL AGREEMENT. An oral
agreement is not "executed" unless it has been
fully performed by both parties. Walther v. Oc-
cidental Life Ins. Co., 40 Cal.App.2d 160, 104 P.2d
551, 554.
EXECUTED REMAINDER. See Remainder.
EXECUTED SALE. See Sale.
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EXECUTION
EXECUTED TRUST. See Trust.
EXECUTED USE. See Use.
EXECUTED WRIT. In practice. A writ carried
into effect by the officer to whom it is directed
The term "executed," applied to a writ, has been
held to mean "used." Amb. 61.
EXECUTIO. Lat. The doing or following up of
a thing; the doing a thing completely or thor-
oughly; management or administration.
In old practice. Execution; the final process in
an action.
EXECUTIO BONORUM. In old English law.
Management or administration of goods. Ad ec-
clesiam et ad amicos pertinebit executio bonor-
um, the execution of the goods shall belong to the
church and to the friends of the deceased. Bract.
fol. 60b.
EXECUTIO EST EXECUTIO JURIS SECUNDUM
JUDICIUM. 3 Inst. 212. Execution is the execu-
tion of the law according to the judgment.
EXECUTIO EST FINIS ET FRUCTUS LEGIS.
Co. Litt 289. Execution is the end and fruit of
the law.
EXECUTIO JURIS NON HABET INJURIAM. 2
Roll. 301. The execution of law does no injury.
EXECUTION. Carrying out some act or course
of conduct to its completion. Northwest Steel
Rolling Mills v. Commissioner of Internal Rev-
enue, C.C.A.9, 110 F.2d 286, 290. Completion of an
act. Domestic Finance Corporation v. Williams,
174 Misc. 227, 20 N.Y.S.2d 467, 469. Putting into
force, Greene v. Wheeler, C.C.A.Wis., 29 F.2d
468, 469. The completion, fulfillment, or perfect-
ing of anything, or carrying it into operation and
effect.
At common law, executions are said to be either final or
quousque; the former, where complete satisfaction of the
debt is intended to be procured by this process; the latter,
where the execution is only a means to an end, as where
the defendant is arrested on ca. sa.
The word cannot be stretched to include prescription;
the natural meaning of "execution" is "performance," in-
cluding excuses for performance. Wood & Selick v. Com-
pagnie Generale Transatlantique, C.C.A.N.Y., 43 F.2d 941,
942.
Where testatrix left residue of her estate to be divided
equally among named individuals, but provided that, if
any of those beneficiaries should be deceased at time of "ex-
ecution" of the will, their share "is" to revert to testatrix'
estate, the word "execution" had reference to time when
will should take effect and not to time when will was
signed. Central Nat. Bank v. Stevenson, 25 Del.Ch. 215,
16 A.2d 114, 115.
Writ of assistance is in the nature of an "execution."
Davis v. Federal Land Bank of Columbia, 217 N.C. 145,
7 S.E.2d 373, 376.
Attachment distinguished
Term "executions" as used in Code section dealing with
commissions which sheriff may charge in cases where
sheriff has collected a judgment on execution without mak-
ing a sale of the judgment debtor's property is sufficiently
broad to include attachment, Jones-Noland Drilling Co. v.
Bixby, 34 N.M. 413, 282 P. 382. 384.
Under an attachment, property of defendant is placed
in custody of law to await final determination of suit, and
the attachment is really a preliminary execution depend-
ent for its ultimate efficacy upon the rendering of a judg-
ment in plaintiff's favor; on the other hand, an "execu-
tion" is a remedy afforded by 4.w for the enforcement of
a judgment of the court. J. M. Radford Grocery Co. v.
Owenby, Tex.Civ.App., 34 S.W.2d 385, 387.
Criminal Law
The carrying into effect of the sentence of the law by the
infliction of capital punishment. 4 BI.Comm. 403; 4 Steph.
Comm. 470.
French Law
A method of obtaining satisfaction of a debt or claim by
sale of the debtor's property privately, ti. e., without judi-
cial process, authorized by the deed or agreement of the
parties or by custom; as, in the case of a stockbroker, who
may sell securities of his customer, bought under his in-
structions or deposited by him, to indemnify himself or
make good a debt. Arg.Fr.Merc.Law, 557.
Garnishment
Execution includes writ of garnishment. Buckley v. F.
L. Riley Mercantile Co., 155 Miss. 150, 124 So. 267.
Garnishee execution is an execution against property.
In re Howard Hotel Corporation, 150 Misc. 782, 270 N.Y.S.
259.
Garnishment after judgment "is execution" within stat-
ute providing that execution, shall only be issued from
court in which judgment is rendered. Though a garnish-
ment is not an execution, garnishment after execution is
practically an equitable execution. First Nat. Bank of
Cordell v. City Guaranty Bank of Hobart, 174 Okl. 545, 51
P.2d 573, 576.
Order of Sale
"Execution" in statute includes an order of sale. Bart-
lett Mortg. Co. v. Morrison, 183 Okl. 214, 81 P.2d 318, 322;
Blanscet v. Palo Duro Furniture Co., Tex.Civ.App., 68 S.
W.2d 527, 528.
Practice
The name of a writ issued to a sheriff, constable, or
marshal, authorizing and requiring him to execute the
judgment of the court. Raulerson v. Peeples, 81 Fla. 206,
87 So. 629, 630.
For "Attachment execution," see Attachment.
For "Body Execution," "Dormant Execution,"
"Equitable Execution," "General Execution,"
"Junior Execution" and "Special Execution," see
those titles.
For "Execution of Judgment or Decree," see
that title.
For "Testatum execution," see Testatum.
EXECUTION CREDITOR. See Creditor.
EXECUTION LIEN. An "execution lien" may be
created by service of execution, levy upon real
estate, and filing of a certificate of levy in the
proper office of county in which real estate is
located. Reconstruction Finance Corporation v.
Maley, C.C.A.Ill., 125 F.2d 131, 135.
EXECUTION OF INSTRUMENT. Execution in-
cludes signing, sealing, and delivering. Erie R.
Co. v. S. J. Groves & Sons Co., 111 N.J.L.
100, 166 A. 205, 207. Completion of instrument.
Domestic Finance Corporation v. Williams, 174
Misc. 227, 20 N.Y.S.2d 467, 469. Subscribing and
delivery of instrument. Miller v. Jansen, Cal.
App., 128 P.2d 97, 98.
Delivery is essential to complete execution of deed.
Barnes v. Aycock, 219 N.C. 360, 13 S.E.2d 611, 612.
Execution imports, includes or involves delivery. Miller
v. Jansen, 21 Ca1.2d 473, 132 P.2d 801, 802; .ivicCarthy Co.
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EXECUTION
v. Commissioner of Internal Revenue, C.C.A.9, 80 F.2d 618,
620; Stocks v. Inzer, 232 Ala. 482, 168 So. 877, 878.
Execution includes performance of all acts necessary to
render instrument complete and of every act required to
give instrument validity or to carry it into effect. North-
west Steel Rolling Mills v. Commissioner of Internal Rev-
enue, C.C.A.9, 110 F.2d 286, 290.
Execution of deed means making thereof, Turlington v.
Neighbors, 222 N.C. 694, 24 S.E.2d 648, 650.
Execution of instruments means making thereof, and
when spoken of deeds, it includes all acts such as signing,
sealing, and delivering, which are necessary to give effect
thereto. United States v. Peppa, D.C.Cal., 13 F.Supp. 669,
670.
Execution of prescription means preparation and delivery
by authorized person. U. S. v. Peppa, D.C.Cal., 13 F.Supp.
669.
"Execution" of written contract includes signing, un-
conditional delivery by promisor, and acceptance by prom-
isee. Coen v. American Surety Co. of New York, C.C.A.
Mo., 120 F.2d 393, 397.
Performance and completion of all of those formal acts
essential for mortgage's effectiveness. Southern Enter-
prises v. Foster, La.App., 12 So.2d 842, 844.
Signing, acknowledging, delivering and acceptance of
mortgage are essential to "execution" of mortgage. Illi-
nois Nat. Bank & Trust Co. v. Holmes, 311 Ill.App. 286, 35
N.E.2d 823, 825.
Term "execution" as employed in respect to
promissory note means both signing and delivery
of bill or note, and mere signing is insufficient.
In re Tynan's Estate, 142 Neb. 671, 7 N.W.2d 628,
630.
The signing and publication of a will.
The signing, sealing, and delivery of deeds. Turlington
v. Neighbors, 222 N.C. 694, 24 S.E.2d 648, 650.
Words "issuing" and "execution," used in statutes in re-
lation to passing of title by tax deed, are interchangeable
terms. Lance v. Smith, 123 Fla. 461, 167 So. 366, 369.
EXECUTION OF JUDGMENT OR DECREE.
"Execution" is putting into effect of final judg-
ment of court. Tice v. Tice, 208 Iowa 145, 224 N.
W. 571, 572.
As used in Code provision regarding right to demand
that nullity of judgment be declared unless defendant suf-
fered judgment to be executed, means the seizure of prop-
erty. Frank v. Currie, La.App., 172 So. 843, 848.
Execution embraces all appropriate means to execution
of judgment, Buckley v. F. L. Riley Mercantile Co., 155
Miss. 150, 124 So. 267.
Process to carry into effect decree or judgment is execu-
tion. Painter v. Berglund, 31 Cal.App.2d 63, 87 P.2d 360,
363; Miller v. London, 294 Mass. 300, 1 N.E.2d 198, 200.
Sometimes from the neglect of parties, or some other
cause, it became impossible to carry a decree into execu-
tion without the further decree of the court upon a bill
filed for that purpose. This happened generally in cases
where, parties having neglected to proceed upon the decree,
their rights under it became so embarrassed by a variety
of subsequent events that it was necessary to have the de-
cree of the court to settle and ascertain them. Such a bill
might also be brought to carry into execution the judg-
ment of an inferior court of equity, if the jurisdiction of
that court was not equal to the purpose; as in the case of
a decree in Wales, which the defendant avoided by flee-
ing into England. This species of bill was generally part-
ly an original bill, and partly a bill in the nature of an
original bill, though not strictly original. Story, Eq. P1
342; Daniell, Ch.Pr. 1429.
Statutory means provided for enforcement of judgment
requiring the payment of money is execution. Lupton v.
Edmundson, 220 N.C. 188, 16 S.E.2d 840, 841.
The last stage of a suit, whereby possession is obtained
of anything recovered. It is styled "final process," and
consists in putting the sentence of the law in force. 3 Bl.
Comm. 412. The carrying into effect of the sentence or
judgment of a court. U. S. v. Nourse, 9 Pet. 28, 9 L. Ed.
31; Griffith v. Fowler, 18 Vt. 394; Hurlbutt v. Currier,
68 N.H. 94, 38 A. 502.
Within statute providing for execution of judgment after
five years from its entry, "execution" is used in broad
sense of execution or carrying into effect by such means as
are provided by law for enforcement of various classes of
judgments. Bank of America N. T. & S. A. v. Katz, 45
Cal.App.2d 138, 113 P.2d 759, 760.
Writ of execution is a civil proceeding for enforcement
of a judgment against property. Lash v. Mann, 141 Ohio
St. 577, 49 N.E.2d 689, 691.
EXECUTION PAREE, In French law. A right
founded on an act passed before a notary, by
which the creditor may immediately, without cita-
tion or summons, seize and cause to be sold the
property of his debtor, out of the proceeds of
which to receive his payment. It imports a con-
fession of judgment, and is not unlike a warrant
of attorney. Code Proc. La. art. 732; 6 Toullier,
no. 208; 7 Toullier, no. 99.
EXECUTION SALE. A sale by a sheriff or other
ministerial officer under the authority of a writ
of execution which he has levied on property of
the debtor. Noland v. Barrett, 122 Mo. 181, 26
S.W. 692, 43 Am.St.Rep. 572; Norton v. Reardon,
67 Kan. 302, 72 P. 861, 100 Am.St.Rep. 459.
Sale under order in mortgage foreclosure proceeding is
sale on execution. Goslen v. Waddell Inv. Co., 145 Old.
269, 292 P. 362, 364.
Execution sales relate to sales under a writ of execution.
Peebler v. Olds, 56 Cal.App.2d 13, 132 P.2d 236, 237.
EXECUTION THEREOF. In ordinance provid-
ing that contractor should not have claim under
city contract unless controller certified that at
date of "execution thereof" sufficient amount
stood to credit of appropriation for contract,
words "execution thereof" mean date of certifica-
tion. Edwin E. Hallenbeck, Inc., v. Hadley, 312
Pa. 176, 167 A. 574, 575.
EXECUTIONE FACIENDA. A writ commanding
execution of a judgment. Obsolete. Cowell.
EXECUTIONE FACIENDA IN WITHERNAM-
IUM. A writ that lay for taking cattle of one
who has conveyed the cattle of another out of
the county, so that the sheriff cannot replevy
them. Reg. Orig. 82.
EXECUTIONE J1UDICII. A writ directed to the
judge of an inferior court to do execution upon a
judgment therein, or to return some reasonable
cause wherefore he delays the execution. Fitzh.
Nat. Brev. 20.
EXECUTIONER. The name given to him who
puts criminals to death, according -to their sen-
tence; a hangman.
EXECUTIVE. As distinguished from the legis-
lative and judicial departments of government,
the executive department is that which is charged
with the detail of carrying the laws into effect
and securing their due observance. The word
"executive" is also used as an impersonal desig-
nation of the chief executive officer of a state or
nation. In re Railroad Com'rs, 15 Neb. 679, 50
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N.W. 276; In re Davies, 168 N.Y. 89, 61 N.E. 118,
56 L.R.A. 855; State v. Denny, 118 Ind. 382, 21
N.E. 252, 4 L.R.A. 79.
Under constitutional provision dividing powers of gov-
ernment into the legislative, the executive, including the
administrative, and the judicial departments, the word "ad-
ministrative" is not used as synonymous with "executive".
Tucker v. State, 218 Ind. 614, 35 N.E.2d 270, 290.
Words "executive" and "administrative" may be used
as synonymous or interchangeable terms. Saint v. Allen,
169 La. 1046, 126 So. 548, 555.
EXECUTIVE ACT. "Executive" and "adminis-
trative" duties are such as concern the execution
of existing laws. People ex rel. Holvey v. Kapp,
355 Ill. 596, 189 N.E. 920, 923.
EXECUTIVE ADMINISTRATION, or MINIS-
TRY. A political term in England, applicable to
the higher and responsible class of public officials
by whom the chief departments of the govern-
ment of the kingdom are administered.
The number of these amounts to fifty or sixty persons.
Their tenure of office depends on the confidence of a ma-
jority of the house of commons, and they are supposed to
be agreed on all matters of general policy except such as
are specifically left open questions. Cab.Lawy.
EXECUTIVE AGENCY. These words include col-
lector and Secretary of Treasury. U. S. v. Para-
mount Publix Corporation, Cust. & Pat. App., 73
F.2d 103, 105; Selective Training and Service Act
boards. United States ex rel. Beers v. Selective
Training and Service Local Board No. 1, Rock
County, Wis., D.C.Wis., 50 F.Supp. 39, 40. Works
Projects Administration. Thomason v. Works
Projects Administration, C.C.A.Idaho, 138 F.2d 342,
343.
EXECUTIVE AGENT. President of a bank is but
the "executive agent" of board of directors. Ex
parte Lamberth, 242 Ala. 165, 5 So.2d 622, 623.
EXECUTIVE AUTHORITY. Petition for referen-
dum filed with clerk is filed with executive author-
ity of municipality. State ex rel. Tietje v. Collett,
138 Ohio St. 425, 35 N.E.2d 568, 570. State ex rel.
City of Middletown v. City Commission of City of
Middletown, 140 Ohio St. 368, 44 N.E.2d 459, 463.
EXECUTIVE CAPACITY. Duties in such capacity
relate to active participation in control, supervi-
sion, and management of business. Arkansas
Amusement Corporation v. Kempner, C.C.A.Ark.,
57 F.2d 466, 473; Wilkinson v. Noland Co., D.C.
Va., 40 F.Supp. 1009, 1012.
EXECUTIVE EMPLOYEES. Persons whose du-
ties include some form of managerial authority,
actually directing the work of other persons.
Stanger v. Glenn L. Martin Co., D.C.Md., 56 F.
Supp. 163, 166; persons whose duties relate to ac-
tive participation in control, supervision and man-
agement of business, or who administer affairs,
or who direct, manage, execute or dispense. Stein-
er v. Pleasantville Constructors, 181 Misc. 798, 46
N.Y.S.2d 120, 123.
The term executive employee carries the idea of super-
vision of or control over ordinary employees. Ralph
Knight, Inc., v. Mantel, C.C.A.Mo., 135 F.2d 514, 517.
EXECUTIVE FUNCTIONS have relation to man-
agement of all or some part of a business and im-
ply activity. Arkansas Amusement Corporation v.
Kempner, 182 Ark. 897, 33 S.W.2d 42, 43.
General charge, control, and conduct of taxation is "ex-
ecutive function." In re Opinion of the Justices, 87 N.H.
492, 179 A. 357, 110 A.L.R. 819.
EXECUTIVE OFFICER. An officer of the execu-
tive department of government; one in whom re-
sides the power to execute the laws; one whose
duties are to cause the laws to be executed and
obeyed. People v. Salsbury, 134 Mich. 537, 96 N.
W. 939; Petterson v. State, Tex.Cr.App., 58 S.W.
100; Mekota v. State Board of Equalization and
Assessment, Neb., 19 N.W.2d 633, 640. An adminis-
trative officer. Sheely v. People, 54 Colo. 136, '129
P. 201, 203.
Officers who are neither judicial nor legislative are ex-
ecutive officers. Spivey v. State, 69 Okl.Cr. 337, 104 P.2d
263, 277; -State v. Emory, 55 Idaho 649, 46 P.2d 67, 68.
One vested with power to carry out obligations intrusted
to him and charged with administrative duties relative to
executing, performing, and carrying into effect purposes of
his employment. State Automobile Mutual Ins. Ass'n of
Columbus v. Friedman, 122 Ohio St. 334, 171 N.E. 591, 592.
One who assumes command or control and directs course
of business, or some part thereof, and who outlines duties
and directs work of subordinate employees. Arkansas
Amusement Corporation v. Kempner, 182 Ark. 897, 33 S.W.
2d 42, 43.
Cashier of bank is executive officer. Mays v. Board of
Com'rs of Creek County, 164 Okl. 231, 23 P.2d 664.
President and vice president of corporation are executive
officers. Emmerglick v. Philip Wolf, Inc., C.C.A.N.Y., 138
F.2d 661, 662.
EXECUTIVE ORDER INDIAN RESERVATION
is reservation created by order of Chief Executive
withdrawing land within its boundaries from set-
tlement or making other disposition of it under
public land laws of United States. Santa Rita Oil
& Gas Co. v. Board of Equalization, 101 Mont. 268,
54 P.2d 117, 122.
EXECUTIVE PARDON is an executive act of
grace exempting an individual from punishment
for a crime he has committed. People ex rel.
Prisament v. Brophy, 287 N.Y. 132, 38 N.E.2d 468,
470, 139 A.L.R. 667. See Pardon.
EXECUTIVE POWERS AND DUTIES on which
Supreme Court may advise Governor, means a du-
ty appertaining to the execution of the laws as
they exist. In re Advisory Opinion to Governor,
154 Fla. 866, 19 So.2d 370, 371.
The "executive power" vested in the Governor by the
Constitution is the power to "execute" the laws, that is, to
carry them into effect, as distinguished from the power to
make the laws and the power to judge them. Tucker v.
State, 218 Ind. 614, 35 N.E.2d 270, 291.
EXECUTIVE SALARIES. Means salaries of of-
ficers only. Leonard v. S. G. Frantz Co., 268 App.
Div. 144, 49 N.Y.S.2d 329, 332.
EXECUTIVE WARRANT of Governor of asylum
state is but license or privilege to move within
state, and may be revoked before border is crossed.
Downey v. Schmidt, D.C.Tex., 4 F.Supp. 1, 3.
EXECUTOR. A person appointed by a testator
to carry out the directions and requests in his
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EXECUTOR
will, and to dispose of the property according to
his testamentary provisions after his decease. In
re Lamb's Estate, 122 Mich. 239, 80 N.W. 1081;
In re Sipchen's Estate, 180 Wis. 504, 193 N.W. 385,
387; Ricks v. Johnson, 134 Miss. 676, 99 So. 142,
146.
A person to whom a testator by his will commits the exe-
cution, or putting in force, of that instrument and its cod-
icils. Fonbl. 307.
Appointment as executor of person on whom will casts
affirmative duty to collect debts, adjust claims and make
distribution of assets, is validated. In re Hazen's Estate,
175 Misc. 851, 25 N.Y.S.2d 293, 295, 296.
One named in will as executor is an "executor" even be-
fore probate of will. McKibban v. Scott, 131 Tex. 182, 114
S.W.2d 213, 215, 115 A.L.R. 1421.
One to whom another man commits by his last will the
execution of that will and testament. 2 Bl.Comm. 503.
Person appointed under will appointing person as "ad-
ministrator of my estate after my death," held testamen-
tary "executor". Succession of Rassat, La.App., 157 So.
412, 414.
Person nominated as executor becomes "executor" only
when will is admitted to probate and when he takes oath.
Robertson v. National Spiritualists' Ass'n, Tex., 25 S.W.2d
889, 894.
Person or corporation empowered to discharge duties of
a fiduciary, appointed as such by testator in his will. In re
Watkins' Estate, 113 Vt. 126, 30 A.2d 305, 310.
Term "executor" as employed in statute providing that
county judge shall receive commission on actual cash re-
ceipts of each executor, refers to executor administering
estate of testator under control of probate court. Willis
v. Harvey, Tex., 26 S.W.2d 288, 289.
Words "custodian and administrator" in will directing
ap pointment of named person mean "executor." Frazier
v. Frazier, 83 Colo. 188, 263 P. 413, 414.
Civil Law
A ministerial officer who executed or carried into effect
the judgment or sentence in a cause.
Ecclesiastical Law
Executor a lege constitutus, an executor appointed by
law; the ordinary of the diocese.
Executor ab episcopo constitutus, or executor dativus, an
executor appointed by the bishop; an administrator to an
Intestate.
Executor a testatore constitutus, an executor appointed
by a testator. Otherwise termed "executor testamentar-
s;" a testamentary executor.
An executor to the tenor is one who, though not directly
constituted executor by the will, is therein charged with
duties in relation to the estate which can only be performed
by the executor.
For "Coexecutor," "General Executor," "Institut-
ed Executor," "Joint Executors," "Limited Execu-
tor," "Special Executor" and "Substituted Execu-
tor," see those titles.
EXECUTOR BY SUBSTITUTION. A successor
executor appointed by testator entitled to succeed
to administration of estate following resignation
of first executor who had partially administered
upon such estate. In re Stahl's Estate, 113 Ind.
App. 29, 44 N.E.2d 529, 532.
EXECUTOR CREDITOR. See Creditor.
EXECUTOR DATIVE. See Dative.
EXECUTOR DE SON TORT. See De Son Tort.
EXECUTOR LUCRATUS. An executor who has
assets of his testator who in his life-time made
himself liable by a wrongful interference with the
property of another. 6 Jur., N.S., 543.
EXECUTOR NAMED IN WILL. Where will re-
quested that executor named designate some per-
son to act as executor in case of his own disability
and requested that .a bank be named as executor
in event of failure of executor named to designate
another to act in his place, and executor named
executed formal instrument requesting that the
bank be appointed in his stead, such bank was
"executor named in the will," In re Crosby's Es-
tate, 218 Minn. 149, 15 N.W.2d 501, 505.
EXECUTOR OR ADMINISTRATOR OF A DE-
CEASED EXECUTOR. Under statute relating to
right to require an accounting from "executor or
administrator, of a deceased executor," represen-
tative of deceased representative of deceased re-
presentative of an estate cannot be compelled to
file an account. In re Griffin's Estate, 170 Misc.
496, 1066, 10 N.Y.S.2d 161.
EXECUTOR—TRUSTEE. An executor whose du-
ties of holding and managing assets were extend-
ed by the will beyond the period usually permis-
sible for their administration. In re Putnam's
Will, 173 Misc. 151, 17 N.Y.S.2d 238, 239.
EXECUTORIAL DUTIES are what any layman
could perform or was capable of performing. In
re Owen's Estate, 144 Misc. 688, 259 N.Y.S. 892.
For the most part, "executorial duties" consist in as-
certaining proper net amount of various parts of testator's
property after payment of debts and expenses, and distrib-
uting them among persons entitled. Keel v. First Nat.
Bank of Pikeville, 271 Ky. 745, 113 S.W.2d 33, 36, 116 A.L.
R. 151.
Generally, a power of sale given an executor which is of
an imperative nature, and the exercise of which is not left
to executor's discretion, creates an "executorial duty" ra-
ther than a "trust". Esser v. Chimel, Del.Ch., 30 A.2d 685,
687.
EXECUTORY. That which is yet to be executed
or performed; that which remains to be carried
into operation or effect; incomplete; depending
upon a future performance or event. The op-
posite of executed.
Right which is not vested but lies in action and which
requires resort to court of equity to invest plaintiff with
right claimed is "executory." Parks v. Classen Co., 156
Old. 43, 9 P.2d 432, 435.
As to executory "Bequests," "Contracts," "De-
vises," "Estates," "Remainders," "Trusts," and
"Uses," see those titles.
EXECUTORY CONSIDERATION. A considera-
tion which is to be performed after the contract
for which it is a consideration is made.
EXECUTORY CONTRACT TO SELL. Under
which something remains to be done by either
party before delivery and passing of title. Martin
v. John Clay & Co., Mo.App., 167 S.W.2d 407, 411.
EXECUTORY FINES. These are the fines sur
cognizance de droit tantum; sur concessit; and
sur done, grant et render. Abolished by 3 & 4
Wm. IV. C. 74.
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EXEMPTION
EXECUTORY INTERESTS. A general term, com-
prising all future estates and interests in land or
personalty, other than reversions and remainders.
A right which is not vested in possession but lies in ac-
tion, and which it is necessary to obtain the peculiar relief
afforded by courts of equity in order to invest plaintiff
with the right claimed, is an "executory interest". Lang
v. Shell Petroleum Corporation, Tex.Civ.App., 141 S.W.2d
667, 671.
EXECUTORY LIMITATION. A limitation of a
future interest by deed or will; if by will, it is al-
so called an "executory devise."
EXECUTORY PROCESS. A process which can be
resorted to in the following cases, namely: (1)
When the right of the creditor arises from an
act importing confession of judgment, and which
contains a privilege or mortgage in his favor; (2)
when the creditor demands the execution of a
judgment which has been rendered by a tribunal
different from that within whose jurisdiction the
execution is sought. Code Prac. La. art. 732;
Marin v. Lalley, 17 Wall. 14, 21 L.Ed. 596.
EXECUTORY SALE. See Sale.
EXECUTORY UNILATERAL ACCORD. Nothing
more than an offer to enter a contract. Boyd
v. Christiansen, 229 Iowa 1, 293 N.W. 826, 828.
EXECUTORY WARRANTIES. Arise where in-
sured undertakes to perform some executory stipu-
lation, as that certain acts will be done, or that
certain facts will continue to exist. Procacci v.
United States Fire Ins. Co., 118 N.J.L. 423, 193 A.
180, 182.
EXECUTRESS. A female executor. Hardr. 165,
473.
EXECUTRIX. A woman who has been appointed
by will to execute such will or testament.
EXECUTRY. In Scotch law. The movable es-
tate of a person dying, which goes to his nearest
of kin. So called as falling under the distribution
of an executor. Bell.
EXEDOS. See Ejidos.
EXIDOS. See Ejidos,
EXEMPLA ILLUSTRANT NON RESTRINGUNT
LEGEM. Co. Litt. 240. Examples illustrate, but
do not restrain, the law.
EXEMPLAR. A specimen which is capable of sup-
porting both deduction and inference. In re Fish-
er's Estate, 47 Idaho 668, 279 P. 291, 293.
EXEMPLARY DAMAGES. See Damages.
EXEMPLI GRATIA. For the purpose of example,
or for instance. Often abbreviated "ex. gr." or
e. g
EXEMPLIFICATION. An official transcript of a
document from public records, made in form to be
used as evidence, and authenticated as a true copy.
EXEMPLIFICATIONE. A writ granted for the
exemplification or transcript of an original record.
Reg. Orig. 290.
EXEMPLUM. In the civil law. Copy; a written
authorized copy. This word is also used in the
modern sense of "example,"—ad exemplum con-
stituti singulares non trahi, exceptional things
must not be taken for examples. Calvin.
EXEMPT, v. To release, discharge, waive, relieve
from liability. Davidow v. Jenks, Sup., 48 N.Y.S.
2d 586, 588.
To relieve, excuse, or set free from a duty or
service imposed upon the general class to which
the individual exempted belongs; as to exempt
from militia service. Jones v. Wells Fargo Co.
Express, 83 Misc. 508, 145 N.Y.S. 601, 602. See 1
St. at Large, 272.
To relieve certain classes of property from lia-
bility to sale on execution.
EXEMPT, n. One who is free from liability to
military service; as distinguished from a detail,
who is one belonging to the army, but detached or
set apart for the time to some particular duty or
service, and liable, at any time, to be recalled to
his place in the ranks. In re Strawbridge, 39 Ala.
379. Relieved. In re Miller's Estate, 330 Pa. 477,
199 A. 148, 149. See Exempts.
EXEMPT FROM ALL TAXATION. In proposed
constitutional amendment, exempting specified
homesteads from taxation, mean exempt when
not restrained by Federal Constitution. Gray v.
Winthrop, 115 Fla. 721, 156 So. 270, 94 A.L.R.
804.
EXEMPTION. Freedom from a general duty or
service; immunity from a general burden, tax, or
charge. Green v. State, 59 Md. 128, 43 Am.Rep.
542; Koenig v. Railroad Co., 3 Neb. 380; Long v.
Converse, 91 U.S. 113, 23 L.Ed. 233; Poore v. Bow-
lin, 150 Tenn. 412, 265 S.W. 671.
A privilege allowed by law to a judgment debtor, by
which he may hold property to a certain amount, or cer-
tain classes of property, free from all liability to levy and
sale on execution or attachment. Turrill v. McCarthy, 114
Iowa, 681, 87 N.W. 667; Williams v. Smith, 117 Wis. 142,
93 N.W. 464; In re Trammell, D.C.Ga.; 5 F.2d 326, 327.
A right given by law to a debtor to retain portion of
his property free from claims of creditors. Pickens v.
Pickens, 125 Tex. 410, 83 S.W.2d 951, 954.
An "exemption" contemplated by constitutional provi-
sion forbidding exemption of property from taxation is an
exemption from all taxation in any form. Turco Paint &
Varnish Co. v. Kalodner, 320 Pa. 421, 184 A. 37, 43.
An "exemption" from inheritance tax is a deduction. In
re Maxson's Estate, 30 Cal.App.2d 566, 86 P.2d 922, 924.
As applied to taxation "exemption" is freedom from
burden of enforced contributions to expenses and mainte-
nance of government. Washington Chocolate Co. v. King
County, 21 Wash.2d 630, 152 P.2d 981, 984.
Credit against income tax for income tax paid to other
state or country is an "exemption". Miller v. McColgan,
17 Ca1.2d 432, 110 P.2d 419, 424, 134 A.L.R. 1424; Keasbey
& Mattison Co. v. Rothensies, C.C.A.3, 133 F.2d 894, 898.
Deduction made in determining taxable income is an
"exemption," Tupelo Garment Co. of Tupelo, Miss. v.
State Tax Commission, 178 Miss. 730, 173 So. 656, 660.
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EXEMPTION
The words "exemption from seizure" in statute providing
that a pension or other reward granted by the United
States for military service is exempt from seizure in legal
proceeding meant "not subject to debts." In re McCor-
mick's Estate, 169 Misc. 672, 8 N.Y.S.2d 179, 188.
EXEMPTION LAWS. Laws which provide that
a certain amount or proportion of a debtor's
property shall be exempt from execution.
EXEMPTION, WORDS OF. It is a maxim of law
that words of exemption are not to be construed
to import any liability; the maxim expressio un-
sus  alterius, or its converse, exclusio
unius inclusio alterius, not applying to such a
Case. For example, an exemption of the crown
from the bankruptcy act 1869, in one specified
particular, would not inferentially subject the
crOwn to that act in any other particular. Brown.
EXEMPTS. Persons who are not bound by law,
but excused from the performance of duties im-
posed upon others.
EXENNIUM. In old English law. A gift; a new
year's gift. Cowell.
EXEQUATUR. Lat. Let it be executed.
In French practice, this term is subscribed by judicial
authority upon a transcript of a judgment from a foreign
country, or from another part of France, and authorizes
the execution of the judgment within the jurisdiction
where it is so indorsed.
International Law
A certificate issued by the foreign department
of a state to a consul or commercial agent of an-
other state, recognizing his official character, and
authorizing him to fulfill his duties.
EXERCISE. To make use of. Thus, to exercise
a right or power is to do something which it en-
ables the holder to do. U. S. v. Souders, 27 Fed.
Cas. 1267; Cleaver v. Comm., 34 Pa. 284; Snead
v. Wood, 24 Ga.App. 210, 100 S.E. 714, 715.
To put in action or practice, to carry on some-
thing, to transact. Salway v. Multnomah Lumber
& Box Co., 134 Or. 428, 293 P. 420, 421.
The "exercise" of an option to purchase is merely the
election of optionee to purchase. Floyd v. Morgan, 60 Ga.
App. 496, 4 S.E.2d 91, 97.
EXERCISE OF JUDGMENT. Exercise of sound
discretion, that is, discretion exercised, not arbi-
trarily or willfully, but with regard to what is
right and equitable. United States v. Beckman,
C.C.A.Pa., 104 F.2d 260, 262.
EXERCISE OF JUDICIAL DISCRETION. In
practical effect, "exercise of judicial discretion"
by trial judge means doing as he pleases, unguid-
ed by law. Borger v. Mineral Wells Clay Prod-
ucts Co., Tex.Civ.App., 80 S.W.2d 333, 334.
EXERCISED DOMINION. Open acts and con-
duct relative to land as evidence claim of the
right of absolute possession, use, and ownership.
Whelan v. Henderson, Tex.Civ.App., 137 S.W.2d
150, 153.
EXERCISING AN OPTION. Elements are deci-
sion of optionee to purchase property under terms
of option and communication of decision to op-
tionor within life of option. Floyd v. Morgan,
60 Ga.App. 496, 4 S.E.2d 91, 95.
EXERCITALIS. A soldier; a vassal. Spelman.
EXERCITOR NAVIS. Lat. The temporary own-
er or charterer of a . ship. Mackeld. Rom. Law,
§ 512; The Phebe, 19 Fed.Cas. 418.
EXERCITORIA ACTIO. In the civil law. An
action which lay agaipst the employer of a vessel
(exercitor navis) for the contracts made by the
master. Inst. 4, 7, 2; 3 Kent, Comm. 161; Mack-
eld. Rom. Law, § 512.
EXERCITORIAL POWER. The trust given to a
ship-master.
EXERCITUAL. In old English law. A heriot
paid only in arms, horses, or military accouter-
ments.
EXERCITUS. In old European law. An army;
an armed force. The term was absolutely indefi-
nite as to number. It was applied, on various oc-
casions, to a gathering of forty-two armed men,
of thirty-five, or even of four. Spelman.
EXETER DOMESDAY. The name given to a
record preserved among the muniments and
charters belonging to the dean and chapter of
Exeter Cathedral, which contains a description of
the western parts of the kingdom, comprising the
counties of Wilts, Dorset, Somerset, Devon, and
Cornwall. The Exeter Domesday was published
with several other surveys nearly contemporary,
by order of the commissioners of the public rec-
ords, under the direction of Sir Henry Ellis, in a
volume supplementary to the Great Domesday,
folio, London, 1816. Wharton.
EXFESTUCARE. To abdicate or resign; to re-
sign or surrender an estate, office, or dignity, by
the symbolical delivery of a staff or rod to the
alienee.
EXFREDIARE. To break the peace; to commit
open violence. Jacob.
EXHIEREDATIO. In the civil law. Disinherit-
ing; disherison. The formal method of excluding
an indefeasible (or forced) heir from the entire
inheritance, by the testator's express declaration
in the will that such person shall be exhceres.
Mackeld. Rom. Law, § 711.
EXHIERES. In the civil law. One disinherited.
Vicat; Du Cange.
EXHAUSTION OF ADMINISTRATIVE REME-
DIES. The doctrine is that, where an administra-
tive remedy is provided by statute, relief must be
sought from administrative body and such rem-
edy exhausted before courts will act. Abelleira
v. District Court of Appeal, Third Dist., 17 Ca1.2d
280, 109 P.2d 942, 949, 132 A.L.R. 715; Hill v. Bris-
bane, 66 Cal.App.2d 15, 151 P.2d 578, 582.
EXHEREDATE. In Scotch law. To disinherit;
to exclude from an inheritance.
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EXIGI
EXHIBERE. To present a thing corporeally, so
that it may be handled. Vicat. To appear per-
sonally to conduct the defense of an action at
law.
EXHIBIT, v. To show or display; to offer or
present for inspection. To produce anything in
public, so that it may be taken into possession.
Dig. 10, 4, 2.
To present; to offer publicly or officially; to
file of record. Thus we speak of exhibiting a
charge of treason, exhibiting a bill against an
officer of the king's bench by way of proceeding
against him in that court. In re Wiltse, 5 Misc.
105, 25 N.Y.Supp. 737; Newell v. State, 2 Conn. 40.
To administer; to cause to be taken; as medi-
cines.
To submit to a court or officer in course of pro-
ceedings. In re Edwards' Estate, 138 Neb. 671,
294 N.W. 422, 425.
The word implies some affirmative act or at least some
conduct on part of person charged with duty of exhibiting
a thing or who exhibits it. Pecht v. Colby Management
Corporation, 131 Cal.App. 2, 20 P.2d 768, 769.
EXHIBIT, n. A paper or document produced and
exhibited to a court during a trial or hearing, or
to a commissioner taking depositions, or to au-
ditors, arbitrators, etc., as a voucher, or in proof
of facts, or as otherwise connected with the sub-
ject-matter, and which, on being accepted, is
marked for identification and annexed to the depo-
sition, report, or other principal document, or
filed of record, or otherwise made a part of the
case.
A paper referred to in and filed with the bill,
answer, or petition in a suit in equity, or with a
deposition. Brown v. Redwyne, 16 Ga. 68.
EXHIBITANT. A complainant in articles of the
peace. 12 Adol. & E. 599.
EXHIBITED. Displayed. Callison v. State, Tex.
Civ.App., 146 S.W.2d 468, 469.
EXHIBITIO BILLIE. Lat. Exhibition of a bill.
In old English practice, actions were instituted by
presenting or exhibiting a bill to the court, in
cases where the proceedings were by bill; hence
this phrase is equivalent to "commencement of
the suit."
EXHIBITION. Something that one views, or at
which one looks, and at the same time hears.
Longwell v. Kansas City, 199 Mo.App. 480, 203 S.W.
657, 659.
As used in consignment of art objects, indicates a special
showing, Lion v. Lilienfeld, Sup., 30 N.Y.S.2d 866, 869.
Motion pictures are "exhibitions" subject to regulation.
Thayer Amusement Corporation v. Moulton, 63 R.I. 182, 7
A.2d 682, 686, 124 A.L.R. 236.
Ecclesiastical law. An allowance for meat and
drink, usually made by religious appropriators of
churches to the vicar. Also the benefaction set-
tled for the maintaining of scholars in the uni-
versities, not depending on the foundation. Par-
och. Antiq. 304.
Scotch law. An action for compelling the pro-
duction of writings.
EXHIBITION VALUE. "Minimum sale" or "ex-
hibition value" is interchangeably used with term
"price expectancy" in moving picture industry, de-
noting minimum receipts which distributors ex-
pect to realize from exhibition of pictures. Ex-
port & Import Film Co. v. B. P. Schulberg Produc-
tions, 125 Misc. 756, 211 N.Y.S. 838, 839.
EXHUMATION. Disinterment; the removal
from the earth of anything previously buried
therein, particularly a human corpse.
EXIGENCE, or EXIGENCY. Demand, want,
need, imperativeness; emergency, something aris-
ing suddenly out of the current of events; any
event or occasional combination of circumstances,
calling for immediate action or remedy; a press-
ing necessity; a sudden and unexpected happen-
ing or an unforeseen occurrence or condition.
United States v. Atlantic Coast Line Co., D.C.N.C.,
224 F. 160, 162; Los Angeles County v. Payne, 8
Cal.2d 563, 66 P.2d 658, 663. Something arising
suddenly out of circumstances calling for imme-
diate action or remedy, or where something help-
ful needs to be done at once, yet not so pressing
as an emergency. State ex rel. Odenwald v. Dis-
trict Court of Tenth Judicial Dist. in and for
Fergus County, 98 Mont. 1, 38 P.2d 269, 271.
EXIGENCY OF A BOND. That which the bond
demands or exacts, i. e., the act, performance, or
event upon which it is conditioned.
EXIGENCY OF A WRIT. The command or im-
perativeness of a writ; the directing part of a
writ; the act or performance which it commands.
EXIGENDARY. In English law. An officer who
makes out exigents. See Exigenter.
EXIGENT, or EXIGI FACIAS. L. Lat. In Eng-
lish practice. A judicial writ made use of in the
process of outlawry, commanding the sheriff to
demand the defendant, (or cause him to be de-
manded, exigi faciat,) from county court to coun-
ty court, until he be outlawed; or, if he appear,
then to take and have him before the court on a
day certain in term, to answer to the plaintiff's
action. 1 Tidd Pr. 132; 3 Bl. Comm. 283, 284;
Archb. N. Pr. 485. Outlawry has long been ob-
solete. See Allocato Comitatu; Allocatur Exigent.
EXIGENT LIST. A phrase used to indicate a list
of cases set down for hearing upon various inci-
dental and ancillary motions and rules.
EXIGENTER. An officer of the English court of
common pleas, whose duty it was to make out
the exigents and proclamations in the process of
outlawry. Cowell. Abolished by St. 7 Wm. IV.
and 1 Viet. c. 30. Holthouse.
EXIGI FACIAS. That you cause to be demanded.
The emphatic words of the Latin form of the writ
of exigent. They are sometimes used as the
name of that writ.
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EXIGIBLE
EXIGIBLE. Demandable; requirable.
EXIGIBLE DEBT.. A liquidated and demandable
-or matured claim. Gulf Refining Co. of Louisiana
v. Glasse11, 186 La. 190, 171 So. 846, 853.
EXILE. Banishment; the person banished.
EXILIUM. Lat. In old English law. (1) Exile;
banishment from one's country. (2) Driving
away;  despoiling. The name of a species of
waste, which consisted in driving away tenants or
vassals from the estate; as by demolishing build-
ings, and so compelling the tenants to leave, or
by enfranchising the bond-servants, and unlaw-
fully turning them out of their tenements. Fleta,
1. 1, c. 9.
EXILIUM EST PATRL ZE PRIVATIO, NATALIS
SOLI MUTATIO, LEGUM NATIVARUM AMIS-
SIO. 7 Coke, 20. Exile is a privation of country,
a change of natal soil, a loss of native laws.
EXIST. To live; to have life or animation; to
be in present force, activity, or effect at a given
time; as in speaking of "existing" contracts,
creditors, debts, laws, rights, or liens. Wing v.
Slater, 19 R.I. 597, 35 Atl. 302, 33 L.R.A. 566; Poe
v. Poe, 125 Ark. 391, 188 S.W. 1190; In re Havel's
Estate, 156 Minn. 253, 194 N.W. 633, 34 A.L.R.
1300. To be or continue to be. State v. Saw-
tooth Men's Club, 59 Idaho 616, 85 P.2d 695, 698.
See, also, Existing.
EXISTENCE. As applied to will means physical
existence. In re Kerckhof's Estate, 13 Wash.2d
469, 125 P.2d 284, 287, 290; unrevoked. In re
Flood's Estate, 47 Cal.App.2d 809, 119 P.2d 168,
169.
EXISTIMATIO. In the civil law. The civil repu-
tation which belonged to the Roman citizen, as
such. Mackeld. Rom. Law, § 135. Called a state
or condition of unimpeached dignity or character,
(dignitatis inicesce status;) the highest standing
of a Roman citizen. Dig. 50, 13, 5, 1.
Also the decision or award of an arbiter.
EXISTING. The force of this word is not neces-
sarily confined to the present.
EXISTING CLAIM. Claim which has arisen.
Great Western Oil Co. v. Bailey, 35 N.M. 277, 295
P. 298, 299.
EXISTING CREDITORS. As used in statute re-
garding validity of chattel mortgage against ex-
isting creditors, means general creditors who
have acquired a lien thereon. In re Lewis' Estate,
230 Iowa 694, 298 N.W. 842.
Persons having subsisting obligations against
debtor at time fraudulent alienation was made or
secret trust created, although claims may not
have matured or been reduced to judgment until
after such conveyance. First Nat. Bank v. Mer-
rick, 103 N.J.Eq. 63, 142 A. 243; First State Bank
of Mobeetie v. Goodner, Tex.Civ.App., 168 S.W.
2d 941, 944.
To determine whether person is such an "ex-
isting creditor" as can invoke protection of stat-
ute of Elizabeth, inception of debt is time which
controls. Matthews v. Montgomery, 193 S.C. 118,
7 S.E.2d 841, 848.
EXISTING DEBT. To have an "existing debt"
it is sufficient if there is an absolute debt owing
though the period for its payment may not yet
have arrived. Helms v. State, 137 Old. 55, 280 P.
416, 417.
A tax may be a "debt" within meaning of agreement
to assume "existing debts". Shepard v. Commissioner of
Internal Revenue, C.C.A.7, 101 F.2d 595, 598.
EXISTING DISEASE. A chronic or definite af-
fliction such as would be embraced in the common
understanding and meaning of the term "diseased"
or "sick." Browning v. Equitable Life Assur. Soc.
of United States, 94 Utah 532, 72 P.2d 1060, 1074.
EXISTING EQUITY implies an existing right to
future payment, and including a contingent lia-
bility, as distinguished from an "existing debt,"
implying a present, enforceable liability. Bark-
ley v. Kerfoot, 77 Wash. 556, 137 P. 1046, 1047;
State v. Smith, 107 Ohio St. 1, 140 N.E. 737, 738.
EXISTING INDEBTEDNESS ON THE POLICY.
Reference in statute to any "existing indebtedness
on the policy," to be deducted from reserve value
in computing extended term insurance, means in-
debtedness created by "proper assignment of poli-
cy". Occidental Life Ins. Co. v. Jamora, Tex.Civ.
App., 44 S.W.2d 808, 812.
EXISTING LAW. As used in appropriation act for
street improvements requiring refund from street
railways under "existing law" refer to statute law.
District of Columbia v. Georgetown & T. Ry. Co.,
59 App.D.C. 335, 41 F.2d 424, 425.
As used in federal statute rendering initial carrier liable
for negligence of connecting carrier and providing that
nothing in statute should deprive holder of bill of lading of
any remedy or right of action which he has under existing
law mean existing federal law and not state law. Fort
Worth & Denver City Ry. Co. v. Motley, Tex.Civ.App., 87
S.W.2d 551, 554.
EXISTING LIABILITIES embrace conditional or
contingent obligations, which may or may not in
the future result in indebtedness. Daniels v. Goff,
192 Ky. 15, 232 S.W. 66, 67.
A tax may be a "liability" within meaning of
agreement to assume "existing liabilities." Shep-
ard v. Commissioner of Internal Revenue, C.C.A.
7, 101 F.2d 595, 598.
EXISTING PERSON. A child conceived, but not
born, is to be deemed an "existing person" so far
as may be necessary for its interests in the event
of its subsequent birth. Comp.Laws N.D.1913, §
4337; 1 Bl.Comm. 130.
EXISTING PUBLIC SCHOOL. Mean not only
the building, but the school grounds. State ex rel.
Fronton Exhibition Co. v. Stein, 144 Fla. 387, 198
So. 82, 87.
EXISTING RAILROAD CORPORATIONS. Ex-
tends to such as are incorporated after as well as
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EXPECT
before its passage, unless exception is provided
in their charters. Indianapolis & St. L. R. Co. v.
Blackman, 63 Ill. 117; Lawrie v. State, 5 Ind. 525;
Fox v. Edwards, 38 Iowa, 215.
EXISTING RIGHT. Rights as exist under gen-
eral laws. Funk v. Inland Power & Light Co., 164
Wash. 110, 1 P.2d 872, 874.
EXISTING USE. Construction of adaptability of
a building or room for purpose, and employment
of building or room or land within the purpose.
Appeal of Yocom, 142 Pa.Super. 165, 15 A.2d 687,
690.
Utilization of premises so that they may be
known in neighborhood as being employed for giv-
en purpose. De Felice v. Zoning Board of Ap-
peals of Town of East Haven, 130 Conn. 156, 32 A.
2d 635, 637, 638; Landay v. MacWilliams, 173 Md.
460, 196 A. 293, 297, 114 A.L.R. 984.
EXISTS OR IS KEPT OR MAINTAINED. An
actual being; something in fact in existence;
something continuing and not failing. McCarron
v. Commonwealth, 169 Va. 387, 193 S.E. 509, 512.
EXIT. Lat. It goes forth. This word is used in
docket entries as a brief mention of the issue of
process. Thus, "exit fi. fa." denotes that a writ
of fieri facias has been issued in the particular
case. The "exit of a writ" is the fact of its issu-
ance.
EXIT WOUND. A term used in medical juris-
prudence to denote the wound made by a weapon
on the side where it emerges, after it has passed
completely through the body, or through any part
of it.
EXITUS. Children; offspring. The rents, issues,
and profits of lands and tenements. An export
duty. The conclusion of the pleadings.
EXLEGALITAS. In old English law. Outlawry.
Spelman.
EXLEGALITUS. He who is prosecuted as an out-
law. Jacob.
EXLEGARE. In old English law. To outlaw;
to deprive one of the benefit and protection of the
law, (exuere aliquem beneficio legis.) Spelman.
EXLEX. In old English law. An outlaw; qui
est extra legem, one who is out of the law's pro-
tection. Bract. fol. 125. Qui beneficio legis pri-
vatur. Spelman.
EXOINE. In French law. An act or instrument
in writing which contains the reasons why a par-
ty in a civil suit, or a person accused, who has
been summoned, agreeably to the requisitions of
a decree, does not appear. Poth. Proc. Crim. § 3,
art 3. The same as "Essoin" (q. v.).
EXONERATE. To relieve, to exculpate. Stan-
dard Oil Co. of New York v. Stevens, 103 Vt. 1,
151 A. 507, 508.
EXONERATION. The removal of a burden,
charge, or duty. Particularly, the act of relieving
a person or estate from a charge or liability by
casting the same upon another person or estate.
Louisville & N. R. Co. v. Comm., 114 Ky. 787, 71
S.W. 916; Bannon v. Burnes, C.C.Mo., 39 Fed. 898.
A right or equity which exists between those who are
successively liable for the same debt. "A surety who dis-
charges an obligation is entitled to look to the principal for
reimbursement, and to invoke the aid of a court of equity
for this purpose, and a subsequent surety who, by the
terms of the contract, is responsible only in case of the de-
fault of the principal and a prior surety, may claim exoner-
ation at the hands of either." Bisp.Eq. § 331.
A right to have a fund applied to payment of guaranteed
claims. Stulz-Sickles Co. v. Fredburn Const. Corporation,
114 N.J.Eq. 475, 169 A. 27, 28.
The right which a person has who has been compelled to
pay what another should be forced to pay in full. Fidelity
& Casualty Ins. Co. of New York v. Sears, Roebuck & Co.,
124 Conn. 227, 199 A. 93, 94.
Scotch Law
A discharge; or the act of being legally dis-
burdened of, or liberated from, the performance
of a duty or obligation. Bell.
EXONERATIONE SECTZE. A writ that lay for
the crown's ward, to be free from all suit to the
county court, hundred court, leet, etc., during
wardship. Fitzh. Nat. Brev. 158.
EXONERATIONE SECTIE AD CURIAM BARON.
A writ of the same nature as that last above de-
scribed, issued by the guardian of the crown's
ward, and addressed to the sheriffs or stewards of
the court, forbidding them to distrain him, etc.,
for not doing suit of court, etc. New Nat. Brev. 352.
EXONERETUR. Lat. Let him be relieved or
discharged. An entry made on a bailpiece, where-
by the surety is relieved or discharged from fur-
ther obligation, when the condition is fulfilled by
the surrender of the principal or otherwise.
EXORBITANT. Deviating from the normal or
customary course, or going beyond the rule of es-
tablished limits of right or propriety. U. S. v.
Oglesby Grocery Co., D.C.Ga., 264 F. 691, 695.
EXORDIUM. The beginning or introductory part
of a speech.
EXPATRIATION. The voluntary act of abandon-
ing one's country, and becoming the citizen or sub-
ject of another. Ludlam v. Ludlam, 31 Barb. (N.
Y.) 489. See Emigration; Reynolds v. Haskins,
C.C.A.Kan., 8 F.2d 473, 475, 45 A.L.R. 759; United
States ex rel. Wrona v. Karnuth, D.C.N.Y., 14 F.
Supp. 770, 771; 1 Barton, Con y . 31, note; Vaugh.
227, 281; 7 Co. 16; Dy. 2, 224, 298b, 300b; 2 P.
Wms. 124; 1 Hale, Pl.Cr. 68; 1 Wood, Con y . 382;
Westl.Priv.Int.Law; Story, Confi. Laws; Cock-
burn, Nationality. The voluntary renunciation or
abandonment of nationality and allegiance.
Schaufus v. Attorney General of United States,
D.C.Md., 45 F.Supp. 61, 66; Perkins v. Elg, D.C.,
307 U.S. 325, 39 S.Ct. 884, 889, 83 L.Ed. 1320.
EXPECT. To await; to look forward to some-
thing intended, promised, or likely to happen. At-
chison, etc., R. Co. v. Hamlin, 67 Kan. 476, 73 P.
58; Kronenberg v. Whale, 21 Ohio App. 322, 153
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EXPECT
N.E. 302, 308; to look for mentally, to look for-
ward to, as to something about to happen or come,
to have a previous apprehension of whether good
or evil, to look for with some confidence, and
once meant to demand, to require. Holcomb v.
Holcomb, 173 Miss. 192, 159 So. 564, 566.
The word has also a secondary meaning, in which it
implies a demand rather than anticipation, as where a
person, in negotiating a contract, says he will "expect" to
write half the fire insurance. Sillman v. Spokane Savings
& Loan Soc., 103 Wash. 619, 175 P. 296, 297.
Where testator gave life estate provided that after life
tenant's death he "expected" his realty to be sold the
word "expect" was almost equivalent of word "direct".
Wattjes v. Faeth, 379 Ill. 290, 40 N.E.2d 521, 524.
'EXPECTABLE RISK. Risk which is indefinite
and uncertain. Martin v. Hodson, 93 N.H. 66, 35
A.2d 402, 404.
EXPECTANCY. That which is expected or hoped
for. The condition of being deferred to a future
time, or of dependence upon an expected event;
contingency as to possession or enjoyment. With
respect to the time of their enjoyment, estates
may either be in possession or in expectancy; and
of expectancies there are two sorts,—one created
by the act of the parties, called a "remainder;"
the other by act of law, called a "reversion." 2
Bl.Comm. 163.
" 'Expectancy' as applied to property, is contingency as
to possession, that which is expected or hoped for. At
most it is a mere hope or expectation, contingent upon the
will and pleasure of the landowner, and hardly reaches the
height of a property right, much less a vested right, be-
cause where there is no obligation, there is no right. It
is a possibility for which a party may under certain cir-
cumstances properly hope." Robinson v. Eagle-Picher
Lead Co., 132 Kan. 860, 297 P. 697, 698, 75 A.L.R. 840.
EXPECTANCY OF LIFE. In the doctrine of life
annuities, the share or number of years of life
which a person of a given age may, upon an equal-
ity of chance, expect to enjoy. Wharton.
EXPECTANT. Contingent as to enjoyment. Hav-
ing relation to, or dependent upon, a contingency.
EXPECTANT ESTATES, See Estate in Expect-
ancy.
EXPECTANT HEIR. A person who has the ex-
pectation of inheriting property or an estate, but
small present means.
The term is chiefly used in equity, where relief is afford-
ed to such persons against the enforcement of "catching
bargains," (q. v.) Jeffers v. Lampson, 10 Ohio St. 106;
In re Robbins' Estate, 199 Pa. 500, 49 A.. 233. "The phrase
is used not in its literal meaning, but as including every
one who has either a vested remainder, or a contingent
remainder in a family property, including a remainder in
a portion, as well as a remainder in an estate, and every
one who has the hope of succession to the property of an
ancestor, either by reason of his being the heir-apparent
or presumptive, or by reason, merely, o the expectation of
a devise or bequest on account of the supposed or presumed
affection of his ancestor or relation. More than this, the
doctrine as to expectant heirs has been extended to all
reversioners and remaindermen. So that the doctrine not
only included the class mentioned, who in some popular
sense might be called 'expectant heirs,' but also all re-
maindermen and reversioners." Jessel, M. R.
EXPECTANT RIGHT. A contingent right, not
vested; one which depends on the continued exis-
tence of the present condition of things until the
happening of some future event. Pearsall v. Great
Northern R. Co., 161 U.S. 646, 16 S.Ct. 705, 40 L.
Ed. 838; Pollack v. Meyer Bros. Drug Co., C.C.A.
Mo., 233 F. 861, 868; Adams v. Ernst, 1 Wash.2d
254, 95 P.2d 799, 804. A right is contingent, not
vested, when it comes into existence only on an
event or condition which may not happen. Wirtz
v. Nestos, 51 N.D. 603, 200 N.W. 524, 530.
EXPECTATION OF LIFE. See Expectancy of
Life.
EXPECTED. A shipping agent's letter that a ship
was "expected" to be ready to be loaded at a port
on a stated date constituted a representation of
a belief or expectation. L. N. Jackson & Co. v.
Seas Shipping Co., 185 Misc. 94, 56 N.Y.S.2d 501,
503.
EXPECTED SERVICE. Incidental to employment
is that service which an employee has no absolute
duty to perform but is of the type of duty which
has the approval of the employer. Severson v. In-
dustrial Commission, 221 Wis. 169, 266 N.W. 235,
236.
EXPEDIENCY. Involves utility. Woolf v. Fuller,
87 N.H. 64, 174 A. 193, 196, 94 A.L.R. 1067.
EXPEDIENT. Apt and suitable to end in view.
Werner v. Biederman, 64 Ohio App. 423, 28 N.E.2d
957, 959. Whatever is suitable and appropriate
in reason for the accomplishment of a specified
object. Eustace v. Dickey, 240 Mass. 55, 132 N.E
852, 862.
EXPEDIENTE. An historical record of proceed-
ings in connection with grant of land by the sover-
eign. State v. Balli, Tex.Civ.App., 173 S.W.2d 522,
526. In Mexican law, a term including all the
papers or documents constituting a grant or title
to land from government. Vanderslice v. Hanks,
3 Cal. 27, 38.
EXPEDIMENT. The whole of a person's goods
and chattels, bag and baggage. Wharton.
EXPEDIT REIPUBLICZE NE SUA RE QUIS
MALE UTATUR. It is for the interest of the state
that a man should not enjoy his own property im-
properly (to the injury of others). Inst. 1, 8, 2.
EXPEDIT REIPUBLICIE UT SIT FINIS LITIUM.
It is for the advantage of the state that there be
an end of suits; it is for the public good that ac-
tions be brought to a close. Co.Litt. 303b; Broom,
Max. 365-6; Belcher v. Farrar, 8 Allen, Mass. 329.
This maxim belongs to the law of all countries:
1 Phill. Int. L. 553; French v. Shotwell, 5 Johns.
Ch., N.Y., 555, 568.
EXPEDITATIE- ARBORES. Trees rooted up or
cut down to the roots. Fleta, 1. 2, c. 41.
EXPEDITATION. In old forest law. A cutting
off the claws or ball of the forefeet of mastiffs or
other dogs, to prevent their running after deer;—
a practice for the preservation of the royal fors
ests. Cart. de For. c. 17; Spelman; Cowell.
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EXPENSES
EXPEDITE. To hasten; to make haste; to speed.
Atchison, T. & S. F. Ry. Co. v. Ridley, 119 Okl.
138, 249 P. 289, 290.
EXPEDITER. An employee whose duty is to
see that shortage in material at one point in a
plant is remedied by delivery of the needed ma-
terial from another part of the plant where it is
stacked or stored. American Mut. Liability Ins.
Co. v. Louisville & N. R. Co., 250 Ala. 354, 34 So.
2d 474, 476.
EXPEDITIO. An expedition; an irregular kind
of army. Spelman.
EXPEDITIO BREVIS. In old practice. The serv-
ice of a writ. Townsh. Pl. 43.
EXPEDITION. A sending forth or setting forth
for the execution of some object of consequence.
Progress. An important journey or excursion for
a specific purpose; as, a military or exploring ex-
pedition; also, the body of persons making such
an excursion. Equitable Life Assur. Soc. of Unit-
ed States v. Dyess, 194 Ark. 1023, 109 S.W.2d 1263,
1265.
An important journey or excursion for specific
purpose; a journey, march, or voyage generally
of several or many persons for definite purpose,
such as a military or exploring expedition or a
trading expedition to the African coast; the word
carries an implication of a military exploit or of
an exploration into remote regions or over new
routes. Day v. Equitable Life Assur. Soc. of U. S.,
C.C.A.Colo., 83 F.2d 147, 149.
EXPEDITIOUS. Possessed of, or characterized
by, expedition or efficiency and rapidity in action;
performed with, or acting with, expedition; quick;
speedy. Atchison, T. & S. F. Ry. Co. v. Ridley,
119 Oki. 138, 249 P. 289, 290.
EXPEL. In regard to trespass and other torts,
this term means to eject, to put out, to drive out,
and generally with an implication of the use of
force. Perry v. Fitzhowe, 8 Q.B. 779; Smith v.
Leo, 92 Hun, 242, 36 N.Y.S. 949.
EXPEND. To pay out, use up, consume. Adams
v. Prather, 176 Cal. 33, 167 P. 534, 538, 3 A.L.R.
928; School Dist. No. 24 of Marion County v.
Smith, 82 Or. 443, 161 P. 706, 708. To pay out, lay
out, use up, and implies receiving something in re-
turn. In re Holmes' Estate, 233 Wis. 274, 289
N.W. 638, 641.
EXPENDERE. The word "expense" had its ori-
gin in the Latin word "expendere"; "ex" meaning
"out," and "pendere" meaning "to weigh." State
v. DeWitt C. Jones Co., 108 Fla. 613, 147 So. 230,
233.
EXPENDITORS. Paymasters. Those who expend
or disburse certain taxes. Especially the sworn
officer who supervised the repairs of the banks of
the canals in Romney Marsh. Cowell.
EXPENDITURE. An expending, a laying out of
money; disbursement;—it is not the same as an
"appropriation," the setting apart or assignment
to a particular person or use, in exclusion of all
others. Grout v. Gates, 97 Vt. 434, 124 A. 76, 80.
As used in constitutional provision relating to allowable
increase over preceding fiscal year, includes all expendi-
tures legally made by county rather than expenditures in
enforcement of law only. Crow v. Board of Sup'rs of
Stanislaus County, 135 Cal.App. 451, 27 P.2d 655.
The word "expenditure" has been defined as the spend-
ing of money; the act of expending; disbursement ex-
pense; money expended; a laying out of money; pay-
ment; expenditure. Crow v. Board of Sup'rs of Stanislaus
County, 135 Cal.App. 451, 27 P.2d 655.
EXPENSLE LITIS. Costs or expenses of the suit,
which are generally allowed to the successful
party.
EXPENSE. That which is expended, laid out or
consumed; an outlay; charge; cost; price. Row-
ley v. Clarke, 162 Iowa 732, 144 N.W. 908, 911.
Actual outlay or actual obligation to make outlay, U. S.
v. Block & Kohner Mercantile Co., D.C.Mo., 33 F.2d 196,
197; an actual and honest disbursement, H. B. Humphrey
Co. v. Pollack Roller Runner Sled Co., 278 Mass. 350, 180 N.
E. 164, 166; an outlay of money; the expenditure of time,
labor, and thought; the employment and consumption of
time and labor; act of expending, disbursement, expendi-
ture, etc., State v. De Witt C. Jones Co., 108 Fla. 613, 147
So. 230, 233; expenditures, outlays, or disbursements of
money, In re McMurray, 131 Misc. 182, 227 N.Y.S. 115, 117;
laying out or expending of money or other resources, as
time or strength; expenditure; hence drain on resources;
detriment; loss; as, at the expense of health; the habit
of expending; money expended; outlay; charge; as, ex-
penses for the journey, In re Bates' Will, 152 Misc. 627,
274 N.Y.S. 93; laying out or spending of money or other
resources, In re Bond & Mortgage Guarantee Co., Sup:, 39
N.Y.S.2d 760, 767.
For "Current Expenses," see that title.
EXPENSE IN CARRYING ON BUSINESS. Usual
or customary expenditure in course of business
during the year. Whitney v. Commissioner of
Internal Revenue, C.C.A.3, 73 F.2d 589, 591.
EXPENSES OF ADMINISTRATION. As used in
Revenue Act means obligations incurred after
decedent's death by his representatives in adminis-
tering his estate. Mayer v. Reinecke, D.C.Ill., 28
F.Supp. 334, 339.
EXPENSES OF FAMILY. Medical and funeral ex-
penses are "expenses of the family" within mean-
ing of statute making expenses of family charge-
able upon property of both husband and wife.
Hansen v. Hayes, 175 Or. 358, 154 P.2d 202, 205.
Under such a statute the term includes not only mer-
chandise used by family as a whole, but also expenses,
such as medical aid, hospital services and burial attend-
ance, incurred or supplied for one of the spouses. In re
De Nisson's Guardianship, 197 Wash. 265, 84 P.2d 1024,
1026.
EXPENSES OF RECEIVERSHIP. Comprehend
allowances to receivers' counsel, master's fees, ap-
praisers' fees, auditors' fees, and rent and expenses
incurred by receivers in conducting business. Phil-
adelphia Dairy Products Co. v. Summit Sweets
Shoppe, Ch., 113 N.J.Eq. 458, 167 A. 667.
EXPENSES OF THE STATE. Within constitu-
tional provision for raising revenue has reference
to general operating expenses of state government
for fiscal year. State ex rel. Conrad v. Langer, 68
N.D. 167, 277 N.W. 504, 509.
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EXPENSIS
EXPENSIS MILITUM NON LEVANDIS. An an-
cient writ to prohibit the sheriff from levying any
allowance for knights of the shire upon those who
held lands in ancient demesne. Reg.Orig. 261.
EXPERIENCE. A state, extent, or duration of
being engaged in a particular study or work; the
real life as contrasted with the ideal or imaginary.
Arthur v. City of Pittsburgh, 330 Pa. 202, 198 A.
637, 638. A word implying skill, facility, or prac-
tical wisdom gained by personal knowledge, feel-
ing, and action, and also the course or process by
which one attains knowledge or wisdom. Chicago,
I. & L. Ry. Co. v. Gorman, 58 Ind.App. 381, 106
N.E. 897, 898.
EXPERIENCE RATE. Under compensation policy
"experience rate," which is payable or applicable
rate, is made up by taking the basic rate and
considering the business conducted by the insured.
Metropolitan Casualty Ins. Co. of New York v.
Rochester Fruit & Vegetable Co., 232 App.Div. 321,
249 N.Y.S. 572, 575.
EXPERIENTIA PER VARIOS ACTUS LEGEM
FACIT, MAGISTRA RERUM EXPERIENTIA.
Co.Litt. 60; Branch, Princ. Experience by various
acts makes law. Experience is the mistress of
things.
EXPERIMENT. A trial or special test or observa-
tion made to confirm or disprove something doubt-
ful. Stone v. City of Florence, 203 S.C. 527, 28
S.E.2d 409, 410, 150 A.L.R. 953; Bragg v. Ohio
Chemical & Manufacturing Co., 349 Mo. 577, 162
S.W.2d 832, 837.
In patent law, either a trial of an uncompleted mechani-
cal structure to ascertain what changes or additions may
be necessary to make it accomplish the design of the pro-
jector, or a trial of a completed machine to test or il-
lustrate its practical efficiency. In the former case, the
inventor's efforts, being incomplete, if they are then
abandoned, will have no effect upon the right of a subse-
quent inventor; but if the experiment proves the capacity
of the machine to effect what its inventor proposed, the
law assigns to him the merit of having produced a complete
invention. Northwestern Fire Extinguisher Co. v. Phila-
delphia Fire Extinguisher Co., 10 Phila. 227, 18 Fed.Cas.
394.
EXPERIMENTAL TESTIMONY. That of some
witness who, after the commission of the crime,
makes experiments for the purpose of ascertain-
ing the effect of a certain act under certain con-
ditions, and swears to such experiments. State
v. Harlan, Mo.Sup., 240 S.W. 197, 201.
EXPERT EVIDENCE. Testimony given in rela-
tion to some scientific, technical, or professional
matter by experts, i. e., persons qualified to speak
authoritatively by reason of their special training,
skill, or familiarity with the subject.
Evidence of persons who are skilled in some art, science,
profession, or business, which skill or knowledge is not
common to their fellow men, and which has come to such
experts by reason of special study and experience in such
art, science, profession, or business. Culver v. Prudential
Ins. Co. of America, 6 W.W.Harr. 582, 179 A. 400.
Opinion by qualified person on facts already proved in-
volving scientific or technical knowledge, and not evidence
of thing done or measurement taken which any one is
competent to prove. Crichton v. Krouse, La.App., 150 So.
443, 445; Allen v. Tex. & N. 0. R. Go., Tex.Civ.App., 70
S.W.2d 758, 763.
Opinion of witness possessing peculiar knowledge, wis-
dom, skill or information regarding subject matter under
consideration, acquired by study, investigation, observa-
tion, practice or experience and not likely to be possessed
by ordinary layman or inexperienced person. Baker v.
Kansas City Public Service Co., 353 Mo. 625, 183 S.W.2d
873, 875; Ambruster v. Levitt Realty & Investment Co., 341
Mo. 364, 107 S.W.2d 74, 79.
Such as is given on questions of science, skill, or trade
by persons learned or experienced therein. Langford v.
State, 124 Tex.Cr.R. 473, 63 S.W.2d 1027.
EXPERT WITNESSES may be men of science ed-
ucated in the art, or persons possessing special or
peculiar knowledge acquired from practical ex-
perience. Empire Oil & Refining Co. v. Hoyt, C.
C.A.Mich., 112 F.2d 356, 360.
One who gives result of process of reasoning
which can be mastered only by special scientists.
Phillips v. Tidwell, 26 Tenn.App. 543, 174 S.W.2d
472, 477; one who has skilled experience or ex-
tensive knowledge in his calling, or in any branch
of learning, King v. State, 109 Tex.Cr.R. 173, 3 S.
W.2d 802, 804, 57 A.L.R. 407; one who has special
knowledge of subject, Pennsylvania Threshermen
& Farmers' Mut. Casualty Ins. Co. v. Messenger,
181 Md. 295, 29 A.2d 653, 655; Hutchens v. Humble
Oil & Refining Co., Tex.Civ.App., 161 S.W.2d 571,
573; Greenstreet v. Greenstreet, 65 Idaho 36, 139
P.2d 239, 242; one who is skilled in some art,
science, trade, profession, or other human activity,
and possesses peculiar knowledge concerning it,
Tri-State Broadcasting Co. v. Federal Communica-
tions Commission, 68 App.D.C. 292, 96 F.2d 564,
568; person competent to give expert testimony,
Ambruster v. Levitt Realty & Investment Co., 341
Mo. 364, 107 S.W.2d 74, 79.
Witnesses who have acquired ability to deduce correct
Inferences from hypothetically stated facts, or from facts
involving scientific or technical knowledge. City of Chicago
v. Lehmann, 262 Ill. 468, 104 N.E. 829, 830.
Witnesses who have had special opportunity for observa-
tion, or special training or special skill in obtaining the
facts in a case. Mills v. Richardson, 126 Me. 244, 137 A.
689, 690.
Experts. An expert is a skillful or experienced person;
a person having skill or experience, or peculiar knowledge
on certain subjects, or in certain professions; a scientific
witness. See Congress & E. Spring Co. v. Edgar, 99 U.S.
657, 25 L. Ed. 487; Koccis v. State, 56 N.J.Law, 44, 27 A.
800; Ellingwood v. Bragg, 52 N.H. 489; United States
Fidelity & Guaranty Co. v. Rochester, Tex.Civ.App., 281
S. W. 306, 311.
One possessing, with reference to particular sub-
ject, knowledge not acquired by ordinary persons,
Oklahoma Natural Gas Corporation v. Schwartz,
146 Okl. 250, 293 P. 1087, 1090; one skilled in any
particular art, trade, or profession, being possessed
of peculiar knowledge concerning the same, and
one who has given subject in question particular
study, practice, or observation. Hardy v. Dahl,
210 N.C. 530, 187 S.E. 788, 790; one who by habits
of life and business has peculiar skill in forming
opinion on subject in dispute, Robertson v. /Etna
Life Ins. Co., 37 Ga.App. 703, 141 S.E. 504, 505;
Sims v. State, 40 Ga.App. 10, 148 S.E. 769, 771;
one who can see all sides of a subject, Kentucky
& West Virginia Power Co. v. Howes, 246 Ky.
843, 56 S.W.2d 539.
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EXPLOSION
Persons professionally acquainted with the science or
practice in question. Strickl.Ev. 408. Persons conversant
with the subject-matter on questions of science, skill, trade,
and others of like kind. Best, Ev. § 346; Crosby v. City of
East Orange, 84 N.J.Law, 708, 87 A. 341, 342; Pridgen v.
Gibson, 194 N.C. 289, 139 S.E. 443, 445, 54 A.L.R. 885.
Persons selected by the court or parties in a cause, on
account of their knowledge or skill, to examine, estimate,
and ascertain things and make a report of their opinions.
Merlin, Repert.
Persons who are professionally acquainted with some
science or are skilled in some art or trade, or who have
experience or knowledge in relation to matters which are
not generally known to the people. Miller v. State, 9
Okl.Cr. 255, 131 P. 717, 718, L.R.A.1915A, 1088.
EXPILARE. In the civil law. To spoil; to rob
or plunder. Applied to inheritances. Dig. 47, 19;
Cod. 9, 32.
EXPILATIO. In the civil law. The offense of
unlawfully appropriating goods belonging to a
succession. It is not technically theft (furtum)
because such property no longer belongs to the
decedent, nor to the heir, since the latter has not
yet taken possession.
In the common law, the grant of letters testamentary, or
letters of administration, relates back to the time of the
death of the testator or intestate; so that the property of
the estate is vested in the executor or administrator from
that period.
EXPILATOR. In the civil law. A robber; a
spoiler or plunderer. Expilatores sunt atrociores
fures. Dig. 47, 18, 1, 1.
EXPIRATION. Cessation;  termination from
mere lapse of time; as the expiration of a lease,
statute, and the like. Marshall v. Rugg, 6 Wyo.
270, 45 Pac. 486, 33 L.R.A. 679; Harris v. Gold-
berg, 111 Misc.Rep. 600, 182 N.Y.S. 262, 263. Com-
ing to a close. Clevenger v. Kern, 100 Ind.App.
581, 197 N.E. 731, 737. Termination or end. Pe-
tition of Prime, 335 Pa. 218, 6 A.2d 530, 532.
The record known in insurance circles as "expirations"
is in effect a copy of policy issued to insured which con-
tains the date of issuance, name of insured, expiration,
amount, premiums, property covered and terms of insur-
ance. Woodruff v. Auto Owners Ins. Co., 300 Mich. 54,
1 N.W.2d 450, 453; Kerr & Elliott v. Green Mountain Mut.
Fire Ins. Co., 111 Vt. 502, 18 A.2d 164, 168.
The term "expiration," as in an insurance policy, refers
to termination of the policy by lapse of time covering the
policy period, while "cancellation" refers to termination of
the policy by act of either or both parties prior to ending
of the policy period. Beha v. Breger, 223 N.Y.S. 726, 731,
130 Misc.Rep. 235; Hanson v. Royal Ins. Co., C.C.A.Tenn.,
257 F. 715, 716.
EXPIRATION OF CREDIT. As used in statute,
refers to expiration of additional period of grace
or credit extension accorded the debtor. Flesh.
man v. Whiteside, 148 Or. 73, 34 P.2d 648, 650, 93
A.L.R. 1456.
EXPIRATION OF PERIOD FOR REDEMPTION.
As used in statute concerning conveyance of title
by tax deed, it means time of application for tax
deed. Hartman v. Mimmack, 116 Mont. 392, 154
P.2d 279, 281.
EXPIRE. Where term of lease has ended, either
by lapse of time or by limitation, it has expired.
Burnee Corporation v. Uneeda Pure Orange Drink
Co., 132 Misc. 435, 230 N.Y.S. 239, 246.
Black's Law Dictionary Revised 4th Ed.-44
EXPIRY OF THE LEGAL. In Scotch law and
practice. Expiration of the period within which
an adjudication may be redeemed, by paying the
debt in the decree of adjudication. Bell; 3 Jurid.
Styles, 3d ed. 1107.
EXPLEES. See Esplees.
EXPLETA, EXPLETIA, or EXPLECIA. In old
records. The rents and profits of an estate.
EXPLICATIO. In the civil law. The fourth
pleading; equivalent to the surrejoinder of the
common law. Calvin.
EXPLICIT. Not obscure or ambiguous, having
no disguised meaning or reservation. Eclipse
Lumber Co. v. Bitler, 213 Iowa 1313, 241 N.W. 696,
698.
EXPLOITATION. Act or process of exploiting,
making use of, or working up; utilization by ap-
plication of industry, argument, or other means
of turning to account, as the exploitation of a
mine or a forest. State Finance Co. v. Hamacher,
171 Wash. 15, 17 P.2d 610, 613.
EXPLORATION. In mining law. The examina-
tion and investigation of land supposed to contain
valuable minerals, by drilling, boring, sinking
shafts, driving tunnels, and other means, for the
purpose of discovering the presence of ore and
its extent. Colvin v. Weimer, 64 Minn. 37, 65
N.W. 1079.
EXPLORATOR. A scout, huntsman, or chaser.
EXPLOSION. A sudden expansion of a liquid
substance with result that gas generated by the
expansion escapes with violence, usually causing
a loud noise. Standard Accident Ins. Co. v. Har-
rison-Wright Co., 207 N.C. 661, 178 S.E. 235.
A sudden and rapid combustion, causing violent expan-
sion of the air, and accompanied by a report. United Life,
Fire & Marine Ins. Co. v. Foote, 22 Ohio St. 348, 10 Am.
Rep. 735; Hartford Fire Ins. Co. v. Empire Coal Mining
Co., C.C.A.Colo., 30 F.2d 794, 798. In the common accept-
ance of the term, it includes the sudden bursting or break-
ing up from an internal or other force, and is not limited to
cases caused by combustion or fire. American Paper Prod-
ucts Co. v. Continental Ins. Co., 208 Mo.App. 87, 225 S.W.
1029, 1030. The ordinary idea is that the explosion is the
cause, while the rupture is the effect. Mitchell v. Ins. Co.,
183 U.S. 42, 22 S.Ct. 22, 46 L. Ed. 74.
A violent bursting or expansion with noise following the
sudden production of great pressure or a sudden release of
pressure. Lever Bros. Co. v. Atlas Assur. Co., C.C.A.Ind.,
131 F.2d 770, 775, 776.
A violent expansion of some force, accompanied by noise.
Sweeney v. Blue Anchor Beverage Co., 325 Pa. 216, 189 A.
331, 335.
Bursting of something with great noise and violence.
Lever Bros. Co. v. Atlas Assur. Co., C.C.A.Ind., 131 F.2d
770, 775, 776.
Bursting with a loud noise or detonation. Bower v.
Aetna Ins. Co., D.C.Tex., 54 F.Supp. 897, 898.
Sudden release of pressure such as disruption of steam
boiler, Travellers' Indemnity Co. v. B. & B. Ice & Coal Co.,
248 Ky. 443, 58 S.W.2d 640.
The word "explosion" is variously used in ordinary
speech, and is not one that admits of exact definition.
Every combustion of an explosive substance, whereby other
property is ignited and consumed, would not be an "explo-
sion," within the ordinary meaning of the term. It is not
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EXPLOSION
used as a synonym of "combustion." An explosion may be
described generally as a sudden and rapid combus-
tion, causing violent expansion of the air, and accompanied
by a report. But the rapidity of the combustion, the vio-
lence of the expansion, and the vehemence of the report
vary in intensity as often as the occurrences multiply.
Hence an explosion its an idea of degrees; and the true
meaning of the word, in each particular case, must be set-
tled, not by any fixed standard or accurate measurement,
but by the common experience and notions of men in mat-
ters of that sort. Insurance Co. v. Foote, 22 Ohio St. 348,
10 Am.Rep. 735. And see Insurance Co. v. Dorsey, 56 Md.
81, 40 Am.Rep. 403; Louisville Underwriters v. Durland,
123 Ind. 544, 24 N.E. 221, 7 L.R.A. 399.
The word "explosion," when used in a fire policy, is that
which ordinary men, not scientists, understand an explo-
sion to be. Roma Wine Co. v. Hardware Mut. Fire Ins. Co.
of Minnesota, 31 Cal.App.2d 455, 88 P.2d 260, 262.
EXPLOSION OF ANY KIND. Under fire policy
exempting insurer from liability, phrase refers
not to agency producing explosion, but to kinds of
material which explode. McDonald v. Royal Ins.
Co., 98 Mont. 572, 40 P.2d 1005, 1006.
EXPLOSIVE. Any substance by whose decom-
position or combustion gas is generated with such
rapidity that it can be used for blasting or in fire-
arms. Schwartz v. Northern Life Ins. Co., C.C.
A.Cal., 25 F.2d 555, 559.
"Explosive" is compound or mixture susceptible of explo-
sive chemical reaction, as gunpowder or nitroglycerine, and
has been construed not to cover specific things which do
explode or contain explosive material. Henderson v. Mas-
sachusetts Bonding & Ins. Co., 337 Mo. 1, 84 S.W.2d 922,
925.
EXPORT, v. To carry or to send abroad. Tennes-
see Oil Co. v. McCanless, 178 Tenn: 683, 157 S.W.
2d 267, 271, 272. To send, take, or carry an ar-
ticle of trade or commerce out of the country. To
transport merchandise from one country to an-
other in the course of trade. To carry out or con-
vey goods by sea. State v. Turner, 5 Har., Del.,
501.
Transportation of goods from United States to
foreign country. West India Oil Co. v. Sancho,
C.C.A.Puerto Rico, 108 F.2d 144, 147.
"Export," in its primary sense, means to carry or send
out of a place, and in secondary sense means to carry from
one state or country. McKesson & Robbins v. Collins, 18
Cal.App.2d 648, 64 P.2d 469, 470.
While the word export technically includes the landing
In as well as the shipment to a foreign country, it is often
used as meaning only the shipment from this country.
U. S. v. Chavez, 228 U.S. 525, 33 S.Ct. 595, 57 L.Ed. 950.
EXPORT, n, A thing or commodity exported.
More commonly used in the plural.
In American law, this term is only used of goods carried
to foreign countries, not of goods transported from one
state te another. Swan v. U. S., 190 U.S. 143, 23 S.Ct. 702,
47 L.Ed. 984; Rothermel v. Meyerle, 136 Pa. 250, 20 A. 583,
9 L.R.A. 366.
EXPORT TAX. A tax on goods going out and
which actually leave the country. Krauter v.
Menchacatorre, 202 App.Div. 200, 195 N.Y.S. 361,
363.
EXPORTATION. A severance of goods from
mass of things belonging to United States with
intention of uniting them to mass of things be-
longing to some foreign country. U. S. v. Hill,
C.C.A.N.Y., 34 F.2d 133, 135. The act of sending
or carrying goods and merchandise from one
country to another.
EXPOSE, v. To show publicly; to display; to
offer to the public view; as, to "expose" goods to
sale, to "expose" a tariff or schedule of rates, to
"expose" the person. Comm. v. Byrnes, 158 Mass.
172, 33 N.E. 343; Adams Exp. Co. v. Schlessinger,
75 Pa. 246. To "expose for sale" means to keep
and show for the purpose of selling. State v.
Hogan, 212 Mo.App. 473, 252 S.W. 90; to have
in stock. People ex rel. Goldstein v. Glass, 154
Misc. 569, 278 N.Y.S. 764.
To p lace in a p osition where the object spoken of is opento danger, on where it is near or accessible to anything
which may affect it detrimentally; as, to "expose" a child,
or to expose oneself or another to a contagious disease or
to danger or hazard of any kind. In re Smith, 146 N.Y. 68,
40 N.E. 497, 28 L.R.A. 820; Davis v. Insurance Co., 81
Iowa, 496, 46 N.W. 1073, 10 L.R.A. 359; Eau Claire Sand &
Gravel Co. v. Industrial Commission of Wisconsin, 173 Wis.
561, 181 N.W. 718. To cast out to chance, to place abroad,
or in a situation unprotected. Shannon v. People, 5 Mich. 90.
Word "exposed" as used in pedestrian's complaint
against city meant that city negligently permitted hole to
remain in street open and unguarded. City of Birmingham
v. Chambless, 222 Ala. 249, 132 So. 313.
EXPOSE. Fr. A statement; account; recital;
explanation. The term is used in diplomatic lan-
guage as descriptive of a written explanation of
the reasons for a certain act or course of conduct.
EXPOSITIO. Lat. Explanation; exposition; in-
terpretation.
EXPOSITIO QUE EX VISCERIBUS CAUSE
NASCITUR, EST APTISSIMA ET FORTISSIMA
IN LEGE. That kind of interpretation which is
born [or drawn] from the bowels [or vitals] of a
cause is the aptest and most forcible in the law.
10 Coke, 24b.
EXPOSITION. Explanation; interpretation.
EXPOSITION DE PART. In French law. The
abandonment of a child, unable to take care of
itself, either in a public or private place.
EXPOSITORY STATUTE. One the office of
which is to declare what shall be taken to be the
true meaning and intent of a statute previously
enacted. Black, Const.Law (3d ed.) 89. And see
Lindsay v. United States Sa y . & Loan Co., 120
Ala. 156, 24 So. 171, 42 L.R.A. 783; People v.
Board of Sup'rs, 16 N.Y. 424.
They are often expressed thus: "The true intent and
meaning of an act passed * * * be and is hereby
declared to be;" "the provisions of the act shall not here-
after extend" ; or "are hereby declared and enacted not to
apply," and the like. This is a common mode of legisla-
tion.
EXPOSURE. The act or state of exposing or be-
ing exposed. See Expose.
Words "exposure to unnecessary danger" and the words
"unnecessary exposure to danger", include all cases of
exposure to unnecessary danger attributable to insured's
negligence. Oakley v. National Casualty Co., 217 N.C. 150,
7 S.E.2d 495, 496; Micca v. Wisconsin Nat. Life Ins. Co.,
C.C.A.I11., 75 F.2d 710, 712.
For "Indecent exposure", see Indecent.
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EXPOSURE OF CHILD. Placing it (with the in-
tention of wholly abandoning it) in such a place
or position as to leave it unprotected against dan-
ger and jeopard its health or life or subject it to
the peril of severe suffering or serious bodily
harm. Shannon v. People, 5 Mich. 90.
EXPOSURE OF PERSON. In criminal law.
Such an intentional exposure, in a public place,
of the naked body or the private parts as is cal-
culated to shock the feelings of chastity or to cor-
rupt the morals of the community. Gilmore v.
State, 118 Ga. 299, 45 S.E. 226.
EXPRESS. Clear; definite; explicit; unmistak-
able; not dubious or ambiguous. In re Moon's
Will, 107 Vt. 92, 176 A. 410, 412. Clear, definite,
plain, direct. State ex rel. Andrews v. Zangerle,
101 Ohio St. 235, 128 N.E. 165, 167. Declared in
terms; set forth in words. Directly and distinct-
ly stated. State ex rel. Ashauer v. Hostetter, 344
Mo. 665, 127 S.W.2d 697, 699. Explicit. Elliott v.
Hudson, 117 W.Va. 345, 185 S.E. 465, 467; made
known distinctly and explicitly, and not left to
inference. Minneapolis Steel & Machinery Co. v.
Federal Surety Co., C.C.A.Minn., 34 F.2d 270, 274.
Manifested by direct and appropriate language, as
distinguished from that which is inferred from
conduct. The word is usually contrasted with
"implied." State v. Denny, 118 Ind. 449, 21 N.E.
274, 4 L.R.A. 65.
"Express" necessarily implies previous knowl-
edge of intended personal use. Burford v. Hues-
by, 35 Cal.App.2d 643, 96 P.2d 380, 381.
To force out by pressure; to press or squeeze
out, as the juice of a fruit; to empty by pressure
or squeezing. Strommen v. Prudential Ins. Co.,
187 Minn. 381, 245 N.W. 632, 634.
As to express "Conditions," "Consent," "Consid-
eration," "Contracts," "Covenants," "Dedication,"
"Emancipation," "Invitation," "Malice," "Notice,"
"Obligation," "Trust," "Waiver," and "Warranty,"
see those titles.
EXPRESS ABROGATION. Abrogation by ex-
press provision or enactment; the repeal of a law
or provision by a subsequent one, referring direct-
ly to it.
Express abrogation is that literally pronounced by the
new law either in general terms, as when a final clause
abrogates or repeals all laws contrary to the provisions of
the new one, or in particular terms, as when it abrogates
certain preceding laws which are named.
EXPRESS ACTIVE TRUST. See Trust.
EXPRESS ASSUMPSIT. An undertaking to do
some act, or to pay a sum of money to another,
manifested by express terms.
An assumpsit is "express" if promisor puts his engage-
ment in distinct and definite language. Dukes v. Rogers,
67 Ga.App. 661, 21 S.E.2d 295, 297.
An undertaking made orally, by writing not un-
der seal, or by matter of record, to perform act
or to pay sum of money to another. Holcomb v.
Kentucky Union Co., 262 Ky. 192, 90 S.W.2d 25,
27; Anderson v. Biesman & Carrick Co., 287 Ill.
App. 507, 4 N.E.2d 639, 640, 641.
EXPRESS AUTHORITY. Authority delegated to
agent by words which expressly authorize him to
do a delegable act. Greep v. Bruns, 160 Kan. 48,
159 P.2d 803, 808. Authority distinctly, plainly ex-
pressed, orally or in writing. Ulen v. Knecttle, 50
Wyo. 94, 58 P.2d 446, 449, 111 A.L.R. 565. Author-
ity which is directly granted to or conferred upon
agent in express terms. Stevens v. Frost, 140 Me.
1, 32 A.2d 164, 168; Riefsnyder v. Dougherty, 301
Pa. 328, 152 A. 98, 100.
That which confers power to do a particular identical
thing set forth and declared exactly, plainly, and directly
with well-defined limits; an authority given in direct
terms, definitely and explicitly, and not left to inference or
implication, as distinguished from authority which is gen-
eral, implied, or not directly stated or given. Fergus v.
Brady, 277 Ill. 272, 115 N.E. 393, 396, Ann.Cas.1918B, 220.
EXPRESS COLOR. An evasive form of special
pleading in a case where the defendant ought to
plead the general issue. Abolished by the com-
mon-law procedure act, 1852, 15 & 16 Vict. c. 76,
§ 64.
EXPRESS COMMON-LAW DEDICATION. See
Dedication.
EXPRESS COMPANY. A firm or corporation en-
gaged in the business of transporting parcels or
other movable property, in the capacity of com-
mon carriers, and especially undertaking the safe
carriage and speedy delivery of small but valu-
able packages of goods and money. Alsop v.
Southern Exp. Co., 104 N.C. 278, 10 S.E. 297, 6
L.R.A. 271; Pfister v. Central Pac. Ry. Co., 70
Cal. 169, 11 P. 686, 59 Am.Rep. 404.
A common carrier that carries at regular and stated
times, over fixed and regular routes, money and other val-
uable packages, which cannot be conveniently or safely
carried as common freight; and also other articles and
packages of any description which the shipper desires or
the nature of the article requires should have safe and
rapid transit and quick delivery, transporting the same in
the immediate charge of its own messenger on passenger
steamers and express and passenger railway trains, which
it does not own or operate, but with the owners of which
it contracts for the carriage of its messengers and freights.
Pacific Exp. Co. v. Seibert, C.C.Mo., 44 F. 310.
EXPRESS DISSATISFACTION. Where will de-
clares that any one expressing dissatisfaction with
its provisions should forfeit his interest, "dissat-
isfaction" is legally "expressed" when beneficiary
contests or objects in legal proceeding to enforce-
ment of any provision of will. In re Hickman's
Estate, 308 Pa. 230, 162 A. 168, 169.
EXPRESS PERMISSION within statute respect-
ing automobile owner's liability includes prior
knowledge of intended use and affirmative and ac-
tive consent thereto. Bradford v. Sargent, 136
Cal.App. 324, 27 P.2d 93.
EXPRESS PRIVATE TRUST. See Trust.
EXPRESS REPEAL. Abrogation or annulment
of previously existing law by enactment of subse-
quent statute declaring that former law shall be
revoked or abrogated. Brockman v. Board of Di-
rectors of Jefferson County Bridge Dist., 188 Ark.
396, 66 S.W.2d 619. A repeal of statute is "ex-
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EXPRESS
press" when it is literally declared by a subse-
quent statute. Stoker v. Police Jury of Sabine
Parish, La.App., 190 So. 192, 194.
EXPRESS REPUBLICATION of will occurs
where testator repeats ceremonies essential to
valid execution, with avowed intention of repub-
lishing will. In re Simeone's Estate, 141 Misc.
737, 253 N.Y.S. 683, 689.
EXPRESS REQUEST. That which occurs when
one person commands or asks another to do or
give something, or answers affirmatively when
asked whether another shall do a certain thing.
Zeidler'v. Goelzer, 191 Wis. 378, 211 N.W. 140, 144.
EXPRESS TERMS. Within provision that quali-
fied acceptance, in "express terms," varies effect
of draft, "express terms" means clear, unambigu-
ous, definite, certain, and unequivocal terms. In-
ternational Finance Corp. v. Philadelphia Whole-
sale Drug Co., 312 Pa. 280, 167 A. 790, 792.
EXPRESSA NOCENT, NON EXPRESSA NON
NOCENT. Things expressed are [may be] preju-
dicial; things not expressed are not. Express
words are sometimes prejudicial, which, if omit-
ted, had done no harm. Dig. 35, 1, 52; Id. 50, 17,
195. See Calvin.
EXPRESSA NON PROSUNT QUIE NON EX-
PRESSA PRODERUNT. 4 Coke, 73. The expres-
sion of things of which, if unexpressed, one would
have the benefit, is useless. Thing expressed may
be prejudicial which when not expressed will
profit.
EXPRESSED. Means stated or declared in di-
rect terms, set forth in words; not left to infer-
ence or implication. Anderson v. Board of Ed.
of School Dist. No. 91, 390 Ill. 412, 61 N.E.2d 562,
567.
EXPRESSIO EORUM QU1E TACITE INSUNT NI-
HIL OPERATUR. The expression or express
mention of those things which are tacitly implied
avails nothing. 2 Inst. 365.
A man's own words are void, when the law speaketh as
much. Finch, Law, b. 1, c. 3, no. 26. Words used to
express what the law will imply without them are mere
words of abundance. 5 Coke, 11; Broom, Max. 669, 753;
2 Pars.Contr. 28; 4 Co. 73; Andr.Steph.P1. 366; Hob. 170;
3 Atk. 138; 11 M. & W. 569; 7 Exch. 28.
EXPRESSIO UNIUS EST EXCLUSIO ALTER-
IUS. Expression of one thing is the exclusion of
another. Co.Litt. 210a; Burgin v. Forbes, 293
Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles,
170 Oki. 487, 40 P.2d 1097, 1100. Mention of one
thing implies exclusion of another. Fazio v.
Pittsburgh Rys. Co., 321 Pa. 7, 182 A. 696, 698;
Saslaw v. Weiss, 133 Ohio St. 496, 14 N.E.2d 930,
932. When certain persons or things are specified,
in a law, contract, or will, an intention to ex-
clude all others from its operation may be in-
ferred. Little v. Town of Conway, 171 S.C. 27,
170 S.E. 447, 448.
Under this maxim, if statute specifies one exception to
a general rule or assumes to specify the effects of a certain
provision, other exceptions or effects are excluded, People
v. One 1941 Ford 8 Stake Truck, Engine No. 99T370053,
License No. P.8410, Cal., 159 P.2d 641, 642.
EXPRESSIO UNIUS PERSONS EST EXCLUSIO
ALTERHJS. Co.Litt. 210. The mention of one
person is the exclusion of another. See Broom,
Max. 651.
EXPRESSLY. In an express manner; in direct
or unmistakable terms; explicitly; definitely; di-
rectly. Le Ballister v. Redwood Theatres, 1 Cal.
App.2d 447, 36 P.2d 827; St. Louis Union Trust
Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685, 689. In an
express manner; in direct terms; with distinct
purpose; particularly. Hawkins v. Mattes, 171
Okl. 186, 41 P.2d 880, 891; the opposite of implied-
ly. Bolles v. Toledo Trust Co., 144 Ohio St. 195,
58 N.E.2d 381, 396.
EXPRESSUM FACIT CESSARE TACITUM.
That which is expressed makes that which is im-
plied to cease, [that is, supersedes it, or controls
its effect.] Thus, an implied covenant in a deed is
in all cases controlled by an express covenant. 4
Coke, 80; Broom, Max. 651; 5 Bingh.N.C. 185; 6
B. & C. 609; 2 C. & M. 459; 2 E. & B. 856; And-
over & Medford Turnpike Corp. v. Hay, 7 Mass.
106; Galloway v. Holmes, 1 Doug., Mich., 330.
Where a law sets down plainly its whole meaning the
court is prevented from making it mean what the court
pleases. Munro v. City of Albuquerque, 48 N.M. 306, 150
P.2d 733, 743.
EXPRESSUM SERVITIUM REGAT VEL DE-
CLARET TACITUM. Let service expressed rule
or declare what is silent
EXPROMISSIO. In the, civil law. The species
of novation by which a creditor , accepts a new
debtor, who becomes bound instead of the old, the
latter being released. 1 Bouv.Inst. no. 802.
EXPROMISSOR. In the civil law. A person who
assumes the debt of another, and becomes solely
liable for it, by a stipulation with the creditor.
He differs from a surety, inasmuch as this con-
tract is one of novation, while a surety is jointly
liable with his principal. Mackeld.Rom.Law, §
538; Dig. 12, 4, 4; 16, 1, 13; 24, 3, 64, 4; 38, 1, 37,
8.
EXPROMITTERE. In the civil law. To under-
take for another with the view of becoming liable
in his place. Calvin.
EXPROPRIATION. This word primarily denotes
a voluntary surrender of rights or claims; the act
of divesting oneself of that which was previously
claimed as one's own, or renouncing it. In this
sense it is the opposite of "appropriation."
A meaning has been attached to the term, imported from
its use in foreign jurisprudence, which makes it synony-
mous with the exercise of the power of eminent domain,
i. e., the compulsory taking from a person, on compensa-
tion made, of his private property for the use of a railroad,
canal, or other public work. Brownsville v. Pavazos, 2
Woods 293, Fed.Cas.No.2,043. In Louisiana expropriation
is used as is taking under eminent domain in most of the
other states. In England "compulsory purchase" Is used;
Halsbury, Laws of England.
French Law
Expropriation is the compulsory realization of a
debt by the creditor out of the lands of his debtor,
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EXTENDED
or the usufruct thereof. When the debtor is coten-
ant with others, it is necessary that a partition
should first be made. It is confined, in the first
place, to the lands (if any) that are in hypothêque,
but afterwards extends to the lands not in hypo-
thêque. Moreover, the debt must be of a liqui-
dated amount. Brown.
EXPULSION. A putting or driving out. Eject-
ment; banishment; a cutting off from the privi-
leges of an institution or society permanently.
John B. Stetson University v. Hunt, 88 Fla. 510,
102 So. 637, 639. The act of depriving a member
of a corporation, legislative body, assembly, so-
ciety, commercial organization, etc., of his mem-
bership in the same, by a legal vote of the body
itself, for breach of duty, improper conduct, or
other sufficient cause. New York Protective
Ass'n v. McGrath, Super.Ct., 5 N.Y.S. 10; Palmet-
to Lodge v. Hubbell, 2 Strob., S.C., 462, 49 Am.
Dec. 604. Also, in the law of torts and of land-
lord and tenant, an eviction or forcible putting
out. See Expel.
"Separation" from a church by reason of a schism is
not like "expulsion" or "excommunication," which terms
necessarily involve involuntary and compulsory separation
of members. Lindstrom v. Tell, 131 Minn. 203, 154 N.W.
969, 971.
EXPUNGE. Means to destroy or obliterate; it
implies not a legal act, but a physical annihilation.
Andrews v. Police Court of City of Stockton, Cal.
App., 123 P.2d 128, 129. To blot out; to efface de-
signedly; to obliterate; to strike out wholly.
Webster. See Cancel.
EXPURGATION. The act of purging or cleans-
ing, as where a book is published without its ob-
scene passages.
EXPURGATOR. One who corrects by expurging.
EXQUIESTOR. In Roman law. One who had
filled the office of qucestor. A title given to Tri-
bonian. Inst. proem. § 3. Used only in the abla-
tive case, (exqucestore.)
EXROGARE. (From ex, from, and rogare, to
pass a law.) In Roman law. To take something
from an old law by a new law. Tayl. Civil Law,
155.
EXTEND. Lends itself to .great variety of mean-
ings, which must in each case be gathered from
context. Blouch v. Stevens, 106 N.J.L. 488, 150 A.
581, 583.
It may mean to broaden the application or action of,
Meyering v. Miller, 30 Mo. 885, 51 S.W.2d 65, 66; to carry
forward, Loeffier v. Federal Supply Co., 187 Okl. 373, 102
P.2d 862, 864; to cause to reach or continue as from point
to point, Henderson Development Co. v. United Fuel Gas
Co., 121 W.Va. 284, 3 S.E.2d 217, 219; to expand, enlarge,
prolong, lengthen, widen, carry out, further than the orig-
inal limit; as, to extend the time for filing an answer, to
extend a lease, term of office, charter, railroad track, etc.,
State v. Armstrong, 31 N.M. 220, 243 P. 333, 345; Lesser-
Goldman Cotton Co. v. Cache River Drainage Dist., 174
Ark. 160, 294 S.W. 711, 713; State v. Scott, 113 Mo. 559, 20
S.W. 1076; Moers v. Reading, 21 Pa. 201; Keetch v. Cord-
ner, 90 Utah 423, 62 P.2d 273, 277, 108 A.L.R. 52; to give as
a privilege, Tantum v. Keller, 95 N.J.Eq. 466, 123 A. 299,
300, 301, 302; to give wider range, State ex rel. Berthot v.
Gallatin County High School Dist., 102 Mont. 356, 58 P.2d
264, 266; to make more comprehensive or capricious, Mey-
ering v. Miller, 33 Mo. 885, 51 S.W.2d 65, 66; Keetch v.
Cordner, 90 Utah 423, 62 P.2d 273, 277, 108 A.L.R. 52; to
stretch out or to draw out; Crane Enamelware Co. v.
Smith, 168 Tenn. 203, 76 S.W.2d 644; Loeffier v. Federal
Supply Co., 187 Okl. 373, 102 P.2d 862, 864.
Statute authorizing Interstate Commerce Commission to
require carriers to "extend" lines is confined to extensions
within undertaking of carriers to serve, and does not
embrace new lines reaching new territory. Interstate Com-
merce Commission v. Oregon-Washington R. & Nay . Co.,
Or., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588.
To extend a charter is to give one which now exists
greater or longer time to operate in than that to which it
was originally limited. Fidelity & Columbia Trust Co. v.
Louisville Ry. Co., 258 Ky. 817, 81 S.W.2d 896, 900.
To "extend" a lease or contract is not necessarily the
same as "renew," for a stipulation to renew requires the
making of a new lease, while one to extend does not.
Sanders v. Wender, 205 Ky. 422, 265 S.W. 939, 941. See,
also, Nenzel v. Rochester Silver Corporation, 48 Nev. 41,
226 P. 1102, 1105; Livingston Waterworks v. City of Liv-
ingston, 53 Mont. 1, 162 P. 381, 383, L.R.A.1917D, 1074;
Buckland v. Tarble, 95 Vt. 87, 112 A. 217, 218. But whether
a clause in a lease is a covenant of renewal or an agree-
ment for an extension depends on the parties' intention
and the use of the word "renewal"; Freiheit v. Broch, 98
Conn. 166, 118 A. 828, 829; and the two terms may be used
practically synonymously; American Press v. City of St.
Louis, 314 Mo. 288, 284 S.W. 482, 486; Orr v. Doubleday,
Page & Co., 157 N.Y.S. 1009, 1012, 172 App.Div. 96. The
word "extend" as used in a lease does not necessarily
mean the same, as "renew," but context may show intent
that the words be given a similar meaning. Candler v.
Smyth, 168 Ga. 276, 147 S.E. 552, 554.
To extend a street means to prolong and continue it in
the direction in which it already points, but does not
include deflecting it from the course of the existing por-
tion. In re Charlotte St., 23 Pa. 288; Seattle & M. Ry. Co.
v. State, 7 Wash. 150, 34 P. 551, 22 L.R.A. 217.
English Practice
To value the lands or tenements of a person
bound by a statute or recognizance which has be-
come forfeited, to their full extended value. 3
Bl.Comm. 420; Fitzh.Nat.Brev. 131. To execute
the writ of extent or extendi facias (q. v.). 2
Tidd, Pr. 1043, 1044.
Taxation
Extending a tax consists in adding to the as-
sessment roll the precise amount due from each
person whose name appears thereon. "The sub-
jects for taxation having been properly listed,
and a basis for apportionment established, noth-
ing will remain to fix a definite liability but to
extend upon the list or roll the several propor-
tionate amounts, as a charge against the several
taxables." Cooley, Tax'n, 2d Ed., 423.
EXTENDED. A lengthening out of time previ-
ously fixed and not the arbitrary setting of a new
date. In re Parent, D.C.N.H., 30 F.Supp. 943, 945,
Stretched, spread, or drawn out. Rathbone v.
State Board of Land Com'rs of Montana, 100
Mont. 109, 47 P.2d 47, 49.
As used in constitutional inhibition against extending
provisions of statute by reference to its title only, has ref-
erence to an attempt to add something to text of pre-exist-
ing law. Hollis & Co. v. McCarroll, 200 Ark. 523, 140
S.W.2d 420, 422.
EXTENDED INSURANCE. An option to use
dividend to procure extended insurance is one to
procure extension of term of insurance from date
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to which premiums have been paid, without fur-
ther payment. Williams v. Union Central Life Ins.
Co., Tex., 291 U.S. 170, 54 S.Ct. 348, 78 L.Ed. 711,
92 A.L.R. 693.
EXTENDED LEASE. An "extended lease" is
merely enlarged upon all the terms and condi-
tions of the instrument, while a "renewed lease"
is a new lease. Rathbone v. State Board of Land
Com'rs of Montana, 100 Mont. 109, 47 P.2d 47, 49.
EXTENDI FACIAS. Lat. You cause to be extend-
ed. In English practice. The name of a writ of
execution, (derived from its two emphatic words;)
more commonly called an "extent." 2 Tidd, Pr.
1043; 4 Steph.Comm. 43.
EXTENDING as used in agreement to extend
railroad siding at point of termination signified
making connection with. Blouch v. Stevens, 106
N.J.L. 488, 150 A. 581, 582.
EXTENSION. A part constituting an addition or
enlargement, as an annex, as to build on an ex-
tension to a house. Northwestern Light & Power
Co. v. Town of Grundy Center, 220 Iowa 108, 261
N.W. 604. Addition of existing facilities. People
ex rel. Anderson v. Baltimore & 0. S. W. R. Co.,
359 Ill. 301, 194 N.E. 568, 569. Enlargement of
main body; addition of something smaller than
that to which it is attached; to cause to reach or
continue as from point to point; to lengthen or
prolong. City of Lancaster v. Public Service Com-
mission, 120 Pa.Super. 597, 182 A. 781, 783. That
property of a body by which it occupies a portion
of space. Newark Stove Co. v. Gray & Dudley
Co., D.C.Tenn., 39 F.Supp. 992, 993.
Renewal of paper is not a loan but an extension of time
for payment. McRoberts v. Spaulding, D.C.Iowa, 32 F.2d
315, 318.
The word "extension" ordinarily implies the existence
of something to be extended. State v. Graves, 352 Mo.
1102, 182 S.W.2d 46, 51.
Bankruptcy
An extension proposal is an agreement on part of credi-
tors that they will extend time within which their claims
are probably to be paid, In full as to secured creditors, on
terms proposed by debtor and approved by court. Held-
stab v. Equitable Life Assur. Soc. of United States, C.C.A.
Kan., 91 F.2d 655, 658.
"Extension" under Bankruptcy Act is proceeding wherein
debtor merely obtains extension of time within which to
pay in full. In re Thompson, D.C.Va., 51 F.Supp. 12, 14.
Proposal under which debts which were not settled in
full but were merely extended in time for ultimate pay-
ment in full was an "extension proposal". Mullican v.
Texas Land & Mortgage Co., C.C.A.Tex., 117 F.2d 576, 578.
Carrier's Lines
Tracks over which there are to be train movements in
the sense that such movements are a part of the actual
transportation haul from shipper to the oonsignee. Mis-
souri Pac. R. Co. v. Chicago Great Western R. Co., 137
Kan. 217, 19 P.2d 484, 489.
Lease
An option for renewal implies giving of new lease on
same terms as old lease, while an option for extension con-
templates a continuance of old lease for a further period.
Mutual Paper Co. v. Hoague-Sprague Corporation, 297
Mass. 294, 8 N.E.2d 802, 806.
"Renewal" and "extension," as used in leases with ref-
erence to options for renewal or for extension, are synony-
mous. Economy Stores v. Moran, 178 Miss. 62, 172 So. 865,
867.
The distinction between "extension" and "renewal" of
lease is chiefly that, in the case of renewal, a new lease is
requisite, while, in the case of extension, the same lease
continues in force during additional period upon perform-
ance of stipulated act. Carrano v. Shoor, 118 Conn. 86, 171
A. 17, 20.
The word "extension," when used in its proper and usual
sense in connection with a lease, means a prolongation Di
the previous leasehold estate. Talbot v. Rednalloh Co., 283
Mass. 225, 186 N.E. 273, 275.
Mercantile Law
An allowance of additional time for the payment of
debts. An agreement between a debtor and his creditors,
by which they allow him further time for the payment of
his liabilities. A creditor's indulgence by giving a debtor
further time to pay an existing debt. State v. Mestayer,
144 La. 601, 80 So. 891, 892. Among the French, a similar
agreement is known by the name of attermoiement. Mer-
lin, Repert. mot Attermoiement.
Patent Law
An extension of the life of a patent for an additional
period of seven years, formerly allowed by law in the
United States, upon proof being made that the inventor had
not succeeded in obtaining a reasonable remuneration from
his patent-right. This is no longer allowed, except as to
designs. See Rev.St.U.S. § 4924.
EXTENSION OF PAYMENT. To constitute "ex-
tension of payment" of obligation which would re-
lease sureties, there must be agreement between
obligor and obligee supported by consideration by
which obligee has precluded himself from taking
action against obligor during period of extension.
O'Banion v. Willis, 14 La.App. 638, 129 So. 440, 441.
EXTENSION OR RENEWAL OF NOTE. Takes
place when parties agree upon valuable considera-
tion for maturity of debt on day subsequent to that
provided in original contract. Elk Horn Bank &
Trust Co. v. Spraggins, 182 Ark. 27, 30 S.W.2d 858,
859.
EXTENSIVE. Widely extended in space, time, or
scope; great or wide or capable of being extended.
American Cannel Coal Co. v. Indiana Cotton Mills,
78 Ind.App. 115, 134 N.E. 891, 893.
EXTENSIVE RAINFALL is not same as "extra-
ordinary rainfall," for which damages could not
be recovered; word "extensive" being applicable
to area embraced in circumference of particular
rainfall, but not implying necessarily rainfall out
of ordinary. Johnson v. Ratliff, 233 Ky. 187, 25
S.W.2d 355, 356. See Extraordinary Rainfall.
EXTENSORES. In old English law. Extenders
or appraisers.
The name of certain officers appointed to appraise and
divide or apportion lands. It was their duty to make a
survey, schedule, or inventory of the lands, to lay them out
under certain heads, and then to ascertain the value of
each, as preparatory to the division or partition. Bract.
fols. 72b, 75; Britt. c. 71.
EXTENT. Amount. Cox v. State Industrial Acci-
dent Commission, 121 P.2d 919, 921, 168 Or.
508, 23 P.2d 800, 159 A.L.R. 899.
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English Practice
A writ of execution issuing from the exchequer upon a
debt due the crown, or upon a debt due a private person,
if upon recognizance or statute merchant or staple, by
which the sheriff is directed to appraise the debtor's lands,
and, instead of selling them, to set them off to the creditor
for a term during which the rental will satisfy the judg-
ment. Hackett v. Amsden, 56 Vt. 201; Nason v. Fowler, 70
N.H. 291, 47 A. 263. It is so called because the sheriff is
to cause the lands to be appraised at their full extended
value before he delivers them to the plaintiff. Fitzh.N.B.
131. The term is sometimes used in the various states of
the United States to denote writs which give the creditor
possession of the debtor's lands for a limited time till the
debt be paid. Roberts v. Whiting, 16 Mass. 186.
Scotch Practice
The value or valuation of lands. Bell.
The rents, profits, and issues of lands. Skene.
For "Manorial Extent," see that title.
EXTENT IN AID. That kind of extent which is-
sues at the instance and for the benefit of a debtor
to the crown, for the recovery of a debt due to him-
self. 2 Tidd, Pr. 1045; 4 Steph.Comm. 47. This
writ was much abused, owing to some peculiar
privileges possessed by crown-debtors, and its use
was regulated by Stat. 57 Geo. III. c. 117. See 3
Bla.Comm. 419. The writ used by a debtor of the
king against his debtor to enforce the right of
preference given to him because of his indebted-
ness to the king. United States Fidelity & Guar-
anty Co. v. Carter, 161 Va. 381, 170 S.E. 764, 768,
'90 A.L.R. 191.
EXTENT IN CHIEF. A summary process by
which the king's action was commenced against his
debtor and his body, personal property (tangible
and intangible), and lands at once seized for the
satisfaction of the king's debt. United States Fi-
delity & Guaranty Co, v. Carter, 161 Va. 381, 170
S.E. 764, 768, 90 A.L.R. 191. The principal kind of
extent, issuing at the suit of the crown, for the re-
covery of the crown's debt. 4 Steph.Comm. 47.
An adverse proceeding by the king, for the recov-
ery of his own debt. 2 Tidd, Pr. 1045.
EXTENT OF SUCH PAYMENT. Under statute
extending right of subrogation to Federal Deposit
Insurance Corporation, phrase "to the extent of
such payment" is equivalent to term "pro tanto"
or words "as to the portion of the deposit paid".
Federal Deposit Ins. Corporation v. Citizens State
Bank of Niangua, C.C.A.Mo., 130 F.2d 102, 103.
EXTENTA MANERH. (The extent or survey of
a manor.) The title of a statute passed 4 Edw. I.
St. 1; being a sort of direction for making a sur-
vey or terrier of a manor, and all its appendages.
2 Reeve, Eng.Law, 140.
EXTENUATE. To lessen; to palliate; to miti-
gate. Connell v. State, 46 Tex.Cr.R. 259, 81 S.W.
748.
EXTENUATING CIRCUMSTANCES. Such as
render a delict or crime less aggravated, heinous,
or reprehensible than it would otherwise be, or
tend to palliate or lessen its guilt. Such circum-
stances may ordinarily be shown in order to re-
duce the punishment or damages.
EXTENUATION. That which renders a crime or
tort less heinous than i would be without it. It is
opposed to aggravation.
EXTERIOR. As used in policy means on the out-
side, external, pertaining to the outside part,
Northwestern Casualty & Surety Co. v. Barzune,
Tex.Civ.App., 42 S.W.2d 100, 103; the surface out-
side, Jackson Steam Laundry v. JEtna Casualty &
Surety Co., 156 Miss. 649, 126 So. 478, 480.
The phrase "exterior of the building" as used
in a lease of a building adjacent to another build-
ing, each having its own wall, the two against
each other forming a solid double wall, means co-
extensive with its external parts and including the
four walls. B. Siegel .Co. v. Codd, 183 Mich. 145,
149 N.W. 1015, 1017.
EXTERNAL. Apparent, outward, visible from
the outside, capable of being perceived. Toliver
v. Massachusetts Bonding & Insurance Co., Mo.
App., 47 S.W.2d 140, 141. Outward; exterior; re-
lating to the outside, as of the body; really being
without; acting from without, as the external
surface of a body; and outwardly; perceptible,
visible; physical or corporeal; as distinguished
from mental or moral. Provident Life & Accident
Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d
292, 296.
In double indemnity clause of life policy, the term
"external" applies to the force or means and not to the
injury. Hanna v. Rio Grande Nat. Life Ins. Co., Tex.Civ.
App., 181 S.W.2d 908, 911.
EXTERNAL, VIOLENT AND ACCIDENTAL
MEANS. Death through "external, violent and ac-
cidental means" necessarily implies that death did
not result indirectly from disease or bodily infirmi-
ty. Mutual Life Ins. Co. of New York v. Hassing,
C.C.A.10, 134 F.2d 714, 716.
EXTERRITORIALITY. The privilege of those
persons (such as foreign ministers) who, though
temporarily resident within a state, are not sub-
ject to the operation of its laws. The exemption
from the operation of the ordinary laws of the
state accorded to foreign monarchs temporarily
within the state and their retinue, to diplomatic
agents and the members of their household, to
consuls in non-Christian states, and to foreign
men of war in port. 1 Opp. 460-469. See Capitu-
lation; Extraterritoriality.
EXTERUS. Lat. A foreigner or alien; one born
abroad. The opposite of civis.
EXTERUS NON .HABET TERRAS. An alien
holds no lands. Tray.Lat.Max. 203.
EXTINCT. Extinguished. A rent is said to be
extinguished when it is destroyed and put out.
Co.Litt. 147b. See Extinguishment.
EXTINCTO SUBJECTO, TOLLITUR ADJUNC-
TUM. When the subject [or substance] is ex-
tinguished, the incident [or adjunct] ceases. Thus,
when the business for which a partnership has
been formed is completed, or brought to an end,
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EXTINGUISH
the partnership itself ceases. Inst. 3, 26, 6; 3
Kent, Comm. 52, note; Griswold v. Waddington,
16 Johns., N.Y., 438, 492.
EXTINGUISH. To put an end to. Onondaga Wa-
ter Service Corporation v. Crown Mills, Inc., 132
Misc. 848, 230 N.Y.S. 691, 698. To put out, quench,
stifle, as to extinguish a fire or flame. Gaily v.
Wynne, 96 Cal.App. 145, 273 P. 825, 826.
EXTINGUISHMENT. The destruction or cancel-
lation of a right, power, contract, or estate. The
annihilation of a collateral thing or subject in the
subject itself out of which it is derived. Prest.
Merg. 9. For the distinction between an extin-
guishment and passing a right, see 2 Shars.Bl.
Comm. 325, note.
"Extinguishment" is sometimes confounded with "merg-
er," though there is a clear distinction between them.
"Merger" is only a mode of extinguishment, and applies to
estates only under particular circumstances ; but "extin-
guishment" is a term of general application to rights, as
well as estates. 2 Crabb, Real Prop. p. 367, § 1487. "Extin-
guishment" connotes the end of a thing, precluding the
existence of future life therein ; in "mergers" there is a
carrying on of the substance of the thing, except that it is
merged into and becomes a part of a separate thing with a
new identity. McRoberts v. McRoberts, 177 Okl. 156, 57
P.2d 1175, 1177.
EXTINGUISHMENT OF COMMON. Loss of the
right to have common. This may happen from
various causes. 2 Steph.Com. 41; Co.Litt. 280; 1
Bacon, Abr. 628; Cro.Eliz. 594.
EXTINGUISHMENT OF COPYHOLD. In English
law. A copyhold is said to be extinguished when
the freehold and copyhold interests unite in the
same person and in the same right, which may be
either by the copyhold interest coming to the free-
hold or by the freehold interest coming to the
copyhold. 1 Crabb, Real Prop. p. 670, § 864; Hutt.
81; Cro.Eliz. 21; Wms.R.P. 287.
EXTINGUISHMENT OF DEBTS. This takes
place by payment; by accord and satisfaction;
by novation, or the substitution of a new debtor;
by merger, when the creditor recovers a judg-
ment or accepts a security of a higher nature than
the original obligation; by a release; by the mar-
riage of a feme sole creditor with the debtor, or
of an obligee with one of two joint obligors; and
where one of the parties, debtor or creditor, makes
the other his executor.
EXTINGUISHMENT OF LEGACY. This occurs
in case the identical thing bequeathed is not in
existence, or has been disposed of so that it does
not form part of the testator's estate, at the time
of his death. Welch v. Welch, 147 Miss. 728, 113
So. 197, 198. See Ademption.
EXTINGUISHMENT OF LIEN. Discharge by
operation of law. Schreiber v. Cook County, 388
Ill. 297, 58 N.E.2d 40, 44, 155 A.L.R. 1162.
EXTINGUISHMENT OF RENT. If a person have
a yearly rent of lands, and afterwards purchase
those lands, so that he has as good an estate in
the land as in the rent, the rent is extinguished.
Termes de la Ley; Cowell; Co.Litt. 147. Rent
may also be extinguished by conjunction of es-
tates, by confirmation, by grant, by release, and by
surrender. 1 Crabb, Real Prop. pp. 210-213, § 209.
EXTINGUISHMENT OF WAYS. This is usually
effected by unity of possession. As if a man have
a way over the close of another, and he purchase
that close, the way is extinguished. 1 Crabb, Real
Prop. p. 341,. § 384; 2 Washb.Real Prop.
EXTIRPATION. In English law. A species of de-
struction or waste, analogous to estrepement. See
Estrepement.
EXTIRPATIONE. A judicial writ, either before
or after judgment, that lay against a person who,
when a verdict was found against him for land,
etc., maliciously overthrew any house or extirpat-
ed any trees upon it. Reg.Jud. 13, 56.
EXTOCARE. In old records. To grub woodland,
and reduce it to arable or meadow; "to stock up."
Cowell.
EXTORSIVELY. A technical word used in in-
dictments for extortion.
It is a sufficient averment of a corrupt intent, in an
indictment for extortion, to allege that the defendant
"extorsively" took the unlawful fee. Leeman v. State, 35
Ark. 438, 37 Am.Rep. 44. When a person is charged with
extorsively taking, the very import of the word shows that
he is not acquiring possession of his own, 4 Cox, Cr.Cas.
387. In North Carolina the crime may be charged without
using this word, State v. Dickens, 2 N.C. 406.
EXTORT. To compel or coerce, as a confession
or information by any means serving to overcome
one's power of resistance, or making the confes-
sion or admission involuntary. Sutton v. Com-
monwealth, 207 Ky. 597, 269 S.W. 754, 757.
To gain by wrongful methods, to obtain In am
unlawful manner, to compel payments by means
of threats of injury to person, property, or reputa-
tion. McKenzie v. State, 113 Neb. 576, 204 N.W.
60, 61; State v. Richards, 97 Wash. 587, 167 P.
47, 48. To take from unlawfully; to exact some-
thing wrongfully by threats or putting in fear.
State v. Adams, Del., 106 A. 287, 288, 7 Boyce, 335.
See Extortion.
To wrest from, to exact, to take under a claim
of protection. Commonwealth v. Neubauer, 142
Pa.Super. 528, 16 A.2d 450, 452.
The natural meaning of the word "extort" is to obtain
money or other valuable thing either by compulsion, by
actual force, or by the force of motives applied to the will,
and often more overpowering and irresistible than physical
force. Com. v. O'Brien, 12 Cush., Mass., 90.
EXTORTIO EST CRIMEN QUANDO QUIS COL-
ORE OFFICH EXTORQUET QUOD NON EST
DEBITUM, VEL SUPRA DEBITUIVI, VEL ANTE
TEMPUS QUOD EST DEBITUM. 10 Coke, 102.
Extortion is a crime when, by color of office, any
person extorts that which is not due, or more than
is due, or before the time when it is due.
EXTORTION. Unlawful obtaining of money from
another. People v. Parkinson, 181 Misc. 603, 41
N.Y.S.2d 331, 334.
It has also been defined as corrupt demanding or receiv-
ing by a person in office of a fee for services which should
be performed gratuitously; or, where compensation is per-
missible, of a larger fee than the law justifies, or a fee not
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due, 2 Bish.Crim.Law, § 390; exaction of .money by reason
of oppressive conditions or circumstances, People v. Wel-
ler, 237 N.Y. 316, 143 N.E. 205, 208, 38 A.L.R. 613; obtain-
ing of property from another, with his consent, induced by
wrongful use of force or fear, or under color of official
right. And see State v. Logan, 104 La. 760, 29 So. 336; In
re Rempfer, 51 S.D. 393, 216 N.W. 355, 359, 55 A.L.R. 1346;
Lee v. State, 16 Ariz. 291, 145 P. 244, 246, Ann.Cas.1917B,
131. Obtaining of property of another by threats to injure
him and to destroy his property, State v. Phillips, 62 Idaho
656, 115 P.2d 418, 420. Taking or obtaining of anything
from another by means of illegal compulsion or oppressive
exaction, Daniels v. U. S., C.C.A.Cal., 17 F.2d 339, 342;
whether by an officer or otherwise, United States v. Dunk-
ley, D.C.Cal., 235 F. 1000, 1001. Unlawful taking by any
officer, by color of his office, of any money or thing of value
that is not due to him, or more than is due, or before it is
due, 4 Bla.Comm. 141; Com. v. Saulsbury, 152 Pa. 554, 25
A. 610; 1 Russ.Cr.* 144; 2 Bish.Cr.L. 390; U. S. v. Dea-
ver, D.C.N.C., 14 F. 595; Bush v. State, 19 Ariz. 195, 168
P. 508, 509. Wrongful exaction of money or other valuable
thing, either by compulsion, actual force, or by force of
motives applied at will, Commonwealth v. Donoghue, 250
Ky. 343, 63 S.W.2d 3, 89 A.L.R. 819.
A taking under color of office is of essence of offense. La
Tour v. Stone, 139 Fla. 681, 190 So. 704, 709, 710.
At common law, any oppression by color or pretense of
right, and particularly and technically the exaction or
unlawful taking by an officer of money or thing of value,
by color of his office, either when none at all is due, or not
so much is due, or when it is not yet due. Preston v.
Bacon, 4 Conn. 480. See People v. Barondess, 16 N.Y.S.
436, 61 Hun, 571; Murray v. State, 125 Tex.Cr.R. 252, 67
S.W.2d 274, 275; State v. Anderson, 66 N.D. 522, 267 N.W.
121, 123; Whart.Cr.L. 833.
Term applies to persons who exact money either for the
performance of a duty, the prevention of injury, or the
exercise of influence, and covers the obtaining of money or
other property by operating on fear or credulity, or by
promise to conceal the crimes of others. Commonwealth v.
Mann, 111 Pa.Super. 371, 170 A. 381, 382.
Term in comprehensive or general sense signifies any
oppression under color of right, and in strict or technical
sense signifies unlawful taking by any officer, under color
of office, of any money or thing of value not due him, more
than is due, or before it is due. State v. Barts, 132 N.J.L.
74, 38 A.2d 838, 843, 844, 848; State v. Vallee, 136 Me. 432,
12 A.2d 421.
To constitute "extortion," money or other thing of value
must have been wilfully and corruptly received. La Tour
v. Stone, 139 Fla. 681, 190 So. 709, 710.
To constitute "extortion," the wrongful use of fear must
be the operating cause producing consent. People v. Biggs,
178 Cal. 79, 172 P. 152, 153.
The distinction between "bribery" and "extortion" seems
to be this: the former offense consists in the offering a
present, or receiving one, if offered; the latter, in demand-
ing a fee or present, by color of office. Jacob.
For the distinction between "extortion" and
"exaction," see Exaction.
EXTRA. A Latin preposition, occurring in many
legal phrases, and meaning beyond, except, with-
out, out of, outside.
Work outside contract, performed by subcontractor was
properly claimed as an "extra." United States ex rel.
Park L. Davis Co. v. Matthew Cummings Co., D.C.Mass.,
27 F.Supp. 405, 407, 408.
EXTRA ALLOWANCE. In New York practice.
A sum in addition to costs, which may, in the dis-
cretion of the court, be allowed to the successful
party in cases of unusual difficulty. See Hascall
v. King, 54 App.Div. 441, 66 N.Y.S. 1112.
EXTRA COMMERCIA. Property once dedicated
to public use is "extra commercia". J. B. McCrary
Co. v. Town of Winnfield, D.C.La., 40 F.Supp. 427,
435.
EXTRA COMPENSATION. Within constitution-
al provision prohibiting Legislature from granting
extra compensation to contractor, is compensa-
tion over and above that fixed by contract for
agreed work, and is in nature of gratuity. Wes-
ton v. State, 262 N.Y. 46, 186 N.E. 197, 200, 88 A.L.
R. 1219.
Under statutes providing for extra compensation to cus-
toms inspectors payment made by licensees to Collector at
rates fixed by Secretary of the Treasury constitute "extra
compensation" over and above the annual salary, and not
a payment from licensees. United States v. Myers, Ct.C1.,
320 U.S. 561, 64 S.Ct. 337, 341, 88 L.Ed. 312.
EXTRA COSTS. In English practice. Those
charges which do not appear upon the face of
the proceedings, such as witnesses' expenses, fees
to counsel, attendances, court fees, etc., an affida-
vit of which must be made, to warrant the master
in allowing them upon taxation of costs. Whar-
ton.
EXTRA—DOTAL PROPERTY, In Louisiana this
term is used to designate that property which
forms no part of the dowry of a woman, and
which is also called "paraphernal property." Civ.
Code La. art. 2335. Fleitas v. Richardson, 147
U.S. 550, 13 S.Ct. 495, 37 L.Ed. 276.
EXTRA FEODUM. Out of his fee; out of the
seigniory, or not holden of him that claims it.
Co.Litt. lb; Reg.Orig. 97b.
EXTRA JUDICIUM. Extrajudicial; out of the
proper cause; out of court; beyond the jurisdic-
tion. See Extrajudicial.
EXTRA JUS. Beyond the law; more than the
law requires. In jure, vel extra jus. Bract. fol.
169b.
EXTRA LEGEM. Out of the law; out of the pro-
tection of the law.
EXTRA LEGEM POSITUS EST CIVILITER
MORTUUS. Co. Litt. 130. He who is placed out
of the law is civilly dead. A bankrupt is, as it
were, civilly dead. International Bank v. Sher-
man, 101 U.S. 406, 25 L.Ed. 866.
EXTRA PRIESENTIAM MARITI. Out of her
husband's presence.
EXTRA QUATUOR MARIA. Beyond the four
seas; out of the kingdom of England. 1 Bl.
Comm. 457.
EXTRA REGNUM. Out of the realm. 7 Coke,
16a; 2 Kent, Comm. 42, note.
EXTRA SERVICES, when used with reference to
officers, means services incident to the office in
question, but for which compensation has not
been provided by law. Miami County v. Blake, 21
Ind. 32.
EXTRA TERRITORIUM. Beyond or without the
territory. 6 Bin. 353; 2 Kent, Comm. 407. Out-
side the territorial limits of a state. Milne v.
Moreton, 6 Binn., Pa., 353, 6 Am.Dec. 466.
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EXTRA TERRITORIUM JUS DICENTI IMPUNE
NON PARETUR. One who exercises jurisdiction
out of his territory is not obeyed with impunity.
Dig. 2, 1, 20; Branch, Princ.; 10 Coke, 77; Story,
Confl.Laws, § 539. He who exercises judicial au-
thority beyond his proper limits cannot be obeyed
with safety.
EXTRA VIAM. Outside the way. Where the de-
fendant in trespass pleaded a right of way in jus-
tification, and the replication alleged that the tres-
pass was committed outside the limits of the way
claimed, these were the technical words to be us-
ed. 16 East, 343, 349.
EXTRA VIRES. Beyond powers. See Ultra
Vires.
EXTRA WORK. As used in connection with con-
struction contract, means work done not required
in performance of the contract, something done or
furnished in addition to or in excess of the re-
quirement of the contract. Kansas City Bridge
Co. v. State, 61 S.D. 580, 250 N.W. 343; work en-
tirely outside and independent of contract—some-
thing not required or contemplated in its perform-
ance. Bradshaw v. Wolfe City, Tex.Civ.App., 3
S.W.2d 527, 530; while additional work on the
other hand, is usually work which results from a
change or alteration in plans concerning work
which has to be done under a contract. De Mar-
tini v. Elade Realty Corp., Co.Ct., 52 N.Y.S.2d 487,
489; or such work as may fairly be presumed to
arise in the construction, and is within the con-
tract, although not included in the plans and spe-
cifications. Wilson v. Salt Lake City, 52 Utah,
506, 174 P. 847, 850.
But in a sewer construction contract providing that the
city engineer might make such changes in the lines, grades,
and dimensions which do not entail any extra expense to
the contractor, the word "extra" was deemed equivalent to
additional work which was required in the performance of
the contract, and not necessary to such performance in the
sense that the contract could not have been carried out
without it, but necessary in the sense that by means of it
the contract Could be more conveniently and beneficially
performed in the interest of both parties thereto, and did
not include work arising out of and entirely independent of
the contract, something not required in its performance.
City of Richmond v. Burton, 115 Va. 206, 78 S.E. 560, 563.
See, also, Fetterolf v. S. & L. Const. Co., 161 N.Y.S. 549,
550, 175 App.Div. 177; McHugh v. City of Tacoma, 76
Wash. 127, 135 P. 1011, 1015.
Materials and labor not contemplated by the contract,
but which are required by changes in the plans and speci-
fications made after the contract had been entered into, are
"extra work". Collins v. Hall, Tex.Civ.App., 161 S.W.2d
311, 314.
EXTRACT, v. To draw out or forth; to pull out
from a fixed position. Webster.
To "extract" ore within the meaning of a royalty provi-
sion in a mining lease contemplates not only the removal of
the ore from the mine and throwing it on a dump, but also
the separation of the ore from the dirt and refuse in which
it was found on the dump. Giersa v. Creech, Mo.App., 181
S. W. 588, 589.
EXTRACT, n. A portion or fragment of a writ-
ing. In Scotch law, the certified copy, by a clerk
of a court, of the proceedings in an action carried
on before the court, and of the judgment pro-
nounced; containing also an order for execution
or proceedings thereupon. Jacob; Whishaw.
EXTRACTA CURLE. In old English law. The
issues or profits of holding a court, arising from
the customary fees, etc.
EXTRADITION. The surrender by one state to
another of an individual accused or convicted of
an offense outside its own territory and within
the territorial jurisdiction of the other, which, be-
ing competent to try and punish him, demands the
surrender. Waller v. Jordan, 58 Ariz. 169, 118 P.
2d 450, 451.
The surrender of a criminal by a foreign state to which
he has fled for refuge from prosecution to the state within
whose jurisdiction the crime was committed, upon the
demand of the latter state, in order that he may be dealt
with according to its laws. Extradition may be accorded
as a mere matter of comity, or may take place under treaty
stipulations between the two nations. It also obtains as
between the different states of the American Union. Ter-
linden v. Ames, 184 U.S. 270, 22 S.Ct. 484, 46 L. Ed. 534;
Fong Yue Ting v. U. S., 149 U.S. 698, 13 S.Ct. 1016, 37
L. Ed. 905.
Extradition between the states must be considered and
defined to be a political duty of imperfect obligation,
founded upon compact, and requiring each state to sur-
render one who, having violated the criminal laws of
another state, has fled from its justice, and is found in the
state from which he is demanded, on demand of the execu-
tive authority of the state from which he fled. Abbott.
—Extradition warrant. See Executive Warrant.
EXTRAHAZARDOUS. In the law of insurance.
Characterized or attended by circumstances or
conditions of special and unusual danger. Rey-
nolds v. Insurance Co., 47 N.Y. 597; Russell v.
Insurance Co., 71 Iowa 69, 32 N.W. 95.
EXTRAHURA. In old English law. An animal
wandering or straying about, without an owner;
an estray. Spelman.
EXTRAJUDICIAL. That which is done, given,
or effected outside the course of regular judicial
proceedings; not founded upon, or unconnected
with, the action of a court of law; as extrajudicial
evidence, an extrajudicial oath.
That which, though done in the course of regu-
lar judicial proceedings, is unnecessary to such
proceedings, or interpolated, or beyond their
scope; as an extrajudicial opinion, (dictum.)
That which does not belong to the judge or
his jurisdiction, notwithstanding which he takes
cognizance of it.
EXTRAJUDICIAL CONFESSION. See Confes-
sion.
EXTRAJUDICIAL EVIDENCE is that which is
used to satisfy private persons as to facts requir-
ing proof.
EXTRAJUDICIAL OATH. One taken not in the
course of judicial proceedings, or taken without
any authority of law, though taken formally be-
fore a proper person. State v. Scatena, 84 Minn.
281, 87 N.W. 764.
EXTRAJUDICIALLY. The testimony of an ex-
pert witness based upon information obtained "ex-
trajudicially", which means in any other manner
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than from evidence given in court, is objection-
able. State v. David, 222 N.C. 242, 22 S.E.2d 633,
640.
EXTRALATERAL RIGHT. In mining law. The
right of the owner of a mining claim duly located
on the public domain to follow, and mine, any vein
or lode the apex of which lies within the boun-
daries of his location on the surface, notwithstand-
ing the course- of the vein on its dip or downward
direction may so far depart from the perpendicu-
lar as *to extend beyond the planes which would
be formed by the vertical extension downwards of
the side lines of his location. See Rev.Stat. U.S.
§ 2322, 30 U.S.C.A. § 26.
EXTRAMURAL. As applied to the powers of a
municipal corporation, its "extramural" powers
are those exercised outside the corporate limits,
as distinguished from "intramural" powers.
State v. Port of Astoria, 79 Or. 1, 154 P. 399, 404.
EXTRANEOUS EVIDENCE. With reference to
a contract, deed, will, or any writing, extraneous
evidence is such as is not furnished by the docu-
ment itself, but is derived from outside sources;
the same as evidence aliunde. See, also, Aliunde.
EXTRANEOUS OFFENSE. Is one that is ex-
tra, beyond, or foreign to the offense for which
the party is on trial. Ridinger v. State, 146 Tex.
Cr.R. 286, 174 S.W.2d 319, 320.
EXTRANEUS.
Old English law. One foreign born; a foreign-
er. 7 Coke, 16.
Roman law. An heir not born in the family
of the testator. Those of a foreign state. The
same as alienus. Vicat; Du Cange.
EXTRANEUS EST SUBDITUS QUI EXTRA TER-RAM, i. e., POTESTATEM REGIS NATUS EST.7 Coke, 16. A foreigner is a subject who is born
out of the territory,  e., government of the king.
EXTRAORDINARY. Out of the ordinary; ex-
ceeding the usual, average, or normal measure or
degree; beyond or out of the common order or
rule; not usual, regular, or of a customary kind;
remarkable; uncommon; rare. Puget Sound
Traction, Light & Power Co. v. Reynolds, D.C.
Wash., 223 F. 371, 378; Courtney v. Ocean Acci-
dent & Guaranty Corporation, 346 Mo. 703, 142 S.
W.2d 858, 861, 130 A.L.R. 234. The word is both
comprehensive and flexible in meaning. Zollman
v. Baltimore & 0. S. W. R. Co., 121 N.E. 135, 140,
70 Ind.App. 395.
Beyond or out of the common order or method; exceed-
ing the ordinary degree; not ordinary; unusual; em-
ployed for an exceptional purpose or on a special occasion;
as a noun it is defined as, something extraordinary; espe-
cially, an extraordinary expense or allowance; specifically
(Eng.) any allowance made to troops beyond the customary
gross paid. State v. Rogers, 142 Kan. 841, 52 P.2d 1185,
1195.
EXTRAORDINARY AVERAGE. A contribution
by all the parties concerned in a mercantile voy-
age, either as to the vessel or cargo, toward a loss
sustained by some of the parties in interest for
the benefit of all. Wilson v. Cross, 33 Cal. 69.
EXTRAORDINARY CARE. Synonymous with
greatest care, utmost care, highest degree of care.
Railroad Co. v. Baddeley, 54 Ill. 24, 5 Am.Rep. 71;
Railway Co. v. Causler, 97 Ala. 235, 12 So. 439;
Sorey v. Yazoo & M. V. R. Co., 17 La.App. 538, 136
So. 155, 158. See Care; Diligence; Negligence.
EXTRAORDINARY CASE. "The extraordinary
motions or cases contemplated by the statute are
such as do not ordinarily occur in the transaction
of human affairs; as, when a man has been con-
victed of murder, and it afterwards appears that
the supposed deceased is still alive, or where one
is convicted on the testimony of a witness who is
subsequently found guilty of perjury in giving
that testimony, or where there has been some
providential cause, and cases of like character."
Herrington v. State, 32 Ga.App. 83, 123 S.E. 147,
148; Farmers' Union Warehouse of Metter v.
Boyd, 31 Ga.App. 104, 119 S.E. 542.
The presence of an unexplored point of law de-,terminative of litigation makes litigation an "ex-
traordinary case" within statute authorizing addi-
tional allowance. National Bank of Far Rocka-
way v. City of New York, Sup., 46 N.Y.S.2d 153,
154.
EXTRAORDINARY DANGER. In the law of
master and servant, one not ordinarily incident to
the service. Piorkowski v. A. Leschen & Sons
Rope Co., 190 Mo.App. 597, 176 S.W. 258, 260.
EXTRAORDINARY DIVIDENDS. Cash dis-
bursements by "wasting asset" companies are
apportioned as "extraordinary dividends" where
they represent, in part at least, distribution of
proceeds of capital assets. In re Nirdlinger's Es-
tate, 327 Pa. 160, 193 A. 33.
"Extraordinary dividends" may assume unusual
form and amount, paid at irregular intervals from
accumulated surplus or earnings. In re Nirdling-
er's Estate, 327 Pa. 160, 193 A. 33.
EXTRAORDINARY EXPENSES. This term in a
constitutional provision that the state may incur
indebtedness for extraordinary expenses, means
other than ordinary expenses and such as are in-
curred by the state for the promotion of the gen-
eral welfare, compelled by some unforeseen con-
dition which is not regularly provided for by law,
such as flood, famine, fire, earthquake, pestilence,
war, or any other condition that will compel the
state to put forward its highest endeavors to pro-
tect the people, their property, liberty, or lives.
State v. Davis, 113 Kan. 4, 213 P. 171, 172.
EXTRAORDINARY FLOOD. One of those unex-
plained visitations whose comings are not fore-
shadowed by the usual course of nature, Jensen v.
Buffalo Drainage Dist. of Cloud County, 148 Kan.
712, 84 P.2d 961, 965; and whose magnitude and
destructiveness could not have been anticipated
or provided against by the exercise of ordinary
foresight. Eikland v. Casey, C.C.A.Alaska, 266
F. 821, 823, 12 A.L.R. 179; Clements v. Phoenix
Utility Co., 119 Kan. 190, 237 P. 1062, 1065.
One of such unusual occurrence that it could not have
been foreseen by men of ordinary experience and prudence.
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EXTRAORDINARY
Soules v. Northern Pac. R. Co., 34 N.D. 7, 157 N.W. 823,
830, L.R.A.1917A, 501. A flood is not extraordinary which
is such as residents of the neighborhood might expect from
their observation. City of Richmond v. Cheatwood, 130 Va.
76, 107 S.E. 830, 833.
EXTRAORDINARY GRAND JURY is limited
in scope of its investigation which may not go be-
yond terms of executive proclamation, and exam-
ination of witness must be confined within those
terms, and must not be used as means of disclos-
ing or intermeddling with extraneous matters.
People v. Doe, 247 App.Div. 324, 286 N.Y.S. 343.
EXTRAORDINARY HAZARD. If hazards are in-
creased by what other servants do, and injured
servant has no part in increasing them, they are
"extraordinary". Stone v. Howe, 92 N.H. 425, 32
A.2d 484, 487.
EXTRAORDINARY MOTIONS FOR NEW
TRIAL are such as do not ordinarily occur.
King v. State, 174 Ga. 432, 163 S.E. 168, 171.
EXTRAORDINARY OBSOLESCENCE. An ex-
tensive supersession of property used for trans-
mission or generation of power or instrumentali-
ties used for the transportation of passengers.
State ex rel. City of St. Louis v. Public Service
Commission, 341 Mo. 920, 110 S.W.2d 749, 775.
EXTRAORDINARY RAINFALL. Not such a
downpour of rain as may not have been known to
occur, but only such rainfall that is so unusual
and extraordinary that men of ordinary prudence
-vould not have anticipated and provided for.
City of Portsmouth v. Weiss, 145 Va. 94, 133 S.E.
781, 787. Cf. Extensive Rainfall.
EXTRAORDINARY REMEDIES. The writs of
mandamus, quo warranto, habeas corpus, and
some others are sotnetimes called "extraordinary
remedies," in contradistinction to the ordinary
remedy by action. Receivership is also said to be
an. "extraordinary remedy." Prudential Securi-
ties Co. v. Three Forks, H. & M. V. R. Co., 49
Mont. 567, 144 P. 158, 159.
EXTRAORDINARY REPAIRS. Within  the
meaning of a lease, such as • are made necessary
by some unusual or unforeseen occurrence which
does not destroy the building but merely renders
it less suited to the use for which it was intended.
Nixon v. Gammon, 191 Ky. 175, 229 S.W. 75, 77;
Courtney v. Ocean Accident & Guaranty Corpora-
tion, 346 Mo. 703, 142 S.W.2d 858, 861, 130 A.L.R.
234.
EXTRAORDINARY RISK. The expression is
generally used to describe risks arising from the
negligence of the master. Tenney v. Baird Ma-
chine Co., 87 Conn. 119, 87 A. 352, 354; Royal Col-
lieries Co. v. Wells, 210 Ky. 600, 276 S.W. 515, 518.
An "extraordinary risk" is one lying outside of
the sphere of the normal, arising out of condi-
tions not usual in the master's business. Brazeale
v. Piedmont Mfg. Co., 184 S.C. 471, 193 S.E. 39,
43. It is one which is not normally and neces-
sarily incident to the employment. Pollard v.
Weeks, 60 Ga.App. 664, 4 S.E.2d 722, 727. It is
one which is not naturally incident to occupation
and grows out of future of employer to furnish
safe place to work and proper and safe appliances
and tools for work. Snow v. Texas & P. Ry. Co.,
La.App., 166 So. 200, 203. It is one which may be
obviated by the exercise of reasonable care by
the employer. Wheeler v. Chicago & W. I. R. Co.,
267 Ill. 306, 108 N.E. 330, 336; Louisiana Ry. &
Na y
. Co. of Texas v. Disheroon, Tex.Civ.App., 295
S.W. 250, 252. It is a risk which is only indirectly
connected with the employment. Emerick v. Sla-
ronian Roman Greek Catholic Union, 93 N.J.L.
282, 108 A. 223.
As respects assumption of risks, an "extraordinary risk"
is not one which is uncommon or unusual in the sense that
it is rare, but is one which arises out of unusual conditions
not resulting in the ordinary course of business, as by rea-
son of the master's negligence, Leyba v. Albuquerque &
Cerrillos Coal Co., 22 N.M. 455, 164 P. 823, 825; Houston
Lighting & Power Co., 1905 v. Conley, Tex.Civ.App., 171
S.W. 561, 563; it is a risk arising from the master's negli-
gence, Simowitz v. Register, 60 Ga.App. 180, 3 S.E.2d 231,
233; it is a risk which may be obviated by exercise of rea-
sonable care on master's part. Tyner v. Atlantic Coast
Line R. Co., 149 S.C. 89, 146 S.E. 663, 670. A servant does
not assume "extraordinary risks" unless they are known
to and appreciated by him, or are so obvious that ordi-
narily prudent person under circumstances would have
observed and appreciated them, Brazeale v. Piedmont Mfg.
Co., 184 S.C. 471, 193 S.E. 39, 43; unless they are known
or obvious. Pollard v. Weeks, 60 Ga.App. 664, 4 S.E.2d 722,
727. If injury results from master's breach of duty of due
care the risk is "extraordinary" and is assumed only if
servant knew or ought to have known of dangerous condi-
tion and comprehended it or must be taken to have known
of and comprehended it. Stone v. Howe, 92 N.H. 425, 32
A.2d 484, 486.
Under Federal Employers' Liability Act, "extraordinary
risks" are risks not normally and necessarily incident to
employment, Southern Ry. Co. v. Blanton, 63 Ga.App. 93,
10 S.E.2d 430, 434; an employee is not treated as assuming
extraordinary risks arising from defects due to negligence.
of employer unless he has knowledge of them or danger is
so obvious that it would be appreciated by ordinarily pru-
dent person, Snow v. Texas & P. Ry. Co., La.App., 166 So.
200, 203.
EXTRAORDINARY SERVICES. As applied to
the care and attention of an old and infirm person,
such services as are unusual, extra, or above those
generally required or to be anticipated in usual
course of things, not such services as are rendered
to an old and feeble person, even though sick,
which are not different from those usually requir-
ed by such persons in similar circumstances. Al-
len v. Smith, 208 Ky. 207, 270 S.W. 782, 783.
As used in statute authorizing allowance of additional
compensation to guardian, means services in addition to
guardian's usual or regular services. In re Gislason's
Estate, 73 N.D. 731, 19 N.W.2d 447, 451, 452.
EXTRAORDINARY STORM is not necessarily
an unprecedented one, but one that happens so
rarely that it is unusual and not ordinarily to be
expected. Spitzer v. City of Waterbury, 113 Conn.
84, 154 A. 157, 160; Oklahoma City v. Evans, 173
Okl. 586, 50 P.2d 234, 238.
EXTRAPAROCHIAL. Out of a parish; not
within the bounds or limits of any parish. 1 Bl.
Comm. 113, 284.
EXTRATERRITORIALITY. The extraterritorial
operation of laws; that is, their operation upon
persons, rights, or jural relations, existing be-
yond the limits of the enacting state, but still
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EXTREMIS
amendable to its laws. A term used, especially
formerly, to express, in lieu of the word exterri-
tonality (q. v.), the exemption from the obliga-
tion of the laws of a state granted to foreign dip-
lomatic agents, warships, etc. Wheaton, § 224.
The term is used to indicate jurisdiction exercised
by a nation in other countries, by treaty, as, by
the United States in China or Egypt; or by its
own ministers or consuls in foreign lands. Crime
is said to be extraterritorial when committed in
a country other than that of the forum in which
the party is tried. See 2 Moore, Int.L.Dig.; U. S.
v. Lucas, D.C.Wash., 6 F.2d 327, 328.
EXTRAVAGANTES. In canon law. Those de-
cretal epistles which were published after the
Clementines.
They were so called because at first they were not
digested or arranged with the other papal constitutions,
but seemed to be, as it were, detached from the canon law.
They continued to be called by the same name when they
were afterwards inserted in the body of the canon law.
The first extravagantes are those of Pope John XXII., suc-
cessor of Clement V. The last collection was brought down
to the year 1483, and was called the "Common Extrava-
gantes," notwithstanding that they were likewise incor-
porated with the rest of the canon law. Enc.Lond.
EXTREME. At the utmost point, edge, or bor-
der; most remote. Last; conclusive. Greatest,
highest, strongest, or the like. Immoderate; vio-
lent. Webster.
EXTREME AND REPEATED CRUELTY. Acts
of physical violence producing bodily harm.
Holmstedt v. Holmstedt, 383 Ill. 290, 49 N.E.2d 25,
29; physical acts of violence, bodily harm or suf-
fering, or such acts as endanger life or limb, or
raise a reasonable apprehension of great bodily
harm, but does not include bad temper, petulance,
rude language, want of civil attentions, or angry
and abusive words. Moore v. Moore, 362 Ill. 177,
199 N.E. 98, 99.
EXTREME CARE. Such care as prudent man
would exercise in place of danger. Schlossstein
v. Bernstein, 293 Pa. 245, 142 A. 324, 327.
EXTREME CASE. An extreme case, in which
an injunction granted inadvertently or improvi-
dently may be dissolved ex parte, means one in
which the injunction was manifestly granted im-
properly, and its continuation until hearing in due
course might cause great injury. Teacle v.
Hughes, 146 La. 195, 83 So. 457, 458.
EXTREME CRUELTY is condition of extreme
discomfort and wretchedness incapacitating
spouse to discharge duties or seriously endanger-
ing health. McKee v. McKee, 107 N.J.Eq. 1, 151
A. 620, 622. It is grave and serious misconduct
which defeats marriage relation. Kennedy v. Ken-
nedy, 101 Fla. 239, 134 So. 201, 203.
Any habitual indulgence by one spouse, that causes men-
tal torture, undermines the health, or tends to dethrone
reason of other, is sufficient to constitute "extreme
cruelty". Bergman v. Bergman, 145 Fla. 10, 199 So. 920,
922.
As respects constructive abandonment, "extreme cruelty"
per se by husband is conduct which law presumes to be
malicious, intended to force separation, and dangerous to
life or health of wife, or ncapacitates her from performing
her duties. Fallon v. Fallon, 111 N.J.Eq. 512, 162 A. 406,
409.
Extreme cruelty is conduct or treatment which : causes
reasonable apprehension of bodily hurt, Chisholm v. Chis-
holm, 98 Fla. 1196, 125 So. 694, 702; constitutes aggravated
or inhuman ill treatment, having regard to the physical and
temperamental constitution of the parties and all the sur-
rounding circumstances, Donald v. Donald, 21 Fla. 573;
Blain v. Blain, 45 Vt. 544; Poor v. Poor, 8 N.H. 315, 29
Am. Dec. 664 ; damages health, Chisholm v. Chisholm, 98
Fla. 1196, 125 So. 694, 703; destroys concord, harmony,
happiness, or affection, Hassell v. Hassell, 185 Okl. 154, 90
P.2d 885; destroys happiness and health and defeats the
very purposes of matrimony, Hassell v. Hassell, 185 Okl.
154, 90 P.2d 885; destroys legitimate ends and objects of
matrimony, Dier v. Dier, 141 Neb. 685, 4 N.W.2d 731, 734;
McCarty v. McCarty, 193 Okl. 18, 141 P.2d 103, 104;
destroys peace of mind, Dier v. Dier, 141 Neb. 685, 4
N.W.2d 731, 734; destroys peace of mind as to seriously
impair health or endanger life, Smith v. Smith, 61 Ariz.
373, 149 P.2d 683, 684; McCarty v. McCarty, 193 Okl. 18, 141
P.2d 103, 104; Hornor v. Hornor, 151 Okl. 292, 3 P.2d 670,
671; endangers health and prevents proper discharge of
matrimonial duties, Brinkerhoff v. Brinkerhoff, 106 N.J.Eq.
331, 150 A. 679, 680; endangers health or safety, Mac-
Arthur v. MacArthur, 135 N.J.Eq. 215, 37 A.2d 76; whether
actually inflicted or reasonably apprehended, Rosengren v.
Rosengren, 115 N.J.Eq. 283, 170 A. 660, 661; Bamberg v.
Bamberg, 123 N.J.Eq. 570, 199 A. 54, 55; endangers life or
health, Fallon v. Fallon, 111 N:J.Eq. 512, 162 A. 406, 408;
Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694, 702;
impairs bodily health, Dier v. Dier, 141 Neb. 685, 4 N.W.2d
731, 734; incapacitates one from performing marital duties,
Fallon v. Fallon, 111 N.J.Eq. 512, 162 A. 406, 408; inflicts
grievous bodily injury or grievous mental suffering. Civ.
Code Cal. § 94, McFall v. McFall, 58 Cal.App.2d 208, 136
P.2d 580, 583; produces bodily hurt to physical system or
reasonable apprehension thereof, Morris v. Morris, 132 Okl.
291, 133 Okl. 176, 270 P. 833, 835; produces continuous, in-
tense mental pain and suffering, danger to health, or a
forced abnegation of the marital relation, Currie v. Currie,
120 Fla. 28, 162 So. 152; wounds, feelings, Nelson v. Nel-
son, 89 Okl. 318, 117 P.2d 110, 111; Smith v. Smith, 61 Ariz.
373, 149 P.2d 683, 684; renders cohabitation intolerable,
Stocker v. Stocker, 173 Okl. 64, 47 P.2d 107, 108; renders
cohabitation intolerable and unsafe, Chisholm v. Chis-
holm, 98 Fla. 1196, 125 So. 694, 703.
Physical violence is extreme cruelty. Baker v. Baker, 94
Fla. 1001, 114 So. 661, 663. But "extreme cruelty" is not
confined to physical violence. Henderson v. Henderson, 137
Fla. 770, 189 So. 24, 25; Bastien v. Bastien, 57 R.I. 176, 189
A. 37, 38.
To constitute "extreme cruelty" within divorce statute,
the acts must be directed toward the other party and must
be committed with a malevolent motive. Nason v. Nason,
48 Cal.App.2d 500, 120 P.2d 37, 39, 40.
Voluntary or intentional extreme cruelty is the "extreme
cruelty," which is ground for divorce, Heim v. Heim, 35
Ohio App. 408, 172 N.E. 451.
EXTREME HAZARD. To constitute extreme
hazard, the situation of a vessel must be such that
there is imminent danger of her being lost, not-
withstanding all the means that can be applied to
get her off. King v. Hartford Ins. Co., 1 Conn.
421.
EXTREME LOW TIDE are tides which are lower
than lower low. State v. Edwards, 188 Wash. 467,
62 P.2d 1094, 1095.
EXTREMIS. When a person is sick, beyond the
hope of recovery, and near death, he is said to be
in extremis.
EXTREMIS PROBATIS, PRIESUMUNTUR MED-
IA. Extremes being proved, intermediate things
are presumed. Tray,' Lat. Max. 207.
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EXTREMITY
EXTREMITY. The furthest point. Roberts v.Hart, Tex.Civ.App., 165 S.W. 473, 476.
EXTRINSIC. Foreign; from outside sources;
dehors. As to "Extrinsic Fraud", see "Fraud."
Grounds for quashing of indictment may be matters
"intrinsic" to the pleading, as defects apparent upon its
face, United States v. Frankfeld, D.C.D.C., 38 F.Supp. 1018,
1019.
EXTRINSIC AMBIGUITY. In a written contract
is an uncertainty which does not arise by the
terms of the instrument itself, but is created by
some collateral matter not appearing in the in-
strument. Pacific Indemnity Co. v. California
Electric Works, 29 Cal.App.2d 260, 84 P.2d 313,
320.
EXTRINSIC EVIDENCE is external evidence, or
that which is not contained in the body of an
agreement, contract, and the like. Extrinsic evi-
dence is also said to be evidence not legitimate-
ly before the tribunal in which the determina-
tion is made. Baldwin v. City of Buffalo, 35 N.Y.
375, 382.
EXTUMZE. In old records. Relics. Cowell.
EXUERE PATRIAM. To throw off or renounce
one's country or native allegiance; to expatriate
one's self. Phillim. Dom. 18.
EXULARE. In old English law. To exile or ban-
ish. Nullus liber homo, exuletur, nisi, etc., no
freeman shall be exiled, unless, etc. Magna Char-
ta, c. 29; 2 Inst. 47.
EXUPERARE. To overcome; to apprehend or
take. Leg. Edm. c. 2.
EY. A watery place; water. Co.Litt. 6.
EYDE. Aid; assistance; relief. A subsidy.
EYEWITNESS. A person who could testify as to
what he had seen. Wigginton v. Order of United
Commercial Travelers of America, C.C.A.Ind., 126
F.2d 659, 662, 665, 666, 667. One who saw the act,
fact, or transaction to which he testifies. Distin-
guished from an ear-witness, (auritus.) Bankers'
Health & Accident Ass'n v. Wilkes, Tex.Civ.App.,
209 S.W. 230, 233; Pannell v. Sovereign Camp, W.
O.W., 171 Tenn. 245, 102 S.W.2d 50, 52. Persons
able to testify from their observation. Hayes v.
Stunkard, 233 Iowa 582, 10 N.W.2d 19.
"Eye-witness" does not necessarily mean one who
obtains knowledge of an act through the sense of sight
alone, and may include one who is able to identify a person
by his voice and who could not recognize the person on
account of absence of sight. Anderson v. Commonwealth,
291 Ky. 727, 166 S.W.2d 30, 36.
EYEWITNESS RULE is that, in absence of eye-
witness, or of any obtainable direct evidence as
to what deceased did or failed to do by way of pre-
caution, at and immediately before injury, pre-
sumption is that he, prompted by natural instinct,
was in exercise of care for his own safety, obtains.
Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910,
915.
EYGNE. The same as "eigne" (q. v.).
EYOTT. A small island arising in a river. Fleta,
1. 3, c. 2, § b; Bract. 1. 2, c. 2.
EYRE. A journey; a court of itinerant justices.
Justices in eyre were judges commissioned in Anglo-Nor-
man times in England to travel systematically through the
kingdom, once in seven years, holding courts in specified
places for, the trial of certain descriptions of causes.
EYRER. L. Fr. To travel or journey; to go
about or itinerate. Britt. c. 2. See Eyre.
EZARDAR. In Hindu law. A farmer or renter
of land in the districts of Hindoostan.
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FABRICA
F
F. The sixth letter of the alphabet.
Under the old English criminal law, this letter was
branded upon felons upon their being admitted to clergy;
as also upon those convicted of fights or frays, or falsity.
Jacob; Cowell; 2 Reeve, Eng.Law, 392; 4 Reeve, Eng.Law,
485.
F. A. A. Federal Aviation Agency.
F. A. A. In marine insurance. "Free of all
average," denoting that the insurance is against
total loss only. Wharton.
F. A. S. Free alongside ship. Larkin v. Geisen-
heimer, 201 App.Div. 741, 195 N.Y.S. 577, 578;
Iwai & Co. v. Hercules Powder Co., 162 Ga. 795,
134 S.E. 763. The term implies delivery at dock
for ship named. Christenson v. Gorton-Pew Fish-
eries Co., C.C.A.N.Y., 8 F.2d 689, 691.
A lumber contract providing that prices were f. o. b,
f. a. s. is too indefinite for enforcement; the expression
"f. o. b." designating that the seller should bear' the
expense of loading onto the vessel, while the expression
"f. a. s." denotes that the lumber should merely be placed
within reach of the vessel's tackle. McGowin Lumber &
Export Co. v. R. J. & B. F. Lumber Co., 192 Ala. 35, 68 So.
263, 264.
The delivery of goods under contract "F. A. S." which
means free aside ship, is complete and relieves consignor
of liability after the goods have been delivered in good
order to dock where ship is to sail. Tex-O-Kan Flour Mills
Co. v. Nord, La.App., 18 So.2d 50, 54.
F. C. A. Farm Credit Administration.
F. C. C. Federal Communications Commission.
F. C. L. means Femme Couleur Libre. Sunseri v.
Cassagne, 191 La. 209, 185 So. 1, 4.
F. D. A. Food and Drug Administration.
F. D. I. C. Federal Deposit Insurance Corporation.
F. G. A. In marine insurance. "Free from gen-
eral average"; also, sometimes, "foreign general
average." The precise meaning of this abbrevia-
tion must be gathered from the context. Wharton.
F. H. A. Federal Housing Administration; Farm-
ers Home Administration.
F. H. L. B. B. Federal Home Loan Bank Board.
F. M. C. S. Federal Mediation and Conciliation
Service.
F. N. M. A. Federal National Mortgage Associa-
tion.
F. 0. B. Term "f. o. b." is an abbreviation for
"free on board," and means that seller or con-
signor of goods will deliver them on car, vessel,
or other conveyance by which they are to be trans-
ported without expense to buyer or consignee.
Hatcher v. Ferguson, 33 Idaho, 639, 198 P. 680,
681, 16 A.L.R. 590; Swerdfeger v. United Ac-
ceptance Corporation, 9 Cal.App.2d 590, 50 P.2d
818, 820; Olsen v. McMaken & Pentzien, 139 Neb.
506, 297 N.W. 830, 832; Fernholtz Machinery Co.
v. Wilson, 118 Cal.App. 573, 5 P.2d 679, 682.
Contract provision for shipment of goods by seller
"f. o. b." place of manufacture means that they are to be
delivered to carrier by seller without ex p ense to buyer.
State ex rel. Day Pulverizer Co. v. Fitts, 166 Tenn. 156, 60
S.W.2d 167; Humphries v. Frick Co., 56 Ga.App. 124, 192
S.E. 247, 248.
The term "F. 0. B." as used in contract for purchase of
scrap iron from railroad for overseas shipment, might rea-
sonably be construed as meaning merely that purchase
price of scrap iron was fixed on basis that railroad would
transport it free of charge and not as indicating the point
of passage of title. Expression "F. 0. B." signifies gen-
erally an intention to pass title. Southern Pac. Co. v.
Hyman-Michaels Co., 63 Cal.App.2d 757, 147 P.2d 692, 696.
"F. o. b. factory" means "1. o. b. railroad cars at fac-
tory," obligating seller to deliver to carrier without cost
to buyer, who takes risk thereafter. Richter v. Zoccoli,
8 N.J.Misc. 289, 150 A. 1, 2.
Generally, place "f. o. b." where goods are sold is
regarded as place of delivery, but effect of term "t. o. b."
depends on connection in which used. Craig Brokerage
Co. v. Joseph A. Goddard Co., 92 Ind. App. 234, 175 N.E.
19, 22.
The initials "f. o. b." are generally construed as an
intention that the price is to be paid when the property is
delivered to carrier. Rudy-Patrick Seed Co. v. Roseman,
247 Iowa 597, 13 N.W.2d 347, 349, 350.
Under contract to sell sage leaves providing for shipment
"f. o, b." Greek port, buyer and not seller had the duty of
supplying ship at Greek port. Carvel v. John Kellys (Lon-
don), Limited, Sup., 53 N.Y.S.2d 640, 641.
When used in connection with the price of goods, the
term is commonly construed as fixing only the price, and
not as relating to the time, place, or mode of delivery.
Lee v. Northway Motor Sales Co., R.I., 121 A. 425; Pond
Creek Mill & Elevator Co. v. Clark, C.C.A.Ill., 270 F. 482,
486; Bott v. N. Snellenburg & Co., 177 Va. 331, 14 S.E.2d
372, 374.
F. P. A. In marine insurance. "Free from par-
ticular average." Wharton. See Average.
F. R. S. Federal Reserve System.
F. T. C. Federal Trade Commission.
FABRIC. With reference to the' reinforcement of
concrete, a union of drawn wires made up in rows.
Soule v. Northern Construction Co., 33 Cal.App.
300, 165 P. 21, 22.
A woven, felted, or krlitted material for wear or orna-
ment, as cloth, felt, hosiery, or lace; also the material
used in its making; something that. has been fabricated,
constructed, or put together; any complex construction;
a system built up of correlated parts; structure or edifice.
Guaranty Trust Co. of New York v. Johns-Manville Corpo-
ration, D.C.N.Y., 14 F.Supp. 792, 797.
Something that has been fabricated, constructed, or put
together; the structure of anything or anything manufac-
tured, and in a broad sense includes a flexible sheet metal.
Johns-Manville Corporation v. National Tank Seal Co.,
C.C.A.Okl., 49 F.2d 142, 145.
FABRIC LANDS. In English law. Lands given
towards the maintenance, rebuilding, or repairing
of cathedral and other churches. Cowell; Blount.
Called by the Saxons timber-lands. Spelman.
It was the custom, says Cowell, for almost every one to
give by will more or less to the fabric of the cathedral or
parish church where he lived. These lands so given were
called fabric lands, because given ad fabricam ecclesia3
reparandam (for repairing the fabric of the church).
FABRICA. In old English law. The making or
coining of money.
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FABRIC ARE
FABRICARE. Lat. To make. Used in old Eng-
lish law of a lawful coining, and also of an un-
lawful making or counterfeiting of coin. Used in
an indictment for forging a bill of lading; 1 Salk.
341.
FABRICATE. To invent; to devise falsely. In-
vent is sometimes used in a bad sense, but fabri-
cate never in any other.
To fabricate a story implies that it is so contrary to
probability as to require the skill of a workman to induce
belief in it. Crabbe, Syn. The word implies fraud or false-
hood; a false or fraudulent concoction, knowing it to be
wrong. L, R. 10 Q.B. 162.
To fabricate evidence is to arrange or manufacture cir-
cumstances or indicia, after the fact committed, with the
purpose of using them as evidence, and of deceitfully mak-
ing them appear as if accidental or undesigned; to devise
falsely or contrive by artifice with the intention to deceive.
Such evidence may be wholly forged and artificial, or it
may consist in so warping and distorting real facts as to
create an erroneous impression in the minds of those who
observe them and then presenting such impression as true
and genuine.
FABRICATED EVIDENCE. Evidence manufac-
tured or arranged after the fact, and either whol-
ly false or else warped and discolored by artifice
and contrivance with a deceitful intent. See su-
pra.
FABRICATED FACT. In the law of evidence. A
fact existing only in statement, without any
foundation in truth. An actual or genuine fact
to which a false appearance has been designedly
given; a physical object placed in a false connec-
tion with another, or with a person on whom it is
designed to cast suspicion.
FABRICATING. .The word "fabricating," in its
context, does not mean "manufacturing," but
means cutting, carving, dressing, shaping and
working over stone. Commonwealth v. Paul W.
Bounds Co., 316 Pa. 29, 173 A. 633.
FABRICATION. "Manufacture" and "fabrica-
tion," are often, in broadest sense, interchange-
able in meaning; definition in particular instance
depending on environment of particular use of
either. Union Wire Rope Corporation v. _Atchi-
son, T. & S. F. Ry. Co., C.C.A.Mo., 66 F.2d 965, 970.
The word "fabrication," meaning "making," although
not generally synonymous with "reworking," meaning a
working over, was expressly so used in railroad tariff in
question, as distinguished from "manufacture." Atchison,
T. & S. F. IL Co. v. Union Wire Rope Corporation,
D.C.Mo., 1 F.Supp. 399.
FABULA. In old European law. A contract or
formal agreement; particularly used in the Lom-
bardic and Visigothic laws to denote a marriage
contract or a will. Burrill.
FACE. That which is shown by the mere lan-
guage employed without any explanation, modi-
fication, or addition from extrinsic facts or evi-
dence, the principal sum which it expresses to be
due or payable, without any additions in the way
of interest and costs. Cunningham v. Great
Southern Life Ins. Co., Tex.Civ.App., 66 S.W.2d
765, 773. The outward appearance or aspect of a
thing.
For "Regular on its face," see that title.
The surface of anything; especially the front, upper, or
outer part or surface; that which particularly offers itself
to the view of a spectator. The words of a written paper
In their apparent or obvious meaning, as, the face of a
note, bill, bond, check, draft, judgment record, or contract;
the face of a judgment for which it was rendered exclusive
of interest. Cunningham v. Great Southern Life Ins. Co.,
Tex.Civ.App., 66 S.W.2d 765, 773.
FACE AMOUNT. The "face amount" of an in-
strument is that shown by the mere language em-
ployed, and excludes any accrued interest. Burns
v. Corn Exch. Nat. Bank of Omaha, Neb., 33 Wyo.
474, 240 P. 683, 687. See Face of instrument.
The face amount of a policy means the amount which is,
in all events, payable under the policy as straight life
insurance without regard to any additional features, such
as accident or disability insurance, Smith v. Equitable Life
Assur. Soc. of United States, 232 Mo.App. 935, 107 S.W.2d
191, 195; face values specified in policies plus dividend
additions postdating lapse, and exclusive of accidental
death benefits, Valenti v. Prudential Ins. Co. of America,
C.C.A.Mo., 71 F.2d 229, 233.
FACE AMOUNT INSURED BY THE POLICY.
Within statute relating to extended life insurance,
means the amount which is, in all events, payable
under the policy as straight life insurance without
regard to additional features such as accident or
disability insurance. Wilkins v. Metropolitan Life
Ins. Co., 350 Mo. 185, 165 S.W.2d 858, 861, 862;
Wilkins v. Metropolitan Life Ins. Co., 236 Mo.App.
586, 159 S.W.2d 354, 356.
FACE OF BOOK. Under an act providing that a
public or private statute or the proceedings of any
legislative body purporting on the face of the book
to be printed by authority of the government of
the state are evidence without further proof, the
"face of the book" and the "title page" need not
coincide, as "face" is used in contradistinction to
"cover." Pensacola, St. A. & G. S. S. Co. v.
Brooks, 14 Ala.App. 364, 70 So. 968, 970.
FACE OF INSTRUMENT. That which is shown
by the language employed, without any explana-
tion, modification, or addition from extrinsic facts
or evidence. Adopted in Re Stoneman, Sur., 146
N.Y.S. 172, 175; Investors' Syndicate v. Willcuts,
D.C.Minn., 45 F.2d 900, 902. Thus, if the express
terms of the paper disclose a fatal legal defect, it
is said to be "void on its face." Regarded as an
evidence of debt, the face of an instrument is the
principal sum which it expresses to be due or pay-
able, without any additions in the way of interest
or costs. Osgood v. Bringolf, 32 Iowa, 265. See,
also, State v. Newby, 169 Wis. 208, 171 N.W. 953,
954.
FACE OF JUDGMENT. The sum for which it
was rendered, exclusive of interest. Osgood v.
Bringolf, 32 Iowa, 265. See, also, Face of instru-
ment.
FACE OF POLICY. A phrase which, as used in
a statute forbidding life insurance policies to con-
tain provision for any mode of settlement at ma-
turity of less value than the amount insured on
the "face of the policy," does not mean merely the
first page, but denotes the entire insurance con-
tract contained in the policy, including a rider at-
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FACILITY
705
tached and referred to on the first page. Julius
v. Metropolitan Life Ins. Co., 299 Ill. 343, 132 N.E.
435, 437, 17 A.L.R. 956.
FACE OF RECORD. The entire record in a case,
not merely what the judgment recites. Carson
v. Taylor, Tex.Civ.App., 261 S.W. 824; San Ber-
nardo Townsite Co. v. Hocker, Tex.Civ.App., 176
S.W. 644, 646.
The "face of the record" means, in a criminal case, the
indictment and the verdict. Jones v. State, 58 Ga.App. 374,
198 S.E. 566.
The phrases "judgment roll," "judgment record," and
"face of the record" are synonymous. Every part of trial
proceedings reserved in courts of record under direction of
court for purpose of its records constitutes the "judgment
roll." Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d
564, 566, 111 A.L.R. 1152,
FACE VALUE. This term, in a statute taxing
transfers of corporate stock, means par value.
Goodyear Tire & Rubber Co. v. U. S., 273 U.S. 100,
47 S.Ct. 263, 71 L.Ed. 558. See, also In re Stone-
man, Sur., 146 N.Y.S. 172, 174.
As used in statute concerning acceptance of bonds as ball
means that value, written or printed on face of instrument
and the unmatured coupons attached thereto, without refer-
ence to the actual or market value of bonds. Wilson v. Jus-
tice's Court of Township of San Diego, 22 Cal.App.2d 278,
70 P.2d 695, 696.
The "face value" of an interest bearing note, is the prin-
cipal plus accrued interest. American Nat. Bank of Ports-
mouth v. Ames, 169 Va. 711, 194 S.E. 784, 798.
The value which can be ascertained from the language of
the instrument without aid from extrinsic facts or evi-
dence. Investors' Syndicate v. Willcuts, D.C.Minn., 45 F.2d
900, 902.
FACERE. Lat. To do; to make. Thus, facere
defaltam, to make default; facere duellum, to
make the duel, or make or do battle; facere finem,
to make or pay a fine; facere legem, to make
one's law; facere sacramentum, to make oath.
FACIAL DISFIGUREMENT. That which im-
pairs or injures the beauty, symmetry, or appear-
ance of a person, that which renders unsightly,
misshapen or imperfect or deforms in some man-
ner. Ferguson v. State Highway Department, 197
S.C. 520, 15 S.E.2d 775, 778; Poole v. Saxon Mills,
192 S.C. 339, 6 S.E.2d 761, 764.
:FACIA& That you cause.
Occurring in the phrases "scare facias," (that you cause
to know,) "fieri facias," (that you cause to be made,) etc.
Used also in the phrases Do ut facias (I give that you may
do), Facio ut facias (I do that you may do), two of the
four divisions of considerations made by Blackstone, 2
Comm. 444. See Facio ut des; Facio ut facias.
FACIENDO. In doing or paying; in some activi-
ty.
FACIES. Lat. The face or countenance; the ex-
terior appearance or view; hence, contemplation
or study of a thing on its external or apparent
side.
Thus, prima facie means at the first inspection, on a pre-
liminary or exterior scrutiny. When we speak of a "prima
facie case," we mean one which, on its own showing, on a
first examination, or without investigating any alleged
defenses, is apparently good and maintainable.
FACILE. In Scotch law. Easily persuaded; eas-
ily imposed upon. Bell.
Black's Law Dictionary Revised 4th Ed.-45
FACILITATE. To make easy or less difficult, or
to free from difficulty or impediment. Pon Wing
Quong v. United States, C.C.A.Cal., 111 F.2d 751,
756. To make more easy or less difficult; free
more or less completely from obstruction or hin-
drance; lessen the labor of: United States v. One
Dodge Coupe, Motor No. D14-105424, Serial No.
30284066, D.C.N.Y., 43 F.Supp. 60, 61.
'FACILITIES. That which promotes the ease of
any action, operation, transaction, or course of
conduct. Webster. The term denotes inanimate
means rather than human agencies. Sloss-Shef-
field Steel & Iron Co. v. Smith, 185 Ala. 607, 64
So. 337, 338.
Also, a name formerly given to certain notes
of some of the banks in the state of Connecticut,
which were made payable in two years after the
close of the war of 1812. Springfield Bank v. Mer-
rick, 14 Mass. 322.
As applied to carriers, means everything necessary for
the convenience of passengers and the safety and prompt
transportation of freight; everything incident to the gen-
eral, prompt, safe, and impartial performance of the duties
to the public at large imposed by the state, in the proper
exercise of its police power, upon transportation or trans-
mission companies. As applied to a ferry franchise, every-
thing incident to the general, prompt, and safe carriage of
passengers, boats in good repair, appliances answering the
purpose, and readiness and willingness to perform the
services incident to the grant. Fraters v. Keeling, 20 Cal.
App.2d 490, 67 P.2d 118, 119.
As used in phrase "special facilities within the place of
amusement," in statute creating amusement tax, referred
to personal accommodations furnished for comfort of
patron to enable him to obtain a better view of what he
paid for when he entered the ground or to more conven-
iently do so. Martin v. F. H. Bee Shows, 271 Ky. 822, 113
S.W.2d 448, 452.
As used in statute giving Public Service Commission con-
trol over service and facilities of public service companies,
means something owned by or under the control of a pub-
lic utility. Borough of Swarthmore v. Public Service Com-
mission, 277 Pa. 472, 121 A. 488, 489.
Electric company which transmitted electricity from gen-
erating plant through a line to another company which
transmitted such electricity in interstate commerce, oper-
ated "facilities" subject to jurisdiction of Federal Power
Commission. Jersey Central Power & Light Co. v. Federal
Power Commission, C.C.A.3, 129 F.2d 183, 195.
Electric company's corporate organization, contracts,
accounts, memorandum, papers, and other records consti-
tuted "facilities" within Federal Power Act. The word
"facilities" embraces anything which aids or makes easier
the performance of the activities involved in the business
of a person or corporation. Hartford Electric Light Co. v.
Federal Power Commission, C.C.A.2, 131 F.2d 953, 960, 961,
962.
Freight cars are "facilities" of transportation as defined
by Interstate Commerce Act. General American Tank Car
Corporation v. El Dorado Terminal Co., Cal., 308 U.S. 422,
60 S.Ct. 325, 329, 84 L.Ed. 361.
Sidetracks constituting part of a transportation system
are "facilities" of the railroad, even though privately.
owned, Lehigh Nay . Coal Co. v. Pennsylvania Public Util-
ity Commission, 133 Pa.Super. 67, 1 A.2d 540, 544.
Street railroad's "facilities" include tracks and land rea-
sonably necessary for operation of railroad and accom-
modation of patrons. Munoz v. Porto Rico Ry., Light &
Power Co., C.C.A.Puerto Rico, 74 F.2d 816, 821.
FACILITY. In Scotch law. Pliancy of disposi-
tion. Bell.
A switch engine and crew is a "facility" within statute
authorizing rental thereof by railroad. Nekoosa-Edwards
Paper Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 217Wis. 426, 259 N.W. 618.

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FACILITY
As ordinarily used, Is not as narrow a term as "instru-
mentality." Nekoosa-Edwards Paper Co. v. Minneapolis,
St. P. & S. S. M. Ry. Co., 217 Wis. 426, 259 N.W. 618.
Convenient means. Briggs Mfg. Co. v. U. S., D.C.Conn.,
30 F.2d 962, 964.
Where electric company transmitted electricity to
another company which transmitted it in interstate com-
merce, the former company's line was a "facility" subject
to jurisdiction of Federal Power Commission. Jersey Cen-
tral Power & Light Co. v. Federal Power Commission, 319
U.S. 61, 63 S.Ct. 953, 959, 87 L. Ed. 1258.
FACILITY OF PAYMENT CLAUSE, is appoint..
ment by assured and beneficiary of persons au-
thorized to receive payment. French v. Lanham,
App.D.C., 57 F.2d 422; Fulcher v. Parker, 169
Va. 479, 194 S.E. 714, 716. It confers on insurer an
option as to whom it will make payment, Metro-
politan Life Ins. Co. v. Brown for Use and Benefit
of Fleming, 25 Tenn.App. 514, 160 S.W.2d 434, 438;
Rohde v. Metropolitan Life Ins. Co., 233 Mo.App.
865, 111 S.W.2d 1006.
Such clause in group policy giving employer under cer-
tain contingencies power to designate beneficiary controls
only where no other beneficiary is named. Potter v.
Young, 193 Ark. 957, 104 S.W.2d 802, 804.
FACING. In deed containing building restric-
tions applicable to lots "facing" and "having a
frontage" on named street, quoted words as ap-
plied to oblong lots referred to the street which
buildings to be erected on the lots were intended
to face. Aller v. Berkeley Hall School Founda-
tion, 40 Cal.App.2d 31, 103 P.2d 1052, 1054.
FACINUS QUOS INQUINAT )SQUAT. Guilt
makes equal those whom it stains.
FACIO UT DES. (Lat. I do that you may give.)
A species of contract in the civil law (being one of the
innominate contracts) which occurs when a man agrees to
perform anything for a price either specifically mentioned
or left to the determination of the law to set a value on it;
as when a servant hires himself to his master for certain
wages or an agreed sum of money. 2 B1.Comm. 445. Also,
the consideration of that species of contract.
FACIO UT FACIAS. (Lat. I do that you may
do.)
The consideration of that species of contract in the civil
law, or the contract itself (being one of the innominate
contracts), which occurs when I agree with a man to do
his work for him if he will do mine for me; or if two
persons agree to marry together, or to do any other posi-
tive acts on both sides; or it may be to forbear on one side
in consideration of something done on the other. 2
Bl.Comm. 444.
FACSIMILE. An exact copy, preserving all the
marks of the original.
FACSIMILE PROBATE. In England, where the
construction of a will may be affected by the ap-
pearance of the original paper, the court will order
the probate to pass in facsimile, as it may possibly
help to show the meaning of the testator. 1 Wil-
liams, Ex'rs, 7th Ed., 331, 386, 566.
FACT. A thing done; an action performed or an
incident transpiring; an event or circumstance;
an actual occurrence. An actual happening in
time or space or an event mental or physical.
Fowler-Curtis Co. v. Dean, 203 App.Div. 317, 196
N.Y.S. 750, 754; German-American Ins. Co. v.
Huntley, 62 Okl. 39, 161 P. 815, 817; Rost v. Kes-
sler, 267 App.Div. 686, 49 N.Y.S.2d 97, 99. That
which has taken place, not what might or might
not have taken place. Churchill v. Meade, 92 Or.
626, 182 P. 368, 371.
A fact is either a state of things, that is, an existence, or
a motion, that is, an event. 1 Benth.Jud.Ev. 48.
Fact (factum, fait) stands in lawbooks for : 1. An act;
2. For a completed and operative transaction brought
about by sealing and executing a certain sort of writing,
and so for the instrument itself, a deed (factuin); 3. As
designating what exists, in contradistinction to what should
exist (de facto as contrasted with de jure); 4. As indicat-
ing things, events, actions, conditions, as happening, exist-
ing, really taking place. Thayer, Evid. 190.
"Fact" was formerly used almost exclusively in the sense
of "action" or "deed." This usage survives in phrases
such as "accessory before the fact."
As used in statute providing that malice shall be pre-
sumed from publication of matter not privileged, unless
the "fact" and the testimony rebut such presumption,
means the act, the thing done, the circumstance, the pub-
lication itself. Reininger v. Prickett, 192 Okl. 486, 137 P.2d
595, 597.
As used in statute requiring statement of facts constitut-
ing cause of action, "facts" mean narrative of events, acts,
and things done which show legal liability of defendant to
plaintiff. Rhoads v. Columbia Fire Underwriters' Agency,
128 Neb. 710, 260 N.W. 174.
"Facts" to which Supreme Court is limited on certiorari
to quash Court of Appeals' decision for conflict comprise
record before Court of Appeals, evidence, documentary and
oral, and instructions and pleadings. State ex rel. Hors-
pool v. Haid, 328 Mo. 327, 40 S.W.2d 611, 613.
Good reputation of an accused when proved is a "fact".
State v., Fenimore, 3 Terry 183, 29 A.2d 170, 171. Intent is
a "fact". Majestic Securities Corporation v. Commissioner
of Internal Revenue, C.C.A.8, 120 F.2d 12, 14. "Knowl-
edge" is a "fact", and an "assertion of knowledge", when
knowledge does not exist, is an assertion not in accordance
with the facts. Eastern States Petroleum Co. v. Universal
Oil Products Co., 24 Del.Ch. 11, 3 A.2d 768, 775. Represen-
tations as to boundaries of land are representations of
"fact". Algee v. Hillman Inv. Co., 12 Wash.2d 672, 123
P.2d 332, 334. Where knowledge is possible, one who repre-
sents a mere belief as knowledge misrepresents a "fact",
Sovereign Pocohontas Co. v. Bond, 74 App.D.C. 175, 120
F.2d 39, 40.
Law and Fact as Distinguishable
"Fact" is very frequently used in opposition or
contrast to "law."
Thus, questions of fact are for the jury; questions of
law for the court. So an attorney at law is an officer of the
courts of justice; an attorney in fact is appointed by the
written authorization of a principal to manage business
affairs usually not professional. Fraud in fact consists in
an actual intention to defraud, carried into effect; while
fraud imputed by law arises from the man's conduct in its
necessary relations and consequences.
A "fact", as distinguished from the "law", may be taken
as that out of which the point of law arises, that which is
asserted to be or not to be, and is to be presumed or
proved to be or not to be for the purpose of applying or
refusing to apply a rule of law. Hinckley v. Town of
Barnstable, 311 Mass. 600, 42 N.E.2d 581, 584.
Law is a principle; fact is an event. Law is conceived;
fact is actual. Law is a rule of duty; fact is that which
has been according to or in contravention of the rule. The
distinction Is well illustrated in the rule that the existence
of foreign laws is matter of fact. Within the territory of
its jurisdiction, law operates as an obligatory rule which
judges must recognize and enforce; but, in a tribunal out-
side that jurisdiction, it loses its obligatory force and its
claim to judicial notice. The fact that it exists, if impor-
tant to the rights of parties, must be alleged and proved
the same as the actual existence of any other institution.
Abbott.
Law of Evidence
A circumstance, event or occurrence as it actual..
ly takes or took place; a physical object or ap-
pearance, as it actually exists or existed. An ac-
tual and absolute reality, as distinguished from
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FACTOR
mere supposition or opinion; a truth, as distin-
guished from fiction or error. Burrill, Circ.Ev. 218.
"Circumstances" are but minor facts, Scott v. State, 57
Ga.App. 489, 195 S.E. 923, 924. Facts admitted upon trial
of cause become "evidence". American Extension School
of Law v. Ragland, 232 Mo.App. 763, 112 S.W.2d 110, 113.
Facts judicially noticed are equivalent to evidence. Zicke-
foose v. Thompson, 347 Mo. 579, 148 S.W.2d 784, 792.
"Facts" and "evidence" are sometimes used interchange-
ably. Mackey v. First Nat. Bank, Mo.App., 293 S.W. 66, 71.
But the terms are not really synonymous; evidence,
broadly defined, being means from which an inference may
logically be drawn as to existence of a fact. Tjernstrom
v. Ford Motor Co., 285 Mich. 450, 280 N.W. 823, 825. Yet,
although "facts" and the "evidence" are quite different, it
sometimes may happen that they constitute one and the
same thing. Gates v. Haw, 150 Ind. 370, 50 N.E. 299.
Hypothetical question propounded to plaintiff's witness in
which an assumed fact was that a test made by another
expert had a specified result referred to a "fact" and not an
"opinion" of the expert. Cody v. Toiler Drug Co., 232
Iowa 475, 5 N.W.2d 824, 828.
In rule 41(b), providing for motion for dismissal at close
of plaintiff's evidence in nonjury case on ground that upon
the facts and the law plaintiff has shown no right to relief,
the "facts" referred to are the prima facie facts shown by
plaintiff's evidence viewed in light most favorable to him.
Schad v. Twentieth Cehtury-Fox Film Corporation, C.C.A.
Pa., 136 F.2d 991, 993.
Ownership of property is, generally, a "fact" to which
a witness may testify. Diamond v. Grath, 46 Cal.App.2d
443, 116 P.2d 114, 116.
Statement that cause of death was a gunshot wound was
a statement of "fact" but further statements ,,that such
wound was self-inflicted and that death was suicide were
mere expressions of "opinion". Kentucky Home Mut. Life
Ins. Co. v. Watts, 298 Ky. 471, 183 S.W.2d 499, 502.
Where person states matter which might otherwise be
only an "opinion" as an existing fact material to the
transaction, the statement clearly becomes a statement of
"fact". Fidelity & Casualty Co. of New York v. J. D. Pitt-
man Tractor Co., 244 Ala. 354, 13 So.2d 669, 672.
Words "facts" and "circumstances" are used inter-
changeably in the phrase circumstantial evidence. Pulliam
v. State, 196 Ga. 782, 28 S.E.2d 139, 147.
Workmen's compensation claimant's testimony that he
was well related to a "fact" and not to an "opinion".
Texas Employers Ins. Ass'n v. Griffis, Tex.Civ.App., 141
S.W.2d 687, 690.
Truth and Fact Distinguished
The terms "fact" and "truth" are often used in
common parlance as synonymous, but, as em-
ployed in reference to pleading, they are widely
different. A fact in pleading is a circumstance,
act, event, or incident; a truth is the legal princi-
ple which declares or governs the facts and their
operative effect. Admitting the facts stated in a
complaint, the truth may be that the plaintiff is not
entitled, upon the face of his complaint, to what he
claims. The mode in which a defendant sets up
that truth for his protection is a demurrer. Drake
v. Cockroft, 4 E. D. Smith, N.Y., 37.
For "Collateral Facts," "Dispositive Facts," "Evi-
dentiary Facts," "Finding of Fact," "Immaterial
Facts," "Jurisdictional Facts," "Material Fact,"
"Principal Fact," and "Ultimate Facts," see those
heads.
FACT MATERIAL TO RISK. See Material Fact.
FACTA. In old English law. Deeds. Facta ar-
morum, deeds or feats of arms; that is, jousts or
tournaments. Cowell.
Facts. Facta et casus, facts and cases. Bract.
fol. lb.
FACTA SUNT POTENTIORA VERBIS. Deeds
[or facts] are more powerful than words.
FACTA TENENT MULTA QUIE FIERI PRO-
HIBENTUR. 12 Coke, 124. Deeds contain many
things which are prohibited to be done.
FACTIO TESTAMENTI. In the civil law. The
right, power, or capacity of making a will; called
"factio activa." Inst. 2, 10, 6.
The right or capacity of taking by will; called
"f actio passiva." Inst. 2, 10, 6; Vicat, Voc.Jur.
FACTO. In fact; by an act; by the act or fact.
Ipso facto, by the act itself ; by the mere effect of
a fact, without anything superadded, or any pro-
ceeding upon it to give it effect. 3 Kent, Comm.
55, 58.
FACTO ET ANIMO. In fact and intent. North-
western Mortgage & Security Co. v. Noel Const.
Co., 71 N.D. 256, 300 N.W. 28, 31,
FACTOR. A commercial agent, employed by a
principal to sell merchandise consigned to him for
that purpose, for and in behalf of the principal,
but usually in his own name, being intrusted with
the possession and control of the goods, and being
remunerated by a commission, commonly called
"factorage." Howland v. Woodruff, 60 N.Y. 80; In
re Rabenau, D.C.Mo., 118 F. 474; Graham v. Duck-
wall, 8 Bush, Ky., 17; Pal.Ag. 13; Sto.Ag. § 33;
Com.Dig. Merchant, B; Malynes, Lex Merc. 81;
Beawes, Lex Merc. 44; 3 Chit.Com.L. 193; 2 Kent
622; 1 Bell, Comm. 385, § 408; 2 B. & Ald. 143.
In Scotch law, a person appointed to transact
business or manage affairs for another, but more
particularly an estate-agent or one intrusted with
the management of a landed estate, who finds
tenants, makes leases, collects the rents, etc.
In some of the states, the person who is else-
where called "garnishee" or "trustee." See Fac-
torizing Process.
A commercial agent to whom the possession of personalty
is entrusted by or for the owner, to be sold, for a com-
pensation, in pursuance of the agent's usual trade or busi-
ness, with title to goods remaining in principal and the
"factor" being merely a bailee for the purposes of the
agency. Neild v. District of Columbia, 71 App.D.C. 306, 110
F.2d 246, 259.
Although a "factor" is in the last analysis an agent, the
agency is a limited one. Falls Rubber Co. v. La Fon, Tex.
Civ.App., 256 S.W. 577, 579.
An agent employed to sell goods for principal, The Robin
Gray, D.C.N.Y., 53 F.2d 1037, 1041. An agent employed to
sell goods for his principal which are in his possession for
a commission and ordinary consignment contract create
relation of factor and principal. Robertson v. State, 207
Ind. 374, 192 N.E. 887, 888.
An agent employed to sell goods or merchandise con-
signed or delivered to him, by or for his principal, for a
compensation, commonly called factorage or commission,
and an agent for the sale of goods in his possession or con-
signed to him. Hughes v. Young, 17 Tenn.App. 24, 65
S.W.2d 858.
An agent, who, in pursuance of his usual trade or busi-
ness, and for compensation, sells goods or merchandise con-
signed or intrusted to his possession for that purpose by or
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FACTOR
for the owner. Sams v. Arthur, 135 S.C. 123, 133 S.E. 205,
207; M. H. Thomas & Co. v. Hawthorne, Tex.Civ.App., 245
S.W. 966, 971; Lemnos Broad Silk Works v. Spiegelberg,
127 Misc.Rep. 855, 217 N.Y.S. 595, 597.
An agent who, in the pursuit of an independent calling,
is employed by another to sell property for him, and is
vested by the latter with the possession or control of the
property, or authorized to receive payment therefor from
the purchaser. Civ.Code Cal. § 2026; Comp.Laws N.D.1913,
§ 6145; Comp.Laws S.D.1929, § 1288; Leland v. Oliver, 82
Cal.App. 474, 255 P. 775, 777.
One who, In pursuance of business, receives goods from
principal and sells them for compensation called factorage
or commission. Holleman v. Taylor, 200 N.C. 618, 158 S.E.
88, 89.
One whose business is to receive and sell goods for a com-
mission, being intrusted with the possession of the goods to
be sold, and usually selling in his own name. City of
Atlanta v. York Mfg. Co., 155 Ga. 33, 116 S.E. 195, 199;
Tyson v. Jennings Produce Co., 16 Ala.App. 374, 77 So. 986,
987; G. H. Hammond Co. v. Joseph Mercantile Co., 144
Ark. 108, 222 S. W. 27, 28.
In the old law, one to whom goods are consigned to sell
by a merchant at a distance from the place of sale. Eames
v. H. B. Claflin Co., C.C.A.N.Y., 239 F. 631, 635.
Broker and Factor Distinguished
A factor differs from a "broker" in that he is in-
trusted with the possession, management, and con-
trol of the goods, (which gives him a special prop-
erty in them,) ; while a broker acts as a mere in-
termediary without control or possession of the
property. A factor may buy and sell in his own
name, as well as in that of the principal, while a
broker, as such, cannot ordinarily buy or sell in
his own name. Commercial Inv. Trust v. Stewart,
235 Mich. 502, 209 N.W. 660, 661; Sutton &
Cummins v. Kiel Cheese & Butter Co., 155 Ky.
465, 159 S.W. 950, 951; Hughes v. Young, 17
Tenn.App. 24, 65 S.W.2d 858; Gadsden County
Tobacco Co. v. Corry, 103 Fla. 217, 137 So. 255, 257.
A factor or commission merchant has a lien
upon the goods for his charges, advances, and
commissions, while the broker has no control of
the property and is responsible only for bad faith.
McCornick & Co., Bankers v. Tolmie Bros., 42
Idaho 1, 243 P. 355, 358.
A factor or commission merchant is one who has the
actual or technical possession of goods or wares of another
for sale. A "merchandise broker" is one who negotiates
the sale of merchandise without having it in his possession
or control. He is simply an agent with very limited pow-
ers, J. M. Robinson, Norton & Co. v. Cotton Factory, 124
Ky. 435, 99 S.W. 305, 102 S.W. 869, 8 L.R.A.,N.S., 474.
Commission Merchants and Factors
as Synonymous
Factors are also frequently called "commission
merchants;" and it is said that there is no dif-
ference in the meaning of these terms, the latter
being perhaps more commonly used in America.
Thompson v. Woodruff, 7 Cold. 410; Duguid v.
Edwards, 50 Barb., N.Y., 288; Lyon v. Alvord, 18
Conn. 80. See, also, Commission Merchant.
Domestic and Foreign Factors
Factors are called "domestic" or "foreign" ac-
cording as they reside and do business in the same
state or country with the principal or in a different
state or country.
A domestic factor is sometimes called a "home" factor.
Ruffner v. Hewitt, 7 W.Va. 585; 1 Term 112; 4 Maule & S.
576.
A "foreign factor," as understood in marine matters, was
a person who had charge of the cargo to handle it, dispose
of it, convert it into money, or exchange it for other prop-
erty, but who had nothing to do with the management of
the boat when he sailed thereon, at which time he was
called a "supercargo." Gilchrist Transp. Co. v. Worthing-
ton & Sill, 193 App.Div. 250, 184 N.Y.S. 81, 83; Beawes,
Lex Mere. 44; Liverm.Ag. 69; 1 Domat, b. 1, t. 16, § 3,
art. 2.
Judicial Factor
In Scotch law. A factor appointed by the courts
in certain cases where it becomes necessary to in-
trust the management of property to another
than the owner, as, where the latter is insane or
imbecile or the infant heir of a decedent.
Supercargo as a Factor
Where an owner of goods to be shipped by sea
consigns them to the care of an agent, who sails
on the same vessel, has charge of the cargo on
board, sells it abroad, and buys a return cargo out
of the proceeds, such agent is strictly and properly
a "factor," though in maritime law and usage he
is commonly called a "supercargo." Beawes, Lex
Merc. 44, 47; Liverm.Ag. 69, 70.
FACTORAGE. The wages, allowance, or commis-
sion paid to a factor for his services. Winne v.
Hammond, 37 Ill. 103; State v. Thompson, 25 S.W.
346, 120 Mo. 12.
' FACTORING is a system involving notice to the
trade debtors, and is confined principally to the
textile industry. Corn Exchange Nat. Bank &
Trust Co., Philadelphia, v. Klauder, Pa., 318 U.S.
434, 63 S.Ct. 679, 682, 87 L.Ed. 884, 144 A.L.R. 1189.
FACTORIZING PROCESS. In American law. A.
process by which the effects of a debtor are at-
tached in the hands of a third person. A term
peculiar to the practice in Vermont and Connecti-
cut. Otherwise termed "trustee process," "gar-
nishment," and process by "foreign attachment."
Cross v. Brown, 19 R.I. 220, 33 A. 147; Drake, At-
tach. § 451.
FACTORS' ACTS. The name given to several
English statutes (6 Geo. IV. c. 94; 5 & 6 Vict. c. 39;
40 & 41 Vict. c. 39) by which a factor is enabled to
make a valid pledge of the goods, or of any part
thereof, to one who believes him to be the bona
fide owner of the goods. Similar legislation is
not uncommon in the United States.
FACTORY,
American Law
A building or group of buildings appropriated
to the manufacture of goods, including the ma-
chinery necessary to produce the goods, and the
engine or other power by which the machinery is
propelled; the place where workers are employed
in fabricating goods, wares, or utensils. Cent.
Diet.; Mayhew v. Hardesty, 8 Md. 479. A struc-
ture where something is made or manufactured.
People v. R. F. Stevens Co., 178 App.Div. 306, 165
N.Y.S. 39.
An undertaking in which the business of working at
commodities is carried on with power-driven machinery.
Gowey v. Seattle Lighting Co., 108 Wash. 479, 184 P. 339.
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FACTUM
Any mill, workshop, or any manufacturing or business
establishment, and all buildings, sheds, structures, or other
places used for or in connection therewith where one or
more persons are employed at labor. Under such statute,
the term includes a machine shop, People v. Transit
Development Co., 165 N.Y.S. 114, 115, 178 App.Div. 288;
and a theatrical company; Ursprung v. Winter Garden Co.,
169 N.Y.S. 738, 745, 183 App.Div. 718; but not a butche:
shop; O'Connor v. Webber, 219 N.Y. 439, 114 N.E. 799.
Any premises where steam, water, or other mechanical
power is used in the aid of any manufacturing process
without reference to whether it is inclosed in a building.
Casey v. Barber Asphalt Paving Co., C.C.A.Wash., 202
F. 1, 5.
Any premises wherein power is used in manufacturing,
making, altering, adapting, ornamenting, finishing, repair-
ing, or renovating articles for purpose of trade or gain, or
of business carried on therein. Bradley v. Blakley, La.App.,
147 So. 709, 710; Menke v. Hauber, 99 Kan. 171, 160 P.
1017, 1018.
The word does not necessarily mean a single building or
edifice, but may apply to several, where they are used in
connection with each other, for a common purpose, and
stand together in the same inclosure. Liebenstein v. Insur-
ance Co., 45 Ill. 303. And see Hernischel v. Texas Drug
Co., 26 Tex.Civ.App. 1, 61 S.W. 419; Schott v. Harvey, 105
Pa. 227, 51 Am.Rep. 201; Amberg v. Kinley, 214 N.Y. 531,
108 N.E. 830, 833, L.R.A.1915E, 519.
To bring acts within statutory definition of "fac-
tory" as used in statute relating to employees' rest
each week, the acts must be manufacturing ones.
People v. Middletown & U. R. Co., 169 Misc. 773, 8
N.Y.S.2d 193, 195, 196.
English Law and Statutes
The term includes all buildings and premises
wherein, or within the close or curtilage of which,
steam, water, or any mechanical power is used to
move or work any machinery employed in prepar-
ing, manufacturing, or finishing cotton, wool, hair,
silk, flax, hemp, jute, or tow. So defined by the
statute 7 Vict. c. 15, § 73.
By later acts this definition has been extended to various
other manufacturing places. Mozley & Whitley.
Also a place where a considerable number of factors
reside, in order to negotiate for their masters or employers.
Enc. Brit.
Scotch Law
A species of contract or employment which falls
under the general designation of "agency," but
which partakes both of the nature of a mandate
and of a bailment of the kind called "locatio ad
operandum." 1 Bell, Comm. 259.
FACTORY ACTS. Laws enacted for the purpose
of regulating the hours of work, and the sanitary
condition, and preserving the health and morals,
of the employes, and promoting the education of
young persons employed at such labor.
FACTORY PRICES. The prices at which goods
may be bought at the factories, as distinguished
from the prices of goods bought in the market
after they have passed into the hands of third
persons or shop-keepers. Whipple v. Levett, 2
Mason, 90, Fed.Cas.No.17,518.
FACTORY RATING. Of carrying capacity of
motortrucks as used in statute imposing license
fee means customary public announcement of
manufacturer in placing motortrucks on market.
Memphis Steam Laundry Co. v. Crenshaw, 166
Tenn. 168, 61 S.W.2d 669.
FACTS. See Fact.
FACTS CANNOT LIE. 18 How.State Tr. 1187;
17 How.State Tr. 1430; but see Best, Ev. 587.
FACTS IN ISSUE. Those matters of fact on
which the plaintiff proceeds by his action, and
which the defendant controverts in his pleadings.
Maeder Steel Products Co. v. Zanello, 109 Or. 562,
220 P. 155, 158; King v. Chase, 15 N.H. 9, 41 Am.
Dec. 675; Caperton v. Schmidt, 26 Cal. 494, 85
Am.Dec. 187.
FACTS INCOMPLETE. A certificate of trial
judge to bill of exceptions not certifying to correct-
ness of any recital therein and only certifying that
the bill "is facts incomplete", that is, not finished,
not perfect, defective, verifies nothing and brings
nothing before the Court of Appeals for review.
Loving v. Kamm, 34 N.E.2d 591.
FACTS OF THE CASE. With which Supreme
Court will deal in case brought from Court of
Appeal by writ of review, are facts that were
proved or admitted, not deductions or conclusions
as to duty of parties or negligence. Llorens v.
McCann, 187 La. 642, 175 So. 442, 444.
FACTS WELL PLEADED are those of a substan-
tive nature necessary to the framing of the issue
submitted. Bushman v. Barlow, 321 Mo. 1052, 15
S.W.2d 329, 331.
FACTUM. Lat. With respect to change of domi-
cile, "factum" is person's physical presence in new
domicile. Guilfoil v. Hayes, 169 Va. 548, 194 S.E.
804, 807.
Civil Law. Fact; a fact; a matter of fact, as dis-
tinguished from a matter of law. Dig. 41, 2, 1, 3.
French Law. A memoir which contains concisely
set down the fact on which a contest has hap-
pened, the means on which a party founds his
pretensions, with the refutation of the means of
the adverse party. Vicat.
Old English Law. A deed; a person's act and
deed. A culpable or criminal act; an act not
founded in law. Anything stated or made cer-
tain; a deed of conveyance; a written instrument
under seal: called, also, charta. Spelman; 2 Bla.
Comm. 295. A fact; a circumstance; particular-
ly a fact in evidence. Bract. fol. lb. Factum pro-
bandum (the fact to be proved). 1 Greenl. Ev. §
13.
Old European Law. A portion or allotment of
land; otherwise called a hide, bovata, etc. Spel-
man.
Testamentary Law. The execution or due execu-
tion of a will. The factum of an instrument means
not barely the signing of it, and the formal pub-
lication or delivery, but proof that the party well
knew and understood the contents thereof, and
did give, will, dispose, and do, in all things, as in
the said will is contained. Weatherhead v. Bas-
kerville, 11 How. 354, 13 L.Ed. 717.
FACTUM A JUDICE QUOD AD EJUS OFFICIUM
NON SPECTAT NON RATUM EST. An action of
a judge which relates not to his office is of no
force. Dig. 50, 17, 170; 10 Coke, 76; Broom, Max.
93, n.
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FACTUM
FACTUM CUIQUE SUUM NON ADVERSARIO,
NOCERE DEBET. Dig. 50, 17, 155. A party's
own act should prejudice himself, not his adver-
sary.
FACTUM INFECTUM FIERI NEQUIT. A thing
done cannot be undone. 1 Kames, Eq. 96, 259.
FACTUM JURIDICUM. A juridical fact. Denotes
one of the factors or elements constituting an
obligation.
FACTUM NEGANTIS NULLA PROBATIO SIT.
Cod. 4, 19, 23. There is no proof incumbent upon
him who denies a fact.
"FACTUM" NON DICITUR QUOD NON PERSE-
VERAT. That is not called a "deed" which does
not continue operative. That is not said to be
done which does not last. 5 Coke, 96; Shep.
Touch., Preston ed. 391.
FACTUM PROBANDUM. Lat. In the law of
evidence. The fact to be proved; a fact which
is in issue, and to which evidence is to be directed.
1 Greenl. Ev. § 13.
FACTUM PROBANS. A probative or evidentiary
fact; a subsidiary or connected fact tending to
prove the principal fact in issue; a piece of cir-
cumstantial evidence.
FACTUM UNIUS ALTERI NOCERI NON DEBET.
Co. Litt. 152. The deed of one should not hurt an-
other.
FACULTAS PROBATIONUM NON EST ANGUS-
TANDA. The power of proofs [right of offering
or giving testimony] is not to be narrowed. 4
Inst. 279.
FACULTATIVE COMPENSATION is that which
operates by the will of the parties, when one of
them removes an obstacle preventing compensa-
tion, resulting from the dispositions of the law.
In re Interstate Trust & Banking Co., La.App.,
194 So. 35, 40, 42.
FACULTATIVE REINSURANCE. Under type
designated "facultative", the reinsurer has the op-
tion of accepting the tendered part of the original
insurer's risk. Lincoln Nat. Life Ins. Co. v. State
Tax Commission, 196 Miss. 82, 16 So.2d 369.
FACULTIES. In the law of divorce. The capa-
bility of the husband to render a support to the
wife in the form of alimony, whether temporary
or permanent, including not only his tangible
property, but also his income and his ability to
earn money. 2 Bish. Mar. & Div. § 446; Lovett v.
Lovett, 11 Ala. 763; Wright v. Wright, 3 Tex. 168;
Fowler v. Fowler, 61 Okl. 280, 161 P. 227, 230, L.
R.A.1917C, 89. See Allegation of Faculties.
FACULTIES, COURT OF. In English ecclesias-
tical law. A jurisdiction or tribunal belonging to
the archbishop.
It does not hold pleas in any suits, but creates rights to
pews, monuments, and particular places, and modes of
burial. It has also various powers under 25 Hen. VIII. c.
21, in granting licenses of different descriptions, as a license
to marry, a faculty to erect an organ in a parish church,
to level a church-yard, to remove bodies previously buried.
4 Inst. 337.
FACULTIES, MASTER OF THE. An official in
the archdiocese of Canterbury who granted dis-
pensations. 4 Inst. 337. See Arches Court.
FACULTY.
Ecclesiastical Law. A license or authority; a
privilege granted by the ordinary to a man by
favor and indulgence to do that which by law he
may not do; e. g., to marry without banns, to
erect a monument in a church, etc. Termes de la
Ley.
Faculties are of two kinds : first, when the grant is to a
man and his heirs in gross; second, when it is to a person
and his heirs as appurtenant to a house which he holds in
the parish; 1 Term 429, 432; 12 Co. 106.
Scotch Law. A power founded on consent, as dis-
tinguished from a power founded on property.
2 Karnes, Eq. 265.
FACULTY OF A COLLEGE OR UNIVERSITY.
The corps of professors, instructors, tutors, and
lecturers. To be distinguished from the board of
trustees, who constitute the corporation.
The teaching body. West v. Board of Trustees
of Miami University and Miami Normal School,
41 Ohio App. 367, 181 N.E. 144, 150.
FACULTY OF ADVOCATES. The college or so-
ciety of advocates in Scotland.
FADE THE GAME. Means that spectators of a
game of "craps" bet on the success of actual par-
ticipants. Sullivan v. State, 146 Tex.Cr.R. 79, 171
S.W.2d 353.
FADERFIUM. In old English law. A marriage
gift coming from the father or brother of the
bride. Spelman.
FZEDER-FEOH. In old English law. The por-
tion brought by a wife to her husband, and which
reverted to a widow, in case the heir of her de-
ceased husband refused his consent to her second
marriage; i. e., it reverted to her family in case
she returned to them. Wharton.
FIESTING-MEN. Approved men who were
strong-armed; habentes homines or rich men, men
of substance; pledges or bondsmen, who, by Sax-
on custom, were bound to answer for each other's
good behavior. Cowell; Du Cange.
FAGGOT. A badge worn in popish times by per-
sons who had recanted and abjured what was then
adjudged to be heresy, as an emblem of what they
had merited. Cowell.
FAGGOT VOTE. A term applied to votes manu-
factured by nominally transferring land to per-
sons otherwise disqualified from voting for mem-
bers of parliament.
A faggot vote occurs where a man is formally possessed
of a right to vote for members of parliament, without pos-
sessing the substance which the vote should represent; as
if he is enabled to buy a property, and at the same moment
mortgage it to its full value, for the mere sake of the vote.
See 7 & 8 Wm. III. c. 25, § 7. Wharton.
FAIDA. In Saxon law. Malice; open and dead-
ly hostility; deadly feud.
The word designated the enmity between the family of a
murdered man and that of his murderer, which was recog-
nized, among the Teutonic peoples, as justification for
vengeance taken by any one of the former upon any one
of the latter. Du Cange; Spelman.
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FAILURE OF CONSIDERATION
FAIL. Fault, negligence, or refusal. Walker v.
Sheffield Steel Corporation, 224 Mo.App. 849, 27
S.W.2d 44, 48; Anderson v. Commercial Credit
Co., 110 Mont. 333, 101 P.2d 367, 369.
It also means:
Involuntarily to fall short of success or the attainment of
one's purpose. See Cobb v. Morrison, 197 Ala. 550, 73 So.
42; Pennsylvania Co. v. Good, 56 Ind.App. 562, 103 N.E.
672, 673; lapse, Gredig v. Sterling, C.C.A.Tex., 47 F.2d 832,
834; Wilmington Trust Co. v. Wilmington Trust Co., 25
Del.Ch. 204, 15 A.2d 830, 834; to become insolvent and
unable to meet one's obligations as they mature. Davis v.
Campbell, 3 Stew., Ala., 321; Mayer v. Hermann, 16 Fed.
Cas. 1,242; to come short of ; lack; to prove ineffective or
inoperative; to become or be found deficient or wanting,
In re Merritt's Will, 14 N.Y.S.2d 103, 107, 171 Misc. 812; to
decline, Buffalo County v. Phelps County, 129 Neb. 268, 261
N.W. 360; to keep or cease from an appointed, proper,
expected, or required action, Romero v. Department of
Public Works, 17 Ca1.2d 189, 109 P.2d 662, 665; to lapse, as
a legacy which has never vested or taken effect, Sherman
v. Richmond Hose Co., No. 2, 230 N.Y. 462, 130 N.E. 613;
to leave unperformed; to omit; to neglect; to be wanting
in action, Buffalo County v. Phelps County, 129 Neb. 268,
261 N.W. 360; A. Widemann Co. v. Digges, 21 Cal.App.
342, 131 P. 882, 883; Ginnochio v. Hydraulic Press Brick
Co., D.C.Ohio, 266 F. 564, 569.
The difference between "fail" and "refuse" is that the
latter involves an act of the will, while the former may be
an act of inevitable necessity. Taylor v. Mason, 9 Wheat.
344, 6 L.Ed. 101. See Stallings v. Thomas, 55 Ark. 326, 18
S.W. 184; Persons v. Hight, 4 Ga. 497; Maestas v. Ameri-
can Metal Co. of New Mexico, 37 N.M. 203, 20 P.2d 924,
928.
The words "fail to comply," however, have in general
the same operation in law as the words "refuse to com-
ply." Ginnochio v. Hydraulic Press Brick Co., D.C.Ohio,
266 F. 564, 569. And an allegation in an indictment that
defendant "failed and refused" to comply with a statute
should not be expanded to carry the implication that there
was a deliberate, intentional, and inexcusable refusal, es-
pecially where the indictment is not good without such ex-
pansion. Mackey v. U. S., C.C.A.Tenn., 290 F. 18, 21.
The term may imply an inopportunity to act. Worthing-
ton Pump & Machinery Corporation v. City of Cudahy, 182
Wis. 8, 195 N.W. 717.
FAILING CIRCUMSTANCES. Insolvency, that
is, the lack of sufficient assets to pay one's debts.
Brown v. State, 71 Tex.Cr.R. 353, 162 S.W. 339, 346.
A person (or a corporation or institution) is said
to be in failing circumstances when he is about
to fail, that is, when he is actually insolvent and
is acting in contemplation of giving up his busi-
ness because he is unable to carry it on. Appeal
of Millard, 62 Conn. 184, 25 A. 658; Utley v. Smith,
24 Conn. 310, 63 Am.Dec. 163.
A bank is in "failing circumstances" when, from any
cause, it is unable to pay its debts in the ordinary or
usual course of business, Sanders v. Owens, Mo.App., 47
S.W.2d 132, 134; when in state of uncertainty as to
whether it will be able to sustain itself, depending on
favorable or unfavorable contingencies, over which its
officers have no control. Graf v. Allen, 230 Mo.App. 721, 74
S.W.2d 61, 66.
FAILING OF RECORD. When an action is
brought against a person who alleges in his plea
matter of record in bar of the action, and avers to
prove it by the record, but the plaintiff saith nul
tiel record, viz., denies there is any such record,
upon which the defendant has a day given him
by the court to bring it in, if he fail to do it,
then he is said to fail of his record, and the plain-
tiff is entitled to sign judgment. Termes de la
Ley.
FAILLITE. In French law. Bankruptcy; fail-
ure; the situation of a debtor who finds himself
unable to fulfill his engagements. Code de Com.
arts. 442, 580; Civil Code La. art. 3556, No. 11; 3
Masse, Droit Comm. 171; Guyot, R6pert.
FAILS TO ATTEND AT THE TRIAL. Must be
such a prolonged absence and failure to attend as
to hinder and delay the orderly business of the
court. Smith v. State, 42 Okl.Cr. 308, 275 P. 1071,
1072.
FAILURE. Abandonment or defeat, State v.
Summers, 320 Mo. 189, 6 S.W.2d 883, 885. De-
ficiency, want, or lack; ineffectualness; ineffici-
ency as measured by some legal standard; an un-
successful attempt. State v. Butler, 81 Minn. 103,
83 N.W. 483; In re Moore, 79 Ind.App. 470, 138
N.E. 783. Lapse. Wilmington Trust Co. v. Wil-
mington Trust Co., 25 Del.Ch. 204, 15 A.2d 830,
834. See, also, Fail.
As used in municipal charter concerning "failure" to fill
certain office by certain methods, the term presupposes
efforts that had proved fruitless, and demands a bona fide
and seasonable attempt to select by such methods. Scott v.
Suitor, 103 Vt. 175, 152 A. 801, 802.
Discontinuance of business from insolvency, bankruptcy,
or the like. State v. Thompson, 333 Mo. 1069, 64 S.W.2d
277.
"Failure" of appeal tax court to reduce assessment giv-
ing right of appeal means failure to reduce after applica-
tion by owner asking that assessment be reduced. Aejis
Co. v. Ray, 156 Md. 590, 144 A. 842, 844.
Insolvency. Goess v. A. D. H. Holding Corporation,
C.C.A.N.Y., 85 F.2d 72, 74.
"Failure" is not always synonymous with "insolvency."
State v. Tunnicliffe, 98 Fla. 731, 124 So. 279, 281.
Suspension or abandonment of business by a merchant,
manufacturer, bank, etc., in consequence of insolvency,
American Credit Indemnity Co. v. Carrolton Furniture Mfg.
Co., C.C.A.N.Y., 95 F. 115, 36 C.C.A. 671; Terry v. Calman,
13 S.C. 220; State v. Lewis, 42 La.Ann. 847, 8 So. 602.
The failure to note action for trial is a "neglect" or "fail-
ure" within practice rule relating to dismissal of action
without prejudice for want of prosecution. State ex rel.
Woodworth & Cornell v. Superior Court for King County, 9
Wash.2d 37, 113 P.2d 527, 530.
The neglect of any duty may be a "failure." See Christ-
hilf v. City of Baltimore, 152 Md. 204, 136 A. 527, 528;
Washington v. State, 22 Okl.Cr. 69, 209 P. 967, 968. Com-
pare, however, In re Green, 192 Cal. 714, 221 P. 903, 905.
But to constitute a statutory offense, such as the failure
to work on public roads, the term may imply willfulness
and the absence of sufficient excuse. Jones v. State, 7 Ala.
App. 180, 62 So. 306, 307.
FAILURE OF CONSIDERATION. As applied to
notes, contracts, conveyances, etc., this term
does not mean a want of consideration, but implies
that a consideration, originally existing and good,
has since become worthless or has ceased to exist
or been extinguished, partially or entirely. Shirk
v. Neible, 156 Ind. 66, 59 N.E. 281, 83 Am.St.Rep.
150; Williamson v. Cline, 40 W.Va. 194, 20 S.E.
920.
It means that sufficient consideration was contemplated
by the parties at time contract was entered into, but either
on account of some innate defect in the thing to be given or
nonperformance in whole or in part of that which the
promisee agreed to do or forbear nothing of value can be
or is received by the promisee. Holcomb v. Long Beach
Inv. Co., 129 Cal.App. 285, 19 P.2d 31, 36.
It occurs where the thing expected to be received by one
party and given by the other party cannot be or has not
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FAILURE OF CONSIDERATION
been given without fault of the party contracting to give it.
Edmund D. Cook, Inc. v. Commercial Casualty Ins. Co., 15
N.J.Misc. 256, 190 A. 99, 101.
"Fraud" cannot be pleaded as defense to note on ground
that it amounts to "failure of consideration." Fraud is in.
Its essence a tort, while "failure of consideration" ordi-
narily involves no actionable wrong, but occurs by reason
of accident or mistake. Kothmann v. Southwest Co., Tex.
Civ.App., 92 S.W.2d 272, 276.
Want of consideration as synonymous or distinguishable
"Failure of consideration" is in fact simply a want of
consideration. Farrell v. Third Nat. Bank, 20 Tenn.App.
540, 101 S.W.2d 158, 163.
"Want of consideration" embraces transactions or
instances where no consideration was intended to pass
while "failure of consideration" implies that a valuable
consideration moving from obligee to obligor was con-
templated. In re Conrad's Estate, 333 Pa. 561, 3 A.2d 697,
699; Rauschenbach v. McDaniel's Estate, 122 W.Va. 632,
11 S.E.2d 852, 854.
There is "want of consideration" when nothing of value
has ever been received, and "failure of consideration"
where something of value was originally received which
has since lost its value. Columbia Restaurant v. Sadnovick,
La.App., 157 So. 280, 282.
FAILURE OF EVIDENCE. Judicially speaking,
a total "failure of evidence" means not only the
utter absence of all evidence, but it also means a
failure to offer proof, either positive or inferen-
tial, to establish one or more of the many facts,
the establishment of all of which is indispensable
to the finding of the issue for the plaintiff. Cole
v. Hebb, 7 Gill & J., Md., 28.
FAILURE OF GOOD BEHAVIOR. Enumerated
in statute as ground for removal of a civil service
employee means behavior contrary to recognized
standards of propriety and morality, misconduct
or wrong conduct. State ex rel. Ashbaugh v.
Bahr, 68 Ohio App. 308, 40 N.E.2d 677, 680, 682.
FAILURE OF ISSUE. The failure at a fixed time,
or the total extinction, of issue to take an estate
limited over by an executory devise. A definite
failure of issue is when a precise time is fixed by
the will for the failure of issue, as in the case
where there is a devise to one, but if he dies with-
out issue or lawful issue living at the time of his
death, etc. An indefinite failure of issue is the
period when the issue or descendants of the first
taker shall become extinct, and when there is no
longer any issue of the issue of the grantee, with-
out reference to any particular time or any par-
ticular event. 4 Kent, Comm. 275; Huxford v.
Milligan, 50 Ind. 546; Parkhurst v. Harrower, 142
Pa. 432, 21 A. 826, 24 Am.St.Rep. 507; Woodlief
v. Duckwall, 19 Ohio Cir.Ct.R. 564.
FAILURE OF JUSTICE. The defeat of a partic-
ular right, or the failure of reparation for a par-
ticular wrong, from the lack or inadequacy of a
legal remedy for the enforcement of the one or
the redress of the other. The term is also collo-
quially applied to the miscarriage of justice which
occurs when the result of a trial is so palpably
wrong as to shock the moral sense.
FAILURE OF PROOF. In this phrase, the word
"failure" is of broader significance than either
"want" or "lack." State v. Davis, 154 La. 295, 97
So. 449, 456.
A "failure of proof"' consists in failure to prove the
cause of action or defense in its entire scope and mean-
ing. Breslin-Grifiltt Carpet Co. v. Asadorian, Mo.App., 145
S.W.2d 494, 496.
An omission of a material fact from special finding is
deemed a "failure of proof". Kelley, Glover & Vale v.
Heitman, 220 Ind. 625, 44 N.E.2d 981, 984.
As used in a statute authorizing dismissal of suit with-
out prejudice on account of failure of proof, the term does
not mean failure to convince the court by preponderance
of evidence, but failure to make prima facie case. Crim v.
Thompson, 112 Or. 399, 229 P. 916, 920; Wolke v. Schmidt,
112 Or. 99, 228 P. 921, 923.
Under a statute pertaining to variance, a "failure of
proof" results when the evidence offered so far departs
from the cause of action pleaded that it may be said fairly
that the allegations of the pleading in their general scope
and meaning are unproved. Chealey v. Purdy, 54 Mont.
489, 171 P. 926, 927; Nelson v. Dowgiallo, 73 Or. 342, 143
P. 924, 925.
Where evidence is such as would support either of two
contradictory inferences, or presumptions, respecting the
ultimate facts, there is a "failure of proof". Muesenfechter
v. St. Louis Car Co., Mo.App., 139 S.W.2d 1102, 1106.
Where time is not of essence of offense, showing that
crime, which information alleged was committed "on or
about" certain day, was committed on next day, was not a
failure of proof, even had words "on or about" been omit-
ted. State v. Woodall, Mo., 300 S.W. 712, 713.
FAILURE OF RECORD. Failure of the defend-
ant to produce a record which he has alleged and
relied on in his plea.
See Failing of Record.
FAILURE OF TITLE. The inability or failure of
a vendor to make good title to the whole or a part
of the property which he has contracted to sell.
See Alger-Sullivan Lumber Co. v. Union Trust
Co., 207 Ala. 138, 92 So. 254, 257.
FAILURE OF TRUST. The lapsing or noneffici-
ency of a proposed trust, by reason of the defect
or insufficiency of the deed or instrument creat-
ing it, or on account of illegality, indefiniteness,
or other legal impediment.
FAILURE OTHERWISE THAN UPON MERITS.
Imports some action by court by which plaintiff is
defeated without a trial upon the merits. Kim-
berlin v. Stoley, 49 Ohio App. 1, 194 N.E. 885.
FAILURE TO ACT. Under statute setting up
system of classification of offices and giving in-
cumbent right to an administrative appeal in case
of any failure to act by officers in charge of the
classification plan, the words "failure to act" re-
ferred to duties in connection with classification
of offices. Dolan v. Suffolk County, 310 Mass.
318, 37 N.E.2d 998, 1000.
FAILURE TO BARGAIN COLLECTIVELY. An
employer's refusal to discuss with union, as em-
ployees' bargaining agency, questions involving
conditions of employment and interpretation of
contract constituted a "failure to bargain collec-
tively" with union. Rapid Roller Co. v. National
Labor Relations Board, C.C.A.7, 126 F.2d 452, 459.
FAILURE TO COOPERATE. Material or inten-
tional, or fraudulent variations of statements, of
assured's driver as given at trial and before trial
would constitute failure to co-operate with auto-
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FAIR AND FEASIBLE
mobile insurance company. Brooks Transp. Co.
v. Merchants' Mut. Casualty Co., 6 W.W.Harr. 40,
171 A. 207.
FAILURE TO LOOK. A failure to see an object
within range of vision is equivalent. Brooks v.
City of Ste. Genevieve, Mo.App., 164 S.W.2d 164,
168.
FAILURE TO MAKE DELIVERY. Misdelivery
is "failure to make delivery". Coos Bay Amuse-
ment Co. v. American Ry. Express Co., 129 Or.
216, 277 P. 107, 109. Nondelivery is "failure to
make delivery". Mt. Arbor Nurseries v. American
Ry. Express Co., 221 Mo.App. 241, 300 S.W. 1051,
1053. This phrase is fully adequate to cover all
cases where delivery has not been made as re-
quired. Kahn v. American Railway Express Co.,
88 W.Va. 17, 106 S.E. 126, 128; Watts v. Southern
Ry. Co., 139 S.C. 516, 138 S.E. 290, 293; Georgia,
F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190,
36 S.Ct. 541, 543, 60 L.Ed. 948.
FAILURE TO MEET OBLIGATIONS. Bank's
failure to pay depositors on demand constitutes
"failure to meet obligations" in most cases. State
of Ohio ex rel. Squire v. Union Trust Co. of Pitts-
burgh, 137 Pa.Super. 75, 8 A.2d 476, 480.
Where bank closed its doors and ceased to transact busi-
ness or make transfers of capital stock, and thereafter
ordinary deposits could not be drawn out and checks in
process of collection were dishonored, returned unpaid, was
"failure to meet obligations". State of Ohio ex rel. Squire
v. Union Trust Co. of Pittsburgh, 137 Pa.Super. 75, 8 A.2d
476, 480.
FAILURE TO PERFORM. As regards recipro-
cal promises, allegation of defendant's "failure to
perform" when demanded is equivalent to allega-
tion of "refusal to perform," unless performance
by plaintiff is condition precedent to cause of ac-
tion. Brooks v. Scoville, 81 Utah 163, 17 P.2d 218,
220.
FAILURES IN REVENUE. Terms "casual de-
ficits" and "failures in revenue," within provision
authorizing Legislature to contract debt to meet
such deficits, are synonymous. State Budget
Commission v. Lebus, 244 Ky. 700, 51 S.W.2d 965.
FAINT (or FEIGNED) ACTION. In old English.
practice. An action was so called where the par-
ty bringing it had no title to recover, although the
words of the writ were true; a false action was
properly where the words of the writ were false.
Litt. § 689; Co. Litt. 361.
FAINT PLEADER. A fraudulent, false, or col-
lusive manner of pleading to the deception of a
third person.
FAIR, n. In English law. A greater species of
market; a privileged market. Cowell; Cunning-
ham, Law Dict. It is an incorporeal hereditament,
granted by royal patent, or established by pre-
scription presupposing a grant from the crown.
A public mart or place of buying or selling. 1
Bla.Comm. 274.
Though etymologically signifying a market for buying
and selling exhibited articles, it includes a place for the
exhibition of agricultural and mechanical products. State
v. Long, 46 Ohio St. 509, 28 N.E. 1038.
A fair is usually attended by a greater concourse of peo-
ple than a market, for the amusement of whom various
exhibitions are gotten up. McCulloch, Comm.Dict.; Whar-
ton, Dict.
A fair is a franchise which is obtained by a grant from
the crown. 2d Inst. 220; 3 Mod. 123; 1 Ld.Raym. 341; 2
Saund. 172; 1 Rolle, Abr. 106; Tomlin; Cunningham, Law
Dict.
In the earlier English law, the franchise to hold a fair
conferred certain important privileges; and fairs, as
legally recognized institutions, possessed distinctive legal
characteristics. Most of these privileges and character-
istics, however, are now obsolete. In America, fairs, in the
ancient technical sense, are unknown, and, in the modern
and popular sense, they are entirely voluntary and non-
legal, and transactions arising in or in connection with
them are subject to the ordinary rules governing sales, etc.
FAIR, adj. Equitable as a basis for exchange;
reasonable; a fair value. Utah Assets Corpora-
tion v. Dooley Bros. Ass'n, 92 Utah 577, 70 P.2d
738, 741. Honest. East Bay Municipal Utility
Dist. v. Kieffer, 99 Cal.App. 240, 278 P. 476, 482.
Impartial, free from suspicion, bias, etc. Looney
v. Elliott, Tex.Civ.App., 52 S.W.2d 949, 952. Just;
equitable; even-handed; equal, as between con-
flicting interests.
FAIR ABRIDGMENT. In copyright law. An
abridgment consisting not merely in the arrange-
ment of excerpts, but one involving real and sub-
stantial condensation of the materials by the exer-
cise of intellectual labor and judgment. Folsom
v. Marsh, 9 Fed.Cas. 345.
FAIR AND EQUITABLE. A proposed plan to
dissolve parent public utility holding company
and to reclassify its preferred and voting common
stock is "fair and equitable", if preferred stock-
holders' rights are transmuted into their equita-
ble equivalents. In re Securities and Exchange
Commission, C.C.A.Del., 142 F.2d 411, 419.
As condition of confirmation under provisions of Bank-
ruptcy Act relating to corporate reorganization, signify
that the final arrangement must conform to principle that
unsecured creditors are entitled to priority over stockhold-
ers to full extent of their debts and that any scaling down
of claims of creditors without fair compensating advantage
to them which is prior to rights of stockholders is inadmis-
sible. Securities and Exchange Commission v. United
States Realty & Improvement Co., 310 U.S. 434, 60 S.Ct.
1044, 1051, 84 L.Ed. 1293; In re Janson Steel & Iron Co.,
D.C.Pa., 47 F.Supp. 652, 655, 656.
Statutory requirements of "fair and equitable" railroad
reorganization are satisfied so long as creditors receive full
compensatory treatment and each group shares in securities
of the whole enterprise on an equitable basis. Ecker v.
Western Pac. R. R. Corporation, 318 U.S. 448, 63 S.Ct. 692,
713, 87 L.Ed. 892.
FAIR AND EQUITABLE VALUE. In a contract
to purchase a waterworks plant at fair and equita-
ble value, the amount is to be determined not by
capitalization of the earnings nor limited to the
cost of reproducing the plant, but allowance
should be made for the additional value created
by connection with and supply of buildings, al-
though the company did not own the connections.
National Waterworks Co. V. Kansas City, Mo.,
62 F. 863.
FAIR AND FEASIBLE. As test in determining
whether corporate reorganization plan should be
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FAIR AND FULL
approved means economically expedient, without
discrimination or destruction of vested rights. In
re Stanley Drug Co., D.C.Pa., 22 F.Supp. 664, 665.
FAIR AND FULL EQUIVALENT FOR LOSS.
The same as a full and perfect equivalent. Fon-
ticello Mineral Springs Co. v. City of Richmond,
147 Va. 355, 137 S.E. 458, 460.
FAIR AND IMPARTIAL JURY means that every
member of the jury must be a fair and impartial
juror. City of San Antonio v. McKenzie Const.
Co., 136 Tex. 315, 150 S.W.2d 989, 993.
FAIR AND IMPARTIAL SYSTEM OF SEPARA-
TION FROM SERVICE. Of employees of depart-
ment of state involves specific reasons for removal
and reasonable hearing before some designated
and proper authority. Welch v. State Board of
Social Security and Welfare, 53 Ariz. 167, 87 P.2d
109, 112.
FAIR AND IMPARTIAL TRIAL. One where ac-
cused's legal rights are safeguarded and respected.
Floyd v. State, 166 Miss. 15, 148 So. 226, 232;
Raney v. Commonwealth, 287 Ky. 492, 153 S.W.
2d 935, 937, 938.
A fair and impartial trial by a jury of one's peers con-
templates counsel to look after one's defense, compulsory
attendance of witnesses, if need be, and a reasonable time
in the light of all prevailing circumstances to investigate,
properly prepare, and present the defense. Christie v.
State, 94 Fla. 469, 114 So. 450, 451.
One wherein defendant is permitted to be represented by
counsel and neither witnesses nor counsel are intimidated.
George v. Kanape, 284 Ill.App. 648, 3 N.E.2d 149. One
wherein no undue advantage is taken by the district attor-
ney or any one else. People v. Nationwide News Service,
16 N.Y.S.2d 277, 279, 172 Misc. 752. One wherein witnesses
of litigants are permitted to testify under rules of court
within proper bounds of judicial discretion, and under law
governing testimony of witnesses with right in parties to
testify, if qualified, and of counsel to be heard. Fessenden
v. Fessenden, 32 Ohio App. 16, 165 N.E. 746, 748.
Defendant has a "fair and impartial trial" when oppor-
tunity is given him to object and except to what is done
to his prejudice upon the trial. State v. Burns, 181 Iowa
1098, 165 N.W. 346, 347.
Such a trial contemplates a trial before a jury of 12
impartial and unbiased men, neither more nor less, in the
presence and under the superintendence of a judge having
the power to instruct them as to the law and advise them
in respect to the facts, and the establishment of guilt by a
unanimous verdict of such jury. Baker v. Hudspeth, C.C.A.
Kan., 129 F.2d 779, 782, 783. It contemplates counsel,
compulsory attendance of witnesses, and time in which to
prepare for trial. Wood v. State, 155 Fla. 256, 19 So.2d 872,
875. It excludes jurors who have an opinion on the merits
of the case, based on such testimony as may reasonably
be expected to be presented on the trial, or an opinion
founded on personal ill will towards the accused. Murphy
v. State, 72 Okl.Cr. 1, 112 P.2d 438, 453, 454. It includes a
reasonable opportunity to prepare for trial. Cruthirds v.
State, 190 Miss. 892, 2 So.2d 145, 146.
It requires that the jury of 12 men chosen to sit in judg-
ment shall have no fixed opinion concerning the guilt or
innocence of one on trial. Baker v. Hudspeth, C.C.A.Kan.,
129 F.2d 779, 782, 783. There must not only be fair and
impartial jury, and learned and upright judge, but there
should be atmosphere of calm in which witnesses can
deliver their testimony without fear and intimidation, in
which attorneys can assert accused's rights freely and
fully, and in which the truth may be received and given
credence without fear of violence. Raney v. Common-
wealth, 287 Ky. 492, 153 S.W.2d 935, 937, 938.
FAIR AND PROPER LEGAL ASSESSMENT.
Such as places the value of property on a fair,
• equal, and uniform basis with other property of
like character and value throughout the county
and state. Edward Hines Yellow Pine Trustees v.
Knox, 144 Miss. 560, 108 So. 907, 911.
FAIR AND REASONABLE COMPENSATION.
Full compensation. Pfeiffer v. Schee, Mo.App.,
107 S.W.2d 170, 175.
FAIR AND REASONABLE CONTRACT. One
which, when made with an infant, must not be
one wasting the infant's estate, but must be a
provident one, advantageous to the minor. Berg-
lund v. American Multigraph Sales Co., 135 Minn.
67, 160 N.W. 191, 193.
FAIR AND REASONABLE MARKET VALUE.
Under statute requiring determination of fair
and reasonable market value of mortgaged prem-
ises in connection with deficiency judgment,
means market value and should be determined by
those market conditions prevailing where willing
buyers meet willing sellers and deal on that basis.
Berkshire Life Ins. Co. of Pittsfield, Mass. v. Van
Voorhis, 245 App.Div, 592, 283 N,Y.S. 95, 97, 98.
FAIR AND REASONABLE TOLLS. The term is
broad enough to include such fair and reasonable
charges as may be deemed "fair and reasonable"
for value of privilege the toll payer obtains for
his money in use of bridge. In re Tolls on St.
Johns River Bridge, 108 Fla. 172, 146 So. 99, 100.
FAIR AND REASONABLE VALUE. This
phrase in a statute imposing a tax on property
means the best price obtainable at a voluntary
sale, to be paid at once in money, and excluding
any additional amount that might be had were
credit or terms allowed. State v. Woodward, 208
Ala. 31, 93 So. 826.
Provision of statute for appraisal of farm debtor's prop-
erty at "fair and reasonable value, not necessarily market
value," for purpose of discharging debtor from his obliga-
tions, means that market value is minimum value to be
found, beyond which other circumstances may be con-
sidered to arrive at "fair and reasonable value". Louis-
ville Joint Stock Land Bank v. Radford, C.C.A.Ky., 74 F.2d
576, 582.
FAIR AND VALUABLE CONSIDERATION.
One which is a substantial compensation for the
property conveyed, or which is reasonable, in
view of the surrounding circumstances and condi-
tions, in contradistinction to an adequate consid-
eration. Jones v. Wey, 124 Okl. 1, 253 P. 291, 292;
Lucas v. Coker, 189 Okl. 95, 113 P.2d 589, 590.
FAIR CASH MARKET VALUE. Terms "cash
market value", "fair market value", "reasonable
market value" or "fair cash market value" are
substantially synonymous. Housing Authority of
Birmingham Dist. v. Title Guarantee Loan &
Trust Co., 243 Ala. 157, 8 So.2d 835, 837. Terms
"market value," "fair market value," "cash mark-
et value," and "fair cash market value" are syn-
onymous. Fort Worth & D. N. Ry. Co. v. Sugg,
Tex.Civ.App., 68 S.W.2d 570, 572.
FAIR CASH VALUE. The phrase is practically
synonymous with "reasonable value," and "ac-
tual cash value," meaning the fair or reasonable
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FAIR EQUIVALENT
cash price for which the property can be sold
on the market. Montesano Lumber & Mfg. Co. v.
Portland Iron Works, 94 Or. 677, 186 P. 428, 432;
State v. Woodward, 208 Ala. 31, 93 So. 826, 827.
The words "fair cash value" and the words "fair market
value" are frequently treated as synonymous. Commis-
sioner of Corporations and Taxation v. Boston Edison Co.,
310 Mass. 674, 39 N.E.2d 584, 593.
"Fair cash value" of dissenting stockholder's stock is the
intrinsic worth of the stock and not necessarily its market
price. Miller v. Canton Motor Coach, 58 Ohio App. 94, 16
N.E.2d 486, 488; Adams v. U. S. Distributing Corp., 184 Va.
134, 34 S.E.2d 244, 250, 162 A.L.R. 1227.
For tax purposes "fair cash value", means the
highest price the property would bring free of
incumbrances, at a fair and voluntary private
sale for cash. Commonwealth v. Sutcliffe, 287
Ky. 809, 155 S.W.2d 243, 245. The price that an
owner willing but not compelled to sell ought
to receive from one willing but not compelled to
buy. Assessors of Quincy v. Boston Consolidated
Gas Co., 309 Mass. 60, '34 N.E.2d 623, 626. The
price, that the property would bring at a voluntary
sale where the owner is ready, willing and able
to sell but not compelled to do so. In re 168
Adams Bldg. Corporation, C.C.A.I11., 105 F.2d 704,
708; People ex rel. McGaughey v. Wilson, 367
Ill. 494, 12 N.E.2d 5, 6; the price which some one
will pay for it in open market. Donovan v. City
of Haverhill, 141 N.E. 564, 565, 247 Mass. 69, 30
A.L.R. 358.
It is ascertained by a consideration of all elements mak-
ing it attractive for valuable use to one under no compul-
sion to purchase, but yet willing to buy for a fair price,
attributing to each element of value the amount it adds to
the price likely to be offered by such a buyer. Massachu-
setts General Hospital v. Inhabitants of Belmont, 233 Mass.
190, 124 N.E. 21, 26.
Taxable "fair cash value", of annuity contract was to be
determined according to mortality tables. Evans v. Boyle
County Board of Sup'rs, 296 Ky. 353, 177 S.W.2d 137, 139.
Under corporate franchise tax statute, the term "fair
cash value" meant exchange value, Commissioner of Corpo-
rations and Taxation v. Boston Edison Co., 310 Mass. 674,
39 N.E.2d 584, 592, 593.
FAIR COMMENT. A term used in the law of
libel, applying to statements made by a writer
in an honest belief of their truth, relating to of-
ficial acts, even though the statements are not
true in fact. People v. Hebbard, 96 Misc. 617, 162
N.Y.S. 80, 92. In a privileged communication the
words used, if defamatory and libelous, are ex-
cused, while in "fair comment" the words are not
a defamation and not libelous. Van Lonkhuyzen
v. Daily News Co., 203 Mich. 570, 170 N.W. 93, 99.
Defense of "fair comment" is not destroyed by circum-
stance that jury may believe that the comment is logically
unsound, but it suffices that a reasonable man may hon-
estly entertain such opinion, on facts found. Cohalan v.
New York Tribune, 172 Misc. 20, 15 N.Y.S.2d 58, 60, 61.
"Fair comment" must be based on facts truly stated,
must not contain imputations of corrupt or dishonorable
motives except as warranted by the facts, and must be
honest expression of writer's real opinion. Cohalan v. New
York World-Telegram Corporation, 16 N.Y.S.2d 706, 712,
172 Misc. 1061; Hall v. Binghamton Press Co., 33 N.Y.S.2d
840, 848, 263 App.Div. 403.
Imputation to official of corrupt or dishonorable motives
is justified as "fair comment" if it is inference which fair-
minded man might reasonably draw from facts. Tanzer v.
Crowley  Pub. Corporation, 240 App.Div. 203, 268 N.Y.S.
620.
Mere exaggeration, slight irony, or wit, or all those
delightful touches of style going to make article readable,
do not push beyond limitations of fair comment. Briarcliff
Lodge Hotel v. Westchester Newspapers, 260 N.Y. 106, 183
N.E. 193, 197.
FAIR COMPETITION. Open, equitable, Just
competition, which is fair as between competitors
and as between any of them and his customers.
U. S. v. Sutherland, D.C.Mo., 9 F.Supp. 204, 205;
U. S. v. National Garment Co., D.C.Mo., 10 F.
Supp. 104, 107. Opposite of "unfair competition."
Wilentz v. Crown Laundry Service, 116 N.J.Eq.
40, 172 A. 331, 333; State on Complaint of Lief v.
Packard-Bamberger & Co., 123 N.J.L. 180, 8 A.2d
291, 293.
The words "fair competition" in National Industrial
Recovery Act do not include price fixing, since price regu-
lation is the antithesis of competition, fair or otherwise.
Mississippi Valley Hardwood Co. v. McClanahan, D.C.
Tenn., 8 F.Supp. 388.
FAIR CONSIDERATION. A fair equivalent.
Farmers' Exchange Bank v. Oneida Motor Truck
Co., 202 Wis. 266, 232 N.W. 536, 538; Drury v.
State Capitol Bank of Eastern Shore Trust Co.,
163 Md. 84, 161 A. 176, 179. One which, under all
the circumstances, is honest, reasonable, and free
from suspicion, whether or not strictly "adequate"
or "full." Ferguson v. Dickson, C.C.A.N.J., 300
F. 961, 963. Payment of an antecedent debt. Mc-
Dougal v. Central Union Conference Ass'n of
Seventh Day Adventists, C.C.A.Colo., 110 F.2d
939, 942. Pre-existing debt. In re Seim Const.
Co., D.C.Md., 37 F.Supp. 855, 858. Reasonable in
contractual sense, and free from suspicion of in-
tent to evade inheritance tax, though not fraud-
ulent. Phillips v. Gnichtel, C.C.A.N.J., 27 F.2d 662,
665.
In bankrhptcy law, one which is honest or free from
suspicion, or one actually valuable, but not necessarily
adequate or a full equivalent. Myers v. Fultz, 124 Iowa,
437, 100 N.W. 351.
Under Fraudulent Conveyance Law. An antecedent debt,
Klaseus v. Meester, 173 Minn. 468, 217 N.W. 593, 594; Bar-
ishefsky v. Cohen, 299 Mass. 360, 12 N.E.2d 832, 833; Hol-
lander v. Gautier, 114 N.J.Eq. 485, 168 A. 860, 862; an
enforceable promise by grantee at time of transfer, Hol-
lander v. Gautier, 114 N.J.Eq. 485, 168 A. 860, 861; full and
adequate consideration, Klaseus v. Meester, 173 Minn. 468,
217 N.W. 593, 594; good-faith satisfaction of an antecedent
debt, Bennett v. Rodman & English,' D.C.N.Y., 2 F.Supp.
355, 358; one which fairly represents the value of the prop-
erty transferred, Bianco v. Lay, 313 Mass. 444, 48 N.E.2d
36, 40; one which is not disproportionate to the value of
the property conveyed. Buhl v. McDowell, 51 S.D. 603, 216
N.W. 346, 347; Klaseus v. Meester, 173 Minn. 468, 217 N.W.
593, 594; the test of "fair consideration", is whether con-
veyance, by debtor, which includes every payment of
money, renders the debtor execution proof. McCaslin v.
Schouten, 294 Mich. 180, 292 N.W. 696, 699.
FAIR DAMAGES are something more than nom-
inal damages; and are even more than such dam-
ages as would compensate for injury suffered.
Gurfein v. Howell, 142 Va. 197, 128 S.E. 644, 646.
FAIR EQUIVALENT. As used in statute provid-
ing that fair consideration is given for property
exchanged at fair equivalent means value at time
of conveyance; "equivalent" means equal in
worth or value; "fair" means equitable as a basis
for exchange; reasonable; a fair value. Utah
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FAIR EQUIVALENT
Assets Corporation v. Dooley Bros. Ass'n, 92 Utah
577, 70 P.2d 738, 741.
As used in Uniform Fraudulent Conveyance Law does not
mean that adequacy of consideration is to be determined by
weighing value of goods sold and price received in very
precise scales. Bianco v. Lay, 313 Mass. 444, 48 N.E.2d
36, 40.
The test to be used in determining what constitutes a
"fair equivalent" under Fraudulent Conveyance Act, for
conveyance by debtor, is whether the conveyance, which
includes every payment of money, renders the debtor execu-
tion proof. McCaslin v. Schouten, 294 Mich. 180, 292 N.W.
696, 699.
FAIR REARING. One in which authority is fair-
ly exercised; that is, consistently with the funda-
mental principles of justice embraced within the
conception of due process of law. U. S. ex rel.
Dean, for and on behalf of Mahfood, v. Reynolds,
D.C.Ind., 2 F.Supp. 290, 291.
A hearing before the immigration authorities is "fair"
if conducted with due regard to those rights of the alien
that are embraced in the phrase "due process of law".
United States ex rel. Eng Fon Sing v. Reimer, D.C.N.Y.,
30 F.Supp. 602, 604.
Although rules of evidence and of procedure have not
been strictly followed a hearing may be "fair." Ex parte
Bridges, D.C.Cal., 49 F.Supp. 292, 306; U. S. ex rel. Shaw
v. Van De Mark, D.C.N.Y., 3 F.Supp. 101, 102.
Fair hearing of an alien's right to enter the United
States means a hearing before the immigration officers in
accordance with the fundamental principles that inhere in
due process of law, and implies that alien shall not only
have a fair opportunity to present evidence in his favor,
but shall be apprised of the evidence against him, so that
at the conclusion of the hearing he may be in a position
to know all of the evidence on which the matter is to be de-
cided; it being not enough that the immigration officials
meant to be fair. Ex parte Petkos, D.C.Mass., 212 F. 275,
277. See, also, Ex parte Keisuki Sata, D.C.Cal., 215 F. 173,
176.
The obligation of a local draft board to grant a registrant
a "fair hearing" on matter of classification does not mean
a trial by court or a trial in strict or formal sense. Rase
v. United States, C.C.A.Mich., 129 F.2d 204, 210; Seele v.
U. S., C.C.A.Mo., 133 F.2d 1015, 1022.
The test of a "fair hearing" before the National Labor
Relations Board is whether the issues were clearly
defined, so that the employer could address itself to the
charges made against it. National Labor Relations Board
v. Air Associates, C.C.A.2, 121 F.2d 586, 591.
Where students were charged with sale of examination
papers and expelled, a "fair hearing" did not contemplate
a trial as in a chancery court or court of law. State ex
rel. Sherman v. Hyman, 180 Tenn. 99, 171 S.W.2d 822, 826.
FAIR KNOWLEDGE OR SKILL. A reasonable
degree of knowledge or Measure of skill. Jones
v. Angell, 95 Ind. 382.
FAIR MARKET PRICE means not only that the
price be ascertained by sales, but that the sales
so made and the subject-matter of the sales are
to be considered. In re Spitly's Estate, 124 Cal.
App. 642, 13 P.2d 385, 386.
For inheritance tax purposes, "clear market price" Is
synonymous with "fair market price." In re Spitly's Es-
tate, 124 Cal.App. 642, 13 P.2d 385, 386.
For tax purposes, means price fixed by manufacturer
for sale of its products where there is no market price oth-
er than price so fixed. Bourjois, Inc., v. McGowan, D.C.N.
Y., 12 F.Supp. 787, 792.
Within statute governing valuation of property for as-
sessment of income tax, resultant of two opposing views of
willing seller and willing buyer where seller is not com-
pelled to sell and buyer is not required to buy. Vale v.
du Pont, Del., 7 W.W.Harr. 254, 182 A. 668, 673, 674, 103 A.
L.R. 946.
Ordinarily, "actual cash value," "fair market price,"
and "market value" are synonymous terms. Butler v.
1Etna Ins. Co. of Hartford, Conn., 64 N.D. 764, 256 N.W.214.
FAIR MARKET VALUE. Price at which a will-
ing seller and a willing buyer will trade. Mont-
rose Cemetery Co. v. Commissioner of Internal
Revenue, C.C.A.7, 105 F.2d 238, 242; Utah Assets
Corporation v. Dooley Bros. Ass'n, 92 Utah 577,
70 P.2d 738, 741.
It has also been defined to mean : Amount that would in
all probability have been arrived at between owner willing
to sell and purchaser desiring to buy, Karlson v. U. S.,
C.C.A.Minn., 82 F.2d 330, 337; Whitlow v. Commissioner
of Internal Revenue, C.C.A.8, 82 F.2d 569, 572; exchange-
able value, Walls v. Commissioner of Internal Revenue, C.
C.A.Wyo., 60 F.2d 347, 350; price at which a willing seller
under no compulsion and a willing buyer under no compul-
sion will trade, Rheinstrom v. Willcuts, D.C.Minn., 26 F.
Supp. 306, 310; State ex rel. Farmers & Merchants State
Bank v. Schanke, 247 Wis. 182, 19 N.W.2d 264, 267; Talbot
v. City of Norfolk, 158 Va. 387, 163 S.E. 100, 101; price at
which specified quantity of a given economic good is ac-
tually sold, or general or future power in exchange,
Jenkins v. Smith, D.C.Conn., 21 F.Supp. 251, 253; price
such as a capable and diligent business man could present-
ly obtain from the property after conferring with those ac-
customed to buy such property, Appeal of Hickey, 124 Pa.
Super. 213, 188 A. 95, 96; price which a willing purchaser
would pay a willing seller, Ozette Ry. Co. v. Grays Harbor
County, 16 Wash.2d 459, 133 P.2d 983, 988; Baetjer v. Unit-
ed States, C.C.A.Puerto Rico, 143 F.2d 391, 396; price
which property would bring at a fair sale between parties
dealing on equal terms, Union Nat. Bank of Pittsburgh v.
Crump, 349 Pa. 339, 37 A.2d 733, 735; sum a purchaser
willing but not obliged to buy would pay an owner willing
but not obliged to sell, Appeal of Hickey, 124 Pa.Super. 213,
188 A. 95, 96; City of Tampa v. Colgan, 121 Fla. 218, 163
So. 577, 582; City of Tulsa v. Creekmore, 167 Okl. 298, 29
P.2d 101, 103; value in money as between one who wishes
to purchase and one who wishes to sell, Wood v. United
States, Ct.C1., 29 F.Supp. 853, 859, 860; Stiles v. Commis-
sioner of Internal Revenue, C.C.A.Fla., 69 F.2d 951, 952.
"Fair market value" assumes agreement be-
tween owner willing but not obliged to sell for
cash and buyer desirous but not compelled to
purchase. Lewis v. Beall, 162 Md. 18, 158 A. 354,
356. It implies not only a willing buyer, but a
willing seller.  Syracuse Engineering Co. v.
Haight, C.C.A.N.Y., 110 F.2d 468, 471. It means
neither panic value, auction value, speculative
value, nor a value fixed by depressed or inflated
prices. In re Board of Water Supply of City of
New York, 277 N.Y. 452, 14 N.E.2d 789, 792. It
resides in estimate and determination of what is
fair, economic, just and equitable value under
normal conditions. State ex rel. Buck v. Rapp,
Sup., 36 N.Y.S.2d 790, 794.
As of a certain date. Fair market value of a given dale
means amount stock is fairly worth as marketable security
Or equity to be bought and sold in course of business,
Robertson v. Routzahn, D.C.Ohio, 1 F.Supp. 355, 356; price
that could actually have been realized on that date, Jenkins
v. Smith, D.C.Conn., 21 F.Supp. 251; price that probably
would have resulted had goods been exchanged between
willing, informed, and normal buyer and similar seller,
Jenkins v. Smith, D.C.Conn., 21 F.Supp. 251; price that
property would bring at voluntary sale to willing buyer ;
both seller and buyer having adequate knowledge of ma-
terial facts affecting value, Robertson v. Routzahn, C.C.A.
Ohio, 75 F.2d 537, 539; price which intelligent and reason-
able buyers and sellers, having due regard for their mer-
cenary interests, would have most likely agreed upon. Vale
v. State School Tax Department, 6 W.W.Harr. 252, 173 A.
795.
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FAIR TRIAL
It resides in an estimate and a determination of what
is the fair, economic, Just, and equitable value under nor-
mal conditions. In re Board of Water Supply of City of
New York, 277 N.Y. 452, 14 N.E.2d 789, 792.
"Fair market value" of stock received by taxpayer in
payment of bonuses was value of stock received in extin-
guishment of bonus claims and not amount credited for
bonuses. Commissioner of Internal Revenue v. Vandeveer,
C.C.A.6, 114 F.2d 719, 722.
Primary evidence of "fair market value" of stock is
what willing purchasers pay to willing sellers on open
market. Hazeltine Corporation v. Commissioner of Inter-
nal Revenue, C.C.A.3, 89 F.2d 513, 518.
Synonymous or identical terms are :
Actual cash value. Stiles v. Commissioner of Internal
Revenue, C.C.A.Fla., 69 F.2d 951, 952; actual value, Ap-
peals of Matson, 152 Pa.Super. 424, 33 A.2d 464, 465; cash
market value, West Texas Hotel Co. v. City of El Paso,
Tex.Civ.App., 83 S.W.2d 772, 775; Housing Authority of
Birmingham Dist. v. Title Guarantee Loan & Trust Co.,
243 Ala. 157, 8 So.2d 835, 837; cash value, Thomison v.
Hillcrest Athletic Ass'n, 9 W.W.Harr. 590, 5 A.2d 236, 238;
In re Ryerson's Estate, 239 Wis. 120, 300 N.W. 782, 784,
785; clear market value, In re Ryerson's Estate, 239 Wis.
120, 300 N.W. 782, 784, 785; fair cash market value, Housing
Authority of Birmingham Dist. v. Title Guarantee Loan &
Trust Co., 243 Ala. 157, 8 So.2d 835, 837; fair cash value,
Commissioner of Corporations and Taxation v. Boston Edi-
son Co., 310 Mass. 674, 39 N.E.2d 584, 593; market value,
Fort Worth & D. N. Ry. Co. v. Sugg, Tex.Civ.App., 68 S.
W.2d 570, 572; United States v. 3969.59 Acres of Land, D.
C.Idaho, 56 F.Supp. 831, 837; reasonable market value,
Housing Authority of Birmingham Dist. v. Title Guarantee
Loan & Trust Co., 243 Ala. 157, 8 So.2d 835, 837; true cash
value, Appeals of Matson, 152 Pa.Super. 424, 33 A.2d 464,
465; value, United States v. 3969.59 Acres of Land, D.C.
Idaho, 56 F.Supp. 831, 837.
Value of i eal property for railroad purposes approxi-
mated by capitalizing net income considered with other
factors, may be accepted as indicative of "fair market val-
ue". Appeal of Pitney, 20 N.J.Misc. 448, 28 A.2d 660, 664.
FAIR ON ITS FACE. A tax deed "fair on its
face," is one which cannot be shown to be illegal
without extraneous evidence. Denny v. Stevens,
52 Wyo. 253, 73 P.2d 308, 310, 113 A.L.R. 1337.
A process fair on its face does not mean that it must
appear to be perfectly regular or in all respects in accord
with proper practice and after the most approved form, but
that it shall apparently be process lawfully issued and such
as the officer may lawfully serve, and a process is fair on
its face which proceeds from a court, magistrate, or body
having authority of law to issue process of that nature and
which is legal in form and on its face contains nothing to
notify or fairly apprise the officer that it is issued without
authority. Brown v. Hadwin, 182 Mich. 491, 148 N.W. 693,
L. R. A. 1915B, 505.
FAIR PERSUASION means argument, exhorta-
tion, or entreaty addressed to a person without
threat of physical harm or economic loss, or per-
sistent molestation or harassment or material
and fraudulent misrepresentations. City of Reno
v.. Second Judicial District Court in and for Wa-
shoe County, 59 Nev. 416, 95 P.2d 994, 998, 125
A.L.R. 948.
FAIR–PLAY MEN. A local irregular tribunal
which existed in Pennsylvania about the year
1769, as to which see Serg. Land Laws Pa. 77; 2
Smith, Laws Pa. 195.
FAIR PLEADER. See Beau-pleader.
FAIR PREPONDERANCE. In the law of evi-
dence. A "clear" preponderance. M. E. Smith
& Co. v. Kimble, 38 S.D. 511, 162 N.W. 162, 163.
Evidence sufficient to create in the minds of the
triers of fact the conviction that the party upon
whom is the burden has established its case.
Jackson Furniture Co. v. Lieberman, 65 R.1 224,
14 A.2d 27, 32. The greater and weightier evi-
dence, the more convincing evidence. Barbero
v. Pellegrino, 108 N.J.L. 156, 156 A. 765. The
greater weight of the evidence. Belmont Hotel v.
New Jersey Title Guaranty & Trust Co., 22 N.J.
Misc. 261, 37 A.2d 681, 682. Weight, credit, and
value. Chenery v. Russell, 132 Me. 130, 167 A.
857, 858.
If evidence on any material allegation is equally bal-
anced, verdict should be for defendant. Funk v. Bonham,
204 Ind. 170, 183 N.E. 312, 317.
Such a superiority of evidence on one side that the fact
of its outweighing the evidence on the other side can be
perceived if the whole evidence is fairly considered. Bryan
v. Railroad Co., 63 Iowa, 464, 19 N.W. 295; City Bank's
Appeal, 54 Conn. 274, 7 A. 548. Such evidence as when
weighed with that which is offered to oppose it, has more
convincing power in the minds of the jury. Neely V. De-
troit Sugar Co., 138 Mich. 469, 101 N.W. 665, 666.
The probability of truth; In re Oliver's Will, 126 Misc.
511, 214 N.Y.S. 154, 166; not necessarily the largest num-
ber of witnesses; Verdi v. Donahue, 91 Conn. 448, 99 A.
1041, 1043; Chenery v. Russell, 132 Me. 130, 167 A. 857, 858.
The term conveys the idea of something more than a pre-
ponderance. Bryan v. Chicago, R. I. & P. Ry. Co., 63
Iowa, 464, 19 N.W. 295, 296; De St. Aubin v. Marshall Field
& Co., 27 Colo. 414, 62 P. 199, 201; The term is not a
technical term, but simply means that evidence which out-
weighs that which is offered to oppose it, and does not
necessarily mean the greater number of witnesses. De-
vencenzi v. Cassinelli, 28 Nev. 222, 81 P. 41, 42 (quoting and
adopting definition in Strand v. Chicago & N. M. Ry. Co.,
67 Mich. 380, 34 N.W. 712) ; Hynes v. Metropolitan St.
Ry. Co., 31 Misc. 825, 64 N.Y.S. 382, 383,
FAIR PRICE. The words "fair price" have been
held to be of an ascertainable valuation. Mc-
Cormick v. Tissier, 222 Ala. 422, 133 So. 22, 24. For
"Fair Market Price," see that title.
FAIR RENT. A reasonable rent. Shapiro v.
Goldstein, 113 Misc. 258, 185 N.Y.S. 234,.
FAIR RETURN. A net return upon fair value
of property. State ex rel. City of St. Louis v.
Public Service Commission, 341 Mo. 920, 110 S.W.
2d 749, 778.
A "fair return" is to be largely measured by usual re-
turns in like investments in the same vicinity over the
same period of time. Natural Gas Pipeline Co. of America
v. Federal Power Commission, C.C.A.7, 120 F.2d 625, 633,
634.
FAIR RETURN ON INVESTMENT. A fair re-
turn on value of property used and useful in car-
rying on the enterprise, performing the service
or supplying the thing for which the rates are
paid. Lubin v. Finkelstein, 82 N.Y.S.2d 329, 335.
FAIR SALE. In foreclosure and other judicial
proceedings, this means a , sale conducted with
fairness and impartiality as respects the rights
and interests of the parties affected. Lalor v.
McCarthy, 24 Minn. 419. A sale at a price suffi-
cient to warrant confirmation or approval when it
is required.
FAIR TRIAL. A hearing by an impartial and
disinterested tribunal; a proceeding which hears
before it condemns, which proceeds upon inquiry,
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FAIR TRIAL •
and renders judgment only after trial. Johnson
v. City of Wildwood, 116 N.J.L. 462, 184 A. 616,
617.
A legal trial or one conducted in all material things in
substantial conformity to law. Stacey v. State, 79 Okl.Cr.
417, 155 P.2d 736, 739; A trial which insures substantial
justice, Capone v. Union County Park Commission, 9 N.J.
Misc.R. 1105, 156 A. 782, 783; A trial without prejudice to
the accused, State v. Smith, 119 W.Va. 347, 193 S.E. 573,
574; an orderly trial before an impartial jury, and judge
whose neutrality is indifferent to every factor in trial but
that of administering justice. State ex rel. Brown v. De-
well, 131 Fla. 566, 179 So. 695, 698, 115 A.L.R. 857. One con-
ducted according to due course of law; a trial before a
competent and impartial jury. Railroad Co. v. Cook, 37
Neb. 435, 55 N.W. 943; Railroad Co. v. Gardner, 19 Minn.
136, Gil. 99, 18 Am.Rep. 334. One conducted according to
rules of common law except in so far as it has been changed
by statute. Di Maio v. Reid, 132 N.J.L. 17, 37 A.2d 829, 830.
One conducted in substantial conformity to law. Sunder-
land v. U. S., C.C.A.Neb., 19 F.2d 202, 216; People v.
Ephraim, 77 Cal.App. 29, 245 P. 769, 774. One where ac-
cused's legal rights are safeguarded and respected. Levin-
son v. Mooney, 128 N.J.L. 569, 27 A.2d 9, 10; Garrett v.
State, 187 Miss. 441, 193 So. 452, 458; Johnson v. City of
Wildwood, 116 N.J.L. 462, 184 A. 616.
A full and fair trial, required in order that a foreign
judgment against a citizen be accorded credit in the courts
of the United States, means not a summary proceeding,
though sanctioned by the law of the forum, but an op-
portunity to be heard on the proof, where it is apparent
that the cause involves questions of fact, and to have it
considered by an unprejudiced court. Banco Minero v.
Ross, 106 Tex. 522, 172 S.W. 711, 714.
Essential factors are a fair and impartial jury and a
learned and upright judge to instruct jury and pass upon
legal questions, and an atmosphere of calm in which wit-
nesses can deliver their testimony without fear and intimi-
dation, in which attorneys can assert defendant's rights
freely and fully, and in which truth may be received and
given credence without fear of violence, Floyd v. State,
166 Miss. 15, 148 So. 226, 232. A trial before an impartial
judge, an impartial jury, and in an atmosphere of judicial
calm; that, while the judge may and should direct and
control the proceedings, and may exercise his right to com-
ment on the evidence, yet he may not extend his activities
so far as to become in effect either an assisting prpsecutor
or a thirteenth juror, Goldstein v. U. S., C.C.A.Mo., 63 F.2d
609, 613; an adequate hearing and an impartial tribunal,
free from any interest, bias, or prejudice. The Reno, C.C.
A.N.Y., 61 F.2d 966, 968.
FAIR USAGE. The doctrine of "fair usage"
means that the matter which was under copyright
was neither copied nor adopted, but that the un-
copyrightable underlying idea was used, since a
theme or idea is not copyrightable. Towle v. Ross,
D.C.Or., 32 F.Supp. 125, 127.
FAIR VALUATION. Present market value; such
sum as the property will sell for to a purchaser
desiring to buy, the owner wishing to sell; such
a price as a capable and diligent business man
could presently obtain from the property after
conferring with those accustomed to buy such
property; the amount the property would bring at
a sale on execution shown to have been in all
respects fair and reasonable; the fair market
value of the property as between one who wants
to purchase and one who wants to sell the prop.
erty. Market St. Nat. Bank v, Huff, 319 Pa. 286,
179 A. 582, 583.
As used in Bankruptcy Act the term means fair cash
value or fair market value of property as between one who
wants to purchase and one who wants to sell, Harman v.
Defatta, 182 La. 463, 162 So. 44; Trenton Trust Co. v.
Carlisle Tire Corporation, 110 Conn. 125, 147 A. 366, 367;
fair market value, or value that can be made promptly ef-
fective by owner of property for payment of debts, Nicolai-
Neppach Co. v. Smith, 154 Or. 450, 58 P.2d 1016, 1019, 107
A.L.R. 1124; In re Sedalia Farmers' Coop. Packing &
Produce Co., D.C.Mo., 268 F. 898, 900; present market val-
ue of property and the value that the debtor might realize
thereon if permitted to continue in business, Arnold v.
Knapp, 75 W.Va. 804, 84 S.E. 895, 899; value of property
taken in relation to business of debtor as a going concern,
In re Gibson Hotels, D.C.W.Va., 24 F.Supp. 859, 863. It
is not the value that would or did prevail at sacrified or
forced sale.  Bank of Forest v. Capital Nat. Bank, 176
Miss. 163, 169 So. 193, 198. Where no definite market value
can be established and expert testimony must be relied on,
fair valuation is the amount which the property ought to
give to a going concern as a fair return, if sold to some
one who is willing to purchase under ordinary selling con-
ditions. In re Kobre, D.C.N.Y., 224 F. 106, 117. The term
is not synonymous with "salable value." In re Crystal
Ice & Fuel Co., D.C.Mont., 283 F. 1007, 1009.
In determining "fair valuation" of property, court should
consider all elements entering into the intrinsic value, as
well as the selling value, and also the earning power of the
property. In re Gibson Hotels, D.C.W.Va., 24 F.Supp. 859,
863; the "fair valuation" of accounts is what with rea-
sonable diligence can be realized from their collection
within a reasonable time, Matthews v. Concrete Engineer-
ing Co., 228 Iowa 493, 292 N.W. 64, 65, 133 A.L.R. 1270.
FAIR VALUE. Present market value; such sum
as the property will sell for to a purchaser desir-
ing to buy, the owner wishing to sell; such a price
as a capable and diligent business man could pre-
sently obtain from the property after conferring
with those accustomed to buy such property; the
amount the property would bring at a sale on
execution shown to have been in all respects fair
and reasonable; fair market value of the prop-
erty as between one who wants to purchase
and one who wants to sell the property. Market
St. Nat. Bank v. Huff, 319 Pa. 286, 179 A. 582, 583.
"Actual value," "market value," "fair value," and the
like, may be used as convertible terms. Kerr v. Clinch-
field Coal Corporation, 169 Va. 149, 192 S.E. 741, 744.
In determining depreciation, "fair value" implies consid-
eration of all factors material in negotiating sale and pur-
chase of property, such as wear, decay, deterioration, ob-
solescence, inadequacy, and redundancy. Idaho Power Co.
v. Thompson, D.C.Idaho, 19 F.2d 547, 566.
Price which a seller, willing but not compelled to sell,
would take, and a purchaser, willing but not compelled to
buy, would pay, Masonite Corporation v. Robinson-Slagle
Lumber Co., D.C.La., 3 F.Supp. 754, 755; U. S. v. Crary,
D.C.Va., 2 F.Supp. 870, 879. Price which buyers of the
class which would be interested in buying property would
be justified in paying for it. In re Crane's Estate, 344 Pa.
141, 23 A.2d 851, 855. Value which willing purchaser and
seller would likely agree on. In re Aranoff & Son, D.C.Ga.,
1 F.Supp. 708, 710.
As affecting stockholder's right to participate in re-
organization plan, "fair value" of corporate debtor's prop-
erty, connotes fair market value in dealing with certain
kinds of property, and in certain cases stock exchange
quotations are the best index of value, but bonds of Re-
public of Cuba, secured by apparently adequate pledges
of revenues, should be valued at par rather than market
price in absence of specific showing that Cuba might de-
fault. In re Warren Bros. Co., D.C.Mass., 39 F.Supp. 381,
384, 385.
Dissenting stockholder is entitled on combination or
merger of corporations to "fair value" of stock determined
by an ascertainment of all assets and liabilities of corpora-
tion, intrinsic value of stock, and not merely its market
value, when traded in by the public. American General
Corporation v. Camp, 171 Md. 629, 190 A. 225, 228.
For purpose of credit upon a deficiency claim arising out
of a mortgage foreclosure proceeding, that sum which
the mortgagee purchaser ought, under all circumstances,
reasonably expect to realize from the acquired premises
either by way of sale in the future or upon the basis of
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FAITHFUL
a permanent investment. Fidelity Union Trust Co. v. Ritz
Holding Co., 126 N.J.Eq. 148, 8 A.2d 235, 245.
Reproduction cost of a public utility's property is an es-
sential element in ascertainment of its "fair value". Peo-
ples Natural Gas Co. v. Pennsylvania Public Utility Com-
mission, 153 Pa.Super. 475, 34 A.2d 375, 380.
Under Deficiency Judgment Act, fair market value at
time of execution sale as based on testimony of qualified
witnesses. Market St. Nat. Bank v. Huff, 319 Pa. 286, 179
A. 582, 583.
Within a Revenue Act levying an excise tax on corpora-
tions measured by the fair value of their capital stock,
"fair value" is the exact equivalent of "actual value."
Central Union Trust Co. of New York v. Edwards, C.C.A.
N.Y., 287 F. 324, 327.
Within statute requiring fair value of mortgaged prem-
ises to be credited on mortgage debt, interest, and costs
before confirmation of foreclosure sale or rendition of de-
ficiency judgment, that amount which under all circum-
stances of case will not shock conscience of court. North-
western Loan & Trust Co. v. Bidinger, 226 Wis. 239, 276
N.W. 645, 648.
Rate Purposes
"Fair value" rule requires that consideration be given
to original cost of construction, amount expended in per-
manent improvements, amount and market value of bonds
and stock, present cost of construction, probable earning
capacity under rates prescribed, operating expenses, ac-
crued depreciation, market value of land, working capital,
going concern value, and future costs of construction.
State ex rel. and to Use of City of St. Louis v. Public
Service Commission, 326 Mo. 751, 34 S.W.2d 507, 510.
A "fair value" for rate making is not the value for ex-
change, but such a value found after considering all rele-
vant facts as will give the public utility a reasonable re-
turn and the public a reasonable rate. It is one which will
enable the public utility to realize the expense of operating
and keeping up its road and meeting its financial obliga-
tions for investments with a reasonable excess for dividends
and ordinary contingencies. City of Rochester v. New
York State Rys., 127 Misc. 766, 217 N.Y.S. 452, 458.
"Fair value" must include increase in value over original.
cost. Northern States Power Co. v. Public Service Com-
mission, 73 N.D. 211, 13 N.W.2d 779, 786, 787.
"Fair value of the property" is not necessarily synony-
mous with "reconstruction cost depreciated." State ex rel.
Oregon-Washington Water Service Co. v. Department of
Public Works of Washington, 184 Wash. 45, 51 P.2d 610,
612.
Historical cost, provided consideration is given to changes
in price level, reproduction cost at time of inquiry, less
accrued depreciation, provided reproduction cost of com-
ponents can be found with reasonable certainty, financial
history of utility, and other relevant facts, may be con-
sidered in determining "fair value" of a utility's property.
State v. Tri-State Telephone & Telegraph Co., 204 Minn.
516, 284 N.W. 294, 306.
Reproduction cost of a utility is an element in ascertain-
ment of "fair value". Solar Electric Co. v. Pennsylvania
Public Utility Commission, 137 Pa.Super. 325, 9 A.2d 447,
456, 460, 463, 464, 466.
Reproduction cost of telephone company's property, less
actual depreciation, is not the legal equivalent of "fair
value" but is merely evidence of value. New York Tele-
phone Co. v. Prendergast, D.C.N.Y., 36 F.2d 54, 59.
The book cost of a telephone company's exchange plant
b.nd the "reproduction cost new" basis are recognized
methods of ascertaining "fair value" of the company's
property. Application of Northwestern Bell Tel. Co., 69
S.D. 36, 6 N.W.2d 165, 169.
The "fair value" as a rate base and the "value" in
money for purposes of taxation of a public utility are not
necessarily the same. State ex rel. Public Service Com-
mission v. Southern Pac. Co., 95 Utah 84, 79 P.2d 25, 34.
The "fair value" of a utility's property is the cost of
reproduction, less depreciation at time in question, whether
more or less than original cost. Citizens' Gas Co. of Han-
nibal v. Public Service Commission of Missouri, D.C.Mo.,
8 F.2d 632, 633. It is the reasonable value of property, used
and useful, for the service of the public at the time the
property is being so used. Northern States Power Co. v.
Board of Railroad Com'rs, 71 N.D. 1, 298 N.W. 423, 431.
Value of additions completed and in use by a utility
should be allowed in rate case in determining "fair value".
Northern States Power Co. v. Board of Railroad Com'rs,
71 N.D. 1, 298 N.W. 423, 431.
FAIRLY. Equitably, honestly, impartially. Loon-
ey v. Elliott, Tex.Civ.App., 52 S.W.2d 949, 952. In
good faith, People v. Mancuso, 255 N.Y. 463, 175
N.E. 177, 179. Justly; rightly. With substantial
correctness. Reasonably. Conway v. Robinson,
216 Ala. 495, 113 So. 531, 533. Equitably. Satcher
v. Satcher's Adm'r, 41 Ala. 40, 91 Am.Dec. 498.
"Fairly merchantable" conveys the idea of medi-
ocrity in quality, or something just above it.
Warner v. Ice Co., 74 Me. 479.
"Fairly" is not synonymous with "truly," and "truly"
should not be substituted for it in a commissioner's oath,
to take testimony fairly. Language may be truly, yet un-
fairly, reported; that is, an answer may be truly written
down, yet in a manner conveying a different meaning from
tliat intended and conveyed. And language may be fairly
reported, yet not in accordance with strict truth. Law-
rence v. Finch, 17 N.J.Eq. 234.
FAIRWAY. A strip of land, where the grass is
kept mowed, and at the opposite ends of which
are a green and a tee. Page v. Unterreiner, Mo.
App., 106 S.W.2d 528, 532.
The middle and deepest or most navigable channel.
Water on which vessels of commerce habitually move;
Horst v. Columbia Contract Co., 89 Or. 344, 174 P. 161, 163.
The word "thalweg" (q.v.), from which it is apparent-
ly derived, has reference more particularly to navigable
channels as boundaries. Johnnsson v. American Tugboat
Co., 147 P. 1147, 85 Wash. 212.
FAIT. L. Fr. Anything done. A deed; act;
fact.
A deed lawfully executed. Corn. Dig.
Ferne (or Femme) . de fait. A wife de facto.
FAIT ENROLLE. A deed enrolled, as a bargain
and sale of freeholds. 1 Keb. 568.
FAIT JURIDIQUE. In French law. A juridical
fact. One of the factors or elements constitutive
of an obligation.
FAITH. Confidence; credit; reliance. Thus, an
act may be said to be done "on the faith" of cer-
tain representations.
Belief ; credence; trust. Thus, the constitution provides
that "full faith and credit" shall be given to the judg-
ments of each state in the courts of the others.
Purpose; intent; sincerity; state of knowledge or de-
sign. This is the meaning of the word in the phrases
"good faith" and "bad faith."
Scotch Law. A solemn pledge; an oath. "To
make faith" is to swear, with the right hand up-
lifted, that one will declare the truth. 1 Forb.
Inst. pt. 4, p. 235.
FAITHFUL. Trusty,  honest, trustworthy.
Wright v. Fidelity & Deposit Co. of Maryland, 176
Okl. 274, 54 P.2d 1084, 1087.
As used in the rule that executors must be "faithful,"
means that they must act in good faith. In re McCafferty's
Will, 147 Misc. 179, 264 N.Y.S. 38.
The guaranty required by statute and bond of "faithful"
discharge of school district treasurer's duties is a guaranty
not only of treasurer's personal honesty but also of his
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FAITHFUL
competency, skill and diligence in discharge of his duties.
Thurston County, to Use of Vesely, v. Chmelka, 138 Neb.
696, 294 N.W. 857, 863, 132 A.L.R. 1077.
Where a public officer gives a bond for the "faithful"
discharge of his duties, "faithful" implies that he has as-
sumed that measure of responsibility laid on him by law
had no bond been given. Thurston County, to Use of Vese-
ly, v. Chmelka, 138 Neb. 696, 294 N.W. 857, 863, 132 A.L.R.
1077; London & Lancashire Indemnity Co. of America v.
Community Savings & Loan Ass'n, 102 Ind.App. 665, 4 N.E.
2d 688, 693.
FAITHFULLY. Conscientious diligence or faith-
fulness, adequate to due execution of object of
bailment, or just regard of adherence to duty, or
due observance of undertaking of contract. Com-
monwealth v. Polk, 256 Ky. 100, 75 S.W.2d 761, 765.
Diligently, and without unnecessary delay;—not
synonymous with "fairly" or "impartially." Den
v. Thompson, 16 N.J.L. 72, 73. Truthfully, sin-
cerely, accurately. Kansas City, M. & 0. R. Co.,
of Texas v. Whittington & Sweeney, Tex.Civ.App.,
153 S.W. 689, 690.
As used in bonds of public and private officers, this term
imports not only honesty, but also a punctilious discharge
of all the duties of the office, requiring competence, dili-
gence, and attention, without any malfeasance or non-
feasance, aside from mere mistakes. State v. Chadwick,
10 Or. 468; Hoboken v. Evans, 31 N.J.L. 343; Harris v.
Hanson, 11 Me. 245.
FAITOURS. Idle persons; idle livers; vaga-
bonds. Termes de la Ley; Cowell; Blount; Cun-
ningham, Law Dict.
FAKE. To make or construct. A "faked alibi"
is a made, manufactured, or false alibi. U. S. v.
Heftier, D.C.I11., 274 F. 401, 409.
FAKER. A petty swindler. National Automo-
bile Ass'n v. Strunk, 122 Neb. 890, 240 N.W. 294.
FAKIR. A term applied among the Mohamme-
dans to a kind of religious ascetic or beggar,
whose claim is that he "is in need of mercy, and
poor in the sight of God, rather than in need of
worldly assistance." Hughes, Dict. of Islam.
Sometimes spelled Faqueer or Fakeer. It is commonly
used in English to designate a person engaged in some use-
less or dishonest business. Fake is also so used and also
to designate the quality of such business.
A street peddler who disposes of worthless wares, or of
any goods above their value, by means of any false repre-
sentation, trick, device, lottery, or game of chance. Mills'
Ann.St.Colo. 1400, '35 C.S.A. c. 48, 227.
FALANG. In old English law. A jacket or close
coat. Blount.
FALCARE. In old English law. To mow. For
"Jus Folcandi", see that title.
Falcare prata, to mow or cut grass in meadows laid in
for hay. A customary service to the lord by his inferior
tenants. Kennett, Gloss.
Falcata, grass fresh mown, and laid in swaths. That
which was mowed. Kennett, Gloss.; Cowell; Jacobs.
Faicatio, a mowing. Bract. fols. 35b, 230.
Falcator, a mower; a servile tenant who performed the
labor of mowing.
Falcatura, a day's mowing. Falcatura una. Once mow-
ing the grass.
FALCARIOUS. See Falsarius,
FALCIDIA. In Spanish law. The Falcidian por-
tion; the portion of an inheritance which could
not be legally bequeathed away from the heir,
viz., one-fourth.
FALCIDIAN LAW. In Roman law. A law on
the subject of testamentary disposition.
It was enacted by the people during the reign of Augus-
tus, in the year of Rome 714, on the proposition of the
tribune Falcidius. By this law, the testator's right to bur-
den his estate with legacies was subjected to an important
restriction. It prescribed that no one could bequeath more
than three-fourths of his property in legacies, and that
the heir should have at least one-fourth of the estate, and
that, should the testator violate this prescript, the heir
may have the right to make a proportional deduction from
each legatee, so far as necessary. Mackeld.Rom.Law, §
771; Inst. 2, 22; Heinecc.Elem. lib. 2, tit. 22.
A similar principle exists in Louisiana. See Legitime.
In some of the states the statutes authorizing bequests
and devises to charitable corporations limit the amount
which a testator may give, to a certain fraction of his
estate.
FALCIDIAN PORTION. That portion of a tes-
tator's estate which, by the Falcidian law, was
required to be left to the heir, amounting to at
least one-fourth.
FALD, or FALDA. A sheep-fold. Cowell.
FALDA. Span. In Spanish law. The slope or
skirt of a hill. Fossat v. United States, 2 Wall.
673, 17 L.Ed. 739.
FALDIE CURSUS. In old English law. A fold-
course; the course (going or taking about) of a
fold. Spelman. A sheep walk, or feed for sheep.
2 Vent. 139.
FALDAGE. The privilege which anciently sev-
eral lords reserved to themselves of setting up
folds for sheep in any fields within their manors,
the better to manure them, and this not only with
their own but their tenants' sheep. Called, var-
iously, "recta faldare," "fold-course," "free-hold,"
"faldagii."  Cowell;  Spelman; Cunningham,
Law Dict.
FALDATA. In old English law. A flock or fold
of sheep. Cowell.
FALDFEY. Sax. A fee or rent paid by a tenant
to his lord for leave to fold his sheep on his own
ground. Blount; Cunningham, Law Dict,
FALDISDORY. In ecclesiastical law. The bish-
op's seat or throne within the chancel.
FALDSOCA. Sax. The liberty or privilege of
foldage.
FALDSTOOL. A place at the south side of the
altar at which the sovereign kneels at his coron-
ation. Wharton.
A folding seat similar to a camp stool, made either of
wood or metal, sometimes covered with silk or other ma-
terial. It was used by a bishop when officiating in other
than his own cathedral church. Encyc.Dic.
FALDWORTH. In Saxon law. A person reck-
oned old enough to become a member of the de-
cennary, and so subject to the law of frank-pledge.
Spelman; Du Fresne.
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FALERIE. In old English law. The tackle and
furniture of a cart or wain. Blount.
FALESIA. In old English law. A hill or down
by the sea-side. Co. Litt. 5b; Domesday.
FALK-LAND. See Folc-Land.
FALL, n. One of the four seasons of the year,
embracing the three months commencing with the
1st of September and terminating with the last
day of November. Rosenau v. Lansing, 113 Or.
638, 232 P. 648; Horn v. State, 19 Ala.App. 572,
99 So. 58. But a finding that certain persons oc-
cupied a house until the fall of each year has
been held ambiguous, since "fall" covers a period
of time of upward of three months. Clegg v.
Bishop, 105 Conn. 564, 136 A. 102, 104.
FALL, v. In Scotch law. To lose or loose. To
fall from a right is to lose or forfeit it. 1 Kam-
es, Eq. 228.
As used in fire policy provision that if building or any
part thereof "fall," except as result of fire, all insurance
on contents of building should immediately cease, includes
any situation where building once erect lies prostrate.
Nalley v. Hanover Fire Ins. Co., 56 Ga.App. 555, 193 S.E.
619, 622.
The statute provision concerning holding of courts which
fall between January and June, both inclusive, includes
any term which begins in June, the word "fall" meaning
to come, become, occur, or arise. West v. F. W. Woolworth
Co., 214 N.C. 214, 198 S.E. 659, 660.
FALL OF LAND. In English law. A quantity of
land six ells square superficial measure.
FALLING. When the one object descends upon
the other, we do not speak of it as colliding with
the second, but as "falling" upon it. Atlas Assur.
Co. v. Lies, 70 Ga.App. 162, 27 S.E.2d 791, 794.
FALLO. In Spanish law. The final decree or
judgment given in a controversy at law.
FALLOPIAN TUBE. An essential part of the
female reproductive system, consisting of a nar-
row conduit, some four inches in length, that
extends on each side of a woman's body from the
base of the womb to the ovary upon that side.
Smith v. Board of Examiners of Feeble-Minded,
85 N.J.L. 46, 88 A. 936, 965.
FALLOW. Barren or unproductive. May v.
American Trust Co., 153 Cal.App. 385, 27 P.2d 101.
FALLOW-LAND. Land plowed, but not sown,
and left uncultivated for a time after successive
crops; land left untilled for a year or more.
FALLUM. In old English law. An unexplained
term for some particular kind of land. Cowell;
Jacob, L. Dic.
FALSA DEMONSTRATIO. In the civil law.
False designation; erroneous description of a per-
son or thing in a written instrument. Inst. 2, 20,
30.
FALSA DEMONSTRATIO NON NOCET, CUM
DE CORPORE (PERSONA) CONSTAT. False
description does not injure or vitiate, provided the
thing or person intended has once been sufficiently
described. Mere false description does not make
an instrument inoperative. Broom, Max. 629; 6
Term, 676; 11 Mees. & W. 189; Cleaveland v.
Smith, 2 Story, 291, Fed.Cas.No.2,874. See 1
Greenleaf, Evidence, § 301; 2 Pars. Contr. 62, n.;
4 C. B. 328; 14 C. B. 122; Sargent v. Adams, 3
Gray (Mass.) 78, 63 Am.Dec. 718.
FALSA DEMONSTRATIONE LEGATUM NON
PERIMI. A bequest is not rendered void by an
erroneous description. Inst. 2, 20, 30; Broom,
Max. 645; Roman Catholic Orphan Asylum v.
Emmons, 3 Bradf. Sur., N.Y., 144, 149.
FALSA GRAMMATICA NON VITIAT CONCES-
SIONEM. False or bad grammar does not vitiate
a grant. Shep. Touch. 55; 9 Coke, 48a. Neither
false Latin nor false English will make a deed
void when the intent of the parties doth plainly
appear. Shep. Touch. 87.
FALSA MONETA. In the civil law. False or
counterfeit money. Cod. 9, 24.
FALSA ORTHOGRAPHIA NON VITIAT
CHARTAM, CONCESSIONEM. False spelling
does not vitiate a deed. Shep. Touch. 55, 87;
9 Coke, 48a; Wing. Max. 19; Bart. Max. 164.
FALSARE. In old English law. To counterfeit.
Quia falsavit sigillum, because he counterfeited
the seal. Bract. fol. 276b.
FALSARIUS (or FALCARIOUS). A counterfeit-
er. Townsh. PL 260.
FALSE. Not true. State v. Arnett, 338 Mo. 907,
92 S.W.2d 897, 900; Sentinel Life Ins. Co. v. Black-
mer, C.C.A.Colo., 77 F.2d 347, 352.
It also means:
Artificial. U. S. v. Darby, D.C.Md., 2 F.Supp. 378, 379;
Sentinel Life Ins. Co. v. Blackmer, C.C.A.Colo., 77 F.2d
347, 352; assumed or designed to deceive. Sentinel Life
Ins. Co. v. Blackmer, C.C.A.Colo., 77 F.2d 347, 352; North
American Accident Ins. Co. v. Tebbs, C.C.A.Utah, 107 F.2d
853, 855; contrary to fact. In re Davis, 349 Pa. 651, 37 A.
2d 498, 499; counterfeit, Sentinel Life Ins. Co. v. Blackmer,
C.C.A.Colo., 77 F.2d 347, 352; North American Accident
Ins. Co. v. Tebbs, C.C.A.Utah, 107 F.2d 853, 855; deceitful;
deliberately and knowingly false, People v. Mangan, 140
Misc. 783, 252 N.Y.S. 44, 52; designedly untrue, W. T.
Rawleigh Co. v. Brantley, 97 Miss. 244, 19 So.2d 808, 811,
157 A.L.R. 188; erroneous, Abel v. Paterno, 153 Misc. 248,
274 N.Y.S. 749; Gilbert v. Inter-Ocean Casualty Co. of
Cincinnati, Ohio, 41 N.M. 463, 71 P.2d 56, 59; hypocritical;
sham; feigned, Sentinel Life Ins. Co. v. Blackzrfer, C.C.A.
Colo., 77 F.2d 347, 352; North American Accident Ins. Co.
v. Tebbs, C.C.A.Utah, 107 F.2d 853, 855; incorrect, State
v. Arnett, 338 Mo. 907, 92 S.W.2d 897, 900; intentionally
untrue. In re Venturella, D.C.Conn., 25 F.Supp. 332, 333;
In re Cleveland, D.C.Mich., 40 F.Supp. 343; not according
to truth or reality. State v. Arnett, 338 Mo. 907, 92 S.W.
2d 897, 900; North American Accident Ins. Co. v. Tebbs,
C.C.A.Utah, 107 F.2d 853, 855; not genuine or real; U. S.
v. Darby, D.C.Md., 2 F.Supp. 378, 379; North American
Accident Ins. Co. v. Tebbs, C.C.A.Utah, 107 F.2d 853, 855;
uttering falsehood; unveracious; .given to deceit; dis-
honest, Wilensky v. Goodyear Tire & Rubber Co., C.C.A.
Mass., 67 F.2d 389, 390; wilfully and intentionally untrue.
In re Brown, D.C.N.Y., 37 F.Supp. 526, 527; North Amer-
ican Accident Ins. Co. v. Tebbs, C.C.A.Utah, 107 F.2d 853,
855.
Court's substitution in charge of term "fraudulent" in
place of term "false" held not misleading. Wood v. Wil-
liams, Tex.Civ.App., 46 S.W.2d 332, 334.
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FALSE
In law, this word usually means something more than
untrue; it means something designedly untrue and deceit-
ful, and implies an intention to perpetrate some treachery
or fraud. Hatcher v. Dunn, 102 Iowa, 411, 71 N.W. 343, 36
L.R.A. 689; Masofi. v. Association, 18 U.C.C.P. 19; State v.
Leonard, 73 Or. 451, 144 P. 113, 118; State v. Smith, 63 Vt.
201, 22 A. 604. It implies either conscious wrong or
culpable negligence, and signifies knowingly or negligently
untrue. United States v. Ninety-Nine Diamonds, C.C.A.
Minn., 139 F. 961, 72 C.C.A. 9, 2 L.R.A.,N.S., 185.
The word "false" has two distinct and well-recognized
meanings ; (1) intentionally or knowingly or negligently
untrue; (2) untrue by mistake or accident, or honestly aft-
et the exercise of reasonable care. Metropolitan Life Ins.
Co. v. Adams, D.C.Mun.App., 37 A.2d 345, 350. In jurispru-
dence, "false" and "falsely" are oftenest used to character-
ize a wrongful or criminal act, such as involves an error
or untruth, intentionally or knowingly put forward. A
thing is called "false" when it is done, or made, with
knowledge, actual or constructive, that it is untrue or il-
legal, or is said to be done falsely when the meaning is
that the party is in fault for its error. Fouts v. State,
113 Ohio St. 450, 149 N.E. 551, 554; Monahan v. Mutual
Life Ins. Co. of New York, 192 Wis. 102, 212 N.W. 269, 271.
The word "false" in its juristic use implies something
more than a mere untruth, Dombroski v. Metropolitan Life
Ins. Co., 126 N.J.L. 545, 19 A.2d 678, 680.
The word "false" sometimes connotes an intent to de-
ceive, People v. Wahl, 39 Cal.App.2d Supp. 771, 100 P.2d
550, 551; Salt's Textile Mfg. Co. v. Ghent, 107 Conn. 211,
139 A. 694, 695.
FALSE ACTION, See Feigned Action.
FALSE AND FRAUDULENT. The phrase "false
and fraudulent" in Food and Drugs Act of 1906
means that the statement must have been made
with actual intent to deceive. United States v.
Dr. David Roberts Veterinary Co., C.C.A.Wis., 104
F.2d 785, 788.
To amount to actionable "false and fraudulent repre-
sentations", they must have been as to existing fact or
known by one making them, from his superior knowledge,
to have been untrue when made. Burlison v. Weis, Mo.
App., 152 S.W.2d 201, 203.
FALSE AND MISLEADING STATEMENT. Fail-
ure to state material fact made letter a "false
and misleading statement" within rule of Secur-
ities and Exchange Commission. Securities and
Exchange Commission v. Okin, C.C.A.N.Y., 132
F.2d 784, 787.
FALSE ANSWER. In pleading. A sham answer;
one which is false in the sense of being a mere
pretense set up in bad faith and without color of
fact. Howe v. Elwell, 57 App.Div. 357, 67 N.Y.
Supp. 1108; Farnsworth v. Halstead, Sup., 10 N.Y.
S. 763.
FALSE ARREST. Any unlawful physical re-
straint by one of another's liberty, whether in
prison or elsewhere. Gariety v. Fleming, 121 Kan.
42, 245 P. 1054, 1055; Russell v. Levinsohn, 5 N.J.
Misc. 765, 138 A. 205; Great Atlantic & Pacific
Tea Co. v. Phillips, 253 Ky. 126, 69 S.W.2d 5.
FALSE CHARACTER. Personating the master
or mistress of a servant, or any representative of
such master or mistress, and giving a false char-
acter to the servant is an offense punishable in
England with a fine of £20. St. 32 Geo. III. c. 56.
FALSE CHECKS. Obtaining money by means
and use of a check upon a bank, in which the
drawer at the time had no funds or credit with
which to meet the same, and which he had no
reason to believe would honor such check upon
presentation at said bank for payment, is obtain-
ing money by use of a false check. Gunther v.
State, 42 Okl.Cr. 129, 276 P. 237, 238.
FALSE CLAIM, in the forest law, was where a
man claimed more than his due, and was amerced
and punished for the same. Manw. c. 25; Tom-
lins.
As used in a statute making it a felony to present to
any state, county, or city board or officer a false or fraudu-
lent claim, a "false claim" is something more than a mere-
ly excessive claim. Burke v. Knox, 59 Utah, 596, 206 P. 711,
714. The act of knowingly making untruthful statements
of material facts in "reasons for refund" of excise taxes,
supported by fictitious copies of letters and cards attached
thereto, constitutes "false claim" against government,
within Criminal Code, § 35 (18 T.JSCA §§ 80, 82-86). Evans
v. U. S., C.C.A.S.C., 11 F.2d 37, 39.
FALSE DECRETALS. A collection of canon law,
dated about the middle of the 9th century, prob-
ably by a Frankish ecclesiastic who called himself
Isadon. It continued to be the chief repertory of
the canon law till the 15th century when its un-
trustworthy nature was demonstrated.
FALSE DEMONSTRATION. Where description
of person or thing in will is partly true and partly
false, if part which is true describes subject or
object of gift with sufficient certainty, untrue part
may be rejected and gift sustained, under doctrine
of "false demonstration." In re Heins' Estate, 132
Cal.App. 131, 22 P.2d 549.
FALSE ENTRY. An entry in books of a bank or
trust company which is intentionally made to rep-
resent what is not true or does not exist, with
intent either to deceive its officers or a bank ex-
aminer or to defraud the bank or trust company.
Agnew v. U. S., 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed.
624; Fricke v. State, 112 Neb. 767, 201 N.W. 667,
670; Commonwealth v. Bardolph, 111 Pa.Super.
85, 169 A. 574, 575; U. S. v. Mulloney, D.C.Mass.,
5 F.Supp. 77, 79.
An untrue statement of items of account by written
words, figures, or marks. United States v. Herrig, D.C.
Mont., 204 F. 124, 125. One making an original false entry
makes a false entry in every book which is made up in
regular course from the entry or entries from the original
book of entry. State v. Davidson, 46 N.D. 564, 180 N.W. 31,
32.
Where entry upon books of bank of matter contained in
deposit slip is not true it is a "false entry," Adams v.
State, 179 Ark. 1047, 20 S.W.2d 130, 133.
Entries made by cashier of balance in insurance com-
pany's account after deducting unauthorized withdrawals
made by cashier as agent of insurance company held "false
entries" within statute. 18 U.S.C.A. § 1005. Laws v. U. S.,
C.C.A.Okl., 66 F.2d 870, 873.
FALSE FACT. In the law of evidence. A
feigned, simulated, or fabricated fact; •a fact not
founded in truth, but existing only in assertion;
the deceitful semblance of a fact.
FALSE IMPERSONATION. To impersonate an-
other falsely, and iri such assumed character to
do any act whereby any benefit might accrue to
the offender or to another person. People v.
Horkans, 109 Colo. 177, 123 P.2d 824.
•
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FALSE PRETENSES
FALSE IMPRISONMENT. See Imprisonment.
FALSE INSTRUMENT. A counterfeit; one
made in the similitude of a genuine instrument
and purporting on its face to be such. U. S. v.
Howell, 11 Wall. 435, 20 L.Ed. 195; U. S. v. Owens,
C.C.Tenn., 37 Fed. 115; State v. Willson, 28 Minn.
52, 9 N.W. 28.
FALSE JUDGMENT. In old English law. A
writ which lay when a false judgment had been
pronounced in a court not of record, as a county
court, court baron, etc. Fitzh. Nat. Brev. 17, 18.
In old French law. The defeated party in a
suit had the privilege of accusing the judges of
pronouncing a false or corrupt judgment, where-
upon the issue was determined by his challenging
them to the combat or duellum. This was called
the "appeal of false judgment." Montesq. Esprit
des Lois, liv. 28, c. 27.
FALSE LATIN. When law proceedings were
written in Latin, if a word were significant though
not good Latin, yet an indictment, declaration, or
fine should not be made void by it; but if the
word were not Latin, nor allowed by the law, and
it were in a material point, it made the whole
vicious. (5 Coke, 121; 2 Nels. 830.) Wharton.
FALSE LIGHTS AND SIGNALS. Lights and sig-
nals falsely and maliciously displayed for the
purpose of bringing a vessel into danger. See
stat. 24 & 25 Vict. c. 97, § 47; 18 U.S.C.A. § 488.
FALSE MAKING. An essential element of forg-
ery, where material alteration is not involved.
Term has reference to manner in which writing
is made or executed rather than to its substance
or effect. A falsely made instrument is one that
is fictitious, not genuine, or in some material par-
ticular something other than it purports to be and
without regard to truth or falsity of facts stated
therein. Wright v. U. S., C.A.Ariz., 172 F.2d 310,
311.
FALSE NEWS. Spreading false news, whereby
discord may grow between the queen of Eng-
land and her people, or the great men of the
realm, or which may produce other mischiefs,
still seems to be a misdemeanor, under St. 3 Edw.
I. c. 34. Steph. Cr. Dig. § 95.
FALSE OATH. To defeat discharge in bank-
ruptcy "false oath" must contain all the elements
involved in "perjury" at common law, namely, an
intentional untruth in matter material to a ma-
terial issue, In re , Bergman, D.C.N.Y., 6 F.Supp.
898, 901, it must have been knowingly and fraud-
ulently made. In re Stone, D.C.N.H., 52 F.2d
639, 641. See, also, Perjury.
FALSE OR FRAUDULENT CLAIM. A "false or
fraudulent claim" within meaning of statute pro-
viding for punishment of any one receiving pro-
ceeds of fraudulent audit or payment, since to be
"false or fraudulent," must be a claim for serv-
ices or materials not actually rendered or fur-
nished. People v. Dally, 175 Misc. 680, 24 N.Y.S.2d
692, 695.
FALSE PAPER. In a statute defining an offense
of willfully and knowingly subscribing to "false
papers" to deceive bank examiners, the term re-
fers not to one which is forged or spurious, but
to a paper duly subscribed by the person purport-
ing to sign it, and containing an untrue statement
in the body of the instrument. State v. Pierson,
101 Wash. 318, 172 P. 236, 238.
FALSE PERSONATION. The criminal offense
of falsely representing some other person and
acting in the character thus unlawfully assumed,
in order to deceive others, and thereby gain some
profit or advantage, or enjoy some right or priv-
ilege belonging to the one so personated, or sub-
ject him to some expense, charge, or liability. See
4 Steph. Comm. 181, 290.
FALSE PLEA, See Sham Plea.
FALSE PRETENSES. Designed misrepresenta-
tion of existing fact or condition whereby person
obtains another's money or goods. People v.
Gould, 363 Ill. 348, 2 N.E.2d 324.
Elements of offense include actual fraud, State
v. Nuser, 199 Minn. 315, 271 N.W. 811, 812; State v.
Mayer, 196 N.C. 454, 146 S.E. 64, 65; assertion of a
present or past fact, Slaughter v. Commonwealth,
222 Ky. 225, 300 S.W. 619, 621, 56 A.L.R. 1209;
State v. Nuser, 199 Minn. 315, 271 N.W. 811, 812,
falsity of representation, State v. Mayer, 196 N.C.
454, 146 S.E. 64, 65; People v. Leaverton, 107 Cal.
App. 51, 289 P. 890, 892; intent to cheat and de-
fraud. Commonwealth v. Campbell, 116 Pa.Su-
per. 180, 176 A. 246, 250; State v. Johnson, 195
N.C. 506, 142 S.E. 775, 776; knowledge of the
falsity, fraud. Couch v. State, 31 Ala.App. 586,
20 So.2d 57, 58; Dennis v. Thomson, 240 Ky.
727, 43 S.W.2d 18, 25; obtaining of property or
something of value. State v. Johnson, 195 N.C.
506, 142 S.E. 775, 776; Couch v. State, 31 Ala.App.
586, 20 So.2d 57, 58; perpetration of fraud by
means of such false pretenses, State v. Hintz, 200
Wis. 636, 229 N.W. 54, 55; reliance on representa-
tion, State v. Howley, 220 N.C. 113, 16 S.E.2d 705,
708, 709; use of pretenses or false representa-
tions, Dennis v. Thomson, 240 Ky. 727, 43 S.W.2d
18, 25; State v. Mayer, 196 N.C. 454, 146 S.E. 64,
65.
Other definitions of "false pretenses" include:
False representation of existing fact or condition by
which a party obtains property of another, People ex rel.
Courtney v. Sullivan, 363 Ill. 34, 1 N.E.2d 206, 208; false
representation of existing fact, whether by oral or written
words or conduct, calculated to deceive, intended to de-
ceive, and does in fact deceive, whereby one person ob-
tains value from another without compensation, Common-
wealth v. Johnson, 312 Pa. 140, 167 A. 344, 345, 89 A.L.R.
333; State v. Alick, 62 S.D. 220, 252 N.W. 644; false rep-
resentation of existing or past fact calculated to induce
confidence on part of one to whom representation is made,
and accompanied by or blended with a promise to do some-
thing in future, State v. Parkinson, 181 Wash. 69, 41 P.2d
1095, 1097; false representation of existing fact, made
with knowledge of falsity, with intent that party to whom
it is made should act upon it, and acted upon by such
party to his detriment. Griffith v. State, 93 Ohio St. 294,
112 N.E. 1017, 1018; State v. Hathaway, 168 Wis. 518, 170
N.W. 654, 656; State v. Whitney, 43 Idaho, 745, 254 P. 525,
526; Smith v. State, 74 Fla. 594, 77 So. 274, 276; false rep-
resentation of past or existing fact, made with knowledge
of falsity, with intent to deceive and defraud, and which
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FALSE PRETENSES
is adapted to deceive person to whom made, State v. Alick,
62 S.D. 220, 252 N.W. 644; false representations and state-
ments, made with a fraudulent design to obtain money,
goods, wares, or merchandise, with intent to cheat, 2 Bouv.
Inst. no. 2308; false statement made with knowledge of
its falsity, which is intended to deceive, and which in fact
does deceive, and injury results, Morris Plan Bank of
Richmond v. Henderson, D.C.N.C., 57 F.2d 326, 327; fraud-
ulent representation of fact by one who knows it not to be
true as is adapted to induce person to whom made to part
with something of value, Fisher v. 'State, 161 Ark. 586, 256
S.W. 858, 860; State v. Tanner, 22 N.M. 493, 164 P. 821,
822, L.R.A.1917E, 849; State v. Luff, 1 Boyce (Del.) 152, 74
A. 1079, 1080; State v. Barr, 63 Idaho 59, 117 P.2d 282, 286;
misrepresentation of past fact, knowingly made to induce
another to part with his property, People v. Martin, 372
Ill. 484, 24 N.E.2d 380, 381, 382; misstatement of fact,
Carr v. State, 60 Ga.App. 590, 4 S.E.2d 500, 501; represen-
tation of some fact or circumstance, calculated to mislead
or deceive, which is not true, State v. Grant, 86 Iowa 216, 53
N.W. 120; Commonwealth v. McKnight, 289 Mass. 530, 195
N.E. 499, 506.
A "false pretense" must be as to an existing or past fact.
State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 689; Common-
wealth v. Becker, 151 Pa.Super. 169, 30 A.2d 195, 197.
A pretense is the holding out or offering to others some-
thing false and feigned. This may be done either by words
or actions, which amount to false representations. In fact,
false representations are inseparable from the idea of a
pretense. Without a representation which is false there
can be no pretense. State v. Joaquin, 43 Iowa, 132.
Gist of offense of "obtaining money by false pretenses"
is the fraud and deception by the perpetrator, his motive,
and the result-the fact that a person was deceived and
defrauded. Frazier v. Commonwealth, 291 Ky. 467, 165
S.W.2d 33, 34.
Giving of worthless check is, in itself, "false pretense".
State v. Augustine, 114 W.Va. 143, 171 S.E. 111, 113; Laird
v. Employers Liability Assur. Corporation, Limited, of
London, England, 2 Terry 216, 18 A.2d 861, 862.
In "false pretenses" owner intends to part with his prop-
erty in 'money or chattel but it is obtained from him by
fraud. People v. Santora, 51 Cal.App.2d 707, 125 P.2d 606,
608.
One distinction between "embezzlement" and "false pre-
tenses" is that in the former case the defendant does not
have title to the property, while in the latter, he has.
State v. Serkau, 128 Conn. 153, 20 A.2d 725, 727.
Confidence game distinguished
A "confidence game" is any swindling opera-
tion in which advantage is taken of the confi-
dence reposed by the victim in the swindler. It
consists of gaining the possession of money or
property by means of some trick, device, or swin-
dling operation in which advantage is taken of the
confidence of the victim reposed in the swindler.
In obtaining money by "false pretenses," the false
pretenses used must have been believed and relied
on by the defrauded party and been the means
of inducing the victim to part with his property.
People v. Blume, 345 Ill. 524, 178 N.E. 48, 52.
"Confidence game" is not established by mere proof that
property has been obtained by false pretense. Clark v.
State, 53 Ariz. 416, 89 P.2d 1077, 1080.
Larceny and false pretenses distinguished
In larceny owner has no intention to part with his prop-
erty, although he may intend to part with possession,
while in false pretenses the owner does intend to part
with the property but it is obtained from him by fraud.
People v. Shwartz, 43 Cal.App. 696, 185 P. 686, 687. Roberta
v. State, 181 Ind. 520, 104 N.E. 970, 971.
In larceny owner has no intention to part with title to
and possession of property taken, while in false pretenses
he does so intend, but it is obtained from him by fraud.
Simmons v. State, 165 Md. 155, 167 A. 60, 64.
Only a very narrow distinction exists between "larceny"
and "false pretense"; the character of the crime depend-
ing on the intention of the parties. Riley v. State, 64 Okl.
Cr. 183, 78 P.2d 712, 716.
The intention of owner of property not to part with ti-
tle when relinquishing possession of property is vital point
to be determined in distinguishing between "larceny by
fraud" and obtaining property by "false pretenses". Dob-son v. State, 74 Okl.Cr. 341, 126 P.2d 95, 101.
Obtaining money or property by false pretenses
Elements are intent to defraud, actual fraud, false pre-
tense, and fraud resulting therefrom, Simmons v. State,
165 Md. 155, 167 A. 60, 64; false pretenses, that propertywas obtained thereby, that false pretenses were made with
intent to cheat and defraud, and that money was paid in
reliance upon and under inducement of false pretenses,
People v. Sloane, 165 Misc. 444, 300 N.Y.S. 1032, 1035.
It is sufficient if false pretenses are a part of the mov-
ing cause, and, without them, the defrauded party would
not have parted with the property. State v. Faulkner, 139
Kan. 665, 33 P.2d 175, 177.
The distinction between "obtaining money by false pre-
tenses" and forgery is that in the former, the acquisition
of the money is the principal thing, while in forgery the
making, altering, uttering, or publishing of the written
instrument is the principal part, and money need not nec-
essarily be obtained. State v. Hobl, 108 Kan. 261, 194 P.921, 924.
The false representations may be made by implication.
Johnson v. People, 110 Colo. 283, 133 P.2d 789, 792.
The "false pretense" may be the failure to speak when
it was necessary to do so. People v. Etzler, 292 Mich. 489,
290 N.W. 879, 880.
The ‘"false pretense" must relate to existing fact, or to
fact which has theretofore occurred. Jones v. State, 236
Ala. 30, 182 So. 404, 405.
FALSE RECORD. The Fair Labor Standards Act
prohibiting the making of "false records" refers
to falsification of payroll records customarily
made available to a wage and hour inspector.
United States v. Selman-Reinstein, Inc., D.C.
Minn., 52 F.Supp. 208, 209, 210.
FALSE REPRESENTATION. A representation
which is untrue, willfully made to deceive an-
other to his injury. See, also, Deceit and Fraud.
A deceitful representation, or one contrary to the fact,
made knowingly and with the design and effect of inducing
the other party to enter into the contract to which it re-
lates; a declaration of present intention, false when made,
to perform act in future, Pease & Elliman v. Wegeman,
223 App.Div. 682, 229 N.Y.S. 398, 400; a representation
known to be false by person making it, or made without
knowledge as a positive statement of known fact upon
which another relied and acted, Platte Valley Bank v.
Lemke, 141 Neb. 218, 3 N.W.2d 396, 399; a representation
of what is true, which nevertheless creates an impression
which is false. Newark Trust Co. v. Lackawanna Inv. Co.,
88 N.J.Eq. 541, 103 A. 168, 169; McClellan v. Tobin, Ind.,
219 Ind. 563, 39 N.E.2d 772, 774; an assertion of knowledge
which in fact one does not have, Tone v. Halsey, Stuart &
Co., 286 Ill.App. 169, 3 N.E.2d 142, 147; an assertion of
something as true which one does not know to be true,
Hargrove v. Henderson, 108 Cal.App. 667, 292 P. 148; such
representations as will deceive persons of ordinary pru-
dence. Union Central Life Ins. Co. v. Kerron, 128 Or. 70,
264 P. 453, 455; Holmberg v. Prudential Savings & Loan
Ass' n, 130 Or. 1, 278 P. 943, 945.
A "false representation" may arise from any conduct
capable of being turned into a statement of fact. Bundesen
v. Lewis, 291 Ill.App. 83, 9 N.E.2d 327, 334.
A "false representation" may be made scienter, so as to
afford a right of action in damages, in any of the following
ways : (1) With actual knowledge of its falsity; (2) with-
out knowledge either of its truth or falsity; or (3) under
circumstances in which the person making it ought to have
known if he did not know of its falsity. Horton v. Tyree,
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FALSE WORDS
104 W.Va. 238, 139 S.E. 737, 738; Sebastian County Bank
v. Gann, 121 Ark. 145, 180 S.W. 754, 755.
A false representation, within Bankruptcy Act not af-
fected by discharge, must involve moral turpitude or inten-
tional wrong. Hisey v. Lewis-Gale Hospital, D.C.Va., 27
F.Supp. 20, 23.
False statements although future in form may be "false
representations" of existing facts and conditions. Nation-
al Theatre Supply Co. v. Rigney, Mo.App., 130 S.W.2d
258, 263.
To maintain an action for damages for  "false representa-
tion," the plaintiff, in substance, must allege and must
prove by a preponderance of the evidence the following ele-
ments: (1) What representation was made; (2) that it
was false; (3) that the defendant knew it was false, or else
made it without knowledge as a positive statement of
known fact; (4) that the plaintiff believed the represen-
tation to be true; (5) that the plaintiff relied on and acted
upon the representation; (6) that the plaintiff was thereby
injured; and (7) the amount of the damages. Peterson v.
Schaberg, 116 Neb. 346, 217 N.W. 586, 587.
FALSE RETURN. See Return.
FALSE STATEMENT. Under statutory provi-
sion, making it unlawful for officer or director of
corporation to make any false statement in re-
gard to corporation's financial condition, the
phrase means something more than merely un-
true or erroneous, but implies that statement is
designedly untrue and deceitful, and made with
intention to deceive person to whom false' state-
ment is made or exhibited. State v. Johnston,
149 S.C. 138, 146 S.E. 657, 660.
As used in bankruptcy statute provision concerning
discharge, these words denote or connote guilty scienter on
part of bankrupt, In re Krulewitch, D.C.N.J., 60 F.2d 1039,
1041; Wilensky v. Goodyear Tire & Rubber Co., C.C.A.
Mass., 67 F.2d 389, 390. They mean an incorrect statement
made or acquiesced in with knowledge of incorrectness or
with reckless indifference to actual facts and with no
reasonable ground to believe it correct. International Shoe
Co. v. Lewine, C.C.A.Miss., 68 F.2d 517, 518; statement
false to bankrupt's knowledge and made with fraudulent
intent, In re Johnson, D.C.Conn., 1 F.Supp. 649, 651; state-
ment knowingly false, or made recklessly without honest
belief in its truth, and with purpose to mislead or deceive,
Third Nat. Bank v. Schatten, C.C.A.Tenn., 81 F.2d 538,
540; In re Venturella, D.C.Conn., 25 F.Supp. 332. They
mean more than erroneous or untrue and import inten-
tion to deceive, Schapiro v. Tweede Footwear Corporation,
C.C.A.Pa., 131 F.2d 876, 878.
Bank's statement which gives result showing bank sub-
stantially stronger than it is in fact; constitutes "false
statement" within statute defining offense of making or
publishing false statement. Rosenberg v. State, 212 Wis.
434, 249 N.W. 541.
FALSE SWEARING. The essential elements of
"false swearing" consist in willfully, knowingly,
absolutely and falsely swearing under oath or af-
firmation on a matter concerning which a party
could legally be sworn and on oath 'administered
by one legally authorized to administer it. Smith
v. State, 66 Ga.App. 669, 19 S.E.2d 168, 169.
To constitute "false swearing", it must appear
that matter sworn to was judicially pending or
was being investigated by grand jury, or was
a subject on which accused could legally have
been sworn, or on which he was required to be
sworn. Capps v. Commonwealth, 294 Ky. 743,
172 S.W.2d 610, 611. The oath need not be taken
in a matter judicially pending or any matter ma-
terial to any point in question. Capps v. Com-
monwealth, 294 Ky. 743, 172 S.W.2d 610, 611. See,
also, Perjury.
As used in provision concerning denial of liability under
policy, means false statement willfully made with respect
to a material matter with intention of thereby deceiving
insurer, Sands v. Bankers' Fire Ins. Co., 168 Va. 645, 192
S.E, 617; false statements made knowingly and willfully,
with intent to deceive insurer concerning matter material
to insurance, Buccola v. National Fire Ins. Co. of Hartford,
Conn., 18 La.App. 353, 137 So. 346, 350; knowingly and in-
tentionally stating upon oath what is not true, or state-
ment of a fact as true, which the party does not know to
be true, Harwood v. United States Fire Ins. Co., 136 Me.
223, 7 A.2d 899, 902; knowingly and willfully false swear-
ing to deceive or mislead insurers, Young v. California Ins.
Co., 55 Idaho 682, 46 P.2d 718, 722; misstatement in proofs
of loss willfully made, Palace Cafe v. Hartford Fire Ins.
Co., C.C.A.Ind., 97 F.2d 766, 769; statements which are not
only untrue but knowingly and intentionally made with
knowledge of their untruthfulness or those statements
which are made as the truth when party did not know them
to be true and had no reasonable grounds for believing
them to be true, and statements must be made for purpose
of defrauding insurer, United States Fire Ins. Co. v. Mer-
rick, 171 Md. 476, 190 A. 335, 342; swearing knowingly
and intentionally false and not through mere mistake.
Knight v. Boston Ins. Co., 113 N.J.L. 132, 172 A. 594,  595.
"Perjury" and "false swearing" may be interchangeable.
Ray v. Times Pub. Co., Tex.Com.App., 12 S.W.2d 165, 166.
The misdemeanor committed in English law by a person
who swears falsely before any person authorized to ad-
minister an oath upon a matter of public concern, under
such circumstances that the false swearing would have
amounted to perjury if committed in a judicial proceeding;
as where a person makes a false affidavit under the bills of
sale acts. Steph.Cr.Dig. p. 84. And see O'Bryan v. State,
27 Tex.App. 339, 11 S.W. 443. In Texas, it is not necessary,
to complete the offense, that the affidavit be used for the
purpose for which it was intended. Welch v. State, 71 Tex.
Cr.R. 17, 157 S.W. 946. Under the Texas and Kentucky
statutes, however, "false swearing" is distinct from the
common-law crime of perjury; Commonwealth v. Hinkle,
177 Ky. 22, 197 S.W. 455, 456; Shipp v. State, 81 Tex.Cr.R.
328, 196 S.W. 840, 842; inasmuch as "false swearing" con-
sists in making a false oath on a subject about which the
party could legally be sworn, and before a person legally
authorized to administer the oath; Commonwealth v.
Bradshaw, 210 Ky. 405, 276 S.W. 124, 125; it not being
necessary, as in perjury, that the testimony be material;
Sullivan v. Commonwealth, 158 Ky. 536, 165 S.W. 696, 697.
FALSE TOKEN. In criminal law. A false docu-
ment or sign of the existence of a fact,—in gen-
eral used for the purpose of fraud. See 3 Term,
98; 2 Starkie, Ev. 563; 1 Bish. Cr. L. 585; People
v. Haynes, 14 Wend., N.Y., 570, 28 Am.Dec. 530;
Smith v. State, 74 Fla. 594, 77 So. 274, 276; State
v. Renick, 33 Or. 584, 56 P. 275, 44 L.R.A. 266.
A written release of fictitious claim was a "false token"
People v. Beilfuss, 59 Cal.App.2d 83, 138 P.2d 332, 339.
FALSE VERDICT. See Verdict.
FALSE WEIGHTS. False weights and measures
are such as do not comply with the standard pre-
scribed by the state or government, or with the
custom prevailing in the place and business in
which they are used.
FALSE WITNESS. One who is intentionally
rather than merely mistakenly false. State v.
Weston, 109 Or. 19, 219 P. 180, 189.
FALSE WORDS, which may be eliminated from
descriptions in wills, deeds, etc., are misdescrip-
tions of property that are not applicable to any
property owned or intended to be devised or con-
veyed. Brown v. Ray, 314 Ill. 570, 145 N.E. 676,
679; Armstrong v. Armstrong, 327 III. 85, 158
N.E. 356, 358.
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FALSEDAD
FALSEDAD. In Spanish law. Falsity; an al-
teration of the truth. Las Partidas, pt. 3, tit. 26,
1.1.
Deception; fraud. Id. pt. 3, tit. 32, 1. 21.
FALSEHOOD. A statement or assertion known
to be untrue, and intended to deceive. A willful
act or declaration contrary to the truth. Put-
nam v. Osgood, 51 N.H. 207.
The term is perhaps generally used in the second sense
here given. It is committed either by the wilful act of the
party, or by dissimulation, or by words.
Crabbe thus distinguishes between falsehood and un-
truth: "The latter is an untrue saying, and may be unin-
tentional, in which case it reflects no disgrace on the agent.
A falsehood and a lie are intentional false sayings, differ-
ing only in degree of the guilt of the offender; falsehood
being not always for the express purpose of deceiving, but
a lie always for the worst of purposes." See Rosc.Cr.Ev.
362; Deceit; Fraud; Misrepresentation.
A fabrication. Werner v. Southern Cal. Asso-
ciated Newspapers, Cal.App., 206 P.2d 952, 961.
Scotch Law
A fraudulent imitation or suppression of truth, to the
prejudice of another. Bell. "Something used and pub-
lished falsely." An old Scottish nomen juris. "Falsehood
is undoubtedly a nominate crime, so much so that Sir
George Mackenzie and our older lawyers used no other
term for the falsification of writs, and the name 'forgery'
has been of modern introduction." "If there is any dis-
tinction to be made between 'forgery' and 'falsehood,' I
would consider the latter to be more comprehensive than
the former." 2 Broun, 77, 78.
FALSELY. In a false manner, erroneously, not
truly, perfidiously or treacherously. Dombroski
v. Metropolitan Life Ins. Co., 126 N.J.L. 545, 19 A.
2d 678, 680. Knowingly affirming without prob-
able cause. Hicks v. State, 67 Ga.App. 475, 21 S.E.
2d 113, 118. See, also, False.
As applied to making or altering a writting in order to
make it forgery, implies that the paper or writing is not
genuine; that in itself it is false or counterfeit. People v.
Kramer, 352 Ill. 304, 185 N.E. 590, 591.
The use of the word falsely in a statute (against counter-
feiting) implies that there must be a fraudulent or crim-
inal intent in the act; U. S. v. King, 5 McLean 208, Fed.
Cas.No.15,535. See, also, 4 B. & C. 329; 6 Com.Dig. 58;
Stark, Cr.P1. 86.
The word "falsely", particularly in a criminal statute,
suggests something more than a mere untruth and in-
cludes perfidiously or treacherously or with intent to de-
fraud. United States v. Achtner, C.C.A.N.Y., 144 F.2d 49,
52.
Usually used in the sense of designedly untrue and de-
ceitful, and as implying an intention to perpetrate some
treachery or fraud. Fouts v. State, 113 Ohio St. 450, 149
N.E. 551, 554; State v. Merlo, 92 Or. 678, 173 P. 317, 319;
McDonald v. McNeil, 92 Vt. 356, 104 A. 337, 339; Cro.Eliz.
201; 7 D. & R. 665. But see 1 Den.C.C. 157.
FALSI CRIMEN. Fraudulent subornation or con-
cealment, with design to darken or hide the truth,
and make things appear otherwise than they are.
It is committed (1) by words, as when a witness
swears falsely; (2) by writing, as when a person
antedates a contract; (3) by deed, as selling by
false weights and measures. Wharton. See Crim-
en Falsi.
FALSIFICATION. In equity practice. The show-
ing an item in the debit of an account to be either
wholly false or in some part erroneous. 1 Story,
Eq. Jur. § 525. And see Phillips v. Belden, 2 Edw.
Ch. 23; Pit v. Cholmondeley, 2 Ves. Sr. 565; Tate
v. Gairdner, 119 Ga. 133, 46 S.E. 73; Armstrong
v. Toler, 11 Wheat., U.S., 237, 6 L.Ed. 468.
FALSIFY. To disprove; to prove to be false or
erroneous; to avoid or defeat; spoken of verdicts,
appeals, etc. Co. Litt. 104b.
To counterfeit or forge; to make something false; to
give a false appearance to anything. To make false by
mutilation or addition; to tamper with; as, to falsify a
record or document. Pou v. Ellis, 66 Fla. 358, 63 So. 721,
722.
To show, as in an accounting before a master in chan-
cery, that a charge has been inserted which is wrong; that
is, either wholly false or in some part erroneous. Pull.
Accts. 162; 1 Story, Eq.Jur. § 525. See Shores-Mueller Co.
v. Bell, 21 Ga.App. 194, 94 S.E. 83, 84; Falsification.
The word "falsify" may be used to convey two distinct
meanings-either that of being intentionally or knowingly
untrue, made with intent to defraud, or mistakenly and ac-
cidentally untrue. Washer v. Bank of America Nat. Trust
& Savings Ass'n, 21 Ca1.2d 822, 136 P.2d 297, 301.
FALSIFYING A JUDGMENT. A term some-
times used for reversing a judgment. See 4 Steph.
Com. 553.
FALSIFYING A RECORD. A high offense
against public justice, punishable in England by
24 & 25 Vict. c. 98, §§ 27, 28, and in the United
States, generally, by statute. See U. S. Rev.Stat.
§ 5394, 18 U.S.C.A. § 1506.
FALSING. In Scotch law. False making; forg-
ery. "Falsing of evidentis." 1 Pitc. Crim. Tr. pt.
1, p. 85.
Making or proving false.
FALSING OF DOOMS. In Scotch law. The
proving the injustice, falsity, or error of the doom
or sentence of a court. Tomlins; Jacob. The
reversal of a sentence or judgment; an action to
set aside a decree. Skene. Protesting against a
sentence and taking an appeal to a higher tri-
bunal. Bell, Dict.
FALSELY IMPERSONATE. To "falsely imper-
sonate" may mean to pretend to be a particular
person without lawful authority. People v. Hors
kans, 109 Colo. 177, 123 P.2d 824, 826.
FALSELY MAKE, means to make an instrument
which has no original as such and no genuine
maker whose work is copied, although in form
it may resemble a type of recognized security.
Pines v. United States, C.C.A.Iowa, 123 F.2d 825,
828.
FALSITY implies more than erroneous or untrue;
it indicates knowledge of untruth. Abercrombie
v. Hair, 185 Ga. 728, 196 S.E. 447, 451.
FALSO RETORNO BREVIUM. In old English.
law. A writ which formerly lay against the sher-
iff who had execution of process for false return-
ing of writs. Reg. Jud. 43b; Cunningham, Law
Dict.
FALSONARIUS. A forger; a counterfeiter.
I Hov. 424.
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FAMILY
FALSUM. Lat. In the civil law. A false or
forged thing; a fraudulent simulation; a fraud-
ulent counterfeit or imitation, such as a forged
signature or instrument. Also falsification, which
may be either by falsehood, concealment of the
truth, or fraudulent alteration, as by cutting out
or erasing part of a writing.
FALSUS. Lat. False; fraudulent; erroneous.
Deceitful; mistaken.
In the sense of "deceiving" or "fraudulent," it is applied
to persons in respect to their acts and conduct, as well as
to things; and in the sense of "erroneous," it is applied to
persons on the question of personal identity.
FALSUS IN UNO, FALSUS IN OMNIBUS. False
in one thing, false in everything. Commonwealth
v. Billings, 97 Mass. 406; Mercer v. Wright, 3 Wis.
645; State v. Williams, 47 N.C. 257; Dawson v.
Bertolini, 70 R.I. 325, 38 A.2d 765, 768.
The doctrine means that, if testimony of a witness on a
material issue is willfully false and given with an inten-
tion to deceive, jury may disregard all the witness' testi-
mony. Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820,
823.
The maxim deals only with weight of evidence, Metro-
politan Life Ins. Co. v. Wright, 190 Miss. 53, 199 So. 289,
290. It does not relieve jury from passing on credibility of
the whole testimony of a false swearing witness or excuse
jury from weighing the whole testimony. State v. Willard,
346 Mo. 773, 142 S.W.2d 1046, 1052. It is a mere rule of
evidence affirming a rebuttable presumption of fact, under
which the jury must consider all the evidence of the wit-
ness, other than that which is found to be false, and it is
their duty to give effect to so much of it, if any, as is
relieved from the presumption against it and found to be
true. Levine Bros. v. Mantell, 90 W.Va. 166, 111 S.E. 501,
504; Shecil v. United States, C.C.A.Wis., 226 F. 184, 187.
It is not a rule of law and false statement, State v. Stur-
chio, 127 N.J.L. 366, 22 A.2d 235, 237. It is not a rule of
the law of evidence, but is merely an aid in weighing and
sifting of evidence. Dawson v. Bertolini, 70 R.I. 325,
38 A.2d 765, 768. It is particularly applied to the testimony
of a witness who, if he is shown to have sworn falsely in
one detail, may be considered unworthy of belief as to all
the rest of his evidence. Grimes v. State, 63 Ala. 168; Wil-
son v. Coulter, 51 N.Y.S. 804, 29 App. Div. 85; White v.
Disher, 67 Cal. 402, 7 P. 826.
The rule is merely permissive and not mandatory. Bank-
ers' Health & Life Ins. Co. v. Nichols, 44 Ga.App. 536, 162
S.E. 161.
Where a party is clearly shown to have embezzled one
article of property, it is a ground of presumption that he
may have embezzled others also. The Boston, 1 Sumn. 328,
356, Fed.Cas.No.1,673; The Santissima Trinidad, 7 Wheat.
339, 5 L. Ed. 454.
FAMA. Lat. Fame; character, reputation; re-
port of common opinion.
FAMA, FIDES ET OCULUS NON PATIUNTUR
LUDUM. 3 Bulst. 226. Fame, faith, and eyesight
do not suffer a cheat.
FAMA QU1E SUSPICIONEM INDUCIT, ORIRI
DEBET APUD BONOS ET GRAVES, NON QUID-
EM MALEVOLOS ET MALEDICOS, SED PRO-
VIDAS ET FIDE DIGNAS PERSONAS, NON
SEMEL SED SIEPIUS, QUIA CLAMOR MINUIT
ET DEFAMATIO MANIFESTAT. 2 Inst. 52. Re-
port, which induces suspicion, ought to arise from
good and grave men; not, indeed, from malevo-
lent and malicious men, but from cautious and
credible persons; not only once, but frequently;
for clamor diminishes, and defamation manifests.
FAMACIDE. A killer of reputation; a slanderer.
FAMILIA.
Old English Law. A household; the body of
household servants; a quantity of land, otherwise
called "mansa," sufficient to maintain one family.
Du Cange; Cowell; Cunningham, Law Dict.;
Creasy, Church Hist.
Roman Law. A household; a family. On the
composition of the Roman family, see Agnati;
Cognati; and see Mackeld. Rom. Law, § 144.
Family right; the right or status of being the head of a
family, or of exercising the patria potestas over others.
This could belong only to a Roman citizen who was a "man
in his own right," (homo sui juris.) Mackeld.Rom.Law, §§
133, 144.
Spanish Law. A family, which might consist of
domestics or servants. It seems that a single per-
son owning negroes was the "head of a family,"
within the meaning of the colonization laws of
Coahuila and Texas. State v. Sullivan, 9 Tex. 156.
FAMILLE EMPTOR. In Roman law. An inter-
mediate person who purchased the aggregate in-
heritance when sold per ces et libram, in the pro-
cess of making a will under the Twelve Tables.
This purchaser was merely a man of straw, trans-
mitting the inheritance to the hceres proper.
Brown.
FAMILLE ERCISCUNDIE. In Roman law. An
action for the partition of the aggregate succes-
sion of a familia, where that devolved upon co-
hceredes. It was also applicable to enforce a con-
tribution towards the necessary expenses incurred
on the familia. See Mackeld. Rom. Law, § 499;
Stair, Inst. 1. 1, tit. 7, § 15.
FAMILIAR. The word is equivalent to the word
"know." Smiley v. Lenane, 363 Ill. 66, 1 N.E.2d
213, 216.
FAMILIARES REGIS. Persons of the king's
household. The ancient title of the "six clerks"
of chancery in England. Crabb, Com. Law, 184;
2 Reeve, Eng. Law, 249, 251.
FAMILIARITY. Acquaintance expresses less than
"familiarity"; familiarity less than intimacy. Ac-
quaintance springs from occasional intercourse,
familiarity from daily intercourse, intimacy from
unreserved intercourse; acquaintance, having
some knowledge, familiarity, from long habit, in-
timacy, by close connection. Atkins Corporation
v. Tourny, 6 Cal.2d 206, 57 P.2d 480, 483.
FAMILY. The word is used to designate many
relationships. Collins v. Northwest Casualty Co.,
180 Wash. 347, 39 P.2d 986, 989, 97 A.L.R. 1235;
State ex rel. Kemp v. Arnold, 234 Mo. 154, 113 S.
W.2d 143, 146.
In broad or primary sense "family" means:
a collective body of any two persons living to-
gether in one house as their common home for
the time; In re Barnes' Estate, 149 Misc. 149, 267
N.Y.S. 634; a collective body of persons, living
together in one home, in a permanent and domes-
tic character, under one head or management,
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FAMILY
State ex rel. Kemp v. Arnold, 234 Mo. 154, 113 S.
W.2d 143, 146; a collective body of persons who
live in one house and under one head or manage-
ment, Fratellanza Italiana v. Nugnes, 114 N.J.Eq.
185, 168 A. 589, 590; a group of blood-relatives;
all the relations who descend from a common an-
cestor, or who spring from a common root, Civil
Code La. art. 3556, no. 12; 9 Ves. 323; a group of
kindred persons, Hartley v. Bohrer, 52 Idaho 72,
11 P.2d 616, 618; husband and wife and their
children. Franklin Fire Ins. Co. v. Shadid, Tex.
Com.App., 68 S.W.2d 1030, 1032.
In most common use, the word implies father,
mother and children, immediate blood relatives.
Collins v. Northwest Casualty Co., 180 Wash. 347,
39 P.2d 986, 989, 97 A.L.R. 1235.
In narrow or restricted sense "family" means:
a father, mother, and children, whether living
together or not, Higgins v. Safe Deposit & Trust
Co. of Baltimore, 127 Md. 171, 96 A. 322, 323.,
group of parents and children founded on prin-
ciple of monogamy, In re Schmidt's Estate, 159
Misc. 373, 289 N.Y.S. 247, 250; husband and wife
and their children, State ex rel. Kemp v. Arnold,
234 Mo.App. 154, 113 S.W.2d 143, 146.
In ordinary conversation, the word is descrip-
tive of a person's wife and children. Adams v.
Carrie F. Wright Hospital, 82 N.H. 260, 132 A.
525, 526.
In restricted sense, the word "family" may be
used interchangeably with household. Collins v.
Northwest Casualty Co., 180 Wash. 347, 39 P.2d
986, 989, 97 A.L.R. 1235.
In secondary meaning, "family" means those
who are of the same lineage, or descend from one
common progenitor. Fratellanza Italiana v. Nug-
nes, 114 N.J.Eq. 185, 168 A. 589, 590.
The word conveys the notion of some relationship, blood
or otherwise. Collins v. Northwest Casualty Co., 180 Wash.
347, 39 P.2d 986, 989, 97 A.L.R. 1235.
The word may mean: a body of persons who live in one
house and under one head or manager, Lumbermens Mut.
Casualty Co. v. Pulsifer, D.C.Me., 41 F.Supp. 249, 252;
Collins v. Northwest Casualty Co. 180 Wash. 347, 39 P.2d
986, 989, 97 A.L.R. 1235. A collection of persons living
under a common roof, or constituting a domestic circle, In
re Keegan's Estate, Sur., 37 N.Y.S.2d 368, 370, 371. A col-
lective body of any two persons living together in one
house as their common home for the time, In re Barnes'
Estate, 267 N.Y.S. 634, 149 Misc. 149; a collective body of
persons, consisting of parents or children, or other rela-
tives, domestics, or servants, residing together in one house
or on the same premises, Sullivan v. Walburn, 9 N.J.Misc.
280, 154 A. 617, 619. A collective body of persons living
together in one house or within the curtilage. Sullivan v.
Walburn, 9 N.J.Misc. 280, 154 A. 617, 619. A collective body
of persons who form one household under one head and
one domestic government. Sullivan v. Walburn, 9 N.J.Misc.
280, 154 A. 617, 619. A collective body of persons who form
one household under one head and one domestic govern-
ment and who have reciprocal natural and moral duties to
support and care tor one another, Krug v. Mills, 159 Md.
670, 152 A. 493, 495; Hartley v. Bohrer, 52 Idaho 72, 11 P.2d
616, 618. A collective body of persons who live in one
home under one head or management. Dalton v. Poinsett,
Mo.App., 164 S.W.2d 124, 128; Vaughn v. American Alliance
Ins. Co. of New York, 138 Kan. 731, 27 P.2d 212; a collec-
tive body of persons who live in one house or within the
same curtilage and under one head or management
(thereby including domestic servants, lodgers, boarders,
guests, etc.). Jarboe v. Jarboe, 106 Mo.App. 459, 79 S. W.
1162; Wilson v. Else, 204 Iowa 857, 216 N.W. 33, 37; City
of Mexico v. Gray, 203 Mo.App. 547, 219 S.W. 707, 709; Wil-
son v. Cochran, 31 Tex. 680, 98 Am.Dec. 553; a group, com-
prising immediate kindred, consisting of the parents and
their children, whether actually living together or not,
Uden v. B. F. Goodrich Co., 58 Ohio App. 151, 16 N.E.2d
277, 279; a group of blood relatives; a group of kindred
persons, Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616, 618;
a household. Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A.
617, 619; a household composed of parents or children, or
other relatives or domestics and servants, Sullivan v. Wal-
burn, 9 N.J.Misc. 280, 154 A. 617, 619; a small select corps
attached to an army chief, Boston-Edison Protective Ass'n
v. Paulist Fathers, 306 Mich. 253, 10 N.W.2d 847, 849, 148
A.L.R. 364; a whole sect, such as Shakers, Boston-Edison
Protective Ass'n v. Paulist Fathers, 306 Mich. 253, 10
N.W.2d 847, 849, 148 A.L.R. 364; all members of the house-
hold living under the authority of the head thereof, Sulli-
van v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619; all per-
sons of the blood of a common ancestor, Collins v. North-
west Casualty Co., 180 Wash. 347, 39 P.2d 986, 989, 97
A.L.R. 1235; all the relations who descend from a common
ancestor or who spring from a common root; all who are
descended from a not too distant common progenitor, In
re Lund's Estate, 26 Ca1.2d 472, 159 P.2d 643, 655; an entire
household. Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A.
617, 619; any group of persons closely related by blood, In
re Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc. 373;
any group of persons constituting a distinct domestic body,
Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619; or
socf11 body, Boston-Edison Protective Ass'n v. Paulist
Fathers, 306 Mich. 253, 10 N.W.2d 847, 849, 148 A.L.R. 364;
group of parents and children founded on principles of mo-
nogamy, In re Schmidt's Estate, 289 N.Y.S. 247, 250, 159
Misc. 373; immediate domestic circle of a particular per-
son, Collins v. Northwest Casualty Co., 180 Wash. 347, 39 P.
2d 986, 989, 97 A.L.R. 1235; immediate members of one's
household, Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503,
506; members of the domestic circle, Sullivan v. Walburn,
9 N.J.Misc. 280, 154 A: 617, 619; one or more persons living
together in same house who are supported by one in whole
or in part and are dependent on him therefore, where . he is
under natural or moral obligation to render such support,
Umbarger v. State Farm Mut. Automobile Ins. Co., 218
Iowa 203, 254 N.W. 87; the genealogical stock from which
a man and those related to him by blood have sprung,
Albright v. Albright, 116 Ohio St. 668, 157 N.E. 760, 764;
the personnel of the home. Sullivan v. Walburn, 9
N.J.Misc. 280, 154 A. 617, 619; those members of the house-
hold who are dependent on the householder to whom he
owes some duty, Cheshire v. Burlington, 31 Conn. 326;
those who are of the same lineage, or descend from one
common progenitor, Fratellanza Italiana v. Nugnes, 114
N.J.Eq. 185, 168 A. 589, 590; those who live in one house,
In re Lund's Estate, 26 Ca1.2d 472, 159 P.2d 643, 655; those
who live in same household subject to general management
and control of the head thereof, McGee v. Crawford, 205
N.C. 318, 171 S.E. 326, 327; those who live with the pater
familias, Vaughn v. American Alliance Ins. Co. of New
York, 138 Kan. 731, 27 P.2d 212; Indemnity Ins. Co. of
North America v. Sanders, 169 Okl. 378, 36 P.2d 271, 273;
those whom it is the natural or moral duty of one to sup-
port, or who are dependent on him for support, Finn v.
Eminent Household of Columbia Woodmen, 163 Ky. 187,
173 S.W. 349, 350.
The word may mean, include or embrace an adult child,
Watson v. Burley, 105 W.Va. 416, 143 S.E. 95, 96, 64 A.L.R.
839; Yadon v. Yadon, 202 Ark. 634, 151 S.W.2d 969, 970;
aunts, In re Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc.
373; blood relatives, Boston-Edison Protective Ass'n v.
Paulist Fathers, 306 Mich. 253, 10 N.W.2d 847, 849; In re
Keegan's Estate, Sur., 37 N.Y.S.2d 368, 370, 371; children,
In re Dooling's Will, 285 N.Y.S. 603, 609, 158 Misc. 333; In
re Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc. 373;
cousins, In re Schmidt's Estate, 289 N.Y.S. 247, 250, 159
Misc. 373; father and child, Hinds v. Buck, 177 Tenn. 444,
150 S.W.2d 1071, 1072; father, mother, and all children,
wherever they may reside, Barrett v. Commercial Standard
Ins. Co., Tex.Civ.App., 145 S.W.2d 315, 318; group of par-
ents and children founded on principle of monogamy, In re
Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc. 373; hus-
band and wife, In re De Nisson's Guardianship, 197 Wash.
265, 84 P.2d 1024, 1027, 1028; Boston-Edison Prctective
Ass'n v. Paulist Fathers, 306 Mich. 253, 10 N.W.2d 847, 849;
Hinds v. Buck, 177 Tenn. 444, 150 S.W.2d 1071, 1072; hus-
band and wife and their children, Franklin Fire Ins. Co.
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FAMILY
v. Shadid, Tex.Com.App., 68 S.W.2d 1030, 1032; State ex
rel. Kemp v. Arnold, 234 Mo.App. 154, 113 S.W.2d 143, 146;
husband or wife and children. In re Keegan's Estate, Sur.,
37 N.Y.S.2d 368, 370, 371; parents, In re Schmidt's Estate,
289 N.Y.S. 247, 250, 159 Misc. 373; parents and children, In
re Schmidt's Estate, 289 N.Y.S. 247, 250, 159 Misc. 373;
Uden v. B. F. Goodrich Co., 58 Ohio App. 151, 16 N.E.2d
277, 279; parents, children, and servants, and, as the case
may be, lodgers or boarders, Cleaves v. Funk, D.C.Okl.,
3 F.Supp. 804, 805; In re Schmidt's Estate, 289 N.Y.S. 247,
250, 159 Misc. 373; parents or children, or other relatives,
or domestics and servants, Sullivan v. Walburn, 9 N.J.Misc.
280, 154 A. 617, 619; parents with their children whether
they dwell together or not, In re Schmidt's Estate, 289
N.Y.S. 247, 250, 159 Misc. 373; Higgins v. Safe Deposit &
Trust Co. of Baltimore, 127 Md. 171, 96 A. 322, 323; spouse
and the issue of designated person, and no other persons,
Restatement, Property, § 293; uncles, In re Schmidt's
Estate, 289 N.Y.S. 247, 250, 159 Misc. 373.
Sisters of a religious order who were employed in hos-
pital and lived together in a community as members of a
"family". Goss v. Klipfel, 112 Colo. 87, 146 P.2d 217, 218.
Son-in-law is not a member of father-in-law's family, nor
is his daughter, after she becomes son-in-law's wife. Bry-
ant v. Keen, 43 Ga.App. 251, 158 S.E. 445, 446.
Widow who lived with her children in her father-in-law's
house and received board for herself and children for keep-
ing house was member of father-in-law's "family". Ho111-
baugh v. School Dist. No. 89, 131 Neb. 727, 269 N.W. 819,
820.
Allowances
Where marriage between decedent and his widow
occurred years before decedent's death, parties lived
together for about three weeks and never resumed their
relationship as husband and wife, widow was not entitled
to statutory allowance for the benefit of decedent's family.
In re Feciuch's Estate, Sur., 26 N.Y.S.2d 390, 391.
Widow constitutes "family" within statute providing for
allowance for maintenance from husband's estate. In re
Hilleware's Estate, 159 Wash. 580, 294 P. 230, 231.
Word "family" in code provision authorizing family
allowance where property set apart is insufficient for sup-
port of widow and children, does not include husband, Hills
v. Superior Court in and for Los Angeles County, 207 Cal.
666, 279 P. 805, 806, 65 A.L.R. 266.
Beneficial and fraternal associations
As used in beneficial association's by-law providing that
death benefit should be payable to member's family, the
word means next of kin, including widow. Fratellanza
Italiana v. Nugnes, 114 N.J.Eq. 185, 168 A. 589, 590.
As used in statutes or charters relating to who may
become beneficiaries in fraternal associations, the word is
not to receive a restrictive construction, and it may include
stepchildren. Brotherhood of Locomotive Firemen and
Enginemen v. Hogan, D.C.Minn., 5 F.Supp. 598, 603.
When used in constitution of benefit society, declaring its
purpose among others as that of aiding the families of
members, the word means such persons as habitually reside
under one roof and form one domestic circle, or such per-
sons as are dependent on each other for support or among
whom there is legal or equitable obligation to furnish sup-
port and in its widest scope it would include all descendants
of a common progenitor, Logan v. St. Louis Police Relief
Ass'n, Mo.App., 133 S.W.2d 1048, 1049, 1050.
Compensation Law
A collective body of persons who live in one house and
under one head or management is the significance ordi-
narily attributed to the word "family". Roney's Case, 316
Mass. 732, 56 N.E.2d 859, 864, 866.
Deceased adult son was a member of his parents' "fam-
ily" though at time of his death he lived apart from his
parents but contributed to support of parents. Baker v.
Western Power & Light Co., 147 Kan. 571, 78 P.2d 36, 40.
Persons related by kinship or marriage, though not living
in same household, may be members of "family". Moore's
Case, 294 Mass. 557, 3 N.E.2d 5.
Descent and descendants
As used in act changing descent as between relatives of
half blood, "family" comprehends only the descendants
of ancestor, those who have his blood running in their
veins; in that sense is nearly if not quite of same import
as the word "issue." Ryder v. Myers, 113 N.J.Eq. 360, 167
A. 22, 24.
The word "family" may mean: all descendants of a
common progenitor, Logan v. St. Louis Police Relief Ass'n,
Mo.App., 133 S.W.2d 1048, 1049, 1050; In re Lund 's Estate,
26 Ca1.2d 472, 159 P.2d 643, 645; those who are of the same
lineage, or descend from one common progenitor. Fratel-
lanza Italiana v. Nugnes, 114 N.J.Eq. 185, 168 A. 589, 590.
Homestead and exemption laws
A "family" is a collection of persons living together
under one head, Holsomback v. Slaughter, 177 Miss. 553,
171 So. 542. 543; a collection of persons living together,
where there is an obligation, legal or moral, on head of the
house to support the others or some of them, Logue v. Von
Almen, 379 Ill. 208, 40 N.E.2d 73, 80, 140 A.L.R. 251; a col-
lective body of persons, consisting of parents or children, or
other relatives, domestics, or servants, residing together
in one house or upon the same premises, and person to be
member of family must be member in good faith, Lobban
v. Vander Vries Realty & Mortgage Co., 48 Ariz. 180, 60
P.2d 933, 935; a collective body of persons who live in one
house and under one head or manager, Hurt v. Perryman,
173 Tenn. 646, 122 S.W.2d 426, 427; a group of two or more
persons dwelling together under one head, and which can-
not consist of but one person, Zuniga v. Evans, 87 Utah,
198, 48 P.2d 513, 524, 101 A.L.R. 532.
A husband dying leaving a wife from whom he was not
judicially separated left a "family". In re Zalewski's
Estate, 30 N.Y.S.2d 658, 664, 177 Misc. 384.
An unmarried adult daughter who remains continuously
with the "family" is member. Reconstruction Finance
Corporation v. Burgess, Tex.Civ.App., 155 S.W.2d 977, 980.
Constitution and statute exempting homestead in each
"head of a family" include not only a father, or husband,
in his lifetime, but a widow, and after death of both, any
minor children. Whitfield v. People's Union Bank & Trust
Co., 168 Tenn. 24, 73 S.W.2d 690, 691.
"Family", continues to exist so long as widow lives and
remains widow. Miers v. Miers, 160 Miss. 746, 133 So. 133,
134.
Husband who, after wife had abandoned him and remar-
ried without obtaining divorce, purchased release of wife's
right in his estate and abandoned her held not entitled to
exemption provided on death of person leaving family. In
re Schmidt's Estate, 287 N.Y.S. 44, 47, 247 App.Div. 505.
Husband, who had lived apart from wife prior to her
death and had not contributed to her support held entitled
to exemption provided on death of person having family.
In re Gluer's Will, 278 N.Y.S. 994, 155 Misc. 41.
Persons who may constitute a family include: husband
and wife. Bigelow v. Dunphe, 144 Fla. 330, 198 So. 13;
husband and wife living together, Miller v. Finegan, 26 Fla.
29, 7 So. 140, 6 L.R.A. 813; Oppenheim v. Myers, 99 Va.
582, 39 S.E. 218; Dye v. Cooke, 88 Tenn. 275, 12 S.W. 631,
17 Am.St.Rep. 882; husband and wife so long as marriage
continues in existence, In re Brown's Will, 274 N.Y.S. 924,
153 Misc. 282; mother and children living under father's
authority, Washington Bank & Trust Co. v. Carrier, 178 La.
902, 152 So. 560, 561; school teacher on whom moral obliga-
tion rested to support and care for her sister. Standard
Paving Co. v. Tolson, Tex.Civ.App., 86 S.W.2d 789, 791.
Sister, owning property, and semi-invalid brother, who was
cared for and supported by sister, and younger sister, who
contributed to household expenses. Real Estate Land Title
& Trust Co. v. Street, Tex.Civ.App., 85 S.W.2d 341, 342;
stepchildren and stepfather living together after step-
father's divorce from children's mother, Smith Bros. v.
Lucas, Tex.Com.App., 26 S.W.2d 1055, 1056. With particu-
lar reference to homestead laws, one parent and his or her
children; Carle v. Bamberger, 53 Okl. 777, 158 P. 599, 600;
Solnar v. Solnar, 205 Iowa, 701, 216 N.W. 288, 290; and
even a widow or widower, though without children; Cole-
man v. Bosworth, 180 Iowit, 975, 164 N.W. 238, 240; may
constitute a "family." See, also, In re Hooper's Estate,
117 Wash. 463, 201 P. 740, 742.
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FAMILY
Test of whether husband has a "family" within statute
providing for exemptions to widow if husband dies having
a family cannot be measured by number of years husband
and wife lived apart nor by distance of miles separating
them. In re Brown's Will, 274 N.Y.S. 924, 153 Misc. 282.
To constitute family, status must be social and head of
family must be legally or morally obligated to support
other members, who must be dependent on such support.
United Fidelity Life Ins. Co. v. Plainview Building & Loan
Ass'n, Tex.Civ.App., 81 S.W.2d 1092, 1093; Lobban v. Van-
der Vries Realty & Mortgage Co., 48 Ariz. 180, 60 P.2d 933,
935.
To constitute family there must be one whom law desig-
nates or recognizes as head of family who by natural ties
or by legal or moral obligation is under duty to support
others of the household. Owens v. Altsheller & Co., 263
Ky. 727, 93 S.W.2d 844, 846.
To constitute persons living with another in same house
a "family", it must appear that they are being supported
by that other in whole or in part, and are dependent on
him therefor, and that he is under a natural or moral
obligation to render such support. Poffinbarger v. Adminis-
trator of Poffinbarger's Estate, 206 Iowa 961, 221 N.W. 550.
Where relatives live together because such arrangement
is more convenient or economical, or for reasons of friend-
ship or affection, such relation does not constitute them
"family". Rock Island Bank & Trust Co. v. Lamont, 361
Ill. 432, 198 N.E. 430.
Household
A "family" is a collective body of persons who form
one household under one head and one domestic govern-
ment, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619;
a collective body of persons forming one household under
one head and domestic government, having reciprocal,
natural and moral duties to care for one another. Hartley
v. Bohrer, 52 Idaho 72, 11 P.2d 616, 618; Krug v. Mills, 159
Md. 670, 152 A. 493, 495; a household, Sullivan v. Wal-
burn, 9 N.J.Misc. 280, 154 A. 617, 619; a household com-
posed of parents or children or other relatives, or domestics
and servants, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A.
617, 619; all members of the household living together
under the authority of the head thereof, Sullivan v. Wal-
burn, 9 N.J.Misc. 280, 154 A. 617, 619; all persons who
dwell together under a common head as a household, Hoff
v. Hoff, 132 Pa.Super. 431, 1 A.2d 506, 508; an entire House-
hold, Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619;
the immediate members of one's household, as wife, chil-
dren, brothers, and sisters or father and mother. Niemes
v. Niemes, 97 Ohio St. 145, 119 N.E. 503, 506; those who
live in same household subject to general management and
control of the head thereof, McGee v. Crawford, 205 N.C.
318, 171 S.E. 326, 327.
Family and household are substantially synonymous,
Umbarger v. State Farm Mut. Automobile Ins. Co., 218
Iowa 203, 254 N.W. 87; the words are often used inter-
changeably, Indemnity Ins. Co. of North America v.
Sanders, 169 Okl. 378, 36 P.2d 271, 273 ; Brovdy v. Jones &
Laughlin Steel Corporation, 145 Pa.Super. 602, 21 A.2d
437, 438; while in a restricted sense the word "family"
may be used interchangeably with "household," there is a
difference in the ideas suggested by the two words, Collins
v. Northwest Casualty Co., 180 Wash. 347, 39 P.2d 986, 989,
97 A.L.R. 1235.
Insane Persons
Under statute providing for support of family of insane
person out of his estate, "family" includes those whom in-
sane person under normal circumstances would be under
legal duty to support, such as wife and children, and under
some circumstances may include others. Woman who had
become insane person's stepmother when he was infant and
had cared for him during his infancy and to whose support
he had contributed during his minority and until he joined
Army held member of his "family" so as to be entitled to
support. In re Freeman's Estate, 171 Miss. 147, 157 So.
253.
Insurance
Accident policy condition that insurer should have op-
portunity to be present at autopsy performed with con-
sent of insured's "family" held to apply to person who, as
surviving wife or husband, or next of kin, had right of
possession of body. If insured left no wife, and sister
was nearest kin, sister held "family" within such condi-
tion. Sheehan v. Commercial Travelers' Mut. Acc. Ass'n,
283 Mass. 543, 186 N.E. 627, 631, 88 A.L.R. 975.
Pauper
Duty of town to support "family" of pauper includes
only those persons whom head of family is bound by
law to support. Town of St. Johnsbury v. Town of Sutton,
102 Vt. 451, 150 A. 133, 135.
Reservation lands
Words "family" and "heirs," within statute providing
for holding of reservation lands by Seneca Indians, mean
family and heirs which Indians themselves recognize.
Woodin v. Seeley, 141 Misc. 207, 252 N.Y.S. 818, 826.
Servants
A family is a body of persons who live in one household
under one head or management; a household including
parents, children and servants, and, as the case may be,
lodgers or boarders. Cleaves v. Funk, D.C.Okl., 3 F.Supp.
804, 805.
Domestic servants, when living in establishment, are in-
cluded in term "family" for purposes of serving summons.
Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619.
Service of Process
A domestic servant may be included in term "family."
Sullivan v. Walburn, 9 N.J.Misc. 280, 154 A. 617, 619.
Defendant's mother, who maintained permanent home,
but who usually visited in defendant's home during winter
months, held not a member of defendant's "family."
Cleaves v. Funk, C.C.A.Okl., 76 F.2d 828, 829.
The word "family", as used in acts regulating service of
process, is given its restricted meaning and held to include
only a father, a mother, and their children, but the rela-
tionship between the person receiving a 'copy of the sum-
mons and the person on whom service is attempted must
be more confidential and intimate than in most employer
and employee or master and servant relationships in order
that the receipt by the former may be deemed valid serv-
ice on the latter. Moore v. Kasishke, 189 Okl. 336, 117 P.2d
113, 115, 136 A.L.R. 1502.
Support of persons
A "family" is a collection of persons living together un-
der one head, under such circumstances or conditions that
the head is under a legal or moral obligation to support
the other members, and the other members are dependent
upon him for support, Hurt v. Perryman, 173 Tenn. 646, 122
S.W.2d 426, 427; those entitled by law to look to person
for support and protection, In re Fulton's Estate, 15 Cal.
App.2d 202, 59 P.2d 508, 510; those members of the house-
hold who are dependent on the householder to whom he
owes some duty, Brokaw v. Ogle, 170 Ill. 115, 48 N.E. 394;
those whom it is the natural or moral duty of one to sup-
port, or who are dependent on him for support, Finn v.
Eminent Household of Columbia Woodmen, 163 Ky. 187, 173
S. W. 349, 350.
Bankrupt whose minor children were living separately
from him in custody of his divorced wife held person hav-
ing "family dependent on him for support". In re Mc-
Farland, D.C.Wash., 49 F.2d 342, 343.
"Family," within statute imposing liability for articles
going to support of "family," held to include wife as well
as children. Baledes v. Greenbaum, 112 Conn. 64, 151 A.
333, 334.
He upon whom law imposes duty to support growing out
of status and not out of contract, and persons to whom he
owes this duty if dwelling together in a domestic establish-
ment constitute a "family" of which he is the head.
Owens v. Altsheller & Co., 263 Ky. 727, 93 S.W.2d 844, 846.
Householder's sister and her husband living with house-
holder and dependent upon him may constitute "family".
Rock Island Bank & Trust Co. v. Lamont, 361 III. 432, 198
N.E. 430.
Moral duty to support arising from ties of blood or pos-
sibly other similar relations will be sufficient to support
claim that one is head of a family. Owens v. Altsheller &
Co., 263 Ky. 727, 93 S.W.2d 844, 846.
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FAMILY CAR DOCTRINE
Sister on whom moral obligation rested to support her
sister and such sister constituted "family." Standard Pav-
ing Co. v. Tolson, Tex.Civ.App., 86 S.W.2d 789, 791.
To constitute "family" within homestead or exemption
provision there must be legal or moral or natural obliga-
tion of one to support other members and corresponding de-
pendence of others. L. E. Whitham & Co. v. Briggs' Es-
tate, Tex.Com.App., 58 S.W.2d 49; Lobban v. Vander Vries
Realty & Mortgage Co., 48 Ariz. 180, 60 P.2d 933, 935;
Wineblood v. Payne, 129 Okl. 103, 263 P. 669, 671.
Town of residence of head of "family" held not liable
to reimburse another town for support furnished step-
children. Town of St. Johnsbury v. Town of Sutton, 102
Vt. 451, 150 A. 133, 135.
Wills
As respects construction of will, the word "family" de-
notes a group of persons related to each other by marriage
or blood living together under a single roof and compris-
ing a household whose head is usually the father or hus-
band, but the word is not one of inflexible meaning and
its significance to a large extent depends upon the context
and the purpose for which it is employed. The word "fam-
ily" includes those who have left father's home and have
married and established their own homes when context
and purpose indicate such significance should be attributed
to the word. Magill v. Magill, 317 Mass. 89, 56 N.E.2d 892,
894, 896, 154 A.L.R. 1406.
Testamentary precatory trust created in favor of any of
testatrix' "family" held to comprehend those who would
take under statute of distribution. Ryder v. Myers, 113 N.
J.Eq. 360, 167 A. 22, 24.
Testatrix in creating trust for benefit of granddaughter
during her life and providing that upon granddaughter's
death without issue principal should go to then living
members of granddaughter's father's "family" did not use
word family to designate those who comprised her son's
household, where testatrix knew when she executed will
that son was dead and that his widow and daughter made
their homes with testatrix and his other children lived
separate from each other. Magill v. Magill, 317 Mass. 89,
56 N.E.2d 892, 894, 896, 154 A.L.R. 1406.
The use of the word "family" disclosed a testamentary
intent to make a gift to a class including those who would
have been distributees of the deceased brothers of testatrix
had such brothers died as of the date of death of testatrix
and included therein the widows of such brothers. In re
Keegan's Estate, Sur., 37 N.Y.S.2d 368, 370, 371.
Under will of widow, providing that "I wish my hus-
band's family to share and share alike the remainder of
my property," the word "family" is equivalent to "heirs,"
In re McCrum's Estate, 97 Cal.App. 576, 275 P. 971, 972.
When the word "family" is used to designate those en-
titled to receive a legacy, the intended meaning of the
word depends upon the context of the will and upon a
showing as to whom were the objects of the testator's
bounty by reason of kinship or friendship. Where a legacy
was to a class, consisting of family of testatrix' deceased
brother who was survived by widow and three children,
each of which children maintained separate households,
"family" included widow and three children. In re Kee-
gan's Estate, Sur., 37 N.Y.S.2d 368, 370, 371.
Where testatrix created trust for benefit of granddaugh-
ter during her life and, knowing that one of granddaugh-
ter's brothers was already dead, provided that any issue
granddaughter might leave should share equally with then
living members of granddaughter's father's "family" in
division of principal of trust and thereafter upon death of
another grandson leaving a widow and two infant children
executed a codicil giving grandson's legacy under another
provision of will to his widow, word "family" was used to
designate lineal descendants of granddaughter's father
where such construction was consistent with provisions of
the will and carried out intention of testatrix. Magill v.
Magill, 317 Mass. 89, 56 N.E.2d 892, 894, 896, 154 A.L.R.
1406.
FAMILY ARRANGEMENT. A term denoting an.
agreement between a father and his children, or
between the heirs of a deceased father, to dispose
of property, or to partition it in a different man-
ner than that which would result if the law alone
directed it, or to divide up property without ad-
ministration. In these cases, frequently, the mere
relation of the parties will give effect to bargains
otherwise without adequate consideration. 1 Chit.
Pr. 67; 1 Turn. & R. 13; Boyd v. Robinson, 93
Tenn. 1, 23 S.W. 72; De Hatre v. De Hatre, 50 Mo.
App. 1.
FAMILY AUTOMOBILE DOCTRINE. The doc-
trine is that one who owns and maintains an au-
tomobile for the general use of his household
makes use of automobile for such purposes a part
of his business so that any member using automo-
bile for those purposes under general authority to
do so becomes his representative, for whose negli-
gence he is responsible. Durso v. A. D. Cozzolino,
Inc., 128 Conn. 24, 20 A.2d 392, 394.
It is an extension of the principle of respon-
deat superior to the relation created by operation
of family use automobile. Buss v. Wachsmith,
190 Wash. 673, 70 P.2d 417, 421. See, also, Family
Car Doctrine and Family Purpose Doctrine.
It is based on theory that members of family were en-
gaged in a joint enterprise or that child was agent of par-
ents. Paulson v. McMillan, 8 Wash.2d 295, 111 P.2d 983,
989.
If an automobile is owned and maintained by a family
corporation for general use of a family, such as that of
corporation's manager and one of its principal stockholders,
corporation may be held liable under the "family automo-
bile doctrine" to third parties. Durso v. A. D. Cozzolino,
Inc., 128 Conn. 24, 20 A.2d 392, 394.
FAMILY BIBLE. A Bible containing a record of
the births, marriages, and deaths of the members
of a family. As to its admissibility in evidence,
see Whart. Ev. § 219; Tayl. Ev. 572; 1 Greenl. Ev.
§ 104; L. R. 1 Ex. 255; Greenleaf v. R. Co., 30
Iowa, 301; Southern Life Ins. Co. v. Wilkinson, 53
Ga. 535; Weaver v. Leiman, 52 Md. 709.
FAMILY CAR. Automobile used to send owner's
children to school was "family car." Coleman v.
Rollo, Tex.Civ.App., 50 S.W.2d 391, 392.
FAMILY CAR DOCTRINE. The doctrine rests
upon the basis that the automobile is furnished
by the husband in his individual capacity and as
common-law head of the family for the use of the
family, and not as the agent of the community.
Donn v. Kunz, 52 Ariz. 219, 79 P.2d 965. It rests
on theory that operator is husband's agent and
runs automobile in husband's "business," Hart v.
Hogan, 173 Wash. 598, 24 P.2d 99; that wife is
husband's agent in carrying out one of the pur-
poses for which the automobile is purchased and
owned, Moffitt v. Krueger, 11 Wash.2d 658, 120 P.
2d 512, 513.
Under the doctrine, a father furnishing automo-
bile for pleasure and convenience of family makes
the use of automobile by family his business and
any member of family driving automobile with
father's express or implied consent is the father's
agent and the father is liable for the member's
negligence. Donn v. Kunz, 52 Ariz. 219, 79 P.2d
965, 966, 967.
See, alsp, Family Automobile Doctrine and Fam-
ily Purpose Doctrine.
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FAMILY CAR DOCTRINE
The person upon whom it is sought to fasten liability
under the doctrine must own, provide, or maintain an au-
tomobile for the general use, pleasure, and convenience of
the family. Liability under the doctrine is not confined
to owner or driver. It depends upon control and use. A
widow, wife, or mother may be liable as well as a husband
or father. Hart v. Hogan, 173 Wash. 598, 24 P.2d 99. To
bring a case within doctrine, it must be shown that auto-
mobile was in fact a family pleasure automobile, but auto-
mobile purchased and used for business purposes may come
within the doctrine, where it is also used for family pleas-
ure. ; Dillon v. Burnett, 197 Wash. 371, 85 P.2d 656, 658.
FAMILY COUNCIL. See Family Arrangement;
Family Meeting; Conseil de Famille.
FAMILY DEPENDENT UPON HIM FOR SUP-
PORT. Bankrupt whose minor children were liv-
ing separately from him in custody of his divorced
wife held to have "family dependent on him for
support." In re McFarland, D.C.Wash., 49 F.2d
342, 343.
FAMILY EXPENSES. Obligations incurred for
something intended for the use or comfort of the
collection spoken of as the family, as distinguished
from individual or personal expenses. Vose v.
Myott, 141 Iowa, 506, 120 N.W. 58, 21 L.R.A.,N.S.,
277.
Purchase price of team of horses used on farm was a
"family expense". Wall v. Crawford, 103 Colo. 66, 82 P.2d
749, 750.
Tuition for education of children of taxpayer held "fami-
ly expense". Channing v. U. S., D.C.Mass., 4 F.Supp. 33,
34.
FAMILY GROUP, within purview of the family
ear doctrine, is not confined to persons related to
the owner, but includes members of the collective
body of persons living in his household for whose
convenience the car is maintained and who have
authority to use it. Smart v. Bissonette, 106 Conn.
447, 138 A. 365, 366; Hart v. Hogan, 173 Wash. 598,
24 P.2d 99. See Family Purpose Doctrine, infra.
The children of trust settlor including an adult son are
members of the settlor's "family group" for income tax
purposes. Commissioner of Internal Revenue v. Wilson, C.
C.A.?, 125 F.2d 307, 310.
FAMILY HOTEL. A "family hotel", as distin-
guished from an ordinary "public hotel", in con-
struction of covenant, is designed primarily for
the accommodation of permanent guests. Kew
Gardens Corporation v. Ciro's Plaza, 175 Misc.
475, 23 N.Y.S.2d 957, 959.
FAMILY LIBRARY. Which one spouse cannot
mortgage without consent of other may be com-
posed of such books as family or head of family
chooses to select. Lupton v. Merchants' Nat. Bank
of Topeka, 140 Kan. 615, 38 P.2d 125, 127.
FAMILY MEETING. An institution of the laws
of Louisiana, being a council of the relatives (or,
if there are no relatives, of the friends) of a minor,
for the purpose of advising as to his affairs and
the administration of his property.
The family meeting is called by order of a judge, and
presided over by a justice or notary, and must consist of
at least five persons, who are put under oath. In re Bot-
hick, 44 La.Ann. 1037, 11 So. 712; Civ. Code La. art. 305.
It corresponds to the "conseil de famille" of French law,
q. v. See Lemoine v. Ducote, 45 La.Ann. 857, 12 So. 939;
Commaux v. Barbin, 6 Mart.La. N.S. 455.
FAMILY PHYSICIAN. A physician who regular-
ly attends and is consulted by the members of the
family as their medical adviser; but he need not
attend in all cases or be consulted by all the
members of the family. Price v. Ins. Co., 17 Minn.
519, Gil. 473, 10 Am.Rep. 166; Reid v. Ins. Co., 58
Mo. 424; Cromeens v. Sovereign Camp, W. O. W.,
Mo.App., 247 S.W. 1033, 1034.
FAMILY POOL. A species of contract that must
Lave something to stand on besides wishful think-
ing, and the parties to it must be conscious that
they are in it and contributing to it to be bound
by it. Sherman v. Florida Tar & Creosote Corp.,
160 Fla. 696, 36 So.2d 267, 269.
FAMILY PURPOSE DOCTRINE. A doctrine that
the owner of a car, who gives it over to the use
of his family and permits it to be operated by the
members thereof, is liable for the injuries inflicted
while being operated by a member of the family.
Turoff v. Burch, 60 App.D.C. 221, 50 F.2d 986, 987;
McNamara v. Prother, 277 Ky. 754, 127 S.W.2d
160, 161; Schwartz v. Johnson, 152 Tenn. 586, 28a
S.W. 32, 33, 47 A.L.R. 323. The doctrine, that the
owner of an automobile purchased or maintained
for the pleasure of his family is liable for in-
juries inflicted by the machine while being used
by the members of the family for their own pleas-
ure. Doss v. Monticello Electric Light & Power
Co., 193 Ky. 499, 236 S.W. 1046, 1047; Thompson
v. Kansas City Rys. Co., 113 Kan. 74, 213 P. 633.
See, also, Family Automobile Doctrine; Family
Car Doctrine; Family Group.
The doctrine imputes relationship of principal and agent
where one maintains an automobile for pleasure or other
use of member of his family. United States Fidelity &
Guaranty Co. v. Brann, 297 Ky. 381, 180 S.W.2d 102, 104;
it is based on theory that each family member in using such
car for own pleasure is carrying out the purpose for which
it is furnished, and is the owner's agent or servant, Behse-
leck v. Andrus, 60 S.D. 204, 244 N.W. 268, 269, 88 A.L.R.
596; Hackley v. Robey, 170 Va. 55, 195 S.E. 689, 692; Ener
v. Gandy, Tex.Civ.App., 141 S.W.2d 772, 775. It is founded
upon principles of agency or of master and servant. Kalil
v. Spivey, 70 Ga.App. 84, 27 S.E.2d 475, 479; Baptist v.
Slate, 162 Va. 1, 173 S.E. 512, 515; It is restricted to au-
tomobiles maintained by owner for comfort, pleasure, and
convenience of members of his family. Mitchell v. Mullen,
45 Ga.App. 285, 164 S:E. 278, 280; Commonwealth of Ken-
tucky, for Use and Benefit of Kern, v. Maryland Casualty
Co. of Baltimore, Md., C.C.A.Ky., 112 F.2d 352, 356.
A father is not liable merely because he is head of fam-
ily, but the one who owns or provides the automobile is
liable. McNamara v. Prather, 277 Ky. 754, 127 S.W.2d 160,
161, 162. A wife may be held liable for the torts of her
husband under the doctrine. Goldstein v. Johnson, 64 Ga.
App. 31, 12 S.E.2d 92, 94. Agency is the very genesis of the
doctrine, Vaughn v. Booker, 217 N.C. 479, 8 S.E.2d 603, 604,
605; Grandmother standing in loco parentis to grandson
was liable under the doctrine for grandson's negligent op-
eration of her automobile. Rutherford v. Smith, 284 Ky.
592, 145 S.W.2d 533, 536; Where wife owned automobile,
husband was not liable under "family purpose doctrine,"
for minor son's negligent operation of the automobile, not-
withstanding husband paid part of gasoline and garage
bills. McNamara v. Prather, 277 Ky. 754, 127 S.W.2d 160,
161, 162.
It has been said that the family purpose doctrine
has been accepted by the courts of about half of the
states. Jacobsen v. Dailey, 36 N.W.2d 711, 228 Minn. 201.
Among those states are Georgia, Nebraska, North Caro-
lina, and Oregon.
•
On the other hand, the doctrine has been specifical-
ly rejected, or not adopted, by fully one-half of the
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states, including California, Illinois, Mississippi, New
York, Pennsylvania, Virginia, and Wisconsin. In Min-
nesota it has been held that the doctrine has been su-
perseded by a financial responsibility statute (M.S. -A. §
170.54). Ellingboe v. Guerin, 36 N.W.2d 598, 228 Minn.
211. For a full discussion of the subject, see Blashfield,
Cyc. of Automobile Law and Prac., Perm.Ed., § 3111 et seq.
FAMILY RELATION. A relationship which may
exist between one taken into the family by the
head of the family, notwithstanding the absence
of blood relationship or of legal adoption. Nelson
v. Poorman's Estate, Mo.App., 215 S.W. 753, 754.
Such relation exists : between two sisters when there
Is moral obligation on part of one to support and care for
the other and when necessity for such care and support
exists, Standard Paving Co. v. Tolson, Tex.Civ.App., 86 S.
W.2d 789, 791; when child, receives from parent services,
maintenance, or gifts reasonably frequent to lead to ex-
pectation of future enjoyment thereof. Gaydos v. Dom-
abyl, 301 Pa. 523, 152 A. 549, 551; Where brother owes
moral obligation to support sister and necessity for such
support exists, Central Life Assur. Soc. (Mutual) v. Gray,
Tex.Civ.App., 32 S.W.2d 259, 260. Where father. lives on
homestead after mother's death with two adult sons, his
only heirs, one of whom marries and remains on with fath-
er until father's death, Cumberland & Liberty Mills v.
Keggin, 139 Fla. 133, 190 So. 492, 493. Where there is legal
or moral obligation on head of family to support the other
members, and there is dependence upon such members for
support, Standard Paving Co. v. Tolson, Tex.Civ.App., 86
S.W.2d 789, 791.
FAMILY SERVICE RULE. Under "family-pur-
pose doctrine" or "family-service rule" or "family-
automobile doctrine" or "family-car rule", family
head maintaining automobile for use of family is
liable for injury resulting from negligence of
minor son who is member of family while operat-
ing automobile with knowledge and consent of
family head for comfort or pleasure of family.
Cohen v. Whiteman, 75 Ga.App. 286, 43 S.E.2d 184,
186.
FAMILY SETTLEMENT. An agreement between
members of a family settling the distribution of
family property among them. Fitzgerald v. Nel-
son, 159 Or. 264, 79 P.2d 254, 255.
An arrangement or an agreement, between heirs of a
deceased person, by which they agree on distribution or
management of estate without administration by court
having jurisdiction of such administration proceedings.
Wright v. Saltmarsh, 174 Okl. 226, 50 P.2d 694, 703.
An agreement made between a father and his son or
children or between brothers to dispose of property in a
different manner from that which would otherwise take
place. Peterson v. Hegna, 158 Minn. 289, 197 N.W. 484, 487.
A term of practically the same signification as "family ar-
rangement," q. v. supra. See Willey v. Hodge, 104 Wis.
81, 80 N.W. 75, 76 Am.St.Rep. 852.
Where decedent's widow and son were only parties con-
cerned in distribution of decedent's estate, an agreement
between the widow and son for division of the estate was
a "family settlement". Stark v. Stark, 201 Ark. 133, 143
S.W.2d 875, 878.
FAMILY USE. That use ordinarily made by and
suitable for the members of a household whether
as individuals or collectively. Spring Valley Wa-
ter Works v. San Francisco, 52 Cal. 120. The sup-
ply of water in a municipal corporation for family
use includes the supply of jails, hospitals, alm-
houses, schools, and other municipal institutions;
id.
FAMOSUS. In the civil and old English law. Re-
lating to or affecting injuriously the character or
reputation; defamatory; slanderous; scandalous.
FAMOSUS LIBELLUS. A libelous writing. A
term of the civil law denoting that species of in-
juria which corresponds nearly to libel or slander.
FANAL. Fr. In French marine law. A large
lantern, fixed upon the highest part of a vessel's
stern.
FANATIC. A religious enthusiast; a bigot; a
person entertaining wild and extravagant notions,
or affected by zeal or enthusiasm, especially upon
religious subjects.
Also, a person pretending to be inspired;—formerly ap-
plied to Quakers, Anabaptists, and all other sectaries, and
factious dissenters from the Church of England. St. 13
Car. II. c. 6. Jacob.
FANCIFUL TRADE-NAME. Trade-names are
"fanciful" when they do not, by their usual and
ordinary meaning, denote or describe products to
which they are applied, but indicate their purpose
by application and association. Skinner Mfg. Co.
v. General Foods Sales Co., D.C.Neb., 52 F.Supp.
432, 445.
FANEGA. In Spanish law. A measure of land
varying in different provinces, but in the Spanish
settlements in America consisting of 6,400 square
varas or yards. Diccionario de la Acad.; 2 White
Recop. 49; 138.
FAQUEER, See Fakir.
FARANDMAN. In Scotch law. A traveler or
merchant stranger. Skene.
FARDEL OF LAND. In old English law. The
fourth part of a yard-land. Spelman. Noy says
an eighth only, because, according to him, two
fardels make a nook, and four nooks a yard-land.
Wharton. See Noy, Complete Lawyer 57; Cowell;
Cunningham, Law Dict.
FARDELLA. In old English law. A bundle or
pack; a fardel. Fleta, lib. 1, c. 22, § 10.
FARDING-DEAL. The fourth part of an acre of
land. Spelman.
FARE. A voyage or passage by water; also the
money paid for a passage either by land or by wa-
ter. Cowell.
The sum paid or to be paid for carrying a pas-
senger. Chase v. New York Cent. R. Co., 26 N.Y.
526; Clark v. Southern Ry. Co., 69 Ind.App. 697,
119 N.E. 539, 543.
As used in connection with interstate transportation,
means a rate of charge for the carriage of passengers, as
approved by the proper governmental agency. Krause v.
Pacific Mut. Life Ins. Co. of California, 141 Neb. 844, 5 N.
W.2d 229, 232.
In case of a water company it means the tax or compen-
sation which the company may charge for furnishing a
supply of water. McNeal Pipe & Foundry Co. v. Howland,
111 N.C. 615, 16 S.E. 857, 20 L.R.A. 743.
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FARE
FARE 1AYING PASSENGER is a passenger
who pays the legal fare. Krause v. Pacific Mut.
Life Ins. Co. of California, 141 Neb. 844, 5 N.W.
2d 229, 232.
FARINAGIUM. A mill; a toll of meal or flour.
Jacob; Spelman.
FARLEU (or FARLEY). Money paid by tenants
in lieu of a heriot. It was often applied to the
best chattel, as distinguished from heriot, the best
beast. Cowell.
FARLINGARII. Whoremongers; adulterers.
FARM, n. A body of land under one ownership,
devoted to agriculture, either to raising crops, or
pasture, or both. Dorsett v. Watkins, 59 Oki. 198,
158 P. 608, 9 A.L.R. 278. With the development
particularly of the western states, a large part of
whose wealth consists of cattle, the word "farm"
has acquired a somewhat broader meaning, and in
its generic sense is as applicable to a stock farm
as to one where grain is raised. Porter v. Yakima
County, 77 Wash. 299, 137 P. 466, 467. A certain
amount of provision reserved as the rent of a
messuage. Spelman. A considerable tract of land
cultivated or used in some one of the usually
recognized ways of farming. Mattison v. Dunlap,
191 Okl. 168, 127 P.2d 140, 141. A term, a lease of
lands; a leasehold interest. 2 Bl.Comm. 17; 1
Reeve, Eng. Law, 301, note. The land itself, let
to farm or rent. 2 Bl.Comm. 368. Rent generally
which is reserved on a lease; when it was to be
paid in money, it was called "blanche firme."
Spelman; 2 Bl.Comm. 42.
Old English Law. A lease of other things than
land, as of imposts. There were several of these,
such as "the sugar farm," "the silk farm," and
farms of wines and currants, called "petty farms."
See 2 How. State Tr. 1197-1206.
The word has been defined to mean : a considerable tract
.of land, or a number of small tracts, devoted wholly or
partially to agricultural purposes or pasturage of cattle
but may also include woodland, Jones v. Holloway, 183
Md. 40, 36 A.2d 551, 554, 152 A.L.R. 933; A large tract or
portion of land taken by a lease under a yearly rent pay-
able by the tenant, Tomlin, Law Diet. ; a parcel or group
of parcels of land cultivated as a unit, Supervisors of Man-
helm Tp., Lancaster County, v. Workman, 154 Pa.Super.
146, 35 A.2d 747, 749; a piece of land held under lease for
cultivation; Supervisors of Manheim Tp., Lancaster Coun-
ty, v. Workman, 154 Pa.Super. 146, 35 A.2d 747, 749; a
piece of land used wholly or principally for agricultural
purposes. State Industrial Accident Commission v. Eggi-
man, 172 Or. 19, 139 P.2d 565, 567; a plot or tract of land
devoted to the raising of domestic or other animals;
as a chicken farm; a fox farm; Hagenburger v. City of
Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, 347; a portion
of land used for agricultural purposes, either wholly or in
part; a tract of land devoted in part, at least, to cultiva-
tion, for agricultural purposes, without reference to its ex-
tent, or to the tenure by which it is held. People ex rel.
Rogers v. Caldwell, 142 Ill. 434, 32 N.E. 691; Fleckles v.
Hille, 83 Ind.App. 715, 149 N.E. 915.
A tract of land devoted to agricultural purposes. Hagen-
burger v. City of Los Angeles, 51 Cal.App.2d 161, 124 P.2d
345, 347; a tract of land devoted to agriculture, stock rais-
ing, or some allied industry, Winship v. Inspector of Build-
ings of Town of Wakefield, 274 Mass. 380, 174 N.E. 476, 477;
:a tract of land devoted to general or special cultivation
under single control. Supervisors of Manheim Tp., Lan-
caster County, v. Workman, 154 Pa.Super. 146, 35 A.2d
747, 749.; a tract of land used for raisir.g crops or rearing
animals. Gordon v. Buster, 113 Tex. 382, 257 S.W. 220; a
wheat, fruit, dairy or market farm, Township of Marple
v. Lynam, 151 Pa.Super. 288, 30 A.2d 208, 210.
Both grazing and cultivated lands, sold on mortgage
foreclosure, constituted "farm," State ex rel. Wahluke Inv.
Co. v. Superior Court for Walla Walla County, 168 Wash.
142, 10 P.2d 986, 987.
The original meaning of the word was "rent," and by a
natural transition it came to mean the land out of which
the rent issued.
The term does not necessarily include only the land un-
der cultivation and within a fence. It may include all
the land which forms part of the tract, and may also in-
clude several connected parcels under one control. Succes-
sion of Williams, 132 La. 865, 61 So. 852, 853.
The word "farm" within town zoning by-law, means land
used for production of crops, livestock grazing, raising of
hay for cows to produce milk and other dairy products„
raising of poultry and sale of chickens and eggs, or grow-
ing of fruit. Town of Lincoln v. Murphy, 314 Mass. 16, 49
N.E.2d 453, 455, 146 A.L.R. 1196.
Usually the chief messuage in a village or town whereto
belongs a great demesne of all sorts. Cowell; Cunning-
ham, Law Diet. ; Termes de la Ley.
FARM, v. To lease or let; to demise or grant
for a limited term and at a stated rental.
FARM CROSSING. A roadway over a railroad
track at grade for the purpose of reaching tillage
land cut off by the track. True v. Maine Cent. R.
Co., 113 Me. 375, 94 A. 183, 184. See, also, In re
Colvin Street in City of Buffalo, 155 App.Div. 808,
140 N.Y.S. 882, 883.
A conveyance of strip of land across farm to railroad as
right of way, which reserved to grantor right to maintain
two "farm crossings" over right of way, is broad enough
to permit installation of an underground conduit for pur-
pose of supplying electricity to farm of grantor for domes-
tic and farm purposes. New York Cent. R. Co. v. Yarian,
719 Ind. 477, 39 N.E.2d 604, 607, 139 A.L.R. 455.
A farm crossing is a crossing used in connection with a
farm and not property within city limits. Chicago, M., St.
P. & P. R. Co. v. Cross, 212 Iowa 218, 234 N.W. 569, 572.
FARM LABOR. Agricultural employment and
farm labor are used as practically synonymous
and include all farm work and work incidental
thereto. Smythe v. Phoenix, 63 Idaho 585, 123 P.
2d 1010, 1012.
Ordinarily, the term "farm labor" connotes the tilling
of the soil, its products and the raising and caring for
such domestic animals as are usually found in those sur-
roundings. Tucker v. Newman, 217 Minn. 473, 14 N.W.2d
767, 771, 772.
Under Unemployment Insurance Law an employee em-
ployed on a farm devoted to the raising of fur-bearing
animals was engaged in "farm labor". In re Bridges, 262
App.Div. 19, 28 N.Y.S.2d 312, 314.
FARM LABORER. Generally, a man hired to go
on a farm. Klein v. McCleary, 154 Minn. 498, 192
N.W. 106, 107. The term "farm laborer" is or-
dinarily synonymous with the term "hired man."
Lowe v. North Dakota Workmen's Compensation
Bureau, 66 N.D. 246, 264 N.W. 837, 107 A.L.R. 973.
One employed as a laborer on a farm, especially one
who does all kinds of farm work, In re Keaney, 217 Mass.
5, 104 N.E. 438; one employed in or about business of
farming. Pridgen v. Murphy, 44 Ga.App. 147, 160 S.E. 701,
702; one employed on a farm in customary types of farm
work or employed and paid directly by a farmer in trans-
porting his raw produce. Cedarburg Fox Farms v. In-
dustrial Commission, 241 Wis. 604, 6 N.W.2d 687, 689, 690 ;
one who devotes his time to ordinary farm labor as gain-
ful occupation with some reasonable degree of regularity
and continuity, Adams v. Ross, 230 App.Div. 216, 243 N.Y.S.
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FARMER
464, 466; Makeever v. Marlin, 92 Ind.App. 158, 174 N.E.
517, 518; one who labors on a farm in raising crops, or in
doing general farm work. H. Duys & Co. v. Tone, 125
Conn. 300, 5 A.2d 23, 28; Wayland v. Kleck, 57 Ariz. 135,
112 P.2d 207, 208..
On question whether the term as used in Workmen's
Compensation Acts includes an employee on a corn husking
or a grain threshing outfit, or the like, which goes from
one farm to another for compensation, the decisions are
conflicting. See Slycord v. Horn, 179 Iowa, 936, 162 N.W.
249, 252, 7 A.L.R. 1285. For cases contra, holding that such
an employee is not a farm laborer, see In re Boyer, 65 Ind.
App. 408, 117 N.E. 507, 508; Industrial Commission of State
of Colorado v. Shadowen, 68 Colo. 69, 187 P. 926, 927, 13
A.L.R. 952.
The term includes a compensation claimant hired to feed
and water poultry and clean poultry bins and houses and
collect eggs, Bennett v. Stoneleigh Farms, 254 App.Div.
790, 4 N.Y.S.2d 255, 256; a ranch laborer, Gordon v. Bus-
ter, 113 Tex. 382, 257 S.W. 220; a sheep herder, Davis v.
Industrial Commission, 59 Utah, 607, 206 P. 267, 268;
Finger v. Northwest Properties, 63 S.D. 176, 257 N.W. 121;
employee injured while carting firewood for domestic use
from a farm that employer was operating on shares, But-
terfield v. Brown, 261 App.Div. 1022, 25 N.Y.S.2d 803, 804;
employee of independent contractor engaged in business of
spraying trees for owners of citrus orchards, Maryland
Casualty Co. v. Dobbs, 128 Tex. 547, 100 S.W.2d 349, 350.
Employee of owner of farm land employed solely to dig
ditch, Culpepper v. White, 52 Ga.App. 740, 184 S.E. 349;
farm hand injured while cranking tractor furnishing power
for buzz saw used to saw wood of employer's neighbor,
McAllister v. Cobb, 237 App.Div. 674, 263 N.Y.S. 349;
nurseryman's helper or employee, held "farm laborer",
Georgia Casualty Co. v. Hill, Tex.Civ.App., 30 S.W.2d 1055,
1057; In re Bronxville Nurseries, 258 App.Div. 1019, 17
N.Y.S.2d 95.
FARM LAND. A term applicable to all the land
contained in a farm, and not necessarily merely
to land which has been plowed. De Woffe v. Kup-
ers, 106 Or. 176, 211 P. 927, 930.
FARM LEASE. A contract upon a printed lease
form, containing all provisions of standard Ne-
braska farm leases, was a "farm lease," notwith-
standing inserted provision that first party em-
ployed second party to farm the premises and
would pay second party half the corn and hay. In
re Mulligan, D.C.Neb., 45 F.Supp. 763, 766.
FARM LET. Technical words in a lease creating
a term for years. Co. Litt. 45 b; 1 Washb. R. Pr.
Index, Lease. Operative words in a lease, which
strictly mean to let upon payment of a certain
rent in farm; e., in agricultural produce.
FARM OUT. To let for a term at a stated rental.
Among the Romans the collection of revenue was farmed
out, and the same system existed in France before the rev-
olution of 1789; in England the excise taxes were farmed
out, and thereby their evils were greatly aggravated. The
farming of the excise was abolished in Scotland by the un-
ion, having been before that time abandoned in England.
In all these cases the custom gave rise to great abuse and
oppression of the people, and in France most of the farm-
ers-general, as they were called, perished on the scaffold.
FARM PRODUCTS. Include swine, horses, meat
cattle, sheep, manure, cordwood, hay, as well as
vegetables, fruit, eggs, milk, butter, lard, and
other provisions for the mouth. Keeney v. Beas-
man, 169 Md. 582, 182 A. 566, 569, 103 A.L.R. 1515.
FARM-TO-MARKET ROADS. Within act desig-
nating purposes for which road funds were allot-
ted to counties, held to mean county public high-
ways leading directly to, or intersecting, state
highways leading to markets. Hastings v. Pfeif-
fer, 184 Ark. 952, 43 S.W.2d 1073, 1074.
FARM UTENSILS. A term which, in an insur-
ance policy, is broader than the term garden tools,
and includes any instrumentalities within the
meaning of the word utensils made use of on a
farm, including a stock scale or a new windmill
not erected. Murphy v. Continental Ins. Co., 17&
Iowa 375, 157 N.W. 855, L.R.A.1917B, 934.
FARM WAGON. This term in an exemption stat-
ute includes a farm wagon moved by mechanical
as well as by animal power. People v. Corder, 82
Colo. 318, 259 P. 613.
FARMER. A cultivator; a husbandman; an agri-
culturist. Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d
1017, 1018. One who assumes the collection of the
public revenues, taxes, excise, etc., for a certain
commission or percentage; as a farmer of the.
revenues. The lessee of a farm. It is said that
every lessee for life or years, although it be but
of a small house and land, is called "farmer."'
This word implies no mystery, except it be that of
husbandman. Cunningham; Cowell; 3 Sharsw.
Bla.Comm. 318. There may also be a farmer of
other personal property as well as of revenue and.
of lands. Plowd._ 195; Cunn. Law Diet.
The word "farmer" also includes: an individual : pri-
marily, bona fide, personally engaged in producing prod-
ucts of the soil, in dairy farming, the production of poultry
or live stock, the production of poultry or live stock prod-
ucts, or the principal part of whose income is derived from
any one or more of the foregoing operations, In re Davis,
D.C.Iowa, 22 F.Supp. 12, 13; employer cutting valuable
timber off land incidental to his occupation of agriculture,
Robinson v. Stockley, 166 Tenn. 380, 61 S.W.2d 677. One
continuously and profitably engaged in farming, though
much of his efforts were devoted to unprofitable seed busi-
ness, Stoller v. Cleveland Trust Co., C.C.A.Ohio, 133 F.2d'
180, 181; one engaged exclusively in raising tomato plants
to sell to others who -actually grow the tomatoes for mar-
ket, In re Horner, C.C.A.I11., 104 F.2d 600, 602; one en-
gaged in agricultural pursuits as a livelihood or business,
Skinner v. Dingwell, C.C.A.Iowa, 134 F.2d 391, 393; one-
engaged in dairy farming and in production of poultry or
livestock, Leonard v. Bennett, C.C.A.Or., 116 F.2d 128, 131,
132, 134; one engaged in the business of cultivating land'
or employing it for the purpose of husbandry, Kaslovitz v.
Reid, C.C.A.Utah, 128 F.2d 1017, 1018; one living on his
farm from revenue thereof and personally operating it on
large scale as his primary activity, In re Lindsay, D.C.
Tex., 41 F.Supp. 948, 950, 951; one personally engaged in.
farming. Shyvers v. Security-First Nat. Bank of Los An-
geles, C.C.A.Cal., 108 F.2d 011, 612, 613, 126 A.L.R. 674;.
In re Davis, D.C.Iowa, 22 F.Supp. 12, 13; one primarily en-
gaged in agricultural pursuits. Leonard v. Bennett, C.C.A.
Or., 116 F.2d 128, 131, 132, 134; one who cultivates a con-
siderable tract of land in some one of the usual recognized
ways of farming, Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d
1017, 1018; Matteson v. Dunlap, 191 Okl. 168, 127 P.2d 140,
141; one who cultivates a farm either as owner or lessee.
Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d 1017, 1018; one
who cultivates a farm, whether the land be his own or an-
other's; one who directs the business of a farm and. works
at farm labor. Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d
1017, 1018; Stoner v. New York Life Ins. Co., Mo.App., 90
S.W.2d 784, 795; one who expends his energies and produc-
tion efforts in tilling the soil, raising crops and marketing
them, thereby promoting his financial interest and advance-
ment, Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d 1017, 1018;
one who is devoted to the tillage of the soil, Kaslovitz v.
Reid, C.C.A.Utah, 128 F.2d 1017, 1018; one who is primarily,
personally, and bona fide engaged in farming although he
does not spend all of his time therein, work farm without
assistance, or refrain from engaging in secondary activities,
In re Lindsay, D.C.Tex., 41 F.Supp. 948, 950, 951; one who,
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FARMER
owns and resides on a farm, Kaslovitz v. Reid, C.C.A.Utah,
128 F.2d 1017, 1018; one who resides on a farm with his
family, cultivating such farm, and mainly deriving his
support from it, Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d
1017, 1018; one who resides on and cultivates a farm, main-
ly deriving his support therefrom, State v. Hines, 94 Or.
607, 186 P. 420, 422.
The term "farmer" in Bankruptcy Act includes an ad-
ministrator, Harris v. Zion Sa y . Bank & Tyust Co., 317 U.
S. 447, 63 S.Ct. 354, 357, 87 L.Ed. 390; personal representa-
tive of a deceased farmer. In re Stoner, C.C.A.Pa., 133 F.
2d 696, 697.
FARMER GENERAL. See Farm Out.
FARMING. Tillage of the soil. In re Brown,
D.C.Mo., 284 F. 899, 900; Hart-Parr Co. v. Barkley,
C.C.A.Okl., 231 F. 913, 914.
Other definitions include:
Act or business of cultivating the land, Hagenburger v.
City of Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, 347;
business of cultivating land or employing it for the pur-
poses of husbandry, Kaslovitz v. Reid, C.C.A.Utah, 128 F.
2d 1017, 1018; business of tilling the soil, Hagenburger
v. City of Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345,
347; commercial production of any plant, even horticultur-
al or annual which has economic value, Township of Marple
v. Lynam, 151 Pa.Super. 288, 30 A.2d 208, 210; conduct of
a farm, State Industrial Accident Commission v. Eggiman,
172 Or. 19, 139 P.2d 565, 567, 569; cultivation and fertiliza-
tion of the soil as well as caring for and harvesting the
crops, Kaslovitz v. Reid, C.C.A.Utah, 128 F.2d 1017, 1018;
cultivation of land for production of agricultural crops with
incidental enterprises, Collins v. Mills, 198 Ga. 18, 30 S.E.
2d 866, 870; cultivation of the soil for the production of
crops, Chudnov v. Board of Appeals of Town of Bloomfield,
113 Conn. 49, 154 A. 161, 162; operation of a farm, In re
McMurray, D,C.Iowa, 8 F.Supp. 449, 454; operation of a
nursery from which no sales were made on lots within
zoning district, Hagenburger v. City of Los Angeles, 51
Cal.App.2d 161, 124 P.2d 345, 347, 348; stock raising and
dairying if in connection with and incidental to tillage of
the soil, In re Brown, D.C.Wash., 251 F. 365, 370; to pro-
duce crops or animals on a farm. Hagenburger v. City of
Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, 347.
Cultivation of an indefinite quantity of land, and includ-
ing gardening or horticulture, fruit growing, raising of
vegetables, trees, shrubs, plants and similar products is
farming within zoning ordinance. Hagenburger v. City of
Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, 347, 348.
Pasturing sheep is "farming or agriculture". Weddle v.
Parrish, 135 Or. 345, 295 P. 454, 455.
"Farming" implies that the operator is dealing with the
natural products of the soil in a natural manner, Dye v.
McIntyre Floral Co., 176 Tenn. 527, 144 S.W.2d 752, 753.
To be engaged in "farming" within Bankruptcy Act,
debtor need not be actually engaged in manual farm work,
but may operate farm himself, or may operate many farms
through overseers and wage hands. Florida Nat. Bank v.
Evans, D.C.Ga., 28 F.2d 67, 68.
FARMING BUSINESS. A farmer's employee en-
gaged in delivering a farm product to market or
to buyer is employed in the "farming business".
Hayes v. Barras, La.App., 6 So.2d 66, 68; Robi-
chaux v. Realty Operators, 195 La. 70, 196 So. 23,
26.
FARMING OPERATIONS within statute provid-
ing for relief to farm debtors, means production
of raw food or other material by natural pro-
cesses of growth, and includes production of poul-
try and eggs. In re Knight, D.C.Conn., 9 F.Supp.
502.
Clearing wood land, if a mere incident to farming opera-
tions, is itself a "farming operation," Stahl v. Patrick,
206 Minn. 413, 288 N.W. 854, 855.
Persons employed to pack tobacco in warehouses by cor-
poration which grew its own tobacco were engaged in
"farming operations" where there was no market for
tobacco at time it was brought to warehouses. American
Sumatra Tobacco Corporation v. Tone, 127 Conn. 132, 15
A.2d 80, 82.
FARMING PRODUCTS. All things are considered
as "farming products" or "agricultural products"
which have a situs of their production upon the
farm and which are brought into condition for
uses of society by labor of those engaged in agri-
cultural pursuits as contradistinguished from
manufacturing or other industrial pursuits. In re
Rodgers, 134 Neb. 832, 279 N.W. 800, 803.
FARMING PURPOSES. These words are not
limited in meaning to mere cultivation of soil and
maintenance of improvements thereon for such
purposes, but include raising of live stock, as well
as production of farm crops directly from soil.
State v. Superior Court for Walla Walla County,
168 Wash. 142, 10 P.2d 986, 987.
FARO. An unlawful game of cards, in which
all the other players play against the banker or
dealer, staking their money upon the order in
which the cards will lie and be dealt from the
pack. Webster; Ward v. State, 22 Ala. 19; U. S.
v. Smith, 27 Fed.Cas. 1149; Patterson v. State, 12
Tex.App. 224.
FARO LAY—OUT. A board commonly covered
with green cloth to which the entire spade suit
is affixed in a certain order. State v. Williams,
157 P. 957, 52 Mont. 369.
FARRAGO LIBELLI. Lat. An ill-composed book
containing a collection of miscellaneous subjects
not properly associated nor scientifically arranged.
Wharton.
FARRIER. One who takes upon himself the pub-
lic employment of shoeing horses. See 1 B1.Comm.
431; 2 Salk. 440; Hanover, Horses 215.
FARTHING. The fourth part of an English
penny.
FARTHING OF _GOLD. An ancient English coin,
containing in value the fourth part of a noble. 9
Hen. V. c. 7.
FARTHING OF LAND. A great quantity of land,
differing much from farding-deal, q. v.
FARVAND. Standing by itself, this word signifies
"passage by sea or water." In charter-parties, it
means voyage or passage by water. 18 C.B. 880.
FARYNDON INN. The ancient designation of
Serjeants' Inn, Chancery Lane, London.
FAS. Lat. Right; justice; the divine law. 3 BL
Comm. 2; Calvin.
In primitive times it was the will of the gods, embodied
in rules regulating not only ceremonials but the conduct of
all men, Taylor, Science of Jurispr. 65.
FASCISM. Is defined as the principles and or-
ganization of the patriotic and anti-communist
movement in Italy started during the great war,
culminating in the virtual dictatorship of Signor
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FATUA
Mussolini and imitated ' by fascist or blackshirt
organizations in other countries. Luotto v. Field,
Sup., 49 N.Y.S.2d 785, 788.
FASCIST. A member of the Fascisti, pertaining
to, sponsored by or embodying the principles of
the Fascisti, which principles are described as na-
tionalist and conservative and embodying prin-
ciples of syndicalism, whether applied to an Ital-
ian party or to a similar party in other countries.
Luotto v. Field, Sup., 49 N.Y.S.2d 785, 788.
A totalitarian; a believer in the corporate state;
one opposed to the exercise of democratic meth-
ods or of civil liberties; high handed. A name
of opprobium sometimes given to those who op-
pose proposed reforms or who are conservative
in their political views.
FASIUS. In old English law. A faggot of wood.
FAST BILL OF EXCEPTIONS. One which may
be taken in Georgia in injunction suits and similar
cases, at such time and in such manner as to bring
the case up for review with great expedition. It
must be certified within twenty days from the
rendering of the decision. Sewell v. Edmonston,
66 Ga. 353.
FAST-DAY. A day of fasting and penitence, or
of mortification by religious abstinence. As to
counting it in legal proceedings, see 1 Chit. Archb.
Pr., 12th Ed., 160, et seq.
FAST ESTATE. See Estate.
FASTERMANS, FASTERMANNES, or FASTING-
MEN. Men in repute and substance; pledges,
sureties, or bondsmen, who, according to the Sax-
on polity, were fast bound to answer for each
other's peaceable behavior. Spelman; Enc. Lond.
FASTL In Roman law. Lawful. Dies fasti, law-
ful days; days on which justice could lawfully be
administered by the prEetor. See Dies Fasti.
FAT SPOT. A "fat spot" is a spot where there is
an excessive amount of bituminous material on
the surface of the pavement. Karl v. State, 279
N.Y. 555, 18 N.E.2d 852, 853.
FATAL ERRORS. Are such only as may reason-
ably be held to have worked injury to complain-
ing party. Willard v. Stauffer, 91 Ind.App. 119,
170 N.E. 332, 334.
FATAL INJURY. A term embracing injuries re-
sulting in death, which, as used in accident and
disability insurance policies is distinguished from
"disability," which embraces injuries preventing
the insured from performing the work in which
he is usually employed, but not resulting in death.
Provident Life & Accident Ins. Co. v. Johnson,
Tex.Civ.App., 235 S.W. 650, 652.
FATAL VARIANCE. A variance tending to mis-
lead defendant in making defense or one prevent-
ing plea of former jeopardy. Burke v. U. S., C.C.
A.Cal., 58 F.2d 739, 741.
A variance in order to be "fatal" must be mater-
ial. Whittier v. Leifert, 72 N.D. 528, 9 N.W.2d
Black's Law Dictionary Revised 4th Ed.-47
402, 405; People v. Mizer, 37 Cal.App.2d 148, 99
P.2d 333, 335, 336; it must be misleading or serve
to mislead the adverse party, Lorenz v. Santa
Monica City High School Dist., 51 Cal.App.2d 393,
124 P.2d 846, 851; it must be substantial and ma-
terial, Miller v. Arliskas, 324 Ill.App. 588, 58 N.E.
2d 743.
Attempt to introduce evidence of special damages from
breach of tort or breach of contract, under general aver-
ment of damage is a "fatal variance". W. C. Hardesty Co.
v. Schaefer, Mo.App., 139 S.W.2d 1031, 1035.
The general rule with respect to proof of time when an
offense is committed is that there is no "fatal variance"
from the allegation that it was committed on a particular
date, to show that it was actually committed on or about
or near that date unless the variance results in misleading
defendant so as to prevent him from making his defense to
the charge or to deprive him of the benefit of a plea of
former jeopardy in event of another trial for the same of-
fense. People v. Tracy, 50 Cal.App.2d 460, 123 P.2d 138,
140, 141.
FATETUR FACINUS QUI JUDICIUM FUGIT.
He who flees judgment confesses his guilt. 3 Inst.
14; 5 Co. 109b. But see Best, Pres. § 248.
FATHER. A male parent. In re Clark's Estate,
228 Iowa 75, 290 N.W. 13, 32. He by whom a
child is begotten. Natural father; procreator of
a child. In re Dexheimer's Estate, 197 Wis. 145,
221 N.W. 737. For "Putative Father," see that
title.
As used in law, this term may (according to the context
and the nature of the instrument) include a putative as
well as a legal father, also a stepfather, an adoptive father,
or a grandfather, but is not as wide as the word "parent,"
and cannot be so construed as to include a female. Thorn-
burg v. American Strawboard Co., 141 Ind. 443, 40 N.E.
1062, 50 Am.St.Rep. 334; McGaughey v. Grand Lodge, A.
0. U. W. of State of Minnesota, 148 Minn. 136, 180 N.W.
1001; Fienup v. Stamer, Mo.App., 28 S.W.2d 437, 439. The
term may, however, be so limited as to mean only the fa-
ther of a legitimate child. People v. Wolf, 216 App.Div.
771, 215 N.Y.S. 95, 96; Howard v. U. S., D.C.Ky., 2 F.2d
170, 173.
As used in law, this term may mean natural father and
not adoptive parent. McKinney v. Minkler, Tex.Civ.App.,
102 S.W.2d 273, 279; Jackson's Adm'x v. Alexiou, 223 Ky.
95, 3 S.W.2d 177, 178, 56 A.L.R. 1345.
As used in statute providing that father may inherit from
his illegitimate children, includes heirs of the father. State
v. Chavez, 42 N.M. 569, 82 P.2d 900, 906.
As used in statutes relating to duty of a father and
other relatives to support adult children likely to become
public charges, refers to foster father after adoption, Betz
v. Horr, 276 N.Y. 83, 11 N.E.2d 548, 550, 114 A.L.R. 491.
The appellation "Father" indicates that the one to whom
it is applied is a priest of the Catholic Church, Sweeney v.
Newspaper Printing Corporation, 177 Tenn. 196, 147 S.W.2d
406, 407.
The word may be used in will as equivalent of "parent,"
which is defined as meaning father and mother. In re
Frist's Estate, 18 Del.Ch. 409, 161 A. 918.
FATHER-IN-LAW. The father of one's wife or
husband.
FATHOM. A nautical measure of six feet in
length. Occasionally used as a superficial measure
of land and in mining, and in that case it means
a square fathom or thirty-six square feet. Na-
haolelua v. Kaaahu, 9 Hawaii, 601.
FATUA MULIER. A whore. Du Fresne.
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FATUITAS
FATUITAS. In old English law. Fatuity; idiocy.
Reg. Orig. 266.
FATUM. Lat. Fate; a superhuman power; an
event or cause of loss, beyond human foresight
or means of prevention.
FATUOUS PERSON. In Scotch law. One entire-
ly destitute of reason; is qui omnino desipit.
Ersk. Inst. 1, 7, 48. An idiot. Jacob. One who is
incapable of managing his affairs, by reason of a
total defect of reason. He is described as having
uniform stupidity and inattention of manner and
childishness of speech. Bell's Law Dict.
FATUUM JUDICIUM. A foolish judgment or
verdict. As applied to the latter it is one rather
false by reason of folly than criminally so, or as
amounting to perjury. Bract. fol. 289.
FATUUS. An idiot or fool. Bract. fol. 420b.
Foolish; silly; absurd; indiscreet; or ill consid-
ered. See Fatuum judicium.
FATUUS, APUD JURISCONSULTOS NOSTROS,
ACCIPITUR PRO NON COMPOS MENTIS; ET
FATUUS DICITUR, QUI OMNINO DESIPIT. 4
Coke, 128. Fatuous, among our jurisconsults, is
understood for a man not of right mind; and he
is called "fatuus" who is altogether foolish.
FATUUS PRZESUMITUR QUI IN PROPRIO
NOMINE ERRAT. A man is presumed to be
simple who makes a mistake in his own name.
Code, 6, 24, 14; Van Alst v. Hunter, 5 Johns. Ch.,
N.Y. 148, 161.
FAUBOURG. In French law, and in Louisiana.
A district or part of a town adjoining the prin.
cipal city; a suburb. See City Council of Lafay-
ette v. Holland, 18 La. 286.
FAUCES TERR1E. (Jaws of the land.) Narrow
headlands and promontories, inclosing a portion
or arm of the sea within them. 1 Kent, Comm.
367, and note; Hale, De Jure Mar. 10; The Har-
riet, 1 Story, 251, 259, Fed. Cas. No. 6,099; 16 Yale
L.J. 471.
FAULT.
American Law. Negligence; an error or defect
of judgment or of conduct; any deviation from
prudence, duty, or rectitude; any shortcoming, or
neglect of care or performance resulting from
inattention, incapacity, or perversity; a wrong
tendency, course, or act; bad faith or mismanage-
ment; neglect of duty. School Dist. v. Boston, H.
& E. R. Co., 102 Mass. 553, 3 Am.Rep. 502; Dorr
v. Harkness, 49 N.J.Law, 571, 10 A. 400, 60 Am.
Rep. 656; Cochrane v. Forbes, 257 Mass. 135, 153
N.E. 566, 570; Continental Oil Co. v. Horsey, 175
Md. 609, 3 A.2d 476, 478; Continental Ins. Co. v.
Sabine Towing Co., C.C.A.Tex., 117 F.2d 694, 697.
As respects wife's fault as ground for divorce, it means
more than a deviation from the rules of propriety and also
means a blemish or impairment of excellence. Barnett v.
Barnett, 292 Ky. 672, 167 S.W.2d 845, 847.
As used in statute respecting suits for separate main-
tenance, means voluntary separation, or failure of duty or
misconduct materially contributing to disruption of marital
relation. Amberson v. Amberson, 349 Ill. 214, 181 N.E
825, 826.
As used in Unemployment Qompensation Act protecting
persons unemployed through no fault of their own, means
failure or volition, White v. Review Board of Indiana
Employment Security Division, 114 Ind.App. 383, 52 N.E.2d
500, 502.
The word "fault," the primary lexical meaning of which
is defect or failing, in the language of the law and in the
interpretation of statutes signifies a failure of duty, and Is
the equivalent of negligence. Milliken v. Fenderson, 110
Me. 306, 86 A. 174, 175; Marston v. Pickwick Stages, 78
Cal.App. 526, 248 P. 930, 933. But see Liberty Highway Co.
v. Callahan, 24 Ohio App. 374, 157 N.E. 708, 714.
Civil Law. Negligence; want of care. An im-
proper act or omission, injurious to another, and
transpiring through negligence, rashness, or ignor-
ance.
There are in law three degrees of faults,—the gross, the
slight, and the very slight fault. The gross fault is that
which proceeds from inexcusable negligence or ignorance;
it is considered as nearly equal to fraud. The slight fault
is that want of care which a prudent man usually takes of
his business. The very slight fault is that which is excus-
able, and for which no responsibility is incurred. Civil
Code La. art. 3556, par. 13.
Commercial Law. Defect; imperfection; blemish.
See With All Faults.
Mining Law. A dislocation of strata; particular-
ly, a severance of the continuity of a vein or lode
by.the dislocation of a portion of it.
FAUTOR. Old English law. A favorer or sup-
porter of others; an abettor. Cowell; Jacob. A
partisan. One who encouraged resistance to the
execution of process.
Spanish Law. Accomplice; the person who aids
or assists another in the commission of a crime.
FAUX.
Civil Law. The fraudulent alteration of the truth.
The same with the Latin falsum or crimen falsi.
French Law. A falsification or fraudulent altera-
tion or suppression of a thing by words, by writ-
ings, or by acts without either. Biret.
"Faux may be understood in three ways. In its most
extended sense it is the alteration of truth, with or without
intention; it is nearly synonymous with 'lying.' In a less
extended sense, it is the alteration of truth, accompanied
with fraud, mutatio veritatis cum dolo facta. And lastly,
in a narrow*, or rather the legal, sense of the word, when
it is a question to know if the faux be a crime, it is the
fraudulent alteration of the truth in those cases ascer-
tained and punished by the law." Touillier, t. 9, n. 188.
Old English Law. False; counterfeit. Faux ac-
tion, a false action. Litt. § 688. Faux money,
counterfeit money. St. Westm. 1, c. 15. Faux
peys, false weights. Britt. c. 20. Faux serement,
a false oath. St. Westm. 1, c. 38.
FAVOR, n. An act of kindness or generosity, as
distinguished from one that is inspired by regard
for justice, duty, or right. Ross v. Davis, 138 Misc.
863, 248 N.Y.S. 441, 443. Bias; partiality; lenity;
prejudice. See Challenge.
FAVOR, v. To regard with favor; to aid or to
have the disposition to aid; to show partiality or
unfair bias towards;—practically synonymous
with "support." United States v. Schulze, D.C.
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FECIAL
Cal., 253 F. 377, 379. The word implies a mental
attitude or intent. Schulze v. United States,
C.C.A.CaI., 259 F. 189, 190.
FAVORABILIA IN LEGE SUNT FISCUS, DOS,
VITA, LIBERTAS. Jenk. Cent. 94. Things favor-
ably considered in law are the treasury, dower,
life, liberty.
FAVORABILIORES REI, POTIUS QUAM AC-
TORES, HABENTUR. The condition of the de-
fendant must be favored, rather than that of the
plaintiff. In other words, melior est condiao de-
fendentis. Dig. 50, 17, 125; Broom, Max. 715. See
Hunt v. Rousmanier's Adm'r, 8 Wheat. U.S. 195,
196, 5 L.Ed. 589.
FAVORABILIORES SUNT EXECUTIONES
ALIIS PROCESSIBUS QUIBUSCUNQUE. Co.
Litt. 289. Executions are preferred to all other
processes whatever.
FAVORED BENEFICIARY. Within rule that con-
fidential relations and activity by favored bene-
ficiary in the execution of the will raises a prima
facie presumption of undue influence, is one who
in the circumstances has been favored over others
having equal claims to testator's bounty. Mind-
ler v. Crocker, 245 Ala. 578, 18 So.2d 278, 281.
FAVORES AMPLIANDI SUNT; ODIA RESTRIN-
GENDA. Jenk. Cent. 186. Favors are to be en-
larged; things hateful restrained.
FEAL. Faithful; truthful; true. Tenants by
knight service swore to their lords to be teal and
Zeal; e., faithful and loyal. Feal homager,
faithful subject.
FEAL AND DIVOT. A right in Scotland, similar
to the right of turbary in England, for fuel, etc.
Wharton; Ersk. ii. tit. ix. s. 17.
FEALTY. In feudal law. Fidelity; allegiance
to the feudal lord of the manor; the feudal ob-
ligation resting upon the tenant or vassal by
which he was bound to be faithful and true to his
lord, and render him obedience and service. See
De Peyster v. Michael, 6 N.Y. 497, 57 Am.Dec.
470; Littleton §§ 117, 131; Wright, Ten. 35;
Termes de la Ley; 1 Washb. R. P. 19; 1 Poll. &
Maitl. 277-287; Stubbs, Const. Hist. § 462 n; Co.
Lit. 67b; 3 Kent 510.
This fealty was of two sorts: that which is general, and
is due from every subject to his prince; the other special,
and required of such only as in respect of their fee are
tied by this oath to their landlords; 1 Bla.Comm. 367;
Cowell.
Fealty signifies fidelity, the phrase "feal and leal" mean-
ing simply "faithful and loyal." Tenants by knights'
service and also tenants in socage were required to take an
oath of fealty to the king or others, their immediate lords;
and fealty was one of the conditions of their tenure, the
breach of which operated a forfeiture of their estates.
Brown.
Although foreign jurists considered fealty and homage as
convertible terms, because in some continental countries
they are blended so as to form one engagement, yet they
are not to be confounded in our country, for they do not
imply the same thing, homage being the acknowledgment
of tenure, and fealty, the vassal oath of fidelity, being the
essential feudal bond, and the animating principle of a
feud, without which it could not subsist. Wharton.
FEAR. Apprehension of harm; dread; conscious-
ness of approaching danger.
Apprehension of harm or punishment, as ex-
hibited by outward and visible marks of emotion.
An evidence of guilt in certain cases. See Burrill,
Circ. Ev. 476.
The "fear" which renders evidence of female's utmost
resistance unnecessary to support conviction of "rape" is a
fear of death or great bodily harm, or a fear that so over-
powers female that she dares not resist, or a fear and ter-
ror so extreme as to preclude resistance, or a fear which
renders female's mind well nigh incapable of continuing
her resistance. State v. Hoffman, 228 Wis. 235, 280 N.W.
357, 359, 361.
Statutes defining crime of extortion and providing pun-
ishment therefor must be read together, and "fear," within
statute defining term as obtaining of property from another
with his consent induced by "fear," must be induced by
threats, and hence threat is necessary ingredient of crime.
State v. Anderson, 66 N.D. 522, 267 N.W. 121, 124.
FEASANCE. A doing; the doing of an act; a
performing or performance. See Malfeasance;
Misfeasance; Nonfeasance.
A making; the making of an indenture, release,
or obligation. Litt. § 371; Dyer, (Fr. Ed.) 56b.
The making of a statute. Keilw. lb.
FEASANT. Doing, or making, as, in the term
"damage feasant," (doing damage or injury,)
spoken of cattle straying upon another's land.
FEASIBLE. Capable of being done, executed, or
affected. Lowe v. Chicago Lumber Co. of Omaha,
135 Neb. 735, 283 N.W. 841, 844.
It also means: capable of being successfully done or ac-
complished. Gilmartin v. D. & N. Transp. Co., 123 Conn.
127, 193 A. 726, 729, 113 A.L.R. 1322; fit to be dealt with
successfully, Hinchman v. City Water Co., 179 Tenn. 545,
167 S.W.2d 986, 990; practically possible or capable of be-
ing managed, utilized, or dealt with successfully, In re
Washakie Needles Irr. Dist., 52 Wyo. 518, 76 P.2d 617, 621.
A "feasible method of liquidation", as used in section of
Bankruptcy Act setting out conditions precedent to con-
firmation of agricultural extension proposal, means that
court must be convinced before confirming proposal that
proposal to creditors is one that probably can be carried
out by debtor and result in liquidation to secured creditors
and rehabilitation for farmer, and that it is to best inter-
ests of all creditors. Heldstab v. Equitable Life Assur.
Soc. of United States, C.C.A.Kan., 91 F.2d 655, 659.
The word "feasible", within meaning of rule that a plan
of corporate reorganization must be feasible, does not con-
note absolute insurance of success but only reasonable as-
surance of success. In re Waern Bldg. Corporation, C.C.A.
Ill., 145 F.2d 584, 588.
FEASOR. Doer; maker. Feasors del estatute,
makers of the statute. , Dyer, 3b. Also used in the
compound term, "tort-feasor," one who commits or
is guilty of a tort.
FEASTS. Certain established festivals or holi-
days in the ecclesiastical calendar. These days
were anciently used as the dates of legal instru-
ments, and in England the quarter-days, for pay-
ing rent, are four feast-days. The terms of the
courts, in England, before 1875, were fixed to be-
gin on certain days determined with reference to
the occurrence of four of the chief feasts.
FECIAL LAW. The nearest approach to a system
of international law known to the ancient world.
It was a branch of Roman jurisprudence, con-
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FECIALES
cerned with embassies, declarations of war, and
treaties of peace. It received this name from the
feciales, (q. v.,) who were charged with its admin-
istration.
FECIALES. Among the ancient Romans, that
order of priests who discharged the duties of am-
bassadors. Subsequently their duties appear to
have related more particularly to the declaring war
and peace. Calvin.; 1 Kent, Comm. 6.
FEDERAL.
American Law. Belonging to the general govern-
ment or union of the states. Founded on or or-
ganized under the constitution or laws of the Unit-
ed States.
The United States has been generally styled, in American
political and judicial writings, a "federal government."
The term has not been imposed by any specific constitu-
tional authority, but only expresses the general sense and
opinion upon the nature of the form of government. In
recent years, there is observable a disposition to employ
the term "national" in speaking of the government of the
Union. Neither word settles anything as to the nature or
powers of the government. "Federal" is somewhat more
appropriate if the government is considered a union of
the states; "national" is preferable if the view is adopted
that the state governments and the Union are two distinct
systems, each established by the people directly, one for
local and the other for national purposes. See United
States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Abbott;
Mills, Representative Government 301; Freeman, Fed.
Gov't.
Constitutional Law. A term commonly used to
express a league or compact between two or more
states, to become united under one central govern-
ment. Montana Auto Finance Corporation v. Brit-
ish & Federal Underwriters of Norwich Union
Fire Ins. Soc., 72 Mont. 69, 232 P. 198, 199, 36 A.L.
R. 1495.
FEDERAL CENSUS. A census of each state or
territory or of a certain state or of any subdivi-
sion or portion of any state, provided it is taken
by and under the direction and supervision of the
Census Bureau of the United States, and approved
and certified by it as the census of that state or
subdivision. In re Cleveland's Claim, 72 Okl. 279,
180 P. 852, 885.
FEDERAL COMMON LAW is a body of decision-
al law developed by the federal courts untram-
meled by state court decisions. O'Brien v. Wes-
tern Union Telegraph Co., C.C.A.Mass., 113 F.2d
539, 541.
FEDERAL COURTS. The courts of the United
States. See Courts of the United States.
FEDERAL GOVERNMENT. The system of gov-
ernment administered in a state formed by the
union or confederation of several independent or
quasi, independent states; also the composite state
so formed.
In strict usage, there is a distinction between a confeder-
ation and a federal government. The former term denotes
a league or permanent alliance between several states, each
of which is fully sovereign and independent, and each of
which retains its full dignity, organization, and sovereign-
ty, though yielding to the central authority a controlling
power for a few limited purposes, such as external and
diplomatic relations. In this case, the component states
are the units, with respect to the confederation, and the
central government acts upon them, not upon the individual
citizens. In a federal government, on the other hand, the
allied states form a union,—not, indeed, to such an extent
as to destroy their separate organization or deprive them
of quasi sovereignty with respect to the administration of
their purely local concerns, but so that the central power is
erected into a true state or nation, possessing sovereignty
both external and internal,—while the administration of na-
tional affairs is directed, and its effects felt, not by the sep-
arate states deliberating as units, but by the people of all,
in their collective capacity, as citizens of the nation. The
distinction is expressed, by the German writers, by the use
of the two words "Staatenbund" and "Bundesstaat;" the
former denoting a league or confederation of states, and
the latter a federal government, or state formed by means
of a league or confederation.
FEDERAL INSTRUMENTALITY. A means or
agency used by the federal government. Capitol
Building & Loan Ass'n v. Kansas Commission of
Labor and Industry, 148 Kan. 446, 83 P.2d 106, 107,
118 A.L.R. 1212. A government agency immune
from state control. Waterbury Sa y . Bank v. Dan-
aher, 128 Conn. 78, 20 A.2d 455, 458.
FEDERAL PROHIBITION OFFICER. An officer
of the federal government charged with the en-
forcement of the national prohibition statute. De
Marco v. U. S., C.C.A.Va., 296 F. 667, 668.
FEDERAL QUESTION. Cases arising under
Constitution of United States, Acts of Congress,
or treaties, and involving their interpretation and
application, and of which jurisdiction is given to
federal courts, are commonly described as in-
volving a "federal question." McAllister v. St.
Louis Merchants' Bridge Terminal Ry. Co., 324
Mo. 1005, 25 S.W.2d 791, 792.
FEDERAL TRADE COMMISSION. An admin-
istrative body created by statute, with only the
duties and powers granted expressly or by fair
implication. Chamber of Commerce of Minne-
apolis v. Federal Trade Commission, C.C.A.8, 13
F.2d 673, 683. See 15 U.S.C.A. §§ 41-51.
FEDERALIST, THE. A series of 85 essays by
Alexander Hamilton, James Ma disc :, and John
Jay, expounding and advocating the adoption of
the Constitution of the United States. All but six
of the essays were first published in the "Inde-
pendent Journal" of New York City from October,
1787, to April, 1788. Webster, New Int. Dict.
"The opinion of the Federalist has always [been]
considered as of great authority." Cohens v. Vir-
ginia, 6 Wheat. 264, 418, 5 L.Ed. 257.
FEDERATED STATE. An independent central
organism, having its own machinery absorbing,
in view of international law, all the individual
states associated together. Molina v. Comision
Reguladora Del Mercado De Henequen, 91 N.J.L.
382, 103 A. 397, 400.
FEDERATION. Ordinarily, an unincorporated
association of persons for a common purpose.
Hughes v. State, 109 Ark. 403, 160 S.W. 209.
FEE. A charge fixed by law for services of pub-
lic officers or for use of a privilege under control
of government. Fort Smith Gas Co. v. Wiseman,
189 Ark. 675, 74 S.W.2d 789, 790. A recompense
for an official or professional service or a charge
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FEE-FARM
or emolument or compensation for a particular
act or service. Craig v. Shelton, 201 Ky. 790, 258
S.W. 694. A fixed charge or perquisite charged
as recompense for labor and trouble, a reward,
compensation, or wage given to a person for per-
formance of professional services or something
done or to be done. People v. Goulding, 275 Mich.
353, 266 N.W. 378, 379.
A contingent fee is a fee stipulated to be paid to an at-
torney for his services in conducting a suit or other foren-
sic proceeding only in case he wins it; it may be a per-
centage of the amount recovered. Adopted in Gray v.
Stern, 85 Wash. 645, 149 P. 26, 28.
For docket fee, see Docket.
Estates
Ordinarily, word "fee" or "fee simple" is ap-
plied to an estate in land, but term is applicable
to any kind of hereditament, corporeal or incor-
poreal, and is all the property in thing referred
to or largest estate therein which person may
have. In re Forsstrom, 44 Ariz. 472, 38 P.2d 878,
888.
A freehold estate in lands, held of a superior lord, as a
reward for services, and on condition of rendering some
service in return for it. The true meaning of the word
"fee" is the same as that of "feud" or "fief," and in its
original sense it is taken in contradistinction to "allodi-
urn," which latter is defined as a man's own land, which
he possesses merely in his own right, without owing any
rent or service to any superior. 2 Bl.Comm. 105. See Wen-
dell v. Crandall, 1 N.Y. 491.
In modern English tenures, "fee" signifies an estate of in-
heritance, being the highest and most extensive interest
which a man can have in a feud; and when the term is
used simply, without any adjunct, or in the form "fee-
simple," it imports an absolute inheritance clear of any
condition, limitation, or restriction to particular heirs, but
descendible to the heirs general, male or female, lineal or
collateral. 2 Bl.Comm. 106; Cowell; Termes de la Ley;
1 Washb.R.P. 51; Co.Litt. 1 b; 1 Prest. Est. 420; 3 Kent
514.
Base fee. A determinable or qualified fee; an estate hav-
ing the nature of a fee, but not a fee simple absolute. In
re Douglass' Estate, 94 Neb. 280, ,143 N. W. 299, 302.
Conditional fee. An estate restrained to some particular
heirs, exclusive of others, Blume v. Pearcy, 204 S.C. 409, 29
S.E.2d 673, 674, as to the heirs of a man's body, by which
only his lineal descendants were admitted, in exclusion of
collateral; or to the heirs male of his body, in exclusion of
heirs female, whether lineal or collateral. It was called a
"conditional fee," by reason of the condition expressed or
implied in the donation of it that, if the donee died without
such particular heirs, the land should revert to the donor.
2 Bl.Comm. 110. The term includes a fee that is either
to commence or determine on some condition, 10 Co. 950;
Prest.Est. 476; Fearne, Cont.Rem. 9; and is sometimes
used interchangeably with "base fee," that is, one to de-
termine or be defeated on the happening of some con-
tingent event or act. Citizens' Electric Co. v. Susque-
hanna Boom Co., 270 Pa. 517, 113 A. 559, 561; Glass v.
Johnson, 297 111. 149, 130 N.E. 473, 474.
Determinable fee. Also called a "base" or "qualified"
fee. Stubbs v. Abel, 114 Or. 610, 233 P. 852, 859. One
which has a qualification subjoined to it, and which must
be determined whenever the qualification annexed to it is
at an end. Littleton § 254; Co.Litt. 27a, 220; 1 Prest.Est.
449; 2 Bla.Comm. 109; Cruise, Dig. tit. 1, § 82. An estate
in fee which is liable to be determined by some act or
event expressed on its limitation to circumscribe its con-
tinuaAce, or inferred by law as bounding its extent. 1
Washb. Real Prop. 62; McLane v. Bovee, 35 Wis. 36. An
estate which may last forever is a "fee," but if it may end
on the happening of a merely possible event, it is a
"determinable," or "qualified fee." Reichard v. Chicago,
B. & Q. R. Co., 231 Iowa 563, 1 N.W.2d 721, 727.
Determinable fee or fee simple. Estate created with spe-
cial limitation which delimits duration of estate in land.
P C K Properties, Inc., v. City of Cuyahoga Falls, 176
N.E.2d 441, 444, 112 Ohio App. 492.
Fee damages. See Damages.
Fee expectant. A name sometimes applied to an estate
created where lands are given to a man and his wife and
the heirs of their bodies. See also Frank-Marriage.
Fee simple defeasible. Title created in trustees where le-
gal title in fee simple to active trust estate is by will
placed in trustees who are required to distribute property
in fee simple upon happening of event. Also called a
"determinable fee", "base fee", or "qualified fee". Kana-
wha Val. Bank v. Hornbeck, W.Va., 151 S.E.2d 694, 700.
Great fee. In feudal law, the designation of a fee held
directly from the crown.
Knight's fee. See Knight's Fee,
Limited fee. An estate of inheritance in lands, which is
clogged or confined with some sort of condition or qualifi-
cation. Such estates are base or qualified fees, conditional
fees, and fees-tail. The term is opposed to "fee-simple."
2 Bl.Comm. 109; Lott v. Wyckoff, 1 Barb., N.Y., 575; Pat-
erson v. Ellis, 11 Wend., N.Y., 259.
Plowman's fee. In old English law, was a species of ten-
ure peculiar to peasants or small farmers, somewhat like
gavelkind, by which the lands descended in equal shares to
all the sons of the tenant.
Qualified fee. In English law. A fee having a qualifica-
tion subjoined thereto, and which must be determined
whenever the qualification annexed to it is at an end; oth-
erwise termed a "base fee." 2 Bl.Comm. 109; 1 Steph.
Comm. 225. An interest which may continue forever, but
is liable to be determined, without the aid of a conveyance,
by some act or event, circumscribing its continuance or
extent. 4 Kent, Comm. 9; Moody v. Walker, 3 Ark. 190;
U. S. v. Reese, 27 Fed.Cas. 744. An interest given to a man
and certain of his heirs at the time of its limitation. • See
Kelso v. Stigar, 75 Md. 397, 24 A. 18.
Quasi fee. An estate gained by wrong. Wharton.
Also, the land which is held in fee.
American Law
An estate of inheritance without condition, be-
longing to the owner, and alienable by him or
transmissible to his heirs absolutely and simply,
and is an absolute estate in perpetuity and the
largest possible estate a man can have, being, in
fact, allodial in its nature. Stanton v. Sullivan,
63 R.I. 216, 7 A.2d 696, 698, 699.
Every estate which is not for life, for years or at will.
Chance v. Weston, 96 Or. 390, 190 P. 155, 157.
Terms "fee," "fee simple," and "fee simple absolute,"
are equivalent. Boon v. Boon, 348 Ill. 120, 180 N.E. 792,
794.
FEE AND LIFE-RENT. In Scotch law, two es-
tates in land—the first of which is the full right
of proprietorship, the second the limited right
of usufruct during life—may be held together, or
may co-exist in different persons at the same
time. See Bell, Prin. § 1712; Ersk. Prin. 420;
Fiar.
FEE-FARM. A species of tenure, where land is
held of another in perpetuity at a yearly rent,
without fealty, homage, or other services than
such as are specially comprised in the feoffment.
It corresponds very nearly to the "emphyteusis"
of the Roman law. Cowell. Fealty, however,
was incident to a holding in fee-farm, according
to some authors. Spelman; Termes de la Ley.
Fee-farm is where an estate in fee is granted subject to a
rent in fee of at least one-fourth of the value of the lands
at the time of its reservation. Such rent appears to be
called "fee-farm" because a grant of lands reserving so
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FEE-FARM
considerable a rent is indeed only letting lands to farm in
fee-simple, instead of the usual method of life or years. 2
Bl. Comm. 43; 1 Steph.Comm. 676.
Fee-farms are lands held in fee to render for them an-
nually the true value, or more or less; so called because
a farm rent is reserved upon a grant in fee. Such estates
are estates of inheritance. They are classed among estates
in fee-simple. No reversionary interest remains in the
lessor, and they are therefore subject to the operation of
the legal principles which forbid restraints upon alienation
in all cases where no feudal relation exists between grantor
and grantee. De Peyster v. Michael, 6 N.Y. 497, 57 Am.Dec.
470.
FEE-FARM RENT. The rent reserved on grant-
ing a fee-farm. It might be one-fourth the value
of the land, according to Cowell; one-third, ac-
cording to other authors. Spelman; Termes de la
Ley; 2 Bl. Comm. 43. Fee-farm rent is a rent-
charge issuing out of an estate in fee; a perpetual
rent reserved on a conveyance in fee-simple. De
Peyster v. Michael, 6 N.Y. 467, 495, 57 Am.Dec.
470.
FEE SIMPLE.
Absolute
A fee simple absolute is an estate limited ab-
solutely to a man and his heirs and assigns for-
ever without limitation or condition. Rathbun v.
State, 284 Mich. 521, 280 N.W. 35, 40.
Conditional
At the common law, an estate in fee simple con-
ditional was a fee limited or restrained to some
particular heirs, exclusive of others. But the stat-
ute "De Donis" converted all such estates into
estates tail. 2 Bl. Comm. 110.
American Law
An absolute or fee-simple estate is one in which
the owner is entitled to the entire property, with
unconditional power of disposition during his life,
and descending to his heirs and legal representa-
tives upon his death intestate. Code Ga. 1882, §
2246 (Civ.Code 1910, § 3657). Friedman v. Steiner,
107 Ill. 131; Woodberry v. Matherson, 19 Fla.
785; Lyle v. Richards, 9 Serg. & R., Pa. 374. Un-
limited as to duration, disposition, and descend-
ibility. Slayden v. Hardin, 257 Ky. 685, 79 S.W.
2d 11, 12.
The estate which a man has where lands are
given to him and to his heirs absolutely without
any end or limit put to his estate. 2 Bl. Comm.
106; Plowd. 557; 1 Prest. Est. 425; Litt. § 1. The
word "fee," used alone, is a sufficient designation
of this species of estate, and hence "simple" is
not a necessary part of the title, but it is added
as a means of clearly distinguishing this estate
from a fee-tail or from any variety of conditional
estates.
Fee-simple signifies a pure fee; an absolute estate of
inheritance clear of any condition or restriction to particu-
lar heirs, being descendible to the heirs general, whether
male or female, lineal or collateral. It is the largest estate
and most extensive interest that can be enjoyed in land.
Haynes v. Bourn, 42 Vt. 686; Powers v. Trustees of Cale-
donia County Grammar School, 93 Vt. 220, 106 A. 836, 841;
Smith v. Smith's Ex'r, 122 Va. 341, 94 S.E. 777, 779. When
a person owns in common with another, he does not own
the entire fee,—a fee-simple; it is a fee divided or shared
with another. Brackett v. Ridlon, 54 Me. 426.
Terms "fee," "fee simple," and "fee simple absolute,"
are equivalent. Boon v. Boon, 348 Ill. 120, 180 N.E. 792,
794.
English Law
A freehold estate of inheritance, absolute and
unqualified. It stands at the head of estates as
the highest in dignity and the most ample in ex-
tent; since every other kind of estate is derivable
thereout, and mergeable therein. It may be en-
joyed not only in land, but also in advowsons,
commons, estovers, and other hereditaments, as
well as in personalty, as an annuity or dignity,
and also in an upper chamber, though the lower
buildings and soil belong to another. Wharton;
Co.Litt. 1 b; 2 Bla. Comm. 106.
FEE TAIL. A freehold estate in which there is
a fixed line of inheritable succession limited to the
issue of the body of the grantee or devisee, and
in which the regular and general succession of
heirs at law is cut off. Coleman v. Shoemaker,
147 Kan. 689, 78 P.2d 905, 907.
An estate tail; an estate of inheritance given to a man
and the heirs of his body, or limited to certain classes of
particular heirs. It corresponds to the feudum talliatum
of the feudal law, and the idea is believed to have been
borrowed from the Roman law, where, by way of fldei
commissa, lands might be entailed upon children and freed-
men and their descendants, with restrictions as to aliena-
tion. 1 Washb.Real Prop. *66. For the varieties azad
special characteristics of this kind of estate, see Tail,
Estate in.
FEED. To lend additional support; to strengthen
ex post facto. "The interest when it accrues feeds
the estoppel." Christmas v. Oliver, 5 Mood. &
R. 202. Similarly, a subsequent title acquired
by the mortgagor is said "to feed the mortgage."
The word is used in its ordinary sense with reference to
cattle and hogs which are said to be made marketable by
feeding. Brockway v. Rowley, 66 Ill. 102.
It is also used in the phrase feeding of a cow by and on
the land to signify from the land while there is food on it,
and with hay by the owner of the land at other times; 2
Q. B. Div. 49.
FEGANGI. In old English law, a thief caught
while escaping with the stolen goods in his pos-
session. Spelman.
FEHMGERICHTE. The name given to certain
secret tribunals which flourished in Germany
from the end of the twelfth century to the middle
of the sixteenth, usurping many of the functions
of the governments which were too weak to main-
tain law and order, and inspiring dread in all
who came within their jurisdiction. Enc. Brit.
Such a court existed in Westphalia (though with
greatly diminished powers) until finally sup-
pressed by Jerome Bonaparte in 1811. See Bork,
Geschichte der Westphaelischen Vehmgerichte;
Paul Wigand, Das Fehmgericht Westphaleus.
FEIGNED. Fictitious; pretended; suppositi-
tious; simulated.
FEIGNED ACCOMPLICE. One who pretends to
consult and act with others in the planning_Dr
commission of a crime, but only for the purpose
of di$covering their plans and confederates and
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FELONIOUS
securing evidence against them. State v. Ver--
ganadis, 50 Nev. 1, 248 P. 900, 903; People v. Bol-
anger, 71 Cal. 17, 11 P. 800.
FEIGNED ACTION. In- practice, an action
brought on a pretended right, when the plaintiff
has no true cause of action, for some illegal pur-
pose. In a feigned action the words of the writ
are true. It differs from false action, in which
case the words of the writ are false. Co. Litt.
361.
FEIGNED DISEASES. Simulated maladies. Dis-
eases are generally feigned from one of three
causes,—fear, shame, or the hope of gain.
FEIGNED ISSUE. An issue framed to try ques-
tions of fact. Miles v. Layton, 8 W.W.Harr. 411,
193 A. 567, 574, 112 A.L.R. 786.
An issue made up by the direction of a court of equity,
(or by consent of parties,) and sent to a common-law court,
for the purpose of obtaining the verdict of a jury on some
disputed matter of fact which the court has not jurisdic-
tion, or is unwilling, to decide. It rests upon a suppositi-
tious wager between the parties. See 3 Bl.Comm. 452.
Under the reformed codes of some states issues may be
framed in certain exceptional cases. In England, the prac-
tice has been disused since the passing of the stat. 8 and 9
Vict. c. 109, s. 19, permitting any court to refer any ques-
tion of fact to a jury in a direct form. The act 21 and 22
Vict. c. 27, provided for trial by jury in the court of chan-
cery.
FELAGUS. In Saxon law, one bound for an-
other by oath; a sworn brother. A friend bound
in the decennary for the good behavior of an-
other. One who took the place of the deceased.
Thus, if a person was murdered, the recompense
due from the murderer went to the felagus of
the slain, in default of parents or lord. Cun-
ningham; Cowell; Du Cange.
FELD. A field; in composition, wild. Blount.
FELE, FEAL. L. Fr. Faithful. See Feal.
FELLATIO, or FELLATION. The offense com-
mitted with the male sexual organ and the mouth.
State v. Murry, 136 La. 253, 66 So. 963. See Sodo-
my.
FELLOW. A co-worker; a partaker or sharer
of; a companion; one with whom we consort;
one joined with another in some legal status or
relation; a member of a college or corporate
body.
FELLOW-HEIR. A co-heir; partner of the same
inheritance.
FELLOW SERVANT. One who serves and is
controlled by the same master. Walsh v. Eu-
banks, 183 Ark. 34, 34 S.W.2d 762, 764.
Those engaged in the same common pursuit, under the
same general control. Cooley, Torts 541. Those who derive
authority and compensation from the same common source,
and are engaged in the same general business, though it
may be in different grades or departments of it. 2 Thomp.
Neg. p. 1026, § 31; Southern Ry. Co. v. Taylor, 57 App.D.C.
21, 16 F.2d 517, 519; Brush Electric Light Co. v. Wells, 110
Ga. 192, 35 S.E. 365. When servants are employed and paid
by the same master, and their duties are such as to bring
them into such relation that negligence of one in doing his
work may injure other in performance of his, then they are
engaged in the same common business, and are "fellow
servants." Hercules Powder Co. v. Hammack, 145 Miss.
304, 110 So. 676, 677. But it has been held that an inferior
employee is not a "fellow servant" of a superior employee.
McDonald v. Louisville & N. R. Co., 232 Ky. 734, 24 S.W.2d
585, 587.
Convicts in involuntary servitude, having no power to
refuse to enter upon the service to which they have been
hired out by the state, or to quit it, are not "fellow serv-
ants." Sloss-Sheffield Steel & Iron Co. v. Weir, 179 Ala.
227, 60 So. 851, 853.
FELLOW-SERVANT RULE. The rule that the
master is not liable for injuries to a servant,
caused by the negligence of a fellow servant en-
gaged in the same general business, where the
master has exercised due care in selection of serv-
ants. Setzkorn v. City of Buffalo, 219 App.Div.
416, 219 N.Y.S. 351, 352.
FELO DE SE. A felon of himself; a suicide ar
murderer of himself.
Where a man of the age of discretion (14 years at com-
mon law) and compos mentis voluntarily kills himself.
Southern Life & Health Ins. Co. v. Wynn, 29 Ala.App. 207,
194 So. 421, 422. One who commits some unlawful or mali-
cious act which results in his own death. Hale, P.C. 411;
4 Bl.Comm. 189; Life Ass'n v. Waller, 57 Ga. 536.
FELON. A person who commits a felony. In re
La Grange, 153 Misc. 236, 274 N.Y.S. 702. One
convicted of felony.
But a person who has committed a felony, been con-
victed, served his sentence, and been discharged, may be
deemed, at least for some purposes, to be no longer a
felon; 3 Exch. Div. 352.
FELONIA. Felony. The act or offense by which
a vassal forfeited his fee. Spelman; Calvin.
Per feloniam, with a criminal intention. Co. Litt.
391.
FELONIA, EX VI TERMINI SIGNIFICAT
QUODLIBET CAPITALE CRIMEN FELLEO AN-
IMO PERPETRATUM. Co. Litt. 391. Felony, by
force of the term, signifies any capital crime per-
petrated with a malignant mind.
FELONIA IMPLICATUR IN QUALIBET PROD-
ITIONE. 3 Inst. 15. Felony is implied in every
treason.
FELONICE. Feloniously. Cunningham, Law
Dict.
Anciently an indispensable word in indictments for fel-
ony, and classed by Lord Coke among those voces artis
(words of art) which cannot be expressed by any periphra-
sis or circumlocution. 4 Coke, 39; Co.Litt. 391a; 4
Bl.Comm. 307.
FELONIOUS. A technical word of law which
means done with intent to commit crime; of the
grade or quality of a felony; such an assault on
the person as, if consummated, would subject
party making it, on conviction, to punishment of
a felony. Martin v. State, 163 Miss. 454, 142 So.
15, 16. Malicious; villainous; traitorous. People
v. Knapp, 152 Misc. 368, 274 N.Y.S. 85. Malig-
nant. People v. Moore, 37 Hun, N.Y., 93. Wrong-
ful. State v. Uhler, 32 N.D. 483, 156 N.W. 220,
226. Proceeding from an evil heart or purpose.
Gatewood v. Commonwealth, 215 Ky. 360, 285 S.W.
193, 194. Wickedly and against the admonition
of the law; unlawfully. State v. Allister, 317 Mo.
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FELONIOUS
348, 295 S.W. 754, 757. In the law of larceny,
"felonious" is synonymous with fraudulent; State
v. Albert, 117 Or. 179, 242 P. 1116, 1117; and means
done "animo furandi," that is, with intent to steal.
Fountain v. State, 92 Fla. 262, 109 So. 463, 464.
FELONIOUS ASSAULT. Such an assault upon
the person as, if consummated, would subject the
party making it, upon conviction, to the punish-
ment of a felony, that is, to imprisonment in the
penitentiary. Hinkle v. State, 94 Ga. 595, 21 S.E.
595.
FELONIOUS HOMICIDE. Killing of human be-
ing without justification or excuse. State v. Plum-
lee, 171 La. 687, 149 So. 425, 431. There are two
degrees: manslaughter and murder. It may in-
clude killing oneself. 4 Bl. Comm. 188, 190; 4
Steph. Comm. 108, 111; State v. Symmes, 40 S.C.
383, 19 S.E. 16.
FELONIOUSLY. Of, pertaining to, or having,
the quality of felony. People v. Thomas, 58 Cal.
App. 308, 208 P. 343, 344.
Means proceeding from an evil heart or purpose
done with a deliberate intention of committing a
crime. Golden v. Commonwealth, 245 Ky. 19, 53
S.W.2d 185, 186. Without color of right or excuse.
State v. Enanno, 96 Conn. 420, 114 A. 386, 387.
Malignantly; maliciously. State v. Horne, 62
Utah, 376, 220 P. 378, 381. Wickedly and against
the admonition of the law. State v. Young, 314
Mo. 612, 286 S.W. 29, 34. With a felonious intent.
An indispensable word at common law in indictments for
felony, as felonice was in the Latin forms. 4 Bl.Comm.
307; State v. Jesse, 19 N.C. 300; Com.Dig. Indictment
(G 6) ; Bac.Abr. Indictment (G 1) ; 2 Hale, Pl.Cr. 172, 184;
1 Ben. & H. Lead. Cr.Cas. 154. It is still necessary in
describing a common-law felony, or where its use is pre-
scribed by statute; Whart.Cr.P1. § 260; Bowler v. State,
41 Miss. 570; Cain v. State, 18 Tex. 387.
FELONY. A crime of a graver or more atro-
cious nature than those designated as misdemean-
ors. Ex parte Ramirez, 49 Cal.App.2d 709, 122 P.
2d 361, 362. Generally an offense punishable by
death or imprisonment in penitentiary. People
v. Pointer, 348 Ill. 277, 180 N.E. 796, 797, or state
prison. State v. Harwood, 206 N.C. 87, 173 S.E.
24, 25. And at common law, an offense occasion-
ing total forfeiture of either land or goods to
which capital or other punishment might be su-
peradded according to degree of guilt. Bell v.
Commonwealth, 167 Va. 526, 189 S.E. 441, 443.
Felony, compounding of. See Compounding
Felony.
Misprision of felony. See Misprision.
Reducible felony. A felony upon conviction of
which the offender may be punished as for a
misdemeanor, upon recommendation of the jury.
Atkins v. State, 154 Ga. 540, 114 S.E. 878.
American Law
The term has no very, definite or precise meaning, except
in some cases where it is defined by statute. In general,
what is felony under the English common law is such under
ours, 1 Bish.Cr.L. § 617; Clark, Cr.L. 33. A crime is not
a felony unless so declared by statute, or it was such at the
common law; State v. Murphy, 17 R.I. 698, 24 A.. 473, 16
L.R.A. 550.
Whether an offense is a "felony" depends on whether the
offense may be punished by confinement in the penitentiary
and not on whether such punishment of necessity follows
conviction of that offense. Lashley v. State, 236 Ala. 1. 1.80
So. 717, 718, 719. Sentence actually given determines
nature of offense. People v. Brown, 52 Cal.App.2d 428, 126
P.2d 406, 408.
Under U. S. Cr. Code, § 335, 18 U.S.C.A. § 1, offenses
punishable by death or imprisonment for a term exceeding
one year are felonies. Joplin Mercantile Co. v. United
States, C.C.A.Mo., 213 F. 926, 935, Ann.Cas.1916C, 470.
English Law
This term meant originally the state of having forfeited
lands and goods to the crown upon conviction for certain
offenses, and then, by transition, any offense upon convic-
tion for which such forfeiture followed, in addition to
capital or any other punishment prescribed by law; as
distinguished from a "misdemeanor," upon conviction for
which no forfeiture followed. All indictable offenses are
either felonies or misdemeanors, but a material part of the
distinction is taken away by St. 33 & 34 Vict. c. 23, which
abolishes forfeiture for felony. Wharton; 4 B1&Comm. 94;
1 Russ.Cr. 78; Co.Litt. 391; 1 Hawk Pl.Cr. c. 37; U. S. v.
Smith, 5 Wheat., U. S., 153, 5 L.Ed. 57; 1 Bish. New Cr.L.
§ 616.
At early common law the term was applied to describe
the more serious offenses cognizable in the royal courts,
conviction for which entailed forfeiture of life, limb and
chattels and escheat of lands to the felon's lord after a year
and a day in the king's hands. Subsequently, however, the
classification was so greatly enlarged that many offenses
not involving moral turpitude were included therein. In re
Donegan, 282 N.Y. 285, 26 N.E.2d 260, 261.
Feudal Law
An act or offense on the part of the vassal, which cost
him his fee, or in consequence of which his fee fell into the
hands of his lord; that is, became forfeited.' (See Felo-
nia.) Perfidy, ingratitude, or disloyalty to a lord.
FELONY ACT. The statute 33 & 34 Vict. c. 23,
abolishing forfeitures for felony, and sanctioning
the appointment of interim curators and admin-
istrators of the property of felons. Mozley &
Whiteley; 4 Steph. Comm. 10, 459.
FELONY-MURDER RULE. Any homicide com-
mitted while perpetrating or attempting felony is
first-degree murder. Payne v. State, 406 P.2d 922,
924, 81 Nev. 503; Element of legal malice is sup-
plied from the commission of the felony. Corn. v.
Cater, 152 A.2d 259, 261, 396 Pa. 172.
FELTING. In the process of "felting," as ap-
plied to the manufacture of fur felt hats, the fur
fibers become interlocked with the wool fibers, or
with other fibers of fur, for their whole length.
Matteawan Mfg. Co. v. Emmons Bros. Co., C.C.A.
Mass., 253 F. 372, 375. See, also, Werk v. Parker,
C.C.A.Pa., 231 F. 121, 123.
FEMALE. The sex which conceives and gives
birth to young. Also a member of such sex. The
term is generic, but may have the specific mean-
ing of "woman," if so indicated by the context.
State v. Hemm, 82 Iowa, 609, 48 N.W. 971; State
v. Phillips, 26 N.D. 206, 144 N.W. 94, 95, 49 L.R.A.,
N.S., 470, Ann.Cas.1916A, 320.
Unmarried female, is a term descriptive not only of those
who have never married, but also of widows and divorced
women. People v. Weinstock, 27 N.Y.Cr.R. 53, 140 N.Y.S.
453, 458.
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FEODARY
FEME, FEMME. L. Fr. A woman. Ducre v.
Milner, La.App., 146 So. 734, 736. Also, a wife,
as in the phrase "baron et feme" (q. v.).
FEME COVERT. A married woman. Generally
used in reference to the legal disabilities of a mar-
ried woman, as compared with the condition of a
feme sole. Hoker v. Boggs, 63 I11.161.
FEME SOLE. A single woman, including those
who have been married, but whose marriage has
been dissolved by death or divorce, and, for most
purposes, those women who are judicially sepa-
rated from their husbands. Mozley & Whiteley; 2
Steph. Comm. 250. Kirkley v. Lacey, 7 Houst.
Del. 213, 30 A. 994.
FEME SOLE TRADER. In English law, a mar-
ried woman, who, by the custom of London, trades
on her own account, independently of her hus-
band; so called because, with respect to her
trading, she is the same as a feme sole. Jacob;
Cro. Car. 68. The term is applied also to women
deserted by their husbands, who do business as
femes sole. Rhea v. Rhenner, 1 Pet. 105, 7 L.Ed.
72.
The custom was recognized as common law in South
Carolina, but did not extend beyond trading in merchan-
dise; McDaniel v. Cornwell, 1 Hill, S.C., 429; Newbiggin
v. Pillans, 2 Bay, S.C., 164. By statute in several states a
similar custom is recognized, as in Pennsylvania, by act of
Feb. 22, 1718, 48 P.S. § 41. Black v. Tricker, 59 Pa. 13;
People's Sa y . Bank v. Denig, 131 Pa. 241, 18 A. 1083.
FEMICIDE. The killing of a woman. Wharton.
One who kills a woman.
FEMININE. Of or belonging to females.
FEMME COULEUR LIBRE. Up to the time of
Civil War, term applied to all persons not of the
white race, including Indians. Sunseri v. Cas-
sagne, 191 La. 209, 185 So. 1, 4.
FENATIO (or FEONATIC). In forest law, the
fawning of deer; the fawning season. Spelman.
FENCE, v. In old Scotch law, to defend or pro-
tect by formalities.
To "fence a court" was to open it in due form, and inter-
dict all manner of persons from disturbing their proceed-
ings. This was called "fencing," q. d., defending or pro-
tecting the court. Pitcairn, Cr.Law, pt. 1, p. 75.
FENCE, n. A hedge, structure, or partition, erect-
ed for the purpose of inclosing a piece of land, or
to divide a piece of land into distinct portions, or
to separate two contiguous estates. Kimball v.
Carter, 95 Va. 77, 27 S.E. 823, 38 L.R.A. 570; Estes
v. Railroad Co., 63 Me. 309.
An enclosure about a field or other space, or about any
object; especially an enclosing structure of wood, iron or
other materials, intended to prevent intrusion from with-
out or straying from within. Mutual Lumber Co. v. Shep-
pard, Tex.Civ.App., 173 S.W.2d 494, 499.
A colloquial characterization of a receiver of
stolen property. People v. Fishel, 270 Mich. 82,
258 N.W. 217.
FENCE COUNTY. A county where the stock law
has not been adopted. McKenzie v. Powell, 68
Ga.App. 285, 22 S:E.2d 735, 736.
FENCE-MONTH, or DEFENSE-MONTH. In old
English law, a period of time, occurring in the
middle of summer, during which it was unlawful
to hunt deer in the forest, that being their fawn-
ing season. Probably so called because the deer
were then defended from pursuit or hunting.
Manwood; Cowell; Spelman.
FENCING PATENTS. Patents procured in an
effort to broaden the scope of the invention be-
yond the article or process which is actually in-
tended to be manufactured or licensed. Special
Equipment Co. v. Coe, 79 U.S.App.D.C. 133, 144 F.
2d 497, 499.
FENDER. A guard or protection against danger.
Cape May, D. B. & S. P. R. Co. v. Cape May, 59
N.J.L. 396, 36 A. 696, 36 L.R.A. 653. A safety de-
vice sometimes called life guard, on street cars.
Tampa Electric Co. v. Bazemore, 85 Fla. 164, 96
So. 297, 298; Galveston Electric Co. v. Swank,
Tex.Civ.App., 188 S.W. 704, 706.
FENERATION. Usury; the gain of interest;
the practice of increasing money by lending.
Sometimes applied to interest on money lent. See
Colebrook, Dig. Hindu Law, I. 7.
FENGELD. In Saxon law, a tax or imposition,
exacted for the repelling of enemies. Spelman.
FENIAN. A champion, hero, giant. This word,
in the plural, is generally used to signify invaders
or foreign spoilers. The modern meaning of
"Fenian" is a member of an organization of per-
sons of Irish birth, resident in the United States,
Canada, and elsewhere, having for its aim the
overthrow of English rule in Ireland. Webster.
FEOD. The same as feud or fief. 2 Bla. Comm.
45; Spelman.
FEODAL. Belonging to a fee or feud; feudal.
More commonly used by the old writers than
feudal.
FEODAL ACTIONS. Real actions. 3 Bla. Comm.
117.
FEODAL SYSTEM. See Feudal System.
FEODALITY. Fidelity or fealty. Cowell. See
Fealty.
FEODARUM (or FEUDARAM) CONSUETU-
DINES. The customs of feuds. The name of a
compilation of feudal laws and customs made at
Milan in the twelfth century. It is the most an-
cient work on the subject, and was always regard-
ed, on the continent of Europe, as possessing the
highest authority.
FEODARY. An officer of the court of wards,
appointed by the master of that court, under 32
Hen. VIII. c. 26, whose business it was to be pres-
ent with the escheator in every county at the find-
ing of offices of lands, and to give evidence for
the king, as well concerning the value as the ten-
ure; and his office was also to survey the land of
the ward, after the office found, and to rate it.
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FEODATORY
He also assigned the king's widows their dower;
and received all the rents, etc. Abolished by 12
Car. II. c. 24. Wharton; Kennett, Gloss.; Cowell.
FEODATORY, or FEUDATORY. In feudal law,
the grantee of a feod, feud, or fee; the vassal or
tenant who held his estate by feudal service.
Termes de la Ley. Blackstone uses "feudatory!'
2 B1. Comm. 46.
FEODI FIRMA. In old English law, fee-farm
(q. v.).
FEODI FIRMARIUS. The lessee of a fee-farm.
FEODUM. This word (meaning a feud or fee)
is the one most commonly used by the older Eng-
lish law-writers, though its equivalent, "feudum"
(q. v.), is used generally by the more modern
writers and by the feudal law-writers. Litt. § 1;
Spelman.
There were various classes of feoda, among which may
be enumerated the following: Feodum laicum, a lay fee.
Feodum militare, a knight's fee.. Feodum improprium, an
improper or derivative fee. Feodum proprium, a proper
and original fee, regulated by the strict rules of feudal suc-
cession and tenure. Feodum simplex, a simple or pure fee;
fee-simple. Feodum talliatum, a fee-tail. See 2 BI.Comm.
58, 62; Litt §§ 1, 13; Bract. fol. 175; Glan. 13, 23.
In old English law, a seigniory or jurisdiction.
Fleta, lib. 2, c. 63, § 4. A fee, a perquisite or com-
pensation for a service. Fleta, lib. 2, c. 7.
FEODUM ANTIQUUM. A feud which devolved
upon a vassal from his intestate ancestor.
FEODUM EST QUOD QUIS TENET EX QUA-
CUNQUE CAUSA SIVE SIT TENEMENTUM
SIVE REDDITUS. Co. Litt. 1. A fee is that
which any one holds from whatever cause, wheth-
er tenement or rent.
FEODUM NOBILE. A fief for which the tenant
did guard and owed homage. Spelman.
FEODUM NOVUM. A feud acquired by a vassal
himself.
FEODUM SIMPLEX QUIA FEODUM IDEM EST
QUOD ILEREDITAS, ET SIMPLEX IDEM EST
QUOD LEGITIMUM VEL PURUM; ET SIC FEO-
DUM SIMPLEX IDEM EST QUOD HAZEREDITAS
LEGITIMA VEL H1EREDITAS PURA. Litt. § 1.
A fee-simple, so called because fee is the same as
inheritance, and simple is the same as lawful or
pure; and thus fee-simple is the same as a law-
ful inheritance, or pure inheritance.
FEODUM TALLIATUM, I. e., HIEREDITAS IN
QUANDAM CERTITUDINEM LIMITATA. Litt.
§ 13. Fee-tail,  e., an inheritance limited in a
definite descent.
FEOFFAMENTUM. A feoffment. 2 Bl. Comm.
310.
FEOFFARE. To enfeoff; to bestow a fee. The
bestower was called "feoff ator," and the grantee
or feoffee, "feoffatus." 1 Reeve, Hist. Eng. Law,
91.
FEOFFATOR. In old English law, a feoffer or
feoffor; one who gives or bestows a fee; one
who makes a feoffment. Bract. fols. 12b, 81.
FEOFFATUS. In old English law, a feoffee; one
to whom a fee is given, or a feoffment made.
Bract. fols. 17b, 44b.
FEOFFEE. He to whom a fee is conveyed. Litt.
§ 1; 2 Bl. Comm. 20.
FEOFFEE TO USES. A person to whom land
was conveyed for the use of a third party. (The
latter was called "cestui que use.") One holding
the same position with reference to a use that a
trustee does to a trust. 1 Greenl. Cruise, Dig. 333.
He answers to the hares fiduciarius of the Roman
law.
FEOFFMENT. The gift of any corporeal here-
ditament to another (2 Bl. Comm. 310), operat-
ing by transmutation of possession, and requiring,
as essential to its completion, that the seisin be
passed (Watk. Con y . 183), which might be ac-
complished either by investiture or by livery of
seisin. 1 Washb. Real Prop. 33. Thatcher v.
Omans, 3 Pick., Mass., 532; French v. French, 3
N.H. 260. A gift of a freehold interest in land
accompanied by livery of seisin. The essential
part is the livery of seisin, 3 Holdsw. Hist. E. L.
187.
Also the deed or conveyance by which such cor-
poreal hereditament is passed.
A feoffment originally meant the grant of a feud or fee;
that Is, a barony or knight's fee, for which certain services
were due from the feoffee to the feoffor. By custom it
came afterwards to signify also a grant (with livery of
seisin) of a free inheritance to a man and his heirs, refer-
ring rather to the perpetuity of the estate than to the
feudal tenure. 1 Reeve, Eng.Law, 90, 91. It was for ages
the only method (in ordinary use) for conveying the free-
hold of land in possession, but has now fallen in great
measure into disuse, even in England, having been almost
entirely supplanted by some of that class of conveyances
founded on the statute law of the realm. 1 Steph.Comm.
467, 468; Dane, Abr. c. 104; Stearn, Real Act. 2; Green v.
Liter, 8 Cranch, U.S., 229, 3 L. Ed. 545.
FEOFFMENT TO USES. A feoffment of lands
to one person to the use of another.
In such case the feoffee was bound in conscience to hold
the lands according to the use, and could himself derive no
benefit. Sometimes such feoffments were made to the use
of the feoffer. The effect of such conveyance was entirely
changed by the statute of uses. See Wms.R.P., 6th Ed.,
155; 2 Sand.Us. 13; Watk.Conv. 288.
FEOFFOR. The person making a feoffment, or
enfeoffing another in fee. 2 Bl. Comm. 310; Litt.
§§ 1, 57.
FEOH. This Saxon word meant originally cattle,
and thence property or money, and, by a second
transition, wages, reward, or fee. It was probab-
ly the original form from which the words "feod,"
"feudum," "fief," "feu," and "fee" (all meaning a
feudal grant of land) have been derived. Spel-
man, Feuds.
FEONATIO, In forest law, the fawning season
of deer.
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FERRY
FEORME. A certain portion of the produce of
the land due by the grantee to the lord according
to the terms of the charter. Spel. Feuds, c. 7.
FERZE BESTIIE. Wild beasts.
FERIE NATURIE, Lat. Of a wild nature or
disposition.
Animals which are by nature wild are so designated, by
way of distinction from such as are naturally tame, the lat-
ter being called "dotnitce natu,rce." Fleet v. Hegeman, 14
Wend., N.Y., 43; State v. Taylor, 27 N.J.L. 119, 72 Am.
Dec. 347; Gillet v. Mason, 7 Johns., N.Y., 17.
FERCOSTA. Ital. A kind of small vessel or
boat. Mentioned in old Scotch law, and called
"fercost." Skene.
FERDELLA TERRIE. A fardel-land; ten acres;
or perhaps a yard-land. Cowell.
F'ERDFARE. Sax. A summons to serve in the
army. An acquittance from going into the army.
Fleta, lib. 1, c. 47, § 23.
FERDINGUS. A term denoting, apparently, a
freeman of the lowest class, being named after
the cotsetti. Anc. Inst. Eng.
FERDWITE. In Saxon law, an acquittance of
manslaughter committed in the army; also a
fine imposed on persons for not going forth on a
military expedition. Cowell.
FERIA. In old English law, a weekday; a holi-
day; a day on which process could not be served;.
a fair; a ferry. Cowell; Du Cange; Spelman;
4 Reeve, Hist. Eng. Law 17.
FERLIE. In Roman law, holidays; generally
speaking, days or seasons during which free-born
Romans suspended their political transactions and
their lawsuits, and during which slaves enjoyed
a cessation from labor.
All ferice were thus dies nefasti. All fence were divided
into two classes,—"ferice publicce" and "ferice privatce."
The latter were only observed by single families or individ-
uals, in commemoration of some particular event which had
been of importance to them or their ancestors. Smith,
Diet. Anti q.
Numerous festivals were called by this name in the early
Roman empire. In the later Roman empire the single days
occurring at intervals of a week apart, commencing with
the seventh day of the ecclesiastical year, were so called.
Du Cange.
FERIAL DAYS. Originally and properly, days
free from labor and pleading; holidays. In stat-
ute 27 Hen. VI. c. 5, working-days; weekdays,
as distinguished from Sunday. Cowell.
FERITA. In old European law, a wound; a
stroke. Spelman.
FERLING. In old records, the fourth part of a
penny; also the quarter of a ward in a borough.
FERLINGATA. A fourth part of a yard-land.
FERLINGUS, or FERLINGUM. A furlong. Co.
Litt. 5 b.
FERM, or FEARM. A house or land, or both, let
by lease. Cowell.
FERME. A farm; a rent; a lease; a house or
land, or both, taken by indenture or lease. Plowd.
195; Vicat; Cowell. See Farm.
FERMENTATION. A decomposition produced in
an organic substance by the physiological action
of a living organism, or by certain unorganized
agents. U. S. v. Dodson, D.C.Cal., 268 F. 397, 403.
FERMENTED LIQUORS. Beverages produced
by, or which have undergone, a process of alco-
holic fermentation, to which they owe their intoxi-
cating properties, including beer, wine, hard cider,
and the like, but not spirituous or distilled liquors.
State v. Lemp, 16 Mo. 391; State v. Biddle, 54 N.
H. 383; People v. Foster, 64 Mich. 715, 31 N.W.
596; Hill v. State, 174 Md. 137, 197 A. 795, 799.
FERMER, FERMOR. A lessee; a farmer. One
who holds a term, whether of lands or an incor-
poreal right, such as customs or revenue.
FERMIER. In French law, one who farms any
public revenue.
FERMISONA. In old English law, the winter
season for killing deer.
FERMORY. In old records, a place in monas-
teries, where they received the poor, (hospicio ex-
cipiebant,) and gave them provisions (ferm, fir-
ma.) Spelman. Hence the modern infirmary,
used in the sense of a hospital.
FERNIGO. In old English law, a waste ground,
or place where fern grows. Cowell.
FERRATOR. A farrier (q. v.).
FERRI. In the civil law, to be borne; that is on
or about the person. This was distinguished from
portari, (to be carried,) which signified to be car-
ried on an animal. Dig. 50, 16, 235.
FERRIAGE. The toll or fare paid for the trans-
portation of persons and property across a ferry.
Literally speaking, it is the price or fare fixed by law
for the transportation of the traveling public, with such
goods and chattels as they may have with them, across a
river, bay, or lake. People v. San Francisco & A. R. Co.,
35 Cal. 606.
FERRIFODINA. In old pleading, an iron mine.
Townsh.Pl. 273.
FERRUERE, or FERRURA. The shoeing of
horses. Kelham. See Ferrum.
FERRUM. Iron. In old English law, a horse-
shoe. Ferrura, shoeing of horses.
FERRY. A place of transit across a river or arm
of the sea. Woolr.Ways 217. In law it is treated
as a franchise, and defined as the exclusive right
to carry passengers across a river, or arm of the
sea, from one vill to another, or to connect a con-
tinuous line of road leading from township or vill
to another. Canadian Pac. Ry. Co. v. U..S., C.C.A.
Wash., 73 F.2d 831, 832.
A continuation of the highway from one side
of the water over which it passes to the other, for
transportation of passengers or of travelers with
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FERRY
their teams and vehicles and such other property
as they may carry or have with them. U. S. v.
Puget Sound Na y . Co., D.C.Wash., 24 F.Supp. 431,
432.
A liberty to have a boat on a stream, river, arm
of the sea, lake, or other body of water for the
transportation of men, horses, and vehicles with
their contents, for a reasonable toll. Sometimes
limited to the landing place. State Highway Com-
mission v. Smith, 250 Ky. 269, 62 S.W.2d 1044.
It may be said to be necessary service by specially con-
structed boat to carry passengers and property across rivers
or bodies of water from place on one shore to point con-
veniently opposite on other shore and continuation of high-
way making connection with thoroughfare at each termi-
nus. U. S. v. Canadian Pac. Ry. Co., D.C.Wash., 4 F.Supp.
851, 853. It comprises not merely the exclusive privilege of
transportation, but also the use for that purpose of the
respective landings, with the outlets therefrom. Hale v.
Record, 74 Old. 77, 176 P. 756, 757.
A public ferry is one to which all the public have the
right to resort, for which a regular fare is established, and
the ferryman is a common carrier, bound to take over all
who apply, and bound to keep his ferry in operation and
good repair. Hudspeth v. Hall, 111 Ga. 510, 36 S.E. 770;
Broadnax v. Baker, 94 N.C. 681, 55 Am.Rep. 633.
A private ferry is one mainly for the use of the owner,
and though he may take pay for ferriage, he does not fol-
low it as a business. His ferry is not open to the public
at its demand, and he may or may not keep it in operation.
Hudspeth v. Hall, supra; St. Paul Fire & Marine Ins. Co.
v. Harrison, 140 Ark. 158, 215 S.W. 698.
FERRY FRANCHISE. The public grant of a
right to maintain a ferry at a particular place; a
right conferred to land at a particular point and
secure toll for the transportation of persons and
property from that point across the stream. Mills
v. St. Clair County, 7 Ill. 208. A grant to a named
person empowering him to continue an interrupt-
ed land highway over the interrupting waters.
U. S. v. Puget Sound Na y . Co., D.C.Wash., 24 F.
Supp. 431, 432.
FERRYBOAT. A vessel traversing any of the
waters of the state between two constant points
regularly employed for the transfer of passengers
and freight, authorized by law so to do, and also
any boat employed as a part of the system of a
railroad for the transfer of passengers and freight
plying at regular and stated periods between two
points. Pol.Code Cal. § 3643; Lake Tahoe Ry. &
Transp. Co. v. Roberts, 168 Cal. 551, 143 P. 786,
789, Ann.Cas.1916E, 1196.
FERRYMAN. One employed in taking persons
across a river or other stream, in boats or other
contrivances, at a ferry. Covington Ferry Co. v.
Moore, 8 Dana, Ky., 158; State v. Clarke, 2 Mc-
Cord, S.C., 48, 13 Am.Dec. 701.
FESTA IN CAPPIS. In old English law, grand
holidays, on which choirs wore caps. Jacob.
FESTINATIO JUSTITLE EST NOVERCA IN-
FORTUNII. Hob. 97. Hasty justice is the step-
mother of misfortune.
FESTING–MAN. In old English law, a bonds-
man; a surety; a frank-pledge, or one who was
surety for the good behavior of another. Monas-
teries enjoyed the privilege of being "free from
festing-men," which means that they were "not
bound for any man's forthcoming who should
transgress the law." Cowell. See Frank-Pledge.
FESTING--PENNY. Earnest given to servants
when hired or retained. The same as arles-penny.
Cowell.
FESTINUM REMEDIUM. Lat. A speedy rem-
edy.
A term applied to those cases where the remedy for the
redress of an injury is given without any unnecessary
delay. Bacon, Abr. Assise, A. The action of dower is
festinum remedium. The writ of assise was also thus char-
acterized (in comparison with the less expeditious remedies
previously available) by the statute of Wdstminster 2 (13
Edw. I. c. 24.)
FESTUCA. In Frankish law, a rod or staff or (as
described by other writers) a stick, on which im-
precatory runs were cut, which was used as a gage
or pledge of good faith by a party to a contract,
or for symbolic delivery in the conveyance or
quit-claim of land, before a court of law, anterior
to the introduction of written documents by the
Romans. 2 Poll. & Maitl. 86, 184, 190; Maitl.
Domesday Book and Beyond 323.
FESTUM. A feast, holiday, or festival. Festum
stultorum, the feast of fools.
FETICIDE. In medical jurisprudence, destruc-
tion of the fetus; the act by which criminal abor-
tion is produced. 1 Beck, Med.Jur. 288; Guy, Med.
Jur. 133. See, also, Prolicide.
FETTERS. Chains or shackles for the feet; irons
used to secure the legs of convicts, unruly pris-
oners, etc. Similar chains securing the wrists
are called "handcuffs."
FEU. In Scotch law, a holding or tenure where
the vassal, in place of military service, makes his
return in grain or money. Distinguished from
"wardholding," which is the military tenure of
the country. Bell; Erskine, Inst. lib.  tit. 3, §
7.
FEU ANNUALS. In Scotch law, the reddendo,
or annual return from the vassal to a superior
in a feu holding. Wharton, Diet., 2d Lond.Ed.
FEU ET LIEU. Fr. In old French and Canadian
law, hearth and home. A term importing actual
settlement upon land by a tenant.
FEU HOLDING. A holding by tenure of render-
ing grain or money in place of military service.
Bell.
FEUAR. In Scotch law, the tenant or vassal of
a feu; a feu-vassal. Bell.
FEUD. Feudal law. An estate in land held of
a superior on condition of rendering him services.
2 Bl.Comm. 105. An inheritable right to the use
and occupation of lands, held on condition of ren-
dering services to the lord or proprietor, who him-
self retains the property in the lands. See Spel.
Feuds, c. 1.
In this sense the word is the same as "feod,"
"feodum," "feudum," "fief," or "fee." 1 Sullivan
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FEUDORUM
Lect. 128; 1 Spence, Eq.Jur. 34; Dalrymple, Feud.
Pr. 99; 1 Washb.R.P. 18; Mitch.R.P. 80.
Saxon and Old German Law
An enmity, or species of private war, existing
between the family of a murdered man and the
family of his slayer. In Scotland and the north
of England, a combination of all the kin to re-
venge the death of any of the blood upon the
slayer and all his race. Termes de la Ley; Whi-
shaw. See Deadly Feud; Faida.
Military Feuds
The genuine or original feuds which were in the
hands of military men, who performed military
duty for their tenures.
FEUDA. Feuds or fees.
FEUDAL. Pertaining to feuds or fees; relat-
ing to or growing out of the feudal system or
feudal law; having the quality of a feud, as dis-
tinguished from "allodial."
FEUDAL ACTIONS. An ancient name for real
actions, or such as concern real property only. 3
Bl.Comm. 117.
FEUDAL COURTS. In the 12th century a lord
qua lord had the right to hold a court for his
tenants.
In the 13th century, they became of less importance and
for three reasons: The feudal principle would have led to
a series of courts one above the other, and the dominions
of the large landowners were usually scattered, so that
great feudal courts became impossible. The growth of the
jurisdiction of the king's court removed the necessity for
feudal courts. All the incidents of the feudal system came
to be regarded in a commercial spirit-as property. Its
jurisdiction became merely appendant to landowning. 1
Holdsw.Hist.E.L. 64.
FEUDAL LAW. The body of jurisprudence re-
lating to feuds; the real-property law of the feud-
al system; the law anciently regulating the prop-
erty relations of lord and vassal, and the creation,
incidents, and transmission of feudal estates.
The body of laws and usages constituting the "feudal
law" was originally customary and unwritten, but a com-
pilation was made in the twelfth century, called "Feodarum
Consuetudines," which has formed the basis of later
digests. The feudal law prevailed over Europe from the
twelfth to the fourteenth century, and was introduced into
England at the Norman Conquest, where it formed the
entire basis of the law of real property until comparatively
modern times. Survivals of the feudal law, to the present
day, so affect and color that branch of jurisprudence as to
require a certain knowledge of the feudal law in order to
the perfect comprehension of modern tenures and rules of
real-property law.
FEUDAL POSSESSION. The equivalent of "sei-
sin" under the feudal system.
FEUDAL SYSTEM. The system of feuds. A po-
litical and social system which prevailed through-
out Europe during the eleventh, twelfth, and thir-
teenth centuries, and is supposed to have grown,
out of the peculiar usages and policy of the Teu-
tonic nations who overran the continent after the
fall of the Western Roman Empire, as developed
by the exigencies of their military domination,
and possibly furthered by notions taken from the
Roman jurisprudence,
It was introduced into England, in its completeness, by
William I., A. D. 1085, though it may have existed in a
rudimentary form among the Saxons before the Conquest.
It formed the entire basis of the real-property law of Eng-
land in medieval times; and survivals of the system,- in
modern days, so modify and color that branch of jurispru-
dence, both in England and America, that many of its
principles require for their complete understanding a
knowledge of the feudal system. The feudal system orig-
inated in the relations of a military chieftain and his fol-
lowers, or king and nobles, or lord and vassals, and espe-
cially their relations as determined by the bond established
by a grant of land from the former to the latter. From
this it grew into a complete and intricate complex of rules
for the tenure and transmission of real estate, and of cor-
related duties and services; while, by tying men to the
land and to those holding above and below them, it created
a close-knit hierarchy of persons, and developed an aggre-
gate of social and political institutions. For an account of
the feudal system in its juristic relations, see 2 Bl.Comm.
44; 1 Steph.Comm. 160; 3 Kent, Comm. 487; Spel.Feuds;
Litt.Ten.; Su11.Lect. ; Spence, Eq.Jur.; 1 Washb.Real.
Prop. 15; Dalr.Feu.Prop. For its political and social rela-
tions, see Hall, Middle Ages; Maine, Anc.Law; Rob. Car.
V.; Montesq. Esprit des Lois, bk. 30; Guizot, Hist.Civili-
zation.
FEUDAL TENURES. The tenures of real estate
under the feudal system, such as knight-service,
socage, villenage, etc.
FEUDALISM. The feudal system; the aggregate
of feudal principles and usages.
It is a vague term to describe a congeries of customs and
legal relations by no means uniform throughout Europe
and never static. But feudalism had one basic character-
istic traceable through all its variations: It rested on
relations to land, the primary factor in a relatively primi-
tive agrarian civilization. United States v. Forness, C.C.A.
N.Y., 125 F.2d 928, 933.
FEUDALIZE. To reduce to a feudal tenure; to
conform to feudalism. Webster.
FEUDARY. A tenant who holds by, feudal ten-
ure, (also spelled "feodatory" and "feudatory.")
Held by feudal service. Relating to feuds or feu-
dal tenures.
FEUDBOTE. A recompense for engaging in a
feud, and the damages consequent, it having been
the custom in ancient times for all tale kindred to
engage in their kinsman's quarrel. Jacob.
FEUDE. An occasional early form of "feud" in
the sense of private war or vengeance. Termes
de la Ley. See Feud.
FEUDIST. A writer on feuds, as Cujacius, Spel-
man, etc.
FEUDO. In Spanish law, feud or fee. White,
New Recop. b. 2, tit. 2, c. 2.
FEUDORUM LIBER. The book of feuds.
This was a compilation of feudal law, prepared by order
of the emperor Frederick I., and published at Milan in
1170. It comprised five books, of which only the first two
are now extant with fragmentary portions of the others,
printed at the end of modern editions of the Corpus Juris
Civilis. Giannone, b. 13, c. 3; Cruise, Dig. prel. diss. c.
1, 31.
FEUDORUM LIBEL The Books of Feuds pub-
lished during the reign of Henry  about the
year 1152.
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FEUDORUM
The particular customs of Lombardy as to feuds began
about the year 1152, to be the standard of authority to
other nations, by reason of the greater refinement with
which that branch of learning had been there cultivated.
This compilation was probably known in England, but does
not appear to have had any other effect than to influence
English lawyers to the more critical study of their own
tenures, and to induce them to extend the learning of real
property so as to embrace more curious matter of similar
kind. 2 Reeves, Hist.Eng.Law, 55.
FEUDUM. L. Lat. A feud, fief, or fee. A right
of using and enjoying forever the lands of an-
other, which the lord grants on condition that
the tenant shall render fealty, military duty, and
other services. Spelman. It is not properly the
land, but a right in the land.
This form of the word is used by the feudal writers. The
earlier English writers generally prefer the form feodum.
There was an older word feum.
Its use by the Normans is exceedingly obscure. "Feudal"
was not in their vocabulary. Usually it denoted a stretch
of land, rarely a tenure or mass of rights. It came to be
applied to every person who had heritable rights in land.
Maitl.Domesday Book and Beyond 152.
FEUDUM ANTIQUUM. An ancient feud or fief;
a fief descended to the vassal from his ancestors.
2 Bl.Comm. 212, 221. A fief which ancestors had
possessed for more than four generations. Spel-
man; Priest v. Cummings, 20 Wend. N.Y. 349.
FEUDUM APERTUM. An open feud or fief; a
fief resulting back to the lord, where the blood of
the person last seised was utterly extinct and
gone or where the tenant committed a crime, or
gave other legal cause. Spelman; 2 Bl.Comm.
245.
FEUDUM FRANCUM. A free feud. One which
was noble and free from talliage and other sub-
sidies to which the plebeia feuda (vulgar feuds)
were subject. Spelman.
FEUDUM HAUBERTICUM. A fee held on the
military service of appearing fully armed at the
ban and arriere ban. Spelman.
FEUDUM IMPROPRIUM. An improper or deriva-
tive feud or fief. 2 Bl.Comm. 58.
FEUDUM INDIVIDUUM. An indivisible or im-
partible feud or fief; descendible to the eldest son
alone. 2 Bl.Comm. 215.
FEUDUM LAICUM. A lay fee.
FEUDUM LIGIUM. A liege feud or fief; a fief
held immediately of the sovereign; one for which
the vassal owed fealty to his lord against all per-
sons. 1 Bl.Comm. 367; Spelman.
FEUDUM MATERNUM. A maternal fief; a fief
descended to the feudatory from his mother. 2
Bl.Comm. 212.
FEUDUM MILITARE. A knight's fee, held by
knight service and esteemed the most honorable
species of tenure. 2 Bla.Comm. 62.
FEUDUM NOBILE. A fee for which the tenant
did guard and owed fealty and homage. Spel-
man.
FEUDUM NOVUM. A new feud or fief; a fief
which began in the person of the feudatory, and
did not come to him by succession. Spelman; 2
Bl.Comm. 212; Priest v. Cummings, 20 Wend. N.Y.
349.
FEUDUM NOVUM UT ANTIQUUM. A new fee
held with the qualities and incidents of an ancient
one. 2 Bl.Comm. 212.
FEUDUM PATERNUM. A fee which the paternal
ancestors had held for four generations. Calvin.;
Spelman. One descendible to heirs on the pater-
nal side only. 2 Bl.Comm. 223. One which might
be held by males only. Du Cange.
FEUDUM PROPRIUM. A proper, genuine, and
original feud or fief; being of a purely military
character, and held by military service. 2 Bl.
Comm. 57, 58.
FEUDUM TALLIATUM. A restricted fee. One
limited to descend to certain classes of heirs. 2
Bl.Comm. 112, note; 1 Washb. Real Prop. 66;
Spelman.
FEUM. An older form of feudum. Maitl. Domes-
day Book and Beyond 152.
FEW. Not many; of small number. U. S. V.
Margolis, C.C.A.N.J., 138 F.2d 1002, 1003. An in-
definite expression for a small or limited num-
ber. Pittsburgh, C., C. & St. L. Ry. Co. v. Brod-
erick, 56 Ind.App. 58, 102 N.E. 887, 893. Indicating
a small number of units or individuals which
constitute a whole. Provident Loan Bank v. Par-
ham, 137 Tenn. 483, 194 S.W. 570. A relative term
of great elasticity of meaning. Klann v. Minn,
161 Wis. 517, 154 N.W. 996.
FF. A Latin abbreviation for "Fragmenta," des-
ignating the Digest or Pandects in the Corpus
Juris Civilis of Justinian; so called because that
work is made up of fragments or extracts from
the writings of numerous jurists. Mackeld. Rom.
Law, § 74.
FI. FA. An abbreviation for fieri facias, (which
see.)
FIANCER. L. Fr. To pledge one's faith. Kel-
ham.
FIANZA. Sp. In Spanish law, trust, confidence,
and correlatively a legal duty or obligation aris-
ing therefrom.
The term is sufficiently broad in meaning to include both
a general obligation and a restricted liability under a single
instrument. Martinez v. Runkle, 57 N.J.L. 111, 30 A. 593.
But in a special sense, it designates a surety or guarantor,
or the contract or engagement of suretyship; the contract
by which one person engages to pay the debt or fulfil the
obligations of another if the latter should fail to do so.
FIAR. In Scotch law, he that has the fee or feu.
The proprietor is termed "flar," in contradistinc-
tion to the life renter. 1 Karnes, Eq. Pref. One
whose property is charged with a life-rent. Where
a right is taken to a husband and wife in conjunct
fee and life-rent, the husband, as the persona
dignior, is the only flan Ersk. Prin. 421.
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FICTITIOUS
FIARS PRICES. The value of grain in the dif-
ferent counties of Scotland, fixed yearly by the
respective sheriffs, in the month of February, with
the assistance of juries. These regulate the pric-
es of grain stipulated to be sold at the fiar prices,
or when no price has been stipulated. Ersk. 1, 4,
6.
FIAT. (Lat. "Let it be done.") In English prac-
tice, a short order or warrant of a judge or magis-
trate directing some act to be done; an authority
issuing from some competent source for the doing
of some legal act. See 1 Tidd Pr. 100.
One of the proceedings in the English bankrupt
practice, being a power, signed by the lord chan-
cellor, addressed to the court of bankruptcy, au-
thorizing the petitioning creditor to prosecute his
complaint before it. 2 Steph.Comm. 199. By the
statute 12 & 13 Vict. c. 116, fiats were abolished.
Joint fiat. In English law, a fiat in bankruptcy,
issued against two or more trading partners.
FIAT JUSTITIA. Let justice be done. On a pe-
tition to the king for his warrant to bring a writ
of error in parliament, he writes on the top of the
petition, "Fiat justitia," and then the writ of error
is made out, etc. Jacob.
FIAT JUSTITIA, RUAT C(ELUM. Let right be
done, though the heavens should fall. Branch,
Princ. 161.
FIAT PROUT FLERI CONSUEVIT, (NIL TEMERE
NOVANDUM.) Let it be done as it hath used to
be done, (nothing must be rashly innovated.)
Jenk. Cent. 116, case 39; Branch, Princ.
FIAT UT PETITUR. Let it be done as it is asked.
A form of granting a petition.
FLAUNT. An order; command. See Fiat.
FICTIO. In Roman law, a fiction; an assumption
or supposition of the law.
"Fictio" in the old Roman law was properly a term of
pleading, and signified a false averment on the part of the
plaintiff which the defendant was not allowed to traverse;
as that the plaintiff was a Roman citizen, when in truth
he was a foreigner. The object of the fiction was to give
the court jurisdiction. Maine, Anc.Law, 25.
FICTIO CEDIT VERITATI. FICTIO JURIS NON
EST UBI VERITAS. Fiction yields to truth.
Where there is truth, fiction of law exists not 11
Co. 51.
FICTIO EST CONTRA VERITATEM, SED PRO
VERITATE HABETUR. Fiction is against the
truth, but it is to be esteemed truth.
FICTIO JURIS NON EST UBI VERITAS. Where
truth is, fiction of law does not exist.
FICTIO LEGIS INIQUE OPERATUR ALICUI
DAMNUM VEL INJURIAM. A legal fiction does
not properly work loss or injury. 2 Coke, 35; 3
Coke, 36; Broom, Max. 129; Gilb. 223. Fiction of
law is wrongful if it works loss or injury to any-
one.
FICTIO LEGIS NEMINEM L/EDIT. A fiction of
law injures no one. 2 Rolle, 502: 3 Bl.Comm. 43;
Low v. Little, 17 Johns. N.Y. 348.
FICTION. An assumption or supposition of law
that something which is or may be false is true,
or that a state of facts exists which has never
really taken place. New Hampshire Strafford
Bank v. Cornell, 2 N.H. 324; Hibberd v. Smith,
67 Cal. 547, 4 P. 473, 56 Am.Rep. 726; Murphy v.
Murphy, 190 Iowa 874, 179 N.W. 530, 533. An as-
sumption, for purposes of justice, of a fact that
does not or may not exist. Dodo v. Stocker, 74
Colo. 95, 219 P. 222, 223.
A rule of law which assumes as true, and will
not allow to be disproved, something which is
false, but not impossible. Best, Ev. 419.
These assumptions are of an innocent or even beneficial
character, and are made for the advancement of the ends
of justice. They secure this end chiefly by the extension of
procedure from cases to which it is applicable to other cases
to which it is not strictly applicable, the ground of inap-
plicability being some difference of an immaterial char-
acter. Brown.
Fictions are to be distinguished from presumptions of
law. By the former, something known to be false or unreal
is assumed as true ; by the latter, an inference is set up,
which may be and probably is true, but which, at any rate,
the law will not permit to be controverted. It may also
be said that a presumption is a rule of law prescribed for
the purpose of getting at a certain conclusion, though
arbitrary, where the subject is intrinsically liable to doubt
from the remoteness, discrepancy, or actual defect of
proofs.
Fictions are also to be distinguished from estoppels; an
estoppel being the rule by which a person is precluded
from asserting a fact by previous conduct inconsistent
therewith on his own part or the part of those under whom
he claims, or by an adjudication upon his rights which he
cannot be allowed to question.
Best distinguishes legal fictions from presumptions juris
et de jure, and divides them into three kinds,—affirmative
or positive fictions, negative fictions, and fictions by rela-
tion. Best, Pres. p. 27, 24.
FICTION OF LAW. Something known to be false
is assumed to be true. Ryan v. Motor Credit Co.,
130 N.J.Eq. 531, 23 A.2d 607, 621.
FICTITIOUS. Founded on a fiction; having the
character of a fiction; pretended; counterfeit.
People v. Carmona, 79 Cal.App. 159, 251 P. 315,
317; State v. Tinnin, 64 Utah 587, 232 P. 543, 545,
43 A.L.R. 46. Feigned, imaginary, not real, false,
not genuine, nonexistent. Bill alleging that
amount of mortgage sought to be canceled was
"fictitious" held to allege that mortgage was with-
out consideration. Kinney v. Kinney, 230 Ala. 558,
161 So. 798, 800. Arbitrarily invented and set up,
to accomplish an ulterior object. West Virginia
Mortgage & Discount Corporation v. Newcomer,
101 W.Va. 292, 132 S.E. 748, 749.
FICTITIOUS ACTION. An action brought for
the sole purpose , of obtaining the opinion of the
court on a point of law, not for the settlement
of any actual controversy between the parties.
Smith v. Junction Ry. Co., 29 Ind. 551.
FICTITIOUS NAME. A counterfeit, feigned, or
pretended name taken by a person, differing in
some essential particular from his true name,
(consisting of Christian name and patronymic,)
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FICTITIOUS
with the implication that it is meant to deceive or
mislead. Pollard v. Fidelity F. Ins. Co., 1 S.D. 570,
47 N.W. 1060; Carlock v. Cagnacci, 88 Cal. 600,
26 P. 597; Mangan v. Schuylkill County, 273 Pa.
310, 116 A. 920, 921.
FICTITIOUS PAYEE. Negotiable instrument is
drawn to fictitious payee whenever payee named
in it has no right to it, and its maker does not in-
tend that such payee shall take anything by it;
whether name of payee used by maker is that of
person living or dead or one who never existed is
immaterial. Goodyear Tire & Rubber Co. of Cali-
fornia v. Wells Fargo Bank & Union Trust Co.,
1 Cal.App.2d 694, 37 P.2d 483.
"Fictitiousness" depends on the intention to pay,
rather than on the payee's existence. Norton v.
City Bank & Trust Co., C.C.A.Va., 294 F. 839, 844;
Mueller & Martin v. Liberty Ins. Bank, 187 Ky.
44, 218 S.W. 465, 466.
FICTITIOUS PERSON. A person, who, though
named as payee in a check has no right to it or its
proceeds because the drawer of it so intended.
Johnston v. Exchange Nat. Bank of Tampa, 152
Fla. 228, 9 So.2d 810, 811, 812.
FICTITIOUS PLAINTIFF. A person appearing
in the writ or record as the plaintiff in a suit, but
who in reality does not exist, or who is ignorant
of the suit and of the use of his name in it. It is
a contempt of court to sue in the name of a ficti-
tious party. See 4 Bl.Comm. 134.
FICTITIOUS PROMISE. See Promise.
FIDE-COMMISSARY. A term derived from the
Latin "fidei-commissarius," and occasionally used
by writers on equity jurisprudence as a substitute
for the law French term "cestui, que trust," as
being more elegant and euphonious. See Brown
v. Brown, 83 Hun, 160, 31 N.Y.S. 650.
FIDEI-COMMISSARIUS. In the civil law, this
term corresponds nearly to our "cestui que trust?'
It designates a person who has the real or bene-
ficial interest in an estate or fund, the title or
administration of whieh is temporarily confided to
another. See Story, Eq.Jur. § 966; 1 Greenl.Cruise,
Dig. 295.
According to Du Cange, the term was some-
times used to denote the executor of a will.
FIDEI-COMMISSUM. In the civil law, a species
of trust; being a gift of property (usually by will)
to a person, accompanied by a request or direction
of the donor that the recipient will transfer the
property to another, the latter being a person not
capable of taking directly under the will or gift.
In re Courtin, 144 La. 971, 81 So. 457, 459; Suc-
cession of Reilly, 136 La. 347, 67 So. 27, 33; Gor-
tario v. Cantu, 7 Tex. 44.
FIDE-JUBERE. In the civil law, to order a thing
upon one's faith; to pledge one's self; to become
surety for another. Fide-jubes? Fide-jubeo: Do
you pledge yourself ? I do pledge myself. Inst.
3, 16, L One of the forms of stipulation.
FIDE-JUSSIO. An act by which any one binds
himself as an additional security for another. This
giving security does not destroy the liability of the
principal, but adds to the security of the surety.
Vicat, Voc.Jur.; Hallifax, Annals, b. 2, c. 16, n. 10.
FIDE-JUSSOR. In Roman law, a guarantor; one
who becomes responsible for the payment of an-
other's debt, by a stipulation which binds him to
discharge it if the principal debtor fails to do so.
Mackeld.Rom.Law, § 452; 3 Bl.Comm. 108. He dif-
fers from a co-obligor in this, that the latter is
equally bound to a debtor, with his principal, while
the former is not liable till the principal has failed
to fulfil his engagement; Dig. 12, 4, 4; 16, 1, 13;
24, 3, 64; 38, 1, 37; 50, 17, 110; 6, 14, 20; Hall,
Pr. 33; Dunl.Adm.Pr. 300; Clerke, Prax. tit. 63.
The obligation of the fide-jussor was an accessory con-
tract; for, if the principal obligation was not previously
contracted, his engagement then took the name of man-
date. Lec. Elem. § 872; Code Nap. 2012.
The sureties taken on the arrest of a defendant, in the
court of admiralty, were formerly denominated "fide jus-
sors." 3 Bl.Comm. 108.
FIDE-PROMISSOR. See Fide-Jussor.
FIDELITAS. Fealty; fidelity. See Fealty.
FIDELITAS. DE NULLO TENEMENTO, QUOD
TENETUR AD TERMINUM, FIT HOMAGII; FIT
TAMEN INDE FIDELITATIS SACRAMENTUM.
Co.Litt. 676. Fealty. For no tenement which is
held for a term is there the oath of homage, but
there is the oath of fealty.
FIDELITY BOND. Contract of fidelity insurance.
Runcie v. Corn Exchange Bank Trust Co., Sup., 6
N.Y.S.2d 616, 620. A guaranty of personal honesty
of officer furnishing indemnity against his defalca-
tion or negligence. Phillips v. Board of Education
of Pineville, 283 Ky. 173, 140 S.W.2d 819, 822.
FIDELITY INSURANCE. See Insurance.
FIDEM MENTIRI. Lat. To betray faith or feal-
ty. A term used in feudal and old English law of
a feudatory or feudal tenant who does not keep
that fealty which he has sworn to the lord. Leg.
Hen. L c. 53.
FIDES. Lat. Faith; honesty; confidence; trust;
veracity; honor. Occurring in the phrases "bona
fides" (good faith), "mala fides" (bad faith), and
"uberrima fides," (the utmost or most abundant
good faith.)
FIDES EST OBLIGATIO CONSCEENTLE ALICU-
JUS AD INTENTIONEM ALTERIUS. Bacon. A
trust is an obligation of conscience of one to the
will of another.
FIDES FACTA. Among the Franks and Lom-
bards undertakings were guaranteed by "making
one's faith"—fides facta. This was symbolized by
such formal acts as the giving of a rod; in sure-
tyship giving the "festuca" or "vadium." 2
Holdsw.Hist.E.L. 73.
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FIDUCIARY
FIDES SERVANDA EST. Faith must be ob-
served. An agent must not violate the confidence
reposed in him. Story, Ag. § 192; Coolidge v.
Brigham, 1 Metc., Mass., 551.
FIDES SERVANDA EST; SIMPLICITAS JURIS
GENTIUM PRIEVALEAT. Faith must be kept;
the simplicity of the law of nations must prevail.
A rule applied to bills of exchange as a sort of
sacred instruments. 3 Burrows, 1672; Story, Bills,
§ 15.
FU)UCIA. In Roman law, an early form of mort-
gage or pledge, in which both the title and posses-
sion of the property were passed to the creditor by
a formal act of sale, (properly with the solemni-
ties of the transaction known as mancipatio,) there
being at the same time an express or implied
agreement on the part of the creditor to reconvey
the property by a similar act of sale provided the
debt was ,duly paid; but on default of payment,
the property became absolutely vested in the cred-
itor without foreclosure and without any right of
redemption.
In course of time, this form of security gave place to that
known as hypotheca, while the contemporary contract of
*gnus or pawn underwent a corresponding development.
See Mackeld.Rom.Law, § 334; Tomk. & J. Mod.Rom.Law,
182; Hadley, Rom.Law, 201-203; Pothier, Pand. tit.
"Fiducia."
FIDUCIAL. An adjective having the same mean-
ing as "fiduciary;" as, in the phrase "public or
fiducial office." Ky.St. § 3752; Moss v. Rowlett,
112 Ky. 121, 65 S.W. 153.
FIDUCIARIUS HIERES. See Fiduciary Heir.
FIDUCIARIUS TUTOR. In Roman law, the eld-
er brother of an emancipated pupillus, whose fa-
ther had died leaving him still under fourteen
years of age.
FIDUCIARY. The term is derived from the Ro-
man law, and means (as a noun) a person holding
the character of a trustee, or a character analo-
gous to that of a trustee, in respect to the trust
and confidence involved in it and the scrupulous
good faith and candor which it requires. Svanoe
v. Jurgens, 144 Ill. 507, 33 N.E. 955; Stoll v. King,
8 How.Prac.,N.Y., 299. A person having duty, cre-
ated by his undertaking, to act primarily for an-
other's benefit in matters connected with such un-
dertaking. Haluka v. Baker, 66 Ohio App. 308, 34
N.E.2d 68, 70. As an adjective it means of the
nature of a trust; having the characteristics of
a trust; analogous to a trust; relating to or
founded upon a trust or confidence.
FIDUCIARY CAPACITY. One is said to act in
a "fiduciary capacity" or to receive money or con-
tract a debt in a "fiduciary capacity," when the
business which he transacts, or the money or
property which he handles, is not his own or for
his own benefit, but for the benefit of another per-
son, as to whom he stands in a relation implying
and necessitating great confidence and trust on
the one part and a high degree of good faith on
the other part. The term is not restricted to tech-
nical or express trusts, but includes also such of-
fices or relations as those of an attorney at law, a
guardian, executor, or broker, a director of a
corporation, and a public officer. Templeton v.
Bockler, 73 Or. 494, 144 P. 405, 409; Madison Tp.
v. Dunkle, 114 Ind. 262, 16 N.E. 593. As used in
the Bankruptcy Act, § 17, subd. 4, 11 U.S.C.A. §
35, however, the term imports a technical trust,
actually and expressly constituted, and not such
merely as the law implies, and has no application
to debts or obligations merely because they were
created under circumstances in which trust or
confidence in the popular sense of those terms was
reposed in debtor. Culp v. Robey, Tex.Civ.App.,
294 S.W. 647, 651; American Agricultural Chem-
ical Co. v. Berry, 110 Me. 528, 87 A. 218, 45 L.R.A.,
N.S., 1106, Ann.Cas.1915A, 1293.
FIDUCIARY CONTRACT. An agreement by
which a person delivers a thing to another on the
condition that he will restore it to him. Cicero,
de Ofjle, lib. 3, cap. 17; Lee. du Dr.Civ.Rom. § 237.
See Chapman v. Forsyth, 2 How., U.S., 202, 11 L.
Ed. 236; Fisk v. Sarber, 6 W. & S., Pa., 18; Mc-
Ginn v. Shaeffer, 7 Watts, Pa., 415.
FIDUCIARY DEBT. A debt founded on or aris-
ing from some confidence or trust as distinguished
from a "debt" founded simply on contract. Mont-
gomery v. Phillips Petroleum Co., Tex.Civ.App.,
49 S.W.2d 967, 973.
FIDUCIARY DEBTORS. Only public officers and
trustees, not agents, factors, commission men, and
the like, within the meaning of Bankruptcy Act,
§ 14, subd. 4, 11 U.S.C.A. § 32. Keefauver v. He y
-enor, 163 App.Div. 531, 148 N.Y.S. 434, 435.
FIDUCIARY HEIR. The Roman laws called a
fiduciary heir the person who was instituted heir,
and who was charged to deliver the succession to
a person designated by the testament. Merlin,
Rëpert. But Pothier, Pand. vol. 22, says that fidu-
ciarius hceres properly signifies the person to
whom a testator has sold his inheritance under
the condition that he should sell it to another.
FIDUCIARY OR CONFIDENTIAL RELATION.A very broad term embracing both technical fidu-
ciary relations and those informal relations which
exist wherever one man trusts in or relies upon
another. State v. Gautier, 108 Fla. 390, 147 So.
240, 242. One founded on trust or confidence re-
posed by one person in the integrity and fidelity
of another. Kerrigan v. O'Meara, 71 Mont. 1, 227
P. 819, 821.
The origin of the confidence and the source of the
influence are immaterial. Quinn v. Phipps, 93 Fla. 805, 113
So. 419, 420, 54 A.L.R. 1173. The relations and duties
involved need not be legal but may be moral, social, domes-
tic, or merely personal. Trustees of Jesse Parker Williams
Hospital v. Nisbet, 191 Ga. 821, 14 S.E.2d 64, 76. See also,
Fiduciary Relation.
FIDUCIARY RELATION. An expression includ-
ing both technical fiduciary relations and those
informal relations which exist whenever one man
trusts and relies upon another. Peckham v. John-
son, Tex.Civ.App., 98 S.W.2d 408, 416. It exists
where there is special confidence reposed in one-
who in equity and good conscience is bound to-
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FIDUCIARY
act in good faith and with due regard to interests
of one reposing the confidence. Neagle v. Mc-
Mullen, 334 Ill. 168, 165 N.E. 605, 608. A relation
subsisting between two persons in regard to a
business, contract, or piece of property, or in re-
gard to the general business or estate of one of
them, of such a character that each must repose
trust and confidence in the other and must exer-
cise a corresponding degree of fairness and good
faith.
Out of such a relation, the law raises the rule that nei-
ther party may exert influence or pressure upon the other,
take selfish advantage of his trust, or deal with the subject-
matter of the trust in such a way as to benefit himself orp
rejudice the other except in the exercise of the utmost
good faith and with the full knowledge and consent of that
other, business shrewdness, hard bargaining, and astute-
ness to take advantage of the forgetfulness or negligence
of another being totally prohibited as between persons
standing in such a relation to each other. Examples of
fiduciary relations are those existing between attorney and
client, guardian and ward, principal and agent, executor
and heir, trustee and cestui que trust, landlord and tenant,
etc. Robins v. Hope, 57 Cal. 497; Thomas v. Whitney, 186
Ill. 225, 57 N.E. 808; Central Nat. Bank v. Connecticut Mut.
L. Ins. Co., 104 U.S. 68, 26 L.Ed. 693. The relation need
not be legal, but may be moral, social, domestic, or merely
personal. Miranovitz v. Gee, 163 Wis. 246, 157 N.W. 790,
792; Higgins v. Chicago Title & Trust Co., 312 Ill. 11, 143
N.E. 482, 484. It is one in which, if a wrong arise, the
same remedy exists against the wrongdoer on behalf of the
principal as would exist against a trustee on behalf of a
cestui que trust. Smith v. Smith, 222 Mass. 102, 109 N.E.
830, 832. Sometimes confidential and fiduciary relations are
regarded as synonymous; In re Cover's Estate, 188 Cal.
133, 204 P. 583, 588; but on the other hand, a technical
distinction may be taken between a "fiducial relation"
which is more correctly applicable to legal relationships
between parties, such as guardian and ward, administra-
tor and heirs, and other similar relationships, and a "con-
fidential relation" which includes the legal relationships,
and also every other relationship wherein confidence is
rightfully reposed and is exercised. Roberts v. Parsons,
195 Ky. 274, 242 S.W. 594, 596.
FIEF. A fee, feod, or feud.
FIEF D'HAUBERT (or D'HAUBERK). Fr. In
Norman feudal law, a fief or fee held by the ten-
ure of knight-service; a knight's fee. 2 Bl.Comm.
62. A fee held on the military tenure of appear-
ing fully armed on the ban and arriêre-ban. Feu-
dum hauberticum. Spelman; Calvinus, Lex.; Du
Cange.
FIEF-TENANT. In old English law, the holder
of a fief or fee; a feeholder or freeholder.
FIEL. In Spanish law, a sequestrator; a person
in whose hands a thing in dispute is judicially de-
posited; a receiver. Las Partidas, pt. 3, tit. 9,
1.1.
FIELD. A cultivated tract of land; State v.
Mack, 92 Vt. 103, 102 A. 58, 59; but not a one-
acre lot used for cultivating vegetables; Simons
v. Lovell, 7 Heisk., Tenn., 510. This term might
well be considered as definite and certain a de-
scription as "close," and might be used in law;
but it is not a usual description in legal proceed-
ings. 1 Chit.Gen.Pr, 160.
Armies away from the home base on an opera-
tional, hostile mission are in the "field". In re
Di Bartolo, D,C.N.Y., 50 F.Supp. 929, 933.
FIELD-ALE, or FILKDALE. An ancient custom
in England, by which officers of the forest and
bailiffs of hundreds had the right to compel the
hundred to furnish them with ale. Tomlin&
FIELD BOOK. A description of the courses and
distances of the lines, and of the corners of the
lots of the town as they were surveyed, and as
they appear by number and division on the town
plan. Neill v. Ward, 103 Vt. 117, 153 A. 219, 225.
FIELD HOSPITAL. See Hospital.
FIELD NOTES. A description of a survey. Out-
law v. Gulf Oil Corporation, Tex.Civ.App., 137 S.
W.2d 787, 794.
FIELD REEVE. An officer elected, in England,
by the owners of a regulated pasture to keep in
order the fences, ditches, etc., on the land, to regu-
late the times during which animals are to be ad-
mitted to the pasture, and generally to maintain
and manage the pasture subject to the instructions
of the owners. (General Inclosure Act, 1845, §
118.) Sweet.
FIELD VISION. The general vision used in
catching in sight, following and locating objects;
—distinguished from "binocular vision" (q. v.).
Turpin v. St. Regis Paper Co., 199 App.Div. 64,
192 N.Y.S. 85, 87.
FIELD WORK. Work in the field, specifically
the task of gathering scientific data from the field.
Includes the sphere of practical operation, as of an
organization or enterprise; also, the place or ter-
ritory where direct contacts, as with a clientele
may be made or first-hand knowledge may be gain-
ed; sphere of action or place of contest, either
literally or figuratively; hence, any scene of oper-
ations or opportunity for activity. State ex rel.
McPherson v. Snell, 168 Or. 153, 121 P.2d 930, 937,
FIELDAD, In Spanish law, sequestration. This
is allowed in six cases by the Spanish law where
the title to property is in dispute. Las Partidas,
pt. 3, tit. 3, 1. 1.
FIERDING COURTS. Ancient Gothic courts of
an inferior jurisdiction, so called because four
were instituted within every inferior district or
hundred. 3 Bl.Comm. 34; 3 Steph.Com. 393;
Stiernhook, De Jure Goth. 1, c. 2.
FIERI. Lat. To be made; to be done. See In
Fieri,
FIERI FACIAS. Means that you cause to be
made. In practice, a writ of execution command-
ing the sheriff to levy and make the amount of a
judgment from the goods and chattels of the judg-
ment debtor.
FIERI FACIAS DE BONIS ECCLESIASTIC'S.
When a sheriff to a common fi, fa. returns nulla
bona, and that the defendant is a beneficed clerk,
not having any lay fee, a plaintiff may issue a fi.
fa. de bonis ecclesiasticis, addressed to the bishop
of the diocese or to the archbishop, (during the
vacancy of the bishop's see,) commanding him to
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make of the ecclesiastical goods and chattels be-
longing to the defendant within his diocese the
sum therein mentioned. 2 Chit.Archb.Pr. (12th
Ed.) 1062.
FIERI FACIAS DE BONIS TESTATORIS. The
writ issued on an ordinary judgment against an
executor when sued for a debt due by his testator.
If the sheriff returns to this writ nulla bona, and
a devastavit, (q. v.,) the plaintiff may sue out a
fieri facias de bonis propriis, under which the
goods of the executor himself are seized. Sweet.
FIERI FECI. Means I have caused to be made.
In practice, the return made by a sheriff or other
officer to a writ of fieri fackts, where he has col-
lected the whole, or a part, of the sum directed to
be levied. 2 Tidd, Pr. 1018. The return, as ac-
tually made, is expressed by the word "Satisfied"
indorsed on the writ.
FIERI NON DEBET, (DEBUIT,) SED FACTUM
VALET. It ought not to be done, but [if] done,
it is valid. Shep. Touch. 6; 5 Coke, 39; T.Raym.
58; 1 Strange, 526. A maxim frequently applied
in practice. Nichols v. Ketcham, 19 Johns., N.Y.,
84, 92.
FIFTEENTHS. In English law, this was origin-
ally a tax or tribute, levied at intervals by act of
parliament, consisting of one-fifteenth of all the
movable property of the subject or personalty in
every city, township, and borough.
Under Edward III., the taxable property was assessed,
and the value of its fifteenth part (then about £29,000) was
recorded in the exchequer, whence the tax, levied on that
valuation, continued to be called a "fifteenth," although as
the wealth of the kingdom increased, the name ceased to
be an accurate designation of the proportion of the tax to
the value taxed. See 1 B1.Comm. 309; Co. 2d Inst. 77; 1
Poll. & Maitl. 604; Cowell.
FIFTH DEGREE OF KINSHIP. The degree of
kinship between a deceased intestate and the chil-
dren of decedent's first cousin, sometimes desig-
nated as "first cousins once removed", was in the
"fifth degree". Simonton v. Edmunds, 202 S.C.
397, 25 S.E.2d 284, 285.
FIFTY DECISIONS. Ordinances of Justinian
(529-532) upon the authority of which all moot
points were settled in the preparation of the sec-
ond edition of the Code. Taylor, Science of Ju-
rispr. 144.
FIGHT. "Fight" means combat or battle, as hos-
tile encounter or engagement between opposing
forces, suggesting primarily the notion of a brawl
or unpremeditated encounter, or that of a pugil-
istic combat. Gitlow v. Kiely, D.C.N.Y., 44 F.2d
227, 232.
An encounter, with blows or other personal violence,
between two persons. Carpenter v. People, 31 Colo. 284, 72
P. 1072; Coles v. New York Casualty Co., 87 App. Div. 41,
83 N.Y.S. 1063. The term does not necessarily imply that
both parties, should give and take blows. It is sufficient
that they,voluntarily put their bodies in position with that
intent; State v. Gladden, 73 N.C. 155; Tate v. State, 46 Ga.
148.
FIGHTWITE. Sax. A mulct or fine for making
a quarrel to the disturbance of the peace. Called
also by Cowell "forisfactura pugnce."  The
amount was one hundred and twenty shillings.
Cowell.
A payment to a lord possessing soc over a place
where a wrong was done. 2 Holdsw. Hist.E.L. 35.
FIGURES. Artificial representations of a form,
as in sculpture, drawing, or painting, especially
the human body represented by art of any kind.
People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314,
317.
Numerals. They are either Roman, made with
letters  of the alphabet: for  example,
MDCCLXXVI; or they are Arabic, as follows:
1776.
FILACER. An officer of the superior courts at
Westminster, whose duty it was to file the writs
on which he made process. There were fourteen
filacers, and it was their duty to make out all
original process. Cowell; Blount; Jacob L.Dict.
It is used in 8 Mod. 284. The office was abolished
in 1837.
FILARE. In old English practice, to file.
Townsh.Pl. 67.
FILCHING. "Filching" means to steal money,
commonly of little value, secretly or underhand-
edly. Peck v. Bez, W.Va., 40 S.E.2d 1, 10.
FILE, n. A record of the court. Milton v. Unit-
ed States, C.C.A.La., 105 F.2d 253, 255. A thread,
string, or wire upon which writs and other ex-
hibits in courts and offices are fastened or filed
for the more safe-keeping and ready turning to
the same. Spelman; Cowell; Tomlins. Papers
put together and tied in bundles. A paper is said
also to be filed when it is delivered to the proper
officer, and by him received to be kept on file.
13 Vin.Abr. 211; 1 Litt. 113; 1 Hawk.P.C. 7, 207;
Beebe v. Morrell, 76 Mich. 114, 42 N.W. 1119, 15
Am.St.Rep. 288. But, in general, "file," or "the
files," is used loosely to denote the official custody
of the court or the place in the offices of a court
where the records and papers are kept. The "file"
in a cause includes original subpoenas and all pa-
pers belonging thereto. Jackson v. Mobley, 157
Ala. 408, 47 So. 590.
FILE, v. To lay away papers for presentation
and reference. Murphy v. Burlington Overall Co.,
225 Mo.App. 866, 34 S.W.2d 1035, 1037. In prac-
tice, to put upon the files, or deposit in the cus-
tody or among the records of a court. To deliver
an instrument or other paper to the proper of-
ficer for the purpose of being kept on file by him
in the proper place. Gallagher v. Linwood, 30
N.M. 211, 231 P. 627, 629, 37 A.L.R. 664; Dillon v.
Superior Court of Nevada County, 24 Cal.App. 760,
142 P. 503, 505; Pendrey v. Brennan, 31 Idaho, 54,
169 P. 174, 175. It carries the idea of permanent
preservation as a public record. In re Gubelman,
C.C.A., 10 F.2d 926, 929.
The term "filed" is used to denote the paper placed with
the clerk, and assigned by law to his official keeping. Ex
parte Leifeste, 127 Tex.Cr.R. 445, 77 S.W.2d 675, 676.
"To file" a paper, on the part of a party, is to place it
in the official custody of the clerk. "To flle," on the part
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of the clerk, is to indorse upon the paper the date of its
reception, and retain it in his office, subject to inspection
by whomsoever It may concern. Holman v. Chevaillier,.14
Tex. 339.
"Filing a bill" in equity is an equivalent expres-
sion to "commencing a suit."
FILE WRAPPER ESTOPPEL. The doctrine de-
pends upon the fact that, when an applicant has
accepted the rejection of a broad claim he may
not later assert that another claim, deliberately
restricted to secure its allowance, is its equiva-
lent. Tampax, Inc. v. Personal Products Corpora-
tion, C.C.A.N.Y., 123 F.2d 722, 723.
FILED FOR RECORD. Left with recorder or
registrar for recording. In re Grodzins, D.C.Cal.,
27 F.Supp. 521, 523, 524.
F1LEINJAID. Brit. A name given to villeins in
the laws of Hoel Dda. Barring. Obs.St. 302.
FILIATE. To fix a bastard child on some one, as
its father. To declare whose child it is. 2 W.B1.
1017.
FILIATIO NON POTEST PROBARI. Co.Litt.
126. Filiation cannot be proved; that is, the hus-
band is presumed to be the father of a child born
during coverture. But see 7 & 8 Vict. c. 101.
FILIATION. The relation of parent and child,
but does not import legitimacy, although often a
step to that end. Rodrigues v. Rodrigues, 286
Mass. 77, 190 N.E. 20, 22. Correlative to "patern-
ity."
The judicial assignment of an illegitimate child
to a designated man as its father.
In the civil law, the descent of son or daughter,
with regard to his or her father, mother, and their
ancestors.
FILIATION PROCEEDING. A special statutory
proceeding, criminal in form, but in the nature of
a civil action to enforce a civil obligation or duty
specifically for the purpose of establishing par-
entage and the putative father's duty to support
his illegitimate child. State v. Morrow, 158 Or.
412, 75 P.2d 737, 738, 739, 744.
FILICETUM. In old English law, a ferny or
bracky ground; a place where fern grows. Co.
Lit. 4b; Shep.Touch. 95.
FILIOLUS (or FILIOUS). In old records, a god-
son. Spelman.
FILIUS. Lat. A son; a child.
As distinguished from heir filius is a term of nature,
hceres a term of law. 1 Powell, Dev. 311. In the civil law
the term was used to denote a child generally. Calvinus,
Lex.; Vicat, Voc.Jur.
A distinction was sometimes made, in the civil law,
between "filii" and "liberi;" the latter word including
grandchildren, (nepotes,) the former not. Inst. 1, 14, 5.
But, according to Paulus and Julianus, they were of
equally extensive import. Dig. 50, 16, 84; Id. 50, 16, 201.
FILIUS EST NOMEN NATURE, SED IL ERES
NOMEN JURIS. 1 Sid. 193. 1 Pow.Dev. 311.
Son is a name of nature, but heir is a name of law.
FILIUS FAMILIAS. In the civil law, the son of
a family; an unemancipated son. Inst. 2, 12, pr.;
Id. 4, 5, 2; Story, Confl.Laws, § 61.
FILIUS IN UTERO MATRIS EST PARS VIS-
CERUM MATRIS. 7 Coke, 8. A son in the moth-
er's womb is part of the mother's vitals.
FILIUS MULIERATUS. In old English law, the
eldest legitimate son of a woman, who previously
had an illegitimate son by his father. Glanv. lib.
7, c. 1. Otherwise called "mulier." 2 Bl.Comm.
248.
FILIUS NULLIUS. An illegitimate child; son
of nobody. In re Ellis' Estate, 225 Iowa 1279, 282
N.W. 758, 762, 120 A.L.R. 975.
FILIUS POPULI, A son of the people. In re
Clark's Estate, 228 Iowa 75, 290 N.W. 13, 29. Na-
tural child.
FILL. To make full; to complete; to satisfy or
fulfill; to possess and perform the duties of; to
occupy the whole capacity or extent of, so as to
leave no space vacant.
Word "fill" in agreement to "take and fill" a certain
number of shares, amounts to a promise to pay assess-
ments. Bangor Bridge Co. v. McMahon, 10 Me. 478.
To fill a prescription is to furnish, prepare, and combine
the requisite materials in due proportion as prescribed.
Ray v. Burbank, 61 Ga. 505, 34 Am.Rep. 103.
To "fill" embroidery is to stuff out the figure, which is
the ornamentation, by covering the stuffing with the silk,
cotton, or other threads used by the embroiderer. G. Reis
& Bro. v. Reform Initial Co., C.C.A.N.Y., 266 F. 219.
The term "fill," used in relation to shipments of live
stock, means feeding and watering stock just prior to sale
so as to increase their weight and thus enhance their value.
Texas & P. Ry. Co. v. West Bros., Tex.Com.App., 207 S.W.
918, 922.
FILLED MILK. Milk to which has been added fat
or oil other than milk fat so that the resulting
product is in imitation or semblance of milk,
cream, or skim milk. State v. Hershman, 346
Mo. 892, 143 S.W.2d 1025, 1026.
FILLING CHAMBER. A place in which a bottle
mouth is held so as to cut off communication with
open air while the bottle is being filled with gase-
ous liquids to be sealed in it under pressure.
Crown Cork & Seal Co. of Baltimore City v. Car-
per Automatic Bottling Mach. Co. of Baltimore
City, D.C.Md., 229 F. 748, 750.
FILLING STATION. A building or structure
where motor vehicle fuel is stored for sale to the
public. Hanes v. Carolina Cadillac Co., 176 N.C.
350, 97 S.E. 162.
FILLY. A young mare; a female colt. An in-
dictment charging the theft of a "filly" is not
sustained by proof of the larceny of a "mare."
Lunsford v. State, 1 Tex.App. 448, 28 Am.Rep. 414.
FILTHY. Under Cr.Code, § 211, 18 U.S.C.A. §
1461, an unmailable filthy letter is morally foul,
polluted, nasty. United States v. Davidson, D.C.
N.Y., 244 F. 523, 526. Dirty, vulgar, indecent, of-
fensive to the moral sense, morally depraving, de-
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basing. Tyomies Pub. Co. v. United States, C.C.A.
Mich., 211 F. 385, 390.
In Federal Food, Drug, and Cosmetic Act, §
402(a) (3), 21 U.S.C.A. § 342(a) (3), word "filthy"
is used in its usual and ordinary meaning, and is
not to be confined to any scientific or medical
definition. U. S. v. Lazere, D.C.Iowa, 56 F.Supp.
730, 732.
FILUM. Lat. In old practice, a file, i. e., a
thread or wire on which papers were strung, that
being the ancient method of filing.
An imaginary thread or line passing through
the middle of a stream or road, as in the titles
following.
FILUM AQUAE. A thread of water; a line of
water; the middle line of a stream of water, sup-
posed to divide it into two equal parts, and con-
stituting in many cases the boundary between the
riparian proprietors on each side. Ingraham v.
Wilkinson, 4 Pick., Mass., 273, 16 Am.Dec. 342.
Medium alum is sometimes used with no addi-
tional meaning. Cf. Thalweg.
FILUM FOREST1E. The border of the forest.
2 Bla.Comm. 419; 4 Inst. 303; Manw. Purlieu.
FILUM WE. The thread or middle line of a
road. The boundary between the owners of the
land on each side of a road. 2 Smith, Lead.Cas.
Am.Ed., 98, note. City of Chicago v. Rumsey, 87
Ill. 348; Cox v. Freedley, 33 Pa. 124, 75 Am.Dec.
584.
FIN. Fr. An end, or limit; a limitation, or pe-
riod of limitation.
FIN DE NON RECEVOIR. In French law, an ex-
ception or plea founded on law, which, without
entering into the merits of the action, shows that
the plaintiff has no right to bring it, either because
the time during which it ought to have been
brought has elapsed, which is called "prescrip-
tion," or that there has been a compromise, accord
and satisfaction, or any other cause which has de-
stroyed the right of action which once subsisted.
Poth.Proc. Civile, pt. 1, c. 2, § 2, art. 2; Story,
Confl.Laws, § 580.
FINAL. Last; conclusive. Standard Oil Co. (New
Jersey) v. U. S., Ct.C1., 10 F.Supp. 550, 560. Deci-
sive; definitive. State ex rel. Grodin v. Barns,
119 Fla. 405, 161 So. 568, 574. Terminating; com-
pleted. In its use in jurisprudence, this word is
generally contrasted with "interlocutory." John-
son v. New York, 48 Hun, 620, 1 N.Y.S. 254; Gar-
rison v. Dougherty, 18 S.C. 488; U. S. v. Broude,
D.C.Minn., 299 F. 332, 333.
As to final "Costs," "Decree," "Judgment," "In-
lunction," "Order," "Process," "Recovery," "Sen-
tence," and "Settlement," see those titles.
FINAL ARCHITECT'S CERTIFICATE. One
which is issued after a job is done and which fin-
ally determines the rights of the parties as to
money and disputes. Johnson v. Hogg, 202 Ill.
App. 253, 255; Hunt v. Owen Bldg. & Inv. Co.,
Mo.App., 219 S.W. 138, 140.
FINAL DECISION. One which leaves nothing
open to further dispute and which sets at rest
cause of action between parties. Hammond v.
Boston Terminal Co., 295 Mass. 566, 4 N.E.2d 328.
One which settles rights of parties respecting the
subject-matter of the suit and which concludes
them until it is reversed or set aside. Orwig v.
Conley, 322 Ill. 291, 153 N.E. 371, 372; Pawtucket
Cabinet & Builders' Finish Co. v. People's Excur-
sion Line, 45 R.I. 426, 123 A. 354. See, however,
Wyman v. Hageman, 318 Ill. 64, 148 N.E. 852, 855.
The filing of signed findings and conclusions and
order for judgment. Crane v. First Nat. Bank, 26
N.D. 268, 144 N.W. 96, 97. Synonymous with final
judgment or decree. In re Tiffany, 252 U.S. 32,
40 S.Ct. 239, 240, 64 L.Ed. 443. Also, a deci-
sion from which no appeal or writ of error can be
taken. Moore v. Mayfield, 47 Ill. 167; 6 El. &
Bl. 408; U. S. v. Tod, C.C.A.N.Y., 1 F.2d 246, 251;
Blanding v. Sayles, 23 R.I. 226, 49 A. 992.
FINAL DETERMINATION. Final judgment is
synonymous. The final settling of the rights of
the parties to the action beyond all appeal. Quar-
ture .v. Allegheny County, 141 Pa.Super. 356, 14
A.2d 575, 578. See Judgment.
FINAL DISPOSITION. Such a conclusive deter-
mination of the subject-matter embraced in a
submission to arbitrators, that after the award
is made nothing further remains to fix the rights
and obligations of the parties, and no further con-
troversy or litigation can arise thereon. Quarture
v. Allegheny County, 141 Pa.Super. 356, 14 A.2d
575, 578. It is such an award that the party
against whom it is made can perform or pay it
without any further ascertainment of rights or
duties. Colcord v. Fletcher, 50 Me. 401.
FINAL HEARING. Describes that stage of pro-
ceedings relating to the determination of a suit
upon its merits as distinguished from those of
preliminary questions. Menard v. Bowman Dairy
Co., 296 Ill.App. 323, 15 N.E.2d 1014, 1015. It may
also be used with reference to a dismissal on the
motion of plaintiff. Christensen v. General Elec-
tric Co., D.C.N.Y., 248 F. 284, 286.
FINAL PASSAGE. The vote on a passage of a
bill or resolution in either house of the legislature
after it has received the prescribed number of
readings and has en subjected to such action as
is required by the fundamental law governing the
body or its own rule. State v. Buckley, 54 Ala.
613. The actual final vote necessary to a bill be-
coming a law, regardless of parliamentary fictions.
Roane Iron Co. v. Francis, 130 Tenn. 694, 172 S.
W. 816.
FINAL RECEIVER'S RECEIPT. An acknowl-
edgment by the government that it has received
full payment for public land, that it holds the le-
gal title in trust for the entryman, and will in due
course issue to him a patent. Bovey-Shute Lum-
ber Co. v. Erickson, 41 N.D. 365, 170 N.W. 628, 630.
FINAL SETTLEMENT. In probate proceeding, a
direct adjudication that the estate is fully admin-
istered; that the administrator has completely
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FINAL
executed his trust and has accounted for all mon-
eys received as the law requires. In re Braun's
Estate, 140 Kan. 188, 34 P.2d 94, 95.
The final determination of amount due contrac-
tor by proper governmental authority. Consoli-
dated Indemnity & Insurance Co. v. W. A. Smoot
& Co., C.C.A.Va., 57 F.2d 995, 996.
A formal determination by commissioners' court,
in cases involving contract with county, of amount
finally due under contract. Austin Bros. Bridge
Co. v. Love, Tex.Com.App., 34 S.W.2d 574, 577.
FINAL SUBMISSION. Exists when nothing re-
mains to be done to render submission complete.
Thompson v. Schalk, 228 Iowa 705, 292 N.W. 851,
852.
Where the whole case, both requested instructions and
evidence, is submitted to the court for its ruling and the
court takes the case under advisement, there is a "final
submission" of the entire case. Piatt v. Heim & Overly
Realty Co., 342 Mo. 772, 117 S.W.2d 327, 329.
FINAL TRIAL. Under a statute such trial in the
court having original trial jurisdiction as is the
basis of entry of judgment finally disposing of ac-
tion in that court; the term does not apply to pro-
ceedings in the appellate court. Wynne v. Smith,
23 Ga.App. 330, 98 S.E. 271, 272.
FINALIS CONCORDIA. A final or conclusive
agreement.
In the process of "levying a fine," this was a final agree-
ment entered by the litigating parties upon the record, by
permission of court, settling the title to the land, and which
was binding upon them like any judgment of the court.
1 Washb.Real Prop. *70.
FINANCE CHARGE. The consideration for privi-
lege of deferring payment of purchase price. Cow-
art v. Lang, 252 App.Div. 720, 298 N.Y.S. 875.
FINANCES. Money resources generally. The
state of the finances of an individual or corpora-
tion, being his condition in a monetary point of
view. The cash he has on hand, and that which
he expects to receive, as compared with the en-
gagements he has made to pay.
The public wealth of a state or government, considered
either statically (as the property or money which a state
now owns) or dynamically, (as its income, revenue, or
public resources.) Monetary affairs, funds in a treasury or
accruing to it, etc. City of Newburgh v. Dickey, 150 N.Y.S.
175, 177, 164 App.Div. 791.
FINANCIAL. Fiscal. Armstrong v. State Bank
of Mayville, 177 App.Div. 265, 165 N.Y.S. 5, 8.
Dealing in money. Crown Finance Corporation v.
McColgan, 23 Cal.2d 280, 144 P.2d 331, 333.
FINANCIAL RESPONSIBILITY. Obligation to
pay to a third party. Christensen v. Hennepin
Transp. Co., 215 Minn. 394, 10 N.W.2d 406, 415, 147
A.L.R. 945.
FINANCIAL WORTH. The value of one's prop-
erty less what he owes, or the value of his re-
sources less his liabilities. Boney v. Central Mut.
Ins. Co. of Chicago, 213 N.C. 470, 196 S.E. 837, 841.
FINANCIALLY ABLE. Means purchaser must be
able to command the necessary funds to close the
deal within the required time. Hersh v. Garau, 218
Cal. 460, 23 P.2d 1022.
FINANCIER. A person employed in the economi-
cal management and application of public money;
one skilled in matters appertaining to the judi-
cious management of money affairs.
FIND. To come upon by seeking or by effort.
Shields v. Shields, 115 Mont. 146, 139 P.2d 528, 530.
To discover; to determine; to ascertain and de-
clare.
To announce a conclusion, as the result of judicial inves-
tigation, upon a disputed fact or state of facts; as a jury
are said to, "find a will." To determine a controversy in
favor of one of the parties; as a jury "find for the plain-
tiff." State v. Bulkeley, 61 Conn. 287, 23 A. 186, 14 L.R.A.
657. The term usually means to ascertain by judicial
inquiry, State ex inf. of Barker v. Crandall, 269 Mo. 44, 190
S.W. 889, 893; in contradistinction to acts by a clerk of
court, State v. Halaby, 148 La. 1, 86 So. 561, 563; or by
administrative boards, Union Pac. R. Co. v. Board of
Com'rs of Weld County, Colo., C.C.A.Colo., 217 F. 540, 541.
But the term does not always require a judicial or official
finding. City of Chicago v. Atwood, 269 Ill. 624, 110 N.E.
127, 128.
FINDER. One who discovers and takes posses-
sion of another's personal property, which was
then lost. Kincaid v. Eaton, 98 Mass. 139, 93 Am.
Dec. 142.
A searcher employed to discover goods imported
or exported without paying custom. Jacob.
FINDER'S FEE. A sum of money paid by a
banker to one who brings to him a deal out of
which he makes money. Cray, McFawn & Co. v.
Hegarty, Conroy & Co., D.C.N.Y., 27 F.Supp. 93, 97,
98, 100, 101.
FINDING. The result of the deliberations of a
jury or a court. Denslow v. Moore, 2 Day (Conn.)
12; U. S. v. Moller, 16 Blatchf. 65, Fed.Cas.No.
15,794. A decision upon a question of fact reached
as the result of a judicial examination or investi-
gation by a court, jury, referee, coroner, etc. Ben-
ton v. Roberts, 53 Ga.App. 121, 185 S.E. 292, 294.
A recital of the facts as found. Crighton v. Jacobs,
100 Conn. 281, 123 A. 437, 438. The word common-
ly applies to the result reached by a judge, Maeder
Steel Products Co. v. Zanello, 109 Or. 562, 220 P.
155, 158; it being sometimes, however, as a matter
of interpretation, treated as a ruling of law, Gar-
den Cemetery Corporation v. Baker, 218 Mass. 339,
105 N.E. 1070, 1072, Ann.Cas.1916B, 75.
FINDING OF FACT. A determination of a fact
by the court, averred by one party and denied by
the other, and founded on evidence in case. C.I.T.
Corp. v. Elliott, 66 Idaho 384, 159 P.2d 891, 897.
A conclusion by way of reasonable inference from
the evidence. Barker v. Narragansett Racing
Ass'n, 65 R.I. 489, 16 A.2d 495, 497. Also the an-
swer of the jury to a specific interrogatory pro-
pounded to them as to the existence or non-exist-
ence of a fact in issue. Miles v. McCallan, 1 Ariz.
491, 3 P. 610; Murphy v. Bennett, 68 Cal. 528, 9
P. 738.
The term is not applicable, with special reference to
review on appeal, to a mere conclusion that the evidence
is insufficient to authorize relief, Monetaire Mining Co. v.
Columbus Rexall Consol. Mines Co., 53 Utah, 413, 174 P.
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FINE
172, 174; nor to the opinion of the trial court, delivered in
announcing judgment, Rogers v. Harris, 76 Okl. 215, 184
P. 459, 462; nor to a memorandum of the decision of the
trial judge, Preston v. Preston, 102 Conn. 96, 128 A. 292,
296; nor to a transcript of the evidence, State v. Chin
Lung, 106 Conn. 701, 139 A. 91, 97.
A general finding by a court is a general statement that
the facts are in favor of a party or entitle him to judg-
ment. It is a complete determination of all matters, and is
a finding of every special thing necessary to be found to
sustain the general finding. Miller v. Thompson, 80 Okl.
70, 194 P. 103, 105.
A special finding is a specific setting forth of the ultimate
facts established by the evidence and which are determina-
tive of the judgment which must be given. Rhodes v.
United States Nat. Bank, Ill., 66 F. 514, 13 C.C.A. 612, 34
L.R.A. 742; Humphreys v. Third Nat. Bank, Ohio, 75 F.
856, 21 C.C.A. 538. It is only a determination of the ulti-
mate facts on which the law must be determined, Societe
Nouvelle d'Armement v. Barnaby, C.C.A.Wash;, 246 F. 68,
70. A special finding may also be said to be one limited to
the fact issue submitted. Ex parte Woodward Iron Co.,
212 Ala. 220, 102 So. 103, 106.
The term "fact" in the phrase "finding of fact" denotes
the inferences drawn by the trior from ascertained facts.
Porter v. Industrial Commission of Wisconsin, 173 Wis. 267,
131 N.W. 317, 318.
FINE, v. To impose a pecuniary punishment or
mulct.
To sentence a per-son convicted of an offense to
pay a penalty in money. Goodman v. Durant B.
& L. Ass'n, 71 Miss. 310, 14 So. 146; State v. Belle,
92 Iowa 258, 60 N.W. 525.
FINE, n. A sum of money paid at the end, to
make an end of a transaction, suit, or prosecution;
mulct; penalty. Railroad Co. v. State, 22 Kan. 15;
Sunderland Bros. Co. v. Chicago, B. & I. R. Co.,
104 Neb. 319, 177 N.W. 156, 157. A forfeit or for-
feiture. Keinath, Schuster & Hudson v. Reed, 18
N.M. 358, 137 P. 841, 844; Bryant v. Rich's Grill,
216 Mass. 344, 103 N.E. 925, 927, Ann.Cas.1915B,
869.
Conveyancing
An amicable composition or agreement of a suit,
either actual or fictitious, by leave of the court, by
which the lands in question become, or are ac-
knowledged to be, the right 'of one of the parties.
2 Bl.Comm. 349; Christy v. Burch, 25 Fla. 942, 2
So. 258; Hitz v. Jenks, 123 U.S. 297, 8 S.Ct. 143, 31
L.Ed. 156. Fines were abolished in England by
St. 3 & 4 Wm. IV. c. 74, substituting a disentailing
deed. (q. v.).
A fine is so called because it puts an end not only to the
suit thus commenced, but also to all other suits and con-
troversies concerning the same matter. The party who
parted with the land, by acknowledging the right of the
other, was said to levy the fine, and was called the "cog-
nizor" or "conusor," while the party who recovered or
received the estate was termed the "cognizee" or "con-
usee," and the fine was said to be levied to him.
Criminal Law
A pecuniary punishment imposed by lawful tri-
bunal upon person convicted of crime or misde-
meanor. In re Chester School District's Audit, 301
Pa. 203, 151 A. 801, 808. A pecuniary penalty.
Hanks v. Shreveport Yellow Cabs, La.App., 187 So.
817, 819. It may include a forfeiture or penalty
recoverable in a civil action. Vitelli v. Mayor and
• Council of Wilmington, 9 W.W.Harr. 336, 199 A.
283, 287.
The word "penalty" is broader than word "fine", which
is always a penalty; whereas, a penalty may be a fine or
it may designate some other form of punishment. McHugh
v. Placid Oil Co., 206 La. 511, 19 So.2d 221.
Executed Fine
See Executed.
Joint Fine
In old English law. "If a whole vill is to be
fined, a joint fine may be laid, and it will be good
for the necessity of it; but, in other cases, fines
for offenses are to be severally imposed on each
particular offender, and not jointly upon all of
them." Jacob.
Law of Tenure
A money payment made by a feudal tenant to
his lord.
The most usual fine is that payable on the admittance of
a new tenant, but there are also due in some manors fines
upon alienation, on a license to demise the lands, or on the
death of the lord, or other events. Elton, Copyh. 159; De
Peyster v. Michael, 6 N.Y. 495, 57 Am.Dec. 470.
FINE AND RECOVERY ACT. The English stat-
utes 3 & 4 Wm. IV. c. 74, for abolishing fines and
recoveries. 1 Steph.Comm. 514, et seq.
FINE ANULLANDO LEVATO DE TENEMENTO
QUOD FUIT DE ANTIQUO DOMINICO. An
abolished writ for disannulling a fine levied of
lands in ancient demesne to the prejudice of the
lord. Reg.Orig. 15.
FINE CAPIENDO PRO TERRIS. An obsolete
writ which lay for a person who, upon conviction
by jury, had his lands and goods taken, and his
body imprisoned, to be remitted his imprisonment,
and have his lands and goods redelivered to him,
on obtaining favor of a sum of money, etc. Reg.
Orig. 142.
FINE FOR ALIENATION. A fine anciently pay-
able upon the alienation of a feudal estate and
substitution of a new tenant. It was payable to
the lord by all tenants holding by knight's service
or tenants in capite by socage tenure. Abolished
by 12 Car. II. c. 24. See 2 BI.Comm. 71, 89; De
Peyster v. Michael, 6 N.Y. 467, 495, 57 Am.Dec.
470.
FINE FOR ENDOWMENT. A fine anciently pay-
able to the lord by the widow of a tenant, without
which she could not be endowed of her husband's
lands. Abolished under Henry I., and by Magna
Charta. 2 Bl.Comm. 135; Mozley & Whitley.
FINE NON CAPIENDO PRO PULCHRE PLACI-
TANDO. An obsolete writ to inhibit officers of
courts to take fines for fair pleading.
FINE PRO REDISSEISINA CAPIENDO. An old
writ that lay for the release of one imprisoned for
a redisseisin, on payment of a reasonable fine.
Reg.Orig. 222.
FINE ROLLS. See Oblate Rolls,
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FINE
FINE SUR COGNIZANCE DE DROIT, CUM
CEO QUE IL AD DE SON DONE. A fine upon
acknowledgment of the right of the cognizee as
that which he hath of the gift of the cognizor.
By this the deforciant acknowledged in court a
former feoffment or gift in possession to have
been made by him to the plaintiff. 2 Bl.Comm.
352.
FINE SUR COGNIZANCE DE DROIT TANTUM.
A fine upon acknowledgment of the right merely,
and not with the circumstance of a preceding gift
from the cognizor.
This was commonly used to pass a reversionary interest
which was in the cognizor, of which there could be no feoff-
ment supposed. 2 Bl.Comm. 353; 1 Steph.Comm. 519;
Jacob, Law Diet.; Corn., Dig.
FINE SUR CONCESSIT. A fine upon concessit
(he hath granted). A species of fine, where the
cognizor, in order to make an end of disputes,
though he acknowledged no precedent right, yet
granted to the cognizee an estate de novo, usually
for life or years, by way of supposed composition.
2 Bl.Comm. 353; 1 Steph.Comm. 519.
FINE SUR DONE GRANT ET RENDER. A dou-
ble fine, comprehending the fine sur cognizance de
droit come ceo and the fine sur concessit.
It might be used to convey particular limitations of
estates, whereas the fine sur cognizance de droit come ceo,
etc., conveyed nothing but an absolute estate, either of
inheritance, or at least freehold. In this last species of
fines, the cognizee, after the right was acknowledged to be
in him, granted back again or rendered to the cognizor, or
perhaps to a stranger, some other estate in the premises.
2 Bl.Comm. 353; Viner, Abr. Fine; Comyns, Dig. Fine.
FINE-FORCE. An absolute necessity or inevi-
table constraint. Plowd. 94; 6 Coke, 11; Cowell;
Old N.B. 78.
FINEM FACERE. To make or pay a fine. Bract.
106; Skene.
FINES LE ROY. In old English law, the king's
fines. Fines formerly payable to the king for any
contempt or offense, as where one committed any
trespass, or falsely denied his own deed, or did
anything in contempt of law. Termes de la Ley.
FINGER. The loss of the use of a thumb cannot
be considered the loss of a finger within Work-
men's Compensation Law. Doris v. James Butler,
Inc., 199 App.Div. 116, 192 N.Y.S. 515.
FINGER PRINTS. See Anthropometry.
FINIRE. In old English law, to fine, or pay a
fine. Cowell. To end or finish a matter.
FINIS. Lat. An end; a fine; a boundary or
treminus; a limit. Also in L. Lat., a fine (q. v.).
FINIS EST AMICABILIS COMPOSITIO ET FI-
NALIS CONCORDIA EX CONCENSU ET CON-
CORDIA DOMINI REGIS VEL JUSTICIARUM.
Glan. lib. 8, c. 1. A fine is an amicable settlement
and decisive agreement by consent and agreement
of our lord, the king, or his justices.
FINIS FINEM LITIBUS IMPONIT. A fine puts
an end to litigation. 3 Inst. 78,
FINIS REI ATTENDENDUS EST. 3 Inst. 51.
The end of a thing is to be attended to.
FINIS UNIUS DIEI EST PRINCIPIUM ALTER!•
US. 2 Bulst. 305. The end of one day is the be-
ginning of another.
FINITIO. An ending; death, as the end of life.
Blount; Cowell.
FINIUM REGUNDORUM ACTIO. In the civil
law, action for regulating boundaries. The name,
of an action which lay between those who had
lands bordering on each other, to settle disputed
boundaries. Mackeld.Rom.Law, § 499.
FINORS. Those that purify gold and silver, and
part them by fire and water from coarser metals;
and therefore, in the statute of 4 Hen. VII. c. 2,
they are also called "porters." Termes de la Ley.
FIRDFARE. Sax. In old English law, a sum-
moning forth to a military expedition, (indictio
ad profectionem militarem.) Spelman.
FIRDIRINGA. Sax. A preparation to go into
the army. Leg. Hen. I.
FIRDSOCNE. Sax. In old English law, exemp-
tion from military service. Spelman.
FIRDWITE. In old English law, a fine for refus-
ing military service (mulcta detrectantis mili-
tiam.) Spelman. A mulct or penalty imposed on
military tenants for their default in not appearing
in arms or coming to an expedition. Cowell.
A fine imposed for murder committed in the
army; an acquittance of such fine. Fleta, lib. 1, c.
47.
FIRE. The effect of combustion. The juridical
meaning of the word does not differ from the
vernacular. 1 Pars.Mar.Law, 231, et seq.
The word "fire," as used in insurance policies, does not-
have the technical meaning developed from analysis of its
nature, but more nearly the popular meaning, being an
effect rather than an elementary principle, and is the effect
of combustion, being equivalent to ignition or burning, but
heat is not fire, though fire may proximately cause loss
from heat. Lavitt v. Hartford County Mut. Fire Ins. Co.,
105 Conn. 729, 136 A. 572.
The ordinary meaning of the word as used in an insur-
ance policy includes the idea of visible heat or light. Secu-
rity Ins. Co. of New Haven, Conn., v. Choctaw Cotton Oil
Co., 149 Okl. 140, 299 P. 882, 884. Damage to wool by
spontaneous combustion with smoke and great heat, but
withont any visible flame or glow, is held not to be fire.
The "fire is always caused by combustion, but combustion
does not always cause fire." Western Woolen Mill Co. v.
Assurance Co., Kan., 139 F. 637, 72 C.C.A. 1.
Under a fire policy it must be a "hostile fire," that is
one which becomes uncontrollable or breaks out from
where it was intended to be and becomes a hostile element.
Mode, Limited, v. Fireman's Fund Ins. Co., 62 Idaho 270,
110 P.2d 840, 842, 133 A.L.R. 791.
FIRE AND SWORD, LETTERS OF. In old Scotch
law, letters issued from the privy council in Scot-
land, addressed to the sheriff of the county, au-
thorizing him to call for the assistance of the coun-
ty to dispossess a tenant retaining possession,
contrary to the order of a judge or the sentence of_
a court. Wharton; Bell, Dict.
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FIRM
FIREARM. An instrument used in the propul-
sion of shot, shell, or bullets by the action of
gunpowder exploded within it. A weapon which
acts by force of gunpowder. People v. Simons,
124 Misc. 28, 207 N.Y.S. 56, 57. This word com-
prises all sorts of guns, fowling-pieces, blunder-
busses, pistols, etc.; Harris v. Cameron, 81 Wis.
239, 51 N.W. 437, 29 Am.St.Rep. 891; Atwood v.
State, 53 Ala. 509; Whitney Arms Co. v. Barlow, 38
N.Y.Super.Ct. 563; fountain pen primarily intend-
ed for discharge of tear gas, People v. Anderson,
236 App.Div. 586, 260 N.Y.S. 329; but not an air
pistol. People v. Schmidt, 221 App.Div, 77, 222
N.Y.S. 647, 650.
FIREBARE. A beacon or high tower by the sea-
side, wherein are continual lights, either to direct
sailors in the night, or to give warning of the ap-
proach of an enemy. Cowell.
FIREBOTE. Allowance of wood or estovers to
maintain competent firing for the tenant. A suf-
ficient allowance of wood to burn in a house. 1
Washb.Real Prop. 99.
FIREBUG. A popular phrase referring to persons
guilty of the crime of arson; commonly under-
stood to mean an incendiary or pyromaniac.
Blechner v. Kraser, Co.Ct., 157 N.Y.S. 256.
FIRE DAMP. "Fire damp" consists of light car-
burated hydrogen, and is so called from its ten-
dency to explode when mixed with atrpospheric
air and brought into contact with flame. Wells'
Adm'r v. Sutherland Coal & Coke Co., 116 Va. 1003,
83 S.E. 384, 385.
FIRE DISTRICT. One of the districts into which
a city may be (and commonly is) divided for the
purpose of more efficient service by the fire de-
partment in the extinction of fires. Des Moines v.
Gilchrist, 67 Iowa 210, 25 N.W. 136. Under a stat-
ute, a territorial subdivision of the state, estab-
lished to provide protection against fire within its
limits, maintain street lights, etc., and, although
composed of one or more towns, it is in substance
a quasi municipal corporation of definitely re-
stricted powers, and as such it may raise money
by taxation for its legitimate uses. President, etc.,
of Williams College v. Inhabitants of Town of
Williamstown, 219 Mass. 46, 106 N.E. 687, 688.
FIRE DOOR. A fireproof barrier for closing open-
ings to prevent the spread of fire. People v. One
Hundred and Thirty-One Boerum St. Co., 233 N.Y.
268, 135 N.E. 327, 328.
FIRE ESCAPE. An apparatus constructed to af-
ford a safe and convenient method of escape from
a burning building. The term includes fire lad-
ders of such sort and location as to permit safe
descent of persons caught in a building on fire,
but not a balcony or an interior staircase in a
hotel. West v. Spratling, 204 Ala. 478, 86 So. 32,
36.
FIRE EXIT. A reasonable, practicable, safe exit.
Keefe v. Annpaul Realty Co., 215 App.Div. 301, 213
N.Y.S. 637, 642.
FIRE FIGHTING MACHINE. An instrument of
public utility designed and used exclusively for
putting out fires; the average or normal fire-
fighting machine is in all its parts essentially
designed for that purpose. American-La France
Fire Engine Co. v. Riordan, C.C.A.N.Y., 6 F.2d
964, 966.
FIRE INSURANCE. See Insurance.
FIREMAN. A person engaged in the fighting and
extinguishment of fires. City of Galveston v. Fred-
rickson, Tex.Civ.App., 174 S.W.2d 994, 995.
FIRE ORDEAL. See Ordeal.
FIRE POLICY. A contract for payment of indem-
nity to insured in case of loss. Converse v. Boston
Safe Deposit & Trust Co., 315 Mass. 544, 53 N.E.2d
841, 843. See Insurance.
FIRE-PROOF. Incombustible; not in danger
from the action of fire.
To say of a building that it is fire-proof excludes the idea
that it is of wood, and necessarily implies that it is of
some substance fitted for the erection of fire-proof build-
ings. To say of a certain portion of a building that it is
fire-proof warrants conclusion that it is of a different
material. Hickey v. Morrell, 102 N.Y. 459, 7 N.E. 321, 55
Am. Rep. 824. A "fire-proof safe" within an insurance
policy is one which, in the judgment of prudent men in
locality of property insured, is sufficient, National Liberty
Ins. Co. of America v. Spharler, 172 Ark. 715, 290 S.W. 594,
596; or one which is of the kind commonly regarded as
fire-proof; Knoxville Fire Ins. Co. v. Hird, 4 Tex.Civ.App.
82, 23 S. W. 393.
FIRE RAISING. In Scotch law, the wilfully set-
ting on fire buildings, growing or stored cereals,
growing wood, or coalheughs. Ersk.Pr. 577, See
Arson.
FIRE WALL. This term, as used in a municipal
building code, has been held to refer to a wall
that is noncombustible, and to require that such
quality adhere to the openings in the wall as well
as the solid wall itself. Robenson v. Turner, 199
Ky. 642, 251 S.W. 857, 860.
FIRE-WOOD. Wood suitable for fuel, not includ-
ing standing or felled timber which is suitable and
valuable for other purposes. Hogan v. Hogan, 102
Mich. 641, 61 N.W. 73.
FIREWORKS. Contrivances of inflammable and
explosive materials combined of various propor-
tions for purpose of producing in combustion
beautiful or amusing scenic effects, or to be used
as night signal, on land or sea or for 'various pur-
poses in war. Henderson v. Massachusetts Bond-
ing & Ins. Co., 337 Mo. 1, 84 S.W.2d 922, 925.
FIRKIN. A measure of capacity, equal to nine
gallons. The word is also used to designate a
weight, used for butter and cheese, of fifty-six
pounds avoirdupois.
FIRLOT. A Scotch measure of capacity, contain-
ing two gallons and a pint. Spelman.
FIRM. The word "firm" is conventional term,
applicable only to persons who are members of
firm on particular occasion when name is used,
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FIRM
and means name, title, or style under which a
company transacts business, a partnership of two
or more persons, or a commercial house, and is
synonymous with "company", "house", "partner-
ship", and "concern". Firestone Tire & Rubber
Co. v. Webb, 207 Ark. 820, 182 S.W.2d 941, 943;
1 Chitty, Bailm. 49.
FIRM NAME. The name or title of a firm in bus-
iness.
FIRMA. In old English law, the contract of lease
or letting; also the rent (or farm) reserved upon
a lease of lands, which was frequently payable in
provisions, but sometimes in money, in which lat-
ter case it was called "alba firma," white rent.
Spelman, Gloss.; Cunningham, Law Dict.
A messuage with the house, garden, or lands,
etc., connected therewith. Co.Litt. 5 a; Shepp.
Touchst. 93.
A banquet; supper; provisions for the table.
Du Cange.
A tribute or custom paid towards entertaining
the king for one night. Domesday; Cowell.
FIRMA BURGI. The right, in medieval days, to
take the profits of a borough, paying for them a
fixed sum to the crown or other lord of the bor-
ough. 2 Holdsw.Hist.E.L. 276.
FIRMA FEODI. In old English law, a farm or
lease of a fee; a fee-farm.
FIRMAN. A Turkish word denoting a decree
or grant of privileges, or passport to a traveler.
A passport granted by the Great Mogul to cap-
tains of foreign vessels to trade within the terri-
tories over which he has jurisdiction; a permit.
FIRMARATIO. The right of a tenant to his lands
and tenements. Cowell.
FIRMARIUM. In old records, a place in monas-
teries, and elsewhere, where the poor were receiv-
ed and supplied with food. Spelman. Hence the
word "infirmary."
FIRMARIUS. L. Lat. A fermor. A lessee of a
term. Firmarii comprehend all such as hold by
lease for life or lives or for year, by deed or with-
out deed. 2 Inst. 144, 145; 1 Washb.Real Prop.
107; Sackett v. Sackett, 8 Pick. (Mass.) 312; 7
Ad. & E. 637.
FIRMATIO. The doe season. Also a supplying
with food. Cowell.
FIRME. In old records, a farm.
FIRMIOR ET POTENTIOR EST OPERATIO
LEGIS QUAM DISPOSITIO HOMINIS. The op-
eration of the law is firmer and more powerful
[or efficacious] than the disposition [or will] of
man. Co.Litt. 102a.
FIRMITAS. In old English law, an assurance of
some privilege, by deed or charter.
FIRMLY. A statement that an affiant "firmly
believes" the contents of the affidavit imports a
strong or high degree of belief, and is equivalent
to saying that he "verily" believes it. Bradley
v. Eccles, 1 Browne, Pa., 258; Thompson v. White,
4 Serg. & R., Pa., 137. The operative words in a
bond or recognizance, that the obligor is held and
"firmly bound," are equivalent to an acknowledg-
ment of indebtedness and promise to pay. Shat-
tuck v. People, 5 Ill. 477.
FIRMURA. In old English law, liberty to scour
and repair a mill-dam, and carry away the soil,
etc. Blount.
FIRST. Preceding all others; foremost; used as
an ordinal of one, as earliest in time or succes-
sion or foremost in position; in front of or in
advance of all others. Colgate-Palmolive-Peet Co.
v. U. S., C.C.A.Del., 130 F.2d 913, 915. Initial;
leading; chief; entitled to priority or preference
above others. Redman v. Railroad Co., 33 N.J.Eq.
165; Thompson v. Grand Gulf R. & B. Co., 3 How.
Miss. 247, 34 Am.Dec. 81; Hapgood v. Brown, 102
Mass. 452.
The word commonly, but not necessarily, connotes pre-
cedence. Hill v. Prior, 79 N.H. 188, 106 A. 641; Beckley v.
Ailing, 91 Conn. 362, 99 A. 1034, 1035. Thus, under a con-
tract that, if the purchaser should "first" make payment,
the vendor would convey, payment was to precede the exe-
cution of the conveyance. Walker v. Hewitt, 109 Or. 366,
220 P. 147, 151, 35 A.L.R. 100. But in a will the word
"first" may not import precedence of one bequest over
another. Everett v. Carr, 59 Me. 330; Swasey v. American
Bible Society, 57 Me. 523.
As to first "Cousin," "Distress," and "Mort-
gage," see those titles.
FIRST BLUSH. By the phrase "first blush," with-
in the rule that damages, to justify reversal, must
be so great as to strike the mind at first blush
as having been superinduced by passion or preju-
dice on the part of the jury, is meant that imme-
diately the judicial mind is shocked and surpris-
ed at the great disproportion of the size of the
verdict to what the facts of the case would author-
ize. Cole & Crane v. May, 185 Ky. 135, 214 S.W.
885, 887.
FIRST-CLASS. Of the most superior or excel-
lent grade or kind; belonging to the head or chief
or numerically precedent of several classes into
which the general subject is divided. See Pacific
Feed Co. v. Kennel, 63 Cal.App. 108, 218 P. 274, 275.
FIRST-CLASS MAIL-MATTED. In the postal
laws, all mailable matter containing writing and
all else that is sealed against inspection.
FIRST-CLASS i In English
law. Under the prisons act (28 & 29 Vict. c. 126,
§ 67) prisoners in the county, city, and borough
prisons convicted of misdemeanor, and not sen-
tenced to hard labor, are divided into two classes,
one of which is called the "first division;" and it
is in the discretion of the court to order that
such a prisoner be treated as a misdemeanant of
the first division, usually called "first-class misde-
meanant," and as such not to be deemed a crim-
inal prisoner, i. e., a prisoner convicted of a crime.
FIRST-CLASS TITLE. A marketable title, shown
by a clean record, or at least not depending on pre-
•
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FIRST TRIAL
sumptions that must be overcome or facts that
are uncertain. Vought v. Williams, 120 N.Y. 253,
24 N.E. 195, 8 L.R.A. 591, 17 Am.St.Rep. 634.
FIRST DEGREE BURN. One which produces an
inflammation of the outer layer of the skin, like
a sunburn. Smith v. Beard, 56 Wyo. 375, 110 P.
2d 260, 261, 262.
FIRST DEVISEE. The person to whom the es-
tate is first given by the will, term "next dev-
isee" referring to the person to whom the re-
mainder is given. Young v. Robinson, 5 N.J.L.
689; Wilcox v. Heywood, 12 RI. 198.
FIRST DOMESTIC PROCESSING. Refining or
saponification of coconut oil is a "processing" or
use thereof, and if the refining or saponification is
the first processing or use of the oil in the United
States, and occurs in the course of the manufac-
ture or production of any article intended for sale,
it is the "first domestic processing" within the
statute taxing the first domestic processing. Reve-
nue Act of 1934, § 602 1/2 (a), 26 U.S.C.A. § 2470(a).
Cincinnati Soap Co. v. U. S., D.C.Ohio, 22 F.Supp.
141.
FIRST FRUITS. In English ecclesiastical law,
the first year's whole profits of every benefice or
spiritual living, anciently paid by the incumbent to
the pope, but afterwards transferred to the fund
called "Queen Anne's Bounty," for increasing the
revenue from poor livings.
In feudal law, one year's profits of land which
belonged to the king on the death of a tenant in
capite; otherwise called "primer seisin." One of
the incidents to the old feudal tenures. 2 Bl.
Comm. 66, 67.
FIRST HEIR. The person who will be first en-
titled to succeed to the title to an estate after the
termination of a life estate or estate for years.
Winter v. Perratt, 5 Barn. & C. 48.
FIRST IMPRESSION. First examination. First
presentation to a court for examination or deci-
sion. A case is said to be "of the first impression"
when it presents an entirely novel question of law
for the decision of the court, and cannot be gov-
erned by any existing precedent.
FIRST IN, FIRST OUT RULE. It is not a rule
of law nor of logic, but a rule of thumb. It is a
presumption of fact and really a regulation of the
burden of proof. What is first sold is presumed to
be what was first bought. Ninth Bank & Trust
Co. v. U. S., D.C.Pa., 15 F.Supp. 951, 952.
FIRST INVENTOR. Within the meaning of that
phrase as used in the fourth paragraph of Rev.St.
§ 4920 (35 U.S.C.A. § 69), providing that it shall
be a defense to a suit for infringement that the
patentee was not the original or first inventor, a
person who perfects his invention, the only evi-
dence of such perfected invention ordinarily de-
rivable from any patent being a union of disclo-
sure and claim. Davis-Bournonville Co. v. Alex-
ander Milburn Co., C.C.A.N.Y., 1 F.2d 227, 232.
FIRST LIEN. One which takes priority or prece-
dence over all other charges or incumbrances up-
on the same piece of property, and which must be
satisfied before such other charges are entitled to
participate in the proceeds of its sale.
FIRST MEETING. As used in a statute provid-
ing that, for insulting words or conduct to reduce
homicide to manslaughter, killing must occur im-
mediately or at "first meeting" after slayer is
informed thereof, quoted words mean first time
parties are in proximity under such circumstances
as would enable slayer to act in the premises.
Smith v. State, 288 S.W. 458, 462, 105 Tex.Cr.R.
327.
FIRST OF EXCHANGE. Where a set of bills of
exchange is drawn in duplicate or triplicate, for
greater safety in their transmission, all being of
the same tenor, and the intention being that the
exceptance and payment of any one of them
(the first to arrive safely) shall cancel the others
of the set, they are called individually the "first of
exchange," "second of exchange," etc. See Bank
of Pittsburgh v. Neal, 22 How. 96, 110, 16 L.Ed.
323.
FIRST POLICY YEAR. This phrase in a statute
eliminating suicide of insured after such year as
defense, means year for which policy, annually re-
newed, was first issued. Carter v. Standard Acc.
Ins. Co., 65 Utah, 465, 238 P. 259, 267, 41 A.L.R.
1495. The year beginning with the issuance of
the policy. American Nat. Ins. Co. v. Thompson,
Tex.Civ.App., 186 S.W. 254, 255.
FIRST PROCESSING. The processing that first
results in a marketable product. Hendricks v. Di
Giorgio Fruit Corporation, D.C.Cal., 49 F.Supp.
573, 575, 576.
FIRST PURCHASER. In the law of descent, this
term signifies the ancestor who first acquired (in
any other manner than by inheritance) the estate
which still remains in his family or descendants.
Blair v. Adams, C.C.Tex., 59 F. 247.
FIRST RETURN. The "first return", within stat-
ute as to depletion deduction is a first return list-
ing items of gross income and deductions arising
out of the property. Commissioner of Internal
Revenue v. Alta Mines, C.C.A.10, 139 F.2d 580, 582.
FIRST TRIAL. Under a statute providing when
a case at law is tried by a jury, and the success-
ful party excepts to the granting of a new trial
for insufficiency of the evidence, and the evidence
is certified, the appellate court, if there have been
two trials below, shall first look to the evidence
and proceedings on the first trial, and, if the set-
ting aside of the first verdict was error, all pro-
ceedings subsequent thereto shall be annulled,
and judgment rendered thereon, the "first trial"
means the first at-which exceptions to the grant-
ing of a new trial were taken. Chesapeake & 0.
Ry. Co. v. Parker's Adm'r, 116 Va. 368, 82 S.E. 183,
187.
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FISC
FISC. A treasury of a kingdom or state; a mon-
ey chest. Daly v. Beery, 45 N.D. 287, 178 N.W.
104, 109. An Anglicized form of the Latin "fis-
cus," (which see.)
FISCAL. Of or pertaining to the public treas-
ury or revenue, of or pertaining to financial mat-
ters generally. Wall v. Close, 203 La. 345, 14 So.
2d 19, 26. Belonging to the fisc, or public treas-
ury. Relating to accounts or the management of
revenue. Of or pertaining to the public finances
of a government. Daly v. Beery, 45 N.D. 287, 178
N.W. 104, 109. Financial. Armstrong v. State
Bank of Mayville, 177 App.Div. 265, 165 N.Y.S. 5,
8.
FISCAL AGENT. This term does not necessarily
imply a depositary of the public funds, so as, by
the simple use of it in a statute, without any di-
rections in this respect, to make it the duty of the
state treasurer to deposit with him any moneys
in the treasury. State v. Dubuclet, 27 La.Ann. 29.
FISCAL COURT. A ministerial and executive
body in some states. Stone v. Winn, 165 Ky. 9,
176 S.W. 933, 941.
FISCAL JUDGE. A public officer named in the
laws of the Ripuarians and some other Germanic
peoples, apparently the same as the "Graf,"
"reeve," "comes," or "count," and so called be-
cause charged with the collection of public reve-
nues, either directly or by the imposition of fines.
See Spelman, voc. "Grafio."
FISCAL OFFICERS. Those charged with the
collection and distribution of public money, as, the
money of a state, county, or municipal corpora-
tion.
FISCAL YEAR. The year by or for which ac-
counts are reckoned, or the year between one an-
nual time of settlement or balancing of accounts
and another. People ex rel. Pollastrini v. Wheal-
an, 353 Ill. 500, 187 N.E. 491, 494. An accounting
period of 12 months. U. S. v. Mabel Elevator Co.
D.C.Minn., 17 F.2d 109, 110; U. S. v. Carroll Chain
Co., D.C.Ohio, 8 F.2d 529, 530. A period of twelve
months (not necessarily concurrent with the cal-
endar year) with reference to which appropria-
tions are made and expenditures authorized, and
at the end of which accounts are made up and the
books balanced. Shaffner v. Lipinsky, 194 N.C. 1,
138 S.E. 418, 419.
FISCUS. Roman law. The treasury of the prince
or emperor, as distinguished from "cerarium,"
which was the treasury of the state. Spelman;
Paillet, Droit Public, 21, n. This distinction was
not observed in France. In course of time the
Fiscus absorbed the cerarium and became the treas-
ury of the state. Gray, Nature and Sources of
Law 58. See Law 10, ff. De jure Fisci.
The treasury or property of the state, as distin-
guished from the private property of the sover-
eign.
English law. The king's treasury, as the re-
pository of forfeited property.
The treasury of a noble, or of any private per-
son. Spelman.
FISH. An animal which inhabits the water,
breathes by means of gills, swims by the aid of
fins, and is oviparous. The term includes crabs,
State v. Savage, 96 Or. 53, 184 P. 567, 570; escal-
lops, State v. Dudley, 182 N.C. 822, 109 S.E. 63, 65;
and mussels and other shellfish, Gratz v. McKee,
C.C.A.Mo., 258 F. 335, 336.
The object to be removed from oil well is known
as a "fish." Raymond v. Wickersham, Cust. &
Pat.App., 110 F.2d 863, 864.
FISH COMMISSIONER. A public officer of the
United States, created by act of congress of Feb-
ruary 9, 1871, R.S. § 4395, whose duties principal-
ly concerned the preservation and increase
throughout the country of fish suitable for food.
Office of Commissioner of Fisheries was abolished
and functions were transferred to the U. S. Fish
and Wildlife Service, 16 U.S.C.A. § 241 notes.
FISH POTS. Contrivances in the nature of
screens and traps, placed at the junction of low
dams or walls extending out from each shore and
somewhat down stream, in such a way as to col-
lect the water and send it through the pot, so
that fish may be screened out there. Middlekauff
v. Le Compte, 149 Md. 621, 132 A. 48.
Cf. Pound Net.
FISH ROYAL. These were the whale and the
sturgeon, which, when thrown ashore or caught
near the coast of England, became the property
of the king by virtue of his prerogative and in
recompense for his protecting Ole shore from pir-
ates and robbers. Brown; 1 Bl.Comm. 290. Ar-
nold v. Mundy, 6 N.J.L. 86, 10 Am.Dec. 356. Some
authorities include the porpoise. Hale, De Jure
Mar. pt. 1, c. 7; Plowd. 305; Bracton, L 3, c. 3.
FISHERY. A place prepared for catching fish
with nets or hooks. This is commonly applied to
the place of drawing a seine or net. Hart v. Hill,
1 Whart., Pa., 131, 132,
A right or liberty of taking fish; a species of
incorporeal hereditament, anciently termed "pis-
cary," of which there are several kinds. 2 Bl.
Comm. 34, 39; 3 Kent, Comm. 409-418; Arnold v.
Mundy, 6 N.J.L. 22, 10 Am.Dec. 356; Gould v.
James, 6 Cow., N.Y., 376; Hart v. Hill, 1 Whart.,
Pa., 124.
Common fishery. A fishing ground where all persons
have a right to take fish. Bennett v. Costar, 8 Taunt. 183;
Albright v. Park Com'n, 68 N.J.L. 523, 53 A. 612. Not to be
confounded with "common of fishery," as to which see
Common, n.
Free fishery. A franchise in the hands of a subject,
existing by grant or prescription, distinct from an owner-
ship in the soil. It is an exclusive right, and applies to a
public navigable river, without any right in the soil. 3
Kent, Comm. 410. Arnold v. Mundy, 6 N.J.L. 87, 10 Am.
Dec. 356.
Right of fishery. The general and common right of the
citizens to take fish from public waters, such as the sea,
great lakes, etc. Shively v. Bowlby, 152 U.S. 1, 14 S.Ct.
548, 38 L. Ed. 331.
Several fishery. A fishery of which the owner is also
the owner of the soil, or derives his right from the owner
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of the soil. 2 BI.Com. 39, 40; 1 Steph.Corrun. 671, note.
One by which the party claiming it has the right of fish-
ing, independently of all other, so that no person can have
a coextensive right with him in the object claimed; but
a partial and independent right in another, or a limited
liberty, does not derogate from the right of the owner. 5
Burr. 2814.
FISHERY LAWS. A series of statutes passed in
England for the regulation of fishing, especially
to prevent the destruction of fish during the breed-
ing season, and of small fish, spawn, etc., and the
employment of improper modes of taking fish. 3
Steph.Comm. 165.
FISHGARTH. A dam or weir in a river for tak-
ing fish. Cowell.
FISHING BANKS. A fishing ground of compar-
ative shoal water in the sea. Parker v. Thomson,
21 Or. 523, 28 P. 502.
FISHING BILL. A bill showing no cause of ac-
tion and endeavoring to compel defendants to
disclose one in plaintiff's favor. White v. Na-
tional Paving Co., Tex.Civ.App., 101 S.W.2d 588,
590. Or seeking disclosure by adversary of facts
supporting suit. Puget Sound Na y . Co. v. Asso-
ciated Oil Co., D.C.Wash., 56 F.2d 605, 606. A dis-
covery sought on general, loose, and vague alleg-
ations. Story, Eq.P1. § 325; In re Pacific Ry.
Com'n, C.C.Cal., 32 F. 263; or on suspicion, sur-
mise, or vague guesses. Marietta Mfg. Co. v.
Hedges-Walsh-Weidner Co., 9 W.W.Harr. 511, 2
A.2d 922, 926.
Where purpose of proposed examination of witness was
to examine books and records to determine status of an
account on which petitioner expected to sue, the proceed-
ing was a "fishing expedition". State ex rel. Pitcher v.
District Court of Fifth Judicial Dist. in and for Madison
County, 114 Mont. 128, 133 P.2d 350, 353.
FISK. In Scotch law, the fiscus or fist. The rev-
enue of the crown. Generally used of the personal
estate of a rebel which has been forfeited to the
crown. Bell.
FISSURE VEIN. In mining law, a vein or lode
of mineralized matter filling a pre-existing fissure
or crack in the earth's crust extending across the
strata and generally extending indefinitely down-
ward. See Crocker v. Manley, 164 Ill. 282, 45 N.E.
577, 56 Am.St.Rep. 196.
FISTUCA, or FESTUCA. In old English law, the
rod or wand, by the delivery of which the property
in land was formerly transferred in making a fe-
offment. Called, also, "baculum," "virga," and
lustis." Spelman. See Festuca.
FISTULA. In the civil law, a pipe for conveying
water. Dig. 8, 2, 18.
FIT. Suitable or appropriate. Whisnant v. State,
39 Okl.Cr. 214, 264 P. 837, 839. Conformable to a
duty. Adapted to, designed, prepared. Thomas v.
State, 34 Okl.Cr. 49, 244 P. 816. Proper. Hanes v.
Southern Public Utilities Co., 191 N.C. 13, 131 S.E.
402, 406.
FIT, n. In medical jurisprudence, an attack or
spasm of muscular convulsions, generally attend-
ed with loss of self-control and of consciousness;
particularly, such attacks occurring in epilepsy.
In a more general sense, the period of an acute
attack of any disease, physical or mental, as, a
fit of insanity. See Gunter v. State, 83 Ala. 96, 3
So. 600. Also used in the plural, in which sense
it is a layman's term for epilepsy. Westphal' v.
Metropolitan Life Ins. Co., 27 Cal.App. 734, 151
P. 159, 162.
FITZ. A Norman word, meaning "son." It is
used in law and genealogy; as Fitzherbert, the
son of Herbert; Fitzjames, the son of James;
Fitzroy, the son of the king. It was originally
applied to illegitimate children.
FIVE-MILE ACT. An act of parliament, passed
in 1665, against non-conformists, whereby minis-
ters of that body who refused to take the oath of
non-resistance were prohibited from coming with-
in five miles of any corporate town, or place where
they had preached or lectured since the passing
of the act of oblivion in 1660, nullified by act of
1689. Brown.
FIX. Adjust or regulate. McKann v. Town of
Irvington, 133 N.J.L. 63, 42 A.2d 391, 393. Deter-
mine; settle. Bunn v. Kingsbury County, 3 S.D.
87, 52 N.W. 673; In re McLure's Estate, 68 Mont.
556, 220 P. 527, 530. Make permanent. Kendall
v. Stafford, 178 N.C. 461, 101 S.E. 15, 17. It im-
ports finality and stability. MacNeill v. Baze-
more, 194 Ga. 406, 21 S.E.2d 414, 416. Certainty
and definiteness. Commercial Casualty Ins. Co.
v. State Board of Tax Appeals, 119 N.J.L. 94, 194
A. 390, 391.
To liquidate or render certain. To fasten a liability
upon one. To transform a possible or contingent liability
into a present and definite liability. Zimmerman v. Can-
field, 42 Ohio St. 468; Polk v. Minnehaha County, 5 Dak.
129, 37 N.W. 93; Logansport & W. V. Gas Co. v. Peru,
C.C.Ind., 89 F. 187.
FIX UP. A promise by a debtor to visit his cred-
itor and "fix it up" with him was not a sufficient
promise to pay to toll the statute of limitations, as
the expression "fix it" would ordinarily be un-
derstood as meaning "make some kind of agree-
ment or adjustment that may dispose of it."
Shaw v. Bubier, 119 Me. 83, 109 A. 373, 374.
FIXED. In a charter entered into by the captain
of a ship, containing the condition, "Provided
ship not fixed previously," "fixed" was equivalent
to "tied up," "closed," "not free." Richichi v.
James B. Drake & Sons, D.C.Me., 280 F. 421, 424.
Prices are "fixed" when they are agreed upon.
United States v. Masonite Corporation, N.Y., 316
U.S. 265, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461.
FIXED ASSET. An asset essential to continu-
ance of undertaking and proper operation of busi-
ness. Ruden v. City of Platte, 62 S.D. 175, 252
N.W. 32.
FIXED CAPITAL. Cost of total plant and gener-
al equipment. Lindheimer v. Illinois Bell Tele-
phone Co., Ill., 292 U.S. 151, 54 S.Ct. 658,  L.Ed.
1182.
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FIXED
FIXED INDEBTEDNESS. An established or set-
tled indebtedness; not contingent. State ex rel.
Hawkins v. State Board of Examiners, 97 Mont.
441, 35 P.2d 116, 120.
FIXED LIABILITIES. Those certain and defin-
ite as to both obligation and amount. National
Commercial Title & Mortgage Guaranty Co. v.
City of Newark, 18 N.J.Misc. 186, 11 A.2d 759, 763.
FIXED OPINION. A conviction, prejudgment,
disqualifying juror to impartially consider whole
evidence and apply free from bias law as given in
charge by court. Peterson v. State, 227 Ala. 361,
150 So. 156, 159.
FIXED PRICES. Agreed prices. United States
v. Food and Grocery Bureau of Southern Califor-
nia, D.C.CaI., 43 F.Supp. 966, 972.
FIXED SALARY. One which is definitely ascer-
tained and prescribed as to amount and time of
payment, and does not depend upon the receipt
of fees or other contingent emoluments; not nec-
essarily a salary which cannot be changed by com-
petent authority. Sharpe v. Robertson, 5 Grat.,
Va., 518; Hedrick v. U. S., 16 Ct.C1. 101. Estab-
lished or settled, to remain for a time. Board of
Sup'rs of Yavapai County v. Stephens, 177 P. 261,
262, 20 Ariz. 115.
`FIXING BAIL. In practice, rendering absolute
the liability of special bail.
FIXTURE. A chattel attached to realty, In re
Triborough Bridge Approach, City of New York,
159 Misc. 617, 288 N.Y.S. 697, 707. Becoming ac-
cessory to it and part and parcel of it. Farmers
& Merchants Bank v. Sawyer, 26 Ala.App. 520,
163 So. 657. And ordinarily the property of the
owner of the land. Hill.; Atlantic Refining Co. v.
Feinberg, 1 W.W.Harr., Del., 183, 112 A. 685, 687;
Red Diamond Clothing Co. v. Steidemann, 169 Mo.
App. 306, 152 S.W. 609, 617.
A. thing is deemed to be affixed to land when it is at-
tached to it by roots, imbedded in it, permanently resting
upon it, or permanently attached to what is thus perma-
nent, as by means of cement, plaster, nails, bolts, or
screws. Civ.Code Cal. § 660; Big Sespe Oil Co. v. Cochran,
C.C.A.Cal., 276 F. 216, 225.
Ordinarily, requisites are actual annexation to realty,
or something appurtenant thereto, appropriation to use or
purpose of realty, and intention to make article permanent
accession to freehold as gathered from nature of articles
affixed, relation and situation of person making annexa-
tion, structure and mode of annexation, and purpose or
use for which it has been made. Bankers Life Ins. Co. v.
Ohrt, 131 Neb. 858, 270 N.W. 497, 502.
It has been said, however, that a "fixture" formerly
meant any chattel which on becoming affixed to the soil
became a part of the realty; but it now means those things
which formed an exception to that rule and can be re-
moved by the person who affixed them to the soil, L.R. 4
Ex. 328; if they can be taken away without material in-
jury to the realty. Boise Ass'n of Credit Men v. Ellis, 26
Idaho, 438, 144 P. 6, 9, L.R.A.1915E, 917.
It has also been said that it is generally understood to
comprehend any article which a tenant has the power to
remove. Sheen v. Rickie, 5 Mees. & W. 174; Rogers v. Gil-
inger, 30 Pa. 185, 189, 72 Am. Dec. 694.
The general result seems to be that three views have
been taken. One is that "fixture" means something which
has been affixed to the realty, so as to become a part of it;
it is fixed, irremovable. An opposite view is that "fixture"
means something which appears to be a part of the realty,
but is not fully so; it is only a chattel fixed to it, but re-
movable. An intermediate view is that "fixture" means a
chattel annexed, affixed, to the realty, but imports noth-
ing as to whether it is removable; that is to be de-
termined by considering its circumstances and the relation
of the parties. Abbott; New Castle Theater Co. v. Ward,
57 Ind.App. 473, 104 N.E. 526, 527; Review Printing Co.
v. Hartford Fire Ins. Co., 133 Minn. 213, 158 N.W. 39, 40.
Things fixed or affixed to other things. The rule of law
regarding them is that which is expressed in the maxim,
"accessio cedit principali," "the accessory goes with, and
as part of, the principal subject-matter." Brown.
That which is fixed or attached to something
permanently as an appendage, and not removable.
Webster. Something fixed or immovable. Wor-
cester.
A piece of metal having the same function as a jig, ex-
cept that the operation upon the casting, which it is de-
signed to facilitate, is an operation of grooving and plan-
ing, instead of drilling holes. Commonwealth Trust Co.
of Pittsburgh v. Harkins, 312 Pa. 402, 167 A. 278, 280.
Agricultural fixtures. Those annexed for the purpose
of farming. In re Shelar, D.C.Pa., 21 F.2d 136, 138.
Domestic fixtures. All such articles as a tenant attaches
to a dwelling house in order to render his occupation more
comfortable or convenient, and which may be separated
from it without doing substantial injury, such as furnaces,
stoves, cupboards, shelves, bells, gas fixtures, or things
merely ornamental, as painted wainscots, pier and chimney
glasses, although attached to the walls with screws, matble
chimney pieces, grates, beds nailed to the walls, window
blinds and curtains. Wright v. Du Bignon, 40 S.E. 747,
114 Ga. 765, 57 L.R.A. 669.
Trade fixtures. Articles placed in or attached to rented
buildings by the tenant, to prosecute the trade or business
for which he occupies the premises, or to be used in con-
nection with such business, or promote convenience and
efficiency in conducting it. Herkimer County L. & P. Co.
v. Johnson, 37 App.Div. 257, 55 N.Y.Supp. 924; Brown v.
Reno Electric L. & P. Co., C.C.Nev., 55 F. 231; North-
western Lumber & Wrecking Co. v. Parker, 125 Minn. 107,
145 N.W. 964, 965. Such chattels as merchants usually pos-
sess and annex to the premises occupied by them to en-
able them to store, handle, and display their goods, which
are generally removable without material injury to the
premises. Lovett v. Bermingham-Seaman-Patrick Co., 192
Mich. 372, 158 N.W. 881, 883.
FLACO. A place covered with standing water.
FLAG. A national standard on which are certain
emblems; ark ensign; a banner.
It is carried by soldiers, ships, etc., and commonly dis-
played at forts and many other suitable places.
In common parlance, the word "flag," when used as de-
noting a signal, does not necessarily mean the actual use
of a flag, but by figure of speech the word is used in the
secondary sense and signifies a signal given as with a flag,
that is to say, as by a waiving of the hand for the purpose
of communicating information. Bergfeld v. Kansas City
Rys. Co., 285 Mo. 654, 227 S.W. 106, 110.
FLAG, DUTY OF THE. This was an ancient cer-
emony in acknowledgment of British sovereignty
over the British seas, by which a foreign vessel
struck her flag and lowered her top-sail on meet-
ing the British flag.
FLAG, LAW OF. In maritime law. The law of
that nation or country whose flag is flown by a
particular vessel.
A shipowner who sends his vessel into a foreign port
gives notice by his flag to all who enter into contracts
with the master that he intends the law of that flag to
regulate such contracts, and that they must either submit
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to its operation or not contract with him. Ruhstrat v.
People, 185 Ill. 133, 57 N.E. 41, 49 L.R.A. 181, 76 Am.St.Rep.
30.
FLAG OF THE UNITED STATES. By the act en-
titled "An act to establish the flag of the United
States," (Rev.St. §§ 1791, 1792), it was provided
"that, from and after the fourth day of July next,
the flag of the United States be thirteen horizon-
tal stripes, alternate red and white; that the un-
ion be twenty stars, white in a blue field; that, on
the admission of every new state into the Union,
one star be added to the union of the flag; and
that such addition shall take effect on the fourth
day of July then next succeeding such admis-
sion." See Act July 30, 1947, c. 389, §§ 1, 2, 61
Stat.. 641; 4 U.S.C.A. §§ 1, 2.
FLAG OF TRUCE. A white flag displayed by one
of two belligerent parties to notify the other party
that communication and a cessation of hostilities
are desired.
FLAGELLAT. Whipped; scourged. An entry on
old Scotch records. 1 Pitc.Crim.Tr. pt. 1, p. 7.
FLAGRANS. Lat. Burning; raging; in actual
perpetration.
FLAGRANS BELLUM. A war actually going on.
FLAGRANS CRIMEN. In Roman law, a fresh
or recent crime. This term designated a crime
in the very act of its commission, or while it was
of recent occurrence.
FLAGRANT DELIT. In French law, a crime
which is in actual process of perpetration or which
has just been committed. Code d'Instr. Crim. art.
41.
FLAGRANT NECESSITY. A case of urgency ren-
dering lawful an otherwise illegal act, as an as-
sault to remove a man from impending danger.
FLAGRANTE BELLO. During an actual state of
war.
FLAGRANTE DELICTO. In the very act of corm
mitting the crime. 4 Bl.Comm. 307.
FLAGRANTLY AGAINST EVIDENCE. Without
any substantial support in evidence. Williams v.
Commonwealth, 276 Ky. 754, 125 S.W.2d 221, 223.
So much against weight of evidence as to shock
conscience and clearly indicate passion and preju-
dice of jury. Smith v. Commonwealth, 216 Ky. 813,
288 S.W. 752, 754.
FLASH CHECK. A check drawn upon a banker
by a person who has no funds at the banker's and
knows that such is the case.
FLAT. A place covered with water too shallow
for navigation with vessels ordinarily used for
commercial purposes. The space between high
and low water mark along the edge of an arm of
the sea, bay, tidal river, etc. Thomas v. Hatch, 23
F.Cas. 946; Church v. Meeker, 34 Conn. 424; Jones
v. Janney, 8 Watts & S., Pa., 443, 42 Am.Dec. 309.
A floor or separate division of a floor, fitted for
housekeeping and designed to be occupied by a
single family. Cent.Dict. A building, the various
floors of which are fitted up as flats, either residen-
tial or business.
A contrivance upon which lumber is piled and
is not movable by wheels affixed thereto but must
be moved by the use of jacks. Mengel Co. v. Park-
er, 192 Miss. 634, 7 So.2d 521, 522.
FLATTERY. False or excessive praise, insincere
complimentary language or conduct. Smith v.
State, 13 Ala.App. 399, 69 So. 402, 404.
FLAVIANUM JUS. In Roman law, the title of a
book containing the forms of actions, published by
Cneius Flavius, A. U. C. 449. Mackeld.Rom.Law,
§ 39. Calvin.
FLECTA. A feathered or fleet arrow. Cowell.
FLEDWITE. A discharge or freedom from
amercements where one, having been an outlawed
fugitive, cometh to the place of our lord of his own
accord. Termes de la Ley.
The liberty to hold court and take up the amerce-
ments for beating and striking. Cowell.
The fine set on a fugitive as the price of obtain-
ing the king's freedom. Spelman.
FLEE FROM JUSTICE. Removing one's self
from or secreting one's self within jurisdiction
wherein offense was committed, Renner v. Renner,
13 N.J.Misc. 749, 181 A. 191, or leaving one's home,
residence, or known place of abode, or concealing
one's self therein, with intent, in either case, to
avoid detection or punishment for some public
offense. Streep v. U. S., 160 U.S. 128, 16 S.Ct. 244,
40 L.Ed. 365; Lay v. State, 42 Ark. 110; U. S. v.
O'Brian, 3 Dill. 381, F.Cas.No.15,908.
FLEE TO THE WALL. A metaphorical expres-
sion, used in connection with homicide done in self-
defense, signifying the exhaustion of every pos-
sible means of escape, or of averting the assault,
before killing the assailant.
FLEET. A place where the tide flows; a creek,
or inlet of water; a company of ships or navy; a
prison in London (so called from a river or ditch
formerly in its vicinity,) now abolished by 5 & 6
Vict. c. 22. See Fleta.
FLEM. In Saxon and old English law, a fugitive
bondman or villein. Spelman.
The privilege of having the goods and fines of
fugitives.
FLEMENE FRIT, FLEMENES FRINTHE, OR
FLYMENA FRYNTHE. (A corrupt pseudo-ar-
chaic form is ftemens-firth, representing the old
law Latin form, ftemenaferth, of the Anglo-Saxon
fiyman fyrmth or flymena fyrmth. Cent. Diet.)
The reception or relief of a fugitive or outlaw.
Jacob.
FLEMESWITE. The possession of the goods of
fugitives. Fleta, lib. 1, c. 147.
FLET. In Saxon law, land; a house; home.
FLETA. The name given to an ancient treatise
on the laws of England, founded mainly upon the
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writings of Bracton and Glanville, and supposed
to have been written in the time of Edw. I. The
author is unknown, but it is surmised that he was
a judge or learned lawyer who was at that time
confined in the Fleet prison, whence the name of
the book.
FLEXIBLE PARTICIPATION BANK NIGHT. A
scheme whereby some method is employed by
means of which some persons obtain chances to
win without purchasing theater tickets. Common-
wealth v. Lund, 142 Pa.Super. 208, 15 A.2d 839, 842.
FLEXIBLE PARTICIPATION SCHEME. A
scheme whereby sum of money is given to member
of audience holding registered number drawn from
a hopper at theater. The scheme is one form of a
lottery. Commonwealth v. Lund, 142 Pa.Super.
208, 15 A.2d 839, 846.
FLICHWITE. In Saxon law, a fine on account of
brawls and quarrels. Spelman.
FLIGHT. The evading of the course of justice
by voluntarily withdrawing one's self in order to
avoid arrest or detention, or the institution or con-
tinuance of criminal proceedings, regardless of
whether one leaves jurisdiction. Commonwealth
v. Myers, 131 Pa.Super. 258, 200 A. 143, 146. Also
comprehends continued concealment. Common-
wealth v. Fusel, 153 Pa.Super. 617, 35 A.2d 93, 95.
"Flim-flam" is a form of bunco or
confidence game. Commonwealth v. Townsend,
149 Pa.Super. 337, 27 A.2d 462, 463.
FLOAT. Checks in process of collection. Lewis
v. West Side Trust & Savings Bank, 376 Ill. 23, 32
N.E.2d 907, 914; Hillmer v. Chicago Bank of Com-
merce, 375 Ill. 266, 31 N.E.2d 309, 316.
In American land law, especially in the western
states, a certificate authorizing the entry, by the
holder, of a certain quantity of land not yet specifi-
cally selected or located. U. S. v. Central Pac. R.
Co., C.C.Cal., 26 F. 480; Hays v. Steiger, 76 Cal.
555, 18 P. 670; Wisconsin Cent. R. Co. v. Price
County, 133 U.S. 496, 10 S.Ct. 341, 33 L.Ed. 687.
FLOATABLE. Used for floating. A floatable
stream is a stream used for floating logs, rafts,
etc. Gerrish v. Brown, 51 Me. 260, 81 Am.Dec. 569;
Gaston v. Mace, 33 W.Va. 14, 10 S.E. 60, 5 L.R.A.
392, 25 Am.St.Rep. 848; Fortson Shingle Co. v.
Skagland, 77 Wash. 8, 137 P. 304, 305.
FLOATING BOG. A mass of grass reeds or oth-
er acquatic vegetation growing and floating on the
water. Attorney General v. Bay Boom Wild Rice
& Fur Farm, 172 Wis. 363, 178 N.W. 569, 572.
FLOATING CAPITAL (or circulating capital).
Capital retained for the purpose of meeting cur-
rent expenditure.
The capital which is consumed at each operation
of production and reappears transformed into new
products.
At each sale of these products the capital is represented.
In cash, and it is from its transformations that profit is de-
rived. Floating capital includes raw materials destined for
fabrication, such as wool and flax, products in the ware-
houses of manufacturers or merchants, such as cloth and
linen, and money for wages, and stores. De Laveleye,
Pol.Ec.
FLOATING CHARGE. A continuing charge on
the assets of the company creating it, but permit-
ting the company to deal freely with the property
in the usual course of business until the security
holder shall intervene to enforce his claim. Penn-
sylvania Co. for Insurance on Lives and Granting
Annuities v. United Railways of Havana & Regla
Warehouses, D.C.Me., 26 F.Supp. 379, 387, 388.
FLOATING DEBT. Loans for which no perma-
nent provision was required to be made, which
have been obtained for temporary purposes, with
intention of paying them off within a brief period.
State Budget Commission v. Lebus, 244 Ky. 700,
51 S.W.2d 965.
Lawful and valid claims against the corporation
for the payment of which there is no money in the
corporate treasury specifically designed, nor any
taxation nor other means of providing money to
pay particularly provided. People v. Wood, 71 N.
Y. 374; City of Huron v. Second Ward Sa y . Bank,
S.D., 30 C.C.A. 38, 86 F. 276, 49 L.R.A. 534.
Debt not in the form of bonds or stocks bearing
regular interest. Pub.St.Mass.1882, p. 1290. State
v. Faran, 24 Ohio St. 541; People v. Carpenter, 31
App.Div. 603, 52 N.Y.S. 781.
FLOATING POLICY. A policy intended to supple-
ment specific insurance on property and attaches
only when the latter ceases to cover the risk, and
the purpose of such policy is to provide indemnity
for property which cannot, because of its frequent
change in location and quantity, be covered by spe-
cific insurance. Davis Yarn Co. v. Brooklyn Yarn
Dye Co., 293 N.Y. 236, 56 N.E.2d 564, 570.
FLOATING SECURITY. An equitable charge on
the assets for the time being of a going concern.
Lord Macnaghten in Government Stock Inv. Co.
v. Manila Ry. Co., [18971 A.C. 81. Pennsylvania
Co. for Insurance on Lives and Granting Annuities
v. United Railways of Havana & Regla Ware-
houses, D.C.Me., 26 F.Supp. 379, 387.
FLODE-MARK. Flood-mark, high-water mark.
The mark which the sea, at flowing water and
highest tide, makes on the shore. Blount.
FLOGGING. Thrashing or beating with a whip
or lash.
FLOOD. An inundation of water over land not
usually covered by it. Such an accident is an Act
of God. McHenry v. R. Co., 4 Harr. (Del.) 449.
See Act, of God. Of variable meaning. City of
Tulsa v. Grier, 114 Okl. 93, 243 P. 753, 757.
Ordinary and extraordinary floods. Extraordinary or
unprecedented floods are floods which are of such unusual
occurrence that they could not have been foreseen by men
of ordinary experience and prudence. Ordinary floods are
those, the occurrence of which may be reasonably antici-
pated from the general experience of men residing in the
region where such floods happen. Soules v. Northern Pac.
Ry. Co., 34 N.D. 7, 157 N.W. 823, 830, L.R.A.1917A, 501;
Eikland v. Casey, C.C.A.Alaska, 12 A.L.R. 179, 266 F. 821,
823; Clements v. Phoenix Utility Co., 119 Kan. 190, 237 P.
1062, 1065.
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FLOWING
FLOOD WATERS. Waters which escape from
stream or other body of water and overflow adja-
cent territory, Poole v. Sun Underwriters Ins. Co.
of New York, 65 S.D. 422, 274 N.W. 658, 660;
under conditions which do not usually occur.
Thomson v. Public Service Commission, 241 Wis.
243, 5 N.W.2d 769, 771; Everett v. Davis, 18 Cal.
2d 389, 115 P.2d 821, 823, 824.
Where a stream coming out of the mouth of a canyon
has left a cone of detritus and flows down one side thereof,
but in a time of high water it breaks out of its channel to
flow down the other slope of the cone, such waters are
"flood waters", it being immaterial that the escaping
waters have made for themselves a channel or follow some
natural channel, gulley, or depression. Horton v. Good-
enough, 184 Cal. 451, 194 P. 34, 35 ; Motl v. Boyd, 116
Tex. 82, 286 S.W. 458, 468; Herminghaus v. Southern Cali-
fornia Edison Co., 200 Cal. 81, 252 P. 607, 610.
FLOOR. A section of a building between hori-
zontal planes. Lowell v. Strahan, 145 Mass. 1, 12
N.E. 401, 1 Am.St.Rep. 422. A story, including
outer walls. Leominster Fuel Co. v. Scanlon, 243
Mass. 126, 137 N.E. 271, 24 A.L.R. 1459.
The word "floor" may mean the mere bottom plane of an
inclosure or artificial structure, the surface on which we
walk, ride, or travel, or it may mean such surface or plane,
together with the timbers, framework, and materials which
enter into and form part of its construction. So of the
word "flooring," If used without reference to a structure
in its completed form, it would ordinarily convey the idea
of materials suitable for use in constructing a floor, or in
a narrower sense the boards or planks for covering the
framework of a floor. When used with reference to a
completed structure, it may mean either the materials of
which the floor is composed, or the completed floor struc-
ture. When not attempting to speak with technical, exact-
ness, the words "floor" and "flooring" may be, and often
are, used as synonymous or interchangeable terms, Cedar
Rapids & M. C. R. Co. v. City of Cedar Rapids, 173 Iowa
386, 155 N.W. 842; Missouri Pac, R. Co. v. Holt, C.C.A.
Ark. 293 F. 155, 157.
A term used metaphorically, in parliamentary
practice, to denote the exclusive right to address
the body in session.
A member who has been recognized by the chairman,
and who is in order, is said to "have the floor," until his
remarks are concluded. Similarly, the "floor of the house"
means the main part of the hall where the members sit,
as distinguished from the galleries, or from the corridors
or lobbies.
In England, the floor of a court is that part between the
judge's bench and the front row of counsel. Litigants ap-
pearing in person, in the high court or court of appeal, are
supposed to address the court from the floor.
FLOOR BROKER. Broker's sub-agent. Helfhat v.
Whitehouse, 258 N.Y. 274, 179 N.E. 493, 496.
FLOOR PLAN. A horizontal section drawing
showing the thickness of walls and partitions, ar-
rangement of passages, apartments, and openings
at any floor of a building. Webster.
FLOOR PLAN RULE. Rule by which an owner
who has placed an automobile on the floor of a
retail dealer's showroom for sale is estopped to
deny the title of an innocent purchaser from such
dealer in the ordinary retail dealing, without
knowledge of any conflicting claim. National
Guarantee & Finance Co. v. Russell, Ohio App.,
36 N.E.2d 1015, 1018.
FLOOR PLAN SERVICE. The buying and financ-
ing of automobiles by finance company and plac-
Black's Law Dictionary Revised 4th Ed.-49
ing them on the floor of the dealer, so that dealer
may resell automobiles to his retail trade. Asso-
ciates Discount Corporation v. Haynes Garage,
304 Mass. 526, 24 N.E.2d 685, 687.
FLOOR PLANNING. Financing automobiles for
dealers. Associates Discount Corporation v.
Haynes Garage, 304 Mass. 526, 24 N.E.2d 685, 687.
FLOORED. In automobile law. An automobile
is floored when it is financed under a trust receipt
or similar title retention document, whereby re-
tail dealer obtains possession of automobile from
distributor for exhibition and sale through pay-
ment to distributor by finance company. Com-
mercial Credit Co. v. Barney Motor Co., 10 Ca1.2d
718, 76 P.2d 1181, 1183; Blashfield, Cyc. of Auto-
mobile Law and Prac., Perm. Ed., § 4755.
FLORENTINE PANDECTS. A copy of the Pan-
dects discovered accidentally about the year 1137,
at Amalphi, a town in Italy, near Salerno.
FLORIN. A coin originally made at Florence,
now of the value of about two English shillings.
FLOTAGES. Such things as by accident float on
the top of great rivers or the sea. Blount.
A commission paid to water bailiffs. Cun.Dict.
FLOTERIAL DISTRICT. A legislative district
which includes within its boundaries several sep-
arate districts or political subdivisions which in-
dependently would not be entitled to additional
representation but whose conglomerate population
entitles the entire area to another seat in the par-
ticular legislative body being apportioned. Kil-
garlin v. Martin, D.C.Tex., 252 F.Supp. 404, 419;
Davis v. Mann, Va., 84 S.Ct. 1441, 1446, 377 U.S.
678, 12 L.Ed.2d 609.
FLOTSAM, FLOTSAN. A name for the goods
which float upon the sea when cast overboard for
the safety of the ship, or when a ship is sunk. Dis-
tinguished from "jetsam" and "ligan." Bract. lib.
2, c. 5; 5 Coke, 106; 1 B1.Comm. 292.
FLOUD-MARKE. In old English law, high-water
mark; flood-mark. 1 And. 88, 89.
FLOURISH. The act of brandishing or waving;
a swinging or whirling movement as flourish of
a whip or sword; to fling or whirl about while
holding in the hand, brandish, flaunt, as, he- flour-
ished his whip. State v. Boyles, 24 N.M. 464, 174
P. 423.
FLOWAGE. The natural flow or movement of wa-
ter from an upper estate to a lower one is a servi-
tude which the owner of the latter must bear,
though the flowage be not in a natural water
course with well defined banks. Leidlein v. Meyer,
95 Mich. 586, 55 N.W. 367; Ogburn v. Connor, 46
Cal. 346, 13 Am.Rep. 213; Gray v. McWilliams, 98
Cal. 157, 32 P. 976, 21 L.R.A. 593, 35 Am.St.Rep.
163.
FLOWING. Movement, as if in a current or
stream. Homer Brooke Glass Co. v. Hartford-
Fairmont Co., C.C.A.Conn., 262 F. 427, 431.
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FLOWING
FLOWING LANDS. Imports raising and setting
back water on another's land, by a dam placed
across a stream or water course which is the nat-
ural drain and outlet for surplus water on such
land. Call v. Middlesex County Com'rs, 2 Gray,
Mass., 235.
FLUCTUS. Flood; flood-tide. Bract. fol. 255.
FLUME. Primarily, a stream or river, but usually
used to designate an artificial channel applied to
some' definite use, and may mean either an open
or a covered aqueduct. Talbot v. Joseph, 79 Or.
308, 155 P. 184, 186.
FLUMEN.
In Roman law, a servitude which consists in the
right to conduct the rain-water, collected from
the roof and carried off by the gutters, onto the
house or ground of one's neighbor. Mackeld.Rom.
Law, § 317; Ersk.Inst. 2, 9, 9. Also a river or
stream.
In old English law, flood; flood-tide.
FLUMINA ET PORTUS PUBLICA SUNT, IDEO-
QUE JUS PISCANDI OMNIBUS COMMUNE EST.
Rivers and ports are public. Therefore the right
of fishing there is common to all. Day. Ir. K. B.
55; Branch, Princ.
FLUMINAZE VOLUCRES. Wild fowl; waterfowl.
11 East, 571, note.
FLUVIUS. Lat. A river; a public river; flood;
flood-tide.
FLUXUS. In old English law, flow. Per fluxum et
refluxum marls, by the flow and reflow of the sea.
Dal. p1.10.
FLY FOR IT. Anciently, it was the custom in a
criminal trial to inquire after a verdict, "Did he
fly for it?" After the verdict, even if not guilty,
forfeiture of goods followed conviction upon such
inquiry. Abolished by 7 & 8 Geo. IV. c. 28. Whar-
ton.
FLYING MACHINE. A heavier-than-air machine
capable of soaring in the air and susceptible to
being guided by a pilot into different altitudes
when aloft. Myers v. United States, Ct.C1., 25 F.
Supp. 500, 501.
FLYING SWITCH. In railroading, a flying switch
is made by uncoupling the cars from the engine
while in motion, and throwing the cars onto the
side track, by turning the switch, after the engine
has passed it upon the main track. Greenleaf v.
Illinois Cent. R. Co., 29 Iowa 39, 4 Am.Rep. 181;
Hanson v. Chicago, M. & St. P. R. Co., 157 Wis.
455, 146 N.W. 524, 525.
FLYMA. In old English law, a runaway; fugitive;
one escaped from justice, or who has no "hlaford."
FLYMAN-FRYMTH. See Flemene Frit.
FLY-POWER. A written assignment in blank,
whereby, on being attached to a stock certificate,
the stock may be transferred. Carlisle v. Norris,
215 N.Y. 400, 109 N.E. 564, 565, Ann.Cas.1917A,
429; Carlisle v. Norris, 157 App.Div. 313, 142 N.
Y.S. 393, 396.
FOAL, v. To bring forth young; said of animals
of the horse family. O'Rear v. Richardson, 17
Ala.App. 87, 81 So. 865, 866.
FOCAGE. House-bote; fire-bote. Cowell.
FOCALE. In old English law, firewood. The
right of taking wood for the fire. Fire-bote. Cun-
ningham.
FODDER. Food for horses or cattle. In feudal
law, the term also denoted a prerogative of the
prince to be provided with corn, etc., for his horses
by his subjects in his wars.
FODERTORIUM. Provisions to be paid by custom
to the royal purveyors. Cowell.
FODERUM. See Fodder.
FODINA. A mine. Co.Litt. 6a.
F1EDUS. In international law, a treaty; a league;
a compact.
FCEMINA VIRO CO-OPERTA. A married wo-
man; a feme covert.
FCEMINZE AB OMNIBUS OFFICIIS CIVILIBUS
VEL PUBLICIS REMOTIE SUNT. Women are
excluded from all civil and public charges or of-
fices. Dig. 50, 17, 2; 1 Exch. 645; 6 Mees. & W.
216.
FCEMINZE NON SUNT CAPACES DE PUBLICIS
OFFICIIS. Jenk.Cent. 237. Women are not ad-
missible to public offices.
FCENERATION. Lending money at interest; the
act of putting out money to usury.
FCENUS. Lat. In the civil law, interest on mon-
ey; the lending of money on interest.
FCENUS NAUTICUM. Nautical or maritime in-
terest.
FCENUS UNCIARIUM. Interest of one-twelfth,
that is, interest amounting annually to one-twelfth
of the principal, hence at the rate of eight and
one-third per cent. per annum. This was the high-
est legal rate of interest in the early times of the
Roman republic. See Mackeld.Rom.Law, § 382.
An extraordinary rate of interest agreed to be paid for
the loan of money on the hazard of a voyage; sometimes
called "usura maritima." Dig. 22, 2; Code, 4, 33; 2 Bl.
Comm. 458. The extraordinary rate of interest, propor-
tioned to the risk, demanded by a person, lending money
on a ship, or on "bottomry," as it is termed. The agree-
ment for such a rate of interest is also called "fcenus nau-
ticum." (2 B1.Comm. 458; 2 Steph.Comm. 93.) Mozley
& Whitley.
FU SA. In old records, grass; herbage. 2 Mon.
Angl. 906b; Cowell.
FETICIDE. See Feticide.
FCETURA. In the civil law, the produce of ani-
mals, and the fruit of other property, which are
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acquired to the owner of such animals and prop-
erty by virtue of his right. Bowyer, Mod.Civil
Law, c. 14, p. 81
FETUS. In medical jurisprudence, an unborn
child. An infant in ventre sa mere.
FOG. In maritime law, any atmospheric condi-
tion (including not only fog properly so called,
but also mist or falling snow) which thickens the
air, obstructs the view, and so increases the perils
of navigation. Flint & P. M. R. Co. v. Marine Ins.
Co., C.C.Mich., 71 F. 210; Dolner v. The Monticello,
7 F.Cas. 859.
FOGAGIUM. In old English law, foggage or fog;
a kind of rank grass of late growth, and not eaten
in summer. Spelman; Cowell.
FOL In French feudal law, faith; fealty. Guyot,
Inst.Feod. c. 2.
FOINESUN. In old English law, the fawning of
deer. Spelman.
FOIRFAULT. In old Scotch law, to forfeit. 1
How.State Tr. 927.
FOERTHOCHT. In old Scotch law, forethought;
premeditated. 1 Pitc.Crim.Tr. pt. 1, p. 90.
FOITERERS. Vagabonds. Blount.
FOLC-GEMOTE (spelled, also, folkmote, folcmote,
folkgemote; from folc, people, and gemote, an as-
sembly). In Saxon law, a general assembly of
the people in a town or shire.
It appears to have had judicial functions of a limited
nature, and also to have discharged political offices, such
as deliberating upon the affairs of the commonwealth or
complaining of misgovernment, and probably possessed
considerable powers of local self-government. The name
was also given to any sort of a popular assembly. See
Spelman; Manwood; Cunningham.
FOLC-LAND. In Saxon law, land of the folk or
people. Land belonging to the people or the pub-
lic.
Folc-land was the property of the community. It might
be occupied in common, or possessed in severalty; and, in
the latter case, it was probably parceled out to individuals
in the folc-gemote or court of the district, and the grant
sanctioned by the freemen who were there present. But,
while it continued to be folc-land, it could not be alienated
in perpetuity; and therefore, on the expiration of the term
for which it had been granted, it reverted to the communi-
ty, and was again distributed by the same authority. It
was subject to many burdens and exactions from which
boc-land was exempt. Wharton.
FOLC-MOTE. A general assembly of the people,
under the Saxons. See Folc-Gemote.
FOLC-RIGHT. The common right of all the peo-
ple. 1 Bl.Comm. 65, 67.
The jus commune, or common law, mentioned in the
laws of King Edward the Elder, declaring the same
equal right, law, or justice to be due to persons of all de-
grees. Wharton.
FOLD-COURSE. In English law, land to which
the sole right of folding the cattle of others is
appurtenant. Sometimes it means merely such
right of folding. The right of fording on another's
land, which is called "common foldage." Co.Litt.
6a, note 1.
FOLD-SOKE. A feudal service which consisted
in the obligation of the tenant not to have a fold
of his own but to have his sheep lie in the lord's
fold.
He was said to be consuetus ad foldam, tried to his lord's
fold. The basis of his service is thus expressed by a re-
cent writer : "It is manure that the lord wants; the de-
mand for manure has played a large part in the history of
the human race." Maitland, Domesday Book 76. In East
Anglia the peasants had sheep enough to make this an im-
portant social institution; id. 442.
FOLDAGE. A privilege possessed in some places
by the lord of a manor, which consists in the right
of having his tenant's sheep to feed on his fields,
so as to manure the land. The name of foldage is
also given in parts of Norfolk to the customary
fee paid to the lord for exemption at certain times
from this duty. Elton, Com. 45, 46.
FOLGARII. Menial servants; followers. Bract.
FOLGERE. In old English law, a freeman, who
has no house or dwelling of his own, but is the
follower or retainer of another, (heorthfcest,) for
whom he performs certain predial services.
FOLGERS. Menial servants or followers. Cow-
ell.
FOLGOTH. Official dignity.
FOLIE BRIGHTIQUE, See Insanity.
FOLIE CIRCULAERE, See Insanity.
FOLIO. A leaf. In the ancient lawbooks it was
the custom to number the leaves, instead of the
pages; hence a folio would include both sides of
the leaf, or two pages. The references to these
books are made by the number of the folio, the
letters "a" and "b" being added to show which of
the two pages is intended; thus "Bracton, fol.
100a."
A large size of book, the page being obtained
by folding the sheet of paper once only in the bind-
ing. Many of the ancient lawbooks are folios.
When used in connection with legal documents,
it means a certain number of words varying from
72 to 100, but generally in the United States con-
sisting of 100. Reed v. Sackett, 135 Okl. 69, 273
P. 1002, 1004.
In pleading denying allegations of a specified
folio, it refers to a division in a document for pur-
pose of measurement or reference. Mahin v. Ma-
hin, 131 Fla. 546, 179 So. 651.
FOLK-LAND; FOLK-MOTE. See Folc-Land;
Folc-Gemote.
FOLLOW. To conform to, comply with, or be
fixed or determined by; as in the expressions
"costs follow the event of the suit," "the situs of
personal property follows that of the owner," "the
offspring follows the mother," (partus sequitur
ventrem).
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To walk in, to attend upon closely, as a profes-
sion or calling. Spears v. Ford, 247 S.W. 713, 197
Ky. 575.
FOLLOWS THE PROPERTY. Synonymous with
"adheres to the property." Tonopah Mining Co.
of Nevada v. Commissioner of Internal Revenue,
C.C.A.3, 127 F.2d 239, 244.
FONDS ET BIENS. Fr. In French law, goods
and effects. Adams v. Akerlund, 168 Ill. 632, 48
N.E. 454.
Including realty. Erickson v. Carlson, 95 Neb.
182, 145 N.W. 352, approved and followed. Engen
v. Union State Bank of Harvard, 118 Neb. 105, 223
N.W. 664, 666.
FONDS PERDUS. In French law, a capital is
said to be invested a fonds perdus when it is stip-
ulated that in consideration of the payment of
an amount as interest, higher than the normal
rate, the lender shall be repaid his capital in
this manner. The borrower, after paying the in-
terest during the period determined, is free as re-
gards the capital itself. Arg.Fr.Merc.Law, 560.
FONSADERA. In Spanish law, any tribute or
loan granted to the king for the purpose of enabl-
ing him to defray the expenses of a war.
FONTANA. A fountain or spring. Bract. fol.
233.
FOOT. A measure of length containing twelve
inches or one-third of a yard. Spicer v. Hartford
Fire Ins. Co. of Hartford, Conn., 171 Va. 428, 199
S.E. 499, 501.
The base, bottom, or foundation of anything;
and, by metonomy, the end or termination; as
the foot of a fine.
The terminal part of the leg. Reno v. Holmes,
238 Mich. 572, 214 N.W. 174, 175. That part of
leg at or below ankle joint. Mills v. Mills & Con-
nelly, 214 Ky. 675, 283 S.W. 1010, 1011. Embraces
the arch. Trustees for Arch Preserver Shoe Pat-
ents v. James McCreery & Co., Cust. & Pat.App.,
49 F.2d 1068, 1071.
FOOT ACRE. One acre of coal one foot thick.
In re Hudson Coal Co., 327 Pa. 247, 193 A. 8, 10.
FOOT DROP. A loss of ability to turn the foot
inward, a loss of ability to extend the toes and
to raise them, and a loss of sensation in the low-
er frontal portions of the leg below the knee, and
the greater portion of the top of the foot. Engel-
king v. Carlson, Cal.App., 80 P.2d 96, 97.
FOOT-FRONTAGE RULE. Under rule, assess-
ment is confined to actual frontage on line of im-
provement, and depth of lot, number or character
of improvements, or value thereof, is immaterial.
Borough of Berwick v. Smethers, 105 Pa.Super.
40, 160 A. 148.
FOOTGELD. In the forest law, an amercement
for not cutting out the ball or cutting off the claws
of a dog's feet, (expeditating, him.) To be quit
of footgeld is to have the privilege of keeping
dogs in the forest unlawed without punishment
or control. Manwood.
FOOT OF THE FINE. The fifth part of the con-
clusion of a fine. It includes the whole matter,
reciting the names of the parties, day, year, and
place, and before whom it was acknowledged or
levied. 2 Bl.Comm. 351.
FOOT POUND. A unit of energy, or work, equal
to work done in raising one pound avoirdupois
against the force of gravity to the height of one
foot. Webster, Dict. Healey v. Moran Towing
& Transportation Co., C.C.A.N.Y., 253 F. 334, 337.
FOOTPRINTS. In the law of evidence, impres-
sions made upon earth, snow, or other surface by
the feet of persons, or by the shoes, boots, or other
covering of the feet. Burrill, Circ.Ev. 264.
FOR. Fr. In French law, a tribunal. Le for in-
terieur, the interior forum; the tribunal of con-
science. Poth.Obl. pt. 1, c. 1, § 1, art. 3, § 4.
FOR. In behalf of, in place of, in lieu of, instead
of, representing, as being which, or equivalent to
which, and sometimes imports agency. Medler
v. Henry, 44 N.M. 63, 97 P.2d 661, 662.
During; throughout; for the period of; as,
where a notice is required to be published "for"
a certain number of weeks or months. Wilson v.
Northwestern Mut. L. Ins. Co., C.C.A.Kan., 65 F.
39, 12 C.C.A. 505; Northrop v. Cooper, 23 Kan.
432; Burdine v. Sewell, 92 Fla. 375, 109 So. 648,
653. Duration, when put in connection with time.
Progressive Building & Loan Ass'n v. McIntyre,
169 Tenn. 491, 89 S.W.2d 336, 337.
In consideration for; as an equivalent for; in
exchange for; in place of; as where property is
agreed to be given "for" other property or "for"
services. Norton v. Woodruff, 2 N.Y. 153; Dun-
can v. Franklin Tp., 10 A. 546, 43 N.J.Eq. 143;
Mudge v. Black, Sheridan & Wilson, C.C.A.Mo.,
224 F. 919, 921.
Belonging to, exercising authority or functions
within; as, where one describes himself as "a
notary public in and for the said county."
By reason of; with respect to; for benefit of;
for use of; in consideration of. Basler v. Sacra-
mento Electric, Gas & Ry. Co., 166 Cal. 33, 134 P.
993, 994; Elmore-Schultz Grain Co. v. Stonebrak-
er, 202 Mo.App. 81, 214 S.W. 216, 221; Work v.
U. S., ex rel. Rives, 54 App.D.C. 84, 295 F. 225,
226. The cause, motive or occasion of an act,
state or condition. American Ins. Co. v. Naylor,
103 Colo. 461, 87 P.2d 260, 265. Used in sense of
"because of," "on account of," or "in consequence
of." Kelly v. State Personnel Board of Califor-
nia, 31 Ca1.App.2d 443, 88 P.2d 264, 266. By means
of, or growing out of. Cormier v. Hudson, 284
Mass. 231, 187 N.E. 625, 626.
It connotes the end with reference to which
anything is, acts, serves, or is done. Bates v.
Schillinger, 128 Me. 14, 145 A. 395, 399. In consid-
eration of which, in view of which, or with refer-
ence to which, anything is done or takes place.
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Fleming v. Atlantic Co., D.C.Ga., 40 F.Supp. 654,
660. In direction of; with view of reaching; with
reference to needs, purposes or uses of; appropri-
ate or adapted to; suitable to purpose, require-
ment, character or state of. Robert v. Clapp Co.
v. Fox, 124 Ohio St. 331, 178 N.E. 586, 588.
FOR ACCOUNT OF. Introduces name of person
entitled to receive proceeds of indorsed note or
draft. Freiberg v. Stoddard, 161 Pa. 259, 28 A.
1111; White v. Miners' Nat. Bank, 102 U.S. 658,
26 L.Ed. 250; Equitable Trust Co. of New York
v. Rochling, 275 U.S. 248, 48 S.Ct. 58, 59, 72 L.Ed.
264.
FOR AND DURING SUCH TIME, FOR SO LONG
AS. Temporarily. Burdine v. Sewell, 92 Fla. 375,
109 So. 648, 653.
FOR AT LEAST. As applied to a number of days
required for notice this phrase includes either the
first or last day, but not both. Stroud v. Water
Co., 56 N.J.L. 422, 28 A. 578.
FOR CAUSE. Means for reasons which law and
public policy recognize as sufficient warrant for
removal and such cause is "legal cause" and not
merely a cause which the appointing power in
the exercise of discretion may deem sufficient.
State ex rel. Nagle v. Sullivan, 98 Mont. 425, 40
P.2d 995, 998, 99 A.L.R. 321.
FOR COLLECTION. A form of indorsement on
a note or check where it is not intended to trans-
fer title to it or to give it credit or currency, but
merely to authorize the transferee to collect the
amount of it. Central R. Co. v. Bank, 73 Ga. 383;
Sweeny v. Easter, 1 Wall. 166, 17 L.Ed. 681. But
see In re Ziegenhein, Mo.App., 187 S.W. 893, 895.
FOR HIRE OR REWARD. To transport passen-
gers or property of other persons than owner or
operator of the vehicle for a reward or stipend,
to be paid by such passengers, or persons for
whom such property is transported, to owner or
operator. Michigan Consol. Gas Co. v. Sohio Pe-
troleum Co., 32 N.W.2d 353, 356, 321 Mich. 102.
FOR PURPOSE OF. With the intention of.
State v. Derrickson, 1 W.W.Harr., Del., 342, 114 A.
286, 288.
FOR THAT. In pleading, words used to intro-
duce the allegations of a declaration. "For that"
is a positive allegation; "For that whereas" is a
recital. Ham. N.P. 9.
FOR THAT WHEREAS. In pleading, formal
words introducing the statement of the plaintiff's
case, by way of recital, in his declaration, in all
actions except trespass. 1 Instr.Cler. 170; 1 Bur-
rill, Pr. 127. In trespass, where • there was no
recital, the expression used was, "For that." Id.;
1 Inst.Cler. 202.
FOR USE. (1) For the benefit or advantage of
another. Thus, where an assignee is obliged to
sue in the name of his assignor, the suit is enti-
tled "A. for use of B. v. C." (2) For enjoyment
or employment without destruction.
A loan "for use" is one in which the bailee has the right
to use and enjoy the article, but without consuming or
destroying it, in which respect it differs from a loan "for
consumption." In re Houk's Estate, 186 Cal. 643, 200 P.
417, 418.
FOR VALUE. See Holder.
FOR VALUE RECEIVED. See Value Received.
FOR WHOM IT MAY CONCERN. Phrase cre-
ates presumption of intention on part of named
insured to cover any persons who may have an
insurable interest in the property. Allemannia
Fire Ins. Co. v. Winding Gulf Collieries, D.C.W.
Va., 60 F.Supp. 65, 68.
FORAGE. Hay and straw for horses, particularly
in the army. Jacob.
FORAGIUM. Straw when the corn is threshed
out. Cowell.
FORAKER ACT. A name usually given to the
act of congress of April 12, 1900, 31 Stat.L. 77, c.
191 (48 U.S.C.A. § 731 et seq.), which provided
civil government for Porto Rico. See a synopsis
of it by Harlan, J., in Downes v. Bidwell, 182 U.S.
244, 390, 21 S.Ct. 770, 45 L.Ed. 1088.
FORANEUS. One from without; a foreigner;
a stranger. Calvin.
FORATHE. In forest law, one who could make
oath, i. e., bear witness for another. Cowell;
Spelman.
FORBALCA. In old records, a forebalk; a balk
(that is, an unplowed piece of land) lying forward
or next the highway. Cowell.
FORBANNITUS. A pirate; an outlaw; one ban-
ished.
FORBARRER. L.Fr. To bar out; to preclude;
hence, to estop.
FORBATUDUS. In old English law, the aggres-
sor slain in combat. Jacob.
FORBEARANCE. Act by which creditor waits
for payment of debt due him by debtor after it
becomes due. Upton v. Gould, 64 Cal.App.2d 814,
149 P.2d 731, 733. A delay in enforcing rights.
Shaw v. Philbrick, 129 Me. 259, 151 A. 423, 74 A.
L.R. 290. Indulgence granted to a debtor. Dry
Dock Bank v. American Life Ins., etc., Co., 3 N.
Y. 354.
Refraining from action. The term is used in
this sense in general jurisprudence, in contradis-
tinction to "act."
Within usury law, term signifies contractual obligation
of lender or creditor to refrain, during given period of
time, from requiring borrower or debtor to repay loan or
debt then due and payable. Hafer v. Spaeth, 22 Wash.2d
378, 156 P.2d 408, 411.
FORCE. Power dynamically considered, that is,
in motion or in action; constraining power, com-
pulsion; strength directed to an end. Usually the
word occurs in such connections as to show that
unlawful or wrongful action is meant. Watson v.
Railway Co., 7 Misc.Rep. 562, 28 N.Y.S. 84; Plank
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Road Co. v. Robbins, 22 Barb., N.Y., 667; Temple
Lumber Co. v. Living, Tex.Civ.App., 289 S.W. 746,
749; Hafner Mfg. Co. v. City of St. Louis, 262 Mo.
621, 172 S.W. 28, 34.
Unlawful violence. It is either simple, as enter-
ing upon another's possession, without doing any
other unlawful act; compound, when some other
violence is committed, which of itself alone is
criminal; or implied, as in every trespass, rescous,
or disseisin. Lambert v. Helena Adjustment Co.,
69 Mont. 510, 222 P. 1057, 1058.
It may mean either exact pressure times exact area
to which the pressure is applied, or it may mean simply
an operative physical power without taking account of the
exact quantity applied. Hydraulic Press Corporation v.
Coe, 77 U.S.App.D.C. 251, 134 F.2d 49, 56.
Such display of physical power as is reasonably calcu-
lated to inspire fear of physical harm to those opposing
possession of premises by trespasser. Smith .v. Sinclair
Refining Co., Tex.Civ.App., 77 S.W.2d 894, 895.
Terms "violence" and "force" are synonymous when used
in relation to assault. People v. James, 9 Cal.App.2d 162,
48 P.2d 1011, 1012.
Power statically considered; that is at rest, or
latent, but capable of being called into activity
upon occasion for its exercise. Efficacy; legal va-
lidity. This is the meaning when we say that a
statute or a contract is "in force."
As used in divorce statute, "force" or "coercion" are
synonymous. Santer v. Santer, 115 Pa. Super. 1, 174 A.
651, 652.
In old English law, a technical term applied to
a species of accessary before the fact.
In Scotch law, coercion; duress. Bell.
—Of force. See that title.
FORCE AND ARMS. A phrase used in declara-
tions of trespass and in indictments, but now un-
necessary in declarations, to denote that the act
complained of was done with violence. 2 Chit.P1.
846, 850.
FORCE AND FEAR, called also "vi metuque,"
means that any contract or act extorted under
the pressure of force (vis) or under the influence
of fear (metus) is voidable on that ground, pro-
vided, of course, that the force or the fear was
such as influenced the party. Brown.
FORCE MAJESTURE. Includes lightnings, earth-
quakes, storms, flood, sunstrokes, freezing, etc.,
wherein latter two can be considered hazards
in contemplation of employer within Compensa-
tion Act. Fogg v. Van Saun Coal Co., N.J.Dept.
Labor, 12 N.J.Misc. 680, 174 A. 419, 420.
FORCE MAJEURE. Fr. In the law of insur-
ance, superior or irresistible force. Emerig. Tr.
des Ass. c. 19
FORCED HEIRS. Those persons whom the tes-
tator or donor cannot deprive of the portion of
his estate reserved for them by law, except in
cases where he has a just cause to disinherit them.
Civil Code La. art. 1495. And see Crain v. Crain,
17 Tex. 90; Hagerty v. Hagerty, 12 Tex. 456; Mil-
ler v. Miller, 105 La. 257, 29 So. 802.
FORCED SALE. In practice, a sale made at the
time and in the manner prescribed by law, in
virtue of execution issued on a judgment already
rendered by a court of competent jurisdiction;
a sale made under the process of the court, and
in the mode prescribed by law. Sampson v. Wil-
liamson, 6 Tex. 110, 55 Am.Dec. 762.
A sale against the consent of the owner. The term
should not be deemed to embrace a sale under a power in
a mortgage. Patterson v. Taylor, 15 Fla. 336.
FORCES. The military and naval power of the
country.
FORCHEAPUM. Pre-emption; forestalling the
market. Jacob.
FORCIBLE DETAINER. Exists where one or-
iginally in rightful possession of realty refuses
to surrender it at termination of his possessory
right. Sayers & Muir Service Station v. Indian
Refining Co., 266 Ky. 779, 100 S.W.2d 687, 689.
The offense of violently keeping possession of lands and
tenements, with menaces, force, and arms, and without
the authority of law. 4 Bl.Comm. 148; 4 Steph.Comm.
280.
Forcible detainer may ensue upon a peaceable entry, as
well as upon a forcible entry; but it is most commonly
spoken of in the phrase "forcible entry and detainer."
FORCIBLE ENTRY. Violently taking possession
of lands and tenements with menaces, force, and
arms, against the will of those entitled to the
possession, and without the authority of law.
4 31. Comm. 148; 4 Steph. Comm. 280; Code Ga.
1882, § 4524 (Pen. Code, 1910, § 344). Accompan-
ied with circumstances tending to excite terror in
the occupant, and to prevent him from maintain-
ing his rights. Barbee v. Winnsboro Granite Cor-
poration, 190 S.C. 245, 2 S:E.2d 737, 739. Angry
words and threats of force may be sufficient. Cal-
idino Hotel Co. of San Bernardino v. Bank of
America Nat. Trust & Savings Ass'n, 31 Cal.App.
2d 295, 87 P.2d 923, 931.
Every person is guilty of forcible entry who either (1)
by breaking open doors, windows, or other parts of a
house, or by any kind of violence or circumstance of ter-
ror, enters upon or into any real property; or (2) who,
after entering peaceably upon real property, turns out
by force, threats, or menacing conduct the party in posses-
sion. Code Civil Proc.Cal. § 1159.
In many states, an entry effected without consent of
rightful owner, or against his remonstrance, or under cir-
cumstances which amount to no more than a mere tres-
pass, is now technically considered "forcible," while a
detainer of the property consisting merely in the refusal to
surrender possession after a lawful demand, is treated as a
"forcible" detainer, the "force" required at common law
being now supplied by a mere fiction. See Vernon's Tex.
Ann.Civ.St. art. 3975; Goldsberry v. Bishop, 2 Duv., Ky.,
144; Wells v. Darby, 13 Mont. 504, 34 P. 1092; Willard
v. Warren, 17 Wend., N.Y. 261; California Products v.
Mitchell, 52 Cal.App. 312, 198 P. 646.
FORCIBLE ENTRY AND DETAINER. A sum-
mary proceeding for restoring to possession of
land one who is wrongfully kept out or has been
wrongfully deprived of the possession. Wein v.
Albany Park Motor Sales Co., 312 Ill.App. 357,
38 N.E.2d 556, 559.
The title cannot be inquired into for any purpose. Davis
v. Robinson, 374 Ill. 553, 30 N.E.2d 52, 54. The inquiry is
confined to the actual and peaceable possession of the
plaintiff and the unlawful or forcible ouster or detention
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by defendant; the object of the law being to prevent the
disturbance of the public peace by the forcible assertion
of a private right. Gore v. Altice, 33 Wash. 335, 74 P. 556;
Eveleth v. Gill, 97 Me. 315, 54 A. 757; Harris v. Harris,
190 Ala. 619, 67 So. 465, 466; Long v. Bagwell, 38 Okl. 312,
133 P. 50, 51.
FORCIBLE TRESPASS. In North Carolina, this
is an invasion of the rights of another with re-
spect to his personal property, of the same char-
acter, or under the same circumstances, which
would constitute a "forcible entry and detainer"
of real property at common law. It consists in
taking or seizing the personal property of an-
other by force, violence, or intimidation or in
forcibly injuring it. State v. Lawson, 123 N.C.
740, 31 S.E. 667, 68 Am.St.Rep. 844; State v. Hold-
er, 188 N.C. 561, 125 S.E. 113, 114.
There must be actual violence used, or such demonstra-
tion of force as is calculated to intimidate or tend to a
breach of the peace. It is not necessary that the person be
actually put in fear. State v. Stinnett, 167 S.E. 63, 64, 203
N.C. 829.
FORDA. In old records, a ford or shallow, made
by damming or penning up the water. Cowell.
FORDAL. A butt or headland, jutting out upon
other land. Cowell.
FORDANNO. In old European law, he who first
assaulted another. Spelman.
FORDIKA. In old records, grass or herbage
growing on the edge or bank of dykes or ditches.
Cowell.
FORE. Sax. Before. Fr. Out. Kelham. git
FORE—MATRON. In a jury of women this word
corresponds to the foreman of a jury. She was
sworn in separately; 8 Carr. & P. 264.
FORE—OATH. Before the Norman Conquest, an
oath required of the complainant in the first in-
stance (in the absence of manifest facts) as a
security against frivolous suits. Pollock, 1 Sel.
Essays Anglo-Amer. Leg. Hist. 93.
FOREBALK. See Headland.
FORECLOSE. To shut out; to bar; to termi-
nate. State v. Darling, 39 S.D. 558, 165 N.W.
536, 537.
Method of terminating mortgagor's right of
redemption. Hibernia Savings & Loan Soc. v.
Lauffer, 41 Cal.App.2d 725, 107 P.2d 494, 497.
FORECLOSURE. To shut out, to bar, to destroy
an equity of redemption. Anderson v. Barr, 178
Okl. 508, 62 P.2d 1242, 1246. A termination of all
rights of the mortgagor or his grantee in the
property covered by the mortgage. Levin v. Cen-
tury Indemnity Co., 279 Mass. 256, 181 N.E. 223,
225.
A process in chancery by which all further right existing
in a mortgagor to redeem the estate is defeated and lost
to him, and the estate becomes the absolute property of
the mortgagee; being applicable when the mortgagor has
forfeited his estate by non-payment of the money due on
the mortgage at the time appointed, but still retains the
equity of redemption. 2 Washb. Real Prop. 237. Goodman
v. White, 26 Conn. 322; Trustees of Schools v. St. Paul
Fire & Marine Ins. Co., 296 Ill. 99, 129 N.E. 567, 568.
The term is also loosely applied to any of the various
methods, statutory or otherwise, known in different juris-
dictions, of enforcing payment of the debt secured by a
mortgage, by taking and selling the mortgaged estate.
Dikeman v. Jewel Gold Mining Co., C.C.A.Alaska, 13 F.2d
118; Realty Mortgage Co. v. Moore, 80 Fla. 2, 85 So. 155,
156.
Foreclosure is also applied to proceedings founded upon
some other liens; thus there are proceedings to foreclose a
mechanic's lien. Insurance Co. of North America v. Cheat-
hem, 221 Ky. 668, 299 S. W. 545, 547. It is a proceeding in
court or out of court, when provided for by a valid con-
tract, to subject property or part thereof covered by a lien
to payment of debt secured by the lien, and it has effect of
extinguishing all right, title, or interest, if any, of de-
fendants in the property. Southwestern Peanut Growers
Ass'n v. Womack, Tex.Civ.App., 179 S.W.2d 371, 373.
Statutory foreclosure. The term is sometimes applied
to foreclosure by execution of a power of sale contained
in the mortgage, without recourse to the courts, as it must
conform to the provisions of the statute regulating such
sales. See Mowry v. Sanborn, 11 Hun, N.Y., 548.
Strict foreclosure. A decree of strict foreclosure of a
mortgage finds the amount due under the mortgage, orders
its payment within a certain limited time, and provides
that, in default of such payment, the debtor's right and
equity of redemption shall be forever barred and fore-
closed  its effect is to vest the title of the property ab-
solutely in the mortgagee, on default in payment, without
any sale of the property. Champion v. Hinkle, 45 N.J.Eq.
162, 16 A. 701; Lightcap v. Bradley, 186 Ill. 510, 58 N.E.
221; Warner Bros. Co. v. Freud, 138 Cal. 651, 72 P. 345.
FORECLOSURE DECREE. Properly speaking,
a decree ordering the strict foreclosure of a mort-
gage; but the term is also loosely and conven-
tionally applied to a decree ordering the sale of
the mortgaged premises and the satisfaction of
the mortgage out of the proceeds. Hanover F.
Ins. Co. v. Brown, 77 Md. 64, 25 A. 989, 39 Am.St.
Rep. 386.
FORECLOSURE SALE. A sale of mortgaged
property to obtain satisfaction of the mortgage
out of the proceeds, whether authorized by a de-
cree of the court or by a power of sale contained
in the mortgage. Johnson v. Cook, 96 Mo.App.
442, 70 S.W. 526.
FORECLOSURE SUIT. A proceeding for legal
determination of existence of lien, ascertainment
of its extent, and subjection to sale of estate
pledged for its satisfaction, and to settle conflict-
ing claims by selling equity of redemption. Reich-
ert v. McCool, 92 Ind.App. 406, 169 N.E. 86, 88.
FOREFAULT. In Scotch law, to forfeit; to lose.
FOREGIFT. A premium for a lease.
FOREGOERS. Royal purveyors. 26 Edw. III. c.
5.
FOREHAND RENT. In English law, rent pay-
able in advance; or, more properly, a species of
premium or bonus paid by the tenant on the mak-
ing of the lease, and particularly on the renewal
of leases by ecclesiastical corporations.
FOREIGN. Belonging to another nation or coun7
try; belonging or attached to another jurisdic-
tion; made, done, or rendered in another state
or jurisdiction; subject to another jurisdiction;
operating or solvable in another territory; ex-
trinsic;  outside; extraordinary. Nonresident.
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FOREIGN
Blanchette v. New England Telephone & Telegraph
Co., 90 N.H. 207, 6 A.2d 161, 162.
As to foreign "Administrator," "Assignment,"
"Attachment," "Bill of Exchange," "Charity,"
"Commerce," "Corporation," "County," "Credi-
tor," "Divorce," "Document," "Domicile," "Fac-
tor," "Judgment," "Jury," "Minister," "Plea,"
"Port," "State," "Vessel," and "Voyage," see those
titles.
FOREIGN ANSWER. In old English practice,
an answer which was not triable in the county
where it was made. (St. 15 Hen. VI. c. 5.) Blount.
FOREIGN APPOSER. An officer in the excheq-
uer who examines the sheriff's estreats, compar-
ing them with the records, and apposeth (inter-
rogates) the sheriff what he says to each particu-
lar sum therein. 4 Inst. 107; Blount; Cowell.
FOREIGN BOUGHT AND SOLD. A custom in
London which, being found prejudicial to sellers
of cattle in Smithfield, was abolished. Wharton.
FOREIGN COINS. Coins issued as money under
the authority of a foreign government. As to
their valuation in the United States, see 46 Stat.
739, 31 U.S.C.A. § 372.
FOREIGN COURTS. The courts of a foreign
state or nation. In the United States, this term
is frequently applied to the courts of one of the
states when their judgments or records are intro-
duced in the courts of another.
FOREIGN DOMINION. In English law this
means a country which at one time formed part
of the dominions of a foreign state or potentate,
but which by conquest or cession has become a
part of the dominions of the British crown. 5
Best & S. 290.
FOREIGN ENLISTMENT ACT. The statute 59
Geo. III. c. 69, prohibiting the enlistment, as a
soldier or sailor, in any foreign service. 4 Steph.
Comm. 226. A later and more stringent act is
that of 33 & 34 Vict. c. 90.
FOREIGN EXCHANGE. Drafts drawn on a for-
eign state or country.
FOREIGN—GOING SHIP. By the English mer-
chant shipping act, 1854, (17 & 18 Vict. c. 104,) § 2,
any ship employed in trading, going between some
place or places in the United Kingdom and some
place or places situate beyond the following lim-
its, that is to say: The coasts of the United King-
dom, the islands of Guernsey, Jersey, Sark, Alder-
ney, and Man, and the continent of Europe, be-
tween the river Elbe and Brest, inclusive. Home-
trade ship includes every ship employed in trading
and going between places within the last-men-
tioned limits.
FOREIGN JUDGMENT. See Judgment.
FOREIGN JURISDICTION. Any jurisdiction for-
eign to that of the forum. Also the exercise by
a state or nation of jurisdiction beyond its own
territory, the right being acquired by treaty or
otherwise.
FOREIGN LAWS. The laws of a foreign country,
or of a sister state. People v. Martin, 38 Misc.
Rep. 67, 76 N.Y.S. 953; Bank of Chillicothe v.
Dodge, 8 Barb., N.Y., 233. Foreign laws are
often the suggesting occasions of changes in, or
additions to, our own laws, and in that respect are
called "jus receptum." Brown.
FOREIGN MATTER. In old practice, matter
triable or done in another county. Cowell.
FOREIGN OFFICE. The department of state
through which the English sovereign communi-
cates with foreign powers. A secretary of state
is at its head. Till the middle of the last century,
the functions of a secretary of state as to foreign
and home questions were not disunited.
FOREIGN SERVICE, in feudal law, was that
whereby a mesne lord held of another, without
the compass of his own fee, or that which the
tenant performed either to his own lord or to the
lord paramount out of the fee. (Kitch. 299.)
Foreign service seems also to be used for knight's
service, or escuage uncertain. (Perk. 650.) Ja-
cob.
FOREIGN TRADE. Commercial interchange of
commodities from different countries; export and
import trade. Standard Oil Co. of New Jersey v.
United States, 29 Cust. & Pat.App. 82, 120 F.2d
340, 342.
FOREIGN WILL. Will of person not domiciled
within state at time of death. De Tray v. Hard-
grove, Tex.Com.App., 52 S.W.2d 239, 240. •
FOREIGNER. In old English law, this term,
when used with reference to a particular city,
designated any person who was not an inhabitant
of that city. According to later usage, it denotes
a person who is not a citizen or subject of the
state or country of which mention is made, or
any one owing allegience to a foreign state or
sovereign.
For the distinctions, in Spanish law, between
"domiciliated" and "transient" foreigners, see
Yates v. lams, 10 Tex. 168.
FOREIN. An old form of foreign (q. v.). Blount.
FOREJUDGE. In old English law and practice,
to expel from court for some offense or miscon-
duct. When an officer or attorney of a court
was expelled for any offense, or for not appear-
ing to an action by bill filed against him, he was
said to be forejudged the court. Cowell.
To deprive or put out of a thing by the judg-
ment of a court. To condemn to lose a thing.
To expel or banish.
FOREJUDGER. In English practice, a judgment
by which a man is deprived or put out of a thing;
a judgment of expulsion or banishment.
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FORESTARIUS
FOREMAN. The presiding member of a grand
or petit jury, who speaks or answers for the jury.
Person designated by master to direct work of
employees; superintendent, overseer. White v.
Kansas City Stockyards Co., 104 Kan. 90, 177 P.
522; Browning v. Smiley-Lampert Lumber Co.,
68 Or. 502, 137 P. 777, 780; Brokaw v. Cottrell,
114 Neb. 858, 211 N.W. 184, 187.
FORENSIC. Belonging to courts of justice.
FORENSIC MEDICINE, or medical jurispru-
dence, as it is also called, is "that science which
teaches the application of every branch of medi-
cal knowledge to the purposes of the law; hence
its limits are, on the one hand, the requirements
of the law, and, on the other, the whole range of
medicine. Anatomy, physiology, medicine, sur-
gery, chemistry, physics, and botany lend their
aid as necessity arises; and in some cases all
these branches of science are required to enable
a court of law to arrive at a proper conclusion
on a contested question affecting life or property."
Tayl. Med. Jur. 1.
FORENSIS.
In Civil law, belonging to or connected with a
court; forensic. Forensis homo, an advocate;
a pleader of causes; one who practices in court.
Calvin.
In old Scotch law, a strange man or stranger;
an out-dwelling man; an "unfreeman," who dwells
not within burgh.
FORESAID. Used in Scotch law as aforesaid
is in English, and sometimes, in a plural form,
foresaids. 2 How. State Tr. 715. Forsaidis oc-
curs in old Scotch records. "The Loirdis asses-
ouris forsaidis." 1 Pitc. Crim, Tr. pt. 1, p. 107.
FORESCHOKE. Foresaken; disavowed. 10
Edw. II. c. 1.
FORESEEABILITY. The ability to see or know
in advance, hence, the reasonable anticipation
that harm or injury is a likely result of acts or
omissions. Emery v. Thompson, 347 Mo. 494, 148
S.W.2d 479, 480.
FORESHORE. The strip of land that lies be-
tween the high and low water marks and that is
alternately wet and dry according to the flow of
the tide. Tenenbaum v. Sea Gate Ass'n, 253 App.
Div. 166, 1 N.Y.S.2d 224, 227. According to the
medium line between the greatest and least range
of tide (spring tides and neap tides). Sweet.
See, also, Shore.
FORESIGHT. Heedful thought for the future;
reasonable anticipation of result of certain acts or
omissions. Emery v. Thompson, 347 Mo. 494, 148
S.W.2d 479.
FOREST. A tract of land covered with trees
and one usually of considerable extent. Forest
Preserve Dist. of Cook County v. Jirsa, 336 Ill.
624, 168 N.E. 690, 691.
In old English law, a certain territory of wooded ground
and fruitful pastures, privileged for wild beasts and fowls
of forest, chase, and warren, to rest and abide in the safe
protection of the prince for his princely delight and pleas-
ure, having a peculiar court and officers. Manw. For.
Laws, c. 1, no. 1; Termes de la Ley; 1 Bl.Comm. 289.
A royal hunting-ground which lost its peculiar character
with the extinction of its courts, or when the franchise
passed into the hands of a subject. Spelman; Cowell.
The word is also used to signify a franchise or right,
being the right of keeping, for the purpose of hunting, the
wild beasts and fowls of forest, chase, park, and warren,
in a territory or precinct of woody ground or pasture set
apart for the purpose. 1 Steph.Comm. 665.
FOREST COURTS. In English law. Courts in-
stituted for the government of the king's forest
in different parts of the kingdom and for the
punishment of all injuries done to the king's deer
or venison, to the vert or greensward, and to
the covert in which such deer were lodged. They
consisted of the courts of attachments, of regard,
of sweinmote, and of justice-seat; but in later
times these courts are no longer held. 3 Bl.
Comm. 71.
FOREST LAW. The system or body of old law
relating to the royal forests.
FORESTAGE. A duty or tribute payable to the
king's foresters. Cowell.
FORESTAGIUM. A duty or tribute payable to
the king's foresters. Cowell.
FORESTALL. To intercept or obstruct a passen-
ger on the king's highway. Cowell. To beset
the way of a tenant so as to prevent his coming
on the premises. 3 Bl. Comm. 170. To intercept
a deer on his way to the forest before he can
regain it. Cowell.
FORESTALLER. In old English law, obstruc-
tion; hindrance; the offense of stopping the
highway; the hindering a tenant from coming to
his land; intercepting a deer before it can regain
the forest. Also one who forestalls; one who
commits the offense of forestalling. 3 Bl. Comm.
170; Cowell.
FORESTALLING. Obstructing the highway. In-
tercepting a person on the highway.
FORESTALLING THE MARKET. Securing con-
trol of commodities on way to market. Raney v.
Montgomery County Com'rs, 170 Md. 183, 183 A.
548, 551.
The act of the buying or contracting for any merchandise
or provision on its way to the market, with the intention
of selling it again at a higher price; or the dissuading
persons from bringing their goods or provisions there; or
persuading them to enhance the price when there. 4 Bl.
Comm. 158. Barton v. Morris, 10 Phila., Pa., 361. This
was formerly an indictable offense in England, but is now
abolished by St. 7 & 8 Vict. c. 24. 4 Steph.Comm. 291, note.
FORESTARIUS.
In English law, a forester. An officer who takes
care of the woods and forests. De forestario ap-
ponendo, a writ which lay to appoint a forester
to prevent further commission of waste when a
tenant in dower had committed waste. Bract.
316; Du Cange.
In Scotch law, a forester or keeper of woods, to
whom, by reason of his office, pertains the bark
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FORESTER
and the hewn branches. And, when he rides
through the forest, he may take a tree as high as
his own head. Skene de Verb. Sign.
FORESTER. A sworn officer of the forest, ap-
pointed by the king's letters patent to walk the
forest, watching both the vert and the venison,
attaching and presenting all trespassers against
them within their own bailiwick or walk. These
letters patent were generally granted during good
behavior; but sometimes they held the office in
fee. Blount.
FORETHOUGHT FELONY. In Scotch law, mur-
der committed in consequence of a previous de-
sign. Ersk. Inst. 4, 4, 50; Bell.
FORFANG. In old English law, the taking of
provisions from any person In fairs or markets
before the royal purveyors were served with nec-
essaries for the sovereign. Cowell. Also the
seizing and rescuing of stolen or strayed cattle
from the hands of a thief, or of those having il-
legal possession of them; also the reward fixed
for such rescue.
FORFEIT. To lose, or lose the right to, by some
error, fault, offense, or crime, or to subject, as
property, to forfeiture or confiscation. State v.
Cowen, 231 Iowa 1117, 3 N.W.2d 176, 180. To lose,
in consequence of breach of contract, neglect of
duty, or offense, some right, privilege, or property
to another or to the State. United States v. Chav-
ez, C.C.A.N.M., 87 F.2d 16, 19.
To incur a penalty; to become liable to the
payment of a sum of money, as the consequence
of a certain act. Sands v. Holbert, 93 W.Va. 574,
117 S.E. 896, 899; Ford v. Ellison, 287 Mo. 683, 230
S.W. 637, 640.
To lose an estate, a franchise, or other property belong-
ing to one, by the act of the law, and as a consequence of
some misfeasance, negligence, or omission. Cassell v.
Crothers, 193 Pa. 359, 44 A. 446; State v. De Gress, 72 Tex.
242, 11 S.W. 1029; State v. Baltimore & 0. R. Co., 12 Gill
& J., Md., 432, 38 Am.Dec. 319. The further ideas connoted
by this term are that it is a deprivation, (that is, against
the will of the losing party,) and that the property is eith-
er transferred to another or resumed by the original gran-
tor.
FORFEITABLE. Liable to be forfeited; subject
to forfeiture for non-user, neglect, crime, etc.
FORFEITURE. Something to which the right is
lost by the commission of a crime or fault or the
losing of something by way of penalty. Ridge-
way v. City of Akron, Ohio App., 42 N.E.2d 724,
726. A deprivation or destruction of a right in
consequence of the nonperformance of some obli-
gation or condition. Connellan v. Federal Life
& Casualty Co., 134 Me. 104, 182 A. 13, 14.
1. A punishment annexed by law to some illegal act or
negligence in the owner of land, tenements, or heredita-
ments whereby he loses all interest therein. Hammond v.
Johnson, 94 Utah 20, 66 P.2d 894, 900. And which go to the
party injured as a recompense for the wrong which he
alone, or the public together with himself, hath sustained.
2 Bl.Comm. 267. Wiseman v. McNulty, 25 Cal. 237; Steph-
enson v. Calliham, Tex.Civ.App., 289 S.W. 158, 159; Fratt
v. Daniels-Jones Co., 47 Mont. 487, 133 P. 700, 701.
2. The loss of land by a tenant to his lord, as the con-
sequence of some breach of fidelity. 1 Steph.Cornm. 166.
3. The loss of lands and goods to the state, as the con-
sequence of crime. 4 Bl.Comm. 381, 387; 4 Steph.Comm.
447, 452; 2 Kent, Comm. 385; 4 Kent, Comm. 426; Avery
v. Everett, 110 N.Y. 317, 18 N.E. 148, 1 L.R.A. 264, 6 Am.
St.Rep. 368.
4. The loss of goods or chattels, as a punishment for
some crime or misdemeanor in the party forfeiting, and as
a compensation for the offense and injury committed
against him to whom they are forfeited. 2 Bl.Comm. 420.
5. The loss of office by abuser, non-user, or refusal to
exercise it.  City of Williamsburg v. Weesner, 164 Ky.
769, 176 S.W. 224, 225.
6. The loss of a corporate franchise or charter in con-
sequence of some illegal act, or of malfeasance or non-
feasance. Murphy v. Missouri & Kansas Land & Loan Co.,
28 N.D. 519, 149 N.W. 957, 959; Village of Fredonia v.
Fredonia Natural Gas Light Co., 87 Misc. 592, 149 N.Y.S.
964, 965.
7. The loss of the right to life, as the consequence of
the commission of some crime to which the law has affixed
a capital penalty. In re New Jersey Court of Pardons, 97
N.J.Eq. 555, 129 A. 624, 630.
8. The incurring a liability to pay a definite sum of
money as the consequence of violating the provisions of
some statute, or refusal to comply with some requirement
of law. State v. Marion County Com'rs, 85 Ind. 493.
9. A thing or sum of money forfeited. Something im-
posed as a punishment for an offense or delinquency. The
word in this sense is frequently associated with the word
"penalty." Van Buren v. Digges, 11 How. 477, 13 L.Ed.
771; Bryant v. Rich's Grill, 216 Mass. 344, 103 N.E. 925,
927, Ann.Cas.1915B, 869; Miller v. Bopp, 136 La. 788, 67 So.
831; Missouri, K & T. Ry. Co. v. Dewey Portland Cement
Co., 113 Okl. 142, 242 P. 257, 259.
10. In mining law, the loss of a mining claim held by
location on the public domain (unpatented) in consequence
of the failure of the holder to make the required annual
expenditure upon it within the time allowed. McKay v.
McDougall, 25 Mont. 258, 64 P. 669, 87 Am.St.Rep. 395; St.
John v. Kidd, 26 Cal. 271.
FORFEITURE OF BOND. A failure to perform
the condition upon which obligor was to be ex-
cused from the penalty in the bond. Hall v.
Browning, 71 Ga.App. 835, 32 S.E.2d 424, 427.
FORFEITURE OF MARRIAGE. A penalty in-
curred by a ward in chivalry who married with-
out the consent or against the will of the guard-
ian. See Duplex Valor Maritagii.
FORFEITURE OF SILK, supposed to lie in the
docks, used, in times when its importation was
prohibited, to be proclaimed each term in the ex-
chequer.
FORFEITURES ABOLITION ACT. Another
name for the felony act of 1870, abolishing for-
feitures for felony in England.
FORGABULUM, or FORGAVEL. A quit-rent; a
small reserved rent in money. Jacob.
FORGE. To fabricate by false imitation. Carter
v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371, 377.
To fabricate, construct, or prepare one thing in
imitation of another thing, with the intention of
substituting the false for the genuine, or other-
wise deceiving and defrauding by the use of the
spurious article. To counterfeit or make falsely.
Especially, to make a spurious written instru-
ment with the intention of fraudulently substitut-
ing it for another, or of passing it off as genuine;
or to fraudulently alter a genuine instrument to
another's prejudice; or to sign another person's
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FORISJUDICATIO
name to a document, with a deceitful and fraud-
ulent intent. In re Cross, D.C.N.C., 43 F. 520;
U. S. v. Watkins, 28 Fed.Cas. 445; Johnson v.
State, 9 Tex.App. 251; Longwell v. Day, 1 Mich.
N.P. 290.
To forge (a metaphorical expression, borrowed from the
occupation of the smith) means, properly speaking, no
more than to make or form, but in our law it is always
taken in an evil sense. 2 East, P. C. p. 852, c. 19, § 1.
To forge is to make in the likeness of something else;
to counterfeit is to make in imitation of something else,
with a view to defraud by passing the false copy for gen-
uine or original. Both words, "forged" and "counterfeit-
ed," convey the idea of similitude. State v. McKenzie, 42
Me. 392.
In common usage, however, forgery is almost always
predicated of some private instrument or writing, as a
deed, note, will, or a signature; and counterfeiting denotes
the fraudulent imitation of coined or paper money or some
substitute therefor.
FORGERY.
Criminal Law
The false making or material altering, with
intent to defraud, of any writing which, if gen-
uine, might apparently be of legal efficacy or
the foundation of a legal liability. People v.
Routson, 354 Ill. 573, 188 N.E. 883, 885; 2 Bish.
Crim. Law, § 523; McCornack v. Central State
Bank, 203 Iowa 833, 211 N.W. 542, 545, 52 A.L.R.
1297. A fraudulent making and alteration of
writing to prejudice of another man's right, or a
false making, a making malo animo of any in-
strument, for the purpose of fraud or deceit. Iber-
ville Trust & Saving Bank v. City Café, La.App.,
143 So. 73. See Forge.
The thing itself, so falsely made, imitated or
forged; especially a forged writing. A forged
signature is frequently said to be "a forgery."
Evidence
The fabrication or counterfeiting of evidence.
The artful and fraudulent manipulation of physi-
cal objects, or the deceitful arrangement of
genuine facts or things, in such a manner as to
create an erroneous impression or a false infer-
ence in the minds of those who may observe them.
See Burrill, Circ. Ev. 131, 420.
FORGERY ACT, 1870. The statute 33 & 34 Vict.
c. 58, was passed for the punishment of forgers
of stock certificates, and for extending to Scot-
land certain provisions of the forgery act of
1861. Mozley & Whitley.
FORHERDA. In old records, a herdland, head-
land, or foreland. Cowell.
FORT DISPUTATIONES. In the civil law, dis-
cussions or arguments before a court. 1 Kent,
Comm. 530.
FORINSECUS. Lat. Foreign; exterior; out-
side; extraordinary.
Servitium forinsecum, the payment of aid, scutage, and
other extraordinary military services. Forinsecum maner-
ium, the manor, or that part of it which lies outside the
bars or town, and is not included within the liberties of it.
Cowell; Blount; Jacob; 1 Reeve, Eng.Law, 273.
FORINSIC. In old English law, exterior; for-
eign; extraordinary.
In feudal law, the term "forinsic services" comprehended
the payment of extraordinary aids or the rendition of
extraordinary military services, and in this sense was op-
posed to "intrinsic services." 1 Reeve, Eng. Law, 273.
FORIS. Lat. Abroad; out of doors; on the out-
side of a place; without; extrinsic.
FORISBANITUS. In old English law, banished.
FORISFACERE. Lat. To forfeit; to lose an es-
tate or other property on account of some crim-
inal or illegal act. To confiscate.
To act beyond the law, i. e., to transgress or in-
fringe the law; to commit an offense or wrong;
to do any act against or beyond the law. See Co.
Litt. 59a; Du Cange; Spelman.
FORISFACERE, e., EXTRA LEGEM SEU CON-
SUETUDINEM FACERE. Co. Litt. 59. Foris-
facere,  e., to do something beyond law or cus-
tom.
FORISFACTUM. Forfeited. Bona forisfacta,
forfeited goods. 1 Bl. Comm. 299. A crime. Du
Cange; Spelman.
FORISFACTURA. A crime or offense through
which property is forfeited.
A fine or punishment in money.
Forfeiture. The loss of property or life in
consequence of crime.
FORISFACTURA PLENA. A forfeiture of all
a man's property. Things which were forfeited.
Du Cange. Spelman.
FORISFACTUS. A criminal. One who has for-
feited his life by commission of a capital offense.
Spelman.
FORISFACTUS SERVUS. A slave who has been
a free man, but has forfeited his freedom by
crime. Du Cange.
FORISFAMILIARE. In old English and Scotch
law, literally, to put out of a family (fortis famil-
iam ponere). To portion off a son, so that he
could have no further claim upon his father.
Glanv. lib. 7, c. 3.
To emancipate, or free from paternal authority.
FORISFAMILIATED. In old English law, por-
tioned off.
A son was said to be forisfamiliated (forisfamiliari) if his
father assigned him part of his land, and gave him seisin
thereof, and did this at the request or with the free con-
sent of the son himself, who expressed himself satisfied
with such portion. 1 Reeve, Eng. Law, 42, 110.
FORISFAMILIATUS. In old English law, put
out of a family; portioned off; emancipated;
forisfamiliated. Bract. fol. 64.
FORISJUDICATIO. In old English law, fore-
judger. A forejudgment. A judgment of court
whereby a man is put out of possession of a
thing. Co. Litt. 100b.
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FORISJUDICATUS
FORISJUDICATUS. Forejudged; sent from
court; banished. Deprived of a thing by judg-
ment of court. Bract. fol. 250b; Co. Litt. 100b;
Du Cange.
FORISJURARE. To forswear; to abjure; to
abandon.
Provinciam forisjurare. To forswear the country.
Spelman.
FORISJURARE PARENTILAM. To remove one-
self from parental authority. The person who
did this lost his rights as heir. Du Cange.
FORJUDGE. See Forejudge.
FORJURER. L. Fr. In old English law, to for-
swear; to abjure.
FORJURER ROYALME. To abjure the realm.
Britt. cc. 1, 16.
FORLER-LAND. Land in the diocese of Here-
ford, which had a peculiar custom attached to it,
but which has been long since disused, although
the name is retained. But. Surv. 56.
FORM. A model or skeleton of an instrument
to be used in a judicial proceeding, containing the
principal necessary matters, the proper technical
terms or phrases, and whatever else is necessary
to make it formally correct, arranged in proper
and methodical order, and capable of being adapt-
ed to the circumstances of the specific case.
In contradistinction to "substance," "form"
means the legal or technical manner or order to
be observed in legal instruments or juridical pro-
ceedings, or in the construction of legal docu-
ments or processes.
Antithesis of "substance." Phoenix Building &
Homestead Ass'n v. Meraux, 189 La. 819, 180 So.
648, 649.
Common Form, Solemn Form. See Probate.
Forms of Action. This term is the general des-
ignation of the various species or kinds of per-
sonal actions known to the common law, such as
trover, trespass, debt, assumpsit, etc. These dif-
fer in their pleadings and evidence, as well as in
the circumstances to which they are respectively
applicable. Truax v. Parvis, 7 Houst. (Del.) 330,
32 A. 227.
Matter of Form. In pleadings, in indictments,
in affidavits, conveyances, etc., matter of form
(as .distinguished from matter of substance) is
all that relates to the mode, form, or style of
expressing the facts involved, the choice or ar-
rangement of words, and other such particulars,
without affecting the substantial validity or suf-
ficiency of the instrument, or without going to
the merits. Railway Co. v. Kurtz, 10 Ind.App.
60, 37 N.E. 303; Meath v. Mississippi Levee
Com'rs, 109 U.S. 268, 3 S.Ct. 284, 27 L.Ed. 930;
State v. Amidon, 58 Vt. 524, 2 A. 154.
Form of the Statute. This expression means
the words, language, or frame of a statute, and
hence the inhibition or command which it may
contain; used in the phrase (in criminal plead-
ing) "against the form of the statute in that case
made and provided."
FORMA. Lat. Form; the prescribed form of
judicial proceedings.
FORMA DAT ESSE. Form gives being. Called
"the old physical maxim." Lord Henley, Ch., 2
Eden, 99.
FORMA ET FIGURA JUDICH. The form and
shape of judgment or judicial action. 3 Bl. Comm.
271.
FORMA LEGALIS FORMA ESSENTIALIS. Le-
gal form is essential form. 10 Coke, 100.
FORMA NON OBSERVATA, INFERTUR AD-.
NULLATIO ACTUS. Where form is not ob-
served, a nullity of the act is inferred. 12 Coke,
7. Where the law prescribes a form, the non-
observance of it is fatal to the proceeding, and
the whole becomes a nullity. Best, Ev. Introd. §
59.
FORMA PAUPERIS. See In Forma Pauperis.
FORMAL. Relating to matters of form; as,
"formal defects"; inserted, added, or joined pro
forma. See Parties.
FORMALITIES. In England, robes worn by the
magistrates of a city or corporation, etc., on sol-
emn occasions. Enc. Lond.
FORMALITY. The conditions, in regard to meth-
od, order, arrangement, use of technical expres-
sions, performance of specific acts, etc., which
are required by the law in the making of con-
tracts or conveyances, or in the taking of legal
proceedings, to insure their validity and regular-
ity. Succession of Seymour, 48 La.Ann. 993, 20
So. 217.
FORMATA. In canon law, canonical letters.
Spelman.
FORMATA BREVIA. Formed writs; writs of
form. See Brevia Formata.
FORMED ACTION. An action for which a set
form of words is prescribed, which must be strict-
ly adhered to. 10 Mod. 140, 141.
FORMED DESIGN. In criminal law, and par-
ticularly with reference to homicide, this term
means a deliberate and fixed intention to kill,
whether directed against a particular person or
not. Mitchell v. State, 60 Ala. 33; Wilson v.
State, 128 Ala. 17, 29 So. 569; Ake v. State, 30 Tex.
473.
FORMEDON. An ancient writ in English law
which was available for one who had a right to
lands or tenements by virtue of a gift in tail.
It was in the nature of a writ of right, and was the
highest action that a tenant in tail could have; for he
could not have an absolute writ of right, that being con-
fined to such as claimed in fee-simple, and for that reason
this writ of formedon was granted to him by the statute
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de donis, (Westm. 2, 13 Edw. I. c. 1,) and was emphatical-
ly called "his" writ of right. The writ was distinguished
into three species, viz. : Formedon in the descender, in the
remainder, and in the reverter. It was abolished in Eng-
land by St. 3 & 4 Wm. IV. c. 27. See 3 B1.Comm. 191; Co.
Litt. 316; Fitzh.Nat.Brev. 255.
FORMEDON IN THE DESCENDER. A writ of
formedon which lay where a gift was made in
tail, and the tenant in tail aliened the lands or
was disseised of them and died, for the heir in
tail to recover them, against the actual tenant
of the freehold. 3 Bl. Comm. 192.
FORMEDON IN THE REMAINDER. A writ of
formedon which lay where a man gave lands to
another for life or in tail, with remainder to a
third person in tail or in fee, and he who had the
particular estate died without issue inheritable,
and a stranger intruded upon him in remainder,
and kept him out of possession. In this case he
in remainder, or his heir, was entitled to this
writ. 3 Bl. Comm. 192.
FORMEDON IN THE REVERTER. A writ of
formedon which lay where there was a gift in
tail, and afterwards, by the death of the donee
or his heirs without issue of his body, the re-
version fell in upon the donor, his heirs or as-
signs. In such case, the reversioner had this
writ to recover the lands. 3 Bl. Comm. 192.
FORMELLA. A certain weight of above 70 lbs.,
mentioned in 51 Hen. III. Cowell.
FORMER ACQUITTAL. See Autrefois.
FORMER ADJUDICATION. An adjudication in
a former action. See Res Judicata.
Either a final determination of the rights of
the parties or an adjudication of certain ques-
tions of fact. Johnson v. Fontana County Fire
Protection Dist., 101 P.2d 1092, 1097, 15 Cal.2d
380; Johnson v. Fontana County Fire Protection
Dist., Cal.App., 87 P.2d 426, 430.
FORMER JEOPARDY. Plea of "former jeop-
ardy," that a man cannot be brought into danger
of his life or limb for the same offense more than
once, is fundamental common law and constitu-
tional right of defendant, affording protection
against his being again tried for the same of-
fense, and not against the peril of second punish-
ment. State v. Fredlund, 200 Minn. 44, 273 N.W.
353, 355, 113 A.L.R. 215.
FORMER RECOVERY. Recovery in a former
action. See Res Judicata.
FORMIDO PERICULI, Lat. Fear of danger. 1
Kent, Comm. 23.
FORMS OF ACTION. This term comprehends
the various classes of personal action at common
law, viz.: trespass, case, trover, detinue, replevin,
covenant, debt, assumpsit, scire facias, and re-
vivor, as well as the nearly obsolete actions of
account and annuity, and the modern action of
mandamus.
They are now abolished in England by the Judicature
Acts of 1873 and 1875, and in many of the states of the
United States, where a uniform course of proceeding under
codes of procedure has taken their place. But the prin-
ciples regulating the distinctions between the common-law
actions are still found applicable even where the technical
forms are abolished.
FORMULA. In common-law practice, a set form
of words used in judicial proceedings.
In the civil law, an action. Calvin.
FORMULA DEAL. An agreement between mo-
tion picture distributors and independent or affil-
iated circuits to exhibit a feature in all theatres at
specified percentage of national gross receipts
realized from such feature by all theatres in the
United States. U. S. v. Paramount Pictures, D.C.
N.Y., 66 F.Supp. 323, 333, 347.
FORMULA INSTRUCTION. An instruction in-
tended to be complete statement of law upon
which jury may base verdict. Harvey v. Aceves,
115 Cal.App. 333, 1 P.2d 1043, 1045.
FORMULIE. In Roman law, when the legis ac-
tiones were proved to be inconvenient, a mode of
procedure called "per formulas," (i. e., by means
of formulce,) was gradually introduced, and even-
tually the legis actiones were abolished by the
Lex .Xbutia, B. C. 164, excepting in a very few
exceptional matters.
The formulce were four in number, namely : (1) The
Demonstratio, wherein the plaintiff stated, i. e., showed,
the facts out of which his claim arose; (2) the Intentio,
where he made his claim against the defendant; (3) the
Adjudicatio, wherein the judex was directed to assign or
adjudicate the property or any portion or portions thereof
according to the rights of the parties; and (4) the Condem-
natio, in which the judex was authorized and directed to
condemn or to acquit according as the facts were or were
not proved. These formulae were obtained from the
magistrate, (in jure,) and were thereafter proceeded with
before the judex, (in judicio). Brown. See Mackeld.Rom.
Law, § 204.
FORMULARIES. Collections of formulce, ,Jr
forms of forensic proceedings and instruments
used among the Franks, and other early contin-
ental nations of Europe. Among these the formu-
lary of Marculphus may be mentioned as of con-
siderable interest. Butl. Co. Litt. note .77, lib. 3.
FORNAGIUM. The fee taken by a lord of his
tenant, who was bound to bake in the lord's com-
mon oven (in furno domini), or for a commission
to use his own.
FORNICATION. Unlawful sexual intercourse be-
tween two unmarried persons. Further, if one of
the persons be married and the other not, it is
fornication on the part of the latter, though adult-
ery for the former. In some jurisdictions, how-
ever, by statute, it is adultery on the part of both
persons if the woman is married, whether the
man is married or not. Banks v. State, 96 Ala.
78, 11 So. 404; Hood v. State, 56 Ind. 263, 26 Am,
Rep. 21; State v. Phillips, 26 N.D. 206, 144 N.W.
94, 95, 49 L.R.A.,N.S., 470, Ann.Cas.1916A, 320;
State v. Ling, 91 Kan. 647, 138 P. 582, Ann.Cas.
1915D, 374.
FORNIX, Lat. A brothel; fornication.
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FORNO. In Spanish law, an oven. Las Partidas,
pt. 3, tit. 32, 1. 18.
FORO. In Spanish law, the place where tribunals
hear and determine causes,—exercendarum litium
locus.
FOROS. In Spanish law, emphyteutic rents.
Schm. Civil Law, 309.
FORPRISE. An exception; reservation; except-
ed; reserved. Anciently, a term of frequent use
in leases and conveyances. Cowell; Blount.
In another sense, the word is taken for any
exaction.
FORSCHEL. A strip of land lying next to the
highway.
FORSES. Waterfalls. Camden, Brit.
FORSPEAKER. An attorney or advocate in a
cause. Blount; Whishaw.
FORSPECA. In old English law, prolocutor;
paranymphus.
FORSTAL. See Forestall.
FORSTELLARIUS EST PAUPERUM DEPRES-
SOR ET TOTIUS COMMUNITATIS ET PATRLE
PUBLICUS INIMICUS. 3 Inst. 196. A forestaller
is an oppressor of the poor, and a public enemy
of the whole community and country.
FORSWEAR. In criminal law, to make oath to
that which the deponent knows to be untrue.
This term is wider in its scope than "perjury,"
for the latter, as a technical term, includes the
idea of the oath being taken before a competent
court or officer, and relating to a material issue,
which is not implied by the word "forswear."
Fowle v. Robbins, 12 Mass. 501; Tomlinson v.
Brittlebank, 4 Barn. & A. 632; Railway Co. v.
McCurdy, 114 Pa. 554, 8 A. 230, 60 Am.Rep. 363.
FORT. This term means "something more than
a mere military camp, post, or station. The term
implies a fortification, or a place protected from
attack by some such means as a moat, wall, or
parapet." U. S. v. Tichenor, C.C.Or., 12 F. 424.
FORTALICE, or FORTELACE. A fortress or
place of strength, which anciently did not pass
without a special grant. 11 Hen. VII. c. 18.
FORTALITIUM. In old Scotch law, a fortalice;
a castle. Properly a house or tower which has
a battlement or a ditch or moat about it.
FORTAXED. Wrongly or extortionately taxed.
FORTHCOMING. In Scotch law, the action by
which an arrestment (garnishment) is made ef-
fectual. It is a decree or process by which the
creditor is given the right to demand that the
sum arrested be applied for payment of his claim.
2 Kames, Eq. 288, 289; Bell.
FORTHCOMING BOND. A bond conditioned on
the forthcoming of property to answer such judg-
ment as may be entered. If the property be forth-
coming, no liability ensues. U. S. Fidelity & Guar-
anty Co. v. Sabath, 286 Ill.App. 320, 3 N.E.2d 330,
335.
A bond given to a sheriff who has levied on property,
conditioned that the property shall be forthcoming, i. e.,
produced, when required. On the giving of such bond, the
goods are allowed to remain in the possession of the debtor.
Hill v. Manser, 11 Grat., Va., 522 ; Nichols v. Chittenden,
14 Colo.App. 49, 59 P. 954; Burnham-Munger-Root Dry
Goods Co. v. Strahl, 102 Neb. 142, 166 N.W. 266.
FORTHWITH. Immediately; without delay, di-
rectly, hence within a reasonable time under the
circumstances of the case; promptly and with
reasonable dispatch. State ex rel. Board of Edu-
cation of City of Tulsa v. Morley, 168 Okl. 259,
34 P.2d 258, 261; 1 Chit. Archb. Pr. (12th Ed.)
164. Within such time as to permit that which
is to be done, to be done lawfully and according
to the practical and ordinary course of things to
be performed or accomplished. Harris v. Stew-
art, 187 Miss. 489, 193 So. 339, 342. The first op-
portunity offered. Abbott v. State, 117 Neb. 350,
220 N.W. 578, 579.
FORTIA. Force. In old English law. Force
used by an accessory, to enable the principal to
commit a crime, as by binding or holding a per-
son while another killed him, or by aiding or coun-
seling in any way, or commanding the act to be
done. Bract. fols. 138, 138b.
According to Lord Coke, fortia was a word of art, and
properly signified the furnishing of a weapon of force to
do the fact, and by force whereof the fact was committed,
and he that furnished it was not present when the fact was
done. 2 Inst. 182.
FORTIA FRISCA. Fresh force (q. v.).
FORTILITY. In old English law, a fortified place;
a castle; a bulwark. Cowell; 11 Hen. VII. c. 18.
FORTIOR. Lat. Stronger. A term applied, in
the law of evidence, to that species of presump-
tion, arising from facts shown in evidence, which
is strong enough to shift the burden of proof to
the opposite party. Burrill, Circ.Ev. 64, 66.
FORTIOR EST CUSTODIA LEGIS QUAM HOMI-
NIS. 2 Rolle, 325. The custody of the law is
stronger than that of man.
FORTIOR ET POTENTIOR EST DISPOSITIO
LEGIS QUAM HOMINIS. The disposition of the
law is of greater force and effect than that of man.
Co.Litt. 234a; Shep.Touch. 302; 15 East, 178.
The law in some cases overrides the will of the
individual, and renders ineffective or futile his
expressed intention or contract. Broom, Max.
697.
FORTIORI. See A Fortiori.
FORTIS. Lat. Strong. Fortis et sana, strong
and sound; staunch and strong; as a vessel.
Townsh.Pl. 227.
FORTLETT. A place or port of some strength;
a little fort. Old Nat. Brev. 45.
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FORTUIT. In French law, accidental; fortuitous.
Cas fortuit, a fortuitous event. Fortuitement, ac-
cidentally; by chance; casually.
FORTUITOUS. Happening by chance or accident.
Kermani v. Insurance Co. of North America, 142
Misc. 542, 255 N.Y.S. 687, 689. Occurring unex-
pectedly, or without known cause. Stanton v. Min-
neapolis St. Ry. Co., 195 Minn. 457, 263 N.W. 433,
434. Accidental; undesigned; adventitious. Re-
sulting from unavoidable physical causes. Zap-
pala v. Industrial Ins. Commission, 82 Wash. 314,
144 P. 54, L.R.A.1916A, 295.
FORTUITOUS COLLISION. In maritime law,
the accidental running foul of vessels. Peters v.
Warren Ins. Co., 14 Pet. 112, 10 L.Ed. 371.
FORTUITOUS EVENT. In the civil law, that
which happens by a cause which cannot be re-
sisted. An unforeseen occurrence, not caused by
either of the parties, nor such as they could pre-
vent.
In French it is called "cads fortuit." Civ. Code La. art.
3556, no. 15.
There is a difference between a fortuitous event, or in-
evitable accident, and irresistible force. By the former,
commonly called the "act of God," is meant any accident
produced by physical causes which are irresistible; such
as a loss by lightning or storms, by the perils of the seas,
by inundations and earthquakes, or by sudden death or ill-
ness. By the latter is meant such an interposition of hu-
man agency as is, from its nature and power, absolutely
uncontrollable. Of this nature are losses occasioned by the
inroads of a hostile army, or by public enemies. Story,
Baffin. § 25. In Workmen's Compensation Acts fortuitous
event is accidental happening, or accident that takes place
without design or expectation, or thing that happens from
irresistible cause. The term is expressly defined in several
acts. Stolp v. Department of Labor and Industries, 138
Wash. 685, 245 P. 20, 21; Stertz v. Industrial Insurance
Commission of Washington, 91 Wash. 588, 158 P. 256, 259,
Ann.Cas.1918B, 354; Zappala v. Industrial Ins. Commis-
sion, 82 Wash. 314, 144 P. 54, L.R.A.1916A, 295.
FORTUNA. Lat. Fortune; also treasure-trove.
Jacob.
FORTUNAM FACIUNT JUDICEM. They make
fortune the judge. Co. Litt. 167. Spoken of the
process of making partition among coparceners
by drawing lots for the several purparts.
FORTUNE TELLER. One who professes to tell
future events in the life of another. People v.
Plaskett, 171 Misc. 563, 13 N.Y.S.2d 682, 684.
In English law, persons pretending or profess-
ing to tell fortunes, and punishable as rogues and
vagabonds or disorderly persons. 4 Bl.Comm. 62.
FORTUNIUM. In old English law, a tournament
or fighting with spears, and an appeal to fortune
therein.
FORTY. In land laws and conveyancing, in those
regions where grants, transfers, and deeds are
made with reference to the subdivisions of the
government survey, this term means forty acres
of land in the form of a square, being the tract
obtained by quartering a section of land (640
acres) and again quartering one of the quarters.
Lente v. Clarke, 22 Fla. 515, 1 So. 149.
FORTY–DAYS COURT. In old English forest
law, the court of attachment in forests, or wood-
mote court.
FORUM. Lat. A court of justice, or judicial tri-
bunal; a place of jurisdiction; a place of litiga-
tion. 3 Story, 347. Place where remedy is pur-
sued. Rubin v. Gallagher, 294 Mich. 124, 292 N.W.
584, 586.
In Roman law, the market place, or public
paved court, in the city of Rome, where such pub-
lic business was transacted as the assemblies of
the people and the judicial trial of causes, and
where also elections, markets, and the public ex-
change were held.
FORUM ACTUS. The forum of the act. The
forum of the place where the act was done which
is now called in question.
FORUM BOVARIUM. See Bovarius.
FORUM CONSCIENTIZE. The forum or tribunal
of conscience.
FORUM CONTENTIOSUM. A contentious forum
or court; a place of litigation; the ordinary court
of justice, as distinguished from the tribunal of
conscience. 3 Bl.Comm. 211.
FORUM CONTRACTUS. The forum of the con-
tract; the court of the place where a contract is
made; the place where a contract is made, con-
sidered as a place of jurisdiction. 2 Kent, Comm.
463.
FORUM CONVENIENS. Place where testamen-
tary trustee may be reached by process. In re
Knox' Estate, 52 Ca1.App.2d 338, 126 P.2d 108, 113.
FORUM DOMESTICUM. A domestic forum or
tribunal. The visitatorial power is called a "forum
domesticum," calculated to determine, sine stre-
pitu, all disputes that arise within themselves. 1
W.B1. 82.
FORUM DOMICILII. The forum or court of the
domicile; the domicile of a defendant, considered
as a place of jurisdiction. 2 Kent, Comm. 463.
FORUM ECCLESIASTICUM. An ecclesiastical
court. The spiritual jurisdiction, as distinguished
from the secular.
FORUM LIGEANTIZE REI. The forum of de-
fendant's allegiance. The court or jurisdiction
of the country to which he owes allegiance.
FORUM NON CONVENIENS. The doctrine is
patterned upon the right of the court in the exer-
cise of its equitable powers to refuse the imposi-
tion upon its jurisdiction of the trial of cases even
though the venue is properly laid if it appears
that for the convenience of litigants and witness-
es and in the interest of justice the action should
be instituted in another forum where the action
might have been brought. Hayes v. Chicago, R. I.
& P. R. Co., D.C.Minn., 79 F.Supp. 821, 824. The
doctrine presupposes at least two forums in which
the defendant is amenable to process and fur-
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nishes criteria for choice between such forums.
Wilson v. Seas Shipping Co., D.C.Pa., 78 F.Supp.
464, 465; Neal v. Pennsylvania R. Co., D.C.N.Y., 77
F.Supp. 423, 424. The application of the doctrine
rests in the sound discretion of the court and the
factors to be considered in the doctrine are the
private interests of the litigant and the interest of
the public. Cullinan v. New York Cent. R. Co., D.
C.N.Y., 83 F.Supp. 870, 871. And a court, either
state or federal, will generally decline to interfere
with or control by injunction or otherwise the
management of internal affairs of a corporation
organized under the laws of another state, leaving
controversies as to such matters to courts of state
of domicile. Garrett v. Phillips Petroleum Co.,
Tex.Civ.App., 218 S.W.2d 238, 240; Murray v. Un-
ion Pac. R. Co., D.C.Ill., 77 F.Supp. 219; Kelley v.
American Sugar Refining Co., C.C.A.Mass., 139 F.
2d 76; Tiuoli Realty v. Interstate Circuit, C.C.A.
Tex., 167 F.2d 155; Rogers v. Guaranty Trust Co.,
288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652, 89 A.L.R.
720.
The rule is an equitable one embracing the discretionary
power of a court to decline to exercise jurisdiction which it
has over a transitory cause of action when it believes that
the action may be more appropriately and justly tried
elsewhere. Leet v. Union Pac. R. Co., 155 P.2d 42, 44, 25
Ca1.2d 605.
In determining whether doctrine should be applied, court
should consider relative ease of access to sources of proof,
availability of compulsory process for attendance of unwill-
ing witnesses, cost of obtaining attendance of willing wig
nesses, possibility of view of premises, and all other practi-
cal problems that make trial easy, expeditious and inex-
pensive. Di Lella v. Lehigh Val. R. Co., D.C.N.Y., 7 F.R.
D. 192, 193.
FORUM ORIGINIS. The court of one's nativity.
The place of a person's birth, considered as a
place of jurisdiction.
FORUM REGIUM. The king's court. St. Westm.
2, c. 43.
FORUM REI. This term may mean either (1) the
forum of the defendant, that is, of his residence
or domicile; or (2) the forum of the res or thing
in controversy, that is, of the place where the
property is situated. The ambiguity springs from
the fact that rei may be the genitive of either
reus or res.
FORUM REI GESTAZE. The forum or court of a
res fiesta (thing done;) the place where an act
is done, considered as a place of jurisdiction and
remedy. 2 Kent, Comm. 463.
FORUM REI SIT2E. The court where the thing
in controversy is situated. The place where the
subject-matter in controversy is situated, consid-
ered as a place of jurisdiction. 2 Kent, Comm.
463.
FORUM SECULARE. A secular, as distinguished
from an ecclesiastical or spiritual, court.
FORURTH. In old records, a long slip of ground.
Cowell.
FORWARD. To send forward; to send toward
the place of destination; to transmit. Nicoletti
v. Bank of Los Banos, 190 Cal. 637, 214 P. 51, 52,
27 A.L.R. 1479; Katcher v. American Express Co.,.
94 N.J.L. 165, 109 A. 741, 742.
FORWARDING MERCHANT, or FORWARDER.
One who receives and forwards goods, taking up-
on himself the expenses of transportation, for
which he receives a compensation from the own-
ers, having no concern in the vessels or wagons
by which they are transported, and no interest in,
the freight, and not being deemed a common car-
rier, but a mere warehouseman and agent. Story,
Bailm. §§ 502, 509. Schloss v. Wood, 11 Colo. 287,.
17 P. 910; Bush v. Miller, 13 Barb. N.Y. 488.
FOSSA. In the Civil law, a ditch; a receptacle of
water, made by hand. Dig. 43, 14, 1, 5.
In Old English law, a ditch. A pit full of water,
in which women committing felony were drowned.
A grave or sepulcher. Spelman.
FOSSAGIUM. In old English law, the duty levied
on the inhabitants for repairing the moat or ditch
round a fortified town.
FOSSATORUM OPERATIO. In old English law,
fosse-work; or the service of laboring, done by in-
habitants and adjoining tenants, for the repair
and maintenance of the ditches round a city or
town, for which some paid a contribution, called
"fossagium." Cowell.
FOSSATUM. A dyke, ditch, or trench; a place
inclosed by a ditch; a moat; a canal.
FOSSE-WAY, or FOSSE. One of the four ancient
Roman ways through England. Spelman.
FOSSELLUM. A small ditch. Cowell.
FOSTER PARENT. One who has performed the
duties of a parent to the child of another by rear-
ing the child as his own child; "foster child." In
re Norman's Estate, 209 Minn. 19, 295 N.W. 63, 66.
FOSTERAGE. Care of a foster child, brother,
sister, parent, etc.—one considered as holding the
relationship indicated in consequence of nursing
and rearing, though not related by blood. In re
Norman's Estate, 295 N.W. 63, 66, 209 Minn. 19.
FOSTERING. A ancient custom in Ireland, in
which persons put away their children to fosterers.
Fostering was held to be a stronger alliance than
blood, and the foster children participated in the
fortunes of their foster fathers. Mozley & Whit.
ley.
FOSTERLAND. Land given, assigned, or allotted
to the finding of food or victuals for any person
or persons; as in monasteries for the monks, etc,
Cowell; Blount.
FOSTERLEAN. The remuneration fixed for the
rearing of a foster child; also the jointure of a
wife. Jacob.
FOUJDAR. In Hindu law, under the Mogul gov.
ernment a magistrate of the police over a large
district, who took cognizance of all criminal mat-
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ters within his jurisdiction, and sometimes was
employed as receiver general of the revenues.
Wharton.
FOUJDARRY COURT. In Hindu law, a tribunal
for administering criminal law.
FOUND. A person is said to be found within a
state when actually present therein. Patient re-
moved to a sanitarium in county was "found" in
county. In re Cash, 383 Ill. 409, 50 N.E.2d 487,
490. But only if a person is in a place voluntarily
and not by reason of plaintiff's fraud, artifice, or
trick for purpose of obtaining service. Shields v.
Shields, 115 Mont. 140, 139 P.2d 528, 530, 531. It
does not necessarily mean physical presence: de-
fendant who, after removal of action for breach
of contract to federal court, entered general ap-
pearance, defended on the merits, and filed coun-
terclaim, was "found" in the district. Freeman v.
Bee Mach. Co., Mass., 319 U.S. 448, 63 S.Ct. 1146,
1149, 87 L.Ed. 1509.
As applied to a corporation it is necessary that
it be doing business in such state through an of-
ficer or agent or by statutory authority in such
manner as to render it liable then to suit and to
constructive or substituted service of process. Ro-
maine v. Ins. Co., C.C.Tenn., 55 F. 751; Venner v.
Pennsylvania Steel Co. of New Jersey, D.C.N.J.,
250 F. 292, 295; Haskell v. Aluminum Co. of Amer-
ica, D.C.Mass., 14 F.2d 864, 867. And to such an
extent that actual presence is established. Wes-
tor Theatres v. Warner Bros. Pictures, D.C.N.J.,
41 F.Supp. 757, 760.
FOUNDATION. The founding or building of a col-
lege or hospital. The incorporation or endowment
of a college or hospital is the foundation; and
he who endows it with land or other property is
the founder. Dartmouth College v. Woodward, 4
Wheat. 667, 4 L.Ed. 629; Seagrave's Appeal, 125
Pa. 362, 17 A. 412; Union Baptist Ass'n v. Hunn,
7 Tex.Civ.App. 249, 26 S.W. 755.
FOUNDED. Based upon; arising from, growing
out of, or resting upon; as in the expressions
"founded in fraud," "founded on a consideration,"
"founded on contract," and the like. In re Grant
Shoe Co., C.C.A.N.Y., 130 F. 881, 66 C.C.A. 78;
Palmer v. Preston, 45 Vt. 158, 12 Am.Rep. 191;
Steele v. Hoe, 14 Adol. & El. 431; In re Morales,
D.C.Fla., 105 F. 761.
FOUNDED ON. To serve as a base or basis for.
Keen v. Mid-Continent Petroleum Corp., D.C.Iowa,
58 F.Supp. 915, 922.
FOUNDER. The person who endows an eleemosy-
nary corporation or institution, or supplies the
funds for its establishment. See Foundation.
FOUNDERS' SHARES. In English Company
Law, shares issued to the founders of (or ven-
dors to) a public company as a part of the con-
sideration for the business, or concession, etc.,
taken over, and not forming a part of, the ordi-
nary capital. As a rule, such shares only parti-
cipate in profits after the payment of a fixed mini-
mum dividend on paid-up capital. Encyc. Dict.
Black's Law Dictionary Revised 4th Ed.-50
FOUNDEROSA. Founderous; out of repair, as a
road. Cro. Car. 366.
FOUNDLING. A deserted or exposed infant; a
child found without a parent or guardian, its rel-
atives being unknown. It has a settlement in the
district where found. State ex rel. Wilson v.
Pierre, 155 La. 510, 99 So. 421.
FOUNDLING HOSPITALS. Charitable institu-
tions which exist in most countries for taking care
of infants forsaken by their parents, such being
generally the offspring of illegal connections. The
foundling hospital act in England is the 13 Geo.
II. c. 29.
FOUR. Fr. In old French law, an oven or bake-
house. Four banal, an oven, owned by the seignior
of the estate, to which the tenants were obliged to
bring their bread for baking. Also the proprie-
tary right to maintain such an oven.
FOUR CORNERS. The face of a written instru-
ment.
That which is contained on the face of a deed (without
any aid from the knowledge of the circumstances under
which it is made) is said to be within its four corners, be-
cause every deed is still supposed to be written on one en-
tire skin, and so to have but four corners.
To look at the four corners of an instrument is to ex-
amine the whole of it, so as to construe it as a whole,
without reference to any one part more than another. 2
Smith, Lead.Cas. 295.
FOUR SEAS. The seas surrounding England.
These were divided into the Western, including the
Scotch and Irish; the Northern, or North sea; the
Eastern, being the German ocean; the Southern,
being the British channel.
FOURCHER. Fr. To fork. This was a method
of delaying an action anciently resorted to by
defendants when two of them were joined in the
suit. Instead of appearing together, each would
appear in turn and cast an essoin for the other,
thus postponing the trial.
FOURIERISM. A form of socialism. See 1 Mill,
Pol. Ec. 260.
FOURTEENTH AMENDMENT. The Fourteenth
Amendment of the constitution of the United
States.
It became a part of the organic law July 28, 1868, and its
importance entitles it to special mention. It creates or at
least recognizes for the first time a citizenship of the Unit-
ed States, as distinct from that of the states; forbids the
making or enforcement by any state of any law abridging
the privileges and immunities of citizens of the United
States; and secures all "persons" against any state action
which is either deprivation of life, liberty, or property
without due process of law or denial of the equal protec-
tion of the laws.
FOWLS OF WARREN. Such fowls as are pre-
served under the game laws in warrens. Accord-
ing to Manwood, these are partridges and pheas-
ants. According to Coke, they are partridges,
rails, quails, woodcocks, pheasants, mallards, and
herons. Co. Litt. 233.
FOX'S LIBEL ACT. In English law, this was the
statute 52 Geo. III. c. 60, which secured to juries,
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upon the trial of indictments for libel, the right
of pronouncing a general verdict of guilty or not
guilty upon the whole matter in issue, and no
longer bound them to find a verdict of guilty on
proof of the piblication of the paper charged to
be a libel, and of the sense ascribed to it in the:
indictment. Wharton.
FOY. L. Fr. Faith; allegiance; fidelity.
FR. A Latin abbreviation for "fragmentum," a
fragment, used in citations to the Digest or Pan-
dects in the Corpus Juris Civilis of Justinian, the
several extracts from juristic writings of which
It is composed being so called.
FRACTIO. Lat. A breaking; division; fraction;
a portion of a thing less than the whole.
FRACTION. A breaking, or breaking up; a frag-
ment or broken part; a portion of a thing, less
than the whole. Jory v. Palace Dry Goods Co., 30
Or. 196, 46 P. 786.
FRACTION OF A DAY. A portion of a day. The
dividing a day. Generally, the law does not allow
the fraction of a day. 2 Bl.Comm. 141.
FRACTIONAL. As applied to tracts of land, par-
ticularly townships, sections, quarter sections, and
other divisions according to the government sur-
vey, and also mining claims, this term means that
the exterior boundary lines are laid down to in-
clude the whole of such a division or such a claim,
but that the tract in question does not measure
up to the full extent or include the whole acreage,
because a portion of it is cut off by an overlapping
survey, a river or lake, or some other external
interference. Tolleston Club v. State, 38 N.E. 214,
141 Ind. 197; Parke v. Meyer, 28 Ark. 287; Goiter-
mann v. Schiermeyer, 111 Mo. 404, 19 S.W. 487.
Any irregular division whether containing more or
less than conventional amount of acreage. Gray-
sonia-Nashville Lumber Co. v. Wright, 117 Ark.
151, 175 S.W. 405; South Florida Farms Co. v.
Goodno, 84 Fla. 532, 94 So. 672, 675.
FRACTIONEM DIEI NON RECIPIT LEX. Lofft,
572. The law does not take notice of a portion of
a day.
FRACTITIUM. Arable land. Mon. Angl.
FRACTURA NAVIUM. Lat. The breaking or
wreck of ships; the same as naufragium, (q. v.)
FRAGMENTA. Lat. Fragments. A name some-
times applied (especially in citations) to the Di-
gest or Pandects in the Corpus Juris Civilis of Jus-
tinian, as being made up of numerous extracts
or "fragments" from the writings of various jur-
ists. Mackeld. Rom. Law, § 74.
FRAIS. Fr. Expense; charges; costs. Frais d'un
procês, costs of a suit.
FRAIS DE JUSTICE. In French and Canadian
law, costs incurred incidentally to the action.
FRAIS JUSQU'A BORD. Fr. In French commer-
cial law, expenses to the board; expenses incurred
on a shipment of goods, in packing, cartage, com-
missions, etc., up to the point where they are ac-
tually put on board the vessel. Bartels v. Red-
field, C.C.N.Y., 16 F. 336.
FRAME-UP. Conspiracy or plot, especially for
evil purpose, as to incriminate person on false evi-
dence. State v. Bissell, 106 Vt. 80, 170 A. 102, 108.
FRAMED. When used to describe evidence, word
is generally accepted as implying that willful per-
jurers, suborned by and conspiring with parties
in interest to litigation, are swearing or have
sworn to matters without any basis ih fact. Tri-
State Transit Co. of Louisiana v. Westbrook, 207
Ark. 270, 180 S.W.2d 121. 125.
FRANC. A French coin of the value of a little
over eighteen cents. Levy v. Cleveland, C., C. &
St. L. Ry. Co., 210 App.Div. 422, 206 N.Y.S. 261, 262.
FRANC ALEU. In French feudal law, an allod;
a free inheritance; or an estate held free of any
services except such as were due to the sovereign.
FRANC TENANCIER. In French law, a free-
holder.
FRANCHILANUS. A freeman. Chart. Hen. IV.
A free tenant. Spelman.
FRANCHISE. A special privilege conferred by
government on individual or corporation, and
which does not belong to citizens of country gen-
erally of common right. Elliott v. City of Eugene,
135 Or. 108, 294 P. 358, 360. In England it is de-
fined to be a royal privilege in the hands of a
subject.
A "franchise," as used by Blackstone in defining quo
warranto, (3 Corn. 262 [4th Am. Ed.] 322), had reference
to a royal privilege or branch of the king's prerogative
subsisting in the hands of the subject, and must arise from
the king's grant, or be held by prescription, but today we
understand a franchise to be some special privilege con-
ferred by government on an individual, natural or artificial,
which is not enjoyed by its citizens in general. State v.
Fernandez, 106 Fla. 779, 143 So. 638, 639, 86 A.L.R. 240.
In this country a franchise is a privilege or immunity of
a public nature, which cannot be legally exercised with-
out legislative grant. To be a corporation is a franchise.
The various powers conferred on corporations are fran-
chises. The execution of a policy of insurance by an in-
surance company, and the issuing a bank-note by an in-
corporated bank, are franchises. People v. Utica Ins. Co.,
15 Johns., N.Y., 387, 8 Am.Dec. 243. But it does not em-
brace the property acquired by the exercise of the fran-
chise. Bridgeport v. New York & N. H. R. Co., 36 Conn.
255, 4 Am. Rep. 63. Nor involve interest in land acquired
by grantee. Whitbeck v. Funk, 140 Or. 70, 12 P.2d 1019,
1020. In a popular sense, the political rights of subjects
and citizens are franchises, such as the right of suffrage,
etc. Pierce v. Emery, 32 N.H. 484; State v. Black Dia-
mond Co., 97 Ohio St. 24, 119 N.E. 195, 199, L.R.A.1918E,
352.
Elective Franchise. The right of suffrage; the right or
privilege of voting in public elections.
Exclusive Franchise. See Exclusive Privilege or Fran-
chise.
General and Special. The charter of a corporation is its
"general" franchise, while a "special" franchise consists
in any rights granted by the public to use property for a
public use but with private profit. Lord v. Equitable Life
Assur. Soc., 194 N.Y. 212, 87 N.E. 443, 22 L.R.A.,N.S., 420.
Personal Franchise. A franchise of corporate existence,
or one which authorizes the formation and existence of a
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corporation, is sometimes called a "personal" franchise,
as distinguished from a "property" franchise, which au-
thorizes a corporation so formed to apply its property to
some particular enterprise or exercise some special privi-
lege in its employment, as, for example, to construct and
operate a railroad. See Sandham v. Nye, 9 Misc.Rep. 541,
30 N.Y.S. 552.
Secondary Franchises. The franchise of corporate exist-
ence being sometimes called the "primary" franchise of
a corporation, its "secondary" franchises are the special
and peculiar rights, privileges, or grants which it may re-
ceive under its charter or from a municipal corporation,
such as the right to use the public streets, exact tolls,
collect fares, etc. State v. Topeka Water Co., 61 Kan.
547, 60 P. 337; Virginia Canon Toll Road Co. v. People,
22 Colo. 429, 45 P. 398, 37 L.R.A. 711. The franchises of a
corporation are divisible into (1) corporate or general
franchises; and (2) "special or secondary franchises."
The former is the franchise to exist as a corporation, while
the latter are certain rights and privileges conferred upon
existing corporations. Gulf Refining Co. v. Cleveland Trust
Co., 166 Miss. 759, 108 So. 158, 160.
Special Franchises. See Secondary Franchises, supra.
FRANCHISE TAX. A tax on the franchise of a
corporation, that is, on the right and privilege of
carrying on business in the character of a cor-
poration, for the purposes for which it was creat-
ed, and in the conditions which surround it. In re
Commercial Safe Deposit Co. of Buffalo, 148 Misc.
527, 266 N.Y.S. 626.
Though the value of the franchise, for purposes of taxa-
tion, may be measured by the amount of business done, or
the amount of earnings or dividends, or by the total value
of the capital or stock of the corporation in excess of its
tangible assets, a franchise tax is not a tax on either prop-
erty, capital, stock, earnings, or dividends. Home Ins. Co.
v. New York, 134 U.S. 594, 10 S.Ct. 593, 33 L.Ed. 1025;
Worth v. Petersburg R. Co., 89 N.C. 305; People v. Knight,
174 N.Y. 475, 67 N.E. 65, 63 L.R.A. 87; Greene v. Louis-
ville & I. R. Co., 244 U.S. 499, 37 S.Ct. 673, 678, 61 L.Ed.
1280, Ann.Cas.1917E, 88; American Refining Co. v. Staples,
Tex.Com.App., 269 S.W. 420, 421. Nor a tax on franchise
in technical sense, but on all intangible property of such a
corporation, not otherwise taxed, used in state as compo-
nent part of corporation's entire system. Western Union
Telegraph Co. v. Weaver, D.C.Neb., 5 F.Supp. 493, 497.
It is tax on intangible values inhering to business and
added value given to tangible property, being "ad valorem"
as distinguished from "excise" or "privilege" tax. State
Tax Commission v. Petroleum Exploration, 253 Ky. 119, 68
S.W.2d 777.
FRANCIA. France. Bract. fol. 427b.
FRANCIGENA. A man born in France. A de-
signation formerly given to aliens in England.
See Frenchman.
FRANCUS. L. Lat. Free; a freeman; a Frank.
Spelman.
FRANCUS BANCUS. Free bench (q. v.).
FRANCVS HOMO. In old European law. A free
man. Domesday.
FRANCUS PLEGIUS. In old English law, a frank
pledge, or free pledge. See Frank-Pledge.
FRANCUS TENENS. A freeholder. See Frank-
Tenement.
FRANK, v. To send matter through the public
mails free of postage, by a personal or official
privilege.
FRANK, adj. In old English law, free. Occur-
ring in several compounds.
FRANK-ALMOIGNE. In English law, free alms.
A spiritual tenure whereby religious corporations,
aggregate or sole, held lands of the donor to them
and their successors forever.
They were discharged of all other except religious serv-
ices, and the trinoda necessitas. It differs from tenure by
divine service, in that the latter required the performance
of certain divine services, whereas the former, as its name
imports, is free. This tenure is expressly excepted in the
12 Car. II. c. 24, § 7, and therefore still subsists in some
few instances. 2 Broom & H. Comm. 203.
FRANK BANK. In old English law, free bench.
Litt. § 166; Co. Litt. 110b. See Free-Bench.
FRANK-CHASE. A liberty of free chase enjoyed
by any one, whereby all other persons having
ground within that compass are forbidden to cut
down wood, etc., even in their own demesnes, to
the prejudice of the owner of the liberty. Cowell.
See Chase.
FRANK-FEE. Freehold lands exempted from all
services, but not from homage; lands held other-
wise than in ancient demesne. That which a man
holds to himself and his heirs, and not by such
service as is required in ancient demesne, accord-
ing to the custom of the manor. Cowell.
FRANK FERM. In English law, a species of es-
tate held in socage, said by Britton to be "lands
and tenements whereof the nature of the fee is
changed by feoffment out of chivalry for certain
yearly services, and in respect whereof neither
homage, ward, marriage, nor relief can be de-
manded." Britt. c. 66; 2 Bl.Comm. 80.
FRANK-FOLD. In old English law, free-fold; a
privilege for the lord to have all the sheep of his
tenants and the inhabitants within his seigniory,
in his fold, in his demesnes, to manure his land.
Keilw. 198.
FRANK-LAW. An obsolete expression signifying
the rights and privileges of a citizen, or the liber-
ties and civic rights of a freeman.
FRANK-MARRIAGE. A species of entailed es-
tates, in English law, now grown out of use, but
still capable of subsisting.
When tenements are given by one to another, together
with a wife, who is a daughter or cousin of the donor, to
hold in frank-marriage, the donees shall have the tene-
ments to them and the heirs of their two bodies begotten,
i. e., in special tail.  For the word "frank-marriage,"
ex vi termini, both creates and limits an inheritance, not
only supplying words of descent, but also terms of procre-
ation. The donees are liable to no service except fealty,
and a reserved rent would be void, until the fourth de-
gree of consanguinity be passed between the issues of the
donor and donee, when they were capable by the law of
the church of intermarrying. Litt. § 19; 2 BI.Comm. 115.
FRANK-PLEDGE. In old English law, a pledge
or surety for freemen; that is, the pledge, or
corporate responsibility, of all the inhabitants of
a tithing for the general good behavior of each
free-born citizen above the age of fourteen, and
for his being forthcoming to answer any infrac-
tion of the law. Termes de la Ley; Cowell.
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FRANK-TENANT. A freeholder. Litt. § 91.
FRANK-TENEMENT. In English law, a free
tenement, freeholding, or freehold. 2 Bl.Comm.
61, 62, 104; 1 Steph.Comm. 217; Bract. fol. 207.
Used to denote both the tenure and the estate.
FRANKING PRIVILEGE. The privilege of send-
ing certain matter through the public mails with-
out payment of postage, in pursuance of a per-
sonal or official privilege.
FRANKLEYN (spelled, also, "Francling" and
"Franklin"). A freeman; a freeholder; a gentle-
man. Blount; Cowell.
FRASSETUM. In old English law, a wood or
wood-ground where ash-trees grow. Co. Litt. 4b.
FRATER. In the civil law, a brother. Frater
consanguineus, a brother having the same father,
but born of a different mother. Frater uterinus,
a brother born of the same mother, but by a dif-
ferent father. Frater nutricius, a bastard brother.
FRATER FRATRI UTERINO NON SUCCEDET
IN Hi zEREDITATE PATERNA. A brother shall
not succeed a uterine brother in the paternal in-
heritance. 2 Bl.Comm. 223; Fortes. de Laud. c.
5. A maxim of the common law of England, now
superseded by the statute 3 & 4 Wm. IV. c. 106,
9. See Broom, Max. 530.
FRATERIA. In old records, a fraternity, brother-
hood, or society of religious persons, who were
mutually bound to pray for the good health and
life, etc., of their living brethren, and the souls
of those that were dead. Cowell.
FRATERNAL. Brotherly; relating or belonging
to a fraternity or an association of persons formed
for mutual aid and benefit, but not for profit. In
re Mason Tire & Rubber Co., 56 App.D.C. 170, 11 F.
2d 556, 557.
FRATERNAL BENEFIT ASSOCIATION. One
whose members have adopted the same, or a very
similar, calling, avocation, or profession, or who
are working in unison to accomplish some worthy
object, and who for that reason have banded
themselves together as an association or society
to aid and assist one another, and to promote the
common cause. Alpha Rho Alumni Ass'n v. City
of New Brunswick, 126 N.J.L. 233, 18 A.2d 68, 70.
An association having a representative form of
government and a lodge system with a ritualistic
form of work for the meeting of its chapters, or
other subordinate bodies. Fain v. Feldman, 191
Ga. 519, 13 S.E.2d 179, 181. A society or voluntary
association organized and carried on for the mu-
tual aid and benefit of its members, not for prof-
it; which ordinarily has a lodge system, a ritual-
istic form of work, and a representative govern-
ment, makes provision for the payment of death
benefits, and (sometimes) for benefits in case of
accident, sickness, or old age, the funds therefor
being derived from dues paid or assessments lev-
ied on the members. National Union v. Marlow,
Mo., 74 F. 778, 21 C.C.A. 89; Walker v. Giddings,
103 Mich. 344, 61 N.W. 512.
FRATERNAL INSURANCE. The form of life (or
accident) insurance furnished by a fraternal bene-
ficial association, consisting in the payment to a
member, or his heirs in case of death, of a stipu-
lated sum of money, out of funds raised for that
purpose by the payment of dues or assessments by
all the members of the association.
FRATERNIA. A fraternity or brotherhood.
FRATERNITY. A body of men associated for
their common interest, business or pleasure. Wom-
an's Club of Little Falls v. Township of Little
Falls, 20 N.J.Misc. 278, 26 A.2d 739, 741; Alpha
Rho Alumni Ass'n v. City of New Brunswick, 126
N.J.L. 233, 18 A.2d 68, 71. Organizations composed
of either or both sexes. State v. Allen, 189 Ind.
369, 127 N.E. 145, 146. Brotherly regard and sym-
pathy for others. Donnelly v. Sovereign Camp
W. 0. W., 111 Neb. 499, 197 N.W. 125, 127.
In American colleges, a student organization, either a
nationally chartered society comprising many affiliated
chapters or a single chapter in one institution formed
chiefly to promote friendship and welfare among the mem-
bers, and usually having secret rites and a name consisting
of Greek letters. Woman's Club of Little Falls v. Town-
ship of Little Falls, 20 N.J.Misc. 278, 26 A.2d 739, 741;
Alpha Rho Alumni Ass'n v. City of New Brunswick, 126
N.J.L. 233, 18 A.2d 68, 71.
In old English law, "some people of a place united to-
gether in respect to a mystery or business into a company,
and their laws and ordinances cannot bind strangers."
Cuddon v. Eastwick, 1 Salk. 192.
FRATRES CONJURATI. Sworn brothers or com-
panions for the defense of their sovereign, or for
other purposes. Hoved. 445.
FRATRES PYES. In old English law, certain
friars who wore white and black garments. Wal-
singham, 124.
FRATRIAGE. A younger brother's inheritance.
FRATRICIDE. One who has killed a brother or
sister; also the killing of a brother or sister.
FRAUD. An intentional perversion of truth for
the purpose of inducing another in reliance upon
it to part with some valuable thing belonging to
him or to surrender a legal right; a false repre-
sentation of a matter of fact, whether by words or
by conduct, by false or misleading allegations,
or by concealment of that which should have been
disclosed, which deceives and is intended to de-
ceive another so that he shall act upon it to his
legal injury. Brainerd Dispatch Newspaper Co.
v. Crow Wing County, 196 Minn. 194, 264 N.W.
779, 780. Any kind of artifice employed by one
person to deceive another. Goldstein v. Equitable
Life Assur. Soc. of U. S., 160 Misc. 364, 289 N.Y.S.
1064, 1067. A generic term, embracing all multi-
farious means which human ingenuity can devise,
and which are resorted to by one individual to
get advantage over another by false suggestions
or by suppression of truth, and includes all sur-
prise, trick, cunning, dissembling, and any unfair
way by which another is cheated. Johnson v. Mc-
Donald, 170 Okl. 117, 39 P.2d 150. "Bad faith" and
"fraud" are synonymous, and also synonyms of
dishonesty, infidelity, faithlessness, perfidy, unfair-
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FRAUDULENT
ness, etc. Joiner v. Joiner, Tex.Civ.App., 87 S.W.
2d 903, 914, 915.
It consists of some deceitful practice or willful device,
resorted to with intent to deprive another of his right, or
some manner to do him an injury. As distinguished
from negligence, it is always positive, intentional. Maher
v. Hibernia Ins. Co., 67 N.Y. 292; Alexander v. Church,
53 Conn. 561, 4 A. 103; Studer v. Bleistein, 115 N.Y. 316,
22 N.E. 243, 7 L.R.A. 702; McNair v. Southern States Fi-
nance Co., 191 N.C. 710, 133 S.E. 85, 88. It comprises all
acts, omissions, and concealments involving a breach of a
legal or equitable duty and resulting in damage to another.
Coppo v. Coppo, 163 Misc. 249, 297 N.Y.S. 744, 750. And
includes anything calculated to deceive, whether it be a
single act or combination of circumstances, whether the
suppression of truth or the suggestion of what is false,
whether it be by direct falsehood or by innuendo, by speech
or by silence, by word of mouth, or by look or gesture.
People v. Gilmore, 345 Ill. 28, 177 N.E. 710, 717. Fraud,
as applied to contracts, is the cause of an error bearing
on a material part of the contract, created or continued by
artifice, with design to obtain some unjust advantage to
the one party, or to cause an inconvenience or loss to the
other. Civil Code La. art. 1847. Strauss v. Insurance Co.
of North America, 157 La. 661, 102 So. 861, 865; Jesse
French Piano & Organ Co. v. Gibbon, Tex.Civ.App., 180 S.
W. 1185, 1187.
Fraud, in the sense of a court of equity, properly in-
cludes all acts, omissions, and concealments which in-
volve a breach of legal or equitable duty, trust, or confi-
dence justly reposed, and are injurious to another, or by
which an undue and unconscientious advantage is taken
of another. 1 Story, Eq.Jur. § 187; Howard v. West Jersey
& S. S. R. Co., 102 N.J.Eq. 517, 141 A. 755, 757.
Fraud is either actual or constructive.  Actual fraud
consists in deceit, artifice, trick, design, some direct and
active operation of the mind ; it includes cases of the in-
tentional and successful employment of any cunning, de-
ception, or artifice used to circumvent or cheat another;
it is something said, done, or omitted by a person with
the design of perpetrating what he knows to be a cheat or
deception. Constructive fraud consists in any act of com-
mission or omission contrary to legal or equitable duty,
trust, or confidence justly reposed, which is contrary to
good conscience and operates to the injury of another. Or,
as otherwise defined, it is an act, statement or omission
which operates as a virtual fraud on an individual, or
which, if generally permitted, would be prejudicial to the
public welfare, and yet may have been unconnected with
any selfish or evil design. Or, according to Story, construc-
tive frauds are such acts or contracts as, though not origi-
nating in any actual evil design or contrivance to perpe-
trate a positive fraud or injury upon other persons, are
yet, by their tendency to deceive or mislead other persons,
or to violate private or public confidence, or to impair or
injure the public interests, deemed equally reprehensible
with actual fraud. 1 Story, Eq.Jur. § 258. Code Ga.1882, §
3173 (Civ.Code 1910, § 4622) ; People v. Kelly, 35 Barb.,
N.Y., 457; Jackson v. Jackson, 47 Ga. 99; Massachusetts
Ben. L. Ass'n v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.
A. 261; Allen v. United States Fidelity & Guaranty Co.,
269 Ill. 234, 109 N.E. 1035, 1038.
Fraud is also classified as fraud in fact and fraud in law.
The former is actual, positive, intentional fraud. Fraud
disclosed by matters of fact, as distinguished from con-
structive fraud or fraud in law. McKibbin v. Martin, 64
Pa. 356, 3 Am.Rep. 588; Cook v. Burnham, 3 Kan.App. 27,
44 P. 447. Fraud in law is fraud in contemplation of law;
fraud implied or inferred by law; fraud made out by con-
struction of law, as distinguished from fraud found by a
jury from matter of fact; constructive fraud (q. v.). See 2
Kent, Comm. 512-532; Delaney v. Valentine, 154 N.Y. 692,
49 N.E. 65; Lovato v. Catron, 20 N.M. 168, 148 P. 490, 492,
L.R.A.1915E, 451; Furst & Thomas v. Merritt, 190 N.C. 397,
130 S.E. 40, 43.
Fraud is also said to be legal or positive. The former is
fraud made out by legal construction or inference, or the
same thing as constructive fraud. Newell v. Wagness, 1 N.
D. 62, 44 N.W. 1014. Positive fraud is the same thing as
actual fraud. Douthitt v. Applegate, 33 Kan. 395, 6 P.
575, 52 Am.Rep. 533; Nocatee Fruit Co. v. Fosgate, C.C.A.
Fla., 12 F.2d 250, 252.
Actionable fraud. See Actionable.
Extrinsic or collateral fraud justifying equitable relief
against a judgment or decree means some intentional act
or conduct by which the prevailing party has prevented the
unsuccessful party from having a fair submission of the
controversy. Farley v. Davis, 10 Wash.2d 62, 116 P.2d 263,
268.
Pious fraud is a subterfuge or evasion considered moral-
ly justifiable on account of the ends sought to be promoted;
particularly applied to an evasion or disregard of the laws
in the interests of religion or religious institutions, such
as circumventing the statutes of mortmain.
Statute of Frauds. This is the common designation of a
very celebrated English statute, (29 Car. II. c. 3,) passed in
1677, and which has been adopted, in a more or less modi-
fied form, in nearly all of the United States. Its chief
characteristic is the provision that no suit or action shall
be maintained on certain classes of contracts or engage-
ments unless there shall be a note or memorandum thereof
in writing signed by the party to be charged or by his
authorized agent. Its object was to close the door to the
numerous frauds and perjuries. It is more fully named as
the "statute of frauds and perjuries." Smith v. Morton,
70 Okl. 157, 173 P. 520, 521; Housley v. Strawn Merchan-
dise Co., Tex.Com.App., 291 S.W. 864, 867; Norman v. Bul-
lock County Bank, 187 Ala. 33, 65 So. 371, 372; Garber v.
Goldstein, 92 Conn. 226, 102 A. 605, 606.
FRAUD IN TREATY. Arises where a person is
induced by some fraudulent representation or pre-
tense to execute the very instrument intended to
be executed but under a misrepresentation as to
the contents thereof. Meyers v. Murphy, 181 Md.
98, 28 A.2d 861, 862.
FRAUD ORDER. A name given to orders issued
by the postmaster general, under Rev.St. §§ 3929,
4041, 39 U.S.C.A. §§ 259, 732, for preventing the use
of the mails as an agency for conducting schemes
for obtaining money or property by means of false
or fraudulent pretences, etc.
They are not restricted to schemes which lack all the ele-
ments of legitimate business, but the statute applies "when
a business, even if otherwise legitimate, is systematically
and designedly conducted upon the plan of inducing itsp atrons by means of false representations to part with their
money in the belief that they are purchasing something
different from, superior to, and worth more than, what is
actually sold;" Harris v. Rosenberger, Mo., 145 F. 449, 16
C.C.A. 225, 13 L.R.A.,N.S., 762.
The fraud order is issued to the postmaster of the office
through which the person affected by it receives his mail.
It forbids the post-master to pay any postal money order
to the specified person, and instructs the postmaster to
return all letters to the senders if practicable, or if not, to
the dead letter office, stamped in either case with the word
"fraudulent." The method of testing the validity of the
fraud order is to apply to the federal court for an injunc-
tion to restrain the postmaster from executing it. The de-
cision of the postmaster-general is not the exercise of a
judicial function; if he exceeds his jurisdiction, the party
injured may have relief in equity; Degge v. Hitchcock, 229
U.S. 162, 33 S.Ct. 639, 57 L. Ed. 1135.
FRAUDARE. Lat. In the civil law, to deceive,
cheat, or impose upon; to defraud.
FRAUDULENT. Based on fraud; proceeding
from or characterized by fraud; tainted by fraud;
done, made, or effected with a purpose or design
to carry out a fraud. For "False and Fraudulent"
and "False or Fraudulent Claim," see those titles.
FRAUDULENT ALIENATION. In a general
sense, the transfer of property with an intent to
defraud creditors, lienors, or others. In a particu-
lar sense, the act of an administrator who wastes
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FRAUDULENT
the assets of the estate by giving them away or
selling at a gross undervalue. Rhame v. Lewis,
13 Rich.Eq., S.C., 269.
FRAUDULENT ALIENEE. One who knowingly
receives from an administrator assets of the es-
tate under circumstances which make it a fraudu-
lent alienation on the part of the administrator.
Rhame v. Lewis, 13 Rich.Eq., S.C., 269.
FRAUDULENT CONCEALMENT. The hiding or
suppression of a material fact or circumstance
which the party is legally or morally bound to
disclose. Magee v. Insurance Co., 92 U.S. 93, 23
L.Ed. 699; Small v. Graves, 7 Barb., N.Y., 578.
The test of whether failure to disclose material facts
constitutes fraud is the existence of a duty, legal or
equitable, arising from the relation of the parties ; failure
to disclose a material fact with intent to mislead or de-
fraud under such circumstances being equivalent to an
actual "fraudulent concealment." Newell Bros. v. Hanson,
97 Vt. 297, 123 A. 208, 210.
Fraudulent concealment justifying a rescission of a con-
tract is the intentional concealment of some fact known to
the party charged, which is material for the party injured
to know to prevent being defrauded; the concealment of a
fact which one is bound to disclose being the equivalent
of an indirect representation that such fact does not exist.
Long v. Martin, Tex.Civ.App., 234 S.W. 91, 94.
To suspend running of limitations, it means employment
of artifice, planned to prevent inquiry or escape investiga-
tion and mislead or hinder acquirement of information dis-
closing a right of action, and acts relied on must be of an
affirmative character and fraudulent.  McNaughton v.
Rockford State Bank, 261 Mich. 265, 246 N.W. 84, 86.
FRAUDULENT CONVERSION. Receiving into
possession money or property of another and
fraudulently withholding, converting, or applying
the same to or for one's own use and benefit, or to
use and benefit of any person other than the one
to whom the money or property belongs. Com-
monwealth v. Mitchneck, 130 Pa.Super. 433, 198 A.
463, 464.
FRAUDULENT CONVEYANCE. A conveyance or
transfer of property, the object of which is to de-
fraud a creditor, or hinder or delay him, or to
put such property beyond his reach. Seymour v.
Wilson, 14 N.Y. 569; Lockyer v. De Hart, 6 N.J.L.
458; Surratt v. Eskridge, 131 Va. 325, 108 S.E.
677, 679; Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130,
61 L.Ed. 419. Conveyance made with intent to
avoid some duty or debt due by or incumbent on
person making transfer. Farmers Elevator Co. v.
Peck, 134 Neb. 305, 278 N.W. 499, 501.
FRAUDULENT CONVEYANCES, STATUTES OF,
OR AGAINST. The name given to two celebrated
English statutes,—the statute 13 Eliz. c. 5, made
perpetual by 29 Eliz. c. 5; and the statute 27 Eliz.
c. 4, made perpetual by 29 Eliz. c. 18.
FRAUDULENT OR DISHONEST ACT. One
which involves bad faith, a breach of honesty, a
want of integrity, or moral turpitude. Hartford
Acc. & Indem. Co. v. Singer, 185 Va. 620, 39 S.E.
2d 505, 507, 508.
FRAUDULENT PREFERENCES. In English law,
every conveyance or transfer of property or
charge thereon made, every judgment made, every
obligation incurred, and every judicial proceeding
taken or suffered by any _person unable to pay
his debts as they become due from his own mon-
eys, in favor of any creditor, with a view of giv-
ing such creditor a preference over other credi-
tors, shall be deemed fraudulent and void if the
debtor become bankrupt within three months. 32
& 33 Vict. c. 71, § 92.
FRAUDULENT REPRESENTATION. A false
statement as to material fact, made with intent
that another rely thereon, which is believed by
other party and on which he relies and by which
he is induced to act and does act to his injury,
and statement is fraudulent if speaker knows
statement to be false or if it is made with utter
disregard of its truth or falsity. Osborne v. Sim-
mons, Mo.App., 23 S.W.2d 1102, 1104.
As basis for law action, establishment of rep-
resentation, falsity, scienter, deception, and injury,
is required. Gray v. Shell Petroleum Corporation,
212 Iowa, 825, 237 N.W. 460, 463.
But a promise made without intent to perform
constitutes "fraudulent representation," which
generally affords ground for rescission. Mitchell
v. Mitchell, 206 N.C. 546, 174 S.E. 447, 448.
FRAUNC, FRAUNCHE, FRAUNKE. See Frank.
FRAUNCHISE. L. Fr. A franchise.
FRAUS. Lat. Fraud. More commonly called, in
the civil law, "dolus," and "dolus malus" (q. v.).
A distinction, however, was sometimes made be-
tween "fraus" and "dolus;" the former being held
to be of the most extensive import. Calvin.
FRAUS DANS LOCUM CONTRACTUI. A misre-
presentation or concealment of some fact that is
material to the contract, and had the truth re-
garding which been known the contract would not
have been made as made, is called a "fraud dans
locum contractui;"  e., a fraud occasioning the
contract, or giving place or occasion for the con-
tract.
FRAUS EST CELARE FRAUDEM. It is a fraud
to conceal a fraud. 1 Vern. 240; 1 Story, Eq. Jur.
§§ 389, 390.
FRAUS EST ODIOSA ET NON PRIESUMENDA.
Fraud is odious, and not to be presumed. Cro.
Car. 550.
FRAUS ET DOLUS NEMINI PATROCINARI
DEBENT. Fraud and deceit should defend or
excuse no man. 3 Coke, 78; Fleta, lib. 1, c. 13, §
15; Id. lib. 6, c. 6, § 5.
FRAUS ET JUS NUNQUAM COHABITANT.
Wing. 680. Fraud and justice never dwell to-
gether.
FRAUS LATET IN GENERALIBUS. Fraud lies
hid in general expressions.
FRAUS LEGIS. Lat. In the civil law, fraud of
law; fraud upon law. See In Fraudem Legis.
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FRAUS MERETUR FRAUDEM. Plowd. 100.
Fraud merits fraud.
FRAXINETUM. In old English law, a wood of
ashes; a place where ashes grow. Co. Litt. 4b;
Shep. Touch. 95.
FRAY. See Affray.
FRECTUM. In old English law, freight. Quoad
frectum navium suarum, as to the freight of his
vessels. Blount.
FREDNITE. In old English law, a liberty to hold
courts and take up the fines for beating and
wounding. To be free from fines. Cowell.
FREDSTOLE. Sanctuaries; seats of peace.
FREDUM. A fine paid for obtaining pardon when
the peace had been broken. Spelman; Blount.
A sum paid the magistrate for protection against
the right of revenge.
FREDWIT, or FREDWITE. k liberty to hold
courts and take up the fines for beating and
wounding. Jacob, Law Dict.
FREE. Not subject to legal constraint of another.
Unconstrained; having power to follow the dic-
tates of his own will. Not subject to the dominion
of another. Not compelled to involuntary servi-
tude. Used in this sense as opposed to "slave."
Not bound to service for a fixed term of years;
in distinction to being bound as an apprentice.
Enjoying full civic rights.
Available to all citizens alike without charge;
.as a free school.
Available for public use without charge or toll;
.as a free bridge.
Not despotic; assuring liberty; defending in-
dividual rights against encroachment by any per-
son or class; instituted by a free people; said of
governments, institutions, etc. Webster.
Certain, and also consistent with an honorable
degree in life; as free services, in the feudal law.
Confined to the person possessing, instead of
being shared with others; as a free fishery.
Not engaged in a war as belligerent or ally;
neutral; as in the maxim, "Free ships make free
goods."
FREE ALMS. The name of a species of tenure.
See Frank-almoigne.
FREE AND CLEAR (and like phrases). The title
to property is said to be "free and clear" when
it is not incumbered by any liens; but it is said
that an agreement to convey land "free and clear"
is satisfied by a conveyance passing a good . title.
Meyer v. Madreperla, 68 N.J.L. 258, 53 A. 477, 96
Am.St.Rep. 536; Smith v. Toth, 61 Ind.App. 42,
111 N.E. 442, 444; Grisso v. MiLsey, 104 Okl. 173,
230 P. 883, 889.
FREE AND EQUAL. As used in a constitutional
provision that election shall be free and equal, the
word "free" means that every one entitled to vote
should have a reasonable opportunity to do so,.
a reasonable manner of doing so, etc., and the
word "equal" means that every vote cast should
have its decisive effect in the selection or choice
to be made at the election. McKinney v. Barker,
180 Ky. 526, 203 S.W. 303, 304, L.R.A.1918E, 581.
The term means that the voter shall not be physi-
cally restrained in the exercise of his right of fran-
chise, by either civil or military authority, and
that every voter shall have the same right as
every other voter. Asher v. Arnett, 280 Ky. 347,
132 S.W.2d 772, 775.
A "free and equal" election is one at which every per-
son entitled to vote may do so if he desires, although it
can hardly be said that, if only a few are prevented from
voting, the election is not free and equal In the constitu-
tional sense. Wallbrecht v. Ingram, 164 Ky. 463, 175 S.W.
1022, 1026.
It is the essence of free elections that the right of suf-
frage be untrammeled and unfettered, and that the ballot
represent and express the electors' own intelligent judg-
ment and conscience, and there can be no "free election"
unless there is freedom of opinion. An election to be free
must be without coercion of any description or any de-
terrent from the elector's exercise of his free will by means
of any intimidation or influence whatever, although there
is no violence or physical coercion. Neelley v. Farr, 61
Colo. 485, 158 P. 458, 467, Ann.Cas.1918A, 23.
FREE-BENCH. A widow's dower out of copy-
holds to which she is entitled by the custom of
some manors. It is regarded as an excrescence
growing out of the husband's interest, and is in-
deed a continuance of his estate. Wharton.
FREE-BORD. In old records, an allowance of
land over and above a certain limit or boundary,
as so much beyond or without a fence. Cowell;
Blount. The right of claiming that quantity.
Termes de la Ley.
FREE BOROUGH MEN. Such great men as did
not engage, like the frank-pledge men, for their
decennier. Jacob.
FREE CHAPEL. In English ecclesiastical law, a
place of worship, so called because not liable to
the visitation of the ordir.ary. It is always of
royal foundation, or founded at least by private
persons to whom the crown has granted the privi-
lege. 1 Burn, Ecc. Law, 298.
FREE COURSE. In admiralty law, a vessel hav-
ing the wind from a favorable quarter is said to
sail on a "free course," or said to be "going free"
when she has a fair (following) wind and her
yards braced in. The Queen Elizabeth, D.C.N.Y.,
100 F. 876.
FREE ELECTION. Where each voter is allowed
to cast his ballot as his own conscience dictates.
Moran v. Bowley, 347 Ill. 148, 179 N.E. 526, 531.
See Free and Equal, supra.
FREE ENTERPRISE. The right to conduct a legi-
timate business for profit. Lafayette Dramatic
Productions v. Ferentz, 305 Mich. 193, 9 N.W.2d 57,
62, 145 A.L.R. 1158.
FREE ENTRY, EGRESS, AND REGRESS. An
expression used to denote that a person has the
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right to go on land again and again as often as
may be reasonably necessary. Thus, in the case
of a tenant entitled to emblements.
FREE FISHERY, See Fishery.
FREE ICE. All ice in navigable streams not in-
cluded within that authorized to be appropriated
is sometimes called "free" ice, and does not belong
to the adjacent riparian owners, but to the per-
son who first appropriates it. Hudson River Ice
Co. v. Brady, 158 App.Div. 142, 142 N.Y.S. 819, 821.
FREE LAW. A term formerly used in England
to designate the freedom of civil rights enjoyed
by freemen. It was liable to forfeiture on con-
viction of treason or an infamous crime. McCaf-
ferty v. Guyer, 59 Pa. 116.
FREE LOVE. Consorting with opposite sex at
pleasure without marriage. Robinson v. Casey,
Tex.Civ.App., 272 S.W. 536, 538.
FREE MEN. Before the Norman Conquest, a
free man might be a man of small estate depend-
ent on a lord. Every man, not himself a lord, was
bound to have a lord or be treated as unworthy
of a free man's right. Among free men there
was a difference in their estimation for Wergild.
See Liber Homo.
FREE ON BOARD. Means that the subject of
sale is to be loaded for shipment without expense
to the buyer. Olsen v. McMaken & Pentzien, 139
Neb. 506, 297 N.W. 830, 832.
FREE PASS. The power of riding over a rail-
road without payment of the customary fare.
Coco v. Oden, 143 La. 718, 79 So. 287, 288, 8 A.L.R.
679; Tripp v. Michigan Cent. R. Co., C.C.A.Mich.,
238 F. 449, 458, L.R.A.1918A, 758.
FREE SCHOOL. Where no charge is made for
tuition. Vincent v. County Board of Education of
Talladega County, 222 Ala. 216, 131 So. 893, 894.
FREE SERVICES. In feudal and old English law,
such feudal services as were not unbecoming the
character of a soldier or a freeman to perform;
as to serve under his lord in the wars, to pay a
sum of money, and the like. 2 Bl.Comm. 60, 61.
FREE SHAREHOLDERS. The free shareholders
of a building and loan association are subscrib-
ers to its capital stock who are not borrowers
from the association. Steinberger v. Independent
B. & S. Ass'n, 84 Md. 625, 36 A. 439.
FREE SHIPS. In international law, ships of a
neutral nation. The phrase "free ships shall make
free goods" is often inserted in treaties, meaning
that goods, even though belonging to an enemy,
shall not be seized or confiscated, if found in neu-
tral ships. Wheat. Int. Law, 507, et seq.
FREE SOCAGE. See Socage.
FREE TENURE. Tenure by free services; free-
hold tenure.
FREE TIME. Period that railroad car may re-
main unloaded before demurrage charges begin
to accrue. Lehigh Valley n. Co. v. Maas & Wald-
stein Co., 102 N.J.L. 332, 131 A. 884; Central of
Georgia Ry. Co. v. Leverette, 34 Ga.App. 304, 129
S.E. 292, 293.
FREE WARREN. See Warren.
FREE WHITE PERSONS. "Free white persons"
referred to in Naturalization Act, as amended by
Act July 14, 1870, has meaning naturally given t&
it when first used in 1 Stat. 103, c. 3, meaning all
persons belonging to the European races then
commonly counted as white, and their descend-
ants, including such descendants in other countries
to which they have emigrated.
It includes all European Jews, more or less intermixed
with peoples of Celtic, Scandinavian, Teutonic, Iberian,
Latin, Greek, and Slavic descent. It includes Magyars,
Lapps, and Finns, and the Basques and Albanians. It in-
cludes the mixed Latin, Celtic-Iberian, and Moorish inhab-
itants of Spain and Portugal, the mixed Greek, Latin,
Phoenician, and North African inhabitants of Sicily, and
the mixed Slav and Tarter inhabitants of South Russia.
It does not mean Caucasian race, Aryan race, or Indo-
European races, nor the mixed Indo-European, Dravidian,
Semitic and Mongolian peoples who inhabit Persia. A.
Syrian of Asiatic birth and descent will not be entitled to
become a naturalized citizen of the United States as being
a free white person. Ex parte Shahid, D.C.S.C., 205 F.
812, 813; United States v. Cartozian, D.C.Or., 6 F.2d 919,
921; Ex parte Dow, D.C.S.C., 211 F. 486, 487; In re En
Sk Song, D.C.Cal., 271 F. 23. Nor a native-born Filipino.
U. S. v. Javier, 22 F.2d 879, 880, 57 App.D.C. 303. Nor a
native of India who belonged to Hindu race. Kharaitf
Ram Samras v. United States, C.C.A.Cal., 125 F.2d 879, 881.
FREE WOMAN OF COLOR. Term, up to the'
time of the Civil War, applied to all persons not
of the white race, including Indians. Sunseri v.
Cassagne, 191 La. 209, 185 So. 1, 4.
FREEDMAN. In Roman law, one who was set
free from a state of bondage; an emancipated
slave. The word is used in the same sense in the.
United States, respecting negroes who were form-
erly slaves. Fairfield v. Lawson, 50 Conn. 513, 47
Am.Rep. 669; Davenport v. Caldwell, 10 S.C. 333.
FREEDOM. The state of being free; liberty;
self-determination; absence of restraint; the op.
posite of slavery.
The power of acting, in the character of a moral
personality, according to the dictates of the will,
without other check, hindrance, or prohibition
than such as may be imposed by just and neces-
sary laws and the duties of social life.
The prevalence, in the government and consti-
tution of a country, of such a system of laws and
institutions as secure civil liberty to the individual
citizen.
FREEDOM OF RELIGION. Embraces the con-
cept of freedom to believe and freedom to act, the
first of which is absolute, but the second of which
remains subject to regulation for protection of so-
ciety. Oney v. Oklahoma City, C.C.A.Okl., 120 F.
2d 861, 865.
FREEDOM OF SPEECH AND OF THE PRESS.
See Liberty.
FREEDOM OF THE CITY, In English law, this
phrase signifies immunity from county juris-
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diction, and the privilege of corporate taxation
and self-government held under a charter from
the crown. This freedom is enjoyed of right, sub-
ject to the provision of the charter, and is often
conferred as an honor on princes and other dis-
tinguished individuals. The freedom of a city
carries the parliamentary franchise. Encyc. Dict.
The rights and privileges possessed by the bur-
gesses or freemen of a municipal corporation un-
der the old English law; now of little importance,
and conferred chiefly as a mark of honor. See 11
Chic. L. J. 357.
The phrase has no place in American law, and as fre-
quently used in addresses of welcome made to organiza-
tions visiting an American city, particularly by mayors,
has no meaning whatever except as an expression of good
will.
The form of the grant made by the city of New York
to Andrew Hamilton of Philadelphia as quoted at large in
13 Law Notes 150.
FREEHOLD. An estate for life or in fee. Inter-
mountain Realty Co. v. Allen, 60 Idaho 228, 90 P.
2d 704, 706, 122 A.L.R. 647.
A "freehold estate" is a right of title to land
Cohn v. Litwin, 311 Ill.App. 55, 35 N.E.2d 410, 413.
An estate in land or other real property, of un-
certain duration; that is, either of inheritance or
which may possibly last for the life of the tenant
at the least, (as distinguished from a leasehold; )
and held by a free tenure, (as distinguished from
copyhold or villeinage.) Nevitt v. Woodburn, 175
Ill. 376, 51 N.E. 593; Railroad Co. v. Hemphill, 35
Miss. 22; Ralston Steel Car Co. v. Ralston, 112
Ohio St. 306, 147 N.E. 513, 516, 39 A.L.R. 334;
Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex.
65, 285 S.W. 593, 596.
An oil and gas lease. Cravens v. Hubble, 375
Ill. 51, 30 N.E.2d 622, 623.
A 99-year lease renewable forever is a "freehold
estate". Baltimore & 0. R. Co. v. Carman, 71 Ohio
App. 508, 50 N.E.2d 358, 359.
Such an interest in lands of frank-tenement as may en-
dure not only during the owner's life, but which is cast
after his death upon the persons who successively represent
him, according to certain rules elsewhere explained. Such
persons are called "heirs," and he whom they thus repre-
sent, the "ancestor." When the interest extends beyond
the ancestor's life, it Is called a "freehold of inheritance,"
and, when it only endures for the ancestor's life, it is a
freehold not of inheritance.
An estate to be a freehold must possess these two qual-
ities ; (1) Immobility, that is, the property must be either
land or some interest issuing out of or annexed to land;
and (2) indeterminate duration, for, if the utmost period of
time to which an estate can endure be fixed and deter-
mined, it cannot be a freehold. Wharton.
Freehold in deed is the real possession of land or tene-
ments in fee, fee-tail, or for life. Freehold in law is the
right to such tenements before entry. The term has also
been applied to those offices which a man holds in fee or
for life. Mozl. & W. Diet. ; 1 Washb. R. P. 71, 637. See
Gage v. Scales, 100 Ill. 221; State v. Ragland, 75 N.C. 12,
L.R. 11 Eq. 454; Liberum Tenementum.
Determinable freeholds are estates for life, which may
determine upon future contingencies before the life for
which they are created expires, as if an estate be granted
to a woman during her widowhood, or to a man until he be
promoted to a benefice. In these and similar cases, when-
ever the contingency happens,—when the widow marries, or
when, the grantee obtains the benefice,—the respective es-
tates are absolutely determined and gone. Yet, while they
subsist, they are reckoned estates for life; because they
may by possibility last for life, if the contingencies upon
which they are to determine do not sooner happen. 2 Bl.
Comm. 121.
Freehold in law is a freehold which has descended to a
man, upon which he may enter at pleasure, but which he
has not entered on. Termes de la Ley.
FREEHOLD LAND SOCIETIES. Societies in Eng-
land designed for the purpose of enabling me-
chanics, artisans, and other workingmen to pur-
chase at the least possible price a piece of free-
hold land of a sufficient yearly value to entitle
the owner to the elective franchise for the county
in which the land is situated. Wharton.
FREEHOLDER. One having title to realty. State
ex rel. Peterson v. City of Fraser, 191 Minn. 427,
254 N.W. 776. Either of inheritance or for life.
Warren v. Chouteau County, 82 Mont. 115, 265 P.
676, 680. Either legal or equitable title. Daniels
v. Fossas, 152 Wash. 516, 278 P. 412, 413.
A person who possesses a freehold estate. Shively v.
Lankford, 174 Mo. 535, 74 S.W. 835. Statutory meaning not
Infrequently differs from common law meaning of the
term. Payne v. Fiscal Court of Carlisle County, 200 Ky.
41, 252 S.W. 127, 129; In re Consolidation of School Dists.
in Blue Earth County, 140 Minn. 475, 168 N.W. 552; Gor-
don v. White, 33 S.D. 234, 145 N.W. 439.
FREEMAN. A person in the possession and en-
joyment of all the civil and political rights ac-
corded to the people under a free government.
In the Roman law, it denoted one who was either born
free or emancipated, and was the opposite of "slave." In
feudal law, it designated an allodial proprietor, as dis-
tinguished from a vassal or feudal tenant. (And so in
Pennsylvania colonial law. Fry's Election Case, 71 Pa. 308,
10 Am.Rep. 698.) In old English law, the word described
a freeholder or tenant by free services; one who was not
a villein. In modern legal phraseology, it is the appella-
tion of a member of a city or borough having the right
of suffrage, or a member of any municipal corporation in-
vested with full civic rights.
FREEMAN'S ROLL. A list of persons admitted
as burgesses or freemen for the purposes of the
rights reserved by the municipal corporation act,
(5 & 6 Wm. IV. c. 76.) Distinguished from the
Burgess Roll. 3 Steph.Comm. 197. The term was
used, in early colonial history, in some of the
American colonies.
FREIGHT. Freight is properly the price or com-
pensation paid for the transportation of goods by
a carrier, at sea, from port to port. The Bill, D.
C.Md., 55 F.Supp. 780, 783. But the term is also
used to denote the hire paid for the carriage of
goods on land from place to place, (usually by a
railroad company, not an express company,) or
on inland streams or lakes. The name is also ap-
plied to the goods or merchandise transported by
any of the above means. Brittan v. Barnaby, 21
How. 533, 16 L.Ed. 177; Christie v. Davis Coal Co.,
D.C.N.Y., 95 F. 837, 838; Paradise v. Sun Mut. Ins.
Co., 6- La.Ann. 596.
The sum agreed on for the hire of a ship, entirely or in
part, for the carriage of goods from one port to another.
13 East, 300. All rewards or compensation paid for the use
of ships. Giles v. Cynthia, 1 Pet.Adm. 206, Fed.Cas.No.
5,424.
The reward, if any, to be paid for its carriage is called
"freightage ;" the person who delivers the freight to the
carrier is called the "consignor ;" and the person to whom
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it is to be delivered is called the "consignee." Civil Code
Cal. § 2110; Comp.Laws N.D.1913, § 6197; Comp.Laws S.D.
1929, § 1119.
Property carried is called "freight." Lyman-
Richey Sand & Gravel Co. v. State, 123 Neb. 674,
243 N.W. 891, 893, 83 A.L.R. 1301.
"Dead freight" is money payable by a person who has
chartered a ship and only partly loaded her, in respect of
the loss of freight caused to the ship-owner by the de-
ficiency of cargo. L.R. 2 H.L. Sc. 128; The Rosemary, C.
C.A.Miss., 277 F. 674, 678.
FREIGHT BOOKING. The making of specific
arrangements for the transportation of goods
by particular vessel in advance of its sailing day.
Iwai & Co., Limited, v. Hercules Powder Co., 162
Ga. 795, 134 S.E. 763, 765.
FREIGHT CAR. A railroad car adapted to the
transportation from one point to another of mov-
able articles of every kind, character, and descrip-
tion, and a box car while so used is at least tem-
porarily a car carrying freight. State v. Jones,
84 W.Va. 85, 99 S.E. 271, 274.
FREIGHT IS THE MOTHER OF WAGES. 2
Show. 283; 3 Kent, Comm. 196. Where a voyage
is broken up by vis major, and no freight earned,
no wages, eo nomine, are due.
FREIGHT THEN PENDING. Earnings of the
voyage. The C. F. Coughlin, D.C.N.Y., 25 F.Supp.
649, 650.
FREIGHT TRAIN. A train that carries freight
alone, having a caboose attached for use of crew.
Arizona Eastern R. Co. v. State, 29 Ariz. 446, 242
P. 870, 871; Mammoth Cave R. Co. v. Common-
wealth, 176 Ky. 747, 197 S.W. 406, 407.
FREIGHTER. In maritime law, the party by
whom a vessel is engaged or chartered; other-
wise called the "charterer." 2 Steph. Comm. 148.
In French law, the owner of a vessel is called the
"freighter" (frëteur); the merchant who hires it
is called the "affreighter" (affrëteur). Emerig.
Tr. des Ass. ch. 11, § 3.
FRENCH POOL. A system of gambling, espe-
cially on horse races, now generally known as
"pari mutuel" (q. v.).
FRENCHMAN. In early times, in English law,
this term was applied to every stranger or "out-
landish" man. Bract. lib. 3, tr. 2, c. 15.
FRENDLESMAN. Sax. An outlaw. So called
because on his outlawry he was denied all help
of friends after certain days. Cowell; Blount.
FRENDWITE. In old English law, a mulct or
fine exacted from him who harbored an outlawed
friend. Cowell; Tomlins.
FRENETICUS. In old English law, a madman,
or person in a frenzy. Fleta, lib. 1, c. 36.
FREOBORGH. A free-surety, or free-pleage.
Spelman. See Frank-Pledge.
FREOLING. (Sax. freoh, free, plus ling, pro-
geny.) A freeman born. Wharton. See Frilingi.
FREQUENT, v. To visit often; to resort to often
or habitually. Green v. State, 109 Ind. 175, 9
N.E. 781; Ex parte Werner, 46 R.I. 1, 124 A.
195, 196.
FREQUENTER. Any person not an employee
who may go in or be in place of employment or
public building under circumstances which render
him other than trespasser. Tomlin v. Chicago,
M., St. P. & P. Ry. Co., 220 Wis. 325, 265 N.W. 72.
FREQVENTIA ACTUS MULTUM OPERATUR.
The frequency of an act effects much. 4 Coke, 78;
Wing. Max. p. 719, max. 192. A continual usage
is of great effect to establish a right.
FRERE. Fr. A brother. Frère eyne, elder broth-
er. Frère puisne, younger brother. Britt. c. 75.
FRESCA. In old records, fresh water, or rain
and land flood.
FRESH. Immediate; recent; following without
any material interval.
FRESH DISSEISIN. By the ancient common
law, where a man had been disseised, he was
allowed to right himself by force, by ejecting the
disseisor from the premises, without resort to law,
provided this was done forthwith, while the dis-
seisin was fresh, (fiagrante disseisina.) Bract.
fol. 162b. No particular time was limited for
doing this, but Bracton suggested it should be
fifteen days. Id. fol. 163. See Britt. cc. 32, 43, 44,
65.
FRESH FINE. In old English law, a fine that
had been levied within a year past. St. Westm.
2, c. 45; Cowell.
FRESH FORCE. Force done within forty days.
Fitzh. Nat. Brev. 7; Old Nat. Brev. 4. The heir
or reversioner in a case of disseisin by fresh force
was allowed a remedy in chancery by bill before
the mayor. Cowell.
FRESH PURSUIT. A pursuit instituted immedi-
ately and with intent to reclaim or recapture,
after an animal escaped, a thief flying with stolen
goods, etc. People v. Pool, 27 Cal. 578; White v.
State, 70 Miss. 253, 11 So. 632.
FRESH SUIT. In old English law, immediate
and unremitting pursuit of an escaping thief.
"Such a present and earnest following of a rob-
ber as never ceases from the time of the robbery
until apprehension." Staundef, P. C.  3, cc.
10, 12; 1 Bl. Comm. 297.
FRESHET. A flood, or overflowing of a river,
by means of rains or melted snow; an inundation.
Stover v. Insurance Co., 3 Phila., Pa., 42; Harris
v. Social Mfg. Co., 9 R.I. 99, 11 Am.Rep. 224.
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FRET. Fr. In French marine law, freight. Ord.
Mar. liv. 3, tit. 3.
FRETER. Fr. In French marine law, to freight
a ship; to let it. Emerig. Tr. des Ass. c. 11, § 3.
FRETEUR. Fr. In French marine law, freighter.
The owner of a ship, who lets it to the merchant.
Emerig. Tr. des Ass. c. 11, § 3.
FRETTUM, FRECTUM. In old English law, the
freight of a ship; freight money. Cowell.
FRETUM. Lat. A strait.
FRETUM BRITANNICUM. The strait between
Dover and Calais.
FRIARS. An order of religious persons, of whom
there were four principal branches, viz.: (1)
Minors, Grey Friars, or Franciscans; (2) August-
ines ; (3) Dominicans, or Black Friars; (4) White
Friars, or Carmelites, from whom the rest de-
scend. Wharton.
FRIBURGH. (Also, Frithborg, Frithborgh, Fri-
borg, Froborg, and Freoburgh.) (Sax.) A kind
of frank-pledge whereby the principal men were
bound for themselves and servants. Fleta, lib.
1, cap. 47. Cowell says it is the same as frank-
pledge.
FRIBUSCULUM. In the civil law, a temporary
separation between husband and wife, caused by
a quarrel or estrangement, but not amounting to
a divorce, because not accompanied with an in-
tention to dissolve the marriage.
FRIDBORG, FRITHBORG. Frank-pledge. Cow-
ell. Security for the peace. Spelman.
FRIMIBURGUS. In old English law, a kind of
frank-pledge, by which the lords or principal men
were made responsible for their dependents or
servants. Bract. fol. 124b.
FRIEND. One favorably disposed. Ned v. Rob-
inson, 181 Okl. 507, 74 P.2d 1156. Varying in de-
gree from greatest intimacy to acquaintance more
or less casual. United States Trust Co. of New-
ark v. Montclair Trust Co., 133 N.J.Eq. 579, 33
A.2d 901, 903.
FRIEND OF THE COURT. See Amicus Curiae.
FRIENDLESS MAN. In old English law, an out-
law; so called because he was denied all help of
friends. Bract. lib. 3, tr. 2, c. 12.
FRIENDLY FIRE. Fire burning in place where
it was intended to burn, although damages may
result. Progress Laundry & Cleaning Co. v. Re-
ciprocal Exchange, Tex.Civ.App., 109 S.W.2d 226,
227.
FRIENDLY SOCIETIES. In English law, asso-
ciations supported by subscription, for the relief
and maintenance of the members, or their wives,
children, relatives, and nominees, in sickness, in-
fancy, advanced age, widowhood, etc. The stat-
utes regulating these societies were consolidated
and amended by St. 38 & 39 Vict. c. 60. Wharton.
FRIENDLY SUIT. A suit brought by a creditor
in chancery against an executor or administrator,
being really a suit by the executor or administra-
tor, in the name of a creditor, against himself,
in order to compel the creditors to take an equal
distribution of the assets. 2 Williams, Ex'rs, 1915.
Also any suit instituted by agreement between
the parties to obtain the opinion of the court upon
some doubtful question in which they are in-
terested.
FRIGIDITY. Impotence. Johnson. The term in
this sense is obsolete. Webster's New Int. Dict.
FRILINGI. Persons of free descent, or freemen
born; the middle class of persons among the
Saxons. Spelman. See Freoling.
FRISCUS. Fresh uncultivated ground. Mon.
Angl. t. 2, p. 56. Fresh; not salt. Reg. Orig. 97.
Recent or new. See Fresh, and subtitles there-
under.
FRISK, v. The running of hands rapidly over
another's person, as distinguished from "search,"
which is to strip and examine contents more par-
ticularly.  Kalwin Business Men's Ass'n v. Mc•
Laughlin, 126 Misc. 698, 214 N.Y.S. 99, 102.
FRITH. Sax. Peace, security, or protection.
This word occurs in many compound terms used in
Anglo-Saxon law.
FRITHBORG. Frank-pledge. Cowell.
FRITHBOTE. A satisfaction or fine, for a breach
of the peace.
FRITHBREACH. The breaking of the peace.
FRITHGAR. The year of jubilee, or of meeting
for peace and friendship.
FRITHGILDA. Guildhall; a company or fra-
ternity for the maintenance of peace and security;
also a fine for breach of the peace. Jacob.
FRITHMAN. A member of a company or fra-
ternity.
FRITHSOCNE. Surety of defense. Jurisdiction
of the peace. The franchise of preserving the
peace. Also spelled "frithsoken."
FRITHSPLOT. A spot or plot of land, encircling
some stone, tree, or well, considered sacred, and
therefore affording sanctuary to criminals.
FRITHSTOOL. The stool of peace. A stool or
chair placed in a church or cathedral, and which
was the symbol and place of sanctuary to those
who fled to it and reached it.
FRIVOLOUS. An answer is "frivolous" where it
appears from bare inspection to be lacking in
legal sufficiency, and, where in any view of the
facts pleaded, it does not present a defense. Nee-
fus v. Neefus, 209 Minn. 495, 296 N.W. 579, 581.
Any pleading is called "frivolous" when it is clear-
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ly insufficient on its face, and does not contro-
vert the material points of the opposite pleading,
and is presumably interposed for mere purposes
of delay or to embarrass the opponent. Erwin
v. Lowery, 64 N.C. 321; Strong v. Sproul, 53 N.Y.
499; Gray v. Gidiere, 4 Strob., S.C., 442; In re
Beam, 93 N.J.Eq. 593, 117 A. 613, 614; Milberg v.
Keuthe, 98 N.J.L. 779, 121 A. 713, 714.
"Frivolous pleas" are those which are so clear.
ly and palpably bad as to require no argument
to convince the court thereof, and which would be
pronounced by the court indicative of bad faith
in the pleader on a mere inspection. U. S. V.
Delaney, D.C.N.J., 8 F.Supp. 224, 227.
A frivolous demurrer has been defined to be
one which is so clearly untenable, or its insuffi-
ciency so manifest upon a bare inspection of the
pleadings, that its character may be determined
without argument or research. Cottrill v. Cram-
er, 40 Wis. 558.
A "frivolous appeal" is one presenting no justi-
ciable question and so readily recognizable as de-
void of merit on face of record that there is little
prospect that it can ever succeed. Treat v. State
ex rel. Mitton, 121 Fla, 509, 163 So. 883.
A sham plea is good on its face, but false in fact; it
may, to all appearances, constitute a perfect defense, but
is a pretense because false and because not pleaded in good.
faith. A frivolous plea may be perfectly true in its allega-
tions, but yet is liable to be stricken out because totally
insufficient in substance. Andrew v. Bandler, Sup., 56 N.Y.
S. 614; Brown v. Jenison, 1 Code R.N.S., N.Y., 157;
Sheets v. Ramer, 125 Minn. 98, 145 N.W. 787. See, further,
Answer.
FRODMORTEL, or FREOMORTEL. An immun-
ity for committing manslaughter. Mon. Angl. t.
1, p. 173.
FROM. Implies a starting point, whether it be
of time, place, or condition; and meaning: Hav-
ing a starting point of motion; noting the point
of departure, origin, withdrawal, etc.; out of,
starting at, as, he traveled "from" New York to
Chicago. Silva v. MacAuley, 135 Cal.App. 249, 26
P.2d 887. Word "from" or "after" an event or day
does not have an absolute and invariable mean-
ing, but each should receive an inclusion or ex-
clusion construction according to intention with
which such word is used. Acme Life Ins. Co. v.
White, Tex.Civ.App., 99 S.W.2d 1059, 1060. Words
"from" and "to," used in contract, may be given
meaning to which reason and sense entitles them,
under circumstances of case. Woodruff v. Adams,
134 Cal.App. 490, 25 P.2d 529.
As to whether the word was to be treated as inclusive or
exclusive of a terminus a quo, whether of time or place, a
critical writer formulated a rule that when referring to a
certain point as a terminus a quo, though in vulgar accepta-
tion it were capable of being taken indifferently, either
inclusively or exclusively, yet in law it has obtained a cer-
tain fixed import and is always taken as exclusive of the
terminus a quo. Powell, Powers 449. It generally ex-
cludes the day to which it relates, but the general rule
will yield to the intent of parties; Kendall v. Kingsley,
120 Mass. 94. The views of Lord Mansfield, in Cowp. 714
(overruling his own decision of three years before, id. 189),
was that it is either exclusive or inclusive according to
context and subject-matter, and the court will construe it
to effectuate the intent of parties and not to destroy it.
Lowman v. Shotkoski, 106 Neb. 540, 184 N.W. 107, 108;
Allen v. Effler, 144 Tenn. 685, 235 S.W. 67, 68; Martin v.
Travelers' Ins. Co., 310 Mo. 411, 276 S.W. 380, 382, 41 A.L.
R. 1372; Piatt v. Flaherty, 96 Kan. 42, 149 P. 734.
As to time, after an examination of authorities, Wash-
ington, J., laid down what he considered the settled prin-
ciples to be deduced from them : (1) When time is corn-
puted from an act done, the day of its performance is in-
cluded; (2) when the words are from the date, if a present
interest is to commence, the day is included, if it is a
terminus from which to impute time the day is excluded;
Pearpoint v. Graham, 4 Wash.C.C. 240, Fed.Cas.No.10,877;
where the latter principle was applied to a lease, as it was
90 in Lord Raym. 84; and to a bond; Lysle v. Williams,
15 S. & R., Pa., 135; and the first proposition has been laid
down with reference to the words "from and after the
passage of this act;" Arnold v. U. S., 9 Cra., U.S., 104, 3
L.Ed. 671; U. S. v. Williams, 1 Paine 261, Fed.Cas.No.
16,723; contra, Lorent v. Ins. Co., 1 Nott. & McC., S.C.,
505. See U. S. v. Heth, 3 Cra., U. S., 399, 2 L. Ed. 479.
From is generally held a word of exclusion ; Wilcox v.
Wood, 9 Wend., N.Y., 346; Ordway v. Remington, 12 R.I.
319, 34 Am.Rep. 646. But a promise made November 1st,
1811, and sued November 1st, 1817, was held barred by
statute of limitation; Presbrey v. Williams, 15 Mass. 193.
Where an act was to be done in a given number of days
from the time of the contract, the day on which the con-
tract was made was included; Brown v. Buzan, 24 Ind. 194;
but if the contract merely says in so may days it means so
many days from the day of date, and that is excluded ;
Blake v. Crowninshield, 9 N.H. 304. A fire policy from one
given date to another includes the last day; whether the
first is included was not decided; L.R. 5 Exch. 296. In
most cases when something is required to be done in a
given time from the day on which an event has happened,
that day is excluded, as in case of proving claims against
the estate of a decedent or insolvent; Weeks v. Hull, 19
Conn. 376, 50 Am.Dec. 249; enrolling deeds, after execu-
tion; Seawell v. Williams, 5 Hayw., Tenn., 283; appeal
from arbitrators, afterward; Browne v. Browne, 3 S. &
R., Pa., 496; issuing a scire facias to revive a judgment,
after entry; Appeal of Green, 6 W. & S., Pa., 327; the
time an execution runs, after its date; Homan v. Liswell,
6 Cow., N.Y., 659; redemption from execution sale; id.
518; allowing appeal from a justice; Ex parte Dean, 2
Cow., N.Y., 605, 14 Am.Dec. 521. The principle is thus
well expressed. When time is to be computed from a
particular day or a particular event, as when an act is to be
performed within a specified period from or after a day
named, that day is excluded and the last day included;
Sheets v. Selden, 2 Wall., U.S., 177, 17 L.Ed. 822. But it
was held that in considering the question of barring a writ
of error, the day of the decree is included; Chiles v.
Smith's Heirs, 13 B.Monr., Ky., 460. Six months from
testator's death allowed a legatee to give security not to
marry, are exclusive of that day; 15 Ves. 248.
Whenever they are used with respect to places it is said
that "from," "to," and "at" are taken inclusively accord-
ing to the subject-matter; Union Pac. R. Co. v. Hall, 91
U.S. 343, 23 L.Ed. 428 (fixing the terminus of a railroad
under an act of congress). From an object to an object in
a deed excludes the terminus referred to; Bonney v. Mor-
rill, 52 Me. 252; State v. Bushey, 84 Me. 459, 24 A. 940.
From place to place means from one place in a town to
another in the same town; Com. v. Inhabitants of Cam-
bridge, 7 Mass. 158; Com. v. Waters, 11 Gray, Mass., 81.
From a street means from any part of it according to cir-
cumstances; City of Pittsburg v. Cluley, 74 Pa. 259. From
a town is not always and indeed is seldom exclusive of the
place named; it generally means from some indefinite
place within the town; Chesapeake & 0. Canal Co. v.
Key, 3 Cra.C.C. 599, 606, Fed.Cas.No.2,649. Authority in a
railroad charter to construct a railroad from a city to
another point gives power to construct the road from any
point within the city; Hazlehurst v. Freeman, 52 Ga. 244;
contra North-Eastern R. Co. v. Payne, 8 Rich.L., S.C., 177.
But from a town to another in an indictment for transpor-
tation of liquor does not charge it as done within the town ;
State v. Bushey, 84 Me. 459, 24 A. 940. To construe rea-
sonably the expression a road from a village to a creek
within the same village, in a statute, requires that it be
taken inclusively; Smith v. Helmer, 7 Barb., N.Y., 416.
Sailing from a port means out of it; U. S. v. La Coste, 2
Mass. 129, Fed.Cas.No.15,548.
Descent from a parent cannot be construed to mean
through a parent, it must be immediate, from tithe person
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designated; Gardner v. Collins, 2 Pet., U.S., 58, 86, 7 L.Ed.
347; but the words from the part of the father include a
descent, either immediately from the father or from any
person in the line of the father; Shippen v. Izard, 1 S. &
R., Pa., 222.
From the loading in a marine policy ordinarily means
that the risk is covered after the goods are on board, but
this meaning may be qualified by any words in the policy
indicating a different intention, 16 East 240; L.R. 7 Q.B.
580, 702.
From day to day, In reference to adjournments, usually
means to the next day but, under a statute authorizing the
adjournment of a sale from day to day, a sale is good if
made by adjournment to a day, certain, which did not
immediately succeed the first, Burns v. Lyon, 4 Watts, Pa.,
36.3. From henceforth in a lease means from the delivery;
5 Co. 1; so also does one from March 25th last past (the
execution being March 25th) ; 4 B. & C. 272; or one from
an impossible date (as February 30th), or no date, but if
it has a sensible date, the word date in other parts of it
means date, not delivery; 4 B. & C. 908.
FROM ONE PLACE TO ANOTHER. From prem-
ises owned by one person to premises owned by
another person in some legal subdivision or from
one legal subdivision to another. Liquor Trans-
portation Cases, 140 Tenn. 582, 205 S.W. 423, 426;
Ready v. State, 155 Tenn. 15, 290 S.W. 28, 29;
State v. White, 111 Kan. 196, 206 P. 903, 904.
FROM PERSON. Includes taking from presence
of person assaulted as well as taking of property
in actual contact with person of one robbed. Peo-
ple v. Kubish, 357 Ill. 531, 192 N.E. 543, 545.
FROM, THROUGH, OR UNDER. The term re-
fers to origin or devolution of property, and un-
less some title to or interest therein has been
derived by assignment or otherwise from party
adverse to decedent's estate, statute barring testi-
mony is inapplicable. In re Iwers' Estate, 225
Iowa 389, 280 N.W. 579, 582.
FROM TIME TO TIME. Occasionally, at inter-
vals, now and then. Spade v. Hawkins, 60 Ind.
App. 388, 110 N.E. 1010, 1012. See From.
FRONT. Forepart, as opposed to the back or
rear. State v. Read, 162 Iowa, 572; 144 N.W. 310,
311; Howland v. Andrus, 81 N.J.Eq. 175, 86 A. 391,
393.
Any side or face of a building Is a front, although the
word is more commonly used to denote the entrance side.
In re McInerney, 47 Wyo. 258, 34 P.2d 35, 43. As applied
to a bare lot, it Is that side of lot towards which, in ordi-
nary circumstances, house, when built, will most likely
face, and very general usage of building houses with their
main entrance toward shorter street line results in common
understanding that this is side intended when front of lot
is referred to. Rhinehart v. Leitch, 107 Conn. 400, 140 A.
763.
FRONT FOOT. As respects assessment, synony-
mous with "abutting foot." Moberly v. Hogan,
131 Mo. 19, 32 S.W. 1014.
The rate of assessment is obtained by having the total
cost of the work divided by the total number of square
feet of paving done under the contract; and the quotient
multiplied by one-half of the number of linear feet in the
width of the pavement opposite the property lines. City of
Crowley v. Police Jury of Acadia Parish, 138 La. 488, 70
So. 487, 488.
FRONT-FOOT RULE. One by which cost of im-
provement is to be apportioned among several
properties in proportion to their frontage on im-
provement and without regard to benefits con-
ferred. Davy v. McNeill, 31 N.M. 7, 240 P. 482,
488.
FRONTAGE, FRONTAGER. Frontage denotes
line of property on street. Smidt v. McKee, 262
N.Y. 373, 186 N.E. 869, 870. Extent of front along
road or street. Tzeses v. Barbahenn, 125 N.J.L.
643, 17 A.2d 539, 540. Space available for erection
of buildings, and does not include cross streets
or space occupied by sidewalk or any ornamental
spaces in plat between sidewalks and curb. Wal-
lace v. Kramer, 296 Mich. 680, 296 N.W. 838, 842.
In English law a frontager is a person owning or occupy-
ing land which abuts on a highway, river, seashore, or the
like. The term is ge rally used with reference to the lia-
bility of frontagers o streets to contribute towards the
expense of paving, drat ing, or other works on the high-
way carried out by a local authority, in proportion to the
frontage of their respective tenements. Sweet.
The term is also in a similar sense in American law, the
expense of local improvements made by municipal corpo-
rations (such as paving, curbing, and sewering) being gen-
erally assessed on abutting property owners in proportion
to the "frontage" of their lots on the street or highway,
and an assessment so levied being called a "frontage assess-
ment." Neenan v. Smith, 50 Mo. 531; Lyon v. Tonawanda,
C.C.N.Y., 98 F. 366; City of Youngstown v. Fishel, 89 Ohio
St. 247, 104 N.E. 141, 143, 50 L.R.A.,N.S., 921, Ann.Cas.
1915D, 1073; Standard Oil Co. of Indiana v. Kamradt, 319
Ill. 51, 149 N.E. 538, 539.
FRONTING AND ABUTTING. Very often,
"fronting" signifies abutting, adjoining, or border-
ing on, depending largely on the context. Rom-
bauer v. Compton Heights Christian Church, 328
Mo. 1, 40 S.W.2d 545, 551. As used in statutes
relating to assessment for improvements, prop-
erty between which and the improvement there
is no intervening land. Oklahoma Ry. Co. v.
Severns Paving Co., 67 Okl. 206, 170 P. 216-218,
10 A.L.R. 157; Flynn v. Chiappari, 191 Cal. 139,
215 P. 682, 686.
FRONTIER. In international law, that portion
of the territory of any country which lies close
along the border line of another country, and so
"fronts" or faces it. The term means something
more than the boundary line itself, and includes a
tract or strip of country, of indefinite extent, con-
tiguous to the line. Stoughton v. Mott, 15 Vt. 169.
FROZEN SNAKE. A term used to impute ingrati-
tude and held libelous, the court taking judicial
notice of its meaning without an innuendo. 12
Ad. & El. 624.
FRUCTUARIUS. Lat. In the civil law, one who
had the usufruct of a thing; i. e., the use of the
fruits, profits, or increase, as of land or animals.
Inst. 2, 1, 36, 38. Bracton applies it to a lessee,
fermor, or farmer of land, or one who held lands
ad firmam, for a farm or term. Bract. fol. 261.
FRUCTUS. Lat. In the civil law, fruit, fruits;
produce; profit or increase; the organic produc-
tions of a thing.
The right to the fruits of a thing belonging to
another.
The compensation which a man receives from
another for the use or enjoyment of a thing, such
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FRUCTUS
as interest or rent. See Mackeld. Rom. Law, §
167; Inst. 2, 1, 35, 37; Dig. 7, 1, 33; Id. 5, 3, 29;
Id. 22, 1, 34.
FRUCTUS AUGENT HAEREDITATEM. The
yearly increase goes to enhance the inheritance.
Dig. 5, 3, 20, 3.
FRUCTUS CIVILES. All revenues and . recom-
penses which, though not fruits, properly speak-
ing, are recognized as such by the law. The term
includes such things as the rents and income of
real property, interest on money loaned, and an-
nuities. Civ.Code La. 1900, art. 545.
FRUCTUS FUNDI. The fruits (produce or yield)
of land.
FRUCTUS INDUSTRIALES. Industrial fruits,
or fruits of industry. Those fruits of a thing,
as of land, which are produced by the labor and
industry of the occupant, as crops of grain; as
distinguished from such as are produced solely
by the powers of nature. Emblements are so
called in the common law. 2 Steph. Comm. 258;
1 Chit. Gen. Pr. 92. Sparrow v. Pond, 49 Minn.
412, 52 N.W. 36, 16 L.R.A. 103, 32 Am.St.Rep. 571;
Twin Falls Bank & Trust Co. v. Weinberg, 44
Idaho 332, 257 P. 31, 33, 54 A.L.R. 1527. Annual
crops obtained by yearly labor and cultivation.
Koerner v. Wilson, 85 Colo. 140, 274 P. 737, 738, 63
A.L.R. 227.
FRUCTUS LEGIS. The fruit of the law, i. e.
execution.
FRUCTUS NATURALES. Those products which
are produced by the powers of nature alone; as
wool, metals, milk, the young of animals. Spar.
row v. Pond, 49 Minn. 412, 52 N.W. 36, 16 L.R.A.
103, 32 Am.St.Rep. 571; Clark v. Strohbeen, 190
Iowa 989, 181 N.W. 430, 433, 13 A.L.R. 1419.
FRUCTUS PECUDUM. The produce or increase
of flocks or herds.
FRUCTUS PENDENTES. Hanging fruits; those
not severed. The fruits united with the thing
which produces them. These form a part of the
principal thing.
FRUCTUS PENDENTES PARS FUNDI VIDEN-
TUR. Hanging fruits make part of the land.
Dig. 6, 1, 44; 2 Bouv. Inst. no. 1578.
FRUCTUS PERCEPTOS VILLAE NON ESSE
CONSTAT. Gathered fruits do not make a part
of the farm. Dig. 19, 1, 17, 1; 2 Bouv. Inst. no.
1578.
FRUCTUS REI ALIENIE. The fruits of anoth-
er's property; fruits taken from another's estate.
FRUCTUS SEPARATI. Separate fruits; the
fruits of a thing when they are separated from
it. Dig. 7, 4, 13.
FRUGES. In the civil law, anything produced
from vines, underwood, chalk-pits, stone-quarries.
Dig. 50, 16, 77.
Grains and leguminous vegetables. In a more
restricted sense, any esculent growing in pods.
Vicat, Voc. Jur.; Calvin.
FRUIT. The produce of a tree or plant which
contains the seed or is used for food. Klas v.
Kuehl, 159 Wis. 561, 150 N.W. 973, 975.
This term, in legal acceptation, is not confined
to the produce of those trees which in popular
language are called "fruit trees," but applies also
to the produce of oak, elm, and walnut trees.
Bullen v. Denning, 5 Barn. & C. 847.
Fruit fallen. The produce of any possession de-
tached therefrom, and capable of being enjoyed
by itself. Thus, a next presentation, when a va-
cancy has occurred, is a fruit fallen from the ad-
vowson. Wharton.
FRUITS, FRUITS OF THE LAND. In replevy
bond, "fruits" includes natural accession to live-
stock. Southern Surety Co. v. Adams, Tex.Civ.
App., 278 S.W. 943, 946. Includes the increase and
the clip of replevied goats and sheep; "offspring"
and "that which is produced." Southern Surety
Co. v. Adams, 119 Tex. 489, 34 S.W.2d 789, 798.
The right of a possessor to "fruits of the land"
does not permit possessor to extract mineral oil
and gas from land. Elder v. Ellerbe, 135 La. 990,
66 So. 337.
Civil fruits, in the civil law, (fructus civiles)
are such things as the rents and income of real
property, the interest on money loaned, and an-
nuities. Civ.Code La. art. 545. Rents and reve-
nues of an immovable. Posey v. Fargo. 187 La.
122, 174 So. 175, 179.
Natural fruits. The produce of the soil, or of
fruit-trees, bushes, vines, etc., which are edible or
otherwise useful or serve for the reproduction of
their species. The term is used in contradistinc-
tion to "artificial fruits," i. e., such as by metaphor
or analogy are likened to the fruits of the earth.
Of the latter, interest on money is an example.
See Civ.Code La. art. 545.
FRUITS OF CRIME. In the law of evidence.
material objects acquired by means and in con-
sequence of the commission of crime, and some-
times constituting the subject-matter of the crime.
Burrill, Circ. Ev. 445; 3 Benth. Jud. Ev. 31.
FRUMENTA QUIE SATA SUNT SOLO CEDERE
INTELLIGUNTUR. Grain which is sown is un-
derstood to form a part of the soil. Inst. 2, 1, 32.
FRUMENTUM. In the civil law, grain. That
which grows in an ear. Dig. 50, 16, 77.
FRUMGYLD. Sax. The first payment made to
the kindred of a slain person in recompense for
his murder. Blount.
FRUCTUS STANTES. Standing fruits; those
not yet severed from the stalk or stem.
FRUMSTOLL. Sax. In Saxon law, a chief seat,
or mansion house. Cowell.
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FUERO
FRUSCA TERRA. In old records, uncultivated
and desert ground. 2 Mon. Angl. 327; Cowell.
FRUSSURA. A breaking; plowing. Cowell.
FRUSTRA. Lat. Without effect, in vain, to no
purpose, uselessly; without reason or cause,
groundlessly; in error. Harpers' Lat. Dict.
FRUSTRA AGIT QUI JUDICIUM PROSEQUI
NEQUIT CUM EFFECTU. He sues to no pur-
pose who cannot prosecute his judgment with ef-
fect, [who cannot have the fruits of his judg-
ment.] Fleta, lib. 6, c. 37, § 9.
FRUSTRA [VANA] EST POTENTIA QUIE NUN-
QUAM VENIT IN ACTUM. That power is to no
purpose which never comes into act, or which is
never exercised. 2 Coke, 51.
FRUSTRA EXPECTATUR EVENTUS CUJUS EF-
FECTUS NULLUS SEQUITUR. An event is vain-
ly expected from which no effect follows.
FRUSTRA FERUNTUR LEGES NISI SUBDITIS
ET OBEDIENTIBUS. Laws are made to no pur-
pose, except for those that are subject and obedi-
ent. Branch, Princ.
FRUSTRA FIT PER PLURA, QUOD FIERI P0-
TEST PER PAUCIORA. That is done to no pur-
pose by many things which can be done by fewer.
Jenk.Cent. p. 68, case 28. The employment of more
means or instruments for effecting a thing than
are necessary is to no purpose.
FRUSTRA LEGIS AUXILIUM INVOCAT
[QUJERIT] QUI IN LEGEM COMMITTIT. He
vainly invokes the aid of the law who trans-
gresses the law. Fleta, lib. 4, c. 2, § 3; 2 Hale,
P.C. 386; Broom, Max. 279, 297.
FRUSTRA PETIS QUOD MOX ES RESTITUR-
US. In vain you ask that which you will have
immediately to restore. 2 Kames, Eq. 104; 5 Man.
& G. 757.
FRUSTRA PETIS QUOD STATIM ALTERI RED-
DERE COGERIS. Jenk.Cent. 256. You ask in
vain that which you might immediately be com-
pelled to restore to another.
FRUSTRA PROBATUR QUOD PROBATUM NON
RELEVAT. That is proved to no purpose which,
when proved, does not help. Halk.Lat.Max. 50.
FRUSTRATION. Where, from nature of contract
and surrounding circumstances, parties from be-
ginning must have known it could not be fulfilled
unless, when time thereof arrived, some particular
condition continued to exist, under doctrine of
"frustration", in absence of warranty that such
condition of things shall exist, contract is to be
construed as subject to implied condition that par-
ties shall be excused in case, before breach, per-
formance becomes impossible or purpose frus-
trated from such condition ceasing to exist with-
out default of either. Johnson v. Atkins, 53 Cal.
App.2d 430, 127 P.2d 1027, 1028, 1029, 1030.
FRUSTRUM TERIVE. A piece or parcel of land
lying by itself. Co.Litt. 5b.
FRUTECTUM. In old records, a place overgrown
with shrubs and bushes. Spelman; Blount.
FRUTOS. In Spanish law, fruits; products; pro-
duce; grains; profits. White, New Recop. b. 1,
tit. 7, c. 5, § 2.
FRYMITH. In old English law, the affording har-
bor and entertainment to any one.
FRYTHE. Sax. In old English law, a plain be-
tween woods. Co.Litt. 5b.
An arm of the sea, or a strait between two,
lands. Cowell.
FUAGE, FOUAGE, or FEUAGE. Hearth money.
A tax laid upon each fire-place or hearth. An im-
position of a shilling for every hearth, levied by
Edward III. in the dukedom of Aquitaine. Spel-
man; 1 Bl.Comm. 324.
FUER. In old English law, flight. It is of two
kinds: (1) Fuer in fait, or in facto, where a per-
son does apparently and corporally flee; (2) fuer
in ley, or in lege, when, being called in the coanty
court, he does not appear, which legal interpreta-
tion makes flight. Wharton.
FUERO. In Spanish law, a law; a code.
A general usage or custom of a province, hav-
ing the force of law. Strother v. Lucas, 12 Pet.
446, 9 L.Ed. 1137. Ir contra fuero, to violate a re-
ceived custom.
A grant of privileges and immunities. Conceder
fueros, to grant exemptions.
A charter granted to a city or town. Also desig-
nated as "cartas pueblas."
An act of donation made to an individual, a
church, or convent, on certain conditions.
A declaration of 'a magistrate, in relation to tax-
ation, fines, etc.
A charter granted by the sovereign, or those
having authority from him, establishing the fran-
chises of towns, cities, etc.
A place where justice is administered.
A peculiar forum, before which a party is amen-
able.
The jurisdiction of a tribunal, which is entitled
to take cognizance of a cause; as fuero ecclesiasti-
co, fuero militar. See Schm.Civil Law, Introd.
64.
FUERO DE CASTILLA. The body of laws and
customs which formerly governed the Castilians.
FUERO DE CORREOS Y CAMINOS. A special
tribunal taking cognizance of all matters relating
to the post-office and roads.
FUERO DE GUERRA. A special tribunal taking
cognizance of all matters in relation to persons
serving in the army.
FUERO DE MARINA. A special tribunal taking
cognizance of all matters relating to the navy and
to the persons employed therein.
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FUERO
FUERO JUZGO. The Forum Judicium; a code of
laws established in the seventh century for the
Visigothic kingdom in Spain. Some of its princi-
ples and rules are found surviving in the modern
jurisprudence of that country. Schm.Civil Law,
Introd. 28.
FUERO MUNICIPAL. The body of laws granted
to a city or town for its government and the ad-
ministration of justice.
FUERO REAL. The title of a code of Spanish law
promulgated by Alphonso the Learned, (el Sabio,)
A.D. 1255. It was the precursor of the Partidas.
Schm.Civil Law, Introd. 67.
FUERO VIEJO. The title of a compilation of
Spanish law, published about A.D. 992. Schm.
Civil Law, Introd. 65.
FUGA CATALLORUM. In old English law. A
drove of cattle. Blount.
FUGACIA. A chase. Blount.
FUGAM FECIT. Lat. He has made flight; he
fled. A clause inserted in an inquisition, in old
English law, meaning that a person indicted for
treason or felony had fled. The effect of this is to
make the party forfeit his goods absolutely, and
the profits of his lands until he has been pardoned
or acquitted.
FUGATOR. In old English law, a privilege to
hunt. Blount.
A driver. Fugatores carrucarum, drivers of
wagons. Fleta, lib. 2, c. 78.
FUGITATE. In Scotch practice, to outlaw by the
sentence of a court; to outlaw for non-appear-
ance in a criminal case. 2 Alis. Crim. Pr. 350.
FUGITATION. When a criminal does not obey
the citation to answer, the court pronounces sen-
tence of fugitation against him, which induces a
forfeiture of goods and chattels to the crown.
FUGITIVE. One who flees; always used in law
with the implication of a flight, evasion, or escape
from some duty or penalty or from the conse-
quences of a misdeed.
FUGITIVE FROM JUSTICE. A person who, hav-
ing committed a crime, flees from jurisdiction of
court where crime was committed or departs from
his usual place of abode and conceals himself
within the district. United States ex rel. Demarois
v. Farrell, C.C.A.Minn., 87 F.2d 957, 960. State v.
Clough, 71 N.H. 594, 53 A. 1086, 67 L.R.A. 946;
People v. Hyatt, 172 N.Y. 176, 64 N.E. 825, 60 L.R.
A. 774, 92 Am.St.Rep. 706.
To be regarded as a "fugitive from justice," it is not
necessary that one shall have left the state for the very
purpose of avoiding prosecution; it being sufficient that,
having committed there an act constituting a crime, he
afterwards has departed from its jurisdiction, and when
sought to be prosecuted is found in another state. Hogan
v. O'Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497; People
ex rel. Gottschalk v. Brown, 237 N.Y. 483, 143 N.E. 653,
654, 32 A.L.R. 1164; State v. Hayes, 162 La. 917, 111 So.
327, 329 (one who did not flee).
No matter for what purpose or with what motive or
under what belief he leaves state, and even though at time
of leaving he had no belief he had violated criminal laws
and did not contemplate fleeing from justice to avoid prose-
cution for crime with which he is charged. Ex parte Mor-
ris, 131 Tex.Cr.R. 596, 101 S.W.2d 259.
FUGITIVE OFFENDERS. In English law, where
a person accused of any offense punishable by im-
prisonment, with hard labor for twelve months
or more, has left that part of his majesty's domin-
ions where the offense is alleged to have been
committed, he is liable, if found in any other part
of his majesty's dominions, to be apprehended
and returned in manner provided by the fugitive
offenders' act, 1881, to the part from which he is a
fugitive. Wharton.
FUGITIVE OIL. Oil escaping from well which
was out of control and flowing down creek to
point 10 or 12 miles below the well where it was
picked up was "fugitive" or "waste oil" and be-
longed to the first taker who might reduce it to
his possession. Linkenhoger v. Brown, Tex.Civ.
App., 128 S.W.2d 163, 164.
FUGITIVE SLAVE. One who, held in bondage,
flees from his master's power.
FUGITIVE SLAVE LAW. An act of congress
passed in 1793 (and also one enacted in 1850) pro-
viding for the surrender and deportation of slaves
who escaped from their masters and fled into the
territory of another state, generally a "free" state.
FUGITIVE'S GOODS. Under the old English Law,
where a man fled for felony, and escaped, his
own goods were not forfeited as bona fugitivorum
until it was found by proceedings of record (e. g.
before the coroner in the case of death) that he
fled for the felony. Foxley's Case, 5 Co. 109 a.
FUGITIVUS. In the civil law, a fugitive; a runa-
way slave. Dig. 11, 4; Cod. 6, 1. See the various
definitions of this word in Dig. 21, 1, 17.
FUGUES. Fr. In medical jurisprudence. Am-
bulatory automatism. See Automatism.
FULL. Abundantly provided, sufficient in quanti-
ty or degree, complete, entire, and detailed. City
of Orlando v. Evans, 132 Fla. 609, 182 So. 264, 268.
Having no open space. In re California Land
Buyers Syndicate, D.C.Cal., 22 F.Supp. 183, 186.
Ample; perfect; mature; not wanting in any es-
sential quality. Mobile School Com'rs v. Putnam,
44 Ala. 537; McCrary v. McCrary, Tex.Civ.App.,
230 S.W. 187, 207.
FULL AGE. The age of legal majority, twenty-
one years at common law, twenty-five in the civil
law. 1 B1.Comm. 463; Inst. 1, 23, pr.
FULL ANSWER. In pleading, a complete and
meritorious answer, not wanting in any essential.
requisite. Frizell v. Northern Trust Co. of Chi-
cago, Ill., 144 Kan. 481, 61 P.2d 1344, 1345, 1346.
FULL BLOOD. Relations of the "full blood,"
"whole blood," or "entire blood" are those derived
not only from the same ancestor, but from the
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FUNCTION
same couple of ancestors. In re Skidmore's Es-
tate, 148 Misc. 569, 266 N.Y.S. 312.
Brothers and sisters of full blood are those who are born
of the same father and mother, or, as Justinian calls them,
"ex utroque parente conjuncti." Nov. 118, cc. 2, 3;
Mackeld.Rom.Law, § 145. The more usual term in modern
law is "whole blood" (q. v.).
FULL COPY. In equity practice, a complete and
unabbreviated transcript of a bill or other plead-
ing, with all indorsements, and including a copy
of all exhibits. Finley v. Hunter, 2 Strob. Eq., S.
C., 210, note.
FULL COURT. In practice, a court in banc. A
court duly organized with all the judges present.
Court containing permissible complement of
judges, as distinguished from a quorum of two.
Textile Mills Securities Corporation v. Commis-
sioner of Internal Revenue, 314 U.S. 326, 62 S.Ct.
272, 277, 86 L.Ed. 249.
FULL COUSIN. Son or daughter of one's uncle
or aunt. Culver v. Union & New Haven Trust Co.,
120 Conn. 97, 179 A. 487, 489, 99 A.L.R. 663.
FULL COVENANTS. See Covenant.
FULL DEFENSE. In pleading, the formula of
defense in a plea, stated at length and without
abbreviation, thus: "And the said C. D., by E. F.,
his attorney, comes and defends the force (or
wrong) and injury when and where it shall be-
hoove him, and the damages, and whatsoever else
he ought to defend, and says," etc. Steph. Pl. p.
481.
FULL FAITH AND CREDIT. "Full faith and
credit" clause of Const. U. S. art. 4, § 1, requires
that foreign judgment be given such faith and
credit as it had by law or usage of state of its
origin. First Nat. Bank v. Terry, 103 Cal.App.
501, 285 P. 336, 337. That foreign statutes are to
have force and effect to which they are entitled
in home state. Flahive v. Missouri, K. & T. R. Co.,
131 Misc. 586, 227 N.Y.S. 587, 588. And that a judg-
ment or record shall have the same faith, credit,
conclusive effect, and obligatory force in other
states as it has by law or usage in the state from
whence taken. Christmas v. Russell, 5 Wall. 302,
18 L.Ed. 475; McElmoyle v. Cohen, 13 Pet. 326,
10 L.Ed. 177; Pennsylvania Fire Ins. Co. of Phila-
dephia v. Gold Issue Min. & Mill. Co., 243 U.S. 93,
37 S.Ct. 344, 61 L.Ed. 610.
FULL HEARING. Embraces not only the right
to present evidence, but also a reasonable oppor-
tunity to know the claims of the opposing party,
and to meet them. Morgan v. U. S., 304 U.S. 1,
58 S.Ct. 773, 776, 777, 82 L.Ed. 1129.
One in which ample opportunity is afforded to all parties
to make, by evidence and argument, a showing fairly ade-
quate to establish the propriety or impropriety from the
standpoint of justice and law of the step asked to be taken.
Akron, C. & Y. Ry. Co. v. U. S., 261 U.S. 184, 43 S.Ct. 270,
67 L.Ed. 605; State v. Hunt, 137 Tenn. 243, 192 S.W. 931,
932.
FULL INDORSEMENT. See Indorsement.
FULL JURISDICTION. Complete jurisdiction
over a given subject-matter or class of actions (as,
in equity) without any exceptions or reservations.
Bank of Mississippi v. Duncan, 52 Miss. 740.
FULL LIFE. Life in fact and in law. See In Full
Life.
FULL-PAID STOCK. Stock on which no further
payments can be demanded by the issuing com-
pany. Middleton v. Wooster, 184 App.Div. 165, 171
N.Y.S. 593, 595.
FULL PARTICULARS. Where contract of in-
surance requires giving "full particulars" of an
accident as a condition precedent to liability, un-
necessary details are not required, but only such
as enables insurer to determine, whether a claim
was likely to be made, and the insured was not
required to make an exhaustive investigation of
all the attendant circumstances or decide what the
facts were on conflicting evidence. Silberstein v.
Vellerman, 241 Mass. 80, 134 N.E. 395, 397.
FULL POWERS. A document issued by the gov-
ernment of a state empowering its diplomatic
agent to conduct special business with a foreign
government.
FULL PROOF. In the civil law, proof by two wit-
nesses, or a public instrument. Hallifax, Civil.
Law, b. 3, c. 9, nn. 25, 30; 3 Bl.Comm. 370. Evi-
dence which satisfies the minds of the jury of the
truth of the fact in dispute, to the entire exclusion
of every reasonable doubt. Kane v. Hibernia Mut.
F. Ins. Co., 38 N.J.L. 450, 20 Am.Rep. 409.
FULL RIGHT. The union of a good title with ac-
tual possession.
FULL SETTLEMENT. Implies an adjustment of
all pending matters, the mutual release of all prior
obligations existing between the parties. Hickox
v. Hickox, Tex.Civ.App., 151 S.W.2d 913, 918.
FULLUM AQUIE. A fleam, or stream of water.
Blount.
FULLY ADMINISTERED. The English equiva-
lent of the Latin phrase "plene administravit;"
being a plea by an executor or administrator that
he has completely and legally disposed of all the
assets of the estate, and has nothing left out of
which a new claim could be satisfied. See Ryans
v. Boogher, 169 Mo. 673, 69 S.W. 1048.
FUMAGE. In old English law, the same as fuage,
or smoke farthings. 1 Bl.Comm. 324. See Fuage.
FUNCTION. Derived from Latin "functus," the
past participle of the verb "fungor" which means
to perform, execute, administer. McNamara v.
Powell, Sup., 52 N.Y.S.2d 515, 551.
The nature and proper action of anything; ac-
tivity appropriate to any business or profession.
Rosenblum v. Anglim, D.C.Cal., 43 F.Supp. 889,
892.
Office; duty; fulfillment of a definite end or
set of ends by the correct adjustment of means.
The occupation of an office. By the performance
of its duties, the officer is said to fill his function.
Black's Law Dictionary Revised 4th Ed.-51
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FUNCTIONAL
Dig. 32, 65, 1. State v. Hyde, 121 Ind. 20, 22 N.E.
644. The proper activities or duties of munici-
pality. Bean v. City of Knoxville, 180 Tenn. 448,
175 S.W.2d 954, 955.
FUNCTIONAL CLAIM. One which claims func-
tion. In re Tucker, Cust. & Pat. App., 46 F.2d 214,
216. See Claim.
FUNCTIONAL DEPRECIATION. Results from
necessary replacement of equipment before it is
worn out, by reason of invention and improved
appliances which render more efficient and satis-
factory service. Guaranty Trust Co. of New York
v. Grand Rapids, G. H. & M. Ry, Co., D.C.Mich., 7
F.Supp. 511, 521,
FUNCTIONAL DISEASE. In medical jurispru-
dence, one which prevents, obstructs, or interferes
with the due performance of its special functions
by any organ of the body, without anatomical de-
fect or abnormality in the organ itself. See Hig-
bee v. Guardian Mut. L. Ins. Co., 66 Barb., N.Y.
472. Distinguished from "organic" disease, which
is due to some injury to, or lesion or malforma-
tion in, the organ in question.
FUNCTIONARY. A public officer or employee.
An officer of a private corporation is also some-
times so called.
Functus officio. Lat. A task performed. Board
of School Trustees of Washington City Adminis-
trative Unit v. Benner, 222 N.C. 566, 24 S.E.2d 259,
263.
Having fulfilled the function, discharged the office, or
accomplished the purpose, and therefore of no further force
or authority. Applied to an officer whose term has expired,
and who has consequently no further official authority;
and also to an instrument, power, agency, etc., which has
fulfilled the purpose of its creation, and is therefore of no
further virtue or effect. Blanton Banking Co. v. Taliaferro,
Tex.Civ.App., 262 S.W. 196.
FUND, v. To capitalize with a view to the pro-
duction of interest. Stephen v. Milnor, 24 N.J.
Eq. 376. Also, to put into the form of bonds,
stocks, or other securities, bearing regular in-
terest, and to provide or appropriate a fund or
permanent revenue for the payment thereof. Mer-
rill v. Monticello, C.C.Ind., 22 F. 596. City of Long
Beach v. Lisenby, 180 Cal. 52, 179 P. 198, 201.
To fund a debt is to pledge a specific fund to
keep down the interest and reduce the principal.
Funded debt. As applied to states or municipal corpo-
rations, a funded debt is one for the payment of which
(interest and principal) some fund is appropriated, either
specifically, or by provision made for future taxation and
the quasi pledging in advance of the public revenue.
Ketchum v. Buffalo, 14 N.Y. 356; People v. Carpenter, 52
N.Y.S. 781, 31 App.Div. 603. As applied to the financial
management of corporations (and sometimes of estates in
course of administration or properties under receivership)
funding means the borrowing of a sufficient sum of money
to discharge a variety of floating or unsecured debts, or
debts evidenced by notes or secured by bonds but maturing
within a short time, and creating a new debt in lieu
thereof, secured by a general mortgage, a series of bonds,
or an issue of stock, generally maturing at a more remote
period, and often at a lower rate of interest. The new debt
thus substituted for the pre-existing debts is called the
"funded debt." Ketchum v. Buffalo, 14 N.Y. 356; Lawrey
v. Sterling, 41 Or. 518, 69 P. 460. This term is very seldom
applied to the debts of a private individual; but when so
used it must be understood as referring to a debt embodied
in securities of a permanent character and to the payment
of which certain property has been applied or . pledged.
Wells v. Wells, Super.N.Y., 24 N.Y.S. 874.
Funding system. The practice of borrowing money to
defray the expenses of government, and creating a "sinking
fund," designed to keep down interest, and to effect the
gradual reduction of the principal debt. Merrill v. Monti-
cello, C.C.Ind., 22 F. 596.
FUND, A generic term and all-embracing as
compared with term "money," etc., which is spe-
cific. Bivins V. State, 47 Ga.App. 391, 170 S.E.
513, 516.
A sum of money set apart for a specific pur-
pose, or available for the payment of debts or
claims. State v. Finney, 141 Kan. 12, 40 P.2d 411,
421.
In its narrower and more usual sense, "fund" signifies
"capital," as opposed to "interest" or "income;" as where
we speak of a corporation funding the arrears of interest
due on its bonds, or the like, meaning that the interest is
capitalized and made to bear interest in its turn until it is
repaid. Sweet.
In the plural, this word has a variety of slight-
ly different meanings, as follows:
Moneys and much more, such as notes, bills,
checks, drafts, stocks and bonds, and in broader
meaning may include property of every kind.
State v. Finney, 141 Kan. 12, 40 P.2d 411, 421.
Money in hand; assets; cash; money available
for the payment of a debt, legacy, etc. Galena
Ins. Co. v. Kupfer, 28 Ill. 335, 81 Am.Dec. 284;
U. S. v. Jenks, D.C.Pa., 264 F. 697, 698; Johnson
v. State, 37 Ga.App. 129, 139 S.E. 118, 119.
The proceeds of sales of real and personal es-
tate, or the proceeds of any other assets convert-
ed into money. Doane v. Insurance Co., 43 N.J.
Eq. 533, 11 A. 739; Illinois Christian Missionary
Soc. v. American Christian Missionary Soc., 277
Ill. 193, 115 N.E. 118, 120.
Corporate stocks or government securities; in
this sense usually spoken of as the "funds."
Assets, securities, bonds, or revenue of a state
or government appropriated for the discharge of
its debts. State v. Hudson, 93 W.Va. 435, 117 S.E.
122, 126; Broadway Bank of St. Louis, Mo., v.
McGee Creek Levee & Drainage Dist., 292 Ill. 560,
127 N.E. 165, 166; State v. Board of Education of
Sharples Village School Dist., 114 Ohio St. 602,
151 N.E. 669, 670.
Current funds. Current money, whatever is receivable
and current by law as money. Henderson v. Farmers' Say.
Bank of Harper, 199 Iowa 496, 202 N.W. 259, 261; Feder v.
Elliott, 198 Iowa 447, 199 N.W. 288, 289, 36 A.L.R. 1353.
General fund. This phrase, in New York, is a collective
designation of all the assets of the state which furnish the
means for the support of government and for defraying the
discretionary appropriations of the legislature. People v.
Orange County Sup'rs, 27 Barb., N.Y., 575, 588. It has also
been used in Delaware in the messages of the governor and
other state papers to distinguish such funds as. are available
in the hands of the state treasurer for general purposes
from assets of a special character, such as the school fund.
General revenue fund. As used in connection with munic-
ipal finances, the usual, ordinary, running, and incidental
expenses of a municipality. Atchison, T. & S. F. Ry. Co.
v. City of Topeka, 95 Kan. 747, 149 P. 697.
No funds. This term denotes a lack of assets or money
for a specific use. It is the return made by a bank to a
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FURIOSITY
check drawn upon it by a person who has no deposit to his
credit there; also by an executor, trustee, etc., who has no
assets for the specific purpose.
Public funds. An untechnical name for (1) the revenue
or money of a government, state, or municipal corporation;
(2) the bonds, stocks, or other securities of a national or
state government. Money, warrants, or bonds, or other
paper having a money value, and belonging to the state, or
to any county, city, incorporated town or school district.
Crawford & Moses' Dig. (Ark.) § 2835; Bank of Blythe-
ville v. State, 148 Ark. 504, 230 S.W. 550, 553. The term
applies to funds of every political subdivision of state
wherein taxes are levied for public purposes. JEtna Casu-
alty & Surety Co. v. Bramwell, D.C.Or., 12 F.2d 307, 309.
Revolving fund. Usually, a renewable credit over a
defined period. In simple parlance it relates usually to a
situation where a banker or merchant extends credit for a
certain amount which can be paid off from time to time and
then credit is again given not to exceed the same amount.
It may also mean a fund, which, when reduced, is replen-
ished by new funds from specified sources. U. S. v. Butter-
worth-Judson Corporation, C.C.A.N.Y., 297 F. 971, 979.
Sinking fund. The aggregate of sums of money (as those
arising from particular taxes or sources of revenue) set
apart and invested, usually at fixed intervals, for the extin-
guishment of the debt of ,a government or corporation, by
the accumulation of interest. Elser v. Ft. Worth, Tex.Civ.
App., 27 S.W. 740; Brooke v. Philadelphia, 162 Pa. 123, 29
A. 387, 24 L.R.A. 781. A fund arising from particular
taxes, imposts, or duties, which is appropriated towards the
payment of the interest due on a public loan and for the
gradual payment of the principal. Union Pac. R. Co. v.
Buffalo Co., 9 Neb. 453, 4 N.W. 53; Sidney Spitzer & Co. v.
Commissioners of Franklin County, 188 N.C. 30, 123 S.E.
636, 639. A fund created for extinguishing or paying a
funded debt. Ketchum v. Buffalo, 14 N.Y. 379, cited in
Chicago & I. R. Co. v. Pyne, C.C.N.Y., 30 F. 89.
Sinking fund tax. A tax raised to be applied to the pay-
ment of interest on, and principal of public loan. Sidney
Spitzer & Co. v. Commissioners of Franklin County, 188
N.C. 30, 123 S.E. 636, 639; Union Pac. R. Co. v. York
County, 10 Neb. 612, 7 N.W. 270.
FUNDAMENTAL ERROR. See Error.
FUNDAMENTAL LAW. The law which deter-
mines the constitution of government in a state,
and prescribes and regulates the manner of its
exercise; the organic law of a state; the consti-
tution.
FUNDAMUS. We found. One of the words by
which a corporation may be created in England.
1 Bl.Comm. 473; 3 Steph.Comm. 173.
FUNDATIO. Lat. A founding or foundation.
Particularly applied to the creation and endow-
ment of corporations.
As applied to eleemosynary corporations such as colleges
and hospitals, it is said that "fundatio incipiens" is the
incorporation or grant of corporate powers, while "funda-
tio perficiens" is the endowment or grant or gift of funds
or revenues. Dartmouth College v. Woodward, 4 Wheat.
667, 4 L. Ed. 629.
FUNDATOR. A founder (q. v.).
FUNDI PATRIMONIALES. Lands of inherit-
ance.
FUNDI PUBLIC!. Public lands.
FUNDITORES. Pioneers. Jacob.
FUNDUS. In the civil and old English law, land;
land or ground generally; land, without consid-
ering its specific use; land, including buildings
generally; a farm.
FUNERAL EXPENSES. Money expended in pro-
curing the interment, cremation, or other disposi-
tion of a corpse, including suitable monument, per-
petual care of burial lot and entertainment of
those participating in wake. Gooch v. Beasley,
137 Tenn. 407, 193 S.W. 132, 133; Nelson v. Schoon-
over, 89 Kan. 388, 131 P. 147, 149; In re Bor-
chardt's Will, 184 Wis. 561, 200 N.W. 461, 464;
Oster's Ex'r v. Ohlman, 187 Ky. 341, 219 S.W. 187,
190; In re Gilchrist's Estate, 110 N.J.Eq. 666, 128
A. 876.
FUNGIBLE THINGS. Movable goods which may
be estimated and replaced according to weight,
measure, and number. Things belonging to a
class, which do not have to be dealt with in specie.
Standard Bank of Canada v. Lowman, D.C.Wash.,
1 F.2d 935, 940; Edwards v. Cleveland Mill & Pow-
er Co., 193 N.C. 780, 138 S.E. 131, 134, 53 A.L.R.
1404.
Those things one specimen of which is as good as
another, as is the case with half-crowns, or pounds of rice
of the same quality. Horses, slaves, and so forth, are non-
fungible things, because they differ individually in value,
and cannot be exchanged indifferently one for another.
Holl.Jur. 88.
Where a thing which is the subject of an obligation
(which one man is bound to deliver to another) must be
delivered in specie, the thing is not fungible; that very
individual thing, and not another thing of the same or
another class, in lieu of it, must be delivered. Where the
subject of the obligation is a thing of a given class, the
thing is said to be fungible; i. e., the delivery of any
object which answers to the generic description will satisfy
the terms of the obligation. Aust.Jur. 483, 484.
FUNGIBILES RES. Lat. In the civil law, fungi-
ble things. See that title.
FUR. Lat. A thief. One who stole secretly or
without force or weapons, as opposed to robber.
FUR MANIFESTUS. In the civil law, a manifest
thief. A thief who is taken in the very act of
stealing.
FURANDI ANIMUS. Lat. An intention of steal-
ing.
FURCA. In old English law, a fork. A gallows
or gibbet. Bract. fol. 56.
FURCA ET FLAGELLUM. Gallows and whip.
Tenure ad furcam et flagellum, tenure by gallows
and whip. The meanest of servile tenures, where
the bondman was at the disposal of his lord for
life and limb. Cowell.
FURCA ET FOSSA. Gallows and pit, or pit and
gallows. A term used in ancient charters to sig-
nify a jurisdiction of punishing thieves, viz., men
by hanging, women by drowning. Spelman;
Cowell.
FURIAN LAW. See Lex Furia Caninia.
FURIGELDUM. A fine or mulct paid for theft.
FURIOSI NULLA VOLUNTAS EST. A madman
has no will. Dig. 50, 17, 40; Broom, Max. 314.
FURIOSITY. In Scotch law, madness, as distin-
guished from 'fatuity or idiocy.
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FURIOSUS
FURIOSUS. Lat. An insane man; a madman; a
lunatic.
FURIOSUS ABSENTIS LQCO EST. A madman
is the same with an absent person, [that is, his
presence is of no effect.] Dig. 50, 17, 24, 1.
FURIOSUS NULLUM NEGOTIUM CONTRA..
HERE POTEST. A madman can contract noth-
ing, [can make no contract]. Dig. 50, 17, 5.
FURIOSUS SOLO FURORE PUNITUR. A mad-
man is punished by his madness alone; that is,
he is not answerable or punishable for his actions.
Co.Litt. 247b; 4 Bl.Comm. 24, 396; Broom, Max.
15.
FURIOSUS STIPULARE NON POTEST NEC
ALIQUID NEGOTIUM AGERE, QUI NON IN-
TELLIGIT QUID AGIT. 4 Coke, 126. A madman
who knows not what he does cannot make a bar-
gain, nor transact any business.
FURLINGUS. A furlong, or a furrow one-eighth
part of a mile long. Co.Litt. 5b.
FURLONG. A measure of length, being forty
poles, or one-eighth of a mile.
FURLOUGH. A leave of absence. Smith v. Sov-
ereign Camp, W. 0. W., 204 S.C. 193, 28 S.E.2d
808, 811. A temporary leave of absence to one in
the armed service of the country, or to a govern-
ment official or an employee, indicating some vol-
untary act on part of employee as contrasted with
the phrase "lay-off" which contemplates action by
employer. Jones v. Metropolitan Life Ins. Co.,
156 Pa.Super. 156, 39 A.2d 721, 725. Also the docu-
ment granting leave of absence.
In United States army furloughs are given only to
enlisted men, officers being given leaves of absence. In
United States navy furlough is an extended leave of
absence, or a suspension from duty by an executive order,
on half leave-of-absence pay, given only to an officer. A
permit or passport. As a transitive verb, it means "to
grant a furlough to; broadly, to allow leave of absence
to." Ex parte Roach, D.C.Ala., 244 F. 625, 628.
FURNAGE. See Fornagium; Four.
FURNISH. To supply or provide. Talbott v.
Caudill, 58 S.W.2d 385, 248 Ky. 146. For use in
the accomplishment of a particular purpose. Wil-
liam M. Graham Oil & Gas Co. v. Oil Well Supply
Co., 128 Okl. 201, 264 P. 591, 599. Implying some
degree of active effort to accomplish the designat-
ed end. In re Opinion of the Justices, Mass., 304
Mass. 172, 14 N.E.2d 392, 393, 115 A.L.R. 1158. To
provide for, to provide what is necessary for, to
give, or afford. Juno v. Northland Elevator Co.,
56 N.D. 223, 216 N.W. 562, 563. Equip synony-
mous. State ex rel. Davis v. Barber, 139 Fla. 706,
190 So. 809. To deliver, whether gratuitously or
otherwise. Delp v. Brewing Co., 123 Pa. 42, 15
A. 871; Wyatt v. Larimer & W. Irr. Co., 1 Colo.
App. 480, 29 P. 906. As used in the liquor laws,
"furnish" means to provide in any way, and in-
cludes giving as well as selling. State v. Free-
man, 27 Vt. 520; State v. Tague, 76 Vt. 118, 56 A.
535; Creel v. U. S., C.C.A.Okl., 21 F.2d 690; In
re American Lime Co., D.C.Tenn., 201 F. 433, 434.
To supply or provide in any way other than by
sale. State v. McDermott, 108 Vt. '58, 182 A. 191.
192.
FURNITURE. This term includes that which fur-
nishes, or with which anything is furnished or
supplied; whatever must be supplied to a house,
a room, place of business, or public building or the
like, to make it habitable, convenient, or agree-
able; goods, vessels, utensils, and other append-
ages necessary or convenient for housekeeping;
whatever is added to the interior of a house or
apartment, for use or convenience. Bell v. Gold-
ing, 27 Ind. 173; C. Ludwig Baumann & Co.,
Brooklyn, v. Manwit Corporation, 213 App.Div.
300, 207 N.Y.S. 437, 439; Fire Ass'n of Philadelphia
v. Powell, Tex.Civ.App., 188 S.W. 47, 49; Smalley
v. Dent County, Mo.Sup., 177 S.W. 620, 623.
The word comprehends only such furniture as is intended
for use and ornament of apartments, but not libraries
which happen to be there, nor plate. Civ.Code La. art.
477.
The term embraces everything about the house that has
been usually enjoyed therewith, including plate, linen,
china, and pictures, rugs, draperies and furnishings. Endi-
cott v. Endicott, 41 N.J.Eq. 96, 3 A. 157; In re Kathan's
Estate, 153 N.Y.S. 366, 368, 90 Misc.Rep. 540; Peckham v.
Peckham, 97 N.J.Eq. 174, 127 A. 93. Readily movable ar-
ticles which would be serviceable generally as household
furniture. Farm & Home Savings & Loan Ass'n of Mis-
souri v. Empire Furniture Co., Tex.Civ.App., 87 S.W.2d
1111, 1112.
Household furniture includes all personal chattels that
may contribute to the use or convenience of the house-
holder, or the ornament of the house; as plate, linen,
china, both useful and ornamental, and pictures. But goods
in trade, books, and wines will not pass by a bequest of
household furniture. 1 Rop.Leg. 203.
FURNITURE OF A SHIP. This term includes
everything with which a ship requires to be fur-
nished or equipped to make her seaworthy; it
comprehends all articles furnished by ship chand-
lers, which are almost innumerable. Weaver v.
The S. G. Owens, 1 Wall.Jr. 369, Fed.Cas.No.17,310.
FURNIVAL'S INN. Formerly an inn of chan-
cery. See Inns of Chancery.
FUROR BREVIS. A sudden transport of passion.
Mosby v. Commonwealth, 168 Va. 688, 190 S.E.
152, 155.
FUROR CONTRAHI MATRIMONIUM NON SIN..
IT, QUIA CONSENSU OPUS EST. Insanity pre-
vents marriage from being contracted, because
consent is needed. Dig. 23, 2, 16, 2; 1 Ves. & B.
140; 1 Bl.Comm. 439; Wightman v. Wightman, 4
Johns.Ch., N.Y., 343, 345.
FURST AND FONDUNG. In old English law,
time to advise or take counsel. Jacob:
FURTA. A right derived from the king as su-
preme lord of a state to try, condemn, and exe-
cute thieves and felons within certain bounds or
districts of an honour, manor, etc. Cowell seems
to be doubtful whether this word should not read
furca, which means directly a gallows. Cowell;
Holthouse, L.Dict.
FURTHER. Not word of strict legal or technica2
import, and may be used to introduce negation
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FUSEL
or qualification of some precedent matter, but
generally when used as an adverb it is word of
comparison, and means "additional," and is equiv-
alent to "moreover, or furthermore, something be-
yond what has been said or likewise, or also."
Hollman v. Hollman, 88 Cal.App. 748, 264 P. 289,
290. Wider, or fuller, or something new. In re
Andrus' Will, 156 Misc. 268, 281 N.Y.S. 831. Occa-
sionally it may mean any, future, or other. Lon-
don & S. F. Bank v. Parrott, 125 Cal. 472, 58 P.
164, 73 Am.St.Rep. 64; Galpin v. City of Chicago,
269 Ill. 27, 109 N.E. 713, 717, L.R.A.1917B, 176;
Smith v. Craig, 211 N.Y. 456, 105 N.E. 798, 800,
Ann.Cas.1915B, 937.
FURTHER ADVANCE. A second or subsequent
loan of money to a mortgagor by a mortgagee,
either upon the same security as the original loan
was advanced upon, or an additional security.
Equity considers the arrears of interest on a mort-
gage security converted into principal, by agree-
ment between the parties, as a further advance.
Wharton.
FURTHER ASSURANCE, COVENANT FOR.
See Covenant.
FURTHER CONSIDERATION. In English prac-
tice, upon a motion for judgment or application
for a new trial, the court may, if it shall be of
opinion that it has not sufficient materials before
it to enable it to give judgment, direct the motion
to stand over for further consideration, and di-
rect such issues or questions to be tried or de-
termined, and such accounts and inquiries to be
taken and made, as it may think fit. Rules Sup.
Ct. xl, 10.
FURTHER DIRECTIONS. Where a master made
a separate report, or one not in pursuance of a
decree or decretal order, a petition for consequen-
tial directions had to be presented, since the cause
could not be set down for further directions under
such circumstances. See 2 Daniell, Ch.Pr. (5th
Ed.) 1233, note.
FURTHER HEARING, or FURTHER PROCEED-
INGS. In practice, hearing at another time; new
trial; or other proceedings directed by appellate
court. C. W. Hunt Co. v. Boston Elevated Ry.
Co., 217 Mass. 319, 104 N.E. 728, 729; Morgan Es-
gineering Co. v. Cache River Drainage Dist., 122
Ark. 491, 184 S.W. 57, 59. Not a new proceeding
but rather a continuation of an existing proceed-
ing. In re Mills' Estate, 171 Misc. 42, 11 N.Y.S.2d
929, 932.
FURTHER INSTRUCTIONS. Additional instruc-
tions given to jury after they have once been in-
structed and have retired. White v. Sharpe, 219
Mass. 393, 107 N.E. 56.
FURTHER MAINTENANCE OF ACTION, PLEA
TO. A plea grounded upon some fact or facts
which have arisen since the commencement of the
suit, and which the defendant puts forward for
the purpose of showing that the plaintiff should
not further maintain his action. Brown.
FURTHERANCE. Act of furthering, helping
forward, promotion, advancement, or progress.
Maryland Casualty Co. v. Smith, Tex.Civ.App., 40
S.W.2d 913, 914.
FURTHERANCE OF BUSINESS OF EMPLOY-
ER. Discharge of duties of employment, as re-
spects employer's liability for employees' torts.
West v. F. W. Woolworth Co., 215 N.C. 211, 1 S.E.
2d 546, 548.
FURTIVE. In old English law, stealthily; by
stealth. Fleta, lib. 1, c. 38, § 3.
FURTUM. Lat. Theft. The fraudulent appro-
priation to one's self of the property of another,
with an intention to commit theft without the
consent of the owner. Fleta, L 1, c. 36; Bract.
fol. 150; 3 Inst. 107.
The thing which has been stolen. Bract. fol.
151.
FURTUM CONCEPTUM. In Roman law, the
theft which was disclosed where, upon searching
any one in the presence of witnesses in due form,
the thing stolen was discovered in his possession.
FURTUM EST CONTRECTATIO REI ALLENZE
FRAUDULENTA, CUM ANIMO FURANDI, IN-
VITO ILLO DOMINO CUJUS RES ILLA FUER-
AT. 3 Inst. 107. Theft is the fraudulent handling
of another's property, with an intention of steal-
ing, against the will of the proprietor, whose prop-
erty it was.
FURTUM GRAVE. In Scotch law, an aggravated
degree of theft, anciently punished with death. It
still remains an open point what amount of value
raises the theft to this serious denomination. 1
Broun, 352, note. See 1 Swint. 467.
FURTUM MANIFESTUM. Open theft. Theft
where a thief is caught with the property in his
possession. Bract. fol. 150b.
FURTUM NON EST UBI INITIUM HABET DE-
TENTIONIS PER DOMINIUM REI. 3 Inst. 107.
There is no theft where the foundation of the de-
tention is based upon ownership of the thing.
FURTUM OBLATUM. In the civil law, offered
theft. Oblatum furtum dicitur cum res furtiva
ab aliquo tibi oblata sit, eaque apud to concepta
sit. Theft is called "oblatum" when a thing stol-
en is offered to you by any one, and found upon
you. Inst. 4, 1, 4.
FUSE PLUG LEVEES. Under Mississippi Flood
Control Act lower points for possible flood spill-
ways were designated "fuse plug levees." U. S. v.
Sponenbarger, Ark., 308 U.S. 256, 60 S.Ct. 225, 227,
84 L.Ed. 230.
FUSEL OIL. A volatile oily liquid obtained in
the rectification of spirituous liquors made from
the fermentation of grain, potatoes, the mart of
grapes, and other material; its chief constituent
being amyl alcohol, a direct nerve poison. Cal-
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FUST
kins v. National Travelers' Ben. Ass'n of Des
Moines, 200 Iowa 60, 204 N.W. 406, 407, 41 A.L.R.
363.
FUST. See Fuz.
FUSTIGATIO. In old English law, a beating with
sticks or clubs; one of the ancient kinds of pun-
ishment of malefactors. Bract. fol. 104b, lib. 3,
tr. 1, c. 6.
FUSTIS. In old English law, a staff, used in mak-
ing livery of seisin. Bract. fol. 40.
A baton, club, or cudgel.
FUTHWITE, or FITHWITE. A fine for fighting
or breaking the peace. Cowell; Cun.L.Dict.
FUTURE ACQUIRED PROPERTY. Mortgages,
especially of railroad companies are frequently
made in terms to cover after-acquired property;
such as rolling stock, etc. Philadelphia, W. & B.
R. Co. v. Woelpper, 64 Pa. 366, 3 Am.Rep. 596;
Shaw v. Bill, 95 U.S. 10, 24 L.Ed. 333; L.R. 16 Eq.
383. This may include future net earnings; Dun-
ham v. Isett, 15 Iowa 284; the proceeds to be re-
ceived from the sale of surplus lands; L.R. 2 Ch.
201; a ditch or flume in process of construction,
which was held to cover all improvements and
fixtures thereafter to be put on the line thereof;
De Arguello v. Greer, 26 Cal. 620; rolling stock
etc.; Philadelphia, W. & B. R. Co. v. Woelpper,
64 Pa. 366, 3 Am.Rep. 596; Benjamin v. R. Co.,
49 Barb., N.Y., 441. Future calls of assessments
on stock cannot be mortgaged; L.R. 10 Eq. 681;
but calls already made can be; id.
A will speaks as of the death of the testator
and ordinarily passes property acquired after its
date.
FUTURE DEBT. In Scotch law, a debt which is
created, but which will not become due till a fu-
ture day. 1 Bell, Comm. 315.
FUTURE EARNINGS. A convenient way of des-
ignating earnings which, if it had not been for in-
jury, could have been made in future, but which
were lost as result of injury. Nowlin v. Kansas
City Public Service Co., Mo.App., 58 S.W.2d 324.
FUTURE ESTATE. See Estate.
FUTURE INTERESTS. Interests In land or oth-
er things in which the privilege of possession or
of enjoyment is future and not present. Commis-
sioner of Internal Revenue v. Wells, C.C.A.6, 132
F.2d 405, 407.
FUTURES. This term has grown out of those
purely speculative transactions, in which there is
a nominal contract of sale for future delivery, but
where in fact none is ever intended or executed.
The nominal seller does not have or expect to have the
stock or merchandise he purports to sell, nor does the
nominal buyer expect to receive it or to pay the price.
Instead of that, a percentage or margin is paid, which is
increased or diminished as the market rates go up or down,
and accounted for to the buyer. King v. Quidnick Co., 14
R.I. 138; Lemonius v. Mayer, 71 Miss. 514, 14 So. 33;
Plank v. Jackson, 128 Ind. 424, 26 N.E. 568; S. M. Weld &
Co. v. Austin, 107 Miss. 279, 65 So. 247, 248.
FUTURI. Lat. Those who are to be. Part of
the commencement of old deeds. "Sciant prces-
entes et futuri, quod ego talis, dedi et concessi,"
etc., (Let all men now living and to come know
that I, A. B., have, etc.) Bract. fol. 34b.
FUZ, or FUST. A Celtic word, meaning a wood
or forest.
F. W. C. Free Woman of Color, up to the time
of Civil War, applied to all persons not of the
white race, including Indians. Sunseri v. Cas-
sagne, 191 La. 209, 185 So. 1, 4.
FYHTWITE. One of the fines incurred for homi-
cide.
FYKE. A fish-trap consisting of several succes-
sive conical nets with widestretched mouths. Mit-
chell v. Curtis, 135 Or. 595, 296 P. 1078. A bow-
net for catching fish. Pub.St.Mass.1882, p. 1291.
Cf. Pound Net.
FYLE. In old Scotch law, to defile; to declare
foul or defiled. Hence, to find a prisoner guilty.
FYLIT. In old Scotch practice, fyled; found guil-
ty. See Fyle.
FYNDERINGA. (Sax.) An offense or trespass
for which the fine or compensation was reserved
to the king's pleasure. Leges Hen. L c. 10. Its
nature is not known. Spelman reads fynderinga,
and interprets it treasure trove; but Cowell reads
fyrderinga, and interprets it a joining of the
king's fird or host, a neglect to do which was pun-
ished by a fine called firdwite. See Spelman,
Gloss. Du Cange agrees with Cowell.
FYRD. Sax. In Anglo-Saxon law, the military
array or land force of the whole country. Con-
tribution to the fyrd was one of the imposts form-
ing the trinoda necessitas. (Also spelled "ferd"
and "fird.")
FYRDFARE. A summoning forth to join a mili-
tary expedition; a summons to join the fyrd or
army.
FYRDSOCNE, (or fyrdsoken.) Exemption from
military duty; exemption from service in the
fyrd.
FYRDWITE. A fine imposed for neglecting to
join the fyrd when summoned. Also a fine im-
posed for murder committed in the army; also
an acquittance of such fine.
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GALE
G
G. In the Law French orthography, this letter
is often substituted for the English W, particu-
larly as an initial. Thus, "gage" for "wage,"
"garranty" for "warranty," "gast" for "waste."
G. A. O. General Accounting Office.
G. S. A. General Services Administration.
GABEL. An excise; a tax on movables; a rent,
custom, or service. Co.Litt. 142a, 213.
A tax, impost, or excise duty, especially in continental
Europe; formerly, in France, specifically the tax on salt,
but also applied to taxes on other industrial products.
"The gabels of Naples are very high on oil, wine, tobacco
* * s ." Cent. Dict.
—Land Gabel. See Land Gabel.
GABELLA. The Law Latin form of "gabel,"
(q. v.).
Also, in .Teutonic and early English history, the peasant-
ry constituting a village or hamlet; the holdings of such
a group of freemen and serfs, or of either. The orig-
inal significance of the word seems to be in its indica-
tion of a small rent-paying community, the rents being
rendered in kind or in labor. Cent. Dict. "So that GabeIta
meant all the member of a family having an interest in
a certain holding, and sometimes meant the holding itself."
W. K. Sullivan.
GABLATORES. Persons who paid gabel, rent, or
tribute. Domesday; Cowell.
GABLUM. A rent; a tax. Domesday; Du Cange.
The gable-end of a house. Cowell.
GABULUS DENARIORUM. Rent paid in money.
Seld.Tit.Hon. 321.
GADSDEN PURCHASE. A term commonly ap-
plied to the territory acquired by the United States
from Mexico by treaty of December 30, 1853,
known as the Gadsden Treaty.
GAFFOLDGILD. The payment of custom or trib-
ute. Scott.
GAFFOLDLAND. Property subject to the gaffold-
gild, or liable to be taxed. Scott.
GAFOL. The same word as "gabel" or "gavel."
Rent; tax; interest of money.
GAGE, v. In old English law, to pawn or pledge;
to give as security for a payment or performance;
to wage or wager.
GAGE, n.
In old English law, a pawn or pledge; some-
thing deposited as security for the performance
of some act or the payment of money, and to
be forfeited on failure or non-performance. Glanv.
lib. 10, c. 6; Britt. c. 27.
A mortgage is a dead-gage or pledge; for, what-
soever profit it yields, it redeems not itself, unless
the whole amount secured is paid at the appointed
time. Cowell.
In French law, the contract of pledge or pawn;
also the article pawned.
Gage, estates in. Those held in vadio, or pledge.
They are of two kinds: (1) Vivum vadium, or liv-
ing pledge, or vifgage; (2) mortuum vadium, or
dead pledge, better known as "mortgage."
GAGER DE DELIVERANCE. In old English law,
when he who has distrained, being sued, has not
delivered the cattle distrained, then he shall not
only avow the distress, but gager deliverance, i. e.,
put in surety or pledge that he will deliver them.
Fitzh.Nat.Brev.
GAGER DEL LEY. Wager of law (q. v.).
GAIN. Profits; winnings; increment of value.
Gray v. Darlington, 15 Wall. 65, 21 L.Ed. 45; Thorn
v. De Breteuil, 86 App.Div. 405, 83 N.Y.S. 849.
Difference between receipts and expenditures; pe-
cuniary gain. Stanton v. Zercher, 101 Wash. 383,
172 P. 559, 562; Rooney v. City of Omaha, 105 Neb.
447, 181 N.W. 143, 145. Difference between cost
and sale price. Weil v. State, 237 Ala. 293, 186
So. 467, 469.
"Gain derived from capital," is a gain, profit, or some-
thing of exchangeable value proceeding from the property,
severed from the capital however invested, and received or
drawn by claimant for his separate use, benefit, and dis-
posal. Commissioner of Internal Revenue v. Simmons Gin
Co., C.C.A.10, 43 F.2d 327, 328.
GAINAGE. The gain or profit of tilled or planted
land, raised by cultivating it; and the draught,
plow, and furniture for carrying on the work of
tillage by the baser kind of sokemen or villeins.
Bract. 1. c. 9.
GAINERY. Tillage, or the profit arising from it,
or from the beasts employed therein.
GAINFUL. Profitable, advantageous, or lucrative.
Smith v. Mutual Life Ins. Co. of New York, La.
App., 165 So. 498, 500.
GAINFUL OCCUPATION. Within disability
clause of policy, term means ordinary employment
of particular insured, or such other employment,
if any, as insured may fairly be expected to fol-
low. Mutual Life Ins. Co. of New York v. Barron,
198 Ga. 1, 30 S.E.2d 879, 882.
GAINOR. In old English law, a sokeman; one
who occupied or cultivated arable land. Old Nat.
Brev. fol. 12.
GAIUS, INSTITUTES OF. See Institutes.
GAJUM. A thick wood. Spelman.
GALE. The payment of a rent, tax, duty, or an-
nuity.
A gale is the right to open and work a mine.
within the Hundred of St. Briavel's, or a stone
quarry within the open lands of the Forest of
Dean.
The right is a license or interest in the nature of real
estate, conditional on the due payment of rent and observ-
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GALEA
ance of the obligations imposed on the galee. It follows
the ordinary rules as to the devolution and conveyance of
real estate. The gale" pays the crown a rent known as a
"galeage rent," "royalty," or some similar name, propor-
tionate to the quantity of minerals got from the mine or
quarry. Sweet.
GALEA. In old records, a piratical vessel; a gal-
ley.
GALENES. In old Scotch law, amends or com-
pensation for slaughter. Bell.
GALLI-HALFPENCE. A kind of coin which, with
suskins and doitkins, was forbidden by St. 3 Hen.
V. c. 1.
GALLIVOLATIUM. A cock-shoot, or cock-glade.
GALLON. A liquid measure containing 231 cubic
inches, or four quarts; the standard gallon of the
United States. State v. Standard Oil Co. of Louis-
iana, 188 La. 978, 178 So. 601, 607. The imperial
gallon contains about 277, and the ale gallon 282,
cubic inches. Hollender v. Magone, C.C.N.Y., 38
F. 914; Nichols v. Beard, C.C.Mass., 15 F. 437.
GALLOWS. A scaffold; a beam laid over either
one or two posts, from which malefactors are
hanged.
GAMACTA. In old European law, a stroke or
blow. Spelman.
GAMALIS. A child born in lawful wedlock; also
one born to betrothed but unmarried parents.
Spelman.
GAMBLE. To play, or game, for money or other
stake; hence to stake money or other thing of
value on an uncertain event. It involves, not only
chance, but a hope of gaining something beyond
the amount played. State v. Mint Vending Ma-
chine No. 195084, 85 N.H. 22, 154 A. 224, 226.
The word "gamble" is perhaps the most apt and sub-
stantial to convey the idea of unlawful play that our lan-
guage affords. It is inclusive of hazarding and betting as
well as playing. Bennett v. State, 2 Yerg., Tenn., 474.
Allen v. Commonwealth, 178 Ky. 250, 198 S.W. 896, 897.
It is not necessary that the player shall hazard what he
plays, but it is equally "gambling" if he may win by
chance more than the value expended by him. Nelson v.
State, 37 Okl.Cr. 90, 256 P. 939, 940; City of Moberly v.
Deskin, 169 Mo.App. 672, 155 S.W. 842, 843.
To constitute "gambling," winner must either pay con-
sideration for his chance to win, or without paying any-
thing in advance stand chance to lose or win. R. J. Wil-
liams Furniture Co. v. McComb Chamber of Commerce, 147
Miss. 649, 112 So. 579, 580, 57 A.L.R. 421; Almy Mfg. Co.
v. City of Chicago, 202 Ill.App. 240.
Commercialized gambling is such gambling as is a source
of sure and steady profit. State v. Gardner, 151 La. 874, 92
So. 368, 371.
A common gambler is one who furnishes facilities for
gambling , or keeps or exhibits a gambling table, establish-
ment, device, or apparatus. People v. Sponsler, 1 Dak. 291,
46 N.W. 459, citing cases.
GAMBLER. One who follows or practices games
of chance or skill, with the expectation and pur-
pose of thereby winning money or other property.
Buckley v. O'Niel, 113 Mass. 193, 18 Am.Rep. 466;
Brannon v. State, 16 Ala.App. 259, 76 So. 991, 993.
GAMBLING DEVICE. Such device, apparatus,
and the like, as is used and employed for gambling,
in the sense that in using it, money or the like is
staked, wagered, won, or lost as a direct result of
its employment or operation. Commonwealth v.
Mihalow, 142 Pa.Super. 433, 16 A.2d 656, 659. A
machine, implement, or contrivance of any kind
for the playing of an unlawful game of chance or
hazard. In re Lee Tong, D.C.Or., 18 F. 257; State
v, McTeer, 129 Tenn. 535, 167 S.W. 121, 122.
GAMBLING POLICY. In life insurance, one is-
sued to a person, as beneficiary, who has no pe-
cuniary interest in the life insured. Otherwise
called a "wager policy." Gambs v. Covenant Mut.
L. Ins. Co., 50 Mo. 47.
GAME. Wild birds and beasts. The word in-
cludes all game birds, game fowl, and game ani-
mals. State ex rel. Sofeico v. Heffernan, 41 N.M.
219, 67 P.2d 240, 246.
Birds and beasts of a wild nature, obtained by fowling
and hunting. Bacon, Abr. Coolidge v. Choate, 11 Metc.,
Mass., 79. The term is said to include (in England) hares,
pheasants, partridges, grouse, heath, or moor game, black
game, and bustards. Brown. 1 & 2 Wm. IV. c. 32. Graves
v. Dunlap, 87 Wash. 648, 152 P. 532, 533, L.R.A.1916C, 338,
Ann.Cas.1917B, 944.
A sport, pastime or contest. Lasseter v. O'Neill,
162 Ga. 826, 135 S.E. 78, 80, 49 A.L.R. 1076; Ever-
hart v. People, 54 Colo. 272, 130 P. 1076, 1077. A
contrivance which has for its object to furnish
sport, recreation, or amusement. Ex parte Wil-
liams, 127 Cal.App. 424, 16 P.2d 172, 173. See Gam-
ing.
GAME-KEEPER. One who has the care of keep-
ing and preserving the game on an estate, being
appointed thereto by a lord of a manor.
GAME LAWS. Laws passed for the preservation
of game, usually forbidding the killing of specified
game during certain seasons, Poulos v. State, 49
Ga.App. 20, 174 S.E. 253, or by certain described
means. As to English game-laws, see 2 Steph.
Comm. 82; 1 & 2 Wm. IV. c. 32.
GAME OF CHANCE. One in which result as to
success or failure depends less on skill and experi-
ence of player than on purely fortuitous or acci-
dental circumstances incidental to game or manner
of playing it or device or apparatus with which it
is played, but not under control of player. People
v. Cohen, 160 Misc. 10, 289 N.Y.S. 397, 400.
GAMING. An agreement between two or more
persons to play together at a game of chance for a
stake or wager which is to become the property of
the winner, and to which all contribute. In re
Stewart, D.C.N.J., 21 F. 398; People v. Todd, 51
Hun, 446, 4 N.Y.S. 25; Carpenter v. Beal-McDonnell
& Co., D.C.Ark., 222 F. 453, 460.
"Gaming" and "gambling," in statutes, are similar in
meaning, and either one comprehends the idea that, by a
bet, by chance, by some exercise of skill, or by the trail,
spiring of some event unknown until it occurs, something
of value is, as the conclusion of premises agreed, to be
transferred from a loser to a winner. Bish.St.Crimes, §
858. Town of Eros v. Powell, 137 La. 342, 68 So. 632, 634;
Reinmiller v. State, 93 Fla. 462, 111 So. 633, 635.
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GARBLER
"Gaming" is properly the act or engagement of the play-
ers. If by-standers or other third persons put up a stake
or wager among themselves, to go to one or the other
according to the result of the game, this is more correctly
termed "betting."
GAMING CONTRACTS. See Wager.
GAMING HOUSE. A building, place, or room kept
for use as a place to gamble, or to keep or exhibit
for the purpose of gaming, any bank, table, alley,
machine, wheel, or device, Davis v. State, Tex.Civ.
App., 165 S.W.2d 757, 758; as the business of the
occupants. 1 Russ.Crimes, 299; Rosc.Crim.Ev.
663; People v. Jackson, 3 Denio, N.Y., 101, 45 Am.
Dec. 449.
GAMING TABLE. Any table that may be used for
playing games of chance for money or property.
State v. Leaver, 171 Mo.App. 371, 157 S.W. 821, 822;
Everhart v. People, 54 Colo. 272, 130 P. 1076, 1080.
GANANCIAL PROPERTY. In Spanish law, a
species of community in property enjoyed by hus-
band and wife, the property being divisible be-
tween them equally on a dissolution of the mar-
riage. 1 Burge, Confl.Law, 418. Cartwright v.
Cartwright, 18 Tex. 634; Cutter v. Waddingham,
22 Mo. 254. See Community.
GANANCIALES. A Spanish term, used as either
a noun or adjective, and applied to property ac-
quired during marriage. Discussed in Sanchez
v. Bowers, C.C.A.N.Y., 70 F.2d 715, 716. See
Ganancial Property, supra.
GANANCIAS. In Spanish law, gains sat profits.
GANG. Any company of persons who go about to-
gether or act in concert, in modern use mainly
for criminal purposes. State v. Gaynor, 119 N.J.L.
582, 197 A. 360, 362.
GANG–WEEK. The time when the bounds of the
parish are lustrated or gone over by the parish
officers,—rogation week. Enc.Lond.
GANGIATORI. Officers in ancient times whose
business it was to examine weights and measures.
Skene.
GANGSTER. A member of a gang of roughs,
hireling criminals, thieves, or the like. State v.
Gaynor, 119 N.J.L. 582, 197 A. 360, 362.
GANSER SYNDROME. A state in which ques-
tions are given nonsensical answers from which a
hidden relevancy may be inferred. This is ob-
served in prisoners who wish to gain leniency by
simulating mental clouding.
GANTELOPE (pronounced "gauntlett.") A mili-
tary punishment, in which the criminal running
between the ranks receives a lash from each man.
Enc.Lond. This was called "running the gaunt-
lett.
GAOL. A prison for temporary confinement; a
jail;  a place for the confinement of offenders
against the law.
As distinguished from "prison," it is said to be a place
for temporary or provisional confinement, or for the pun-
ishment of the lighter offenses and misdemeanors. See,
also, Jail.
GAOL DELIVERY. In criminal law, the delivery
or clearing of a gaol of the prisoners confined
therein, by trying them.
In popular speech, the clearing of a ga&l by the
escape of the prisoners.
General Gaol Delivery. In English law, at the assizes
(q. v.) the judges sit by virtue of five several authorities,
one of which is the commission of "general gaol delivery."
This empowers them to try and deliverance make of every
prisoner who shall be in the gaol when the judges arrive
at the circuit town, whether an indictment has been pre-
ferred at any previous assize or not. 4 Bl.Comm. 270. This
is also a part of the title of some American criminal courts,
as, in Pennsylvania, the "court of oyer and terminer and
general jail delivery."
GAOL LIBERTIES, GAOL LIMITS. A district
around a gaol, defined by limits, within which
prisoners are allowed to go at large on giving se-
curity to return. It is considered a part of the
gaol. Singer v. Knott, 237 N.Y. 110, 142 N.E. 435,
436.
GAOLER. A variant of "jailer" (q. v.).
GARAGE. A place in which motor vehicles are
stored and cared for. Legum v. Carlin, 168 Md.
191, 177 A. 287, 290, 99 A.L.R. 536.
GARANDIA, or GARANTIA. A warranty. Spel-
man.
GARANTIE. In French law, this word corre-
sponds to warranty or covenants for title in Eng-
lish law. In the case of a sale this garantie ex-
tends to two things: (1) Peaceful possession of
the thing sold; and (2) absence of undisclosed de-
fects, (defauts caches.) Brown.
GARATHINX. In old Lombardic law, a gift; a
free or absolute gift; a gift of the whole of a
thing. Spelman.
GARAUNTOR. L. Fr. In old English law, a
warrantor of land; a vouchee; one bound by a
warranty to defend the title and seisin of his
alienee, or, on default thereof, and on eviction
of the tenant, to give him other lands of equal val-
ue. Britt. c. 75.
GARBA. In old English law, a bundle or sheaf.
Blada in garbis, corn or grain in sheaves. Reg.
Orig. 96; Bract. fol. 209.
GARBA SAGITTARUM. A sheaf of arrows, con-
taining twenty-four. Otherwise called "schaffa
sagittarum." Skene.
GARBALES DECIIVUE. In Scotch law, tithes of
corn, (grain.) Bell.
GARBLE. In English statutes, to sort or cull out
the good from the bad in spices, drugs, etc. Cow-
ell.
GARBLER OF SPICES. An ancient officer in the
city of London, who might enter into any shop,
warehouse, etc., to view and search drugs and
spices, and garble and make clean the same, or
see that it be done. Mozley & Whiteley.
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GARCIO
GARCIO STOLIE. "Groom of the stole" (q. v.).
GARCIONES. Servants who follow a camp.
Wals. 242.
GARD, or GARDE. L. Fr. Wardship; care;
custody; also the ward of a city.
GARDEIN. A keeper; a guardian.
GARDEN. A small piece of land, appropriated
to the cultivation of herbs, fruits, flowers, or vege-
tables. People v. Greenburgh, 57 N.Y. 550; Ferry
v. Livingston, 115 U.S. 542, 6 S.Ct. 175, 29 L.Ed.
489; Hubel v. McAdon, 190 Iowa 677, 180 N.W.
994, 995.
GARDEN SEEDS. Seeds for kitchen gardens.
Ross & Co. v. U. S., 9 Ct.Cust.App. 235.
GARDEN TOOLS. Instruments or devices mov-
able in character and operated by hand, or possibly
by other motive power in the performance of work
in the garden or on the farm. Murphy v. Conti-
nental Ins. Co., 178 Iowa 375, 157 N.W. 855, 857,
L.R.A.1917B, 934.
GARDIA. L. Fr. Custody; wardship.
GARDIANUS. In old English law, a guardian,
defender, or protector. In feudal law, gardio.
Spelman.
A warden. Gardianus ecclesioe, a churchwarden.
Gardianus quinque portuum, warden of the Cin-
que Ports. Spelman.
GARDINUM. In old English law, a garden. Reg.
Orig. lb, 2.
GARENE. L. Fr. A warren; a privileged place
for keeping animals.
GARNESTURA. In old English law, victuals,
arms, and other implements of war, necessary for
the defense of a town or castle. Mat.Par. 1250.
GARNISH, n. In English law, money paid by a
prisoner to his fellow-prisoners on his entrance
into prison.
GARNISH, v. To warn or summon.
To issue process of garnishment against a per-
son.
GARNISHEE. One garnished; a person against
whom process of garnishment is issued; one who
has money or property in his possession belong-
ing to a defendant, or who owes the defendant a
debt, which money, property, or debt is attached in
his hands, with notice to him not to deliver or pay
it over until the result of the suit be ascertained.
Welsh v. Blackwell, 14 N.J.L. 348; Smith v. Miln,
22 Fed.Cas. 606; Edwards v. Stein, 94 N.J.Eq. 251,
119 A. 504, 505.
GARNISHMENT. A warning to a person in whose
hands the effects of another are attached, not to
pay the money or deliver the property of the de-
fendant in his hands to him, but to appear and
answer the plaintiff's suit. Drake, Attachm. § 451;
National Bank of Wilmington v. Furtick, 2 Marv.,
Del., 35, 42 A. 479, 44 L.R.A. 115, 69 Am.St.Rep. 99;
Jeary v. American Exch. Bank, 2 Neb. (Unof.) 657,
89 N.W. 772.
A statutory proceeding whereby person's prop-
erty, money, or credits in possession or under
control of, or owing by, another are applied to
payment of former's debt to third person by prop-
er statutory process against debtor and garnishee.
Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042.
It is an incident to or an auxiliary of judgment rendered
in principal action, and is resorted to as a means of obtain-
ing satisfaction of judgment by reaching credits or prop-
erty of judgment debtor in hands of garnishee. Graber v.
Ft. Dearborn Casualty Underwriters of Chicago, Ill., Mo.
App., 35 S.W.2d 933, 934. Or by reaching goods, moneys,
or effects of debtor in possession of another, or by applying
on a judgment, debts or credits due to debtor by another.
Nacy v. Le Page, 341 Mo. 1039, 111 S.W.2d 25, 114
A. L. R. 259.
Also a warning to any one for his appearance,
in a cause in which he is not a party, for the in-
formation of the court and explaining a cause.
Cowell; Crawford State Bank of Crawford v.
Murphy, 142 Neb. 795, 7 N.W.2d 762, 763.
Equitable garnishment, is sometimes applied to the stat-
utory proceedings authorized in some states, upon the
return of an execution unsatisfied, whereby an action some-
thing like a bill of discovery may be maintained against the
judgment debtor and any third person, to compel the dis-
closure of any money or property or chose in action belong-
ing to the debtor or held in trust for him by such third
person, and to procure satisfaction of the judgment out of
such property. Geist v. St. Louis, 156 Mo. 643, 57 S.W. 766,
79 Am.St.Rep. 545. See St. Louis v. O'Neil Limber Co., 114
Mo. 74, 21 S. W. 484.
Execution. See Execution.
GARNISTURA. In old English law, garniture;
whatever is necessary for the fortification of a
city or camp, or for the ornament of a thing. 8
Rymer, 328; Du Cange; Cowell; Blount.
GARRISON. The permanent home of the army
in time of peace, where soldiers are given proper
training with a view of having them prepared for
the intelligent performance of duty in event of
conflict. Hines v. Mikell, C.C.A.S.C., 259 F. 28, 31.
GARROTING. A method of inflicting the death
penalty on convicted criminals practiced in Spain,
Portugal, and some Spanish-American countries,
consisting in strangulation by means of an iron
collar which is mechanically tightened about the
neck of the sufferer, sometimes with the variation
that a sharpened screw is made to advance from
the back of the apparatus and pierce the base of
the brain. Also, popularly, any form of stran-
gling resorted to to overcome resistance or induce
unconsciousness, especially as a concomitant to
highway robbery.
GARSUMME. In old English law, an amercia-
ment or fine. Cowell.
GARTER. A string or ribbon by which the stock-
ing is held upon the leg.
The mark of the highest order of English
knighthood, ranking next after the nobility.
This military order of knighthood is said to have been
first instituted by Richard I., at the siege of Acre, where
he caused twenty-six knights who firmly stood by him to
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wear thongs of blue leather about their legs. It is also
said to have been perfected by Edward III. and to have
received some alterations, which were afterwards laid
aside, from Edward VI. The badge of the order is the
image of St. George, called the "George," and the motto is
"Honi soit qui mal y pense." Wharton.
This order called "Knights of the Garter" is otherwise
called "Knights of the Order of St. George." They form
the highest order of knights.
GARTH. In English law, a yard; a little close
or homestead in the north of England. Cowell;
Blount.
A dam or wear in a river, for the catching of
fish.
GARYTOUR. In old Scotch law, warder. 1 Pitc.
Crim. Tr. pt. 1, p. 8.
GAS. An aeriform fluid. Lamar v. Iowa State
Traveling Men's Ass'n, 216 Iowa 371, 249 N.W. 149,
92 A.L.R. 159. That gas used for illuminating
purposes and for fuel. Birss v. Order of United
Commercial Travelers of America, 109 Neb. 226,
190 N.W. 486, 487.
Casing-head gas is gas which flows from oil wells, coming
between casing and tubing. Humble Oil & Refining Co. v.
Poe, Tex.Com.App., 29 S.W.2d 1019, 1020.
Natural gas is the gas obtained from wells in coal and
oil regions, and used for lighting and heating. Dry natural
gas is natural gas which does not contain an appreciable
amount of readily condensible gasoline; it is usually not
intimately associated with petroleum. Wet natural gas is
natural gas from which a gasoline can be extracted in suffi-
cient quantities to warrant the installation of a plant, or
natural gas which contains readily condensible gasoline.
Mussellem v. Magnolia Petroleum Co., 107 Okl. 183, 231 P.
526, 530.
It is a colorless inflammable fluid, the first and highest
distillant of crude petroleum. Being the most volatile com-
ponent of petroleum, it readily separates from it, and, in
the process of distillation, is the oil drawn off at the lowest
temperature. Locke v. Russell, 75 W.Va. 602, 84 S.E. 948,
949; Hammett Oil Co. v. Gypsy Oil Co., 95 Oki. 235, 218 P.
501, 504, 34 A.L.R. 275.
GASOLINE. A volatile, inflammable hydrocar-
bon mixture used as a fuel, especially for intern-
al combustion engines. Coleman v. United States,
Ct.C1., 37 F.Supp. 273, 277.
GAST. L. Fr. Waste. See the letter "G," supra.
GASTALDUS. A temporary governor of the
country. Blount. A bailiff or steward. Spelman.
GASTEL. L. Fr. Wastel; wastel bread; the fin-
est sort of wheat bread. Britt. c. 30: Kelham.
GASTINE. L. Fr. Waste or uncultivated ground.
Britt. c. 57.
GATE (Sax. geat), at the end of names of places,
signifies way or path. Cunningham, Law Dict.
In the words beast-gate and cattle-gate, it
means a right of pasture.
In modern railroad practice, movable barriers
which close entrance through which public is per-
mitted to enter upon, pass over, and leave prop-
erty of railway company inclosed within its right
of way fences. Jeffery v. Kewaunee, G. B. & W.
Ry. Co., 189 Wis. 207, 207 N.W. 283, 284.
These rights are local to Suffolk and Yorkshire respec-
tively; they are considered as corporeal hereditaments, for
which ejectment will lie; 2 Stra. 1084, 1 Term 137; and
are entirely distinct from right of common. The right is
sometimes connected with the duty of repairing the gates
of the pasture; and perhaps the name comes from this.
GAUDIES. A term used in the English universi-
ties to denote double commons.
GAUGE. The measure of width of a railway, fix-
ed, with some exceptions, at 4 feet 8 1/2 inches in
Great Britain and America, and 5 feet 3 inches in
Ireland.
GAUGEATOR. A gauger. Lowell.
GAUGER. A surveying officer under the cus-
toms, excise, and internal revenue laws, appoint-
ed to examine all tuns, pipes, hogsheads, barrels
and tierces of wine, oil, and other liquids, and to
give them a mark of allowance, as containing law-
ful measure. There are also private gaugers in
large seaport towns, who are licensed by govern-
ment to perform the same duties. Rapal. & L.
GAUGETUM. A gauge or gauging; a measure
of the contents of any vessel.
GAVEL. In English law, custom; tribute; toll;
yearly rent; payment of revenue; of which there
were anciently several sorts; as gavel-corn, gavel-
malt, oat-gavel, gavel-fodder, etc. Termes de la
Ley; Cowell; Co.Litt. 142a.
GAVEL—MAN. A tenant liable to the payment of
gavel or tribute. Somn. Gavelkind, 23.
GAVELBRED. Rent reserved in bread, corn, or
provision; rent payable in kind. Cowell.
GAVELCESTER. A certain measure of rent-ale.
Cowell.
GAVELET. An obsolete writ. An ancient and
special kind of cessavit, used in Kent and London
for the recovery of rent. The statute of gavelet
is 10 Edw. II. 2 Reeve, Eng.Law, c. 12, p. 298.
See Emig v. Cunningham, 62 Md. 460.
GAVELGELD. That which yields annual profit
or toll. The tribute or toll itself. Cowell; Du
Cange.
GAVELHERTE. A service of plowing performed
by a customary tenant. Cowell; Du Cange.
GAVELING MEN. Tenants who paid a reserved
rent, besides some customary duties to be done
by them. Cowell.
GAVELKIND. A species of socage tenure com-
mon in Kent, in England, where the lands descend
to all the sons, or heirs of the nearest degree, to-
gether; may be disposed of by will; do not es-
cheat for felony; may be aliened by the heir at
the age of fifteen; and dower and curtesy is giv-
en of half the land. Stim.Law Gloss.
GAVELLA. See Gabella.
GAVELLER. An officer of the English crown
having the general management of the mines, pits,
and quarries in the Forest of Dean and Hundred of
St. Briavel's, subject, in some respects, to the con-
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trol of the commissioners of woods and forests.
He grants gales to free miners in their proper or-
der, accepts surrenders of gales, and keeps the
registers required by the acts. There is a deputy-
gaveller, who appears to exercise most of the ga y
-eller's functions. Sweet.
GAVELMED. A customary service of mowing
meadow-land or cutting grass (consuetudo fal-
candi). Blount.
GAVELREP. Bedreap or bidreap; the duty of
reaping at the bid or command of the lord. Somn.
Gavelkind, 19, 21; Cowell.
GAVELWERK. A customary service, either
manuopera, by the person of the tenant, or carro-
pera, by his carts or carriages. Blount; Somn.
Gavelkind, 24; Du Cange.
GAZETTE. The official publication of the Eng-
lish government, also called the "London Gazette,"
It is evidence of acts of state, and of everything done by
the king in his political capacity. Orders of adjudication in
bankruptcy are required to be published therein; and the
production of a copy of the "Gazette," containing a copy
of the order of adjudication, is evidence of the fact. Moz-
ley & Whitley.
GDN. Equivalent to guardian. National Surety
Co. v. McNeill's Guardian, 251 Ky. 509, 65 S.W.2d
721.
GEBOCCED, An Anglo-Saxon term, meaning
"conveyed."
GEBOCIAN. In Saxon law, to convey; to trans-
fer boc land, (book-land or land held by charter.)
The grantor was said to gebocian the alienee.
See 1 Reeve, Eng.Law, 10.
GEBRAUCHSMUSTER. Issued in accordance
with law of Germany, it is a patent. Permutit
Co. v. Graver Corporation, D.C.Ill., 37 F.2d 385,
390.
GEBUR (Sax.). A boor.
His services varied in different places--to work for his
lord two or more days a week; to pay gafols in money,
barley, etc.; to pay hearth money, etc. He was a tenant
with a house and a yard land or virgate or two oxen.
Maitl. Domesday and Beyond 37.
GEBURSCRIPT. In old English law, neighbor-
hood or adjoining district. Cowell.
GEBURUS. In old English law, a country neigh-
bor; an inhabitant of the same geburscript, or
village. Cowell.
GELD. In Saxon law, money or tribute. A
mulct, compensation, value; price.
Angeld was the single value of a thing; twigeld, double
value, etc. So, weregeld was the value of a man slain;
or/geld, that of a beast. Brown. A land tax of so much
per hide or carucate. Maitl. Domesday Book 120. The
compensation for a crime.
GELDABILIS. In old English law, taxable;
geldable.
GELDABLE. Liable to pay geld; liable to be tax-
ed. Kelham.
GELDING. A horse that has been castrated, and
which is thus distinguished from the horse in his
natural and unaltered condition. A "ridgling" (a
half-castrated horse) is not a gelding, but a horse,
within the denomination of animals in the stat-
utes. Brisco v. State, 4 Tex.App. 219, 30 Am.Rep.
162.
GELT. As a verb, an alternative form of the
past tense of "geld," commonly "gelded." See
Gelding.
As a noun, used incorrectly for geld (q. v.).
Webster, New Int. Dict.
GEMMA. Lat. In the civil law, a gem; a preci-
ous stone. Gems were distinguished by their
transparency; such as emeralds, chrysolites, ame-
thysts. Dig. 34, 2, 19, 17.
GEMOT. In Saxon law, a meeting or moot; a
convention; a public assemblage.
These were of several sorts, such as the witena-gemot, or
meeting of the wise men; the folo-gemot, or general assem-
bly of the people; the shire-gemot, or county court; the
burg-gemot, or borough court; the hundred-gemot, or hun-
dred court; the hali-gemot, or court-baron; the hal-mote,
a convention of citizens in their public hall; the holy-mote,
or holy court; the swein-gemote, or forest court; the
ward-mote, or ward court. Wharton; Cunningham.
GENEALOGY. The summary history or table of
a family, showing how the persons there named
are connected together.
GENEARCH. The head of a family.
GENEATH. In Saxon law, a villein, or agricul-
tural tenant, (villanus villicus;) a hind or far-
mer, (firmarius rusticus.) Spelman.
GENER. Lat. In the civil law, a son-in-law; a
daughter's husband. (Filice vir.) Dig. 38, 10, 4,
6.
GENERAL. From Latin word genus. It relates
to the whole kind, class, or order. Leuthold v.
Brandjord, 100 Mont 96, 47 P.2d 41, 45. Pertaining
to or designating the genus or class, as distin-
guished from that which characterizes the species
or individual; universal, not particularized, as
opposed to special; principal or central, as op-
posed to local; open or available to all, as opposed
to select; obtaining commonly, or recognized uni-
versally, as opposed to particular; universal or un-
bounded, as opposed to limited; comprehending
the whole or directed to the whole, as distinguish-
ed from anything applying to or designed for a
portion only. Board of Sup'rs of Attala County
v. Illinois Cent. R. Co., 186 Miss. 294, 190 So. 241.
Extensive or common to many. Record v. Ellis,
97 Kan. 754, 156 P. 712, 713, L.R.A.1916E, 654, Ann.
Cas.1917C, 822; McNeill v. McNeill, 166 Iowa,
680. 148 N.W. 643. 651.
As a noun, the word is the title of a principal
officer in the army, usually one who commands a
whole army, division, corps, or brigade. In the
United States army, the rank of "general" is one
of the highest, next to the commander in chief,
and is only occasionally created. The officers next
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GENERAL EXCEPTION
in rank are lieutenant general, major general, and
brigadier general.
As to general "Acceptance," "Administration
of Estates," "Agent," "Appearance," "Assign-
ment," "Average," "Benefit," "Challenge," "Char-
acter," "Charge," "Covenant," "Creditor," "Cus-
tom," "Damages," "Demurrer," "Denial," "Depos-
it," "Device," "Election," "Finding," "Franchise,"
"Fund," "Gaol Delivery," "Guardian," "Guaranty,"
"Imparlance," "Insurance," "Intent," "Issue,"
"Legacy," "Letter of Credit," "Malice," "Meeting,"
"Monition," "Mortgage," "Occupant," "Orders,"
"Owner," "Partnership," "Power," "Property,"
"Replication," "Restraint of Trade," "Retainer,"
"Return Day," "Rules," "Sessions," "Ship," "Stat-
ute," "Tail," "Tenancy," "Term," "Traverse," "Us-
age," "Verdict," "Warrant," and "Warranty," see
those titles.
GENERAL AGENCY BUSINESS. One engaged
in such general agency business is one not engag-
ed as agent for single firm or person, but holding
himself out to public as being engaged in business
of being agent. Corner v. State Tax Commission
of New Mexico, 41 N.M. 403, 69 P.2d 936, 939.
GENERAL ASSEMBLY. State Senate and House
of Representatives. Pirtle v. Brown, C.C.A.Tenn.,
118 F.2d 218, 220.
The policy making body of the United Nations.
It is composed of from one to five delegates from
each member nation, although each member na-
tion has but one vote.
The highest "judicatory" of the Presbyterian
church, representing in one body all of the par-
ticular churches of the denomination. Trustees of
Pencader Presbyterian Church in Pencader Hun-
dred v. Gibson, 26 Del.Ch. 375, 22 A.2d 782, 788.
GENERAL ASSIGNMENT FOR BENEFIT OF
CREDITORS. A transfer of legal and equitable
title to all debtor's property to trustee, with au-
thority to liquidate debtor's affairs and distribute
proceeds equitably to creditors. Central Fibre
Products Co. v. Hardin, C.C.A.Tex., 82 F.2d 692,
694.
GENERAL ASSUMPSIT. An action of assumpsit
brought upon the promise or contract implied by
law in certain cases. Holcomb v. Kentucky Union
Co., 262 Ky. 192, 90 S.W.2d 25, 28.
GENERAL AVERAGE CONTRIBUTION. A con-
tribution by all parties in a sea adventure to make
good loss sustained by one of their number on ac-
count of sacrifices voluntarily made of part of
ship or cargo to save residue and lives of those on
board from an impending peril or for extraordina-
ry expenses necessarily incurred by one or more
of the parties for the general benefit of all the in-
terests embarked in the enterprise. Pacific
Freighters Co. v. St. Paul Fire & Marine Ins. Co.,
C.C.A.Cal., 109 F.2d 310, 312.
GENERAL AVERAGE STATEMENT. State-
ment of account and admission on shipowner's
part as to amount dm cargo owner. Kohler &
Chase v. United American Lines, D.C.N.Y., 60 F.
2d 530, 533.
GENERAL BEQUEST. One not segregated or
withdrawn from estate under terms of will but to
be paid in money or property as latter directs.
In re McDougald's Estate, 149 Fla. 468, 6 So.2d
274.
GENERAL BOARD OF THE NAVY. A general
advisory board to the Secretary of the Navy as
to the preparation, maintenance and distribution
of the fleet, plans of campaign, number and types
of vessels, etc., number and ranks of officers and
number and ratings of enlisted men, etc.
GENERAL BUILDING SCHEME. One under
which owner of large tract of land divides it into
building lots, to be sold to different persons for
separate occupancy by deeds which contain uni-
form covenants restricting the use which the sev-
eral grantees may make of their premises. Besch
v. Hyman, 221 App.Div. 455, 223 N.Y.S. 231, 233.
GENERAL CIRCULATION. That of a general
newspaper only, as distinguished from one of a
special or limited character; 1 Lack.Leg.N., Pa.,
114. It is not determined by number of subscrib-
ers but by the diversity of subscribers. Eisenberg
v. Wabash, 355 Ill. 495, 189 N.E. 301, 302.
GENERAL COUNCIL. (1) A council consisting
of members of the Roman Catholic Church from
most parts of the world, but not from every part,
as an ecumenical council. (2) One of the names
of the English parliament.
GENERAL COURT. The name given to the leg-
islature of Massachusetts and of New Hampshire,
in colonial times, and subsequently by their con-
stitutions; so called because the colonial legisla-
ture of Massachusetts grew out of the general
court or meeting of the Massachusetts Company.
Cent.Dict. See Citizens' Sa y . & Loan Ass'n v.
Topeka, 20 Wall. 666, 22 L.Ed. 455.
GENERAL CREDIT. The character of a witness
as one generally worthy of credit. A distinction
is sometimes insisted upon between this and "par-
ticular credit," which may be affected by proof
of particular facts relating to the particular ac-
tion. See Bemis v. Kyle, 5 Abb.Prac.,N.S., N.Y.,
233.
GENERAL ESTATE. Customarily, the entire es-
tate held by a person in his individual capacity.
In re Shipley's Estate, 337 Pa. 580, 12 A.2d 347,
348.
In will requiring estate taxes to be paid out of general
estate, "general estate" referred to "residuary estate"
remaining after gift of personalty and use of realty to
testator's wife, and hence gift to wife was exempt from
contribution to estate taxes and interest thereon. In re
Chambers' Estate, Sur., 54 N.Y.S.2d 88, 90.
GENERAL EXCEPTION. General exception is
an objection to a pleading, or any part thereof,
for want of substance, while a special exception
is an objection to the form in which a cause of
action is stated. Cochran v. People's Nat. Bank,
Tex.Civ.App., 271 S.W. 433, 434.
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GENERAL EXECUTION
GENERAL EXECUTION. A writ commanding
an officer to satisfy a judgment out of any per-
sonal property of the defendant. If authorizing
him to levy only on certain specified property, the
writ is sometimes called a "special" execution.
Pracht v. Pister, 30 Kan. 568, 1 P. 638.
GENERAL EXECUTOR. One whose power is
not limited either territorially or as to the dura-
tion or subject of his trust. One who is to have
charge of the whole estate, wherever found, and
administer it to a final settlement.
GENERAL FEE CONDITIONAL. A grant to a
person and heirs of his body. Blume v. Pearcy,
204 S.C. 409, 29 S.E.2d 673, 674.
GENERAL FIELD. Several distinct lots or piec-
es of land inclosed and fenced in as one common
field. Mansfield v. Hawkes, 14 Mass. 440.
GENERAL IMPROVEMENT. Where primary
purpose and effect of improvement is to benefit
public generally, though it may incidentally bene-
fit property owners in particular locality. Hin-
man v. Temple, 133 Neb. 268, 274 N.W. 605, 608,
111 A.L.R. 1217.
GENERAL INCLOSURE ACT. The statute 41
Geo. III, c. 109, which consolidates a number of
regulations as to the inclosure of common fields
and waste lands.
GENERAL INSTRUCTION. An explanation of
legal terms specifically provided for by statute.
Humble Oil & Refining Co. v. Owings, Tex.Civ.
App., 128 S.W.2d 67, 76.
GENERAL INTEREST. In regard to admissibil-
ity of hearsay evidence, a distinction has been tak-
en between "public" and "general" interest, the
term "public" being strictly applied to that which
concerns every member of the state, and the term
"general" being confined to a lesser, though still
a considerable, portion of the community. Tayl.
Ev. § 609.
GENERAL JURISDICTION. Such as extends to
all controversies that may be brought before a
court within the legal bounds of rights and rem-
edies; as opposed to special or limited jurisdic-
tion, which covers only a particular class of cases,
or cases where the amount in controversy is be-
low a prescribed sum, or which is subject to spe-
cific exceptions. The terms "general" and "spe-
cial," applied to jurisdiction, indicate the differ-
ence between a legal authority extending to the
whole of a particular subject and one limited to
a part; and, when applied to the terms of court,
the occasion upon which these powers can be re-
spectively exercised. Gracie v. Freeland, 1 N.Y.
232.
GENERAL LAND OFFICE. Formerly an office
of the United States government, being a division
of the Department of the Interior, having charge
of all executive action relating to the public lands,
including their survey, sale or other disposition,
and patenting; originally constituted by Act of
Congress in 1812. The General Land Office and
the U. S. Grazing Service were consolidated into
the Bureau of Land Management under the De-
partment of the Interior by 1946 Reorganization
Plan No. 3, § 403. See notes to 43 U.S.C.A. § 1.
GENERAL LAW. A law that affects the com-
munity at large. A general law as contradistin-
guished from one that is special or local, is a law
that embraces a class of subjects . or places, and
does not omit any subject or place naturally be-
longing to such class. Van Riper v. Parsons, 40
N.J.Law, 1; Mathis v. Jones, 84 Ga. 804, 11 S.E.
1018; Brooks v. Hyde, 37 Cal. 376; Arms v. Ayer,
192 Ill. 601, 61 N.E. 851, 58 L.R.A. 277, 85 Am.St.
Rep. 357.
A law, framed in general terms, restricted to no locality,
and operating equally upon all of a group of objects, which,
having regard to the purposes of the legislation, are distin-
guished by characteristics sufficiently marked and impor-
tant to make them a class by themselves, is not a special
or local law, but a general law. Jones v. Power County, 27
Idaho, 656, 150 P. 35, 37; Scarbrough v. Wooten, 23 N.M.
616, 170 P. 743; Toombs v. Sharkey, 140 Miss. 676, 106 So.
273, 275; Van Riper v. Parsons, 40 N.J.L. 123, 29 Am. Rep.
210.
GENERAL LIEN. A general lien is a right to
detain a chattel, etc., until payment be made, not
only of any debt due in respect of the particular
chattel, but of any balance that may be due on
general account in the same line of business. A
general lien, being against the ordinary rule of
law, depends entirely upon contract, express or
implied, from the special usage of dealing between
the parties. Wharton. Crommelin v. Railroad
Co., 10 Bosw., N.Y., 80; McKenzie v. Nevius, 22 Me.
150, 38 Am.Dec. 291; Brooks v. Bryce, 21 Wend.,
N.Y., 16; 3 B. & P. 494.
GENERAL MANAGER. One having general di-
rection and control of corporation's affairs, and
who may do everything which corporation could
do in transaction of its business. Continental Sup-
ply Co. v. Forrest E. Gilmore Co. of Texas, Tex.
Civ.App., 55 S.W.2d 622. A manager for all gen-
eral purposes of the corporation. Phcenix Finance
Corporation v. Iowa-Wisconsin Bridge Co., 2 Terry
130, 16 A.2d 789, 793.
GENERAL POWER OF APPOINTMENT. One
exercisable in favor of any person the donee may
select. Johnstone v. Commissioner of Internal
Revenue, C.C.A.9, 76 F.2d 55, 57.
GENERAL TAXES. Those imposed by and paid
to state as a state which return taxpayer no spe-
cial benefit other than the protection afforded him
and his property by government, and promotion
of schemes which have for their benefit the wel-
fare of all. Pacific Gas & Electric Co. v. Sacra-
mento Municipal Utility Dist., D.C.Cal., 17 F.Supp.
685, 686. A tax, imposed solely or primarily for
purpose of raising revenue and merely granting
person taxed right to conduct business or profes-
sion. American Can Co. v. City of Tampa, 152
Fla. 798, 14 So.2d 203, 210.
GENERAL WORDS. Such words of a descriptive
character as are used in conveyances in order to
convey, not only the specific property described,
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but also all kinds of easements, privileges, and
appurtenances which may possibly belong to the
property conveyed.
Such words are in general unnecessary; but are properly
used when there are any easements or privileges reputed to
belong to the property not legally appurtenant to it.
Such words are rendered unnecessary by the English
conveyancing act of 1881, under which they are presumed to
be included.
See, as to the effect of such words in deeds, 4 M. & S.
423; in a will; 1 P.Wms. 302; in a lease; 2 Moo. 592; in
a release; 3 Mod. 277; i sn a covenant; 3 Moo. 703; in a
statute; 1 Bla.Com. 88; 2 Co. 46.
GENERALE. The usual commons in a religious
house, distinguished from pietantice, which on ex-
traordinary occasions were allowed beyond the
commons. Cowell.
GENERALE DICTUM GENERALITER EST IN-
TERPRETANDUM. A general expression is to be
interpreted generally. 8 Coke, 116a.
GENERALE NIHIL CERTUM IMPLICAT. A gen-
eral expression implies nothing certain. 2 Coke,
34b. A general recital in a deed has not the effect
of an estoppel. Best, Ev. p. 408, § 370.
GENERALE TA NTUM VALET IN GENERALI-
BUS, QUANTUM SINGULARE IN SINGULIS.
What is general is of as much force among gen-
eral things as what is particular is among things
particular. 11 Coke, 59b.
GENERALIA PRIECEDUNT, SPECIALIA SE-
QUUNTUR. Things general precede, things spe-
cial follow. Reg.Brev.; Branch, Princ.
GENERALIA SPECIALIBUS NON DEROGANT.
Jenk.Cent. 120, cited L.R. 4 Exch. 226. General
words do not derogate from special.
GENERALIA SUNT PRZEPONENDA SINGU-
LARIBUS. Branch, Princ. General things are
to precede particular things.
GENERALIA VERBA SUNT GENERALITER IN-
TELLIGENDA. General words are to be under-
stood generally, or in a general sense. 3 Inst. 76;
Broom, Max. 647.
GENERALIBUS SPECIALIA DEROGANT. Spe-
cial things take from generals. Halk.Lat.Max.
51.
GENERALIS CLAUSULA NON PORRIGITUR
AD EA QUJEANTEA SPECIALITER SUNT COM- •
PREHENSA. A general clause does not extend
to those things which are previously provided
for specially. 8 Coke, 154b. Therefore, where a
deed at the first contains special words, and after-
wards concludes in general words, both words, as
well general as special, shall stand.
GENERALIS REGULA GENERALITER EST IN-
TELLIGENDA. A general rule is to be understood
generally. 6 Coke, 65.
GENERALS OF ORDERS. Chiefs of the several
orders of monks, friars, and other religious so-
cieties.
GENTOO
GENERATIO. The issue or offspring of a mother-
monastery. Cowell.
GENERATION. May mean either a degree of
removal in computing descents, or a single succes-
sion of living beings in natural descent. McMillan
v. School Committee, 107 N.C. 609, 12 S.E. 330, 10
L.R.A. 823.
GENEROSA. Gentlewoman. Cowell; 2 Inst. 668.
GENEROSI FILIUS. The son of a gentleman.
Generally abbreviated "gen. fil."
GENEROSUS. Lat. Gentleman; a gentleman.
Spelman.
GENICULUM. A degree of consanguinity. Spel-
man.
GENOESE LOTTERY. Also known as the "nu-
merical" lottery.  As distinguished from the
"class" lottery (see the title Dutch Lottery), it is
a scheme by which, out of 90 consecutive num-
bers, five are to be selected or drawn by lot. The
players have fixed on certain numbers, wagering
that one, two, or more of them will be drawn
among the five, or that they will appear in a cer-
tain order. Fleming v. Bills, 3 Or. 286.
GENS. Lat. In Roman law, a tribe or clan; a
group of families, connected by common descent
and bearing the same name, being all free-born and
of free ancestors, and in possession of full civic
rights.
GENS DE JUSTICE. In French law, officers of a
court.
GENTES. Lat. People. Contra omnes gentes,
against all people. Bract. fol. 37b. Words used in
the clause of warranty in old deed.
GENTILES. In Roman law, the members of a
gens or common tribe.
GENTLEMAN. Refers to a man of birth, but not
noble; a man raised above the vulgar by his char-
acter or past. Bramblett v. Trust Co. of Georgia,
182 Ga. 87, 185 S.E. 72, 76. In English law. A
person of superior birth.
Under the denomination of "gentlemen" are comprised
all above yeoman; whereby noblemen are truly called
"gentlemen." Smith de Rep. Ang. lib. 1, cc. 20, 21.
A "gentleman" is defined to be one who, without any
title, bears a coat of arms, or whose ancestors have been
freemen; and, by the coat that a gentleman giveth, he is
known to be, or not to be, descended from those of his
name that lived many hundred years since. Jacob. See
Cresson v. Cresson, 6 Fed.Cas. 809.
GENTLEMAN USHER. One who holds a post at
court to usher others to the presence, etc.
GENTLEWOMAN. The word is a relative one
without any legal significance. It refers to a wo-
man of the same rank or status as that of a "gen-
tleman." Bramblett v. Trust Co. of Georgia, 182
Ga. 87, 185 S.E. 72, 76. A woman of birth above
the common, or equal to that of a gentleman; an
addition of a woman's state or degree.
GENTOO LAW. See Hindu Law.
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GENUINE
GENUINE. As applied to notes, bonds, and other
written instruments, this term means that they
are truly what they purport to be, and that they
are not false, forged, fictitious, simulated, spuri-
ous, or counterfeit. Baldwin v. Van Deusen, 37
N.Y. 492; Smeltzer v. White, 92 U.S. 392, 23 L.Ed.
508; Krug v. Sinclaire, 57 Cal.App. 563, 207 P. 696,
697. A will that has been revoked by later instru-
ment and not revived by republication is not "gen-
uine," within Surrogate's Court Act, § 144. In re
Kiltz's Will, 125 Misc. 475, 211 N.Y.S. 450, 461.
GENUS. In the civil law, a general class or divi-
sion, comprising several species. In toto jure
generi per speciem derogatur, et illud potissimum
habetur quod ad speciem directum est, through-
out the law, the species takes from the genus, and
that is most particularly regarded which refers
to the species. Dig. 50, 17, 80.
A man's lineage, or direct descendants.
In logic, it is the first of the universal ideas,
and is when the idea is so common that it extends
to other ideas which are also universal; e. g., in-
corporeal hereditament is genus with respect
to a rent, which is species. Woolley, Introd. Log.
45; 1 Mill, Log. 133.
GEORGE-NOBLE. An English gold coin, value
6s. 8d.
GERECHTSBODE. In old New York law, a court
messenger or constable. O'Callaghan, New Neth.
322.
GEREFA. In Saxon law, greve, reve, or reeve;
a ministerial officer of high antiquity in England;
answering to the grave or graf (grafio) of the
early continental nations. The term was applied
to various grades of officers, from the scyre-gerefa,
shire-grefe, or shire-reve, who had charge of the
county, (and, whose title and office have been per-
petuated in the modern "sheriff,") down to the
tungerefa, or town-reeve, and lower. Burrill.
GERENS. Bearing. Gerens datum, bearing date.
1 Ld. Raym. 336; Hob. 19.
GERMAN. Whole, full, or own, in respect to re-
lationship or descent. Brothers-german, as op-
posed to half-brothers, are those who have both the
same father and mother. Cousins-german are
"first" cousins; that is, children of brothers or
sisters.
GERMANE. In close relationship, appropriate,
relative, pertinent. State ex rel. Riley v. District
Court of Second Judicial Dist. in and for Silver
Bow County, 103 Mont. 576, 64 P.2d 115, 119.
GERMANUS. Lat. Descended of the same stock,
or from the same couple of ancestors; of the
whole or full blood. Mackeld.Rom.Law, § 145.
GERMEN TERR1E. Lat. A sprout of the earth.
A young tree, so called.
GERONTOCOMI. In the civil law, officers ap-
pointed to manage hospitals for the aged poor.
GERONTOCOMIUM. In the civil law, an institu-
tion or hospital for taking care of the old. Cod. 1,
3, 46, 1; Calvin.
GERRYMANDER. A name given to the process
of dividing a state or other territory into the au-
thorized civil or political divisions, but with such
a geographical arrangement as to accomplish a
sinister or unlawful purpose, as, for instance, to
secure a majority for a given political party in
districts where the result would be otherwise if
they were divided according to obvious natural
lines, or to arrange school districts so that children
of certain religions or nationalities shall be
brought within the district and those of a different
religion or nationality in another district. State
v. Whitford, 54 Wis. 150, 11 N.W. 424.
GERSUMARIUS. In old English law, finable;
liable to be amerced at the discretion of the lord
of a manor. Cowell.
GERSUME. In old English law, expense; reward;
compensation; wealth. It is also used for a fine
or compensation for an offense. 2 Mon.Angl. 973.
GEST. In Saxon law, a guest. A name given to
a stranger on the second night of his entertain-
ment in another's house. Twanight gest.
GESTATION. The time during which a woman
carries a fetus in her womb, from conception to
birth. But, as used in all medical authorities, this
phrase does not mean the actual number of days
from conception to birth. Dazey v. Dazey, 50 Cal.
App.2d 15, 122 P.2d 308, 309.
GESTIO. In the civil law, behavior or conduct.
Management or transaction. Negotiorum ges-
tio, the doing of another's business; an interfer-
ence in the affairs of another in his absence, from
benevolence or friendship, and without authority.
Dig. 3, 5, 45; Id. 46, 3, 12, 4; 2 Kent, Comm. 616,
note.
GESTIO PRO 111EREDE. Behavior as heir.
This expression was used in the Roman law, and adopted
in the civil law and Scotch law, to denote conduct on the
part of a person appointed heir to a deceased person, or
otherwise entitled to succeed as heir, which indicates an
intention to enter upon the inheritance, and to hold himself
out as heir to creditors of the deceased ; as by receiving the
rents due to the deceased, or by taking possession of his
title-deeds, etc. Such acts will render the heir liable to the
debts of his ancestor. Mozley & Whitley.
GESTOR. In the civil law, one who acts for an-
other, or transacts another's business. Calvin.
GESTU ET FAMA. An ancient and obsolete writ
resorted to when a person's good behavior was
impeached. Lamb.Eir. 1. 4, c. 14.
GESTUM. Lat. In Roman law, a deed or act; a
thing done. Some writers affected to make a dis-
tinction between "gestum" and "factum." But the
best authorities pronounced this subtile and inde-
fensible. Dig. 50, 16, 58.
GET, n. Under Hebraic law, evidence of the
granting of a divorce. Kopit v. Zilberszmidt, Sup.,
35 N.Y.S.2d 558, 560. A bill of divorce among the
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GIFT
Jews which is drawn in the Aramaic language,
uniformly worded and carefully written by a prop-
er scribe, and after proper ceremonies and ques-
tionings by the rabbi, especially as to whether
both parties agree to the divorce, the husband
hands to the wife in the presence of ten witness-
es. Shilman v. Shilman, 105 Misc. 461, 174 N.Y.S.
385, 386.
GEVILLOURIS. In old Scotch law. Gaolers. 1
Pitc.Crim.Tr. pt. 2, p. 234.
GEWINEDA. In Saxon law, the ancient conven-
tion of the people to decide a cause.
GEWITNESSA. In Saxon and old English law,
the giving of evidence.
GEWRITE. In Saxon law, deeds or charters;
writings. 1 Reeve, Eng.Law 10.
GIBBET. A gallows; the post on which malefac-
tors are hanged, or on which their bodies are ex-
posed. It differs from a common gallows, in that
it consists of one perpendicular post, from the top
of which proceeds one arm, except it be a double
gibbet, which is formed in the shape of the Roman
capital T. Enc.Lond.
GIBBET LAW. Lynch law; in particular a cus-
tom anciently prevailing in the parish of Halifax,
England, by which the free burghers held a sum-
mary trial of any one accused of petit larceny,
and, if they found him guilty, ordered him to be de-
capitated.
GIFT. A voluntary transfer of personal property
without consideration. Gordon v. Barr, Cal.App.,
82 P.2d 955, 956, 957. A parting by owner with
property without pecuniary consideration. Hays'
Adm'rs v. Patrick, 266 Ky. 713, 99 S.W.2d 805, 809.
A voluntary conveyance of land, or transfer of
goods, from one person to another, made gratui-
tously, and not upon any consideration of blood or
money. 2 Bl.Comm. 440; 2 Steph.Comm. 102; 2
Kent, Comm. 437. Ingram v. Colgan, 106 Cal. 113,
38 P. 315, 28 L.R.A. 187, 46 Am.St.Rep. 221; Gray
v. Barton, 55 N.Y. 72, 14 Am.Rep. 181; Hynes v.
White, 47 Cal.App. 549, 190 P. 836, 838; In re Van
Alstyne, 207 N.Y. 298, 100 N.E. 802, 804.
Essential requisites of "gift" are capacity of donor,
intention of donor to make gift, completed delivery to or
for donee, and acceptance of gift by donee. In re Green-
berg's Will, 286 N.Y.S. 56, 58, 158 Misc. 446.
In popular language, a voluntary conveyance or assign-
ment is called a "deed of gift"
An "advancement" is a gift made with the intention that
it shall be charged to the donee in the distribution of the
donor's estate, while a "gift" is made without any purpose
that it shall be thereafter accounted for. Hon v. Connelly,
253 Ky. 181, 69 S.W.2d 23.
An absolute gift, or gift inter vivos, as distinguished from
a testamentary gift, or one made in contemplation of death,
is one by which the donee becomes in the lifetime of the
donor the absolute owner of the thing given, whereas a
donatio mortis causa leaves the whole title in the donor,
unless the event occurs (the death of the donor) which is
to divest him. Buecker v. Carr, 60 N.J.Eq. 300, 47 A. 34;
Goodan v. Goodan, 184 Ky. 79, 211 S.W. 423, 424; Baker v.
Baker, 123 Md. 32, 90 A. 776, 779; McCoy v. Shawnee
Building & Loan Ass'n, 122 Kan. 38, 251 P. 194, 195, 49
A.L.R. 1441; First Nat. Bank v. Liberty Trust Co., 151
Md. 241, 134 A. 210, 213, 47 A.L.R. 730; Starks v. Lincoln,
316 Mo. 483, 291 S. W. 132, 134.
As distinguished from a gift In trust, it is one where not
only the legal title but the beneficial ownership as well is
vested in the donee. Watkins v. Bigelow, 93 Minn. 210,
100 N.W. 1104; Allen v. Hendrick, 104 Or. 202, 206 P. 733,
740.
The only important difference between a "gift" and a
"voluntary trust" is that in the case of a gift the thing
itself passes to the donee, while in the case of a trust the
actual, beneficial, or equitable title passes to the cestui que
trust, while the legal title is transferred to a third person,
or retained by the person creating it. In re Alberts' Estate,
38 Cal.App.2d 42, 100 P.2d 538, 540.
In English law, a conveyance of lands in tail;
a conveyance of an estate tail in which the op-
erative words are "I give," or "I have given."
2 Bl.Comm. 316; 1 Steph.Comm. 473.
-Gift in Default of Appointment. One implied on
failure of donee to exercise a power of appoint-
ment where it was his duty to do so or where do-
nor expresses an intention to make a legal gift to
members of class in default of appointment. Re-
statement, Real Property, vol. 3, Topic 9, § 367.
GIFT CAUSA MORTIS. A gift of personalty
made in expectation of death, then imminent, on an
essential condition that property shall belong fully
to donee in case donor dies as anticipated, leaving
donee surviving him, and gift is not in meantime
revoked. Flint v. Varney, 220 Iowa 1241, 264 N.W.
277, 278, 279.
GIFT DEED. A deed for a nominal sum. Bertel-
sen v. Bertelson, 49 Cal.App.2d 479, 122 P.2d 130,
133.
GIFT ENTERPRISE. A scheme for the division
or distribution of articles to be determined by
chance amongst those who have taken shares in
the scheme. City of Oxford v. Ritz Theatre, Miss.,
180 So. 88, 89; State v. Shugart, 138 Ala. 86, 35
So. 28, 100 Am.St.Rep. 17; Winston v. Beeson, 135
N.C. 271, 47 S.E. 457, 65 L.R.A. 167.
A sporting artifice by which, for example, a merchant or
tradesman sells his wares for their market value, but, by
way of inducement, gives to such purchaser a ticket which
entitles him to a chance to win certain prizes to be deter-
mined after the manner of a lottery. Code 1933, § 26-6501.
Barker v. State, 56 Ga.App. 705, 193 S.E. 605, 607, 609.
GIFTS INTER VIVOS. Gifts between the living,
which are perfected and become absolute during
lifetime of donor and donee. Neal v. Neal, 194
Ark. 226, 106 S.W.2d 595, 600.
GIFT OVER. A gift to one for life, and from and
after his deceased to another, created a "gift over."
In re Feeney's Estate, 293 Pa. 273, 142 A. 284, 289.
GIFT TO A CLASS. A gift of aggregate sum to
body of persons uncertain in number at time of
gift, to be ascertained at future time, who are all
to take in equal shares, or some other definite pro-
portion; share of each being dependent for its
amount upon ultimate number taking. In re Mur-
phy's Estate, 99 Mont. 114, 43 P.2d 233, 236; Wess-
borg v. Merrill, 195 Mich. 556, 162 N.W. 102, 106,
L.R.A.1918E, 1074; Blackstone v. Althouse, 278 Ill.
481, 116 N.E. 154, 157, L.R.A.1918B, 230.
Black's Law Dictionary Revised 4th Ed.-52
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GIFTA
GIFTA AQUAE. The stream of water to a mill.
Mon.Angl. tom. 3.
GIFTOMAN. In Swedish law, the right to dis-
pose of a woman in marriage, or the person pos-
sessing such right,—her father, if living, or, if
he be dead, the mother.
GILD. In Saxon law, a tax or tribute. Spelman.
A fine, mulct, or amerciament ; a satisfaction or
compensation for an injury.
A fraternity, society, or company of persons
combined together, under certain regulations, and
with the king's license, and so called because its
expenses were defrayed by the contributions (geld,
gild) of its members. Spelman. In other words,
a corporation; called, in Latin, "societal," "col-
legium," "f ratria," "f raternitas," "sodalitium,"
"adunatio;" and, in foreign law, "gildonia." Spel-
man. There were various kinds of these gilds,
as merchant or commercial gilds, religious gilds,
and others. 3 Turn.Anglo Sax. 98; 3 Steph.Comm.
173, note u. See Gilda Mercatoria.
A friborg, or decennary; called, by the Saxons,
"gyldscipes," and' its members, "gildones" and
"congildones." Spelman.
GILD-HALL. See Guildhall.
GILD-RENT. Certain payments to the crown
from any gild or fraternity.
GILDA MERCATORIA. A gild merchant, or mer-
chant gild; a gild, corporation, or company of
merchants. 10 Coke, 30.
GILDABLE. In old English law, taxable, tribu-
tary, or contributory; liable to pay tax or tribute.
Cowell; Blount.
GILDO. In Saxon law, members of a gild or de-
cennary. Oftener spelled "congildo." Du Cange;
Spelman.
GILL. A measure of capacity, equal to one-fourth
of a pint.
GILOUR. L. Fr. A cheat or deceiver. Applied in
Britton to those who sold false or spurious things
for good, as pewter for silver or laten for gold.
Britt. c. 15.
GILT EDGE. As applied to commercial paper, a
colloquialism, meaning of the best quality or high-
est price, first class, and not implying that a note
which is not gilt edge is not collectible, or that
the maker is irresponsible. Martin v. Moreland,
93 Or. 61, 180 P. 933, 934.
GIN MEN. In mining. Men employed in coal
mines who have no specific work to do, but are
hired to do general work, or any kind of work
they are directed to do. The word "gin" in this
expression is apparently a contraction of the word
"general." Smith v. North Jellico Coal Co., 114
S.W. 785, 786, 131 Ky. 196, 28 L.R.A.N.S. 1266.
GINNING ADVANCES. Include cost to grower of
picking crop, wages of weigher, rent of sleeping
tents for pickers, and cost of trucking cotton from
field to gin and other such expenses. Schumann
v. California Cotton Credit Corporation, 105 Cal.
App. 136, 286 P. 1068, 1070.
GIRANTE. An Italian word, which signifies the
drawer of a bill. It is derived from "girare," to
draw.
GIRDLE, v. To "girdle" a tree for the purpose
of obtaining crude turpentine is to cut off a ring
of bark around the trunk. Howard v. State, 17
Ala.App. 9, 81 So. 345, 346.
GIRTH. In Saxon and old English law, a measure
of length, equal to one yard, derived from the girth
or circumference of a man's body.
GIRTH AND SANCTUARY. In old Scotch law,
an asylum given to murderers, where the murder
was committed without any previous design, and
in chaude mella, or heat of passion. Bell.
GISEMENT. L. Fr. Agistment; cattle taken in
to graze at a certain price; also the money re-
ceived for grazing cattle.
GISER. L. Fr. To lie. Gist en le bouche, it lies
in the mouth. Le action biers gist, the action well
lies. Gisant, lying.
GISETAKER. An agister; a person who takes
cattle to graze.
GISLE. In Saxon law, a pledge. Fredgisle, a
pledge of peace. Gislebert, an illustrious pledge.
GIST. In pleading, the essential ground or object
of the action in point of law, without which there
would be no cause of action. Gould, Pl. c. 4, § 12.
The cause for which an action will lie, the
ground or foundation of a suit, without which it
would not be maintainable, the essential ground
or object of the suit without which there is no
cause of action. Casavalo v. D'Auria, 12 N.J.
Misc. 81, 169 A. 520.
GIVE. To transfer ownership or possession with-
out compensation. University of Vermont v. Wil-
bur's Estate, 105 Vt. 147, 163 A. 572, 575. To be-
stow upon another gratuitously or without consid-
eration. Neblett v. Smith, 142 Va. 840, 128 S.E. 247,
251.
To transfer or yield to, or bestow upon, another. One of
the operative words in deeds of conveyance of real prop-
erty, importing at common law, a warranty or covenant for
quiet enjoyment during the lifetime of the grantor. Mack
v. Patchin, 29 How.Prac., N.Y., 23; Young v. Hargrave, 7
Ohio, 69, pt. 2; Dow v. Lewis, 4 Gray, Mass., 473.
GIVE AND BEQUEATH. These words, in a will,
import a benefit in point of right, to take effect up-
on the decease of the testator and proof of the will,
unless it is made in terms to depend upon some
contingency or condition precedent. Eldridge v.
Eldridge, 9 Cush., Mass., 519.
GIVE BAIL. To furnish or put in bail or security
for one's appearance.
GIVE COLOR. To admit an apparent or colorable
right in the opposite party.
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GLOSSA
Under the ancient system a plea of confession and avoid-
ance must give color to the affirmative averments of the
complaint, or it would be fatally defective. The "giving
color" was simply the absence of any denials, and the
express or silent admission that the declaration, as far as
it went, told the truth. Smith v. Marley, 39 Idaho, 779,
230 P. 769, 770. See Color.
GIVE JUDGMENT. To render, pronounce, or de-
clare the judgment of the court in an action at
law; not spoken of a judgment obtained by con-
fession. Schuster v. Rader, 13 Colo. 329, 22 P.
505.
GIVE NOTICE. To communicate to another, in
any proper or permissible legal manner, Informa-
tion or warning of an existing fact or state of
facts or (more usually) of some intended future
action. O'Neil v. Dickson, 11 Ind. 254; In re
Devlin, 7 Fed.Cas. 564; St. Louis, B. & M. Ry. Co.
v. Hicks, Tex.Civ.App., 158 S.W. 192, 194.
GIVE TIME. Extending the period at which, by
the contract between them, the principal debtor
was originally liable to pay the creditor. Buffalo
Forge Co. v. Fidelity & Casualty Co. of New York,
142 Misc. 647, 256 N.Y.S. 329, 334.
GIVE WAY. In the rules of navigation, one ves-
sel is said to "give way" to another when she de-
viates from her course in such a manner and to
such an extent as to allow the other to pass with-
out altering her course. See Lockwood v. Lashell,
19 Pa. 350.
GIVER. A donor; he who makes a gift.
GIVING IN PAYMENT. In Louisiana law, a
phrase (translating the Fr. "dation en paiement")
which signifies the delivery and acceptance of
real or personal property in satisfaction of a debt,
instead of a payment in money. See Civil Code
La. art. 265.
GIVING RINGS. A ceremony anciently perform-
ed in England by serjeants at law at the time of
their appointment. The rings were inscribed with
a motto, generally in Latin.
GLADIOLUS. A little sword or dagger; a kind
of sedge. Mat. Paris.
GLADIUS. Lat. A sword. An ancient emblem
of defense. Hence the ancient earls or comites
(the king's attendants, advisers, and associates
in his government) were made by being girt with
swords, (gladio succincti.)
The emblem of the executory power of the law
in punishing crimes. 4 Bl.Comm. 177.
In old Latin authors, and in the Norman laws,
this word was used to signify supreme jurisdic-
tion, (jus gladii.)
GLAIVE. A sword, lance, or horseman's staff.
One of the weapons allowed in a trial by combat.
GLANS. In the civil law, acorns or nuts of the
oak or other trees. In a larger sense, all fruits
of trees.
GLASS—MEN. A term used in St. 1 Jac. I, c. 7,
for wandering rogues or vagrants.
GLAVEA. A hand dart. Cowell.
GLEANING. The gathering of grain after reap-
ers, or of grain left ungathered by reapers. Held
not to be a right at common law. 1 H.B1. 51.
GLEBA. A turf, sod, or clod of earth. The soil
or ground; cultivated land in general. Church
land (solum et dos ecclesice). Spelman. See
Glebe.
GLEBIE ASCRIPTITII. Villein-socmen, who
could not be removed from the land while they
did the service due. Bract. c. 7; 1 Reeve, Eng.
Law, 269.
GLEBARI2E. Turfs dug out of the ground.
Cowell.
GLEBE. In Ecclesiastical law, the land possessed
as part of the endowment or revenue of a church
or ecclesiastical benefice.
In Roman law, a clod; turf; soil. Hence, the
soil of an inheritance; an agrarian estate. Servi
addicti glebe were serfs attached to and passing
with the estate. Cod. 11, 47, 7, 21; Nov. 54, 1.
GLIDER. A form of aircraft similar to an air-
plane but without any engine. Spychala v. Metro-
politan Life Ins. Co., 339 Pa. 237, 13 A.2d 32, 33.
GLIDING. Art of flying a glider. Spychala v.
Metropolitan Life Ins. Co., 339 Pa. 237, 13 A.2d
32, 33.
GLISCYWA. In Saxon law, a fraternity.
GLOBE DOCTRINE. That where the National
Labor Relations Board could conclude that either
a craft or a plant unit would be appropriate for
collective bargaining purposes and where either
contention if unopposed would be adopted by the
Board, it normally gives paramount weight to the
wishes of the employees within the craft unit.
International Ass'n of Machinists, Tool and Die
Makers' Lodge No. 35 v. National Labor Relations
Board, 71 App.D.C. 175, 110 F.2d 29, 45.
GLOMERELLS. Commissioners appointed to de-
termine differences between scholars in a school
or university and the townsmen of the place.
Jacob.
GLOS. Lat. In the civil law, a husband's sister.
Dig. 38, 10, 4, 6.
GLOSS. An interpretation, consisting of one or
more words, interlinear or marginal; an annota-
tion, explanation, or comment on any passage in
the text of a work, for purposes of elucidation or
amplification. Particularly applied to the com-
ments on the Corpus Juris.
GLOSSA. Lat. A gloss, explanation, or inter-
pretation.
The glossce of the Roman law are brief illustrative com-
ments or annotations on the text of Justinian's collections,
made by the professors who taught or lectured on them
about the twelfth century, (especially at the law school of
Bologna,) and were hence called "glossators."  These
glosses were at first inserted in the text with the words to
which they referred, and were called "glossce interline-
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ares;" but afterwards they were placed in the margin,
partly at the side, and partly under the text, and called
"glossce marginales." A selection of them was made by
Accursius, between A. D. 1220 and 1260, under the title of
"glossa Ordinaria," which is of the greatest authority.
Mackeld.Rom.Law, § 90.
GLOSSA VIPERINA EST QUIE CORRODIT VIS-
CERA TEXTUS. 11 Coke, 34. It is a poisonous
gloss which corrupts the essence of the text.
GLOSSATOR. In the civil law, a commentator
or annotator. A term applied to the professors
and teachers of the Roman law in the twelfth
century, at the head of whom was Irnerius. Mac-
keld. Rom. Law, § 90.
GLOUCESTER, STATUTE OF. The statute is
the 6 Edw. I, c. 1, A.D. 1278. It takes its name
from the place of its enactment, and was the first
statute giving costs in actions.
GLOVE SILVER. Extraordinary rewards former-
ly given to officers of courts, etc.; money formerly
given by the sheriff of a county in which no of-
fenders are left for execution to the clerk of as-
size and judges' officers. Jacob.
GLOVES. It was an ancient custom on a maiden
assize, when there was no offender to be tried, for
the sheriff to present the judge with a pair of
white gloves. It is an immemorial custom to re-
move the glove from the right hand on taking
oath. Wharton.
GLYN. A hollow between two mountains; a val-
ley or glen. Co.Litt. 5b.
GO. To be dismissed from a court. To issue
from a court. "The court said a mandamus must
go." 1 W.B1. 50. "Let a supersedeas go." 5 Mod.
421 "The writ may go." 18 C.B. 35.
GO BAIL. To assume the responsibility of a
surety on a bail-bond.
GO FIFTY-FIFTY. Division into halves of some-
thing under discussion by the parties at the time.
Boyer v. Bowles, 310 Mass. 134, 37 N.E.2d 489, 493.
GO HENCE. To depart from the court; with the
further implication that a suitor who is directed
to "go hence" is dismissed from further attend-
ance upon the court in respect to the suit or pro-
ceeding which brought him there, and that he is
finally denied the relief which he sought, or, as
the case may be, absolved from the liability sought
to be imposed upon him. See Hiatt v. Kinkaid, 40
Neb. 178, 58 N.W. 700.
GO TO. In a statute, will, or other instrument, a
direction that property shall "go to" a designated
person means that it shall pass or proceed to such
person, vest in and belong to him. In re Hitchins'
Estate, 43 Misc. 485, 89 N.Y.S. 472; Plass v. Plass,
121 Cal. 131, 53 P. 448.
GO TO PROTEST. Commercial paper is said to
"go to protest" when it is dishonored by non-
payment or non-acceptance and is handed to a no-
tary for protest.
GO WITHOUT DAY. Words used to denote that
a party is dismissed the court. He is said to go
without day, because there is no day appointed
for him to appear again.
GOAF. In coal mining a space from which ma-
terial has been removed or the waste left in old
work. Harlan Ridgeway Mining Co. v. Jackson,
278 Ky. 767, 129 S.W.2d 585, 586.
GOAT, GOTE. In old English law, a contrivance
or structure for draining waters out of the land in-
to the sea. Callis describes goats as "usual en-
gines erected and built with portcullises and doors
of timber and stone or brick, invented first in Low-
er Germany." Callis, Sewers, (91), 112, 113. Cow-
ell defines "gote," a ditch, sewer, or gutter.
GOB. In coal mining a space from which mate-
rial has been removed or the waste left in old
work. Harlan Ridgeway Mining Co. v. Jackson,
278 Ky. 767, 129 S.W.2d 585, 586. Space between
face of coal and where props had been set by ma-
chine operators on previous trip. New Union
Coal Co. v. Suit, 172 Ark. 753, 290 S.W. 580, 581
GOD AND MY COUNTRY. The answer made
by a prisoner, when arraigned, in answer to the
question, "How will you be tried?"
In the ancient practice he had the choice (as appears by
the question) whether to submit to the trial by ordeal (by
God) or to be tried by a jury, (by the country;) and it is
probable that the original form of the answer was, "By
God or my country," whereby the prisoner averred his
innocence by declining neither of the modes of trial.
GOD-BOTE. An ecclesiastical or church fine paid
for crimes and offenses committed against God.
Cowell.
GOD-GILD. That which is offered to God or his
service. Jacob.
GOD'S PENNY. In old English law, earnest-mon-
ey; money given as evidence of the completion of
a bargain. This name is probably derived from
the fact that such money was given to the church
or distributed in alms.
GOGING-STOLE. An old form of the word "cuck-
ing-stool" (q. v.). Cowell.
GOING. In various compound phrases (as those
which follow) this term implies either motion,
progress, active operation, or present and continu-
ous validity and efficacy.
GOING AND COMING RULE. Declares that em-
ployees while going to or returning from their
places of employment are not within the scope of
their employment. Robinson v. George, 16 Cal.
2d 238, 105 P.2d 914, 917, 918.
GOING BEFORE THE WIND. In the language
of mariners and in the rules of navigation, a ves-
sel is said to be going "before the wind" when the
wind is free as respects her course, that is, comes
from behind the vessel or over the stern, so that
her yards may be braced square across. She is
said to be "going off large" when she has the' wind
free on either tack, that is, when it blows from
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some point abaft the beam or from the quarter.
Hall v. The Buffalo, 11 Fed.Cas. 216; Ward v. The
Fashion, 29 Fed.Cas. 188.
GOING CONCERN. An enterprise which is be-
ing carried on as a whole, and with some particu-
lar object in view. The term refers to an exist-
ing solvent business, which is being copducted in
the usual and ordinary way for which it was or-
ganized. When applied to a corporation, it means
that it continues to transact its ordinary business.
State ex rel. Sorensen v. Lincoln Hail Ins. Co.,
133 Neb. 496, 276 N.W. 169, 174. A firm or cor-
poration which, though embarrassed or even in-
solvent, continues to transact its ordinary busi-
ness. White, etc., Mfg. Co. v. Pettes Importing
Co., C.C.Mo., 30 F. 865; Corey v. Wadsworth, 99
Ala. 68, 11 So. 350, 23 L.R.A. 618, 42 Am.St.Rep.
55; Pioneer Telephone & Telegraph Co. v. State,
64 Old. 304, 167 P. 995, 1000, L.R.A.1918C, 138;
City and County of Denver v. Denver Union Wa-
ter Co., 246 U.S. 178, 38 S.Ct. 278, 62 L.Ed. 649.
GOING CONCERN VALUE. The value which in-
heres in a plant where its business is established,
as distinguished from one which has yet to estab-
lish its business. East Bay Water Co. v. Mc-
Laughlin, D.C.Cal., 24 F.Supp. 222, 226.
GOING INTO EFFECT OF ACT. Becoming oper-
ative as a law. State ex rel. Bishop v. Board of
Education of Mt. Orab Village School Dist., Brown
County, 139 Ohio St. 427, 40 N.E.2d 913, 919.
GOING OFF LARGE. See "Going Before the
Wind," supra.
GOING PRICE. The prevalent price; the cur-
rent market value of the article in question at the
time and place of sale. Kelsea v. Haines, 41 N.H.
254; Hoff v. Lodi Canning Co., 51 Cal.App. 299,
196 P. 779, 780.
GOING THROUGH THE BAR. The act of the
chief of an English common-law court in demand-
ing of every member of the bar, in order of sen-
iority, if he has anything to move.
This was done at the sitting of the court each day in
term, except special paper days, crown paper days in the
queen's bench, and revenue paper days in the exchequer.
On the last day of term this order is reversed, the first and
second time round. In the exchequer the postman and tub-
man are first called on. Wharton.
GOING TO THE COUNTRY. When a party, un-
der the common-law system of pleading, finished
his pleading by the words "and of this he puts
himself upon the country," this was called "going
to the country." It was the essential termination
of a pleading which took issue upon a material
fact in the preceding pleading. Wharton.
GOING VALUE. A value or asset which arises
from having an established or going business.
Southern Bell Telephone & Telegraph Co. v. Louis-
iana Public Service Commission, 187 La. 137, 174
So. 180, 195. Oshkosh Waterworks Co. v. Railroad
Commission of Wisconsin, 161 Wis. 122, 152 N.W.
859, 861, L.R.A.1916F, 592; Public Service Gas Co.
v. Board of Public Utility Com'rs, 84 N.J.L. 463,
87 A. 651, 657, L.R.A.1918A, 421. •
GOING WITNESS. One who is about to take
his departure from the Jurisdiction of the court,
although only into a state or country under the
general sovereignty; as from one to another of
the United States, or from England to Scotland.
GOLD BOND. One payable in gold coin or its
equivalent, which means any money acceptable to
United States government in payment of debts
due it. Huron Lodge No. 444, B. P. 0. E. v. Mc-
Namara, 53 S.D. 153, 220 N.W. 468, 470.
GOLDA. A mine. Blount. A sink or passage
for water. Cowell.
GOLDSMITHS' NOTES. Bankers' cash notes (i.
e., promissory notes given by a banker to his
customers as acknowledgments of the receipt of
money) were originally called in London "gold-
smiths' notes," from the circumstance that all the
banking business in England was originally trans-
acted by goldsmiths. Wharton.
GOLDWIT. A mulct or fine in gold.
GOLIARDUS. L. Lat. A jester, buffoon, or
juggler. Spelman, voc. "Goliardensis."
GOMASHTAH. In Hindu law, an agent; a stew-
ard; a confidential factor; a representative.
GONORRHCEA. In medical jurisprudence, a ven-
ereal disease, characterized by a purulent inflam-
mation of the urethra in the male and the vagina
in the female. Vulgarly called "clap." Sally v.
Brown, 220 Ky. 576, 295 S.W. 890, 891.
GOOD. Valid; sufficient in law; effectual; unob-
jectionable;  sound. Morrison v. Farmers' &
Traders' State Bank, 70 Mont. 146, 225 P. 123, 125;
McNabb v. Juergens (Iowa) 180 N.W. 758, 761;
Raney & Hamon v. Hamilton & White, Tex.Civ.
App., 234 S.W. 229, 230.
Responsible; solvent; able to pay an amount
specified.
Of a value corresponding with its terms; col-
lectible. A note is said to be "good" when the
payment of it at maturity may be relied on. Cur-
tis v. Smallman, 14 Wend., N.Y., 232; Cooke v.
Nathan, 16 Barb., N.Y., 344; In re Parker Bros.
& Johnson, D.C.N.C., 279 F. 425, 428.
Writing the word "Good" across the face, of a check is
the customary mode in which bankers at the present day
certify that the drawer has funds to meet it, and that it
will be paid on presentation for that purpose. Merchants'
Nat. Bank v. State Nat. Bank, 10 Wall. 645, 19 L.Ed. 1008;
Irving Bank v. Wetherald, 36 N.Y. 335.
Public good. Under a statute providing that the Public
Service Commission shall make an order permitting a trans-
fer of the property of a public utility, when it is for the
public good, such transfer is for the public good whenever
it is not contrary to law and is reasonable, since it is not
for the public good that such utilities be unreasonably
restrained of their liberties. Grafton County Electric Light
& Power Co. v. State, 77 N.H. 539, 94 A. 193, 194.
GOOD ABEARING. See Abearance.
GOOD AND CLEAR RECORD TITLE, FREE
FROM ALL INCUMBRANCES. A title which on
the record itself can be again sold as free from
obvious defects and substantial doubts, and differs
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from a "good, marketable title," which is an ac-
tual title, but which may be established by evi-
dence independently of the record. O'Meara v.
Gleason, 246 Mass. 136, 140 N.E. 426, 427.
GOOD AND LAWFUL MEN. Those qualified for
service on juries. Bonds v. State, Mart. & Y.,
Tenn. 146, 17 Am.Dec. 795; Turner v. State, 128
Tenn. 27, 157 S.W. 67, 68, Ann.Cas.1914D, 693.
GOOD AND SUBSTANTIAL DEPOT. A depot
suitable to take care of both passenger and freight
business. Louisville & N. R. Co. v. Letcher Coun-
ty Coal & Improvement Co., 195 Ky. 29, 243 S.W.
45, 48.
GOOD AND SUFFICIENT BRAKES. Brakes
adequate to promptly check and slacken speed of
motor vehicle and bring it to complete stop (Comp.
St.1922, § 8395). Ziskovsky v. Miller, 120 Neb.
255, 231 N.W. 809, 811.
GOOD AND VALID. Reliable, sufficient, and un-
impeachable in law; adequate; responsible.
GOOD AND WORKMANLIKE MANNER. In a
manner generally considered skillful by those ca-
pable of judging such work in the community of
the performance. Burnett & Bean v. Miller, 205
Ala. 606, 88 So. 871, 872; Morris v. Fox, 79 Ind.
App. 389, 135 N.E. 663, 664.
GOOD BEHAVIOR. Orderly and lawful conduct;
behavior such as is proper for a peaceable and
law-abiding citizen. Huyser v. Com., 25 Ky.L.
Rep. 608, 76 S.W. 175; In re Spenser, 22 Fed.Cas.
921. "Good behavior," as used in an order sus-
pending sentence upon a defendant during good
behavior, means merely conduct conformable to
law, or to the particular law theretofore breached.
Ex parte Hamm, 24 N.M. 33, 172 P. 190, 191, L.R.
A.1918D, 694; Baker v. Commonwealth, 181 Ky.
437, 205 S.W. 399, 401.
GOOD CAUSE. Substantial reason, one that af-
fords a legal excuse. Pines v. District Court in
and for Woodbury County, 233 Iowa 1284, 10 N.
W.2d 574, 580, 583. Legally sufficient ground or
reason. Jackson v. U. S., C.C.A.Ariz., 295 F. 620,
622; Lockwood v. Lockwood, 19 Ariz. 215, 168 P.
501, 502.
As respects discharging employees in classified service,
"good cause" includes any ground which is put forward by
authorities in good faith and which is not arbitrary, irra-
tional, unreasonable or irrelevant to the duties with which
such authorities are charged, and is not limited to some
form of inefficiency or of misconduct on the part of the
person dismissed. Nephew v. Wills, 298 Mich. 187, 298
N.W. 376, 377, 135 A.L.R. 1340.
As respects Industrial Accident Commission's rescinding
its decision, "good cause" included a mistake of law, unless
the award had been sustained on appeal. Stearns Coal &
Lumber Co. v. Vanover, 262 Ky. 808, 91 S.W.2d 518.
"Good cause" for extension of time in which to serve bill
of exceptions exists if delay was for good reason, or that
there was justification or excuse for the delay. Kisten v.
Kisten, 229 Wis. 479, 282 N.W. 629, 632.
GOOD CONSIDERATION. "Good consideration"
and "valuable consideration" are synonymous
terms, although technically "good consideration"
was defined as consideration of blood, or natural
love and affection; that founded on motives of
generosity, prudence, and natural duty. Belknap
v. Northwestern Mut. Life Ins. Co., 108 Vt. 421,
188 A. 897, 899.
GOOD COUNTRY. In Scotch law, good men of
the country. A name given to a jury.
GOOD FAITH. Honesty of intention, and free-
dom from knowledge of circumstances which
ought to put the holder upon inquiry. Siano v.
Helvering, D.C.N.J., 13 F.Supp. 776, 780. An hon-
est intention to abstain from taking any uncon-
scientious advantage of another, even through
technicalities of law, together with absence of all
information, notice, or benefit or belief of facts
which render transaction unconscientious. War-
field Natural Gas Co. v. Allen, 248 Ky. 646, 59 S.
W.2d 534, 91 A.L.R. 890; Crouch v. First Nat.
Bank, 156 Ill. 342, 40 N.E. 974; Waugh v. Prince,
121 Me. 67, 115 A. 612, 614.
GOOD HEALTH. "Good health," as employed in
insurance contract, ordinarily means a reasonably
good state of health. Kroon v. Travelers' Ins.
Co., 290 Ill.App. 35, 7 N.E.2d 935, 937. It means
that the applicant has no grave, important, or ser-
ious disease, and is free from any ailment that
seriously affects the general soundness and health-
fulness of the system. Mincy v. Washington Nat.
Ins. Co., 130 Pa.Super. 285, 196 A. 893, 897. Not
mere temporary indisposition not tending to weak-
en or undermine constitution. Zogg v. Bankers'
Life Co. of Des Moines, Iowa, C.C.A.W.Va., 62 F.
2d 575, 578. It does not mean a condition of per-
fect health. White v. Sovereign Camp, W. 0. W.,
184 S.C. 215, 192 S.E. 161, 165.
GOOD JURY. A jury of which the members are
selected from the list of special jurors. See L.R.
5 C.P. 155.
GOOD, MERCHANTABLE ABSTRACT OF TI-
TLE. An abstract showing a good title, clear
from incumbrances, and not merely an abstract
of matters of record affecting the title, made by
one engaged in the business of making abstracts in
such form as is customary, as passing current
among persons buying and selling real estate and
examining titles. Geithman v. Eichler, 265 Ill.
579, 107 N.E. 180, 182.
GOOD OF SERVICE. Discharge of a civil serv-
ice employee for "good of the service" or "for
cause" implies some personal misconduct, or fact,
rendering incumbent's further tenure harmful to
the public interest. State ex rel. Eckles v. Kansas
City, Mo.App., 257 S.W. 197, 200.
GOOD RECORD TITLE. A "good record title,"
without words of limitation, means that the prop-
er records shall show an unincumbered, fee-simple
title, the legal estate in fee, free and clear of all
valid claims, liens, and incumbrances. Riggins v.
Post, Tex.Civ.App., 172 S.W. 210, 211.
GOOD REPUTE. An expression, synonymous
with and meaning only "of good reputation."
State v. Wheeler, 108 Mo. 658, 665, 18 S.W. 924.
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GOOD SAMARITAN DOCTRINE. One who sees
a person in imminent and serious peril through
negligence of another cannot be charged with con-
tributory negligence, as a matter of law, in risk-
ing his own life or serious injury in attempting
to effect a rescue, provided the attempt is not
recklessly or rashly made. Jobst v. Butler Well
Servicing, Inc., 372 P.2d 55, 59, 190 Kan. 86. Un-
der doctrine, negligence of a volunteer rescuer
must worsen position of person in distress before
liability will be imposed. U. S. v. DeVane, C.A.
Fla., 306 F.2d 182, 186.
GOOD TITLE. One free from reasonable doubt,
that is, not only a valid title in fact, but one that
can again be sold to a reasonable purchaser or
mortgaged to a person of reasonable prudence.
Langford v. Berry, 68 Ga.App. 193, 22 S.E.2d 349,
351, a title free from litigation, palpable defects
and grave doubts. Collins v. Martin, Tex.Civ.
App., 6 S.W.2d 126, 128; Williams v. Hefner, 89
Mont. 361, 297 P. 492, 496.
GOOD WILL. The favor which the management
of a business wins from the public. Seneca Ho-
tel Co. v. U. S., Ct.C1., 42 F.2d 343, 344. The fixed
and favorable consideration of customers arising
from established and well-conducted business.
Colton v. Duvall, 254 Mich. 346, 237 S.W.2d 48, 49.
The favorable consideration shown by the pur-
chasing public to goods known to emanate from
a particular source. White Tower System v.
White Castle System of Eating Houses Corpora-
tion, C.C.A.Mich., 90 F.2d 67, 69. Something in
business which gives reasonable expectancy of
preference in race of competition. In re Witkind's
Estate, 167 Misc. 885, 4 N.Y.S.2d 933, 947. The cus-
tom or patronage of any established trade or busi-
ness; the benefit or advantage of having estab-
lished a business and secured its patronage by the
public. The advantage or benefit which is ac-
quired by an establishment, beyond the mere value
of the capital, stocks, funds, or property employed
therein, in consequence of the general public pat-
ronage and encouragement which it receives
from constant or habitual customers, on account
of its local position, or common celebrity, or rep-
utation for skill or affluence or punctuality, or
from other accidental circumstances or necessi-
ties, or even from ancient partialities or preju-
dices. Story, Partn. § 99; Haverly v. Elliott, 39
Neb. 201, 57 N.W. 1010. And as property inci-
dent to business sold, favor vendor has won from
public, and probability that all customers will
continue their patronage. Nye Odorless Incin-
erator Corporation v. Felton, 5 W.W.Harr. 236,
162 A. 504, 511. It means every advantage, every
positive advantage, that has been acquired by a
proprietor in carrying on his business, whether
connected with the premises in which the business
is conducted, or with the name under which it is
managed, or with any other matter carrying with
it the benefit of the business. Glen & Hall Mfg.
Co. v. Hall, 61 N.Y. 226, 19 Am.Rep. 278; In re
Ball's Estate, 161 App.Div. 79, 146 N.Y.S. 499,
501; Whittle v. Davie, 116 Va. 575, 82 S.E. 724.
726; Acme, Palmers & De Mooy Foundry Co. v.
Weiss, D.C.Ohio, 21 F.2d 492, 493.
GOODRIGHT, GOODTITLE. The fictitious plain-
tiff in the old action of ejectment, most fre-
quently called "John Doe," was sometimes called
"Goodright" or "Goodtitle."
GOODS. A term of variable content. It may
include every species of personal property or it
may be given a very restricted meaning. Cate
v. Merrill, 116 Me. 235, 102 A. 235, 236, 237; Can-
ales v. Earl, Mun.Ct.N.Y., 168 N.Y.S. 726, 727.
In contracts, the term "goods" is not so wide
as "chattels," for it applies to inanimate objects,
and does not include animals or chattels real, as a
lease for years of house or land, which "chattels"
does include. Co. Litt. 118; St. Joseph Hydraulic
Co. v. Wilson, 133 Ind. 465, 33 N.E. 113; Putnam
v. Westcott, 19 Johns, N.Y., 76.
In wills, "goods" is nomen generalissimum, and,
if there is nothing to limit it, will comprehend all
the personal estate of the testator, as stocks,
bonds, notes, money, plate, furniture, etc. Ken-
dall v. Kendall, 4 Russ. 370; Chamberlain v. West-
ern Transp. Co., 44 N.Y. 310, 4 Am.Rep. 681; Key-
ser v. School Dist., 35 N.H. 483.
GOODS AND CHATTELS. This phrase is a gen-
eral denomination of personal property, as dis-
tinguished from real property; the term "chat-
tels" having the effect of extending its scope to
any objects of that nature which would not prop-
erly be included by the term "goods" alone, e. g.,
living animals, emblements, and fruits, and terms
under leases for years. Larson v. Judd, 200 Ill.
App. 420. The general phrase also embraces
choses in action, as well as personalty in posses-
sion. In wills. The term "goods and chattels"
will, unless restrained by the context, pass all the
personal estate, including leases for years, cattle,
corn, debts, and the like. Ward, Leg. 208, 211.
GOODS SOLD AND DELIVERED. A phrase fre-
quently used in the action of assumpsit, when the
sale and delivery of goods furnish the cause.
GOODS, WARES, AND MERCHANDISE. A gen-
eral and comprehensive designation of such chat-
tels as are ordinarily the subject of traffic and
sale. The phrase is used in the statute of frauds,
and is frequently found in pleadings and other
instruments. As to its scope, see State v. Brooks,
4 Conn. 449; French v. Schoonmaker, 69 N.J.L. 6,
54 A. 225; Sewall v. Allen, 6 Wend., N.Y., 355;
Smith v. Wilcox, 24 N.Y. 358, 82 Am.Dec. 302;
Banta v. Chicago, 172 Ill. 204, 50 N.E. 233, 40 L.
R.A. 611; Basset v. City of Boston, 226 Mass. 64,
114 N.E. 1035; Culp v. Holbrook, 76 Ind.App. 272,
129 N.E. 278, 280.
GOOLE. In old English law, a breach in a bank
or sea wall, or a passage worn by the flux and re-
flux of the sea. St. 16 & 17 Car. II. c. 11.
GOPHER HOLING. The " 'gopher hole' method
of blasting" consists in boring holes, horizontally
into the bank of earth and inserting therein charg-
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GORCE
es of powder, the explosion of which dislodges
the bank. Bartnes v. Pittsburg Iron Ore Co., 123
Minn. 131, 143 N.W. 117.
GORCE, or GOES. A wear, pool, or pit of water.
Termes de la Ley.
GORE. In old English law, a small, narrow slip
of ground. Cowell. In modern land law, a small
triangular piece of land, such as may be left be-
tween surveys which do not close. In some of the
New England states (as Maine and Vermont) the
term is applied to a subdivision of a county, hav-
ing a scanty population and for that reason not
organized as a town.
GORGE. A defile between hills or mountains,
that is a narrow throat or outlet from a region
of country. Gibbs v. Williams, 25 Kan. 214, 37
Am.Rep. 241.
GOSSIPRED. In canon law, compaternity; spir-
itual affinity.
GOUT. In medical jurisprudence, an inflamma-
tion of the fibrous and ligamentous parts of the
joints, characterized or caused by an excess of
uric acid in the blood; usually, but not invariably,
occurring in the joints of the feet, and then
specifically called "podagra."
GOVERN. To direct and control the actions or
conduct of, either by established laws or by ar-
bitrary will; to direct and control, rule, or regu-
late, by authority. Tucker v. State, 218 Ind. 614,
35 N.E.2d 270, 291. To be a rule, precedent, law
or deciding principle for. Asnon v. Foley, 105
Cal.App. 624, 288 P. 792, 795.
GOVERNMENT. From the Latin gubernaculum.
Signifies the instrument, the helm, whereby the
ship to which the state was compared, was guided
on its course by the "gubernator" or helmsman,
and in that view, the government is but an agency
of the state, distinguished as it must be in accur-
ate thought from its scheme and machinery of
government. State v. Chase, 175 Minn. 259, 220
N.W. 951, 953.
The system of polity in a state; that form of
fundamental rules and principles by which a na-
tion or state is governed, or by which individual
members of a body politic are to regulate their
social actions; a constitution, either written or
unwritten, by which the rights and duties of citi-
zens and public officers are prescribed and de-
fined, as a monarchical government, a republican
government, etc. Webster.
An empire, kingdom, state or independent politi-
cal community; as in the phrase, "Compacts be-
tween independent governments."
The sovereign or supreme power in a state or
nation.
The machinery by which the sovereign power
in a state expresses its will and exercises its func-
tions; or the framework of political institutions,
departments, and offices, by means of which the
executive, judicial, legislative, and administrative
business of the state is carried on.
The whole class or body of office-holders or
functionaries considered in the aggregate, upon
whom devolves the executive, judicial, legislative,
and administrative business of the state. Stokes
v. United States, C.C.A.Mo., 264 F. 18, 22.
In a colloquial sense, the United States or its
representatives, considered as the prosecutor in
a criminal action; as in the phrase, "the govern-
ment objects to the witness."
The regulation, restraint, supervision, or con-
trol which is exercised upon the individual mem-
bers of an organized jural society by those in-
vested with authority; or the act of exercising
supreme political power or control. Chicago, B.
& Q. R. Co. v. School Dist. No. 1 in Yuma County,
63 Colo. 159, 165 P. 260, 263.
Federal government. The government of the
United States of America, as distinguished from
the governments of the several states.
Local government. The government or admin-
istration of a particular locality; especially, the
governmental authority of a municipal corpora-
tion, as a city or county, over its local and in-
dividual affairs, exercised in virtue of power del-
egated to it for that purpose by the general gov-
ernment of the state or nation.
Mixed government. A form of government
combining some of the features of two or all of
the three primary forms, viz., monarchy, aristoc-
racy, and democracy.
Republican government. One in which the pow-
ers of sovereignty are vested in the people and
are exercised by the people, either directly, or
through representatives chosen by the people, to
whom those powers are specially delegated.
Black, Const. Law (3d Ed.) 309; In re Duncan,
139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219; Minor v.
Happersett, 21 Wall. 175, 22 L.Ed. 627.
GOVERNMENT ANNUITIES SOCIETIES. So-
cieties formed in England under 3 & 4 Wm. IV.
c. 14, 7 & 8 Vict. c. 83, 16 & 17 Vict. c. 45, and 27
& 28 Vict. c. 43, to enable the industrious classes
to make provisions for themselves by purchasing,
on advantageous terms, a government annuity for
life or term of years. Wharton.
GOVERNMENT DE FACTO. A government of
fact. A government actually exercising power
and control in the state, as opposed to the true
and lawful government; a government not es-
tablished according to the constitution of the state,
or not lawfully entitled to recognition or suprem-
acy, but which has nevertheless supplanted or
displaced the government de jure. A government
deemed unlawful, or deemed wrongful or unjust,
which, nevertheless, receives presently habitual
obedience from the bulk of the community. Aust.
Jur. 324.
There are several degrees of what is called "de facto gov-
ernment." Such a government, in its highest degree,
assumes a character very closely resembling that of a law-
ful government. This is when the usurping government
expels the regular authorities from their customary seats
and functions, and establishes itself in their place, and so
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GOVERNMENTAL
becomes the actual government of a country. The distin-
guishing characteristic of such a government is that adher-
ents to it in war against the government de jure do not
incur the penalties of treason; and, under certain limita-
tions, obligations assumed by it in behalf of the country or
otherwise will, in general, be respected by the government
de jure when restored.
Such a government might be more aptly denominated a
"government of paramount force," being maintained by
active military power against the rightful authority of an
established and lawful government; and obeyed in civil
matters by private citizens. They are usually administered
directly by military authority, but they may be adminis-
tered, also, by civil authority, supported more or less by
military force. Thorington v. Smith, 8 Wall. 8, 9, 19 L.Ed.
361.
GOVERNMENT DE JURE. A government of
right; the true and lawful government; a gov-
ernment established according to the constitution
of the state, and lawfully entitled to recognition
and supremacy and the administration of the
state, but which is actually cut off from power
or control. A government deemed lawful, or
deemed rightful or just, which, nevertheless, has
been supplanted or displaced; that is to say, which
receives not presently (although it received form-
erly) habitual obedience from the bulk of the
community. Aust. Jur. 324.
GOVERNMENT INSTRUMENTALITY DOC-
TRINE. The doctrine that government instru-
mentalities are tax exempt.
The dominion exercised over the estate of deceased full-
blood restricted Creek Indian, would not vest in the gov-
ernment a control sufficient to exempt the estate from
estate taxes under the "government instrumentality doc-
trine".  Landman v. Commissioner of Internal Revenue,
C.C.A.10, 123 F.2d 787, 789.
One owning and operating trucks under contract with
federal government for transportation of mail held not
entitled to have trucks exempted from state motor vehicle
registration tax, on ground that trucks were immune from
state taxation as agencies and instrumentalities of United
States government. Moody v. Louwein, Tex.Civ.App., 300
S. W. 957, 958.
GOVERNMENTAL. Of, pertaining to, or pro-
ceeding from government.
Generally, what are purely governmental duties of a city
can be settled only by the particular facts. City of Waco
v. Thompson, Tex.Civ.App., 127 S.W.2d 223, 225.
GOVERNMENTAL ACT. An act in exercise of
police power or in exercise of legislative, discre-
tionary, or judicial powers conferred on munici-
pality for benefit of public. Broome v. City of
Charlotte, 208 N.C. 729, 182 S.E. 325. Any act
a state may lawfully perform or authorize and,
as applied to the federal government, it is its ev-
ery action within its constitutional power. Orme
v. Atlas Gas & Oil Co., 217 Minn. 27, 13 N.W.2d
757, 762. A step physically taken by persons
capable of exercising the sovereign authority of
the foreign nation. Banco de Espana v. Federal
Reserve Bank of New York, C.C.A.N.Y., 114 F.2d
438, 444.
GOVERNMENTAL ACTION. Any action of the
federal government within its constitutional pow-
er. Graves v. People of State of New York ex
rel. O'Keefe, N.Y., 306 U.S. 466, 59 S.Ct. 595, 596,
83 L.Ed. 927, 120 A.L.R. 1466; Chapman v. State,
179 Miss. 507, 176 So. 391, 392.
GOVERNMENTAL ACTIVITY. A function of
government in providing for its own support or
in providing services to the public. For example
taxation and the collection of taxes, Goble v. Zo-
lot, 144 Neb. 70, 12 N.W.2d 311, 312; maintenance
of firehouse property, Haynes v. City of New
York, 259 App.Div. 837, 19 N.Y.S.2d 164, 165.
Generally when a municipality's activity is for advantage
of state as a whole, or is in performance of a duty imposed
by sovereign power, activity is "public" and "govern-
mental." Department of Treasury v. City of Evansville,
Ind., 223 Ind. 435, 60 N.E.2d 952, 955.
GOVERNMENTAL AGENCY. A subordinate
creature of the sovereign created to carry out a
governmental function. Frequently, a political
subdivision or corporation. Hence a charitable
hospital which cared for free patients, sent to it
by city, Jewish Hospital of Brooklyn v. Doe, 252
App.Div. 581, 300 N.Y.S. 1111, 1117; city fire de-
partment, Ring v. Minneapolis St. Ry. Co., 173
Minn. 265, 217 N.W. 130, 131; county, Jefferson
County ex rel. Grauman v. Jefferson County Fis-
cal Court, 274 Ky. 91, 118 S.W.2d 181, 184; county
water district, Laguna Beach County Water Dist.
v. Orange County, 30 Cal.App.2d 740, 87 P.2d 46,
48; irrigation district, Outlook Irr. Dist. v. Fels,
176 Wash. 211, 28 P.2d 996, 998; municipal cor-
poration, Town of Falls Church v. Arlington
County Board, 166 Va. 192, 184 S.E. 459, 463; Mil-
lar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42,
44; National Guard, Lind v. Nebraska National
Guard, 144 Neb. 122, 12 N.W.2d 652, 656, 150 A.L.
R. 1449; poor district, Managers for Relief and
Employment of Poor of Germantown Tp. v. Wit-
kin, 329 Pa. 410, 196 A. 837, 840; school district,
State ex rel. Klimek v. School Dist. No. 70, Otter
Tail County, 204 Minn. 279, 283 N.W. 397, 399;
Tennessee Valley Authority, Posey v. Tennessee
Valley Authority, C.C.A.Ala., 93 F.2d 726, 727; and
every agency which Congress can constitutionally
create. Graves v. People of State of New York
ex rel. O'Keefe, N.Y., 306 U.S. 466, 59 S.Ct. 595,
597, 83 L.Ed. 927, 120 A.L.R. 1466.
GOVERNMENTAL AGENTS. Those performing
duties of a public character for benefit of all citi-
zens of community. The term includes firemen
and policemen. Miller v. City of Albany, 158 Misc.
720, 287 N.Y.S. 889, 891.
GOVERNMENTAL BODY. See Governmental
Agency.
GOVERNMENTAL CAPACITY. In its "govern-
mental capacity," a municipality acts mainly as
an arm of the state for convenient administra-
tion of government in incorporated territory, for
public good on behalf of the state rather than
for itself.  Public Service Co. of Oklahoma v.
City of Tulsa, 174 Okl. 58, 50 P.2d 166, 168; Okla-
homa Natural Gas Corporation v. City of Enid, 179
Okl. 283, 65 P.2d 440, 442.
GOVERNMENTAL CHARACTER. See Govern-
mental Capacity.
GOVERNMENTAL DUTIES. Those duties of a
municipality have reference to some part or ele-
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GOVERNMENTAL
rnent of the state's sovereignty granted it to be ex-
ercised for the benefit of the public, and all other
duties are "proprietary". City of Miami v. Oates,
152 Fla. 21, 10 So.2d 721, 723.
Those duties that the framers of the Constitu-
tion intended each member of the union of states
would assume in order adequately to function un-
der the form of government guaranteed by the
Constitution. First State Bank of Gainesville v.
Thomas, D.C.Tex., 38 F.Supp. 849, 851.
GOVERNMENTAL ENTERPRISE. A project or
undertaking by the government of a more or less
permanent nature, such as a drainage district.
Rorick v. United States Sugar Corporation, C.C.A.
Fla., 120 F.2d 418, 421.
GOVERNMENTAL EXPENDITURE OR EX-
PENSE. One made in preserving health, good
order, and peace of community (Const. art. 8, §
10). Town of Amherst v. Erie County, 236 App.
Div. 58, 258 N.Y.S. 76, 81; keeping and dieting of
prisone-s and taking care of jail, Breathitt Coun-
ty v. Cockrell, 250 Ky. 743, 63 S.W.2d 920, 92 A.L.
R. 626.
GOVERNMENTAL FACILITY. A building or in-
stitution provided by the government to care for
a specified need, such as a court house or county
jail. Haney .v. Town of Rainelle, 125 W.Va. 397,
25 S.E.2d 207, 211.
GOVERNMENTAL FUNCTION. Duties imposed
by state on municipal corporation, which latter
must perform at peril. Seafeldt v. Port of As-
toria, 141 Or. 418, 16 P.2d 943, 945. Where duty
involves general public benefit not in nature of
corporate or business undertaking for corporate
benefit and interest of municipality, function is
"governmental," whether duty be directly imposed
or voluntarily assumed. Gebhardt v. Village of
La Grange Park, 354 Ill. 234, 188 N.E. 372, 374.
Those conferred upon municipality as local agency
of prescribed and limited jurisdiction to be em-
ployed in administering the affairs of the state
and promoting the public welfare generally. State
ex rel. Gebhardt v. City Council of Helena, 102
Mont. 27, 55 P.2d 671, 673, 675.
GOVERNMENTAL IMMUNITY. A doctrine of
implied limitation of the power of the federal
government to tax a state or any of its instrumen-
talities, and of power of state to tax federal gov-
ernment or any of its instrumentalities, and is
applicable only to taxing relations of federal and
state governments, and does not apply to state and
municipalities therein. Marson v. City of Philadel-
phia, 342 Pa. 369, 21 A.2d 228, 229, 230. See, also,
Sovereign Immunity of State from Liability.
GOVERNMENTAL INSTRUMENTALITY. Any
agency constitutionally created by Congress. Un-
employment Compensation Commission of North
Carolina v. Wachovia Bank & Trust Co., 215 N.C.
491, 2 S.E.2d 592, 595, 596; Home Owners' Loan
Corporation v. Hardie & Caudle, 171 Tenn. 43, 100
S.W.2d 238, 239, 108 A.L.R. 702; Indian oil lease,
Barnsdall Refineries v. Oklahoma Tax Commis-
sion, 171 Okl. 140, 41 P.2d 918; liquor control
commission, Pacific Fruit & Produce Co. v. Oregon
Liquor Control Commission, D.C.Or., 41 F.Supp.
175, 179.
GOVERNMENTAL POWERS. Those pertaining
to making and enforcing by a city of police regu-
lations to prevent crime, preserve public health,
prevent fires, care for the poor, and educate the
young. Huffman v. City of Columbus, Ohio App.,
51 N.E.2d 410, 412.
Powers exercised by city as agency of state.
State ex rel. Gebhardt v. City Council of Helena,
102 Mont. 27, 55 P.2d 671, 673.
GOVERNMENTAL PURPOSE. One which has
for its objective the promotion of the public health,
safety, morals, general welfare, security, pros-
perity and contentment of the inhabitants of a
given political division. Green v. Frazier, 44 N.D.
395, 176 N.W. 11, 17.
It has been held that, if an electric plant is used by a city
for furnishing light and power for its own use and the
use of its inhabitants, it is a "governmental purpose".
Chadwick v. City of Crawfordsville, 216 Ind. 399, 24 N.E.2d
937, 941, 129 A.L.R. 469; State v. Lincoln County Power
Dist. No. 1, 60 Nev. 401, 111 P.2d 528, 531.
A lot purchased for jail but actually used to store cord-
wood used in county buildings and to store county road
machinery, was prima facie used for "governmental pur-
poses". Security State Bank v. Dent County, 345 Mo. 1050,
137 S.W.2d 960, 964.
Some courts distinguish between public purpose
and governmental purpose. Spalding v. United
States, D.C.Cal., 17 F.Supp. 957, 961.
GOVERNMENTAL SUBDIVISION. An agency
created to carry out a governmental purpose or
function. It has been held to include a public
corporation authorized to use waters of natural
stream for irrigation and for development of elec-
tric power, Platte Valley Public Power and Irri-
gation Dist. v. Lincoln County, 144 Neb. 584, 14
N.W.2d 202, 206, 155 A.L.R. 412; and a housing au-
thority, Lennox v. Housing Authority of City of
Omaha, 137 Neb. 582, 290 N.W. 451, 459; but not
to include the Mortgage Commission Service Cor-
poration, In re Batter, 257 App.Div. 546, 14 N.Y.S.
2d 42, 44; or a receiver operating for the account
of the United States. The Southern Cross, C.C.A.
N.Y., 120 F.2d 466, 468.
GOVERNOR. The chief executive official of a
state in the United States, State ex rel. Martin v.
Heil, 242 Wis. 41, 7 N.W.2d 375, 380; and terri-
tories of the United States; and also of the chief
magistrate of some colonies, provinces, and de-
pendencies of other nations.
GRABBOTS. Oilmill motes, composed of small
particles of refuse cotton, detached from, but left
with, the seed in the first ginning process and
generally separated and recovered by a process of
reginning. Chicago, R. I. & P. Ry. Co. v. Cleve-
land, 61 Okl. 64, 160 P. 328, 330.
GRACE. A favor or indulgence as distinguished
from a right. State v. Boston, Iowa, 234 Iowa
1047, 14 N.W.2d 676, 679. Thus, in St. 22 Edw. III.,
the lord chancellor was instructed to take cogniz-
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ance of matters of grace, being such subjects of
equity jurisdiction as were exclusively matters of
equity. Brown.
A faculty, license, or dispensation; also general
and free pardon by act of parliament. See Act of
Grace.
For Of Grace, see that title.
GRACE, DAYS OF. Time of indulgence granted
to an acceptor or maker for the payment of his
bill of exchange or note. It was originally a gra-
tuitous favor, (hence the name,) but custom has
rendered it a legal right.
GRACE PERIOD. In Insurance Law. A period
beyond the due date of premium during which
insurance is continued in force and during which
payment may be made to keep policy in good
standing. The grace period for payment of prem-
ium does not contemplate free insurance or oper-
ate to continue the policy in force after it expires
by agreement of the parties. Miller v. Travelers
Ins. Co., 143 Pa.Super. 270, 17 A.2d 907, 909.
GRADATE I. In old English law, by degrees or
steps; step by step; from one degree to another.
Bract. fol. 64.
GRADE, v. To establish a level by mathematical
points and lines, and then to bring the surface
of the street or highway to the level by the eleva-
tion or depression of the natural surface to the
line fixed. Gas & Electric Securities Co. v. Man-
hattan & Queens Traction Corporation, C.C.A.N.Y.,
266 F. 625, 639; Louisville & N. R. Co. v. State,
137 Tenn. 341, 193 S.W. 113; Giles v. City of Olym-
pia, 115 Wash. 428, 197 P. 631, 633, 16 A.L.R. 493.
To bring property to the level of an abutting high-
way. Nassau County v. O'Connell, Sup., 37 N.Y.S.
2d 1009, 1012.
GRADE, n. Used in reference to streets: (1)
The line of the street's inclination from the hori-
zontal; (2) a part of a street inclined from the
horizontal. Cent. Dict. The hypothetical line to
which the work is to be constructed. Musto-Keen-
an Co. v. City of Los Angeles, 139 Cal.App. 506,
34 P.2d 506, 509. The street wrought to the line;
Little Rock v. Ry. Co., 56 Ark. 28, 19 S.W. 17;
Austin v. Tillamook City, 121 Or. 385, 254 P. 819,
824.
"Grades of crime" in legal parlance are under-
stood as higher or lower in grade or degree, ac-
cording to the measure of punishment attached
and meted out on conviction and the consequences
resulting to the party convicted. State v. Doucet,
202 La. 1074, 13 So.2d 353, 361.
Quality, value, relative position, rank, status,
or standing. Mossman v. Chicago & Southern Air
Lines, 236 Mo.App. 282, 153 S.W.2d 799, 801, 802.
GRADE CROSSING. A place where a railroad is
crossed at grade by a public or private road, or
by another railroad, or where one highway cross-
es another. Armour & Co. v. New York, N. H. &
H. R. Co., 41 R.I. 361, 103 A. 1031, 1033.
GRADED OFFENSE. One for which offender is
subject to a more severe penalty for a higher
grade than for a lower grade of offense according
to terms of statute. State v. Doucet, 202 La. 1074,
13 So.2d 353, 361.
GRADUATE. One who has taken a degree in a
college or university. State v. Ins. Co., 40 La.
Ann. 463, 4 So. 504; Valentine v. Independent
School District of Casey, 191 Iowa 1100, 183 N.W.
434, 437.
GRADUS. In the civil and old English law, a
measure of space. A degree of relationship.
A step or degree generally; e. g., gradus honor-
um, degrees of honor. Vicat. A pulpit; a year;
a generation. Du Cange.
A port; any place where a vessel can be brought
to land. Du Cange.
GRADUS PARENTELAE. A pedigree; a table of
relationship.
GRAFFARIUS. In old English law, a graffer,
notary, or scrivener. St. 5 Hen. VIII. c. L
GRAFFER. A notary or scrivener. See St. 5 Hen.
VIII, c. 1. The word is a corruption of the French
"greffier," (q. v.)
GRAFFIUM. A writing-book, register, or cartu-
lary of deeds and evidences. Cowell.
GRAFIO. A baron, inferior to a count. A fiscal
judge. An advocate. Spelman; Cowell.
GRAFT. The popular meaning is the fraudulent
obtaining of public money unlawfully by the cor-
ruption of public officers. Smith v. Pure Oil Co.,
278 Ky. 430, 128 S.W.2d 931, 933.
A term used in equity to denote the confirma-
tion, by relation back, of the right of a mortgagee
in premises to which, at the making of the mort-
gage, the mortgagor had only an imperfect title,
but to which the latter has since acquired a good
title.
Advantage or personal gain received because of peculiar
position or superior influence of one holding position of
trust and confidence without rendering compensatory serv-
ices, or dishonest transaction in relation to public or official
acts, and sometimes implies theft, corruption, dishonesty,
fraud, or swindle, and always want of integrity. Mount v.
Welsh, 118 Or. 568, 247 P. 815, 822; Cooper v. Romney, 49
Mont. 119, 141 P. 289, 291; Gill v. Ruggles, 95 S.C. 90, 78
S.E. 536, 540.
GRAIN. In Troy weight, the twenty-fourth part
of a pennyweight. Any kind of corn sown in the
ground.
GRAIN RENT. A payment for the use of land
in grain or other crops; the return to the land-
lord paid by croppers or persons working the land
on shares. Railroad Co. v. Bates, 40 Neb. 381, 58
N.W. 963.
GRAINAGE. An ancient duty in London under
which the twentieth part of salt imported by aliens
was taken.
GRAMMAR SCHOOL. In England, this term des-
ignates a school in which such instruction is giv-
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GRAMMATICA
en as will prepare the student to enter a college
or university, and in this sense the phrase was
used in the Massachusetts colonial act of 1647,
requiring every town containing a hundred house-
holders to set up a "grammar school." Jenkins v.
Andover, 103 Mass. 97. But in modern American
usage the term denotes a school, intermediate be-
tween the primary school and the high school, in
which English grammar and other studies of that
grade are taught.
GRAMMATICA FALSA NON VITIAT CHAR-
TAM. 9 Coke, 48. False grammar does not vi-
tiate a deed.
GRAMMATOPHYLACIUM. (Grieco-Lat.) In the
civil law, a place for keeping writings or records.
Dig. 48, 19, 9, 6.
GRAMME. The unit of weight in the metric sys-
tem. The gramme is the weight of a cubic centi-
meter of distilled water at the temperature of 4°
C. It is equal to 15.4341 grains troy, or 5.6481
drachms avoirdupois.
GRANATARIUS. In old English law, an officer
having charge of a granary. Fleta, lib. 2, c. 82,
§ 1; Id. c. 84.
GRAND, n. In cant of gangsters, thieves, and
underworld, one thousand dollars.
As to grand "Assize," "Bill of Sale," "Cape,"
"Distress," "Jury," "Larceny," and "Serjeanty,"
cee those titles.
GRAND COUTUMIER. A collection of customs,
laws, and forms of procedure in use in early times
in France. See Coutumier.
GRAND DAYS. In English practice, certain days
in the terms, which are solemnly kept in the inns
of court and chancery, viz., Candlemas day in
Hilary term, Ascension day in Easter, St. John
the Baptist day in Trinity, and All Saints in
Michaelmas; which are dies non juridici. Termes
de la Ley; Cowell; Blount. They are days set
apart for peculiar festivity; the members of the
respective inns being on such occasions regaled
at their dinner in the hall, with more than usual
sumptuousness. Holthouse.
GRAND REMONSTRANCE. A constitutional
document passed by the British House of Com-
mons in November, 1641.
It was in the nature of an appeal to the country, setting
forth political grievances. It consisted of a preamble of 20
clauses and the body of the remonstrance with 206 clauses,
each of which was voted separately. Its first remedial
measure was against papists; its second demanded that all
illegal grievances and exactions should be presented and
punished at the sessions and assizes and that judgds and
justices should be sworn to the due execution of the Peti-
tion of Rights and other laws. The third was a series of
precautions to prevent the employment of evil councillors.
See Taswell-Langmead, Engl.Const.Hist. 464; Forsher,
Grand Remonstrance. The text will be found in History
for Ready Reference, II, 833.
GRAND-STAND PLAY. In baseball, etc., a play
made more showily than necessary in order to
draw the applause of those in the grand stand;
hence, figuratively, an act done to draw applause.
Webster, Diet.
GRANDCHILD. Generally, child of one's child.
Rieck v. Richards, 40 Ohio App. 201, 178 N.E. 276,
278. Descendant of second degree. Spencer v.
Title Guarantee Loan & Trust Co., 222 Ala. 221,
132 So. 32, 34. The word may, however, be en-
larged by context. Ball v. Weightman, 273 Pa.
120, 116 A. 653, 654; Davidson v. Blackwell, 152
Ga. 48, 108 S.E. 469, 471; Splitdoff Electrical Co.
v. King, 90 N.J.Law, 421, 103 A. 674.
GRANDFATHER. The father of either of one's
parents.
GRANDFATHER CLAUSE. A clause introduced
into several of the constitutions of the southern
states, limiting the right to vote to those who can
read and write any article of the constitution of
the United States, and have worked or been reg-
ularly employed in some lawful employment for
the greater part of the year next preceding the
time they offer to register unless prevented from
labor or ability to read or write by physical dis-
ability, or who own property assessed at three
hundred dollars upon which the taxes have been
paid; but excepting those who have served in the
army or navy of the United States or in the Con-
federate States in time of war, their lawful de-
scendants in every degree, and persons of good
character who understand the duties and obliga-
tions of citizenship under a republican form of
government.
One of the original purposes of the "grandfath-
er" clause of the Motor Carrier Act was to per-
mit the operation of carrier businesses already
established. Transamerican Freight Lines v.
United States, D.C.Del., 51 F.Supp. 405, 409.
GRANDMOTHER. The mother of either of one's
parents.
GRANGE. A farm furnished with barns, gran-
aries, stables, and all conveniences for husband-
ry. Co. Litt. 5a.
GRANGEARIUS. A keeper of a grange or farm.
GRANGER CASES. A name applied to six cases
decided by the supreme court of the United States
in 1876, which are reported in Munn v. Illinois, 94
U.S. 113, 24 L.Ed. 77; Chicago, B. & Q. R. Co. v.
Iowa, 94 U.S. 155, 24 L.Ed. 94; Peik v. Ry. Co., 94
U.S. 165, 24 L.Ed. 97; Chicago, M. & St. P. R. Co.
v. Ackley, 94 U.S. 179, 24 L.Ed. 99; Winona &
St. Peter R. Co. v. Blake, 94 U.S. 180, 24 L.Ed. 99;
those most frequently cited being Munn v. Illinois,
and C., B. & Q. R. Co. v. Iowa. They are so called
because they arose out of an agitation commenced
by the grangers which resulted in the enactment
of statutes for the regulation of the tolls and
charges of common carriers, warehousemen, and
the proprietors of elevators.
The enforcement of these acts was resisted and their con-
stitutionality questioned. The supreme court affirmed the
common-law doctrine that private property appropriated by
the owner to a public use is thereby subjected to public
regulation. They also held that the right of regulation was
not restrained by the prohibition of the fourteenth amend-
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GRATIS
ment of the federal constitution against the taking by the
states of private property without due process of law. A
text writer, who was at that time a member of the court,
says of these cases: "But these decisions left undecided
the question how far this legislative power of regulation
belonged to the States, and how far it was in the congress
of the United States"; Miller, Const.U.S. 397.
GRANGIA. A grange. Co. Litt. 5a.
GRANT. To bestow; to confer, Traylor v. State,
117 Tex.Cr.R. 323, 36 S.W.2d 506, 507; upon some
one other than the person or entity which makes
the grant. Porto Rico Ry., Light & Power Co.
v. Colom, C.C.A.Puerto Rico, 106 F.2d 345, 354.
Deed. Walker v. Deppe, 346 Mo. 354, 141 S.W.
2d 783, 785. A conveyance. Dearing v. Brush
Creek Coal Co., 182 Tenn. 302, 186 S.W.2d 329,
331. Transfer of property real or personal by
deed or writing. Commissioner of Internal Rev-
enue v. Plestcheeff, C.C.A.9, 100 F.2d 62, 64, 65.
A generic term applicable to all transfers of
real property, 3 Washb. Real Prop. 181, 353; in-
cluding transfers by operation of law as well as
voluntary transfers. White v. Rosenthal, 140 Cal.
App. 184, 35 P.2d 154,1.55.
A transfer by deed of that which cannot be
passed by livery. Williams, Real Prop. 147, 149;
Jordan v. Indianapolis Water Co., 159 Ind. 337,
64 N.E. 680.
An act evidenced by letters patent under the
great seal, granting something from the king to
a subject. Cruise, Dig. tit. 33, 34; Downs v. Unit-
ed States, C.C.A.Md., 113 F. 147, 51 C.C.A. 100.
A technical term made use of in deeds of con-
veyance of lands to import a transfer. 3 Washb.
Real Prop. 378-380.
As distinguished from a mere license, a grant passes
some estate or interest, corporeal or incorporeal, in the
lands which it embraces. Jamieson v. Millemann, 3 Duer,
N.Y., 255, 258.
The term "grant," in Scotland, is used in reference (1)
to original dispositions of land, as when a lord makes
grants of land among tenants; (2) to gratuitous deeds.
Paterson. In such case, the superior or donor is said to
grant the deed; an expression totally unknown in English
law. Mozley & Whitley.
By the word "grant," in a treaty, is meant not only a
formal grant, but any concession, warrant, order, or per-
mission to survey, possess, or settle, whether written or
parol, express, or presumed from possession. Such a grant
may be made by law, as well as by a patent pursuant to a
law. Strother v. Lucas, 12 Pet. 436, 9 L. Ed. 1137; Bryan
v. Kennett, 113 U.S. 179, 5 S.Ct. 413, 28 L.Ed. 908; Hast-
ings v. Turnpike Co., 9 Pick., Mass., 80; Dudley v. Sum-
ner, 5 Mass. 470.
For office grant, see Office.
Private land grant. A grant by a public author-
ity vesting title to public land in a private (na-
tural) person. United Land Ass'n v. Knight, 85
Cal. 448, 24 P. 818.
Public grant. A grant from the public; a grant
of a power, license, privilege, or property, from,
the state or government to one or more individ-
uals, contained in or shown by a record, convey-
ance, patent, charter, etc.
GRANT AND DEMISE. In a lease for years
these words create an implied warranty of title
and a covenant for quiet enjoyment; Stott v.
Rutherford, 92 U.S. 107, 23 L.Ed. 486.
GRANT AND TO FREIGHT LET. Operative
words in a charter party, implying the placing
of the vessel at the disposition of the charterer
for the purposes of the intended voyage, and gen-
erally, transferring the possession. See . Christie
v. Lewis, 2 Brod. & B. 441.
GRANT, BARGAIN, AND SELL. Operative
words in conveyances of real estate. Muller v.
Boggs, 25 Cal. 187; Hawk v. McCullough, 21 Ill.
221.
GRANT OF PERSONAL PROPERTY. A method
of transferring personal property, distinguished
from a gift by being always founded on some con-
sideration or equivalent. 2 Bl. Comm. 440, 441.
Its proper legal designation is an "assignment,"
or "bargain and sale." 2 Steph. Comm. 102.
GRANT TO USES. The common grant with uses
superadded, which has become the favorite mode
of transferring realty in England. Wharton.
GRANTEE. One to whom a grant is made. Com-
missioner of Internal Revenue v. Plestcheeff, C.C.
A.9, 100 F.2d 62, 65.
GRANTOR. The person by whom a grant is
made.
GRANTOR'S LIEN. Lien which exists for pay-
ment of purchase money when title is transferred.
Kosters v. Hoover, 69 App.D.C. 66, 98 F.2d 595,
596.
GRANTZ. In old English law, noblemen or gran-
dees. Jacob.
GRASS HEARTH. In old records, the grazing
or turning up the earth with a plow. The name
of a customary service for inferior tenants to
bring their plows, and do one day's work for their
lords. Cowell.
GRASS WEEK. Rogation week, so called ancient-
ly in the inns of court and chancery.
GRASS WIDOW. A slang term for a woman sep-
arated from her husband by abandonment or pro-
longed absence; a woman living apart from her
husband. Webster. A divorcee.
GRASSON, or GRASSUM. A fine paid upon the
transfer of a copyhold estate. See Gressume.
GRATIFICATION. A gratuity; a recompense or
reward for services or benefits, given voluntarily,
without solicitation or promise.
GRATIS. Without reward or consideration.
Highway Department of Georgia v. Bass, 197 Ga.
356, 29 S.E.2d 161, 169. Freely; gratuitously.
GRATIS DICTUM. A voluntary assertion; a
statement which a party is not legally bound to
make, or in which he is not held to precise accur-
acy. 2 Kent, Comm. 486; Medbury v. Watson, 6
Metc., Mass., 260, 39 Am.Dec. 726.
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GRATUITOUS
GRATUITOUS. Without valuable or legal con-
sideration. A term applied to deeds. of conveyance
and to bailments and other contracts.
In old English law, voluntary; without force,
fear, or favor. Bract. fols. 11, 17.
As to gratuitous "Bailment," "Contract," and
"Deposit," see those titles.
GRATUITOUS ALLOWANCE. A pension. Mor-
an v. Firemen's and Policemen's Pension Fund
Commission of Jersey City, 20 N.J.Misc. 479, 28 A.
2d 885, 887. State ex rel. Parker v. Board of Edu-
cation of City of Topeka, 155 Kan. 754, 129 P.2d
265, 267.
GRATUITOUS GUEST. In automobile law. A
person riding at invitation of owner or authorized
agent without payment of a consideration or fare.
McLain v. Atlantic Ice & Coal Corporation, 54 Ga.
App. 103, 187 S.E. 153; Hart v. Hogan, 173 Wash.
598, 24 P.2d 99; Blashfield, Cyc. of Automobile
Law and Prac., Perm. Ed., § 2292.
GRATUITOUS LICENSEE. Any licensee other
than a business visitor. Smith v. Southwest Mis-
souri R. Co., 333 Mo. 314, 62 S.W.2d 761.
GRATUITOUS PASSENGER. See Gratuitous
Guest.
GRATUITY. Something acquired without bar-
gain or inducement. State ex rel. Stafford v. Fox-
Great Falls Theatre Corporation, 114 Mont. 52, 132
P.2d 689, 697. Something given freely or without
recompense; a gift; something voluntarily given
in return for a favor or especially a service, hence,
a bounty; a tip; a bribe. McCook v. Long, 193 Ga.
299, 18 S.E.2d 488, 490.
GRAVA. In old English law, a grove; a small
wood; a coppice or thicket. Co. Litt. 4b.
A thick wood of high trees. Blount.
GRAVAMEN. The material part of a grievance,
.charge, etc.  Williamson v. Pacific Greyhound
Lines, 67 Cal.App.2d 250, 153 P.2d 990, 991. The
burden or gist of a charge; the grievance or in-
jury specially complained of.
In English Ecclesiastical law, a grievance com-
plained of by the clergy before the bishops in con-
vocation.
GRAVATIO. In old English law, an accusation
or impeachment. Leg. Ethel. c. 19.
GRAVE. An excavation in earth in which a dead
body is or is to be buried, or place for interment
of a corpse, such as a tomb, or a sepulcher. Leap-
hart v. Harmon, 186 S.C. 362, 195 S.E. 628, 629.
GRAVEL. Small stones, or fragments of stone
often intermixed with particles of sand. Fellows
v. Dorsey, 171 Mo.App. 289, 157 S.W. 995, 1000.
GRAVEL PIT. An excavation from which gravel
is removed. Walker v. Dwelle, 187 Iowa 1384, 175
N.W. 957, 964.
GRAVEN DOCK. A "graven dock" is distinguish-
ed from a "floating dock," in that it is permanently
attached to, and in that manner is, a part of land.
Butler v. Robins Dry Dock & Repair Co., 240 N.Y.
23, 147 N.E. 235; Manufacturers' Liability Ins. Co.
v. Hamilton, 129 Misc. 665, 222 N.Y.S. 394.
GRAVEYARD. A cemetery; a place for the in-
terment of dead bodies; sometimes defined in
statutes as a place where a minimum number of
persons (as "six or more") are buried. See Stock-
ton v. Weber, 98 Cal. 433, 33 P. 332; Gray v. Craig,
103 Kan. 100, 172 P. 1004, 1005.
GRAVEYARD INSURANCE. A term applied to
insurances fraudulently obtained (as, by false
personation or other means) on the lives of in-
fants, very aged persons, or those in the last stag-
es of disease. Also occasionally applied to an in-
surance company which writes wager policies,
takes extra-hazardous risks, or otherwise exceeds
the limits of prudent and legitimate business. See
McCarty's Appeal, 110 Pa. 379, 4 A. 925.
GRAVIS. Grievous; great. Ad grave damnum,
to the grievous damage. 11 Coke, 40.
GRAVIUS. A graf ; a chief magistrate or officer.
A term derived from the more ancient "grafio,"
and used in combination with various other words,
as an official title in Germany; as Margravius,
Rheingravius, Landgravius, etc. Spelman.
GRAVIUS EST DIVINAM QUAM TEMPORALEM
LAEDERE MAJESTATEM. It is more serious to
hurt divine than temporal majesty. 11 Coke, 29.
GRAY'S INN. An inn of court. See Inns of Court.
GREAT. Considerable in magnitude, power, in-
tensity or degree. Thompson v. Anderson, 107
Utah 331, 153 P.2d 665, 666. As 'used in various
compound legal terms, this word generally means
extraordinary, that is, exceeding the common or
ordinary measure or standard, in respect to physi-
cal size, or importance, dignity, etc. Gulf, etc., R.
Co. v. Smith, 87 Tex. 348, 28 S.W. 520; San Chris-
tina Inv. Co. v. City and County of San Francisco,
167 Cal. 762, 141 P. 384, 388, 52 L.R.A.,N.S., 676;
American Express Co. v. Terry, 126' Md. 254, 94 A.
1026, 1030, Ann.Cas.1917C, 650.
For presumption great, see Proof.
As to great "Care," "Ponds," "Seal," "Tithes,"
see those titles.
GREAT CATTLE. All manner of beasts except
sheep and yearlings. 2 Rolle, 173.
GREAT CHARTER. Magna Charta (q. v.).
GREAT—GRANDCHILDREN. Children of one's
grandchildren. Jenkins v. Harris, 135 Miss. 457,
100 So. 280.
GREAT LAW, THE, or "The Body of Laws of the
Province of Pennsylvania and Territories there-
unto belonging, Past at an Assembly held at
Chester alias Upland, the 7th day of the tenth
month, called 'December,' 1682." This was the
first code of laws established in Pennsylvania, and
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GROCER
is justly celebrated for the provision in its first
chapter for liberty of conscience.
GREAT TITHES. In ecclesiastical law, the more
valuable tithes: as, corn, hay, and wood. 3 Burn,
Eccl. Law, 680, 681; 3 Steph. Comm. 127. See
Tithes.
GREAT WRIT OF LIBERTY. The writ of "ha-
beas corpus and subjiciendum", issuing at com-
mon law out of courts of Chancery, King's Bench,
Common Pleas, and Exchequer. Ex parte Kelly,
123 N.J.Eq. 489, 198 A. 203, 207.
GREE. Satisfaction for an offense committed or
injury done. Cowell.
GREEK CROSS. See Cross.
GREEK KALENDS. A colloquial expression to
signify a time indefinitely remote, there being no
such division of time known to the Greeks.
GREEN CLOTH. In English law, a board or
court of justice held in the countinghouse of the
king's (or queen's) household, and composed of
the lord steward and inferior officers. It takes
its name from the green cloth spread over the
board at which it is held. Wharton; Cowell.
GREEN SILVER. A feudal custom in the manor
of Writtel, in Essex, where every tenant whose
front door opens to Greenbury shall pay a half-
penny yearly to the lord, by the name of "green
silver" or "rent." Cowell.
GREEN WAX. In English law, the name of the
estreats in the exchequer, delivered to the sheriff
under the seal of that court which was impressed
upon green wax.
GREENBACK. The popular and almost exclusive
name applied to all United States treasury issues.
Hickey v. State, 23 Ind. 23; U. S. v. Howell, D.C.
Cal., 64 F. 114.
GREENHEW. In forest law, the same as vent (q.
v. ) . Termes de la Ley.
GREFFIERS. In French law, registrars, or clerks
of the courts.
They are officials attached to the courts to assist the
judges in their duties. They keep the minutes, write out
the judgments, orders, and other decisions given by the
tribunals, and deliver copies thereof to applicants.
GREGORIAN CODE. The code or collection of
constitutions made by the Roman jurist Gregor-
ius. See Codex Gregorianus.
GREGORIAN EPOCH. The time from which the
Gregorian calendar or computation dates; i. e.,
from the year 1582.
GREMIO. In Spanish law, a guild; an associa-
tion of workmen, artificers, or merchants follow-
ing the same trade or business; designed to pro-
tect and further the interests of their craft.
GREMIUM. Lat. The bosom or breast; hence,
derivatively, safeguard or protection. In Eng-
lish law, an estate which is in abeyance is said to
be in gremio legis; that is, in the protection or
keeping of the law.
GRENVILLE ACT. The statute 10 Geo. III. c..
16, by which the jurisdiction over parliamentary
election petitions was transferred from the whole
house of commons to select committees. Repeal-
ed by 9 Geo. IV. c. 22, § 1.
GRESSUME. In English law, a customary fine
due from a copyhold tenant on the death of the
lord. 1 Strange, 654; 1 Crabb, Real Prop. p. 615,
§ 778. Spelled also "grassum," "grossome," and.
"gressame."
In Scotland grassum is a fine paid for the mak-
ing or renewing of a lease. Paterson.
GRETNA GREEN MARRIAGE. A marriage cel-
ebrated at Gretna, in Dumfries, (bordering on the
county of Cumberland,) in Scotland.
By the law of Scotland a valid marriage may be con
 by consent alone, without any other formality.
When the marriage act (26 Geo. II. c. 33) rendered the
publication of banns, or a license, necessary in England, it
became usual for persons who wished to marry clandes-
tinely to go to Gretna Green, the nearest part of Scotland,
and marry according to the Scotch law; so a sort of chapel
was built at Gretna Green, in which the English marriage
service was performed by the village blacksmith. Wharton..
GREVA. In old records, the sea shore, sand, or
beach. 2 Mon. Angl. 625; Cowell.
GREVE. A word of power or authority. Cowell.
GRIEVANCE. An injury, injustice or wrong
which gives ground for complaint because it is
unjust and oppressive. In re Borough of North.
Braddock, 126 Pa.Super. 53, 190 A. 357, 361.
GRIEVED. Aggrieved. 3 East, 22.
GRIEVOUS. Causing grief or sorrow, painful,.
afflictive, hard to bear, offensive, harmful. State
v. Bowers, 178 Minn. 589, 228 N.W. 164, 165.
GRIFF. A word said to have a definite meaning
in Louisiana, indicating the offspring of a Negro,
and a mulatto; a person too black to be a mulatto
and too pale in color to be readily identified as a
Negro. State v. Treadaway, 52 So. 500, 508, 126
La. 300, 139 Am.St.Rep. 514, 20 Ann.Cas. 1297.
Also spelled griffe, and applied to a person of
mixed Negro and American Indian blood. Web-
ster, New Int. Dict.
GRITH. In Saxon law, peace; protection:
GRITHBRECH, or GRITHBRECHE. Breacn of
the peace. Cowell.
GRITHSTOLE. A place of sanctuary. Cowell.
GROAT. An English silver coin (value four.
pence) issued from the fourteenth to the seven-
teenth century. See Reg. v. Connell, 1 Car. & K.
191.
GROCER. In old English law, a merchant or-
trader who engrossed all vendible merchandise;
an engrosser. St. 37 Edw. III. c. 5. See Engross-
er.
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GROG-SHOP
GROG–SHOP. A liquor saloon, barroom, or
dram-shop; a place where intoxicating liquor is
sold to be drunk on the premises. See Leesburg
v. Putnam, 103 Ga. 110, 29 S.E. 602.
GRONNA. In old records, a deep hollow or pit;
a bog or miry place. Cowell.
GROOM OF THE STOLE. In England, an officer
of the royal household, who has charge of the
king's wardrobe.
GROOM PORTER. Formerly an officer belonging
to the royal household. Jacob.
GROSS. Great; culpable. General. Absolute.
A thing in gross exists in its own right, and not
as an appendage to another thing. Before or
without diminution or deduction. Standard Chem-
ical Co. v. Curtis, 77 Colo. 10, 233 P. 1112, 1113;
Smith v. Toth, 61 Ind.App. 42, 111 N.E. 442, 444;
Klafter v. State Board of Examiners of Architects,
259 Ill. 15, 102 N.E. 193, 195, 46 L.R.A.,N.S., 532,
Ann.Cas.1914B, 1221. Whole; entire; total; as
the gross sum, amount, weight—opposed to net.
State v. Hallenberg-Wagner Motor Co., 341 Mo.
771, 108 S.W.2d 398, 401.
Out of all measure; beyond allowance; not to
be excused; flagrant; shameful; as a gross dere-
liction of duty; a gross injustice; gross careless-
ness. State Board of Dental Examiners v. Sa-
velle, 90 Colo. 177, 8 P.2d 693, 697.
As to gross "Adventure," "Average," "Earn-
ings," "Fault," "Negligence," and "Weight," see
those titles.
GROSS INADEQUACY. In compensation cases.
Compensation so unreasonably small as to shock
sense of justice and evince lack of fair and in-
telligent consideration. Albertsen v. Swift & Co.,
117 Kan. 337, 230 P. 1057, 1058.
GROSS INCOME. The term may mean the
"gross receipts" of a business before deduction or
expenditures for any purpose being equivalent to
"gross proceeds" or "gross receipts" as distin-
guished from "net income," which is that portion
of the receipts which remain after paying wages
and paying for materials, or, in the narrower
sense, profits over and above interest on capital
invested. First Trust Co. of St. Paul v. Common-
wealth Co., C.C.A.S.D., 98 F.2d 27, 31, 32.
GROSS PREMIUM. Net premium plus loading
for expenses and contingencies;  e., the net
premium represents the cost of insurance. Fox
v. Mutual Ben. Life Ins. Co., C.C.A.Mo., 107 F.2d
715, 719.
GROSS PROFIT. Excess of price received over
price paid for goods before deductions are made
for cost of operation. Hill v. City of Richmond,
181 Va. 744, 26 S.E.2d 48, .54.
GROSS WEIGHT. The total weight of goods or
merchandise, with the chests, bags, and the like,
from which are to be deducted tare and tret.
GROSSE AVENTURE. Fr. In French marine
law, the contract of bottomry. Ord. Mar. liv. 3, tit.
5.
GROSSE BOIS. Timber. Cowell.
GROSSEMENT. L. Fr. Largely, greatly.
Grossement enseint, big with child. Plowd. 76.
GROSSOME. In old English law, a fine, or sum
of money paid for a lease. Plowd. 270, 271. Sup-
posed to be a corruption of gersuma (q. v.). See
Gressume.
GROUND. Soil; earth; the earth's surface ap-
propriated to private use and under cultivation
or susceptible of cultivation.
Though this term is sometimes used as equivalent to
"land," it is properly of a more limited signification,
because it applies strictly only to the surface, and always
means dry land. See Wood v. Carter, 70 Ill App. 218; State
v. Jersey City, 25 N.J.L. 529; Corn. v. Roxbury, 9 Gray,
Mass., 491.
A foundation or basis; points relied on. Peo-
ple v. Wilkins, 67 Cal.App. 758, 228 P. 367; Peo-
ple v. Preciado, 31 Cal.App. 519, 160 P. 1090, 1091;
In re Egan, 36 S.D. 228, 154 N.W. 521, 522.
GROUND ANNUAL. In Scotch law, an annual
rent of two kinds: First, the feu duties payable
to the lords of erection and their successors;
second, the rents reserved for building lots in a
city, where sub-feus are prohibited. This rent
is in the nature of a perpetual annuity. Bell;
Ersk. Inst. 11, 3, 52.
GROUND LANDLORD. The grantor of an es-
tate on which a ground-rent is reserved.
GROUND OF ACTION. The basis of a suit; the
foundation or fundamental state of facts on which
an action rests; the real object of the plaintiff in
bringing his suit. Nash v. Adams, 24 Conn. 39;
Appeal of Huntington, 73 Conn. 582, 48 A. 766.
GROUND RENT. A perpetual rent reserved to
himself and his heirs, by the grantor of land in
fee-simple, out of the land conveyed. It is in
the nature of an emphyteutic rent. Also, in Eng-
lish law, rent paid on a building lease. Hart v.
Anderson, 48 A. 636, 198 Pa. 558; Sturgeon v. Ely,
6 Pa. 406; Franciscus v. Reigart, 4 Watts., Pa.,
116.
GROUND WRIT. Prior to the English common-
law procedure act, 1852, c. 121 a ca. sa. or fi. fa.
could not be issued into a county different from
that in which the venue in the action was laid,
without first issuing a writ, called a "ground writ,"
into the latter county, and then another writ,
which was called a "testatum writ," into the for-
mer. Wharton.
GROUNDAGE. A custom or tribute paid for the
standing of shipping in port. Jacob.
GROUP INSURANCE. A contract of "group in-
surance" is one between insurer and employer for
benefit of employees. Crawford v. Metropolitan
Life Ins. Co., Mo.App., 167 S.W.2d 915, 924. In its
nature group insurance is similar, if not identical
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GUARANTY
with that form of insurance known as term in-
surance. Watkins v. Metropolitan Life Ins., Co.,
La.App., 174 So. 885, 888.
GROWING CROP. A crop must be considered
and treated as a growing crop from the time the
seed is deposited in the ground, as at that time
the seed loses the qualities of a chattel, and be-
comes a part of the freehold, and passes with a
sale of it. Wilkinson v. Ketler, 69 Ala. 435.
Things commonly planted, cultivated, and harvest-
ed for use or profit of husbandman. Pelham v.
State, 20 Ala.App. 359, 102 So. 462, 463.
GROWTH HALF-PENNY. A rate paid in some
places for the tithe of every fat beast, ox, or other
unfruitful cattle. Clayt. 92.
GRUARII. The principal officers of a forest.
GRUB STAKE. In mining law, a contract be-
tween two parties by which one undertakes to
furnish the necessary provisions, tools, and other
supplies, and the other to prospect for and locate
mineral lands and stake out mining claims there-
on, the interest in the property thus acquired in-
uring to the benefit of both parties, either equally
or in such proportion as their agreement may fix.
Berry v. Woodburn, 107 Cal. 512, 40 P. 804; Hart-
ney v. Gosling, 10 Wyo. 346, 68 P. 1118, 98 Am.St.
Rep. 1005; Mattocks v. Gibbons, 94 Wash. 44, 162
P. 19, 22.
GUADALUPE HIDALGO, TREATY OF. A treaty
between the United States and Mexico, terminat-
ing the Mexican War, dated February 2, 1848.
See Gadsden Purchase.
GUADIA. In old European law, a pledge. Spel-
man; Calvin. A custom. Spelman. Spelled also
"wadia."
GUARANTEE. One to whom a guaranty is made.
Dallas v. Wagner, 204 N.C. 517, 168 S.E. 838, 839.
This word is also used, as a noun, to denote the
contract of guaranty or the obligation of a guar-
antor, and, as a verb, to denote the action of as-
suming the responsibilities of a guarantor.
GUARANTEE STOCK. "Guarantee stock" of a
building and loan association is a fixed non-with-
drawal investment which guarantees to all other
investors in the association a fixed rate of divi-
dend or interest. Stumph v. Wheat Belt Building
& Loan Ass'n of Pratt, 148 Kan. 25, 79 P.2d 896,
899.
GUARANTIED STOCK. See Stock.
GUARANTOR. He who makes a guaranty. In re
Ford, D.C.Wash., 14 F.2d 848, 849.
GUARANTY, v. To undertake collaterally to
answer for the payment of another's debt or the
performance of another's duty, liability, or obliga-
tion; to assume the responsibility of a guarantor;
to warrant. See Guaranty, n.
GUARANTY, n. A collateral agreement for per-
formance of another's undertaking. Kelly-Spring-
field Tire Co. v. Hamilton, 230 Mo.App. 430, 91
Black's Law Dictionary Revised 4th Ed.-53
S.W.2d 193. A promise to answer for payment of
debt or performance of obligation if person liable
in first instance fails to make payment or per-
form obligation. McGee v. F. W. Poe Mfg. Co.,
176 S.C. 288, 180 S.E. 48, 51, 99 A.L.R. 1468. An
undertaking by one person to be answerable for
the payment of some debt, or the due performance
of some contract or duty, by another person, who
himself remains liable to pay or perform the same.
Story, Prom. Notes, § 457. A promise to answer
for the debt, default, or miscarriage of another
person. Civil Code Cal. § 2787.
A guaranty is a contract that some particular thing shall
be done exactly as it is agreed to be done, whether it is to
be done by one person or another, and whether there be a
prior or principal contractor or not. Redfield v. Haight,
27 Conn. 31.
The definition of a "guaranty," by text-writers, is an
undertaking by one person that another shall perform his
contract or fulfill his obligation, or that, if he does not, the
guarantor will do it for him. A guarantor of a bill or note
is said to be one who engages that ,the note shall be paid,
but is not an indorser or surety. Gridley v. Capen, 72
Ill. 13.
Synonyms
The terms guaranty and suretyship are sometimes used
interchangeably; but they should not be confounded. The
contract of a guarantor is his own separate contract. It is
in the nature of a warranty by him that the thing guar-
antied to be done by the principal shall be done, not merely
an engagement jointly with the principal to do the thing.
The original contract of the principal is not his contract,
and he is not bound to take notice of its non-performance.
Durham v. Manrow, 2 N.Y. 548; Nading v. McGregor, 121
Ind. 465, 23 N.E. 283, 6 L.R.A. 686; Hoosier Brick Co. v.
Floyd County Bank, 64 Ind.App. 445, 116 N.E. 87, 90; W. T.
Rawleigh Co. v. Salter, 31 Ga.App. 329, 120 S.E. 679, 681.
Guaranty and warranty are derived from the same root,
and are in fact etymologically the same word, the "g" of
the Norman French being interchangeable with the English
"w." They are often used colloquially and in commercial
transactions as having the same signification, as where a
piece of machinery or the produce of an estate is "guar-
antied" for a term of years, "warranted" being the more
appropriate term in such a case. Accumulator Co. v. Dubu-
que St. R. Co., Iowa, 64 P. 70, 12 C.C.A. 37; Martinez v.
Earnshaw, 36 Wkly.Notes Cas., Pa., 502. A distinction is
also sometimes made in commercial usage, by which the
term "guaranty" is understood as a collateral warranty
(often a conditional one) against some default or event in
the future, while the term "warranty" is taken as meaning
an absolute undertaking in prcesenti, against the defect, or
for the quantity or quality contemplated by the parties in
the subject-matter of the contract. Sturges v. Bank of
Circleville, 11 Ohio St. 169, 78 Am.Dec. 296. But in strict
legal usage the two terms are widely distinguished in this,
that a warranty is an absolute undertaking or liability on
the part of the warrantor, and the contract is void unless
it is strictly and literally performed, while a guaranty is
a promise, entirely collateral to the original contract, and
not imposing any primary liability on the guarantor, but
binding him to be answerable for the failure or default of
another. Masons' Union L. Ins. Ass'n v. Brockman, 20 Ind.
App. 206, 50 N.E. 493.
Absolute guaranty. An unconditional undertaking by a
guarantor that debtor will pay debt or perform the obliga-
tion. An unconditional promise of payment or perform-
ance of principal contract on default of principal debtor or
obligor. Robey v. Walton Lumber Co., 17 Wash.2d 242, 135
P.2d 95, 102, 145 A.L.R. 924.
Collateral guaranty. A contract by which the guarantor
undertakes, in case the principal fails to do what he has
promised or undertaken to do, to pay damages for such
failure; distinguished from an engagement of suretyship
in this respect, that a surety undertakes to do the very
thing which the principal has promised to do, in case the
latter defaults. Woody v. Haworth, 24 Ind.App. 634, 57
N.E. 272; Nading v. McGregor, 121 Ind. 470, 23 N.E. 283,
6 L.R.A. 686.
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GUARANTY
Conditional guaranty. One which depends upon some
extraneous event, beyond the mere default of the principal,
and generally upon notice of the guaranty, notice of the
principal's default, and reasonable diligence in exhausting
proper remedies against the principal. Yager v. Title Co.,
112 Ky. 932, 66 S. W. 1027; Tobacco Co. v. Heid, D.C.
Alaska, 62 F. 962; Wall v. Eccles, 61 Utah, 247, 211 P. 702,
703.
Continuing guaranty. One relating to a future liability
of the principal, under successive transactions, which either
continue his liability or from time to time renew it after
it has been satisfied. Sewing Mach. Co. v. Courtney, 141
Cal. 6'74, 75 P. 296; Buck v. Burk, 18 N.Y. 340; German
Say . Bank v. Drake, Iowa, 79 N.W. 121; Glaser, Kohn &
Co. v. U. S., C.C.A./11., 224 F. 84, 86; Hirning v. Jacob-
sen, 51 S.D. 270, 213 N.W. 505, 507.
Special guaranty. A guaranty which is available only to
the particular person to whom it is offered or addressed;
as distinguished from a general guaranty, which will op-
erate in favor of any person who may accept it. Everson
v. Gere, 40 Hun, N.Y., 250; Tidioute Sa y . Bank v. Libbey,
101 Wis. 193, 77 N.W. 182, 70 Am.St.Rep. 907; Jobes v.
Miller, 201 Mo.App. 45, 209 S.W. 549, 550.
Guaranty. company. A corporation authorized to trans-
act the business of entering into contracts of guaranty and
suretyship; as, one which, for fixed premiums, becomes
surety on judicial bonds, fidelity bonds, and the like. See
'Etna L. Ins. Co. v. Coulter, 25 Ky.L.Rep. 193, 74 S.W.
1050.
GUARANTY FUND. Statutes have made provi-
sion for depositors' guaranty funds to be raised,
in whole or in part, by assessments on banks and
to be used to pay the depositors of an insolvent
bank. Noble State Bank v. Haskell, 219 U.S. 104,
31 S.Ct. 1.86, 55 L.Ed. 112, 32 L.R.A.,N.S., 1062, Ann.
Cas.1912A, 487; Shallenberger v. Bank, 219 U.S.
114, 31 S.Ct. 189, 55 L.Ed. 117; Assaria State Bank
v. Dolley, 219 U.S. 121, 31 S.Ct. 189, 55 L.Ed. 123;
Abilene Nat. Bank v. Dolley, 228 U.S. 1, 33 S.Ct.
409, 57 L.Ed. 707.
GUARANTY INSURANCE. See Insurance.
GUARDAGE. A state of wardship.
GUARDIAN. A guardian is a person lawfully
invested with the power, and charged with the
duty, of taking care of the person and managing
the property and rights of another person, who,
for some peculiarity of status, or defect of age,
understanding, or self-control, is considered in-
capable of administering his own affairs. Bass
v. Cook, 4 Port., Ala., 392; Sparhawk v. Allen, 21
N.H. 27; Burger v. Frakes, 67 Iowa, 460, 23 N.W.
746; Fleming v. Leibe, 95 N.J.Eq. 129, 122 A. 616.
One who legally has the care and management
of the person, or the estate, or both, of a child
during its minority. Reeve, Dom. Rel. 311.
This term might be appropriately used to designate the
person charged with the care and control of idiots, lunatics,
habitual drunkards, spendthrifts, and the like; but such
person is, under many of the statutory systems authorizing
the appointment, styled "committee," and in common us-
age the name "guardian" is applied only to one having the
care and management of a minor.
Classification
A testamentary guardian is one appointed by the deed or
last will of the child's father; while a guardian by election
is one chosen by the infant himself in a case where he
would otherwise be without one.
A general guardian is one who has the general care and
control of the person and estate of his ward; while a
special guardian is one who has specie] or limited powers
and duties with respect to his ward, e. g., a guardian who
has the custody of the estate but not of the person, or vice
versa, or a guardian ad litem.
A domestic guardian is one appointed at the place where
the ward is legally domiciled; while a foreign guardian de-
rives his authority from appointment by the courts of an-
other state, and generally has charge only of such property
as may be located within the jurisdiction of the power ap-
pointing him.
A guardian ad litem is a guardian appointed by a court of
justice to prosecute or defend for an infant in any suit to
which he may be a party, 2 Steph.Comm. 342; Crawford
v. Amusement Syndicate Co., Mo., 37 S.W.2d 581, 584.
Most commonly appointed for infant defendants, infant
plaintiffs generally suing by next friend. This kind of
guardian has no right to interfere with the infant's person
or property. 2 Steph.Comm. 343; Richter v. Leiby, 107
Wis. 404, 83 N.W. 694; Morris v. Standard Oil Co., 192
Cal. 343, 219 P. 998, 1000, 30 A.L.R. 1103.
A guardian by appointment of court has custody of the
infant until the attainment of full age. 2 Steph.Comm.
341; 2 Kent, Comm. 226.
A guardian by nature is the father, and,,,on nis death,
the mother, of a child. 1 Bl.Comm. 461; 2 Kent, Comm.
219; Daniels v. Metropolitan Life Ins. Co., 135 Pa.Super.
450, 5 A.2d 608, 611. This guardianship extends only to the
custody of the person of the child to the age of twenty-one
years. Sometimes called "natural guardian," but this is
rather a popular than a technical mode of expression. 2
Steph.Comm. 337; Kline v. Beebe, 6 Conn. 500; Mauro v.
Ritchie, 16 Fed.Cas. 1171.
A guardian by statute is a guardian appointed for a
child by the deed or last will of the father, and who has
the custody both of his person and estate until the attain-
ment of full age. This kind of guardianship is founded on
the statute of 12 Car. II. c. 24, and ,has been pretty exten-
sively adopted in this country. 1 Bl.Comm. 462; 2 Steph.
Comm. 339, 340; 2 Kent, Comm. 224-226; Huson v. Green,
88 Ga. 722, 16 S.E. 255.
A guardian for nurture is the father, or, at his decease,
the mother, of a child. This kind of guardianship extends
only to the person, and determines when the infant arrives
at the age of fourteen. 2 Kent, Comm. 221; 1 Bl.Comm.
461; 2 Steph.Comm. 338; Mauro v. Ritchie, 16 Fed.Cas.
1171; Arthurs' Appeal, 1 Grant Cas., Pa., 56.
Guardian in chivalry. In the tenure by knight's service,
in the feudal law, if the heir of the feud was under the age
of twenty-one, being a male, or fourteen, being a female,
the lord was entitled to the wardship (and marriage) of
the heir, and was called the "guardian in chivalry." This
wardship consisted in having the custody of the body and
lands of such heir, without any account of the profits. 2
Bl.Comm. 67.
Guardian in socage. At the common law, this was a
species of guardian who had the custody of lands coming
to the infant by descent, as also of the infant's person,
until the latter reached the age of fourteen. Such guard-
ian was always "the next of kin to whom the inheritance
cannot possibly descend." 1 Bl.Comm. 461; 2 Steph.Comm.
338; Byrne v. Van Hoesen, 5 Johns., N.Y., 67; Combs v.
Jackson, 2 Wend., N.Y., 157, 19 Am.Dec. 568.
Natural guardian. The father of a child, or the mother if
the father be dead.
"Guardian de son tort," sometimes described as "quasi
guardian" or "guardian by estoppel," is one who assumes
to act as guardian without valid authority. Rear v. Olson,
219 Wis. 322, 263 N.W. 357.
GUARDIAN DE L'EGLISE. A church-warden.
GUARDIAN DE L'ESTEMARY. The warden of
the stannaries or mines in Cornwall, etc.
GUARDIAN OF THE PEACE. A warden or con-
servator of the peace.
GUARDIAN OF THE POOR. In English Jaw, a
person elected by the ratepayers of a parish to
have the charge and management of the parish
work-house or union. See 3 Steph. Comm. 203,
215.
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GUILLOTINE
GUARDIAN OF THE SPIRITUALITIES. The
person to whom the spiritual jurisdiction of any
diocese is committed during the vacancy of the
see.
GUARDIAN OF THE TEMPORALITIES. The
person to whose custody a vacant see or abbey
was committed by the crown.
GUARDIAN OR WARDEN, OF THE CINQUE
PORTS. A magistrate who has the jurisdiction
of the ports or havens which are called the
"Cinque Ports," ( q. v.). This office was first cre-
ated in England, in imitation of the Roman policy,
to strengthen the sea-coasts against enemies, etc.
GUARDIANSHIP. The office, duty, or authority
of a guardian. Also the relation subsisting be-
tween guardian and ward.
GUARDIANUS. A guardian, warden, or keeper.
Spelman.
GUARENTIGIO. In Spanish law, a written au-
thorization to a court to enforce the performance
of an agreement in the same manner as if it had
been decreed upon regular legal proceedings.
GUARNIMENTUM. In old European law, a pro-
vision of necessary things. Spelman. A furnish-
ing or garnishment.
GUASTALD. One who had the custody of the
royal mansions.
GUBERNATOR. Lat. In Roman law, the pilot
or steersman of a ship.
GUERILLA PARTY. In military law, an inde-
pendent body of marauders or armed men, not
regularly or organically connected with the arm-
ies of either belligerent, who carry on a species
of irregular war, chiefly by depredation and mas-
sacre.
GUERPI, GUERPY. L. Fr. Abandoned; left;
deserted. Britt. c. 33.
GUERRA, GUERRE. War. Spelman.
GUEST. A person entertained for pay at inn,
tavern, or hotel on general undertaking of keeper
thereof. Murray v. Hagens, La.App., 143 So. 505,
506, 507. A traveler who lodges at an inn or tav-
ern with the consent of the keeper. Bac. Abr.
"Inns," C, 5; 8 Coke, 32; McDaniels v. Robinson,
26 Vt. 316, 62 Am.Dec. 574.
A guest, as distinguished from a boarder, is bound for
no stipulated time. He stops at the inn for a short or as
long time as he pleases, paying, while he remains, the cus-
tomary charge. Stewart v. McCready, 24 How.Prac. N.Y.
62; McIntosh v. Schops, 92 Or. 307, 180 P. 593, 595; Good-
year Tire & Rubber Co. v. Altamont Springs Hotel Co.,
206 Ky. 494, 267 S.W. 555, 557.
A "guest" in an automobile is one who takes
ride in automobile driven by another person, mere-
ly for his own pleasure or on his own business,
and without making any return or conferring any
benefit on automobile driver. Elliott v. Camper,
8 W.W.Harr. 504, 194 A. 130, 133; Blashfield, Cyc.
of Automobile Law and Prac., Perm. Ed., § 2291.
GUEST-TAKER. An agister; one who took cat-
tle in to feed in the royal forests. Cowell.
GUET. In old French law, watch. Ord. Mar. liv.
4, tit. 6.
GUIA. In Spanish law, a right of way for nar-
row carts. White, New Recop. 1. 2, c. 6, § 1.
GUIDAGE. In old English law, that which was
given for safe conduct through a strange terri-
tory, or another's territory. Cowell.
The office of guiding of travelers through dan-
gerous and unknown ways. 2 Inst. 526.
GUIDE-PLATE. An iron or steel plate to be at-
tached to a rail for the purpose of guiding to their
place on the rail wheels thrown off the track.
Pub. St. Mass. 1882, p. 1291.
GUIDON DE LA MER. The name of a treatise
on maritime law, by an unknown author, supposed
to have been written about 1671 at Rouen, and con-
sidered, in continental Europe, as a work of high
authority.
GUILD. A voluntary association of persons pur-
suing the same trade, art, profession, or business,
such as printers, goldsmiths, wool merchants, etc..
united under a distinct organization of their own,
analogous to that of a corporation, regulating the
affairs of their trade or business by their own laws
and rules, and aiming, by co-operation and organ-
ization, to protect and promote the interests of
their common vocation.
In medieval history these fraternities or guilds played
an important part in the government of some states; as at
Florence, in the thirteenth and following centuries, where
they chose the council of government of the city. The
word is said to be derived from the Anglo-Saxon "gild" or
"geld," a tax or tribute, because each member of the soci-
ety was required to pay a tax towards its support.
GUILD RENTS. Rents payable to the crown by
any guild, or such as formerly belonged to relig-
ious guilds, and came to the crown at the general
dissolution of the monasteries. Tomlins.
GUILDHALL. The hall or place of meeting of a
guild, or gild.
The place of meeting of a municipal corpora-
tion. 3 Steph. Comm. 173, note. The mercantile
or commercial gilds of the Saxons are supposed
to have given rise to the present municipal cor-
porations of England, whose place of meeting is
still called the "Guildhall."
GUILDHALL SITTINGS. The sittings held in the
Guildhall of the city of London for city of Lon-
don causes.
GUILLOTINE. An instrument for decapitation,
used in France for the infliction of the death pen-
alty on convicted criminals, consisting, essentially,
of a heavy and weighted knife-blade moving per-
pendicularly between grooved posts, which is
made to fall from a considerable height upon the
neck of the sufferer, immovably fixed in position
to receive the impact.
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GUILT
GUILT. In criminal law, that quality which im-
parts criminality to a motive or act, and renders
the person amenable to punishment by the law.
That disposition to violate the law which has
manifested itself by some act already done. The
opposite of innocence. See Ruth. Inst. b. 1, c. 18,
§ 10.
GUILTY. Having committed a crime or tort;
the word used by a prisoner in pleading to an in-
dictment when he confesses the crime of which he
is charged, and by the jury in convicting. Corn.
v. Walter, 83 Pa. 108, 24 Am.Rep. 154; Jessie v.
State, 28 Miss. 103; State v. White, 25 Wis. 359.
Responsible for a delinquency, crime, or sin, and
the connotation of such word is "evil", "wrong.
doing", or "culpability". Hilkert v. Canning, 58
Ariz. 290, 119 P.2d 233, 236.
GUINEA. A coin formerly issued by the English
mint, but all these coins were called in the time
of Wm. IV. The word now means only the sum
of £1 18., in which denomination the fees of coun-
sel are always given.
GULA-THING. A collection of Scandinavian
customs in force in the southern part of Norway.
The Frosta-thing was in force in the more north-
erly division of Dronheim. They are said to help
to an understanding of the law prevailing in the
northern part of England, where the Danish in-
fluence was strongest. 2 Holdsw. Hist. E. L. 23.
GULE OF AUGUST. The first of August, being
the day of St. Peter ad Vincula.
GULES. The heraldic name of the color usually
called "red." The word is derived from the Arabic
word "gule," a rose, and was probably introduced
by the Crusaders. Gules is denoted in engravings
by numerous perpendicular lines. Heralds who
blazoned by planets and jewels called it "Mars,"
and "ruby." Wharton.
GUN. A firearm for throwing a projectile with
gunpowder. Highsaw v. Creech, 17 Tenn.App. 573,
69 S.W.2d 249. A portable firearm such as a rifle,
shotgun, carbine, etc. Henderson v. State, 75 Fla.
464, 78 So. 427, 428. A pistol or revolver. State
v. Christ, 189 Iowa, 474, 177 N.W. 54, 57.
GURGES. Lat. Properly a whirlpool, but in old
English law and conveyancing, a deep pit filled
with water, distinguished from "stagnum," which
was a shallow pool or pond. Co. Litt. 5; Johnson
v. Rayner, 6 Gray, Mass., 107.
GURGITES. Wears. Jacob.
GUST. See Gest.
GUTI. Jutes; one of the three nations who mi-
grated from Germany to Britain at an early per-
iod. According to Spelman, they established
themselves chiefly in Kent and the Isle of Wight.
GUTTER. The diminutive of a sewer. Callis,
Sew. (80,) 100. In modern law, an open ditch or
conduit designed to allow the passage of water
from one point to another in a certain direction,
whether for purposes of drainage, irrigation, or
otherwise. Warren v. Henly, 31 Iowa 31; Willis
v. State, 27 Neb. 98, 42 N.W. 920.
GWABR MERCHED. Maid's fee. A British word
signifying a customary fine payable to lords of
some manors on marriage of the tenant's daugh-
ters, or otherwise on their committing incontin-
ence. Cowell.
GWALSTOW. A place of execution. Jacob.
GWAYF. Waif, or waived; that which has been
stolen and afterwards dropped in the highway for
fear of a discovery. Cowell.
GYLPUT. The name of a court which was held
every three weeks in the liberty or hundred of
Pathbew in Warwick. Jacob.
GYLTWITE, or GUILTWIT. Sax. Compensa-
tion for fraud or trespass. Cowell.
GYNARCHY, or GYNIECOCRACY. Government
by a woman; a state in which women are legally
capable of the supreme command; e. g., in Great
Britain.
GYNECOLOGIST. A physician specializing in
diseases of the female organs. Simonet v. Frank
F. Pellissier & Sons, 61 Cal.App.2d 41, 141 P.2d
922, 924.
GYNECOLOGY. The science which treats of the
structure and diseases of women. Zerr v. Zerr,
188 Ky. 233, 221 S.W. 550, 551.
GYRATION. Movement about a fixed point.
Great Western Mfg. Co. v. Lowe, D.C.Mich., 13
F.2d 880, 881.
GYRATORY STONE-CRUSHER. A machine
with a shaft or crushing means which, instead
of rotating, gyrates or moves in a circular course
under the control of an eccentric. Traylor Engi-
neering & Mfg. Co. v. Worthington Pump & Ma-
chinery Co., C.C.A.Pa., 1 F.2d 833.
GYROVAGI. Wandering monks.
GYVES. Fetters or shackles for the legs.
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HABEAS
H
H. This letter, as an abbreviation, stands for
Henry (a king of that name) in the citation of
English statutes. In the Year Books, it is used
as an abbreviation for Hilary term. In tax assess-
ments and other such official records, "h" may be
used as an abbreviation for "house," and the
courts will so understand it. Alden v. Newark,
36 N.J.L. 288; Parker v. Elizabeth, 39 N.J.L. 693.
H. A. An abbreviation for hoc anno, this year,
in this year.
H. B. An abbreviation for house bill, i. e., a bill
in the house of representatives, as distinguished
from a senate bill.
H. B. M. An abbreviation for His (or Her) Bri-
tannic Majesty.
H. C. An abbreviation for house of commons, or
for habeas corpus.
H. H. F. A. Housing and Home Finance Agency.
H. I. H. His (or Her) Imperial Highness.
H. L. An abbreviation for house of lords.
H. R. An abbreviation for house of representa-
tives.
H. T. An abbreviation for hoc titulo, this title,
under this title; used in references to books.
H. V. An abbreviation for hoc verbo or how voce,
this word, under this word; used in references to
dictionaries and other works alphabetically ar-
ranged.
HABE, or HAVE. Lat. A form of the salutatory
expression "Ave" (hail) in the titles of the con-
stitutions of the Theodosian and Justinian Codes.
Calvin; Spelman.
HABEAS CORPORA JURATORUM. A writ com-
manding the sheriff to bring up the persons of
jurors, and, if need were, to distrain them of their
lands and goods, in order to insure or compel their
attendance in court on the day of trial of a cause.
It issued from the Common Pleas, and served the
same purpose as a distringas juratores in the
King's Bench. It was abolished by the C. L. P.
Act, 1852, § 104. Brown.
HABEAS CORPUS. Lat. (You have the body.)
The name given to a variety of writs, (of which
these were anciently the emphatic words,) hav-
ing for their object to bring a party before a court
or judge. In common usage, and whenever these
words are used alone, they are understood to mean
the habeas corpus ad sub jiciendum, (see infra.)
Dancy v. Owens, 126 Okl. 37, 258 P. 879, 884; In re
McDevitt, 101 Misc. 588, 168 N.Y.S. 433; U. S. v.
Tod, 263 U.S. 149, 44 S.Ct. 54, 57, 68 L.Ed. 221;
Payne v. Graham, 20 Ala.App. 439, 102 So. 729,
731.
The sole function of the writ is to release from unlaw-
ful imprisonment. People ex rel. Luciano v. Murphy, 160
Misc. 573, 290 N.Y.S. 1011. The office of the writ is not to
determine prisoner's guilt or innocence, and only issue
which it presents is whether prisoner is restrained of his
liberty by due process. Ex parte Presnell, 58 Okl.Cr. 50,
49 P.2d 232.
HABEAS CORPUS ACT. The English statute of
31 Car. II. c. 2, is the original and prominent ha-
beas corpus act. It was amended and supplement-
ed by St. 56 Geo. III. c. 100. And similar statutes
have been enacted in all the United States. This
act is justly regarded as the great constitutional
guaranty of personal liberty.
HABEAS CORPUS AD DELIBERANDUM ET
RECIPIENDUM. A writ which is issued to re-
move, for trial, a person confined in one county
to the county or place where the offense of which
he is accused was committed. Bac. Abr. "Habeas
Corpus," A; 1 Chit. Crim. Law, 132. Ex parte
Bollman, 4 Cranch, 97, 2 L.Ed. 554. Thus, it has
been granted to remove a person in custody for
contempt to take his trial for perjury in another
county. 1 Tyrw. 185.
HABEAS CORPUS AD FACIENDUM ET RECIP-
IENDUM. A writ issuing in civil cases to remove
the cause, as also the body of the defendant, from
an inferior court to a superior court having juris-
diction, there to be disposed of. It is also called
"habeas corpus cum causa." Ex parte Bollman,
4 Cranch, 97, 2 L.Ed. 554.
HABEAS CORPUS AD PROSEQUENDUM. A
writ which issues when it is necessary to remove
a prisoner in order to prosecute in the proper
jurisdiction wherein the fact was committed. 3
Bl. Comm. 130; State ex rel. Deeb v. Fabisinski,
111 Fla. 454, 152 So. 207, 210.
HABEAS CORPUS AD RESPONDENDUM. A
writ which is usually employed in civil cases to
remove a person out of the custody of one court
into that of another, in order that he may be sued
and answer the action in the latter. 2 Sell. Pr.
259; 2 Mod. 198; 3 Bl. Comm. 129; 1 Tidd, Pr. 300.
HABEAS CORPUS AD SATISFACIENDUM. In
English practice. A writ which issues when a
prisoner has had judgment against him in an ac-
tion, and the plaintiff is desirous to bring him up
to some superior court, to charge him with process
of execution. 3 Bl. Comm. 129, 130; 3 Steph.
Comm. 693; 1 Tidd, Pr. 350.
HABEAS CORPUS AD SUBJICIENDUM. A writ
directed to the person detaining another, and
commanding him to produce the body of the pris-
oner, (or person detained,) with the day and
cause of his caption and detention, ad faciendum,
sub jiciendum et recipiendum, to do, submit to, and
receive whatsoever the judge or court awarding
the writ shall consider in that behalf. 3 Bl. Comm.
131; 3 Steph. Comm. 695.
This is the well-known remedy for deliverance from il-
legal confinement, called by Sir William Blackstone the
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HABEAS
most celebrated writ in the English law, and the great and
efficacious writ in all manner of illegal confinement. 3 Bl.
Comm. 129. The "great writ of liberty," issuing at com-
mon law out of courts of Chancery, King's Bench, Common
Pleas, and Exchequer. Ex parte Kelly, 123 N.J.Eq. 489,
198 A. 203, 207.
HABEAS CORPUS AD TESTIFICANDUM. At
common law, the writ, meaning "you have the
body to testify", used to bring up a prisoner de-
tained in a jail or prison to give evidence before
the court. Hottle v. District Court in and for
Clinton County, 233 Iowa 904, 11 N.W.2d 30, 34; 3
Bl. Comm. 130; 2 Tidd, Pr. 809. Ex parte Marma-
duke, 91 Mo. 250, 4 S.W. 91, 60 Am.Rep. 250.
HABEAS CORPUS CUM CAUSA. (You have the
body, with the cause.) Another name for the writ
of habeas corpus ad faciendum et recipiendum,
(q. V.) 1 Tidd, Pr. 348, 349.
HABEMUS OPTIMUM TESTEM, CONFITENT-
EM REUM. 1 Phil. Ev. 397. We have the best
witness,—a confessing defendant. "What is tak-
en pro confess° is taken as indubitable truth. The
plea of guilty by the party accused shuts out all
further inquiry. Habemus con fitentem reum is
demonstration, unless indirect motives can be as-
signed to it?' 2 Hagg. Eccl. 315.
HABENDUM. Lat. Portion of deed beginning
with the words "To have and to hold". Bannin v.
Peck, 266 App.Div. 209, 41 N.Y.S.2d 668, 670. The
clause usually following the granting part of the
premises of a deed, which defines the extent of
the ownership in the thing granted to be held and
enjoyed by the grantee. 3 Washb. Real Prop. 437;
New York Indians v. U. S., 170 U.S. 1, 18 S.Ct. 531,
42 L.Ed. 927; Freudenberger Oil Co. v. Simmons,
75 W.Va. 337, 83 S.E. 995, 997, Ann.Cas.1918A,
873; In re Tamargo, 220 N.Y. 225, 115 N.E. 462,
464.
The office of the "habendum" is properly to determine
what estate or interest is granted by the deed, though of-
fice may be performed by the premises, in which case the
habendum may lessen, enlarge, explain, or qualify, but
not totally contradict or be repugnant to, estate granted
in the premises. Claridge v. Phelps, Ind.App., 105 Ind.
App. 344, 11 N.E.2d 503, 504.
HABENDUM ET TENENDUM. In old convey-
ancing, to have and to hold. Formal words in
deeds of land from a very early period. Bract.
fol. 17b.
HABENTES HOMINES. In old English law, rich
men; literally, having men. The same with fcest-
ing-men, (q. v.) Cowell.
HABENTIA. Riches. Mon. Angl. t. 1, 100.
HABERE. Lat. In the civil law, to have. Some-
times distinguished from tenere, (to hold,) and
possidere, (to possess;) habere referring to the
right, tenere to the fact, and possidere to both.
Calvin.
HABERE FACIAS POSSESSIONEM. Lat. That
you cause to have possession. The name of the
process commonly resorted to by the successful
party in an action of ejectment, for the purpose
of being placed by the sheriff in the actual pos-
session of the land recovered. It is commonly
termed simply "habere facias," or "hab. fa."
HABERE FACIAS SEISINAM. L. Lat. That you
cause to have seisin. The writ of execution in
real actions, directing the sheriff to cause the de-
mandant to have seisin of the lands recovered. It
was the proper process for giving seisin of a free-
hold, as distinguished from a chattel interest in
lands.
HABERE FACIAS VISUM. Lat. That you cause
to have a view. A writ to cause the sheriff to take
a view of lands or tenements.
HABERE LICERE. Lat. In Roman law, to al-
low [one] to have [possession.] This phrase de-
noted the duty of the seller of property to allow
the purchaser to have the possession and enjoy-
ment. For a breach of this duty, an actio ex emp-
to might be maintained.
HABERGEON. A diminutive of hauberk (q. v.),
denoting a short coat of mail without sleeves.
Blount.
HABERJECTS. A cloth of a mixed color. Magna
Charta, c. 26.
HABETO TIBI RES TUAS. Lat. Have or take
your effects to yourself. One of the old Roman
forms of divorcing a wife. Calvin.
HABILIS. Lat. Fit; suitable; active; useful, (of
a servant.)  Proved; authentic, (of Book of
Saints.) Fixed; stable, (of authority of the king.)
Du Cange.
HABIT. A disposition or condition of the body
or mind acquired by custom or a usual repetition
of the same act or function. Conner v. Citizens'
St. R. Co., 146 Ind. 430, 45 N.E. 662; State v. Skilli-
corn, 104 Iowa, 97, 73 N.W. 503; Corn. v. Whitney,
5 Gray, Mass., 85. The customary conduct, to pur-
sue which one has acquired a tendency, from fre-
quent repetition of the same acts. Knickerbocker
Life Ins. Co. v. Foley, -105 U.S. 350, 26 L.Ed. 1055;
National Council of Knights and Ladies of Secur-
ity v. Fowler, 66 Okl. 294, 168 P. 914, 915, 6 A.L.R.
591; Woodmen of the World Life Ins. Soc. v.
Reese, 206 Ark. 530, 176 S.W.2d 708, 714.
HABIT AND REPUTE. Applied in Scotch law
to a general understanding and belief of some-
thing's having happened: thus, by the law of Scot-
land, marriage may be established by "habit and
repute" where the parties cohabit and are at the
same time held and reputed as man and wife.
See Bell. The same rule obtains in some of the
United States.
HABITABLE REPAIR. A covenant by a lessee
to "put the premises into habitable repair" binds
him to put them into such a state that they may
be occupied, not only with safety, but with rea-
sonable comfort, for the purposes for which they
are taken. Miller v. McCardell, 19 R.I. 304, 33 A.
445, 30 L.R.A. 682; 2 Mood. & R. 186.
HABITANCY. That fixed place of abode to which
a person intends to return habitually when absent.
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HABITUAL
Owens v. Huntling, C.C.A.Or., 115 F.2d 160, 162.
Settled dwelling in a given place; fixed and 'per-
manent residence there.
This term is more comprehensive than "domicile," for
one may be domiciled in a given place though he does not
spend the greater portion of his time there, or though he
may be absent for long periods. It is also more compre-
hensive than "residence," for one may reside in a given
place only temporarily or for short periods on the occasion
of repeated visits. But in neither case could he properly be
called an "inhabitant" of that place or be said to have his
"habitancy" there. Atkinson v. Washington & Jefferson
College, 54 W.Va. 32, 46 S.E. 253; Hairston v. Hairston,
27 Miss. 711, 61 Am.Dec. 530; Abington v. North Bridge-
water, 23 Pick., Mass., 170. And see Domicile; Residence.
It is difficult to give an exact definition of "habitancy."
In general terms, one may be designated as an "inhabit-
ant" of that place which constitutes the principal seat of
his residence, of his business, pursuits, connections, at-
tachments, and of his political and municipal relations.
The term, therefore, embraces the fact of residence at a
place, together with the intent to regard it and make it a
home. The act and intent must concur. Lyman v. Fiske,
17 Pick., Mass., 231, 28 Am.Dec. 293.
HABITANT. Fr. In French and Canadian law,
a resident tenant; a settler; a tenant who kept
hearth and home on the seigniory. A native of
Canada of French descent, particularly of the
peasant or farming class.
HABITATIO. Lat. In the civil law, the right of
dwelling; the right of free residence in another's
house. Inst. 2, 5; Dig. 7, 8.
HABITATION.
In the civil law. The right of a person to
live in the house of another without preju-
dice to the property. It differed from a usu-
fruct, in this: that the usufructuary might apply
the house to any purpose, as of a store or manu-
factory; whereas the party having the right of
habitation could only use it for the residence of
himself and family. 1 Browne, Civil Law, 184.
In Estates. A dwelling-house; a homestall. 2
Bl.Comm. 4; 4 Bl.Comm. 220; Holmes v. Oregon
& C. R. Co., D.C.Or., 5 F. 527; Nowlin v. Scott, 10
Grat., Va., 65; Harvard College v. Gore, 5 Pick.,
Mass., 372.
In its generic sense, the term denotes a place of abode,
but as used in a restrictive building covenant it may be
synonymous simply with "dwelling." Goodhue v. Fennell,
164 App.Div. 821, 150 N.Y.S. 435, 436.
HABITUAL. Customary, usual, of the nature of
a habit; its synonyms are customary, common,
regular; while its antonyms are unusual, unwont-
ed, extraordinary, rare. Illinois Bankers Life
Ass'n v. Theodore, 47 Ariz. 314, 55 P.2d 806, 811.
Formed or acquired by or resulting from hab-
it; frequent use or custom. Moore v. State, 111
Tex.Cr.R. 461, 14 S.W.2d 1041. The "habitual" in-
dulgence in violent and ungovernable temper as
a ground for divorce is not synonymous with "fre-
quent." Kellogg v. Kellogg, 93 Fla. 261, 111 So.
637, 638.
HABITUAL CRIMINAL. By statute in several
states, one who is convicted of a felony, having
been previously convicted of any crime (or twice
so convicted), or who is convicted of a misdemean-
or and has previously (in New York) been five
times convicted of a misdemeanor. Crim.Code
N.Y. § 510; Rev.St.Utah, 1898, § 4067 (Comp.Laws
1917, § 7907). In a more general sense, one made
subject to police surveillance and arrest on sus-
picion, on account of his previous criminal record
and absence of honest employment.
HABITUAL CRIMINALS ACT. The statute 32 &
33 Vict. c. 99. By this act power was given to ap-
prehend on suspicion convicted persons holding
license under the penal servitude acts, 1853, 1857,
and 1864. The act was repealed and replaced by
the prevention of crimes act, 1871, (34 & 35 Vict.
c. 112.)
HABITUAL DRUNKARD. One who has a fixed
habit of frequently getting drunk, though not
oftener drunk than sober, and though sober for
weeks at a time. Patton v. Commonwealth, 273
Ky. 307, 116 S.W.2d 652, 653.
One who frequently and repeatedly becomes intoxicated
by excessive indulgence in intoxicating liquor so as to
acquire a fixed habit and an involuntary tendency to be-
come intoxicated as often as the temptation is presented,
even though he remains sober for days or even weeks at a
time. Leonard v. Leonard, 221 Iowa 722, 266 N.W. 537,
538.
A person given to inebriety or the excessive use of in-
toxicating drink, who has lost the power or the will, by
frequent indulgence, to control his appetite for it. Lud-
wick v. Com., 18 Pa. 174; Gourlay v. Gourlay, 16 R.I. 705,
19 A. 142; McBee v. McBee, 22 Or. 329, 29 P. 887, 29 Am.St.
Rep. 613.
It is not necessary that the person shall have lost his will
power so that he cannot resist stimulants, Lester v.
Sampson, Mo.App., 180 S.W. 419, 421; or that he be in-
toxicated so often as to incapacitate him from attending
to his business for a considerable portion of time. Runkle
v. Southern Pac. Milling Co., 184 Cal. 714, 195 P. 398, 400,
16 A.L.R. 275.
In England, defined by the habitual drunkards act, 1879,
(42 & 43 Vict. c. 19,) which authorizes confinement in a
retreat, upon the party's own application, as "a person
who, not being amenable to any jurisdiction in lunacy, is,
notwithstanding, by reason of habitual intemperate drink-
ing of intoxicating liquor, at times dangerous to himself,
or herself, or others, or incapable of managing himself or
herself, or his or her affairs."
HABITUAL DRUNKENNESS, INTOXICATION,
or INTEMPERANCE. The custom or habit of
getting drunk; the constant indulgence in stim-
ulants, whereby intoxication is produced; not the
ordinary use, but the habitual use of them; the
habit should be actual and confirmed, but need
not be continuous, or even of daily occurrence.
Williams v. Goss, 43 La.Ann. 868, 9 So. 750; Short
v. Morrison, 159 La. 193, 105 So. 286, 288. As a
cause for divorce, the fixed habit of frequently
getting drunk; it does not necessarily imply con-
tinual drunkenness. Moor v. Moor, 211 Ala. 56, 99
So. 316, 318; Holm v. Holm, 44 Utah, 242, 139 P.
937, 938. That degree of intemperance from the
use of intoxicating drinks which disqualifies the
person a great portion of the time from properly
attending to business, or which would reasonably
inflict a course of great mental anguish upon the
innocent party. Rev.Codes Idaho, § 2652 (Code
1932, § 31-608). It has no reference to the exces-
sive or habitual use of drugs. Hayes v. Hayes, 86
Fla. 350, 98 So. 66, 67; Smith v. Smith, 7 Boyce,
Del., 283, 105 A. 833.
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HABITUALLY
HABITUALLY. Customarily; by frequent prac-
tice or use. It does not mean entirely or exclusive-
ly. Stanton v. French, 91 Cal. 274, 27 P. 657, 25
Am.St.Rep. 174.
HABITUM ET TONSURAM CLERICALEM.
Clerical attire and tonsure. 4 Bl.Comm. 367.
HABLE, L. Fr. In old English law, a port or
harbor; a station for ships. St. 27 Hen. VI. c. 3.
HACIENDA. In Spanish law, the public domain;
the royal estate; the aggregate wealth of the
state. The science of administering the national
wealth; public economy.
Also an estate or farm belonging to a private
person.
A royal estate. Newman & B. Dict.
HACK STAND. A private hack stand is a sta-
tion where taxicabs or other vehicles are kept
standing to solicit trade from the public indiscrim-
inately at all hours. Borland v. Curto, 121 Misc.
336, 201 N.Y.S. 236, 237.
HACKNEY. Let out for hire, or devoted to com-
mon use; as, "hackney coaches," "hackney car-
riages." State v. Jarvis, 89 Vt. 239, 95 A. 541,
543.
HACKNEY CARRIAGES. Carriages plying for
hire in the street. 2 C. 13, 877; Masterson v.
Short, 33 How.Pr., N.Y., 481; 17 & 18 Vict. c. 86;
Corn. v. Matthews, 122 Mass. 60.
HAD. As used in a statute providing that no suit,
action or proceeding to foreclose a mortgage or
trust deed shall be had or maintained, "had"
means commenced or begun. Friel v. Alewel, 318
Mo. 1, 298 S.W. 762, 764.
HADBOTE. In Saxon law, a recompense or sat-
isfaction for the violation of holy orders, or vio-
lence offered to persons in holy orders. Cowell;
Blount.
HADD. In Hindu law, a boundary or limit. A
statutory punishment defined by law, and not ar-
bitrary. Mozley & Whitley.
HADERUNGA. In old English law, hatred; ill
will; prejudice, or partiality. Spelman; Cowell.
Respect or distinction of persons, Jacob.
HADGONEL. In old English law, a tax or mulct.
Jacob.
HIEC EST CONVENTIO. Lat. This is an agree-
ment. Words with which agreements anciently
commenced. Yearb. H. 6 Edw. II. 191.
HIEC EST FINALIS CONCORDIA. L. Lat. This
is the final agreement. The words with which the
foot of a fine commenced. 2 Bl.Comm. 351.
HJEREDA. In Gothic law, a tribunal answering
to the English court-leet or hundred court.
HIEREDE ABDUCTO. An ancient writ that lay
for the lord, who, having by right the wardship
of his tenant under age, could not obtain his per-
son, the same being carried away by another per-
son. Old Nat. Brev. 93.
HIEREDE DELIBERANDO ALTERI QUI HABET
CUSTODIUM TERRIE. An ancient writ, directed
to the sheriff, to require one that had the body of
an heir, being in ward, to deliver him to the person
whose ward he was by reason of his land. Reg.
Orig. 161.
HIEREDE RAPTO. An ancient writ that lay for
the ravishment of the lord's ward. Reg. Orig. 163.
HLEREDEM DEUS FACIT, NON HOMO. God
makes the heir, not man. Co. Litt. 7b; Bract. 62b.
HIEREDES. Lat. In the civil law, heirs. The
plural of hceres (q. v.).
H1EREDES PROXIMI. Nearest or next heirs.
The children or descendants of the deceased.
HIEREDES REMOTIORES. More remote heirs.
The kinsmen other than children or descendants.
HiEREDES SUI ET NECESSARII. In Roman
law, own and necessary heirs; e., the lineal de-
scendants of the estate-leaver. They were called
"necessary" heirs, because it was the law that
made them heirs, and not the choice of either the
decedent or themselves. But since this was also
true of slaves (when named "heirs" in the will)
the former class were designated "sui et neces-
sarii," by way of distinction, the word "sui" de-
noting that the necessity arose from their relation-
ship to the decedent. Mackeld. Rom. Law, § 733.
HLEREDIPETA. Lat. In old English law, a seek-
er of an inheritance; hence, the next heir to lands.
Du Cange.
H1EREDIPETZE SUO PROPINQUO VEL EX-
TRANEO PERICULOSO SANE CUSTODI NUL-
LUS COMMITTATUR. To the next heir, whether
a relation or a stranger certainly a dangerous
guardian, let no one be committed. Co. Litt. 88b.
HZEREDITAS.
In Roman law. The hcereditas was a universal
succession by law to any deceased person, whether
such person had died testate or intestate, and
whether in trust (ex fideicommisso) for another
or not. The like succession according to
torian law was bonorum possessio.
The hcereditas was called "jacens," until the hceres took
it up, i. e., made his aditio hcereditatis; and such hceres,
if a suus hceres, had the right to abstain, (potestas ab-
stinendi,) and, if an extraneus hceres, had the right to con-
sider whether he would accept or decline, (potestas deliber-
andi,) the reason for this precaution being that (prior to
Justinian's enactment to the contrary) a hceres after his
aditio was liable to the full extent of the debts of the de-
ceased person, and could have no relief therefrom, except
in the case of a damnum emergens or damnosa hcereditas,
i. e., an hcereditus which disclosed (after the aditio) some
enormous unsuspected liability. Brown. The theory was
that, though the physical person of the deceased had
perished, his legal personality survived and descended
unimpaired on his heirs in whom his legal identity was
continued.
In Old English Law. An estate transmissible
by descent; an inheritance. Co. Litt. 9.
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HIERES
HIEREDITAS, ALIA CORPORALIS, ALIA IN-
CORPORALIS; CORPORALIS EST, QU1E TANGI
POTEST ET VIDERI; INCORPORALIS QUZE
TANGI NON POTEST NEC VIDERI. Co. Litt. 9.
An inheritance is either corporeal or incorporeal.
Corporeal is that which can be touched and seen;
incorporeal, that which can neither be touched
nor seen.
HIEREDITAS DAMNOSA. A burdensome inherit-
ance; one which would be a burden instead of a
benefit, that is, the debts to be paid by the heir
would exceed the assets.
HIEREDITAS EST SUCCESSIO IN UNIVERSUM
JUS QUOD DEFUNCTUS HABUERIT. Co. Litt.
237. Inheritance is the succession to every right
which the deceased had.
HIEREDITAS JACENS. In civil law, a prostrate
or vacant inheritance. The inheritance left to a
voluntary heir was so called so long as he had not
manifested, either expressly or by silence, his ac-
ceptance or refusal of the inheritance. So long as
no one had acquired the inheritance, it was termed
"hcereditas jacens;" and this, by a legal fiction,
represented the person of the decedent. Mackeld.
Rom. Law, § 737. The estate of a person deceased,
where the owner left no heirs or legatee to take
it, called also "caduca;" an escheated estate. Cod.
10, 10, 1; 4 Kent, Comm. 425. The term has also
been used in English law to signify an estate in
abeyance; that is, after the ancestor's death, and
before assumption of heir. Co. Litt. 342b. An in-
heritance without legal owner, and therefore open
to the first occupant. 2 Bl.Comm. 259.
HIEREDITAS LEGITIMA. A succession or in-
heritance devolving by operation of law (intestate
succession) rather than by the will of the dece-
dent. Mackeld. Rom. Law, § 654.
HIEREDITAS LUCTUOSA. A sad or mournful in-
heritance or succession; as that of a parent to
the estate of a child, which was regarded as dis-
turbing the natural order of mortality (turbato
ordine mortalitatis.) Cod. 6, 25, 9; 4 Kent, Comm.
397. It was sometimes termed tristis successio.
HIEREDITAS NIHIL ALIUD EST, QUAM SUC-
CESSIO IN UNIVERSUM JUS, QUOD DEFUNC-
TUS HABUERIT. The right of inheritance is
nothing else than the faculty of succeeding to all
the rights of the deceased. Dig. 50, 17, 62.
HIEREDITAS NUNQUAM ASCENDIT. An in-
heritance never ascends. Glanv. lib. 7, c. 1; 2 Bl.
Comm. 211. A maxim of feudal origin, and which
invariably prevailed in the law of England down
to the passage of the statute 3 & 4 Wm. IV. c. 106,
§ 6, by which it was abrogated. 1 Steph.Comm.
378. See Broom, Max. 527, 528.
HIEREDITAS TESTAMENTARIA. Testamen-
tary inheritance, that is, succession to an estate
under and according to the last will and testament
of the decedent. Mackeld. Rom. Law, § 654.
HIEREDUM APPELLATIONE VENIUNT WERE-
DES HAEREDUM IN INFINITUM. By the title
of heirs, come the heirs of heirs to infinity. Co.
Litt. 9.
ILERES.
In Roman Law. The heir, or universal succes-
sor in the event of death. The heir is he who
actively or passively succeeds to the entire prop-
erty of the estate-leaver. He is not only the suc-
cessor to the rights and claims, but also to the
estate-leaver's debts, and in relation to his estate
is to be regarded as the identical person of the
estate-leaver, inasmuch as he represents him in all
his active and passive relations to his estate. Mac-
keld. Rom. Law, § 651.
The institution of the hceres was the essential character-
istic of a testament: if this was not done, the instrument
was called a codicillus. Mack.C.L. §§ 632, 650.
It should be remarked that the office, powers, and duties
of the hceres, in Roman law, were much more closely as-
similated to those of a modern executor than to those of an
heir at law. Hence "heir" is not at all an accurate trans-
lation of "hceres," unless it be understood in a special,
technical sense.
In Common Law. An heir; he to whom lands,
tenements, or hereditaments by the act of God
and right of blood to descend, of some estate of
inheritance. Co. Litt. 7b.
HIERES ASTRARIUS. In old English law, an
heir in actual possession of the house of his an-
cestor. Bract. 85, 267b.
HIERES DE FACTO. In old English law, heir
from fact; that is, from the disseisin or other
act of his ancestor, without or against right. An
heir in fact, as distinguished from an heir de jure,
or by law.
HIERES EST ALTER IPSE, ET FILIUS EST
PARS PATRIS. An heir is another self, and a
son is part of the father. 3 Coke, 12b.
HIERES EST AUT JURE PROPRIETATIS AUT
JURE REPRESENTATIONIS. An heir is either
by right of property, or right of representation.
3 Coke, 40b.
HIERES EST EADEM PERSONA CUM ANTE-
CESSORE. An heir is the same person with his
ancestor. Co. Litt. 22; Branch, Princ. See Nov.
48, c. 1, § 1.
HIERES EST NOMEN COLLECTWUM. "Heir"
is a collective name or noun. 1 Vent. 215.
HIERES EST NOMEN JURIS; FILIUS EST NO-
MEN NATURIE. "Heir" is a name or term of
law; "son" is a name of nature. Bac. Max. 52, in
reg. 11.
HIERES EST PARS ANTECESSORIS. An heir is
a part of the ancestor. So said because the ances-
tor, during his life, bears in his body (in judgment
of law) all his heirs. Co. Litt. 22b; Schoonmaker
v. Sheely, 3 Hill, N.Y., 165, 167.
HIERES EX ASSE. In the civil law, an heir
to the whole estate; a sole heir. Inst. 2, 23, 9.
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ILERES
HARES EXTRANEUS. In the civil law, a
strange or foreign heir; one who was not sub-
ject to the power of the testator, or person who
made him heir. Qui testatoris juri subjecti non
sunt, extranei hceredes appellantur. Inst. 2, 19, 3.
HARES FACTUS. In the civil law, an heir made
by will; a testamentary heir; the person created
universal successor by will. Story, Confl. Laws,
§ 507; 3 Bl.Comm. 224. Otherwise called "hceres
ex testamento," and "hceres institutus." Inst. 2,
9, 7; Id. 2, 14.
HARES FIDEICOMMISSARIUS. In the civil
law, the person for whose benefit an estate was
given to another (termed "hceres fiduciarius," q.
v.) by will. Inst. 2, 23, 6, 7, 9. Answering near-
ly to the cestui que trust of the English law.
HARES FIDUCIARIUS. A fiduciary heir, or heir
in trust; a person constituted heir by will, in trust
for the benefit of another, called the "fideicommis-
sarius."
HARES H1EREDIS NEI EST MEUS HARES.
The heir of my heir is my heir. Wharton, Law
Dict.
HARES INSTITUTUS. A testamentary heir; one
appointed by the will of the decedent.
HARES LEGITIMUS. A lawful heir; one point-
ed out as such by the marriage of his parents.
HARES LEGITIMUS EST QUEM NUPTI1E RE-
MONSTRANT. He is a lawful heir whom mar-
riage points out as such; who is born in wedlock.
Co. Litt. 7b; Bract. fol. 88; Fleta, lib. 6, c. 1;
Broom, Max. 515; Mirror of Just. 70; Dig. 2, 4, 5.
(As to the application of the principle when the
marriage is subsequent to the birth of the child,
see 2 Cl. & F. 571; 6 Bingh. N. C. 385; 5 Wheat.
226, 262, n., 5 L.Ed. 70.)
HARES MINOR UNO ET VIGINTI ANNIS NON
RESPONDEBIT, NISI IN CASU DOTIS. Moore,
348. An heir under twenty-one years of age is not
answerable, except in the matter of dower.
HARES NATUS. In the civil law, an heir born;
one born heir, as distinguished from one made
heir, (hceres factus, q. v.;) an heir at law, or by
intestacy, (ab intestato;) the next of kin by blood,
in cases of intestacy. Story, Confi. Laws, § 507;
3 Bl.Comm. 224. This is the only form of heirship
recognized in the English law. Wms. R. P., 6th
Am. ed. 96.
HARES NECESSARIUS. In the civil law, a nec-
essary or compulsory heir. This name was given
to the heir when, being a slave, he was named
"heir" in the testament, because on the death of
the testator, whether he would or not, he at once
became free, and was compelled to assume the
heirship. Inst. 2, 19, 1.
HARES NON TENETUR IN ANGLIA AD DEBI-
TA ANTECESSORIS REDDENDA, NISI PER AN-
TECESSOREM AD HOC FUERIT OBLIGATUS,
PR1ETERQUAM DEBITA REGIS TANTUM. Co.
Litt 386. In England, the heir is not bound to
pay his ancestor's debts, unless he be bound to it
by the ancestor, except debts due to the king. But
now, by 3 & 4 Wm. IV. c. 104, he is liable.
HARES RECTUS. In old English law, a right
heir. Fleta, lib. 6, c. 1, § 11.
HARES SUUS. In the civil law, a man's own
heir; a decedent's proper or natural heir. This
name was given to the lineal descendants of the
deceased. Persons who were in the power of the
testator but became sui juris at his death. Inst.
2, 13; 3, 1, 4, 5. Those descendants who were un-
der the power of the deceased at the time of his
death, and who are most nearly related to him.
Calvin.
HIERETARE. In old English law, to give a right
of inheritance, or make the donation hereditary
to the grantee and his heirs. Cowell.
H1ERETICO COMBURENDO. The statute 2 Hen.
IV. c. 15, de hceretico comburendo, was the first
penal law enacted against heresy, and imposed
the penalty of death by burning against all here-
tics who relapsed or who refused to abjure their
opinions. It was repealed by the statute 29 Car.
II. c. 9. Brown. This was also the name of a writ
for the purpose indicated. See, also, De HEeretico
Comburendo.
HAFNE. A haven or port. Cowell.
HAFNE COURTS. Haven courts; courts ancient-
ly held in certain ports in England. Spelman.
HAG. A division of a coppice or wood on which
timber was cut annually by the proprietor. Ersk.
Pr. 222.
HAGA. A house in a city or borough. Scott.
HAGIA. A hedge. Mon. Angl. tom. 2, p. 273.
HAGNE. A little hand-gun. St. 33 Hen. VIII. c.
6.
HAGNEBUT. A hand-gun of a larger description
than the hagne. St. 2 & 3 Edw. VI. c. 14; 4 & 5
P. & M. c. 2.
HAGUE TRIBUNAL. The Court of Arbitration
established by the Hague Peace Conference of
1899.
The object of the establishment was to facilitate the im-
mediate recourse to arbitration for the settlement of inter-
national differences by providing a permanent court, "ac-
cessible at all times, and acting, in default of agreement to
the contrary between the parties, in accordance with the
rules of procedure inserted in the present convention."
The court is given jurisdiction over all arbitration cases,
provided the parties do not agree to institute a special
tribunal. An international Bureau was likewise established
to serve as a registry for the court and to be the channel of
communications relative to the meetings of the court. The
court, although called "permanent," is really so only in the
fact that there is a permanent list of members from among
whom the arbitrators in a given case are selected. At the
Second Hague Conference of 1907, apart from minor
changes made in the court, it was provided that, of the
two arbitrators appointed by each of the parties, only one
should be a national of the appointing state. 1 Scott, 274-
318, 423-464.
HAIA. In old Ength ..h law, a park inclosed. A
hedge. Cowell.
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HALIFAX
H.AIEBOTE. In old English law, a permission or
liberty to take thorns, etc., to make or repair
hedges. Blount.
HAILL. In Scotch law, whole; the whole. "All
and haill" are common words in conveyances. 1
Bell, App.Cas. 499.
HAILWORKFOLK (i. e., holyworkfolk.) Those
who formerly held lands by the service of defend-
ing or repairing a church or monument. See, al-
so, Halywercfolk.
HAIMHALDARE. In old Scotch law, to seek res-
titution of one's own goods and gear, and bring
the same home again. Skene de Verb. Sign.
HAIMSUCKEN. In Scotch law, the crime of as-
saulting a person in his own house. Bell. See
Hamesecken.
HAIR. A capillary outgrowth from the skin. It
has been held not to include the bristles of ani-
mals. Von Stade v. Arthur, 13 Blatchf. 251, Fed.
Cas. No. 16,998.
HAKH. Truth; the true God; a just or legal
prescriptive right or claim; a perquisite claimable
under established usage by village officers. Wil-
son, Gloss. Ind.
HAKHDAR. The holder of a right. Moz. & W.
See Hakh.
HALAKAR. The realization of the revenue. Wil-
son, Gloss. Ind.; Moz. & W.
HALF. One of two equal parts into which any-
thing may be divided. Hoyne v. Schneider, 138
Kan. 545, 27 P.2d 558.
A moiety. Prentiss v. Brewer, 17 Wis. 644, 86
Am.Dec. 730.
HALF BLOOD. See Blood.
HALF BROTHER, HALF SISTER. Persons who
have the same father, but different mothers; or
the same mother, but different fathers. Wood v.
Mitcham, 92 N.Y. 379; In re Weiss' Estate, 1
Montg. Co. Law Rep'r, Pa., 210.
HALF CENT. A copper coin of the United States,
of the value of five mills, and of the weight of
ninety-four grains. The coinage of these was
discontinued in 1857.
HALF CHEST. In connection with tea, a "half
chest" is a chest containing 75 to 80 pounds, but
the weight varies according to the kind of tea.
Japan Tea Co. v. Franklin MacVeagh & Co., 142
Minn. 152, 171 N.W. 305, 307.
HALF DEFENSE. See Defense.
HALF DIME. A silver (now nickel) coin of the
United States, of the value of five cents.
HALF DOLLAR. A silver coin of the United
States, of the value of fifty cents, or one-half the
value of a dollar.
HALF EAGLE. A gold coin of the United States,
of the value of five dollars.
HALF ENDEAL OR HALFEN-DEAL. A moiety
or half of a thing.
HALF-KINEG. In Saxon law, half-king, (semi-
rex.) A title given to the aldermen of all Eng-
land. Crabb, Eng. Law, 28; Spelman.
HALF-MARK. A noble, or six shillings and eight
pence in English money.
HALF NEPHEW OR HALF NIECE. Son or
daughter of a half brother or half sister. Pierson
v. National Fire Proofing Corporation, 117 N.J.L.
600, 190 A. 73, 74.
HALF PILOTAGE. Compensation for services
which a pilot has put himself in readiness to per-
form, by labor, risk, and cost, and has offered to
perform, at half the rate he would have received
if the services had actually been performed.
Gloucester Ferry Co. v. Pennsylvania, 114 U.S.
196, 5 S.Ct. 826, 29 L.Ed. 158.
HALF-PROOF. In the civil law, proof by one
witness, or a private instrument. Hallifax, Civil
Law, b. 3, c. 9, no. 25; 3 Bl.Comm. 370. Or prima
facie proof, which yet was not sufficient to found
a sentence or decree.
HALF-SEAL. That which was formerly used in
the English chancery for sealing of commissions
to delegates, upon any appeal to the court of dele-
gates, either in ecclesiastical or marine causes.
8 Eliz. c. 3.
HALF SECTION. In American land law, the half
of a section of land according to the divisions of
the government survey, laid off either by a north-
and-south or by an east-and-west line, and contain-
ing 320 acres. See Brown v. Hardin, 21 Ark. 324.
HALF-TIMER. A child who, by the operation
of the English factory and education acts, is em-
ployed for less than the full time in a factory or
workshop, in order that he may attend some
"recognized efficient school." See factory and
workshop act, 1878, § 23; elementary education
act, 1876, § 11.
HALF-TONGUE. A jury half of one tongue or
nationality and half of another. See De Medie-
tate Lingua.
HALF YEAR. In legal computation, the period
of one hundred and eighty-two days; the odd
hours being rejected. Co. Litt. 135b; Cro. Jac.
166; Yet. 100; 1 Steph.Comm. 265; Pol. Code Cal.
1903, § 3257.
HALT. A man employed in ploughing. Wilson,
Gloss. Ind.; Moz. & W.
HALIFAX LAW. A synonym for lynch law, or
the summary (and unauthorized) trial of a person
accused of crime and the infliction of death upon
him; from the name of the parish of Halifax, in
England, where anciently this form of private
justice was practised by the free burghers in the
case of persons accused of stealing; also called
"gibbet law."
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HALIGEMOT
HALIGEMOT, or HALIMOTE. In Saxon law, the
meeting of a hall, (conventus aulce,) that is, a
lord's court; a court of a manor, or court-baron.
Spelman. So called from the hall, where the ten-
ants or freemen met, and justice was adminis-
tered. Crabb, Eng. Law, 26.
It was sometimes used to designate a convention of
citizens in their public hall and was also called folkmote
and halimote. The word halimote rather signifies the
lord's court or a court baron held in a manor in which the
differences between the tenants were determined. Cunn.
L.Dict.; Cowell.
"Furthermore, it seems to have been a common practice
for a wealthy abbey to keep a court, known as a halimote,
on each of its manors, while in addition to these manorial
courts it kept a central court, a libera curia for all its
greater freehold tenants. And we may now and again
meet with courts which are distinctly called courts of hon-
ors. The rule then was not merely this, that the lord of
a manor may hold a court for the manor; but rather this,
that a lord may hold a court for his tenants." 1 Poll. &
Mai tl. 573.
HALIMAS. In English law, the feast of All
Saints, on the 1st of November; one of the cross-
quarters of the year, was computed from Halimas
to Candlemas. Wharton.
HALIWORKFOLK. See Halywercfolk.
HALL. A building or room of considerable size,
used as a place for the meeting of public assem-
blies, conventions, courts, etc.; as, the city hall,
the town hall.
In English law, a name given to many manor-
houses because the magistrate's court was held
in the hall of his mansion; a chief mansion-house.
Cowell.
Hence, hall day, a court day.
HALL-MARK. An official stamp affixed by the
goldsmiths upon articles made of gold or silver
as an evidence of genuineness, and hence used to
signify any mark of genuineness. "The power of
free alienation is the 'hall-mark' of a fee-simple
absolute." Rand. Em. Dom. § 206.
HALLAGE. In old English law, a fee or toll due
for goods or merchandise vended in a hall. Jacob;
6 Co. 62.
A toll due to the lord of a fair or market, for
such commodities as were vended in the common
hall of the place. Cowell; Blount.
HALLAZCO. In Spanish law, the finding and tak-
ing possession of something which previously had
no owner, and which thus becomes the property
of the first occupant. Las Partidas, 3, 5, 28; 5, 48,
49; 5, 20, 50.
HALLE-GEMOTE. In Saxon law, haligemot (q.
V.).
HALLMOOT. See Haligemot.
HALLUCINATION. In medical jurisprudence, a
trick or deceit of the senses; a morbid error ei-
ther of the sense of sight or that of hearing, or
possibly of the other senses; a psychological state,
such as would be produced naturally by an act of
sense-perception, attributed confidently, but mis-
takenly, to something which has no objective exis-
tence; as, when the patient imagines that he sees
an object when there is none, or hears a voice or
other sound when nothing strikes his ear. See
Staples v. Wellington, 58 Me. 459; McNett v.
Cooper, C.C.Mich., 13 F. 590; People v. Krist, 168
N.Y. 19, 60 N.E. 1057.
An error, a blunder, a mistake, a fallacy; and
when used in describing the condition of a person,
does not necessarily carry an imputation of in-
sanity. Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24
A. 253.
The perception by any of the senses of an object which
has no existence. The conscious recognition of a sensation
of sight, hearing, feeling, taste, or smell which is not due
to any impulse received by the perceptive apparatus from
without, but arises within the perceptive apparatus itself.
A false perception in contradistinction to a delusion or
false belief. Wood, Am. Text-Book of Med.
Hallucinations are tricks of the senses, differing from de-
lusions in that hallucinations pass away while delusions
remain. Bensberg v. Washington University, 251 Mo. 641,
158 S.W. 330, 333.
HALMOTE. See Haligemot.
HALYMOTE. A holy or ecclesiastical court.
A court held in London before the lord mayor
and sheriffs, for regulating the bakers.
It was anciently held on Sunday next before St.
Thomas' day, and therefore called the "holymote,"
or holy court. Cowell.
HALYWERCFOLK. Sax. In old English law,
tenants who held land by the service of repairing
or defending a church or monument, whereby
they were exempted from feudal and military
services. Especially in the county of Durham,
those who held by service of defending the corpse
of St. Cuthbert. Jacob, Law Dict.
HAM. A place of dwelling; a homeclose; a little
narrow - meadow. Blount. A house or little vil-
lage. Cowell.
HAMA. In old English law, a hook; an engine
with which a house on fire is pulled down. Yel.
60.
A piece of land.
HAMBLING, or HAMELING. In forest law, the
hoxing or hock-sinewing of dogs; an old mode of
laming or disabling dogs. Termes de la Ley. Ex-
peditation (q. v.).
HAMEL, HAMELETA, or HAMLETA. A hamlet.
HAMESECKEN. In Scotch law, the violent enter-
ing into a man's house without license or against
the peace, and the seeking and assaulting him
there. Skene de Verb. Sign.; 2 Forb. Inst. 139.
The crime of housebreaking or burglary. 4 Bl.
Comm. 223. Spelled, also, "hamesucken."
The common genus of offences that comes under the
name of hamesucken is that which is usually called house-
breaking; which sometimes comes under the common
appellation of burglary, whether committed in the day or
night to the intent to commit felony; so that house-break-
ing of this kind is of two natures. 1 Hale, P1.Cr. 547;
Com. v. Hope, 22 Pick., Mass., 4.
See also, Hamsocne.
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IIANDSALE
HAMFARE. (Sax. From ham, a house.) In
Saxon law, an assault made in a house; a breach
of the peace in a private house. Cowell. This
word by some is said to signify the freedom of a
man's house. Holthouse. See, also, Hamsocne.
HAMLET. A small village; a part or member
of a vill. It is the diminutive of "ham," a village.
Cowell. See Rex v. Morris, 4 Term, 552.
A "village" or "hamlet" in a rural community may be no
more than a store, a school, a church, and two or three
residences. Rantoul Rural High School Dist. No. 2, Frank-
lin County, v. Davis, 99 Kan. 185, 160 P. 1008, 1009.
HAMMA. A close joining to a house; a croft;
a little meadow. Cowell.
HAMMER. Metaphorically, a forced sale or sale
at public auction. "To bring to the hammer," to
put up for sale at auction. "Sold under the ham-
mer," sold by an officer of the law or by an auc-
tioneer.
HAMSOCNE. In Saxon law, the word is various-
ly spelled hamsoca, hamsocna, haimsuken, hame-
saken, hamsocn. The right of security and priv-
acy in a man's house. Du Cange. The breach of
this privilege by a forcible entry of a house is
breach of the peace. Anc. Laws & Inst. of Eng.
Gloss.; Du Cange; Bracton, lib. 3, tr. 2, c. 2, § 3.
The right to entertain jurisdiction of the offence.
Spelman; Du Cange. Immunity from punishment
for such offence. Du Cange; Fleta, lib. 1, c. 47, §
18. An insult offered in one's own house (insultus
factus in domo). Brompton, p. 957; Du Cange.
Among the Anglo-Saxons it was breaking into
a house; perhaps the time of the day was not an
element. See 3 Holdsw. Hist. E. L. 293; 2 Poll.
& Maitl. 492. See, also, Hamesecken.
HANAPER. A hamper or basket in which were
kept the writs of the court of chancery relating
to the business of a subject, and their returns; 5
& 6 Vict. c. 113; 10 Ric. II. c. 1; 3 Bl.Comm. 49;
equivalent to the Roman fiscus. According to
others, the fees accruing on writs, etc., were there
kept. Spelman; Du Cange.
HANAPER-OFFICE. An office belonging to the
common-law jurisdiction of the court of chancery,
so called because all writs relating to the business
of a subject, and their returns, were formerly kept
in a hamper, in hanaperio. 5 & 6 Vict. c. 103.
See Yates v. People, 6 Johns., N.Y., 363.
HAND. A measure of length equal to four inches,
used in measuring the height of horses.
A person's signature. Salazar v. Taylor, 18 Colo.
538, 33 P. 369; 10 Mod. 103.
In anatomical usage the hand, or manus, in-
cludes the phalanges, or fingers and thumb; the
metacarpus, or hand proper; and the carpus, or
wrist; but in popular usage the wrist is often ex-
cluded. Champlin Refining Co. v. State Industrial
Commission, 153 Okl. 45, 4 P.2d 751, 752. The
arm up to but not including the elbow. Gondak v.
Wilson Gas Coal Co., 148 Pa.Super. 566, 25 A.2d
854, 855.
In the plural, the term may be synonymous with
"possession"; as, the "hands" of an executor,
garnishee, etc. Brownwood Gas Co. v. Belser, Tex.
Civ.App., 257 S.W. 605, 607.
In old English law, an oath. For the meaning
of the terms "strong hand" and "clean hands,"
see those titles.
HAND DOWN. To announce or file an opinion
in a cause. Used originally and properly of the
opinions of appellate courts transmitted to the
court below; but in later usage the term is em-
ployed more generally with reference to any de-
cision by a court upon a case or point reserved
for consideration.
HAND-FASTING. In old English law, betroth-
ment.
HAND-GRITH. Peace or protection given by the
king with his own hand; used in the laws of
Henry I. Tomlin; Cowell; Moz. & W.; Stat,
Hen. I. c. 13.
HAND MONEY. Money paid in hand to bind a
bargain; earnest money, when it is in cash.
HANDBILL. A written or printed notice dis-
played to inform those concerned of something
to be done. Kelly v. Board of Trustees of Evarts
Common Graded School Dist., 162 Ky. 612, 172
S.W. 1047, 1048; People v. McLaughlin, 33 Misc.
691, 68 N.Y.S. 1108.
HANDBOROW. In Saxon law, a hand pledge; a
name given to the nine pledges in a decennary or
friborg; the tenth or chief, being called "head-
borow," (q. v.). So called as being an inferior
pledge to the chief. Spelman.
HANDCUFFS. See Fetters,
HANDLE. To control, direct, to deal with, to act
upon, to perform some function with regard to or
to have passed through one's hands, to buy and
sell, or to deal or trade in. State ex rel. Bell v.
Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d
764, 769. To manage or •operate. The term in-
cludes the act of placing a truck on a depot plat-
form for the purpose of loading. Wells Fargo
& Co. v. Lowery, Tex.Civ.App., 197 S.W. 605, 608.
HANDHABEND, or HAND-HABENDE. In Sax-
on law, one having a thing in his hand; that is, a
thief found having the stolen goods in his posses-
sion. Jurisdiction to try such thief. See Laws of
Hen. I. c. 59; Laws of Athelstane § 6;' Fleta, lib.
1, c. 38, § 1; Britton p. 72; Du Cange, Handha-
benda. See, also, Backberend.
HANDSALE. Anciently, among all the northern
nations, shaking of hands was held necessary to
bind a bargain,—a custom still retained in verbal
contracts. A sale thus made was called "hand-
sale," (venditio per mutuam manum complexion-
em.) In process of time the same word was used
to signify the price or earnest which was given im-
mediately after the shaking of hands, or instead
thereof. 2 Bl.Comm. 448.
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HANDSEL
HANDSEL. Handsale, or earnest money.
HANDWRITING. The chirography of a person;
the cast or form of writing peculiar to a person, in-
cluding the size, shape, and style of letters, tricks
of penmanship, and whatever gives individuality
to his writing, distinguishing it from that of other
persons. In re Hyland's Will, 1 Gib. 41, 58 St.R.
798, 27 N.Y.S. 961, 963.
Anything written by hand; an instrument writ-
ten by the hand of a person, or a specimen of his
writing.
Handwriting, considered under the law of evidence,
includes not only the ordinary writing of one able to write,
but also writing done in a disguised hand, or in cipher, and
a mark made by one able or unable to write. 9 Amer. &
Eng.Enc.Law, 264. See Com. v. Webster, 5 Cush., Mass.,
301, 52 Am. Dec. 711.
Typewriting is not "handwriting" within a statute allow-
ing experts' opinions as to who executed a writing. Wolf
v. Gall, 176 Cal. 787, 169 P. 1017, 1019.
HANDY MAN. A man of all work. Sovereign
Camp, W. 0. W., v. Craft, 208 Ala. 467, 94 So. 831,
834.
HANG. In old practice, to remain undetermined.
"It has hung long enough; it is time it were made
an end of." Holt, C. J., 1 Show. 77.
Thus, the present participle means pending; dur-
ing the pendency. "If the tenant alien, hanging
the prcecipe." Co.Litt. 266a. Remaining unde-
termined. 1 Show. 77.
HANGED, DRAWN AND QUARTERED. A meth-
od of executing traitors in England, said to have
been introduced in 1241. The traitor was carried
on a sled, or hurdle to the gallows (formerly
dragged there tied to the tail of a horse) ; hanged
till half dead and then cut down; his entrails cut
out and burnt; his head cut off and his body to be
divided into quarters, which, with his head, were
hung in some public place. In practice the execu-
tioner usually cut out the heart and held it up to
view. See Andrews, Old Time Punishments; 1
Eng.Rep. 87.
HANGING. In criminal law, suspension by the
neck; the mode of capital punishment used in
England from time. immemorial, and generally
adopted in the United States. 4 Bl.Comm. 403.
HANGING IN CHAINS. In atrocious cases it was
at one time usual, in England, for the court to
direct a murderer, after execution, to be hanged
upon a gibbet in chains near the place where the
murder was committed, a practice quite contrary
to the Mosaic law. (Deut. xxi. 23.) Its legality
was declared by acts in 1751 and 1828. Abolished
by 4 & 5 Wm. IV, c. 26. Wharton.
HANGING PAPER. Ordinarily, paper for hang-
ing or hangings, or paper which hangs. Within
the meaning of the Tariff Act (19 U.S.C.A. § 121),
paper used for covering walls, ceiling, etc., wheth-
er such paper is tinted or decorative or not ,—a.
more inclusive term than "paper hangings," mean-
ing tinted or decorative paper used for the pur-
pose mentioned. Downing & Co. v. U. S., 12 Ct.
Cust.App. 451, 454.
Merchandise known as grass cloth, made by pasting a
fabric of weed bark sewed with cotton thread on a paper
backing and dyeing the surface, imported to be used as
wall hangings, is dutiable as dyed hanging paper. Down-
ing & Co. v. U. S., 12 Ct.Cust.App. 451.
HANGMAN. An executioner. One who executes
condemned criminals by hanging.
HANGWITE. In Saxon law, a fine for illegal
hanging of a thief, or for allowing him to escape.
Immunity from such fine. Du Cange.
HANIG. Some customary labor to be performed.
Holthouse.
HANSE. An alliance or confederation among mer-
chants or cities, for the good ordering and pro-
tection of the commerce of its members. An im-
position upon merchandise. Du Cange.
HANSE TOWNS. The collective name of certain
German cities, including Lubeck, Hamburg, and
Bremen, which formed an alliance for the mutual
protection and furtherance of their commercial
interests, in the twelfth century. The powerful
confederacy thus formed was called the "Hanseatic
League." The league framed and promulgated
a code of maritime law, which was known as the
"Laws of the Hanse Towns," or Jus Hanseaticum
Maritimum.
The years 1356 to 1377 marked the zenith
of the league's power. The league gradually
declined till, in 1669, the last general assem-
bly was held and Lubeck, Hamburg and Bremen
were left alone to preserve the name and small
inheritance of the "Hansa."
HANSE TOWNS, LAWS OF THE. The maritime
ordinances of the Hanseatic towns, first published
in German at Lubeck, in 1597, and in May, 1614,
revised and enlarged.
HANSEATIC. Pertaining to a hance or commer-
cial alliance; but, generally, the union of the
Hanse towns is the one referred to, as in the ex-
pression the "Hanseatic League."
HANSGRAVE. The chief of a company; the head
man of a corporation.
HAOLE. White foreign. Refers to rank rather
than to race. International Longshoremen's &
Warehousemen's Union v. Ackerman, D.C.Hawaii,
82 F.Supp. 65, 76.
HANTELOD, or HANTELODE. In old European
law, an arrest, or attachment. Spelman; Du
Cange; Toml.; Holthouse.
HAP. To catch. Thus, "hap the rent," "hap the
deed-poll," were formerly used.
HAPPINESS. Comfort, consolation, contentment,
ease, enjoyment, pleasure, satisfaction. National
Surety Co. v. Jarrett, 121 S.E. 291, 295, 95 W.Va,
420.
The constitutional right of men to pursue their "happi-
ness" means the right to pursue any lawful business or
vocation, in any manner not inconsistent with the equal
rights of others, which may increase their prosperity, or-
develop their faculties, so as to give to them their highest
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HARMONIC
enjoyment.. Butchers' Union Co. v. Crescent City Co., 111
U.S. 757, 4 S.Ct. 652, 28 L.Ed. 585; 1 Bl.Comm. 41. Eng-
lish v. English, 32 N.J.Eq. 750.
HAQUE. In old statutes, a hand-gun, about three-
quarters of a yard long.
HARACIUM. In old English law, a race of horses
and mares kept for breed; a stud. Spelman.
HARBINGER. In England, an officer of the royal
household.
HARBOR, n. A haven, or a space of deep water
so sheltered by the adjacent land as to afford a
safe anchorage for ships. Rowe v. Smith, 51 Conn.
271, 50 Am.Rep. 16; The Aurania, D.C.N.Y., 29 F.
103; People v. Kirsch, 67 Mich. 539, 35 N.W. 157;
The Cuzco, D.C.Wash., 225 F. 169, 176. A port or
haven for ships; a sheltered place, natural or arti-
ficial, on the coast of a sea, lake, or other body of
water. State v. Savidge, 95 Wash. 240, 163 P.
738, 740.
"Port" is a word of larger import than "harbor," since
it implies the presence of wharves, or at any rate the means
and opportunity of receiving and discharging cargo. See
7 M. & G. 870; Martin v. Hilton, 9 Metc., Mass., 371; 2
B. & Ald. 460. Thus, we have the "said harbor, basin,
and docks of the port of Hull." 2 B. & Ald. 60. But they
are generally used as synonymous. Webster, Diet.
HARBOR, v. To afford lodging to, to shelter, or
to give a refuge to. Hancock v. Finch, 126 Conn.
121, 9 A.2d 811. To clandestinely shelter, succor,
and protect improperly admitted aliens. Susnjar
v. U. S., C.C.A.Ohio, 27 F.2d 223, 224. To receive
clandestinely and without lawful authority a per-
son for the purpose of so concealing him that an-
other having a right to the lawful custody of such
person shall be deprived of the same. Jones v.
Van Zandt, 5 How. 215, 227, 12 L.Ed. 122. Or, in a
less technical sense, it is the reception of persons
improperly. Poll.Torts 275; Wood v. Gale, 10
N.H. 247, 34 Am.Dec. 150; Eells v. People, 4 Scam.,
Ill., 498. It may be aptly used to describe the fur-
nishing of shelter, lodging, or food clandestinely or
with concealment, and under certain circum-
stances, may be equally applicable to those acts
divested of any accompanying secrecy. U. S. v.
Grant, C.C.Or., 55 F. 415.
As used in U. S. Criminal Code, § 42, 18 U.S.C.A. § 1381,
the word "harbor" means to lodge, to care for, after
secreting the deserter. Firpo v. U. S., C.C.A.N.Y., 261 F.
850, 853.
To "harbor" a dog involves the idea of protection, and
of treating it as living at one's house, and undertaking to
control its actions.  Hagenau v. Millard, 182 Wis. 544, 195
N.W. 718, 719. See, also, Markwood v. McBroom, 110
Wash. 208, 188 P. 521, 522.
HARBOR AUTHORITY. In England a harbor au-
thority is a body of persons, corporate or unincor-
porate, being proprietors of, or intrusted with the
duty of constructing, improving, managing, or
lighting, any harbor. St. 24 & 25 Viet. c. 47.
HARBOR LINE. A line marking the boundary of
a certain part of a public water which is reserved
for a harbor. Engs v. Peckham, 11 R.I. 224. The
line beyond which wharves and other structures
cannot be extended. Garrison v. Greenleaf John-
son Lumber Co., C.C.A.Va., 215 F. 576, 579.
HARD. As applied to liquors, rough; acid; sour.
In re Stiller, 161 N.Y.S. 594, 597, 175 App.Div. 211.
HARD CASES. A , phrase used to indicate deci-
sions which, to meet a case of hardship to a party,
are not entirely consonant with the true principle
of the law. It is said of such: Hard cases make
bad law. Hard cases must not make bad equity
any more than bad law; Moore v. Pierson, 6
Iowa 279, 71 Am.Dec. 409. Hard cases are the
quicksands of the law. Metropolitan Nat. Bank of
Kansas City, Mo. v. Campbell Commission Co.,
C.C.Mo., 77 F. 705.
HARD CIDER. Cider which has lost its sweet-
ness from fermentation—fermented cider possess-
ing a stimulating and intoxicating effect, due to its
acquisition of a substantial and potent alcoholic
content, through fermentation. People v. Em-
mons, 178 Mich. 126, 144 N.W. 479, 481, Ann.Cas.
1915D, 425.
HARD LABOR. A punishment,. additional to mere
imprisonment, sometimes imposed upon convicts
sentenced to a penitentiary. But the labor is not,
as a rule, any harder than ordinary mechanical
labor. Thompson v. State, 19 Ala.App. 328, 97 So.
258, 260. Compulsory labor. In re Danton, 108
Kan. 451, 195 P. 981, 983.
HARD MONEY. Lawful coined money. Henry v.
Bank of Salina, 5 Hill (N.Y.) 523, 536.
HARD OF HEARING. A relative term, applied
to one that cannot hear as well as one possessing
normal faculties of hearing or does not hear as
well as the average person. Sharps v. Jones, 100
W.Va. 662, 131 S.E. 463, 464.
HARDHEIDIS. In Old Scotch law, lions; coins
formerly of the value of three half-pence. 1 Pitc.
Crim.Tr. pt. 1, p. 64, note.
HARDPAN. Any earth not popularly recognized
as rock through which it is hard to dig or to make
excavation of any sort. It may be: (1) Semiindu-
rated clay, with or without admixture of stony
matter; (2) cemented gravel; or (3) clay, with
or without admixture of stony matter, which is
very tough because of its strong cohesion. Baker
v. Multnomah County, 118 Or. 143, 246 P. 352, 355.
HARDSHIP. The severity with which a proposed
construction of the law would bear upon a partic-
ular case, founding, sometimes, an argument
against such construction, which is otherwise
termed the "argument ab inconvenienti." See
Hard Cases.
HARIOT. The same as heriot (q. v.)  Cowell;
Termes de la Ley. Sometimes spelled Harriott.
Wms. Seis. 203.
HARMFUL or HARMLESS ERROR. See Error.
HARMONIC PLANE. The zero adopted by the
United States Coast and Geodetic Survey of the
Department of Commerce upon which its tidal
tables, charts, and maps are based. It is an arbi-
trary plane, and, in Puget Sound, is the lowest
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HARMONIZE
plane of the tide recognized by that department.
State v. Scott, 89 Wash. 63, 154 P. 165, 168.
HARMONIZE. Though not strictly synonymous
with the word "reconcile," it is not improperly used
by a court in instructing the jury that it is their
duty to "harmonize" conflicting evidence if pos-
sible. Holdridge v. Lee, 3 S.D. 134, 52 N.W. 265.
HARMONY. The phrase "in harmony with" is
synonymous with "in agreement, conformity, or
accordance with." Brown Real Estate Co. v. Lan-
caster County, 110 Neb. 665, 194 N.W. 897, 898.
HARNASCA. In old European law, the defensive
armor of a man; harness. 'Spelman.
HARNESS. The defensive armor of a soldier or
knight. All warlike instruments. In modern poet-
ical sense, a suit of armor. Sometimes, the trap-
pings of a war-horse.
The tackle or furniture of a ship.
HARO, HARRON. Fr. In Norman and early
English law, an outcry, or hue and cry after felons
and malefactors. Cowell. The original of the
clamour de haro comes from the Normans. Moz.
& W.
HARRIOTT. The old form of "heriot," (q. v.)
Williams, Seis. 203.
HART. A stag or male deer of the forest, gen-
erally over five years old.
HARTER ACT. A name commonly applied to the
act of congress of February 13, 1893, c. 105, provid-
ing; (§ 1) that agreements in a bill of lading re-
lieving the owner, etc., of a vessel sailing between
the United States and foreign ports, from liability
for negligence or fault in proper loading, storage,
custody, care, or delivery of merchandise, are void
(46 U.S.C.A. § 190) ; (§ 2) that no bill of lading
shall contain any agreement whereby the obliga-
tions of the owner to exercise due diligence, prop-
erly equip, man, provision and outfit a vessel and
make it seaworthy, and whereby the obligations of
the master, etc., carefully to handle, store, care
for and deliver the cargo, are in any way lessened,
weakened or avoided (46 U.S.C.A. § 191) ; ( § 3)
that if the owner shall exercise due diligence to
make such vessel in all respects seaworthy and
properly manned, equipped and supplied, neither
the xessel nor her owners, etc., shall be liable for
loss resulting from faults or errors in navigation
or management, nor for losses arising from dan-
gers of the sea, acts of God, or public enemies, or
the inherent defect of the thing carried, or insuf-
ficiency of package, or seizure under legal proc-
ess, or any act or omission of the shipper of the
goods, or from saving or attempting to save life
at sea, or deviation in rendering such service (46
U.S.C.A. § 192).
HARVESTING. The gathering of crops of any
kind. Cook v. Massey, 38 Idaho 264, 220 P. 1088,
1091.
HARVESTING EXPENSES. Includes expenses
for repairs of machinery used in harvesting the
crop, the rent of live stock, implements, and the
cost of labor. Betts v. Orton, 34 Cal.App. 397, 167
P. 1147, 1148.
HASP AND STAPLE. In old Scotch law, the form
of entering an heir in a subject situated within a
royal borough. It consisted of the heir's taking
hold of the hasp and staple of the door (which was
the symbol of possession,) with other formalities.
Bell; Burrill. A mode of entry in Scotland by
which a bailee declared a person heir on evidence
brought before himself, at the same time deliver-
ing the property over to him by the hasp and sta-
ple of the door. Bell; Ersk.Pr. 433.
HASPA. In old English law, the hasp of a door;
by which livery of seisin might anciently be made,
where there was a house on the premises.
HASTA. Lat. A spear. In the Roman law, a
spear was the sign of a public sale of goods or
sale by auction. Hence the phrase "hastce sub-
jicere" (to put under the spear) meant to put up
at auction. Calvin.
In feudal law, a spear, the symbol used in mak-
ing investiture of a fief. Feud. lib. 2, tit. 2.
HAT MONEY. In maritime law, primage; a small
duty paid to the captain and mariners of a ship.
HATCH. A nautical term, generally signifying
an opening in the deck of a ship. State v. Arm-
strong, 97 Neb. 343, 149 N.W. 786, 788, Ann.Cas.
1917A, 554.
HATCHWAY. Specifically, an opening in the
deck of a boat; hence any similar opening, as in
a floor or sidewalk; a trapdoor. Kelly v. Theo.
Hamm Brewing Co., 140 Minn. 371, 168 N.W. 131,
132. The term is inapplicable to the head of a
stairway; Peterson v. Shapiro, 171 Minn. 408, 214
N.W. 269, 270; or to basement ways; State v.
Armstrong, 97 Neb. 343, 149 N.W. 786, 788, Ann.
Cas.1917A, 554.
HAUBER. 0. Fr. A high lord; a great baron.
Spelman.
HAUBERK. A long coat or tunic of ring or chain
mail. Sometimes applied loosely to a habergeon
(q. v.).
HAUGH, HOUGH, or HOWGH. Low-lying rich
lands, lands which are occasionally overflowed.
Encyc.Dict. A green plot in a valley.
HAUL. To pull or draw with force; to drag; to
transport by hauling. Denius v. North Dakota
Workmen's Compensation Bureau, 68 N.D. 506, 281
N.W. 361, 363.
HAULA. See Aula.
HAULAGE ROYALTY. Damages at a certain
amount per ton for coal from adjacent lands
hauled through subterranean passageways of les-
sor's land. Quality Excelsior Coal Co. v. Reeves,
206 Ark. 713, 177 S.W.2d 728, 732.
HAULM. See Helm.
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HAZAR-ZAMIN
HAUR. In old English law, hatred. Used in the
laws of William the Conqueror. Toml.; Leg.Wm.
I. c. 16; Blount.
HAUSTUS. Lat. In the civil law, a species of
servitude, consisting in the right to draw water
from another's well or spring, in which the iter,
(right of way to the well or spring,) so far as it
is necessary, is tacitly included. Dig. 8, 3, 1;
Mackeld.Rom.Law, § 318; Fleta, 1. 4, c. 27, § 9.
HAUT CHEMIN. L. Fr. Highway. Yearb. M.
4 Hen. VI. 4.
HAUT ESTRET. L. Fr. High street; highway.
Yearb. P. 11 Hen. VI. 2.
HAUTHONER. In old English law, a man armed
with a coat of mail. Jacob.
HAVE. Lat. A form of the salutatory expression
"Ave," used in the titles of some of the constitu-
tions of the Theodosian and Justinian Codes. See
Cod. 7, 62, 9; Id. 9, 2, 11.
HAVE. Imports ownership, and has been defined
to mean "to keep," "to hold in possession," "to
own." Busteed v. Cambridge Sa y . Bank, 306 Mass.
9, 26 N.E.2d 983, 986. To bear (children). Nick-
erson v. Hoover, 70 Ind.App. 343, 115 N.E. 588, 593.
To possess corporally. Walker v. Trollinger, 192
N.C. 744, 135 S.E. 871, 873.
"No one, at common law, was said to have or to be in
possession of land, unless it were conveyed to him by the
livery of seisin, which gave him the corporal investiture
and bodily occupation thereof." Bl.Law Tracts, 113.
HAVE AND HOLD. A common phrase in con-
veyancing, derived from the habendum et tenen-
dum of the old common law. See Habendum et
Tenendum.
HAVEN. A place of a large receipt and safe rid-
ing of ships, so situate and secured by the land
circumjacent that the vessels thereby ride and
anchor safely, and are protected by the adjacent
land from dangerous or violent winds; as Milford
Haven, Plymouth Haven, and the like. Hale de
Jure Mar. par. 2, c. 2; The Cuzco, D.C.Wash., 225
F. 169, 176; 15 East 304, 305. Lowndes v. Board
of Trustees, 14 S.Ct. 758, 153 U.S. 1, 38 L.Ed. 615;
De Lovio v. Boit, 7 Fed.Cas. 429.
HAW. A small parcel of land so called in Kent;
houses. Co.Litt. 5; Cowell.
HAWBERK, or HAWBERT. A coat or shirt of
mail; hence, derivatively (in feudal law) one who
held a fief on the duty or service of providing him-
self with such armor and standing ready, thus
equipped, for military service when called on.
Wharton. See Fief d'Haubert.
HAWGH, HOWGH. In old English law, a valley.
Co.Litt. 5b. See Haugh.
HAWKER. An itinerant or traveling trader, who
carries goods about, in order to sell them, and who
actually sells them to purchasers, in contradis-
tinction to a trader who has goods for sale and
sells them in a fixed place of business. Common-
Black's Law Dictionary Revised 4th Ed.-54
wealth v. Bergeron, 296 Mass. 60, 5 N.E.2d 31, 32.
A peddler who uses beast of burden to carry wares
and who cries out merits of wares in street. City
of Washington v. Reed, 229 Mo.App. 1195, 70 S.W.
2d 121, 122. See Hawking.
It is perhaps not essential to the idea, but is generally
understood from the word, that a hawker is to be one who
not only carries goods for sale, but seeks for purchasers,
either by outcry, which some lexicographers conceive as
intimated by the derivation of the word, or by attracting
notice and attention to them, as goods for sale, by an
actual exhibition or exposure of them, by placards or
labels, or by a conventional signal, like the sound of a
horn for the sale of fish. Graffty v. Rushville, 107 Ind. 502,
8 N.E. 609, 57 Am. Rep. 128.
One who goes about a village carrying samples and tak-
ing orders for a non-resident firm is not a hawker or ped-
dler. Village of Cerro Gordo v. Rawlings, 135 Ill. 36, 25
N.E. 1006.
HAWKING. The act of offering goods for sale on
the streets by outcry or by attracting the attention
of persons by exposing goods in a public place, or
by placards, labels, or signals. Pastorino v. City
of Detroit, 182 Mich. 5, 148 N.W. 231, 235, Ann.
Cas.1916D, 768.
The business of peddling is distinct from that of a manu-
facturer selling his own products, and those who raise or
produce what they sell, such as farmers and butchers, are
not peddlers. Ex parte Hogg, 70 Tex.Cr.R. 161, 156 S.W.
931, 932. The occupation of a dairyman, going about deliv-
ering the milk from his farm to his regular customers
according to their previous orders, is not, within the ordi-
nary meaning of the term, peddling or hawking. State ex
rel. Brittain v. Hayes, 143 La. 39, 78 So. 143, 144.
HAY. Commonly means grasses or seeds which
have been harvested. Sandall v. Hoskins, 104 Utah
50, 137 P.2d 819, 823. In statute, term does not
apply to the stalks, stems, and other residue, left
after bean plants have been threshed and the bean
kernel or seeds -removed. State v. Choate, 41 Ida-
ho 251, 238 P. 538, 540.
HAY IN STACK. A stack of hay, grain, straw,
or the like is a large quantity thereof collected
and usually built up in layers in conical, oblong,
or rectangular form to a point or ridge at the top
so that it will be preserved against the inclemen-
cies of the weather. A policy covering "hay in
stack" does not cover hay in the mow of a barn.
Murphy v. Continental Ins. Co., 178 Iowa 375, 157
N.W. 855, 856, L.R.A.1917B, 934.
HAY-BOTE. Another name for "hedge-bote," be-
ing one of the estovers allowed to a tenant for life
or years, namely, material for repairing the nec-
essary hedges or fences of his grounds, or for
making necessary farming utensils. 2 Bl.Comm.
35; 1 Washb.Real Prop. 129.
HAYWARD. In old English law, an officer ap-
pointed in the lord's court to keep a common herd
of cattle of a town; so called because he was to
see that they did not break or injure the hedges of
inclosed grounds. His duty was also to impound
trespassing cattle, and to guard against pound-
bredches. Kitch. 46; Cowell. Adams v. Nichols,
1 Aikens (Vt.) 319.
HAZAR-ZAMIN. A bail or surety for the person-
al attendance of another. Moz. & W.
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HAZARD
HAZARD. In old English law, an unlawful game
at dice, those who play at it being called "hazard-
ors." Jacob.
In modern law, any game of chance or wagering.
Cheek v. Corn., 100 Ky. 1, 37 S.W. 152; Somers v.
State, 5 Sneed (Tenn.) 438.
A risk or peril, assumed or involved, whether in
connection with contract relation, personal rela-
tion, or golf or gambling. State v. Hagan, 44 N.D.
306, 175 N.W. 372, 377. A danger or risk lurking
in a situation which by change or fortuity devel-
ops into an active agency of harm. Hough v. Con-
tributory Retirement Appeal Board, 309 Mass. 534,
36 N.E.2d 415, 417, 418. Exposure to the chance of
loss or injury. Caminetti v. Guaranty Union Life
Ins. Co., 52 Cal.App.2d 330, 126 P.2d 159, 163.
A stationary unlighted freight train upon a railroad
crossing at night. Plante v. Canadian Nat. Rys., 138 Me.
215, 23 A.2d 814, 817. An accident incidental to or result of
an act done while in the course of one's employment. Tip-
ple v. High Street Hotel Co., 70 Ohio App. 397, 41 N.E.2d
879, 885.
In insurance law, the risk, danger, or probabil-
ity that the event insured against may happen,
varying with the circumstances of the particular
case. See State Ins. Co. v. Taylor, 14 Colo. 499, 24
P. 333, 20 Am.St.Rep. 281.
Moral hazard. In fire insurance, the risk or
danger of the destruction of the insured property
by fire, as measured by the character and interest
of the insured owner, his habits as a prudent and
careful man or the reverse, his known integrity
or his bad reputation, and the amount of loss he
would suffer by the destruction of the property
or the gain he would make by suffering it , to burn,
and collecting the insurance. Davenport v. Fire-
men's Ins. Co. of Newark, N. J., 47 S.D. 426, 199
N.W. 203, 205.
HAZARDOR. In old English law, one who played
at a hazard, i. e., an unlawful game of dice. Ja-
cob.
HAZARDOUS. Exposed to or involving danger;
perilous; risky.
Involving risk of loss. Caminetti v. Guaranty
Union Life Ins. Co., 52 Cal.App.2d 330, 126 P.2d
159, 162, 163.
The terms "hazardous," "extra-hazardous," "specially
hazardous," and "not hazardous" are well-understood
technical terms in the business of insurance, having dis-
tinct and separate meanings. Although what goods are
included in each designation may not be so known as to
dispense with actual proof, the terms themselves are dis-
tinct and known to be- so. Russell v. Insurance Co., 50
Minn. 409, 52 N.W. 906.
HAZARDOUS CONTRACT. See Contract.
HAZARDOUS INSURANCE. Insurance effected
on property which is in unusual or peculiar dan-
ger of destruction by fire, or on the life of a man
whose occupation exposes him to special or un-
usual perils.
HAZARDOUS NEGLIGENCE. See Negligence.
HE. Properly a pronoun of the masculine gender,
but commonly construed in statutes to include
both sexes as well as corporations. Dickson v.
Strickland, 114 Tex. 176, 265 &W. 1012, 1021; City
of Janesville v. Tweedell, 217 Wis. 395, 258 N.W.
437. May be read "they". Buono v. Yankee Maid
Dress Corporation, C.C.A.N.Y., 77 F.2d 274, 278.
HE WHO COMES INTO A COURT OF EQUITY
MUST COME WITH CLEAN HANDS.
HE WHO HAS COMMITTED INIQUITY SHALL
NOT HAVE EQUITY. Francis, Max.
HE WHO IS SILENT WHEN CONSCIENCE RE-
QUIRES HIM TO SPEAK SHALL BE DEBAR-
RED FROM SPEAKING WHEN CONSCIENCE
REQUIRES HIM TO BE SILENT.
HE WHO SEEKS EQUITY MUST DO EQUITY.
This expression means that the party asking the
aid of an equity court must stand in a conscien-
tious relation toward his adversary and the trans-
action from which his claim arises must be fair
and just and the relief must not be harsh and op-
pressive upon defendant. Jacklich v. Baer, 57 Cal.
App.2d 684, 135 P.2d 179, 184. And that court will
not confer equitable relief on party seeking its aid,
unless he has acknowledged and conceded or will
admit and provide for all equitable rights, claims,
and demands justly belonging to adverse party
and growing out of or necessarily involved in sub-
ject matter of controversy. Bates v. Dana, 345
Mo. 311, 133 S.W.2d 326, 329. It is in pursuance of
this maxim that equity enforces the right of the
wife's equity to a settlement. Snell, Eq. (5th Ed.)
374. Drake v. Sherman, 67 Ill.App. 440.
HE WHO WILL HAVE EQUITY DONE TO HIM
MUST DO EQUITY TO THE SAME PERSON. 4
Bouv.Inst. 3723.
HEAD. Chief; leading; principal; the upper
part or principal source of a stream.
The principal person or chief of any organiza-
tion, corporation, or firm.
HEAD MONEY. A sum of money reckoned at a
fixed amount for each head (person) in a desig-
nated class.
Particularly (1) a capitation or poll tax. (2) A bounty
offered by the laws of the United States for each person on
board an enemy's ship or vessel, at the commencement of a
naval engagement, which shall be sunk or destroyed by a
ship or vessel of the United States of equal or inferior
force, the same to be divided among the officers and crew
in the same manner as prize money. In re Farragut, 7 D.C.
97. A similar reward is offered by the British statutes. (3)
The tax or duty imposed by act of congress of Aug. 3, 1882,
on owners of steamships and sailing vessels for every immi-
grant brought into the United States. Head Money Cases,
112 U.S. 580, 5 Sup.Ct. 247, 28 L.Ed. 798. (4) A bounty or
reward paid to one who pursues and kills a bandit or out-
law and produces his head as evidence; the offer of such a
reward being popularly called "putting a price on his
head."
HEAD OF A FAMILY. An individual who actu-
ally supports and maintains in one household one
or more individuals who are closely connected
with him by blood relationship, relationship by
marriage, or by adoption, and whose right to exer-
cise family control and provide for the dependent
individuals is based upon some moral or legal ob-
ligation. Miller v. Glenn, D.C.Ky., 47 F.Supp. 794,
796, 797.
850

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HEALSFANG
A term used in homestead and exemption laws to desig-
nate a person who maintains a family; a householder. Not
necessarily a husband or father, but any person who has
charge of, supervises, and manages the affairs of the house-
hold or the collective body of persons residing together and
constituting the family. Armstrong-McClenahan Co. v.
Rhoads, 180 Iowa, 710, 163 N.W. 356, 357; The term may
thus include an abandoned wife maintaining minor chil-
dren, Mennell v. Wells, 51 Mont. 141, 149 P. 954, 955; and
also a widow, Wilkey v. Wilkey, 130 Tenn. 430, 171 S.W.
78; Burrell Tp. v. Pittsburg Guardians of Poor, 62 Pa.
475, 1 Am. Rep. 441.
There must be at least two persons who live together in
relation of one family. Whidden v. Abbott, 124 Fla. 293,
168 So. 253, 254.
To be the head of a family, one must either have a
responsibility (i. e., at least a natural or moral obligation)
to support, or have parental authority over, another mem-
ber of the family. Whyte v. Grant, 142 La. 822, 77 So-. 643.
"Head of family," within exemption laws, must be under
some obligation to support other members, and the other
members must be dependent on the head. Lena v. Clinken-
beard, 172 Okl. 6, 44 P.2d 2, 4, (but see In re Taylor, D.C.,
282 F. 315, 316).
HEAD OF CREEK. This term means the source
of the longest branch, unless general reputation
has given the appellation to another. Davis v.
Bryant, 2 Bibb. (Ky.) 110.
HEAD OF DEPARTMENT. One of the members
of the president's cabinet, and not a mere bureau
head. Brooks v. United States, D.C.N.Y., 33 F.
Supp. 68, 69.
The expression "head of any department of the state
government" is one of varied and therefore of equivocal
meaning. construed in one statute as having been employed
in a narrow, restricted sense, and in another to have been
used in its general popular sense, depending on effectuation
of the legislative objective as the controlling element.
Rainey v. Malone, Tex.Civ.App., 141 S.W.2d 713, 715.
HEAD OF STREAM. The highest point on the
stream which furnishes a continuous stream of
water, not necessarily the longest fork or prong.
Uhl v. Reynolds, 64 S.W. 498, 23 Ky.Law Rep. 759;
State v. Coleman, 13 N.J.Law, 104.
HEAD OF WATER. In hydraulic engineering,
mining, etc., the effective force of a body or vol-
ume of water, expressed in terms of the vertical
distance from the level of the water in the pond,
reservoir, dam, or other source of supply, to the
point where it is to be mechanically applied, or ex-
pressed in terms of the pressure of the water per
square inch at the latter point. Shearer v. Mid-
dleton, 88 Mich. 621, 50 N.W. 737.
HEADBOROUGH. In Saxon law, the head or
chief officer of a borough; chief of the frank-
pledge tithing or decennary. This office was aft-
erwards, when the petty constableship was creat-
ed, united with that office.
HEAD-COURTS. Certain tribunals in Scotland,
abolished by 20 Geo. II. c. 50. Ersk. 1, 4, 5.
HEADERS. In mining, a "cap" is a square piece
of plank or block wedged between the top of posts
and the roof to better hold the roof, and "headers"
are longer pieces of plank supported by a prop
at each end and supporting a larger area of the
roof with fewer posts. Big Branch Coal Co. v.
Wrenchie, 160 Ky. 668, 170 S.W. 14, 16.
HEADLAND. In old English law, a narrow piece
of unplowed land left at the end of a plowed field
for the turning of the slow. Called, also, "Butt."
2 Leon. 70, case 93; 1 Litt. 13.
HEAD-NOTE. A syllabus to a reported case; a
summary of the points decided in the case, which
is placed at the head or beginning of the report.
HEAD-PENCE. An exaction of 40d. or more, col-
lected by the sheriff of Northumberland from the
people of that county twice in every seven years,
without account to the king. Abolished by 23
Hen. VI. c. 6, in 1444. Cowell.
HEADRIGHT. Under the Allotment Act (Act
Cong. June 28, 1906 [34 Stat. 5391), creating a
trust fund from all tribal funds which included
funds from sale of tribal lands, funds allowed on
claims against the United States and received from
tribal oil, gas, and mineral rights, each allottee
owned his pro rata share of the trust fund, and
this pro rata beneficial interest is commonly call-
ed a "headright." Cook v. First Nat. Bank, 145
Okl. 5, 291 P. 43, 46.
HEADRIGHT CERTIFICATE. In the laws of the
republic of Texas, a certificate issued under au-
thority of an act of 1839, which provided that
every person immigrating to the republic between
October 1, 1837, and January 1, 1840, who was the
head of a family and actually resided within the
government with his or her family should be en-
titled to a grant of 640 acres of land, to be held
under such a certificate for three years, and then
conveyed by absolute deed to the settler, if in
the meantime he had resided permanently within
the republic and performed all the duties requir-
ed of citizens. Cannon v. Vaughan, 12 Tex. 401.
HEAD-SILVER. A name sometimes given to a
Common Fine (q. v.). By a payment of a certain
sum of money to the lord, litigants might try their
suits nearer home. Blount.
HEAFODWEARD. In old English law, one of the
services to be rendered by a thane, or a geneath
or villein, the precise nature of which is unknown.
Anc.Eng.Inst.
HEALER. One who heals or cures; specifically,
one who professes to cure bodily diseases without
medicine or any material means, according to the
tenets and practices of so-called "Christian
Science," whose beliefs and practices, being found-
ed on their religious convictions, are not per se
proof of insanity. In re Brush's Will, 72 N.Y.S.
425, 35 Misc. 689.
HEALGEMOTE. In Saxon law, a court-baron;
an ecclesiastical court; Haligemot (q. v.).
HEALING ACT. Another name for a curative
act or statute. See Lockhart v. Troy, 48 Ala. 584.
HEALSFANG. In Saxon law, a sort of pillory,
by which the head of the culprit was caught be-
tween two boards, as feet are caught in a pair of
stocks. Cowell. It was very early disused, no
mention of it occurring in the laws of the Saxon
851

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HEALTH
kings. Anc.Laws & Inst. of Eng. Gloss.; Spel-
man, Gloss.
HEALTH. State of being hale, sound, or whole
in body, mind or soul, well being. Venable v.
Gulf Taxi Line, 105 W.Va. 156, 141 S.E. 622, 624.
Freedom from pain or sickness; the most perfect
state of animal life. Not synonymous with "sani-
tation." Black v. Lambert, Tex.Civ.App., 235 S.W.
704, 706. The right to the enjoyment of health is
a subdivision of the right of personal security, one
of the absolute rights of persons. 1 Bl.Comm. 129,
134. As to injuries affecting health, see 3 Bl.
Comm. 122.
Bill of health. See Bill.
Board of health. See Board.
Health laws. Laws prescribing sanitary meas-
ures, and designed to promote or preserve the
health of the community.
Health officer. The officer charged with the
execution and enforcement of health laws. The
powers and duties of health officers are regulated
by local laws.
Public health. As one of the objects of the po-
lice power of the state, the "public health" means
the prevailingly healthful or sanitary condition of
the general body of people or the community in
mass, and the absence of any general or wide-
spread disease or cause of mortality. The whole-
some sanitary condition of the community at
large. State ex rel. Pollock v. Becker, 289 Mo. 660,
233 S.W. 641, 649.
Sound Health. See "Sound."
HEALTHY. Free from disease or bodily ailment,
or any state of the system peculiarly susceptible
or liable to disease or bodily ailment. Bell v. Jeff-
reys, 35 N.C. 356.
HEARING. Proceeding of relative formality,
generally public, with definite issues of fact or of
law to be tried, in which parties proceeded against
have right to be heard, and is much the same as a
trial and may terminate in final order. In re Se-
curities and Exchange Commission, D.C.N.Y., 14
F.Supp. 417, 419. Synonymous with trial, and in-
,cludes reception of evidence and arguments there-
on. Grant v. Michaels, 94 Mont. 452, 23 P.2d 266.
It is frequently used in a broader and more popu-
lar significance to describe whatever takes place
before magistrates clothed with judicial functions
and sitting without jury at any stage of the pror
.ceedings subsequent to its inception, and may in-.clude proceedings before an auditor. Menard v.
Bowman Dairy Co., 296 Ill.App. 323, 15 N.E.2d
1014, 1015.
In equity practice. The trial of the case, in-
-eluding introduction of evidence, argument of
counsel, and decree of court. Wolfe v. Wolfe, 144
Neb. 55, 12 N.W.2d 368, 369.
The words "final hearing" have long been used to desig-
nate the trial of an equity case upon the merits, as distin-
guished from the hearing of any preliminary questions
arising in the cause, which are termed "interlocutory."
Akerly v. Vilas, 24 Wis. 171, 1 Am.Rep. 166.
The term is broad enough to include judicial examina-
tion of issue between the parties whether of law or of fact.
Keown v. Keown, 231 Mass. 404, 121 N.E. 153, 154.
In criminal law. The examination of a prison-
er charged with a crime or misdemeanor, and of
the witnesses for the accused.
Fair hearing. See Fair Hearing.
Final hearing. See Final.
Preliminary examination. The examination of
a person charged with crime, before a magistrate.
Van Buren v. State, 65 Neb. 223, 91 N.W. 201.
Preliminary hearing. In criminal law. Synony-
mous with "preliminary examination." State v.
Rogers, 31 N.M. 485, 247 P. 828, 833.
The hearing given to a person accused of crime,
by a magistrate or judge, exercising the functions
of a committing magistrate, to ascertain whether
there is evidence to warrant and require the com-
mitment and holding to bail of the person accused.
See Bish. New Cr.L. §§ 32, 225.
It is in no sense a trial for the determination of accused's
guilt or innocence, but simply a course of procedure
whereby a possible abuse of power may be prevented, and
accused discharged or held to answer, as the facts warrant.
State v. Langford, 293 Mo. 436, 240 S.W. 167, 168.
Unfair hearing. See that title.
HEARING DE NOVO. Generally, a new hearing
or a hearing for the second time, contemplating
an entire trial in same manner in which matter
was originally heard and a review of previous
hearing. On hearing "de novo" court hears mat-
ter as court of original and not appellate jurisdic-
tion. Collier & Wallis v. Astor, 9 Ca1.2d 202, 70
P.2d 171, 173.
HEARSAY. Evidence not proceeding from the
personal knowledge of the witness, but from the
mere repetition of what he has heard others say.
That which does not derive its value solely from
the credit of the witness, but rests mainly on the
veracity and competency of other persons. The
very nature of the evidence shows its weakness,
and it is admitted only in specified cases from ne-
cessity. State v. Ah Lee, 18 Or. 540, 23 P. 424, 425.
Young v. Stewart, 191 N.C. 297, 131 S.E. 735, 737.
It is second-hand evidence, as distinguished from original
evidence; it is the repetition at second-hand of what would
be original evidence if given by the person who originally
made the statement. Literally, it is what the witness says
he heard another person say. Stockton v. Williams, 1
Doug., Mich., 546, 570 (citing 1 Starkie, Ev. 229). Evidence,
oral or written, is hearsay when its probative force depends
in whole or in part on the competency and credibility of a
person other than the witness. State v. Kluttz, 206 N.C.
726, 804, 175 S.E. 81. Hearsay is a statement made by a
person not called as a witness, received in evidence on the
trial. People v. Kraft, 36 N.Y.S. 1034, 1035, 91 Hun, 474.
The term is sometimes used synonymously with "report",
State v. Vettere, 76 Mont 574, 248 P. 179, 183; and with
"rumor".
HEARTH MONEY. A tax levied in England by
St. 14 Car. II. c. 10, consisting of two shillings on
every hearth or stove in the kingdom. It was ex-
tremely unpopular, and was abolished by 1 W. &
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HEEL
M. St. 1, c. 10. This tax was otherwise called
"chimney money."
HEARTH SILVER. In English law, a species of
modus or composition for tithes; Anstr. 323, 326;
viz.: a prescription for cutting down and using
for fuel the tithe of wood. 2 Burn, Eccl.Law 304.
HEAT OF PASSION. In criminal law, a state of
violent and uncontrollable rage engendered by a
blow or certain other provocation given, which
will reduce a homicide from the grade of murder
to that of manslaughter. Disney v. State, 72 Fla.
492, 73 So. 598, 601.
Passion or anger suddenly aroused at the time
by some immediate and reasonable provocation,
by words or acts of one at the time. State v.
Seaton, 106 Mo. 198, 17 S.W. 169.
HEAT PROSTRATION. Sunstroke. U. S. Fidel-
ity & Guaranty Co. v. Hoflinger, Ark., 45 S.W.2d
866, 867.
HEAT STROKE. Sunstroke. A sudden prostra-
tion resulting from exposure to excessive heat re-
gardless of the source from which the heat eman-
ates. Herbert v. State, 124 Neb. 312, 246 N.W.
454. A depression of the vital powers; due to ex-
posure to excessive heat, and manifesting itself as
prostration with syncope, etc. (heat exhaustion),
as prostration with insensibility, fever, etc. (true
sunstroke), or rarely as acute meningitis; sun-
stroke or insolation (in the wider sense). Smith
v. Standard Sanitary Mfg. Co., 211 Ky. 454, 277 S.
W. 806, 807.
HEAVE TO. In maritime parlance and admiralty
law, to stop a sailing vessel's headway by bringing
her head "into the wind," that is, in the direction
from which the wind blows. A steamer is said
to be "hove to" when held in such a position that
she takes the heaviest seas upon her quarter.
The Hugo, D.C.N.Y., 57 Fed. 411.
HEBBERMAN. An unlawful fisher in the
Thames below London bridge; so called because
they generally fished at ebbing tide or water. 4
Hen. VII, c. 15; Jacob.
HEBBERTHEF. In Saxon law, the privilege of
having the goods of a thief, and the trial of him,
within a certain liberty. Cowell.
HEBBING-WEARS. A device for catching fish in
ebbing water. St. 23 Hen. VIII, c. 5.
HEBDOMAD. A week; a space of seven days.
HEBDOMADIUS. A week's man; the canon or
prebendary in a cathedral church, who had the pe-
culiar care of the choir and the offices of it for
his own week. Cowell.
HEBOTE. The king's edict commanding his sub-
jects into the field.
HEBREW. Not the same as Yiddish. U. S. ex
rel. Engel v. Tod, C.C.A.N.Y., 294 F. 820, 822. See
Yiddish.
HECCAGIUM. In feudal law, rent paid to a lord
of the fee for a liberty to use the engines called
"becks."
HECK. An engine to take fish in the river Ouse.
23 Hen. VIII. c. 18.
HECK DAY. See Hoke Day.
HEDA. A small haven, wharf, or landing place.
HEDAGIUM. Toll or customary dues at the hithe
or wharf, for landing goods, etc., from which ex-
emption was granted by the crown to some par-
ticular persons and societies. Wharton; Cowell.
HEDGE. A purchase of grain to protect against
loss due to fluctuations in price. Aberdeen Farm-
ers' Equity Exchange v. Sand, 53 S.D. 574, 221 N.
W. 597. See Hedging.
To safeguard one's self from loss on a bet or
speculation by making compensatory arrange-
ments on the other side. Whorley v. Patton-Kjose
Co., 90 Mont. 461, 5 P.2d 210, 214.
HEDGE—BOTE. An allowance of wood for re-
pairing hedges or fences, which a tenant or lessee
has a right to take off the land let or demised to
him. 2 Bl.Comm. 35; Livingston v. Ten Broeck, 16
Johns. (N.Y.) 15, 8 Am.Dec. 287.
HEDGE—PRIEST. A vagabond priest in olden
time.
A hedge-parson; specifically, in Ireland, former-
ly, a priest who has been admitted to orders di-
rectly from a hedge-school, without preparation
in theological studies at a regular college. Cent.
Dict.
HEDGING. A means by which collectors and ex-
porters of grain or other products, and manufac-
turers, who make contracts in advance for the sale
of their goods, secure themselves against the fluc-
tuations of the market by counter contracts for
the purchase or sale of an equal quantity of the
product or of the material of manufacture. Whor-
ley v. Patton-Kjose Co., 90 Mont. 461, 5 P.2d 210,
214. The action of one who buys commodities in
selling an equal amount of such commodities on
exchange for the purpose of insurance against
fluctuations in price. Fraser v. Farmers' Co-op.
Co., 167 Minn. 369, 209 N.W. 33, 36.
The term "hedge," as used in the milling business, means
when the miller enters into a contract for the delivery of
flour at a future date, he buys wheat on the stock exchange
for future delivery, and when he purchases wheat for
actual delivery from the grain elevator to fulfill the con-
tract which he had previously made to furnish flour, he
sells the wheat which he has bought on the stock exchange.
Bluefield Milling Co. v. Western Union Telegraph Co., 104
W.Va. 150, 139 S.E. 638, 55 A.L.R. 636.
HEEDLESS. It is almost as strong as word
"reckless" and includes the element of disregard
of the rights of others. State v. Sullivan, 58 N.D.
732, 227 N.W. 230, 232. Careless. Bordonaro v.
Senk, 109 Conn. 428, 147 A. 136, 137.
HEEL BLANK. Several heel lifts cemented to.
gether, forming the height of the heel minus the
853

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HEEL
rand and a bottom or finishing lift. Brockton
Heel Co. v. International Shoe Co., D.C.N.H., 19
F.2d 145.
HEEL LOG. Succession of heel lifts coated with
an adhesive, piled one upon the other, to which
pressure has been applied, making a log of some
indeterminate length. Brockton Heel Co. v. In-
ternational Shoe Co., D.C.N.H., 19 F.2d 145.
HEEL LOG SECTION. A portion of a heel log
of any convenient length. Brockton Heel Co. v.
International Shoe Co., D.C.N.H., 19 F.2d 145.
HEELER. An opprobrious term, meaning in com-
mon acceptation a person who is the lackey or
hangeron of another, and in a political sense an
unscrupulous and disreputable person. Winns-
boro Cotton Oil Co. v. Carson, Tex.Civ.App., 185
S.W. 1002, 1008.
HEGEMONY. The leadership of one among sev-
eral independent confederate states.
HEGIRA. The epoch or account of time used by
the Arabians and the Turks, who begin the Mo-
hammedan era and computation from the day that
Mohammed was compelled to escape from Mecca.
to Medina which happened on the night of Thurs-
day, July 15, A.D. 622, under the reign of the Em-
peror Heraclius. Townsend, Dict. Dates; Wilson,
Gloss. The era begins July 16. The word is
sometimes spelled hejira but the former is the
ordinary usage. It is derived from hijrah, in one
form or another, an oriental term denoting flight,
departure.
The flight of Mohammed from Mecca. Webster,
Dict.
HEGUMENOS. The leader of the monks in the
Greek Church.
HEIFER. A young cow; a cow that has not had
a calf. Fletcher v. State, 198 Ark. 376, 128 S.W.
2d 997, 999.
HEIR. At common law. The person appointed
by law to succeed to the estate in case of intesta-
cy. 2 Bla.Comm. 201; Dukes v. Faulk, 37 S.C. 255,
16 S.E. 122, 34 Am.St.Rep. 745.
One who inherits property, whether real or
personal. Hartford-Connecticut Trust Co. v. Law-
rence, 106 Conn. 178, 138 A. 159, 160.
A person who succeeds, by the rules of law, to an estate
in lands, tenements, or hereditaments, upon the death of
his ancestor, by descent and right of relationship. Hoover
v. Smith, 96 Md. 393, 54 A. 102. Sewall v. Roberts, 115
Mass. 268. He who is born or begotten in lawful wedlock,
and upon whom the law casts the inheritance immediately
upon the death of his ancestor. Moffett v. Conley, 63 Okl.
3, 163 P. 118, 120.
One who would receive his estate under statute
of descent and distribution. Faulkner's Guardian
v. Faulkner, 237 Ky. 147, 35 S.W.2d 6, 7.
Moreover, the term is frequently used in a pop-
ular sense to designate a successor to property
either bly will or by law. Wallace v. Privett, 198
Cal. 746, 247 P. 906, 907.
According to many authorities, heir may be
nomen collectivum, as well in a deed as in a will,
and operate in both in the same manner as the
word heirs. 1 Rolle, Abr. 253; Ambl. 453; Cro.
Eliz. 313; 1 Burr. 38. But see 2 Prest.Est. 9, 10.
The word must be construed according to tes-
tator's intention as gathered from whole will.
Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121.
See, also, Heirs.
In the civil law. A universal successor in the
event of death. He who actively or passively suc-
ceeds to the entire property or estate, rights and
obligations, of a decedent, and occupies his place.
The term is indiscriminately applied to all persons who
are called to the succession, whether by the act of the party
or by operation of law. The person who is created uni-
versal successor by a will is called the "testamentary
heir ;" and the next of kin by blood is, in cases of intes-
tacy, called the "heir at law," or "heir by intestacy." The
executor of the common law in many respects corresponds
to the testamentary heir of the civil law. Again, the
administrator in many respects corresponds with the heir
by intestacy. By the common law, executors and adminis-
trators have no right except to the personal estate of the
deceased ; whereas the heir by the civil law is authorized
to administer both the personal and real estate. Story,
Confl. Laws, §§ 57, 508; 1 Brown, Civ. Law, 344.
The term "heir" has several significations. Sometimes it
refers to one who has formally accepted a succession and
taken possession thereof ; sometimes to one who is called
to succeed, but still retains the faculty of accepting or
renouncing, and it is frequently used as applied to one who
has formally renounced. Mumford v. Bowman, 26 La.Ann.
417.
In Scotch law. The person who succeeds to the
heritage or heritable rights of one deceased. 1
Forb.Inst. pt. 3, p. 75. The word has a more ex-
tended signification than in English law, compre-
hending not only those who succeed to lands, but
successors to personal property also. Wharton.
Right heir. This term was formerly used, in
the case of estates tail, to distinguish the prefer-
red heir, to whom the estate was limited, from
the heirs in general, to whom, on the failure of
the preferred heir and his line, the remainder over
was usually finally limited. With the abolition of
estates tail, the term has fallen into desuetude,.
but when still used, in modern law, it has no oth-
er meaning than "heir at law." Brown v. Wads-
worth, 168 N.Y. 225, 61 N.E. 250.
HEIR APPARENT. An heir whose right of in-
heritance is indefeasible, provided he outlive the
ancestor; as in England the eldest son, or his is-
sue, who must, by the course of the common law,
be heir to the father whenever he happens to die._
2 Bl.Comm. 208; 1 Steph.Comm. 358; Jones v.
Fleming, 37 Hun. (N.Y.) 230. One who, before
the death of the ancestor, is next in the line of
succession, provided he be heir to the ancestor
whenever he happens to die. Reese v. Stires, 87
N.J.Eq. 32, 103 A. 679. See, also, Apparent Heir.
HEIR AT LAW. He who, after his ancestor dies
intestate, has a right to all lands, tenements, and
hereditaments which belonged to him or of which
he was seised. The same as "heir general." For-
rest v. Porch, 100 Tenn. 391, 45 S.W. 676.
854

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HEIR OF THE BODY
The heir at common law is that person who succeeds to
the real estate in case of intestacy.. Walker v. Walker, 283
111. 11, 118 N.E. 1014, 1019. In its strict sense and technical
import, the person or persons appointed by law to succeed
to the estate in case of intestacy. Albright v. Albright, 116
Ohio St. 668, 157 N.E. 760, 762. In a comprehensive and
popular sense, one who inherits either real or personal
property: Gross v. Hartford-Connecticut Trust Co., 100
Conn. 332, 123 A. 907, 908. Next of kin, Meeker v. Forbes,
84 N.J.Eq. 271, 93 A. 887, 888.
In the term "heir at law," as used in will, suffix "at law"
adds merely expectant feature of one's statutory position
toward an ancestor or source of title who is considered as
still living, whereas word "heir" alone denotes that ances-
tor has already died. In re Ward's Estate, 297 N.Y.S. 16,
19, 162 Misc. 855.
A deceased person's "heirs at law" are those who succeed
to his estate of inheritance under statutes of descent and
distribution, in absence of testamentary disposition, and
not necessarily his_heirs at common law, who are persons
.succeeding to deceased's realty in case of his intestacy. In
re Towndrow's Will, 47 N.M. 173, 138 P.2d 1001, 1003.
HEIRS AT LAW SHALL NOT BE DISINHERIT-
ED BY CONJECTURE, BUT ONLY BY EXPRESS
WORDS OR NECESSARY IMPLICATION.
.Schoul. Wills § 479.
HEIR BENEFICIARY. In the civil law, one who
has accepted the succession under the benefit of
an inventory regularly made.
Heirs are divided into two classes, according to the man-
ner in which they accept the successions left to them,
to-wit, unconditional and beneficiary heirs. Unconditional
heirs are those who inherit without any reservation, or
without making an inventory, whether their acceptance be
express or tacit. Beneficiary heirs are those who have
accepted the succession under the benefit of an inventory
regularly made. Civ.Code La. art. 883. If the heir appre-
hend that the succession will be burdened with debts
beyond its value, he accepts with benefit of inventory, and
in that case he is respopsible only for the value of the suc-
cession.
HEIR BY ADOPTION. An adopted child, "who is
in a limited sense made an heir, not by the law,
but by the contract evidenced by the deed of adop-
tion." In re Sessions' Estate, 70 Mich.. 297, 38 N.
W. 249, 14 Am.St.Rep. 500.
HEIR BY CUSTOM. In English law, one whose
right of inheritance depends upon a particular and
local custom, such as gavelkind, or borough Eng-
lish. Co.Litt. 140.
HEIR BY DEVISE. One to whom lands are de-
vised by will; a devisee of lands. Answering to
the hceres factus (q. v.) of the civil law.
HEIR COLLATERAL. One who is not lineally
related to the decedent, but is of collateral kin;
e. g., his uncle, cousin, brother, nephew.
HEIR CONVENTIONAL. In the civil law, one
who takes a succession by virtue of a contract or
settlement entitling him thereto.
HEIR EXPECTANT. One whose parents were
living, as respects lots to which parents had title.
Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 616.
HEIR, FORCED. One who cannot be disinherit-
ed. See Forced Heirs.
HEIR GENERAL. An heir at law. The ordinary
heir by blood, succeeding to all the lands. For-
rest v. Porch, 100 Tenn. 391, 45 S.W. 676.
HEIR INSTITUTE. In Scotch law, one to whom
the right of succession is ascertained by disposi-
tion or express deed of the deceased. 1 Forb.Inst.
pt. 3, p. 75.
HEIR, IRREGULAR. In Louisiana, irregular
heirs are those who are neither testamentary nor
legal, and who have been established by law to
take the succession. See Civ.Code La. art. 878.
When there are no direct or collateral relatives
surviving the decedent, and the succession conse-
quently devolves upon the surviving husband or
wife, or illegitimate children, or the state, it is
called an "irregular succession."
HEIR, LEGAL. In the civil law, a legal heir is
one who takes the succession by relationship to
the decedent and by force of law.
This is different from a testamentary or conventional
heir, who takes the succession in virtue of the disposition
of man. See Civ.Code La. arts. 877, 879. The term is also
used in Anglo-American law in substantially the same
sense, that is, the person to whom the law would give the
decedent's property, real and personal, if he should die
intestate. Waller v. Martin, 106 Tenn. 341, 61 S.W. 73, 82
Am.St.Rep. 882. In legal strictness, the term signifies one
who would inherit real estate, but it is also used to indi-
cate one who would take under the statute of distribution.
Morse v. Ward, 92 Conn. 408, 103 A. 119, 120.
HEIR, MALE. In Scotch law, an heir institute,
who, though not next in blood to the deceased, is
his nearest male relation that can succeed to him.
1 Forb.Inst. pt. 3, p. 76. In English law, the near-
est male blood-relation of the decedent, unless
further limited by the words "of his body," which
restrict the inheritance to sons, grandsons, and
other male descendants in the right line. Jordan
v. Adams, 6 C.B.,N.S., 764; Goodtitle v. Herring,
1 East, 275; Ewan v. Cox, 9 N.J.Law, 14.
HEIR OF CONQUEST. In Scotch law, one who
succeeds to the deceased in conquest, i. e., lands
or other heritable rights to which the deceased
neither did nor could succeed as heir to his pre-
decessor.
HEIR OF LINE. In Scotch law, one who succeeds
lineally by right of blood; one who succeeds to
the deceased in his heritage;  e., lands and other
heritable rights derived to him by succession as
heir to his predecessor. 1 Forb.Inst. pt. 3, p. 77.
HEIR OF PROVISION. In Scotch law, one who
succeeds as heir by virtue of a particular provi-
sion in a deed or instrument.
HEIR OF TAILZIE. In Scotch law, he on whom
an estate is settled that would not have fallen to
him by legal succession. 1 Forb.Inst. pt. 3, p. 75.
HEIR OF THE BLOOD. An inheritor who suc-
ceeds to the estate by virtue of consanguinity with
the decedent, either in the ascending or descend..
ing line, including illegitimate children, but ex-
cluding husbands, wives, and adopted children.
Hayden v. Barrett, 172 Mass. 472, 52 N.E. 530, 70
Am.St.Rep. 295.
HEIR OF THE BODY. An heir begotten or borne
by the person referred to, or a child of such heir;
any lineal descendant of the decedent, excluding
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HEIR OF TILE BODY
a surviving husband or wife, adopted children,
and collateral relations; bodily heir. Ratliffe v.
Ratliffe, 182 Ky. 230, 206 S.W. 478, 479. Clarkson
v. Hatton, 143 Mo. 47, 44 S.W. 761, 39 L.R.A. 748,
65 Am.St.Rep. 635.
May be used in either of two senses : In their unrestrict-
ed sense, as meaning the persons who from generation to
generation become entitled by descent under the entail;
and in the sense of heirs at law, or those persons who are
descendants of him whom the statute of descent appoints
to take intestate estate. Bunn v. Butler, 300 Ill. 269, 133
N.E. 246, 247. Unless the will discloses an intention to the
contrary, the term "heirs of the body" is not synonymous
with children. Clark v. Cammack, 216 Ala. 346, 113 So. 270,
271. And ordinarily, such words are words of limitation
and not of purchase. Kirby v. Hulette, 174 Ky. 257, 192
S. W. 63, 65; contra: Owen v. Trail, 302 Mo. 292, 258 S. W.
699, 701. The words are sometimes deemed equivalent to
"issue" or "descendants" ; Rhode Island Hospital Trust
Co. v. Bridgham, 42 R.I. 161, 106 A. 149, 152, 5 A.L.R. 185;
and sometimes not; In re English's Estate, 270 Pa. 1, 112
A. 913, 914.
HEIR PRESUMPTIVE. The person who, if the
ancestor should die immediately, would, in the
present circumstances of things, be his heir, but
whose right of inheritance may be defeated by
the contingency of some nearer heir being born;
as a brother or nephew, whose presumptive suc-
cession may be destroyed by the birth of 'a child.
2 Bl.Comm. 208; 1 Steph.Comm. 358; Jones v.
Fleming, 37 Hun., N.Y., 230.
In Louisiana, the presumptive heir Is he who Is the near-
est relation of the deceased capable of inheriting. This
quality is given to him before the decease of the person
from whom he is to inherit, as well as after the opening of
the succession, until he has accepted or renounced it. La.
Civ.Code, art. 880.
HEIR SPECIAL. In English law, the issue in
tail, who claims per formam Boni; by the form
of the gift.
HEIR SUBSTITUTE, IN A BOND. In Scotch law,
he to whom a bond is payable expressly in case
of the creditor's decease, or after his death. 1
Forb.Inst. pt. 3, p. 76.
HEIR TESTAMENTARY. In the civil law, one
who is named and appointed heir in the testament
of the decedent. This name distinguishes him
from a legal heir, (one upon whom the law casts
the succession,) and from a conventional heir,
(one who takes it by virtue of a previous contract
or settlement.)
HEIR UNCONDITIONAL. In the civil law and in
Louisiana, one who inherits without any reserva-
tion, or without making an inventory, whether his
acceptance be express or tacit. Distinguished
from heir beneficiary. La.Civ.Code, art. 882.
HEIRDOM. Succession by inheritance.
HEIRESS. A female heir to a person having an
estate of inheritance. When there are more than
one, they are called "co-heiresses," or "co-heirs."
HEIRLOOMS. Such goods and chattels as, con-
trary to the nature of chattels, shall go by special
custom to the heir along with the inheritance, and
not to the executor. The termination "loom"
(Sax.) signifies a limb or member; so that an
heirloom is nothing else but a limb or member of
the inheritance. They are generally such things
as cannot be taken away without damaging or dis-
membering the freehold; such as deer in a park,
doves in a cote, deeds and charters, etc. 2 Bl.
Comm. 427.
This word seems to be compounded of heir, and loom,
that is, a frame, viz, to weave in. Some derive the word
loom from the Saxon Loma, or geloma, which signifies
utensils or vessels generally. However, this may be, the
word loom, by time, is drawn to a more general significa-
tion than it bore at the first, comprehending all imple-
ments of household, as tables, presses, cupboards, bed-
steads, wainscots, and which, by the custom of some coun-
tries, having belonged to a house are never inventoried
after the decease of the owner as chattels, but accrue to
the heir with the house itself. Minshew; 2 Poll. & Maitl.
361.
HEIRS. Technically, those persons designated by
law to succeed to the estate in case of intestacy.
Potter v. Potter, 306 Ill. 37, 137 N.E. 425, 426. See,
also, Heir.
A word used in deeds of conveyance, (either
solely, or in connection with others,) where it is
intended to pass a fee.
It is generally a word of limitation, and is not to be con-
strued as a word of purchase unless there are other control-
ling words showing such intention by the person using it.
McKnight v. Black, 240 Ky. 818, 43 S.W.2d 53, 54.
In the word is comprehended heirs of heirs in infinitum.
Co. Litt. 7b, 9a; Larew v. Larew, 146 Va. 134, 135 S.E. 819,
820.
It may have different meanings, just as under the Eng-
lish law the singular form, "heir," might have different
meanings, but, if there is no context, the word "heirs"
must be held to indicate the indefinite succession by inheri-
tance. .7Etna Life Ins. Co. v. Hoppin, C.C.A., 214 F. 928,
932. Under the terms of particular wills, however, or
under statutes abolishing the rule in Shelley's Case, Men-
ard v. Campbell, 180 Mich. 583, 147 N.W. 556, 558, Ann.Cas.
1916A, 802; it may be a word of purchase, and is fre-
quently deemed synonymous with "children," Cultice v.
Mills, 97 Ohio St. 112, 119 N.E. 200, 201; Williams v. J. C.
Armiger & Bro., 129 Md. 222, 98 A. 542, 544.
A devise or bequest to "heirs" primarily means those
who are heirs at the testator's death, and it is only when a
contrary intention appears that this presumption fails. In
re Bump's Will, 234 N.Y. 60, 136 N.E. 295, 296.
Bodily heirs. In a technical sense, the same as
"heirs of the body." Hartman v. Flynn, 189 N.C.
452, 127 S.E. 517, 519.
Normally, words of limitation, not of purchase. Stamey
v. McGinnis, 145 Ga. 226, 88 S.E. 935, 936. But they may
be used synonymously with "children." Scott v. Scott, 172
Ky. 658, 190 S.W. 143.
Joint heirs. Co-heirs. The term is also applied
to those who are or will be heirs to both of two
designated persons at the death of the survivor
of them, the word "joint" being here applied to
the ancestors rather than the heirs. See Gardiner
v. Fay, 182 Mass. 492, 65 N.E. 825.
Lawful heirs. The same as "heirs." In re
Irish's Estate, 89 Vt. 56, 94 A. 173, 174, Ann.Cas.
1917C, 1154. In a general sense, those whom the
law recognizes as the heirs of a decedent, but in
a special and technical sense, lineal descendants
only. Abbott v. Essex Co., 18 How. 215, 15 L.Ed.
352.
Legitimate heirs. Children born in lawful wed-
lock and their descendants, not including collateral
heirs or issue in indefinite succession. Lytle v.
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HEPTARCHY
Beveridge, 58 N.Y. 605; Prindle v. Beveridge, 7
Lans., N.Y., 231. Sometimes synonymous with
"lawful" heir. Corison v. Williams, 58 Cal.App.
282, 208 P. 331, 334.
Lineal heir. See Lineal Heir.
Living heirs. Technically words of description
instead of purchase. Johnson v. Coler, 187 Iowa,
734, 174 N.W. 654, 655.
Under a will giving the testator's wife an estate for life,
at her death all the property to be equally divided between
"our living children or to their living heirs," the words
"living heirs" should be given their technical meaning as
Including all the legal heirs of the deceased children of
testator that died after the death of testator. Potter v.
Potter, 306 Ill. 37, 137 N.E. 425, 427.
Natural heirs. Heirs by consanguinity as dis-
tinguished from heirs by adoption, and also as dis-
tinguished from collateral heirs. Smith v. Pen-
dell, 19 Conn. 112, 48 Am.Dec. 146; children; heirs
of the body, Maynard v. Henderson, 117 Ark. 24,
173 S.W. 831, 832, Ann.Cas.1917A, 1157. Yarring-
ton v. Freeman, 201 Ky. 135, 255 S.W. 1034, 1035.
HEIRS AND ASSIGNS. Ordinarily words of lim-
itation and not of purchase. In re Knapp's Will, 6
N.Y.S.2d 100, 168 Misc. 487. At common law, the
words were essential to conveyance granting title
in fee simple, and though they are unnecessary
for that or any purpose under statute when used
in wills or deeds, words still have that meaning.
In re Denari's Will, 300 N.Y.S. 1279, 165 Misc. 450.
HEIRSHIP. The quality or condition of being
heir, or the relation between the heir and his an-
cestor. It is a legal right, regulated by law, to be
enjoyed subject to the provisions of the statute.
Winke v. Olson, 164 Wis. 427, 160 N.W. 164, 166.
HEIRSHIP MOVABLES. In Scotch law. The
movables which go to the heir, and not to the
executor, that the land may not go to the heir
completely dismantled, such as the best of furni-
ture, horses, cows, etc., but not fungibles. Er-
skine, Inst. 3. 8. 13-17.
HELD. In reference to the decision of a court,
decided. See, also, Hold.
HELL. The name formerly given to a place un-
der the exchequer chamber, where the king's debt-
ors were confined. Rich.Dict.
HELM. Thatch or straw; a covering for the head
in war; a coat of arms bearing a crest; the tiller
or handle of the rudder of a ship.
HELOWE-WALL. The end-wall covering and de-
fending the rest of the building. Paroch. Antiq.
573.
HELSING. A Saxon brass coin, of the value of
a half-penny.
HE3IIPLEGIA. In medical jurisprudence. Uni-
lateral paralysis; paralysis of one side of the body,
commonly due to a lesion in the brain, but some-
times originating from the spinal cord, as in
"Brown-Sequard's paralysis," unilateral paralysis
with crossed ancesthesia. In the cerebral form,
the hemiplegia is sometimes "alternate" or cross-
ed, that is, occurring on the opposite side of the
body from the initial lesion.
Paralysis of half of the body, as of both legs or of both
arms, or an arm and leg. Gray v. United States, C.C.A.
Ark., 109 F.2d 728. 729. If the disease comes on rapidly or
suddenly, it is called "quick" hemiplegia; if slowly or
gradually, "chronic." The former variety is more apt to
affect the mental faculties than the latter; but, where
hemiplegia is complete, the operations of the mind are gen-
erally much impaired. Baughman v. Baughman, 32 Kan.
538, 4 P. 1003.
HEMOLDBORH, or HELMELBORCH. A title to
possession. The admission of this old Norse
term into the laws of the Conqueror is difficult
to be accounted for; it is not found in any Anglo-
Saxon law extant. Wharton.
HENCEFORTH. A word of futurity, which, as
employed in legal documents, statutes, and the
like, always imports a continuity of action or con-
dition from the present time forward, but excludes
all the past. Thomson v. American Surety Co.,
170 N.Y. 109, 62 N.E. 1073.
HENCHMAN. A page; an attendant; servant;
a herald. See Barnes v. State, 88 Md. 347, 41 A.
781. A footman; one who holds himself at the
bidding of another. It has come to mean here a
political follower; used in a rather bad sense.
Gates v. State, 140 Tex.Cr.R. 228, 143 S.W.2d 780,
783, 784.
HENEDPENNY. A customary payment of mon-
ey instead of hens at Christmas; a composition
for eggs. Cowell.
HENFARE. A fine for flight on account of mur-
der. Domesday Book.
HENGHEN. In Saxon law. A prison, a goal, or
house of correction.
HENGWYTE. Sax. In old English law. An ac-
quittance from a fine for hanging a thief. Fleta,
lib. 1, c. 47, § 17.
HENRICUS VETUS. Henry the Old, or Elder.
King Henry L is so called in ancient English chron-
icles and charters, to distinguish him from the
subsequent kings of that name. Spelman.
HEORDFAETE, or HUDEFIEST. In Saxon law.
A master of a family, keeping house, distinguish-
ed from a lower class of freemen, viz., folgeras,
(folgarii,) who had no habitations of their own,
but were house-retainers of their lords.
HEORDPENNY. Peter-pence (q. v.).
HEORDWERCH. In Saxon law. The service of
herdsmen, done at the will of their lord.
HEPBURN ACT. The name commonly given to
an act of Congress, June 29, 1906, amending §§
1, 6, 14, 15, 16 and 20 of the Interstate Commerce
Act, Feb. 4, 1887. (49 U.S.C.A. §§ 1, 6, 11, 14, 15, 16,
18, 20).
HEPTARCHY. A government exercised by seven
persons, or a nation divided into seven govern-
ments. In the year 5G0, seven different monarchies
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HERALD
had been formed in England by the German tribes,
namely, that of Kent by the Jutes; those of Sus-
sex, Wessex, and Essex by the Saxons; and those
of East Anglia, Bernicia, and Deira by the Angles.
To these were added, about the year 586, an eighth,
called the "Kingdom of Mercia," also founded by
the Angles, and comprehending nearly the whole
of the heart of the kingdom. These states formed
what has been designated the "Anglo-Saxon Oc-
tarchy," or more commonly, though not so cor-
rectly, the "Anglo-Saxon Heptarchy," from the cus-
tom of speaking of Deira and Bernicia under the
single appellation of the "Kingdom of Northum-
berland." Wharton.
HERALD. In ancient law, a herald was a dip-
lomatic messenger who carried messages between
kings or states, and especially proclamations of
war, peace, or truce. In English law, a herald is
an officer whose duty is to keep genealogical lists
and tables, adjust armorial bearings, and regu-
late the ceremonies at royal coronations and fun-
erals.
HERALDRY. The art, office, or science of her-
alds. Also an old and obsolete abuse of buying
and selling precedence in the paper of causes for
hearing.
HERALDS' COLLEGE. In England. An ancient
royal corporation, first instituted by Richard III.
in 1483. It comprises three kings of arms, six
heralds, and four marshals or pursuivants of
arms, together with the earl marshal and a sec-
retary. The heralds' books, compiled when prog-
resses were solemnly and regularly made into
every part of the kingdom, to inquire into the
state of families, and to register such marriages
and descents as were verified to them upon oath,
are allowed to be good evidence of pedigrees. The
heralds' office is still allowed to make grants of
arms and to permit change of names. 3 Starkie,
Ev. 843; Wharton.
HERBAGE. In English law. An easement or
liberty, which consists in the right to pasture cat-
tle on another's ground.
Feed for cattle in fields and pastures. Bract.
fol. 222; Co.Litt. 46; Steph.Touch. 97. A right to
herbage does not include a right to cut grass, or
dig potatoes, or pick apples. Simpson v. Coe, 4
N.H. 303.
HERBAGIUM ANTERIUS. The first crop of
grass or hay, in opposition to aftermath or second
cutting. Paroch.Antiq. 459.
HERBENGER, or HARBINGER. An officer in
the royal house, who goes before and allots the
noblemen and those of the household their lodg-
ings; also an innkeeper.
HERBERGAGIUM. Lodgings to receive guests
in the way of hospitality. Cowell.
HERBERGARE. To harbor; to entertain.
HERBERGATUS. Harbored or entertained in an
inn. Cowell.
HERBERY, or HERBURY. An inn. Cowell.
HERCIA. A harrow. Fleta, lib. 2, c. 77.
HERCIARE. To harrow. 4 Inst. 270.
HERCIATURA. In old English law. Harrowing;
work with a harrow. Fleta, lib. 2, c. 82, § 2.
HERCISCUNDA. In the civil law. To be divided.
Familia herciscunda, an inheritance to be divided.
Actio familice herciscundce, an action for dividing
an inheritance. Erciscunda is more commonly
used in the civil law. Dig. 10, 2; Inst. 3, 28, 4; Id.
4, 6, 20.
HERD, n. An indefinite number, more than a few,
of cattle, sheep, horses, or other animals of the
larger sorts, assembled and kept together as one
drove and under one care and management. Bo-
land v. Cecil, 65 Cal.App.2d Supp. 832, 150 P.2d
819, 822.
HERD, v. To tend, take care of, manage, and con-
trol a herd of cattle or other animals, implying
something more than merely driving them from
place to place. Phipps v. Grover, 9 Idaho 415, 75
P. 65.
HERDER. One who herds or has charge of a herd
of cattle, in the senses above defined. Hooker v.
McAllister, 12 Wash. 46, 40 P. 617.
HERDEWICH. A grange or place for cattle or
husbandry. Mon.Angl. pt. 3.
HERDWERCH, HEORDWERCH. Herdsmen's
work, or customary labor, done by shepherds and
inferior tenants, at the will of the lord. Cowell.
HEREAFTER. A word of futurity, always used in
statutes and legal documents as indicative of fu-
ture time, excluding both the present and the past.
Tremont & S. Mills v. Lowell, 165 Mass. 265, 42
N.E. 1134.
HEREBANNUM. In old English law. A procla-
mation summoning the army into the field. A.
mulct or fine for not joining the army when sum-
moned. Spelman. A tax or tribute for the sup-
port of the army. Du Cange.
HEREBOTE. The royal edict summoning the
people to the field. Cowell.
HEREDAD. In Spanish law. A piece of land un-
der cultivation; a cultivated farm, real estate; an
inheritance or heirship.
HEREDAD YACENTE. From Lat. "Hcereditas ja-
cens," (q. v.) In Spanish law. An inheritance not
yet entered upon or appropriated. White, New
Recop. b. 2, tit. 19, c. 2, § 8.
HEREDERO. In Spanish law. Heir; he who, by
legal or testamentary disposition, succeeds to the
property of a deceased person. "Hceres censeatur
cum defunct° una eademque persona." Las Par-
tidas, 7, 9, 13. Emeric v. Alvarado, 64 Cal. 529,
2 P. 433.
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HERIOT
HEREDITAGIUM. In Sicilian and Neapolitan
law. That which is held by hereditary right; the
same with hereditamentum (hereditament) in
English law. Spelman.
HEREDITAMENTS. Things capable of being in-
herited, be it corporeal or incorporeal, real, per-
sonal, or mixed, and including not only lands and
everything thereon, but also heirlooms, and certain
furniture which, by custom, may descend to the
heir together with the land. Co.Litt. 5b; 2 Bl.
Comm. 17; Nellis v. Munson, 108 N.Y. 453, 15
N.E. 739. Sox v. Miracle, 35 N.D. 458, 160 N.W.
716, 719.
Things which may be directly inherited, as contrasted
with things which go to the personal representative of a
deceased. Denver Joint Stock Land Bank of Denver v.
Dixon, 57 Wyo. 523, 122 P.2d 842, 846, 140 A.L.R. 1270.
At common law corporeal hereditaments were physical
objects, comprehended under the term land, and were said
to lie in livery, while incorporeal hereditaments existed
only in contemplation of law, were said to lie in grant and
were affiliated with chattel interests. National Supply Co.
v. McLeod, 116 Kan. 477, 227 P. 350.
The term includes a few rights unconnected with land,
but it is generally used as the widest expression for real
property of all kinds, and is therefore employed in con-
veyances after the words "lands" and "tenements," to
include everything of the nature of realty which they do
not cover. Sweet.
Corporeal Hereditaments. Substantial perma-
nent objects which may be inherited. The term
"land" will include all such. 2 Bl.Comm. 17; Sox
v. Miracle, 35 N.D. 458, 160 N.W. 716, 719.
Incorporeal Hereditaments. Anything, the sub-
ject of property, which is inheritable and not tan-
gible or visible. 2 Woodd.Lect. 4.
A right issuing out of a thing corporate (whether real or
personal) or concerning or annexed to or exercisable within
the same. 2 Bl.Comm. a0; 1 Washb.Real Prop. 10. A
right growing out of, or concerning, or annexed to, a cor-
poreal thing, but not the substance of the thing itself.
Huston v. Cox, 103 Kan. 73, 172 P. 992.
HEREDITARY. That which is the subject of in-
heritance.
HEREDITARY DISEASE. Physical ailment trans-
mitted or transmissible from parent to child in con-
sequence of the infection of the former or the pres-
ence of the disease in his system, and without ex-
posure of the latter to any fresh source of infec-
tion or contagion. South Atlantic Life Ins. Co. v.
Hurt's Adm'x, 115 Va. 398, 79 S.E. 401, 404.
HEREDITARY RIGHT TO THE CROWN. The
crown of England, by the positive constitution of
the kingdom, has ever been descendible, and so
continues, in a course peculiar to itself, yet subject
to limitation by parliament; but, notwithstanding
soh limitation, the crown retains its descendible
quality, and becomes hereditary in the prince to
whom it is limited. 1 Bl.Comm. 191.
HEREDITARY SUCCESSION. Inheritance by
law; title by descent; the title whereby a person,
on the death of his ancestor, acquires his estate
by right of representation as his heir at law. In
re Yahola's Heirship, 142 Okl. 79, 285 P. 946.
HEREDITY. That biological law by which all liv
ing beings tend to repeat themselves in their de-
scendants. Prewitt v. State, 106 Miss. 82, 63 So.
330, 331, 6 A.L.R. 1476.
HEREFARE. Sax. A going into or with an army;
a going out to war, (profectio militarist) an expe-
dition. Spelman.
HEREGEAT. A heriot, (q. v.)
HEREGELD. Sax. In old English law. A trib-
ute or tax levied for the maintenance of an army.
Spelman.
HEREMITORIUM. A place of retirement for her-
mits. Mon.Angl. tom. 3, p. 18.
HEREMONES. Followers of an army.
HERENACH. An archdeacon. Cowell.
HERES. Heir; an heir. A form of hceres, very
common in the civil law. See Flres.
HERESCHIP. In old Scotch law. Theft or rob-
bery. 1 Pitc.Crim.Tr. pt. 2, pp. 26, 89.
HERESLITA, HERESSA, HERESSIZ. A hired sol-
dier who departs without license. 4 Inst. 128.
HERESY. In English law. An offense against
religion, consisting not in a total denial of Chris-
tianity, but of some of its essential doctrines, pub-
licly and obstinately avowed. 4 Bl.Comm. 44, 45.
An opinion on divine subjects devised by human
reason, openly taught, and obstinately maintained.
1 Hale, P.C. 384.
This offense is now subject only to ecclesiastical
correction, and is no longer punishable by the secu-
lar law. 4 Steph.Comm. 233.
HERETOCH. A general, leader, or commander;
also a baron of the realm. Du Fresne.
HERETOFORE. This word simply denotes time
past, in distinction from time present or time fu-
ture, and has no definite and precise signification
beyond this. Andrews v. Thayer, 40 Conn. 157;
Millers' Mut. Fire Ins. Co. v. City of Austin, Tex.
Civ.App., 210 S.W. 825, 827.
HERETUM. In old records. A court or yard for
drawing up guards or military retinue. Cowell.
HEREZELD. In Scotch law. A gift or present
made or left by a tenant to his lord as a token of
reverence. Skene.
HERGE. In Saxon law. Offenders who joined in
a body of more than thirty-five to commit depreda-
tions.
HERIGALDS. In old English law. A sort of gar-
ment. Cowell.
HERIOT. In English law. A customary tribute
of goods and chattels, payable to the lord of the
fee on the decease of the owner of the land.
Heriots are divided into heriot service and heriot custom.
The former expression denotes such as are due upon a
special reservation in a grant or lease of lands, and there-
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HERISCHILD
fore amount to little more than a mere rent; the latter
arise upon no special reservation whatever, but depend
solely upon immemorial usage and custom. 2 BI.Comm.
422. See Adams v. Morse, 51 Me. 501.
HERISCHILD. In old English law. A species of
military service, or knight's fee. Cowell.
HERISCHULDA. In old Scotch law. A fine or
penalty for not obeying the proclamation made
for warfare. Skene.
HERISCINDIUM. A division of household goods.
Blount.
HERISLIT. Laying down of arms. Blount. De-
sertion from the army. Spelman.
HERISTAL. The station of an army; the place
where a camp is pitched. Spelman.
HERITABLE. Capable of being taken by descent.
A term chiefly used in Scotch law, where it enters
into several phrases.
HERITABLE BOND. A bond for a sum of money
to which is added, for further security of the cred-
itor, a conveyance of land or heritage to be held by
the creditor as pledge. 1 Ross, Con y . 76; 2 Ross,
Cony . 324.
HERITABLE JURISDICTIONS. Grants of crimi-
nal jurisdiction formerly bestowed on great fami-
lies in Scotland, to facilitate the administration of
justice. Whishaw. Abolished in effect by St. 20
Geo. II. c. 50. Tomlins.
HERITABLE OBLIGATION. In Louisiana. An
obligation is heritable when the heirs and assigns
of one party may enforce the performance against
the heirs of the other. Civ.Code La. art. 1997.
HERITABLE RIGHTS. In Scotch law. Rights of
the heir; all rights to land or whatever is con-
nected with land, as mills, fishings, tithes, etc.
HERITABLE SECURITY. Security constituted
by heritable property. Encyc. Dict.
HERITAGE. In the civil law. Every species of
immovable which can be the subject of property;
such as lands, houses, orchards, woods, marshes,
ponds, etc., in whatever mode they may have been
acquired, either by descent or purchase. 3 Toul-
lier, No. 472.
In Scotch law. Land, and all property connected
with land; real estate, as distinguished from mov-
ables, or personal estate. Bell.
HERITOR. In Scotch law. A proprietor of land.
1 Kames, Eq.Pref.
HERMANDAD. In Spanish law. A fraternity
formed among different towns and villages to pre-
vent the commission of crimes, and to prevent the
abuses and vexations to which they were subjected
by men in power. Bouvier.
HERMAPHRODITE. In medical jurisprudence.
A person of doubtful or double sex; one possess-
ing, really or apparently, and in more or less de-
veloped form, some or all of the genital organs
of both sexes.
HERMAPHRODITUS TAM MASCULO QU AM
FCEMINIE COMPARATUR, SECUNDUM PRIEV-
ALENTIAM SEXUS INCALESCENTIS. An her-
maphrodite is to be considered male or female ac-
cording to the predominance of the exciting sex.
Co.Litt. 8; Bract. fol. 5.
HERMENEUTICS. The science or art of con-
struction and interpretation. By the phrase "legal
hermeneutics" is understood the systematic body
pf rules which are recognized as applicable to the
construction and interpretation of legal writings.
HERMER. A great lord. Jacob.
HERMOGENIAN CODE. See Codex Hermogeni-
anus.
HERNESCUS. A heron. Cowell.
HERNESIUM, or HERNESIUM. Household
goods; implements of trade or husbandry; the rig-
ging or tackle of a ship. Cowell.
HERNIA. A protrusion of any organ through an
abnormal opening in wall of the containing cavity;
rupture. In re Frihauf, 135 P.2d 427, 430, 58 Wyo.
479; Stoddard v. Mason's Blue Link Stores, 55
Idaho 609, 45 P.2d 597, 600.
HEROUD, HERAUD. L. Fr. A herald.
HERPEX. A harrow. Spelman.
HERPICATIO. In old English law. A day's work
with a harrow. Spelman.
HERRING SILVER. This was a composition in
money for the custom of supplying herrings for
the provision of a religious house. Wharton.
HERSHIP. The crime, in Scotland, of carrying
off cattle by force; it is described as "the master-
ful driving off of cattle from a proprietor's
grounds." Bell.
HERUS. Lat. A master. Servus tacit ut herus
det, the servant does [the work] in order that the
master may give [him the wages agreed on.]
Herus dat ut servus facit, the master gives [or
agrees to give, the wages,] in consideration of,
or with a view to, the servant's doing [the work.]
2 Bl.Comm. 445.
HESIA. An easement. Du Cange.
HEST CORN. In old records. Corn or grain giv-
en or devoted to religious persons or purposes. 2
Mon.Angl. 367/3,, Cowell.
HESTA, or HESTHA. A little loaf of bread. A
capon or young cockerel.
HETIERARCHA. The head of a religious house;
the head of a college; the warden of a corpora-
tion.
HETIERIA. In Roman law. A company, society,
or college.
HEUVELBORH. Sax. In old English law. A
surety, (warrantus.)
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HIGHNESS
HEYLODE. In old records. A customary burden
upon inferior tenants, for mending or repairing
hays or hedges.
HEYMECTUS. A hay-net; a net for catching
conies. Cowell.
HIBERNAGIUM. The season for sowing winter
corn. Cowell.
MDAGE. An extraordinary tax formerly pay-
able to the crown for every hide of land. This
taxation was levied, not in money, but provision of
armor, etc. Cowell.
HIDALGO. In Spanish law. A noble; a person
entitled to the rights of nobility. By hidalgos
are understood men chosen from good situations in.
life, (de buenos lugures,) and possessed of proper-
ty, (algo.) White, New Recop. b. 1, tit. 5, c. 1.
HIDALGUIA. In Spanish law. Nobility by de-
scent or lineage. White, New Recop. b. 1, tit. 5, c.
3, § 4.
HIDE. In old English law. A measure of land,
being as much as could be worked with one plow.
It is variously estimated at from 60 to 100 acres,
but was probably determined by local usage. An-
other meaning was as much land as would support
one family or the dwellers in a mansion-house.
Also a house; a dwelling-house. A hide was an-
ciently employed as a unit of taxation. 1 Poll. &
Maitl. 347, such tax being called hidegild.
HIDE AND GAIN. In English law. A term an-
ciently applied to arable land. Co.Litt. 85b.
HIDE LANDS. In Saxon law. Lands belonging
to a hide; that is, a house or mansion. Spelman.
HIDEL. In old English law. A place of protec-
tion; a sanctuary. St. 1 Hen. VII. cc. 5, 6; Cow-
ell.
HIDGILD. A sum of money paid by a villein or
servant to save himself from a whipping. Fleta,
1. 1, c. 47, § 20.
HIERARCHY. Originally, government by a body
of priests. Now, the body of officers in any church
or ecclesiastical institution, considered as form-
ing an ascending series of ranks or degrees of
power and authority, with the correlative subjec-
tion, each to the one next above. Derivatively, any
body of men, taken in their public capacity, and
considered as forming a chain of power, as above
described.
HIGH. This term, as used in various compound
legal phrases, is sometimes merely an addition of
dignity, not importing a comparison; but more
generally it means exalted, either in rank or lo-
cation, or occupying a position of superiority, and
in a few instances it implies superiority in respect
to importance, size, or frequency or publicity of
use, e. g., "high seas," "highway."
As to high "Bailiff," "Constable," "Crimes,"
"Justice," "Justiciar," "License," "Prerogative
writ," "Probability rule," "School," "Sea," "Sher-
iff," "Tide," `Treason," and "Water-Mark," see
those titles.
HIGH COMMISSION COURT. See Court of High
Commission.
HIGH COURT OF ADMIRALTY. See Court of
Admiralty.
HIGH COURT OF DELEGATES. See Court of
Delegates.
HIGH COURT OF ERRORS AND APPEALS.
See Court of Errors and Appeals.
HIGH COURT OF JUSTICE. See Supreme Court
of Judicature.
HIGH COURT OF PARLIAMENT. See Parlia-
ment.
HIGH DEGREE OF CARE AND DILIGENCE.
See Care.
HIGHBINDER. A rough, one of a Chinese secret
society composed of blackmailers. People v. Ho
Kim You, 24 Cal.App. 451, 141 P. 950, 956.
HIGHER AND LOWER SCALE. In the prac-
tice of the English supreme court of judicature
there are two scales regulating the fees of the
court and the fees which solicitors are entitled to
charge. The lower scale applies (unless the court
otherwise orders) to the following cases: All
causes and matters assigned by the judicature
acts to the king's bench, or the probate, divorce,
and admiralty divisions; all actions of debt, con-
tract, or tort; and in almost all causes and mat-
ters assigned by the acts to the chancery division
in which the amount in litigation is under £1,000.
The higher scale applies in all other causes and
matters, and also in actions falling under one of
the above classes, but in which the principal re-
lief sought to be obtained is an injunction. Sweet.
HIGHEST DEGREE OF CARE. A standard of
care exacted in some jurisdictions of common car-
riers of passengers. The standard is relative, not
absolute, and is sometimes regarded as no more
than reasonable care measured by the circum-
stances. See Blashfield, Cyc. of Automobile Law
and Prac., Perm. Ed., § 2151.
HIGHEST PROVED VALUE. In an action of
trover the amount which the jury from a consid-
eration of all the evidence, may find to be the
highest value of the property during the period
between the conversion and the trial. Durden v.
Durden, 58 Ga.App. 46, 197 S.E. 493, 494.
HIGHGRADING. The practice of stealing ore,
in mining vernacular. People v. Siderius, 29 Cal.
App.2d 361, 84 P.2d 545, 547.
HIGH-JACKER. Hi-jacker. Another name for
robber. State v. One Certain Buick Sedan, 209
Iowa, 791, 229 N.W. 173, 176.
HIGHNESS. A title of honor given to princes.
The kings of England, before the time of James I,
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HIGHWAY
were not usually saluted with the title of "Majes-
ty," but with that of "Highness." The children of
crowned heads generally receive the style of
"Highness." Wharton.
HIGHWAY. An easement acquired by the public
in the use of a road or way for thoroughfare. Bo-
lender v. Southern Michigan Telephone Co., 182
Mich. 646, 148 N.W. 697, 700.
A free and public roadway, or street; one which
every person has the right to use. Abbott v. Du-
luth, C.C.Minn., 104 F. 837. Illinois Cent. R. Co. v.
Bennett, C.C.A.Miss., 296 F. 436, 437. Its prime
essentials are the right of common enjoyment on
the one hand and the duty of public maintenance
on the other. Hildebrand v. Southern Bell Tele-
phone & Telegraph Co., 219 N.C. 402, 14 S.E.2d 252,
254, 255.
The generic name for all kinds of public ways, whether
carriage-ways, bridle-ways, foot-ways, bridges, turnpike
roads, railroads, canals, ferries or navigable rivers; 6 Mod.
255; Ang.Highw. c. 1; 3 Kent 432; City of St. Louis v.
Bell Place Realty Co., 259 Mo. 126, 168 S.W. 721, 722. As
to streets and alleys, Iowa Telephone Co. v. City of Keo-
kuk, D.C., 226 F. 82, 87; Burns v. Kendall, 96 S.C. 385, 80
S.E. 621, 622. Every public thoroughfare. Oregon Short
Line R. Co. v. Pfost, 53 Idaho 559, 27 P.2d 877. It refers
to roadway or street which can be used for travel, as dis-
tinguished from way upon which road can be or is being
constructed. Allen v. Jones, 47 S.D. 603, 201 N.W. 353.
There is a difference in the shade of meaning conveyed
by two uses of the word. Sometimes it signifies right of
free passage, in the abstract, not importing anything about
the character or construction of the way. Thus, a river
is called a "highway ;" and it has been not unusual for
congress, in granting a privilege of building a bridge, to
declare that it shall be a public highway. Again, it has
reference to some system of law authorizing the taking a
strip of land, and preparing and devoting it to the use of
travelers. In this use it imports a roadway upon the soil,
constructed under the authority of these laws. Abbott.
Commissioners of Highways. Public officers
appointed in the several counties and municipali-
ties, in many states, to take charge of the open-
ing, altering, repair, and vacating of highways
within their respective jurisdictions.
Common highway. A road to be used by the
community at large for any purpose of transit
or traffic. Ham. N. P. 239; Railway Co. v. State,
23 Fla. 546, 3 So. 158, 11 Am.St.Rep. 395.
Highway Acts, or Laws. The body or system of
laws governing the laying out, repair, and use of
highways.
Highway Crossing. A place where the track of
a railroad crosses the line of a highway.
Highway-rate. In English law. A tax for the
maintenance and repair of highways, chargeable
upon the same property that is liable to the poor-
rate.
Highway Robbery. See Robbery.
Highway Tax. A tax for and applicable to the
making and repair of highways. Stone v. Bean,
15 Gray (Mass.) 44.
Public Highway. One under the control of and
kept by the public, established by regular proceed.
ings for the purpose, or generally used by the pub-
lic for twenty years, or dedicated by the owner of
the soil and accepted by the proper authorities and
for the maintenance of which they are responsible.
State v. Gross, 119 N.C. 868, 26 S.E. 91.
It includes roads, streets, alleys, lanes, courts, places,
trails, and bridges, laid out or erected as such by the pub-
lic, or, if laid out and erected by others, dedicated or aban-
doned to the public, or made such in actions for the parti-
tion of real property. Patterson v. Munyan, 93 Cal. 128, 29
P. 250.
It has been said that if the word "highway" is given
its customary meaning, the phrase "public highway" is an
example of tautology—the needless or useless repetition
of the same idea, of which the law seems to furnish so
many illustrations. See Galloway v. Wyatt Metal & Boiler
Works, 181 So. 187, 189 La. 837; Blashfield, Cyc. of Auto-
mobile Law and Prac., Perm. Ed., § 3.
Royal Highways. There were four royal high-
ways in Yorkshire, three by land and one by wa-
ter, where the king claimed all forfeitures. Maitl.
Domesd. Book and Beyond 87.
HIGHWAYMAN. A bandit; one who robs trav-
elers upon the highway. Anderson v. Hartford
Accident & Indemnity Co., 77 Cal.App. 641, 247 P.
507, 510.
HIGLER. In English law. A hawker or peddler.
A person who carries from door to door, and sells
by retail, small articles of provisions, and the
like.
HIGUELA. In Spanish law. A receipt given by
an heir of a decedent, setting forth what property
he has received from the estate.
HIIS TESTIBUS. Words formerly used in deeds,
signifying these being witness. They have been
disused since Henry VIII. Co.Litt.; Cowell.
HI-JACKER. High-Jacker. See that title.
HIKENILD STREET. One of the four great
Roman roads of Britain. More commonly called
"Ikenild Street."
HILARY RULES. A collection of orders and
forms extensively modifying the pleading and
practice in the English superior courts of common
law, established in Hilary term, 1834. Stimson.
HILARY TERM. In English law. A term of
court, beginning on the 11th and ending on the
31st of January in each year. Superseded (1875)
by Hilary sittings, which begin January 11th, and
end on the Wednesday before Easter.
HINDENI HOMINES. A society of men. The
Saxons ranked men into three classes, and valued
them, as to satisfaction for injuries, etc., accord.
ing to their class. The highest class were valued
at 1,200s., and were called "twelf hindmen;" the
middle class at 600s., and called "sexhindmen;"
the lowest at 200s., called "twyhindmen." Their
wives were termed "hindas." Brompt. Leg. Al-
fred. c. 12.
HINDER AND DELAY. A phrase used to signi-
fy an act amounting to an attempt to defraud,
rather than a successful fraud; to put some ob-
stacle in the path of, or interpose some time, unjus-
tifiably, before a creditor can realize what is ow-
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IILOTIIBOTE
ed out of his debtor's property. Walker v. Say-
ers, 5 Bush., Ky., 582.
HINDU LAW. The system of native law prevail-
ing among the Gentoos, and administered by the
government Of British India. It is not the law
of India or of any defined region. It is the law
of castes, class, orders and even families which
the Hindus carry. about with them. 17 L.Q.R. 209.
Bryce, Extension of Law in 1 Sel. Essays in Ang-
lo-Amer. Leg. Hist. 597.
HINE, or HIND. In old English law. A husband-
ry servant.
HINEFARE. In old English law. The loss or
departure of a servant from his master. Domes-
day.
HINEGELD. A ransom for an offense committed
by a servant. Cowell.
HIPOTECA. In Spanish law. A mortgage of
real property.
HIRCISCUNDA. See Herciscunda.
HIRE, v. To purchase the temporary use of a
thing, or to stipulate for the labor or services of
another. See Hiring.
For definitions of the various species of this
class of contracts, under their Latin names, see
Locatio and following titles.
To engage in service for a stipulated reward, as to hire a
servant for a year, or laborers by the day or month; to
engage a man to temporary service for wages. To "em-
ploy" is a word of more enlarged signification. A man
hired to labor is employed, but a man may be employed in
a work who is not hired. Ozark Minerals Co. v. Murphy,
384 Ill. 94, 51 N.E.2d 197, 201.
HIRE, n. Compensation for the use of a thing,
or for labor or services. State v. Kenyon, Inc.,
Tex.Civ.App., 153 S.W.2d 195, 197.
A bailment in which compensation is to be giv-
en for the use of a thing, or for labor and services
about it. 2 Kent 456; Story, Bailm. § 359. The
divisions of this species of contract are denoted
by Latin names.
HIREMAN. A subject. Du Cange.
HIRER. One who hires a thing, or the labor or
services of another person. Turner v. Cross, 83
Tex. 218, 18 S.W. 578, 15 L.R.A. 262.
HIRING. A contract by which one person grants
to another either the enjoyment of a thing or the
use of the labor and industry, either of himself or
his servant, during a certain time, for a stipulat-
ed compensation, or by which one contracts for
the labor or services of another about a thing bail-
ed to him for a specified purpose.
A contract by which one gives to another the temporary
possession and use of property, other than money, for
reward, and the latter agrees to return the same to the
former at a future time.
Synonyms
"Hiring" and "borrowing" are both contracts by which a
qualified property may be transferred to the hirer or bor-
rower, and they differ only in this, that hiring is always
for a price, stipend, or recompense, while borrowing 14
merely gratuitous. 2 Bl.Comm. 453; Neel v. State, 33 Tex.
Cr.R. 408, 26 S.W. 726.
HIRING AT WILL. A general or indefinite hir-
ing. Long v. Forbes, 58 Wyo. 533, 136 P.2d 242,
246.
HIRST, HURST. In old English laws A wood.
Co.Litt. 4b.
HIS. This pronoun, generically used, may refer
to a person of either sex. Danforth v. Emmons,
124 Me. 156, 126 A. 821, 823; Wilmette v. Brachle,
110 Ill.App. 356.
Its use in a written instrument, in referring to a person
whose Christian name is designated therein by a mere ini-
tial, is not conclusive that the person referred to is a male;
it may be shown by parol that the person intended is a
female. Berniaud v. Beecher, 71 Cal. 38, 11 P. 802.
HIS EXCELLENCY. In English law. The title
of a viceroy, governor general, ambassador, or
commander in chief.
In American law. This title is given to the
governor of Massachusetts by the constitution of
that state; and it is commonly given, as a title of
honor and courtesy, to the governors of the other
states and to the president of the United States.
It is also customarily used by foreign ministers
in addressing the secretary of state in written
communications.
HIS HONOR. A title given by the constitution of
Massachusetts to the lieutenant governor of that
commonwealth. Mass. Const. part 2, c. 2, § 2,
art. 1. It is also customarily given to some in-
ferior magistrates, as the mayor of a city.
HIS TESTIBUS. Lat. These being witnesses.
The attestation clause in old deeds and charters.
See Hiis Testibus.
HISSA. A lot or 'portion; a share of revenue or
rent. Wilson's Gloss. Ind.
HITHERTO. In legal use, this term always re-
stricts the matter in connection with which it is
employed to a period of time already passed. Ma-
son v. Jones, 13 Barb. (N.Y.) 479.
HIWISC. In old English law. A hide of land.
According to Maitland (Domesday Book 359), a
household.
HLAF ZETA. Sax. A servant fed at his master's
cost.
HLAFORD. Sax. A lord. 1 Spence, Ch. 36.
HLAFORDSOCNA. Sax. A lord's protection.
Du Cange.
HLAFORDSWICE. Sax. In Saxon law. The
crime of betraying one's lord, (prodittio donitini;)
treason. Crabb, Eng.Law, 59, 301.
HLASOCNA. Sax. The benefit of the law. Du
Cange.
HLOTHBOTE. In Saxon law. A fine for being
present at an unlawful assembly. Spelman.
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IELOTHE
HLOTHE. In Saxon law. An unlawful assembly
from eight to thirty-five, inclusive. Cowell.
HOASTMEN. In English law. An ancient gild
or fraternity at Newcastle-upon-Tyne, who dealt
in sea coal. St. 21 Jac. I. c. 3.
HOBBIT. A measure of weight in use in Wales,
equal to 168 pounds, being made up of four Welsh
pecks of 42 pounds each. Hughes v. Humphreys,
26 Eng. L. & Eq. 132.
HOBBLERS. In old English law. Light horse-
men or bowmen; also certain tenants, bound by
their tenure to maintain a little light horse for
giving notice of any invasion, or such like peril,
towards the seaside. Camden, Brit.
HOC. Lat. This. Hoc intuitu, with this expecta-
tion. Hoc loco, in this place. Hoc nomine, in this
name. Hoc titulo, under this title. Hoc voce, un-
der this word.
HOC PARATUS EST VERIFICARE. Lat. This
he is ready to verify.
HOC QUIDEM PERQUAM DURUM EST, SED
ITA LEX SCRIPTA EST. Lat. This indeed is ex-
ceedingly hard, but so the law is written; such is
the written or positive law. An observation quoted
by Blackstone as used by Ulpian in the civil law;
and applied to cases where courts of equity have
no power to abate the rigor of the law. Dig. 40,
9, 12, 1; 3 Bl. Comm. 430.
HOC SERVABITUR QUOD INITIO CONVENIT.
This shall be preserved which is useful in the
beginning. Dig. 50, 17, 23; Bract. 73b.
HOCCUS SALTIS. A hoke, hole, or lesser pit of
salt. Cowell.
HOCK DAY. See Hock-Tuesday Money, infra.
HOCK-TUESDAY MONEY. This was a duty giv-
en to the landlord that his tenants and bondmen
might solemnize the day on which the English
conquered the Danes, being the second Tuesday
after Easter week. Cowell. See Hoke Day, infra.
HOCKETTOR, or HOCQUETEUR. A knight of
the post; a decayed man; a basket carrier. Cow-
ell.
HODGE-PODGE ACT. A name applied to a stat-
ute which comprises a medley of incongruous sub-
jects.
HOG. This word may include a sow; Shubrick
v. State, 2 S.C. 21; a pig; Lavender v. State, 60
Ala. 60; Washington v. State, 58 Ala. 355; and
may refer to dead as well as a living animal;
Whitson v. Culbertson, 7 Ind. 195; Hunt v. State,
55 Ala. 140; Reed v. State, 16 Fla. 564; contra,
State v. Hedrick, 272 Mo. 502, 199 S.W. 192, L.R.A.
1918C, 574; and it is synonymous with swine;
Rivers v. State, 10 Tex.App. 177.
HOGA. In old English law. A hill or mountain.
In old English, a how. Grene hoga, Grenehow.
Domesday; Spelman.
HOGASTER. In old English law. A sheep of the
second year. Fleta, lib. 2, c. 79, §§ 4, 12. A young
hog. Cowell.
HOGGUS, or HOGIETUS. A hog or swine. Cow-ell.
HOGHENHYNE. In Saxon law. A house-servant.
Any stranger who lodged three nights or more at
a man's house in a decennary was called "hog-
henhyne," and his host became responsible for his
acts as for those of his servant.
HOGSHEAD. A measure of a capacity containing
the fourth part of a tun, or sixty-three gallons.
Cowell. A large cast, of indefinite contents, but
usually containing from one hundred to one hun-
dred and forty gallons. Webster.
HOKE DAY (Heck Day). A day of feasting or
mirth kept formerly in England on the second or
third Tuesday after Easter; Cent. Dict.; or, as a
recent writer concludes, the first Sunday after Eas-
ter; 28 L.Q.Rev. 283, where it is suggested that
it was originally the great spring festival of the
pre-Roman British. See Hock-Tuesday Money,
supra.
HOLD, v. 1. To possess in virtue of a lawful
title; as in the expression, common in grants, "to
have and to hold," or in that applied to notes, "the
owner and holder." Chicago Home for Girls v.
Carr, 300 Ill. 478, 133 N.E. 344, 346.
2. To be the grantee or tenant of another; to
take or have an estate from another. Properly,
to have an estate on condition of paying rent, or
performing service.
3. To adjudge or decide, spoken of a court, par-
ticularly to declare the conclusion of law reached
by the court as to the legal effect of the facts dis-
closed.
4. To maintain or sustain; to be under the ne-
cessity or duty of sustaining or proving; as when
it is said that a party "holds the affirmative" or
negative of an issue in a cause.
5. To bind or obligate; to restrain or con-
strain; to keep in custody or under an obligation;
as in the phrases "hold to bail," "hold for court,"
"held and firmly bound," etc.
6. To administer; to conduct or preside at;
to convoke, open, and direct the operations of ;
as to hold a court, hold pleas, etc. Smith v.
People, 47 N.Y. 334.
7. To prosecute; to direct and bring about of-
ficially; to conduct according to law; as to hold
an election.
8. To possess; to occupy; to be in possession
and administration of; as to hold office.
9. To keep; to retain; to maintain possession
of or authority over. Dimock State Bank v. Boeh-
nen, 46 S.D. 50, 190 N.W. 485.
Hold over. To retain possession as tenant of
property leased, after the end of the term. To con-
tinue in possession of an office and continue to ex-
a
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HOMAGE
ercise its functions, after the end of the officer's
lawful term. State v. Simon, 20 Or. 365, 26 P. 174.
Hold pleas. To hear or try causes. 3 B1.Comm.
35, 298.
HOLD, n. In old law. Tenure. A word con-
stantly occurring in conjunction with others, as
freehold, leasehold, copyhold, etc., but rarely met
with in the separate form.
HOLDER. The holder of a bill of exchange, prom-
issory note, or check is the person who has legally
acquired possession of the same, by indorsement
or delivery, and who is entitled to receive payment
of the instrument. Crocker-Woolworth Nat. Bank
v. Nevada Bank, 139 Cal. 564, 73 P. 456, 63 L.R.A.
245, 96 Am.St.Rep. 169.
HOLDER IN DUE COURSE. A holder who has
taken a bill of exchange (check or note) complete
and regular on the face of it, under the following
conditions, namely: (a) That he became the hold-
er of it before it was overdue, and without notice
that it had been previously dishonored, if such
was the fact. (b) That he took the bill (check
or note) in good faith and for value, and that at
the time it was negotiated to him he had no notice
of any defect in the title of the person who nego-
tiated it. Uniform Negotiable Instrument Act, §
52; Peoples Loan & Finance Co. v. Ledbetter, 69
Ga.App. 729, 26 S.E.2d 671, 674.
HOLDES. Sax. In Saxon law. A military com-
mander. Spelman.
HOLDING. In English law. A piece of land held
under a lease or similar tenancy for agricultural,
pastoral, or similar purposes.
In Scotch law. The tenure or nature of the right
given by the superior to the vassal. Bell.
General
Holding over. See Hold, v.
Holding up the hand. In criminal practice. A
formality observed in the arraignment of pris-
oners. Held to be not absolutely necessary. 1 W.
Bl. 3, 4.
HOLDING COMPANY. A super-corporation
which owns or at least controls such a dominant in-
terest in one or more other corporations that it is
enabled to dictate their policies through voting
power; a corporation organized to hold the stock
of other corporations; any company, incorporated
or unincorporated, which is in a position to control
or materially influence the management of one or
more other companies by virtue, in part at least,
of its ownership or securities in the other com-
pany or companies. Cities Service Co. v. Koeneke,
137 Kan. 7, 20 P.2d 460, 469, 87 A.L.R. 16; Kelley,
Glover & Vale v. Heitman, 220 Ind. 625, 44 N.E.2d
981, 985.
HOLIDAY. A religious festival; a day set apart
for commemorating some important event in his-
tory; a day of exemption from labor. Webster;
Lamberti v. City of Stamford, 131 Conn. 396, 40
A.2d 190, 192. A day upon which the usual opera-
tions of business are suspended and the courts
closed, and, generally, no legal .process is served.
United Cigar Stores Co. v. Worth-Gyles Grain Co.,
212 Ill.App. 26.
Legal holiday. See Legal Holiday.
Public holiday. A legal holiday.
HOLM. An island in a river or the sea. Spel-
man. Plain grassy ground upon water sides or in
the water. Blount. Low ground intersected with
streams. Spelman.
HOLOGRAFO. In Spanish law. A holograph.
An instrument (particularly a will) wholly in the
handwriting of the person executing it; or which,
to be valid, must be so written by his own hand.
HOLOGRAPH. A will or deed written entirely
by the testator or grantor with his own hand.
Estate of Billings, 64 Cal. 427, 1 P. 701; In re
Irvine's Estate, 114 Mont. 577, 139 P.2d 489, 147
A.L.R. 882.
HOLT. Sax. In old English law. A wood or
grove. Spelman; Cowell; Co. Litt. 4b.
HOLY ORDERS. In ecclesiastical law. The or-
ders of bishops, (including archbishops,) priests,
and deacons in the Church of England. The Ro-
man canonists had the orders of bishop, (in which
the pope and archbishops were included,) priest,
deacon, subdeacon, psalmist, acolyte, exorcist,
reader, ostiarius. 3 Steph.Comm. 55, and note a.
HOMAGE. In feudal law. A service (or the cere-
mony of rendering it) which a tenant was bound
to perform to his lord on receiving investiture of
a fee, or succeeding to it as heir, in acknowledg-
ment of the tenure. It is described by Littleton
as the most honorable service of reverence that
a free tenant might do to his lord. The ceremony
was as follows: The tenant, being ungirt and with
bare head, knelt before the lord, the latter sitting,
and held his hands extended and joined between
the hands of the lord, and said: "I become your
man [home] from this day forward, of life and
limb and earthly honor, and to you will be faith-
ful and loyal, and bear you faith, for the tene-
ments that I claim to hold of you, saving the
faith that I owe unto our sovereign lord the king,
so help me God." The tenant then received a kiss
from the lord. Homage could be done only to the
lord himself. Litt. § 85; Glanv. lib. 9, c. 1; 1' Bract.
fols. 77b, 78-80; Wharton.
"Homage" is to be distinguished from "fealty," another
incident of feudalism, and which consisted in the solemn
oath of fidelity made by the vassal to the lord, whereas
homage was merely an acknowledgment of tenure. If the
homage was intended to include fealty, it was called "liege
homage ;" but otherwise it was called "simple homage."
Brown.
HOMAGE ANCESTRAL. In feudal law. Homage
was called by this name where a man and his
ancestors had immemorially held of another and
his ancestors by the service of homage, which
bound the lord to warrant the title, and also to
hold the tenant clear of all services to superior
Black's Law Dictionary Revised 4th Ed.-55
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HOMAGE
lords. If the tenant aliened in fee, his alienee was
a tenant by homage, but not by homage ancestral.
Litt. § 143; 2 Bl.Comm. 300.
HOMAGE JURY. A jury in a court-baron, con-
sisting of tenants that do homage, who are to
inquire and make presentments of the death of
tenants, surrenders, admittances, and the like.
HOMAGE LIEGE. That kind of homage which
was due to the sovereign alone as supreme lord,
and which was done without any saving or excep-
tion of the rights of other lords. Spelman.
HOMAGER. One who does or is bound to do
homage. Cowell.
HOMAGIO RESPECTUANDO. A writ to the es-
cheator commanding him to deliver seisin of lands
to the heir of the king's tenant, notwithstanding
his homage not done. Fitzh. Nat. Brev. 269.
HOMAGIUM. L. Lat. Homage (q. v.).
HOMAGIUM LIGIUM. Liege homage; that kind
of homage which was due to the sovereign alone
as supreme lord, and which was done without any
saving or exception of the rights of other lords.
Spelman. So called from ligando, (binding,) be-
cause it could not be renounced like other kinds
of homage.
HOMAGIUM, NON PER PROCURATORES NEC
PER LITERAS FIERI POTUIT, SED IN . PRO-
PRIA PERSONA TAM DOMINI QUAM TENEN-
TIS CAPI DEBET ET FIERI. Co. Litt. 68. Hom-
age cannot be done by proxy, nor by letters, but
must be paid and received in the proper person,
as well of the lord as the tenant.
HOMAGIUM PLANUM. In feudal law. Plain
homage; a species of homage which bound him
who did it to nothing more than fidelity, without
any obligation either of military service or atten-
dance in the courts of his superior. 1 Robertson's
Car. V., Appendix, note 8.
HOMAGIUM REDDERE. To renounce homage.
This was when a vassal made a solemn declara-
tion of disowning and defying his lord; for which
there was a set form and method prescribed by
the feudal laws. Bract. 1. 2, c. 35, § 35.
HQMAGIUM SIMPLEX. In feudal law. Simple
homage; that kind of homage which was merely
an acknowledgment of tenure, with a saving of
the rights of other lords. Harg. Co. Litt. note 18,
lib. 2.
HOMBRE BUENO. In Spanish law. The judge
of a district. Also an arbitrator chosen by the
parties to a suit. Also a man in good standing;
one who is competent to testify in a suit.
HOME. One's own dwelling place; the house in
which one lives; especially the house in which
one lives with his family; the habitual abode of
one's family; a dwelling house. Mann v. Haines,
146 Kan. 988, 73 P.2d 1066, 1072. That place in
which one in fact resides with the intention of res-
idence, or in which he has so resided, and with
regard to which he retains residence or to which
he intends to return. Dicey, Confl. L. 81-; Lang-
hammer v. Munter, 80 Md. 518, 31 A. 300, 27 L.R.
A. 330.
Home is not synonymous with domicil, as used in inter-
national law, but has a more restricted meaning, Inhabi-
tants of Jefferson v. Washington, 19 Me. 293.
Home includes place where one eats, bathes, reads, visits
and rests, as well as sleeping place, Jakeway v. John V.
Bauer Co., 218 N.Y.S. 193, 195, 218 App. Div. 302; and, as
used in deed or will may include care or right of mainte-
nance, Gwinn v. Hobbs, 83 Ind.App. 263, 141 N.E. 812, 818;
In re Burr's Estate, 144 N.Y.S. 926, 927, 83 Misc. 240.
HOME BREW. An intoxicating home made beer.
Jones v. State, 31 Ala.App. 378, 17 So.2d 545.
HOME OFFICE. The department of state through
which the English sovereign administers most of
the internal affairs of the kingdom, especially
the police, and communicates with the judicial
functionaries. As applied to a corporation, its prin-
cipal office within the state or country where it
was incorporated or formed.
HOME PORT. In maritime law, the home port
of a vessel is either the port where she is regis-
tered or enrolled, or the port at or nearest to
which her owner usually resides, or, if there be
more than one owner, the port at or nearest to
which the husband, or acting and managing owner
resides. Corn. v. Ayer & Lord Tie Co., 77 S.W. 688,
25 Ky.Law Rep. 1068. But for some purposes any
port where the owner happens at the time to be
with his vessel is its home port. Lever Transp.
Co. v. 011inger, 205 Ala. 22, 87 So. 597, 598.
HOME RULE. In constitutional and statutory
law, local self-government, or the right thereof.
Attorney General v. Lowrey, 131 Mich. 639, 92 N.
W. 289. In British politics, a programme or plan
(or a more or less definitely formulated demand)
for the right of local self-government for Ireland
under the lead of an Irish national parliament.
Lemaire v. Crockett, 116 Me. 263, 101 A. 302, 303.
HOME, or HOMME. L. Fr. Man; a man.
HOME NE SERA PUNY PUR SUER DES BRIEF-
ES EN COURT LE ROY, SOIT IL A DROIT OU A
TORT. A man shall not be punished for suing
out writs in the king's court, whether he be right
or wrong. 2 Inst. 228.
HOMESOKEN, HOMSOKEN. See Hamesecken.
HOMESTALL. A mansion-house. Dickinson v.
Mayer, 11 Heisk. (Tenn.) 521.
HOMESTEAD. The home, the house and the ad-
joining land where the head of the family dwells;
the home farm. The fixed residence of the head
of a family, with the land and buildings surround-
ing the main house. Oliver v. Snowden, 18 Fla.
825, 43 Am.Rep. 338.
Technically, and under the modern homestead
laws, an artificial estate in land, devised to pro-
tect the possession and enjoyment of the owner
against the claims of his creditors, by withdrawing
the property from execution and forced sale, so
long as the land is occupied as a home. Bucking-
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HOMICIDE
ham v. Buckingham, 81 Mich. 89, 45 N.W. 504. For
"Family," see that title.
Business Homestead. In Texas, a place or prop-
erty (distinct from the home of a family) used
and occupied by the head of a family as a place
to exercise his calling or business, which is exempt
by law. Spence v. State Nat. Bank of El Paso,
Tex.Civ.App., 294 S.W. 618, 623. A curious mis-
nomer, the word "homestead" in this phrase hav-
ing lost entirely its original meaning, and being
retained apparently only for the sake of its re-
mote and derivative association with the idea of
an exemption.
Homestead Corporations. Corporations organ-
ized for the purpose of acquiring lands in large
tracts, paying off incumbrances thereon, improv-
ing and subdividing them into homestead lots or
parcels, and distributing them among the share-
holders, and for the accumulation of a fund for
such purposes. Civ. Code Cal. § 557.
Homestead Entry. See Entry.
Homestead Exemption Laws. Laws passed in
most of the states allowing a householder or head
of a family to designate a house and land as his
homestead, and exempting the same homestead
from execution for his general debts.
Homestead Right. The personal right to the
beneficial, peaceful and uninterrupted use of the
home property free from claims of creditors. Hill
v. Fir§t Nat. Bank, 79 Fla. 391, 84 So. 190, 192, 20
A.L.R. 270.
Probate Homestead. A homestead set apart by
the court for the use of a surviving husband or
wife and the minor children out of the common
property, or out of the real estate belonging to
the deceased. In re Noah's Estate, 73 Cal. 590, 15
P. 290, 2 Am.St.Rep. 834.
Rural Homestead. See Urban Homestead, infra.
Urban Homestead. The residence or dwelling
place of a family in a city, claimed or set apart
as a homestead, including the principal house and
lot, and such lots as are used in connection there-
with, contributing to its enjoyment, comfort, and
convenience. Harris v. Matthews, 36 Tex. 424, 81
S.W. 1204. Nevertheless, property may be located
within the corporate limits of a town or city, and
still constitute a "rural homestead," or it may be
without the corporate limits, and constitute an
"urban homestead." Boerner v. Cicero Smith
Lumber Co., Tex.Civ.App., 293 S.W. 632, 636.
HOMICIDAL. Pertaining to homicide; relating
to homicide, impelling to homicide; as a homi-
cidal mania. (See Insanity.)
HOMICIDE. The killing of any human creature.
4 Bl.Comm. 177. The killing of one human being
by the act, procurement, or omission of another.
Pen. Code N. Y. § 179. The act of a human being
in taking away the life of another human being.
Sanders v. State, 113 Ga. 267, 38 S.E. 84,2. Hogan
v. State, 127 Tex.Cr.R. 182, 74 S.W.2d 988, 994.
Homicide is not necessarily a crime. It is a necessary
ingredient of the crimes of murder and manslaughter, but
there are other cases in which homicide may be committed
without criminal intent and without criminal consequences,
as, where it is done in the lawful execution of a judicial
sentence, in self-defense, or as the only possible means of
arresting an escaping felon. The term "homicide" is
neutral; while it describes the act, it pronounces no judg-
ment on its moral or legal quality. People v. Connors, 35
N.Y.S. 475, 13 Misc. 582.
Classification
Homicide is ordinarily classified as "justifiable," "excus-
able," and "felonious." For the definitions of these terms,
and of some other compound terms, see infra.
Culpable homicide
Described as a crime varying from the very lowest culpa-
bility, up to the very verge of murder. Lord Moncrieff,
Arkley, 72.
Excusable homicide
The killing of a human being, either by misadventure or
in self-defense. U. S. v. King, C.C.N.Y., 34 F. 306. The
name itself imports some fault, error, or omission, so triv-
ial, however, that the law excuses it from guilt of felony,
though in strictness it judges it deserving of some little
degree of punishment. 4 Bl.Comm. 182. It is of two sorts,
—either per infortunium, by misadventure, or se defen-
dendo, upon a sudden affray. Homicide per infortunium is
where a man, doing a lawful act, without any intention of
hurt, unfortunately kills another; but, if death ensue from
any unlawful act, the offense is manslaughter, and not mis-
adventure. Homicide se defendendo is where a man kills
another upon a sudden affray, merely in his own defense,
or in defense of his wife, child, parent, or servant, and not
from any vindictive feeling. 4 BI.Comm. 182.
Felonious homicide
The wrongful killing of a human being, of any age or
either sex, without justification or excuse in law; of which
offense there are two degrees, manslaughter and murder.
4 Bl.Comm. 190; 4 Steph.Comm. 111.
Homicide by misadventure
The accidental killing of another, where the slayer is
doing a lawful act, unaccompanied by any criminally care-
less or reckless conduct. Commonwealth v. Flax, 331 Pa.
145, 200 A. 632, 637. The same as "homicide per infort-
unium." State v. Disalvo, Del., 2 W.W.Harr. 232, 121 A.
661, 663.
Homicide by necessity
A species of justifiable homicide, because it arises from
some unavoidable necessity, without any will, intention, or
desire, and without any inadvertence or negligence in the
party killing, and therefore without any shadow of blame.
As, for instance, by virtue of such an office as obliges one,
in the execution of public justice, to put a malefactor to
death who has forfeited his life to the laws of his country.
But the law must require it, otherwise it is not justifiable.
4 Bl.Comm. 178.
Homicide per infortunium
Homicide by misfortune, or accidental homicide; as
where a man doing a lawful act, without any intention of
hurt, unfortunately kills another; a species of excusable
homicide. 4 BI.Comm. 182; 4 Steph.Comm. 101.
Homicide se defendendo
Homicide in self-defense; the killing of a person in self-
defense upon a sudden affray, where the slayer had no
other possible (or, at least, probable) means of escaping
from his assailant. 4 Bl.Comm. 183-186; 4 Steph.Comm.
103-105. A species of excusable homicide. Id.; 1 Russ.
Crimes, 660.
Justifiable homicide
Such as is committed intentionally, but without any evil
design, and under such circumstances of necessity or duty
as render the act proper, and relieve the party from any
shadow of blame; as where a sheriff lawfully executes a
sentence of death upon a malefactor, or where the killing
takes place in the endeavor to prevent the commission of
felony which could not be otherwise avoided. Moran v.
People, 163 Ill. 382, 45 N.E. 230. "Justifiable homicide" is
the taking of a human life under circumstances of justifica-
tion, as a matter of .right, such as self-defense or other
causes set out in the statute. Gaunce v. State, 22 Okl.Cr.
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HOMICIDE
361, 211 P. 517, 518. "Justifiable homicide" is the killing
of a human being by commandment of the law in execution
of public justice; by permission of the law in advance-
ment of public justice; in self-defense; or in defense of
habitation, property or person, against one who manifestly
intends or endeavors, by violence or surprise, to commit a
felony on either. Paramore v. State, 161 Ga. 166, 129 S.E.
772, 778.
Negligent homicide
In Texas, the act of causing the death of another by neg-
ligence and carelessness in the performance of a lawful act.
Anderson v. State, 27 Tex. App. 177, 11 S. W. 33, 3 L.R.A.
644, 11 Am.St.Rep. 189.
HOMICIDIUM, Lat. Homicide (q. v.).
Homicidium ex casu, homicide by accident.
Homicidium ex justitia, homicide in the adminis-
tration of justice, or in the execution of the sen-
tence of the law.
Homicidium ex necessitate, homicide from in-
evitable necessity, as for the protection of one's
person or property.
Homicidium ex voluntate, voluntary or willful
homicide. Bract. fols. 120b, 121.
HOMINATIO. The mustering of men; the doing
of homage.
HOMINE CAPTO IN WITHERNAMIUM. A writ
to take him that had taken any bond man or wo-
man, and led him or her out of the country, so
that he or she could not be replevied according
to law. Reg. Orig. 79.
HOMINE ELIGENDO. In old English law. A.
writ directed to a corporation, requiring the mem-
bers to make choice of a man to keep one part
of the seal appointed for statutes merchant, when
a former is dead, according to the statute of Ac-
ton Burnell. Reg. Orig. 178; Wharton.
HOMINE REPLEGIANDO. In English law. A
writ which lay to replevy a man out of prison,
or out of the custody of any private person, in
the same manner that chattels taken in distress
may be replevied. Brown.
HOMINES. Lat. In feudal law. Men; feudatory
tenants who claimed a privilege of having their
causes, etc., tried only in their lord's court.
Paroch. Antiq. 15.
HOMINES LIGII. Liege men; feudal tenants or
vassals, especially those who held immediately of
the sovereign. 1 Bl.Comm. 367.
HOMINUM CAUSA JUS CONSTITUTUM EST.
Law is established for the benefit of man.
HOMIPLAGIUM. In old English law. The maim-
ing of a man. Blount.
HOMME. Fr. Man; a man. The term "man"
as sometimes used may include a woman or wo-
men. This is expressly stated in Civ. Code La. art.
3556, No. 1.
HOMMES DE FIEF. Fr. In feudal law. Men
of the fief; feudal tenants; the peers in the lords'
courts. Montesq., Esprit des Lois, liv. 28, c. 27.
HOMMES FEODAUX. Fr. In feudal law. Feu-
dal tenants; the same with hommes de fief (q. v.).
Montesq., Esprit des Lois, liv. 28, c. 36.
HOMO. Lat. A man; a human being, male or
female; a vassal, or feudal tenant; a retainer,
dependent, or servant.
HOMO CHARTULARIUS. A slave manumitted
by charter.
HOMO COMMENDATUS. In feudal law. One
who surrendered himself into the power of anoth-
er for the sake of protection or support. See Com-
mendation.
HOMO ECCLESIASTICUS. A church vassal;
one who was bound to serve a church, especially
to do service of an agricultural character. Spel-
man.
HOMO EXERCITALIS. A man of the army, (ex-
ercitus;) a soldier.
HOMO FEODALIS. A vassal or tenant; one who
held a fee, (feodum,) or part of a fee. Spelman.
HOMO FISCALIS, or FISCALINUS. A servant
or vassal belonging to the treasury or fiscus.
HOMO FRANCUS. In old English law. A free-
man. A Frenchman.
HOMO INGENUUS. A freeman. A free and law-
ful man. A yeoman.
HOMO LIBER. A free man; a freeman lawfully
competent to act as juror. Ld. Raym. 417; Kebl.
563. An allodial proprietor, as distinguished from
a vassal or feudatory. This was the sense of the
term in the laws of the barbarous nations of Eur-
ope. Calvinus, Lex. Alode.
HOMO LIGIUS. A liege man; a subject; a king's
vassal. The vassal of a subject.
HOMO NOVUS. In feudal law. A new tenant or
vassal; one who was invested with a new fee.
Spelman. Also one who, after conviction of a
crime, had been pardoned, thus "making a new
man of him."
HOMO PERTINENS. In feudal law. A feudal
bondman or vassal; one who belonged to the
soil, (qui glebce adscribitur.)
HOMO POTEST ESSE HABILIS ET INHABILIS
DIVERSIS TEMPORIBUS. 5 Coke, 98. A man
may be capable and incapable at different times.
HOMO REGIUS. A king's vassal.
HOMO ROMANUS. A Roman. An appellation
given to the old inhabitants of Gaul and other
Roman provinces, and retained in the laws of the
barbarous nations. Spelman.
HOMO TRIUM LITTERARUM. A man of the
three letters; that is, the three letters, "f," "u,"
"r;" the Latin word fur meaning "thief."
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HONORARY
HOMO VOCABULUM EST NATURZE; PER-
SONA JURIS CIVILIS. Man (homo) is a term
of nature; person (persona) of civil law. Cal-
vin.
HOMOLOGACION. In Spanish law. The tacit
consent and approval inferred by law from the
omission of the parties, for the space of ten days,
to complain of the sentences of arbitrators, ap-
pointment of syndics, or assignees of insolvents,
settlements of successions, etc. Also the approval
given by the judge of certain acts and agreements
for the purpose of rendering them more binding
and executory. Escriche.
HOMOLOGARE. In the civil law. To confirm or
approve; to consent or assent; to confess. Cal-
vin.
HOMOLOGATE. In modern civil law. To ap-
prove; to confirm; as a court homologates a pro-
ceeding. See Homologation. Literally, to use the
same words with another; to say the like. Viales
v. Gardenier, 9 Mart. 0. S. (La.) 324. To assent
to what another says or writes.
HOMOLOGATION. In the Civil law. Approba-
tion; confirmation by a court of justice; a judg-
ment which orders the execution of some act.
Merl. Repert. The term is also used in Louisiana.
Hecker v. Brown, 104 La. 524, 29 So. 232.
In English law. An estoppel in pais. L.R. 3
App.Cas. 1026.
In Scotch law. An act by which a person ap-
proves of a deed. The effect of which is to render
that deed, though in itself defective, binding upon
the person by whom it is homologated. Bell.
Confirmation of a voidable deed.
HOMONYMIZE. A term applied in the civil law
to cases where a law was repeated, or laid down
in the same terms or to the same effect, more than
once. Cases of iteration and repetition. 2 Kent,
Comm. 489, note.
HONDHABEND. Sax. Having in hand. See
Handhabend.
HONESTE VIVERE. Lat. To live honorably,
creditably, or virtuously. One of the three general
precepts to which Justinian reduced the whole doc-
trine of the law, (Inst. 1, 1, 3; Bract. fols. 3, 3b,)
the others being alterum non lcedere, (not to in-
jure others,) and suum cuique tribuere, (to ren-
der to every man his due.)
HONESTUS. Lat. Of good character or stand-
ing. Coram duobus vel pluribus viris legalibus et
honestis, before two or more lawful and good men.
Bract. fol. 61.
HONI. See Hony.
HONOR, v. To accept a bill of exchange, or to
pay a note, check, or accepted bill, at maturity and
according to its tenor. Peterson v. Hubbard, 28
Mich. 199; Clarke v. Cock, 4 East, 72; Lucas v.
Groning, 7 Taunt. 168. .
HONOR, n. In English law, a seigniory of sev-
eral manors held under one baron or lord para-
mount. Also those dignities or privileges, degrees
of nobility, knighthood, and other titles, which
flow from the crown as the fountain of honor.
Wharton.
In American law. The customary title of cour-
tesy given to judges of the higher courts, and oc-
casionally to some other officers; as "his honor,"
"your honor."
Act of honor. When a bill has been protested,
and a third person wishes to take it up, or accept
it, for the "honor" (credit) of one or more of the
parties, the notary draws up an instrument, evi-
dencing the transaction, which is called by this
name.
Honor courts. Tribunals held within honors or
seigniories.
Office of honor. As used in constitutional and
statutory provisions, this term denotes a public
office of considerable dignity and importance, to
which important public trusts or interests are
confided, but which is not compensated by any
salary or fees, being thus contrasted with an "of-
fice of profit." See Dickson v. People, 17 Ill. 193.
HONORABLE. A title of courtesy given in Eng-
land to the younger children of earls, and the chil-
dren of viscounts and barons; and, collectively, to
the house of commons. In America, the word is
used as a title of courtesy for various classes of
officials, but without any clear lines of distinction.
HONORABLE DISCHARGE. A formal final judg-
ment passed by the government upon the entire
military record of a soldier, and an authoritative
declaration by the government that he has left
the service in a status of honor. Parker v. An-
derson, 112-Vt. 371, 25 A.2d 41, 44, Zearing v. John-
son, 10 Cal.App.2d 654, 52 P.2d 1019, 1020.
HONORARIUM. In the civil law. An honorary
or free gift; a gratuitous payment, as distinguish-
ed from hire or compensation for service; a law-
yer's or counsellor's fee. Dig. 50, 13, 1, 10-12.
A voluntary reward for that for which no remuneration
could be collected by law. Cunningham v. Commissioner of
Internal Revenue, C.C.A., 67 F.2d 205. A voluntary dona-
tion, in consideration of services which admit of no com-
pensation in money ; in particular, to advocates at law,
deemed to practice for honor or influence, and not for
fees. McDonald v. Napier, 14 Ga. 89.
HONORARIUM JUS. Lat. In Roman law. The
law of the praetors and the edicts of the cediles.
HONORARY. As applied to public offices and
other positions of responsibility or trust, this term
means either that the office or title is bestowed
upon the incumbent as a mark of honor or com-
pliment, without intending to charge him with
the active discharge of the duties of the place, or
else that he is to receive no salary or other com-
pensation in money, the honor conferred by the
incumbency of the office being his only reward.
Haswell v. New York, 81 N.Y. 258. In other con-
nections, it means attached to or growing out of
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HONORARY
some honor or dignity or honorable office, or else
it imports an obligation or duty growing out of
honor or trust only, as distinguished from legal
accountability.
HONORARY CANONS. Those without emolu-
ment. 3 & 4 Vict. c. 113, § 23.
HONORARY FEUDS. Titles of nobility, descend-
ible to the eldest son, in exclusion of all the rest.
2 BL Comm. 56.
HONORARY SERVICES. In feudal law. Special
services to be rendered to the king in person,
characteristic of the tenure by grand serjeanty;
such as to carry his banner, his sword, or the like
or to be his butler, champion, or other officer, at
his coronation. Litt. § 153; 2 Bl. Comm. 73.
HONORARY TRUSTEES. Trustees to preserve
contingent remainders, so called because they are
bound, in honor only, to decide on the most proper
and prudential course. Lewin, Trusts, 408.
HONORLS RESPECTUM. By reason of honor or
privilege. See Challenge.
HONTFONGENETHEF. In Saxon law. A thief
taken with hondhabend;  e., having the thing
stolen in his hand. Cowell.
HONY. L. Fr. Shame; evil; disgrace. Hony
soit qui mal y pense, evil be to him who evil
thinks. Preferably written honi. See Garter.
HOO. In old English law. A hill. Co. Litt. 5b.
HOOKLAND. Land plowed and sown every year.
HOOTCH. Intoxicating liquor illicitly distilled for
beverage purposes. State v. Cook, 318 Mo. 1233, 3
S.W.2d 365, 369.
HOPCON. In old English law. A valley. Cowell.
HOPE, n. In old English law. A valley. Co. Litt.
4b.
HOPE, v. As used in a will, this term is a preca-
tory word, rather than mandatory or dispositive,
but it is sufficient, in proper cases, to create a
trust in or in respect to the property spoken of.
Curd v. Field, 103 Ky. 293, 45 S.W. 92.
HOPPO. A Chinese term for a collector; an over-
seer of commerce.
HORA. Lat. An hour; the hour.
HORA AURORIE. In old English law. The morn-
ing bell, as ignitegium or coverfeu (curfew) was
the evening bell.
HORA NON EST MULTUM DE SUBSTANTIA
NEGOTII, LICET IN APPELLO DE EA ALI-
QUANDO FIAT MENTIO. The hour is not of
much consequence as to the substance of busi-
ness, although in appeal it is sometimes men-
tioned. 1 Bulst. 82.
RORIE JURIDICE or JUDICLE. Hours during
which the judges sat in court to attend to judicial
business.
HORCA. In Spanish law. A gallows; the pun-
ishment of hanging. White, New Recop. b. 2, tit.
19, c. 4,§1.
HORDA. In old records. A cow in calf.
HORDERA. In old English law. A treasurer.
Du Cange.
HORDERIUM. In old English law. A hoard; a
treasure, or repository. Cowell.
HORDEUM. In old records. Barley. Hordeum
palmale, beer barley, as distinguished from com-
mon barley, which was called "hordeum quad-
ragesimale." Blount.
HORIZONTAL PRICE-FIXING CONTRACTS.
Contracts between producers or between whole-
salers or between retailers as to sale or resale
prices. Seagram-Distillers Corporation v. Old
Dearborn Distributing Co., 363 Ill. 610, 2 N.E.2d
940, 942.
HORN. In old Scotch practice. A kind of trum-
pet used in denouncing contumacious persons reb-
els and outlaws, which was done with three blasts
of the horn by the king's sergeant. This was
called "putting to the horn;" and the party so de-
nounced was said to be "at the horn." Bell. See
Horning.
HORN-BOOK. A primer; a book explaining the
rudiments of any science or branch of knowledge.
The phrase "horn-book law" is a colloquial desig-
nation of the rudiments or most familiar princi-
ples of law.
HORN TENURE. In old English law. Tenure by
cornage; that is, by the service of winding a horn
when the Scots or other enemies entered the land,
in order to warn the king's subjects. This was a
species of grand serjeanty. Litt. § 156; 2 Bl.
Comm. 74.
HORN WITH HORN, or HORN UNDER HORN.
The promiscuous feeding of bulls and cows or all
horned beasts that are allowed to run together
upon the same common. Spelman.
HORNER. A narcotic addict who inhales or
snuffs heroin rather than one who takes it by
injection.  People v. Carner, 255 P.2d 835, 836,
117 C.A.2d 362.
HORNGELD. Sax. In old English law. A tax
within a forest, paid for horned beasts. Cowell;
Blount.
HORNING. In Scotch law. "Letters of horning"
is the name given to a judicial process issuing on
the decree of a court, by which the debtor is sum-
moned to perform his obligation in terms of the
decree, the consequence of his failure to do so
being liability to arrest and imprisonment. It was
anciently the custom to proclaim a debtor who
had failed to obey such process a rebel or outlaw,
which was done by three blasts of the horn by the
king's sergeant in a public place. This was called
"putting to the horn," whence the name.
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HOSTES
HORNSWOGGLE. To triumph over; overcome;
beat; bedevil. U. S. Fidelity & Guaranty Co. v.
Rochester, Tex.Civ.App., 281 S.W. 306, 314.
HORREUM. Lat. A place for keeping grain; a
granary. A place for keeping fruits, wines, and
goods generally; a store-house. Calvin.; Bract.
fol. 48.
HORS. L. Fr. Out; out of; without.
HORS DE SON FEE. Out of his fee. In old
pleading, this was the name of a plea in an action
for rent or services, by which the defendant al-
leged that the land in question was out of the com-
pass of the plaintiff's fee. Mather v. Wood, 12 Pa.
Co. Ct. R. 4.
HORS PRIS. Except. Literally translated by the
Scotch "out taken."
HORS WEALH. In old English law. The wealh,
or Briton who had care of the king's horses.
HORS WEARD. In old English law. A service or
corvëe, consisting in watching the horses of the
lord. Anc. Inst. Eng.
HORSE. An animal of the genus equus and spe-
cies caballus. In a narrow and strict sense, the
term is applied only to the male, and only to
males of four years old or thereabouts, younger
horses being called "colts." But even in this sense
the term includes both stallions and geldings. In
a wider sense, and as generally used in statutes,
the word is taken as nomen generalissimum, and
includes not only horses strictly so called, but
also colts, mares and fillies, and mules and asses.
Pullen v. State, 11 Tex.App. 91; Ex parte Hancock,
61 Okl.Cr. 167, 66 P.2d 954, 955.
HORSE GUARDS. The directing power of the
military forces of the kingdom of Great Britain.
The commander in chief, or general commanding
the forces, is at the head of this department. It is
subordinate to the war office, but the relations
between them are complicated. Wharton.
HORSE POWER. A unit of power capable of
lifting 33,000 pounds a foot a minute. Foltz Gro-
cery & Baking Co. v. Brown, 111 Ohio St. 646; 146
N.E. 97, 99.
Net Horse Power
Actually available horse power as distinguished
from theoretical horse power. Kimberly-Clark Co.
v. Patten Paper Co., 153 Wis. 69, 140 N.W. 1066,
1073.
HORTUS. Lat. In the civil law. A garden. Dig.
32, 91, 5.
HOSPES. Lat. A guest. 8 Coke, 32.
HOSPES GENERAL'S. A great chamberlain.
HOSPITAL. An institution for the reception and
care of sick, wounded, infirm, or aged persons;
generally incorporated, and then of the class of
corporations called "eleemosynary" or "charita-
ble." Also the building used for such purpose.
In re Curtiss (Sur.) 7 N.Y.S. 207; Noble v. First
Nat. Bank of Anniston, 241 Ala. 85, 1 So.2d 289,
290.
Base Hospital
One established at a definite military or naval
base of operations.
Field Hospital
One set up near the field of operations. It is
generally equipped to care for emergency cases
and can be moved readily.
Public Hospitals
Hospitals which appeal to the public for volun-
tary contributions, or those which are supported
by compulsory contributions in the form of a rate.
HOSPITALIZATION. Placing a sick person in a
hospital. Edwards v. West Texas Hospital, Tex.
Civ.App., 89 S.W.2d 801, 815.
HOSPITALLERS. The knights of a religious or-
der, so called because they built a hospital at
Jerusalem, wherein pilgrims were received. All
their lands and goods in England were given to
the sovereign by 32 Hen. VIII. c. 24.
HOSPITATOR. A host or entertainer.
Hospitator communis. An innkeeper. 8 Coke,
32.
Hospitator magnus. The marshal of a camp.
HOSPITIA. Inns. Hospitia communia, common
inns. Reg. Orig. 105. Hospitia curice, inns of
court. Hospitia cancellarice, inns of chancery.
Crabb, Eng. Law, 428, 429; 4 Reeve, Eng. Law,
120.
HOSPITICIDE. One that kills his guest or host.
HOSPITIUM. An inn; a household. Cromwell
v. Stephens, 2 Daly (N.Y.) 17.
HOSPODAR. A Turkish governor in Moldavia or
Wallachia.
HOST. L. Fr. An army. Britt. c. 22. A mili-
tary expedition; war. Kelham.
HOSTAGE. A person who is given into the pos-
session of the enemy, in a public war, his freedom
(or life) to stand as security for the performance
of some contract or promise made by the bellig-
erent power giving the hostage with the other.
HOSTELAGIUM. In old records. A right to re-
ceive lodging and entertainment, anciently re-
served by lords in the houses of their tenants.
Cowell.
HOSTELER. See Hostler.
HOSTES. Lat. Enemies. Hostes humani gen-
eris, enemies of the human race; i. e., pirates.
HOSTES SUNT QUI NOBIS VEL QUIBUS NOS
BELLUM DECERNIMUS; CIETERI PROM-
TORES VEL PRIEDONES SUNT. 7 Coke, 24.
Enemies are those with whom we declare war, or
who declare it against us; all others are traitors
or pirates.
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HOSTIA
HOSTIA. In old records. The hostbread, or con-
secrated wafer, in the eucharist. Cowell.
HOSTICIDE. One who kills an enemy.
HOSTILARIA, HOSPITALARIA. A place or
room in religious houses used for the reception of
guests and strangers.
HOSTILE. Having the character of an enemy;
standing in the relation of an enemy. 1 Kent,
Comm. c. 4.
HOSTILE EMBARGO. One laid upon the vessels
of an actual or prospective enemy.
HOSTILE FIRE. One which becomes uncontrol-
lable or breaks out from where it was intended to
be and becomes hostile element. Swerling v. Con-
necticut Fire Ins. Co., 55 R.I. 252, 180 A. 343. Re-
liance Ins. Co. v. Naman, 6 S.W.2d 743, 744, 118
Tex. 21.
HOSTILE POSSESSION. See Possession.
HOSTILE WITNESS. A witness who manifests
so much hostility or prejudice under examination
in chief that the party who has called him, or his
representative, is allowed to cross-examine him,
i. e., to treat him as though he had been called by
the opposite party. Wharton.
HOSTILITY. In the law of nations. A state of
open war. "At the breaking out of hostility." An
act of open war. "When hostilities have com-
menced." 1 Kent, Comm. 56, 60.
A hostile character. "Hostility may attach only
to the person." 1 Kent, Comm. 56.
HOSTLER. In Norman and old English law, this
was the title of the officer in a monastery charged
with the entertainment of guests. It was also ap-
plied (until about the time of Queen Elizabeth) to
an innkeeper, and afterwards, when the keeping of
horses at livery became a distinct occupation, to
the keeper of a livery stable, and then (under the
modern form "ostler") to the groom in charge of
the stables of an inn. Cromwell v. Stephens, 2
Daly (N.Y.) 20.
In the language of railroading, an "ostler" or
"hostler" at a roundhouse is one whose duty it is
to receive locomotives as they come in from the
road, care for them in the roundhouse, and have
them cleaned and ready for departure when want-
ed. Louisville and N. R. Co. v. McCoy, 270 Ky. 603,
110 S.W.2d 433, 435.
HOTCHPOT. The blending and mixing property
belonging to different persons, in order to divide
it equally. 2 Bl, Comm. 190.
Anciently applied to the mixing and blending of lands
given to one daughter in frank marriage, with those
descending to her and her sisters in fee-simple, for the pur-
pose of dividing the whole equally among them; without
which the daughter who held in frank marriage could
have no share in the lands in fee-simple. Litt. §§ 267, 268;
Co. Litt. 177a; 2 Bl.Comm. 190.
Hotchpot, or the putting in hotchpot, is applied in mod-
ern law to the throwing the amount of an advancement
made to a particular child, in real or personal estate, into
the common stock, for the purpose of a more equal divi-
sion, or of equalizing the shares of all the children. 2
Kent, Comm. 421, 422; In re Howlett's Estate, 275 Mich.
596, 267 N.W. 743, 744. This answers to or resembles the
collatio bonorum, or collation of the civil law. Law v.
Smith, 2 R.I. 249; In re Farmers' Loan & Trust Co., 168
N.Y.S. 952, 959, 181 App. Div, 642.
HOTEL. An inn; a public house or tavern; a
house which is held out to well-behaved members
of the traveling public, who are willing to pay rea-
sonable rates for accommodations, as a place
where they will be received and entertained as
guests for compensation, and will be furnished
with food, drink, and lodging, and everything
which they have occasion for while on their way.
City of St. Louis v. Siegrist, 46 Mo. 593; People v.
Gold, Sp.Sess., 6 N.Y.S.2d 264, 267. For "Family
Hotel", see that title.
Synonyms
In law, there is no difference whatever between the terms
"hotel," "inn," and "tavern," except that in some states a
statutory definition has been given to the word "hotel,"
especially with reference to the grant of licenses to sell
liquor, as, that it shall contain a certain number of sepa-
rate rooms for the entertainment of guests, or the like.
But none of the three terms mentioned will include a
boarding house (because that is a place kept for the enter-
tainment of permanent boarders, while a hotel or inn is
for travelers and transient guests), nor a lodging house
(because the keeper thereof does not furnish food for
guests, which is one of the requisites of a hotel or inn), nor
a restaurant or eating-house, which furnishes food only
and not lodging. Martin v. State Ins. Co., 44 N.J.Law, 485,
43 Am.Rep. 397; Debenham v. Short, Tex.Civ.App., 199
S. W. 1147.
HOT-WATER ORDEAL. In old English law.
This was a test, in cases of accusation, by hot
water; the party accused and suspected being ap-
pointed by the judge to put his arms up to the
elbows in seething hot water, which, after sundry
prayers and invocations, he did, and was, by the
effect which followed, judged guilty or innocent.
Wharton.
HOUGH. A valley. Co. Litt. 5b. See Haugh.
HOUR. The twenty-fourth part of a natural day;
sixty minutes of time.
Hour of cause. In Scotch practice. The hour
when a court is met. 3 How. State Tr. 603.
Office hours. See Office.
HOUSE. A dwelling; a building designed for the
habitation and residence of men. Satterthwait v.
Gibbs, 288 Pa. 428, 135 A. 862, 863.
"House" means, presumptively, a dwelling house; a
building divided into floors and apartments, with four
walls, a roof, and doors and chimneys; but it does not
necessarily mean precisely this. Surman v. Darley, 14
Mees. & W. 183. It may mean any sort of structure or part
thereof, whether used for human habitation or not. Dennis
v. State, 71 Tex.Cr.R. 162, 158 S.W. 1008; Walker v. Ter-
rell, Tex.Civ.App., 189 S.W. 75, 78.
"House" is not synonymous with "dwelling house."
While the former is used in a broader and more compre-
hensive sense than the latter, it has a narrower and more
restricted meaning than the word "building." State v.
Garlty, 46 N.H. 61.
A legislative assembly, or (where the bicameral system
obtains) one of the two branches of the legislature; as the
-house of lords," "house of representatives." Also a
quorum of a legislative body. State of Ohio v. Cox, D.C.
Ohio, 257 F. 334, 346.
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HOUSEHOLD
The name "house" is also given to some collec-
tions of men other than legislative bodies, to some
public institutions, and (colloquially) to mercan-
tile firms or joint-stock companies.
Ancient House. One which has stood long
enough to acquire an easement of support against
the adjoining land or building. 3 Kent Comm. 437.
Bawdy House. A brothel; a house maintained
for purposes of prostitution.
Beer House. See Beer.
Boarding House. See that title.
Duplex House.  A double house. Kenwood
Land Co. v. Hancock Inv. Co., 169 Mo.App. 715,
155 S.W. 861, 864.
Dwelling House. See that title.
House-bote. A species of estovers, belonging to
a tenant for life or years, consisting in the right to
take from the woods of the lessor or owner such
timber as may be necessary for making repairs
upon the house. Co.Litt. 41b.
House-burning. See Arson.
House-duty. A tax on inhabited houses imposed
by 14 & 15 Vict. c. 36, in lieu of window-duty, which
was abolished.
House of Commons. One of the constituent
houses of the British parliament, composed of
representatives of the counties, cities, and bor-
oughs. The lower house, so called because the
commons of the realm, that is, the knights, citi-
zens, and burgesses returned to parliament, repre-
senting the whole body of the commons, sit there.
House of Correction. A reformatory. A place
for the imprisonment of juvenile offenders, or
those who have committed crimes of lesser magni-
tude. Ex parte Moon Fook, 72 Cal. 10, 12 P. 804.
House of Delegates. The official title of the
lower branch of the legislative assembly of sev-
eral of the American states, e. g., Maryland and
Virginia.
House of Ill Fame. A bawdy house; a brothel;
a dwelling allowed by its chief occupant to be
used as a resort of persons desiring unlawful
sexual intercourse. People v. Lee, 307 Mich. 743,
12 N.W.2d 418, 421.
The authorities are conflicting as to whether and in what
circumstances a house used solely by one woman for illicit
intercourse is a house of ill fame. Fisher v. City of Para-
gould, 127 Ark. 268, 192 S.W. 219, 220.
House of Keys. The name of the lower branch
of the legislative assembly or parliament of the
Isle of Man, consisting of twenty-four representa-
tives chosen by popular election.
House of Lords. The upper chamber of the
British parliament. It comprises the archbishops
and bishops, (called "Lords Spiritual,") the Eng-
lish peers sitting by virtue of hereditary right, six'-
teen Scotch peers elected to represent the Scotch
peerage under the act of union, and twenty-eight
Irish peers elected under similar provisions. The
house of lords, as a judicial body, has ultimate
appellate jurisdiction, and may sit as a court for
the trial of impeachments.
House of Refuge. A prison for juvenile delin-
quents. A house of correction or reformatory.
House of Representatives. The name of the
body forming the more popular and numerous
branch of the congress of the United States; also
of the similar branch in many of the state legis-
latures.
House of Worship. A building or place set
apart for and devoted to the holding of religious
services or exercises or public worship; a church
or chapel or place similarly used. Old South Soc.
v. Boston, 127 Mass. 379.
Inner House, Outer House. See those titles.
Mansion House. See Mansion.
Public House. An inn or tavern; a house for the
entertainment of the public, or for the entertain-
ment of all who come lawfully and pay regularly.
Whatley v. State, 68 So. 491, 492, 12 Ala.App. 201.
A place of public resort, particularly for purposes
of drinking or gaming. In a more general sense,
any house made public by the occupation carried
on in it and the implied invitation to the public to
enter, such as inns, taverns, drinking saloons,
gambling houses, and perhaps also shops and
stores. Cole v. State, 28 Tex.App. 536, 13 S.W.
859, 19 Am.St.Rep. 856.
Tippling House. A place where intoxicating liq-
uors are sold in drams or small quantities to be
drunk on the premises, and where men resort for
drinking purposes.
HOUSEAGE. A fee paid for housing goods by a
carrier, or at a wharf, etc.
HOUSEBREAKING. In criminal law. Breaking
and entering a dwelling-house with intent to com-
mit any felony therein. If done by night, it comes
under the definition of "burglary."
Under statute housebreaking may consist in
"breaking out" of a house after access had been
gained without breaking. Lawson v. Common-
wealth, 160 Ky. 180, 169 S.W. 587, 588, L.R.A. 1915
D, 972.
HOUSEHOLD, adj. Belonging to the house and
family; domestic. Webster.
HOUSEHOLD, n. A family living together.
Schurler v. Industrial Commission, 86 Utah, 284,
43 P.2d 696, 699, 100 A.L.R. 1085. Those who dwell
under the same roof and compose a family. Web-
ster. A man's family living together constitutes
his household, though he may have gone to an-
other state.
For "Family," see that title.
Synonymous with "family," but broader, in that It
includes servants or attendants; all who are under one
domestic head. Engebretson v. Austvold, 199 Minn. 399,
271 N.W. 809, 810.
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HOUSEHOLD
HOUSEHOLD FURNITURE. See Furniture.
HOUSEHOLD SERVANTS AND HOUSEHOLD
EMPLOYEES. Those employed in the mansion
house, and do not embrace those who work out
of doors upon the home place, and not regularly
employed to do work within the curtilage. Raines
v. Osborne, 184 N.C. 599, 114 S.E. 849.
HOUSEHOLD STUFF. This phrase, in a will,
includes everything which may be used for the
convenience of the house, as tables, chairs, bed-
ding, and the like. But apparel, books, weapons,
tools for artificers, cattle, victuals, and choses in
action will not pass by those words, unless the
context of the will clearly show a contrary in-
tention. 1 Rop. Leg. 206. See Appeal of Hoopes,
60 Pa. 227, 100 Am.Dec. 562.
HOUSEHOLDER. The occupier of a house.
Brande. More correctly, one who keeps house
with his family; the head or master of a family.
Webster; 18 Johns. 302. Berghean v. Berghean,
113 Ind.App. 412, 48 N.E.2d 1001, 1003. One who
has a household; the head of a household. Gom-
ez v. State, 75 Tex.Cr.R. 239, 170 S.W. 711, 713.
HOUSEKEEPER. One who is in actual posses-
sion of and who occupies a house, as distinguished
from a "boarder," "lodger," or "guest." See Bell
v. Keach, 80 Ky. 45. Head of a family. January
v. Marler, 274 Mo. 543, 203 S.W. 817.
HOUSE LAW. A peculiar type of regulatory code,
now largely obsolete, promulgated by the head
of a royal or noble family, or of a prominent pri-
vate family, governing intra-family relationships
and acts with respect to policies of marriage, dis-
position of property, inheritance and the like.
Usually these codes had no legal authority but
were enforced within the family by sufficient
personal and economic sanctions.
HOVEL. A place used by husbandmen to set
their plows, carts, and other farming utensils out
of the rain and sun. A shed; a cottage; a mean
house.
HOWE. In old English law. A hill. Co. Litt. 5b.
HOWGH. See Haugh.
HOY. A small coasting vessel, usually sloop-
rigged, used in conveying passengers and goods
from place to place, or as a tender to larger ves-
sels in port. Webster.
HOYMAN. The master or captain of a hoy.
HUCKSTER. A petty dealer and retailer of small
articles of provisions, particularly farm and gar-
den produce; a hawker; peddler. Hughes v.
City of Detroit, 217 Mich. 567, 187 N.W. 530, 531.
HUCUSQUE. In old pleading. Hitherto. 2 Mod.
24.
RUDE-GELD. In old English law. An acquit-
tance for an assault upon a trespassing servant.
Supposed to be a mistake or misprint in Fleta for
"hinegeld." Fleta, lib. 1, c. 47, § 20. Also the price
of one's skin, or the money paid by a servant to
save himself from a whipping. Du Cange.
HUE AND CRY. In old English law. A loud
outcry with which felons (such as robbers, burg-
lars, and murderers) were anciently pursued, and
which all who heard it were bound to take up, and
join in the pursuit, until the malefactor was taken.
Bract. fols. 115b, 124; 4 Bl. Comm. 293. A written
proclamation issued on the escape of a felon from
prison, requiring all officers and people to assist
in retaking him. 3 How. State Tr. 386.
HUEBRAS. In Spanish law. A measure of land
equal to as much as a yoke of oxen can plow in
one day. 2 White, Recop. (38), 49; Strother v.
Lucas, 12 Pet. 443, 9 L.Ed. 1137.
HUI. Under the law of Hawaii. An association
of persons in the ownership of land, members of
which ordinarily hold the property as tenants
in common. De Fries v. Scott, C.C.A.Hawaii, 268
F. 952, 959.
HUIS. L. Fr. A door. "Al huis del esglise," at
the door of the church. Bendloe, 133.
HUISSERIUM. A ship used to transport horses.
Also termed "uffer."
HUISSIERS. In French law. Marshals; ushers;
process-servers; sheriff's officers. Ministerial of-
ficers attached to the courts, to effect legal service
of process required by law in actions, to issue exe-
cutions, etc., and to maintain order during the
sitting of the courts.
HULKA. In old records. A hulk or small vessel.
Cowell.
HULKS. A place of punishment for convicts in
England, abandoned with the reform in the pun-
ishment of convicts which began in England about
1840.
HULL. In a statute, 33 U.S.C.A. § 319, requiring
ships of a certain size to carry lights, etc., it in-
cludes the forecastle deck. The Europe, 190 Fed.
475, 111 C.C.A. 307.
HULLUS. In old records. A hill. 2 Mon. Angl.
292; Cowell.
HUMAGIUM. A moist place. Mon. Angl.
HUMANITARIAN DOCTRINE. Another name
for the doctrine of the last clear chance. See
Last.
HUNDRED. Under the Saxon organization of
England, each county or shire comprised an in-
definite number of hundreds, each hundred con-
taining ten tithings, or groups of ten families of
freeholders or frankpledges. The hundred was
governed by a high constable, and had its own
court; but its most remarkable feature was the
corporate responsibility of the whole for the
crimes or defaults of the individual members. The
introduction of this plan of organization into Eng-
land is commonly ascribed to Alfred, but the idea,
as well of the collective liability as of the division,
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HUSBAND
was probably known to the ancient German peo-
ples, as we find the same thing established in the
Frankish kingdom under Clothaire, and in Den-
mark. See 1 Bl. Comm. 115; 4 Bl. Comm. 411.
HUNDRED COURT. In English law. A larger
court-baron, being held for all the inhabitants of
a particular hundred, instead of a manor. The
free suitors are the judges, and the steward the
registrar, as in the case of a court-baron. It is
not a court of record, and resembles a court-baron
in all respects except that in point of territory it
is of greater jurisdiction. These courts have long
since fallen into desuetude. 3 Bl. Comm. 34, 35;
3 Steph. Comm. 394, 395.
HUNDRED GEMOTE. Among the Saxons, a
meeting or court of the freeholders of a hundred,
which assembled, originally, twelve times a year,
and possessed civil and criminal jurisdiction and
ecclesiastical powers. 1 Reeve, Eng. Law, 7.
HUNDRED LAGH. The law of the hundred, or
hundred court; liability to attend the hundred
court. Spelman.
HUNDRED PENNY. In old English law. A tax
collected from the hundred, by the sheriff or lord
of the hundred.
HUNDRED ROLLS. Rolls embodying the result
of investigations made by the commissioners in
1274 as to usurpations of the royal rights. 1
Holdsw. Hist. E. L. 48.
HUNDRED SECTA. The performance of suit
and service at the hundred court.
HUNDRED SETENA. In Saxon law. The dwell-
ers or inhabitants of a hundred. Cowell; Blount.
Spelman suggests the reading of sceatena from
Sax. "sceat," a tax.
HUNDRED—FECTA. The performance of suit
and service at the hundred court. Wharton.
HUNDREDARIUS. In old English law. A hun-
dredary or hundredor. A name given to the chief
officer of a hundred, as well as to the freeholders
who composed it. Spel. voc. "Hundredus."
HUNDREDARY. The chief or presiding officer of
a hundred.
HUNDREDES EARLpOR, or HUNDREDES
MAN. The presiding officer in the hundred court.
Anc. Inst. Eng.
HUNDREDORS. In English law. The inhabi-
tants or freeholders of a hundred, anciently the
suitors or judges of the hundred court. Persons
impaneled or fit to be impaneled upon juries,
dwelling within the hundred where the cause of
action arose. Cromp. Jur. 217. It was formerly
necessary to have some of these upon every panel
of jurors. 3 Bl. Comm. 359, 360; 4 Steph. Comm.
370. The term "hundredor" was also used to sig-
nify the officer who had the jurisdiction of a hun-
dred, and held the hundred court, and sometimes
the bailiff of a hundred. Termes de la Ley; Cow-
?1.
HUNDREDWEIGHT. A denomination of weight
containing, according to the English system, 112
pounds; but in this country, generally, it consists
of 100 pounds avoirdupois.
HUNG JURY. A jury so irreconcilably divided
in opinion that they cannot agree upon any ver-
dict.
HUNGER. The desire to eat. Hunger is no ex-
cuse for larceny; 1 Hale, Pl. Cr. 54; 4 Bla. Comm.
31. As to death from hunger, see Death.
HUNTING. The act of pursuing and taking wild
animals; the chase. Commonwealth v. Bailey, 97
S.E. 774, 124 Va. 800. Robinson v. State, 76 S.E.
1061, 11 Ga.App. 847.
HURDEREFERST. A domestic; one of a family.
HURDLE. In English criminal law. A kind of
sledge, on which convicted felons were drawn to
the place of execution. See Draw, v.
HURRICANE. A storm of great violence or in-
tensity, of which the particular characteristic is
the high velocity of the wind. There is naturally
no exact measure to distinguish between an or-
dinary storm and a hurricane, but the wind should
reach a velocity of at least 50 or 60 miles an hour
to be called by the latter name, or, as expressed
in some of the cases, it should be sufficient to
"throw down buildings." A hurricane is properly
a circular storm in the nature of a cyclone. Pel-
ican Ins. Co. v. Troy Co-op. Ass'n, 13 S.W. 980, 77
Tex. 225; Queen Ins. Co. v. Hudnut Co., 8 Ind.App.
22, 35 N.E. 397; George A. Hoagland and Co. v.
Insurance Co. of North America, 131 Neb. 105,
267 N.W. 239, 241.
HURST, HYRST, HERST, or HIRST. A wood or
grove of trees. Co. Litt. 4b.
HURT. In such phrases as "to the hurt or annoy-
ance of another," or "hurt, molested, or restrained
in his person or estate," this word is not restricted
to physical injuries, but includes also mental pain,
as well as discomfort or annoyance. Thurston v.
Whitney, 2 Cush., Mass., 110.
HURTARDUS, or HURTUS. A ram or wether.
HURTO. In Spanish law. Theft. White, New
Recop. b. 2, tit. 20.
HUSBAND. A married man; one who has a law-
ful wife living. The correlative of "wife." People
v. Snyder, 353 Ill. 184, 187 N.E. 158, 160, 88 A.L.R.
1012.
Etymologically, the word signified the "house
bond;" the man who, according to Saxon ideas
and institutions, held around him the family, for
whom he was in law responsible.
HUSBAND AND WIFE. One of the great do-
mestic relationships; being that of a man and
woman lawfully joined in marriage, by which, at
common law, the legal existence of a wife is in-
corporated with that of her husband.
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HUSBAND
• HUSBAND LAND. In old Scotch law. A quantity
of land containing commonly six acres. Skene.
HUSBAND OF A SHIP. See, Ship's Husband.
HUSBANDMAN. A farmer; a cultivator or tiller
of the ground. The word "farmer" is colloquially
used as synonymous with "husbandman," but or-
iginally meant a tenant who cultivates leased
ground.
HUSBANDRIA. In old English law. Husbandry.
Dyer, (Fr. Ed.) 35b.
HUSBANDRY. Agriculture; cultivation of the
soil for food; farming, in the sense of operating
land to raise provisions. Simons v. Lovell, 7
Heisk. (Tenn.) 516; State ex rel. Boynton v. Wheat
Farming Co., 137 Kan. 697, 22 P.2d 1093.
HUSBREC• In Saxon law. The crime of house-
breaking or burglary. Crabb, Eng. Law, 59, 308.
HUSCARLE. In old English law. A house serv-
ant or domestic; a man of the household. Spel-
man. A king's vassal, thane, or baron; an earl's
man or vassal. A term of frequent occurrence in
Domesday Book.
HUSFASTNE. He who holds house and land.
Bract. L 3, t. 2, c. 10.
HUSGABLUM. In old records. House rent; or
a tax or tribute laid upon a house. Cowell;
Blount.
HUSH-MONEY. A colloquial expression to desig-
nate a bribe to hinder information; pay to secure
silence.
HUSTINGS. Council; court; tribunal. Appar-
ently so called from being held within a building,
at a time when other courts were held in the open
air. It was a local court. The county court in the
city of London bore this name. There were hust-
ings at York, Winchester, Lincoln, and in other
places similar to the London hustings. Also the
raised place from which candidates for seats in
parliament address the constituency, on the occa-
sion of their nomination. Wharton.
In Virginia, some of the local courts are called "hust-
ings," as in the city of Richmond. Smith v. Corn., 6 Grat.
Va., 696. The municipal courts established (in Virginia) in
any city of over, 5,000 inhabitants were at one time called
hustings courts. Cent. Dict.
HUTESIUM ET CLAMOR. Hue and cry. See Hue
and Cry.
HUTILAN. Taxes. Mon. Angl. 1. 586.
HWATA, HVVATUNG. In old English law. Au-
gury; divination.
HYBERNAGIUM. In old English law. The sea-
son for sowing winter grain, between Michael-
mas and Christmas. The land on which such
grain was sown. The grain itself; winter grain
or winter corn. Cowell.
HYBRID. A mongrel; an animal formed of the
union of different species, or different genera;
also (metaphorically) a human being born of the
union of persons of different races.
HYD. In old English law. Hide; skin. A mea-
sure of land, containing according to some, a hun-
dred acres, which quantity is also assigned to it in
the Dialogus de Scaccario. It seems, however,
that the hide varied in different parts of the king-
dom.
HYDAGE. See Hidage.
HYDROMETER. An instrument for measuring
the density of fluids. Being immersed in fluids, as
in water, brine, beer, brandy, etc., it determines
the proportion of their density, or their specific
gravity, and thence their quality. See Rev. St.
U. S. § 2918 (19 U.S.C.A. § 390).
HYDROSTATIC TEST. A method of determining
whether or not a deceased infant was born alive,
involving the removal of the lungs and the plac-
ing of them in a vessel of water; if the infant
had breathed, the air in the lungs will cause them
to float, though they may also float if decomposi-
tion has set in and gas has formed in the body.
Morgan v. State, 256 S.W. 433, 148 Term. 417.
Called, also, "docimasia pulmonum."
HYEMS, HIEMS. Lat. In the civil law. Winter.
Dig. 43, 20, 4, 34. Written, in some of the old
books, "uems." Fleta, lib. 2, c. 73, §§ 16, 18.
HYGIENE. A system of principles or rules de-
signed for the promotion of health. Lunn v. City
of Auburn, 110 Me. 241, 85 A. 893, 894.
HYPNOTIC OR SOMNIFACIENT DRUGS. Drugs
that produce sleep. State v. Jordan, 171 So.2d 650,
653, 247 La. 367.
HYPNOTISM. A condition, artificially produced,
in which the person hypnotized, apparently asleep,
acts in obedience to will of operator. Louis v.
State, 24 Ala.App. 120, 130 So. 904, 905.
HYPOBOLUM. In the civil law. The name of
the bequest or legacy given by the husband to
his wife, at his death, above her dowry.
HYPOCHONDRIA; HYPOMANIA. See Insanity.
HYPOSTASIS. In medical jurisprudence. (1)
The morbid deposition of a sediment of any kind
in the body. (2) A congestion or flushing of the
blood vessels, as in varicose veins. Post-mortem
hypostasis, a peculiar lividity of the cadaver.
HYPOTHEC. In Scotland, the term "hypothec"
is used to signify the landlord's right which, in-
dependently of any stipulation, he has over the
crop and stocking of his tenant. It gives a secur-
ity to the landlord over the crop of each year for
the rent of that year, and over the cattle and
stocking on the farm for the current year's rent,
which last continues for three months after the
last conventional term for the payment of the
rent. Bell.
HYPOTHECA. "Hypotheca" was a term of the
Roman 'law, and denoted a pledge or mortgage.
As distinguished from the term "pignus," in the
same law, it denoted a mortgage, whether of lands
or of goods, in which the subject in pledge re-
mained in the possession of the mortgagor or debt-
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HYSTERIA
or; whereas in the pignus the mortgagee or credi-
tor was in the possession. Such an hypotheca
might be either express or implied; express, where
the parties upon the occasion of a loan entered
into express agreement to that effect; or implied,
as, e. g., in the case of the stock and utensils of a
farmer, which were subject to the landlord's right
as a creditor for rent; whence the Scotch law of
hypothec.
The word has suggested the term "hypothecate,"
as used in the mercantile and maritime law of
England. Thus, under the factor's act, goods are
frequently said to be "hypothecated;" and a cap-
tain is said to have a right to hypothecate his
vessel for necessary repairs. Brown. See Mac-
keld. Rom. Law, §§ 334-359.
HYPOTHECARIA ACTIO. Lat. In the civil law.
An hypothecary action; an action for the enforce-
ment of an hypotheca, or right of mortgage; or
to obtain the surrender of the thing mortgaged.
Inst. 4, 6, 7; Mackeld. Rom. Law, § 356. Adopted
in the Civil Code of Louisiana, under the name of
"l'action hypothkarie," (translated, "action of
mortgage.") Civ. Code La. arts. 1433-1443; Code
Prac. La. art. 61.
HYPOTHECARII CREDITORES. Lat. In the
civil law. Hypothecary creditors; those who
loaned money on the security of an hypotheca,
(q. v.) Calvin.
HYPOTHECARY ACTION. The name of an ac-
tion allowed under the civil law for the enforce-
ment of the claims of a creditor by the contract
of hypotheca. Lovell v. Cragin, 136 U.S. 130, 10
Sup.Ct. 1024, 34 L.Ed. 372.
An hypothecary action is a real action, which the creditor
brings against the property which has been hypothecated
to him by his debtor, in order to have it seized and sold
for the payment of his debt. Code Prac.La. art. 61. In the
hypothecary action proper, there is no pursuit of the per-
son; the thing mortgaged is the debtor, and the action is
directed against it. In this sense, the action is real. Wis-
dom v. Parker, 31 La. Ann. 52.
HYPOTHECATE. To pledge a thing without de-
livering the possession of it to the pledgee. "The
master, when abroad, and in the absence of the
owner, may hypothecate the ship, freight, and
cargo, to raise money requisite for the completion
of the voyage." 3 Kent, Comm. 171. Ogden v.
Lathrop, 31 N.Y.Super.Ct. 651.
HYPOTHECATION. The term borrowed from the
civil law. In so far as it is naturalized in English
and American law, it means a contract of mort-
gage or pledge in which the subject-matter is not
delivered into the possession of the pledgee or
pawnee; or, conversely, a conventional right ex-
isting in one person over specific property of an-
other, which consists in the power to cause a sale
of the same, though it be not in his possession, in
order that a specific claim of the creditor may be
satisfied out of the proceeds. Whitney v. Peay, 24
Ark. 27.
The term is frequently used in our textbooks and reports,
particularly upon the law of bottomry and maritime liens;
thus a vessel is said to be hypothecated for the demand of
one who has advanced money for supplies.
In the common law, there are but few, if any, cases of
hypothecation, in the strict sense of the civil law; that is,
a pledge without possession by the pledgee. The nearest
approaches, perhaps, are cases of bottomry bonds and
claims of materialmen, and of seamen for wages; but these
are liens and privileges, rather than hypothecations: Story,
Bailm. § 288.
HYPOTHECATION BOND. A bond given in the
contract of bottomry or respondentia.
HYPOTHEQUE. In French law. Hypothecation;
a mortgage on real property; the right vested in
a creditor by the assignment to him of real es-
tate as security for the payment of his debt, whe-
ther or not it be accompanied by possession. See
Civ. Code La. art. 3397.
It corresponds to the mortgage of real property in Eng-
lish law, and is a real charge, following the property into
whosesoever hands it comes. It may be Wale, as in the
case of the charge which the state has over the lands of its
accountants, or which a married woman has over those of
her husband; judicicare, when it is the result of a judg-
ment of a court of justice; and conventionelle, when it is
the result of an agreement of the parties. Brown.
HYPOTHESIS. A supposition, assumption, or
theory; a theory set up by the prosecution, on a
criminal trial, or by the defense, as an explana-
tion of the facts in evidence, and a ground for
inferring guilt or innocence, as the case may be,
or as indicating a probable or possible motive for
the crime.
HYPOTHETICAL QUESTION. A combination of
assumed or proved facts and circumstances, stat-
ed in such form as to constitute a coherent and
specific situation or state of facts, upon which
the opinion of an expert is asked, by way of evi-
dence on a trial. Howard v. People, 185 Ill. 552,
57 N.E. 441; State v. Smoak, 213 N.C. 79, 195 S.E.
72, 81.
It should be so framed as to recite all the facts in evi-
dence which are relevant to the formation of an opinion
and then, assuming the facts recited to be true, the witness
should be asked whether he is able to form an opinion
therefrom and if so to state his opinion. McMurrey v.
State, 145 Tex.Cr.R. 439, 168 S.W.2d 858, 860.
HYPOTHETICAL YEARLY TENANCY. The bas-
is, in England, of rating lands and hereditaments
to the poor-rate, and to other rates and taxes that
are expressed to be leviable or assessable in like
manner as the poor-rate.
HYRNES. In old English law. A parish.
HYSTERIA. A paroxysmal disease or disorder of
the nervous system, more common in females than
males, not originating in any anatomical lesion,
due to psychic rather than physical causes, and
attended, in the acute or convulsive form, by ex-
traordinary manifestations of secondary effects of
extreme nervousness.
Hysteria is a state in which ideas control the body and
produce morbid changes in its functions. Mcebius. A
special psychic state, characterized by symptoms which
can also be produced or reproduced by suggestion, and
which can be treated by psychotherapy or persuasion,
hysteric and hypnotic states being practically equivalent to
each other. Babinski. A purely psychic or mental disorder
due to hereditary predisposition. Charcot. A state result-
ing from a psychic lesion or nervous shock, leading to
repression or aberration of the sexual instinct. Freud.
Hysteria is much more common in women than in men, and
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HYSTERIA
was formerly thought to be due to some disorder of the
uterus or sexual system; but it is now known that it may
occur in men, in children, and in very aged persons of
either sex.
In the convulsive form of hysteria, commonly called
"hysterics" or "a fit of hysterics," there is nervestorm
characterized by loss or abandonment of self-control in the
expression of the emotions, particularly grief, by parox-
ysms of tears or laughter or both together, sensations of
constriction as of a ball rising in the throat (globes hys-
tericus), convulsive movements in the chest, pelvis, and
abdomen, sometimes leading to a fall with apparent uncon-
sciousness, followed by a relapse into semiunconsciousness
or catalepsy. In the non-convulsive forms, all kinds of
organic paralyses may be simulated, as well as muscular
contractions and spasms, tremor, loss of sensation (anes-
thesia) or exaggerated sensation (hypercesthesia), disturb-
ances of respiration, disordered appetite, accelerated pulse,
hemorrhages in the skin (stigmata), pain, swelling, or even
dislocation of the joints, and great amenability to sugges-
tion.
HYSTERO–EPILEPSY. See Epilepsy.
HYSTEROPOTMOL Those who, having been
thought dead, had, after a long absence in for-
eign countries, returned safely home; or those
who, having been thought dead in battle, had af-
terwards unexpectedly escaped from their enemies
and returned home. These, among the Romans,
were not permitted to enter their own houses at
the door, but were received at a passage opened
in the roof. Enc. Lond.
HYSTEROTOMY. The Caesarean operation. See
Caesarean Section.
HYTHE, In English law. A port, wharf, or small
haven to embark or land merchandise at. Cowell;
Blount.
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IDEM
II. The initial letter of the word "Instituta," used
by some civilians in citing the Institutes of Jus-
tinian. Tayl. Civil Law, 24.
I. C. C. Interstate Commerce Commission; In-
dian Claims Commission.
I—CTUS. An abbreviation for "jurisconsultus,"
one learned in the law; a jurisconsult.
I. E. An abbreviation for "id est," that is; that
is to say.
I 0 U. A memorandum of debt, consisting of
these letters, ("I owe you,") a sum of money, and
the debtor's signature, is termed an "I 0 U."
Kinney v. Flynn, 2 R.I. 329.
I. R. S. Internal Revenue Service.
IBERNAGIUM. In old English law. The season
for sowing winter corn. Also spelled "hiberna-
glum" and "hybernagium" (q. v.).
IBI SEMPER DEBET FIERI TRIATIO UBI JURA-
TORES MELIOREM POSSUNT HABERE NOTI-
TIAM. 7 Coke, lb. A trial should always be had
where the jurors can be the best informed.
IBIDEM. Lat. In the same place; in the same
book; on the same page, etc. Abbreviated to
"ibid." or "ib."
ICENI. The ancient name for the people of Suf-
folk, Norfolk, Cambridgeshire, and Huntingdon.
shire, in England.
ICONA. An image, figure, or representation of
a thing. Du Cange.
ICTUS. In old English law. A stroke or blow
from a club or stone; a bruise, contusion, or swell-
ing produced by a blow from a club or stone, as
distinguished from "plaga," (a wound.) Fleta, lib.
1, c. 41, § 3.
ICTUS ORBIS. In medical jurisprudence. A
maim, a bruise, or swelling; any hurt without
cutting the skin. When the skin is cut, the in-
jury is called a "wound." Bract. lib. 2, tr. 2, cc.
5, 24.
ID CERTUM EST QUOD CERTUM REDDI PO-
TEST. That is certain which can be made cer-
tain. 2 B1.Comm. 143; 1 B1.Comm. 78; 4 Kent,
Comm. 462; Broom, Max. 624.
ID CERTUM EST QUOD CERTUM REDDI PO-
TEST, SED ID MAGIS CERTUM EST QUOD DE
SEMETIPSO EST CERTUM. That is certain
which can be made certain, but that is more cer-
tain which is certain of itself. 9 Coke, 47a.
ID EST. Lat. That is. Commonly abbreviated
"i. e."
ID PERFECTUM EST QUOD EX OMNIBUS SUIS
PARTIBUS CONSTAT. That is perfect which
consists of all its parts. 9 Coke 9.
ID POSSUMUS QUOD DE JURE POSSUMUS.
Lane, 116. We may do only that which by law
we are allowed to do.
ID QUOD EST MAGIS REMOTUM, NON TRAHIT
AD SE QUOD EST MAGIS JUNCTUM, SED E
CONTRARIO IN OMNI CASU. That which is
more remote does not draw to itself that which
is nearer, but the contrary in every case. Co. Litt.
164.
ID QUOD NOSTRUM EST SINE FACTO NOSTRO
AD ALIUM TRANSFERRI NON POTEST. That
which is ours cannot be transferred to another
without our act. Dig. 50, 17, 11.
ID SOLUM NOSTRUM QUOD DEBITIS DEDUC-
TIS NOSTRUM EST. That only is ours which
remains to us after deduction of debts. Tray. Lat.
Max. 227.
IDEM. Lat. The same. According to Lord Coke,
"idem" has two significations, sc., idem syllabus
seu verbis, (the same in syllabus or words,) and
idem re et sense, (the same in substance and in
sense.) 10 Coke, 124a.
In Old Practice. The said, or aforesaid; said,
aforesaid. Distinguished from "prcedictus" in old
entries, though having the same general significa-
tion. Townsh. P1.15, 16.
IDEM AGENS ET PATIENS ESSE NON POTEST.
Jenk. Cent. 40. The same person cannot be both
agent and patient;  e., the doer and person to
whom the thing is done.
IDEM EST FACERE, ET NON PROHIBERE CUM
POSSIS; ET QUI NON PROHIBIT, CUM PRO-
HIBERE POSSIT, IN CULPA EST, (AUT JUBET.)
3 Inst. 158. To commit, and not to prohibit when
in your power, is the same thing; and he who
does not prohibit when he can prohibit is in fault,
or does the same as ordering it to be done.
IDEM EST NIHIL DICERE, ET INSUFFICIEN-
TER DICERE. It is the same thing to say noth-
ing, and to say a thing insufficiently. To say a
thing in an insufficient manner is the same as not
to say it at all. Applied to the plea of a prisoner.
2 Inst. 178.
IDEM EST NON ESSE, ET NON APPARERE.
It is the same thing not to be as not to appear.
Jenk. Cent. 207. Not to appear is the same thing
as not to be. Broom, Max. 165.
IDEM EST NON PROBARI ET NON ESSE; NON
DEFICIT JUS, SED PROBATIO. What is not
proved and what does not exist are the same; it
is not a defect of the law, but of proof.
IDEM EST SCIRE AUT SCIRE DEBERE AUT
POTUISSE. To be bound to know or to be able to
know is the same as to know.
IDEM PER IDEM. The same for the same. An
illustration of a kind that really adds no additional
element to the consideration of the question.
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IDEM
IDEM SEMPER ANTECEDENTI PROXIMO RE-
FERTUR. Co. Litt. 685. "The same" is always
referred to its next antecedent.
IDEM SONANS. Sounding the same or alike;
having the same sound. A term applied to names
which are substantially the same, though slightly
varied in the spelling, as "Lawrence" and "Lawn
ance," and the like. 1 Cromp. & M. 806; 3 Chit.
Gen. Pr. 171; Golson v. State, 15 Ala.App. 420, 73
So. 753.
Two names are said to be "idem sonantes" if the atten-
tive ear finds difficulty in distinguishing them when pro-
nounced, or if common and long-continued usage has by
corruption or abbreviation made them identical in pro-
nunciation. State v. Griffle, 118 Mo. 188, 23 S.W. 878. The
rule of "idem sonans" is that absolute accuracy in spelling
names is not required in a legal document or proceedings
either civil or criminal; that if the name, as spelled in the
document, though different from the correct spelling
thereof, conveys to the ear, when pronounced according to
the commonly accepted methods, a sound practically iden-
tical with the correct name as commonly pronounced, the
name thus given is a sufficient identification of the individ-
ual referred to, and no advantage can be taken of the cleri-
cal error. State v. Hattaway, 180 La. 12, 156 So. 159. But
the doctrine of "idem sonans" has been much enlarged by
modern decisions, to conform to the growing rule that a
variance, to be material, must be such as has misled the
opposite party to his prejudice.
IDENTICAL. Exactly the same for all practical
purposes. Cam v. Moore, 74 Fla. 77, 76 So. 337,
340.
IDENTIFICATION. Proof of identity; the prov-
ing that a person, subject, or article before the
court is the very same that he or it is alleged,
charged, or reputed to be; as where a witness
recognizes the prisoner at the bar as the same
person whom he saw committing the crime; or
where handwriting, stolen goods, counterfeit coin,
etc., are recognized as the same which once passed
under the observation of the person identifying
them. Hall v. Cotton, 167 Ky. 464, 180 S.W. 779,
781, L.R.A.1916C, 1124.
IDENTITAS VERA COLLIGITUR EX MULTITU-
DINE SIGNORUM. True identity is collected
from a multitude of signs. Bac. Max.
IDENTITATE NOMINIS. In English law. An an-
cient writ (now obsolete) which lay for one taken
and arrested in any personal action, and commit.
ted to prison, by mistake for another man of the
same name. Fitzh. Nat. Brev. 267.
IDENTITY. In the Law of Evidence. Sameness;
the fact that a subject, person, or thing before
a court is the same as it is represented, claimed,
or charged to be. Burrill, Circ. Ev. 382, 453, 631,
644.
In Patent Law. Such sameness between two
designs, inventions, combinations, etc., as will con-
stitute the one an infringement of the patent
granted for the other.
To constitute "identity of invention," and therefore
infringement, not only must the result obtained be the
same, but, in case the means used for its attainment is a
combination of known elements, the elements combined in
both cases must be the same, and combined in the same
way, so that each element shall perform the same function:
provided that the differences alleged are not merely color-
able according to the rule forbidding the use of known
equivalents. Electric Railroad Signal Co. v. Hall Railroad
Signal Co., 114 U.S. 87, 5 Sup.Ct. 1069, 29 L. Ed. 96; Latta
v. Shawk, 14 Fed.Cas. 1188. "Identity of design" means
sameness of appearance, or, in other words, sameness of
effect upon the eye,—not the eye of an expert, but of an
ordinary intelligent observer. Smith v. Whitman Saddle
Co., 148 U.S. 674, 13 Sup.Ct. 768, 37 L.Ed. 606.
IDEO. Lat. Therefore. Calvin.
IDEO CONSIDERATUM EST. Lat. Therefore it
is considered. These were the words used at the
beginning of the entry of judgment in an action,
when the forms were in Latin. They are also used
as a name for that portion of the record.
IDEOT. An old form for idiot (q. v.).
IDES. A division of time among the Romans.
In March, May, July, and October, the Ides were
on the 15th of the month; in the remaining
months, on the 13th. This method of reckoning
is still retained in the chancery of Rome, and in
the calendar of the breviary. Wharton.
Under the word "Ides" in Bouvier's Law Diet., Rawle's
3d Rev., p. 1486, will be found a complete table of the
calends, nones, and ides.
IDIOCHIRA. Graeco-Lat. In the civil law. An
instrument privately executed, as distinguished
from such as were executed before a public officer.
Cod. 8, 18, 11; Calvin.
IDIOCY, IDIOPATHIC INSANITY. See Insanity.
IDIOPATHIC DISEASE. A morbid state or con-
dition not preceded or occasioned by any other
disease. Christ v. Pacific Mutual Life Ins. Co.,
231 Ill.App. 439.
IDIOT. A person who has been without under-
standing from his nativity, and whom the law,
therefore, presumes never likely to attain any.
Shelf. Lun. 2. See Insanity. State v. Haner, 186
Iowa, 1259, 173 N.W. 225; Jones v. Commonwealth,
154 Ky. 752, 159 S.W. 568, 569.
IDIOTA. In the Civil Law. An unlearned, illi-
terate, or simple person. Calvin. A private man;
one not in office.
In Common Law. An idiot or fool,
IDIOTA INQUIRENDO, WRIT DE. This is the
name of an old writ which directs the sheriff to
inquire whether a man be an idiot or not. The
inquisition is to be made by a jury of twelve men.
Fitzh. Nat. Brev. 232. And, if the man were found
an idiot, the profits of his lands and the custody
of his person might be granted by the king to any
subject who had interest enough to obtain them.
1 Bl.Comm. 303.
IDONEUM SE FACERE; IDONEARE SE. To
purge one's self by oath of a crime of which one
is accused.
IDONEUS. Lat. In the civil and common law.
Sufficient; competent; fit or proper; responsible;
unimpeachable. Idoneus homo, a responsible or
solvent person; a good and lawful man. Suffi-
cient; adequate; satisfactory. Idonea cautio, suf-
ficient security.
IDONIETAS. In old English law. Ability or fit-
ness (of a parson). Artic. Cleri, c. 13.
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IGNORANTIA
IF. In deeds and wills, this word, as a rule, im-
plies a condition precedent, unless it be controlled
by other words. 2 Crabb, Real Prop. p. 809, §
2152; Sutton v. West, 77 N.C. 431. Hughes v. John
Hancock Mut. Life Ins. Co., 297 N.Y.S. 116, 122, 163
Misc. 31.
IFUNGIA. In old English law. The finest white
bread, formerly called "cocked bread." Blount.
IGLISE. L. Fr. A church. Kelham. Another
form of "eglise."
IGNIS JUDICIUM. Lat. The old judicial trial by
fire. Blount.
IGNITEGIUM. In old English law. The curfew,
or evening bell. Cowell. See Curfew.
IGNOMINY. Public disgrace; infamy; reproach;
dishonor. Ignominy is the opposite of esteem.
Wolff, § 145. See Brown v. Kingsley, 38 Iowa
220.
IGNORAMUS. Lat. "We are ignorant;" "We
ignore it." Formerly the grand jury used to write
this word on bills of indictment when, after hav-
ing heard the evidence, they thought the accusa-
tion against the prisoner was groundless, intimat-
ing that, though the facts might possibly be true,
the truth did not appear to them; but now they
usually write in English the words "Not a true
bill," or "Not found," if that is their verdict; but
they are still said to ignore the bill. Brown.
IGNORANCE. The want or absence of knowl-
edge.
Ignorance of law is want of knowledge or acquaintance
with the laws of the land in so far as they apply to the act,
relation, duty, or matter under consideration. Ignorance
of fact is want of knowledge of some fact or facts constitut-
ing or relating to the subject-matter in hand. Marshall v.
Coleman, 187 Ill. 556, 58 N.E. 628.
Ignorance is not a state of the mind in the sense in
which sanity and insanity are. When the mind is ignorant
of a fact, its condition still remains sound; the power of
thinking, of judging, of willing, is just as complete before
communication of the fact as after ; the essence or texture,
so to speak, of the mind, is not, as in the case of insanity,
affected or impaired. Ignorance of a particular fact con-
sists in this : that the mind, although sound and capable of
healthy action, has never acted upon the fact in question,
because the subject has never been brought to the notice
of the perceptive faculties. Meeker v. Boylan, 28 N.J.Law,
274.
Synonyms
"Ignorance" and "error" or "mistake" are not
convertible terms. The former is a lack of infor-
mation or absence of knowledge; the latter, a
misapprehension or confusion of information, or
a mistaken supposition of the possession of knowl-
edge. Error as to a fact may imply ignorance
of the truth; but ignorance does not necessarily
imply error. Cuibreath v. Culbreath, 7 Ga. 70, 50
Am.Dec. 375.
General
Culpable ignorance is that which results from
a failure to exercise ordinary care to acquire
knowledge, and knowledge which could be ac-
quired by the exercise of ordinary care is by law
imputed to the person and he is held to have con-
structive knowledge. Luck v. Buffalo Lakes, Tex.
Civ.App., 144 S.W.2d 672, 676.
Essential ignorance is ignorance in relation to
some essential circumstance so intimately con-
nected with the matter in question, and which so
influences the parties, that it induces them to act
in the business. Poth. Vente, nn. 3, 4; 2 Kent,
Comm. 367.
Nonessential or accidental ignorance is that
which has not of itself any necessary connection
with the business in question, and which is not the
true consideration for entering into the contract.
Involuntary ignorance is that which does not
proceed from choice, and which cannot be over-
come by the use of any means of knowledge
known to a person and within his power; as the
ignorance of a law which has not yet been prom-
ulgated.
Voluntary ignorance exists when a party might,
by taking reasonable pains, have acquired the
necessary knowledge. For example, every man
might acquire a knowledge of the laws which
have been promulgated. Doct. & Stud. 1, 46;
Plowd. 343.
IGNORANTIA. Lat. Ignorance; want of knowl-
edge. Distinguished from mistake, (error,) or
wrong conception. Mackeld. Rom. Law, § 178;
Dig. 22, 6. Divided by Lord Coke into ignorantia
facti (ignorance of fact) and ignorantia juris
(ignorance of law). And the former, he adds, is
twofold—lectionis et linquce (ignorance of reading
and ignorance of language). 2 Coke, 3b.
IGNORANTIA EORUM QUIE QUIS SCIRE TENE-
TUR NON EXCUSAT. Ignorance of those things
which one is bound to know excuses not. Hale, P.
C. 42; Broom, Max. 267.
IGNORANTIA FACTI EXCUSAT. Ignorance of
fact excuses or is a ground of relief. 2 Coke, 3b.
Acts done and contracts made under mistake or
ignorance of a material fact are voidable and re-
lievable in law and equity. 2 Kent, Comm. 491,
and notes.
IGNORANTIA FACTI EXCUSAT, IGNORANTIA
JURIS NON EXCUSAT. Ignorance of the fact
excuses; ignorance of the law excuses not. Every
man must be taken to be cognizant of the law;
otherwise there is no saying to what extent the
excuse of ignorance may not be carried. 1 Coke,
177; Broom, Max. 253.
IGNORANTIA JURIS QUOD QUISQUE TENE-
TUR SCIRE, NEMINE1YI EXCUSAT. Ignorance
of the [or a] law, which every one is bound to
know, excuses no man. A mistake in point of law
is, in criminal cases, no sort of defense. 4 Bl.
Comm. 27; 4 Steph.Comm. 81; Broom, Max. 253;
7 Car. & P. 456. And, in civil cases, ignorance
of the law, with a full knowledge of the facts,
furnishes no ground, either in law or equity, to
rescind agreements, or reclaim money paid, or
set aside solemn acts of the parties. 2 Kent,
Comm. 491, and note.
Black's Law Dictionary Revised 4th Ed.-56 881

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IGNORANTIA
IGNORANTIA JURIS SUI NON PRIEJUDICAT
JURI. Ignorance of one's right does not preju-
dice the right. Lofft, 552.
IGNORANTIA LEGIS NEMINEM EXCUSAT.
Ignorance of law excuses no one. 4 Bouv. Inst. no.
3828; 1 Story, Eq. Jur. § 111; 7 Watts, 374.
IGNORANTIA PRIESUMITUR UBI SCIENTIA
NON PROBATUR. Ignorance is presumed where
knowledge is not proved. Bouvier.
IGNORARE LEGIS EST LATA CULPA. To be
ignorant of the law is gross neglect. Bouvier.
IGNORATIO ELENCHI. Lat. A term of logic,
sometimes applied to pleadings and to arguments
on appeal, which signifies a mistake of the ques-
tion, that is, the mistake of one who, failing to
discern the real question which he is to meet and
answer, addresses his allegations or arguments to
a collateral matter or something beside the point.
Case upon the Statute for Distribution, Wythe
Va. 309.
IGNORATIS TERMINIS ARTIS, IGNORATUR ET
ARS. Where the' terms of an art are unknown,
the art itself is unknown also. Co. Litt. 2a.
IGNORE. To be ignorant of, or unacquainted
with. To disregard willfully; to refuse to rec-
ognize; to decline to take notice of. Cleburne
County v. Morton, 69 Ark. 48, 60 S.W. 307.
To reject as groundless, false or unsupported by
evidence; as when a grand jury ignores a bill of
indictment.
IGNOSCITUR EI QUI SANGUINEM SUUM
QUALITER REDEMPTUM VOLUIT. The law
holds him excused from obligation who chose to
redeem his blood (or life) upon any terms. What-
ever a man may do under the fear of losing his
life or limbs will not be held binding upon him in
law. 1 Bl.Comm. 131.
IKBAL. Acceptance (of a bond, etc.). Wilson's
Gloss. Ind.
IKBAL DAWA. Confession of judgment. Wil-
son's Gloss. Ind.
IKENILD STREET. One of the four great Roman
roads in Britain; supposed to be so called from
the Iceni.
IKRAH. Compulsion; especially constraint exer-
cised by one person over another to do an illegal
act, or to act contrary to his inclination. Wilson's
Gloss. Ind.
IKRAR. Agreement, assent, or ratification. Wil-
son's Gloss. Ind.
IKRAR NAMA. A deed of assent and acknowl-
edgment. Wilson's Gloss. Ind.
ILL. In old pleading. Bad; defective in law;
null; naught; the opposite of good or valid.
ILL FAME. Evil repute; notorious bad character.
Houses of prostitution, gaming houses, and other
such disorderly places are called "houses of ill
fame," and a person who frequents them is a per-
son of ill fame. See Boles v. State, 46 Ala. 206.
ILLATA ET INVECTA. Lat. Things brought in-
to the house for use by the tenant were so called,
and were liable to the jus hypothecce of Roman
law, just as they are to the landlord's right of
distress at common law.
ILLEGAL. Not authorized by law; illicit; un-
lawful; contrary to law; Protest of Downing, 164
Okl. 181, 23 P.2d 173.
Sometimes this term means merely that which lacks
authority of or support from law; but more frequently it
imports a violation. Etymologically, the word seems to
convey the negative meaning only. But in ordinary use it
has a severer, stronger signification; the idea of censure or
condemnation for breaking law is usually presented. But
the law implied in illegal is not necessarily an express stat-
ute. Things are called "illegal" for a violation of common-
law principles. And the term does not imply that the act
spoken of is immoral or wicked; it implies only a breach
of the law. Tiedt v. Carstensen, 61 Iowa, 334, 16 N.W. 214.
ILLEGAL CONDITIONS. All those that are im-
possible, or contrary to law, immoral, or repug-
nant to the nature of the transaction.
ILLEGAL CONTRACT. An agreement with un-
lawful object and not merely lacking in valid sub-
ject-matter, but made for positively invalid pur-
pose. American-LaFrance & Foamite Industries
v. Arlington County, 169 Va. 1, 192 S.E. 758, 761.
ILLEGAL INTEREST. Usury; interest at a high-
er rate than the law allows. Parsons v. Babcock,
40 Neb. 119, 58 N.W. 726.
ILLEGAL TRADE. Such traffic or commerce as
is carried on in violation of the municipal law, or
contrary to the law of nations. See Illicit.
ILLEGALITY. That which is contrary to the
principles of law, as contradistinguished from
mere rules of procedure. It denotes a complete
defect in the proceedings. Ex parte Davis, 118 Or.
693, 247 P. 809, 811.
ILLEGITIMACY. The condition before the law,
or the social status, of a bastard; the state or
condition of one whose parents were not inter-
married at the time of his birth.
ILLEGITIMATE. That which is contrary to raw;
it is usually applied to bastards, or children born
out of lawful wedlock.
The Louisiana Code divided illegitimate children into two
classes : (1) Those born from two persons who, at the
moment when such children were conceived, could have
lawfully intermarried; and (2) those who are born from
persons to whose marriage there existed at the time some
legal impediment.  Both classes, however, could be
acknowledged and take by devise. Compton y. Prescott,
12 Rob., La., 56.
ILLEVIABLE. Not leviable; that cannot or
ought not to be levied. Cowell.
ILLICENCIATUS. In old English law. Without
license. Fleta, lib. 3, c. 5, § 12.
ILLICIT. Not permitted or allowed; prohibited;
unlawful; as an illicit trade; illicit intercourse.
State v. Miller, 60 Vt. 90, 12 A. 526.
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IMBROCUS
ILLICIT CONNECTION. Unlawful sexual inter-
course. State v. King, 9 S.D. 628, 70 N.W. 1046.
ILLICIT COHABITATION. The living together
as man and wife of two persons who are not law-
fully married, with the implication that they ha-
bitually practice fornication. Thomas v. United
States, D.C.Mass., 14 F.2d 228, 229.
ILLICIT DISTILLERY. One carried on without
a compliance with the provisions of the laws of
the United States relating to the taxation of spir-
ituous liquor. U. S. v. Johnson, C.C.Ga., 26 F.
684.
ILLICIT TRADE. Policies of marine insurance
usually contain a covenant of warranty against "il-
licit trade," meaning thereby trade which is for-
bidden, or declared unlawful, by the laws of the
country where the cargo is to be delivered. I Pars.
Mar. Ins. 614.
"It is not the same with 'contraband trade,' although the
words are sometimes used as synonymous. Illicit or pro-
hibited trade is one which cannot be carried on without
a distinct violation of some positive law of the country
where the transaction is to take place."
ILLICITE. Lat. Unlawfully. This word has a
technical meaning, and is requisite in an indict-
ment where the act charged is unlawful; as in
the case of a riot. 2 Hawk. P. C. c. 25, § 96.
ILLICITUM COLLEGIUM. Lat. An illegal cor-
poration.
ILLITERATE. Unlettered; ignorant; unlearned.
Generally used of one who cannot read and write.
In re Succession of Carroll, 28 La.Ann. 388.
ILLNESS. In insurance law. A disease or ail-
ment of such a character as to affect the general
soundness and healthfulness of the system ser-
iously, and not a mere temporary indisposition
which does not tend to undermine or weaken the
constitution of the insured. Prudential Ins. Co. of
America v. Sellers, 54 Ind.App. 326, 102 N.E. 894,
897. Zogg v. Bankers' Life Co. of Des Moines,
Iowa, C.C.A.W.Va., 62 F.2d 575, 578.
ILLOCABLE. Incapable of being placed out or
hired.
ILLUD. Lat. That.
ILLUD, QUOD ALIAS LICITUM NON EST,
NECESSITAS FACIT LICITUM; ET NECESSI-
TAS INDUCIT PRIVILEGIUM QUOAD JURA
PRIVATA. Bac. Max. That which is otherwise
not permitted, necessity permits; and necessity
makes a privilege as to private rights.
ILLUD, QUOD ALTERI UNITUR, EXTINGUI-
TUR, NEQUE AMPLIUS PER SE VACARE LI-
CET. Godol. Ecc. Law, 169. That which is united
to another is extinguished, nor can it be any more
independent.
ILLUSION. In medical jurisprudence. An image
or impression in the mind, excited by some ex-
ternal object addressing itself to one or more of
the senses, but which, instead of corresponding
with the reality, is perverted, distorted, or whol-
ly mistaken, the error being attributable to the
imagination of the observer, not to any defect in
the organs of sense. See Hallucination, and see
"Delusion," under Insanity.
ILLUSORY. Deceiving by false appearances;
nominal, as distinguished from substantial; falla-
cious; illusive. Bolles v. Toledo Trust Co., 144
Ohio St. 195, 58 N.E.2d 381, 390.
ILLUSORY APPOINTMENT. Formerly the ap-
pointment of a merely nominal share of the prop-
erty to one of the objects of a power, in order to
escape the rule that an exclusive appointment
could not be made unless it was authorized by the
instrument creating the power, was considered il-
lusory and void in equity. But this rule has been
abolished in England. (1 Wm. IV. c. 46; 37 & 38
Vict. c. 37.)  Sweet. Brown v. Fidelity Union
Trust Co., 126 N.J.Eq. 406, 9 A.2d 322.
ILLUSORY APPOINTMENT ACT. The statute
1 Wm. IV. c. 46. This statute enacts that no ap-
pointment made after its passing, (July 16, 1830,)
in exercise of a power to appoint property, real
or personal, among several objects, shall be in-
valid, or impeached in equity, on the ground that
an unsubstantial, illusory, or nominal share only
was thereby appointed, or left unappointed, to de-
volve upon any one or more of the objects of such
power; but that the appointment shall be valid
in equity, as at law. See, too, 37 & 38 Vict. c. 37.
Wharton.
ILLUSTRIOUS. The prefix to the title of a prince
of the blood in England.
IMAGINE. In English law. In cases of treason
the law makes it a crime to imagine the death
of the king. But, in order to complete the crime,
this act of the mind must be demonstrated by
some overt act. The terms "imagining" and "com-
passing" are in this connection synonymous. 4
Bl. Comm. 78.
IMAN, IMAM, or IMAUM. A Mohammedan
prince having supreme spiritual as well as tem-
poral power; a regular priest of the mosque.
IMBARGO. An old form of "embargo," (q. v.)
St. 18 Car. II. c. 5.
IMBASING OF MONEY. The act of mixing the
specie with an alloy below the standard of sterling,
1 Hale, P. C. 102.
IMBECILITY. See Insanity.
IMBEZZLE. An occasional or obsolete form of
"embezzle" (q. v.).
IMBLADARE. In old English law. To plant or
sow grain. Bract. fol. 176b.
IMBRACERY. See Embracery.
IMBROCUS. A brook, gutter, or water-passage.
Cowell.
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IMITATION
IMITATION. The making of one thing in the
similitude or likeness of another; as, counterfeit
coin is said to be made "in imitation" of the gen-
uine. Wagner v. Daly, 67 Hun. 477, 22 N.Y.S. 493.
An imitation of a trade-mark is that which so far resem-
bles the genuine trade-mark as to be likely to induce the
belief that it is genuine, whether by the use of words or
letters similar in appearance or in sound, or by any sign,
device, or other means.
The test of "colorable imitation" is, not whether a dif-
ference may be recognized between the names of two com-
peting articles when placed side by side, but whether the
difference will be recognized by the purchaser with no
opportunity for comparison. The Best Foods v. Hemphill
Packing Co., D.C.Del., 5 F.2d 355, 357.
IMMATERIAL. Not material, essential, or nec-
essary; not important or pertinent; not decisive;
of no substantial consequence; without weight;
of no significance. State v. Cordaro, 211 Iowa 224,
233 N.W. 51, 53.
IMMATERIAL AVERMENT. An averment alleg-
ing with needless particularity or unnecessary cir-
cumstances what is material and necessary, and
which might properly have been stated more gen-
erally, and without such circumstances and par-
ticulars; or, in other words, a statement of un-
necessary particulars in connection with and as
descriptive of what is material. Dunlap v. Kelly,
105 Mo.App. 1, 78 S.W. 664; Bulova v. E. L. Bar-
nett, Inc., 111 Misc. 150, 181 N.Y.S. 247, 250.
IMMATERIAL FACTS. Those which are not es-
sential to the right of action or defense.
IMMATERIAL ISSUE. In pleading. An issue
taken on an immaterial point; that is, a point not
proper to decide the action. Steph. Pl. 99, 130;
2 Tidd, Pr. 921.
IMMATERIAL VARIANCE. Discrepancy be-
tween the pleading and proof of a character so
slight that the adverse party cannot say that he
was misled thereby. E. B. Ryan Co. v. Russell,
52 Mont. 596, 161 P. 307, 308.
IMMEDIATE. Present; at once; without delay;
not deferred by any interval of time.. In this
sense, the word, without any very precise signifi-
cation, denotes that action is or must be taken
either instantly or without any considerable loss
of time. A reasonable time in view of particular
facts and circumstances of case under considera-
tion. Mullins v. Masonic Protective Ass'n, 181 Mo.
App. 394, 168 S.W. 843, 844. George v. Aetna Cas-
ualty and Surety Co., 121 Neb. 647, 238 N.W. 36,
38. Next in line or relation; directly connected;
not secondary or remote. Bunner v. Patti, 343
Mo. 274, 121 S.W.2d 153, 155. Not separated in
respect to place; not separated by the interven-
tion of any intermediate object, cause, relation, or
right. Thus we speak of an action as prosecuted
for the "immediate benefit" of A., of a devise as
made to the "immediate issue" of B., etc.
IMMEDIATE CAUSE. The last of a series or
chain of causes tending to a given result, and
which, of itself, and without the intervention of
any further cause, .directly produces the result or
event. Deisenrieter v. Kraus-Merkel Malting Co.,
72 N.W. 735, 97 Wis. 279; Longabaugh v. Rail-
road Co., 9 Nev. 271. See, also, Proximate.
A cause may be immediate in this sense, and yet not
"proximate ;" and conversely, the proximate cause (that
which directly and efficiently brings about the result) may
not be immediate. The familiar illustration is that of a
drunken man falling into the water and drowning. His
intoxication is the proximate cause of his death, if it can
be said that he would not have fallen into the water when
sober; but the immediate cause of death is suffocation by
drowning.
IMMEDIATE CONTROL (of motor vehicle upon
approaching or traversing railroad crossing).
Such constant control as would enable driver to
instantly govern vehicle's movements, including
the power to stop within a distance in which such
a vehicle, in good mechanical condition, driven by
a reasonably skillful driver, and traveling at a
'lawful rate of speed, could be stopped. Central of
Georgia Ry. Co. v. Burton, 125 S.E. 868, 33 Ga.
App. 199.
IMMEDIATE DESCENT. See Descent.
IMMEDIATE NOTICE. As required by policy as
for proof of loss means within a reasonable time.
Lydon v. New York Life Ins. Co., C.C.A.Mo., 89
F.2d 78, 82.
IMMEDIATELY. Without interval of time, with-
out delay, straightway, or without any delay or
lapse of time. Drumbar v. Jeddo-Highland Coal
Co., 155 Pa.Super. 57, 37 A.2d 25, 27.
The words, "immediately" and "forthwith" have the
same meaning. They are stronger than the expression
"within a reasonable time" and imply prompt, vigorous ac-
tion without any delay. Alsam Holding Co. v. Consolidat-
ed Taxpayers' Mut. Ins. Co., 4 N.Y.S.2d 498, 505, 167 Mac.
732.
IMMEMORIAL. Beyond human memory; time
out of mind.
IMMEMORIAL POSSESSION. In Louisiana.
Possession of which no man living has seen the
beginning, and the existence of which he has
learned from his elders. Civ.Code La. art. 766.
IMMEMORIAL USAGE. A practice which has
existed time out of mind; custom; prescription.
Miller v. Garlock, 8 Barb. (N.Y.) 154.
IMMEUBLES. Fr. These are, in French law, the
immovables of English law. Things are immeu-
bles from any one of three causes: (1) From
their own nature, e. g., lands and houses; (2)
from their destination, e. g., animals and instru-
ments of agriculture when supplied by the land-
lord; or (3) by the object to which they are an-
nexed, e. g., easements. Brown.
IMMIGRATION. The coming into a country of
foreigners for purposes of permanent residence.
The correlative term "emigration" denotes the act
of such persons in leaving their former country.
IMMINENT. Near at hand; mediate rather than
immediate; close rather than touching; impend-
ing; on the point of happening; threatening;
menacing; perilous. Furlow v. State, 72 Fla. 464,
73 So. 362; Jaroniec v. C. 0. Hasselbarth, Inc.,
228 N.Y.S. 302, 304, 223 App.Div. 182.
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IMPALARE
IMMINENT DANGER. In relation to homicide
in self-defense, this term means immediate dan-
ger, such as must be instantly met, such as cannot
be guarded against by calling for the assistance of
others or the protection of the law. State v.
Smith, 43 Or. 109, 71 P. 973. Or, as otherwise de-
fined, such an appearance of threatened and im-
pending injury as would put a reasonable and
prudent man to his instant defense. State v. Fon-
tenot, 50 La.Ann. 537, 23 So. 634, 69 Am.St.Rep.
455.
IMMINENTLY DANGEROUS ARTICLE. One
that is reasonably certain to place life or limb
in peril. Employers' Liability Assur. Corporation
v. Columbus McKinnon Chain Co., D.C.N.Y., 13
F.2d 128.
IMMISCERE. Lat. In the civil law. To mix or
mingle with; to meddle with; to join with. Cal-
vin.
IMMITTERE. Lat. In the Civil Law. To put or
let into, as a beam into a wall. Calvin.; Dig. 50,
17, 242, 1.
In old English law, to put cattle on a common.
Fleta, lib. 4, c. 20, § 7.
IMMOBILIA SITUM SEQUUNTUR. Immovable
things follow their site or position; are governed
by the law of the place where they are fixed. 2
Kent, Comm. 67. Cf. Mobilia Sequuntur Per-
sonam.
IMMOBILIS. Lat. Immovable. Immobilia or res
immobiles, immovable things, such as lands and
buildings. Mackeld. Rom. Law, § 160.
IMMODERATE. Exceeding just, usual, or suit-
able bounds; not within reasonable limits. Unit-
ed States v. Oglesby Grocery Co., D.C.Ga., 264 F.
691, 695; People v. McMurchy, 249 Mich. 147, 228
N.W. 723, 726.
IMMORAL. Contrary to good morals; inconsist-
ent with the rules and principles of morality;
inimical to public welfare according to the stand-
ards of a given community, as expressed in law or
otherwise. Exchange Nat. Bank of Fitzgerald v.
Henderson, 139 Ga. 260, 77 S.E. 36, 37, 51 L.R.A.
( N.S.) 549. Morally evil; impure; unprincipled;
vicious; or dissolute. U. S. v. One Book, Entitled
"Contraception," by Marie C. Stopes, D.C.N.Y., 51
F.2d 525, 527.
IMMORAL CONDUCT. Within rules authorizing
disbarment of attorney is that conduct which is
willful, flagrant, or shameless, and which shows a
moral indifference to the opinions of the good and
respectable members of the community. Warken-
tin v. Kleinwachter, 166 Okl. 218, 27 P.2d 160.
IMMORAL CONSIDERATION. One contrary to
good morals, and therefore invalid. Contracts
based upon an immoral consideration are general-
ly void.
IMMORAL CONTRACTS. Contracts founded up-
on considerations contra bonos mores are void.
IMMORALITY. That which is contra bonos mor-
es. See Immoral.
IMMOVABLES. In the civil law. Property which,
from its nature, destination, or the object to which
it is applied, cannot move itself, or be removed.
Breaux v. Ganucheau, 3 La.App. 481, 482; Scott
v. Brennan, 3 La.App. 452, 453.
Immovable things are, in general, such as cannot either
move themselves or be removed from one place to another.
But this definition, strictly speaking, is applicable only. to
such things as are immovable by their own nature, and not
to such as are so only by the disposition of the law.
IMMUNITY. Exemption, as from serving in an
office, or performing duties which the law general-
ly requires other citizens to perform. Ex parte
Levy, 43 Ark. 54, 51 Am.Rep. 550. Freedom from
duty or penalty. Leatherwood v. Hill, 10 Ariz.
243, 89 P. 521, 523. The term aptly describes an
exemption from taxation. Buchanan v. Knoxville
& 0. R. Co., C.C.A.Tenn., 71 F. 324, 334, 18 C.C.A.
122. A particular privilege. Webster, Dict.; Sac-
ramento Orphanage, etc., Home v. Chambers, 25
Cal.App. 536, 144 P. 317, 319.
IMPAIR. To weaken, to make worse, to lessen in
power, diminish, or relax, or otherwise affect in an
injurious manner. Davey v. IEtna L. Ins. Co.,
C.C.N.J., 20 F. 482; State ex rel. Woman's Ben.
Ass'n v. Port of Palm Beach Dist., 121 Fla. 746,
164 So. 851, 856.
IMPAIRING THE OBLIGATION OF CON-
TRACTS. A law which impairs the obligation of
a contract is one which renders the contract in it-
self less valuable or less enforceable, whether by
changing its terms and stipulations, its legal qual-
ities and conditions, or by regulating the remedy
for its enforcement. City of Indianapolis v. Robi-
son, 186 Ind. 660, 117 N.E. 861.
To "impair the obligation of a contract" within Const.
U.S. art. 1, § 10, is to weaken it, lessen its value, or make
it worse in any respect or in any degree, and any law
which changes the intention and legal effect of the parties,
giving to one a greater and to the other a less interest or
benefit, or which imposes conditions not included in the
contract or dispenses with the performance of those
included, impairs the obligation of the contract. O'Connor
v. Hartford Accident & Indemnity Co., 97 Conn. 8, 115 A.
484, 486.
A statute "impairs the obligation of a contract" when by
its terms it nullifies or materially changes existing con-
tract obligations. Oil Fork Development Co. v. Huddle-
ston, 202 Ky. 261, 259 S.W. 334, 335; McNee v. Wall,
D.C.Fla., 4 F.Supp. 496, 498.
The word "impair" means, according to the standard
writers in our language, simply "to diminish; to injure;
to make worse," etc. It is remarkable that in framing the
provision of the federal Constitution providing that no law
should be passed, "impairing the obligation of any con-
tract," the convention did not use the term "lessen" or
"decrease" or "destroy," but one more comprehensive,
which prohibited making worse in any respect a contract
legitimate in its creation. The object, then, of its provi-
sion, may have been to establish an important principle,
and that was the entire inviolability of contracts. Blair v.
Williams, 14 Ky. (4 Litt.) 34, 35; Lapsley v. Brashears, 14
Ky. (4 Litt.) 47, 69.
See 2 Story, Const. §§ 1374-1399; 1 Kent, Comm.
413-422; Pom. Const. Law; Black, Const. Law
(3d Ed.) p. 720 et seq.
IMPALARE. To impound. Du Cange.
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IMPANEL
IMPANEL. In English practice. To impanel a
jury signifies the entering by the sheriff upon a
piece of parchment, termed a "panel," the names
of the jurors who have been summoned to appear
in court on a certain day to form a jury of the
country to hear such matters as may be brought
before them. Brown.
In American practice. Besides the meaning
above given, "impanel" signifies the act of the
clerk of the court in making up a list of the jur-
ors who have been selected for the trial of a par-
ticular cause. All the steps of ascertaining who
shall be the proper jurors to sit in the trial of a
particular case up to the final formation. People
v. Poole, 284 Ill. 39, 119 N.E. 916.
Impaneling has nothing to do with drawing, selecting, or
swearing jurors, but means simply making the list of those
who have been selected. Porter v. People, 7 How.Prac.
(N.Y.) 441; State ex rel. Green v. Pearson, 153 Fla. 314,
14 So.2d 565, 567.
IMPARCARE. In old English law. To impound.
Reg. Orig. 92b. To shut up, or confine in prison.
Inducti sunt in carcerem et imparcati, they were
carried to prison and shut up. Bract. fol. 124.
IMPARGAMENTUM. The right of impounding
cattle.
IMPARL. To have license to settle a litigation
amicably; to obtain delay for adjustment.
IMPARLANCE. In early practice, imparlance
meant time given to either of the parties to an
action to answer the pleading of the other. It thus
amounted to a continuance of the action to a fur-
ther day. Literally the term signified leave given
to the parties to talk together; i. e., with a view
to settling their differences amicably. But in
modern practice it denotes a time given to the
defendant to plead.
A general imparlance is the entry of a general prayer and
allowance of time to plead till the next term, without
reserving to the defendant the benefit of any exception; so
that after such an imparlance the defendant cannot object
to the jurisdiction of the court, or plead any matter in
abatement. This kind of imparlance is always from one
term to another. Colby v. Knapp, 13 N.H. 175; Mack v.
Lewis, 67 Vt. 383, 31 Atl. 888.
A general special imparlance contains a saving of all
exceptions whatsoever, so that the defendant after this may
plead not only in abatement, but he may also plead a plea
which affects the jurisdiction of the court, as privilege. He
cannot, however, plead a tender, and that he was always
ready to pay, because by craving time, he admits that he is
not ready, and so falsifies his plea.
A special imparlance reserves to the defendant all excep-
tions to the writ, bill, or count; and therefore after it the
defendant may plead in abatement, though not to the juris-
diction of the court. 1 Tidd, Pr. 462, 463.
IMPARSONEE. L. Fr. In ecclesiastical law.
One who is inducted and in possession of a bene-
fice. Parson imparsonee (persona impersonata).
Cowell; Dyer, 40.
IMPARTIAL. Favoring neither; disinterested;
treating all alike; unbiased; equitable, fair, and
just. Evans v. Superior Court in and for Los
Angeles County, 107 Cal.App. 372, 290 P. 662, 666.
The provision of the Bill of Rights requiring that the
accused shall have a fair trial by an impartial jury, means
that the jury must be not partial, not favoring one party
more than another, unprejudiced, distinterested, equitable,
and just, and that the merits of the case shall not be pre-
judged. Duncan v. State, 79 Tex.Cr.R. 206, 184 S.W. 195,
196.
IMPARTIAL JURY. Within constitutional pro-
vision is one which is of impartial frame of mind
at beginning of trial, is influenced only by legal
and competent evidence produced during trial, and
bases its verdict upon evidence connecting defend-
ant with the commission of the crime charged.
Const.U.S. Amend. 6. Durham v. State, 182 Tenn.
577, 188 S.W.2d 555, 558, 160 A.L.R. 746.
For "Fair and Impartial Jury," and "Fair and
Impartial Trial," see those titles.
IMPARTIBLE FEUD. See Feudum Individuum.
IMPATRONIZATION. In ecclesiastical law. The
act of putting into full possession of a benefice.
IMPEACH. To accuse; to charge a liability upon;
to sue. To dispute, disparage, deny, or contradict;
as, to impeach a judgment or decree; or as used
in the rule that a jury cannot "impeach their ver-
dict." Wolfgram v. Schoepke, 123 Wis. 19, 100 N.
W. 1056. To proceed against a public officer for
crime or misfeasance, before a proper court, by
the presentation of a written accusation called
"articles of impeachment."
In the Law of Evidence. To call in question the
veracity of a witness, by means of evidence ad-
duced for that purpose, or the adducing of proof
that a witness is unworthy of belief. Johnston v.
Belk-McKnight Co. of Newberry, 188 S.C. 149, 198
S.E. 395, 399.
IMPEACHMENT. A criminal proceeding against
a public officer, before a quasi political court, in-
stituted by a written accusation called "articles
of impeachment;" for example, a written accusa-
tion by the house of representatives of the United
States to the senate of the United States against
an officer.
"Impeachment" of the Governor, within the meaning of
section 16, art. 6, of the Constitution, is the adoption of
articles of impeachment by the House of Representatives,
and the presentation thereof to the Senate, and the indica-
tion by that body that the same are accepted for the pur-
pose of permitting prosecution thereof, and the impeach-
ment of the Governor operates to suspend him; the duties
and emoluments of the office automatically devolving upon
the Lieutenant Governor for the remainder of the term or
until the disability is removed by the acquittal of the Gov-
ernor of the charges preferred against him. State v. Cham-
bers, 96 Okl. 78, 220 P. 890, 891, 30 A.L.R. 1144; People
ex rel. Robin v. Hayes, 143 N.Y.S. 325, 329, 82 Misc. 165.
In England, a prosecution by the house of commons
before the house of lords of a commoner for treason, or
other high crimes and misdemeanors, or of a peer for any
crime.
Evidence
The adducing of proof that a witness is un-
worthy of belief. State v. Roybal, 33 N.M. 540,
273 P. 919, 922.
General
Articles of impeachment. The formal written
allegation of the causes for an impeachment, an-
swering the same purpose as an indictment in an
ordinary criminal proceeding.
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IMPERTINENT
Collateral impeachment. See Collateral attack.
Impeachment of annuity. A term sometimes
used in English law to denote anything that op-
erates as a hindrance, impediment or obstruction
of the making of the profits out of which the an-
nuity is to arise. Pitt v. Williams, 4 Adol. & El.
885.
Impeachment of waste. Liability for waste com-
mitted; or a demand or suit for compensation for
waste committed upon lands or tenements by a
tenant thereof who, having only a leasehold or
particular estate, had no right to commit waste.
2 Bl. Comm. 283; Sanderson v. Jones, 6 Fla. 480,
63 Am.Dec. 217.
Impeachment of witness. Adducing proof that a
witness who has testified in a cause is unworthy
of credit. White v. Railroad Co., 142 Ind. 648, 42
N.E. 456.
IMPECHIARE. To impeach, to accuse, or prose-
cute for felony or treason.
IMPEDE. To obstruct; hinder; check; delay.
Erie R. Co. v. Board of Public Utility Com'rs, 98 A.
13, 19, 89 N.J.L. 57.
IMPEDIATUS. Disabled from mischief by ex-
peditation (q. v.). Cowell.
IMPEDIENS. In old practice. One who hinders;
an impedient. The defendant or deforciant in a
fine was sometimes so called. Cowell; Blount.
IMPEDIMENTO. In Spanish law. A prohibition
to contract marriage, established by law between
certain persons.
IMPEDIMENTS. Disabilities, or hindrances to
the making of contracts, such as coverture, in-
fancy, want of reason, etc.
In the Civil Law. Bars to marriage.
Absolute impediments are those which prevent
the person subject to them from marrying at all,
without either the nullity of marriage or its being
punishable. Dirimant impediments are those
which render a marriage void; as where one of
the contracting parties is unable to marry by rea-
son of a prior undissolved marriage. Prohibitive
impediments are those which do not render the
marriage null, but subject the parties to a punish-
ment. Relative impediments are those which re-
gard only certain persons with respect to each
other; as between two particular persons who are
related within the prohibited degrees. Bowyer,
Mod. Civil Law, 44, 45.
IMPEDITOR. In old English law. A disturber in
the action of quare impedit. St. Marlb. c. 12.
IMPENSIE. Lat. In the civil law. Expenses;
outlays. Mackeld. Rom. Law, § 168; Calvin. Di-
vided into necessary, (necessaries,) useful, (util-
es,) and tasteful or ornamental, (voluptuarice.)
Dig. 50, 16, 79. See Id. 25, 1.
IMPERATIVE. Mandatory. See Directory.
IMPERATOR. Emperor. The title of the Roman
emperors, and also of the Kings of England be-
fore the Norman conquest. Cod. 1, 14, 12; 1 BL
Comm. 242. See Emperor.
IMPERFECT. As used in various legal compound
terms, this word means defective or incomplete;
wanting in some legal or formal requisite; want-
ing in legal sanction or effectiveness; as in speak-
ing of imperfect "obligations," "ownership,"
"rights," "title," "usufruct," or "war." See those
nouns.
IMPERII MAJESTAS EST TUTELIE SALUS.
Co. Litt. 64. The majesty of the empire is the
safety of its protection.
IMPERITIA. Lat. Unskillfulness; want of skill.
IMPERITIA CULP1E ADNUMERATUR. Want
of skill is reckoned as culpa; that is, as blamable
conduct or neglect. Dig. 50, 17, 132.
IMPERITIA EST MAXIMA MECHANICORUM
PCENA. Unskillfulness is the greatest punish-
ment of mechanics; [that is, from its effect in
making them liable to those by whom they are em-
ployed.] 11 Coke, 54a. The word "pcena" in some
translations is erroneously rendered "fault."
IMPERIUM. The right to command, which in-
cludes the right to employ the force of the state
to enforce the laws. This is one of the principal
attributes of the power of the executive. 1 Toul-
lier, no. 58.
IMPERSONALITAS. Lat. Impersonality. A
mode of expression where no reference is made to
any person, such as the expression "ut dicitur,"
(as is said.) Co. Litt. 352b.
IMPERSONALITAS NON CONCLUDIT NEC
LIGAT. Co. Litt. 352 b. Impersonality neither
concludes nor binds.
IMPERTINENCE. Irrelevancy; the fault of not
properly pertaining to the issue or proceeding.
The introduction of any matters into a bill, an-
swer, or other pleading or proceeding in a suit,
which are not properly before the court for de-
cision, at any particular stage of the suit. Story,
Eq. Pl. § 266; Harrison v. Perea, 18 S.Ct. 129, 168
U.S. 311, 42 L.Ed. 478.
In Practice. A question propounded to a wit-
ness, or evidence offered or sought to be elicited,
is called "impertinent" when it has no logical bear-
ing upon the issue, is not necessarily connected
with it, or does not belong to the matter in hand.
1 Whart. Ev. § 20.
On the distinction between pertinency and relevancy, we
may quote the following remark of Dr. Wharton : "Rele-
vancy is that which conduces to the proof of a pertinent
hypothesis ; a pertinent hypothesis being one which, if
sustained, would logically influence the issue."
IMPERTINENT. In Equity Pleading. That
which does not belong to a pleading, interrogatory,
or other proceeding; out of place; superfluous;
irrelevant. Chew v. Eagan, 87 N.J.Eq. 80, 99 A.
611; Bean v. Central Maine Power Co., 133 Me. 9,
173 A. 498, 501.
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IMPERTINENT
At Law. A term applied to matter not neces-
sary to constitute the cause of action or ground
of defense. Cowp. 683; 5 East, 275; Tucker v.
Randall, 2 Mass. 283. It constitutes surplusage,
(which see.)
IMPESCARE. In old records. To impeach or ac-
cuse. Impescatus, impeached. Blount.
IMPETITIO VASTI. Impeachment of waste, (q.
v.)
IMPETRARE. In old English practice. To ob-
tain by request, as a writ or privilege. Bract. fols.
57, 172b. This application of the word seems to be
derived from the civil law. Calvin.
IMPETRATION. In old English law. The obtain-
ing anything by petition or entreaty. Particularly,
the obtaining of a benefice from Rome by solicita-
tion, which benefice belonged to the disposal of
the king or other lay patron. Webster; Cowell.
IMPIER. Umpire (q. v.).
IMPEERMENT. Impairing or prejudicing. Jacob.
IMPIGNORATA. Pledged; given in pledge, (pig-
nori data;) mortgaged. A term applied in Brac-
ton to land. Bract. fol. 20.
IMPIGNORATION. The act of pawning or put-
ting to pledge.
IMPIUS ET CRUDELIS JUDICANDUS EST QUI
LIBERTATI NON FAVET. He is to be judged
impious and cruel who does not favor liberty. Co.
Litt. 124.
IMPLACITARE. Lat. To implead; to sue.
EVIPLEAD. In practice. To sue or prosecute by
due course of law. People v. Clarke, 9 N.Y. 368.
IMPLEADED. Sued or prosecuted; used partic-
ularly in the titles of causes where there are sev-
eral defendants; as "A. B., impleaded with C. D."
IMPLEMENTS. Such things as are used or em-
ployed for a trade, or furniture of a house. What-
ever may supply wants; particularly applied to
tools, utensils, vessels, instruments of labor; as,
the implements of trade or of husbandry. God-
dard v. Chaffee, 2 Allen (Mass.) 395, 79 Am.Dec.
796. Mississippi Road Supply Ca. v. Hester, 185
Miss. 839, 188 So. 281, 287, 124 A.L.R. 574.
IMPLICATA. A term used in mercantile law, de-
rived from the Italian. In order to avoid the risk
of making fruitless voyages, merchants have been
in the habit of receiving small adventures, on
freight, at so much per cent, to which they are
entitled at all events, even if the adventure be
lost; and this is called "implicata." Wharton.
IMPLICATION. Intendment or inference, as dis-
tinguished from the actual expression of a thing
in words. In a will, an estate may pass by mere
implication, without any express words to direct
its course. 2 Bl. Comm. 381.
An inference of something not directly declared, but
arising from what is admitted or expressed.
In construing a will conjecture must not be taken for
implication; but necessary implication means, not natural
necessity, but so strong a probability of intention that an
intention contrary to that which is imputed to the testator
cannot be supposed. 1 Ves. & B. 466.
"Implication" is also used in the sense of "in-
ference;"  e., where the existence of an inten-
tion is inferred from acts not done for the sole
purpose of communicating it, but for some other
purpose. Sweet.
Necessary implication
In construing a will, necessary implication means not
natural necessity, but so strong a probability of intention
that an intention contrary to that which is imputed to the
testator cannot be supposed. Wilkinson v. Adam, 1 Ves. &
B. 466; Gilbert v. Craddock, 67 Kan. 346, 72 P. 869.
IMPLIED. This word is used in law as contrasted
with "express;"  e., where the intention in re-
gard to the subject-matter is not manifested by
explicit and direct words, but is gathered by im-
plication or necessary deduction from the circum-
stances, the general language, or the conduct of
the parties.
As to implied "Abrogation," "Agreement," "As-
sumpsit," "Condition," "Confession," "Consent,"
"Consideration," "Contract," "Covenant," "Dedica-
tion," "Easement," "Invitation," "Malice," "No-
tice," "Obligation," "Powers," "Trust," "Use,"
"Waiver," and "Warranty," see those titles.
IMPORTATION. The act of bringing goods and
merchandise into a country from a foreign coun-
try. Cunard Steamship Co. v. Mellon, 43 S.Ct. 504,,
262 U.S. 100, 67 L.Ed. 894, 27 A.L.R. 1306.
IMPORTED. This word, in general, has the same
meaning in the tariff laws that its etymology
shows, in porto, to carry in. To "import" is to
bear or carry into. An "imported" article is one
brought or carried into a country from abroad.
The Conqueror, 49 Fed. 99. See Imports.
IMPORTS. Importations; goods or other prop-
erty imported or brought into the country from a
foreign country.
IMPORTUNITY. Pressing solicitation; urgent
request; application for a claim or favor which is
urged with troublesome frequency or pertinacity.
Webster.
IMPOSE. To levy or exact as by authority; to
lay as a burden, tax, duty or charge. State v.
Nickerson, 97 Neb. 837, 151 N.W. 981, 982.
IMPOSITION. An impost; tax; contribution.
Paterson v. Society, 24 N.J.L. 400; Singer Mfg. Co.
v. Heppenheimer, 58 N.J.L. 633, 34 A. 1061, 32 L.
R.A. 643; Town of Brandon v. Harvey, 105 Vt.
435, 168 A. 708, 710.
IMPOSSIBILITY. That which, in the constitution
and course of nature or the law, no man can do
or perform. Klauber v. San Diego Street-Car Co.,
95 Cal. 353, 30 P. 555.
Impossibility of performance of contract, absolving party
from liability for nonperformance, means not only strict
impossibility, but impracticability because of extreme arid
unreasonable difficulty, expense, injury or loss involved.
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IMPRISONMENT
Fisher v. United States Fidelity & Guaranty Co., 313 Ill.
App. 66, 39 N.E.2d 67, 70; Transbay Const. Co. v. City and
County of San Francisco, D.C.Cal., 35 F.Supp. 433, 436.
impossibie contract. One which the law will not hold
binding upon the parties, because of the natural or legal
impossibility of the performance by one party of that
which is the consideration for the promise of the other.
7 Wait, Act. & Def. 124.
Impossible contracts, which will be deemed void in the
eye of the law, or of which the performance will be
excused, are such contracts as cannot be performed, either
because of the nature of the obligation undertaken, or
because of some supervening event which renders the per-
formance of the obligation either physically or legally
impossible. 10 Amer. & Eng.Enc.Law, 176.
Impossibility is of the following several sorts:
An act is physically impossible when it is con-
trary to the course of nature. Such an impossi-
bility may be either absolute, i. e., impossible in
any case, (e. g., to stop earth rotation) or rela-
tive, (sometimes called "impossibility in fact")
i. e., arising from the circumstances of the case,
(e. g., for A. to make a payment to B., he being
a deceased person.) To the latter class belongs
what is sometimes called "practical impossibili-
ty," which exists when the act can be done, but
only at an excessive or unreasonable cost. An
act is legally or juridically impossible when a rule
of law makes it impossible to do it; e. g., for A.
to make a valid will before his majority. This
class of acts must not be confounded with those
which are possible, although forbidden by law, as
to commit a theft. An act is logically impossible
when it is contrary to the nature of the transac-
tion, as where A. gives property to B. expressly
for his own benefit, on condition that he transfers
it to C. Sweet.
IMPOSSIBILIUM NULLA OBLIGATIO EST.
There is no obligation to do impossible things.
Dig. 50, 17, 185; Broom, Max. 249.
IMPOSTS. Taxes, duties, or impositions levied
for divers reasons. Crew Levick Co. v. Common-
wealth of Pennsylvania, 38 S.Ct. 126, 245 U.S.
292, 62 L.Ed. 295.
Impost is a tax received by the prince for such merchan-
dises as are brought into any haven within his dominions
from foreign nations. It may in some sort be distinguished
from customs, because customs are rather that profit the
prince maketh of wares shipped out; yet they are fre-
quently confounded. Cowell.
IMPOTENCE. In medical jurisprudence.  In-
ability to copulate. Properly used of the male;
but it has also been used synonymously with
"sterility." Smith v. Smith, 206 Mo.App. 646, 229
S.W. 398; Heinemann v. Heinemann, 118 Or. 178,
245 P. 1082, 1083.
Impotency as a ground for divorce means want of poten-
tia copulandi or incapacity to consummate the marriage,
and not merely incapacity for procreation. Reed v. Reed,
26 Tenn.App. 690, 177 S.W.2d 26, 27.
IMPOTENTIA EXCUSAT LEGEM. Co.Litt. 29.
The impossibility of doing what is required by
the law excuses from the performance.
IMPOTENTIAM, PROPERTY PROPTER. A
qualified property, which may subsist in animals
ferce naturce on account of their inability, as
where hawks, herons, or other birds build in a
person's trees, or conies, etc., make their nests or
burrows in a person's land, and have young there,
such person has a qualified property in them till
they can fly or run away, and then such property
expires. 2 Steph.Comm. (7th Ed.) 8.
IMPOUND. To shut up stray animals or distrain-
ed goods in a pound. Chenango County Humane
Soc. v. Polmatier, 177 N.Y.S. 101, 103, 188 App.Div.
419. To take into the custody of the law or of a
court. Thus, a court will sometimes impound a
suspicious document produced at a trial.
IMPRESCRIPTIBILITY. The state or quality of
being incapable of prescription; not of such a
character that a right to it can be gained by pre-
scription.
IMPRESCRIPTIBLE RIGHTS. Such rights as a
person may use or not, at pleasure, since they
cannot be lost to him by the claims of another
founded on prescription.
IMPRESSION, CASE OF FIRST. One without a
precedent; one presenting a wholly new state of
facts; one involving a question never before de-
termined.
IMPRESSMENT. A power possessed by the Eng-
lish crown of taking persons or property to aid
in the defense of the country, with or without the
consent of the persons concerned. It is usually
exercised to obtain hands for the royal ships in
time of war, by taking seamen engaged in mer-
chant vessels, (1 Bl.Comm. 420; Maud & P. Shipp.
123;) but in former times impressment of mer-
chant ships was also practiced. The admiralty is-
sues protections against impressment in certain
cases, either under statutes passed in favor of cer-
tain callings (e. g., persons employed in the Green-
land fisheries) or voluntarily. Sweet.
IMPREST MONEY. Money paid on enlisting or
impressing soldiers or sailors.
IMPRETIABILIS. Lat. Beyond price; invalu-
able.
IMPRIMATUR. Lat. Let it be printed. A li-
cense or allowance, granted by the constituted au-
thorities, giving permission to print and publish a
book. This allowance was formerly necessary, in
England, before any book could lawfully be print-
ed, and in some other countries is still required.
IMPRIMERE. To press upon; to impress or
press; to imprint or print.
IMPRIMERY. In some of the ancient English
statutes this word is used to signify a printing-
office, the art of printing, a print or impression.
IMPRIMIS. Lat. In the first place; first of all.
IMPRISON. To put in a prison; to put in a place
of confinement. To confine a person, or restrain
his liberty, in any way.
IMPRISONMENT. The act of putting or confin-
ing a man in prison; the restraint of a man's per-
sonal liberty; coercion exercised upon a person
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IMPRISONMENT
to prevent the free exercise of his powers of lo-
comotion. State v. Shaw, 73 Vt. 149, 50 A. 863.
It is not a necessary part of the definition that the con-
finement should be in a place usually appropriated to that
purpose; it may be in a locality used only for the specific
occasion; or it may take place without the actual applica-
tion of any physical agencies of restraint, (such as locks or
bars,) but by verbal compulsion and the display of avail-
able force. Pike v. Hanson, 9 N.H. 491. Every confinement
of the person is an "imprisonment," whether it be in a
common prison, or in a private house, or in the stocks, or
even by forcibly detaining one in the public streets. Nor-
ton v. Mathers, 222 Iowa 1170, 271 N.W. 321, 324.
False imprisonment
The unlawful arrest or detention of a person without
warrant, or by an illegal warrant, or a warrant illegally
executed, and either in a prison or a place used temporarily
for that purpose, or by force and constraint without con-
finement. Eberling v. State, 136 Ind. 117, 35 N.E. 1023.
False imprisonment consists in the unlawful detention of
the person of another, for any length of time, whereby he
is deprived of his personal liberty. Mahan v. Adam, 144
Md. 355, 124 A. 901, 904. The unlawful detention of the
occupant of an automobile may be accomplished by driv-
ing so rapidly that he cannot alight. Blashfleld, Cyc. of
Automobile Law and Prac., Perm.Ed., § 5528.26.
The term is also used as the name of the action which
lies for this species of injury. 3 Bl.Comm. 138; Buttrey v.
Wilhite, 208 Ala 573. 94 So. 585; Christ v. McDonald, 152
Or. 494, 52 P.2d 655, 658.
IMPRISTI. Adherents; followers. Those who
side with or take the part of another, either in his
defense or otherwise.
IMPROBABLE. Unlikely to be true, or to occur,
not to be readily believed. Johnson v. Tregle, La.
App., 8 So.2d 755, 758.
IMPROBATION. In Scotch law. An action
brought for the purpose of having some instru-
ment declared false and forged. 1 Forb.Inst. pt.
4, p. 161. The verb "improve" (q, v.) was used in
the same sense.
IMPROPER. Not suitable; unfit; not suited to
the character, time, and place. Godbey v. Godbey,
70 Ohio App. 455, 44 N.E.2d 810, 813.
IMPROPER CUMULATION OF ACTIONS. An
attempt to join in one proceeding inconsistent
causes of action. Toms v. Nugent, La.App., 12
So.2d 713, 715.
IMPROPER FEUDS. These were derivative
feuds; as, for instance, those that were original-
ly bartered and sold to the feudatory for a price,
or were held upon base or less honorable services,
or upon a rent in lieu of military service, or were
themselves alienable, without mutual license, or
descended indifferently to males or females.
Wharton.
IMPROPER INFLUENCE. Undue influence (q.
v.) Millican v. Millican, 24 Tex. 446.
IMPROPER NAVIGATION. Anything improper-
ly done with the ship or part of the ship in the
course of the voyage. L.R. 6 C.P. 563. See, also,
53 Law J.P.D. 65.
IMPROPRIATION. In ecclesiastical law. The
annexing an ecclesiastical benefice to the use of
a lay person, whether individual or corporate, in
the same way as appropriation is the annexing of
any such benefice to the proper and perpetual use
of some spiritual corporation, whether sole or ag-
gregate, to enjoy forever. Brown.
IMPROPRIATE RECTOR. In ecclesiastical law.
Commonly signifies a lay rector as opposed to a
spiritual rector; just as impropriate tithes are
tithes in the hands of a lay owner, as opposed to
appropriate tithes, which are tithes in the hands
of a spiritual owner. Brown.
IMPROVE. In Scotch law. To disprove; to in-
validate or impeach; to prove false or forged. 1
Forb. Inst. pt. 4, p. 162.
To improve a lease means to grant a lease of
unusual duration to encourage a tenant, when the
soil is exhausted, etc. Bell; Stair, Inst. p. 676, §
23.
To meliorate, make better, to increase the value
or good qualities of, mend, repair, as to "improve"
a street by grading, parking, curbing, paving, etc.
State ex rel. County of Ramsey v. Babcock, 186
Minn, 132, 242 N.W. 474, 476.
IMPROVED. Improved land is such as has been
reclaimed, is used for the purpose of husbandry,
and is cultivated as such, whether the appropria-
tion is for tillage, meadow, or pasture. "Improve"
is synonymous with "cultivate." Clark v. Phelps,
4 Cow. (N.Y.) 190.
IMPROVEMENT. A valuable addition made to
property (usually real estate) or an amelioration
in its condition, amounting to more than mere re-
pairs or replacement of waste, costing labor or
capital, and intended to enhance its value, beauty
or utility or to adapt it for new or further pur-
poses. Spencer v. Tobey, 22 Barb., N.Y., 269; Al-
len v. McKay, 120 Cal. 332, 52 P. 828.
In American land law. An act by which a loca-
tor or settler expresses his intention to cultivate
or clear certain land; an act expressive of the ac-
tual possession of land; as by erecting a cabin,
planting a corn-field, deadening trees in a forest;
or by merely marking trees, or even by piling up
a brush-heap. Burrill. In re Leet Tp. Road, 159
Pa. 72, 28 A. 238.
An "improvement," under our land system, does not
mean a general enhancement of the value of the tract from
the occupant's operations. It has a more limited meaning,
which has in view the population of our forests, and the
increase of agricultural products. All works which are
directed to the creation of homes for families, or are sub-
stantial steps towards bringing lands into cultivation, have
in their results the special character of "improvements,"
and, under the land laws of the United States and of the
several states, are encouraged. Sometimes their minimum
extent is defined as requisite to convey rights. In other
cases not. But the test. which runs through all the cases
is always this : Are they real, and made bona fide, in
accordance with the policy of the law, or are they only
colorable, and made for the purpose of fraud and specula-
tion? Simpson v. Robinson, 37 Ark. 137.
In the law of patents. An addition to, or mod-
ification of, a previous invention or discovery, in-
tended or claimed to increase its utility or value.
2 Kent, Comm. 366-372. Steiner Sales Co. v.
Schwartz Sales Co., C.C.A.Utah, 98 F.2d 999, 1010.
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IN IEQUALI
It includes two necessary ideas: the idea of a
complete and practical operative art or instru-
ment and the idea of some change in such art or
instrument not affecting its essential character
but enabling it to produce its appropriate results
in a more perfect or economical manner. Rob.
Pat. § 210.
Local improvement. See Local Improvement.
IMPROVEMENTS. A term used in leases, of
doubtful meaning. It would seem to apply prin-
cipally to buildings, though generally it extends
to the amelioration of every description of prop-
erty, whether real or personal; but, when con-
tained in any document, its meaning is generally
explained by other words. 1 Chit. Gen. Pr. 174.
IMPROVIDENCE. As used in a statute exclud-
ing one found incompetent to execute the duties
of an administrator by reason of improvidence,
means that want of care and foresight in the man-
agement of property which would be likely to ren-
der the estate and effects of the intestate unsafe,
and liable to be lost or diminished in value, in case
the administration should be committed to the
improvident person. In re Fulper's Estate, 99 N.
J.Eq. 293, 132 A. 834, 843.
IMPROVIDENTLY. A judgment, decree, rule,
injunction, etc., when given or rendered without
adequate consideration by the court, or without
proper information as to all the circumstances af-
fecting it, or based upon a mistaken assumption
or misleading information or advice, is sometimes
said to have been "improvidently" given or issued.
IMPRUIARE. In old records. To improve land.
Impruiamentum, the improvement so made of it.
Cowell.
IMPUBES. Lat. In the civil law. A minor un-
der the age of puberty; a male under fourteen
years of age; a female under twelve. Calvin.;
Mackeld.Rom.Law, § 138.
IMPULSE. As to "irresistible" or "uncontrol-
lable" impulse, see Insanity.
IMPUNITAS CONTINUUM AFFECTUM TRIBU-
IT DELINQUENDI. 4 Coke, 45. Impunity con-
firms the disposition to commit crime.
IMPUNITIES SEMPER AD DETERIORA IN-
VITAT. 5 Coke, 109. Impunity always invites
to greater crimes.
IMPUNITY. Exemption or protection from pen-
alty or punishment. Dillon v. Rogers, 36 Tex. 153.
IMPUTATIO. Lat. In the civil law. Legal lia-
bility.
IMPUTATION OF PAYMENT. In the civil law.
The application of a payment made by a debtor
to his creditor.
IMPUTED. As used in legal phrases, this word
means attributed vicariously; that is, an act, fact,
or quality is said to be "imputed" to a person
when it is ascribed or charged to him, not because
he is personally cognizant of it or responsible for
it, but because another person is, over whom he
has control or for whose acts or knowledge he is
responsible.
IMPUTED KNOWLEDGE. This phrase is some-
times used as equivalent to "implied notice," i. e.,
knowledge attributed or charged to a person (of-
ten contrary to the fact) because the facts in ques-
tion were open to his discovery and it was his duty
to inform himself as to them. Roche v. Llewellyn
Iron Works Co., 140 Cal. 563, 74 P. 147.
IMPUTED NEGLIGENCE. Negligence which is
not directly attributable to the person himself, but
which is the negligence of a person who is in priv-
ity with him, and with whose fault he is charge-
able. Smith v. Railroad Co., 38 N.Y.S. 666, 4 App.
Div. 493.
IMPUTED NOTICE. Information as to a given
fact or circumstance charged or attributed to a
person, and affecting his rights or conduct on the
ground that actual notice was given to some per-
son whose duty was to report it to the person to
be affected, as, his agent or his attorney of record.
IN. In the law of real estate, this preposition has
always been used to denote the fact of seisin, ti-
tle, or possession, and apparently serves as an
elliptical expression for some such phrase as "in
possession," or as an abbreviation for "intitled" or
"invested with title." Thus, in the old books, a
tenant is said to be "in by lease of his lessor."
Litt. § 82.
An elastic preposition in other cases, expressing
relation of presence, existence, situation, inclu-
sion, action, etc.; inclosed or surrounded by limits,
as in a room; also meaning for, in and about, on,
within, etc., according to context. Ex parte Perry,
71 Fla. 250, 71 So. 174, 176. Rester v. Moody &
Stewart, 172 La. 510, 134 So. 690, 692.
IN ACTION. Attainable or recoverable by action;
not in possession. A term applied to property of
which a party has not the possession, but only a
right to recover it by action. Things in action are
rights of personal things, which nevertheless are
not in possession. See Chose in Action.
IN ADVERSUM. Against an adverse, unwilling,
or resisting party. "A decree not by consent, but
in adversum." 3 Story, 318.
IN ZEDIFICIIS LAPIS MALE POSITUS NON
EST REMOVENDUS. 11 Coke, 69. A stone bad-
ly placed in buildings is not to be removed.
IN IEQUA MANU. In equal hand. Fleta, lib. 3,
c. 14, § 2.
IN ,EQUALI JURE. In equal right; on an equal-
ity in point of right.
IN LEQUALI JURE MELIOR EST CONDITIO
POSSIDENTIS. In [a case of] equal right the
condition of the party in possession is the better
Plowd. 296; Broom, Max. 713.
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IN ZEQUALI
IN ZEQUALI MANU. In equal hand; held equal-
ly or indifferently between two parties. Where an
instrument was deposited by the parties to it in
the hands of a third person, to keep on certain
conditions, it was said to be held in cequali mane.
Reg. Orig. 28.
IN ALIENO SOLO. In another's land. 2 Steph.
Comm. 20.
IN ALIO LOCO. In another place.
IN ALTA PRODITIONE NULLUS POTEST ESSE
ACCESSORIUS SED PRINCIPALIS SOLUMMO-
DO. 3 Inst. 138. In high treason no one can be
an accessary but only principal.
IN ALTERNATIVIS ELECTIO EST DEBITORIS.
In alternatives the debtor has the election.
IN AMBIGUA VOCE LEGIS EA POTIUS ACCI-
PIENDA EST SIGNIFICATIO QUIE VITIO
CARET, PRIESERTIM CUM ETIAM VOLUNTAS
LEGIS EX HOC COLLIGI POSSIT. In an am-
biguous expression of law, that signification is to
be preferred which is consonant with equity, es-
pecially when the spirit of the law can be collected
from that. Dig. 1, 3, 19; Broom, Max. 576.
IN AMBIGUIS CASIBUS SEMPER PRAESUMI-
TUR PRO REGE. In doubtful cases the presump-
tion is always in favor of the king.
IN AMBIGUIS ORATIONIBUS MAXIME SEN-
TENTIA SPECTANDA EST EJUS QUI EAS PRO-.
TULISSET. In ambiguous expressions, the inten-
tion of the person using them is chiefly to be re-
garded. Dig. 50, 17, 96; Broom, Max. 567.
IN AMBIGUO. In doubt.
IN AMBIGUO SERMONE NON UTRUMQUE DI-
CIMUS SED ID DUNTAXAT QUOD VOLUMUS.
When the language we use is ambiguous, we do
not use it in a double sense, but in the sense in
which we mean it. Dig. 34. 5. 3; 2 De G. M. & G.
313.
IN ANGLIA NON EST INTERREGNUM. In Eng-
land there is no interregnum. Jenk. Cent. 205;
Broom, Max. 50.
IN APERTA LUCE. In open daylight; in the
day-time. 9 Coke, 65b.
IN APICIBUS JURIS. Among the subtleties or
extreme doctrines of the law. 1 Kames, Eq. 190.
See Apex Juris.
IN ARBITRIUM JUDICIS. At the pleasure of the
judge.
IN ARCTA ET SALVA CUSTODIA. In close and
safe custody. 3 Bl.Comm. 415.
IN ARTICULO. In a moment; immediately. Cod.
1, 34, 2.
IN ARTICULO MORTIS. In the article of death;
at the point of death. Jackson v. Vredenbergh,
1 Johns. (N.Y.) 159.
IN ATROCIORIBUS DELICTIS PUNITUR AF-
FECTUS LICET NON SEQUATUR EFFECTUS.
2 Rolle R. 82. In more atrocious crimes the in-
tent is punished, though an effect does not follow.
IN AUTRE DROIT. L. Fr. In another's right.
As representing another. An, executor, adminis-
trator, or trustee sues in autre droit.
IN BANCO. In bank; in the bench. A term ap-
plied to proceedings in the court in bank, as dis-
tinguished from the proceedings at nisi prius.
Also, in the English court of common bench.
IN BEING. In existence or life at a given mo-
ment of time, as, in the phrase "life or lives in
being" in the rule against perpetuities. An unborn
child may, in some circumstances be considered
as "in being." Phillips v. Herron, 55 Ohio St. 478,
45 N.E. 720.
IN BLANK. A term applied to the indorsement
of a bill or note where it consists merely of the
indorser's name, without restriction to any parti-
cular indorsee. 2 Steph.Comm. 164.
IN BONIS. Among the goods or property; in
actual possession. Inst. 4, 2, 2. In bonis defuncti,
among the goods of the deceased.
IN BULK. As a whole; as an entirety, without
division into items or physical separation in pack-
ages or parcels. Standard Oil Co. v. Corn., 119
Ky. 75, 82 S.W. 1022.
IN CAHOOTS. Jointly interested in property, or
common participants in enterprise. Clark v. State,
154 Miss. 457, 122 So. 534.
IN CAMERA. In chambers; in private. A cause
is said to be heard in camera either when the
hearing is had before the judge in his private
room or when all spectators are excluded from
the courtroom.
IN CAPITA. To the heads; by heads or polls.
Persons succeed to an inheritance in capita when
they individually take equal shares. So challenges
to individual jurors are challenges in capita, as
distinguished from challenges to the array.
IN CAPITE. In chief. 2 Bl.Comm. 60. Tenure
in capite was a holding directly from the king.
IN CASE. If, in the event. Barmore v. Darragh,
Tex.Civ.App., 231 S.W. 472, 478.
IN CASU EXTREME NECESSITATIS OMNIA
SUNT COMMUNIA. Hale, P. C. 54. In cases of
extreme necessity, everything is in common.
IN CASU PROVISO. In a (or the) case provided.
In tali casu editum et provisum, in such case made
and provided. Townsh. P1.164, 165.
IN CAUSA. In the cause, as distinguished from
in initialibus (q. v.) A term in Scotch practice.
1 Brown, Ch. 252.
IN CHARGE OF. Means in the care or custody
of, or intrusted to the management or direction
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IN DIEM
of. Sky v. Keystone Mut. Casualty Co., 150 Pa.
Super. 613, 29 A.2d 230, 232.
IN CHIEF. Principal; primary; directly ob-
tained. A term applied to the evidence obtained
from a witness upon his examination in court by
the party producing him.
Tenure in chief, or in capite, is a holding di-
rectly of the king or chief lord.
IN CIVILIBUS MINISTERIUM EXCUSAT, IN
CRIMINALIBUS NON ITEM. In civil matters
agency (or service) excuses, but not so in criminal
matters. Lofft, 228; Tray. Lat. Max. 243.
IN CLARIS NON EST LOCUS CONJECTURIS.
In things obvious there is no room for conjecture.
IN COMMENDAM. In commendation; as a com-
mended living. 1 Bl.Comm. 393. See Commenda.
A term applied in Louisiana to a limited part-
nership, answering to the French "en comman-
dite." Civil Code La. art. 2810.
IN COMMODATO IIEC PACTIO, NE DOLUS
PRJESTETUR, RATA NON EST. In the contract
of loan, a stipulation not to be liable for fraud is
not valid. Dig. 13, 7, 17, pr.
IN COMMON. Shared in respect to title, use, or
enjoyment, without apportionment or division into
individual parts; held by several for the equal
advantage, use, or enjoyment of all. Hewit v.
Jewell, 59 Iowa 37, 12 N.W. 738.
IN CONLMUNI. In common. Fleta, lib. 3, c. 4, § 2.
IN CONJUNCTION WITH. In association with.
Blaisdell v. Inhabitants of Town of York, 110 Me.
500, 87 A. 361, 370.
IN CONJUNCTIVIS, OPORTET UTRAMQUE
PARTEM ESSE VERAM. In conjunctives it is
necessary that each part be true. Wing, Max. 13,
max. 9. In a condition consisting of divers parts
in the copulative, both parts must be performed.
IN CONSIDERATIONE INDE. In consideration
thereof. 3 Salk. 64, pl. 5.
IN CONSIDERATIONE LEGIS. In consideration
or contemplation of law; in abeyance. Dyer, 102b.
IN CONSIDERATIONE PRZEMISSORUM. In
consideration of the premises. 1 Strange, 535.
IN CONSIMILI CASU. See Consimili Casu.
IN CONSIMILI CASU, CONSIMILE DEBET ESSE
REMEDIUM. Hardr. 65. In a similar case the
remedy should be similar.
IN CONSPECTU EJUS. In his sight or view. 12
Mod. 95.
IN CONSUETUDINIBUS, NON DIUTURNITAS
TEMPORIS SED SOLIDITAS RATIONIS EST
CONSIDERANDA. In customs, not length of
time, but solidity of reason, is to be considered.
Co. Litt. 141a. The antiquity of a custom is to be
less regarded than its reasonableness.
IN CONTINENTI. Immediately; without any in-
terval or intermission. Calvin. Sometimes writ-
ten as one word "incontinenti."
IN CONTRACTIBUS, BENIGNA; IN TESTA-
MENTIS, BENIGNIOR; IN RESTITUTIONIBUS,
BENIGNISSIMA INTERPRETATIO FACIENDA
EST. Co. Litt. 112. In contracts, the interpreta-
tion is to be liberal; in wills, more liberal; in
restitutions, most liberal.
IN CONTRACTIBUS, REI VERITAS POTIUS
QUAM SCRIPTURA PERSPICI DEBET. In con-
tracts, the truth of the matter ought to be regard-
ed rather than the writing. Cod. 4, 22, 1.
IN CONTRACTIBUS, TACITE INSUNT EVEN-
EUNT] QUIE SUNT MORIS ET CONSUETUD-
INIS. In contracts, matters of custom and usage
are tacitly implied. A contract is understood to
contain the customary clauses, although they are
not expressed. Story, Bills, § 143; 3 Kent, Comm.
260, note; Broom, Max. 842.
IN CONTRAHENDA VENDITIONE, AMBIGUUM
PACTUM CONTRA VENDITOREM INTERPRE-
TANDUM EST. In the contract of sale, an am-
biguous agreement is to be interpreted against
the seller. Dig. 50, 17, 172. See Id. 18, 1, 21.
IN CONVENTIONIBUS, CONTRAHENTIUM
VOLUNTAS POTIUS QUAM VERBA SPECTARI
PLACUIT. In agreements, the intention of the
contracting parties, rather ti- an the words used,
should be regarded. Broom, Max. 551; Jackson
v. Wilkinson, 17 Johns. (N.Y.) 150.
IN CORPORE. In body or substance; in a mater-
ial thing or object.
IN CRASTINO. On the morrow. In crastino Ani-
marum, on the morrow of All Souls. 1 Bl.Comm.
342.
IN CRIMINALIBUS, PROBATIONES DEBENT
ESSE LUCE CLARIORES. In criminal cases, the
proofs ought to be clearer than light. 3 Inst. 210.
IN CRIMINALIBUS, SUFFICIT GENERALIS
MALITIA INTENTIONIS, CUM FACTO PARIS
GRADUS. In criminal matters or cases, a general
malice of intention is sufficient, Cif united] with
an act of equal or corresponding degree. Bac.
Max. p. 65, reg. 15; Broom, Max. 323.
IN CRIMINALIBUS, VOLUNTAS REPUTABITUR
PRO FACTO. In criminal acts, the will will be
taken for the deed. 3 Inst. 106.
IN CUJUS REI TESTIMONIUM. In testimony
whereof. The initial words of the concluding
clause of ancient deeds in Latin, literally trans-
lated in the English forms.
IN CUSTODIA LEGIS. In the custody or keeping
of the law. 2 Steph.Comm. 74.
IN DELICTO. In fault. See In Pari Delicto, etc.
IN DIEM. For a day; for the space of a day.
Calvin.
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IN DISJUNCTIVIS
IN DISJUNCTIVIS SUFFICIT ALTERAM PAR-
TEM ESSE VERAM. In disjunctives it is suffi-
cient that either part be true. Where a condition
is in the disjunctive, it is sufficient if either part
be performed. Wing. Max. 13, max. 9; Broom,
Max. 592; 7 East, 272.
IN DOMINICO. In demesne. In dominico suo ut
de feodo, in his demesne as of fee.
IN DORSO. On the back. 2 Bl.Comm. 468; 2
Steph.Comm. 164. In dorso recordi, on the back of
the record. 5 Coke, 45. Hence the English in-
dorse, indorsement, etc.
IN DUBIIS, BENIGNIORA PRZEFERENDA
SUNT. In doubtful cases, the more favorable
views are to be preferred; the more liberal inter-
pretation is to be followed. Dig. 50, 17, 56; 2
Kent, Comm, 557.
IN DUBIIS, MAGIS DIGNUM EST ACCIPIEN-
DUM. Branch, Princ. In doubtful cases, the more
worthy is to be accepted.
IN DUBIIS, NON PR1ESUMITUR PRO TESTA-
MENTO. In cases of doubt, the presumption is
not in favor of a will. Branch, Princ. But see
Cro. Car, 51.
IN DUBIO. In doubt; in a state of uncertainty, or
in a doubtful case.
IN DUBIO, 112EC LEGIS CONSTRUCTIO QUAM
VERBA OSTENDUNT. In a case of doubt, that is
the construction of the law which the words indi-
cate. Branch, Princ.
IN DUBIO, PARS MITIOR EST SEQUENDA. In
doubt, the milder course is to be followed.
IN DUBIO, PRO LEGE FORI. In a doubtful case,
the law of the forum is to be preferred. "A false
maxim." Meili, Int. L. 151.
IN DUBIO, SEQUENDUM QUOD TUTIUS EST.
In doubt, the safer course is to be adopted.
IN DUPLO. In double. Damna in duplo, double
damages. Fleta, lib. 4, c. 10, § 1.
IN EADEM CAUSA. In the same state or condi-
tion. Calvin.
IN EMULATIONEM VICINI. In envy or hatred
of a neighbor. Where an act is done, or action
brought, solely to hurt or distress another, it is
said to be in emulationem vicini. 1 Karnes, Eq.
56.
IN EO QUOD PLUS SIT, SEMPER INEST ET
MINUS. In the greater is always included the
less also. Dig. 50, 17, 110.
IN EQUITY. In a court of equity as distinguish-
ed from a court of law; in the purview, consid-
eration, or contemplation of equity; according to
the doctrines of equity.
IN ESSE. In being. Actually existing. Disting-
uished from in posse, which means "that which is
not, but may be." A child before birth is in posse;
after birth, in esse.
IN EST DE JURE. (Lat.) It is implied of right
or by law.
IN EVIDENCE. Included in the evidence already
adduced. The "facts in evidence" are such as
have already been proved in the cause.
IN EXCAMBIO. In exchange. Formal words in
old deeds of exchange.
IN EXECUTION AND PURSUANCE OF. Words
used to express the fact that the instrument is
intended to carry into effect some other instru-
ment, as in case of a deed in execution of a power.
They are said to be synonymous with "to effect
the object of;" U. S. v. Nunnemacher, 7 Biss. 129,
Fed. Cas. No. 15,903.
IN EXITU. In issue. De materia in exitu, of the
matter in issue. 12 Mod. 372.
IN EXPOSITIONE INSTRUMENTORUM, MALA
GRAMMATICA, QUOD FIERI POTEST, VITAN-
DA EST. In the construction of instruments, bad
grammar is to be avoided as much as possible.
6 Coke, 39; 2 Pars, Cont. 26.
IN EXTENSO. In extension; at full length; from
beginning to end, leaving out nothing.
IN EXTREMIS. In extremity; in the last ex-
tremity; in the last illness. 2 Bl.Comm. 375, 500;
Prince v. Hazleton, 20 Johns. (N.Y.) 502, 11 Am.
Dec, 307. Agens in extremis, being in extremity.
Bract. fol. 373b. Declarations in extremis, dying
declarations. 1 Greenl. Ev. § 156; State v. Burton,
111 S.C. 526, 98 S.E. 856, 863. In extremis does
not always mean in articulo mortis. In re Mal-
lery's Will, 127 Misc. 784, 217 N.Y.S. 489, 492.
IN FACIE CURIAE. In the face of the court.
Dyer, 28.
IN FACIE ECCLESLE. In the face of the church.
A term applied in the law of England to mar-
riages, which are required to be solemnized in a
parish church or public chapel, unless by dispen-
sation or license. 1 Bl.Comm. 439; 2 Steph.Comm.
288, 289. Applied in Bracton to the old mode of
conferring dower. Bract. fol. 92; 2 Bl.Comm. 133.
IN FACIENDO. In doing; in feasance; in the
performance of an act. 2 Story, Eq. Jur. § 1308.
IN FACT. Actual, real; as distinguished from
implied or inferred. Resulting from the acts of
parties, instead of from the act or intendment of
law.
IN FACTO. In fact; in deed. In facto dicit, in
fact says. 1 Salk. 22, p1.1.
IN FACTO QUOD SE HABET AD BONUM ET
MALUM, MAGIS DE BONO QUAM DE MALO
LEX INTENDIT. In an act or deed which admits
of being considered as both good and bad, the law
intends more from the good than from the bad;
the law makes the more favorable construction.
Co. Litt. 78b.
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IN INDIVIDUO
IN FAVORABILIBUS MAGIS ATTENDITUR
QUOD PRODEST QUAM QUOD NOCET. In
things favored, what profits is more regarded
than what prejudices. Bac. Max. p. 57, in reg.
12.
IN FAVOREM LIBERTATIS. In favor of liberty.
IN FAVOREM VITAE. In favor of life.
IN FAVOREM  LIBERTATIS, ET INNO-
CENTI1E, OMNIA PRIESUMUNTUR. In favor of
life, liberty, and innocence, every presumption is
made. Lofft, 125.
IN FEODO. In fee. Bract. fol. 207; Fleta, lib. 2,
c. 64, § 15. Seisitus in feodo, seised in fee. Fleta,
lib. 3, c. 7, § 1.
IN FICTIONE JURIS SEMPER )EQUITAS EX-
ISTIT. In the fiction of law there is always equi-
ty; a legal fiction is always consistent with equity.
11 Coke 51a; Broom, Max. 127, 130.
IN FIERI. In being made; in process of forma-
tion or development; hence, incomplete or in-
choate. Legal proceedings are described as in fieri
until judgment is entered.
IN FINE. Lat. At the end. Used, in references,
to indicate that the passage cited is at the end of
a book, chapter, section, etc.
IN FORMA PAUPERIS. In the character or man-
ner of a pauper. Describes permission given to a
poor person to sue without liability for costs.
IN FORO. In a (or the) forum, court, or tribunal.
IN FORO CONSCIENTIIE. In the tribunal of
conscience; conscientiously; considered from a
moral, rather than a legal, point of view.
IN FORO CONTENTIOSO. In the forum of con-
tention or litigation.
IN FORO ECCLESIASTICO. In an ecclesiastical
forum; in the ecclesiastical court. Fleta, lib. 2,
c. 57, § 13.
IN FORO SIECULARI. In a secular forum or
court. Fleta, lib. 2, c. 57, § 14; 1 Bl.Comm. 20.
IN FRAUDEM CREDITORUM. In fraud of credi-
tors; with intent to defraud creditors. Inst. 1,
6, pr. 3.
IN FRAUDEM LEGIS. In fraud of the law. 3
Bl.Comm. 94. With the intent or view of evading
the law. Jackson v. Jackson, 1 Johns. (N. Y.) 424,
432.
IN FULL. Relating to the whole or full amount.,
as a receipt in full. Complete; giving all de-
tails. Bard v. Wood, 3 Mete. (Mass.) 75.
IN FULL LIFE. Continuing in both physical and
civil existence; that is, neither actually dead nor
civiliter mortuus.
IN FUTURO. In future; at a future time; the
opposite of in prcesenti. 2 Bl.Comm. 166, 175.
IN GENERALI PASSAGIO. In the general pas-
sage; that is, on the journey to Palestine with
the general company or body of Crusaders. This
term was of frequent occurrence in the old law
of essoins, as a means of accounting for the ab-
sence of the party, and was distinguished from
simplex passagium, which meant that he was per-
forming a pilgrimage to the Holy Land alone.
IN GENERALIBUS VERSATUR ERROR. Error
dwells in general expressions. Pitman v. Hooper,
3 Sumn. 290, Fed. Cas. No. 11,186; Underwood
v. Carney, 1 Cush. (Mass.) 292.
IN GENERE. In kind; in the same genus or
class; the same in quantity and quality, but not
individually the same. In the Roman law, things
which may be given or restored in genere are dis-
tinguished from such as must be given or restored
in specie; that is, identically. Mackeld. Rom.
Law, § 161.
IN GREMIO LEGIS. In the bosom of the law;
in the protection of the law; in abeyance. 1 Coke,
131a; T. Raym. 319; Hooper v. Farmers' Union
Warehouse Co., 21 Ala.App. 91, 105 So. 725, 726.
IN GROSS. In a large quantity or sum; without
division or particulars; by wholesale. Green v.
Taylor, 10 Fed.Cas.No.1,126. At large; not an-
nexed to or dependent upon another thing. Com-
mon in gross is such as is neither appendant nor
appurtenant to land, but is annexed to a man's
person. 2 Bl.Comm. 34.
IN HAC PARTE. In this behalf; on this side.
IN VERBA. In these words; in the same
words.
IN HIEREDES NON SOLENT TRANSIRE AC-
TIONES QUIE PCENALES EX MALEFICIO
SUNT. 2 Inst. 442. Penal actions arising from
anything of a criminal nature do not pass to heirs.
IN HIS ENIM QU)E SUNT FAVORABILIA ANI-
QUAMVIS SUNT DAMNOSA REBUS, FIAT
ALIQUANDO EXTENTIO STATUTI. In things
that are favorable to the spirit, though injurious
to property, an extension of the statute should
sometimes be made. 10 Coke, 101.
IN HIS QUIE DE JURE COMMUNI OMNIBUS
CONCEDUNTUR, CONSUETUDO ALICUJUS
PATRIIE VEL LOCI NON EST ALLEGENDA. 11
Coke, 85. In those things which by common right
are conceded to all, the custom of a particular dis-
trict or place is not to be alleged.
IN HOC. In this; in respect to this.
IN IIS QUIE SUNT MERZE FACULTATIS NUN-
QUAM PR4ESCRIBITUR. Prescription does not
run against a mere power or faculty to act. Tray.
Leg. Max.
IN IISDEM TERMINIS. In the same terms. 9
East, 487.
IN INDIVIDUO. In the distinct, identical, or in-
dividual form; in specie. Story, Bailm. § 97.
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IN INFINITUM
IN INFINITUM. Infinitely; indefinitely. Im-
ports indefinite succession or continuance.
IN INITIALIBUS. In the preliminaries. A term
in Scotch practice, applied to the preliminary ex-
amination of a witness as to the following points:
Whether he knows the parties, or bears ill will to
either of them, or has received any reward or
promise of reward for what he may say, or can
lose or gain by the cause, or has been told by any
person what to say. If the witness answer these
questions satisfactorily, he is then examined in
causa, in the cause. Bell, Dict. "Evidence."
IN INITIO. In or at the beginning. In initio litis,
at the beginning, or in the first stage of the suit.
Bract. fol. 400.
IN INTEGRUM. To the original or former state.
Calvin.
IN INVIDIAM. To excite a prejudice.
IN INVITUM. Against an unwilling party;
against one not assenting. A term applied to pro-
ceedings against an adverse party, to which he
does not consent.
IN IPSIS FAUCIBUS. In the very throat or en-
trance. In ipsis faucibus of a port, actually enter-
ing a port. 1 C.Rob.Adm. 233, 234.
IN ITINERE. In eyre; on a journey or circuit.
In old English law, the justices in itinere (or in
eyre) were those who made a circuit through the
kingdom once in seven years for the purposes of
trying causes. 3 Bl.Comm. 58. In course of trans-
portation; on the way; not delivered to the ven-
dee. In this sense the phrase is equivalent to
"in transitu."
IN JUDGMENT. In a court of justice; in a seat
of judgment. Lord Hale is called "one of the
greatest and best men who ever sat in judgment."
1 East, 306.
IN JUDICIIS, MINOR! ZETATI SUCCURRITUR.
In courts or judicial proceedings, infancy is aided
or favored. Jenk.Cent. 46, case 89.
IN JUDICIO. In Roman law. In the course of an
actual trial; before a judge, (judex.) A cause,
during its preparatory stages, conducted before
the prtor, was said to be in jure; in its second
stage, after it had been sent to a judex for trial,
it was said to be in judicio.
IN JUDICIO NON CREDITUR NISI JURATIS.
Cro.Car. 64. In a trial, credence is given only to
those who are sworn.
IN JURE. In law; according to law.
In the Roman practice, the procedure in an action was
divided into two stages. The first was said to be in jure;
it took place before the prtor, and included the formal
and introductory part and the settlement of questions of
law. The second stage was committed to the judex, and
comprised the investigation and trial of the facts; this
was said to be in judicio.
IN JURE ALTERIUS. In another's right. Hale,
Anal. § 26.
IN JURE, NON REMOTA CAUSA SED PROXIMA
SPECTATUR. Bac.Max. reg. 1. In law, the proxi-
mate, and not the remote, cause is regarded.
IN JURE PROPRIO. In one's own right. Hale,
Anal. § 26.
IN JUS VOCARE. To call, cite, or summon to
court. Inst. 4, 16, 3; Calvin. In jus vocando, sum-
moning to court. 3 Bl.Comm. 279.
IN KIND. In the same kind, class, or genus. A
loan is returned "in kind" when not the identical
article, but one corresponding and equivalent to it,
is given to the lender. See In Genere.
The agreement that a collector of taxes was to
receive his commission "in kind" means the same
kind of funds in which the tax is collected; Wilson
v. State, 51 Ark. 213, 10 S.W. 491.
IN LAW. In the intendment, contemplation, or
inference of the law; implied or inferred by law;
existing in law or by force of law. See In Fact.
IN LECTO MORTALI. On the deathbed. Fleta,
lib. 5, c. 28, § 12.
IN LIBERAM ELEMOSINAM. In free alms.
Land given for a charitable motive was said to be
so given. See Frankalmoin.
IN LIEU OF. Instead of; in place of; in substitu-
tion of. State v. Escalade, 91 So. 135, 136, 150 La.
638; Joiner v. Joiner, 117 Miss. 507, 78 So. 369, 370.
IN LIMINE. On or at the threshold; at the very
beginning; preliminarily.
IN LITEM. For a suit; to the suit. Greenl.Ev. §
348.
IN LOCO. In place; in lieu; instead; in the place
or stead. Townsh.Pl. 38.
IN LOCO PARENTIS. In the place of a parent;
instead of a parent; charged, factitiously, with a
parent's rights, duties, and responsibilities. Weth-
erby v. Dixon, 19 Ves. 412; Brinkerhoff v. Merselis,
24 N.J.L. 683; Howard v. United States, D.C.Ky., 2
F.2d 170, 174; Meisner v. United States, D.C.Mo.,
295 F. 866, 868.
IN MAJORE SUMMA CONTINETUR MINOR. 5
Coke, 115. In the greater sum is contained the
less.
IN MAJOREM CAUTELAM. For greater securi-
ty. 1 Strange, 105, arg.
IN MALAM PARTEM. In a bad sense, so as to
wear an evil appearance.
IN MALEFICIIS VOLUNTAS SPECTATUR, NON
EXITUS. In evil deeds regard must be had to the
intention, and not to the result. Dig. 48, 8, 14;
Broom, Max. 324.
IN MALEFICIO, RATIHABITIO MANDATO
COMPARATUR. In a case of malfeasance, rati-
fication is equivalent to command. Dig. 50, 17,
152, 2.
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IN OMNIBUS
IN MAXIMA POTENTIA MINIMA LICENTIA.
In the greatest power there is the least freedom.
Hob. 159.
IN MEDIAS RES. Into the heart of the subject,
without preface or introduction.
IN MEDIO. Intermediate. A term applied, in
Scotch practice, to a fund held between parties
litigant.
IN MERCIBUS ILLICITIS NON SIT COMMER-
CIUM. There should be no commerce in illicit or
prohibited goods. 3 Kent, Comm. 262, note.
IN MERCY. To be in mercy is to be at the discre-
tion of the king, lord, or judge in respect to the im-
position of a fine or other punishment.
IN MISERICORDIA. The entry on the record
where a party was in mercy was, "Ideo in miseri-
cordia," etc. Sometimes "misericordia" means the
being quit of all amercements.
IN MITIORI SENSU. In the milder sense; in
the less aggravated acceptation.
In actions of slander, it was formerly the rule that, if the
words alleged would admit of two constructions, they
should be taken in the less injurious and defamatory sense,
or in mitiori sense,
IN MODUM ASS'S/E. In the manner or form
of an assize. Bract. fol. 183b. In modum juratce,
in manner of a jury. Id. fol. 181b.
IN MORA. In default; literally, in delay. In the
civil law, a borrower who omits or refuses to re-
turn the thing loaned at the proper time is said
to be in mora. Story, Bailm. §§ 254, 259.
In Scotch law. A creditor who has begun with-
out completing diligence necessary for attaching
the property of his debtor is said to be in mora.
Bell.
IN MORTUA MANU. Property owned by reli-
gious societies was said to be held in mortua manu,
or in mortmain, since religious men were civiliter
mortui. 1 Bl.Comm. 479; Tayl.Gloss.
IN NOMINE DEI, AMEN. In the name of God,
Amen. A solemn introduction, anciently used in
wills and many other instruments. The transla-
tion is often used in wills at the present day.
IN NOTIS. In the notes.
IN NOVO CASU, NOVUM REMEDIUM APPO-
NENDUM EST. 2 Inst. 3. A new remedy is to
be applied to a new case.
IN NUBIBUS. In the clouds; in abeyance; in cus-
tody of law. In nubibus, in mare, in terra, vel in
custodid legis, in the air, sea, or earth, or in the
custody of the law. Tayl.Gloss. In case of abey-
ance, the inheritance is figuratively said to rest in
nubibus, or in gremio legis.
IN NULLIUS BONIS. Among the goods or prop-
erty of no person; belonging to no person, as
treasure-trove and wreck were anciently consid-
ered.
Black's Law Dictionary Revised 4th Ed.--57
IN NULLO EST ERRATUM. In nothing is there
error. The name of the common plea or joinder
in error, denying the existence of error in the rec-
ord or proceedings; which is in the nature of a de-
murrer, and at once refers the matter of law aris-
ing thereon to the judgment of the court. 2 Tidd,
Pr. 1173; Booth v. Com., 7 Mete. (Mass.) 285, 287.
IN OBSCURA VOLUNTATE MANUMITTENTIS,
FAVENDUM EST LIBERTATI. Where the ex-
pression of the will of one who seeks to manumit
a slave is ambiguous, liberty is to be favored.
Dig. 50, 17, 179.
IN OBSCURIS, INSPICI SOLERE QUOD VERI-
SIMILIUS EST, AUT QUOD PLERUMQUE FIERI
SOLET. In obscure cases, we usually look at
what is most probable, or what most commonly
happens. Dig. 50, 17, 114.
IN OBSCURIS, QUOD MINIMUM EST SEQUI-
MUR. In obscure or doubtful cases, we follow
that which is the least. Dig. 50, 17, 9; 2 Kent,
Comm. 557.
IN ODIUM SPOLIATORIS. In hatred of a de-
spoiler, robber, or wrong-doer. The Saratoga, 1
Gall. 174, Fed.Cas.No.12,355; Arthur v. The Cas-
sius, 2 Story, 99, Fed.Cas.No.564. 1 Greenl.Ev. §
348.
IN ODIUM SPOLIATORIS OMNIA PRIESUM-
UNTUR. To the prejudice (in condemnation) of
a despoiler all things are presumed; every pre-
sumption is made against a wrongdoer. 1 Vern.
452.
IN OMNI ACTIONE UBI DUX CONCURRUNT
DISTRICTIONES, VIDELICET, IN REM ET IN
PERSONAM, ILLA DISTRICTIO TENENDA EST
QUPE MAGIS TIMETUR ET MAGIS LIGAT. In
every action where two distresses concur, that is,
in rem and in personam, that is to be chosen which
is most dreaded, and which binds most firmly.
Bract. fol. 372; Fleta, 1. 6, c. 14, § 28.
IN OMNI RE NASCITUR RES QUZE IPSAM
REM EXTERMINAT. In everything there arises
a thing which destroys the thing itself. Every-
thing contains the element of its own destruction.
2 Inst. 15.
IN OMNIBUS. In all things; on all points. "A
case parallel in omnibus." 10 Mod. 104.
IN OMNIBUS CONTRACTIBUS, SIVE NOMINA-
TIS SIVE INNOMINATIS, PERMUTATIO CON-
TINETUR. In all contracts, whether nominate or
innominate, an exchange [of value, i. e., a consid-
eration] is implied. Gravin. lib. 2, § 12; 2 Bl.
Comm. 444, note.
IN OMNIBUS OBLIGATIONIBUS IN QUIBUS
DIES NON PONITUR, PRIESENTI DIE DEBET-
UR. In all obligations in which a date is not put,
the debt is due on the present day; the liability
accrues immediately. Dig. 50, 17, 14.
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IN OMNIBUS
IN OMNIBUS [FERE] P(ENALIBUS JUDICIIS,
ET 2ETATL ET IMPRUDENTI2E SUCCURRI-
TUR. In nearly all penal judgments, immaturity
of age and imbecility of mind are favored. Dig.
50, 17, 108; Broom, Max. 314.
IN OMNIBUS QUIDEM, MAXIME TAMEN IN
JURE, ZEQUITAS SPECTANDA SIT. In all
things, but especially in law, equity is to be re-
garded. Dig. 50, 17, 90; Story, Bailm. § 257.
IN PACATO SOLO. In a country which is at
peace.
IN PACE DEI ET REGIS. In the peace of God
and the king. Fleta, lib. 1, c. 31, § 6. Formal
words in old appeals of murder.
IN PAIS. This phrase, as applied to a legal trans-
action, primarily means that it has taken place
without legal proceedings. Thus a widow was
said to make a request in pais for her dower when
she simply applied to the heir without issuing a
writ. (Co. Litt. 32b.) So conveyances are divid-
ed into those by matter of record and those by
matter in pais. In some cases, however, "mat-
ters in pais" are opposed not only to "matters of
record," but also to "matters in writing," i. e.,
deeds, as where estoppel by deed is distinguish-
ed from estoppel by matter in pais. Id. 352a.)
Sweet. See, also, Pais.
IN PAIS, ESTOPPEL IN. An estoppel not aris-
ing from deed or record or written contract.
Steph.Pl. 197; Duke v. Griffith, 9 Utah 476, 35
P. 512. The doctrine is that a person may be pre-
cluded by his act or conduct or silence, when it is
his duty to speak, from asserting a right which
he otherwise would have had. Marshall v. Wil-
son, 175 Or. 506, 154 P.2d 547, 551. The effect of
a party's voluntary conduct whereby he is pre-
cluded from asserting rights as against another
person who has in good faith relied upon such con-
duct and has been led thereby to change his con-
dition for the worse and who acquires some cor-
responding right of property or contract. Oswego
Falls Corporation v. City of Fulton, 265 N.Y.S. 436,
148 Misc. 170.
Elements or fundamentals of "estoppel in pals" include
admission, statement, or act inconsistent with claim after-
wards asserted, National Match Co. v. Empire Storage &
Ice Co., 227 Mo.App. 1115, 58 S.W.2d 797; Peyrefitte v.
Union Homestead Ass'n, La.App., 185 So. 693, 697; change
of position to loss or injury of party claiming estoppel,
Personal Finance Co. of Providence v. Henley-Kimball Co.,
61 R.I. 402, 1 A.2d 121, 125, 117 A.L.R. 1476; Malloy v.
City of Chicago, 369 Ill. 97, 15 N.E.2d 861, 865; circum-
stances such that party estopped knew or should have
known facts to be otherwise or pretended to know facts
which he did not know, Briscoe v. O'Connor, 119 N.J.Eq.
378, 182 A. 855; false representation or concealment of
material facts, Pickens v. Maryland Casualty Co., 141 Neb.
105, 2 N.W.2d 593, 596; inducement to alter position, Has-
chenberger v. Dennis, 118 Neb. 411, 225 N.W. 25, 26, 63
A.L.R. 493; Wollenberger v. Hoover, 346 Ill. 511, 179 N.E.
42, 67; intention that false representation or concealment
be acted on, Malloy v. City of Chicago, 369 Ill. 97, 15
N.E.2d 861, 865; Peterson v. City of Parsons, 139 Kan. 701,
33 P.2d 715, 720; knowledge of facts, by party to be
estopped, Darling Stores v. Fidelity-Bankers Trust Co.,
178 Tenn. 165, 156 S.W.2d 419, 424; Peterson v. City of
Parsons, 139 Kan. 701, 33 P.2d 715, 720; lack of knowledge
or means of knowledge of party claiming estoppel, Triplex
Shoe Co. v. Rice & Hutchins, 17 Dei.Ch. 356, 152 A. 342,
350, 72 A.L.R. 932; Sinclair Refining Co. v. Jenkins Petro-
leum Process Co., C.C.A.Me., 99 F.2d 9, 13, 14; misleading
of one person by another person to his prejudice or injury,
Garmon v. Davis, 63 Ga.App. 815, 12 S.E.2d 209, 211; Cur-
rent News Features v. Pulitzer Pub. Co., C.C.A.Mo., 81 F.2d
288, 292; prejudice or loss or injury to party claiming es-
toppel, City of St. Louis v. Mississippi River Fuel Corpora-
tion, D.C.Mo., 57 F.Supp. 549, 554; In re Bremer's Estate,
141 Neb. 251, 3 N.W.2d 411, 413, 414; reliance by one party
on belief induced by other party, Clover v. Peterson, 203
Minn. 337, 281 N.W. 275, 278; Strand v. State, 16 Wash.2d
107, 132 P.2d 1011, 1016.
Ratification is distinguishable in that the substance of
"ratification" is confirmation of the unauthorized act or
contract after it has been done or made, whereas substance
of "estoppel" is the principal's inducement to another to
act to his prejudice. Harvey v. J. P. Morgan & Co.,
Mun.Ct., 2 N.Y.S.2d 520, 531, 166 Misc. 455.
Silence when one should speak may be the basis of es-
toppel, Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270, 273;
waiver is distinguishable in that it is not essential to waiv-
er that the opposite party do anything on the strength of
the statement relied upon, Langley v. Norris, Tex.Civ.App.,
167 S.W.2d 603, 613; waiver designates act or consequence
of act of one person only; it is voluntary act and implies
abandonment of right or privilege. McDanels v. General
Ins. Co. of America, 1 Cal.App.2d 454, 36 P.2d 829, 832.
See, also, Equitable Estoppel.
IN PAPER. A term formerly applied to the pro-
ceedings in a cause before the record was made
up. 3 Bl.Comm. 406; 2 Burrows, 1098. Probably
from the circumstance of the record being always
on parchment. The opposite of "on record." 1
Burrows, 322.
IN PARI CAUSA. In an equal cause. In a cause
where the parties on each side have equal rights.
IN PARI CAUSA POSSESSOR POTIOR HAB-
ERL DEBET. In an equal cause he who has the
possession should be preferred. Dig. 50, 17, 128, 1.
IN PARI DELICTO. In equal fault; equally cul-
pable or criminal; in a case of equal fault or
guilt. Rozell v. Vansyckle, 11 Wash. 79, 39 Pac.
270.
A person who is in part delicto with another differs from
a particeps criminis in this, that the former term always
includes the latter, but the latter does not always include
the former. 8 East, 381.
IN PARI DELICTO POTIOR EST CONDITIO
POSSIDENTIS, [DEFENDENTIS.] In a case of
equal or mutual fault [between two parties] the
condition of the party in possession [or defend-
ing] is the better one. 2 Burrows, 926.
Where each party is equally in fault, the law favors him
who is actually in possession. Broom, Max. 290, 729.
Where the fault is mutual, the law will leave the case as it
finds it. Story, Ag. § 195; Reaves Lumber Co. v. Cain-
Hurley Lumber Co., 152 Tenn. 339, 279 S.W. 257, 258.
IN PARI MATERIA. Upon the same matter or
subject. Statutes in pari materia are to be con-
strued together. State v. Gerhardt, 145 Ind. 439,
44 N.E. 469, 33 L.R.A. 313.
IN PATIENDO. In suffering, permitting, or al-
lowing.
IN PECTORE JUDICIS. In the breast of the
judge. Latch, 180. A phrase applied to a judg-
ment.
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IN PROPRIA
DT PEJOREM PARTEM. In the worst part; on
the worst side. Latch, 159, 160.
IN PERPETUAM REI MEMORIAM. In perpetu-
al memory of a matter; for preserving a record
of a matter. Applied to depositions taken in or-
der to preserve the testimony of the deponent.
IN PERPETUITY. Endless duration; forever.
Central R. Co. of New Jersey v. New York Tele-
phone Co., 101 N.J.L. 353, 128 A. 160, 161.
IN PERPETUAM REI TESTIMONIUM. In per-
petual testimony of a matter; for the purpose of
declaring and settling a thing forever. 1 Bl.
Comm. 86.
IN PERSON. A party, plaintiff or defendant, who
sues out a writ or other process, or appears to
conduct his case in court himself, instead of
through a solicitor or counsel, is said to act and
appear in person.
IN PERSONAM, IN REM. In the Roman law,
from which they are taken, the expressions "in
rem" and "in personam" were always opposed to
one another, an act or proceeding in personam be-
ing one done or directed against or with reference
to a specific person, while an act or proceeding
in rem was one done or directed with reference
to no specific person, and consequently against or
with reference to all whom it might concern, or
"all the world." The phrases were especially ap-
plied to actions; an actio in personam being the
remedy where a claim against a specific person
arose out of an obligation, whether ex contractu
or ex maleficio, while an actio in rem was one
brought for the assertion of a right of property,
easement, status, etc., against one who denied or
infringed it. See Inst. 4, 6, 1; Gaius, 4, 1, 1-10.
From this use of the terms, they have come to be ap-
plied to signify the antithesis of "available against a par-
ticular person," and "available against the world at large."
Thus, Jura in personam are rights primarily available
against specific persons; Jura in rem, rights only available
against the world at large. Hook v. Hoffman, 147 P. 722,
727, 16 Ariz. 540; Beck v. Natalie Oil Co., 143 La. 153, 78
So. 430.
So a judgment or decree is said to be in rem when it
binds third persons. Such is the sentence of a court of
admiralty on a question of prize, or a decree of nullity or
dissolution of marriage, or a decree of a court in a foreign
country as to the status of a person domiciled there.
Lastly, the terms are sometimes used to signify that a
judicial proceeding operates on a thing or a person. Thus,
it is said of the court of chancery that it acts in personam,
and not in rem, meaning that its decrees operate by com-
pelling defendants to do what they are ordered to do, and
not by producing the effect directly. Sweet. See Cross v.
Armstrong, 44 Ohio St. 613, 10 N.E. 160.
Judgment in Personam
See that title.
IN PERSONAM ACTIO EST, QUA CUM EO AGI-
MUS QUI OBLIGATUS EST NOBIS AD FACIEN-
DUM ALIQUID VEL DANDUM. The action in
personam is that by which we sue him who is
under obligation to us to do something or give
something. Dig. 44, 7, 25; Bract. 101b.
IN PLACE. In mining law, rock or mineralized
matter is "in place" when remaining as nature
placed it, that is, unsevered from the circumjacent
rock, or which is fixed solid and immovable in
the form of a vein or lode. Williams v. Gibson,
84 Ala. 228, 4 So. 350, 5 Am.St.Rep. 368.
IN PLENA VITA. In full life. Yearb. P. 18 Hen.
VI. 2.
IN PLENO COMITATU. In full county court. 3
Bl.Comm. 36.
IN PLENO LUMINE. In public; in common
knowledge; in the light of day.
IN PCENALIBUS CAUSIS BENIGNIUS INTER-
PRETANDUM EST. In penal causes or cases,
the more favorable interpretation should be adopt-
ed. Dig. 50, 17, (197), 155, 2; Plowd. 86b, 124; 2
Hale, P.C. 365.
IN POSSE. In possibility; not in actual exist-
ence. See In Esse.
IN POTESTATE PARENTIS. In the power of a
parent. Inst. 1, 8, pr.; Id. 1, 9; 2 Bl.Comm. 498.
IN PRAEMISSORUM FIDEM. In confirmation or
attestation of the premises. A notarial phrase.
IN PRAEPARATORIIS AD JUDICIUM FAVETUR
ACTORI. 2 Inst. 57. In things preceding judg-
ment the plaintiff is favored.
IN PRIESENTI. At the present time. 2 Bl.
Comm. 166. Used in opposition to in futuro. Van
Wyck v. Knevals, 1 S.Ct. 336, 106 U.S. 360, 27 L.
Ed. 201.
IN PRIESENTIA MAJOR'S POTESTATIS, MIN-
OR POTESTAS CESSAT. In the presence of the
superior power, the inferior power - ceases. Jenk.
Cent. 214, c. 53. The less authority is merged in
the greater. Broom, Max. 111.
IN PRENDER. L. Fr. In taking. A term ap-
plied to such incorporeal hereditaments as a party
entitled to them was to take for himself; such
as common. 2 Steph.Comm. 23; 3 Bl.Comm. 15.
See In Render.
IN PRETIO EMPTIONIS ET VENDITIONIS, NA-
T1URALITER LICET CONTRAHENTIBUS SE
CIRCUMVENIRE. In the price of buying and
selling, it is naturally allowed to the contracting
parties to overreach each other. 1 Story, Cont.
606.
IN PRIMIS. In the first place. A phrase used in
argument.
IN PRINCIPIO. At the beginning.
IN PROMPTU. In readiness; at hand. Usually
written impromptu.
IN PROPRIA CAUSA NEMO JUDEX. No one
can be judge in his own cause. 12 Code, 13.
IN PIOS USUS. For pious uses; for religious
purposes. 2 Bl.Comm. 505.
IN PROPRIA PERSONA. In one's own proper
person.
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IN PROPRIA
It is a rule in pleading that pleas to the jurisdiction of
the court must be plead in propria persona, because if
pleaded by attorney they admit the jurisdiction, as an at-
torney is an officer of the court, and he is presumed to
plead after having obtained leave, which admits the juris-
diction. Lawes, PI. 91.
In some jurisdictions, however, this rule is no longer rec-
ognized. 1 C.J. 255.
IN QUO QUIS DELINQUIT, IN EO DE JURE
EST PUNIENDUS. In whatever thing one of-
fends, in that is he rightfully to be punished. Co.
Litt. 233b; Wing. Max. 204, max. 58. The punish-
ment shall have relation to the nature of the of-
fense.
IN RE. In the affair; in the matter of; concern-
ing; re. This is the usual method of entitling a
judicial proceeding in which there are not adver-
sary parties, but merely some res concerning
which judicial action is to be taken, such as a
bankrupt's estate, an estate in the probate court,
a proposed public highway, etc. It is also some-
times used as a designation of a proceeding where
one party makes an application on his own be-
half, but such proceedings are more usually enti-
tled "Ex parte ."
IN RE COMMUNI MELIOR EST CONDITIO
PROHIBENTIS. In common property the con-
dition of the one prohibiting is the better. In oth-
er words, either co-owner has a right of veto
against the acts of the other. Gulf Refining Co.
of Louisiana v. Carroll, 145 La. 299, 82 So. 277, 279.
IN RE COMMUNI NEMINEM DOMINORUM
JURE FACERE QUICQUAM, INVITO ALTERO,
POSSE. One co-proprietor can exercise no au-
thority over the common property against the will
of the other. Dig. 10, 3, 28. In other words, eith-
er co-owner has a right of veto against the acts
of the other. Gulf Refining Co. of Louisiana v.
Carroll, 145 La. 299, 82 So. 277, 279.
IN RE COMMUNI POTIOR EST CONDITIO PRO-
HIBENTIS. In a partnership the condition of one
who forbids is the more favorable.
IN RE DUBIA, BENIGNIOREM INTERPRETA-
TIONEM SEQUI, NON MINUS JUSTIUS EST
QUAM TUTIUS. In a doubtful matter, to follow
the more liberal interpretation is not less the
juster than the safer course. Dig. 50, 17, 192, 1.
IN RE DUBIA, MAGIS INFICIATIO QUAM AF-
FIRMATIO INTELLIGENDA. In a doubtful mat-
ter, the denial or negative is to be understood, [or
regarded,] rather than the affirmative. Godb. 37.
IN RE LUPANARI, TESTES LUPANARES AD-
MITTENT1UR. In a matter concerning a brothel,
prostitutes are admitted as witnesses. Van Epps
v. Van Epps, 6 Barb. (N.Y.) 320, 324.
IN RE PARI POTIOREM CAUSAM ESSE PRO-
HIBENTIS CONSTAT. In a thing equally shar-
ed [by several] it is clear that the party refusing
[to permit the use of it] has the better cause.
Dig. 10, 3, 28. A maxim applied to partnerships,
where one partner has a right to withhold his as-
sent to the acts of his copartner. 3 Kent.Comm.
45.
IN . RE PROPRIA INIQUUM ADMODUM EST AL-
ICUI LICENTIAM TRIBUERE SENTENTIJE.
It is extremely unjust that any one should be
judge in his own cause.
IN REBUS (Lat.) In things, cases, or matters.
IN REBUS MANIFESTIS, ERRAT QUI AUC-
TORITATES LEGUM ALLEGAT; QUIA PER-
SPICUA VERA NON SUNT PROBANDA. In
clear cases, he mistakes who cites legal authori-
ties; for obvious truths are not to be proved. 5
Coke, 67a. Applied to cases too plain to require
the support of authority; "because," says the re-
port, "he who endeavors to prove them obscures
them."
IN REBUS QU1E SUNT FAVORABILIA ANIMA,
QUAMVIS SUNT DAMNOSA REBUS, FIAT ALI-
QUANDO EXTENSIO STATUTI. 10 Coke, 101.
In things that are favorable to the spirit, though
injurious to things, an extension of a statute
should sometimes be made.
IN REGARD TO. Concerning; relating to; in
respect of; with respect to; about. Hart v. Hart,
181 Iowa 527, 164 N.W. 849, 850.
IN REM. A technical term used to designate pro-
ceedings or actions instituted against the thing,
in contradistinction to personal actions, which are
said to be in personam. See In Personam.
It is true that, In a strict sense, a proceeding in rem is
one taken directly against property, and has for its object
the disposition of property, without reference to the title
of individual claimants; but, in a larger and more general
sense, the terms are applied to actions between parties,
where the direct object is to reach and dispose of property
owned by them, or of some interest therein. Such are
cases commenced by attachment against the property of
debtors, or instituted to partition real estate, foreclose a
mortgage, or enforce a lien. So far as they affect property
in this state, they are substantially proceedings in rem In
the broader sense which we have mentioned. Pennoyer v.
Neff, 95 U.S. 734, 24 L. Ed. 565; Continental Gin Co. v.
Arnold, 66 Oki. 132, 167 P. 613, 617, L.R.A.1918B, 511.
In the strict sense of the term, a proceeding "In rem" is
one which is taken directly against property or one which
is brought to enforce a right in the thing itself. Austin
v. Royal League, 316 Ill. 188, 147 N.E. 106, 109.
A divorce suit is a "suit in rem," the essential character-
istic of which is found in the power of the state through
the decree or judgment of its court to dispose of the sub-
ject-matter of the suit, the res, in accordance with the ob-
ject of the suit, whether that subject-matter be physical
property or the status of one or both of the parties litigant,
which decree operates immediately and absolutely upoh
the status of the suitor which is the res in the suit with-
out the necessity of execution, attachment, or contempt
proceedings to enforce it. Lister v. Lister, 86 N.J.Eq. 30,
97 A. 170, 173.
A proceeding "in rem" is in effect a proceeding against
the owner, as well as a proceeding against the goods, for it
is his breach of the law which has to be proven to estab-
lish the forfeiture, and it is his property which is sought
to be forfeited. Mack v. Westbrook, 148 Ga. 690, 98 S.E.
339, 343.
Judgment in rem. See that title.
Quasi in rem. A term applied to proceedings
which are not strictly and purely in rem, but are
brought against the defendant personally, though
the real object is to deal with particular property
or subject property to the discharge of claims as-
serted; for example, foreign attachment, or pro-
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IN TERROREM
ceedings to foreclose a mortgage, remove a cloud
from title, or effect a partition. Freeman v. Al-
derson, 7 S.Ct. 165, 119 U.S. 187, 30 L.Ed. 372; Hill
v. Henry, 66 N.J.Eq. 150, 57 A. 555.
IN REM ACTIO EST PER QUAM REM NOS-
TRAM QUIE AB ALIO POSSIDETUR PETIMUS,
ET SEMPER ADVERSUS EUM EST QUI REM
POSSIDET. The action in rem is that by which
we seek our property which is possessed by an-
other, and is always against him who possesses
the property. Dig. 44, 7, 25; Bract. fol. 102.
IN RENDER. A thing is said to lie in render
when it must be rendered or given by the tenant;
as rent. It is said to lie in prender when it con-
sists in the right in the lord or other person to
take something. See In Prender.
IN REPUBLICA MAXIME CONSERVANDA
SUNT JURA BELLI. In a state the laws of war
are to be especially upheld. 2 Inst. 58.
IN RERUM NATURA. In the nature of things;
in the realm of actuality; in existence. In a dila-
tory plea, an allegation that the plaintiff is not
in rerum natura is equivalent to averring that the
person named is fictitious. 3 Bl.Comm. 301.
In civil law, this phrase is applied to things.
Inst. 2, 20, 7. It is a broader term than in rebus
humanis:  g. before quickening, an infant is in
rerum natura, but not in rebus humanis; after
quickening, he is in rebus humanis as well as in
rerum natura. Calvinus, Lex.
IN RESTITUTIONEM, NON IN PCENAM HIER-
ES SUCCEDIT. The heir succeeds to the restitu-
tion, not to the penalty. An heir may be compel-
led to make restitution of a sum unlawfully appro-
priated by the ancestor, but is not answerable
criminally, as for a penalty. 2 Inst. 198.
IN RESTITUTIONIBUS BENIGNISSIMA INTER-
PRETATIO FACIENDA EST. Co.Litt. 112. The
most benignant interpretation is to be made in
restitutions.
IN SATISFACTIONIBUS NON PERMITTITUR
AMPLIUS FIERI QUAM SEMEL FACTUM EST.
In payments, more must not be received than has
been received once for all. 9 Coke, 53.
IN SCRINIO JUDICIS. In the writing-case of the
judge; among the judge's papers. "That is a
thing that rests in scrinio judicis, and does not ap-
pear in the body of the decree." Hardr. 51.
IN SEPARALI. In several; in severalty. Fleta,
lib. 2, c. 54, § 20.
IN SIMILI MATERIA. Dealing with the same or
a kindred subject-matter.
IN SIMPLICI PEREGRINATIONE. In simple
pilgrimage. Bract. fol. 338. A phrase in the old
law of essoins. See In Generali Passagio.
IN SOLIDO. In the civil law. For the whole;
as a whole. An obligation in solido is one where
each of the several obligors is liable for the whole;
that is, it is joint and several. Henderson v.
Wadsworth, 6 S.Ct. 140, 115 U.S. 264, 29 L.Ed.
377. Possession in solidum is exclusive posses-
sion.
When several persons obligate themselves to the obligee
by the terms "in solido," or use any other expressions
which clearly show that they intend that each one shall be
separately bound to perform the whole of the obligation,
it is called an "obligation in solido" on the part of the ob-
ligors. Civ.Code La. art. 2082.
IN SOLIDUM. For the whole. Si plures sint
fide jussores, quotquot erunt numero, singuli in
solidum tenentur, if there be several sureties,
however numerous they may be, they are indivi-
dually bound for the whole debt. Inst. 3, 21, 4.
In parte sive in solidum, for a part or for the
whole. Id. 4, 1, 16. See Id. 4, 6, 20; Id. 4, 7, 2.
IN SOLO. In the soil or ground. In solo alieno,
in another's ground. In solo proprio, in one's
own ground. 2 Steph.Comm. 20.
IN SPECIE. Specific; specifically. Thus, to de-
cree performance in specie is to decree specific
performance. In kind; in the same or like form.
A thing is said to exist in specie when it retains
its existence as a distinct individual of a particu-
lar class.
IN STATU QUO. In the condition in which it
was. See Status Quo. McReynolds v. Harrigfeld,
26 Idaho 26, 140 P. 1096, 1098.
IN STIPULATIONIBUS CUM QUIERITUR QUID
ACTUM SIT VERBA CONTRA STIPULATOREM
INTERPRETANDA SUNT. In the construction
of agreements words are interpreted against the
person using them. Thus, the construction of the
stipulatio is against the stipulator, and the con-
struction of the promissio against the promissor.
Dig. 45, 1, 38, 18; Broom, Max. 599.
IN STIPULATIONIBUS, ID TEMPUS SPECTA-
TOR QUO CONTRAHIMUS. In stipulations, the
time when we contract is regarded. Dig. 50, 17,
144, 1.
IN STIRPES. In the law of intestate succession.
According to the roots or stocks; by representa-
tion; as distinguished from succession per capita.
See Per Stirpes; Per Capita.
IN SUBSIDIUM. In aid.
IN SUO QUISQUE NEGOTIO HEBETIOR EST
QUAM IN ALIENO. Every one is more dull in
his own business than in another's.
IN TALI CASU EDITUM ET PROVISUM. See
In Casu Proviso.
IN TANTUM. In so much; so much; so far; so
greatly. Reg. Orig. 97, 106.
IN TERMINIS TERMINANTIBUS. In terms of
determination; exactly in point. 11 Coke, 40b.
In express or determinate terms. 1 Leon. 93.
IN TERROREM. In terror or warning; by way
of threat. Applied to legacies given upon condi-
tion that the recipient shall not dispute the valid-
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IN TERROREM
ity or the dispositions of the will; such a condi-
tion being usually regarded as a mere threat.
IN TERROREM POPULI. Lat. To the terror of
the people. A technical phrase necessary in in-
dictments for riots. 4 Car. & P. 373.
IN TESTAMENTIS PLENIUS TESTATORIS IN-
TENTIONEM SCRUTAMUR. In wills we more
especially seek out the intention of the testator.
3 Bulst. 103; Broom, Max. 555.
IN TESTAMENTIS PLENIUS VOLUNTATES
TESTANTIUM INTERPRETANTUR. Dig. 50, 17,
12. In wills the intention of testators is more es-
pecially regarded. "That is to say," says Mr.
Broom, (Max., 568,) "a will will receive a more
liberal construction than its strict meaning, if
alone considered, would permit."
IN TESTAMENTIS RATIO TACITA NON DE-
BET CONSIDERARI, SED VERBA SOLUM
SPECTARI DEBENT; ADEO PER DIVINATION-
EM MENTIS A VERB'S RECEDERE DURUM
EST. In wills an unexpressed meaning ought not
to be considered, but the words alone ought to be
looked to; so hard is it to recede from the words
by guessing at the intention.
IN TESTIMONIUM. Lat. In witness; in evi-
dence whereof.
IN THE FIELD. Any place, on land or water,
apart from permanent cantonments or fortifica-
tions where military operations are being con-
ducted. Hines v. Mikell, C.C.A., 259 F. 28, 30.
IN THE PEACE OF THE STATE. In definition
of murder as unlawful and felonious killing of hu-
man being "in the peace of the state," the quoted
phrase means the same as "in the king's peace"
under the English common law, and negatives the
idea that deceased was actually engaged in wag-
ing war against the state. State v. Corneille, 153
La. 929, 96 So. 813, 817.
IN TOTIDEM VERBIS. In so many words; in
precisely the same words; word for word.
IN TOTO. In the whole; wholly; completely; as
the award is void in toto.
IN TOTO ET PARS CONTINETUR. In the whole
the part also is contained. Dig. 50, 17, 113.
IN TRADITIONIBUS SCRIPTORUM, NON QUOD
DICTUM EST, SED QUOD GESTUM EST, IN-
SPICITUR. In the delivery of writings, not what
is said, but what is done, is looked to. 9 Coke,
137a.
IN TRAJECTU. In the passage over; on the voy-
age over. Sir William Scott, 3 C.Rob.Adm. 141.
IN TRANSITU. In transit; on the way or pas-
sage; while passing from one person or place to
another. 2 Kent.Comm. 540-552. Amory Mfg.
Co. v. Gulf, etc., R. Co., 89 Tex. 419, 37 S.W. 856, 59
Am.St.Rep. 65. On the voyage. 1 C.Rob.Adm.
338.
IN UTROQUE JURE. In both laws; e., the
civil and canon law.
IN VACUO. Without object; without concomit-
ants or coherence.
IN VADIO. In gage or pledge. 2 Bl.Comm. 157.
IN VENTRE SA MERE. L. Fr. In his mother's
womb; spoken of an unborn child.
IN VERAM QUANTITATEM FIDEJUSSOR TEN-
EATUR, NISI PRO CERTA QUANTITATE AC-
CESSIT. Let the surety be holden for the true
quantity, unless he agree for a certain quantity,
Bean v. Parker, 17 Mass. 597.
IN VERBIS, NON VERBA, SED RES ET RATIO,
QUIERENDA EST. Jenk. Cent. 132. In the con-
struction of words, not the mere words, but the
thing and the meaning, are to be inquired after.
IN VINCULIS. In chains; in actual custody.
Gilb. Forum Rom. 97.
Applied also, figuratively, to the condition of a
person who is compelled to submit to terms which
oppression and his necessities impose on him. 1
Story, Eq.Jur. § 302.
IN VIRIDI OBSERVANTIA. Present to the
minds of men, and in full force and operation.
IN VOCIBUS VIDENDUM NON A QUO SED AD
QUID SUMATUR. In discourses, it is to be con-
sidered not from what, but to what, it is advanced.
Ellesmere, Postn. 62.
IN WITNESS WHEREOF. The initial words of
the concluding clause in deeds: "In witness where-
of the said parties have hereunto set their hands,"
etc. A translation of the Latin phrase "in cujus
rei testimonium."
INADEQUATE. Insufficient; disproportionate;
lacking in effectiveness or in conformity to a pre-
scribed standard or measure.
INADEQUATE CONSIDERATION. One not ade-
quate or equal in value to the thing conveyed.
Farrell v. Third Nat. Bank, 20 Tenn.App. 540, 101
S.W.2d 158, 163.
INADEQUATE DAMAGES. See Damages.
INADEQUATE PRICE. A term applied to indi-
cate the want of a sufficient consideration for a
thing sold, or such a price as would ordinarily be
entirely incommensurate with its intrinsic value.
State v. Purcell, 131 Mo. 312, 33 S.W. 13.
INADEQUATE REMEDY AT LAW. Within the
meaning of the rule that equity will not entertain
a suit if there is an adequate remedy at law, this
does not mean that there must be a failure to col-
lect money or damages at law, but the remedy is
considered inadequate if it is, in its nature and
character, unfitted or not adapted to the end in
view, as, for instance, when the relief sought is
preventive rather than compensatory. Cruick-
shank v. Bidwell, 20 S.Ct. 280, 176 U.S. 73, 44 L.
Ed. 377.
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INCERTIE
INADMISSIBLE. That which, under the estab-
lished rules of law, cannot be admitted or receiv-
ed; e. g., parol evidence to contradict a written
contract.
INADVERTENCE. Heedlessness; lack of atten-
tion; want of care; carelessness; failure of a per-
son to pay careful and prudent attention to the
progress of a negotiation or a proceeding in court
by which his rights may be affected. Used chiefly
in statutory enumerations of the grounds on which
a judgment or decree may be vacated or set aside;
as, "mistake, inadvertence, surprise, or excusable
neglect." Skinner v. Terry, 107 N.C. 103, 12 S.E.
118. State ex rel. Regis v. District Court of Sec-
ond Judicial Dist. in and for Silver Bow County,
102 Mont. 74, 55 P.2d 1295, 1298.
INIEDIFICATIO. Lat. In the civil law. Build-
ing on another's land with one's own materials,
or on one's own land with another's materials.
INALIENABLE. Not subject to alienation; the
characteristic of those things which cannot be
bought or sold or transferred from one person to
another, such as rivers and public highways, and
certain personal rights; e. g., liberty.
INAUGURATION. The act of installing or in-
ducting into office with formal ceremonies, as the
coronation of a sovereign, the inauguration of a
president or governor, or the consecration of a
prelate. A word applied by the Romans to the
ceremony of dedicating a temple, or raising a man
to the priesthood, after the augurs had been con-
sulted.
INBLAURA. In old records. Profit or product of
ground. Cowell.
INBOARD. In maritime law, and particularly
with reference to the stowage of cargo, this term
is contrasted with "outboard." It does not neces-
sarily mean under deck, but is applied to a cargo
so piled or stowed that it does not project over
the "board" (side or rail) of the vessel. Allen v.
St. Louis Ins. Co., 46 N.Y.Super.Ct. 181.
INBORH. In Saxon law. A security, pledge, or
hypotheca, consisting of the chattels of a person
unable to obtain a personal "borg," or surety.
INBOROW. A forecourt or gate-house. A cer-
tain barony was inborow and outborow between
England and Scotland. Cowell.
INBOUND COMMON. An uninclosed common,
marked out, however, by boundaries.
INC. Incorporated. Goldberg, Bowen & Co. v.
Dimick, 169 Cal. 187, 146 P. 672, 673; Norwood
Bldg. v. Jackson, • Tex.Civ.App., 175 S.W.2d 262,
265.
INCAPACITY. Want of capacity; want of pow-
er or ability to take or dispose; want of legal abil-
ity to act. Ellicott v. Ellicott, 90 Md. 321, 45 A.
183, 48 L.R.A. 58. Inefficiency; incompetency;
lack of adequate power. Travelers' Ins. Co. v.
Richmond, Tex.Com.App., 291 S.W. 1085, 1087.
Legal incapacity
This expression implies that the person in view has the
right vested in him, but is prevented by some impediment
from exercising it; as in the case of minors, femes covert,
lunatics, etc. An administrator has no right until letters
are issued to him. Therefore he cannot benefit (as respects
the time before obtaining letters) by a saving clause in a
statute of limitations in favor of persons under a legal in-
capacity to sue. Cates v. Brattle, 1 Root (Conn.) 187.
Total incapacity
In Workmen's Compensation Acts, such disqualification
from performing the usual tasks of a workman that he can-
not procure and retain employment. Western Indemnity
Co. v. Corder, Tex.Civ.App., 249 S.W. 316, 317; Georgia
Casualty Co. v. Ginn, Tex.Civ.App., 272 S.W. 601, 603;
Moore v. Peet Bros. Mfg. Co., 99 Kan. 443, 162 P. 295, 296.
Incapacity for work is total not only so long as the
injured employee is unable to do any work of any char-
acter, but also while he remains unable, as a result of his
injury, either to resume his former occupation or to pro-
cure remunerative employment at a different occupation
suitable to his impaired capacity. Such period of total in-
capacity may be followed by a period of partial incapacity,
during which the injured employee is able both to procure
and to perform work at some occupation suitable to his
then-existing capacity, but less remunerative than the work
in which he was engaged at the time of his injury. That
situation constitutes "partial incapacity." Austin Bros.
Bridge Co. v. Whitmire, 121 S.E. 345, 346, 31 Ga.App. 560.
Synonymous with "total disability." Consolidation Coal
Co. v. Crislip, 289 S.W. 270, 273, 217 Ky. 371. See Disabili-
ty.
INCARCERATION. Imprisonment; confinement
in a jail or penitentiary. See Imprisonment.
This term is seldom used in law, though found occasion-
ally in statutes. When so used, it appears always to mean
confinement by competent public authority or under due
legal process, whereas "imprisonment" may be effected by
a private person without warrant of law. and if unjustifi-
able is called "false imprisonment." No occurrence of
such a phrase as "false incarceration" has been noted.
INCASTELLARE. To make a building serve as a
castle. Jacob.
INCAUSTUM, or ENCAUSTUM. Ink. Fleta, 1,
2, c. 27, § 5.
INCAUTE FACTUM PRO NON FACTO RABE-
TUB. A thing done unwarily (or unadvisedly)
will be taken as not done. Dig. 28, 4, 1.
INCENDIARY. A house-burner; one guilty of
arson; one who maliciously and willfully sets an-
other person's building on fire.
INCENDIUM /ERE ALIENO NON EXUIT DEBI-
TOREM. Cod. 4, 2, 11. A fire does not release a
debtor from his debt.
INCEPTION. Commencement; opening; initia-
tion. The beginning of the operation of a contract
or will, or of a note, mortgage, lien, etc.; the be-
ginning of a cause or suit in court. Oriental Hotel
Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A.
765, 53 Am.St.Rep. 790.
INCERTA PRO NULLIS HABENTUR. Uncer-
tain things are held for nothing. Da y .Ir.K.B. 33.
INCERTA QUANTITAS VITIAT ACTUM. 1
Rolle R. 465. An uncertain quantity vitiates the
act.
INCERTIE PERSONAE. Uncertain persons, as
posthumous heirs, a corporation, the poor, a ju-
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INCEST
ristic person, or persons who cannot be ascertain-
ed until after the execution of a will. Sohm.Inst.
Rom.L.104, 458.
INCEST. The crime of sexual intercourse or co-
habitation between a man and woman who are re-
lated to each other within the degrees wherein
marriage is prohibited by law. People v. Strat-
ton, 141 Cal. 604, 75 P. 166. Signs v. State, 35 Okl.
Cr. 340, 250 P. 938, 940.
INCESTUOSI. Those offspring incestuously be-
gotten. Mack.Rom.L. § 143.
INCESTUOUS ADULTERY. The elements of
this offense are that defendant, being married to
one person, has had sexual intercourse with an-
other related to the defendant within the prohib-
ited degrees. Cook v. State, 11 Ga. 53, 56 Am.Dec.
410.
INCESTUOUS BASTARDS. Incestuous bastards
are those who are produced by the illegal connec-
tion of two persons who are relations within the
degrees prohibited by law. Civ.Code La. art. 183.
INCH. A measure of length, containing one-
twelfth part of a foot; originally supposed equal
to three barleycorns.
Inch of candle. A mode of sale at one time
in use among merchants. A notice is first given
upon the exchange, or other public place, as to the
time of sale. The goods to be sold are divided
into lots, printed papers of which, and the condi-
tions of sale, are published. When the sale takes
place, a small piece of candle, about an inch long
is kept burning, and the last bidder, when the
candle goes out, is entitled to the lot or parcel for
which he bids. Wharton.
Inch of water. The unit for the measure-
ment of a volume of water or of hydraulic power,
being the quantity of water which, under a given
constant head or pressure, will escape through an
orifice one inch square (or a circular orifice hav-
ing a diameter of one inch) in a vertical plane.
Jackson Milling Co. v. Chandos, 82 Wis. 437, 52 N.
W. 759.
Miner's inch. The quantity of water which will
escape from a ditch or reservoir through an ori-
fice in its side one inch square, the center of the
orifice being six inches below the constant level of
the water, equivalent to about 1.6 cubic feet of
water per minute. Defined by statute in Colorado
as "an inch-square orifice under a five-inch pres-
sure, a five-inch pressure being from the top of the
orifice of the box put into the banks of the ditch
to the surface of water." Mills' Ann.St.Colo. §
4643 (Comp.Laws 1921, § 4111). See Longmire v.
Smith, 26 Wash. 439, 67 P. 246, 58 L.R.A. 308.
The standard miner's inch of water, as fixed by
St.Ca1.1901, p. 660, is the equivalent of 1 1/2 cubic
feet of water per minute measured through any
aperture or orifice, making it equivalent to one-
fortieth of a second foot. Lillis v. Silver Creek &
Panoche Land & Water Co., 32 Cal.App. 668, 163
P. 1040, 1043.
INCHARTARE. To give, or grant, and assure
anything by a written instrument.
INCHOATE. Imperfect; partial; unfinished; be-
gun, but not completed; as a contract not execut-
ed by all the parties. Good v. Crist, 23 Ohio App.
484, 156 N.E. 146, 148. Pacific Freight Lines v.
Pioneer Express Co., 39 Cal.App.2d 609, 103 P.2d
1056, 1058.
INCHOATE DOWER. A wife's interest in the
lands of her husband during his life, which may
become a right of dower upon his death. Smith
v. Shaw, 150 Mass. 297, 22 N.E. 924.
A contingent claim or possibility of acquiring dower by
outliving husband and arises, not out of contract, but as
an institution of law constituting a mere chose in action
incapable of transfer by separate grant but susceptible
of extinguishment, which is effected by wife joining with
husband in deed, which operates as release or satisfaction
of interest and not as conveyance. Auerbach v. Chase Nat.
Bank of City of New York, 296 N.Y.S. 487, 489, 251 App.
Div. 543.
INCHOATE INSTRUMENT. Instruments which
the law requires to be registered or recorded are
said to be "inchoate" prior to registration, in that
they are then good only between the parties and
privies and as to persons having notice. Wilkins
v. McCorkle, 112 Tenn. 688, 80 S.W. 834.
INCHOATE INTEREST. An interest in real es-
tate which is not a present interest, but which
may ripen into a vested estate, if not barred, ex-
tinguished, or divested. Rupe v. Hadley, 113 Ind.
416, 16 N.E. 391.
INCHOATE LIEN. The lien of a judgment, from
the day of its entry, subject to be defeated by its
vacation, becoming a consummate lien if the mo-
tion for a new trial is thereafter overruled; such
lien then relating back to the original entry of
the judgment. Sterling v. Parker-Washington
Co., 185 Mo.App. 192, 170 S.W. 1156, 1159.
INCHOATE RIGHT. In patent law. The right
of an inventor to his invention while his applica-
tion is pending which matures as "property" when
the patent issues. Mullins Mfg. Co. v. Booth, C.
C.A.Mich., 125 F.2d 660, 664.
INCIDENT. Used both substantively and adjec-
tively of a thing which, either usually or natural-
ly and inseparably, depends upon, appertains to,
or follows another that is more worthy. Watts
v. Copeland, 170 S.C. 449, 170 S.E. 780, 783. Used
as a noun, it denotes anything which inseparably
belongs to, or is connected with, or inherent in,
another thing, called the "principal." In this sense,
a court-baron is incident to a manor. Also, less
strictly, it denotes anything which is usually con-
nected with another, or connected for some pur-
poses, though not inseparably. Thus, the right of
alienation is incident to an estate in fee-simple,
though separable in equity. Cromwell v. Phipps,
Sur., 1 N.Y.S. 278; Mount Carmel Fruit Co. v.
Webster, 140 Cal. 183, 73 P. 826.
INCIDENTAL. Depending upon or appertaining
to something else as primary; something neces-
sary, appertaining to, or depending upon another
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INCLUDE
which is termed the principal; something inci-
dental to the main purpose. The Robin Goodfel-
low, D.C.Wash., 20 F.2d 924, 925.
The term "incidental powers," within the rule that a
corporation possesses only those powers which its charter
confers upon it, either expressly or as incidental to its ex-
istence, means such powers as -are directly and immediately
appropriate to the execution of the powers expressly grant-
ed and exist only to enable the corporation to carry out
the purpose of its creation. State ex inf. Harvey v. Mis-
souri Athletic Club, 261 Mo. 576, 170 S. W. 904, 909, L.R.A.
1915C, 876, Ann.Cas.1916D, 931; State ex rel. Barrett v.
First Nat. Bank, 297 Mo. 397, 249 S. W. 619, 622, 30 A.L.R.
918.
INCIDENTAL TO EMPLOYMENT. A risk is
"incidental to employment" within Workmen's
Compensation Act, when it belongs to or is con-
nected with what a workman has to do in fulfill-
ing his contract of service. Barresse v. Standard
Silk Dyeing Co., 10 N.J.Misc. 892, 161 A. 653, 654.
INCIDERE. Lat. In the civil and old English
law. To fall into; to fall out; to happen; to
come to pass. Calvin. To fall upon or under;
to become subject or liable to. Incidere in legem,
to incur the penalty of a law. Brissonius.
INCILE. Lat. In the civil law. A trench. A
place sunk by the side of a stream, so called be-
cause it is cut (incidatur) into or through the
stone or earth. Dig. 43, 21, 1, 5. The term seems
to have included ditches (f ossce) and wells, (pu-
tei.)
INCINERATION. Burning to ashes; destruction
of a substance by fire, as, the corpse of a murder-
ed person.
INCIPITUR. Lat. It is begun; it begins. In old
practice, when the pleadings in an action at law,
instead of being recited at large on the issue-roll,
were set out merely by their commencements, this
was described as entering the incipitur;  e., the
beginning.
INCISED WOUND. In medical jurisprudence. A
cut or incision on a human body; a wound made
by a cutting instrument, such as a razor. Burrill,
Circ.Ev. 693; Whart. & S. Med. Jur. § 808.
INCITE. To arouse; urge; provoke; encourage;
spur on; goad; stir up; instigate; set in motion;
as, to "incite" a riot. Also, generally, in criminal
law to instigate, persuade, or move another to
commit a crime; in this sense nearly synonymous
with "abet." Long v. State, 23 Neb. 33, 36 N.W.
310; United States v. Ault, D.C.Wash., 263 F. 800,
810; Commonwealth v. Egan, 113 Pa.Super. 375,
173 A. 764, 766.
-eINCIVILE. Lat. Irregular; improper; out of the
due course of law.
INCIVILE EST, NISI TOTA LEGE PERSPECTA,
UNA ALIQUA PARTICULA EJUS PROPOSITA,
JUDICARE, VEL RESPONDERE. It is improp-
er, without looking at the whole of a law, to give
judgment or advice, upon a view of any one clause
of it. Dig. 1, 3, 24.
INCIVILE EST, NISI TOTA SENTENTIA IN-
SPECTA, DE ALIQUA PARTE JUDICARE. It is
irregular, or legally improper, to pass an opinion
upon any part of a sentence, without examining
the whole. Hob. 171a.
INCIVISM. Unfriendliness to the state or gov-
ernment of which one is a citizen.
INCLAUSA. In old records. A home close or
inclosure near the house. Paroch. Antiq. 31;
Cowell.
INCLOSE. To surround; to encompass; to bound;
fence, or hem in, on all sides. White Chapel Mem-
orial Ass'n v. Willson, 260 Mich. 238, 244 N.W. 460.
To shut up. "To inclose a jury," in Scotch prac-
tice, is to shut them up in a room by themselves.
Bell. Union Pac. Ry. Co. v. Harris, 28 Kan. 210;
Campbell v. Gilbert, 57 Ala. 569.
INCLOSED LANDS. Lands which are actually
inclosed and surrounded with fences. Kimball v.
Carter, 95 Va. 77, 27 S.E. 823, 38 L.R.A. 570.
INCLOSURE. In English law. Act of freeing
land from rights of common, commonable rights,
and generally all rights which obstruct cultivation
and the productive employment of labor on the
soil.
Land surrounded by some visible obstruction.
Whittet v. Bertsch, 39 R.I. 31, 97 A. 18, 19, L.R.A.
1916E, 710. An artificial fence around one's estate.
See Close.
INCLOSURE ACTS. English statutes regulating
the subject of inclosure. The most notable was
that of 1801.
INCLOSURE COMMISSION ACT, 1845. The
statute 8 and 9 Vict. c. 118, establishing a board
of commissioners for England and Wales and em-
powering them, on the application of persons in-
terested to the amount of one-third of the value of
the land, and provided the consent of persons in-
terested to the amount of two-thirds of the land
and of the lord of the manor (in case the land be
waste of a manor) be ultimately obtained, to in-
quire into the case and to report to parliament as
to the expediency of making the inclosure. 1
Steph.Com. 655.
INCLUDE. (Lat. inclaudere, to shut in, keep
within). To confine within, hold as in an inclo-
sure, take in, attain, shut up, contain, inclose,
comprise, comprehend, embrace, involve. Includ-
ing may, according to context, express an en-
largement and have the meaning of and or in ad-
dition to, or merely specify a particular thing al-
ready included within general words theretofore
used. Miller v. Johnston, 173 N.C. 62, 91 S.E.
593. Prairie Oil and Gas Co. v. Motter, D.C.Kan.,
1 F.Supp. 464, 468; Decorated Metal Mfg. Co. v.
U. S., 12 Ct.Cust.App. 140; In re Sheppard's Es-
tate, 179 N.Y.S. 409, 412, 189 App.Div. 370; Rose
v. State, 184 S.W. 60, 61, 122 Ark. 509; United
States ex rel. Lyons v. Hines, 103 F.2d 737, 740,
70 App.D.C. 36, 122 A.L.R. 674.
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INCLUSIO
INCLUSIO UNIUS EST EXCLUSIO ALTERIUS.
The inclusion of one is the exclusion of another.
The certain designation of one person is an ab-
solute exclusion of all others. n Coke, 58b; Bur-
gin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325.
INCLUSIVE. Embraced; comprehended; com-
prehending the stated limits or extremes. Oppos-
ed to "exclusive."
INCLUSIVE SURVEY. In land law, one which
includes within its boundaries prior claims except-
ed from the computation of the area within such
boundaries and excepted in the grant. Stockton
-v. Morris, 19 S.E. 531, 39 W.Va. 432.
INCOLA. Lat. In the civil law. An inhabitant;
.a dweller or resident.  Properly, one who has
transferred his domicile to any country.
INCOLAS DOMICILIUM FACIT. Residence
creates domicile. Arnold v. United Ins. Co., 1
Johns. Cas., N.Y., 363, 366.
INCOME. The return in money from one's busi-
ness, labor, or capital invested; gains, profits, or
private revenue. In re Slocum, 169 N.Y. 153, 62
N.E. 130.
The gain derived from capital, from labor or effort, or
both combined, including profit or gain through sale or
conversion of capital ; income is not a gain accruing to
capital or a growth in the value of the investment, but is
a gain, a profit, something of exchangeable value, proceed-
ing from the property, severed from the capital, however
invested or employed, and coming in, being derived, that
is, received or drawn by the recipient for his separate use,
benefit, and disposal. Goodrich v. Edwards, 41 S.Ct. 390,
255 U.S. 527, 65 L.Ed. 758. The true increase in amount
of wealth which comes to a person during a stated period
of time. Commissioner of Corporations and Taxation v.
Filoon, 310 Mass. 374, 38 N.E.2d 693, 700.
INCOME TAX. A tax relating to the product or
income from property or from business pursuits;
a tax on the yearly profits arising from property,
professions, trades, or offices; a tax on a person's
income, emoluments, profits, and the like, or the
excess thereof over a certain amount. Interstate
Bond Co. v. State Revenue Commission of Georgia,
50 Ga.App. 744, 179 S.E. 559.
An income tax is not levied upon property, funds, or
profits, but upon the right of an individual or corporation
to receive income or profits. Paine v. City of Oshkosh, 190
Wis. 69, 208 N.W. 790, 791. Under various constitutional
and statutory provisions, a tax on incomes is sometimes
said to be an excise tax and not a tax on property, Hatties-
burg Grocery Co. v. Robertson, 126 Miss. 34, 88 So. 4, 5,
25 A.L.R. 748; nor on business, but a tax on the proceeds
arising therefrom, Young v. Illinois Athletic Club, 310 Ill.
75, 141 N.E. 369, 371, 30 A.L.R. 985. But in other cases an
income tax is said to be a property and not a personal or
excise tax: Commonwealth v. P. Horillard Co., 129 Va. 74,
105 S.E. 683, 684; Kennedy v. Commissioner of Corpora-
tions & Taxation, 256 Mass. 426, 152 N.E. 747, 748.
An "excise tax" is an indirect charge for the privilege
of following an occupation or trade, or carrying on a busi-
ness; while an "income tax" is a direct tax imposed upon
income, and is as directly imposed as is a tax on land.
United States v. Philadelphia, B. & W. R. Co., D.C.Pa., 262
F. 188, 190.
INCOME TAX DEFICIENCY. Exists whenever
taxpayer has failed to make adequate return of
income, notwithstanding lack of determination by
commissioner or his agents. Moore v. Cleveland
Ry. Co., C.C.A.Ohio, 108 F.2d 656, 659.
INCOMMODUM NON SOLVIT ARGUMENTUM.
An inconvenience does not destroy an argument.
INCOMMUNICATION. In Spanish law. The
condition of a prisoner who is not permitted to
see or to speak with any person visiting him dur-
ing his confinement. A person accused cannot be
subjected to this treatment unless it be expressly
ordered by the judge, for some grave offense, and
it cannot be continued for a longer period than is
absolutely necessary. This precaution is resorted
to for the purpose of preventing the accused from
knowing beforehand the testimony of the witness-
es, or from attempting to corrupt them and con-
cert such measures as will efface the traces of his
guilt. As soon, therefore, as the danger of his
doing so has ceased, the interdiction ceases like-
wise. Escriche.
INCOMMUTABLE. Not capable of or entitled to
be commuted. See Commutation.
INCOMPATIBILITY. Incapability of existing or
being exercised together.
Thus the relations of landlord and of tenant cannot exist
in one man at the same time in reference to the same land.
"Incompatibility" which at common law operates to vacate
one office by reason of incumbency of another exists when
the character and nature of offices or relation to each other
are such that one person should not hold both because of
the contrariety and antagonism which would result toward
incumbent of one office in attempt to discharge duties of
other office faithfully and impartially. It is apparent when
the holder of one office is subordinate to or has supervision
over the other, or has the power of appointment, removal,
or punishment of that other, or the audit of his accounts,
or the regulation of his compensation. State ex rel.
Schenck v. Barrett, 121 Conn. 237, 184 A. 379, 381.
INCOMPATIBLE. Not compatible, incapable of
harmonizing or agreeing, mutually repelling, in-
congruous. And two or more relations, offices,
functions, or rights which cannot naturally, or may
not legally, exist in or be exercised by the same
person at the same time, are said to be incompati-
ble. People v. Green, 46 How.Prac., N.Y., 170;
Com. v. Sheriff, 4 Serg. & R. (Pa.) 276; State v.
Johnson, 37 N.M. 280, 21 P.2d 813, 89 A.L.R. 1368.
See, also, Incompatibility.
INCOMPETENCY. Lack of ability, legal quali-
fication, or fitness to discharge the required duty.
In re Leonard's Estate, 95 Mich. 295, 54 N.W. 1082.
In New York, the word "incompetency" is used to desig-
nate the condition or legal status of a person who is unable
or unfitted to manage his own affairs by reason of insanity,
imbecility, or feeble-mindedness, and for whom, therefore,
a committee may be appointed; and such a person is desig-
nated and "incompetent." In re Palestine's Estate, 270 N.
Y.S. 844, 151 Misc. 100.
In French law. Inability or insufficiency of a
judge to try a cause brought before him, proceed-
ing from lack of jurisdiction.
INCOMPETENT EVIDENCE. Evidence which is
not admissible under the established rules of evi-
dence; evidence which the law does not permit to
be presented at all, or in relation to the particular
matter, on account of lack of originality or of
some defect in the witness, the document, or the
nature of the evidence itself. Texas Brewing Co.
v. Dickey, Tex.Civ.App., 43 S.W. 578; Bell v.
Bumstead, 14 N.Y.S. 697, 60 Hun. 580.
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INCREASE
As applied to evidence, the word "incompetent" means
not proper to be received; inadmissible, as distinguished
from that which the court should admit for the considera-
tion of the jury, though they may not find it worthy of
credence.
INCONCLUSIVE. That which may be disproved
or rebutted; not shutting out further proof or
consideration. Applied to evidence and presump-
tions.
INCONSISTENT. Mutually repugnant or contra-
dictory; contrary, the one to the other, so that
both cannot' stand, but the acceptance or establish-
ment of the one implies the abrogation or aban-
donment of the other; as, in speaking of "incon-
sistent defenses," or the repeal by a statute of
"all laws inconsistent herewith." Borough of
Oakland v. Board of Conservation and Develop-
ment, 98 N.J.L. 99, 118 A. 787, 788. Berry v. City
of Fort Worth, Tex.Civ.App., 110 S.W.2d 95, 103.
INCONSULTO. Lat. In the civil law. Unadvis-
edly; unintentionally. Dig. 28, 4, 1.
INCONTESTABILITY CLAUSE. In life policy
means that within the limits of the coverage, the
policy shall stand unaffected by any defense that
it was invalid in its inception or thereafter became
invalid by reason of a condition broken by insured.
Berkshire Life Ins. Co. v. Weinig, 290 N.Y. 6, 47
N.E.2d 418, 421. Jolley v. Jefferson Standard Life
Ins. Co., 199 N.C. 269, 154 S.E. 400, 402.
INCONTINENCE. Want of chastity; indulgence
in unlawful carnal connection. State v. Hewlin,
128 N.C. 571, 37 S.E. 952.
INCONTINENT!. See In Continenti.
INCONVENIENCE. In the rule that statutes
should be so construed as to avoid "inconveni-
ence," this means, as applied to the public, the sac-
rifice or jeoparding of important public interests
or hampering the legitimate activities of govern-
ment or the transaction of public business, and,
as applied to individuals, serious hardship or in-
justice. Black, Interp.Laws, 102; Betts v. U. S.,
C.C.A.Mass., 132 F. 237, 65 C.C.A. 452.
INCOPOLITUS. A proctor or vicar.
INCORPORALIA BELLO NON ADQUIRUNTUR.
Incorporeal things are not acquired by war. 6
Maule & S. 104.
INCORPORAMUS. We incorporate. One of the
words by which a corporation may be created in
England. 1 Bl.Comm. 473; 3 Steph.Comm. 173.
INCORPORATE. To create a corporation; to
confer a corporate franchise upon determinate
persons.
To declare that another document shall be tak-
en as part of the document in which the declara-
tion is made as much as if it were set out at length
therein. Railroad Co. v. Cupp, 8 Ind.App. 388, 35
N.E. 703.
INCORPORATED LAW SOCIETY. A society of
attorneys and solicitors whose function it is to
carry out the acts of parliament and orders of
court with reference to articled clerks; to keep
an alphabetical roll of solicitors; to issue certifi-
cates to persons duly admitted and enrolled, and
to exercise a general control over the conduct of
solicitors in practice, and to bring cases of mis-
conduct before the judges. 3 Steph. Corn. 217.
INCORPORATION. The act or process of form-
ing or creating a corporation; the formation of
a legal or political body, with the quality of per-
petual existence and succession, unless limited by
the act of incorporation. Abbott v. Limited Mut.
Compensation Ins. Co., 30 Cal.App.2d 157, 85 P.2d
961, 964.
The method of making one document of any
kind become a part of another separate document
by referring to the former in the latter, and de-
claring that the former shall be taken and con-
sidered as a part of the latter the same as if it
were fully set out therein. This is more fully
described as "incorporation by reference." If the
one document is copied at length in the other, it
is called "actual incorporation."
In the civil law. The union of one domain to
another.
INCORPOREAL. Without body; not of material
nature; the opposite of "corporeal," (q. v.).
INCORPOREAL CHATTELS. A class of incor-
poreal rights growing out of or incident to things
personal; such as patent-rights and copyrights.
2 Steph.Comm. 72. See Boreel v. New York, 2
Sandf. (N.Y.) 559.
INCORPOREAL HEREDITAMENTS. See Here-
ditaments.
INCORPOREAL PROPERTY. In the civil law.
That which consists in legal right merely. The
same as choses in action at common law.
INCORPOREAL THINGS. In the civil law.
Things which can neither be seen nor touched,
such as consist in rights only, such as the mind
alone can perceive. Inst. 2, 2; Civ. Code La. art.
460; Sullivan v. Richardson, 33 Fla. 1, 14 So. 692.
INCORRIGIBLE. Incapable of being corrected,
amended, or improved; with respect to juvenile
offenders, unmanageable by parents or guardians.
People v. Purcell, 70 Colo. 399, 201 P. 881. Shinn
v. Barrow, Tex.Civ.App., 121 S.W.2d 450, 451.
INCORRIGIBLE ROGUE. A species of rogue or
offender, described in the statutes 5 Geo. IV. c. 83,
and 1 & 2 Vict. c. 38. 4 Steph.Comm. 309.
INCORRUPTIBLE. That which cannot be affect-
ed by immoral or debasing influences, such as
bribery or the hope of gain or advancement.
INCREASE. Enlargement, growth, development,
increment, addition, accession, extension, produc-
tion, profit, interest, issue. Heitzig v. Goetten, 347
Ill. 619, 180 N.E. 428, 433. The produce of land;
the offspring of animals. Sorrells v. Sigel-Cam-
pion Live Stock Commission Co., 27 Colo.App. 154,
148 P. 279, 280.
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INCREASE
INCREASE, AFFIDAVIT OF. Affidavit of pay-
ment of increased costs, produced on taxation.
INCREASE, COSTS OF. In English law. It was
formerly a practice with the jury to award to the
successful party in an action the nominal sum of
40s. only for his costs; and the court assessed by
their own officer the actual amount of the success-
ful party's costs; and the amount so assessed,
over and above the nominal sum awarded by the
jury, was thence called "costs of increase." Lush,
Com. Law Pr. 775. The practice has now wholly
ceased. Rapal. & Law.
INCREMENT. An increasing, growth in bulk,
quantity, number, value, etc.; enlargement, in-
crease. That which is gained or added; the act
or process of increasing, augmenting, or growing;
enlargement, that which is added; increase; op-
posed to decrement. In re Corning's Will, 289 N.
Y.S. 1101, 1103, 160 Misc. 434.
INCREMENTUM. Lat. Increase or improve-
ment, opposed to decrementum or abatement.
INCRIMINATE. To charge with crime; to ex-
pose to an accusation or charge of crime; to in-
volve oneself or another in a criminal prosecution
or the danger thereof; as, in the rule that a
witness is not bound to give testimony which
would tend to incriminate him. In re Dendy, Tex.
Civ.App., 175 S.W.2d 297, 302.
INCRIMINATING ADMISSION. An acknowledg-
ment of facts tending to establish guilt. People
v. Gibbs, 349 Ill. 83, 181 N.E. 628, 630.
INCRIMINATING CIRCUMSTANCE. A fact or
circumstance, collateral to the fact of the commis-
sion of a crime, which tends to show either that
such a crime has been committed or that some
particular person committed it. Davis v. State,
51 Neb. 301, 70 N.W. 984.
INCRIMINATORY STATEMENT. A statement
which tends to establish guilt of the accused or
from which, with other facts, his guilt may be in-
ferred, or which tends to disprove some defense.
Shellman v. State, 157 Ga. 788, 122 S.E. 205, 207.
INCROACHMENT. An unlawful gaining upon the
right or possession of another. See Encroach-
ment.
INCULPATE. To impute blame or guilt; to ac-
cuse; to involve in guilt or crime.
INCULPATORY. In the law of evidence. Going
or tending to establish guilt; intended to estab-
lish guilt; criminative. Burrill, Circ. Ev. 251, 252;
People v. White, 35 Cal.App.2d 61, 94 P.2d 617, 621.
INCUMBENT. A person who is in present posses-
sion of an office; one who is legally authorized to
discharge the duties of an office. State v. Blake-
more, 15 S.W. 960,104 Mo. 340.
In ecclesiastical law, the term signifies a clergy-
man who is in possession of a benefice.
INCUMBER. To incumber land is to make it sub-
ject to a charge or liability; e. g., by mortgaging
it. Incumbrances include not only mortgages and
other voluntary charges, but also liens, lites pen-
dentes, registered judgments, and writs of execu-
tion, etc. Sweet; Newhall v. Insurance Co., 52
Me. 181.
INCUMBRANCE. Any right to, or interest in,
land which may subsist in another to the diminu-
tion of its value, but consistent with the passing
of the fee. Huyck v. Andrews, 113 N.Y. 81, 20 N.
E. 581, 3 L.R.A. 789, 10 AntSt.Rep. 432; Miller v.
Schwinn, Inc., 113 F.2d 748, 751, 752, 753, 72 App.
D.C. 282.
A claim, lien, charge, or liability attached to
and binding real property. Harrison v. Railroad
Co., 91 Iowa, 114, 58 N.W. 1081; Johnson v. Bridge,
60 Cal.App. 629, 213 P. 512, 513. An incumbrance
may be a mortgage, Funk v. Voneida, 11 Serg. &
R. (Pa.) 112, 14 Am.Dec. 617; a judgment lien,
Bowman v. Franklin Ins. Co., 40 Md. 631; an at-
tachment, Kelsey v. Remer, 43 Conn. 129, 21 Am.
Rep. 638; an inchoate right of dower, Bigelow v.
Hubbard, 97 Mass. 195; a mechanic's lien, Redmon
v. Insurance Co., 51 Wis. 293, 8 N.W. 226, 37 Am.
Rep. 830; a lease, Shunk v. Fuller, 118 Kan. 682,
236 P. 449, 451; Estep v. Bailey, 94 Or. 59, 185 P.
227, 229; restriction in deed, Hyman v. Boyle, 239
Mich. 357, 214 N.W. 163, 164; encroachment of a
building, Gamorsil Realty Corporation v. Graef,
220 N.Y.S.221, 222, 128 Misc. 596; an easement
or right of way, Krotzer v. Clark, 178 Cal. 736,
174 P..657 658; Thackeray v. Knight, 57 Utah, 21,
192 P. 263, 265; accrued and unpaid taxes, Ex
parte Helm, 209 Ala. 1, 95 So. 546; the statutory
right of redemption, Roy v. F. M. Martin & Son,
16 Ala.App. 650, 81 So. 142, 143.
The term "incumbrance" is sometimes used to
denote a burden or charge on personal property
as e. g. a chattel mortgage on a stock of goods.
Hartford Fire Ins. Co. v. Jones, 31 Ariz. 8, 250 P.
248, 251.
INCUMBRANCER. The holder of an incum-
brance, e. g., a mortgage, on the estate of another.
De Voe v. Rundle, 33 Wash. 604, 74 P. 836.
INCUMBRANCES, COVENANT AGAINST. See
Covenant.
INCUR. To have liabilities cast upon one by act
or operation of law, as distinguished from con-
tract, where the party acts affirmatively. Beek-
man v. Van Dolsen, 70 Hun, 288, 24 N.Y.S. 414.
Boise Development Co. v. City of Boise, 26 Idaho
347, 143 P. 531, 534.
INCURABLE DISEASE. Any disease which has
reached an incurable stage in the patient afflicted
therewith, according to general state of knowl-
edge of the medical profession. Freeman v. State
Board of Medical Examiners, 54 Okl. 531, 154 P.
56, 57, L.R.A.1916D, 436; State Board of Medical
Examiners v. Jordan, 92 Wash. 234, 158 P. 982, 985.
INCURRAMENTUM. L. Lat. The liability to a
fine, penalty, or amercement. Cowell.
INDE. Lat. Thence; thenceforth; thereof;
thereupon; for that cause.
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INDEFENSUS
INDE DAVE LEGES NE FORTIOR OMNIA POS-
SET. Laws are made to prevent the stronger
from having the power to do everything. Da y . Ir.
K. B. 36.
INDEBITATUS. Lat. Indebted. Nunquam in-
debitatus, never indebted. The title of the plea
substituted in England for nil debet.
INDEBITATUS ASSUMPSIT. Lat. Being indebt-
ed, he promised or undertook. That form of the
action of assumpsit in which the declaration al-
leges a debt or obligation to be due from the de-
fendant, and then avers that, in consideration
thereof, he promised to pay or discharge the same.
This form of action is brought to recover in damages the
amount of the debt or demand and upon the trial the jury
will, according to evidence, give verdict for whole or part
of that sum; 3 Bla.Com. 155; Selw.N.P. 68; whereas
debt and covenant proceed directly for the debt, and dam-
ages are given only for the detention of the debt.
INDEBITI SOLUTIO. Lat. In the civil and
Scotch law. A payment of what is not due. When
made through ignorance or by mistake, the
amount paid might be recovered back by an ac-
tion termed "conditio indebiti." (Dig. 12, 6.) Bell.
INDEBITUM. In the civil law. Not due or owing.
(Dig. 12, 6.) Calvin.
INDEBTEDNESS. The state of being in debt,
without regard to the ability or inability of the
party to pay the same. 1 Story, Eq. Jur. 343;
Jewell v. Nuhn, 173 Iowa 112, 155 N.W. 174, 177,
Ann.Cas.1918D, 356. The owing of a sum of mon-
ey upon a certain and express agreement. City
of Perry v. Johnson, 233 P. 679, 680, 106 Okl. 32.
Strictly the word implies an . absolute or complete lia-
binity. McCrea v. First Nat. Bank, 162 Minn. 455, 203 N.W.
220; West Florida Grocery Co. v. Teutonia Fire Ins. Co., 74
Fla. 220, 77 So. 209, 211, L.R.A.1918B, 968. A contingent
liability, such as that of a surety before the principal has
made default, does not constitute indebtedness. On the
other hand, the money need not be immediately payable.
Obligations yet to become due constitute indebtedness, as
well as those already due. St. Louis Perpetual Ins. Co. v.
Goodfellow, 9 Mo. 149. And in a broad sense and in com-
mon understanding the word may mean anything that is
due and owing. Jones v. Heinzle, 75 Ind.App. 431, 130 N.E.
815, 816.
Involuntary indebtedness. Of a county, a lia-
bility imposed by law, which the county is not
privileged to evade or postpone. Dexter Horton
Trust & Savings Bank v. Clearwater County, D.C.
Idaho, 235 F. 743, 756; Wingate v. Clatsop Coun-
ty, 71 Or. 94, 142 P. 561, 562.
Voluntary indebtedness. One which a county
Is at liberty to evade or postpone until means
are provided for the payment of the expenses in-
cident thereto; opposed to involuntary indebted-
ness. Wingate v. Clatsop County, 71 Or. 94, 142
P. 561, 562.
INDECENCY. An act against good behavior and
a just delicacy. Timmons v. U. S., C.C.A.Ohio,
85 F. 205, 30 C.C.A. 74.
This is scarcely a technical term of the law, and is not
susceptible of exact definition or description in its juridical
uses. The question whether or not a given act, publica-
tion, etc., is indecent is for the court and jury in the par-
ticular case.
INDECENT. Offensive to common propriety; of-
fending against modesty or delicacy; grossly
vulgar; obscene; lewd; unseemly; unbecoming;
indecorous; unfit to be seen or heard. Hutcheson
v. State, 24 Ga.App. 54, 99 S.E. 715; Wood v. State,
45 Ga.App. 783, 165 S.E. 908.
Indecent assault. The act of a male person
taking indecent liberties with the person of a
female. Martin v. Jansen, 113 Wash. 290, 193 P.
674, 675; Commonwealth v. Gregory, 132 Pa.Super.
507, 1 A.2d 501, without her consent and against
her will, but with no intent to commit the crime
of rape.
Indecent exhibition. Any exhibition contra
bonos mores, as the taking a dead body for the
purpose of dissection or public exhibition. 2 T.R.
734.
Indecent exposure. Exposure to sight of the
private parts of the body in a lewd or indecent
manner in a public place. It is an indictable of-
fense at common law, and by statute in many of
the states.  Commonwealth v. Broadland, 315
Mass. 20, 51 N.E.2d 961, 962. See, further, Ex-
posure of Person.
Indecent liberties. In the statutory offense of
"taking indecent liberties with the person of a
female child," this phrase means such liberties as
the common sense of society would regard as in-
decent and improper. According to some author-
ities, it involves an assault or attempt at sexual
intercourse, (State v. Kunz, 90 Minn. 526, 97 N.
W. 131,) but according to others, it is not neces-
sary that the liberties or familiarities should have
related to the private parts of the child, (People v.
Hicks, 98 Mich. 86, 56 N.W. 1102.)
Indecent publications. Such as are offensive to
modesty and delicacy; obscene; lewd; tending to
the corruption of morals. Dunlop v. U. S., 17 S.
Ct. 375, 165 U.S. 486, 41 L.Ed. 799.
Public indecency. This phrase has no fixed le-
gal meaning, is vague and indefinite, and cannot,
in itself, imply a definite offense. The courts, by
a kind of judicial legislation, in England and the
United States, have usually limited the operation
of the term to public displays of the naked person,
the publication, sale, or exhibition of obscene
books and prints, or the exhibition of a monster,
—acts which have a direct bearing on public mor-
als, and affect the body of society. Irven v. State,
138 Tex.Cr.R. 368, 136 S.W.2d 608, 609.
INDECIMABLE. In old English law. That which
is not titheable, or liable to pay tithe. 2 Inst. 490.
INDEFEASIBLE. That which cannot be defeat-
ed, revoked, or made void. This term is usually
applied to an estate or right which cannot be de-
feated.
INDEFENSUS. Lat. In old English practice.
Undefended; undenied by pleading. A defendant
who makes no defense or plea. Blount.
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INDEFINITE
INDEFINITE. Without fixed boundaries or dis-
tinguishing characteristics; not definite, determin-
ate, or precise. In re Knoll's Estate, 262 N.Y.S.
619, 146 Misc. 613.
INDEFINITE FAILURE OF ISSUE. A failure
of issue not merely at the death of the party
whose issue are referred to, but at any subsequent
period, however remote. 1 Steph.Comm. 562. A
failure of issue whenever it shall happen, sooner
or later, without any fixed, certain, or definite pe-
riod within which it must happen. 4 Kent.Comm.
274. Anderson v. Jackson, 16 Johns. (N.Y.) 399,
8 Am.Dec. 330.
INDEFINITE LEGACY. See Legacy.
INDEFINITE NUMBER. A number which may
be increased or diminished at pleasure.
INDEFINITE PAYMENT. In Scotch law. Pay-
ment without specification. Indefinite payment is
where a debtor, owing several debts to one cred-
itor, makes a payment to the creditor, without
specifying to which of the debts he means the pay-
ment to be applied. See Bell.
INDEFINITUM AEQUIPOLLET UNIVERSAL!.
The undefined is equivalent to the whole. 1 Vent.
368.
INDEFINITUM SUPPLET LOCUM UNIVERSAL-
IS. The undefined or general supplies the place
of the whole. Branch. Princ. 4 Co. 77.
INDEMNIFICATUS. Lat. Indemnified. See In-
demnify.
INDEMNIFY. To save harmless; to secure
against loss or damage; to give security for the
reimbursement of a person in case of an anticipat-
ed loss falling upon him. Hasbrouck v. Carr, 19
N.M. 586, 145 P. 133, 136.
To make good; to compensate; to make reim-
bursement to one of a loss already incurred by
him. Cousins v. Paxton & Gallagher Co., 98 N.
W. 277, 122 Iowa 465; U. S. Fidelity & Guaranty
Co. v. Williams, 148 Md. 289, 129 A. 660, 664.
INDEMNIS. Lat. Without hurt, harm, or dam-
age; harmless.
INDEMNITEE. The person who, in a contract
of indemnity, is to be indemnified or protected by
the other. Hasbrouck v. Carr, 19 N.M. 586, 145
P. 133, 136.
INDEMNITOR. The person who is bound, by an
indemnity contract, to indemnify or protect the
other. Hasbrouck v. Carr, 19 N.M. 586, 145 P.
133, 136.
INDEMNITY. A collateral contract or assurance,
by which one person engages to secure another
against an anticipated loss or to prevent him from
being damnified by the legal consequences ot an
act or forbearance on the part of one of the par-
ties or of some third person. National Bank of
Tifton v. Smith, 142 Ga. 663, 83 S.E. 526, 528, L.
R.A.1915B, 1116.
The term is also used to denote a compensa-
tion given to make the person whole from a loss
already sustained; as where the government gives
indemnity for private property taken by it for
public use. Proctor v. Dillon, 235 Mass. 538, 129
N.E. 265, 269. It means, also, restitution or reim-
bursement. Travelers Ins. Co. v. Georgia Power
Co., 51 Ga.App. 579, 181 S.E. 111.
A legislative act, assuring a general dispensa-
tion from punishment or exemption from prosecu-
tion to persons involved in offenses, omissions of
official duty, or acts in excess of authority, is call-
ed an indemnity; strictly it is an act of indemnity.
Loss. See Loss.
Thus, insurance is a contract of indemnity. So an
indemnifying bond is given to a sheriff who fears to pro-
ceed under an execution where the property is claimed by a
stranger.
INDEMNITY AGAINST LIABILITY. A con-
tract to indemnify when liability of person indem-
nified arises, irrespective of .whether person indem-
nified has suffered actual loss. Indemnity against
loss, on the other hand, does not render indemnitor
liable until person indemnified makes payment or
sustains loss. City of Topeka v. Ritchie, 102 Kan.
384, 170 P. 1003, 1004.
INDEMNITY BOND. A bond for the payment of
a penal sum conditioned to be void if the obligor
shall indemnify and save harmless the obligee
against some anticipated loss.
INDEMNITY CONTRACT. A contract between
two parties whereby the one undertakes and
agrees to indemnify the other against loss or dam-
age arising from some contemplated act on the
part of the indemnitor, or from some responsibil-
ity assumed by the indemnitee, or from the claim
or demand of a third person, that is, to make good
to him such pecuniary damage as he may suffer.
See Wicker v. Hoppock, 6 Wall. 99, 18 L.Ed. 752.
INDEMNITY LANDS. Lands granted to rail-
roads, in aid of their construction, being portions
of the public domain, to be selected in lieu of other
parcels embraced within the original grant, but
which were lost to the railroad by previous dis-
position or by reservation for other purposes.
Altschul v. Clark, 39 Or. 315, 65 P. 991.
INDEMNITY POLICY. As distinguished from
general liability policy, a policy on which no action
can be maintained except to indemnify for money
actually paid. Most v. Massachusetts Bonding &
Ins. Mo.App., 196 S.W. 1064, 1065.
See Indemnity insurance and Liability insurance
under Insurance.
INDEMPNIS. The old form of writing indemnis.
Townsh. Pl. 19. So, indempnificatus for indemni-
ficatus.
INDENIZATION. The act of making a denizen,
or of naturalizing.
INDENT, n. In American law. A certificate or
indented certificate issued by the government of
the United States at the close of the Revolution,
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INDEX
for the principal or interest of the public debt.
Webster; U. S. v. Irwin, 26 Fed.Cas. 546.
INDENT, v. To cut in a serrated or waiving line.
In old conveyancing, if a deed was made by more
parties than one, it was usual to make as many
copies of it as there were parties, and each was
cut or indented (either in acute angles, like the
teeth of a saw, or in a waving line) at the top or
side, to tally or correspond with the others, and
the deed so made was called an "indenture." An-
ciently, both parts were written on the same piece
of parchment, with some word or letters written
between them through which the parchment was
cut, but afterwards, the word or letters being
omitted, indenting came into use, the idea of which
was that the genuineness of each part might be
proved by its fitting into the angles cut in the
other. But at length even this was discontinued,
and at present the term serves only, to give name
to the species of deed executed by; two or more
parties, as opposed to a deed-poll (q. v.) 2 Bl.
Comm, 295.
To bind by indentures; to apprentice; as to in-
dent a young man to a shoe-maker. Webster.
INDENTURE. A deed to which two or more per-
sons are parties, and in which these enter into
reciprocal and corresponding grants or obligations
towards each other; whereas a deed-poll is prop-
erly one in which only the party making it exe-
cutes it, or binds himself by it as a deed, though
the grantors or grantees therein may be several
in number. 3 Washb, Real Prop. 311, See In-
dent, v.
INDENTURE OF A FINE. Indentures made and
engrossed at the chirographer's office and deliv-
ered to the cognizor and the cognizee, usually be-
ginning with the words: "Hcec est finalis con-
cordia." And then reciting the whole proceed-
ings at length. 2 Bla, Corn. 351.
INDENTURE OF APPRENTICESHIP. A con-
tract in two parts, by which a person, generally
a minor, is bound to serve another in his trade,
art, or occupation for a stated time, on condition
of being instructed in the same.
INDEPENDENCE. The state or condition of be-
ing free from dependence, subjection, or control.
A state of perfect irresponsibility. Political in-
dependence is the attribute of a nation or state
which is entirely autonomous, and not subject
to the government, control, or dictation of any
exterior power.
INDEPENDENT. Not dependent; not subject to
control, restriction, modification, or limitation
from a given outside source.
INDEPENDENT ADJUSTER. A person, firm or
corporation who holds himself or itself out for
employment to more than one insurance company,
is not a regular employee of the company, does
not work exclusively for one company and is paid
in each case assigned for time consumed and ex-
penses incurred. Cole v. State, 37 N.Y.S.2d 1002,
1006, 179 Misc. 172.
INDEPENDENT ADVICE. Concerning a trust
deed or will which must be shown where a fidu-
ciary relationship exists, means that the donor had
the preliminary benefit of conferring fully and pri-
vately upon the subject of his intended gift with a
person who was not oni tv competent to inform him
correctly as to its legal effect, but who was, fur-
thermore, so disassociated from the interests of
the donee as to be in a position to advise with
the donor impartially and confidentially as to the
consequences to himself of his proposed benefac-
tion. Madden v. Glathart, 125 Kan. 466, 265 P. 42,
45.
INDEPENDENT CONTRACT, See Contract.
INDEPENDENT CONTRACTOR. One who, exer-
cising an independent employment, contracts to
do a piece of work according to his own methods
and without being subject to the control of his
employer except as to the result of the work. Peo-
ple v. Orange County Road Const, Co., 175 N.Y.
84, 67 N.E. 129, 65 L.R.A. 33. Fox v. Dunning,
124 Okl. 228, 255 P. 582, 584; Bell v. State, 153 Md.
333, 138 A. 227, 228, 58 A.L.R. 1051.
One who exercises an independent employment and con-
tracts to do a piece of work according to his own judgment
and methods, and without being subject to his employer
except as to the results of the work, and who has the right
to employ and direct the action of the workmen, independ-
ently of such employer and freed from any superior author-
ity in him to say how the specified work shall be done, or
what the laborers shall do as it progresses. Johnson v.
Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 593. It is
very generally held that the right of control as to the mode
of doing the work contracted for is the principal considera-
tion in determining whether one employed is an "independ-
ent contractor" or servant. Thompson v. Twiss, 90 Conn.
444, 97 A. 328, 330, L.R.A.1916E, 506. If the employee is
merely subject to the control or direction of the employer
as to the result to be obtained, he is an independent con-
tractor ; if he is subject to the control of the employer as
to the means to be employed, he is not an independent con-
tractor. Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114
So. 503. Nettleship v. Shipman, 161 Wash. 292, 296 P. 1056,
1057.
INDEPENDENT COVENANT, See Covenant.
INDEPENDENTER SE HABET ASSECURATIO
A VIAGGIO NAVIS. The voyage insured is an
independent or distinct thing from the voyage of
the ship. 3 Kent, Comm. ,318, note.
INDETERMINATE. That which is uncertain, or
not particularly designated; as if I sell you one
hundred bushels of wheat, without stating what
wheat. 1 Bouv. Inst. no. 950.
INDETERMINATE OBLIGATION. See Obliga-
tion.
INDETERMINATE SENTENCE. A sentence to
imprisonment for the maximum period defined by
law, subject to termination by the parole board or
other agency at any time after service of the mini-
mum period. Such a sentence is invalid unless
specifically authorized by statute. 24 C.J.S. p.
1217.
INDEX. A book containing references, alphabeti-
cally arranged, to the contents of a series or col-
lection of volumes; or an addition to a single
volume or set of volumes containing such refer-
ences to its contents.
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INDEX
INDEX ANIMI SERMO. Language is the expo-
nent of the intention. The language of a statute
or instrument is the best guide to the intention.
Broom, Max, 622,
INDIAN COUNTRY. As the term is used in the
federal statutes, is a country to which the Indians
retained the right of use and occupancy, involving
under certain restrictions freedom of action and of
enjoyment in their capacity as a distinct people,
and ceases to be such when their title is extin-
guished, unless by virtue of some reservation ex-
pressed at the time and clearly appearing. Schaap
v. United States, C.C.A.Ark., 210 F. 853, 855; Royal
Brewing Co. v. Missouri, K. & T. Ry. Co., D.C.Kan.,
211 F. 146, 148. This term does not necessarily im-
port territory owned and occupied by Indians, but
it means all those portions of the United States
designated by this name in the legislation of con-
gress. Waters v. Campbell, 4 Sawy. 121, Fed.Cas.
No.17,264.
INDIAN DEPREDATIONS ACTS. As early as
May 19, 1796, an act was passed by congress, pro-
viding an eventual indemnification to citizens of
the United States for depredations committed by
Indians in taking or destroying their property;
1 St.L. 472. Other acts of a similar character were
passed from time to time. By the act of March 3,
1891, congress conferred on the court of claims ju-
risdiction of claims for property taken and de-
stroyed by Indians.
INDIAN RESERVATION. A part of public do-
main set aside by proper authority for use and
occupation of tribe or tribes of Indians. Peters v.
Pauma School Dist. of San Diego County, 91 Cal.
App, 792, 267 P. 576, 577; United States v. Parton,
D.C.N.C., 46 F.Supp. "843, 844.
INDIAN TITLE. Claim of Indian tribes of right,
because of immemorial occupancy, to roam certain
territory to exclusion of any other Indians. North-
western Bands of Shoshone Indians v. U. S., Ct,
Cl., 65 S.Ct. 690, 692, 324 U.S. 335, 89 L.Ed. 985.
INDIAN TRIBE. A separate and distinct com-
munity or body of the aboriginal Indian race of
men found in the United States. Montoya v. U.
S., 21 S.Ct. 358, 180 U.S. 261, 45 L.Ed. 521.
INDIANS. The aboriginal inhabitants of North
America. Frazee v. Spokane County, 29 Wash.
278, 69 P. 782.
INDICARE, Lat. In the civil law. To show or
discover. To fix or tell the price of a thing. Cal-
vin. To inform against; to accuse.
INDICATIF. An abolished writ by which a pros-
ecution was in some cases removed from a court-
christian to the queen's bench. Enc. Lond,
INDICATION. In the law of evidence. A sign
or token; a fact pointing to some inference or
conclusion. Burrill, Circ. -EY. 251, 252, 263, 275.
INDICATIVE EVIDENCE. This is not evidence
properly so called, but the mere suggestion of evi-
dence proper, which may possibly be procured if
the suggestion is followed up. Brown.
INDICAVIT. In English practice. A writ of pro-
hibition that lies for a patron of a church, whose
clerk is sued in the spiritual court by the clerk
of another patron, for tithes amounting to a fourth
part of the value of the living. 3 Bl.Comm. 91;
3 Steph.Comm. 711. So termed from the emphatic
word of the Latin form. Reg.Orig. 35b, 36.
IN DICTA.  Signs; indications. Circumstances
which point to the existence of a given fact as
probable, but not certain. For example, "indicia of
partnership" are any circumstances which would
induce the belief that a given person was in reali-
ty, though not ostensibly, a member of a given
firm.
The term is much used in the civil law in a sense
nearly or entirely synonymous with circumstantial
evidence. It denotes facts which give rise to in-
ferences, rather than the inferences themselves.
Graham Ice Cream Co. v. Petros, 127 Neb. 172, 254
N.W. 869.
INDICIUM. In the civil law. A sign or mark.
A species of proof, answering very nearly to the
circumstantial evidence of the common law. Best,
Pres. p. 13, § 11, note; Wills, Circ. Ev, 34.
INDICT, See Indictment.
INDICTABLE. Proper or necessary to be prose-
cuted by process of indictment. Indictable offenses
embrace common-law offenses or statutory of-
fenses the punishments for which are infamous.
Lakes v. Goodloe, 195 Ky, 240, 242 S.W. 632, 639.
INDICTED. Charged in an indictment with a
criminal offense. See Indictment.
INDICTEE. A person indicted.
INDICTIO. In old public law. A declaration; a
proclamation. Indictio belli, a declaration or in-
diction of war. An indictment.
INDICTION, CYCLE OF. A mode of computing
time by the space of fifteen years, instituted by
Cbnstantine the Great; originally the period for
the payment of certain taxes. Some of the char-
ters of King Edgar and Henry III. are dated by
indictions. Wharton.
INDICTMENT. An accusation in writing found
and presented by a grand jury, legally convoked
and sworn, to the court in which it is impaneled,
charging that a person therein named has done
some act, or been guilty of some omission, which,
by law, is a public offense, punishable on indict-
ment. Kennedy v. State, 86 Tex.Cr.R. 450, 216
S.W. 1086; State v. Engler, 217 Iowa 138, 251 N.W.
88.
A presentment differs from an indictment in that it is an
accusation made by a grand jury of their own motion,
either upon their own observation and knowledge, or upon
evidence before them; while an indictment is preferred at
the suit of the government, and is usually framed in the
first instance by the prosecuting officer of the government,
and by him laid before, the grand jury, to be found or
ignored. An information resembles in its form and sub-
stance an indictment, but is filed at the mere discretion of
the proper law officer of the government, without the inter-
vention or approval of a grand jury, and an affidavit is a
charge made and preferred by an individual. 2 Story,
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INDIVIDUAL
Const. §§ 1784, 1786; People v. Foster, 198 Cal. 112, 243 P.
667, 670.
In Scotch law. The form of process by which
a criminal is brought to trial at the instance of the
lord advocate. Where a private party is a princi-
pal prosecutor, he brings his charge in what is
termed the "form of criminal letters."
Joint Indictment
When several offenders are joined in the same
indictment, as when principals in the first and
second degree, and accessaries before and after
the fact, are all joined in the same indictment. 2
Hale, P.C. 173; Brown.
INDICTMENT DE FELONY EST CONTRA PA-
CEM DOMINI REGIS, CORONAM ET DIGNITA-
TEM SUAM, IN GENERE ET NON IN INDI-
VIDUO; QUIA IN ANGLIA NON EST INTER-
REGNUM. Jenk. Cent. 205. Indictment for fel-
ony is against the peace of our lord the king, his
crown and dignity in general, and not against his
individual person; because in England there is
no interregnum.
INDICTOR. He who causes another to be indicted.
The latter is sometimes called the "indictee."
INDIFFERENT. Impartial; unbiased; disinter-
ested. People v. Vermilyea, 7 Cow. (N.Y.) 122;
Fox v. Hills, 1 Conn. 307.
INDIGENA. In old English law. A subject born;
one born within the realm, or naturalized by act
of parliament. Co.Litt. 8a. The opposite of "ali-
enigena," (q. v.).
INDIGENT. In a general sense, one who is needy
and poor, or one who has not sufficient property
to furnish him a living nor anyone able to support
him to whom he is entitled to look for support.
Storrs Agricultural School v. Whitney, 54 Conn.
342, 8 A. 141.
INDIGENT INSANE PERSON. An insane per-
son with insufficient estate to pay for his mainte-
nance in the hospital, after providing for those
who could claim his support. Massachusetts Gen
eral Hospital v. Inhabitants of Belmont, 233 Mass.
190, 124 N.E. 21, 23.
INDIGNITY. In the law of divorce, a species of
cruelty addressed to the mind, sensibilities, self-
respect, or personal honor of the subject, rather
than to the body, and defined as "unmerited con-
temptuous conduct towards another; any action
towards another which manifests contempt for
him; contumely, incivility, or injury accompanied
with insult." Goodman v. Goodman, 80 Mo.App.
281; 1 Bish. Mar. & Div. § 826; O'l-Tern v. O'Hern,
206 Mo.App. 651, 228 S.W. 533, 536.
The phrase "indignities to the person," as used in stat-
utes, has reference to bodily indignities, as distinguished
from such as may be offered to the mind, sensibilities, or
reputation. Kurtz v. Kurtz, 38 Ark. 123. But compare Mil-
ler v. Miller, 78 N.C. 105.
INDIRECT. Not direct in relation or connection;
not having an immediate bearing or application;
Black's Law Dictionary Revised 4th Ed.-58
not related in the natural way. Runyon v. West-
ern & Southern Life Ins. Co., 48 Ohio App. 251,
192 N.E. 882, 883. Almost always used in law in
opposition to "direct," though not the only anti-
thesis of the latter word, as the terms "collateral"
and "cross" are sometimes used in contrast with
"direct"
As to indirect "Attack," "Confession," "Con-
tempt," and "Tax," see those titles.
INDIRECT EVIDENCE. Is that which only tends
to establish the issue by proof of various facts
sustaining by their consistency the hypothesis
claimed. It consists of both inferences and pre-
sumptions. Lake County v. Neilon, 44 Or. 14, 74
P. 212, 214.
See, also, Circumstantial Evidence; Inference;
Presumption.
INDIRECT TAX. A tax upon some right or priv-
ilege or corporate franchise. Madison Suburban
Utility Dist. of Davidson County v. Carson, 232
S.W.2d 277, 280, 191 Tenn. 300; a tax laid upon the
happening of an event as distinguished from its
tangible fruits. Chickering v. Commissioner of
Internal Revenue, C.C.A.1, 118 F.2d 254, 258.
INDISPENSABLE. That which cannot be spared,
omitted, or dispensed with.
INDISPENSABLE EVIDENCE. That without
which a particular fact cannot be proved. Ball-
inger's Ann. Codes & St. Or. 1901, § 689 (Code
1930, § 9-113).
INDISPENSABLE PARTIES. In a suit in equity,
those who not only have an interest in the sub-
ject-matter of the controversy, but an interest of
such a nature that a final decree cannot be made
without either affecting their interests or leaving
the controversy in such a condition that its final de-
termination may be wholly inconsistent with equi-
ty and good conscience. Kendig v. Dean, 97 U.S.
425, 24 L.Ed. 1061. State of Washington v. United
States, C.C.A.Or. & Wash., 87 F.2d 421, 426, 427,
429, 431.
INDISTANTER. Forthwith; without delay.
INDITEE. L. Fr. In old English law. A per-
son indicted. Mirr. c. 1, § 3; 9 Coke, pref.
INDIVIDUAL. As a noun, this term denotes a
single person as distinguished from a group or
class, and also, very commonly, a private or nat-
ural person as distinguished from a partnership,
corporation, or association; but it is said that
this restrictive signification is not necessarily in-
herent in the word, and that it may, in proper cas-
es, include artificial s persons. State v. Bell Tele-
phone Co., 36 Ohio St. 310, 38 Am.Rep. 583.
As an adjective, "individual" means pertaining
or belonging to, or characteristic of, one single
person, either in opposition to a firm, association,
or corporation, or considered in his relation there-
to.
INDIVIDUAL ASSETS. In the law of partner-
ship, property belonging to a member of a part-
nership as his separate and private fortune, apart
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INDIVIDUAL
from the assets or property belonging to the firm
as such or the partner's interest therein.
INDIVIDUAL DEBTS. Such as are due from a
member of a partnership in his private or per-
sonal capacity, as distinguished from those due
from the firm or partnership. Goddard v. Hap-
good, 25 Vt. 360, 60 Am.Dec. 272.
INDIVIDUAL SYSTEM OF LOCATION. A term
formerly used in Pennsylvania to designate the
location of public lands by surveys, in which the
land called for by each warrant was separately
surveyed. Ferguson v. Bloom, 144 Pa. 549, 23 A.
49.
INDIVIDUALLY. Separately and personally, as
distinguished from jointly or officially, and as
opposed to collective or associate action or com-
mon interest. Southern Distributing Co. v. Car-
raway, 189 N.C. 420, 127 S.E. 427, 428.
INDIVIDUUM. Lat. In the civil law. That can-
not be divided. Calvin.
INDIVISIBLE. Not susceptible of division or ap-
portionment; inseparable; entire. Thus, a con-
tract, covenant, consideration, etc., may be divisi-
ble or indivisible;  e., separable or entire. Garon
v. Credit Foncier Canadien, 37 R.I. 273, 92 A. 561,
564. See, also, Contract.
INDIVISUM. Lat. That which two or more per-
sons hold in common without partition; undivided.
INDORSAT. In old Scotch law. Indorsed. 2
Pitc, Crim, Tr. 41.
INDORSE. To write a name on the back of a
paper or document. Bills of exchange and prom-
issory notes are indorsed by a party's writing his
name on the back. Hartwell v. Hemmenway, 7
Pick. (Mass.) 117.
"Indorse" is a technical term, having sufficient
legal certainty without words of more particular
description. Brooks v. Edson, 7 Vt. 351.
See In Dorso,
INDORSEE. The person to whom a bill of ex-
change, promissory note, bill of lading, etc., is
assigned by indorsement.
INDORSEE IN DUE COURSE. An indorsee in
due course is one who, in good faith, in the or-
dinary course of business, and for value, before its
apparent maturity or presumptive dishonor, and
without knowledge of its actual dishonor, acquires
a negotiable instrument duly indorsed to him, or
indorsed generally, or payable to the bearer. More
v. Finger, 128 Cal. 313, 60 P. 933.
INDORSEMENT. The act of a payee, drawee,
accommodation indorser, or holder of a bill, note,
check, or other negotiable instrument, in writing
his name upon the back of the same, with or with-
out further or qualifying words, whereby the
property in the same is assigned and transferred
to another.
That which is so written upon the back of a
negotiable instrument. State v. Hearn, 115 Ohio
St. 340, 154 N.E. 244, 245.
In the law of negotiable instruments, a new and substan-
tive contract by which title to the instrument is transferred
and by which indorser becomes a party to the instrument
and is liable, on certain conditions for its payment. John-
son v. Beickey, 64 Utah, 43, 228 P. 189, 191. In this respect
indorsement differs from a common-law assignment. Jones
County Trust & Savings Bank v. Kurt, 192 Iowa, 965, 182
N.W. 409, 413.
One who writes his name upon a negotiable instrument,
otherwise than as a maker or acceptor, and delivers it, with
his name thereon, to another person, is called an "indors-
er," and his act is called "indorsement."
The word "indorsement" is also used with reference to
writs, insurance policies, certificates of stock, etc. The
term as used in the Uniform Stock Transfer Act contem-
plates a writing passing or attempting to pass title or an
interest. Stoltz v. Carroll, 99 Ohio St. 289, 124 N.E. 226,
231. As applied to a writ or warrant "indorsement" is an
entry made on the back thereof. Gondas  Gondas, 99
N.J.Eq. 473, 134 A. 615, 617.
Accommodation indorsement
In the law of negotiable instruments, one made by a
third person without any consideration, but merely for the
benefit of the holder of the instrument, or to enable the
maker to obtain money or credit on it. Unless otherwise
explained, it is understood to be a loan of the indorser's
credit without restriction. Young v. Exchange Bank of
Kentucky, 152 Ky. 293, 153 S.W. 444, 445, Ann.Cas.1915B,
148.
Blank indorsement
One made by the mere writing of the indorser's name on
the back of the note or bill, without mention of the name
of any person in whose favor the indorsement is made, but
with the implied understanding that any lawful holder may
fill in his own name above the indorsement if he so chooses.
Northern Trading Co. v. Drexel State Bank of Chicago, 37
N.D. 521, 164 N.W. 151, 154; Aufderheide v. Moeller, 221
Mo.App. 442, 281 S.W. 965, 967.
Conditional indorsement
One by which the indorser annexes some condition (other
than the failure of prior parties to pay) to his liability.
The condition may be either precedent or subsequent. 1
Daniel, Neg.Inst.  697.
Full indorsement
One by which the indorser orders the money to be paid
to some particular person by name; it differs from a blank
indorsement, which consists merely in the name of the
indorser written on the back of the instrument. Kilpatrick
v. Heaton, 3 Brev., S.C., 92; Lee v. Chillicothe Branch of
State Bank, 15 Fed.Cas. 153.
Irregular indorsement
One made by a third person before delivery of the note
to the payee; an indorsement in blank by a third person
above the name of the payee, or when the payee does not
indorse at all. Bank of Bellows Falls v. Dorset Marble Co.,
61 Vt. 106, 17 Atl. 43; Metropolitan Bank v. Muller, 50
La.Ann. 1278, 24 South. 295, 69 Am.St.Rep. 475.
Proper indorsement
Such indorsement as the law merchant requires to
authorize payment to the holder of the instrument. Secu-
rity State Bank v. State Bank of Brantford, N. D., 31 N.D.
454, 154 N.W. 282, 283.
Qualified indorsement
One which restrains or limits, or qualifies or enlarges,
the liability of the indorser, in any manner different from
what the law generally imports as his true liability, deduc-
ible from the nature of the instrument. Chitty, Bills, 261;
Stover Bank v. Welpman, Mo.App., 284 S.W. 177, 180. A
transfer of a bill of exchange or promissory note to an
•
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INDUMENT
indorsee, without any liability to the indorser. The words
usually employed for this purpose are "sans recours," with-
out recourse. 1 Bouv.Inst. No. 1138.
Regular indorsement
An indorsement in blank by a third person under the
name of the payee or after delivery of the note to him.
Bank of Bellows Falls v. Dorset Marble Co., 61 Vt. 106, 17
Atl. 42.
Restrictive indorsement
One which stops the negotiability of the instrument, or
which contains such a definite direction as to the payment
as to preclude the indorsee from making any further trans-
fer of the instrument. People's Bank v. Jefferson County
Say . Bank, 106 Ala. 524, 17 So. 728, 54 Am.St.Rep. 59.
Defined by statute in some states as an indorsement which
either prohibits the further negotiation of the instrument,
or constitutes the indorsee the agent of the indorser, or
vests the title in the indorsee in trust for or to the use of
some other person. Negotiable Instruments Law N. D. §
36 (Comp.Laws 1913, § 6921) ; Bates' Ann.St.Ohio 1904,
3172h (Gen.Code, § 8141).
Special indorsement
An indorsement in full, which specifically names the
indorsee. Carolina Sa y . Bank v. Florence Tobacco Co., 45
S. C; 373, 23 S.E. 139.
Special indorsement of writ
In English practice. The writ of summons in an action
may, under Order iii. 6, be indorsed with the particulars
of the amount sought to be recovered in the action, after
giving credit for any payment or set-off ; and this special
indorsement (as it is called) of the writ is applicable in all
actions where the plaintiff seeks merely to recover a debt
or liquidated demand in money payable by the defendant,
with or without interest, arising upon a contract, express
or implied, as, for instance, on a bill of exchange, promis-
sory note, check, or other simple contract debt, or on a
bond or contract under seal for payment of a liquidated
amount of money, or on a statute where the sum sought to
be recovered is a fixed sum of money or in the nature of a
debt, or on a guaranty, whether under seal or not. Brown.
INDORSER. He who indorses; e., being the
payee or holder, writes his name on the back of
a bill of exchange, etc.
INDUBITABLE PROOF. Evidence which is not
only found credible, but is of such weight and
directness as to make out the facts alleged beyond
a doubt. Jermyn v. McClure, 195 Pa. 245, 45 A.
938.
INDUCE. To bring on or about, to affect, cause,
to influence to an act or course of conduct, lead by
persuasion or reasoning, incite by motives, prevail
on. State v. Stratford, 55 Idaho 65, 37 P.2d 681,
682.
INDUCEMENT. In Contracts. The benefit or
advantage which the promisor is to receive from
a contract is the inducement for making it. Col-
lins v. Harris, 130 Wash. 394, 227 P. 508, 509.
In Criminal Evidence. Motive; that which leads
or tempts to the commission of crime. Burrill,
Circ. Ev. 283.
In Pleading. That portion of a declaration or
of any subsequent pleading in an action which is
brought forward by way of explanatory introduc-
tion to the main allegations. Brown. Houston v.
Tyler, 140 Mo. 252, 36 S.W. 654.
INDUCLE. In International Law. A truce; a
suspension of hostilities; an agreement during
war to abstain for a time from warlike acts.
In Old Maritime Law. A period of twenty days
after the safe arrival of a vessel under bottomry,
to dispose of the cargo, and raise the money to
pay the creditor, with interest.
In Old English Practice. Delay or indulgence
allowed a party to an action; further time to ap-
pear in a cause. Bract. fol. 352b; Fleta, lib. 4, c..
5, § 8.
In Scotch Practice. Time allowed for the per-
formance of an act. Time to appear to a citation.
Time to collect evidence or prepare a defense.
Induciae legales. In Scotch law. The days be-
tween the citation of the defendant and the day of
appearance; the days between the test day and
day of return of the writ.
INDUCT. To put in enjoyment or possession, es-
pecially to introduce into possession of an office
or benefice, with customary ceremonies, to bring
in, initiate, to be put formally in possession, in-
augurate or install. State ex rel. Slattery v.
Raupp, 303 Mo. 684, 263 S.W. 834, 835.
INDUCTI SUNT IN CARCEREM ET IMPAR-
CATI. See Imparcare.
INDUCTIO. Lat. In the civil law. Obliteration,
by drawing the pen or stylus over the writing.
Dig. 28, 4; Calvin.
INDUCTION. In ecclesiastical law. The cere-
mony by which an incumbent who has been in-
stituted to a benefice is vested with full posses-
sion of all the profits belonging to the church, so
that he becomes seised of the temporalities of the
church, and is then complete incumbent. It is
performed by virtue of a mandate of induction di-
rected by the bishop to the arch-deacon, who either
performs it in person, or directs his precept to
one or more other clergymen to do it. Phillim.
Ecc. Law, 477.
In military law. Induction is complete where a
man successfully passes the physical examination
and is accepted by the army for training and serv-
ice, and all the steps prescribed by statute and
regulations having the force of law have been
taken, whether he takes the oath administered to
him or not. United States ex rel. Diamond v.
Smith, D.C.Mass., 47 F.Supp. 607, 609.
INDULGENCE. In the Roman Catholic Church.
A remission of the punishment due to sins, granted
by the pope or church, and supposed to save the
sinner from purgatory. Its abuse led to the Re-
formation in Germany. Wharton. Forbearance,
(q. v.)
INDULTO. In Ecclesiastical law. A dispensa-
tion granted by the pope to do or obtain something
contrary to the common law.
In Spanish Law. The condonation or remission
of the punishment imposed on a criminal for his
offense. This power is exclusively vested in the
king.
INDUMENT. Endowment, (q. v.)
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INDUSTRIAL
INDUSTRIAL AND PROVIDENT SOCIETIES.
Societies formed in England for carrying on any
labor, trade, or handicraft, whether wholesale or
retail, including the buying and selling of land
and also (but subject to certain restrictions) the
business of banking.
INDUSTRIAL SCHOOLS. Schools (established
by voluntary contribution) in which industrial
training is provided, and in which children are
lodged, clothed, and fed, as well as taught.
INDUSTRIAL TRACK. One connecting with
main line track and used and equipped for mov-
ing freight in carloads to or from one or more
industries thereby reached and served, in inciden-
tal services such as loading, reloading, or storing,
and in incidental switching or yard movements.
Gulf, C. & S. F. R. Co. v. Texas & P. R. Co., C.C.A.
Tex., 4 F.2d 904, 906, 907; Miller Engineering Co.
v. Louisiana Ry. & Na y . Co., 144 La. 786, 81, So.
314, 317.
INDUSTRIAM, PER. Lat. A qualified property
in animals ferce naturce may be acquired per in-
dustriam,  e., by a man's reclaiming and mak-
ing them tame by art, industry, and education;
or by g o confining them within his own immediate
power that they cannot escape and use their nat-
ural liberty. 2 Steph.Comm. 5.
INDUSTRY. Any department or branch of art,
occupation, or business conducted as a means of
livelihood or for profit; especially, one which
employs much labor and capital and is a distinct
branch of trade. Chicago, R. I. & P. Ry. Co. v.
State, 83 Okl. 161, 201 P. 260, 264; Dessen v. De-
partment of Labor and Industries of Washington,
190 Wash. 69, 66 P.2d 867, 869.
INEBRIATE. A person addicted to the use of
intoxicating liquors; an habitual drunkard. Tay-
lor v. Koenigstein, 128 Neb. 809, 260 N.W. 544.
Maher v. Brown, 225 Iowa 341, 280 N.W. 553, 554.
INE, CODE OF. A code of the West Saxons dat-
ing from 688 to 695. Adopted by Alford, probably
with alterations. Seebohm, Tribal Customs, 386.
INEFFICIENCY. Quality of being incapable or
indisposed to do the things required of an officer.
Holmes v. Osborn, 57 Ariz. 522, 115 P.2d 775, 783.
INELIGIBILITY. Disqualification or legal inca-
pacity to be elected to an office. Thus, an alien
or naturalized citizen is ineligible to be elected
president of the United States. Carroll v. Green,
148 Ind. 362, 47 N.E. 223.
This incapacity arises from various causes; and a person
may be incapable of being elected to one office who may be
elected to another; the incapacity may also be perpetual
or temporary.
INELIGIBLE. Disqualified to be elected to an
office; also disqualified to hold an office if elected
or appointed to it. State v. Murray, 28 Wis. 99, 9
Am.Rep. 489; State ex rel. Graham v. Hall, 73 N.
D. 428, 15 N.W.2d 736, 739.
INESSE POTEST DONATION!, MODUS, CONDI-
TIO SIVE CAUSA; UT MODUS EST; SI CON-
DITIO; QUIA CAUSA. In a gift there may be
manner, condition, and cause; as [ut] introduces
a manner; if, [si,] a condition; because, [quia,]
a cause. Dyer, 138.
INESCAPABLE PERIL. Within last clear chance
doctrine, means peril which the plaintiff is help-
less to avoid by his own efforts, but which re-
quires action on part of defendant to avert it.
Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 555,
560.
INEST DE JURE. Lat. It is implied of right;
it is implied by law.
INEVITABLE. Incapable of being avoided; for-
tuitous; transcending the power of human care,
foresight, or exertion to avoid or prevent, and
therefore suspending legal relations so far as to
excuse from the performance of contract obliga-
tions, or from liability for* consequent loss.
INEVITABLE ACCIDENT. An unavoidable acci-
dent; one produced by an irresistible physical
cause; an accident which cannot be .prevented by
human skill or foresight, but results from natural
causes, such as lightning or storms, perils of the
sea, inundations or earthquakes, or sudden death
or illness. By irresistible force is meant an in-
terposition of human agency, from its nature
and power absolutely uncontrollable. Brousseau
v. The Hudson, 11 La.Ann. 428; Leland v. Empire
Engineering Co., 108 A. 570, 575, 135 Md. 208.
An accident is "inevitable", so as to preclude recovery on
ground of negligence, if person by whom it occurs neither
has nor is legally bound to have sufficient power to avoid
it or prevent its injuring another. Stephens v. Virginia
Elec. & Power Co., 184 Va. 94, 34 S.E.2d 374, 377.
Inevitable accident occurs where a vessel is pursuing a
lawful avocation in a lawful manner, using the proper pre-
cautions against danger, and an accident occurs. The
highest degree of caution that can be used is not required.
It is enough that it is reasonable under the circumstances;
such as is usual in similar cases, and has been found by
long experience to be sufficient to answer the end in view,-
the safety of life and property. The Grace Girdler, 7 Wall.
196, 19 L.Ed. 113. Inevitable accident is only when the dis-
aster happens from natural causes, without negligence or
fault on either side, and when both parties have endeav-
ored, by every means in their power, with due care and
caution, and with a proper display of nautical skill, to pre-
vent the occurrence of the accident. The Philip J. Kenny,
C.C.A.N.J., 60 F.2d 457, 458.
INEWARDUS. A guard; a watchman. Domes-
day.
INFALISTATUS. In old English law. Exposed
upon the sands, or seashore. A species of punish-
ment mentioned in Hengham. Cowell.
INFAMIA. Lat. Infamy; ignominy or disgrace.
By infamia juris is meant infamy established by law as
the consequence of crime; infamia facti is where the party
is supposed to be guilty of such crime, but it has not been
judicially proved. Comm. v. Green, 17 Mass. 515, 541.
INFAMIS. Lat. In Roman law. A person whose
right of reputation was diminished (involving the
loss of some of the rights of citizenship) either
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on account of his infamous avocation or because
of conviction for crime. Mackeld. Rom. Law, §
135.
INFAMOUS. Shameful or disgraceful. Stevens
v. Wilber, 136 Or. 599, 300 P. 329, 330.
INFAMOUS CRIME. See Crime.
INFAMOUS PUNISHMENT. See Punishment.
INFAMY. A qualification of a man's legal status
produced by his conviction of an infamous crime
and the consequent loss of honor and credit, which,
at common law, rendered him incompetent as a
witness, and by statute in some jurisdictions en-
tails other disabilities. State v. Clark, 60 Kan.
450, 56 P. 767.
INFANCY. Minority; the state of a person who
is under the age of legal majority,—at common
law, twenty-one years. According to the sense in
which this term is used, it may denote the condi-
tion of the person merely with reference to his
years, or the contractual disabilities which non-
age entails, or his status with regard to other
powers or relations. Keating v. Railroad Co., 94
Mich. 219, 53 N.W. 1053.
Natural infancy. A period of non-responsible
life, which ends with the seventh year. Wharton.
INFANGENTHEF. In old English law. A privi-
lege of lords of certain manors to judge any thief
taken within their fee. See Outfangthef.
INFANS. Lat. In the civil law. A child under
the age of seven years; so called "quasi impos
fandi," (as not having the faculty of speech.)
Cod. Theodos, 8, 18, 8.
INFANS NON MULTUM A FURIOSO DISTAT.
An infant does not differ much from a lunatic.
Bract. 1. 3, c. 2, § 8; Dig. 50, 17, 5, 40; 1 Story,
Eq. Jur. §§ 223, 224, 242.
INFANT. A person within age, not of age, or not
of full age; a person under the age of twenty-one
years; a minor. Co. Litt. 171b; 1 Bl.Comm. 463-
466; 2 Kent, Comm. 233. Beavers v. Southern Ry.
Co., 212 Ala. 600, 103 So. 887, 889.
INFANTIA. Lat. In the civil law. The period of
infancy between birth and the age of seven years.
Calvin.
INFANTICIDE. The murder or killing of an in-
fant soon after its birth. The fact of the birth
distinguishes this act from "feticide" or "procur-
ing abortion," which terms denote the destruction
of the fetus in the womb. See, also, Prolicide.
INFANTS' MARRIAGE ACT. The statute 18 &
19 Viet. c. 43. By virtue of this act every infant,
(if a male, of twenty, or, if a female, of seventeen,
years,—section 4,) upon or in contemplation of
marriage, may, with the sanction of the chancery
division of the high court, make a valid settle-
ment or contract for a settlement of property.
Wharton.
INFANZON. In Spanish law. A person of noble
birth, who exercises within his domains and in-
heritance no other rights and privileges than those
conceded to him. Escriche.
INFECTION. In medical jurisprudence. The
transmission of disease or disease germs from one
person to another, either directly by contact with
morbidly affected surfaces, or more remotely
through inhalation, absorption of food or liquid
tainted with excremental matter, contact with con-
taminated clothing or bedding, or other agencies.
A distinction is sometimes made between "infection" and
"contagion," by restricting the latter term to the communi-
cation of disease by direct contact. Grayson v. Lynch, 163
U.S. 468, 16 S.Ct. 1064, 41 L.Ed. 230. But "infection" is the
wider term and in proper use includes "contagion," and is
frequently extended so as to include the local inauguration
of disease from other than human sources, as from mias-
mas, poisonous plants, etc. In another, and perhaps more
accurate sense, contagion is the entrance or lodgment of
pathogenic germs in the system as a result of direct con-
tact; infection is their fixation in the system or the in-
auguration of disease as a consequence. In this meaning,
infection does not always result from contagion, and on
the other hand it may result from the introduction of dis-
ease germs into the system otherwise than by contagion.
Auto-infection. The communication of disease
from one part of the body to another by mechani-
cal transmission of virus from a diseased to a
healthy part.
Infectious disease. One capable of being trans-
mitted or communicated by means of infection.
INFEFT. In Scotch law. To give seisin or pos-
session of lands; to invest or enfeoff. 1 Karnes,
Eq. 215.
INFEFTMENT. In Old Scotch law. Investiture
or infeudation, including both charter and seisin.
1 Forb. Inst. pt. 2, p. 110.
In Later law. Saisine, or the instrument of
possession. Bell.
INFENSARE CURIAM. Lat. An expression ap-
plied to a court when it suggested to an advocate
something which he had omitted through mistake
or ignorance. Spelman.
INFEOFFMENT. The act or instrument of feoff-
ment. In Scotland it is synonymous with "sai-
sine," meaning the instrument of possession. For-
merly it was synonymous with "investiture." Bell.
INFERENCE. In the law of evidence. A truth
or proposition drawn from another which is sup-
posed or admitted to be true. A process of rea-
soning by which a fact or proposition sought to
be established is deduced as a logical consequence
from other facts, or a state of facts, already
proved or admitted. Whitehouse v. Bolster, 95
Me. 458, 50 A. 240; Joske v. Irvine, 91 Tex. 574, 44
S.W. 1059.
A deduction which the reason of the jury makes from
the facts proved, without an express direction of law to
that effect.  Puget Sound Electric Ry. v. Benson, C.C.A.
Wash., 253 F. 710, 714.
A "presumption" and an "inference" are not the same
thing, a presumption being a deduction which the law
requires a trier of facts to make, an inference being a
deduction which the trier may or may not make, according
to his own conclusions; a presumption is mandatory, an
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INFERENCE
inference, permissible. Cross v. Passumpsic Fiber Leather
Co., 90 Vt. 397, 98 A. 1010, 1014; Joyce v. Missouri & Kan-
sas Telephone Co., Mo.App., 211 S.W. 900, 901.
INFERENCE ON INFERENCE, RULE OF. Means
that one presumption or inference may not be
based upon another. McManimen v. Public Serv-
ice Co. of Northern Illinois, 317 Ill.App. 649, 47
N.E.2d 385.
INFERENTIAL. In the law of evidence. Operat-
ing in the way of inference; argumentative. Pre-
sumptive evidence is sometimes termed "inferen-
tial." Corn. v. Harman, 4 Pa. 272.
INFERENTIAL FACTS. Such as are established
not directly by testimony or other evidence, but
by inferences or conclusions drawn from the evi-
dence. Railway Co. v. Miller, 141 Ind. 533, 37 N.E.
343.
INFERIOR. One who, in relation to another, has
less power and is below him; one who is bound
to obey another. He who makes the law is the
superior: he who is bound to obey it, the inferior.
1 Bouv. Inst. no. 8.
INFERIOR COURT. This term may denote any
court subordinate to the chief appellate tribunal
in the particular judicial system; but it is com-
monly used as the designation of a court of spe-
cial, limited, or statutory jurisdiction, whose rec-
ord must show the existence and attaching of
jurisdiction in any given case, in order to give
presumptive validity to its judgment. In re
Heard's Guardianship, 174 Miss. 37, 163 So. 685,
687.
The English courts of judicature are classed generally
under two heads,—the superior courts and the inferior
courts; the former division comprising the courts at West-
minster, the latter comprising all the other courts in gen-
eral, many of which, however, are far from being of
inferior importance in the common acceptation of the
word. Brown.
INFEUDATION. The placing in possession of a
freehold estate; also the granting of tithes to lay-
men.
INFICIARI. Lat. In the civil law. To deny; to
deny one's liability; to refuse to pay a debt or
restore a pledge; to deny the allegation of a plain-
tiff; to deny the charge of an accuser. Calvin.
INFICIATIO. Lat. In the civil law. Denial;
the denial of a debt or liability; the denial of the
claim or allegation of a party plaintiff. Calvin.
INFIDEL. One who does not believe in the exis-
tence of a God who will reward or punish in this
world or that which is to come. Hale v. Everett,
53 N.H. 54, 16 Am.Rep. 82. One who professes
no religion that can bind his conscience to speak
the truth. 1 Greenl. Ev. § 368. One who does not
recognize the inspiration or obligation of the Holy
Scriptures, or generally recognized features of the
Christian religion. Gibson v. Ins. Co., 37 N.Y. 580.
INFIDELIS. In Old English law. An infidel or
heathen.
In Feudal law. One who violated fealty.
INFIDELITAS. In feudal law. Infidelity; faith-
lessness to one's feudal oath. Spelman.
INFIDUCIARE. In old European law. To pledge
property. Spelman.
INFIHT. Sax. An assault made on a person in-
habiting the same dwelling.
INFINITUM IN JURE REPROBATUR. That
which is endless is reprobated in law. 12 Coke,
24. Applied to litigation.
INFIRM. Weak, feeble. The testimony of an
"infirm" witness may be taken de bene esse in
some circumstances. 1 P. Wms. 117.
INFIRMATIVE. In the law of evidence. Having
the quality of diminishing force; having a ten-
dency to weaken or render infirm. 3 Benth. Jud.
Ev. 14; Best, Pres. § 217. Exculpatory is used by
some authors as synonymous. Wills, Circ. Ev.
120; Best, Pres. § 217.
INFIRMATIVE CONSIDERATION. In the law
of evidence. A consideration, supposition, or hy-
pothesis of which the criminative facts of a case
admit, and which tends to weaken the inference
or presumption of guilt deducible from them.
Burrill, Circ. Ev. 153-455.
INFIRMATIVE FACT. In the law of evidence.
A fact set up, proved, or even supposed, in opposi-
tion to the criminative facts of a case, the tend-
ency of which is to weaken the force of the in-
ference of guilt deducible from them. 3 Benth.
Jud. Ev. 14; Best, Pres. § 217, et seq.
INFIRMATIVE HYPOTHESIS. A term some-
times used in criminal evidence to denote an hy-
pothesis or theory of the case which assumes the-
defendant's innocence, and explains the crimina-
tive evidence in a manner consistent with that as-
sumption.
INFIRMITY. In an application for insurance an
ailment or disease of a substantial character,
which apparently in some material degree impairs
the physical condition and health of the applicant
and increases the chance of his death or sickness
and which if known, would have been likely to,
deter the insurance company from issing the poli-
cy. Eastern Dist. Piece Dye Works v. Travelers'
Ins. Co., 234 N.Y. 441, 138 N.E. 401, 404, 26 A.L.R..
1505.
INFLUENCE. See Undue Influence.
INFORMAL. Deficient in legal form; inartificial--
ly drawn up.
INFORMALITY. Want of legal form. State v.
Gallimon, 24 N.C. 377; Franklin v. Mackey, 16.
Serg. & R. (Pa.) 118; Hunt v. Curry, 37 Ark. 108.
INFORMATION. An accusation exhibited against
a person for some criminal offense, without an in-
dictment. 4 Bl.Comm. 308. An accusation in the.
nature of an indictment, from which it differs only-
in being presented by a competent public officer
on his oath of office, instead of a grand jury on.
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INFRA
their oath. 1 Bish. Crim. Proc. § 141; People v.
Sponsler, 46 N.W. 459, 1 Dak. 289; Howard v.
State, 143 Tenn. 539, 227 S.W. 36. A written ac-
cusation sworn to before a magistrate, upon which,
an indictment is afterwards founded. Common-
wealth v. Cooke, 55 Pa.Super.Ct. 435, 439.
The word is also frequently used in the law in its sense
of communicated knowledge. Masline v. New York, N. FL
& H. R. Co., 95 Conn: 702, 112 A. 639, 640. And affidavits
are frequently made, and pleadings and other documents
verified, on "information and belief."
In French Law. The act or instrument which contains
the depositions of witnesses against the accused. Poth.
Proc. Civil, § 2, art. 5.
Criminal information. A formal accusation of
crime, differing from an indixtment only in that
it is preferred by a prosecuting officer instead of
by a grand jury. People v. Gahagan, 368 Ill. 475,
14 N.E.2d 838, 839.
Information in the nature of a quo warranto.
A proceeding against the usurper of a franchise
or office. Jarman v. Mason, 102 Okl. 278, 229 P.
459, 460. See Quo Warranto.
Information of intrusion. A proceeding insti-
tuted by the state prosecuting officer against in-
truders upon the public domain. Gen. St. Mass.
c. 141 (Gen. Laws, c. 245) ; Corn. v. Hite, 6 Leigh
(Va.) 588, 29 Am.Dec. 226.
INFORMATUS NON SUM. In practice. I am not
informed. A formal answer made by the defend-
ant's attorney in court to the effect that he has
not been advised of any defense to be made to the
action. Thereupon judgment by default passes.
INFORMER. A person who informs or prefers
an accusation against another, whom he suspects
of the violation of some penal statute.
Common informer. A common prosecutor. A
person who habitually ferrets out crimes and of-
fenses and lays information thereof before the
ministers of justice, in order to set a prosecution
on foot, not because of his office or any special
duty in the matter, but for the sake of the share
of the fine or penalty which the law allots to the
informer in certain cases. Also used in a less in-
vidious sense, as designating persons who were
authorized and empowered to bring action for
penalties. U. S. v. Stocking, D.C.Mont., 87 F. 861;
In re Barker, 56 Vt. 20.
INFORTIATUM. The name given by the glossa-
tors to the second of the three parts or volumes
into which the Pandects were divided. It com-
mences with the third title of the twenty-fourth
book and ends with the thirty-eighth book. The
glossators at Bologna had at first only two parts,
the first called "Digestum Vetus," (the old Digest,)
and the last called "Digestum Novum," (the New
Digest.) When they afterwards received the mid-
dle or second part, they separated from the Diges-
turn, Novum the beginning it had then, and added
it to the second part, from which enlargement the
latter received the name "Infortiatum." Mackeld.
Rom. Law, § 110.
INFORTUNIUM, HOMICIDE PER. Where a man
doing a lawful act, without intention of hurt, un-
fortunately kills another.
INFRA. (Lat.) Below, under, beneath, under-
neath. The opposite of supra, above. Thus, we
say, primo grade est—supra, pater, mater, infra,
filius, filia: in the first degree of kindred in the
ascending line, above is the father and the mother,
below, in the descending line, son and daughter.
Inst. 3. 6. 1.
In another sense, this word signifies within: as,
infra corpus civitatis, within the body of the coun-
try; infra prcesidia, within the guards. So of
time, during: infra furorem, during the madness.
This use is not classical. The use of infra for
infra seems to have sprung up among the bar-
barians after the fall of the Roman empire.
INFRA AETATEM. Under age; not of age. Ap-
plied to minors.
INFRA ANNOS NUBILES. Under marriageable
years; not yet of marriageable age.
INFRA ANNUM. Under or within a year. Bract.
fol. 7.
INFRA ANNUM LUCTUS. (Within the year of
mourning.) The phrase is used in reference to
the marriage of a widow within a year after her
husband's death, which was prohibited by the civil
law.
INFRA BRACHIA. Within her arms. Used of
a husband de jure, as well as de facto. 2 Inst.
317. Also inter brachia. Bract. fol. 148b. It was
in this sense that a woman could only have an
appeal for murder of her husband inter brachia
sua.
INFRA CIVITATEM. Within the state. 1 Camp.
23, 24.
INFRA CORPUS COMITATUS. Within the body
(territorial limits) of a county. In English law,
waters which are infra corpus comitatus are ex-
empt from the jurisdiction of the admiralty. War-
ing v. Clarke, 5 How. 441, 451, 12 L.Ed. 226.
INFRA DIGNITATEM CURLE. Beneath the dig-
nity of the court; unworthy of the consideration
of the court. Where a bill in equity is brought up-
on a matter too trifling to deserve the attention
of the court, it is demurrable, as being infra dig-
nitatem curice. Smets v. Williams, 4 Paige, Ch.
(N.Y.) 364.
INFRA FUROREM. During madness; while in a
state of insanity. Bract. fol. 19b.
INFRA HOSPITIUM. Within the inn. When a
traveler's baggage comes infra hospitium,  e.,
in the care and under the custody of the innkeeper,
the latter's liability attaches. Davidson v. Mad-
ison Corporation, 247 N.Y.S. 789, 795, 231 App.
Div. 421.
INFRA JURISDICTIONEM. Within the jurisdic-
tion. 2 Strange, 827.
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INFRA
INFRA LIGEANTIAM REGIS. Within the king's
ligeance. Comb. 212.
INFRA METAS. Within the bounds or limits.
Infra metas forestce, within the bounds of the
forest. Fleta, lib. 2, c. 41, § 12. Infra metas hos-
pitii, within the limits of the household; within
the verge. Id. lib. 2, c. 2, § 2.
INFRA PR2ESIDIA. Within the protection;
within the defenses. In international law, when
a prize, or other captured property, is brought into
a port of the captors, or within their lines, or
otherwise under their complete custody, so that
the chance of rescue is lost, it is said to be infra
proesiclia.
INFRA QUATUOR MARIA. Within the four
seas; within the kingdom of England; within the
jurisdiction.
INFRA QUATUOR PARIETES. Within four
walls. 2 Crabb, Real Prop. p. 106, § 1089.
INFRA REGNUM. Within the realm.
INFRA SEX ANNOS. Within six years. Used in
the Latin form of the plea of the statute of lim-
itations.
INFRA TRIDUUM. Within three days. Formal
words in old appeals. Fleta, lib. 1, c. 31, § 6; Id.
c. 35, § 3.
INFRACTION. A breach, violation, or infringe-
ment; as of a law, a contract, a right or duty.
In French law, this term is used as a general
designation of all punishable actions.
INFRINGEMENT. A breaking into; a trespass
or encroachment upon; a violation of a law, reg-
ulation, contract, or right. Used especially of in-
vasions of the rights secured by patents, copy-
rights, and trademarks. Goodyear Shoe Machin-
ery Co. v. Jackson, C.C.A.Mass., 112 F. 146, 50 C.C.
A. 159, 55 L.R.A. 692.
Infringement of patent. The unauthorized mak-
ing, using, or selling for practical use, or for profit,
of an invention covered by a valid claim of a pat-
ent during the life of the patent. It may involve
any one or all of the acts of making, using, and
selling. Johnston v. Davenport Brick & Tile Co.,
D.C.Iowa, 237 F. 668, 671. Celluloid Mfg. Co. v.
American Zylonite Co., C.C.N.Y., 30 F. 437.
To constitute infringement of a patent claim
there must be present in the infringing device
or combination every element of such claim or
its equivalent, so combined as to produce sub-
stantially the same result operating in substan-
tially the same way. Safety Car Heating &
Lighting Co. v. Gould Coupler Co., D.C.N.Y., 230
F. 848, 851; Montgomery Ward and Co. v. Clair,
C.C.A.Mo., 123 F.2d 878, 881.
There is "infringement" where the departure is merely
colorable. E. H. Bardes Range & Foundry Co. v. American
Engineering Co., C.C.A.Ohio, 109 F.2d 696, 698; United
States Rubber Co. v. General Tire & Rubber Co., C.C.A.
Ohio, 128 F.2d 104, 108, 109; Swan Carburetor Co. v. Gen-
eral Motors Corporation, D.C.Ohio, 43 F.Supp. 499, 504.
Contributory infringement. The intentional aid-
ing of one person by another in the unlawful mak-
ing or selling of a patented invention; usually
done by making or selling one part of the patented
invention, or one element of the combination,
with the intent and purpose of so aiding. Thom-
son-Houston Electric Co. v. Specialty Co., C.C.
Conn., 72 F. 1016; Safety Car Heating & Lighting
Co. v. Gould Coupler Co., D.C.N.Y., 229 F. 429, 439.
Infringement of copyright. A copy, more or less
servile, of a copyrighted work. Mere likeness is
insufficient, and an original treatment of a sub-
ject, open alike to treatment by the copyright
holder and others does not constitute infringe-
ment. Pellegrini v. Allegrini, D.C.Pa., 2 F.2d 610,
612. There must be appropriation of substantial
portions of the copyright matter. Roe-Lawton v.
Hal E. Roach Studios, D.C.Cal., 18 F.2d 126, 127;
Eggers v. Sun Sales Corporation, C.C.A.2, 263 F.
373, 375. But intention to infringe is not essential.
Chappell & Co. v. Costa, D.C.N.Y., 45 F.Supp. 554,
555, 556; Towle v. Ross, D.C.Or., 32 F.Supp. 125,
127.
Under 17 US.C.A. § 1, one transmitting unauthorized per-
formance of copyrighted musical composition by radio
from a broadcasting station maintained and operated to
stimulate sale of radio products is an "infringer," and is
liable therefor. Jerome H. Remick & Co. v. General Elec-
tric Co., D.C.N.Y., 16 F.2d 829.
Infringement of trademark. The unauthorized
use or colorable imitation of the mark already ap-
propriated by another, on goods of a similar class.
Block v. Jung Arch Brace Co., C.C.A.Ohio, 300 F.
308, 309. Weiss v. Tucker, 222 N.Y.S. 487, 488, 129
Misc. 648; Northam Warren Corporation v. Uni-
versal Cosmetic Co., C.C.A.Ill., 18 F.2d 774, 775.
It exists if words or designs used by defendant are
identical with or so similar to plaintiff's that they
are likely to cause confusion, or deceive or mis-
lead others. McGraw-Hill Pub. Co. v. American
Aviation Associates, 117 F.2d 293, 294, 73 App.D.C.
131; Seattle Street Railway & Municipal Employ-
ees Relief Ass'n v. Amalgamated Ass'n of Street,
Electric Railway & Motor Coach Employees of
America, 101 P.2d 338, 344, 3 Wash.2d 520; Cal-
ifornia Fruit Growers Exchange v. Windsor Bev-
erages, C.C.A.I11., 118 F.2d 149, 152.
INFRINGER. One who appropriates another's
patented invention. Stebler v. Riverside Heights
Orange Growers' Ass'n, C.C.A.Cal., 205 F. 735, 739.
One who affixes the trademark of another to sim-
ilar articles in such way that his use of it is
liable to cause confusion in the trade, or is cal-
culated to mislead purchasers and induce them to
buy infringer's articles as goods of the other thus
depriving the latter of the full benefit of his prop-
erty. James Heddon's Sons v. Millsite Steel &
Wire Works, C.C.A.Mich., 128 F.2d 6, 8.
INFUGARE. Lat. To put to flight.
INFULA. A coif, or a cassock. Jacob.
INFUSION. In medical jurisprudence. The pro-
cess of steeping in liquor; an operation by which
the medicinal qualities of a substance may be ex-
tracted by a liquor without boiling. Also the
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INHERENTLY
product of this operation. "Infusion" and "decoc-
tion," though not identical, are ejusdem generis
in law. 3 Camp. 74. Decoction. A pharmaceu-
tical operation, which consists in pouring a hot
or cold fluid upon a substance whose medical prop-
erties it is desired to extract. The product of this
operation.
INGE. Meadow, or pasture. Jacob.
INGENIUM. (1) Artifice, trick, fraud; (2) an
engine or device. Spelman. (3) A net or hook.
(4) A machine, Spelman, Gloss., especially for'
warlike purposes; also, for navigation of a ship.
Du Cange,
INGENUITAS. Lat. Freedom; liberty; the
state or condition of one who is free. Also liberty
given to a servant by manumission.
INGENUITAS REGNI. In old English law. The
freemen, yeomanry, or commonalty of the king-
dom. Cowell. Applied sometimes also to the bar-
ons.
INGENUITY. Acuteness of understanding. Tol-
free v. Wetzler, D.C.N.J., 22 F.2d.214.
INGENUUS. In Roman law. A person who, im-
mediately that he was born, was a free person.
He was opposed to libertinus, or libertus, who,
having been born a slave, was afterwards manu-
mitted or made free. It is not the same as the
English law term "generosus," which denoted a
person not merely free, but of good family. There
were no distinctions among ingenui; but among
libertine there were (prior to Justinian's abolition
of the distinctions) three varieties, namely: Those
of the highest rank, called "Cives Romani;" those
of the second rank, called "Latini Juniani;" and
those of the lowest rank, called "Dediticii."
Brown.
INGRATITUDE. In Roman law, ingratitude was
accounted a sufficient cause for revoking a gift
or recalling the liberty of a freedman. Such is
also the law of France, with respect to the first
case. But the English law has left the matter en-
tirely to the moral sense.
INGRESS, EGRESS, AND REGRESS. These
words express the right of a lessee to enter, go
upon, and return from the lands in question.
INGRESSU. In English law. An ancient writ of
entry, by which the plaintiff or complainant
sought an entry into his lands. Abolished in 1833.
INGRESSUS. In old English law. Ingress; en-
try. The relief paid by an heir to the lord was
sometimes so called. Cowell.
INGROSSATOR. An engrosser. Ingrossator
magna rotuli, engrosser of the great roll; after-
wards called "clerk of the pipe." Spelman; Cow-
ell.
INGROSSING. The act of making a fair and per-
fect copy of any document from a rough draft
of it, in order that it may be executed or put to
its final purpose.
INGUINAL. A term referring to the groin. Cav-
alier v. Chevrolet Motor Co. of New York, 178
N.Y.S. 489, 490, 189 App.Div. 412.
INHABIT. Synonymous with dwell, live, sojourn,
stay, rest. MacLeod v. Stelle, 43 Idaho, 64, 249 P.
254, 256.
INHABITANT. One who resides actually and
permanently in a given place, and has his domicile
there. Ex parte Shaw, 12 S.Ct. 935, 145 U.S. 444,
36 L.Ed. 768; The Pizarro, 2 Wheat. 245, 4 L.Ed.
226.
"The words 'inhabitant,' 'citizen,' and 'resident,' as
employed in different constitutions to define the qualifita-
tions of electors, mean substantially the same thing; and
one is an inhabitant, resident, or citizen at the place where
he has his domicile or home." Cooley, Const.Lim. *600;
State ex rel. Sathre v. Moodie, 65 N.D. 340, 258 N.W. 558,
564. But the terms "resident" and "inhabitant" have also
been held not synonymous, the latter implying a more fixed
and permanent abode than the former, and importing privi-
leges and duties to which a mere resident would not be
subject. Tazewell County v. Davenport, 40 Ill. 197; State,
to Use of Knox County Collector, v. Bunce, 187 Mo.App.
607, 173 S.W. 101, 102.
When relating to municipal rights, powers, or duties, the
word inhabitant is almost universally used as signifying
precisely the same as domiciled; Borland v. City of Boston,
132 Mass. 98, 42 Am.Rep. 424.
A corporation can be an inhabitant only in the state of
its incorporation. Sperry Products v. Association of Amer-
ican Railroads, C.C.A.N.Y., 132 F.2d 408, 411; Vogel v.
Crown Cork & Seal Co., D.C.Md., 36 F.Supp. 74, 75; Inter-
national Union of Mine, Mill and Smelter Workers v. Ten-
nessee Copper Co., D.C.Tenn., 31 F.Supp. 1015, 1017;
Deutsch v. Times Pub. Corporation, D.C.N.Y., 33 F.Supp.
957, 958.
INHABITED HOUSE DUTY. A tax assessed in
England on inhabited dwelling houses, according
to their annual value, (St. 14 & 15 Vict. c. 36; 32
& 33 Vict. c. 14, § 11,) which is payable by the oc-
cupier, the landlord being deemed the occupier
where the house is let to several persons. (St. 48
Geo. III. c. 55, Schedule B.) Houses occupied
solely for business purposes are exempt from
duty, although a care-taker may dwell therein, and
houses partially occupied for business purposes
are to that extent exempt. Sweet.
INHERE. To exist in and inseparable from some-
thing else; to stick fast. Majestic Theater Co. v.
Lutz, 210 Ky. 92, 275 S.W. 16, 20.
INHERENT POWER. An authority possessed
without its being derived from another. A right,
ability, or faculty of doing a thing, without re-
ceiving that right, ability, or faculty from another.
See, also, "Power."
INHERENT POWERS OF A COURT. Those rea-
sonably necessary for administration of justice.
State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.
W.2d 181, 183. Ex parte Wetzel, 243 Ala. 130, 8
So.2d 824, 825.
INHERENTLY DANGEROUS. Danger inhering
in instrumentality or condition itself at all times,
so as to require special precautions to prevent in-
jury, not danger arising from mere casual or col-
lateral negligence of others with respect thereto
under particular circumstances. Brown v. City
of Craig, 350 Mo. 836, 168 S.W.2d 1080, 1082; Em-
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INHERETRIX
ery v. Thompson, 347 Mo. 494, 148 S.W.2d 479,
480; Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623,
628; Street v. W. E. Callahan Const. Co., Mo.App.,
147 S.W.2d 153, 155.
INHERETRIX. The old term for "heiress." Co.
Litt. 13a.
INHERIT. To take by inheritance; to take as
heir on death of ancestor; to take by descent
from ancestor; to take or receive, as right or title,
by law from ancestor at his decease. Condren v.
Marlin, 113 Okl. 259, 241 P. 826, 827. In re Buell's
Estate, 167 Or. 295, 117 P.2d 832, 836. "To inherit
to" a person is a common expression in the books.
2 Bl. Comm. 254, 255; 3 Coke, 41.
The word is also used in its popular sense, as
the equivalent of to take or receive. Manchester
v. Loomis, 191 Iowa 554, 181 N.W. 415, 442.
INHERITABLE BLOOD. Blood which has the
purity (freedom from attainder) and legitimacy
necessary to give its possessor the character of a
lawful heir; that which is capable of being the
medium for the transmission of an inheritance.
INHERITANCE. An estate in things real, de-
scending to the heir. 2 Bl. Comm. 201; Rountree
v. Pursell, 39 N.E. 747, 11 Ind.App. 522. Such an
estate in lands or tenements or other things as
may be inherited by the heir. Termes de la Ley.
An estate or property which a man has by descent,
as heir to another, or which he may transmit to
another, as his heir. Litt. § 9.
A perpetuity in lands or tenements to a man and his
heirs. Cowell; Blount. The method by which children or
relatives take property from another at his death. Priddy
v. Green, Tex.Civ.App., 220 S.W. 243, 248; Horner v. Web-
ster, 33 N.J.L. 413.
Though "inheritance" in its restricted sense means some-
thing obtained through laws of descent and distribution
from an intestate, in its popular use it includes property
obtained by devise or descent. Pacheco v. Fernandez. Tex.
Civ.App., 277 S.W. 197, 198; Higby v. Martin, 167 Okl. 10,
28 P.2d 1097, 1102.
"Inheritance" is also used in the old books where "here-
ditament" is now commonly employed. Thus, Coke divides
inheritances into corporeal and incorporeal, into real, per-
sonal, and mixed, and into entire and several.
Civil Law
The succession of 'the heir to all the rights and
property of the estate-leaver. It is either testa-
mentary, where the heir is created by will, or ab
intestato, where it arises merely by operation of
law. Heinec. § 484.
In General
Estate of inheritance. See Estate.
Inheritance act. The English statute of 3 & 4
Wm. IV. c. 106, by which the law of inheritance or
descent was considerably modified. 1 Steph.
Comm. 359, 500.
Inheritance tax. A tax on the transfer or pass-
ing of estates or property by legacy, devise, or in-
testate succession; not a tax on the property it-
self, but on the right to acquire it by descent or
testamentary gift. In re Gihon's Estate, 169 N.Y.
443; First Nat. Bank v. Commissioner of Corpora-
tions and Taxation, 258 Mass. 253, 154 N.E. 844,
845. A tax on the succession to, or transfer of,
property occasioned by death. Waddell v. Dough-
ton, 194 N.C. 537, 140 S.E. 160.
"Estate taxes" are based on the power to transmit or the
transmission from the dead to the living, while "legacy
taxes," or "inheritance taxes," are based on the transmis-
sion or right to - receive the property. Frick v. Lewellyn,
D.C.Pa., 298 F. 803, 810.
INHIBITION. In Ecclesiastical law. A writ is-
suing from a superior ecclesiastical court, forbid-
ding an inferior judge to proceed further in a
cause pending before him. In this sense it is
closely analogous to the writ of prohibition at
common law. Also the command of a bishop or ec-
clesiastical judge that a clergyman shall cease
from taking any duty.
In English law. The name of a writ which for-
bids a judge from further proceeding in a cause
depending before him; it is in the nature of a
prohibition. Termes de la Ley; Fitzh. N. B. 39.
In Scotch law. A species of diligence or process
by which a debtor is prohibited from contracting
any debt which may become a burden on his her-
itable property, in competition with the creditor at
whose instance the inhibition is taken out; and
from granting any deed of alienation, etc., to the
prejudice of the creditor. Brande.
In the Civil law. A prohibition which the law
makes or a judge ordains to an individual. Halli-
fax; Civil Law, p. 126.
INHIBITION AGAINST A WIFE. In Scotch law.
A writ in the sovereign's name, passing the sig-
net, which prohibits all and sundry from having
transactions with a wife or giving her credit.
Bell; Ersk. Inst. 1, 6, 26.
INHOC. In old records. A nook or corner of a
common or fallow field, inclosed and cultivated.
Kennett, Par. Antiq. 297, 298; Cowell.
INHONESTUS. In old English law. Unseemly;
not in due order. Fleta, lib. 1, c. 31, § 8.
INHUMAN TREATMENT. In the law of divorce.
Such barbarous cruelty or severity as endangers
the life or health of the party to whom it is ad-
dressed, or creates a well-founded apprehension
of such danger. Whaley v. Whaley, 68 Iowa 647,
27 N.W. 809; Cole v. Cole, 23 Iowa 433. The
phrase commonly employed in statutes is "cruel
and inhuman treatment," from which it may be in-
ferred that "inhumanity" is an extreme or ag-
gravated "cruelty."
INIQUISSIMA PAX EST ANTEPONENDA JUS-
TISSIMO BELLO. The most unjust peace is to
be preferred to the justest war. Root v. Stuy-
vesant, 18 Wend. (N.Y.) 257, 305.
INIQUITY. In Scotch practice. A technical ex-
pression applied to the decision of an inferior
judge who has decided contrary to law; he is said
to have committed iniquity. Bell.
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INJUNCTION
INIQUUM EST ALIOS PERMITTERE, ALIOS
INHIBERE MERCATURAM. It is inequitable to
permit some to trade and to prohibit others. 3
Inst. 181.
INIQUUM EST ALIQUEM REI SUI ESSE JUDI-
CEM. It is wrong for a man to be a judge in his
own cause. Branch, Princ.; 12 Coke, 113.
INIQUUM EST INGENUIS HOMINIBUS NON
ESSE LIBERAM RERUM SUARUM ALIENA-
TIONEM. It is unjust that freemen should not
have the free disposal of their own property. Co.
Litt. 223a; 4 Kent, Comm, 131; Hob. 87.
INITIAL. That which begins or stands at the be-
ginning. The first letter of a man's name. El-
berson v. Richards, 42 N.J.L. 70.
INITIAL CARRIER. In the law of bailments.
*The carrier who first receives the goods and begins
the process of their transportation, afterwards de-
livering them to another carrier for the further
prosecution or completion of their journey. See
Beard v. Railway Co., 79 Iowa 527, 44 N.W. 803.
But it has also been defined as the one contracting with
the shipper, and not necessarily the one whose line consti-
tutes the first link in transportation. Knapp v. Minneapo-
lis, St. P. & S. S. M. Ry. Co., 33 N.D. 291, 156 N.W. 1019,
1023.
INITIALIA TESTIMONII. In Scotch law. Pre-
liminaries of testimony. The preliminary exam-
ination of a witness, before examining him in
chief, answering to the voir dire of the English
law, though taking a somewhat wider range.
Wharton.
INITIATE. Commenced; inchoate. Curtest' in-
itiate is the interest which a husband has in the
wife's lands after a child is born who may inherit,
but before the wife dies.
To propose for approval—as schedule of rates.
Idaho Power Co. v. Thompson, D.C.Idaho, 19 F.2d
547, 579.
INITIATION FEE. The sum paid on joining an
organization for privileges of membership. Derby
v. U. S., D.C.Mass., 17 F.2d 119, 120.
INITIATIVE. The power of the people to pro-
pose bills and laws, and to enact or reject them
at the polls, independent of legislative assembly.
City of Litchfield v. Hart, 306 Ill.App. 621, 29 N.E.
2d 678, 679.
In French law. The name given to the impor-
tant prerogative conferred by the charte constitu-
tionnelle, article 16, on the king to propose
through his ministers projects of laws. 1 Toul-
lier, no. 39.
INIURCOLLEGUIA. A body of Soviet lawyers
in Moscow organized and constituted pursuant to
statute under jurisdiction and control of the
U. S. S. R. Ministry of Justice for the purpose of
exclusive representation of Soviet nationals in
foreign legal matters. In re Mitzkel's Estate, 233
N.Y.S.2d 519, 524, 36 Misc.2d 671; In re Kapocius'
Estate, 234 N.Y.S.2d 346, 348, 36 Misc.2d 1087.
INJUNCTION. A prohibitive writ issued by a
court of equity, at the suit of a party complainant,
directed to a party defendant in the action,
or to a party made a defendant for that pur-
pose, forbidding the latter to do some act, or to
permit his servants or agents to do some act,
which he is threatening or attempting to commit,
or restraining him in the continuance thereof, such
act being unjust and inequitable, injurious to the
plaintiff, and not such as can be adequately re-
dressed by an action at law. Dupre v. Anderson,
45 La.Ann. 1134, 13 So. 743; City of Alma v. Loehr,
42 Kan. 368, 22 P. 424. A judicial process oper-
ating in personam, and requiring person to whom
it is directed to do or refrain from doing a par-
ticular thing. Gainsburg v. Dodge, 193 Ark. 473,
101 S.W.2d 178, 180.
Final injunction
One granted when the rights of the parties are deter-
mined; distinguished from a preliminary injunction.
Southern Pac. R. Co. v. Oakland, C.C.Cal., 58 F. 54.
Interlocutory injunction
One granted prior to the final hearing and determination
of the matter in issue, and which is to continue until
answer, or until the final hearing, or until the further
order of the court. Gas & Electric Securities Co. v. Man-
hattan & Queens Traction Corporation. C.C.A.N.Y., 266 F.
625, 632
Mandatory injunction
One which (1) commands the defendant to do some posi-
tive act or particular thing; (2) prohibits him from refus-
ing (or persisting in a refusal) to do or permit some act to
which the plaintiff has a legal right; or (3) restrains the
defendant from permitting his previous wrongful act to
continue operative, thus virtually compelling him to undo
it. Bailey v. Schnitzius, 43 N.J.Eq. 178, 16 A. 680.
Permanent injunction
One intended to remain in force until the final termina-
tion of the particular suit. Riggins v. Thompson, 96 Tex.
154, 71 S.W. 14.
Perpetual injunction
An injunction which finally disposes of the suit, and is
indefinite in point of lime. Riggins v. Thompson, 96 Tex.
154, 71 S.W. 14.
Preliminary injunction
An injunction granted at the institution of a suit, to
restrain the defendant from doing or continuing some act,
the right to which is in dispute, and which may either be
discharged or made perpetual, according to the result of
the controversy, as soon as the rights of the parties are
determined. Darlington Oil Co. v. Pee Dee Oil Co., 62 S.C.
196, 40 S.E. 169: Appeal of Mammoth Vein Consol. Coal
Co., 54 Pa. 188.
Preventive injunction
One which prohibits the defendant from doing a particu-
lar act or commands him to refrain from it. Leaksville
Woolen Mills v. Spray Water Power & Land Co., 183 N.C.
511, 112 S.E. 24, 25.
Provisional injunction
Another name for a preliminary or temporary injunction
or an injunction pendente lite.
Special injunction
An injunction obtained only on motion and petition,
usually with notice to the other party. Aldrich v. Kirk-
land, 6 Rich.Law S.C. 340; 4 Steph.Comm. 12, note z.
Temporary injunction
A preliminary or provisional injunction, or one granted
pendente lite; as opposed to a final or perpetual injunction.
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INJURE
Jesse French Piano Co. v, Porter, 134 Ala. 302, 32 So. 678,
92 Am.St.Rep. 31.
INJURE. To violate the legal right of another or
inflict an actionable wrong. Krom v. Antigo Gas
Co., 154 Wis. 528, 143 N.W. 163, 164. To do harm
to; to hurt; damage; impair; to hurt or wound,
as the person; to impair the soundness of, as
health. Ziolkowski v. Continental Casualty Co.,
284 Ill.App. 505, 1 N.E.2d 410, 412. As applied to
a building, "injure" means to materially impair or
destroy any part of the existing structure. F. W.
Woolworth Co. v. Nelson, 204 Ala. 172, 85 So. 449,
451, 13 A.L.R. 820.
INJURES GRAVES. Fr. In French law. Griev-
ous insults or injuries, including personal insults
and reproachful language, constituting a just
cause of divorce. Butler v. Butler, 1 Pars. Eq.
Cas. (Pa.) 344.
INJURIA. Lat. Injury; wrong; the privation
or violation of right. 3 Bl. Comm. 2; J. A. & C.
E. Bennett v. Winston-Salem Southbound R. Co.,
170 N.C. 389, 87 S.E. 133, 134, L.R.A. 1916D, 1074.
INJURIA ABSQUE DAMNO. Injury or wrong
without damage. A wrong done, but from which
nc loss or damage results, and which, therefore,
will not sustain an action.
INJURIA FIT EI CUI CONVICIUM DICTUM
EST, VEL DE EO FACTUM CARMEN FAMOS-
UM. An injury is done to him of whom a re-
proachful thing is said, or concerning whom an
infamous song is made. 9 Coke, 60.
INJURIA ILLATA JUDICI, SEU LOCUM TEN-
ENTI REGIS, VIDETUR IPSI REGI ILLATA
MAXIME SI FIAT IN EXERCENTEM OFFICI-
UM. 3 Inst. 1. An injury offered to a judge, or
person representing the king, is considered as
offered to the king himself, especially if it be done
in the exercise of his office.
INJURIA NON EXCUSAT INJURIAM. One
wrong does not justify another. Broom, Max.
395. See 6 El. & Bl. 47.
INJURIA NON PRIESUMITUR. Injury is not
presumed. Co. Litt. 232. Cruel, oppressive, or
tortious conduct will not be presumed. Best. Ev.
p. 336, § 298.
INJURIA SERVI DOMINUM PERTINGIT. The
master is liable for injury done by his servant.
Lofft, 229.
INJURIA PROPRIA NON CADET IN BENEFI-
CIUM FACIENTIS. One's own wrong shall not
fall to the advantage of him that does it. A man
will not be allowed to derive benefit from his own
wrongful act. Branch, Princ.
INJURIOUS WORDS. In Louisiana. Slander, or
libelous words. Civil Code La. art. 3501.
INJURY. Any wrong or damage done to another,
either in his person, rights, reputation, or proper-
ty. Woodruff v. Mining Co., C.C.Cal., 18 F. 781;
Hitch v. Edgecombe County, 132 N.C. 573, 44 S.E.
30. An act which damages, harms, or hurts.
Ritchie v. Standard Surety & Casualty Co. of
New York, 13 N.Y.S.2d 1022, 1023, 257 App.Div.
545.
The words "damage," "loss," and "injury" are used
interchangeably, and, within legislative meaning and judi-
cial interpretation, import the same thing. In re City of
Pittsburgh, 90 A. 329, 331, 243 Pa. 392, 52 L.R.A.,N.S., 262.
The term "injury," used to describe an error for which a
reversal may be had, means an error which affects the
result. Ryan v. State, 8 Okl.Cr. 623, 129 P. 685, 687.OS
Civil Law
A delict committed in contempt or outrage of
any one, whereby his body, his dignity, or his rep-
utation is maliciously injured. Voet, Com. ad
Pand. 47, t. 10, no. 1.
In General
Absolute injuries. Injuries to those rights
which a person possesses as being a member of
society.
Accidental injury. A bodily injury by accident.
Ideal Fuel Co. v. Industrial Commission, 298 Ill.
463, 131 N.E. 649, 650.
Within the Workmen's Compensation Act, one which
occurs in the course of the employment, unexpectedly, and
without the affirmative act or design of the employe; it
being something which is unforeseen and not expected by
the person to whom it happens. Jakub v. Industrial Com-
mission, 288 Ill. 87, 123 N.E. 263, 264. Any injury to an
employee in the course of his employment due to any
occurrence referable to a definite time, and of the happen-
ing of which he can give notice to his employer, regardless
of whether the injury is a visible hurt from external force,
or disease or infection induced by sudden and castastrophic
exposure. Lerner v. Rump Bros., 209 N.Y.S. 698, 701, 212
App.Div. 747. The term is to receive a broad and liberal
construction with a view to compensating injured employes
where injury resulted through some accidental means, was
unexpected and undesigned and may be the result of mere
mischance or miscalculation as to effect of voluntary action.
Thomas v. Ford Motor Co., 114 Okl. 3, 242 P. 765, 766. It
includes an accident causing injury to the physical struc-
ture of the body, notwithstanding a natural weakness pre-
disposing to injury. Wilkins v. Ben's Home Oil Co., 166
Minn. 41, 207 N.W. 183. The words indicate, not so much
the existence of an accident, but rather the idea that the
injury was unexpected or unintended. Victory Sparkler
& Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 639, 44
A.L.R. 363.
Civil injury. Injuries to person or property,
resulting from a breach of contract, delict, or
criminal offense, which may be redressed by
means of a civil action. Cullinan v. Burkhard, 41
Misc.Rep. 321, 84 N.Y.S. 825.
An infringement or privation of the civil rights which
belong to individuals, considered merely as individuals.
State v. Magee Pub. Co., 29 N.M. 455, 224 P. 1028, 38
A. L. R. 142.
Irreparable injury. This phrase does not mean
such an injury as is beyond the possibility of re-
pair, or beyond possible compensation in damages,
or necessarily great damage, but includes an in-
jury, whether great or small, which ought not to
be submitted to, on the one hand, or inflicted, on
the other; and which, because it is so large or so
small, or is of such constant and frequent occur-
rence, or because no certain pecuniary standard
exists for the measurement of damages, cannot
receive reasonable redress in a court of law.
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INLAND
Sanderlin v. Baxter, 76 Va. 306, 44 Am.Rep. 165.
Wrongs of a repeated and continuing character,
or which occasion damages that are estimated
only by conjecture, and not by any accurate stand-
ard, are included. Johnson v. Kier, 3 Pittsb. R.
(Pa.) 204; Scherman v. Stern, 117 A. 631, 633, 93
N.J.Eq. 626; Birchfield v. Bourland, Tex.Civ.App.,
187 S.W. 422, 423.
Personal injury. A hurt or damage done to a
man's person, such as a cut or bruise, a broken
limb, or the like, as distinguished from an injury
to his property or his reputation. The phrase
is chiefly used in connection with actions of tort
for negligence. Norris v. Grove, 100 Mich. 256,
58 N.W. 1006; State v. Clayborne, 14 Wash. 622,
45 P. 303. But the term is also used (chiefly in
statutes) in a much wider sense, and as including
any injury which is an invasion of personal rights,
and in this signification it may include such in-
juries as libel or slander, criminal conversation
with a wife, seduction of a daughter, and mental
suffering. McDonald v. Brown, 23 R.I. 546, 51 A.
213, 58 L.R.A. 768, 91 Am.St.Rep. 659.
In Workmen's Compensation Acts, "personal injury"
means any harm or damage to the health of an employee,
however caused, whether by accident, disease, or otherwise,
which arises in the course of and out of his employment,
and incapacitates him in whole or in part. Hines v. Nor-
walk Lcck Co., 100 Conn. 533, 124 A. 17, 20; Lane v. Horn
& Hardart Baking Co., 261 Pa. 329, 104 A. 615, 616, 13
A.L.R. 963; Hanson v. Dickinson, 188 Iowa, 728, 176 N.W.
823, 824. A disease of mind or body which arises in the
course of employment with nothing more is not within the
Massachusetts act, but it must come from or by an injury,
although that injury need not be a single definite act, but
may extend over a continuous period of time. In re Mag-
gelet, 228 Mass. 57, 116 N.E. 972, 973, L.R.A.1918F, 864;
Taylor v. Swift & Co., 114 Kan. 431, 219 P. 516, 519. A
"personal injury," as that term is used in the Workmen's
Compensation Act, refers not to some break in some part
of the body, or some wound thereon, or the like, but rather
to the consequence or disability that results therefrom.
Indian Creek Coal & Mining Co. v. Calvert, 68 Ind.App. 474,
119 N.E. 519, 525.
Permanent injury. An injury that, according
to every reasonable probability, will continue
throughout the remainder of one's life. Alabama
Great Southern R. Co. v. Taylor, 196 Ala. 37, 71
So. 676, 678.
Private injuries. Infringements of the private
or civil rights belonging to individuals considered
as individuals.
Public injuries. Breaches and violations of
rights and duties which affect the whole com-
munity as a community.
Real injury. A real injury is inflicted by any
act by which a person's honor or dignity is af-
fected.
Relative injuries. Injuries to those rights which
a person possesses in relation to the person who
is immediately affected by the wrongful act done.
Reparable injury. The general principle is that
an injury, the damage from which is merely in
the nature of pecuniary loss, and can be exactly
and fully repaired by compensation in money, is
a "reparable injury" for which a bond of sufficient
amount and properly secured may afford an ade-
quate indemnity. Barrow v. Duplantis, 148 La.
149, 86 So. 718, 723.
Verbal injury. A verbal injury, when directed
against a private person, consists in the uttering
contumelious words, which tend to injure his rep-
utation by making him little or ridiculous.
INJUSTICE. The withholding or denial of jus-
tice. In law, almost invariably applied to the act,
fault, or omission of a court, as distinguished from
that of an individual. Holton v. Olcott, 58 N.H.
598; In re Moulton, 50 N.H. 532.
"Fraud" is deception practised by the party; "injustice"
is the fault or error of the court. They are not equivalent
words in substance, or in a statute authorizing a new trial
on a showing of fraud or injustice. Fraud is always the
result of contrivance and deception; injustice may be done
by the negligence, mistake, or omission of the court itself.
Silvey v. U. S., 7 Ct.C1. 324.
INJUSTUM EST, NISI TOTA LEGE INSPECTA,
DE UNA ALIQUA EJUS PARTICULA PROPO-
SITA JUDICARE VEL RESPONDERE, 8 Coke,
117b. It is unjust to decide or respond as to any
particular part of a law without examining the
whole of the law.
INLAGARE. In old English law. To restore to
protection of law. To restore a man from the
condition of outlawry. Opposed to utlagare.
Bract. lib. 3, tr. 2, c. 14, § 1; Du Cange.
INLAGATION. Restoration to the protection of
law. Restoration from a condition of outlawry.
INLAGH. A person within the law's protection;
contrary to utlagh, an outlaw. Cowell.
INLAND. Within a country, state or territory;
within the same country.
In old English law, inland was used for the
demesne (q. v.) of a manor; that part which lay
next or most convenient for the lord's mansion-
house, as within the view thereof, and which,
therefore, he kept in his own hands for support
of his family and for hospitality; in distinction
from outland or utland, which was the portion let
out to tenants. Cowell; Kennett; Spelman.
INLAND BILL OF EXCHANGE. A bill of which
both the drawer and drawee reside within the
same state or country. Otherwise called a "dom-
estic bill," and distinguished from a "foreign bill."
Buckner v. Finley, 2 Pet. 589, 7 L.Ed. 528; Lons-
dale v. Brown, 15 Fed.Cas. 857; Strawbridge v.
Robinson, 10 Ill. 472, 50 Am.Dec. 420.
See Bill.
INLAND NAVIGATION. Within the meaning of
the legislation of congress upon the subject, this
phrase means navigation upon the rivers of the
country, but not upon the great lakes. Moore v.
American Transp. Co., 24 How. 38, 16 L.Ed. 674.
INLAND TRADE. Trade wholly carried on at
home; as distinguished from commerce. See
commerce.
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INLAND WATERS. Such waters as canals, lakes,
rivers, water-courses, inlets and bays, exclusive
of the open sea, though the water in question
may open or empty into the ocean. United States
v. Steam Vessels of War, 1 S.Ct. 539, 106 U.S. 607,
27 L.Ed. 286; The Cotton Plant, 10 Wall. 581, 19
L.Ed. 983; Cogswell v. Chubb, 36 N.Y.S. 1076, 1
App.Div. 93.
INLANTAL, INLANTALE. Demesne or inland,
opposed to delantal, or land tenanted. Cowell.
INLAUGHE, Sax. In old English law. Under
the law, (sub lege,) in a frank-pledge, or decen-
nary. Bract. fol. 125b.
INLAW. To place under the protection of the
law. "Swearing obedience to the king in a leet,
which doth inlaw the subject." Bacon.
INLEASED. In old English law. Entangled, or
ensnared. 2 Inst. 247; Cowell; Blount.
INLIGARE. In old European law. To confed-
erate; to join in a league, (in ligam coire.) Spel-
man.
INMATE. A person who lodges or dwells in the
same house with another, occupying different
rooms, but using the same door for passing in and
out of the house. Webster; Jacob.
INMATE OF HOUSE OF PROSTITUTION.
Those words apply only to the woman who goes
there more or less regularly and who plies her
trade there, and do not include a man found there-
in who has gone there for the purpose of illicit
sexual intercourse. People v. Anonymous, 292 N.
Y.S. 282, 285, 161 Misc. 379.
INN. An inn is a house where a traveler is fur-
nished with everything which he has occasion for
while on his way. Waitt Const. Co. y. Chase, 188
N.Y.S. 589, 592, 197 App.Div. 327. A house where
all who conduct themselves properly, and who are
able and ready to pay for their entertainment,
are received, if there is accommodation for them,
and who, without any stipulated engagement as to
the duration of their stay, or as to the rate of
compensation, are, while there, supplied at a rea-
sonable charge with their meals, their lodging, and
such services and attention as are necessarily in-
cident to the use of the house as a temporary
home. Ford v. Waldorf System, 57 RI. 131, 188 A.
633, 635. A place where the public will be re-
ceived and accommodations provided to guests
for compensation. Edwards v. City of Los An-
geles, 48 Cal.App.2d 62, 119 P.2d 370, 373, 374.
Under the term "inn" the law includes all tav-
erns, hotels, and houses of public general enter-
tainment for guests. Code Ga. 1882, § 2114 (Civ.
Code 1910, § 3505).
See, also Hotel.
The words "inn," "tavern," and "hotel" are used synon
ymously to designate what is ordinarily and popularly
known as an "inn" or "tavern," or place for the entertain-
ment of travelers, and where all their wants can be sup-
plied. A restaurant where meals only are furnished is not
an inn or tavern. Carpenter v. Taylor, 1 Hilt., N.Y., 193.
An inn is distinguished from a private boarding-house
mainly in this : that the keeper of the latter is at liberty
to choose his guests, while the innkeeper is obliged to
entertain and furnish all travelers of good conduct and
means of payment with what they may have occasion for,
as such travelers, while on their way. Pinkerton v. Wood-
ward, 33 Cal. 557, 91 Am. Dec. 657. Another distinction is
that in a boarding-house the guest is under an express con-
tract for a certain time at a certain rate, whereas, in an
inn the guest is entertained from day to day upon an
implied contract. Willard v. Reinhardt, 2 E.D.Smith, N.Y.,
148. A lodging house does not become an "inn" because a
register is kept. Roberts v. Case Hotel Co., 175 N.Y.S. 123,
127, 106 Misc. 481.
Common Inn. A house for the entertainment
of travelers and passengers, in which lodging and
necessaries are provided for them and for their
horses and attendants. Cromwell v. Stephens,
2 Daly (N.Y.) 15. The word "common," in this
connection, does not appear to add anything to the
common-law definition of an inn, except in so far
as it lays stress on the fact that the house is for
the entertainment of the general public or for all
suitable persons who apply for accommodations.
INNAMIUM. In old English law. A pledge.
INNAVIGABILITY. In insurance law. The con-
dition of being innavigable, (q. v.) The foreign
writers distinguish "innavigability" from "ship-
wreck." 3 Kent, Comm. 323, and note. The term
is also applied to the condition of streams which
are not large enough or deep enough, or are other-
wise unsuited, for navigation.
INNAVIGABLE. As applied to streams, not cap-
able of or suitable for navigation; impassable by
ships or vessels.
As applied to vessels in the law of marine in-
surance, it means unfit for navigation; so dam-
aged by misadventures at sea as to be no longer
capable of making a voyage. See 3 Kent, Comm.
323, note.
INNER BARRISTER. A serjeant or king's coun-
sel, in England, who is admitted to plead within
the bar.
INNER HOUSE. The name given to the chambers
in which the first and second divisions of the court
of session in Scotland hold their sittings. See
Outer House.
INNINGS. In old records. Lands recovered from
the sea by draining and banking. Cowell.
INNKEEPER. One who keeps an inn or house
for the lodging and entertainment of travelers.
The keeper of a common inn for the lodging and
entertainment of travelers and passengers, their
horses and attendants, for a reasonable compensa-
tion. Story, Bailm. § 475. One who keeps a tavern
or coffeehouse in which lodging is provided. 2
Steph. Comm. 133. See Inn.
One who receives as guests all who choose to visit his
house, without any previous agreement as to the time of
their stay, or the terms. His liability as innkeeper ceases
when his guest pays his bill, and leaves the house with the
declared intention of not returning, notwithstanding the
guest leaves his baggage behind him. Wintermute v. Clark,
5 Sandf., N.Y., 242.
The words "innkeeper" and "hotel keeper" are synon-
ymous, but each is distinct from a "boarding house keep-
er," in that the innkeeper has no right to select his guests,
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but must receive every one applying for accommodation
who conducts himself in a proper manner, etc., while the
keeper of a boarding house is one who maintains a house
for the accommodation of those who enter under contract
for entertainment at a certain rate for a certain period at
an agreed compensation. McClaugherty v. Cline, 128 Tenn.
605, 163 S.W. 801. One who entertains strangers occasion-
ally, although he may receive compensation for it, is not
an innkeeper.
INNOCENCE. The absence of guilt.
INNOCENT. Free from guilt; acting in good
faith and without knowledge of incriminatory
circumstances, or of defects or objections.
INNOCENT AGENT. In criminal law. One who,
being ignorant of any unlawful intent on the part
of his principal, is merely the instrument of the
guilty party in committing an offense; one who
does an unlawful act at the solicitation or request
of another, but who, from defect of understand-
ing or ignorance of the inculpatory facts, incurs
no legal guilt. Smith v. State, 21 Tex.App. 107,
17 S.W. 552; State v. Carr, 28 Or. 389, 42 P. 215.
INNOCENT CONVEYANCES. A technical term
of the English law of conveyancing, used to desig-
nate such conveyances as may be made by a lease-
hold tenant without working a forfeiture. These
are said to be lease and re-lease, bargain and sale,
and, in case of a life-tenant, a covenant to stand
seised. 1 Chit. Pr. 243.
INNOCENT PURCHASER. One who, by an hon-
est contract or agreement, purchases property or
acquires an interest therein, without knowledge,
or means of knowledge sufficient to charge him in
law with knowledge, of any infirmity in the title
of the seller. Republic Power and Service Co. v.
Continental Credit Corporation, 178 Ark. 966, 12
S.W.2d 906, 908.
INNOCENT TRESPASS. A trespass to land,
committed, not recklessly, but through inadver-
tence or mistake, or in good faith, under an honest
belief that the trespasser was acting within his
legal rights. Elk Garden Big Vein Mining Co. v.
Gerstell, 100 W.Va. 472, 131 S.E. 152, 153.
INNOCENT TRESPASSER. One who enters an-
other's land unlawfully, but inadvertently or un-
intentionally, or in the honest, reasonable belief of
his own right so to do, and removes sand or other
material therefrom, is an "innocent trespasser."
American Sand & Gravel Co. v. Spencer, 55 Ind.
App. 523, 103 N.E. 426, 427.
INNOCENT WOMAN. One who has never had
illicit intercourse with a man. State v. Cline, 170
N.C. 751, 87 S.E. 106, 107.
INNOMINATE. In the civil law. Not named or
classed; belonging to no specific class; ranking
under a general head. A term applied to those
contracts for which no certain or precise remedy
was appointed, but a general action on the case
only. Dig. 2, 1, 4, 7, 2; Id. 19, 4, 5.
INNOMINATE CONTRACTS, literally, are the
"unclassified" contracts of Roman law. They are
contracts which are neither re, verbis, literis, nor
consensu simply, but some mixture of or variation
upon two or more of such contracts. They are
principally the contracts of permutatio, de cestima-
to, precarium, and transactio. Brown.
INNONIA. In old English law. A close or in-
closure, (clausum, inclausura.) Spelman.
INNOTESCIMUS. Lat. We make known. A
term formerly applied to letters patent, derived
from the emphatic word at the conclusion of the
Latin forms. It was a species of exemplification
of charters of feoffment or other instruments not
of record. 5 Coke, 54a.
INNOVATION. In Scotch law. The exchange of
one obligation for another, so as to make the sec-
ond obligation come in the place of the first, and
be the only subsisting obligation against the debt-
or. Bell. The same with "novation," (q. v.)
INNOXIARE. In old English law. To purge one
of a fault and make him innocent.
INNS OF CHANCERY. So called because an-
ciently inhabited by such clerks as chiefly studied
the framing of writs, which regularly belonged to
the cursitors, who were officers of the court of
chancery. There are nine of them,—Clement's,
Clifford's, and Lyon's Inn; Furnival's, Thavies',
and Symond's Inn; New Inn; and Barnard's and
Staples' Inn. These were formerly preparatory
colleges for students, and many entered them be-
fore they were admitted into the inns of court.
They consist chiefly of solicitors, and possess cor-
porate property, hall, chambers, etc., but perform
no public functions like the inns of court. Whar-
ton.
INNS OF COURT. These are certain private un-
incorporated associations, in the nature of col-
legiate houses, located in London, and invested
with the exclusive privilege of calling men to the
bar; that is, conferring the rank or degree of a
barrister. They were founded probably about the
beginning of the fourteenth century. The princi-
pal inns of court are the Inner Temple, Middle
Temple, Lincoln's Inn, and Gray's Inn. (The two
former originally belonged to the Knights Temp-
lar; the two latter to the earls of Lincoln and Gray
respectively.) These bodies now have a "common
council of legal education," for giving lectures and
holding examinations. The inns of chancery, dis-
tinguishable from the foregoing, but generally
classed with them under the general name, are the
buildings known as "Clifford's Inn," "Clement's
Inn," "New Inn," "Staples' Inn," and "Barnard's
Inn." They were formerly a sort of collegiate
houses in which law students learned the elements
of law before being admitted into the inns of
court, but they have long ceased to occupy that
position.
INNUENDO. This Latin word (commonly trans-
lated "meaning") was the technical beginning of
that clause in a declaration or indictment for
slander or libel in which the meaning of the al-
leged libelous words was explained, or the applica-
tion of the language charged to the plaintiff was
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pointed out. Hence It gave its name to the whole
clause; and this usage is still retained, although
an equivalent English word is now substituted.
Thus, it may be charged that the defendant said
"he (meaning the said plaintiff) is a perjurer."
An "innuendo" in pleading in libel action is a
statement by plaintiff of construction which he
puts upon words which are alleged to be libelous
and which meaning he will induce jury to adopt
at trial. Burr v. Winnett Times Pub. Co., 80 Mont.
70, 258 P. 242, 244.
The word is also used, (though more rarely,)
in other species of pleadings, to introduce an ex-
planation of a preceding word, charge, or aver-
ment. Guide Pub. Co. v. Futrell, 175 Va. 77, 7
S.E.2d 133, 138.
It is said to mean no more than the words "id est,""scilicet," or "meaning," or "aforesaid," as explanatory
of a subject-matter sufficiently expressed before; as "such
a one, meaning the defendant," or "such a subject, mean-ing the subject in question." Cowp. 683. It is only explan-
atory of some matter already expressed. It serves to point
out where there is precedent matter, but never for a new
charge. It may apply what is already expressed, but can-
not add to or enlarge or change the sense of the previous
words. See Grand v. Dreyfus, 122 Cal. 58, 54 P. 389; Kee
v. Armstrong, Byrd & Co., 75 Okl. 84, 182 P. 494, 498, 5
A.L.R. 1349. The office of an "innuendo" is to explain the
words published, and to give to them their true meaning,
and it cannot introduce new matter, add to or enlarge the
sense of those words, or impute to them a meaning not
warranted by the publication, when taken alone, or read in
connection with the inducement and colloquium. Bowie v.
Evening News, 148 Md. 569, 129 A. 797, 800; Drebin v.
Jewish World Pub. Co., 262 Pa. 169, 105 A. 58, 59. Its office
is to set a meaning upon words or language of doubtful or
ambiguous import which alone would not be actionable.
Rail v. National Newspaper Ass'n, 198 Mo.App. 463, 192
S.W. 129, 134.
INOFFICIOSUM. In the civil law. Inofficious;
contrary to natural duty or affection. Used of a
will of a parent which disinherited a child without
just cause, or that of a child which disinherited
a parent, and which could be contested by querela
inofficiosi testamenti. Dig. 2, 5, 3, 13; Paulus, lib.
4, tit. 5, § 1.
INOFFICIOUS TESTAMENT. A will not in ac-
cordance with the testator's natural affection and
moral duties. In re Willford's Will (N.J.) 51 A.
502. But particularly, in the civil law, a will which
deprives the heirs of that portion of the estate to
which the law entitles them, and of which they
cannot legally be disinherited. Mackeld. Rom.
Law, § 714; Civ. Code La. art. 3556, subd. 16. A
testament contrary to the natural duty of the
parent, because it totally disinherited the child,
without expressly giving the reason therefor.
INOFICIOCIDAD. In Spanish law. Every thing
done contrary to a duty or obligation assumed,
as well as in opposition to the piety and affection
dictated by nature: inofficiosum dicitur id omne
quod contra pietatis officium factum est. The
term applies especially to testaments, donations,
dower, etc., which may be either revoked or re-
duced when they affect injuriously the rights of
creditors or heirs.
INOPS CONSILII. Lat. Destitute of counsel;
without legal counsel. A term applied to the acts
or condition of one acting without legal advice, as
a testator drafting his own will.
INORDINATUS. An intestate.
INPENY and GUTPENY. In old English law. A
customary payment of a penny on entering into
and going out of a tenancy, (pro exitu de tenura,
et pro ingressu.) Spelman.
INQUEST. A body of men appointed by law to
inquire into certain matters. The grand jury
is sometimes called the "grand inquest." The
judicial inquiry made by a jury summoned for the
purpose is called an "inquest." The finding of
such men, upon an investigation, is also called an
"inquest." People v. Coombs, 55 N.Y.S. 276, 36
App.Div. 284; Davis v. Bibb County, 116 Ga. 23, 42
S.E. 403.
The inquiry by a coroner, termed a "coroner's
inquest," into the manner of the death of any one
who has been slain, or has died suddenly or in
prison.
This name is also given to a species of pro-
ceeding under the New York practice, allowable
where the defendant in a civil action has not filed
an affidavit of merits nor verified his answer. In
such case the issue may be taken up, out of its
regular order, on plaintiff's motion, and tried with-
out the admission of any affirmative defense.
An inquest is a trial of an issue of fact where the plain-
tiff alone introduces testimony. The defendant is entitled
to appear at the taking of the inquest, and to cross-examine
the plaintiff's witnesses; and, if he do appear, the inquest
must be taken before a jury, unless a jury be expressly
waived by him. Haines v. Davis, 6 How.Prac., N.Y., 118.
The term "inquest," as applied to Surrogates' Courts, is
a term of larger signification than as applied to proceedings
at common law, and includes the exercise of the surrogate's
function to determine all the circumstances concerning the
genuineness of a will offered for probate, and the validity
of its execution, without reference to whether there is a
contest or not; his judicial power arising only after he has
determined that the will is genuine and validly executed.
In re Hermann's Will, 145 N.Y.S. 291, 297, 83 Misc. 283.
General
Coroner's inquest. See Coroner.
Inquest, arrest of. See Arrest.
Inquest of lunacy. See Inquisition (or Inquest)
of Lunacy.
Inquest of office. In English practice. An in-
quiry made by the king's (or the queen's) officer,
his sheriff, coroner, or escheator, virtute  or
by writ sent to them for that purpose, or by com-
missioners specially appointed, concerning any
matter that entitles the king to the possession of
lands or tenements, goods or chattels; as to in-
quire whether the king's tenant for life died
seised, whereby the reversion accrues to the king;
whether A., who held immediately of the crown,
died without heir, in which case the lands belong
to the king by escheat; whether B. be attainted
of treason, whereby his estate is forfeited to the
crown; whether C., who has purchased land, be
an alien, which is another cause of forfeiture, etc.
3 Bl. Comm. 258. These inquests of office were
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more frequent in practice during the continuance
of the military tenures than at present; and were
devised by law as an authentic means to give the
king his right by solemn matter of record. Id.
258, 259; 4 Steph. Comm. 40, 41. Sometimes sim-
ply termed "office," as in the phrase "office found,"
(q. v.). Atlantic & P. R. Co. v. Mingus, 17 S.Ct.
348, 165 U.S. 413, 41 L.Ed. 770; Baker v. Shy, 9
Heisk. (Tenn.) 89.
Inquest of sheriffs. An inquest which directs a
general inquiry as to the methods in which the
sheriffs had been conducting the local government
of the country (1170). 1 Holdsw. H. E. L. 21.
INQUILINUS. In Roman law. A tenant; one
who hires and occupies another's house; but par-
ticularly, a tenant of a hired house in a city, as
distinguished from colonus, the hirer of a house
or estate in the country. Calvin.
INQUIRENDO. An authority given to some of-
ficial person to institute an inquiry concerning
the crown's interests.
INQUIRY, WRIT OF. A writ sued out by a plain-
tiff in a case where the defendant has let the pro-
ceedings go by default, and an interlocutory judg-
ment has been given for damages generally, where
the damages do not admit of calculation. It issues
to the sheriff of the county in which the venue
is laid, and commands him to inquire, by a jury
of twelve men, concerning the amount of dam-
ages. The sheriff thereupon tries the cause in his
sheriff's court, and some amount must always be
returned to the court. But the return of the in-
quest merely informs the court, which may, if it
choose, in all cases assess damages and thereupon
give final judgment. 2 Archb. Pr., Waterman ed.
952; 3 Bla. Corn. 398; 3 Chitty, Stat. 495, 497.
INQUISITIO. In old English law. An inquisition
or inquest. Inquisitio post mortem, an inquisition
after death. An inquest of office held, during the
continuance of the military tenures, upon the
death of every one of the king's tenants, to in-
quire of what lands he died seised, who was his
heir, and of what age, in order to entitle the king
to his marriage, wardship, relief, primer seisin, or
other advantages, as the circumstances of the case
might turn out. 3 Bl. Comm. 258. Inquisitio pat-
rice, the inquisition of the country; the ordinary
jury, as distinguished from the grand assise.
Bract. fol. 15b.
INQUISITION. In practice. An inquiry or in-
quest; particularly, an investigation of certain
facts made by a sheriff, together with a jury im-
paneled by him for the purpose. The instrument
of writing on which their decision is made is also
called an inquisition.
In its broadest sense, "inquisition," includes any
judicial inquiry. Phillips v. Vessells, 2 W.W.Harr.
(Del.) 490, 126 A. 51.
INQUISITION AFTER DEATH. See Inquisitio.
INQUISITION (or INQUEST) OF LUNACY. A
quasi-judicial examination into the sanity or in-
sanity of a given person, ordered by a court hav-
ing jurisdiction, on a proper application and suf-
ficient preliminary showing of facts, held by the
sheriff (or marshal, or a magistrate, or the court
itself, according to the local practice) with the as-
sistance of a special jury, usually of six men, who
are to hear evidence and render a verdict in ac-
cordance with the facts. This is the usual founda-
tion for an order appointing a guardian or con-
servator for a person adjudged to be insane, or
for committing him to an insane asylum. See
Hughes v. Jones, 116 N.Y. 67, 22 N.E. 446, 5 L.R.A.
637, 15 Am.St.Rep. 386; Hadaway v. Smith, 71 Md.
319, 18 A. 589.
INQUISITOR. A designation of sheriffs, coroners
super visum corporis, and the like, who have pow-
er to inquire into certain matters.
In Ecclesiastical law. The name of an officer
who is authorized to inquire into heresies, and
the like, and to punish them. A judge.
INROLL. A form of "enroll," used in the old
books. 3 Rep. Ch. 63, 73; 3 East, 410.
INROLLMENT. See Enrollment.
INSANE. Unsound in mind; of unsound mind;
deranged, disordered, or diseased in mind. Vio-
lently deranged; mad.
INSANITY. Unsoundness of mind; madness;
mental alienation or derangement; a morbid psy-
chic condition resulting from iisorder of the brain,
whether arising from malformation or defective
organization or morbid processes affecting the
brain primarily or diseased states of the general
system implicating it secondarily, which involves
the intellect, the emotions, the will, and the moral
sense, or some of these faculties, and which is
characterized especially by their non-development,
derangement, or perversion, and is manifested, in
most forms, by delusions, incapacity to reason or
to j udge, or by uncontrollable impulses. In law,
such a want of reason, memory, and intelligence
as prevents a man from comprehending the nature
and consequences of his acts or from distinguish-
ing between right and wrong conduct. Crosswell
v. People, 13 Mich. 427, 87 Am.Dec. 774; Johnson
v. Insurance Co., 83 Me. 182, 22 A. 107; Frazer v.
Frazer, 2 Del.Ch. 263.
"Insanity" does not include certain states of
transitory mental disorder, such as trances, epi-
lepsy, hysteria, and delirium. Martin v. Fraternal
Reserve Life Ass'n, 200 Ill. App. 359, 364, and from
both the pathologic and the legal definitions are
to be excluded temporary mental aberrations
caused by or accompanying alcoholic or other in-
toxication and the delirium of fever.
The distinction between the medical and the legal idea
of insanity has, perhaps, not been better stated than by
Ray, who is quoted by Ordronaux, and again by Witthaus
& Becker "Insanity in medicine has to do with a pro-
longed departure of the individual from his natural mental
state arising from bodily disease." "Insanity in law covers
nothing more than the relation of the person and the par-
ticular act which is the subject of judicial investigation.
The legal problem must resolve itself into the inquiry,
whether there was mental capacity and moral freedom to
Black's Law Dictionary Revised 4th Ed.-59
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INSANITY
do or abstain from doing the particular act." 1 Whitth. &
Beck.Med.Jur. 181; U. S. v. Faulkner, D.C.Tex., 35 F. 730.
Other definitions
Insanity is a manifestation of disease of the brain, char-
acterized by a general or partial derangement of one or
more faculties of the mind, and in which, while conscious-
ness is not abolished, mental freedom is perverted, weak-
ened, or destroyed. Hammond, Nervous System, 332. The
prolonged departure, without any adequate cause, from the
states of feeling and modes of thinking usual to the individ-
ual in health. Bouvier. By insanity is not meant (in law)
a total deprivation of reason, but only an inability, from
defect of perception, memory, and judgment, to do the act
in question, [with an intelligent apprehension of its nature
and consequences.] So, by a lucid interval is not meant a
perfect restoration to reason, but a restoration so far as to
be able, beyond doubt, to comprehend and to do the act
with such reason, memory, and judgment as to make it a
legal act. Frazer v. Frazer, 2 Del. Ch. 263.
Eccentricities and idiosyncracies, however gross, do not
constitute "Insanity." In re Hansen's Will, 50 Utah, 207,
167 P. 256, 261. And drunkenness is not insanity, nor does
it answer to what is termed an unsound mind, unless the
derangement which it causes becomes fixed and continued
by the drunkenness 'being habitual, or by chronic alco-
holism, and thereby rendering the party incapable of dis-
tinguishing between right and wrong, the same as insanity
produced by any other cause. Rucker v. State, 119 Ohio St.
189, 162 N.E. 802, 805.
Synonyms
Delusion is sometimes loosely used as synony-
mous with insanity. But this is incorrect. De-
lusion is not the substance but the evidence of in-
sanity. Ryan v. People, 60 Colo. 425, 153 P. 756,
757, L.R.A. 1917F, 646, Ann.Cas.1917C, 605.
The presence of an insane delusion is a recognized test of
insanity in all cases except amentia and imbecility, and
where there is no frenzy or raving madness; and in this
sense an insane delusion is a fixed belief in the mind of the
patient of the existence of a fact which has no objective
existence but is purely the figment of his imagination, and
which is so extravagant that no sane person would believe
it under the circumstances of the case, the belief, neverthe-
less, being so unchangeable that the patient is incapable of
being permanently disabused by argument or proof. Walk-
er v. Struthers, 273 Ill. 387, 112 N.E. 961, 966. The charac-
teristic which distinguishes an "insane" delusion from oth-
er mistaken beliefs is that it is not a product of the reason
but of the imagination, that is, not a mistake of fact in-
duced by deception, fraud, insufficient evidence, or errone-
ous reasoning, but the spontaneous conception of a pervert-
ed imagination, having no basis whatever in reason or evi-
dence. Riggs v. Missionary Soc., 35 Hun, N.Y., 658; Bu-
chanan v. Pierie, 205 Pa. 123, 54 Atl. 583, 97 Am.St.Rep.
725. An "insane delusion" is an idea or belief which springs
spontaneously from a diseased or perverted mind without
reason or without foundation in fact. It is distinguishable
from a belief which is founded upon prejudice or aversion,
no matter how unreasonable or unfounded the prejudice or
aversion may be, and if it is the product of a reasoning
mind, no matter how slight the evidence on which it is
based, it cannot be classed as an insane delusion. Coffey
v. Miller, 160 Ky. 415, 169 S.W. 852, 854, Ann.Cas.1916C, 30.
As to the distinctions between "Delusion" and
"Illusion" and "Hallucination," see those titles.
Derangement. This term includes all forms of
mental unsoundness, except of the natural born
idiot. Hiett v. Shull, 36 W.Va. 563, 15 S.E. 147.
Idiocy is congenital amentia, that is, a want of
reason and intelligence existing from birth and
due to structural defect or malformation of the
brain. It is a congenital obliteration of the chief
mental powers, and is defined in law as that con-
dition in which the patient has never had, from
his birth, even the least glimmering of reason;
for a man is not legally an "idiot" if he can tell
his parents, his age, or other like common matters.
This is not the condition of a deranged mind, but
that of a total absence of mind, so that, while
idiocy is generally classed under the general des-
ignation of "insanity," it is rather to be regarded
as a natural defect than as a disease or as the
result of a disease. It differs from "lunacy," be-
cause there are no lucid intervals or periods of
ordinary intelligence. In re Beaumont, 1 Whart.
(Pa.) 53, 29 Am.Dec. 33; Clark v. Robinson, 88 Ill.
502.
Imbecility. A more or less advanced decay and
feebleness of the intellectual faculties; that weak-
ness of mind which, without depriving the person
entirely of the use of his reason, leaves only the
faculty of conceiving the most common and or-
dinary ideas and such as relate almost always to
physical wants and habits. It varies in shades
and degrees from merely excessive folly and ec-
centricity to an almost total vacuity of mind or
amentia, and the test of legal capacity, in this
condition, is the stage to which the weakness of
mind has advanced, as measured by the degree of
reason, judgment, and memory remaining. It
may proceed from paresis or general paralysis,
from senile decay, or from the advanced stages of
any of the ordinary forms of insanity; and the
term is rather descriptive of the consequences of
insanity than of any particular type of the dis-
ease. Campbell v. Campbell, 130 Ill. 466, 22 N.E.
620, 6 L.R.A. 167.
Mere imbecility or weakness of mind, however great, is
not "insanity." There must be a total want of understand-
ing. Johnson v. Millard, 110 Neb. 830, 195 N.W. 485, 487.
Lunacy. At the common law, was a term used
to describe the state of one who, by sickness, grief,
or other accident, has wholly lost his memory and
understanding. Co. Litt. 246b, 247a; Corn. v. Has-
kell, 2 Brewst. (Pa.) 496. It is distinguished from
idiocy, an idiot being one who from his birth has
had no memory or understanding, while lunacy
implies the possession and subsequent loss of
mental powers. Bicknell v. Spear, 77 N.Y.S. 920,
38 Misc. Rep. 389. On the other hand, lunacy is a
total deprivation or suspension of the ordinary
powers of the mind, and is to be distinguished
from imbecility, where there is a more or less ad-
vanced decay and feebleness of the intellectual
faculties. In re Vanauken, 10 N.J.Eq. 186, 195;
Odell v. Buck, 21 Wend. (N.Y.) 142. As to all
other forms of insanity, lunacy was originally
distinguished by the occurrence of lucid intervals,
and hence might be described as a periodical or
recurrent insanity. In re Anderson, 132 N.C. 243,
43 S.E. 649. But while these distinctions are still
observed in some jurisdictions, they are more gen-
erally disregarded; so that, at present, in inquisi-
tions of lunacy and other such proceedings, the
term "lunacy" has almost everywhere come to be
synonymous with "insanity," Smith v. Hicken-
bottom, 57 Iowa, 733, 11 N.W. 664, 667, and is used
as a general description of all forms of derange..
ment or mental unsoundness, this rule being es-
tablished by statute in many states and by judicial
decisions in others, In re Clark, 175 N.Y. 139, 67 N.
E. 212.
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Cases of arrested mental development would come within
the definition of lunacy, that is, where the patient was born
with a normal brain, but the cessation of mental growth
occurred in infancy or so near it that he never acquired any
greater intelligence or discretion than belongs to a nor-
mally healthy child. Such a subject might be scientifically
denominated an "idiot," but not legally, for in law the lat-
ter term is applicable only to congenital amentia. The
term "lucid interval" means not an apparent tranquility or
seeming repose, or cessation of the violent symptoms of the
disorder, or a simple diminution or remission of the dis-
ease, but a temporary cure—an intermission so clearly
marked that it perfectly resembles a return of health; and
it must be such a restoration of the faculties as enables the
patient beyond doubt to comprehend the nature of his acts
and transact his affairs as usual; and it must be continued
for a length of time sufficient to give certainty to the tem-
porary restoration of reason. Godden v. Burke, 35 La.Ann.
160, 173; Frazer v. Frazer, 2 Del. Ch. 260.
Non compos mentis. Lat. Not of sound mind.
A generic term applicable to all insane persons,
of whatsoever specific type the insanity may be
and from whatever cause arising, provided there
be an entire loss of reason, as distinguished from
mere weakness of mind. Somers v. Pumphrey,
24 Ind. 244. Potts v. House, 6 Ga. 350, 50 Am.
Dec. 329.
Forms and Varieties of Insanity
Without attempting a scientific classification of
the numerous types and forms of insanity, (as
to which it may be said that there is as yet no final
agreement among psychologists and alienists ei-
ther as to analysis or nomenclature,) definitions
and explanations will here be appended of the com-
pound and descriptive terms most commonly met
with in medical jurisprudence. And, first, as to
the origins or causes of the disease:
Choreic insanity is insanity arising from chorea,
the latter being a nervous disease, more common-
ly attacking children than adults, characterized by
irregular and involuntary twitchings of the mus-
cles of the limbs and face, popularly called "St.
Vitus' dance."
Congenital insanity is that which exists from the
birth of the patient, and is (in law) properly called
"idiocy." See supra.
Cretinism is a form of imperfect or arrested
mental development, which may amount to idiocy,
with physical degeneracy or deformity or lack of
development; endemic in Switzerland and some
other parts of Europe, but the term is applied to
similar states occurring elsewhere.
Delirium tremens. A disease of the nervous
system, induced by the excessive and protracted
use of intoxicating liquors. ;Etna Life Ins. Co. v.
Deming, 123 Ind. 384, 24 N.E. 86, 87, usually oc-
curring in habitual drinkers after a few days' total
abstinence from liquors, but sometimes resulting
directly and immediately from drunkenness, Erwin
v. State, 10 Tex.App. 700, 702; Knickerbocker Life
Ins. Co. v. Foley, 105 U.S. 350, 354, 26 L.Ed. 1055;
Evers v. State, 31 Tex.Cr.R. 318, 20 S.W. 744, 748,
18 L.R.A. 421, 37 Am.St.Rep. 811; and affecting the
brain so as to produce incoherence and lack of con-
tinuity in the intellectual processes, a suspension
or perversion of the power of volition, and delu-
sions, particularly of a terrifying nature, but not
generally prompting to violence except in the ef-
fort to escape trom imaginary dangers. It is
recognized in law as a form of insanity, and may
be of such a nature or intensity as to render the
patient legally incapable of committing a crime.
United States v. McGlue, 1 Curt. 1, 26 Fed.Cas.
1093; Insurance Co. v. Deming, 123 Ind. 384, 24
N.E. 86; Maconnehey v. State, 5 Ohio St. 77; Er-
win v. State, 10 Tex.App. 700.
In some states the insanity of alcoholic intoxication is
classed as "temporary," where induced by the voluntary
recent use of ardent spirits and carried to such a degree
that the person becomes incapable of judging the conse-
quences or the moral aspect of his acts, and "settled,"
where the condition is that of delirium tremens. Settled
insanity, in this sense, excuses from civil or criminal
responsibility; temporary insanity does not. The ground
of the distinction is that the former is a remote effect of
imbibing alcoholic liquors and is not voluntarily incurred,
while the latter is a direct result voluntarily sought for.
Evers v. State, 31 Tex.Cr.R. 318, 20 S.W. 744, 18 L.R.A. 421,
37 Am.St.Rep. 811; State v. Kidwell, 62 W.Va. 466, 59 S.E.
494, 495, 13 L.R.A.,N.S., 1024.
Folie brightique. A French term sometimes
used to designate an access of insanity resulting
from nephritis or "Bright's disease." In re Mc-
Kean's Will, 66 N.Y.S. 44, 31 Misc. 703.
Idiopathic insanity is such as results from a dis-
ease of the brain itself, lesions of the cortex, cere-
bral anemia, etc.
Paranoia. A form of mental distress known as
delusionary insanity, and a person afflicted with it
has delusions which dominate, but do not destroy,
the mental capacity, and, though sane as to other
subjects, as to the delusion and its direct conse-
quences the person is insane. Mounger v. Gandy,
110 Miss. 133, 69 So. 817, 818.
It is sometimes characterized as logical perversion, and
is said to have "misplaced the antiquated term monomania,
which not only implied that the delusion was restricted to
one subject, but was otherwise insufficient and misleading."
The memory, emotions, judgment, and conceptions are in
most cases unimpaired, though each of these mental divi-
sions may be involved. 2 Clevenger, Med.Jur. 860. It is
characterized by systematized delusions, the term taking
the place of "monomania" or "partial insanity". Taylor v.
McClintock, 87 Ark. 243, 112 S.W. 405.
Pellagrous insanity. Insanity caused by or de-
rived from pellagra, which is an endemic disease of
southern Europe, (though not confined to that re-
gion,) characterized by erythema, digestive de-
rangement, and nervous affections. (Cent. Dict.)
Polyneuritic insanity. Insanity arising from an
inflammation of the nerves, of the kind called
"polyneuritis" or "multiple neuritis" because it
involves several nerves at the same time. This is
often preceded by tuberculosis and almost always
by alcoholism, and is characterized specially by de-
lusions and falsification of the memory. It is oth-
erwise called "Korssakoff's disease." (Kraepelin.)
Puerperal insanity. A mental derangement oc-
curring in women at the time of child-birth or im-
mediately after; it is also called "eclampsia par-
turientium."
Syphilitic insanity. A paresis or progressive im-
becility resulting from the infection of syphilis.
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It is sometimes called (as being a sequence or re-
sult of that disease) "metasyphilis" or "parasyph-
ilis."
Tabetic dementia. A form of mental derange.
ment or insanity complicated with "tabes dorsalis"
or locomotor ataxia, which generally precedes, or
sometimes follows, the mental attack. As to in-
sanity resulting from cerebral embolism, see Em-
bolism; from epilepsy, see Epilepsy. As to chron-
ic alcoholism as a form of insanity, see Alcohol-
ism.
Traumatic insanity is such as results from a
wound or injury, particularly to the head or brain,
such as fracture of the skull or concussion of the
brain.
General Descriptive and Clinical Terms
Affective insanity. A modern comprehensive
term descriptive of all those forms of insanity
which affect or relate to the feelings and emo-
tions and hence to the ethical and social relations
of the individual.
Circular insanity. Another name for maniacal-
depressive insanity, which see.
"Emotional insanity" or mania transitoria ap-
plies to the case of one in the possession of his
ordinary reasoning faculties who allows his pas-
sions to convert him into a temporary maniac.
Mutual L. Ins. Co. v. Terry, 15 Wall. 580, 583, 21
L.Ed. 236.
In a criminal case the law rejects the doctrine of what is
called emotional insanity, which begins on the eve of the
criminal act, and leaves off when it is committed. People
v. Kernaghan, 72 Cal. 609, 14 P. 566, 568; Graves v. State,
45 N.J.L. (16 Vroom) 347, 350, 46 Am.Rep. 778.
Folie circulaire. The French name for circular
insanity or maniacal-depressive insanity.
General paralysis. Dementia paralytica or pa-
resis.
Habitual insanity. Such insanity as is, in its
nature, continuous and chronic. Wright v. Mar-
ket Bank, Tenn.Ch.App., 60 S.W. 623, 624.
Involutional insanity. That which sometimes ac-
companies the "involution" of the physical struc-
ture and physiology of the individual, the reverse
of their "evolution," hence practically equivalent
to the imbecility of old age or senile dementia.
Katatonia. A form of insanity distinguished by
periods of acute mania and melancholia and es-
pecially by cataleptic states or conditions; the
"insanity of rigidity." (Kahlbaum.) A type of
insanity characterized particularly by "stereotyp-
ism," an instinctive inclination to purposeless
repetition of the same expressions of the will, and
"negativism," a senseless resistance against every
outward influence. (Kraepelin.)
Legal insanity. Legal insanity is a disorder of
the intellect, and is distinguished from "moral in-
sanity," which is a disorder of the feelings and
propensities. In re Forman's Will, 54 Barb. 274,
291; Bensberg v. Washington University, 251 Mo.
641, 158 S.W. 330, 336. A disease of the brain, ren-
dering a person incapable of distinguishing be-
tween right and wrong with respect to the offense
charged. State v. Privitt, 175 Mo. 207, 75 S.W. 457,
459.
Maniacal-depressive insanity. A form of insani-
ty characterized by alternating periods of high
maniacal excitement and of depressed and stu-
porous conditions in the nature of or resembling
melancholia, often occurring as a series or cycle of
isolated attacks, with more or less complete re-
storation to health in the intervals. (Kraepelin.)
This is otherwise called "circular insanity" or "cir-
cular stupor."
Moral insanity. A morbid perversion of the feel-
ings, affections, or propensities, but without any
illusions or derangement of the intellectual facul-
ties; irresistible impulse or an incapacity to resist
the prompting of the passions, though accompa-
nied by the power of discerning the moral or im-
moral character of the act. Moral insanity is not
admitted as a bar to civil or criminal responsibility
for the patient's acts, unless there is also shown
to be intellectual disturbance, as manifested by in-
sane delusions or the other recognized criteria of
legal insanity. Taylor v. McClintock, 87 Ark. 243,
112 S.W. 405, 412; Bensberg v. Washington Uni-
versity, 251 Mo. 641, 158 S.W. 330, 336.
In a very few of the states where moral insanity is recog-
nized as a defense, it means an incapacity of resistance, as
where there was an entire destruction of the freedom of the
will, although the person perceived the moral or immoral
character of the act. State v. Leehman, 2 S.D. 171, 49 N.W.
3, 5.
Partial insanity, as a legal term, may mean ei-
ther monomania (see infra) or an intermediate
stage in the development of mental derangement.
In the former sense, it does not relieve the patient
from responsibility for his acts, except where in-
stigated directly by his particular delusion or ob-
session: Trich v. Trich, 165 Pa. 586, 30 A. 1053. In
the latter sense, it denotes a clouding or weaken-
ing of the mind, not inconsistent with some meas-
ure of memory, reason, and judgment. But the
term, in this sense, does not convey any very defi-
nite meaning, since it may range from mere fee-
ble-mindedness to almost the last stages of im-
becility. Appeal of Dunham, 27 Conn. 205; State
v. Jones, 50 N.H. 369, 383, 9 Am.Rep. 242.
Psychoneurosis. Mental disease without recog-
nizable anatomical lesion, and without evidence
and history of preceding chronic mental degenera-
tion. Under this head come melancholia, mania,
primary acute dementia, and mania hallucina-
toria. Cent. Dict.
"Neurosis," in its broadest sense, may include any dis-
ease or disorder of the mind, and hence all the forms of
insanity proper. But the term "psychoneurosis" is now
employed by Freud and other European specialists to
describe that class of exaggerated individual peculiarities
or idiosyncrasies of thought towards special objects or top-
ics which are absent from the perfectly normal mind, and
which yet have so little influence upon the patient's conduct
or his general modes of thought that they cannot properly
be described as "insanity" or as any form of "mania,"
especially because ordinarily unaccompanied by any kind of
delusions. At most, they lie on the debatable border-land
between sanity and insanity. These idiosyncrasies or obses-
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sions may arise from superstition, from a real incident in
the patient's past history upon which he has brooded until
it has assumed an unreal importance or significance, or
from general neurasthenic conditions. Such, for example,
are a terrified shrinking from certain kinds of animals,
unreasonable dread of being shut up in some enclosed place
or of being alone in a crowd, excessive fear of being poi-
stoned, groundless conviction of irredeemable sinfulness,
and countless other prepossessions, which may range from
mere weak-minded superstition to actual monomania.
Recurrent insanity. Insanity which returns
from time to time, hence equivalent to "lunacy"
(see supra) in its common-law sense, as a mental
disorder broken by lucid intervals. There is no
presumption that fitful and exceptional attacks of
insanity are continuous. Leache v. State, 22 Tex.
App. 279, 3 S.W. 538, 58 Am.Rep. 638.
Settled insanity. The term applied to delirium
tremens, which is a kind of insanity produced by
alcoholism, caused by the breaking down of the
person's system by long-continued or habitual
drunkenness, and brought on by abstinence from
drink. It is thus termed, to distinguish it from.
"temporary insanity," or drunkenness directly re-
sulting from drink. Evers v. State, 31 Tex.Cr.
R. 318, 20 S.W. 744, 748, 18 L.R.A. 421, 37 Am.St.
Rep. 811.
Temporary delusion. The word implies un-
soundness or derangement of mind or intellect,
not a mere temporary or slight delusion, which
might be occasioned by fever or accident. Karow
v. New York Continental Ins. Co., 57 Wis. 56, 15
N.W. 27, 31, 46 Am.Rep. 17.
Other Forms of Insanity
Amentia, dementia, and mania. The classifica-
tion of insanity into these three types or forms,
though once common, has of late given way to a
more scientific nomenclature, based chiefly on the
origin or cause of the disease in the particular pa-
tient and its clinical history. These terms, how-
ever, are still occasionally encountered in medical
jurisprudence, and the names of some of their
subdivisions are in constant use.
Amentia. A total lack of intelligence, reason,
or mental capacity. Sometimes so used as to cov-
er imbecility or dotage, or even as applicable to
all forms of insanity; but properly restricted to
a lack of mental capacity due to original defective
organization of the brain (idiocy) or arrested cere-
bral development, as distinguished from the degen-
eration of intellectual faculties which once were
normal.
Dementia. A form of insanity resulting from
degeneration or disorder of the brain (idiopathic
or traumatic, but not congenital) and characterized
by general mental weakness and decrepitude, for-
getfulness, loss of coherence, and total inability to
reason, but not accompanied by delusions or un-
controllable impulses. Dennett v. Dennett, 44 N.H.
531, 84 Am.Dec. 97; People v. Lake, 2 Parker, Cr.R.
(N.Y.) 218; Graham v. Deuterman, 91 N.E. 61,
62, 244 Ill. 124; Hibbard v. Baker, 104 N.W. 399,
400, 141 Mich. 124.
Among the sub-divisions of dementia should be noticed
the following : Acute primary dementia is a form of tem-
porary dementia, though often extreme in its intensity, and
occurring in young people or adolescents, accompanied by
general physical debility or exhaustion and induced by con-
ditions likely to produce that state, as malnutrition, over-
work, dissipation, or too rapid growth. Dementia paraly-
tica is a progressive form of insanity, beginning with slight
degeneration of the physical, intellectual, and moral pow-
ers, and leading to complete loss of mentality, or imbecil-
ity, with general paralysis. Also called paresis, paretic
dementia, or cirrhosis of the brain, or (popularly) "soften-
ing of the brain." Dementia prcecox. A term applicable
either to the early stages of dementia or to the dementia of
adolescence, but more commonly applied to the latter. It
is often (but not invariably) attributable to onanism or
self-abuse, and is characterized by mental and moral stu-
pidity, absence of any strong feeling of the impressions of
life or interest in its events, blunting or obscuration of
the moral sense, weakness of judgment, flightiness of
thought, senseless laughter without mirth, automatic obedi-
ence, and apathetic despondency. (Kraepelin.) Senile
dementia. Dementia occurring in persons of advanced age,
and characterized by slowness and weakness of the mental
processes and general physical degeneration, verging on or
passing into imbecility, indicating the breaking down of the
mental powers in advance of bodily decay. Hiett v. Shull,
36 W.Va. 563, 15 S.E. 146. Toxic dementia. Weakness
of mind or feeble cerebral activity, approaching imbecili-
ty, resulting from continued administration or use of slow
poisons or of the mere active poisons in repeated small
doses, as in cases of lead poisoning and in some cases of
addiction to such drugs as opium or alcohol.
Dementia praecox paranoid. A medical term in-
dicating that form of dementia in which the pa-
tient exhibits ideas of persecution and has delu-
sions. Rasmussen v. George Benz & Sons, 168 -
Minn. 319, 210 N.W. 75, 76.
Dipsomania. An irresistible impulse to indulge
in intoxication, either alcohol or other drugs-
opiums. This mania, or dipsomania, is classed as
one of the minor forms of insanity. Repeated
intoxication for a number of 'ears, which is en-
tirely voluntary, is not dipsomania. One having
the power to refrain from the use of intoxicants,
and who becomes intoxicated voluntarily, is not
affected with dipsomania. Ballard v. State, 19
Neb. 609, 28 N.W. 271, 273. State v. Reidell, 14
A. 550, 9 Houst. (Del.) 470.
Erotomania. A form of mania similar to nym-
phomania, except that the present term is applied
to patients of both sexes, and that (according to
some authorities) it is applicable to all cases of
excessive sexual craving irrespective of origin;
while nymphomania is restricted to cases where
the disease is caused by a local disorder of the
sexual organs reacting on the brain. In eroto-
mania, there is often an absence of any lesion of
the intellectual powers. Krafft-Ebing, Psycopathia
Sexualis, Chaddock's ed. And it is to be observed
that the term "erotomania" is now often used,
especially by French writers, to describe a morbid
propensity for "falling in love" or an exaggerated
and excited condition of amativeness or love-sick-
ness, which may affect the general physical health,
but is not necessarily correlated with any sexual
craving, and which, though it may unnaturally
color the imagination and distort the subject's
view of life and affairs, does not at all amount
to insanity, and should not be so considered when
it leads to crimes of violence, as in the common
case of a rejected lover who kills his mistress.
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Fit of mania. A fit of mania includes a tern-
porary depression or aberration of the mind,
which sometimes accompanies or follows intoxica-
tion, and is often accompanied by delusions, hallu-
cinations, and illusions. Gunter v. State, 3 So.
600, 607, 83 Ala. 96.
Homicidal mania. A form of mania in which
the morbid state of the mind manifests itself in
an irresistible inclination or impulse to commit
homicide, prompted usually by an insane delusion
either as to the necessity- of self-defense or the
avenging of injuries, or as to the patient being the
appointed instrument of a superhuman justice.
Com. v. Sayre, 5 Wkly. Notes Cas. (Pa.) 425.
Hypomania. A mild or slightly developed form
or type of mania.
Kleptomania. See Kleptomania.
Mania. That form of insanity in which the pa-
tient is subject to hallucinations and illusions, ac-
companied by a high state of general mental ex-
citement, sometimes amounting to fury. Hall v.
Unger, 2 Abb. U. S. 510, 11 Fed.Cas. 261; People
v. Lake, 2 Parker Cr.R., N.Y., 218.
In the case first above cited, the following description Is
given by Justice Field : "Mania is that form of insanity
where the mental derangement is accompanied with more
or less of excitement. Sometimes the excitement amounts
to a fury. The individual in such cases is subject to hal-
lucinations and illusions. He is impressed with the reality
of events which have never occurred, and of things which
do not exist, and acts more or less in conformity with his
belief in these particulars. The mania may be general, and
affect all or most of the operations of the mind ; or it may
be partial, and be confined to particular subjects. In the
latter case it is generally termed 'monomania.' " In a
more popular but less scientific sense, "mania" denotes a
morbid or unnatural or excessive craving, issuing in im-
pulses of such fixity and intensity that they cannot be
resisted by the patient in the enfeebled state of the will and
blurred moral concepts which accompany the disease. It is
used in this sense in such compounds as "homicidal ma-
nia," "dipsomania," and the like.
Mania a potu. Delirium tremens, or a species
of temporary insanity resulting as a secondary
effect produced by the excessive and protracted in-
dulgence in intoxicating liquors. See State v. Hur-
ley, Houst.Cr.Cas. (Del.) 28, 35.
Mania fanatica. A form of insanity character-
ized by a morbid state of religious feeling. Ekin
v. McCracken, 11 Phila., Pa. 540.
Mania transitoria. The term applies to the case
of one in the possession of his ordinary reasoning
faculties, who allows his passions to convert him
into a temporary maniac. Mutual Life Ins. Co. v.
Terry, 82 U.S. (15 Wall.) 580, 583, 21 L.Ed. 236.
Megalomania. The so-called "delirium of gran-
deur" or "folie de grandeur;" a form of mania in
which the besetting delusion of the patient is that
he is some person of great celebrity or exalted
rank, historical or contemporary.
Melancholia. A form of insanity the characteris-
tics of which are extreme mental depression, with
delusions and hallucinations, the latter relating es-
pecially to the financial or social position of the
patient or to impending or threatened dangers to
his person, property, or reputation, or issuing in
distorted conceptions of his relations to society or
his family or of his rights and duties in general.
State v. Reidell, 9 Houst., Del., 470, 14 A. 551; Peo-
ple v. Krist, 168 N.Y. 19, 60 N.E. 1057. Hypochon-
dria or hypochondriasis. A form of melancholia
in which the patient has exaggerated or causeless
fears concerning his health or suffers from imag-
inary disease. Toxiphobia. Morbid dread of be-
ing poisoned; a form of insanity manifesting it-
self by an excessive and unfounded apprehension
of death by poison.
Methomania. An irresistible craving for alcohol-
ic or other intoxicating liquors, manifested by the
periodical recurrence of drunken debauches. State
v. Savage, 89 Ala. 1, 7 So. 183, 7 L.R.A. 426.
Monomania. A perversion of the understanding
in regard to a single object or a small number of
objects, with the predominance of mental excite-
ment, as distinguished from "mania," which
means a condition in which the perversion of the
understanding embraces all kinds of objects, and
is accompanied with general mental excitement.
State v. John, 30 N.C. 330, 337, 49 Am.Dec. 396;
Freed v. Brown, 55 Ind. 310, 317; People v. Lake,
2 Parker, Cr.R. (N.Y.) 215, 218. A perversion or
derangement of the reason or understanding with
reference to a single subject or small class of
subjects, with considerable mental excitement and
delusions, while, as to all matters outside the
range of the peculiar infirmity, the intellectual
faculties remain unimpaired and function normal-
ly. Hopps v. People, 31 Ill. 390, 83 Am.Dec. 231;
Bohler v. Hicks, 120 Ga. 800, 48 S.E. 306, 307.
Necrophilism. A form of affective insanity
manifesting itself in an unnatural and revolting
fondness for corpses, the patient desiring to be in
their presence, to caress them, to exhume them, or
sometimes to mutilate them, and even (in a form
of sexual perversion) to violate them.
Nymphomania. A form of mania characterized
by a morbid, excessive, and uncontrollable craving
for sexual intercourse. This term is applied only
to women. The term for a corresponding mania
in men is "satyriasis."
Oikei mania. A form of insanity manifesting
itself in a morbid state of the domestic affections,
as an unreasonable dislike of wife or child without
cause or provocation. Ekin v. McCracken, 11
Phila. (Pa.) 540.
Paranoia. Monomania in general, or the obses-
sion of a delusion or system of delusions which
dominate without destroying the mental capacity,
leaving the patient sane as to all matters outside
their particular range, though subject to perverted
ideas, false beliefs, and uncontrollable impulses
within that range; and particularly, the form of
monomania where the delusion is as to wrongs, in-
juries, or persecution inflicted upon the patient
and his consequently justifiable resentment or re-
venge. Winters v. State, 61 N.J.L. 613, 41 Atl. 220;
People v. Braun, 158 N.Y. 558, 53 N.E. 529. Para-
noia is called by Kraepelin "progressive systema-
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INSANITY
tized insanity," because the delusions of being
wronged or of persecution and of excessive self-
esteem develop quite slowly, without independent
disturbances of emotional life or of the will be-
coming prominent, and because there occurs regu-
larly a mental working up of the delusion to form
a delusionary view of the world,-in fact, a sys-
tem,-leading to a derangement of the stand-point
which the patient takes up towards the events of
life.
Pyromania. Incendiarism; a form of affective
insanity in which the mania takes the form of an
irresistable impulse to burn or set fire to things.
Sebastomania. Religious insanity; demono-
mania.
Toxicomania. An excessive addiction to the use
of toxic or poisonous drugs or other substances-,
a form of mania or affective insanity character-
ized by an irresistible impulse to indulgence in
opium, cocaine, chloral, alcohol, etc.
Specific Definitions and Applications in Law
There are numerous legal proceedings where
insanity may be shown, and the rule for establish-
ing mental capacity or the want of it varies ac-
cording to the object or purpose of the proceeding.
Among these may be enumerated the following:
A criminal prosecution where insanity is alleged
as a defense; a proceeding to defeat a will on the
ground of the insanity of the testator; a suit to
avoid a contract (including that of marriage) for
similar reasons; a proceeding to secure the com-
mitment of a person alleged to be insane to an
asylum; a proceeding to appoint a guardian or
conservator for an alleged lunatic; a plea or pro-
ceeding to avoid the effect of the statute of limita-
tions on account of insanity. What might be re-
garded as insanity in one of such cases would not
necessarily be so regarded in another. No definite
rule can be laid down which would apply to all
cases alike. Snyder v. Snyder, 142 Ill. 60, 31 N.E.
303; Clarke v. Irwin, 63 Neb. 539, 88 N.W. 783.
But the following rules or tests for specific cases
have been generally accepted and approved:
In criminal law and as a defense to an accusa-
tion of crime, insanity means such a perverted
and deranged condition of the mental and moral
faculties as to render the person incapable of dis-
tinguishing between right and wrong, or to render
him at the time unconscious of the nature of the
act he is committing, or such that, though he may
be conscious of it and also of its normal quality,
so as to know that the act in question is wrong,
yet his will or volition has been (otherwise than
voluntarily) so completely destroyed that his ac-
tions are not subject to it but are beyond his con-
trol. Or, as otherwise stated, insanity is such a
state of mental derangement that the subject is
incompetent of having a criminal intent, or incap-
able of so controlling his will as to avoid doing
the act in question. Davis v. U. S., 17 S.Ct. 360,
165 U.S. 373, 41 L.Ed. 750; Doherty v. State, 50 A.
1113, 73 Vt. 380; Butler v. State, 102 Wis. 364, 78
N.W. 590.
An insane person cannot be legally charged
with a criminal intent; State v. Brown, 36 Utah,
46, 102 P. 641, 24 L.R.A.,N.S., 545.
In Coleman's case, in New York it was held that the "test
of the responsibility for criminal acts, when insanity is
asserted, is the capacity of the accused to distinguish
between right and wrong at the time and with respect to
the act which is the subject of inquiry." 1 N.Y.Cr.Rep. 1.
With variations of expression this is the prevailing doctrine
of the American courts. Mutual Life Ins. Co. v. Terry, 15
Wall. 590, 21 L.Ed. 236.
The capacity to distinguish between right and wrong has
been held not to be a safe test in all cases. State v. Felter,
25 Iowa 67, per Dillon, C. J. See also Brown v. Corn., 78
Pa. 122.
Insane delusion is of no avail as a defense unless, if true,
the facts supposed to exist would have excused the crime.
Thurman v. State, 32 Neb. 224, 49 N.W. 338; Smith v.
State, 55 Ark. 259, 18 S. W. 237. Irresistible impulse to
commit a crime is defined as that uncontrollable impulse
produced by a disease of the mind, when that disease is
sufficient to override judgment and obliterate the sense of
right as to the acts done, and deprives the accused of power
to choose between them. It was recognized as a defense in
Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634. But it is held
that no impulse, however irresistible, is a defense, where
there is a knowledge as to the particular act between right
and wrong. State v. Brandon, 53 N.C. 463; State v. Miller,
141 Mo. 542, 20 S.W. 243, and that it was a crime morally,
and punishable by the laws of the country; State v. Alex-
ander, 30 S.C. 74, 8 S.E. 440, 14 Am.St.Rep. 879; Williams
v. State, 50 Ark. 511, 9 S.W. 5.
Mere frenzy or ungovernable passion which controls the
will and motives is not insanity sufficient to excuse crime.
Garner v. State, 112 Miss. 317, 73 So. 50, 5L
What is sometimes called moral insanity, as distinguished
from mental unsoundness, is not a defense to a charge of
crime. Flanagan v. People, 52 N.Y. 467, 11 Am.Rep. 731;
Andersen v. State, 43 Conn. 514, 21 Am.Rep. 669; St. Louis
Mut. Life Ins. Co. v. Graves, 6 Bush, Ky., 268.
Testamentary capacity includes an intelligent
understanding of the testator's property, its extent
and items, and of the nature of the act he is about
to perform, together with a clear understanding
and purpose as to the manner of its distribution
and the persons who are to receive it. Lacking
these, he is not mentally competent. The presence
of insane delusions is not inconsistent with tes-
tamentary capacity, if they are of such a nature
that they cannot reasonably be supposed to have
affected the dispositions made by the will; and
the same is true of the various forms of mono-
mania and of all kinds of eccentricity and personal
idiosyncrasy. But imbecility, senile dementia, and
all forms of systematized mania which affect the
understanding and judgment generally disable the
patient from making a valid will. Harrison v.
Rowan, 3 Wash. C. C. 585, Fed. Cas. No. 6,141;
Wilson v. Mitchell, 101 Pa. 495; Trustees of Ep-
worth Memorial Methodist Church v. Overman,
185 Ky. 773, 215 S.W. 942, 944. To constitute "se-
nile dementia," incapacitating one to make a will,
there must be such a failure of the mind as to
deprive the testator of intelligent action. Gates
v. Cole, 137 Iowa 613, 115 N.W. 236, 237, 238.
As a ground for avoiding or annulling a contract
or conveyance, insanity does not mean a total de-
privation of reason, but an inability, from defect
of perception, memory, and judgment, to do the
act in question or to understand its nature and
consequences. Frazer v. Frazer, 2 Del. Ch. 260;
Durrett v. McWhorter, 161 Ga. 179, 129 S.E. 870,
874. The insanity must have entered into and in-
•
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INSANITY
duced the particular contract or conveyance; it
must appear that it was not the act of the free
and untrammeled mind, and that on account of
the diseased condition of the mind the person en-
tered into a contract or made a conveyance which
he would not have made if he had been in the pos-
session of his reason. Dewey v. Aligire, 37 Neb.
6, 55 N.W. 276, 40 Am.St.Rep. 468.
Insanity sufficient to justify the annulment of a
marriage means such a want of understanding at
the time of the marriage as to render the party
incapable of assenting to the contract of marriage.
The morbid propensity to steal, called "klepto-
mania," does not answer this description. Lewis
v. Lewis, 44 Minn. 124, 46 N.W. 323, '9 L.R.A. 505,
20 Am.St.Rep. 559. The marriage of a person
insane was held void in Inhabitants of Middlebor-
ough v. Inhabitants of Rochester, 12 Mass. 363.
Powell v. Powell, 18 Kan. 371, 26 Am.Rep. 774;
Waymire v. Jetmore, 22 Ohio St. 271. A marriage
contracted while one party was insane from de-
lirium tremens was held void, but mere weakness
of mind not amounting to derangement is not
sufficient. Rawdon v. Rawdon, 28 Ala. 565 ; and
Vir that merely, or intoxication, a court has no
power to declare a marriage null and void. The
same degree of mental capacity which enables a
person to make a valid deed or will is sufficient
to enable him to marry; Inhabitants of Atkinson
v. Inhabitants of Medford, 46 Me. 510.
Tnsanity is not a defense in an action of tort;
but damages are compensatory and not punitive;
McIntyre v. Sholty, 121 Ill. 660, 13 N.E. 239, 2 Am.
St.Rep. 140. Williams v. Hays, 143 N.Y. 442, 38 N.
E. 449, 26 L.R.A. 153, 42 Am.St.Rep. 743.
One is "insane," so as to make self-destruction
an accident, within the meaning of an insurance
policy compensating death by accident, where he
is so mentally diseased as to be incapable of un-
derstanding the nature of the act and unable to
distinguish between right and wrong. London
Guarantee & Accident Co. v. Officer, 78 Colo. 441,
242 P. 989, 991.
As a ground for restraining the personal liberty
of the patient, it may be said in general that the
form of insanity from which he suffers should
be such as to make his going at large a source of
danger to himself or to others, though this matter
is largely regulated by statute, and in many plac-
es the law permits the commitment to insane asy-
lums and hospitals of persons whose insanity does
not manifest itself in homicidal or other destruc-
tive forms of mania, but who are incapable of
caring for themselves and their property or who
are simply fit subjects for treatment in hospitals
and other institutions specially designed for the
care of such patients.
To constitute insanity such as will authorize the
appointment of a guardian or conservator for the
patient, there must be such a deprivation of rea-
son and judgment as to render him incapable of
understanding and acting with discretion in the
ordinary affairs of life; a want of sufficient men-
tal capacity to transact ordinary business and to
take care of and manage his property and affairs.
See Snyder v. Snyder, 142 Ill. 60, 31 N.E. 303.
Insanity as a plea or proceeding to avoid the
effect of the statute of limitations means prac-
tically the same thing as in relation to the appoint-
ment of a guardian. On the one hand, it does not
require a total deprivation of reason or absence
of understanding. On the other hand, it does not
include mere weakness of mind short of imbecility.
It means such a degree of derangement as renders
the subject incapable of understanding the nature
of the particular affair and his rights and reme-
dies in regard to it and incapable of taking dis-
creet and intelligent action. Burnham v. Mitchell,
34 Wis. 134. The time of sanity required in order
to allow the statute to begin to run is such as will
enable the party to examine his affairs and insti-
tute an action, and is for the jury.
There are a few other legal rights or relations
into which the question of insanity enters, such
as the capacity of a witness or of a voter; but
they are governed by the same general principles.
The test is capacity to understand and appreciate
the nature of the particular act and to exercise
intelligence in its performance. A witness must
understand the nature and purpose of an oath and
have enough intelligence and memory to relate
correctly the facts within his knowledge. So a
voter must understand the nature of the act to be
performed and be able to make an intelligent
choice of candidates. In either case, eccentricity,
"crankiness," feeble-mindedness not amounting to
imbecility, or insane delusions which do not affect
the matter in hand, do not disqualify. See Dis-
trict of Columbia v. Armes, 2 S.Ct. 840, 107 U.S.
521, 27 L.Ed. 618.
INSANUS EST QUI, ABJECTA RATIONE, OM-
NIA CUM IMPETU ET FURORE FACIT. He is
insane who, reason being thrown away, does
everything with violence and rage. 4 Coke, 128.
INSCRIBERE. Lat. In the civil law. To sub-
scribe an accusation. To bind one's self, in case
of failure to prove an accusation, to suffer the
same punishment which the accused would have
suffered had he been proved guilty. Calvin.
INSCRIPTIO. Lat. In the civil law. A written
accusation in which the accuser undertakes to suf-
fer the punishment appropriate to the offense
charged, if the accused is able to clear himself of
the accusation. Calvin; Cod. 9, 1, 10; Id. 9, 2,
16, 17.
INSCRIPTION. In Evidence. Anything written
or engraved upon a metallic or other solid sub-
stance, intended for great durability; as upon a
tombstone, pillar, tablet, medal, ring, etc.
In Civil law. An engagement which a person
who makes a solemn accusation of a crime against
another enters into that he will suffer the same
punishment, if he has accused the other falsely,
which would have been inflicted upon him had he
been guilty. Code, 9. 1. 10; 9. 2. 16 and 17.
In Modern Civil law. The entry of a mortgage,
lien, or other document at large in a book of pub-
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INSOLVENCY
lic records; corresponding to "recording" or "reg-
istration."
INSCRIPTIONES. The name given by the old
English law to any written instrument by which
anything was granted. Blount.
INSECT POWDER. "Insect powder" is a dry
powder used to kill or expel insects; an insecti-
cide or insectifuge. Parke, Davis & Co. v. U. S.,
C.C.A.La., 255 F. 933, 935.
INSECURE. Unsafe and dangerous. Sabol v.
St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 425,
430.
INSENSIBLE. In pleading. Unintelligible; with-
out sense or meaning, from the omission of ma-
terial words, etc. Steph. Pl. 377. See Union Sew-
er Pipe Co. v. Olson, 82 Minn. 187, 84 N.W. 756.
INSETENA. In old records. An inditch; an in-
terior ditch; one made within another, for greater
security. Spelman.
INSIDIATOR. Lat. A soldier lying in ambush.
Hence, one who lies in wait, a lurker, waylayer
(rare). Harpers' Lat. Dict.
INSIDIATORES VIARUM. Lat. Highwaymen;
persons who lie in wait in order to commit some
felony or other misdemeanor.
INSIGNIA. Ensigns or arms; distinctive marks;
badges; indicia; characteristics.
INSILIARIUS. An evil counsellor. Cowell.
INSILIUM. Evil advice or counsel. Cowell.
INSIMUL. Lat. Together; jointly. Townsh. Pl.
44.
INSIMUL COMPUTASSENT. They accounted to-
gether. The name of the count in assumpsit upon
an account stated; it being averred that the par-
ties had settled their accounts together, and de-
fendant engaged to pay plaintiff the balance.
Fraley v. Bispham, 10 Pa. 325, 51 Am.Dec. 486;
Loventhal v. Morris, 103 Ala. 332, 15 So. 672.
INSIMUL TENUIT. One species of the writ of
formedon brought against a stranger by a copar-
cener on the possession of the ancestor, etc. Ja-
cob.
INSINUACION. In Spanish law. The presenta-
tion of a public document to a competent judge,
in order to obtain his approbation and sanction of
the same, and thereby give it judicial authenticity.
Escriche.
INSINUARE. Lat. In the civil law. To put into;
to deposit a writing in court, answering nearly
to the modern expression "to file." Si non manda-
tum actis insinuatum est, if the power or authority
be not deposited among the records of the court.
Inst. 4, 11, 3. To declare or acknowledge before
a judicial officer; to give an act an official form.
INSINUATIO. Lat. In old English law. Infor-
mation or suggestion. Ex insinuatione, on the in-
formation. Reg. Jud. 25, 50.
INSINUATION. In the civil law. The transcrip-
tion of an act on the public registers like our
recording of deeds. It was not necessary in any
other alienation but that appropriated to the pur-
pose of donation. Inst. 2, 7, 2.
INSINUATION OF A WILL. In the civil law.
The first production of a will, or the leaving it
with the registrar, in order to its probate. Cowell;
Blount.
INSOLATION. In medical jurisprudence. Sun-
stroke or heat-stroke; heat prostration.
INSOLVENCY. The condition of a person who is
insolvent; inability to pay one's debts; lack of
means to pay one's debts. Such a relative condi-
tion of a man's assets and liabilities that the form-
er, if all made immediately available, would not
be sufficient to discharge the latter. Or the con-
dition of a person who is unable to pay his debts
as they fall due, or in the usual course of trade
and business. Dewey v. St. Albans Trust Co., 56
Vt. 475, 48 Am.Rep. 803; Toof v. Martin, 13 Wall.
47, 20 L.Ed. 481; Frank v. Stearns, 111 Neb. 101,
195 N.W. 949, 951.
Independent of statute, it may generally be said that
insolvency, when applied to a person, firm, or corporation
engaged in trade, means inability to pay debts as they
become due in the usual course of business. Parker v. First
Nat. Bank, 96 Okl. 70, 220 P. 39; Bushman v. Bushman,
311 Mo. 551, 279 S.W. 122, 126. The mere fact that a corpo-
ration or an individual is unable to pay its debts upon a
particular day does not constitute "insolvency." Wiggins
Co. v. McMinnville Motor Car Co., 111 Or. 123, 225 P. 314,
317, and a bank is not "insolvent" if its assets are sufficient
to meet its obligations within a reasonable time, although
it did not have cash sufficient for its daily needs. Dunlap
v. Seattle Nat. Bank, 93 Wash. 568, 161 P. 364, 368.
A man may be fully able to pay his debts, if he will, and
yet in the eye of the law he is insolvent, if his property is
so situated that it cannot be reached by process of law, and
subjected, without his consent, to the payment of his debts.
Pelham v. Chattahoochee Grocery Co., 156 Ala. 500, 47 So.
172.
Under Bankr.Act July 1, 1898, c. 541, § 1, cl. 19, as
amended, (formerly 15), 30 Stat. 544 (11 U.S.C.A. § 1), and
section 3a, cl. 4, as amended, (11 U.S.C.A. § 44), a person
shall be deemed insolvent within the provisions of the act
whenever the aggregate of his property, exclusive of any
property which he may have conveyed, transferred, con-
cealed, removed, or permitted to be concealed or removed,
with intent to defraud, hinder, or delay his creditors, shall
not at a fair valuation be sufficient in amount to pay his
debts. In re Wm. S. Butler Co., C.C.A.Mass., 207 F. 705,
709; Anderson v. Myers, C.C.A.Fla., 296 F. 101, 103; Moun-
tain States Power Co. v. A. L. Jordan Lumber Co., C.C.A.
Mont., 293 F. 502, 507.
As to the distinction between bankruptcy and insolvency,
see Bankruptcy.
Commercial Insolvency. See that title.
Insolvency fund. In English law. A fund, con-
sisting of moneys and securities, which, at the time
of the passing of the bankruptcy act, 1861, stood,
in the Bank of England, to the credit of the com-
missioners of the insolvent debtors' court, and
was, by the twenty-sixth section of that act, di-
rected to be carried by the bank to the account of
the accountant in bankruptcy. Provision has now
been made for its transfer to the commissioners
for the reduction of the national debt. Robs.
Bankr. 20, 56.
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Insolvency laws. Insolvency laws are generally
statutory provisions by which the property of the
debtor is surrendered for his debts; and upon this
condition, and the assent of a certain proportion
of his creditors, he is discharged from all further
liabilities; Bartlet v. Prince, 9 Mass. 431; Otis v.
Warren, 16 Mass. 53; 2 Kent 321; Ingr. Insolv.
9. Insolvency, according to some of the state
statutes, may be of two kinds, voluntary and in-
voluntary. Voluntary insolvency is the case in
which the debtor institutes the proceedings, and is
desirous of availing himself of the insolvent laws,
and petitions for that purpose whereas involun-
tary insolvency is where the proceedings are in-
stituted by the creditors in invitum, and so the
debtor forced into insolvency.
Open insolvency. The condition of one who has
no property, within the reach of the law, applica-
ble to the payment of any debt. Hardesty v. Kin-
worthy, 8 Blackf. (Ind.) 305; Somerby v. Brown,
73 Ind. 356.
INSOLVENT. (Lat. in, privative, solvo, to pay).
The condition of a person who is unable to pay
his debts. 2 Bla.Com. 285, 471; Brouwer v. Har-
beck, 9 N.Y. 589. One who cannot or does not pay;
one who is unable to pay his debts; one who is not
solvent; one who has not means or property suf-
ficient to pay his debts. One who is unable to pay
commercial paper in the due course of business.
Warren v. Nat. Bank, 10 Blatchf. 493, Fed. Cas.
No. 17,202; Clarke v. Mott, 4 Cal.Unrep.Cas. 80,
33 P. 884. See, also, Insolvency.
Other definitions
One who is unable to pay his debts as they fall due in the
usual course of trade or business, 2 Kent 389; 1 M. & S.
338; Lee v. Kilbourn, 3 Gray, Mass., 600; Mitchell v. Brad-
street Co., 116 Mo. 226, 22 S.W. 358, 724, 20 L.R.A. 138, 38
Am.St.Rep. 592; although his assets in value exceed the
amount of his liability, In re Ramazzina, 110 Cal. 488, 42
P. 970; or the embarrassment is only temporary, Langham
v. Lanier, 7 Tex.Civ.App. 4, 26 S.W. 255; but it is held
that mere inability to pay debts promptly as they mature is
not conclusive, Mensing v. Atchison, Tex.Civ.App., 26 S.W.
509; and that one who has sufficient property subject to
legal process to satisfy all legal demands is not insolvent.
Smith v. Collins, 94 Ala. 394, 10 So. 334. A corporation is
insolvent when its assets are insufficient for the payment of
its debts, and it has ceased to do business, or has taken, or
is in the act of taking, a step which will practically inca-
pacitate it from conducting the corporate enterprise with
reasonable prospect of success, or its embarrassments are
such that early suspension and failure must ensue. Corey
v. Wadsworth, 99 Ala. 68, 11 So. 350, 23 L.R.A. 618, 42
Am.St.Rep. 29. A bank is insolvent when the cash value of
its assets realizable in a reasonable time is not equal to its
liabilities exclusive of stock liabilities. Ellis v. State, 138
Wis. 513, 119 N.W. 1110, 20 L.R.A.,N.S., 444, 131 Am.St.Rep.
1022.
INSOLVENT LAW. See Insolvency Laws.
INSPECT. To look, to view or oversee for the
purpose of ascertaining the quality or condition of
the thing or for purpose of examination. U. S. v.
A. Bentley & Sons Co., D.C.Ohio, 293 F. 229, 239;
O'Hare v. Peacock Dairies, 26 Cal.App.2d 753, 79
14.2d 433, 438.
INSPECTATOR. A prosecutor or adversary.
INSPECTION. A critical examination, close or
careful scrutiny, a strict or prying examination,
or an investigation. In re Becker, 192 N.Y.S. 754,
756, 200 App.Div. 178. An examination or testing
of food, fluids, or other articles made subject by
law to such examination, to ascertain their fitness
for use or commerce. People of the State of New
York v. Compagnie Generale Transatlantique, C.
C.N.Y., 10 F. 361; Id., 2 S.Ct. 87, 107 U.S. 59, 27 L.
Ed. 383; Turner v. Maryland, 2 S.Ct. 44, 107 U.S.
38, 27 L.Ed. 370. An examination by a private
person of public records and documents; or of the
books and papers of his opponent in an action, for
the purpose of better preparing his own case for
trial.
Reasonable inspection. As relates to duty of
employer to .provide employee with proper instru-
mentalities with which to work, does not mean
such an inspection as would necessarily or infal-
libly disclose a defect if one existed, but only such
inspection as reasonably prudent man, in the ex-
ercise of ordinary care, would make. Alabama &
V. R. Co. v. Fountain, 145 Miss. 515, 111 So. 153,
154.
INSPECTION LAWS. Laws authorizing and di-
recting the inspection and examination of various
kinds of merchandise intended for sale, especially
food, with a view to ascertaining its fitness for
use, and excluding unwholesome or unmarketable
goods from sale, and directing the appointment of
official inspectors for that purpose. Const.U.S.
art. 1, § 10, cl. 2; Story, Const. § 1017, et seq. Gib-
bons v. Ogden, 9 Wheat. 202, 6 L.Ed. 23; Clints-
man v. Northrop, 8 Cow. (N.Y.) 45; Patapsco
Guano Co. v. Board of Agriculture, 18 S.Ct. 862, 171
U.S. 345, 41 L.Ed. 191; Turner v. State, 55 Md.
263.
INSPECTION OF DOCUMENTS. This phrase re-
fers to the right of a party, in a civil action, to
inspect and make copies of documents which are
essential or material to the maintenance of his
cause, and which are either in the custody of an
officer of the law or in the possession of the ad-
verse party.
INSPECTION, TRIAL BY. A mode of trial for-
merly in use in England, by which the judges of
a court decided a point in dispute, upon the tes-
timony of their own senses, without the interven-
tion of a jury. This took place in cases where the
fact upon which issue was taken must, from its
nature, be evident to the court from ocular dem-
onstration, or other irrefragable proof; and was
adopted for the greater expedition of a cause. 3
Bl.Comm. 331.
INSPECTOR. The name given to certain officers
whose duties are to examine and inspect things
over which they have jurisdiction. Officers whose
duty it is to examine the quality of certain articles
of merchandise, food, weights and measures, etc.
INSPECTORSHIP, DEED OF. In English law.
An instrument entered into between an insolvent
debtor and his creditors, appointing one or more
persons to inspect and oversee the winding up of
such insolvent's affairs on behalf of the creditors.
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INSTITOR
INSPEXIM'US (Lat.). We have seen. A word
sometimes used in letters patent, reciting a grant,
inspeximus such former grant, and so reciting
it verbatim; it then grants such further privi-
leges as are thought convenient. 5 Co. 54.
INSTALL. To place in a seat, give a place to, to
set, place, or instate in an office, rank, or order,
etc. State ex rel. Slattery v. Raupp, 303 Mo. 684,
263 S.W. 834, 835. To set up or fix in position for
use or service. King v. Elliott, 197 N.C. 93, 147
S.E. 701, 704.
INSTALLATION. The ceremony of inducting or
investing with any charge, office, or rank, as the
placing a bishop into his see, a dean or prebendary
into his stall or seat, or a knight into his order.
Wharton. The act by which an officer is put in
public possession of the place he is to fill. The
president of the United States, or a governor, is
installed into office, by being sworn agreeably to
the constitution and laws.
Installation of machinery means to place in position
where it will reasonably accomplish purposes for which it
is set up. Long v. Ulmer Machinery Co., 77 Cal.App. 66,
246 P. 113, 116.
INSTALLMENTS. Different portions of the same
debt payable at different successive periods as
agreed. Brown. Partial payments on account of
a debt due. Kenney v. Los Feliz Inv. Co., 121
Cal.App. 378, 9 P.2d 225, 228.
INSTANCE. In pleading and practice. Solicita-
tion, properly of an earnest or urgent kind. An
act is often said to be done at a party's "special
instance and request." Miller v. Mutual Grocery
Co., 214 Ala. 62, 106 So. 396.
"Instance" does not imply the same degree of obligation
to obey as does "command." Feore v. Trammel, 213 Ala.
293, 104 So. 808, 813.
In the civil and French law. A general term,
designating all sorts of actions and judicial de-
mands. Dig. 44, 7, 58.
In ecclesiastical law. Causes of instance are
those proceeded in at the solicitation of some
party, as opposed to causes of office, which run in
the name of the judge. Hallifax, Civil Law, p.
156.
In Scotch law. That which may be insisted on
at one diet or course of probation. Wharton.
INSTANCE COURT. In English law. That divi-
sion or department of the court of admiralty
which exercises all the ordinary admiralty juris-
diction, with the single exception of prize cases,
the latter belonging to the branch called the
"Prize Court." The term is sometimes used in
American law for purposes of explanation, but
has no proper application to admiralty courts in
the United States, where the powers of both in-
stance and prize courts are conferred without any
distinction. 3 Kent, Comm. 355, 378; The Betsey,
3 Da11. 6, 1 L.Ed. 485; The Emulous, 1 Gall. 563,
Fed.Cas.No.4,479.
INSTANCIA. In Spanish law. The institution
and prosecution of a suit from its commencement
until definitive judgment. The first instance,
"primera instancia," is the prosecution of the suit
before the judge competent to take cognizance of
it at its inception; the second instance, "secunda
instancia," is the exercise of the same action be-
fore the court of appellate jurisdiction; and the
third instance, "tercera instancia," is the prosecu-
tion of the same suit, either by an application of
revision before the appellate tribunal that has al-
ready decided the cause, or before some higher
tribunal, having jurisdiction of the same. Es-
criche.
INSTANS EST FINIS UNIUS TEMPORIS ET
PRINCIPIUM ALTERIUS. An instant is the end
of one time and the beginning of another. Co_
Litt. 185.
INSTANT. Present, current, as instant case.
Webster, Dict.
INSTANTANEOUS. An "instantaneous" crime is
one which is fully consummated or completed in
and by a single act (such as arson or murder) as
distinguished from one which involves a series or
repetition of acts. U. S. v. Owen, D.C.Or., 32 F. 537.
A death resulting within a few moments from a continu-
ing injury is "instantaneous" within a statute respecting
right of action for death. Beach v. City of St. Joseph, 192
Mich. 296, 158 N.W. 1045, 1046.
INSTANTER. Immediately; instantly; forth-
with; without delay. Trial instanter was had
where a prisoner between attainder and execution
pleaded that he was not the same who was at-
tainted.
When a party is ordered to plead instanter, he
must plead the same day. The term is usually un-
derstood to mean within twenty-four hours. Fent-
ress v. State, 16 Tex.App. 83; Champlin v. Champ-
lin, 2 Edw.Ch., N.Y., 329.
INSTANTLY. Immediately; directly; without de-
lay; at once.
INSTAR. Lat. Likeness; the likeness, size, or
equivalent of a thing. Instar dentium, like teeth.
2 B1.Comm. 295. Instar omnium, equivalent or
tantamount to all. Id. 146; 3 Bl.Comm. 231.
INSTAURUM. In old English deeds. A stock
or store of cattle, and other things; the whole
stock upon a farm, including cattle, wagons, plows,
and all other implements of husbandry. 1 Mon.
Angl. 548b; Fleta, lib. 2, c. 72, § 7. Terra instaura-
ta, land ready stocked.
INSTIGATE. To stimulate or goad to an action,
especially a bad action; one of its synonyms is
"abet". Hughes v. Van Bruggen, 44 N.M. 534, 105
P.2d 494, 499.
INSTIGATION. Incitation; urging; solicitation.
The act by which one incites another to do some-
thing, as to commit some crime or to commence a
suit. State v. Fraker, 148 Mo. 143, 49 S.W. 1017.
INSTIRPARE. To plant or establish.
INSTITOR. Lat. In the civil law. A clerk in a
store; an agent.
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INSTITORIA
INSTITORIA ACTIO. Lat. In the civil law. The
name of an action given to those who had con-
tracted with an institor (q. v.) to compel the prin-
cipal to performance. Inst. 4, 7, 2; Dig. 14, 3, 1;
Story, Ag. § 426.
INSTITORIAL POWER. The charge given to a
clerk to manage a shop or store. 1 Bell, Comm.
506, 507.
INSTITUTE, v. To inaugurate or commence; as
to institute an action. Post v. U. S., 16 S.Ct. 611,
161 U.S. 583, 40 L.Ed. 816; Ballard v. Cash, 191
Ky. 312, 230 S.W. 48, 49; Latham v. Latham, 178
N.C. 100 S.E. 131, 132. To set up, to originate,
to introduce. Brown v. City of Portland, 97 Or.
600, 190 P. 722, 724.
To nominate, constitute, or appoint; as to in-
stitute an heir by testament. Dig. 28, 5, 65.
INSTITUTE, n. In the civil law. A person named
in the will as heir, but with a direction that he
shall pass over the estate to another designated
person, called the "substitute."
In Scotch law. The person to whom an estate
is first given by destination or limitation; the
others, or the heirs of tailzie, are called "substi-
tutes."
INSTITUTED EXECUTOR. An instituted execu-
tor is one who is appointed by the testator without
any condition.
INSTITUTES. A name sometimes given to text-
books containing the elementary principles of
jurisprudence, arranged in an orderly and sys-
tematic manner. For example, the Institutes of
Justinian, of Gaius, of Lord Coke.
Institutes of Gaius. An elementary work of the
Roman jurist Gaius; important as having formed
the foundation of the Institutes of Justinian,
(q. v.). These Institutes were discovered by Nie-
buhr in 1816, in a codex rescriptus of the library of
the cathedral chapter at Verona, and were first
published at Berlin in 1820. Two editions have
since appeared. Mackeld.Rom.Law, § 54.
Institutes of Justinian. One of the four compo-
nent parts or principal divisions of the Corpus Ju-
ris Civilis, being an elementary treatise on the
Roman law, in four books. This work was com-
piled from earlier sources, (resting principally on
the Institutes of Gaius,) by a commission com-
posed of Tribonian and two others, by command
and under direction of the emperor Justinian,
and was first published November 21, A. D. 533.
Institutes of Lord Coke. The name of four vol-
umes by Lord Coke, published A. D. 1628. The
first is an extensive comment upon a treatise on
tenures, compiled by Littleton, a judge of the
common pleas, temp. Edward IV. This comment
is a rich mine of valuable common-law learning,
collected and heaped together from the ancient re-
ports and Year Books, but greatly defective in
method. It is usually cited by the name of "Co.
Litt," or as "1 Inst." The second volume is a
comment upon old acts of parliament, without
systematic order; the third a more methodical
treatise on the pleas of the crown; and the fourth
an account of the several species of courts.
These are cited as 2, 3, or 4 "Inst.," without any
author's name. Wharton.
Theophilus' Institutes. A paraphrase of Justini-
an, made, it is believed, soon after A. D. 533.
This paraphrase maintained itself as a manual of
law until the eighth or tenth century. This text
was used in the time of Hexabiblos of Harmenipu-
lus, the last of the Greek jurists. It is also con-
jectured that Theophilus was not the editor of his
own paraphrase, but that it was drawn up by some
of his pupils after his explanations and lectures, in-
asmuch as it contains certain barbarous phrases,
and the texts of the manuscripts vary greatly from
each other.
INSTITUTIO II1EREDIS. Lat. In Roman law.
The appointment of the hcvres in the will. It cor-
responds very nearly to the nomination of an ex-
ecutor in English law. Without such an appoint-
ment the will was void at law, but the prcetor
(i. e., equity) would, under certain circumstances,
carry out the intentions of the testator. Brown.
INSTITUTION. The commencement or inaugura-
tion of anything. The first establishment of a law,
rule, rite, etc. Any custom, system, organization,
etc., firmly established. An elementary rule or
principle.
An establishment, specially one of public charac-
ter or one affecting a community. State v. Clau-
sen, 85 Wash. 260, 148 P. 28, 32, Ann.Cas.1916B, 810.
An established or organized society or corpora-
tion. It may be private in its character, designed
for profit to those composing the organization, or
public and charitable in its purposes. In re Pea-
body's Estate, 21 Cal.App.2d 690, 70 P.2d 249, 250.
A foundation; as, a literary or charitable institu-
tion. Prescott Courier v. Board of Sup'rs of Yava-
pai County, 49 Ariz. 423, 67 P.2d 483, 486.
The term "institution" is sometimes used as descriptive
of an establishment or place where the business or opera-
tions of a society or association is carried on; at other
times it is used to designate the organized body. Benjamin
Rose Institute v. Myers, 92 Ohio St. 252, 110 N.E. 924, 926,
927, L.R.A.1916D, 1170; Bartling v. Walt, 96 Neb. 532, 148
N.W. 507, 509.
Ecclesiastical Law
A kind of investiture of the spiritual part of
the benefice, as induction is of the temporal; for
by institution the care of the souls of the parish
is committed to the charge of the clerk. Brown.
Civil Law
The appointment of an heir; the act by which
a testator nominates one or more persons to suc-
ceed him in all his rights active and passive. Hali-
fax, Anal. 39; Pothier, Tr. des Donations testa-
mentaires, c. 2, s. 1, § 1; La Civ.Code, art. 1598
(Civ.Code, art. 1605) ; Dig. 28. 5; 1, 1; 28. 6. 1, 2,
§ 4.
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INSTRUMENT
Jurisprudence
The plural form of this word ("institutions")
is sometimes used as the equivalent of "institutes,"
to denote an elementary textbook of the law.
Practice
The commencement of an action or prosecution;
as, A. B. has instituted a suit against C. D. to re-
cover damages for trespass.
Political Law
A law, rite, or ceremony enjoined by authority
as a permanent rule of conduct or of government.
Webster. An organized society, established either
by law or the authority of individuals, for promot-
ing any object, public or social. Dodge v. Wil-
liams, 46 Wis. 70, 1 N.W. 92, 50 N.W. 1103; State
v. Edmondson, 88 Ohio St. 625, 106 N.E. 41, 44.
A system or body of usages, laws, or regula-
tions, of extensive and recurring operation, con-
taining within itself an organism by which it ef-
fects its own independent action, continuance, and
generally its own further development. Its object
is to generate, effect, regulate, or sanction a suc-
cession of acts, transactions, or productions of a
peculiar kind or class. We are likewise in the hab-
it of calling single laws or usages "institutions,"
if their operation is of vital importance and vast
scope, and if their continuance is in a high degree
independent of any interfering power. Lieb. Civil
Lib. 300.
General
Public institution. One which is created and
exists by law or public authority, e. g., an asylum,
charity, college, university, schoolhouse, etc. Hen-
derson v. Shreveport Gas, Electric Light & Power
Co., 134 La. 39, 63 So. 616, 618, 51 L.R.A.,N.S.,
448.
INSTITUTIONES. Lat. Works containing the
elements of any science; institutions or institutes.
One of Justinian's principal law collections, and a
similar work of the Roman jurist Gaius, are so
entitled. See Institutes.
INSTRUCT. To convey information as a client
to an attorney, or as an attorney to a counsel; to
authorize one to appear as advocate; to give a
case in charge to the jury.
INSTRUCTION. In French criminal law. The
first process of a criminal prosecution. It includes
the examination of the accused, the preliminary in-
terrogation of witnesses, collateral investigations,
the gathering of evidence, the reduction of the
whole to order, and the preparation of a document
containing a detailed statement of the case, to
serve as a brief for the prosecuting officers, and to
furnish material for the indictment.
Juges d'instruction. In French law. Officers
subject to the procureur imperial or gendral, who
receive in cases of criminal offenses the com-
plaints of the parties injured, and who summon
and examine witnesses upon oath, and, after com-
munication with the procureur imperial, draw up
the forms of accusation. They have also the right,
subject to the approval of the same superior offi-
cer, to admit the accused to bail. They are ap-
pointed for three years, but are re-eligible for a
further period of office. They are usually chosen
from among the regular judges.. Brown.
Common Law
Order given by a principal to his agent in rela-
tion to the business of his agency.
Practice
A detailed statement of the facts and circum-
stances constituting a cause of action made by a
client to his attorney for the purpose of enabling
the latter to draw a proper declaration or procure
it to be done by a pleader.
Trial Practice
A direction given by the judge to the jury con-
cerning the law of the case; a statement made by
the judge to the jury informing them of the law
applicable to the case in general or some aspect of
it; an exposition of the rules or principles of law
applicable to the case or some branch or phase of
it, which the jury are bound to accept and apply.
Lehman v. Hawks, 121 Ind. 541, 23 N.E. 670;
Boggs v. U. S., 10 Okl. 424, 63 P. 969; Lawler v.
McPheeters, 73 Ind. 579; Davis v. State, 155 Ark.
245, 244 S.W. 750, 752; Kolkman v. People, 89
Colo. 8, 300 P. 575, 583.
The generally accepted meaning of the word in-
struction, when applied to courts, means a direc-
tion that is to be obeyed. State v. Downing, 23
Idaho, 540, 130 P. 461, 462.
Peremptory instruction. An instruction given
by a court to a jury which the latter must obey im-
plicitly; as an instruction to return a verdict for
the defendant, or for the plaintiff, as the case may
be.
INSTRUMENT. A written document; a formal or
legal document in writing, such as a contract,
deed, will, bond, or lease. State v. Phillips, 157
Ind. 481, 62 N.E. 12; Cardenas v. Miller, 108 Cal.
250, 39 P. 783, 49 Am.St.Rep. 84.
Anything reduced to writing, a document of a
formal or solemn character, a writing given as a
means of affording evidence. Smith v. Smith, Ind.
App., 110 N.E. 1013, 1014. A document or writing
which gives formal expression to a legal act or
agreement, for the purpose of creating, securing,
modifying, or terminating a right; a writing
executed and delivered as the evidence of an act
or agreement. Moore v. Diamond Dry Goods Co.,
47 Ariz. 128, 54 P.2d 553, 554.
In the law of evidence. Anything which may be
presented as evidence to the senses of the adjudi-
cating tribunal. 1 Whart.Ev. § 615.
INSTRUMENT OF APPEAL. The document by
which an appeal is brought in an English matri-
monial cause from the president of the probate,
divorce, and admiralty division to the full court.
It is analogous to a petition. Browne, Div. 322.
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INSTRUMENT
INSTRUMENT OF EVIDENCE. Instruments of
evidence are the media through which the evidence
of facts, either disputed or required to be proved,
is conveyed to the mind of a judicial tribunal;
and they comprise persons and living things as
well as writings. Best, Ev. § 123, 1 Whart.Ev. §
615.
INSTRUMENT OF SAISINE. An instrument in
Scotland by which the delivery of "saisine" (i. e.,
seisin, or the feudal possession of land) is attest-
ed. It is subscribed by a notary, in the presence
of witnesses, and is executed in pursuance of a
"precept of saisine," whereby the "grantor of the
deed" desires "any notary public to whom these
presents may be presented" to give saisine to the
intended grantee or grantees. It must be entered
and recorded in the registers of saisines. Mozley
& Whiteley.
INSTRUMENTA. Lat. That kind of evidence
which consists of writings not under seal; as
court-rolls, accounts, and the like. 3 Co.Litt. 487.
INSTRUMENTAL. Serviceable, helpful. Culp v.
Browne, Tex.Civ.App., 235 S.W. 675, 678.
INSTRUMENTALITY RULE. Under this rule,
corporate existence will be disregarded where a
corporation (subsidiary) is so organized and con-
trolled and its affairs so conducted as to make it
only an adjunct and instrumentality of another
corporation (parent corporation). Jenkins Petro-
leum Process Co. v. Western Oil Corporation, D.C.
Del., 21 F.Supp. 550, 551; and parent corporation
will be responsible for the obligations of its sub-
sidiary. Taylor v. Standard Gas & Electric Co.,
C.C.A.Okl., 96 F.2d 693, 704.
INSUBORDINATION. State of being insubordi-
nate; disobedience to constituted authority. Unit-
ed States v. Krafft, C.C.A.N.J., 249 F. 919, 925,
L.R.A.1918F, 402. Refusal to obey some order
which a superior officer is entitled to give and have
obeyed. Garvin v. Chambers, 195 Cal. 212, 232 P.
696, 701; Sheehan v. Board of Police Com'rs of
City and County of San Francisco, 197 Cal. 70, 239
P. 844, 847. Not synonymous with incompetency.
Cafferty v. Southern Tier Pub. Co., 173 N.Y.S. 774,
186 App.Div. 136.
"Insubordination" by a servant imports a willful disre-
gard of express or implied directions of the employer and
refusal to obey reasonable orders. MacIntosh v. Abbot,
231 Mass. 180, 120 N.E. 383.
INSUCKEN MULTURES. A quantity of corn paid
by those who are thirled to a mill. See Thirlage.
INSUFFICIENT. Not sufficient; inadequate to
some need, purpose, or use; wanting in needful
value, ability, or fitness; incompetent; unfit; as
insufficient food; insufficient means. It is the
antonym of "sufficient." Nissen v. Miller, 44 N.M.
487, 105 P.2d 324, 325.
INSUFFICIENCY. In equity pleading. The legal
inadequacy of an answer in equity which does not
fully and specifically reply to some one or more of
the material allegations, charges, or interroga-
tories set forth in the bill. White v. Joy, 13 N.Y.
89; Houghton v. Townsend, 8 How.Prac. (N.Y.)
446; Hill v. Fair Haven & W. R. Co., 75 Conn.
177, 52 A. 725.
INSUFFICIENCY OF EVIDENCE TO SUPPORT
VERDICT. This phrase in a motion for new trial
means that there is some evidence, but not enough
in light of the evidence to the contrary to support
a verdict. Arnold v. Haskins, 347 Mo. 320, 147 S.
W.2d 469, 472. It means that there is no evidence
which ought reasonably to satisfy jury that fact to
be proved is established. Shtevelan v. Metropoli-
tan Life Ins. Co., 295 N.Y.S. 735, 736, 162 Misc.
835.
INSULA. Lat. An island; a house not connected
with other houses, but separated by a surrounding
space of ground. Calvin.
INSULATE. To separate from conducting bodies
by means of nonconductors, as to prevent the
transfer of electricity or heat. Mauney v. Electric
Const. Co., 210 Ala. 554, 98 So. 874, 877.
INSUPER. Lat. Moreover; over and above.
An old exchequer term, applied to a charge made
upon a person in his account. Blount.
INSURABLE. Capable of being insured against
loss, damage, death, etc.; proper to be insured;
affording a sufficient ground for insurance. Green-
berg v. Continental Casualty Co., 24 Cal.App.2d
506, 75 P.2d 644, 649.
INSURABLE INTEREST. Such a real and sub-
stantial interest in specific property as will prevent
a contract to indemnify the person interested
against its loss from being a mere wager policy.
Mutual F. Ins. Co. v. Wagner, Pa., 7 A. 104; Insur-
ance Co. v. Brooks, 131 Ala. 614, 30 So. 876; Berry
v. Insurance Co., 132 N.Y. 49, 30 N.E. 254, 28 Am.
St.Rep. 548; Strong v. Insurance Co., 10 Pick.
(Mass.) 43, 20 Am.Dec. 507; Insurance Co. v.
Winsmore, 124 Pa. 61, 16 A. 516. Such an interest
as will make the loss of the property of pecuniary
damage to the insured; a right, benefit, or advan-
tage arising out of the property or dependent
thereon, or any liability in respect thereof, or any
relation thereto or concern therein, of such a na-
ture that it might be so affected by the contemplat-
ed peril as to directly damnify the insured. 2
Joyce, Ins. §§ 887, 888. German Ins. Co. v. Hyman,
34 Neb. 704, 52 N.W. 401, 402. Tischendorf v.
Lynn Mut. Fire Ins. Co., 190 Wis. 33, 208 N.W.
917, 919, 45 A.L.R. 856; Liverpool & London &
Globe Ins. Co. v. Bolling, 176 Va. 182, 10 S.E.2d
518, 521.
Every interest in property, or any relation thereto, or
liability in respect thereof, of such a nature that a con-
templated peril might directly damnify the insured, is an
insurable interest.
In the case of life insurance, a reasonable expec-
tation of pecuniary benefit from the continued life
of another; also, a reasonable ground, founded
upon the relation of the parties to each other,
either pecuniary or of blood or affinity, to expect
some benefit or advantage from the continuance of
the life of the assured. Insurance Co. v. Schaefer,
94 U.S. 460, 24 L.Ed. 251; National Life & Acci-
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INSURANCE
dent Ins. Co. v. Ball, 157 Miss. 163, 127 So. 268;
Colgrove v. Lowe, 343 Ill. 360, 175 N.E. 569, 572.
Essential thing being that policy be obtained in
good faith, not for purpose of speculating on haz-
ard of life in which insured has no interest. Alex-
ander v. Griffith Brokerage Co., 228 Mo.App. 773,
73 S.W.2d 418, 423.
INSURANCE. A contract whereby, for a stipu-
lated consideration, one party undertakes to com-
pensate the other for loss on a specified subject by
specified perils. The party agreeing to make the
compensation is usually called the "insurer" or
"underwriter;" the other, the "insured" or "as-
sured;" the agreed consideration, the "premium;"
the written contract, a "policy;" the events in-
sured against, "risks" or "perils;" and the subject,
right, or interest to be protected, the "insurable in-
terest." 1 Phil.Ins. §§ 1-5. A contract whereby
one undertakes to indemnify another against loss,
damage, or liability arising from an unknown or
contingent event and is applicable only to some
contingency or act to occur in future. Com. v.
Provident Bicycle Ass'n, 178 Pa. 636, 36 A. 197, 36
L.R.A. 589; Commonwealth v. Metropolitan Life
Ins. Co., 254 Pa. 510 98 A. 1072, 1073; and is ap-
plicable only to some contingency or act to occur
in future. Clardy v. Grand Lodge of Oklahoma,
A. 0. U. W., 132 Okl. 165, 269 P. 1065, 1066. For
"Family," see that title.
An agreement by which one party for a consideration
promises to pay money or its equivalent or to do an act
valuable to other party upon destruction, loss, or injury of
something in which other party has an interest. Commis-
sioner of Banking and Insurance v. Community Health
Service, 129 N.J.L. 427, 30 A.2d 44, 46.
Classification
Accident insurance is that form of insurance
which undertakes to indemnify the assured against
expense, loss of time, and suffering resulting from
accidents causing him physical injury, usually by
payment at a fixed rate per week while the con-
sequent disability lasts, and sometimes including
the payment of a fixed sum to his heirs in case of
his death by accident within the term of the poli-
cy. Employers' Liability Assur. Corp. v. Merrill,
155 Mass. 404, 29 N.E. 529.
Automobile insurance may embrace insurance
against loss of or damage to a motor vehicle
caused by fire, windstorm, theft, collision, or oth-
er insurable hazards, and also against legal lia-
bility for personal injuries or damage to property
resulting from operation of the vehicle. 44 C.J.S.
p. 492; Blashfield, Cyc. of Automobile Law and
Prac., Perm. Ed., § 3461.
Burglary insurance. Insurance against loss of
property by the depredations of burglars and
thieves.
Casualty insurance. This term is generally used
as equivalent to "accident" insurance. State v.
Federal Inv. Co., 48 Minn. 110, 50 N.W. 1028. But
in some states it means insurance against acci-
dental injuries to property, as distinguished from
accidents resulting in bodily injury or death, Em-
ployers' Liability Assur. Corp. v. Merrill, 155 Mass.
404, 29 N.E. 529.
Commercial insurance is a term applied to in-
demnity agreements, in the form of insurance
bonds or policies, whereby parties to commercial
contracts are to a designated extent guarantied
against loss by reason of a breach of contractual
obligations on the part of the other contracting
party; to this class belong policies of contract
credit and title insurance. Cowles v. Guaranty
Co., 32 Wash. 120, 72 Pac. 1032, 98 Am.St.Rep.
838.
Employers' insurance. Employers' insurance
policies are of two sorts, the "liability" contract,
which obligates the insurer to pay the loss without
first requiring that the assured do so, and the
"indemnity" contract, which obligates the insurer
to reimburse only after the employer has paid the
debt to the injured employee. Davies v. Maryland
Casualty Co., 89 Wash. 571, 154 P. 1116, 1117,
L.R.A.1916D, 395, 398.
Employer's liability insurance. In this form of
insurance the risk insured against is the liability
of the assured to make compensation or pay dam-
ages for an accident, injury, or death occurring to
a servant or other employee in the course of his
employment, either at common law or under stat-
utes imposing such liability on employers.
Fidelity insurance is that form of insurance in
which the insurer undertakes to guaranty the fidel-
ity of an officer, agent, or employee of the assured,
or rather to indemnify the latter for losses caused
by dishonesty or a want of fidelity on the part of
such a person. People v. Rose, 174 Ill. 310, 51 N.E.
246, 44 L.R.A. 124.
Fire insurance. A contract of J insurance by
which the underwriter, in consideration of the
premium, undertakes to indemnify the insured
against all losses in his houses, buildings, furni-
ture, ships in port, or merchandise, \by means of
accidental fire happening within a prescribed peri-
od. 3 Kent, Comm. 370; Mutual L. Ins. Co. v.
Allen, 138 Mass. 27, 52 Am.Rep. 245; ) Durham v.
Fire & Marine Ins. Co., C.C.Or., 22 F. 470.
Fraternal insurance. The form of life or acci-
dent insurance furnished by a fraternal beneficial
association, consisting in the undertaking to pay
to a member, or his heirs in case of death, a stip-
ulated sum of money, out of funds raised for that
purpose by the payment of dues or assessments
by all the members of the association.
Guaranty or fidelity insurance is a contract
whereby one, for a consideration, agrees to indem-
nify another against loss arising from the want of
integrity or fidelity of employees and persons hold-
ing positions of trust, or embezzlements by them,
or against the insolvency of debtors, losses in
trade, loss by non-payment of notes, or against
breaches of contract. People v. Rose, 174 Ill. 310,
51 N.E. 246, 44 L.R.A. 124; Cowles v. United States
Fidelity & Guaranty Co., 32 Wash. 120, 72 P. 1032.
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Indemnity insurance. This term has come to
have a well defined and recognized meaning in
insurance parlance, and is applied to contracts
which provide indemnity against loss, and not the
contracts which provide for indemnity against lia-
bility. The latter are known as liability contracts
or policies, and the former as indemnity contracts
or policies. 44 C.J.S. pp. 480, 482. As applied to
motor vehicles, the distinctions between the two
types of policies are discussed in Blashfield, Cyc. of
Automobile Law and Prac., Perm. Ed., §§ 4011-
4015.
Industrial insurance. Small policies issued in
consideration of weekly premium payments. Life
& Casualty Ins. Co. v. King, 137 Tenn. 685, 195
S.W. 585, 588.
Liability insurance is that form of insurance
which indemnifies against liability on account of
injuries to the person or property of another. It
is distinguished from "indemnity insurance" (see
that title, supra), and may be issued to cover the
liability of, for example, carriers, contractors, em-
ployers, landlords, manufacturers, owners, and
railroads. Liability insurance may extend to au-
tomobiles, elevators, fly wheels, libel, theaters, and
vessels. 44 C.J.S. p. 481.
Life insurance. That kind of insurance in which
the risk contemplated is the death of a particular
person; upon which event (if it occurs within a
prescribed term, or, according to the contract,
whenever it occurs) the insurer engages to pay
a stipulated sum to the legal representatives of
such person, or to a third person having an in-
surable interest in the life of such person.
Straight life insurance or whole life insurance is insur-
ance for which premiums are collected so long as the
insured may live, whereas, term insurance is insurance
which promises payment only within a stipulated number
of years. Doty v. American Nat. Ins. Co., 350 Mo. 192, 165
S.W.2d 862, 869, 143 A.L.R. 1062.
Live-stock insurance. Insurance upon the lives,
health, and good condition of domestic animals of
the useful kinds, such as horses and cows.
Marine insurance. A contract whereby, for a
consideration stipulated to be paid by one inter-
ested in a ship, freight, or cargo, subject to the
risks of marine navigation, another undertakes to
indemnify him against some or all of those risks
during a certain period or voyage. 1 Phil.Ins. 1.
A contract whereby one party, for a stipulated pre-
mium, undertakes to indemnify the other against
certain perils or sea-risks to which his ship,
freight, and cargo, or some of them, may be ex-
posed during a certain voyage, or a fixed period of
time. An insurance against risks connected with
navigation, to which a ship, cargo, freightage,
profits, or other insurable interest in movable prop-
erty may be exposed during a certain voyage or a
fixed period of time. Civ.Code Cal. § 2655.
Motor vehicle insurance. See Automobile in-
surance, supra.
Old line life insurance. Insurance on a level or
fiat rate plan where, for a fixed premium payable
without condition at stated intervals, a certain
sum is to be paid upon death without condition.
Mattero v. Central Life Ins. Co., 202 Mo.App. 293,
215 S.W. 750, 751.
Plate-glass insurance. Insurance against loss
from the accidental breaking of plate-glass in win-
dows, doors, show-cases, etc.
Steam boiler insurance. Insurance against the
destruction of steam boilers by their explosion,
sometimes including indemnity against injuries to
other property resulting from such explosion.
Title insurance. Insurance against loss or dam-
age resulting from defects or failure of title to a
particular parcel of realty, or from the enforce-
ment of liens existing against it at the time of the
insurance. This form of insurance is taken out by
a purchaser of the property or one loaning money
on mortgage, and is furnished by companies spe-
cially organized for the purpose, and which keep
complete sets of abstracts or duplicates of the rec-
ords, employ expert title-examiners, and prepare
conveyances and transfers of all sorts. A "certifi-
cate of title" furnished by such a company is mere-
ly the formally expressed professional opinion of
the company's examiner that the title is complete
and perfect (or otherwise, as stated), and the
company is liable only for a want of care, skill, or
diligence on the part of its examiner; whereas an
"insurance of title" warrants the validity of the ti-
tle in any and all events. It is not always easy
to distinguish between such insurance and a "guar-
anty of title" given by such a company, except that
in the former case the maximum limit of liability
is fixed by the policy, while In the latter case the
undertaking is to make good any and all loss re-
sulting from defect or failure of the title.
Tornado insurance. Insurance against injuries
to crops, timber, houses, farm buildings, and other
property from the effects of tornadoes, hurricanes,
and cyclones.
Other Compound and Descriptive Terms
Additional insurance. To constitute prohibited
"additional insurance" both policies must be on
same subject-matter and on same interest therein.
Clower v. Fidelity-Phenix Fire Ins. Co. of New
York, 220 Mo.App. 1112, 296 S.W. 257, 260; Hurst
Home Ins. Co. v. Deatley, 175 Ky. 728, 194 S.W.
910, 911, L.R.A.1917E, 750.
Assessment life insurance policy. A contract by
which payments to insured are not unalterably
fixed, but dependent on collection of assessments
necessary to pay amounts insured, while an "old-
line policy" unalterably fixes premiums and defi-
nitely and unchangeably fixes insurer's liability.
Clark v. Metropolitan Life Ins. Co., 126 Me. 7, 135
A. 357, 358.
Comprehensive coverage. A simple and con-
venient form of indemnity now commonly avail-
able in contracts of automobile insurance. It in-
cludes not only the conventional coverages against
loss caused by fire, theft, wind, water, or malicious
mischief, but is generally designed to protect
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INSURANCE
against all damage to the insured vehicle except by
collision or upset. Blashfield, Cyc. of Automobile
Law and Prac., Perm. Ed., § 3653. Among losses
commonly incurred and paid under comprehensive
policies are those caused by lighted cigarettes.
Other examples of such losses include scratching
of the finish by matches, thorns, or dust storms;
damage to the upholstery caused by a child's loss
of control of the urinary function, and by the
clawing or chewing of the upholstery by a pet
dog; and damage to the fenders resulting when a
goat mistook them for hors d'oeuvres. Appleman,
Ins. Law and Prac., § 3222.
Concurrent insurance. That which to any extent
insures the same interest against the same casual-
ty, at the same time, as the primary insurance, on
such terms that the insurers would bear propor-
tionately the loss happening within the provisions
of both policies. Rubber Co. v. Assur. Co., 64 N.J.
L. 580, 46 A. 777; Connecticut Fire Ins. Co. v.
Union Mercantile Co., 161 Ky. 718, 171 S.W. 407,
409; Camden Fire Ins. Ass'n v. Sutherland, Tex.
Civ.App., 278 S.W. 907, 914.
Double insurance. See Double.
Excess insurance. See Excess Insurance.
General and special insurance. In marine in-
surance a general insurance is effected when the
perils insured against are such as the law would
imply from the nature of the contract considered
in itself and supposing none to be specified in the
policy; in the case of special insurance, further
perils (in addition to implied perils) are expressed
in the policy. Vandenheuvel v. United Ins. Co., 2
Johns.Cas. (N.Y.) 127.
Loss. See Loss.
Insurance adjuster. One undertaking to ascer-
tain and report the actual loss to the subject-mat-
ter of insurance due to the peril insured against.
Laws Wash.1911, p. 163, § 2; Jensen v. Lincoln
Hail Ins. Co., 125 Neb. 87, 249 N.W. 94.
Insurance agent. Person authorized to represent
insurer in dealing with third parties in matters re-
lating to insurance. American Casualty Co. of
Reading, Pa., v. Ricas, 179 Md. 627, 22 A.2d 484, 487.
An agent employed by an insurance company to
solicit risks and effect insurances. Agents of in-
surance companies are called "general agents"
when clothed with the general oversight of the
companies' business in a state or large section of
country, and "local agents" when their functions
are limited and confined to some particular locali-
ty. McKinney v. Alton, 41 Ill.App. 512; State v.
Accident Ass'n, 67 Wis. 624, 31 N.W. 229. See,
also, Insurance broker, infra.
Insurance broker. One who acts as middleman
between insured and company, and who solicits in-
surance from public under no employment from
any special company and places order of insur-
ance with company selected by insurer or, in ab-
sence of any selection, with company selected by
such broker. Broker is agent for insured though
at same time for some purposes he may be agent
for insurer, and his acts and representations with-
in scope of his authority as such agent are binding
on insured. Pacific Fire Ins. Co. v. Bowers, 163
Va. 349, 175 S.E. 763.
An "insurance agent" is tied to his company, whereas an
"insurance broker" is an independent middleman not tied
to a particular company. Osborn v. Ozlin, Va., 310 U.S. 53,
60 S.Ct. 758, 761, 84 L.Ed. 1074.
Insurance commissioner. A public officer in sev-
eral of the states, whose duty is to supervise the
business of insurance as conducted in the state by
foreign and domestic companies, for the protection
and benefit of policy-holders, and especially to issue
licenses, make periodical examinations into the
condition of such companies, or receive, file, and
publish periodical statements of their business as
furnished by them.
Insurance company. A corporation or associa-
tion whose business is to make contracts of insur-
ance. They are either mutual companies or stock
companies. A "mutual" insurance company is
one whose fund for the payment of losses consists
not of capital subscribed or furnished by outside
parties, but of premiums mutually contributed by
the parties insured, or in other words, one in which
all persons insured become members of the as-
sociation and contribute either cash or assessable
premium notes, or both, to a common fund, out of
which each is entitled to indemnity in case of loss.
Mygatt v. Insurance Co., 21 N.Y. 65; Insurance Co.
v. Hoge, 21 How. 35, 16 L.Ed. 61; Given v. Rettew,
162 Pa. 638, 29 A. 703. A "stock" company is one
organized according to the usual form of business
corporations, having a capital stock divided into
shares, which, with current income and accumu-
lated surplus, constitutes the fund for the payment
of losses, policy-holders paying fixed premiums and
not being members of the association unless they
also happen to be stockholders.
Insurance policy. See Policy.
Insurance premium. The consideration paid by
insured to insurer for insurance protection. Alyea-
Nichols Co. v. U. S., D.C.I11., 12 F.2d 998, 1005. See
Premium.
Insurance trust. An agreement between in-
sured and trustee, whereby proceeds of policy are
paid directly to trustee for investment and dis-
tribution to designated beneficiaries in manner and
at such time as insured has directed in trust
agreement. In re Reynolds' Estate, 131 Neb. 557,
268 N.W. 480, 486, 487.
Interinsurance is insurance system whereby sev-
eral individuals, partnerships, or corporations,
through common attorney in fact, underwrite one
another's risks against loss under agreement that
underwriters act separately and severally. Wy-
song v. Automobile Underwriters, 204 Ind. 493, 184
N.E. 783, 785, 94 A.L.R. 826; Hoopeston Canning
Co. v. Cullen, 63 S.Ct. 602, 604, 318 U.S. 313, 87
L.Ed. 777, 145 A.L.R. 1113.
It is distinguishable from all other forms of
insurance, in that every insured is interinsurer,
and every insurer is insured. Underwriters' Ex-
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INSURANCE
change v. Indianapolis St. Ry. Co., 204 Ind. 676,
185 N.E. 504, 506.
Mutual insurance. That form of insurance pro-
vided by mutual companies. An essential char-
acteristic of a mutual insurance company is col-
lective and entire ownership and control by its
members, all of whom must be policyholders. A
mutual company may collect cash premiums from
members in advance or it may assess members to
pay losses and overhead. An insurance company
can be mutual even though policyholders are not
subject to assessment. To be a mutual insurance
company, it is also essential that the company
provide insurance to its members substantially at
cost. Ohio Farmers indemnity Co. v. Commission-
er of Internal Revenue, 108 F.2d 665; Union Ins.
Co. v. Hoge, 62 U.S. 35, 16 L.Ed. 61; Mutual Fire
Ins. Co. of Germantown v. United States, 142 F.2d
344.
Over-insurance. Insurance effected upon prop-
erty, either in one or several companies, to an
amount which, separately or in the aggregate,
exceeds the actual value of the property.
Reinsurance. Insurance of an insurer; a con-
tract by which an insurer procures a third person
(usually another insurance company) to insure
him against loss or liability by reason of the orig-
inal insurance.. Civ.Code Cal. § 2646; Insurance
Co. v. Insurance Co., 38 Ohio St. 15, 43 Am.Rep.
413.
Specific insurance. That provided by a policy
under the terms of which the insurance in the
event of loss is to be distributed among the sev-
eral items of property, a specific amount to each
item. Wilson & Co. v. Hartford Fire Ins. Co., 300
Mo. 1, 254 S.W. 266, 282.
Term insurance. Insurance for a fixed time.
Gilley v. Missouri State Life Ins. Co., 116 Tex.
43, 285 S.W. 807. Insurance covering only losses
occurring before expiration of stated term. ;Etna
Casualty & Surety Co. v. Commercial State Bank
of Rantoul, D.c.m., 13 F.2d 474, 476.
INSURE. To make sure or secure, to guarantee,
as, to insure safety to any one. State v. Mutual
Mortuary Ass'n, 166 Tenn. 260, 61 S.W.2d 664. To
engage to indemnify a person against pecuniary
loss from specified perils. To act as an insurer.
U. S. Fidelity & Guaranty Co. v. Williams, 148
Md. 289, 129 A. 660, 664.
INSURED. The person who obtains insurance on
his property, or upon whose life an insurance is
effected. Kierce v. Lumbermen's Ins. Co. of Phila-
delphia, 162 Minn. 277, 202 N.W. 730, 731; Healy
v. Prudential Ins. Co. of America, Sup., 140 N.Y.S.
505, 506; Thompson v. Northwestern Mut. Life
Ins. Co., 161 Iowa 446, 143 N.W. 518.
INSURER. The underwriter or insurance compa-
ny with whom a contract of insurance is made.
INSURGENT. One who participates in an insur-
rection; one who opposes the execution of law by
force of arms, or who rises in revolt against the
constituted authorities. Hearon v. Calus, 178 S.C.
381, 183 S.E. 13. 20.
A distinction is often taken between "insurgent" and
"rebel," in this : that the former term is not necessarily to
be taken in a bad sense, inasmuch as an insurrection,
though extralegal, may be just and timely in itself ; as
where it is undertaken for the overthrow of tyranny or the
reform of gross abuses.
INSURRECTION. A rebellion, or rising of citi-
zens or subjects in resistance to their government
See Insurgent.
Insurrection shall consist in any combined resistance to
the lawful authority of the state, with intent to the denial
thereof, when the same is manifested, or intended to be
manifested, by acts of violence. Allegheny County v. Gib-
son, 90 Pa. 417, 35 Am. Rep. 670 ,
INTAKERS. In old English law. A kind of
thieves inhabiting Redesdale, on the extreme
northern border of England; so called because
they took in or received such booties of cattle and
other things as their accomplices, who were called
"out-parters," brought in to them from the bord-
ers of Scotland. Spelman; Cowell.
INTAKES. Temporary inclosures made by cus-
tomary tenants of a manor under a special cus-
tom authorizing them to inclose part of the waste
until one or more crops have been raised on it.
Elton, Common, 277.
INTANGIBLE ASSET. Such values as accrue to
a going business as good will, trademarks, copy-
rights, franchises, or the like. It exists only in
connection with something else, as the good will
of a business. In re Armour's Estate, 94 A. 284,
294, 11 N.J. 257.
INTANGIBLE PROPERTY. Used chiefly in the
law of taxation, this term means such property as
has no intrinsic and marketable value, but is mere-
ly the representative or evidence of value, such
as certificates of stock, bonds, promissory notes,
and franchises. Western Union Tel. Co. v. Nor-
man, C.C.Ky., 77 F. 26; In re Hanson's Estate,
195 N.Y.S. 255, 119 Mich. 100; City of Richmond
v. Drewry-Hughes Co., 122ya.- 178, 90 S.E. 635.
INTEGER. Lat. Whole; untouched. Res Integra
means a question which is new and undecided. 2
Kent, Comm. 177.
INTEGRATED. An agreement is integrated
where the parties thereto adopt the ,yffiting or
writings as the final and complete ., expression of
the agreement and an "integratiofOtis the writing
or writings so adopted. Wilson v. Viking Corpora-
tion, 134 Pa.Super. 153, 3 A.2d 180, 183.
INTEGRATED BAR. See Integration, infra.
INTEGRATION. The act or process of making
whole or entire. Webster.
The writing or writings adopted by the parties
to an agreement as the final and complete ex-
pression of the agreement. Restatement, Con-
tracts, § 228; Pettett v. Cooper, 62 Ohio App. 377,
24 N.E.2d 299, 302.
The act of organizing the bar of a state into
an association, membership in which is a condi-
tion precedent to the right to practice law. In-
tegration is accomplished by enactment of detailed
statutes, by enactment of a short statute con-
ferring authority upon the highest court of the
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INTENTIO
state to integrate the bar, or by rule of court in
the exercise of its inherent power. Integration
of Bar Case, 244 Wis. 8, 11 N.W.2d 604, 608, 151
A.L.R. 586, rehearing denied 244 Wis. 8, 12 N.W.
2d 699; In re Integration of State Bar of Okla-
homa, 185 Okl. 505, 95 P.2d 113.
Integrated Bar
"The integrated bar movement was initiated in this
country about 35 years ago [i. e., about 1914] by the
American Judicature Society and since that time at least
27 States have adopted it. None of them have returned
to the old system of voluntary organization, but all
commend the integrated bar highly. * * * When we
say the bar is integrated we mean that every lawyer with-
in a given area has membership in a cohesive organiza-
tion. An organization of less than all the members of the
bar in a given area would not be an integrated bar. The
area may be the state, the county, or the city. The
integrated bar has also been defined as the process by
which every member of the bar is given an opportunity to
do his part in performing the public service expected of
him, and by which each member is obliged to bear his
portion of the responsibility. * * * The integrated bar
of California has promulgated the best pattern for an in-
tegrated bar program to which our attention has been.
directed." Terrell, J., writing for a majority of the Su-
preme Court of Florida on the Petition of Florida State
Bar Ass'n (1949), 40 So.2d 902, 904.
INTEGRITY. As occasionally used in statutes pre-
scribing the qualifications of public officers, trus-
tees, etc., this term means soundness of moral
principle and character, as shown by one person
dealing with others in the making and perform-
ance of contracts, and fidelity and honesty in the
discharge of trusts; it is synonymous with "pro-
bity," "honesty," and "uprightness." In re Bau-
quier's Estate, 88 Cal. 302, 26 Pac. 178; In re Gor-
don's Estate, 142 Cal. 125, 75 Pac. 672.
INTELLIGIBILITY. In pleading. The statement
of matters of fact directly (excluding the necessity
of inference or argument to arrive at the mean-
ing) and in such appropriate terms, so arranged,
as to be comprehensible by a person of common
or ordinary understanding. Davis v. Trump, 43
W.Va. 191, 27 S.E. 397, 64 Am.St.Rep. 849.
INTEMPERANCE. Habitual intemperance is that
degree of intemperance from the use of intoxicat-
ing drinks which disqualifies the person a great
portion of the time from properly attending to
business, or which would reasonably inflict a
course of great mental anguish upon an innocent
party. Hope v. The Maccabees, 91 N.J.L. 148, 102
A. 689, 691, 1 A.L.R. 455; Andrews v. United States
Casualty Co., 154 Wis. 82, 142 N.W. 487, 490.
INTEND. To design, resolve, purpose. To apply
a rule of law in the nature of presumption; to
discern and follow the probabilities of like cases.
INTENDANT. One who has the charge, manage-
ment, or direction of some office, department, or
public business.
Used in the constitutional and statutory law of
some European governments to designate a prin-
cipal officer of state corresponding to the cabinet
ministers or secretaries of the various depart-
ments of the United States government, as, "in-
tendant of marine," "intendant of finance."
The term was also used in Alabama to designate
the chief executive officer of a city or town, hav-
ing practically the same duties and functions as
a mayor. Const. Ala. 1901, § 176; Intendant and
Council of Greensboro v. Mullins, 13 Ala. 341,
INTENDED TO BE RECORDED. This phrase is
frequently used in conveyances, when reciting
some other conveyance which has not yet been
recorded, but which forms a link in the chain of
title. In Pennsylvania, it has been construed to be
a covenant, on the part of the grantor, to procure
the deed to be recorded in a reasonable time.
Penn v. Preston, 2 Rawle (Pa.) 14.
INTENDED WIFE. Betrothed. Mace v. Grand
Lodge, A. 0. U. W. of Massachusetts, 234 Mass.
299, 125 N.E. 569.
INTENDENTE. In Spanish law. The immediate
agent of the minister of finance, or the chief and
principal director of the different branches of the
revenue, appointed in the various departments in
each of the provinces into which the Spanish
monarchy is divided. Escriche.
INTENDMENT OF LAW. The true meaning, the
correct understanding or intention of the law; a
presumption or inference made by the courts. Co.
Litt. 78.
Common intendment. The natural and usual.
sense; the common meaning or understanding;
the plain meaning of any writing as apparent on
its face without straining or distorting the con-
struction.
INTENT. Design, resolve, or determination with
which person acts. Witters v. United States, 106
F.2d 837, 840, 70 App.D.C. 316, 125 A.L.R. 1031;
being a state of mind, is rarely susceptible of
direct proof, but must ordinarily be inferred from
the facts. State v. Walker, 109 W.Va. 351, 154 S.
E. 866, 867. It presupposes knowledge. Reinhard
v. Lawrence Warehouse Co., 41 Cal.App.2d 741, 107
P.2d 501, 504.
"Intent" and "motive" are not in law one and the same
thing. State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 260,
122 A.L.R. 417. "Intent" in legal sense is purpose to use
particular means to effect certain result; whereas, "mo-
tive" is reason which leads minds to desire that result.
United Fidelity Life Ins. Co. v. Adair, Tex.Civ.App., 29
S.W.2d 940, 943.
"Intent" expresses mental action at its most advanced
point, or as it actually accompanies an outward, corporal
act which has been determined on. Intent shows the pres-
ence of will in the act which consummates a crime. It is
the exercise of intelligent will, the mind being fully aware
of the nature and consequences of the act which is about to
be done, and with such knowledge, and with full liberty of
action, willing and electing to do it. Burrill, Circ.Ev. 284,
and notes.
General intent. An intention, purpose, or design, either
without specific plan or particular object, or without refer-
ence to such plan or object.
Meaning; purpose; signification; intendment;
applied to words or language. See Certainty.
Common intent. The natural sense given to
words.
Estoppel. See Estoppel.
INTENTIO. Lat.
In the Civil law. The formal complaint or
claim of a plaintiff before the pr tetor.
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INTENTIO
In Old English law. A count or declaration in
a real action (narratio). Bract. lib. 4, tr. 2, c. 2;
Fleta, lib. 4, c. 7; Du Cange.
INTENTIO CZECA MALA. A blind or obscure
meaning is bad or ineffectual. 2 Bulst. 179. Said
of a testator's intention.
INTENTIO INSERVIRE DEBET LEGIBUS, NON
LEGES INTENTIONI. The intention [of a party]
ought to be subservient to [or in accordance with]
the laws, not the laws to the intention. Co. Litt.
314a, 314b.
INTENTIO MEA IMPONIT NOMEN OPERI MEO.
Hob. 123. My intent gives a name to my act.
INTENTION. Determination to act in a certain
way or to do a certain thing. State ex rel. Verbon
v. County of St. Louis, 216 Minn. 140, 12 N.W.2d
193, 196; In re McCafferty's Will, 254 N.Y.S. 789,
795, 142 Misc. 371. Meaning; will; purpose; de-
sign. 4 Kent, Comm. 534.
"Intention," when used with reference to the construc-
tion of wills and other documents, means the sense and
meaning of it, as gathered from the words used therein.
Parol evidence is not ordinarily admissible to explain this.
When used with reference to civil and criminal responsi-
bility, a person who contemplates any result, as not
unlikely to follow from a deliberate act of his own, may be
said to intend that result, whether he desire it or not.
Thus, if a man should, for a wager, discharge a gun among
a multitude of people, and any should be killed, he would
be deemed guilty of intending the death of such person;
for every man is presumed to intend the natural conse-
quence of his own actions. Intention is often confounded
with motive, as when we speak of a man's "good inten-
tions." Mozley & Whitley.
INTENTIONAL. Willful. Jackson v. Edwards,
144 Fla. 187, 197 So. 833, 835.
INTENTIONE. A writ that lay against him who
entered into lands after the death of a tenant in
dower, or for life, etc., and held out to him in re-
version or remainder. Fitzh. Nat. Brev. 203.
INTER. Lat. Among; between.
INTER ALIA. Among other things. A term an-
ciently used in pleading, especially in reciting stat-
utes, where the whole statute was not set forth at
length. Inter alia enactatum fuit, among other
things it was enacted. Plowd. 65.
INTER ALIAS CAUSAS ACQUISITIONIS, MAG-
NA, CELEBRIS, ET FAMOSA EST CAUSA DO-
NATION'S. Among other methods of acquiring
property, a great, much-used, and celebrated me-
thod is that of gift. Bract. fol. 11.
INTER ALIOS. Between other persons; between
those who are strangers to a matter in question.
INTER ALIOS RES GESTAS ALIIS NON POSSE
PRIEJUDICIUM FACERE SIEPE CONSTITU-
TUM EST. It has been often settled that things
which took place between other parties cannot
prejudice. Code 7, 60, 1, 2.
INTER ARMA SILENT LEGES. In time of war
the laws are silent. Cicero, pro Milone. It applies
as between the state and its external enemies;
and also in cases of civil disturbance where extra-
judicial force may supersede the ordinary process
of law. Salmond, Jurispr. 641.
INTER BRACHIA. Between her arms. Fleta, lib.
1, c. 35, §§ 1, 2. See infra, Brachia.
INTER CIETEROS. Among others; in a general
clause; not by name (nominatim). A term ap-
plied in the civil law to clauses of disinheritance
in a will. Inst. 2, 13, 1; Id. 2, 13, 3.
INTER CANEM ET LUPUM. (Lat. Between
the dog and the wolf.) The twilight; because
then the dog seeks his rest, and the wolf his prey.
3 Inst. 63.
INTER CONJUGES. Between husband and wife.
INTER CONJUNCTAS PERSONAS. Between
conjunct persons. By the act 1621, c. 18, all con-
veyances or alienations between conjunct persons,
unless granted for onerous causes, are declared,
as in a question with creditors, to be null and of
no avail. Conjunct persons are those standing in
a certain degree of relationship to each other;
such, for example, as brothers, sisters, sons,
uncles, etc. These were formerly excluded as
witnesses, on account of their relationship; but
this, as a ground of exclusion, has been abolished.
Tray. Lat. Max.
INTER FAUCES TERRIE. (Between the jaws
of the land.) A term used to describe a roadstead
or arm of the sea enclosed between promontories
or projecting headlands.
INTER PARES. Between peers; between those
who stand on a level or equality, as respects dili-
gence, opportunity, responsibility, etc.
INTER PARTES. Between parties. Instruments
in which two persons unite, each making convey-
ance to, or engagement with, the other, are called
"papers inter partes." Smith v. Emery, 12 N.J.
Law, 60.
Judgment Inter Partes
See Judgment in Personam.
INTER QUATUOR PARIETES. Between four
walls. Fleta, lib. 6, c. 55, § 4.
INTER REGALIA. In English law. Among the
things belonging to the sovereign. Among these
are rights of salmon fishing, mines of gold and
silver, forests, forfeitures, casualties of superior-
ity, etc., which are called "regalia minora," and
may be conveyed to a subject. The regalia ma-
jora include the several branches of the royal
prerogative, which are inseparable from the per-
son of the sovereign. Tray. Lat. Max.
INTER RUSTICOS. Among the illiterate or un-
learned.
INTER APICES JURIS. Among the subtleties of
the law. See Apex Juris.
INTER SE, INTER SESE. Among themselves.
Story, Partn. § 405.
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INTERDICTUM
INTER VIRUM ET UXOREM. Between husband
and wife.
INTER VIVOS. Between the living; from one
living person to another. Where property passes
by conveyance, the transaction is said to be inter
vivos, to distinguish it from a case of succession
or devise. So an ordinary gift from one person to
another is called a "gift inter vivos," to distin-
guish it from a donation made in contemplation
of death, ( mortis causa.)
INTERCALARE. Lat. In the civil law. To in-
troduce or insert among or between others; to
introduce a day or month into the calendar; to
intercalate. Dig. 50, 16, 98, pr.
INTERCEDERE. Lat. In the civil law. To be-
come bound for another's debt.
INTERCEPTION. Within Federal Communica-
tions Act, prohibiting interception of communica-
tion by wire or radio, indicates taking or seizure
by the way or before arrival at destined place,
and does not ordinarily connote obtaining of what
is to be sent before, or at the moment, it leaves
the possession of the proposed sender, or after,
or at the moment, it comes into possession of in-
tended receiver. Communications Act of 1934, §
605, 47 U.S.C.A. § 605; Goldman v. United States,
N.Y., 62 S.Ct. 993, 995, 316 U.S. 129, 86 L.Ed. 1322.
INTERCHANGEABLY. By way of exchange or
interchange. This term properly denotes the
method of signing deeds, leases, contracts, etc.,
executed in duplicate, where each party signs
the copy which he delivers to the other. Roose-
velt v. Smith, 40 N.Y.S. 381, 17 Misc.Rep. 323.
INTERCOMMON. To enjoy a common mutually
or promiscuously with the inhabitants or tenants
of a contiguous township, vill, or manor. 2 Bl.
Comm. 33; 1 Crabb, Real Prop. p. 271, § 290.
INTERCOMMUNING. Letters of intercommun-
ing were letters from the Scotch privy council
passing (on their act) in the king's name, charg-
ing the lieges not to reset, supply, or intercom-
mune with the persons thereby denounced; or to
furnish them with meat, drink, house, harbor, or
any other things useful or comfortable; or to
have any intercourse with them whatever,—under
pain of being reputed art and part in their crimes,
and dealt with accordingly; and desiring all sher-
iffs, bailies, etc., to apprehend and commit such
rebels to prison. Bell.
INTERCOURSE. Communication; literally, a
running or passing between persons or places;
commerce. As applied to two persons, the word
standing alone, and without a descriptive or qual-
ifying word, does not import sexual connection.
People v. Howard, 143 Cal. 316, 76 P. 1116.
INTERDICT. In Roman law. A decree of the
praetor by means of which, in certain cases de-
termined by the edict, he himself directly com-
manded what should be done or omitted, partic-
ularly in causes involving the right of possession
or a quasi possession. In the modern civil law,
interdicts are regarded precisely the same as ac-
tions, though they give rise to a summary pro-
ceeding. Mackeld. Rom. Law, § 258.
Interdicts are either prohibitory, restorative, or
exhibitory; the first being a prohibition, the sec-
ond a decree for restoring possession lost by force,
the third a decree for the exhibiting of accounts,
etc. Heinec. § 1206.
An interdict was distinguished from an "action," (actio,)
properly so called, by the circumstance that the praetor
himself decided in the first instance, (principaliter,) on the
application of the plaintiff, without previously appointing a
judex, by issuing a decree commanding what should be
done, or left undone. Gaius, 4, 139. It might be adopted
as a remedy in various cases where a regular action could
not be maintained, and hence interdicts were at one time
more extensively used than were the actiones themselves.
Afterwards, however, they fell into disuse, and in the
time of Justinian were generally dispensed with. Mackeld.
Rom. Law, § 258; Inst. 4, 15, 8.
In Ecclesiastical law. An ecclesiastical censure,
by which divine services are prohibited to be ad-
ministered either to particular persons or in par-
ticular places.
In Scotch law. An order of the court of session
or of an inferior court, pronounced on cause
shown, for stopping any act or proceedings com-
plained of as illegal or wrongful. It may be re-
sorted to as a remedy against any encroachment
either on property or possession, and is a protec-
tion against any unlawful proceeding. Bell.
INTERDICTION. In French law. Every person
who, on account of insanity, has become incapable
of controlling his own interests, can be put under
the control of a guardian, who shall administer
his affairs with the same effect as he might him-
self. Such a person is said to be "interdit," and
his status is described as "interdiction." Arg. Fr.
Merc. Law, 562.
In the Civil law. A judicial decree, by which a
person is deprived of the exercise of his civil
rights.
In French-Canadian law. A proceeding institut-
ed for the purpose of obtaining a curator of the
person and property, and includes the calling of
a family council and a petition to the court or its
prothonotary, followed by a hearing. In re Meth-
ot's Will, 98 A. 839, 840, 87 N.J.Eq. 256.
In International law. An "interdiction of com-
mercial intercourse" between two countries is a
governmental prohibition of commercial inter-
course, intended to bring about an entire cessa-
tion for the time being of all trade whatever. The
Edward, 1 Wheat. 272, 4 L.Ed. 86.
INTERDICTION OF FIRE AND WATER. Ban-
ishment by an order that no man should supply
the person banished with fire or water, the two
necessaries of life.
INTERDICTUM SALVIANUM. Lat. In Roman
law. The Salvian interdict. A process which /ay
for the owner of a farm to obtain possession of
the goods of his tenant who had pledged them to
him for the rent of the land. Inst. 4, 15, 3.
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INTERDUM
INTERDUM EVENIT UT EXCEPTIO QUIE
PRIMA FACIE JUSTA VIDETUR, TAMEN IN-
IQUE NOCEAT. It sometimes happens that a
plea which seems prima facie just, nevertheless
is injurious and unequal. Inst. 4, 14, 1, 2.
INTERESSE, Lat. Interest. The interest of
money; also an interest in lands.
Interesse termini. An interest in a term. That
species of interest or property which a lessee for
years acquires in the lands demised to him, before
he has actually become possessed of those lands;
as distinguished from that property or interest
vested in him by the demise, and also reduced into
possession by an actual entry upon the lands and
the assumption of ownership therein, and which
is then termed an "estate for years." Brown.
Pro interesse suo. For his own interest; ac-
cording to, or to the extent of, his individual in-
terest. Used (in practice) to describe the inter-
vention of a party who comes into a suit for the
purpose of protecting interests of his own which
may be involved in the dispute between the prin-
cipal parties or which may be affected by the
settlement of their contention.
INTEREST.
Property
The most general term that can be employed to
denote a property in lands or chattels. In its ap-
plication to lands or things real, it is frequently
used in connection with the terms "estate,"
"right," and "title," and, according to Lord Coke,
it properly includes them all. Co. Litt. 345b.
State v. McKellop, 40 Mo. 185; Loventhal v. Home
Ins. Co., 20 So. 419, 112 Ala. 116, 33 L.R.A. 258, 57
Am.St.Rep. 17.
More particularly it means a right to have the
advantage accruing from anything; any right in
the nature of property, but less than title; a par-
tial or undivided right; a title to a share.
The terms "interest" and "title" are not synonymous. A
mortgagor in possession, and a purchaser holding under a
deed defectively executed, have, both of them, absolute as
well as insurable interests in the property, though neither
of them has the legal title. Hough v. City F. Ins. Co., 29
Conn. 20, 76 Am.Dec. 581.
Absolute or conditional. That is an absolute in-
terest in property which is so completely vested
in the individual that he can by no contingency be
deprived of it without his own consent. So, too,
he is the owner of such absolute interest who
must necessarily sustain the loss if the property
is destroyed. The terms "interest" and "title" are
not synonymous. A mortgagor in possession, and
a purchaser holding under a deed defectively exe-
cuted, have, both of them, absolute, as well as in-
surable, interests in the property, though neither
of them has the legal title. "Absolute" is here
synonymous with "vested," and is used in contra-
distinction to contingent or conditional. Hough v.
City F. Ins. Co., 29 Conn. 10, 76 Am.Dec. 581;
Garver v. Hawkeye Ins. Co., 69 Iowa 202, 28 N. W.
555; Washington F. Ins. Co. v. Kelly, 32 Md. 421,
431, 3 Am.Rep. 149; Elliott v. Ashland Mut. F. Ins.
Co., 12 A. 676, 117 Pa. 548, 2 Am.St.Rep. 703.
Insurance
Interest or no interest. These words, inserted
in an insurance policy, mean that the question
whether the insured has or has not an insurable
interest in the subject-matter is waived, and the
policy is to be good irrespective of such interest.
The effect of such a clause is to make it a wager
policy.
Interest policy. One which actually, or prima
facie, covers a substantial and insurable interest;
as opposed to a wager policy.
English Law
Interest suit. An action in the probate branch
of the high court of justice, in which the question
in dispute is as to which party is entitled to a
grant of letters of administration of the estate
of a deceased person. Wharton.
General
Joint interest. One owned by several persons
in equal shares by a title created by a single will
or transfer, when expressly declared in the will or
transfer to be a joint tenancy, or when granted or
devised to executors or trustees as joint tenants.
Civ. Code Cal. § 683.
Law of Evidence
"Interest," in a statute that no witness shall be
excluded by interest in the event of the suit, means
"concern," "advantage," "good," "share," "por-
tion," "part," or "participation." Morgan v. John-
son, 87 Ga. 382, 13 S.E. 710.
A relation to the matter in controversy, or to the
issue of the suit, in the nature of a prospective
gain or loss, which actually does, or presumably
might, create a bias or prejudice in the mind, in-
clining the person to favor one side or the other.
For Money
Interest is the compensation allowed by law or
fixed by the parties for the use or forbearance or
detention of money. Beach v. Peabody, 188 Ill. 75,
58 N.E. 680, Shealy v. U. S., D.C.S.C., 37 F.2d 918,
919.
Conventional interest is interest at the rate
agreed upon and fixed by the parties themselves,
as distinguished from that which the law would
prescribe in the absence of an explicit agreement.
Fowler v. Smith, 2 Cal. 568; Vernon's Ann. Civ.
St. art. 5069.
Legal interest. See Legal Interest.
Simple interest is that which is paid for the
principal or sum lent, at a certain rate or allow-
ance, made by law or agreement of parties.
Compound interest is interest upon interest,
where accrued interest is added to the principal
sum, and the whole treated as a new principal, for
the calculation of the interest for the next period.
Ex-interest. In the language of stock exchang
es, a bond or other interest-bearing security is
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INTERLOCUTOR
said to be sold "ex-interest" when the vendor re-
serves to himself the interest already accrued and
payable (if any) or the interest accruing up to the
next interest day.
Interest, maritime. See Maritime Interest.
Interest upon interest. Compound interest.
INTEREST REIPUBLICIE NE MALEFICIA RE-
MANEANT IMPUNITA. It concerns the state
that crimes remain not unpunished. Jenk. Cent.
pp. 30, 31, case 59; Wing. Max. 501.
INTEREST REIPUBLICIE NE SUA QUIS MALE
UTATUR. It concerns the state that persons do
not misuse their property. 6 Coke, 36a.
INTEREST REIPUBLICIE QUOD HOMINES
CONSERVENTUR. It concerns the state that
[the lives of] men be preserved. 12 Coke, 62.
INTEREST REIPUBLICIE RES JUDICATAS
NON RESCIND!. It concerns the state that
things adjudicated be not rescinded. 2 Inst. 360.
It is matter of public concern that solemn adjudi-
cations of the courts should not be disturbed.
Best, Ev. p. 41, § 44.
INTEREST REIPUBLICIE SUPREMA HOMIN-
UM TESTAMENTA RATA HABERI. It concerns
the state that men's last wills be held valid, [or
allowed to stand.] Co. Litt. 236b.
INTEREST REIPUBLICIE UT CARCERES SINT
IN TUTO. It concerns the state that prisons be
safe places of confinement. 2 Inst. 589.
INTEREST (IMPRIMIS) REIPUBLICIE UT PAX
IN REGNO CONSERVETUR, ET QUIECUNQUE
PACI ADVERSENTUR PROVIDE DECLINEN-
TUE. It especially concerns the state that peace
be preserved in the kingdom, and that whatever
things are against peace be prudently avoided.
2 Inst. 158.
INTEREST REIPUBLICIE UT QUILIBET RE
SUA BENE UTATUR. It is the concern of the
state that every one uses his property properly.
INTEREST REIPUBLICIE UT SIT FINIS LIT-
IUM. It concerns the state that there be an end
of lawsuits. Co. Litt. 303. It is for the general
welfare that a period be put to litigation. Broom,
Max. 331, 343.
INTERFERE. To check; hamper; hinder; dis-
turb; intervene; intermeddle; interpose; to enter
into, or to take part in, the concerns of others.
State v. Estes, 185 N.C. 752, 117 S.E. 581, 582;
Conger v. Italian Vineyard Co., 186 Cal. 404, 199
P. 503. People ex rel. Benefit Ass'n of Railway
Employees v. Miner, 387 Ill. 393, 56 N.E.2d 353,
356.
INTERFERENCE. In patent law, this term des-
ignates a collision between rights claimed or grant-
ed; that is, where a person claims a patent for
the whole or any integral part of the ground al-
ready covered by an existing patent or by a pend-
ing application. Milton v. Kingsley, 7 App.D.C.
540; Dederick v. Fox, C.C.Pa., 56 F. 717; Nathan
Mfg. Co. v. Craig, C.C.Mass., 49 F. 370.
Strictly speaking, an "interference" is declared to exist
by the patent office whenever it is decided by the properly
constituted authority in that bureau that -two pending
applications (or a patent and a pending application), in
their claims or essence, cover the same discovery or inven-
tion, so as to render necessary an investigation into the
question of priority of invention between the two applica-
tions or the application and the patent, as the case may be.
Lowrey v. Cowles Electric Smelting, etc., Co., C.C.Ohio, 68
F. 372.
INTERIM. Lat. In the meantime; meanwhile.
An assignee ad interim is one appointed between
the time of bankruptcy and appointment of the
regular assignee. 2 Bell, Comm. 355.
INTERIM COMMITTITUR. "In the meantime,
let him be committed." An order of court (or the
docket-entry noting it) by which a prisoner is
committed to prison and directed to be kept there
until some further action can be taken, or until
the time arrives for the execution of his sentence.
INTERIM CURATOR. In English law. A person
appointed by justices of the peace to take care of
the property of a felon convict, until the appoint-
ment by the crown of an administrator or admin-
istrators for the same purpose. Mozley & White-
ley.
INTERIM FACTOR. In Scotch law. A judicial
officer elected or appointed under the bankruptcy
law to take charge of and preserve the estate
until a fit person shall be elected trustee. 2 Bell,
Comm. 357.
INTERIM OFFICER. One appointed to fill the
office during a temporary vacancy, or during an
interval caused by the absence or incapacity of
the regular incumbent.
INTERIM ORDER. One made in the meantime,
and until something is done.
INTERIM RECEIPT. A receipt for money paid
by way of premium for a contract of insurance
for which application is made. If the risk is re-
jected, the money is refunded, less the pro rata
premium.
INTERINSURANCE EXCHANGE. Reciprocal
exchange. See that title.
INTERLAQUEARE. In old practice. To link
together, or interchangeably. Writs were called
"interlaqueata" where several were issued against
several parties residing in different counties, each
party being summoned by a separate writ to war-
rant the tenant, together with the other warran-
tors. Fleta, lib. 5, c. 4, § 2.
INTERLINEATION. The act of writing between
the lines of an instrument; also what is written
between lines. Morris v. Vanderen, 1 Dall. 67, 1
L.Ed. 38; Russell v. Eubanks, 84 Mo. 88.
INTERLOCUTOR. In Scotch practice. An order
or decree of court; an order made in open court.
2 Swint. 362; Arkley, 32.
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INTERLOCUTOR
INTERLOCUTOR OF RELEVANCY. In Scotch
practice. A decree as to the relevancy of a libel
or indictment in a criminal case. 2 Alis. Crim.
Pr. 373.
INTERLOCUTORY. Provisional; temporary;
not final. Something intervening between the
commencement and the end of a suit which de-
cides some point or matter, but is not a final de-
cision of the whole controversy. Mora v. Sun Mut.
Ins. Co., 13 Abb. Prac. (N.Y.) 310.
As to interlocutory "Costs," "Decree," "Judg-
ment," "Order," and "Sentence," see those titles.
INTERLOPERS. Persons who run into business
to which they have no right, or who interfere
wrongfully; persons who enter a country or place
to trade without license. Webster.
INTERMARRIAGE. In the popular sense, this
term denotes the contracting of a marriage rela-
tion between two persons considered as members
of different nations, tribes, families, etc., as, be-
tween the sovereigns of two different countries,
between an American and an alien, between In-
dians of different tribes, between the scions of
different clans or families. But, in law, it is some-
times used (and with propriety) to emphasize the
mutuality of the marriage contract and as import-
ing a reciprocal engagement by which each of the
parties "marries" the other. Thus, in a pleading,
instead of averring that "the plaintiff was mar-
ried to the defendant," it would be proper to al-
lege that "the parties intermarried" at such a
time and place.
INTERMEDDLE. To interfere with property or
the conduct of business affairs officiously or with-
out right or title. In re Shinn's Estate, 166 Pa.
121, 30 A. 1026, 45 Am.St.Rep. 656. Not a technical
legal term, but sometimes used with reference to
the acts of an executor de son tort or a nego-
tiorum gestor in the civil law.
INTERMEDIARY. In modern civil law. A brok-
er; one who is employed to negotiate a matter
between two parties, and who for that reason is
considered as the mandatary (agent) of both. Civ.
Code La. art. 3016.
INTERMEDIATE. Intervening; interposed dur-
ing the progress of a suit, proceeding, business,
etc., or between its beginning and end.
INTERMEDIATE ACCOUNT. In probate law.
An account of an executor, administrator, or
guardian filed subsequent to his first or initial
account and before his final account. Specifically
in New York, an account filed with the surrogate
for the purpose of disclosing the acts of the per-
son accounting and the state or condition of the
fund in his hands, and not made the subject of a
judicial settlement. Code Civ.Proc. N.Y. 1899, §
2514, subd. 9 (Surrogate's Court Act, § 314, subd.
9).
INTERMEDIATE ORDER. An order made be-
tween the commencement of the action and its
final determination, incident to and during its
progress, which does not determine the cause but
only some intervening matter relating thereto;
one that is not directly appealable. Miami Copper
Co. v. Strohl, 14 Ariz. 410, 130 P. 605, 608. People
v. Priori, 163 N.Y. 99, 57 N.E. 85; Boyce v. Wa-
bash Ry. Co., 63 Iowa 70, 18 N.W. 673, 50 Am.Rep.
730; State v. O'Brien, 18 Mont. 1, 43 P. 1091;
Hymes v. Van Cleef, 61 Hun 618, 15 N.Y.S. 341.
INTERMEDIATE TOLL. Toll for travel on a
toll road, paid or to be collected from persons who
pass thereon at points between the toll gates,
such persons not passing by, through, or around
the toll gates. Hollingworth v. State, 29 Ohio St.
552.
INTERMITTENT EASEMENT. See Easement.
INTERMIXTURE OF GOODS. Confusion of
goods; the confusing or mingling together of
goods belonging to different owners in such a
way that the pebperty of neither owner can be
separately identified or extracted from the mass.
Smith v. Sanborn, 6 Gray (Mass.) 134. And see
Confusion of Goods.
INTERN. To restrict or shut up a person, as a
political prisoner, within a limited territory.
INTERNAL. Relating to the interior; comprised
within boundary lines; of interior concern or in-
terest; domestic, as opposed to foreign.
INTERNAL COMMERCE. See Commerce.
INTERNAL IMPROVEMENTS. With reference
to governmental policy and constitutional provi-
sions restricting taxation or the contracting of
public debts, this term means works of general
public utility or advantage, designed to promote
facility of intercommunication, trade, and com-
merce, the transportation of persons and prop-
erty, or the development of the natural resources
of the state, such as railroads, public highways,
turnpikes, and canals, bridges, the improvement
of rivers and harbors, systems of artificial irriga-
tion, and the improvement of water powers; but
it does not include the building and maintenance
of state institutions. State v. Froehlich, 115 Wis.
32, 91 N.W. 115, 58 L.R.A. 757, 95 Am.St.Rep. 894.
State v. Knapp, 99 Kan. 852, 163 P. 181, 182, L.R.A.
1917C, 1034; State v. Donald, 160 Wis. 21, 151
N.W. 331, 346.
INTERNAL POLICE. A term sometimes applied
to the police power, or power to enact laws in the
interest of the public safety, health, and morality,
which is inherent in the legislative authority of
each state, is to be exercised with reference only
to its domestic affairs and its own citizens, and is
not surrendered to the federal government. Che-
boygan Lumber Co. v. Delta Transp. Co., 100 Mich.
16, 58 N.W. 630.
INTERNAL REVENUE. In the legislation and
fiscal administration of the United States, reve-
nue raised by the imposition of taxes and excises
on domestic products or manufactures, and on
domestic business and occupations, inheritance
taxes, and stamp taxes; as broadly distinguished
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INTERPRETARE
from "customs duties," i. e., duties or taxes on
foreign commerce or on goods imported. Rev.St.
U.S. tit. 35, § 3140 et seq.
INTERNAL WATERS. Such as lie wholly within
the body of the particular state or country. The
Garden City, D.C.N.Y., 26 F. 773.
INTERNATIONAL COMMERCE. See Corn.
merce.
INTERNATIONAL COURT OF JUSTICE. An
agency of the United Nations. It has jurisdiction
to give advisory opinions on matters of law and
treaty construction when requested by the Gen-
eral Assembly, Security Council or any other in-
ternational agency authorized by the General As-
sembly to petition for such opinion. It has juris-
diction, also, to settle legal disputes between na-
tions when voluntarily submitted to it. Its judg-
ments may be enforced by the Security Council.
Every member of the United Nations is auto-
matically a member of the court.
INTERNATIONAL LAW. The law which reg-
ulates the intercourse of nations; the law of na-
tions. 1 Kent, Comm. 1, 4. The customary law
which determines the rights and regulates the
intercourse of independent states in peace and
war. 1 Wildm. Int. Law, 1.
Public international law is the body of rules which con-
trol the conduct of independent states in their relations
with each other.
Private international law is that branch of municipal law
which determines before the courts of what nation a par-
ticular action or suit should be brought, and by the law of
what nation it should be determined.
INTERNUNCIO. A minister of a second order,
charged with the affairs of the papal court in
countries where that court has no nuncio.
INTERNUNCIUS. A messenger between two par-
ties; a go-between. Applied to a broker, as the
agent of both parties. 4 C. Rob. Adm. 204.
INTERPELLATE. To address with a question,
especially when formal and public; originally
used with respect to proceedings in the French
legislature; used in reference to questions by the
court to counsel during an argument.
INTERPELLATION. In the civil law. The act
by which, in consequence of an agreement, the
party bound declares that he will not be bound
beyond a certain time. Wolff, Inst. Nat. § 752.
INTERPLEA. A plea by which a person sued in
respect to property disclaims any interest in it
and demands that rival claimants shall litigate
their titles between themselves and relieve him
from responsibility. Bennett v. Wolverton, 24
Kan. 286. See Interpleader.
In Missouri, a statutory proceeding, serving as
a substitute for the action of replevin, by which a
third person intervenes in an action of attachment,
sets up his own title to the specific property at-
tached, and seeks to recover the possession of it.
Rice v. Sall y , 176 Mo. 107, 75 S.W. 398; Spooner
, v. Ross, 24 Mo.App. 603; State v. Barker, 26 Mo.
App. 491; Brownwell, etc., Car. Co. v. Barnard,
139 Mo. 142, 40 S.W. 762.
INTERPLEADER. When two or more persons
claim the same thing (or fund) of a third, and
he, laying no claim to it himself, is ignorant which
of them has a right to it, and fears he may be
prejudiced by their proceeding against him to re-
cover it, he may file a bill in equity against them,
the object of which is to make them litigate their
title between themselves, instead of litigating it
with him, and such a bill is called a "bill of inter-
pleader." Brown; Hall v. San Jacinto State Bank,
Tex.Civ.App., 255 S.W. 506, 509; Alton & Peters
v. Merritt, 145 Minn. 426, 177 N.W. 770, 771.
By the statute 1 & 2 Wm. IV. c. 58, summary
proceedings at law were provided for the same
purpose, in actions of assumpsit, debt, detinue,
and trover. And the same remedy is known, in
one form or the other, in most or all of the United
States.
INTERPOLATE. To insert words in a complete
document.
INTERPOLATION. The act of interpolating;
the words interpolated.
INTERPOSITION. The doctrine that a state, in
the exercise of its sovereignty, may reject a man-
date of the federal government deemed to be un-
constitutional or to exceed the powers delegated
to the federal government. The doctrine denies
constitutional obligation of states to respect Su-
preme Court decisions with which they do not
agree. Bush v. Orleans Parish Sch. Bd., D.C.La.,
188 F.Supp. 916.
The concept is based on the 10th Amendment of
the Constitution of the United States reserving to
the states powers not delegated to the United
States. Historically, the doctrine emanated from
Chisholm v. Georgia, 2 Dallas 419, wherein the
state of Georgia, when sued in the Supreme Court
by a private citizen of another state, entered a
remonstrance and declined to recognize the court's
jurisdiction. Amendment 11 validated Georgia's
position.
Implementation of the doctrine may be peace-
able, as by resolution, remonstrance or legislation,
or may proceed ultimately to nullification, with
forcible resistance.
The Constitution does contemplate and provide
for the contingency of adverse state interposition
or legislation to annul or defeat the execution of
national laws. In re Charge to Grand Jury, Fed.
Cas.No.18,274 [2 Spr. 292].
INTERPRET. To construe; to seek out the mean-
ing of language; to translate orally from one
tongue to another.
INTERPRETARE ET CONCORDARE LEGES
LEGIBUS, EST OPTIMUS INTERPRETANDI
MODUS. To interpret, and [in such a way as] to
harmonize laws with laws, is the best mode of
interpretation. 8 Coke, 169a.
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INTERPRETATIO
INTERPRETATIO CHARTARUM BENIGNE FA-
CIENDA EST, UT RES MAGIS VALEAT QUAM
PEREAT. The interpretation of deeds is to be
liberal, that the thing may rather have effect than
fail. Broom, Max. 543.
INTERPRETATIO FIENDA EST UT RES MAG-
IS VALEAT QUAM PEREAT. Jenk. Cent. 198.
Such an interpretation is to be adopted that the
thing may rather stand than fall.
INTERPRETATIO TAMS IN AMBIGUIS SEM-
PER FIENDA EST UT EVITETUR INCONVEN-
IENS ET ABSURDUM. In cases of ambiguity,
such an interpretation should always be made that
what is inconvenient and absurd may be avoided.
4 Inst. 328.
INTERPRETATION. The art or process of dis-
covering and expounding the meaning of a stat-
ute, will, contract, or other written document.
People v. Com'rs of Taxes, 95 N.Y. 559; Rome v.
Knox, 14 How. Prac., N.Y., 272; Ming v. Pratt,
22 Mont. 262, 56 P. 279; Tallman v. Tallman, 3
Misc. 465, 23 N.Y.S. 734; Roberts v. Portland Wa-
ter Dist., 124 Me. 63, 126 A. 162, 163; Cohn-Hall-
Marx Co. v. Vanosdall, 25 Ohio App. 360, 157 N.E.
908, 909.
The discovery and representation of the true
meaning of any signs used to convey ideas. Lieb.
Herm.
"Construction" is a term of wider scope than "interpre-
tation;" for, while the latter is concerned only with ascer-
taining the sense and meaning of the subject-matter, the
former may also be directed to explaining the legal effects
and consequences of the instrument in question. Hence
interpretation precedes construction, but stops at the writ-
ten text.
Interpretation and construction of written instruments
are not the same. A rule of construction is one which
either governs the effect of an ascertained intention, or
points out what the court should do in the absence of
express or implied intention, while a rule of interpretation
is one which governs the ascertainment of the meaning of
the maker of the instrument. In re Union Trust Co., 151
N.Y.S. 246, 249, 89 Misc. 69.
Close interpretation (interpretatio restricta) is
adopted if just reasons, connected with the for-
mation and character of the text, induce us to
take the words in their narrowest meaning. This
species of interpretation has generally been called
"literal," but the term is inadmissible. Lieb.
Herm. 54.
Extensive interpretation (interpretatio exten-
siva, called, also, "liberal interpretation") adopts
a more comprehensive signification of the word.
Lieb. Herm. 58.
Extravagant interpretation (interpretatio ex-
cedens) is that which substitutes a meaning evi-
dently beyond the true one. It is therefore not
genuine interpretation. Lieb. Herm. 59.
Free or unrestricted interpretation (interpreta-
tio soluta) proceeds simply on the general prin-
ciples of interpretation in good faith, not bound
by any specific or superior principle. Lieb. Herm.
59.
Limited or restricted interpretation (interpre-
tatio limitata) is when we are influenced by other
principles than the strictly hermeneutic ones-
Lieb. Herm. 60.
Predestined interpretation (interpretatio pre-
destinata) takes place if the interpreter, laboring
under a strong bias of mind, makes the text sub-
servient to his preconceived views or desires.
This includes artful interpretation, (interpretatio
vafer,) by which the interpreter seeks to give a
meaning to the text other than the one he knows,
to have been intended. Lieb. Herm. 60.
It is said to be either "legal," which rests on the
same authority as the law itself, or "doctrinal,"
which rests upon its intrinsic reasonableness. Le-
g a 1 interpretation may be either "authentic," when
it is expressly provided by the legislator, or "us-
ual," when it is derived from unwritten practice.
Doctrinal interpretation may turn on the meaning
of words and sentences, when it is called "gram-
matical," or on the intention of the legislator,
when it is described as "logical." When logical in-
terpretation stretches the words of a statute to
cover its obvious meaning, it is called "extensive;"
when, on the other hand, it avoids giving full
meaning to the words, in order not to go beyond
the intention of the legislator, it is called "restric-
tive." Holl. Jur. 344.
As to strict and liberal interpretation, see Con-
struction.
In the civil law, authentic interpretation of laws';
isthat given by the legislator himself, which is
obligatory on the courts. Customary interpreta-
tion (also called "usual") is that which arises
from successive or concurrent decisions of the
court on the same subject-matter, having regard
to the spirit of the law, jurisprudence, usages,
and equity; as distinguished from "authentic" in-
terpretation, which is that given by the legislator
himself. Houston v. Robertson, 2 Tex. 26.
INTERPRETATION CLAUSE. A section of a
statute which defines the meaning of certain
words occurring frequently in the other sections.
INTERPRETER. A person sworn at a trial to
interpret the evidence of a foreigner or a deaf
and dumb person to the court. Amory v. Fellowes,
5 Mass. 226; People v. Lem Deo, 132 Cal. 199, 64
P. 266.
INTERREGNUM. An interval between reigns.
The period which elapses between the death of a
sovereign and the election of another. The va-
cancy which occurs when there is no government.
INTERROGATOIRE. In French law. An act
which contains the interrogatories made by the
judge to the person accused, on the facts which
are the object of the accusation, and the answers
of the accused. Poth. Proc. Crim. c. 4, art. 2, § 1.
INTERROGATORIES. A set or series of written
questions drawn up for the purpose of being pro-
pounded to a party in equity, a garnishee, or a
witness whose testimony is taken on deposition;
a series of formal written questions used in the
judicial examination of a party or a witness. In
taking evidence on depositions, the interrogatories
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INTERVENING
are usually prepared and settled by counsel, and
reduced to writing in advance of the examination.
Written questions propounded by one party and
served on adversary, who must serve written an-
swers thereto under oath. Neske v. Burns, 8 N.J.
Misc. 160, 149 A. 761.
Interrogatories are either direct or cross, the former
being those which are put on behalf of the party calling
a witness; the latter are those which are interposed by the
adverse party.
INTERRUPTIO. Lat. Interruption. A term
used both in the civil and common law of pre-
scription. Calvin.
INTERRUPTIO MULTIPLEX NON TOLLIT
PRJESCRIPTIONEM SEMEL OBTENTAM. 2
Inst. 654. Frequent interruption does not take
away a prescription once secured.
INTERRUPTION. The occurrence of some act or
fact, during the period of prescription, which is
sufficient to arrest the running of the statute of
limitations. It is said to be either "natural" or
"civil," the former being caused by the act of the
party; the latter by the legal effect or operation
of some fact or circumstance. Innerarity v.
Mims, 1 Ala. 674; Carr v. Foster, 3 Q.B. 588;
Flight v. Thomas, 2 Adol. & El. 701.
Interruption of the possession is where the right is not
enjoyed or exercised continuously; interruption of the
right is where the person having or claiming the right
ceases the exercise of it in such a manner as to show that
he does not claim to be entitled to exercise it.
In Scotch law. The true proprietor's claiming
his right during the course of prescription. Bell.
INTERSECTION. As applied to a street or high-
way means the space occupied by two streets at
the point where they cross each other. Rodgers
v. Commercial Casualty Ins. Co., 237 Ala. 301, 186
So. 684, 686. Space common to both streets or
highways, formed by continuing the curb lines.
Western Union Tel. Co. v. Dickson, 27 Tenn.App.
74, 173 S.W.2d 714, 718.
Point of intersection of two roads is the point where
their middle lines intersect. In re Springfield Road, 73 Pa.
127. But the term may also mean the point which each
of two approaching vehicles will reach at the same mo-
ment. Blashfleld, Cyc. of Automobile Law and Prac.,
Perm.Ed., § 983.
"Intersection" may apply where street or highway runs
into but without crossing another. Thrush v. Lingo Lum-
ber Co., Tex.Civ.App., 262 S.W. 551, 553; Pangborn v.
John Widdicomb Co., 223 Mich. 181, 193 N.W. 817, 31
A.L.R. 485; McCaa v. Thomas, 207 Ala. 211, 92 So. 414, 416;
Mitchell v. Raymond, 181 Wis. 591, 195 N.W. 855, 857, 35
A.L.R. 1115; Rohde v. Knock, 101 Conn. 439, 126 A. 335,
336; Lawrence v. Goodwill, 44 Cal.App. 440, 186 P. 781,
783; York Ice Machinery Corporation v. Sachs, 167 Md.
113, 173 A. 240, 243.
INTERSTATE. Between two or more states; be-
tween places or persons in different states; con-
cerning or affecting two or more states politically
or territorially.
INTERSTATE COMMERCE. Traffic, intercourse,
commercial trading, or the transportation of per-
sons or property between or among the several
states of the Union, or from or between points
in one state and points in another state; corn-
merce between two states, or between places ly-
ing in different states. Gibbons v. Ogden, 9 Wheat.
194, 6 L.Ed. 23; Wabash, etc. R. Co. v. Illinois, 118
U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244; Louisville & N.
R. Co. v. Railroad Com'rs, C.C.Tenn., 19 F. 701;
Victor Talking Mach. Co. v. Lucker, 128 Minn. 171,
150 N.W. 790, 791; State v. Knights of Ku Klux
Klan, 117 Kan. 564, 232 P. 254, 260, 37 A.L.R. 1267;
Kirmeyer v. State of Kansas, 236 U.S. 568, 35 S.Ct.
419, 59 L.Ed. 721; Western Union Telegraph Co.
v. Foster, 247 U.S. 105, 38 S.Ct. 438, 439, 62 L.Ed.
1006, 1 A.L.R. 1278. It comprehends all the com-
ponent parts of commercial intercourse between
different states. Furst v. Brewster, 282 U.S. 493,
51 S.Ct. 295, 296, 75 L.Ed. 478.
INTERSTATE COMMERCE ACT. The act of
congress of February 4, 1887 (49 U.S.C.A. § 1 et
seq.), designed to regulate commerce between the
states, and particularly the transportation of per-
sons and property, by carriers, between interstate
points, prescribing that charges for such trans-
portation shall be reasonable Ind just, prohibiting
unjust discrimination, rebates, draw-backs, prefer-
ences, pooling of freights, etc., requiring sched-
ules of rates to be published, establishing a com-
mission to carry out the measures enacted, and
prescribing the powers and duties of such com-
mission and the procedure before it.
INTERSTATE COMMERCE COMMISSION. A
commission created by the interstate commerce
act (q. v.) to carry out the measures therein en-
acted, composed of eleven persons, appointed by the
President, empowered to inquire into the business
of the carriers affected, to enforce the law, to re-
ceive, investigate, and determine complaints made
to them of any violation of the act, make annual
reports, hold stated sessions, etc. 49 U.S.C.A. § 11.
INTERSTATE EXTRADITION. The reclamation
and surrender, according to due legal proceedings,
of a person who, having committed a crime in one
of the states of the Union, has fled into another
state to evade justice or escape prosecution.
INTERSTATE LAW. That branch of private in-
ternational law which affords rules and principles
for the determination of controversies between
citizens of different states in respect to mutual
rights or obligations, in so far as the same are
affected by the diversity of their citizenship or by
diversity in the laws or institutions of the several
states.
INTERVENING ACT. Of third person in order to
break chain of causation and obviate liability for
original breach of duty must be a superseding
cause and one which original wrongdoer was not
bound to anticipate as the natural or ordinary re-
sult of his acts. Frazier v. Ayres, La.App., 20 So.
2d 754, 759; Littell v. Argus Production Co., C.C.A.
Kan., 78 F.2d 955, 957.
INTERVENING AGENCY. To render an original
wrong a remote cause, an "intervening agency,"
must be independent of such wrong, adequate to
produce the injury, so interrupting the natural
sequence of events as to produce a result different
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INTERVENING
from what would have been produced, and one
that could not have been reasonably expected from
the original wrong. Lemos v. Madden, 28 Wyo.
1, 200 P. 791, 795.
An independent "intervening agency" which will protect
the original wrongdoer must be the efficient cause of the
injury of which complaint is made, and not a negligent act
or omission of such agency concurring with or succeeding
the original negligence permitted by the original wrong-
doer to continue and which in the natural course of events
results in such injury. In short, the result prevented by
the intervening agency must be the injury complained of,
and not the requital for that injury. Swanson v. Slagal,
212 Ind. 394, 8 N.E.2d 993, 1000.
An "intervening efficient cause" is a new and independ-
ent force which breaks the causal connection between the
original wrong and injury, and itself becomes direct and
immediate cause of injury. Phillabaum v. Lake Erie & W.
R. Co., 315 Ill. 131, 145 N.E. 806, 808.
INTERVENING CAUSE. The "intervening cause,"
which will relieve of liability for an injury, is an
independent cause which intervenes between the
original wrongful act or omission and the injury,
turns aside the natural sequence of events, and
produces a result which would not otherwise have
followed and which could not have been reason-
ably anticipated. Hartman v. Atchison, T. & S. F.
Ry. Co., 94 Kan. 184, 146 P. 335, 336, L.R.A. 1915D,
563. An act of an independent agency which de-
stroys the causal connection between the negli-
gent act of the defendant and the wrongful injury;
the independent act being the immediate cause,
in which case damages are not recoverable be-
cause the original wrongful act is not the proxi-
mate cause. Davenport v. McClellan, 88 N.J.L.
653, 96 A. 921.
INTERVENING DAMAGES. See Damages.
INTERVENING FORCE. One which actively op-
erates in producing harm to another after the
actor's negligent act or omission has been commit-
ted. Walborn v. Epley, 148 Pa.Super. 417, 24 A.2d
668, 671; American Mut. Liability Ins. Co. v.
Buckley & Co., C.C.A.Pa., 117 F.2d 845, 847.
INTERVENOR. An intervenor is a person who
voluntarily interposes in an action or other pro-
ceeding with the leave of the court. Ladue v.
Goodhead, 181 Misc. 807, 44 N.Y.S.2d 783, 787.
INTERVENTION. In international law. Inter-
vention is such an interference between two or
more states as may (according to the event) re-
sult in a resort to force; while mediation always
is, and is intended to be and to continue, peaceful
only. Intervention between a sovereign and his
own subjects is not justified by anything in inter-
national law; but a remonstrance may be ad-
dressed to the sovereign in a proper case. Brown.
In English ecclesiastical law. The proceeding
of a third person, who, not being originally a party
to the suit or proceeding, but claiming an interest
in the subject-matter in dispute, in order the better
to protect such interest, interposes his claim. 2
Chit. Pr. 492; 3 Chit. Commer. Law, 633; 2 Hagg.
Const. 137; 3 Phillim. Ecc. Law, 586; Stillwell
Hotel Co. v. Anderson, 16 Cal.App.2d 636, 61 P.2d
71, 72,
In the civil law. The act by which a third party
demands to be received as a party in a suit pend-
ing between other persons. Stillwell Hotel Co. v.
Anderson, 16 Cal.App.2d 636, 61 P.2d 71, 73.
The intervention is made either for the purpose
of being joined to the plaintiff, and to claim the
same thing he does, or some other thing connected
with it; or to join the defendant, and with him
to oppose the claim of the plaintiff, which it is
his interest to defeat. Poth. Proc. Civile, pt. 1, c.
2, § 7, no. 3.
In practice. A proceeding in a suit or action by
which a third person is permitted by the court to
make himself a party, either joining the plaintiff
in claiming what is sought by the complaint, or
uniting with the defendant in resisting the claims
of the plaintiff, or demanding something adversely
to both of them. Logan v. Greenlaw, C.C.Tenn.,
12 F. 16; Fischer v. Hanna, 8 Colo.App. 471, 47
P. 303; Gale v. Frazier, 4 Dak. 196, 30 N.W. 138;
Reay v. Butler, Cal., 7 P. 671; Gorham v. Hall, 172
Ark. 744, 290 S.W. 357, 358; Adler v. Seaman, C.C.
A.Mo., 266 F. 828, 832; In re Prouty's Estate, 107
Vt. 496, 181 A. 134.
INTESTABILIS. Lat. A witness incompetent to
testify. Calvin.
INTESTABLE. One who has not testamentary
capacity; e. g., an infant, lunatic, or person civilly
dead.
INTESTACY. The state or condition of dying
without having made a valid will, or without hav-
ing disposed by will of a part of his property. In
re Shestack's Estate, 267 Pa. 115, 110 A. 166;
Brown v. Mugway, 15 N.J.L. 331.
Besides the strict meaning of the word as above given,
there is also a sense in which intestacy may be partial;
that is, where a man leaves a will which does not dispose
of his whole estate, he is said to "die intestate" as to the
property so omitted.
INTESTATE. Without making a will. A person
is said to die intestate when he dies without mak-
ing a will, or dies without leaving anything to test-
ify what his wishes were with respect to the dis-
posal of his property after his death. The word
is also often used to signify the person himself.
Thus, in speaking of the property of a person who
died intestate, it is common to say "the intestate's
property;"  e., the property of the person dying
in an intestate condition. Brown. In re Camer-
on's Estate, 47 App.Div. 120, 62 N.Y.S. 187; Mess-
mann v. Egenberger, 46 App.Div. 46, 61 N.Y.S.
556; Code Civ.Proc.N.Y. 1899, § 2514, subd. 1 (Sur-
rogate's Court Act, § 314, subd. 1).
INTESTATE LAWS. Statutes which provide and
prescribe the devolution of estates of persons who
die without disposing of their estates by law, will
or testament. Fullbright v. Boardman, 159 Ga.
162, 125 S.E. 44, 46, 37 A.L.R. 532; In re Rogers'
Estate, Mo.Sup., 250 S.W. 576, 578; Ford v. U. S.,
C.C.A.N.Y., 205 F. 130, 134.
INTESTATE SUCCESSION. A succession is
called "intestate" when the deceased has left no
will, or when his will has been revoked or annulled
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INTRA
as irregular. Therefore the heirs to whom a suc•
cession has fallen by the effects of law only are
called "heirs ab intestato." Civ. Code La. art.
1096.
INTESTATO. Lat. In the civil law. Intestate;
without a will. Calvin.
INTESTATUS. Lat. In the civil and old English
law. An intestate; one who dies without a will.
Dig. 50, 17, 7.
INTESTATUS DECEDIT, QUI AUT OMNIO
TESTAMENTUM NON FECIT; AUT NON JURE
FECIT; AUT ID QUOD FECERAT RUPTUM IR-
RITUMVE FACTUM EST; AUT NEMO EX EO
HARES EXSTITIT. A person dies intestate who
either has made no testament at all or has made
one not legally valid; or if the testament he has
made be revoked, or made useless; or if no one
becomes heir under it. Inst. 3, 1, pr.
INTIMACY. As generally applied to persons, it
is understood to mean a proper, friendly relation
of the parties, but it is frequently used to convey
the idea of an improper relation; an intimacy at
least disreputable and degrading. Collins v. Pub.
Co., 152 Pa. 187, 25 A. 546, 34 Am.St.Rep. 636.
See McCarty v. Coffin, 157 Mass. 478, 32 N.E. 649.
INTIMATE. Close in friendship or acquaintance,
familiar, confidential; also near, close, direct,
thorough, complete. Atkins Corporation v. Tour-
ny, 6 Ca1.2d 206, 57 P.2d 480, 484.
INTIMATION. In the civil law. A notification to
a party that some step in a legal proceeding is
asked or will be taken. Particularly, a notice giv-
en by the party taking an appeal, to the other
party, that the court above will hear the appeal.
In Scotch law. A formal written notice, drawn
by a notary, to be served on a party against whom
a stranger has acquired a right or claim; e. g.,
the assignee of a debt must serve such a notice
on the debtor, otherwise a payment to the original
creditor will be good.
INTIMIDATION. Unlawful coercion; duress;
putting in fear. Michaels v. Hillman, 112 Misc.
395, 183 N.Y.S. 195, 200; Kayser v. Fitzgerald, 109
Misc. 27, 178 N.Y.S. 130, 134; Burns v. Lackey, 171
Ky. 21, 186 S.W. 909, 913; Southwick v. State, 126
Ark. 188, 189 S.W. 843, 844; Shehany v. Lowry,
170 Ga. 70, 152 S.E. 114, 115.
INTIMIDATION OF VOTERS. This, by statute
in several of the states, is made a criminal of-
fense. Under an early Pennsylvania act, it was
held that, to constitute the offense of intimidation
of voters, there must be a preconceived intention
for the purpose of intimidating the officers or in-
terrupting the election. Respublica v. Gibbs, 3
Yeates, Pa., 429.
INTITLE. An old form of "entitle." 6 Mod. 304.
INTO. A preposition signifying to the inside of;
within. It expresses entrance, or a passage from
the outside of a thing to its interior, and follows
verbs expressing motion. It has been held equiva-
lent to, or synonymous with, "at," "inside of," and
"to," and has been distinguished from the words
"from" and "through." 48 C.J.S. p. 120.
INTOL and UTTOL. In old records. Toll or cus-
tom paid for things imported and exported, or
bought in and sold out. Cowell.
INTOLERABLE CRUELTY. In the law of di-
vorce, this term denotes extreme cruelty, cruel
and inhuman treatment, barbarous, savage, and
inhuman conduct, and is equivalent to any of those
phrases. Shaw v. Shaw, 17 Conn. 193; Morehouse
v. Morehouse, 70 Conn. 420, 39 A. 516; Blain v.
Blain, 45 Vt. 544.
INTOXICATED. Affected by an intoxicant, un-
der the influence of an intoxicating liquor. Tay-
lor v. Joyce, 4 Cal.App.2d 612, 41 P.2d 967, 968.
INTOXICATING LIQUOR. Any liquor used as a
beverage, and which, when so used in sufficient
quantities, ordinarily or commonly produces entire
or partial intoxication; any liquor intended for
use as a beverage or capable of being so used,
which contains alcohol, either obtained by fermen-
tation or by the additional process of distillation,
in such proportion that it will produqe intoxication
when imbibed in such quantities as may practical-
ly be drunk. Intoxicating Liquor Cases, 25 Kan.
767, 37 Am.Rep. 284; Com'rs v. Taylor, 21 N.Y.
173; People v. Hawley, 3 Mich. 339; State v. Ol-
iver, 26 W.Va. 431, 53 Am.Rep. 79; Frisvold v.
Leahy, 15 Ca1.App.2d 752, 60 P.2d 151, 153; Wor-
ley v. Spurgeon, 38 Iowa 465. See, also, Alcoholic
Liquors.
INTOXICATION. The state of being poisoned;
the condition produced by the administration or
introduction into the human system of a poison.
But in its popular use this term is restricted to
alcoholic intoxication, that is, drunkenness or in-
ebriety, or the mental and physical condition in-
duced by drinking excessive quantities of alcoholic
liquors, and this is its meaning as used in, statutes,
indictments, etc. Sapp v. State, 116 Ga. 182, 42
S.E. 410; State v. Pierce, 65 Iowa 85, 21 N.W. 195;
Wadsworth v. Dunnam, 98 Ala. 610, 13 So. 599;
Ring v. Ring, 112 Ga. 854, 38 S.E. 330; State v.
Kelley, 47 Vt. 296; Com. v. Whitney, 11 Cush.,
Mass., 477.
INTOXIMETER. A trade name for scientific
breath testing device that operates on assumption
that concentration of blood alcohol bears fixed re-
lation to concentration of alcohol in the deep
lung, or alveolar air. City of Sioux Falls v. Kohler,
S.D., 118 N.W.2d 14.
INTRA. Lat. In; near; within. "Infra" or
"inter" has taken the place of "intra" in many
of the more modern Latin phrases.
INTRA ANNI SPATIUM. Within the space of a
year. Cod. 5, 9, 2. Intra annale tempus. Id. 6,
30, 19.
INTRA FIDEM. Within belief; credible. Calvin.
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INTRA
INTRA LUCTUS TEMPUS. Within the time of
mourning. Cod. 9, 1, auth.
INTRA MCENIA. Within the walls (of a house.)
A term applied to domestic or menial servants.
1 Bl. Comm. 425.
INTRA PARIETES. Between walls; among
friends; out of court; without litigation. Calvin.
INTRA PRZESIDIA. Within the defenses. See
Infra Prsidia.
INTRA QUATUOR MARIA. Within the four
seas. Shep. Touch. 378.
INTRA FIRES. An act is said to be intra vires
("within the power") of a person or corporation
when it is within the scope of his or its powers
or authority. It is the opposite of ultra vires,
(q. v.). Pittsburgh, etc., R. Co. v. Dodd, 115 Ky.
176, 72 S.W. 827.
INTRALIMINAL. In mining law, the term "in-
traliminal rights" denotes the right to mine, take,
and possess all such bodies or deposits of ore as
lie within the four planes formed by the vertical
extension downward of the boundary lines of the
claim; as distinguished from "extraliminal," or
more commonly "extralateral," rights. Jefferson
Min. Co. v. Anchoria-Leland Mill. & Min. Co., 32
Colo. 176, 75 P. 1073, 64 L.R.A. 925.
INTRAMURAL. Within the walls. The powers
of a municipal corporation are "intramural" and
"extramural"; the one being the powers exercised
within the corporate limits, and the other being
those exercised without. State v. Port of Astoria,
79 Or. 1, 154 P. 399, 404.
INTRARE MARISCUM. L. Lat. To drain a
marsh or low ground, and convert it into herbage
or pasture.
INTRASTATE COMMERCE. See Commerce.
INTRINSECUM SERVITIUM. Lat. Common
and ordinary duties with the lord's court.
INTRINSIC EVIDENCE is that which is derived
from a document without anything to explain it.
INTRODUCTION. The part of a writing which
sets forth preliminary matter, or facts tending to
explain the subject.
INTROMISSION. In Scotch law. The assumption
of authority over another's property, either legally
or illegally. The irregular intermeddling with the
effects of a deceased person, which subjects the
party to the whole debts of the deceased, is called
"vitious intromission." Kames, Eq. b. 3, c. 8, § 2.
Necessary Intromission. That kind of intromission or
interference where a husband or wife continues in posses-
sion of the other's goods after their decease, for preserva-
tion. Wharton.
In English law. Dealings in stock, goods, or
cash of a principal coming into the hands of his
agent, to be accounted for by the agent to his prin-
cipal. Stewart v. McKean, 29 Eng.Law & Eq. 391.
INTRONISATION. In French ecclesiastical law.
Enthronement. The installation of a bishop in
his episcopal see.
INTRUDER. One who enters upon land without
either right of possession or color of title. Miller
v. McCullough, 104 Pa. 630; Russel v. Chambers,
43 Ga. 479. In a more restricted sense, a stranger
who, on the death of the ancestor, enters on the
land, unlawfully, before the heir can enter. Wil-
liams v. Alt, 226 N.Y. 283, 123 N.E. 499, 500. Also
one who intrudes on office and assumes to exercise
its functions without legal title or color of right
thereto. State ex rel. City of Republic v. Smith,
345 Mo. 1158, 139 S.W.2d 929, 933; Alleger v.
School Dist. No. 16, Newton County, Mo.App., 142
S.W.2d 660, 663.
INTRUSION. A species of injury by ouster or
amotion of possession from the freehold, being an
entry of a stranger, after a particular estate of
freehold is determined, before him in remainder
or reversion. Hulick v. Scovil, 9 Ill. 170; Boylan
v. Deinzer, 45 N.J.Eq. 485, 18 A. 121.
The name of a writ brought by the owner of a
fee-simple, etc., against an intruder. New Nat.
Brev. 453. Abolished by 3 & 4 Wm. IV. c. 57.
INTRUST. To confer a trust upon; to deliver to
another something in trust or to commit some-
thing to another with a certain confidence regard-
ing his care, use or disposal of it. State v. Ug-
land, 48 N.D. 841, 187 N.W. 237, 239.
INTUITUS. Lat. A view; regard; contempla-
tion. Diverso intuitu, (q. v.,) with a different
view.
INUNDATION. The overflow of waters by com-
ing out of their bed. See, also, Dam; Backwater;
Irrigation; Waters; Water Course.
Inundations may arise from three causes : from public
necessity, as in defence of a place it may be necessary to
dam the current of a stream, which will cause an inunda-
tion to the upper lands; they may be occasioned by an
invincible force, as by the accidental fall of a rock in the
stream, or by a natural flood or freshet; or they may
result from the erection of works on the stream. In the
first case, the injury caused by the inundation is to be com-
pensated as other injuries done in war; in the second, as
there was no fault of any one, the loss is to be borne by the
unfortunate owner of the estate; in the last, when the
riparian proprietor is injured by such works as alter the
level of the water where it enters or where it leaves the
property on which they are erected, the person injured
may recover ,damages for the injury thus caused to his
property by the inundation, 9 Co. 59; 1 B. & Ald. 258;
Sumner v. Tileston, 7 Pick., Mass., 198; Bailey v. City of
New York, 3 Hill, N.Y., 531, 38 Am.Dec. 669; Tillotson v.
Smith, 32 N.H. 90, 64 Am.Dec. 355; Merritt v. Parker, 1
N.J.L. 460; Williams v. Gale, 3 Har. & J., Md., 231; Ohio
& M. R. Co. v. Nuetzel, 43 Ill.App. 108.
INURE. To take effect; to result. Cedar Rapids
Water Co. v. Cedar Rapids, 118 Iowa 234, 91 N.W.
1081; Hinson v. Booth, 39 Fla. 333, 22 So. 687;
Holmes v. Tallada, 125 Pa. 133, 17 A. 238, 3 L.R.A.
219, 11 Am.St.Rep. 880; Salyer v. Jackson, 105 Okl.
212, 232 P. 412, 414; Malachowski v. Varro, 76
Cal.App. 207, 244 P. 936, 938.
INUREMENT. Use; user; service to the use or
benefit of a person. Dickerson v. Colgrove, 100
U.S. 583, 25 L.Ed. 618.
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INVENTUS
INUTILIS LABOR ET SINE FRUCTU NON EST
EFFECTUS LEGIS. Useless and fruitless labor is
not the effect of law. Co. Litt. 127b. The law for-
bids such recoveries whose ends are vain, charge-
able, and unprofitable. Id.; Wing. Max. p. 110,
max. 38.
INVADIARE. To pledge or mortgage lands.
INVADIATIO. A pledge or mortgage.
INVADIATUS. One who is under pledge; one
who has had sureties or pledges given for him.
Spelman.
INVALID. Vain; inadequate to its purpose; not
of binding force or legal efficacy; lacking in au-
thority or obligation. Hood v. Perry, 75 Ga. 312;
State v. Casteel, 110 Ind. 174, 11 N.E. 219; Mutual
Ben. L. Ins. Co. v. Winne, 20 Mont. 20, 49 P. 446;
Avery & Co. v. Sorrell, 157 Ga. 476, 121 S.E. 828,
829; Dreidlein v. Manger, 69 Mont. 155, 220 P. 1107,
1108; Columbian Nat. Fire Ins. Co. v. Dixie Co-op.
Mail Order House, Tex.Civ.App., 261 S.W. 174, 179.
INVASION. An encroachment upon the rights of
another; the incursion of an army for conquest
or plunder. Webster. See /Etna Ins. Co. v. Boon,
95 U.S. 129, 24 L.Ed. 395.
INVASIONES. The inquisition of serjeanties and
knights' fees. Cowell.
INVECTA ET ILLATA. Lat. In the civil law.
Things carried in and brought in. Articles brought
into a hired tenement by the hirer or tenant, and
which became or were pledged to the lessor as
security for the rent. Dig. 2, 14, 4, pr. The phrase
is adopted in Scotch law. See Bell.
INVENIENS LIBELLUM FAMOSUM ET NON
CORRUMPENS PUNITUR. He who finds a libel
and does not destroy it is punished. Moore, 813.
INVENT. To find out something new; to devise,
contrive, and produce something not previously
known or existing, by the exercise of independent
investigation and experiment; particularly applied
to machines, mechanical appliances, compositions,
and patentable inventions of every sort. To create.
E. W. Bliss Co. v. United States, 248 U.S. 37, 39 S.
Ct. 42, 43, 63 L.Ed. 112.
INVENTIO. In the Civil law. Finding; one of
the modes of acquiring title to property by occu-
pancy. Heinecc. lib. 2, tit. 1, § 350.
In Old English law. A thing found; as goods
or treasure-trove. Cowell. The plural, "inven-
tiones," is also used.
INVENTION. In patent law. The act or opera-
tion of finding out something new; the process
of contriving and producing something not pre-
viously known or existing, by the exercise of inde-
pendent investigation and experiment. Also the
article or contrivance or composition so invented.
Leidersdorf v. Flint, 15 Fed.Cas. 260; Smith v.
Nichols, 21 Wall. 118, 22 L.Ed. 566; Hollister v.
Manufacturing Co., 5 S.Ct. 717, 113 U.S. 72, 28 L.
Ed. 901; Murphy Mfg. Co. v. Excelsior Car Roof
Co., C.C.Mo., 70 F. 495.
A concept or thing evolved from the mind. "Invention"
is not a revelation of something which existed and was
unknown, but the creation of something which did not exist
before, and possessing elements of novelty and utility in
kind and measure different from, and greater than, what
the art might expect from skilled workers. Pyrene Mfg.
Co. v. Boyce, C.C.A.N.J., 292 F. 480, 481. The finding out—
the contriving, the creating of something which did not
exist, and was not known before, and which can be made
useful and advantageous in the pursuits of life, or which
can add to the enjoyment of mankind. Conover v. Roach,
4 Fish. 12. Fed.Cas.No.3,125. Not every improvement is
invention; but to entitle a thing to protection it must be
the product of some exercise of the inventive faculties. and
it must involve something more than what is obvious to
persons skilled in the art to which it relates. Rosenwasser
v. Berry, C.C.Me., 22 F. 841. Mere adaptation of known
process to clearly analogous use is not invention. Firestone
Tire and Rubber Co. v. U. S. Rubber Co., C.C.A.Ohio, 79
F.2d 948. 952. 953.
"Invention" involves the exercise of the creative mind.
Aeolian Co. v. Wanamaker, D.C., 221 F. 666, 668.
Inventive skill has been defined as that intuitive faculty
of the mind put forth in the search for new results, or new
methods, creating what had not before existed, or bringing
to light what lay hidden from vision; it differs from a
suggestion of that common experience which arose spon-
taneously and by a necessity of human reasoning in the
minds of those who had become acquainted with the cir-
cumstances with which they had to deal. Hollister v. Mfg.
Co., 113 U.S. 72, 5 S.Ct. 717, 28 L.Ed. 901. -Invention, in
the nature of improvements, is the double mental act of
discerning, in existing machines, processes or articles,
some deficiency, and pointing out the means of overcoming
it. General Electric Co. v. Electric Co., Ill., 174 F. 246, 98
C. C. A. 154.
An "invention" differs from a "discovery." The former
term is properly applicable to the contrivance and produc-
tion of something that did not before exist; while dis-
covery denotes the bringing into knowledge and use of
something which, although it existed, was before unknown.
Thus, we speak of the "discovery" of the properties of
light, electricity, etc., while the telescope and the electric
motor are the results of the process of "invention."
For "Examination of invention", see Examina-
tion.
INVENTIONES. See Inventio.
INVENTOR. One who finds out or contrives some
new thing; one who devises some new art, manu-
facture, mechanical appliance, or process; one
who invents a patentable contrivance. Sparkman
v. Higgins, 22 Fed.Cas. 879; Henderson v. Tomp-
kins, C.C.Mass., 60 F. 764.
INVENTORY. A detailed list of articles of prop-
erty; a list or schedule of property, containing
a designation or description of each specific ar-
ticle; an itemized list of the various articles con-
stituting a collection, estate, stock in trade, etc.,
with their estimated or actual values. In law, the
term is particularly applied to such a list made
by an executor, administrator, or assignee in bank-
ruptcy. See Silver Bow Min. Co. v. Lowry, 5 Mont.
618, 6 P. 62; Lloyd v. Wyckoff, 11 N.J.Law, 224;
Roberts, etc., Co. v. Sun Mut. L. Ins. Co., 48 S.W.
559, 19 Tex.Civ.App. 338; Southern F. Ins. Co. v.
Knight, 111 Ga. 622, 36 S.E. 821, 52 L.R.A. 70, 78
Am.St.Rep. 216.
INVENTUS. Lat. Found. Thesaurus inventus,
treasure-trove. Non est inventus, [he] is not
found.
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INVERITARE
INVERITARE. To make proof of a thing. Jacob.
INVERSE ORDER OF ALIENATION DOCTRINE.
Under this doctrine, mortgagee or other lienor,
where land subject to lien has been aliened in sep-
arate parcels successively, shall satisfy his lien
out of land remaining in grantor or original own-
er if possible, and, if that be insufficient, he shall
resort to parcels aliened in inverse order of their
alienation. Fidelity & Casualty Co. of New York
v. Massachusetts Mut. Life Ins. Co., C.C.A.N.C., 74
F.2d 881, 884.
INVEST. To loan money upon securities of a
more or less permanent nature, or to place it in
business ventures or real estate, or otherwise lay
it out, so that it may produce a revenue or income.
Drake v. Crane, 127 Mo. 85, 29 S.W. 990, 27 L.R.A.
653; Stramann v. Scheeren, 7 Colo.App. 1, 42 P.
191; Una v. Dodd, 39 N.J.Eq. 186.
To clothe one with the possession of a fief or
benefice. See Investiture.
INVESTIGATION. To follow up step by step by
patient inquiry or observation; to trace or track
mentally; to search into; to examine and inquire
into with care and accuracy; to find out by care-
ful inquisition; examination; the taking of evi-
dence; a legal inquiry. Lukert v. Eldridge, 49
Mont. 46, 139 P. 999, 1001; People ex rel. Fennell
v. Wilmot, 217 N.Y.S. 477, 479, 127 Misc. 791. Ap-
plication of Gilchrist, 130 Misc. 456, 224 N.Y.S. 210,
219.
INVESTITIVE FACT. The fact by means of
which a right comes into existence; e. g., a grant
of a monopoly, the death of one's ancestor. Holl.
Jur. 132.
INVESTITURE. A ceremony which accompanied
the grant of lands in the feudal ages, and con-
sisted in the open and notorious delivery of pos-
session in the presence of the other vassals, which
perpetuated among them the sera of their new ac-
quisition at the time when the art of writing was
very little known; and thus the evidence of the
property was reposed in the memory of the neigh-
borhood, who, in case of disputed title, were after-
wards called upon to decide upon it. Brown.
In Ecclesiastical law. Investiture is one of the
formalities by which the election of a bishop is
confirmed by the archbishop. See Phillim. Ecc.
Law, 42, et seq.
INVESTMENT. The placing of capital or laying
out of money in a way intended to secure income
or profit from its employment. Securities & Ex-
change Commission v. Wickham, D.C.Minn., 12 F.
Supp. 245, 247.
INVIOLABILITY. The attribute of being secured
against violation. The persons of ambassadors
are inviolable.
INVITATION. In the law of negligence, and with
reference to trespasses on realty, invitation is the
act of one who solicits or incites others to enter
upon, remain in, or make use of, his property or
structures thereon, or who so arranges the prop-
erty or the means of access to it or of transit over
it as to induce the reasonable belief that he ex-
pects and intends that others shall come upon it
or pass over it. Sweeney v. Old Colony & N. R.
Co., 10 Allen, Mass., 373, 87 Am.Dec. 644; Wilson
v. New York, N. H. & H. R. Co., 18 R.I. 491, 29 A.
258; Wright v. Boston & A. R. Co., 142 Mass. 300,
7 N.E. 866.
Thus the proprietor of a store, theatre or amusement
park "invites" the public to come upon his premises for
such purposes as are comiected with its intended use.
Again, the fact that safety gates at a railroad crossing,
which should be closed in case of danger, are left standing
open, is an "invitation" to the traveler on the highway to
cross. Roberts v. Delaware & H. Canal Co., 177 Pa. 183,
35 A. 723. So, bringing a passenger train on a railroad to
a full stop at a regular station is an "invitation to alight."
License distinguished
A license Is a passive permission on the part of the
owner of premises, with reference to other persons enter-
ing upon or using them, while an invitation implies a
request, solicitation or desire that they should do so. An
invitation may be inferred where there is a common inter-
est or mutual advantage; while a license will be inferred
where the object is the mere pleasure or benefit of the per-
son using it. Bennett v. Louisville & N. R. Co., 102 U.S.
580, 26 L.Ed. 235; Weldon v. Philadelphia, W. & B. R. Co.,
2 Pennewill, Del., 1, 43 A. 159; Babcock and Wilcox Co. v.
Nolton, 58 Nev. 131, 71 P.2d 1051, 1053. An owner owes to
a licensee no duty as to the condition of the premises
(unless imposed by statute) save that he should not know-
ingly let him run upon a hidden peril or willfully cause
him harm; while to one invited he is under the obligation
to maintain the premises in a reasonably safe and secure
condition. Beehler v. Daniels, 18 R.I. 563, 29 A. 6, 27
L.R.A. 512, 49 Am.St.Rep. 790.
Express and implied
An invitation may be express, when the owner or occu-
pier of the land by words invites another to come upon it
or make use of it or of something thereon; or it may be
implied when such owner or occupier by acts or conduct
leads another to believe that the land or something thereon
was intended to be used as he uses them, and that such use
is not only acquiesced in by the owner or occupier, but is
in accordance with the intention or design for which the
way or place or thing was adapted and prepared and
allowed to be used. Turess v. New York, S. & W. R. Co.,
61 N.J.L. 314, 40 A. 614; Furey v. New York Cent. R. Co.,
67 N.J.L. 270, 51 A. 505; Lepnick v. Gaddis, 72 Miss. 200,
16 So. 213, 26 L.R.A. 686, 48 Am.St.Rep. 547; Plummer v.
Dill, 156 Mass. 426, 31 N.E. 128, 32 Am.St.Rep. 463; Wil-
mes v. Chicago Great Western Ry. Co., 175 Iowa, 101, 156
N.W. 877, 880, L.R.A.1917F, 1024; Gasch v. Rounds, 93
Wash. 317, 160 P. 962, 964; Coburn v. Village of Swanton,
95 Vt. 320, 115 A. 153, 156; Bush v. Weed Lumber Co., 63
Cal.App. 426, 218 P. 618, 620; Polluck v. Minneapolis & St.
L. R. Co., 44 S.D. 249, 183 N.W. 859, 862.
INVITED ERROR. See Error,
INVITEE. One who is at a place upon the invi-
tation of another. Crossgrove v. Atlantic Coast
Line R. Co., 30 Ga.App. 462, 118 S.E. 694, 695;
Carr v. Wallace Laundry Co., 31 Idaho 266, 170 P.
107; Fleckenstein v. Great Atlantic & Pacific Tea
Co., 91 N.J.L. 145, 102 A. 700, L.R.A.1918C, 179;
Crossgrove v. Atlantic Coast Line R. Co., 30 Ga.
App. 462, 118 S.E. 694; Campbell v. Sutliff, 193
Wis. 370, 214 N.W. 374, 375, 53 A.L.R. 771; Moohr
v. Victoria Inv. Co., 144 Wash. 387, 258 P. 43, 46;
Holm v. Investment & Securities Co., 195 Wash.
52, 79 P.2d 708, 711.
INVITO. Lat. Being unwilling. Against or with-
out the assent or consent.
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IPSO
Ab invito
By or from an unwilling party. A transfer ab invito is
a compulsory transfer.
Invito debitore
Against the will of the debtor.
Invito domino
The owner being unwilling; against the will of the
owner; without the owner's consent. In order to consti-
tute larceny, the property must be taken invito domino.
INVITO BENVFICIUM NON DATUR. A benefit
is not conferred on one who is unwilling to re-
ceive it; that is to say, no one can be compelled
to accept a benefit. Dig. 50, 17, 69; Broom, Max.
699, note.
INVOICE. In commercial law. A list or account
of goods or merchandise sent by merchants to
their correspondents at home or abroad, in which
the marks of each package, with other particulars,
are set forth. Marsh. Ins. 408; Jac. Sea Laws,
302; Dane Abr.; Merchants' Exch. Co. v. Weis-
man, 132 Mich. 353, 93 N.W. 870; Southern Exp.
Co. v. Hess, 53 Ala. 22; Cramer v. Oppenstein, 16
Colo. 495, 27 P. 713; Stone v. First Nat. Bank,
100 Or. 528, 198 P. 244. Written itemized accounts
sent to a purchaser by the seller of merchandise.
Cobb & Seal Shoe Store v. 'Etna Ins. Co., 78 S.C.
388, 58 S.E. 1099; Garner Mfg. Co. v. Cornelius
Lumber Co., 165 Ark. 119, 262 S.W. 1011, 1014;
Wilmot v. Minneapolis Automobile Trade Ass'n,
169 Minn. 140, 210 N.W. 861, 862; Larlthi Co. v.
New York, C. & St. L. R. Co., 98 Misc. 446, 162 N.Y.
S. 870, 871. A list sent to a purchaser, factor, con-
signee, etc., containing the items, together with
the prices and charges of merchandise sent or to
be sent to him. State v. Standard Oil Co. of In-
diana, 222 Iowa 1209, 271 N.W. 185, 187. A writing
made on behalf of an importer, specifying the
merchandise imported, and its true cost or value.
And. Rev. Law, § 294.
INVOICE BOOK. A book in which invoices are
copied.
INVOICE PRICE of goods means the prime cost.
Le Roy v. United Ins. Co., 7 Johns., N.Y., 343. The
cost or value of property at the shipping point.
State v. Standard Oil Co. of Indiana, 222 Iowa
1209, 271 N.W. 185, 188.
In sale of retail stock of goods, this term ordinarily
means wholesale cost at time goods were purchased by
seller. Hamilton v. O'Rear, 224 Ala. 625, 141 So. 565, 567.
INVOLUNTARY. Without will or power of choice;
opposed to volition or desire. Curry v. Federal
Life Ins. Co., 221 Mo.App. 626, 287 S.W. 1053, 1056.
An involuntary act is that which is performed with
constraint (q. v.) or with repugnance, or without
the will to do it. An action is involuntary, then,
which is performed under duress. Wolff Inst. Nat.
§ 5.
As to involuntary "Bankruptcy," "Indebtedness,"
"Nonsuit," and "Trust," see those titles.
INVOLUNTARY DEPOSIT. In the law of bail-
ments, one made by the accidental leaving or plac-
ing of personal property in the possession of an-
other, without negligence on the part of the owner,
or, in cases of fire, shipwreck, inundation, riot,
insurrection, or the like extraordinary emergen-
cies, by the owner of personal property commit.
ting it out of necessity to the care of any person.
Civ. Code S. D. 1903, § 1354 (Rev. Codes 1919, §
971).
INVOLUNTARY DISCONTINUANCE. In prac-
tice. A discontinuance is involuntary where, in
consequence of technical omission, mispleading, or
the like, the suit is regarded as out of court, as
where the parties undertake to refer a suit that is
not referable, or omit to enter proper continu-
ances. Hunt v. Griffin, 49 Miss. 748.
INVOLUNTARY MANSLAUGHTER. The unlaw-
ful killing of a human being in the commission
of an unlawful act not amounting to felony, or in
the commission of a lawful act which might pro-
duce death in an unlawful manner, or without due
caution and circumspection. State v. Goodwin, 189
La. 443, 179 So. 591, 602; Salyer v. Commonwealth,
165 Va. 744, 181 S.E. 435, 436.
INVOLUNTARY PAYMENT. One obtained by
fraud, oppression, or extortion, or to avoid the
use of force to coerce it, or to obtain the release
of the person or property from detention. Parch-
er v. Marathon County, 52 Wis. 388, 9 N.W. 23, 38
Am.Rep. 745; Wolfe v. Marshal, 52 Mo. 168;
Corkle v. Maxwell, 6 Fed.Cas. 555.
INVOLUNTARY SERVITUDE. The condition of
one who is compelled by force, coercion, or im-
prisonment, and against his will, to labor for an-
other, whether he is paid or not. See State v.
West, 42 Minn. 147, 43 N.W. 845; Ex parte Wilson,
114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; Thompson
v. Benton, 117 Mo. 83, 22 S.W. 863, 20 L.R.A. 462;
In re Slaughterhouse Cases, 16 Wall. 69, 21 L.Ed.
394; Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct.
326, 41 L.Ed. 715.
IOTA. The minutest quantity possible. Iota is
the smallest Greek letter. The word "jot" is de-
rived therefrom.
IPSZE LEGES CUPIUNT UT JURE REGANTUR.
Co. Litt. 174. The laws themselves require that
they should be governed by right.
IPSE. Lat. He himself; the same; the very
person.
IPSE DIXIT. He himself said it; a bare assertion
resting on the authority of an individual.
IPSISSIMIS VERBIS. In the identical words; op-
posed to "substantially." Townsend v. Jemison, 7
How. 719, 12 L.Ed. 880; Summons v. State, 5 Ohio
St. 346.
IPSO FACTO. By the fact itself; by the mere
fact. By the mere effect of an act or a fact. Bar-
ber Asphalt Paving Co. v. Hayward, 248 Mo. 280,
154 S.W. 140, 141.
In English ecclesiastical law. A censure of excommuni-
cation in the ecclesiastical court, immediately incurred for
divers offenses, after lawful trial.
Black's Law Dictionary Revised 4th Ed.-61
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IPSO JURE. By the law itself; by the mere op-
eration of law. Calvin.
IPSWICH, DOMESDAY OF. The earliest extant
record of any borough court with elective officers
sitting regularly and administering a customary
law of the sea. Black Book of Admiralty, Vol. II.
It was abolished by 5 & 6 Will. IV. c. 76. Its
twelve "capital portmen" were elected from the
most fit, wealthy and discreet of the judges.
IRA FUROR BREVIS EST. Anger is a short in-
sanity. Beardsley v. Maynard, 4 Wend., N.Y., 336,
355.
IRA MOTUS. Lat. Moved or excited by anger
or passion. A term sometimes formerly used in
the plea of son assault demesne. 1 Tidd, Pr. 645.
IRADE. A decree of the Sultan.
IRE AD LARGUM. Lat. To go at large; to es-
cape; to be set at liberty.
IRENARCHA. In Roman law. An officer whose
duties are described in Dig. 5, 4, 18, 7. See Id. 48,
3, 6; Cod. 10, 75. Literally, a peace-officer or mag-
istrate.
IRON-SAFE CLAUSE. A common clause in poli-
cies of fire insurance, requiring the insured to
preserve his books and inventory in an iron or
fireproof safe, or in some secure place not ex-
posed to a fire which would destroy the building.
This provision casts on the insured the responsi-
bility for the loss of books and records if due to
the wrongful act or negligence of himself or his
employees in failing to comply with the require-
ment. 45 C.J.S. p. 358.
IRRATIONAL. Unreasonable, foolish, absurd; a
person may be irrational in such sense, and still
not be insane in the legal sense. Lee v. State, 30
Okl.Cr. 14, 234 P. 654, 655.
IRRECUSABLE. A term used to indicate a cer-
tain class of contractual obligations recognized by
the law which are imposed upon a person without
his consent and without regard to any act of his
own. They are distinguished from recusable ob-
ligations which are the result of a voluntary act
on the part of a person on whom they are imposed
by law. A clear example of an irrecusable obli-
gation is the obligation imposed on every man not
to strike another without some lawful excuse.
A recusable obligation is based upon some act of
a person bound, which is a condition precedent
to the genesis of the obligation. These terms were
first suggested by Prof. Wigmore in 8 Harv. Law
Rev. 200. See Harr. Contr. 6.
IRREGULAR. Not according to rule; improper
or insufficient, by reason of departure from the
prescriber) course.
As to irregular "Deposit," "Indorsement," "Pro-
cess," and "Succession," see those titles.
IRREGULAR JUDGMENT. One rendered con-
trary to the course and practice of the court.
Duplin County v. Ezzell, 223 N.C. 531, 27 S.E.2d
448, 450.
IRREGULARITY. The doing or not doing that,
in the conduct of a suit at law, which, conforma-
bly with the practice of the court, ought or ought
not to be done. Doe ex dem. Cooper v. Harter, 2
Ind. 252. Violation or nonobservance of estab-
lished rules and practices. The want of adher-
ence to some prescribed rule or mode of proceed-
ing; consisting either in omitting to do something
that is necessary for the due and orderly conduct-
ing of a suit, or doing it in an unseasonable time
or improper manner. Coulter v. Board of Com'rs
of Bernalillo County, 22 N.M. 24, 158 P. 1086; Ex
parte Davis, 118 Or. 693, 247 P. 809, 811; Emeric
v. Alvarado, 64 Cal. 529, 2 P. 418; Hall v. Mung-
er, 5 Lans., N.Y., 113; Corn Exch. Bank v. Blye,
119 N.Y. 414, 23 N.E. 805; Salter v. Hilgen, 40 Wis.
365; Turrill v. Walker, 4 Mich. 183. The technical
term for every defect in practical proceedings, or
the mode of conducting an action or defense, as
distinguishable from defects in pleadings. 3 Chit.
Gen. Pr. 509.
Not synonymous with illegality. City of Tampa v. Pal-
mer, 89 Fla. 514, 105 So. 115, 117. "Irregularity" is a want
of adherence to some prescribed rule or mode of proceed-
ing, while "illegality" denotes a radical defect. United
States v. Salomon, D.C.La., 231 F. 461, 463; U. S. v. Rich-
mond, C.C.A.Pa., 17 F.2d 28, 32. "Illegality" in the assess-
ment of a tax is a substantial defect contrary to law and
leaving the proceeding with nothing to stand on, while an
"irregularity" is a formal defect contrary only to the prac-
tice authorized by law, and relating rather to the manner
of doing the act than to the act itself. Bunten v. Rock
Springs Grazing Ass'n, 29 Wyo. 461, 215 P. 244, 254.
Under statutes authorizing the modification or setting
aside of judgments, "irregularity" is some departure from
the prescribed procedure in the trial, or in the determina-
tion of the action, not evidenced by a ruling or an order.
Duncan v. Wilkins, 103 Okl. 221, 229 P. 801, 802; American
Nat. Bank of Tucumcari v. Tarpley, 31 N.M. 667, 250 P.
18, 20. But under a statute providing for relief against an
irregularity in obtaining a judgment, the term has no fixed
legal meaning, and in every instance the question is one
of fact, dependent upon the circumstances of each case.
Nation v. Savely, 127 Okl. 117, 260 P. 32, 34.
Irregularity in the proceedings of the court, as
used in a California statute pertaining to new
trials, relates to matters occurring during the
trial, and not after it. Diamond v. Superior Court
of California in and for City and County of San
Francisco, 189 Cal. 732, 210 P. 36, 37.
In Canon law. Any impediment which pre-
vents a man from taking holy orders.
General
Legal Irregularity. An irregularity occurring
in the course of some legal proceeding. A defect
or informality which, in the technical view of the
law, is to be accounted an irregularity.
IRRELEVANCY. The absence of the quality of
relevancy, as in evidence or pleadings. The quali-
ty or state of being inapplicable or impertinent
to a fact or argument.
Irrelevancy, in an answer, consists in statements which
are not material to the decision of the case; such as do
not form or tender any material issue. People v. McCum-
ber, 18 N.Y. 321, 72 Am.Dec. 515; Walker v. Hewitt, 11
How.Prac., N.Y., 398; Carpenter v. Bell, 1 Rob., N.Y.,
715; Smith v. Smith, 50 S.C. 54, 27 S.E. 545. See, also,
Irrelevant.
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IS
IRRELEVANT. Not relevant; not relating or
applicable to the matter in issue; not supporting
the issue. Crump v. Lanham, 67 Okl. 33, 168 P. 43,
44. Evidence is irrelevant where it has no tend-
ency to prove or disprove any issue involved.
Malone v. State, 16 Ala.App. 185, 76 So. 469, 470.
IRRELEVANT ALLEGATION. One which has no
substantial relation to the controversy between
the parties to the suit, and which cannot affect the
decision of the court. Wayte v. Bowker Chemical
Co., 196 App.Div. 665, 187 N.Y.S. 276, 277; Com-
mander Milling Co. v. Westinghouse Electric and
Mfg. Co., C.C.A.Minn., 70 F.2d 469, 472; The test
of any allegation being whether it tends to consti-
tute a cause of action or a defense, Isaacs v.
Solomon, 159 App.Div. 675, 144 N.Y.S. 876, 877.
An allegation is irrelevant, where the issue made by its
denial has no effect upon the cause of action or no connec-
tion with the allegation. Germofert Mfg. Co. v. Castles,
97 S.C. 389, 81 S.E. 665, 666. In this connection, "redun-
dant" is almost a synonym for "irrelevant." Plank v.
Hopkins, 35 S.D. 243, 151 N.W. 1017, 1019.
IRRELEVANT ANSWER. See Answer.
IRREMOVABILITY. The status of a pauper in
England, who cannot be legally removed from
the parish or union in which he is receiving relief,
notwithstanding that he has not acquired a settle-
ment there. 3 Steph.Comm. 60. Thus a pauper
who has resided in a parish during the whole of
the preceding year is irremovable, in view of
Stat. 28 and 29 Vict. c. 79, § 8.
IRREPARABLE DAMAGES. See Damages.
IRREPARABLE INJURY. See Injury.
IRREPLEVIABLE. That cannot be replevied or
delivered on sureties. Spelled, also, "irreplevisa-
ble." Co. Litt. 145; 13 Edw. I. c. 2.
IRRESISTIBLE FORCE. A term applied to such
an interposition of human agency as is, from its
nature and power, absolutely uncontrollable; as
the inroads of a hostile army. Story, Bailm. § 25;
Noel Bros. v. Texas & P. Ry. Co., 16 La.App. 622,
133 So. 830, 832.
IRRESISTIBLE IMPULSE. Used chiefly in crim-
inal law, this term means an impulse to commit
an unlawful or criminal act which cannot be re-
sisted or overcome by the patient because insanity
or mental disease has destroyed the freedom of
his will and his power of self-control and of choice
as to his actions. McCarty v. Corn., 114 Ky. 620,
71 S.W. 658; State v. Knight, 95 Me. 467, 50 A.
276, 55 L.R.A. 373; Leache v. State, 22 Tex.App.
279, 3 S.W. 539, 58 Am.Rep. 638; State v. Peel, 23
Mont. 358, 59 P. 169, 75 Am.St.Rep. 529. And see
Insanity.
IRREVOCABLE. Which cannot be revoked or
recalled. Commissioner of Internal Revenue v.
Strong Mfg. Co., C.C.A.6, 124 F.2d 360, 363.
IRREVOCABLE LETTER. A confirmed irrevoca-
ble letter of credit, irrevocable letter, or a con-
firmed credit is a contract to pay on compliance
with its terms, and needs no formal acknowledg-
ment or acceptance other than is therein stated.
Lamborn v. National Park Bank of New York, 240
N.Y. 520, 148 N.E. 664, 665.
IRRIGATION. The operation of watering lands
for agricultural purposes by artificial means. In
its primary sense, a sprinkling or watering; spe-
cifically, the application of water to lands for the
raising of agricultural crops and other products
of the soil. Platte Water Co. v. Irrigation Co., 12
Colo. 529, 21 P. 711; City and County of Denver v.
Brown, 56 Colo. 216, 138 P. 44, 49.
IRRIGATION COMPANY. A private corporation,
authorized and regulated by statute in several
states, having for its object to acquire exclusive
rights to the water of certain streams or other
sources of supply, and to convey it by means of
ditches or canals through a region where it can
be beneficially used for agricultural purposes, and
either dividing the water among stockholders, or
making contracts with consumers, or furnishing
a supply to all who apply at fixed rates.
IRRIGATION DISTRICT. A public and quasi-
municipal corporation authorized by law in several
states, comprising a defined region or area of land
which is susceptible of one mode of irrigation from
a common source and by the same system of
works. These districts are created by proceedings
in the nature of an election under the supervision
of a court, and are authorized to purchase or con-
demn the lands and waters necessary for the sys-
tem of irrigation proposed and to construct nec-
cessary canals and other works, and the water is
apportioned ratably among the landowners of the
district. Nampa & Meridian Irr. Dist. v. Briggs,
27 Idaho 84, 147 P. 75, 82.
IRRITANCY. In Scotch law. The happening of
a condition or event by which a charter, contract,
or other deed, to which a clause irritant is an-
nexed, becomes void.
IRRITANT. In Scotch law. Avoiding or making
void; as an irritant clause. See Irritancy.
IRRITANT CLAUSE. In Scotch law. A provision
by which certain prohibited acts specified in a
deed are, if committed, declared to be null and
void. A resolutive clause dissolves and puts an
end to the right of a proprietor on his committing
the acts so declared void.
IRROGARE. Lat. In the civil law. To impose
or set upon, as a fine. Calvin. To inflict, as a
punishment. To make or ordain, as a law.
IRROTULATIO. L. Lat. An enrolling; a record.
IS. This word, although normally referring to
the present, Cunningham v. Moser, 910k1. 44, 215
P. 758, 759; Jenkins v. First Nat. Bank, 73 Mont.
110, 236 P. 1085, 1087; often has a future meaning,
but is not synonymous with "shall have been."
State v. Jorgenson, 25 N.D. 539, 142 N.W. 450, 462,
49 L.R.A.,N.S., 67. It may have, however, a past
signification, as in the sense of "has been." 48
C.J.S. p. 774.
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IS
IS QUI COGNOSCIT. Lat. The cognizor in a
fine. Is cui cognoscitur, the cognizee.
ISM In Scotch law. The period of the termina-
tion of a tack or lease. 1 Bligh, 522.
ISLAND. A piece of land surrounded by water.
Webber v. Pere Marquette Boom Co., 62 Mich.
626, 30 N.W. 469; Goff v. Cougle, 118 Mich. 307,
76 N.W. 489, 42 L.R.A. 161.
An island that arises in the bed of a stream usually first
presents itself as a sand bar, Cox v. Arnold, 129 Mo. 337,
31 S. W. 592, 50 Am.St.Rep. 450; Glassell v. Hansen, 135
Cal. 547, 67 P. 964; Holman v. Hodges, 112 Iowa, 714, 84
N.W. 950, 58 L.R.A. 673, 84 Am.St.Rep. 367; a bar, before
it will support vegetation of any kind, may become valu-
able for fishing, hunting, as a shooting park, for the har-
vest of ice, for pumping sand, etc. If further deposits of
alluvion upon it would make it more valuable, the law of
accretion should still apply, Fowler v. Wood, 73 Kan. 511,
85 P. 763, 6 L.R.A.,N.S., 162, 117 Am.St.Rep. 534. Land in
a navigable stream which is surrounded by water only in
times of high water is not an island within the rule that
the state takes title to newly formed islands in navigable
streams. Payne v. Hall, 192 Iowa, 780, 185 N.W. 912, 915.
ISOLATED TRANSACTION. This term, in con-
nection with the rule that single or isolated trans-
actions do not violate a statute prohibiting foreign
corporations from doing business within a state
without first filing a copy of their charter, may
be inapplicable to a single transaction consummat-
ed in furtherance of a corporation's business,
where it is shown that the corporation in question
is a foreign corporation, with its principal office
in a town in a sister state near the state line,
and that it has solicited business generally in trib-
utary territory within the adjoining state. Dahl
Implement & Lumber Co. v. Campbell, 45 N.D.
239, 178 N.W. 197, 198.
ISSEI, Jap. A term used to describe alien Jap-
anese residing in the United States. 1945 Report
of the Tenney Joint Fact-Finding Committee on
Un-American Activities to the California Legisla-
ture p. 48.
ISSINT. A law French term, meaning "thus,"
"so," giving its name to part of a plea in debt.
A term formerly used to introduce a statement
that special matter already pleaded amounts to a
denial.
An example of this form of plea, which is sometimes
called the special general issue, occurs in Bauer v. Roth, 4
Rawle, Pa., 83.
ISSUABLE. In practice. Leading or tending to,
or producing, an issue; relating to an issue or
issues. See Colquitt v. Mercer, 44 Ga. 433.
ISSUABLE DEFENSE. A technical expression
meaning a plea to the merits, properly setting
forth a legal defense, as distinguished from a
plea in abatement, or any plea going only to delay
the case. Adamson v. Reagin, 143 Ga. 306, 84 S.
E. 965.
ISSUABLE PLEA. A plea to the merits; a tra-
versable plea. A plea such that the adverse par-
ty can join issue upon it and go to trial. It is
true a plea in abatement is a plea, and, if it be
properly pleaded, issues may be found on it. In
the ordinary meaning of the word "plea," and of
the word "issuable," such pleas may be called
"issuable pleas," but, when these two words are
used together, "issuable plea," or "issuable de-
fense," they have a technical meaning, to-wit,
pleas to the merits. Colquitt v. Mercer, 44 Ga. 434.
ISSUABLE TERMS. In the former practice of
the English courts, Hilary term and Trinity term
were called "issuable terms," because the issues
to be tried at the assizes were made up at those
terms. 3 Bl.Comm. 353. But the distinction is
superseded by the provisions of the judicature acts
of 1873 and 1875.
ISSUE, v. To send forth; to emit; to promulgate;
as, an officer issues orders, process issues from a
court. To put into circulation; as, the treasury
issues notes. To send out, to send out officially;
to deliver, for use, or authoritatively; to go forth
as authoritative or binding. Stokes v. Paschall,
Tex.Civ.App., 243 S.W. 611, 614; Blythe v. Doheny,
C.C.A.Cal., 73 F.2d 799, 803.
A writ is "issued" when it is delivered to an officer, with
the intent to have it served, Wilkins v. Worthen, 62 Ark.
401, 36 S.W. 21; Michigan Ins. Bk. v. Eldred, 130 U.S. 693,
9 S.Ct. 690, 32 L.Ed. 1080; Webster v. Sharpe, 116 N.C.
466, 21 S.E. 912; Ferguson v. Estes & Alexander, Tex.Civ.
App., 214 S.W. 465, 466.
When used with reference to a writ of error, State v.
Brown, 103 N.J.L. 519, 138 A. 370 ; a writ of scire facias,
In re Johns' Estate, 253 Pa. 532, 98 A. 719, 720; a writ of
attachment, McMaster v. Ruby, 80 Or. 476, 157 P. 782, 784;
corporate stock, Cattlemen's Trust Co. of Fort Worth v.
Turner, Tex.Civ.App., 182 S.W. 438, 441; a bond, Klutts v.
Jones, 20 N.M. 230, 148 P. 494, 499; Travis v. First Nat.
Bank, 210 Ala. 620, 98 So. 890, 891; Steinbruck v. Milford
Tp., 100 Kan. 93, 163 P. 647; State v. School Board of
Tecumseh Rural High School Dist. No. 4, 110 Kan. 779, 204
P. 742, 744; a deed, Wyman v. Hageman, 318 Ill. 64, 148
N.E. 852, 855; a note, Foster v. Security Bank & Trust
Co., Tex.Com.App., 288 S.W. 438, 440; an insurance policy,
Coleman v. New England Mut. Life Ins. Co., 236 Mass. 552,
129 N.E. 288, 289; National Liberty Ins. Co. v. Norman,
C.C.A.N.C., 11 F.2d 59, 61; and the like, the term is ordi-
narily construed as importing delivery to the proper per-
son, or to the proper officer for service, etc. But it does
not invariably have such a meaning. Estabrook & Co. v.
Consolidated Gas, Electric Light & Power Co. of Baltimore,
122 Md. 643, 90 A. 523, 524.
In financial parlance the term "Issue" seems to have two
phases of meaning. "Date of issue" when applied to
notes, bonds, etc., of a series, usually means the arbitrary
date fixed as the beginning of the term for which they run,
without reference to the precise time when convenience or
the state of the market may permit of their sale or deliv-
ery. When the bonds are delivered to the purchaser, they
will be "Issued" to him, which is the other meaning of the
term. Turner v. Roseberry Irr. Dist., 33 Idaho, 746, 198 P.
465, 467. See, also, Anderson v. Mutual Life Ins. Co. of
New York, 164 Cal. 712, 130 P. 726, 727, Ann.Cas.1914B, 903.
ISSUE, n. The act of issuing, sending forth, emit-
ting or promulgating; the giving a thing its first
inception; as the issue of an order or a writ.
Pleading
A single, certain, and material point, deduced by
the pleadings of the parties, which is affirmed on
the one side and denied on the other. Whitney v.
Borough of Jersey Shore, 266 Pa. 537, 109 A. 767,
769; Village of Oak Park v. Eldred, 265 Ill. 605,
107 N.E. 145, 146. A single certain and material
point arising out of the allegations of the parties,
and it should generally be made up of an affirma-
tive and a negative. Cowen Co. v. Houck Mfg. Co.,
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ISSUE
C.C.A.N.Y., 249 F. 285, 287; Simmons v. Hagner,
140 Md. 248, 117 A. 759, 760. A fact put in con-
troversy by the pleadings. Shea v. Hillsborough
Mills, 78 N.H. 57, 96 A. 293, 294.
The disputed point or question to which the parties in an
action have narrowed their several allegations, and upon
which they are desirous of obtaining the decision of the
proper tribunal. When the plaintiff and defendant have
arrived at some specific point or matter affirmed on the
one side, and denied on the other, they are said to be at
issue. Knaggs v. Cleveland-Cliffs Iron Co., C.C.A.Ohio,
287 F. 314, 316; First Nat. Bank v. District Court of Har-
din County, 193 Iowa, 561, 187 N.W. 457, 458. (But as used
in a rule of. court, a case is not "at issue" where nothing
but a demurrer has been filed, presenting no issue except a
question of law as to the sufficiency of the complaint.
Arnett v. Hardwick, 27 Ariz. 179, 231 P. 922, 923.) The
question so set apart is called the "issue," and is desig-
nated, according to its nature, as an "issue in fact" or ah
"issue in law " Brown ; Martin v. City of Columbus, 101
Ohio St. 1, 127 N.E. 411, 413.
Issues arise upon the pleadings, when a fact or conclu-
sion of law is maintained by the one party and contro-
verted by the other. They are of two kinds : (1) of law;
and (2) of fact. Rev.Code Iowa 1880, § 2737 (Rules of Civil
Procedure, Rule 176); Code Civ.Proc.Cal. § 588; Comp.St.
Wyo.1910, § 4451 (Rev.St.1931, § 89-1202); Berglar v. Uni-
versity City, Mo.App., 190 S.W. 620, 622; General Electric
Co. v. Sapulpa & I. Ry. Co., 49 Okl. 376, 153 P. 189, 193.
The entry of the pleadings. 1 Chitty, P1. 630.
Issues are classified and distinguished as fol-
lows:
General and special. The former is a plea which
traverses and denies, briefly and in general and
summary terms, the whole declaration, indictment,
or complaint, without tendering new or special
matter. Steph. Pl. 155; Tilden v. E. A. Stevenson
& Co., 3 W.W.Harr. 151, 132 A. 739, 740; McAllis-
ter v. State, 94 Md. 290, 50 A. 1046; Standard Loan
& Acc. Ins. Co. v. Thornton, 97 Tenn. 1, 40 S.W.
136. Examples of the general issue are "not guil-
ty," "non assumpsit," "nil debet," "non est fac-
tum." The latter is formed when the defendant
chooses one single material point, which he tra-
verses, and rests his whole case upon its deter-
mination.
Identical. Issues determined by same ques-
tions of fact and of law. Allbee v. Elms, 93 N.H.
202, 37 A.2d 790, 791.
Material and immaterial. They are so described
according as they do or do not bring up some ma-
terial point or question which, when determined
by the verdict, will dispose of the whole merits of
the case, and leave no uncertainty as to the judg-
ment. Pearson v. Pearson, 104 Misc. 675, 173 N.Y.
S. 563, 565.
Formal and informal. The former species of is-
sue is one framed in strict accordance with the
technical rules of pleading. The latter arises
when the material allegations of the declaration
are traversed, but in an inartificial or untechnical
mode. In the latter case, the defect is cured by
verdict, by the statute 32 Hen. VIII. c. 30.
A collateral issue is an issue taken upon matter
aside from the intrinsic merits of the action, as
upon a plea in abatement; or aside from the di-
rect and regular order of the pleadings, as on a
demurrer. 2 Archb. Pr. K. B. 1, 6, bk. 2, pts. 1, 2;
Strickland v. Maddox, 4 Ga. 394. The term "col-
lateral" is also applied in England to an issue
raised upon a plea of diversity of person, pleaded
by a criminal who has been tried and convicted,
in bar of execution, viz., that he is not the same
person who was attainted, and the like. 4 Bl.
Comm. 396. Matters collateral to the main issue
are those which do not constitute an essential ele-
ment of the offense embraced within the charge.
State v. English, 308 Mo. 695, 274 S.W. 470, 474.
Real or feigned. A real or actual issue is one
formed in a regular manner in a regular suit for
the purpose of determining an actual controversy.
A feigned issue is one made up by direction of the
court, upon a supposed case, for the purpose of
obtaining the verdict of a jury upon some question
of fact collaterally involved in the cause. Such
issues are generally ordered by a court of equity,
to ascertain the truth of a disputed fact. They
are also used in courts of law, by the consent of
the parties, to determine some disputed rights
without the formality of pleading; and by this
practice much time and expense are saved in the
decision of a cause. 3 Bla.Comm. 452. The name
is a misnomer, inasmuch as the issue itself is upon
a real, material point in question between the par-
ties, and the circumstances only are fictitious.
Common issue is the name given to the issue
raised by the plea of non est factum to an action
for breach of covenant.
Ultimate issue signifies either such an issue as
within itself is sufficient and final for the disposi-
tion of the entire case or one which in connection
with other issues will serve such end. First State
Bank of Seminole v. Dillard, Tex.Civ.App., 71 S.
W.2d 407, 410.
This is so called because it denies the deed only, and not
the breach, and does not put the whole declaration in
issue, and because there is no general issue to this form of
action. 1 Chitty, P1. 482; Gould, Pl. c. 6, pt. 1, 1 7.
Realty Law
Descendants. All persons who have descended
from a common ancestor. Edmundson v. Leigh,
189 N.C. 196, 126 S.E. 497, 499, Offspring; progeny;
descent; lineage; lineal descendants. Gardner
v. Anderson, 114 Kan. 778, 227 P. 743, 747; In re
Schuster's Will, 111 Misc. 534, 181 N.Y.S. 500, 503;
Wilkins v. Rowan, 107 Neb. 180, 185 N.W. 437, 439;
Rhode Island Hospital Trust Co. v. Bridgham, 42
R.I. 161, 106 A. 149, 153, 5 A.L.R. 185; Hoadley v.
Beardsley, 89 Conn. 270, 93 A. 535, 538; Turner v.
Monteiro, 127 Va. 537, 103 S.E. 572, 575, 13 A.L.R.
383; In re Book's Will, 89 N.J.Eq. 509, 105 A. 878,
879; 3 Ves. 257; 17 Ves. 481; 19 Ves. 547; 1 Rop.
Leg. 90.
In this sense, the word includes not only a child or chil-
dren, but all other descendants in whatever degree; and it
is so construed generally in deeds. But, when used in
wills, it is, of course, subject to the rule of construction
that the intention of the testator, as ascertained from the
will, is to have effect, rather than the technical meaning of
the language used by him; and hence issue may, in such a
connection, be restricted to children, or to descendants liv-
ing at the death of the testator, where such an intention
clearly appears. Abbott; Sibley v. Perry, 7 Ves.Jun. 523,
529; Ralph v. Carrick, 11 Ch.D. 873, 883; Barmore v. Dar-
ragh, Tex.Civ.App., 231 S.W. 472, 479; Newcomb v. New-
comb, 197 Ky. 801, 248 S.W. 198, 200; Horner v Haase, 177
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ISSUE
Iowa 115, 158 N.W. 548, 549; In re Rynear's Estate, 224
N.Y.S. 606, 607, 130 Misc. 804.
The word "issue" in a will is generally a word of limita-
tion, In re Packer's Estate, 246 Pa. 116, 92 A. 70, 74; Bax-
ter v. Early, 131 S.C. 374, 127 S.E. 607; Bonnycastle v.
Lilly, 153 Ky. 834, 156 S.W. 874, L.R.A.1916B, 1076; and
when so used, is sometimes said to be equivalent to "heirs
of the body" ; Rhode Island Hospital Trust Co. v. Bridg-
ham, 42 R.I. 161, 106 A. 149, 152, 5 A.L.R. 185; Parrish v.
Hodges, 178 N.C. 133, 100 S.E. 256; Middletown Trust Co.
v. Gaffey, 96 Conn. 61, 112 A. 689, 690. But it has been
pointed out in other cases that this word is not as strong 'a
word of limitation as the words "heirs of the body,"
Adams v. Verner, 102 S.C. 7, 86 S.E. 211, 214; City Nat.
Bank v. Slocum, C.C.A.Ohio, 272 F. 11, 18; and yields
readily to a context indicating its use as a word of pur-
chase, Stout v. Good, 245 Pa. 383, 91 A. 613, 615; Evers-
meyer v. McCollum, 171 Ark. 117, 283 S.W. 379, 382; Ford
v. McBrayer, 171 N. C. 420, 88 S.E. 736, 737; Yarrington v.
Freeman, 201 Ky. 135, 255 S.W. 1034.
The word is commonly held to include only legitimate
issue. Page v. Roddie, 92 Okl. 236, 218 P. 1092, 1095; King
v. Thissell, 222 Mass. 140, 109 N.E. 880; Hardesty v. Mitch-
ell, 302 369, 134 N.E. 745, 746, 24 A.L.R. 565; Love v.
Love, 179 N.C. 115, 101 S.E. 562, 563; contra: Eaton v.
Eaton, 88 Conn. 286, 91 A. 196, 198.
Business Law
A class or series of bonds, debentures, etc., com-
prising all that are emitted at one and the same
time.
ISSUE IN FACT. In pleading. An issue taken
upon or consisting of matter of fact, the fact only,
and not the law, being disputed, and which is to
be tried by a jury. 3 Bl.Comm. 314, 315; Co. Litt.
126a; 3 Steph.Comm. 572. An issue which arises
upon a denial in the answer of a material allega-
tion of the complaint or in the reply of a material
allegation in the answer. Rev. Codes, Mont. §
6793 (Rev. Code 1921, § 9395). See, also, Code Civ.
Proc. Cal. § 590; Comp. St. Wyo. 1910, § 4452 (Rev.
St. 1931, § 89-1203).
The "issues of fact" which, if presented by the pleadings
and supported by evidence, must be submitted to the jury,
where requested, are only the independent ultimate facts
which go to make up plaintiff's cause of action and defend-
ant's ground of defense. Texas City Transp. Co. v. Win-
ters, Tex.Com.App., 222 S.W. 541, 542.
ISSUE IN LAW. In pleading. An issue upon
matter of law, or consisting of matter of law, be-
ing produced by a demurrer on the one side, and a
joinder in demurrer on the other. 3 Bl.Comm.
314; 3 Steph.Comm. 572, 580; Code Civ. Proc. Cal.
§ 589. The term "issue" may be so used as to in-
clude one of law raised by demurrer to the com-
plaint, as well as one raised by answer. Fruth v.
Bolt, 39 S.D. 371, 164 N.W. 270, 271.
ISSUE ROLL. In English practice. A roll upon
which the issue in actions at law was formerly
required to be entered, the roll being entitled of
the term in which the issue was joined. 2 Tidd
Pr. 733. It was not, however, the practice to enter
the issue at full length, if triable by the country,
until after the trial, but only to make an incipitur
on the roll. Id. 734. It was abolished by the rules
of Hilary Term, 1834. Moz. & W. Diet.
ISSUES. In English law. The goods and profits
of the lands of a defendant against whom a writ
of distringas or distress infinite has been issued,
taken by virtue of such writ. 3 Bl.Comm. 280;
1 Chit. Crim. Law, 351.
ISSUES AND PROFITS, as applied to real estate,
comprehend every available return therefrom,
whether it arise above or below the surface.
Minner v. Minner, 84 W.Va. 679, 100 S.E. 509, 510.
ISSUES ON SHERIFFS. Fines and amercements
inflicted on sheriffs for neglects and defaults, lev-
ied out of the issues and profits of their lands.
Toml.
ISTIMRAR. Continuance; perpetuity; especially
a farm or lease granted in perpetuity by govern-
ment or a zemindar (q. v.). Wilson's Gloss ; Ind.
ISTIMRARDAR. The holder of a perpetual lease.
Moz. & W,
ITA EST. Lat. So it is; so it stands. In modern
civil law, this phrase is a form of attestation added
to exemplifications from a notary's register when
the same are made by the successor in office of
the notary who made the original entries.
ITA LEX SCRIPTA EST. Lat. So the law is
written. Dig. 40, 9, 12; Allen v. Cook, 26 Barb.,
N.Y., 374, 380; Hemphill's Appeal, 18 Pa. 306;
Monson v. Chester, 22 Pick., Mass., 389. The law
must be obeyed notwithstanding the apparent
rigor of its application. 3 Bl.Comm. 430. We must
be content with the law as it stands, without in-
quiring into its reasons. 1 Bl.Comm. 32.
ITA QUOD. Lat. In Old Practice. So that. For-
mal words in writs. Ita quod habeas corpus, so
that you have the body. 2 Mod. 180. The name
of the stipulation in a submission to arbitration
which begins with the words "so as [ita quod] the
award be made of and upon the premises."
In Old Conveyancing. So that. An expression
which, when used in a deed, formerly made an es-
tate upon condition. Litt. § 329. Sheppard enu-
merates it among the three words that are most
proper to make an estate conditional. Shep.
Touch. 121, 122.
ITA SEMPER FIAT RELATIO UT VALEAT DIS-
POSITIO. 6 Coke, 76. Let the interpretation be
always such that the disposition may prevail.
ITA TE DEUS ADJUVET. Lat. So help you God.
The old form of administering an oath in England,
generally in connection with other words, thus:
Ita te Deus adjuvet, et sacrosancta Dei Evangelia,
So help you God, and God's holy Evangelists. Ita
te Deus adjuvet et omnes sancti, So help you God
and all the saints. Willes, 338.
ITA UTERE TUO UT ALIENUM NON LIEDAS.
Use your own property and your own rights in
such a way that you will not hurt your neighbor,
or prevent him from enjoying his. Frequently
written, "Sic utere tuo," etc. (q. v.).
ITEM. Also; likewise; in like manner; again;
a second time. This word was formerly used to
mark the beginning of a new paragraph or divi-
sion after the first, whence is derived the common
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IULE
application of it to denote a separate or distinct
particular of an account or bill. Horwitz v. Nor-
ris, 60 Pa. 282; Baldwin v. Morgan, 73 Miss. 276,
18 So. 919; Callaghan v. Boyce, 17 Ariz. 433, 153
P. 773, 782; Innis, Pearce & Co. v. G. H. Poppen-
berg, Inc., 210 N.Y.S. 761, 762, 213 App.Div. 789,
One of the portions, equal or unequal, into which
anything is divided, or regarded as divided; some-
thing less than a whole; a number, quantity,
mass, or the like, regarded as going to make up,
with others or another, a larger number, quantity,
mass, etc., whether actually separate or not; a
piece, fragment, fraction, member, or constituent.
State ex rel. Wisconsin Telephone Co. v. Henry,
218 Wis. 302, 260 N.W. 486, 99 A.L.R. 1267. An ar-
ticle; a single detail of any kind. Board of Edu-
cation of Prince George's County v. County Com'rs
of Prince George's County, 131 Md. 658, 102 A.
1007, 1010. A separate entry in an account or a
schedule, or a separate particular in an enumera-
tion of a total. People v. Brady, 277 Ill. 124, 115
N.E. 204, 206.
The word is sometimes used as a verb. "The whole
[costs] in this case that was thus itemed to counsel."
Bunb. p. 164, case 233.
An "item" in an appropriation bill is an indivisible sum
of money dedicated to a stated purpose. Commonwealth
v. Dodson, 176 Va. 281, 11 S.E.2d 120, 124, 125, 127, 130,
131.
ITEMIZE. To set down by items. People v. Low-
den, 285 Ill. 618, 121 N.E. 188. To state each item
or article separately. Hartford Fire Ins. Co. v.
Walker, Tex.Civ.App., 153 S.W. 398, 400. Used
almost entirely with reference to accounts. J. F.
Rappell Co. v. City of Manitowoc, 182 Wis. 141, 195
N.W. 399, 401; Banner Oil & Gas Co. v. Gordon,
Tex.Civ.App., 235 S.W. 945, 948; Dorough v. Re-
liance Ins. Co., Tex.Civ.App., 289 S.W. 703, 704;
Board of Education of Prince George's County v.
County Com'rs of Prince George's County, 131 Md.
658, 102 A. 1007, 1010; Lewis v. National Fire Ins.
Underwriters, 136 Miss. 576, 101 So. 296, 297.
ITER. Lat.
In the Civil law. A way; a right of way belong-
ing as a servitude to an estate in the country,
(prcedium rusticum.) The right of way was of
three kinds: (1) iter, a right to walk, or ride on
horseback, or in a litter; (2) actus, a right to
drive a beast or vehicle; (3) via, a full right of
way, comprising right to walk or ride, or drive
beast or carriage. Heinec. § 408. Or, as some
think, they were distinguished by the width of the
objects which could be rightfully carried over the
way; e. g., via, 8 feet; actus, 4 feet, etc. Mackeld.
Rom. Law, § 290; Bract. fol. 232; 4 Bell, H. L.
Sc. 390.
In old English law. A journey, especially a cir-
cuit made by a justice in eyre, or itinerant jus-
tice, to try causes according to his own mission.
Du Cange; Bract. lib. 3, cc. 11, 12, 13.
In Maritime law. A way or route. The route
or direction of a voyage; the route or way that is
taken to make the voyage assured. Distinguished
from the voyage itself.
ITER EST JUS EUNDI, AMBULANDI HOMINIS;
NON ETIAM JUMENTUM AGENDI VEL VEHI-
CULUM. A. way is the right of going or walking,
and does not include the right of driving a beast of
burden or a carriage. Co. Litt. 56a; Inst. 2, 3,
pr.; Mackeld. Rom. Law, § 318.
ITERATIO. Lat. Repetition. In the Roman law,
a bonitary owner might liberate a slave, and the
quiritary owner's repetition (iteratio) of the pro-
cess effected a complete manumission. Brown.
ITINERA. Eyres, or circuits. 1 Reeve, Eng.
Law, 52.
ITINERANT. Wandering; traveling; applied to
justices who make circuits. Also applied in var-
ious statutory and municipal laws (in the sense
of traveling from place to place) to certain classes
of merchants, traders, and salesmen. Shiff v.
State, 84 Ala. 454, 4 So. 419; Twining v. Elgin,
38 Ill.App. 357; Rev.Laws Mass. 1902, p. 595, c.
65, § 1 (Gen. Laws, c. 101, § 1) ; West v. Mt. Ster-
ling, Ky., 65 S.W. 122.
ITINERANT PEDDLING. The going about of a
merchant from place to place, meeting and deal-
ing with his customers where he finds them.
Good Humor Corporation v. City of New York,
264 App.Div. 620, 36 N.Y.S.2d 85, 91.
ITINERANT VENDOR. This term is variously
defined in statutes; e. g., a person engaged in
transient business either in one locality or in trav-
eling from place to place selling goods, who, for
the purpose of carrying on such business, sells
goods at retail from a car. Rev. St. Me. c. 45, §
15 (Rev.St.1930, c. 46, § 25). See, also, Laws Mont.
1911, c. 110, § 1; St. Cal. 1903, p. 284, § 3.
ITS. This term does not necessarily import legal
ownership, but may signify merely possession, or
the temporary use of. Campbell v. Canadian
Northern Ry. Co., 124 Minn. 245, 144 N.W. 772,
IULE. In old English law. Christmas.
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JJ. The initial letter of the words "judge" and
"justice," for which it frequently stands as an
abbreviation. Thus, "J. A.," judge advocate; "J.
J.," junior judge; "L. J.," law judge; "P. J.,"
president judge; "F. J.," first judge; "A. J.," as-
sociate judge; "C. J.," chief justice or judge; "J.
P.," justice of the peace; "JJ.," judges or justices;
"J. C. P.," justice of the common pleas; "J. K.
B.," justice of the king's bench; "J. Q. B.," justice
of the queen's bench; "J. U. B.," justice of the up-
per bench.
This letter is sometimes used for "I," as the
initial letter of "Institutiones," in references to the
Institutes of Justinian.
JAC. An abbreviation for "Jacobus," the Latin
form of the name James; used principally in
citing statutes enacted in the reigns of the English
kings of that name; e. g., "St. 1 Jac. II." Used al-
so in citing the second part of Croke's reports;
thus, "Cro. Jac." denotes "Croke's reports of cases
in the time of James I."
JACENS. Lat. Lying in abeyance, as in the
phrase "hcereditas jacens," which is an inheri-
tance or estate lying vacant or in abeyance prior
to the ascertainment of the heir or his assumption
of the succession.
JACENS ILEREDITAS. See Hwreditas Jacens.
JACET IN ORE. Lat. In old English law. It
lies in the mouth. Fleta, lib. 5, c. 5, § 49.
JACK. A kind of defensive coat-armor worn by
horsemen in war; not made of solid iron, but of
many plates fastened together. Some tenants
were bound by their tenure to find it upon inva-
sion. Cowell.
JACOB'S LADDER. A ladder with sides of rope
and with wooden steps, frequently used on ship-
board. Maloney v. Cunard S. S. Co., 217 N.Y. 278,
111 N.E. 835, 836.
JACOBUS. A gold coin an inch and three-eighths
in diameter, in value about twenty-five shillings,
so called from James I., in whose reign it was first
coined. It was also called broad, laurel, and
broad-piece. Its value is sometimes put at twenty-
four shillings, but Macaulay speaks of a salary
of eight thousand Jacobuses as equivalent to ten
thousand pounds sterling. Hist. Eng. ch. xv.
JACTITATION. Boasting of something which is
challenged by another. Moz. & W. A false boast-
ing; a false claim; assertions repeated to the
prejudice of another's right.
The species of defamation or disparagement of
another's title to real estate known at common law
as "slander of title" comes under the head of jac-
titation, and in some jurisdictions (as in Louisi-
ana) a remedy for this injury is provided under
the name of an "action of jactitation."
The action in jactitation of title is governed by the rules
prescribed by the Code of Practice, under the title, "Pos-
sessory Actions," and differs materially from the common-
law action of slander of title. Bill v. Saunders, 139 La.
1037, 72 So. 727, 729.
In medical jurisprudence. Involuntary convul-
sive muscular movement; restless agitation or
tossing of the body to and fro. Leman V. Insur-
ance Co., 46 La.Ann. 1189, 15 So. 388, 24 L.R.A.
589.
Jactitation of a right to a church sitting appears
to be the boasting by a man that he has a right
or title to a pew or sitting in a church to which
he has legally no title.
Jactitation of marriage. In English ecclesiasti-
cal law. The boasting or giving out by a party
that he or she is married to some other, whereby
a common reputation of their matrimony may en-
sue. To defeat that result, the person may be put
to a proof of the actual marriage, failing which
proof, he or she is put to silence about it. 3 Bl.
Comm. 93. The Scotch suit of a declarator of put-
ting to silence is equivalent to jactitation of mar-
riage.
Jactitation of tithes is the boasting by a man
that he is entitled to certain tithes, to which he
has legally no title. Rog. Ecc. L. 482.
JACTIVUS. Lost by default; tossed away. Cow-
ell.
JACTURA. In the civil law. A throwing of goods
overboard in a storm; jettison. Loss from such a
cause. Calvin.
JACTUS. A throwing goods overboard to lighten
or save the vessel, in which case the goods so
sacrificed are a proper subject for general average.
Dig. 14, 2, "de lege Rhodia de Jactu;" Barnard
v. Adams, 10 How. 303, 13 L.Ed. 417.
JACTUS LAPILLI. The throwing down of a
stone. One of the modes, under the civil law,
of interrupting prescription. Where one person
was building on another's ground, and in this way
acquiring a right by usucapio, the true owner
challenged the intrusion and interrupted the pre-
scriptive right by throwing down one of the stones
of the building before witnesses called for the
purpose. Tray. Lat. Max.
JAIL. A gaol; a prison; a building designated
by law, or regularly used, for the confinement of
persons held in lawful custody. State v. Bryan,
89 N.C. 534; Adle v. Herald Co., Sup., 36 N.Y.S.2d
905, 907. See Gaol.
A "jail" is therefore distinguishable both in Taw and in
common understanding from a temporary place of deten-
tion, like a police station or lockup. People ex rel. Murphy
v. Holcomb, 181 N.Y.S. 780, 783, 111 Misc. 460. While the
primary function of a "jail" is a place of detention for
persons committed thereto, under sentence of a court, it is
also the proper and usual place where persons under arrest
or awaiting trial are kept until they appear in court and
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JEOPARDY
the charge is disposed of. Grab v. Lucas, 156 Wis. 504,
146 N.W. 504, 505.
JAIL DELIVERY. See Gaol,
JAIL LIBERTIES. See Gaol.
JAILER. A keeper or warden of a prison or jail.
Lefman v. Schuler, 317 Mo. 671, 296 S.W. 808, 814.
JAKE. A low colloquialism applied to liquor re-
puted to be composed of a mixture of Jamaica
ginger and some other beverage or beverages.
Skelton v. State, 31 Okl.Cr. 343, 239 P. 189, 190.
JAMB. A side post or side of a doorway, window,
opening, or fire place; a side or vertical piece of
any opening or aperture in a wall which helps to
bear an overhead member. Superior Skylight Co.
v. Zerbe Const. Co., D.C.N.Y., 5 F.2d 982, 986.
JAMBEAUX. In old English and feudal law.
Leg-armor. Blount.
JAMMA, JUMMA. In Hindu law. Total amount;
collection; assembly. The total of a territorial
assignment.
JAMMABUNDY, JUMMABUNDY. In Hindu law.
A written schedule of the whole of an assessment.
JAMMUNDLING. See Jamunlingi.
JAMPNUM. Furze, or grass, or ground where
furze grows; as distinguished from "arable,"
"pasture," or the like. Co. Litt. 5a.
JAMUNLINGI, JAMUNDILINGI. Freemen who
delivered themselves and property to the protec-
tion of a more powerful person, in order to avoid
military service and other burdens. Spelman. Al-
so a species of serfs among the Germans. Du
Cange. The same as commendati.
JANITOR. In old English law. A door-keeper.
Fleta, lib. 2, c. 24.
In modern law. A person employed to take
charge of rooms or buildings, to see that they
are kept clean and in order, to lock and unlock
them, and generally to care for them. Fagan v.
New York, 84 N.Y. 352; Kramer v. Industrial Acc.
Commission of State of California, 31 Cal.App.
673, 161 P. 278.
JANUS-FACED. An argument looking in both
directions at the same time, e. g., urging jurors
not to be swayed by sympathy, but adding that
any sympathy should be in favor of the arguing
counsel's client. Davis v. Franson, 296 P.2d 600,
606, 141 Cal.App.2d 263.
JAQUES. In old English law. Small money.
JASON CLAUSE. Clause in bills of lading which
obligates cargo owners to contribute in general
average in cases of danger, damage, or disaster
resulting from faults or errors in navigation or
in management of vessel, her machinery or ap-
purtenances, provided that ship owner shall have
exercised due diligence to make vessel in all re-
spects seaworthy, and to have her properly
manned, equipped, and supplied. Merklen v. John-
son & Higgins, D.C.N.Y., 3 F.Supp. 897, 898.
JAVELIN-MEN. Yeomen retained by the sheriff
to escort the judge of assize.
JAVELOUR. In Scotch law. Jailer or gaoler.
1 Pitc, Crim. Tr. pt. 1, p. 33.
JAY WALKING. Proceeding diagonally across a
street intersection. Gett v. Pacific Gas & Elec-
tric Co., 192 Cal. 621, 221 P. 376, 378.
Also, crossing a street between intersections, or at a
place other than a crosswalk.
JEDBURGH JUSTICE. Summary justice inflicted
upon a marauder or felon without a regular trial,
equivalent to "lynch law." So called from a
Scotch town, near the English border, where raid-
ers and cattle lifters were often summarily hung.
Also written "Jeddart" or "Jedwood" justice.
JEHOVAH'S WITNESSES. A religious sect
whose members profess allegiance to a visionary
heavenly kingdom and disclaim all duties of citi-
zenship which they deem in conflict with such
heavenly allegiance. U. S. ex rel. Hoce v. Mc-
Ginnis, D.C.W.Va., 56 F.Supp. 668.
JEMAN. In old records. Yeoman. Cowell;
Blount.
JENNY. With names of animals, often used to
denote a female; also short for "jenny ass," "jen-
ny wren," etc. Likewise short for "spinning jen-
ny." Webster, Diet.; O'Rear v. Richardson, 17
Ala.App. 87, 81 So. 865, 866.
JEOFAILE. L. Fr. I have failed; I am in error.
An error or oversight in pleading.
Certain statutes are called "statutes of amendments and
jeofailes" because, where a pleader perceives any slip in
the form of his proceedings, and acknowledges the error,
(jeofaile,) he is at liberty, by those statutes, to amend it.
:1 111.Comm. -107: 1 Sound. p. 228, no. 1.
Jeofaile is when the parties to any suit in pleading have
proceeded so far that they have joined issue which shall
be tried or is tried by a jury or inquest, and this pleading
or issue is so badly pleaded or joined that it will be error
if they proceed. Then some of the said parties may, by
their counsel, show it to the court, as well after verdict
given and before judgment as before the jury is charged.
And the counsel shall say : "This inquest ye ought not to
take." And if it be after verdict, then he may say : "To
judgment you ought not to go." Termer de la Ley.
JEOPARDY. Danger; hazard; peril.
The danger of conviction and punishment which
the defendant in a criminal action incurs when a
valid indictment has been found, and a petit jury
has been impaneled and sworn to try the case and
give a verdict in a court of competent jurisdiction.
State v. Nelson, 26 Ind. 368; State v. Emery, 5S
Vt. 84, 7 A. 129; People v. Terrill, 132 Cal. 497, 64
P. 894; Mitchell v. State, 42 Ohio St. 383; Grogan
v. State, 44 Ala. 9; Ex parte Glenn, C.C.W.Va., 111
F. 258; State v. McKee, 1 Bail., S.C., 655, 21 Am.
Dec. 499; State v. Yokum, 155 La. 846, 99 So. 621,
631.
The peril in which a prisoner is put when he is regularly
charged with a crime before a tribunal properly organized
and competent to try him. Com. v. Fitzpatrick, 121 Pa.
109, 15 A. 466, 1 L.R.A. 451; Peavey v. State, 153 Ga. 119,
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JEOPARDY
111 S.E. 420. The situation of *a defendant when the jury
is impaneled and sworn and the issues presented on a valid
indictment or information in a court of competent juris-
diction. State v. Thompson, 58 Utah 291, 199 P. 161, 163,
38 A.L.R. 697. The condition of a person when he is put
upon trial, before a court of competent jurisdiction, upon
an indictment or information which is sufficient in form
and substance to sustain a conviction, and a jury has been
charged with his deliverance. Allen v. State, 13 Okl.Cr.
533, 165 P. 745, 748, L.R.A.1917E, 1085; State v. Runyon,
100 W.Va. 647, 131 S.E. 466, 467; Commonwealth v. Grey,
249 Ky. 36, 60 S.W.2d 133.
Defendant is not in "jeopardy" until jury has been duly
impaneled and charged with his deliverance, but convic-
tion or acquittal by any competent tribunal, whether after
jury trial or not, satisfies requirement of jeopardy. Pepin
v. State ex rel. Chambers, 217 Wis. 568, 259 N.W. 410.
The terms "jeopardy of life and liberty for the
same offense," "jeopardy of life or limb," "jeopar-
dy for the same offense," "in jeopardy of punish.
ment," and other similar provisions used in the
various Constitutions, are to be construed as
meaning substantially the same thing. Stout v.
State, 130 P. 553, 556, 36 Okl. 744, 45 L.R.A.,N.S.,
884, Ann.Cas.1916E, 858.
JERGUER. In English law. An officer of the
custom-house who oversees the waiters. Techn.
Dict.
JERK. A sharply arrested pull, thrust, push, mo-
tion, a sudden movement or lurch;—"lurch" being
used, however, with specific reference to sidewise
movements. St. Louis Southwestern Ry. Co. of
Texas v. Farris, Tex.Civ.App., 166 S.W. 463; Tritle
v. Phillips Petroleum Co., 140 Kan. 671, 37 P.2d
996.
The ordinary jerks and jolts of a motorbus in starting
or stopping are among the usual incidents of travel, and
for injuries to passengers resulting from them the motor
carrier is not liable. Blashfield, Cyc. of Automobile Law
and Prac., Perm. Ed., § 2156.
JESSE. A large brass candlestick, usually hung
In the middle ox a church or choir. Cowell.
JET. Fr. In French law. Jettison. Ord. Mar.
liv. 3, tit. 8; Emerig. Traite des Assur. c. 12, § 40.
JETSAM. Goods which, by the act of the owner,
have been voluntarily cast overboard from a ves-
sel, in a storm or other emergency, to lighten the
ship. 1 C.B. 113.
Jetsam is where goods are cast into the sea, and there
sink and remain under water. 1 BI.Comm. 292.
The sense of "goods thrown overboard and sunk at sea"
is an error arising apparently in the attempt to distinguish
"jetsam" from "flotsam," the latter being properly wreck-
age of a ship or its cargo found floating on the sea. Web-
ster, Diet.
JETTISON. The act of throwing overboard from
a vessel part of the cargo, in case of extreme dan-
ger, to lighten the ship. The thing or things so
cast out; jetsam. Gray v. Waln, 2 Serg. & R.,
Pa., 254, 7 Am.Dec. 642; Butler v. Wildman, 3
Barn. & Ald. 326; Barnard v. Adams, 10 How. 303,
13 L.Ed. 417.
A carrier by water may, when in case of extreme peril
it is necessary for the safety of the ship or cargo, throw
overboard, or otherwise sacrifice, any or all of the cargo
or appurtenances of the ship. Throwing property over-
board for such purpose is called "jettison," and the loss
incurred thereby is called a "general average loss." Civil
Code Cal. § 2148; Civil Code Dak. § 1245 (Comp. Laws
1913, N.D. § 6225; Rev. Code 1919, S.D. § 1147).
JETTY. A projection of stone or other material
serving as a protection against the waves. Storm
v. Town of Wrightsville Beach, 189 N.C. 679, 128
S.E. 17, 19.
JEUX DE BOURSE. Fr. In French law. Specu-
lation in the public funds or in stocks; gambling
speculations on the stock exchange; dealings in
"options" and "futures."
A kind of gambling or speculation, which consists of
sales and purchases which bind neither of the parties to
deliver the things which are the object of the sale, and
which are settled by paying the difference in the value of
the things sold between the day of the sale and that ap-
pointed for delivery of such things. 1 Pardessus, Droit
Com. n. 162.
JEWEL. An ornament of the person, such as
ear-rings, pearls, diamonds, etc., prepared to be
worn. Com. v. Stephens, 14 Pick., Mass., 373;
Robbins v. Robertson, C.C.N.Y., 33 F. 710; Cav-
endish v. Cavendish, 1 Brown Ch. 409; Ramaley v.
Leland, 43 N.Y. 541, 3 Am.Rep. 728; Gile v. Libby,
36 Barb., N.Y., 77. An ornament made of precious
metal or a precious stone. Wagner v. Congress
Square Hotel Co., 115 Me. 190, 98 A. 660, 662.
JEWELRY. Jewels collectively. Wagner v. Con-
gress Square Hotel Co., 115 Me. 190, 98 A. 660, 662.
JEWISH SABBATH. A period which begins at
sundown Friday night and ends at sundown Sat-
urday night, and does not conform to a full statu-
tory day according to the Christian calendar. Co-
hen v. Webb, 175 Ky. 1, 192 S.W. 828, 829.
JIGGER BOSS. In mining parlance, a "pusher"
or kind of foreman engaged for the purpose of en-
couraging or hastening the men. Ryan v. Man-
hattan Big Four Mining Co., 38 Nev. 92, 145 P. 907,
908.
JITNEY. A self-propelled vehicle, other than a
street car, traversing the public streets between
certain definite points or termini, and, as a com-
mon carrier, conveying passengers at a five-cent
or some small fare, between such termini and
intermediate points, and so held out, advertised,
or announced. City of Memphis v. State, 133 Tenn.
83, 179 S.W. 631, 634, L.R.A.1916B, 1151, Ann.Cas.
1917C, 1056. A motor vehicle carrying passengers
for fare. Ft. Lee, etc., Transp. Co. v. Borough of
Edgewater, 99 N.J.Eq. 850, 133 A. 424, 425. Also
called "jitney bus." Huston v. City of Des Moines,
176 Iowa 455, 156 N.W. 883, 888.
JOB. The whole of a thing which is to be done.
"To build by plot, or to work by the job, is to
undertake a building for a certain stipulated
price."  Civ.Code La. art. 2727 (Civ.Code, art.
2756).
JOBBER. One who buys and sells goods for oth-
ers; one who buys or sells on the stock exchange;
a dealer in stocks, shares, or securities. One who
buys and sells articles in bulk and resells them to
dealers. A merchant buying and selling in job
lots. Wasserstrom v. Cohen, Frank & Co., 165
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App.Div. 171, 150 N.Y.S. 638, 639. A sort of mid-
dleman. Great Atlantic & Pacific Tea Co. v. Cream
of Wheat Co., C.C.A.N.Y., 227 F. 46, 47.
JOBMASTER. In English law, one who carries
on the business of letting out carriages and horses
or other vehicles with drivers for hire; a livery
stable keeper. Hyman v. Nye, 6 Queen's Bench,
685.
JOCALIA. In old English law. Jewels. This
term was formerly more properly applied to those
ornaments which women, although married, call
their own. When these jocalia are not suitable
to her degree, they are assets for the payment of
debts. 1 Rolle, Abr. 911.
JOCELET. A little manor or farm. Cowell.
JOCKEY CLUB. An association of persons for
the purpose of regulating all matters connected
with horse racing. See Corrigan v. Jockey Club,
2 Misc. 512, 22 N.Y.S. 394.
JOCUS. In old English law. A game of hazard.
Reg. Orig. 290.
JOCUS PARTITUS. In old English practice. A
divided game, risk, or hazard. An arrangement
which the parties to a suit were anciently some-
times allowed to make by mutual agreement upon
a certain hazard, as that one should lose if the
case turned out in a certain way, and, if it did
not, that the other should gain. Bract. fols. 211b,
379b, 432, 434, 200b.
JOHN DOE. A fictitious name frequently used to
indicate a person for the purpose of argument or
illustration, or in the course of enforcing a fiction
in the law. The name which was usually given to
the fictitious lessee of the plaintiff in the mixed
action of ejectment. He was sometimes called
"Goodtitle." So the Romans had their fictitious
personages in law proceedings, as Titius, Seius.
The name "John Doe" is, and for some centuries has
been, used in legal proceedings as a fictitious name to des-
ignate a party until his real name can be ascertained.
State v. Rossignol, 22 Wash.2d 19, 153 P.2d 882, 885.
JOIN. To unite; to come together; to combine or
unite in time, effort, action; to enter into an al-
liance. Lowery v. Westheimer, 58 Okl. 560, 160 P.
496, 500.
JOINDER. Joining or coupling together; unit-
ing two or more constituents or elements in one;
uniting with another person in some legal step or
proceeding; union; concurrence.
Joinder in demurrer. When a defendant in an
action tenders an issue of law, (called a "demur-
rer,") the plaintiff, if he means to maintain his
action, must accept it, and this acceptance of the
defendant's tender, signified by the plaintiff in a
set form of words, is called a "joinder in demurr-
er." Brown; Co. Litt. 71 b; Thompson v. Goude-
lock, 10 Rich., S.C., 49.
Joinder in issue. In pleading. A formula by
which one of the parties to a suit joins in or ac-
cepts an issue in fact tendered by the opposite
party. Steph. Pl. 57, 236. More commonly termed
a "similiter." (q. v.)
Joinder in pleading. Accepting the issue, and
mode of trial tendered, either by demurrer, error,
or issue, in fact, by the opposite party.
Joinder of actions. This expression signifies the
uniting of two or more demands or rights of ac-
tion in one action; the statement of more than
one cause of action in a declaration. Sickler v.
City of Broken Bow, 143 Neb. 542, 10 N.W.2d 462,
464.
Joinder of error. In proceedings on a writ of
error in criminal cases, the joinder of error is a
written denial of the errors alleged in the assign-
ment of errors. It answers to a joinder of issue
in an action.
Joinder of issue. The act by which the parties
to a cause arrive at that stage of it in their plead-
ings, that one asserts a fact to be so, and the oth-
er denies it.
Joinder of offenses. The uniting of several dis-
tinct charges of crime in the same indictment or
prosecution.
Joinder of parties. The uniting of two or more
persons as co-plaintiffs or as co-defendants in one
suit.
Misjoinder. The improper joining together of
parties to a suit, as plaintiffs or defendants, or of
different causes of action. Burstall v. Beyfus, 53
L.J.Ch. 567; Phenix Iron Foundry v. Lockwood, 21
R.I. 556, 45 A. 546.
Misjoinder of actions is the joining several de-
mands which the law does not permit to be joined,
to enforce by one proceeding several distinct, sub-
stantive rights of recovery. Gould, Pl. c. 4, § 98;
Archb. Civ. Pl. 61; Dane, Abr. In equity, it is
the joinder of different and distinct claims against
one defendant; Adams, Eq. 309; 7 Sim. 241; New-
land v. Rogers, 3 Barb. Ch., N.Y., 432.
Misjoinder of parties is the joining, as plain-
tiffs or defendants, parties who have not a joint
interest. Billy v. McGill, 113 Okl. 153, 240 P. 119,
121; Gagle v. Besser, 162 Iowa 227, 144 N.W. 3, 4.
Misjoinder in a criminal prosecution is the
charging in separate counts of separate and dis-
tinct offenses arising out of wholly different trans-
actions having no connection or relation with each
other. Optner v. U. S., C.C.A.Mich., r3 F.2d 11, 13.
Nonjoinder. The omission to join some person
as party to a suit, whether as plaintiff or defend-
ant, who ought to have been so joined, according
to the rules of pleading and practice. Bardock
Iron & Steel Co. v. Tenenbaum, 136 Va. 163, 118
S.E. 502, 505.
JOINT. United; combined; undivided; done by
or against two or more unitedly; shared by or be-
tween two or more; coupled together in interest
or liability.
The term is used to express a common property interest
enjoyed or a common liability incurred by two or more
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persons. Thus, it is one In which the obligors (being two
or more in number) bind themselves jointly but not sever-
ally, and which must therefore be prosecuted in a joint
action against them all;-distinguished from "joint and
several" obligation.
A place of meeting or resort for persons engaged in evil
and secret practices of any kind, as a tramps' joint, an
"opium joint," or, generally speaking, a rendezvous for
persons of evil habits and practices. State v. Shoaf, 179
N.C. 744, 102 S.E. 705, 706, 9 A.L.R. 426.
In masonry, the permanent meeting surface of two
bodies, as stones or bricks, held together by cement or
otherwise, and, in paving blocks, the space between the
side faces of the blocks brought together or nearly in
touch. Central Union Stock Yards Co. v. Ualde Asphalt
Paving Co., 82 N.J.Eq. 246, 87 A. 235, 239.
As used in income tax statute authorizing filing of joint
return by spouses, means that both spouses should be li-
able for resulting tax. Moore v. United States, Ct.C1., 37
F.Supp. 136, 140.
As to joint "Adventure," "Ballot," "Committee,"
"Contract," "Covenant," "Creditor," "Fiat," "Fine,"
"Indictment," "Obligation," "Obligee," "Obligor,"
"Owner," "Rate," "Resolution," "Session," "Ten-
ancy," "Tenants," "Tortfeasor," "Trespass," "Tres-
passers," `Trustees," and "Will," see those titles.
As to joint-stock banks, see Bank; joint-stock
company, see Company; joint-stock corporation,
see Corporation.
JOINT ACCOUNT. An account in two or more
names. Harbour v. Harbour, 207 Ark. 551, 181
S.W.2d 805, 807.
In order to bank that "my checking account be
made joint" with another "for him to check on
only in case of my death," means that other person
should take as survivor as joint tenant. First
Nat. Bank v. Mulich, 83 Colo. 518, 266 P. 1110, 1111.
JOINT ACTION. An action brought by two or
more as plaintiffs or against two or more as de-
fendants.
JOINT AND SEVERAL. A liability is said to be
joint and several when the creditor may sue one
or more of the parties to such liability separately,
or all of them together at his option. Dicey, Par-
ties 230.
A joint and several bond or note is one in which the
obligors or makers bind themselves both jointly and in-
dividually to the obligee or payee, so that all may be sued
together for its enforcement, or the creditor may select
one or more as the object of his suit. See Mitchell v. Dar-
ricott, 3 Brev., S.C., 145; Rice v. Gove, 22 Pick., Mass.,
158, 33 Am.Dec. 724.
JOINT AUTHORSHIP. As to literary property,
where there exists a common design to the exe-
cution of which several persons contribute. Mere
alterations, additions or improvements, whether
with or without the sanction of the author, will
not entitle the person making them to claim to be
a joint author of the work. 18 C.J.S., Copyright
and Literary Property, § 11, p. 145.
Joint labor in furtherance of a common design.
Edward B. Marks Music Corporation v. Jerry
Vogel Music Co., C.C.A.N.Y., 140 F.2d 266, 267.
JOINT CAUSE OF ACTION. This term, as used
in Equity Rule 26 (see Rules of Civil Procedure,
Rules 18, 20, 82, 28 U.S.C.A.), does not mean a
technical legal privity, such as a joint contract;
but the rule will be satisfied where there is a
single question of law and fact common to all the
complainants, as where in a suit to quiet title they
claim separate parcels of land under a common
source of title. Commodores Point Terminal Co.
v. Hudnall, D.C.Fla., 283 F. 150, 171.
JOINT DEBTORS. Persons united in a joint lia-
bility or indebtedness. Two or more persons joint-
ly liable for the same debt. See Robertson v.
Smith, 18 Johns., N.Y., 459, 9 Am.Dec. 227; Ex
parte Zeigler, 83 S.C. 78, 64 S.E. 513, 916, 21 L.R.A.,
N.S., 1005.
JOINT DEBTORS' ACTS. Statutes enacted in
many of the states, which provide that judgment
may be given for or against one or more of sev-
eral plaintiffs, and for or against one or more of
several defendants, and that, "in an action against
several defendants, the court may, in its discre-
tion, render judgment against one or more of
them, leaving the action to proceed against the
others, whenever a several judgment is proper."
The name is also given to statutes providing that
where an action is instituted against two or more
defendants upon an alleged joint liability, and
some of them are served with process, but juris-
diction is not obtained over the others, the plaintiff
may still proceed to trial against those who are be-
fore the court, and, if he recovers, may have judg-
ment against all of the defendants whom he shows
to be jointly liable. 1 Black, Judgm. §§ 208, 235.
And see Hall v. Lanning, 91 U.S. 168, 23 L.Ed. 271.
JOINT ENTERPRISE. Also called "common en-
terprise." The joint prosecution of common pur-
pose under such circumstances that each has
authority express or implied to act for all in re-
spect to the control, means or agencies em-
ployed to execute such common purpose. Hines
v. Welch, Tex.Civ.App., 229 S.W. 681, 683. Green-
well's Adm'r v. Burba, 298 Ky. 255, 182 S.W.2d
436, 441; Illingworth v. Madden, 135 Me. 159, 192
A. 273, 276, 110 A.L.R. 1090. An enterprise par-
ticipated in by associates acting together. How-
ard v. Zimmerman, 120 Kan. 77, 242 P. 131, 132.
There must be a community of interests in the
objects or purposes of the undertaking, and an
equal right to direct and govern the movements
and conduct of each other with respect thereto;
each must have some voice and right to be heard
in its control or management. St. Louis & S. F.
R. Co. v. Bell, 58 Okl. 84, 159 P. 336, 337, L.R.A.
1917A, 543; Trumpfeller v. Crandall, 130 Me.
279, 155 A. 646, 650; Murphy v. Keating, 204 Minn.
269, 283 N.W. 389, 392, 393; Bloom v. Leech, 120
Ohio St. 239, 166 N.E. 137, 138.
JOINT ESTATE. "Joint estate" involves unity of
interest, unity of title, unity of time, and unity of
possession, and joint tenants must have the same
interest accruing under the same conveyance,
commencing at the same time, and held under the
same undivided possession. Deslauriers v. Senes-
ac, 331 Ill. 437, 163 N.E. 327, 329, 62 A.L.R. 511.
At common law, estates in which there were a plurality
of tenants were described as "joint-estates" which designa-
tion includes estates in coparcenary, tenancies in common
and joint tenancies, within which class are included ten-
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ancies by the entirety but the terms is not synonymous
with "joint tenancies". Mosser v. Dolsay, 132 N.J.Eq.
121, 27 A.2d 155, 157.
JOINT EXECUTORS. Co-executors; two or
more who are joined in the execution of a will.
See, also, Coexecutor.
JOINT FEASORS IN PARI DELICTO. Phrase
means as between persons who by concert of ac-
tion intentionally commit the wrong complained
of; there is no right of contribution. Commercial
Cas. Ins. Co. v. Leonard, 210 Ark. 575, 196 S.W.2d
919, 920.
JOINT INDUSTRY OF HUSBAND AND WIFE.
This phrase, as applied in Oklahoma statutes to
property passing by descent, means the industry
of a husband and wife each, in his or her recog-
nized sphere of marital activity, and not that both
must pursue jointly the same business or calling.
In re Stone's Estate, 86 Okl. 33, 206 P. 246, 247.
See, also, Chamberlain v. Chamberlain, 121 Okl.
145, 247 P. 684, 687.
JOINT INTEREST. This term within federal
rule requiring persons having a joint interest to
be made parties, refers to parties designated as
necessary or indispensable under former practice,
and means an interest which must be directly af-
fected by adjudication in the case. Platte County
v. New Amsterdam Cas. Co., D.C.Neb., 6 F.R.D.
475, 482.
JOINT INVENTIONS. These are made when two
or more persons jointly work or collaborate in de-
vising and putting into practical form the subject-
matter of patent. Altoona Publix Theatres v.
American Tri-Ergon Corporation, C.C.A.Pa., 72 F.
2d 53, 56.
JOINT LIABILITY. One wherein joint obligor
has right to insist that co-obligor be joined as a
codefendant with him, that is, that they be sued
jointly. Schram v. Perkins, D.C.Mich., 38 F.Supp.
404, 407.
JOINT LIVES. This expression is used to desig-
nate the duration of an estate or right which is
granted to two or more persons to be enjoyed so
long as they both (or all) shall live. As soon as
one dies, the interest determines. See Highley v.
Allen, 3 Mo.App. 524.
JOINT NEGLIGENCE. In case of "joint negli-
gence" of several people, proximately causing ac-
cident, they act together in concert and either do
something together which they should not do or
fail to do something which they are together ob-
ligated to do under circumstances. Russo v. Au-
coin La.App., 7 So.2d 744, 747.
JOINT OFFENSE. One offense committed by
two or more persons jointly. Jacoby v. State,
212 Ind. 465, 8 N.E.2d 978, 979; State ex rel.
Flaherty v. Ermston, 209 Ind. 117, 197 N.E. 908,
911.
JOINT POLICY. Insurance on lives of spouses,
for benefit of survivor. O'Boyle v. Home Life Ins.
Co. of America, D.C.Pa., 20 F.Supp. 33, 36; Ken-
sington Nat. Bank of Philadelphia v. Sampson, 149
Pa.Super. 43, 26 A.2d 115, 118. .
JOINT STOCK INSURANCE COMPANY. An in
surance company having a subscribed capital and
policyholders having nothing to do with manage-
ment. Ohio Farmers Indemnity Co. v. Commis-
sioner of Internal Revenue, C.C.A.6, 108 F.2d 665,
667.
JOINT TORT. Where two or more persons owe
to another the same duty and by their common
neglect such other is injured, the tort is "joint."
Boyd v. Maxwell, 190 S.C. 103, 2 S.E.2d 395, 397;
Leishman v. Brady, 9 W.W.Harr. 559, 3 A.2d 118,
120; Walder v. Manahan, 21 N.J.Misc. 1, 29 A.2d
395, 396.
JOINT VENTURE. See Adventure.
JOINTIST. A person established in a definite
place of business, for the purpose of illegally sell-
ing intoxicants. Scriven v. City of Lebanon, 99
Kan. 602, 162 P. 307, 309, L.R.A.1917C, 460. One
who opens up, conducts, or maintains any place for
the unlawful sale of intoxicating liquors. Rem.
Comp.Stat.Wash. § 7328; State v. Pistona, 127
Wash. 171, 219 P. 859, 860.
JOINTLY. Unitedly, combined or joined together
in unity of interest or liability. Soderberg v. At-
lantic Lighterage Corporation, D.C.N.Y., 15 F.2d
209. In a joint manner; in concert; not separate-
ly; in conjunction. Reclamation Dist. v. Parvin,
67 Cal. 501, 8 P. 43; Case v. Owen, 139 Ind. 22, 38
N.E. 395, 47 Am.St.Rep. 253; White v. Powell, 246
Ala. 356, 20 So.2d 467, 469. To be or become liable
to a joint obligation; Arndt v. Brockhausen, 332
Pa. 416, 3 A.2d 384, 386; Kaspar American State
Bank v. Oul Homestead Ass'n, 301 Ill.App. 326, 22
N.E.2d 785, 786; Creighton v. Continental Roll &
Steel Foundry Co., 155 Pa.Super. 165, 38 A.2d 337,
342. Participated in or used by two or more, held
or shared in common. Wunderlich v. Bleyle, 96 N.
J.Eq. 135, 125 A. 386, 388. These are the non-
technical meanings of the word, which it frequent-
ly has in wills, as opposed to its technical significa-
tion creating a joint tenancy. Overheiser v. Lack-
ey, 207 N.Y. 229, 100 N.E. 738, Ann.Cas.1914C, 229.
Persons are "jointly bound" in a bond or note when
both or all must be sued in one action for its enforcement,
not either one at the election of the creditor.
JOINTLY ACQUIRED PROPERTY. Property
accumulated by joint industry of husband and wife
during marriage. Tobin v. Tobin, 89 Okl. 12, 213
P. 884; Bruce v. Bruce, 141 Oki. 160, 285 P. 30, 36.
JOINTLY AND SEVERALLY. See Joint and Sev-
eral.
JOINTRESS, JOINTURESS. A woman who has
an estate settled on her by her husband, to hold
during her life, if she survive him. Co.Litt. 46.
JOINTURE. A freehold estate in lands or tene-
ments secured to the wife, and to take effect on
the decease of the husband, and to continue dur-
ing her life at the least, unless she be herself the
cause of its determination. Vance v. Vance, 21
Me. 369.
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A competent livelihood of freehold for the wife,
of lands and tenements, to take effect, in profit or
possession, presently after the death of the hus-
band, for the life of the wife at least. Comstock
v. Comstock, 146 Ark. 266, 225 S.W. 621, 622; Co.
Litt. 36b; 2 Bl.Comm. 137; Gercke v. Gercke,
331 Ill. 413, 163 N.E. 323, 325. A competent live-
lihood for the wife in the husband's property to
take effect after his death; it is an estate con-
veyed or devised to the wife in lieu of dower and
it must be in satisfaction of it. Maynard's Adm'r
v. Maynard, 285 Ky. 75, 146 S.W.2d 343, 344.
A jointure strictly signifies a joint estate limited to both
husband and wife, and such was its original form; but, in
its more usual form, it is a sole estate limited to the wife
only, expectant upon a life-estate in the husband. 2 Bl.
Comm. 137; 1 Steph.Comm. 255.
In England, before the time of Henry VIII, in order to
R rotect a wife who was deprived of dower by conveyances
to uses, it was the usual custom of the husband before
marriage to take an estate from his feoffees and limit it
to himself and his intended wife for their lives in joint
tenancy or jointure to protect the wife in case of his
death, and St. 27 Henry VIII prohibited the widow from
having both dower and jointure, which has been continued
as part of law by Acts Va. 1785, c. 65 (1 Hening's St. at
Large, p. 162), Rev. Code 1819, c. 107, and Code 1849, c.
110 (Code 1930, § 5117 et seq.). Jacobs v. Jacobs, 100 W.
Va. 585, 131 S.E. 449, 453.
JOKER. In political usage, a clause in legisla-
tion that is ambiguous or apparently immaterial,
inserted to render it inoperative or uncertain with-
out arousing opposition at the time of passage.
Bennet v. Commercial Advertiser Ass'n, 230 N.Y.
125, 129 N.E. 343, 344.
JOLT. A sudden shock or jerk; a jolting motion,
as in a vehicle moving over a rough street or
highway; the effect produced by a sudden start
or quick increase in tile speed of a vehicle. 48
C.J.S. p. 939. See Jerk, supra.
JONCARIA, or JUNCARIA. In old English law.
Land where rushes grow. Co.Litt. 5a.
JORNALE. In old English law. As much land
as could be plowed in one day. Spelman.
JOSH. To ridicule or tease, or make fun of in a
joke, to lure or tease by misrepresenting the facts.
State v. Powers, 181 Iowa 452, 164 N.W. 856, 861.
JOSTLE. To push or crowd in passing. Baker
v. Chicago, B. & Q. R. Co., 327 Mo. 986, 39 S.W.2d
535, 543.
JOUIR. A French word, meaning to enjoy; to
have enjoyment of; or to possess. Allison v.
Maroun, 193 La. 286, 190 So. 408, 411.
JOUR. A French word, signifying "day."
It is used in our old law-books; as "tout fours," for-
ever. It is also frequently employed in the composition
of words: as, journal, a daybook ; journey-man, a man
who works by the day; journeys account.
JOUR EN BANC. A day in Banc. Distinguished
from "jour en pays," (a day in the country,) oth-
erwise called "jour en nisi prius."
JOUR IN COURT. In old practice. Day in court;
day to appear in court; appearance day. "Every
process gives the defendant a day in court." Hale,
Anal. § 8.
JOURNAL. A daily book; a book in which en-
tries are made or events recorded from day to day.
In maritime law, the journal (otherwise called "log" or
"log-book") is a book kept on every vessel, which con-
tains a brief record of the events and occurrences of each
day of a voyage, with the nautical observations, course of
the ship, account of the weather, etc. In the system of
double-entry bookkeeping, the journal is an account-book
into which are transcribed, daily or at other intervals,
the items entered upon the day-book, for more convenient
posting into the ledger. In the usage of legislative bodies,
the journal is a daily record of the proceedings of either
house. It is kept by the clerk, and in it are entered the
appointments and actions of committees, introduction of
bills, motions, votes, resolutions, etc., in the order of their
occurrence. See Montgomery Beer Bottling Works v. Gas-
ton, 126 Ala. 425, 28 So. 497, 51 L.R.A. 396, 85 Arn_St.Rep.
42.
The daily printed pamphlets which contain the record of
the proceedings of each house of the Legislature are the
"journals" of the respective houses. Amos v. Moseley, 74
Fla. 555, 77 So. 619, 621, L.R.A.1918C, 482.
A "journal" is a permanent record, and the daily min-
utes kept by the secretary of the Senate or the journal
clerk from which the permanent record is finally made up,
does not constitute a part of the journal. Niven v. Road
Improvement Dist. No. 14 of Jefferson County, 132 Ark.
240, 200 S.W. 997, 998.
JOURNAL ENTRY RULE. Regularity of enact-
ment of statute may be inquired into by examin-
ing legislative journals. Freeman v. Goff, 206
Minn. 49, 287 N.W. 238, 240.
JOURNEY. Originally, a day's travel. The word
is now applied to a travel by land from place to
place, without restriction of time. But, when thus
applied, it is employed to designate a travel which
is without the ordinary habits, business, or duties
of the person, to a distance from his home, and be-
yond the circle of his friends or acquaintances.
Gholson v. State, 53 Ala. 521, 25 Am.Rep. 652.
JOURNEY–HOPPERS. In English law. Regra-
tors of yarn. 8 Hen. VI. c. 5.
JOURNEYMAN. A workman hired by the day,
or other given time. Hart v. Aldridge, 1 Cowp.
56; Butler v. Clark, 46 Ga. 468.
JOURNEYS ACCOUNT, In English practice. A
new writ which the plaintiff was permitted to sue
out within a reasonable time after the abatement,
without his fault, of the first writ. This time was
computed with reference to the number of days
which the plaintiff must spend in journeying to
reach the court; hence the name of journeys ac-
count, that is, journeys accomptes or counted.
Co.Litt. fol. 9b; English v. T. H. Rogers Lumber
Co., 68 Okl. 238, 173 P. 1046, 1048.
This mode of proceeding has fallen into disuse, the prac-
tice now being to permit that writ to be quashed, and to
sue out another. See Termes de la Ley; Bacon, Abr.
Abatement (Q) ; 14 Viner, Abr. 558; 4 Com.Dig. 714; 7
M. & G. 762; Richards v. Ins. Co., 8 Cranch, 84, 3 L. Ed.
496.
JOUSTS. See Justs,
JUBERE. Lat. In the civil law. To order, di-
rect, or command. Calvin. The word jubeo (I or-
der,) in a will, was called a "word of direction,"
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JUDEX
as distinguished from "precatory words." Cod.
6, 43, 2.
To assure or promise.
To decree or pass a law.
JUBILACION. In Spanish law. The privilege of
a public officer to be retired, on account of in-
firmity or disability, retaining the rank and pay
of his office (or part of the same) after twenty
years of public service, and on reaching the age of
fifty.
JUDZEUS, JUDEUS. Lat. A Jew.
JUDAISMUS. The religion and rites of the Jews.
Du Cange. A quarter set apart for residence of
Jews. Du Cange. A usurious rate of interest.
1 Mon.Angl. 839; 2 Mon.Angl. 10,665. Sex marcus
sterlingorum ad acquietandam terram prcedictum
de Judaismo, in quo fuit timpignorata. Du Cange.
An income anciently accruing to the king from the
Jews. Blount.
JUDEX. Lat.
In Roman law. A private person appointed by
the prtor, with the consent of the parties, to try
and decide a cause of action commenced before
him. He received from the praetor a written for-
mula instructing him as to the legal principles ac-
cording to which the action was to be judged.
Calvin. Hence the proceedings before him were
said to be in judicio, as those before the prtor
were said to be in jure. A judge who conducted
the trial from beginning to end; magistrates.
The practice of calling in judices was disused before
Justinian's time: therefore, in the Code, Institutes, and
Novels, judex means judge in its modern sense. Heinec-
eh's, Elem. Jur.Civ. § 1327. The term judex is used with
very different significations at different periods of Roman
law.
In later and modern Civil law. A judge in the
modern sense of the term.
In old English law. A juror. A judge, in modern
sense, especially—as opposed to justiciarius,  e.,
a common-law judge—to denote an ecclesiastical
judge. Bract. fols. 401, 402.
JUDEX A QUO. In modern civil law. The judge
from whom, as judex ad quem is the judge to
whom, an appeal is made or taken. Halifax, Civ-
il Law, b. 3, c. 11, no. 34.
JUDEX AD QUEM. A judge to whom an appeal
is taken.
JUDEX PEQUITATEM SEMPER SPECTARE DE-
BET. A judge ought always to regard equity.
Jenk. Cent. p. 45, case 85.
JUDEX ANTE OCULOS IEQUITATEM SEMPER
HABERE DEBET. A judge ought always to have
equity before his eyes. Jenk. Cent. p. 58.
JUDEX BONUS NIHIL EX ARBITRIO SUO FA-
CIAT, NEO PROPOSITO DOMESTICIE VOLUN-
TATIS, SED JUXTA LEGES ET JURA PRONUN-
CIET. A good judge should do nothing of his
own arbitrary will, nor on the dictate of his per-
sonal inclination, but should decide according to
law and justice. 7 Coke, 27a.
JUDEX DAMNATUR CUM NOCENS ABSOLVI-
TUR. The judge is condemned when a guilty
person escapes punishment.
JUDEX DATUS. In Roman law. A judge given,
that is, assigned or appointed, by the praetor to
try a cause.
JUDEX DEBET JUDICARE SECUNDUM ALLE-
GATA ET PROBATA. The judge ought to de-
cide according to the allegations and the proofs.
JUDEX DELEGATUS. A delegated judge; a spe-
cial judge.
JUDEX EST LEX LOQUENS. A judge is the law
speaking, [the mouth of the law.] 7 Coke, 4a.
JUDEX FISCALIS. A fiscal judge; one having
cognizance of matters relating to the fiscus, (q. v.).
JUDEX HABERE DEBET DUOS SALES,—SAL-
EM SAPIENTIIE, NE SIT INSIPIDUS; ET SAL-
EM CONSCIENTIIE, NE SIT DIABOLUS. A
judge should have two salts,—the salt of wisdom,
lest he be insipid [or foolish]; and the salt of
conscience, lest he be devilish. 3 Inst. 147; Bart.
Max. 189.
JUDEX NON POTEST ESSE TESTIS IN PRO-
PRIA CAUSA. A judge cannot be a witness in
his own cause. 4 Inst. 279.
JUDEX NON POTEST INJURIAM SIBI DATAM
PUNIRE. A judge cannot punish a wrong done
to himself. See 12 Coke, 114.
JUDEX NON REDDIT PLUS QUAM QUOD PET-
ENS IPSE REQUIRIT. A judge does not give
more than what the complaining party himself
demands. 2 Inst. 286.
JUDEX ORDINARIUS. In the civil law. An or-
dinary judge; one who had the right of hearing
and determining causes as a matter of his own
proper jurisdiction, (ex propria jurisdictione,) and
not by virtue of a delegated authority. Calvin.
According to Blackstone judices ordinarii deter-
mined only questions of fact. 3 B1.Comm. 315.
JUDEX PEDANEUS. In Roman law. Inferior
judge; deuuty judge. The judge who was com-
missioned by the praetor to hear a cause was so-
called, from the low seat which he anciently oc-
cupied at the foot of the praetor's tribunal.
JUDEX QUIESTIONIS. A magistrate who de-
cided the law of a criminal case, when the prcetor
himself did not sit as a magistrate. Morey, Rom.
L. 88. The director of the criminal court under
the presidency of the prcetor. Harper's Lat. Dict.;
Cic. Brut. 76, 264.
JUDEX SELECTUS. A select or selected judex
or judge. The judges in criminal suits selected
by the prcetor. Harper's Lat.Dict.; Cic.Verr. 2,
2, 13, § 32. These judices selecti were used in
criminal causes, and between them and modern
jurors many points of resemblance have been no-
ticed; 3 Bla.Comm. 366.
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JUDGE
JUDGE. An officer so named in his commission,
who presides in some court; a public officer, ap-
pointed to preside and to administer the law in a
court of justice; the chief member of a court,
and charged with the control of proceedings and
the decision of questions of law or discretion.
Todd v. U. S., 15 S.Ct. 889, 158 U.S. 278, 39 L.Ed.
982; Foot v. Stiles, 57 N.Y. 405; State v. Le Blond,
108 Ohio St. 126, 140 N.E. 510, 512. A public of-
ficer who, by virtue of his office, is clothed with
judicial authority. State ex rel. Mayer v. City of
Cincinnati, 60 Ohio App. 119, 19 N.E.2d 902. Pre-
siding officer of court. State v. Horn, 336 Mo. 524,
79 S.W.2d 1044, 1045. Any officer authorized to
function as or for judge in doing specified acts.
In re Roberts' Estate, 49 Cal.App.2d 71, 120 P.2d
933, 937.
The term is sometimes held to include all officers ap-
pointed to decide litigated questions while acting in that
capacity, including justices of the peace, and even jurors
who are judges of the facts; Corn. v. Dallas, 4 Dall. 229, 1
L.Ed. 812; In re Hess, 20 N.J.Misc. 12, 23 A.2d 298, 300,
301; Webster v. Boyer, 81 Or. 485, 159 P. 1166, Ann.Cas.
1918D, 988; but see, contra, Alcorn v. Fellows, 102 Conn.
22, 127 A. 911, 915; Vollmer v. Board of Com'rs of Dubois
County, 53 Ind.App. 149, 101 N.E. 321, 322. In ordinary
legal use, however, the term is limited to the sense of the
first of the definitions here given, People v. Wilson, 15 Ill.
388; and it has been held that a surrogate is not a "judge"
within a statute providing for additional compensation to
a judge for his services in drawing jurors, People ex rel.
Noble v. Mitchel, 170 App.Div. 379, 155 N.Y.S. 660, 662;
nor are United States commissioners judges, although they
at times act in a quasi judicial capacity and exercise the
power of a court, in so far as an act of Congress has con-
ferred specific authority or imposed the performance of a
special duty, United States v. Jones, D.C.N.Y., 230 F. 262,
264.
As used in Chandler Act, means the judge of court of
bankruptcy. London v. O' Dougherty, C.C.A.2, 102 F.2d
524, 525; Dickinson Industrial Site v. Cowan, Ill., 309 U.S.
382, 60 S.Ct. 595, 597, 84 L.Ed. 819. As used in statute
authorizing introduction in criminal proceeding of a writ-
ing written for purpose of comparison under supervision
of a judge, means judge of a court of record, and does not
include a justice. State v. Shade, 119 W.Va. 600, 195 S.E.
338.
"Judge" and "court", are often synonymous or inter-
changeable. In re Slattery, 310 Mich. 458, 17 N.W.2d 251,
259; Commonwealth v. Shawell, 325 Pa. 497, 191 A. 17, 19,
but see holding that a judge is not a court, State ex rel.
Mayer v. City of Cincinnati, 60 Ohio App. 119, 19 N.E.2d
902.
"Judge" and "justice" (q. v.) are often used in sub-
stantially the same sense.
JUDGE ADVOCATE. An officer of a court-mar-
tial, whose duty is to swear in the other members
of the court, to advise the court, and to act as
the public prosecutor; but he is also so far the
counsel for the prisoner as to be bound to protect
him from the necessity of answering criminating
questions, and to object to leading questions when
propounded to other witnesses.
JUDGE ADVOCATE GENERAL. The adviser of
the government in reference to courts-martial and
other matters of military law. In England, he is
generally a member of the house of commons and
of the government for the time being.
JUDGE DE FACTO. One who holds and exer-
cises the office of a judge under color of lawful
authority and by a title valid on its face, though
he has not full right to the office, as where he was
appointed under an unconstitutional statute, or
by an usurper of the appointing power, or has not
taken the oath of office. State v. Miller, 111 Mo.
542, 20 S.W. 243; Walcott v. Wells, 21 Nev. 47, 24
P. 367, 9 L.R.A. 59, 37 Am.St.Rep. 478; Dredla v.
Baache, 60 Neb. 655, 83 N.W. 916; Caldwell v. Bar-
rett, 71 Ark. 310, 74 S.W. 748.
In Missouri, a special judge Is a "judge de facto". State
ex rel. McGaughey v. Grayston, 349 Mo. 700, 163 S.W.2d
335, 337.
JUDGE-MADE LAW. A phrase used to indicate
judicial decisions which construe away the mean-
ing of statutes, or find meanings in them the leg-
islature never intended. It is sometimes used as
meaning, simply, the law established by judicial
precedent. Cooley, Const.Lim., 4th ed. 70, note.
JUDGE ORDINARY. By St. 20 & 21 Vict. c. 85,
§ 9, the judge of the court of probate was made
judge of the court for divorce and matrimonial
causes created by that act, under the name of the
"judge ordinary."
In Scotland, the title "judge ordinary" is applied to all
those judges, whether supreme or inferior, who, by the
nature of their office, have a fixed and determinate juris-
diction in all actions of the same general nature, as con-
tradistinguished from the old Scotch privy council, or
from those judges to whom some special matter is com-
mitted; such as commissioners for taking proofs, and
messengers at arms. Bell.
JUDGE PRO TEMPORE. One appointed for the
term or some part thereof, during which time he
exercises all the functions of the regular judge.
State ex rel. Hodshire v. Bingham, 218 Ind. 490,
33 N.E.2d 771, 134 A.L.R. 1126.
JUDGER. A Cheshire juryman. Jacob.
JUDGE'S CERTIFICATE. In English practice.
A certificate, signed by the judge who presided at
the trial of a cause, that the party applying is en-
titled to costs. In some cases, this is a necessary
preliminary to the taxing of costs for such party.
A statement of the opinion of the court, signed by
the judges, upon a question of law submitted to
them by the chancellor for their decision. See 3
Bl.Comm. 453.
JUDGE'S MINUTES, OR NOTES. Memoranda
usually taken by a judge, while a trial is proceed-
ing, of the testimony of witnesses, of documents
offered or admitted in evidence, of offers of evi-
dence, and whether it has been received or reject-
ed, and the like matters.
JUDGE'S ORDER. An order made by a judge at
chambers, or out of court.
JUDGMENT. A sense of knowledge sufficient to
comprehend nature of transaction. Thomas v.
Young, 57 App.D.C. 282, 22 F.2d 588, 590.
An opinion or estimate. McClung Const. Co. v.
Muncy, Tex.Civ.App., 65 S.W.2d 786, 790.
The conclusion in a syllogism having for its
major and minor premises issues raised by the
pleadings and the proofs thereon. Barlow v.
Scott, Mo.Sup., 85. S.W.2d 504, 517.
The formation of an opinion or notion concern-
ing some thing by exercising the mind upon it.
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JUDGMENT
977
Cleveland Clinic Foundation v. Humphrys, C.C.A.
Ohio, 97 F.2d 849, 857.
The official and authentic decision of a court of
justice upon the respective rights and claims of
the parties to an action or suit therein litigated
and submitted to its determination. People v. Re-
bel, 19 Colo.App. 523, 76 P. 550; Bullock v. Bul-
lock, 52 N.J.Eq. 561, 30 A. 676, 27 L.R.A. 213, 46
Am.St.Rep. 528; State v. Brown & Sharpe Mfg.
Co., 18 R.I. 16, 25 A. 246, 17 L.R.A. 856.
Also it is, or may mean, adjudication, Horner v. Nerling-
er, 304 Mich. 225, 7 N.W.2d 281, 284; Samuel Goldwyn,
Inc., v. United Artists Corporation, C.C.A.Del., 113 F.2d
703, 706; Sutton v. Rhodes, 205 Iowa 227, 217 N.W. 626,
628; affirmance by court of compensation award. Lenon
v. Standard Oil Co., 134 Kan. 289, 5 P.2d 853, 854; con-
clusion of law upon facts found or admitted by the parties
or upon their default in the course of the suit. Tidd.Pr.
930; Ross v. C. D. Mallory Corporation, 37 A.2d 766, 768,
132 N.J.L. 1; Bell v. State Industrial Accident Commis-
sion, 157 Or. 653, 74 P.2d 55, 57; Siddall v. Jansen, 143
Ill. 537, 32 N.E. 384; conclusion that naturally follows
from the premises of law and fact. Branch v. Branch, 5
Fla. 450; In re Sedgely Ave., 88 Pa. 513; debt which a
court of law finds to be due and orders to be paid, Truscon
Steel Co. of Canada, Limited, v. Biegler, 306 Ill.App. 180,
28 N.E.2d 623, 625; decision or determination on issues in
any proceeding at law, Schmeizl v. Schmeizl, 184 Md. 584,
42 A.2d 106, 112; decision or sentence of the law, given by
a court of justice or other competent tribunal, as the result
of proceedings instituted therein, 3 Bla.Com. 395; Aetna
Ins. Co. v. Swift, 12 Minn. 327 (Gil. 326); Allegheny Coun-
ty v. Maryland Casualty Co., C.C.A.Pa., 132 F.2d 894, 897;
State v. Siglea, 196 Wash. 283, 82 P.2d 583, 584; decision or
sentence of the law pronounced by the court and entered
upon its docket, minutes or record, Clark v. State, 72 Ga.
App. 603, 34 S.E.2d 608, 613; decision or sentence of the
law pronounced by court or other competent tribunal upon
the matter in record, Reed v. Howbert, C.C.A.Colo., 77 F.
2d 227, 228; Commonwealth ex rel. Kelley v. Brown, 527
Pa. 136, 193 A. 258, 260; determination of a court of com-
petent jurisdiction upon matters submitted to it. State ex
rel. Curran v. Brookes, 142 Ohio St. 107, 50 N.E.2d 995, 998;
determination or sentence of the law, pronounced by a
competent judge or court, as the result of an action or pro-
ceeding instituted in such court, affirming that, upon the
matters submitted for its decision, a legal duty or liability
does or does not exist, 1 Black, Judgm. § 1; Gunter v.
Earnest, 68 Ark. 180, 56 S.W. 876; Danner v. Walker-
Smith Co., Tex.Civ.App., 154 S.W. 295, 298; State v. King,
18 Wash.2d 747, 140 P.2d 283, 286; final determination of
"any action or proceeding", Dahmen v. Gregory, 184 Misc.
724, 55 N.Y.S.2d 311, 313; final determination of rights of
the parties in an action or proceeding, State v. McNichols,
62 Idaho 616, 115 P.2d 104, 107; California Machinery &
Supply Co. v. University City Syndicate, Inc., 3 Cal.App.2d
425, 39 P.2d 853; Elliott v, Elliott, 154 Kan. 145, 114 P.2d
823, 825; final determination or action of the court. El
Centro Grain Co. v. Bank of Italy Nat. Trust & Savings
Ass'n, 123 Cal.App. 564, 11 P.2d 650, 651; Jackson v.
Slaughter, Tex.Civ.App., 185 S.W.2d 759, 761; State ex rel.
McDonald v. Loins, 326 Mo. 644, 33 S.W.2d 98, 100; first
order containing all necessary recitals which with finality
dispose of cause, In re McLeod's Estate, 143 Or. 233, 21 P.
2d 1084; formal expression and evidence of the actual de-
cision of a lawsuit, Gossman v. Gossman, 52 Cal.App.2d 184,
126 P.2d 178, 185; judicial determination of guilt based
upon a verdict or a plea of guilty, People v. La Sasso, 182
Misc. 538, 44 N.Y.S.2d 93, 97; judicial determination or
sentence of the court upon a matter within its jurisdiction,
United States v. Hark, Mass., 320 U.S. 531, 64 S.Ct. 359, 360,
361, 88 L.Ed. 290; Schmeizl v. Schmeizl, 184 Md. 584, 42
A.2d 106, 112; law's last word in a judicial controversy,
Pierce v. Pierce, 97 Colo. 39, 46 P.2d 748, 749; People ex
rel. Toman v. Crane, 372 Ill. 228, 23 N.E.2d 337, 339; ob-
ligation especially of a debt created by decision or decree
of court, Truscon Steel Co. of Canada, Limited, v. Biegler,
306 Ill.App. 180, 28 N.E.2d 623, 625; pronouncement by
court from the bench, Walden v. Hudspeth, C.C.A.Kan.,
115 F.2d 558, 559; pronouncement of judge, Bell Grocery
v. Booth, 250 Ky. 1, 61 S.W.2d 879; Wilson v. Bell, C.C.A.
Tenn., 137 F.2d 716, 720; record in the book, not the in-
Black's Law Dictionary Revised 4th Ed.-62
strument typewritten and signed by the clerk, Groth v.
Ness, 65 N. D. 580, 260 N.W. 700 ; sentence in criminal case,
Attorney General ex rel. O'Hara v. Montgomery, 275 Mich.
504, 267 N.W. 550, 554; Moore v. Thorn, 154 Misc. 136, 277
N.Y.S. 544; Commonwealth v. Trunk, 320 Pa. 270, 182 A.
540, 541; sentence of the law on ultimate facts admitted
by pleadings or proved by evidence, Kansas City Life Ins.
Co. v. Anthony, 142 Kan. 670, 52 P.2d 1208, 1211, 104 A.L.R.
364 ; what the court pronounces, Corbett v. Rankin Inde-
pendent School Dist., Tex.Civ.App., 100 S.W.2d 113, 115;
De Leon v. Texas Employers Ins. Ass'n, Tex.Civ.App., 159
S.W.2d 574, 575.
The term "judgment" is also used to denote the reason
which the court gives for its decision; but this is more
properly denominated an "opinion."
A decree is a judgment. Fuller v. Fuller, 49 R.I. 45, 139
A. 662, 663 ; Knettle v. Knettle, 190 Wash. 395, 68 P.2d
218, 220; Spartan Mills v. Law, 186 S.C. 61, 194 S.E. 653,
655; National Surety Co. v. Mulligan, 105 N.J.L. 336, 146
A. 372, 375. As used in some statutes, judgment and de-
cree are synonymous. Finnell v. Finnell, 113 Okl. 269,
230 P. 912, 913; Kline v. Murray, 79 Mont. 530, 257 P. 465,
467; Weeden v. Weeden, 116 Ohio St. 524, 156 N.E. 908,
909.
An allowance or disallowance of a claim may be a judg-
ment. United States v. Paisley, D.C.I11., 26 F.Supp. 237,
238; In re Hiller's Estate, 171 Or. 428, 137 P.2d 828, 830;
State ex rel. Spellman v. Commercial State Bank of Omaha,
143 Neb. 490, 10 N.W.2d 268.
An award may be in the nature of, or equivalent of, a
judgment. Traders & General Ins. Co. v. Baker, Tex.Civ.
App., 111 S.W.2d 837, 839, 840; Holliday v. Sailing, 54
Ariz. 496, 97 P.2d 221, 223, 126 A.L.R. 145; Wisconsin
Compensation Bureau v. Mortensen, 227 Wis. 335, 277 N.W.
679, 684; Detroit Trust Co. v. Van Wagoner, 295 Mich. 449,
295 N.W. 222, 223.
An entry on court record may constitute a judgment.
Nichols v. Chandler, Ohio App., 61 N.E.2d 239, 240.
An order may be a judgment: Compensation proceed-
ing. Truax-Traer Coal Co. v. Compensation Com'r, 123 W.
Va. 621, 17 S.E.2d 330, 334; Traders & General Ins. Co. v.
Baker, Tex.Civ.App., 111 S.W.2d 837, 839, 840; State v.
Thierfelder, 114 Mont. 104, 132 P.2d 1035, 1037; State v.
McNichols, 62 Idaho 552, 115 P.2d 104, 107; Baumgartner
v. United States, C.C.A.Mo., 138 F.2d 29, 33.
Commitment to institution, etc., as a judgment, People
ex rel. McCarthy v. Snyder, Sup., 54 N.Y.S.2d 40, 41; Ex
parte Herrera, 143 P.2d 345, 349, 23 Ca1.2d 206.
The words "decision" and "judgment" may be used in-
terchangeably. Smith v. State, 196 Ga. 595, 27 S.E.2d 369,
373; Gutierrez v. Brady, 45 N.M. 209, 113 P.2d 585, 537;
but in a different context may not be synonymous. Men-
nel Milling Co. v. Slosser, 140 Ohio St. 445, 45 N.E.2d 306,
308. They are not the same thing under federal rules.
Winkelman v. General Motors Corporation, D.C.N.Y., 48
F.Supp. 490, 494. A written decision that finally deter-
mines rights of parties is a "judgment". Zbikowski v. Straz,
236 Wis. 161, 294 N.W. 541, 543. Decisions by Secretary of
the Interior on matters relating to public lands are equiva-
lent of a "judgment" of a court. Elliott v. Thompson,
63 Idaho 395, 120 P.2d 1014, 1022. Decisions of administra-
tive boards are not "judgments". Dal Maso v. Board of
Com'rs of Prince George's County, 182 Md. 200, 34 A.2d
464, 466. The decision of the court, when filed, amounts
to rendition of judgment. Lind v. Baker, 48 Cal.App.2d
234, 119 P.2d 806, 812.
To constitute act of bankruptcy, "judgment" suffered
by debtor must be one that has become lien and, as such,
a legal preference. Elkay Reflector Corporation v. Savory,
Inc., C.C.A.N.Y., 57 F.2d 161, 162.
Judgments, considered with regard to the meth-
od of obtaining them, may be classified as follows.
Admission of facts by the parties, leaving only
issues of law to be determined. Such judgments
are: judgment upon a demurrer; judgment on a
case stated; judgment on a general verdict sub-
ject to a special case; judgment on a special ver-
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JUDGMENT
Admissions or confessions of one only of the
parties; judgments based on. Such judgments
when for defendant upon the admissions of the
plaintiff are: judgment of nolle prosequi; judg-
ment of retraxit; judgment on leave of court to
discontinue; a stet processus. Judgments for the
plaintiff upon facts admitted by the defendant are:
judgment by cognovit actionem; cognovit or con-
fession.
Trial of an issue of fact. Judgments upon facts
found are: Judgment of nul tiel record; judgment
upon verdict; judgment non obstante veredicto;
judgment of repleader.
Alternative judgment. One that by its terms
might be satisfied by doing either of several acts
at the election of the party or parties against
whom the judgment is rendered and from whom
performance is by the judgment required. Hen-
derson v. Arkansas, 71 Okl. 253, 176 P. 751, 754.
A judgment for one thing or another which does
not specifically and in a definitive manner deter-
mine the rights of the parties. State v. Wilson,
216 N.C. 130, 4 S.E.2d 440, 442.
Assets in futuro, judgment of. One against an
executor or heir, who holds at the time no prop-
erty on which it can operate. See Quando Acci-
derint.
Case stated, judgment on. It sometimes hap-
pens that though the adverse parties are agreed
as to the facts, and only differ as to the law aris-
ing out of them, still these facts do not so clearly
appear on the pleadings as to enable them to ob-
tain the opinion of the court by way of demurrer;
for on demurrer the court can look at nothing
whatever except the pleadings. In such circum-
stances the statute 3 & 4 Will. IV. c. 42, § 25,
which has been imitated in most of the states, al-
lows them after issue joined, and on obtaining the
consent of a single judge, to state the facts in a
special case for the opinion of the court, and
agree that a judgment shall be entered for the
plaintiff or defendant by confession or nolle pro-
sequi immediately after the decision of the case;
and judgment is entered accordingly, called judg-
ment on a case stated.
Cassetur breve or billa, judgment of (that the
writ or bill be quashed) is a judgment rendered
in favor of a party pleading in abatement to a
writ or action. Steph.Pl. 130, 131.
Cognovit. See Cognovit.
Cognovit actionem. See Cognovit Actionem.
Conditional judgment. One whose force de-
pends upon the performance of certain acts to be
done in the future by one of the parties; as, one
which may become of no effect if the defendant
appears and pleads according to its terms, or one
which orders the sale of mortgaged property in a
foreclosure proceeding unless the mortgagor shall
pay the amount decreed within the time limited.
Mahoney v. New South Building & Loan Ass'n,
C.C.Va., 70 F. 513; Simmons v. Jones, 118 N.C.
472, 24 S.E. 114.
Confession. At common law, judgment enter-
ed where defendant, instead of entering plea, con-
fessed action, or withdrew plea and confessed ac-
tion. Information Buying Co. v. Miller, 173 Ga.
786, 161 S.E. 617, 618. Judgment where a defend-
ant gives the plaintiff a cognovit or written con-
fession of the action by virtue of which the plain-
tiff enters judgment. The act of a debtor in per-
mitting judgment to be entered against him by his
creditor, for a stipulated sum, by a written state-
ment to that effect or by warrant of attorney, with-
out the institution of legal proceedings of any
kind; voluntary submission to court's jurisdiction.
O'Hara v. Manley, 140 Pa.Super. 39, 12 A.2d 820,
822.
Consent judgment. A judgment, the provisions
and terms of which are settled and agreed to by
the parties to the action. Hargis v. Hargis, 252
Ky. 198, 66 S.W.2d 59; Andrews v. Indemnity Ins.
Co. of North America, 55 R.I. 341, 181 A. 403;
Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871,
872.
It is not the judgment of the court, it is the agreement
of the parties, entered upon the record with the sanction
and approval of the court, and is their act rather than
that of the court. Andrews v. Indemnity Ins. Co. of North
America, 55 R.I. 341, 181 A. 403; Cason v. Shutte, 211 N.
C. 195, 189 S.E. 494, 495.
Consent judgments are, in effect, merely contracts ac-
knowledged in open court and ordered to be recorded, but
as such they bind the parties as fully as do other judg-
ments. Prince v. Frost-Johnson Lumber Co., Tex.Civ.
App., 250 S.W. 785, 789; Belcher v. Cobb, 169 N.C. 689, 86
S.E. 600, 602.
Contradictory judgment. A judgment which
has been given after the parties have been heard,
either in support of their claims or in their de-
fense. Cox's Ex'rs v. Thomas, 11 La. 366.
It is used in Louisiana to distinguish such judgments
from those rendered by default.
De melioribus damnis. See De Melioribus
Damnis.
Default and inquiry, judgment by. It estab-
lishes right of action of kind properly pleaded in
complaint, determines right of plaintiff to recover
at least nominal damages and costs, and precludes
defendant from offering any evidence on execution
of inquiry to show -that plaintiff has no right of
action. De Hoff v. Black, 206 N.C. 687, 175 S.E.
179.
Default final, judgment by. It establishes al-
legations of complaint and concludes by way of
estoppel. De Hoff v. Black, 206 N.C. 687, 175 S.E.
179.
Default judgment. A judgment rendered in
consequence of the non-appearance of the defend-
ant. Beard v. Sovereign Lodge, W. 0. W., 184
N.C. 154, 113 S.E. 661; In re Smith, 38 Idaho, 746,
225 P. 495, 496; Brame v. Nolen, 139 Va. 413, 124
S.E. 299, 301. One entered upon the failure of a
party to appear or plead at the appointed time.
The term is also applied to judgments entered un-
der statutes or rules of court, for want of affidavit
of defense, plea, answer, and the like, or for fail-
ure to take some required step in the cause.
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JUDGMENT
Judgments rendered on defendant's default are: Judg-
ment by default; judgment by non sum informatus;
judgment nil licit. Judgments rendered on plaintiff's de-
fault are: Judgment of non pros. (from non prosequitur)
and judgment of nonsuit (from non sequitur, or ne suit
pas).
Deficiency judgment. See Deficiency.
Demurrer, judgment on. Concludes party de-
murring, because by demurring, a party admits
the facts alleged in the pleadings of his adversary
and relies on their insufficiency in law. See De-
murrer.
Discontinuance. A "judgment of discontinuance"
is one of dismissal of plaintiff's action based on
interruption in proceedings occasioned by failure
of plaintiff to continue suit regularly from time to
time as he ought. Steele v. Beaty, 215 N.C. 680,
2 S.E.2d 854, 855.
A plaintiff sometimes, when he finds he has miscon-
ceived his action, obtains leave from the court to discon-
tinue, on which there is a judgment against him and he
has to pay costs; but he may commence a new action for
the same cause.
Dismissal, judgment of. See Dismissal.
Domestic judgment. A judgment is domestic
in the courts of the same state or country where
it was originally rendered; in other states or
countries it is called foreign. The federal court
sitting for the state is a domestic court, and its
judgments within the scope of its jurisdiction are
domestic judgments. Louisville & N. R. Co. v. Tal-
ly, 203 Ala. 370, 83 So. 114, 117.
Dormant judgment. One which has not been sat-
isfied or extinguished by lapse of time, but which
has remained so long unexecuted that execution
cannot now be issued upon it without first reviv-
ing the judgment. Draper v. Nixon, 93 Ala. 436,
8 So. 489; General Electric Co. v. Hurd, C.C.Or.,
171 F. 984; Burlington State Bank v. Marlin Nat.
Bank, Tex.Civ.App., 207 S.W. 954, 956. Or one
which has lost its lien on land from the failure
to issue execution on it or take other steps to en-
force it within the time limited by statute. 1
Black, Judgm. (2d Ed.) § 462.
Error, judgment in. A judgment rendered by a
court of error on a record sent up from an in-
ferior court.
It is either in affirmance of the former judgment; in
recall of it for error in fact; in reversal of it for error in
law ; that the plaintiff be barred of his writ of error,
where a plea of release of errors or of the statute of limi-
tations is found for the defendant ; or that there be a
venire facias de novo, which is an award of a new trial.
Execution of judgment. See Execution of Judg-
ment or Decree.
Face of judgment. See Face of Judgment.
Final judgment. One which puts an end to a
suit or action.
One which puts an end to an action at law by declaring
that the plaintiff either has or has not entitled himself to
recover the remedy he sues for. 3 Bl.Comm. 398; Frank
P. Miller Paper Co. v. Keystone Coal & Coke Co., 275 Pa.
40, 118 A. 565, 566. So distinguished from interlocutory judg-
ments, which merely establish the right of the plaintiff to
recover, in general terms. Id. 397. A judgment which
determines a particular cause. Bostwick v. Brinkerhoff,
106 U.S. 3, 1 S. Ct. 15, 27 L.Ed. 73; Pfeiffer v. Crane, 89
Ind. 487; Nelson v. Brown, 59 Vt. 601, 10 A. 721. A judg-
ment which cannot be appealed from, which is perfectly
conclusive upon the matter adjudicated. Snell v. Cotton
Gin Mfg. Co., 24 Pick., Mass., 300; Foster v. Neilson, 2
Pet. 294, 7 L.Ed. 415; Forgay v. Conrad, 6 How. 201, 12
L.Ed. 404; State v. Harmon, 87 Ohio St. 364, 101 N.E.
286, 288. A judgment which disposes of the subject-matter
of the controversy or determines the litigation as to all
parties on its merits. Lamberton v. McCarthy, 30 Idaho,
707, 168 P. 11; Sanders v. May, 173 N. C. 47, 91 S.E. 526,
527; France & Canada S. S. Co. v. French Republic, C.C.A.
N.Y., 285 F. 290, 294; Judson Lumber Co. v. Patterson, 68
Fla. 100, 66 So. 727, 728; Miller v. Farmers State Bank &
Trust Co., Tex.Civ.App., 241 S.W. 540, 541. A judgment
which terminates all litigation on the same right. For
meaning of "final judgment", in the judiciary act of 1789,
§ 25, see 1 Kent., Comm. 316; Weston v. Charleston, 2 Pet.
494, 7 L.Ed. 481; Forgay v. Conrad, 6 How. 201, 209, 12
L.Ed. 404.
Foreign judgment. One rendered by the courts
of a state or country politically and judicially
distinct from that where the judgment or its ef-
fect is brought in question. One pronounced by a
tribunal of a foreign country, or of a sister state.
Karns v. Kunkle, 2 Minn. 313, Gil. 268; Gulick v.
Loder, 13 N.J.L. 68, 23 Am.Dec. 711; Grover & B.
Sewing Mach. Co. v. Radcliffe, 137 U.S. 287, 11 S.
Ct. 92, 34 L.Ed. 670.
General verdict subject to a special case, judg-
ment on. Where at the trial the parties agree on
the facts and the only question is one of law and
a verdict pro forma is taken and the jury find for
the plaintiff generally but subject to the opinion
of the court on a special case.
In personam or inter partes. See Judgment in
Personam or Inter Partes.
In rem. See Judgment in Rem.
Interlocutory judgment. One given in the pro-
gress of a cause upon some plea, proceeding, or
default which is only intermediate and does not
finally determine or complete the suit. 3 Bl.Comm.
396. One which determines some preliminary or
subordinate point or plea, or settles some step,
question, or default arising in the progress of the
cause, but does not adjudicate the ultimate rights
of the parties, or finally put the case out of court.
Thus, a judgment or order passed upon any pro-
visional or accessory claim or contention is, in
general, merely interlocutory, although it may
finally dispose of that particular matter. 1 Black,
Judgm. § 21; Hartford Fire Ins. Co. v. McDonald,
177 Ky, 838, 198 S.W. 225, 226; Frank P. Miller
Paper Co. v. Keystone Coal & Coke Co., 275 Pa. 40,
118 A. 565, 566.
Junior judgment. One which was rendered or
entered after the rendition or entry of another
judgment, on a different claim, against the same
defendant.
Merits, judgment on. One rendered after argu-
ment and investigation, and when it is determined
which party is in the right, as distinguished from
a judgment rendered upon some preliminary or
formal or merely technical point, or by default
and without trial. Bell Grocery Co. v. Booth, 250
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J UDGMENT
Ky. 21, 61 S.W.2d 879; State ex rel. National Lead
Co. v. Smith, Mo.App., 134 S.W.2d 1061, 1068.
Money judgment. One which adjudges the pay-
ment of a sum of money, as distinguished from
one directing an act to be done or property to be
restored or transferred. Fuller v. Aylesworth,
Mich., 75 F. 694, 21 C.C.A. 505; Pendleton v. Cline,
85 Cal. 142, 24 P. 659.
Ordinary "judgment for money" merely determines
amount due. State ex rel. Lang v. Superior Court for
King County, 176 Wash. 472, 30 P.2d 237, 239.
Narr and cognovit, judgment on. Summons is
unnecessary because maker of note authorizes
appearance and waives summons. Schwartz v.
Schwartz, 366 Ill. 247, 8 N.E.2d 668, 670, 112 A.L.R.
325.
Nihil dicit. See Nihil Dicit.
Nil capiat per breve or per billa (that he take
nothing by his writ, or by his bill). A judgment
in favor of the defendant upon an issue raised
upon a declaration or peremptory plea.
Nil dicit, judgment by. One rendered where
defendant fails to plead, or where, having pleaded,
plea is stricken, withdrawn, or abandoned and
no further defense is made. Grand Lodge Bro-
therhood of Railroad Trainmen v. Ware, Tex.Civ.
App., 73 S.W.2d 1076, 1077; Reliance Equipment
Co. v. Montgomery, 27 Ala.App. 539, 175 So. 703.
At common law, it may be taken against defendant who
omits to plead or answer whole or any separable substan-
tial portion of declaration. Clonts v. Spurway, 104 Fla.
340, 139 So. 896, 897. It amounts to judgment by confes-
sion with reference to cause of action stated, Grand Lodge
Brotherhood of Railroad Trainmen v. Ware, Tex.Civ.App.,
'73 S.W.2d 1076, 1077. For judgment nihil dicit, see Nihil
Dicit. Judgment rendered on plea of guilty is not judg-
ment nil dicit, which is substantially identical with de-
fault judgment. Stevens v. State, 100 Vt. 214, 136 A. 387.
Nisi. At common law, judgment nisi was a
judgment entered on the return of the nisi prius
record, which, according to the terms of the postea
indorsed thereon was to become absolute unless
otherwise ordered by the court within the first four
days of the next succeeding term. See U. S. v.
Winstead, D.C.N.C., 12 F. 51; Young v. McPher-
son, 3 N.J.L. 897.
Nolle prosequi, judgment of. One entered
against plaintiff when, after appearance and be-
fore judgment, he declares that he will not fur-
ther prosecute his suit. Steph. Pl., Andr. Ed. § 97;
Merchants Mut. Casualty Co. v. Kiley, 92 N.H.
323, 30 A.2d 681, 683.
Non obstante veredicto. See Non Obstante Vere-
clicto.
Non pros (non prosequitur [he does not follow
up, or pursue]). See Non Prosequitur.
Non sum informatus. See Non Sum Informa-
tus.
Nonsuit. See Nonsuit.
Nul tiel record. See Nul Tiel Record.
Nunc pro tune. One entered on a day subse-
quent to the time at which it should have been
entered, as of the latter date. See Nunc Pro Tunc.
Personal judgment. One imposing on the de-
fendant a personal liability to pay it, and which
may therefore be satisfied out of any of his prop-
erty which is within the reach of process, as dis-
tinguished from one which may be satisfied only
out of a particular fund or the proceeds of parti-
cular property.
Thus, in a mortgage foreclosure suit, there may be a
personal judgment against the mortgagor for any de-
ficiency that may remain after the sale of the mortgaged
premises. See Bardwell v. Collins, 44 Minn. 97, 46 N.W.
315, 9 L.R.A. 152.
Pocket judgment. A statute-merchant which
was enforceable at any time after non-payment on
the day assigned, without further proceedings.
Wharton.
Pro retorno habendo. A judgment that the par-
ty have a return of the goods.
Quando acciderint. See Quando Acciderint.
Quod computet. See Quod Computet.
Quod partes replacitent. See Quod Partes Re-
placitent.
Quod partitio fiat. Interlocutory judgment in awrit of partition, that partition be made.
Quod recuperet. See Quod Recuperet.
Relicta verificatione. See Relicta Verificatione.
Repleader, judgment of. See Repleader.
Respondeat ouster. When the issue in law aris-
es on a dilatory plea, and is determined for the
plaintiff, the judgment is only that the defendant
"do answer over," called a judgment of respondeat
ouster; it is interlocutory only.
Retraxit. See Retraxit.
Special verdict, judgment on. Where at the trial
the parties find that they agree on the facts and
the only question is one of law and a verdict pro
forma is taken, and the jury state the facts as
they find them, concluding that the opinion of
the court shall decide in whose favor the verdict
shall be, and that they assess the damages accord-
ingly.
Stet Processus. See Stet Processus.
Verdict, judgment on. The most usual of the
judgments upon facts found, and is for the party
obtaining the verdict.
Warrant of attorney. See Warrant.
JUDGMENT-BOOK. A book required to be kept
by the clerk, among the records of the court, for
the entry of judgments. In re Weber, 4 N.D. 119,
59 N.W. 523, 28 L.R.A. 621.
JUDGMENT CREDITOR. One who has obtained
a judgment against his debtor, under which he
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JUDGMENT, ESTOPPEL BY
can enforce execution. King v. Fraser, 23 S.C.
548; Baxter v. Moses, 77 Me. 465, 1 A. 350, 52 Am.
Rep. 783; Chalmers & Williams v. Surprise, 70
Ind.App. 646, 123 N.E. 841, 844. Code Civ.Proc.
N.Y.1899, § 3343 (Civ.Prac. Act, § 7). The owner
of an unsatisfied judgment.
JUDGMENT DEBT. One which is evidenced by
matter of record. Colonial Building-Loan Ass'n
v. Mongiello Bros., 120 N.J.Eq. 270, 184 A. 635, 637.
A debt, whether on simple contract or by specialty,
for the recovery of which judgment has been en-
tered up, either upon a cognovit or upon a war-
rant of attorney or as the result of a successful
action. Brown.
JUDGMENT DEBTOR. A person against whom
judgment has been recovered, and which remains
unsatisfied. The term has been construed to in-
clude a judgment debtor's successors in interest.
Bateman v. Kellogg, 59 Cal.App. 464, 211 P. 46, 51;
but see, contra, Northwest Trust & Safe Deposit
Co. v. Butcher, 98 Wash. 158, 167 P. 46, 47.
JUDGMENT DEBTOR SUMMONS. Under the
English bankruptcy act, 1861, §§ 76-85, these sum-
monses might be issued against both traders and
non-traders, and, in default of payment of, or se-
curity or agreed composition for, the debt, the
debtors might be adjudicated bankrupt. This act
was repealed by 32 & 33 Vict. c. 83, § 20. The 32
& 33 Vict. c. 71, however, (bankruptcy act, 1869,)
provides (section 7) for the granting of a "debt-
or's summons," at the instance of creditors, and,
in the event of failure to pay or compound, a pe-
tition for adjudication may be presented, unless in
the events provided for by that section. Wharton.
JUDGMENT DOCKET. A list or docket of the
judgments entered in a given court, methodically
kept by the clerk or other proper officer, open to
public inspection, and intended to afford official
notice to interested parties of the existence or lien
of judgments.
JUDGMENT, ESTOPPEL BY. The estoppel raised
by the rendition of a valid judgment by a court
having jurisdiction. 2 Bl.Judgm. § 504; State v.
Torinus, 28 Minn. 175, 9 N.W. 725. See, also, Ver-
dict, Judgment By.
Final adjudication of any issue by court of competent
jurisdiction binds parties and privies in any subsequent
proceeding, irrespective of difference in forms or causes
of action. Citizens' Loan & Trust Co. of Washington, Ind.
v. Sanders, 99 Ind.App. 77, 187 N.E. 396, 398.
The essence of estoppel by judgment is that there has
been a judicial determination of a fact. Price v. Clement,
187 Okl. 304, 102 P.2d 595, 597; Monteith Bros. Co. v.
U. S., D.C.Ind., 48 F.Supp. 210, 212. It arises where a par-
ty litigant attempts to assume inconsistent and contradic-
tory positions with respect to same matter. Elfman v.
Glaser, 313 Mass. 370, 47 N.E.2d 925, 929. It rests upon
principles forbidding one to relitigate matter in dispute
between parties which has been determined by competent
court, on ground that record of judgment imports absolute
verity. Cauble v. Cauble, Tex.Civ.App., 2 S.W.2d 967, 970.
The doctrine extends to matters actually adjudicated,
Hamlin v. Johns, 41 Ga.App. 91, 151 S.E. 815, 817; Penn
Mut. Life Ins. Co. v. Childs, 189 Ga. 835, 7 S.E.2d 907;
actually and necessarily included in judgment, MacDonnell
v. Capital Co., C.C.A.Cal., 130 F.2d 311, 318; Panos v.
Great Western Packing Co., Cal.App., 126 P.2d 889, 892;
expressly or by necessary Implication adjudicated, McKee
v. Producers' & Refiners' Corporation, 170 Okl. 559, 41 P.2d
466, 469; necessarily adjudicated, Capps v. Toccoa Falls
Light & Power Co., 46 Ga.App. 268, 167 S.E. 530, 532;
Humble Oil & Refining Co. v. Webb, Tex.Civ.App., 177 S.
W.2d 218, 223. It extends only to facts in issue as they
existed at time judgment was rendered, Fort Worth Stock-
yards Co. v. Brown, Tex.Civ.App., 161 S.W.2d 549, 555.
It extends' to matters which might have been litigated in
former case. Paine & Williams Co. v. Baldwin Rubber
Co., C.C.A.Mich., 113 F.2d 840, 842, 843; Knabb v. Duner,
143 Fla. 92, 196 So. 456, 460. But it has been held that the
doctrine does not apply where point at issue was not con-
troverted in prior action but might have been. Haumesser
v. Woodrich, 315  475, 43 N.E.2d 193, 196; the es-
toppel does not extend to matter not directly in issue
though it arose in case collaterally. Morrison v. Bank of
Mount Hope, 124 W.Va. 478, 20 S.E.2d 790, 794.
Ordinarily, "estoppel" at judgment does not extenCtO
matters not expressly adjudicated, Sonken-Galamba Cor-
poration v. Atchison, T. & S. F. Ry. Co., C.C.A.Mo., 124
F.2d 952, 956; and a judgment or decree without prejudice
does not work an "estoppel". In re McDermott, C.C.A.
Ill., 115 F.2d 582, 584.
Elements or essentials are or may include former judg-
ment between same parties or their privies. Postelneck v.
Edbro Realty Co., 228 App.Div. 105, 239 N.Y.S. 173, 175;
former judgment must relate to same question and must
clearly decide it, First Nat. Bank of Atlanta v. Williams,
62 Ga.App. 203, 8 S.E.2d 562, 564, 565; former judgment
on the merits, Stowers v. Harris, 194 Ga. 636, 22 S.E.2d
405, 408; Postelneck v. Edbro Realty Co., 228 App.Div. 105,
239 N.Y.S. 173, 175; identity of parties suing in same ca-
pacity, Ford v. Dania Lumber & Supply Co., 150 Fla. 435,
7 So.2d 594, 595; material facts necessary in arriving at
conclusion must be properly in issue, Paine & Williams Co.
v. Baldwin Rubber Co., C.C.A.Mich., 113 F.2d 840, 842, 843;
matters litigated and determined in prior case must have
been within scope of the pleadings, Slaughter v. Slaughter,
190 Ga. 229, 9 S.E.2d 70, 71, 129 A.L.R. 156; mutuality of
estoppel, Stewart v. City of Springfield, 350 Mo. 234, 165
S.W.2d 626, 630; Elder v. New York & Pennsylvania Motor
Express, 284 N.Y. 350, 31 N.E.2d 188, 189, 133 A.L.R. 176;
precise facts or questions must have been determined by
former judgment, Skolnik v. Petella, 376 Ill. 500, 34 N.E.2d
825, 826; Flint v. Kimbrough, 45 N.M. 342, 115 P.2d 84, 86;
subsequent suit must be between same parties or their
privies. Harris v. Jacksonville Paper Co., 67 Ga.App. 759,
21 S.E.2d 537, 541; Woods v. Duval, 151 Kan. 472, 99 P.2d
804, 808; substantial identity of parties, Curtis v. Mary-
land Baptist Union Ass'n, 176 Md. 430, 5 A.2d 836, 839, 121
A.L.R. 1516.
The estoppel may be based on consent judgment, Le
Bire v. Department of Labor and Industries, 14 Wash.2d
407, 128 P.2d 308, 313; declaratory judgment, In re Pat-
ton's Estate, 170 Or. 186, 132 P.2d 402, 406; default judg-
ment, Lawhorn v. WeIlford, 179 Tenn. 625, 168 S.W.2d
790, 792; erroneous judgment regularly entered by court.
Ex parte Young, 222 N.C. 708, 24 S.E.2d 539, 540; fin•_
judgment, Ramsey Tp., McCook County v. Lake County,
68 S.D. 67, 298 N.W. 356; final judgment in a criminal
prosecution or proceeding, Ex parte Lewis, 152 Kan. 13,
102 P.2d 981, 982; judgment in rem, or quasi in rem,
Saunders v. King, 69 Ohio App. 313, 37 N.E.2d 92, 93;
judgment upon stipulation, Tillman v. National City Bank
of New York, C.C.A.N.Y., 118 F.2d 631, 633, 634, 635;
judgment upon the merits, Smith v. C. I. T. Corporation,
69 Ga.App. 516, 26 S.E.2d 146, 148; Fightmaster v. Tauber,
43 Ohio App. 266, 183 N.E. 116, 117.
When causes of action or claims or demands in prior
and subsequent suits are different the estoppel exists with
respect to matters actually decided and essential to or
necessarily involved in judgment, Balcom v. Cain, Tex.
Civ.App., 81 S.W.2d 827, 829; actually litigated, American
Trust Co. v. Butler, C.C.A.Fla., 47 F.2d 482, 483; Vaughn's
Adm'r v. Louisville & N. R. Co., 297 Ky. 309, 179 S.W.2d
441, 444, 152 A.L.R. 1060; common to both causes of ac-
tion, McKee v. Producers' & Refiners' Corporation, 170 Okl.
559, 41 P.2d 466, 469; Guaranty Trust Co. of New York
v. International Trust Co., 144 Misc. 127, 258 N.Y.S. 465;
necessarily adjudicated, Bassick Mfg. Co. v. Larkin Auto-
motive Parts Co., D.C.I11., 23 F.2d 92, 94; McDowell v.
Harris, Tex.Civ.App., 107 S.W.2d 647, 652.
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JUDGMENT, ESTOPPEL BY
Where subsequent proceeding is on same cause of ac-
tion between same parties a former adjudication is conclu-
sive. Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886,
891.
JUDGMENT EXECUTION. In the judgment on
which it issues, it is a species of execution process,
but as to the garnishee who becomes a party de-
fendant therein it is an original process-a sum-
mons commanding him to appear and show cause,
if any he has, why judgment in favor of the plain-
tiff should not be levied on the goods and effects
of defendant in his hands. Shane v. Commercial
Casualty Ins. Co., D.C.Pa., 48 F.Supp. 151, 156.
JUDGMENT IN PERSONAM OR INTER PAR-
TES. A judgment against a particular person, as
distinguished from a judgment against a thing or
a right or status.
Judgments of the former class, though conclusive even
against strangers, as to the fact of their rendition and the
resultant legal consequences, are not binding as to the is-
sues involved, except upon the parties and their privies,
while judgments of the latter class are conclusive upon all
the world. City of Huntsville v. Goodenrath, 13 Ala.App.
579, 68 So. 676, 680. See the title Judgment In Rem.
Decrees of divorce of other states recovered upon service
by publication are not judgments in personam. Ball v.
Cross, 106 Misc. 184, 174 N.Y.S. 259, 260.
JUDGMENT IN REM. An adjudication pro-
nounced upon the status of some particular thing
or subject matter. Perry v. Edmonds, 59 Nev. 60,
84 P.2d 711, 713; Consolidated Flour Mills Co. of
Kansas v. Sayre Wholesale Grocer Co., 176 Okl.
482, 56 P.2d 781, 784; by a tribunal having com-
petent authority. Booth v. Copley, 283 Ky. 23,
140 S.W.2d 662, 666. It is founded on proceeding
instituted against or on some thing or subject mat-
ter whose status or condition is to be determined,
McCormick v. Blaine, 345 Ill. 461, 178 N.E. 195, 197,
77 A.L.R. 1215; Eureka Building & Loan Ass'n v.
Shultz, 139 Kan. 435, 32 P.2d 477, 480; or one
brought to enforce a right in the thing itself, Fed-
eral Land Bank of Omaha v. Jefferson, 229 Iowa
1054, 295 N.W. 855, 857; Hobbs v. Lenon, 191 Ark.
509, 87 S.W.2d 6, 11. It operates directly upon the
property. Federal Land Bank of Omaha v. Jeffer-
son, 229 Iowa 1054, 295 N.W. 855, 857, 132 A.L.R.
1282; Hobbs v. Lenon, 191 Ark. 509, 87 S.W.2d 6,
11; Guild v. Wallis, 150 Or. 69, 40 P.2d 737, 742.
It is a solemn declaration of the status of some
person or thing. Jones v. Teat, Tex.Civ.App., 57
S.W.2d 617, It is binding upon all persons in
so far as their interests in the property are con-
cerned. Federal Land Bank of Omaha v. Jefferson,
229 Iowa 1054, 295 N.W. 855, 857, 132 A.L.R. 1282.
It is binding upon the world. Booth v. Copley, 283
Ky. 23, 140 S.W.2d 662, 666; Hobbs v. Lenon, 191
Ark. 509, 87 S.W.2d 6, 11.
Various definitions have been given of a judgment in
rem, but all are criticised as either incomplete or com-
prehending too much.
"A very able writer says : 'The distinguishing charac-
teristic of judgments in rem is that, wherever their obliga-
tion is recognized and enforced as against any person, it Is
equally recognized and enforced as against all persons.'
It seems to us that the true definition of a 'judgment in
rem' is 'an adjudication' against some person or thing, or
upon the status of some subject-matter; which, wherever
and whenever binding upon any person, is equally binding
upon all persons." Bartero v. Real Estate Savings Bank,
10 Mo.App. 78.
In Pennoyer v. Neff, 95 U.S. 734, 24 L. Ed. 565, the court
said : "It is true that, in a strict sense, a proceeding in
rem is one taken directly against property, and has for its
object the disposition of property, without reference to
the title of individual claimants; but, in a larger and more
general sense, the terms are applied to actions between
parties, where the direct object is to reach and dispose of
property owned by them, or of some interest therein.
Such are cases commenced by attachment against the prop-
erty of debtors, or instituted to partition real estate, fore-
close a mortgage, or enforce a lien. So far as they affect
property in this state, they are substantially proceedings in
rem in the broader sense which we have mentioned."
JUDGMENT IN RETRAXIT. A "judgment" which
is usually based upon and follows a settlement out
of court, and like a judgment on the merits is a
bar and estops plaintiff from again proceeding in
another suit on same cause of action. Steele v.
Beaty, 215 N.C. 680, 2 S.E.2d 854, 856, 857.
See Retraxit.
JUDGMENT LIEN. A lien binding the real estate
of a judgment debtor, in favor of the holder of
the judgment, and giving the latter a right to levy
on the land for the satisfaction of his judgment to
the exclusion of other adverse interests subsequent
to the judgment. Ashton v. Slater, 19 Minn. 351
(Gil. 300) ; Shirk v. Thomas, 121 Ind. 147, 22 N.E.
976, 16 Am.St.Rep. 381; Jones v. Hall, 177 Va.
658, 15 S.E.2d 108, 111; right to subject land of
judgment debtor to satisfaction of judgment,
Jones v. Hall, 177 Va. 658, 15 S.E.2d 108, 110, 111.
JUDGMENT NOTE. A promissory note, embody-
ing an authorization to any attorney, or to a des-
ignated attorney, or to the holder, or the clerk
of the court, to enter an appearance for the maker
and confess a judgment against him for a sum
therein named, upon default of payment of the
note. Sweeney v. Thickstun, 77 Pa. 131.
JUDGMENT OF BOARD OF DIRECTORS. Deter-
mination by corporate action. Du Bois v. Century
Cement Products Co., 119 N.J.Eq. 472, 183 A. 188,
191.
JUDGMENT OF CONVICTION. Sentence in crim-
inal case, entered in court's minutes. People v.
Mellon, 261 App.Div. 400, 25 N.Y.S.2d 650, 651.
JUDGMENT OF HIS PEERS. A term of expres-
sion borrowed from Magna Charta and means trial
by jury. Ex parte Wagner, 58 Okl.Cr. 161, 50 P.2d_
1135, 1139. A trial by a jury of twelve men ac-
cording to the course of the common law. Fetter
v. Wilt, 46 Pa. 460; State v. Simons, 61 Kan. 752,
60 P. 1052; Newland v. Marsh, 19 Ill. 382.
JUDGMENT PAPER. In English practice. A
sheet of paper containing an incipitur of the plead-
ings in an action at law, upon which final judg-
ment is signed by the master. 2 Tidd, Pr. 930.
JUDGMENT RECORD. In English practice. A
parchment roll, on which are transcribed the whole
proceedings in the cause, deposited and filed of rec-
ord in the treasury of the court, after signing of
judgment. 3 Steph.Comm. 632. In American prac-
tice, the record is signed, filed, and docketed by the'
clerk.
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JUDICIAL
Findings of fact and conclusions of law held part of
"judgment record;" the phrases "judgment roll," "judg-
ment record," and "face of the record" are synonymous.
Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564,
566, 111 A.L.R. 1152.
JUDGMENT ROLL. See Roll.
JUDGMENT RECOVERED. A plea by a defend-
ant that the plaintiff has already recovered that
which he seeks to obtain by his action. This was
formerly a species of sham plea, often put in for
the purpose of delaying a plaintiff's action.
JUDGMENT VOID ON ITS FACE. A judgment or
order is "void on its face" when its invalidity is
apparent upon inspection of judgment roll. Ap-
plication of Behymer, 130 Cal.App. 200, 19 P.2d 829,
830.
JUDICANDUM EST LEGIBUS, NON EXEMP-
LIS. Judgment is to be given according to the
laws, not according to examples or precedents. 4
Coke, 33b; 4 Bl.Comm. 405.
JUDICARE. Lat. In the civil and old English
law. To judge; to decide or determine judicially;
to give judgment or sentence.
JUDICATIO. Lat. In the civil law. Judging;
the pronouncing of sentence after hearing a cause.
Hallifax, Civil Law, b. 3, c. 8, no. 7.
JUDICATORES TERRARUM. Lat. Certain ten-
ants in the county palatine of Chester, who were
bound by their tenures to perform judicial func-
tions.
In case of an erroneous judgment being given by them,
the party aggrieved might obtain a writ of error out of
Chancery, directing them to reform it. They then had 'a
month to consider of the matter. If they declined to re-
form their judgment, the matter came on writ of error be-
fore the king's bench; and if the court of king's bench
held the judgment to be erroneous they forfeited £100 to
the crown by custom. Jenk.Cent. 71.
JUDICATORIES. The term as used designates
that department of government which it was in-
tended should interpret and administer the laws.
In re Opinion of the Justices, 86 N.H. 597, 166 A.
-640, 646.
JUDICATURE. The state or profession of those
officers who are employed in administering justice;
the judiciary.
A judicatory, tribunal, or court of justice.
Jurisdiction; the right of judicial action; the
scope or extent of jurisdiction.
JUDICATURE ACTS (ENGLAND). The acts
under which the present system of courts in Eng-
land was organized and is continued.
The statutes of 36 & 37 Vict. c. 66, and 38 & 39 Vict. c. 77,
which went into force November 1, 1875, with amendments
in 1877, 40 & 41 Vict. c. 9; 1879, 42 & 43 Vict. c. 78; and
1881, 44 & 45 Vict. c. 68,—made most important changes in
the organization of, and methods of procedure in, the
superior courts of England, consolidating them together
so as to constitute one supreme court of judicature, con-
sisting of two divisions,—her majesty's high court of jus-
tice, having chiefly original jurisdiction; and her ma-
jesty's court of appeal, whose jurisdiction is chiefly appel-
late.
JUDICATURE ACTS (IRELAND). The att s of 40
& 41 Vict. c. 57, which went into operation Jan. 1,
1878, established a supreme court of judicature in
Ireland, under which acts and subsequent ones a
system essentially similar in its constitution to
that in England is in force.
JUDICES. Lat. Judges. See Judex.
JUDICES NON TENENTUR EXPRIMERE CAUS-
AM SENTENTLZE SUIE. Judges are not bound to
explain the reason of their sentence. Jenk.Cent.
75.
JUDICES ORDINARII. Lat. Plural of judex or-
dinarius (q. v.).
JUDICES PEDANEI. Lat. Plural of judex pe-
daneus (q. v.).
JUDICES SELECTI, Lat. Plural of judex se-
lectus (q. v.).
JUDICI OFFICIUM SUUM EXCEDENTI NON
PARETUR. A judge exceeding his office (or juris-
diction) is not to be obeyed. Jenk.Cent. p. 139,
case 84. Said of void judgments.
JUDICI SATIS PENA EST, QUOD DEUM HAB-
ET ULTOREM. It is punishment enough for a
judge that he has God as his avenger. 1 Leon.
295.
JUDICIA; JUDICIA PUBLICA. Lat. In Roman
law. Judicial proceedings; trials. Judicia publica,
criminal trials. Dig. 48, 1. See, also, Judicium.
JUDICIA IN CURIA REGIS NON ADNIHILEN-
TUR, SED STENT IN ROBORE SUO QUOUSQUE
PER ERROREM AUT ATTINCTUM ADNULLEN-
TUR. Judgments in the king's court are not to be
annihilated, but to remain in force until annulled
by error or attaint. 2 Inst. 539.
JUDICIA IN DELIBERATIONIBUS CREBRO
MATURESCUNT, IN ACCELERATO PROCESSU
NUNQUAM. Judgments frequently become ma-
tured by deliberations, never by hurried process or
precipitation. 3 Inst. 210.
JUDICIA POSTERIORA SUNT IN LEGE FOR-
TIORA. The later decisions are the stronger in
law. 8 Coke, 97.
JUDICIA SUNT TANQUAM JURIS DICTA, ET
PRO VERITATE ACCIPIUNTUR. Judgments are,
as it were, the sayings of the law, and are received
as truth. 2 Inst. 537.
JUDICIAL. Belonging to the office of a judge; as
judicial authority.
Relating to or connected with the administration
of justice; as a judicial officer.
Having the character of judgment or formal le-
gal procedure; as a judicial act.
Proceeding from a court of justice; as a judi-
cial writ, a judicial determination.
Involving the exercise of judgment or discretion;
as distinguished from ministerial.
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JUDICIAL
Of or pertaining or appropriate to the adminis-
tration of justice, or courts of justice, or a judge
thereof, or the proceedings therein; as, judicial
power, judicial proceedings. ,State v. Freitag, 53
Idaho 726, 27 P.2d 68.
As to judicial "Confession," "Day," "Discretion,"
"Documents," "Estoppel," "Evidence," "Factor,"
"Mortgage," "Notice," "Process," "Record," "Sale,"
"Sequestration," and "Writ," see those titles.
As to quasi judicial, see Quasi Judicial.
JUDICIAL ACT. An act which involves exercise
of discretion or judgment. State ex rel. Allen
v. Rose, 123 Fla. 544, 167 So. 21, 24; In re McGarry,
380 Ill. 359, 44 N.E.2d 7, 10; Wicksel v. Cohen, 262
N.Y. 446, 187 N.E. 634, 635; Dovel v. Bertram, 184
Va. 19, 34 S.E.2d 369, 370.
It is also defined as an act by court or magistrate touch-
ing rights of parties or property brought before it or him
by voluntary appearance, or by prior action of ministerial
officers, Flournoy v. Jeffersonville, 17 Ind. 173, 79 Am. Dec.
468; Union Pac. R. Co. v. U. S., 99 U.S. 700, 761, 25 L.Ed.
496; United States v. Ward, C.C.A.Okl., 257 F. 372, 377;
Board of Com'rs of Atoka County v. Cypert, 65 Oki. 168,
166 P. 195, 198; an act by member of judicial department
in construing law or applying it to a particular state of
facts, State ex rel. Tharel v. Board of Com'rs of Creek
County, 188 Okl. 184, 107 P.2d 542, 549; an act of adminis-
trative board if it goes to determination of some right,
protection of which is peculiar office of courts, Belk's
Dept. Store v. Guilford County, 222 N.C. 441, 23 S.E.2d
897, 902; an act which imposes burdens or confers priv-
ileges according to finding of some person or body wheth-
er a general rule is applicable or according to discretion-
ary judgment as to propriety, Stevens ex rel. Kuberski v.
Haussermann, 113 N.J.L. 162, 172 A. 738, 741; an act which
undertakes to determine a question of right or obligation
or of property as foundation on which it proceeds, Pear-
son v. Reed, 6 Cal.App.2d 277, 44 P.2d 592, 597; determina-
tion of what the law is and what rights of parties are
with reference to transactions already had or thing already
done or happened, Nider v. Homan, 32 Cal.App.2d 11, 89
P.2d 136, 139; Nash v. Brooks, 251 App.Div. 616, 297 N.Y.
S. 853, 855; State v. Ramirez, 34 Idaho 623, 203 P. 279,
282, 29 A.L.R. 297; the action of judge in trying a cause
and rendering a decision, Application of Gleit, 178 Misc.
198, 33 N.Y.S.2d 629, 630, 631.
The act of an administrative or ministerial offi-
cer does not become judicial simply because it
requires some discretion and judgment, but be-
comes judicial only when there is opportunity to
be heard, and the production and weighing of evi-
dence and a decision thereon. People ex rel. Argus
Co. v. Hugo, 101 Misc. 48, 168 N.Y.S. 25, 27; Swee-
ney v. Young, 82 N.H. 159, 131 A. 155, 157, 42 A.
L.R. 757.
Rendition or pronouncement of a judgment is a judicial
act and entry thereof a ministerial act. Peoples Electric
Co-op. v. Broughton, 191 Okl. 229, 127 P.2d 850, 853;
O'Brien v. New York Edison Co., D.C.N.Y., 26 F.Supp.
290, 291; Bailer v. Dowd, 219 Ind. 624, 40 N.E.2d 325, 327.
But if there are matters requiring exercise of court's dis-
cretion, entry of decree is judicial act. Stewart v. Superior
Court in and for Los Angeles County, 3 Cal.App.2d 702,
40 P.2d 529.
JUDICIAL ACTION. An adjudication upon rights
of parties who in general appear or are brought
before tribunal by notice or process, and upon
whose claims some decision or judgment is ren-
dered. Southeastern Greyhound Lines v. Georgia
Public Service Commission, 181 Ga. 75, 181 S.E.
834, 102 A.L.R. 517. Action of a court upon a
cause, by hearing it, and determining what shall be
adjudged or decreed between the parties, and with
which is the right of the case. Rhode Island v.
Massachusetts, 12 Pet. 718, 9 L.Ed. 1233 ; Kerosene
Lamp Heater Co. v. Monitor Oil Stove Co., 41 Ohio
St. 293. When an inferior officer or board is
charged with an administrative act, the per-
formance of which depends upon and requires the
existence or ascertainment of facts, the investiga-
tion and determination of such facts is so-called
judicial action. Austin v. Eddy, 41 S.D. 640, 172
N.W. 517, 518.
Every judicial action involves primary right of plaintiff
and corresponding duty devolving on defendant, breach of
such duty by defendant, remedial right and duty, and
remedy itself. Vinson v. Graham, C.C.A.Okl., 44 F.2d 772,
777; Brice v. Glenn, 165 S.C. 509, 164 S.E. 302, 303; Rad-
osevich v. Engle, 111 Mont. 504, 111 P.2d 299, 303.
JUDICIAL ADMISSION. See Admissions.
JUDICIAL AUTHORITY. The power and authori-
ty appertaining to the office of a judge; jurisdic-
tion; the official right to hear and determine ques-
tions in controversy.
JUDICIAL BUSINESS. Such as involves the ex-
ercise of judicial power, or the application of the
mind and authority of a court to some contested
matter, or the conduct of judicial proceedings, as
distinguished from such ministerial and other
acts, incident to the progress of a cause, as may be
performed by the parties, counsel, or officers of
the court without application to the court or judge.
See Heisen v. Smith, 138 Cal. 216, 71 P. 180, 94
Am.St.Rep. 39; Merchants' Nat. Bank v. Jaffray, 36
Neb. 218, 54 N.W. 258, 19 L.R.A. 316; State v. Cal-
ifornia Min. Co., 13 Nev. 214.
JUDICIAL CIRCUIT. As used in a state constitu-
tion, a term referring to the subdivisions of the
state to each of which one judge shall be assigned
to exercise therein the judicial power conferred by
the constitution upon circuit courts. State v. But-
ler, 70 Fla. 102, 69 So. 771, 779.
JUDICIAL COGNIZANCE. Judicial notice, or
knowledge upon which a judge is bound to act
without having it proved in evidence.
JUDICIAL COMITY. Principle in accordance with
which courts of one state or jurisdiction give effect
to laws and judicial decisions of another state out
of deference and respect, not obligation. Hartford
Accident & Indemnity Co. v. City of Thomasville,
100 Fla. 748, 130 So. 7, 8.
JUDICIAL COMMITTEE OF THE PRIVY COUN-
CIL. In English law. A tribunal established in
1833, composed of members of the privy council,
being judges or retired judges, which acts as the
king's adviser in matters of law referred to it, and
exercises a certain appellate jurisdiction, though
its power in this respect was curtailed by the ju-
dicature act of 1873.
It consists of the Lord Chancellor, the six Lords of Ap-
peal, if Privy Councillors, and such other members of the
Privy Council as have held any high judicial office in the
United Kingdom, India, or the colonies. It is the court
of final appeal from the ecclesiastical courts, from the
courts of India, the colonies, dominions, etc., the Channel
Islands and the Isle of Man, administering all the different
systems of law of the countries under its appellate juris-
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JUDICIAL INQUIRY
diction, and exercising a notable influence on the tenor
and course of law in some of those jurisdictions, especially
Indian law.
JUDICIAL CONVENTION. An agreement entered
into in consequence of an order of court; as, for
example, entering into a bond on taking out a writ
of sequestration. Penniman v. Barrymore, 6 Mart.
N.S., La., 494.
JUDICIAL CY PRES.
Doctrine of "judicial cy pres" is a principle of
construction based on a judicial finding of donor's
intention as applied to new conditions. Rohlff
v. German Old People's Home, 143 Neb. 636, 10
N.W.2d 686, 691.
When only minor features of a trust for charity become
impossible or impracticable of performance and it cannot
properly be said that general scheme of testator has
failed, doctrine of "judicial cy pres" operates to avoid
failure of charity. Noel v. Olds, 78 U.S.App.D.C. 155, 138
F.2d 581, 586, 587.
JUDICIAL DECISION. An opinion or determina-
tion of the judges in causes before them, particu-
larly in appellate courts. Le Blanc v. Illinois Cent.
R. Co., 73 Miss. 463, 19 So. 211. Application by a
court or tribunal exercising judicial authority of
competent jurisdiction of the law to a state of facts
proved, or admitted to be true, and a declaration
of the consequences which follow. In re Knofier's
Estate, 73 Ohio App. 383, 52 N.E.2d 667, 668.
JUDICIAL DECLARATION OF LAW. A rule
adopted as the basis of decision of issues involved.
Trustees of Phillips Exeter Academy v. Exeter, 90
N.H. 472, 27 A.2d 569, 577.
JUDICIAL DEPARTMENT. The branch of gov-
ernment which is intended to interpret, construe
and apply the law. Board of Com'rs of Wyan-
dotte County v. General Securities Corporation,
157 Kan. 64, 138 P.2d 479, 487.
JUDICIAL DICTUM. A dictum made by a court
or judge in the course of a judicial decision or
opinion. Com. v. Paine, 207 Pa. 45, 56 A. 317.
See Dictum.
JUDICIAL DISTRICT. One of the circuits or
precincts into which a state is commonly divided
for judicial purposes, a court of general original
jurisdiction being usually provided in each of such
districts, and the boundaries of the• district mark-
ing the territorial limits of its authority; or the
district may include two or more counties, having
separate and independent county courts, but in
that case they are presided over by the same
judge. See Ex parte Gardner, 22 Nev. 280, 39 P.
570; Lindsley v. Coahoma County Sup'rs, 69 Miss.
815, 11 So. 336; Com. v. Hoar, 121 Mass. 377;
Consolidated Flour Mills Co. v. Muegge, 127 Okl.
295, 260 P. 745, 752.
JUDICIAL DIVORCE. One granted by the sen-
tence of a court of justice, pursuant to general
law. Maclay v. Maclay, 147 Fla. 77, 2 So.2d 361,
363.
JUDICIAL DUTY. One that requires exercise of
judgment or choice of alternatives in its perform-
ance. Board of Education of Nebo School Dist. v.
Jeppson, 74 Utah 576, 280 P. 1065, 1069. One that
requires exercise of judgment or decision of a
question of fact. State ex rel. Coast Holding Co.
v. Ekwall, 144 Or. 672, 26 P.2d 52. One that re-
quires use of discretion or examination of evidence
and decision of questions of law and fact. Taylor
County Farm Bureau v. Board of Sup'rs of Tay-
lor County, 218 Iowa 937, 252 N.W. 498. One that
legitimately pertains to an officer in judicial de-
partment. Harding v. McCullough, 236 Iowa 556,
19 N.W.2d 613, 617; Ex parte Lewis, 328 Mo. 843,
42 S.W.2d 21, 22.
JUDICIAL ERRORS. Errors into which the court
itself falls are "judicial errors." An error of this
character occurs when the judgment rendered is
erroneous in some particular, requiring it to be
changed. Connecticut Mortgage & Title Guaranty
Co. v. Di Francesco, 112 Conn. 673, 151 A. 491, 492.
JUDICIAL ESTOPPEL. Arises from sworn
statements made in course of judicial proceedings.
Clarke v. Ripley Sa y . Bank & Trust Co., 27 Tenn.
App. 387, 181 S.W.2d 386, 389; Helfer v. Mutual
Benefit Health & Accident Ass'n, 170 Tenn. 630, 96
S.W.2d 1103, 1105, 113 A.L.R. 921. The doctrine of
"judicial estoppel" is the doctrine of the conclu-
siveness of the judgments. State v. Ohio Oil Co.,
Tex.Civ.App., 173 S.W.2d 470, 478, 479.
It is based on bad faith, and cannot be asserted unless
sworn statement was made knowingly, or with degree of
negligence authorizing imputation of knowledge. Broyles
v. Scottish Union & National Ins. Co., 16 Tenn.App. 331,
64 S.W. 51:7.
The rule may be invoked only where the prior and sub-
sequent litigation involves the same parties and where
one party has relied on the former testimony and changed
his position by reason of it. Tracy Loan & Trust Co. v.
Openshaw Inv. Co., 102 Utah 509, 132 P.2d 388, 390, 391.
But see holding that judicial estoppel is based on public
policy and not on prejudice to adverse party. Sartain v.
Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313, 316.
JUDICIAL EVIDENCE is the means, sanctioned
by law, of ascertaining in a judicial proceeding
the truth respecting a question.
JUDICIAL FUNCTION. The exercise of the ju-
dicial faculty or office. The capacity to act in the
specific way which appertains to the judicial pow-
er, as one of the powers of government.
The term is used to describe generally those modes of
action which appertain to the judiciary as a department of
organized government, and through and by means of which
it accomplishes its purposes and exercises its peculiar
powers. See State v. Kelly, 27 N.M. 412, 202 P. 524, 528,
21 A.L.R. 156; Lyon v. City of Payette, 38 Idaho 705, 224
P. 793, 794; People v. Hersey, 69 Colo. 492, 196 P. 180, 181,
14 A.L.R. 631; Sauskelonis v. Herting, 89 Conn. 298, 94 A.
368, 369. While ordinarily a case or judicial controversy
within the meaning of Const. art. 3, § 2, results in a judg-
ment requiring award of process of execution to carry it
into effect, such relief is not an indispensable adjunct to
the exercise of the "judicial function." Fidelity Nat.
Bank & Trust Co. of Kansas City v. Swope, 274 U.S. 123,
47 S.Ct. 511, 514, 71 L.Ed. 959.
JUDICIAL INQUIRY. Such inquiry investigates,
declares, and enforces liabilities as they stand on
present or past facts and under laws supposed
already to exist. Oklahoma Gas & Electric Co.
v. Wilson & Co. of Oklahoma, C.C.A.Okl., 54 F.2d
985

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JUDICIAL KNOWLEDGE
596, 598; In re Turnock's Estate, 238 Wis. 438, 300
N.W. 155, 156.
JUDICIAL KNOWLEDGE. Knowledge of that
which is so notorious that everybody, including
judges, knows it, and hence need not be proved.
Ex parte Ferguson, 112 Tex.Cr.R. 152, 15 S.W.2d
650, 652.
JUDICIAL LEGISLATION. See Judge-Made
Law.
JUDICIAL NOTICE. The act by which a court,
in conducting a trial, or framing its decision, will,
of its own motion, and without the production of
evidence, recognize the existence and truth of
certain facts, having a bearing on the controversy
at bar, which, from their nature, are not properly
the subject of testimony, or which are universal-
ly regarded as established by common notoriety,
e. g., the laws of the state, international law, his-
torical events, the constitution and course of na-
ture, main geographical features, etc. North
Hempstead v. Gregory, 53 App.Div. 350, 65 N.Y.S.
867; State v. Main, 69 Conn. 123, 37 A. 80, 36 L.R.
A. 623, 61 Am.St.Rep. 30. The cognizance of cer-
tain facts which judges and jurors may properly
take and act upon without proof, because they al-
ready know them. United States v. Hammers, D.
C.Fla., 241 F. 542, 543.
The true conception of what is "judicially known" is
that of something which is not, or rather need not be,
unless the tribunal wishes it, the subject of either evidence
or argument. Chiulla de Luca v. Board of Park Com'rs of
City of Hartford, 94 Conn. 7, 107 A. 611, 612. The limits of
"judicial notice" cannot be prescribed with exactness, but
notoriety is, generally speaking, the ultimate test of facts
sought to be brought within the realm of judicial notice;
in general, it covers matters so notorious that a production
of evidence would be unnecessary, matters which the ju-
dicial function supposes the judge to be acquainted with
actually or theoretically, and matters not strictly included
under either of such heads. Gottstein v. Lister, 88 Wash.
462, 153 P. 595, 602, Ann.Cas.1917D, 1008.
JUDICIAL OATH. See Oath.
JUDICIAL OFFICE. Offices which relate to the
administration of justice; Waldo v. Wallace, 12
Ind. 569; and which should be exercised by per-
sons of sufficient skill and experience in the duties
which appertain to them. A general term includ-
ing courts of record and courts not of record.
Buckley v. Holmes, 259 Pa. 176, 102 A. 497, 500.
A. term used In 34 & 35 Vict. c. 91, to define qualifications
of additional members of the judicial committee of the
Privy Council.
JUDICIAL OFFICER. The term, in the popular
sense, applies generally to an officer of a court,
but in the strictly legal sense applies only to an
officer who determines causes between parties or
renders decision in a judicial capacity. Hitt v.
State, 182 Miss. 184, 181 So. 331; Alexander v.
Holmes, 180 Ga. 397, 179 S.E. 77, 78. One who ex-
ercises judicial function. Adams v. State, 214 Ind.
603, 17 N.E.2d 84, 118 A.L.R. 1095. A person in
whom is vested authority to decide causes or exer-
cise powers appropriate to a court. Settle v. Van
Evrea, 49 N.Y. 284; People v. Wells, 2 Cal. 203;
Reid v. Hood, 2 Nott & McC., S.C., 170, 10 Am.
Dec. 582,
JUDICIAL OPINION. A term synonymous with
what has been adjudged or decreed and final in
its character. Alleghany Corporation v. Aldebar-
an Corporation, 173 Md. 472, 196 A. 418, 421. See,
also, Opinion.
JUDICIAL ORDER. One which involves exercise
of judicial discretion and affects final result of
litigation. Happy Coal Co. v. Brashear, 263 Ky.
257, 92 S.W.2d 23, 27. See, also, Order.
JUDICIAL POWER. The authority exercised by
that department of government which is charged
with declaration of what law is and its construc-
tion. People v. Bruner, 343 Ill. 146, 175 N.E. 400,
404. The authority vested in courts and judges,
as distinguished from the executive and legisla-
tive power. Gilbert v. Priest, 65 Barb., N.Y., 448;
State ex rel. Jamison v. Denny, 118 Ind. 382, 21
N.E. 252, 4 L.R.A. 79.
It is a power that cannot be brought within ring fence
of a definition, Batty v. Arizona State Dental Board, 5'7
Ariz. 239, 112 P.2d 870, 873. A power involving exercise
of judgment and discretion in determination of questions
of right in specific cases affecting interests of person or
property, as distinguished from ministerial power involv-
ing no discretion, Stanton v. State Tax Commission, 114
Ohio St. 658, 151 N.E. 760, 764; Ward v. Board of Com'rs
of Osfuskee County, 114 Okl. 246, 246 P. 376, 378; inherent
authority not only to decide, but to .make binding orders
or judgments, Fewel v. Fewel, 23 Ca1.2d 431, 144 P.2d 592,
594; power to decide and pronounce a judgment and carry
it into effect between persons and parties who bring a
case before court for decision, Miller, Const. U. S. 314;
Stuart v. Norviel, 26 Ariz. 493, 266 P. 908, 909; Shea v.
North-Butte Mining Co., 55 Mont. 522, 179 P. 499, 503;
Rohde v. City of Newport, 246 Ky. 476, 55 S.W.2d 368, 87
A.L.R. 701; power to declare what law is or has been,
Gorham v. Robinson, 57 R.I. 1, 186 A. 832, 842; State v.
Leuders, 214 N.C. 558, 200 S.E. 22, 23; power to determine
constitutionality and validity of legislative acts, Cohen v.
Virginia, 6 Wheat. 264, 5 L.Ed. 257; Marbury v. Madison,
1 Cranch, 137, 2 L. Ed. 60; Wilentz v. Hendrickson, 133 N.
J.Eq. 447, 33 A.2d 366, 390; although this is still sometimes
challenged, power to determine what is the law applicable
to a case, to apply that law to the case, and to render
judgment accordingly, Kuhnert v. United States; D.C.Mo.,
36 F.Supp. 798, 800; power to hear and determine, contro-
versies between adverse parties and questions in litigation,
In re Sanderson, 289 Mich. 165, 286 N.W. 198, 199; Citi-
zen's Club v. Welling, 83 Utah 81, 27 P.2d 23; contro-
versies between public officers, state, counties, cities, and
other municipal corporations, subdivisions of state and
state bonding board, Laverty v. Cochran, 132 Neb. 118, 271
N.W. 354; matters which affect the life, liberty, or prop-
erty of the citizens of the state, Nash v. Brooks, 297 N.Y.S.
853, 856, 251 App.Div. 616; rights of persons or property,
or the propriety of doing an act, In re McGarry, 44 N.E.2d
7, 10, 380 Ill. 359; Geauga Lake Improvement Ass'n v.
Lozier, 182 N.E. 489, 491, 125 Ohio St. 565. Power that
adjudicates upon and protects the rights and interests of
persons or property, and to that end declares, construes
and applies the law, In re Hunstiger, 130 Minn. 474, 153
N.W. 869, 870; People ex rel. Rusch v. White, 334 Ill. 465,
166 N.E. 100, 106, 64 A.L.R. 1006; In re Assessment of
Kansas City Southern Ry. Co., 168 Oki. 495, 33 P.2d 772,
775; power that determines whether rules of action pre-
scribed by the legislature have been transgressed in par-
ticular case, In re Manufacturer's Freight Forwarding Co.,
294 Mich. 57, 292 N.W. 678, 680.
Power vested in a subordinate body to determine a
question of fact is a "judicial power." Shells v. Flynn,
164 Misc. 302, 299 N.Y.S. 64, 80.
JUDICIAL PROCEEDING. Any proceeding
wherein judicial action is invoked and taken. Man-
nix v. Portland Telegram, 144 Or. 172, 23 P.2d 138,
90 A.L.R. 55. Any proceeding to obtain such
remedy as the law allows. Treloar v. Harris, 66
986

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JUDICIUM
Ind.App. 59, 117 N.E. 975, 978. Any step taken
in a court of justice in the prosecution or defense
of an action. National Homestead Ass'n v. Gra-
ham, 176 La. 1062, 147 So. 348, 352.
A general term for proceedings relating to, practiced in,
or proceeding from, a court of justice; or the course pre-
scribed to be taken in various cases for the determination
of a controversy or for legal redress or relief. See Martin
v. Simpkins, 20 Colo. 438, 38 P. 1092; Mullen v. Reed, 64
Conn. 240, 29 A. 478, 24 L.R.A. 664, 42 Am.St.Rep. 174;
Aldrich v. Kinney, 4 Conn. 386, 10 Am. Dec. 151. A pro-
ceeding in a legally constituted court. Garrett v. State, 18
Ga.App. 360, 89 S.E. 380. A proceeding wherein there are
parties, who have opportunity to be heard, and wherein
the tribunal proceeds either to a determination of facts
upon evidence or of law upon proved or conceded facts.
Mitchel v. Cropsey, 177 App.Div. 663, 164 N.Y.S. 336, 339.
JUDICIAL QUESTION. One proper for the deter-
mination of a court of justice, as distinguished
from such questions as belong to the decision of
the legislative or executive departments of govern-
ment and with which the courts will not interfere,
called "political" or "legislative" questions. See
Patton v. Chattanooga, 108 Tenn. 197, 65 S.W.
414.
JUDICIAL REMEDY. Such as is administered by
the courts of justice, or by judicial officers em-
powered for that purpose by the constitution and
laws of the state. Code Civ.Proc.Cal. § 20; Code
Civ.Proc.Mont.1895, § 3469 (Rev.Codes 1921, §
8995).
JUDICIAL SEPARATION. A separation of man
and wife by decree of court, less complete than an
absolute divorce. A "limited divorce" or a "di-
vorce a mensa et thoro," Maclay v. Maclay, 147
Fla. 77, 2 So.2d 361, 363.
JUDICIAL STATISTICS. In English law. Statis-
tics, published by authority, of the civil and crim-
inal business of the United Kingdom, and matters
appertaining thereto. Annual reports are pub-
lished separately for England and Wales, for Ire-
land, and for Scotland.
JUDICIARY, adj. Pertaining or relating to the
courts of justice, to the judicial department of
government, or to the administration of justice.
JUDICIARY, n. That branch of government in-
vested with the judicial power; the system of
courts in a country; the body of judges; the
bench. That branch of government which is in-
tended to interpret, construe and apply the law.
Board of Com'rs of Wyandotte County v. General
Securities Corporation, 157 Kan. 64, 138 P.2d 479,
487.
JUDICIARY ACT. The name commonly given to
the act of congress of September 24, 1789, (1 St.
at Large. 73,) by which the system of federal
courts was organized, and their powers and juris-
diction defined.
JUDICIIS POSTERIORIBUS FIDES EST ADHI-
BENDA. Faith or credit is to be given to the later
judgments. 13 Coke, 14.
JUDICIO SISTI. Lat. A caution, or security,
given in Scotch courts for the defendant to abide
judgment within the jurisdiction. Stim.Law Gloss.
JUDICIOUSLY. Directed by sound judgment.
Shivers v. Stovall, Tex.Civ.App., 75 S.W.2d 276,
279.
JUDICIS EST IN PRONUNTIANDO SEQUI REG-
ULAM, EXCEPTIONE NON PROBATA. The
judge in his decision ought to follow the rule,
when the exception is not proved.
JUDICIS EST JUDICARE SECUNDUM ALLEGA-
TA ET PROBATA. Dyer, 12. It is the duty of a
judge to decide according to facts alleged and
proved.
JUDICIS EST JUS DICERE, NON DARE. It is
the province of a judge to declare the law, not to
give it. Lofft, Append. 42.
JUDICIS OFFICIUM EST OPUS DIEI IN DIE
SUO PERFICERE. It is the duty of a judge to
finish the work of each day within that day.
Dyer, 12.
JUDICIS OFFICIUM EST UT RES, ITA TEM-
PORA RER1UM, QUIERERE. It is the duty of a
judge to inquire into the times of things, as well
as into things themselves. Co.Litt. 171.
JUDICIUM. Lat. Judicial authority or jurisdic-
tion; a court or tribunal; a judicial hearing or
other proceeding; a verdict or judgment; a pro-
ceeding before a judex or judge. State v. Whit-
ford, 54 Wis. 150, 11 N.W. 424.
JUDICIUM A NON SUO JUDICE DATUM NUL-
LIUS EST MOMENTI. 10 Coke, 70. A judgment
given by one who is not the proper judge is of
no force.
JUDICIUM CAPITALE. In old English law.
Judgment of death; capital judgment. Fleta, lib.
1, c. 39, § 2. Called, also, "judicium vitce amission-
is," judgment of loss of life. Id. lib. 2, c. 1, § 5.
JUDICIUM DEL In old English and European
law. The judgment of God; otherwise called "di-
vinum judicium," the "divine judgment."
A term particularly applied to the ordeals by fire or hot
iron and water, and also to the trials by the cross, the
eucharist, and the corsned, and the duellum or trial by bat-
tle, (q. v.,) it being supposed that the interposition of
heaven was directly manifest, in these cases, in behalf of
the innocent. Spelman; Burrill.
JUDICIUM EST QUASI JURIS DICTUM. Judg-
ment is, as it were, a declaration of law.
JUDICIUM NON DEBET ESSE ILLUSORIUM;
SUUM EFFECTUM HABERE DEBET. A judg-
ment ought not to be illusory; it ought to have its
proper effect. 2 Inst. 341.
JUDICIUM PARIUM. In old English law. Judg-
ment of the peers; judgment of one's peers; trial
by jury. Magna Charta, c. 39.
JUDICIUM REDDITUR IN INVITUM. Co.Litt.
248b. Judgment is given against one, whether he
will or not.
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JUDICIUM
JUDICIUM (SEMPER) PRO VERITATE AC-
CIPITUR. A judgment is always taken for truth
[that is, as long as it stands in force it cannot be
contradicted]. 2 Inst. 380; Co.Litt. 39a, 168a.
JUG. In old English law. A watery place.
Domesday; Cowell.
JUGE. In French law. A judge.
JUGE DE PAIX. An inferior judicial function-
ary, appointed to decide summarily controversies
of minor importance, especially such as turn main-
ly on questions of fact. He has also the func-
tions of a police magistrate. Ferriêre.
JUGE D'INSTRUCTION. See Instruction.
JUGERUM. An acre. Co.Litt. 5b. As much as
a yoke (jugum) of oxen could plow in one day.
JUGULATOR. In old records. A cutthroat or
murderer. Cowell.
JUGUM. Lat. In the civil law. A yoke; a meas-
ure of land; as much land as a yoke of oxen could
plow in a day. Nov. 17, c. 8.
JUGUM TERRJE. In old English law. A yoke of
land; half a plow-land. Domesday; Co.Litt. 5a;
Cowell.
JUICIO. In Spanish law. A trial or suit. White,
New Recop. b. 3, tit. 4, c. 1.
JUICIO DE APEO. The decree of a competent
tribunal directing the determining and marking
the boundaries of lands or estates.
JUICIO DE CONCURSO DE ACREEDORES. The
judgment granted for a debtor who has various
creditors, or for such creditors, to the effect that
their claims be satisfied according to their respec-
tive form and rank, when the debtor's estate is not
sufficient to discharge them all in full. Escriche.
JULIAN LAW. See Lex Julia.
JUMENT. In old Scotch law. An ox used for til-
lage. 1 Pitc.Crim.Tr. pt. 2, p. 89.
JUMENTA. In the civil law. Beasts of burden;
animals used for carrying burdens. This word did
not include "oxen." Dig. 32, 65, 5.
JUMMABUNDY. See Jammabundy.
JUMP BAIL. To abscond, withdraw, or secrete
one's self, in violation of the obligation of a bail-
bond.
The expression is colloquial, and is applied only to the
act of the principal.
JUNCARIA. In old English law. The soil where
rushes grow. Co.Litt. 5a; Cowell.
JUNCTA JUVANT. United they aid. A portion
of the maxim, "Quce non valeant singula juncta
juvant," (q. v.,) frequently cited. 3 Man. & G. 99.
JUNGERE DUELLUM. In old English law. To
join the duellum; to engage in the combat. Fleta,
lib. 1, c. 21, § 10.
JUNIOR. Younger.
This has been held to be no part of a man's name, but an
addition by use, and a convenient distinction between a
father and son of the same name. Cobb v. Lucas, 15 Pick.,
Mass., 9; Padgett v. Lawrence, 10 Paige, N.Y., 177, 40 Am.
Dec. 232; Prentiss v. Blake, 34 Vt. 460; Maxwell v. State,
65 So. 732, 734, 11 Ala.App. 53.
As to junior "Barrister," "Counsel," "Creditor,"
"Judgment," and "Writ," see those titles.
JUNIOR EXECUTION. One which was issued
after the issuance of another execution, on a dif-
ferent judgment, against the same defendant.
JUNIOR RIGHT. A custom prevalent in some
parts of England (also at some places on the con-
tinent) by which an estate descended to the young-
est son in preference to his older brothers; the
same as "Borough-English."
JUNIPERUS SABINA. In medical jurisprudence.
This plant is commonly called "savin."
JUNK. Worn out and discarded material in gen-
eral that may be turned to some use; especially
old rope, chain, iron, copper, parts of machinery
and bottles gathered or bought up by tradesmen
called junk dealers; hence rubbish of any kind;
odds and ends. City of Chicago v. Iroquois Steel
& Iron Co., 284 Ill.App. 561, 1 N.E.2d 241, 243; Ex
parte Scott, 130 Tex.Cr.R. 29, 91 S.W.2d 748, 749.
Articles that have outlived their usefulness in their orig-
inal form, and are commonly gathered up and sold to be
converted into another product, either of the same or of
a different kind, City of Watseka v. Blatt, 320 Ill.App. 191,
50 N.E.2d 589, 594; old iron, or other base metals, old
rope, rags, waste paper, etc., and empty bottles, and all
articles discarded or no longer used as a manufactured
article composed of any one or more of the materials men-
tioned. Beskin v. City of Chicago, 341 III. 489, 173 N.E.
364, 367.
JUNK—SHOP. A shop where old cordage and
ships' tackle, old iron, rags, bottles, paper, etc.,
are kept and sold. A place or shop where odds and
ends are purchased and sold. Charleston City
Council v. Goldsmith, 12 Rich.Law (S.C.) 470;
Grace Iron & Steel Corporation v. Ackerman, 123
N.J.L. 54, 7 A.2d 820, 821.
JUNTA, or JUNTO. A select council for taking
cognizance of affairs of great consequence requir-
ing secrecy; a cabal or faction.
This was a popular nickname applied to the Whig
ministry in England, between 1693-1696. They clung to
each other for mutual protection against the attacks of the
so-called "Reactionist Stuart Party." In this sense, more
properly called "junto."
JURA. Lat. Plural of "jus." Rights; laws. 1
Bl.Comm. 123. See Jus.
JURA ECCLESIASTICA LIMITATA SUNT IN-
FRA LIMITES SEPARATOS. Ecclesiastical laws
are limited within separate bounds. 3 Bulst. 53.
JURA EODEM MODO DESTITUUNTUR QUO
CONSTITUUNTUR. Laws are abrogated by the
same means [authority] by which they are made.
Broom, Max. 878.
JURA FISCALIA. In English law. Fiscal rights;
rights of the exchequer. 3 Bl.Comm. 45.
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JURARE
JURA IN RE. In the civil law. Rights in a thing;
rights which, being separated from the dominium,
or right of property, exist independently of it,
and are enjoyed by some other person than him
who has the dominium. Mackeld. Rom.Law, §
237.
JURA MAJESTATIS. Rights of sovereignty or
majesty; a term used in the civil law to designate
certain rights which belong to each and every
sovereignty and which are deemed essential to its
existence. Gilmer v. Lime Point, 18 Cal. 250.
JURA MIXTI DOMINII. In old English law.
Rights of mixed dominion. The king's right or
power of jurisdiction was so termed. Hale, Anal.
§ 6.
JURA NATURIE SUNT IMMUTABILIA. The
laws of nature are unchangeable. Branch, Princ.
JURA PERSONARUM. Rights of persons; the
rights of persons. Rights which concern and are
annexed to the persons of men. 1 Bl.Comm. 122.
JURA PRiEDIORUM. In the civil law. The
rights of estates. Dig. 50, 16, 86.
JURA PUBLICA ANTEFERENDA PRIVATIS.
Public rights are to be preferred to private. Co.
Litt. 130a. Applied to protections.
JURA PUBLICA EX PRIVATO [PRIVATIS]
PROMISCUE DECIDI NON DEBENT. Public
rights ought not to be decided promiscuously with
private. Co. Litt. 130a, 181b.
JURA REGALIA. In English law. Royal rights
or privileges. 1 Bl.Comm. 117, 119; 3 Bl.Comm.
44.
JURA REGIA. In English law. Royal rights;
the prerogatives of the crown. Crabb, Com.Law,
174.
JURA REGIS SPECIALIA NON CONCEDUN-
TUR PER GENERALIA VERBA. The special
rights of the king are not granted by general
words. Jenk. Cent. p. 103.
JURA RERUM. Rights of things; the rights of
things; rights which a man may acquire over ex-
ternal objects or things, unconnected with his per-
son. 1 Bl.Comm. 122; 2 Bl.Comm. 1.
JURA SANGUINIS NULLO JURE CIVIL! DIR-
MEI POSSUNT. The right of blood and kindred
cannot be destroyed by any civil law. Dig. 50, 17,
9; Bac.Max. reg. 11; Broom, Max. 533; Jackson
v. Phillips, 14 Allen (Mass.) 562.
JURA SUMMI IMPERIL Rights of supreme do-
minion; rights of sovereignty. 1 BI.Comm. 49;
1 Kent, Comm. 211.
JURAL. 1. Pertaining to natural or positive
right, or to the doctrines of rights and obligations;
as "jural relations."
2. Of or pertaining to jurisprudence; juristic;
juridical.
3. Recognized or sanctioned by positive law;
embraced within, or covered by, the rules and en-
actments of positive law.
4. Founded in law; organized upon the basis
of a fundamental law, and existing for the recog-
nition and protection of rights.
The "jural sphere" is to be distinguished from the
"moral sphere;" the latter denoting the whole scope or
range of ethics or the science of conduct, the former em-
bracing only such portions of the same as have been made
the subject of legal sanction or recognition.
The term "jural society" is used as the synonym of
"state" or "organized political community."
JURAMENTX CORPORALES. Lat. Corporal
oaths, q. v.
JURAMENTUM. Lat. In the civil law. An oath.
JURAMENTUM CALUMNI2E. In the civil and
canon law. The oath of calumny.
An oath imposed upon both parties to a suit, as a pre-
liminary to its trial, to the effect that they are not in-
fluenced by malice or any sinister motives in prosecuting or
defending the same, but by a belief in the justice of their
cause. It was also required of the attorneys and proctors.
JURAMENTUM CORPORALIS. A corporal oath.
See Corporal Oath.
JURAMENTUM EST INDIVISIBILE; ET NON
EST ADMITTENDUM IN PARTE VERUM ET
IN PARTE FALSUM. An oath is indivisible; it
is not to be held partly true and partly false. 4
Inst. 274.
JURAMENTUM IN LITEM. In the civil law. An
assessment oath; an oath, taken by the plaintiff in
an action, that the extent of the damages he has
suffered, estimated in money, amounts to a cer-
tain sum, which oath, in certain cases, is accepted
in lieu of other proof. Mackeld. Rom.Law, § 376.
JURAMENTUM JUDICIALE. In the civil law.
An oath which the judge, of his own accord, de-
fers to either of the parties.
It is of two kinds : First, that which the judge defers
for the decision of the cause, and which is understood by
the general name "juramentum judiciale," and is 'some-
times called "suppletory oath," juramentum suppletorium;
second, that which the judge defers in order to fix and de-
termine the amount of the condemnation which he ought
to pronounce, and which is called "juramentum in litem."
Poth. Obl. p. 4, c. 3, § 3, art. 3.
JURAMENTUM NECESSARIUM, In Roman
law. A compulsory oath.
A disclosure under oath, which the praetor compelled
one of the parties to a suit to make, when the other, ap-
plying for such an appeal, agreed to abide by what his ad-
versary should swear. 1 Whart. Ev. § 458; Dig. 12, 2, 5, 2.
JURAMENTUM VOLUNTARIUM. In Roman
law. A voluntary oath.
A species of appeal to conscience, by which one of the
parties to a suit, instead of proving his case, offered to
abide by what his adversary should answer under oath.
1 Whart. Ev. § 458; Dig. 12, 2, 34, 6.
JURARE. Lat. To swear; to take an oath.
JURARE EST DEUM IN TESTEM VOCARE, ET
EST ACTUS DIVINI CULTUS. 3 Inst. 165. To
swear is to call God to witness, and is an act of
religion.
•
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JURAT
JURAT. Certificate of officer or person before
whom writing was sworn to. Murphy v. State,
103 S.W.2d 765, 766, 132 Tex.Cr.R. 202; Gossard
v. Vawter, 215 Ind. 581, 21 N.E.2d 416, 417. The
clause written at the foot pf an affidavit, stating
when, where, and before whom such affidavit was
sworn. See U. S. v. McDermott, 140 U.S. 151, 11
S.Ct. 746, 35 L.Ed. 391; U. S. v. Julian, 162 U.S.
324, 16 S.Ct. 801, 40 L.Ed. 984; Lutz v. Kinney, 46
P. 257, 23 Nev. 279.
JURATA. In old English law. A jury of twelve
men sworn. Especially, a jury of the-common law,
as distinguished from the assisa.
The jury clause in a nisi prius record, so called
from the emphatic words of the old forms: "Jur-
ata ponitur in respectum," the jury is put in re-
spite. Townsh.P1. 487.
Also a jurat, (which see.)
JURATION. The act of swearing; the adminis-
tration of an oath.
JURATO CREDITUR IN JUDICIO. He who
makes oath is to be believed in judgment. 3 Inst.
79.
JURATOR. A juror; a compurgator, (q. v.).
JURATORES DEBENT ESSE VICINI, SUFFICI-
ENTES, ET MINUS SUSPECT!. Jurors ought to
be neighbors of sufficient estate, and free from
suspicion. Jenk. Cent. 141.
JURATORES SUNT JUDICES FACTI. Jenk.
Cent. 61. Juries are the judges of fact.
JURATORY CAUTION. In Scotch law. A de-
scription of caution (security) sometimes offered
in a suspension or advocation where the complain-
er is not in circumstances to offer any better.
Bell.
JURATS. In English law. Officers in the nature
of aldermen, sworn for the government of many
corporations. The twelve assistants of the bailiff
in Jersey are called "jurats."
JURE. Lat. By right; in right; by the law.
JURE BELLI. By the right or law of war. 1
Kent, Comm. 126; 1 C.Rob.Adm. 289.
JURE CIVIL!. By the civil law. Inst. 1, 3, 4;
1 Bl.Comm. 423.
JURE CORON2E. In right of the crown.
JURE DIVINO. By divine right. 1 Bl.Comm.
191.
JURE ECCLESIZE. In right of the church. 1
Bl.Comm. 401.
JURE EMPHYTEUTICO. By the right or law
of emphyteusis. 3 Bl.Comm. 232. See Emphy-
teusis.
JURE GENTIUM. By the law of nations. Inst.
1, 3, 4; 1 Bl.Comm. 423.
JURE NATUR2E LEQUUM EST NEMINEM CUM
ALTERIUS DETRIMENTO ET INJURIA FIERI
LOCUPLETIOREM. By the law of nature it is
not just that any one should be enriched by the
detriment or injury of another. Dig. 50, 17, 206.
JURE PROPINQUITATIS. By right of propin-
quity or nearness. 2 Crabb, Real Prop. p. 1019,
§ 2398.
JURE REPRESENTATIONIS. By right of repre-
sentation; in the right of another person. 2 Bl.
Comm. 224, 517; 2 Crabb, Real Prop. p. 1019, §
2398.
JURE UXORIS. In right of a wife. 3 Bl.Comm.
210.
JURI NON EST CONSONUM QUOD ALIQUIS
ACCESSORIUS IN CURIA REGIS CONVINCA-
TUR ANTEQUAM ALIQUIS DE FACTO FUERIT
ATTINCTUS. It is not consonant to justice that
any accessary should be convicted in the king's
court before any one has been attainted of the fact.
2 Inst. 183.
JURIDICAL. Relating to administration of jus-
tice, or office of a judge.
Regular; done in conformity to the laws of
the country and the practice which is there ob-
served.
JURIDICAL DAY. Day on which court is in ses-
sion. Black v. National Bank of Kentucky, 226
Ky. 152, 10 S.W.2d 629, 630.
JURIDICUS. Lat. Relating to the courts or to
the administration of justice; juridical; lawful.
JURIS. Lat. Of right; of law.
JURIS AFFECTUS IN EXECUTIONE CONSIST-
IT. The effect of the law consists in the execu-
tion. Co. Litt. 289b.
JURIS ET DE JURE. Of law and of right.
A presumption juris et de jure, or an irrebutable pre-
sumption, is one which the law will not suffer to be re-
butted by any counter-evidence, but establishes as conclu-
sive ; while a presumption juris tantum is one which holds
good in the absence of evidence to the contrary, but may
be rebutted.
JURIS ET SEISINAE CONJUNCTIO. The union
of seisin or possession and the right of possession,
forming a complete title. 2 Bl.Comm. 199, 311.
JURIS IGNORANTIA EST CUM JUS NOSTRUM
IGNORAMUS. It is ignorance of the law when
we do not know our own rights. Haven v. Foster,
9 Pick. (Mass.) 130, 19 Am.Dec. 353.
JURIS POSITIVI. Of positive law; a regulation
or requirement of positive law, as distinguished
from natural or divine law. 1 Bl.Comm. 439; 2
Steph.Comm. 286.
JURIS PRIECEPTA SUNT HIEC: HONESTE VI-
VERE; ALTERUM NON L1EDERE; SUUM CU-
IQUE TRIBUERE. These are the precepts of
the law: To live honorably; to hurt nobody; to
render to every one his due. Inst. 1, 1, 3; 1 Bl.
Comm. 40.
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JURISDICTION
JURIS PRIVATI. Of private right; subjects of
private property. Hale, Anal. § 23.
JURIS PUBLICI. Of common right; of common
or public use; such things as, at least in their
own use, are common to all the king's subjects;
as common highways, common bridges, common
rivers, and common ports. Hale, Anal. § 23.
JURIS UTRUM. In English law. An abolished
writ which lay for the parson of a church whose
predecessor had alienated the lands and tenements
thereof. Fitzh. Nat, Brev. 48.
JURISCONSULT. A jurist; a person skilled in
the science of law, particularly of international
or public law.
JURISCONSULTUS. Lat. In Roman law. An
expert in juridical science; a person thoroughly
versed in the laws, who was habitually resorted
to, for information and advice, both by private
persons as his clients, and also by the magistrates,
advocates, and others employed in administering
justice. Abbreviated i-ctus.
JURISDICTIO EST POTESTAS DE PUBLICO IN-
TRODUCTA, CUM NECESSITATE JURIS
CENDI. Jurisdiction is a power introduced for
the public good, on account of the necessity of dis-
pensing justice. 10 Coke, 73a.
JURISDICTION. The word is a term of large
and comprehensive import, and embraces every
kind of judicial action. Federal Land Bank of
Louisville, Ky., v. Crombie, 258 Ky. 383, 80 S.W.2d
39, 40; McGowin v. McGowin, 122 Fla. 394, 165
So. 274, 275, 276. It is the authority by which
courts and judicial officers take cognizance of and
decide cases. Board of Trustees of Firemen's Re-
lief and Pension Fund of City of Marietta v.
Brooks, 179 Okl. 600, 67 P.2d 4, 6; Morrow v. Cor-
bin, 122 Tex. 553, 62 S.W.2d 641; State v. Barnett,
110 Vt. 221, 3 A.2d 521, 526; the legal right by
which judges exercise their authority. Max Ams,
Inc. v. Barker, 293 Ky. 698, 170 S.W.2d 45, 48; It
exists when court has cognizance of class of cases
involved, proper parties are present, and point to
be decided is within issues. Noxon Chemical Pro-
ducts Co. v. Leckie, C.C.A.N.J., 39 F.2d 318, 319;
United Cemeteries Co. v. Strother, 342 Mo. 1155,
119 S.W.2d 762, 765; Harder v. Johnson, 147 Kan,
440, 76 P.2d 763, 764.
It is the authority, capacity, power or right to act, Camp-
bell v. City of Plymouth, 293 Mich. 84, 291 N.W. 231, 232;
Industrial Addition Ass'n v. Commissioner of Internal Rev-
enue, Tenn., 323 U.S. 310, 65 S.Ct. 289, 291, 292, 89 L.Ed.
260; adjudicate, Morrow v. Corbin, 122 Tex. 553, 62 S.W.
2d 641; Iselin v. La Coste, C.C.A.La., 147 F.2d 791, 795;
Sheldon v. Powell, 99 Fla. 782, 128 So. 258, 263; Broduer
v. Broduer, 53 R.I. 450, 167 A. 104, 106; carry into execu-
tion or enforce sentence, judgment or decree, Morrow v.
Corbin, 122 Tex. 553, 62 S.W.2d 641; U. S. v. Arredondo,
6 Pet. 691, 8 L.Ed. 547; Johnson v. Jones, 2 Neb. 135;
Federal Land Bank of Louisville, Ky. v. Crombie, 258 Ky.
383, 80 S.W.2d 39, 40;- compel parties to come before court
or body, Great Lakes Stages v. Public Utilities Commis-
sion of Ohio, 120 Ohio St. 491, 166 N.E. 404, 406; deal with
general abstract question, Thompson v. Terminal Shares,
C.C.A.Mo., 89 F.2d 652, 655; deal with subject matter,
U. S. v. Sanders, D.C.Tex., 42 F.Supp. 436, 439, 440; decide,
Gossett v. Hensley, Tex.Civ.App., 94 S.W.2d 903, 906;
Klancher v. Anderson, 113 Colo. 478, 158 P.2d 923, 925;
Mattice v. Kingston Trust Co., 33 N.Y.S.2d 799, 801, 178
Misc. 256; including questions of law as well as of fact,
Schlosser v. Welsh, D.C.S.D., 5 F.Supp. 993, 996; Atwood
v. Cox, 88 Utah 437, 55 P.2d 377, 381; May Coal & Grain
Co. v. Kansas City, Mo., C.C.A.Mo., 73 F.2d 345, 348;
declare, expound, administer or apply the law, Long
Flame Coal Co. v. State Compensation Com'r, 111 W.Va.
409, 163 S.E. 16, 19; Svitojus v. Kurant, 293 Mich. 291. 292
N.W. 637, 645; Johnson v. Harvey, 261 Ky. 522, 88 S.W.2d
42, 46; Max Ams, Inc., v. Barker, 293 Ky. 698, 170 S.W.2d
45, 48; Rasmusson v. Schmalenberger, 60 N.D. 527, 235
N.W. 496. 499; State ex rel. Moser v. District Court of
Ninth Judicial Dist. in and for Pondera County, Mont., 116
Mont. 305, 151 P.2d 1002, 1006; determine action. contro-
versy, or question, Fooks' Ex'rs v. Ghineher, 172 Md. 612,
192 A. 782, 786; U. S. v. Crittenden, D.C.N.Y., 24 F.Sunp.
84, 88; Hawk v. Hollowell, D.C.Iowa, 1 F.Sunp. 885, 887;
People ex rel. Carlstrom v. Shurtleff, 355 Ill. 210, 189 N.E.
291; dispose of cause, Stewart v. Sampson, 285 Ky. 447. 148
S.W.2d 278. 280, 281; do justice, In re McMurray, D.C.
Iowa, 8 F.Supp. 449, 452; Svitojus v. Kurant. 293 Mich.
291, 292 N.W. 637, 645; enter on inquiry, Berkman v.
Levy, Tex.Civ.App., 129 S.W.2d 397. 398; American Co-on.
Serum Ass'n v. Anchor Serum Co., D.C.I11., 38 F.Sunp. 313,
315; Janssen v. Tusha, 68 S.D. 639, 5 N.W.2d 684, 686;
enter order, judgment, or decree, Harrison v. Barngrover,
Tex.Civ.App., 72 S.W.2d 971, 975; People ex rel. Soko11 v.
Municipal Court of Chicago, 359 Ill. 102, 194 N.E. 242;
entertain suit or controversy, Walling v. Miller, C.C.A.
Minn., 138 F.2d 629, 631, 633; In re Trustees of Milwaukee
County Orphans' Board, 218 Wis. 518, 261 N.W. 676, 680;
Mann v. Morrison, 106 Utah 15, 144 P.2d 543, 545; examine
whether court has power to hear and determine contro-
versy, Acadia Land Co. v. Horuff, C.C.A.La., 110 F.2d 354,
355; exercise judicial authority or power, Howe v. Lisbon.
Say . Bank & Trust Co., 111 Vt. 201, 14 A.2d 3, 5; Thomp-
son v. Short, 6 Wash.2d 71, 106 P.2d 720. 726, 728; Rhode
Island v. Massachusetts, 12 Pet. 657. 717. 9 L.Ed. 1233;
govern, People v. Pierce, 41 N.Y.S. 858, 860, 18 Misc. 83;
hear and determine. Abbott; Ex parte Meisner, 30 Cal.
Anp.2d 290, 86 P.2d 124, 125 ; State v. Hampson, 9 Wash.2d
278, 114 P.2d 992. 993; Roddy v. Fitzgerald's Estate, 113
Vt. 472, 35 A.2d 668. 670; hear without determining, Gray
v. Hall, 203 Cal. 306, 265 P. 246. 251; inquire into facts,
Rasmusson v. Schmalenberger, 60 N.D. 527. 235 N.W. 496,
499; McGowin v. McGowin, 122 Fla. 394. 165 So. 274, 275,
276; Arganbright v. Good, 46 Cal.App.2d Sup p . 877, 116
P.2d 186; make laws. People v. Pierce, 41 N.Y.S. 858, 860,
18 Misc. 83; litigate controversy between parties, Morrow
v. Corbin, 122 Tex. 553, 62 S.W.2d 641; pronounce sentence
of law or award remedies provided by law, 1 Black,
Judgm. § 215. State v. Barnett, 110 Vt. 221, 3 A.2d 521,
526; put wheels of justice in motion and to proceed to
determination of cause, Employers Reinsurance Cor p ora-
tion v. Bryant, Tex., 299 U.S. 374. 57 S.Ct. 273, 277, 81
L.Ed. 289; render, declare or make judgment, order or
decree, High v. Pearce, 220 N. C. 266, 17 S.E.2d 108. 112;
McGowin v. McGowin, 122 Fla. 394, 165 So. 274, 275. 276;
Reed v. Woodmen of the World, 94 Mont. 374. 22 P.2d 819;
Thayer v. Village of Downers Grove, 369 Ill. 334, 16 N.E.2d
717, 719; take cognizance, Dailey v. Brennan, 123 W.Va.
261, 14 S.E.2d 617, 618; Western Grocer Co. v. Glenn, 226
Iowa 1374, 286 N.W. 441, 442; try, Robinette v. Price, 214
Minn. 521, 8 N.W.2d 800, 804; try dispute as to right to
possession of property in replevin, Universal Credit Co. v.
Antonsen, 374 Ill. 194, 29 N.E.2d 96, 99, 130 A.L.R. 626.
It is the power of him who has the right of judging',
Gliptis v. Fifteen Oil Co., 204 La. 896, 16 So.2d 471, 477;
the power of judicatories and courts, McGowin v. MC-
Gowin, 122 Fla. 394, 165 So. 274, 275, 276; •Arganbright v.
Good, 46 Cal.App.2d Supp. 877, 116 P.2d 186; Shaffer v.
Bank, 201 N.C. 415, 160 S.E. 481, 482. It is power con-
ferred by the Constitution or by law, Corby v. Dooley, 313
Ill. App. 509, 40 N.E.2d 581, 584; National Life Co. v. Rice,
140 Tex. 315, 167 S.W.2d 1021, 1024; State ex rel. Andrews
v. Superior Court of Maricopa County, 39 Ariz. 242, 5 P.
2d 192, 194.
It is of three kinds, of the subject-matter, of the person,
and to render particular judgment which was given. City
of Phcenix v. Rodgers, 44 Ariz. 40, 34 P.2d 385, 388. The
word may include or refer to jurisdiction of particular
case, Brown v. State, 219 Ind. 251, 37 N.E.2d 73, 78, 137
A.L.R. 679; or jurisdiction of subject matter, Manning v.
Baxter, 281 Ky. 659, 136 S.W.2d 1074, 1076; jurisdiction of
subject matter and of the person, Stewart v. Sampson, 285
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JURISDICTION
Ky. 447, 148 S.W.2d 278, 280, 281; Moffatt v. Cassimus, 28
Ala.App. 582, 190 So. 297, 298; State Board of Dental
Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693, 695; juris-
diction of subject matter, of the person, and to render the
particular judgment which was given, Wall v. Superior
Court of Yavapai County, 53 Ariz. 344, 89 P.2d 624, 628.
Or it may mean only venue, Fiolat v. Minnesota-Atlantic
Transit Co., D.C.Minn., 31 F.Supp. 219, 220. It does not
depend either upon the regularity of exercise of power to
hear and determine or upon correctness or rightfulness of
decision made, Mattice v. Kingston Trust Co., 33 N.Y.S.2d
799, 801, 178 Misc. 256; Thompson v. Terminal Shares,
C.C.A.Mo., 89 F.2d 652, 655; Klancher v. Anderson, 113
Colo. 478, 158 P.2d 923, 925; or on the ability of the judge
to reason correctly or to act incorruptibly, In re Gardi-
ner's Estate, 45 Cal.App.2d 559, 114 P.2d 643, 645.
The amount claimed in good faith is the test of jurisdic-
tion, Gray v. Blight, C.C.A.Colo., 112 F.2d 696, 700;
Schwartz v. California Claim Service, 52 Cal.App.2d 47,
125 P.2d 883, 889.
"Jurisdiction of subject-matter" means jurisdiction of
class of cases to which particular case belongs. Honea v.
Graham, Tex.Civ.App., 66 S.W.2d 802, 804; McFarlin v.
McFarlin, 384 Ill. 428, 51 N.E.2d 520, 521; Ferree v. Fer-
ree, 285 Ky. 825, 149 S.W.2d 719, 721; the nature of the
cause of action and relief sought, Mid-City Bank & Trust
Co. v. Myers, 343 Pa. 465, 23 A.2d 420, 423; Wilson v. State
Highway Commissioner, 174 Va. 82, 4 S.E.2d 746, 751; or
the amount for which a court of limited jurisdiction is
authorized to enter judgment, Moffatt v. Cassimus, 28 Ala.
App. 582, 190 So. 297, 298. It is power to: adjudge con-
cerning general question involved, Parker Bros. v. Fagan,
C.C.A.Fla., 68 F.2d 616, 617; Balzer v. Pyles, 350 Ill. 344,
183 N.E. 215, 217; In re Gibson's Will, Sur., 40 N.Y.S.2d
727, 733; adjudge whether facts make proper case for
jurisdictional consideration by judge, Behee v. Beem, 156
Kan. 115, 131 P.2d 675, 677: Montgomery v. Equitable Life
Assur. Soc. of U. S., C.C.A.I11., 83 F.2d 758, 761; deal with
general abstract question, to hear particular facts in any
case relating to such question, and to determine whether
they are sufficient to invoke exercise of power, Melton v.
Jenkins, 50 Ga.App. 615, 178 S.E. 754; State ex rel. Camp-
bell v. Chapman, 145 Fla. 647, 1 So.2d 278, 281; City of
Phoenix v. Greer, 43 Ariz. 214, 29 P.2d 1062, 1064; decide
rightly or wrongly, Montgomery v. Equitable Life Assur.
Soc. of U. S., C.C.A.Ill., 83 F.2d 758, 761; determine every
justiciable issue involved, Spencer v. Gypsy Oil Co., C.C.A.
Okl., 142 F.2d 935, 937; hear and determine cases of gen-
eral class to which proceeding belongs, Noxon Chemical
Products Co. v. Leckie, C.C.A.N.J., 39 F.2d 318, 320;
Brown v. Jacobs, 367 Ill. 545, 12 N.E.2d 10, 12.
"Jurisdiction of the person" is power to subject parties
in a particular case to decisions and rulings made in such
case, Collins v. Powell, 224 Iowa 1015, 277 N.W. 477, 481.
For "Appellate Jurisdiction," "Concurrent Juris-
diction," "Contentious Jurisdiction," "Co-Ordinate
Jurisdiction," "Criminal Jurisdiction," "Excess of
Jurisdiction," "Exclusive Jurisdiction," "Foreign
Jurisdiction," "General Jurisdiction," "Limited Ju-
risdiction," "Pendent Jurisdiction," "Probate Juris-
diction," "Special Jurisdiction," "Summary Juris-
diction," "Territorial Jurisdiction," and "Voluntary
Jurisdiction," see those titles. For equity jurisdic-
tion, see "Equity." For original jurisdiction, see
"Original."
JURISDICTION CLAUSE. In equity practice.
That part of a bill which is intended to give juris-
diction of the suit to the court, by a general aver-
ment that the acts complained of are contrary to
equity, and tend to the injury of the complainant,
and that he has no remedy, or not a complete
remedy, without the assistance of a court of
equity, is called the "jurisdiction clause." Mitf.
Eq.P1. 43.
JURISDICTIONAL. Pertaining or relating to ju-
risdiction; conferring jurisdiction; showing or
disclosing jurisdiction; defining or limiting juris-
diction; essential to jurisdiction.
JURISDICTIONAL AMOUNT. Amount involved
in the particular case, Shabotzky v. Massachu-
setts Mut. Life Ins. Co., D.C.N.Y., 21 F.Supp.
166, 167; sum of all claims that are properly
joined, Gray v. Blight, C.C.A.Colo., 112 F.2d 696,
700; value of the object sought to be attained in
the litigation, Mountain States Power Co. v. City
of Forsyth, D.C.Mont., 41 F.Supp. 389, 390; Ronzio
v. Denver & R. G. W. R. Co., C.C.A.Utah, 116 F.2d
604, 606.
JURISDICTIONAL FACTS. Those matters of fact
which must exist before the court can properly
take jurisdiction of the particular case, as, that the
defendant has been properly served with process,
that the amount in controversy exceeds a certain
sum, that the parties are citizens of different
states, etc. Noble v. Railroad Co., 147 U.S. 165, 13
S.Ct. 271, 37 L.Ed. 123.
JURISDICTIONAL PLEA. While all dilatory
pleas are sometimes referred to as "jurisdictional
pleas," yet, strictly speaking, only those pleas
to the jurisdiction of the court are "jurisdiction-
al." Howe v. Lisbon Sa y . Bank & Trust Co., 111
Vt. 201, 14 A.2d 3, 10.
JURISDICTIONAL STATEMENT. A statement
in appellant's brief that concisely and clearly in-
forms the Supreme Court of the exact ground on
which the Supreme Court's jurisdiction is claimed
to rest, and refers briefly to the constitutional pro-
visions and decided cases sustaining such claim of
jurisdiction. Andrew County v. Maxwell, 347 Mo.
156, 146 S.W.2d 621, 623.
JURISINCEPTOR. Lat. A student of the civil
law.
JURISPERITUS. Lat. Skilled or learned in the
law.
JURISPRUDENCE. The philosophy of law, or the
science which treats of the principles of positive
law and legal relations.
"The term is wrongly applied to actual systems of law,
or to current views of law, or to suggestions for its amend-
ment, but is the name of a science. This science is a for-
mal, or analytical, rather than a material, one. It is the
science of actual or positive law. It is wrongly divided
into 'general' and 'particular,' or into 'philosophical' and
'historical.' It may therefore be defined as the formal
science of positive law." Holl.Jur. 12.
In the proper sense of the word, "jurisprudence" is the
science of law, namely, that science which has for its
function to ascertain the principles on which legal rules
are based, so as not only to classify those rules in their
proper order, and show the relation in which they stand to
one another, but also to settle the manner in which new or
doubtful cases should be brought under the appropriate
rules. Jurisprudence is more a formal than a material
science. It has no direct concern with questions of moral
or political policy, for they fall under the province of
ethics and legislation; but, when a new or doubtful case
arises to which two different rules seem, when taken lit-
erally, to be equally applicable, it may be, and often is,
the function of jurisprudence to consider the ultimate
effect which would be produced if each rule were applied
to an indefinite number of similar cases, and to choose
that rule which, when so applied, will produce the greatest
advantage to the community. Sweet.
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JURY
For "Comparative Jurisprudence" and "Medical
Jurisprudence," see those titles. For equity juris-
prudence, see "Equity."
JURISPRUDENTIA. Lat. In the civil and com-
mon law. Jurisprudence, or legal science.
JURISPRUDENTIA EST DIVINARUM ATQUE
HUMANARUM RERUM NOTITIA, JUST! ATQUE
INJUSTI SCIENTIA. Jurisprudence is the knowl-
edge of things divine and human, the science of
what is right and what is wrong. Dig. 1, 1, 10, 2;
Inst. 1, 1, 1. This definition is adopted by Bracton,
word for word. Bract. fol. 3.
JURISPRUDENTIA LEGIS COMMUNIS AN-
GLUE EST SCIENTIA SOCIALIS ET COPIOSA.
The jurisprudence of the common law of England
is a science social and comprehensive. 7 Coke, 28a.
JURIST. One who is versed or skilled in law; an-
swering to the Latin "jurisperitus," (q. v.).
One who is skilled in the civil law, or law of na-
tions. The term is now usually applied to those
who have distinguished themselves by their writ-
ings on legal subjects.
JURISTIC. Pertaining or belonging to, or charac-
teristic of, jurisprudence, or a jurist, or the legal
profession.
JURISTIC ACT. One designed to have a legal ef-
fect, and capable thereof.
An act of a private individual directed to the ori-
gin, termination, or alteration of a right. Webster,
Dict., citing T. E. Holland.
JURNEDUM. In old English law. A journey; a
day's traveling. Cowell.
JURO. In Spanish law. A certain perpetual pen-
sion, granted by the king on the public revenues,
and more especially on the salt-works, by favor,
either in consideration of meritorious services, or
in return for money loaned the government, or
obtained by it through forced loans. Escriche.
JUROR. One member of a jury.
The term is not inflexible, and besides a person who has
been accepted and sworn to try a cause "juror" may also
mean a person selected for jury service. Green v. Smither,
Ky., 199 S.W. 1056; People v. Newmark, 312 Ill. 625, 144
N.E. 338, 340. The term may apply to special jurors as
well as members of regular panel. Beavers v. State, 187
Ark. 722, 61 S.W.2d 1113. Sometimes, one who takes an
oath; as in the term "non-juror," a person who refuses
certain oaths.
JUROR DESIGNATE. A juror who has been
drawn as a juror. Summers v. State ex rel. Boy-
kin, 66 Ga.App. 648, 19 S.E.2d 28, 31.
JUROR'S BOOK. A list of persons qualified to
serve on juries.
JURY. In practice. A certain number of men,
selected according to law, and sworn (jurati) to
inquire of certain matters of fact, and declare the
truth upon evidence to be laid before them. This
definition embraces the various subdivisions of
juries; as grand jury, petit jury, common jury,
special jury, coroner's jury, sheriff's jury, (q. v.)Black's Law Dictionary Revised 4th Ed.-63
A jury is a body of men temporarily selected from the
citizens of a particular district, and invested with power to
present or indict a person for a public offense, or to try
a question of fact. Code Civil Proc.Cal. § 190.
As understood at common law and as used in constitu-
tional provision, "jury" imports body of twelve men. State
v. Dalton, 206 N.C. 507, 174 S.E. 422, 424; People ex rel.
Cooley v. Wilder, 255 N.Y.S. 218, 222, 234 App.Div. 256;
Hall v. Brown, 129 Kan. 859, 284 P. 396.
"Jury trial" is not merely a trial by twelve men, but by
twelve men selected by law, with judge who passes on
many legal questions and has limited supervision over
trial. Universal Truck Loading Co. v. Taylor, 178 Miss.
143, 172 So. 756, 757.
The right to "jury trial" guaranteed by Federal Consti-
tution is the right of trial by jury as it existed at common
law. Diederich v. American News Co., C.C.A.Okl., 128
F.2d 144, 145, 146.
The right to "jury trial" of controverted issues implies
a trial by an impartial and qualified jury. Alexander v.
R. D. Crier & Sons Co., 181 Md. 415, 30 A.2d 757, 759.
The "jury trial" guaranteed by Federal Constitution
means trial by jury of 12 men in presence and under
superintendence of judge empowered to instruct them on
the law and advise them on the facts and, except on acquit-
tal of criminal charge, to set aside their verdict if in
judge's opinion it is contrary to law or evidence. Died-
erich v. American News Co., C.C.A.Okl., 128 F.2d 144, 145,
146.
The terms "jury" and "trial by jury," as used in the
constitution, mean twelve competent men, disinterested
and impartial, not of kin, nor personal dependents of
either of the parties, having their homes within the kjuris-
dictional limits of the court, drawn and selected by officers
free from all bias in favor of or against either party, duly
impaneled and sworn to render a true verdict according to
the law and the evidence. State v. McClear, 11 Nev. 39;
H. Wagman & Co. v. Schafer Motor Freight Service, 4
N.Y.S.2d 526, 529, 167 Misc. 681.
Common Jury
In practice. The ordinary kind of jury by which
issues of fact are generally tried, as distinguished
from a special jury, (q. v.).
Fair and Impartial Jury
See Fair and Impartial Jury.
Foreign Jury
A jury obtained from a county other than that
in which issue was joined.
Grand Jury
A jury of inquiry who are summoned and re-
turned by the sheriff to each session of the crim-
inal courts, and whose duty is to receive com-
plaints and accusations in criminal cases, hear the
evidence adduced on the part of the state, and find
bills of indictment in cases where they are satis-
fied a trial ought to be had. They are first sworn,
and instructed by the court.
This is called a "grand jury" because it comprises a
greater number of jurors than the ordinary trial jury or
"petit jury." At common law, a grand jury consisted of
not less than twelve nor more than twenty-three men, and
this is still the rule in many of the states, though in some
the number is otherwise fixed by statute; thus in Oregon
and Utah, the grand jury is composed of seven men; in
South Dakota, not less than six nor more than eight; in
Texas, twelve; in Idaho, sixteen; in Washington, twelve
to seventeen; in North Dakota, sixteen to twenty-three;
in California, nineteen; in New Mexico, twenty-one. See
Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L. Ed. 849; In re
Gardiner, 64 N.Y.S. 760, 31 Misc. 364; Finley v. State, 61
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JURY
Ala. 204; People v. Duff, 65 How.Prac., N.Y., 365; Eng-
lish v. State, 31 Fla. 340, 12 So. 689; Jones v. McClaughry,
169 Iowa, 281, 151 N.W. 210, 216.
Mixed Jury
A bilingual jury; a •jury of the half-tongue. See
De Medietat Lingu ae. Also a jury composed
partly of negroes and partly of white men.
Petit Jury
The ordinary jury of twelve men for the trial
of a civil or criminal action. So called to distin-
guish it from the grand jury.
A petit jury is a body of twelve men impaneled and
sworn in a district court, to try and determine, by a true
and unanimous verdict, any question or issue of fact, in
any civil or criminal action or proceeding, according to
law and the evidence as given them in the court. Gen.St.
Minn.1878, c. 71, § 1 (M.S.A. § 593.01).
Pix Jury
See Pix.
Special Jury
A jury ordered by the court, on the motion of
either party, in cases of unusual importance or
intricacy. Called, from the manner in which it
is constituted, a "struck jury." 3 Bl.Comm. 357.
A jury composed of persons above the rank of
ordinary freeholders; usually summoned to try
questions of greater importance than those usually
submitted to common juries. Brown.
Struck Jury
See Striking A Jury.
Trial Jury
The jury participating in the trial of a given
case; or a jury summoned and impaneled for the
trial of a case, and in this sense a petit jury as dis-
tinguished from a grand jury.
A body of men returned from the citizens of a particular
district before a court or officer of competent jurisdiction,
and sworn to try and determine, by verdict, a question of
fact. Code Civ.Proc.Cal. § 193.
JURY ACTION. What was before adoption of
Federal Rules of Civil Procedure an action at law
is a "jury action", Ryan Distributing Corporation
v. Caley, D.C.Pa., 51 F.Supp. 377, 379; Ransom v.
Staso Milling Co.,\ D.C.Vt., 2 F.R.D. 128, 131.
JURY SOX. The place in court (strictly an in-
closed place) where the jury sit during the trial
of a cause. 1 Archb.Pr.K.B. 208; 1 Burrill, Pr.
455.
JURY COMMISSIONER. An officer charged with
the duty of selecting the names to be put into the
jury wheel, or of drawing the panel of jurors for
a particular term of court.
JURY-LIST. A paper containing the names of
jurors impaneled to try a cause, or it contains the
names of all the jurors summoned to attend court.
JURY OF GOOD AND LAWFUL MEN. A jury of
12 good and lawful men. State v. Emery, 224 N.C.
581, 31 S.E.2d 858, 861,
JURY OF MATRONS. See Matrons, Jury Of.
JURY PROCESS. The process by which a jury is
summoned in a cause, and by which their attend-
ance is enforced.
JURY WHEEL. A machine containing the names
of persons qualified to serve as grand and .petit
jurors, from which, in an order determined by the
hazard of its revolutions, are drawn a sufficient
number of such names to make up the panels for a
given term of court.
JURYMAN. A juror; one who is impaneled on
a jury.
JURYWOMAN. One member of a jury of ma-
trons; a woman juror.
JUS. Lat. In Roman law. Right; justice; law;
the whole body of law; also a right. The term is
used in two meanings:
1. "Jus" means "law," considered in the abstract; that
is, as distinguished from any specific enactment, the
science or department of learning, or quasi personified
factor in human history or conduct or social development,
which we call, in a general sense, "the law." Or it means
the law taken as a system, an aggregate, a whole ; "the
sum total of a number of individual laws taken together."
Or it may designate some one particular system or body of
particular laws; as in the phrases "jus civile," "jus gen-
tium," "jus prcetorium."
2. In a second sense, "jus" signifies "a right;" that is,
a power, privilege, faculty, or demand inherent in one per-
son and incident upon another; or a capacity residing in
one person of controlling, with the assent and assistance
of the state, the actions of another. This is its meaning in
the expressions "jus in rem," "jus accrescendi," "jus pos-
sessionis."
It is thus seen to possess the same ambiguity as the
words "droit," "recht," and "right," (which see.)
Within the meaning of the maxim that "ignorantia juris
non excusat" (ignorance of the law is no excuse), the word
"jus" is used to denote the general law or ordinary law of
the land, and not a private right. Churchill v. Bradley, 58
Vt. 403, 5 A. 189, 56 Am.Rep. 563; Cooper v. Fibbs, L.R.
2 H.L. 149; Freichnecht v. Meyer, 39 N.J.Eq. 561.
The continental jurists seek to avoid this ambiguity in
the use of the word "jus," by calling its former significa-
tion "objective," and the latter meaning "subjective."
Thus Mackeldey (Rom.Law, § 2) says : "The laws of the
first kind [compulsory or positive laws] form law [jus] in
its objective sense, [jus est norma agendi, law is a rule of
conduct.] The possibility resulting from law in this sense
to do or require another to do is law in its subjective
sense, [jus est facultas agendi, law is a license to act.]
The voluntary action of man in conformity with the pre-
cepts of law is called 'justice,' [justitia.J"
Some further meanings of the word are:
An action. Bract. fol. 3. Or, rather, those proceedings
in the Roman action which were conducted before the
praetor.
Power or authority. Sui juris, in one's own power;
independent. Inst. 1, 8, pr. ; Bract. fol. 3. Alieni juris,
under another's power. Inst. 1, 8, pr.
The profession (ars) or practice of .the law. Jus ponitur
pro ipsa arte. Bract. fol. 2b.
A court or judicial tribunal, (locus in quo redditur jus.)
Id. fol. 3.
JUS ABSTINENDI. The right of renunciation;
the right of an heir, under the Roman law, to re-
nounce or decline the inheritance, as, for example,
where his acceptance, in consequence of the ne-
cessity of paying the debts, would make it a bur-
den to him. See Mackeld.Rom.Law, § 733.
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JUS CIVILE
JUS ABUTENDI. The right to abuse. By this
phrase is understood the right to do exactly as one
likes with property, or having full dominion over
property. 3 Toullier, no. 86.
JUS ACCRESCENDI. The right of survivorship.
In re Brogan's Estate, 165 Misc. 111, 300 N.Y.S.
447, 455. The right of the survivor or survivors
of two or more joint tenants to the tenancy or
estate, upon the death of one or more of the joint
tenants. In re Capria's Estate, 89 Misc. 101, 151
N.Y.S. 385, 386.
JUS ACCRESCENDI INTER MERCATORES,
PRO BENEFICIO COMMERCII, LOCUM NON
HABET. The right of survivorship has no place
between merchants, for the benefit of commerce.
Co.Litt. 182a; 2 Story, Eq.Jur. § 1207; ' Broom,
Max. 455. There is no survivorship in cases of
partnership, as there is in joint-tenancy. Story,
Partn. § 90.
JUS ACCRESCENDI PRZEFERTUR ONERIBUS.
The right of survivorship is preferred to encum-
brances. 185a. Hence no dower or cur-
tesy can be claimed out of a joint estate. 1 Steph.
Comm. 316.
JUS ACCRESCENDI PRIEFERTUR ULTIMAE
VOLUNTATI. The right of survivorship is pre-
ferred to the last will. Co.Litt. 185b. A devise of
one's share of a joint estate, by will, is no sever-
ance of the jointure; for no testament takes ef-
fect till after the death of the testator, and by such
death the right of the survivor (which accrued
at the original creation of the estate, and has
therefore a priority to the other) is already vest-
ed. 2 Bl.Comm. 186; 3 Steph.Comm. 316.
JUS ACTUS. In Roman law. A rural servitude
giving to a person a passage for carriages, or for
cattle.
JUS AD REM. A term of the civil law, meaning
"a right to a thing;" that is, a right exercisable by
one person over a particular article of property in
virtue of a contract or obligation incurred by an-
other person in respect to it, and which is en-
forceable only against or through such other
person. It is thus distinguished from jus in re,
which is a complete and absolute dominion over
a thing available against all persons.
The disposition of modern writers is to use the term "jus
ad rem" as descriptive of a right without possession, and
"jus in re" as descriptive of a right accompanied by pos-
session. Or, in a somewhat wider sense, the former
denotes an inchoate or incomplete right to a thing ; the
latter, a complete and perfect right to a thing. See The
Carlos F. Roses, 177 U.S. 655, 20 S.Ct. 803, 44 L.Ed. 929;
The Young Mechanic, 30 Fed.Cas. 873.
In canon law. A right to a thing. An inchoate
and imperfect right, such as is gained by nomina-
tion and institution; as distinguished from jus
in re, or complete and full right, such as is ac-
quired by corporal possession. 2 Bl.Comm. 312.
JUS ZELIANUM. A body of laws drawn up by
Sextus IElius, and consisting of three parts, where-
in were explained, respectively: (1) The laws of
the Twelve Tables; (2) the interpretation of and
decisions upon such laws; and (3) the forms of
procedure. In date, it was subsequent to the jus
Flavianum, (q. v.). Brown.
JUS ZEQUUM. Equitable law. A term used by
the Romans to express the adaptation of the law
to the circumstances of the individual case as op-
posed to jus strictum (q. v.).
JUS 1ESNECLE. The right of primogeniture
(q. v.).
JUS ALBINATUS. The droit d'aubaine (q. v.).
See Albinatus Jus.
JUS ANGARLE. See Angaria; Angary, Right of.
JUS ANGLORUM. The laws and customs of the
West Saxons, in the time of the Heptarchy, by
which the people were for a long time governed,
and which were preferred before all others. Whar-
ton.
JUS AQUAE HAUSTUS. In Roman law. A rural
servitude giving to a person a right of watering
cattle on another's field, or of drawing water
from another's well.
JUS AQUIEDUCTUS. In the civil law. The name
of a servitude which gives to the owner of land
the right to bring down water through or from
the land of another.
JUS BANCI. In old English law. 'The right of
bench.
The right or privilege of having an elevated and separate
seat of judgment, anciently allowed only to the king's
judges, who hence were said to administer high justice,
(summam administrant justitiam.) Blount.
JUS BELLI. The law of war. The law of nations
as applied to a state of war, defining in particular
the rights and duties of the belligerent powers
themselves, and of neutral nations.
The right of war; that which may be done with-
out injustice with regard to an enemy. Gro. de
Jure B. lib. 1, c. 1, § 3.
JUS BELLUM DICENDI. The right of proclaim-
ing war.
JUS CANONICUM. The canon law.
JUS CIVILE. Civil law. The system of law pe-
culiar to one state or people. Inst. 1, 2, 1. Partic-
ularly, in Roman law, the civil law of the Roman
people, as distinguished from the jus gentium.
The term is also applied to the body of law called,
emphatically, the "civil law."
The jus civile and the jus gentium are distinguished in
this way. All people ruled by statutes and customs use a
law partly peculiar to themselves, partly common to all
men. The law each people has settled for itself is peculiar
to the state itself, and Is called "jus civile," as being
peculiar to that very state. The law, again, that natural
reason has settled among all men,—the law that is guarded
among all peoples quite alike,—is called the "jus gen-
tium," and all nations use it as if law. The Roman people,
therefore, use a law that is partly peculiar to itself, partly
common to all men. Hunter, Rom. Law, 38.
But this is not the only, or even the general, use of the
words. What the Roman jurists had chiefly in view, when
they spoke of "jus civile," was not local as opposed to
cosmopolitan law, but the old law of the city as contrasted
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JUS CIVILE EST
with the newer law introduced by the praetor, (jus prce-
torium, jus honorarium.) Largely, no doubt, the jus gen-
tium corresponds with the jus prcetorium; but the cor-
respondence is not perfect. Id. 39.
JUS CIVILE EST QUOD SIBI POPULUS CON-
STITUIT. The civil law is what a people estab-
lishes for itself. Inst. 1, 2, 1; Jackson v. Jackson,
1 Johns., N.Y., 424, 426.
JUS CIVITATUS. The right of citizenship; the
freedom of the city of Rome. It differs from jus
quiritium, which comprehended all the privileges
of a free native of Rome. The difference is much
the same as between "denization" and "naturaliza-
tion" with us. Wharton.
JUS CLOACAE. In the civil law. The right of
sewerage or drainage. An easement consisting
in the right of having a sewer, or of conducting
surface water, through the house or over the
ground of one's neighbor. Mackeld. Rom. Law, §
317.
JUS COMMUNE.
In the Civil law. Common right; the common
and natural rule of right, as opposed to jus singu-
lars, (q. v.). Mackeld. Rom. Law, § 196.
In English law. The common law, answering
to the Saxon "folcright." 1 Bl.Comm. 67.
JUS CONSTITUI OPORTET IN HIS QU1E UT
PLURIMUM ACCIDUNT NON QUIE EX INOP-
INATO. Laws ought to be made with a view to
those cases which happen most frequently, and
not to those which are of rare or accidental oc-
currence. Dig. 1, 3, 3; Broom, Max. 43.
JUS CORONAE. In English law. The right of
the crown, or to the crown; the right of succes-
sion to the throne. 1 Bl.Comm. 191; 2 Steph.
Comm. 434.
JUS CUDENDJE MONETZE. In old English law.
The right of coining money. 2 How. State Tr. 118.
JUS CURIALITATIS. In English law. The right
of curtesy. Spelman.
JUS DARE. To give or to make the law; the func-
tion and prerogative of the legislative department.
JUS DELIBERANDI. In the civil law. The right
of deliberating.
A term granted by the proper officer at the request of
him who is called to the inheritance, (the heir,) within
which he has the right to investigate its condition and to
consider whether he will accept or reject it. Mackeld.Rom.
Law, § 742; Civ.Code La. art. 1026 (Civ.Code, art. 1033).
JUS DESCENDIT, ET NON TERRA. A right
descends, not the land. Co. Litt. 345.
JUS DEVOLUTUM. The right of the church of
presenting a minister to a vacant parish, in case
the patron shall neglect to exercise his right with-
in the time limited by law.
JUS DICERE. To declare the law; to say what
the law is. The province of a court or judge. 2
Eden, 29; 3 P.Wms. 485.
JUS DICERE, ET NON JUS DARE. To declare
the law, not to make it. 7 Term 696; Arg. Barry
v. Mandell, 10 Johns., N.Y., 563, 566; 7 Exch. 543;
2 Eden 29; 4 C.B. 560, 561; Broom, Max. 140.
JUS DISPONENDI. The right of disposing.
An expression used either generally to signify the right
of alienation, as when we speak of depriving a married
woman of the jus disponendi over her separate estate, or
specially in the law relating to sales of goods, where it is
often a question whether the vendor of goods has the
intention of reserving to himself the jus disponendi;  e.,
of preventing the ownership from passing to the pur-
chaser, notwithstanding that he (the vendor) has parted
with the possession of the goods. Sweet.
JUS DISTRAHENDI. The right of sale of goods
pledged in case of non-payment. See Pledge; Dis-
tress.
JUS DIVIDEND!. The right of disposing of real-
ty by will. Du Cange.
JUS DUPLICATUM. A double right; the right of
possession united with the right of property; oth-
erwise called "droit-droit." 2 Bl.Comm. 199.
JUS EDICERE, JUS EDICENDI. The right to
issue edicts. It belonged to all the higher magis-
trates, but special interest is attached to the prw-
torian edicts in connection with the history of
Roman law. See Praetor.
JUS EST ARS BONI ET i rEQUI. Law is the
science of what is good and just. Dig. 1, 1, 1, 1;
Bract. fol. 2b.
JUS EST NORMA RECTI; ET QUICQUID EST
CONTRA NORMAM RECTI EST INJURIA. Law
is a rule of right; and whatever is contrary to
the rule of right is an injury. 3 Bulst. 313.
JUS ET FRAUS NUNQUAM COHABITANT.
Right and fraud never dwell together. 10 Coke,
45a. Applied to the title of a statute. Id.; Best,
Ev. p. 250, § 205.
JUS EX INJURIA NON ORITUR. A right does
(or can) not rise out of a wrong. Broom, Max.
738, note; 4 Bing. 639.
JUS EX NON SCRIPTO. Law constituted by cus-
tom or such usage as indicates the tacit consent
of the community.
JUS FALCANDI. The right of mowing or cutting.
Fleta, lib. 4, c. 27, § 1. The right of cutting wood.
Bract. fol. 231.
JUS FECIALE. In Roman law. The law of arms,
or of heralds. A rudimentary species of interna-
tional law founded on the rites and religious cere-
monies of the different peoples.
JUS FIDUCIARIUM. In the civil law. A right
in trust; as distinguished from jus legitimum, a
legal right. 2 Bl.Comm. 328.
JUS FLAVIANUM. In old Roman law. A body
of laws drawn up by Cneius Flavius, a clerk of
Appius Claudius, from the materials to which he
had access. It was a popularization of the laws.
Mackeld. Rom. Law, § 39.
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JUS LATH
JUS FLUMINUM. In the civil law. The right
to the use of rivers. Locc. de Jure Mar. lib. 1, c.
6.
JUS FODIENDI. In the civil and old English
law. A right of digging on another's land. Inst.
2, 3, 2; Bract. fol. 222.
JUS FUTURUM. In the civil law. A future right;
an inchoate, incipient, or expectant right, not yet
fully vested.
It may be either "jus delatum," when the subsequent
acquisition or vesting of it depends merely on the will of
the person in whom it is to vest, or "jus nondum dela-
tum," when it depends on the future occurrence of other
circumstances or conditions. Mackeld.Rom.Law, § 191.
JUS GENTIUM. The law of nations. That law
which natural reason has established among all
men is equally observed among all nations, and is
called the "law of nations," as being the law
which all nations use. Inst. 1, 2, 1; Dig. 1, 1, 9; 1
Bl.Comm. 43; 1 Kent, Comm. 7; Mackeld. Rom.
Law, § 125.
Although this phrase had a meaning in the Roman law
which may be rendered by our expression "law of
nations," it must not be understood as equivalent to what
we now call "international law," its scope being much
wider. It was originally a system of law, or more properly
equity, gathered by the early Roman lawyers and magis-
trates from the common ingredients in the customs of the
old Italian tribes,—those being the nations, gentes, whom
they had opportunities of observing,—to be used in cases
where the jus civile did not apply ; that is, in cases
between foreigners or between a Roman citizen and a for-
eigner. The principle upon which they proceeded was that
any rule of law which was common to all the nations they
knew of must be intrinsically consonant to right reason,
and therefore fundamentally valid and just. From this it
was an easy transition to the converse principle, viz., that
any rule which instinctively commended itself to their
sense of justice and reason must be a part of the jus gen-
tium. And so the latter term came eventually to be about
synonymous with "equity," (as the Romans understood it,)
or the system of praetorian law.
Modern jurists frequently employ the term "jus gentium
privatum" to denote private international law, or that sub-
ject which is otherwise styled the "conflict of laws;" and
"jus gentium publicum" for public international law, or
the system of rules governing the intercourse of nations
with each other as persons.
JUS GLADIL The right of the sword; the exe-
cutory power of the law; the right, power, or pre-
rogative of punishing for crime. 4 Bl.Comm. 177.
JUS HABENDI. The right to have a thing. The
right to be put in actual possession of property.
Lewin, Trusts, 585.
JUS HABENDI ET RETINENDI. A right to have
and to retain the profits, tithes, and offerings, etc.,
of a rectory or parsonage.
JUS HIEREDITATIS. The right of inheritance.
JUS HAURIENDI. In the civil and old English
law. The right of drawing water. Fleta, lib. 4,
c. 27, § 1.
JUS HONORARIUM. The body of Roman law,
which was made up of edicts of the supreme mag-
istrates, particularly the pra2tors.
JUS HONORUM. In Roman law. The right of
holding offices. See Jus Suffragii.
JUS IMAGINIS. In Roman law. The right to
use or display pictures or statues of ancestors;
somewhat analogous to the right, in English law,
to bear a coat of arms.
JUS IMMUNITATIS. In the civil law. The law
of immunity or exemption from the burden of
public office. Dig. 50, 6.
JUS IN PERSONAM. A right against a person;
a right which gives its possessor a power to oblige
another person to give or procure, to do or not
to do, something.
JUS IN RE. A right in a thing. Denver Joint
Stock Land' Bank of Denver v. Dixon, 57 Wyo. 523,
122 P.2d 842, 847, 140 A.L.R. 1270. A right exist-
ing in a person with respect to an article or sub-
ject of property, Inherent in his relation to it,
implying complete ownership with possession, and
available against all the world. See Jus ad Rem.
JUS IN RE ALIENA. An easement on servitude,
or right in, or arising out of, the property of an-
other.
JUS IN RE INHERIT OSSIBUS USUFRUC-
TUARII. A right in the thing cleaves to the per-
son of the usufructuary.
JUS IN RE PROPRIA. The right of enjoyment
which is incident to full ownership or property,
and is often used to denote the full ownership
or property itself. It is distinguished from jus in
re aliend, which is a mere easement or right in or
over the property of another.
JUS INCOGNITUM. An unknown law. This
term is applied by the civilians to obsolete laws.
Bowyer, Mod.Civil Law, 33.
JUS INDIVIDUUM. An individual or indivisible
right; a right incapable of division. 36 Eng.Law
& Eq. 25.
JUS ITAILICUM. A term of the Roman law de-
scriptive of the aggregate of rights, privileges,
and franchises possessed by the cities and inhabi-
tants of Italy, outside of the city of Rome, and
afterwards extended to some of the colonies and
provinces of the empire, consisting principally in
the right to have a free constitution, to be exempt
from the land tax, and to have the title to the
land regarded as Quiritarian property. See Gib-
bon, Rom.Emp. c. xvii; Mackeld.Rom.Law, § 43.
JUS ITINERIS. Iri Roman law. A rural servi-
tude giving to a 'person the right to pass over an
adjoining field, on foot or horseback.
JUS JURANDI FORMA VERBIS DIFFERT, RE
CONVENIT; HUNC ENIM SENSUM HABERE
DEBET: UT DEUS -INVOCETUR. Grot. de Jur.
B., 1. 2, c. 13, § 10. The form of taking an oath
differs in language, agrees in meaning; for it
ought to have this sense: that the Deity is invok-
ed.
JUS LATH. In Roman law. The right of Latium
or of the Latins.
The principal privilege of the Latins seems to have been
the use of their own laws, and their not being subject to
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JUS LATIUM
the edicts of the praetor, and that they had occasional
access to the freedom of Rome, and a participation in her
sacred rites. Butl.Hor.Jur. 41.
.TUS LATIUM. In Roman law. A rule of law ap-
plicable to magistrates in Latium.
It was either majus Latium or minus Latium,—the majus
Latium raising to the dignity of Roman citizen not only
the magistrate himself, but also his wife and children; the
minus Latium raising to that dignity only the magistrate
himself. Brown.
JUS LEGITIMUM. A legal right. In the civil law.
A right which was enforceable in the ordinary
course of law. 2 B1.Comm. 328.
JUS LIBERORUM. In Roman law. The privi-
lege conferred upon a woman who had three or
four children.
Another author defines this privilege as one by
which exemption was given from all troublesome
offices. Brown, L.Dict.
In order that she should be able to take all the property
given her by will, she must have had this privilege con-
ferred upon her. Sohm, Inst.Rom.L. § 86. In the time of
Hadrian, a decree was made conferring upon ft mother, as
such, who, being an ingenua, had the jus trium liberorum,
or being a libertina, the jus quettuor liberorum, a civil law
right to succeed her intestate children; id. § 98.
JUS MARITI. The right of a husband; especial-
ly the right which a husband acquires to his wife's
movable estate by virtue of the marriage. 1 Forb.
Inst. pt. 1, p. 63.
JUS MERUM. In old English law. Mere or bare
right; the mere right of property in lands, with-
out either possession or even the right of posses-
sion. 2 Bl.Comm. 197; Bract. fol. 23.
JUS MORIBUS CONSTITUTUM, See Jus Ex
Non Scripto.
JUS NATURE. The law of nature. See Jus
Naturale.
JUS NATURALE. The natural law, or law of na-
ture; law, or legal principles, supposed to be dis-
coverable by the light of nature or abstract rea-
soning, or to be taught by nature to all nations
and men alike; or law supposed to govern men
and peoples in a state of nature, i. e., in advance
of organized governments or enacted laws.
This concept originated with the philosophical jurists of
Rome, and was gradually extended until the phrase came
to denote a supposed basis or substratum common to all
systems of positive law, and hence to be found, in greater
or less purity, in the laws of all nations. And, conversely,
they held that if any rule or principle of law was observed
in common by all peoples with whose systems they were
acquainted, it must be a part of the jus naturale, or
derived from it. Thus the phrases "jus naturale" and "jus
gentium" came to be used interchangeably.
JUS NATURALE EST QUOD APUD HOMINES
EANDEM HABET POTENTIAM. Natural right
is that which has the same force among all man-
kind. 7 Coke, 12.
JUS NAVIGANDI. The right of navigating or
navigation; the right of commerce by ships or by
sea. Locc. de Jure Mar. lib. 1, c. 3.
JUS NECIS. In Roman law. The right of death,
or of putting to death. A right which a father an-
ciently had over his children.
See Jus Vitae Necisque.
JUS NON HABENTI TUTE NON PARETUR.
One who has no right cannot be safely obeyed.
Hob. 146.
JUS NON PATITUR UT IDEM BIS SOLVATUR.
Law does not suffer that the same thing be twice
paid.
JUS NON SACRUM. In Roman law. That por-
tion of the jus publicum which regulated the du-
ties of magistrates.
Non-sacred law; that which dealt with the du-
ties of civil magistrates, the preservation of pub-
lic order, and the rights and duties of persons in
their relation to the state. Morey, Rom.L. 223.
It was analogous to that which would now be call-
ed the police power.
JUS NON SCRIPTUM. The unwritten law. 1 Bl.
Comm. 64.
JUS OFFERENDI. In Roman law, the right of
subrogation, that is, the right of succeeding to the
lien and , priority of an elder creditor on tender-
ing or paying into court the amount due to him.
See Mackeld. Rom.Law, § 355.
JUS ONERIS FERENDI. An urban servitude in
the Roman Law, the owner of which had the right
of supporting and building upon the house wall
of another.
JUS PAPIRIANUM. The civil law of Papirius.
The title of the earliest collection of Roman leges curia-
tce, said to have been made in the time of Tarquin, the last
of the kings, by a pontifex maximus of the name of Sextus
or Publius Papirius. Very few fragments of this collection
now remain, and the authenticity of these has been
doubted. Mackeld.Rom.Law, § 21.
JUS PASCENDI. In the civil and old English
law. The right of pasturing cattle. Inst. 2, 3, 2;
Bract. fols. 53b, 222.
JUS PATRONATUS. In English ecclesiastical
law. The right of patronage; the right of pre-
senting a clerk to a benefice. Blount.
A commission from the bishop, where two pres-
entations are offered upon the same avoidance, di-
rected usually to his chancellor and others of
competent learning, who are to summon a jury of
six clergymen and six laymen to inquire into and
examine who is the rightful patron. 3 Bl.Comm.
246; 3 Steph.Comm. 517.
JUS PERSONARUM. Rights of persons. Those
rights which, in the civil law, belong to persons
as such, or in their different characters and rela-
tions; as parents and children, masters and serv-
ants, etc.
JUS PCENITENDI. In Roman law, the right of
rescission or revocation of an executory contract
on failure of the other party to fulfill his part of
the agreement. See Mackeld. Rom. Law, § 444.
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JUS QUIRITIUM
JUS PORTUS. In maritime law. The right of
port or harbor.
JUS POSSESSIONIS. The right of possession.
JUS POSSIDENDI. The right of possessing,
which is the legal consequence of ownership. It
is to be distinguished from the jus possessionis
(q. v.), which is a right to possess which may ex-
ist without ownership.
JUS POSTLIMINII. In the Civil law. The right
of postliminy; the right or claim of a person who
had been restored to the possession of a thing, or
to a former condition, to be considered as though
he had never been deprived of it. Dig. 49, 15, 5;
3 Bl.Comm. 107, 210.
In International law. The right by which property
taken by an enemy, and recaptured or rescued
from him by the fellow-subjects or allies of the
original owner, is restored to the latter upon cer-
tain terms. 1 Kent, Comm. 108.
JUS PRIESENS. In the civil law. A present or
vested right; a right already completely acquired.
Mackeld. Rom. Law, § 191.
JUS PRJETORIUM. In the civil law. The discre-
tion of the prtor, as distinct from the leges, or
standing laws. 3 Bl.Comm. 49. That kind of
law which the prators introduced for the purpose
of aiding, supplying, or correcting the civil law,
for the public benefit. Dig. 1, 1, 7. Called, also,
"jus honorarium," (q. v.).
JUS PRECARIUM. In the civil law. A right to
a thing held for another, for which there was no
remedy by legal action, but only by entreaty or
request. 2 Bl.Comm. 328.
JUS PRESENTATIONIS. The right of presenta-
tion.
JUS PRIVATUM. Private law; the law regulat-
ing the rights, conduct, and affairs of individuals,
as distinguished from "public" law, which relates
to the constitution and functions of government
and the administration of criminal justice. See
Mackeld. Rom. Law, § 124.
Also private ownership, or the right, title, or dominion
of a private owner, as distinguished from "jus publicum,"
which denotes public ownership, or the ownership of prop-
erty by the government, either as a matter of territorial
sovereignty or in trust for the benefit and advantage of
the general public. In this sense, a state may have a
double right in given property, e. g., lands covered by
navigable waters within its boundaries, including both
"jus publicum," a sovereign or political title, and "jus
privatum," a proprietary ownership. See Oakland v. Oak-
land Water Front Co., 118 Cal. 160, 50 P. 277; G. L. Web-
ster Co. v. Steelman, 172 Va. 342, 1 S.E.2d 305, 311.
JUS PROJICIENDI. In the civil law. The name
of a servitude which consists in the right to build
a projection, such as a balcony or gallery, from
one's house in the open space belonging to one's
neighbor, but without resting on his house. Dig.
50, 16, 242; Id. 8, 2, 2; Mackeld. Rom. Law, § 317.
JUS PROPRIETATIS. The right of property, as
distinguished from the jus possessionis or right of
possession. Bract. fol. 3. Called by Bracton "jus
merum," the mere right. Id.; 2 Bl.Comm. 197; 3
Bl.Comm. 19, 176.
JUS PROTEGENDI. In the civil law. The name
of a servitude. It is a right by which a part of
the roof or tiling of one house is made to extend
over the adjoining house. Dig. 50, 16, 242, 1;
Id. 8, 2, 25; Id. 8, 5, 8, 5.
JUS PROTIMESEOS. The right of pre-emption
of a landlord in case the tenant wishes to dispose
of his rights as a perpetual lessee. Sohm. Inst.
Rom.L. § V. Pactum protimeseos was the right
of pre-emption to the seller; i. e. in case the buyer
should sell, he must sell to the former seller.
Hunter. Rom. L., 503.
JUS PROVINCIARUM. A franchise conferred
upon provincials much more limited than that
conferred upon the people of Italy.
It has been described as "equivalent to the jus italicum
minus the freedom from land taxation which the latter
right involved.  In short, the provincials possessed no
status as Roman citizens; and even their capacity of
ownership in their own land was qualified by their tribu-
tary obligations to Rome. The civil incapacity of the
provincials had reference, however, merely to their exclu-
sion from the strictly legal rights sanctioned by the jus
civile." Morey, Rom.L. 55.
JUS PUBLICUM. Public law, or the law relating
to the constitution and functions of government
and its officers and the administration of criminal
justice. Also public ownership, or the paramount
or sovereign territorial right or title of the state
or government. See Jus Privatum.
It implies a right in a sovereign or public capacity to be
exercised for the interest or benefit of the state or the
public, as distinguished from the exercise in a proprietary
capacity of a right of the sovereign or a right possessed
by an individual in common with the public. G. L. Web-
ster Co. v. Steelman, 172 Va. 342, 1 S.E.2d 305, 311.
Sovereign's right of jurisdiction and dominion for gov-
ernmental purposes over all lands and waters within its
territorial limits, including tidal waters and their bottoms,
is sometimes termed "jus publicum." Commonwealth v.
City of Newport News, 158 Va. 521, 164 S.E. 689, 696.
JUS PUBLICUM ET PRIVATUM QUOD EX NA-
TURALIBUS PR2ECEPTIS AUT GENTIUM AUT
CIVILIBUS EST COLLECTUM; ET QUOD IN
JURE SCRIPTO JUS APPELLATUR, ID IN
LEGE ANGLIZE RECTUM ESSE DICITUR. Co.
Litt. 185. Public and private law is that which is
collected from natural principles, either of nations
or in states; and that which in the civil law is
called "jus," in the law of England is said to be
"right."
JUS PUBLICUM PRIVATORUM PACTIS MUTA-
RI NON POTEST. A public law or right cannot
be altered by the agreements of private persons.
JUS QUIESITUM. A right to ask or recover; for
example, in .an obligation there is a binding of the
obligor, and a jus qucesitum in the obligee. 1 Bell,
Comm. 323.
JUS QUIRITIUM. The old law of Rome, that
was applicable originally to patricians only, and,
under the Twelve Tables, to the entire Roman peo-
ple, was so called, in contradistinction to the jus
prcetorium, (q. v.,) or equity. Brown.
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JUS QUO
JUS QUO UNIVERSITATES UTUNTUR EST ID-
EM QUOD HABENT PRIVATI. The law which
governs corporations is the same which governs
individuals. Foster v. Essex Bank, 16 Mass. 265,
8 Am.Dec. 135.
JUS RECUPERANDI. The right of recovering
[lands.]
JUS RELICTIE, In Scotch law. The right of a
relict; the right or claim of a relict or widow to
her share of her husband's estate, particularly
the movables. 2 Kames, Eq. 340; 1 Forb. Inst.
pt. 1, p. 67.
JUS REPRESENTATION'S. The right of repre-
senting or standing in the place of another, or of
being represented by another.
JUS RERUM. The law of things. The law regu-
lating the rights and powers of persons over
things; how property is acquired, enjoyed, and
transferred.
JUS RESPICIT ?EQUITATEM. Law regards
equity. Co. Litt. 24b; Broom, Max. 151.
JUS SACRUM. In Roman law. That portion of
the public law which was concerned with matters
relating to public worship and including the regu-
lation of sacrifices and the appointment of priests.
There was a general division of the jus publicum
into jus sacrum and jus non sacrum (q. v.).
JUS SANGUINIS. The right of blood. See Jus
Soli.
JUS SCRIPTUM, In English law. Written law,
or statute law, otherwise called "lex scripta," as
distinguished from the common law, "lex non
scripta." 1 Bl.Comm. 62.
In Roman law. Written law. Inst. 1, 2, 3. All
law that was actually committed to writing,
whether it had originated by enactment or by cus-
tom, in contradistinction to such parts of the law
of custom as were not committed to writing.
Mackeld. Rom. Law, § 126.
After stating that the Roman law was written and
unwritten just as it was among the Greeks, Justinian adds
"The written part consists of laws, plebiscite, senatus-
consulte, enactments of emperors, edicts of magistrates,
and answers of jurisprudents." Sand.Inst.Just. 1, 2, 3.
See Jus Ex Non Scripto.
JUS SINGULARE. In the civil law. A peculiar
or individual rule, differing from the jus commune,
or common rule of right, and established for some
special reason. Mackeld. Rom. Law, § 196.
JUS SOLI. The law of the place of one's birth
as contrasted with jus sanguinis, the law of the
place of one's descent or parentage. It is of feud-
al origin. Hershey, Int. L. 237.
JUS SPATIANDI. A right of way over land by
the public by uses merely for the purposes of rec-
reation and instruction.
It is usually limited to the cases of highways, parks, and
squares. The public were denied any right in the grounds
containing the ancient druidical monuments at Stonehenge;
Attorney-General V. Antrobus, [1905] 2 Ch. 188. See 19
Harv.L.Rev. 55. See Du Cange, Glossarium, for a defini-
tion under the word spatiare.
JUS STAPULAE. In old European law. The law
of staple; the right of staple. A right or privi-
lege of certain towns of stopping imported mer-
chandise, and compelling it to be offered for sale
in their own markets. Locc. de Jure Mar. lib. 1,
c. 10.
JUS STILLICIDII VEL FLUMINIS RECIPIEN-
DI, In Roman law. An urban servitude giving
the owner a right to project his roof over the
land of another or to open a house drain upon it.
JUS STRICTUM. Strict law; law interpreted
without any modification, and in its utmost rigor.
JUS SUFFRAGII. In Roman law. The right of
voting. This and the jus honorum (q. v.) were
the public rights of the Roman citizen.
JUS SUPERVENIENS AUCTORI ACCRESCIT
SUCCESSOR!. A right growing to a possessor
accrues to the successor. Halk. Lat. Max. 76.
JUS TERTII. The right of a third party.
A tenant, bailee, etc., who pleads that the title is in
some person other than his landlord, bailor, etc., is said
to set up a jus tertii. Dempsey Oil & Gas Co. v. Citizens'
Nat. Bank, 110 Oki. 39, 235 P. 1104, 1107.
JUS TESTAMENTORUM PERTINET ORDINAR-
IO. Y. B. 4 Hen. VII., 13b. The right of testa-
ments belongs to the ordinary.
JUS TIGNI IMMITTENDI. In Roman law. An
urban servitude which gave the right of inserting
a beam into the wall of another.
JUS TRIPERTITUM. In Roman law. A name
applied to the Roman law of wills, in the time of
Justinian, on account of its three-fold derivation,
viz., from the praetorian edict, from the civil law,
and from the imperial constitutions. Maine, Anc.
Law, 207.
JUS TRIPLEX EST,—PROPIETATIS, POSSES-
SION'S, ET POSSIBILITATIS. Right is three-
fold,—of property, of possession, and of possibil-
ity.
JUS TRIUM LIBERORUM. In Roman law. A
right or privilege allowed to the parent of three
or more children. 2 Kent, Comm. 85; 2 Bl.Comm.
247. These privileges were an exemption from the
trouble of guardianship, priority in bearing offices,
and a treble proportion of corn. Adams, Rom.
Ant. (Am. Ed.) 227.
JUS UTENDI. The right to use property without
destroying its substance. It is employed in con-
tradistinction to the jus abutendi. 3 Toullier, no.
86.
JUS VENANDI ET PISCANDI. The right of
hunting and fishing.
JUS VENDIT QUOD USUS APPROBAVIT. El-
lesm. Postn. 35. The law dispenses what use has
approved.
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JUST COMPENSATION
JUS VIT1E NECISQUE. In Roman law. The
right of life and death.
Originally a father, or his pater-familias if he was him-
self in domestic subjection, could decide-not arbitrarily,
but judicially-whether or not to rear his child; and while
this right became subject to certain restrictions, yet when
the child had grown up, the father, in the exercise of his
domestic jurisdiction, might visit his son's misconduct,
both in private and public life, with such punishment as he
though fit, even banishment, slavery, or death. In the
early Empire these rights became relaxed, and they dis-
appeared in the Justinian law. Murihead, Roman Law, 28,
346, 417. See Patria Potestas.
JUSJURANDI FORMA VERBIS DIFFERT, RE
CONVENIT; HUNC ENIM SENSUM HABERE
DEBET, UT DEUS INVOCETUR. The form of
taking an oath differs in language, agrees in mean-
ing; for it ought to have this sense, that the Deity
is invoked. Grotius, b. 2, c. 13, s. 10.
JUSJURANDUM. Lat. An oath.
JUSJURANDUM INTER ALIOS FACTUM NEC
NOCERE NEO PRODESSE DEBET. An oath
made between others ought neither to hurt nor
profit. 4 Inst. 279.
JUST. In the sense of "joust," see Justs, infra.
JUST. Conforming to or consonant with, what is
legal or lawful, legally right, lawful. National
Surety Corporation v. Mullins, 262 Ky. 465, 90 S.
W.2d 707, 708. Correct, true, due. Wisdom v.
Board of Sup'rs of Polk County, 236 Iowa 669, 19
N.W.2d 602, 606. Equitable. Carter v. Carter, 181
Okl. 204, 73 P.2d 404, 405. Reasonable. National
Surety Corporation v. Mullins, 262 Ky. 465, 90
S.W.2d 707, 708; Wisdom v. Board of Sup'rs of
Polk County, 236 Iowa 669, 19 N.W.2d 602, 606.
Right; in accordance with law and justice. Mc-
Keon v. National Casualty Co., 216 Mo.App. 507,
270 S.W. 707, 712; New Haven Water Co. v. City
of New Haven, 106 Conn. 562, 139 A. 99, 105; Lake
Hancock & C. R. Co. v. Stinson, 77 Fla. 333, 81
So. 512.
"The words 'just' and 'justly' do not always mean 'just'
and 'justly' in a moral sense, but they not unfrequently,
in their connection with other words in a sentence, bear a
very different signification. It is evident, however, that
the word 'just' in the statute [requiring an affidavit for an
attachment to state that plaintiff's claim is just] means
'just' in a moral sense; and from its isolation, being made
a separate subdivision of the section, it is intended to
mean 'morally just' in the most emphatic terms. The
claim must be morally just, as well as legally just, in
order to entitle a party to an attachment." Robinson v.
Burton, 5 Kan. 300.
JUST BEYOND. Will directing erection of chap-
el "just beyond" the basin means barely beyond,
scarcely beyond, or closely beyond, with the least
practical space between it and the basin. Carroll
v. Cave Hill Cemetery Co., 172 Ky. 204, 189 S.W.
186, 189.
JUST CAUSE. A cause outside legal cause, which
must be based on reasonable grounds, and there
must be a fair and honest cause or reason, regu-
lated by good faith. Dubois v. Gentry, 182 Tenn.
103, 184 S.W.2d 369, 371; Quick v. Southern
Churchman Co., 171 Va. 403, 199 S.E. 489, 494, 495.
Fair, adequate, reasonable cause. In re Municipal
Garage in and for City of Utica, 141 Misc. 15, 252
N.Y.S. 18, 32. Legitimate cause; legal or lawful
ground for action; such reasons as will suffice in
law to justify the action taken. State v. Langford,
90 Or. 251, 176 P. 197, 202; State v. Donzi, 133 La.
925, 63 So. 405, 406; State v. Wohlfort, 123 Kan.
62, 254 P. 317, 320; Boston Elevated Ry. Co. v.
Commonwealth, 310 Mass. 528, 39 N.E.2d 87, 112,
124.
Under provision that no license shall be revoked without
"just cause," the words imply that charges should be made
and notice of hearing given and an opportunity to be heard
afforded, Carroll v. California Horse Racing Board, 16
Ca1.2d 164, 105 P.2d 110, 111.
JUST CAUSE OF PROVOCATION. That which
will constitute the homicide murder in the second
degree, as distinguished from a lawful provoca-
tion, which will reduce it to manslaughter. State
v. McCracken, 341 Mo. 697, 108 S.W.2d 372, 376.
JUST COMPENSATION. As regards property
taken for public use, the term is comprehensive
and includes all elements. Jacobs v. U. S., Ala.,
290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142, 96 A.L.R.
1; Metropolitan Water Dist. of Southern Cali-
fornia v. Adams, 16 Ca1.2d 676, 107 P.2d 618, 621.
But does not exceed market value. Sigurd
City v. State, 105 Utah 278, 142 P.2d 154, 158;
U. S. v. Waterhouse, C.C.A.Hawaii, 132 F.2d
699, 703. It means a settlement which leaves one
no poorer or richer than he was before the proper-
ty was taken. U. S. ex rel. Tennessee Valley Au-
thority v. Indian Creek Marble Co., D.C.Tenn., 40
F.Supp. 811, 818, 819; adequate compensation,
State v. Hale, Tex.Civ.App., 96 S.W.2d 135, 141;
In re Board of Sup'rs of Chenango County, Co.
Ct., 6 N.Y.S.2d 732, 739; fair market value, Cam-
eron Development Co. v. United States, C.C.A.Fla.,
145 F.2d 209, 210; U. S. ex rel. and for Use of
Tennessee Valley Authority v. Davis, D.C.Tenn.,
41 F.Supp. 595, 597, 598; United States v. Certain
Parcels of Land in City of Baltimore, Parcel No.
12, D.C.Md., 43 F.Supp. 687, 689. Full and perfect
equivalent of the property taken. Housing Au-
thority of Shreveport v. Green, 200 La. 463, 8
So.2d 295, 298; U. S. v. 2.4 Acres of Land, More
or Less, in Lake County, Ill., C.C.A.I11., 138 F.2d
295, 297. It is the value of property taken at
time of taking. United States v. 813.96 Acres of
Land in Ouachita County, Ark., D.C.Ark., 45 F.
Supp. 535, 538; Danforth v. U. S., Mo., 308 U.S.
271, 60 S.Ct. 231, 236, 84 L.Ed. 240; plus compensa-
tion for delay in payment. Kieselbach v. Com-
missioner of Internal Revenue, 317 U.S. 399, 63 S.
Ct. 303, 305, 87 L.Ed. 358; or consequential dam-
ages to the owner. In re Board of Water Supply
of City of New York, 277 N.Y. 452, 14 N.E.2d 789;
or value of use of property from date of taking
possession to date of judgment if possession is
taken by condemnor prior to judgment. Los An-
geles County Flood Control Dist. v. Hansen, 48
Cal.App.2d 314, 119 P.2d 734, 735. It requires that
the owner be put in as good position pecuniarily
as he would otherwise have been. Kansas City
Southern Ry. Co. v. Commissioner of Internal
Revenue, C.C.A.8, 52 F.2d 372, 379; In re Gratiot
Ave., City of Detroit, 294 Mich. 569, 293 N.W. 755,
757; U. S. ex rel. and for Use of Tennessee Valley
Authority v. Powelson, C.C.A.4, 118 F.2d 79, 87.
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JUST COMPENSATION
To arrive at fair indemnity, the interests of the public
and of the owner, and all the circumstances of the particu-
lar appropriation, should be taken into consideration.
Lewis, Em.Dorn. § 462. And see Butler Hard Rubber Co.
v. Newark, 61 N.J.L. 32, 40 A. 224; Bauman v. Ross, 167
U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270; Newman v. Metropoli-
tan El. R. Co., 118 N.Y. 623, 23 N.E. 901, 7 L.R.A. 289.
Evidence of reproduction cost of structures affected by con-
demnation, less depreciation, improvements made on the
property, consequential damage to portions not appropri-
ated, and the fair market value of the property taken as of
the date of the appropriation, may be relevant in deter-
mining "just compensation," according to the situation in
a particular case. In re Board of Water Supply of City of
New York, 277 N.Y. 452, 14 N.E.2d 789.
"Just compensation" is synonymous with "due process
of law." Simms v. Dillon, 119 W.Va. 284, 193 S.E. 331, 337,
113 A.L.R. 787.
As regards public utility, just compensation is
fair return on value of property. Fort Worth
Gas Co. v. City of Fort Worth, D.C.Tex., 35 F.2d
743, 747; New York Edison Co. v. Maltbie, 150
Misc. 200, 270 N.Y.S. 409; State v. Tri-State Tele-
phone & Telegraph Co., 204 Minn. 516, 284 N.W.
294, 306.
On government's cancellation of contract, "just
compensation" recoverable consists of such sum
as in court's judgment will fairly compensate con-
tractor, Enright v. U. S., Ct.C1., 54 F.2d 182, 190;
it is the value of contract at time of cancellation,
not profits which it would have produced. De
Laval Steam Turbine Co. v. U. S., Ct.C1., 284 U.S.
61, 52 S.Ct. 78, 79, 76 L.Ed. 168.
JUST DEBTS. As used in a will or a statute,
this term means legal, valid, and incontestable
obligations, not including such as are barred by
the statute of limitations or voidable at the elec-
tion of the party. See Burke v. Jones, 2 Ves. & B.
275; Peck v. Botsford, 7 Conn. 176, 18 Am.Dec.
92; Collamore v. Wilder, 19 Kan. 82; Smith v.
Mayo, 9 Mass. 63, 6 Am.Dec. 28; Jones' Ex'r v.
Jones, 275 Ky. 753, 122 S.W.2d 779, 780.
JUST PRIOR. "Immediately preceding", "just
before", without appreciable lapse of time before.
Jackson v. McCrary, Tex.Civ.App., 148 S.W.2d 942,
944. It means before the time and connotes near-
ness in point of time. Salmons v. Dun & Brad-
street, Mo.App., 153 S.W.2d 556, 562, modified on
other grounds 349 Mo. 498, 162 S.W.2d 245, 141
A.L.R. 674. It means some period of time before.
Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61,
85 S.W.2d 126, 129.
JUST TITLE. By the term "just title," in cases
of prescription, is meant a title which the posses-
sor may have received from any person whom he
honestly believed to be the real owner, provided
the title were such as to transfer the ownership
of the property. Civ.Code La. art. 3484; Davis
v. Gaines, 104 U.S. 400, 26 L.Ed. 757; Johnson v.
Sugar, 163 La. 785, 112 So. 721, 722; B. Fernandez
& Bros. v. Ayllon, 266 U.S. 144, 45 S.Ct. 52, 69 L.
Ed. 209. One good against all the world. Vir-
ginia & West Virginia Coal Co. v. Charles, C.C.A.
Va., 254 , F. 379, 387.
JUST VALUE. In taxation, the fair, honest, and
reasonable value of property, without exaggera-
tion or depreciation; its actual market value.
State v. Smith, 158 Ind. 543, 63 N.E. 214, 63 L.R.A.
116; Winnipiseogee Lake, etc., Co. v. Gilford, 67
N.H. 514, 35 A. 945. Correct, honest and true val-
ue. Fruit Growers Express Co. v. Brett, 94 Mont.
281, 22 P.2d 171.
JUSTA. In old English law. A certain measure
of liquor, being as much as was sufficient to drink
at once. Mon. Angl. t. 1, c. 149.
JUSTA CAUSA. In the civil law. A just cause;
a lawful ground; a legal transaction of some kind.
Mackeld. Rom. Law, § 283.
JUSTICE, v. In old English practice. To do jus-
tice, to see justice done; to summon one to do
justice.
JUSTICE, n. In common law. The title given in
England to the judges of the king's bench and the
common pleas, and in America to the judges of
the supreme court of the United States and of the
appellate courts of many of the states.
It is said that this word in its Latin form (justitia) was
properly applicable only to the judges of common-law
courts, while the term "judex" designated the judges of
ecclesiastical and other courts. See Leg.Hen. I, §§ 24, 63;
Co. Litt. 71b.
The same title is also applied to some of the judicial
officers of the lowest rank and jurisdiction, such as police
justices and justices of the peace.
A term used in the United States and England to desig-
nate judicial officers and magistrates of every grade.
School Dist. No. 18 v. Grubbs Special School Dist., 184
Ark. 863, 43 S.W.2d 765, 766.
In Feudal law. Jurisdiction; judicial cognizance
of causes or offenses.
High justice was the jurisdiction or right of trying
crimes of every kind, even the highest. This was a privi-
lege claimed and exercised by the great lords or barons of
the middle ages. 1 Robertson's Car. V., appendix, note 23.
Low justice was jurisdiction of petty offenses.
In Jurisprudence. The constant and perpetual
disposition to render every man his due. Inst. 1,
1, pr.; 2 Inst. 56. See Borden v. State, 11 Ark.
528, 44 Am.Dec. 217; Collier v. Lindley, 203 Cal.
641, 266 P. 526, 530; The John E. Mulford, D.C.
N.Y., 18 F. 455. The conformity of our actions
and our will to the law. Toull. Droit Civil Fr. tit.
prel. no. 5; Livingston Oil Corporation v. Henson,
90 Okl. 76, 215 P. 1057, 1059.
Commutative justice is that which should govern con-
tracts. It consists in rendering to every man the exact
measure of his dues, without regard to his personal worth
or merits, i. e., placing all men on an equality. Distribu-tive justice is that which should govern the distribution
of rewards and punishments. It assigns to each the
rewards which his personal merit or services deserve, or
the proper punishment for his crimes. It does not con-
sider all men as equally deserving or equally blameworthy,
but discriminates between them, observing a just propor-
tion and comparison. This distinction originated with
Aristotle. (Eth.Nic. V.) See Fonbl.Eq. 3; Toull.Droit
Civil Fr. tit. pre. no. 7.
In the most extensive sense of the word "justice" differs
little from "virtue;" for it includes within itself the
whole circle of virtues. Yet the common distinction
between them is that that which, considered positively and
in itself, is called "virtue," when considered relatively and
with respect to others has the name of "justice." But
"justice," being in itself a part of "virtue," is confined to
things simply good or evil, and consists in a man's taking
such a proportion of them as he ought. Bouvier.
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JUSTICES
"Equity" and "Justice" are substantially equivalent
terms, if not synonymous. In re Lessig's Estate, 6 N.Y.
S.2d 720, 721, 168 Misc. 889.
Under constitutional provision guaranteeing right to
obtain justice, the "justice" to be administered by courts
is not an abstract justice as conceived of by the judge but
justice according to law or, as it is phrased in the con-
stitution, "conformably to the laws". State ex rel. Depart-
ment of Agriculture v. McCarthy, 238 Wis. 258, 299 N.W.
58, 64.
In Norman French. Amenable to justice. Kel-
ham.
JUSTICE AYRES (or AIRES). In Scotch law.
Circuits made by the judges of the justiciary
courts, through the country, for the distribution
of justice. Bell.
JUSTICE IN EYRE. From the old French word
"eire,"  e., a journey. Those justices who in an-
cient times were sent by commission into various
counties, to hear more especially such causes as
were termed "pleas of the crown," were called
"justices in eyre."
They differed from justices in oyer and terminer, inas-
much as the latter were sent to one place, and for the
purpose of trying only a limited number of special causes;
whereas the justices in eyre were sent through the various
counties, with a more indefinite and general commission.
In some respects they resembled our present justices of
assize, although their authority and manner of proceeding
differed much from them. Brown.
JUSTICE OF THE PEACE. In American law.
A judicial officer of inferior rank having (usually)
civil jurisdiction limited to that prescribed by stat-
ute in civil cases and in criminal proceedings,
prosecutions and commitments of offenders. See
Com. v. Frank, 21 Pa.Co.Ct.R. 120; Weikel v. Cate,
58 Md. 110; Smith v. Abbott, 17 N.J.L. 366; Peo-
ple v. Mann, 97 N.Y. 530, 49 Am.Rep. 556; Com-
monwealth, for Use and Benefit of Warren Coun-
ty, v. Cox's Adm'r, 264 Ky. 327, 94 S.W.2d 632.
In English law. Judges of record appointed by the
crown to be justices within a certain district, (e.
g., a county or borough,) for the conservation of
the peace, and for the execution of divers things,
comprehended within their commission and with-
in divers statutes, committed to their charge.
Stone, J. Pr. 2.
JUSTICE SEAT. In English law. The principal
court of the forest, held before the chief justice
in eyre, or chief itinerant judge or his deputy;
to hear and determine all trespasses within the
forest, and all claims of franchises, liberties, and
privileges, and all pleas and causes whatsoever
therein arising. 3 Bl. Comm. 72; 4 Inst. 291; 3
Steph. Comm. 440.
JUSTICEMENTS. An old general term for all
things appertaining to justice.
JUSTICER. The old form of justice. Blount.
JUSTICE'S CLERK. An amanuensis of the jus-
tice. A justice of the peace is regarded as his
own clerk, and, in making entries on his docket,
he acts in a ministerial capacity. State ex rel.
Morris Bldg. & Inv. Co. v. Brown, 228 Mo.App.
760, 72 S.W.2d 859, 862,
JUSTICE'S COURTS. Inferior tribunals, not of
record, with limited jurisdiction, both civil and
criminal, held by justices of the peace. There
are courts so called in many of the states. See
Searl v. Shanks, 9 N.D. 204, 82 N.W. 734; Brown-
field v. Thompson, 96 Mo.App. 340, 70 S.W. 378.
JUSTICES OF APPEAL. The title given to the
ordinary judges of the English court of appeal.
The first of such ordinary judges are the two
former lords justices of appeal in chancery, and
one other judge appointed by the crown by let-
ters patent.
JUSTICES OF ASSIZE. These justices, or, as
they are sometimes called, "justices of nisi prius,"
are judges of the superior English courts, who
go on circuit into the various counties of England
and Wales for the purpose of disposing of such
causes as are ready for trial at the assizes. See
Assize.
JUSTICES OF GAOL DELIVERY. Those justices
who are sent with a commission to hear and de-
termine all causes appertaining to persons, who,
for any offense, have been cast into gaol.
Part of their authority was to punish those who let to
mainprise those prisoners who were not bailable by law,
and they seem formerly to have been sent into the country
upon this exclusive occasion, but afterwards had the same
authority given them as the justices of assize. Brown.
JUSTICES OF LABORERS. In old English law.
Justices appointed to redress the frowardness of
laboring men, who would either be idle or have
unreasonable wages. Blount.
JUSTICES OF NISI PRIUS. In English law. This
title is now usually coupled with that of justices
of assize; the judges of the superior courts act-
ing on their circuits in both these capacities. 3
Bl. Comm. 58, 59.
JUSTICES OF OYER AND TERMINER. Certain
persons appointed by the king's commission,
among whom were usually two judges of the
courts at Westminster, and who went twice in
every year to every county of the kingdom, (ex-
cept London and Middlesex,) and, at what was
usually called the "assizes," heard and determined
all treasons, felonies, and misdemeanors. Brown.
JUSTICES OF THE BENCH. The justices of the
court of common bench or common pleas.
JUSTICES OF THE FOREST. In old English.
law. Officers who had jurisdiction over all of-
fenses committed within the forest against vert
or venison. The court wherein these justices sat
and determined such causes was called the "jus-
tice seat of the forest." They were also some-
times called the "justices in eyre of the forest."
Brown.
JUSTICES OF THE HUNDRED. Hundredors;
lords of the hundreds; they who had the jurisdic-
tion of hundreds and held the hundred courts.
JUSTICES OF THE JEWS. Justices appointed by
Richard I. to carry into effect the laws and or-
ders which he had made for regulating the money
contracts of the Jews. Brown.
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JUSTICES
JUSTICES OF THE PAVILION. In old English
law. Judges of a pyepowder court, of a most
transcendant jurisdiction, anciently authorized by
the bishop of Winchester, at a fair held on St.
Giles' Hills near that city. Cowell; Blount.
JUSTICES OF THE QUORUM. See Quorum.
JUSTICES OF TRAIL-BASTON. See Trail-Bas-
ton.
JUSTICESHIP. Rank or office of a justice.
JUSTICIABLE. Proper to be examined in courts
of justice. subject to action of court of justice.
International Harvest Hat Co. v. Caradine Hat
Co., D.C.Mo., 17 F.Supp. 79, 80.
JUSTICIABLE CONTROVERSY. A controversy
in which a claim of right is asserted against one
who has an interest in contesting it. State ex rel.
La Follette v. Dammann, 230 Wis. 17, 264 N.W.
627, 629, 103 A.L.R. 1089. A question as may
properly come before a tribunal for decision. Du-
art Mfg. Co. v. Philad Co., D.C.Del., 30 F.Supp.
777, 779, 780.
JUSTICIAR. In old English law. A judge or
justice. One of several persons learned in the
law, who sat in the aula regis, and formed a kind
of court of appeal in cases of difficulty. Also
spelled justicier.
High Justicier
In old French and Canadian law. A feudal lord
who exercised the right called "high justice."
Guyot, Inst. Feod. c. 26.
JUSTICIARII ITINERANTES. In English law.
Justices in eyre, who formerly went from county
to county to administer justice. They were so
called to distinguish them from justices residing
at Westminster, who were called "justicii resi-
dentes." Co. Litt. 293.
JUSTICIARII RESIDENTES. In English law.
Justices or judges who usually resided in West-
minster. They were so called to distinguish them
from justices in eyre. Co. Litt. 293.
JUSTICIARY. An old name for a judge or jus-
tice. The word is formed on the analogy of the
Latin "justiciarius" and French "justicier," and
is a variant of justiciar (q. v.).
JUSTICIARY COURT. The chief criminal court
of Scotland, consisting of five lords of session,
added to the justice general and justice clerk; of
whom the justice general, and in his absence, the
justice clerk, is president. This court has a juris-
diction over all crimes, and over the whole of Scot-
land. Bell.
JUSTICIATUS. Judicature; prerogative.
The proceeding by which bail establish their
ability to perform the undertaking of the bond or
recognizance.
JUSTICIER. Fr, See Justiciar.
JUSTICIES. In English law. A writ directed to
the sheriff, empowering him, for the sake of dis-
patch, to try an action in his county court for
a larger amount than he has the ordinary power
to do. It is so called because it is a commission
to the sheriff to do the party justice, the word
itself meaning, "You may do justice to PP
3 Bl.Comm. 36; 4 Inst. 266.
JUSTIFIABLE. Rightful; defensible; warranted
or sanctioned by law; that which can be shown
to be sustained by law; as justifiable homicide.
See Homicide.
JUSTIFIABLE CAUSE. "Justifiable cause" for
prosecution is well-founded belief of person of
ordinary caution, prudence, and judgment in ex-
istence of facts essential to prosecution. Dicker-
son v. Atlantic Refining Co., 201 N.C. 90, 159 S.E.
446, 449.
JUSTIFICATION. A maintaining or showing a
sufficient reason in court why the defendant did
what he is called upon to answer, particularly in
an action of libel.
A defense of justification is a defense showing the libel
to be true, or in an action of assault showing the violence
to have been necessary. See Steph.P1. 184. A sufficient
lawful reason for acting or failing to act. Mercardo v.
State, 86 Tex.Cr.R. 559, 218 S.W. 491, 492; State v. Rish,
104 S.C. 250, 88 S.E. 531, 534; Townsend v. U. S., 68 App.
D.C. 223, 95 F.2d 352, 358.
Just cause or excuse. State v. Williams, 166
S.C. 63, 164 S.E. 415, 424. Just, lawful excuse for
act. Louis Kamm, Inc., v. Flink, 113 N.J.L. 582,
175 A. 62, 67, 99 A.L.R. 1. Reasonable excuse.
State v. Mueller, 208 Wis. 543, 243 N.W. 478, 479.
JUSTIFICATORS. A kind of compurgators, (q.
v.,) or those who by oath justified the innocence
or oaths of others; as in the case of wager of law.
JUSTIFIED. Done on adequate reasons sufficient-
ly supported by credible evidence, when weighed
by unprejudiced mind, guided by common sense
and by correct rules of law. Selectmen of Wake-
field v. Judge of First Dist. Court of Eastern Mid-
dlesex, 262 Mass. 477, 160 N.E. 427, 430.
JUSTIFYING BAIL consists in proving the suffi-
ciency of bail or sureties in point of property, etc.
The production of bail in court, who there justi-
fy themselves against the exception of the plain-
tiff.
JUSTINIANIST. A civilian; one who studies the
civil law.
JUSTINIAN'S INSTITUTES. See Institutes.
JUSTITIA. Lat. Justice. A jurisdiction, or the
office of a judge.
JUSTITIA DEBET ESSE LIBERA, QUIA NIHIL
INIQUIUS VENALI JUSTITIA; PLENA, QUIA
JUSTITIA NON DEBET CLAUDICARE; ET
CELERIS, QUIA DILATIO EST QUiEDAM NE-
GATIO. Justice ought to be free, because noth-
ing is more iniquitous than venal justice; full,
because justice ought not to halt; and speedy, be-
cause delay is a kind of denial. 2 Inst. 56.
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JUZGADO
JUSTITIA EST CONSTANS ET PERPETUA
VOLUNTAS JUS SUUM CUIQUE TRIBUENDI.
Justice is a steady and unceasing disposition to
render to every man his due. Inst. 1, 1, pr.; Dig.
1, 1, 10.
JUSTITIA EST DUPLEX, VIZ., SEVERE PUN-
IENS ET VERE PRIEVENIENS. 3 Inst. Epil.
Justice is double; punishing severely, and truly
preventing.
JUSTITIA EST VIRTUS EXCELLENS ET AL-
TISSIMO COMPLACENS. 4 Inst. 58. Justice is
excellent virtue and pleasing to the Most High.
JUSTITIA FIRMATUR SOLIUM. 3 Inst. 140. By
justice the throne is established.
JUSTITIA NEMINI NEGANDA EST. Jenk. Cent.
178. Justice is to be denied to none.
JUSTITIA NON EST NEGANDA NON DIFFER-
ENDA. Jenk. Cent. 93. Justice is neither to be
denied nor delayed.
JUSTITIA NON NOVIT PATREM NEC MAT-
REM; SOLAM. VERITATEM SPECTAT JUSTI-
TIA. Justice knows not father nor mother; jus-
tice looks at truth alone. 1 Bulst. 199.
JUSTITIA PIEPOUDROUS. Speedy justice.
Bract. 333b.
JUSTITIUM. Lat. In the civil law. A suspen-
sion or intermission of the administration of jus-
tice in courts; vacation time. Calvin.
JUSTIZA. In Spanish law. The name anciently
given to a high judicial magistrate, or supreme
judge, who was the ultimate interpreter of the
laws, and possessed other high powers.
JUSTNESS. Conformity to truth, propriety, ac-
curacy, or the like. John W. Masury & Son v.
Bisbee Lumber Co., 49 Ariz. 443, 68 P.2d 679, 693.
As used in statute providing for acknowledgment of
"justness" of claim to remove bar of limitations, refers to
moral obligation. John W. Masury & Son v. Bisbee Lum-
ber Co., 49 Ariz. 443, 68 P.2d 679, 693.
JUSTS, or JOUSTS. Exercises between martial
men and persons of honor, with spears, on horse-
back; different from tournaments, which were
military exercises between many men in troops.
24 Hen. VIII. c. 13.
JUSTUM NON EST ALIQUEM ANTENATUM
MORTUUM FACERE BASTARDUM, QUI PRO
TOTA VITA SUA PRO LEGITIMO HABETUR. It
is not just to make a bastard after his death one
elder born who all his life has been accounted
legitimate. 8 Coke, 101.
JUVENILE COURTS. A court having special ju-
risdiction, of a paternal nature, over delinquent
and neglected children. Bryant v. Brown, 151
Miss. 398, 118 So. 184, 188, 60 A.L.R. 1325.
JUXTA. Lat. Near; following; according to.
JUXTA CONVENTIONEM. According to the cov-
enant. Fleta lib. 4, c. 16, § 6.
JUXTA FORMAM STATUTI. According to the
form of the statute.
JUXTA RATAM. At or after the rate. Dyer, 82.
JUXTA TENOREM SEQUENTEM. According to
the tenor following. 2 Salk. 417. A phrase used
in the old books when the very words themselves
referred to were set forth. Id.; 1 Ld. Raym. 415.
JUXTAPOSITION. A placing or being placed in
nearness or contiguity; or side by side; as a
juxtaposition of words. Brown v. State, 126 Tex.
Cr.R. 449, 72 S.W.2d 269, 270.
In patent law, "juxtaposition" is the English equivalent
of "aggregation." Mesta Mach. Co. v. Federal Machine &
Welder Co., C.C.A.Pa., 110 F.2d 479, 481.
JUZGADO. In Spanish law. The judiciary; the
body of judges; the judges who concur in a de-
cree.
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K. B.
K
K. B. An abbreviation for "King's Bench," (q. v.).
K. C. An abbreviation for "King's Counsel."
KABANI. A person who, in oriental states, sup-
plies the place of our notary public.
KABOOLEAT. In Hindu law. A written agree-
ment, especially one signifying assent, as the
counterpart of a revenue lease, or the document
in which a payer of revenue, whether to the gov-
ernment, the zamindar, or the farmer, expresses
his consent to pay the amount assessed upon his
land. Wils. Ind. Gloss.
KAHAKAI. Hawaiian. The junction or edge of
the sea and land. See Andrew's Hawaiian Dic-
tionary. Seashore, the sand of the beach, the re-
gion of country bordering on the sea. The word
comes from kaha meaning scratch or mark and
kai meaning sea or salt water.
KAHAWAI. Hawaiian. The flowing stream. It
may include the bed or channel of the stream and
may, also, include the portion of such channel cov-
ered only in times of high water or of freshets.
KAIA. A key, kay, or quay. Spelman.
KAIAGE, or KAIAGIUM. A wharfage-due.
KAIN. In Scotch law. Poultry renderable by a
vassal to his superior, reserved in the lease as the
whole or a part of the rent. Bell.
KALALCONNA. A duty paid by shopkeepers in
Hindostan, who retail spirituous liquors; also the
place where spirituous liquors are sold. Wharton.
KALEND1E. In English ecclesiastical law. Rural
chapters, or conventions of the rural deans and
parochial clergy, which were formerly held on the
calends of every month; hence the name. Paroch.
Antiq. 604.
KALENDAR. An account of time, exhibiting the
days of the week and month, the seasons, etc.
More commonly spelled "calendar."
KALENDARIUM. In the civil law. A calendar;
a book of accounts, memorandum-book, or debt-
book; a book in which accounts were kept of mon-
eys loaned out on interest. Dig. 32, 64. So called
because the Romans used to let out their money
and receive the interest on the calends of each
month. Calvin.
KALENDS. See Calends.
KARL. In Saxon and old English law. A man;
a serving man. Buskarl, a seaman. Huskarl, a
house servant. Spelman.
KARRATA. In old records. A cart-load. Cowell;
Blount.
KAST. In Swedish law. Jettison; a literal trans-
lation of the Latin "jactus."
KAST-GELD. Contribution for a jettison; av-
erage.
KATATONIA. See Insanity.
KAY. A quay, or key.
KAYAGE. See Cayagium.
KAZY. A Mohammedan judge or magistrate in
the East Indies, appointed originally by the court
at Delhi, to administer justice according to their
written law.
KEELAGE. The right to demand money for the
privilege of anchoring a vessel in a harbor; also
the money so paid.
KEELHALE, KEELHAUL. To drag a person un-
der the keel of a ship by means of ropes from the
yard-arms, a punishment formerly practiced in the
British navy. Enc. Lond.
KEELS. This word is applied, in England, to ves-
sels employed in the carriage of coals. Jacob.
KEEP, n. A strong tower or hold in the middle of
any castle or fortification, wherein the besieged
make their last efforts of defense, was formerly,
in England, called a "keep;" and the inner pile
within the castle of Dover, erected by King Henry
II. about the year 1153, was termed the "King's
Keep;" so at Windsor, etc. It seems to be some-
thing of the same nature with what is called
abroad a "citadel." Jacob.
KEEP, v. To continue. People v. Roseberry, 23
Cal.App.2d 13, 71 P.2d 944; Briggs v. U. S., C.C.A.
Mich., 45 F.2d 479, 480.
To have or retain in one's power or possession;
not to lose or part with; to preserve or retain.
Deans v. Gay, 132 N.C. 227, 43 S.E. 643.
To maintain, carry on, conduct, or manage;
as, to "keep" a liquor saloon, bawdy house, gam-
ing table, nuisance, inn, hotel or policy game.
State v. Irvin, 117 Iowa 469, 91 N.W. 760; State
v. Cox, 52 Vt. 474; State v. Cieri, 128 Conn. 149, 20
A.2d 733, 734.
To maintain, tend, harbor, feed, and shelter;
as, to "keep" a dangerous animal, to "keep" a
horse at livery, to "keep" a dog. Allen v. Ham,
63 Me. 536; Skinner v. Caughey, 64 Minn. 375, 67
N.W. 203; Elender v. White, La.App., 14 So.2d
280.
To maintain continuously and methodically for
the purposes of a record; as, to "keep" books.
See Backus v. Richardson, 5 Johns., N.Y., 483;
Hammond v. Niagara Fire Ins. Co., 92 Kan. 851,
142 P. 936, 937. Thus to "keep" records of court
means, not only to preserve the manual possession
of the records, books, and papers, but to correctly
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KEEPER
transcribe therein the proceedings of the court.
Myers v. Colquitt, Tex.Civ.App., 173 S.W. 993, 997.
To maintain continuously and without stoppage
or variation; as, when a vessel is said to "keep
her course," that is, continue in motion in the
same general direction in which she was previous-
ly sailing. See The Britannia, 153 U.S. 130, 14 S.Ct.
795, 38 L.Ed. 660; to maintain, to cause to con-
tinue without essential change of condition. Are.
den v. Boone, Tex.Com.App., 221 S.W. 265, 266.
To take care of and to preserve from danger,
harm, or loss. Tannenbaum v. Seacoast Trust Co.
of Asbury Park, 16 N.J.Misc. 234, 198 A. 855, 869.
A place where liquor is "possessed" is subject to abate-
ment as place where liquor is "kept". Butler Hotel Co.
v. U. S., C.C.A.Wash., 35 F.2d 76.
As applied to school refers to conduct of school activities.
Borchers v. Taylor, 83 N.H. 564, 145 A. 666, 668, 63 A.L.R.
874.
As used in commitment order commanding marshal "to
take and keep and safely deliver" prisoner to custody of
penitentiary warden means to keep prisoner in local jail
until time to take train for penitentiary. Smith v. Swope,
C.C.A.Wash., 91 F.2d 260, 261.
As used in statute concerning voting by persons "kept"
at public or charitable institutions, the word implies
being beneficiaries of charity. Rathbun v. Smith, 23 N.Y.
S.2d 95, 97, 175 Misc. 246.
As used in statute declaring it unlawful to keep a gam-
ing house, implies duration. State v. Cieri, 128 Conn. 149,
20 A.2d 733, 734.
As used in statute that vehicles. shall keep to right side
of center of road or highway, means that drivers should
get on right side of highway as quickly as possible and
remain there. Mahoning Savings & Trust Co. v. Kellner,
131 Ohio St. 69, 1 N.E.2d 616, 619.
The word "kept" in policies providing that gasoline shall
not be "kept, used, or allowed" on premises implies some
degree of permanence of storage thereof, Bouchard v.
Dirigo Mut. Fire Ins. Co., 113 Me. 17, 92 A. 899, 900, L.R.
A.1915D, 187; D. I. Felsenthal Co. v. Northern Assur. Co.,
Limited, of London, 284 Ill. 343, 120 N.E. 268, 271, 1 A.L.R.
602; Home Ins. Co. of New York v. Bridges, 172 Ky. 161,
189 S.W. 6, 7, L.R.A.1917C, 276; while "keeping in posses-
sion" contraband liquors means to have habitually in pos-
session, State v. Burns, 133 S.C. 238, 130 S.E. 641, 642.
Within statutory provision defining common nuisance the
word means kept for sale or barter or other commercial
purposes. Burner v. Commonwealth, 140 Va. 508, 125 S.E.
324, 325; Singer v. U. S., C.C.A.N.J., 288 F. 695, 696;
Ayers v. U. S., C.C.A.Ark., 58 F.2d 607, 610; Cuttera v.
U. S., C.C.A.La., 31 F.2d 439. Within statute relating to
slot machine for gaming, means holding the machine in
readiness for purpose of obtaining bettors, or for gaming.
Mooney v. State, 146 Tex.Cr. R. 64, 171 S.W.2d 494, 495.
KEEP DOWN INTEREST. The payment of in-
terest periodically as it becomes due; it does
not include the payment of all arrears of interest
which may have become due on any security from
the time when it was executed. 4 El. & Bl. 211.
KEEP HOUSE. As used in English bankrupt laws
the phrase denotes an act of bankruptcy.
It is committed when a trader absents himself from his
place of business and retires to his private residence to
evade the importunity of creditors. The usual evidence of
"keeping house" is refusal to see a creditor who has called
on the debtor at his house for money. Robs.Bankr. 119.
KEEP IN REPAIR. When a lessee is bound to
keep the premises in repair, he must have them
in repair at all times during the term; and, if
they are at any time out of repair, he is guilty
of a breach of the covenant. 1 Barn. & Ald. 585.
KEEP OPEN. To allow general access to one's
shop, for purposes of traffic, is a violation of a
statute forbidding him to "keep open" his shop on
the Lord's day, although the outer entrances are
closed. Corn. v. Harrison, 11 Gray, Mass., 308.
To "keep open," in the sense of such a law, im-
plies a readiness to carry on the usual business in
the store, shop, saloon, etc. Lynch v. People, 16
Mich. 472.
KEEPER. A custodian, manager, or superintend-
ent; one who has the care, custody, or manage-
ment of any thing or place; one who has or holds
possession of anything. Schultz v. State, 32 Ohio
St. 281; State v. Rozum, 8 N.D. 548, 80 N.W. 481;
Fishell v. Morris, 57 Conn. 547, 18 A. 717, 6 L.R.A.
82; Stevens v. People, 67 Ill. 590; Janssen v. Voss,
189 Wis. 222, 207 N.W. 279, 280; State v. Weston,
235 Iowa 148, 15 N.W.2d 922, 923; People v. Du.-
binsky, Sp.Sess., 31 N.Y.S.2d 234, 238.
KEEPER OF DOG. A harborer of a dog. Elend-
er v. White, La.App., 14 So.2d 280, 282. Any per-
son, other than owner, harboring or having in
his possession any dog. Hancock v. Finch, 9 A.2d
811, 126 Conn. 121. One who, either with or with-
out owner's permission, undertakes to manage,
control, or care for it as dog owners in general
are accustomed to do. Raymond v. Bujold, 89 N.
H. 380, 199 A. 91, 92.
KEEPER OF A BAWDY HOUSE or HOUSE OF
ILL FAME. A person who has control, proprietor-
ship, or management of the house in question.
Jones v. State, 10 Okl.Cr. 79, 133 P. 1134, 1135;
Gregg v. People, 65 Colo. 390, 176 P. 483, 485;
State v. Weston, 235 Iowa 148, 15 N.W.2d 922, 923.
KEEPER OF THE FOREST. In old English law.
An officer (called also chief warden of the forest)
who had the principal government of all things
relating to the forest, and the control of all of-
ficers belonging to the same. Cowell; Blount.
KEEPER OF THE GREAT SEAL. In English
law. A high officer of state, through whose hands
pass all charters, grants, and commissions of the
king under the great seal.
He is styled "lord keeper of the great seal," and this
office and that of lord chancellor are united under one per-
son; for the authority of the lord keeper and that of the
lord chancellor were, by St. 5 Eliz. c. 18, declared to be
exactly the same; and, like the lord chancellor, the lord
keeper at the present day is created by the mere delivery
of the king's great seal into his custody. Brown.
KEEPER OF THE KING'S CONSCIENCE. A.
name sometimes applied to the chancellor of Eng-
land, as being formerly an ecclesiastic and pre-
siding over the royal chapel. 3 Bl. Comm. 48.
KEEPER OF THE PRIVY SEAL. In English law.
An officer through whose hands pass all charters
signed by the king before they come to the great
seal. He is a privy councillor, and was anciently
called "clerk of the privy seal," but is now general-
ly called the "lord privy seal." Brown.
KEEPER OF THE TOUCH. The master of the
assay in the English mint. 12 Hen. VI. c. 14.
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KEEPING
KEEPING A GAMBLING HOUSE OR PLACE.
A proprietor is guilty if with his knowledge, ac-
quiescence, and consent, express or implied, gam-
bling is carried on upon premises in his posses-
sion as owner or lessee, or under his management
or control, by his associates or subordinates who
are likewise guilty if they are present aiding and
assisting in carrying on such gambling operations
for him. Commonwealth v. Pinkenson, 138 Pa.
Super. 485, 11 A.2d 176, 179. A proprietor of a
place not kept for the purpose of gambling is
guilty if he allows gambling to be carried on and
participates in it or receives a benefit from it in
some way. People v. Dubinsky, Sp.Sess., 31 N.Y.
S.2d 234, 238.
KEEPING A GAMBLING TABLE OR BANK. If
one has possession or custody of a gaming table,
and authority over its use, and supervises the
gaming, he is guilty. Smith v. State, 29 Ala.App.
302, 196 So. 132, 133.
KEEPING A LOOKOUT. Being watchful of
movements of driver's own vehicle, as well as
those of the thing seen by him. Rebmann v.
Heesch, 227 Iowa 566, 288 N.W. 695, 701.
KEEPING BOOKS. Preserving an intelligent rec-
ord of a merchant's or tradesman's affairs with
such reasonable accuracy and care as may prop-
erly be expected from a man in that business.
KEEPING TERM. In English law. A duty per-
formed by students of law, consisting in eating
a sufficient number of dinners in hall to make the
term count for the purpose of being called to the
bar. Moz. & W.
KEEPING THE PEACE. Avoiding a breach of
the peace; dissuading or preventing others from
breaking the peace.
KEIKI. Hawaiian. Popular meaning is child, but
the meaning of that word in any particular in-
stance depends on context in which it is used, and
it can mean "descendant of any generation." In
re Kanoa's Trust Estate, 393 P.2d 753, 760, 47 Haw.
610; Kalakaua v. Parke, 8 Haw. 620, 621.
KELP-SHORE. The land between high and
low water mark. Stroud. Jud. Dict.
KENILWORTH EDICT. An edict or award be-
tween Henry III. and those who had been in arms
against him; so called because made at Kenil-
worth Castle, in Warwickshire, anno 51 Hen. III.,
A. D. 1266. It contained a composition of those
who had forfeited their estates in that rebellion,
which composition was five years' rent of the es-
tates forfeited. Wharton.
KENNING TO THE TERCE. In Scotch law. The
ascertainment by a sheriff of the just proportion
of the husband's lands which belongs to the widow
in virtue of her terce or third. An assignment of
dower by sheriff. Erskine, Inst. 11. 9. 50; Bell,
Dict.
KENTLAGE. In maritime law. A permanent
ballast, consisting usually of pigs of iron, cast in
a particular form, or other weighty material,
which, on account of its superior cleanliness, and
the small space occupied by it, is frequently pre-
ferred to ordinary ballast. Abb. Shipp. 5.
KENTREF. The division of a county; a hundred
in Wales. See Cantred.
KENTUCKY RESOLUTIONS. A series of resolu-
tions drawn up by Jefferson, and adopted by the
legislature of Kentucky in 1799, protesting against
the "alien and sedition laws," declaring their il-
legality, announcing the strict constructionist the-
ory of the federal government, and declaring "null-
ification" to be "the rightful remedy."
KERF. The jagged end of a stick of wood made
by the cutting. Pub. St. Mass. 1882, p. 1292.
KERHERE. A customary cart-way; also a com-
mutation for a customary carriage-duty. Cowell.
KERNELLATUS. Fortified or embattled. Co.
Litt. 5a.
KERNES. In English law. Idlers; vagabonds.
KEROSENE. A rock or earth oil. Morse v. Ins.
Co., 30 Wis. 534, 11 Am.Rep. 587.
It is, in a commercial sense, a refined coal or
earth oil, and is embraced within those terms as
used in an insurance policy. Bennett v. Ins. Co.,
81 N.Y. 273, 37 Am.Rep. 501. It is not petroleum,
but made from the latter by a process of a distilla-
tion and refinement. Bennett v. Ins. Co., 81 N.Y.
273, 37 Am.Rep. 501.
Oil having a specific gravity of 34.2 degrees.
Grosjean v. Chalmette Petroleum Corporation, La.
App., 182 So. 142, 143.
KEY. A wharf for the lading and unlading of
merchandise from vessels. More commonly
spelled "quay."
An instrument for fastening and opening a lock.
Any descriptive words in a land contract which
lead unerringly to the land. Blumberg v. Nathan,
190 Ga. 64, 8 S.E.2d 374, 375. Reference to some-
thing more definite by which an indefinite descrip-
tion of property is made certain. Erwin v. Hardin,
187 Ga. 275, 200 S.E. 159, 162.
KEYAGE. A toll paid for loading and unloading
merchandise at a key or wharf. Rowan v. Port-
land, 8 B. Mon., Ky., 253.
KEYS, in the Isle of Man, are the twenty-four
chief commoners, who form the local legislature.
1 Steph. Comm. 99.
In old English law. A guardian, warden, or keep-
er.
KEYS OF COURT. In old Scotch law. Certain
officers of courts. See Claves Curie.
KEYUS. A guardian, warden, or keeper. Mon.
Angl. tom. 2, p. 71.
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KINDRED
KHALSA. In Hindu law. An office of govern-
ment in which the business of the revenue depart-
ment was transacted under the Mohammedan gov-
ernment, and during the early period of British
rule. Khalsa lands are lands, the revenue of
which is paid into the exchequer. Wharton.
KIBEI. Jap. A person born in the United States
of Japanese parents and who has returned to
Japan for education and training. 1945 Report of
the Tenney Joint Fact-Finding Committee on Un-
American Activities to the California Legislature,
p. 48; Reader's Guide to Periodical Literature.
KIDDER. In English law. An engrosser of corn
to enhance its price. Also a huckster.
KIDDLE. In old English law. A dam or open
wear in a river, with a loop or narrow cut in it,
accommodated for the laying of engines to catch
fish. 2 Inst 38; Blount.
KIDNAPPING. At common law, the forcible ab-
duction or stealing and carrying away of a per-
son from own country to another. 4 Bl.Comm.
219, Collier v. Vaccaro, C.C.A.Md., 51 F.2d 17, 19;
State v. Berry, 200 Wash. 495, 93 P.2d 782, 787,
792; Commonwealth v. Cartusciello, 100 Pa.Super.
473, 478; Doss v. State, 220 Ala. 30, 123 So. 231,
232, 60 A.L.R. 712; the unlawful seizure and re-
moval of person from own country or state against
his will, State v. Olsen, 76 Utah 181, 289 P. 92, 93.
In American law, the intent to send the victim
out of the country does not constitute a necessary
part of the offense. The term includes false im-
prisonment plus the removal of the person to some
other place. 2 Bish. Crim. Law, § 671. See State
v. Rollins, 8 N.H. 567; State v. Sutton, 116 Ind.
527, 19 N.E. 602; Samson v. State, 37 Ohio App. 79,
174 N.E. 162, 163; People v. Fick, 89 Cal. 144, 26
P. 759; Furlong v. German-American Press Ass'n,
Mo.Sup., 189 S.W. 385, 389.
It is the abduction and detention of person, to exact
money or for other unlawful end. In re Dubroca y Pania-
gua, D.C.Pa., 33 F.2d 181, 182; asportation of victim, with-
out authority of law, with intent of detaining victim, State
v. Taylor, 70 N. D. 201, 293 N.W. 219, 223, 224; Keith v.
State, 120 Fla. 847, 163 So. 136; carrying away person
from his place of residence, forcibly or fradulently. Ex
parte Kelsey, 19 N.J.Misc. 488, 21 A.2d 676, 678; inten-
tional taking of person and compelling him to be detained
against his will, State v. Taylor, 70 N. D. 201, 293 N.W. 219,
223, 224; restraint of victim with intent to cause him to be
secretly confined or imprisoned against his will, or to be
sent out of the state against his will, State v. Berry, 200
Wash. 495, 93 P.2d 782, 787; unlawful and forcible con-
finement of person with intent to cause him to be secretly
confined, or imprisoned involuntarily or sent out of state
against his will, Doss v. State, 23 Ala.App. 168, 123 So.
237, 241; unlawful detention or imprisonment regardless
of purpose. State v. Berry, 200 Wash. 495, 93 P.2d 782,
787, 792; willful and unlawful seizing of person against his
will with intent to cause him to be confined, imprisoned,
or detained, People v. Weiss, 300 N.Y.S. 249, 254, 252 App.
Div. 463. The essence of offense is the unlawful secret
imprisonment. State v. Berry, 200 Wash. 495, 93 P.2d 782,
787, 792. Under the statutes of many states, one who en-
ters another's automobile and, without lawful authority,
compels the driver against his will to drive to some other
place, is guilty of kidnapping. Blashfield, Cyc. of Auto-
mobile Law and Prac., Perm. Ed., § 5528.42.
KILDERKIN. A measure of eighteen gallons.
Black's Law Dictionary Revised 4th Ed.-64
KILKETH. An ancient servile payment made by
tenants in husbandry. Cowell.
KILL, v. To deprive of life; to destroy the life
of an animal or person. The word "homicide"
expresses the killing of a human being. See Car-
roll v. White, 33 Barb., N.Y., 620; Porter v. Hugh-
ey, 2 Bibb., Ky., 232; Com. v. Clarke, 162 Mass.
495, 39 N.E. 280; Fisher v. State, 109 Ark. 456, 160
S.W. 210, 213.
The word "kill" contains no implication of crime.
Pilcher v. State, 16 Ala.App. 237, 77 So. 75.
KILL, n. A Dutch word, signifying a channel or
bed of the river, and hence the river or stream
itself. It is found used in this sense in descrip-
tions of land in old conveyances. French v. Car-
hart, 1 N.Y. 96.
KILLED. The passive verb "to be killed" must
generally impart to every one a meaning of some
kind of external violence. City of Fort Smith v.
Hairston, 196 Ark. 1005, 120 S.W.2d 689, 691.
KILLED INSTANTLY, in collision, may mean
that death was instantaneous but not precisely
coincidental with the impact. Cash v. Addington,
46 N.M. 451, 131 P.2d 265, 266; Justin v. Ketcham,
297 Mich. 592, 298 N.W. 294, 295.
KILLING BY MISADVENTURE. Accidental kill-
ing of a person where the slayer is doing a lawful
act, unaccompanied by any criminal carelessness
or reckless conduct, State v. Dean, 2 W.W.Harr.,
Del., 290, 122 A. 448, 449; excusable homicide oc-
curring where one engaged in doing lawful act,
without intention to do harm and, with proper pre-
caution to avoid danger, unfortunately kills anoth-
er. State v. Phillips, 7 W.W.Harr. 544, 187 A. 108,
111.
KILLYTH-STALLION. A custom by which lords
of manors were bound to provide a stallion for
the use of their tenants' mares. Spelman.
KIN. Relation or relationship by blood or con-
sanguinity. "The nearness of kin is computed
according to the civil law." 2 Kent, Comm. 413.
See Keviston v. Mayhew, 169 Mass. 166, 47 N.E.
612; Lusby v. Cobb, 80 Miss. 715, 32 So. 6; State
v. Bielman, 86 Wash. 460, 150 P. 1194; Poff v.
Pennsylvania R. Co., D.C.N.Y., ,57 F.Supp. 625,
626. As to "next of kin," see Next.
The primary and ordinary meaning of the word "kin"
is related by ties of consanguinity, but the word "kin" is
sometimes used in a general sense to include relationship
by blood or by marriage. State v. Hooper, 140 Kan. 481,
37 P.2d 52.
KIND. Class, grade, or sort. City of St. Louis
v. James Braudis Coal Co., Mo.App., 137 S.W.2d
668, 670. Genus; generic class; description. See
In Kind.
KINDRED. Relation by birth or consanguinity.
Relatives by blood. Next of kin. "Kindred of the
whole blood, preferred to kindred of the half
blood." 4 Kent, Comm. 404, notes. See In re
Carroll's Estate, 153 Misc. 649, 275 N.Y.S. 911;
Butler v. Elyton Land Co., 84 Ala. 384, 4 So. 675;
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KING
Wetter v. Walker, 62 Ga. 144; O'Connell v. Powers,
291 Mass. 153, 197 N.E. 162, 163; Frank v. Frank,
180 Tenn. 114, 172 S.W.2d 804, 806.
KING. The sovereign, ruler, or chief executive
magistrate of a state or nation whose constitution
is of the kind called "monarchical" is thus named
if a man; if it be a woman, she is called "queen."
The word expresses the idea of one who rules singly
over a whole people or has the highest executive power;
but the office may be either hereditary or elective, and the
sovereignty of the king may or may not be absolute,
according to the constitution of the country.
See Emperor.
KING CAN DO NO WRONG. This maxim means
that the king is not responsible legally for aught
he may please to do, or for any omission. Aust.
Jur. sect. VI.
It does not mean that everything done by the govern-
ment is just and lawful, but that whatever is exception-
able in the conduct of public affairs is not to be imputed
to the king, 2 Steph.Com., 11th ed. 486.
KING-CRAFT. The art of governing.
KINGDOM. A country where an officer called a
"king" exercises the powers of government, wheth-
er the same be absolute or limited. Wolff, Inst.
Nat. § 994. In some kingdoms, the executive of-
ficer may be a woman, who is called a "queen."
KING-GELD. A royal aid; an escuage (q. v.).
KING'S ADVOCATE. An English advocate who
holds, in the courts in which the rules of the
canon and civil law prevail, a similar position to
that which the attorney general holds in the ordi-
nary courts, i. e., he acts as counsel for the crown
in ecclesiastical, admiralty, and probate cases, and
advises the crown on questions of international
law. In order of precedence it seems that he ranks
after the attorney general. 3 Steph. Comm. 275n.
KINGS-AT-ARMS. The principal herald of Eng-
land was of old designated "king of the heralds,"
a title which seems to have been exchanged for
"king-at-arms" about the reign of Henry IV.
The kings-at-arms at present existing in England are
three—Garter, Clarencieux, and Norroy, besides Bath, who
Is not a member of the college. Scotland is placed under
an officer called "Lyon King-at-Arms," and Ireland is the
province of one named "Ulster." Wharton.
KING'S BENCH. The supreme court of common
law in England, being so called because the king
used formerly to sit there in person, the style of
the court being "coram ipso rege."
It was called the "queen's bench" in the reign of a
queen, and during the protectorate of Cromwell it was
styled the "upper bench." It consisted of a chief justice
and three puisne justices, who were by their office the
sovereign conservators of the peace and supreme coroners
of the land. It was a remnant of the aula regis, and was
not originally fixed to any certain place, but might follow
the king's person, though for some centuries past it usu-
ally sat at Westminster. It had a very extended jurisdic-
tion both in criminal and civil causes; the former in
what was called the "crown side" or "crown office," the
latter in the "plea side," of the court. Its civil jurisdiction
was gradually enlarged until it embraced all species of
personal actions. Since the judicature acts, this court
constitutes the "king's bench division" of the "high court
of justice." See 3 Bl.Comm. 41-43.
KING'S CHAMBERS. Those portions of the seas,
adjacent to the coasts of Great Britain, which are
inclosed within headlands so as to be cut off from
the open sea by imaginary straight lines drawn
from one promontory to another.
KING'S CORONER AND ATTORNEY. An of-
ficer of the court of king's bench, usually called
"the master of the crown office," whose duty it
is to file informations at the suit of a private sub-
ject by direction of the court. 4 Bl. Comm. 308,
309; 4 Steph. Comm. 374, 378.
KING'S COUNSEL. Barristers or serjeants who
have been called within the bar and selected to
be the king's counsel. They answer in some meas-
ure to the advocati fisci, or advocates of the rev-
enue, among the Romans. They must not be em-
ployed against the crown without special leave,
which is, however, always granted, at a cost of
about nine pounds. 3 Bl. Comm. 27.
KING'S EVIDENCE. When several persons are
charged with a crime, and one of them gives evi-
dence against his accomplices, on the promise of
being granted a pardon, he is said to be admitted
king's or (in America) state's evidence. 4 Steph.
Comm. 395; Sweet.
KING'S PROCTOR. A proctor or solicitor repre-
senting the crown in the former practice of the
courts of probate and divorce.
In petitions for dissolution of marriage, or for declara-
tions of nullity of marriage, the king's proctor may, under
the direction of the attorney general, and by leave of the
court, intervene in the suit for the purpose of proving col-
lusion between the parties. Mozley & Whitley.
KING'S REMEMBRANCER. An officer of the
central office of the English supreme court.
Formerly he was an officer of the exchequer, and had im-
portant duties to perform in protecting the rights of the
crown; e. g., by instituting proceedings for the recovery
of land by writs of intrusion, (q. v.,) and for the recovery
of legacy and succession duties; but of late years ad-
ministrative changes have lessened the duties of the office.
Sweet.
He was at the head of the department which had charge
of all revenue suits, and of matters pertaining to the office
of sheriff. He attended as the officer of the king's bench
when the lord mayor made his appearance on November
9th, and as representing the old court of exchequer when
the city of London did suit and service in discharge of
quit-rents for certain lands anciently held under the crown.
He presided at the Trial of the Pyx, the assaying and
weighing of the coins of the realm. See Remembrances of
Sir F. Pollock.
KING'S SILVER. In old English practice. A fine
due the king pro licentia concordandi, (for leave
to agree,) in the process of levying a fine. 5 Coke,
39, 43; 2 Inst. 511; 2 Bl. Comm. 350.
KING'S WIDOW. In feudal law. A widow of
the king's tenant in chief, who was obliged to take
oath in chancery that she would not marry with-
out the king's leave.
KINSFOLK. Relations; those who are of the
same family.
KINSHOTE. In Saxon law. A composition or
satisfaction paid for killing a kinsman. Spelman.
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KNIGHTS
KINSMAN. A man of the same race or family.
Wood v. Mitcham, 92 N.Y. 379.
KINSWOMAN. A female relation.
KINTAL, or KINTLE. A hundred pounds In
weight. See Quintal.
KINTLIDGE. A ship's ballast. See Kentlage.
KIPPER-TIME. In old English law. The space
of time between the 3d of May and the Epiphany,
in which fishing for salmon in the Thames, be-
tween Gravesend and Henley-on-Thames, was for-
bidden. Rot. Parl. 50 Edw. III.
KIRBY'S QUEST. In English law. An ancient
record remaining with the remembrancer of the
exchequer, being an inquisition or survey of all
the lands in England, taken in the reign of Edward
I. by John de Kirby, his treasurer. Blount; Cow-
ell.
KIRK. In Scotch law. A church; the church;
the established church of Scotland.
KIRK-MOTE. A meeting of parishioners on
church affairs.
KIRK-OFFICER. The beadle of a church in Scot-
land.
KIRK-SESSION. A parochial church court in
Scotland, consisting of the ministers and elders
of each parish.
KISSING THE BOOK. The ceremony of touching
the lips to a copy of the Bible, used in administer-
ing oaths. It is the external symbol of the wit-
ness' acknowledgment of the obligation of the
oath.
KIST. In Hindu law. A stated payment; install-
ment of rent.
KLEPTOMANIA. In medical jurisprudence. A
species (or symptom) of mania, consisting in an
irresistible propensity to steal. Looney v. State,
10 Tex.App. 525, 38 Am.Rep. 646; State v. Reidell,
9 Houst., Del., 470, 14 A. 550; Lowe v. State, 70
S.W. 206, 44 Tex.Cr.R. 224 (citing Hurst v. State,
40 Tex.Cr.R. 378, 46 S.W. 635, 50 S.W. 719).
It is said to be often shown in cases of women, laboring
under their peculiar diseases or of those far advanced in
pregnancy. A sharp distinction is made between kleptoma-
nia and the tendency to steal so commonly observed in the
well defined forms of insanity; the former is a defective
mental characteristic approaching the confines of insan-
ity on one subject alone, while the individual, on all other
subjects, is perfectly sane. It differs from shoplifting
in that the shoplifter steals for a purpose, and only those
articles which are of value, while the kleptomaniac takes
goods of any description, often of no use to herself and
with no motive for their possession; 4 Am.Lawy. 533.
KNACKER. One who slaughters useless or dis-
eased animals or deals in such. Cent. Dict. A.
regular occupation in London and other large cit-
ies, regulated by act of parliament August 18, 1911.
KNAVE. A rascal; a false, tricky, or deceitful
person. The word originally meant a boy, attend-
ant, or servant, but long-continued usage has giv-
en it its present signification.
KNAVESHIP. A portion of grain given to a mill-
servant from tenants who were bound to grind
their grain at such mill.
KNEEL. To bend the knees in worship without
resting on them is to kneel. 36 L.J.Ecc. 10.
KNIGHT. In English law. The next personal
dignity after the nobility.
Of knights there are several orders and degrees. The first
in rank are knights of the Garter, instituted by Richard I.
and improved by Edward III. in 1344; next follows' a
knight banneret; then come knights of the Bath, institut-
ed by Henry IV., and revived by George I.; and they
were so called from a ceremony of bathing the night be-
fore their creation. The last order are knights bachelors,
who, though the lowest, are yet the most ancient, order
of knighthood; for we find that King Alfred conferred
this order upon his son Athelstan. 1 Bl.Comm. 403.
KNIGHTENGUILD. An ancient guild or society
formed by King Edgar.
KNIGHTHOOD. The rank, order, character, or
dignity of a knight.
KNIGHT-MARSHAL. In English law. An officer
in the royal household who has jurisdiction and
cognizance of offenses committed within the house-
hold and verge, and of all contracts made therein,
a member of the household being one of the par-
ties. Wharton.
KNIGHTS BACHELORS. In English law. The
most ancient, though lowest, order of knighthood.
1 Bl. Comm. 404.
KNIGHTS BANNERET. In English law. Those
created by the sovereign in person on the field
of battle. They rank, generally, after knights of
the Garter. 1 Bl. Comm. 403.
KNIGHT'S FEE. The determinate quantity of
land, (held by an estate of inheritance,) or of an-
nual income therefrom, which was sufficient to
maintain a knight.
In the time of Henry II. the estate was estimated at £20
a year; but Lord Coke in his time it to be an estate
of 680 acres. See 1 Bl.Comm. 404, 410; 2 Bl.Comm. 62;
Co.Litt. 69a; 1 Poll. & Malt'. 232.
KNIGHTS OF ST. MICHAEL AND ST. GEORGE.
An English order of knighthood, instituted in 1818.
KNIGHTS OF ST. PATRICK. Instituted in Ire-
land by George III., A. D. 1763. They have no
rank in England.
KNIGHTS OF THE BATH. An order supposed to
have been instituted by Henry IV., and revived by
George I. in 1725 to consist of the sovereign, a
grand master and 36 knights companions. In
1815 the order was instituted in three classes. In
1847 the civil knights, commanders and compan-
ions were added. They are so called from the
ceremony formerly observed of bathing the night
before their creation.
KNIGHTS OF THE CHAMBER. Those created in
the sovereign's chamber in time of peace, not in
the field. 2 Inst. 666.
KNIGHTS OF THE GARTER. See Garter.
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KNIGHTS
KNIGHTS OF THE POST. A term for hireling
witnesses.
KNIGHTS OF THE SHIRE. In English law.
Members of parliament representing counties .or
shires, in contradistinction to citizens or burgesses,
who represent boroughs or corporations.
A knight of the shire is so called, because, as the terms
of the writ for election still require, it was formerly neces-
sary that he should be a knight. This restriction was
coeval with the tenure of knight-service, when every man
who received a knight's fee immediately of the crown was
constrained to be a knight; but at present any person may
be chosen to fill the office who is not an alien. The money
qualification is abolished by 21 Vict. c. 26. Wharton.
KNIGHTS OF THE THISTLE. A Scottish order
of knighthood.
This order is said to have been instituted by Achalus,
king of Scotland, A. D. 819. The better opinion, however,
is that it was instituted by James V. in 1534, was revived
by James VII. (James II. of England) in 1687, and reestab-
lished by Queen Anne in 1703. They have no rank in
England. Wharton.
KNIGHT'S SERVICE. Upon the Norman con-
quest, all the lands in England were divided into
knight's fees, in number above sixty thousand.
For every knight's fee, a knight was bound to attend the
'king in his wars forty days in• a year, in which space of
time a campaign was generally finished. If a man only
held half a knight's fee, he was only bound to attend
twenty days; and so in proportion. But this personal
service, in process of time, grew into pecuniary commuta-
tions, or aids; until at last, with the military part of the
feudal system, it was abolished at the restoration, by the
statute of 12 Car. II. c. 24. 1 Bla.Com. 410; 2 id. 62;
Will. Real Pr. 144; 1 Poll. & Maitl. 230.
KNOCK DOWN. To assign to a bidder at an auc-
tion by a knock or blow of the hammer.
Property is said to be "knocked down" when the auc-
tioneer, by the fall of his hammer, or by any other audible
or visible announcement, signifies to the bidder that he is
entitled to the property on paying the amount of his bid,
according to the terms of the sale. "Knocked down" and
"struck off" are synonymous terms. Sherwood v. Reade,
7 Hill, N.Y., 439.
KNOT. In seamen's language, a "knot" is a divi-
sion of the log-line serving to measure the rate
of the vessel's motion.
The number of knots which run off from the reel in
half a minute shows the number of miles the vessel sails in
an hour. ' Hence when a ship goes 8 nautical miles an hour
she is said to go "8 knots." Webster.
KNOW. • To have knowledge; to possess informa-
tion, instruction, or wisdom. State v. Ransberger,
106 Mo. 135, 17 S.W. 290. Horne v. Lewis, 160 Ga.
824, 129 S.E. 95; To perceive or apprehend, to un-
derstand. International-Great Northern R. Co. v.
Pence, Tex.Civ.App., 113 S.W.2d 206, 210.
The word "familiar" is equivalent. Smiley v. Lenane,
363 Ill. 66, 1 N.E.2d 213, 216.
KNOW ALL MEN. In conveyancing. A form of
public address, of great antiquity, and with which
many written instruments, such as bonds, letters
of attorney, etc., still commence.
KNOWINGLY. With knowledge; consciously; in-
telligently; willfully; intentionally. Atkinson v.
State, 133 Ark. 341, 202 S.W. 709, 710; People v.
Calvert, 93 Cal.App. 568, 269 P. 969, 971; Hutch-
man v. State, 61 Okl.Cr. 117, 66 P.2d 99, 102; Gott-
lieb v. Commonwealth, 126 Va. 807, 101 S.E. 872,
873; Cheffer v. Eagle Discount Stamp Co., 348 Mo.
1023, 156 S.W.2d 591, 595; and knowledge must be
actual, not merely constructive, Parsons v. Rinard
Grain Co., 186 Iowa 1017, 173 N.W. 276, 280.
The word imports a perception of facts requisite to make
up crime, Commonwealth v. Altenhaus, 317 Mass. 270, 57
N.E.2d 921, 922; knowledge of act or thing done as well as
evil intent or bad purpose, Erby v. state, 181 Tenn. 64'l,
184 S.W.2d 14, 16; a knowledge that facts exist which bring
act or omission within provisions of Code. People v.
Forbath, 5 Cal.App.2d Supp. 767, 42 P.2d 108, 109.
The use of the word in an indictment is equivalent to
an averment that the defendant knew what he was about
to do, and, with such knowledge, proceeded to do the
act charged. U. S. y. Claypool, D.C.Mo,, 14 F. 128; State
v. Wilson, 41 Idaho 598, 242 P. 787, 788,
KNOWINGLY ,AND WILLFULLY. This phrase,
in reference to violation of a statute, means con-
sciously and intentionally. U. S: v. Lehigh Valley
R. Co., C.C.A.N.J., 204 F. 705, 708; Oregon-Wash-
ington R. & Na y . Co. v. U. S., C.C.A.Idaho, 205 F.
337, 339; U. S. v. Philadelphia & R. Ry. Co., D.C.
Pa., 238 F. 428, 430.
KNOWLEDGE. Acquaintance with fact or truth,
United States Fire Ins. Co. v. Smith, 231 Ala. 169,
164 So. 70, 82, 103 A.L.R. 1468; People v. Henry,
23 Cal.App.2d 155, 72 P.2d 915, 921.
It has also been defined as act or state of knowing or
understanding, Witters v. U. S., 70 App.D.C. 316, 106 F.2d
837, 840, 125 A.L.R. 1031; People v. Henry, 72 P.2d 915,
921, 23 Cal.App.2d 155; actual knowledge, notice or in-
formation, New York Underwriters Ins. Co. v. Central
Union Bank of South Carolina, C.C.A.S.C., 65 F.2d 738, 739;
Howard v. Whittaker, 250 Ky. 836, 64 S.W.2d 173: Cooper
v. Independent Transfer & Storage Co., 19 P.2d 1057, 1058,
52 Idaho 747; assurance of fact or proposition founded on
perception by senses, or intuition, Brooks v. Sessoms, 47
Ga.App. 554, 171 S.E. 222, 224; clear perception of that
which exists, or of truth, fact or duty, People v. Steele,
179 Misc. 587, 37 N.Y.S.2d 199, 200; United States Fire
Ins. Co. v. Smith, 231 Ala. 169, 164 So. 70, 82, 103 A.L.R.
1468; credible or reliable information, Sackett v. Farmers'
State Bank of Boone, 209 Iowa 487, 228 N.W. 51, 54;
Guardian Life Ins. Co. v. Weiser, Sup., 51 N.Y.S.2d 771,
773; firm belief, Witters v. U. S., 70 App.D.C. 316, 106 F.
2d 837, 840, 125 A.L.R. 1031; guilty knowledge, Golds-
worthy v. Anderson, 92 Colo. 446, 21 P.2d 718, 87 A.L.R.
1396; information of fact, Green v. Stewart, 106 Cal. App.
518, 289 P. 940, 944; means of mental impression, Howard
v. Whittaker, 250 Ky. 836, 64 S.W.2d 173; miscellaneous
information and circumstances which engender belief to
moral certainty or induce state of mind that one con-
siders that he knows, .Merritt v. American Stevedores, 15
N.J.Misc. .710, 195 A. 382; notice, Lally v. Cronen, 247 N.
Y. 58, 159 N.E. 723, 725; Wise v. Curdes, 219 Ind. 606, 40
N.E.2d 122, 126; notice or knowledge sufficient to excite
attention and put person on guard and call for inquiry,
Iberville Land Co. v. Amerada Petroleum Corporation, C.
C.A.La., 141 F.2d 384, 389; Hayward Lumber & Invest-
ment Co. v. Orondo Mines, 34 Cal.App.2d 697, 94 P.2d 380,
382, 383; Reynolds v. Moseley, C.C.A.Ark., 32 F.2d 979,
981; personal cognizance or knowledge or means of knowl-
edge, The Chickie, D.C.Pa., 54 F.Supp. 19, 20; Taylor v.
Moore, 87 Utah 493, 51 P.2d 222, 229; In re Eastern Transp.
Co., D.C.Md., 37 F.2d 355, 363; state of being or having
become aware of fact or truth; United States Fire Ins.
Co. v. Smith, 231 Ala. 169, 164 So. 70, 82, 103 A.L.R. 1468;
Howard v. Whittaker, 250 Ky. 836, 64 S.W.2d 173.
"Knowledge" consists in the perception of the truth of
affirmative or negative propositions, while "belief" admits
of all degrees, from the slightest suspicion to the fullest
assurance. State v. Godette, 188 N.C. 497, 125 S.E. 24, 28;
Franken v. State, 190 Wis. 424, 209 N.W. 766, 769. The
difference between them is ordinarily merely in the degree,
to be judged of by the court, when addressed to the
court; by the jury, when addressed to the jury. Hatch
v. Carpenter, 9 Gray, Mass., 271. See Utley v. Hill, 155 Mo".
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KYTH
232, 55 S.W. 1091, 49 L.R.A. 323, 78 Am.St.Rep..569; Ohio
Valley Coffin Co. v. Goble, 28 Ind.App. 362, 62 N.E. 1025.
Knowledge may be imputed, when the means of knowl-
edge exists, known and accessible to the party, and capable
of communicating positive information. Smith v. Indus-
trial Acc. Commission of California, 174 Cal. 199, 162 P.
636, 637; Scheckells v. Ice Plant Mining Co., Mo.App.,
180 S.W. 12, 15; Hopkins v. McCarthy, 121 Me. 27, 115 A..
513, 515. However closely actual notice may, in many in-
stances, approximate knowledge, and constructive notice
may be its equivalent in effect, there may be actual notice
without knowledge; and, when constructive notice is
made the test to determine priorities of right, it may fall
far short of knowledge. Cleveland Woolen Mills v. Sibert,
21 Ala. 140, 1 So. 773; Dodge v. Grain Shippers' Mut. Fire
Ins. Ass'n, 176 Iowa 316, 157 N.W. 955, 961; Stanton v.
Hawkins, 41 R.I. 501, 103 A. 229, 230. Thus, oral notice to
employer by employe of injury is not "knowledge" of the
injury, excusing employe's failure to give notice of injury
required by Workmen's Compensation Act. In re Brown,
228 Mass. 31, 116 N.E. 897, 898; In re Simmons, 117 Me.
175, 103 A. 68.
"Knowledge" of contents of an instrument must include
understanding of its actual contents. Mitchell v. Slye, 137
Md. 89, 111 A. 814, 819.
Law regards as "knowledge" reckless misrepresentation,
with intent to deceive, about that which party pretended
to know but knew nothing. Holt v. Gloer, 44 Ga.App. 685,
162 S.E. 663, 664.
Carnal knowledge. See Carnal Knowledge.
Knowledge of another's peril. One has "knowl-
edge of peril of another," within doctrine of dis-
covered peril, whenever it reasonably appears
from the known facts and circumstances that the
latter is pursuing a course which will probably
terminate in serious bodily injury to him, and
that he probably will pursue it to the end. Gal-
veston, H. & S. A. Ry. Co. v. Wagner, Tex.Com.
App., 298 S.W. 552, 554.
Knowledge of law includes knowledge of the
decisions of the courts, which are part of the law.
Spitzer v. Board of Trustees for Regina Public
School Dist. No. 4, of Saskatchewan, C.C.A.Ohio,
267 F. 121, 126.
Personal knowledge. Knowledge of the truth in
regard to a particular fact or allegation, which
is original, and does not depend on information
or hearsay. Personal knowledge of an allegation
in an answer is personal knowledge of its truth
or falsity; and if the allegation is a negative one,
this necessarily includes a knowledge of the truth
or falsity of the allegation denied. West v. Home
Ins. Co., C.C.Or., 18 F. 622.
KNOWN. Familiar; perceived; recognized; un-
derstood; especially, when used absolutely, famil-
iar to all; generally understood or perceived, and
term may, according to context, refer to both ac-
tual and constructive knowledge. Wolf v. Mallinc-
krodt Chemical Works, 336 Mo. 746, 81 S.W.2d 323,
333; McCullough v. National Bank of Union City,
127 Pa.Super. 452, 193 A. 65, 66.
KNOWN HEIRS. In a statute relating to the sale
of property of unknown heirs, it has been held to
mean those persons who are known, and whose
right to inherit, or the extent of whose right, to
inherit, is dependent on the non-existence of other
persons nearer or as near as the ancestor in the
line of descent. People v. Ryder, 65 Hun 175, 19
N.Y.S. 977.
KNOWN-MEN. A title formerly given to the
Lollards. Cowell.
KORAN. The Mohammedan book of faith. It
contains both ecclesiastical and secular laws.
KOSHUBA. The Jewish "Koshuba" is a marriage
contract or marriage settlement. Hurwitz v. Hur-
witz, 216 App.Div. 362, 215 N.Y.S. 184, 185.
KULEANA. The Hawaiian term "kuleana" means
a small area of land, such as were awarded in
fee by the Hawaiian monarch, about the year 1850,
to all Hawaiians who made application therefor.
De Fries v. Scott, C.C.A.Hawaii, 268 F. 952, 953.
KUT-ItUBALA. In Hindu law. A mortgage-deed
or deed of conditional sale, being one of the cus-
tomary deeds or instruments of security in India
as declared by regulation of 1806, which regulates
the legal proceedings to be taken to enforce such
a security. It is also called "Byebil-Wuffa."
Wharton.
KYMORTHA. A Welsh term for a waster, rhym-
er, minstrel, or other vagabond who makes assem-
blies and collections. Barring. Ob. St. 360.
KYTH. Sax. Kin or kindred.
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L
L
L. This letter, as a Roman numeral, stands for
the number "fifty." It is also used as an abbrevia-
tion for "law," "liber," (a book,) "lord," and some
other words of which it is the initial.
L. 5. An abbreviation of "Long Quinto," one of
the parts of the Year Books.
L. C. An abbreviation which may stand either
for "Lord Chancellor," "Lower Canada," or "Lead-
ing Cases."
L. J. An abbreviation for "Law Judge;" also for
"Law Journal."
L. L. (also L. Lat.) and L. F. (also L. Fr.) are
used as abbreviations of the terms "Law Latin"
and "Law French."
L. R. An abbreviation for "Law Reports."
L. S. An abbreviation for "Locus sigilli," the
place of the seal, i. e., the place where a seal is to
be affixed, or a scroll which stands instead of a
seal. See Smith v. Butler, 25 N.H. 524; Barnes v.
Walker, 115 Ga. 108, 41 S.E. 243; McLaughlin v.
Braddy, 63 S.C. 433, 41 S.E. 523, 90 Am.St.Rep.
681.
LL. The reduplicated form of the abbreviation
"L." for "law," used as a plural. It is generally
used in citing old collections of statute law; as
"LL. Hen. I."
LL.B., LL.M., and LL.D. Abbreviations used to
denote, respectively, the three academic degrees
in law,—bachelor, master, and doctor of laws.
LA. Fr. The. The definite article in the femin-
ine gender. Occurs in some legal terms and phras-
es; as "Termes de la Ley," terms of the law.
LA. Fr. There. An adverb of time and place;
whereas.
LA CHAMBRE DES ESTEILLES. The star-cham-
ber.
LA CONSCIENCE EST LA PLUS CHANGEANTE
DES REGIES. Conscience is the most changeable
of rules.
LA LEY FAVOUR LA VIE D'UN HOME. The
law favors the life of a man. Yearb. M. 10 Hen.
VI. 51.
LA LEY FAVOUR L'ENHERITANCE D'UN
HOME. The law favors the inheritance of a man.
Yearb. M. 10 Hen. VI. 51.
LA LEY VOCT PLUS TOST SUFFER UN MIS-
CHEIFE QUE UN INCONVENIENCE. The law
will sooner suffer a mischief than an inconven-
ience. Litt. § 231. It is holden for an inconven-
ience that any of the maxims of the law should
be broken, though a private man suffer loss. Co.
Litt. 152b.
L'OBLIGATION SANS CAUSE, OU SUR UNE
FAUSSE CAUSE, OU SUR CAUSE ILLICITE, NE
PEUT AVOIR AUCUN EFFET. An obligation
without consideration, or upon a false considera-
tion (which fails), or upon unlawful consideration,
cannot have any effect. Code 3. 3. 4; Chitty,
Contr. 11th Am. ed. 25, note.
L'OU LE LAY DONE CHOSE, LA CEO DONE
REMEDIE A VENER A CEO. Where the law
gives a right, it gives a remedy to recover. 2 Rolle
17.
LAAS. In old records. A net, gin, or snare.
LABEL. Anything appended to a larger writing,
as a codicil; a narrow slip of paper or parchment
affixed to a deed or writ, in order to hold the ap-
pending seal.
An affixation to or markings on a manufactured
article, giving information as to its nature or
quality, or the contents of a package or container,
name of the maker, etc. See State v. Reickenbach,
235 Iowa 731, 17 N.W.2d 530, 531; Higgins v.
Keuffel, 140 U.S. 428, 11 S.Ct. 731, 35 L.Ed. 470;
Burke v. Cassin, 45 Cal. 481, 13 Am.Rep. 204; U._
S. v. Skilken, D.C.Ohio, 293 F. 916, 919.
A copy of a writ in the exchequer. 1 Tidd, Pr.
156.
A slip, mark or tag of paper, or other material.
National Battery Co. v. Western Molded Products
Co., D.C.Cal., 39 F.Supp. 954, 956.
An identification by inscription of the contents,
ownership, etc. Graham v. Justice's Court of'
Colusa Judicial Tp., 20 Cal.App.2d 328, 67 P.2d 127,
128.
LABINA. In old records. Watery land.
LABOR. Work; toil; service.
Physical exertion. Leathers & Martin v. Conley,.
La.App., 157 So. 607, 609.
A Spanish land measure, in use in Mexico and
formerly in Texas, equivalent to 177 1,E acres.
Continued exertion, of the more onerous and inferior
kind, usually and chiefly consisting in protracted expen-
diture of muscular force. It is used in this sense in sev-
eral legal phrases, such as "a count for work and labor,"
"wages of labor," etc., and is commonly construed as hav-
ing such meaning when used in statutes giving liens to
laborers, Road Supply & Metal Co. v. Bechtelheimer, 119 •
Kan. 560, 240 P. 846, 847; Stuart v. Camp Carson Mining &
Power Co., 84 Or. 702, 165 P. 359, 362; Beakley v. Lind,
Tex.Civ.App., 32 S.W.2d 671, 672; and in the Immigration
Act excluding aliens coming to the United States under
contract, "to perform labor." Ex parte Aird, D.C.Pa., 276
F. 954, 957; U. S. v. Union Bank of Canada, C.C.A.N.Y.,
262 F. 91, 93. For "Farm Labor," see that title.
The word is sometimes construed to mean service ren-
dered or part played in production of wealth, Britt v.
Cotter Butte Mines, 108 Mont. 174, 89 P.2d 266, 267; or
superintendence or supervision of work. Wandling v.
Broaddus, Mo., 10 S.W.2d 651, 655; United States for Use
and Benefit of Farwell, Ozmun, Kirk & Co. v. Shea-Adam-
son Co., D.C.Minn., 21 F.Supp. 831, 837. Or physical or
mental toil, bodily or intellectual exertion. Christie v.
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LABORER
Commercial Casualty Ins. Co., 6 Cal.App.2d 710, 45 P.2d
263, 266; Crook v. Commonwealth, 147 Va. 593, 136 S.E.
565, 567, 50 A.L.R. 1043; United States, Fidelity & Guaran-
ty Co., for Use of Reedy, v. American Surety Co., of New
"York, D.C.Pa., 25 F.Supp. 280, 284. This broad construc-
tion has been adopted in construing statutes limiting hours
of labor. Commonwealth v. John T. Connor Co., 222 Mass.
299, 110 N.E. 301, 302, L.R.A.1916B, 1236; Ex parte Steiner,
68 Or. 218, 137 P. 204, 206.
As used in mechanic's lien law, an architect performs
"labor", Cain v. Rea, 159 Va. 446, 166 S.E. 478, 480, 85 A.
L.R. 945; Paterson v. Condos, 55 Nev. 134, 28 P.2d 499,
501; "labor" implies personal service, Hampton v. Incor-
porated Village of Freeport, 244 App.Div. 815, 279 N.Y.S.
776; and "labor" is not confined to physical or manual
labor, Diffenbach v. H. H. Mahler Co., 167 Okl. 518, 30 P.
2d 907, 908.
As used in statute concerning labor for contractors or
subcontractors or in contractor's bond, the word con-
templates an architect or other skilled man who superin-
tends work, U. S. for Use and Benefit of Farwell, Ozmun,
"Kirk & Co. v. Shea-Adamson Co., D.C.Minn., 21 F.Supp.
831, 837; claim for work done by man and team in high-
way construction, State ex rel. and to Use of Winebrenner
v. Detroit Fidelity & Surety Co., 326 Mo. 684, 32 S.W.2d
572, 575, 71 A.L.R. 1131; manual labor, United States Fi-
delity & Guaranty Co. v. Ed Hockaday & Co., 182 Okl. 73,
76 P.2d 911, 912; mental effort, United States Fidelity &
Guaranty Co., for Use of Reedy, v. American Surety Co.,
-of New York, D.C.Pa., 25 F.Supp. 280, 284; repair work on
automobiles and trucks used by highway contractors, Em-
ployers' Casualty Co. v. Rockwall County, 120 Tex. 441,
35 S.W.2d 690, 693; transportation of materials, State for
Use of Pennsylvania R. Co. v. IEtna Casualty & Surety Co.,
4 W.W.Harr. 158, 145 A. 172, 173; work of superintendent
as well as labor in ordinary sense, Look v. City of Spring-
field, 292 Mass. 515, 198 N.E. 661, 662.
As used in statute concerning statement of claim by any
person who has performed work, or rendered personal
service on levy of attachment not founded on "labor"
claim, the word includes services by salesmen, clerks, and
persons who performed personal services for others, and
not merely bodily exertion or physical toil. Levitt v.
Faber, 20 Cal.App.2d, Supp., 758, 64 P.2d 498, 500.
"Labor" within arbitration statute applies where physi-
cal force or brawn and muscle constitute the principal ef-
fort to produce a given result. Levy v. Superior Court in
and for Los Angeles County, 15 Ca1.2d 692, 104 P.2d 770,
773, 129 A.L.R. 956.
"Labor," in connection with reference in Workmen's
Compensation Act to manual or mechanical work, must
mean actual physical contact with dangerous instruments
and means used in carrying on business. Russell Flour &
Feed Co. v. Walker, 148 Okl. 164, 298 P. 291, 293..
"Labor," "business," and "work" are not synonyms. La-
bor may be business, but it is not necessarily so; and
`business is not always labor. Labor implies toil; exertion
-producing weariness; manual exertion of a toilsome na-
ture.
Common labor, within the meaning of Sunday laws, is
not to be restricted to manual or physical labor, but in-
cludes the transaction of ordinary business, trading, and
the execution of notes and other instruments. Bryan v.
Watson, 127 Ind. 42, 26 N.E. 666, 11 L.R.A. 63; Link v.
Clemmens, 7 Blackf., Ind., 480; Cincinnati v. Rice, 15 Ohio
225; Eitel v. State, 33 Ind. 201. But compare Bloom v.
Richards, 2 Ohio St. 387; Horacek v. Keebler, 5 Neb. 355;
State v. Somberg, 113 Neb. 761, 204 N.W. 788, 790. It does
not include the transaction of judicial business or ,the acts
of public officers. State v. Thomas, 61 Ohio St. 444, 56 N.E.
276, 48 L.R.A. 459; Hastings v. Columbus, 42 Ohio St. 585.
"Common labor" is unskilled manual labor, and is an
"employment" within Workmen's Compensation Law.
Leitz v. Labadie Ice Co., 211 Mich. 565, 179 N.W. 291, 293.
See, also, Laborer.
LABOR A JURY. In old practice. To tamper
with a jury; to endeavor to influence them in their
-verdict, or their verdict generally.
LABOR CONDITIONS. The term "labor condi-
tions" in a contract authorizing temporary suspen-
sion by the contractor for "strikes, labor condi-
tions, and lockouts," refers to scarcity of labor
alone, and bears no relation to the cost of labor.
Robinson v. Solomon, 222 Mich. 618, 193 N.W. 209,
212. The term comprehends both wages and
hours. Bumpus v. Continental Baking Co., C.C.A.
Tenn., 124 F.2d 549, 552, 140 A.L.R. 1258.
LABOR DISPUTE. A controversy concerning
terms or conditions of employment. Minnesota
Council of State Emp., No. 19, v. American Federa-
tion of State, County and Municipal Emp., 220
Minn. 179, 19 N.W.2d 414, 419, 160 A.L.R. 533;
Sandoval v. Industrial Commission, 110 Colo. 108,
130 P.2d 930, 932, 935, 937; Dallas Fuel Co. v.
Horne, 230 Iowa 1148, 300 N.W. 303, 306. A con-
troversy concerning wages. N. L. R. B. v. In-
diana Desk Co., C.C.A.7, 149 F.2d 987, 990. A con-
troversy related to purposes of collective bargain-
ing. McKay v. Retail Automobile Salesmen's Lo-
cal Union No. 1067, 16 Ca1.2d 311, 106 P.2d 373,
380. A dispute between an employer and his em-
ployees about wages, hours, working conditions,
or who shall speak for employees. Donnelly Gar-
ment Co. v. International Ladies' Garment Work-
ers' Union, D.C.Mo., 20 F.Supp. 767.
LABOR ORGANIZATION. A combination of
workmen usually, but not necessarily, of the same
trade or of several allied trades, for securing by
united action, the most favorable conditions as
regards wages, hours of labor, etc., for its mem-
bers. Keith Theatre v. Vachon, 134 Me. 392, 187 A.
692, 694; People v. Distributors Division, Smoked
Fish Workers Union, Local No. 20377, 169 Misc.
255, 7 N.Y.S.2d 185, 187.
LABOR SEPARATION. Quits, discharges and
lay-offs. International Ass'n of Machinists v.
State ex rel. Watson, 153 Fla. 672, 15 So.2d 485,
490.
LABOR UNION. An organization, combination
or association of employees or workmen. People
v. Distributors Division, Smoked Fish Workers
Union, Local No. 20377, 169 Misc. 255, 7 N.Y.S.2d
185, 187; Fertel v. Rosenzweig, Sup., 28 N.Y.S.2d
6, 9; for securing favorable wages, improved la-
bor conditions, better hours of labor, etc., and
righting grievances against employers. Com. v.
Shipherd, 157 Pa.Super. 27, 41 A.2d 429, 431; Cole
v. Commonwealth, 169 Va. 868, 193 S.E. 517, 519;
People v. Graf, 261 App.Div. 188, 24 N.Y.S.2d 683,
685.
LABORARIIS. An ancient writ against persons
who refused to serve and do labor, and who had
no means of living; or against such as, having
served in the winter, refused to serve in the sum-
mer. Reg. Orig. 189.
LABORER. The word ordinarily denotes one who
subsists by physical labor. American Surety Co.
of New York v. Stuart, Tex.Civ.App., 151 S.W.2d
886, 888. One who, as a means of livelihood, per-
forms work and labor for another. Blanchard v.
Railway Co., 87 Me. 241, 32 A. 890; Weymouth v.
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LABORER
Sanborn, 43 N.H. 171, 80 Am.Dec. 144; Missouri
State Highway Commission to Use of Onstad v.
Coopers' Const. Service Co., Mo.App., 268 S.W. 701,
702. One who furnishes his personal service, of a
grade commonly performed by persons working
by the day. Shefts Supply v. Brady, 170 Okl. 590,
41 P.2d 820, 822. A person without particular
training employed at manual labor under a con-
tract terminable at will. Morley v. McCaskey, 134
Oki. 50, 270 P. 1107, 1110; Devney v. City of Bos-
ton, 223 Mass. 270, 111 N.E. 788, 789; Cavanaugh
v. Art Hardware & Mfg. Co., 124 Wash. 243, 214
P. 152, 154.
For "Farm Laborer," see that title.
A workman is a "laborer" within Longshoremen's Com-
pensation Act, 33 U.S.C.A. §§ 901-950. Balaske v. Bassett,
D.C.Mo., 35 F.Supp. 315, 316; and within Bankruptcy
Act § 17 (11 U.S.C.A. § 35). In re Fabbri, D.C.N.Y., 8 F.
Supp. 35, 36.
As used in laborers' or mechanics' lien law, the term
means mechanics or skilled laborers, who perform work
or labor under a verbal or written contract. Home Build-
ing & Loan Ass'n v. White, 141 Okl. 240, 284 P. 889,
890; one who performs manual labor, but includes em-
ployee whose regular duties include actual manual labor,
although he performs other services, Aronoff v. Woodard,
47 Ga.App. 725, 171 S.E. 404, 405; all who work with their
hands, crude implements, or teams in work demanding that
character of service, Kansas City Southern Ry. Co. v. Wal-
lace, 38 Okl. 233, 132 P. 908, 911, 46 L.R.A.,N.S., 112.
Laborer under garnishment statute is unskilled laborer,
Groves & Rosenblath v. Atkins, 160 La. 489, 107 So. 316,
317, but see Lames v. Armstron g . 162 Iowa 327, 144 N.W. 1,
2, 49 L.R.A.,N.S., 691, Ann.Cas.1916B, 511.
A laborer, as the word is used in the Pennsylvania act
if 1872, giving a certain preference of lien, is one who per-
forms, with his own hands, the contract which he makes
with his employer. Appeal of Wentroth, 82 Pa. 469.
In English statutes, this term is generally understood to
designate a servant employed in husbandry or manufac-
tures, and not dwelling in the home of his employer.
Wharton; Mozley & Whiteley.
See, also, Labor.
LABORERS, STATUTES OF. In English law.
These are the statutes 23 Edw. III., 12 Rich. II, 5
Eliz. c. 4, and 26 & 27 Vict. c. 125, making various
regulations as to laborers, servants, apprentices,
etc.
LAC, LAK. In Indian computation, 100,000. The
value of a lac of rupees is about £10,000 sterling.
Wharton.
LACE. A measure of land equal to one pole. This
term is widely used in Cornwall.
LACERTA. In old English law. A fathom. Co.
Litt. 4b.
LACEY ACT. An act of congress, May 25, 1900,
under which the states may enforce game laws
against animals, birds, etc., imported from other
states or countries. See Game Laws.
LACHES is principally a question of inequity of
permitting claim to be enforced. Crowder v. Ter-
horst, 107 Ind.App. 288, 21 N.E.2d 141, 146; Brady
v. Garrett, Tex.Civ.App., 66 S.W.2d 502, 504; Nor-
man v. Boyer, 111 Colo. 531, 143 P.2d 1017, 1018;
an inequity founded on some change in the condi-
tion or relations of the property or parties. Wal-
lace v. Fiske, C.C.A.Mo., 80 F.2d 897, 912; Geiss v.
Trinity Lutheran Church Congregation, 119 Neb.
745, 230 N.W. 658, 661; State v. Platte Valley Pub-
lic Power and Irrigation Dist., 143 Neb. 661, 10
N.W.2d 631, 634.
Laches is, or is based on, delay attended by or inducing
change of condition or relation. Jones v. McNabb, 184
Okl. 9, 84 P.2d 429, 430; Shea v. Shea, 269 Mass. 454, 4 N.
E.2d 1015, 1018; Collier v. Caraway, Tex.Civ.App., 140 S.
W.2d 910, 914, Poulin v. Poulin, 60 R.I. 264, 197 A. 878,
881; delay for such time as to constitute acquiescence,
Mary Jane Stevens Co. v. First Nat. Bldg. Co., 89 Utah
456, 57 P.2d 1099, 1125.; delay such as to preclude court
from arriving at a safe conclusion as to truth, Grant v.
Hart, 192 Ga. 153, 14 S.E.2d 860, 869, 870; delay that makes
it inequitable to accord relief sought, Thorpe v. Wm.
Filene's Sons Co., D.C.Mass., 40 F.2d 269; Cartmell v.
Nigro, 19 Del.Ch. 231, 165 A. 625, 626; delay that warrants
presumption that party has waived his right, Harrison v.
Miller, 124 W.Va. 550, 21 S.E.2d 674, 679; Bank of Marlin-
ton v. McLaughlin, 123 W.Va. 608, 17 S.E.2d 213, 218; de-
lay that works or results in disadvantage, injury, injustice,
detriment or prejudice. Marsh v. Marsh, Sup., 49 N.Y.S.
2d 759, 761; Anderson v. Wyoming Development Co., 6C
Wyo. 417, 154 P.2d 318, 345; Sample v. Romine, 193 Miss.
706, 8 So.2d 257, 263; failure to prosecute claim within
reasonable and proper period, Burton v. Ryan, 88 Ind.App.
549, 165 N.E. 260, 261; implied waiver from knowledge of
existing conditions and acquiescence in them, Jacksonville
Public Service Corporation v. Profile Cotton Mills, 236
Ala. 4, 180 So. 583, 586; City of Lafayette v. Keen, 113
Ind.App. 552, 48 N.E.2d 63, 70; Pehlert v. Neff, 152 Pa.
Super. 84, 31 A.2d 446, 448; inexcusable delay in assertion
of rights, Winget v. Rockwood, C.C.A.Minn., 69 F.2d 326,
332, Lipsitz v. Parr, 164 Md. 222, 164 A. 743. 745; Johnson
v. Umsted, C.C.A.Ark., 64 F.2d 316, 323; lack of diligence
on part of plaintiff to injury, prejudice, or disadvantage of
defendant. Rome Grader & Machinery Corporation v. J. D.
Adams Mfg. Co., C.C.A.Ind., 135 F.2d 617, 619; Lamar v.
Rivers, 235 Ala. 130, 178 So. 16, 18; Croyle v. Croyle, 184
Md. 126, 40 A.2d 374, 379, 380; lapse of time and ac-
quiescence in alleged wrong, In re Associated Gas & Elec.
Co., D.C.N.Y., 61 F.Supp. 11, 43; lapse of time together
with change in condition or relation of parties, McKnight
v. Basilides, 19 Wash.2d 391, 143 P.2d 307, 312; lapse of
time together with prejudice or lapse such that prejudice
will be presumed, Lindberg v. Linder, 133 Cal.App. 213, 23
P.2d 842; neglect for unreasonable and unexplained length
of time under circumstances permitting diligence to do
what could have or should have been done, Engel v.
Mathley, 113 Ind.App. 458, 48 N.E.2d 463, 467; Columbia
Theological Seminary v. Arnette, 168 S.C. 272, 167 S.E.
465, 468; Prudential Insurance Co. v. Sailors, 69 Ga.App.
628, 26 S.E.2d 557, 561; neglect for unreasonable length of
time to do what should have been done, Bell v. Mackey, 191
S.C. 105, 3 S.E.2d 816, 824, 825, 830; Triangle Oil Co. v.
City of New Orleans, La.App., 5 So.2d 558, 561, 562; neg-
lect or omission for unexplained and unreasonable length
of time, Pennington Engineering Co. v. Houde Engineer-
ing Corporation, D.C.N.Y., 43 F.Supp. 698, 705, 706; State
ex rel. Phillips v. Ford, 116 Mont. 190, 151 P.2d 171, 176;
neglect or omission to assert right as, taken in conjunction
with lapse of time and other circumstances, causes preju-
dice to adverse party, McInnes v. McInnes, 163 Md. 303,
163 A. 85, 89; Hynes v. Silver Prince Min. Co., 86 Mont.
10, 281 P. 548; People ex rel. Mulvey v. City of Chicago,
292 Ill.App. 589, 12 N.E.2d 13, 16; neglect or omission to
do what one should do as warrants presumption that one
has abandoned right or claim, Shirley v. Van Every, 159
Va. 762, 167 S.E. 345, 350; Eldridge v. Idaho State Peni-
tentiary, 54 Idaho 213, 30 P.2d 781, 784; negligence by
which another has been led into changing his condition
with respect to property or right, Heyburn Bldg. Co.
Highland Motor Transfer Co., 245 Ky. 514, 53 S.W.2d 944,
946; negligence of complainant, good faith of defendant,
and prejudice occasioned, or likelihood thereof, to defend-
ant. Crandol v. Garrison, 115 N.J.Eq. 11, 169 A. 507, 511;
negligence or omission seasonably to assert a right, David-
son v. Grady, C.C.A.Fla., 105 F.2d 405, 408; Sine11 v. Town
of Sharon, 206 Minn. 437, 289 N.W. 44, 45, 46; omission of
something which a party might do and might reasonably
be expected to do towards vindication or enforcement of
his rights. Wynne v. Conrad, 220 N.C. 355, 17 S.E.2d 514,
518; McCauley v. Northern Texas Traction Co., Tex.Civ.
App., 21 S.W.2d 309, 313; omission to do what law requires
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L)ESIO
to protect one's rights under circumstances misleading or
prejudicing adverse party, School Dist. No. 14, Fractional,
Niles Tp. and Buchanan Tp. v. School Dist. No. 1, Buch-
anan Tp., 266 Mich. 479, 254 N.W. 174; unconscionable,
undue, unexcused, unexplained or unreasonable delay in
assertion of right, Loveland Camp No. 83, W. 0. W., v.
Woodmen Bldg. & Benev. Ass'n, 108 Colo. 297, 116 P.2d 195,
199; Calkin v. Hudson, 156 Kan. 308, 133 P.2d 177, 184, 185;
Sample v. Natalby, 120 Fla. 161, 162 So. 493; City of Pa-
ducah v. Gillispie, 273 Ky. 101, 115 S.W.2d 574, 575; un-
reasonable or unexplained delay in asserting right which
works disadvantage to another, Kennedy v. Denny, 237 Ky.
649, 36 S.W.2d 41, 42; Caswell v. Bathrick, 53 R.I. 114,
164 A. 505, 507; want of activity or diligence in making a
claim or moving for the enforcement of a right, Wissler v.
Craig, 80 Va. 30; Babb v. Sullivan, 43 S.C. 436, 21 S.E.
277; Graff v. Portland, etc., Co., 12 Colo.App. 106, 54 P.
854; In re Wallace's Estate, 299 Pa. 333, 149 A. 473, 475.
Conduct of party which has placed other party in a
situation where his rights will be imperiled and his de-
fenses embarrassed is a basis of laches. State v. Aber-
nathy, 159 Tenn. 175, 17 S.W.2d 17, 19.
Knowledge, unreasonable delay, and change of position
are _essential elements. Shanik v. White Sewing Mach.
Corporation, 25 Del.Ch. 371, 19 A.2d 831, 837.
Laches requires an element of estoppel or neglect which
has operated to prejudice of defendant. Scarbrough v.
Pickens, 26 Tenn.App. 213, 170 S.W.2d 585, 588; Mattison-
Greenlee Service Corporation v. Culhane, D.C.Ill., 20 F.
Supp. 882, 884.
"Limitations" and "laches" are not synonymous; but
"limitations" signifies the fixed statutory period within
which an action may be brought for some act done to pre-
serve a right, while "laches" signifies delay independent
of statute. In re Van Tassell's Will, 119 Misc. 478, 196
N.Y.S. 491, 494.
LACHES, ESTOPPEL BY. A failure to do some-
thing which should be done or to claim or enforce
a right at a proper time. Hutchinson v. Kenney,
C.C.A.N.C., 27 F.2d 254, 256. A neglect to do some-
thing which one should do, or to seek to enforce a
right at a proper time. Jett v. Jett, 171 Ky. 548,
188 S.W. 669, 672. A species of "equitable estop-
pel" or "estoppel by matter in pais." See titles
"Equitable Estoppel" and "In Pais, Estoppel In".
An element of the doctrine is that the defendant's al-
leged change of position for the worse must have been in-
duced by or resulted from the conduct, misrepresentation,
or silence of the plaintiff. Croyle v. Croyle, 184 Md. 126,
40 A.2d 374, 379. Delay in enforcement of rights until con-
dition of other party has become so changed that he cannot
be restored to his former state. Wisdom's Adm'r v. Sims,
284 Ky. 258, 144 S.W.2d 232, 235, 236; Oak Lawn Cemetery
of Baltimore County v. Baltimore County Com'rs, 174 Md.
356, 198 A. 600, 605, 115 A.L.R. 1478. Essence of "laches"
is estoppel. Burke v. Gunther, 128 N.J.Eq. 565, 17 A.2d
481, 487. Laches is a species of estoppel. Bankers' Trust
Co. v. Rood, 211 Iowa 289, 233 N.W. 794, 802, 73 A.L.R.
1421; Stewart v. Pelt, 198 Ark. 776, 131 S.W.2d 644, 648.
To create "estoppel by laches" party sought to be estopped
must with knowledge of transaction have done something
to mislead other party to his prejudice. Wisdom's Adm'r
v. Sims, 144 S.W.2d 232, 235, 236, 284 Ky. 258.
LACK OF JURISDICTION. The phrase may
mean lack of power to act in a particular manner
or to give certain kinds of relief. In re Rowe's
Estate, 66 Cal.App.2d 594, 152 P.2d 765, 770. It
may consist in court's total want of power to act
at all, or lack of power to act in particular case
because conditions essential to exercise of juris-
diction have not been complied with. State v.
Williams, 209 Wis. 541, 245 N.W. 663, 665.
LACTA. L. Lat. In old English law. Defect in
the weight of money; lack of weight. This word
and the verb "lactare" are used in an assise or
statute of the sixth year of King John. Spelman.
LACUNA. In old records. A ditch or dyke; a
furrow for a drain; a gap or blank in writing.
LACUS. In old English law. Allay or alloy of
silver with base metal. Fleta, lib. 1, c. 22, § 6.
In the Civil law. A lake; a receptacle of water
which is never dry. Dig. 43, 14, 1, 3.
LADA. In old English law. A court of justice;
a lade or lath. Cowell.
In Saxon law. A purgation, or mode of trial by
which one purged himself of an accusation; as
by oath or ordeal. Spelman. A water-course; a
trench or canal for draining marshy grounds. In
old English, a lade or load. Spelman.
LADE, or LODE. The mouth of a river.
LADEN IN BULK. A term of maritime law, ap-
plied to a vessel which is freighted with a cargo
which is neither in casks, boxes, bales, nor cases,
but lies loose in the hold, being defended from
wet or moisture by a number of mats and a quan-
tity of dunnage. Cargoes of corn, salt, etc., are
usually so shipped.
LADING, BILL OF. See Bill.
LADY. In English law. The title belonging to
the wife of a peer, and (by courtesy) the wife of
a baronet or knight, and also to any woman, mar-
ried or sole, whose father was a nobleman of a
rank not lower than that of earl.
LADY-COURT. In English law. The court of a
lady of the manor.
LADY DAY. The 25th of March, the feast of the
Annunciation of the Blessed Virgin Mary. In
parts of Ireland, however, they so designate the
15th of August, the festival of the Assumption of
the Virgin.
LADY'S FRIEND. The style of an officer of the
English house of commons, whose duty was to se-
cure a suitable provision for the wife, when her
husband sought a divorce by special act of par-
liament. The act of 1857 abolished parliamentary
divorces, and this office with them.
LIEN (Anglo-Saxon). A loan. See Beneficium.
LIENLAND. Land held of a superior whether
much or little. 1 Poll. & Maitl. 38.
Land given to the lessee and to two or three
successive heirs of his; synonymous with loan
land. This species of tenure seems to have been
replaced by that of holding by book or bocland.
See Maitl. Doomsday Book and Beyond 318. See
Folcland.
LIESA MAJESTAS. Lat. Leze-majesty, or in-
jured majesty; high treason. It is a phrase tak-
en from the civil law, and anciently meant any
offense against the king's person or dignity.
LAESIO ULTRA DIMIDIUM VEL ENORMIS. In
Roman law. The injury sustained by one of the
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LIESIONE
parties to an onerous contract when he had been
overreached by the other to the extent of more
than one-half of the value of the subject-matter;
e. g., when a vendor had not received half the
value of property sold, or the purchaser had paid
more than double value. Colq. Rom. Civil Law,
§ 2094.
LIESIONE FIDEL, SUITS PRO. Suits in the ec-
clesiastical courts for spiritual offenses against
conscience, for non-payment of debts, or breaches
of civil contracts. This attempt to turn the ec-
clesiastical courts into courts of equity was check-
ed by the constitutions of Clarendon, A. D. 1164.
3 Bl.Comm. 52.
LIESIWERP. A thing surrendered into the hands
or power of another; a thing given or delivered.
Spelman.
LIET. In old English law. One of a class between
servile and free. Palgrave, i. 354.
LIETARE JERUSALEM. Easter offerings, so call-
ed from these words in the hymn of the day. They
are also denominated "quadrage-simalia." Whar-
ton.
L1ETHE, or LATHE. A division or district pecu-
liar to the county of Kent. Spelman.
LAFORDSWIC. In Saxon law. A betraying of
one's lord or master.
LAGA. L. Lat., from the Saxon "lag." Law; a
law.
LAGAN. See Ligan.
LAGE. Laws in early Saxon times; e. g., "Dane-
lage," "Mercen-Lage," and "West Saxon Lage"
(see those titles).
LAGE DAY. In old English law. A law day; a
time of open court; the day of the county court;
a juridical day.
LAGE-MAN. A lawful man; a good and lawful
man. A juror. Cowell.
LAGENA. L. Lat. In old English law. A meas-
ure of ale. Fleta, lib. 2, c. 11. Said to consist of
six sextaries. Cowell.
LAGHDAY or LARDY. A day of open court; a
day of the county court. Cowell; Toml.
LAGU. In old English law. Law; also used to
express the territory or district in which a particu-
lar law was in force, as Dena lagu, Mercna lagu,
etc. See Lage.
LAHLSLIT. A breach of law. Cowell. A mulct
for an offense, viz., twelve "ores."
LAHMAN, or LAGEMANNUS. An old word for
a lawyer. Domesday, I. 189.
LAIA. A roadway in a wood. Mon. Angl. t. 1, p.
483.
LAICUS. Lat. A layman. One who is not in holy
orders, or not engaged in the ministry of religion.
LAIRWITE, or LAIRESITE. A fine for adultery
or fornication, anciently paid to the lords of some
manors. 4 Inst. 206.
LAIS GENTS. L. Fr. Lay people; a jury.
LAITY. In English law. Those persons who do
not make a part of the clergy.
They are divided into three states : (1) Civil, including
all the nation, except the clergy, the army, and navy, and
subdivided, into the nobility and the commonalty; (2) mil-
itary; (3) maritime, consisting of the navy. Wharton.
LAIZ, LEEZ (0. Fr.). A legate. Kelh.
LAK, See Lac.
LAKE. A considerable body of standing water
in a depression of land or expanded part of a
river; an inland body of water or naturally en-
closed basin serving to drain surrounding coun-
try; or a body of water of 'considerable size sur-
rounded by land; a widened portion of a river or
a lagoon. Wood v. Maitland, 169 Misc. 484, 8 N.
Y.S.2d 146, 150.
Body of water, more or less, stagnant, in which the
water is supplied from drainage. Amerada Petroleum Cor-
poration v. State Mineral Board, 203 La. 473, 14 So.2d 61,
68, 69. An inland body of water of considerable size oc-
cupying natural basin or depression in earth's surface be-
low ordinary drainage level of region. Keener v. Sharp,
Mo.App., 95 S.W.2d 648, 652. A large body of water, con-
tained in a depression of the earth's surface, and supplied
from the drainage of a more or less extended area. Web-
ster. See Jones v. Lee, 77 Mich. 35, 43 N.W. 855; Ne-pee-
nauk Club v. Wilson, 96 Wis. 290, 71 N.W. 661.
The fact that there is a current from a higher to a
lower level does not make that a river which would other-
wise be a lake; and the fact that a river swells out into
broad, pond-like sheets, with a current, does not make that
a lake which would otherwise be a river. State v. Gilman-
ton, 14 N.H. 477.
LAMANEUR. Fr. In French marine law. A pi-
lot. Ord. Mar. liv. 4, tit. 3.
LAMB. A sheep, ram or ewe under the age of one
year. 4 Car. & P. 216.
LAMBARD'S ARCHAION: A discourse upon the
high court of justice in England, by William Lam-
bard, published in 1635. Marv. Leg. Bibl.
LAMBARD'S ARCHAIONOMIA. A work printed
in 1568, containing the Anglo-Saxon laws, those of
William the Conqueror, and of Henry I.
LAMBARD'S EIRENARCHA. A work upon the
office of a justice of the peace, which, having gone
through two editions, one in 1579, the other in
1581, was reprinted in English in 1599.
LAMBETH DEGREE. In English law. A degree
conferred by the Archbishop of Canterbury, in
prejudice of the universities. 3 Steph.Comm. 65;
1 Bl.Comm. 381.
LAME DUCK. A cant term on the stock exchange
for a person unable to meet his engagements.
LAMMAS DAY. The 1st of August. It is one of
the Scotch quarter days, and is what is called a
"conventional term."
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LAND
LAMMAS LANDS. Lands over which there is a
right of pasturage by persons other than the own-
er from about Lammas, or reaping time, until
sowing time. Wharton.
LANA. Lat. In the civil law. Wool. See Dig.
32, 60, 70, 88.
LANCASTER. A county of England, erected into
a county palatine in the reign of Edward III., but
now vested in the crown.
LANCETI. In feudal law. Vassals who were
obliged to work for their lord one day in the week,
from Michaelmas to autumn, either with fork,
spade, or flail, at the lord's option. Spelman.
LAND, in the most general sense, comprehends
any ground, soil, or earth whatsoever; as fields,
meadows, pastures, woods, moors, waters, marsh-
es, furies, and heath. Co. Litt. 4a; Reynard v.
City of Caldwell, 55 Idaho 342, 42 P.2d 292, 296;
Holmes v. U. S., C.C.A.Okl., 53 F.2d 960, 963.
In its more limited sense, "land" denotes the
quantity and character of the interest or estate
which the tenant may own in land. Holmes v.
U. S., C.C.A.Okl., 53 F.2d 960, 963. "Land" may
include any estate or interest in lands, either legal
or equitable, easements, incorporeal heredita-
ments. Reynard v. City of Caldwell, 55 Idaho 342,
42 P.2d 292, 297; Jones v. Magruder, D.C.Md., 42
F.Supp. 193, 198; Lynch v. Cunningham, 131 Cal.
App. 164, 21 P.2d 154; Petition of Burnquist, 220
Minn. 48, 19 N.W.2d 394, 401; Cuff v. Koslosky,
165 Okl. 135, 25 P.2d 290. The land is one thing,
and the estate in land is another thing, for an
estate in land is a time in land or land for a time.
Plowd. 555.
Technically land signifies everything which may
be holden; and the term is defined as compre-
hending all things of a permanent and substantial
nature, and even of an unsubstantial, provided
they be permanent. Reynard v. City of Caldwell,
55 Idaho 342, 42 P.2d 292, 296.
Ordinarily, the term is used as descriptive of the
subject of ownership and not the ownership. Sou-
thern Pac. Co. v. Riverside County, 35 Cal.App.2d
380, 95 P.2d 688, 692.
"Land" includes not only the soil or earth, but also
things of a permanent nature affixed thereto or found
therein, whether by nature, as water, trees, grass, herbage,
other natural or perennial products, growing crops or
trees, mineral under the surface, or by the hand of man, as
buildings, fixtures, fences, bridges, as well as works con-
structed for use of water, such as dikes, canals, etc.
Reynard v. City of Caldwell, 55 Idaho 342, 42 P.2d 292, 296;
City of Newport News v. Warwick County, 159 Va. 571,
166 S.E. 570, 580; Morris Plan Bank of Fort Worth v.
Ogden, Tex.Civ.App., 144 S.W.2d 998, 1002; 2 Bl.Comm. 16,
17; Sox v. Miracle, 35 N.D. 458, 160 N.W. 716, 719; Wynn
v. Margate City, 9 N.J.Misc. 1324, 157 A. 565, 566. It em-
braces not only the surface of the earth, but everything
under or over it. Gas Products Co. v. Rankin, 63 Mont.
372, 207 P. 993, 997, 24 A.L.R. 294; Garnsey Coal Co. v.
Mudd, C.C.A.Ala., 281 F. 183, 184; Jones v. Vermont As-
bestos Corporation, 108 Vt. 79. 182 A. 291, 303; Holloway's
Unknown Heirs v. Whatley, Tex.Civ.App., 104 S.W.2d 646,
648. It has in its legal signification an indefinite extent
upward and downward. Reynard v. City of Caldwell, 55
Idaho 342, 42 P.2d 292, 296; Bituminous Casualty Corpora-
tion v. Walsh & Wells, Mo.App., 170 S.W.2d 117, 121. It
may include a franchise connected with land. Delaney v.
Lowery, 25 Ca1.2d 561, 154 P.2d 674, 679.
Land is or includes the solid material of the earth, what-
ever may be the ingredients of which it is composed,
whether soil, rock, or other substance. Civ.Code Cal. §
659; Reynard v. City of Caldwell, 55 Idaho 342, 42 P.2d 292,
296.
Philosophically, it seems more correct to say that the
word "land" means, in law, as in the vernacular, the soil,
or portion of the earth's crust; and to explain or justify
such expressions as that "whoever owns the land owns
the buildings above and the minerals below," upon the
view, not that these are within the extension of the term
"land," but that they are so connected with it that by
rules of law they pass by a conveyance of the land. This
view makes "land," as a term, narrower in signification
than "realty ;" though it would allow an instrument speak-
ing of land to operate co-extensively with one granting
realty or real property by either of those terms. But many
of the authorities use the expression "land" as including
these incidents to the soil. Abbott.
The term "land" may be used interchangeably with
"property ;" it may include anything that may be classed
as real estate or real property. Reynard v. City of Cald-
well, 55 Idaho 342, 42 P.2d 292, 297.
The term "lands" designates all real estate. Enzor v.
State, 167 So. 336, 338, 27 Ala.App. 60.
The word "lands" is ordinarily synonymous with "real
estate" or "real property". Lincoln Nat. Bank & Trust
Co. of Fort Wayne v. Nathan, 215 Ind. 178, 19 N.E.2d 243.
247; Southern Pac. Co. v. Riverside County, 35 Cal.App.2d
380, 95 P.2d 688, 692.
See, also, Lands.
Accommodation lands. See Accommodation
Lands.
Bounty lands. See Bounty.
Certificate lands. See Certificate Lands.
Crown lands. See Crown Lands.
Demesne lands. See Demesne.
Donation lands. See Donation Lands.
Fabric lands. See Fabric Lands.
Farm land. See Farm Land.
General land office. See General Land Office.
Land patent. See Patent.
Mineral lands. See Mineral Lands.
Place lands. See Place Lands.
Public lands. See Public Lands.
School lands. See School.
Seated land. See Seated Land.
Swamp and overflowed lands. See Swamp and
Overflowed Lands.
Tide lands. See Tide.
Unseated land. See Unseated Land.
LAND CERTIFICATE. An obligation of govern-
ment entitling owner to secure designated quan-
tity of land by following the requirements of law.
State v. Balli, Tex.Civ.App., 173 S.W.2d 522, 538.
Upon the registration of freehold land under the English
land transfer act, 1875, a certificate is given to the reg-
istered r-onrietor. and similarly upon every transfer of
registered land. This registration supersedes the necessity
of any further registration in the register counties. Sweet.
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It contains a description of the land as it appears on the
register and the name and address of the proprietor, and
is prima facie evidence of the truth of the matters therein
set forth.
LAND COP. The sale of land which was evi-
denced in early English law by the transfer of a
rod or festuca (q. v.) as a s y mbol of possession
which was handed by the seller to the reeve and
by the reeve to the purchaser. The conveyance
was made in court, it is supposed, for securing
better evidence of it, and barring the claims of ex-
pectant heirs; Maitl. Domesd. B. 323.
LAND COURT. In American law. A court form-
erly existing in St. Louis, Mo., having a limited ter-
ritorial jurisdiction over actions concerning real
property, and suits for dower, partition, etc.
LAND DAMAGES. See Damages.
LAND DEPARTMENT, That office of the United
States government which has jurisdiction and
charge of the public lands, including the secretary
of the interior and the commissioner of the gen-
eral land office and their subordinate officers, and
being in effect the department of the interior con-
sidered with reference to its powers and duties
concerning the public lands. See U. S. v. Winona
& St. P. R. Co., Minn., 67 F. 956, 15 C.C.A. 96;
Northern Pac. R. Co. v. Barden, C.C.Mont., 46 F.
617.
LAND DISTRICT. A division of a state or terri-
tory, created by federal authority, in which is lo-
cated a United-States land office, with a "register
of the land office" and a "receiver of public mon-
ey," for the disposition of the public lands within
the district. See U. S. v. Smith, C.C.Or., 11 F. 491.
LAND GABEL. A tax or rent issuing out of land.
Spelman says it was originally a penny for every house.
This land-gabel, or land-gavel, in the register of Domes-
day, was a quit-rent for the site of a house, or the land
whereon it stood; the same with what we now call
"ground-rent." Wharton.
LAND GRANT. A donation of public lands to a
subordinate government, a corporation, or an in-
dividual; as, from the United States to a state, or
to a railroad company to aid in the construction
of its road.
LAND, LAW OF. See Law of the Land.
LAND OFFICES. Government offices, subordinate
to the general land office, established in various
parts of the United States, for the transaction of
local business relating to the survey, location, set-
tlement, pre-emption, and sale of the public lands.
See General Land Office.
LAND—POOR. The term generally means that a
man has a great deal of unproductive land, and
perhaps is obliged to borrow money to pay taxes;
but a mai "land-poor" may be largely responsible.
Matteson v. Blackmer, 46 Mich. 397, 9 N.W. 445.
LAND—REEVE. A person whose business it is to
overlook certain parts of a farm or estate; to at-
tend not only to the woods and hedge-timber, but
also to the state of the fences. gates, buildings,
private roads, driftways, and water-courses; and
likewise to the stocking of commons, and en-
croachments of every kind, as well as to prevent
or detect waste and spoil in general, whether by
the tenants or others; and to report the same to
the manager or land steward. Enc. Lond.
LAND REVENUES. This term denotes income
derived from crown lands in Great Britain.
These lands have been so largely granted away to sub-
jects that they are now contracted within very narrow
limits. The crown was so much improverished in this
manner by William III, that the stat. 1 Anne, c. 7, § 5, was
passed, which, with stat. 34 George III, c. 75, which
amends and continues it, makes void all grants or leases
from the ground of royal manors or other possessions con-
nected with land for a period exceeding thirty-one years,
or three lives. Long prior to this a Scottish stat. 1445, c.
41, had made necessary the consent of parliament in case
of the alienation of crown property. It is said that none of
these statutes have succeeded in checking the practice.
Early at the beginning of the reign of George III. the
hereditary crown revenues derived from escheats, manors
held in capite, estrays, fines, etc., were surrendered by
the king to the general funds, and in the place of them
he received a specified sum annually for the civil list.
LAND STEWARD. A person who overlooks or
has the management of a farm or estate.
LAND TAX. A tax laid upon the legal- or bene-
ficial owner of real property, and apportioned up-
on the assessed value of his land. A tax on land.
Texas Co. v. Moynier, 129 Cal.App. 738, 19 P.2d
280, 282.
LAND TENANT. The person actually in posses-
sion of land; otherwise styled the "terre-tenant."
LAND TITLES AND TRANSFER ACT. An Eng-
lish statute (38 & 39 Vict. c. 87) providing for the
establishment of a registry for titles to real prop-
erty, and making sundry provisions for the trans-
fer of lands and the recording of the evidences
thereof. It presents some analogies to the record-
ing laws of the American states.
LAND WAITER. In English law. An officer of
the customhouse, whose duty is, upon landing any
merchandise, to examine, taste, weigh, or measure
it, and to take an account thereof.
In some ports they also execute the office of a coast
waiter. They are likewise occasionally styled "searchers"
and are to attend and join with the patent searcher in the
execution of all cockets for the shipping of goods to be ex-
ported to foreign parts; and, in cases where drawbacks
on bounties are to be paid to the merchant on the exporta-
tion of any goods, they, as well as the patent searchers,
are to certify the shipping thereof on the debentures. Enc.
Lond.
LAND WARRANT. A warrant issued at the lo-
cal land offices of the United States to purchasers
of public lands, on the surrender of which at the
general land office at Washington, they receive a
conveyance from the general government.
The evidence which the state, on good consideration.
gives that the person therein named is entitled to the
quantity of land therein specified, the bounds and descrip-
tion of which the owner of the warrant may fix by entry
and survey, in the section of country set apart for its lo-
cation and satisfaction. Neal v. President, etc., of East
Tennessee College, 6 Yerg., Tenn., 205.
LANDA. An open field without wood; a lawnd
or lawn. Cowell; Blount.
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LANDAGENDE, LANDHLAFORD, or LANDRI-
CA. In Saxon law. A proprietor of land; lord
of the soil. Anc. Inst. Eng.
LANDBOC. In Saxon law. A charter or deed by
which lands or tenements were given or held.
Spelman; Cowell; 1 Reeve, Eng. Law, 10.
LANDCHEAP. In old English law. An ancient
customary fine, paid either in money or cattle, at
every alienation of land lying within some manor,
or within the liberty of some borough. Cowell;
Blount.
LANDDAG. A convention of the Dutch in New
Amsterdam. See 1 Fiske, Dutch & Quaker Colon-
ies 328.
LANDEA. In old English law. A ditch or trench
for conveying water from marshy grounds. Spel-
man.
LANDED. As used in a revenue act levying tolls
on goods, the clear meaning and purport is "sub-
stantially imported." L. R. 4 Ex. 260.
Consisting in real e§tate or land; having an es-
tate in land.
LANDED ESTATE OR PROPERTY. A colloquial
or popular phrase to denote real property. Landed
estate ordinarily means an interest in and pertain-
ing to lands. Police Jury of Parish of St. Mary v.
Harris, 10 La.Ann. 676.
In a tax law it "clearly embraces not only the land, but
all houses, fixtures, and improvements of every kind there-
on, and all machinery, neat cattle, horses, and mules,
when attached to and used on a plantation or farm." A.
person holding such an estate is termed a landed proprie-
tor. 10 La.Ann. 676. A devise of "all my landed proper-
ty" carries the fee; Fogg v. Clark, 1 N.H. 163; and so
does "my landed estate"; Bradstreet v. Clarke, 12 Wend.,
N.Y., 602.
Real estate in general, or sometimes, by local usage,
suburban or rural land, as distinguished from real estate
situated in a city. See Electric Co. v. Baltimore, 93 Md.
630, 49 A..655, 52 L.R.A. 772; Sindall v. Baltimore, 93 Md.
526, 49 A. 645.
LANDED ESTATES COURT. In English law.
Tribunals established by statute for the purpose
of disposing more promptly and easily than could
be done through the ordinary judicial machinery,
of incumbered real estate.
These courts were first established in Ireland by the act
of 11 & 12 Vict. c. 48, which being defective was followed
by 12 & 13 Vict. c. 77. The purpose of these was to enable
the owner, or a lessee for any less than 63 years unexpired,
of land subject to incumbrance, to apply to commissioners
who constituted a court of record to direct a sale. This
court was called the Incumbered Estates Court. A new
tribunal called the Landed Estates Court was created by
21 & 22 Vict. c. 72, which abolished the former court and
established a permanent tribunal.
LANDED PROPRIETOR. Any person having an
estate in lands whether highly improved or not.
Police Jury of Parish of St. Mary v. Harris, 10
La.Ann. 677.
LANDED SECURITIES. Mortgages or other in-
cumbrances affecting land. 3 Atk. 805, 808.
LANDEFRICUS. A landlord; a lord of the soil.
LANDEGANDMAN. Sax. In old English law.
A kind of customary tenant or inferior tenant of
a manor. Spelman.
LANDGRAVE. A name formerly given to those
who executed justice on behalf of the German
emperors, with regard to the internal policy of the
country. It was applied, by way of eminence, to
those sovereign princes of the empire who pos-
sessed by inheritance certain estates called "land-
gravates," of which they received investiture from
the emperor. Enc. Lond.
LANDHLAFORD. A proprietor of land; lord of
the soil. Anc. Inst. Eng.
LANDIMER. In old Scotch law. A measurer of
land. Skene.
LANDING. A place on a river or other navigable
water for lading and unlading goods, or for the
reception and delivery of passengers; the termi-
nus of a road on a river or other navigable water,
for the use of travelers, and the loading and un-
loading of goods. State v. Randall, 1 Strob., S.C.,
111, 47 Am.Dec. 548; State v. Louisiana Terminal
Co., 179 La. 671, 154 So. 731.
A place for loading or unloading boats, but not
a harbor for them. Hays v. Briggs, 74 Pa. 373.
A place laid out by a town as a common landing place
and used as such, but not designated as for the particular
benefit of the town, is a public landing place.
LANDIRECTA. In Saxon law. Services and du-
ties laid upon all that held land, including the
three obligations called "trinoda necessitas," (q.
v.;) quasi land rights. Cowell.
LANDLOCKED. An expression sometimes ap-
plied to a piece of land belonging to one person
and surrounded by land belonging to other per-
sons, so that it cannot be approached except over
their land. L. R. 13 Ch. Div. 798; Sweet.
LANDLORD. He of whom lands or tenements are
holden. He who, being the owner of an estate in
land, has leased it for a term of years, on a rent
reserved, to another person, called the "tenant."
Jackson v. Harsen, 7 Cow., N.Y., 326, 17 Am.Dec.
517; Becker v. Becker, 13 App.Div. 342, 43 N.Y.S.
17. Person letting land. Stone v. City of Los
Angeles, 114 Cal.App. 192, 299 P. 838, 841.
When the absolute property in or fee-simple of the land
belongs to a landlord, he is then sometimes denominated
the "ground landlord," in contradistinction to such a one
as is possessed only of a limited or particular interest in
land, and who himself holds under a superior landlord.
Brown.
"Landlord" is ordinarily referred to as owner of tene-
ment, to whom tenant pays rent, but is also defined as
master or proprietor of inn or of lodging or boarding
house. Murray v. Hagens, La.App., 143 So. 505, 506.
LANDLORD AND TENANT. A phrase used to
denote the familiar legal relation existing between
lessor and lessee of real estate.
The relation is contractual, Renshaw v. Sullivan, Tex.
Civ. App., 14 S.W.2d 919, 921; Story v. Lyon Realty Corpo-
ration, 308 Mass. 66, 30 N.E.2d 845, 847; Smith v. Royal
Ins. Co., C.C.A.Cal., 111 F.2d 667, 670, 671, 130 A.L.R. 812.
A lease (or agreement therefor) of lands for a term of
years, from year to year, for life, or at will creates the
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LANDLORD'S
relation. Dutton v. Dutton, 122 Kan. 640, 253 P. 553, 554;
Minneapolis Iron Store Co. v. Branum, 36 N.D. 355, 162 N.
W. 543, 545, L.R.A.1917E, 298. The relation exists where
one person occupies premises of another in subordination
to other's title or rights and with his permission or con-
sent. Gates v. Herberger, 202 Minn. 610, 279 N.W. 711,
712; Wood v. Homelvig, 68 N.D. 735, 283 N.W. 278, 282;
Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947, 954;
Coggins v. Gregoris, C.C.A.N.M., 97 F.2d 948, 950, 951.
There must be reversion in landlord, an estate in tenant,
transfer of possession and control of premises, and, gen-
erally, a contract, express or implied. Marden v. Radford,
229 Mo.App. 789, 84 S.W.2d 947, 954, 955; Coggins v.
Gregorio, C.C.A.N.M., 97 F.2d 948, 950, 951.
LANDLORD'S WARRANT. A distress warrant;
a warrant from a landlord to levy upon the ten-
ant's goods and chattels, and sell the same at pub-
lic sale, to compel payment of the rent or the ob-
servance of some other stipulation in the lease.
LANDMARK. A monument or erection set up on
the boundary line of two adjoining estates, to fix
such boundary. The removing of a landmark is
a wrong for which an action lies. Collins v. Brit-
tingham, 90 A. 420, 5 Boyce (Del.) 89.
LANDS. This term, the plural of "land," is said,
at common law, to be a word of less extensive
signification than either "tenements" or "heredit-
aments." But in some of the states it has been
provided by statute that it shall include both those
terms.
LANDS CLAUSES CONSOLIDATION ACTS. The
name given to certain English statutes, (8 Vict. c.
8, amended by 23 & 24 Vict. c. 106, and 32 & 33
Vict. c. 18,) the object of which was to provide
legislative clauses in a convenient form for incor-
poration by reference in future special acts of par-
liament for taking lands, with or without the con-
sent of their owners, for the promotion of rail-
ways, and other public undertakings. Mozley &
Whiteley.
LANDS, PUBLIC. See Public Lands.
LANDS, TENEMENTS, AND HEREDITAMENTS.
The technical and most comprehensive description
of real property, as "goods and chattels" is of per-
sonalty. Williams, Real Prop. 5.
The term refers to property in land. Denver Joint Stock
Land Bank of Denver v. Dixon, 57 Wyo. 523, 122 P.2d 842,
846, 140 A.L.R. 1270. Under ancient law, the words com-
prehended only freehold estate and did not apply to ease-
ments or other incorporeal hereditaments. Hester v.
Sawyers, 41 N.M. 497, 71 P.2d 646, 649, 112 A.L.R. 586.
LANDSLAGH. In Swedish law. A body of com-
mon law, compiled about the thirteenth century,
out of the particular customs of every province;
being analogous to the common law of England.
1 Bl.Comm. 66.
LANDWARD. In Scotch law. Rural. 7 Bell, App.
Cas. 2.
LANGEMAN. A lord of a manor. 1 Inst. 5.
LANGEMANNI. The lords of manors. 1 Co. Inst.
5.
LANGEOLUM. An undergarment made of wool,
formerly worn by the monks, which reached to
their knees. Mon. Angl. 419.
LANGUAGE. Any means of conveying or com-
municating ideas; specifically, human speech, or
the expression of ideas by written characters. The
letter, or grammatical import, of a document or
instrument, as distinguished from its spirit; as
"the language of the statute." See Behling v.
State, 110 Ga. 754, 36 S.E. 85; Stevenson v. State,
90 Ga. 456, 16 S.E. 95; Cavan v. Brooklyn, City Ct.
Brook., 5 N.Y.S. 759. As to "offensive language,"
see Offensive Language.
LANGUIDUS. (Lat., sick.) In practice. The
name of a return made by the sheriff when a de-
fendant, whom he has taken by virtue of process,
is so dangerously sick that to remove him would
endanger his life or health. 3 Chit. Pr. 249, 358.
LANIS DE CRESCENTIA WALLIIE TRADUCEN-
DIS ABSQUE CUSTUMA, etc. An ancient writ
that lay to the customer of a port to permit one
to pass wool without paying custom, he having
paid it before in Wales. Reg, Orig. 279.
LANNS MANUS (Old Fr.). A lord of the manor.
Kelham.
LANO NIGER. A sort of base coin, formerly
current in England. Cowell.
LANZAS. In Spanish law. A commutation in
money, paid by the nobles and high officers, in
lieu of the quota of soldiers they might be required
to furnish in war. Trevino v. Fernandez, 13 Tex.
660.
LAPIDATION. The act of stoning a person to
death.
LAPIDICINA. Lat. In the civil law. A stone-
quarry. Dig. 7, 1, 9, 2.
LAPILLI. Lat. In the civil law. Precious stones.
Dig. 34, 2, 19, 17. Distinguished from "gems,"
(gemmce.) Id.
LAPIS MARMORIUS. A marble stone about
twelve feet long and three feet broad, placed at
the upper end of Westminster Hall, where was
likewise a marble chair erected on the middle
thereof, in which the English sovereigns anciently
sat at their coronation dinner, and at other times
the lord chancellor. Wharton.
LAPPAGE. A term synonymous with "inter-
ference," "conflict," "interlock," "lap" and "over-
lap" as regards adverse possession. It applies
to a situation existing when a deed under which
one party claims and grant under which another
claims cover in large part the same land. Turk
v. Wilson's Heirs, 265 Ky. 78, 98 S.W.2d 4, 8; Berry
v. Coppersmith, 212 N.C. 50, 193 S.E. 3, 6.
LAPSE, v. To glide; to pass slowly, silently, or
by degrees. To slip; to deviate from the proper
path. Webster. To fall or fail. Life & Casualty
Ins. Co. of Tennessee v. Wheeler, 265 Ky. 269, 96
S.W.2d 753, 755, 106 A.L.R. 1270.
LAPSE, n. The termination or failure of a right
or privilege through neglect to exercise it within
some limit of time, or through failure of some
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contingency. Wilmington Trust Co. v. Wilming-
ton Trust Co., 25 Del.Ch. 204, 15 A.2d 830, 834.
In criminal proceedings. "Lapse" is used, in
England, in the same sense as "abate" in ordinary
procedure; i. e., to signify that the proceedings
came to an end by the death of one of the parties
or some other event.
In ecclesiastical law. The transfer, by forfei-
ture of a right to present or collate to a vacant
benefice from a person vested with such right to
another, in consequence of some act of negligence
by the former. Ayl.Par. 331.
In the law of wills. The failure of a testamen•
tary gift. Wilmington Trust Co. v. Wilmington
Trust Co., 25 Del.Ch. 204, 15 A.2d 830, 834; Gredig
v. Sterling, C.C.A.Tex., 47 F.2d 832, 834.
LAPSE PATENT. A patent for land issued in sub-
stitution for an earlier patent to the same land,
which was issued to another party, but has lapsed
in consequence of his neglect to avail himself
of it. Wilcox v. Calloway, 1 Wash., Va., 39.
LAPSED DEVISE, See Devise.
LAPSED LEGACY. See Legacy.
LAPSED POLICY. A policy on which there has
been default in payment of premiums; policy re-
maining in force according to statutory provisions
after such default. Metcalf v. Metropolitan Life
Ins. Co., 1 Cal.App.2d 481, 37 P.2d 115.
LARBOARD. The left side of a ship or boat when
one stands with his-face towards the bow.
The opposite term is starboard, which is the right-hand
side looking forward. The word is now, however, no long-
er used, the term port having been substituted for it. The
change was made by order of the English admiralty, for
the very obvious reason that larboard was apt to be con-
fused with the opposite term.
LARCENOUS. Having the character of larceny;
as a "larcenous taking." Contemplating or intend-
ing larceny; as a "larcenous purpose."
LARCENOUS INTENT. A larcenous intent ex-
ists where a man knowingly takes and carries
away the goods of another without any claim or
pretense or right, with intent wholly to deprive
the owner of them or convert them to his own use.
Wilson v. State, 18 Tex.App. 274, 51 Am.Rep. 309.
LARCENY. Felonious stealing, taking and carry-
ing, leading, riding, or driving away another's per-
sonalty, 4 Bl.Comm. 229; People v. Brickey, 346
Ill. 273, 178 N.E. 483, 485; State v. Miller, 170 La.
51, 127 So. 361, 362; with intent to convert it or
to deprive owner thereof, Ledbetter v. State, 24
Ala.App. 447, 136 So. 430; Globe & Rutgers Fire
Ins. Co. v. House, 163 Tenn. 585, 45 S.W.2d 55,
56; Commonwealth v. Estes, 265 Ky. 186, 96 S.W.
2d 578, 580.
Larceny is fraudulent taking and carrying away of a
thing without claim of right, with intention of converting
it to a use other than that of the owner, without his con-
sent. Thomas v. Kessler, 334 Pa. 7, 5 A.2d 187, 188; Fitch
v. State, 135 Fla. 361, 185 So. 435, 437, 439, 440, 125 A.L.R.
360; Hanes Funeral Home v. Dixie Fire Ins. Co., 216 N: C.
562, 5 S.E.2d 820, 821, 822; receiving possession of person-
alty with intent to convert it to own use, and with intent
of person parting with It to part merely with his posses-
sion, Hagan v. State, 76 Okl.Cr. 127, 134 P.2d 1042, 1047,
1048, 1050; taking and removing, by trespass, of personal
property which trespasser knows to belong either general-
ly or specially to another, with intent to deprive him of
his ownership, State v. Broom, 135 Or. 641, 297 P. 340, 342;
State v. Levy, 113 Vt. 459, 35 A.2d 853, 854, and, perhaps it
should be added, for the sake of some advantage to the
trespasser,-a proposition on which the decisions are not
harmonious, .2 Bish.Crim.Law, §§ 757, 758; taking of per-
sonalty by fraud or stealth, and with intent to deprive an-
other thereof, Pen. Code Dak. § 580 (Comp.Laws N.D. 1913,
§ 9913 Rev. Code S.D.1919, § 4210); Hughes v. State,
61 Okl.Cr. 40, 65 P.2d 544, 546; Bussart v. State, 128 Fla.
891, 176 So. 32, 33; unlawful acquisition of property with
intent to convert to taker's use and appropriation by taker,
State v. Smith, 2 Wash.2d 118, 98 P.2d 647, 648, 649; un-
lawful or felonious taking and carrying away of things
personal with intent to deprive rightful owner of it, 4
Steph.Comm. 152; Globe & Rutgers Fire Ins. Co. v. House,
163 Tenn. 585, 45 S.W.2d 55, 56; Bowling v. Hamblen
County Motor Co., 16 Tenn.App. 52, 66 S.W.2d 229; wrong-
ful and fraudulent taking and carrying away by one of
personal goods of another with felonious intent to convert
them to his own use and make them his own property, or
to deprive the owner permanently of his property, with-
out owner's consent, Commonwealth v. Estes, 265 Ky. 186,
96 S.W.2d 578. 580; State v. Savage. Del.. 7 W.W.Harr.
509, 188 A. 738, 739; State v. Delk, 212 N.C. 631, 194 S.E.
94; Hickman v. State, 25 Ala.App. 279, 145 So. 167, 168;
wrongful or felonious taking property of another, without
his consent and against his will, with intent to convert
it to use of the taker, Hammon's Case, 2 Leach, 1089, State
v. Boswell, 195 N.C. 496, 142 S.E. 583, 584; State v. Fulks,
114 W.Va. 785, 173 S.E. 888, 889.
Obtaining possession of property by fraud, trick or de-
vice with preconceived design or intent to appropriate,
convert or steal is "larceny." John v. United States, 65
App.D.C. 11, 79 F.2d 136, People v. Cook, 10 Cal.App.2d 54,
51 P.2d 169. 170; State v. Wisman, 111 W.Va. 183, 161
S.E. 437, 438; Nugent v. Union Automobile Ins. Co., 140
Or. 61, 13 P.2d 343, 344.
Common-law distinctions between obtaining money un-
der false pretenses, embezzlement, and larceny no longer
exist in l.Tew York, but all such crimes are embraced with-
in definition of "larceny." People v. Krumme, 161 Misc.
278, 292 N.Y.S. 657, 660.
Generally, one who unlawfully takes another's personal
property, not intending to steal, and afterwards converts
it, intending to steal, is guilty of "larceny". Calhoun v.
State, 191 Miss. 82, 2 So.2d 802, 804, 805.
Every act of thief in the removal of property is in it-
self a complete "larceny". Schultz v. Lainson, 234 Iowa
606, 13 N.W.2d 326, 327, 156 A.L.R. 858.
Common Law Larceny
Felonious taking and carrying away of personal
goods of another, Fowler v. Firth, 163 Misc. 942,
298 N.Y.S. 723, 726, with intent to convert it to
taker's use. United States Fidelity & Guaranty
Co. v. Peoples Bank & Trust Co. of Westfield,
C.C.A.N.J., 79 F.2d 642, 644.
It is obtaining possession of another's property by fraud-
ulent trick or device, with intent to convert it to own use.
Powers v. State, 31 Ala.App. 614, 21 So.2d 282, 285; remov-
al of personalty which trespasser knows to belong to an-
other, with felonious intent to deprive him of his owner-
ship, U. S. v. Patton, C.C.A.Pa., 120 F.2d 73, 75, 76;
Austin v. State, 65 Ga.App. 733, 16 S.E.2d 497, 499; taking
and carrying away personal property of another without
his consent, feloniously, with intent to deprive owner of
his property permanently, and to convert it to use of taker,
or of some person other than the owner, Fowler v. Firth,
163 Misc. 942, 298 N.Y.S. 723, 72Q; trespassory taking and
asportation, Crabb v. Zerbst, C.C.A.Ga., 99 F.2d 562, 564;
unpermitted obtaining of possession of another's chattel
and removal thereof, Crabb v. Zerbst, C.C.A.Ga., 99 F.2d
562, 564; wrongful or fraudulent taking and carrying away
of the personal goods of another with felonious intent to
convert them to the taker's own use and make them his
own property without owner's consent. Riley v. State, 64
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Okl.Cr. 183, 78 P.2d 712, 715, 716; Hatfield v. Guay, C.C.A.
N.H., 87 F.2d 358, 363; Fowler v. Firth, 163 Misc. 942, 298
N.Y.S. 723, 726.
Compound Larceny
Larceny or theft accomplished ny taking the
thing stolen either from one's person or from
his house; otherwise called "mixed" larceny, and
distinguished from "simple" or "plain" larceny,
in which the theft is not aggravated by such an in-
trusion either upon the person or the dwelling.
Anderson v. Winfree, 85 Ky. 597, 4 S.W. 351; State
v. Chambers, 22 W.Va. 786, 46 Am.Rep. 550.
Constructive Larceny
One where the felonious intent to appropriate
the goods to his own use, at the time of the as-
portation, is made out by construction from the
defendant's conduct, although, originally, the tak-
ing was not apparently felonious. 2 East, P.C. 685;
1 Leach, 212
False Pretense and Larceny Distinguished
See False Pretenses.
Grand Larceny
In criminal law. In England, simple larceny,
was originally divided into two sorts,—grand lar-
ceny, where the value of the goods stolen was
above twelve pence, and petit larceny, where their
value was equal to or below that sum. 4 Bl.
Comm. 229.
The distinction was abolished in England by St. 7 &
Geo. IV. c. 29, and is not generally recognized in the
United States, although in a few states there is a statutory
offense of grand larceny, one essential element of which
is the value of the goods stolen, which value varies. See
State v. Bean, 74 Vt. 111, 52 A. 269; People v. Murray, 8
Cal. 520; State v. Kennedy, 88 Mo. 343.
Larceny by Bailee
In Pennsylvania law. The crime of larceny
committed where any person, being a bailee of any
property, shall fraudulently take or convert the
same to his own use, or to the use of any other
person except the owner thereof, although he shall
not break bulk or otherwise determine the bail-
ment. Brightly's Purd. Dig. p. 436, § 177 (18 P.S.
§ 4816). And see Welsh v. People, 17 Ill. 339;
State v. Skinner, 29 Or. 599, 46 P. 368.
Larceny from the Person
Act of taking property from the person by mere-
ly lifting it from the person or pocket. State v.
Stanton, Mo., 68 S.W.2d 811, 812.
Larceny committed where the property stolen is on the
person or in the immediate charge or custody of the per-
son from whom the theft is made, but without such cir-
cumstances of force or violence as would ccnstitute rob-
bery, including pocket-picking and such crimes. Williams
v. U. S., 3 App.D.C. 345; State v. Eno, 8 Minn. 220, Gil.
190.
Mixed Larceny
Otherwise called "compound" or "complicated
larceny;" that which is attended with circum-
stances of aggravation or violence to the person,
or taking from a house.
Petit Larceny
The larceny of things whose value was below
a certain arbitrary standard, at common law
twelve pence. See Ex parte Bell, 19 Fla. 612;
Barnhart v. State, 154 Ind. 177, 56 N.E. 212; Peo-
ple v. Righetti, 66 Cal. 184, 4 P. 1185,
Simple Larceny
Felonious or wrongful taking and carrying away
of personal goods of another. People v. Pace, 2
Cal.App.2d 464, 38 P.2d 202, 203. With intent to
steal, Belmas v. State, 15 Ga.App. 288, 82 S.E. 819,
unattended by acts of violence.
Larceny which is not complicated or aggravated with
acts of violence. Larceny from the person, or with force
and violence, is called "compound" larceny. See State v.
Chambers, 22 W.Va. 786, 46 Am.Rep. 550; Anderson v.
Winfree, 4 S.W. 351, 85 Ky. 597.
LARD. The clarified semi-solid oil of hog's fat.
Cent. Dict. The pure fat of healthy swine. State
v. Snow, 81 Iowa 642, 47 N.W. 777, 11 L.R.A. 355.
LARDARIUS REGIS. The king's larderer, or
clerk of the kitchen. Cowell.
LARDING MONEY. In the manor of Bradford,
in Wilts, the tenants pay to their lord a small
yearly rent by this name, which is said to be for
liberty to feed their hogs with the masts of the
lord's wood, the fat of a hog being called "lard;"
or it may be a commutation for some customary
service of carrying salt or meat to the lord's lard-
er. Mon. Angl. t. 1, p. 321.
LARGE. L. Fr. Broad; the opposite of "es-
treyte," strait or strict. Pures et larges. Britt.
c. 34.
LARONS. In old English law. Thieves.
LAS PARTIDAS. In Spanish law. The name of
a code of laws, more fully described as "Las Siete
Partidas," ("the seven parts," from the number
of its divisions,) which was compiled under the
direction of Alphonso X., about the year 1250.
Its sources were the customary law of all the provinces,
the canon law as there administered, and (chiefly) the Ro-
man law. This work has always been regarded as of the
highest authority in Spain and in those countries and states
which have derived their jurisprudence from Spain.
LASCAR. A native Indian sailor; the term is
also applied to tent pitchers, inferior artillery-men,
and others.
LASCIVIOUS. Tending to excite lust; lewd; in-
decent; obscene; sexual impurity; tending to de-
prave the morals in respect to sexual relations;
licentious. See Swearingen v. U. S., 161 U.S. 446,
16 S.Ct. 562, 40 L.Ed. 765; People on Complaint of
Sumner v. Dial Press, 182 Misc. 416, 48 N.Y.S.2d
480, 481; Dunlop v. U. S., 165 U.S. 486, 17 S.Ct.
375, 41 L.Ed. 799; Purvis v. State, 117 Neb. 377,
220 N.W. 599, 600. Conduct which is wanton, lewd,
and lustful, and tending to produce voluptuous or
lewd emotions. Zeiner v. Zeiner, 120 Conn. 161,
179 A. 644, 646.
LASCIVIOUS CARRIAGE, In Connecticut. A
term including those wanton acts between persons
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of different sexes that flow from the exercise of
lustful passions, and which are not otherwise pun-
ished as crimes against chastity and public de-
cency. 2 Swift, Dig. 343. It includes, also, in-
decent acts by one against the will of another.
Fowler v. State, 5 Day, Conn., 81.
LASCIVIOUS COHABITATION. The offense
committed by two persons (not married to each
other) who live together in one habitation as man
and wife and practice sexual intercourse.
LASHITE, or LASHLITE. A kind of forfeiture
during the government of the Danes in England.
Enc. Lond.
LAST, n. In old English law, signifies a burden;
also a measure of weight used for certain com-
modities of the bulkier sort.
LAST, adj. Latest; ultimate; final; most recent.
LAST ANTECEDENT RULE. A canon of statu-
tory construction that relative or qualifying words
or phrases are to be applied to the words or phras-
es immediately preceding, and as not extending to
or including other words, phrases, or clauses more
remote, unless such extension or inclusion is clear-
ly required by the intent and meaning of the con-
text, or disclosed by an examination of the entire
act. Stevens v. Illinois Cent. R. Co., 306 Ill. 370,
137 N.E. 859, 861; Nebraska State Ry. Commission
v. Alfalfa Butter Co., 104 Neb. 797, 178 N.W. 766,
768; Wisconsin Power & Light Co. v. Public Serv-
ice Commission of Wisconsin, 224 Wis. 286, 272
N.W. 50, 52.
LAST CLEAR CHANCE. The "last clear chance
doctrine" is that a party who has last clear chance
to avoid damage or injury to another is liable.
Johnston v. Brewer, 40 Cal.App.2d 583, 105 P.2d
365, 367; Miami Beach Ry. Co. v. Dohme, 131 Fla.
171, 179 So. 166, 169; Virginia Electric & Power
Co. v. Whitehurst, 175 Va. 339, 8 S.E.2d 296, 299;
that negligence of party having last opportunity
of avoiding accident is sole proximate cause of in-
jury, Malfetano v. United Electric Rys. Co., 58 R.I.
129, 191 A. 491, 498; Gregory v. Maine Cent. R.
Co., 317 Miss. 636, 59 N.E.2d 471, 476, 159 A.L.R.
714; that if one has opportunity of avoiding in-
j uring another he must at his peril exercise the
opportunity. Ferran v. Southern Pac. Co., 3 Cal.
2d 350, 44 P.2d 533, 534. It places liability upon
him who commits the last proximate negligent
act. Davis v. Cuesta, 146 Fla. 471, 1 So.2d 475, 476.
The doctrine is inapplicable unless injured party was
guilty of negligence, Yellow Cab Corporation of Abingdon
v. Henderson, 178 Va. 207, 16 S.E.2d 389, 393; Washam v.
Peerless Automatic Staple Mach. Co., 45 Cal.App.2d 174,
113 P.2d 724, 728; and unless injured person is in an ap-
parently helpless condition, Battle v. Southern Ry. Co.,
223 N.C. 395, 26 S.E.2d 859.
The doctrine means that an injured party may recover,
notwithstanding negligence: if defendant could have avoid-
ed injury after discovering or knowing of peril, Sprinkle v.
Davis, C.C.A.Va., 111 F.2d 925, 928, 128 A.L.R. 1101; Wed-
dle v. Virginian Ry. Co., 125 W.Va. 41, 22 S.E.2d 698, 701;
Jones v. Yuma Motor Freight Terminal, 45 Cal.App.2d 497,
114 P.2d 438, 439, 440; Shea v. Pilette, 108 Vt. 446, 189 A.
154, 158, 109 A.L.R. 933, Stelter v. Northern Pac. Ry. Co.,
71 N.D. 214, 299 N.W. 310, 313, 314; if injuring party, see-
ing or knowing or aware of peril, fails to use ordinary or
due care and thereby causes injury, 'Underhill v. Peterson,
110 Cal.App. 221, 293 P. 861, 864; Groves v. Webster City,
222 Iowa 849, 270 N.W. 329, 332; Caplan v. Arndt, 123
Conn. 585, 196 A. 631, 633, 119 A.L.R. 1037; Kurn v. Mc-
Coy, 187 Okl. 210, 102 P.2d 177; if injury might have been
avoided by exercise of reasonable care by defendant, Har-
stick v. Beckenhauer, 143 Neb. 179, 8 N.W.2d 834, 837;
General Exchange Ins. Corporation v. Carp, La.App., 176
So. 145, 147; Kelley Furniture Co. v. Washington Ry. &
Electric Co., 64 App.D.C. 215, 76 F.2d 985; Srogi v. New
York Cent. R. Co., 247 App.Div. 95, 286 N.Y.S. 215; Mullins
v. Cincinnati, N. & C. Ry. Co., 253 Ky. 156,.68 S.W.2d 790;
Lovett v. Sandersville R. Co., 72 Ga.App. 692, 34 S.E.2d
664, 666; if, with knowledge of peril to plaintiff or plain-
tiff's property, another acts or omits to act and injury re-
sults, Parsons v. Berry, 130 Neb. 264, 264 N.W. 742, 744.
The doctrine implies thought, appreciation, mental di-
rection, and a lapse of sufficient time to effectually act up-
on impulse to save another from injury, Colwell v. Ny-
gaard, 8 Wash.2d 462, 112 P.2d 838, 845; Merchants'
Transp. Co. v. Daniel, 109 Fla. 496, 149 So. 401, 403; or
proof of circumstances which will put the one charged on
implied notice of the situation, Schoen v. Western Union
Telegraph Co., C.C.A.Fla., 135 F.2d 967, 968.
The doctrine imposes duty upon a party to exercise
ordinary care in avoiding injury to another who has neg-
ligently placed himself in a situation of danger, Morris v.
Seashore Transp. Co., 208 N.C. 807, 182 S.E. 487, duty to
act when helpless peril is known and duty to exercise
vigilance to discover helpless peril, if duty of vigilance
exists toward class of which one in peril is member,
Leinbach v. Pickwick Greyhound Lines, 138 Kan. 50, 23 P.
2d 449, 92 A.L.R. 1.
The doctrine is limited, according to some decisions, to
cases in which defendant actually discovered person in-
jured and his peril. Walker v. East St. Louis & Suburban
Ry. Co., C.C.A.Mo., 25 F.2d 579, 580, Gauthier v. Foote, La.
App., 12 So.2d 9, 11; or in which defendant had actual
knowledge of plaintiff's peril or inability to extricate him-
self. Sarkise v. Boston & M. R. R., 88 N.H. 178, 186 A.
332, 334. But other decisions hold that the doctrine applies
if defendant, aware of plaintiff's peril or unaware of it only
through carelessness, has later opportunity than plaintiff to
avert the accident, Cheek v. Thompson, D.C.La., 28 F.
Supp. 391, 394; Linde Air Products Co. v. Cameron, C.C.A.
W.Va., 82 F.2d 22, 24; or if defendant knew or could or
should have known of peril, Arthur v. Rose, 289 Ky. 402,
158 S.W.2d 652, 653, 654; Ward v. City Fuel Oil Co., 147
Fla. 320, 2 So.2d 586, 587; Smith v. Pacific Greyhound Cor-
poration, 139 Cal.App. 696, 35 P.2d 169, 172; or if defend-
ant saw or discovered or should have seen or discovered
the danger, Young v. Thompson, La.App., 189 So. 487, 489,
490, 491; Hartman v. Dyer, 298 Ky. 173, 182 S.W.2d 646,
647; Evansville Container Corporation v. McDonald, C.C.A.
Tenn., 132 F.2d 80, 85; Harry v. Thompson, Mo.App., 166
S.W.2d 795, 798; or if injuring party was aware of peril
or by reasonable care should have known of danger, Gard-
ini v. Arakelian, 18 Cal.App.2d 424, 64 P.2d 181, 184; or if
peril is realized by defendant or through culpable careless-
ness he is oblivious to it, Pedigo v. Osborne, 279 Ky. 85, 129
S.W.2d 996, 999; Johnson v. Southwestern Engineering
Co., 41 Cal.App.2d 623, 107 P.2d 417, 418.
The doctrine is predicated, according to some decisions,
upon the theory that negligence of injured party has
ceased. Baltimore & 0. R. Co. v. Joseph, C.C.A.Ohio, 112
F.2d 518, 521, 522; Cohen v. Smith, 26 Ohio App. 32, 159 N.
E. 329, 333; Claggett v. Phillips Petroleum Co., 150 Kan.
191, 92 P.2d 52, 57; Becker v. Blum, 142 Fla. 60, 194 So.
275, 276.
Other decisions hold that, although plaintiff's negligence
continued until accident he may recover if the defendant,
after knowing of plaintiff's danger, or by exercise of ordi-
nary care could have known, could have avoided injury
by ordinary care, McLeod v. Charleston Laundry Co., 106
W.Va. 361, 145 S.E. 756, 757; Newbern v. Leary, 215 N.C.
134, 1 S.E.2d 384, 389, 393; Young v. Thompson, La.App.,
189 So. 487, 489, 490, 491; that the doctrine applies where
plaintiff's negligence continues up to time of injury, if
defendant actually sees the peril, or if plaintiff's negli-
gence has terminated and defendant should have seen it.
Chadwick v. Ek, .1 Wash.2d 117, 95 P.2d 398, 404; that the
doctrine applies where negligence of defendant with actual
knowledge of situation stands over against continuing neg-
ligence of plaintiff without actual knowledge of situation,
Black's Law Dictionary Revised 4th Ed.-65
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but not where plaintiff's negligence with knowledge of
situation stands over against defendant's negligence also
with such knowledge, Iverson v. Knorr, 68 S.D. 23, 298 N.
W. 28, 31.
The doctrine is sometimes designated as the humanitari-
an doctrine, Blashfield's Cyc. of Automobile Law and Prac.,
Perm. Ed., § 2841; Gilbert v. Mississippi River & B. T. R.
Co., Mo.App., 226 S.W. 263, 264; Iglesias v. Campbell, La.
App., 175 So. 145, 147; and also the doctrine of discovered
peril, Missouri Pac. R. Co. v. Skipper, 174 Ark. 1083, 298
S.W. 849, 854; Hines v. Foreman, Tex.Civ.App., 229 S.W.
630, 635; Soards v. Shreveport Rys. Co., La.App., 8 So.2d
343, 344. In Maryland, it is equivalent to "negligence in
the third degree." State v. New York, P. & N. R. Co.,
127 Md. 651. 96 A. 809, 811. The term "last fair chance"
is synonymous. Nagel v. Bretthauer, 230 Iowa 707, 298 N.
W. 852, 854.
LAST COURT. A court held by the twenty-four
jurats in the marshes of Kent, and summoned by
the bailiffs, whereby orders were made to lay and
levy taxes, impose penalties, etc., for the preserva-
tion of the said marshes. Enc. Lond.
LAST HEIR. In English law. He to whom lands
come by escheat for want of lawful heirs; that
is, in some cases, the lord of whom the lands were
held; in others, the sovereign. Cowell.
LAST ILLNESS. The illness terminating in per-
son's death. Long v. Northrup, 225 Iowa 132, 279
N.W. 104, 106, 116 A.L.R. 1475; Proto v. Cheno-
weth, 40 Ariz. 312, 11 P.2d 950, 951.
LAST RESORT. A court from which there is no
appeal is called the "court of last resort."
LAST SICKNESS. That illness of which a person
dies is so called. Huse v. Brown, 8 Me: 169; Har-
rington v. Stees, 82 Ill. 54, 25 Am.Rep. 290; Mc-
Voy v. Percival, Dud. Law (S.C.) 337; Prince v.
Hazelton, 20 Johns., N.Y., 513, 11 Am.Dec. 307.
LAST WILL. This term, according to Lord Coke,
is most commonly used where lands and tene-
ments are devised, and "testament" where it con-
cerns chattels. Co. Litt. 111a. Both terms, how-
ever, are now generally employed in drawing a
will either of lands or chattels. See Reagan v.
Stanley, 11 Lea, Tenn., 322; Hill v. Hill, 7 Wash.
409, 35 P. 360.
The common usage the world over is to employ the
words "will," "testament," and "last will and testament"
as exactly synonymous. Occidental Life Ins. Co. v. Pow-
ers, 192 Wash. 475, 74 P.2d 27, 32, 114 A.L.R. 531.
LASTAGE. A custom exacted in some fairs and
markets to carry things bought whither one will.
But it is more accurately taken for the ballast or
lading of a ship. Also custom paid for wares sold
by the last, as herrings, pitch, etc. Wharton.
LATA CULPA. Lat. In the law of bailment.
Gross fault or neglect; extreme negligence or
carelessness (nimia negligentia). Dig. 50, 16, 213,
2.
LATA CULPA DOLO ZEQUIPARATUR. Gross
negligence is equivalent to fraud.
LATCHING. An under-ground survey.
LATE. Defunct; existing recently, but now dead.
Pleasant v. State, .17 Ala. 190. Formerly; recent.
ly; lately.
LATELY. This word has been held to have "a
very large retrospect, as we say 'lately deceased'
of one dead ten or twenty years." Per. Cur. 2
Show. 294.
LATENS. Lat. Latent; hidden; not apparent.
See Ambiguitas.
LATENT. Hidden; concealed; dormant; that
does not appear upon the face of a thing; as, a
latent ambiguity. See Ambiguity.
LATENT DEED. A deed kept for twenty years
or more in a man's scrutoire or strongbox. Wright
v. Wright, 7 N.J.L. 177, 11 Am.Dec. 546.
LATENT DEFECT. A hidden defect. Ross v.
Tynes, La.App., 14 So.2d 80, 83. A defect in an
article sold, which is known to the seller, but not
to the purchaser, and is not discoverable by mere
observation. See Hoe v. Sanborn, 21 N.Y. 552,
78 Am.Dec. 163. A defect which reasonably care-
ful inspection will not reveal. Schaff v. Ellison,
Tex.Civ.App., 255 S.W. 680, 682; Roberts .v. Rog-
ers, 129 Neb. 298, 261 N.W. 354; a defect which
could not have been discovered by inspection.
Roberts v. Rogers, 129 Neb. 298, 261 N.W. 354.
A defect that could not be discovered by any
known and customary test. The Bill, D.C.Md., 47
F.Supp. 969, 978. So, a latent defect in the title of
a vendor of land is one not discoverable by in-
spection made with ordinary care. Newell v.
Turner, 9 Port., Ala., 422.
LATENT EQUITY. See Equity.
LATERA. In old records. Sidesmen; compan-
ions; assistants. Cowell.
LATERAL RAILROAD. A lateral road is one
which proceeds from some point on the main trunk
between its termini; it is but another name for a
branch road, both being a part of the main road.
Newhall v. Railroad Co., 14 Ill. 273. An offshoot
from main line of railroad. Union Pac. R. Co. v.
Anderson, 167 Or. 687, 120 P.2d 578, 588.
LATERAL SUPPORT. The right of lateral and
subjacent support is the right to have land sup-
ported by the adjoining land or the soil beneath.
Stevenson v. Wallace, 27 Grat., Va., 77; Foley v.
Wyeth, 2 Allen., Mass., 131, 79 Am.Dec. 771; In
re Locust St. Subway, 117 Pa.Super. 86, 177 A.
599, 605; 12 Amer. & Eng. Enc. Law, 933.
LATERARE. To lie sideways, in opposition to
lying endways; used in descriptions of lands.
LATH, LATHE. The name of an ancient civil
division in England, intermediate between the
county or shire and the hundred. Said to be the
same as what, in other parts of the kingdom, was
termed a "rape." 1 Bl.Comm. 116; Cowell; Spel-
man.
LATHREVE. An officer under the Saxon govern-
ment, who had authority over a lathe. Cowell;
1 Bl.Comm. 116.
LATIFUNDIUM. Lat. In the civil law. Great or
large possessions; a great or large field; a com-
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mon. A great estate made up of smaller ones,
(fundis,) which began to be common in the latter
times of the empire.
LATIFUNDUS. A possessor of a large estate
made up of smaller ones. Du Cange.
LATIMER. A word used by Lord Coke in the
sense of an interpreter. 2 Inst. 515. Supposed
to be a corruption of the French "latinier," or
"latiner." Cowell; Blount.
LATIN. The language of the ancient Romans.
There are three sorts of law Latin : (1) Good Latin, al-
lowed by the grammarians and lawyers; (2) false or in-
congruous Latin, which in times past would abate original
writs, though it would not make void any judicial writ,
declaration, or plea, etc. ; (3) words of art, known only to
the sages of the law, and not to grammarians, called "Law-
yers' Latin." Wharton.
LATINARIUS. An interpreter of Latin.
LATINI JUNIANI. Lat. In Roman law. A class
of freedmen (libertini) intermediate between the
two other classes of freedmen called, respectively,
"Cives Romani" and "Dediticii."
Slaves under thirty years of age at the date of their
manumission, or manumitted otherwise than by vindicta,
census, or testamentum, or not the quiritary property of
their manumissors at the time of manumission, were called
"Latini." By reason of one or other of these three de-
fects, they remained slaves by strict law even after their
manumission, but were protected in their liberties first by
equity, and eventually by the Lex Junia Norbana, A. D.
19, from which law they took the name of "Juniani" in ad-
dition to that of "Latini." Brown.
LATITAT. In old English practice. A writ which
issued in personal actions, on the return of non est
inventus to a bill of Middlesex; so called from
the emphatic word in its recital, in which it was
"testified that the defendant lurks [latitat] and
wanders about" in the county. 3 Bl.Comm. 286.
Abolished by St. 2 Wm. IV. c. 39.
LATITATIO. Lat. In the civil law and old Eng-
lish practice. A lying hid; lurking, or conceal-
ment of the person. Dig. 42, 4, 7, 5; Bract. fol.
126.
LATOR. Lat. In the civil law. A bearer; a mes-
senger. Also a maker or giver of laws.
LATRO. Lat. In the civil and old English law.
A robber. Dig. 50, 16, 118; Fleta, lib. 1, c. 38, § 1.
A thief.
LATROCINATION. The act of robbing; a depre-
dation.
LATROCINIUM. The prerogative of adjudging
and executing thieves; also larceny; theft; a
thing stolen.
LATROCINY. Larceny.
LATTER-MATH. A second mowing; the after-
math.
LAUDARE. Lat.
LAVOR
In Feudal law. To determine or pass upon ju-
dicially. Laudamentum, the finding or award of a
jury. 2 Bl.Comm. 285.
LAUDATIO. Lat. In Roman law. Testimony
delivered in court concerning an accused person's
good behavior and integrity of life. It resembled
the practice which prevails in our trials of calling
persons to speak to a prisoner's character. The
least number of the laudatores among the Romans
was ten. Wharton.
LAUDATOR. Lat. An arbitrator; a witness to
character.
LAUDEMEO. In Spanish law. The tax paid by
the possessor of land held by quit-rent or emphy-
teusis to the owner of the estate, when the tenant
alienates his right in the property. Escriche.
LAUDEMIUM. Lat. In the civil law, a sum paid
by a new emphyteuta (q. v.) who acquires the
emphyteusis, not as heir, but as a singular suc-
cessor, whether by gift, devise, exchange, or sale.
It was a sum equal to the fiftieth part of the purchase
money, paid to the dominus or proprietor for his accept-
ance of the new emphyteuta. Mackeld.Rom.Law, § 328.
Called, in old English law, "acknowledgment money."
Cowell.
LAUDUM. Lat. An arbitrament or award.
In Old Scotch law. Sentence or judgment; dome
or doom. 1 Pitc. Crim. Tr. pt. 2, p. 8.
LAUGHE. Frank-pledge. 2 Reeve, Eng. Law, 17.
LAUNCEGAY. A kind of offensive weapon, now
disused, and prohibited by 7 Rich. II. c. 13.
LAUNCH. The act of launching a vessel; the
movement of a vessel from the land into the wa-
ter, especially the sliding on ways from the stocks
on which it is built. Homer v. The Lady of the
Ocean, 70 Me. 352.
A boat of the largest size belonging to a ship
of war; an open boat of large size used in any
service; a lighter.
LAUREATE. In English law. An officer of the
household of the sovereign, whose business form-
erly consisted only in composing an ode annually,
on the sovereign's birthday, and on the new year;
sometimes also, though rarely, on occasion of any
remarkable victory.
LAURELS. Pieces of gold, coined in 1619, with
the king's head laureated; hence the name.
See Jacobus.
LAUS DEO. Lat. Praise be to God. An old
heading to bills of exchange.
LAVATORIUM. A laundry or place to wash in;
a place in the porch or entrance of cathedral
churches, where the priest and other officiating
ministers were obliged to wash their hands before
they proceeded to divine service.
In Civil law. To name; to cite or quote; to show
one's title or authority. Calvin.
LAVOR NUEVA. In Spanish law. A new work.
Las Partidas, pt. 3, tit. 32, 1. 1.
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LAW
LAW. That which is laid down, ordained, or es-
tablished. A rule or method according to which
phenomena or actions co-exist or follow each oth-
er. That which must be obeyed and followed by
citizens, subject to sanctions or legal consequences,
is a "law." Koenig v. Flynn, 258 N.Y. 292, 179 N.
E. 705.
In old English jurisprudence, "law" is used to
signify an oath, or the privilege of being sworn;
as in the, phrases "to wage one's law," "to lose
one's law."
The term is also used in opposition to "fact."
Thus questions of law are to be decided by the
court, while it is the province of the jury to solve
questions of fact.
The earliest notion of law was not an enumeration of a
principle, but a judgment in a particular case. When pro-
nounced in the early ages, by a king, it was assumed to
be the result of direct divine inspiration. Afterwards came
the notion of a custom which a judgment affirms, or pun-
ishes its breach. In the outset, however, the only au-
thoritative statement of right and wrong is a judicial sen-
tence rendered after the fact has occurred. It does not
presuppose a law to have been violated, but is enacted for
the first time by a higher form into the judge's mind at the
moment of adjudication. Maine, Anc.Law, (Dwight's Ed.)
pp. xv, 5.
The word may mean or embrace:
Act of the Legislature deposited in office of Secretary of
State, properly authenticated by presiding officers of the
two houses, and approved by Governor, State ex rel. Mar-
tin v. Zimmerman, 233 Wis. 16, 288 N.W. 454, 456; body of
principles, standards and rules promulgated by govern-
ment, State ex rel. Conway v. Superior Court within and
for Greenlee County, 60 Ariz. 69, 131 P.2d 98.3, 986; city
charter provision, Sykes v. City of Battle Creek, 288 Mich.
660, 286 N.W. 117, 118; command which obliges a person
or persons and obliges generally to acts or forbearances of
a class, Aust.Jur. ; constitution or constitutional provision,
Boston Elevated Ry. Co. v. Commonwealth, 310 Mass. 528,
39 N.E.2d 87, 109; Wickham v. Grand River Dam Authori-
ty, 189 Okl. 540, 118 P.2d 640, 643; Board of Public Instruc-
tion for Bay County v. State ex rel. Barefoot, 145 Fla. 482,
199 So. 760, 762; Hudson v. Cummard, 44 Ariz. 7, 33 P.2d
591, 593; county ordinance, People v. Ziady, 8 Ca.1.2d 149,
64 P.2d 425, 430, 108 A.L.R. 1234; distinct and complete
act of positive law; doctrine or procedure of the common
law, from which equity is a departure; enrolled bill
attested by presiding officers of two branches of General
Assembly, Shannon v. Dean, 279 Ky. 279, 130 S.W.2d 812,
815; Executive Order concerning alienation of Indians'
land, United States v. Gilbertson, C.C.A.Wis., 111 F.2d 978,
980; Federal Communications Commission's regulations,
Columbia Broadcasting System v. United States, N.Y., 316
U.S. 407, 62 S.Ct. 1194, 1200, 1201, 86 L.Ed. 1563; Federal
Home Loan Bank Board's rules, Community Federal Say.
& Loan Ass'n of Independence, Mo. v. Fields, C.C.A.Mo.,
128 F.2d 705, 707; Federal Trade Commission's rules, Krit-
zik v. Federal Trade Commission, C.C.A.7, 125 F.2d 351,
352; general rule of human action, taking cognizance only
of external acts, enforced by a determinate authority,
which authority is human, and among human authorities is
that which is paramount in a political society, Holl.Jur.
36; governmental direction, In re Baldwin Tp., Allegheny
County Annexation, 305 Pa. 490, 158 A. 272; grant by Leg-
islature, City of Los Angeles v. Pacific Land Corporation,
41 Cal.App.2d 223, 106 P.2d 242, 244; Industrial Commis-
sion's Rules, State ex rel. Koger v. Industrial Commission,
Ohio App., 48 N.E.2d 114, 118; Interstate Commerce Com-
mission's Regulations, Columbia Broadcasting System v.
United States, N.Y., 316 U.S. 407, 62 S.Ct. 1194, 1200, 86
L.Ed. 1563; judicial decisions, judgments or decrees,
West v. American Telephone & Telegraph Co., Ohio, 311
U.S. 223, 61 S.Ct. 179, 18.3, 132 A.L.R. 956, 85 L.Ed. 139;
Miller v. Huntington & Ohio Bridge Co., 123 W.Va. 320, 15
S.E.2d 687, 692; U. S. v. Pendergast, D.C.Mo., 35 F.Supp.
593, 599; Monteith Bros. Co. v. U. S., D.C.Ind., 48 F.Supp.
210, 211; law of the state, Plick v. Toye Bros. Auto & Taxi-
cab Co., 169 La. 44, 124 So. 140, 141; legislation by initia-
tive method, Opinion of the Justices, 309 Mass. 676, 35
N.E.2d 676, 680; local rules of decision, National Fruit
Product Co. v. Dwinell-Wright Co., D.C.Mass., 47 F.Supp.
499, 502; long-established local custom which has the force
of law, Dubois v. Hepburn, 10 Pet. 1, 9 L.Ed. 325. Bush v.
Brenner, D.C.Minn., 29 F.2d 844. 845; municipal ordi-
nance, Norfolk & W. Ry. Co. v. White, Va., 160 S.E. 218,
221; State v. Police Court of City of Deer Lodge, 86 Mont.
297, 283 P. 430, 433 (contra, Village of Brewster v. Hills,
128 Ohio St. 354, 191 N.E. 366; City of Cincinnati v. Cor-
rell, 141 Ohio St. 535, 49 N.E.2d 412, 413) ; prescribed rules
of action or conduct, In re Baldwin Tp., Allegheny County
Annexation, 305 Pa. 490, 158 A. 272; U. S. Fidelity &
Guaranty Co. v. Guenther, 281 U.S. 34, 50 S.Ct. 165, 166. 74
L.Ed. 683, 72 A.L.R. 1064; proclamation of Governor, Wil-
liams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177. 184:
regulations, In re Baldwin Tp., Allegheny County Annexa-
tion, 305 Pa. 490, 158 A. 272; resolution passed by Legisla-
ture and approved by Governor, City of Bangor v. Inhabi-
tants of Etna, 140 Me. 85, 34 A.2d 205, 208; revised stat-
utes, W. R. McCullough Life Ins. Co. v. Armstrong, Tex.
Civ.App., 158 S.W.2d 585, 586; rule of administrative
authority, Inman v. Sandvig, 170 Wash. 112, 15 P.2d 696.
698; rule of civil conduct commandin g, what is right andp rohibiting what is wrong, Rich Hill Coal Co. v. Bashore,
334 Pa. 449. 7 A.2d 302, 312 ; Maner v. Dykes, 183 Ga. 118,
187 S.E. 699, 701; City of Bangor v. Inhabitants of Etna,
140 Me. 85, 34 A.2d 205, 208; rule of civil conduct pre-
scribed by the supreme power in a state, 1 Steph.Comm.
25; Civ.Code Dak. § 2 (Comp.Laws N.D.1913, § 4327; Rev.
Code ST ..1919, § 1) ; Pol.Code Cal. § 4466; City of Bangor
v. Inhabitants of Etna, 140 Me. 85, 34 A.2d 205. 208; rule
of conduct prescribed by lawmaking power of state, Board
of Education of Union Free School Dist. No. Six of Town
of Greenbur g h v. Town of Greenburgh, 277 N.Y. 193, 13
N.E.2d 768, 770; Maner v. Dykes, 183 Ga. 118, 187 S.E. 699,
701; rule prescribed by the sovereign power, Maner v.
Dykes, 183 Ga. 118, 187 S.E. 699, 701; rules of court.
Department of Finance v. Sheldon, 381 Ill. 256, 44 N.E.2d
863, 864; Goldston v. Karukas, 180 Md. 232, 23 A.2d 691,
692; State ex rel. Conway v. Superior Court within and
for Greenlee County, 60 Ariz. 69, 131 P.2d 983, 986; rules
of decision commonly accepted and acted upon by bar and
inferior courts, West v. American Telephone & Telegraph
Co., Ohio, 311 U.S. 223, 61 S.Ct. 179, 183, 132 A.L.R. 956,
85 L.Ed. 139; rules promulgated by government, State ex
rel. Conway v. Superior Court within and for Greenlee
County, 60 Ariz. 69, 131 P.2d 983, 986; science or system of
principles or rules of human conduct; Secretary of the
Treasury regulations, In re Deyo's Estate, 42 N.Y.S.2d 379,
386, 180 Misc. 32; solemn expressions of legislative will
which generally relate to what passes in ordinary course of
affairs, Civ.Code La. arts. 1, 2; statute laws as construed
by highest courts of state, National City Bank v. National
Sec. Co., C.C.A.Tenn., 58 F.2d 7, 9; statute or enactment
of legislative body, Shute v. Frohmiller, 53 Ariz. 483, 90
P.2d 998, 1001; State v. Masnik, 123 N.J.L. 335, 8 A.2d 701,
704; State ex rel. McKittrick v. Missouri Public Service
Commission, 252 Mo. 29, 175 S.W.2d 857, 861; United
States law, U. S. v. Wagner, C.C.A.Cal., 93 F.2d 77, 79;
War Department regulations, Standard Oil Co. of Califor-
nia v. Johnson, Cal., 316 U.S. 481, 62 S.Ct. 1168, 1169, 86
L.Ed. 1611.
A concurrent or joint resolution of legislature is not "a
law", Koenig v. Flynn, 179 N.E. 705, 707, 258 N.Y. 292;
Ex parte Hague, 105 N.J.Eq. 134, 147 A. 220, 222; Ward v.
State. 176 Okl. 368, 56 P.2d 136, 137; Scudder v. Smith,
331 Pa. 165, 200 A. 601, 604; a resolution of the house of
representatives is not a "law", State ex rel. Todd v. Yelle,
7 Wash.2d 443, 110 P.2d 162, 165; an unconstitutional stat-
ute is not a "law", John F. Jelke Co. v. Hill, 208 Wis. 650,
242 N.W. 576, 581; Flournoy v. First Nat. Bank of Shreve-
port, 197 La. 1067, 3 So.2d 244, 248.
When a statute is passed in violation of law, that is, of
the fundamental law or constitution of a state, it is the
prerogative of courts to declare it void, or, in other words,
to declare it not to be law. Burrill.
When the term "law" is used to denote enactments of
the legislative power, it is frequently confined, especially
by English writers, to permanent rules of civil conduct, as
distinguished from other acts, such as a divorce act, an
app ropriation bill, an estates act. Rep.Eng.St.L.Com.Mar.
1856.
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LAW HATETH NEW
With reference to its origin, "law" is derived either from
judicial precedents, from legislation, or from custom.
Sweet.
As to the different kinds of law, or law regard-
ed in its different aspects, see Absolute Law; Ad-
jective Law; Administrative Law; Admiralty;
Arms, Law of; Bankrupt Law; Canon Law;
Case Law; Citations, Law of ; Civil Law; Com-
mercial Law; Common Law; Constitutional Law;
Criminal; Custom; Ecclesiastical Law; Enabling
Statute; Equity; Evidence, Law of; Flag, Law of;
Foreign Laws; Forest Law; International Law;
Local Law; Maritime Law; Marque, Law of;
Martial Law; Mercantile Law; Military Law;
Moral Law; Municipal Law; Natural Law;
Oleron, Laws of; Organic Law; Parliamentary
Law; Penal Laws; Personal Law; Positive Law;
Private Law; Probate; Prospective Law; Public
Law; Remedial Statute; Retrospective Law;
Revenue Law; Road, Law of; Roman Law; Spe-
cial Law; Staple, Law of; Statute; Substantive
Law; Unwritten Law; War; Wisby, Laws of;
Written Law.
For "facts" and "law" as distinguishable, see
Fact.
LAW AGENTS. Solicitors practicing in the Scotch
courts.
LAW ALWAYS CONSTRUETH THINGS TO THE
BEST. Wing. Max. p. 720, max. 193.
LAW ARBITRARY. Opposed to immutable, a law
not founded in the nature of things, but imposed
by the mere will of the legislature.
LAW BURROWS. In Scotch law. Security for
the peaceable behavior of a party; security to
keep the peace. Properly, a process for obtain.
ing such security. 1 Forb. Inst. pt. 2, p. 198.
LAW CHARGES. This phrase is used, under
the buguisiana Civil Code, to signify costs incurred
in court in the prosecution of a suit, to be paid by
the party cast. Rousseau v. His Creditors, 17 La.
206; Barkley v. His Creditors, 11 Rob. (La.) 28.
LAW CONSTRUETH EVERY ACT TO BE LAW-
FUL, WHEN IT STANDETH INDIFFERENT
WHETHER IT SHOULD BE LAWFUL OR NOT.
Wing. Max. p. 722, max. 194; Finch, Law, b. 1, c.
3, n. 76.
LAW CONSTRUETH THINGS ACCORDING TO
COMMON POSSIBILITY OR INTENDMENT.
Wing. Max. p. 705, max. 189.
LAW [THE LAW] CONSTRUETH THINGS WITH
EQUITY AND MODERATION. Wing. Max. p.
685, max. 183; Finch, Law, b. 1, c. 3, n. 74.
LAW COURT OF APPEALS. In American law.
An appellate tribunal, formerly existing in the
state of South Carolina, for hearing appeals from
the courts of law.
LAW DAY. See Day.
LAW DEPARTMENT. Department having charge
of law business of government. People v. Board
of Education of City of Chicago, 345 Ill. 486, 178
N.E. 154, 156.
LAW DISFAVORETH IMPOSSIBILITIES. Wing.
Max. p. 606, max. 155.
LAW DISFAVORETH IMPROBABILITIES.
Wing. Max. p. 620, max. 161.
LAW ENFORCEMENT OFFICER. Those whose
duty it is to preserve the peace. Frazier v. El-
more, 180 Tenn. 232, 173 S.W.2d 563, 565.
LAW [THE LAW] FAVORETH CHARITY. Wing.
Max. p. 497, max. 135.
LAW FAVORETH COMMON RIGHT, Wing.
Max. p. 547, max. 144.
LAW FAVORETH DILIGENCE, AND THERE-
FORE HATETH FOLLY AND NEGLIGENCE.
Wing. Max. p. 665, max. 172; Finch, Law, b. 1, c.
3, no. 70.
LAW FAVORETH HONOR AND ORDER. Wing.
Max. p. 739, max. 199.
LAW FAVORETH JUSTICE AND RIGHT. Wing.
Max. p. 502, max. 141.
LAW FAVORETH LIFE, LIBERTY, AND DOW-
ER, 4 Bacon's Works, 345.
LAW FAVORETH MUTUAL RECOMPENSE.
Wing. Max. p. 411, max. 108; Finch, Law, b. 1, c.
3, no. 42.
LAW [THE LAW] FAVORETH POSSESSION,
WHERE THE RIGHT IS EQUAL. Wing. Max.
p. 375, max. 98; Finch, Law, b. 1, c. 3, no. 36.
LAW FAVORETH PUBLIC COMMERCE. Wing.
Max. p. 738, max. 198.
LAW FAVORETH PUBLIC QUIET. Wing. Max.
p. 742, max. 200; Finch, Law, b. 1, c. 3, no. 54.
LAW FAVORETH SPEEDING OF MEN'S CAUS-
ES. Wing. Max. p. 673, max. 175.
LAW [THE LAW] FAVORETH THINGS FOR
THE COMMONWEALTH, [COMMON WEAL.]
Wing. Max. p. 729, max. 197; Finch, Law, b. 1, c.
3, no. 53.
LAW FAVORETH TRUTH, FAITH, AND CER-
TAINTY. Wing. Max. p. 604, max. 154.
LAW FRENCH. The Norman French language,
introduced into England by William the Conquer.
or.
For several centuries, it was, in an emphatic sense, the
language of the English law. It is called by Blackstone a
"barbarous dialect," and the later specimens of it fully
warrant the appellation, but at the time of its introduction
it was, as has been observed, the best form of the lan-
guage spoken in Normandy. Burrill.
LAW HATETH DELAYS. Wing. Max. p. 674,
max. 176; Finch, Law, b. 1, c. 3, no. 71.
LAW HATETH NEW INVENTIONS AND IN-
NOVATIONS. Wing. Max. p. 756, max. 204.
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LAW HATETH WRONG
LAW HATETH WRONG. Wing. Max. p. 563,
max. 146; Finch, Law, b. 1, c. 3, no. 62.
LAW LATIN. The corrupt form of the Latin
language employed in the old English lawbooks
and legal proceedings.
LAW LIST. A publication compiling the names
and addresses of those engaged in the practice of
law and information of interest to the legal pro-
fession often including the courts, court calendars,
lawyers engaged in specialized fields (as admiral.
ty or patent law), public officers, stenographers,
handwriting experts, private investigators, or ab-
stracts of law; a legal directory.
An annual English publication of a quasi official
character, comprising various statistics of interest
in connection with the legal profession. Mozley &
Whiteley.
LAW LORDS. Peers in the British parliament
who have held high judicial office, or have been
distinguished in the legal profession. Mozley &
Whiteley.
LAW MARTIAL. See Martial Law.
LAW MERCHANT. See Mercantile Law.
LAW OF A GENERAL NATURE. One which
relates to a subject that may exist throughout
the state, Panhandle Eastern Pipe Line Co. v.
Board of Com'rs of Miami County, 151 Kan. 533,
99 P.2d 828, 829, 830; one whose subject-matter
is common to all the people. Panhandle Eastern
Pipe Line Co. v. Board of Com'rs of Miami Coun-
ty, 151 Kan. 533, 99 P.2d 828, 829.
LAW OF ARMS. See Arms, Law Of.
LAW OF CITATIONS. See Citations, Law Of.
LAW OF EVIDENCE. See Evidence, Law Of.
LAW OF ITSELF PREJUDICETH NO MAN.
Wing. Max. p. 575, max. 148; Finch, Law, b. 1, c.
3, no. 63.
LAW OF MARQUE. See Marque, Law Of.
LAW OF NATIONS. See International Law.
LAW OF NATURE. See Natural Law.
LAW OF THE CASE. The decision, judgment,
opinion or rulings on former appeal or writ of er-
ror become "law of the case." Massachusetts
Bonding & Insurance Co. v. Bankers' Surety Co.,
96 Ind.App. 250, 179 N.E. 329, 332; City of Shreve-
port v. Kansas City Southern Ry. Co., 193 La. 277,
190 So. 404, 406; Nolan v. Nolan's Adm'rs, 234 Ky.
50, 27 S.W.2d 408, 409; Machenheimer v. Falknor,
151 Wash. 447, 276 P. 297, 298; Tressler Coal Min.
Co. v. Klefeld, 125 W.Va. 301, 24 S.E.2d 98, 100; so,
too, a holding of an appellate court on writ of cer-
tiorari. Goodkind v. Wolkowsky, 147 Fla. 415, 2
Scii2d 723, 725; Atlantic Coast Line R. Co. v. Sper-
ry Flour Co., 63 Ga.App. 611, 11 S.E.2d 809, 811;
binding on subsequent appeal or writ of error.
George v. Atlanta & C. A. L. Ry. Co., 210 N.C. 58,
185 S.E. 431, 432; Elliott v. Moffet, Tex.Civ.App.,
165 S.W.2d 911, 912, 913; Moran v. Lecconv Smoke-
less Coal Co., 124 W.Va. 54, 18 S.E.2d 808, 813;
Hill v. Chappel Bros. of Montana, 97 Mont. 305,
33 P.2d 819, 820; or on subsequent proceedings or
trials in trial court, Oliver v. Muncy, 271 Ky. 15,
111 S.W.2d 392, 393; Sarson v. Mueller, 105 N.J.L.
212, 143 A. 428; State of Kansas ex rel. Beck v.
Occidental Life Ins. Co., C.C.A.Kan., 95 F.2d 935,
936; or in subsequent suit between same parties,
Oglethorpe University v. City of Atlanta, 180 Ga.
152, 178 s.a 156.
The doctrine expresses practice of courts gen-
erally to refuse to reopen what has been decided.
White v. Higgins, C.C.A.Mass., 116 F.2d 312, 317,
318; Perkins v. Vermont Hydro-Electric Corpora-
tion, 106 Vt. 367, 177 A. 631, 653; Fleming v. Camp-
bell, 148 Kan. 516, 83 P.2d 708, 709; it expresses
the rule that final judgment of highest court is
final determination of parties' rights. Atchison,
T. & S. F. Ry. Co. v. Railroad Commission of Cali-
fornia, 209 Cal. 460, 288 P. 775, 779.
The doctrine has reference to decisions on legal questions
and principles of law announced. Haynes Drilling Co. v.
Indian Territory Illuminating Oil Co., 185 Okl. 122, 90 P.2d
639, 640; and does not embrace questions of fact or deci-
sions on questions of fact. McNeely v. Connell, 87 Cal.
App. 87, 261 P. 754, 755. (But see holding that the de-
cision of appellate court on facts proved becomes "law
of the case". Cauldwell-Wingate Co. v. State, Ct.C1., 31
N.Y.S.2d 211, 213).
The doctrine includes all errors relied on for reversal,
whether mentioned in court's opinion or not, and all errors
lurking in record on first appeal, which might have been,
but were not, expressly relied on, Sowders v. Coleman,
223 Ky. 633, 4 S.W.2d 731, (but see holding that doctrine
does not extend to facts or points of law which might have
been but were not presented and determined on prior
appeal, Steelduct Co. v. Henger-Seltzer Co., Cal., 26 Ca1.2d
634, 160 P.2d 804, 809) ; all matters, issues or questions
actually decided on former appeal. Fleming v. Buerkli,
164 Wash. 136, 1 P.2d 915; all questions involved in judg-
ment, Helper State Bank v. Crus, 95 Utah 320, 81 P.2d 359,
361, 363; all questions involved on former appeal. whether
or not expressly mentioned in opinion, unless expressly
reserved, Martin v. Commonwealth, 265 Ky. 292, 96 S.W.2d
1011; all questions open expressly or by necessary implica-
tion decided on former appeal, Brown v. Brotherhood of
Railroad Trainmen, 186 Okl. 275, 97 P.2d 62; Miller v.
Sisters of St. Francis, 5 Wash.2d 204, 105 P.2d 32, 33;
Kuhns v. Live Stock Nat. Bank of Omaha, 138 Neb. 797,
295 N.W. 818, 819, 820; decision on sufficiency of evidence.
Wells v. Lloyd, 21 Ca1.2d 452, 132 P.2d 471, 474; every
applicable proposition of law actually applied to facts and
pleadings involved, Union Central Life Ins. Co. v. Trundle,
65 Ga.App. 553, 15 S.E.2d 909, 913; only facts appearing in
original opinion, Timm v. McCartney, 30 Cal.App.2d 241,
85 P.2d 920, 922; points presented on former appeal, lEtna
Life Ins. Co. v. Wharton, C.C.A.Ark., 63 F.2d 378, 379:
City of Sedalia ex rel. and to Use of Ferguson v. Shell
Petroleum Corporation, C.C.A.Mo., 81 F.2d 193, 196, 106
A.L.R. 1327; ruling on point distinctly made on former
appeal, People v. Marshall, 209 Cal. 540, 289 P. 629, 631:
statements in opinion on former appeal, if necessary to
decision of questions presented, Miller Cattle Co. v. Fran-
cis, Ariz., 298 P. 631, 632. It bars further adjudication in
identical proceeding or on same or substantially identical
facts or identical question, In re Norman's Estate, 161 Or.
450, 88 P.2d 977, 987.
The doctrine is generally deemed applicable whether
former determination is right or wrong. Wells v. Lloyd,
21 Ca1.2d 452, 132 P.2d 471, 474. But some cases hold
that doctrine is inapplicable where prior decision is
unsound, Standard Oil Co. of California v. Johnson, 56 Cal.
App.2d 411, 132 P.2d 910, 913; Atchison T. & S. F. Ry. Co.
v. Ballard, C.C.A.Tex., 108 F.2d 768, 772; or incorrect
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LAW OF THE LAND
principles were announced or mistake of fact was made on
first appeal. National Match Co. v. Empire Storage & Ice
Co., 227 Mo.App. 1115, 58 S.W.2d 797; Morris v. E. I. Du
Pont De Nemours & Co., 346 Mo. 126, 139 S.W.2d 984, 986,
129 A.L.R. 352.
The doctrine may be invoked unless evidence differs sub-
stantially, Chicago, St. P., M. & 0. Ry. Co. v. Kulp, C.C.A.
Minn., 102 F.2d 352, 354, 133 A.L.R. 1445; City of Louis-
ville v. Redmon, 282 Ky. 1, 137 S.W.2d 350, 351; New York
Life Ins. Co. v. Golightly, C.C.A.Ark., 94 F.2d 316, 319;
new pleadings and new evidence adduced on subsequent
trial call for different judgment, Maze v. Bennett, 117
W.Va. 165, 184 S.E. 564, 565; there has been a material
change in record, Reynolds v. Virginian Ry. Co., 117 W.Va.
359, 185 S.E. 568, 569; there has been a substantial change
in issues or evidence, Royal Collieries Co. v. Wells, 244
Ky. 303, 50 S.W.2d 948, 949.
It may be invoked where evidence or facts on subsequent
appeal or subsequent trial is substantially the same, Amer-
ican Railway Express Co. v. Cole, 185 Ark. 532, 48 S.W.2d
223; State v. Loveless, 62 Nev. 312, 150 P.2d 1015, 1016,
1018; Clark v. Los Angeles & Salt Lake R. Co., 73 Utah,
486, 275 P. 582, 584; New York Life Ins. Co. v. Ittner, 62
Ga.App. 31, 8 S.E.2d 582, 586; Amerada Petroleum Corpo-
ration v. Elliff, 171 Okl. 38, 41 P.2d 850. General principle
of law is declared as applicable to the facts of the case,
Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179, 1183;
pleadings and evidence were substantially the same, Lober
v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267, 268; ques-
tions of law and fact are the same. Helper State Bank v.
Crus, 95 Utah 320, 81 P.2d 359, 361, 363; record is substan-
tially identical with that in prior proceeding, Louisville
Trust Co. v. National Bank of Kentucky, C.C.A.Ky., 102
F.2d 137, 139; City of San Antonio v. McKenzie Const. Co.,
Tex.Civ.App., 138 S.W.2d 568, 576; Stuart C. Irby Co. v.
Smith, 205 Ark. 183, 168 S.W.2d 618, 619, 620.
The effect of "law of the case" is limited to court of
co-ordinate jurisdiction. Walker v. Gerli, 12 N.Y.S.2d 942,
944, 257 App.Div. 249.
Where appeal is not pursued, decision of intermediate
court is the "law of the case". State ex rel. Anderson
Motor Service Co. v. Public Service Commission, 234 Mo.
App. 470, 134 S.W.2d 1069, 1075.
"Law of the case" may signify, or be constituted
by, other matters or things.
It has been held that "law of the case" may include, or
be constituted by an agreement of arbitration, Acme Cut
Stone Co. v. New Center Development Corporation, 281
Mich. 32, 274 N.W. 700, 706, 112 A.L.R. 865; allegation of
complaint where not challenged below. Coulter v. Pome-
roy, 38 N.Y.S.2d 22, 23, 265 App.Div. 51; answer to certi-
fied question, City of Brunswick v. King, 65 Ga.App. 44, 14
S.E.2d 760, 763; findings of fact or of law by an auditor un-
less excepted to, Brothers and Sisters of Charity v. Renfroe,
57 Ga.App. 646, 196 S.E. 135; finding on first hearing af-
firmed on appeal. Stonega Coke & Coal Co. v. Price, C.C.A.
W.Va., 116 F.2d 618, 621; grant of temporary injunction
and continuance by Appellate Division, Walker Memorial
Baptist Church v. Saunders, 17 N.Y.S.2d 842, 847, 173 Misc.
455; holding in case not appealed from, Schul v. Clapp,
154 Kan. 372, 118 P.2d 570, 573; intention of testator as
expressed in will, Clauss v. Rohde, 133 N.J.Eq. 105, 30 A.2d
695; judgment which remains unreversed or to which no
exception has been taken, Palmer v. Jackson, 188 Ga. 336,
4 S.E.2d 28, 30; mandates of Supreme Court, People ex
rel. McLaren v. DeBoice, 377 Ill. 634, 37 N.E.2d 337, 340;
order not appealed, Foley v. Equitable Life Assur. Soc. of
the United States, 33 N.Y.S.2d 917, 918, 263 App.Div. 605;
Long v. Carolina Baking Co., 193 S.C. 225, 8 S.E.2d 326,
330, 331; order of trial court requiring amendment to peti-
tion, Martin v. Mayer, 63 Ga.App. 387, 11 S.E.2d 218, 226;
order requiring judgment debtor to make monthly pay-
ments on judgment, Ryan v. Edgerton, 30 N.Y.S.2d 941,
942, 177 Misc. 421; order that case automatically stand
dismissed unless plaintiff amends petition, Smith v. Atlanta
Gas-Light Co., 181 Ga. 479, 182 S.E. 603; ordinance admit-
ted by parties to be in force and to be accurately pleaded,
with defendant reserving only the question of admis-
sibility. Pane v. Wieland. 137 Ohio St. 198, 28 N.E.2d 583,
585; plaintiffs' theory where adopted by trial justice, Fer-
rier v. City of White Plains, 28 N.Y.S.2d 218, 220, 262 App.
Div. 94; portion of decree not appealed, Dawson County
Irr. Co. v. Stuart, 142 Neb. 428, 8 N.W.2d 507, 508; prior
decision of another judge of same court, United States
Industrial Chemicals v. Carbide & Carbon Chemicals Cor-
poration, D.C.N.Y., 52 F.Supp. 164, 165; referee's conclu-
sions where no exceptions taken, Cooper v. Baxley, 194 S.C.
270, 9 S.E.2d 721, 722; ruling upon demurrer, Sanik v.
Shryock Realty Co., 156 Kan. 641, 135 P.2d 545, 548; . Dar-
ling stores Corporation v. Beatus, 197 Ga. 125, 28 S.E.2d
124, 126; Wilkinson v. Wilkinson, 192 S.C. 497, 7 S.E.2d
447, 449, 450; ruling of trial court as to applicable statute,
Beck v. Baird, 238 Wis. 624, 300 N.W. 752, 754; ruling of
trial court to which no exception is taken, Perkins v. Ver-
mont Hydro-Electric Corporation, 106 Vt. 367, 177 A. 631,
654; ruling on motions to dismiss, Pathe Exchange v.
International Alliance of Theatrical Stage Employes and
Moving Picture Machine Operators of the United States
and Canada, Local No. 306, D.C.N.Y., 3 F.Supp. 63, 64;
ruling striking amendments to answer, Ford v. Jones, 66
Ga.App. 238, 17 S.E.2d 756, 757; stipulation, Mann v. R.
Simpson & Co., 286 N.Y. 450, 36 N.E.2d 658, 662; theory
acquiesced in by parties and court, Cote v. Boise, 111 Vt.
343, 16 A.2d 175, 177.
Instructions are the "law of the case." Douglas
v. Manfree Realty Corporation, 263 App.Div. 998,
33 N.Y.S.2d 423, 424; Selfe v. Fuller, 179 Va. 30,
18 S.E.2d 254, 256; whether right or wrong, Rog-
ers v. Jefferson, 223 Iowa 718, 272 N.W. 532, 533;
McClelland v. Interstate Transit Lines, 142 Neb,
439, 6 N.W.2d 384, 391; Buckin v. Long Island R.
Co., 286 N.Y. 146, 36 N.E.2d 88, 89.
It has been held that instructions are the "law of the
case" where appealing defendant accepted instructions as
correct, 'Etna Life Ins. Co. v. McAdoo, C.C.A.Ark., 115
F.2d 369, 370; approved on former appeal and given at
second trial, Whitehead v. Stith, 279 Ky. 556, 131 S.W.2d
455, 460; instruction given on first trial is corrected to
meet criticism made by Court of Appeals, Waddle v. Wil-
liams, 294 Ky. 66, 170 S.W.2d 886, 888. Instruction is unap-
pealed from, Stephenson v. W. R. Grimshaw Co., 148 Kan.
466, 83 P.2d 655, 656; instructions not challenged in any
manner or in any particular, Madison v. Hood, 207 Iowa
495, 223 N.W. 178, 179; no exception is made and they are
not assigned as error, New York Life Ins. Co. v. Stone,
C.C.A.Mass., 80 F.2d 614, 616; • Codd v. New York Under-
writers Ins. Co., 19 Wash.2d 671, 144 P.2d 234, 237; no
exceptions are taken, Miller v. Mohr, 198 Wash. 619, 89
P.2d 807, 814; Chancellor v. Hines Motor Supply Co., 104
Mont. 603, 69 P.2d 764, 769; Johnson v. Narragansett Fill-
ing Stations, R.I., 148 A. 901; no instructions are
requested nor exceptions taken, U. S. v. Hossmann, C.C.A.
Mo., 84 F.2d 808, 810; no objections are made, Brown v.
Waltrip, 167 Va. 293, 189 S.E. 342, 343; Kovaniemi v. Sher-
man, 192 Minn. 395, 256 N.W. 661; Pankey v. First Nat.
Bank, 40 N.M. 270, 58 P.2d 1186, 1188; only exception
pressed before Supreme Court was exception to denial of
motion for new trial based on usual grounds, Couture v.
Industrial Trust Co., 66 R.I. 395, 19 A.2d 772, 775. An
instruction excepted to by plaintiff is "law of the case" for
purpose of trial only. Klimaszewski v. Herrick, 32 N.Y.
S.2d 441, 442, 263 App.Div. 235. An instruction given at
request of defendant is "law of the case" on defendant's
appeal. Wood Towing Corporation v. West, 181 Va. 151,
23 S.E.2d 789, 791. Oral charge of court and special
charges given at request of parties constitute "law of
case". Franklin Fire Ins. Co. v. Slaton, 240 Ala. 560, 700
So. 564, 566. Portion of charge to which no exception was
made became the "law of the case." Morrison v. Bitting,
60 R.I. 325, 198 A. 355, 359.
LAW OF THE FLAG. See Flag, Law of.
LAW OF THE LAND. Due process of law (q. v.).
By the law of the land is most clearly intended
the general law which hears before it condemns,
which proceeds upon inquiry, and renders judg-
ment only after trial. Dupuy v. Tedora, 204 La.
560, 15 So.2d 886, 891. The meaning is that every
citizen shall hold his life, liberty, property, and
immunities under the protection of general rules
which govern society. Rich Hill Coal Co. v. Bra-
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LAW OF THE LAND
shore, 334 Pa. 449, 7 A.2d 302, 316; In re Stobie's
Estate, 30 Cal.App.2d 525, 86 P.2d 883, 885.
Everything which may pass under the form of an enact-
ment is not the law of the land. Sedg.St. & Const.Law,
(2d Ed.) 475. When first used in Magna Charta, the phrase
probably meant the established law of the kingdom, in
opposition to the civil or Roman law. It is now generally
regarded as meaning general public laws binding on all
members of the community. Janes v. Reynolds, 2 Tex. 251;
Beasley v. Cunningham, 171 Tenn. 334, 103 S.W.2d 18, 20,
110 A.L.R. 306. It means due process of law warranted by
the constitution, by the common law adopted by the con-
stitution, or by statutes passed in pursuance of the con-
stitution. Mayo v. Wilson, 1 N.H. 53.
LAW OF THE ROAD. See Road, Law of.
LAW OF THE STAPLE. See Staple, Law of.
LAW REPORTS. Published volumes containing
the reports of cases argued and adjudged in the
courts of law.
LAW RESPECTETH MATTER OF SUBSTANCE
MORE THAN MATTER OF CIRCUMSTANCE.
Wing. Max. p. 382, max. 101; Finch, Law, b. 1, c.
3, no. 39.
LAW RESPECTETH POSSIBILITY OF THINGS.
Wing. Max. p. 403, max. 104; Finch, Law, b. 1, c.
3, no. 40.
LAW [THE LAW] RESPECTETH THE BONDS
OF NATURE. Wing. Max. p. 268, max. 78; Finch,
Law, b. 1, c. 3, no. 29.
L 4.W SPIRITUAL. The ecclesiastical law, or law
Christian. Co. Litt. 344. See, also, .Ecclesiastical
Law.
LAW WORTHY. Being entitled to, or having the
benefit and protection of, the law.
LAWFUL. Legal; warranted or authorized by
the law; having the qualifications prescribed by
law; not contrary to nor forbidden by the law.
Ohio Automatic Sprinkler Co. v. Fender, 108 Ohio
St. 149, 141 N.E. 269, 275; McDonnell v. Murnan
Shipbuilding Corporation, 210 Ala. 611, 98 So. 887,
889; Hafner Mfg. Co. v. City of St. Louis, 262 Mo.
621, 172 S.W. 28, 33.
The principal distinction between the terms "lawful"
and "legal" is that the former contemplates the substance
of law, the latter the form of law. To say of an act that
it is "lawful" implies that it is authorized, sanctioned, or
at any rate not forbidden, by law. To say that it is
"legal" implies that it is done or performed in accordance
with the forms and usages of law, or in a technical man-
ner. In this sense "illegal" approaches the meaning of
"invalid." For example, a contract or will, executed with-
out the required formalities, might be said to be invalid or
illegal, but could not be described as unlawful. Further,
the word "lawful" more clearly implies an ethical content
than does "legal." The latter goes no further than to
denote compliance, with positive, technical, or formal
rules; while the former usually imports a moral substance
or ethical permissibility. A further distinction is that the
word "legal" is used as the synonym of "constructive,"
which "lawful" is not. Thus "legal fraud" is fraud im-
plied or inferred by law, or made out by construction.
"Lawful fraud" would be a contradiction of terms. Again,
"legal" is used as the antithesis of "equitable." Thus, we
speak of "legal assets," "legal estate," etc., but not of
"lawful assets," or "lawful estate." But there are some
connections in which the two words are used as exact
equivalents. Thus, a "lawful" writ, warrant, or process
is the same as a "legal" writ, warrant, or process.
LAWFUL AGE. Full age; majority; generally
the age of twenty-one years, though sometimes
eighteen as to a female. See McKim v. Handy, 4
Md.Ch. 237.
LAWFUL AUTHORITIES. The expression "law-
ful authorities," used in our treaty with Spain, re-.
fers to persons who exercised the power of mak-
ing grants by authority of the crown. Mitchel v.
U. S., 9 Pet. 711, 9 L.Ed. 283.
LAWFUL CAUSE. One supported by evidence
(Pub.Laws 1931, c. 1818, § 3). Girouard v. Board
of Police Com'rs of Central Falls, 52 R.I. 47, 157
A. 199, 200.
LAWFUL DAMAGES. Such damages as the law
fixes and are ascertainable in a court of law. Carr
v. U. S., D.C.Ky., 28 F.Supp. 236, 241.
LAWFUL DEPENDENTS. All dependents ex-
cept those who might occupy an unlawful rela-
tion to individual. National Council Junior Order
United American Mechanics v. Tate, 212 N.C. 305,
193 S.E. 397, 399, 113 A.L.R. 1514.
LAWFUL DISCHARGE. Such a discharge in in-
solvency as exonerates the debtor from his debts.
Mason v. Haile, 12 Wheat. 370, 6 L.Ed. 660.
LAWFUL ENTRY. An entry on real estate, by
one out of possession, under claim or color of right
and without force or fraud. See Stouffer v. Har-
lan, 68 Kan. 135, 74 P. 613, 64 L.R.A. 320, 104 Am.
St.Rep. 396.
LAWFUL GOODS. Whatever is not prohibited
to be exported by the positive law of the country,
even though it be contraband of war; for a neu-
tral has a right to carry such goods at his own risk.
Seton v. Low, 1 Johns.Cas., N.Y., 1; Skidmore v.
Desdoity, 2 Johns.Cas., N.Y., 77; Juhel v. Rhine-
lander, 2 Johns.Cas., N.Y., 120.
LAWFUL HEIRS, See Heir.
LAWFUL ISSUE. As used in will the words
primarily and generally mean descendants. In re
Marsh's Will, 143 Misc. 609, 257 N.Y.S. 514, 521;
they include descendants more remote than chil-
dren. In re Woodcock's Will, Sur., 55 N.Y.S.2d
656, 658. At common law, the term includes only
those who were children of legally recognized sub-
sisting marriage. In re Sheffer's Will, 139 Misc.
519, 249 N.Y.S. 102, 105. Lawful descendants. In
re Sheffer's Will, 139 Misc. 519, 249 N.Y.S. 102, 104.
LAWFUL MAN. A freeman, unattainted, and
capable of bearing oath; a legaltis homo.
LAWFUL MONEY. Money which is a legal ten-
der in payment of debts. Vick v. Howard, 136 Va.
101, 116 S.E. 465, 467, 31 A.L.R. 240; Dunlap v.
Whitmer, 133 La. 317, 62 So. 938, 942, Ann.Cas.
1915C, 990.
LAWFUL REPRESENTATIVES. Where real
property is involved as subject-matter, term "law-
ful representatives" includes or means legal heirs.
Where personal property is involved the term,
when not qualified by context, is limited to execu-
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LAYOFF
tors and administrators. Conley v. Jamison, 205
Iowa 1326, 219 N.W. 485, 486, 59 A.L.R. 835.
LAWING OF DOGS. The cutting several claws
of the forefeet of dogs in the forest, to prevent
their running at deer. Expeditation (q. v.).
LAWLESS. Not subject to law; not controlled by
law; not authorized by law; not observing the
rules and forms of law. See Arkansas v. Kansas
& T. Coal Co., C.C.Ark., 96 F. 362.
LAWLESS COURT. An ancient local English
court, said to have been held in Essex once a year,
at cock-crowing, without a light or pen and ink,
and conducted in a whisper. Jacob.
LAWLESS MAN. An outlaw.
LAWNDE, LOWNDE. In old English law. A
plain between woods. Co. Litt. 5b.
LAWS. Rules promulgated by government as a
means to an ordered society. Miami Laundry Co.
v. Florida Dry Cleaning & Laundry Board, 134
Fla. 1, 183 So. 759, 764, 119 A.L.R. 956. Session
laws or statutes and not decisions ofcourt. State
ex rel. Helena Allied Printing Council v. Mitchell,
Mont., 105 Mont. 326, 74 P.2d 417, 425. See, also,
Law.
LAWS OF ANOTHER STATE. Statutory laws
and laws established by judicial decisions. Hol-
derness v. Hamilton Fire Ins. Co. of New York,
D.C.Fla., 54 F.Supp. 145, 146.
LAWS OF THE SEVERAL STATES. As used in
conformity act, means local statutes and decisions
construing them, not decisions relating to matters
of general jurisprudence. Ford v. Grocers' Mut.
Ins. Co., D.C.Pa., 4 F.Supp. 911, 913. As used in
statute requiring federal courts to apply laws of
the several states, includes not only state statu-
tory law, but also state decisions on questions of
general law. Erie R. Co. v. Tompkins, N.Y., 304
U.S. 64, 58 S.Ct. 817, 822, 82 L.Ed. 1188, 114 A.L.R.
1487.
LAWS OF OLERON. See Oleron, Laws of.
LAWS OF WAR. See War.
LAWS OF WISBY. See Wisby, Laws of.
LAWSUIT. A vernacular term for a suit, action,
or cause instituted or depending between two pri-
vate persons in the courts of law. A suit at law
or in equity; an action or proceeding in a civil
court; a process in law instituted by one party
to compel another to do him justice. Shepherd v.
Standard Motor Co., 263 Ky. 329, 92 S.W.2d 337.
LAWYER. A person learned in the law; as an
attorney, counsel, or solicitor; a person licensed
to practice law.
Any person who, for fee or reward, prosecutes or defends
causes in courts of record or other judicial tribunals of the
United States, or of any of the states, or whose business it
is to give legal advice in relation to any cause or matter
whatever. Act of July 13, 1866, § 9, (14 St. at Large, 121.)
LAY, n. A share of the profits of a fishing or
whaling voyage, allotted to the officers and sea-
men, in the nature of wages. Coffin v. Jenkins,
5 Fed.Cas. 1190; Thomas v. Osborn, 19 How. 33,
15 L.Ed. 534.
LAY, adj. Relating to persons or things not cler-
ical or ecclesiastical; a person not in ecclesiastical
orders. Also non-professional.
LAY, v. To state or allege in pleading.
LAY CORPORATION. See Corporation.
LAY DAMAGES. To state at the conclusion of
the declaration the amount of damages which the
plaintiff claims.
LAY DAYS. In the law of shipping. Days allow-
ed to charter-parties for loading and unloading
the cargo. 3 Kent, Comm. 202, 203.
LAY FEE. A fee held by ordinary feudal tenure,
as distinguished from the ecclesiastical tenure of
frankalmoign, by which an ecclesiastical corpora-
tion held of the donor. The tenure of frankal-
moign is reserved by St. 12 Car. II., which abolish-
ed military tenures. 2 Bl.Comm. 101.
LAY IMPROPRIATOR. In English ecclesiastical
law. A lay person holding a spiritual appropria-
tion. 3 Steph.Comm. 72.
LAY INVESTITURE. In ecclesiastical law. The
ceremony of putting a bishop in possession of the
temporalities of his diocese.
LAY JUDGE. A judge who is not learned in the
law, i. e., not a lawyer; formerly employed in some
of the states as assessors or assistants to the pre-
siding judges in the nisi prius courts or courts of
first instance.
LAY OUT. This term has come to be used tech-
nically in highway laws as embracing all the ser-
ies of acts necessary to the complete establishment
of a highway. Graham County v. Dowell, 50 Ariz.
221, 71 P.2d 1019, 1020; Hitchcock v. Aldermen of
Springfield, 121 Mass. 382; Mansur v. County
Com'rs, 83 Me. 514, 22 A. 358. See Borrowdale
v. Board of County Com'rs of Socorro County, 23
N.M. 1, 163 P. 721, 723, L.R.A.1917E, 456; Patter-
son v. City of Baltimore, 130 Md. 645, 101 A. 589,
591.
LAY PEOPLE. Jurymen.
LAY SYSTEM. As applied to fishing vessels, the
fish caught are sold at auction and from the pro-
ceeds is deducted charges for supplies furnished
and balance distributed to the master and the crew.
The Dirigo First, D.C.Mass., 60 F.Supp. 675.
LAYE. L. Fr. Law.
LAYING THE VENUE. Stating in the margin of
a declaration the county in which the plaintiff pro-
poses that the trial of the action shall take place.
LAYMAN. One of the people, and not one of the
clergy; one who is not of the legal profession;
one who is not of a particular profession.
LAYOFF. A termination of employment at the
will of employer. International Ass'n of Machin-
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LAYSTALL
ists v. State ex rel. Watson, 153 Fla. 672, 15 So.2d
485, 490. Municipal employee who suffers a "lay-
off" suffers a "suspension." State ex rel. Ausburn
v. City of Seattle, 190 Wash. 222, 67 P.2d 913, 921,
111 A.L.R. 418.
LAYSTALL. A place for dung or soil.
LAZARET, or LAZARETTO. A pesthouse, or
public hospital for persons affected with the more
dangerous forms of contagious diseases; a quar-
antine station for vessels coming from countries
where such diseases are prevalent.
LAllI. A Saxon term for persons of a servile
condition.
LE CONGRES. A species of proof on charges of
impotency in France, coitus coram testibus. Abol-
ished A.D. 1677.
LE CONTRAT FAIT LA LOI. The contract
makes the law.
LE GUIDON DE LA MER. The title of a French
work on marine insurance, by an unknown author,
dating back, probably, to the sixteenth century,
and said to have been prepared for the merchants
of Rouen. It is noteworthy as being the earliest
treatise on that subject now extant.
LE LEY DE DIEU ET LEY DE TERRE SONT
TOUT UN; ET L'UN ET L'AUTRE PREFERRE
ET FAVOUR LE COMMON ET PUBLIQUE BIEN
DEL TERRE. The law of God and the law of
the land are all one; and both preserve and favor
the common and public good of the land. Keilw.
191.
LE LEY EST LE PLUS HAUT ENHERITANCE
QUE LE ROY AD, CAR PER LE LEY IL MESME
ET TOUTS SES SUJETS SONT RULES; ET, SI
LE LEY NE FUIT, NUL ROY NE NUL ENHER-
ITANCE SERRA. 1 J.H. 6, 63. The law is the
highest inheritance that the king possesses, for
by the law both he and all his subjects are ruled;
and, if there were no law, there would be neither
king nor inheritance.
LE ROI, or ROY. The old law-French words for
"the king."
LE ROI VEUT EN DELIBERER. The king will
deliberate on it. This is the formula which the
king of the French used when he intended to veto
an act of the legislative assembly. 1 Toullier, no.
42.
LE ROY (or LA REINE) LE VEUT. The king
(or the queen) wills it. The form of the royal
assent to public bills in parliament.
LE ROY (or LA REINE) REMERCIE SES LOYAL
SUJETS, ACCEPTE LEUR BENEVOLENCE, ET
AINSI LE VEUT. The king (or the queen)
thanks his (or her) loyal subjects, accepts their
benevolence, and therefore wills it to be so. The
form of the royal assent to a bill of supply.
LE ROY (or LA REINE) S'AVISERA. The king
(or queen) will advise upon it. The form of words
used to express the refusal of the royal assent to
public bills in parliament. 1 Bl.Comm. 184. This
is supposed to correspond to the judicial phrase
"curia advisari vult," (q. v.). 1 Chit.B1.Comm. 184,
note.
LE SALUT DU PEUPLE EST LA SUPREME
LOI. Montesq. Esprit des Lois, 1. xxvii, c. 23. The
safety of the people is the highest law.
LEA, or LEY. A pasture. Co.Litt. 4b.
LEAD. The counsel on either side of a litigated ac-
tion who is charged with the principal management
and direction of the party's case, as distinguished
from his juniors or subordinates, is said to "lead in
the cause," and is termed the "leading counsel" on
that side.
LEADING A USE. Where a deed was executed be-
fore the levy of a fine of land, for the purpose of
specifying to whose use the fine should inure, it
was said to "lead" the use. If executed after the
fine, it was said to "declare" the use. 2 Bl.Comm.
363.
LEADING CASE. Among the various cases that
are argued and determined in the courts, some,
from their important character, have demanded
more than usual attention from the judges, and
from this circumstance are frequently looked upon
as having settled or determined the law upon all
points involved in such cases, and as guides for
subsequent decisions, and from the importance
they thus acquire are familiarly termed "leading
cases." Brown.
LEADING COUNSEL. That one of two or more
counsel employed on the same side in a cause who
has the principal management of the cause.
LEADING QUESTION. One which instructs wit-
ness how to answer or puts into his mouth words
to be echoed back, People v. Hamilton, Gen.Sess.,
30 N.Y.S.2d 155, 158; one which suggests to wit-
ness answer desired. Little v. State, 79 Okl.Cr.
285, 154 P.2d 772, 777; State v. Scott, 20 Wash.
2d 696, 149 P.2d 152, 153, 154; Landers v. State,
118 Tex.Cr.R. 608, 39 S.W.2d 43, 44.
Questions are leading which suggest to the witness the
answer desired, or which embody a material fact, and may
be answered by a mere negative or affirmative, or which
involve an answer bearing immediately upon the merits of
the cause, and indicating to the witness a representation
which will best accord with the interests of the party pro-
pounding them. Turney v. State, 8 Smedes & M., Miss.,
104, 47 Am.Dec. 74.
A question is leading which puts into a witness' mouth
the words that are to be echoed back, or plainly suggests
the answer which the party wishes to get from him. Peo-
ple v. Mather, 4 Wend., N.Y., 229, 247, 21 Am.Dec. 122.
That question may be answered either yes or no does
not necessarily make it leading, Foster v. Sol Greisler &
Sons, 150 Pa.Super. 509, 29 A.2d 103, 106; Osterloh v. San
Antonio Public Service Co., Tex.Civ.App., 77 S.W.2d 290,
292.
LEAGUE. 1. A treaty of alliance between dif-
ferent states or parties.
2. A measure of distance, varying in different
countries.
It may be offensive or defensive, or both. It is offensive
when the contracting parties agree to unite in attacking a
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common enemy; defensive when the parties agree to act
in concert in defending each other against an enemy.
Wharton.
The marine league, marking the limit of national juris-
diction on the high seas, is equal to three geographical (or
marine) miles of 6,075 feet each.
In Spanish and Mexican law, the league, as a legal meas-
ure of length, consisted of 5,000 varas, and a vara was
equivalent to 33% English inches, making the league equal
to a little more than 2.63 miles, and the square league
equal to 4,428 acres. This is its meaning as used in Texas
land grants. United States v. Perot, 98 U.S. 428, 25 L.Ed.
251; Hunter v. Morse, 49 Tex. 219. "League and labor,"
an area of land equivalent to 4,605 acres. Ammons v.
Dwyer, 78 Tex. 639, 15 S. W. 1049. See Labor.
LEAKAGE. The waste or diminution of a liquid
caused by its leaking from the cask, barrel, or oth-
er vessel in which it was placed.
Also an allowance made to an importer of liq-
uids, at the custom-house, in the collection of du-
ties, for his loss sustained by the leaking of the
liquid from its cask or vessel.
LEAL. L. Fr. Loyal; that which belongs to the
law.
LEALTE. L. Fr. Legality; the condition of a
legalis homo, or lawful man.
LEAN. To incline in opinion or preference.
A court is sometimes said to "lean against" a doctrine,
construction, or view contended for, whereby it is meant
that the court regards it with disfavor or repugnance,
because of its inexpedience, injustice, or inconsistency.
LEAP-YEAR. See Bissextile.
LEARN. To gain knowledge or information of;
to ascertain by inquiry, study, or investigation.
Fletcher Savings & Trust Co. v. American Surety
Co. of New York, 92 Ind.App. 651, 175 N.E. 247,
251; Rambo v. Rambo, 245 Ala. 98, 16 So.2d 4, 5.
LEARNED. Possessing learning; erudite; versed
in the law; informed.
In statutes prescribing the qualifications of judges,
"learned in the law" designates one who has received a
regular legal education, the almost invariable evidence of
which is the fact of his admission to the bar. See Jamie-
son v. Wiggin, 12 S.D. 16, 80 N.W. 137, 46 L.R.A. 317, 76
Am.St.Rep. 585; O'Neal v. McKinna, 116 Ala. 620, 22 So.
905; Potter v. Robbins, 155 Tenn. 1, 290 S.W. 396, 399;
Heard v. Moore, 154 Tenn. 566, 290 S. W. 15, 16, 50 A.L.R.
1152.
LEARNING. Legal doctrine. 1 Leon. 77.
LEASE. Any agreement which gives rise to re-
lationship of landlord and tenant. Smith v. Royal
Ins. Co., C.C.A.Cal., 111 F.2d 667, 671. Any grant
of permissive use. People v. City of Chicago, 349
Ill. 304, 182 N.E. 419, 434.
Contract for exclusive possession of lands or ten-
ements for determinate period. Barnett v. Lin-
coln, 162 Wash. 613, 299 P. 392, 394. Contract for
possession and profits of lands and tenements ei-
ther for life, or for certain period of time, or dur-
ing the pleasure of the parties, Femmer v. City of
Juneau, C.C.A.Alaska, 97 F.2d 649, 657; Smith
v. Royal Ins. Co., D.C.Cal., 5 F.Supp. 435, 437;
Intermountain Realty Co. v. Allen, 60 Idaho 228,
90 P.2d 704, 706, 122 A.L.R. 647. Contract for
possession and profits of property for a recom•
pense. White v. City of Grand Rapids, 244 N.W.
469, 260 Mich. 267; Stone v. City of Los Angeles,
114 Cal.App. 192, 299 P. 838, 840; Clark v. Harry,
182 Va. 410, 29 S.E.2d 231, 233. Conveyance,
grant or devise of realty for designated period
with reversion to grantor. Becker v. Manufac-
turers Trust Co., 262 App.Div. 525, 30 N.Y.S.
2d 542, 544; Moore v. Brandenberg, 234 Ky.
400, 28 S.W.2d 477, 478; Lewes Sand Co. v.
Graves, Del., 1 Terry 189, 8 A.2d 21, 24. Con-
veyance of interest in real property for specified
period or at will, Minneker v. Gardiner, 47 Ohio
App. 203, 191 N.E. 793. Conveyance or grant
of estate in real property for limited term with
conditions attached, State ex rel. St. Louis County
v. Evans, 246 Mo. 209, 139 S.W.2d 967, 969; Hol-
combe v. Lorino, 124 Tex. 446, 79 S.W.2d 307, 310;
Dean v. Brower, 119 Cal.App. 412, 6 P.2d 580, 581.
Conveyance, usually in consideration of rent or
other recompense, for life, years, or at will. Smith
v. Royal Ins. Co., C.C.A.Cal., 111 F.2d 667, 671;
Clark v. Harry, 182 Va. 410, 29 S.E.2d 231, 233;
but always for a less time than lessor has in the
premises, Leonard v. Autocar Sales & Service Co.,
325 Ill.App. 375, 60 N.E.2d 457, 462; Union Central
Life Ins. Co. of Cincinnati, Ohio, v. Goode, 222
Iowa 716, 269 N.W. 762, 764. Grant of use and
possession, in consideration of something to be
rendered, Ottman v. Albert Co., 327 Pa. 49, 192 A.
897, 899.
A contract in writing, under seal, whereby a person hav-
ing a legal estate in hereditaments, corporeal or incorpo-
real, conveys a portion of his interest to another, in con-
sideration of a certain annual rent or render, or other
recompense. Archb.Landl. & Ten. 2.
Instrument granting exclusive possession or control of
premises, or portion, though use be restricted by reserva-
tions, will be considered lease, Barnett v. Lincoln, 162
Wash. 613, 299 P. 392, 394.
"Lease" or "hire" is a synallagmatic contract, to which
consent alone is sufficient, and by which one party gives
to the other the enjoyment of a thing, or his labor, at a
fixed price. Civil Code La. art. 2669.
Oral agreement whereby property owner for fixed con-
sideration gave another trapping privileges on his lands for
trapping season held contract of "lease." Defelice v.
Autin, La.App., 159 So. 648, 649.
The person who conveys is termed the "lessor," and the
person to whom they are conveyed, the "lessee;" and
when the lessor conveys lands or tenements to a lessee, he
is said to lease, demise, or let them. 4 Cruise, Dig. 58:
U. S. Nat. Bank of La Grande v. Miller, 122 Or. 285, 258
P. 205, 207, 58 A.L.R. 339; Howard v. Manning, 79 Okl.
165, 192 P. 358, 360, 79 A.L.R. 819. The word when used
as verb, means to transfer for term specified therein from
lessor to lessee property therein demised, also to let, to
farm out, to rent; and there is authority for view that
word "lease" may properly be used in two senses, first, in
describing act of lessor in giving lease, and again in
describing act of lessee in taking lease. Stone v. City of
Los Angeles, 114 Cal.App, 192, 299 P. 838, 841.
The term embraces what are described as the covenants
of the lease. Goldberg v. Grossman, 105 Pa.Super. 50, 160
A. 138, 139.
Whatever is sufficient to show that one party shall divest
himself of possession and the other party shall come into
it for a determinate time and for a fixed rental amounts to
a lease. General American Life Ins. Co. v. North American
Mfg. Co., 320 Ill.App. 488, 51 N.E.2d 619.
When the contract is bipartite the one part is called the
"lease", the other the "counterclaim."
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Concurrent Lease
One granted for a term which is to commence before the
expiration sr other determination of a previous lease of
the same premises made to another person; or, in other
words, an assignment of a part of the reversion, entitling
the lessee to all the rents accruing on the previous lease
after the date of his lease and to appropriate remedies
against the holding tenant. Cargill v. Thompson, 57 Minn.
'534, 59 N.W. 638.
Farm Lease
See Farm Lease.
Lease and Release
A species of conveyance much used in England, said to
have been invented by Serjeant Moore, soon after the
enactment of the statute of uses. It is thus contrived: A.
lease, or rather bargain and sale upon some pecuniary con-
sideration for one year, is made by the tenant of the
freehold to the lessee or bargainee. This, without any
enrolment, makes the bargainor stand seised to the use of
the bargainee, and vests in the bargainee the use of the
term for one year, and then the statute immediately
annexes the possession. Being thus in possession, he is
capable of receiving a release of the freehold and rever-
sion, which must be made to the tenant in possession, and
accordingly the next day a release is granted to him. The
lease and release, when used as a conveyance of the fee,
have the joint operation of a single conveyance. 2 Bl.
Comm. 339; 4 Kent, Comm. 482; Co.Litt. 207; Cruise,
Dig. tit. 32, c. 11.
Mining Lease
See Mining.
Parol Lease
A lease of real estate not evidenced by writing, but
resting in an oral agreement.
Perpetual Lease
A lease of lands which may last without limitation as to
time; a grant of lands in fee with the reservation of a
rent in fee; a fee-farm. Edwards v. Noel, 88 Mo.App. 434.
Sublease, or Underlease
One executed by the lessee of an estate to a third person,
conveying the same estate for a shorter term than that
for which the lessee holds it. The distinction between an
assignment of a term for years and a sublease or sublet-
ting is that if the lessee parts with his entire interest in
the term, it constitutes an assignment and not a subletting,
although the transfer is in form a sublease; but if the
lessee reserves to himself a reversionary interest in the
term, it constitutes a sublease, whatever the form of the
transfer. Johnson v. Thompson, 185 Ala. 666, 64 So. 554,
555; Weigle v. Rogers, 202 Mo.App. 520, 213 S.W. 501, 502;
Holden v. Tidwell, 37 Okl. 553, 133 P. 54, 55, 49 L.R.A.,
N.S., 369, Ann.Cas.1915C, 394; Davis v. First Nat. Bank,
Tex.Civ.App., 258 S.W. 241, 242.
For "Extension of lease," see Extension.
LEASEHOLD. An estate in realty held under a
lease; an estate for a fixed term of years. See
Stubbings v. Evanston, 136 Ill. 37, 26 N.E. 577, 11
L.R.A. 839, 29 Am.St.Rep. 300; Washington F. Ins.
Co. v. Kelly, 32 Md. 421, 3 Am.Rep. 149; Greene
Line Terminal Co. v. Martin, 122 W.Va. 483, 10 S.E.
2d 901, 903. Right of tenant at will is "leasehold."
Public Service Co. of New Hampshire v. Voudou-
mas, 84 N.H. 387, 151 A. 81, 83, 70 A.L.R. 480.
LEASING, or LESING. Gleaning.
LEASING-MAKING. In old Scotch criminal law.
An offense consisting in slanderous and untrue
speeches, to the disdain, reproach, and contempt of
the king, his council and proceedings, etc. Bell.
LEAUTE. L. Fr. Legality; sufficiency in law.
Britt. c. 109.
LEAVE. Give. Grimes v. Crouch, 175 Va. 126, 7
S.E.2d 115, 117.
To allow or cause to remain; to let remain un-
moved or undone; to refrain from or neglect tak-
ing, doing, or changing; to let stay or continue;
to let be without interference; to suffer to remain
subject to another's action, control, or the like;
to suffer to be undisturbed in action. Collins v.
Hartford Accident & Indemnity Co., 178 Va. 501,
17 S.E.2d 413, 418.
To give or dispose of by will; to bequeath or
devise. Townsend v. Gordon, 308 Mich. 438, 14
N.W.2d 57, 60; Williams v. McPherson, 216 N.C.
565, 5 S.E.2d 830, 831. "The word 'leave,' as ap-
plied to the subject-matter, prima facie means a
disposition by will." Thorley v. Thorley, 10 East,
438; Carr v. Effinger, 78 Va. 203.
To put, place, deposit, deliver, or the like.
Jaggers v. Southeastern Greyhound Lines, D.C.
Tenn., 34 F.Supp. 667, 668; Stafford v. Consolidat-
ed Bus Lines, 179 Tenn. 185, 164 S.W.2d 15, 16;
Collins v. Hartford Accident & Indemnity Co., 178
Va. 501, 17 S.E.2d 413, 418, 137 A.L.R. 1046.
Willful departure with intent to remain away,
and not temporary absence with intention of re-
turning. Landreth v. Casey, 340 Ill. 519, 173 N.E.
84, 85.
LEAVE AND LICENSE. A defense to an action
in trespass setting up the consent of the plaintiff
to the trespass complained of.
LEAVE NO ISSUE. Not survived by a child or
children or their descendants. A spouse of a de-
ceased child is not "issue" (q. v.). In re Vigil's
Estate, 38 N.M. 383, 34 P.2d 667, 668, 93 A.L.R.
1506.
LEAVE OF ABSENCE. Temporary absence from
duty with intention to return during which time
remuneration is suspended, State ex rel. Mc-
Gaughey v. Grayston, 349 Mo. 700, 163 S.W.2d
335, 341.
LEAVE OF COURT. Permission obtained from a
court to take some action which, without such per-
mission, would not be allowable; as, to sue a re-
ceiver, to file an amended pleading, to plead sev-
eral pleas. See Copperthwait v. Dummer, 18 N.J.
L. 258.
LEAVE TO DEFEND. The bills of exchange act
1855 (18 & 19 Vict. c. 67) allowed actions on bills
and notes commenced within six months after be-
ing due to be by writ of summons in a form pro-
vided by the act, and unless the defendant should
within twelve days obtain leave to appear and de-
fend the action, allowed the plaintiff to sign judg-
ment on proof of service. This procedure was re-
tained by the judicature act, but abolished in 1880.
Whart. Lex.
LECCATOR. A debauched person. Cowell.
LECHERWITE, LAIRWITE, or LEGERWITE. A
fine for adultery or fornication, anciently paid to
the lords of certain manors. 4 Inst. 206.
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LECTOR DE LETRA ANTIQUA. In Spanish law.
A person appointed by competent authority to read
and decipher ancient writings, to the end that they
may be presented on the trial of causes as docu-
ments entitled to legal credit. Escriche.
LECTORES. A term applied to notaries in the
Middle Ages. So.Afr.Law Dict.
LECTRINUM. A pulpit. Mon.Angl. tom. iii. p.
243.
LECTURER. An instructor; a reader of lectures;
also a clergyman who assists rectors, etc., in
preaching, etc.
LEDGE. In mining law. This term, as used in the
mining laws of the United States (Rev.St. § 2322,
30 U.S.C.A. § 26) and in both legal and popular us-
age in the western American states, is synonymous
with "lode," which see. Myers v. Lloyd, 4 Alaska,
263, 265.
LEDGER. A book of accounts in which a trader
enters the names of all persons with whom he has
dealings; there being two parallel columns in each
account, one for the entries to the debit of the
person charged, the other for his credits. Into this
book are posted the items from the day-book or
journal.
A "ledger" is the principal book of accounts of a busi-
ness establishment in which all the transactions of each
day are entered under appropriate heads so as to show at
a glance the debits and credits of each account. Foothill
Ditch Co. v. Wallace Ranch Water Co., 25 Cal.App.2d 555,
78 P.2d 215, 220.
LEDGER-BOOK. In ecclesiastical law. The name
of a book kept in the prerogative courts in Eng-
land. It is considered as a roll of the court, but,
it seems, it cannot be read in evidence. Bac.Abr.
LEDGREVIUS. In old English law. A lathereeve,
or chief officer of a lathe. Spelman.
LEDO. The rising water or increase of the sea.
LEE3IAN'S ACTS. Acts 30 Vict. c. 29 and 35 &
36 Vict. c. 91, by which contracts for the sale of
bank shares are void unless the number of the
shares are set forth in the contract. 9 Q.B.D. 546;
and by which are authorized the application of the
funds of municipal corporations and other govern-
ing bodies under certain conditions towards pro-
moting or opposing parliamentary and other
proceedings for the benefit or protection of the
inhabitants.
LEET. In English law. The name of a court of
criminal jurisdiction, formerly of much impor-
tance, but latterly fallen into disuse. See Court-
Leet.
LEETS. Meetings which were appointed for the
nomination or election of ecclesiastical officers in
Scotland. Cowell.
LEFT. To let remain or have remaining at death;
to transmit, bequeath or give by will. Grimes v.
Crouch, 175 Va. 126, 7 S.E.2d 115, 117.
LEGA, or LACTA. The alloy of money. Spelman.
LEGABILIS. In old English law. That which may
be bequeathed. Cowell.
LEGACY. A disposition of personally by will.
In re Johnson's Estate, 220 Iowa 424, 262 N.W.
811; Hill v. Van Sant, 133 N.J.Eq. 133, 30 A.2d
904, 906; Stubbs v. Abel, 114 Or. 610, 233 P. 852,
858; State, for Use of Woodlands Cemetery Co.
of Philadelphia v. Lodge, 2 Terry 125, 16 A.2d
250.
"Legacy" and "bequest" are equivalent terms. But in
strict common-law terminology "legacy" and "devise" do
not mean the same thing and are not interchangeable, lat-
ter being properly used only in relation to real estate.
But by construction the word "legacy" may be so extended
as to include realty or interests therein. See In re Ross's
Estate, 140 Cal. 282, 73 P. 976; Bacon v. Bacon, 55 Vt. 247;
Roth's Appeal, 94 Pa. 191; Williams v. McComb, 38 N.C.
455; In re Stuart's Will, 115 Wis. 294, 91 N.W. 688.
Absolute Legacy
One given without condition and intended to vest imme-
diately.
Accumulative Legacy
A second, double, or additional legacy; a legacy given in
addition to another given by the same instrument, or by
another instrument.
Additional Legacy
One given to the same legatee in addition to (and not in
lieu of) another legacy given before by the same will or in
a codicil thereto.
Alternate Legacy
One by which the testator gives one of two or more
things without designating which.
Conditional Legacy
One which is liable to take effect or to be defeated
according to the occurrence or non-occurrence of some
uncertain event. Harker v. Smith, 41 Ohio St. 238, 52
Am. Rep. 80; Markham v. Hufford, 123 Mich. 505, 82 N.W.
222, 48 L.R.A. 580, 81 Am.St.Rep. 222.
Contingent Legacy
A legacy given to a person at a future uncertain time,
that may or may not arrive; as "at his age of twenty-
one," or "if" or "when he attains twenty-one." 2 Bl.
Comm. 513; 2 Steph.Comm. 259. A legacy made depend-
ent upon some uncertain event. 1 Rop.Leg. 506. A legacy
which has not vested. In re Engles' Estate, 166 Pa. 280,
31 A. 76; Andrews v. Russell, 127 Ala. 195, 28 So. 703;
Rubencane v. McKee, 6 Del.Ch. 40, 6 A. 639.
Cumulative Legacies
These are legacies so called to distinguish them from
legacies which are merely repeated. In the construction of
testamentary instruments, the question often arises wheth-
er, where a testator has twice bequeathed a legacy to the
same person, the legatee is entitled to both, or only to one
of them; in other words, whether the second legacy must
be considered as a mere repetition of the first, or as cumu-
lative, i. e., additional. In determining this question, the
intention of the testator, if it appears on the face of the
instrument, prevails. Wharton.
Demonstrative Legacy
A bequest of a certain sum of money, with a direction
that it shall be paid out of a particular fund. It differs
from a specific legacy in this respect : that, if the fund out
of which it is payable fails for any cause, it is neverthe-
less entitled to come on the estate as a general legacy.
And it differs from a general legacy in this: that it does
not abate in that class, but in the class of specific legacies.
Kenaday v. Sinnott, 179 U.S. 606, 21 S.Ct. 233, 45 L.Ed. 339;
Spinney v. Eaton, 111 Me. 1, 87 A. 378, 380, 46 L.R.A.,N.S.,
535; In re Douglas' Estate, 149 Minn. 276, 183 N.W. 355,
356; In re Wilson's Estate, 260 Pa. 407, 103 A. 880, 6
A.L.R. 1349; Baker v. Baker, 319 Ill. 320, 150 N.E. 284,
285, 42 A.L.R. 1514. A legacy of quantity is ordinarily a
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general legacy; but there are legacies of quantity in the
nature of specific legacies, as of so much money, with
reference to a particular fund for payment. This kind of
legacy is called by the civilians a "demonstrative legacy,"
and it is so far general and differs so much in effect from
one properly specific that, if the fund be called in or fail,
the legatee will not be deprived of his legacy, but be per-
mitted to receive it out of the general assets; yet the leg-
acy is so far specific that it will not be liable to abate with
general legacies upon a deficiency of assets. 2 Williams,
Ex'rs, 1078.
General Legacy
A pecuniary legacy, payable out of the general assets of
a testator. 2 Bl.Comm. 512; Ward.Leg. 1, 16. One so
given as not to amount to a bequest of a particular thing
or particular money of the testator, distinguished from
others of the same kind; one of quantity merely, not spe-
cific. Evans v. Hunter, 86 Iowa 413, 53 N.W. 277, 17 L.R.A.
308, 41 Am.St.Rep. 503; Gardner v. Viall, 36 R.I. 436, 90
A. 760, 762; Spinney v. Eaton, 111 Me. 1, 87 A. 378, 380, 46
L.R.A.,N.S., 535; Guthie v. Guthrie's Ex'r, 168 Ky. 805,
183 S.W. 221, 224; School Dist. No. 1 in City and County
of Denver v. International Trust Co., 59 Colo. 486, 149 P.
620, 623.
Indefinite Legacy
One which passes property by a general or collective
term, without enumeration of number or quantity; as, a
bequest of "all" the testator's "goods," or his "bank
stock." Lown.Leg. 84.
Lapsed Legacy
Where the legatee dies before the testator, or before the
legacy is payable, the bequest is said to lapse, as it then
falls into the residuary fund of the estate.
Modal Legacy
A bequest accompanied by directions as to the mode or
manner in which it 'shall be applied for the legatee's bene-
fit, e. g., a legacy to A. to buy him a house or a commission
in the army. See Lown.Leg. 151.
Pecuniary Legacy
A bequest of a sum of money, or of an annuity. It may
or may not specify the fund from which it is to be drawn.
It is not the less a pecuniary legacy if it comprises the
specific pieces of money in a designated receptacle, as a
purse or chest. See Humphrey v. Robinson, 52 Hun, 200,
5 N.Y.S. 164; Lang v. Ropke, 10 N.Y.Leg.Obs. 75; Mathis
v. Mathis, 18 N.J.L. 66.
Residuary Legacy
A bequest of all the testator's personal estate not other-
wise effectually disposed of by his will; a bequest of "all
the rest, residue, and remainder" of the personal property
after payment of debts and satisfaction of the particular
legacies. See In re Williams' Estate, 112 Cal. 521, 44 P.
808, 53 Am.St.Rep. 224; Stubbs v. Abel, 114 Or. 610, 233
P. 852, 857.
Special Legacy
A "specific legacy" (q. v.) is sometimes so called.
Specific Legacy
One which operates on property particularly designated.
Hart v. Brown, 145 Ga. 140, 88 S.E. 670, 671; Spinney v.
Eaton, 111 Me. 1, 87 A. 378, 380, 46 L.R.A.,N.S., 535; Bales
v. Murray, 186 Iowa 649, 171 N.W. 747, 749; Baker v.
Baker, 319 Ill. 320, 150 N.E. 284, 285, 42 A.L.R. 1514;
School Dist. No. 1 in City and County of Denver v. Inter-
national Trust Co., 59 Colo. 486, 149 P. 620, 623. A legacy
or gift by will of a particular specified thing, as of a horse,
a piece of furniture, a term of years, and the like. Mor-
riss v. Garland, 78 Va. 222. In a strict sense, a legacy of a
particular chattel, which is specified and distinguished
from all other chattels of the testator of the same kind;
as of a horse of a certain color. A legacy of a quantity of
chattels described collectively; as a gift of all the testa-
tor's pictures. Ward, Leg. 16-18. A legacy is specific,
when it is limited to a particular thing, subject, or chose
in action, so identified as to render the bequest inapplica-
ble to any other; as the bequest of a horse, a picture, or
jewel, or a debt due from a person named, and, in special
cases, even of a sum of money. In re Daniels' Estate, 192
Iowa 326, 184 N.W. 647, 650; Baker v. Baker, 319 Ill. 320,
150 N.E. 284, 285, 42 A.L.R. 1514; Carpenter's Estate v.
Wiley, 166 Iowa, 48, 147 N.W. 175, 177; Langdon v. Astor,
3 Duer, N.Y., 477, 543.
Trust Legacy
A bequest of personal property to trustees to be held
upon trust; as, to pay the annual income to a beneficiary
for life.
Universal Legacy
In the civil law. A testamentary disposition by which
the testator gives to one or several persons the whole of
the property which he leaves at his decease. Civ.Code La.,
art. 1606.
LEGACY DUTY. A duty imposed in England upon
personal property (other than leaseholds) devolv-
ing under any will or intestacy. Brown.
LEGACY OR SUCCESSION TAX. An excise, on
privilege of taking property by will or inheritance
or by succession on death of owner. In re Ros-
ing's Estate, 337 Mo. 544, 85 S.W.2d 495, 496; State
Tax Commission v. Backman, 88 Utah 424, 55 P.2d
171, 174.
LEGAL. 1. Conforming to the law; according to
law; required or permitted by law; not forbidden
or discountenanced by law; good and effectual
in law. Freeman v. Fowler Packing Co., 135 Kan.
378, 11 P.2d 276, 277; General Motors Acceptance
Corporation v. Schwartz, 118 N.J.L. 25, 190 A. 625,
627.
2. Proper or sufficient to be recognized by the
law; cognizable in the courts; competent or ade-
quate to fulfill the requirements of the law.
3. Cognizable in courts of law, as distinguished
from courts of equity; construed or governed by
the rules and principles of law, in contradistinction
to rules of equity.
4. Posited by the courts as the inference or im-
putation of the law, as a matter of construction,
rather than established by actual proof; e. g., legal
malice. See Lawful.
5. Created by law. De Vita v. Pianisani, 127
Misc. 611, 217 N.Y.S. 438, 440.
6. Lawful; of or pertaining to law. Kinsley v.
Herald & Globe Ass'n, 113 Vt. 272, 34 A.2d 99, 101,
148 A.L.R. 1164.
As to legal "Consideration," "Damages," "Day,"
"Debts," "Demand," "Defense," "Disability," "Dis-
cretton," "Estate," "Incapacity," "Irregularity,"
"Memory," "Mortgage," "Process," "Relevancy,"
"Remedy," "Reversion," and "Tender," see those
titles.
LEGAL ACUMEN. The doctrine of legal acumen
is that if a defect in, or invalidity of, a claim to
land is such as to require legal acumen to discov-
er it, whether it appears upon the face of the rec-
ord or proceedings, or is to be proved aliunde, then
the powers or jurisdiction of a court of equity
may be invoked to remove the cloud created by
such defect or invalidity. Schwab v. City of St.
Louis, 310 Mo. 116, 274 S.W. 1058, 1060.
LEGAL AGE. The age at which the person ac-
quires full capacity to make his own contracts and
deeds and transact business generally (age of ma-
jority) or to enter into some particular contract
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LEGAL ETHICS
or relation, as, the "legal age of consent" to mar-
riage. See Capwell v. Capwell, 21 R.I. 101, 41 A.
1005; Perkins v. Safe Deposit & Trust Co. of Bal-
timore, 138 Md. 299, 113 A. 877, 880.
Legal age may be full or partial. As respects the for-
mer, the common law fixes the beginning of such period
on the day preceding the twenty-first anniversary of birth. ,
as respects the latter, a person may be of legal age for cer-
tain purposes before arriving at the age of 21 years both
at the common law and under the statutes. Montoya de
Antonio v. Miller, 7 N.M. 289, 34 P. 40, 21 L.R.A. 699.
Legal age to consent to marriage means age of consent to
marriage at common law, to wit, 14 years in case of
males, and 12 years in case of females. Capwell v. Cap-
well, 21 R.I. 101, 41 A. 1005. That age, when under the
law duties imposed on trustees which were practically
those of guardians were no longer regarded as necessary
and when the beneficiaries could by their releases duly
acquit the trustees for payments made to them, which in
the case of boys is upon their arrival at the age of 21
years, and in the case of girls at the age of 18 years. Per-
kins v. Safe Deposit & Trust Co. of Baltimore, 138 Md. 299,
113 A. 877, 880. The expression "scholars of legal school
age" includes all members of the schools under the age of
21 years. Needham v. Wellesley, 139 Mass. 372, 31 N.E.
732, 733.
LEGAL ASSETS. Such property of a testator in
the hands of his executor as is liable to debts in
temporal courts and to legacies in the spiritual, by
course of law; equitable assets are such as are lia-
ble only by help of a court of equity. 2 Will.Ex.
1408-1431. The distinction is not important in the
United States; In re Sperry's Estate, 1 Ashm.
(Pa.) 347. That portion of the assets of a deceased
party which by law is directly liable, in the hands
of his executor or administrator, to the payment
of debts and legacies. 1 Story, Eq.Jur. § 551. Such
assets as can be reached in the hands of an execu-
tor or administrator, by a suit at law against him.
LEGAL CAPACITY TO SUE. Right to come into
court, MacAffer v. Boston & M. R. R., 273 N.Y.S.
679, 242 App.Div. 140; American Home Benefit
Ass'n v. United American Benefit Ass'n, 63 Idaho
754, 125 P.2d 1010, 1016.
LEGAL CAPITAL. Property sufficient to balance
capital stock liability. Crocker v. Waltham Watch
Co., 315 Mass. 397, 53 N.E.2d 230, 238.
LEGAL CAUSE. Proximate cause (q. v.). Sub-
stantial factor in bringing about harm. Krauss
v. Greenbarg, C.C.A.Pa., 137 F.2d 569, 572; Giles
v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d
745, 750.
LEGAL CONCLUSION. A statement of legal duty
without stating fact from which duty arises. Bur-
ton-Lingo Co. v. Morton, Tex.Civ.App., 126 S.W.2d
727, 733.
LEGAL CRUELTY. Such as will warrant the
granting of a divorce to the injured party; as dis-
tinguished from such kinds or degrees of cruelty
as do not, under the statutes and decisions, amount
to sufficient cause for a decree. Such conduct on
the part of a husband as will endanger the life,
person, or health of his wife, or create a reason-
able apprehension of bodily hurt; such acts as
render cohabitation unsafe, or are likely to be at-
tended with injury to the person or to the health
of the wife; Odom v. Odom, 36 Ga. 286; 2 Curt.
Eccl. 281; Singewald v. Singewald, 165 Md. 136,
166 A. 441, 446; the willful infliction of pain, bodily
or mental, upon the complaining party, such as
reasonably justified the apprehension of danger to
life, limb, or health; Skellie v. Skellie, 152 Ga.
707, 111 S.E. 22, 24.
If acts of violence are not of frequent repetition, they
must endanger life, limb, or health to constitute "cruelty."
McKane v. McKane, 152 Md. 515, 137 A. 288, 289. To con-
stitute "cruelty," within the divorce law, where there is
no personal violence, the misconduct must be such as will
impair the health or create a reasonable apprehension of
bodily harm. Humber v. Humber, 109 Miss. 216, 68 So.
161, 163. The term is broad enough to include outrages
upon the feelings inflicting mental pain and an q uish, where
the conduct has been studied, willful, and deliberate. Mc-
Nabb v. McNabb, Tex.Civ.App., 207 S.W. 129, 130. See, al-
so, as to "extreme cruelty" as a ground for divorce. Finnell
v. Finnell, 113 Okl. 164, 240 P. 62, 63; Cavileer v. Cavileer,
94 N.J.Eq. 160, 119 A. 101, 103; Maloof v. Maloof, 175 Cal.
571, 166 P. 330, 331.
LEGAL DEPENDENT. Dependent according to
law, Beard v. Rickert Rice Mills, La.App., 164 So.
636, 638. The term imports right to invoke aid of
law to require support. National Council Junior
Order United American Mechanics v. Tate, 193
S.E. 397, 212 N.C. 305, 399, 400, 113 A.L.R. 1514;
Woodmen of the World Life Ins. Soc. v. Irick, D.C.
S.C., 58 F.Supp. 202, 206.
LEGAL DETRIMENT. "Legal detriment" to
promisee means that promisee changes his legal
position, or assumes duties or liabilities not there-
tofore imposed on him. State ex rel. Kansas City
v. State Highway Commission, 349 Mo. 865, 163
S.W.2d 948, 953.
LEGAL DISCRETION, See Discretion.
LEGAL DISTRIBUTEES, as used in will, is
construed to mean persons who would be entitled
to take under the law. Jackson v. Osborne, 108
W.Va. 480, 151 S.E. 709, 710.
LEGAL DUTY. An obligation arising from con-
tract of the parties or the operation of the law.
Riddell v. Ventilating Co., 27 Mont. 44, 69 P. 241.
That which the law requires to be done or for-
borne to a determinate person or the public at
large, correlative to a vested and coextensive right
in such person or the public, and the breach of
which constitutes negligence. Railroad Co. v. Bal-
lentine, C.C.A.I11., 84 F. 935, 28 C.C.A. 572; Toad-
vine v. Cincinnati, N. 0. & T. P. Ry. Co., D.C.Ky.,
20 F.Supp. 226, 227.
LEGAL ENTITY. Legal existence. Department
of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277,
281,
LEGAL ESTOPPEL. Estoppel by deed or record,
as distinguished from estoppel by matter in pais.
Lockhart State Bank v. Baker, Tex.Civ.App., 264
S.W. 566, 569. It excludes evidence of the truth
and the equity of the particular case to support
a strict rule of law on grounds of public policy.
First Nat. Bank v. Boles, 231 Ala. 473, 165 So. 586,
592,
LEGAL ETHICS. Usages and customs among
members of the legal profession, involving their
moral and professional duties toward one another,
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LEGAL EVIDENCE
toward clients, and toward the courts; that branch
of moral science which treats of the duties which
a member of the legal profession owes to the pub-
lic, to the court, to his professional brethren, and
to his client. Kraushaar v. La Vin, 42 N.Y.S.2d
857, 859, 181 Misc. 508.
LEGAL EVIDENCE. A broad general term mean-
ing all admissible evidence, including both oral and
documentary, but with a further implication that it
must be of such a character as tends reasonably
and substantially to prove the point, not to raise a
mere suspicion or conjecture. Curtis v. Bradley,
65 Conn. 99, 31 A. 591, 594, 28 L.R.A. 143, 48 Am.
St.Rep. 177.
LEGAL EXCUSE. The term "legal excuse," which
will excuse observance of ordinance or statute con-
cerning operating or equipping automobile, means
anything that would make it impossible to comply
with statute or ordinance; anything over which
driver has no control in emergency not caused by
driver; or excuse or exception specifically pro-
vided by statute. Edwards v. Perley, 223 Iowa
1119, 274 N.W. 910, 914; Herman v. Sladofsky,
301 Mass. 534, 17 N.E.2d 879, 881; Blashfield, Cyc.
of Automobile Law and Prac., Perm. Ed., §§ 648
(care in general), and 752 (assured clear distance
ahead).
LEGAL FRAUD. Contracts or acts as, though not
originating in actual evil design to perpetrate
fraud, yet by their tendency to mislead others or
to violate confidence, are prohibited by law. Rue-
dy v. Toledo Factories Co., 61 Ohio App. 21, 22
N.E.2d 293, 297. Breach of duty which has ten-
dency to deceive others and operates to their in-
jury, even though there be no vicious intent.
Charleroi Lumber Co. v. School Dist. of Borough
of Bentleyville, 334 Pa. 424, 6 A.2d 88, 91.
Synonymous with "constructive fraud". Pur-
cell v. Robertson, 122 W.Va. 287, 8 S.E.2d 881, 883;
Tom Reed Gold Mines Co. v. United Eastern Min-
ing Co., 39 Ariz. 533, 8 P.2d 449, 451. For definition
of "Constructive Fraud," see Fraud.
LEGAL HEIRS. As used in deed, "Legal heirs"
and "nearest kin" mean same thing. Weather-
ford v. Weatherford, 222 Ala. 102, 130 So. 890, 89L
As used in will means, when applied to personalty,
decedent's next of kin. In re Farkouh's Will,
235 N.Y.S. 165, 167, 134 Misc. 285; persons entitled
under laws of descent and distribution. Daniels
v. Daniels, 115 Conn. 239, 161 A. 94, 95; Ames v.
Conry, 87 Ind.App. 149, 165 N.E. 435, 438. Person
to whom law would give decedent's property if
decedent died intestate. In re Wagar's Estate,
302 Mich. 243, 4 N.W.2d 535, 536.
"Heirs at law," "lawful heirs," "legal heirs," and simi-
lar expressions are synonymous. First & American Nat.
Bank of Duluth v. Higgins, 208 Minn. 295, 293 N.W. 585,
590; Corwin v. Rheims, 390 Ill. 205, 61 N.E.2d 40, 48; In
re Fahnestock's Estate, 384 Ill. 26, 50 N.E.2d 733, 736.
LEGAL HOLIDAY. A day designated by law as
exempt from judicial proceedings, service of proc-
ess, demand and protest of commercial paper,
etc. A day designated by legislative enactment
' for purpose within meaning of term "holiday."
Vidal v. Backs, 218 Cal. 99, 21 P.2d 952, 86 A.L.R.
1134.
LEGAL INJURY. Violation or Invasion of legal
right. Combs v. Hargis . Bank & Trust Co., 234
Ky. 202, 27 S.W.2d 955, 956; American Indemnity
Co. v. Ernst & Ernst, Tex.Civ.App., 106 S.W.2d 763,
765.
LEGAL INSANITY. See Insanity.
LEGAL INTEREST. That rate of interest pre-
scribed by the laws of the particular state or coun-
try as the highest which may be lawfully contract-
ed for or exacted, and which Must be paid in all
cases where the law allows interest without the
assent of the debtor. American, etc., Ass'n v.
Harn, Tex.Civ.App., 62 S.W. 75. Interest at the
legal rate. People ex rel. Emigrant Industrial
Say . Bank v. Sexton, 20 N.Y.S.2d 41, 47, 259 App.
Div. 566. Statutory interest allowed on open ac-
count. Oppenheim v. Hood, Tex.Civ.App., 33 S.W.
2d 265, 267. See, also, Legal Rate of Interest,
inf ra.
LEGAL INVESTMENT. In re Froelich's Estate,
269 N.Y.S. 541, 150 Misc. 371. Sound investment.
In re Public Parks, Borough of Queens, City of
New York, 17 N.Y.S.2d 209, 216, 172 Misc. 877.
LEGAL ISSUE. When used in will and unex-
plained by context, means descendants. In re
Mann's Will, 244 N.Y.S. 673, 680, 138 Misc. 42.
LEGAL JEOPARDY. A person is in "legal jeopar-
dy" when he is put upon trial before a court of
competent jurisdiction upon an indictment or in-
formation which is sufficient in form and substance
to sustain a conviction, and a jury has been
"charged with his deliverance," and a jury is thus
charged when they have been impaneled and
sworn. State v. Whitman, 93 Utah 557, 74 P.2d
696, 697.
LEGAL LIABILITY. A liability which courts rec-
ognize and enforce as between parties litigant.
Abbott v. "Etna Casualty & Surety Co., D.C.Md.,
42 F.Supp. 793, 806; Royal Ins. Co. v. St. Louis.
San Francisco Ry. Co., C.C.A.Okl., 291 F. 358, 360.
See, also, Brooklyn Clothing Corporation v. Fideli-
ty-Phenix Fire Ins. Co., 200 N.Y.S. 208, 211, 205
App.Div. 743.
LEGAL MALICE. An expression used as the
equivalent of "constructive malice," or "malice in
law." Humphries v. Parker, 52 Me. 502. Infer-
ence of malice which can be reasonably drawn
from wrongful act. Chrisman v. Terminal R.
Ass'n of St. Louis, 237 Mo.App. 181, 157 S.W.2d
230, 235. Intentional doing of a wrongful act with-
out just cause. State ex rel. United Factories v.
Hostetter, 344 Mo. 386, 126 S.W.2d 1173, 1176;
Ryan v. Wilson, 231 Iowa 33, 300 N.W. 707, 716;
Hatton v. Carder Wholesale Grocery Co., 235 Mo.
App. 1198, 150 S.W.2d 1096, 1101.
LEGAL NAME. Under common law consists of
one Christian name and one surname, and the in-
sertion, omission, or mistake in middle name or in-
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LEGAL REPRESENTATIVE
itial is immaterial. Langley v. Zurich General
Accident & Liability Ins. Co., 97 Cal.App. 434, 275
P. 963, 965.
LEGAL NEGLIGENCE. Negligence per se; the
omission of such care as ordinarily prudent per-
sons exercise and deem adequate to the circum-
stances of the case. In cases where the common
experience of mankind and the common judgment
of prudent persons have recognized that to do or
omit certain acts is prolific of danger, the doing
or omission of them is "legal negligence." John-
son v. Railway Co., 49 Wis. 529, 5 N.W. 886. Fail-
ure to perform duty law imposes on one person
for benefit of another. Sweeney v. Boston & M.
R. R., 87 N.H. 90, 174 A. 676, 677.
LEGAL NOTICE. Such notice as is adequate in
point of law; such notice as the law requires to
be given for the specific purpose or in the par-
ticular case. See Sanborn v. Piper, 64 N.H. 335, 10
A. 680; Knowledge brought home to a party in a
prescribed form. Worthen v. Kingsbury, 84 N.H.
304, 149 A. 869, 871.
LEGAL OBLIGATION. A legal obligation
against state is an obligation which would form
basis of judgment against state in court of com-
petent jurisdiction should Legislature permit state
to be sued. Fort Worth Cavalry Club, Inc., v.
Sheppard, 125 Tex. 339, 83 S.W.2d 660, 663. Legal
obligation to support parent exists if one is bound
to support parent under statute. Anderson v. Ho-
tel Cataract, 70 S.D. 376, 17 N.W.2d 913, 917.
LEGAL PERSONAL REPRESENTATIVE. Gen-
erally, when applied by testator to personalty, sig-
nifies "executors and administrators" and when
applied to realty those upon whom law casts real
estate immediately upon death of ancestor. Ho-
gate v. Hogate, 132 N.J.Eq. 480, 28 A.2d 769, 771.
As respects delivery of deposit on behalf of de-
ceased seaman the public administrator, or execu-
tor or administrator appointed in state where sea-
man resided.
LEGAL POSSESSOR. One who, but for the res-
ervation of strict legal title in conditional vendor,
or the giving of a strict legal title in a conditional
vendor, or the giving of a strict legal title to a
chattel mortgagee, would have the status of a
full and unqualified owner. General Motors Ac-
ceptance Corporation v. Baker, 291 N.Y.S. 1015,
1019, 161 Misc. 238.
LEGAL PREJUDICE. Legal prejudice which will
defeat plaintiff's motion to dismiss is such as de-
prives defendant of substantive rights of proper-
ty, or concerns his defense, which will not be avail-
able or may be endangered in a second suit. Gen-
eral Motors Acceptance Corporation v. Baker, 291
N.Y.S. 1015, 161 Misc. 238.
LEGAL PRESUMPTION. For "presumption of
law," see Presumption.
LEGAL PRIVITY. "Legal privity", within rule
that defense of usury is personal to debtor and
those in legal privity with him, means those upon
whom title or interest is cast by law. Fry v. Lay-
ton, 191 Miss. 17, 2 So.2d 561, 564, 134 A.L.R. 1330.
LEGAL PROCEEDING. Garrison v. Johnson, C.
C.A.Kan., 66 F.2d 227, 229; Metropolitan Casualty
Ins. Co. of New York v. Sloss-Sheffield Steel &
Iron Co., 241 Ala. 545, 3 So.2d 306, 309. Any pro-
ceedings in court of justice, whether law or equi-
ty, interlocutory or final, by which property of
debtor is seized and diverted from his general
creditors. In re Rialto Properties Co., D.C.Cal.,
8 F.Supp. 57, 59. Proceedings upon appeal to court
of common pleas from action of Industrial Com-
mission. Carson v. Beall, 55 Ohio App. 245, 9 N.
E.2d 729, 731. This term includes all proceedings
authorized or sanctioned by law, and brought or
instituted in a court of justice or legal tribunal,
for the acquiring of a right or the enforcement
of a remedy. Griem v. Fidelity & Casualty Co.,
99 Wis. 530, 75 N.W. 67; Mack v. Campau, 69 Vt.
558, 38 A. 149, 69 Am.St.Rep. 948.
LEGAL RATE OF INTEREST. A rate fixed by
statute where it is not fixed by contract, and it is
unless otherwise specifically provided the maxi-
mum rate which may be contracted for. City of
Danville v. Chesapeake & 0. Ry. Co., D.C.Va., 34
F.Supp. 620, 637. See Legal Interest, supra.
LEGAL REPRESENTATIVE. The term in its
broadest sense, means one who stands in place of,
and represents the interests of, another. Nudel-
man v. Thimbles, Inc., 225 Mo.App. 553, 40 S.W.
2d 475, 477; Haney v. Farmers' Alliance Ins. Co.,
134 Kan. 5, 4 P.2d 460, 461.
Primarily and usually the term connotes executors or
administrators, Shiya v. Erickson, 282 N.Y.S. 812, 156 Misc.
738; Thompson v. Smith, 70 App.D.C. 65, 103 F.2d 936,
938, 123 A.L.R. 76; Commissioner of Corporations and
Taxation v. Second Nat. Bank of Boston, 308 Mass. 1, 30
N.E.2d 889, 894.
But it will be given a different meaning when subject-
matter or context shows that words are not used in ordi-
nary sense, In re Olney Bank & Trust Co., 116 Pa.Super.
438, 176 A. 837, 839; Long v. Montgomery, Mo.App., 22
S.W.2d 206, 209; so that it may mean an assignee in bank-
ruptcy or insolvency, an assignee for the benefit of credi-
tors, a receiver, an assignee of a mortgage, a grantee of
land, a guardian, a purchaser at execution sale, a widow,
or a surviving partner (See Miller v. Metcalf, 77 Conn. 176,
58 A. 743; Mattson v. Wagstad, 188 Wis. 566, 206 N.W. 865,
868; Oldham's Trustee v. Boston Ins. Co., 189 Ky. 844, 226
S.W. 106, 107, 16 A.L.R. 305; Miller v. Miller, 200 Iowa,
1070, 205 N.W. 870, 874, 43 A.L.R. 567; Nobles v. Nobles,
177 N.C. 243, 98 S.E. 715); children, Caudle v. Eckles, 282
Ky. 295, 138 S.W.2d 468, 469, 471; Brooks Bank & Trust
Co. v. Beers, 120 Conn. 477, 181 A. 391; children and chil-
dren of deceased children. In re Blazers Estate, 23 N.Y.
S.2d 388, 393, 394, 175 Misc. 283; children or issue of
deceased member, Stevenson v. Wachovia Bank & Trust
Co., 202 N.C. 92, 161 S.E. 728, 730; descendants, per
stirpes, of deceased next of kin of equal degree with liv-
ing (remote) next of kin, In re Miller's Estate, 103 N.J.Eq.
86, 141 A. 676, 677; heirs, Long v. Montgomery, Mo.App.,
22 S.W.2d 206, 209; Merchants Mut. Casualty Co. v. Egan,
91 N.H. 368, 20 A.2d 480, 482, 135 A.L.R. 745; lineal
descendants, Caudle v. Eckles, 282 Ky. 295, 138 S.W.2d 468,
469, 471; Brooks Bank & Trust Co. v. Beers, 120 Conn. 477,
181 A. 391; Daniels v. Daniels, 115 Conn. 239, 161 A. 94, 95;
next of kin, In re Ackerman's Will, 244 N.Y.S. 632, 634, 137
Misc. 910; persons entitled to take by descent or distribu-
tion, Caudle v. Eckles, 282 Ky. 295, 138 S.W.2d 468, 469,
471; In re Ackerman's Will, 244 N.Y.S. 632, 634, 137 Misc.
910; persons who succeed to benefits of fraternal policy by
operation of law, Sovereign Camp, W. 0. W. v. Snider, 227
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LEGAL RESCISSION
Ala. 126, 148 So. 831, 833. Testamentary trustee, who is
also executor, McMullen v. Sims, Tex.Com.App., 37 S.W.2d141, 145.
LEGAL RESCISSION. Rescission by act of par-
ties. Aron v. Mid-Continent Co., 141 Neb. 806, 4
N.W.2d 884, 886; Gifford v. Thur, 226 Wis. 630, 276
N.W. 348, 352.
LEGAL RESERVE. Reserve which life insurance
companies are required by statute to set aside and
maintain. Lubin v. Equitable Life Assur. Soc. of
U. S., 326 Ill.App. 358, 61 N.E.2d 753, 754; Old
Surety Life Ins. Co. of Alva, Okl., v. Morrow, 195
Okl. 442, 158 P.2d 715, 717.
LEGAL RESIDENCE. Actual dweller in place
notwithstanding technical domicile elsewhere has
"legal residence". City of New Haven v. Town of
Torrington, 132 Conn. 194, 43 A.2d 455, 458. Ac-
tual residence at a place coupled with intent to
remain. Nunn v. Hamilton, 233 Ky. 663, 26 S.W.
2d 526, 530. Domicile. Phillips v. South Caro-
lina Tax Commission, 195 S.C. 472, 12 S.E.2d 13,
15, 19.
Township, city, or village in which poor relief applicant
has resided continuously for more than year or in which he
has longest resided within year, Burke County v. Brusven,
62 N.D. 1, 241 N.W. 82, 85; township wherein voter's fam-
ily home was located though he occasionally lodged, ate
and entertained elsewhere. In re Stabile, 348 Pa. 587, 36
A.2d 451, 452.
LEGAL RIGHT. Natural rights, rights existing
as result of contract, and rights created or recog-
nized by law. Fine v. Pratt, Tex.Civ.App., 150 S.
W.2d 308, 311.
Claim enforceable by legal means against person or com-
munity; well-founded claim, enforced by sanctions, or
right to which state gives sanction ' of remedies, Louis
Kamm, Inc., v. Flank, 113 N.J.L. 582, 175 A. 62, 65, 99
A.L.R. 1; interest for infringement of which law gives a
remedy. Norwood v. McDonald, 142 Ohio St. 299, 52
N.E.2d 67, 72. Personal interest or claim which society is
willing to enforce, Greek Catholic Congregation of Borough
of Olyphant v. Plummer, 347 Pa. 351, 32 A.2d 299, 300.
LEGAL STRIKE. A peaceable walkout, the vol-
untary cessation of striker's employment, in which
employer and those desiring to remain in employ-
er's employ are left free to continue operation of
business in lawful manner and pursuit of their
lawful employment unmolested. International
Ticket Co. v. Wendrich, 122 N.J.Eq. 222, 193 A.
808, 813.
LEGAL SUBDIVISIONS. Divisions of land which
result from application of ordinary methods used
in making of a government survey. Greenblum v.
Gregory, 160 Wash. 42, 294 P. 971, 972.
LEGAL SUBROGATION. A right arising by
operation of law. Goodwin v. Schmidt, 149 Fla.
85, 5 So.2d 64, 66; Federal Land Bank of Baltimore
v. Joynes, 179 Va. 394, 18 S.E.2d 917, 920. Where
one having liability, right, or fiduciary relation
pays another's debt under circumstances equitably
entitling former to rights, remedies or securities
held by creditor. Federal Union Life Ins. Co. v.
Deitsch, 127 Ohio St. 505, 189 N.E. 440, 442; Rag-
land v. Board of Missions for Freedmen of Pres-
byterian Church, 224 Ala. 325, 140 So. 435; West-
ern Union Telegraph Co. v. Smith, 50 Ga.App. 585,
178 S.E. 472. Where person pays in performance
of legal duty imposed by contract, statute, or rule
of law or where payment is favored by public
policy. Western Union Telegraph Co. v. Smith,
50 Ga.App. 585, 178 S.E. 472; where person sec-
ondarily liable pays debt and becomes subrogated
to creditor's rights, Lentz v. Stoflet, 280 Mich. 446,
273 N.W. 763, 766; Where person who pay stands
in situation of a surety or is compelled to pay to
protect his own right or property, Martin v. Hick-
enlooper, 90 Utah 150, 59 P.2d 1139, 1141, 107 A.L.
R. 762; Lervold v. Republic Mut. Fire Ins. Co., 142
Kan. 43, 45 P.2d 839, 842, 106 A.L.R. 673.
"Legal subrogation" is generally confined to relation of
principal and surety, to cases where person is compelled to
remove title superior to that held by him in order to pro-
tect his own, and to cases of insurers, American Nat. Bank
of Mt. Carmel v. Holsen, 331 Ill. 622, 163 N.E. 448, 453.
The right of surety, though such relation is by construc-
tion, to pay debt on which he is bound, and thereby
become equitable assignee from creditor of debt, Hall v.
Hall, 241 Ala. 397, 2 So.2d 908, 914.
LEGAL TITLE. One cognizable or enforceable in
a court of law, or one which is- complete and per-
fect so far as regards the apparent right of own-
ership and possession, but which carries no bene-
ficial interest in the property, another person be-
ing equitably entitled thereto; in either case, the
antithesis of "equitable title." Tobin v. Gartiez,
44 Nev. 179, 191 P. 1063, 1064; Union Tanning Co.
v. Lowe, 148 Tenn. 407, 255 S.W. 712, 714.
It may also mean appearance of title as distinguished
from complete title, Southern Carbon Co. v. State, 13 N.Y.
S.2d 7, 9, 171 Misc. 566; full and absolute title or apparent
right of ownership with beneficial or equitable title in
another; not necessarily record title. Barnes v. Boyd,
D.C.W.Va., 8 F.Supp. 584, 597.
A tax title, which is prima facie valid, is a "legal title",
Murray v. Holland, 108 Ind.App. 236, 27 N.E.2d 126, 128.
LEGAL USUFRUCT. Usufructs established by
operation of law are legal usufructs. Hartford Ac-
cident & Indemnity Co. v. Abdalla, 203 La. 999, 14
So.2d 815; e. g., the usufruct colated for surviving
spouse in necessitous circumstances. Taylor v.
Taylor, 189 La. 1084, 181 So. 543, 549.
LEGAL VOTER. A person having constitutional
requirements and who is registered. Public Serv-
ice Electric & Gas Co. v. City of Camden, 13 N.J.
Misc. 693, 180 A. 778. A person having constitu-
tional qualifications, though not registered. Bran-
stetter v. Heater, 269 Ky. 844, 108 S.W.2d 1040. A
person invested by law with right to vote. Wright
v. Lee, 125 N.J.L. 256, 15 A.2d 610, 611. A person
qualified by Constitution and laws of state to vote.
Lefler v. City of Dallas, Tex.Civ.App., 177 S.W.2d
231, 235.
One having right to vote in municipality is a "legal vot-
er" within statute concerning call of special election on
adoption of municipal manager form of government,
Wright v. Lee, 125 N.J.L. 256, 15 A.2d 610, 611.
LEGAL WILLFULNESS. Intentional disregard
of known duty necessary to safety of person or
property of another and entire absence of care
for life, person or property of others. Bartolucci
v. Falleti, 314 Ill.App. 551, 41 N.E.2d 777, 780.
LEGALIS HOMO. Lat. A lawful man; a per-
son who stands rectus in curia; a person not out-
lawed, excommunicated, or infamous. It occurs
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LEGATEE
in the phrase, "probi et legals homines," (good
and lawful men, competent jurors,) and "legality"
designates the condition of such a man. Jacob.
LEGALIS MONETA ANGLIZE. Lawful money
of England. 1 Inst. 207.
LEGALITY, or LEGALNESS. Lawfulness.
LEGALIZATION. The act of legalizing or mak-
ing legal or lawful.
LEGALIZE. To make legal or lawful. Wight
v. New Jersey Racing Commission, 128 N.J.L.
517, 26 A.2d 709, 712. To confirm or validate what
was before void or unlawful. To add the sanction
and authority of law to that which before was
without or against law.
LEGALIZED NUISANCE. A structure, erection,
or other thing which would constitute a nuisance
at common law, but which cannot be objected to
by private persons because constructed or main-
tained under direct and sufficient legislative au-
thority. Such, for example, are hospitals and pest-
houses maintained by cities. See Baltimore v.
Fairfield Imp. Co., 87 Md. 352, 39 A. 1081, 40 L.R.
A. 494, 67 Am.St.Rep. 344.
LEGALLY. Lawfully; according to law.
LEGALLY ADOPTED. Adopted in accordance
with laws of state. Wooster v. Iowa State Tax
Commission, 230 Iowa 797, 298 N.W. 922, 924.
LEGALLY COMMITTED. Accused has been com-
mitted by magistrate who has jurisdiction to hold
examination and who has actually heard evidence
and determined probable cause exists for holding
defendant. People v. Dal Porto, 17 Cal.App.2d 755,
63 P.2d 1199, 1200.
LEGALLY COMPETENT. Words "legally com-
petent" in statute prescribing qualifications of ex-
ecutor mean fit or qualified to act according to
judicial standards essential to proper course of
justice. In re Haeffele's Estate, 145 Neb. 809, 18
N.W.2d 228, 231.
LEGALLY CONSTITUTED COURT. One known
to and recognized by law. American Motorists'
Ins. Co. v. Central Garage, 86 N.H. 362, 169 A.
121, 124.
LEGALLY CONTRIBUTING CAUSE OF IN-
JURY. Substantial factor in bringing about in-
jury. Farmer v. Central Mut. Ins. Co. of Chi-
cago, Ill., 145 Kan. 951, 67 P.2d 511, 514.
LEGALLY DETERMINED. Determined by proc-
ess of law. Black Diamond S. S. Corporation v.
Fidelity & Deposit Co. of Maryland, D.C.Md., 33
F.2d 767, 769.
LEGALLY LIABLE. Liable under law as inter-
preted by courts. Beck v. Kansas City Public
Service Co., Mo.App., 48 S.W.2d 213, 215. Liability
imposed by law or liability which law fixed by con-
tract. Home Ins. Co. of New York v. Moore &
Rawls, 151 Miss. 189, 117 So. 524. 526.
LEGALLY OPERATING AUTOMOBILE. As us-
ed in liability policy, means operating automobile
by right or by lawful authority. Universal Auto-
mobile Ins. Co. v. Benoit, C.C.A.Ariz., 67 F.2d 52,
53; Zurich General Accident & Liability Ins. Co.
v. Thompson, C.C.A.Cal., 49 F.2d 860, 861.
See, generally, Blashfield, Cyc. of Automobile
Law and Prac., Perm. Ed., § 3943.
LEGALLY QUALIFIED VOTER OR ELECTOR.
As used in statute pertaining to voting in state
elections by members of military forces, indicates
legislative intent that such members be register-
ed as prerequisite to right to vote. In re Dona-
hay's Contested Election, 21 N.J.Misc. 360, 34 A.2d
299, 304.
LEGALLY RESIDE. Domicile. Mitchell v. Kin-
ney, 242 Ala. 196, 5 So.2d 788, 793.
LEGALLY SUFFICIENT EVIDENCE. Compe-
tent, pertinent evidence coming from a legal
source. Sun Cab Co. v. Reustle, 172 Md. 494, 192
A. 292, 296.
Evidence is "legally sufficient to sustain finding," If sup-
ported by substantial evidence, and record as whole does
not clearly, convincingly, or even, possibly, indisputably
require contrary conclusion. Tracy v. Commissioner of
Internal Revenue, C.C.A.6, 53 F.2d 575, 579.
LEGALLY SUFFICIENT TENDER. A tender
made under circumstances that fulfill obligations
assumed by vendors. Kolling v. Martin, 109 Ind.
App. 184, 33 N.E.2d 808, 815.
LEGALLY USING AUTOMOBILE. Using with
"right," not "using in lawful manner." Blair v.
Travelers Ins. Co., 291 Mass. 432, 197 N.E. 60, 63.
The phrase refers to legality of consents. Witko
v. Polito, 39 N.Y.S.2d 843, 845.
See Legally Operating Automobile, supra.
LEGANTINE CONSTITUTIONS. The name of a
code of ecclesiastical laws, enacted in national
synods, held under legates from Pope Gregory IX,
and Clement IV., in the reign of Henry III., about
the years 1220 and 1268. 1 Bl.Comm. 83.
LEGARE. Lat. In the civil and old English law.
To bequeath; to leave or give by will; to give in
anticipation of death. In Scotch phrase, to legate.
LEGATARIUS. Lat. In the civil law. One to
whom a thing is bequeathed; a legatee or lega-
tary. Inst. 2, 20, 2, 4, 5, 10; Bract. fol. 40. In old
European law. A legate, messenger, or envoy.
Spelman.
LEGATARY. One to whom anything is bequeath-
ed; a legatee. This word is sometimes, though
seldom, used to designate a legate or nuncio.
LEGATEE. The person to whom a legacy is giv-
en. See Legacy. Hobbs v. Brenneman, 94 W.Va.
320, 118 S.E. 546, 549; In re Lewis' Estate, 39 Nev.
445, 159 P. 961, 962, 4 A.L.R. 241.
The term may be used, however, to denominate those
who take under will without any distinction between realty
and personalty. Brooker v. Brooker, Tex.Civ.App., 76
S.W.2d 180, 183.
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LEGATEE
Residuary legatee. The person to whom a tes-
tator bequeaths the residue of his personal estate,
after the payment of such other legacies as are
specifically mentioned in the will. Laing v. Bar-
bour, 119 Mass. 525; Lafferty v. People's Say.
Bank, 43 N.W. 34, 76 Mich. 35.
LEGATES. Nuncios, deputies, or extraordinary
ambassadors sent by the pope to be his repre-
sentatives and to exercise his jurisdiction in coun-
tries where the Roman Catholic Church is estab-
lished by law.
LEGATION. An embassy; a diplomatic minister
and his suite; the persons commissioned by one
government to exercise diplomatic functions at
the court of another, including the minister, sec-
retaries, attaches, interpreters, etc., are collective-
ly styled the "legation" of their government. The
word also denotes the official residence of a for-
eign minister.
LEGATOR. One who makes a will, and leaves
legacies.
LEGATORY. The third part of a freeman's per-
sonal estate, which by the custom of London, in
case he had a wife and children, the freeman
might always have disposed of by will. Bac.Abr.
"Customs of London," D. 4.
LEGATOS VIOLARE CONTRA JUS GENTIUM
EST. 4 Coke, pref. It is contrary to the law of
nations to injure ambassadors.
LEGATUM. Lat. In old English law. A legacy
given to the church, or an accustomed mortuary.
Cowell. In the civil law. A legacy; a gift left by
a deceased person, to be executed by the heir.
Inst. 2, 20, 1.
LEGATUM MORTE TESTATORIS TANTUM
CONFIRMATUR, SICUT DONATIO INTER VI-
VOS TRADITIONE SOLA. Dyer, 143. A legacy
is confirmed by the death of a testator, in the same
manner as a gift from a living person is by de-
livery alone.
LEGATUM OPTIONIS. In Roman law. A leg-
acy to A. B. of any article or articles that A. B.
liked to choose or select out of the testator's es-
tate.
If A. B. died after the testator, but before making the
choice or selection, his representative (hcares) could not,
prior to Justinian, make the selection for him, but the leg-
acy failed altogether. Justinian, however, made the legacy
good, and enabled the representative to chose. Brown.
LEGATUS REGIS VICE FUNGITUR A QUO
DESTINATUR ET HONORANDUS EST SICUT
ILLE CUJUS VICEM GERIT. 12 Coke, 17. An
ambassador fills the place of the king by whom he
is sent, and is to be honored as he is whose place
he fills.
LEGEM. Lat. Accusative of lex, law. Occur-
ring in various legal phrases, as follows:
LEGEM AMITTERE. To lose one's law; that is,
to lose one's privilege of being admitted to take an
oath.
LEGEM FACERE. In old English law. To make
law or oath.
LEGEM FERRE. In Roman law. To propose a
law to the people for their adoption. Heinecc.
Ant. Rom. lib. 1, tit. 2.
LEGEM HABERE. To be capable of giving evi-
dence upon oath. Witnesses who had been con-
victed of crime were incapable of giving evidence,
until 6 & 7 Vict. c. 85.
LEGEM JUBERE. In Roman law. To give con-
sent and authority to a proposed law; to make or
pass it. Tayl.Civil Law, 9.
LEGEM PONE. To propound or lay down the
law. By an extremely obscure derivation or an-
alogy, this term was formerly used as a slang
equivalent for payment in cash or in ready money.
LEGEM SCISCERE. To give consent and author-
ity to a proposed law; applied to the consent of
the people.
LEGEM TERRAZE AMITTENTES, PERPETUAM
INFAMI)E NOTAM INDE MERITO INCUR-
RUNT. Those who lose the law of the land, then
justly incur the ineffaceable brand of infamy. 3
Inst. 221.
LEGEM VADIARE. In old English law. To
wage law; to offer or to give pledge to make de-
fense, by oath, with compurgators.
LEGENITA. A fine for criminal conversation
with a woman. Whart.Lex. See Legruita.
LEGES. Lat. Laws. At Rome, the leges (the
decrees of the people in a strict sense) were laws
which were proposed by a magistrate presiding
in the senate, and adopted by the Roman people
in the comitia centuriata. Mackeld, Rom.Law, §
31.
LEGES ANGLIA. The laws of England, as dis-
tinguished from the civil law and other foreign
systems.
LEGES ANGLIA& SUNT TRIPARTIT1E,--JUS
COMMUNE, CONSUETUDINES, AC DECRETA
COMITIORUM. The laws of England are three-
fold,—common law, customs, and decrees of par-
liament.
LEGES BARBARORUM. A class name for the
codes of mediaeval European law. For a list, see
Jenks, 2 Sel.Essays in Anglo-Amer. Leg. Hist. 154.
LEGES EDWARD! CONFESSORIS. A name used
for a legal treatise written from 1130 to 1135,
which presents the law in force toward the end
of Henry I. Its authority is said to be undeserved.
2 Sel. Essays in Anglo-Am. Leg. Hist. 17.
LEGES ET CONSUETUDINI REGNI. The ac-
cepted name for the common law from an early
time; Green, in 9 L.Q.R. 153; since the latter
half of the 12th century at least; Pollock, First
Book of Jurispr. 249.
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LEGISLATIVE
LEGES FIGENDI ET REFIGENDI CONSUETU-
DO EST PERICULOSISSIMA. The practice of
fixing and refixing [making and remaking] the
laws is a most dangerous one. 4 Coke, pref.
LEGES HENRICI. A book written between 1114
and 1118 containing Anglo-Saxon and Norman law.
It is said. to be an invaluable source of knowledge
of the period preceding the full development of
the Norman law. 2 Sel.Essays in Anglo-Am. Leg.
Hist. 16.
LEGES HUMANIE NASCUNTUR, VIVUNT, ET
MORIUNTUR. Human laws are born, live, and
die. 7 Coke, 25; 2 Atk. 674; 11 C.B. 767; 1 Bl.
Comm. 89.
LEGES JULIE/E. Laws enacted during the reign
of Augustus or of Julius Cmsar which, with the
lex abutia, effectually abolished the legis actiones.
LEGES NATURE PERFECTISSIMAE SUNT ET
IMMUTABILES; HUMANI VERO JURIS CON-
DITIO SEMPER IN INFINITUM DECURRIT, ET
NIHIL EST IN EO QUOD PERPETUO STARE
POSSIT. LEGES HUMANE NASCUNTUR, VI-
VUNT, MORIUNTUR. The laws of nature are
most perfect and immutable; but the condition
of human law is an unending succession, and there
is nothing in it which can continue perpetually.
Human laws are born, live, and die. 7 Coke, 25.
LEGES NON SCRIPT1E. In English law. Un-
written or customary laws, including those an-
cient acts of parliament which were made before
time of memory. Hale, Com.Law, 5. See 1 Bl.
Comm. 63, 64.
LEGES NON VERB'S, SED REBUS, SUNT IM-
POSITIE. Laws are imposed, not on words, but
things. 10 Coke, 101; Branch, Princ.
LEGES POSTERIORES PRIORES CONTRARI-
AS ABROGANT. Later laws abrogate prior laws
that are contrary to them. Broom, Max. 27, 29.
LEGES SACRATZE. All solemn compacts be-
tween the plebeians and patricians were so called.
LEGES SCRIPTZE. In Englis:1 law. Written
laws; statute laws, or acts of parliament which
are originally reduced into writing before they are
enacted, or receive any binding power. Hale,
Com.Law, 1, 2.
LEGES SUB GRAVIORI LEGE. Laws under a
weightier law. Hale, Com.Law, 46, 44.
LEGES SUUM LIGENT LATOREM. Laws
should bind their own maker. Fleta, lib. 1, c. 17,
§ 11.
LEGES TABELLARIZE. Roman laws regulating
the mode of voting by ballot, (tabella.) 1 Kent,
Comm. 232, note.
LEGES VIGILANTIBUS, NON DORMIENTI-
BUS, SUBVENIUNT. The laws aid the vigilant,
not the negligent. Smith v. Carll, 5 Johns.Ch.
(N.Y.) 122, 145.
LEGIBUS SOLUTUS. Lat. Released from the
laws; not bound by the laws. An expression ap-
plied in the Roman civil law to the emperor. Cal-
vin.
LEGIBUS SUMPTIS DESINENTIBUS, LEGE
NATURE UTENDUM EST. When laws imposed
by the state fail, we must act by the law of na-
ture. 2 Rolle, 298.
LEGIOSUS. In old records. Litigious, and so
subjected to a course of law. Cowell.
LEGIS CONSTRUCTIO NON FACIT INJURIAM.
Co.Litt. 183. The construction of law does no in-
jury.
LEGIS INTERPRETATIO LEGIS VIM OBTIN-
ET. Ellesm. Postn. 55. The interpretation of law
obtains the force of law.
LEGIS MINISTER NON TENETUR IN EXECU-
TIONE OFFICII SUI, FUGERE AUT RETROCE-
DERE. The minister of the law is bound, in the
execution of his office, not to fly nor to retreat.
Branch, Princ.
LEGISLATE. To enact laws or pass resolutions.
State ex rel. Nunez v. Baynard, La.App., 15 So.2d
649, 655. To make or enact a law or laws. State
ex rel. Porterie v. Louisiana State Board of Edu-
cation, 190 La. 565, 182 So. 676, 678.
LEGISLATION. The act of giving or enacting
laws; the power to make laws; the act of legis-
lating; preparation and enactment of laws; the
making of laws by express decree. State ex rel.
Yancey v. Hyde, 121 Ind. 20, 22 N.E. 644. Formu-
lation of rule for the future. Eastern Oil Refining
Co. v. Court of Burgesses of Wallingford, 130
Conn. 606, 36 A.2d 586, 589; Oklahoma City, Okl.,
v. Dolese, C.C.A.Okl., 48 F.2d 734, 738.
Municipal ordinances are legislation. Doyle v. City of
St. Paul, 206 Minn. 542, 289 N.W. 785, 788.
LEGISLATIVE. Actions which relate to sub-
jects of permanent or general character are "leg-
islative". Keigley v. Bench, 97 Utah, 69, 89 P.2d
480, 484, 485, 122 A.L.R. 756. Making or having
the power to make a law or laws. State ex rel.
Porterie v. Louisiana State Board of Education,
190 La. 565, 182 So. 676, 678. Making or giving
laws; pertaining to the function of law-making
or to the process of enactment of laws. See Ev-
ansville v. State, 118 Ind. 426, 21 N.E. 267, 4 L.R.A.
93.
LEGISLATIVE ACT. Enactment of laws. In re
Manufacturer's Freight Forwarding Co., 294 Mich.
57, 292 N.W. 678, 680. One which prescribes a gen-
eral rule of conduct. Stevens ex rel. Kuberski v.
Haussermann, 113 N.J.Law 162, 172 A. 738, 741.
One which prescribes what the law shall be in f u-
ture cases arising under it. Nider v. Homan, 32
Cal.App.2d 11, 89 P.2d 136, 139; Mabray v. School
Board of Carroll County, 162 Miss. 632, 137 So.
105, 106.
LEGISLATIVE COURTS. Courts created by Leg-
islature not named or described by Constitution.
Gorham v. Robinson, 57 R.I. 1. 186 A. 832.
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LEGISLATIVE
Courts exercising judicial power created by Con-
gress under constitutional authority to provide
for government and administration of territories
and tribunals created by Congress under general
legislative power to perform administrative, or
quasi judicial, functions. Gorham v. Robinson, 57
R.I. 1, 186 A. 832, 849, 850.
Court of Claims, Manion v. State, 303 Mich. 1, 5 N.W.
2d 527, 529; United States v. Sherwood, 61 S.Ct. 767, 770,
312 U.S. 584, 85 L.Ed. 1058; Court of Customs and Patent
Appeals, Bland v. Commissioner of Internal Revenue, C.C.
A.7, 102 F.2d 157, 159; Territorial courts; State ex rel.
Ralston v. Turner, 141 Neb. 556, 4 N.W.2d 302, 306.
O'Donoghue v. U. S., Ct.C1., 53 S.Ct. 740, 289 U.S. 516, 77
L.Ed. 1356; United States Court for China, Casement v.
Squier, D.C.Wash., 46 F.Supp. 296, 297.
LEGISLATIVE DEPARTMENT. That depart-
ment of government whose appropriate function
is the making or enactment of laws, as distinguish-
ed from the judicial department, which interprets
and applies the laws, and the executive depart-
ment, which carries them into execution and ef-
fect. See In re Davies, 168 N.Y. 89, 61 N.E. 118,
56 L.R.A. 855.
LEGISLATIVE EXPENSES. Distinction between
"legislative expenses" and "personal expenses" is
that legislative expenses are those that are neces-
sary to enable the Legislature to properly perform
its functions, while those that are personal are
those that must be incurred by a member of the
Legislature in order to be present at the place of
meeting, expenses for his personal comfort and
convenience, which have nothing to do with the
performance of his duty as a member of the Leg-
islature. Personal expenses are those incurred for
rooms, meals, laundry, communications with their
homes, and other things of like character. Scrog-
gie v. Scarborough, 162 S.C. 218, 160 S.E. 596, 600.
LEGISLATIVE FUNCTION. The determination
of legislative policy and its formulation as rule
of conduct. Yakus v. United States, Mass., 64 S.
Ct. 660, 667, 321 U.S. 414, 88 L.Ed. 834. The for-
mation and determination of future rights and du-
ties. Dal Maso v. Board of Com'rs of Prince
George's County, 182 Md. 200, 34 A.2d 464, 466.
LEGISLATIVE OFFICER. A member of the leg-
islative body or department of a state or municipal
corporation. See Prosecuting Attorney v. Judge
of Recorder's Court, 59 Mich. 529, 26 N.W. 694.
One of those whose duties relate mainly to the
enactment of laws, such as members of congress
and of the several state legislatures.
These officers are confined in their duties by the constitu-
tion generally to make laws, though sometimes, in cases
of impeachment, one of the houses of the legislature
exercises judicial functions somewhat similar to those of a
grand jury, by presenting to the other articles of impeach-
ment, and the other house acts as a court in trying such
impeachment.
LEGISLATIVE POWER. The lawmaking power;
the department of government whose function is
the framing and enactment of laws. Evansville
v. State, 118 Ind. 426, 21 N.E. 267, 4 L.R.A. 93.
Brown v. Galveston, 97 Tex. 1, 75 S.W. 495; O'Neil
v. American F. Ins. Co., 166 Pa. 72, 30 A. 943, 26
L.R.A. 715, 45 Am.St.Rep. 650.
Authority to make, alter, amend, and repeal laws,
Harsha v. City of Detroit, 261 Mich. 586, 246 N.W. 849,
850, 90 A.L.R. 853; Gregory v. Cockrell, 179 Ark. 719, 18
S.W.2d 362; authority to pass rules of law for govern-
ment and regulation of people or property, Reif v. Bar-
rett, 355 Ill. 104, 188 N.E. 889, 901; Schneberger v. State
Board of Social Welfare, 228 Iowa 399, 291 N.W. 859, 861;
power to declare what law shall be, Gorham v. Robinson,
57 R.I. 1, 186 A. 832, 842.
Power of home-rule city to fix its boundaries and to an-
nex territory is a "legislative power". City of Houston v.
State ex rel. City of West University Place, 142 Tex. 190,
176 S.W.2d 928, 931.
LEGISLATOR. One who makes laws; a member
of a legislative body.
LEGISLATORUM EST VIVA VOX, REBUS ET
NON VERBIS LEGEM IMPONERE. The voice
of legislators is a living voice, to impose laws on
things, and not on words. 10 Coke, 101.
LEGISLATURE. The department, assembly, or
body of men that makes laws for a state or nation.
Body to declare public policy of state and to ordain
changes therein, Commonwealth v. Hall, 291 Pa. 341, 140 A.
626, 630, 58 A.L.R. 1023; lawmaking body of state, Ex
parte Hague, 105 N.J.Eq. 134, 147 A. 220, 221; legislative
or lawmaking power including Governor, Koenig v. Flynn,
234 App.Div. 139, 254 N.Y.S. 339, 342; political body of
persons organized for purpose of making laws and acting
in official capacity, State ex rel. Carroll v. Becker, 329 Mo.
501, 45 S.W.2d 533, 536.
LEGISPERITUS. Lat. A person skilled or learn-
ed in the law; a lawyer or advocate. Feud. lib.
2, tit. 1.
LEGIT VEL NON? In old English practice, this
was the formal question propounded to the ordi-
nary when a prisoner claimed the benefit of clergy,
-does he read or not? If the ordinary found that
the prisoner was entitled to clergy, his formal an-
swer was, "Legit ut clericus," he reads like a
clerk.
LEGITIM. In Scotch law. The children's share
in the father's movables.
LEGITIMACY. Lawful birth; the condition of
being born in wedlock; the opposite of illegiti-
macy or bastardy. Davenport v. Caldwell, 10 S.C.
337; Pratt v. Pratt, 5 Mo.App. 541.
LEGITIMATE, v. To make lawful; to confer
legitimacy; to place a child born before marriage
on the footing of those born in lawful wedlock.
McKamie v. Baskerville, 86 Tenn. 459, 7 S.W. 194;
Blythe v. Ayres, 96 Cal. 532, 31 P. 915, 19 L.R.A.
40.
LEGITIMATE, adj. That which is lawful, legal,
recognized by law, or according to law; as legiti-
mate children, legitimate authority, lawful power,
legitimate sport or amusement. People v. Com-
mons, 64 Cal.App.2d Supp. 925, 148 P.2d 724, 731.
Real or genuine. United States v. Schenck, C.C.A.
N.Y., 126 F.2d 702, 705, 707.
LEGITIMATION. The making legitimate or law-
ful that which was not originally so; especially
the act of legalizing the status of a bastard.
LEGITIMATION PER SUBSEQUENS MATRI-
MONIUM. The legitimation of a bastard by the
subsequent marriage of his parents. Bell
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LESION
LEGITIME. Lat. In the civil law. That portion
of a parent's estate of which he cannot disinherit
his children without a legal cause. That interest
in a succession of which forced heirs may not be
deprived. Alexander v. Gray, La.App., 181 So.
639, 643. Bauman v. Pennywell, 160 La. 555, 107
So. 425, 427. It may also apply to father or moth-
er. Succession of Greenlaw, 148 La. 255, 86 So.
786, 791.
LEGITIME IMPERANTI PARERE NECESSE
EST. Jenk. Cent. 120. One lawfully commanding
must be obeyed.
LEGITIMI ILEREDES. Lat. In Roman law.
Legitimate heirs; the agnate relations of the es-
tate-leaver; so called because the inheritance was
given to them by a law of the Twelve Tables.
LEGITIMUS. Lawful; legitimate.  Legitimus
hceres et filius est quem nuptice demonstrant, a
lawful son and heir is he whom the marriage
points out to be lawful. Bract. fol. 63.
LEGO. Lat. In Roman law. I bequeath. A
common term in wills. Dig. 30, 36, 81, et seq.
LEGRUITA. In old records. A fine for criminal
conversation with a woman. See Legenita.
LEGULEIUS. A person skilled in law, (in legi-
bus versatus;) one versed in the forms of law.
Calvin.
LEHURECHT. The German feudal law. 1 Poll.
& Maitl. 214.
LEIDGRAVE. An officer under the Saxon gov-
ernment, who had jurisdiction over a lath. Enc.
Land. See Lath.
LEIPA. In old English law. A fugitive or run-
away.
LEND. To put out for hire or compensation. In
re Lalla's Estate, 362 Ill. 621, 1 N.E.2d 50, 53. To
part with a thing of value to another for a time
fixed or indefinite, yet to have some time in end-
ing, to be used or enjoyed by that other, the thing
itself or the equivalent of it to be given back at
the time fixed, or when lawfully asked for, with
or without compensation for the use as may be
agreed upon. Kent v. Quicksilver Min. Co., 78 N.
Y. 177. Term "lend" when used in a will means
to "give" or "devise." Alexander v. Alexander, 210
N.C. 281, 186 S.E. 319; Allen v. Hewitt, 212 N.C.
367, 193 S.E. 275, 276.
LENDER. He from whom a thing is borrowed.
The bailor of an article loaned.
LENDING OR LOANING MONEY OR CREDIT.
Transactions creating customary relation of bor-
rower and lender, in which money is borrowed
for fixed time on borrower's promise to repay
amount borrowed at stated time in future with in-
terest at fixed rate. Bannock County v. Citizens'
Bank & Trust Co., 53 Idaho 159, 22 P.2d 674.
LENT. In ecclesiastical law. The quadragesim-
al fast; a time of abstinence; the time from Ash-
Wednesday to Easter.
LEOD. People; a people; a nation. Spelman.
LEODES. In old European law. A vassal, or
leige man; service; a were or weregild. Spel-
man.
LEOHT-GESCEOT. A tax for supplying the
church with lights. Anc.Inst.Eng.
LEONINA SOCIETAS. Lat. An attempted part-
nership, in which one party was to bear all the
losses, and have no share in the profits. This was
a void partnership in Roman law; and, apparent-
ly, it would also be void as a partnership in Eng-
lish law, as being inherently inconsistent with the
notion of partnership. (Dig. 17, 2, 29, 2.) Brown.
LEP AND LACE. A custom in the manor of
Writtle, in Essex, that every cart which goes over
Greenbury within that manor (except it be the
cart of a nobleman) shall pay 4d. to the lord.
Blount.
LEPORARIUS. A greyhound. Cowell.
LEPORIUM. A place where hares are kept.
Mon.Angl. t. 2, p. 1035.
LEPROSO AMOVENDO. An ancient writ that
lay to remove a leper or lazar, who thrust himself
into the company of his neighbors in any parish,
either in the church or at other public meetings,
to their annoyance. Reg.Orig. 237.
LEPROSUS. L. Lat. A leper.
LESCHEWES. Trees fallen by chance or wind-
falls. Brooke, Abr. 341.
LESE MAJESTY. The old English and Scotch
translation of "lcesa majestas," or high treason.
2 Reeve, Eng.Law, 6. See Leze Majesty.
LES FICTIONS NAISSENT DE LA LOI, ET NON
LA LOI DES FICTIONS. Fictions arise from
the law, and not law from fictions.
LES LOIS NE SE CHARGENT DE PUNIR QUE
LES ACTIONS EXTERIEURES. Laws do. not
undertake to punish other than outward actions.
Montes. Esp. Lois, b. 12, c. 11; Broom, Max. 311.
LESING or LEASING. Gleaning.
LESION. Damage; injury; detriment. Gasper-
ino v. Prudential Ins. Co. of America, Mo.App., 107
S.W.2d 819, 827; Kelham. Hurt, loss, or injury,
Gasperino v. Prudential Ins, Co. of America, Mo.
App., 107 S.W.2d 819, 827; Warbende v. Prudential
Ins. Co. of America, C.C.A.Ill., 97 F.2d 749, 753,117
A.L.R. 760; Order of United Commercial Travel-
ers of America v. Sevier, C.C.A.Mo., 121 F.2d 650,
654. Any change in the structure of an organ due
to injury or disease, whether apparent or diag-
nosed as the cause of a functional irregularity or
disturbance. People v. Durand, 307 Ill. 611, 139
N.E. 78, 83. Morbid change in structure of organs
or parts, Order of United Commercial Travelers
of America v. Sevier, C.C.A.Mo., 121 F.2d 650, 654;
Andrzejewski v. Prudential Ins. Co. of America,
321 Pa. 543, 184 A. 51, 53; Warbende v. Prudential
Ins. Co. of America, C.C.A.Ill., 97 F.2d 749, 753, 117
A.L.R. 760. A term of the Scotch Law.
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LESION
In the Civil law. The injury suffered by one who
does not receive a full equivalent for what he gives
in a commutative contract. Civil Code La. art.
1860. Inequality in contracts. Poth. Obl., no. 33;
Fleming v. Irion, 132 La. 163, 61 So. 151, 152.
LESPEGEND. An inferior officer in forests to
take care of the vert and venison therein, etc.
Wharton.
LESSA. A legacy. Mon. Ang., t. 1, p. 562.
LESSEE. He to whom a lease is made. He who
holds an estate by virtue of a lease. Viterbo v.
Friedlander, 7 S.Ct. 962, 120 U.S. 707, 30 L.Ed. 776;
Lang v. Hitt, 149 Ga. 667, 101 S.E. 795, 796; Dutton
v. Dutton, 253 P. 553, 554, 122 Kan. 640; Boston
Fish Market Corp. v. City of Boston, 224 Mass. 31,
112 N.E. 616, 617, one who has been given posses.
sion of land which is exclusive even of the land-
lord, except as the lease permits his entry, and
except right to enter to demand rent or to make
repairs. Seabloom v. Krier, 219 Minn. 362, 18 N.
W.2d 88, 91.
LESSER OFFENSE. Though the term is used
as synonymous with a "less serious offense" or a
"minor offense" when one is considering quality
of criminal act or severity of penalty imposed,
such term as used in statute providing that de-
fendant charged with one of offenses enumerated
cannot be convicted or sentenced for lesser of-
fense, means any offense necessarily included in
offense charged, where offense charged is one of
offenses defined in act. Witt v. State, 205 Ind. 499,
185 N.E. 645, 647.
LESSOR. He who grants a lease. Viterbo v.
Friedlander, 7 S.Ct. 962, 120 U.S. 707, 30 L.Ed.
776; Dutton v. Dutton, 122 Kan. 640, 253 P. 553,
554.
One who has leased land for a definite or indefinite
period, by a written or parol lease, irrespective of whether
a statute of fraud requires the lease to be in writing.
City of Tyler v. Ingram, 139 Tex. 600, 164 S.W.2d 516, 520.
When a lessee subleases the res, he becomes "lessor" for
purposes of sublease. Magnolia Petroleum Co. v. Carter,
La.App., 2 So.2d 680, 682.
LESSOR OF THE PLAINTIFF. In the action of
ejectment, this was the party who really and in
effect prosecuted the action and was interested in
its result.
The reason of his having been so called arose from the
circumstance of the action having been carried on in the
name of a nominal plaintiff, (John Doe,) to whom the real
plaintiff had granted a fictitious lease, and thus had be-
come his lessor.
LEST. Fr. In French maritime law. Ballast.
Ord. Mar. liv. 4, tit. 4, art. 1.
LESTAGE, LASTAGE. A custom for carrying
things in fairs and markets. Fleta, 1. 1, c. 47;
Termes de la Ley.
LESTAGEFRY. Lestage free, or exempt from
the duty of paying ballast money. Cowell.
LESTAGIUM. Lastage or lestage; a duty laid
on the cargo of a ship. Cowell.
LESWES. Pastures. Domesday; Co. Litt. 4b.
A term often inserted in old deeds and convey.
ances. Cowell.
LET, v.
In contracts. To award to one of several per-
sons, who have submitted proposals therefor,
the contract for erecting public works or do-
ing some part of the work connected therewith,
or rendering some other service to government for
a stipulated compensation.
Letting the contract is the choosing one from among
the number of bidders, and the formal making of the con-
tract with him. The letting, or putting out, is a different
thing from the invitation to make proposals; the letting
is subsequent to the invitation. It is the act of awarding
the contract to the proposer, after the proposals have been
received and considered. See Eppes v. Railroad Co., 35
Ala. 33, 55.
In conveyancing. To demise or lease. "To let
and set" is an old expression.
In judicial orders and decrees. The word "let"
(in the imperative) imports a positive direction
or command.
Thus the phrase "let the writ issue as prayed" is equiva-
lent to "it is hereby ordered that the writ issue," etc. See
Ingram v. Laroussini, 50 La.Ann. 69, 23 So. 498.
In Practice. To deliver. "To let to bail" is to de-
liver to bail on arrest.
LET, n. In old conveyancing. Hindrance; ob-
struction; interruption. Still occasionally used in
the phrase "without any let, suit, trouble," etc.
Gustafson v. Ursales, 3 Ohio App. 136, 139.
LET IN. In practice. To admit a party as a mat-
ter of favor; as to open a judgment and "let the
defendant in" to a defense.
LETHAL. Deadly, mortal, fatal. Vaughn v.
Kansas City Gas Co., 236 Mo.App. 669, 159 S.W.
2d 690, 698.
LETHAL WEAPON. In Scotch law. A deadly
weapon. See State v. Godfrey, 17 Or. 300, 20 P.
625, 11 Am.St.Rep. 830.
LETRADO. In Spanish law. An advocate.
White, New Recop. b. 1, tit. 1, c. 1, § 3, note.
LETTER. One of the arbitrary marks or char-
acters constituting the alphabet, and used in writ-
ten language as the representatives of sounds or
articulations of the human organs of speech.
A dispatch or epistle; a written or printed mes-
sage; a communication in writing from one per-
son to another at a distance. Buchwald v. Buch-
wald, 199 A. 795, 799, 175 Md. 103.
In the imperial law of Rome, "letter" or "epistle" was
the name of the answer returned by the emperor to a
question of law submitted to him by the magistrates.
A communication inclosed, sealed, and stamped'
and being carried as first-class mail. Hyney v. U.
S., C.C.A.Mich., 44 F.2d 134, 136; Wolpa v. U. S.,
C.C.A.Neb., 86 F.2d 35, 39.
A commission, patent, or written instrument
containing or attesting the grant of some power,
authority, or right.
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LETTERS
The word appears in this generic sense in many com-
pound phrases known to commercial law and jurispru-
dence; e. g., letter of attorney, letter missive, letter of
credit, letters patent. The plural is frequently used.
Metaphorically, the verbal expression; the strict
literal meaning.
The letter of a statute, as distinguished from its spirit,
means the strict and exact force of the language employed,
as distinguished from the general purpose and policy of the
law.
He who, being the owner of a thing, lets it out
to another for hire or compensation. Story,
Bailm. § 369.
As to letters of "Administration," "Advice," "At-
torney," "Credit," "Horning," "Recommendation,"
see those titles. As to "Letters Patent," see Pat-
ent.
LETTER-BOOK. A book in which a merchant or
trader keeps copies of letters sent by him to his
correspondents.
LETTER-CARRIER. An employe of the post-of-
fice, whose duty it is to carry letters from the
post-office to the persons to whom they are ad-
dressed.
LETTER MISSIVE. In English law. A letter
from the king or queen to a dean and chapter, con-
taining the name of the person whom he would
have them elect as bishop. 1 Steph.Comm. 666.
A request addressed to a peer, peeress, or lord of
parliament against whom a bill has been filed de-
siring the defendant to appear and answer to the
bill. In civil-law practice. The phrase "letters
missive," or "letters dimissory," is sometimes used
to denote the papers sent up on an appeal by the
judge or court below to the superior tribunal,
otherwise called the "apostles," (q. v.).
LETTER OF ADVOCATION. In Scotch law.
The process or warrant by which, on appeal to the
supreme court or court of session, that tribunal
assumes to itself jurisdiction of the cause, and
discharges the lower court from all further pro-
ceedings in the action. Ersk. Inst. 732.
LETTER OF CREDENCE. In international law.
The document which accredits an ambassador,
minister, or envoy to the court or government to
which he is sent;  e., certifies to his appointment
and qualification, and bespeaks credit for his of-
ficial actions and representations.
LETTER OF EXCHANGE. A bill of exchange
(q. v.).
LETTER OF LICENSE. In English law, a writ-
ten instrument in the nature of an agreement,
signed by all the creditors of a failing or embar-
rassed debtor in trade, granting him an extension
of time for the payment of the debts, allowing
him in the meantime to carry on the business in
the hope of recuperation, and protecting him from
arrest, suit, or other interference pending the
agreement.
This form is not usual in America; but something sim-
ilar to it is found in the "composition" or "extension
agreement," by which all the creditors agree to fund their
claims in the form of promissory notes, concurrent as to
date and maturity, sometimes payable serially and some-
times extending over a term of years. Provision is often
made for the supervision or partial control of the business,
in the meantime, by a trustee or a committee of the cred-
itors, in which case the agreement is sometimes called a
"deed of inspectorship," though this term is more com-
monly used in England than in the United States.
LETTER OF MARQUE. A commission given to
a private ship by a government to make reprisals
on the ships of another state; hence, also, the
ship thus commissioned. U. S. v. The Ambrose
Light, D.C.N.Y., 25 F. 408; Gibbons v. Livingston,
6 N.J.Law, 255.
LETTER OF RECALL. A document addressed by
the executive of one nation to that of another, in-
forming the latter that a minister sent by the for-
mer has been recalled.
LETTER OF RECREDENTIALS. A document
embodying the formal action of a government up-
on a letter of recall of a foreign minister. It, in
effect, accredits him back to his own government.
It is addressed to the latter government, and is de-
livered to the minister by the diplomatic secretary
of the state from which he is recalled.
LETTERS AD COLLIGENDUM BONA DEFUNC-TI. In Practice. In default of the representatives
and creditors to administer to the estate of an in-
testate, the officer entitled to grant letters of ad-
ministration may grant to such person as he ap-
proves, letters to collect the goods of the deceased,
which neither make him executor nor administra-
tor; his only business being to collect the goods
and keep them in his safe custody. 2 Bla.Com.
505.
LETTERS CLOSE. In English law. Close letters
are grants of the king, and, being of private con-
cern, they are thus distinguished from letters pat-
ent.
LETTERS OF ABSOLUTION. Absolvatory let-
ters, used in former times, when an abbot released
any of his brethren ab omnia sub jectione et obedi-
entia, etc., and made them capable of entering into
some other order of religion. Jacob.
LETTERS OF CORRESPONDENCE. In Scotch
law. Letters are admissible in evidence against
the panel, i. e., the prisoner at the bar, in criminal
trials. A letter written by the panel is evidence
against him; not so one from a third party found
in his possession. Bell.
LETTERS OF FIRE AND SWORD. See Fire and
Sword.
LETTERS OF GUARDIANSHIP. A commission
placing ward's property in the care of officer of
court as custodian. Walker v. Graves, 174 Tenn.
336, 125 S.W.2d 154, 157.
LETTERS OF REQUEST. A formal instrument
by which an inferior judge of ecclesiastical juris-
diction requests the judge of a superior court to
take and determine any matter which has come
before him, thereby waiving or remitting his own
jurisdiction. This is a mode of beginning a suit
originally in the court of arches, instead of the con-
sistory court.
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LETTERS
LETTERS OF SAFE CONDUCT. No subject of a
nation at war with England can, by the law of na-
tions, come into the realm, nor can travel himself
upon the high seas, or send his goods and mer-
chandise from one place to another, without dan-
ger of being seized, unless he has letters of safe
conduct.
By divers old statutes these must be granted under the
great seal, and enrolled in chancery, or else are of no
effect; the sovereign being the best judge of such emer-
gencies as may deserve exemption from the general law of
arms. But passports or licenses from the ambassadors
abroad are now more usually obtained, and are allowed to
be of equal validity. Wharton.
LETTERS OF SLAINS, OR SLANES. Letters
subscribed by the relatives of a person who had
been slain, declaring that they had received an
assythment, and concurring in an application to
the crown for a pardon to the offender. These or
other evidences of their concurrence were neces-
sary to found the application. Bell.
LETTERS ROGATORY. A request by one court
of another court in an independent jurisdiction,
that a witness be examined upon interrogatories
sent with the request. Magdanz v. District Court
in and for Woodbury County, 222 Iowa 456, 269
N.W. 498, 499, 108 A.L.R. 377. The medium where-
by one country, speaking through one of its courts,
requests another country, acting through its own
courts and by methods of court procedure peculiar
thereto and entirely within the latter's control, to
assist the administration of justice in the former
country. The Signe, D.C.La., 37 F.Supp. 819, 820.
A formal communication in writing, sent by a
court in which an action is pending to a court or
judge of a foreign country, requesting that the
testimony of a witness resident within the juris-
diction of the latter court may be there formally
taken under its direction and transmitted to the
first court for use in the pending action.
This process was also in use, at an early period, between
the several states of the Union. The request rests entirely
upon the comity of courts towards each other. See Union
Square Bank v. Reichmann, 41 N.Y.S. 602, 9 App.Div. 596.
LETTERS TESTAMENTARY. The formal instru-
ment of authority and appointment given to an
executor by the proper court, empowering him to
enter upon the discharge of his office as executor.
It corresponds to letters of administration granted
to an administrator.
LETTING. Leasing. City and County of San
Francisco v. United States, C.C.A.Cal., 106 F.2d
569, 576.
LETTING OUT. The act of awarding a contract;
e. g., a construction contract, or contract for car-
rying the mails.
LETTRE. Fr. In French law. A letter. It is
used, like our English "letter," for a formal instru-
ment giving authority.
LETTRES DE CACHET. Letters issued and
signed by the kings of France, and countersigned
by a secretary of state, authorizing the imprison-
ment of a person.
Under them, persons were imprisoned for life or for a
long period on the most frivolous pretexts, for the gratifi-
cation of private pique or revenge, and without any reason
being assigned for such punishment. They were also
granted by the king for the purpose of shielding his fa-
vorites or their friends from the consequences of their
crimes ; and thus were as pernicious in their operation as
the protection afforded by the church to criminals in a
former age. Abolished during the Revolution of 1789.
Wharton.
LEUCA.
In old French law. A league, consisting of fifteen
hundred paces. Spelman.
In old English law. A league or mile of a thou-
sand paces. Domesday; Spelman. A privileged
space around a monastery of ' a league or mile in
circuit. Spelman.
LEVANDIE NAVIS CAUSA. Lat. For the sake
of lightening the ship; denotes a purpose of throw-
ing overboard goods, which renders them subjects
of general average.
LEVANT ET COUCHANT. L. Fr. Rising up and
lying down.
A term applied to trespassing cattle which have remained
long enough upon land to have lain down to rest and risen
up to fed; generally the space of a night and a day, or,
at least, one night.
LEVANTES ET CUBANTES. Rising up and lying
down. A term applied to cattle. 3 Bl.Comm. 9.
The Latin equivalent of "levant et couchant."
LEVARI FACIAS. Lat. A writ of execution di-
recting the sheriff to cause to be made of the lands
and chattels of the judgment debtor the sum recov-
ered by the judgment. Pentland v. Kelly, 6 Watts
& S. (Pa.) 484.
Also a writ to the bishop of the diocese, commanding
him to enter into the benefice of a judgment debtor, and
take and sequester the same Into his possession, and hold
the same until he shall have levied the amount of the judg-
ment out of the rents, tithes, and profits thereof.
LEVARI FACIAS DAMNA DE DISSEISITORI-
BUS. A writ formerly directed to the sheriff for
the levying of damages, which a disseisor had been
condemned to pay to the disseisee. Cowell.
LEVARI FACIAS QUANDO VICECOMES RE-,
TURNAVIT QUOD NON HABUIT EMPTORES.
An old writ commanding the sheriff to sell the
goods of a debtor which he had already taken, and
had returned that he could not sell them; and as
much more of the debtor's goods as would satis-
fy the whole debt. Cowell.
LEVARI FACIAS RESIDUUM DEBITI. An old
writ directed to the sheriff for levying the remnant
of a partly-satisfied debt upon the lands and tene-
ments or chattels of the debtor. Cowell.
LEVATO VELO. Lat. An expression used in the
Roman law, and applied to the trial of wreck and
salvage. Commentators disagree about the origin
of the expression; but all agree that its general
meaning is that these causes shall be heard sum-
marily.
The most probable solution is that it refers to the place
where causes were heard. A sail was spread before the
door and officers employed to keep strangers from the tri-
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LEVY
bunal. When these causes were heard, this sail was raised,
and suitors came directly to the court, and their causes
were heard immediately. As applied to maritime courts,
its meaning is that causes should be heard without delay.
These causes require dispatch, and a delay amounts prac-
tically to a denial of justice. (See Cod. 11, 4, 5.) Bouvier.
LEVEE. An embankment or artificial mound of
earth constructed along the margin of a river, to
confine the stream to its natural channel or pre-
vent inundation or overflow. State v. New Orleans
& N. E. R. Co., 7 So. 226, 42 La.Ann. 138; Royse v.
Evansville & T. H. R. Co., 67 N.E. 446, 160 Ind. 592.
Also (probably by an extension of the foregoing mean-
ing) a landing place on a river or lake; a place on a river
or other navigable water for lading and unlading goods
and for the reception and discharge of passengers to and
from vessels lying in the contiguous waters, which may be
either a wharf or pier or the natural bank. See Coffin v.
Portland, C.C.Or., 27 F. 415; People v. Allen, 317 Ill. 92,
147 N.E. 479, 481.
LEVEE DISTRICT. A municipal subdivision of a
state (which may or may not be a public corpora-
tion) organized for the purpose, and charged with
the duty, of constructing and maintaining such
levees within its territorial limits as are to be
built and kept up at public expense and for the
general public benefit. See People v. Levee Dist.
No. 6, 131 Cal. 30, 63 P. 676.
LEVEL RATE, LEGAL RESERVE POLICY. In-
surance which seeks to build up a reserve which
will equal face value of policy at the end of in-
sured's life. Helmer v. Equitable Reserve Ass'n,
214 Wis. 270, 252 N.W. 728.
LEVEL ROAD. Road with uniform grade, regard-
less of whether it is horizontal, up grade, or down
grade. O'Rourke v. City of Washington, 304 Pa.
78, 155 A. 100, 102, 78 A.L.R. 811.
LEVIABLE. That which may be levied. That
which is a proper or permissible subject for a levy;
as, a "leviable interest" in land. See Bray v. Rags-
dale, 53 Mo. 172.
LEVIR. In Roman law. A husband's brother; a
wife's brother-in-law. Calvin.
LEVIS. Lat. Light; slight; trifling. Levis cul-
pa, slight fault or neglect. Levissima culpa, the
slightest neglect. Levis nota, a slight mark or
brand. See Brand v. Schenectady & T. R. Co., 8
Barb. (N.Y.) 378.
LEVITICAL DEGREES. Degrees of kindred
within which persons are prohibited to marry.
They are set forth in the eighteenth chapter of
Leviticus.
LEVITY. A term used in connection with collu-
sion in a Pennsylvania divorce act. Lyon v. Lyon,
30 Pa.C.C. 359. See Collusion.
LEVY, v. To assess; raise; execute; exact; col-
lect; gather; take up; seize. Thus, to levy (as-
sess, exact, raise, or collect) a tax; to levy (raise
or set up) a nuisance; to levy (acknowledge) a
fine; to levy (inaugurate) war; to levy an execu-
tion, i. e., to levy or collect a sum of money on an
execution.
LEVY, n. A seizure. Farris v. Castor, 186 Okl.
668, 99 P.2d 900, 902; McBrien v. Harris, 39 Ga.
App. 41, 145 S.E. 919; Radford v. Kachman, 27
Ohio App. 86, 160 N.E. 875, 877; Plaxico v. Web-
ster, 175 S.C. 69, 178 S.E. 270. An actual making
the money out of the property; the obtaining of
money by seizure and sale of property. Farris 'v.
Castor, 99 P.2d 900, 902, 186 Okl. 668. The mental
act of determination to sell. Parker v. MacCue,
54 R.I. 270, 172 A. 725, 727. The raising of the
money for which an execution has been issued.
Plaxico v. Webster, 175 S.C. 69, 178 S.E. 270.
As used in Uniform Conditional Sales Act, "levy of exe-
cution" means the setting aside of specific property from
the general property of the debtor and placing it in the
custody of the law until it can be sold and applied to the
payment of the execution. Bent v. H. W. Weaver, Inc.,
106 W.Va. 164, 145 S.E. 594, 595.
In reference to taxation, the word may mean the legisla-
tive function and declaration of the subject and rate or
amount of taxation, People v. Mahoney, 13 Cal.2d 729, 91
P.2d 1029; Atlantic Coast Line R. Co. v. Amos, 94 Fla. 588,
115 So. 315, 320; City of Richmond v. Eubank, 179 Va. 70,
18 S.E.2d 397, 403; or the rate of taxation rather than the
physical act of applying the rate to the property, Lowden
v. Texas County Excise Board, 187 Okl. 365, 103 P.2d 98,
100; or the formal order, by proper authority declaring
property subject to taxation at fixed rate at its assessed
)'aluation, State v. Davis, 335 Mo. 159, 73 S.W.2d 406, 407;
or the ministerial function of assessing, listing and ex-
tending taxes, City of Plankinton v. Kieffer, 70 S.D. 329, 17
N.W.2d 494, 495, 496; or the extension of the tax, Syracuse
Trust Co. v. Board of Sup'rs of Oneida County, 13 N.Y.S.
2d 390, 394; People ex rel. Oswego Falls Corporation v.
Foster, 295 N.Y.S. 891, 895, 251 App.Div. 65; Day v. In-
land Steel Co., 185 Minn. 53, 239 N.W. 776, 777; or the do-
ing of whatever is necessary in order to authorize the col-
lector to collect the tax, Syracuse Trust Co. v. Board of
Sup'rs of Oneida County, 13 N.Y.S.2d 390, 394. The quali-
fied electors "levy" a tax when they vote to impose it.
Parker v. MacCue, 54 R.I. 270, 172 A. 725, 727.
Equitable levy. The lien in equity created by
the filing of a creditors' bill to subject real proper-
ty of the debtor, and of a lis pendens, is sometimes
so called. Miller v. Sherry, 2 Wall. 249, 17 L.Ed.
827; Mandeville v. Campbell, 61 N.Y.S. 443, 45
App.Div. 512. The right to an equitable lien is
sometimes called an "equitable levy." Hudson v.
Wood, C.C.Ky., 119 F. 764, 776, 777.
LEVY COURT. A court formerly existing in the
District of Columbia.
It was a body charged with the administration of the
ministerial and financial duties of Washington county. It
was charged with the duty of laying out and repairing
roads, building bridges, providing poor-houses, laying and
collecting the taxes necessary to enable it to discharge
these and other duties, and to pay the other expenses of
the county. It had capacity to make contracts in reference
to any of these matters, and to raise money to meet such
contracts. It had perpetual succession, and its functions
were those which, in the several states, are performed by
"county commissioners," "overseers of the poor," "county
supervisors," and similar bodies with other designations.
Levy Court v. Coroner, 2 Wall. 507, 17 L.Ed. 851.
In Delaware, the "levy court" is an administra-
tive board.
The board is elected and organized in each county, com-
posed of from five to thirteen "commissioners," who, in
respect to taxation, per form the functions of a board of
equalization and review and also of a board to 'supervise
the assessors and collectors and audit and adjust their ac-
counts, and who also have certain powers and special du-
ties in respect to the administration of the poor laws, the
system of public roads and the officers in charge of them,
the care of insane paupers and convicts, the government
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LEVYING
and administration of jails, school districts, and various
other matters of local concern. See Rev.St.Del. 1893, c. 8;
Mealey v. Buckingham, 22 A. 357, 6 Del.Ch. 356.
LEVYING WAR. In criminal law. The assem-
bling of a body of men for the purpose of effecting
by force a treasonable object; and all who perform
any part, however minute, or however remote from
the scene of action, and who are leagued in the
general conspiracy, are considered as engaged in
levying war, within the meaning of the constitu-
tion. Const. art. 3, § 3; Ex parte Bollman, 4
Cranch, 75, 2 L.Ed. 554.
The words include forcible opposition, as the result of
a combination of individuals, to the execution of any
public law of the United States; and to constitute treason
within the Federal Constitution, there must be a combina-
tion of individuals united for the common purpose of.
forcibly preventing the execution of some public law and-
the actual or threatened use of force by the combination to
prevent its execution. Kegerreis v. Van Zile, 167 N.Y.S.
874, 876, 180 App.Div. 414.
LEWD. Obscene. People on Complaint of Sum-
ner, v. Dial Press, Mag.Ct., 48 N.Y.S.2d 480, 481.
Lustful, indecent, lascivious, lecherous. City of
Shreveport v. Wilson, 145 La. 906, 83 So. 186,
188. The term imports a lascivious intent. It
signifies that form of immorality which has re-
lation to moral impurity. United States v. Bar-
low, D.C.Utah, 56 F.Supp. 795, 796, 797, or that
carried on in a wanton manner. State v. Barnes,
Mo.App., 256 S.W. 496, 498; Rebhuhn v. Cahill,
D.C.N.Y., 31 F.Supp. 47, 49. Lewd and lascivious
behavior of wife to authorize a divorce must be
such conduct as proves the wife unchaste. Black-
burn v. Blackburn, 294 Ky. 312, 171 S.W.2d 457.
LEWD AND LASCIVIOUS COHABITATION.
Within statutes, the living together of a man and
woman not married to each other, in the same
house or apartment, as husband and wife. State v.
Bridgeman, 88 W.Va. 231, 106 S.E. 708, 711. Ha-
bitual acts .of illicit intercourse are necessary ele-
ments. State v. Tuttle, 129 Me. 125, 150 A. 490,
491; State v. Davenport, 225 N.C. 13, 33 S.E.2d 136,
139. See, also, Lewdness.
LEWD HOUSE. House may be a "lewd house,"
though chiefly devoted to carrying on business of
boarding house or hotel, if lewd women are ac-
customed to frequent house and carry on their
practices therein. Smith v. State, 52 Ga.App. 88,
182 S.E. 816, 818.
LEWD PERSON. One who is lawless, bad, vicious,
unchaste. State v. Harlowe, 174 Wash. 227, 24 P.2d
601.
LEWDLY AND LASCIVIOUSLY PLAYING WITH
A FEMALE CHILD. Playing or dallying with or
touching or handling such child in indecent and
obscene manner calculated to excite passions.
State v. Martin, Del., 7 W.W.Harr. 342, 183 A. 334.
LEWDNESS. Gross and wanton indecency in sex-
ual relations. State v. Brenner, 132 N.J.L. 607, 41
A.2d 532, 534, 535. Gross indecency so notorious as
to tend to corrupt community's morals. Abbott v.
State, 163 Tenn. 384, 43 S.W.2d 211, 212. Licen-
tiousness; that form of immorality which has
relation to sexual impurity. U. S. v. Males, D.C.
Ind., 51 F. 41. Moral turpitude. Lane ex rel. Cro-
nin v. Tillinghast, C.C.A.Mass., 38 F.2d 231, 232.
Open and public indecency. State v. Brenner, 132
N.J.L. 607, 41 A.2d 532, 534, 535. Sensuality; de-
bauchery. State v. Sullivan, 187 Iowa, 385, 174 N.
W. 225. An offense against the public economy,
when of an open and notorious character; as by
frequenting houses of ill fame, which is an indict-
able offense, or by some grossly scandalous and
public indecency, for which the punishment at com-
mon law is fine and imprisonment. Wharton. See
Brooks v. State, 2 Yerg. (Tenn.) 483; State v.
Bauguess, 106 Iowa, 107, 76 N.W. 508.
The term includes prostitution and assignation and other
immoral or degenerate conduct or conversation between
persons of opposite sexes, People v. Bay Side Land Co., 48
Cal.App. 257, 191 P. 994, 995. As well as between persons of
the same sex, and signifies both illicit sexual intercourse
and the irregular indulgence of lust, whether public or
private, Commonwealth v. Porter, 2.37 Mass. 1, 129 N.E.
298, 299; State v. Rayburn, 170 Iowa 514, 153 N.W. 59, 60,
L.R.A.1915F, 640. Holding that the living together of a
man and woman unmarried, when generally known
throughout the neighborhood, constitutes open and gross
lewdness. Contra: City of Shreveport v. Wilson, 145 La.
906, 83 So. 186, 188.
Lewd or lascivious behavior practised without disguise,
secrecy, or concealment. The adjective relates to the
quality of the act, not to the place nor to the number of
spectators. State v. Juneau, 88 Wis. 180, 59 N.W. 580, 24
L.R.A. 857, 43 Am.St.Rep. 877; Corn. v. Wardell, 128
Mass. 52, 35 Am.Rep. 357. There must be present elements
making the act shameless, aggressive, and defiant, rather
than furtive and hiding away in shame; lewdness being
deemed open when committed in the presence of another
person, or in a place open to public view. State v. Pedigo,
190 Mo.App. 293, 176 S. W. 556, 557.
LEX. Lat.
In medieval jurisprudence. A body or collec-
tion of various laws peculiar to a given nation or
people; not a code in the modern sense, but an
aggregation or collection of laws not codified or
systematized. See Mackeld.Rom.Law, § 98.
Also, a similar collection of laws relating to a general
subject, and not peculiar to any one people.
In modern American and English jurisprudence.
A system or body of laws, written or unwritten, or
so much thereof as may be applicable to a particu-
lar case or question, considered as being local or
peculiar to a given state, country, or jurisdiction,
or as being different from the laws or rules re-
lating to the same subject-matter which prevail
in some other place.
In old English law. A body or collection of laws,
and particularly the Roman or civil law.
Also a form or mode of trial or process of law, as the
ordeal or battel, or the oath of a party with compurgators,
as in the phrases legem facere, legem vadiare, etc. Also
used in the sense of legal rights or civil rights or the pro-
tection of the law, as in the phrase legem amittere.
In Roman law. Law; a law; the law.
This term was often used as the synonym of jus, in the
sense of a rule of civil conduct authoritatively prescribed
for the government of the actions of the members of an
organized jural society.
Lex is used in a purely juridical sense, law, and not
also right; while jus has an ethical as well as a juridical
meaning, not only law, but right. 15 L.Q.R. 367 (by Sal-
mond). Lex is usually concrete, while jus is abstract. In
English we have no term which combines the legal and
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LEX BAIUVARIORUM
ethical meanings, as do jus and its French equivalent,
droit. Pollock, First Book of Jurispr. 14-18.
In a more limited and particular sense, it was a resolu-
tion adopted by the whole Roman "populus" (patricians
and plebeians) in the comitia, on the motion of a magis-
trate of senatorial rank, as a consul, a praetor, or a dicta-
tor. Such a statute frequently took the name of the pro-
poser ; as the lex Falcidia, lex Cornelia, etc.
A rule of law which magistrates and people had agreed
upon by means of a solemn declaration of consensus.
Sohm, Inst.R.L. 28.
In a somewhat wider and more generic sense, a law
(whatever its origin) or the aggregate of laws, relating
to a particular subject-matter, thus corresponding to the
meaning of the word "law" in some modern phrases, such
as the "law of evidence," "law of wills," etc.
Other specific meanings of the word in Roman Jurispru-
dence were as follows : Positive law, as opposed to natural.
That system of law which descended from the Twelve Ta-
bles, and formed the basis of all the Roman law. The
terms of a private covenant; the condition of an obliga-
tion. A form of words prescribed to be used upon particu-
lar occasions.
LEX IEBUTIA. A statute which introduced and
authorized new and more simple methods of insti-
tuting actions at law.
The law which, with the leges Julice, In part abolished
the legis actiones. It provided that a judicium could be in-
stituted in a city court without legis actio, merely by
means of the formula or prwtorian decree of appointment,
and placed the legis actio and the formula, so far as the
civil law was concerned, on a footing of equality. Sohm,
Rom. L. 173.
LEX "ELIA SENTIA. The 2Elian Sentian law,
respecting wills, proposed by the consuls JElius
and Sentius, and passed A. U. C. 756, restraining
a master from manumitting his slaves in certain
cases. Calvin.
LEX 1EMILIA. A law which reduced the official
term of the censors at Rome from five years to a
year and a half, and provided for the discharge of
their peculiar functions by the consuls in the in-
terim until the time for a new census. Mackeld.
Rom.Law, § 29.
LEX 2EQUITATE GAUDET. Law delights in eq-
uity. Jenk.Cent. p. 36, case 69.
LEX A2EQUITATE GAUDET; APPETIT PERFEC-
TUM; EST NORMA RECTI. The law delights in
equity: it covets perfection; it is a rule of right.
Jenk.Cent. 36.
LEX AGRARIA. The agrarian law. A law pro-
posed by Tiberius Gracchus, A. U. C. 620, that no
one should possess more than five hundred acres
of land; and that three commissioners should be
appointed to divide among the poorer people what
any one had above that extent.
LEX ALAMANNORUM. The law of the Aleman-
ni; first reduced to writing from the customs of
the country' by Theodoric, king of the Franks,
A. D. 512. Amended and reenacted by Clotaire
II. Spelman.
LEX ALIQUANDO SEQUITUR IEQUITATEM.
Law sometimes follows equity. 3 Wils. 119.
LEX AMISSA. One who is an infamous, per-
jured, or outlawed person. Bract. lib. 4, c. 19.
LEX ANASTASIANA. The law admitting as ag-
nati the children of emancipated brothers and sis-
ters. Inst. 3, 5.
A law which provided that a third person who purchased
a claim or debt for less than its true or nominal value
should not be permitted to recover from the debtor more
than the price paid with lawful interest. Mackeld.Rom.
Law, § 369.
LEX ANGLIZE. The law of England. The com-
mon law. Or, the curtesy of England.
LEX ANpLI1E EST LEX MISERICORDLE. 2
Inst. 315. The law of England is a law of mercy.
LEX ANGLI2E NON PATITUR ABSURDUM. 9
Coke, 22a. The law of England does not suffer an
absurdity.
LEX ANGLL zE NUNQUAM MATRIS SED SEM-
PER PATRIS CONDITIONEM IMITARI PAR-
TUM JUDICAT. The law of England rules that
the offspring shall always follow the condition of
the father, never that of the mother. Co.Litt. 123;
Bart.Max. 59.
LEX ANGLIZE NUNQUAM SINE PARLIAMEN-
TO MUTAUI POTEST. 2 Inst. 218. The law of
England cannot be changed but by parliament.
LEX APOSTATA. A thing contrary to law. Ja-
cob.
LEX APPARENS. In old English and Norman
law. Apparent or manifest law.
A term used to denote the trial by battel or duel, and the
trial by ordeal, "lex" having the sense of process of law.
Called "apparent" because the plaintiff was obliged to
make his right clear by the testimony of witnesses, before
he could obtain an order from the court to summon the
defendant. Spelman.
LEX APULEJA, or APULEIA. A law giving to
one of several joint sureties or guarantors, who
had paid more than his proportion of the debt
secured, a right of action for reimbursement
against his co-sureties as if a partnership existed
between them. See Mackeld.Rom.Law, § 454, note
2; Inst. 3, 20.
LEX AQUILIA, The Aquilian law; a celebrated
law passed on the proposition of the tribune C.
Aquilius Gallus, A. U. C. 672, superseding the
earlier portions of the Twelve Tables, and regulat-
ing the compensation to be made for that kind of
damage called "injurious," in the cases of killing
or wounding the slave or beast of another. Inst. 4,
3; Calvin.
LEX ATILIA. The Atilian law. A law of Rome
proposed by the tribune L. Atilius Regulus, A. U.
C. 443, which conferred upon the magistrate the
right of appointing guardians. It applied only
to the city of Rome; Sohm, Inst.Rom.L. 400.
LEX ATINIA. The Atinian law. A law declaring
that the property in things stolen should not be ac-
quired by prescription, (usucapione.) Inst. 2, 6, 2;
Adams, Rom.Ant. 207.
LEX BAIUVARIORUM, (BAIORIORUM, or
BOIORUM). The law of the Bavarians, a barbar-
ous nation of Europe, first collected (together with
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LEX BARBARA
the law of the Franks and Alemanni) by Theodoric
I., and finally completed and promulgated by Dago-
bert. Spelman.
LEX BARBARA. The barbarian law. The laws
of those nations that were not subject to the Ro-
man empire were so called. Spelman.
LEX BENEFICIALIS REI CONSIMILI REME-
DIUM PRIESTAT. 2 Inst. 689. A beneficial law
affords a remedy for a similar case.
LEX BREHONIA. The Brehon or Irish law, over-
thrown by King John. See Brehon Law.
LEX BRETOISE. The law of the ancient Britons,
or Marches of Wales. Cowell.
LEX BURGUNDIONUM. The law of the Burgun-
dians, a barbarous nation of Europe, first compiled
and published by Gundebald, one of the last of
their kings, about A.D. 500. Spelman.
LEX CALPURNIA. A law relating to the form
and prosecution of actions for the recovery of
specific chattels other than money. See Mackeld.
Rom.Law, § 203. The law which extended the
scope of the action allowed by the lex Silia to all
obligations for any certain definite thing.
LEX CANULEIA. The law which conferred upon
the plebeians the connubium, or the right of inter-
marriage with Roman citizens. Morey, Rom.L. 48.
LEX CINCIA. A law which prohibited certain
kinds of gifts and all gifts or donations of proper-
ty beyond a certain measure, except in the case
of near kinsmen.
LEX CITIUS TOLERARE VULT PRIVATUM
DAMNUM QUAM PUBLICUM MALUM. The law
will more readily tolerate a private loss than a
public evil. Co.Litt. 152.
LEX CLAUDIA. A law which abolished the an-
cient guardianship of adult women by their male
agnate relations. See Mackeld. Rom. Law, § 615.
LEX COMITATUS. The law of the county, or
that administered in the county court before the
earl or his deputy. Spelman.
LEX COMMISSORIA. See Commissoria Lex.
LEX COMMUNIS. The common law. See Jus
Commune.
LEX CONTRA ID QUOD PRIESUMIT, PROBA-
TIONEM NON RECIPIT. The law admits no
proof against that which it presumes. Lofft, 573.
LEX CORNELIA. The Cornelian law; a law
passed by the dictator L. Cornelius Sylla, providing
remedies for certain injuries, as for battery, forci-
ble entry of another's house, etc. Calvin.
LEX CORNELIA DE ;EDICT'S. The law forbid-
ding a prtetor to depart during his term of office
from the edict he had promulgated at its com-
mencement. Sohm, Rom. L. 51.
LEX CORNELIA DE FALSO (or FALSIS). The
Cornelian law respecting forgery or counterfeit-
ing.
Passed by the dictator Sylla. Dig. 48, 10; Calvin. The
law which provided that the same penalty should attach
to the forgery of a testament of a person dying in captivity
as to that of a testament made by a person dying in his
own country. Inst. 2, 12, 5.
LEX CORNELIA DE INJURIIS. The law pro-
viding a civil action for the recovery of a penalty
in certain cases of bodily injury. Sohm, R.L. 329.
LEX CORNELIA DE SICARIIS ET VENEFICIS.
The Cornelian law respecting assassins and poi-
soners, passed by the dictator Sylla, and contain-
ing provisions against other deeds of violence.
It made the killing of the slave of another person punish-
able by death or exile, and the provisions of this law were
extended by the Emperor Antoninus Pius to the case of a
master killing his own slave. Inst. 1, 8; Dig. 48,  Cal-
vin.
LEX CORNELIA DE SPONSU. A law prohibit-
ing one from binding himself for the same debtor
to the same creditor in the same year for more
than a specified amount. Inst. 2, 20.
LEX DANORUM. The law of the Danes; Dane-
law or Dane-lage. Spelman.
LEX DE FUTURO, JUDEX DE PRIETERITO.
The law provides for the future, the judge for
the past.
LEX DE RESPONSIS PRUDENTUM. The law
of citations.
LEX DEFICERE NON POTEST IN JUSTITIA
EXHIBENDA. Co. Litt. 197. The law cannot be
defective [or ought not to fail] in dispensing jus-
tice.
LEX DERAISNIA. The proof of a thing which
one denies to be done by him, where another af-
firms it; defeating the assertion of his adversary,
and showing it to be against reason or probabil-
ity. This was used among the old Romans, as
well as the Normans. Cowell.
LEX DILATIONES SEMPER EXHORRET. 2
Inst. 240. The law always abhors delays.
LEX DOMICILII. The law of the domicile. 2
Kent, Comm. 112, 433.
LEX EST AB ETERNO. Law is from everlast-
ing.
A strong expression to denote the remote antiquity of the
law. Jenk.Cent. p. 34, case (30; Branch, Princ.
LEX EST DICTAMEN RATION'S. Law is the
dictate of reason. Jenk.Cent. p. 117, case 33.
The common law will judge according to the law of na-
ture and the public good.
LEX EST NORMA RECTI. Law is a rule of
right. Branch, Princ.
LEX EST RATIO SUMMA, QU)E JUBET QU1E
SUNT UTILIA ET NECESSARIA, ET CONTRA-
RIA PROHIBET. Law is the perfection of rea-
son, which commands what is useful and neces-
sary, and forbids the contrary. Co. Litt. 319b ;
Id. 97b.
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LEX JULIA
LEX EST SANCTIO SANCTA, JUBENS HONES-
TA, ET PROHIBENS CONTRARIA. Law is a
sacred sanction, commanding what is right, and
prohibiting the contrary. 2 Inst. 587; 1 Sharsw.
Bla.Comm. 44, n.
LEX EST TUTISSIMA CASSIS; SUB CINPEO
LEGIS NEMO DECIPITUR. Law is the safest
helmet; under the shield of the law no one is de-
ceived. 2 Inst. 56.
LEX ET CONSUETUDO PARLIAMENTI. The
law and custom (or usage) of parliament.
The houses of parliament constitute a court not only of
legislation, but also of justice, and have their own rules,
by which the court itself and the suitors therein are
governed. May, Parl.Pr. (6th Ed.) 38-61.
LEX ET CONSUETUDO REGNI. The la .w and
custom of the realm. One of the names of the
common law. Hale, Com.Law, 52.
It was bad pleading to apply the term to law made by
a statute. Pollock, First Book of Jurispr. 250.
LEX FABIA DE PLAGIARIIS. The law provid-
ing for the infliction of capital punishment in cer-
tain cases. Inst. 4, 18, 10.
LEX FALCIDIA. See Falcidian Law.
LEX FAVET DOTI. Jenk. Cent. 50. The law fa-
vors dower. 3 & 4 Will. IV. c. 105.
LEX FINGIT UBI SUBSISTIT PEQUITAS. 11
Coke, 90. The law makes use of a fiction where
equity subsists. Branch, Princ.
LEX FORI. The law of the forum, or court;
that is, the positive law of the state, country, or
jurisdiction of whose judicial system the court
where the suit is brought or remedy sought is an
integral part. 2 Kent, Comm. 462.
"Remedies upon contracts and their incidents are regu-
lated and pursued according to the law of the place where
the action is instituted, and the lex loci has no applica-
tion." 2 Kent, Comm. 462. "The remedies are to be gov-
erned by the laws of the country where the suit is brought;
or, as it is compendiously expressed, by the lex fori."
Bank of United States v. Donnally, 8 Pet. 361, 372, 8 L. Ed.
974. "So far as the law affects the remedy, the lex fori,
the law of the place where that remedy is sought, must
govern. But, so far as the law of the construction, the
legal operation and effect, of the contract, is concerned,
it is governed by the law of the place where the contract
is made." Warren v. Copelin, 4 Mete. (Mass.) 594, 597.
The lex fori, or law of jurisdiction in which relief is sought
controls as to all matters pertaining to remedial as dis-
tinguished from substantive rights. Shimonek v. Tillman,
150 Okl. 177, 1 P.2d 154, 156; Sullivan v. McFetridge, Sup.,
55 N.Y.S.2d 511, 516. See Lex Loci Contractus.
LEX FRANCORUM. The law of the Franks;
promulgated by Theodoric I., son of Clovis I.,
at the same time with the law of the Alemanni
and Bavarians. Spelman. This was a different
collection from the Salic law.
LEX FRISIONUM. The law of the Frisians, pro-
mulgated about the middle of the eighth century.
Spelman.
LEX FURIA CANINIA. The Furian Caninian
law.
A law passed in the consulship of P. Furius Camillus
and C. Caninius Gallus, A.U.C. 752, prohibiting masters
from manumitting by will more than a certain number or
proportion of their slaves. This law was abrogated by
Justinian. Inst. 1, 7; Heinecc.Elem. lib. 1, tit. 7.
LEX FURIA DE SPONSU. The law limiting the
liability of sponsors and fide-promissors to two
years, and providing that as between several co-
sponsors or co-fide-promissors, the debt should be,
ipso jure, divided according to the number of the
sureties without taking the solvency of individual
sureties into account. It applied only to Italy.
Sohm, Rom.L. 299, n.; Inst. 3, 20.
LEX FURIA TESTAMENTARIA. A law enacting
that a testator might not bequeath as a legacy
more than one thousand asses.
LEX GABINIA. A law introducing the ballot in
elections.
LEX GENUCIA. A law which entirely forbade
the charging or taking of interest for the use of
money among Roman citizens, but which was us-
ually and easily evaded, as it did not declare an
agreement for interest to be a nullity. See Mack-
eld. Rom.Law, § 382n.
LEX GOTHICA. The Gothic law, or law of the
Goths. First promulgated in writing A.D. 466.
Spelman.
LEX HORATIA VALERIA. A law which assured
to the tribal assembly its privilege of independent
existence. See Lex Horatii,
LEX HORATII. An important constitutional
statute, taking its name from the consul who se-
cured its enactment, to the effect that all decrees
passed in the meetings of the plebeians should be
laws for the whole people; formerly they were
binding only on the plebeians. Mackeld. Rom.Law,
§ 32.
LEX HORTENSIA. The law giving the plebeians
a full share in the jus publicum and the jus sac-
rum. Sand. Just. Introd. § 9. -
LEX HOSTILIA DE FURTIS. A Roman law,
which provided that a prosecution for theft might
be carried on without the owner's intervention.
4 Steph.Comm. (7th Ed.) 118.
LEX IMPERATORIA. The Imperial or Roman
law. Quoted under this name, by Fleta, lib. 1, c.
38, § 15; Id. lib. 3, c. 10, § 3.
LEX INTENDIT VICINUM VICINI FACTA SCI-
RE. The law intends [or presumes] that one
neighbor knows what another neighbor does. Co.
Litt. 78b.
LEX JUDICAT DE REBUS NECESSARIO FACI-
ENDIS QUASI RE IPSA FACTIS. The law judg-
es of things which must necessarily be done as
if actually done. Branch, Princ.
LEX JUDICIALIS. An ordeal.
LEX JULIA. Several statutes bore this name, be-
ing distinguished by the addition of words descrip-
tive of their subject matter.
The "lex Julia de adulteriis" related to marriage, dower,
and kindred subjects. The lex Julia de ambitu was a law
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LEX JULIA MAJESTATIS
to repress illegal methods of seeking office. Inst. 4, 18.
The lex Julia de annona was designed to repress combina-
tions for heightening the price of provisions. The "lex
Julia de cessione bonorum" related to bankruptcies. The
lex Julia de majestate inflicted the punishment of death
on all who attempted anything against the emperor or
state. Inst. 4, 18. The lex Julia de maritandis ordinibus
forbade senators and their children to intermarry with
freedmen or infames, and freedmen to marry infames.
Sohm, Rom.L. 497. The lex Julia de residuis was a law
punishing those who gave an incomplete account of public
money committed to their charge. Inst. 4, 18. The lex
Julia de peculatu punished those who had stolen public
money or property or anything sacred or religious. Mag-
istrates and those who had aided them in stealing public
money during their administration were punished capital-
ly; other persons were deported. Inst. 4, 18, 9. As to lex
Julia et Papia Poppcea, See Lex Papia Popp.Ta.
LEX JULIA MAJESTATIS. The Julian law of
majesty.
A law promulgated by Julius Caesar, and again published
with additions by Augustus, comprehending all the laws
before enacted to punish transgressors against the state.
Calvin.
LEX JUNIA NORBANA. The law conferring le-
gal freedom on all such freedmen as were tuitione
prcetoris. See Latini Juniani.
Lex Junia Velleja conferred the same right on post-
humous children born in the lifetime of the testator, but
after the execution of the will, as were enjoyed by those
born after the death of the testator. Sohm, Rom.L. 463.
LEX JUNIA VELLEJA. A law providing that
descendants who became sui heredes of the testa-
tor otherwise than by birth, as by the death of
their father, must be disinherited or instituted
heirs in the same way as posthumous children.
Campbell, Rom.L. 77.
LEX KANTIIE. The body of customs prevailing
in Kent during the time of Edward I.
A written statement of these customs was sanctioned by
the king's justices in Byre. They were mainly concerned
with the maintenance of a . form of land tenure known as
gavelkind (q. v.). 1 Poll. & Maitl. 166.
LEX LOCI. The law of the place. This may be
of several descriptions but, in general, lex loci
is only used for lex loci contractus.
The "lex loci" furnishes the standard of conduct, Russ
v. Atlantic Coast Line R. Co., 220 N. C. 715, 18 S.E.2d 130,
131; it governs as to all matters going to the basis of the
right of action itself, State of Maryland, for Use of Joynes,
v. Coard, 175 Va. 571, 9 S.E.2d 454, 458.
The substantive rights of parties to action are governed
by "lex loci" or law of place where rights were acquired
or liabilities incurred. Sullivan v. McFetridge, Sup., 55 N.
Y.S.2d 511, 516; Gray v. Blight, C.C.A.Colo., 112 F.2d 696,
699.
LEX LOCI ACTUS. The law of the place where
the act was done.
LEX LOCI CELEBRATIONIS. The law of the
place where a contract is made.
LEX LOCI CONTRACTUS. Used sometimes to
denote the law of the place where the contract was
made, and at other times to denote the law by
which the contract is to be governed, which may
or may not be the same as that of the place where
it was made. The earlier cases do not regard this
distinction. See Pritchard v. Norton, 1 S.Ct. 102,
106 U.S. 124, 27 L.Ed. 104; Pickering v. Fisk, 6 Vt.
102; Speed v. May, 17 Pa. 91, 55 Am.Dec. 540;
Hayward v. Le Baron, 4 Fla. 404; Scudder v. Bank,
91 U.S. 406, 23 L.Ed. 245. See an elaborate collec-
tion of cases on conflict of laws, 5 Eng.Rul.Cas.
703-975. The phrase is used, in a double sense,
to mean, sometimes, the law of the place where a
contract is entered into; sometimes that of the
place of its performance. Security Trust & Sav-
ings Bank of Charles City, Iowa v. Gleichmann, 50
Oki. 441, 150 P. 908, 911, L.R.A.1915F, 1203; Farm
Mortgage & Loan Co. v. Beale, 113 Neb. 293, 202
N.W. 877, 878; Bullington v. Angel, 220 N.C. 18,
16 S.E.2d 411, 412, 136 A.L.R. 1054; it is the place
of acceptance. Sterrett v. Stoddard Lumber Co.,
150 Or. 491, 46 P.2d 1023, 1029.
LEX LOCI DELICTUS. The law of the place
where the crime or wrong took place. More fully
expressed by the words lex loci delicti commissi
(law of the place where a tort is committed),
usually written more briefly as lex loci delicti, or,
sometimes, simply lex delicti.
LEX LOCI DOMICILII. The law of the place of
domicile.
LEX LOCI REI SITIE. The law of the place
where a thing or subject-matter is situated.
"It is equally settled in the law of all civilized countries
that real property, as to its tenure, mode of enjoyment,
transfer, and descent, is to be regulated by the lex loci rei
sitce." 2 Kent, Comm. 429. The title to realty or question
of real estate law can be affected only by the law of the
place where the realty is situated. Colden v. Alexander,
171 S.W.2d 328, 335, 141 Tex. 134; United States v. Beck-
told Co., C.C.A.Mo., 129 F.2d 473, 477.
LEX LOCI SOLUTIONIS. The law of the place
of solution; the law of the place where payment
or performance of a contract is to be made.
LEX LONGOBARDORUM. The law of the Lom-
bards. The name of an ancient code of laws
among that people, framed, probably, between the
fifth and eighth centuries. It continued in force
after the incorporation of Lombardy into the em-
pire of Charlemagne, and traces of its laws and
institutions are said to be still discoverable in some
parts of Italy.
LEX MANIFESTA. Manifest or open law; the
trial by duel or ordeal.
The same with lex apparens, (q. v.). In King John's
charter (chapter 38) and the articles of that charter (chap-
ter 28) the word "manifestam" is omitted.
LEX MERCATORIA. The law-merchant.
That system of laws which is adopted by all commercial
nations, and constitutes a part of the law of the land. It
is part of the common law. Gates v. Fauvre, 74 Ind.App.
382, 119 N.E. 155.
LEX NATURALE. Natural law. See Jus Natur-
ale.
LEX NECESSITATIS EST LEX TEMPORIS; i.
e., INSTANTIS. The law of necessity is the law
of the time; that is, of the instant, or present mo-
ment. Hob. 159.
LEX NEMINEM COGIT AD VANA SEU  INUTIL-
IA PERAGENDA. The law compels no one to
do vain or useless things. Co.Litt. 197b; Broom,
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LEX PRIETORIA
Max. 252; 5 Coke, 21a; Wing. Max. 600; 3
Sharsw.81a.Comm. 144; 2 Bingh.N.C. 121; 13 East
420; Trustees of Huntington v. Nicoll, 3 Johns.
(N.Y.) 598; Lucas v. Board of Canvassers of Lin-
coln County, 116 W.Va. 427, 181 S.E. 77, 78; Baker
v. Happ, 114 Ind.App. 591, 54 N.E.2d 123, 126.
LEX NEMINEM COGIT OSTENDERE QUOD
NESCIRE PRIESUMITUR. Lofft, 569. The law
compels no one to show that which he is presum-
ed not to know.
LEX NEMINI FACIT INJURIAM. The law does
injury to no one. Branch, Princ.; Brown's Ap-
peal, 66 Pa. 157.
LEX NEMINI OPERATUR INIQUUM. The law
works injustice to no one. Jenk.Cent. p. 18, case
33.
LEX NEMINI OPERATUR INIQUUM, NEMINI
FACIT INJURIAM. The law never works an in-
jury, or does a wrong. Jenk.Cent. 22.
LEX NIL FACIT FRUSTRA. The law does noth-
ing in vain. Jenk.Cent. p. 12, case 19; Broom,
Max. 252; 1 Ventr. 417.
LEX NIL FACIT FRUSTRA, NIL JUBET FRUS-
TRA. The law does nothing and commands noth-
ing in vain. 3 Bulstr. 279; Jenk. Cent. 17.
LEX NIL FRUSTRA JUBET. The law com-
mands nothing vainly. 3 Bulst. 280.
LEX NON A REGE EST VIOLANDA. Jenk.
Cent. 7. The law is not to be violated by the king.
LEX NON COGIT AD IMPOSSIBILIA. The law
does not compel the doing of impossibilities.
Broom, Max. 242; Hob. 96; Co. Litt. 231b; 1 Bouv.
Inst. n. 851; Wells v. Burbank, 17 N.H. 411.
LEX NON CURAT DE MINIM'S. Hob. 88. The
law cares not about trifles. The law does not re-
gard small matters.
LEX NON DEFICIT IN JUSTITIA EXHIBENDA.
The law does not fail in showing justice. Jenk.
Cent. p. 31, case 61.
LEX NON EXACTE DEFINIT, SED ARBITRIO
BONI VIRI PERMITTIT. The law does not de-
fine exactly, but trusts in the judgment of a good
man. Bissell v. Briggs, 9 Mass. 475, 6 Am.Dec.
88.
LEX NON FAVET DELICATORUM VOTIS. The
law favors not the wishes of the dainty. Broom,
Max. 379; 9 Coke, 58.
LEX NON INTENDIT ALIQUID IMPOSSIBILE.
The law does not intend anything impossible. 12
Coke, 89a. For otherwise the law should not be
of any effect.
LEX NON PATITUR FRACTIONES ET DIVI-
SIONES STATUUM. The law does not suffer frac-
tions and divisions of estates. Branch, Princ.; 1
Coke, 87a.
Black's Law Dictionary Revised 4th Ed.-67
LEX NON PRZECIPIT INUTILIA, QUIA INU-
TILIS LABOR STULTUS. The law commands
not useless things, because useless labor is fool-
ish. Co. Litt. 197; 5 Co. 89a; Mowry's Case, 112
Mass. 400.
LEX NON REQUIRIT VERIFICARI QUOD AP-
PARET CURIAE. The law does not require that
to be verified [or proved] which is apparent to the
court. 9 Coke, 54b.
LEX NON SCRIPTA. The unwritten or common
law, which includes general and particular cus-
toms, and particular local laws. 1 Steph.Com. 40-
68.
LEX ORDINANDI. The same as lex fori, (q. v.).
LEX PAPIA. POPPIEA. The Papian Poppeaan
law.
A law proposed by the consuls Papius and Poppmus at
the desire of Augustus, A.U.C. 762, enlargiing the Lex Prce-
toria (q. v.) Inst. 3, 8, 2. The law which exempted from
tutelage women who had three children. It is usually con-
sidered with the Lex Julia de maritandis ordinsbus as one
law.
LEX PATRLE. National law. See Meili, Intern.
Law 119.
LEX PETRONIA. The law forbidding masters to
expose their slaves to contests with wild beasts.
Inst. 1, 8.
LEX PLAETORIA. A law designed for the protec-
tion of minors against frauds and allowing them
in certain cases to apply for the appointment of a
guardian. Inst. 1, 23.
LEX PLAUTIA. The law which conferred the
full rights of citizenship on Italy below the Po.
Sand. Just. Introd. § 11.
LEX PLUS LAUDATUR QUANDO RATIONE
PROBATUR. The law is the more praised when
it is approved by reason. Broom, Max. 159; 3
Term 146; 7 Term 252; 7 A. & E. 657.
LEX POETELIA. The law abolishing the right of
a creditor to sell or kill his debtor. Sohm. Rom. L.
210.
LEX POMPEIA. DE PARRICIDILS. The law
which inflicted a punishment on one who had caus-
ed the death of a parent or child.
The offender was by this law to be sewn up in a sack
with a dog, a cock, a viper, and an ape, and thrown into
the sea or a river, so that even in his lifetime he might
begin to be deprived of the use of the elements; that the
air might be denied him whilst he lived and the earth
when he died. Inst. 4, 18, 6.
LEX POSTERIOR DEROGAT PRIORI. A later
statute takes away the effect of a prior one. But
the later statute must either expressly repeal, or
be manifestly repugnant, to, the earlier one.
Broom, Max. 29; Mackeld. Rom. Law, § 7.
LEX PRZETORIA. The praetorian law. A law
by which every freedman who made a will was
commanded to leave a moiety to his patron. Inst.
3, 8, 1. The term has been applied to the rules
that govern in a court of equity. Gilb.Ch. pt. 2.
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LEX PROSPICIT
LEX PROSPICIT, NON RESPICIT. Jenk.Cent.
284. The law looks forward, not backward.
LEX PUBLILIA. The law providing that the
plebiscita should bind the whole people. Inst. 1,
2.
The lex Publilia de sponsu allowed sponsores, unless re-
imbursed within six months, to recover from their princi-
pal by a special actio what they had paid.
LEX PUNIT MENDACIUM. The law punishes
falsehood. Jenk.Cent. p. 15, case 26.
LEX REGIA. The royal or imperial law. A law
enacted (or supposed or claimed to have been en-
acted) by the Roman people, constituting the em-
peror a source of law, conferring the legislative
power upon him, and according the force and ob-
ligation of law to the expression of his mere will
or pleasure. See Inst. 1, 2, 6; Gaius, 1, 5; Mack-
eld. Rom. Law, § 46; Heinecc. Rom. Ant. 1. 1, tit.
2, §§ 62-67; 1 Kent, Comm. 544, note.
LEX REI SITZE. The law of the place of situa-
tion of the thing. It is said to be an inexact mode
of expression; lex situs, or lex loci rei sitce are
better. 29 L.Q.R. 2 (H. Gondy).
LEX REJICIT SUPERFLUA, PUGNANTIA, IN-
CONGRUA. Jenk.Cent. 133. The law rejects su-
perfluous, contradictory, and incongruous things.
LEX REPROBAT MORAM. Jenk.Cent. 35. The
law dislikes delay.
LEX RESPICIT ZEQ1UITATEM. Co.Litt. 24b. The
law pays regard to equity. See 14 Q.B. 504, 511,
512; Broom, Max. 151.
LEX RHODIA. See Rhodian Laws.
LEX ROMANA. See Civil Law; Roman Law.
LEX SACRAMENTALIS. Purgation by oath.
LEX SALICA. See Salic Law.
LEX SCRIBONIA. The law abolishing the usu-
capio servitutis. Sohm, Rom.L. 265.
LEX SCRIPTA. Written law; law deriving its
force, not from usage, but from express legislative
enactment; statute law. 1 Bl.Comm. 62, 85.
LEX SCRIPTA SI CESSET, ID CUSTODIRI
OPORTET QUOD MORIBUS ET CONSUETU-
DINE INDUCTUM EST; ET, SI QUA IN RE
HOC DEFECERIT, TUNC ID QUOD PROXIMUM
ET CONSEQUENS EI EST; ET, SI ID NON AP-
PAREAT, TUNC JUS QUO URBS ROMANA
UTITUR SERVARI OPORTET. 7 Coke, 19. If
the written law be silent, that which is drawn from
manners and custom ought to be observed; and,
if that is in any manner defective, then that which
is next and analogous to it; and, if that does not
appear, then the law which Rome uses should be
followed.
This maxim of Lord Coke is so far followed at the
present day that, in cases where there is no precedent of
the English courts, the civil law is always heard with re-
spect, and often, though not necessarily, followed. Whar-
ton.
LEX SEMPER DABIT REMEDIUM. The law
will always give a remedy. Branch, Princ.;
Broom, Max. 192; Bac.Abr. Actions in general
(B) ; 12 A. & E. 266; 7 Q.B. 451.
LEX SEMPER INTENDIT QUOD CONVENIT
RATION!. Co.Litt. 78b. The law always intends
what is agreeable to reason.
LEX SEMPRONIA. The law preventing senators
from being judges and allowing the office to the
knights. Sand.Just. Introd. § 12.
LEX SILIA. A law concerning personal actions.
Sohm, Rom.L. 155.
LEX SITUS. Modern law Latin for "the law of
the place where property is situated." The general
rule is that lands and other immovables are gov-
erned by the lex situs; e., by the law of the
country in which they are situated. Westl.Priv.
Int.Law, 62.
LEX SPECTAT NATURZE ORDINEM. The law
regards the order of nature. Co.Litt. 197b;
Broom, Max. 252.
LEX SUCCURRIT IGNORANTI. Jenk. Cent. 15.
The law assists the ignorant.
LEX SUCCURRIT MINORIBUS. The law aids
minors. Jenk. Cent. p. 51, case 97.
LEX TALIONIS. The law of retaliation; which
requires the infliction upon a wrongdoer of the
same injury which he has caused to another.
Expressed in the Mosaic law by the formula, "an eye
for an eye ; a tooth for a tooth," etc. In modern inter-
national law, the term describes the rule by which one
state may inflict upon the citizens of another state death.
imprisonment, or other hardship, in retaliation for similar
injuries imposed upon its own citizens.
LEX TERRIE. The law of the land. The com-
mon law, or the due course of the common law;
the general law of the land. Bract. fol. 17b.
Equivalent to "due process of law." In the strict-
est sense, trial by oath; the privilege of making
oath.
Bracton uses the phrase to denote a freeman's privilege
of being sworn in court as a juror or witness, which
jurors convicted of perjury forfeited, (legem terse amit-
tant.) Bract. fol. 292b. The phrase means "the procedure
of the old popular law." Thayer, Evid. 201, quoting Brun-
ner, Schw. 254, and Fortesq. de Laud. c. 26 (Selden's
notes).
LEX UNO ORE OMNES ALLOQUITUR. The
law addresses all with one [the same] mouth or
voice. 2 Inst. 184.
LEX VIGILANTIBUS, NON DORMIENTIBUS,
SUBVENIT. Law assists the wakeful, not the
sleeping. 1 Story, Cont. § 529.
LEX VOCONIA. A plebiscitum forbidding a lega-
tee to receive more than each heir had. Inst. 2,
22.
LEX WALLENSICA. The Welsh law; the law
of Wales. Blount.
LEX WISIGOTHORUM. The law of the Visi-
goths, or Western Goths who settled in Spain;
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LIABILITY
first reduced to writing A. D. 466. A revision of
these laws was made by Egigas. Spelman.
LEY. L. Fr. (A corruption of loi.) Law; the
law. For example, Termes de la Ley, Terms of
the Law.
In another, and an old technical, sense, ley signifies an
oath, or the oath with compurgators; as, it tend sa ley aiu
pleyntiffe. Britton, c. 27.
In Spanish law. A law; the law; law in the
abstract.
LEY CIVILE. In old English law. The civil or
Roman law. Yearb. H. 8 Edw. III. 42. Other-
wise termed "ley escripte," the written law.
Yearb. 10 Edw. III. 24.
LEY GAGER. Law wager; wager of law; the
giving of gage or security by a defendant that he
would make or perfect his law at a certain day.
Litt. § 514; Co. Litt. 294b, 295a.
An offer to make an oath denying the cause of action
of the plaintiff, confirmed by compurgators, which oath
was allowed in certain cases. When it was accomplished,
it was called the "doing of the law," "fesans de ley."
Termes de /a Ley; 2 B. & C. 538; 3 B. & P. 297.
LEYES DE ESTILO (or ESTILLO). In Spanish
law. Laws of the age.
A collection of laws usually published as an appendix to
the Fuero Real; treating of the mode of conducting suits,
prosecuting them to judgment, and entering appeals.
Schm. Civil Law, Introd. 74. Formed under the authority
of Alonzo X. and his son Sancho, and of Fernando el
Emplazado, and published at the end of the 13th century
or beginning of the 14th; some of them are inserted in the
New Recopilacion. 1 New Recop. 354.
LEZE MAJESTY, or LESE MAJESTY. An of-
fense against sovereign power; treason; rebellion.
LIABILITY. The word is a broad legal term.
Mayfield v. First Nat. Bank of Chattanooga, Tenn.,
C.C.A.Tenn., 137 F.2d 1013, 1019. It has been re-
ferred to as of the most comprehensive signifi-
cance, including almost every character of hazard
or responsibility, absolute, contingent, or likely.
Wentz v. State, 108 Neb. 597, 188 N.W. 467, 468.
It has been defined to mean: all character of municipal
debts and obligations, Washington Water Power Co. v.
City of Coeur d'Alene, Idaho, D.C.Idaho, 9 F.Supp. 263,
271; Public Market Co. of Portland v. City of Portland,
171 Or. 522, 130 P.2d 624, 643, 646; amenability or re-
sponsibility, Eberhard v. 'Etna Ins. Co., 235 N.Y.S. 445,
447, 134 Misc. 386; an obligation, one is bound in law or
justice to perform, Murphy v. Chicago League Ball Club,
221 Ill.App. 120, 126; State ex rel. Diederichs v. Board of
Trustees of Missoula County High School, 91 Mont. 300,
7 P.2d 543, 545. An obligation which may or may not
ripen into a debt, Brogan v. Ferguson, 101 Fla. 1306, 131
So. 171, 173. Any kind of debt or liability, either absolute
or contingent, express or implied, Public Market Co. of
Portland v. City of Portland, 171 Or. 522, 130 P.2d 624,
643, 646; any liability whatsoever, In re Tatnall, 102 N.J.
Eq. 445, 141 A. 174, 175; condition of being actually or
potentially subject to an obligation, Enyeart v. City of
Lincoln, 136 Neb. 146, 285 N.W. 314, 318; condition of be-
ing exposed to the upspringing of an obligation to dis-
charge or make good an undertaking of another, or a loss
or deficit, or the being exposed or subject to a given con-
tingency, risk, or casualty which is more or less probable,
First National Bank of East Islip v. National Surety Co.,
228 N.Y. 469, 127 N.E. 478, 480; United States Fidelity &
Guaranty Co. v. Haney, 166 Minn. 403, 208 N.W. 17; con-
dition of being responsible for a possible or actual loss,
penalty, evil, expense, or burden, Wentz v. State, 108 Neb.
597, 188 N.W. 467, 468; condition which creates a duty to
perform an act immediately or in the future, Union Oil Co.
of California v. Basalt Rock Co., 30 Cal.App.2d 317, 86 P.
2d 139, 141; duty to pay money or perform some other
service, Dehne v. Hillman Inv. Co., C.C.A.Pa., 110 F.2d
456, 458; duty which must at least eventually be per-
formed, Vandegrift v. Riley, Cal.Sup., 16 P.2d 734, 736;
estate tax, Lyeth v. Hoey, C.C.A.N.Y., 112 F.2d 4, 6; every
kind of legal obligation, responsibility, or duty, Mayfield
v. First Nat. Bank of Chattanooga, Tenn., C.C.A.Tenn.,
137 F.2d 1013, 1019; fixed liability, Vandegrift v. Riley,
Cal.Sup., 16 P.2d 734, 736; Ivester v. State ex rel. Gillum,
183 Okl. 519, 83 P.2d 193, 196; legal responsibility, Clark
v. Lowden, D.C.Minn., 43 F.Supp. 261, 263; McCullough v.
National Bank of Union City, 127 Pa,.Super. 452, 193 A. 65,
66; penalty for failure to pay tax when due, State v.
Fischl, 94 Mont. 92, 20 P.2d 1057, 1059; present, current,
future, fixed or contingent debts, Erickson v. Grande
Ronde Lumber Co., 162 Or. 556, 92 P.2d 170, 174; punish-
ment, Holliman v. Cole, 168 Okl. 473, 34 P.2d 597, 599;
responsibility for torts, Italian! v. Metro-Goldwyn-Mayer
Corporation, 45 Cal.App.2d 464, 114 P.2d 370, 372 ; tax,
State ex rel. DuFresne v. Leslie, 100 Mont. 449, 50 P.2d
959, 963, 101 A.L.R. 1329; Thompson v. Smith, 189 Okl.
217, 114 P.2d 922, 924; that which one is under obligation
to pay, or for which one is liable, Reconstruction Finance
Corporation v. Gossett, Tex., 111 S.W.2d 1066; Boney v.
Central Mut. Ins. Co. of Chicago, 213 N.C. 470, 196 S.E.
837, 842; the state of being bound or obliged in law or
justice to do, pay, or make good something. Fell v. City
of Cceur d'Alene, 23 Idaho 32, 129 P. 643, 649, 43 L.R.A.,N.
S., 1095; Breslaw v. Rightmire, 196 N.Y.S. 539, 541, 119
Misc. 833; the state of one who is bound in law and justice
to do something which may be enforced by action. Fideli-
ty Coal Co. v. Diamond, 310 Ill.App. 387, 34 N.E.2d 123;
Clark v. Lowden, D.C.Minn., 48 F.Supp. 261, 263; McCul-
lough v. National Bank of Union City, 127 Pa. Super. 452,
193 A. 65, 66; unliquidated claim, Stephens v. Duckworth,
188 Miss. 626, 196 So. 219, 221; unpaid debt, Comstock v.
Morgan Park Trust & Savings Bank, 367 Ill. 276, 11 N.E.2d
394. 396.
The term is therefore broader than the word "debt," or
"indebtedness," and includes in addition existing ob-
ligations, which may or may not in the future eventuate
in an indebtedness. Daniels v. Goff, 192 Ky. 15, 232 S.W.
66, 67; Irving Bank-Columbia Trust Co. v. New York
Rys. Co., D.C.N.Y., 292 F. 429, 433.
The word is not synonymous with "loss" or "damage,"
and under an automobile insurance policy insuring against
"liabilities," there may be recovery without allegation or
proof that insured has been required to pay any sum,
whereas under a policy covering "actual loss or damage,"
no obligation arises till insured has suffered loss or dam-
age. Ducommun v. Strong, 193 Wis. 179, 214 N.W. 616;
Stag Mining Co. v. Missouri Fidelity & Casualty Co., Mn.,App., 209 S.W. 321, 323.
Existing liability. See Existing Liabilities.
Legal liability. See Legal Liability.
Liability bond. See Bond.
Limited liability. See Limited Liability.
Personal liability. See Personal Liability.
Secondary liability. See Secondary Liability.
Strict liability. See Strict Liability.
LIABILITY CREATED BY STATUTE. One de-
pending for its existence on the enactment of the
statute, and not on the contract of the parties.
Dietrich v. Copeland Lumber Co., 154 P. 626, 628,
28 Idaho 312. One which would not exist but for
the statute. Frank Shepard Co. v. Zachary P. Tay-
lor Pub. Co., 138 N.E. 409, 410, 234 N.Y. 465; Can-
non v. Miller, 22 Wash.2d 227, 155 P.2d 500, 507,
508, 157 A.L.R. 530.
LIABILITY FOR DAMAGES. Liability for an
amount to be ascertained by trial of the facts in
particular cases. Hurt v. Pennsylvania Thresher-
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LIABILITY
men & Farmers' Casualty Ins. Co., 175 Md. 403,
2 A.2d 402, 406.
Liability Imposed by Law. Liability imposed in
a definite sum by a final judgment against assured.
Girard v. Commercial Standard Ins. Co., 66 Cal.
App.2d 483, 152 P.2d 509, 513; total liability im-
posed by law upon a person. Schwartz v. Merola
Bros. Const. Corporation, 290 N.Y. 145, 48 N.E.2d
299, 303.
LIABILITY INSURANCE. Indemnity against lia-
bility, Zieman v. U. S. Fidelity & Guaranty Co. of
Baltimore, Md., 214 Iowa 468, 238 N.W. 100, 102.
Twichell  Hetzel, 145 Kan. 139, 64 P.2d 557, 559;
Indemnity against loss or liability. Employers'
Liability Assur. Corporation, Limited, of London,
England v. C. E. Carnes & Co., D.C.La., 24 F.Supp.
128, 135; State ex rel. Travelers' Indemnity Co. v.
Knott, 114 Fla. 820, 153 So. 304, indemnity against
loss through liability. Trandum v. Trandum, 187
Minn. 327, 245 N.W. 380, 381. Martin v. Zurich
General Accident & Liability Ins. Co., C.C.A.R.I.,
84 F.2d 618. See, also, Insurance.
LIABLE. 1. Bound or obliged in law or equity;
responsible; chargeable; answerable; compellable
to make satisfaction, compensation, or restitution.
Homan v. Employers Reinsurance Corporation, 345
Mo. 650, 136 S.W.2d 289, 298, 127 A.L.R. 163; State
v. Albert, 125 Me. 325, 133 A. 693, 694. Obligated;
accountable for or chargeable with. Wilhelm v.
Parkersburg, M. & I. Ry. Co., 74 W.Va. 678, 82 S.E.
1089, 1091.
2. Exposed or subject to a given contingency,
risk, or casualty, which is more or less probable.
Jennings v. National American, Mo.App., 179 S.W.
789; Pacific Fire Ins. Co. v. Murdoch Cotton Co.,
193 Ark. 327, 99 S.W.2d 233, 235. Exposed, as to
damage, penalty, expense, burden, or anything un-
pleasant or dangerous; justly or legally responsi-
ble or answerable. Breslaw v. Rightmire, 196 N.
Y.S. 539, 541, 119 Misc. 833.
3. Condition of being bound to respond because
a wrong has' occurred. State v. Grand Forks Coun-
ty, 71 N.D. 355, 300 N.W. 827, 831. Condition out
of which a legal liability might arise. Pacific Fire
Ins. Co. v. Murdoch Cotton Co., 193 Ark. 327, 99 S.
W.2d 233, 235.
4. Future possible or probable happening which
may not actually occur, and relates to an occur-
rence within the range of possibility. Alabama
Great Southern R. Co. v. Smith, 209 Ala. 301, 96 So.
239, 240; Pacific Fire Ins. Co. v. Murdoch Cotton
Co., 99 S.W.2d 233, 235, 193 Ark. 327.
5. In all probability. Neely v. Chicago Great
Western R. Co., Mo.App., 14 S.W.2d 972, 978.
LIABLE FOR SUCH TAX. Subject to a tax.
Houston Street Corporation v. Commissioner of
Internal Revenue, C.C.A.Tex., 84 F.2d 821, 822.
LIABLE TO ACTION. Liable to judgment in giv-
en action. Haas v. New York Post Graduate Med-
ical School and Hospital, 226 N.Y.S. 617, 620, 131
Misc. 395.
LIABLE TO PENALTY. Subject to penalty. The
Motorboat, D.C.N.J., 53 F.2d 239, 241.
LIARD. An old French coin, of silver or copper,
formerly current to a limited extent in England,
and there computed as equivalent to a farthing.
LIBEL, v.
Admiralty Practice. To proceed against, by filing
a libel; to seize under admiralty process, at the
commencement of a suit.
Torts. To defame or injure a person's reputation
by a published writing.
LIBEL, n.
In Practice. The initiatory pleading on the part
of the plaintiff or complainant in an admiralty or
ecclesiastical cause, corresponding to the declara-
tion, bill, or complaint.
A written statement by a plaintiff of his cause of action,
and of the relief he seeks to obtain in a suit. Ayliffe, Par.
346; Shelf.Marr. & D. 506; Dunl.Adm.Pr. in.
In Scotch Law. The form of the complaint or
ground of the charge on which either a civil ac-
tion or criminal prosecution takes place. Bell. A
libel of accusation is the instrument which con-
tains the charge against a person accused of a
crime. Libels are of two kinds, namely, indict-
ments and criminal letters.
In Torts. A method of defamation expressed by
print, writing, pictures, or signs. Spence v. John-
son, 142 Ga. 267, 82 S.E. 646, 647, Ann.Cas.1916A,
1195. In its most general sense any publication
that is injurious to the reputation of another.
Ajouelo v. Auto-Soler Co., 61 Ga.App. 216, 6 S.E.
2d 415, 418. Flake v. Greensboro News Co., 212
N.C. 780, 195 S.E. 55, 60. Libel is written defa-
mation. Locke v. Gibbons, 299 N.Y.S. 188, 192,
193, 164 Misc. 877. Defamatory words read aloud
by speaker from written article and broadcast by
radio constitute libel. Sorensen v. Wood, 123
Neb. 348, 243 N.W. 82; Hartman v. Winchell, 73
N.E.2d 30, 296 N.Y. 296.
Accusation in writing or printing against the character
of a person which affects his reputation, in that it tends
to hold him up to ridicule, contempt, shame, disgrace, or
obloquy, to degrade him in the estimation of the communi-
ty, to induce an evil opinion of him in the minds of right-
thinking persons, to make him an object of reproach, to
diminish his respectability or abridge his comforts, to
change his position in society for the worse, to dishonor
or discredit him in the estimation of the public, or his
friends and acquaintances, or to deprive him of friendly
intercourse in society, or cause him to be shunned or avoid-
ed, or where it is charged that one has violated his public
duty as a public officer. Stevens v. Wright, 107 Vt. 337,
179 A. 213, 217.
Almost any language which upon its face has a natural
tendency to injure a man's reputation, either generally or
with respect to his occupation. Washer v. Bank of Amer-
ica Nat. Trust & Savings Ass'n, 21 Ca1.2d 822, 136 P.2d
297, 300, 155 A.L.R. 1338.
Censorious or ridiculing writing, picture, or sign made
with a mischievous intent. People v. Croswell, 3 Johns.
Cas. (N.Y.) 354; Steele v. Southwick, 9 Johns. (N.Y.) 215;
McCorkle v. Binns, 5 Bin. (Pa.) 348, 6 Am. Dec. 420.
Disparagement of goods is a form of libel. Black &
Yates v. Mahogany Ass'n, D.C.Del., 34 F.Supp. 450, 456.
False accusation which dishonors or discredits a man
in estimate of public or his friends and acquaintances or
has a reasonable tendency to do so. Stoll v. Long Islander
Pub. Co., Sup., 40 N.Y.S.2d 412, 413.
False and malicious publication, which charges an of-
fense punishable by indictment, or which tends to bring
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Individual into public hatred, contempt, or ridicule, or
charges an act odious and disgraceful in society. White v.
Birmingham Post Co., 233 Ala. 547, 172 So. 649, 651.
False and malicious publication intended to injure repu-
tation or expose person to public contempt or ridicule.
Woolf v. Scripps Pub. Co., 35 Ohio App. 343, 172 N.E.
389, 390; O'Brien v. Clement, 15 Mees. & W. 435. Or a
written statement, injurious to his trade. 7 App.Cas. 741.
False and malicious publication which tends to blacken
the memory of one who is dead or to degrade or injure one
who is alive, or bring him in contempt, hatred, or ridicule,
or which accuses him of any crime punishable by law, or
of any act odious or disgraceful to society. Cole v. Com-
monwealth, 222 Ky. 350, 300 S.W. 907, 910; Wells v. Times
Printing Co., 77 Wash. 171, 137 P. 457, 459.
False and malicious writing published of another when
its tendency is to render him contemptible or ridiculous in
public estimation, or expose him to public hatred or con-
tempt; Wood v. Hannett, 35 N.M. 23, 289 P. 590, 592; Tal-
bot v. Mack, 41 Nev. 245, 169 P. 25. 30, or hinder virtuous
men from associating with him. Wood v. Hannett, 35 N.
M. 23, 289 P. 590, 592 ; Burns v. Telegram Pub. Co., 89
Conn. 549, 94 A. 917, 918.
False publication that humiliates a person and degrades
one in the estimation of others and subjects a person to
loss of social prestige. Ransom v. Matson Nay . Co., D.C.
Wash., 1 F.Supp. 244, 247.
False and unprivileged publication by writing, printing,
pictures, effigy or other fixed representation to the eye
which exposes any person to hatred, contempt, ridicule
or obloquy or which causes him to be shunned or avoided,
or which has a tendency to injure him in his occupation.
Civ.Code Cal. § 45; Penal Law N.Y. (Consol.Laws, c. 40) §
1340; Civ.Code S.D. § 29 (Rev.Code 1919, § 95) ; Comp.
Laws N.D. 1913, § 4352; Ajouelo v. Auto-Soler Co., 61 Ga.
App. 216, 6 S.E.2d 415, 418.
False and unprivileged publication, which tends to im-
pair the social standing of a man, to make him contempti-
ble or ridiculous, or to deprive him of the confidence, good
will, or esteem of his fellow men. Robinson v. Johnson,
C.C.A.Mo., 239 F. 671, 673.
Malicious defamation, expressed either by writing, print-
ing, or by signs or pictures, or the like, tending to blacken
the memory of one who is dead, or to impeach the honesty,
integrity, virtue, or reputation, or publish the natural or
alleged defects, of one who is alive, and thereby to expose
him to public hatred, contempt, or ridicule. Pen.Code
Cal. § 248; Bac.Abr. tit. "Libel;" 1 Hawk.P.C. 1, 73, § 1;
Brown v. Elm City Lumber Co., 167 N.C. 9, 82 S.E. 961,
962, L.R.A.1915E, 275, Ann.Cas.1916E, 631; Ilitzky v. Good-
man, 57 Ariz. 216, 112 P.2d 860, 862, 863.
Malicious defamation of person by printing, writing,
sign, picture, representation, or effigy tending to provoke
him to wrath or expose him to public hatred, contempt, or
ridicule, or to deprive him of benefits of public confidence
and social intercourse. Hylsky v. Globe Democrat Pub.
Co., 348 Mo. 83, 152 S.W.2d 119, 122; Shaw Cleaners &
Dyers v. Des Moines Dress Club, 215 Iowa 1130, 245 N.W.
231, 234, 86 A.L.R. 839.
Malicious falsehood expressed by writing, printing, or
by signs or pictures, which tends to bring any person into
disrepute, contempt or ridicule. Ilitzky v. Goodman, 57
Ariz. 216, 112 P.2d 860, 862, 863.
Malicious publication tending either to blacken or injure
the memory of one dead or the reputation of one alive and
expose him to public hatred, contempt or ridicule. Sarkees
v. Warner-West Corporation, 349 Pa. 365, 37 A.2d 544, 546;
Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246,
248, 146 A.L.R. 732; Hinson v. Pollock, 159 Tenn. 1, 15
S.W.2d 737, 738.
Printed or written article which has a tendency to ex-
pose one to public contempt, scorn, obloquy, ridicule,
shame or disgrace, or tending to induce an evil opinion
of him in the minds of right thinking persons, or injure
him in his profession, occupation, or trade. Dall v. Time,
Inc., 300 N.Y.S. 680, 684, 685, 252 App.Div. 636.
Printed or written article which tends to expose plain-
tiff to public contempt, ridicule, aversion, or disgrace, or
induce an evil opinion of him in the minds of right-think-
ing persons and deprives him of their friendly intercourse
in society. Neaten v. Lewis Apparel Stores, 48 N.Y.S.2d
492, 495, 267 App. Div. 728.
Printed or written statement which falsely and mali-
ciously charges another with the commission of a crime,
Duncan v. Record Pub. Co., 145 S.C. 196, 143 S.E. 31, 58;
Peinhardt v. West, 217 Ala. 12, 115 So. 88, 89.
Publication by any means other than words orally spok-
en of any false and scandalous matter with intent to in-
jure or defame another. L.O.L. Or. § 1930 (Code 1930, §
14-238).
Publication that tends to disgrace, degrade, or injure
reputation of person or bring him into contempt, hatred,
or ridicule. Cummins v. State, 166 N.E. 155, 157, 89 Ind.
App. 256; Axton Fisher Tobacco Co. v. Evening Post Co.,
169 Ky. 64, 183 S.W. 269, 274, L.R.A.1916E, 667, Ann.Cas.
1918B, 560.
Publication which falsely charges or imputes dishonesty,
or engagement in fraudulent enterprises of such a nature
as reflects on the character and integrity of a person, and
to subject him to the loss of public confidence and respect.
Smith v. Pure Oil Co., 278 Ky. 430, 128 S.W.2d 931, 932.
That which is written or printed, and published, calcu-
lated to injure the character or reputation of another by
bringing him into ridicule, hatred, or contempt. Palmer
v. Concord, 48 N.H. 211, 97 Am. Dec. 605; Collins v. Dis-
patch Pub. Co., 152 Pa. 187, 25 A. 546, 34 Am.St.Rep. 636;
Hartford v. State, 96 Ind. 463, 49 Am.Rep. 185; 15 M. & W.
344; Hughes v. Samuels Bros., 179 Iowa, lort, 159 N.W.
589, 590, L.R.A.1917F, 1088.
Writing that discredits plaintiff in minds of any con-
siderable and respectable class in the community. Streeter
v. Eldridge, 311 Mass. 180, 40 N.E.2d 254, 255.
Libels have been classified according to their objects:
(1) Libels which impute to a person the commission of a
crime; (2) libels which have a tendency to injure_ him in
his office, profession, calling, or trade; (3) libels which
hold him up to scorn and ridicule and to feelings of con-
tempt or execration, impair him in the enjoyment of gen-
eral society, and injure those imperfect rights of friendly
intercourse and mutual benevolence which man has with
respect to man. Newell, Sian. & L. 67.
Criminal libel. See Criminal.
Seditious libel. See Seditious Libel.
LIBEL OF REVIEW. New proceeding instituted
to attack final decree after expiration of term
and right to appeal. The Astorian, C.C.A.Cal.,
57 F.2d 85, 87.
LIBELANT. The complainant or party who files
a libel in an ecclesiastical or admiralty case, cor-
responding to the plaintiff in actions at law.
LIBELEE. A party against whom a libel has
been filed in an ecclesiastical court or in admiralty,
corresponding to the defendant in a common-law
action.
LIBELLUS. Lat.
In civil law. A little book.
Libellus supplex, a petition, especially to the emperor, all
petitions to whom must be in writing. Libellum rescrib-
ere, to mark on such petition the answer to it. Libellumagere, to assist or counsel the emperor in regard to such.
petitions. Libellus accusatorius, an information and accu-
sation of a crime. Libellus divortii, a writing of divorce-
ment. Libellus rerum, an inventory. Calvin. Libellus ororatio consultoria, a message by which emperors laid mat-
ters before the senate. Calvin. Libellus appellaterius,
an appeal. Calvin.
A writing in which are contained the names of the
plaintiff (actor) and defendant, (reus,) the thing sought,
the right relied upon, and name of the tribunal before
which the action is brought. Calvin.
In Feudal law. An instrument of alienation or
conveyance, as of a fief, or a part of it.
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Also, a bill. Bracton, fol. 112. Sometimes called
libellus conventionis (q. v.).
LIBELLUS CONVENTIONIS. In the civil law.
The statement of a plaintiff's claim in a petition
presented to the magistrate, who directed an of-
ficer to deliver it to the defendant.
LIBELLUS FAMOSUS. In the civil law. A de-
famatory publication; a publication injuriously
affecting character; a libel. Inst. 4, 4, 1; Dig. 47,
10; Cod. 9, 36.
LIBELOUS. Defamatory; of the nature of a
libel; constituting or involving libel. See, also,
Libel.
LIBELOUS PER QUOD. Expressions "libelous
per quod" are such as require that their injurious
character or effect be established by allegation
and proof. Talbot v. Mack, 41 Nev. 245, 169 P.
25, 32. They are those expressions which are not
actionable upon their face, but which become so
by reason of the peculiar situation or occasion up-
on which the words are written. Oliveros v. Hen-
derson, 116 S.C. 77, 106 S.E. 855, 857; Norton v,
Great Atlantic & Pacific Tea Co., 184 S.C. 525, 193
S.E. 126, 128. Publications which are susceptible
of two reasonable interpretations, one of which
is defamatory and the other is not, or publications
which are not obviously defamatory, but which
become so when considered in connection with in-
nuendo, colloquium, and explanatory circumstan-
ces, Flake v. Greensboro News Co., 212 N.C. 780,
195 S.E. 55, 59.
LIBELOUS PER SE. A publication is libelous
per se when the words are of such a character
that an action may be brought upon them without
the necessity of showing any special damage, the
imputation being such that the law will presume
that any one so slandered must have suffered
damage. See Mayrant v. Richardson, 1 Nott. &
McC. (S.C.) 349, 9 Am.Dec. 707; Woolworth v.
Star Co., 97 App.Div. 525, 90 N.Y.S. 147; Morse
v. Times-Republican Printing Co., 124 Iowa 707,
100 N.W. 867. To render words "libelous per se,"
the words must be of such character that a pre-
sumption of law will arise therefrom that the
plaintiff has been degraded in the estimation of
his friends or of the public or has suffered some
other loss either in his property, character, repu-
tation, or business or in his domestic or social
relations. Whitaker v. Sherbrook Distributing
Co., 189 S.C. 243, 200 S.E. 848, 849. See, also, Ac-
tionable Words.
Publications or words have been held libelous per se
which charge a public officer with a crime or misdemeanor
in office, Sweeney v. Philadelphia Record Co., C.C.A.Pa.,
126 F.2d 53, 54, 55; disparage a man in his profession,
office, trade or occupation, De Pasquale v. Westchester
Newspapers, 8 N.Y.S.2d 829, 831, 170 Misc, 268; Washer
v. Bank of America Nat. Trust & Savings Ass'n, 21 Ca1.2d
822, 136 P.2d 297, 301, 155 A.L.R. 1338; dishonor or dis-
credit a man in estimate of the public or his friends and
acquaintances, or expose him to ridicule, or have a reason-
able tendency to do so, O'Leary v, Hearst Magazines, 4
N.Y.S.2d 79, 167 Misc. 481; expose a person to hatred, dis-
trust, contempt, ridicule, or obloquy, or tend to cause him
to be shunned or avoided, or to injure him in office, oc-
cupation, business, or employment. Layne v. Tribune Co.,
108 Fla. 177, 146 So, 234, 236, 86 A.L.R. 466; Harris v.
Curtis Pub, Co., 49 Cal.App.2d 340, 121 P.2d 761, 763, 764;
impute crime, Martin v. Markley, 202 La. 291, 11 So.2d 593,
596, 597; Le Moine v. Spicer, 146 Fla. 758, 1 So.2d 730, 731,
732; impute dishonesty, Ripps v. Herrington, 241 Ala. 209,
1 So.2d 899, 902; impute infectious disease, Flake v.
Greensboro News Co., 212 N.C. 780, 195 S.E. 55; impute
insolvency, Kirkman v. Westchester Newspapers, 24 N,.Y.S.
2d 860, 864, 261 App.Div. 181; Impute to public officer mis-
conduct in office, want of official integrity or fidelity to pub-
lic trust, Ziebell v. Lumbermens Printing Co., 14 Wash.2d
261, 127 P.2d 677, 680, 681; may well lead right thinking
people to believe public official unworthy of public trust
and confidence, Sweeney v, Schenectady Union Pub. Co.,
C.C.A.N.Y., 122 F.2d 288, 290, 291; tend either to blacken
the memory of one dead or the reputation of one who is
alive and expose him to public hatred, contempt, or ridi-
cule, Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E.
55; tend to alienate from a business the good will and
patronage of a large class of its customers, Emde v. San
Joaquin County Central Labor Council, Cal.App., 132 P.2d
279, 286, 287; tend to degrade or disgrace plaintiff or to
subject him to public distrust, ridicule, or contempt, Jude-
vine v. Benzies-Montanye Fuel & Warehouse Co., 222 Wis.
512, 269 N.W. 295, 298, 299, 106 A.L.R. 1443; Towles v. Trav-
elers Ins. Co., 282 Ky. 147, 137 S.W.2d 1110, 1111; tend to
expose one to public hatred, shame, obloquy, contumely,
odium, contempt, ridicule, aversion, ostracism, degrada-
tion, or disgrace, or to induce an evil opinion of one in
the minds of right-thinking persons, and to deprive one of
their confidence and friendly intercourse, Harris v. Twen-
tieth Century Fox Film Corporation, D.C.N.Y., 43 F.Supp.
119, 121, 122; Adle v. Herald Co., Sup., 36 N.Y.S.2d 905,
907; tend to injure plaintiff in his business and occupation
and to ruin his name and reputation for honesty, integri-
ty and virtue, and thereby expose him to public hatred,
contempt or ridicule, Browder v. Cook, D.C.Idaho, 59 F.
Supp. 225, 231, 232; tend to injure reputation and to ex-
pose to public hatred, contempt, or shame, Hall v. Bing-
hamton Press Co., Sup., 29 N.Y.S.2d 760, 769, 772.
LIBER, adj. Lat. Free; open and accessible,
as applied to courts, places, etc.; of the state or
condition of a freeman, as applied to persons.
Exempt from the service or jurisdiction of an-
other.
LIBER, n. Lat. A book, of whatever material
composed; a main division of a literary work.
LIBER ASSISARUM. The Book of Assizes or
pleas of the crown.
A collection of cases that arose on assizes and other
trials in the country. It was the fourth volume of the re-
ports of the reign of Edward III. 3 Reeve, Eng.Law, 148.
LIBER AUTHENTICORUM. The authentic col-
lection of the novels of Justinian, so called to dis-
tinguish them from the Epitome Juliani, Sohm,
Rom. L. 14,
LIBER BANCUS. In old English law. Free
bench. Bract. fol. 97b.
LIBER ET LEGALIS HOMO. In old English law.
A free and lawful man. A term applied to a jur-
or, or to one worthy of being a juryman, from the
earliest period.
LIBER FEUDORUM. See Feudorum Liber.
LIBER HOMO. See Homo Liber,
LIBER JUDICIAL'S OF ALFRED. Alfred's
dome-book. See Dombed; Dome-Book.
LIBER JUDICIARUM. The book of judgment, or
doom-book. The Saxon Domboc. Conjectured to
be a book of statutes of ancient Saxon kings. See
Jacob, Domboc; 1 Bla. Comm. 64.
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LIBER NIGER. Black book or register in the
exchequer. Chartularies of abbeys, cathedrals,
etc. A name given to several ancient records.
See Niger Liber,
LIBER NIGER DOMUS REGIS. The black book
of the king's household.
The title of a book in which there is an account of the
household establishment of King Edward IV., and of the
several musicians retained in his service, as well for his
private amusement as for the service in his chapel. Enc.
Lond.
LIBER NIGER SCACCARIL The black book of
the exchequer, attributed to Gervase of Tilbury.
1 Reeve, Eng. Law, 220, note.
LIBER RUBER SCACCARII. The red book of the
exchequer. 1 Reeve, Eng. Law, 220, note.
LIBERA. Lat. (Feminine of liber, adj.) Free;
at liberty; exempt; not subject to toll or charge.
It is also a livery or delivery of so much corn or grass
to a customary tenant, who cut down or prepared the said
grass or corn, and received some part or small portion of
it as a reward or gratuity. Cowell.
LIBERA BATELLA. In old records. A free boat;
the right of having a boat to fish in a certain wa-
ter; a species of free fishery.
LIBERA CHASEA HABENDA. A judicial writ
granted to a person for a free chase belonging to
his manor after proof made by inquiry of a jury
that the same of right belongs to him. Wharton.
LIBERA ELEEMOSYNA. In old English law.
Free alms; frankalmoigne. Bract. fol. 27b.
LIBERA FALDA. In old English law. Frank
fold; free fold; free foldage. 1 Leon. 11.
LIBERA LEX. In old English law. Free law;
frank law; the law of the land.
The law enjoyed by free and lawful men, as distin-
guished from such men as have lost the benefit and pro-
tection of the law in consequence of crime. Hence this
term denoted the status of a man who stood guiltless be-
fore the law, and was free, in the sense of being entitled
to its full protection and benefit. Amittere liberam legem
(to lose one's free law) was to fall from that status by
crime or infamy. See Co.Litt. 94b.
LIBERA PISCARIA. In old English law. A free
fishery. Co. Litt. 122a.
LIBERA WARRENA. In old English law. Free
warren, (q. v.).
LIBERAL. Free in giving; generous; not mean
or narrow-minded; not literal or strict.
LIBERAL CONSTRUCTION OR INTERPRETA-
TION. See Construction.
LIBERAL SYSTEM OF PUBLIC SCHOOLS. Con-
stitutional provision requiring "liberal system of
public schools" means that schools shall be liber-
ally maintained and be open to common and gen-
eral use. Vincent v. County Board of Education
of Talladega County, 222 Ala. 216, 131 So. 893, 894.
LIBERAM LEGEM AMITTERE. To lose one's
free law, (called the villainous judgment,) to be-
come discredited or disabled as juror and witness,
to forfeit goods and chattels and lands for life,
to have those lands wasted, houses razed, trees
rooted up, and one's body committed to prison.
It was anciently pronounced against conspirators,
but is now disused, the punishment substituted
being fine and imprisonment. Hawk. P. C. 61, c.
lxxii., s. 9; 3 Inst. 221; Jones v. Brinkley, 174 N.C.
23, 93 S.E. 372, 374.
LIBERARE. Lat.
In old English law. To deliver, transfer, or hand
over. Applied to writs, panels of jurors, etc.
Bract. fols. 116; 176b.
In the civil law. To free or set free; to liberate;
to give one his liberty. Calvin.
LIBERATA PECUNIA NON LIBERAT OFFER-
ENTEM. Co. Litt. 207. Money being restored
does not set free the party offering.
LIBERATE. In old English practice. An origin-
al writ issuing out of chancery to the treasurer,
chamberlains, and barons of the exchequer, for
the payment of any annual pension, or other sum.
Reg. Orig. 193; Cowell.
A writ issued to a sheriff, for the delivery of any lands
or goods taken upon forfeits of recognizance. 4 Coke, 64b.
A writ issued to a gaoler for the delivery of a prisoner
that had put in bail for his appearance. Cowell.
A writ which issues on lands, tenements, and chattels,
being returned under an extent on a statute stanle, com-
manding the sheriff to deliver them to the plaintiff, by the
extent and appraisement mentioned in the writ of extent
and in the sheriff's return thereto. See Com.Dig. Statute
Staple (D 6).
LIBERATIO.
In old English law. Livery; money paid for
the delivery or use of a thing.
In old Scotch law. Livery; a fee given to a serv-
ant or officer. Skene.
Money, meat, drink, clothes, etc., yearly given
and delivered by the lord to his domestic servants.
Blount.
LIBERATION. In Civil Law. The extinguish-
ment of a contract, by which he who was bound be-
comes free or liberated. Wolff, Dr. de la Nat. §
749. Synonymous with payment. Dig. 50, 16, 47.
LIBERI.
In Saxon law. Freemen; the possessors of al-
lodial lands. 1 Reve, Eng. Law, 5.
In the Civil law. Children. The term included
"grandchildren."
LIBERTAS. Lat. Liberty; freedom; a privilege;
a franchise.
LIBERTAS ECCLESIASTICA. Church liberty, or
ecclesiastical immunity.
LIBERTAS EST NATURALIS FACULTAS EJUS
QUOD CUIQUE FACERD LIBET, NISI QUOD DE
JURE AUT VI PROHIBETUR. Co. Litt. 116.
Liberty is that natural faculty which permits ev-
ery one to do [or the natural power of doing]
anything he pleases except that which is restrain-
ed by law or force.
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LIBERTAS
LIBERTAS INESTIMABILIS RES EST. Liberty
is an inestimable thing; a thing above price. Dig.
50, 17, 106; Fleta, lib. 2, c. 51, § 13.
LIBERTAS NON RECIPIT IESTIMATIONEM.
Freedom does not admit of valuation. Bract. fol.
14.
LIBERTAS OMNIBUS REBUS FAVORABILIOR
EST. Liberty is more favored than all things,
(anything.] Dig. 50, 17, 122.
LIBERTATES REGALES AD CORONAM SPEC-
TANTES EX CONCESSIONE REGUM A COR-
ONA. EXIERUNT. 2 Inst. 496. Royal franchises
relating to the crown have emanated from the
crown by grant of kings.
LIBERTATIBUS ALLOCANDIS. A writ lying for
a citizen or burgess, impleaded contrary to his lib-
erty, to have his privilege allowed. Reg. Orig.
262.
LIBERTATIBUS EXIGENDIS IN ITINERE. An
ancient writ whereby the king commanded the
justices in eyre to admit of an attorney for the
defense of another's liberty. Reg. Orig. 19.
LIBERTI, LIBERTINI. Lat. In Roman law.
Freedmen. The condition of those who, having
been slaves, had been made free. 1 Brown, Civ.
Law 99.
There seems to have been some difference in the use of
these two words; the former denoting the manumitted
slaves considered in their relations with their former mas-
ter, who was now called their "patron;" the latter term
applying to them in their status in the general social
economy of Rome subsequent to manumission. Lee. El.
Dr. Rom. § 93. See Morey, Rom.L. 236.
LIBERTICIDE. A destroyer of liberty.
LIBERTIES. Privileged districts exempt from the
sheriff's jurisdiction; as, "gaol liberties." See
Gaol.
In colonial times, laws, or legal rights resting
upon them. The early colonial ordinances in
Massachusetts were termed laws and liberties,
and the code of 1641 the "Body of Liberties." Com.
v. Alger, 7 Cush. (Mass.) 70.
Formerly, political subdivisions of Philadelphia;
as, Northern Liberties.
"Liberties" referred to in statute concerning indecent
liberties with female child are such as common sense of
society would regard as indecent and improper. People v.
Lakin, 286 Mich. 282, 282 N.W. 149, 150.
LIBERTINUM INGRATUM LEGES CIVILES IN
PRISTINAM SERVITUTEM REDIGUNT; SED
LEGES ANGLIZE SEMEL MANUMISSUM SEM-
PER LIBERUM JUDICANT. Co. Litt. 137. The
civil laws reduce an ungrateful freedman to his
original slavery; but the laws of England regard
a man once manumitted as ever after free.
LIBERTY. Freedom; exemption from extrane-
ous control.
Freedom from all restraints except such as are justly im-
posed by law. Ex parte Kreutzer, 187 Wis. 463, 204 N.W.
595, 604. Freedom from restraint, under conditions essential
to the equal enjoyment of the same right by others; free-
dom regulated by law. Kelly v. James, 37 S.D. 272, 157 N.
W. 990, 991. The absence of arbitrary restraint, not immuni-
ty from reasonable regulations and prohibitions imposed in
the interests of the community. Southern Utilities Co. v.
City of Palatka, 86 Fla. 583, 99 So. 236, 240; Nelsen v.
Tilley, 137 Neb. 327, 289 N.W. 388, 392, 126 A.L.R. 729;
Arnold v. Board of Barber Examiners, 45 N.M. 57, 109 P.2d
779, 785.
The power of the will to follow the dictates of its unre-
stricted choice, and to direct the external acts of the in-
dividual without restraint, coercion, or control from other
persons. See Booth v. Illinois, 22 S.Ct. 425, 184 U.S. 425,
46 L.Ed. 623; Munn v. Illinois, 94 U.S. 142, 24 L.Ed. 77;
People v. Warden of City Prison, 51 N.E. 1006, 157 N.Y.
116, 43 L.R.A. 264, 68 Am.St.Rep. 763.
The word "liberty" includes and comprehends all per-
sonal rights and their enjoyment. Rosenblum v. Rosen-
blum, 42 N.Y.S.2d 626, 630, 181 Misc. 78. It embraces
freedom from duress, In re Miner, D.C.I11., 9 F.Supp. 1, 7:
freedom from governmental interference in exercise of in-
tellect, in formation of opinions, in the expression of them,
and in action or inaction dictated by judgment, Zavilla v.
Masse, 112 Colo. 183, 147 P.2d 823, 827; freedom from
servitude, imprisonment or restraint, Committee for Indus-
trial Organization v. Hague, D.C.N.J., 25 F.Supp. 127, 131,
141; People v. Wood, 272 N.Y.S. 258, 151 Misc. 66 ; free-
dom in enjoyment and use of all of one's powers, faculties
and property, Grosjean v. American Press Co., La., 56 S.Ct.
444, 446, 297 U.S. 233, 80 L.Ed. 660; City of Mt. Vernon
v. Julian, 369 Ill. 447, 17 N.E.2d 52, 55, 119 A.L.R. 747;
freedom of assembly, Rosenblum v. Rosenblum, 42 N.Y.S.
2d 626, 630, 181 Misc. 78; freedom of citizen from banish-
ment, Committee for Industrial Organization v. Hague, D.
C.N.J., 25 F.Supp. 127, 141; freedom of conscience, Gobitis
v. Minersville School Dist., D.C.Pa., 21 F.Supp. 581, 584,
587; freedom of contract, State ex rel. Hamby v. Cum-
mings, 166 Tenn. 460, 63 S.W.2d 515; State v. Henry, 3'7'
N.M. 536, 25 P.2d 204, 90 A.L.R. 805; freedom of locomo-
tion or movement, Commonwealth v. Doe, 109 Pa.Super.
187, 167 A. 241, 242; Committee for Industrial Organization
v. Hague, D.C.N.J., 25 F.Supp. 127, 131, 141 ; freedom of oc-
cupation, Koos v. Saunders, 349 Ill. 442, 182 N.E. 415, 418;
freedom of press, Commonwealth v. Nichols, 301 Mass. 584,
18 N.E.2d 166, 167; Near v. State of Minnesota ex rel.
Olson (Minn.) 51 S.Ct. 625, 628, 283 U.S. 697, 75 L.Ed. 1357:
freedom of religion, Gabrielli v. Knickerbocker, 12 Ca1.2d
85, 82 P.2d 391, 393; Hamilton v. City of Montrose, 109
Colo. 228, 124 P.2d 757, 759; Cantwell v. State of Connect-
icut, Conn. , 60 S.Ct. 900, 903, 310 U.S. 296, 84 L.Ed. 1213,
128 A.L.R. 1352 ; freedom of speech, Ghadiali v. Delaware
State Medical Soc., D.C.Del., 28 F.Supp. 841, 844; Carpen-
ters and Joiners Union of America, Local No. 213, v.
Ritter's Cafe, Tex., 62 S.Ct. 807, 809, 315 U.S. 722, 86 L.Ed.
1143. It also embraces right of self-defense against un-
lawful violence, Rohrer v. Milk Control Board, 121 Pa.
Super. 281, 184 A. 133, 136; right to acquire and enjoy
property, Rohrer v. Milk Control Board, 121 Pa.Super. 281,
184 A. 133, 136; right to acquire useful knowledge, Rosen-
blum v. Rosenblum, 42 N.Y.S.2d 626, 630, 181 Misc. 78:
right to carry on business, Mile. Reif, Inc., v. Randau, 1
N.Y.S.2d 515, 518, 166 Misc. 247; right to earn livelihood
in any lawful calling. Saidel v. Village of Tupper Lake,
4 N.Y.S.2d 814, 818, 254 App.Div. 22; right to emigrate,
and if a citizen, to return, Committee for Industrial Or-
ganization v. Hague, D.C.N.J., 25 F.Supp. 127, 141; right
to engage in a lawful business, to determine the price of
one's labor, and to fix the hours when one's place of busi-
ness shall be kept open, State Board of Barber Examiners
v. Cloud, 220 Ind. 552, 44 N.E.2d 972, 980; right to enjoy
to the fullest extent the privileges and immunities given
or assured by law to people living within the country,
McGrew v. Industrial Commission, 96 Utah 203, 85 P.2d
608, 611; right to forswear allegiance and expatriate one-
self, Committee for Industrial Organization v. Hague, D.C.
N.J., 25 F.Supp. 127, 141; right to freely buy and sell as
others may, Rohrer v. Milk Control Board, 121 Pa.Super.
281, 184 A. 133, 136; right to labor, Simon v. Schwachman,
301 Mass. 573, 18 N.E.2d 1, 3; right to live and work where
one will, People v. Wood, 272 N.Y.S. 258, 151 Misc. 66;
right to marry and have a family, Committee for Indus-
trial Organization v. Hague, D.C.N.J., 25 F.Supp. 127, 141;
Rosenblum v. Rosenblum, 42 N.Y.S.2d 626, 630, 181 Misc.
78; right to pursue chosen calling, State v. Chisesi, 187 La.
675, 175 So. 453; People v. Cohen, 8 N.Y.S.2d 70, 72, 255
App.Div. 485; right to use property according owner's
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LIBERTY
will, State Bank & Trust Co. v. Village of Wilmette, 358 '
Ill. 311, 193 N.E. 131, 133, 96 A.L.R. 1327.
Liberty, on its positive side, denotes the fullness of in-
dividual existence; on its negative side it denotes the nec-
essary restraint on all, which is needed to promote the
greatest possible amount of liberty for each. Amos,
Science of Law, p. 90.
The word "liberty" as used in the state and federal Con-
stitutions means, in a negative sense, freedom from re-
straint, but in a positive sense, it involves the idea of free-
dom secured by the imposition of restraint, and it is in this
positive sense that the state. in the exercise of its police
powers, promotes the freedom of all by the imposition
upon particular persons of restraints which are deemed
necessary for the general welfare. Fitzsimmons v. New
York State Athletic Commission, Sup., 146 N.Y.S. 117, 121.
"Liberty," in so far as it is noticed by government, is
restraint, rather than license. It is a yielding of the in-
dividual will to that of the many, subject to such constitu-
tional guarantees or limitations as will preserve those
rights and privileges which are admitted of all men to be
fundamental. "Liberty" in the civil state is a giving up Of
natural right in consideration of equal protection and op-
portunity. Weber v. Doust, 84 Wash. 330, 146 P. 623, 625.
The "personal liberty" guaranteed by Const. U. S.
Amend. 13 consists in fhe power of locomotion without im-
prisonment or restraint unless by due course of law, ex-
cept those restraints imposed to prevent commission of
threatened crime or in punishment of crime committed,
those in punishment of contempts of courts or legislative
bodies or to render their jurisdiction effectual, and those
necessary to enforce the duty citizens owe in defense of
the state to protect community against acts of those who
by reason of mental infirmity are incapable of self-control.
Ex parte Hudgins, 86 W.Va. 526, 103 S.E. 327, 329, 9 A.L.R.
1361.
The "liberty" safeguarded by Fourteenth Amendment is
liberty in a social organization which requires the protec-
tion of law against the evils which menace the health,
safety, morals, and welfare of the people. West Coast
Hotel Co. v. Parrish, Wash., 57 S.Ct. 578, 581, 582, 300 U.S.
379, 81 L.Ed. 703, 108 A.L.R. 1330.
Also, a franchise or personal privilege, being
some part of the sovereign power, vested in an
individual, either by grant or prescription.
The term is used in the expression, rights, liberties, and
franchises, as a word of the same general class and mean-
ing with those words and privileges. This use of the term
is said to have been strictly conformable to its sense as
used in Magna Charta and in English declarations of
rights, statutes, grants, etc.; Corn. v. Alger, 7 Cush.
(Mass.) 70.
In a derivative sense, the place, district, or
boundaries within which a special franchise is en-
joyed, an immunity claimed, or a jurisdiction ex-
ercised. In this sense, the term is commonly used
in the plural; as the "liberties of the city."
Civil Liberty
The liberty of a member of society, being a
man's natural liberty, so far restrained by human.
laws (and no further) as is necessary and exped-
ient for the general advantage of the public. 1
El. Comm. 125; 2 Steph. 487
The power of doing whatever the laws permit. 1 Bl.Comm. 6; Inst. 1, 3, 1. See Dennis v. Moses, 18 Wash. 537,
52 P. 333, 40 L.R.A. 302. The greatest amount of absolute
liberty which can, in the nature of things, be equally pos-
sessed by every citizen in a state. Guarantied protection
against interference with the interests and rights held dear
and important by large classes of civilized men, or by all
the members of a state, together with an effectual share
in the making and administration of the laws, as the best
apparatus to secure that protection. Lieber, Civ.Lib. 24.
Liberty of a Port
In marine insurance. A license or permission
incorporated in a marine policy allowing the ves-
sel to touch and trade at a designated port other
than the principal port of destination. See Al-
legre v. Maryland Ins. Co., 8 Gill & J. (Md.) 200,
29 Am.Dec. 536.
Liberty of Conscience
Liberty for each individual to decide for himself
what is to him religious. Gobitis v. Minersville
School Dist., D.C.Pa., 21 F.Supp. 581, 584. See,
also, Religious Liberty, as defined below.
Liberty of Contract
The ability at will, to make or abstain from mak-
ing, a binding obligation enforced by the sanc-
tions at the law. Judson, Liberty of Contract, Rep.
Am. Bar Ass'n (1891) 233.
The right to contract about one's affairs, including the
right to make contracts of employment, and to obtain the
best terms one can as the result of private bargaining.
Adkins v. Children's Hospital of District of Columbia, 43 S.
Ct. 394, 396, 261 U.S. 525, 67 L.Ed. 785, 24 A.L.R. 1238. It
includes the corresponding right to accept a contract pro-
posed. St. Louis Southwestern Ry. Co. of Texas v. Griffin,
106 Tex. 477, 171 S.W. 703, 704, L.R.A.1917B, 1108. There
is, however, no absolute freedom of contract. The govern-
ment may regulate or forbid any contract reasonably cal-
culated to affect injuriously public interest. Atlantic Coast
Line R. Co. v. Riverside Mills, 31 S.Ct. 164, 219 U.S. 186,
55 L.Ed. 167, 31 L.R.A.,N.S., 7; Carleton Screw Products
Co. v. Fleming, C.C.A.Minn., 126 F.2d 537, 541. It means
freedom from arbitrary or unreasonable restraint, not im-
munity from reasonable regulation to safeguard public
interest, Saucier v. Life & Casualty Ins. Co. of Tennessee,
189 Miss. 693, 198 So. 625, 631; or the right to make con-
tracts with competent persons on a plane of relative parity
or freedom of choice and within the limits allowed or not
forbidden by law. McGrew v. Industrial Commission, 96
Utah 203, 85 P.2d 608, 612.
Liberty of Speech
Freedom accorded by the constitution or laws
of a state to express opinions and facts by word
of mouth, uncontrolled by any censorship or re-
strictions of government.
But language tending to the violation of the rights of
personal security and private property, and toward
breaches of the public peace, is an abuse of the right, State
v. Boyd, 86 N.J.L. 75, 91 A. 586, 587; which is not license,
nor lawlessness, but rather the right to fairly criticize and
comment, State v. Pape, 90 Conn. 98, 96 A. 313, 315. Lib-
erty never has meant the unrestricted right to say what
one pleases at all times and under all circumstances. Fra-
ina v. U. S., C.C.A.N.Y., 255 F. 28, 35. It is not an abso-
lute right. State v. Chaplinsky, 91 N.H. 310, 18 A.2d 754,
760. It has been thought that the liberty to speak includes
the corresponding right to be silent, and that this right is
infringed by a statute compelling a corporation to give a
discharged employee a statement of the cause of discharge.
St. Louis Southwestern Ry. Co. of Texas v. Griffin, 106
Tex. 477, 171 S.W. 703, 705, L.R.A.1917B, 1108. As used in
Constitution, "freedom of speech" means freedom of
speech as it was understood by the common law when the
Constitution was adopted. State v. Boloff, 138 Or. 568, 7
P.2d 775, 781.
Liberty of the Globe
In marine insurance. A license or permission
incorporated in a marine policy authorizing the
vessel to go to any part of the world, instead of
being confined to a particular port of destination.
See Eyre v. Marine Ins. Co., 6 Whart. (Pa.) 254.
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LIBERTY
Liberty of the Press
The right to print and publish the truth, from
good motives and for justifiable ends. People v.
Croswell, 3 Johns. Cas. 394. Kline v. Robert M.
McBride & Co., 11 N.Y.S.2d 674, 679, 170 Misc. 974.
The right to print without any previous license, subject
to the consequences of the law. 3 Term 431; Respublica
v. Dennie, 4 Yeates, Pa., 267, 2 Am.Dec. 402; Williams
Printing Co. v. Saunders, 113 Va. 156, 73 S.E. 472, Ann.Cas.
1913E, 693. The right to publish whatever one may please.
Knapp v. Post Printing & Publishing Co., 111 Colo. 492,
144 P.2d 981, 985; Howard Sports Daily v. Weller, 179 Md.
355, 18 A.2d 210, 215; and to be protected against any
responsibility for so doing except so far as such publica-
tions, from their .blasphemy, obscenity, or scandalous char-
acter, may be a public offense, or as by their falsehood and
malice they may injuriously affect the standing, reputa-
tion, or pecuniary interests of individuals, Cooley, Const.
Lim. p. 422. It is said to consist in this : "That neither
courts of justice, nor any judges whatever, are authorized
to take notice of writings intended for the press, but are
confined to those which are actually printed." De Lolme,
Eng.Const. 254. Immunity from previous restraints or
[from] censorship. Grosjean v. American Press Co., La.,
297 U.S. 233, 56 S.Ct. 444, 449, 80 L.Ed. 660.
Liberty of the Rules
A privilege to go out of the Fleet and Marshal-
sea prisons within certain limits, and there reside.
Abolished by 5 & 6 Vict. c. 22.
Liberty to Hold Pleas
The liberty of having a court of one's own. Thus
certain lords had the privilege of holding pleas
within their own manors.
Natural Liberty
The power of acting as one thinks fit, without
any restraint or control, unless by the law of na-
ture. 1 Bl. Comm. 125.
The right which nature gives to all mankind of disposing
of their persons and property after the manner they judge
most consistent with their happiness, on condition of their
acting within the limits of the law of nature, and so as not
to interfere with an equal exercise of the same rights by
other men. Burlamaqui, c. 3, § 15; 1 Bl.Comm. 125. It is
called by Lieber social liberty, and is defined as the pro-
tection or unrestrained action in as high a degree as the
same claim of protection of each individual admits of.
Personal Liberty
The right or power of locomotion; of changing
situation, or moving one's person to whatsoever
place one's own inclination may direct, without
imprisonment or restraint, unless by due course
of law. 1 Bl. Comm. 134. Civil Rights Cases, 3
S.Ct. 42, 109 U.S. 3, 27 L.Ed. 835; Pinkerton v.
Verberg, 78 Mich. 573, 44 N.W. 579, 7 L.R.A. 507,
18 Am.St.Rep. 473.
Political Liberty
Liberty of the citizen to participate in the op-
erations of government, and particularly in the
making and administration of the laws.
Religious Liberty
Freedom from dictation, constraint, or control
in matters affecting the conscience, religious be-
liefs, and the practice of religion; freedom to en-
tertain and express any or no system of religious
opinions, and to engage in or refrain from any
form of religious observance or public or private
religious worship, not inconsistent with the peace
and good order of society and the general wel-
fare. See Frazee's Case, 63 Mich, 396, 30 N.W. 72,
6 Am.St.Rep. 310; State v. White, 64 N.H. 48, 5 A.
828.
LIBERUM CORPUS NULLAM RECIPIT ;ESTI-
MATIONEM. Dig. 9, 3, 7. The body of a free-
man does not admit of valuation.
LIBERUM EST CUIQUE APUD SE EXPLORARE
AN EXPEDIAT SIBI CONSILIUM. Every one
is free to ascertain for himself whether a recom-
mendation is advantageous to his interest. Up-
ton v. Vail, 6 Johns. (N.Y.) 181, 184, 5 Am.Dec.
210.
LIBERUM MARITAGIUM. In old English law.
Frank-marriage. Bract. fol. 21; Littleton, § 17.
LIBERUM SERVITIUM. Free service. Service
of a warlike sort by a feudatory tenant; some-
times called "servitium liberum armorum." Ja-
cob. See, also, Servitium Liberum.
Service not unbecoming the character of a freeman and
a soldier to perform; as to serve under the lord in his
wars, to pay a sum of money, and the like. 2 Bl. Comm. 60.
The tenure of free service does not make a villein a free-
man, unless homage or manumission precede, any more
than a tenure by villein services makes a freeman a villein.
Bract. fol. 24.
LIBERUM SOCAGIUM. In old English law. Free
socage. Bract. fol. 207; 2 Bl. Comm. 61, 62.
LIBERUM TENEMENTUM.
In Pleading. A plea of freehold. A plea by the
defendant in an action of trespass to real prop-
erty that the locus in quo is his freehold, or that
of a third person, under whom he acted. 1 Tidd,
Pr. 645; 2 Salk. 453; 7 Term 355; 1 Wms. Saund.
299b.
In Realty Law. Freehold. Frank-tenement.
LIBLAC. In Saxon law. Witchcraft, particularly
that kind which consisted in the compounding and
administering of drugs and philters. Sometimes
occurring in the Latinized form liblacum.
LIBRA. In old English law. A pound; also a
sum of money equal to a pound sterling.
LIBRA ARSA. A pound burned; that is, melted,
or assayed by melting, to test its purity. Librcv
arsce et pensatce, pounds burned and weighed.
A frequent expression in Domesday, to denote the
purer coin in which rents were paid. Spelman;
Cowell.
LIBRA NUMERATA. A pound of money counted
instead of being weighed. Spelman.
LIBRA PENSA. A pound of money by weight.
It was usual in former days not only to sell the money,
but to weigh it; because many cities, lords, and bishops,
having their mints, coined money, and often very bad
money, too, for which reason, though the pound consisted
of 20 shillings, they weighed it. Enc.Lond.
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LICENSE
LIBRARIUS. In Roman law. A writer or am-
anuensis; a copyist. Dig. 50, 17, 92.
LIBRARY. While word "library" is at times used
as meaning both a collection of books and the
building or room in which such collection is hous-
ed, it is also used as meaning a collection of books
not kept for sale. In re Mead's Estate, 227 Wis.
311, 277 N.W. 694, 701.
LIBRATA TERRIE. A portion of ground contain-
ing four oxgangs, and every oxgang fourteen
acres. Cowell. This is the same with what in
Scotland was called "pound-land" of old extent.
Wharton. See Oxgang; Pound of Land.
LIBRIPENS. In Roman law. A weigher or bal-
ance-holder. The person who held a brazen bal-
ance in the ceremony of emancipation per ces et
libram. Inst. 2, 10, 1.
A neutral person or balance holder, who was present at
a conveyance of real property. He held in his hand the
symbolic balance, which was struck by the purchaser with
a piece of bronze as a sign of the completion of the con-
veyance. The bronze was then transferred to the seller as
a sign of the purchase money. Morey, Rom. L. 21, 80.
LIBRORUM APPELLATIONE CONTINENTUR
OMNIA VOLUMINA, SIVE IN CHARTA, SIVE
IN MEMBRANA SINT, SIVE IN QUAVIS ALIA
MATERIA. Under the name of books are con-
tained all volumes, whether upon paper, or parch-
ment, or any other material. Dig. 32, 52, pr.
LICENCIADO. In Spanish law. An attorney or
advocate; particularly, a person admitted to the
degree of "Licentiate in Jurisprudence" by any
of the literary universities of Spain and who is.
thereby authorized to practice in all the courts.
Escriche.
LICENSE. Certificate or the document itself
which gives permission. Aldrich v. City of Syra-
cuse, 236 N.Y.S. 614, 617, 134 Misc. 698. Permis-
sion or authority. Independent School Dist.,
Class A, No. 1, Cassia County v. Pfost, 51 Idaho
240, 4 P.2d 893, 897; Monsour v. City of Shreve-
port, 194 La. 625, 194 So. 569, 571; Platt v. Bend-
er, La.App., 178 ,So. 678, 682.
Authority or liberty given to do or forbear any act.
Monsour v. City of Shreveport, 194 La. 625, 194 So. 569,
571. Leave to do thing which licensor could prevent.
Western Electric Co. v. Pacent Reproducer Corporation,
C.C.A.N.Y., 42 F.2d 116, 118. Permission by some compe-
tent authority to do some act which, without such permis-
sion, would be illegal. State ex rel. Zugravu v. O'Brien,
130 Ohio St. 23, 196 N.E. 664; Solberg v. Davenport, 211
Iowa, 612, 232 N.W. 477, 480; Standard Oil Co. (Indiana)
v. State Board of Equalization, 110 Mont. 5, 99 P.2d 229,
234. Permission to do a particular thing, to exercise a cer-
tain privilege or to carry on a particular business or to
pursue a certain occupation. Blatz Brewing Co. v. Collins,
Cal.App. 160 P.2d 37, 39, 40. Permission to do something
which Without the license would not be allowable. City
of Shreveport v. Brister, 194 La. 615, 194 So. 566, 567.
Great Atlantic & Pacific Tea Co. v. City of Lexington, 256
Ky. 595, 76 S.W.2d 894, 896. Privilege from state or sov-
ereign. M. Itzkowitz & Sons v. Geraghty, 247 N.Y.S. 703,
704, 139 Misc. 163; Alabama Power Co. v. Federal Power
Commission, 75 U.S.App.D.C. 315, 128 F.2d 280, 289. Rev-
ocable certificate of convenience and necessity. Ex parte
Lockhart, 350 Mo. 1220, 171 S.W.2d 660, 666. To "license"
means to confer right or power which does not exist with•
out it. Inter-City Coach Lines v. Harrison, 172 Ga. 390
157 S.E. 673, 676; S. S. Kresge Co. v. City of Bluefield, 117
W.Va. 17, 183 S.E. 601, 602.
Admission to Practice
Accountant's certificate is a license to practice
accountancy. Jaeger Mfg. Co. v. Maryland Cas-
ualty Co., 231 Iowa 151, 300 N.W. 680, 683.
Permission to pursue calling of veterinary sur-
gery and medicine. Staniforth v. State, 34 Ohio
App. 239, 170 N.E. 578, 580.
The words "admit" and "license" as used in
statute providing that power to admit and license
persons to practice as attorneys is vested exclu-
sively in the Supreme Court are inseparable and
refer to the same thing. In re H - 5---, 236
Mo.App. 1296, 165 S.W.2d 300, 302.
Burial
Right of burial as license, Bockel v. Fidelity
Development Co., Tex.Civ.App., 101 S.W.2d 628.
Constitutional Law and Law of Contracts
A permission, by a competent authority to do
some act which without such authorization would
be .illegal, or would be a trespass or a tort. State
v. Hipp, 38 Ohio St. 226; Hubman v. State, 61
Ark. 482, 33 S.W. 843, Chicago v. Collins, 175
Ill. 445, 51 N.E. 907, 49 L.R.A. 408, 67 L.R.A. 224.
A permit or privilege to do what otherwise would
be unlawful. Palmetto Fire Ins. Co. v. Beha, D.C.
N.Y., 13 F.2d 500, 505; La Plante v. State Board
of Public Roads, 47 R.I. 258, 131 A. 641, 642; State
ex rel. Biscayne Kennel Club v. Stein, 130 Fla. 517,
178 So. 133, 135. Also, the written evidence of per-
mission.
A permit, granted by the sovereign, generally for a con-
sideration (Smith v. Commonwealth, 175 Ky. 286, 194 S.W.
367, 370), to a person, firm, or corporation to pursue some
occupation or to carry on some business subject to regula-
tion under the police power. State ex rel. Guillot v. Cen-
tral Bank & Trust Co., 143 La. 1053, 79 So. 857, 858.
A "license" is not a contract between the state and the
licensee, but is a mere personal permit. Rosenblatt v. Cali-
fornia State Board of Pharmacy, 69 Cal.App.2d 69, 158 P.2d
199, 203. Neither is it property or a property right. Amer-
ican States Water Service Co. of California v. Johnson, 31
Cal.App.2d 606, 88 P.2d 770, 774; Garford Trucking v. Hoff-
man, 114 N.J.L. 522, 177 A. 882, 887; nor does it create a
vested right. State ex rel. Biscayne Kennel Club v. Stein,
130 Fla. 517, 178 So. 133, 135; Asbury Hospital v. Cass
County, 72 N.D. 359, 7 N.W.2d 438, 452.
Exclusive License
See Exclusive License.
High License
A system for the regulation and restriction of
the traffic in intoxicating liquors, of which the dis-
tinguishing feature is the grant of licenses only to
carefully selected persons and the charging of a
license fee so great in amount as automatically to
limit the number of retailers.
Inflammable Articles
A license to keep, store, and sell inflammable
articles, is not merely a personal privilege, but is
essentially a grant. Street Com'rs of Boston, 307
Mass. 495, 30 N.E.2d 380, 381, 131 A.L.R. 1336.
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LICENSE
International Law
Permission granted by a belligerent state to its
own subjects, or to the subjects of the enemy, to
carry on a trade interdicted by war. Wheat. Int.
Law, 447.
Letter of License
See Letter of License.
Liquor
A license is a permission to do something which
without such permission would have been un-
authorized or prohibited. Collier v. State, 54 Ga.
App. 346, 187 S.E. 843, 845.
A license to sell liquor is merely permit to do that which
otherwise would be unlawful to do and is not property.
Oval Bar & Restaurant v. Bruckman, 30 N.Y.S.2d 394, 395,
177 Misc. 244; State Board of Equalization of California v.
Superior Court in and for City and County of San Fran-
cisco, 5 Cal.App.2d 374, 42 P.2d 1076, 1077. Such license is
a mere privilege. State v. Wipke, 345 Mo. 283, 133 S.W.2d
354, 357. Permits to carry on liquor business are mere
"licenses" revocable as provided in such act and do not
create a property right. State ex rel. Gutter v. Hawley,
Ohio App., 44 N.E.2d 815, 820.
Marriage License
See Marriage License.
Motor Carriers
A grant by state commerce commission of peti-
tion for certificate of convenience and necessity to
operate as motor carrier is the grant of a license.
Railway Express Agency v. Illinois Commerce
Commission, 374 El. 151, 28 N.E.2d 116, 118.
City having right to regulate use of its streets
by motor vehicles for hire may issue licenses, a
license being permission. Ex parte Schutte, 118
Tex.Cr.R. 182, 42 S.W.2d 252, 255.
Motor Vehicles
License to operate motor vehicle is mere priv-
ilege, and not a contract or property right. Gar-
ford Trucking v. Hoffman, 114 N.J.L. 522, 177 A.,
882, 887; Blashfield, Cyc. of Automobile Law and
Prac., Perm. Ed., § 580.
Patent Law
A written authority granted by the owner of a
patent to another person empowering the latter
to make or use the patented article for a limited
period or in a limited territory.
A permission to make, use or sell articles embodying
invention. De Forest Radio Telephone & Telegraph Co. v.
Radio Corporation of America, D.C.Del., 9 F.2d 150, 151.
A transfer which does not affect the monopoly, except by
estopping licensor from exercising his prohibitory powers
In derogation of privileges conferred upon licensee. L. L.
Brown Paper Co. v. Hydroiloid, Inc., D.C.N.Y., 32 F.Supp.
857, 867, 868; De Forest Radio Telephone & Telegraph Co.
v. Radio Corporation of America, D.C.Del., 9 F.2d 150, 151.
An assignment by the patentee to another of rights less in
degree than the patent itself. Arnold v. North American
Chemical Co., 232 Mass. 196, 122 N.E. 283, 284. Any right
to make, use, or sell the patented invention, which is less
than an undivided part interest in the patent itself. Baker
v. Murray Tool & Supply Co., 137 Okl. 288, 279 P. 340, 343.
Any transfer of patent rights short of assignment. Way-
man v. Louis Lipp Co., D.C.Ohio, 222 F. 679, 681. Lan-
guage used by owner of patent, or any conduct on his part
exhibited to another, from which that other may properly
infer that owner consents to his use of patent, on which
the other acts, constitutes a license. General Motors Cor-
poration v. Dailey, C.C.A.Mich., 93 F.2d 938, 941; Finley
v. Asphalt Paving Co. of St. Louis, C.C.A.Mo., 69 F.2d 498,
504. The right not to be sued. L. L. Brown Paper Co. v.
Hydroiloid, Inc., D.C.N.Y., 32 F.Supp. 857, 867, 868. Trans-
fer of exclusive right to do merely two of the three rights
under patent to make, use, and vend invention. Overman
Cushion Tire Co. v. Goodyear Tire & Rubber Co., C.C.
A.N.Y., 59 F.2d 998, 1000.
Pleading
A plea of justification to an action of trespass
that the defendant was authorized by the owner
of the freehold to commit the trespass complained
of.
It is generally revocable at will of owner of land, Mes-
ser v. City of Birmingham, 243 Ala. 520, 10 So.2d 760, 763;
Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 45 P.2d 846,
848.
Real Property Law
Permission or authority to do particular act or
series of acts on land of another without possess-
ing any estate or interest therein. Lang v. Dupuis,
382 Ill. 101, 46 N.E.2d 21, 23, 24; Sisters of Mercy
of Cedar Rapids v. Lightner, 223 Iowa 1049, 274
N.W. 86, 94; Stanolind Pipe Line Co. v. Ellis, 142
Kan. 102, 45 P.2d 846, 848. A permissive use.
Novinger v. Shoop, Mo.Sup., 201 S.W. 64, 66; Cald-
well v. Gem Packing Co., 52 Cal.App.2d 80, 125 P.
2d 901, 903.
Also, the written evidence of authority accorded.
Executed license. That which exists when the
licensed act has been done.
Executory license. That which exists where the
licensed act has not been performed.
Express license. One which is granted in direct
terms.
Implied license. One which is presumed to
have been given from the acts of the party author-
ized to give it.
Simple license. One revocable at the will of the
grantor; i. e., one not coupled with a grant. Cook
v. Stearnes, 11 Mass. 533; Mumford v. Whitney,
15 Wend. (N.Y.) 380, 30 Am.Dec. 60; Fluker v.
Banking Co., 81 Ga. 461, 8 S.E. 529, 2 L.R.A. 843,
12 Am.St.Rep. 328; Wheeler v. West, 78 Cal. 95,
20 P. 45; Cowles v. Kidder, 24 N.H. 364, 57 Am.
Dec. 287.
A license is a personal privilege, Minnesota Valley Gun
Club v. Northline Corporation, 207 Minn. 126, 290 N.W. 222,
224; Burnham v. Burnham, 130 Me. 409, 156 A. 823, 825;
a personal, revocable, and unassignable privilege, Schn-
uerle v. Gilbert, 43 S.D. 535, 180 N.W. 953, 954; Morrison
v. Fellman, 271 N.Y.S. 436, 150 Misc. 772; Beckett v. City
of Paris Dry Goods Co., 14 Ca1.2d 633, 96 P.2d 122, 124; a
privilege to occupy under the owner, Rhode Island Marine
Transp. Co. v. Interstate Nay . Co., 52 R.I. 322, 161 A. 108,
109; San Juan Gold Co. v. San Juan Ridge Mut. Water
Ass'n, 34 Cal.App.2d 159, 93 P.2d 582, 589; an authority to
do a particular act or series of acts which would amount
to a trespass without permission, Barnett v. Lincoln, 162
Wash. 613, 299 P. 392, 394. It does not operate to confer
upon or vest in licensee any title, interest or estate in
property and licensee is "estopped" during time that
license exists to deny title of licensor or of any one claim-
ing under him, Wood v. Gregory, Mo., 155 S.W.2d 168, 171,
172. It is unassignable, 'Sweeney v. Bird, 293 Mich. 624, 292
N.W. 506, 508, 509.
A license is distinguished from an "easement," which
implies an Interest in the land, and a "lease," or right to
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take the profits of land. It may be, however, and often, is,
coupled with a grant of some interest in the land itself, or
right to take the profits. 1 Washb.Real Prop. *398; Davis
v. Tway, 16 Ariz. 566, 147 P. 750, L.R.A.1915E, 604; Na-
tional Memorial Park v. C. I. R., C.C.A.4, 145 F.2d 1008,
1015.
A license is an authority to enter on land which is gen-
erally granted by parol and may be revoked by the licensor
at pleasure and is not assignable, being a personal privi-
lege, while an easement confers an interest in the land and
may not be terminated at the pleasure of the servient
owner. Louisville Chair & Furniture Co. v. Otter, 219 Ky.
757, 294 S.W. 483, 485.
The distinction between an easement and a license is
often so metaphysical, subtle, and shadowy as to elude
analysis. But there are certain fundamental principles
underlying most cases which enable courts to distinguish
an easement from a license when construed in the light of
surrounding circumstances. East Jersey Iron Co. v.
Wright, 32 N.J.Eq. 254; Nunnelly v. Iron Co., 94 Tenn:
397, 29 S.W. 361, 28 L.R.A. 421.
A "tenancy" implies some interest in the land leased,
while a "license" conveys only a temporary privilege in
the use of property usually revocable at the will of the
licensor. Klein v. City of Portland, 106 Or. 686, 213 P.
147, 150; Vicker v. Byrne, 155 Wis. 281, 143 N.W. 186, 188.
But see Mitchell v. Probst, 52 Okl. 10, 152 P. 597, 598.
An "invitation" is inferred where there is a common
interest or mutual advantage, or where an owner or occu-
pant of premises, by acts or conduct, leads another to
believe the premises or something thereon were intended
to be used by such other person, that such use is not only
acquiesced in by the owner or occupant, but is in accord-
ance with the intention or design for which the way, place,
or thing was adapted or prepared or allowed to be used;
while a "license" is implied where the object is the mere
pleasure, convenience, or benefit of the person enjoying the
privilege. Kruntorad v. Chicago, R. I. & P. Ry. Co., 111
Neb. 753, 197 N.W. 611, 612. Polluck v. Minneapolis & St.
L. R. Co., 44 S.D. 249, 183 N.W. 859, 862.
Registrar's License
See Registrar's License.
Rod License
See Rod License.
Special License
In English law. One granted by the archbishop
of Canterbury to authorize a marriage at any time
or place whatever. 2 Steph. Comm. 247, 255.
Streets and Ways
A permit to use street is a mere license revoc-
able at pleasure. City of Boston v. A. W. Perry,
Inc., 304 Mass. 18, 22 N.E.2d 627, 630; Lanham v.
Forney, 196 Wash. 62, 81 P.2d 777, 779.
City having right to regulate use of its streets by motor
vehicles for hire may issue licenses; license being permis-
sion. Ex parte Schutte, 118 Tex.Cr.R. 182, 42 S.W.2d 252,
255. Permissive use and license as synonymous, Aldine
Realty Co. of Pittsburgh v. Manor Real Estate & Trust Co.,
297 Pa. 583, 148 A. 56, 58. Street railway location or
elevated railway location as license. Boston Elevated Ry.
Co. v. Commonwealth, 310 Mass. 528, 39 N.E.2d 87, 103, 106,
108.
The privilege of using the streets and highways by the
operation thereon of motor carriers for hire can be
acquired only by permission or license from the state
or its political subdivisions. Blashfield, Cyc. of Auto-
mobile Law and Prac., Perm. Ed., 331.
Trade, Business or Calling
Authority or permission to do or carry on some
trade or business which would otherwise be un-
lawful. Solberg v. Davenport, 211 Iowa 612, 232.
N.W. 477, 480; S. S. Kresge Co. v. City of Blue•
field, 117 W.Va. 17, 183 S.E. 601, 602; Standard
Oil Co. (Indiana) v. State Board of Equaliza-
tion, 110 Mont. 5, 99 P.2d 229, 234. Permission
conferred by proper authority, to pursue certain
trade, profession, or calling. Staniforth V. State,
34 Ohio App. 239, 170 N.E. 578, 580. Privilege to
carry on a business. Johnson v. Liquor Control
Commission, 266 Mich, 682, 254 N.W. 557; Lloyds
of Texas v. Bobbitt, Tex.Civ.App., 40 S.W.2d 897,
901.
A license confers upon licensee neither contractual nor
vested rights. Rosenblatt v. California State Board of
Pharmacy, 69 Cal.App.2d 69, 158 P.2d 199, 203. Asbury
Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 452.
Nor does it create a property right. State ex rel. Zugravu
v. O'Brien, 130 Ohio St. 23, 196 N.E. 664.
Trade-Mark
Permission to use a trade-mark in an area where
the purported owner's goods have not become
known and identified by his use of mark is a
naked "license". E. F. Prichard Co. V. Consumers
Brewing Co., C.C.A.Ky., 136 F.2d 512, 521.
LICENSE CASES. The name given to the group
of cases including Peirce v. New Hampshire, 5
How. 504, 12 L.Ed. 256, decided by the United
States supreme court in 1847, to the effect that
state laws requiring a license or the payment of a
tax for the privilege of selling intoxicating liquors
were not in conflict with the constitutional provi-
sion giving to congress the power to regulate in-
terstate commerce, even as applied to liquors im-
ported from another state and remaining in the
original and unbroken packages. This decision
was overruled in Leisy v. Hardin, 10 Sup.Ct. 681,
135 U.S. 100, 34 L.Ed. 128, which in turn was count-
eracted by the act of congress of August 8, 1890,
commonly called the "Wilson law."
LICENSE FEE or TAX. Charge imposed by sov-
ereign for a privilege. Pennsylvania Liquor Con-
trol Board v. Publicker Commercial Alcohol Co.,
347 Pa. 555, 32 A.2d 914, 917. Stone v. General
Contract Purchase Corporation, 193 Miss. 301,
7 So.2d 806, 808, 140 A.L.R. 1029.
Charge or fee imposed primarily for the discouragement
of danger°. is employments, the protection of the safety of
the public, or the regulation of relative rights, privileges,
or duties as between individuals, Conard v. State, Del.
Super., 2 Terry 107, 16 A.2d 121, 125. Price paid to gov-
ernmental or municipal authority for a license to engage in
and pursue a particular calling or occupation. See Home
Ins. Co. v. Augusta, 50 Ga. 537; Levi v. Louisville, 97 Ky.
394, 30 S.W. 973, 28 L.R.A. 480. Tax on privilege of exer-
cising corporate franchise. City Investments v. Johnson,
6 Ca1.2d 150, 56 P.2d 939, 940. The term "license tax"
includes both charge imposed under police power for privi-
lege of obtaining license to conduct particular business,
and tax imposed upon business for sole purpose of raising
revenue; "license tax" being defined as sum exacted for
privilege of carrying on particular occupation. City of
Waycross v. Bell, 169 Ga. 57, 149 S.E. 641, 642. Where a
fee is exacted and something is required or permitted in
addition to the payment of the sum, either to be done by
the licensee, or by some regulation or restriction imposed
on him, then the fee is a "license fee". Conard v. State,
Del.Super., 2 Terry 107, 16 A.2d 121, 125.
LICENSE IN AMORTIZATION. A license au-
thorizing a conveyance of property which, without
it, would be invalid under the statutes of mort-
main.
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LICENSE TAX
LICENSE TAX. A license, strictly so-called, im-
posed in exercise of the ordinary police power of
the state, or a tax, laid in the exercise of the
power of taxation. State v. Commercial Loan Co.,
251 Ala. 672, 38 So.2d 571, 573.
See License Fee or Tax, supra.
LICENSED VICTUALLER. A term applied, in
England, to all persons selling any kind of in-
toxicating liquor under a license from the justices
of the peace. Wharton.
LICENSEE. A person licensed; one who holds
a license. Texas-Louisiana Power Co. v. Webster,
127 Tex. 126, 91 S.W.2d 302. A social guest. Biggs
v. Bear, 320 Ill.App. 597, 51 N.E.2d 799, 800; Kal-
inowski v. Young Women's Christian Ass'n, 17
Wash.2d 380, 135 P.2d 852, 857; Gregory v. Loder,
116 N.J.L. 451, 185 A. 360; an invitee stepping be-
yond limits of his invitation, Wilson v. Goodrich,
252 N.W. 142, 218 Iowa 462; McGenty v. John A.
Stephenson & Co., 218 Minn. 311, 15 N.W.2d 874,
875; person entering or using premises by per-
mission or by operation of law but without ex-
press or implied invitation. Boneau v. Swift &
Co., Mo.App., 66 S.W.2d 172, 175; Texas-Louisiana
Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d
302; Texas Co. v. Haggard, 23 Tenn. App. 475,
134 S.W.2d 880, 884, 885; person entering premises
by permission only, without invitation, enticement,
or allurement. Brody v. Cudahy Packing Co., 233
Mo.App. 973, 127 S.W.2d 7, 10. Person entering
premises either without invitation, or for purpose
not connected with business conducted on premis-
es, but with permission or toleration. Kalinowski
v. Young Women's Christian Ass'n, 17 Wash.2d
380, 135 P.2d 852, 857; Person granted express per-
mission to use premises of another, Dye v. Mont-
gomery Ward & Co., 175 Okl. 567, 54 P.2d 182,
183; person on another's premises only through
acquiescence or sufferance. Karns v. Trostel, 44
Ohio App. 498, 186 N.E. 405; Foley v. H. F. Farn-
ham Co., 135 Me. 29, 188 A. 708, 712; person on
another's premises solely in pursuit or further.
ance of own business, pleasure, or convenience.
Sulhoff v. Everett, 235 Iowa 396, 16 N.W.2d 737,
739; Connole v. Floyd Plant Food Co., Mo.App.,
96 S.W.2d 655, 657, 658; person on another's
premises by invitation, Atlantic Greyhound Cor-
poration v. Newton, C.C.A.N.C., 131 F.2d 845, 847;
person permitted on another's premises merely for
his own interest, or for that of a third person.
Keesecker v. G. M. McKelvey Co., 141 Ohio St.
162, 47 N.E.2d 211, 214; Fraters v. Keeling, 20 Cal.
App.2d 490, 67 P.2d 118; person privileged to enter
or remain on land by virtue of possessor's con-
sent, whether given by invitation or permission.
Smith v. Southwest Missouri R. Co., 333 Mo. 314,
62 S.W.2d 761; Manley v. Haus, 113 Vt. 217, 32
A.2d 668, 671; Hashim v. Chimiklis, 91 N.H. 456, 21
A.2d 166, 167; person using premises through
owner's sufferance only, without any enticement,
allurement, or inducement and for his own per-
sonal benefit, convenience, and pleasure. Boneau
v. Swift & Co., Mo.App., 66 S.W.2d 172, 175; per-
son who has mere permission to use land, domin-
ion over it remaining in owner, and no interest in
nor exclusive possession of it being given to oc-
cupant. Seabloom v. Krier, 219 Minn. 362, 18 N.
W.2d 88, 91; person who is neither passenger,
servant, nor trespasser and does not stand in any
contractual relation with owner, and is permitted
to come upon premises for his own interest, con-
venience, and gratification, Hyde v. Atlanta & W.
P. R. Co., 47 Ga.App. 139, 169 S.E. 854, 855; Buss
v. Wachsmith, 190 Wash. 673, 70 P.2d 417, 421;
Platt v. Bender, La.App., 178 So. 678, 682; person
whose presence upon the premises of another is
tolerated, Malolepszy v. Central Market, 143 Neb.
356, 9 N.W.2d 474, 477. Third person on vehicle
on the invitation, or with the knowledge and ac-
quiescence, of employee. Wurtzburger v. Oglesby,
222 Ala. 151, 131 So. 9, 10; Brown v. Standard Cask-
et Mfg. Co., 234 Ala. 512, 175 So. 358, 361; volunteer
or person on premises with permission of owner
from motives of curiosity or private convenience.
Armour & Co. v. Rose, 183 Ark. 413, 36 S.W.2d 70,
74.
Exclusive Licensee
See Exclusive Licensee.
Patent Law
One who has had transferred to him, either in
writing or orally, a less or different interest than
either the interest in the whole patent, or an un-
divided part of such whole interest, or an exclusive
sectional interest. Potter v. Holland, 4 Blatchf.
211, Fed.Cas.No.11,329.
LICENSEE BY INVITATION. A person who goes
upon the lands of another with express or im-
plied invitation to transact business with the own-
er or occupant or do some act to his advantage or
to the mutual advantage of both the licensee and
the owner or occupant. Samuel E. Pentecost
Const. Co. v. O'Donnell, 112 Ind.App. 47, 39 N.E.2d
812.
A licensee by express invitation is one who is directly
invited by the owner of the land to enter upon it. Mann
v. Des Moines Ry. Co., 232 Iowa 1049, 7 N.W.2d 45, 51.
A licensee by implied invitation is one who has been
invited to enter upon the land either by the owner or
occupier of the same by some affirmative act done by such
owner or occupier or by appearances which justify persons
generally in believing that such owner or occupier had
given his consent to the public generally to enter upon or
to cross over his premises. Mann v. Des Moines Ry. Co.,
232 Iowa 1049, 7 N.W.2d 45, 51.
LICENSEE BY PERMISSION. One who, for his
own convenience, curiosity, or entertainment, goes
upon the premises of another by the owner's or
occupant's permission or sufferance. Samuel E.
Pentecost Const. Co. v. O'Donnell, 112 Ind.App. 47,
39 N.E.2d 812, 817.
LICENSING ACTS. This expression is applied by
Hallam (Const. Hist. c. 13) to acts of parliament
for the restraint of printing, except by license.
It may also be applied to any act of parliament passed
for the purpose of requiring a license for doing any act
whatever. But, generally, when we speak of the licensing
acts, we mean the acts regulating the sale of intoxicating
liquors. Mozley & Whiteley.
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LIE
LICENSOR. The person who gives or grants a
license.
LICENTIA. Lat. License; leave; permission.
LICENTIA CONCORDANDI. In old practice and
conveyancing. License or leave to agree; one
of the proceedings on levying a fine of lands. 2 Bl,
Comm. 350.
LICENTIA LOQUENDI. In old practice. Leave
to speak, (i. e., with the plaintiff;) an imparlance;
or rather leave to imparl. 3 Bl. Comm. 299.
LICENTIA SURGENDI. In old English practice.
License to arise; permission given by the court to
a tenant in a real action, who had cast an essoin
de malo lecti, to arise out of his bed. Also, the
writ thereupon.
If the demandant can show that the tenant was seen
abroad before leave of court, and before being viewed by
the knights appointed by the court for that purpose, such
tenant shall be taken to be deceitfully essoined, and to
have made default. Bract. lib. 5; Fleta, lib. 6, c. 10.
LICENTIA TRANSFRETANDI. A writ or war-
rant directed to the keeper of the port of Dover,
or other seaport, commanding him to let such per-
sons pass over sea as have obtained the royal li-
cense thereunto. Reg. Orig. 193.
LICENTIATE. One who has license to practice
any art or faculty.
LICENTIOUSNESS. The indulgence of the ar-
bitrary will of the individual, without regard to
ethics or law, or respect for the rights of others.
In this it differs from "liberty;" for the latter term may
properly be used only of the exercise of the will in its
moral freedom, with justice to all men and obedience to
the laws, Welch v. Durand, 36 Conn. 184, 4 Am. Rep. 55;
State v. Brigman, 94 N.C. 889; liberty is restrained by
natural or positive law, and consists in doing whatever we
please not inconsistent with the rights of others, whereas
licentiousness does not respect those rights. Wolff, Inst.
§ 84.
Also, lewdness or lasciviousness. Holton v.
State, 28 Fla. 303, 9 So. 716; Purvis v. State, 117
Neb. 377, 220 N.W. 599, 600.
LICERE. Lat. To be lawful; to be allowed or
permitted by law. Calvin.
LICERE, LICERI. Lat. In Roman law. To offer
a price for a thing; to bid for it.
LICET. Lat. From the verb "licere," (q. v.). It
is allowed; it is permissible; it is lawful; not for-
bidden by law.
Although; notwithstanding. Calvin. Import-
ing, in this sense, a direct affirmation. Plowd.
127.
LICET DISPOSITIO DE INTERESSE FUTURO
SIT INUTILIS, TAMEN POTEST FIERI DE-
CLARATIO PRIECEDENS QUA& SORTIATUR
EFFECTUM, INTERVENIENTE NOVO ACTU.
Although the grant of a future interest be inop-
erative, yet a declaration precedent may be made,
which may take effect provided a new act inter-
vene. Bac. Max. pp. 60, 61, reg. 14; Broom, Max.
498.
LICET SZEPIUS REQUISITUS. (Although often
requested.)
In pleading. A phrase used in the old Latin forms of
declarations, and literally translated in the modern prece-
dents. Yel. 66; 2 Chit.Pl. 90; 1 Chit.Pl. 331. The clause
in a declaration which contains the general averment of a
request by the plaintiff of the defendant to pay the sums
claimed is still called ,the "licet scepius requisites."
LICITA BENE MISCENTUR, FORMULA NISI
JURIS OBSTET. Lawful acts [done by several
authorities] are well mingled, [i. e., become united
or consolidated into one good act,] unless some
form of law forbid. Bac. Max. p. 94, reg. 24
(E. g., Two having a right to convey, each a
moiety, may unite and convey the whole.)
LICITACION. In Spanish law. The offering for
sale at public auction of an estate or property
held by co-heirs or joint proprietors, which cannot
be divided up without detriment to the whole.
See, also, Licitation.
LICITARE. Lat. In Roman law. To offer a
price at a sale; to bid; to bid often; to make sev-
eral bids, one above another. Calvin.
LICITATION. In the civil law. An offering for
sale to the highest bidder, or to him who will give
most for a thing.
An act by which co-heirs or other co-proprietors of a
thing in common and undivided between them put it to bid
between them, to be adjudged and to belong to the highest
and last bidder, upon condition that he pay to each of his
co-proprietors a part in the price equal to the undivided
part which each of the said co-proprietors had in the estate
licited, before the adjudication. Poth.Cont.Sale, nn. 516,
638. See Barbarich v. Meyer, 154 La. 325, 97 So. 459, 460.
LICITATOR. In Roman law. A bidder at a sale.
LICKING OF THUMBS. An ancient formality by
which bargains were completed.
LIDFORD LAW. A sort of lynch law, whereby
a person was first punished and then tried. Whar-
ton.
LIE, n. An untruth deliberately told; the utter-
ing or acting of that which is false for the pur-
pose of deceiving; intentional mistatement. Broth-
ers v. Brothers, 208 Ala. 258, 94 So. 175, 177.
LIE, v. To subsist; to exist; to be sustainable;
to be proper or available.
Thus the phrase "an action will not lie" means that an
action cannot be sustained, or that there is no ground upon
which to found the action.
LIE DETECTOR. A machine which records by
a needle on a graph varying emotional disturb-
ances when answering questions truly or falsely,
as indicated by fluctuations in blood pressure, res-
piration or perspiration. State v. .Cole, 354 Mo.
181, 188 S.W.2d 43, 51. A pathometer. People v.
Forte, 4 N.Y.S.2d 913, 919, 167 Misc, 868.
LIE IN FRANCHISE. Property is said to "lie in
franchise" when it is of such a nature that the
persons entitled thereto may seize it without the
aid of a court; e. g., wrecks, waifs, estrays.
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LIE IN GRANT. Incorporeal hereditaments are
said to "lie in grant;" that is, they pass by force
of the grant (deed or charter) without livery.
LIE IN LIVERY. A term applied to corporeal
hereditaments, freeholds, etc., signifying that they
pass by livery, not by the mere force of the grant.
LIE IN WAIT. See Lying in Wait.
LIE TO. To adjoin. A cottage must have had
four acres of land laid to it. See 2 Show. 279.
LIEFTENANT. An old form of "lieutenant," and
still retained as the vulgar pronunciation of the
word.
LIEGE.
In feudal law. Bound by a feudal tenure; bound
in allegiance to the lord paramount, who owned
no superior.
The term was applied to the lord, or liege lord, to whom
allegiance was due, since he was bound to protection and
a just government, and also to the feudatory, liegeman, or
subject bound to allegiance, for he was bound to tribute
and due subjection. 34 & 35 Hen. VIII. So lieges are the
king's subjects. Stat. 8 Hen. VI. c. 10; 14 Hen. VIII. c. 2.
So in Scotland. Bell, Dict.
In old records. Full; absolute; perfect; pure.
lAege widowhood was pure widowhood. Cowell.
Ligius was also used; e. g. ligia potestas, full and
free power of disposal. Paroch. Antiq. 280.
LIEGE HOMAGE. Homage which, when per-
formed by one sovereign prince to another, in-
cluded fealty and services, as opposed to simple
homage, which was a mere acknowledgment of
tenure. (1 Bl. Comm. 367; 2 Steph, Comm. 400.)
Mozley & Whiteley.
LIEGE LORD. A sovereign; a superior lord.
LIEGE POUSTIE. In Scotch law. That state of
health which gives a person full power, to dispose
of, mortis causal or' otherwise, his heritable prop-
erty. Bell. A deed executed at the time of such
a state of health, as opposed to a death-bed con-
veyance. The term seems to be derived from the
Latin "legitima potestas."
LIEGEMAN. He that oweth allegiance. Cowell.
LIEGER, or LEGER. A resident ambassador.
LIEGES, or LIEGE PEOPLE. Subjects.
LIEN. A charge or security or incumbrance upon
property. Theatre Realty Co. v. Aronberg-Fried
Co., C.C.A.Mo., 85 F.2d 383, 388, McCarty v. Rob-
inson, 222 Ala. 287, 131 So. 895, 896; Springer v.
J. R. Clark Co., C.C.A.Minn., 138 F.2d 722, 726.
A claim or charge on property for payment of some
debt, obligation or duty, Shipley v. Metropolitan Life Ins.
Co., 25 Tenn.App. 452, 158 S.W.2d 739, 741; Williams v.
Greer, Tex.Civ.App., 122 S.W.2d 247, 248; Ross v. Franko,
139 Ohio St. 395, 40 N.E.2d 664, 665; Gray v. Horne, 48
Cal.App.2d 372, 119 P.2d 779, 780; Willard v. Stauffer, 91
Ind. App. 119, 170 N.E. 332, 335; hold or claim which one
person has upon the property of another for some debt or
charge, Sissman v. Chicago Title & Trust Co., 303 Ill.App.
620, 25 N.E.2d 599, 600; Marquette Nat. Bank of Minneapo-
lis v. Mullin, 205 Minn. 562, 287 N.W. 233, 238; Bent v.
H. W. Weaver, Inc., 106 W.Va. 164, 145 S.E. 594, 595; obli-
gation, tie, duty or claim annexed to or attaching upon
property by the common law, equity, contract or statute,
without satisfying which such property cannot be lawfully
demanded by another, Landis Mach. Co. v. Omaha Mer-
chants Transfer Co., 142 Neb. 389, 9 N.W.2d 198, 203;
pledging of the assets available to pay the corporate lia-
bilities, Andrew v. Bevington Sa y . Bank, 206 Iowa, 869, 221
N.W. 668. Preferred or privileged claims given by statute
or by admiralty law. American Legion Post No. 279 v.
Barrett, 371 Ill. 78, 20 N.E.2d 45, 50; Marshall v. People of
State of New York, 254 U.S. 380, 41 S.Ct. 143, 145, 65 L. Ed.
315; qualified right of property which a creditor has in or
over specific property of his debtor, as security for the
debt or charge or for performance of some act, 6 East
25, n; right to detain property, O'Brien v. Buxton, 156 A.
17, 18, 9 N.J.Misc.R. 876; right or claim against some
interest in property created by law as an incident of con-
tract, Van Camp v. Van Camp, 291 Mich. 688, 289 N.W. 297,
300; right to enforce charge upon property of another for
payment or satisfaction of debt or claim, Vaughan v. John
Hancock Mut. Life Ins. Co., Tex.Civ.App., 61 S.W.24 189,
190; Day v. Ostergard, 146 Pa.Super. 27, 21 A.2d 586, 588.
Right to retain property for payment of debt or demand,
Samuels v. Public Nat. Bank & Trust Co. of New York, 251
N.Y.S. 671, 674, 140 Misc. 744; Bell v. Dennis, 43 N.M. 350,
93 P.2d 1003, 1006; Huie v. Soo Hoo, 132 Cal.App.Supp.,
787, 22 P.2d 808. Security for a debt, duty or other obliga-
tion, Hurley v. Boston R. Holding Co., 315 Mass. 591, 54
N.E.2d 183, 193; tie that binds property to a debt or claim
for its satisfaction. United States v. 1364.76875 Wine Gal-
lons, More or Less, of Spirituous Liquors, D.C.Mo., 60
F.Supp. 389, 392; Baranofsky v. Weiss, 120 Pa.Super. 126,
182 A. 47, 48.
A "claim" is generally a liability in personam but capa-
ble of embracing both a personal liability and a lien on
property, while a lien is a liability in rem. Fairbanks,
Morse & Co. v. Cape Charles, 144 Va. 56, 131 S.E. 437, 439.
A lien is a charge imposed upon specific property,
whereas an assignment, unless in some way qualified, is
properly the transfer of one's whole Interest in a!, estate,
or chattel, or other thing. Guaranteed State Bank of Dur-
ant v. D' Yarmett, 67 Okl. 164, 169 P. 639, 641; Millsap v.
Sparks, 21 Ariz. 317, 188 P. 135, 136.
A "lien" is not a property in or right to the thing itself,
but constitutes a charge or security thereon. Koenig v.
Leppert-Roos Fur Co., Mo.App., 260 S.W. 756, 758; Stea-
gall-Cheairs Fertilizer Co. v. Bethume Mule Co., 181 Ala.
250, 61 So. 274, 275; Powers v. Fidelity & Deposit Co. of
Maryland, 180 S.C. 501, 186 S.E. 523, 530.
An "estate" in land is the right to the possession and
enjoyment of it, while a "lien" on land is the right to
have it sold or otherwise applied in satisfaction of a debt.
State Bank of Decatur v. Sanders, 114 Ark. 440, 170 S.W.
86, 89.
Liens are "property rights". In re Pennsylvania Central
Brewing Co., C.C.A.Pa., 114 F.2d 1010, 1013; Smith v. Rus-
sell, 223 Iowa 123, 272 N.W. 121, 125.
The word "lien" is a generic term and, standing alone,
includes liens acquired by contract or by operation of law.
Egyptian Supply Co. v. Boyd, C.C.A.Ky., 117 F.2d 608, 612.
Some transactions or agreements held to constitute a
"lien" are conditional sales contract, General Motors
Acceptance Corporation v. Hamlin, 25 Ala. App. 522, 149 So.
864, 865; interest of a purchaser on execution sale during
redemption period, Local Realty Co. v. Lindquist, 92 Utah.
297, 85 P.2d 770, 773; levy made on tax assessment, City of
Salem v. Marion County, 171 Or. 254, 137 P.2d 977. Mort-
gage or deed of trust, Tracy v. Costa, 132 N.J.Eq. 455, 28
A.2d 523, 524; State v. Sheridan County, 72 N.D. 254, 6
N.W.2d 51, 54; Fickling v. Jackman, 203 Cal. 657, 265 P.
810, 812; Klika v. Albert Wemzlick Real Estate Co., Mo.
App., 150 S.W.2d 18, 24; street improvement assessment,
City of Orangeburg v. Southern Ry. Co., D.C.S.C., 45
F.Supp. 734, 738; taxes, Harrell v. Burch, 195 Ga. 96, 23
S.E.2d 434, 436; In re Empire Granite Co., D,C.Ga., 42
F.Supp. 450, 455, 457; Cowen v. Wassman, 64 Ohio App.
84, 28 N.E.2d 201, 204; title retention contract. Franklin
Savings & Loan Corporation v. Snapp, 179 Tenn. 151, 163
S.W.2d 332, 333; unrecorded trust deed. Wasco Creamery
& Construction Co. v. Coffee, 117 Cal.App. 298, 3 P:2d 588,
589.
Lien by operation of law. Where the law it-
self, without the stipulation of the parties, raises.
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a lien, as an implication or legal consequence from
the relation of the parties or the circumstances
of their dealings. Liens of this species may arise
either under the rules of common law or of equity
or under a statute. In the first case they are
called "common-law liens;" in the second, "equi-
table liens;" in the third, "statutory liens."
Roman or Civil Law
The peculiar securities which, in the common
and maritime law and equity, are termed "liens,"
are embraced under the head of "mortgage and
privilege."
Scotch Law
The doctrine of lien is known by the name of
"retention," and that of set-off by the name of
"compensation"; though certain rights of reten-
tion are also called liens. Ersk. Prin. 374.
As to "Attorney's Lien," "Charging Lien," "Com-
mon Law Lien," "Concurrent Liens," "Consum-
mate Lien," "Conventional Lien," "Equitable
Liens," "Execution Lien," "First Lien," "General
Lien," "Inchoate Lien," "Judgment Lien," "Mari-
time Lien," "Mechanic's Lien," "Municipal Lien,"
"Particular Lien," "Possessory Lien," "Prior Lien,"
"Second Lien," "Secret Lien," "Special Lien" and
"Vendor's Lien," see those titles.
LIEN ACCOUNT. Such statement of claim as
fairly apprises property owner and public of na-
ture and amount of demand asserted as lien.
Hanenkamp v. Hagedorn, Mo.App., 110 S.W.2d 826,
829.
LIEN CREDITOR. One whose debt or claim is
secured by a lien on particular property, as dis-
tinguished from a "general" creditor, who has no
such security.
LIEN OF A COVENANT. The commencement
of a covenant stating the names of the covenant-
ors and covenantees, and the character of the cov-
enant, whether joint or several. Wharton.
LIEN OF FACTOR AT COMMON LAW. Lien
not created through statutory enactment, but lien
of ordinary factor as known to common law. Irv-
ing Trust Co. v. B. Lindner & Bro., Inc., 264 N.Y.
165, 190 N.E. 332, 336.
LIENEE. One whose property is subject to a
lien. Webster.
It was held that "lienee" as used in statute providing
that failure to have required notice of suit affecting realty
entered in lis pendens records shall not affect rights of a
bona fide purchaser-mortgagee or other lienee in absence
of actual notice means the person having or owning a lien;
one who has a right of lien on property of another. Lee v.
Macon County Bank, 233 Ala. 522, 172 So. 662, 670.
LIENOR. The person having or owning a lien;
one who has a right of lien upon property of an-
other.
LIEU. Fr. Place; room. It is only used with
"in;" in lieu, instead of. Enc. Lond.
LIEU CONUS. L. Fr. In old pleading. A known
place; a place well known and generally taken
notice of by those who dwell about it, as a castle,
a manor, etc. Whishaw; 1 Ld. Raym. 259.
LIEU LANDS. A term used to indicate public
lands within the indemnity limits granted in lieu
of those lost within place limits. See Weyerhaeus-
er v. Hoyt, 31 S.Ct. 300, 219 U.S. 380, 55 L.Ed. 258.
LIEU TAX. A lieu tax means instead of or a sub-
stitute for, and it is not an additional tax. Lebeck
v. State, 62 Ariz. 171, 156 P.2d 720, 721.
LIEUTENANCY, COMMISSION OF. See Com-
mission of Array.
LIEUTENANT. L A deputy; substitute; an of-
ficer who supplies the place of another; one act-
ing by vicarious authority. Etymologically, one
who holds the post or office of another, in the
place and stead of the latter.
2. The word is used in composition as part of
the title of several civil and military officers, who
are subordinate to others, and especially where the
duties and powers of the higher officer may, in
certain contingencies, devolve upon the lower; as
lieutenant governor, lieutenant colonel, etc. See
infra.
3. In the army, a lieutenant is a commissioned
officer, ranking next below a captain. In the Unit-
ed States navy, he is an officer whose rank is
intermediate between that of an ensign and that
of a lieutenant commander. Itl the British navy,
his rank is next below that of a commander.
LIEUTENANT COLONEL. An officer of the
army whose rank is above that of a major and be-
low that of a colonel.
LIEUTENANT COMMANDER. A commissioned
officer of the United States navy, whose rank is
above that of lieutenant and below that of com-
mander.
LIEUTENANT GENERAL. An officer in the
army, whose rank is above that of major general
and below that of "general of the army." In the
United States, this rank is not permanent, being
usually created for special persons or in times of
war.
LIEUTENANT GOVERNOR. In English law. A
deputy-governor, acting as the chief civil officer
of one of several colonies under a governor gen-
eral. Webster. In American law. An officer of
a state, sometimes charged with special duties,
but chiefly important as the deputy or substitute
of the governor, acting in the place of the gov-
ernor upon the latter's death, resignation, or dis-
ability.
LIFE. That state of animals and plants or of an
organized being, in which its natural functions
and motions are performed, or in which its organs
are capable of performing their functions. Web-
ster. The sum of the forces by which death is
resisted. Bichat.
"Life" begins in contemplation of law as soon as an
infant is able to stir in the mother's womb. State v. Forte,
222 N. C. 537, 23 S.E.2d 842, 843.
Black's Law Dictionary Revised 4th Ed.-68
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"Life" protected by the Federal Constitution includes all
personal rights and their enjoyment embracing the use and
enjoyment of the faculties, acquiring useful knowledge, the
right to marry, establish a home, and bring up children,
freedom of worship, conscience, contract, occupation,
speech, assembly and press. Rosenblum v. Rosenblum, 42
N.Y.S.2d 626, 630, 181 Misc. 78.
Natural life. See Natural Life.
LIFE ANNUITY. An engagement to pay an in-
come yearly during the life of some person; also
the sum thus promised.
An annuity contract which contemplated monthly pay-
ments until death of annuitant or surrender of policy by
him was a life annuity. Bodine v. Commissioner of Inter-
nal Revenue, C.C.A.3, 103 F.2d 982, 985. An annuity,
depending on the continuance of an assigned life or lives,
is sometimes called a life annuity. Bodine v. Commis-
sioner of Internal Revenue, C.C.A.3, 103 F.2d 982, 985.
LIFE ESTATE. An estate whose duration is lim-
ited to the life of the party holding it, or of some
other person. Williams v. Ratcliff, 42 Miss. 154;
Civ.Code Ga. 1895, § 3087 (Civ.Code 1910, § 3663).
Estates for life may be created by act of law or by act
of the parties: in the former case they are called legal, in
the latter conventional. The legal life estates are estates-
tail after possibility of issue extinct, estates by dower,
estates by curtesy, jointures; Mitch.R.P. 118, 133; Dejar-
natte v. Allen, 5 (drat., Va., 499; Irwin v. Covode, 24 Pa.
162; 3 E.L. & Eq.R. 345; Gourley v. Woodbury, 51 Vt. 37;
Brooks v. Brooks, 12 S.C. 422; Rountree v. Talbot, 89 Ill.
246.
A freehold estate, not of inheritance, but which is held
by the tenant for his own life or the life or lives of one
or more other persons, or for an indefinite period, which
may endure for the life or lives of persons in being, and
not beyond the period of a life. 1 Washb.Real Prop. 88;
Brandenburg v. Petroleum Exploration, 218 Ky. 557, 291
S.W. 757, 759; Co.Litt. 42a; Bract. lib. 4, c. 28, § 207.
Measure of duration is the tenant's own life, it is called
simply an estate "for life;" when the measure of dura-
tion is the life of another person, it is called an estate "per
(or pur) autre vie." 2 Bl.Comm. 120; Co.Litt. 41b; 4
Kent 23, 24.
A devise of a life estate to terminate upon devisee's
remarriage constitutes a devise of a "life estate", Lydick
v. Tate, 380 Ill. 616, 44 N.E.2d 583, 589. A devise to a
devisee and her children in fee simple passes a "life
estate" in named devisee with remainder in fee to the chil-
dren, Melly v. Melly, 147 Pa.Supef. 140, 24 A.2d 25, 27, 28.
A gift, though not expressly for life, but with a limita-
tion over of any part of the estate remaining at the death
of the immediate devisee, creates a "life estate." Shelton
v. Shelton, 348 Mo. 820, 155 S.W.2d 187, 188.
LIFE IN BEING. A phrase used in the common-
law and statutory rules against perpetuities, mean-
ing the remaining duration of the life of a person
who is in existence at the time when the deed or
will takes effect. See McArthur v. Scott, 5 S.Ct.
652, 113 U.S. 340, 28 L.Ed. 1015.
LIFE INSURANCE, See Insurance.
LIFE INSURANCE COMPANY. Any corporation
writing life insurance, whether with or without
capital stock, and on whatever plan (Rev.St. 1925,
art. 4716). National Mut. Ben. Ass'n v. Aaron,
Tex.Civ.App., 45 S.W.2d 371, 373.
LIFE INTEREST. A claim or interest, not amount-
ing to ownership, and limited by a term of life,
either that of the person in whom the right is
vested or that of another.
LIFE-LAND, or LIFE-HOLD. Land held on a
lease for lives.
LIFE OF A WRIT. The period during which a
writ (execution, etc.) remains effective and can
lawfully be served or levied, terminating with the
day on which, by law or by its own terms, it is to
be returned into court.
LIFE OF BONDS. Within statute respecting their
maturity dates, commenced upon their issuance
and sale. Shamblin v. Board of Sup'rs of Prentiss
County, 192 Miss. 267, 5 So.2d 675, 676.
LIFE OR LIMB. The phrase "life or limb" with-
in constitutional provision that no person shall
be subject for the same offense to be twice put
in jeopardy of life or limb is not construed strictly
but applies to any criminal penalty. U.S.C.A.
Const.Amend. 5. Clawans v. Rives, 104 F.2d 240,
242, 70 App.D.C. 107, 122 A.L.R. 1436.
LIFE PEERAGE. Letters patent, conferring the
dignity of baron for life only, do not enable the
grantee to sit and vote in the house of lords, not
even with the usual writ of summons to the house.
Wharton.
LIFE POLICY. A policy of life insurance; a pol-
icy of insurance upon the life Of an individual.
Contract to pay money to beneficiaries on death ofinsured. Cohen v. Metropolitan Life Ins. Co., 112 Pa.
Super. 314, 171 A. 106, 109. Contract to pay a fixed sum at
death, Kahn v. Continental Cas. Co., 325 Ill.App. 1, 59
N.E.2d 524, 533. Without regard to value of his life to
beneficiary, First-Columbus Nat. Bank v. D. S. Pate Lum-
ber Co., 163 Miss. 691, 141 So. 767, 768. Contract which
insures a beneficiary or beneficiaries against financial hard-
ships which may otherwise result from death of the
insured. In re Sothern's Estate, 14 N.Y.S.2d 509, 511, 170
Misc. 805.
Insurance policy including a death benefit and a health
or accident disability benefit constituted a "life insurance
policy", it being immaterial that in some policy forms the
health and disability feature was more valuable absent a
showing that death provision was inserted to avoid the
higher tax. Universal Life Ins. Co. v. State, 155 Miss. 358,
121 So. 849, 850.
LIFE-RENT. In Scotch law. An estate for life;
a right to the use and enjoyment of an estate or
thing for one's life, but without destruction of its
substance. They are either legal, such as terce
and curtesy, (q. v.,) or conventional, i. e., created
by act of the parties. Conventional life-rents are
either simple, where the owner of an estate grants
a life-interest to another, or by reservation, where
the owner, in conveying away the fee, reserves a
life-estate to himself.
LIFE-RENTER. In Scotch law. A tenant for life
without waste. Bell.
LIFE TABLES. Statistical tables exhibiting the
probable proportion of persons who will live to
reach different ages. Cent. Dict.
Such tables are used for many purposes, such as the com-
putation of the present value of annuities, dower rights,
etc.; and for the computation of damages resulting from
injuries which destroy the earning capacity of a person, or
those resulting from the death of a person to those who
are dependent upon him.
LIFE TENANT. One who holds an estate in lands
for the period of his own life or that of another
certain person.
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LIFT. To raise; to take up.
To "lift" a promissory note is to discharge its obligation
by paying its amount or substituting 'another evidence of
debt. To "lift the bar" of the statute of limitations, or of
an estoppel, is to remove the obstruction which it inter-
poses, by some sufficient act or acknowledgment.
LIGA. In old European law. A league or con-
federation. Spelman.
LIGAN, LAGAN. Goods cast into the sea tied to
a buoy, so that they may be found again by the
owners, are so denominated.
When goods are cast into the sea in storms or ship-
wrecks, and remain there, without coming to land, they
are distinguished by the barbarous names of "jetsam,"
"flotsam," and "ligan." 5 Coke, 108; Harg.State Tr. 48;
1 Bl.Comm. 292.
LIGARE. To tie or bind. Bract. fol. 369b. To en-
ter into a league or treaty. Spelman.
LIGEA. In old English law. A liege-woman; a
female subject. Reg. Orig. 312b.
LIGEANCE. Allegiance; the faithful obedience
of a subject to his sovereign, of a citizen to his
government. Also, derivatively, the territory of a
state or sovereignty.
LIGEANTIA. Lat. Ligeance; allegiance.
LIGEANTIA EST QUASI LEGIS ESSENTIA;
EST VINCULUM FIDEI, Co. Litt. 129. Alleg-
iance is, as it were, the essence of law; it is the
chain of faith.
LIGEANTIA NATURALIS NULLIS CLAUSTRIS
COERCETUR, NULLIS METIS REFRIENATUR,
NULLIS FINIBUS PREMITUR. 7 Coke, 10. Na-
tural allegiance is restrained by no barriers, reined
by no bounds, compressed by no limits.
LIGEAS. In old records. A liege.
LIGHT. A window, or opening in the wall for the
admission of light.
Also a privilege or easement to have light admitted into
one's building by the openings made for that purpose,
without obstruction or obscuration by the walls of adjacent
or neighboring structures. Also an instrument through
which illumination is projected. Santos v. Dondero, 11
Cal.App.2d 720, 54 P.2d 764, 766.
LIGHT AND POWER. "Light and power" is a
generic term describing companies which furnish
electricity.  Union Electric Co. v. City of St.
Charles, 352 Mo. 1194, 181 S.W.2d 526, 528.
LIGHT-HOUSE. A structure, usually in the form
of a tower, containing signal-lights for the guid-
ance of vessels at night, at dangerous points of a
coast, shoals, etc. They are usually erected by
government, and subject to governmental regula-
tion.
As term applied to rugs may mean that rugs were made
by blind in charitable or quasi charitable institutions
called lighthouses, Lighthouse Rug Co. v. Federal Trade
Commission, C.C.A.7, 35 F.2d 163, 165.
LIGHT-HOUSE BOARD. A commission author-
ized by congress, consisting of two officers of the
navy, two officers of the corps of engineers of the
army, and two civilians, together with an officer
of the navy and an officer of engineers of the army
as secretaries, attached to the office of the secre-
tary of the treasury, at Washington, and charged
with superintending the construction and manage-
ment of light-houses, light-ships, and other mari-
time signals for protection of commerce. Abbott.
LIGHT-SHIP, LIGHT-VESSEL. A vessel serving
the purpose of a light-house, usually at a place
where the latter could not well be built.
LIGHTER. A small vessel used in loading and
unloading ships and steamers. The Mamie (D.C.)
5 Fed. 818; Reed v. Ingham, 26 Eng.Law & Eq.
167.
LIGHTERAGE. The business of transferring
merchandise to and from vessels by means of
lighters; also the compensation or price demand-
ed for such service. Western Transp. Co. v. Haw-
ley, 1 Daly (N.Y.) 327.
The loading, unloading and transfer of freight between a
car and a ship's side. Loading, unloading, or transporta-
tion by means of a lighter. Hoboken Manufacturers' R.
Co. v. United States, D.C.N.J., 47 F.Supp. 779, 782.
LIGHTERMAN. The master or owner of a light-
er. He is liable as a common carrier.
LIGHTS. 1. Windows; openings in the wall of a
house for the admission of light.
2. Signal-lamps on board a vessel or at particu-
lar points on the coast, required by the naviga-
tion laws to be displayed at night.
LIGIUS. A person bound to another by a solemn
tie or engagement. Now used to express the re-
lation of a subject to his sovereign.
See, also, Liege.
LIGNA ET LAPIDES SUB "ARMORUM" AP-
PELLATIONE NON CONTINENTUR. Sticks
and stones are not contained under the name of
"arms." Bract. fol. 144b.
LIGNAGIUM. A right of cutting fuel in woods;
also a tribute or payment due for the same. Ja-
cob.
LIGNAMINA. Timber fit for building. Du Fresne.
LIGULA. In old English law. A copy, exempli-
fication, or transcript of a court roll or deed.
Cowell.
LIKE. Equal in quantity, quality, or degree or
exactly corresponding. Bader v. Coale, 48 Cal.
App.2d 276, 119 P.2d 763, 765; Braren v. Horner,
Cust. & Pat. App., 47 F.2d 358, 365.
Also means having the same, or nearly the same, appear-
ance, qualities, or characteristics, Japan Import Co. V.
United States, Cust. & Pat.App., 86 F.2d 124, 131; Clarke
v. Johnson, 119 Ga. 163, 33 S.E.2d 425, 427; resembling,
Clarke v. Johnson, 199 Ga. 163, 33 S.E.2d 425, 427; same
manner, Seilaz v. Seilaz, 24 Tenn.App. 611, 148 S.W.2d 23,
25; similar, Castell v. United States, D.C.N.Y., 20 F.Supp.
175, 179; substantially similar, Jones v. H. D. & J. K.
Crosswell, C.C.A.S.C., 60 F.2d 827, 829.
LIKE A SHOT. Quickly, instantaneously. Mc-
Nulty v. Joseph Horne Co., 298 Pa. 244, 148 A. 105,
106.
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LIKE
LIKE BENEFITS. Similar in salient features.
MacKay v. City of Port Huron, 288 Mich. 129, 284
N.W. 671, 672.
LIKE CHARACTER. Similarity. Bader v. Coale,
48 Ca1.App.2d 276, 119 P.2d 763, 765.
LIKELIHOOD. Probability. Clark v. Welch, C.C.
A.Mass., 140 F.2d 271, 273. The word imports
something less than reasonably certain. Ottgen
v. Garey, 41 Ohio App. 499, 181 N.E. 485, 487.
LIKELY. Probable. Horning v. Gerlach, 139 Cal.
App. 470, 34 P.2d 504, 505; In all probability. Nee-
ly v. Chicago Great Western R. Co., Mo.App., 14
S.W.2d 972, 978.
LIKEWISE. In like manner. Reece v. McCrary,
51 Ga.App. 746, 181 S.E. 697.
LIMB. A member of the human body. In the
phrase "life and limb," the latter term appears to
denote bodily integrity in general; but in the def•
inition of "mayhem" it refers only to those mem-
bers or parts of the body which may be useful to
a man in fighting. 1 Bl.Comm. 130.
LIMENARCHA. In Roman law. An officer who
had charge of a harbor or port. Dig. 50, 4, 18, 10;
Cod. 7, 16, 38.
LIMIT, v. To abridge, confine, and restrict.
Brown v. Board of Appeals of City of Springfield,
227 Ill. 644, 159 N.E. 225, 226, 56 A.L.R. 242. To
circumscribe. Orme v. Atlas Gas & Oil Co., 217
Minn. 27, 13 N.W.2d 757, 761. To mark out; to
define; to fix the extent of. Brown.
Thus, to limit an estate means to mark out or to define
the period of its duration, and the words employed in
deeds for this purpose are thence termed "words of limita-
tion," and the act itself is termed "limiting the estate."
Brown.
LIMIT, n. A bound; a restraint; a circumscrip-
tion; a boundary. Casler v. Connecticut Mut. L.
Ins. Co., 22 N.Y. 429. Boundary, border or outer
line of thing. State v. Jones, 133 Me. 387, 178 A.
719, 720. Extreme boundary. Lane v. Lukens, 48
Idaho 517, 283 P. 532, 533.
Within act giving injured party right of direct action
against automobile liability insurer within terms and
limits of policy, word "limits" refers not only to amount
of policy, but to time in which notice of accident must be
given. Duncan v. Pedare, La.App., 161 So. 221, 228.
LIMITATION. Restriction or circumspection; set-
tling an estate or property; a certain time allowed
by a statute for litigation.
The provisions of State Constitution are not a "grant"
but a "limitation" of legislative power, Ellerbe v. David,
193 S.C. 332, 8 S.E.2d 518, 520; Mulholland v. Ayers, 109
Mont. 558, 99 P.2d 234, 239.
Corporations
Under the statute providing that all corpora.
tions expiring by their own "limitation" shall for
certain purposes be continued as bodies corporate
for a term of three years, the word "limitation"
is an act of limiting, a restriction of power, a
qualification. Porter v. Tempa Min. & Mill. Co.,
59 Nev, 332, 93 P.2d 741, 743
Estates
The restriction or circumscription of an estate,
in the conveyance by which it is granted, in re-
spect to the interest of the grantee or its duration;
the specific curtailment or confinement of an es-
tate, by the terms of the grant, so that it cannot
endure beyond a certain period or a designated
contingency.
A "limitation" on a grant determines an estate upon the
happening of the event itself without the necessity of doing
any act to regain the estate, such as re-entry. Gulf Pro-
duction Co. v. Continental Oil Co., Tex., 132 S.W.2d 553,
563.
A limitation, whether made by the express words of the
party or existing in intendment of law, circumscribes the
continuance of time for which the property is to be
enjoyed, and by positive and certain terms, or by refer-
ence to some event which possibly may happen, marks the
period at which the time of enjoyment shall end. Smith
v. Smith, 23 Wis. 181, 99 Am.Dec. 153; Hoselton v. Hosel-
ton, 166 Mo. 182, 65 S.W. 1005; Stearns v. Godfrey, 16 Me.
160.
The "unless" provisions of oil and gas lease which pro-
vided that if no well should be commenced within one
year, lease should terminate unless privilege of commence-
ment should be deferred by payment of rental, were a
"limitation" on the grant. Gulf Production Co. v. Con-
tinental Oil Co., 139 Tex. 183, 132 S.W.2d 553, 563.
The word "limitation" defines the extent or quality of an
estate conveyed or devised. Richardson v. Roney, 382 Dl.
528, 47 N.E.2d 714.
Collateral limitation. One which gives an interest in an
estate for a specified period, but makes the right of enjoy-
ment to depend on some collateral event, as an estate to A.
till B. shall go to Rome. Templeman v. Gibbs, 86 Tex. 358,
24 S.W. 792; 4 Kent, Comm. 128.
Conditional limitation. A condition followed by a limi-
tation over to a third person in case the condition be not
fulfilled or there be a breach of it. Stearns v. Godfrey, 16
Me. 158; Hess v. Kernen Bros., 169 Iowa 646, 149 N.W. 847,
851; Yarbrough v. Yarbrough, 151 Tenn. 221, 209 S.W. 36,
38. Board of Education of Borough of West Paterson v.
Brophy, 90 N.J.Eq. 57, 106 A. 32, 34. A conditional limita-
tion is where an estate is so expressly defined and limited
by the words of its creation that it cannot endure for any
longer time than till the contingency happens upon which
the estate is to fail. 1 Steph.Comm. 309. Between condi-
tional limitations and estates depending on conditions sub-
sequent there is this difference : that in the former the
estate determines as soon as the contingency happens; but
in the latter it endures until the grantor or his heirs take
advantage of the breach. 1 Steph.Comm. 310.
Contingent limitation. When a remainder in fee is lim-
ited upon any estate which would by the common law be
adjudged a fee tail, such a remainder is valid as a con-
tingent limitation upon a fee, and vests in possession on
the death of the first taker without issue living at the time
of his death. Rev.Codes N.D.1899, 1 3328 (Comp.Laws 1913,
§ 5307).
Limitation in law. A limitation in law, or an estate lim-
ited, is an estate to be holden only during the continuance
of the condition under which it was granted, upon the
determination of which the estate vests immediately in him
in expectancy. 2 Bl.Comm. 155.
Limitation over. This term includes any estate in the
same property created or contemplated by the conveyance,
to be enjoyed after the first estate granted expires or is
exhausted. Lane v. Citizens & Southern Nat. Bank, 195
Ga. 828, 25 S.E.2d 800, 802, 803. Thus, in a gift to A. for
life, with remainder to the heirs of his body, the remain-
der is a "limitation over" to such heirs. Ewing v. Shrop-
shire, 80 Ga. 374, 7 S.E. 554.
Limitation title. Full title, precluding all claims. Free
v. Owen, 131 Tex. 281, 113 S.W.2d 1221, 1224.
Special limitation. A qualification serving to mark out
the bounds of an estate, so as to determine it ipso facto
in a given event, without action, entry, or claim, before it
would, or might, otherwise expire by force of, or according
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LIMITED
to, the general limitation. Henderson v. Hunter, 59 Pa.
340.
Title by limitation. A prescriptive title; one which is
indefeasible because of the expiration of the time pre-
scribed by the statute of limitations for the bringing of
actions to test or defeat it. See Dalton v. Rentaria, 2 Ariz.
275, 15 P. 37.
Words of limitation. In a conveyance or will, words
which have the effect of marking the duration of an estate
are termed "words of limitation." Thus, in a grant to A.
and his heirs, the words "and his heirs" are words of limi-
tation, because they. show that A. is to take an estate in
fee-simple and do not give his heirs anything. Fearne,
Rem. 78. And see Ball v. Payne, 6 Rand., Va., 75; Sum-
mit v. Yount, 109 Ind. 506, 9 N.E. 582.
Limitation of Actions
The term "limitation" means the time at the
end of which no action at law or suit in equity
can be maintained. Uscienski v. National Sugar
Refining Co., 18 A.2d 611, 612, 19 N.J.Misc. 240.
American Nat. Ins. Co. v. Hicks, Tex.Com.App.,
35 S.W.2d 128, 130, 75 A.L.R. 623.
The restriction by statute of the right of action to cer-
tain periods of time, after the accruing of the cause of
action, beyond which, except in certain specified cases, it
will not be allowed. Also the period' of time so limited by
law for the bringing of actions. See Keyser v. Lowell, 117
F. 404, 54 C.C.A. 574; Battle v. Shivers, 39 Ga. 409; Baker
v. Kelley, 11 Minn. 493 (Gil. 358) ; Riddelsbarger v. Hart-
ford F. Ins. Co., 7 Wall. 390, 19 L.Ed. 257.
Limitation of Assize
In old practice. A certain time prescribed by
statute, within which a man was required to al-
lege himself or his ancestor to have been seised
of lands sued for by a writ of assize. Cowell.
Statute of Limitations
A statute prescribing limitations to the right of
action on certain described causes of action; that
is, declaring that no suit shall be maintained on
such causes of action unless brought within a spe-
cified period after the right accrued. Statutes of
limitation are statutes of repose. Philadelphia, B.
& W. R. Co. v. Quaker City Flour Mills Co., 282
Pa. 362, 127 A. 845, 846, and are such legislative
enactments as prescribe the periods within which
actions may be brought upon certain claims or
within which certain rights may be enforced.
People v. Kings County Development Co., 48 Cal.
App. 72, 191 P. 1004, 1005. In criminal cases, how-
ever, a statute of limitation is an act of grace,
a surrendering by sovereign of its right to prose-
cute. People v. Ross, 325 Ill. 417, 156 N.E. 303,
304.
LIMITED. Restricted; bounded; prescribed. Con-
fined within positive bounds; restricted in dura-
tion, extent, or scope.
As to limited "Company," "Divorce," "Fee," and
"Partnership," see those titles.
LIMITED ADMINISTRATION. An administra-
tion of a temporary character, granted for a par-
ticular period, or for a special or particular pur-
pose. Holthouse.
LIMITED APPEAL. An appeal from only ad-
verse portions of a decree; it is limited to the par-
ticular portions of the decree appealed from. Fox
v. River Heights, 22 Tenn.App. 166, 118 S.W.2d
1104, 1114.
LIMITED COURT. Where special authority, in
derogation of common law, is conferred by statute
on a court of general jurisdiction, it becomes an
"inferior or limited court". Partlow v. Partlow,
246 Ala. 259, 20 So.2d 517, 518.
LIMITED EXECUTOR. An executor whose ap-
pointment is qualified by limitations as to the
time or place wherein, or the subject-matter
whereon, the office is to be exercised; as distin-
guished from one whose appointment is absolute,
i. e., certain and immediate, without any restric-
tion in regard to the testator's effects or limita-
tion in point of time. 1 Williams, Ex'rs, 249, et
seq.
LIMITED GUARANTY. A limited guaranty is
ordinarily one restricted in its application to a
single transaction. Cooling v. Springer, 3 Terry
228, 30 A.2d 466, 469.
LIMITED JURISDICTION. This term is ambig-
uous, and the books sometimes use it without due
precision. It is sometimes carelessly employed in-
stead of "special." The true distinction between
courts is between such as possess a general and
such as have only a special jurisdiction for a par-
ticular purpose, or are clothed with special pow-
ers for the performance. Obert v. Hammel, 18
N.J.Law, 73.
LIMITED LIABILITY. The liability of the mem-
bers of a joint-stock company may be either un-
limited or limited; and, if the latter, then the limi-
tation of liability is either the amount, if any, un-
paid on the shares, (in which case the limit is said
to be "by shares,") or such an amount as the
members guaranty in the event of the company
being wound up, (in which case the limit is said
to be "by guaranty.") Brown.
LIMITED OR SPECIAL JURISDICTION. Juris-
diction which is confined to particular causes, or
which can be exercised only under the limitations
and circumstances prescribed by the statute. Mid-
west Piping & Supply Co. v. Thomas Spacing
Mach. Co., 109 Pa.Super. 571, 167 A. 636, 638.
LIMITED OWNER. A tenant for life, in toil, or
by the curtesy, or other person not having a fee-
simple in his absolute disposition.
LIMITED PAYMENT PLAN. A policy upon a
"limited payment plan" is a paid-up policy, and
insurance upon which no further premium is to
be paid. Bankers Life & Loan Ass'n v. Chase,
Tex.Civ.App., 114 S.W.2d 374, 376.
LIMITED PERIOD. As used in statutes author-
izing assignment in actions for divorce and sep-
arate maintenance, of homestead selected from
separate property of either, to innocent party for
limited period, means period of natural life of
such innocent party. Greenlee v. Greenlee, 7 Cal.
2d 579, 61 P.2d 1157, 1159.
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LIMITED
LIMITED POLICY. Is one specifically excluding
certain classes or types of loss. State Compensa-
tion Ins. Fund v. Industrial Accident Commission,
56 Cal.App.2d 443, 132 P.2d 890, 894.
LIMITED POWER OF APPOINTMENT. Power
of appointment is limited when it is exercisable
only in favor of persons or a class of persons des-
ignated in the instrument creating the power.
Johnstone v. Commissioner of Internal Revenue,
C.C.A.9, 76 F.2d 55, 57.
LIMITED PUBLICATION. Communication to a
select number on condition, express or implied,
that it is not intended to be thereafter common
property. Berry v. Hoffman, 125 Pa.Super. 261,
189 A. 516, 519. Waring v. WDAS Broadcasting
Station, 327 Pa. 433, 194 A. 631, 636.
LIMOGIA. Enamel. Du Cange.
LINARIUM. In old English law. A flax plat,
were flax is grown. Du Cange.
LINCOLN'S INN. An inn of court. See Inns of
Court.
LINE.
Lineal measure, containing the one-twelfth part
of an inch.
The boundary or line of division between two
estates.
Route. Menut & Parks Co. v. Cray, 114 Vt. 41,
39 A.2d 342, 347, 156 A.L.R. 404.
When a particular type of silver plate has gone through
several patterns and has gained recognition, it is often
called in the trade a "line". Oneida, Limited, v. National
Silver Co., Sup., 25 N.Y.S.2d 271, 277.
Line by Line Budget. A detailed itemization of all
expenditures by budget line. Block v. Sprague, Sup., 24
N.Y.S.2d 245, 247.
Line of an Intersection. A straight line substantially at
right angles to bounds of highway at a point where, to the
reasonable perception of a driver, the highway starts to
widen as the result of the outcurving of its bounds to form
the junction. Beck v. Sosnowitz, 125 Conn. 553, 7 A.2d 389,
391.
Line of credit. A margin or fixed limit of credit granted
by one to another, to the full extent of which the latter
may avail himself in his dealings with the former, but
which he must not exceed ; usually intended to cover a
series of transactions, in which case, when the customer's
line of credit is nearly or quite exhausted, he is expected
to reduce his indebtedness by payments before drawing
upon it further. Pittinger v. Southwestern Paper Co. of
Fort Worth, Tex.Civ.App., 151 S.W.2d 922, 925.
Line of duty. In military law and usage, an act is said
to be done, or an injury sustained, "in the line of duty,"
when done or suffered in the performance or discharge of
a duty incumbent upon the individual in his character as a
member of the military or naval forces. See Rhodes v.
U. S., 79 F. 743, 25 C.C.A. 186. An injury suffered or dis-
ease contracted by a sailor is considered to have been in
"line of duty" unless actually caused by something for
which sailor is responsible which intervenes between his
performance of duty and the injury or disease. Meyer v.
Dollar S. S. Line, C.C.A.Wash., 49 F.2d 1002, 1003.
Line of electrically infinite length. "Reflectionless line"
and "traveling wave" are synonymous terms. Radio Cor-
poration of America v. Mackay Radio & Telegraph Co.,
D.C.N.Y., 16 F.Supp. 610, 612.
Line of ordinary high tide. Ordinary high tide may, for
practical purposes, within a restricted area, be conceived
as a level plane; the "line of ordinary high tide" is the
intersection of said plane with the surface of the land.
Swarzwald v. Cooley, 39 Cal.App.2d 306, 103 P.2d 580, 584.
Building line. Sees Building Line.
Collateral line. See Descent,
Descent. See Descent.
Direct line. See Descent.
Maternal line. See Maternal Line.
Paternal line. See Paternal Line.
Public utilities. See Public Utility.
LINEA. Lat. A line; line of descent. See De-
scent.
LINEA OBLIQUA. In the civil law. The oblique
line. More commonly termed "linea transver-
salis."
LINEA RECTA. The direct line; the vertical line.
In computing degrees of kindred and the succession to
estates, this term denotes the direct line of ascendants and
descendants. Where a person springs from another imme-
diately, or mediately through a third person, they are said
to be in the direct line, (linea recta,) and are called
"ascendants" and "descendants." Mackeld.Rom.Law, §
129.
LINEA RECTA EST INDEX SUI ET OBLIQUI;
LEX EST LINEA RECTI. Co. Litt. 158. A right
line is a test of itself, and of an oblique; law is a
line of right.
LINEA RECTA SEMPER PRIEFERTUR TRANS-
VERSALI. The right line is always preferred to
the collateral. Co. Litt. 10; Broom, Max. 529.
LINEA TRANSVERSALIS. A collateral, trans-
verse, or oblique line. Where two persons are
descended from a third, they are called "collat-
erals," and are said to be related in the collateral
line, (linea transversa or obliqua.)
LINEAGE. Race; progeny; family, ascending or
descending. Lockett v. Lockett, 94 Ky. 289, 22 S.
W. 224. Line of descent from an ancestor, hence,
family, race, stock. In re Herrick's Estate, 273 N.
Y.S. 803, 152 Misc. 9.
LINEAL. That which comes in a line; especially
a direct line, as from father to son. Collateral
relationship is not called "lineal," though the ex-
pression "collateral line," is not unusual. Proceed-
ing in direct or unbroken line, hereditary, un-
broken in course, distinguished from collateral, as
lineal descent, lineal succession, having an ances-
tral basis or right. In re Herrick's Estate, 273 N.
Y.S. 803, 152 Misc. 9.
LINEAL CONSANGUINITY. That kind of con-
sanguinity which subsists between persons of
whom one is descended in a direct line from the
other; as between a particular person and his
father, grandfather, great-grandfather, and so up-
ward, in the direct ascending line; or between the
same person and his son, grandson, great-grand-
son, and so downwards in the direct descending
line. 2 Bl.Comm. 203; Willis Coal & Min. Co. v.
Grizzell, 198 Ill. 313, 65 N.E. 74.
LINEAL DESCENT. See Descent.
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LIQUIDATED
LINEAL HEIR. One who inherits in a line either
ascending or descending from the common source,
as distinguished from a collateral heir. Rocky
Mountain Fuel Co. v. Kovaics, 26 Colo.App. 554,
144 P. 863, 865.
The words "lineal heirs" like "heirs of the body" mean
all lineal descendants to the remotest posterity and are
words of "Inheritance" and not of "purchase," unless the
instrument clearly shows that they were used in a re-
stricted sense to denote "children." Sims v. Clayton, 193
S.C. 98, 7 S.E.2d 724, 727.
LINEAL WARRANTY. A warranty by an an-
cestor from whom the title did or might have
come to the heir. 2 Bl.Comm. 301; Rawle, Co y . 30.
LINES AND CORNERS. In deeds and surveys.
Boundary-lines and their angles with each other.
Nolin v. Parmer,. 21 Ala. 66.
LINK. A unit in a connected series; anything
which serves to connect or bind together the
things which precede and follow it. Thus, we
speak of a "link in the chain of title." Something
which binds together, or connects, separate things;
a part of a connected series; a tie, a bond. City
of Independence v. Board of Com'rs of Mont-
gomery County, 140 Kan. 661, 38 P.2d 105, 106.
LIQUERE. Lat. In the civil law. To be clear,
evident, or satisfactory.
When a judex was in doubt how to decide a case, he rep-
resented to the prwtor, under oath, sibi non liquere, (that
It was not clear to him,) and was thereupon discharged.
Calvin.
LIQUET. It is clear or apparent; it appears.
Satis liquet, it sufficiently appears. 1 Strange, 412.
LIQUID DEBT. A debt immediately and uncon-
ditionally due. In re Brock, 312 Pa. 7, 166 A. 778,
780.
LIQUIDATE. To pay and settle. Gibson v. Amer-
ican Ry. Express Co., 195 Iowa 1126, 193 N.W. 274;
Farmers State Bank & Trust Co. v. Brady, 137
Tex. 39, 152 S.W.2d 729, 732; Fleckner v. Bank
of U. S., La., 8 Wheat. 338, 362, 5 L.Ed. 631.
Also to liquidate means to adjust. State ex rel.
Banister v. Cantley, 330 Mo. 943, 52 S.W.2d 397,
399. Belden v. Modern Finance Co., Ohio App., 61
N.E.2d 801, 804; to ascertain the amount, or the
several amounts, of the liabilities of insolvent and
apportion the assets toward discharge of the in-
debtedness, Farmers State Bank & Trust Co. v.
Brady, 137 Tex. 39, 152 S.W.2d 729, 732; to ascer-
tain the balance due and to whom payable, State
ex rel Banister v. Cantley, 330 Mo. 943, 52 S.W.2d
397, 399; to assemble and mobilize the assets, set-
tle with the creditors and the debtors and appor-
tion the remaining assets, if any, among the stock-
holders or owners. United States v. Metcalf, C.C.
A.Cal., 131 F.2d 677, 679; State ex rel. Gibson v.
American Bonding & Casualty Co., 225 Iowa 638,
281 N.W. 172, 175; to clear up, State ex rel. Banis-
ter v. Cantley, 330 Mo. 943, 52 S.W.2d 397, 399;
Fleckner v. Bank of U. S., La., 8 Wheat. 338, 362,
5 L.Ed. 631; to determine by agreement or liti-
gation precise amount of indebtedness, Continental
Ins. Co. v. Harris, 190 Ark. 1110, 82 S.W.2d 841,
843; to discharge, Continental Ins. Co. v. Harris,
190 Ark. 1110, 82 S.W.2d 841, 843; to extinguish
an indebtedness, Gibson v. American Ry. Express
Co., 195 Iowa 1126, 193 N.W. 274, 278; Belden v.
Modern Finance Co., Ohio App., 61 N.E.2d 801,
804; to gather in the assets, convert them into
cash and distribute them according to the legal
rights of the parties interested, Browne v. Ham-
mett, 133 S.C. 446, 131 S.E. 612, 614; to lessen,
Fleckner v. Bank of U. S., La., 8 Wheat. 338, 362,
5 L.Ed. 631; to make amount of indebtedness
clear and certain, Continental Ins. Co. v. Harris,
190 Ark. 1110, 82 S.W.2d 841, 843; to reduce to
precision in amount and to satisfy, State ex rel.
Banister v. Cantley, 330 Mo. 943, 52 S.W.2d 397,
399; to sell, Esser v. Chimel, Del.Ch., 30 A.2d 685,
687; to "wind up" affairs of a business, Ex parte
Amos, 94 Fla. 1023, 114 So. 760, 765; State ex rel.
Gibson v. American Bonding & Casualty Co., 225
Iowa 638, 281 N.W. 172, 175.
LIQUIDATED. Ascertained; determined; fixed;
settled; made clear or manifest. Cleared away;
paid; discharged. Canda v. Canda, 92 N.J.Eq.
423, 112 A. 727, 728, 13 A.L.R. 1029; State Bank of
Stratford v. Young, 159 Iowa 375, 140 N.W. 376,
380; Sinclair Refining Co. v. Unadilla Motor &
Supply Co., 213 N.Y.S. 81, 83, 126 Misc. 292.
Adjusted, certain, or settled. Murchison v. Levy Plumb-
ing Co., Tex.Civ.App., 73 S.W.2d 967, 968; McMurray v.
Faust, 224 Iowa 50, 276 N.W. 95, 100. Declared by the par-'
ties as to amount, U. S. v. Skinner & Eddy Corporation,
D.C.Wash., 28 F.2d 373, 386; made certain as to what and
how much is due, Gasper v. Mayer, 171 Okl. 457, 43 P.2d
467, 471; Electrical Products Corporation of Oregon v.
Ziegler Drug Stores, 157 Or. 267, 71 P.2d 583, 584.
Made certain or fixed by agreement of parties or by
operation of law, Sawyer v. Somers Lumber Co., 86 Mont.
169, 282 P. 852, 854; Miller v. Prince Street Elevator Co.,
41 N.M. 330, 68 P.2d 663, 666. "Settled, paid, discharged,"
Trenton Banking Co. v. Kennedy, 17 N.J.Misc. 222, 8 A.2d
232, 234. "Settlement," "arrangement," "agreement," "to
clear from obscurity," Davies v. Turner, 61 Ga.App. 531,
6 S.E.2d 356, 359.
LIQUIDATED ACCOUNT. An account whereof
the amount is certain and fixed, either by the act
and agreement of the parties or by operation of
law; a sum which cannot be changed by the
proof; it is so much or nothing; but the term
does not necessarily refer to a writing. Gasper v.
Mayer, 171 Okl. 457, 43 P.2d 467, 471. Williamson
v. City of Eastland, Tex.Civ.App., 65 S.W.2d 774,
775.
LIQUIDATED CLAIM. Claim, amount of which
has been agreed on by parties to action or is fixed
by operation of law. Tapp v. Tapp's Trustee, 299
Ky. 345, 185 S.W.2d 534, 535; United States Fi-
delity & Guaranty Co. v. American Bldg. Main-
tenance Co. of Los Angeles, 7 Cal.App.2d 683, 46
P.2d 984, 988.
A claim which can be determined with exactness from
parties' agreement or by arithmetical process or applica-
tion of definite rules of law, Huo Chin Yin v. Amino Prod-
ucts Co., 141 Ohio St. 21, 46 N.E.2d 610, 614; Petersen v.
Graham, 7 Wash.2d 464, 110 P.2d 149, 154.
LIQUIDATED DAMAGES. See Damages.
LIQUIDATED DEBT. A debt is liquidated when
it is certain what is due and how much is due.
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Roberts v. Prior, 20 Ga. 562; Nelson v. Zahn Grain
Co., 191 Okl. 181, 127 P.2d 803, 805. That which
has been made certain as to amount due by agree-
ment of parties or by operation of law. Gasper v.
Mayer, 171 Okl. 457, 43 P.2d 467, 471.
LIQUIDATED DEMAND. A demand the amount
of which has been ascertained or settled by agree-
ment of the parties, or otherwise. Williamson v.
City of Eastland, Tex.Civ.App., 65 S.W.2d 774, 775;
Mitchell v. Addison, 20 Ga. 53.
Amount claimed is a "liquidated demand" if it is sus-
ceptible of being made certain in amount by mathematical
calculations from factors which are or ought to be in pos-
session or knowledge of party to be charged. Rifkin v.
Safenovitz, 131 Conn. 411, 40 A.2d 188, 189.
LIQUIDATING DISTRIBUTION. A distribution
of stock pursuant to reorganization plan. Dwor-
sky v. Buzza Co., 215 Minn. 282, 9 N.W.2d 767, 769.
LIQUIDATING PARTNER. The partner who up-
on the dissolution or insolvency of the firm, Is ap-
pointed to settle its accounts, collect assets, adjust
claims, and pay debts. Garretson v. Brown, 185
Pa. 447, 40 A. 300.
LIQUIDATION. The act or process of settling or
making clear, fixed, and determinate that which
before was uncertain or unascertained.
Payment, satisfaction, or collection, Bassett v. City Bank
& Trust Co., 116 Conn. 617, 165 A. 557; realization on
assets and discharge of liabilities, In re Burger's Estate,
276 Mich. 485, 267 N.W. 887, 891. To clear away—to less-
en—a debt, Craddock-Terry Co. v. Powell, 180 Va. 242, 22
S.E.2d 30, 34; to pay or settle, In re Klink's Estate, 310
I1l.App. 609, 35 N.E.2d 684, 687. To take over for collec-
tion, Belden v. Modern Finance Co., Ohio App., 61 N.E.2d
801, 804.
As applied to a bank or other corporation (or sometimes
to the affairs of an individual) liquidation means winding
up. People ex rel. Palmer v. Acme Plate Glass Mut. Ins.
Co., 292 Iil.App. 275, 10 N.E.2d 988, 991; Luikart v. Flan-
nigan, 130 Neb. 901, 267 N.W. 165, 167. It is also defined as
winding up affairs by realizing upon assets, paying lia-
bilities, and appropriating the profit or loss. Horn & Har-
dart Banking Co. v. United States, D.C.Pa., 34 F.Supp. 89,
90; Young v. Blandin, 215 Minn. 111, 9 N.W.2d 313, 316;
Northwest Bancorporation v. Commissioner of Internal
Revenue, C.C.A.8, 88 F.2d 293, 296; winding up and dis-
tribution of assets among creditors and stockholders,
United States v. Bank of New York & Trust Co., D.C.N.Y.,
10 F.Supp. 269, 271; winding up affairs and settlement
with creditors, New York Title & Mortgage Co. v. Fried-
man, 276 N.Y.S. 72, 153 Misc. 697; winding up or settling
with creditors and debtors, Wilson v. Superior Court in
and for Santa Clara County, 2 Ca1.2d 632, 43 P.2d 286, 288.
LIQUIDATION DIVIDEND. Act or operation in
winding up affairs of firm or corporation, a set-
tling with its debtors and creditors, and an ap-
propriation and distribution to its stockholders
ratably of the amount of profit and loss. Hell-
man v. Helvering, App.D.C., 68 F.2d 763, 765.
LIQUIDATION TAXABLE. Distribution to their
own stockholders of cash and stock received by
selling corporations for their assets. Commission-
er of Internal Revenue v. Sussman, C.C.A.2, 102
F.2d 919, 921.
LIQUIDATOR. A person appointed to carry out
the winding up of a company.
Official Liquidator. In English law. A person ap-
pointed by the judge in chancery, in whose court
a joint-stock company is being wound up to bring
and defend suits and actions in the name of the
company, and generally to do all things necessary
for winding up the affairs of the company, and
distributing its assets. 3 Steph.Comm. 24.
LIQUOR. Spirituous or intoxicating liquor. Mc-
Coy v. State, 177 Ark. 1053, 9 S.W.2d 241, 242;
Wooten v. State, 47 Ga.App. 301, 170 S.E. 392;
State v. Hickey, 198 N.C. 45, 150 S.E. 615, 617;
People v. Crilley, 20 Barb. (N.Y.) 248.
All kinds of Intoxicating decoctions, liquids, or bever-
ages, Newton v. State ex rel. Atty. Gen., 234 Ala. 91, 175
So. 563, 564. Any alcoholic or intoxicating liquid, People
v. Draper, 134 Cal.App. 1, 22 P.2d 604.
Any beverage, as temperance liquors, or those not intoxi-
cating. Benton v. State, 24 Ala.App. 441, 136 So. 428, 429.
Any liquid substance, Newton v. State ex rel. Atty. Gen.,
234 Ala. 91, 175 So. 563, 564.
Distilled spirits stronger than malt beverages and fer-
mented wines, Peurifoy v. State, 53 Ga.App. 515, 186 S.E..
461, 462.
Such as is prohibited by prohibition law, Newton v.
State, 27 Ala.App. 492, 175 So. 562, 563.
Whisky, Bolivar v. Monnat, 248 N.Y.S. 722, 727, 232 App.
Div. 33; Jones v. State, 23 Ala.App. 339, 125 So. 382, 383.
See Alcoholic Liquors; Intoxicating Liquor;
Spirituous Liquors.
LIQUOR DEALER. One who carries on the busi-
ness of selling intoxicating liquors, either at whole-
sale or retail and irrespective of whether the liq-
uor sold is produced or manufactured by himself
or by others; but there must be more than a
single sale. See Timm v. Harrison, 109 Ill. 601;
U. S. v. Allen, D.C.Iowa, 38 F. 738; State v. Dow,
21 Vt. 484; Mansfield v. State, 17 Tex.App. 472.
LIQUOR–SHOP. A house where spirituous liq-
uors are kept and sold. Wooster v. State, 6 Baxt.
(Tenn.) 534.
LIQUOR TAX CERTIFICATE. Under the excise
laws of New York a certificate of payment of the
tax imposed upon the business of liquor-selling,
entitling the holder to carry on that business, and
differing from the ordinary form of license in that
it does not confer a mere personal privilege but
creates a species of property which is transferable
by the owner. See In re Lyman, 160 N.Y. 96, 54
N.E. 577; In re Cullinan, 82 App.Div. 445, 81 N.Y.
S. 567.
LIRA. The name of an Italian coin, of the value
of about eighteen cents.
LIS. Lat. A controversy or dispute; a suit or
action at law.
LIS ALIBI PENDENS. A suit pending elsewhere.
The fact that proceedings are pending between a plain-
tiff and defendant in one court in respect to a given mat
ter is frequently a ground for preventing the plaintiff from
taking proceedings in another court against the same
defendant for the same object and arising out of the same
cause of action. Sweet.
LIS MOTA. A controversy moved or begun.
By this term is meant a dispute which has arisen upon a
point or question which afterwards forms the issue upon
which legal proceedings are instituted. Westfelt v. Adams,
131 N.C. 379, 42 S.E. 823. After such controversy has
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arisen, (post litem motam,) it is held, declarations as to
pedigree, made by members of the family since deceased,
are not admissible. See 4 Camp. 417; 6 Car. & P. 560.
LIS PENDENS. A pending suit. Moore v. Zelic,
338 Ill. 583, 170 N.E. 664, 666; People ex rel.
O'Connor v. City of Chicago, 299 Ill.App. 504, 20 N.
E.2d 306, 307; jurisdiction, power, or control which
courts acquire over property in suit pending ac-
tion and until final judgment, Commonwealth ex
rel. Kelley v. Kelly, 322 Pa. 178, 185 A. 307, 310;
Coleman v. Law, 170 Ga. 906, 154 S.E. 445, 448, 74
A.L.R. 684; notice of all facts apparent on face of
pleadings and exhibits and of all other facts of
which they would put a person of ordinary pru-
dence on inquiry, Ben Williamson & Co. v. Hall,
290 Ky. 672, 161 S.W.2d 905, 907; notice of pen-
dency of suit and warning to anyone interested
to examine proceedings, Harris v. Lipson, 167 Va.
365, 189 S.E. 349, 352, 108 A.L.R. 912; a suit or
controversy in court, Mayne v. St. Louis Union
Trust Co., C.C.A.Mo., 64 F.2d 843, 845; that legal
process, in a suit regarding land, which amounts
to legal notice to all the world that there is a dis-
pute as to the title. Stim. Law Gloss.
The filing of the bill and serving a subpoena creates a
lis pendens, except when statutes require some record.
Stim.Law Gloss. Tinsley v. Rice, 105 Ga. 285, 31 S.E. 174;
Hines v. Duncan, 79 Ala. 117, 58 Am.Rep. 580; Troll v.
City of St. Louis, 257 Mo. 626, 168 S.W. 167, 177; Heck-
mann v. Detlaff, 283 Ill. 505, 119 N.E. 639, 640. In the civil
law. A suit pending. A suit was not said to be pending
before that stage of it called "litis contestatio" (q. v.).
Mackeld.Rom.Law, § 219; Calvin.
Notice of lis pendens. A notice filed for the pur-
pose of warning all persons that the title to cer-
tain property is in litigation, and that, if they
purchase the defendant's claim to the same, they
are in danger of being bound by an adverse judg-
ment. See Empire Land & Canal Co. v. Engley,
18 Colo. 388, 33 P. 153.
The notice is for the purpose of preserving rights pend-
ing litigation. Mitchell v. Federal Land Bank of St. Louis,
206 Ark. 253, 174 S.W.2d 671, 674.
LIST. A docket or calendar of causes ready for
trial or argument, or of motions ready for hear-
in
Entering or enrolling in a list; to enter in an official
list or schedule; as, to list property for taxation ; to put
into a list or catalogue; register ; enroll. Baldrige v.
Flothow, 123 Neb. 218, 242 N.W. 414, 417.
Legal voters. Official registry of voters. Common-
wealth v. Ballou, 283 Mass. 304, 186 N.E. 494, 497.
LISTED. Included in a list; put on a list, particu-
larly on a list of taxable persons or property.
LISTERS. This word is used in some of the
states to designate the persons appointed to make
lists of taxables. See Rev. St. Vt. 538.
LISTING. An alleged oral agreement to sell to
any purchaser procured by broker for certain
amount was a "listing" of the property. Zeligson
v. Hartman-Blair, Inc., C.C.A.Kan., 135 F.2d 874,
876.
"Listing property for taxation" is the making of a
schedule or inventory of such property, whereby owner
makes statement of property in response to assessor's
inquiries, Templing v. Bennett, 156 Kan. 68, 131 P.2d 904,
907. The word listing ordinarily implies an official listing
of the persons and property to be taxed, and a valuation
of the property of each person as a basis of apportionment.
Buser v. Kriechbaum, 229 Iowa 888, 295 N.W. 455, 460.
LITE PENDENTE. Lat. Pending the suit.
Fleta, lib. 2, c. 54, § 23.
LITEM DENUNCIARE, Lat. In the civil law.
To cast the burden of a suit upon another; par-
ticularly used with reference to a purchaser of
property who, being sued in respect to it by a
third person, gives notice to his vendor and de-
mands his aid in its defense. See Mackeld. Rom.
Law, § 403.
LITEM SUAM FACERE. Lat. To make a suit
his own. Where a judex, from partiality or en-
mity, evidently favored either of the parties, he
was said litem suam facere. Calvin.
LITERA. Lat. A letter. The letter of a law, as
distinguished from its spirit. See Letter.
LITERA PISANA. The Pisan letter. A term ap-
plied to the old character in which the copy of
the Pandects formerly kept at Pisa, in Italy, was
written. Spelman.
LITERA1E. Letters. A term applied in old Eng-
lish law to various instruments in writing, pub-
lic and private.
LITERIE DIMISSORLE. Dimissory letters (q. v.).
LITERIE HUMANIORES. A term including
Greek, Latin, general philology, logic, moral phil-
osophy, metaphysics; the name of the principal
course of study in the University of Oxford.
Wharton.
LITER)E MORTUAZE. Dead letters; fulfilling
words of a statute.
Lord Bacon observes that "there are in every statute
certain words which are as veins, where the life and blood
of the statute cometh, and where all doubts do arise, and
the rest are literce mortuce, fulfilling words." Bac.St.Uses,
(Works, iv. 189).
LITERZE PATENTES. Letters patent; literally,
open letters.
LITERZE PATENTES REGIS NON ERUNT VA-
CUE. 1 Bulst. 6. The king's letters patent shall
not be void.
LITER1E PROCURATORLE. In old English law.
Letters procuratory; letters of procuration; let-
ters of attorney. Bract. fols. 40, 43.
LITERIE RECOGNITIONIS. In maritime law. A
bill of lading. Jac. Sea Laws, 172.
LITERZE SCRIPTIE MANENT. Written words
last.
LITERIE SIGILLATIE. In old English law. Seal-
ed letters. The return of a sheriff was so called.
Fleta, lib. 2, c. 64, § 19.
LITERAL. According to language; following ex-
pression in words.
A literal construction of a document adheres closely toits words, without making differences for extrinsic circum-
g.
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stances; a literal performance of a condition is one which
complies exactly with its terms.
LITERAL CONTRACT. In Roman law. A spe-
cies of written contract, in which the formal act
by which an obligation was superinduced on the
convention was an entry of the sum due, where
it should be specifically ascertained, on the debit
side of a ledger. Maine, Anc. Law, 3n. A con-
tract, the whole of the evidence of which is re-
duced to writing, and binds the party who sub-
scribed it, although he has received no considera-
tion. Lec. El. Dr. Rom. § 887.
LITERAL PROOF. In the civil law. Written evi-
dence.
LITERARY. Pertaining to polite learning; con-
nected with the study or use of books and writ-
ings.
The word 'literary," having no legal signification, is to
be taken in its ordinary and usual meaning. We speak of
literary persons as learned, erudite; of literary property,
es the productions of ripe scholars, or, at least, of profes-
sional writers; of literary institutions, as those where the
positive sciences are taught, or persons eminent for learn-
ing associate, for purposes connected with their profes-
sions. This we think the popular meaning of the word;
and that it would not be properly used as descriptive of a
school for the instruction of youth. Indianapolis v. Mc-
Lean, 8 Ind. 332.
LITERARY COMPOSITION. In copyright law.
An original result of mental production, developed
in a series of written or printed words, arranged
for an intelligent purpose, in an orderly succes-
sion of expressive combinations. Keene v. Wheat-
ley, 14 Fed.Cas. 192; Woolsey v. Judd, 4 Duer (N.
Y.) 396.
LITERARY PROPERTY. May be described as
the right which entitles an author and his assigns
to all the use and profit of his composition, to
which no independent right is, through any act
or omission on his or their part, vested in another
person. 9 Amer. Law Reg. 44. And see Keene v.
Wheatley, 14 Fed.Cas. 192; Palmer v. De Witt, 32
N.Y.Super.Ct. 552.
A distinction is to be taken between "literary property"
(which is the natural, common-law right a person has in
the form of written expression to which he has, by labor
and skill, reduced his thoughts) and "copyright," (which
is a statutory monopoly, above and beyond natural prop:-
erty, conferred upon an author to encourage and reward a
dedication of his literary property to the public.) Abbott.
LITERATE. In English ecclesiastical law. One
who qualifies himself for holy orders by present-
ing himself as a person accomplished in classical
learning, etc., not as a graduate of Oxford, Cam-
bridge, etc.
LITERATURA. "Ad literaturam ponere" means
to put children to school.
This liberty was anciently denied to those parents who
were servile tenants, without the lord's consent. The pro-
hibition against the education of sons arose from the fear
that the son, being bred to letters, might enter into holy
orders, and so stop or divert the services which he might
otherwise do as heir to his father. Paroch.Antiq. 401.
LITERIS OBLIGATIO. In Roman law. The con-
tract of nomen, which was constituted by writing,
(scripture,)
It was of two kinds, viz. : (1) A re in personam, when a
transaction was transferred from the daybook (adver-saria) into the ledger (codex) in the form of a debt under
the name or heading of the purchaser or debtor, (nomen;)and (2) a persona in personam, where a debt already
standing under one nomen or heading was transferred in
the usual course of novatio from that nomen to anotherand substituted nomen. By reason of this transferring,
these obligations were called "nomina transcriptia." No
money was, in fact, paid to constitute the contract. If ever
money was paid, then the nomen was arcarium, (i. e., areal contract, re contractus,) and not a nomen proprium.Brown.
LITIGANT. A party to a lawsuit; one engaged
in litigation; usually spoken of active parties, not
of nominal ones.
LITIGARE. Lat. To litigate; to carry on a suit,
(litem agere,) either as plaintiff or defendant; to
claim or dispute by action; to test or try the
validity of a claim by action.
LITIGATE. To dispute or contend in form of law;
to carry on a suit.
To bring into or engage in litigation, the act of carrying
on a suit in a law court, a judicial contest; hence, any
controversy that must be decided upon evidence. In re
Loudenslager's Estate, N.J.Prerog., 13 N.J.Eq. 418, 167 A.
194, 195.
LITIGATION. Contest in a court of justice for
the purpose of enforcing a right. Summerour v.
Fortson, 174 Ga. 862, 164 S.E. 809; a judicial con-
test, a judicial controversy, a suit at law. In re
Loudenslager's Estate, Prerog., 113 N.J.Eq. 418,
167 A. 194; civil actions. Sunshine Mining Co. v.
Carver, D.C.Idaho, 34 F.Supp. 274, 280.
LITIGIOSITY. In Scotch law. The pendency of a
suit; it is a tacit legal prohibition of alienation,
to the disappointment of an action, or of diligence,
the direct object of which is to obtain possession,
or to acquire the property of a particular subject.
The effect of it is analogous to that of inhibition.
Bell.
LITIGIOSO. Span. Litigious; the subject of liti-
gation; a term applied to property which is the
subject of dispute in a pending suit. White v. Gay,
1 Tex. 388.
LITIGIOUS. That which is the subject of a suit
or action; that which is contested in a court of
justice. In another sense, "litigious" signifies fond
of litigation; prone to engage in suits.
LITIGIOUS CHURCH. In ecclesiastical law, a
church is said to be litigious where two presenta-
tions are offered to the bishop upon the same
avoidance. Jenk. Cent. 11.
LITIGIOUS RIGHT. In the civil law. A right
which cannot be exercised without undergoing a
lawsuit. Civil Code La. art. 3556, par. 1g.
A right, to be considered "litigious" under Louisiana
law, must be in litigation at time of the sale thereof, and
ceases to be litigious if at time of the sale judgment has
become final. Caucier v. Crichton, C.C.A.La., 147 F.2d
430, 435.
LITIS AZESTIMATIO. Lat. The measure of dam-
ages.
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LITIS CONTESTATIO. Lat.
Admiralty Practice. The general issue. 2 Browne,
Civil & Adm. Law, 358, and note.
Civil and Canon Law. Contestation of suit; the
process of contesting a suit by the opposing state-
ments of the respective parties; the process of
coming to an issue; the attainment of an issue;
the issue itself.
Ecclesiastical Courts. The general answer made
by the defendant, in which he denies the matter
charged against him in the libel. Hallifax, Civil
Law, b. 3, c. 11, no. 9.
LITIS DENUNCIATIO. Lat. In the civil law.
The process by which a purchaser of property,
who is sued for its possession or recovery by a
third person, falls back upon his vendor's covenant
of warranty, by giving the latter notice of the ac-
tion and demanding his aid in defending it. See
Mackeld. Rom. Law, § 403.
LITIS DOMINIUM. Lat. In the civil law. Own-
ership, control, or direction of a suit. A fiction of
law by which the employment of an attorney or
proctor (procurator) in a suit was authorized or
justified, he being supposed to become, by the
appointment of his principal (dominus) or client,
the dominus litis. Heinecc. Elem. lib. 4, tit. 10, §§
1246, 1247.
LITIS NOMEN OMNEM ACTIONEM SIGNIFI-
CAT, SIVE IN REM, SIVE IN PERSONAM SIT.
Co. Litt. 292. A lawsuit signifies every action,
whether it be in rem or in personam.
LITISPENDENCE. An obsolete term for the time
during which a lawsuit is going on.
LITISPENDENCIA. In Spanish law. Litispend-
ency. The condition of a suit pending in a court
of justice.
LITRE. Fr. A measure of capacity in the metric
system, being a cubic decimetre, equal to 61.022
cubic inches, or 2.113 American pints, or 1.76 Eng-
lish pints. Webster.
LITTLE MORE THAN. About. Pierce v. Lefort,
197 La. 1, 200 So. 801, 803.
LITTORAL. Belonging to the shore, as of seas
and great lakes. Webster.
Corresponding to riparian proprietors on a stream or
small pond are littoral proprietors on a sea or lake. But
"riparian" is also used coextensively with "littoral." Com-
monwealth v. Alger, 7 Cush., Mass., 94. See Boston v.
Lecraw, 17 How. 426, 15 L.Ed. 118. One whose lands abuts
on lake is a "littoral owner". Darling v. Christensen, 166
Or. 17, 109 P.2d 585, 592; Peck v. Alfred Olsen Const. Co.,
216 Iowa 519, 245 N.W. 131, 137, 89 A.L.R. 1147.
LITURA. Lat. In the civil law. An obliteration
or blot in a will or other instrument. Dig. 28, 4,
1, 1.
LITUS. In Civil law. The bank of a stream or
shore of the sea; the coast.
In old European law.- A kind of servant; one
who surrendered himself into another's power.
Spelman.
LITUS EST QUOUSQUE MAXIMUS FLUCTUS
A MARI PERVENIT. The shore is where the
highest wave from the sea has reached. Dig. 50,
16, 96. Ang. Tide-Waters, 67.
LITUS MARIS. The sea-shore.
"It is certain that that which the sea overflows, either at
high spring tides or at extraordinary tides, comes not, as
to this purpose, under the denomination of `litus marls,'
and consequently the king's title is not of that large
extent, but only to land that is usually overflowed at ordi-
nary tides. That, therefore, I call the 'shore' that is
between the common high-water and low-water mark, and
no more." Hale de Jure Mar. c. 4.
LITVINOV ASSIGNMENT. An assignment to the
United States as an incident to its recognition of
the Union of Soviet Socialist Republics as the
de jure government of Russia, of the Soviet gov-
ernment's claims against American nationals, as
clarified by subsequent correspondence between
officials of the two countries. United States v.
Pink, N.Y., 62 S.Ct. 552, 562, 315 U.S. 203, 86 L.Ed.
796.
LIVE. In possession of all those limbs and facul-
ties by which life is enjoyed and not mere animal
existence. In re Healy's Will, 8 N.Y.S.2d 394, 399,
255 App.Div. 361. To live in a place, is to reside
there, to abide there, to have one's home. Leroux
v. Industrial Accident Commission of California,
140 Cal.App. 569, 35 P.2d 624, 626.
LIVE AND COHABIT TOGETHER AS HUSBAND
AND WIFE. As applied to common-law marriag-
es, means a living together, claiming to be mar-
ried, in the relationship of husband and wife.
Drummond v. Benson, Tex.Civ.App., 133 S.W.2d
154, 159.
LIVE OIL. Oil that has gas in it. Crow v. Con-
tinental Oil Co., C.C.A.Tex., 100 F.2d 292, 293.
LIVE STOCK. Domestic animals used or raised
on a farm. Boland v. Cecil, 65 Cal.App.2d 832, 150
P.2d 819, 822.
The term in its generic sense includes all domestic ani-
mals. Meader v. Unemployment Compensation Division of
Industrial Accident Board, 64 Idaho 716, 136 P.2d 984, 987.
It includes fur bearing animals raised in captivity. Fromm
Bros. v. United States, D.C.Wis., 35 F.Supp. 145, 147.
LIVE-STOCK INSURANCE. See Insurance.
LIVE STORAGE. As applied to storage of auto-
mobiles in garages, "dead storage" is where cars
not in use are deposited or put away, sometimes
for the season, and "live storage" is the storage
of cars in active daily use. Hogan v. O'Brien,
206 N.Y.S. 831, 832, 123 Misc. 865, affirmed 208 N.Y.
S. 477, 212 App.Div. 193.
"The extent of responsibility of a garage keeper for
cars put in his garage sometimes depends on whether they
are in 'dead storage' or 'live storage'. * * * In some
jurisdictions where, according to the general custom of
the patrons of a garage, their cars kept at the garage
can be taken out and returned at will, day or night, the
garage keeper will be liable for a loss caused by a failure
to exercise ordinary care for the protection of such cars,
notwithstanding he may not know that the specific car
has been returned." Blashfleld, Cyc. of Automobile Law
and Prac., Perm. Ed., § 5023.
LIVELODE. Maintenance; support.
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LIVERY
LIVERY. 1. In English law. Delivery of posses-
sion of their lands to the king's tenants in capite
or tenants by knight's service.
2. A writ which may be sued out by a ward in
chivalry, on reaching his majority, to obtain de-
livery of the possession of his lands out of the
hands of the guardian. 2 Bl.Comm. 68.
3. A particular dress or garb appropriate or
peculiar to certain persons, as the members of a
guild, or, more particularly, the servants of a
nobleman or gentleman.
4. The privilege of a particular guild or com-
pany of persons, the members thereof being call-
ed "livery-men."
5. A contract of hiring of work-beasts, particu-
larly horses, to the use of the hirer. It is seldom
used alone in this sense, but appears in the com-
pound, "livery-stable."
6. Feeding, stabling, and care of horses for pay;
boarding; as, to keep one's horses at livery, the
keeping of horses, and hence of vehicles, boats,
etc., in readiness to be hired; the state of being
so kept. Biehler v. Great American Indemnity Co.,
127 N.J.L. 114, 21 A.2d 225, 226.
LIVERY CONVEYANCE. A vehicle used indis-
criminately in conveying the public, without limita-
tion to certain persons or particular occasions or
without being governed by special terms. Elliott
v. Behner, 150 Kan. 876, 96 P.2d 852, 857.
LIVERY IN CHIVALRY. In feudal law. The de-
livery of the lands of a ward in chivalry out of
the guardian's hands, upon the heir's attaining
the requisite age,—twenty-one for males, sixteen
for females. 2 Bl.Comm. 68.
LIVERY OF SEISIN. The appropriate ceremony,
at common law, for transferring the corporal
possession of lands or tenements by a grantor to
his grantee.
It was livery in deed where the parties went together
upon the land, and there a twig, clod, key, or other symbol
was delivered in the name of the whole. Livery in law
was where the same ceremony was performed, not upon
the land itself, but in sight of it. 2 Bl.Comm. 315, 316;
Micheau v. Crawford, 8 N.J.Law, 108; Northern Pac. R.
Co. v. Cannon, C.C.Mont., 46 F. 232.
LIVERY OFFICE. An office appointed for the de-
livery of lands.
LIVERY STABLE. A place where horses are
groomed, fed, and hired, and where vehicles are
let. Williams v. Garignes, 30 La.Ann. 1095;
Grimes v. State, 82 Tex.Cr.R. 512, 200 S.W. 378,
379.
LIVERY STABLE KEEPER. One whose business
it is to keep horses for hire or to let, or to keep,
feed, or board horses for others. Kittanning
Borough v. Montgomery, 5 Pa.Super. 198.
LIVERYMAN. A member of some company in
the city of London; also called a "freeman."
LIVES IN BEING. As used in rule against per-
. petuities, means any lives in being at any time
future interest is created, regardless of personal
interest therein. In re Friday's Estate, 313 Pa.
328, 170 A. 123, 125, 91 A.L.R. 766.
LIVING. Existing, surviving, or continuing in op-
eration. In re Lydig's Estate, 260 N.Y.S. 147, 145
Misc. 321.
Also means to abide, to dwell, to reside and literally
signifies the pecuniary resources by means of which one
exists. Leroux v. Industrial Accident Commission of Cali-
fornia, 140 Cal.App. 569, 35 P.2d 624, 626.
A child in the mother's womb is living, In re Holthau-
sen's Will, 26 N.Y.S.2d 140, 143, 175 Misc. 1022. A child
born two months after death of father was a "living
child" at death of father. Barnett v. Pinkston, 238 Ala.
327, 191 So. 371, 374. Person born within three months
after testator's death held "living," at that time. In rd
Abbe's Estate, 245 N.Y.S. 291, 293, 138 Misc. 210. Under
testamentary gift, life tenant's daughter or survivor, word.
"survivor" is synonymous with word "living." In re Dyck-
man's Will, 245 N.Y.S. 631, 635,•138 Misc. 253.
LIVING APART. To live in a separate abode.
McDaniel v. McDaniel, 292 Ky. 56, 165 S.W.2d 966,
967.
LIVING AT TIME OF ANOTHER'S DEATH. Re-
maining in life after such other person's death.
Sabit v. Safe Deposit & Trust Co. of Baltimore,
184 Md. 24, 40 A.2d 231, 238.
LIVING IN ADULTERY. An act of intercourse
between parties and a continuation of such rela-
tion or an intention or agreement that it be con-
tinued. Brown v. State, 31 Ala.App. 233, 14 So.2d
596, 597.
LIVING IN OPEN AND NOTORIOUS ADUL-
TERY. To constitute, parties must dwell together
openly and notoriously as if conjugal relation ex-
isted between them. People v. Potter, 319 Ill.App.
409, 49 N.E.2d 307, 309.
The parties must reside together in face of society as if
conjugal relations existed between them, and fact of their
so living and that they are not husband and wife must be
known in community in which they reside. Mathis v.
State, 60 Okl.Cr. 58, 61 P.2d 261, 267.
LIVING SEPARATE AND APART. Exists where
the spouses have come to a parting of the ways
and have no present intention of resuming marital
relations and taking up life together under the
same roof, not where they are residing temporar-
ily in different places for economic or social rea-
sons. Woodall v. Commissioner of Internal Rev-
enue, C.C.A.9, 105 F.2d 474, 477.
LIVING TOGETHER. As respects court's right
to allow suit money to wife in divorce action,
means dwelling together in same house, eating at
same table, the two parties holding themselves out
to world and conducting themselves toward each
other as husband and wife. Lipp v. Lipp, Mo.App.,
117 S.W.2d 364, 365, 366.
As used in adultery, statute means that parties must
dwell or reside together in same habitation as a common
or joint residing place. Polous v. State, 117 Tex.Cr.R. 1,
36 S.W.2d 754, 755.
As used in compensation law the words were intended to
cover cases where no break in marriage relation existed,
and therefore physical dwelling together is not necessary.
Harris v. Louisiana Oil Refining Corporation, 127 So. 40,
42, 13 La.App. 416; Berg v. Industrial Commission, 236
Wis. 172, 294 N.W. 506, 509.
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LIVING WITH HUSBAND. Means to dwell, to
reside, to make one's abiding place or home with
him, and may also mean to cohabit, and means
living together as husband and wife in ordinary
acceptation of words in common understanding,
maintaining a home and living together in same
household or actually cohabiting under conditions
which would be regarded as constituting a family
relation. McPadden v. Morris, 126 Conn. 654, 13
A.2d 679, 680.
Wife continuing to occupy homestead premises after hus-
band abandoned, Reymond v. Louisiana Trust & Savings
Bank, 177 La. 409, 148 So. 663, 667. Wife involuntarily con-
fined in asylum for insane. Harrison v. Cargill Commis-
sion Co., 126 Neb. 185, 252 N.W. 899.
LIVRE TOURNOIS. A coin used in France before
the Revolution. It is to be computed in the ad
valorem duty on goods, etc., at eighteen and a half
cents. Act Cong. March 2, 1798, § 61; 1 Story,
Laws, 629.
LLOYD'S. An association in the city of London,
originally for the transaction of marine insurance,
the members of which underwrite one another's
policies. See Durbrow v. Eppens, 65 N.J.L. 10, 46
A. 585.
LLOYD'S BONDS. The name of a class of evi-
dences of debt, used in England; being acknowl-
edgments, by a borrowing company made under its
seal, of a debt incurred and actually due by the
company to a contractor or other person for work
done, goods supplied, or otherwise, as the case may
be, with. a covenant for payment of the principal
and interest at a future time. Brown.
LLOYD'S INSURANCE. Insurers are such as in-
dividuals and not as a corporate insurance com-
pany and the liability for loss is several and not
joint. Jones v. Hollywood Style Shop, Tex.Civ.
App., 62 S.W.2d 167. The "Lloyds' Plan," contem-
plates individual liability of the several under-
writers. Harris v. Prince, 132 Tex. 231, 121 S.W.
2d 983, 986.
LOAD LINE. The depth to which a ship will
sink in salt water when loaded.
A design, painted on each side of vessel, intended as a
guide to determine safe loading depth under various con-
ditions. The Indien, C.C.A.Cal., 71 F.2d 752, 759.
Every British ship must be marked on each side amid-
ships with a loadline indicating the maximum loadline in
salt water, to which it is lawful to load the ship. Sailing
ships under eighty tons, fishing ships, and pleasure yachts,
also ships employed exclusively in trading in any river or
inland water wholly or partly in any British possession,
and tugs and passenger steamers plying in smooth water
or in excursion limits are excepted. This mark is called
Plimsoll's Mark or Line, from Samuel Plimsoll, by whose
efforts the passage of an act of parliament to prevent over-
loading was procured. The law applies to foreign ships
while within any port of the United Kingdom, other than
such as come into any such port to which they are not
bound and for any purpose other than embarking or land-
ing passengers or taking in or discharging cargo or taking
in bunker coal. There must also be a mark on each side
amidships indicating the position of each deck above
water.
LOADING. The act of putting a load on or in;
as to load a beast of burden, a car or a vessel;
hence, to charge as with a load or burden. Amer-
scan Oil & Supply Co. v. United States Casualty
Co., 19 N.J.Misc. 7, 18 A.2d 257, 259.
The difference between gross and net premiums
on policies. Commissioner of Insurance v. Massa-
chusetts Accident Co., 314 Mass. 558, 50 N.E.2d
801, 809; Metropolitan Life Ins. Co. v. Rouillard,
92 N.H. 16, 24 A.2d 264, 266; Magers v. North-
western Mut. Life Ins. Co., 348 Mo. 96, 152 S.W.2d
148, 150.
LOADMANAGE. The pay to loadsmen; that is,
persons who sail or row before ships, in barks or
small vessels, with instruments for towing the ship
and directing her course, in order that she may
escape the dangers in her way. Poth. Des Avar-
ies, no. 137.
LOAF. To spend time in idleness, to lounge or
loiter about or along. City of Olathe v. Lauck,
156 Kan. 637, 135 P.2d 549, 55L
LOAN. A lending, In re Lalla's Estate, 362 Ill.
621, 1 N.E.2d 50, 53.
Also means advance of money with an absolute promise
to repay, Bankers Mortgage Co. v. Commissioner of Inter-
nal Revenue, C.C.A.Tex., 142 F.2d 130, 131. Bailment with-
out reward, consisting of the delivery of an article by the
owner to another person, to be used by the latter gratui-
tously, and returned either in specie or in kind. A sum of
money confided to another. Nichols v. Fearson, 7 Pet. 109,
8 L. Ed. 623; Booth v. Terrell, 16 Ga. 20, 25; a borrowing of
money or other personal property by a person who prom-
ises to return it, State v. Moltzner, 141 Or. 355, 17 P.2d
555, 556; contract whereby one delivers money to another
who agrees to return equivalent sum. Easter Oil Corpora-
tion v. Strauss, Tex.Civ.App., 52 S.W.2d 336, 340; Shaw v.
McShane, Tex.Com.App., 50 S.W.2d 278, 282; debts arising
from borrowing of money, Lawrie v. Miller, Tex.Com.App.,
45 S.W.2d 172, 173; delivery by one party and receipt by
another party of money on agreement, express or implied,
to repay money with or without interest, Parsons v. Fox.
179 Ga. 605, 176 S.E. 642; 0. A. Graybeal Co. v. Cook, 111
Cal.App. 518, 295 P. 1088, 1092; deposit of money by a cus-
tomer with banker, Gimbel Bros. v. White, 10 N.Y.S.2d
666, 667, 256 App.Div. 439; deposit on time certificates,
Carroll v. Eblen, 178 Tenn. 146, 156 S.W.2d 412, 415; pay-
ment of money by one to another to be repaid some future
day, In re Arbuckle's Estate, 324 Pa. 501, 188 A. 758, 761;
that which one lends or borrows, In re Lalla's Estate, 362
Ill. 621, 1 N.E.2d 50, 53; transaction creating customary
relation of borrower and lender, Bannock County v. Citi-
zens' Bank & Trust Co., 53 Idaho 159, 22 P.2d 674. Trans-
action wherein one party transfers to the other a sum of
money which that other agrees to repay absolutely. Yezek
v. Delaware, L. & W. R. Co., 28 N.Y.S.2d 35, 36, 176 Misc.
553.
The four elements of a "loan" are, a principal sum, a
placing of the sum with a safe borrower, an agreement
that interest is to be paid, and a recognition by receiver of
money of his liability for return of the principal amount
with accrued interest. McLendon v. Johnson, 71 Ga.App.
424, 31 S.E.2d 89, 92.
LOAN ASSOCIATION. See Building and Loan
Association.
LOAN CERTIFICATES. Certificates issued by a
clearing-house to the associated banks to the
amount of seventy-five per cent. of the value of
the collaterals deposited by the borrowing banks
with the loan committee of the clearing-house.
Anderson.
LOAN FOR CONSUMPTION. A loan for con-
sumption is where the article is not to be returned
in specie, but in kind. This is a sale and not a
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bailment. Code Ga. 1882, § 2125 (Civ. Code 1910,
§ 3516).
The loan for consumption is an agreement by which one
person delivers to another a certain quantity of things
which are consumed by the use, under the obligation, by
the borrower, to return to him as much of the same kind
and quality. Civ.Code La. art. 2910.
LOAN FOR EXCHANGE. A loan for exchange is
a contract by which one delivers personal prop-
erty to another, and the latter agrees to return to
the lender a similar thing at a future time, with-
out reward for its use. Civ. Code Cal. § 1902.
LOAN FOR USE. Occurs where a chattel is to be
used by bailee without reward and then specifical-
ly returned to bailor. Slack v. Bryan, 299 Ky. 132,
184 S.W.2d 873, 876.
The loan for use is an agreement by which a person
delivers a thing to another, to use it according to its nat-
ural destination, or according to the agreement, under the
obligation on the part of the borrower, to return it after
he shall have done using it. Civ.Code La. art. 2893. A
loan for use is a contract by which one gives to another
the temporary possession and use of personal property, and
the latter agrees to return the same thing to him at a
future time, without reward for its use. Civ.Code Cal. §
1884. A loan for use is the gratuitous grant of an article
to another for use, to be returned in specie, and may be
either for a certain time or indefinitely, and at the will of
the grantor. Code Ga.1882, § 2126 (Civ.Code 1910, § 3517).
Loan for use (called "commodatum" in the civil law) dif-
fers from a loan for consumption, (called "mutuum" in
the civil law,) in this : that the commodatum must be spe-
cifically returned; the mutuum is to be returned in kind.
In the case of a commodatum, the property in the thing
remains in the lender ; in a mutuum, the property passes
to the borrower. Bouvier.
LOAN, GRATUITOUS, (or COMMODATE.) A
class of bailment which is called "commodatum"
in the Roman law, and is denominated by Sir
William Jones a "loan for use," (prét-a-usage,) to
distinguish it from "mutuum," a loan for con-
sumption. It is the gratuitous lending of an ar-
ticle to the borrower for his own use. Wharton.
LOAN SOCIETIES. In English law. A kind of
club formed for the purpose of advancing money
on loan to the industrial classes.
LOANED EMPLOYEE. Whether an employee
should be regarded as a "loaned employee" in the
service of a special employer, or whether he
should be regarded as remaining in the service of
his general employer, depends upon in whose work
the employee was engaged at the time of injury.
Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.
W.2d 498, 499, 500.
Under the "loaned servant doctrine", when one lends
his servant to another for a particular employment, serv-
ant, for anything done in that employment, must be dealt
with as servant of one to whom he is lent. Blair v. Dur-
ham, C.C.A.Tenn., 134 F.2d 729, 732.
Under the "loaned servant" rule, a loaned servant does
not become the servant of the borrower unless the bor-
rower has exclusive control over him for the period cov-
ered. Walter v. Everett School Dist. No. 24, 195 Wash. 45,
79 P.2d 689.
LOBBYING. "Lobbying" is defined to be any per-
sonal solicitation of a member of a legislative
body during a session thereof, by private inter-
view, or letter or message, or other means and
appliances not addressed solely to the judgment,
to favor or oppose, or to vote for or against, any
bill, resolution, report, or claim pending, or to be
introduced by either branch thereof, by any per-
son who misrepresents the nature of his interest
in the matter to such member, or who is employed
for a consideration by a person or corporation
interested in the passage or defeat of such bill,
resolution, report, or claim, for the purpose of
procuring the passage or defeat thereof. But this
does not include such services as drafting petitions,
bills, or resolutions, attending to the taking of
testimony, collecting facts, preparing arguments
and memorials, and submitting them orally or in
writing to a committee or member of the legisla-
ture, and other services of like character, intended
to reach the reason of legislators. Code Ga. 1882,
§ 4486. And see Colusa County v. Welch, 122 Cal.
428, 55 P. 248; Houlton v. Nichol, 93 Wis. 393, 67
N.W. 715, 33 L.R.A. 166, 57 Am.St.Rep. 928.
LOBBYING CONTRACT. A contract to secure the
passage of legislation by any other means than
the use of reason and presentation of facts, mak-
ing arguments and submitting them orally or in
writing. Ewing v. National Airport Corporation,
C.C.A.Va., 115 F.2d 859, 860, 861.
LOBBYIST. One who makes it a business to pro-
cure the passage of bills pending before a legisla-
tive body.
One "who makes it a business to 'see' members
and procure, by persuasion, importunity, or the
use of inducements, the passing of bills, public
as well as private, which involve gain to the pro-
moters." 1 Bryce, Am. Corn. 156.
L'OBLIGATION SANS CAUSE, OU SUR UNE
FAUSSE CAUSE, OU SUR CAUSE ILLICITE, NE
PEUT AVOIR AUCUN EFFET. An obligation
without consideration, or upon a false considera-
tion, (which fails,) or upon unlawful consideration,
cannot have any effect. Code Civil, 3, 4; Chit.
Cont. (11th Am. Ed.) 25, note.
LOCAL. Relating to place, expressive of place;
belonging or confined to a particular place. Dis-
tinguished from "general," "personal," and "tran-
sitory."
As to local "Allegiance," "Custom," "Govern-
ment," "Taxes," and "Venue," see those titles.
LOCAL ACT. See Local Law.
LOCAL ACT OF PARLIAMENT. An act which
has for its object the interest of some particular
locality as the formation of a road, the alteration
of the course of a river, the formation of a public
market in a particular district, etc. Brown.
LOCAL ACTIONS. Embrace all actions in which
the subject or thing sought to be recovered is in
its nature local. Hesselbrock v. Burlington Coun-
ty, 111 N.J.L. 177, 168 A. 45, 46. If action could
only have arisen in one place, then it is a "local
action." Employers' Casualty Co. v. Ponton, Tex.
Civ.App., 41 S.W.2d 147, 149; Barnett v. National
Surety Corporation, 195 Miss. 528, 15 So.2d 775,
776, 777.
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Actions are "local" when the transactions on which they
are based could not occur except in some particular place.
Bunting v. Henderson, 220 N.C. 194, 16 S.E.2d 836, 837.
"Local," within statute providing where suits of local
nature must be brought, is fixed place or determinate zone
identified with given region. Hills v. F. S. Harmon & Co.,
D.C.Wash., 56 F.2d 662, 663.
One wherein all principal facts on which it is founded
are of a local nature; as where possession of land is to be
recovered, or damages for an actual trespass, or for waste
affecting land, because in such case the cause of action
relates to some particular locality, which usually also con-
stitutes the venue of the action. Miller & Lux v. Rickey,
C.C.Nev., 127 F. 577; Crook v. Pitcher, 61 Md. 513. Where
subject-matter is situated in a county other than one in
which the parties reside and the primary and principal
relief sought relates to such subject-matter; such action
must be brought and tried in the county where such sub-
ject-matter is situated. State v. District Court of Blue
Earth County, 150 Mind. 512, 185 N.W. 953. And where the
cause in its nature could only have arisen in one place.
Taylor v. Sommers Bros. Match Co., 35 Idaho, 30, 204 P.
472, 474. See transitory actions, post, in this note.
LOCAL AFFAIRS. The "local affairs" over which
regulation, management and control are delegated
to cities are affairs within the jurisdiction of the
city by the law of its being. Robia Holding Cor-
poration v. Walker, 239 N.Y.S. 659, 662, 136 Misc.
358.
LOCAL AGENT. An agent at a given place or
within a definite district. Sharp & Dohme v. Way-
bourne, Tex.Civ.App., 74 S.W.2d 413.
An agent may be a general agent as to his powers, al-
though he represents the company only in a particular lo-
cality or within a limited territory, and in the latter aspect
is called a "local agent", Prudential Ins. Co. of America v.
Jenkins, 290 Ky. 802, 162 S.W.2d 791, 795. An agent placed
in charge of corporation's local business for purpose of
winding it up, National Hardware & Stove Co. v. Walters,
Tex.Civ.App., 58 S.W.2d 146, 147; an employee whose duties
were to keep books, to write sales letters, to sell merchan-
dise, to audit claims, and, in absence of president, to look
after office details of business, State Trust & Savings Bank
v. Ferguson Seed Farms, Inc., Tex.Civ.App., 80 S.W.2d 417,
418; one appointed to act as the representative of a corpo-
ration and transact its business generally (or business of
a particular character) at a given place or within a defined
district, Moore v. Freeman's Nat. Bank, 92 N.C. 590, 594;
Western Cottage Piano & Organ Co. v. Anderson, 97 Tex.
432, 79 S.W. 517; one who represents corporation in pro-
motion of business for which it was incorporated, in county
in which suit is filed, National Hardware & Stove Co. V.
Walters, Tex.Civ.App., 58 S.W.2d 146; one who stands in
shoes of corporation in relation to particular matters com-
mitted to his care and represents corporation in its busi-
ness in either a general or limited capacity. McDonald
Service Co. v. Peoples Nat. Bank of Rock Hill, S.C., 218 N.
C. 533, 11 S.E.2d 556, 558, 559. A "local agent" to receive
and collect money means an agent residing either perma-
nently or temporarily within the state for purpose of his
agency. McDonald Service Co. v. Peoples Nat. Bank of
Rock Hill, S.C., 218 N.C. 533, 11 S.E.2d 556, 558.
City manager is the "managing or local agent of city".
Grimes v. City of Lexington, 216 N.C. 735, 6 S.E.2d 505,
506.
LOCAL AND SPECIAL LEGISLATION. Applies
to special or particular places or special and par-
ticular person, and is distinguished from statute
general in operation and relating to classes of per-
sons or subjects. Madison County Board of Edu-
cation v. Smith, 250 Ky. 495, 63 S.W.2d 620.
LOCAL ASSESSMENT. A charge in the nature
of tax, levied to pay the whole or part of the cost
of local improvements, and assessed upon the
various parcels of property specially benefited
thereby. Gould v. Baltimore, 59 Md. 380.
LOCAL CHATTEL. A thing is local that is fixed
to the freehold. Kitchin, 180.
LOCAL CONCERN. An activity is of "local con-
cern" if it is exercised by the municipality in its
proprietary capacity. Luhrs v. City of Phoenix,
52 Ariz. 438, 83 P.2d 283, 285.
LOCAL COURTS. Courts whose jurisdiction is
limited to a particular territory or district. The
expression often signifies the courts of the state,
in opposition to the United States courts. People
v. Porter, 90 N.Y. 75.
LOCAL FREIGHT. Freight shipped from either
terminus of a railroad to a way station, or vice
versa, or from one way station to another; that is,
over a part of the road only. Mobile & M. R. Co.
v. Steiner, 61 Ala. 579.
LOCAL FREIGHT TRAIN. One which stops at
any siding or depot and loads or unloads freight
as differentiated from one which takes and leaves
freight only at certain stops. Arizona Eastern R.
Co. v. State, 29 Ariz. 446, 242 P. 870, 871; Oregon,
C. & E. Ry. Co. v. Blackmer, 154 Or. 388, 59 P.2d
694, 695.
LOCAL IMPROVEMENT. A public improvement
made in a particular locality, by which the real
property adjoining or near such locality is special-
ly benefited. Floyd v. Parker Water & Sewer
Sub-District, 203 S.C. 276, 17 S.E.2d 223, 227; Brag-
don v. City of Muskogee, 133 Okl. 224, 271 P. 1006,
1008.
LOCAL IMPROVEMENT ASSESSMENT. Acharge placed upon lands within a given district
to pay the benefits which the respective parcels
of land derive from the improvement. Wells v.
Union Oil Co. of California, 25 Cal.App.2d 165, 76
P.2d 696, 697. An assessment for construction of
improvement. University Nat. Co. v. Grays Har-
bor County, 12 Wash.2d 549, 122 P.2d 501, 502.
LOCAL IMPROVEMENT BONDS. Bonds issued
to pay for improvements. State ex rel. Kuehl v.
City of Seattle, 195 Wash. 110, 79 P.2d 974, 979.
LOCAL INFLUENCE. As a statutory ground for
the removal of a cause from a state court to a fed-
eral court, this means influence enjoyed and wield-
ed by the plaintiff, as a resident of the place where
the suit is brought, in consequence of his wealth,
prominence, political importance, business or social
relations, or otherwise, such as might affect the
minds of the court or jury and prevent the defend-
ant from winning the case, even though the merits
should be with him. See Neale v. Foster, C.C.Or.,
31 F. 53.
LOCAL LAW. A law which is special as to place.
Leuthold v. Brandjord, 100 Mont. 96, 47 P.2d 41,
45; City of Mt. Olive v. Braje, 366 Ill. 132, 7 N.E.
2d 851, 853.
One applicable exclusively to special or particular places,
or special and particular persons, Stevenson v. Hardin, 238
Ky. 600, 38 S.W.2d 462, 463; State v. First State Bank of
Jud, 52 N.D. 231, 202 N.W. 391, 399; one applicable only to
a particular part of the legislative jurisdiction, Handy v.
Johnson, D.C.Tex., 51 F.2d 809, 812; one limited in its
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operation to certain districts of the territorial jurisdiction
of the law-making power or to certain individual persons
or corporations, one which pertains to a particular place or
to a definite region or portion of space or is restricted to
one place. State v. Johnson, 170 N.C. 685, 86 S.E. 788, 792;
State v. Daniel, 87 Fla. 270, 99 So. 804, 809; one operating
only in a limited territory or specified locality, State v.
Dixon, 215 N. C. 161, 1 S.E.2d 521, 522; Douglas v. Foley,
36 N.Y.S.2d 657, 660, 178 Misc. 767; one operating only in
a part of domain of state, Tribbett v. Village of Marcellus,
294 Mich. 607, 293 N.W. 872, 877; Punke v. Village of Elli-
ott, 364 Ill. 604, 5 N.E.2d 389, 393; one that affects private
persons, private property, and private , or local private
interests, State ex rel. Porterie v. Smith, 184 La. 263, 166
So. 72, 79, 80, 81; one that in fact, if not in form, is
directed only to a specific spot, City of Fort Worth v. Bob-
bitt, 121 Tex. 14, 36 S.W.2d 470, 472; one that rests on
false or deficient classifications, its vice being that it does
not embrace all the class to which it is naturally related.
State ex rel. Atty. Gen. v. Lee, 193 Ark. 270, 99 S.W.2d 835,
'837; School Dist. No. 85 of Kay County v. School Dist. No.
71 of Kay County, 135 Okl. 270, 276 P. 186, 189; one which
'embraces less than the entire class of persons or places to
whose condition such legislation would be necessary or
appropriate, State v. Clement, 188 La. 923, 178 So. 493, 496;
one which in its subjects relates to but a portion of the
people of the state, or to their property, and may not,
eithe- in its subject, operation, or immediate and neces-
sary results, affect the people of the state, or their prop-
erty in general, State v. Clement, 188 La.' 923, 178 So. 493,
496; one which relates to particular locality, Iowa Motor
Vehicle Ass'n v. Board of Railroad Com'rs, 207 Iowa 461,
221 N.W. 364; one which relates to particular persons or
things or to particular persons or things of a class or
which operates on or over a portion of a class instead of
all of the class, In re Annexation of Reno Quartermaster
Depot Military Reservation to Independent School Dist.
No. 34, Canadian County, Okl., 180 Okl. 274, 69 P.2d 659,
662; one whose operation is confined within territorial
limits, other than those of the whole state or any properly
constituted class or locality therein. State v. Kailas, 97
Utah 492, 94 P.2d 414, 420; Ravitz v. Steurele, 257 Ky.
108, 77 S.W.2d 360, 364.
Act is not "local" because it operates in only one place
'or on particular class of persons or things, provided there
is reasonable basis for legislative classification. People v.
City of Chicago, 349 III. 304, 182 N.E. 419, 430.
Exemption of one or more counties from law makes law.
"local." Leonard v. Luxora-Little River Road Mainte-
nance Dist. No. 1, 187 Ark. 599, 61 S.W.2d 70.
Municipal ordinances and regulations are "local laws".
Orme v. Atlas Gas & Oil Co., 217 Minn. 27, 13 N.W.2d 757,
761.
There must be a reasonable basis for a classification of
counties by population, else an act affecting counties
within a certain range in population will be declared a
"local act". Waybright v. Duval County, 142 Fla. 875, 196
So. 430, 432.
LOCAL OPTION. "Prohibition" in a particular
locality. Keeling v. Coker, 294 Ky. 199, 171 S.W.2d
'263, 267. Prohibition of the sale and traffic in
alcoholic beverages. Neff v. Moberly, 296 Ky. 319,
177 S.W.2d 78.
A privilege accorded by the legislature of a state to the
several counties or other districts of the state to determine,
each for itself, by popular vote, whether or not licenses
should be issued for the sale of intoxicating liquors within
such districts. See Wilson v. State, 35 Ark. 416; State v.
Brown, 19 Fla. 598.
LOCAL PREJUDICE. The "prejudice or local in-
fluence" which will warrant the removal of a cause
from a state court to a federal court may be either
prejudice and influence existing against the party
seeking such removal or existing in favor of his
adversary. Neale v. Foster, C.C.Or., 31 F. 53.
LOCAL RULES. Those promulgated in view of
local physical conditions in the state, the charac-
ter of the people, their peculiar customs, usages,
and beliefs. Farmers Bank & Trust Co. v. Public
Service Co. of Indiana, D.C.Ky., 13 F.Supp. 548,
552.
LOCAL STATUTE. See Local Law.
LOCALITY. Is a definite region in any part of
space; geographical position. Warnock v. Kraft,
30 Cal.App.2d 1, 85 P.2d 505, 506. "Place", "vi-
cinity", "neighborhood" and "community". Con-
ley v. Valley Motor Transit Co., C.C.A.Ohio, 139
F.2d 692, 693; Lukens Steel Co. v. Perkins, 107 F.
2d 627, 631, 70 App.D.C. 354.
Word "localities" in act prohibiting carrier from giving
undue preference to any locality or subjecting it to undue
prejudice denotes origin or destination of traffic and ship-
ping, producing, and consuming areas affected by carrier's
rates and practices, Texas & P. Ry. Co. v. U. S., Tex., 53
S.Ct. 768, 289 U.S. 627. 77 L.Ed. 1410.
In Scotch law. This name is given to a life-rent created
in marriage contracts in favor of the wife, instead of leav-
ing her to her legal life-rent of tierce. 1 Bell, Comm. 55.
LOCALITY OF A LAW SUIT. Place where judi-
cial authority may be exercised. Graver Tank
& Manufacturing Corporation v. New England
Terminal Co., C.C.A.R.I., 125 F.2d 71, 73; Neirbo
Co. v. Bethlehem Shipbuilding Corporation, N. Y.,
60 S.Ct. 153, 154, 308 U.S. 165, 84 L.Ed. 167.
LOCARE. To let for hire; to deliver or bail a
thing for a certain reward or compensation. Bract.
fol. 62.
LOCARI1UM. In old European law. The price of
letting; money paid for the hire of a thing; rent.
Spelman.
LOCATAIRE. In French law. A lessee, tenant,
or renter.
LOCATARIUS. Lat. A depositee.
LOCATE. Discovery by survey. Guardian Trust
Co. of Houston, Tex., v. Jefferson Lake Oil Co.,
C.C.A.La., 85 F.2d 465, 467.
Also means to ascertain place in which something be-
longs, Town of Underhill v. Town of Jericho, 101 Vt. 41,
140 A. 156, 157. To ascertain and fix the position of some-
thing, the place of which was before uncertain or not
manifest, as to locate the calls in a deed. To decide upon
the place or direction to be occupied by something not yet
in being, as to locate a road; or to define location or lim-
its, Delaware, L. & W. R. Co. v. Chiara, C.C.A.N.J., 95
F.2d 663, 668; to designate site or place, Union Pac. R. Co.
v. City of Los Angeles, 53 Cal.App.2d 825, 128 P.2d 408,
410; Board of Sup'rs of Marshall County v. Stephenson,
160 Miss. 372, 134 So. 142, 144.
LOCATED. A bank is "located" in the place speci-
fied in its organization certificate. Raiola v. Los
Angeles First Nat. Trust & Savings Bank, 233
N.Y.S. 301, 304, 133 Misc. 630.
Commissioner of Agriculture and Markets or any head of
bureau is "located" not only in principal office, but in
authorized branch office, Dairy Sealed v. Ten Eyck, 288
N.Y.S. 641, 649, 159 Misc. 716; as used in articles of asso-
ciation of corporation, refers only to place where governing
power of corporation is exercised, Carter v. Spring Perch
Co., 113 Conn. 636, 155 A. 832, 834; as used in gift tax law
provision that no tax shall be imposed upon certain proper-
ty when located without the state, refers to situs and not to
mere physical presence, Van Dyke v. Wisconsin Tax Com-
mission, 235 Wis. 128, 292 N.W. 313, 318; as used in special
appearance of corporation, meant the place where defend-
ant had its place of business, Thomas v. Hector Const. Co.,
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216 Minn. 207, 12 N.W.2d 769; as used in statute imposing
inheritance tax on devises to certain organizations "locat-
ed" without the state or to such organizations "located"
within the state if devise is for use without the state, is
used in sense of domicile or residence. San Jacinto Nat.
Bank v. Sheppard, Tex.Civ.App., 125 S.W.2d 715, 716, 717.
LOCATIO. Lat. In the civil law. Letting for
hire.
The term is also used by text-writers upon the law of
bailment at common law. Hanes v. Shapiro & Smith, 168
N.C. 24, 84 S.E. 33, 35. In Scotch law it is translated
"location." Bell.
LOCATIO—CONDUCTIO. In the civil law. A
compound word used to denote the contract of
bailment for hire, expressing the action of both
parties, viz., a letting by the one and a hiring
by the other. 2 Kent, Comm. 586, note; Story,
Bailm. § 368; Coggs v. Bernard, 2 Ld. Raym. 913.
LOCATIO CUSTODLE. A letting to keep; a
bailment or deposit of goods for hire. Story,
Bailm. § 442.
According to the classificAtion of bailments at civil law,
a "locatio custodim" is the hiring of care and services to
be bestowed on the thing delivered. Hanes v. Shapiro &
Smith, 168 N.C. 24, 84 S.E. 33, 35.
LOCATIO OPERIS. In the civil law. The con-
tract of hiring work, i. e., labor and services.
It is a contract by which one of the parties gives a cer-
tain work to be performed by the other, who binds him-
self to do it for the price agreed between them, which he
who gives the work to be done promises to pay to the
other for doing it. Poth.Louage, no. 392; Zell v. Dunkle,
27 Atl. 38, 156 Pa. 353.
LOCATIO OPERIS FACIENDI. A letting out of
work to be done; a bailment of a thing for the
purpose of having some work and labor or care
and pains bestowed on it for a pecuniary recom-
pense. 2 Kent, Corn. 586, 588; Story, Bailm. §§
370, 421, 422; Hanes v. Shapiro & Smith, 168 N.C.
24, 84 S.E. 33, 35. Metal Package Corporation of
New York v. Osborn, 145 Md. 371, 125 A. 752, 754.
LOCATIO OPERIS MERCIUM VEHENDARUM.
A letting of work to be done in the carrying of
goods; a contract of bailment by which goods are
delivered to a person to carry for hire. 2 Kent,
Comm. 597; Story, Bailm. §§ 370, 457; Hanes v.
Shapiro & Smith, 168 N.C. 24, 84 S.E. 33, 35.
LOCATIO REL A letting of a thing to hire. 2
Kent, Comm. 586.
The bailment or letting of a thing to be used by tile
bailee for a compensation to be paid by him. Story, Bailm.
§ 370; Hanes v. Shapiro & Smith, 168 N.C. 24, 84 S.E.
33, 35.
LOCATION. Site or place. Board of Sup'rs of
Marshall County v. Stephenson, 160 Miss. 372, 134
So. 142, 144.
The "location" of administration of a trust means place
of performance of active duties of trustee. In re Risher's
Will, 227 Wis. 104, 277 N.W. 160, 164, 115 A.L.R. 790;
Campbell v. Albers, 313 I1l.App. 152, 39 N.E.2d 672, 676.
American land law. The designation of the boundaries of
a particular piece of land, either upon record or on the
land itself. Mosby v. Carland, 1 Bibb, Ky., 84. The find-
ing and marking out the bounds of a particular tract of
land, upon the land itself, in conformity to a certain
description contained in an entry, grant, map, etc. ; such
LOCKMAN
description consisting in what are termed "locative calls."
Cunningham v. Browning, 1 Bland, Md., 329.
Corporations. Place where governing power of corporation
is exercised. Carter v. Spring Perch Co., 113 Conn. 636,
155 A. 832, 834.
Mining law. Continuous possession of mining claim for
five years before adverse rights exist is equivalent to "loca-
tion." Dalton v. Clark, 129 Cal.App. 136, 18 P.2d 752, 754.
The act of appropriating a "mining claim" (parcel of
land containing precious metal in its soil or rock) accord-
ing to certain established rules. It usually consists in plac-
ing on the ground, in a conspicuous position, a notice set-
ting forth the name of the locator, the fact that it is thus
taken or located, with the requisite description of the
extent and boundaries of the parcel. St. Louis Smelting,
etc., Co. v. Kemp, 104 U.S. 649, 26 L.Ed. 875; Producers'
Oil Co. v. Hanszen, 132 La. 691, 61 So. 754, 759; Cole v.
Ralph, 252 U.S. 286, 40 S.Ct. 321, 326, 64 L. Ed. 567.
In a secondary sense, the mining claim covered by a
single act of appropriation or location.
The act or series of acts whereby the boundaries of the
claim are marked, etc., but it confers no right in the
absence of discovery, both being essential to a valid claim.
United States v. Mobley, D.C.Ca1., 45 F.Supp. 407, 410.
To constitute a valid "location" of a lode of quartz, "dis-
covery" of a vein or lode of quartz is necessary. Dalton
v. Clark, 129 Cal.App. 136, 18 P.2d 752, 754.
Scotch law. A contract by which the temporary use of a
subject, or the work or service of a person, is given for an
ascertained hire. 1 Bell, Comm. 255.
Street railways. A location, except on private premises, is
in the nature of a privilege or permit to use the public
ways, Boston Elevated Ry. Co. v. Commonwealth, 310
Mass. 528, 39 N.E.2d 87, 99. A "location" on private lands
means a location in the nature of an "easement" or of
ownership thereof with permission from public authorities
to construct and maintain railway. Boston Elevated Ry.
Co. v. Commonwealth, 310 Mass. 528, 39 N.E.2d 87, 99.
LOCATIVE CALLS. In a deed, patent, or other
instrument containing a description of land, loca-
tive calls are specific calls, descriptions, or marks
of location, referring to landmarks, physical ob-
jects, or other points by which the land can be
exactly located and identified.
In harmonizing conflicting calls in a deed or survey of
public lands, courts will ascertain which calls are locative
and which are merely directory, and conform the lines to
the locative calls; "directory calls" being those which
merely direct the neighborhood where the different calls
may be found, whereas "locative calls" are those which
serve to flx boundaries. Cates v. Reynolds, 143 Tenn. 667,
228 S. W. 695, 696.
LOCATOR.
American land law. One who locates land, or
intends or is entitled to locate. See Location.
Civil and Scotch law. A letter; one who lets;
he who, being the owner of a thing, lets it out to
another for hire or compensation. Coggs v. Bern-
ard, 2 Ld. Raym. 913.
LOCATUM. A hiring. See Bailment.
LOCKED. Iron-safe clause providing that safe
be kept securely "locked" required merely that
safe door be securely closed so as to preserve fire-
proof quality of safe, regardless whether combina-
tion lock was set. British General Ins. Co., Lim-
ited, of London, England v. Boone, Tex.Civ.App.,
67 S.W.2d 353.
LOCKMAN. An officer in the Isle of Man, to exe-
cute the orders of the governor, much like our
under-sheriff. Wharton.
Black's Law Dictionary Revised 4th Ed.-69
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LOCKOUT
LOCKOUT. A cessation of the furnishing of work
to employees in an effort to get for the employer
more desirable terms. Jeffery-DeWitt Insulator
Co. v. National Labor Relations Board, C.C.A.4, 91
F.2d 134, 137; Sandoval v. Industrial Commission,
110 Colo. 108, 130 P.2d 930, 935; Barnes v. Hall,
285 Ky. 160, 146 S.W.2d 929, 936; The act of lock-
ing out; refusal of an employer to furnish work
to employees, used as a means of coercion. Ag-
ostini v. State, 40 N.Y.S.2d 598, 605.
LOCK-UP HOUSE. A place used temporarily as
a prison.
LOCMAN. Fr. .In French marine law. A local
pilot whose business was to assist the pilot of the
vessel in guiding her course into a harbor, or
through a river or channel. Martin v. Farnsworth,
33 N.Y.Super.Ct. 260.
LOCO PARENTIS. See In Loco Parentis.
LOCOCESSION. The act of giving place:
LOCOMOTIVE. An engine constructed and used
for traction purposes on a railroad track. United
States v. Fort Worth & Denver City Ry. Co., D.C.
Tex., 21 F.Supp. 916, 917, 918.
Other definitions and examples are gasoline engine or
tractor used in yards for switching and frequently hauling
long line of cars. Hoffman v. New York, N. H. & H. R.
Co., C.C.A.N.Y., 74 F.2d 227, 232; locomotive crane used to
convey materials loaded on cars to scene of construction
work, United States v. Fort Worth & Denver City Ry. Co.,
D.C.Tex., 21 F.Supp. 916; motor engines generating and
driven by steam power. Libby v. New York, N. H. & H.
R. Co., 273 Mass. 522, 174 'N.E. 171, 174, 73 A.L.R. 101;
quasi public corporations and agencies engaged in serving
public in transportation of passengers and goods. Cain v.
Bowlby, C.C.A.N.M., 114 F.2d 519, 523; self-propelled
engine or vehicle, Smith v. Atchison, T. & S. F. Ry. Co.,
145 Kan. 615, 66 P.2d 562, 566; New York Cent. R. Co. v.
Public Utilities Commission, 121 Ohio St. 383, 169 N.E. 299,
300.
LOCULUS. In old records. A coffin; a purse.
LOCUM TENENS. Lat. Holding the place. A
deputy, substitute, lieutenant, or representative.
LOCUPLES. Lat. In the civil law. Able to re-
spond in an action; good for the amount which
the plaintiff might recover. Dig. 50, 16, 234, 1.
LOCUS. Lat. A place; the place where a thing
is done.
LOCUS CONTRACTUS. The place of a contract;
the place where a contract is made.
That place where last act which makes agreement
binding contract is performed. Sun Ins. Office, Limited,
of London v. Mallick, 160 Md. 71, 153 A. 35, 39.
LOCUS CONTRACTUS REGIT ACTUM. The
place of the contract governs the act. 2 Kent 458;
L.R. 1 Q.B. 119; Scudder v. Union Nat. Bank, 91
U.S. 406, 23 L.Ed. 245. See Lex Loci.
LOCUS CRIMINIS. The locality of a crime; the
place where a crime was committed.
LOCUS DELICTI. The place of the offense; the
place where an offense was committed. 2 Kent,
Comm. 109.
State where last event necessary to make actor liable
occurs. Hunter v. Derby Foods, C.C.A.N.Y., 110 F.2d 970,
972.
LOCUS IN QUO. The place in which. The place
in which the cause of action arose, or where any-
thing is alleged, in pleadings, to have been done.
The phrase is most frequently used in actions of
trespass quare clausum fregit.
LOCUS PARTITUS. In old English law. A place
divided.
A division made between two towns or counties to make
out in which the land or place in question lies. Fleta, lib.
4, c. 15, § 1; Cowell.
LOCUS PCENITENTLE. A place for repentance;
an opportunity for changing one's mind; an op-
portunity to undo what one has done (Pope v.
Safe Deposit & Trust Co., 163 Md. 239, 161 A. 404) ;
a chance to withdraw from a contemplated bar-
gain or contract before it results in a definite con-
tractual liability; a right to withdraw from an
incompleted transaction (Alford v. Henderson,
237 Ala. 27, 185 So. 368, 369). Also used of a
chance afforded to a person, by the circumstances,
of relinquishing the intention which he has formed
to commit a crime, before the perpetration there-
of.
LOCUS PRO SOLUTIONE REDITUS AUT PE-
CUNLZE SECUNDUM CONDITIONEM DIMIS-
SIONIS AUT OBLIGATIONIS EST STRICTE OB-
SERVANDUS. 4 Coke, 73. The place for the
payment of rent or money, according to the con-
dition of a lease or bond, is to be strictly observed.
LOCUS PUBLICUS. In the civil law. A public
place. Dig. 43, 8, 1; Id. 43, 8, 2, 3.
LOCUS REGIT ACTUM. In private international
law. The rule that, when a legal transaction com-
plies with the formalities required by the law of
the country where it is done, it is also valid in
the country where it is to be given effect, although
by the law of that country other formalities are
required. 8 Sa y . Syst. § 381; Westl. Priv. Int.
Law, 159.
LOCUS REI SIT1E. The place where a thing is
situated. In proceedings in rem, or the real ac-
tions of the civil law, the proper forum is the
locus rei sitce. The Jerusalem, 2 Gall. 191, 197,
Fed.Cas.No.7,293.
LOCUS SIGILLI. The place of the seal; the place
occupied by the seal of written instruments. Us-
ually abbreviated to "L. S."
LOCUS STANDI. A place of standing; standing
in court. A right of appearance in a court of
justice, or before a legislative body, on a given
question.
LODE. This term, as used in the legislation of
congress, is applicable to any zone or belt of min-
eralized rock lying within boundaries clearly sep-
arating it from the neighboring rock. It includes
all deposits of mineral matter found through a
mineralized zone or belt coming from the same
source, impressed with the same forms, and ap-
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LOGIC
pearing to have been created by the same pro-
cesses. Myers v. Lloyd, 4 Alaska, 263, 265; Inyo
Marble Co. v. Loundagin, 120 Cal.App. 298, 7 P.2d
1067.
A body of mineral-bearing rock lying within walls of
neighboring rock usually of a different kind, although
sometimes of the same kind, and extending longitudinally
between the walls in a continuous zone or belt. McMullin
v. Magnuson, 102 Colo. 230, 78 P.2d 964, 968, 970. A line or
aggregation of metal embedded in quartz or other rock in
place; the presence of metal in rock, Inyo Marble Co. v.
Loundagin, 120 Cal.App. 298, 7 P.2d 1067, 1072.
LODEMAN, or LOADSMAN. The pilot conducts
the ship up the river or into port; but the loads-
man is he that undertakes to bring a ship through
the haven, after being brought thither by the pilot,
to the quay or place of discharge. Jacob.
LODEMANAGE. The hire of a pilot for conduct-
ing a vessel from one place to another. Cowell.
LODGER. An occupant who has mere use with-
out actual or exclusive possession. Roberts v.
Casey, 36 Cal.App.2d, Supp. 767, 93 P.2d 654, 657,
658, 659; Coggins v. Gregorio, C.C.A.N.M., 97 F.
2d 948, 951; Marden v. Radford, 229 Mo.App. 789,
84 S.W.2d 947, 955, 957, 959.
A tenant, with the right of exclusive possession of a part
of a house, the landlord, by himself or an agent, retaining
general dominion over the house itself, Wansey v. Perkins,
7 Man. & G. 155; Pollock v. Landis, 36 Iowa, 652; one
obtaining room in residence hotel by special arrangement
with proprietor at fixed rate for permanent stay and hav-
ing merely use of room, Brams v. Briggs, 272 Mich. 38, 260
N.W. 785; one who has no interest in the realty but who
occupies part of a tenement which is under the control of
another, Edwards v. City of Los Angeles, 48 Cal.App.2d 62,
119 P.2d 370, 373; one who occupies hired apartment in
another's house; a tenant of part of another's house,
Smith v. Dorchester Hotel Co„ 145 Wash. 344, 259 P. 1085,
1086; Dewar v. Minneapolis Lodge, No. 44, B. P. 0. E., 155
Minn. 98, 192 N.W. 358, 359, 32 A.L.R. 1012; one who
occupies room or portion of tenement under control or in
occupancy of another and has no interest in real estate,
Stone v. City of Los Angeles, 124 Cal.App. 192, 299 P. 838,
841.
If proprietor retains to himself any supervision or con-
trol of premises of one who has taken room or rooms for
hire, or if possession of occupant is anything less than that
enjoyed by tenant or if relation between proprietor and
occupant possesses features inconsistent with that of land-
lord and tenant, occupant is a "lodger." Warden v. Rad-
ford, 229 Mo.App. 789, 84 S.W.2d 947, 955, 957, 959.
"Lodger" has been defined as a tenant of part of an-
other's house, one who for time being has his home at his
lodging place, one who has leave to inhabit another man's
house, one who inhabits portion of a house of which
another has general possession and custody, one who lives
at board or in a hired room or who has a bed in another's
house, one who lives in a hired room or rooms in house of
another, one who occupies hired apartments in another's
house. The term is also defined as a person who lives and
sleeps in a place, a person whose occupancy is a part of a
house and subordinate to and in some degree under the
control of a landlord or his representative. The term is
used to indicate a personal relationship of some one lod--
ing somewhere with somebody. Marden v. Radford, 229
Mo.App. 789, 84 S.W.2d 947, 955, 957, 959.
LODGING HOUSE. A house where lodgings are
let;  houses containing furnished apartments
which are let out by the week or by the month,
without meals, or with breakfast simply. Marden
v. Radford, 229 Mo.App. 789, 84 S.W.2d 947, 955.
LODGING PLACE. A place of rest for a night
or a residence for a time; a temporary habita-
tion. Marden v. Radford, 229 Mo.App. 789, 84 S.
W.2d 947, 955.
LODGINGS. Habitation in another's house; apart-
ments in another's house, furnished or unfur-
nished, occupied for habitation; the occupier be-
ing termed a "lodger."
LODS ET VENTES. In old French and Canadian
law. A fine payable by a roturier on every change
of ownership of his land; a mutation or aliena-
tion fine. Steph. Lect. 351.
LOGATING. An unlawful game mentioned in St.
33 Hen. VIII. c. 9.
LOG ROLLING. A mischievous legislative prac-
tice, of embracing in one bill several distinct mat-
ters, none of which, perhaps, could singly obtain
the assent of the legislature, and then procuring
its passage by a combination of the minorities in
favor of each of the measures into a majority that
will adopt them all. Walker v. Griffith, 60 Ala.
369; Corn. v. Barnet, 199 Pa. 161, 48 A. 976, 55 L.R.
A. 882; O'Leary v. Cook County, 28 Ill. 534; St.
Louis v. Tiefel, 42 Mo. 590.
Practice of including in one statute or constitutional
amendment more than one proposition, inducing voters to
vote for all, notwithstanding they might not have voted for
all if amendments or statutes had been submitted sepa-
rately. Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, 552, 94
A.L.R. 1502.
LOGBOOK. A ship's journal.
It contains a minute account of the ship's course, with a
short history of every occurrence during the voyage. 1
Marsh.Ins. 312.
The part of the logbook relating to transactions in the
harbor is termed the "harbor log;" that relating to what
happens at sea, the "sea log." Young, Naut.Dict
Official Logbook. A logbook in a certain form, and con-
taining certain specified entries required by 17 & 18 Via.
c. 104, §§ 280-282, to be kept by all British merchant ships,
except those exclusively engaged in the coasting trade.
LOGGING. Includes felling and preparation of
logs for transport, log assemblage, and main log
haul; it includes also production of large quanti-
ties of pulpwood, cross ties, poles, piling, mine
timbers, veneer logs, bolts and miscellaneous other
forms. Cherry River Boom & Lumber Co..v. Unit-
ed States, D.C.W.Va., 37 F.Supp. 887, 888, 889.
Cutting and hauling or dealing in or with logs,
Brasher v. Industrial Lumber Co., La.App., 165 So.
524, 526; felling trees, cutting them into logs, and
transporting them to mill or market, Middlebush-
er v. State Industrial Accident Commission, 147
Or. 459, 34 P.2d 325, 327.
Felling trees of merchantable size for lumber,
cutting them into suitable lengths and hauling
them to some point for manufacture or transporta-
tion; felling trees for subsequent use as stove-
wood. Peterson v. State Industrial Accident Com-
mission, 140 Or. 326, 12 P.2d 564, 565.
LOGIA. A small house, lodge, or cottage. Mon.
Angl. tom. 1, p. 400.
LOGIC. The science of reasoning, or of the_ op-
erations of the understanding which are subservi-
ent to the estimation of evidence. The term in-
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LOGICAL
cludes both the process itself of proceeding from
known truths to unknown, and all other intellec-
tual operations, in so far as auxiliary to this.
LOGICAL RELEVANCY. Existence of such a re-
lationship in logic between the fact of which evi-
dencels offered and a fact in issue that the exist-
ence of the former renders probable or improb-
able the existence of the latter. State v. Knox,
236 Iowa 499, 18 N.W.2d 716, 723.
LOGIUM. In old records. A lodge, hovel, or out-
house.
LOGOGRAPHUS. In Roman law. A public clerk,
register, or book-keeper; one who wrote or kept
books of accounts. Dig. 50, 4, 18, 10; Cod. 10, 69.
LOGS. Stems or trunks of trees cut into conven-
ient lengths for the purpose of being afterwards
manufactured into lumber of various kinds; not
including manufactured lumber of any sort, nor
timber which is squared or otherwise shaped for
use without further change in form. Kolloch v.
Parcher, 52 Wis. 393, 9 N.W. 67. And see Haynes
v. Hayward, 40 Me. 148; State v. Addington, 121
N.C. 538, 27 S.E. 988; Brasher v. Industrial Lum-
ber Co., La.App., 165 So. 524, 526.
As used in subcontract for clearing and grubbing high-
way right of way, meant merchantable logs, that is, logs
not less than nine inches by thirty-two feet. McBride v.
Callahan, 173 Wash. 609, 24 P.2d 105.
LOITER. To be dilatory; to be slow in move-
ment; to stand around or move slowly about;
to stand idly around; to spend time idly; to saunt-
er; to delay; to idle; to linger; to lag behind.
City of Columbus v. Aldrich, 69 Ohio App. 396, 42
N.E.2d 915, 917; State v. Jasmin, 105 Vt. 631, 168
A. 545, 546, Phillips v. Municipal Court of Los
Angeles, 24 Cal.App.2d 453, 75 P.2d 548, 549; City
of Olathe v. Lauck, 156 Kan. 637, 135 P.2d 549,
551; State v. Starr, 57 Ariz. 270, 113 P.2d 356, 357.
LOLLARDS. A body of primitive Wesleyans,
who assumed importance about the time of John
Wycliffe, (1360,) and were very successful in dis-
seminating evangelical truth; but, being impli-
cated (apparently against their will) in the in-
surrection of the villeins in 1381, the statute De
Hceretico Comburendo (2 Hen. IV. c. 15) was
passed against them, for their suppression. How-
ever, they were not suppressed, and their repre-
sentatives survive to the present day under var-
ious names and disguises. Brown.
LOMBARDIAN LAW. See Lex Longobardorum.
LOMBARDS. A name given to the merchants of
Italy, numbers of whom, during the twelfth and
thirteenth centuries, were established as mer-
chants and bankers in the principal cities of Eu-
rope.
LONDON LLOYDS. Voluntary association of
merchants, shipowners, underwriters, and brokers,
which writes no policies, but, when broker for one
wishing insurance posts particulars of risk, un-
derwriting members wishing to so subscribe name
and share of total that each wishes to take, and
policy is issued when total is reached containing
names of underwriters bound thereby and name of
attorney in fact who handles insurance affairs of
the group. Ell Dee Clothing Co. v. Marsh, 247 N.
Y. 392, 160 N.E. 651, 653.
LONDRES. L. Fr, London. Yearb. P. 1 Edw.
II. p. 4.
LONG. In various compound legal terms (see
infra) this word carries a meaning not essentially
different from its signification in the vernacular.
In the language of the stock exchange, a broker or spec-
ulator is said to be "long" on stock, or as to a particular
security, when he has in his possession or control an abun-
dant supply of it, or a supply exceeding the amount which
he has contracted to deliver, or, more particularly, when
he has bought a supply of such stock or other security for
future delivery, speculating on a considerable future
advance in the market price. See Kent v. Miltenberger, 13
Mo.App. 506; Corner. A trader is said to be "long" on
the market when he takes the full price risk, gains if the
market price goes up, and loses if it goes down. Valley
Waste Mills v. Page, C.C.A.Ga., 115 F.2d 466, 467.
As applied to an antenna, means a wire which is long in
relation to the wave length used. Mackay Radio & Tele-
graph Co. v. Radio Corporation of America, N.Y., 306 U.S.
86, 618, 59 S.Ct. 427, 430, 83 L.Ed. 506.
LONG ACCOUNT. An account involving numer-
ous separate items or charges, on one side or both,
or the statement of various complex transactions,
such as a court of equity will refer to a master or
commissioner or a court of law to a referee under
the codes of procedure. Druse v. Horter, 57 Wis.
644, 16 N.W. 14. Reed v. Young, 248 Mo. 606, 154
S.W. 766, 768, Fry v. Pomona Mills Inc., 206 N.C.
768, 175 S.E. 156.
For "Examination of a long account," see Exam-
ination.
LONG PARLIAMENT. The name usually given
to the parliament which met in November, 1640,
under Charles I., and was dissolved by Cromwell
on the 10th of April, 1653.
The name "Long Parliament" is, however, also given to
the parliament which met in 1661, after the restoration of
the monarchy, and was dissolved on the 30th of December,
1678. This latter parliament is sometimes called, by way
of distinction, the "long parliament of Charles II." Moz-
ley & Whiteley.
LONG QUINTO, THE. An expression used to de-
note part second of the year-book which gives re-
ports of cases in 5 Edw. IV.
LONG ROBE. A metaphorical expression desig-
nating the practice of profession of the law; as, in
the phrase "gentlemen of the long robe."
LONG TON. A measure of weight equivalent to
20 hundred-weight of 112 pounds each, or 2,240
pounds, as distinguished from the "short" ton of
2,000 pounds. See Rev.St.U.S. § 2951 (19 U.S.C.A.
§ 420).. But see Jones v. Giles, 10 Exch. 119, as to
an English custom of reckoning a ton of iron
"long weight" as 2,400 pounds.
LONG VACATION. The recess of the English
courts from August 10th to October 24th.
LONGA PATIENTIA TRAHITUR AD CONSEN.
SUM. Long sufferance is construed as consent.
Fleta, lib. 4, c. 26, § 4.
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LORD
LONGA POSSESSIO EST PACIS JUS. Long pos-
session is the law of peace. Branch, Princ.; Co.
Litt. 6.
LONGA POSSESSIO JUS PARIT. Long posses-
sion begets right. Fleta, lib. 3, c. 15, § 6.
LONGA POSSESSIO PARIT JUS POSSIDENDI,
ET TOLLIT ACTIONEM VERO DOMINO. Long
possession produces the right of possession, and
takes away from the true owner his action. Co.
Litt. 110b.
LONGEVITY PAY. Extra compensation for
longevity in actual service in the army or navy.
Thornley v. U. S., 18 Ct.C1. 111; Barton v. U. S.,
9 Sup.Ct. 285, 129 U.S. 249, 32 L.Ed. 663; U. S. v.
Alger, 14 Sup.Ct. 346, 151 U.S. 362, 38 L.Ed. 192;
U. S. v. Stahl, 14 Sup.Ct. 347, 151 U.S. 366, 38 L.Ed.
194.
LONGSHOREMAN. A laborer, such as a steve-
dore or loader, who works about wharves of a
seaport. Duke v. Helena-Glendale Ferry Co., 203
Ark. 865, 159 S.W.2d 74, 77, 139 A.L.R. 1404.
LONGUM TEMPUS ET LONGUS USUS QUI EX-
CEDIT MEMORIA HOMINUM SUFFICIT PRO
JURE. Co. Litt. 115a. Long time and long use,
exceeding the memory of men, suffices for right.
LOOK AND LISTEN. The requirement that a
man shall "look and listen" before crossing street
railroad track means only that he shall observe
and estimate with reasonable accuracy his distance
from the car and the speed of its oncoming, and
then make calculation and comparison of the time
it will take the car to come and the time it will
take to cross the track. Kansas City Public Serv-
ice Co. v. Knight, C.C.A.Kan., 116 F.2d 233, 234.
LOOKOUT. A person who is specially charged
with the duty of observing the lights, sounds, ech-
oes, or any obstruction to navigation, with the
thoroughness which the circumstances admit. The
Tillicum (D.C.) 217 F. 976, 978; The Wilbert L.
Smith (D.C.) 217 F. 981, 984.
A proper lookout on a vessel is some one in a favorable
position to see, stationed near enough to the helmsman to
communicate with him, and to receive communications
from him, and exclusively employed in watching the move-
ments of vessels which they are meeting or about to pass.
The Genesee Chief v. Fitzhugh, 12 How. 462, 13 L.Ed. 1058.
Proper "lookouts" are competent persons other than the
master and helmsman, properly stationed to look out, on
the forward part of the vessel. The Catalina, C.C.A.CaI.,
95 F.2d 283, 285.
LOPWOOD. A right in the inhabitants of a par-
ish within a manor, in England, to lop for fuel, at
certain periods of the year, the branches of trees
growing upon the waste lands of the manor.
Sweet.
LOQUELA. Lat. A colloquy; talk.
In old English law, this term denoted the oral alterca-
tions of the parties to a suit, which led to the issue, now
called the "pleadings." It also designated an "impar-lance," (q. v.,) both names evidently referring to the talk-ing together of the parties. Loquela sine die, a postpone-ment to an indefinite time.
LOQUENDUM UT VULGUS; SENTIENDUM UT
DOCTI. We must speak as the common . people;
we must think as the learned. 7 Coke, 11b.
This maxim expresses the rule that, when words are
used in a technical sense, they must be understood tech-
nically; otherwise, when they may be supposed to be used
in their ordinary acceptation.
LORD. A feudal superior or proprietor; 'one of
whom a fee or estate is held.
A title of honor or nobility belonging properly
to the degree of baron, but applied. also. to the
whole peerage, as in the expression "the house of
lords." 1 Bl. Comm. 396-400.
A title of office, as lord mayor, lord commis-
sioner, etc.
Law lords
See Law.
Lord advocate
The chief public prosecutor of Scotland. 2 Alis.Crim.
Pr. 84.
Lord and vassal
In the feudal system, the grantor, who retained the
dominion or ultimate property, was called the "lord," and
the grantee, who had only the use or possession, was called
the "vassal" or "feudatory."
Lord chief baron
The chief judge of the English court of exchequer, prior
to the, judicature acts.
Lord chief justice
See Justice.
Lord high chancellor
See Chancellor.
Lord high steward
In England, when a person is impeached, or when a peer
is tried on, indictment for treason or felony before the
house of lords, one of the lords, is appointed lord high
steward, and acts as speaker pro tempore. Sweet.
Lord high treasurer
An officer formerly existing in England, who had the
charge of the royal revenues and customs duties, and of
leasing the crown lands. His functions are now vested in
the lords commissioners of the treasury. Mozley & Whitley.
Lord in gross
In feudal law. He who is lord, not by reason of any
manor, but as the king in respect of his crown, etc. "Very
lord" is he who is immediate lord to his tenant; and "very
tenant," he who holds immediately of that lord. So that,
where there is lord paramount, lord mesne, and tenant, the
lord paramount is not very lord to the tenant. Wharton.
Lord justice clerk
The second judicial officer in Scotland.
Lord keeper
Originally another name for the lord chancellor. After
Henry II.'s reign they were sometimes divided, but now
there cannot .be a lord chancellor and lord keeper 'at the
same time, for by St. 5 Eliz. c. 18, they are declared to be
the same office. Com.Dig. "Chancery," B. 1.
Lord lieutenant
In English law. The viceroy of the crown in Ireland.
The principal military officer of a county, originally ap-
pointed for the purpose of mustering the inhabitants for
the defense of the country.
Lord mayor
The chief officer of the corporation of the city of London
is so called. The origin of the appellation of "lord," which
the mayor of London enjoys, is attributed to the fourth
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LORD
charter of Edward III., which conferred on that officer the
honor of having maces, the same as royal, carried before
him by the sergeants. Pull.Laws & Cust.Lond.
Lord mayor's court
In English law. This is a court of record, of law and
equity, and is the chief court of justice within the corpora-
tion of London. Theoretically the lord mayor and alder-
men are supposed to preside, but the recorder is in fact
the acting judge. It has jurisdiction of all personal and
mixed actions arising within the city and liberties without
regard to the amount in controversy. See 3 Steph.Comm.
449, note 1.
Lord of a manor
The grantee or owner of a manor.
Lord ordinary
The judge of the court of session in Scotland, who offi-
ciates for the time being as the judge of first instance.
Dari.Pr.Ct.Sess.
Lord paramount
A term. applied to the King of England as the chief
feudal proprietor, the theory of the feudal system being
that all lands in the realm were held mediately or imme-
diately from him. See De Peyster v. Michael, 6 N.Y. 495,
57 Am.Dec. 470; Opinion of Justices, 66 N.H. 629, 33 A.
1076:
Lord privy seal
Before the 30 Hen. VIII., was generally an ecclesiastic.
The office has since been usually conferred on temporal
peers above the degree of barons. He is appointed by let-
ters patent. The lord privy seal, receiving a warrant from
the signet office, issues the privy seal, which is an author-
ity to the lord chancellor to pass the great seal where the
nature of the grant requires it. But the privy seals for
money begin in the treasury, whence the first warrant
issues, countersigned by the lord treasurer. The lord privy
seal is a member of the cabinet council. Enc.Lond.
Lord warden of Cinque Ports
See Cinque Ports.
Lords appellants
Five. peers who for a time superseded Richard II. in his
government, and whom, after a brief control of the govern-
ment, he in turn superseded in 1397, and put the survivors
of them to death. Richard II.'s eighteen commissioners
(twelve peers and six commoners) took their place, as an
embryo privy council acting with full powers, during the
parliamentary recess. Brown.
Lords commissioners
In. English law. When a high public office in the state,
formerly executed by an individual, is put into commis-
sion, the, persons charged with the commission are called
"lords. commissioners," or sometimes "lords" or "commis-
sioners"- simply. Thus, we have, in lieu of the lord treas-
urer and lord high admiral of former times, the lords com-
missioners of the treasury, and the lords commissioners of
the admiralty; and, whenever the great seal is put into
commission, the persons charged with it are called "com-
missioners" or "lords commissioners" of the great seal.
Mozley & Whiteley.
Lord's day
A name sometimes given to Sunday. Co.Litt. 135.
Lords justices of appeal
In English law. The title of the ordinary judges of the
court of appeal, by Jud.Act 1877, § 4. Prior to the judica-
ture acts, there were two "lords justices of appeal in chan-
cery," to whom an appeal lay from a vice-chancellor, by
14 & 15 Via c. 83.
Lords marchers
Those noblemen who lived on the marches of Wales or
Scotland, who in times past had their laws and power of
life and death, like petty kings. Abolished by 27 Hen.
VIII. c. 26, and 6 Edw. VI. c. 10. Wharton.
Lords of appeal
Those members of the house of lords of whom at least
three must be present for the hearing and determination
of appeals. They are the lord chancellor, the lords of
appeal in ordinary, and such peers of parliament as hold,
or have held, high judicial offices, such as ex-chancellors
and judges of the superior courts in Great Britain and
Ireland. App.Jur. Act 1876, §§ 5, 25.
Lords of appeal in ordinary
These are appointed, with a salary of £6,000 a year, to
aid the house of lords in the hearing of appeals. They
rank as barons for life, but sit and vote in the house of
lords during the tenure of their office only. App.Jur. Act
1876, § 6.
Lords of erection
On the Reformation in Scotland, the king, as proprietor
of benefices formerly held by abbots and priors, gave them
out in temporal lordships to favorites, who were termed
"lords of erection." Wharton.
Lords of parliament
Those who have seats in the house of lords. During
bankruptcy, peers are disqualified from sitting or voting
in the house of lords. 34 & 35 Viet. c. 50.
Lords of regality
In Scotch law. Persons to whom rights of civil and
criminal jurisdiction were given by the crown.
Lords ordainers
Lords appointed in 1312, in the reign of Edward n., for
the control of the sovereign and the court party, and for
the general reform and better government of the country.
Brown.
Lords spiritual
The archbishops and bishops who have seats in the house
of lords.
Lords temporal
Those lay peers who have seats in the house of lords.
LORD CAMPBELL ACT. An act which fixes the
maximum amount recoverable for wrongful death.
LORDSHIP. In English law. Dominion, manor,
seigniory, domain; also a title of honor used to a
nobleman not being a duke.
It is also the customary titulary appellation of the
judges, and some other persons in authority and office.
LOSE. To bring to destruction; to ruin; to de-
stroy; to suffer the loss of; to be deprived of; to
part with, especially in an accidental or unfore-
seen manner; as to lose an eye. Logan v. John-
son, 218 N.C. 200, 10 S.E.2d 653, 655.
LOSE HIS LIFE. Die. Hershey v. Agnew, 83
Colo. 89, 262 P. 526, 528.
LOSS is a generic and relative term; it is not a
word of limited, hard and fast meaning. Boney
v. Central Mut. Ins. Co. of Chicago, 213 N.C. 470,
196 S.E. 837, 841; United Service Automobile Ass'n
v. Miles, 139 Tex. 138, 161 S.W.2d 1048, 1050.
It may mean act of losing, or the thing lost, Fidelity
Union Casualty Co. v. Wilkinson, Tex.Civ.App., 94 S.W.
2d 763, 766; United States v. City Nat. Bank of Duluth,
D.C.Minn., 31 F.Supp. 530, 534, 535; actual losses, Cheney
v. National Surety Corporation, 10 N.Y.S.2d 706, 256 App.
Div. 1041; N. L. R. B. v. Cowell Portland Cement Co., C.
C.A.9, 148 F.2d 237, 246; bad and uncollectible accounts,
Duke v. Cregan, 91 Colo. 120, 12 P.2d 354, 355; bereaved,
Lytle v. Southern Ry.-Carolina Division, 171 S.C. 221, 171
S.E. 42, 44, 90 A.L.R. 915; damage, Glinz v. State, 70 N.D.
776, 298 N.W. 238, 239; Wilbur v. U. S. ex rel. C. L. Wold
Co., 30 F.2d 871, 872, 58 App.D.C. 347; a decrease in value
of resources or increase in liabilities, Boney v. Central
Mut. Ins. Co. of Chicago, 213 N.C. 470, 196 S.E. 837, 841;
depletion or depreciation or destruction of value, Malley
v. American Indemnity Corporation, 297 Pa. 216, 146 A. 571,
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572; deprivation, Lytle v. Southern Ry.-Carolina Divi-
sion, 171 S.C. 221, 171 S.E. 42, 44, 90 A.L.R. 915; Smith V.
Federal Surety Co., 60 S.D. 100, 243 N.W. 664, 666; de-
struction, Malley v. American Indemnity Corporation, 297
Pa. 216, 146 A. 571, 572; Wells v. Thomas W. Garland,
Inc., Mo.App., 39 S.W.2d 409, 411; detriment, Fidelity
Union Casualty Co. v. Wilkinson, Tex.Civ.App., 94 S.W.2d
763, 766; United States v. City Nat. Bank of Duluth, D.C.
Minn., 31 F.Supp. 530, 534, 535; failure to keep that which
one has or thinks he has, First Nat. Bank & Trust Co. of
Port Chester v. New York Title Ins. Co., 12 N.Y.S.2d 703,
711, 171 Misc. 854; In re Gordon, 317 Pa. 161, 176 A. 494,
498; injury, United Service Automobile Ass'n v. Miles, 139
Tex. 138, 161 S.W.2d 1048; United States v. City Nat.
Bank of Duluth, D.C.Minn., 31 F.Supp. 530, 534, 535;
privation, United States v. City Nat. Bank of Duluth, D.
C.Minn., 31 F.Supp. 530, 534, 535; ruin, Logan v. Johnson,
218 N.C. 200, 10 S.E.2d 653, 655; shrinkage in value of es-
tate or property, Malley v. American Indemnity Corpora-
tion, 297 Pa. 216, 146 A. 571, 572; Boney v. Central Mut.
Ins. Co. of Chicago, 213 N.C. 470, 196 S.E. 837, 841; state
or fact of being lost or destroyed, Logan v. Johnson, 218
N.C. 200, 10 S.E.2d 653, 655; that which is gone and cannot
be recovered or that which is withheld or that of which a
party is dispossessed, Walker v. Thomas, 75 F.2d 667, 669, 64
App.D.C. 148; Smith v. Federal Surety Co., 60 S.D. 100,
243 N.W. 664, 666; unintentional parting with something
of value, Providence Journal Co. v. Broderick, C.C.A.R.I.,
104 F.2d 614, 616.
Loss provided against by bank deposit guarantee was
total and permanent loss of deposit. Wood v. Utter, 229
Mo.App. 309, 77 S.W.2d 832, 838.
Statute for payment of claims for "loss" on account of
fire from operation of railroads by United States was in-
tended for relief of all who suffered "loss" of whatsoever
nature, United States v. City Nat. Bank of Duluth, D.C.
Minn., 31 F.Supp. 530, 534, 535.
Compensation acts and compensation insurance
Amputation of foot held compensable as "loss of foot,"
Marshall v. Octavia J. Coal Mining Co., 252 Ky. 460, 67 S.
W.2d 697; claimant's eye or foot or the use of it is not
lost unless it is useless in any employment for which
claimant is fitted. Zellner v. Haddock Mining Co., 139 Pa.
Super. 16, 10 A.2d 918, 919; Novak v. State Workmen's
Ins. Fund, 113 Pa.Super. 555, 173 A. 827; Injury rendering
testicles useless for performance of normal functions is
compensable as "loss" thereof. Northwestern Barb Wire
Co. y. Industrial Commission, 353 Ill. 371, 187 N.E. 468, 469.
"Loss of an eye" and "total loss of vision of an eye"
indicate state or fact of loss of eye or total destruction of
vision as distinguished from partial loss of vision. Logan
v. Johnson, 218 N.C. 200, 10 S.E.2d 653, 655.
Loss of eye means destruction of sight to extent that no
vision useful in industry remains, Henderson v. Consumers
Power Co., 301 Mich. 564, 4 N.W.2d 10, 17; loss of physical
organ, State ex rel. Gilmore v. Industrial Commission of
Ohio, 127 Ohio St. 214, 187 N.E. 770, 771; loss of sight or
vision of eye, Powers v. Motor Wheel Corporation, 252 Mich.
639, 234 N.W. 122, 124, 73 A.L.R. 702; loss of use of eye for
work which claimant was accustomed to perform, Baugh
v. Glassell-Rogers Drilling Co., La.App., 190 So. 130, 132;
loss of vision which is subnormal due to prior injury or
natural defects, Hamilton v. P. E. Johnson & Sons, 224
Iowa 1097, 276 N.W. 841, 845; removal of a partially or tot-
ally sightless eye as result of accident, McCadden v. West
End Building & Loan Ass'n, 18 N.J.Misc. 395, 13 A.2d 665,
666.
Loss of more than one phalange of a thumb requires
merely loss of more of thumb than one phalange, Ciotti
v. Jarecki Mfg. Co., 128 Pa.Super. 233, 193 A. 323, 324.
Loss of use of arm means substantial and material im-
pairment of its use-in practicable performance of its func-
tions, Traders & General Ins. Co. v. Porter, Tex.Civ.App.,
124 S.W.2d 900, 903; loss was "sustained" within policy
agreeing to indemnify employer against "loss from liabili-
ty," where judgment was rendered against employer for
medical services, E. M. Cummings & Co. v. American Mut.
Liability Ins. Co., 262 N.Y.S. 611, 146 Misc. 621; Substan-
tial loss of phalange is essential for loss of first phalange
of thumb or any finger, Decicco v. John Morrell & Co., 152
Kan. 601, 106 P.2d 1053, 1056.
Earnings
"Loss of earnings" is synonymous with loss of profits.
Beyer v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 75
S.W.2d 642, 648.
Fidelity Bond
Deprivation or dispossession of money or property due to
dishonest, criminal, or fraudulent acts of officers, Smith v.
Federal Surety Co., 60 S.D. 100, 243 N.W. 664, 666; pecuni-
ary damage for which insurer may be liable, though ex-
tent may not be immediately ascertainable, Fletcher Sav-
ings & Trust Co. v. American Surety Co. of New York, 92
Ind.App. 651, 175 N.E. 247, 252; wrongful abstraction, will-
ful misapplication, or fraudulent or dishonest acts. Pacific
Coast Adjustment Bureau v. Indemnity Ins. Co. of North
America, 115 Cal.App. 583, 2 P.2d 218, 219.
Indemnity bond or contract
Condition in which insured would be subjected to claim
or demand, and not to adjudge liability, National City
Bank v. National Sec. Co., C.C.A.Tenn., 58 F.2d 7, 8; dep-
rivation or dispossession of money or property of bank
due to dishonored criminal or fraudulent acts of officers,
Fitchburg Say . Bank v. Massachusetts Bonding & Insurance
Co., 274 Mass. 135, 174 N.E. 324, 328, 74 A.L.R. 274; pay-
ment of legal liability caused by dishonest act of an em-
ployee was a "loss of money". Hooker v. New Amsterdam
Casualty Co., D.C.Ky., 33 F.Supp. 672, 673.
Insurance
Ascertained liability of insurer, Michel v. American Fire
& Casualty Co., C.C.A. Fla., 82 F.2d 583, 586; decrease in
value of resources or increase in liabilities, Goerss v. In-
demnity Co. of America, 223 Mo.App. 316, 3 S.W.2d 272,
275; depletion or depreciation or destruction or shrinkage
of value, Malley v. American Indemnity Corporation, 297
Pa. 216, 146 A. 571, 572; injury, damage, etc., to property
or persons injured; Miles v. United Services Automobile
Ass'n, Tex.Civ.App., 149 S.W.2d 233, 235, 236; injury or
damage sustained by insured in consequence of happening
of one or more of the accidents or misfortunes against
which insurer has undertaken to indemnify the insured, 1
Bouv.Inst. no. 1215; pecuniary injury resulting from the
occurrence of the contingency insured against, Ocean Ac-
cident & Guarantee Corporation v. Southwestern Bell Tele-
phone Co., C.C.A.Mo., 100 F.2d 441, 446; word "loss" im-
plies that property is no longer in existence. Littrell v. Al-
lemannia Fire Ins. Co. of Pittsburgh, Pa., 226 N.Y.S. 243,
244, 222 App. Div. 302.
Liability assumed and paid by insured under policy pro-
vision authorizing insured to provide injured person "im-
perative medical relief" held "loss". Employers' Liability
Assur. Corporation v. Manget Bros. Co., 45 Ga.App. 721,
165 S.E. 770, 773.
"Loss by fire" includes loss directly resulting from
ignition or burning or from bona fide efforts, Fogarty v.
Fidelity & Casualty Co., 122 Conn. 245, 188 A. 481, 483;
loss necessarily following from occurrence of fire to amount
of actual injury to subject of risk, Freed's, Inc., v. Ameri-
can Home Fire Assur. Co., 305 Mich. 89, 8 N.W.2d 923, 925.
It means a "hostile fire". Pacific Fire Ins. Co. v. C. C.
Anderson Co. of Nampa, D.C. Idaho, 47 F.Supp. 90, 91.
Loss by severance means loss of use due to substantial
severance, King v. Metropolitan Life Ins. Co., 20 Tenn.App.
246, 97 S.W.2d 651, 654; Loss from liability is loss which
arises when liability becomes fixed, Cormier v. Hudson,
284 Mass. 231, 187 N.E. 625, 627; Boney v. Central Mut.
Ins. Co. of Chicago, 213 N.C. 470, 196 S.E. 837, 842.
"Loss of eye" means loss of use for any practical pur-
pose, Order of United Commercial Travelers of America v.
Knorr, C.C.A.Kan., 112 F.2d 679, 682; loss of member or
loss of an entire member means destruction of usefulness
of member or entire member for purposes to which in its
normal condition it is susceptible of application, in ab-
sence of more specific definition, Molnor v. Commercial
Casualty Ins. Co. 114 W.Va. 402, 171 S.E. 894, 896; Bowl-
ing v. Life Ins.
Co., 
of Virginia, 39 Ohio App. 491, 177 N.E.
531, 532; loss of use of hand means substantial and ma-
terial impairment of use in practical performance of its
function, E. K. Local Ins. Co. No. 1 of Seymour v. Lilly,
Tex.Civ.App., 1 S.W.2d 490, 492; loss of use of member is
equivalent to loss of member, Continental Casualty Co. v.
Linn, 10 S.W.2d 1079, 1082, 226 Ky. 328; Noel v. Conti-
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LOSS
nental Casualty Co., 138 Kan. 136, 23 P.2d 610; loss of
vision to extent that one cannot perceive and distinguish
objects is "loss of sight", Locomotive Engineers' Mut.
Life & Accident Ins. Co. v. Meeks, 157 Miss. 97, 127 So.
699, 701; loss under indemnity policy limiting liability to
amount paid by carrier in respect of stolen merchandise
could not occur until carrier paid shipper for merchandise.
Savin Exp. Co. v. Hanover Fire Ins. Co., 132 Conn. 181, 43
A.2d 69, 70; provision limiting liability for loss of foot to
"loss by severance" refers to manner rather than to ex-
tent of injury. Brittain v. Prudential Ins. Co. of America,
29 Ala.App. 57, 191 So. 794, 799.
To constitute "loss or damage by fire" existence of ac-
tual fire, which becomes uncontrollable or breaks out from
where it was intended to be and becomes a hostile ele-
ment, is sufficient. Princess Garment Co. v. Fireman's
Fund Ins. Co. of San Francisco, Cal., C.C.A.Ohio, 115 F.2d
380, 382; Coryell v. Old Colony Ins. Co., 118 Neb. 303, 229
N.W. 326, 328, 68 A.L.R. 222.
Revenue Acts
Difference between cost of assets and the sale price, Weil
v. State, 237 Ala. 293, 186 So. 467, 469; failure to keep that
which one has, A. Giurlani & Bro. v. Commissioner of In-
ternal Revenue, C.C.A.9, 119 F.2d 852, 857, 858; loss means
actual loss, Brandon v. State Revenue Commission, 54 Ga.
App. 62, 186 S.E. 872, 874.
Losses deductible are those occasioned by casualties,
Buffalo Union Furnace Co. v. Helvering, C.C.A.2, 72 F.2d
399, 402; physical losses by fire, flood or other like causes
which are not covered by insurance. W. F. Young, Inc. v.
Commissioner of Internal Revenue, C.C.A.1, 120 F.2d 159,
166; First Nat. Bank of Sharon v. Heiner, D.C.Pa., 2 F.
Supp. 960, 961; Brown v. United States, D.C.Pa., 19 F.
Supp. 825, 827; unintentional parting with something of
value. A. Giurlani & Bro. v. Commissioner of Internal
Revenue, C.C.A.9, 119 F.2d 852, 857, 858; McDonald v.
Commissioner of Internal Revenue, C.C.A.3, 139- F.2d 400,
401, 402.
Time
"Loss of time" as used in connection with damages re-
coverable for personal injuries means "loss of earnings."
Sinclair Refining Co. v. Tompkins, C.C.A.Miss., 117 F.2d
596, 598.
As to "Actual Loss," "Constructive Loss," "Di-
rect Loss," "Partial Loss," and "Total Loss," see
those titles. As to "Loss of Consortium," see Con-
sortium. As to "Salvage Loss," see Salvage.
LOST. An article is "lost" when the owner has
lost the possession or custody of it, involuntarily
and by any means, but more particularly by acci-
dent or his own negligence or forgetfulness, and
when he is ignorant of its whereabouts or cannot
recover it by a ordinarily diligent search. See
In re O'Neil, 39 N.Y.S.2d 82, 179 Misc. 455; Belote
v. State, 36 Miss. 120, 72 Am.Dec. 163; Hoagland
v. Amusement Co., 170 Mo. 335, 70 S.W. 878, 94
Am.St.Rep. 740.
Involuntary change of location or inability to find, State
v. Brewster, 72 N.D. 409, 7 N.W.2d 742, 744. See, also,
Lost Property.
As applied to ships and vessels, the term means "lost
at sea," and a vessel lost is one that has totally gone from
the owners against their will, so that they know nothing
of it, whether it still exists or not, or one which they know
is no longer within their use and control, either in con-
sequence of capture by enemies or pirates, or an unknown
foundering, or sinking by a known storm, or collision, or
destruction by shipwreck. Bennett v. Garlock, 10 Hun
(N.Y.) 338; Collard v. Eddy, 17 Mo. 355; Insurance Co. v.
Gossler, 7 Fed.Cas. 406.
LOST CORNER. See Corner.
LOST OR NOT LOST. A phrase sometimes insert-
ed in policies of marine insurance.
It signifies that the contract is meant to relate back to
the beginning of a voyage now in progress, or to some
other antecedent time, and to be valid and effectual even
if, at the moment of executing the policy, the vessel should
have already perished by some of the perils insured
against, provided that neither party has knowledge of that
fact or any advantage over the other in the way of superior
means of information. See Hooper v. Robinson, 98 U.S.
537, 25 L.Ed. 219; Insurance Co. v. Folsom, 18 Wall. 251,
21 L.Ed. 827.
LOST PAPERS. Papers which have been so mis-
laid that they cannot be found after diligent
search.
LOST PROPERTY. Property which the owner
has involuntarily parted with and does not know
where to find or recover it, not including property
which he has intentionally concealed or deposited
in a secret place for safe-keeping. See Pritchett
v. State, 2 Sneed (Tenn.) 288, 62 Am.Dec. 468;
State v. Cummings, 33 Conn. 260, 89 Am.Dec. 208;
Danielson v. Roberts, 44 Or. 108, 74 Pac. 913, 65
L.R.A. 526, 102 Am.St.Rep. 627. But see: Foster
v. Fidelity Safe Deposit Co., 264 Mo. 89, 174 S.W.
376, 377, L.R.A. 1916A, 655, Ann.Cas.1917D, 798;
State v. Courtsol, 89 Conn. 564, 94 A. 973, 975, L.R.
A. 1916A, 465.
Goods are "lost" only when possession has been casual-
ly  and involuntarily parted with, so that mind has no im-
press of, and can have no recourse to, the event, Automo-
bile Ins. Co. of Hartford, Conn., v. Kirby, 25 Ala.App. 245,
144 So. 123, 124; when property is stolen and then aban-
doned at place unknown to owner, property is lost, Auto-
mobile Ins. Co. of Hartford, Conn. v. Kirby, 25 Ala.App.
245, 144 So. 123, 124.
LOT. A number of associated persons or things
taken collectively. Hitchcock v. United States, D.
C.Mich., 36 F.Supp. 507, 510.
A share; one of several parcels into which prop-
erty is divided.
Any portion, piece, division or parcel of land.
Lehmann v. Revell, 188 N.E. 531, 537, 354 Ill. 262;
Corden v. Zoning Bd. of Appeals of City of Water-
bury, 131 Conn. 654, 41 A.2d 912, 915, 916, 159 A.L.
R. 849.
Fractional part or subdivision of block, according to plat
or survey, Lehmann v. Revell, 354 Ill. 262, 188 N.E. 531,
537; Mawson-Peterson Lumber Co. v. Sprinkle, 59 Wyo.
334, 140 P.2d 588, 591, 147 A.L.R. 1089; portion of platted
territory measured and set apart for individual and private
use and occupancy, Hunter v. Roman Catholic Bishop of
Los Angeles and San Diego Corporation Sole, 128 Cal.App.
90, 16 P.2d 1048, 1049; right of way of street railway abut-
ting a public highway, Sterling Nat. Bank & Trust Co. of
New York v. Charleston Transit Co., 126 W.Va. 42, 27 S.E.
2d 256, 259; small tract or parcel of land in a village,
town, or city, suitable for building, or for a garden, or
other similar uses. See Pilz v. Killingsworth, 20 Or. 432,
26 P. 305; Webster v. Little Rock, 44 Ark. 551; Diamond
Mach. Co. v. Ontonagon, 72 Mich. 261, 40 N.W. 448.
The arbitrament of chance; hazard. That which for-
tuitously determines what course shall be taken or what
disposition be made of property or rights.
The thirteenth dish of lead in the mines of Der-
byshire, which belonged to the crown.
LOT AND SCOT. In English law. Certain duties
which must be paid by those who claim to exer-
cise the elective franchise within certain cities and
boroughs, before they are entitled to vote.
It is said that the practice became uniform to refer to
the poor-rate as a register of "scot and lot" voters; so
that the term, when employed to define a right of elec-
tion, meant only the payment by a parishioner of the sum
to which he was assessed on the poor-rate. Brown.
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LUBRICUM
LOT BOOK. Plat book. National Surety Cor-
poration v. Monroe County, 239 Ala. 35, 193 So. 173,
175.
LOTHERWITE, or LEYERWIT. In old English
law. A liberty or privilege to take amends for
lying with a bondwoman without license.
LOTTERY. A chance for a prize for a price. Iris
Amusement Corporation v. Kelly, 366 Ill. 256, 8
N.E.2d 648; Commonwealth v. McLaughlin, 307
Mass. 230, 29 N.E.2d 821, 822. To constitute a
"lottery," there must be a prize, a chance and a
price, State v. Dorau, 124 Conn. 160, 198 A. 573,
576, 577; State ex rel. Cowie v. La Crosse The-
aters Co., 232 Wis. 153, 286 N.W. 707, 710.
Also defined as device whereby anything of val-
ue is for a consideration allotted by lot or chance.
State ex Inf. McKittrick v. Globe-Democrat Pub.
Co., 341 Mo. 862, 110 S.W.2d 705, 713, 714, 717, 718,
113 A.L.R. 1104; distribution of prizes and blanks
by lot or chance, Shanchell v. Lewis Amusement
Co., La.App., 171 So. 426, 429; game by which a
person paying money becomes entitled to money
or other thing of value on certain contingencies,
determinable by lot cast in a particular way by
the manager of the game, Lee v. City of Miami,
121 Fla. 93, 163 So. 486, 492, 101 A.L.R. 1115, game
of hazard in which small sums of money are ven-
tured for chance of obtaining a larger value in
money or other articles; State v. Jones, 44 N.M.
623, 107 P.2d 324, 326; Darlington Theatres v.
Coker, 190 S.C. 282, 2 S.E.2d 782, 786; game of
hazard wherein several lots of merchandise are
deposited in prizes for benefit of the fortunate,
Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 493,
101 A.L.R. 1115; game which, played or operated
once, destroys the value of ticket provided as the
prizes are distributed, D'Alessandro v. State, 114
Fla. 70, 153 So. 95, gaming contract by which for a
valuable consideration one may by favor of the
lot obtain a prize of value superior to the amount
or value of that which he risks; Dorman v. Pub-
lix-Saenger-Sparks Theatres, 135 Fla. 284, 184 So.
886, 890, 891, 120 A.L.R. 403; Troy Amusement Co.
v. Attenweiler, 64 Ohio App. 105, 28 N.E.2d 207,
212; hazard in which sums are ventured for a
chance of obtaining a greater value, People v.
Hines, 284 N.Y. 93, 29 N.E.2d 483, 488; plan where-
by anything of value is disposed of by lot or
chance, State v. Emerson, 318 Mo. 633, 1 S.W.2d
109, 112. Scheme by which one or more prizes are
distributed by chance. State v. Wersebe, 107 Vt.
529, 181 A. 299. Scheme by which result is reached
by some action or means taken, and in which re-
sult man's choice or will has no part nor can hu-
man reason, foresight, sagacity, or design enable
him to know or determine such result until the
same has been accomplished, State v. Schwemler,
154 Or. 533, 60 P.2d 938, 940; scheme for distribu-
tion of prizes or things of value by lot or chance.
State v. Horn, 16 N.J.Misc. 319, 1 A.2d 51, 54;
Engle v. State, 53 Ariz. 458, 90 P.2d 988, 992, 993,
scheme for raising money by selling chances to
share in distribution of prizes, Lee v. City of Mi-
ami, 121 Fla. 93, 163 So. 486, 488, 101 A.L.R. 1115.
Scheme where money is paid for chance of receiv-
ing money or a prize in return. People v. Psallis,
Mag.Ct.N.Y., 12 N.Y.S.2d 796, 797, 798, 799; scheme
whereby one on paying money or other valuable
thing to another becomes entitled to receive from
him such a return in value or nothing as some for-
mula of chance may determine, Commonwealth v.,
Banks, 98 Pa.Super. 432, 436; State v. Hundling,
220 Iowa 1369, 264 N.W. 608, 609, 610, 103 A.L.R.
861; scheme which, played or operated once, •de--
stroys the value of ticket provided as the prizes
are distributed, D'Alessandro v. State, 114 Fla. 70,
153 So. 95. Scheme which tends to induce one to
pay or agree to pay a valuable consideration for
a chance to draw a prize. State ex rel. Hunter v.
Omaha Motion Picture Exhibitors Ass'n, 139 Neb.
312, 297 N.W. 547, 548, 549, 550.
-Dutch lottery. See that title.
-Genoese lottery. See that title.
LOU LE LEY DONE CHOSE, LA CEO DONE
REMEDIE A VENER A CEO. 2 Rolle, 17. Where
the law gives a right, it gives a remedy to recover.
LOUAGE. Fr. This is the contract of hiring and
letting in French law, and may be either of things
or of labor.
The varieties of each are the following:
1. Letting of things,-bail a loyer being the letting of
houses; bail a ferme being the letting of lands.
2. Letting of labor,-loyer being the letting of personal
service; bail a cheptel being the letting of animals.
Brown.
LOURCURDUS. A ram or bell-wether. Cowell.
LOVE-DAY. In old English law. The day on
which any dispute was amicably settled between
neighbors; or a day on which one neighbor helps
another without hire. Wharton.
LOW JUSTICE. In old European law, jurisdiction
of petty offenses, as distinguished from "high jus-
tice," (q. v.).
LOW-WATER. The furthest receding point of
ebb-tide. Howard v. Ingersoll, 13 How. 417, 14 L.
Ed. 189.
LOW-WATER MARK. See Water-Mark.
LOWBOTE. A recompense for the death of a
man killed in a tumult. Cowell.
LOWERS. Fr. In French maritime law. Wages.
Ord. Mar. liv. 1, tit. 14, art. 16.
LOYAL. Legal; authorized by or conforming to
law. Also faithful in one's political relations;
giving faithful support of one's prince or sovereign
or to the existing government.
LOYALTY. Adherence to law. Faithfulness to
one's prince or sovereign or to the existing gov-
ernment.
LUBRICUM LINGUAE NON FACILE TRAHEN-
DUM EST IN PCENAM. Cro. Car. 117. A slip
of the tongue ought not lightly to be subjected to
punishment.
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LUCID
LUCID INTERVAL. A temporary cure, Succes-
sion of Tyler, 193 La. 480, 190 So. 651, 656; a tem-
porary restoration to sanity, Abercrombie v. Mc-
Larty, 173 Ga. 414, 160 S.E. 611, 612.
A full return of mind to sanity as places the party in pos-
Session of the powers of his mind enabling him to under-
stand and transact his affairs as usual, Succession of Tyler,
193 La. 480, 190 So. 651, 656; an interval in which the
mind, having thrown off the disease, has recovered from
its general habit, Melody v. Hamblin, 21 Tenn.App. 687,
115 S.W.2d 237, 245; Intervals occurring in the mental
life of an insane person during which he is completely re-
stored to the use of his reason, or so far restored that he
has sufficient intelligence, judgment, and will to enter into
contractual relations, or perform other legal acts, without
disqualification by reason of his disease, Roberts v. Pacific
Telephone & Telegraph Co., 93 Wash. 274, 160 P. 965, 970;
Oklahoma Natural Gas Corporation v. Lay, 175 Okl. 75, 51
P.2d 580, 583; period of time during which person had
sufficient mental capacity to know and understand nature
and consequence of marriage relation, and the reciprocal
and mutual duties and obligations thereof, Carter v. Bacle,
Tex.Civ.App., 94 S.W.2d 817, 819.
LUCRA NUPTIALIA. Lat. In Roman law. A
term including everything which a husband or
wife, as such, acquires from the estate of the
other, either before the marriage, or on agreeing
to it, or during its continuance, or after its dissolu-
tion, and whether the acquisition is by pure gift,
or by virtue of the marriage contract, or against
the will of the other party by law or statute. See
Mackeld. Rom. Law, § 580.
LUCRATIVA CAUSA. •Lat. In Roman law. A
consideration which is voluntary; that is to say,
a gratuitous gift, or such like.
It was opposed to onerosa causa, which denoted a valu-
able consideration. It was a principle of the Roman law
that two lucrative causes could not concur in the same per-
son as regarded the same thing; that is to say, that, when
the same thing was bequeathed to a person by two different
testators, he could not have the thing (or its value) twice
over. Brown.
LUCRATIVA USUCAPIO. Lat. This species of
usucapio was permitted in Roman law only in the
case of persons taking possession of property upon
the decease of its late owner, and in exclusion or
deforcement of the heir, whence it was called
"usucapio pro hcerede."
The adjective "lucrativa" denoted that property was
acquired by this usucapio without any consideration or
payment for it by way of purchase; and, as the possessor
who so acquired the property was a maid fide possessor,
his acquisition, or usucapio, was called also "improba," (i.
e., dishonest;) but this dishonesty was tolerated (until
abolished by Hadrian) as an incentive to force the hceres to
take possession, in order that the debts might be paid and
the sacrifices performed; and, as a further incentive to
the hceres, this usucapio was complete in one year. Brown.
LUCRATIVE. Yielding gain or profit; profitable;
bearing or yielding a revenue or salary.
LUCRATIVE BAILMENT. See Bailment.
LUCRATIVE OFFICE. One which yields a rev-
enue (in the form of fees or otherwise) or a fixed
salary to the incumbent; according to some au-
thorities, one which yields a compensation sup-
posed to be adequate to the services rendered and
in excess of the expenses incidental to the office.
See State v. Kirk, 44 Ind. 405, 15 Am.Rep. 239;
Crawford v. Dunbar, 52 Cal. 39; Hodge v. State,
135 Tenn. 525, 188 S.W. 203, 206. One the pay of
• which is affixed to performance of duties of office.
Holman v. Lutz, 132 Or. 185, 284 P. 825, 827.
LUCRATIVE SUCCESSION. In Scotch law. A
kind of passive title by which a person accepting
from another, without any onerous cause, (or
without paying value,) a disposition of any part
of his heritage, to which the receiver would have
succeeded as heir, is liable to all the grantor's debts
contracted before the said disposition. 1 Forb.
Inst. pt. 3, p. 102.
LUCRATUS. In Scotch law. A gainer.
LUCRE. Gain in money or goods; profit; us-
ually in an ill sense, or with the sense of some-
thing base or unworthy. Webster.
LUCRI CAUSA. Lat. In criminal law. A term
descriptive of the intent with which property is
taken in cases of larceny, the phrase meaning "for
the sake of lucre" or gain. State v. Ryan, 12 Nev.
403, 28 Am.Rep. 802; State v. Slingerland, 19 Nev.
135, 7 P. 280; Groover v. State, 82 Fla. 427, 90
So. 473, 475, 26 A.L.R. 375.
LUCRUM. A small slip or parcel of land.
LUCRUM CESSANS. Lat. In Scotch law. A.
ceasing gain, as distinguished from damnum da-
tum, an actual loss.
LUCRUM FACERE EX PUPILLI TUTELA TU-
TOR NON DEBET. A guardian ought not to
make money out of the guardianship of his ward.
Manning v. Manning's Ex'rs, 1 Johns. Ch. (N.Y.)
527, 535.
LUCTUOSA ILEREDITAS. A mournful inheri-
tance. See Hreditas Luctuosa.
LUCTUS, In Roman law. Mourning. See Annus
Luctus.
LUGGAGE. Luggage may consist of any articles
intended for the use of a passenger while travel-
ing, or for his personal equipment. Civ.Code Cal.
§ 2181.
This term is synonymous with "baggage," but is more
commonly used in England than in America. Choctaw,
etc., R. Co. v. Zwirtz, 13 Okl. 411, 73 P. 941.
If a bus company or other motor carrier, "to suit its
own convenience, takes possession of the luggage of a pas-
senger for hire, to care for it on the trip, and becomes
a bailee under a special contract, its liability as special
bailee is broader than that of a common carrier and in-
cludes liability for articles that might not be classed as
ordinary baggage." Blashfield, Cyc. of Automobile Law
and Prac., Perm. Ed., § 2195.
LUMBER. Used to describe both trees suitable
to saw and products into which they are sawed.
Brasher v. Industrial Lumber Co., La.App., 165 So.
524, 526.
LUMBER PORTS. Openings in the bow of the
barge which are used when long pieces of lumber
are put on board are lumber ports. The Chehaw,
D.C.N.Y., 54 F.2d 645, 648.
LUMEN. Lat. In the civil law. Light; the light
of the sun or sky; the privilege of receiving light
into a house.
A light or window.
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LUMINA. Lat. In the civil law. Lights; win-
dows; openings to obtain light for one's building.
LUMINARE. A lamp or candle set burning on the
altar of any church or chapel, for the maintenance
whereof lands and rent-charges were frequently
given to parish churches, etc. Kennett, Gloss.
LUMP SUM PAYMENT within compensation
act is a payment before it becomes due under
monthly payments. Verban v. State Industrial
Accident Commission, 169 Or. 394, 123 P.2d 988,
996.
LUMP-SUM SETTLEMENT within compensa-
tion act, means that the entire amount of compen-
sation due the employee is paid at one and the
same time. Puchner v. Employers' Liability As-
sur. Corporation, 198 La. 921, 5 So.2d 288, 296.
LUMPING SALE. As applied to judicial sales,
this term means a sale in mass, as where several
distinct parcels of real estate, or several articles
of personal property, are sold together for a
"lump" or single gross sum. Anniston Pipeworks
v. Williams, 106 Ala. 324, 18 So. 111, 54 Am.St.
Rep. 51.
LUNACY. Lunacy is that condition or habit in
which the mind is directed by the will, but is
wholly or partially misguided or erroneously gov-
erned by it; or it is the impairment of any one
or more of the faculties of the mind, accompanied
with or inducing a defect in the comparing faculty.
Owings' Case, 1 Bland (Md.) 386, 17 Am.Dec. 311.
The term includes every kind of unsoundness of mind
except idiocy. De Nardo v. De Nardo, 293 N.Y. 550, 59 N.
E.2d 241. See Insanity.
For "Commission of Lunacy," and "Inquisition
(or Inquest) of Lunacy," see those titles.
LUNAR. Belonging to or measured by the revolu-
tions of the moon.
LUNAR MONTH. See Month.
LUNATIC. A person of deranged or unsound
mind; a person whose mental faculties are in the
condition called "lunacy"; one who possessed rea-
son, but through disease, grief, or other cause has
lost it. May mean all insane persons or persons
of unsound mind, sometimes including and some-
times excluding idiots. Oklahoma Natural Gas
Corporation v. Lay, 175 Okl. 75, 51 P.2d 580, 582.
A "lunatic" is distinguished from an "Idiot" in that the
lunatic has lucid intervals, while the idiot has no power of
mind whatever. Weinberg v. Weinberg, 8 N.Y.S.2d 341,
344, 255 App.Div. 366.
LUNATICUS, QUI GAUDET IN LUCIDIS IN-
TERVALLIS. He is a lunatic who enjoys lucid
intervals. 1 Story, Cont. § 73.
LUNDRESS. In old English law. A silver penny,
so called because it was to be coined only at Lon-
don, (a Londres,) and not at the country mints.
Lown. Essay Coins, 17; Cowell.
LUPANATRIX. A bawd or strumpet. 3 Inst.
206.
LUPINUM CAPUT GERERE. Lat. To be out-
lawed, and have one's head exposed, like a wolf's,
with a reward to him who should take it. Cowell.
LURCH, See Jerk.
LURGULARY. Casting any corrupt or poisonous
thing into the water. Wharton.
LUSHBOROW. In old English law. A base sort
of money, coined beyond sea in the likeness of
English coin, and introduced into England in the
reign of Edward III. Prohibited by St. 25 Edw.
III. c. 4. Spelman; Cowell.
LUXURY. Excess and extravagance which was
formerly an offense against the public economy,
but is not now punishable. Wharton.
LYCH-GATE. The gate into a church-yard, with
a roof or awning hung on posts over it to cover
the body brought for burial, when it rests under-
neath. Wharton.
LYEF-GELD. Sax. In old records. Lief silver
or money; a small fine paid by the customary
tenant to the lord for leave to plow or sow, etc.
Somn. Gavelkind, 27.
LYING BY. A person who, by his presence and
silence at a transaction which affects his interests,
may be fairly supposed to acquiesce in it, if he
afterwards propose to disturb the arrangement, is
said to be prevented from doing so by reason that
he has been lying by.
LYING IN FRANCHISE. A term descriptive of
waifs, wrecks, estrays, and the like, which may be
seized without suit or action.
LYING IN GRANT. A phrase applied to incor-
poreal rights, incapable of manual tradition, and
which must pass by mere delivery of a deed.
LYING IN WAIT. Lying in ambush; lying hid
or concealed for the purpose of making a sudden
and unexpected attack upon a person when he
shall arrive at the scene.
In some jurisdictions, where there are several degrees
of murder, lying in wait is made evidence of that delibera-
tion and premeditated intent which is necessary to char-
acterize murder in the first degree. Commonwealth v.
Mondollo, 247 Pa. 526, 93 A. 612.
This term is not synonymous with "concealed." If a
person conceals himself for the purpose of shooting another
unawares, he is lying in wait; but a person may, while
concealed, shoot another without committing the crime of
murder. People v. Miles, 55 Cal. 207.
LYNCH LAW. A term descriptive of the action
of unofficial persons, organized bands, or mobs,
who seize persons charged with or suspected of
crimes, or take them out of the custody of the law,
and inflict summary punishment upon them, with-
out legal trial, and without the warrant or au-
thority of law. See State v. Aler, 39 W.Va. 549,
20 S.E. 585; Bates' Ann.St.Ohio, 1904, 4426 (Gen.
Code, § 6278).
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MACHINERY
M
M'NAGHTEN RULE. The right-wrong test of
criminal responsibility. The rule states essential-
ly that if accused was possessed of sufficient un-
derstanding when he committed criminal act to
know what he was doing and to know that it was
wrong, he is responsible therefor, but if he did not
know the nature and quality of the act or did
know what he was doing but did not know that it
was wrong, he is not responsible. Hixon v. State,
Fla.App., 165 So.2d 436, 439; Spurlock v. State,
368 S.W.2d 299, 301, 212 Tenn. 132; Dunn v. State,
174 A.2d 185, 188, 226 Md. 463.
McNABB DOCTRINE. Evidence obtained during
an illegal detention; that is, one in which the
prisoner has not been promptly taken before a
committing magistrate as required by law, is in-
admissible in a criminal trial. McNabb v. United
States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819;
Mullican v. U. S., C.A.Tex., 252 F.2d 398.
M. This letter, used as a Roman numeral, stands
for one thousand.
It was also, in old English law, a brand or stigma im-
pressed upon the brawn of the thumb of a person convicted
of manslaughter and admitted to the benefit of clergy.
This letter was sometimes put on the face of treasury
notes of the United States, and signifies that the treasury
note bears interest at the rate of one mill per centum, and
not one per centum interest. U. S. v. Hardyman, 13 Pet.
176, 10 L.Ed. 113.
M. D. An abbreviation for "Middle District," in
reference to the division of the United States into
judicial districts. Also an abbreviation for "Doc-
tor of Medicine."
M. F. B. M. An abbreviation meaning 1,000 feet
board measure. T. L. James & Co. v. Galveston
County, Tex., C.C.A.Tex., 74 F.2d 313.
M. R. An abbreviation for "Master of the Rolls."
M. T. An abbreviation for "Michaelmas Term."
MACE. A large staff, made of the precious met-
als, and highly ornamented.
It is used as an emblem of authority, and carried before
certain public functionaries by a mace-bearer. In many
legislative bodies, the mace is employed as a visible symbol
of the dignity and collective authority of the house. In
the house of lords and house of commons of the British
parliament, it is laid upon the table when the house is in
session. in the United States house of representatives, it
is borne upright by the sergeant-at-arms on extraordinary
occasions, as when it is necessary to quell a disturbance
or bring refractory members to order.
MACE-BEARER. In English law. One who car-
ries the mace before certain functionaries. In
Scotland, an officer attending the court of session,
and usually called a "macer."
MACE-GREFF. In old English law. One who
buys stolen goods, particularly food, knowing it to
have been stolen.
MACE-PROOF. Secure against arrest.
MACEDONIAN DECREE, In Roman law. This
was the Senatu.s-consultum Macedonianum, a de-
cree of the Roman senate, first given under Claud-
ius, and renewed under Vespasian by which it was
declared that no action should be maintained to
recover a loan of money made to a child who was
under the patria potestas.
It was intended to strike at the practice of usurers in
making loans, on unconscionable terms, to family heirs
who would mortgage their future expectations from the
paternal estate. The law is said to have derived its name
from that of a notorious usurer. See Mackeld.Rom. Law,
§ 432; Inst. 4, 7, 1; Dig. 14, 6.
MACER. A mace-bearer; an officer attending the
court of session in Scotland.
MACHECOLLARE. To make a warlike device
over a gate or other passage like to a grate,
through which scalding water or ponderous or
offensive things may be cast upon the assailants.
Co. Litt. 5a.
MACHINATION. The act of planning or contriv-
ing a scheme for executing some purpose, partic-
ularly an evil purpose; an artful design formed
with deliberation.
MACHINE. Combination of inanimate mechan-
ism for utilizing or applying power, Northern New
York Trust Co. v. Bano, 273 N.Y.S. 694, 151 Misc.
684.
Also means construction or contrivance of mechanical
sort, Monroe Calculating Mach. Co. v. Department of
Labor and Industries, 11 Wash.2d 636, 120 P.2d 466, 471;
contrivance composed of cooperating elements which act
under the law imposed upon them to regulate or modify
the relations between force, motion and weight; Contriv-
ance used to regulate or augment force or motion; a
complex structure, consisting of a combination, or peculiar
modification, of mechanical powers to perform some func-
tion. Simon, Buhler & Baumann v. U. S., 8 Ct.Cust.App.
273, 277; device consisting of two or more resistant,
relatively constrained parts, which, by certain predeter-
mined intermotion, may serve to transmit and modify
force and motion so as to produce some given effect or to
do some desired kind of work, Blankenship v. Cox, 204 Ark.
427, 162 S.W.2d 918, 923. Device or combination of devices
by means of which energy can be utilized for useful opera-
tion to be performed. Nestle-Le Mur Co. v. Eugene, Lim-
ited, C.C.A.Ohio, 55 F.2d 854, 857; mechanical device, or
combination of mechanical powers and devices, to perform
some function and produce a certain effect or result.
Corning v. Burden, 15 How. 252, 267, 14 L.Ed. 683.
For "Dangerous Machine" and "Perfect Ma-
chine," see those titles.
MACHINERY. Complex combination of mechan-
ical parts, Blankenship v. Cox, 204 Ark. 427, 162 S.
W.2d 918, 923.
A more comprehensive term than "machine"; including
the appurtenances necessary to the working of a machine.
Shaleen v. Central Coal & Coke Co., 127 Ark. 397, 192 S.W.225, 227. Parts of a machine considered collectively.
Haddad v. Commercial Motor Truck Co., 146 La. 897, 84
So. 197, 198, 9 A.L.R. 1380.
Machines, in general, or collectively; also, the working
parts of a machine, engine or instrument; as the machine-
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MACHOLUM
ry of a watch. Monroe Calculating Mach. Co. v. Depart-
ment of Labor and Industries, 11 Wash.2d 636, 120 P.2d
466, 471.
MACHOLUM. In old English law. A barn or
granary open at the top; a rick or stack of corn.
Spelman.
MACTATOR. L. Lat. In old European law. A
murderer.
MACULARE. In old European law. To wound.
Spelman.
MAD PARLIAMENT. Henry III, in 1258, at the
desire of the Great Council in Parliament, con-
sented to the appointment of a committee of
twenty-four, of whom twelve were appointed by
the Barons and twelve by the King, in a parlia-
ment which was stigmatized as the "Mad Parlia-
ment." Unlimited power was given to it to carry
out all necessary reforms. It drew up the Pro-
visions of Oxford.
MAD POINT. A term used to designate the idea
or subject to which is confined the derangement
of the mental faculties of one suffering from mon-
omania. Owing's Case, 1 Bland (Md.) 388, 17 Am.
Dec. 311. See Insanity.
MADE. Filed. St. Louis Law Printing Co. v. Auf-
derheide, 226 Mo.App. 680, 45 S.W.2d 543, 545;
Peavy v. Peavy, 145 S.E. 55, 56, 167 Ga. 219. Pro-
duced artificially. United States v. Anderson, D.C.
Cal., 45 F.Supp. 943, 946. To require or compel,
Dickinson v. Mingea, 191 Ark. 946, 88 S.W.2d 807,
809.
MADE KNOWN. Where a writ of scire fascias
has been actually served upon a defendant, the
proper return is that its contents have been "made
known" to him.
A crime is "made known" to an officer when facts which
come to knowledge of the officer are such as to indicate
to him that it is his official duty to act or to see that an
investigation of the alleged crime is instituted within his
jurisdiction. State v. Young, 194 La. 1061, 195 So. 539, 540.
MADMAN. An insane person, particularly one
suffering from mania in any of its forms.
Said to be inapplicable to idiots (Com. v. Haskell, 2
Brewst. [Pa.] 497) ; Bensberg v. Washington University,
251 Mo. 641, 158 S.W. 330, 336, but it is not a technical term
either of medicine or the law, and is incapable of being
applied with scientific precision. See Insanity.
MADNESS. See Insanity.
MADRAS REGULATIONS. Certain regulations
prescribed for the government of the Madras pres-
idency. Mozley & Whiteley.
MIEC-BURGH. In Saxon law. Kindred; fam-
ily.
MIEG. A kinsman. 2 Poll. & Maitl. 241.
MIEGBOTE. In Saxon law. A recompense or
satisfaction for the slaying or murder of a kins-
man. Spelman.
WERE. Famous; great; noted; as iElmere, all
famous. Gibs, Camd.
MIEREMIUM. Timber; wood suitable for build-
ing purposes.
MAGIC. In English statutes. Witch-craft and
sorcery.
MAGIS. Lat. More; more fully; more in num-
ber; rather.
MAGIS DE BONO QUAM DE MALO LEX IN-
TENDIT. Co. Litt. 78b. The law favors a good
rather than a bad construction.
Where the words used in an agreement are susceptible of
two meanings, the one agreeable to, the other against, the
law, the former is adopled. Thus, a bond conditioned "to
assign all offices" will be construed to apply to such of-
fices only as are assignable. Chit.Cont. 78.
MAGIS DIGNUM TRAHIT AD SE MINUS DIG-
NUM. The more worthy draws to itself the less
worthy. Yearb. 20 Hen. VI. 2, arg.
MAGISTER. Lat.
Civil law. A title of several offices under the
Roman Empire.
English law. A master or ruler; a person who
has attained to some eminent degree in science.
Cowell.
MAGISTER AD FACULTATES. In English ec-
clesiastical law. The title of an officer who grants
dispensations; as to marry, to eat flesh on days
prohibited, and the like. Bac. Abr. "Ecclesiastical
Courts," A, 5.
MAGISTER BONORUM VENDENDORUM. In
Roman law, a person appointed by judicial author-
ity to inventory, collect, and sell the property of an
absent or absconding debtor for the benefit of his
creditors.
He was generally one of the creditors, and his functions
corresponded generally to those of a receiver or an as-
signee for the benefit of creditors under modern practice.
See Mackeld.Rom. Law § 521.
MAGISTER CANCELLARIZE. In old English
law. Master of the chancery; master in chancery.
These officers were said to be called "magistri,"
because they were priests. Latch. 133.
MAGISTER EQUITUM. Master of the horse. A
title of office under the Roman Empire.
MAGISTER LIBELLORUM. Master of requests.
A title of office under the Roman Empire.
MAGISTER LITIS. Master of the suit; the per-
son who controls the suit or its prosecution, or
has the right so to do.
MAGISTER NAVIS. In the civil law. The mas-
ter of a ship or vessel. He to whom the care of
the whole vessel is committed. Dig. 14, 1, 1, 1, 5.
MAGISTER PALATII. Master of the palace or
of the offices. An officer under the Roman Em-
pire bearing some resemblance to the modern
lord chamberlain. Tayl. Civil Law, 37.
MAGISTER RERUM USUS. Use is the master
of things. Co. Litt. 229b. Usage is a principal
guide in practice.
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MAGISTER RERUM USUS; MAGISTRA RE-
RUM EXPERIENTIA. Use is the master of
things; experience is the mistress of things. Co.
Litt. 69, 229; Wing. Max. 752.
MAGISTER SOCIETATIS. In the civil law. The
master or manager of a partnership; a managing
partner or general agent; a manager specially
chosen by a firm to administer the affairs of the
partnership. Story Partn. § 95.
MAGISTERIAL. Relating or pertaining to the
character, office, powers, or duties of a magistrate
or of the magistracy.
MAGISTERIAL PRECINCT. In some American
states, a local subdivision of a county, defining
the territorial jurisdiction of justices of the peace
and constables, Breckinridge Co. v. McCracken,
C.C.A.Ky., 61 F. 194, 9 C.C.A. 442; also called
magisterial district. State v. Mingo County Court,
97 W.Va. 615, 125 S.E. 576, 577.
MAGISTRACY. This term may have a more or
less extensive signification according to the use
and connection in which it occurs. In its widest
sense it includes the whole body of public func-
tionaries, whether their offices be legislative, judi-
cial, executive, or administrative. In a more re-
stricted (and more usual) meaning, it denotes the
class of officers who are charged with the applica-
tion and execution of the laws. In a still more con-
fined use, it designates the body of judicial officers
of the lowest rank, and more especially those who
have jurisdiction for the trial and punishment of
petty misdemeanors or the preliminary steps of
a criminal prosecution, such as police judges and
justices of the peace. The term also denotes the
office of a magistrate. Golden v. Golden, 41 N.M.
356, 68 P.2d 928, 930.
MAGLSTRALIA BREVIA. In old English practice.
Magisterial writs; writs adapted to special cases,
and so called from being framed by the masters
or principal clerks of the chancery. Bract. fol.
413b; Crabb, Corn. Law, 547, 548.
MAGISTRATE. Person clothed with power as a
public civil officer. State ex rel. Miller v. Mc-
Leod, 142 Fla. 254, 194 So. 628, 630.
A public officer belonging to the civil organization of the
state, and invested with powers and functions which may
be either judicial, legislative, or executive. But the term
is commonly used in a narrower sense, designating, in
England, a person intrusted with the commission of the
peace, and, in America, one of the class of inferior judicial
officers, such as justices of the peace and police justices.
Martin v. State, 32 Ark. 124; Ex parte White, 15 Nev. 146,
37 Am.Rep. 466; State v. Allen, 83 Fla. 655, 92 So. 155,
156; Merritt v. Merritt, 193 Iowa 899, 188 N.W. 32, 34.
A magistrate is an officer having power to issue a war-
rant for the arrest of a person charged with a public of-
fense. Pen. Code Cal. § 807.
The word "magistrate" does not necessarily imply an
officer exercising any judicial functions, and might very
well be held to embrace notaries and commissioners of
deeds. Schultz v. Merchants' Ins. Co., 57 Mo. 336.
For "Chief Magistrate," "Committing Magis-
trate," "Police Magistrate" and- "Stipendiary Mag-
istrates," see those titles.
MAGISTRATE'S COURT. In American law.
Courts in the state of South Carolina, having ex-
clusive jurisdiction in matters of contract of and
under twenty dollars.
A local court in the city of Philadelphia, possessing the
criminal jurisdiction of a police court and civil jurisdiction
in actions involving not more than one hundred dollars.
It is not a court of record. See Const.Pa. art. 4, 12.
MAGISTRATUS. Lat. In the civil law. A mag-
istrate. Calvin.
A judicial officer who had the power of hearing and de-
termining causes, but whose office properly was to inquire
into matters of law, as distinguished from fact. Hallifax,
Civil Law, b. 3, c. 8.
MAGNA ASSISA. In old English law. The grand
assize. Glanv. lib. 2, cc. 11, 12.
MAGNA ASSISA ELIGENDA. An ancient writ
to summon four lawful knights before the jus-
tices of assize, there to choose twelve others, with
themselves to constitute the grand assize or great
jury, to try the matter of right. The trial by grand
assize was instituted by Henry II. in parlia-
ment, as an alternative to the duel in a writ of
right. Abolished by 3 & 4 Wm. IV. c. 27. Whar-
ton.
MAGNA AVERIA. In old pleading. Great beasts,
as horses, oxen, etc. Cro. Jac. 580.
MAGNA CENTUM. The great hundred, or six
score. Wharton.
MAGNA CHARTA. The great charter.
The name of a charter (or constitutional enactment)
granted by King John of England to the barons, at Runny-
mede, on June 15, 1215, and afterwards, with some altera-
tions, confirmed in parliament by Henry III. and Edward
I. This charter is justly regarded as the foundation of
English constitutional liberty. Among its thirty-eight
chapters are found provisions for regulating the adminis-
tration of justice, defining the temporal and ecclesiastical
jurisdictions, securing the personal liberty of the subject
and his rights of property, and the limits of taxation, and
for preserving the liberties and privileges of the church.
Magna Charta is so called, partly to distinguish it from
the Charta de Foresta, which was granted about the same
time, and partly by reason of its own transcendent impor-
tance.
MAGNA CHARTA ET CHARTA DE FORESTASONT APPELES LES "DEUX GRANDES
CHARTERS." 2 Inst. 570. Magna Charta and the
Charter of the Forest are called the "two great
charters."
MAGNA COMPONERE PARVIS. To compare
great things with small things.
MAGNA CULPA. Great fault; gross negligence.
MAGNA NEGLIGENTIA. In the civil law. Great
or gross negligence.
MAGNA NEGLIGENTIA CULPA EST; MAGNA
CULPA DOLUS EST. Gross negligence is fault;
gross fault is fraud. Dig. 50, 16, 226.
MAGNA PRECARIA. In old English law. A
great or general reap-day. Cowell; Blount.
MAGNA SERJEANTIA. In old English law.
Grand serjeanty. Fleta, lib. 2, c. 4, § 1.
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MAGNUM
MAGNUM CAPE. In old Practice. Great or
grand cape. 1 Reeve, Eng. Law, 418. See Grand
Cape.
MAGNUM CON CILIUM. In old English law. The
great council; the general council of the realm;
afterwards called "parliament." 1 Bl. Comm. 148;
1 Reeve, Eng. Law, 62; Spelman.
The king's great council of barons and prelates.
Spelman; Crabb, Com. Law 228.
MAGNUS ROTULUS STATUTORUM. The great
statute roll. The first of the English statute rolls,
beginning with Magna Charta, and ending with
Edward III. Hale, Com. Law, 16, 17.
MAHA—GEN. In Hindu law. A banker or any
great shop-keeper.
MAHAL. In Hindu law. Any land or public fund
producing a revenue to the government of Hindo-
stan. "Mahalaat" is the plural.
MAHLBRIEF. In maritime law. The German
name for the contract for the building of a vessel.
This contract contains a specification of the kind of ves-
sel intended, her dimensions, the time within which she
is to be completed, the price and times of payment, etc.,
with reservation generally that the contractor or his agent
(usually the master of a vessel) may reject uncontract-
worthy materials, and oblige the builder to supply others.
Jac. Sea Laws 2-8.
MAIDEN. A young unmarried woman. In an in-
dictment for adultery, not necessarily a virgin.
State v. Shedrick, 69 Vt. 428, 38 A. 75.
In Scotch law. An instrument formerly used in behead-
ing criminals. It resembled the French guillotine, of
which it is said to have been the prototype. Wharton.
MAIDEN ASSIZE. In English law. Originally an
assize at which no person was condemned to die.
Now a session of a criminal court at which there
are no prisoners to be tried.
MAIDEN RENTS. In old English law. A fine
paid to lords of some manors, on the marriage of
tenants, originally given in consideration of the
lord's relinquishing his customary right of lying
the first night with the bride of a tenant. Cowell.
MAIGNAGIUM. A brasier's shop, or, perhaps, a
house. Cowell.
MAIHEM. See Mayhem; Maim.
MAIHEMATUS. Maimed or wounded.
MAIHEMIUM. In old English law. Mayhem
(q. v.).
MAIHEMIUM EST HOMICIDIUM INCHOATUM.
3 Inst. 118. Mayhem is incipient homicide.
MAIHEM/UM EST INTER CRIMINA MAJORA
MINIMUM, ET INTER MINORA MAXIMUM.
Co.Litt. 127. Mayhem is the least of great crimes,
and the greatest of small.
MAIHEMIUM EST MEMBRI MUTILATIO, ET
DICI POTERIT, UBI ALIQUIS IN ALIQUA PAR-
TE SUI CORPORIS EFFECTUS SIT INUTILIS
AD PUGNANDUM. Co.Litt. 126. Mayhem is the
mutilation of a member, and can be said to take
place when a man is injured in any part of his
body so as to be useless in fight.
MAIL. As applied to the post-office, the carriage
of letters, whether applied to the bag into which
they are put, the coach or vehicle by means of
which they are transported, or any other means
employed for their carriage and delivery by public
authority. Wynen v. Schappert, 6 Daly (N.Y.)
560. It may also denote the letters or other matter
so carried.
The term "mail," as used in Rev. St. U. S. § 5469, 18
U.S.C.A. §§ 1702, 1708, relative to robbing the mails, may
mean either the whole body of matter transported by the
postal agents, or any letter or package forming a compo-
nent part of it. U. S. v. Inabnet, D.C.S.C., 41 F. 130.
Mail also denotes armor, as in the phrase a "coat of
mail."
Scotch law. Rent; a rent or tribute. A tenant who pays
a rent is called a "mail-payer," "mailer," or "mail-man."
Skene.
MAIL MATTER. This term includes letters, pack-
ets, etc., received for transmission, and to be trans-
mitted by post to the person to whom such mat-
ter is directed. U. S. v. Huggett, C.C.Ohio, 40
F. 641; U. S. v. Rapp, C.C.Ga., 30 F. 820.
Mail and mail matter are used interchangeably in stat-
ute, and both stamps and money can be mail matter. Kelly
v. Johnston, C.C.A.Cal., 128 F.2d 793, 794.
MAILABLE. Suitable or admissible for transmis-
sion by the mail; belonging to the classes of arti-
cles which, by the laws and postal regulations,
may be sent by post.
MAILE. In old English law. A kind of ancient
money, or silver half-pence; a small rent.
MAILED. Mailing with appropriate address on en-
velope. Societa Principessa Iolanda Margherita Di
Savoia (Fondata Dai Bonitesi) v. Broderick, 260
N.Y. 260, 183 N.E. 382, 383.
This word, as applied to a letter, means that the letter
was properly prepared for transmission by the postal de-
partment, and that it was put in the custody of the offi-
cer charged with the duty of forwarding the mail. Pier v.
Heinrichshoffen, 67 Mo. 163, 29 Am.Rep. 501, and testi-
mony that a letter was "mailed" to the addressee implies
that it was properly addressed, stamped, and deposited
in a proper place for the receipt of mail. Dawson Farm-
er's Elevator Co. v. Opp, 57 N. D. 598, 223 N.W. 350, 353.
Model Mill Co. v. Webb, 164 N. C. 87, 80 S.E. 232, 233. But
some courts limit this implication. See W. T. Rawleigh
Medical Co, v. Burney, 25 Ga.App. 20, 102 S.E. 358; Feder
Silberberg Co. v. McNeil, 18 N.M. 44, 133 P. 975, 49 L.R.A.,
N.S., 458.
MAILLS AND DUTIES. In Scotch law. The rents
of an estate. Bell.
MAIM. As now used signifies to cripple or muti-
late in any way, to inflict upon a person any injury
which deprives him of the use of any limb or
member of the body, or renders him lame or defec-
tive in bodily vigor; to inflict bodily injury; to
seriously wound or disfigure; disable. See Shack-
elford v. Com., 183 Va. 423, 32 S.E.2d 682, 684;
State v. Thomas, 157 Kan. 526, 142 P.2d 692, 693;
State v. Deso, 1 A.2d 710, 715; Phillips v. State,
140 Tex.Cr.R. 84, 143 S.W.2d 591, 592.
At common law, to deprive a person of a member or
part of the body, the loss of which renders him less capable
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MAINPERNABLE. Capable of being bailed; bail-
able; admissible to bail on giving surety by main-
pernors.
of fighting; or of defending himself ; to commit mayhem
(q. v.). State v. Johnson, 58 Ohio St. 417, 51 N.E. 40, 65
Am. St. Rep. 769.
To "maim" an animal permanent injury must have been
inflicted. State v. Benson, 91 Mont. 21, 5 P.2d 223, 224;
Williams v. State, 51 Ga.App. 53, 179 S.E. 600. MAINPERNOR. In old practice. A surety for
the appearance of a person under arrest, who is
delivered out of custody into the hands of his bail.
MAINPRISE. The delivery of a person into the
custody of mainpernors (q. v.). Also the name of
a writ (now obsolete) commanding the sheriff to
take the security of mainpernors and set the par-
ty at liberty.
"Mainpernors" differ from "bail" in that a man's bail
may imprison or surrender him up before the stipulated
day of appearance; mainpernors can do neither, but are
barely sureties for his appearance at the day. Bail are
only sureties that the party be answerable for the special
matter for which they stipulate; mainpernors are bound
to produce him to answer all charges whatsoever. 3 BI.
Comm. 128. Other distinctions are made in the old books.
See Cowell.
MAIN. L. Fr. A hand. More commonly written
"meyn."
Principal, chief, most important in size, extent,
or utility.
First or chief in size, rank, importance, strength, extent;
principal, chief, leading. Oregon, C. & E. Ry. Co. v.
Blackmer, 154 Or. 3§8, 59 P.2d 694, 696.
Utilities, chief or primary conductors, Jersey Central
Power & Light Co. v. State Board of Tax Appeals, 131 N.
J.L. 565, 37 A.2d 111, 112, 113; main or principal conduits,
Jersey Central Power & Light C9. v. State Board of Tax
Appeals, 130 N.J.L. 364, 33 A.2d 355, 356.
MAIN CHANNEL. The main channel of a river
is that bed over which the principal volume of
water flows. See St. Louis, etc., Packet Co. v.
Keokuk & H. Bridge Co., C.C.Iowa, 31 F. 757;
Cessill v. State, 40 Ark. 504; Dunlieth & D. Bridge
Co. v. Dubuque County, 55 Iowa 558, 8 N.W. 443.
See, also, Thalweg.
MAIN LINE. Line which would develop sufficient
traffic to necessitate operation of more than one
train in same or opposite direction at any one time
within division terminals. Oregon, C. & E. Ry.
Co. v. Blackmer, 154 Or. 388, 59 P.2d 694, 696;
principal line, Union Pac. R. Co. v. Anderson, 167
Or. 687, 120 P.2d 578, 588.
MAIN SEA. See Sea.
MAIN-RENT, Vassalage.
MAINSWORN. Forsworn, by making false oath
with hand (main) on book. Used in the north of
England. Brownl. 4; Hob. 125.
MAINTAIN, as its structure indicates, signifies
literally to hold by the hand.
It is variously defined as acts of repairs and other acts
to prevent a decline, lapse or cessation from existing state
or condition; bear the expense of ; carry on; commence;
continue; furnish means for subsistence or existence of ;
hold; hold or keep in an existing state or condition; hold
or preserve in any particular state or condition; keep;
keep from change; keep from falling, declining, or ceas-
ing; keep in existence or continuance; keep in force;
keep in good order ; keep in proper condition ; keep in
repair; keep up; preserve; preserve from lapse, decline,
failure, or cessation; provide for; rebuild; repair ; re-
place; supply with means of support; supply with what
is needed; support; sustain; uphold. Negatively stated,
it is defined as not to lose or surrender; Rot to suffer or
fail or decline. Tennessee Electric Power Co. v. White
County, C.C.A.Tenn., 52 F.2d 1065, 1066; Maryland Cas-
ualty Co. v. City of Seattle, 11 Wash.2d 69, 118 P.2d 416,
418; State ex rel. Rose Bros. Lumber & Supply Co. v.
Clousing, 198 Minn. 35, 268 N.W. 844 ; City of New York
v. Long Island , R. Co., 289 N.Y.S. 217, 219, 248 App.Div.
820; Owens v. Greenville News-Piedmont, D.C.S.C., 43
F.Supp. 785, 789; In re Klein, D.C.Minn., 9 F.Supp. 57, 58;
Ponsler v. Union Traction Co. of Indiana, 76 Ind.App.
616, 132 N.E. 708, 709.
To "maintain" a suit is to uphold, continue on foot, and
keep from collapse a suit already begun, or to prosecute
a suit with effect. George Moore Ice Cream Co. v. Rose,
Ga., 53 S.Ct. 620, 289 U.S. 373, 77 L.Ed. 1265. To main-
tain an action or suit may mean to commence or institute
it; the term imports the existence of a cause of action.
Boutiller v. The Milwaukee, 8 Minn. 105, (Gil. 80, 81).
Maintain, however, is applied to actions already brought,
but not yet reduced to judgment, Bruenn v. North Yakima
School Dist. No. 7, Yakima County, 101 Wash. 374, 172 P.
569, 571; Smallwood v. Gallardo, 48 S.Ct. 23, 275 U.S. 56,
72 L. Ed. 152. In this connection it means to continue or
preserve in or with; to carry on. In re Charles Nelson
Co., D.C.Ca1., 294 F. 926, 928; Roullard v. Gray, 38 Cal.
App. 79, 175 P. 479, 480.
The words "maintains" and "maintaining" in statutes
denouncing maintenance of a liquor nuisance denote con-
tinuous or recurrent acts approaching permanence. Keeth
v. State, 193 Ind. 549, 139 N.E. 589, 590; the term "main-
taining government" means providing money to enable
government to perform duties which it is required by law
to perform. Winebrenner v. Salmon, 155 Md. 563, 142 A.
723, 725.
To "maintain an airport" is to keep it in state of efficien-
cy for the furnishing of those facilities and the rendition of
MAIN SEWER. That portion of sewers which
serves as outlet for laterals. Boswell v. Cham-
bless, 189 Okl. 112, 113 P.2d 832, 834.
MAIN STAIRWAY in tenement houses means
staircase designated as main stairway by building
commissioner. Steele v. Lifland, 265 Mass. 233,
163 N.E. 898.
MAINAD. In old English law. A false oath; per-
jury. Cowell. Probably from Sax. "manath" or
"mainath" a false or deceitful oath.
MAIN-A-MAIN. Immediately. Kelham.
MAINE-PORT. A small tribute, commonly of
loaves of bread, which in some places the parishion-
ers paid to the rector in lieu of small tithes. Cow-
ell.
MAINLY. Principally, chiefly, in the main. Mc-
Gill v. Baumgart, 233 Wis. 86, 288 N.W. 799, 802.
MAINOUR. In criminal law. An article stolen,
when found in the hands of the thief.
A thief caught with the stolen goods in his possession
is said to be taken "with the mainour," that is, with the
property in manu, in his hands. 4 Bl.Comm. 307.
The word seems to have corresponded 'with the Saxon
"handhabend," (q. v.). In modern law it has sometimes
been written as an English word "manner," and the ex-
pression "taken in the manner" occurs in the books.
Crabb, Eng. Law, 154.
MAINOVRE, or 1VIA,INCEUVRE. A trespass com-
mitted by hand. See 7 Rich. II. c. 4.
Black's Law Dictionary Revised 4th Ed.-70
MAINTAIN
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MAINTAINED
those services which air transportation and communication
demand. Concordia-Arrow Flying Service Corporation v.
City of Concordia, 131 Kan. 247, 289 P. 955, 957.
MAINTAINED. Carried on, kept possession of,
F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127
So. 534, 536. To hold possession of; to keep ef-
fectively; commenced. Ricciardi v. Lazzara Bak-
ing Corporation, D.C.N.J., 32 F.Supp. 956, 958.
In pleading. A technical word indispensable in an in-
dictment for maintenance. 1 Wils. 325.
MAINTAINOR. In criminal law. One that main-
tains or seconds a cause depending in suit between
others, either by disbursing money or making
friends for either party towards his help. Blount.
One who is guilty of maintenance ( q. v.).
MAINTENANCE. Act of maintaining, keeping
up, supporting; livelihood; means of sustenance.
Federal Land Bank of St. Louis v. Miller, 184 Ark.
415, 42 S.W.2d 564, 566.
The upkeep, or preserving the condition of property to
be operated. ,Orleans Parish School Board v. Murphy, 156
La. 925, 101 So. 268, 269.
Sustenance; support; assistance; aid. The furnishing
by one person to another, for his support, of the means
of living, or food, clothing, shelter, etc., particularly where
the legal relation of the parties is such that one is bound
to support the other, as between father and child, or hus-
band and wife. State ex rel. Blume v. State Board of
Education of Montana, 97 Mont. 371, 34 P.2d 515, 519.
The supplying of the necessaries of life. Federal Land
Bank of St. Louis v. Miller, 184 Ark. 415, 42 S.W.2d 564,
566.
Criminal law. An unauthorized and officious interference
in a suit in which the offender has no interest, to assist one
of the parties to it, against the other, with money or ad-
vice to prosecute or defend the action. Hawk.P.C. 393;
Wickham v. Conklin, 8 Johns. (N.Y.) 220.
Roads. "Maintenance" of public roads and highways
includes all necessary powers to provide and keep up a
system of highways. Handy v. Johnson, D.C.Tex., 51 F.2d
809, 813.
Sick or injured seaman. "Maintenance" to which such
seaman is entitled means food and lodging. Fegan v.
Lykes Bros. S. S. Co., La.App., 195 So. 392, 398; Socony
Vacuum Oil Co. v. Premeaux, Tex.Civ.App., 187 S.W.2d
690, 695.
Suits. A layman's furnishing money to permit a lawyer
to provide, in part, costs and expenses in carrying on liti-
gation for a third party, Kane v. Sesac, Inc., D.C.N.Y., 54
F.Supp. 853, 859; aid a party, with money or otherwise, to
prosecute or defend his suit without expectation of person-
al profit, Sampliner v. Motion Picture Patents Co., C.C.A.,
255 F. 242, 247; Whisman v. Wells, 206 Ky. 59, 266 S.W.
897, 899; contract must tend or be intended to stir up liti-
gation, multiply contentions, unsettle peace and quiet of
a community or set one neighbor against another or give
one litigant advantage over another, Fordson Coal Co. v.
Garrard, 277 Ky. 218, 125 S.W.2d 977, 981, 121 A.L.R. 841;
maintaining, supporting, or promoting the litigation of
another, Draper v. Zebec, Ind., 219 Ind. 362, 37 N.E.2d 952,
956; Wheichel v. Stennett, 192 Miss. 241, 5 So.2d 418, 420.
Malicious or officious intermeddling with a suit that does
not belong to one, by assisting either party with money or
otherwise to prosecute or defend, M Irkarian v. Bartis, 89
N.H. 370, 199 A. 573, 575; Merrell v. Stuart, 220 N.C. 326,
17 S.E.2d 458, 460; Bayard v. McLane, 3 Har. (Del.) 208;
something done which tends to obstruct court of justiceor is against good policy in tending to promote unneces-
sary litigation and is performed under a bad motive, Ford-
son Coal Co. v. Garrard, 277 Ky. 218, 125 S.W.2d 977, 981,
121 A.L.R. 841; unlawful taking in hand or upholding of
quarrels or sides to the disturbance or hindrance of com-
mon right. Fordson Coal Co. v. Garrard, 277 Ky. 218, 125
S.W.2d 977, 981, 121 A.L.R. 841; Richardson v. Rowland,
40 Conn. 570.
MAINTENANCE ASSESSMENT. One for pur-
pose of keeping an improvement in working order.
University Nat. Co. v. Grays Harbor County, 12
Wash.2d 549, 122 P.2d 501, 502.
MAIOR. An old form of "mayor."
MAIRE. In French law. A mayor.
In old Scotch law. An officer to whom process was
directed. Otherwise called "mair of fie" (fee), and
classed with the "serjand." Skene.
MAIRIE. In French law. The government build-
ing of each commune. It contains the record of-
fice of all civil acts and the list of voters; and it
is there that political and municipal elections take
place. Arg.Fr.Merc.Law, 566.
MAISON DE DIEU. Fr. A hospital; an alms-
house; a monastery. St. 39 Eliz. c. 5. Literally,
"house of God."
MAISTER. An old form of "master."
MAISUR,A. A house, mansion, or farm. Cowell.
MAITRE. Fr. In French maritime law. Master;
the master or captain of a vessel. Ord.Mar. liv. 2,
tit. 1, art. 1.
MAJESTAS. Lat. In Roman law. The maje—sfy,
sovereign authority, or supreme prerogative of the
state or prince.
Also a shorter form of the expression "crimen majesta-
tis," or "crimen lcesce majestatis," an offense against sov-
ereignty, or against the safety or organic life of the Ro-
man people; i. e.„ high treason.
MAJESTY. Royal dignity. A term used of kings
and emperors as a title of honor.
MAJOR. A minor emancipated by marriage.
Rice v. Kansas City Southern Ry. Co., La.App.,
194 So. 444, 447. A person of full age; one who
is no longer a minor; one who has attairred the
management of his own concerns and the enjoy-
ment of his civic rights.
Greater or larger. Zenith Radio Distributing
Corporation v. Mateer, 311 Ill.App. 263, 35 N.E.2d
815, 816.
Military law. The officer next in rank above a
captain.
MAJOR AND MINOR FAULT RULE. Vessel guil-
ty of gross fault has burden of showing that oth-
er vessel committed a plain fault. General Sea-
foods Corporation v. J. S. Packard Dredging Co.,
C.C.A.Mass., 120 F.2d 117, 119, 120. Where fault on
part of one vessel is established by uncontradicted
testimony and such fault is, of itself, sufficient to
account for the disaster, it is not enough for such
vessel to raise a doubt with regard to management
of other vessel and any reasonable doubt with re-
gard to propriety of conduct of such other vessel
should be resolved in its favor. Intagliata v. Ship-
owners & Merchants T vvboat Co., 26 Ca1.2d 365,
159 P.2d 1, 10; General Seafoods Corporation v.
J. S. Packard Dredging Co., C.C.A.Mass., 120 F.2d
117, 119, 120.
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MAKE
MAJOR ANNUS. The greater year; the bissextile
year, consisting of 366 days. Bract. fol. 359b.
MAJOR CONTINET IN SE MINUS. The greater
includes the less. 19 Vin.Abr. 379.
MAJOR GENERAL. In military law. An officer
next in rank above a brigadier general, and next
below a lieutenant general, and who usually com-
mands a division or an army corps.
MAJOR ILEREDITAS VENIT UNICUIQUE NOS-
TRUM A JURE ET LEGIBUS QUAM A PAREN-
TIBUS. 2 Inst. 56. A greater inheritance comes
to every one of us from right and the laws than
from parents.
MAJOR NUMERUS IN SE CONTINET MINOR-
EM. Bract. fol. 16. The greater number contains
in itself the less.
MAJORA REGALIA. The king's dignity, power,
and royal prerogative, as opposed to his revenue,
which is comprised in the minora regalia. 2 Steph.
Comm. 475; 1 Bl.Comm. 240.
MAJORE PCENA AFFECTUS QUAM LEGIBUS
STATUTA EST, NON EST INFAMIS. One af-
fected with a greater punishment than is provided
by law is not infamous. 4 Inst. 66.
MAJORES.
Old English law. Greater persons; persons of
higher condition or estate.
Roman law and genealogical tables. The male as-
cendants beyond the sixth degree.
MAJORI SUMMZE MINOR INEST. In the greater
sum the less is included. 2 Kent, Comm. 618;
Story, Ag. § 172.
MAJORITY. Full age; the age at which, by law,
a person is entitled to the management of his own
affairs 'and to the enjoyment of civic rights. The
opposite of minority. Also the status of a person
who is a major in age.
The greater number.
The number greater than half of any total. Ap-
plication of McGovern, 44 N.Y.S.2d 132, 137, 180
Misc. 508.
Elections. Majority signifies the greater num-
ber of votes. In re Todd, 208 Ind. 168, 193 N.E.
865.
When there are only two candidates, he who receives
the greater number of the votes cast is said to have a ma-
jority; when there are more than two competitors for the
same office, the person who receives the greatest number
of votes has a plurality, but he has not a majority unless
he receives a greater number of votes than those cast for
all his competitors combined.
It relates to voters voting at election, not those qualified
and not voting. Hevelone v. City of Beatrice, 120 Neb. 648,
234 N.W. 791, 795.
Military affairs. Majority denotes the rank and
commission of a major.
MAJORITY OF QUALIFIED ELECTORS. Refers
to those who actually vote on election day. Harris
v. Baden, 154 Fla. 373, 17 So.2d 608, 609.
MAJORITY OF STOCKHOLDERS. A majority in
interest of the stockholders, and not a majority in
number only. Bank of Los Banos v. Jordan, 139
P. 691, 167 Cal. 327. "Majority of stockholders"
means majority per capita when the right to vote
is per capita, and a majority of stock when each
share of stock is entitled to a vote, each particular
case being determined by provisions of charter reg-
ulating voting. Simon Borg & Co. v. New Orleans
City R. Co., D.C.La., 244 F. 617, 619.
MAJORITY RULE. Rule by the choice of the ma-
jority of those who actually vote, irrespective of
whether a majority of those entitled participate.
N. L. R. B. v. Standard Lime & Stone Co., C.C.A.4,
149 F.2d 435, 437.
MAJORITY VOTE. Where question is required
to be submitted at certain regular election and
is made to depend on "majority of votes" cast
at "such election," a majority of all votes cast at
election is meant, and not merely majority of
votes cast on that particular question. In re Todd,
208 Ind. 168, 193 N.E. 865.
Where legislative body provides that proposition
shall be submitted to voters and those in favor
of proposition shall cast affirmative vote, while
those opposed shall cast negative vote, and that
"majority of votes" given shall be requisite to
adoption of measure, only votes to be counted in
determining whether measure was adopted are
those given on particular question involved. In
re Todd, 208 Ind. 168, 193 N.E. 865.
MAJUS DIGNUM TRAHIT AD SE MINUS DIG-
NUM. The more worthy draws to itself the less
worthy. Co.Litt. 43, 355b; Bract. fol. 175; Noy,
Max. p. 6, 'max. 18.
MAJUS EST DELICTUM SEIPSUM OCCIDERE
QUAM ALIUM. It is a greater crime to kill one's
self than another. Bart.Max. 108. See Suicide.
MAJUS JUS. In old practice, greater right or
more right. A plea in the old real actions. 1
Reeve, Eng.Law, 476. Majus jus merum, more
mere right. Bract. fol. 31.
A writ proceeding in some customary manors
to try a right to land. Cow.
MAJUS LATIUM. See Jus Latium.
MAKE. To cause to exist. United States v. Giles,
Tex., 57 S.Ct. 340, 344, 300 U.S. 41, 81 L.Ed. 493.
To form, fashion, or produce; to do, perform, or
execute; as to make an issue, to make oath, to
make a presentment.
To do in form of law; to perform with due for-
malities; to execute in legal form; as to make an-
swer, to make a return or report. Ex parte Lock-
hart, 72 Mont. 136, 232 P. 183, 185.
To execute as one's act or obligation; to prepare
and sign; to issue; to sign, execute, and deliver;
as to make a conveyance, to make a note. Hein-
bach v. Heinbach, 274 Mo. 301, 202 S.W. 1123, 1130;
Spaulding v. First Nat. Bank, 205 N.Y.S. 492, 493,
210 App.Div. 216.
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MAKE
To conclude, determine upon, agree to, or exe-
cute; as to make a contract. Maclntyre v. Mc-
Lean, 162 Ga. 280, 133 S.E. 471, 475. Tourtlott v.
West Bangor & Hermon Mut. Fire Ins. Co., 126
Me. 118, 136 A. 481, 482.
To cause to happen by one's neglect or omission;
as to make default.
To make acquisition of; to procure; to collect;
as to make the money on an execution or to make
a loan. Fidelity Trust Co. v. Fowler, Tex.Civ.App.,
217 S.W. 953, 954.
To have authority or influence; to support or
sustain; as in the phrase, "This precedent makes
for the plaintiff."
MAKE AN ASSIGNMENT. To transfer one's
property to an assignee for the benefit of one's
creditors.
MAKE AN AWARD. To form and publish a judg-
ment on the facts. Hoff v. Taylor, 5 N.J.Law,
833.
MAKE A CONTRACT. To agree upon, and. con-
clude or adopt, a contract. In case of a written
contract, to reduce it to writing, execute it in due
form, and deliver it as binding.
MAKE DEFAULT. To fail or be wanting in some
legal duty; particularly to omit the entering of an
appearance when duly summoned in an action at
law or other judicial proceeding, to neglect to obey
the command of a subpoena, etc.
MAKE ONE'S FAITH. A Scotch phrase, equiva-
lent to the old English phrase, "to make one's
law."
MAKER. One who makes, frames, or ordains; as
a "law-maker." One who makes or executes; as
the maker of sa promissory note. See Aud v. Mag-
ruder, 10 Cal. 290; Sawyers v. Campbell, 107 Iowa
397, 78 N.W. 56.
Accommodation maker. See Accommodation.
MAKING LAW. In old practice, the formality of
denying a plaintiff's charge under oath, in open
court, with compurgators. One of the ancient
methods of trial, frequently, though inaccurately,
termed "waging law," or "wager of law." 3 Bl.
Comm. 341.
MAL. A prefix meaning bad, wrong, fraudulent;
as maladministration, malpractice, malversation,
etc.
MAL GREE. L. Fr. Against the will; without
the consent. Hence the single word "malgre," and
more modern "maugre," (q. v.).
MAL-TOLTE. Fr. In old French law, a term said
to have arisen from the usurious gains of the Jews
and Lombards in their management of the public
revenue. Steph.Lect. 372.
MALA. Lat. Bad; evil; wrongful.
MALA FIDES. Bad faith. The opposite of bona
fides (q. v.). Maid fide, in bad faith. Make fides
possessor, a possessor In bad faith. Mackeld.Rom.
Law, § 297.
MALA GRAMMATICA NON VITIAT CHARTAM.
SED IN EXPOSITIONE INSTRUMENTORUM
MALA GRAMMATICA QUOAD FIERI POSSIT
EVITANDA EST. Bad grammar does not vitiate
a deed. But in the exposition of instruments,
bad grammar, as far as it can be done, is to be
avoided. 6 Coke, 39; Broom, Max. 686.
MALA IN SE. Wrongs in themselves; acts moral-
ly wrong; offenses against conscience. 1 Bl.
Comm. 57, 58; 4 Bl.Comm. 8; Com. v. Adams, 114
Mass. 323, 19 Am.Rep. 362; Turner v. Merchants'
Bank, 126 Ala. 397, 28 So. 469.
MALA PRAXIS. Malpractice; unskillful man-
agement or treatment. Particularly applied to the
neglect or unskillful management of a physician,
surgeon, or apothecary. 3 Bl.Comm. 122.
MALA PROHIBITA. Prohibited wrongs or offens-
es; acts which are made offenses by positive laws,
and prohibited as such. 1 Bl.Comm. 57, 58; 4 Bl.
Comm. 8.
MALADMINISTRATION. This term is used, in
the law-books, interchangeably with misadminis-
tration, and both words mean "wrong administra-
tion." Minkler v. State, 14 Neb. 183, 15 N.W. 331.
MALANDRINUS. In old English law, a thief or
pirate. Wals. 338.
MALARY. In Hindu law, judicial; belonging to
a judge or magistrate.
MALBERGE. A hill where the people assembled
at a court, like the English assizes; which by the
Scotch and Irish were called "parley hills." Du
Cange.
MALCONDUCT. Ill conduct, especially dishonest
conduct, maladministration, or, as applied to of-
ficers, official misconduct. Sausbier v. Wheeler,
299 N.Y.S. 466, 473, 252 App.Div. 267.
MALCONNA. In Hindu law, a treasury or store-
house.
MALE. Of the masculine sex; of the sex that be-
gets young.
MALE CREDITUS. In old English law, unfavor-
ably thought of; in bad repute or credit. Bract.
fols. 116, 154.
MALEDICTA EST EXPOSITIO QUIE CORRUM-
PIT TEXTUM. That is a cursed interpretation
which corrupts the text. 4 Coke, 35a; Broom,
Max. 622.
MALEDICTION. A curse, which was anciently
annexed to donations of lands made to churches
or religious houses, against those who should vio-
late their rights. Cowell.
MALEFACTION. A crime; an offense.
MALEFACTOR. He who is guilty, or has been
convicted, of some crime or offense.
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MALICE
MALEFICIA NON DEBENT REMANERE IM-
PUNITA; ET IMPUNITAS CONTINUUM AF-
FECTUM TRIBUIT DELINQUENTI. 4 Coke, 45.
Evil deeds ought not to remain unpunished; and
impunity affords continual incitement to the de-
linquent.
MALEFICIA PROPOSITIS DISTINGUUNTUR.
Jenk.Cent. 290. Evil deeds are distinguished from
evil purposes, or by their purposes.
MALEFICIUM. In the civil law, waste; damage;
tort; injury. Dig. 5, 18, 1.
MALESON, or MALISON. A curse.
MALESWORN, or MALSWORN. Forsworn.
Cowell.
MALFEASANCE. Evil doing; ill conduct; the
commission of some act which is positively unlaw-
ful; the doing of an act which is wholly wrongful
and unlawful; the doing of an act which person
ought not to do at all or the unjust performance of
some act which the party had no right or which
he had contracted not to do. Comprehensive term
including any wrongful conduct that affects, in-
terrupts or interferes with the performance of offi-
cial duties. State ex rel. Knabb v. Frater, 198
Wash. 675, 89 P.2d 1046, 1048.
It differs from "misfeasance" and "non-feas-
ance," (which titles see.) See 1 Chit.Pr. 9; 1 Chit.
Pl. 134; Dudley v. Flemingsburg, 72 S.W. 327, 115
Ky. 5, 60 L.R.A. 575, 103 Am.St.Rep. 253.
MALFETRIA. In Spanish law, offense. White,
New Recop. b. 2, tit. 19, c. 1, § 1.
MALICE. The intentional doing of a wrongful
act without just cause or excuse, with an intent
to inflict an injury or under circumstances that the
law will imply an evil intent. Luikart v. Miller,
Mo., 48 S.W.2d 867, 871. Cottle v. Johnson, 179
N.C. 426, 102 S.E. 769, 770.
A conscious violation of the law (or the prompt-
ing of the mind to commit it) which operates to
the prejudice of another person. Seaboard Air
Line Ry. Co. v. Glenn, 213 Ala. 284, 104 So. 548,
549. A condition of the mind showing a heart
regardless .of social duty and fatally bent on mis-
chief. Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.
2d 1105, 1109, 1110.
In murder, that condition of mind which prompts one to
take the life of another without just cause or provocation.
State v. Smith, 26 N.M. 482, 194 P. 869, 870; State v.
Moynihan, 93 N.J.L. 253, 106 A. 817, 818; a willful or cor-
rupt intention of the mind. Pembrook v. State, 117 Neb.
759, 222 N.W. 956. It includes not only anger, hatred and
revenge, but also every other unlawful and unjustifiable
motive. State v. Scherr, 243 Wis. 65, 9 N.W.2d 117, 119.
"Malice," in its common acceptation, means ill will to-
wards some person. In its legal sense, it applies to a
wrongful act done intentionally, without legal justificat
-tion or excuse. Dunn v. Hall, 1 Ind. 344.
It includes intent and will. State v. Robbins, 66 Me. 328.
"Malice" in law is not necessarily personal hate or ill
will, but it is that state of mind which is reckless of law
and of the legal rights of the citizen. Evers-Jordan Fur-
niture Co. v. Hartzog, 237 Ala. 407, 187 So. 491, 493.
"Malice," in legal sense, characterizes all acts done with
an evil disposition, a wrong and unlawful motive or pur-
pose, or the willful doing of an injurious act without a
lawful excuse. Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538,
542.
In libel and slander, as to privileged communi-
cations, "malice" involves an evil intent or motive
arising from spite or ill will; personal hatred or
ill will; or culpable recklessness or a willful and
wanton disregard of the rights and interests of the
person defamed. McDonald v. Brown, 23 R.I. 546,
51 A. 213, 58 L.R.A. 768, 91 Am.St.Rep. 659; Cherry
v. Des Moines Leader, 86 N.W. 323, 114 Iowa 298,
54 L.R.A. 855, 89 Am.St.Rep. 365.
In a libel case it consists in intentionally publishing,
without justifiable cause, any written or printed matter
which is injurious to the character of another. Becker v.
Brinkop, 230 Mo.App. 871, 78 S.W.2d 538, 541. And in a
legal sense, as an ingredient of actions for slander or libel,
it signifies nothing more than a wrongful act done inten-
tionally, without just cause or excuse. Ambruster v. Na-
tional Bank of Westfield, 116 N.J.L. 122, 182 A. 613, 614.
In the law of malicious prosecution, it means
that the prosecution was instituted primarily be-
cause of a purpose other than that of bringing an
offender to justice. Brown v. Kisner, 192 Miss.
746, 6 So.2d 611, 617.
Actual malice. Express malice, or malice in
fact. Gee v. Culver, 13 Or. 598, 11 P. 302; Eteen-
pain Co-op. Soc. v. Lillback, C.C.A.Mass., 18 F.2d
912, 917.
Constructive malice. Implied malice; malice in-
ferred from acts; malice imputed by law; malice
which is not shown by direct proof of an intention
to do injury, (express malice,) but which is infer-
entially established by the necessarily injurious re-
sults of the acts shown to have been committed.
State v. Harrigan, 31 Atl. 1052, 9 Houst. (Del.)
369; Caldwell v. Raymond, 2 Abb.Prac. (N.Y.) 196.
Express malice. Actual malice; malice in fact;
ill will or wrongful motive; a deliberate intention
to commit an injury, evidenced by external cir-
cumstances. Sparf v. U. S., 15 S.Ct. 273, 156 U.S.
51, 39 L.Ed. 343; Weir v. McEwan, 94 N.J.L. 92,
109 A. 355, 356; People v. Scalisi, 324 Ill. 131, 154
N.E. 715, 722.
General malice. General malice is wickedness,
a disposition to do wrong, a "black and diabolical
heart, regardless of social duty and fatally bent on
mischief." Neal v. Nelson, 117 N.C. 393, 23 S.E.
428, 53 Am.St.Rep. 590.
Implied malice. Malice inferred by legal reason-
ing and necessary deduction from the res gestce
or the conduct of the party. Malice inferred from
any deliberate cruel act committed by one person
against another, however sudden. Whart.Hom.
38. What is called "general malice" is often thus
inferred. Sparf v. U. S., 15 S.Ct. 273, 156 U.S. 51,
39 L.Ed. 343.
Legal malice. See Legal Malice.
Particular malice. Malice directed against a
particular individual; ill will; a grudge; a de-
sire to be revenged on a particular person. Brooks
v. Jones, 33 N.C. 261; State v. Long, 117 N.C. 791,
23 S.E. 431.
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MALICE
Preconceived malice. Malice prepense or afore-
thought. See State v. Reidell, 9 Houst. (Del.) 470,
14 A. 550.
Premeditated malice. An intention to kill un-
lawfully, deliberately formed in the mind as the
result of a determination meditated upon and fixed
before the act. State v. Gin Pon, 16 Wash. 425,
47 P. 961; State v. Rutten, 13 Wash. 211, 43 P.
30.
Special malice. Particular or personal malice;
that is, hatred, ill will, or a vindictive disposition
against a particular individual.
Universal malice. By this term is not meant a
malicious purpose to take the life of all persons,
but it is that depravity of the human heart which
determines to take life upon slight or insufficient
provocation, without knowing or caring who may
be the victim. Mitchell v. State, 60 Ala. 30.
MALICE AFORETHOUGHT. A predetermination
to commit an act without legal justification or ex-
cuse. Harrison v. Commonwealth, 279 Ky. 510, 131
S.W.2d 454, 455. A malicious design to injure.
State v. Thomas, 157 Kan. 526, 142 P.2d 692, 693.
In the definition of "murder," malice aforethought exists
where the person doing the act which causes death has an
intention to cause death or grievous bodily harm to any
person, (whether the person is actually killed or not) or
to commit any felony whatever, or has the knowledge that
the act will probably cause the death of or grievous bodily
harm to some person, although he does not desire it, or
even wishes that it may. not be caused. Steph.Crim.Dig.
144; 1 Russ.Crimes. 641. The words "malice afore-
thought" long ago acquired in law a settled meaning,
somewhat different from the popular one. In their legal
sense they do not import an actual intention to kill the
deceased. The idea is not spite or malevolence to the de-
ceased in particular, but evil design in general, the dictate
of a wicked, depraved, and malignant heart ; not premedi-
tated personal hatred or revenge towards the person killed,
but that kind of unlawful purpose which, if persevered in,
must produce mischief. State v. Pike, 49 N.H. 399, 6 Am.
Rep. 533.
MALICE IN FACT. Express or actual malice.
Railway Co. v. Behee, 2 Tex.Civ.App. 107, 21 S.W.
384, Hotchkiss v. Porter, 30 Conn. 414.
It implies desire or intent to injure, while "malice in
law," or "implied malice," means wrongful act done in-
tentionally, without just cause or excuse, and jury may in-
fer it as a deduction from want of probable cause. Glie-
berman v. Fine, 248 Mich. 8, 226 N.W. 669, 670.
MALICE IN LAW. The intentional doing of a
wrongful act without just cause or excuse. Lyons
v. St. Joseph Belt Ry. Co., Mo.App., 84 S.W.2d
933, 944. Implied, inferred, or legal malice.
Smith v. Rodecap, 5 Ind.App. 78, 31 N.E. 479;
Bacon v. Railroad Co., 66 Mich. 166, 33 N.W. 181.
As distinguished from malice in fact, it is presumed from
tortious acts, deliberately done without just cause, excuse,
or justification, which are reasonably calculated to injure
another or others. Betts v. Jones, 208 N.C. 410, 181 S.E.
334.
MALICE PREPENSE. Malice aforethought; de-
liberate, predetermined malice. 2 Rolle, 461.
MALICIOUS. Characterized by, or involving, mal-
ice; having, or done with, wicked or mischievous
intentions or motives; wrongful and done inten-
tionally without just cause or excuse. People v.
Knapp, 274 N.Y.S. 85, 152 Misc. 368.
In its broad sense it does not necessarily mean ill will
or hatred. In a legal sense, any act done willfully and
purposely to the prejudice and injury of another, which is
unlawful, is, as against that person, "malicious." Pollard
v. Phelps, 56 Ga.App. 408, 193 S.E. 102, 108.
MALICIOUS ABANDONMENT. In criminal law,
the desertion of a wife or husband without just
cause.
MALICIOUS ABUSE OF LEGAL PROCESS.
Willfully misapplying court process to obtain ob-
ject not intended by law. Atlanta Finance Co. v.
Cain, 42 Ga.App. 819, 157 S.E. 337.
The willful misuse or misapplication of process to ac-
complish a purpose not warranted or commanded by the
writ ; the malicious perversion of a regularly issued pro-
cess, whereby a result not lawfully or properly obtained on
a writ is secured; not including cases where the process
was procured maliciously but not abused or misused after
its issuance. King v. Yarbray, 136 Ga. 212 (1), 71 S.E. 131.
MALICIOUS ACCUSATION. Procuring accusa-
tion or prosecution of another from improper mo-
tive and without probable cause. McKenzie v.
State, 113 Neb. 576, 204 N.W. 60, 63.
MALICIOUS ACT. A wrongful act intentionally
done without legal justification or , excuse; an un-
lawful act done willfully or purposely to injure
another. La Plante v. Johnson, 297 N.Y.S. 318,
321, 163 Misc. 96.
MALICIOUS ARREST. An arrest made willfully
and without probable cause, but in the course of
a regular proceeding.
MALICIOUS INJURY. An injury committed
against a person at the prompting of malice or
hatred towards him, or done spitefully or wanton-
ly. State v. Huegin, 110 Wis. 189, 85 N.W. 1046,
62 L.R.A. 700; Wing v. Wing, 66 Me. 62, 22 Am.
Rep. 548.
The willful doing of an act with knowledge it
is liable to injure another and regardless of con-
sequences. In re Kalk, D.C.N.Y., 270 F. 627, 629.
Injury involving element of fraud, violence, wan-
tonness and willfulness, or criminality. Braxton
v. Matthews, 199 N.C. 484, 154 S.E. 735.
An injury that is intentional, wrongful and with-
out just cause or excuse, even in the absence of
hatred, spite or ill will. Panchula v. Kaya, 59 Ohio
App. 556, 18 N.E.2d 1003, 1005.
MALICIOUS KILLING. Any intentional killing
without a legal justification or excuse and not
within the realm of voluntary manslaughter.
State v. Cope, 78 Ohio App. 429, 67 N.E.2d 912, 920.
MALICIOUS MISCHIEF. Willful destruction of
personal property, from actual ill will or resent-
ment towards its owner or possessor. People v.
Petheram, 31 N.W. 188, 64 Mich. 252; First Nat.
Bank v. Burkett, 101 Ill. 394, 40 Am.Rep. 209;
State v. Waltz, 158 Iowa 191, 139 N.W. 458, 459.
Though only a trespass at the common law, it is
now, by several statutes, made severely penal.
Jacob.
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MALTREATMENT
MALICIOUS MOTIVE. Any motive for instituting
a prosecution, other than a desire to bring an offen-
der to justice. Lounder v. Jacobs, 119 Colo. 511, 205
P.2d 236, 238.
MALICIOUS PROSECUTION. One begun in mal-
ice without probable cause to believe the charges
can be sustained. Eustace v. Dechter, 28 Cal.App.
2d 706, 83 P.2d 523, 525. Instituted with intention
of injuring defendant and without probable cause,
and which terminates in favor of the person pros-
ecuted. For this injury an action on the case lies,
called the "action of malicious prosecution." Hicks
v. Brantley, 29 S.E. 459, 102 Ga. 264; Eggett v.
Allen, 96 N.W. 803, 119 Wis. 625.
MALICIOUS TRESPASS. The act of one who ma-
liciously or mischievously injures or causes to be
injured any property of another or any public
property. State v. McKee, 109 Ind. 497, 10 N.E.
405; Hannel v. State, 4 Ind.App. 485, 30 N.E. 1118.
MALICIOUS USE OF PROCESS. Exists where
plaintiff proceeds maliciously and without probable
cause to execute object which law intends proc-
ess to subserve. Davison-Paxon Co. v. Walker,
45 Ga.App. 395, 165 S.E. 160, 163.
MALICIOUSLY. Imports a wish to vex, annoy, or
injure another, or an intent to do a wrongful act,
and may consist in direct intention to injure, or in
reckless disregard of another's rights. Briggs v.
Coykendall, 57 N.D. 785, 224 N.W. 202, 205.
MALICIOUSNESS. "Maliciousness" does not nec-
essarily mean actual malice or ill will, but inten-
tional doing of a wrongful act without legal or
social justification. Dorrington v. Manning, 135
Pa.Super. 194, 4 A.2d 886, 890. '
MALIGNARE. To malign or slander; also to
maim.
MALINGER. To feign sickness or any physical
disablement or mental lapse or derangement, es-
pecially for the purpose of escaping the perform-
ance of a task, duty, or work.
MALITIA. Lat. Actual evil design; express mal-
ice.
MALITIA EST ACIDA; EST MALI ANIMI AF-
FECTUS. Malice is sour; it is the quality of a
bad mind. 2 Bulst. 49.
MALITIA PR/ECOGITATA. Malice aforethought.
MALITIA SUPPLET ZETATEM. Malice supplies
[the want of] age. Dyer, 104b; Broom Max. 316.
MALITHS HOMINUM EST OBVIANDUM. The
wicked or malicious designs of men must be
thwarted. 4 Coke, 15b.
MALLEABLE. Capable of being drawn out and
extended by beating; capable of extension by ham-
mering; reducible to laminated form by beating.
Farris v. Magone, C.C.N.Y., 46 F. 845.
MALLUM. In old European law, a court of the
higher kind in which the more important business
of the county was dispatched by the count or earl.
Spelman. A public national assembly.
MALO ANIMO. Lat. With an evil mind; with a
bad purpose . or wrongful intention; with malice.
MALO GRATO. Lat. In spite; unwillingly.
MALO SENSU. Lat. In, an evil sense or mean-
ing; with an evil signification.
MALPRACTICE. Any professional misconduct,
unreasonable lack of skill or fidelity in professional
or fiduciary duties, evil practice, or illegal or im-
moral conduct. Gregory v. McInnis, 140 S.C. 52,
134 S.E. 527, 529.
As applied to physicians and surgeons, this term means,
generally, professional misconduct towards a patient
which is considered reprehensible either because immoral
in itself or because contrary to law for expressly forbidden
by law.
In a more specific sense, it means bad, wrong, or in-
judicious treatment of a patient, professionally and in re-
spect to the particular disease or injury, resultin g. in in-
jury, unnecessary suffering, or death to the patient, and
proceeding from ignorance, carelessness, want of proper
professional skill, disregard of established rules or prin-
ciples, neglect, or a malicious or criminal intent. Rodgers
v. Kline, 56 Miss. 816, 31 Am.Rep. 389; Hibbard v. Thomp-
son, 109 Mass. 288; Napier v. Greenzweig, C.C.A.N.Y., 256
F. 196, 197.
The term is occasionally applied to lawyers, and then
means generally any evil practice in a professional capac-
ity, but rather with reference to the court and its practice
and process than to the client. In re Baum, 8 N.Y.S. 771,
55 Hun, 611; Cowley v. O'Connell, 54 N.E. 558, 174 Mass.
253.
MALT. A substance produced from barley or oth-
er grain by a process of steeping in water until ger-
mination begins and then drying in a kiln, thus
converting the starch into saccharine matter. Hol-
lender v. Magone, C.C.N.Y., 38 F. 915; U. S. v.
Cohn, 52 S.W. 38, 2 Ind.T. 474.
MALT BEVERAGES. Consists of beer, ale, por-
ter, and the like, and do not include distilled al-
coholic beverages, or fermented juices from
grapes, fruits, and berries. McCaffrey v. State,
183 Ga. 827, 189 S.E. 825, 826.
MALT LIQUOR. A general term including all
alcoholic beverages prepared essentially by the
fermentation of an infusion of malt (as distin-
guished from such liquors as are produced by the
process of distillation), and particularly such bev-
erages as are made from malt and hops, like
beer, ale, and porter. Allred v. State, 89 Ala. 112,
8 So. 56; State v. Gill, 89 Minn. 502, 95 N.W. 449;
Claunch v. State, 82 Tex.Cr. 355, 199 S.W. 483, 484.
MALT MULNA. A quern or malt-mill.
MALT-SHOT, or MALT-SCOT. A certain pay-
ment for making malt. Somner.
MALT-TAX. An excise duty upon malt in Eng-
land. 1 Bl.Comm. 313; 2 Steph.Comm. 581.
MALTOTE. In French history, an oppressive tax
levied in 1292 and later. Cassell's New Fr. Dict.
MALTREATMENT. In reference to the treatment
of his patient by a surgeon, this term signifies
improper or unskillful treatment; it may result

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IVIALUM
either from ignorance, neglect, or willfulness; but
the word does not necessarily imply that the con-
duct of the surgeon, in his treatment of the patient,
is either willfully or grossly careless. Com. v.
Hackett, 2 Allen (Mass.) 142.
MALUM, n. Lat. In Roman law, a mast; the
mast of a ship. Dig. 50, 17, 242, pr. Held to be
part of the ship. Id.
MALUM, adj. Lat. Wrong; evil; wicked; repre-
hensible.
MALUM IN SE. A wrong in itself; an act or case
involving illegality from the very nature of the
transaction, upon principles of natural, moral,
and public law. Story, Ag. § 346. State v. She-
doudy, 45 N.M. 516, 118 P.2d 280, 287.
An act is said to be ma/um in se when it is inherently
and essentially evil, that is, immoral in its nature and in-
jurious in its consequences, without any regard to the fact
of its being noticed or punished by the law of the state.
Such are most or all of the offenses cognizable at common
law, (without the denouncement of a statute;) as murder,
larceny, etc.
MALUM NON HABET EFFICIENTEM, SED DE-
FICIENTEM, CAUSAM. 3 Inst.Proem. Evil has
not an efficient, but a deficient, cause.
MALUM NON PRZESUMITUR. Wickedness is not
presumed. Branch, Princ.; 4 Coke, 72a.
MALUM PROBIBITUM. A wrong prohibited; a
thing which is wrong because prohibited; an act
which is not inherently immoral, but becomes so
because its commission is expressly forbidden by
positive law; an act involving an illegality result-
ing from positive law. Contrasted with malum in
se. Story, Ag. § 346; People v. Pavlic, 227 Mich.
562, 199 N.W. 373, 374, 35 A.L.R. 741.
MALUM QUO COMMUNIUS EO PEJUS. The
more common an evil is, the worse it is. Branch,
Princ.
MALUS USUS ABOLENDUS EST. A bad or in-
valid custom is [ought] to be abolished. Litt. §
212; Co.Litt. 141; 1 Bl.Comm. 76; Broom, Max.
921.
MALVEILLES. In old English law, ill will;
crimes and misdemeanors; malicious practices.
Cowell.
MALVEIS PROCURORS. L. Fr. Such as used to
pack juries, by the nomination of either party in
a cause, or other practice. Cowell.
MALVEISA. A warlike engine to batter and beat
down walls.
MALVERSATION. In French law, this word is
applied to all grave and punishable faults commit-
ted in the exercise of a charge or commission,
(office,) such as corruption, exaction, concussion,
larceny. Merl. Repert.
MAN. A human being. A person of the male sex.
A male of the human species above the age of pu-
berty.
In its most extended sense the term includes
not only the adult male sex of the human species,
but women and children.
In feudal law, a vassal; a tenant or feudatory.
The Anglo-Saxon relation of lord and man was
originally purely personal, and founded on mu-
tual contract. 1 Spence, Ch. 37.
MAN OF STRAW. See Men of Straw.
MANACLES. Chain for the hands; shackles.
MANAGE. To control and direct, to administer, to
take charge of. Fluet v. McCabe (1938), 299 Mass.
173, 12 N.E.2d 89, 93. To conduct; to carry on
the concerns of a business or establishment. Gen-
erally applied to affairs that are somewhat com-
plicated and that involve skill and judgment.
Corn. v. Johnson, 144 Pa. 377, 22 A. 703.
MANAGEMENT. Government, control, superin-
tendence, physical or manual handling or guid-
ance; act of managing by direction or regulation,
or administration, as management of family, or of
household, or of servants, or of great enterprises,
or of great affairs. Branch v. Veterans' Adminis-
tration, 189 Ark. 662, 74 S.W.2d 800, 804. Discre-
tionary power of direction; J. T. Camp Transfer
Co. v. Davenport, 15 Ala.App. 507, 74 So. 156, 159;
Browne v. City of New York, 210 N.Y.S. 786, 795,.
125 Misc. 1.
MANAGER. One who has charge of corporation
and control of its business or branch establish-
ment, and who is vested with a certain amount of
discretion and independent judgment. Braniff v.
McPherren, 177 Okl. 292, 58 P.2d 871, 872. A per-
son chosen or appointed to manage, direct, or ad-
minister the affairs of another person or of a
corporation or company. Com. v. Johnson, 144 Pa.
377, 22 A. 703. Also one of the persons appointed
on the part of the house of representatives to
prosecute impeachments before the senate.
MANAGERS OF A CONFERENCE. Members of
the houses of parliament appointed to represent
each house at a conference between the two
houses. It is an ancient rule that the number of
commons named for a conference should be double
those of the lords. May, Parl.Pr. c. 16.
MANAGING AGENT. See Agent.
MANAGING OWNER OF SHIP. The managing
owner of a ship is one of several co-owners, to
whom the others, or those of them who join in the
adventure, have delegated the management of the
ship. He has authority to do all things usual and
necessary in the management of the ship and the
delivery of the cargo, to enable her to prosecute her
voyage and earn freight, with the right to appoint
an agent for the purpose. 6 Q.B.Div. 93; Sweet.
MANAGIUM. A mansion-house or dwelling-place.
Cowell.
MANAS MEDIAE. Men of a mean condition, or
of the lowest degree.
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MANDANS
MANBOTE. In Saxon law, a compensation or re-
compense for homicide, particularly due to the
lord for killing his man or vassal, the amount of
which was regulated by that of the were.
MANCA, MANCUS, or MANCUSA. A square
piece of gold coin, commonly valued at thirty
pence. Cowell.
MANCEPS. Lat. In Roman law, a purchaser;
one who 'took the article sold in his hand; a for-
mality observed in certain sales. Calvin. A far-
mer of the public taxes.
MANCHE-PRESENT. A bribe; a present from
the donor's own hand.
MANCIPARE. Lat. In Roman law, to sell, alien-
ate, or make over to another; to sell with certain
formalities; to sell a person; one of the forms
observed in the process of emancipation.
MANCIPATE. To enslave; to bind; to tie.
MANCIPATIO. Lat. In Roman law, a certain
ceremony or formal process anciently required to
be performed, to perfect the sale or conveyance
of res mancipi, (land, houses, slaves, horses, or
cattle.)
The parties were present, (vendor and vendee,) with five
witnesses and a person called "libripens," who held a bal-
ance or scales. A set form of words was repeated on
either side, indicative of transfer of ownership, and certain
prescribed gestures made, and the vendee then struck the
scales with a piece of copper, thereby symbolizing the pay-
ment, or weighing out, of the stipulated price.
The ceremony of mancipatio was used, in later times,
in one of the forms of making a will. The testator acted
as vendor, and the heir (or familice emptor) as purchaser,
the latter symbolically buying the whole estate or succes-
sion, of the former. The ceremony was also used by a
father in making a fictitious sale of his son, which sale,
when three times repeated, effectuated the ' emancipation
of the son.
MANCIPI RES. Lat. In Roman law, certain
classes of things which could not be aliened or
transferred except by means of a certain formal
ceremony of conveyance called "mancipatio" (q.
v.) . These included land, houses, slaves, horses,
and cattle. All other things were called "res nec
mancipi."
The distinction was abolished by Justinian. The distinc-
tion corresponded as nearly as may be to the early distinc-
tion of English law into real and personal property ; res
mancipi being objects of a military or agricultural char-
acter, and res nec mancipi being all other subjects of
property. Like personal estate, res nec mancipi were not
originally either valuable in se or valued. Brown.
MANCIPIUM. Lat. In Roman law, the momen-
tary condition in which a filius, etc., might be when
in course of emancipation from the potestas, and
before that emancipation was absolutely com-
plete. The condition was not like the dominica
potestas over slaves, but slaves are frequently
called "mancipia" in the non-legal Roman authors.
Brown.
To form a clear conception of the true import of the
word in the Roman jurisprudence, it is necessary to advert
to the four distinct powers which were exercised by the
pater familias, viz.; the manus, or martial power; the
mancipium, resulting from the mancipatio, or alienatio per
vs et libram, of a freeman; the dominica potestas, the
power of the master over his slaves, and the patria potes-
tas, the paternal power. When the pater familias sold his
son, venum dare, mancipare, the paternal power was suc-
ceeded by the mancipium, or the power acquired by the
purchaser over the person whom he held in mancipio, and
whose condition was assimilated to that of a slave. What
is most remarkable is, that on the emancipation from the
mancipium he fell back into the paternal power, which was
not entirely exhausted until he had been sold three times
by the pater familias. Si pater filium ter venum dat, filius
a patre liber esto. Gaius speaks of the mancipatio as imag-
inaria qucedam venditio, because in his times it was only
resorted to for the purpose of adoption or emancipation.
See 1 Ortolan 112; Morey, Rom. L. 23, 32; Sohm, Inst. R. L.
124, 390.
MANCIPLE. A clerk of the kitchen, or caterer,
especially in colleges. Cowell.
MANCOMUNAL. In Spanish law, an obligation
is said to be mancomunal when one person as-
sumes the contract or debt of another, and makes
himself liable to pay or fulfill it. Schm.Civil Law,
120.
MANCUS. See Manca.
MANDAMIENTO. In Spanish law, commission;
authority or power of attorney. A contract of
good faith, by which one person commits to the
gratuitous charge of another his affairs, and the
latter accepts the charge. White, New Recop. b.
2, tit. 12, c. 1.
MANDAMUS. Lat. We command. This is the
name of a writ (formerly a high prerogative writ)
which issues from a court of superior jurisdiction,
and is directed to a private or municipal corpora-
tion, or any of its officers, or to an executive, ad-
ministrative or judicial officer, or to an inferior
court, commanding the performance of a particu-
lar act therein specified, and belonging to his or
their public, official, or ministerial duty, or direct-
ing the restoration of the complainant to rights
or privileges of which he has been illegally de-
prived. Lahiff v. St. Joseph, etc., Soc., 76 Conn.
648, 57 A. 692, 65 L.R.A. 92, 100 Am.St.Rep. 1012.
The action of mandamus is one, brought in a court of
competent jurisdiction, to obtain an order of such court
commanding an inferior tribunal, board, corporation, or
person to do or not to do an act the performance or omis-
sion of which the law enjoins as a duty resulting from an
office, trust, or station. Where discretion is left to the
inferior tribunal or person, the mandamus, can only com-
pel it to act, but cannot control such discretion. Rev.Code
Iowa, 1880, § 3373 (Code 1931, § 12440).
Writ of "mandamus" is summary writ issued from court
of competent jurisdiction to command performance of spe-
cific duty which relator is entitled to have performed. Peo-
ple v. Nelson, 346 Ill. 247, 178 N.E. 485, 487.
It is legal, not equitable, remedy, and, when issued, is
an inflexible peremptory command to do a particular thing.
State ex rel. Onion v. Supreme Temple Pythian Sisters,
227 Mo.App. 557, 54 S.W.2d 468, 469.
The writ of mandamus is either peremptory or alterna-
tive, according as it requires the defendant absolutely to
obey its behest, or gives him an opportunity to show cause
to the contrary. It is the usual practice to issue the alter-
native writ first. This commands the defendant to do the
particular act, or else to appear and show cause against it
at a day named. If he neglects to obey the writ, and
either makes default in his appearance or fails to show
good cause against the application, the peremptory man-
damus issues, which commands him absolutely and without
qualification to do the act.
MANDANS. Lat. In the civil law, the employ-
ing party in a contract of mandate. One who gives
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MANDANT
a thing in charge to another; one who requires,
requests, or employs another to do some act for
him. Inst. 3, 27, 1, et seq.
MANDANT. In French and Scotch law, the em-
ploying party in the contract of mandatum, or
mandate. Story, Bailm. § 138.
MANDATA LICITA RECIPIUNT STRICTAM IN-
TERPRETATIONEM, SED ILLICITA LATAM
EX EXTENSAM. Lawful commands receive a
strict interpretation, but unlawful commands a
broad and extended one. Bac.Max. reg. 16.
MANDATAIRE. Fr. In French law, a person
employed by another to do some act for him; a
mandatary.
MANDATARIUS TERM:N .0S SIBI POSITOS
TRANSGREDI NON POTEST. A mandatary
cannot exceed the limits assigned him. Jenk.Cent.
53.
MANDATARY. He to whom a mandate, charge,
or commandment is given; also, he that obtains
a benefice by mandamus. Briggs. v. Spaulding, 11
S.Ct. 924, 141 U.S. 132, 35 L.Ed. 662.
MANDATE. A command, order, or direction,
written or oral, which court is authorized to give
and person is bound to obey. Silverman v. Sen-
eca Realty Co., 276 N.Y.S. 466, 154 Misc. 35. A
judicial command or precept proceeding from a
court or judicial officer, directing the proper of-
ficer to enforce a judgment, sentence, or decree.
Seaman v. Clarke, 69 N.Y.S. 1002, 60 'App.Div. 416;
Horton v. State, 63 Neb. 34, 88 N.W. 146.
A precept or order issued upon the decision of
an appeal or writ of error, directing action to be
taken, or disposition to be made of case, by in-
ferior court. Egbert v. St. Louis & S. F. R. Co.,
50 Okl. 623, 151 P. 228, 230.
In some of the state jurisdictions, the name
"mandate" has been substituted for "mandamus"
as the formal title of that writ. Chrisman v. Su-
perior Court in and for Fresno County, 63 Cal.
App. 477, 219 P. 85, 86; Davies v. Board of Com'rs
of Nez Perce County, 26 Idaho, 450, 143 P. 945, 946.
A bailment of property in regard to which the
bailee engages to do some act without reward.
Story, Bailm. § 137; Maddock v. Riggs, 106 Kan.
808, 190 P. 12, 16, 12 A.L.R. 216.
Mandates and deposits closely resemble each other; the
distinction being that in mandates the care and service are
the principal, and the custody the accessory, while in
deposits the custody is the principal thing, and the care
and service are merely accessory. Story, Bailm. § 140.
A contract by which a lawful business is com-
mitted to the management of another, and by him
undertaken to be performed gratuitously. The
mandatary is bound to the exercise of slight dili-
gence, and is responsible for gross neglect. Rich-
ardson v. Futrell, 42 Miss. 525; Williams v. Con-
ger, 8 S.Ct. 933, 125 U.S. 397, 31 L.Ed. 778. A
mandate, procuration, or letter of attorney is an
act by which one person gives power to another
to transact for him and in his name one or several
affairs.
The mandate may take place in five different manners,-
for the interest of the person granting it only; for the
joint interest of both parties; for the interest of a third
person; for the interest of a third person and that of the
party granting it; and, finally, for the interest of the man-
datary and a third person. Civ.Code La. arts. 2985, 2986.
The word may also denote a request or direction.
Thus, a check is a mandate by the drawer to his
banker to pay the amount to the transferee or
holder of the check. 1 Q.B.Div. 33.
Civil Law. The instructions which the emper-
or addressed to a public functionary, and which
were rules for his conduct. These mandates re-
sembled those of the proconsuls, the mandata ju-
risdictio, and were ordinarily binding on the leg-
ates or lieutenants of the emperor•in the imperial
provinces and there they had the authority of
the principal edicts. Sa y .Dr.Rom. c. 3, § 24, no. 4.
MANDATO. In Spanish law, the contract of
mandate. Escriche.
MANDATO, PANES DE. Loaves of bread given
to the poor upon Maundy Thursday.
MANDATOR. The person employing another to
perform a mandate.
MANDATORY, adj. Containing a command; pre-
ceptive; imperative; peremptory.
A "mandatory" provision in the statute is one the omis-
sion to follow which renders the proceedings to which it
relates void, while a "directory" provision is one the
observance of which is not necessary to validity of the pro-
ceeding. Siedschlag v. May, 363 Ill. 538, 2 N.E.2d 836, 838.
So the mandatory part of a writ is that which commands
the person to do the act specified. State v. Barnell, 109
Ohio St. 246, 142 N.E. 611, 613; Williams v. Sherwood, 51
N.D. 520, 200 N.W. 782, 784.
It is also said that when the provision of a statute is the
essence of the thing required to be done, it is mandatory,
Kavanaugh v. Fash, C.C.A.Okl., 74 F.2d 435, 437; other-
wise, when it relates to form and manner; and where an
act is incident, or after jurisdiction acquired, it is direc-
tory merely, Davis v. Smith, 58 N.H. 17.
"Mandatory" s' atutory provision is one which must be
observed, as distinguished from "directory" provision,
which leaves it optional with department or officer to
which addressed to obey it or not. State ex rel. Dworken
v. Court of Common Pleas of Cuyahoga County, 131 Ohio
St. 23, 1 N.E.2d 138, 139.
MANDATORY, n. One to whom a mandate is
given; one who undertakes without compensation
to perform certain duties. Swords v. Simineo,
216 P. 806, 809, 68 Mont. 164;' Smith v. State, 199
Ind. 217, 156 N.E. 513, 515.
MANDATORY INJUNCTION. See Injunction.
MANDATUM. Lat. In the civil law, the contract
of mandate (q. v.).
MANDATUM NISI GRATUITUM NULLUM EST.
Unless a mandate is gratuitous, it is not a man-
date. Dig. 17. 1. 1. 4; Inst. 3, 27; 1 Bouv.Inst. n.
1070.
MANDAVI BALLIVO. (I have commanded or
made my mandate to the bailiff.) In English prac-
tice, the return made by a sheriff, where the bail-
iff of a liberty has the execution of a writ, that
he has commanded the bailiff to execute it. 1
Tidd, Pr. 309; 2 Tidd, Pr. 1025.
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MANORIAL
MANENTES. Tenants. Obsolete. Cowell.
MANERA. In Spanish law, manner or mode.
Las Partidas, pt. 4, tit. 4, 1. 2.
MANERIUM. In old English law, a manor.
MANERIUM DICITUR A MANENDO, SECUN-
DUM EXCELLENTIAM, SEDES MAGNA, FIXA,
ET STABILIS. Co.Litt. 58. A manor is so call-
ed from manendo, according to its excellence, a
seat, great, fixed, and firm.
MANGONARE. In old English law, to buy in a
market.
MANGONELLUS. A warlike instrument for
casting stones against the walls of a castle. Cow-
ell.
MANIA A POTU. Insanity resulting as a second-
ary effect produced by excessive and protracted
indulgence in intoxicating liquors in which the pa-
tient becomes a madman fully deprived of reason
while the fit is upon him. State v. Wallace, 170
Or. 60, 131 P.2d 222, 233.
MANHOOD. In feudal law, a term denoting the
ceremony of doing homage by the vassal to his
lord. The formula used was, "Devenio vester
homo," I become your man. 2 Bl.Comm. 54.
To arrive at manhood means to arrive at twen-
ty-one years of age. Felton v. Billups, 21 N.C.
585.
MANIA. See Insanity.
MANIFEST. Evident to the senses, especially to
the sight, obvious to the understanding, evident
to the mind, not obscure or hidden, and is synony-
mous with open, clear, visible, unmistakable, in-
dubitable, indisputable, evident, and self-evident.
London Guarantee & Accident Co. v. Coffeen, 96
Colo. 375, 42 P.2d 998, 1001.
In evidence, that which is clear and requires no
proof; that which is notorious.
In maritime law. A sea-letter; a written docu-
ment required to be carried by merchant vessels,
containing an account of the cargo, with other
particulars, for the facility of the customs officers.
The Sylvia II, D.C.Mass., 28 F.2d 215, 216.
MANIFEST LAW. See Lex manifesta, s. v. Lex.
MANIFESTA PROBATIONE NON INDIGENT.
7 Coke, 40. Things manifest do not require proof.
MANIFESTO. A formal written declaration, pro-
mulgated by a prince, or by the executive author-
ity of a state or nation, proclaiming its reasons
and motives for declaring a war, or for any other
important international action.
MANIPULUS. In canon law, a handkerchief,
which the priest always had in his left hand.
Blount.
MANKIND. The race or species of human beings.
In law, females, as well as males, may be includ-
ed under this term. Fortesc. 91.
MANNER. A way, mode, method of doing any-
thing, or mode of proceeding in any case or situa-
tion. Ducre v. Milner, La.App., 146 So. 734, 736.
A word of large signification, but cannot exceed the sub-
ject to which it belongs. The incident cannot be extended
beyond its principal. Wells v. Bain, 75 Pa. 39, 54, 15 Am.
Rep. 563.
Also a thing stolen, in the hand of the thief; a corrup-
tion of "mainour" (q. v.).
MANNER AND FORM; MODO ET FORMA.
Formal words introduced at the conclusion of a
traverse.
Their object is to put the party whose pleading is trav-
ersed not only to the proof that the matter of fact denied
is, in its general effect, true as alleged, but also that the
manner and form in which the fact or facts are set forth
are also capable of proof. • Brown.
MANNING. A day's work of a man. Cowell. A
summoning to court. Spelman.
MANNIRE. To cite any person to appear in
court and stand in judgment there. It is different
from bannire; for, though both of them are cita-
tions, this is by the adverse party, and that is by
the judge. Du Cange.
MANNOPUS. In old English law, goods taken
in the hands of an apprehended thief. The same
as "mainour," (q. v.).
MANNUS. A horse. Cowell.
MANOR. A house, dwelling, seat, or residence.
In English law, the manor was originally a tract of land
granted out by the king to a lord or other great person, in
fee. It was otherwise called a "barony" or "lordship,"
and appendant to it was the right to hold a court, called
the "court-baron." The lands comprised in the manor
were divided into terrce tenementales (tenemental lands or
bocland) and terrce dominicales, or demesne lands. The
former were given by the lord of the manor to his follow-
ers or retainers in freehold. The latter were such as he
reserved for his own use; but of these part were held by
tenants in copyhold,  e., those holding by a copy of the
record in the lord's court; and part, under the name of
the "lord's waste," served for public roads and commons
of pasture for the lord and tenants. The tenants, consid-
ered in their relation to the court-baron and to each other,
were called "pares curiae." The word also signified the
franchise of having a manor, with jurisdiction for a court-
baron and the right to the rents and services of copyhold-
ers.
In American law, a manor is a tract held of a proprietor
by a fee-farm rent in money or in kind, and descending to
the oldest son of the proprietor, who in New York is called
a "patroon." People v. Van Rensselaer, 9 N.Y. 291.
Reputed Manor. Whenever the demesne lands
and the services become absolutely separated,
the manor ceases to be a manor in reality, al-
though it may (and usually does) continue to be
a manor in reputation, and is then called a "re-
puted manor," and it is also sometimes called a
"seigniory in gross." Brown.
MANORIAL EXTENT. A survey of a manor
made by a jury of tenants, often of unfree men
sworn to sit for the particulars of each tenancy,
and containing the smallest details as to the na-
ture of the service due. These manorial extents
"were made in the interest of the lords, who were
anxious that all due services should be done; but
they imply that other and greater services are not
due, that the customary tenants, even though
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MANQUIRLIER
they be unfree men, owe these ser ices for their
tenements, no less and no more. Statements that
the tenants are not bound to do services of a par-
ticular kind are not very uncommon"; 1 Poll. &
Maitl. 343. The "extents" of manors are descrip-
tions which give the numbers and names of the
tenants, the size of their holdings, the legal kind
of their tenure and the kind and amount of their
service; Maitland, Material for Hist. E. L. in 2
Sel.Essays in Anglo-Amer. Leg. Hist. 87.
MANQUELLER. In Saxon law, a murderer.
MANRENT. In Scotch law, the service of a man
or vassal. A bond of manrent was an instrument
by which a person, in order to secure the protec-
tion of some powerful lord, bound himself to such
lord for the performance of certain services.
MANSE. In old English law, a habitation or
dwelling, generally with land attached. Spelman.
A residence or dwelling-house for the parish
priest; a parsonage or vicarage house. Cowell.
Still used in Scotch law in this sense.
MANSER. A bastard. Cowell.
MANSIO. In Anglo-Saxon times the amount of
land which would support a man and his family,
called by various names: Mansio, familia, hide.
2 Holdsw. Hist.E.L. 54.
MANSION. A dwelling-house or place of resi-
dence, including its appurtenant outbuildings. 2
East, P.C. 492; Thompson v. People, 3 Parker, Cr.
R. (N.Y.) 214; Armour v. State, 3 Humph. (Tenn.)
385.
In old English law, residence; dwelling.
MANSION-HOUSE. In the law of burglary, etc.,
any species of dwelling-house. 3 Inst. 64.
MANSLAUGHTER. The unlawful killing of an-
other without malice, either express or implied;
which may be either voluntarily, upon a sudden
heat, or involuntarily, but in the commission of
some unlawful act. 1 Hale, P.C. 466; 4 Bl.Comm.
191.
The unlawful killing of a human creature with-
out any deliberation, which may be involuntary,
in the commission of a lawful act without due cau-
tion and circumspection. Wallace v. U. S., 16 S.
Ct. 859, 162 U.S. 466, 40 L.Ed. 1039; High v. State,
10 S.W. 238, 26 Tex.App. 545, 8 Am.St.Rep. 488;
U. S. v. Lewis, C.C.Tex., 111 F. 632.
The distinction between "manslaughter" and "murder"
consists in the following: In the former, though the act
which occasions the death be unlawful or likely to be
attended with bodily mischief, yet the malice, either ex-
press or implied, which is the very essence of murder, is
presumed to be wanting in manslaughter. 1 East, P.C.
218; Comm. v. Webster, 5 Cush., Mass., 304, 52 Am.Dec.
711. No time for premeditation. 1 Hale, P.C. 437; 1 Russ.
Crimes, 485; 1 Bish.Crim.Law, 678; People v. Crenshaw,
298 Ill. 412, 131 N.E. 576, 577, 15 A.L.R. 671.
There are various degrees of manslaughter recognized by
different states, viz. : First degree : Roohano v. State, 167
Wis. 500, 167 N.W. 741, 742. Second degree : State v.
Staples, 126 Minn. 396, 148 N.W. 283. Third degree: State
v. Prince, 258 Mo. 315, 167 S.W. 535, 538. Fourth degree :
State v. Schwenk, 101 Kan. 408, 167 P. 743, 744.
Voluntary manslaughter. Manslaughter com-
mitted voluntarily upon a sudden heat of the pas-
sions; as if, upon a sudden quarrel, two persons
fight, and one of them kills the other. 4 Bl.Comm.
190, 191; State v. Disalvo, 121 A. 661, 663, 2 W.W.
Harr. (Del.) 232; Wiley v. State r 19 Ariz. 346, 170
P. 869, 873, L.R.A.1918D, 373. It is the unlawful
taking of human life under circumstances fall-
ing short of willful or deliberate intent to kill and
approaching too near thereto to be justifiable hom-
icide. State v. McVay, 47 R.I. 292, 132 A. 436,
438, 44 A.L.R. 572.
Involuntary manslaughter. It exists where a
person in committing an unlawful act not feloni-
ous or tending to great bodily harm, or in com-
mitting a lawful act without proper caution or
requisite skill, unguardedly or undesignedly kills
another. State v. Disalvo, 2 W.W.Harr. (Del.) 232,
121 A. 661, 663; State v. McVay, 47 R.I. 292, 132
A. 436, 437, 44 A.L.R. 572.
The absence of intention to kill or to commit any unlaw-
ful act which might reasonably produce death or great
bodily harm is the distinguishing feature between volun-
tary and involuntary homicide. State v. Weisengoff, 85
W.Va. 271, 101 S.E. 450, 455; State v. Pond, 125 Me. 453,
134 A. 572, 573.
MANSO, or MANSUM. In old English law, a
mansion or house. Spelman.
MANSTEALING. A word sometimes used syn-
onymously with "kidnapping," (q. v.).
MANSUETAE NATURA. Tamed and domesti-
cated animals. Andrews v. Smith, 324 Pa. 455, 188
A. 146, 148.
MANSUETUS. Lat. Tame; as though accustom-
ed to come to the hand. 2 Bl.Comm. 391.
MANSUM CAPITALE. The manor-house or
lord's court. Paroch.Antiq. 150.
MANTEA. In old records, a long robe or mantle.
MANTHEOFF. In Saxon law, a horse-stealer.
MANTICULATE. To pick pockets.
MANTLE CHILDREN. See Pallio Cooperire.
MAN-TRAPS. Engines to catch trespassers, now
unlawful unless set in a dwelling-house for de-
fense between sunset and sunrise. 24 & 25 Vict.
c. 100, § 31.
MANU BREVL Lat. With a short hand. A term
used in the civil law, signifying shortly; directly;
by the shortest course; without circuity.
MANU FORTI. Lat. With strong hand. A term
used in old writs of trespass. Manu forti et cum
multitudine pentium, with strong hand and mul-
titude of people. Reg.Orig. 183.
MANU LONGA. Lat. With a long hand. A term
used in the civil law, signifying indirectly or cir-
cuitously. Calvin.
MANU OPERA. Lat. Cattle or implements of
husbandry; also stolen goods taken from a thief
caught in the fact. Cowell.
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MANUFACTURING
MANUAL. Of, or pertaining to, the hand or
hands; done, made, or operated by or used with
the hand or hands; or as manual labor. McErlain
v. Taylor, 207 Ind. 240, 192 N.E. 260, 262, 94 A.L.R.
1284. Performed by the hand; used or employed
by the hand; held in the hand.
MANUAL DELIVERY. Delivery of personal
property sold, donated, mortgaged, etc., by pass-
ing it into the "hand" of the purchaser or trans-
feree, that is, by an actual and corporeal change
of possession.
MANUAL GIFT. The manual gift, that is, the
giving of corporeal movable effects, accompanied
by a real delivery, is not subject to any formality.
Civil Code La. art. 1539.
MANUAL LABOR. Work done with the hand.
State v. Ash, 53 Ariz. 197, 87 P.2d 270, 272. Labor
performed by hand or by the exercise of physical
force, with or without the aid of tools and of
horses or other beasts of burden, but depending
for its effectiveness chiefly upon personal mus-
cular exertion rather than upon skill, intelligence
or adroitness. Lew Jim v. U. S., C.C.A.Cal., 66 F.
954, 14 C.C.A. 281; Martin v. Wakefield, 42 Minn.
176, 43 N.W. 966, 6 L.R.A. 362.
MANUAL RATES. The Oklahoma Inspection
Bureau is a private enterprise maintained by the
insurance companies and its function is to com-
pile the general basis schedule which sets out the
rates for the risks insured. These rates are com-
monly referred to as "manual rates." Commer-
cial Standard Ins. Co. v. Remer, C.C.A.Okl., 119 F.
2d 66, 67.
MANUALIA BENEFICIA. The daily distribu-
tions of meat and drink to the canons and other
members of cathedral churches for their present
subsistence. Cowell.
MANUALIS OBEDIENTIA. Sworn obedience or
submission upon oath. Cowell.
MANUCAPTIO. In old English practice, a writ
which lay for a man taken on suspicion of felony,
and the like, who could not be admitted to bail by
the sheriff, or others having power to let to main-
prise. Fitzh.Nat.Brev. 249.
MANUCAPTORS. Same as mainpernors (q. v.).
MANUFACTORY. A physical plant, or a place or
building where manufacturing is carried on.
( Plant wherein electric power was generated.)
Duke Power Co. v. Bell, 156 S.C. 299, 152 S.E. 865,
868. What in common understanding is known as
a "factory." Halpin v. Insurance Co., 23 N.E. 989,
120 N.Y. 73, 8 L.R.A. 79; In re I. Rheinstrom &
Sons Co., D.C.Ky., 207 F. 119, 134.
MANUFACTURE, v. From Latin words manus
and factura, literally, put together by hand. Now
it means the process of making products by hand
or machinery. United States v. Anderson, D.C.
Cal., 45 F.Supp. 943, 946.
The primary meaning of this word is "making with the
hand," but this definition is too narrow for its present use.
Meaning of word "manufacture," which is defined as the
making of goods or wares by manual labor or by machin-
ery, especially on a large scale, has expanded as workman-
ship and art have advanced, so that now nearly all arti-
ficial products of human industry, nearly all such materials
as have acquired changed conditions or new and specific
combinations, whether from the direct action of the human
hand, from chemical processes devised and directed by
human skill, or by the employment of machinery, are now
commonly designated as "manufactured." Mayor and City
Council of Baltimore v. Price, 168 Md. 174, 177 A. 160, 163.
Ordinarily does not include building or construction of
outdoor structures. Morrison-Knudson Co. v. State Board
of Equalization, 58 Wyo. 500, 135 P.2d 927, 931, 932.
MANUFACTURE, n. The process or operation of
making wares or any material produced by hand,
by machinery or by other agency; anything made
from raw materials by the hand, by machinery,
or by art. Jones Bros. Co. v. Underkoffier, D.C.Pa.,
16 F.Supp. 729, 730. The production of articles for
use from raw or prepared materials by giving such
materials new forms, qualities, properties or com-
binations, whether by hand labor or machine.
Cain's Coffee Co. v. City of Muskogee, 171 Old. 635,
44 P.2d 50, 52.
In patent law, any useful product made directly by
human labor, or by the aid of machinery directed and con-
trolled by human power, and either from raw materials, or
from materials worked up into a new form. Also the
process by which such products are made or fashioned.
Turner v. Quincy Market Cold Storage & Warehouse Co.,
C.C.A.Mass., 225 F. 41; International Mausoleum Co. v.
Sievert, C.C.A.Ohio, 213 F. 225, 227; Riter-Conley Mfg. Co.
v. Aiken, C.C.A.Pa., 203 F. 699, 702.
An instrument created by the exercise of mechanical
forces and designed for the production of mechanical ef-
fects, but not capable, when set in motion, of attaining, by
its own operation, to any predetermined results. It re-
ceives its rule of action from the external source which
furnishes its motive power.
A manufacture requires the constant guidance and con-
trol of some separate intelligent agent; a machine oper-
ates under the direction of that intelligence with which it
was endowed by its inventor when he imposed on it its
structural law. The parts of a machine, considered sep-
arately from the machine itself, all kinds of tools and
fabrics, and every other vendible substance, which is nei-
ther a complete machine nor produced by the mere union
of ingredients, is included under the title "manufacture."
Rob.Pat. § 182.
Domestic manufactures. Generally, manufac-
tures within a state's jurisdiction. Com. v. Gilti-
nan, 64 Pa. 100.
MANUFACTURER. One who by labor, art, or
skill transforms raw material into some kind of a
finished product or article of trade. Henry v.
Markesan State Bank, C.C.A.Minn., 68 F.2d 554,.
557.
MANUFACTURERS LIABILITY DOCTRINE.
The foundation for the liability is knowledge of
the danger attending use of manufactured or as-
sembled product and negligence in failing to give
appropriate warning, or negligence in failing to
discover and appreciate the danger, and the prob-
able consequences that injury will proximately re-
sult from the use of such product for the purposes
for which it was intended. Crane Co. v. Davies,.
242 Ala. 570, 8 So.2d 196, 199.
MANUFACTURING CORPORATION. A corpo-
ration engaged in the production of some article,
thing, or object, by skill or labor, out of raw ma-
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MANUFACTURING
terial, or from matter which has already been sub-
jected to artificial forces, or to which something
has been added to change its natural condition.
People v. Knickerbocker Ice Co., 99 N.Y. 181, 1
N.E. 669. The term does not include a mining
corporation. Byers v. Franklin Coal Co., 106
Mass. 135. But includes a corporation engaged in
generation and distribution of electricity. Curry
v. Alabama Power Co., 8 So.2d 521, 526, 243 Ala.
53.
MANUFACTURING ESTABLISHMENT. Any
place where machinery is used for manufactur-
ing purposes. Lilley v. Eberhardt, Mo., 37 S.W.2d
599, 601.
MANUMISSION. The act of liberating a slave
from bondage and giving him freedom. In a wid-
er sense, releasing or delivering one person from
the power or control of another. See Fenwick v.
Chapman, 9 Pet. 472, 9 L.Ed. 193; State v. Prall,
1 N.J.Law, 4.
MANUMITTERE IDEM EST QUOD EXTRA
MANUM VEL POTESTATEM PONERE. Co.Litt.
137. To manumit is the same as to place beyond
hand and power.
MANUNG, or MONUNG. In old English law, the
district within the jurisdiction of a reeve, appar-
ently so called from his power to exercise there-
in one of his chief functions, viz., to exact (aman-
ian) all fines.
MANUPES. In old English law, a foot of full and
legal measure.
MANUPRETIUM. Lat. In Roman law, the hire
or wages of labor; compensation for labor or serv-
ices performed. See Mackeld.Rom.Law, § 413.
MANURABLE. In old English law, capable of
being had or held in hand; capable of manual oc-
cupation; capable of being cultivated; capable of
being touched; tangible; corporeal. Hale, Anal.
§ 24.
MANURE. In old English law, to occupy; to use
or cultivate; to have in manual occupation; to
bestow manual labor upon. Cowell.
MANUS. Lat. A hand.
In the civil law, this word signified power,
control, authority, the right of physical coercion,
and was often used as synonymous with "potes-
tas. If
In old English law, it signified an oath or the
person taking an oath; a compurgator.
MANUS MORTUA. A dead hand; mortmain.
Spelman.
MANUSCRIPT. A writing; a paper written with
the hand; a writing that has not been printed.
Parton v. Prang, 18 Fed.Cas. 1275; Leon Loan &
Abstract Co. v. Equalization Board, 86 Iowa 127,
53 N.W. 94, 17 L.R.A. 199, 41 Am.St.Rep. 486.
MANUTENENTIA. The old writ of maintenance.
Reg.Orig. 182.
IVIANWORTH. In old English law, the price or
value of a man's life or head. Cowell.
MANY. The word "many" is defined as consist-
ing of a great number, numerous, not few. Many
is a word of very indefinite meaning, and, though
it is defined to be numerous and multitudinous, it
is also recognized as synonymous with "several",
"sundry", "various" and "divers". Goslin v. Kurn,
351 Mo. 395, 173 S.W.2d 79, 87.
MANZIE. In old Scotch law, mayhem; mutila-
tion of the body of a person. Skene.
MAP. A representation of the earth's surface, or
of some portion of it, showing the relative posi-
tion of the parts represented, usually on a flat
surface. Webster. "A map is but a transcript
of the region which it portrays, narrowed in com-
pass so as to facilitate an understanding of the
original." Banker v. Caldwell, 3 Minn. 103 (Gil.
55).
MAR. To make defective; to do serious injury
to; to damage greatly; to impair, spoil, ruin; to
do physical injury to, especially by cutting off or
defacing a part; to mutilate; mangle, disfigure;
deface. Maxwell v. City of Buhl, 236 P. 122, 123,
40 Idaho 644; Borden v. Hirsh, 249 Mass. 205, 143
N.E. 912, 914, 33 A.L.R. 526.
MARA. In old records, a mere or moor; a lake,
pool, or pond; a bog or marsh that cannot be
drained. Cowell; Blount; Spelman.
MARAJUANA PLANT. The plant scientifically
known as cannabis indica or cannabis americana,
though there possibly may be some slight and
unimportant botanical difference between the two,
but apparently none in its effect upon the human
system. See Mariguana.
MARATHON. Modern meaning is any race or
physical endurance contest. Sportatorium, Inc.,
v. State, Tex.Civ.App., 104 S.W.2d 912, 916.
MARAUDER. "A marauder is defined in the law
to be 'one who, while employed in the army as a
soldier, commits larceny or robbery in the neigh-
borhood of the camp, or while wandering away
from the army.' But in the modern and metaphor-
ical sense of the word, as now sometimes used in
common speech, it seems to be applied to a class
of persons who are not a part of any regular
army, and are not answerable to any military dis-
cipline, but who are mere lawless banditti, engag-
ed in plundering, robbery, murder, and all conceiv-
able crimes." Curry v. Collins, 37 Mo. 328.
MARC-BANCO. The name of a piece of money
formerly coined at Hamburg. Its value was thir-
ty-five cents.
MARCA. A mark; a coin of the value of 13s. 4d.
Spelman.
MARCATUS. The rent of a mark by the year an-
ciently reserved in leases, etc.
MARCH. In Scotch law, a boundary line or bor-
der. Bell. The word is also used in composition;
as march-dike, march-stone.
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MARIGUANA
MARCHANDISES AVARIEES. In French mer-
cantile law. Damaged goods.
MARCHERS. In old English law, noblemen who
lived on the marches of Wales or Scotland, and
who, according to Camden, had their private laws,
as if they had been petty kings; which were abol-
ished by the statute 27 Hen. VIII. c. 26. Called
also "lords marchers." Cowell.
MARCHES. An old English term for boundaries
or frontiers, particularly the boundaries and lim-
its between England and Wales, or between Eng-
land and Scotland, or the borders of the domin-
ions of the crown, or the boundaries of properties
in Scotland. Mozley & Whitley.
MARCHES, COURT OF. An abolished tribunal
in Wales, where pleas of debt or damages, not
above the value of £50, were tried and determin-
ed. Cro.Car. 384.
MARCHETA.
In old Scotch law, a custom for the lord of a
fee to lie the first night with the bride of his ten-
ant. Abolished by Malcolm III. Spelman; 2 Bl.
Comm. 83. A fine paid by the tenant for the re-
mission of such right, originally a mark or half a
mark of silver. Spelman.
In old English law, a fine paid for leave to mar-
ry, or to bestow a daughter in marriage. Cowell.
MARCHIONESS. A dignity in a woman answer-
able to that of marquis in a man, conferred either
by creation or by marriage with a marquis.
Wharton.
MARE. Lat. The sea.
MARE CLAUSUM. The sea closed; that is, not
open or free. The title of Selden's great work, in-
tended as an answer to the Mare Liberum of Gro-
tius; in which he undertakes to prove the sea to
be capable of private dominion. 1 Kent, Comm.
27.
MARE LIBERUM. The sea free. The title of a
work written by Grotius against the Portuguese
claim to an exclusive trade to the Indies, through
the South Atlantic and Indian oceans; showing
that the sea was not capable of private dominion.
1 Kent, Comm. 27.
MARESCALLUS. In old English law, a marshal;
a master of the stables; an officer of the exche-
quer; a military officer of high rank, having pow-
ers and duties similar to those of a constable. Du
Cange. See Marshal.
MARESCHAL. L. Fr. Marshal; a high officer of
the royal household, Britt. fol. lb.
MARETTUM. Marshy ground overflowed by the
sea or great rivers. Co.Litt. 5.
MARGIN. The edge or border; the edge of a
body of water where it meets the land. As appli-
ed to a boundary line of land, the "margin" of a
river, creek, or other watercourse means the cen-
ter of the stream. Varick v. Smith, 9 Paige, N.Y.,
551. But in the case of a lake, bay, or natural
pond, the "margin" means the line where land
and water meet. Fowler v. Vreeland, 44 N.J.Eq.
268, 14 A. 116; Lembeck v. Andrews, 47 Ohio St.
336, 24 N.E. 686, 8 L.R.A. 578.
A sum of money, or its equivalent, placed in
the hands of a stockbroker by the principal or per-
son on whose account a purchase or sale is to be
made, as a security to the former against losses
to which he may be exposed by subsequent fluc-
tuations in the market value of the stock. Sheehy
v. Shinn, 103 Cal. 325, 37 P. 393; Memphis Brok-
erage Ass'n v. Cullen, 11 Lea, Tenn., 77.
MARGINAL NOTE. In Scotch law, a note in-
serted on the margin of a deed, embodying either
some clause which was omitted in transcribing or
some change in the agreement of the parties.
Bell.
An abstract of a reported case, a summary of
the facts, or brief statement of the principle de-
cided, which is prefixed to the report of the case,
sometimes in the margin, is also spoken of by
this name.
MARGINAL STREET. Dock or wharf used In
conjunction with and in furtherance of commerce
and navigation. In re Triborough Br 4d0;e Ap-
proach, City of New York, 159 Misc. 617, 288 N.Y.S.
697, 711, 716.
MARGIN OF PROFIT. Difference between pur-
chase price and selling price of merchandise. Kel-
ley v. Baisch, 59 Idaho 798, 87 P.2d 468, 469.
MARIGUANA, MARIHUANA, MARIJUANA.
"Mariguana" is an annual herb, cannabis sativa,
having angular rough stem and deeply lobed leav-
es. The bast fibres of cannabis are the hemp of
commerce. A drug prepared from "cannabis sat-
iva," designated in technical dictionaries as "can-
nabis" and commonly known as marijuana, maria-
huana, marajuana, maraguana, or marihuana, in
Southern and Western states. State v. Navaro,
83 Utah 6, 26 P.2d 955; People v. Savage, 148 P.2d
654, 64 Cal.App.2d 314. For the history of can-
nabis, see Simpson v. State, 176 So. 515, 129 Fla.
127.
"Marihuana" is referred to by Brundage's Toxicology as
a drug, the use of which results in a "sense of exhilara-
tion; pleasurable intoxication; peculiar prolongation of
time; sense of double consciousness followed by drowsi-
ness; anEethesia;, loss of power, particularly of the lower
extremities; pupils dilated; pulse rapid; respiration
slow; may cause increased sexual desires; catalepsy;
sometimes convulsions." It is known most generally in
the United States by the Mexican name, "Marihuana,"
because it was introduced into this country_ by Mexicans.
State v. Navaro, 83 Utah 6, 26 P.2d 955.
"Marihuana" is the Mexican term for cannabis indica.
The plant or drug known as cannabis indica, or marihuana,
has as its parent the plant known as cannabis sativa. It is
popularly known in India as cannabis indica; in America,
as Cannabis americana; in Mexico, as cannabis mexicana,or marihuana. It is all the same drug, and is known fn
different countries by different names. It is scientifically
known as cannabis sativa, and is popularly called cannabis
americana, cannabis indica, or cannabis mexicana, it
accordance with the geographical origin of the particul-
plant. In the East, it is known as charras, as gunga,
hasheesh, as bhang, or siddi, and goes by a variety
names in the countries of Continental Europe. In Americ
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MARINARIUS
particularly In the South and Southwestern portions of the
United States, it is called marihuana. It is popularly
known among the criminal element as "muggles," or
"mooter," and addicts are commonly termed "muggle
heads." State v. Navaro, 83 Utah 6, 26 P.2d 955.
MARINARIUS. An ancient word which signified
a mariner or seaman. In England, marinarius
capitaneus was the admiral or warden of the
ports.
MARINE. Naval; relating or pertaining to the
sea; transacted at sea; doing duty or service on
the sea.
This is also a general name for the navy of a
kingdom or state; as also the whole economy of
naval affairs, or whatever respects the building,
rigging, arming, equipping, navigating, and fight-
ing ships. It comprehends also the government
of naval armaments, and the state of all the per-
sons employed therein, whether civil or military.
Also one of the marines. Wharton. Doughten v.
Vandever, 5 Del.Ch. 73.
MARINE BELT. That portion of the main or
open sea, adjacent to the shores of a given coun-
try, over which the jurisdiction of its municipal
laws and local authorities extends; defined by in-
ternational law as extending out three miles from
the shore. The Alexander, D.C.Alaska, 60 F. 918.
MARINE CARRIER. By statutes of several
states this term is applied to carriers plying upon
the ocean, arms of the sea, the Great Lakes, and
other navigable waters within the jurisdiction of
the United States. Civ.Code Cal. § 2087; Rev.
Codes N.D.1899, § 4176, Comp.Laws 1913, § 6187.
MARINE CONTRACT. One relating to maritime
_affairs, shipping, navigation, marine insurance,
affreightment, maritime loans, or other business
to be done upon the sea or in connection with nav-
igation.
MARINE CORPS. A body of soldiers enlisted and
equipped for service on board vessels of war;
also the naval forces of the nation. U. S. v. Dunn,
120 U.S. 249, 7 S.Ct. 507, 30 L.Ed. 667.
MARINE COURT IN THE CITY OF NEW YORK.
Formerly, a local court of New York City, orig-
inally created as a tribunal for the settlement of
causes betwen seamen. It was the predecessor
of the present city court of the city of New York.
15 C.J. 1003. The history of this court may be
found in McAdam, Mar.Ct.Pr., 2d Ed. 1872.
MARINE SOCIETY. In English law, a charitable
institution for the purpose of apprenticing boys
to the naval service, etc., incorporated by 12 Geo.
III. c. 67.
MARINER. A seaman or sailor; one engaged in
navigating vessels upon the sea; every person
employed aboard ships or vessels. Pacific Mail
S. S. Co. v. Schmidt, C.C.A.Cal., 214 F. 513, 518.
MARINES. A body of infantry soldiers, trained
to serve on board of vessels of war when in com-
mission and to fight in naval engagements. See
Marine Corps.
MARIS ET FCEMINIE CONJUNCTIO EST DE
JURE NATURIE. 7 Coke, 13. The connection of
male and female is by the law of nature.
MARISCHAL. An officer in Scotland, who, with
the lord high constable, possessed a supreme itin-
erant jurisdiction in all crimes committed within
a certain space of the court, wherever it might
happen to be. Wharton.
MARISCUS. A marshy or fenny ground. Co.
Litt. 5a.
MARITAGIO AMISSO PER DEFALTAM. An ob-
solete writ for the tenant in frank-marriage to re-
cover lands, etc., of which he was deforced.
MARITAGIUM. The portion which is given with
a daughter in marriage. Also the power which
the lord or guardian in chivalry had of disposing
of his infant ward in matrimony.
MARITAGIUM EST AUT LIBERUM AUT SERV-
ITIO OBLIGATUM; LIBERUM MARITAGIUM
DICITUR UBI DONATOR VULT QUOD TERRA
SIC DATA QUIETA SIT ET LIBERA AB OMNI
SECULAR' SERVITIO. Co.Litt. 21. A marriage
portion is either free or bound to service; it is
called "frank-marriage" when the giver wills that
land thus given be exempt from all secular serv-
ice.
MARITAGIUM HABERE. To have the free dis-
posal of an heiress in marriage.
MARITAL. Relating to, or connected with, the
status of marriage; pertaining to a husband; in-
cident to a husband.
MARITAL COERCION. Coercion of the wife by
the husband.
MARINE INSURANCE. See Insurance.
MARINE INTEREST. Interest, allowed to be
stipulated for at an extraordinary rate, for the
use and risk of money loaned on respondentia and
bottomry bonds.
MARINE LEAGUE. A measure of distance com-
monly employed at sea, being equal to one-twenti-
eth part of a degree of latitude, or three geograph-
ical or nautical miles. Rockland, etc., S. Co. v.
Fessenden, 79 Me. 140, 8 A. 552.
MARINE RISK. The perils of the sea; the per-
ils necessarily incident to navigation.
MARITAL FOURTH. A gift or bounty bestowed
by law in favor of surviving spouse left in penur-
ious circumstances. Maddox v. Butchee, 203 La.
299, 14 So.2d 4, 8.
MARITAL PORTION. In Louisiana, the name
given to that part of a deceased husband's estate
to which the widow is entitled. Abercrombie v.
Caffray, 3 Mart.N.S., La., 1.
MARITAL RIGHTS AND DUTIES. Those aris-
ing from marriage contract and constituting its
object, and therefore embracing what the parties
agree to perform towards each other and to so-
ciety. Alexander v. Alexander, 107 Conn. 101, 139
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A. 685, 688. Rights of husband and wife to a spe-
cified share of other's personal estate upon death
of other. In re Dean's Estate, 350 Mo. 494, 166
S.W.2d 529, 534, 535.
MARITIMA ANGLIIE. In old English law, the
emolument or revenue coming to the king from
the sea, which the sheriffs anciently collected, but
which was afterwards granted to the admiral.
Spelman.
MARITIMA INCREMENTA. In old English law,
marine increases. Lands gained from the sea.
Hale, de Jure Mar. pt. 1, c. 4.
MARITIME. Pertaining to the sea or ocean or the
navigation thereof; or to commerce conducted by
navigation of the sea or (in America) of the great
lakes and rivers.
It is nearly equivalent to "marine" in many con-
nections and uses; in others, the two words are
used as quite distinct.
MARITIME BELT. That part of the sea which,
in contradistinction to the open sea, is under the
sway of the riparian states. Louisiana v. Mississip-
pi, 202 U.S. 1, 26 S.Ct. 408, 571, 50 L.Ed. 913.
MARITIME CAUSE. A cause of action originat-
ing on the high seas, or growing out of a maritime
contract. 1 Kent, Comm. 367, et seq.
MARITIME CONTRACT. A contract relating to
business of navigation. Massman Const. Co. v.
Bassett, D.C.Mo., 30 F.Supp. 813, 815. A contract
whose subject-matter has relation to the naviga-
tion of the seas or to trade or commerce to be con-
ducted by navigation or to be done upon the sea
or in ports. Edwards v. Elliott, 21 Wall. 553, 22
L.Ed. 487; Doolittle v. Knobeloch, D.C.S.C., 39 F.
40; Holt v. Cummings, 102 Pa. 215, 48 Am.Rep.
199; Rounds v. Cloverport Foundry & Machine
Co., 159 Ky. 414, 167 S.W. 384, 387, Ann.Cas.1915D,
40.
MARITIME COURT. A court exercising jurisdic-
tion in maritime causes; one which possesses the
powers and jurisdiction of a court of admiralty.
MARITIME INTEREST. An expression equiva-
lent to marine interest (q. v.).
MARITIME JURISDICTION. Jurisdiction in
maritime causes; such jurisdiction as belongs to
a court of admiralty on the instance side.
MARITIME LAW. The traditional body of rules,
precepts, and practices known as the "maritime
law". O'Donnell v. Great Lakes Dredge & Dock
CO., 318 U.S. 36, 63 S.Ct. 488, 490, 87 L.Ed. 596.
That system of law which particularly relates to
commerce and navigation, to business transacted
at sea or relating to navigation, to ships and ship-
ping, to seamen, to the transportation of persons
and property by sea, and to marine affairs gener-
ally. The law relating to harbors, ships, and sea-
men, divided into a variety of departments, such as
those about harbors, property of ships, duties
and rights of masters and seamen, contracts of af-
freightment, average, salvage, etc. Wharton;
MARITIME
The Lottawanna, 21 Wall. 572, 22 L.Ed. 654; The
Unadilla, D.C.Ill., 73 F. 351.
MARITIME LIEN. A privileged claim on a ves-
sel for some service rendered to it to facilitate
its use in navigation, or an injury caused by it in
navigable waters, to be carried into effect by legal
process in the admiralty court. The Westmoor,
D.C.Or., 27 F.2d 886, 887.
It attaches to the vessel and freight, and is to be en-
forced by an action in rem.  Paxson v. Cunningham,
C.C.A.1, 63 F. 134, 11 C.C.A. 111.
The word "lien" is used in maritime law not in the
strict legal sense in which we understand it in courts of
common law, in which case there could be no lien where
there was no possession, actual or constructive, but to
express, as if by analogy, the nature of claims which nei-
ther presuppose nor originate in possession. 22 Eng.Law &
Eq. 62. A distinction is sometimes made, however, be-
tween qualified maritime liens, which depend upon pos-
session, and absolute maritime liens, which do not require
nor depend upon possession. Cutler v. Rae, 7 How. 729, 12
L.Ed. 890; 21 Am.Law Reg. 1. A "maritime lien" is a
special property right in a ship given to a creditor by law
as security for a debt or claim subsisting from the moment
the debt arises with right to have the ship sold and debt
paid out of proceeds. The Poznan, C.C.A.N.Y., 9 F.2d 838,
842. Such a lien is a proprietary interest or right of prop-
erty in the vessel itself, and not a cause of action or
demand for personal judgment against the owner. The
Theodore Roosevelt, D.C.Ohio, 291 F. 453, 461; The River
Queen, D.C.Va., 8 F.2d 426, 427.
MARITIME LOAN. A contract or agreement by
which one, who is the lender, lends to another, who
is the borrower, a certain sum of money, upon con-
dition that if the thing upon which the loan has
been made should be lost by any peril of the sea,
or vis major, the lender shall not be repaid unless
what remains shall be equal to the sum borrowed;
and if the thing arrive in safety, or in case it
shall not have been injured but by its own defects
or the fault of the master or mariners, the bor-
rower shall be bound to return the sum borrowed,
together with a certain sum agreed upon as the
price of the hazard incurred. Emerig. Mar. Loans,
c. 1, s. 2. The Draco, 7 Fed.Cas. 1,042.
MARITIME PROFIT. A term used by French
writers to signify any profit derived from a mari-
time loan.
MARITIME SERVICE. In admiralty law, a serv-
ice rendered upon the high seas or a navigable
river, and which has some relation to commerce
or navigation,—some connection with a vessel em-
ployed in trade, with her equipment, her preserva-
tion, or the preservation of her cargo or crew.
Thackarey v. The Farmer, 23 F.Cas. 877; The At-
lantic, D.C.S.C., 53 F. 609; Newham v. Chile Ex-
ploration Co., 133 N.E. 120, 232 N.Y. 37, 25 A.L.R.
1018.
MARITIME STATE, in English law, consists of
the officers and mariners of the British navy, who
are governed by express and permanent laws, or
the articles of the navy, established by act of par-
liament.
MARITIME TORT. Civil wrongs committed on
navigable waters. Berwind-White Coal Mining Co.
v. City of New York, C.C.A.N.Y., 135 F.2d 443, 446.
The term is never applied to a tort committed upon
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MARITUS.
land, though relating to maritime matters. The
Plymouth, 3 Wall. 33, 18 L.Ed. 125; Holmes v. Ore-
gon & C. Ry. Co., D.C.Or., 5 F. 77; Butler v. Robins
Dry Dock & Repair Co., 147 N.E. 235, 236, 240 N.Y.
23; Kuhlman v. W. & A. Fletcher Co., C.C.A.N.J.,
20 F.2d 465, 466.
MARITUS. Lat. A husband; a married man.
Calvin.
MARK. A character, usually in the form of a
cross, made as a substitute for his signature by
a person who cannot write, in executing a con-
veyance or other legal document.
It is commonly made as follows : A third person writes
the name of the marksman, leaving a blank space between
the Christian name and surname; in this space the latter
traces the mark, or crossed lines, and above the mark is
written "his," (or "her,") and below it, "mark."
The sign, writing, or ticket put upon manufac-
tured goods to distinguish them from others, ap-
pearing thus in the compound, "trade-mark."
A token, evidence, or proof; as in the phrase "a
mark of fraud."
A weight used in several parts of Europe, and
for several commodities, especially gold and silver.
When gold and silver are sold by the mark, it is
divided into twenty-four carats.
A money of accounts in England, and in some
other countries a coin. The English mark is two-
thirds of a pound sterling, or 13s. 4d.; and the
Scotch mark is of equal value in Scotch money of
account. Enc.Amer.
The word is sometimes used as another form
of "marque," a license of reprisals.
In early Teutonic and English law, a species of
village community, being the lowest unit in the
political system; one of the forms of the gens or
clan, variously known as the "mark," "gemeinde,"
"commune," or "parish." Also the land held in
common by such a community. The union of sev-
eral such village communities and their marks, or
common lands, forms the next higher political
union, the hundred. Freem. Compar. Politics, 116,
117.
Demi-mark. Half a mark; a sum of money
which was anciently required to be tendered in a
writ of right, the effect of such tender being to put
the demandant, in the first instance, upon proof
of the seisin as stated in his count; that is, to
prove that the seisin was in the king's reign there
stated. Rosc. Real Act. 216.
High and low water-mark. See Water-Mark.
Mark banco. See Marc-Banco.
MARKEPENNY. A penny anciently paid at the
town of Maldon by those who had gutters laid or
made out of their houses into the streets. Whar-
ton.
MARKET. Place of commercial activity in which
articles are bought and sold. Zemel v. Commercial
Warehouses, 132 N.J.L. 341, 40 A.2d 642, 643. The
region in which any commodity can be sold; the
geographical or economic extent of commercial de-
mand. State v. Auclair, 110 Vt. 147, 4 A.2d 107,
116. A public time and appointed place of buying
and selling; also purchase and sale. Caldwell v.
Alton, 33 Ill. 419, 75 Am.Dec. 282; Strickland v.
Pennsylvania R. Co., 154 Pa. 348, 26 A. 431, 21 L.R.
A. 224; State v. Burkett, 119 Md. 609, 87 A. 514, 518,
Ann.Cas.1914D, 345. It differs from the forum,
or market of antiquity, which was a public mar-
ket-place on one side only, or during one part of
the day only, the other sides being occupied by
temples, theaters, courts of justice, and other pub-
lic buildings. Wharton.
The liberty, privilege, or franchise by which
a town holds a market, which can only be by roy-
al grant or immemorial usage. In re Certain
Lands on North Shore of Harlem River in City of
New York, 127 Misc.Rep. 710, 217 N.Y.S. 544, 557.
By the term "market" is also understood the
demand there is for any particular article; as,
"the cotton market in Europe is dull."
Clerk of the Market. See Clerk of the Market.
Public market. A market which is not only open
to the resort of the general public i s purchasers,
but also available to all who wish to offer their
wares for sale, stalls, stands, or places being allot-
ted to those who apply, to the limits of the capaci-
ty of the market, on payment of fixed rents or
fees. American Live Stock Commission Co. v.
Chicago Live Stock Exchange, 143 Ill. 210, 32 N.E.
274, 18 L.R.A. 190; State v. Fernandez, 39 La.Ann.
538, 2 So. 233.
MARKET GELD. The toll of a market.
MARKET OVERT. In English law, an open and
public market. The market-place or spot of
ground set apart by custom for the sale of particu-
lar goods is, in the country, the only market overt;
but in London every shop in which goods are ex-
posed publicly to sale is market overt, for such
things only as the owner professes to trade in. 2
B1.Comm. 449; Godb. 131; 5 Coke, 83. Fawcett
v. Osborn, 32 Ill. 426, 83 Am.Dec. 278.
MARKET PRICE. The price at which a seller is
ready and willing to sell and a buyer ready and
willing to buy in the ordinary course of trade.
Bourjois, Inc., v. McGowan, D.C.N.Y., 12 F.Supp.
787, 790. The price actually given in current mar-
ket dealings, and actual price at which given com-
modity is currently sold, or has recently been sold
in open market, that is, not at forced sale, but in
the usual and ordinary course of trade and com-
petition between sellers and buyers equally free to
bargain, as established by records of late sales.
Wall v. United Gas Public Service Co., 178 La. 908,
152 So. 561, 563.
The actual price at which the given commodity
is currently sold, or has recently been sold, in
the open market, that is, not at a forced sale, but
in the usual and ordinary course of trade and com-
petition, between sellers and buyers equally free to
bargain, as established by records of late sales.
Lovejoy v. Michels, 88 Mich. 15, 49 N.W. 901, 13
L.R.A. 770; Sanford v. Peck, 63 Conn. 486, 27 A.
1057; McGarry v. Superior Portland Cement Co.,
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MARRIAGE
95 Wash. 412, 163 P. 928, 929, Ann.Cas.1918A, 572.
The term also means, when price at the place of ex-
portation is in view, the price at which articles
are sold and purchased, clear of every charge but
such as is laid upon it at the time of sale. Goodwin
v. United States, 2 Wash.C.C. 493, F.Cas.No.5,554.
For "Fair Market Price," see that title.
MARKET TOWNS. Those towns which are enti-
tled to hold markets. 1 Steph.Comm., 7th Ed., 130.
MARKET VALUE. The price property would
command in the market. State Highway Board
v. Bridges, 60 Ga.App. 240, 3 S.E.2d 907, 910.
For "Fair and Reasonable Market Value" and
"Fair Cash Market Value", see those titles.
The market value of an article or piece of property is the
price which it might be expected to bring if offered for sale
in a fair market; not the price which might be obtained
on a sale at public auction or a sale forced by the necessi-
ties of the owner, but such a price as would be fixed by
negotiation and mutual agreement, after ample time to
find a purchaser, as between a vendor who is willing (but
not compelled) to sell and a purchaser who desires to buy
but is not compelled to take the particular article or piece
of property. Winnipiseogee Lake, etc., Co. v. Gilford, 67
N.H. 514, 35 A. 945; Muser v. Magone, 155 U.S. 240, 15
S. Ct. 77, 39 L. Ed. 135; Little Rock Junction Ry. v. Wood-
ruff, 49 Ark. 381, 5 S.W. 792, 4 Am.St.Rep. 51; William H.
Lowe Estate Co. v. Lederer Realty Corporation, 35 R.I.
352, 86 A. 881, 883, Ann.Cas.1916A, 341.
Same meanipg as "reasonable market value," or "fair
market value." Sanders v. Pinney, 103 Wash. 162, 174 P.
471, 472; Hubbell v. City of Des Moines, 166 Iowa 581, 147
N.W. 908, 910, Ann.Cas.1916E, 592.
MARKET ZELD. Properly market geld. In old
records. The toll of a market. Cowell.
MARKETABLE. Such things as may be sold in
the market; those for which a buyer may be
found; merchantable. Hinton v. Martin, 151 Ark.
343, 236 S.W. 267, 268; Pryor v. Fruit Distribu-
tors' Service Co., 73 Cal.App. 467, 238 P. 825, 827.
MARKETABLE TITLE. A "marketable title" to
land is such a title as a court of' equity, when asked
to decree specific performance of the contract of
sale, will compel the vendee to accept as sufficient.
It is said to be not merely a defensible title, but
a title which is free from plausible or reasonable
objections. Austin v. Barnum, 52 Minn. 136, 53
N.W. 1132; Brokaw v. Duffy, 165 N.Y. 391, 59 N.E.
196; Wilson v. Korte, 91 Wash. 30, 157 P. 47, 48.
Such a title as is free from reasonable doubt in
law and in fact; not merely a title valid in fact,
but one which readily can be sold or mortgaged to
a reasonably prudent purchaser or mortgagee; one
acceptable to a reasonable purchaser, informed as
to the facts and their legal meaning, willing tc-:,
perform his contract, in the exercise of that pru-
dence which business men usually bring to bear on
such transactions; one under which a purchaser
may have quiet and peaceful enjoyment of the
property; one that is free from material defects,
or grave doubts, and reasonably free from litiga-
tion. Myrick v. Austin, 141 Kan. 778, 44 P.2d 266,
268.
MARKSMAN. In practice and conveyancing. One
who makes his mark; a person who cannot write,
and only makes his mark in executing instruments.
Arch.N.Pr. 13; 2 Chit. 92.
MARKUSH DOCTRINE. The Noctrine permits an
applicant for a patent where there is no known
subgeneric term which would include elements
which applicant found useful and exclude those
which are not, to employ a generic term limited to
the elements found to be operative and recognizes
as unobjectionable as to form, claims containing
a coined subgeneric expression. In re Swenson,
C.C.P.A., 132 F.2d 336.
MARLBRIDGE, STATUTE OF. An English stat-
ute enacted in 1267 (52 Hen. III.) at Marlbridge,
(now called "Marlborough,") where parliament
was then sitting. It related to land tenures, and
to procedure, and to unlawful and excessive dis-
tresses.
MARQUE AND REPRISAL, LETTERS OF.
These words, "marque" and "reprisal," are fre-
quently used as synonymous, but, taken in their
strict etymological sense, the latter signifies a
"taking in return;" the former, the passing the
frontiers (marches) in order to such taking. Let-
ters of marque and reprisal are grantable, by the
law of nations, whenever the subjects of one state
are oppressed and injured by those of another, and
justice is denied by that state to which the oppres-
sor belongs; and the party to whom these letters
are granted may then seize the bodies or the goods
of the subjects of the state to which the offender
belongs, until satisfaction be made, wherever they
happen to be found. Reprisals are to be granted
only in case of a clear and open denial of justice.
At the present day, in consequence partly of trea-
ties and partly of the practice of nations, the
making of reprisals is confined to the seizure of
commercial property on the high seas by public
cruisers, or by private cruisers specially authorized
thereto. Brown.
MARQUE, LAW OF. A sort of law of reprisal,
which entitles him who has received any wrong
from another and cannot get ordinary justice to
take the shipping or goods of the wrong-doer,
where he can find them within his own bounds or
precincts, in satisfaction of the wrong. Cowell;
Brown.
MARQUIS, or MARQUESS. In English law, one
of the second order of nobility; next in order to a
duke.
MARQUISATE. The seigniory of a marquis.
MARRIAGE. Marriage, as distinguished from
the agreement to marry and from the act of be-
coming married, is the civil status, condition, or
relation of one man and one woman united in law
for life, for the discharge to each other and the
community of the duties legally incumbent on
those whose association is founded on the distinc-
tion of sex. 1 Bish.Mar. & Div. § 3; Collins v.
Hoag & Rollins, 121 Neb. 716, 238 N.W. 351, 355;
Allen v. Allen, 73 Conn. 54, 46 A. 242, 49 L.R.A.
142.
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MARRIAGE
A contract, according to the form prescribed by
law, by which a man and woman, capable of en-
tering into such contract, mutually engage with
each other to live their whole lives together in the
state of union which ought to exist between a hus-
band and wife. Shelf. Mar. & Div. 1; Seuss v.
Schukat, 358 III. 27, 192 N.E. 668, 671, 95 A.L.R.
1461.
The word also signifies the act, ceremony, or
formal proceeding by which persons take each
other for husband and wife. Davis v. Davis, 119
Conn. 194, 175 A. 574, 575.
In old English law, marriage is used in the sense
of "maritagium," (q. v.,) or the feudal right en-
joyed by the lord or guardian in chivalry of dis-
posing of his ward in marriage.
Avail of marriage. See that title.
Consensual marriage. See that title.
Common-law marriage. See Common Law.
Fleet marriages. There were in the neighbor-
hood of the Fleet prison about sixty marriage
houses, some of which were public houses and oth-
ers not. They were known by having a sign-board,
with joined hands, in addition to the public house
sign. At the doors of these houses persons called
Pliers solicited the passers-by to come in and be
married, and in these houses persons who were,
or pretended to be, clergymen performed the mar-
riage ceremony and made entries in registers
that were kept at the respective houses. There is
little doubt that many entries had false dates, that
persons who were married personated others, and
that women who wished to plead a plea of cover-
ture or hide their shame were married to men who,
for a trifling gratuity, married any woman who
would pay them, though they had previously mar-
ried others. Such marriages also took place in
the neighborhood of the King's Bench prison, at
the Savoy, in the Mint, in the Borough, and at the
Mayfair Chapel.
It is said in 1 Peake N.P.C. 303, that a marriage in the
Fleet was considered at that time good and legal. In 13
Carr. & P. 581 (34 E.C.L.R.), Patteson, J., said: "I shall
not receive the Fleet Registry in evidence for any purpose
whatever." They were refused in 1 Peake N.P.C. 303. A
collection of over a thousand Fleet registers have been
deposited in the Registry, of the Bishop of London.
See Extracts from these registers and a historical note
In 34 E.C.L.R. 534; Burns, Fleet Registers,
Jactitation of marriage. See Jactitation.
Manus marriage. A form of marriage in early
Rome; it formed a relation called manus (hand)
and brought the wife into the husband's power,
placing her as to legal rights in the position of
a daughter. Bryce, Marr. & Divorce, in 3 Sel.
Essays in Anglo-Amer.L.H. 787.
Mixed marriage. A marriage between persons
of different nationalities; or, more particularly, be-
tween persons of different racial origin; as be-
tween a white person and a negro or an Indian.
Morganatic marriage. The lawful and insep-
arable conjunction of a man, of noble or Illustri-
ous birth, with a woman of inferior station, upon
condition that neither the wife nor her children
shall partake of the titles, arms, or dignity of the
husband, or succeed to his inheritance, but be con-
tented with a certain allowed rank assigned to
them by the morganatic contract. But since these
restrictions relate only to the rank of the parties
and succession to property, without affecting the
nature of a matrimonial engagement, it must be
considered as a just marriage. The marriage cer-
emony was regularly performed; the union was
indissoluble; the children legitimate. Wharton.
Plural marriage. In general, any bigamous or
polygamous union, but particularly, a second or
subsequent marriage of a man who already has
one wife living under system of polygamy. See
Freil v. Wood, 1 Utah 165.
Scotch marriage. A marriage contracted with-
out any formal solemnization or religious cere-
mony, by the mere mutual agreement of the par-
ties per verba de prcesenti in the presence of wit-
nesses, recognized as valid by the Scottish law.
MARRIAGE ACT, ROYAL. An act of 12 Geo.
III, c. 1 (1772), by which members of the royal
family are forbidden to marry without the king's
consent, or except on certain onerous conditions.
MARRIAGE ARTICLES. Articles of agreement
between parties contemplating marriage, intended
as preliminary to a formal marriage settlement, to
be drawn after marriage. Ath.Mar.Sett. 92.
MARRIAGE BROKERAGE. The act by which a
third person, for a consideration, negotiates a mar-
riage between a man and woman. The money
paid for such services is also known by this name.
Hellen v. Anderson, 83 Ill.App. 509; White v.
Equitable Nuptial Ben. Union, 76 Ala. 251, 52 Am.
Rep. 325.
MARRIAGE CEREMONY. The form, religious or
civil, for the solemnization of a marriage.
MARRIAGE CERTIFICATE. An instrument
which certifies a marriage, and is executed by the
person officiating at the marriage; it is not in-
tended to be signed by the parties. Spencer v.
Spencer, 84 Misc.Rep. 264, 147 N.Y.S. 111, 113.
MARRIAGE CONSIDERATION. The considera-
tion furnished by an intended marriage of two
persons. It is the highest consideration known to
the law.
MARRIAGE LICENSE. A license or permission
granted by public authority to persons who intend
to intermarry, usually addressed to the minister
or magistrate who is to perform the ceremony, or,
in general terms, to any one authorized to solemn-
ize marriages. By statute in some jurisdictions,
it is made an essential prerequisite to the lawful
solemnization of the marriage.
MARRIAGE—NOTICE BOOK. A book kept, in
England, by the registrar, in which applications
for and issue of registrar's licenses to marry are
recorded.
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MARSHALING
MARRIAGE PER VERBA DE PRAESENTI. To
constitute such a marriage, there must be an
agreement to become husband and wife immedi-
ately from the time when the mutual consent is
given. Pitney v. Pitney, 151 Kan. 848, 101 P.2d
933, 935.
MARRIAGE PORTION. Dowry; a sum of money
or other property which is given to or settled on a
woman on her marriage. In re Croft, 162 Mass.
22, 37 N.E. 784.
MARRIAGE PROMISE. Betrothal; engagement
to intermarry with another. Perry v. Orr, 35 N.
J.L. 296.
MARRIAGE SETTLEMENT. A written agree-
ment in the nature of a conveyance, called a "set-
tlement," which is made in contemplation of a
proposed marriage and in consideration thereof,
either by the parties about to intermarry, or one
of them, or by a parent or relation on their behalf,
by which the title to certain property is settled,
i. e., fixed or limited to a prescribed course of suc-
cession; the object being, usually, to provide for
the wife and children. Thus, the estate might be
limited to the husband and issue, or to the wife
and issue, or to husband and wife for their joint
lives, remainder to the survivor for life, remainder
over to the issue, or otherwise. Such settlements
may also be made after marriage, in which case
they are called "postnuptial."
MARRIED WOMAN. A woman who has a hus-
band living and not divorced; a feme covert.
MARSHAL. In old English law, the title borne
by several officers of state and of the law, of whom
the most important were the following: (1) The
earl-marshal, who presided in the court of chival-
ry; (2) the marshal of the king's house, or knight-
marshal, whose special authority was in the king's
palace, to hear causes between members of the
household, and punish faults committed within
the verge; (3) the marshal of the king's bench
prison, who had the custody of that jail; (4) the
marshal of the exchequer, who had the custody
of the king's debtors; (5) the marshal of the
judge of assize, whose duty was to swear in the
grand jury.
In American law, an officer pertaining to the or-
ganization of the federal judicial system, whose
duties are similar to those of a sheriff. He is to
execute the process of the United States courts
within the district for which he is appointed, etc.
Also, in some of the states, this is the name of
an officer of police, in a city or borough, having
powers and duties corresponding generally to
those of a constable or sheriff.
MARSHAL OF THE QUEEN'S BENCH. An of-
ficer who had the custody of the queen's bench
prison. The St. 5 & 6 Vict. c. 22, abolished this
office, and substituted an officer called "keeper of
the queen's prison."
MARSHALING. Arranging, ranking, or dispos-
ing in order; particularly, in the case of a group
or series -of conflicting claims or interests, arrang-
ing them in such an order of sequence, or so di-
recting the manner of their satisfaction, as shall
secure justice to all persons concerned and the
largest possible measure of satisfaction to each.
See sub-titles infra.
MARSHALING ASSETS. In equity, the arrang-
ing or ranking of assets in the due order of admin-
istration. Such an arrangement of the different
funds under administration as shall enable all the
parties having equities therein to receive their due
proportions, notwithstanding any intervening in-
terests, liens, or other claims of particular persons
to prior satisfaction out of a portion of these
funds. In re Van Zandt's Estate, 142 Misc. 663, 255
N.Y.S. 359, 366. The arrangement or ranking' of
assets in a certain order towards the payment of
debts. 1 Story, Eq.Jur. § 558; 4 Kent, Comm.
421. The arrangement of assets or claims so as to
secure the proper application of the assets to the
various claims; especially when there are two
classes of assets, and some creditors can enforce
their claims against both, and others against only
one, and the creditors of the former class are com-
pelled to exhaust the assets against which they
alone have a claim before having recourse to other
assets, thus providing for the settlement of as
many claims as possible. Pub.St.Mass. p. 1292.
MARSHALING LIENS. The ranking or ordering
of several estates or parcels of land, for the satis-
faction of a judgment or mortgage to which they
are all liable, though successively conveyed away
by the debtor. The rule is that, where lands sub-
ject to the lien of a judgment or mortgage have
been sold or incumbered by the owner at different
times to different purchasers, the various tracts
are liable to the satisfaction of the lien in the in-
verse order of their alienation or incumbrance, the
land last sold being first chargeable. 1 Black,
Judgm. § 440.
MARSHALING REMEDIES. The basis for
"marshaling of remedies" is that where one cred-
itor has security on two funds of common debtor
and another creditor has security on only one of
such funds, second creditor has right in equity to
compel first creditor to resort to the other fund, if
it is necessary for satisfaction of both creditors
and will not prejudice rights or interests of party
entitled to double fund, do injustice to debtor, or
operate inequitably on other persons' interests.
Greenwich Trust Co. v. Tyson, 129 Conn. 211, 27
A.2d 166, 174.
MARSHALING SECURITIES. An equitable
practice, which consists in so ranking or arrang-
ing classes of creditors, with respect to the assets
of the common debtor, as to provide for satisfac-
tion of the greatest number of claims. The proc-
ess is this: Where one class of creditors have liens
or securities on two funds, while another class of
creditors can resort to only one of those funds,
equity will compel the doubly-secured creditors to
first exhaust that fund which will leave the single
security of the other creditors intact. See 1 Story,
Eq.Jur. § 633; Dilworth v. Federal Reserve Bank
of St. Louis, 170 Miss. 373, 154 So. 535, 540, 92 A.
L.R. 1076.
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MARSHALSEA
MARSHALSEA. In English law, a prison belong-
ing to the king's bench. It has now been consoli-
dated with others, under the name of the "King's
Prison."
MARSHALSEA, COURT OF. In English law, the
court or seat of the marshal. A court originally
held before the steward and marshal of the king's
house, instituted to administer justice between the
king's domestic servants. It had jurisdiction of
all trespasses committed within the verge of the
king's court, where one of the parties was of the
royal household; and of all debts and contracts,
when both parties were of that establishment.
It was abolished by 12 & 13 Vict. c. 101, § 13. Moz-
ley & Whitley.
MART. A place of public traffic or sale.
MARTE SUO DECURRERE. Lat. To run by its
own force. A term applied in the civil law to a
suit when it ran its course to the end without any
impediment. Calvin.
MARTIAL LAW. Exists when military authori-
ties carry on government or exercise various de-
grees of control over civilians or civilian author-
ities in domestic territory. Ochikubo v. Bonesteel,
D.C.Cal., 60 F.Supp. 916, 928, 929, 930. A system
of law, obtaining only in time of actual war and
growing out of the exigencies thereof, arbitrary in
its character, and depending only on the will of
the commander of an army, which is established
and administered in a place or district of hostile
territory held in belligerent possession, or, some-
times, in places occupied or pervaded by insur-
gents or mobs, and which suspends all existing
civil laws, as well as the civil authority and the or-
dinary administration of justice. In re Ezeta, D.
C.Cal., 62 F. 972; Corn. v. Shortall, 206 Pa. 165, 55
A. 952, 65 L.R.A. 193. See, also, Military Law.
"Martial law, which is built upon no settled principles,
but is entirely arbitrary in its decisions, is in truth and
reality no law, but something indulged rather than al-
lowed as a law. The necessity of order and discipline in
an army is the only thing which can give it countenance,
and therefore it ought not to be permitted in time of
peace, when the king's courts are open for all persons to
receive justice according to the laws of the land." 1 Bl.
Comm. 413.
Martial law is neither more nor less than the will of the
general who commands the army. It overrides and sup-
presses all existing civil laws, civil officers, and civil
authorities, by the arbitrary exercise of military power;
and every citizen or subject—in other words, the entire
population of the country, within the confines of its pow-
er—is subjected to the mere will or caprice of the com-
mander. He holds the lives, liberty, and property of all
in the palm of his hand. Martial law is regulated by no
known or established system or code of laws, as it is over
and above all of them. The commander is the legislator,
judge, and executioner. In re Egan, 5 Blatchf. 321, F.Cas.
No.4,303.
MARTINMAS. The feast of St. Martin of Tours,
on the 11th of November; sometimes corrupted
into "Martilmas" or "Martlemas." It is the third
of the four cross quarter-days of the year. Whar-
ton.
MARUS. In old Scotch law, a maire; an officer or
executor of summons. Otherwise called "prceco
regis." Skene.
MASAGIUM. L. Lat. A messuage.
MASH. "Mash" means crushed malt, meal, rye,
and the like steeped and mixed in hot water to
form wort; a mixture of grain, meal, or the like,
and hot water fed to animals; to subject crushed
malt to action of hot water by heating and stir-
ring to prepare extract known as wort; to con-
vert into a mass; to reduce to soft pulpy state by
heating or pressure; to bruise; to crush. Whis-
nant v. State, 39 Okl.Cr. 214, 264 P. 837, 839.
MASHGIACH. A qualified supervisor designated
by rabbinical authority to supervise the receipt
and handling of kosher meat. People on Com-
plaint of Waller v. Jacob Branfman & Son, 147
Misc. 290, 263 N.Y.S. 629.
MASOCHISM. [From Leopold von Sacher-Ma-
soch, a nineteenth-century Austrian novelist and
historian.] A form of perversion in which sexual
pleasure is heightened when one is beaten and
maltreated at the hands of the other party; the
opposite of sadism. Stedman's Med.Dict. (11th
Ed.1930). Sexual perversion, in which a member
of one sex takes delight in being dominated, even
to the extent of violence or cruelty, by one of the
other sex. Dunglison's Med.Dict. (1893), quoted
in Murray's (Oxford) New English Dict.
MASON AND DIXON'S LINE. The boundary
line between Pennsylvania on the north and Mary-
land on the south, celebrated before the extinc-
tion of slavery as the line of demarcation between
the slave and the free states. It was run by
Charles Mason and Jeremiah Dixon, commission-
ers in a dispute between the Penn Proprietors and
Lord Baltimore. The line was carried 244 miles
from the Delaware river where it was stopped by
Indians. A resurvey was made in 1849, and in
1900 a new survey was authorized by the two
states.
MASS PICKETING. The use of a large number
of pickets. Lilly Dache, Inc., v. Rose, Sup., 28 N.
Y.S.2d 303, 305.
MASS STRIKE. The striking or ceasing to work
by concerted action of all working classes, thus
paralyzing and bringing to an end government and
its functions. People v. Gitlow, 234 N.Y. 132, 136
N.E. 317, 320.
MASSA. In civil law, a mass; an unwrought sub-
stance, such as gold or silver, before it is wrought
into cups or other articles. Dig. 47, 2, 52, 14;
Fleta, lib. 2, c. 60, §§ 17, 22.
MASSACHISM. See Masochism.
MASSACHUSETTS RULE. As regards sending
out checks through banks for collection, the "Mas-
sachusetts rule" is that each bank that receives
the item acts as an agent for the depositor; but
in some other states, the "New York rule" pre-
vails, under which only the bank first receiving
the item is responsible to, or is the agent of, the
depositor, the other banks being the agent of the
bank, in the process of the collection. People's
Gin Co. v. Canal Bank & Trust Co., 168 Miss. 630,
144 So. 858, 860.
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MASTER
MASSACHUSETTS TRUST. A business organi-
zation wherein property is conveyed to trustees
and managed for benefit of holders of certificates
like corporate stock certificates. Enochs & Flow-
ers v. Roell, 170 Miss. 44, 154 So. 299.
MASSES. Religious ceremonials or observances
of the Roman Catholic Church.
MAST. To fatten with mast (acorns, etc.). 1
Leon. 186.
MAST-SELLING. In old English law, the prac-
tice of selling the goods of dead seamen at the
mast. Held void. 7 Mod. 141.
MASTER. A principal who employs another to
perform service in his affairs and who controls or
has right to control physical conduct of other in
performance of the service. King v. Ransburg,
111 Ind.App. 523, 39 N.E.2d 822, 829.
One having authority; one who rules, directs,
instructs, or superintends; a head or chief; an
instructor; an employer. Applied to several ju-
dicial officers. See infra.
In Scotland, the title of the eldest son of a vis-
count or baron. Cent. Dict.
Special master. A master in chancery appoint-
ed to act as the representative of the court in some
particular act or transaction, as, to make a sale
of property under a decree. Guaranty Trust, etc.,
Co. v. Delta & Pine Land Co., C.C.A.Miss., 104 F.
5, 43 C.C.A. 396; Pewabic Min. Co. v. Mason, 145
U.S. 349, 12 S.Ct. 887, 36 L.Ed. 732.
Taxing masters. Officers of the English su-
preme court, who examine and allow or disallow
items in bills of costs.
MASTER AND SERVANT. The relation of mas-
ter and servant exists where one person, for pay
or other valuable consideration, enters into the
service of another and devotes to him his per-
sonal labor for an agreed period. Sweet.
It usually contemplates employer's right to pre-
scribe end and direct means and methods of doing
work. Holleman v. Taylor, 200 N.C. 618, 158 S.E.
88, 89.
MASTER AT COMMON LAW. The title of of-
ficers of the English superior courts of common
law appointed to record the proceedings of the
court to which they belong; to superintend the is-
sue of writs and the formal proceedings in an ac-
tion; to receive and account for the fees charged
on legal proceedings, and moneys paid into court.
There are five to each court. They are appointed
under St. 7 Wm. IV. and 1 Vict. c. 30, passed in
1837. Mozley & Whitley.
MASTER IN CHANCERY. An officer of a court
of chancery who acts as an assistant to the judge
or chancellor. His office is to inquire into such
matters as may be referred to him by the court,
examine causes, take testimony, take accounts,
compute damages, etc., reporting his findings to
the court in such shape that a decree may be made;
also to take oaths and affidavits and acknowledg-
ments of deeds. In modern practice, many of
the functions of a master are performed by clerks,
commissioners, auditors, and referees, and in some
jurisdictions the office has been superseded.
Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32
L.Ed. 764; Schuchardt v. People, 99 Ill. 501, 39
Am.Rep. 34.
MASTER IN LUNACY. In English law, the mas-
ters in lunacy are judicial officers appointed by
the lord chancellor for the purpose of conducting
inquiries into the state of mind of persons alleg-
ed to be lunatics. Such inquiries usually take
place before a jury. 2 Steph.Comm. 511-513.
MASTER OF A SHIP. In maritime law, the com-
mander of a merchant vessel, who has the chief
charge of her government and navigation and the
command of the crew, as well as the general care
and control of the vessel and cargo, as the repre-
sentative and confidential agent of the owner. He
is commonly called the "captain." Martin v.
Farnsworth, 33 N.Y.Super.Ct. 260; Hubbell v.
Denison, 20 Wend., N.Y., 181.
MASTER OF THE CROWN OFFICE. The king's
coroner and attorney in the criminal department
of the court of king's bench, who prosecutes at
the relation of some private person or common in-
former, the crown being the nominal prosecutor.
St. 6 & 7 Vict. c. 20; Wharton.
MASTER OF THE FACULTIES. In English law,
an officer under the archbishop, who grants li-
censes and dispensations, etc.
MASTER OF THE HORSE. In English law, the
third great officer of the royal household, being
next to the lord steward and lord chamberlain.
He has the privilege of making use of any horses,
footmen, or pages belonging to the royal stables.
MASTER OF THE MINT. In English law, an of-
ficer who receives bullion for coinage, and pays for
it, and superintends everything belonging to the
mint. He is usually called the "warden of the
mint." It is provided by St. 33 Vict. c. 10, § 14,
that the chancellor of the exchequer for the time
being shall be the master of the mint.
MASTER OF THE ORDNANCE. In English law,
a great officer, to whose care all the royal ord-
nance and artillery were committed.
MASTER OF THE ROLLS. In English law, an
assistant judge of the court of chancery, who holds
a separate court ranking next to that of the lord
chancellor, and has the keeping of the rolls and
grants which pass the great seal, and the records
of the chancery.
He was originally appointed only for the superintend-
ence of the writs and records appertaining to the common-
law department of the court, and is still properly the chief
of the masters in chancery. 3 Steph.Comm. 417. Under
the act constituting the supreme court of judicature, the
master of the rolls becomes a judge of the high court of
justice and ex officio a member of the court of appeal. The
same act, however, provides for the abolition of this office,
under certain conditions, when the next vacancy occurs.
See 36 & 37 Vict. c. 66, §§ 5, 31, 32.
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MASTERS
MASTERS OF THE SUPREME COURT. In Eng-
lish law, officials deriving their title from Jud.
(Officers') Act 1879, and being, or filling the places
of, the sixteen masters of the common-law courts,
the queen's coroner and attorney, the master of
the crown office, the two record and writ clerks,
and the three associates. Wharton.
MASTER OF THE TEMPLE. The chief ecclesias-
tical functionary of the Temple Church.
MASTER'S REPORT. The formal report or
statement made by a master in chancery of his de-
cision on any question referred to him, or of any
facts or action he has been directed to ascertain
or take.
MASURA. In old records, a decayed house; a
wall; the ruins of a building; a certain quantity of
land about four oxgangs.
MATE. The officer second in command on a mer-
chant vessel. Ely v. Peck, 7 Conn. 242; Millaudon
v. Martin, 6 Rob., La., 539.
MATELOTAGE. In French law, the hire of a
ship or boat.
Seamanship; seaman's wages, pay.
MATER-FAMILIAS. Lat. In civil law, the moth-
er or mistress of a family. A chaste woman, mar-
ried or single. Calvin.
MATERIA. Lat. In Civil law, materials; as dis.
tinguished from species, or the form given by la.
bor and skill. Dig. 41, 1, 7, 7-12; Fleta lib. 3, c.
2, § 14.
Materials (wood) for building, as distinguished
from "lignum." Dig. 32, 55, pr.
In English law, matter; substance; subject-mat-
ter. 3 B1.Comm. 322.
MATERIAL. Important; more or less necessary;
having influence or effect; going to the merits;
having to do with matter, as distinguished from
form.
Representation relating to matter which is so substantial
and important as to influence party to whom made is "ma-
terial." McGuire v. Gunn, 133 Kan. 422, 300 P. 654, 656.
Any misrepresentation bringing about issuance of policy on
reduced premium rate is "material." Brooks Transp. Co.
v. Merchants' Mut. Casualty Co., 6 W.W.Harr. 40, 171 A.
207.
MATERIAL ALLEGATION. An allegation is
said to be material when it forms a substantive
part of the case presented by the pleading. A ma-
terial allegation in a pleading is one essential to
the claim or defense, and which could not be strick-
en from the pleading without leaving it insuffici-
ent. Lusk v. Perkins, 48 Ark. 247, 2 S.W. 847;
Wheeler v. Hurley, 49 Nev. 70, 236 P. 559, 560. A
material alteration in any written instrument is
one which changes its tenor, or its legal meaning
and effect; one which causes it to speak a lan-
guage different in effect from that which it orig-
inally spoke. White v. Harris, 69 S.C. 65, 48 S.E.
41, 104 Am.St.Rep. 791; Foxworthy v. Colby, 64
Neb. 216, 89 N.W. 800, 62 L.R.A. 393.
MATERIAL ALTERATION. Alteration of in-
strument is "material" if legal effect thereof is
changed notwithstanding triviality of change or
whether it may be beneficial or detrimental to par-
ty to be charged on contract. Cook v. Parks, 46
Ga.App. 749, 169 S.E. 208, 210.
MATERIAL EVIDENCE. Such as is relevant and
goes to the substantial matters in dispute, or has
a legitimate and effective influence or bearing on
the decision of the case. Porter v. Valentine, 18
Misc. 213, 41 N.Y.S. 507; Connecticut Fire Ins. Co.
of Hartford, Conn., v. George, 52 Okl. 432, 153 P.
116, 119. "Materiality," with reference to evidence
does not have the same signification as "relevan-
cy." Pangburn v. State, Tex.Cr.App., 56 S.W.
72, 73.
MATERIAL FACT. (In contracts.) One which
constitutes substantially the consideration of the
contract, or without which it would not have been
made. Lyons v. Stephens, 45 Ga. 143.
(In pleading and practice.) One which is es-
sential to the case, defense, application, etc., and
without which it could not be supported. Sand-
heger v. Hosey, 26 W.Va. 223; Davidson v. Hack-
ett, 49 Wis. 186, 5 N.W. 459; Hansen v. Sandvik,
128 Wash. 60, 222 P. 205, 207.
One which tends to establish any of issues raised. Sher-
wood Bros. v. Yellow Cab Co. of Philadelphia, 283 Pa. 488,
129 A. 563, 564. The "material facts" of an issue of fact
are such as are necessary to determine the issue. Wool-
man Const. Co. v. Sampson, 219 Mich. 125, 188 N.W. 420,
422.
(In insurance.) A fact which, if communicated to the
agent or insurer, would induce him either to decline the
insurance altogether, or not accept it unless a higher pre-
mium is paid. Berry v. Equitable Fire & Marine Ins. Co.,
Mo.App., 263 S.W. 884, 886; Franklin Life Ins. Co. v. Dos-
sett, Tex.Civ.App., 265 S.W. 259, 262. One which neces-
sarily has some bearing on the subject-matter. Wittels
Loan & Mercantile Co. v. American Cent. Ins. Co., Mo.
App., 273 S.W. 1084, 1086. A fact which increases the risk,
or which, if disclosed, would have been a fair reason for
demanding a higher premium; any fact the knowledge or
ignorance of which would naturally influence the insurer
in making or refusing the contract, or in estimating the
degree and character of the risk, or in fixing the rate.
Boggs v. Insurance Co., 30 Mo. 68; Clark v. Insurance Co.,
40 N.H. 338, 77 Am.Dec. 721; Murphy v. Insurance Co.,
205 Pa. 444, 55 A. 19; Penn Mut. L. Ins. Co. v. Mechanics'
Say . Bank, 19 C.C.A. 286, 72 F. 413, 38 L.R.A. 33.
MATERIALMAN. A person who has furnished
materials used in the construction or repair of a
building, structure, or vessel. Hihn-Hammond
Lumber Co. v. Elsom, 171 Cal. 570, 154 P. 12, 13,
Ann.Cas.1917C, 798; Royal Indemnity Co. v. Day &
Maddock Co., 114 Ohio St. 58, 150 N.E. 426, 427, 44
A.L.R. 374.
MATERIALS. The substance or matter of which
anything is made. Mutual Lumber Co. v. Shep-
pard, Tex.Civ.App., 173 S.W.2d 494, 498. Matter
furnished for the erection of a house, ship, or other
structure which enters into and becomes a part
thereof. Moyer v. Pennsylvania Slate Co., 71
Pa. 293; Standard Oil Co. v. Detroit Fidelity &
Surety Co., 24 Ohio App. 237, 157 N.E. 418, 420;
Royal Indemnity Co. v. Day & Maddock Co., 114
Ohio St. 58, 150 N.E. 426, 427, 44 A.L.R. 374; Fay
v. Bankers' Surety Co., 125 Minn. 211, 146 N.W.
359, 360, Ann.Cas.1915C, 688.
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MATRON
MATERNA MATERNIS. Lat. A maxim of the
French law, signifying that property of a decedent
acquired by him through his mother descends to
the relations on the mother's side.
MATERNAL. That which belongs to, or comes
from, the mother; as maternal authority, mater-
nal relation, maternal estate, maternal line.
MATERNAL LINE. A line of descent or relation-
ship between two persons which is traced through
the mother of the younger.
MATERNAL PROPERTY. That which comes
from the mother of the party, and other ascend-
ants of the maternal stock. Dom.Liv.Prel. t. 3, s.
2, no. 12.
MATERNITY. The character, relation, state, or
condition of a mother.
MATERTERA. Lat. In civil law, a maternal
aunt; a mother's sister. Inst. 3, 6, 1; Bract. fol.
68b.
MATERTERA MAGNA. A great aunt; a grand-
mother's sister, (avice soror.) Dig. 38, 10, 10, 15.
MATERTERA MAJOR. A greater aunt; a great-
grandmother's sister, (proavice soror;) a father's
or mother's great-aunt, (patris vel matris mater-
tera magna.) Dig. 38, 10, 10, 16.
MATERTERA MAXIMA. A greatest aunt; a
great-great-grandmother's sister, (abavice soror;)
a father's or mother's greater aunt, (patris vel
matris matertera major.) Dig. 38, 10, 10, 17.
MATHEMATICAL EVIDENCE. Demonstrative
evidence; such as establishes its conclusions with
absolute necessity and certainty. It is used in
contradistinction to moral evidence.
MATIMA. A godmother.
MATRICIDE. The murder of a mother; or one
who has slain his mother.
MATRICIJLA. In civil and old English law, a
register of the admission of officers and persons
entered into any body or society, whereof a list
was made. Hence those who are admitted to a col-
lege or university are said to be "matriculated."
Also a kind of almshouse, which had revenues ap-
propriated to it, and was usually built near the
church, whence the name was given to the church
itself. Wharton.
MATRICULATE. To enroll; to enter in a regis-
ter; specifically, to enter or admit to membership
in a body or society, particularly in a college or
university, by enrolling the name in a register;
to go through the process of admission to mem-
bership, as by examination and enrollment, in a
society or college. State v. Regents of University
System of Georgia, 179 Ga. 210, 175 S.E. 567.
MATRIMONIA DEBENT ESSE LIBERA. Mar-
riages ought to be free. A maxim of the civil law.
2 Kent, Comm. 102.
MATRIMONIAL. Of or pertaining to matrimony
or the estate of marriage.
MATRIMONIAL ACTION. An action seeking a
determination of the marital status of the parties
and brought or defended in an endeavor to sus-
tain or prevent the destruction of such marital
status. Kraunz v. Kraunz, 183 Misc. 724, 51 N.Y.S.
2d 433, 436.
MATRIMONIAL CAUSES. In English ecclesias-
tical law, causes of action or injuries respecting
the rights of marriage. One of the three divisions
of causes or injuries cognizable by the ecclesias-
tical courts, comprising suits for jactitation of
marriage, and for restitution of conjugal rights,
divorces, and suits for alimony. 3 Bl.Comm. 92-
94; 3 Steph.Comm. 712-714.
MATRIMONIAL COHABITATION. The living
together of a man and woman ostensibly as hus-
band and wife. Cox v. State, 117 Ala. 103, 23 So.
806, 41 L.R.A. 760. Also the living together of
those who are legally husband and wife, the term
carrying with it, in this sense, an implication of
mutual rights and duties as to sharing the same
habitation. Forster v. Forster, 1 Hagg.Consist.
144; U. S. v. Cannon, 4 Utah, 122, 7 P. 369.
MATRIMONIAL DOMICILE. Place where par-
ties live together as husband and wife either ac-
tually or constructively. Ex parte Allan, 220 Ala.
482, 125 So. 612, 614.
MATRIMONIAL RES. The marriage state. Us-
en v. Usen, 136 Me. 480, 13 A.2d 738, 749, 128 A.L.R.
1449.
MATRIMONIUM. Lat. In Roman law, a legal
marriage, contracted in strict accordance with
the forms of the older Roman law, i. e., either with
the farreum, the coemptio, or by usus.
This was allowed only to Roman citizens and to those
neighboring peoples to whom the right of connubium had
been conceded. The effect of such a marriage was to bring
the wife into the manus, or marital power, of the husband,
and to create the patria potestas over the children.
MATRIMONIUM SUBSEQUENS TOLLIT PEC-
CATUM PRIECEDENS. Subsequent marriage
cures preceding criminality.
MATRIMONY. Marriage, (q. v.,) in the sense of
the relation or status, not of the ceremony.
MATRIX. In civil law, the protocol or first draft
of a legal instrument, from which all copies must
be taken. Downing v. Diaz, 80 Tex. 436, 16 S.W.
53.
MATRIX ECCLESIA. Lat. A mother church.
This term was anciently applied to a cathedral, in
relation to the other churches in the same see, or
to a parochial church, in relation to the chapels
or minor churches attached to it or depending on
it. Blount.
MATRON. A married woman; an elderly wo-
man. The female superintendent of an establish-
ment or institution, such as a hospital, an orphan
asylum, etc., is often so called. Fisher v. Gard-
nier, 183 Mich. 660, 150 N.W. 358.
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MATRONS
MATRONS, JURY OF. In common-law practice,
a jury of twelve matrons or discreet women, im-
paneled upon a writ de ventre ins piciendo, or
where a female prisoner, being under sentence of
death, pleaded her pregnancy as a ground for
staying execution. In the latter case, such jury
inquired into the truth of the plea.
MATTER. Substantial facts forming basis of
claim or defense; facts material to issue; sub-
stance as distinguished from form; transaction,
event, occurrence; subject-matter of controversy;
special proceeding. Parker v. Bowen, 98 Vt. 115,
126 A. 522, 523; Bishop v. Shurly, 237 Mich. 76, 211
N.W. 75, 78; Rubin v. Sheldon, 130 Misc. 588, 224
N.Y.S. 340, 341; People v. Anderson, 62 Cal.App.
222, 216 P. 401, 402; Franklin Buggy Co. v. Car-
ter, 21 Ga.App. 576, 94 S.E. 820.
MATTER IN CONTROVERSY, or IN DISPUTE.
Subject of litigation, matter on which action is
brought and issue is joined and in relation to
which, if issue be one of fact, testimony is taken.
Golden v. Sixth Judicial Dist. Ct. in and for Persh-
ing County, 57 Nev. 114, 58 P.2d 1042, 1044. Rights
which plaintiffs assert and seek to have protected
and enforced. Gavica v. Donaugh, C.C.A.Or., 93
F.2d 173, 175.
MATTER IN DEED. Such matter as may be
proved or established by a deed or specialty. Mat-
ter of fact, in contradistinction to matter of law.
Co.Litt. 320; Steph.Pl. 197.
MATTER IN ISSUE. That matter on which
plaintiff proceeds by his action, and which defend-
ant controverts by his pleadings. MacKenzie v.
Union Guardian Trust Co., 262 Mich. 563, 247 N.W.
914. Not including facts offered in evidence to
establish the matters in issue. King v. Chase, 15
N.H. 9, 41 Am.Dec. 675. That ultimate fact or
state of facts in dispute upon which the verdict
or finding is predicated. Clark v. Arizona Mut.
Savings & Loan Ass'n, D.C.Ariz., 217 F. 640, 644.
See 2 Black, Judgm. § 614, and cases cited.
MATTER IN LEY NE SERRA MISE IN BOUT-
CHE DEL JURORS. Jenk.Cent. 180. Matter of
law shall not be put into the mouth of the jurors.
MATTER IN PAIS. Matter of fact that is not in
writing; thus distinguished from matter in deed
and matter of record; matter that must be proved
by parol evidence.
MATTER OF COURSE. Anything done or taken
in the course of routine or usual procedure, which
is permissible and valid without being specially
applied for and allowed.
MATTER OF FACT. That which is to be ascer-
tained by the senses, or by the testimony of wit-
nesses describing what they have perceived. Dis-
tinguished from matter of law and matter of opin-
ion. Moses v. United States, C.C.A.Vt., 221 F. 863,
871.
MATTER OF FORM. See Form.
MATTER OF LAW. Whatever is to be ascertain-
ed or decided by the application of statutory rules
or the principles and determinations of the law,
as distinguished from the investigation of particu-
lar facts, is called "matter of law."
MATTER OF RECORD. Any judicial matter or
proceeding entered on the records of a court, and
to be proved by the production of such record. It
differs from matter in deed, which consists of
facts which may be proved by specialty.
MATTER OF RECORD, ESTOPPEL BY. See
Record, Estoppel By.
MATTER OF SUBSTANCE. That which goes to
the merits. The opposite of matter of form.
MATTERS OF SUBSISTENCE FOR MAN. This
phrase comprehends all articles or things, whether
animal or vegetable, living or dead, which are us-
ed for food, and whether they are consumed in the
form in which they are bought from the producer
or are only consumed after undergoing a process
of preparation, which is greater or less, according
to the character of the article. Sledd v. Com., 19
Grat., Va., 813.
MATURE; MATURED. A claim is "matured" for
receivership purposes if it has become absolutely
due without contingency, although not necessar-
ily liquidated nor presently payable. In re L. P.
Hollander Co., 301 Mass. 278, 16 N.E.2d 35, 3e
MATURIORA SUNT VOTA MULIERUM QUAM
VIRORUM. 6 Coke, 71. The desires of women
are more mature than those of men;  e., women
arrive at maturity earlier than men.
MATURITY. Termination of period a note or
other obligation has to run. Pacific States Sav-
ings & Loan Co. v. Hollywood Knickerbocker, 11
Cal.App.2d 56, 52 P.2d 1014, 1017. In mercantile
law, the time when a bill of exchange or promis-
sory note becomes due. Story, Bills, § 329. Gil-
bert v. Sprague, 88 Ill.App. 508; Wheeless v. Wil-
liams, 62 Miss. 371, 52 Am.Rep. 190.
MAUGRE. L. Fr. In spite of; against the will
of. Litt. § 672.
MAUNDY THURSDAY. The day preceding Good
Friday, on which princes gave alms.
See Mandato, Panes De.
MAXIM. "Maxims" are but attempted general
statements of rules of law and are law only to ex-
tent of application in adjudicated cases. Swetland
v. Curtiss Airports Corporation, D.C.Ohio, 41 F.
2d 929, 936. An established principle or proposi-
tion. A principle of law universally admitted, as
_being a correct statement of the law, or as agree-
able to reason.
Coke defines a maxim to be "conclusion of rea-
son," and says that it is so called "quia maxima
ejus dignitas et certissima auctoritas, et quod
maxime omnibus probetur." Co.Litt. 11a. He
says in another place: "A maxime is a proposi-
tion to be of all men confessed and granted with-
out proofe, argument, or discourse." Id. 67a.
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MEANDER
The maxims of the law, in Latin, French, and
English, will be found distributed through this
book in their proper alphabetical order.
MAXIME PACI SUNT CONTRARIA VIS ET IN-
JURIA. The greatest enemies to peace are force
and wrong. Co.Litt. 161b.
MAXIMUM. The highest or greatest amount,
quality, value, or degree. Moweaqua Coal Corpo-
ration v. Industrial Commission, 360 Ill. 194, 195
N.E. 607.
MAXIMUS ERRORIS POPULUS MAGISTER.
Bacon. The people is the greatest master of er-
ror.
MAY. An auxiliary verb qualifying the meaning
of another verb by expressing ability, competency,
liberty, permission, possibility, probability or con-
tingency. U. S. v. Lexington Mill & E. Co., 232
U.S. 399, 34 S.Ct. 337, 340, 58 L.Ed. 658, L.R.A.
1915B, 774; Carson v. Turrish, 140 Minn. 445, 168
N.W. 349, 352, L.R.A.1918F, 164. Regardless of
the instrument, however, whether constitution,
statute, deed, contract or whatnot, courts not in-
frequently construe "may" as "shall" or "must"
to the end that justice may not be the slave of
grammar. Minor v. Mechanics' Bank, 1 Pet. 46,
64, 7 L.Ed. 47; Appeal of Burnap, 94 Conn. 286, 108
A. 802, 804; Stapler v. El Dora Oil Co., 27 Cal.App.
516, 150 P. 643, 645.
MAYHEM. Unlawfully and violently depriving
another of the use of such of his members as
may render him the less able in fighting, either
to defend himself, or to annoy his adversary. 4
Bl.Comm. 205. State v. Deso, 110 Vt. 1, 1 A.2d 710,
714.
Every person who unlawfully and maliciously
deprives a human being of a member of his body,
or disables, disfigures, or renders it useless, or
cuts or disables the tongue, or puts out an eye,
or slits the nose, ear, or lip, is guilty of mayhem.
Pen.Code Cal. § 203.
MAYHEMAVIT. Maimed. This was a term of art
which could not be supplied in pleading by any
other word, as mutilavit, truncavit, etc. 3 Thorn
Co. Litt. 548; Corn. v. Newell, 7 Mass. 247.
MAYN. L. Fr. A hand; handwriting. Britt. c.
28.
MAYNOVER. L. Fr. A work of the hand; a
thing produced by manual labor. Yearb. M. 4
Edw. III. 38.
MAYOR. The executive head of a municipal cor-
poration; the governor or chief magistrate of a
city. Waldo v. Wallace, 12 Ind. 577; People v. New
York, 25 Wend., N.Y., 36.
MAYOR'S COURT. A court established in some
cities, in which the mayor sits with the powers of
a police judge or committing magistrate in respect
to offenses committed within the city, and some-
times with civil jurisdiction in small causes, or
other special statutory powers.
MAYOR'S COURT OF LONDON. An inferior
court having jurisdiction in civil cases where the
whole cause of action arises within the city of
London.
MAYORALTY. The office or dignity of a mayor.
MAYORAZGO. In Spanish law, the right to the
enjoyment of certain aggregate property, left with
the condition thereon imposed that they are to
pass in their integrity, perpetually, successively to
the eldest son. Schm. Civil Law, 62.
MAYORESS. The wife of a mayor.
MEAD. Ground somewhat watery, not plowed,
but covered with grass and flowers. Enc. Lond.
MEADOW. A tract of low or level land producing
grass which is mown for hay. Webster.
A tract which lies above the shore, and is over-
flowed by spring and extraordinary tides only, and
yields grasses which are good for hay. Church v.
Meeker, 34 Conn. 429. State v. Crook, 132 N.C.
1053, 44 S.E. 32.
MEAL-RENT. A rent formerly paid in meal.
MEAN, or MESNE. A middle between two ex-
tremes, whether applied to persons, things, or
time.
Average, having an intermediate value between
two extremes or between the several successive
values of variable quantity during one cycle of
variation. Western & Southern Life Ins. Co. v.
Huwe, C.C.A.Ohio, 116 F.2d 1008, 1009.
MEAN LOW TIDE. The average of all low tides
both low and lower low over a fixed period of time.
State v. Edwards, 188 Wash. 467, 62 P.2d 1094,
1095.
As applied to Puget Sound, the "Harmonic plane" is the
zero adopted by the United States Coast and Geodetic
Survey of the Department of Commerce upon which its
tidal tables, charts, and maps are based. It is an arbitrary
plane, and is the lowest plane of the tide in the Sound
recognized by that department, being approximately two
feet lower than mean lower low tide, and approximately
four feet lower than mean low tide. State v. Scott, 89
Wash. 63, 154 P. 165, 168.
MEAN LOWER LOW TIDE. The average of low-
er low tides over a fixed period of time. State v.
Edwards, 188 Wash. 467, 62 P.2d 1094, 1095.
MEAN RESERVE. The mean of the reserve at
the beginning of the policy year, after the pre-
mium for such year is paid, and the terminal re-
serve at end of such policy year. Kentucky Home
Life Ins. Co. v. Leisman, 268 Ky. 825, 105 S.W.2d
1046, 1047.
MEANDER. To meander means to follow a wind-
ing or flexuous course; and when it is said, in a
description of land, "thence with the meander of
the river," it must mean a meandered line,—a
line which follows the sinuosities of the river,—
or, in other words, that the river is the boundary
between the points indicated. Turner v. Parker,
14 Or. 341, 12 P. 495; Schurmeier v. St. Paul &
P. R. Co., 10 Minn. 100, Gil. 75, 88 Am.Dec. 59.
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MEANDER
This term is used in some jurisdictions with the
meaning of surveying and mapping a stream ac-.cording to its meanderings, or windings and turn-
ings. See Jones v. Pettibone, 2 Wis. 317.
MEANDER LINES. Lines run in surveying par-
ticular portions of the public lands which border
on navigable rivers, not as boundaries of the tract,
but for the purpose of defining the sinuosities of
the banks of the stream, and as the means of as-
certaining the quantity of land in the fraction sub-
ject to sale, and which is to be paid for by the pur-
chaser. In preparing the official plat from the
field notes, the meander line is represented as the
border line of the stream, and shows that the wa-
tercourse, and not the meander line as naturally
run on the ground, is the boundary. St. Paul & P.
R. Co. v. Schurmeier, 7 Wall. 286, 19 L.Ed. 74;
Niles v. Cedar Point Club, 175 U.S. 300, 20 S.Ct.
124, 44 L.Ed. 171; Producers' Oil Co. v. Hanszen,
61 So. 754, 132 La. 691.
MEANING. That which is, or is intended to be,
signified or denoted by act or language; significa-
tion; sense; import. Webster, Dict.
Secondary Meaning. While generic names, geographical
names, and names composed of words which are merely
descriptive are incapable of exclusive appropriation, words
or names, which have a primary meaning of their own,
such as words descriptive of the goods, service, or place
where they are made, or the name of the maker, may
nevertheless, by long use in connection with the business
of the particular trade, come to be understood by the pub-
lic as designating the goods, service, or business of a par-
ticular trader. This is what is known as the doctrine of
"secondary meaning" ; and is the origin of the law of
unfair competition, as distinguished from technical trade-
marks or trade-names. Saunders System Atlanta Co. v.
Drive It Yourself Co., 158 Ga. 1, 123 S.E. 132, 135; Rich-
mond. Remedies Co. v. Dr. Miles Medical Co., C.C.A.Mo.,
16 F.2d 598, 602. •
MEANS. That through which, or by the help of
which, an end is attained; something tending to
an object desired; intermediate agency or meas-
ure; necessary condition or co-agent; instrument.
Pope v. Business Men's Assur. Co. of America, 235
Mo.App. 263, 131 S.W.2d 887, 892; Under insurance
policy, equivalent to cause. Pope v. Business
Men's Assur. Co. of America, 235 Mo.App. 263, 131
S.W.2d 887, 892.
Enactments and initiative and referendum meas-
ures. State ex rel. Bylander v. Hoss, 143 Or. 383,
22 P.2d 883.
Resources; available property; money or prop-
erty, as an. available instrumentality _or effecting
a purpose, furnishing a livelihood, paying a debt,
or the like.
MEASURE. That by which extent or dimension
is ascertained, either length, breadth, thickness,
capacity, or amount. Webster. The rule by
which anything is adjusted or proportioned.
MEASURE OF DAMAGES. The rule, or rather
the system of rules, governing the adjustment or
apportionment of damages as a compensation for
injuries in actions at law.
MEASURE OF VALUE. In the ordinary sense of
the word, "measure" would mean something by
comparison with which we may ascertain what is
the value of anything. When we consider, further,
that value itself is relative, and that two things
are necessary to constitute it, independently of the
third thing, which is to measure it, we may define
a "measure of value" to be something by compar-
ing with which any two other things we may in-
fer their value in relation to one another. 2 Mill,
Pol. Econ. 101.
MEASURER, or METER. An officer in the city
of London, who measured woolen clothes, coals,
etc.
MEASURING MONEY. In old English law, a
duty which some persons exacted, by letters pat-
ent, for every piece of cloth made, besides alnage.
Now abolished.
MEAT. Specifically, animal flesh, though in one
sense, the word includes other foods. Gardner v.
State, 183 Ind. 101, 108 N.E. 230. Food in general;
anything eaten for nourishment, either by man or
beast; especially, solid food; hence, the edible
part of anything. Webster, Dict.
MECHANIC. A person skilled in the practical use
of tools. Warner Memorial University v. Ritenour,
Tex.Civ.App., 56 S.W.2d 236, 237. A workman em-
ployed in shaping and uniting materials, such as
wood, metal, etc., into some kind of structure, ma-
chine, or other object, requiring the use of tools.
Story v. Walker, 11 Lea, Tenn., 517, 47 Am.Rep.
305; In re Osborn, D.C.N.Y., 104 F. 781; Baker
v. Maxwell, 183 Iowa 1192, 168 N.W. 160, 2 A.L.R.
814.
MECHANIC'S LIEN. A claim created by law for
the purpose of securing priority of payment of the
price or value of work performed and materials
furnished in erecting or repairing a building or
other structure, and as such attaches to the land
as well as buildings and improvements erected
thereon. In re Louisville Daily News & Enquirer,
D.C.Ky., 20 F.Supp. 465, 466.
MECHANICAL. Having relation to, or produced
or accomplished by, the use of mechanism or ma-
chinery. Used chiefly in patent law. Of, pertain-
ing to, or concerned with, manual labor; engaged
in manual labor; of the artisan class; of, pertain-
ing to, or concerned with, machinery or mechan-
ism; made or formed by a machine or with tools.
State v. Crounse, 105 Neb. 672, 181 N.W. 562, 563,
16 A.L.R. 533.
MECHANICAL ARM. In the artificial limb trade.
An arm provided with fingers which can be moved
by some mechanical contrivance, together with
mechanism for rotating the wrist, simulating, as
nearly as possible the motion of the human wrist,
hand, and fingers. Carnes Artificial Limb Co. v.
Dilworth Arm Co., D.C.Conn., 273 F. 838, 839.
MECHANICAL EQUIVALENT. If two devices
do the same work in substantially the same way,
and accomplish substantially the same result, they
are "mechanical equivalents." Wire Tie Machin-
ery Co. v. Pacific Box Corporation, C.C.A.Cal., 107
F.2d 54, 56. A device which may be substituted or
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MEDICINE
adopted, instead of another, by any person skilled
in the particular art from his knowledge of the
art, and which is competent to perform the same
functions or produce the same result, without in-
troducing an original idea or changing the general
idea of means. Smith v. Marshall, 22 F.Cas. 595;
Alaska Packers' Ass'n v. Letson, C.C.Wash., 119
F. 611. The test of equivalency is whether the
substituted element operates in substantially the
same way to produce substantially the same result.
Palmer v. Mach. Co., C.C.N.Y., 186 F. 496.
MECHANICAL MOVEMENT. A mechanism
transmitting power or motion from a driving part
to a part to be driven; a combination and arrange-
ment of mechanical parts intended for the trans-
lation or transformation of motion. Campbell
Printing Press Co. v. Miehle Printing Press Co.,
42 C.C.A. 235, 102 F. 159.
MECHANICAL PROCESS. See Process.
MECHANICAL SKILL. As distinguished from in-
vention or inventive capacity, this term means
such skill, intelligence, ingenuity, or constructive
ability in the adaptation of means to ends as would
be possessed and exhibited by an ordinarily clever
mechanic in the practice of his particular art or
trade. Hollister v. Benedict & B. Mfg. Co., 113 U.
S. 59, 5 S.Ct. 717, 28 L.Ed. 901; Johnson Co. v.
Pennsylvania Steel Co., C.C.Pa., 67 F. 942.
MEDERIA. In old records, a house or place where
metheglin, or mead, was made.
MEDFEE. In old English law, a bribe or reward;
a compensation given in exchange, where the
things exchanged were not of equal value. Cow-
ell.
MEDIA ANNATA. In Spanish law, half-yearly
profits of land. McMullen v. Hodge, 5 Tex. 34, 79.
MEDIA CONCLUDENDI. The steps of an argu-
ment. Thus "a judgment is conclusive as to all
the media concludendi." Fauntleroy v. Lum, 210
U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039. The theory
or basis of facts upon which a legal conclusion is
reached, per Holmes, C. J., in Hoseason v. Keegen,
178 Mass. 250, 59 N.E. 627. Grounds for asserting
the right known when the suit was brought. Men-
dez v. Baetjer, C.C.A.Puerto Rico, 106 F.2d 163,
166.
MEDIA NOX. In old English law, midnight. Ad
mediam noctem, at midnight. Fleta, lib. 5, c. 5,
§ 31.
MEDLE ET INFIRMiE MANUS HOMINES.
Men of a middle and base condition. Blount.
MEDIATE POWERS. Those incident to primary
powers given by a principal to his agent.
For example, the general authority given to collect,
receive, and pay debts due by or to the principal is a pri-
mary power. In order to accomplish this, it is frequently
required to settle accounts, adjust disputed claims, resist
those which are unjust, and answer and defend suits.
These subordinate powers are sometimes called "mediate
powers." Story, Ag. § 58.
MEDIATE TESTIMONY. Secondary evidence
(q. v.).
MEDIATION. Intervention; interposition; the
act of a third person who interferes between two
contending parties with a view to reconcile them
or persuade them to adjust or settle their dispute.
In international law and diplomacy, the word
denotes the friendly interference of a state in the
controversies of others, for the purpose, by its
influence and by adjusting their difficulties, of
keeping the peace in the family of nations.
MEDIATOR. One who interposes between parties
at variance for purpose of reconciling them. Peo-
ple v. Lindsey, 86 Colo. 458, 283 P. 539, 544.
MEDIATORS OF QUESTIONS. In English law,
six persons authorized by statute, (27 Edw. III. St.
2, c. 24,) who, upon any question arising among
merchants relating to unmerchantable wool, or
undue packing, etc., might, before the mayor and
officers of the staple upon their oath certify and
settle the same; to whose determination therein
the parties concerned were to submit. Cowell.
MEDICAL. Pertaining, relating, or belonging to
the study and practice of medicine, or the science
and art of the investigation, prevention, cure, and
alleviation of disease.
MEDICAL EVIDENCE. Evidence furnished by
medical men, testifying in their professional ca-
pacity as experts, or by standard treatises on med-
icine or surgery.
MEDICAL JURISPRUDENCE. The science which
applies the principles and practice of the different
branches of medicine to the elucidation of doubtful
questions in a court of justice. Otherwise called
"forensic medicine," (q. v.). A sort of mixed
science, which may be considered as common
ground to the practitioners both of law and phys-
ics. 1 Steph.Comm. 8.
MEDICAL SERVICES. Include all services ren-
dered to deceased because of illness, upon advice
of his physician, which were reasonably necessary
for his care and comfort and proper treatment by
his physicians. Park View Hospital Ass'n v. Peo-
ples Bank & Trust Co., 211 N.C. 244, 189 S.E. 766,
769.
MEDICINE. The science and art dealing with the
prevention, cure and alleviation of diseases; in a
narrower sense that part of the science and art of
restoring and preserving health which is the prov-
ince of the physician as distinguished from the
surgeon and obstetrician. Burke v. Kansas State
Osteopathic Ass'n, C.C.A.Kan., 111 F.2d 250, 253.
The term is not limited to substances supposed to
MEDIANUS HOMO. A man of middle fortune.
MEDIATE DATUM. A fact from whose existence
may be rationally inferred the existence of ulti-
mate facts. The Evergreens v. Nunan, C.C.A. 2,
141 F.2d 927, 928.
MEDIATE DESCENT. See Descent..
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possess curative or remedial properties. People
v. Kabana, 321 Ill.App. 158, 52 N.E.2d 320.
Forensic Medicine. Another name for medical
jurisprudence. See Forensic Medicine.
Schools of Medicine. See Osteopathy; Psycho-
therapy.
MEDICINE-CHEST. A box containing an assort-
ment of medicines, required by statute to be car-
ried by all vessels above a certain tonnage.
MEDICO-LEGAL. Relating to the law concern-
ing medical questions.
MEDIETAS LINGUAE. In old practice, moiety of
tongue; half-tongue. Applied to a jury impaneled
in a cause consisting the one half of natives, and
the other half of foreigners. See De Medietate
MEDIO ACQUIETANDO. A judicial writ to dis-
train a lord for the acquitting of a mesne lord
from a rent, which he had acknowledged in court
not to belong to him. Reg. Jur. 129.
MEDITATIO FUGZE. In Scotch law, contempla-
tion of flight; intention to abscond. 2 Kames, Eq.
14, 15.
MEDITERRANEAN PASSPORT. A pass issued
by the admiralty of Great Britain under various
treaties with the Barbary States in the eighteenth
century. They were granted to British built ships
and were respected by the Barbary pirates. See
2 Halleck, Int. L., Baker's ed. 100. They were also
issued by the United States. The term is still re-
tained in R. S. § 4191, 46 U.S.C.A. § 62.
MEDIUM TEMPUS. In old English law, mean-
time; mesne profits. Cowell.
MEDLETUM. In old English law, a mixing to-
gether; a medley or melee; an affray or sudden
encounter. An offense suddenly committed in an
affray. The English word "medley" is preserved
in the term "chance-medley." An intermeddling,
without violence, in any matter of business. Spel-
man.
MEDLEY. An affray; a sudden or casual fight-
ing; a hand to hand battle; a melee. See Chance-
Medley; Chaud-Medley.
MEDSCEAT. In old English law, a bribe; hush
money.
MEDSYPP. A harvest supper or entertainment
given to laborers at harvest-home. Cowell.
MEETING. A coming together of persons; an as-
sembly. Particularly, in law, an assembling of a
number of persons for the purpose of discussing
and acting upon some matter or matters in which
they have a common interest. People v. Mintz,
106 Cal.App. 725, 290 P. 93, 100.
Called meeting. In the law of corporations, a
meeting not held at a time specially appointed for
it by the charter or by-laws, but assembled in pur-
suance of a "call" or summons proceeding from
some officer, committee or group of stockholders,
or other persons having authority in that behalf.
Family meeting. See Family.
General meeting. A meeting of all the stock-
holders of a corporation, all the creditors of a
bankrupt, etc. In re Bonnaffe, 23 N.Y. 177; Mu-
tual F. Ins. Co. v. Farquhar, 86 Md. 668, 39 A.
527.
Regular meeting. In the law of public and pri-
vate corporations, a meeting (of directors, trus-
tees, stockholders, etc.) held at the time and place
appointed for it by statute, by-law, charter or
other positive direction. State v. Wilkesville Tp.,
20 Ohio St. 293.
Special meeting. In the law of corporations.
A meeting called for special purposes; one limited
to particular business; a meeting for those pur-
poses of which the parties have had special notice.
Mutual F. Ins. Co. v. Farquhar, 86 Md. 668, 39 A.
527; Warren v. Mower, 11 Vt. 385.
Stated meeting. A meeting held at a stated or
duly appointed time and place; a regular meeting,
(q. v.).
Town meeting. See Town.
MEETING OF MINDS. The "meeting of the
minds" required to make a contract is not based
on secret purpose or intention on the part of one
of the parties, stored away in his mind and not
brought to the attention of the other party, but
must be based on purpose and intention which has
been made known or which from all the circum-
stances should be known. McClintock v. Skelly
Oil Co., 232 Mo.App. 1204, 114 S.W.2d 181, 189.
MEGALOMANIA. See Insanity.
MEGBOTE. In Saxon law, a recompense for the
murder of a relation.
MEIGNE, or MAISNADER. In old English law,
a family.
MEILICKE SYSTEM. Consists of computing frac-
tions on the basis of a 30-day month, and does not
charge interest for the 31st day of any month.
Swistak v. Personal Finance Co., 175 Misc. 791, 24
N.Y.S.2d 80, 81.
MEINDRE AGE. L. Fr. Minority; lesser age.
Kelham.
MEINY, MEINE, or MEINIE. In old English law,
a household; staff or suite of attendants; a ret-
inue; particularly, the royal household.
MEJORADO. In Spanish law, preferred; advanc-
ed. White, New Recop. 1. 3, tit. 10, c. 1, § 4.
MELANCHOLIA. In medical jurisprudence, a
kind of mental unsoundness characterized by ex-
treme depression of spirits, ill-grounded fears, de-
lusions, and brooding over one particular subject
or train of ideas. Webster. See Insanity.
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MELDFEOH. In Saxon law, the recompense due
and given to him who made discovery of any
breach of penal laws committed by another per-
son, called the "promoter's [i e., informer's] fee."
Wharton.
MELIOR. Lat. Better; the better. Melior res,
the better (best) thing or chattel. Bract. fol. 60.
MELIOR EST CAUSA POSSIDENTIS. The cause
of the possessor is preferable. Dig. 50. 17. 126. 2.
MELIOR EST CONDITIO DEFENDENTIS. The
condition of the party in possession is the better
one, i. e., where the right of the parties is equal.
Broom, Max. 715, 719.
MELIOR EST CONDITIO POSSIDENTIS, ET REI
QUAM ACTORIS. The condition of the possessor
is the better, and the condition of the defendant
is better than that of the plaintiff. 4 Inst. 180;
Broom, Max. 714, 719.
MELIOR EST CONDITIO POSSIDENTIS lUBI
NEUTER JUS HABET. Jenk. Cent. 118. The con-
dition of the possessor is the better where neither
of the two has a right.
MELIOR EST JUSTITIA VERE PRZEVENIENS
QUAM SEVERE PUNIENS. That justice which
absolutely prevents [a crime] is better than that
which severely punishes it. 3 Inst. Epil.
MELIORATIONS. In Scotch law, improvements
of an estate, other than mere repairs; better-
ments. 1 Bell, Comm. 73. Occasionally used in
English and American law in the sense of valuable
and lasting improvements or betterments. See
Green v. Biddle, 8 Wheat. 84, 5 L.Ed. 547.
MELIOREM CONDITIONEM ECCLESIZE SUZE
FACERE POTEST PRAZELATUS, DETERIOREM
NEQUAQUAM. Co. Litt. 101. A bishop can make
the condition of his own church better, but by no
means worse.
MELIOREM CONDITIONEM SUAM FACERE PO-
TEST MINOR, DETERIOREM NEQUAQUAM.
Co. Litt. 337. A minor can make his own condi-
tion better, but by no means worse.
MELIUS EST IN TEMPORE OCCURRERE,
QUAM POST CAUSAM VULNERATUM REME-
DIUM QU1ERERE. 2 Inst. 299. It is better to
meet a thing in time than after an injury inflicted
to seek a remedy.
MELIUS EST JUS DEFICIENS QUAM JUS IN-
CERTUM. Law that is deficient is better than
law that is uncertain. Lofft, 395.
MELIUS EST OMNIA MALA PATI QUAM MALO
CONSENTIRE. 3 Inst. 23. It is better to suffer
every ill than to consent to ill.
MELIUS EST PETERE FONTES QUAM SEC-
TARI RIVULOS. It is better to go to the fountain
head than to follow little streamlets.
MELIUS EST RECURRERE QUAM MALE CUR-.
RERE. It is better to run back than to run bad-
ly; it is better to retrace one's steps than to pro-
ceed improperly. 4 Inst. 176.
MELIUS INQUIRENDUM. To be better inquired
into.
In old English law, the name of a writ com-
manding a further inquiry respecting a matter;
as, after an imperfect inquisition in proceedings
in outlawry, to have a new inquest as to the value
of lands.
MEMBER. One of the persons constituting a
family, Grant v. Louisiana Sawmill Co., 6 La.App.
673, 675; a partnership, association, corporation,
guild, etc. In re Sixth Ward Building & Loan Ass'n
of Newark, 134 N.J.Eq. 98, 34 A.2d 292, 294.
One of the persons constituting a court, a legis-
lative assembly, etc. In re Heafy, 247 App.Div. 277,
285 N.Y.S. 188, 193.
A part or organ of the animal body; especially
a limb or other separate part. California Casual-
ty Indemnity Exchange v. Industrial Accident
Commission, Cal.App., 82 P.2d 1115, 1116.
MEMBER OF CONGRESS. A member of the
senate or house of representatives of the United
States. In popular usage, particularly the latter.
MEMBER OF PARLIAMENT. One having the
right to sit in either house of the British parlia-
ment.
MEMBERS. In English law, places where a cus-
tom-house has been kept Of old time, with officers
or deputies in attendance; and they are lawful
places of exportation or importation. 1 Chit. Corn.
Law, 726.
MEMBERSHIP CORPORATION. One organized
for purposes other than that of pecuniary gain.
In re William McKinley Lodge No. 840, F. & A. M.,
D.C.N.Y., 4 F.Supp. 280, 282.
MEMBRANA. Lat.
In Civil law, parchment. Dig. 32, 52.
In old English law, a skin of parchment. The
ancient rolls usually consist of several of these
skins, and the word "membrana" is used, in cita-
tions to them, in the same way as "page" or "fo-
lio," to distinguish the particular skin referred to.
MEMBRUM. A slip or small piece of land.
MEMOIRE. In French law, a document in the
form of a petition, by which appeals to the court
of cassation are initiated:
MEMORANDUM. Lat. To be remembered; be It
remembered. A formal word with which the body
of a record in the court of king's bench anciently
commenced. Townsh. PL 486; 2 Tidd, Pr. 719.
Also an informal note or instrument embody-
ing something that the parties desire to fix in
memory by the aid of written evidence, or that is
to serve as the basis of a future formal contract
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MEMORANDUM
or deed. Plott v. Kittelson, 58 N.D. 881, 228 N.W.
217, 221.
This word is used in the statute of frauds as
the designation of the written agreement, or note
or evidence thereof, which must exist in order to
bind the parties in the cases provided. The mem-
orandum must be such as to disclose the parties,
the nature and substance of the contract, the con-
sideration and promise, and be signed by the party
to be bound or his authorized agent. See 2 Kent,
Comm. 510; Des Brisay v. Foss, 264 Mass. 102, 162
N.E. 4, 6.
The whole clause is now, in practice, termed, from this
initial word, the "memorandum," and its use is supposed
to have originated from the circumstance that proceedings
"by bill" (in which alone it has been employed) were for-
merly considered as the by-business of the court. Gilb.
Com.P1. 47, 48.
MEMORANDUM ARTICLES. In the law of mar-
ine insurance, this phrase designates the articles
of merchandise which are usually mentioned in
the memorandum clause, (q. v.,) and for which
the underwriter's liability is thereby limited. See
Waln v. Thompson, 9 Serg. & R., Pa., 120, 11 Am.
Dec. 675.
MEMORANDUM CHECK. See Check.
MEMORANDUM CLAUSE. In a policy of marine
insurance the memorandum clause is a clause in-
serted to prevent the underwriters from being
liable for injury to goods of a peculiarly perisha-
ble nature, and for minor damages. It begins as
follows: "N. B. Corn, fish, salt, fruit, flour, and
seed are warranted free from average, unless
general, or the ship be stranded,"—meaning that
the underwriters are not to be liable for damage
to these articles caused by seawater or the like.
Maude & P. Shipp. 371; Sweet.
MEMORANDUM IN ERROR. A document alleg-
ing error in fact, accompanied by an affidavit of
such matter of fact.
MEMORANDUM OF ALTERATION. Formerly,
in England, where a patent was granted for two
inventions, one of which was not new or not use-
ful, the whole patent was bad, and the same rule
applied when a material part of a patent for a
single invention had either of those defects. To
remedy this the statute 5 & 6 Wm. IV. c. 83, em-
powers a patentee (with the fiat of the attorney
general) to enter a disclaimer (q. v.) or a mem-
orandum of an alteration in the title or specifica-
tion of the patent, not being of such a nature as
to extend the exclusive right granted by the pat-
ent, and thereupon the memorandum is deemed to
be part of the letters patent or the specification.
Sweet.
MEMORANDUM OF ASSOCIATION. A docu-
ment to be subscribed by seven or more persons
associated for a lawful purpose, by subscribing
which, and otherwise complying with the requisi-
tions of the companies' acts in respect of registra-
tion, they may form themselves into an incor-
porated company, with or without limited liability.
3 Steph.Comm. 20.
MEMORANDUM SALE. See Sale.
MEMORIAL. A document presented to a legisla-
tive body, or to the executive, by one or more in-
dividuals, containing a petition or a representation
of facts.
In English law, that which contains the parti-
culars of a deed, etc., and is the instrument regis-
tered, as in the case of an annuity which must be
registered. Wharton.
In practice, a short note, abstract, memoran-
dum, or rough draft of the orders of the court,
from which the records thereof may at any time
be fully made up. State v. Shaw, 73 Vt. 149, 50 A.
863.
IMEMORITER. Lat. From memory; by or from
recollection. Thus, memoriter proof of a written
instrument is such as is furnished by the recol-
lection of a witness who had seen and known it.
MEMORIZATION. Committing anything to mem-
ory. Used to describe the act of one who listens
to a public representation of a play or drama, and
then, from his recollection of its scenes, incidents,
or language, reproduces it, substantially or in part,
in derogation of the rights of the author. 5 Term
R. 245; 14 A.L.R., N.S. 207.
MEMORY. The word as used in Blackstone and
other ancient authorities, appeared to be synony-
mous with "mind", whereas the word "memory"
in modern times is used in a more restricted sense
of recollection of past events rather than the
general state of one's mental power. United
States v. Boylen, D.C.Or., 41 F.Supp. 724, 725.
Mental capacity; the mental power to review
and recognize the successive states of conscious-
ness in their consecutive order.
This word, as used in jurisprudence to denote one of the
psychological elements necessary in the making of a valid
will or contract or the commission of a crime, implies the
mental power to conduct a consecutive train of thought, or
an orderly planning of affairs, by recalling correctly the
past states of the mind and past events, and arranging
them in their due order of sequence and in their logical
relations with the events and mental states of the present.
The phrase "sound and disposing mind and memory"
means not merely distinct recollection of the items of one's
property and the persons among whom it may be given,
but entire power of mind to dispose of property by will.
Abbott.
The reputation and name, good or bad, which a
man leaves at his death.
Legal memory. An ancient usage, custom, sup-
posed grant (as a foundation for prescription) and
the like, are said to be immemorial when they
are really or fictitiously of such an ancient date
that "the memory of man runneth not to the con-
trary," or, in other words, "beyond legal memory."
And legal memory or "time out of mind," accord-
ing to the rule of the common law, commenced
from the reign of Richard I., A. D. 1189. But
under the statute of limitation of 32 Hen. VIII.
this was reduced to 60 years, and again by that
of 2 & 3 Wm. IV. c. 71, to 20 years. In the Ameri-
can states, by statute, the time of legal memory
is generally fixed at a period corresponding to that
prescribed for actions for the recovery of real
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MENTAL
•property, usually about 20 years. See 2 Bl.Comm.
31; Miller v. Garlock, 8 Barb., N.Y. 153.
MEN OF STRAW. Men who used in former days
to ply about courts of law, so called from their
manner of making known their occupation, (i. e.,
by a straw in one of their shoes,) recognized by
the name of "straw-shoes." An advocate or lawyer
who wanted a convenient witness knew by these
signs where to meet with one, and the colloquy
between the parties was brief. "Don't you remem-
ber?" said the advocate; to which the ready an-
swer was, "To be sure I do." "Then come into
court and swear it?' And straw-shoes went into
court and swore. Athens abounded in straw-shoes.
Quart. Rev. vol. 33, p. 344.
MENACE. A threat; the declaration or show of
a disposition or determination to inflict an evil or
injury upon another. Cumming v. State, 99 Ga.
662, 27 S.E. 177; Morrill v. Nightingale, 93 Cal.
452, 28 Pac. 1068, 27 Am.St.Rep. 207.
MENETUM. In old Scotch law, a stockhorn; a
horn made of wood, "with circles and girds of the
same." Skene.
MENIAL. A servant of the lowest order; more
strictly, a domestic servant living under his mas-
ter's roof. Boniface v. Scott, 3 Serg. & R., Pa. 354.
MENS. Lat. Mind; intention; meaning; under-
standing; will.
MENS LEGIS. The mind of the law; that is, the
purpose, spirit, or intention of a law or the law
generally.
MENS LEGISLATORIS. The intention of the
law-maker.
MENS REA. A guilty mind; a guilty or wrong-
ful purpose; a criminal intent.
Guilty knowledge and wilfulness. United States
v. Greenbaum, C.C.A.N.J., 138 F.2d 437, 438.
MENS TESTATORIS IN TESTAMENTIS SPEC-
TANDA EST. Jenk. Cent. 277. The intention of
the testator is to be regarded in wills.
MENSA. Lat. Patrimony or goods and neces-
sary things for livelihood. Jacob. A table; the
table of a money-changer. Dig. 2, 14, 47.
MENSA ET THORO. From bed and board. See
Divorce.
MENSALIA. Parsonages or spiritual livings unit-
ed to the tables of religious houses, and called
"mensal benefices" amongst the canonists. Cowell.
MENSIS. Lat. In the civil and old English law,
a month. Mensis vetitus, the prohibited month;
fence-month (q. v.).
MENSOR. In civil law, a measurer of land; a
surveyor. Dig. 11, 6; Id. 50, 6, 6; Cod. 12, 28.
MENSULARIUS. In civil law, a money-changer
or dealer in money. Dig. 2, 14, 47, 1.
MENSURA. In old English law, a measure.
Black's Law Dictionary Revised 4th Ed.-72
MENSURA DOMINI REGIS. "The measure of
our lord the king," being the weights and meas-
ures established under King Richard I. in his
parliament at Westminster, 1197. 1 Bl.Comm.
275; Mozley & Whiteley.
MENTAL. Relating to or existing in the mind;
intellectual, emotional, or psychic, as distinguished
from bodily or physical.
MENTAL ALIENATION. A phrase sometimes
used to describe insanity (q. v.).
MENTAL ANGUISH. When connected with a
physical injury, this term includes both the re-
sultant mental sensation of pain and also the ac-
companying feelings of distress, fright, and anx-
iety. Railway Co. v. Miller, 25 Tex.Civ.App. 460,
61 S.W. 978. In other connections, and as a ground
for damages or an element of damages, it in-
cludes the mental suffering resulting from the
excitation of the more poignant and painful emo-
tions, such as grief, severe disappointment, in-
dignation, wounded pride, shame, public humilia-
tion, despair, etc. Western Union Telegraph Co.
v. Taylor, 94 Fla. 841, 114 So. 529, 532; Western
Union Telegraph Co. v. Chamberlain, Tex.Civ.App.,
169 S.W. 370, 371.
MENTAL CAPACITY OR COMPETENCE. Con-
templates the ability to understand the nature and
effect of the act in .which a person is engaged and
the business he is transacting. Jones v. Traders
& General Ins. Co., Tex.Civ.App., 144 S.W.2d 689,
694. Such a measure of intelligence, understand-
ing, memory, and judgment (relative to the par-
ticular transaction) as will enable the person to
understand the nature of his act. Davren v.
White, 42 N.J.Eq. 569, 7 A. 682; Conley v. Nailor,
118 U.S. 127, 6 S.Ct. 1001, 30 L.Ed. 112.
MENTAL CRUELTY. A course of conduct on the
part of one spouse toward the other spouse which
can endanger the mental and physical health and
efficiency of the other spouse to such an extent as
to render continuance of the marital relation in-
tolerable. Burns v. Burns, 153 Fla. 73, 13 So.2d
599, 602.
MENTAL DEFECT. As applied to the qualifica-
tion of a juror, this term must be understood to
embrace either such gross ignorance or imbecility
as practically disqualifies any person from per-
forming the duties of a juror. Caldwell v. State,
41 Tex. 94.
MENTAL INCAPACITY; MENTAL INCOMPE-
TENCY. Established when there is found to exist
an essential privation of reasoning faculties, or
when a person is incapable of understanding and
acting with discretion in the ordinary affairs of
life. In re Blochowitz' Guardianship, 135 Neb.
163, 280 N.W. 438, 441.
MENTAL RESERVATION. A silent exception to
the general words of a promise or agreement not
expressed, on account of a general understanding
on the subject. But the word has been applied
to an exception existing in the mind of the one
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MENTE
party only, and has been degraded to signify a
dishonest excuse for evading or infringing a prom-
ise. Wharton.
MENTE CAPTUS. Persons who are habitually
insane. Clanton v. Shattuck, 211 La. 750, 30 So.2d
823, 824.
MENTIRI. Lat. To lie; to assert a falsehood.
Calvin; 3 Bulst. 260.
MENTITION. The act of lying; a falsehood.
MENU, LAWS OF. A collection or institute of
the earliest laws of ancient India. The work is
of very remote antiquity.
MER, or MERE. A fenny place. Cowell.
MERA NOCTIS. Midnight. Cowell.
MERANNUM. In old records, timbers; wood for
building.
MERCABLE. Merchantable; to be sold or bought.
MERCANTANT. A foreign trader.
MERCANTILE. Of, pertaining to, or characteris-
tic of, merchants, or the business of merchants;
having to do with trade or commerce or the busi-
ness of buying and selling merchandise; trading;
commercial; conducted or acting on business prin-
ciples. In re Wanamaker's Estate, 312 Pa. 362,
167 A. 592, 594.
MERCANTILE AGENCIES. Establishments which
make a business of collecting information relating
to the credit, character, responsibility and reputa-
tion of merchants, for the purpose of furnishing
the information to subscribers. Brookfield v. Kit-
chen, 163 Mo. 546, 63 S.W. 825; State v. Morgan,
2 S.D. 32, 48 N.W. 314.
MERCANTILE LAW. An expression substantial-
ly equivalent to the law-merchant or commercial
law; It designates the system of rules, customs,
and usages generally recognized and adopted by
merchants and traders, and which, either in its
simplicity or as modified by common law or stat-
utes, constitutes the law for the regulation of their
transactions and the solution of their controver-
sies.
MERCANTILE LAW AMENDMENT ACTS. The
statutes 19 & 20 Vict. cc. 60, 97, passed mainly for
the purpose of assimilating the mercantile law of
England, Scotland, and Ireland.
MERCANTILE PAPER. Commercial paper; such
negotiable paper (bills, notes, checks, etc.) as is
made or transferred by and between merchants
or traders, and is governed by the usages of the
business world and the law-merchant.
MERCANTILE PARTNERSHIP. One which ha-
bitually buys and sells; one which buys for the
purpose of afterwards selling. Com. v. Natural
Gas Co., 32 Pittsb.Leg.J., 0.S. 310.
MERCAT. A market. An old form of the latter
word common in Scotch law, formed from the
Latin "mercatum."
MERCATIVE. Belonging to trade.
MERCATUM. Lat. A market. A contract of
sale. Supplies for an army (commeatus).
MERCATURE. The practice of buying and sell-
ing.
MERCEDARY. A hirer; one that hires.
MERCEN—LAGS. The law of the Mercians. One
of the three principal systems of laws which pre-
vailed in England about the beginning of the
eleventh century. It was observed in many of
the midland counties, and those bordering on the
principality of Wales. 1 Bl.Comm. 65.
"Upon the expulsion of these intruders [the Danish in-
vaders], the English returned to their ancient law, re-
taining a few customs of their late visitants, which were
termed Dane Lage, as the code compiled by Alfred was
called West-Saxon Lage, and the laws of the kingdom of
Mercia, which obtained in the countries next to Wales,
were termed the Mercen Lage." 4 Bl. Comm. 412 (quoted
from Browne's Abr., p. 735 [Gavit's Ed., p. 939]).
MERCENARIUS. A hireling or servant. Jacob.
MERCES. Lat. In the civil law, reward of labor
in money or other things. As distinguished from
"pensio," it means the rent of farms, (prcedia
rustici.) Calvin.
MERCHANDISE. All commodities which mer-
chants usually buy and sell, whether at wholesale
or retail; wares and commodities such as are or-
dinarily the objects of trade and commerce. But
the term is never understood as including real
estate, and is rarely applied to provisions such as
are purchased day by day, or to such other articles
as are required for immediate consumption. Pas-
saic Mfg. Co. v. Hoffman, 3 Daly, N.Y. 512; Hein
v. O'Connor, Tex.App., 15 S.W. 414; Elliott v.
Swartwout, 10 Pet. 137, 9 L.Ed. 373; Smith v.
Boyer, 119 S.C. 176, 112 S.E. 71, 74, 41 A.L.R. 1466.
Stock of Merchandise. See Stock.
MERCHANDISE BROKER. One who negotiates
the sale of merchandise without having it in his
possession or control, being simply an agent with
very limited powers. Hughes v. Young, 17 Tenn.
App. 24, 65 S.W.2d 858.
MERCHANDISE MARKS ACT, 1862. The statute
25 & 26 Vict. c. 88, designed to prevent the fraudu-
lent marking of merchandise and the fraudulent
sale of merchandise falsely marked.
MERCHANT. One who is engaged in the pur-
chase and sale of goods; a trafficer; a trader.
Fischbach Brewing Co. v. City of St. Louis, 231
Mo.App. 793, 95 S.W.2d 335, 340.
A man who traffics or carries on trade with
foreign countries, or who exports and imports
goods and sells them by wholesale. Webster.
Merchants of this description are commonly
known by the name of "shipping merchants."
Commission merchant. See Commission.
Law merchant. See Mercantile Law.
Statute merchant. See Statute.
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MERENNIUM
MERCHANT APPRAISER. See Appraiser.
MERCHANT SEAMAN. A sailor employed in a
private vessel, as distinguished from one employ-
ed in the navy or public ships. U. S. v. Sullivan,
C.C.Or., 43 F. 604; The Ben Flint, 3 F.Cas. 184.
MERCHANT SHIPPING ACTS. Certain English
statutes, beginning with the St. 16 & 17 Vict. c. 131,
whereby a general superintendence of merchant
shipping is vested in the board of trade.
MERCHANTABILITY. Means that the article
sold shall be of the general kind described and rea-
sonably fit for the general purpose for which it
shall have been sold, and where the article sold
is ordinarily used in but one way, its fitness for
use in that particular way is impliedly warranted
unless there is evidence to the contrary. D'Ono-
frio v. First Nat. Stores, 68 R.I. 144, 26 A.2d 758,
760.
MERCHANTABLE. Salable and fit for the mar-
ket; sound and undamaged; such as is generally
sold in the market; vendible in the market, Net-
tles v. Lichtman, 228 Ala. 52, 152 So. 450, 453, 91
A.L.R. 1455; possessing an ordinary or medium
quality of goodness, Martin's Fork Coal Co. v.
Harlan-Wallins Coal Corporation, D.C.Ky., 14 F.
Supp. 902, 907; of a quality such as will bring the
ordinary market price. Riggs v. Armstrong, 23 W.
Va. 773; Wallace v. L. D. Clark & Sons, 74 Okl.
208, 174 P. 557, 558, 21 A.L.R. 361. It may include
reasonable fitness for general purpose for which
article is manufactured and sold. Outhwaite v. A.
B. Knowlson Co., 259 Mich. 224, 242 N.W. 895, 896.
MERCHANTABLE TITLE. One that can be held
without reasonable apprehension of being assailed
and readily transferable in market. Crow Creek
Gravel & Sand Co. v. Dooley, 182 Ark. 1009, 33 S.
W.2d 369, 370.
MERCHANTMAN. A ship or vessel employed in
foreign or domestic commerce or in the merchant
service.
MERCHANTS' ACCOUNTS. Accounts between
merchant and merchant, which must be current,
mutual, and unsettled, consisting of debts and
credits for merchandise. Fox v. Fisk, 6 How.,
Miss. 328.
MERCHANTS, STATUTE OF. The English stat-
ute 13 Edw. L St. 3, repealed by 26 & 27 Vict. c.
125.
MERCHET. In feudal law, a fine or composition
paid by inferior tenants to the lord for liberty to
dispose of their daughters in marriage. Cowell.
The same as marcheta (q. v.).
MERCIAMENT. An amerciament, penalty, or
fine (q. v.).
MERCIAN LAW. One of the main bodies of cus-
toms (with the Dane law and the West Saxon
law and perhaps an admixture of Norman laws
and customs) which composed the law in the early
Norman days. 1 Holdsw. Hist. E. L. 3. See Mer-
cen-Lage.
MERCIMONIA. In old writs, wares. Mercimonia
et merchandizas, wares and merchandises. Reg.
Brev. Append. 10.
MERCIMONINATUS ANGLLE. In old records,
the impost of England upon merchandise. Cow-
ell.
MERCIS APPELLATIO AD RES MOBILES
TANTUM PERTINET. The term "merchandise"
belongs to movable things only. Dig. 50, 16, 66.
IVERCIS APPELLATIONE HOMINES NON
CONTINERI. Men are not included under the de-
nomination of "merchandise." Dig. 50, 16, 207.
MERCNA LAGU. See Lagu; Mercen-Lage.
MERCY. In practice. The arbitrament of the
king or judge in punishing offenses not directly
censured by law. Jacob. So, "to be in mercy"
signifies to be amerced or fined for bringing or
defending an unjust suit, or to be liable to punish-
ment in the discretion of the court.
In criminal law. The discretion of a judge,
within the limits prescribed by positive law, to
remit altogether the punishment to which a con-
victed person is liable, or to mitigate the severity
of his sentence; as when a jury recommends the
prisoner to the mercy of the court.
MERE. Sax. A marsh. Spelman.
MERE. L. Fr. Mother. iEle, mere, fille, grand-
mother, mother, daughter. Britt. c. 89. En ventre
sa mere, in its mother's womb.
MERE LICENSEE. One who enters upon the
land or property of another without objection, or
by the mere permission, sufferance, or acquies-
cence of the owner or occupier. Mann v. Des
Moines Ry. Co., 232 Iowa 1049, 7 N.W.2d 45, 50.
MERE MOTION. The free and voluntary act of a
party himself, done without the suggestion or in-
fluence of another person, is said to be done of
his mere motion, ex mero motu (q. v.). Brown.
The phrase is used of an interference of the
courts of law, who will, under some circumstances,
of their own motion, object to an irregularity in
the proceedings, though no objection has been
taken to the informality by the plaintiff or defend-
ant in the suit. 3 Chit. Gen. Pr. 430.
MERE RIGHT. The mere right of property in
land; the jus proprietatis, without either posses-
sion or even the right of possession. 2 BL Comm.
197. The abstract right of property.
MERE-STONE. In old English law, a stone for
bounding or dividing lands. Yearb. P. 18 Hen. VI.
5.
MERELY. Without including anything else;
purely; only; solely; absolute; wholly. In re
Plymouth Motor Corporation, Cust. & Pat. App.,
46 F.2d 211, 212.
MERENNIUM. In old records, timber. Cowell.
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MERETRICIOUS
MERETRICIOUS. Of the nature of unlawful sex-
ual connection. The term is descriptive of the re-
lation sustained by persons who contract a mar-
riage that is void by reason of legal incapacity.
Bl. Comm. 436.
MERGER. The fusion or absorption of one thing
or right into another; generally spoken of a case
where one of the subjects is of less dignity or im-
portance than the other. Here the less important
ceases to have an independent existence. Marfield
v. Cincinnati, D. & T. Traction Co., 111 Ohio St.
139, 144 N.E. 689, 696, 40 A.L.R. 357.
Conglomerate merger. Merger of corporations
which are neither competitors nor potential or ac-
tual customers or suppliers of each other. U. S.
v. General Dynamics Corp., D.C.N.Y., 258 F.Supp.
36, 56.
Contract law. Extinguishment of one contract
by absorption into another. Clark v. Compania
Granadera de Cananera, S.A., 385 P.2d 691, 695,
94 Ariz. 391; Whiddon v. General Mills, Inc., Tex.
Civ.App., 347 S.W.2d 7, 10.
Corporations. The union of two or more cor-
porations by the transfer of property of all to
one of them, which continues in existence, the
others being swallowed up or merged therein.
Metropolitan Edison Co. v. Commissioner of In-
ternal Revenue, C.C.A.3, 98 F.2d 807, 810, 811. It
differs from a consolidation wherein all the cor-
porations terminate their existence and become
parties to a new one. Murphy v. Niehus, 50 Ohio
App. 299, 198 N.E. 197.
Criminal Law. When a man commits a great
crime which includes a lesser, or commits a fel-
ony which includes a tort against a private person,
the latter is merged in the former. 1 East, P. C.
411.
Divorce law. Substitution of rights and duties
under judgment or decree for those under prop-
erty settlement agreement. Roesberry v. Roes-
berry, 401 P.2d 805, 807, 88 Idaho 514.
Horizontal merger. Merger of corporate com-
petitors. U. S. v. General Dynamics Corp., D.C.
N.Y., 258 F.Supp. 36, 56; U. S. v. Manufacturers
Hanover Trust Co., D.C.N.Y., 240 F.Supp. 867, 930.
Real-Property Law. It is a general principle of
law that where a greater estate and a less coin-
cide and meet in one and the same person, without
any intermediate estate, the less is immediately
annihilated, or, in the law phrase, is said to be
merged, that is, sunk or drowned, in the greater.
Thus, if there be tenant for years, and the rever-
sion in fee-simple descends to or is purchased by
him, the term of years is merged in the inheri-
tance, and shall never exist any more. 2 Bl.
Comm. 177; 1 Steph. Comm. 293; 4 Kent, Comm.
99. Duncan v. Smith, 31 N.J.L. 327.
Rights. This term, as applied to rights, is equiv-
alent to "confusio" in the Roman law, and in-
dicates that where the qualities of debtor and cred-
itor become united in the same individual, there
arises a confusion of rights which extinguishes
both qualities; whence, also, merger is often called
"extinguishment." Brown.
Rights of Action. In the law relating to rights
of action, when a person takes or acquires a rem-
edy or security of a higher nature, in legal estima-
tion, than the one which he already possesses for
the same right, then his remedies in respect of
the minor right or security merge in those attach-
ing to the higher one. Leake, Cont. 506; 10 C.B.
561. As where a claim is merged in the judgment
recovered upon it. Frost v. Thompson, 219 Mass.
360, 106 N.E. 1009, 1010.
Vertical merger. Union with corporate customer
or supplier. U. S. v. General Dynamics Corp.,
D.C.N.Y., 258 F.Supp. 36, 56.
MERIDIES. In old English law, noon. Fleta, lib.
5, c. 5, § 31.
MERINO. A fine long staple wool, which com-
mands the highest price. Federal Trade Commis-
sion v. Winsted Hosiery Co., 258 U.S. 483, 42 S.Ct.
384, 385, 66 L.Ed. 729.
MERIT SYSTEM. A system of appointing em-
ployees to office in the civil service, and of pro-
moting them for competency only; opposed, in
the United States, to the spoils system. Heck v.
Hall, 238 Ala. 274, 190 So. 280, 285.
MERITORIOUS. Possessing or characterized by
"merit" in the legal sense of the word. See Mer-
its.
MERITORIOUS CAUSE OF ACTION. This de-
scription is sometimes applied to a person with
whom the ground of action, or the consideration,
originated or from whom it moved. For example,
where a cause of action accrues to a woman while
sole, and is sued for, after her marriage, by her
husband and herself jointly, she is called the "mer-
itorious cause of action."
MERITORIOUS CONSIDERATION. One found-
ed upon some moral obligation; a valuable con-
sideration in the second degree.
MERITORIOUS DEFENSE. See Defense.
MERITS. The word "merit" as a legal term is to
be regarded as referring to the strict legal rights
of the parties. Mink v. Keim, 266 App.Div. 184,
41 N.Y.S.2d 769, 771.
MERO MOTU. See Ex Mero Motu; Mere Motion.
MERSCUM. A lake; also a marsh or fenland.
MERTLAGE. A church calendar or rubric. Cow-
ell.
MERTON, STATUTE OF. An old English statute,
relating to dower, legitimacy, wardships, proced-
ure, enclosure of common, and usury. It was
passed in 1235, (20 Hen. III.,) and was named from
Merton, in Surrey, where parliament sat that year.
See Barring. St. 41, 46.
MERUM. In old English law, mere; naked or ab-
stract. Merum jus, mere right. Bract. fol. 31.
MERX. Lat. Merchandise; movable articles that
are bought and sold; articles of trade.
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METABOLISM
MERX EST QUICQUID VENDI POTEST. Mer-
chandise is whatever can be sold. Corn. 355; 3
Wood. Lect. 263.
MESCREAUNTES, L. Fr. Apostates; unbeliev-
ers.
MESCROYANT. A term used in the ancient
books to designate an infidel or unbeliever.
MESE. A house and its appurtenance. Cowell.
MESNALTY, or MESNALITY. A manor held un-
der a superior lord. The estate of a mesne.
MESNE. Intermediate; intervening; the middle
between two extremes, especially of rank or time.
An intermediate lord; a lord who stood between
a tenant and the chief lord; a lord who was also
a tenant. "Lord, mesne, and tenant; the tenant
holdeth by four pence, and the mesne by twelve
pence." Co. Litt 23a.
As to mesne "Conveyance," "Process," and
"Profits," see those titles.
MESNE ASSIGNMENT. If A. grant a lease of
land to B., and B. assign his interest to C., and C.
in his turn assign his interest therein to D., in
this case the assignments so made by B. and C.
would be termed "mesne assignments;" that is,
they would be assignments intervening between
A.'s original grant and the vesting of D.'s interest
in the land under the last assignment. Brown.
MESNE ENCUMBRANCE. An intermediate
charge, burden, or liability; an incumbrance which
has been created or has attached to property be-
tween two given periods.
MESNE LORD. In old English law, a middle or
intermediate lord; a lord who held of a superior
lord. 2 Bl. Comm. 59. More commonly termed a
"mesne" (q. v.).
MESNE, WRIT OF. An ancient and abolished
writ, which lay when the lord paramount dis-
trained on the tenant paravail. The latter had a
writ of mesne against the mesne lord.
MESS BRIEF. In Danish sea law, one of a ship's
papers; a certificate of admeasurement granted at
the home port of a vessel by the government or
by some other competent authority. Jac. Sea
Laws, 51.
MESSAGE. Any notice, word, or communication,
written or oral, sent from one person to another.
Webster, Dict.
President's message. An annual communication
from the president of the United States to con•
gress, made at or near the beginning of each ses-
sion, embodying his views on the state and exi-
gencies of national affairs, suggestions and recom-
mendations for legislation, and other matters.
Const. U. S. art. 2, § 3.
Repeated message. Within the meaning of re-
stricted liability clauses printed on the back of
blank telegraph forms, one telegraphed back to
the sending office for comparison; the object be-
ing to guard against mistakes in transmission.
Dettis v. Western Union Telegraph Co., 141 Minn.
361, 170 N.W. 334, 338.
MESSAGE FROM THE CROWN. In English law,
the method of communicating between the sover-
eign and the house of parliament. A written mes-
sage under the royal sign-manual is brought by a
member of the house, being a minister of the
crown or one of the royal household. Verbal mes-
sages are also sometimes delivered. May, Part
Pr. c. 17.
MESSARIUS. In old English law, a chief servant
in husbandry; a bailiff.
MESSE THANE. One who said mass; a priest.
Cowell.
MESSENGER. One who bears messages or er-
rands; a ministerial officer employed by executive
officers, legislative bodies, and courts of justice,
whose service consists principally in carrying verb-
al or written communications or executing other
orders. In Scotland there are officers attached to
the courts, called "messengers at arms."
An officer attached to a bankruptcy court, whose
duty consists, among other things, in seizing and
taking possession of the bankrupt's estate during
the proceedings in bankruptcy.
The messenger of the English court of chancery
has the duty of attending on the great seal, either
in person or by deputy, and must be ready to exe-
cute all such orders as he shall receive from the
lord chancellor, lord keeper, or lords commission-
ers. Brown.
MESSIS SEMENTEM SEQUITUR. The crop be-
longs to [follows] the sower. A maxim in Scotch
law. Where a person is in possession of land
which he has reason to believe is his own, and
sows that land, he will have a right to the crops,
although before it is cut down it should be discov-
ered that another has a preferable title to the
land. Bell.
MESSUAGE. This term is now synonymous with
"dwelling-house," but had once a more extended
signification. Marmet Co. v. Archibald, 37 W.Va.
778, 17 S.E. 300; Grimes v. Wilson, 4 Blackf. Ind.
333. Dwelling-house with the adjacent buildings
and curtilage. Hall v. Philadelphia Co., 72 W.Va.
573, 78 S.E. 755, 757.
Although the word "messuage" may, there is no neces-
sity that it must, import more than the word "dwelling-
house," with which word it is frequently put in apposition
and used synonymously. 2 Bing.N.C. 617.
In Scotland, the principal dwelling-house within
a barony. Bell.
MESTIZO. A mongrel or person of mixed blood;
sometimes used as equivalent to "octoroon," that
is, the child of a white person and a quadroon,
sometimes as denoting a person one of whose par-
ents was a Spaniard and the other an American
Indian.
META. Lat. A goal, bound, or turning-point. In
old English law, the term was used to denote a
bound or boundary line of land; a landmark; a
material object, as a tree or a pillar, marking the
position or beginning of a boundary line.
METABOLISM. The sum total of all processes of
the human body by which food is transformed into
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METACHRONISM
chemicals which are absorbed into blood stream
and lymphatic system for purpose of so nourish-
ing body that it can continue to function. United
States v. 62 Packages, More or Less, of Marmola
Prescription Tablets, C.C.A.Wis., 142 F.2d 107, 109.
METACHRONISM. An error in computation of
time.
METALLIC. "Consisting of or having the char-
acters of a metal. * * * Having one or more
properties resembling those of metals." Trussell
Mfg. Co. v. S. E. & M. Vernon, Inc., D.C.N.Y., 11
F.2d 289, 290, 291.
METALLUM. Lat. In Roman law, metal; a
mine. Labor in mines, as a punishment for crime.
Dig. 40, 5, 24, 5; Calvin.
METAPHYSICS. The science of being; the
science which deals with ultimate reality. Vine-
land Trust Co. v. Westendorf, 86 N.J.Eq. 343, 98
A. 314.
METATUS. In old European law, a dwelling; a
seat; a station; quarters; the place where one
lives or stays. Spelman.
METAYER SYSTEM. A system of agricultural
holdings, under which the land is divided, in small
farms, among single families, the landlord gen-
erally supplying the stock which the agricultural
system of the country is considered to require, and
receiving, in lieu of rent and profit, a fixed pro-
portion of the produce. This proportion, which is
generally paid in kind, is usually one-half. 1 Mill,
Pol. Econ. 296, 363; and 2 Smith, Wealth Nat. 3, c.
ii. The system prevails in some parts of France
and Italy.
METECORN. A measure or portion of corn, giv-
en by a lord to customary tenants as a reward
and encouragement for labor. Cowell.
METEGAVEL. A tribute or rent paid in victuals.
Cowell.
METER. An instrument of measurement; as a
coal-meter, a gas-meter, a land-meter.
Also see Metre.
METES AND BOUNDS. The boundary lines of
land, with their terminal points and angles. Lef-
ler v. City of Dallas, Tex.Civ.App., 177 S.W.2d 231,
234.
METEWAND, or METEYARD. A staff of a cer-
tain length wherewith measures are taken.
METHEL. Sax. Speech; discourse. Mathlian,
to speak; to harangue. Anc. Inst. Eng.
METHOD. The mode of operating, or the means
of attaining an object. In patent law, "Engine"
and "method" mean the same thing, and may be
the subject of a patent. Method, properly speak-
ing, is only placing several things, or performing
several operations, in the most convenient order,
but it may signify a contrivance or device. Fes-
sen. Pat. 127; Hornblower v. Boulton, 8 Term R.
106.
METHOMANIA. See Insanity.
METRE. The unit of measure in the "metric
system" of weights and measures. It is a meas-
ure of length, being the ten-millionth part of the
distance from the equator to the north pole, and
equivalent to 39.37 inches. From this unit all the
other denominations of measure, as well as of
weight, are derived. The metric system was first
adopted in France in 1795.
METRIC SYSTEM. A system of measures for
length, surface, weight, and capacity, founded on
the metre as a unit. It originated in France, has
been established by law there and in some other
countries, and is recommended for general use by
other governments.
METROPOLIS. A mother city; one from which a
colony was sent out. The capital of a province.
Calvin.
METROPOLITAN. In English law, one of the
titles of an archbishop. Derived from the circum-
stance that archbishops were consecrated at first
in the metropolis of a province. 4 Inst. 94.
In England, the word is frequently used to desig-
nate a statute, institution, governmental agency,
etc., relating exclusively or especially to the city
of London; e. g., the metropolitan board of works,
metropolitan buildings act, etc.
METROPOLITAN BOARD OF WORKS. A board
constituted in 1855 by St. 18 & 19 Vict. c. 120, for
the better sewering, draining, paving, cleansing,
lighting, and improving the metropolis (London.)
The board is elected by vestries and district
boards, who in their turn are elected by the rate-
payers. Wharton.
METROPOLITAN POLICE DISTRICT. A region
composed of New York city and some adjacent
territory, which was, for police purposes, organ-
ized as one district, and provided with a police
force common to the whole.
METTESHEP, or METTENSCHEP. In old rec-
ords, an acknowledgment paid in a certain measure
of corn; or a fine or penalty imposed on tenants
for default in not doing their customary service in
cutting the lord's corn.
METUS. Lat. Fear; terror. In a technical sense,
a reasonable and well-grounded apprehension of
some great evil, such as death or mayhem, and
not arising out of mere timidity, but such as might
fall upon a man of courage. Fear must be of
this description in order to amount to duress avoid-
ing a contract. See Bract. lib. 2, c. 5; 1 Bl. Comm.
131; Calvin.
MEUBLES. In French law, the movables of Eng-
lish law. Things are meubles from either of two
causes: (1) From their own nature, e. g., tables,
chairs; or (2) from the determination of the law,
e. g., obligations.
MEUBLES MEUBLANS. In French law, the uten-
sils and articles of ornament usual in a dwelling-
house. Brown.
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MILEAGE
MEUM EST PROMITTERE, NON DIMITTERE.
It is mine to promise, not to discharge. 2 Rolle,
39.
MICHAELMAS. The feast of the Archangel Mich-
ael, celebrated in England on the 29th of Septem-
ber, and one of the usual quarter days.
MICHAELMAS HEAD COURT. A meeting of the
heritors of Scotland, at which the roll of free-
holders used to be revised. See Bell.
MICHAELMAS TERM. One of the four terms of
the English courts of common law, beginning on
the 2d day of November and ending on the 25th.
3 Steph. Comm. 562.
MICHE, or MICH. 0. Eng. To practice crimes
requiring concealment or secrecy; to pilfer arti-
cles secretly. Micher, one who practices secret
crime. Webster.
MICHEL-GEMOT. One of the names of the gen-
eral council immemorially held in England. The
Witenagemote.
One of the great councils of king and noblemen
in Saxon times. Jacob.
MICHEL-SYNOTH. Great council. One of the
names of the general council of the kingdom in the
times of the Saxons. 1 Bl. Comm. 147.
MICHERY. In old English law, theft; cheating.
MID-CHANNEL. In international law and by the
usage of European nations, the terms "middle of
the stream" and "mid-channel" of a navigable river
are synonymous and interchangeably used. Hill
City Compress Co. v. West Kentucky Coal Co., 155
Miss. 55, 122 So. 747, 748.
MIDDLE LINE OF MAIN CHANNEL. The equi-
distant point in the main channel of the river be-
tween the well-defined banks on either shore.
Hearne v. State, 121 Ark. 460, 181 S.W. 291, 295.
MIDDLE OF Tilt. RIVER. The phrases "middle
of the river" and "middle of the main channel"
are equivalent expressions, and both mean the
main line of the channel or the middle thread of
the current. Western Union Tel. Co. of Illinois v.
Louisville & N. R. Co., 270 Ill. 399, 110 N.E. 583,
591, Ann.Cas.1917B, 670. See Thalweg.
Terms "middle of the Mississippi river," "middle of the
main channel of the Mississippi river," and "center of the
main channel of the Mississippi river," are synonymous
and mean middle of broad and distinctly defined bed of
main river, as distinguished from changing line of naviga-
tion, in determining location of boundaries between states.
Hill City Compress Co. v. West Kentucky Coal Co., 155
Miss. 55, 122 So. 747, 748.
MIDDLE TERM. A phrase used in logic to de-
note the term which occurs in both of the prem-
ises in the syllogism, being the means of bringing
together the two terms in the conclusion.
MIDDLE THREAD. The middle thread of a
stream is an imaginary line drawn lengthwise
through the middle of its current.
MIDDLEMAN. One who merely brings parties
together in order to enable them to make their
own contracts. Crane v. Colonial Holding Corpo-
ration, Tex.Civ.App., 57 S.W.2d 316, 320.
' An agent between two parties, an intermediary who per-
forms the office of a broker or factor between seller and
buyer, producer and consumer, land-owner and tenant, etc.
Southack v. Lane, 65 N.Y.Supp. 629, 32 Misc.Rep. 141.
Brokers are "middlemen" only where, without having
undertaken to act as agents for either party, or to exercise
their skill, knowledge, or influence, they merely bring the
parties together to deal for themselves, and stand indiffer-
ent between them. Geddes v. Rhee, 126 Minn. 517, 148
N.W. 549, 550.
One who has been employed as an agent by a principal,
and who has employed a subagent under him by authority
of the principal, either express or implied.
A person who is employed both by the seller and pur-
chaser of goods, or by the purchaser alone, to receive them
into his possession, for the purpose of doing something in
or about them.
In Ireland, a person who takes land in large
tracts from the proprietors, and then rents it out
to the peasantry in small portions at a greatly en-
hanced price. Wharton.
MIDDLESEX, BILL OF. See Bill.
MIDSHIPMAN. In ships of war, a kind of naval
cadet, whose business is to second or transmit the
orders of the superior officers and assist in the
necessary business of the vessel, but understood
to be in training for a commission. A passed mid-
shipman is one who has passed an examination
and is a candidate for promotion to the rank of
lieutenant. See U. S. v. Cook, 128 U.S. 254, 9 S.Ct.
108, 32 L.Ed. 464.
MIDSUMMER-DAY. The summer solstice, which
is about June Twenty-Second, and the feast of St.
John the Baptist, a festival first mentioned by
Maximus Tauricensis, A. D. 400. It is generally
a quarter-day for the payment of rents, etc. Whar-
ton.
MIDWAY. See Thalweg.
MIDWIFE. In medical jurisprudence, a woman
who assists at childbirth; an accoucheuse.
MIESES. In Spanish law, crops of grain. White,
New Recop. b. 7, c. 5, § 2.
MIGHT, v. The preterit of the word "may".
Equivalent to "had power" or "was possible" or
"have the physical or moral opportunity to be
contingently possible." In re Weidberg's Estate,
172 Misc. 524, 15 N.Y.S.2d 252, 257.
MIGRANS JURA  AMITTAT AC PRIVILEGIA
ET IMMUNITATES DOMICILII PRIORIS. One
who emigrates will lose the rights, privileges, and
immunities of his former domicile. Voet, Corn.
ad. Pand. torn. i. 347; 1 Kent, Comm. 76.
MILE. A measure of length or distance, contain-
ing 8 furlongs, or 1,760 yards, or 5,280 feet. This
is the measure of an ordinary or statute mile; but
the nautical or geographical mile contains 6,080
feet.
MILEAGE. Allowance for traveling expenses .at
certain rate per mile, Reed v. Gallet, 50 Idaho 638,
299 P. 337, 338. Especially to members of legisla-
tive bodies, witnesses, sheriffs, and bailiffs. Rich-
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MILEAGE TAX
ardson v. State, 66 Ohio St. 108, 63 N.E. 593; State
v. Clausen, 142 Wash. 450, 253 P. 805, 807.
MILEAGE TAX. License tax imposed upon intra-
state business of transportation for compensation
on public roads of state. State ex rel. Five Transp.
Co. v. Lee, 132 Fla. 183, 181 So. 179, 181.
MILES. Lat. In civil law, a soldier.
In old English law, a knight, because military
service was part of the feudal tenure. Also a ten-
ant by military service, not a knight. 1 Bl. Comm.
404; Seld. Tit. Hon. 334.
MILESTONES. Stones set up to mark the miles
on a road or railway.
MILITARE. To be knighted.
MILITARY. Pertaining to war or to the army;
concerned with war. Also the whole body of sol-
diers; an army.
MILITARY BASE. See Base.
MILITARY BOUNTY LAND. See Bounty.
MILITARY CAUSES. In English law, causes of
action or injuries cognizable in the court military,
or court of chivalry. 3 Bl. Comm. 103.
MILITARY COMMISSIONS. Courts whose pro-
cedure and composition are modeled upon courts-
martial, being the tribunals by which alleged vio-
lations of martial law are tried and determined.
The membership of such commissions is common-
ly made up of civilians and army officers. They
are probably not known outside of the United
States, and were first used by General Scott during
the Mexican war. 15 Amer. & Eng. Enc. Law, 473.
MILITARY COURTS. In England the court of
chivalry and courts-martial, in America courts-
martial and courts of inquiry, are called by this
general name.
MILITARY FEUDS. See Feud.
MILITARY FORCES. Under Espionage Act June
15, 1917, included persons subject to be called into
active service under Selective Service Act May 18,
1917. Anderson v. U. S., C.C.A.S.D., 264 F. 75, 76;
White v. United States, C.C.A.Ohio, 263 F. 17, 19,
but see contra, United States v. Hall, D.C.Mont.,
248 F. 150, 152.
MILITARY GOVERNMENT. Exercised by mili-
tary commander under direction of President in
time of foreign war without the boundaries of the
United States, or in time of rebellion and civil
war within states or districts occupied by rebels.
Hammond v. Squier, D.C.Wash., 51 F.Supp. 227,
230.
MILITARY JURISDICTION. There are under the
Constitution, three kinds of military jurisdiction:
one to be exercised both in peace and war; another
to be exercised in time of foreign war without the
boundaries of the United States or in time of re-
bellion and civil war within states or districts oc-
cupied by rebels treated as belligerents; and a
third to be exercised in time of invasion or insur.
rection within the limits of the United States or
during rebellion within the limits of states main-
taining adhesion to the National Government,
when the public danger requires its exercise. The
first of these may be called jurisdiction under
"military law" and is found in acts of Congress
prescribing rules and articles of war, or otherwise
providing for the government of the national forc-
es; the second may be distinguished as "military
government" superseding, as far as may be deem-
ed expedient the local law, and exercised by the
military commander under the direction of the
President, with the express or implied sanction of
Congress; while the third may be denominated
"martial law", and is called into action by Con-
gress, or temporarily when the action of Congress
cannot be invited, and in the face of justifying or
excusing peril, by the President in times of insur-
rection or invasion, or of civil or foreign war, with-
in districts or localities where ordinary law nc
longer adequately secures public safety and pri-
vate rights. United States v. Minoru Yasui, D.C.
Or., 48 F.Supp. 40, 46, 47.
MILITARY LAW. A system of regulations for
the government of an army. 1 Kent, Comm. 341,
note. That branch of the laws which respects
military discipline and the government of persons
employed in the military service, De Hart, Mil.
Law, 16. Johnson v. Jones, 44 Ill. 153, 92 Am.Dec.
159. Military is distinct from martial law, in that
it applies only to persons in the military or naval
service of the government; whereas, martial law,
when once established, applies alike to citizens
and soldiers and supersedes civil law. U. S. ex
rel. Wessels v. McDonald, D.C.N.Y., 265 F. 754,
761; Bishop v. Vandercook, 228 Mich. 299, 200 N.
W. 278, 280.
MILITARY OFFENSES. Those offenses which
are cognizable by the courts military, as insub-
ordination, sleeping on guard, desertion, etc.
MILITARY OFFICE. See Office.
MILITARY OFFICER. See Officer.
MILITARY SERVICE. Every branch of service
in either the armies or navies of the United States.
Maclean v. Brodigan, 41 Nev. 468, 172 P. 375,
377; In re Opinion to the Governor, 41 R.I. 118,
102 A. 913.
"Active military service" within exemption provision of
life policy is service in garrison or at sea in time of peace
or before an enemy in time of war. Redd v. American
Cent. Life Ins. Co., 200 Mo.App. 383, 207 S.W. 74, 75; Rex
Health & Accident Ins. Co. v. Pettiford, 74 Ind.App. 507,
129 N.E. 248.
MILITARY STATE. The soldiery of the kingdom
of Great Britain.
MILITARY TENURES. The various tel.,. es by
knight-service, grand-serjeanty, cornage, etc., are
frequently called "military tenures," from the na-
ture of the services which they involved. 1 Steph.
Comm. 204.
MILITARY TESTAMENT. See Testament
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MINATUR
MILITES. Lat. Knights; and, in Scotch law,
freeholders.
MILITIA. The body of citizens in a state, en-
rolled for discipline as a military force, but not en-
gaged in actual service except in emergencies, as
distinguished from regular troops or a standing
army. Ex parte McCants, 39 Ala. 112; Worth v.
Craven County, 118 N.C. 112, 24 S.E. 778; Story
v. Perkins, D.C.Ga., 243 F. 997, 999.
MILITIAMEN. Comprehends every temporary
citizen-soldier who in time of war or emergency en-
ters active military service of the country. Critch-
low v. Monson, 102 Utah 378, 131 P.2d 794, 798.
MILK. In England milk means, commercially
speaking, skimmed milk.
MILL. A complicated engine or machine for grind-
ing and reducing to fine particles grain, fruit, or
other substance, or for performing other opera-
tions by means of wheels and a circular motion;
also the building containing such machinery.
State v. Livermore, 44 N.H. 387; Lamborn v. Bell,
18 Colo. 346, 32 P. 989, 20 L.R.A. 241.
The word as used in Employers' Liability Act has been
extended to include not only the building in which the
business of manufacturing is carried on, but the dam,
flume, and ways which the master provides for the use of
those employes. Boody v. K. & C. Mfg. Co., 77 N.H. 208,
90 A. 859, 860, L.R.A.1916A, 10.
An American money of account, of the value
of the tenth part of a cent.
MILL-HOLMS. Low meadows and other fields
in the vicinity of mills, or watery places about
mill-dams. Enc. Lond.
MILL OATS. A species of wild oats of volunteer
growth with a dark brown or almost black kernel
incased in hard cover with stiff beard, having low
food value. Gibson v. State, 214 Ala. 38, 106 So.
231, 238.
MILL POWER. An expression designating a unit
of water power. It is the descriptive term fre-
quently used to rate water power for the purpose
of renting it. It indicates the amount of power
clue to a stated quantity of water used on the par-
ticular fall. It is a term of practical convenience
in defining the quantity and weight of water avail-
able for use by the lessee. The actual amount of
horse power developed may vary with the efficien-
cy of the water wheels and other appliances sup-
plied by the lessee. Holyoke Water Power Co. v.
Whiting & Co., 276 Mass. 528, 177 N.E. 568, 572.
MILL PRIVILEGE. The right of a riparian pro-
prietor to erect a mill on his land and to use the
power furnished by the stream for the purpose of
operating the mill, with due regard to the rights
of other owners above and below him on the
stream. Hutchinson v. Chase, 39 Me. 511, 63 Am.
Dec. 645; Rome fty. & Light Co. v. Loeb, 141 Ga.
202, 80 S.E. 785, 787, Ann.Cas.1915C, 1023.
MILL RUN. The lumber that comes from the mill
in the ordinary process of its operation. Pye v.
Eagle Lake Lumber Co., 66 Cal.App. 584, 227 P.
193, 194,
MILL SITE. A parcel of land on or contiguous to
a water-course, suitable for the erection and oper-
ation of a mill operated by the power furnished
by the stream. Occum Co. v. Sprague Mfg. Co.,
35 Conn. 512; Mandeville v. Comstock, 9 Mich.
537. Specifically, in American mining law, a par-
cel of land constituting a portion of the public do-
main, located and claimed by the owner of a min-
ing claim under the laws of the United States (or
purchased by him from the government and pat-
ented,) not exceeding five acres in extent, not in-
cluding any mineral land, not contiguous to the
vein or lode, and occupied and used for the pur-
pose of a mill or for other uses directly connected
with the operation of the mine; or a similiar par-
cel of land located and actually used for the pur-
pose of a mill or reduction plant, but not by the
owner of an existing mine nor in connection with
any particular mining claim. See U.S.Rev.St. §
2337, 30 U.S.C.A. § 42.
MILLBANK PRISON. Formerly called the "Pen-
itentiary at Millbank." A prison at Westminster,
for convicts under sentence of transportation, until
the sentence or order shall be executed, or the con-
vict be entitled to freedom, or be removed to some
other place of confinement. Wharton.
MILLEATE, or MILL-LEAT. A trench to convey
water to or from a mill. St. 7 Jac. I. c. 19.
MILLED MONEY. This term means merely
coined money; and it is not necessary that it
should be marked or rolled on the edges. Leach,
708.
MILLING IN TRANSIT. A special privilege al-
lowable at certain designated points, whereby the
carrier, having transported grain to a shipper's
mill, agrees that the shipper may reship the meal
without charge and for which extra compensation
is usually exacted by interstate carriers under con-
trol of the Interstate Commerce Commission.
Priebe v. Southern Ry. Co., 189 Ala. 427, 66 So.
573, 574.
MIL-REIS. The name of a piece of money in the
coinage of Portugal, and the Azores and Madeira
islands. Its value at the customhouse, according
as it is coined in the first, second, or third of the
places named, is $1.12, or 83 1/3 cents, or $1.
MINA. In old English law, a measure of corn or
grain. Cowell; Spelman.
MINABLE COAL. Coal that can be profitably
mined by judicious methods. Martin's Fork Coal
Co. v. Harlan-Wallins Coal Corporation, D.C.Ky.,
14 F.Supp. 902; 908.
MINAGE. A toll or duty paid for selling corn by
the mina. Cowell.
MINARE. In old records, to mine or dig mines.
Minator, a miner. Cowell.
MINATOR CARUC1E. A plowman. Cowell.
MINATUR INNOCENTIBUS QUI PARCIT NO-
CENTIBUS. 4 Coke, 45. He threatens the inno-
cent who spares the guilty.
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MIND
MIND. In its legal sense, "mind" means only the
ability to will, to direct, to permit, or to assent.
McDermott v. Evening Journal Ass'n, 43 N.J.L.
492, 39 Am.Rep. 606.
MIND AND MEMORY. A phrase applied to testa-
tors, denoting the possession of mental capacity
to make a will. In other words, one ought to be
capable of making his will, with an understanding
of the nature of the business in which he is en-
gaged, a recollection of the property he means to
dispose .of, of the persons who are the objects of
his bounty, and the manner in which it is to be
distributed between them. Harrison v. Rowan, 3
Wash. C.C. 585, F.Cas.No.6,141.
MINE. An excavation in the earth from which
ores, coal, or other mineral substances are re-
moved by digging or other mining methods, and
in its broader sense it denotes the vein, lode, or
deposit of minerals. Atlas Milling Co. v. Jones,
C.C.A.Okl., 115 F.2d 61, 63. It may include open
cut, strip, or hydraulic methods of mining. Rudd
v. Hayden, 265 Ky. 495, 97 S.W.2d 35, 37.
MINE RUN COAL. Fine broken coal and dust
obtained by removing lumps and using fine coal
underneath. Brodmeier v. Lamb, 170 Minn. 143,
212 N.W. 187, 188.
MINER. One who mines; a digger for metals
and other minerals. While men of scientific at-
tainments, or of experience in the use of machine-
ry, are to be found in this class, yet the word by
which the class is designated imports neither learn-
ing nor skill. Watson v. Lederer, 11 Colo. 577, 19
P. 604, 1 L.R.A. 854; Barton v. Wichita River Oil
Co., Tex.Civ.App., 187 S.W. 1043, 1046.
MINER'S INCH. See Inch.
MINERAL, adj. Relating to minerals or the pro-
cess and business of mining; bearing or producing
valuable minerals.
MINERAL, n. Any valuable inert or lifeless sub-
stance formed or deposited in its present position
through natural agencies alone, and which is found
either in or upon the soil of the earth or in the
rocks beneath the soil. Barringer & Adams,
Mines, p. lxxvi.
Any natural constituent of the crust of the earth, inor-
ganic or fossil, homogeneous in structure, having a definite
chemical composition and known crystallization. See Web-
ster; Cent. Diet.
The term includes all fossil bodies or matters dug out of
mines or quarries, whence anything may be dug, such as
beds of stone which may be quarried. Earl of Rosse v.
Wainman, 14 Mees. & W. 872.
The word is not a definite term and is susceptible of
limitations or extensions according to intention with which
it is used. Standing alone it might by itself embrace the
soil, hence include sand and gravel, or, under a strict
definition, it might be limited to metallic substances.
Puget Mill Co. v. Duecy, 1 Wash.2d 421, 96 P.2d 571, 573,
574.
MINERAL DEED. A realty conveyance involving
a severance from fee of present title to minerals
in place, either effecting such severance in first
instance or conveying part of such mineral owner-
ship previously severed from the fee. Hickey v.
Dirks, 156 Kan. 326, 133 P.2d 107, 109, 110.
MINERAL DISTRICT. A term occasionally used
in acts of congress, designating in a general way
those portions or regions of the country where val-
uable minerals are mostly found, or where the
business of mining is chiefly carried on, but carry-
ing no very precise meaning and not a known term
of the law. See U. S. v. Smith, C.C.Or., 11 F. 490.
MINERAL LAND ENTRY. See Entry.
MINERAL LANDS. Lands containing deposits
of valuable, useful, or precious minerals in such
quantities as to justify expenditures in the effort
to extract them, and which are more valuable for
the minerals they contain than for agricultural or
other uses. Northern Pac. R. Co. v. Soderberg,
188 U.S. 526, 23 S.Ct. 365, 47 L.Ed. 575; Deffeback
v. Hawke, 115 U.S. 392, 6 S.Ct. 95, 29 L.Ed. 423.
Land3 on which metals or minerals have been discovered
in rock in place. State v. Field, 31 N.M. 120, 241 P. 1027,
1042. "Mineral lands" include not merely metaliferous
lands, but all such as are chiefly valuable for their deposits
of mineral character, which are useful in arts or valuable
for purposes of manufacture, Dunbar Lime Co. v. Utah-
Idaho Sugar Co., C.C.A.Utah, 17 F.2d 351, 354; and em-
brace not only those which the lexicon defines as "min-
eral", but, in addition, such as are valuable for deposits
of marble, slate, petroleum, asphaltum, and even guano.
United States v. Northern Pac. R. Co., 311 U.S. 317, 61
S.Ct. 264, 284, 85 L.Ed. 210.
MINERAL LEASE. An agreement permitting use
of land to explore, and then, if mineral is discover-
ed, giving right to take mineral either for definite
term or so long as it can be produced in paying
quantities upon reserved royalty. Gordon v. Em-
pire Gas & Fuel Co., C.C.A.Tex., 63 F.2d 487, 488.
MINERAL LODE. A mineral bed of rock with
definite boundaries in a general mass of the moun-
tain and also any zone or belt of mineralized rock
lying within boundaries clearly separating it from
the neighboring rock. Duffield v. San Francisco
Chemical Co., C.C.A.Idaho, 205 F. 480, 484.
MINERAL RIGHT. An interest in minerals in
land. A right to take minerals or a right to re-
ceive a royalty. Missouri Pac. R. Co. v. Strohack-
er, 202 Ark. 645, 152 S.W.2d 557, 561; Sheppard v.
Stanolind Oil & Gas Co., Tex.Civ.App., 125 S.W.
2d 643, 648.
"Mineral rights" is a much broader term and is more
inclusive than the term "oil and gas". Federal Gas, Oil &
Coal Co. v. Moore, 290 Ky. 284, 161 S.W.2d 46, 49.
MINERAL ROYALTY. Income received from les-
sees of mineral land. Logan Coal & Timber Ass'n
v. Helvering, C.C.A.3, 122 F.2d 848, 850. The term
is distinguished from mineral interest. Maddox
v. Butchee, 203 La. 299, 14 So.2d 4, 9.
MINERAL SERVITUDE. The right to exploit or
develop. Frost Lumber Industries v. Republic
• Production Co., C.C.A.La., 112 F.2d 462, 466.
MINERATOR. In old records, a miner.
MINIMA P(ENA CORPORALIS EST MAJOR
QUALIBET PECUNIARIA. The smallest corpor-
al punishment is greater than any pecuniary one.
2 Inst. 220.
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MINISTER
MINIME MUTANDA SUNT QUZE CERTAM
HABUERUNT INTERPRETATIONEM. Things
which have had a certain interpretation [whose
interpretation has been settled, as by common
opinion] are not to be altered. Co. Litt. 365;
Wing. Max. p. 748, max. 202.
MINIMENT. An old form of muniment (q. v.).
Blount.
MINIMUM CHARGE. A "minimum charge" in
connection with public utilities rate-fixing means
the minimum monthly bill which will be rendered
regardless of whether or not a customer has used
sufficient of the commodity to make up that sum
at the agreed rate. Ashtabula Gas Co. v. Public
Utilities Commission, 102 Ohio St. 678, 133 N.E.
915, 916, 20 A.L.R. 217.
MINIMUM EST NIHILO PROXIMUM. The small-
est is next to nothing.
MINIMUM WAGE. Such an amount as will main-
tain a normal standard of living, including the
preservation of the health and efficiency of the
worker.
The least wage on which an ordinary individual
can be self-sustaining and obtain the ordinary re-
quirements of life. Associated Industries of Okla-
homa v. Industrial Welfare Commission, 185 Okl.
177, 90 P.2d 899, 913.
MINING. The process or business of extracting
from the earth the precious or valuable metals,
either in their native state or in their ores. In re
Rollins Gold Min. Co., D.C.N.Y., 102 F. 985.
As ordinarily used, the term does not include the extrac-
tion from the earth of rock, marble, or slate, which is
commonly described as "quarrying," although coal and
salt are "mined;" nor does it include sinking wells or
shafts for petroleum or natural gas, unless expressly so
declared by statute, as is the case in Indiana. State v.
Indiana, etc., Min. Co., 120 Ind. 575, 22 N.E. 778, 6 L.R.A.
579; Williams v. Citizens' Enterprise Co., 153 Ind. 496, 55
N.E. 425.
MINING CLAIM. A parcel of land, containing
precious metal in its soil or rock, and appropriated
by an individual, according to established rules, by
the process of "location." St. Louis Smelting &
Refining Co. v. Kemp, 104 U.S. 649, 26 L.Ed. 875;
Northern Pac. R. Co. v. Sanders, C.C.A.Mont., 49
F. 135, 1 C.C.A. 192.
MINING COMPANIES. This designation was
formerly applied in England to the associations
formed in London in 1825 for working nines in
Mexico and South America; but at present it
comprises, both in England and America, all min-
ing projects carried on by joint-stock associations
or corporations. Rapalje & Lawrence.
MINING DISTRICT. A section of country usually
designated by name and described or understood
as being confined within certain natural boundar-
ies, in which the precious metals (or their ores)
are found in paying quantities, and which is work-
ed therefor, under rules and regulations prescribed
or agreed upon by the miners therein. U. S. v.
Smith, C.C.Or., 11 F. 490.
MINING LEASE. A lease of a mine or mining
claim or a portion thereof, to be worked by the
lessee, usually under conditions as to the amount
and character of work to be done, and reserving
compensation to the lessor either in the form of
a fixed rent or a royalty on the tonnage of ore
mined, and which (as distinguished from a li-
cense) conveys to the lessee an interest or estate
in the land, and (as distinguished from an ordinary
lease) conveys not merely the temporary use and
occupation of the land, but a portion of the land
itself, that is, the ore in place and unsevered and
to be extracted by the lessee. Austin v. Hunts-
ville Min. Co., 72 Mo. 541, 37 Am.Rep. 446; Knight
v. Indiana Coal Co., 47 Ind. 113, 17 Am.Rep. 692.
MINING LOCATION. The act of appropriating
and claiming, according to certain established rules
and local customs, a parcel of land of defined area,
upon or in which one or more of the precious
metals or their ores have been discovered, and
which constitutes a portion of the public domain,
with the declared intention to occupy and work it
for mining purposes under the implied license of
the United States. Also the parcel of land so oc-
cupied and appropriated. Poire v. Wells, 6 Colo.
412; St. Louis Smelting & Refining Co. v. Kemp,
104 U.S. 649, 26 L.Ed. 875; Golden Fleece, etc.,
Min. Co. v. Cable, etc., Min. Co., 12 Nev. 328.
MINING PARTNERSHIP. A special type of part-
nership different in many respects from ordinary
or trading partnerships. Meister v. Farrow, 109
Mont. 1, 92 P.2d 753, 757, 758, 760, 761.
An association of several owners of a mine for co-opera-
tion in working the mine. Kahn v. Central Smelting Co.,
102 U.S. 645, 26 L.Ed. 266; Skillman v. Lachman, 23 Cal.
203, 83 Am. Dec. 96; Kimberly v. Arms, 129 U.S. 512, 9
S.Ct. 355, 32 L.Ed. 764.
Generally, where the parties co-operate in developing a
lease for oil and gas, each agreeing to pay his part of the
expenses and to share in the profits or losses, a "mining
partnership" exists. Continental Supply Co. v. Dickson Oil
Co., 94 Okl. 660, 153 P.2d 1017, 1019.
MINING RENT. In practice, the term is used to
designate consideration given for a mining lease,
whether such lease creates a tenancy, conveys a
fee, or grants an incorporeal right or a mere li-
cense. Miller v. Carr, 137 Fla. 114, 188 So. 103,
107.
MINISTER. Ecclesiastical law. A person or-
dained according to the usages of some church or
associated body of Christians for the preaching of
the gospel and filling the pastoral office.
Foreign minister. An ambassador, minister, or
envoy from a foreign government. Cherokee Na-
tion v. Georgia, 5 Pet. 56, 8 L.Ed. 25.
International law. An officer appointed by the
government of one nation as a mediator or ar-
bitrator between two other nations who are en-
gaged in a controversy, with their consent, with a
view to effecting an amicable adjustment of the
dispute.
A general name given to the diplomatic repre-
sentatives sent by one state to another, including
ambassadors, envoys, and residents.
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MINISTER
Practice. An officer of justice, charged with the
execution of the law, and hence termed a "min-
isterial officer;" such as a sheriff, bailiff, coroner,
sheriff's officer. Britt. c. 21.
An agent; one who acts not by any inherent
authority, but under another.
Public law. One of the highest functionaries
in the organization of civil government, standing
next to the sovereign or executive head, acting as
his immediate auxiliary, and being generally
charged with the administration of one of the
great bureaus or departments of the executive
branch of government. Otherwise called a "cab-
inet minister," "secretary of state," or "secretary
of a department."
Public minister. A general term comprehending
all the higher classes of diplomatic representa-
tives,—as ambassadors, envoys, residents,—but
not including the commercial representatives, such
as consuls.
MINISTERIAL. That which is done under the
authority of a superior; opposed to judicial; that
which involves obedience to instructions, but de-
mands no special discretion, judgment, or skill.
State Tax Commission of Utah v. Katsis, 90 Utah
406, 62 P.2d 120, 123, 107 A.L.R. 1477; Blalock v.
Johnston, 180 S.C. 40, 185 S.E. 51, 54, 105 A.L.R.
1115; First Nat. Bank v. Filer, 107 Fla. 526, 145
So. 204, 207, 87 A.L.R. 267.
MINISTERIAL ACT. One which a person per-
forms in a given state of facts in a prescribed man-
ner in obedience to the mandate of legal authority,
without regard to or the exercise of his own judg-
ment upon the propriety of the act being done.
State Tax Commission of Utah v. Katsis, 90 Utah
406, 62 P.2d 120, 123, 107 A.L.R. 1477.
MINISTERIAL ACT OF MUNICIPAL CORPO-
RATION. See Corporate Act of Municipal Corpo-
ration.
MINISTERIAL DUTY. One regarding which
nothing is left to discretion—a simple and definite
duty, imposed by law, and arising under conditions
admitted or proved to exist. City of Tacoma v.
Peterson, 165 Wash. 461, 5 P.2d 1022, 1024. Mott
v. Hull, 51 Okl. 602, 152 P. 92, L.R.A.1916B, 1184.
It arises when an individual has such a legal in-
terest in its performance that neglect of perform-
ance becomes a wrong to such individual. Morton
v. Comptroller General, 4 S.C. 473.
MINISTERIAL TRUST. See Trust.
MINISTERS PLENIPOTENTIARY. Ministers
plenipotentiary possess full powers, and are of
much greater distinction than simple ministers.
These are without any particular attribution of
rank and character, but by custom are now placed
immediately below the ambassador, or on a level
with the envoy extraordinary; Vattel, liv. 4, c. 5,
§ 74; 1 Kent 48; Merlin, ROpert.
MINISTRANT. The party cross-examining a wit-
ness was so called, under the old system of the ec-
clesiastical courts.
MINISTRI REGIS. Lat. In old English law, min-
isters of the king, applied to the judges of the
realm, and to all those who hold ministerial of-
fices in the government. 2 Inst. 208.
MINISTRY. The term as used in England is wid-
er than Cabinet and includes all the holders of
public office who come in and go out with the
Prime Minister. In this respect it may be con-
trasted with the Permanent Civil Service, whose
tenure is independent of public changes. The first
English Ministry as now understood was formed
after the general election of 1696. Macaulay, Hist.
Engl., ch. 24.
"Ecclesiastical functions," or "duties." Rector,
etc., of St. George's Church in City of New York
v. Morgan, 88 Misc. 702, 152 N.Y.S. 497, 498.
MINOR. An infant or person who is under the
age of legal competence. One under twenty-one.
A term derived from the civil law, which describ-
ed a person under a certain age as less than so
many years. Minor viginti quinque annis, one
less than twenty-five years of age. Inst. 1, 14, 2;
Audsley v. Hale, 303 Mo. 451, 261 S.W. 117, 123.
Also, less; of less consideration; lower; a per-
son of inferior condition. Fleta, 2, 47, 13, 15;
Calvin.
MINOR /ETAS. Lat. Minority or infancy. Cro.
Car. 516. Literally, lesser age.
MINOR ANTE TEMPUS AGERE NON POTEST
IN CASU PROPRIETATIS NEC ETIAM CON-
VENIRE; DIFFERETUR USQUE IETATEM;
SED NON CADIT BREVE. 2 Inst. 291. A minor
before majority cannot act in a case of property,
nor even agree; it should be deferred until ma.-
j ority; but the writ does not fail.
MINOR FACT. In the law of evidence, a rela-
tive, collateral, or subordinate fact; a circum-
stance. Wills, Circ.Ev. 27; Burrill, Circ.Ev. p.
121, note, 582.
MINOR JURARE NON POTEST. A minor can-
not make oath. Co.Litt. 172b. An infant cannot
be sworn on a jury. Litt. 289.
MINOR MINOREM CUSTODIRE NON DEBET,
ALMS ENIM PRIESUMITUR MALE REGERE
QUI SEIPSUM REGERE NESCIT. A minor
ought not to be guardian to a minor, for he who
MINISTERIAL OFFICE. See Office.
MINISTERIAL OFFICER. One whose duties are
purely ministerial, as distinguished from execu-
tive, legislative, or judicial functions, requiring
obedience to the mandates of superiors and not in-
volving the exercise of judgment or discretion.
U. S. to Use of Kinney v. Bell, C.C.Pa., 127 F. 1002;
State v. Loechner, 65 Neb. 814, 91 N.W. 874, 59
L.R.A. 915; Reid v. Hood, 2 Nott & McC., S.C., 169,
10 Am.Dec. 582.
MINISTERIAL POWER. See Power.
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MISADVENTURE
knows not how to govern himself is presumed to
be unfit to govern others. Fleta, lib. 1, c. 10;
Co.Litt. 88b.
MINOR NON TENETUR RESPONDERE DUR-
ANTE MINOR! 1ETATE, NISI IN CAUSA DOT-
IS, PROPTER FAVOREM. 3 Bulst. 143. A min-g r is not bound to reply during his minority, ex-
cept as a matter of favor in a cause of dower.
MINOR QUI INFRA IETATEM 12 ANNORUM
FUERIT UITAGARI NON POTEST, NEC EXTRA
LEGEM PONI, QUTA ANTE TALEM AITATEM,
NON EST SUB LEGE ALIQUA, NEC IN DECEN-
NA. Co.Litt. 128. A minor who is under twelve
years of age cannot be outlawed, nor placed with-
out the law, because before such age he is not
under any .law, nor in a decennary.
MINOR SEPTEMDECIM ANNIS NON ADMITTI-
TUR FORE EXECUTOREM. A person under
seventeen years is not admitted to be an executor.
6 Coke, 67. A rule of ecclesiastical law.
MINORA REGALIA. In English law, the lesser
prerogatives of the crown, including the rights of
the revenue. 1 Bl.Comm. 241.
MINORITY. The state or condition of a minor;
infancy.
The smaller number of votes of a deliberative
assembly; opposed to majority, (which see.)
MINT. The place designated by law where bul-
lion is coined into money under authority of the
government.
Also a place of privilege, in Southwark, near
the king's prison, where persons formerly shelter-
ed themselves from justice under the pretext that
it was an ancient palace of the crown. The priv-
ilege is now abolished. Wharton.
MINT-MARK. The masters and workers of the
English mint, in the indentures made with them,
agreed "to make a privy mark in the money they
make, of gold and silver, so that they may know
which moneys were of their own making." After
every trial of the pix, having proved their moneys
to be lawful, they were entitled to their quietus un-
der the great seal, and to be discharged from all
suits or actions. Wharton.
MINT-MASTER. One who manages the coinage.
MINTAGE. The charge or commission taken by
the mint as a consideration for coining into money
the bullion which is brought to it for that pur-
pose; the same as "seigniorage."
Also that which is coined or stamped as money;
the product of the mint.
MINUS. Lat. In the civil law, less; less than.
The word had also, in some connections, the sense
of "not at all." For example, a debt remaining
wholly unpaid was described as "minus solutum."
MINUS LATIUM. See Jus Latium.
MINUS SOLVIT, QUI TARDIUS SOLVIT. He
does not pay who pays too late. Dig. 50, 16, 12, 1.
MINUTE. In measures of time or circumference,
a minute is the sixtieth part of an hour or degree.
MINUTE-BOOK. A book kept by the clerk or pro-
thonotary of a court for entering memoranda of
its proceedings.
MINUTE TITHES. Small tithes, usually belong-
ing to the vicar; e. g. eggs, honey, wax, etc. 3
Burn, Eccl.Law 680; 6 & 7 Will. IV. c. 71, §§ 17,
18, 27.
MINUTES. Business law. Memoranda or notes
of a transaction or proceeding. Thus, the record
of the proceedings at a meeting of directors or
shareholders of a company is called the "minutes."
Practice. A memorandum of what takes place
in court, made by authority of the court. Moore
v. State, 3 Heisk., Tenn., 509.
Scotch Practice. A pleading put into writing
before the lord ordinary, as the ground of his
judgment. Bell.
MINUTIO. Lat. In the civil law, a lessening;
diminution or reduction. Dig. 4, 5, 1.
MIRANDA RULE. Prior to any custodial inter-
rogation; that is, questioning initiated by law en-
forcement officers after a person is taken into cus-
tody or otherwise deprived of his freedom in any
significant way, the person must be warned:
1. That he has a right to remain silent;
2. That any statement he does make may be
used as evidence agaiast him;
3. That he has a right to the presence of an
attorney;
4. That if he cannot afford an attorney, one
will be appointed for him prior to any
questioning if he so desires.
Unless and until these warnings or a waiver of
these rights are demonstrated at the trial, no evi-
dence obtained in the interrogation may be used
against the accused. Miranda v. Arizona, 384
U.S. 436, 444, 478, 479, 86 S.Ct. 1602, 1612, 1630, 16
L.Ed.2d 294.
MIRROR. The Mirror of Justice, or of the Jus-
tices, commonly spoken of as the "Mirror," is an
ancient treatise on the laws of England, suppos-
edly written during the reign of Edward II., and
attributed to one Andrew Horne. But it has been
thought that the germ of it was written before
the Conquest and that Horne only made additions
to it.
MIS. An inseparable particle used. in composi-
tion, to mark an ill sense or depravation of the
meaning; as "miscomputation" or "misaccompt-
ing," e., false reckoning.
MISA. In old English law, the mise or issue in
a writ of right. Spelman.
In old records, a compact or agreement; a form
of compromise. Cowell.
MISADVENTURE. A mischance or accident; a
casualty caused by the act of one person inflicting
injury upon another. Homicide "by misadventure"
occurs where a man, doing a lawful act, without
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MISALLEGE
any intention of hurt, unfortunately kills another.
4 Bl.Comm. 182; Williamson v. State, 2 Ohio Cir.
Ct.R. 292.
MISALLEGE. To cite falsely as a proof or argu-
ment.
MISAPPLICATION. Improper, illegal, wrongful,
or corrupt use or application of funds, property,
etc. Jewett v. U. S., C.C.A.Mass., 100 F. 840, 41
C.C.A. 88; Kansas Flour Mills Co. v. American
Surety Co. of New York, 98 Kan. 618, 158 P. 1118.
MISAPPROPRIATION. The act of misappropri-
ating or turning to a wrong purpose; wrong ap-
propriation; a term which does not necessarily
mean peculation, although it may mean that.
Bannon v. Knauss, 57 Ohio App. 288, 13 N.E.2d
733, 735.
MISBEHAVIOR. Ill conduct; improper or un-
lawful behavior. Smith v. Cutler, 10 Wend., N.Y.,
590, 25 Am.Dec. 580; State v. Arnold, 100 Tenn.
307, 47 S.W. 221.
MISBRANDING. False or misleading labeling.
People v. Rosenbloom, Cal., 119 Cal.App. 759, 2
P.2d 228, 231.
MISCARRIAGE. Medical  jurisprudence. The
expulsion of the ovum or embryo from the uterus
within the first six weeks after conception. Be-
tween that time, and before the expiration of the
sixth month, when the child may possibly live, it
is termed "abortion." When the delivery takes
place soon after the sixth month, it is denominat-
ed "premature labor." But the criminal act of
destroying or bringing forth prematurely the
firtus or unborn offspring of a pregnant woman,
at any time before birth, is termed, in law, "pro-
curing miscarriage." Chit.Med.Jur. 410. Smith
v. State, 33 Me. 59, 54 Am.Dec. 607; People v. Ran-
kin, 10 Cal.2d 198, 74 P.2d 71, 73.
The failure of a woman, from causes beyond
her control to carry a fetus to maturity. Flory
v. Supreme Tribe of Ben Hur, 98 Neb. 160, 152
N.W. 295.
Practice. As used in the statute of frauds,
("debt, default, or miscarriage of another,") this
term means any species of unlawful conduct or
wrongful act for which the doer could be held li-
able in a civil action. Gansey v. Orr, 173 Mo. 532,
73 S.W. 477.
MISCARRIAGE OF JUSTICE. Prejudice to sub-
stantial rights of a party. See the cases of State
v. Cluff, 48 Utah, 102, 158 P. 701, 703; State v. Nell,
117 Wash. 142, 202 P. 7, 8.
MISCASTING. An error in auditing and num-
bering. It does not include any pretended miscast-
ing or misvaluing. 4 Bouvier, Inst. n. 4128.
MISCEGENATION. Mixture of races; marriage
between persons of different races; as between a
white person and a Negro.
Living together in state of adultery or fornica-
tion, by white person and Negro, or descendant of
Negro. Jackson v. State, 23 Ala.App. 555, 129 So.
306.
MISCHARGE. An erroneous charge; a charge,
given by a court to a jury, which involves errors
for which the judgment may be reversed.
MISCHIEF. In legislative parlance, the word is
often used to signify the evil or danger which a
statute is intended to cure or avoid.
In the phrase "malicious mischief," (which see,)
it imports a wanton or reckless injury to persons
or property.
MISCOGNISANT. Ignorant; uninformed. The
word is obsolete.
MISCONDUCT. A transgression of some estab-
lished and definite rule of action, a forbidden act,
a dereliction from duty, unlawful behavior, willful
in character, improper or wrong behavior; its
synonyms are misdemeanor, misdeed, misbehavior,
delinquency, impropriety, mismanagement, of-
fense, but not negligence or carelessness. Man-
della v. Mariano, 61 R.I. 163, 200 A. 478, 479.
MISCONDUCT IN OFFICE. Any unlawful be-
havior by a public officer in relation to the duties
of his office, willful in character. Wysong v. Wal-
den, 120 W.Va. 122; 196 S.E. 573, 575.
MISCONTINUANCE. In practice, an improper
continuance; want of proper form in a continu-
ance; the same with "discontinuance." Cowell.
MISCREANT. In old English law, an apostate;
an unbeliever; one who totally renounced Chris-
tianity. 4 Bl.Comm. 44.
MISDATE. A false or erroneous date affixed to
a paper or document.
MISDELIVERY. The delivery of property by a
carrier or warehouseman to a person not author-
ized by the owner or person to whom the carrier
or warehouseman is bound by his contract to de-
liver it. Cleveland, etc., R. Co. v. Potts, 33 Ind.
App. 564, 71 N.E. 689; Forbes v. Boston & L. R.
Co., 133 Mass. 156.
MISDEMEANANT. A person guilty of a misde-
meanor; one sentenced to punishment upon con-
viction of a misdemeanor. See First-Class Misde-
meanant.
MISDEMEANOR. Offenses lower than felonies
and generally those punishable by fine or impris-
onment otherwise than in penitentiary. People
v. Harshbarger, 296 Ill.App. 397, 16 N.E.2d 247,
248.
An act committed or omitted in violation of a public law
either forbidding or commanding it. State v. Magee Pub.
Co., 29 N.M. 455, 224 P. 1028, 1031, 38 A.L.R. 142; State v.
Jackson, 142 La. 540, 77 So. 196, 197, L.R.A.1918B, 1178.
In the English law, "misdemeanor" is generally used in
contradistinction to "felony ;" and misdemeanors compre-
hend all indictable offenses which do not amount to felony,
as libels, conspiracies, attempts, and solicitations to corn-
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mit felonies, etc. Brown. People v. Upson, 79 Hun 87, 29
N.Y.Supp. 615; In re Bergin, 31 Wis. 386; Walsh v. Peo-
ple, 65 Ill. 65, 16 Am. Rep. 569.
Under modern statutes the distinction between felonies
and misdemeanors is not whether the offense is infamous,
but whether it is punishable by imprisonment in the peni-
tentiary or capitally, in which case it is a "felony" ; other-
wise a "misdemeanor." Jones v. Brinkley, 174 N.C. 23, 93
S.E. 372, 373; Lee Lewis, Inc., v. Dosch, 193 Ky. 163, 235
S.W. 355, 356.
MISDESCRIPTION. An error or falsity in the
description of the subject-matter of a contract
which deceives one of the parties to his injury, or
is misleading in a material or substantial point.
MISDIRECTION. In practice, an error made by
a judge in instructing the jury upon the trial of a
cause.
MISE. The issue in a writ of right. When the
tenant in a writ of right pleads that his title is
better than the demandant's, he is said to join the
mice on the mere right.
Also expenses; costs; disbursements in an ac-
tion.
MISE-MONEY. Money paid by way of contract
or composition to purchase any liberty, etc.
Blount.
MISERA EST SERVITUS, UBI JUS EST VAGUM
AUT INCERTUM. It is a wretched state of slav-
ery which subsists where the law is vague or un-
certain. 4 Inst. 245; Broom, Max. 150.
MISERABILE DEPOSITUM. Lat. In the civil
law, the name of an involuntary deposit, made
under pressing necessity; as, for instance, ship-
wreck, fire, or other inevitable calamity. Poth.
Proc. Civile, pt. 5, c. 1, § 1; Code La. art. 2935,
Civ. Code, art. 2964.
MISERERE. The name and first word of one of
the penitential psalms, being that which was com-
monly used to be given by the ordinary to such
condemned malefactors as were allowed the bene-
fit of clergy; whence it is also called the "psalm
of mercy." Wharton.
MISERICORDIA. Lat. Mercy; a fine or amen
ciarnent; an arbitrary or discretionary amerce-
ment.
MISERICORDIA COMMUNIS. In old English
law, a fine set on a whole county or hundred.
MISFEASANCE. A misdeed or trespass. The
improper performance of some act which a man
may lawfully do. 3 Steph.Comm. 460. Bell v.
Josselyn, 3 Gray, Mass. 309, 63 Am.Dec. 741.
"Nonfeasance" means the omission of an act which a
person ought to do; "misfeasance" is the improper doing
of an act which a person might lawfully do; and "mal-
feasance" is the doing of an act which a person ought not
to do at all. Proksch v. Bettendorf, 218 Iowa 1376, 257
N.W. 383. But "misfeasance" is often used in the sense of
"malfeasance." Coite v. Lynes, 33 Conn. 109; Brooks v.
Hornbeck, Tex.Civ.App., 274 S.W. 162, 163.
MISFEAZANCE. See Misfeasance.
MISFORTUNE. An adverse event, calamity, or
evil fortune, arising by accident, (or without the
will or concurrence of him who suffers from It,)
and not to be foreseen or guarded against by care
or prudence. 20 Q.B.Div. 816. Swetland v. Swet-
land, 100 N.J.Eq. 196, 134 A. 822, .829. In its ap-
plication to the law of homicide, this term always
involves the further idea that the person causing
the death is not at the time engaged in any un-
lawful act. 4 Bl.Comm. 182. Gaunce v. State, 22
Okl.Cr. 361, 211 P. 517, 518.
MISJOINDER. See Joinder.
MISKENNING. In Saxon and old English law,
an unjust or irregular summoning to court; to
speak unsteadily in court; to vary in one's plea.
Cowell; Blount; Spelman.
MISLAY. To deposit in a place not afterwards
recollected; to lose anything by forgetfulness of
the place where it was laid. Shehane v. State, 13
Tex.App. 535.
MISLEADING. Delusive; calculated to lead as-
tray or to lead into error. Diamond Drill Con-
tracting Co. v. International Diamond Drill Con-
tracting Co., 106 Wash. 72, 179 P. 120, 122. In.-
structions which are of such a nature as to be mis-
understood by the jury, or to give them a wrong
impression, are said to be "misleading."
MISNOMER. Mistake in name; giving incorrect
name to person in accusation, indictment, plead-
ing, deed or other instrument. Culpepper v. State,
173 Ga. 799, 161 S.E. 623.
MISPLEADING. Pleading incorrectly, or omit-
ting anything in pleading which is essential to the
support or defense of an action, is so called; as
in the case of a plaintiff not merely stating his
title in a defective manner, but setting forth a
title which is essentially defective in itself; or if,
to an action of debt, the defendant pleads "not
guilty" instead of nil debet. Brown. Lovett v.
Pell, 22 Wend., N.Y., 376; Chicago & A. IL Co. v.
Murphy, 198 Ill. 462, 64 N.E. 1011.
MISPRISION. A word used to describe a misde-
meanor which does not possess a specific name.
3 Inst. 36; United States v. Perlstein, C.C.A.N.J.,
126 F.2d 789, 798. But more particularly and prop-
erly the term denotes either (1) a contempt
against the sovereign, the government, or the
courts of justice, including not only contempts of
court, properly so called, but also all forms of
seditious or disloyal conduct and leze-majesty;
(2) maladministration of high public office, includ-
ing peculation of the public funds; (3) neglect or
light account made of a crime, that is, failure in
the duty of a citizen to endeavor to prevent the
commission of a crime, or, having knowledge of
its commission, to reveal it to the proper authori-
ties. 4 Bl.Comm. 119-126; State v. Biddle, 124 A.
804, 805, 2 W.W.Harr., Del. 401.
Negative misprision. The concealment of some-
thing which ought to be revealed; that is, mis-
prision in the third of the specific meanings given
above.
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MISPRISION
Positive misprision. The commission of some-
thing which ought not to be done; that is, mis-
prision in the first and second of the specific mean-
ings given above.
Practice. A clerical error or mistake made in
writing or keeping records. State v. Ryan, 146
Wash. 114, 261 P. 775, 776.
MISPRISION OF FELONY. The offense of con-
cealing a felony committed by another, but with-
out such previous concert with or subsequent as-
sistance to the felon as would make the party
concealing an accessory before or after the fact.
4 Steph.Comm. 260; 4 Bl.Comm. 121; United
States v. Perlstein, C.C.A.N.J., 126 F.2d 789, 798.
MISPRISION OF TREASON. The bare knowl-
edge and concealment of an act of treason or trea-
sonable plot, that is, without any assent or parti-
cipation therein, for if the latter elements be pres-
ent the party becomes a principal. 4 Bl.Comm.
120; Pen.Code Cal. '§ 38.
MISREADING. Reading a deed or other instru-
ment to an illiterate or blind man (who is a party
to it) in a false or deceitful manner, so that he
conceives a wrong idea of its tenor or contents.
5 Coke, 19; 6 East, 309; Hallenbeck v. Dewitt, 2
Johns., N.Y. 404.
MISRECITAL. The erroneous or incorrect recital
of a matter of fact, either in an agreement, deed,
or pleading.
MISREPRESENTATION. Any manifestation by
words or other conduct by one person to another
that, under the circumstances, amounts to an as-
sertion not in accordance with the facts. A. P.
Landis, Inc., v. Mellinger, 116 Pa.Super. 167, 175 A.
745, 746.
An untrue statement of fact. An incorrect or false rep-
resentation. That which, if accepted, leads the mind to
an apprehension of a condition other and different from
that which exists. Colloquially it is understood to mean a
statement made to deceive or mislead. Haigh v. White
Way Laundry Co., 164 Iowa 143, 145 N.W. 473, 474, 50
L.R.A.,N.S., 1091; Zackwik v. Hanover Fire Ins. Co., Mo.
App., 225 S.W. 135, 138.
In a limited sense, an intentional false statement respect-
ing a matter of fact, made by one of the parties to a con-
tract, which is material to the contract and influential in
producing it. Wise v. Fuller, 29 N.J.Eq. 262; Hicks v.
Wynn, 137 Va. 186, 119 S.E. 133, 135.
A "misrepresentation," which justifies the rescission of a
contract, is a false statement of a substantive fact, or any
conduct which leads to a belief of a substantive fact mate-
rial to proper understanding of the matter in hand, made
with intent to deceive or mislead. Rhodes v. Uhl, 189 Iowa
408, 178 N.W. 394, 400.
Misrepresentation such as will amount to false pretense
is not confined to mere oral misstatements of fact but in-
cludes distribution of printed matter, or a course of con-
duct, manifestly intended to deceive as to conditions actu-
ally existing. Commonwealth v. Dougherty, 84 Pa.Super.
Ct. 319, 321.
False or fraudulent misrepresentation is a representation
contrary to the fact, made by a person with a knowledge
of its falsehood, and being the cause of the other party's
entering into the contract. 6 Clark & F. 232.
Negligent misrepresentation is a false representation
made by a person who has no reasonable grounds for
believing it to be true, though he does not know that it is
untrue, or even believes it to be true. L.R. 4 H.L. 79.
Innocent misrepresentation occurs where the person mak-
ing the representation had reasonable grounds for believ-
ing it to be true. L.R. 2 Q.B. 580.
Insurance law. A statement of something as a
fact which is untrue and material to the risk, and
which assured states knowing it to be untrue and
with intent to deceive, or which insured states
positively as true, not knowing it to be true, and
which has a tendency to mislead. Lawson v.
Southwestern Voluntary Ass'n, 168 Va. 294, 191 S.
E. 648, 649.
Material misrepresentation. In insurance law,
one that would influence a prudent insurer in de-
termining whether or not to accept the risk, or in
fixing the amount of the premium in the event of
such acceptance. Sovereign Camp, W. 0. W., v.
Parker, 36 Ga.App. 695, 138 S.E. 86, 87.
MISSA. Lat. The mass.
MISSZE PRESBYTER. A priest in orders. Blount.
MISSAL. The mass-book.
MISSILIA. In Roman law, gifts or liberalities,
which the praetors and consuls were in the habit
of throwing among the people. Inst. 2, 1, 45.
MISSING SHIP. In maritime law, a vessel is so
called when, computed from her known day of
sailing, the time that has elapsed exceeds the
average duration of similar voyages at the same
season of the year. 2 Duer, Ins. 469.
MISSIONARIES. The term "missionaries," as
used in the liquor trade, applies to men employed
to visit saloons throughout the country and puff
liquors of particular manufacture, so that sales-
men of wholesalers and jobbers will find the way
prepared for them. Hiram Walker & Sons v.
Corning & Co., D.C.Ill., 255 F. 129, 130.
MISSIONS. In church parlance, the establish-
ment of churches and schools and relief depots'
through which are taught the principles of Chris-
tianity, the afflicted cared for, and the needy sup-
plied. Hitchcock v. Board of Home Missions, 259
Ill. 288, 102 N.E. 741, 744, Ann.Cas.1915B, 1.
MISSIVES. In Scotch law, writings passed be-
tween parties as evidence of a transaction. Bell.
MISSTAICUS. In old records, a messenger.
MISSURA. The ceremonies used in a Roman
Catholic church to recommend and dismiss a dy-
ing person.
MISTAKE. Some unintentional act, omission, or
error arising from ignorance, surprise, imposition,
or misplaced confidence. Code Ga. § 3117, Civ.
Code 1910, § 4570; 1 Story, Eq. Jur. § 110.
A mistake exists when a person, under some
erroneous conviction of law or fact, does, or omits
to do, some act which, but for the erroneous con-
viction, he would not have done or omitted.
Jeremy, Eq. Jur. 358; Ward v. Lyman, 108 Vt.
464, 188 A. 892, 896. It may arise either from
unconsciousness, ignorance, forgetfulness, imposi-
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MITTIMUS
tion, or misplaced confidence. Bisph. Eq. § 185;
Salazar v. Steelman, 22 Cal.App.2d 402, 71 P.2d
79, 82.
Mistake of fact is a mistake not caused by the neglect of
a legal duty on the part of the person making the mistake,
and consisting in (1) an unconscious ignorance or forget-
fulness of a fact, past or present, material to the contract;
or (2) belief in the present existence of a thing material
to the contract which does not exist, or in the past exist-
ence of such a thing which has not existed. Callan Court
Co. v. Citizens & Southern Nat. Bank, 184 Ga. 87, 190 S.E.
831, 854.
A mistake of law happens when a party, having full
knowledge of the facts, comes to an erroneous conclusion
as to their legal effect. It is a mistaken opinion or infer-
ence, arising from an imperfect or incorrect exercise of the
judgment, upon facts, Page v. Provines, 179 Okl. 391, 66
P.2d 7, 10; and necessarily presupposes that the person
forming it is in full possession of the facts. The facts
precede the law, and the true and false opinion alike imply
an acquaintance with them. The one is the result of a
correct application of legal principles, which every man is
presumed to know, and is called "law ;" the other, the
result of a faulty application, and is called a "mistake of
law." Hurd v. Hall, 12 Wis. 124; Barnett v. Douglas, 102
Okl. 85, 226 P. 1035, 1037, 39 A.L.R. 188.
Mutual mistake is where the parties have a common
intention, but it is induced by a common or mutual mis-
take. Paine-Fishburn Granite Co. v. Reynoldson, 115 Neb.
520, 213 N.W. 750, 751; Northwest Thresher Co. v. Mc-
Ninch, 42 Okl. 155, 140 P. 1170, 1172. "Mutual" as used in
the expression mutual mistake of fact expresses a thought
of reciprocity and distinguishes it from a mistake which is
a common mistake of both parties. There is something of
the thought of a common mistake because it must affect
both parties. Mistake of fact as ground for relief may be
neither "mutual" nor common in the strict sense because
it may be wholly the mistake of one of the parties, the
other being wholly ignorant both of the fact upon the faith
of which the other has mistakenly acted and that the other
has acted upon such an understanding of the fact situation.
United States Fidelity & Guaranty Co. v. Heller, D.C.Pa.,
259 F. 885, 890; Litteral v. Bevins, 186 Ky. 514, 217 S.W.
369, 370.
MISTER. A title of courtesy. A trade, craft, oc-
cupation, employment, office. Webster.
MISTERY. A trade or calling. Cowell.
MISTRESS. The proper style of the wife of an
esquire or a gentleman in England.
MISTRIAL. An erroneous, invalid, or nugatory
trial; a trial of an action which cannot stand in
law because of want of jurisdiction, or a wrong
drawing of jurors, or disregard of some other
fundamental requisite. C. W. Hunt Co. v. Boston
Elevated Ry. Co., 217 Mass. 319, 104 N.E. 728, 729;
Illinois Oil Co. v. Grandstaff, 118 Okl. 101, 246 P.
832, 833.
MISUSER. An unlawful use of a right. Abuse
of an office or franchise. 2 Bl.Comm. 153.
MITIGATING CIRCUMSTANCES. Such as do not
constitute a justification or excuse of the offense
in question, but which, in fairness and mercy, may
be considered as extenuating or reducing the de-
gree of moral culpability. Heaton v. Wright, 10
How.Prac., N.Y. 82. Those that affect basis for
award of exemplary damages, or reduce actual
damages by showing, not that they were never
suffered, but that they have been partially ex-
tinguished. McClelland v. Climax Hosiery Mills,
252 N.Y. 347, 169 N.E. 605, 608. And in actions for
libel and slander, circumstances bearing on de-
Black's Law Dictionary Revised 4th Ed.-73 1
fendant's liability for exemplary damages by re-
ducing moral culpability, or on liability for actual
damages by showing partial extinguishment there-
of. Civil Practice Act, §§ 262, 338. Fleckenstein
v. Friedman, 266 N.Y. 19, 193 N.E. 537, 539.
MITIGATION. Alleviation; abatement or diminu-
tion of a penalty or punishment imposed by law.
Reduction, diminishing, or lessening amount of
penalty or punishment. People v. Fook, 206 Cal.
64, 273 P. 779, 782.
MITIGATION OF DAMAGES. A reduction of
the amount of damages, not by proof of facts
which are a bar to a part of the plaintiff's cause
of action, or a justification, nor yet of facts which
constitute a cause of action in favor of the de-
fendant, but rather facts which show that the
plaintiff's conceded cause of action does not en-
title him to so large an amount as the showing on
his side would otherwise justify the jury in allow-
ing him. 1 Suth. Dam. 226.
MITIOR SENSUS. Lat. The more favorable ac-
ceptation.
MITIUS IMPERANTI MELIUS PARETUR. The
more mildly one commands, the better is he obey-
ed. 3 Inst. 24.
MITOYENNETE. In French law, the joint own-
ership of two neighbors in a wall, ditch, or hedge
which separates their estates.
MITTENDO MANUSCRIPTUM PEDIS FINIS. An
abolished judicial writ addressed to the treasurer
and chamberlain of the exchequer to search for
and transmit the foot of a fine acknowledged be-
fore justices in eyre into the common pleas. Reg.
Orig. 14.
MITTER. L. Fr. To put, to send, or to pass; as,
mitter restate, to pass the estate; mitter le droit,
to pass a right. These words are used to distin-
guish different kinds of releases.
MITTER AVANT. L. Fr. In old practice, to put
before; to present before a court; to produce in
court.
MITTIMUS. Criminal practice. The name of a
precept in writing, issuing from a court or magis-
trate, directed to the sheriff or other officer, com-
manding him to convey to the prison the person
named therein, and to the jailer, commanding him
to receive and safely keep such person until he
shall be delivered by due course of law. Pub. St.
Mass. 1882, p. 1293. Connolly v. Anderson, 112
Mass. 62; Saunders v. U. S., D.C.Me., 73 F. 786.
Transcript of minutes of conviction and sentence
duly certified by court clerk. United States ex rel.
Chasteen v. Denemark, C.C.A.I11., 138 F.2d 289, 291.
Old English law. A writ enclosing a record sent
to be tried in a county palatine; it derives its
name from the Latin word mittimus, "we send."
It is the jury process of these counties, and com-
mands the proper officer of the county palatine to
command the sheriff to summon the jury for the
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trial of the cause, and to return the record, etc.
Territory v. Hattick, 2 Mart. 0. S., La., 88.
MIXED. Formed by admixture or commingling;
partaking of the nature, character, or legal at-
tributes of two or more distinct kinds or classes.
As to mixed "Action," "Blood," "Contract,"
"Government," "Jury," "Larceny," "Marriage,"
"Nuisance," "Policy," "Presumption," "Property,"
"Tithes," and "War," see those titles.
MIXED ESTATE. Leasehold estates created by
ground rent leases for 99 years renewable forever,
both at common law and in Maryland, are some-
times called "mixed estates". Jones v. Magruder,
D.C.Md., 42 F.Supp. 193, 198.
MIXED INSURANCE COMPANY. One which has,
at least in part, the nature of both stock and mu-
tual companies, and in which a certain Portion of
the profits is divided among the stockholders and
distribution of other funds is made among the
insured. Ohio Farmers Indemnity Co. v. Commis-
sioner of Internal Revenue, C.C.A.6, 108 F.2d 665,
667; Pink v. Town Taxi Co., 138 Me. 44, 21 A.2d
656, 658, 659.
MIXED LAWS. A name sometimes given to those
which concern both persons and property.
MIXED QUESTION OF LAW AND FACT. A
question depending for solution on questions of
both law and fact, but is really a question of ei-
ther law or fact to be decided by either judge or
jury. State v. Hayes, 162 La. 917, 111 So. 327, 329.
MIXED QUESTIONS. This phrase may mean ei-
ther those which arise from the conflict of foreign
and domestic laws, or questions arising on a trial
involving both law and fact. Bennett v. Eddy,
120 Mich. 300, 79 N.W. 481.
MIXED SUBJECTS OF PROPERTY. Such as fall
within the definition of things real, but which are
attended, nevertheless, with some of the legal
qualities of things personal, as emblements, fix-
tures, and shares in public undertakings, connected
with land. Besides these, there are others which,
though things personal in point of definition, are,
in respect of some of their legal qualities, of the
nature of things real; such are animals ferns
naturce, charters and deeds, court rolls, and other
evidences of the land, together with the chests
in which they are contained, ancient family , pic-
tures, ornaments, tombstones, coats of armor, with
pennons and other ensigns, and especially heir-
looms. Wharton.
MIXED TRAIN. "Mixed train" is one carrying
both passengers and freight. State v. Chicago, St.
P., M. & 0. Ry. Co., 115 Neb. 306, 212 N.W. 535,
536; Arizona Eastern R. Co. v. State, 29 Ariz. 446,
242 P. 870, 871.
MIXED TRIBUNALS. A name given to an inter-
national jurisdiction introduced into Egypt in 1878,
after negotiations with the various Christian Pow-
ers of Europe.
This tribunal made the administration of civil justice
quite independent of the government of Egypt. They have
jurisdiction over cases between persons of different nation.
alities, whether native or European, but criminal charges
against natives are heard in the native criminal courts and
those against Europeans in the proper consular courts.
There are three first instance courts, one at Alexandria
with eighteen judges, of whom twelve are foreign, one at
Cairo with nineteen judges, of whom thirteen are foreign.
and one at Mansurah with nine judges, of whom six are
foreign, and a Court of Appeal sitting at Alexandria, corn-
posed of fifteen judges. The jurisdiction cannot be in-
voked unless one party is a foreigner, but it is said to be
not uncommon for Egyptian merchants to assign their
claims to foreigners, so as to get them into these courts.
Ann.Bull. of Comp.Law Bureau, 1911, p. 43. The judges
are subjects of various European states, and of the United
States and Brazil. They are appointed by their respective
governments; Milner, England in Egypt.
These courts were instituted for a period of five years
only, and have been renewed at various times. Bonfils.
Manual of Int.Law 460; 23 L.Q.R. 409; 8 Encyc.Laws of
Eng. 445.
MIXTION. The mixture or confusion of goods or
chattels belonging severally to different owners,
in such a way that they can no longer be separat-
ed or distinguished; as where two measures of
wine belonging to different persons are poured
together into the same cask.
MIXTUM IMPERIUM. Lat. In old English law,
mixed authority; a kind of civil power. A term
applied by Lord Hale to the "power" of certain
subordinate civil magistrates as distinct from "jur-
isdiction." Hale, Anal. § 11.
MOB. An assemblage of many people, acting in
a violent and disorderly manner, defying the law,
and committing, or threatening to commit, depre-
dations upon property or violence to persons.
Alexander v. State, 40 Tex.Cr.R. 395, 50 S.W. 716;
Marshall v. Buffalo, 50 App.Div. 149, 64 N.Y.S. 411;
Champaign County v. Church, 62 Ohio St. 318, 57
N.E. 50, 48 L.R.A. 738.
The word, in legal use, is practically synony-
mous with "riot," but the latter is the more cor-
rect term. Koska v. Kansas City, 123 Kan. 362,
255 P. 57, 58; Blakeman v. City of Wichita, 93 Kan.
444, 144 P. 816, L.R.A.1915C, 578.
MOBBING AND RIOTING. In Scotch law, a gen-
eral term including all those convocations of the
lieges for violent and unlawful purposes, which
are attended with injury to the persons or prop-
erty of the lieges, or terror and alarm to the
neighborhood in which it takes place. The two
phrases are usually placed together; but, never-
theless, they have distinct meanings, and are
sometimes used separately in legal language, the
word "mobbing" being peculiarly applicable to the
unlawful assemblage and violence of a number
of persons, and that of "rioting" to the outrageous
behavior of a single individual. Alis. Crim. Law,
c. 23, p. 509.
MOBILIA. Lat. Movables; movable things; oth-
erwise called "res mobiles."
MOBILIA NON HABENT SITUM. Movables have
no situs or local habitation. Holmes v. Remsen,
4 Johns., N.Y., Ch. 472, 8 Am.Dec. 581.
MOBILIA SEQUUNTUR PERSONAM. Movables
follow the [law of the] person. Story, Conti. Law,
§ 378; Broom, Max. 522,
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MOCK. To deride, to laugh at, to ridicule, to treat
with scorn and contempt. State v. Warner, 34
Conn. 279.
MOCKADOES. A kind of cloth made in England,
mentioned in St. 23 Eliz. c. 9.
MODAL LEGACY. See Legacy.
MODE. The manner in which a thing is done;
as the mode of proceeding, the mode of process.
Anderson's L. Dict.
MODEL. A pattern or representation of some-
thing to be made. A fac simile of something in-
vented, made on a reduced scale, in compliance
with the patent laws. State v. Fox, 25 N.J.L. 566;
Montana Ore Purchasing Co. v. Boston, etc., Min.
Co., 27 Mont. 288, 70 P. 1126.
MODERAMEN INCULPATIE TUTELIE. Lat.
In Roman law, the regulation of justifiable de-
fense. A term used to express that degree of force
in defense of the person or property which a per-
son might safely use, although it should occasion
the death of the aggressor. Calvin; Bell.
MODERATA MISERICORDIA. A writ founded
on Magna Charta, which lies for him who is
amerced in a court, not of record, for any trans-
gression beyond the quality or quantity of the
offense. It is addressed to the lord of the court,
or his bailiff, commanding him to take a mod-
erate amerciament of the parties. New Nat.
Brev. 167; Fitzh. Nat. Brev. 76.
MODERATE CASTIGAVIT. Lat. In pleading, he
moderately chastised. The name of a plea in tres-
pass which justifies an alleged battery on the
ground that it consisted in a moderate chastise-
ment of the plaintiff by the defendant, which,
from their relations, the latter had a legal right
to inflict.
MODERATE SPEED. In admiralty law, as ap-
plied to a steam-vessel, "such speed only is mod-
erate as will permit the steamer reasonably and
effectually to avoid a collision by slackening speed,
or by stopping and reversing, within the distance
at which an approaching vessel can be seen." The
City of New York, C.C.N.Y., 35 F. 609; The Al-
lianca, D.C.N.Y., 39 F. 480. As to sailing vessel,
see The Robert M. Thompson, C.C.A.N.Y., 244 F.
662, 671.
MODERATOR. A chairman or president of an as-
sembly. A person appointed to preside at a popu-
lar meeting. The presiding officer of town-meet-
ings in New England is so called. See Wheeler v.
Carter, 180 Mass. 382, 62 N.E. 471.
MODIATIO. In old English law, a certain duty
paid for every tierce of wine.
MODICA CIRCUMSTANTIA FACTI JUS MU-
TAT. A small circumstance attending an act may
change the law.
MODIFICATION. A change; an alteration which
introduces new elements into the details, or can-
cels some of them, but leaves the general purpose
and effect of the subject-matter intact. Wiley v.
Corporation of Bluffton, 111 Ind. 152, 12 N.E. 165;
State v. Tucker, 36 Or. 291, 61 P. 894, 51 L.R.A. 246.
"Modification" is not exactly synonymous with "amend-
ment," for the former term denotes some minor change in
the substance of the thing, without reference to its im-
provement or deterioration thereby, while the latter word
imports an amelioration of the thing (as by changing the
phraseology of an instrument, so as to make it more dis-
tinct or specific) without involving the idea of any change
in substance or essence.
Scotch law. The term usually applied to the de-
cree of the teind court, awarding a suitable stip-
end to the minister of a parish. Bell.
MODIFY. To alter; to change in incidental or sub-
ordinate features; enlarge, extend; limit, reduce.
State v. Lincoln, 133 Minn. 178, 158 N.W. 50, 52;
U. S. v. Felder, D.C.N.Y., 13 F.2d 527, 528. See
Modification.
MODIUS. Lat. A measure. Specifically, a Ro-
man dry measure having a capacity of about 550
cubic inches; but in medieval English law used as
an approximate translation of the word "bushel."
MODIUS TERRIE VEL AGRI. In old English law,
a quantity of ground containing in length and
breadth 100 feet.
MODO ET FORMA. Lat. In manner and form.
Words used in the old Latin forms of pleadings by
way of traverse, and literally translated in the
modern precedents, importing that the party tra-
versing denies the allegation of the other party, not
only in its general effect, but in the exact manner
and form in which it is made. Steph.P1. 189, 190.
MODUS. Lat. Civil law. Manner; means; way.
Old conveyancing. Mode; manner; the arrange-
ment or expression of the terms of a contract or
conveyance.
Also a consideration; the consideration of a con-
veyance, technically expressed by the word "ut."
A qualification, involving the idea of variance or
departure from some general rule or form, either
by way of restriction or enlargement, according
to the circumstances of a particular case, the will
of a donor, the particular agreement of parties,
and the like. Burrill.
Criminal pleading. The modus of an indictment
is that part of it which contains the narrative of
the commission of the crime; the statement of the
mode or manner in which the offense was com-
mitted. Tray. Lat. Max.
Ecclesiastical law. A peculiar manner of tith-
ing, growing out of custom.
Rank modus. One that is too large. Rankness
is a mere rule of evidence, drawn from the im-
probability of the fact, rather than a rule of law.
2 Steph.Comm. 729.
MODUS DE NON DECIMANDO. In ecclesiastical
law, a custom or prescription of entire exemption
from the payment of tithes; this is not valid,
unless in the case of abbey-lands.
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MODUS
MODUS DE NON DECIMANDO NON VALET. A
modus (prescription) not to pay tithes is void.
Lofft, 427; Cro.Eliz. 511; 2 Shars.B1.Comm. 31.
MODUS DECIMANDI. In ecclesiastical law, a
manner of tithing; a partial exemption from
tithes, or a pecuniary composition prescribed by
immemorial usage, and of reasonable amount;
for it will be invalid as a rank modus if greater
than the value of the tithes in the time of Richard
I. Stim.Law Gloss.
MODUS ET CONVENTIO VINCUNT LEGEM.
Custom and agreement overrule law. This maxim
forms one of the first principles relative to the law
of contracts. The exceptions to the rule here laid
down are in cases against public policy, morality,
etc. 2 Coke, 73; Broom, Max. 689, 691-695.
MODUS HABILIS. A valid manner.
MODUS LEGEM DAT DONATION!. Custom
gives law to the gift. Co.Litt. 19; Broom, Max.
459.
MODUS LEVANDI FINES. The manner of levy-
ing fines. The title of a short statute in French
passed in the eighteenth year of Edward I. 2 Inst.
510; 2 Bl.Comm. 349.
MODUS TENENDI. The manner of holding; i. e.,
the different species of tenures by which estates
are held.
MODUS TRANSFERRENDI. The manner of
transferring.
MODUS VACANDI. The manner of vacating.
How and why an estate has been relinquished or
surrendered by a vassal to his lord might well be
referred to by this phrase. Tray.Lat.Max. 8. v.
MOEBLE. L. Fr. Movable. Biens moebles, mov-
able goods. Britt. c. 11.
MOERDA. The secret killing of another; mur-
der. 4 Bl.Comm. 194.
MOFUSSIL. In Hindu law, separated; particular-
ized; the subordinate divisions of a district in con-
tradistinction to Sadder or Sudder, which implies
the chief seat of government. Wharton.
MOHAMMEDAN LAW. A system of native law
prevailing among the Mohammedans in India, and
administered there by the British government.
MOHATRA. In French law, a transaction cover-
ing a fraudulent device to evade the laws against
usury.
It takes place where an individual buys merchan-
dise from another on a credit at a high price, to
sell it immediately to the first seller, or to a third
person who acts as his agent, at a much less price
for cash. 16 Toullier, no. 44.
MOIDORE. A gold coin of Portugal, valued at
twenty-seven English shillings.
MOIETY. The half of anything. Joint tenants
are said to hold by moieties. Litt. 125; 3 C.B. 274,
283; Young v. Smithers, 181 Ky. 847, 205 S.W. 949,
950.
MOIETY ACTS. A name sometimes applied to
penal and criminal statutes which provide that
half the penalty or fine shall inure to the benefit
of the informer.
MOLENDINUM. In old records, a mill.
MOLENDUM. A grist; a certain quantity of corn
sent to a mill to be ground.
MOLESTATION. In Scotch law, a possessory ac-
tion calculated for continuing proprietors of land-
ed estates in the lawful possession of them till the
point of right be determined against all who shall
attempt to disturb their possession. It is chiefly
used in questions of commonty or of controverted
marches. Ersk.Inst. 4, 1, 48.
MOLITURA. The toll or multure paid for grind-
ing corn at a mill. Jacob.
MOLITURA LIBERA. Free grinding; a liberty
to have a mill without paying tolls to the lord.
Jacob.
MOLLITER MANUS IMPOSUIT. Lat. He gent-
ly laid hands upon. Formal words in the old Latin
pleas in actions of trespass and assault where a
defendant justified laying hands upon the plaintiff,
as where it was done to keep the peace, etc. The
phrase is literally translated in the modern prec-
edents, and the original is retained as the name of
the plea in such cases. 3 Bl.Comm. 21; 1 Chit.Pl.
501, 502; Id. 1071.
MOLMUTIAN LAWS. The laws of Dunvallo
Molmutuis, a legendary or mythical king of the
Britons, who is supposed to have begun his reign
about 400 B. C. These laws were famous in the
land till the Conquest. Tomlins; Mozley & White-
ley.
MOMENTUM. In the civil law, an instant; an
indivisible portion of time. Calvin.
A portion of time that might be measured; a
division or subdivison of an hour; answering in
some degree to the modern minute, but of longer
duration. Calvin.
MONACHISM. The state of monks.
MONARCHY. A government in which the su-
preme power is vested in a single person.
Where a monarch is Invested with absolute power, the
monarchy is termed "despotic;" where the supreme pow-
er is virtually in the laws, though the majesty of govern-
ment and the administration are vested in a single person,
it is a "limited" or "constitutional" monarchy. It is
hereditary where the regal power descends immediately
from the possessor to the next heir by blood, as in Eng-
land; or elective, as was formerly the case in Poland.
Wharton.
MONASTERIUM. A monastery; a church. Spel-
man.
MONASTICON. A book giving an account of
monasteries, convents, and religious houses.
MONETA. Lat. Money, (q. v.).
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MONEY
MONETA EST JUSTUM MEDIUM ET MENSURA
RERUM COMMUTABELIUM, NAM PER MEDI-
UM MONETIE FIT OMNIUM RERUM CONVEN-
TENS ET JUSTA ZESTIMATIO. Da y . Ir. K. B. 18.
Money is the just medium and measure of com-
mutable things, for by the medium of money a
convenient and just estimation of all things is
made.
MONETAGIUM. Mintage, or the right of coin-
ing money. Cowell. Hence, anciently, a tribute
payable to a lord who had the prerogative of coin-
ing money, by his tenants, in consideration of his
refraining from changing the coinage.
MONETANDI JUS COMPREHENDITUR IN RE-
GALIBUS QUIE NUNQUAM A REGIO SCEPTRO
ABDICANTUR. The right of coining money is
comprehended among those royal prerogatives
which are never relinquished by the royal scepter.
Da y . Ir. K. B. 18.
MONETARY. The usual meaning is "pertaining
to coinage or currency or having to do with mon-
ey", but it has been held to include personal prop-
erty. In re Kipp's Will, Sur., 37 N.Y.S.2d 541, 543.
MONEY. In usual and ordinary acceptation it
means gold, silver, or paper money used as circu-
lating medium of exchange, And does not embrace
notes, bonds, evidences of debt, or other personal
or real estate. Lane v. Railey, 280 Ky. 319, 133
S.W.2d 74, 79, 81. Currency; the circulating me-
dium; cash.
The term "moneys" is not of more extensive signification
than "money," and means only cash, and not things in
action. Mann v. Mann, 14 Johns., N.Y., 1, 7 Am.Dec. 416.
In its strict technical sense, "money" means coined
metal, usually gold or silver, upon which the government
stamp has been impressed to indicate its value. In its
more popular sense, "money" means any currency, tokens,
bank-notes, or other circulating medium in general use as
the representative of value. Kennedy v. Briere, 45 Tex.
305; Cook v. State, 130 ,Nrk. 90, 196 S. W. 922, 924; Vick
v. Howard, 136 Va. 101, 116 S.E. 465, 467, 31 A.L.R. 240.
The simple meaning of "money" is current coin, but it
may mean possessions expressible in money values. "Mon-
ey" has no technical meaning, but is of ambiguous import,
and may be interpreted having regard to all surrounding
circumstances under which it is used. "Money" is often
and popularly used as equivalent to "property." "Money"
means wealth reckoned in terms of money; capital con-
sidered as a cash asset; specifically such wealth or capital
dealt in as a commodity to be loaned, invested, or the like;
wealth considered as a cash asset. Salt Lake County v.
Utah Copper Co., C.C.A.Utah, 93 F.2d 127, 132.
In its more comprehensive and general sense, it means
wealth,—the representative of commodities of all kinds, of
lands, and of everything that can be transferred in com-
merce. Paul v. Ball, 31 Tex. 10. A general, indefinite
term for the measure and representative of value.
Public Money. Revenue. Hays v. State, 22 Okl.Cr. 99,
210 P. 728, 730. Money received by officers of the state in
the ordinary processes of taxation, etc. Beaumont S. L.
& W. Ry. Co. v. State, Tex.Civ.App., 173 S.W. 641, 642;
Wardell v. Town of Killingly, 97 Conn. 423, 117 A. 520, 522.
Under a municipal charter, money or funds belonging to a
city; moneys which are owing or payable to the city in its
corporate capacity, such as assessments, license fees, or
moneys derived from the sales of property, wharfage
charges, and such like, City of Sacramento v. Simmons, 66
Cal. App. 18, 225 P. 36, 39. Under a statute, all money
which by law the sheriff in his capacity as such and as
treasurer of the county and district is authorized to collect,
receive, and disburse for public purposes. Bunch v. Short,
78 W.Va. 764, 90 S.E. 810, 812. As used in the United
States statutes, the money of the federal government re-
ceived from the public revenues, or intrusted to its fiscal
officers, wherever it may be. See Branch v. U. S., 12 CICI.
281.
As to money "Broker," "Count," "Judgment," and
"Scrivener," see those titles.
MONEY-BILL. In parliamentary language, an act
by which revenue is directed to be raised, for any
purpose or in any shape whatsoever, either for
governmental purposes, and collected from the
whole people generally, or for the benefit of a par-
ticular district, and collected in that district, or
for making appropriations. Opinion of Justices,
126 Mass. 547; Northern Counties Inv. Trust v.
Sears, 30 Or. 388, 41 P. 931, 35 L.R.A. 188.
MONEY CHANGERS. A money changer is one
whose occupation is the exchanging of kinds or
denominations of currency, and the common mean-
ing of the term pertained to those persons who, in
early history, engaged in the business of foreign
exchange and it includes the business of a banker
and buying and selling of uncurrent funds and the
exchanging of one kind of money for another. Ar-
nold v. City of Chicago, 387 Ill. 532, 56 N.E.2d 795,
799.
MONEY CLAIMS. In English practice, under the
judicature act of 1875, claims for the price of goods
sold, for money lent, for arrears of rent, etc., and
other claims where money is directly payable on a
contract express or implied, as opposed to the cas-
es where money is claimed by way of damages for
some independent wrong, whether by breach of
contract or otherwise. These "money claims" cor-
respond very nearly to the "money counts" hith-
erto in use. Mozley & Whitley.
MONEY DEMAND. A claim for a fixed and liq-
uidated amount of money, or for a sum which
can be ascertained by mere calculation; in this
sense, distinguished from a claim which must be
passed upon and liquidated by a jury, called "dam-
ages." Roberts v. Nodwift, 8 Ind. 341; Mills v.
Long, 58 Ala. 460.
MONEY HAD AND RECEIVED. In pleading, the
technical designation of a form of declaration in
assumpsit, wherein the plaintiff declares that the
defendant had and received certain money, etc.
Gist of action for "money had and received" is that
defendant has received money which, in equity and good
conscience, should have been paid to plaintiff and under
such circumstances that he ought to pay it over. Bosworth
v. Wolfe, 146 Wash. 615, 264 P. 413, 417, 56 A.L.R. 1117.
MONEY LAND. A phrase descriptive of money
which is held upon a trust to convert it into land.
MONEY LENT. In pleading, the technical name
of a declaration in an action of assumpsit for that
the defendant promised to pay the plaintiff for
money lent.
MONEY MADE. The return made by a sheriff to
a writ of execution, signifying that he has collect-
ed the sum of money required by the writ.
MONEY OF ADIEU. In French law, earnest mon-
ey; so called because given at parting in comple-
tion of the bargain. Arrhes is the usual French
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MONEY
word for earnest money; "money of adieu" is a
provincialism found in the province of Orleans.
Poth.Cont. 507.
MONEY ORDER. Under the postal regulations
of the United States, a money order is a species
of draft drawn by one post-office upon another for
an amount of money deposited at the first office by
the person purchasing the money order, and pay-
able at the second office to a payee named in the
order. U. S. v. Long, C.C.Ga., 30 F. 679.
MONEY—ORDER OFFICE. One of the post-offices
authorized to draw or pay money orders.
MONEY PAID. In pleading, the technical name
of a declaration in assumpsit, in which the plain-
tiff declares for money paid for the use of the de-
fendant.
MONEYED CAPITAL. This term has a more
limited meaning than the term "personal proper-
ty," and applies to such capital as is readily solv-
able in money. Mercantile Nat. Bank v. New
York, 121 U.S. 138, 7 S.Ct. 826, 30 L.Ed. 895.
MONEYED CORPORATION. See Corporation.
MONGER. A dealer or seller. It is seldom or
never used alone, or otherwise than after the
name of any commodity, to express a seller of such
commodity.
MONIERS, or MONEYEERS. Ministers of the
mint; also bankers. Cowell.
MONIMENT. A memorial, superscription, or rec-
ord.
MONITION. Admiralty. The summons to ap-
pear and answer, issued on filing the libel; which
is either a simple monition in personam or an at-
tachment and monition in rem. Ben.Adm. 228,
239.
It is sometimes termed "monition viis et modis," and
has been supposed to be derived from the old Roman prac-
tice of summoning a defendant. Manro v. Almeida, 10
Wheat. 490, 6 L.Ed. 369.
The monition, in American admiralty practice, is, in
effect, a summons, citation, or notice, though in form a
command to the marshal to cite and admonish the defend-
ant to appear and answer, and not a summons addressed to
the party. 2 Conk.Adm., 2d Ed., 147.
General monition. In civil law and admiralty
practice, a monition or summons to all parties in
interest to appear and show cause against the de-
cree prayed for.
Practice. A monition is a formal order of the
court commanding something to be done by the
person to whom it is directed, and who is called
the "person monished." Thus, when money is de-
creed to be paid, a monition may be obtained com-
manding its payment. In ecclesiastical procedure,
a monition is an order monishing or warning the
party complained against to do or not to do a cer-
tain act "under pain of the law and contempt there-
of." A monition may also be appended to a sen-
tence inflicting a punishment for a past offense;
in that case the monition forbids the repetition of
the offense. Sweet.
MONITORY LETTERS. Communications of
warning and admonition sent from an ecclesias-
tical judge, upon information of scandal and abus-
es within the cognizance of his court.
MONOCRACY. A government by one person.
MONOCRAT. A monarch who governs alone; an
absolute governor.
MONOGAMY. The marriage of one wife only, or
the state of such as are restrained to a single wife.
Webster.
A marriage contracted between one man and
one woman, in exclusion of all the rest of mankind.
The term is used in opposition to "bigamy" and
"polygamy." Wolff, Dr. de la Nat. § 857.
MONOGRAM. A character or cipher composed
of one or more letters interwoven, being an ab-
breviation of a name.
MONOGRAPH. A special treatise upon a par-
ticular subject of limited range; a treatise or com-
mentary upon a particular branch or division of a
general subject.
MONOMACHY. A duel; a single combat.
It was anciently allowed by law for the trial or
proof of crimes. It was even permitted in pecun-
iary causes, but it is now forbidden both by the
civil law and canon laws.
MONOMANIA. In medical jurisprudence, de-
rangement of a single faculty of the mind, or with
regard to a particular subject, the other faculties
being in regular exercise. See Insanity.
MONOPOLIA DICITUR, CUM UNUS SOLUS AL-
IQUOD GENUS MERCATURIE UNIVERSUM
EMIT, PRETIUM AD SUUM LIBITUM STATU-
ENS. 11 Coke, 86. It is said to be a monopoly
when one person alone buys up the whole of one
kind of commodity, fixing a price at his own pleas-
ure.
MONOPOLIUM. The sole power, right, or priv-
ilege of sale; monopoly; a monopoly. Calvin.
MONOPOLY. A privilege or peculiar advantage
vested in one or more persons or companies, con-
sisting in the exclusive right (or power) to carry
on a particular business or trade, manufacture a
particular article, or control the sale of the whole
supply of a particular commodity.
Defined in English law to be "a license or privilege
allowed by the king for the sole buying and selling, mak-
ing, working, or using, of anything whatsoever; whereby
the subject in general is restrained from that liberty of
manufacturing or trading which he had before." 4 Bl.
Comm. 159; 4 Steph.Comm. 291; State v. Duluth Board of
Trade, 107 Minn. 506, 121 N.W. 395, 23 L.R.A.,N.S., 1280.
A monopoly consists in the ownership or control of so
large a part of the market-supply or output of a given
commodity as to stifle competition, restrict the freedom of
commerce, and give the monopolist control over prices.
State v. Atlantic Ice & Coal Co., 210 N.C. 742, 188 S.E. 412,
416.
MONSTER. A prodigious birth; a human birth
or offspring not having the shape of mankind,
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MOOT
which cannot be heir to any land, albeit it be
brought forth in marriage. Bract. fol. 5; Co.Litt.
7, 8; 2 Bl.Comm. 246.
MONSTRANS DE DROIT. L. Fr. In English
law, a showing or manifestation of right; one of
the common law methods of obtaining possession
or restitution from the crown, of either real or
personal property.
It is the proper proceeding when the right of the party,
as well as the right of the crown, appears upon record, and
consists in putting in a claim of right grounded on facts
already acknowledged and established, and praying the
judgment of the court whether upon these facts the king
or the subject has the right. 3 B1.Comm. 256; 4 Coke, 54b.
MONSTRANS DE FAITS. L. Fr. In old English
practice, a showing of deeds; a species of profert.
Cowell.
MONSTRAVERUNT, WRIT OF. In English law,
a writ which lies for the tenants of ancient de-
mesne who hold by free charter, and not for those
tenants who hold by copy of court roll, or by the
rod, according to the custom of the manor. Fitzh.
Nat. Brev. 14.
MONSTRUM. A box in which relics are kept;
also a muster of soldiers. Cowell.
MONTES. In Spanish law, forests or woods.
White, New Recop. b. 2, tit. 1, c. 6, § 1.
MONTES PIETATIS. Public pawnbroking estab-
lishments; institutions established by govern-
ment, in some European countries, for lending
small sums of money on pledges of personal prop-
erty. In France they are called "monts de piëte."
MONTH. Word "month," unless otherwise defin-
ed, means "calendar month," or time from any
day of any of the months as adjudged in the cal-
endar to corresponding day, if any, if not any, to
last day, of next month. Daniel v. Ormand, 26
Ala.App. 441, 163 So. 361.
The space of time denoted by this term varies according
as one or another of the following varieties of months is
intended:
Astronomical, containing one-twelfth of the time occu-
pied by the sun in passing through the entire zodiac.
Calendar, civil, or solar, which is one of the months in
the Gregorian calendar,—January, February, March, etc.,
—which are of unequal length.
Lunar, being the period of one revolution of the moon,
or twenty-eight days.
The word "month," when used in a statute or contract
without qualification, meant at common law a lunar month
of 28 days. State v. White, 73 Fla. 426, 74 So. 486, 487.
The matter is generally regulated by statute now. In re
McNamara's Estate, 181 Cal. 82, 183 P. 552, 556, 7 A.L.R.
313.
MONUMENT. Anything by which the memory
of a person, thing, idea, art, science or event is
preserved or perpetuated. A tomb where a dead
body has been deposited. In re Ogden, 25 R.I.
373, 55 A. 933; Rhode Island Hospital Trust Co. v.
Benedict, 41 R.I. 143, 103 A. 146, 147.
In real-property law and surveying, monuments
are visible marks or indications left on natural or
other objects indicating the lines and boundaries
of a survey. In this sense the term includes not
only posts, pillars, stone markers, cairns, and the
like, but also fixed natural objects, blazed trees,
and even a watercourse. Grier v. Pennsylvania
Coal Co., 128 Pa. 79, 18 A. 480; Cox v. Freedley, 33
Pa. 124, 75 Am.Dec. 584.
MONUMENTA QUZE NOS RECORDA VOCAM-
US SUNT VERITATIS ET VETUSTATIS VESTIG-
IA. Co.Litt. 118. Monuments, which we call "rec-
ords," are the vestiges of truth and antiquity.
MONUNG. See Manung.
MONYA, In Norman law, moneyage. A tax or
tribute of one shilling on every hearth, payable
to the duke every three years, in consideration
that he should not alter the coin. Hale, Com.Law,
148, and note.
MOOKTAR. In Hindu law, an agent or attorney.
MOOKTARNAMA. In Hindu law, a written au-
thority constituting an agent; a power of attor-
ney.
MOONSHINE. Intoxicating liquor illicitly pro-
duced or smuggled into community for beverage
purposes, or spirituous liquor, illegally distilled
or manufactured. State v. King, 331 Mo. 268, 53
S.W.2d 252, 254.
MOOR. An officer in the Isle of Man, who sum-
mons the courts for the several sheadings. The
office is similar to the English bailiff of a hundred.
MOORAGE. A sum due by law or usage for
mooring or fastening of ships to trees or posts
at the shore, or to a wharf. Wharf Case, 3 Bland,
Md., 373.
MOORING. In maritime law, anchoring or mak-
ing fast to the shore or dock; the securing or
confining a vessel in a particular station, as by
cables and anchors or by a line or chain run to the
wharf.
A vessel is "moored in safety," within the meaning of a
policy of marine insurance, when she is thus moored to a
wharf or dock, free from any immediate danger from any
of the perils insured against. 1 Phil.Ins. 968; Bramhall v.
Sun Mut. Ins. Co., 104 Mass. 516, 6 Am.Rep. 261.
MOOT, n. English law. Moots are exercises in
pleading, and in arguing doubtful cases and ques-
tions, by the students of an inn of court before
the benches of the inn. Sweet.
Saxon law. A meeting or assemblage of peo-
ple, particularly for governmental or judicial pur-
poses. The more usual forms of the word were
"mote" and "gemot." See those titles.
MOOT, adj. A subject for argument; unsettled;
undecided. A moot point is one not settled by ju-
dicial decisions. A moot case is one which seeks
to determine an abstract question which does not
arise upon existing facts or rights. Adams v.
Union R. Co., 21 R.I. 134, 42 A. 515, 44 L.R.A. 273.
One which seeks to get a judgment on a pretended con-
troversy, or a decision in advance about a right before it
has been actually asserted and contested, or a judgment on
some matter which, when rendered, for any reason, cannot
have any practical legal effect upon a then existing con-
troversy. Smith v. Smith, 209 Wis. 605, 245 N.W. 644, 645.
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MOOT COURT
MOOT COURT. A court held for the arguing of
moot cases or questions.
MOOT HALL. The place where moot cases were
argued. A o a council-chamber, hall of judgment,
or town-h I.
MOOT HILL Hill of meeting, (gemot,) on which
the Britons used to hold their courts, the judge
sitting on the eminence; the parties, etc., on an
elevated platform below. Enc.Lond.
MOOT MAN. One of those who used to argue the
reader's cases in the inns of court.
MOOTA CANUM. In old English law, a pack of
dogs. Cowell.
MOOTER. Marihuana is popularly known among
the criminal element as "muggles," or "mooter"
and addicts are commonly termed "muggle heads."
State v. Navaro, 83 Utah 6, 26 P.2d 955.
MOOTING. The exercise of arguing questions of
law or equity, raised for the purpose. See Moot.
MORA. Lat. In the civil law, delay; default;
neglect; culpable delay or default. Calvin.
MORA. Sax. A moor; barren or unprofitable
ground; marsh; a heath; a watery bog or moor.
Co.Litt. 5; Fleta, 1, 2, c. 71.
MORA MUSSA. A watery or boggy moor; a
morass.
MORA REPROBATUR IN LEGE. Delay is re-
probated in law. Jenk.Cent. p. 51, case 97.
MORAL. Pertains to character, conduct, inten-
tion, social relations, etc. United States v. Car-
roll,, D.C.Mo., 30 r.Supp. 3, 6.
1. Pertaining or relating to the conscience or moral
sense or to the general principles of right conduct.
2. Cognizable or enforceable only by the conscience or
by the principles of right conduct, as distinguished from
positive law.
3. Depending upon or resulting from probability; rais-
ing a belief or conviction in the mind independent of strict
or logical proof.
4. Involving or affecting the moral sense; as in the
phrase "moral insanity."
MORAL ACTIONS. Those only in which men
have knowledge to guide them, and a will to choose
for themselves. Ruth, Inst. lib. 1, c. 1.
MORAL CERTAINTY. That degree of assurance
which induces a man of sound mind to act, with-
out doubt, upon the conclusions to which it leads.
Wills, Circ.Ev. 7. A high degree of impression of
the truth of a fact, falling short of absolute cer-
tainty, but sufficient to justify a verdict of guilty,
even in a capital case. Burrill, Circ.Ev. 198-200.
As explained in the Century Dictionary, it signifies a
probability sufficiently strong to justify action on it. In
Webster's International, the first definition given is, "a
very high degree of probability, although not demonstra-
ble, as a certainty." It has also been used as indicating a
conclusion of the mind established beyond a reasonable
doubt. Gray v. State, 56 Okl.Cr. 208, 38 P.2d 967.
The phrase "moral certainty" has been introduced into
our jurisprudence from the publicists and metaphysicians,
and signifies only a very high degree of probability. It
was observed by Puffendorf that, "when we declare such
a thing to be morally certain, because it has been con-
firmed by credible witnesses, this moral certitude is noth-
ing else but a strong presumption grounded on probable
reasons, and which very seldom fails and deceives us."
"Probable evidence," says Bishop Butler, in the opening
sentence of his Analogy, "is essentially distinguished from
demonstrative by this: that it admits of degrees, and of
all variety of them, from the highest moral certainty to the
very lowest presumption." Corn. v. Costley, 118 Mass. 23.
MORAL CONSIDERATION. See Consideration.
MORAL DURESS. Consists in imposition, op-
pression, undue influence, or the taking of undue
advantage of the business or financial stress or
extreme necessity or weakness of another. Lafay-
ette Dramatic Productions v. Ferentz, 305 Mich.
193, 9 N.W.2d 57, 66, 145 A.L.R. 1158.
MORAL EVIDENCE. As opposed to "mathemati-
cal" or "demonstrative" evidence, this term de-
notes that kind of evidence which, without devel-
oping an absolute and necessary certainty, gener-
ates a high degree of probability or persuasive
force. It is founded upon analogy or induction, ex-
perience of the ordinary course of nature or the
sequence of events, and the testimony of men.
MORAL FRAUD. This phrase is one of the less
usual designations of "actual" or "positive" fraud
or "fraud in fact," as distinguished from "con-
structive" fraud or "fraud in law." It means fraud
which involves actual guilt, a wrongful purpose,
or moral obliquity.
MORAL HAZARD. See Hazard.
MORAL INSANITY. See Insanity,
MORAL LAW. The law of conscience; the ag-
gregate of those rules and principles ,  of ethics
which relate to right and wrong conduct and pre-
scribe the standards to which the actions of men
should conform in their dealings with each other.
Moore v. Strickling, 46 W.Va. 515, 33 S.E. 274, 50
L.R.A. 279.
MORAL OBLIGATION. See Obligation.
MORAL TURPITUDE. An act of baseness, vile-
ness, or depravity in the private and social duties
which a man owes to his fellow men, or to society
in general, contrary to the accepted and customary
rule of right and duty between man and man.
Traders & General Ins. Co. v. Russell, Tex.Civ.
App., 99 S.W.2d 1079, 1084; Jordan v. De George,
341 U.S. 223, 71 S.Ct. 703, 706.
Conduct contrary to justice, honesty, modesty,
or good morals. Marsh v. State Bar of California,
210 Cal. 303, 291 P. 583, 584.
MORANDIE SOLUTIONIS CAUSA. Lat. For the
purpose of delaying or postponing payment or
performance.
MORATORIUM. A term designating suspension
of all or of certain legal remedies against debtors,
sometimes authorized by law during financial dis-
tress. Brown v. State Nat. Bank of Shawnee, 133
Okl. 173, 271 P. 833, 834. A period of permissive
or obligatory delay; specifically, a period during
which an obligor has a legal right to delay meeting
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MORTALITY
an obligation. State ex rel. Jensen Livestock Co.
v. Hyslop, 111 Mont. 122, 107 P.2d 1088, 1092.
MORATUR IN LEGE. Lat. He delays in law.
The phrase describes the action of one who de-
murs, because the party does not proceed in plead-
ing, but rests or abides upon the judgment of the
court on a certain point, as to the legal sufficiency
of his opponent's pleading. The courts deliberate
and determine thereupon.
MORAVIANS. Otherwise called "Herrnhutters"
or "United Brethren." A sect of Christians whose
social polity is particular and conspicuous. It
sprung up in Moravia and Bohemia, on the open-
ing of that reformation which stripped the chair
of St. Peter of so many votaries, and gave birth
to so many denominations of Christians. They
give evidence on their solemn affirmation. 2
Steph.Comm. 338n.
MORBUS SONTICUS. Lat: in" the civil law, a
sickness which rendered a man incapable of at-
tending to business.
MORE COLONICO. Lat. In old pleading, in hus-
band-like manner. Townsh.Pl. 198.
MORE OR LESS. About; substantially; or ap-
proximately; implying that both parties assume
the risk of any ordinary discrepancy. Alexander
v. Hicks, 242 Ala. 243, 5 So.2d 781, 782, 783.
The words are intended to cover slight or unimportant
inaccuracies in quantity, Carter v. Finch, 186 Ark. 954, 57
S.W.2d 408; and are ordinarily to be interpreted as taking
care of unsubstantial differences or differences of small
importance compared to the whole number of items trans-
ferred. Crawl v. Box, 144 Okl. 25, 288 P. 942, 946.
MOREOVER. In addition thereto, also, further-
more, likewise, beyond this, besides this. Pagano
v. Cerri, 93 Ohio St. 345, 112 N.E. 1037, 1040, L.R.A.
1917A, 486; Aldersley v. McCloud, 35 Cal.App. 17,
168 P. 1153, 1155.
MORGANATIC-MARRIAGE. See Marriage.
MORGANGINA, or MORGANGIVA. A gift on
the morning after the wedding; dowry; the hus-
band's gift to his wife on the day after the wed-
ding. Du Cange; Cowell.
MORGEN. Anglo-Dutch. In old New York law,
a measure of land, equal to about two acres.
MORGUE. A place where the bodies of persons
found dead are kept for a limited time and exposed
to view, to the end that their friends may identify
them.
MORMON. A member of the Church of Jesus
Christ of Latter-day Saints. The Church was or-
ganized in 1830 at Seneca, New York, by Joseph
Smith, and today its headquarters are in Salt Lake
City, Utah.
MORON. One whose intellectual development pro-
ceeds normally up to about the 8th year of age,
then is arrested, and never exceeds that of a nor-
mal child of about 12 years. - People v. Joyce, 233
N.Y. 61, 134 N.E. 836, 840.
MORPHINOMANIA, or MORPHINISM. The opi-
um habit. An excessive desire for morphia.
MORRIS PLAN COMPANY. An industrial bank
which accepts money from the public for invest-
ment in "investment certificates" which draw in-
terest periodically payable to the investor, and
which bank lends money principally to steadily
employed salaried people who are required to
secure repayment with the endorsement of two
other employed salaried people, the contract calling
for installment payments over a one year period.
Other secured loans are also made. Board of
Com'rs of Tulsa County v. Remedial Finance Cor-
poration, 186 Okl. 648, 100 P.2d 240, 242.
MORS. Lat. Death. State v. Logan, 344 Mo. 351,
126 S.W.2d 256, 259, 122 A.L.R. 417.
MORS DICITUR ULTIMUM SUPPLICIUM. Death
is called the "last punishment," the "extremity of
punishment." 3 Inst. 212.
MORS OMNIA SOLVIT. Death dissolves all
things. Jenk.Cent. p. 160, case 2. Applied to the
case of the death of a party to an action.
MORSELLUM, or MORSELLUS, TERRIE. In old
English law, a small parcel or bit of land.
MORT CIVILE, In French law, civil death, as
upon conviction for felony.
It was nominally abolished by a law of the 31st of May,
1854, but something very similar to it, in effect at least,
still remains. Thus, the property of the condemned, pos-
sessed by him at the date of his conviction, goes and be-
longs to his successors, (hOritiers,) as in case of an intes-
tacy; and his future acquired property goes to the state
by right of its prerogative, (par droit de desUrence,) but
the state may, as a matter of grace, make it over in whole
or in part to the widow and children. Brown.
MORT D'ANCESTOR. An ancient and now almost
obsolete remedy in the English law. An assize of
mort d'ancestor was a writ which lay for a person
whose ancestor died seised of lands in fee-simple,
and after his death a stranger abated; and this
writ directed the sheriff to summon a jury or as-
size, who should view the land in question and rec-
ognize whether such ancestor were seised thereof
on the day of his death, and whether the demand-
ant were the next heir.
MORTAL. Destructive to life; causing or occa-
sioning death; exposing to or deserving death, es-
pecially spiritual death; deadly; fatal; as, a mor-
tal wound, State v. Logan, 344 Mo. 351, 126 S.W.2d
256, 259, 122 A.L.R. 417; or mortal sin; of or per-
taining to time of death. State v. Baker, 122 Kan.
552, 253 P. 221, 223.
MORTALITY. This word, in its ordinary sense,
never means violent death, but death arising from
natural causes. Lawrence 'v. Aberdein, 5 Barn. &
Ald. 110.
MORTALITY TABLES. A means of ascertaining
the probable number of years any man or woman
of a given age and of ordinary health will live.
Butler v. Butler, 180 Minn. 134, 230 N.W. 575, 579.
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MORTGAGE
MORTGAGE. An estate created by a conveyance
absolute in its form, but intended to secure the
performance of some act, such as the payment of
money, and the like, by the grantor or some other
person, and to become void if the act is performed
agreeably to the terms prescribed at the time of
making such conveyance. 1 Washb.Real Prop.
*475.
A conditional conveyance of land. Mitchell v.
Burnham, 44 Me. 299.
A transfer of property passing conditionally as
security for debt. Potter v. Vernon, 129 Okl. 251,
264 P. 611, 613.
A debt by specialty, secured by a pledge of lands,
of which the legal ownership is vested in the credi-
tor, but of which, in equity, the debtor and those
claiming under him remain the actual owners, un-
til debarred by judicial sentence or their own lach-
es, Coote, Mortg. 1.
The foregoing definitions are applicable to the
common-law conception of a mortgage. But in
many states in modern times, it is regarded as a
mere lien, and not as creating a title or estate.
Zeigler v. Sawyer, Tex.Civ.App., 16 S.W.2d 894,
896. It is a pledge or security of particular prop-
erty for the payment of a debt or the performance
of some other obligation, whatever form the trans-
action may take, but is not now regarded as a con-
veyance in effect, though it may be cast in the
form of a conveyance. Muth v. Goddard, 28 Mont.
237, 72 P. 621, 98 Am.St.Rep. 553; Johnson v. Rob-
inson, 68 Tex. 399, 4 S.W. 625; Killebrew v. Hines,
104 N.C. 182, 10 S.E. 159, 17 Am.St.Rep. 672;
Stockel v. Elich, 297 P. 595, 597, 112 Cal.App. 588;
In re Morgan, D.C.N.J., 39 F.2d 489, 490.
Chattel mortgage. A mortgage of goods, chat-
tels, or personal property. See Chattel Mortgage.
Conventional mortgage. The conventional mort-
gage is a contract by which a person binds the
whole of his property, or a portion of it only, in
favor of another, to secure the execution of some
engagement, but without divesting himself of pos-
session. Civ.Code La. art. 3290; Succession of Ben-
jamin, 39 La.Ann. 612, 2 So. 187. It is distin-
guished from the "legal" mortgage, which is a
privilege which the law alone in certain cases gives
to a creditor over the property of his debtor, with-
out stipulation of the parties. This last is very
much like a general lien at common law, created by
the law rather than by the act of the parties, such
as a judgment lien.
Equitable mortgage. A specific lien upon real
property to secure the payment of money or the
performance of some other obligation, which a
court of equity will recognize and enforce, in ac-
cordance with the clearly ascertained intent of the
parties to that effect, but which lacks the essential
features of a legal mortgage, either because it
grows out of the transactions of the parties with-
out any deed or express contract to give a lien,
or because the instrument used for that purpose
Is wanting in some of the characteristics of a
common-law mortgage, or, being absolute in form,
is accompanied by a collateral reservation of a
right to redeem, or because an explicit agreement
to 'Wy e a mortgage has not been . carried into effect.
4 Kent, Comm. 150; 2 Story, Eq.Jur. § 1018;
Ketchum v. St. Louis, 101 U.S. 306, 25 L.Ed. 999;
Gessner v. Palmateer, 89 Cal. 89, 26 P. 789, 13
L.R.A. 187.
In English law, the following mortgages are equitable:
(1) Where the subject of a mortgage is trust property,
which security is effected either by a formal deed or a
written memorandum, notice being given to the trustees
in order to preserve the priority. (2) Where it is an equity
of redemption, which is merely a right to bring an action
in the chancery division to redeem the estate. (3) Where
there is a written agreement only to make a mortgage,
which creates an equitable lien on the land. (4) Where a
debtor deposits the title-deeds of his estate with his
creditor or some person on his behalf, without even a
verbal communication. The deposit itself is deemed evi-
dence of an executed agreement or contract for a mortgage
for such estate. Wharton.
First mortgage. The first (in time or right) of a
series of two or more mortgages covering the same
property and successively attaching as liens upon
it; also, in a more particular sense, a mortgage
which is a first lien on the property, not only as
against other mortgages, but as against any other
charges or incurnbrances. Green's Appeal, 97 Pa.
347.
First mortgage bonds. Bonds the payment of
which is secured by a first mortgage on property.
Bank of Atchison County v. Byers, 139 Mo. 627, 41
S.W. 325; Corn. v. Williamstown, 156 Mass. 70, 30
N.E. 472.
General mortgage. Mortgages are sometimes
classified as general and special, a mortgage of
the former class being one which binds all prop-
erty, present and future, of the debtor (sometimes
called a "blanket" mortgage) ; while a special
mortgage is limited to certain particular and speci-
fied property. Barnard v. Erwin, 2 Rob., La., 415.
Judicial mortgage. In the law of Louisiana, the
lien resulting from judgments, whether rendered
on contested cases or by default, whether final or
provisional, in favor of the person obtaining them.
Civ.Code La. art. 3321.
Legal mortgage. A term used in Louisiana.
The law alone in c , rtain cases gives to the credi-
tor a mortgage on the property of his debtor, with-
out it being requisite that the parties should stipu-
late it. This is called "legal mortgage." Civ.Code
La. art. 3311.
Mortgage of goods. A conveyance of goods in
gage or mortgage by which the whole legal title
passes conditionally to the mortgagee; and, if the
goods are not redeemed at the time stipulated, the
title becomes absolute in law, although equity will
interfere to compel a redemption. It is distin-
guished from a "pledge" by the circumstance that
possession by the mortgagee is not or may not be
essential to create or to support the title. Story,
Bailm. § 287. See Chattel Mortgage.
Purchase-money mortgage. A mortgage given,
concurrently with a conveyance of land, by the
vendee to the vendor, on the same land, to secure
the unpaid balance of the purchase price. Baker v.
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MORTUUS
Clepper, 26 Tex. 629, 84 Am.Dec. 591; Keefe v.
Cropper, 196 Iowa 1179, 194 N.W. 305, 306; Ladd
& Tilton Bank v. Mitchell, 93 Or. 668, 184 P. 282,
284, 6 A.L.R. 1420.
Second mortgage. One which takes rank im-
mediately after a first mortgage on the same prop-
erty, without any intervening liens, and is next
entitled to satisfaction out of the proceeds of the
property. Green's Appeal, 97 Pa. 347. Properly
speaking, however, the term designates the second
of a series of mortgages, not necessarily the second
lien. For instance, the lien of a judgment might
intervene between the first and second mortgages;
in which case, the second mortgage would be the
third lien.
Tacit mortgage. In Louisiana, the same as a
"legal" mortgage. See supra.
Welsh mortgage. In English law, a species of
security which partakes of the nature of a mort-
gage, as there is a debt due, and an estate is given
as security for the repayment, but differs from it
in the circumstances that the rents and profits are
to be received without account till the principal
money is paid off, and there is no remedy to en-
force payment, while the mortgagor has a per-
petual power of redemption. It is now rarely used.
1 Pow.Mortg. 373a; Bentley v. Phelps, 3 F.Cas.
250.
MORTGAGE POOLS. Groups of mortgages. In
re D'Happart's Estate, 132 Pa.Super. 326, 200 A.
927, 929.
MORTGAGEE. He that takes or receives a mort-
gage.
MORTGAGEE IN POSSESSION. A mortgagee of
real property who is in possession of it with the
agreement or assent of the mortgagor, express
or implied, and in recognition of his mortgage and
because of it, and under such circumstances as
to make the satisfaction of his lien an equitable
prerequisite to his being dispossessed. Rogers v.
Benton, 39 Minn. 39, 38 N.W. 765, 12 Am.St.Rep.
613; Stouffer v. Harlan, 68 Kan. 135, 74 P. 610,
64 L.R.A. 320.
MORTGAGOR. One who, having all or some part
of title to property, by written instrument pledges
that property for some particular purpose such
as security for a debt. Goodell v. Silver Creek Nat.
Bank, Sup., 48 N.Y.S.2d 572, 576.
MORTH. Sax. Murder, answering exactly to the
French "assassinat" or "muertre de guet-apens."
MORTHLAGA. A murderer. Cowell.
MORTHLAGE. Murder. Cowell.
MORTIFICATION. In Scotch law, a term nearly
synonymous with "mortmain." Bell. Lands are
said to be mortified for a charitable purpose.
MORTIS CAUSA. Lat. By reason of death; in
contemplation of death. Thus used in the phrase
"Donatio mortis causa," (q. v.).
MORTIS MOMENTUM EST ULTIMUM VITAE
MOMENTUM. The last moment of life is the
moment of death. Terrill v. Public Adm'r, 4 Bradf.
Sur., N.Y., 245, 250.
MORTMAIN. A term applied to denote the aliena-
tion of lands or tenements to any corporation, sole
or aggregate, ecclesiastical or temporal. These
purchases having been chiefly made by religious
houses, in consequence of which lands became per-
petually inherent in one dead hand, this has oc-
casioned the general appellation of "mortmain" to
be applied to such alienations. 2 Bl.Comm. 268;
Co.Litt. 2b; Perin v. Carey, 24 How. 495, 16 L.Ed.
701.
MORTMAIN ACTS. These acts had for their ob-
ject to prevent lands getting into the possession or
control of religious corporations, or, as the name
indicates, in mortua mane. After numerous prior
acts dating from the reign of Edward I., it was
enacted by the statute 9 Geo. II. c. 36, (called the
"Mortmain Act" par excellence), that no lands
should be given to charities unless certain requi-
sites should be observed. Brown. Yates v. Yates,
9 Barb., N.Y., 324.
MORTON TOE. "Morton toe" is neuralgia of the
fourth toe. State v. Armstrong, 38 Idaho 493, 225
P. 491, 493, 33 A.L.R. 835.
MORTUARY. In ecclesiastical law, a burial-place.
Modern term applied to undertaking and em-
balming establishments.. City of Tucson v. Ari-
zona Mortuary, 34 Ariz. 495, 272 P. 923, 924.
A kind of ecclesiastical heriot, being a customary
gift of the second best living animal belonging to
the deceased, claimed by and due to the minister
in many parishes, on the death of his parishioners,
whether buried in the church-yard or not. 2 Bl.
Comm. 425. Ayrton v. Abbott, 14 Q.B. 19.
It has been sometimes used in a civil as well as
in an ecclesiastical sense, and applied to a payment
to the lord of the fee. Paroch.Antiq. 470.
MORTUARY TABLES. Tables for estimating the
probable duration of the life of a party at a given
age. Gallagher v. Market St. Ry. Co., 67 Cal. 16,
6 P. 871, 51 Am.Rep. 680.
MORTUUM VADIUM. A dead pledge; a mort-
gage (q. v.) ; a pledge where the profits or rents
of the thing pledged are not applied to the pay-
ment of the debt.
MORTUUS. Lat. Dead. So in sheriff's return.
mortuus est, he is dead.
MORTUUS CIVILITER. Civil death.
This incident attended every attainder of treason or oth-
er felony, whereby in the language of Lord Coke the at-
tainted person "is disabled to bring any action, for he is
extra legem mortuus"; Co.Litt. 199. He could be heard
in court only for the direct purpose of reversing the at-
tainder, and not in prosecution of a civil right; 1 B. & A.
159. He could be grantor or grantee after attainder, and
the grant would be good against all persons except the
king; Shepard, Touch. 231.
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MORTUUS
:MORTUUS EXITUS NON EST EXITUS. A dead
issue is no issue. Co.Litt. 29. A child born dead
is not considered as issue.
MORTUUS SINE PROLE. Dead without issue.
In genealogical tables often abbreviated to "m.
8. p.”
MOS RETINENDUS EST FIDELISSIMIE VET-
USTATIS. 4 Coke, 78. A custom of the truest
antiquity is to be retained.
MOSCOW INTERNATIONAL. See Third Interna-
tional.
MOSLEM LAW. One of the two great systems of
customary law which the English found in India.
It regulated the life and relations of all Moslems,
and parts of it, especially its penal provisions, were
applied to both Moslems and Hindus. Bryce, Ex-
tension of the Law.
MOST FAVORED NATION CLAUSE. A clause
found in most treaties providing that the citizens
or subjects of the contracting states may enjoy the
privileges accorded by either party to those of the
most favored nations. It is said that the general
design of such clauses is to establish the principle
of equality of international treatment. The test
of whether this principle is violated by the conces-
sion of advantages to a particular nation is, not
the form in which such concession is made, but
the condition on which it is granted; whether it
is given for a price, or whether this price is in
the nature of a substantial equivalent, and not of
a mere evasion. The United States has always tak-
en the stand that reciprocal commercial conces-
sions are given for a valuable consideration and
are not within the scope of this clause. Whitney
v. Robertson, 124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 386.
Great Britain has taken the opposite position.
See Consular Treaty Rights and Comments on
the "Most Favored Nation" Clause, by Ernest Lud-
wig; 3 Amer.Journ.Int.L. 57; Herod, Most Favored
Nation Treatment; Moore's Dig.Int.Law; 3 Amer.
Journ.Int.Law 395.
MOSTRENCOS. In Spanish law, strayed goods;
estrays. White, New Recop. b. 2, tit. 2, c. 6.
MOTE. Sax. A meeting; an assembly. Used in
composition, as burgmote, folkmote, etc.
MOTE-BELL. The bell which was used by the
Saxons to summon people to the court. Cowell.
MOTEER. A customary service or payment at the
mote or court of the lord, from which some were
exempted by charter or privilege. Cowell.
MOTHER. A woman who has borne a child.
Gardner v. Hall, 132 N.J.Eq. 64, 26 A.2d 799, 807.
A female parent, Guide Pub. Co. v. Futrell, 175
Va. 77, 7 S.E.2d 133, 138. Correlative to "son" or
"daughter." The term includes maternity during
prebirth period. Watson v. Independent Banner of
Love Soc., 54 Ga.App. 370, 187 S.E. 897, 898.
MOTHER-IN-LAW. The mother of one's wife or
of one's husband.
MOTION. Parliamentary law. The formal mode
in which a member submits a proposed measure
or resolve for the consideration and action of the
meeting.
Practice. Primarily an application for a rule or
order made viva voce to a court or judge, but the
term is generally employed with reference to all
such applications, whether written or oral. Irwin
v. Gilson Realty Co., 117 Fla. 394, 158 So. 77.
Special motion. A motion addressed to the dis-
cretion of the court, and which must be heard and
determined; as distinguished from one which may
be granted of course. Merchants' Bank v. Crysler,
Mo., 14 C.C.A. 444, 67 F. 390.
MOTION FOR DECREE. Under the chancery
practice, the most usual mode of bringing on a suit
for hearing when the defendant has answered is by
motion for decree. Hunter, Suit Eq. 59; Daniell,
Ch.Pr. 722.
MOTION FOR JUDGMENT. In English practice,
a proceeding whereby a party to an action moves
for the judgment of the court in his favor. S.Ct.
Rules 1883, ord. 40.
MOTION IN ARREST OF JUDGMENT. It is in-
tended to avoid judgment because of unamendable
defect appearing on record. Turner v. Shackle-
ford, 43 Ga.App. 271, 158 S.E. 439, 440.
MOTION IN ERROR. A motion in error stands
on the same footing as a writ of error; the only
difference is that, on a motion in error, no service
is required to be made on the opposite party, be-
cause, being before the court when the motion is
filed, he is bound to take notice of it at his peril.
Treadway v. Coe, 21 Conn. 283.
MOTION TO SET ASIDE JUDGMENT. This is a
step taken by a party ih an action who is dissatis-
fied with the judgment directed to be entered at
the trial of the action.
MOTIVE. Cause or reason that moves the will
and induces action. Commonwealth v. Trunk, 311
Pa. 555, 167 A. 333, 338. An inducement, or that
which leads or tempts the mind to indulge a crim-
inal act. People v. Lewis, 275 N.Y. 33, 9 N.E.2d
765, 768.
In the popular mind intent and "motive" are not in-
frequently regarded as one and the same thing. In law
there is a clear distinction between them. "Motive" is the
moving power which impels to action for a definite result.
Intent is the purpose to use a particular means to effect
such result. "Motive" is that which incites or stimulates
a person to do an act. People v. Weiss, 252 App.Div. 463,
300 N.Y.S. 249, 255.
MOTOR VEHICLE. In the Uniform Act Regulat-
ing Traffic on Highways, 11 U.L.A., and similar
statutes, any self-propelled "vehicle," defined as
including every device in, upon, or by which any
person or property is or may be transported or
drawn upon a highway, except devices moved by
human or muscular power or used exclusively up-
on stationary rails or tracks. The term "motor
vehicles," although sometimes regarded as synony-
mous with or limited to "automobiles," often has
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MOVING
a broader meaning, and includes not only ordinary
automobiles, but also motorbusses and trucks, as
well as motorcycles. Blashfield, Cyc. of Automo-
bile Law and Prac., Perm. Ed., § 2.
Motor vehicle insurance. See Insurance.
MOTORCYCLE. A bicycle propelled by a gasoline
engine located in the frame between the wheels.
Ellett v. Klein, C.C.A.Pa., 252 F. 805, 806, certio-
rari denied Harley-Davidson Motor Co. v. Ellett,
39 S.Ct. 8, 248 U.S. 563, 63 L.Ed. 423; Bonds v.
State, 16 Ga.App. 401, 85 S.E. 629, 630.
A motorcycle is not a "motor-driven car" as that term
is used in insurance policies. Generally, however, a motor-
cycle is included in the term "motor vehicle," although
under some statutes the words "automobile" and "motor-
cycle" are separately defined and the regulations and lia-
bilities with respect thereto differ in material ways.
Blashfleld, Cyc. of Automobile Law and Prac., Perm. Ed.,
§2.
MOTU PROPRIO. Lat. Of his own motion. The
commencing words of a certain kind of papal re-
script.
MOUNTINGS. Used in the Tariff Act of 1913, in
connection with optical instruments such as the mi-
croscope and polariscope, in the sense of acces-
sories, adjuncts, or parts thereof. U. S. v. Inter-
national Forwarding Co., 9 Ct.Cust.App. 156, 159.
MOURNING. The dress or apparel worn by
mourners at a funeral and for a time afterwards.
Also the expenses paid for such apparel.
As to "year of mourning," see that title.
MOUTH OF RIVER. By statute in some states,
the mouth of a river or creek, which empties into
another river or creek, is defined as the point
where the middle of the channel of each intersects
the other. Pol.Code Cal. § 3908; Rev.St.Ariz.1901,
par. 931, Rev.Code 1928, § 742.
MOVABLE. That which can be changed in place,
as movable property; or in time, as movable feasts
or terms of court. Goddard v. Winchell, 86 Iowa
71, 52 N.W. 1124, 17 L.R.A. 788.
MOVABLE ESTATE. A term equivalent to "per-
sonal estate" or "personal property." Den v.
Sayre, 3 N.J.L. 187.
MOVABLE FREEHOLD. A term applied by Lord
Coke to real property which is capable of being in-
creased or diminished by natural causes; as where
the owner of seashore acquires or loses land as the
waters recede or approach. Holman v. Hodges, 112
Iowa 714, 84 N.W. 950, 58 L.R.A. 673.
MOVABLES. Things movable; movable or per-
sonal chattels which may be annexed to or attend-
ant on the person of the owner, and carried about
with him from one part of the world to another.
2 Bl.Comm. 387.
Movables consist—First, of inanimate things, as goods,
plate, money, jewels, implements of war, garments, and
the like or vegetable productions, as the fruit or other
parts of a plant when severed from the body of it or the
whole plant itself when severed from the ground; second-
ly, of animals, which have in themselves a principle and
power of motion. 2 Steph.Comm. 67.
Movables are further distinguished into such as are in
possession, or which are in the power of the owner, as a
horse in actual use, a piece of furniture in a man's own
house; and such as are in the possession of another, and
can only be recovered by action, which are therefore said
to be in action, as a debt.
But it has been held that movable property, in a legacy,
strictly includes only such as is corporeal and tangible;
not, therefore, rights in action, as judgment or bond
debts; Strong v. White, 19 Conn. 238, 245; 1 Wm. Jones
225; but see Penniman v. French, 17 Pick., Mass., 404, 28
Am.Dec. 309; and that, in a will, "movables" is used in
its largest sense, but will not pass growing crops, nor
building materials on ground; Jackson v. Vanderspreigle,
2 Dall. 142, 1 L.Ed. 323.
Civil law. Movables (mobilia,) properly denoted
inanimate things; animals being distinguished as
moventia, things moving. Calvin. But these
words mobilia and moventia are also used synony-
mously, and in the general sense of "movables."
Id.
Scotch law. "Movables" are opposed to "heri-
tage." So that every species of property, and
every right a man can hold, is by that law either
heritable or movable. Bell.
MOVANT. One who moves; one who makes a
motion before a count; the applicant for a rule or
order.
MOVE. To make an application to a court for a
rule or order, or to take action in any matter.
To ask. Harris v. Chicago House-Wrecking Co.,
314 Ill. 500, 145 N.E. 666, 669. The term compre-
hends all things necessary to be done by a litigant
to obtain an order of the court directing the relief
sought. O'Hanion v. Great Northern Ry. Co., 76
Mont. 128, 245 P. 518, 519.
To propose a resolution, or recommend action
in a deliberate body.
To pass over; to be transferred; as when the
consideratictn of a contract is said to "move" from
one party to the other.
To occasion; to contribute to; to tend or lead to.
The forewheel of a wagon was said "to move to
the death of a man." Sayer, 249.
MOVE OUT. To vacate; to yield up possession.
Polich v. Severson, 68 Mont. 225, 216 R 785, 787.
MOVEMENT. In relating to train, the word
"movement" was not restricted to actual revolu-
tion of wheels of train or locomotive engaged in
interstate commerce, but could apply to a train
tied up on a siding. Great Northern Ry. Co. v.
United States, C.C.A.Idaho, 211 F. 309, 312. Simi-
larly, as regards vehicles, the term could compre-
hend the control and management of vehicles,
including power to require that motor be closed
down when a motor vehicle was left on street.
White v. District of Columbia, 55 App.D.C. 197, 4
F.2d 163, 164.
MOVENT. An alternative spelling of movant.
MOVING FOR AN ARGUMENT. Making a mo-
tion on a day which is not motion day in virtue
of having argued a special case; used in the ex-
chequer after it became obsolete in the queen's
bench. Wharton,
•
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MOVING
MOVING PAPERS. Such papers as are made the
basis of some motion in court proceedings, e. g. a
bill in equity with supporting affidavits.
MOVING PICTURE SHOW. A place where mo-
tion pictures are exhibited for the purpose of pub-
lic amusement and entertainment. State v. Mor-
ris, 28 Idaho 599, 155 P. 296, 297, L.R.A.1916D,
573.
MRS. Title of courtesy prefixed to name of woman
to indicate that she has been married. Guide Pub.
Co. v. Futrell, 175 Va. 77, 7 S.E.2d 133, 138.
MUCIANA CAUTIO. See Cautio.
MUEBLES. In Spanish law, movables; all sorts
of personal property. White, New Recop. b. 1, tit.
3, c. 1, § 2.
MUFFLER. Any of various devices to deaden the
noise of escaping gases or vapors, such as a tube
filled with obstructions, through which the exhaust
gases of an internal combustion engine, as an au-
tomobile, are passed (called also a silencer), or an
attachment usually consisting of a series of per-
forated baffles for a locomotive pop safety valve.
Hines v. Foreman, Tex.Com.App., 243 S.W. 479,
484.
MUGGLE; MUGGLE HEADS. Marihuana is
popularly known among the criminal element as
"muggles" or "mooter," and addicts are commonly
termed "muggle heads." State v. Navaro, 83
Utah, 6, 26 P.2d 955.
MUIRBURN. In Scotch law, the offense of set-
ting fire to a muir or moor. 1 Brown, Ch. 78, 116.
MULATTO. A person that is the offspring of a
negress by a white man, or of a white woman by
a negro. Thurman v. State, 18 Ala. 276. In a
more general sense, a person of mixed Caucasian
and negro blood, or Indian and negro blood. Web-
ster, Dict. See, also, Mustizo.
Properly a mulatto is a person one of whose parents is
wholly black and the other wholly white ; but the word
does not always, though perhaps it does generally, re-
quire so exactly even a mixture of blood, nor is its
signification alike in all the states. 1 Bish.Mar. & D. § 308.
MULCT. A penalty or punishment imposed on a
person guilty of some offense, tort, or misdemean-
or, usually a pecuniary fine or condemnation in
damages. Cook v. Marshall County, 119 Iowa 384,
93 N.W. 372, 104 Am.St.Rep. 283. A forfeit, fine,
or penalty. Kleinath, Schuster & Hudson v. Reed,
18 N.M. 358, 137 P. 841, 844. To sentence to a pe-
cuniary penalty or forfeiture as a punishment;
fine; hence to fine unjustly; to punish. Gorton
v. Doty, 57 Idaho 792, 69 P.2d 136, 142.
Formerly, an imposition laid on ships or goods
by a company of trade for the maintenance of
consuls and the like.
MULCTA DAMNUM FAME NON IRROGAT.
Cod. 1, 54; Calvin. A fine does not involve loss
of character.
MULE. A hybrid between the horse and the ass;
especially, the offspring of a male ass and a mare.
Webster, Diet.
MULIER. Lat. A woman; a wife; a widow; a
virgin; a legitimate child. 1 Inst. 243; Co.Litt.
170, 253; 2 Bla.Com. 248.
The term is used always in contradistinction to
a bastard, mulier being always legitimate. Co.
Litt. 243.
MULIER PUISNE. L. Fr. When a man has a
bastard son, and afterwards marries the mother,
and by her has also a legitimate son, the elder son
is bastard eignó., and the younger son is mulier
puisnd.
MULIERATUS. A legitimate son. Glanvil.
MULIERTY. In old English law, the state or
condition of a mulier, or lawful issue. Co.Litt.
352b. The opposite of bastardy. Blount.
MULTA. A fine or final satisfaction, anciently
given to the king by the bishops, that they might
have power to make their wills, and that they
might have the probate of other men's wills, and
the granting of administration. 2 Inst. 291. Call-
ed, also, multura episcopi.
A fine imposed ex arbitrio by magistrates on
the prcesides probinciarum. Inst. 4, 1.
MULTA CONCEDUNTUR PER OBLIQUUM
QUIE NON CONCEDUNTUR DE DIRECTO.
Many things are allowed indirectly which are not
allowed directly. 6 Coke, 47.
MULTA FIDEM PROMISSA LEVANT. Many
promises lessen confidence. Brown v. Castles, 11
Cush. (Mass.) 350.
MULTA IGNORAMUS QUIE NOBIS NON LAT-
ERENT SI VETERUM LECTIO NOBIS FUIT
FAMILIAR'S. 10 Coke, 73. We are ignorant of
many things which would not be hidden from us
if the reading of old authors was familiar to us.
MULTA IN JURE COMMUNI CONTRA RA-
TIONEM DISPUTANDI, PRO COMMUNI UTIL-
ITATE INTRODUCTA SUNT. Many things have
been introduced into the common law, with a view
to the public good, which are inconsistent with
sound reason. Co.Litt. 70b; Broom, Max. 158;
2 Co. 75. See 3 Term 146; 7 id. 252.
MULTA MULTO EXERCITATIONE FACILIUS
QUAM REGULIS PERCIPIES. 4 Inst. 50. You
will perceive many things much more easily by
practice than by rules.
MULTA NON VETAT LEX, QUIE TAMEN TACI-
TE DAMNAVIT. The law forbids not many
things which yet it has silently condemned.
MULTA TRANSEUNT CUM UNIVERSITATE
QUIE NON PER SE TRANSEUNT. Many things
pass with the whole which do not pass separately.
Co.Litt. 12a.
MULTI MULTA, NEMO OMNIA NOVIT. 4 Inst.
348. Many men have known many things; no one
has known everything.
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MUMMIFICATION
MULTIFARIOUSNESS. Equity pleading. The
misjoinder of causes of action in a bill. Van Ant-
werp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73, 77.
The fault of improperly joining in one bill distinct and
independent matters, and thereby confounding them; as,
for example, the uniting in one bill of several matters per-
fectly distinct and unconnected against one defendant
(more commonly called misjoinder of claims), or the de-
mand of several matters of a distinct and independent na-
ture against several defendants, in the same bill. Stork,
Eq.P1. § 271; Essen v. Adams, 342 Mo. 1196, 119 S.W.2d
773, 777, 118 A.L.R. 1393.
"Multifariousness" as to matter consists in uniting in
the same bill distinct and disconnected subjects, matters,
or causes, and "multifariousness" as to parties consists in
joining in same suit parties who are without a common in-
terest in subject of litigation and have no connection with
each other. Essen v. Adams, 342 Mo. 1196, 119 S.W.2d 773,
777, 118 A.L.R. 1393.
The joining of distinct and independent matters, each of
which would constitute a cause of action. Otto F. Stifel's
Union Brewing Co. v. Weber, 194 Mo.App. 605, 186 S.W.
1119, 1122; Johnson v. Benbow, 93 Fla. 124, 111 So. 504,
507.
"Multifariousness" abstractly is incapable of an accurate
definition, but includes those cases where a party is
brought as a defendant on a record with a large portion
of which, and, in the case made by which, he has no con-
nection whatever. Stamey v. Fortner; 230 Ala. 204, 160
So. 116.
The vice of multifariousness is the union of causes of ac-
tion which, or of parties whose .claims, it is either im-
practical or inconvenient to adjudicate in a single suit.
Where it is as practical and convenient for court and par-
ties to deal with the claims, and parties joined, in one suit
as in many, there is no multifariousness. Westinghouse
Air Brake Co. v. R. Co., C.C.A.Mo., 71 C.C.A. 1, 137 F. 26;
Schell v. Leander Clark College, C.C.A.Iowa, 2 F.2d 17, 21.
And it is not essential that every defendant have an inter-
est in or concern for all matters or phases of the contro-
versy. Mitchell v. Cudd, 196 Ala. 162, 71 So. 660; Norfolk
Southern R. Co. v. Stricklin, D.C.N.C., 264 F. 546, 555.
A bill is not multifarious which seeks alternative or in-
consistent relief growing out of the same subject-matter
or founded on the same contract or transaction, or relating
to the same property between the same parties. Code Ala.
§ 3095, Code 1923, § 6526; Szabo v. Speckman, 73 Fla. 374,
74 So. 411, 412, L.R.A. 1917D, 357.
Legislation. The joining, in a single legislative
act, of dissimilar and discordant subjects, which,
by no fair intendment, can be considered as having
a legitimate connection or relation to the subject
of the act. Boise City v. Baxter, 41 Idaho 368, 238
P. 1029, 1033.
MULTIPARTITE. Divided into many or several
parts.
MULTIPLE EVIDENCE. That which is admissi-
ble for a specific purpose to which it must be con-
fined and inadmissible to prove a different fact.
Green v. Atlantic Coast Line R. Co., 136 S.C. 337,
134 S.E. 385, 386.
MULTIPLE POINDING. In Scotch law, double
distress; a name given to an action, corresponding
to proceedings by way of interpleader, which may
be brought by a person in possession of goods
claimed by different persons pretending a right
thereto, calling the claimants and all others to
settle their claims, so that the party who sues may
be liable only "in once and single payment." Bell.
MULTIPLEX ET INDISTINCTUM PARIT CON.
FUSIONEM; ET QUZESTIONES, QUO SIM-
PLICIORES, EO LUCIDIORES. Hob. 335. Mul-
tiplicity and indistinctness produce confusion;
and questions, the more simple they are, the more
lucid.
MULTIPLICATA TRANSGRESSIONE CRESCAT
PCENIE INFLICTIO. As transgression is multi-
plied, the infliction of punishment should increase.
2 Inst. 479.
MULTIPLICITY. A state of being many. That
quality of a pleading which involves a variety of
matters or particulars; undue variety. 2 Saund.
410. A multiplying or increasing. Story, Eq.P1.
§ 287.
MULTIPLICITY OF ACTIONS, or SUITS. Num-
erous and unnecessary attempts to litigate the
same right. A phrase descriptive of the state of
affairs where several different suits or actions are
brought upon the same issue. The actions must be
against a single defendant. Prospect Park & C. I.
R. Co. v. Morey, 155 App.Div. 347, 140 N.Y.S. 380,
385; Williams v. Millington, 1.  H.B1. 81.
MULTITUDE. An assemblage of many people.
According to Coke it is not a word of very pre-
cise meaning; for some authorities hold that there
must be at least ten persons to make a multitude,
while others maintain that no definite number is
fixed by law. Co.Litt. 257. Two cannot consti-
tute a multitude. Pike v. Witt, 104 Mass. 595.
Three or more constitute. State v. Earp, '196 N.C.
164, 145 S.E. 23, 25.
MULTITUDINEM DECEM FACIUNT. Co.Litt.
257. Ten make a multitude.
MULTITUDO ERRANTIUM NON PARIT ER-
RORI PATROCINUM. The multitude of those
who err furnishes no countenance or excuse for
error. 11 Coke, 75a. It is no excuse for error
that it is entertained by numbers.
MULTITUDO IMPERITORUM PERDIT CURIAM.
A great number of unskillful practitioners ruins
a court. 2 Inst. 219.
MULTO. In old records, a wether sheep.
MULTO UTILIUS EST PAUCA IDONEA EF-
FUNDERE QUAM MULTIS INUTILIBUS HOM-
INES GRAVARI. 4 Coke, 20. It is more useful
to pour forth a few useful things than to oppress
men with many useless things.
MULTURA EPISCOPI. See Multa.
MULTURE. In Scotch law, the quantity of grain
or meal payable to the proprietor of a mill, or to
the multurer, his tacksman, for manufacturing
the corns. Ersk.Inst. 2, 9, 19.
MUMMIFICATION. In medical jurisprudence,
the complete drying up of the body as the result
of burial in a dry, hot soil, or the exposure of the
body to a dry, cold atmosphere. 15 Amer. & Eng.
Enc. Law, 261.
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1111131311NG
MUMMING. Antic diversions in the Christmas.,
holidays, suppressed in Queen Anne's time.
MUND. In old English law, peace; whence mund-
bryc, a breach of the peace.
MUNDBYRD, MUNDEBURDE. A receiving into
favor and protection. Cowell.
MUNDIUM. In old French law, a tribute paid by
a church or monastery to their seignorial avouês
and vidames, as the price of protecting them.
Steph.Lect. 236.
MUNERA. In the early ages of the feudal law,
the name given to the grants of land made by a
king or chieftain to his followers, which were held
by no certain tenure, but merely at the will of the
lord. Afterwards they became life-estates, and
then hereditary, and were called first "benefices,"
and then "feuds." See Wright, Ten. 19.
MUNICEPS. Lat. In Roman Law, eligible to of-
fice. A provincial person; a countryman. This
was the designation of one born in the provinces
or in a city politically connected with Rome, who
had come to Rome, and though a Roman citizen,
yet was looked down upon as a provincial, and
not allowed to hold the higher offices.
In the provinces the term seems to have been
applied to the freemen of any city who were eligi-
ble to the municipal offices. Calvin.
MUNICIPAL. In narrower sense, it means per-
taining to a local governmental unit, commonly, a
city or town or other governmental unit. In its
broader sense, it means pertaining to the public
or governmental affairs of a state or nation or of
a people. Chadwick v. City of Crawfordsville, 216
Ind. 399, 24 N.E.2d 937, 941, 942, 129 A.L.R. 469.
Sometimes, pertaining to a county. State ex rel.
Schneider v. Midland Investment & Finance Cor-
poration, 219 Wis. 161, 262 N.W. 711, contra, State
ex rel. City of Missoula v. Holmes, 100 Mont. 256,
47 P.2d 624, 628, 100 A.L.R. 581; local, particular,
independent; Horton v. Mobile School Com'rs,
43 Ala. 598; also, pertaining to local self-govern-
ment in general; Woodward v. Livermore Falls
Water Dist., 116 Me. 86, 100 A. 317, 319, L.R.A.
1917D, 678.
Relating to a state or nation, particularly when
considered as an entity independent of other
states or nations. Hammel v. Little, 66 App.D.C.
356, 87 F.2d 907, 910.
Among the Romans, cities were called municipia; these
cities voluntarily joined the Roman republic in relation to
their sovereignty only, retaining their laws, their liberties,
and their magistrates, who were thence called municipal
magistrates. With us this word has a more extensive
meaning : for example, we call municipal law not the law
of a city only, but the law of the state. 1 Bla.Comm. 44.
MUNICIPAL ACTION. Exercise of governmental
power by a municipality. Orme v. Atlas Gas &
Oil Co., 217 Minn. 27, 13 N.W.2d 757, 761.
MUNICIPAL AFFAIRS. A term referring to the
internal business affairs of a municipality. Grif-
fin v. City of Los Angeles, 134 Cal.App. 763, 26 P.
2d 655.
The term is frequently used in constitutional and statu-
tory provisions concerning the power to legislate as to the
concerns of municipalities. City of Los Angeles v. Central
Trust Co. of New York, 173 Cal. 323, 159 P. 1169, 1171;
State v. Cummings, 47 Okl. 44, 147 P. 161, 163. And it has
come to include public service activities, such as supplying
water to the inhabitants, the construction of a reservoir
for their benefit, the sale and distribution of electrical
energy, and the establishment and operation of transpor-
tation service, which were once regarded as being of a
strictly private nature. In re Bonds of Orosi Public Utili-
ty Dist., 196 Cal. 43, 235 P. 1004, 1010.
MUNICIPAL AID. A contribution or assistance
granted by a municipal corporation towards the
execution or progress of some enterprise, under-
taken by private parties, but likely to be of bene-
fit to the municipality; e. g., a railroad.
MUNICIPAL AUTHORITIES. As used in stat-
utes contemplating the consent of such authori-
ties, the term means the consent by the legisla-
tive authorities of the city acting by ordinance;
Holland Realty & Power Co. v. City of St. Louis,
282 Mo. 180, 221 S.W. 51, 53, for example, in a
town, the members of the town board; Farnsworth
v. Boro Oil & Gas Co., 216 N.Y. 40, 109 N.E. 860.
MUNICIPAL BONDS. Evidences of indebtedness
issued by cities or other corporate public body, ne-
gotiable in form, payable at designated future
time, and intended for sale in market with object
of raising money for municipal expense, which is
beyond immediate resources of reasonable taxa-
tion, as distinguished from temporary evidences
of debt, such as vouchers, certificates of indebted-
ness, orders, or drafts drawn by one officer on an-
other and similar devices for liquidating current
obligations in anticipation of collection of taxes.
City of Stamford v. Town of Stamford, 107 Conn.
596, 141 A. 891, 896.
MUNICIPAL CHARTER. A legislative enact-
ment conferring governmental powers of the state
upon its local agencies. State v. Thompson, 193
Ala. 561, 69 So. 461, 464.
MUNICIPAL CLAIMS. In Pennsylvania law,
claims filed by a city against property owners
therein, for taxes, rates, levies, or assessments for
local improvements, such as the cost of grading,
paving, or curbing the streets, or removing nui-
sances.
MUNICIPAL CORPORATION. A public corpo-
ration, created by government for political pur-
poses, and having subordinate and local powers
of legislation. 2 Kent, Comm. 275; Bonaparte v,
Camden & A. R. Co., Baldw. 222, F.Cas.No.1617.
An incorporation of persons, inhabitants of a
particular place, or connected with a particular
district, enabling them to conduct its local civil
government Glov.Mun.Corp. 1.
A legal institution formed by charter from sovereign
power erecting a populous community of prescribed area
into a body politic and corporate with corporate name and
continuous succession and for the purpose and with the au-
thority of subordinate self-government and improvement
and local administration of affairs of state. State v.
Cheyenne County, 127 Neb. 619, 256 N.W. 67.
A body corporate consisting of the inhabitants of a des,
ignated area created by the legislature with or without
the consent of such inhabitants for governmental purposes,
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MUNICIPAL OFFICER
possessing local legislative and administrative power, also
power to exercise within such area so much of the ad-
ministrative power of the state as may be delegated to it
and possessing limited capacity to own and hold property,
and to act in purveyance of public conveniences. Van Gil-
der v. City of Madison, 222 Wis. 58, 268 N.W. 108, 109.
Cities, towns, and villages are municipal corporations
proper. Strickfaden v. Green Creek Highway Dist., 42
Idaho 738, 248 P. 456, 458, 49 A.L.R. 1057. On the other
hand, such term in many instances does not extend so far
as to include counties; Hersey v. Nelson, 47 Mont. 132, 131
P. 30, 31, Ann.Cas.1914C, 963; or drainage districts;
Sawyer v. Camden Run Drainage Dist., 179 N.C. 182, 102
S.E. 273, 274; or irrigation districts; Crawford v. Imperial
Irr. Dist., 200 Cal. 318, 253 P. 726, 729; or road districts;
William T. Joyce Co. v. Police Jury of Parish of Tangipa-
hoa, 146 La. 322, 83 So. 587, 588; or school districts; Dick-
son v. Brewer, 180 N.C. 403, 104 S.E. 887, 889; nor does it
include the state; Herkimer Lumber Co. v. State, 196 App.
Div. 708, 189 N.Y.S. 119, 122; but see contra, as to the Dis-
trict of Columbia, Stoutenburgh v. Hennick, 129 U.S. 141,
9 S.Ct. 256, 32 L.Ed. 637. Nevertheless, it has been held in
other cases, often under different circumstances or in dif-
ferent contexts, that the term may include counties; Van
Hess v. Board of Com'rs of St. Joseph County, 190 Ind.
347, 129 N.E. 305, 307; and, in Louisiana, parishes; State
v. Hagen, 136 La. 868, 67 So. 935; drainage districts; State
v. Little River Drainage Dist., 291 Mo. 267, 236 S.W. 848,
849; irrigation districts; Peters v. Union Gap Irr. Dist.,
98 Wash. 412, 167 P. 1085, 1086; road districts; State ex
rel. Little Prairie Special Road Dist. of Pemiscot County
v. Thompson, 315 Mo. 56, 285 S.W. 57, 61; and the like;
Milheim v. Moffat-Tunnel Improvement Dist., 72 Colo.
268, 211 P. 649, 653; Drum v. University Place Water Dist.:
144 Wash. 585, 258 P. 505, 506.
English law. A body of persons in a town hav-
ing the powers of acting as one person, of holding
and transmitting property, and of regulating the
government of the town. Such corporations ex-
isted in the chief towns of England (as of other
countries) from very early times, deriving their
authority from "incorporating" charters granted
by the crown. Wharton.
Quasi municipal corporations. Bodies politic
and corporate, created for the sole purpose of
performing one or more municipal functions.
Woodward v. Livermore Falls Water Dist., 116 Me.
86, 100 A. 317, 319, L.R.A.1917D, 678.
Public corporations organized for governmental pur-
poses and having for most purposes the status and powers
of municipal corporations (such as counties, townships,
school districts, drainage districts, irrigation districts,
etc.), but not municipal corporations proper, such as
cities and incorporated towns. Snider v. St. Paul, 51 Minn.
466, 53 N.W. 763, 18 L.R.A. 151; Plumbing Supply Co. v.
Board of Education of Independent School Dist. of City
of Canton, 32 S.D. 270, 142 N.W. 1131, 432; Melin v.
Community Consol. School Dist. No. 76, 312 Ill. 376, 144
N.E. 13, 16.
MUNICIPAL CORPORATION DE FACTO. One
which exists when there is (1) some law under
which a corporation with the powers assumed
might lawfully have been created; (2) a colorable
and bona fide attempt to perfect an organization
under such a law; (3) user of the rights claimed
to have been conferred by the law. Evens v. An-
derson, 132 Minn. 59, 155 N.W. 1040, 1041.
MUNICIPAL CORPORATIONS ACT. In English
law, a general statute, (5 & 6 Wm. IV. c. 76,) pass-
ed in 1835, prescribing general regulations for the
incorporation and government of boroughs.
MUNICIPAL COURTS. In the judicial organiza-
tion of several states, courts are established un-
der this name, whose territorial authority is con-
fined to the city or community in which they are
erected. Such courts usually have a criminal ju-
risdiction corresponding to that of a police court,
and, in some cases, possess civil jurisdiction in
small causes. Ex parte Gownlock, 13 Okl.Cr. 293,
164 P. 130, 131.
MUNICIPAL DOMICILE. Sometimes used in
contradistinction to "national domicile" and "qua-
si national domicile" to refer to residence in a
county, township, or municipality; called also
"domestic domicile." Hayward v. Hayward, 65
Ind.App. 440, 115 N.E. 966, 970.
MUNICIPAL ELECTION. One at which munici-
pal officers are chosen. Hutchins v. City of Des
Moines, 176 Iowa, 189, 157 N.W. 881, 883. Compare
Johnson v. Luers, 129 Md. 521, 99 A. 710, 714.
MUNICIPAL FUNCTION. One created or grant-
ed for the special benefit and advantage of the
urban community embraced within the corporate
boundaries. State ex rel. Gebhardt v. City Coun-
cil of Helena, 102 Mont. 27, 55 P.2d 671, 673.
Sometimes called a private function, as distinguished
from a public or governmental function, which is one con-
ferred or imposed on the municipality as a local agency of
limited and prescribed jurisdiction to be employed in ad-
ministering the affairs of the state, and promoting the
public welfare generally. Bryan v. City of West Palm
Beach, 75 Fla. 19, 77 So. 627; Griffith v. City of Butte, 72
Mont. 552, 234 P. 829, 831.
Logically all those are strictly municipal functions which
specially and peculiarly promote the comfort, convenience,
safety and happiness of the citizens of the municipality,
rather than the welfare of the general public. Under this
class of functions are included, in most jurisdictions, the
proper care of streets and alleys, parks and other public
places, and the erection and maintenance of public utilities
and improvements generally. Chardkoff Junk Co. v. City
of Tampa, 102 Fla. 501, 135 So. 457, 459.
MUNICIPAL GOVERNMENT. Instrumentalities
of state for purpose of local government. Moore
v. State, 159 Tenn. 468, 19 S.W.2d 233.
This term, in certain state constitutions, embtaces the.
governmental affairs of counties; State v. Touchberry, 121
S.C. 5, 113 S.E. 345; and includes all forms of represen-
tative municipal government; In re Opinion of the Jus-
tices, 229 Mass. 601, 119 N.E. 778, 781.
MUNICIPAL LAW. Not the law of a city only
but the law of the state. People ex rel. Ray v.
Martin, 181 Misc. 925, 47 N.Y.S.2d 883, 891.
In contradistinction to international law, it is the law of
an individual state or nation. It is the rule or law by
which a particular district, community, or nation is gov-
erned. 1 Bl.Comm. 44. That which pertains solely to the
citizens and inhabitants of a state, and is thus distin-
guished from political law, commercial law, and the law
of nations. Wharton; City of Louisville v. Babb, C.C.A.
Ind., 75 F.2d 162, 165. In its more modern and narrower
connotation it means those laws which pertain to towns,
cities and villages and their local government. People ex
rel. Ray v. Martin, 294 N.Y. 61, 60 N.E.2d 541, 547; 548.
MUNICIPAL LIEN. A lien or claim existing in
favor of a municipal corporation against a prop-
erty owner for his proportionate, share of a public
improvement, made by the municipality, whereby
his property is specially and individually benefited.
MUNICIPAL OFFICER. One . who , holds an of-
fice of a municipality. Danculoyic . v, Zimmerman,
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MUNICIPAL ORDINANCE
184 Minn. 370, 238 N.W. 695. A city, town, or
borough;-not including a county. State v. Coo-
ney, 70 Mont. 355, 225 P. 1007, 1010, but the term
often bears a special .or limited sense, in which
it may not apply even to members of the city
council. Lambert v. Barrett, 115 Va. 136, 78 S.E.
586, 587, Ann.Cas.1914D, 1226.
MUNICIPAL ORDINANCE. A law, rule, or ordi-
nance enacted or adopted by a municipal corpora-
tion for the proper conduct of its affairs or the
government of its inhabitants. Rutherford v.
Swink, 96 Tenn. 564, 35 S.W. 554. Particularly
a regulation under a delegation of power from
the state. Harris v. City of Des Moines, 202 Iowa
53, 209 N.W. 454, 456, 46 A.L.R. 1429.
MUNICIPAL PURPOSES. Public or government-
al purposes as distinguished from private pur-
poses; Georgia Ry. & Power Co. v. City of Atlan-
ta, 154 Ga. 731, 115 S.E. 263, 271. It may compre-
hend all activities essential to the health, morals,
protection, and welfare of the municipality. State
ex rel. Harper v. McDavid, 145 Fla. 605, 200 So.
100, 102, 133 A.L.R. 360.
For example, the taking of land for a school; Byfield
v. City of Newton, 247 Mass. 46, 141 N.E. 658, 661; light-
ing the streets; City of Colorado Springs v. Pike's Peak
Hydro-Electric Co., 57 Colo. 169, 140 P. 921, 927; supply-
ing water to the inhabitants; Marin Water & Power Co. v.
Town of Sausalito, 168 Cal. 587, 143 P. 767, 772; The col-
lection and disposal of garbage and refuse; N. Ward Co.
v. Board of Street Com'rs of City of Boston, 217 Mass. 381,
104 N.E. 965, 966; or the building of a subway; In re
Montague Street in Borough of Brooklyn in City of New
York, 87 Misc. 120, 150 N.Y.S. 382, 385.
MUNICIPAL SECURITIES. The evidences of in-
debtedness issued by cities, towns, counties, town-
ships, school-districts, and other such territorial
divisions of a state. They are of two general
classes; (1) Municipal warrants, orders, or certifi-
cates; (2) municipal negotiable bonds. 15 Amer.
& Eng. Enc. Law, 1206.
MUNICIPAL TAXATION. Refers to municipal
purposes that are beneficial to municipality as a
whole. Klemm v. Davenport, 100 Fla. 627, 129
So. 904, 910, 70 A.L.R. 156.
This term may have reference to any tax collected by
the city tax collector, including state, county, and city or
town taxes. Boston Fish Market Corp. v. City of Boston,
224 Mass. 31, 112 N.E. 616.
MUNICIPAL WARRANTS. A municipal war-
rant or order is an instrument, generally in the
form of a bill of exchange, drawn by an officer
of a municipality upon its treasurer, directing
him to pay an amount of money specified therein
to the person named or his order, or to bearer.
15 Amer. & Eng. Enc. Law, 1206.
MUNICIPALITY. A legally incorporated or duly
authorized association of inhabitants of limited
area for local governmental or other public pur-
poses. State ex rel. Attorney General v. City of
Avon Park, 108 Fla. 641, 149 So. 409, 412.
A body politic created by the incorporation of the peo-
ple of a prescribed locality invested with subordinate pow-
ers of legislation to assist in the civil government of the
state and to regulate and administer local and internal af-
fairs of the community. State ex rel. McIntire v. City
Council of City of Libby, 107 Mont. 216, 82 P.2d 587, 588.
Though sometimes limited in its application to cities
only; City of Bangor v. Ridley, 117 Me. 297, 104 A. 230,
232; it ordinarily includes towns as well as cities of all
classes; Goodman Warehouse Corporation v. Jersey City,
102 N.J.L. 294, 132 A. 503, 506 ; and may on occasion in-
clude townships; Whittingham v. Milburn Tp., 90 N.J.L.
344, 100 A. 854; counties; Murphy v. Freeholders of Hud-
son, 91 N.J.L. 40, 102 A. 896; school districts; Scobee v.
Board of Education of Clark County, 157 Ky. 510, 163 S.W.
472, 473; and every kind and character of public corpora-
tions which are created by statute or the Constitution of
the state, and which are dependent for their support and
maintenance from taxes imposed and collected; Joint
School Dist. No. 132 in Major County and Alfalfa County
v. Dabney, 127 Okl. 234, 260 P. 486, 487. But neither
townships; Petition of Herrington, 266 Pa. 88, 109 A. 791,
793; nor school districts; Long v. School Dist. of Chelten-
ham Tp., 269 Pa. 472, 112 A. 545, 546; nor drainage dis-
tricts or the like are necessarily included; Witty v. Ells-
berry Drainage Dist., 126 Miss. 645, 89 So. 268, 270.
Also, the body of officers taken collectively, be-
longing to a city, who are appointed to manage
its affairs and defend its interests.
MUNICIPIUM. In Roman law, a foreign town to
which the freedom of the city of Rome was grant-
ed, and whose inhabitants had the privilege of en-
joying offices and honors there. Adams, Rom.
Ant. 47, 77. A free town which retained its orig-
inal right of self-government, but whose inhabi-
tants also acquired certain rights of Roman citi-
zens. Morey, Rom.L. 51.
MUNIMENT-ROUSE, or MUNIMENT-ROOM. A
house or room of strength, in cathedrals, collegi-
ate churches, castles, colleges, public buildings,
etc., purposely made for keeping deeds, charters,
writings, etc. 3 Inst. 170; Cowell.
MUNIMENTS. Documentary evidence of title.
Merrill v. Rocky Mountain Cattle Co., 26 Wyo. 219,
181 P. 964, 971. The instruments of writing and
written evidences which the owner of lands, pos-
sessions, or inheritances has, by which he is en-
abled to defend the title of his estate. Termes de
la Ley; 3 Inst. 170.
MUNITIONS OF WAR. In international law and
United States statutes, this term includes not only
ordnance, ammunition, and other material directly
useful in the conduct of a war, but also whatever
may contribute,to its successful maintenance, such
as military stores of all kinds and articles of food.
U. S. v. Sheldon, 2 Wheat. 119, 4 L.Ed. 199.
•
MUNUS. Lat. A gift; an office; a benefice or
feud. A gl&diatorial show or spectacle. Calvin.;
Du Cange.
MURAGE. A toll formerly levied in England for
repairing or building public walls.
MURAL MONUMENTS. Monuments made in
walls.
MURDER. The unlawful killing of a human be-
ing by another with malice aforethought, either
express or implied. State v. Hutter, 145 Neb. 798,
18 N.W.2d 203, 206.
The crime committed where a person of sound mind and
discretion (that is, of sufficient age to form and execute a
criminal design and not legally "insane") kills any human
creature in being (excluding quick but unborn children)
and in the peace of the state or nation (including all per-
sons except the military forces of the public enemy in time
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MUST
of war or battle) without any warrant, justification, or ex- .
cuse in law. with malice aforethought, express or implied,
that is, with a deliberate purpose or a design or determi-
nation distinctly formed in the mind before the commis-
sion of the act, provided generally that death results from
the injury inflicted within one year and a day after its
infliction. Kilpatrick v. Com., 31 Pa. 198; Hotema v. U.
S., 186 U.S. 413, 22 S.Ct. 895, 46 L. Ed. 1225; Clarke v.
State, 117 Ala. 1, 23 So. 671, 67 Am.St.Rep. 157.
The term implies a felonious homicide, while the word
"kill" does not necessarily mean any more than to deprive
of life, as a man may kill another by accident, or in self-
defense, and in many other ways, without the imputation
of crime. Pilcher v. State, 16 Ala.App. 237, 77 So. 75, 76.
For the distinction between murder and manslaughter
and other forms of homicide, see Homicide; Manslaughter.
Statutory Definitions. Murder is the unlawful killing of
a human being with malice aforethought. Pen.Code Cal.
§ 187; Arizona Code Ann.1939, § 43-2901, Pen.Code Ariz.
1901, § 172. Whoever kills any human being with malice
aforethought, either express or implied, is guilty of mur-
der. I.C.A. § 690.1. Murder is the unlawful killing of a
human being, in the peace of the State, by a person of
sound memory and discretion, with malice aforethought,
either express or implied. Georgia Code Ann. § 26-1002.
The killing of a human being, without the authority of
law, by any means, or in any manner shall be murder in
the following cases : When done with deliberate design to
effect the death of the person killed, or of any human be-
ing ; when done in the commission of an act eminently
dangerous to others, and evincing a depraved heart, re-
gardless of human life, although without any premeditated
design to effect the death of any particular individual;
when done without any design to effect death, by any
person engaged in the commission of the crime of rape,
burglary, arson, or robbery, or in any attempt to commit
such felonies. Mississippi Code 1942 § 2215. Every homi-
cide, perpetrated by poison, lying in wait, or any other
kind of willful, deliberate, malicious, and premeditated
killing; or committed in the perpetration of, or the at-
tempt to perpetrate, any arson, rape, robbery, or burglary;
or perpetrated from a premeditated design unlawfully and
maliciously to effect the death of any human being other
than him who is killed; or perpetrated by any act greatly
dangerous to the lives of others, and evidencing a depraved
mind, regardless of human life, although without any pre-
conceived purpose to deprive any particular person of life,
is murder in the first degree; and every other homicide,
committed under such circumstances as would have con-
stituted murder at common law, is murder in the second
degree. Code Ala. 1940, § 314. Murder is the unlawful
killing of a human being, in the peace of the people, with
malice aforethought, either expressed or implied. The
unlawful killing may be perpetrated by poisoning, strik-
ing, starving, drowning, stabbing, shooting, or by any
other of the various forms or means by which human na-
ture may be overcome, and death thereby occasioned.
S.H.A. ch. 38, § 358.
Common-Law. The willful killing of any subject what-
ever, with malice aforethought, whether the person slain
shall be an Englishman or a foreigner. Hawk. P.C. b. 1,
c. 13, § 3. The killing of any person under the king's
peace, with malice prepense or aforethought, either ex-
press, or implied by law. 1 Russ. Crimes, 421; Corn. v.
Webster, 5 Cush., Mass., 304, 52 Am.Dec. 711. When a
person of sound mind and discretion unlawfully killeth any
reasonable creature in being, and under the king's peace,
with malice aforethought, either express or implied. 3
Inst. 47; State v. Robinson, 143 La. 543, 78 So. 933, 935.
Degrees. These were unknown at common law, but have
been introduced in many states by statutes, the terms of
which are too variant to be here discussed in detail. In
general, however, it may be said that most states only
divide the crime into "murder in the first degree" and
"murder in the second degree," though in some there are
three degrees; and that the general purport of these stat-
utes is to confine murder in the first degree to homicide
committed by poison, lying in wait, and other killings com-
mitted in pursuance of a deliberate and premeditated de-
sign, and to those which accompany the commission of
some of the more atrocious felonies, such as burglary, ar-
son, rape, and robbery; while murder in the second de-
gree occurs where there is no such deliberately formed
design to take life or to perpetrate one of the enumerated
felonies as is required for the first degree, but where,
nevertheless, there was a purpose to kill (or at least a
purpose to inflict the particular injury without caring
whether it caused death or not) formed instantaneously in
the mind, and where the killing was without justification
or excuse, and without any such provocation as would re-
duce the crime to the grade of manslaughter. State v.
Nelson, 148 Minn. 285, 181 N.W. 850, 851; State v. Liolios,
285 Mo. 1, 225 S.W. 941, 947; Commonwealth v. Divomte,
262 Pa. 504, 105 A. 821, 822. In a few states, there is a
crime of "murder in the third degree," which is defined as
the killing of a human being without any design to effect
death by a person who is engaged in the commission of a
felony. Tillman v. State, 81 Fla. 558, 88 So. 377, 378.
MURDRUM. In old English law, the killing of a
man in a secret manner.
When a man was thus killed, and he was unknown, by
the laws of Canute he was presumed to be a Dane, and
the vill was compelled to pay forty marks to the king for
his death. After the conquest, a similar law was made in
favor of Normans, which was abolished by 3 Edw. III.
The fine formerly imposed in England upon a
person who had committed homicide per infortun-
ium or se defendendo. Prin.Pen.Law 219, note.
MURORUM OPERATIO. Lat. The service of
work and labor done by inhabitants and adjoin-
ing tenants in building or repairing the walls of
a city or castle; their personal service was com-
muted into murage (q. v.). Cowell.
MURTHRUM. In old Scotch law, murther or
murder. Skene.
MUSEUM. A building or institution for the cul-
tivation of science or the exhibition of curiosities
or works of art. The term embraces not only col-
lections of curiosities for the entertainment of the
sight, but also such as would interest, amuse, and
instruct the mind. Bostick v. Purdy, 5 Stew. &
P., Ala., 109.
MUSICAL INSTRUMENT. An instrument hav-
ing the capacity in and of itself when properly
operated to produce or initiate the musical sound.
Dunbar v. Spratt-Snyder Co., 208 Iowa 490, 226 N.
W. 22, 63 A.L.R. 1016.
MUSICAL TABLOID. As distinguished from
vaudeville, a condensation of a musical comedy in
which the plot and the characters taken by dif-
ferent actors are preserved, to produce just one
whole play by itself, without any special inde-
pendent features brought into it; it classifies as
vaudeville only when other features are put on
during the intermissions between the scenes or
acts. Princess Amusement Co. v. Well, C.C.A.
Tenn., 271 F. 226, 231.
MUSSA. In old English law, a moss or marsh
ground, or a place where sedges grow; a place
overrun with moss. Cowell.
MUSSEL. A fresh water shellfish capable of lo-
comotion, usually living in the bed of streams
partially covered with mud. Gratz v. McKee, C.
C.A.Mo., 258 F. 335, 336.
MUST. This word, like the word "shall," is pri-
marily of mandatory effect; State ex rel. McCabe
v. District Court of Third Judicial Dist. in and for
Deer Lodge County, 106 Mont. 272, 76 P.2d 634,
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MUSTER
637; and in that sense is used in antithesis to
"may"; Emery v. First Nat. Bank, 32 N.D. 575, 156
N.W. 105, 109; Reinert Bros. Const. Co. v. Tootle,
200 Mo.App. 284, 206 S.W. 422, 424. But this mean-
ing of the word is not the only one, and it is often
used in a merely directory sense. Robinson v.
City of Saginaw, 267 Mich. 557, 255 N.W. 396;
Munro v. State, 223 N.Y. 208, 119 N.E. 444, 445;
State v. Barnell, 109 Ohio St. 246, 142 N.E. 611, 614;
and consequently is a synonym for the word.
"may" not only in the permissive sense of that
word; Tosti v. Sbano, 170 Misc. 828, 11 N.Y.S.2d
321, 323; Pleasant Grove Union School Dist. v.
Algeo, 61 Cal.App. 660, 215 P. 726; but also in
the mandatory sense which it sometimes has;
People v. Highway Com'rs of Town of Anchor, 279
Ill. 542, 117 N.E. 56, 57.
MUSTER. To assemble together troops and their
arms, whether for inspection, drill, or service in
the field. To take recruits into the service in the
army and inscribe their names on the muster-
roll or official record, To summon together; to
enroll in service. Bannister v. Soldiers' Bonus
Board, 43 R.I. 346, 112 A. 422, 423, 13 A.L.R. 589.
In the latter sense the term implies that the per-
sons mustered are not already in the service. Ty-
ler v. Pomeroy, 8 Allen, Mass., 480.
MUSTER-MASTER. One who superintended
the muster to prevent frauds. St. 35 Eliz. c. 4.
MUSTER-BOOK. A book in which the forces are
registered. Termes de la Ley.
MUSTER-ROLL. In maritime law, a list or ac-
count of a ship's company, required to be kept by
the master or other person having care of the ship,
containing the name, age, national character, and
quality of every person employed in the ship.
Abb.Shipp. 191, 192; Jac. Sea Laws, 161. It is of
great use in ascertaining the ship's neutrality.
Marsh.Ins. p. 407; Ketland v. Lebering, 2 Wash.
C.C. 201, F.Cas.No.7,744.
MUSTIZO. A name given in a South Carolina
Act of 1740 to the issue of an Indian and a negro.
Miller v. Dawson, Dudl., S.C., 174.
MUTA-CANUM. A kennel of hounds; one of the
mortuaries to which the crown was entitled at a
bishop's or abbot's decease. 2 Bl.Comm. 426.
MUTATIO NOMINIS. Lat. In the civil law,
change of name. Cod. 9, 25.
MUTATION. In French law, this term is synony-
mous with "change," and is especially applied to
designate the change which takes place in the
property of a thing in its transmission from one
person to another. Mutation, therefore, happens
when the owner of the thing sells, exchanges, or
gives it. Merl.Repert.
MUTATION OF LIBEL. In practice, an amend-
ment allowed to a libel, by which there is an al-
teration of the substance of the libel, as by pro-
pounding a new cause of action, or asking one
thing instead of another. Dunl.Adm.Pr. 213; U.
S. v. Four Part Pieces of Woollen Cloth, 1 Paine
435, F.Cas.No.15,150.
MUTATIS MUTANDIS. Lat. With the neces-
sary changes in points of detail, meaning that mat-
ters or things are generally the same, but to be
altered when necessary, as to names, offices, and
the like. Housman v. Waterhouse, 191 App.Div.
850, 182 N.Y.S. 249, 251.
MUTE. Speechless; dumb; that cannot or will
not speak.
In English criminal law, a prisoner is said to stand mute
when, being arraigned for treason or felony, he either
makes no answer at all, or answers foreign to the purpose
or with such matter as is not allowable, and will not an-
swer otherwise, or, upon having pleaded not guilty, re-
fuses to put himself upon the country. 4 BI.Comm. 324.
MUTILATION. As applied to written documents,
such as wills, court records, and the like, this
term means rendering the document imperfect by
the subtraction from it of some essential part,
as, by cutting, tearing, burning, or erasure, but
without totally destroying it. Woodfill v. Patton,
76 Ind. 583, 40 Am.Rep. 269; Tinsley v. Carwile,
212 Ind. 675, 10 N.E.2d 597, 600. Also, the altera-
tion in the writing, as in a negotiable instrument,
so as to make it another and different instrument
and no longer evidence of the contract which the
parties made. Clem v. Chapman, Tex.Civ.App., 262
S.W. 168, 171.
In criminal law, the depriving a man of the use
of any of those limbs which may be useful to him
in fight, the loss of which amounts to mayhem.
1 Bl.Comm. 130; People v. Bullington, 27 Cal.App.
2d 396, 80 P.2d 1030, 1032.
MUTINOUS. Insubordinate; disposed to mutiny;
tending to incite or encourage mutiny.
MUTINY, v, To rise against lawful or constituted
authority, particularly in the naval or military
service. United States v. Krafft, C.C.A.N.J., 249
F. 919, 925, L.R.A.1918F, 402.
MUTINY, n. In criminal law, an insurrection of
soldiers or seamen against the authority of their
commanders; a sedition or revolt in the army or
navy. The Stacey Clarke, D.C.Ala., 54 F. 533;
U. S. v. Smith, 1 Mas. 147, F.Cas.No.16,337.
MUTINY ACT. In English law, an act of parlia-
ment annually passed to punish mutiny and deser-
tion, and for the better payment of the army and
their quarters. It was first passed April 12, 1689,
and was the only provision for the payment of the
army. 1 Bl.Comm. 415.
MUTUAL. Common to both parties. Kansas
Amusement Co. v. Maryland Casualty Co., 126 Kan.
354, 267 P. 968, 969.
Interchangeable; reciprocal; each acting in re-
turn or correspondence to the other; given and
received;-spoken of an engagement or relation in
which like duties and obligations are exchanged;
e. g., the marital relation. O'Malley v. O'Malley,
46 Mont. 549, 129 P. 501, 502, Ann.Cas.1914B, 662;
Canal-Commercial Trust & Savings Bank v. Brew-
er, 143 Miss. 146, 108 So. 424, 431, 47 A.L.R. 45.
As to mutual "Accounts," "Assent," "Combat,"
"Conditions," "Contracts," "Covenants," "Credits,"
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MYSTIC
"r5ebts," "Insurance," "Insurance Company," "Mis-
take," "Promise," and "Testaments," see those ti-
tles.
MUTUAL AFFRAY. A fight in which both parties
willingly enter and is similar to a duel. Taylor v.
Commonwealth, 281 Ky. 442, 136 S.W.2d 544.
MUTUAL BENEFIT ASSOCIATION. One based
on reciprocal contracts and requires that a member
receive benefits as a matter of right. In re Hender-
son's Estate, 17 Ca1.2d 853, 112 P.2d 605, 609.
MUTUAL COMPANY. One in which the members
are both the insurers and the insured. Pink v.
Town Taxi Co., 138 Me. 44, 21 A.2d 656, 659.
MUTUAL DEMANDS. Those between the same
parties and due in the same capacity or right.
Thompson v. Prince, Tex.Civ.App., 126 S.W.2d 574,
576.
MUTUAL ENTERPRISE. Building and loan as-
sociation is generally a "mutual enterprise," all
members being under same rules, sharing in prof-
its equally, and bearing proportionate share of
losses. Griffin v. White, 182 S.C. 219, 189 S.E. 127,
131.
MUTUAL RELIEF ASSOCIATION. An insurer,
chartered under a designated statute, having no
capital stock, having relief funds created and sus-
tained by assessments made upon the members,
which files reports with insurance commissioner
evidencing that it is not conducted for profit of
its officers. State v. Texas Mut. Life Ins. Co. of
Texas, Tex.Civ.App., 51 S.W.2d 405, 412.
MUTUAL RESERVE COMPANY. A company is-
suing "benefit thrift certificates" containing both
savings features and renewable term insurance
features, paid for by a single premium, with cash
and loan values and limitation upon the expense
liable for cost of supervision and management, was
a "mutual reserve company". State ex rel. Smrha
v. Cosmopolitan Old Line Life. Ins. Co., 137 Neb.
742, 291 N.W. 72, 79.
MUTUAL SAVINGS BANK. A bank organized
by depositors, whose interest is shown by certifi-
cates of deposit, for the purpose of furnishing a
safe depositary for money of members. It need
not be incorporated or _under supervision unless
state law, so requires. A-C Investment Ass'n v.
Helvering, 62 App.D.C. 339, 68 F.2d . 386, 387.
MUTUAL WILLS. Those made as the separate
wills of two people which are reciprocal in provi-
sion. Child v. Smith, 225 Iowa 1205, 282 N.W. '316,
321. 'Or those executed pursuant to agreement or
compact between two or more persons to dispose
of their property in particular manner,' each in con-
sideration of the other. Maloney v. Rose, 224 Iowa
1071, 277 N.W. 572, 574.
MUTUALITY. Reciprocation; interchange. An
acting by each of two parties; an acting in re-
turn.
Contracts and obligations. "Mutuality of con-
tract" means that obligation rests on each party
to do or permit doing of something in considera-
tion of other party's act or promise; neither
party being bound unless both, are bound. Aden v.
Dalton, 341 Mo. 454, 107 S.W.2d 1070, 1073. Called,
also, mutuality of obligation. Warren v. Ray
County Coal Co., 200 Mo.App. 442, 207 S.W. 883,
884; United Appliance Corporation v. Boyd, Tex.
Civ.App., 108 S.W.2d 760, 764.
As to mutuality of "Assent," "Mistake," etc., see
those titles.
MUTUANT. The person who lends chattels in the
contract of mutuum, (q. v.).
MUTUARI. To borrow; mutuatus, a borrowing.
2 Arch.Pr. 25.
MUTUARY. A person who borrows personal chat-
tels to be consumed by him and returned to the
lender in kind and quantity; the borrower in a
contract of mutuum.
MUTUATUS. A loan of money. See Gilbert, Com.
Pleas 5.
MUTUS ET SURDUS.' Lat. In civil and old Eng-
lish law, dumb and deaf.
NIUTUUM. Lat. A loan for consumption; a loan
of chattels, upon an agreement that the borrower
may consume them, returning to the lender an
equivalent in kind and quantity; as, a loan of
corn, wine, or money which is to be used or con-
:sumed, and is to be replaced by other corn, wine,,or money. Story, Bailm. § 228; In re Ellis' Estate,
24 Del.Ch. 393, 6 A.2d 602, 611. At common law,`such a transaction is regarded as a sale or ex-
change, and not a bailment. Hanes v. Shapiro &
Smith, 168 N.C. 24, 84 S.E. 33, 35; New Domain
Oil & Gas Co. v. Hayes, 202 Ky. 377, 259 S.W. 715,
717, 38 A.L.R. 172.
MYNSTER-HAM. Monastic habitation; perhaps
the part of a monastery set apart for purposes of
hospitality, or as a sanctuary for criminals. Anc.
Inst.Eng.
MYSTERIOUS DISAPPEARANCE. Theft in-
surance policy provision covering any disappear-
ance or loss under unknown, puzzling or baffling
circumstances which arouse wonder, curiosity or
speculation, or circumstances which are difficult
to understand or explain. Claiborne v. U. S. Fire
Ins. Co., La.App., 193 So.2d 315, 317.
MYSTERY. A trade, art, or occupation. 2 Inst.
668. Masters frequently bind themselves in the
indentures with their apprentices to teach them
their art, trade, and mystery. State v. Bishop, 15
Me. 122; Barger v. Caldwell, 2 Dana, Ky., 131.
MYSTIC TESTAMENT. In the law of Louisiana,
a closed or 'sealed will, required by statute to be
executed in' a particular manner and to be signed
(on the outside of the paper or of the envelope
containing it) by a notary and seven witnesses
as well as the testator. See Civ.Code La. art. 1584.
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N
N
N. An abbreviation of "Novelice," the Novels of
Justinian, used in citing them. Tayl.Civil Law, 24.
In English, a common and familiar abbreviation
for the word "north," as used in maps, charts,
conveyances, etc. Burr V. Broadway Ins. Co., 16
N.Y. 271; Village of Bradley v. New York Cent.
R. Co., 296 Ill. 383, 129 N.E. 744, 746.
N. A. An abbreviation for "non allocatur," it is
not allowed.
N. A. S. A. National Aeronautics and Space Ad-
ministration.
N. B. An abbreviation for "nota bene," mark
well, observe; also "nulla bona," no goods.
N. C. D. Nemine contra dicente. No one dissent-
ing.
N. D. An abbreviation for "Northern District."
N. E. I. An abbreviation for "non est inventus,"
he is not found.
N. I. H. National Institutes of Health.
N. L. An abbreviation of "non liquet," (which
see.)
N. L. R. B. National Labor Relations Board.
N. 0. I. B. N. Abbreviation, used under terms of
tariffs, filed with Interstate Commerce Commis-
sion, meaning not otherwise indexed by name.
Pennsylvania R. Co. v. U. S., Ct.C1., 42 F.2d 600,
602.
N. 0. V. See Non Obstante Veredicto.
N. P. An abbreviation for "notary public," Row-
ley v. Berrian, 12 Ill. 200; also for "nisi prius,"
(q. v.).
N. R. An abbreviation for "New Reports;" also
for "not reported," and for "nonresident."
N. S. An abbreviation for "New Series;" also for
"New Style."
NAAM. Sax. The attaching or taking of movable
goods and chattels, called "vif" or "mort" accord-
ing as the chattels were living or dead. Termes de
la Ley.
NABOB. Originally the governor of a. province un-
der the Mogul government of Hindostan, whence
it became a mere title of any man of high rank,
upon whom it was conferred without any office be-
ing attached to it. Wils. Indian Gloss.
NAIF. L. Fr. A villein; a. born slave; a bond-
woman.
NAIL. A lineal measure of two inches and a quar-
ter.
NAKED. Bare; wanting in necessary conditions;
incomplete, as a naked contract, (nudum pactum,)
ti. e., a contract devoid of consideration, and there-
fore invalid; or simple, unilateral, comprising but
a single element, as a naked authority, i. e., one
which' is not coupled with any interest in the
agent, but subsists for the benefit of the principal
alone.
As to naked "Confession," "Deposit," "Posses-
sion," "Possibility," "Power," "Promise," and
"Trust," see those titles.
NAM. In old English law, a distress or seizure of
chattels.
As a Latin conjunction, for; because. Often
used by the old writers in introducing the quota-
tion of a Latin maxim.
NAMARE. L. Lat. In old records, to take, seize
or distrain.
NAIVIATIO. L. Lat. In old English and Scotch
law, a distraining or taking of a distress; an im-
pounding. Spelman.
NAME. The designation of an individual person,
or of a firm or corporation. Riley v. Litchfield,
168 Iowa 187, 150 N.W. 81, 83, Ann.Cas.1917B, 172._
A person's "name" consists of one or more Christian or
given names and one surname or family name. Blakeney
v. Smith, 183 Miss. 151, 183 So. 920, 921. It is the distinc-
tive characterization in words by which one is known and
distinguished from others, - and description, or abbrevia-
tion, is not the equivalent of a "name." Putnam v. Bes-
som, 291 Mass. 217, 197 N.E. 147, 148. Custom gives one"
his father's family name, and such prxnomina as his par-
ents choose to put before it, but this is only general rule,
from which individual may, depart, if he choose. In re"
Cohen, 142 Misc. 852, 255 N.Y.S. 616, 617. As to the history
of Christian names and surnames and their use and relative
importance in law, see In re Snook, 2 Hilt., N.Y., 566.
Distinctive Name. As used ,in regulation of
United States Department of Agriculture, a trade,
arbitrary, or fancy name which.clearly distinguish-
es a food product, mixture, or compound from any
other food product, mixture, or compound. Cres-
cent Mfg. Co. v. Wilson, D.C.N.Y., 233 F. 282, 285;
U. S. v. Forty Barrels and Twenty Kegs of Coca
Cola, 241 U.S. 265, 36 S.Ct. 573, 580, 60 L.Ed. 995,
Ann.Cas.1917C, 487.
NAME AND ARMS CLAUSE. The popular name
in English law for the clause, sometimes inserted
in a will or settlement by which property is given
to a person, for the purpose of imposing on him
the condition that he shall assume the surname
and arms of the testator or settlor, with a direc-
tion that, if he neglects to assume or discontinues
the use of them, the estate shall devolve on the
next person in remainder, and a provision for pre-
serving contingent remainders. 3 Day.Prec.Conv.
277; Sweet.
NAMELY. A difference, in grammatical sense, in
strictness exists between the words namely and
including. Namely imports Interpretation,  e.,
indicates what is included in the previous term;
but including imports addition, i. e., indicates
something not included. 2 Jarm.Wills 222.
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NATIONAL
NAMIUM. L. Lat. In old English law, a taking;
a distress. Spelman. Things, goods, or animals
taken by way of distress. Simplex namium, a sim-
ple taking or pledge. Bract. fol. 205b.
NAMIUM VETITUM. An unjust taking of the
cattle of another and driving them to an unlawful
place, pretending damage done by them. 3 Bl.
Comm. 149.
NANTES, EDICT OF. A celebrated law for the se-
curity of Protestants, made by Henry IV. of
France, and revoked by Louis XIV., October 2,
1685.
NANTISSEMENT. In French law, the contract of
pledge; if of a movable, it is called "gage;" and
if of an immovable, it is called "antichrèse."
Brown.
NARR. A common abbreviation of "narratio,"
(q. v.). A declaration in an action. Jacob.
NARR AND COGNOVIT LAW. Law providing
that judgment may be had for plaintiff on notes
by confession of any attorney that amount shown
on notes, together with interest and costs, consti-
tutes legal and just claim; word "narr" being an
abbreviation of Latin word "narratio," meaning
complaint or petition, and word "cognovit" mean-
ing that defendant has confessed judgment and
justice of claim. Dyer v. Johnson, Tex.Civ.App.,
19 S.W.2d 421, 422.
NARRATIO. Lat. One of the common law names
for a plaintiff's count or declaration, as being a
narrative of the facts on which he relies.
NARRATIVE. In Scotch conveyancing, that part
of a deed which describes the grantor, and person
in whose favor the deed is granted, and states the
cause (consideration) of granting. Bell.
NARRATOR. A countor; a pleader who draws
narrs. Serviens narrator, a serjeant at law.
Fleta, 1. 2, c. 37.
NARROW SEAS. Those seas which run between
two coasts not far apart. The term is sometimes
applied to the English channel. Wharton.
NASCITURUS. Lat. That shall hereafter be born.
A term used in marriage settlements ,to designate
the future issue of the marriage, as distinguished
from "natus," a child already born.
NATALE. The state and condition of a man ac-
quired by birth.
NATI ET NASCITURI. Born and to be born. All
heirs, near and remote.
NATIO. In old records, a native place. Cowell.
NATION. A people, or aggregation of men, exist-
ing in the form of an organized jural society,
usually inhabiting a distinct portion of the earth,
speaking the same language, using the same cus-
toms, possessing historic continuity, and distin-
guished from other like groups by their racial
origin and characteristics, and generally, but not
necessarily, living under the same government and
sovereignty. Montoya v. U. S., -180 U.S. 261, 21 S.
Ct. 358, 45 L.Ed. 521; Worcester v. Georgia, 6 Pet.
539, 8 L.Ed. 483; Republic of Honduras v. Soto, 112
N.Y. 310, 19 N.E. 845, 2 L.R.A. 642.
Besides the element of autonomy or self-government, that
is, the independence of the community as a whole from the
interference of any foreign power in its affairs or any sub-
jection to such power, it is further necessary to the consti-
tution of a nation that it should be an organized jural
society, that is, both governing its own members by regu-
lar laws, and defining and protecting their rights, and
respecting the rights and duties which attach to it as a
constituent member of the family of nations. Such a soci-
ety, says Vattel, has her affairs and her interests; she
deliberates and takes resolutions in common ; thus becom-
ing a moral person, who possesses an understanding and
will peculiar to herself, and is susceptible of obligations
and rights. Vattel, §1 1, 2.
The words "nation" and "people" are frequently used as
synonyms, but there is a great difference between them.
A nation is an aggregation of men speaking the same lan-
guage, having the same customs, and endowed with cer-
tain moral qualities which distinguish them from other
groups of a like nature. It would follow from this defini-
tion that a nation is destined to form only one state, and
that it constitutes one indivisible whole. Nevertheless, the
history of every age presents us with nations divided into
several states.  Thus, Italy was for centuries divided
among several different governments. The people is the
collection of all citizens without distinction of rank or
order. All men living under the same government compose
the people of the state. In relation to the state, the cit-
izens constitute the people; in relation to the human race,
they constitute the nation. A free nation is one not sub-
ject to a foreign government, whatever be the constitution
of the state ; a people is free when all the citizens can par-
ticipate in a certain measure in the direction and in the
examination of public affairs. The people is the political
body brought into existence by community of laws, and
the people may perish with these laws. The nation is the
moral body, independent of political revolutions, because
it is constituted by inborn qualities which render it indis-
soluble. The state is the people organized into a political
body. Lalor, Pol.Enc. s.
In American constitutional -law the word "state"
is applied to the several members of the American
Union, while the word "nation" is applied to the
whole body of the people embraced within the
jurisdiction of the federal government. Cooley,
Const.Lim. 1; Texas v. White, 7 Wall. 720, 19 L.
Ed. 227.
NATIONAL. Pertaining or relating to a nation as
a whole; commonly applied in American law to
institutions, laws, or affairs of the United States
or its government, as opposed to those of the sev-
eral states.
The term "national" as used in the phrase "na-
tional of the United States" is broader than the
term "citizen". Brassert v. Biddle, D.C.Conn., 59
F.Supp. 457, 462.
NATIONAL AGENCY. That Mexican government
contributed to capital of association, and was rep-
resented on governing board and even subsi-
dized association did not render association a •"na-
tional agency" that it might claim sovereign im-
munity. The Uxmal, D.C.Mass., 40 F.Supp. 258,
261.
NATIONAL BANK. A bank incorporated and do-
ing business under the laws of the United States,
as distinguished from a state bank, which derives
its powers from the authority of a particular state.
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NATIONAL
NATIONAL CURRENCY. Notes issued by na-
tional banks, and by the United States govern-
ment.
NATIONAL DEBT. The money owing by govern-
ment to some of the public, the interest of which
is paid out of the taxes raised by the whole of the
public.
NATIONAL DEFENSE. A generic concept and
refers to the military and naval establishments
and the related activities of national preparedness
and includes all matters directly and reasonably
connected with the defense of the nation against
its enemies. Gorin v. United States, Cal., 312 U.
S. 19, 61 S.Ct. 429, 434, 436, 85 L.Ed. 488.
NATIONAL DOMAIN. See Domain.
NATIONAL DOMICILE. See Domicile.
NATIONAL EMERGENCY. A state of national
crisis; a situation demanding immediate and ex-
traordinary national or federal action.
Congress has made little or no distinction be-
tween a "state of national emergency" and a
"state of war". Brown v. Bernstein, D.C.Pa., 49
F.Supp. 728, 732.
NATIONAL GOVERNMENT. The government of
a whole nation, as distinguished from that of a
local or territorial division of the nation, and also
as distinguished from that of a league or confed-
eration.
"A national government is a government of the people
of a single state or nation, united as a community by what
is termed the 'social compact,' and possessing complete
and perfect supremacy over persons and things, so far as
they can be made the lawful objects of civil government.
A federal government is distinguished from a national gov-
ernment, by its being the government of a community of
independent and sovereign states, united by compact."
Piqua Branch Bank v. Knoup, 6 Ohio St. 393.
NATIONALITY. That quality or character which
arises from the fact of a person's belonging to a
nation or state.
Nationality determines the political status of the individ-
ual, especially with reference to allegiance; while domicile
determines his civil status.  Nationality arises either by
birth or by naturalization. According to Savigny, "nation-
ality" is also used as opposed to "territoriality," for the
purpose of distinguishing the case of a nation having no
national territory; e. g., the Jews. 8 Sa y . Syst. § 346;
Westl.Priv.Int. Law, 5.
NATIONALIZACION. In Spanish and Mexican
law, nationalization.
"The nationalization of property is an act which denotes
that it has become that of the nation by some process of
law, whereby private individuals or corporations have been
for specified reasons deprived thereof." Hall, Mex. Law,
§ 749.
NATIONS, LAW OF. See International Law.
NATIVE. A natural-born subject or citizen; a
denizen by birth; one who owes his domicile or
citizenship to the fact of his birth within the coun-
try referred to. The term may also include one
born abroad, if his parents were then citizens of
the country, and not permanently residing in for-
eign parts. U. S. v. Wong Kim Ark, 169 U.S. 649,
18 S.Ct. 456, 42 L.Ed. 890; New Hartford v. Can-
aan, 54 Conn. 39, 5 A. 360; Oken v. Johnson, 160
Minn. 217, 199 N.W. 910.
The word "natives", as used in Alien Enemy Act, refers
to person's place of birth, so that a person remains a na-
tive of country of his birth, though he has moved away
therefrom. United States ex rel. D'Esquiva v. Uhl, C.C.A.
N.Y., 137 F.2d 903, 905.
One who was born in Germany and later become a citizen
of France was a "native" of Germany. Ex parte Gregoire,
D.C.Cal., 61 F.Supp. 92, 93.
But a person born in Alsace which at time of his birth
was part of Germany but which was restored to French
sovereignty by the treaty of Versailles of 1918, was a "na-
tive" of France. United States ex rel. Umecker v. McCoy,
D.C.N.D., 54 F.Supp. 679, 681, 682.
NATIVA. A niefe or female villein. So called
because for the most part bound by nativity. Co.
Litt. 122b.
NATIVI CONVENTIONARH. Villeins or bond-
men by contract or agreement.
NATIVI DE STIPITE. Villeins or bondmen by
birth or stock. Cowell.
NATIVITAS. Villenage; that state in which men
were born slaves. 2 Mon. Angl. 643.
NATIVO IfABENDO. A writ which lay for a lord
when his villein had run away from him. It was
directed to the sheriff, and commanded him to ap-
prehend the villein, and to restore him together
with his goods to the lord. Brown.
NATIVUS. Lat. In old English law, a native;
specifically, one born into a condition of servi-
tude; a born serf or villein.
NATURA APPETIT PERFECTUM; ITA ET LEX.
Nature covets perfection; so does law also. Hob.
144.
NATURA BREVIUM. The name of an ancient
collection of original writs, accompanied with
brief comments and explanations, compiled in the
time of Edward III. This is commonly called
"Old Natura Brevium," (or "0. N. B.,") to dis-
tinguish it from Fitzherbert's Natura Brevium, a
later work, cited as "F. N. B.," or "Fitzh. Nat.
Brev."
NATURA FIDE JUSSIONIS SIT STRICTISSIMI
JURIS ET NON DURAT VEL EXTENDATUR
DE RE AD REM, DE PERSONA AD PER-
SONAM, DE TEMPORE AD TEMPUS. The
nature of the contract of suretyship is strictissimi
juris, and cannot endure nor be extended from
thing to thing, from person to person, or from
time to time. Burge, Sur. 40.
NATURA NON FACIT SALTUM; ITA NEC LEX.
Nature makes no leap, [no sudden or irregular
movement,] so neither does law. Co. Litt. 238.
Applied in old practice to the regular observance
of the degrees in writs of entry, which could not
be passed over per saltum.
NATURA NON FACIT VACUUM, NEC LEX SU-
PERVACUUM. Nature makes no vacuum, the law
nothing purposeless. Co. Litt. 79.
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NATURALEZA
NATURE VIS MAXIMA; NATURA BIS MAXI-
MA. The force of nature is greatest; nature is
doubly great. 2 Inst. 564.
NATURAL. The juristic meaning of this term
does not differ from the vernacular, except in the
cases where it is used in opposition to the term
"legal;" and then it means proceeding from or de-
termined by physical causes or conditions, as dis-
tinguished from positive enactments of law, or at-
tributable to the nature of man rather than to the
commands of law, or based upon moral rather
than legal considerations or sanctions.
As to natural "Allegiance," "Boundary," "Chan-
nel," "Child," "Day," "Death," "Domicile," "Equi-
ty," "Fruits," "Guardian," "Heir," "Infancy," "Lib-
erty," "Obligation," "Person," "Possession," "Pre-
sumption,"  "Rights," "Succession," "Water-
course," and "Year," see those titles.
NATURAL AFFECTION. Such as naturally sub-
sists between near relatives, as a father and child,
brother and sister, husband and wife. This is re-
garded in law as a good consideration.
NATURAL—BORN SUBJECT. In English law, one
born within the dominions, or rather within the
allegiance, of the king of England.
NATURAL FLOOD CHANNEL. A channel be-
ginning at some point on banks of stream and
ending at some other point lower down stream,
through which flood waters naturally flow at times
of high water. C. M. Bott Furniture Co. v. City of
Buffalo, 131 Misc. 624, 227 N.Y.S. 660, 665.
NATURAL FOOL. A person born without under-
standing; a born fool or idiot. Sometimes called,
in the old books, a "natural." In re Anderson, 132
N.C. 243, 43 S.E. 649.
NATURAL LAW. This expression, "natural law,"
or jus naturale, was largely used in the philosophi-
cal speculations of the Roman jurists of the Anto-
nine age, and was intended to denote a system of
rules and principles for the guidance of human
conduct which, independently of enacted law or of
the systems peculiar to any one people, might be
discovered by the rational intelligence of man, and
would be found to grow out of and conform to his
nature, meaning by that word his whole mental,
moral, and physical constitution. The point of de-
parture for this conception was the Stoic doctrine
of a life ordered "according to nature," which in
its turn rested upon the purely supposititious ex-
istence, in primitive times, of a "state of nature;"
that is, a condition of society in which men uni-
versally were governed solely by a rational and
consistent obedience to the needs, impulses, and
promptings of their true nature, such nature being
as yet undefaced by dishonesty, falsehood, or in-
dulgence of the baser passions. Maine, Anc.Law,
50, et seq.; Jus Naturale.
NATURAL LIFE. The period of a person's ex-
istence considered as continuing until terminated
by physical dissolution or death occurring in the
course of nature; used in contradistinction to that
juristic and artificial conception of life as an ag-
gregate of legal rights or the possession of a legal
personality, which could be terminated by "civil,
death,"(q. v.), that is, that extinction of personali-
ty which resulted from entering a monastery or
being attainted of treason or felony. See People
v. Wright, 89 Mich. 70, 50 N.W. 792.
NATURAL MARKETING AREA. A region within
which milk is ordinarily sold in response to com-
mercial demand. State v. Auclair, 110 Vt. 147, 4
A.2d 107, 116.
NATURAL MILK SHED. The milk producing
area which normally produces milk for a given
milk consuming area or market.
Milk producer whose milk could be preserved and trans-
ported to Connecticut in time to be usable as fresh milk
was within the "natural milk shed" of Connecticut. Bry-
ant & Chapman & Co. v. Lowell, 129 Conn. 321, 27 A.2d
637, 638.
NATURAL MONUMENT. Objects permanent in
character which are found on the land as they
were placed by nature, such as streams, lakes,
ponds, shores, and beaches. Timme v. Squires, 199
Wis. 178, 225 N.W. 825, 828. Sometimes including
highways and streets, walls, fences, trees, hedges,
springs, and rocks, and the like. Parran v. Wilson,
160 Md. 604, 154 A. 449, 451.
NATURAL OBJECT OF TESTATOR'S BOUNTY.
In testamentary law, term comprises whoever
would take, in the absence of a will, because they
are the persons whom the law has so designated,
and in the ordinary case the law follows the nor-
mal condition of near relationship. Page v. Phelps,
108 Conn. 572, 143 A. 890, 893.
NATURAL OBJECTS. In interpretation of bound-
aries term includes mountains, lakes, rivers, etc.
Earhart v. Rosenwinkel, 108 Ind.App. 281, 25 N.E.
2d 268, 273.
NATURAL PREMIUM. Actual sum necessary to
meet maturing death claims each year and is nec-
essarily exceeded by the "net premium". Fox v.
Mutual Ben. Life Ins. Co., C.C.A.Mo., 107 F.2d 715,
718.
NATURAL RESOURCE. The term includes not
only timber, gas, oil, coal, minerals, lakes, and
submerged lands, but also, features which sup-
ply a human need and contribute to the health,
welfare, and benefit of a community, and are essen-
tial to the well-being thereof and proper enjoy-
ment of property devoted to park and recreational
purposes. Snyder v. Board of Park Com'rs of
Cleveland Metropolitan Park Dist., 125 Ohio St.
336, 181 N.E. 483, 484.
NATURALE EST QUIDLIBET DISSOLVI EO
MODO QUO LIGATUR. It is natural for a thing
to be unbound in the same way in which it was
bound. Jenk. Cent. 66; Broom, Max. 877.
NATURALEZA. In Spanish law, the state of a
natural-born subject. White, New Recop. b. 1,
tit. 5, c. 2,
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NATURALIZATION
NATURALIZATION. The act of adopting a for-
eigner and clothing him with the privileges of na-
tive citizen. U. S. v. Harbanuk,  62
F.2d 759, 761.
Collective Naturalization.  This takes place
where a government, by treaty or cession, acquires
he whole or part of the territory of a foreign na-
tion and takes to itself the inhabitants thereof,
clothing them with the rights of citizenship either
by the terms of the treaty or by subsequent legis-
lation. State v. Boyd, 31 Neb. 682, 48 N.W. 739;
Opinion of Justices, 68 Me. 589.
NATURALIZE. To confer citizenship upon an
alien; to make a foreigner the same, in respect
to rights and privileges, as if he were a native citi-
zen or subject.
NATURALIZED CITIZEN. One who, being an
alien by birth, has received citizenship under the
laws of the state or nation.
NATUS. Lat. Born, as distinguished from nasci-
turus, about to be born. Ante natus, one born be-
fore a particular person or event, e. g., before the
death of his father, before a political revolution,
etc. Post natus, one born after a particular per-
son or event.
NAUCLERUS. Lat. In the civil law, the master
or owner of a merchant vessel. Calvin.
NAUFRAGE. In French maritime law, ship-
wreck.
"The violent agitation of the waves, the impetuous force
of the winds, storm, or lightning, may swallow up the ves-
sel, or shatter it, in such a manner that nothing remains
of it but the wreck ; this is called 'making shipwreck,'
(faire naufrage.)  The vessel may also strike or run
aground upon a bank, where it remains grounded, which
is called 'echouement;' it may be dashed against the coast
or a rock, which is called (bris;' an accident of any kind
may sink it in the sea, where it is swallowed up, which is
called `sombrer.' " 3 Pard. Droit Commer, § 643.
NAUFRAGIUM. Lat. Shipwreck.
NAUGHT. In old practice, bad; defective. "The
bar is naught." 1 Leon. 77. "The avowry is
naught." 5 Mod. 73. "The plea is undoubtedly
naught." 10 Mod. 329. See 11 Mod. 179.
NAULAGE. The freight of passengers in a ship.
Johnson; Webster.
NAULUM. In the civil law, the freight or fare
paid for the transportation of cargo or passengers
over the sea in a vessel. This is a Latinized form
of a Greek word.
NAUTA. Lat. In the civil ands  law, a
sailor; one who works a ship. Calvin. Any one
who is on board a ship for the purpose of navi-
gating her. The employer of a ship. Dig. 4, 9, 1,
2.
NAUTICA PECUNIA. A loan to a shipowner, to
be repaid only upon the successful termination
of the voyage, and therefore allowed to be made
at an extraordinary rate of interest (nauticum
foonus). Holland, Jurispr. 250.
NAUTICAL. Pertaining to ships or to the art of
navigation or the business of carriage by sea.
NAUTICAL ASSESSORS. Experienced shipmas-
ters, or other persons having special knowledge of
navigation and nautical affairs, who are called to
the assistance of a court of admiralty, in difficult
cases involving questions of negligence, and who
sit with the judge during the argument, and give
their advice upon questions of seamanship or the
weight of testimony. The Empire, D.C.Mich., 19
F. 559; The Clement, 2 Curt. 369, F.Cas.No.2,879.
NAUTICAL MILE. See Mile.
NAUTICUM FCENUS. Lat. In the civil law, nau-
tical or maritime interest; an extraordinary rate
of interest agreed to be paid for the loan of money
on the hazard of a voyage; corresponding to in-
terest on contracts of bottomry or respondentia
in English and American maritime law. Mackeld.
Rom.Law, § 433; 2 Bl.Comm. 458.
NAVAGIUM. In old English law, a duty on cer-
tain tenants to carry their lord's goods in a ship.
NAVAL. Appertaining to the navy, (q. v.).
NAVAL BASE. See Base.
NAVAL COURTS. Courts held abroad in certain
cases to inquire into complaints by the master or
seamen of a British ship, or as to the wreck or
abandonment of a British ship.
A naval court consists of three, four, or five members,
being officers in her majesty's navy, consular officers, mas-
ters of British merchant ships, or British merchants. It
has power to supersede the master of the ship with ref-
erence to which the inquiry is held, to discharge any of
the seamen, to decide questions as to wages, send home
offenders for trial, or try certain offenses in a summary
manner. Sweet.
NAVAL COURTS—MARTIAL. Tribunals for the
trial of offenses arising in the management of pub-
lic war vessels.
NAVAL LAW. The system of regulations and
principles for the government of the navy.
NAVAL OFFICER. An officer in the navy. Also
an important functionary in the United States
custom-houses, who estimates duties, signs per-
mits and clearances, certifies the collectors' re-
turns, etc.
NAVARCIIUS. In the civil law, the master or
commander of a ship; the captain of a man-of-
war.
NAVICULARIUS. In the civil law, the master
or captain of a ship. Calvin.
NAVIGABLE. Capable of being navigated; that
may be navigated or passed over in ships or ves-
sels. Natcher v. City of Bowling Green, 264 Ky.
584, 95 S.W.2d 255, 259. But the term is often,
particularly at common law, understood in a
more restricted sense, viz., subject to the ebb and
flow of the tide. Luscher v. Reynolds, 153 Or.
625, 56 P.2d 1158, 1162.
"The doctrine of the common law as to the navigability
of waters has no application In this country. • • •
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NAVY
There [In England] no waters are navigable in fact, or at
least to any considerable extent, which are not subject to
the tide, and from this circumstance tide-water and navi-
gable water there signify substantially the same thing.
But in this country the case is widely different. * * *
Those rivers must be regarded as public navigable rivers,
in law, which are navigable in fact." The Daniel Ball, 10
Wall. 563, 19 L.Ed. 999.
Waters are "navigable" when they are used, or are sus-
ceptible of being used, in their ordinary condition, as high-
ways for commerce, over which trade and travel are or may
be conducted in customary modes of trade and travel on
water. United States v. Appalachian Electric Power Co.,
D.C.Va., 23 F.Supp. 83.
NAVIGABLE IN FACT. Streams or lakes are
navigable in fact when they are used or are sus-
ceptible of being used in their natural and ordina-
ry condition as highways for commerce over which
trade and travel are or may be conducted in the
customary modes of trade and travel on water.
Taylor Fishing Club v. Hammett, Tex.Civ.App., 88
S.W.2d 127, 129.
NAVIGABLE RIVER OR STREAM. At common
law, a river or stream in which the tide ebbs and
flows, or as far as the tide ebbs and flows. 3 Kent,
Comm. 412, 414, 417, 418; 2 Hil. Real Prop. 90,
91. But as to the definition in American law, see
Navigable, supra.
NAVIGABLE WATERS. Those waters which af-
ford a channel for useful commerce. The Mon-
tello, 20 Wall. 430, 22 L.Ed. 391.
See, also, Navigable, supra.
In several states so long as a stream or body of water
may be put to public use it is "navigable" whether it can
be uses for commercial navigation or not. U. S. v. Holt
State Bank, C.C.A.Minn., 294 F. 161, 166; State v. Korrer,
127 Minn. 60, 148 N.W. 617, 618, L.R.A.1916C, 139; State
v. Akers, 92 Kan. 169, 140 P. 637, 640, Ann.Cas.1916B, 543.
Any natural waters that are usable for rowing or canoeing
are "navigable," and as such open to the public for hunt-
ing or fishing, notwithstanding water is a shallow, muddy
lake or marsh. Baker v. Voss, 217 Wis. 415, 259 N.W. 413.
Contra : To be "navigable," waters must be navigable for
some purpose useful to trade or agriculture and susceptible
of use for purposes of commerce, or possess capacity for
valuable floatage in transportation to market of products of
country through which it runs, a mere theoretical or po-
tential navigability, or one that is temporary, precarious,
unprofitable, or which requires artificial improvement, be-
ing insufficient. St. Paul Fire & Marine Ins. Co. v. Carroll,
Tex.Civ.App., 106 S.W.2d 757, 759. The test of "naviga-
bility" is whether there is in the stream capacity for use
for the purpose of transportation valuable to the public.
American Red Cross v. Hinson, 173 Tenn. 667, 122 S.W.2d
433, 435. Navigability is not imparted by ability to float
small boats, such as skiffs or canoes. United States v.
Appalachian Electric Power Co., D.C.Va., 23 F.Supp. 83.
Generally, a lake that is chiefly valuable for fishing or
pleasure boats of small size is not "navigable." Taylor
Fishing Club & Hammett, Tex.Civ.App., 88 S.W.2d 127, 129,
130.
NAVIGABLE WATERS OF THE UNITED
STATES. Waters are "navigable waters of the
United States" when they form in their ordinary
condition by themselves, or by uniting with other
waters, a continued highway over which commerce
is or may be carried on with other states or for-
eign countries in the customary modes in which
such commerce is conducted by water. United
States v. Appalachian Electric Power Co., D.C.
Va., 23 F.Supp. 83,
NAVIGATE. To journey by water; to go in a
vessel; to sail or manage a vessel; to use the
waters as a highway for commerce or communi-
cation; ply. Hence, to direct one's course through
any medium; to steer, especially to operate an
airplane or airship. United States v. Monstad,
C.C.A.Cal., 134 F.2d 986, 987, 988.
NAVIGATION, The act or the science or the bus-
iness of traversing the sea or other waters in
ships or vessels. Pollock v. Cleveland Ship Build-
ing Co., 56 Ohio St. 655, 47 N.E. 582; The Silvia,
171 U.S. 462, 19 S.Ct. 7, 43 L.Ed. 241; Laurie v.
Douglass, 15 Mees. & W. 746.
Regular navigation. In this phrase, the word
"regular" may be used in contradistinction to "oc-
casional," rather than to "unlawful," and refer
to vessels that, alone or with others, constitute
lines, and not merely to such as are regular in the
sense of being properly documented under the
laws of the country to which they belong. The
Steamer Smidt, 16 Op.Attys.Gen. 276.
Rules of navigation. Rules and regulations
adopted by commercial nations to govern the steer-
ing and management of vessels approaching each
other at sea so as to avoid the danger of collision
or fouling.
NAVIGATION ACTS. Various English enact-
ments passed for the protection of British shipping
and commerce as against foreign countries. For
a sketch of their history and operation, see 3 Steph.
Comm. They are now repealed. See 16 & 17 Vict.
c. 107, and 17 & 18 Vict. cc. 5, 120. Wharton.
NAVIGATION SERVITUDE. Public right of nav-
igation for the use of the people at large. United
States v. 412.715 Acres of Land, Contra Costa
County, Cal., D.C.Cal., 53 F.Supp. 143, 148, 149.
NAVIGATIONAL VISIBILITY. Visibility as af-
fecting speed with reference to distance within
which boat in fog could be brought to stop, before
any course of any vessel emerging from fog on
either side would cross her projected course along-
side the fog bank at its nearest point. The Silver
Palm, C.C.A.Cal., 94 F.2d 754, 767.
NAVIRE. Fr. In French law, a ship. Emerig.
Traite des Assur. c. 6, § 1.
NAVIS. Lat. A ship; a vessel.
NAVIS BONA. A good ship; one that was
staunch and strong, well caulked, and stiffened to
bear the sea, obedient to her helm, swift, and not
unduly affected by the wind. Calvin.
NAVY. A fleet of ships; the aggregate of ves-
sels of war belonging to an independent nation.
In a broader sense, and as equivalent to "naval
forces," the entire corps of officers and men en-
listed in the naval service and who man the public
ships of war, including in this sense, in the Unit-
ed States, the officers and men of the Marine
Corps. Wilkes v. Dinsman, 7 How. 124, 12 L.Ed.
618; U. S. v. Dunn, 120 U.S. 249, 7 S.Ct. 507, 30
L.Ed. 667.
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NAVY BILLS
NAVY BILLS. Bills drawn by officers of the Eng-
lish navy for their pay, etc.
NAVY DEPARTMENT. One of the executive de-
partments of the United States, presided over by
the secretary of the navy, and having in charge
the defense of the country by sea, by means of
ships of war and other naval appliances.
NAVY PENSION. A pecuniary allowance made
in consideration of past services of some one in
the navy.
NAZERANNA. A sum paid to government as an
acknowledgment for a grant of lands, or any pub-
lic office. Enc. Lond.
NAZIM, In Hindu law, composer, arranger, ad-
juster. The first officer of a province, and min-
ister of the department of criminal justice.
NE ADMITTAS. Lat. In ecclesiastical law, the
name of a prohibitory writ, directed to the bishop,
at the request of the plaintiff or defendant, where
a quare impedit is pending, when either party
fears that the bishop will admit the other's clerk
pending the suit between them. Fitzh. Nat. Brev.
37.
NE BAILA PAS. L. Fr. He did not deliver. A
plea in detinue, denying the delivery to the de-
fendant of the thing sued for.
NE DISTURBA PAS. L. Fr. (Does or did not
disturb.) In English practice, the general issue
or general plea in quare impedit. 3 Steph.Comm.
663.
NE DONA PAS, or NON DEDIT. The general is-
sue in a formedon, now abolished. It denied the
gift in tail to have been made in manner and form
as alleged; and was therefore the proper plea, if
the tenant meant to dispute the fact of the gift,
but did not apply to any other case. 5 East, 289.
NE .EXEAT. A writ which forbids the person to
whom it is addressed to leave the country, the
state, or the jurisdiction of the court; available in
some cases to keep a defendant within the reach
of the court's process, where the ends of justice
would be frustrated if he should escape from the
jurisdiction.
Sometimes a ne exeat writ is issued only to restrain a
person from leaving the jurisdiction, and sometimes it is
issued against a person who is removing or attempting to
remove property beyond the jurisdiction. August v. Au-
gust, 65 Ga.App. 883, 16 S.E.2d 784, 785.
NE EXEAT BOND. In wife's suit for divorce and
alimony, "ne exeat bond" conditioned on husband's
appearance on hearing of bill of complaint was in
effect an appearance bond to abide the decree of
the court. Muckelrath v. Chezem, 184 Miss. 511,
186 So. 621, 623.
NE EXEAT REGNO. Lat. In English practice,
a writ which issues to restrain a person from leav-
ing the kingdom. It was formerly used for poli-
tical purposes, but is now only resorted to in equi-
ty when the defendant is about to leave the king-
dom; it is only in cases where the intention of
the party to leave can be shown that the writ is
granted.
NE EXEAT REPUBLICA. Lat. In American
practice, a writ similar to that of ne exeat regno,
(q. v.) available to the plaintiff in a civil suit, un-
der some circumstances, when the defendant is
about to leave the state. Dean v. Smith, 23 Wis.
483, 99 Am.Dec. 198; Adams v. Whitcomb, 46 Vt.
712; Cable v. Alvord, 27 Ohio St. 664.
NE GIST PAS EN BOUCHE. L. Fr. It does not
lie in the mouth. A common phrase in the old
books. Yearb. M. 3 Edw. II. 50.
NE INJUSTE VEXES. Lat. In old English prac-
tice, a prohibitory writ, commanding a lord not
to demand from the tenant more services than
were justly due by the tenure under which his
ancestors held.
NE LUMINIBUS OFFICIATUR. Lat. In the civ-
il law, the name of a servitude which restrains
the owner of a house from making such erections
as obstruct the light of the adjoining house. Dig.
8, 4, 15, 17.
NE QUID IN LOCO PUBLICO VEL ITINERE
FIAT. Lat. That nothing shall be done (put or
erected) in a public place or way. The title of an
interdict in the Roman law. Dig. 43, 8.
NE RECIPIATUR. Lat. That it be not received.
A caveat or warning given to a law officer, by a
party in a cause, not to receive the next proceed-
ings of his opponent. 1 Sell. Pr. 8.
NE RECTOR PROSTERNET ARBORES. L. Lat.
The statute 35 Edw. I. § 2, prohibiting rectors, 1. e.,
parsons, from cutting down the trees in church-
yards. In Rutland v. Green, 1 Keb. 557, it was
extended to prohibit them from opening new mines
and working the minerals therein. Brown.
NE RELESSA PAS. L. Fr. Did not release.
Where the defendant had pleaded a release, this
was the proper replication by way of traverse.
NE UNQUES ACCOUPLE. L. Fr. Never mar-
ried. More fully, ne unques accouple en loiall
matrimonie, never joined in lawful marriage. The
name of a plea in the action of dower unde nihil
habet, by which the tenant denied that the dow-
ress was ever lawfully married to the decedent.
NE UNQUES EXECUTOR. L. Fr. Never ex-
ecutor. The name of a plea by which the defend-
ant denies that he is an executor, as he is alleged
to be; or that the plaintiff is an executor, as he
claims to be.
NE UNQUES SEISE QUE DOWER. L. Fr. (Nev-
er seised of a dowable estate.) In pleading, the
general issue in the action of dower unde nil habet,
by which the tenant denies that the demandant's
husband was ever seised of an estate of which
dower might be had. Rosc. Real Act. 219, 220.
NE UNQUES SON RECEIVER. L. Fr. In plead-
ing, the name of a plea in an action of account-
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NECESSARY
render, by which the defendant denies that he ever
was receiver of the plaintiff. 12 Vin. Abr. 183.
NE VARLETUR. Lat. It must not be altered. A
phrase sometimes written by a notary upon a bill
or note, for the purpose of establishing its identity,
which, however, does not affect its negotiability.
Fleckner v. Bank of United States, 8 Wheat. 338,
5 L.Ed. 631.
NEAP TIDE. When the moon is in its first and
third quarters, the tides do not rise as high, nor
fall as low, as on the average; at such times the
tides are known as "neap tides." Borax Consoli-
dated v. City of Los Angeles, Cal., 296 U.S. 10, 56
S.Ct. 23, 80 L.Ed. 9.
NEAR. The word as applied to space is a rela-
tive term without positive or precise meaning, de-
pending for its signification on the subject-matter
in relation to which it is used and the circumstan-
ces under which it becomes necessary to apply it
to surrounding objects. Case-Fowler Lumber Co.
v. Winslett, 168 Ga. 808, 149 S.E. 211, 213.
NEAT, NET. The clear weight or quantity of an
article, without the bag, box, keg, or other thing in
which it may be enveloped.
NEAT CATTLE. Oxen or heifers. "Beeves" may
include neat stock, but all neat stock are not
beeves. Castello v. State, 36 Tex. 324; Hubotter
v. State, 32 Tex. 479. Straight-backed, domesticat-
ed animals of the bovine genus regardless of sex,
and is not generally but may be, taken to mean
calves, or animals younger than yearlings. It in-
cludes cows, bulls, and steers, but not horses,
mares, geldings, colts, mules, jacks, or jennies,
goats, hogs, sheep, shoats, or pigs. State v. Dis-
trict Court of Fifth Judicial Dist. in and for Nye
County, 42 Nev. 218, 174 P. 1023, 1025; State v.
Swager, 110 Wash. 431, 188 P. 504, 506.
NEAT—LAND. Land let out to the yeomanry.
Cowell.
NEATNESS. In pleading, the statement in apt
and appropriate words of all the necessary facts,
and no more. Lawes, Pl. 62.
NEC CURIA DEFICERET IN JUSTITIA EXHIB-
ENDA. Nor should the court be deficient in show-
ing justice. 4 Inst. 63.
NEC NON. A clause so called which was used as
a fiction to give jurisdiction to the common pleas
in connection with the writ of quare clausum fre-
git. 1 Holdsw. Hist. E. L. 89, note. See Bill of
Middlesex.
NEC TEMPUS NEC LOCUS OCCURRIT REGI.
Jenk. Cent. 190. Neither time nor place affects
the king.
NEC VENIAM EFFUSO SANGUINE CASUS HA-
BET. Where blood is spilled, the case is unpardon-
able. 3 Inst. 57.
NEC VENIAM, L7ESO NUMINE, CASUS HABET.
Where the Divinity is insulted the case is un-
pardonable. Jenk. Cent. 167.
NECATION. The act of killing.
NECESSARIES. An article which a party ac-
tually needs. State v. Earnest, Mo.App., 162 S.W.
2d 338, 341. Things indispensable, or things proper
and useful, for the sustenance of human life.
The word has no hard and fast meaning, but varies with
the accustomed manner of living of the parties. Smitti v.
Roth Cadillac Co., 145 Pa.Super. 292, 21 A.2d 127, 130.
"Necessaries" consist of food, drink, clothing, medical
attention, and a suitable place of residence, and they are
regarded as necessaries in the absolute sense of the word;
however, liability for necessaries is not limited to articles
required to sustain life; it extends to articles which would
ordinarily be necessary and suitable, in view of the rank,
position, fortune, earning capacity, and mode of living of
the husband or father. Caruso v. Caruso, 102 N.J.Eq. 393,
141 A. 16, 19.
Such things as are suited to wife's and children's con-
dition and station in life, their needs and wants, in so far
as ability of parties will permit. Rice v. Mercantile Bank
& Trust Co. of Texas, Tex.Civ.App., 86 S.W.2d 54, 56.
Including funeral expenses of wife and children. Colo-
vos' Adm'r v. Gouvas, 269 Ky. 752, 108 S.W.2d 820, 827, 113
A.L.R. 871. And children's insurance. Sanker v. Hum-
borg, 48 Cal.App.2d 205, 119 P.2d 433, 434.
Whether attorney's services are to be considered "neces-
saries" depends on whether there is necessity therefor.
Fenn v. Hart Dairy Co., 231 Mo.App. 1005, 83 S.W.2d 120,
124. But such services are usually "necessaries". Leonard
v. Alexander, 50 Cal.App.2d 385, 122 P.2d 984, 986.
What constitutes "necessaries" for which an admiralty
lien will attach depends upon what is reasonably needed in
the ship's business, regard being had to the character of
the voyage and the employment in which the vessel is be-
ing used. Walker Skageth Food Stores v. The Bavois, D.C.
N.Y., 43 F.Supp. 109, 110, 111.
In the case of ships the term "necessaries" means such
things as are fit and proper for the service in which the
ship is engaged, and such as the owner, being a prudent
man, would have ordered if present; e. g., anchors, rig-
ging, repairs, victuals. , Maude & P. Shipp. 71, 113. The
master may hypothecate the ,ship for necessaries supplied
abroad so as to bind the owner. Sweet; The Plymouth
Rock, 19 F.Cas. 898; Hubbard v. Roach, C.C.IU., 2 F. 394;
The Gustavia, 11 Fed.Cas. 126.
NECESSARIUM EST QUOD NON POTEST
ALITER SE ELABERE. That is necessary which
cannot be otherwise.
NECESSARIUS. Lat. Necessary; unavoidable;
indispensable; not admitting of choice or the ac-
tion of the will; needful.
NECESSARY. This word must be considered in
the connection in which it is used, as it is a word
susceptible of various meanings. It may import
absolute physical necessity or inevitability, or it
may import that which is only convenient, useful,
appropriate, suitable, proper, or conducive to the
end sought. It is an adjective expressing degrees,
and may express mere convenience or that which
is indispensable or an absolute physical necessity.
It may mean something which in the accomplish-
ment of a given object cannot be dispensed with,
or it may mean something reasonably useful and
proper, and of greater or lesser benefit or con-
venience, and its force and meaning must be de-
termined with relation to the particular object
sought. Kay County Excise Board v, Atchison, T.
& S. F. R. Co., 185 Okl. 327, 91 P.2d 1087, 1088.
In eminent domain proceedings, it means land
reasonably requisite and proper for accomplish-
•
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NECESSARY
ment of end in view, not absolute necessity of par-
ticular location. State v. Whitcomb, 94 Mont. 415,
22 P.2d 823.
As to necessary "Damages," "Deposit," "Domi-
cile," "Implication," "Intromission," "Parties,"
"Repairs," and "Way," see those titles.
NECESSARY INFERENCE. One which is ines-
capable or unavoidable from the standpoint of
reason. Taylor v. Twiner, 193 Miss. 410, 9 So.2d
644, 646.
NECESSARY INJURY. Under Wrongful Death
Statute the words mean pecuniary injury and in-
clude any damages whether present, prospective,
or proximate which may be estimated according
to a pecuniary standard, and the jury is not con-
fined to precise calculation as to amount of loss to
survivors of deceased, but has large discretion in
determining such damages. Polk v. Krenning, Mo.
App., 2 S.W.2d 107, 109.
NECESSITAS. Lat. Necessity; a force, power,
or influence which compels one to act against his
will. Calvin.
NECESSITAS CULPABILIS. Culpable necessity;
unfortunate necessity; necessity which, while it
excuses the act done under its compulsion, does
not leave the doer entirely free from blame. The
necessity which compels a man to kill another in
self-defense is thus distinguished from that which
requires the killing of a felon. See 4 Bl. Comm.
187.
NECESSITAS EST LEX TEMPORIS ET LOCI.
Necessity is the law of time and of place. 1 Hale,
P. C. 54.
NECESSITAS EXCUSAT AUT EXTENUAT DE-
LICTUM IN CAPITALIBUS, QUOD NON OPER-
ATUR IDEM IN CIVILIBUS. Necessity excuses
or extenuates a delinquency in capital cases, which
has not the same operation in civil cases. Bac.
Max.
NECESSITAS FACIT LICITUM QUOD ALIAS
NON EST LICITUM. 10 Coke, 61. Necessity
makes that lawful which otherwise is not lawful.
NECESSITAS INDUCIT PRIVILEGIUM QUOAD
JURA PRIVATA. Bac. Max. 25. Necessity gives
a privilege with reference to private rights. The
necessity involved in this maxim is of three kinds,
viz.: (1) Necessity of self-preservation; (2) of
obedience; and (3) necessity resulting from the
act of God, or of a stranger. Noy, Max. 32.
NECESSITAS NON HABET LEGEM. Necessity
has no law. Plowd. 18a. "Necessity shall be a
good excuse in our law, and in every other law."
Id.
NECESSITAS PUBLICA MAJOR EST QUAM
PRIVATA. Public necessity is greater than pri-
vate. "Death," it has been observed, "is the last
and furthest point of particular necessity, and the
law imposes it upon every subject that he prefer
the urgent service of his king and country before
the safety of his life." Noy, Max. 34; Broom, Max.
18,
NECESSITAS QUOD COGIT, DEFENDIT. Ne-
cessity defends or justifies what it compels. 1
Hale, P. C. 54. Applied to the acts of a sheriff,
or ministerial officer, in the execution of his of-
fice. Broom, Max. 14.
NECESSITAS SUB LEGE NON CONTINETUR,
QUIA QUOD ALIAS NON EST LICITUM NEC-
ESSITAS FACIT LICITUM. 2 Inst. 326. Neces-
sity is not restrained by law; since what other-
wise is not lawful necessity makes lawful.
NECESSITAS VINCIT LEGEM. Necessity over-
rules the law. Hob. 144; Cooley, Const. Lim. 4th
Ed. 747.
NECESSITAS VINCIT LEGEM; LEGUM VIN-
CULA IRRIDET. Hob. 144. Necessity overcomes
law; it derides the fetters of laws.
NECESSITOUS. Indigent or pressed by poverty.
St. Cyr v. Wills, 87 N.H. 277, 178 A. 257.
NECESSITOUS CIRCUMSTANCES. In the civil
code of Louisiana the words are used relative to
the fortune of the deceased and to the condition
in which the claimant lived during the marriage.
Smith v. Smith, 43 La.Ann. 1140, 10 So. 248.
Needing the necessaries of life, which cover not
only primitive physical needs, things absolutely
indispensable to human existence and decency, but
those things, also, which are in fact necessary to
the particular person left without support. State
v. Waller, 90 Kan. 829, 136 P. 215, 216, 49 L.R.A.,
N.S., 588.
NECESSITUDO. Lat. In the civil law, an obliga-
tion; a close connection; relationship by blood.
Calvin.
NECESSITY. Controlling force; irresistible com-
pulsion; a power or impulse so great that it ad-
mits no choice of conduct.
When it is said that an act is done "under necessity,"
it may be, in law, either of three kinds of necessity : (1)
The necessity of preserving one's own life, which will ex-
cuse a homicide; (2) the necessity of obedience, as to the
laws, or the obedience of one not sui juris to his superior ;
(3) the necessity caused by the act of God or a stranger.
See Jacob; Mozley & Whiteley.
That which makes the contrary of a thing impossible.
The quality or state of being necessary, in its primary
sense signifying that which makes an act or event un-
avoidable. Spreckels v. City and County of San Fran-
cisco, 76 Cal.App. 267, 244 P. 919, 922; In re Washington
Ave. in Borough of Chatham, 5 N.J.Misc. 858, 139 A. 239,
240.
A constraint upon the will whereby a person is urged
to do that which his judgment disapproves, and which,
it is to be presumed, his will (if left to itself) would
reject. A man, therefore, is excused for those actions
which are done through unavoidable force and compulsion.
Wharton.
In determining what is a work of "necessity" excepted
from the operation of the Sunday law, the necessity meant
is not a physical or absolute necessity, but a moral fitness
or propriety of the work and labor done under the circum-
stances of the particular case, and whether or not the act
is morally fit and proper is usually a question of fact for
the jury under proper instructions. Lakeside Inn Corpora-.
tion v. Commonwealth, 134 Va. 696, 114 S.E. 769, 771; Na-
tural Gas Products Co. v. Thurman, 205 Ky. 100, 265 S.W.
475, 477. The term "necessity" means an economical and
moral necessity, rather than an unavoidable physical neces-
sity. Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388, 392, L.
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NEGATIVE
R.A.1918B, 1109. The necessity which must exist depends on
what the general public in its ordinary modes of doing
business regards as necessary. Gray v. Commonwealth,
171 Ky. 269, 188 S.W. 354, 355, L.R.A. 1917B, 93. "Works
of necessity" include whatever is needful for the good
health, order, or comfort of the community. State v.
Dean, 149 Minn. 410, 84 N.W. 275.
The word "necessity", within certificate of public con-
venience and necessity, is not used in the sense of being
essential or absolutely indispensable but merely that cer-
tificate is reasonably necessary for public good. Alabama
Public Service Commission v. Crow, 247 Ala. 120, 22 So.2d
721, 724.
To fulfill requirements for easement of right of way of
necessity, the necessity must be actual, real, and reason-
able, as distinguished from inconvenience, but it need not
be absolute and irresistible necessity. Brasington v. Wil-
liams, 143 S.C. 223, 141 S.E. 375, 383.
"Necessity" when used in relation to power of eminent
domain does not mean absolute necessity, but only rea-
sonable necessity. Chicago & N. W. R. Co. v. City of
Racine, 200 Wis. 170, 227 N.W. 859, 861.
The "necessity" of and appurtenance for the beneficial
use of leased premises, which will entitle the lessee there-
to, is not an absolute necessity in the sense that it must
be completely indispensable, but is a real necessity and
not a mere convenience or advantage. Raynes v. Stevens,
219 Mass. 556, 107 N.E. 398, 399.
Public necessity. Of a municipal improvement,
needed for reasonable convenience, facility, and
completeness in accomplishing a public purpose.
In re Washington Ave. in Borough of Chatham,
5 N.J.Misc. 858, 139 A. 239, 240. With reference
to common carriers, great or urgent public con-
venience. Delaware, L. & W. R. Co. v. Van Sant-
voord, D.C.N.Y., 232 F. 978, 983.
NECK-VERSE The Latin sentence, "Miserere
mei, Deus," was so called, because the reading of
it was made a test for those who claimed benefit
of clergy.
NECROPHILISM. See Insanity.
NECROPSY. An autopsy, or post-mortem exam-
ination of a human body.
NEED. A relative term, the conception of which
must, within reasonable limits, vary with the per-
sonal situation of the individual employing it. In
re Skuse's Estate, 165 Misc. 554, 1 N.Y.S.2d 202,
205.
NEEDFUL. Necessary, requisite, essential, indis-
pensable. Riddell v. Pennsylvania R. Co., 262 Pa.
582, 106 A. 80, 81.
NEEDLESS. In a statute against "needless" kill-
ing or mutilation of any animal, this term denotes
an act done without any useful motive, in a spirit
of wanton cruelty, or for the mere pleasure of
destruction. Grise v. State, 37 Ark. 460; Hunt v.
State, 3 Ind.App. 383, 29 N.E. 933; State v. Bogard-
us, 4 Mo.App. 215.
NEEDY. Indigent, necessitous, very poor. Moore
v. State Social Security Commission, 233 Mo.App.
536, 122 S.W.2d 391, 393; Nichols v. State Social
Security Commission of Missouri, 349 Mo. 1148, 164
S.W.2d 278, 280.
NEFAS. Lat. That which is against right or the
divine law. A wicked or impious thing or act.
Calvin.
NEFASTUS. Lat. Inauspicious, Applied, in the
Roman law, to a day on which it was unlawful
to open the courts or administer justice.
NEGATIO CONCLUSIONIS EST ERROR IN
LEGE. Wing. 268. The denial of a conclusion is
error in law.
NEGATIO DESTRUIT NEGATIONEM, ET AM-
BIE FACIUNT AFFIRMATIONEM. A negative
destroys a negative, and both make an affirmative.
Co. Litt. 146b. Lord Coke cites this as a rule of
grammatical construction, not always applying in
law.
NEGATIO DUPLEX EST AFFIRMATIO. A dou-
ble negative is an affirmative.
NEGATIVE. A denial; a proposition by which
something is denied; a statement in the form of
denial. Two negatives do not make a good issue.
Steph. Pl. 386, 387.
As to negative "Covenant," "Easement," "Serv-
itude," "Statute," and "Testimony," see those titles.
NEGATIVE AVERMENT. As opposed to the tra-
verse or simple denial of an affirmative allegation,
a negative averment is an allegation of some sub-
stantive fact, e. g., that premises are not in repair,
which, although negative in form, is really affirm•
ative in substance, and the party alleging the fact
of non-repair must prove it. Brown. An aver-
ment in some of the pleadings in a case in which
a negative is asserted. U. S. v. Eisenminger, D.C.
Del., 16 F.2d 816, 819.
NEGATIVE CONDITION. One by which it is
stipulated that a given thing shall not happen.
NEGATIVE EVIDENCE. Testimony that an al-
leged fact did not exist. K. B. Johnson & Sons v.
Southern Ry. Co., 214 N.C. 484, 199 S.E. 704, 706.
NEGATIVE HEAD. As used in connection with a
filtration plant it means the force that comes into
play when a partial vacuum is created either with-
in or below the filter bed. City of Harrisburg v.
New York Continental Jewell Filtration Co., C.C.
A.Pa., 217 F. 366, 368.
NEGATIVE PREGNANT. In pleading, a nega-
tive implying also an affirmative. Cowell. Such a
form of negative expression as may imply or carry
within it an affirmative. Steph. Pl. 318; Fields v.
State, 134 Ind: 46, 32 N.E. 780; Stone v. Quaal, 36
Minn. 46, 29 N.W. 326.
As if a man be said to have aliened land in fee, and he
says he has not aliened in fee, this is a negative pregnant;
for, though it be true that he has not aliened in fee, yet
it may be that he has made an estate in tail. Cowell. A
"negative pregnant," is a denial in form, but is in fact an
admission, as where the denial in hiec verba includes the
time and place, which are usually immaterial. Hall &
Lyon Furniture Co. v. Torrey, 196 App. Div. 804, 188 N.Y.
S. 486, 487; Green v. Commercial Bank & Trust Co. D.C.
Wyo., 277 F. 527, 528; McIntosh Livestock Co. v. Buffing-
ton, 108 Or. 358, 217 P. 635, 636.
A denial in such form as to imply or express an admis-
sion of the substantial fact which apparently is controvert-
ed; or a denial which, although in the form of a traverse,
really admits the important facts contained in the allega-
tions to which it relates. Cramer v. Aiken, 63 App.D.C.
16, 68 F.2d 761, 762.
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NEGGILDARE
NEGGILDARE. To claim kindred. Jac. L. Dict.
NEGLECT. May mean to omit, fail, or forbear
to do a thing that can be done, or that is required
to be done, but it may also import an absence of
care or attention in the doing or omission of a giv-
en act. State v. Sheldon, 135 Okl. 278, 276 P. 468,
472; Same v. Butterfield, 138 Oki. 112, 276 P. 473.
And it may mean a designed refusal or unwill-
ingness to perform one's duty. In re Perkins, 234
Mo.App. 716, 117 S.W.2d 686, 692.
The term is used in the law of bailment as syn-
onymous with "negligence." But the latter word
is the closer translation of the Latin "negligentia."
Failure to pay money which the party is bound to pay
without demand. Kimball v. Rowland, 6 Gray, Mass., 224.
An omission to do or perform some work, duty, or act.
Esposito v. St. George Swimming Club, 143 Misc. 15, 255
N.Y.S. 794, 801. Failure to perform or discharge a duty,
covering positive official misdoing or official misconduct
as well as negligence. Commonwealth ex rel. and to Use
of Allegheny County v. De Luca, 131 Pa.Super. 451, 200 A.
712, 714.
Culpable Neglect. In this phrase, the word "culpable"
means not only criminal, but censurable. As he has mere-
ly lost a right of action which he might voluntarily re-
linquish, and has wronged nobody but himself, culpable
neglect to preserve rights conveys the idea of neglect which
exists where the loss can fairly be ascribed to the party's
own carelessness, improvidence, or folly. State ex rel.
Fulton v. Coburn, 133 Ohio St. 192, 12 N.E.2d 471, 477.
Willful Neglect. The neglect of the husband to provide
for his wife the common necessaries of life, he having the
ability to do so; or it is the failure to do so by reason of
idleness, profligacy, or dissipation. Civil Code Cal. § 105.
NEGLECTED MINOR. One suffering from neg-
lect and in state of want. People v. De Pue, 217
N.Y.S. 205, 206, 217 App.Div. 321.
NEGLIGENCE. The omission to do something
which a reasonable man, guided by those ordinary
considerations which ordinarily regulate human
affairs, would do, or the doing of something which
a reasonable and prudent man would not do.
Schneeweisz v. Illinois Cent. R. Co., 196 Ill.App.
248, 253; Schneider v. C. H. Little Co., 184 Mich.
315, 151 N.W. 587, 588; Hulley v. Moosbrugger, 88
N.J.L. 161, 95 A. 1007, 1010, L.R.A. 1916C, 1203.
The term refers only to that legal delinquency which
results whenever a man fails to exhibit the care which he
ought to exhibit, whether it be slight, ordinary, or great.
Hazzard v. Chase Nat. Bank of City of New York, 159
Misc. 57, 287 N.Y.S. 541, 552. It is characterized chiefly by
inadvertence, thoughtlessness, inattention, and the like,
while "wantonness" or "recklessness" is characterized by
willfulness. People v. Orr, 243 Mich. 300, 220 N.W. 777,
779. The law of "negligence" is founded on reasonable
conduct or reasonable care under all circumstances of par-
ticular case. Charbonneau v. MacRury, 84 N.H. 501, 153
A. 457, 462, 73 A.L.R. 1266. Doctrine of negligence rests
on duty of every person to exercise due care in his conduct
toward others from which injury may result. Johnson v.
Grand Trunk Western R. Co., 246 Mich. 52, 224 N.W. 448,
449. "Negligence" is not intentional conduct. Gunther v.
Morey Larue Laundry Co., 129 N.J.L. 345, 29 A.2d 713, 714.
Inaction as well as action may be "negligence". Public
Service Co. of New Hampshire v. Elliott, C.C.A.N.H., 123
F.2d 2, 5. It is not act itself, but fact which defines char-
acter of act and makes it legal wrong. Metzger v. Gam-
bill, Tex.Civ.App., 37 S.W.2d 1077, 1078. It is immaterial
to the question of "negligence" whether violated standard
of conduct is established by statute or by the common law.
Armit v. Loveland, C.C.A.Pa., 115 F.2d 308, 311, 312. It is
the failure to do that which a person of ordinary prudence,
Ottenhelmer v. Molohan, 146 Md. 175, 126 A. 97, 100; an
ordinarily prudent person, Wichita Valley Ry. Co. v.
Meyers, Tex.Civ.App., 248 S.W. 444, 447; a reasonable and
prudent person, Chickasha Cotton Oil Co. v. Brown, 39 Okl.
245, 134 P. 850; Baltimore & P. R. Co. v. Jones, 95 U.S.
441, 24 L.Ed. 506; a person of ordinary care. Citizens'
Nat. Bank of Jasper v. Rateliff & Lanier, Tex.Civ.App.,
238 S. W. 362, 365; a reasonable, prudent person, Boswell
v. Whitehead Hosiery Mills, 191 N.C. 549, 132 S.E. 598, 602;
a person of ordinary prudence and care, Illinois Cent. R.
Co. v. Nelson, C.C.A.Iowa, 203 F. 956, 959; an ordinarily
reasonable, careful, and prudent person, Johnson v. Omaha
& Council Bluffs Street Ry. Co., 194 Iowa 1230, 190 N.W.
977, 978; or a reasonably prudent person, guided by those
considerations which ordinarily regulate conduct of human
affairs, would do, or doing something which such a person
would not do, under like or similar circumstances. McKee
v. Iowa Ry. & Light Co., 204 Iowa 44, 214 N.W. 564, 565;
Bowers v. J. D. Halstead Lumber Co., 28 Ariz. 122, 236 P.
124, 125.
The failure to use ordinary care, Curtis v. Mauger, 186
Ind. 118, 114 N.E. 408, 409; reasonable care, Crowley v.
Chicago, B. & Q. R. Co., 204 Iowa 1385, 213 N.W. 403, 407,
53 A.L.R. 964; or ordinary or reasonable care under the
circumstances, Thrasher v. St. Louis & S. F. Ry. Co., 826
Okl. 88, 206 P. 212, 214.
The failure to exercise that degree of care which a pru-
dent person, Getsinger v. Corbell, 188 N.C. 553, 125 S.E.
180, 181; an ordinarily prudent person, Faulk v. Kansas
City Rys. Co., Mo.App., 247 S.W. 253; a reasonably pru-
dent person, Moir v. Hart, 189 Ill.App. 566, 567; City of
Decatur v. Eady, 186 Ind. 205, 115 N.E. 577, 579, L.R.A.
1917E, 242; a reasonable and prudent person, Heller v.
New York, N. H. & H. R. Co., C.C.A.N.Y., 265 F. 192, 198,
17 A.L.R. 823; a reasonably careful person, Behen v. Phil-
adelphia, B. & W. R. Co., 93 A. 903, 904, 5 Boyce, Del., 389;
an ordinary prudent person, Donahue v. R. A. Sherman's
Sons Co., 39 R.I. 373, 98 A. 109, 114, L.R.A.1917A, 76; a rea-
sonably prudent, careful person, Gray v. Pennsylvania R.
Co., 3 W.W.Harr., Del., 450, 139 A. 66, 75; a reasonably
prudent and careful person, Lemmon v. Broadwater, 108 A.
273, 274, 7 Boyce, Del., 472; or an ordinarily prudent and
careful person would exercise under like circumstances,
Clayton v. Philadelphia, B. & W. R. Co., 106 A. 577, 579, 7
Boyce, Del., 343.
The failure to exercise ordinary care. Anderson v. At-
lantic Coast Line R. Co., 161 N.C. 462, 77 S.E. 402, 404.
Ordinary or reasonable care being that care which ordi-
narily prudent persons, Travis v. Louisville & N. R. Co.,
183 Ala. 415, 62 So. 851, 854; reasonably prudent persons,
Burns v. Polar Wave Ice & Fuel Co., Mo.App., 187 S.W.
145, 148; persons of ordinary prudence, Shirley Hill Coal
Co. v. Moore, 181 Ind. 513, 103 N.E. 802, 804; ordinary
careful, prudent persons, Yellow Pine Paper Mill Co. v.
Wright, Tex., 154 S.W. 1168, 1171; or ordinarily careful or
prudent persons, would exercise under like or similar cir-
cumstances. Loverage v. Carmichael, 164 Minn. 76, 204
N.W. 921, 922.
The breach of a legal duty. Taylor v. Neuse Lumber
Co., 173 N.C. 112, 91 S.E. 719, 720; Jones v. Atchison, T. &
S. F. Ry. Co., 98 Kan. 133, 157 P. 399, 400; Pickett v.
Waldorf System, 241 Mass. 569, 136 N.E. 64, 65, 23 A.L.R.
1014; Schell v. Du Bois, 94 Ohio St. 93, 113 N.E. 664, 668,
L.R.A.1917A, 710.
Negligence usually consists in the "involuntary and cas-
ual"-that is, "accidental"-doing or omission to do some-
thing which results in an injury, Root v. Topeka Ry. Co.,
96 Kan. 694, 153 P. 550; and is synonymous with heedless-
ness, carelessness, thoughtlessness, disregard, inattention,
inadvertence, remissness and oversight, Payne v. Vance,
103 Ohio St. 59, 133 N.E. 85, 87.
"Negligence" in official conduct is ordinarily the failure
to use such reasonable care and caution as would be ex-
pected of a prudent man. Hamrick v. McCutcheon, 101 W.
Va. 485, 133 S.E. 127, 129.
Negligence is any culpable omission of a positive duty.
It differs from heedlessness, in that heedlessness is the do-
ing of an act in violation of a negative duty, without ad-
verting to its possible consequences. In both cases there is
inadvertence, and there is breach of duty. Aust. Jur. 630.
Negligence or carelessness signifies want of care, caution,
attention, diligence, or discretion in one having no posi-
tive intention to injure the person complaining thereof.
The words "reckless," "indifferent," "careless," and "wan-
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NEGLIGENCE
ton" are never understood to signify positive will or in-
tention, unless when joined with other words which
show that they are to receive an artificial or unusual, if
not an unnatural, interpretation. Lexington v. Lewis, 10
Bush, Ky., 677.
"Negligence" is not synonymous with "incompetency,"
since the competent may be negligent. Alabama City, G.
& A. Ry. Co. v. Bessiere, 190 Ala. 59, 66 So. 805, 806;
Barclay v. Wetmore & Morse Granite Co., 92 Vt. 195, 102 A.
493, 495.
See Care.
Actionable Negligence. See Actionable Negli-
gence.
Collateral Negligence. In the law relating to the
responsibility of an employer or principal for the
negligent acts or omissions of his employee, the
term "collateral" negligence is sometimes used to
describe negligence attributable to a contractor
employed by the principal and for which the latter
is not responsible, though he would be responsible
for the same thing if done by his servant. Weber
v. Railway Co., 20 App.Div. 292, 47 N.Y.S. 11.
Comparative Negligence, See Comparative Neg-
ligence.
Concurrent Negligence. Arises where the in-
jury is ,,..1.,proximatel;, caused by the concurrent
wrongful acts or omissions of two or more persons
acting independently. Carr v. St. Louis Auto Sup-
ply Co., 293 Mo. 562, 239 S.W. 827, 828.
Contributory Negligence. The act or omission
amounting to want of ordinary care on part of
complaining party, which, concurring with defend-
ant's negligence, is proximate cause of injury.
Honaker v. Crutchfield, 247 Ky. 495, 57 S.W.2d 502.
Any want of ordinary care on the part of the person in-
jured, (or on the part of another whose negligence is im-
putable to him,) which combined and concurred with the
defendant's negligence, and contributed to the injury as
a proximate cause thereof, and as an element without
which the injury would not have occurred. Railroad Co.
v. Young, 153 Ind. 163, 54 N.E. 791; Barton v. Railroad
Co., 52 Mo. 253, 14 Am.Rep. 418; McLaughlin v. Electric
Light Co., 100 Ky. 173, 37 S.W. 851, 34 L.R.A. 812; 25 C.J.
S. Damages; Townsend v. Missouri Pac. R. Co., 163 La.
872, 113 So. 130, 132, 54 A.L.R. 538.
The negligent act of plaintiff which, concurring and co-
operating with negligent act of defendant, becomes real,
efficient, and proximate cause of injury, or cause without
which the injury would not have occurred. Elder v. Plaza
Ry., 194 N.C. 617, 140 S.E. 298, 299; James v. Delaware,
L. & W. R. Co., 92 N.J.L. 149, 104 A. 328, 333.
"Assumption of risk" and "contributory negligence" are
not synonymous. Chicago, R. L & P. R. Co. v. Rogers, 60
Okl. 249, 159 P. 1132, 1136.
Concurrent Contributory Negligence. Knowledge of spe-
cific danger and negligent failure to avoid it. Sprinkle v.
St. Louis & S. F. R. Co., 215 Ala. 191, 110 So. 137, 140.
Mutual Contributory Negligence. Exists when injury
would not have happened but for negligence of both par-
ties. Alexander v. Missouri, K. & T. R. Co. of Texas,
Tex.Civ.App., 287 S.W. 153, 155.
Criminal Negligence. Criminal negligence which
will render killing a person manslaughter is the
omission on the part of the person to do some act
which an ordinarily careful and prudent man
would do under like circumstances, or the doing of
some act which an ordinarily careful, prudent man
under like circumstances would not do by reason
of which another person is endangered in life or
bodily safety; the word "ordinary" being synony-
mous with "reasonable" in this connection. State
v. Coulter, Mo.Sup., 204 S.W. 5.
Negligence of such a character, or occurring under such
circumstances, as to be punishable as a crime by statute;
or (at common law) such a flagrant and reckless disregard
of the safety of others, or wilful indifference to the injury
liable to follow, as to convert an act otherwise lawful into
a crime when it results in personal injury or death. 4 Bl.
Comm. 192, note; Cook v. Railroad Co., 72 Ga. 48; Rankin
v. Transportation Co., 73 Ga. 229, 54 Am.Rep. 874; Rail-
road Co. v. Chollette, 33 Neb. 143, 49 N.W. 1114.
Culpable Negligence. Failure to exercise that
degree of care rendered appropriate by the partic-
ular circumstances, and which a man of ordinary
prudence in the same situation and with equal ex-
perience would not have omitted. Carter v. Lum-
ber Co., 129 N.C. 203, 39 S.E. 828; Woodman v.
Nottingham, 49 N.H. 387, 6 Am.Rep. 526; Kim-
ball v. Palmer, C.C.A.Va., 25 C.C.A. 394, 80 F. 240.
Degrees of Negligence. There are degrees of
care, and failure to exercise proper degree of care
is "negligence," but there are no degrees of negli-
gence. Murray v. De Luxe Motor Stages of Illi-
nois, Mo.App., 133 S.W.2d 1074, 1078.
Classification of "negligence" as "gross," "ordinary,"
and "slight" indicates only that under special circum-
stances great care and caution, or ordinary care, or slight
care are required, but failure to exercise care demanded is
"negligence." 38 Del. Laws, c. 26. Gallegher v. Davis, 7
W.W.Harr. 380, 183 A. 620.
Gross Negligence, The Intentional failure to
perform a manifest duty in reckless disregard of
the consequences as affecting the life or property
of another; such a gross want of care and regard
for the rights of others as to justify the presump-
tion of willfulness and wantonness. Seelig v. First
Nat. Bank, D.C.I1L, 20 F.Supp. 61, 68.
The failure to exercise slight care. Jones v. Atchison,
T. & S. F. Ry. Co., 98 Kan. 133, 157 P. 399, 400; Burton
Const. Co. v. Metcalfe, 162 Ky. 366, 172 S.W. 698, 701.
The want of slight diligence. The want of that care
which every man of common sense, how inattentive so-
ever, takes of his own property. The omission of that care
which even inattentive and thoughtless men never fail to
take of their own property. Litchfield v. White, 7 N.Y.
442, 57 Am. Dec. 534; Seybel v. National Currency Bank,
54 N.Y. 299, 13 Am.Rep. 583; Briggs v. Spaulding, 141 U.
S. 132, 11 S.Ct. 925, 35 L.Ed. 662; The want of ordinary
diligence and care which usually prudent man takes of
his own property of like description. Dalton v. Hamilton
Hotel Operating Co., 242 N.Y. 481, 152 N.E. 268, 270. In
the law of torts (and especially with reference to personal
injury cases), the term means such negligence as evi-
dences a reckless disregard of human life, or of the safety
of persons exposed to its dangerous effects, or that entire
want of care which would raise the presumption of a con-
scious indifference to the rights of others which is equival-
ent to an intentional violation of them. McDonald v. Rail-
road Co., Tex.Civ.App., 21 S.W. 775; Railroad Co. v. Bode-
mer, 139 Ill. 596, 29 N.E. 692, 32 Am.St.Rep. 218; Coit v.
Western Union Tel. Co., 130 Cal. 657, 63 P. 83, 53 L.R.A.
678; Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, 148 N.
E. 862, 866, 41 A.L.R. 1345.
Indifference to present legal duty and utter forgetfulness
of legal obligations, so far as other persons may be affect-
ed, and a manifestly smaller amount of watchfulness and
circumspection than the circumstances require of a person
of ordinary prudence. Burke v. Cook, 246 Mass. 518, 141
N.E. 585, 586. Negligence bordering on recklessness. Peo-
ple v. Adams, 289 Ill. 339, 124 N.E. 575, 577.
"Gross negligence," is substantially higher in magni-
twie than simple inadvertence, but falls short of inten-
tional wrong. Young v. City of Worcester, 253 Mass. 481,
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NEGLIGENCE
149 N.E. 204, 205. Words "gross negligence," are equiv-
alent to words "reckless and wanton." Jones v. Common-
wealth, 213 Ky. 356, 281 S. W. 164, 167.
Hazardous Negligence. Such careless or reck-
less conduct as exposes one to very great danger
of injury or to imminent peril. Riggs v. Standard
Oil Co., C.C.Minn., 130 F. 204.
Legal Negligence. See Legal Negligence.
Ordinary Negligence. The omission of that care
which a man of common prudence usually takes of
his own concerns. Ouderkirk v. Central Nat.
Bank, 119 N.Y. 263, 23 N.E. 875; Scott v. Depeyster,
1 Edw. Ch., N.Y., 543; Briggs v. Spaulding, 141 U.
S. 132, n. Sup.Ct. 924, 35 L.Ed. 662. Failure to ex-
ercise care of an ordinarily prudent person in same
situation. Avery v. Thompson, 117 Me. 120, 103
A. 4, 5, L.R.A. 1918D 205. A want of that care and
prudence that the great majority of mankind exer-
cise under the same or similar circumstances.
Clemens v. State, 176 Wis. 289, 185 N.W. 209, 212,
21 A.L.R. 1490. Wherever distinctions between
gross, ordinary and slight negligence are observed,
"ordinary negligence" is said to be the want of
ordinary care. Saxe v. Terry, 250 P. 27, 28, 140
Wash. 503.
"Ordinary negligence" is based on fact that one ought to
have known results of his acts, while "gross negligence"
rests on assumption that one knew results of his acts, but
was recklessly or wantonly indifferent to results. All neg-
ligence below that called gross by courts and text-book
writers is "slight negligence" and "ordinary negligence."
People v. Campbell, 237 Mich. 424, 212 N.W. 97, 99. The
distinction between "ordinary negligence" and "gross
negligence is that the former lies in the field of inad-
vertence and the latter in the field of actual or construc-
tive intent to injure. Ben tson v. Brown, 191 W is. 460,
211 N.W. 132, 133.
Passive Negligence. Negligence which permits
defects, obstacles or pitfalls to exist upon prem-
ises; which causes dangers arising from physical
condition of land itself. Perry v. St. Jean, 218 A.2d
484, 485; Cunag v. McCarthy, 191 N.E.2d 404, 407,
42 Ill.App.2d 36.
Slight Negligence. "A slight want of ordinary
care." 7 A. & E. Enc. Law 2d Ed. 373(2), 375(4),
377(5) ; Macon & Western R. Co. v. Davis, 13 Ga.
68(10). Slight negligence is not slight want of
ordinary care contributing to the injury, which
would defeat an action for negligence. Slight neg-
ligence is defined to be only an absence of that
degree of care and vigilance which persons of ex-
traordinary prudence and foresight are accus-
tomed to use. Briggs v. Spaulding, 141 U.S. 132,
11 &Ct. 924, 35 L.Ed. 662; Litchfield v. White, 7
N.Y. 438, 57 Am.Dec. 534.
Subsequent Negligence. Exists where defend-
ant sees plaintiff in a position of danger and fails
to exercise due and proper precaution to prevent
injury to plaintiff. Holman v. Brady, 241 Ala.
487, 3 So.2d 30, 33.
Wanton Negligence. Reckless indifference to
the consequences of an act or omission, where the
party acting or failing to act is conscious of his
conduct and, without any actual intent to injure, is
aware, from his knowledge of existing circum-
stances and conditions, that his conduct will in-
evitably or probably result in injury to another.
Alabama G. S. R. Co. v. Hall, 105 Ala. 599, 17 So.
176.
Willful Negligence. Though rejected by some
courts and writers as involving a contradction of
terms, this phrase is occasionally used to describe
a higher or more aggravated form of negligence
than "gross." It then means a willful determina-
tion not to perform a known duty, or a reckless
disregard of the safety or the rights of others, as
manifested by the conscious and intentional omis-
sion of the care proper under the circumstances.
Victor Coal Co. v. Muir, 20 Colo. 320, 38 P. 378, 26
L.R.A. 435; Hoiwerson v. Railway Co., 157 Mo.
216, 57 S.W. 770, 50 L.R.A. 850.
Also, the failure to exercise ordinary care after dis-
covering a person to be in a position of peril. Cowan
v. Minneapolis, St. P. & S. S. M. Ry. Co., 42 N.D. 170, 172
N.W. 322, 323. It involves deliberation and malice.
Schwartz v. Johnson, 152 Tenn. 586, 280 S. W. 32, 33, 47
A.L.R. 323. "Willful negligence" implies an act intention-
ally done in disregard of another's rights, or omission to
do something to protect the rights of another after having
had such notice of those rights as would put a prudent
man on his guard to use ordinary care to avoid injury.
Covert v. Rockford & I. Ry. Co., 299 Ill. 288, 132 N.E. 504,
505. There is no proof of what is called "willful negli-
gence," unless it is shown that defendant discovered plain-
tiff's peril at such a time and under such circumstances
as offered an opportunity, and in consequence imposed a
duty on defendant, to take some step to prevent the injury.
It is the failure in such a duty that is willful negligence,
so called. Westerberg v. Motor Truck Service Co., 158
Minn. 202, 197 N.W. 98, 99. A charge of "willful and wan-
ton negligence" does not signify degrees of negligence, but
the words have reference to the intent, which must have
been to do the wrongful act, but not to inflict the result-
ing injury ; otherwise, it would be a willful and not a neg-
ligent injury. Westre v. Chicago, M. & St. P. Ry. Co.,
C.C.A.S.D., 2 F.2d 227, 229.
NEGLIGENCE, ESTOPPEL BY. An estoppel
which occurs when one who is under a legal duty,
either to the person injured or to the public, to
act with due care, fails to do so, and such failure
is the natural and proximate cause of misleading
that person to alter his position. Bradford v. Ins.
Co., C.C.A.Pa., 102 F. 48, 43 C.C.A. 310, 49 L.R.A.
530; Central R. R. Co. of New Jersey v. McCart-
ney, 68 N.J.Law, 165, 52 Atl. 575; Brown & Co. v.
Ins. Co., 42 Md. 384, 20 Am.Rep. 90; 1 C. P. D.
578; 1905, 1 K. B. 677; Bigelow, Est. 6th Ed. 711.
An estoppel arises when one by acts, representa-
tions, intentionally or negligently, induces another
to change his position for the worse. Smith v.
Vara, 136 Misc. 500, 241 N.Y.S. 202, 209.
An estoppel arises when one by acts, representa-
tions, or admissions, or by silence when he ought
to speak, intentionally or through culpable negli-
gence, induces another to believe certain facts to
exist and such other rightfully relies and acts on
such belief so that he will be prejudiced if the for-
mer is permitted to deny the existence of such
facts. Postal v. Home State Bank for Savings,
284 Mich. 220, 279 N.W. 488, 491. American Ex-
change Nat. Bank v. Winder, 198 N.C. 18, 150 S.E.
489, 491.
Estoppel may exist where a party has led an-
other into the belief of a certain state of facts
by conduct of culpable negligence, calculated to
have that result, and the other party has acted
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NEGOTIABLE
upon such belief to his prejudice. Scott v. First
Nat. Bank, 343 Mo. 77, 119 S.W.2d 929, 938.
The phrase "estoppel by negligence" has been
characterized as "an expression usual but not ac-
curate, since negligence prevents a right of action
accruing, estoppel a right that has accrued from
being set up"; 2 Beven, Negl. 1332. See a discus-
sion of the doctrine, with critical examination of
the English cases, in 15 L. Q. R. 384.
NEGLIGENCE IN LAW. "Actionable negligence"
or "negligence in law" grows out of nonobservance
of a duty prescribed by law. Kingery v. Donnell,
222 Iowa 241, 268 N.W. 617, 620.
NEGLIGENCE PER SE. Conduct, whether of ac-
tion or omission, which may be declared and
treated as negligence without any argument or
proof as to the particular surrounding circum-
stances, either because it is in violation of a stat-
ute or valid municipal ordinance, or because it is
so palpably opposed to the dictates of common pru-
dence that it can be said without hesitation or
doubt that no careful person would have been
guilty of it. Missouri Pac. Ry. Co. v. Lee, 70 Tex.
496, 7 S.W. 857; Murray v. Missouri Pac. R. Co.,
101 Mo. 236, 13 S.W. 817, 20 Am.St.Rep. 601. As
a general rule, the violation of a public duty, en-
joined by law for the protection of person or prop-
erty, constitutes. Chicago, R. I. & P. Ry. Co. v.
Pitchford, 44 Okl. 197, 143 P. 1146, 1150; Kava-
nagh v. New York, 0. & W. Ry. Co., 196 App.Div.
384, 187 N.Y.S. 859, 860.
NEGLIGENT. One is not "negligent" unless he
fails to exercise that degree of reasonable care
that would be exercised by person of ordinary pru-
dence under all the existing circumstances in view
of probable danger of injury. Pulford v. Mouw,
279 Mich. 376, 272 N.W. 713, 714.
Synonymous with "careless." Delmore v. Kansas City
Hardwood Flooring Co., 90 Kan. 29, 133 P. 151, 47 L.R.A.,
N.S., 1220. Sometimes regarded as synonymous with
"wrongful." Belmont v. City of New York, 191 App.Div.
717, 182 N.Y.S. 173, 175.
The word is often used to include all conduct which, al-
though not intended to invade any legally protected inter-
est, has the element of social fault. Universal Concrete
Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 847.
NEGLIGENT ESCAPE. Where prisoner escapes
through officer's negligence. Hershey v. People,
91 Colo. 113, 12 P.2d 345, 347.
Where a party arrested or imprisoned escapes
against the will of him who arrests or imprisons
him, and is not freshly pursued and taken again
before he has been lost sight of. State v. Wedin,
85 N.J.L. 399, 89 A. 753, 754.
NEGLIGENT OFFENSE. One which ensues from
a defective discharge of a duty, which defect could
have been avoided by the exercise of that care
which is usual, under similar circumstances, with
prudent persons of the same class. People v. Gay-
dica, 122 Misc.Rep. 31, 203 N.Y.S. 243, 258.
NEGLIGENT VIOLATION OF STATUTE. One
occasioned by or accompanied with negligent con-
duct. Hamrick v. McCutcheon, 101 W.Va. 485, 133
S.E. 127, 128.
NEGLIGENTIA. Lat. In the civil law, careless-
ness; inattention; the omission of proper care or
forethought. The term is not exactly equivalent
to our "negligence," inasmuch as it was not any
negligentia, but only a high or gross degree of it,
that amounted to culpa, (actionable or punishable
fault.)
NEGLIGENTIA SEMPER HABET INFORTUN-
IUM COMITEM. Negligence always has misfor-
tune for a companion. Co. Litt. 246b; Shep. Touch.
476.
NEGLIGENTLY. Without due caution and cir-
cumspection. People v. Pociask, 96 P.2d 788,
791, 14 Cal.2d 679.
The absence of ordinary care, which is such care as an
ordinarily prudent person would exercise for his own pro-
tection. Jones v. Commonwealth, 213 Ky. 356, 281 S.W.
164, 167. Equivalent of improperly. Cairnes v. Hillman
Drug Co., 214 Ala. 545, 108 So. 362, 364. "Inadvertently"
and "negligently" are synonymous. Meyerstein v. Burke,
193 Cal. 105, 222 P. 810.
NEGLIGENTLY DONE. The doing of an act
where ordinary care required that it should not
have been done at all, or that it should have been
done in some other way, and where the doing of
the act was not consistent with the exercise of
ordinary care under the circumstances. Curtis v.
Mauger, 186 Ind. 118, 114 N.E. 408, 409.
NEGOCE. Fr. Business; trade; management of
affairs.
NEGOTIABILITY. In mercantile law, transfer-
able quality. That quality of bills of exchange
and promissory notes which renders them trans-
ferable from one person to another, and from pos-
sessing which they are emphatically termed "nego-
tiable paper." 3 Kent, Comm. 74, 77, 89, et seq.
Story, Bills, § 60.
NEGOTIABLE. Capable of being transferred by
indorsement or delivery so as to pass to holder the
right to sue in his own name and take free of
equities against assignor payee. Fischbach &
Moore v. Philadelphia Nat. Bank, 134 Pa.Super.
84, 3 A.2d 1011, 1012.
An instrument embodying an obligation for the payment
of money is called "negotiable" when the legal title to the
instrument itself and to the whole amount of money ex-
pressed upon its face, with the right to sue therefor in his
own name, may be transferred from one person to another
without a formal assignment, but by mere indorsement
and delivery by the holder or by delivery only. 1 Daniel,
Nego. Inst. § 1; Walker v. Ocean Bank, 19 Ind. 247; Rob-
inson v. Wilkinson, 38 Mich. 299.
Quasi Negotiable. "Quasi negotiable" describes the na-
ture of instruments which, while not negotiable, in sense
of law merchant, are so framed and dealt with as frequent-
ly to convey as good title to transferee as if they were
negotiable. A bill of lading is 'a quasi negotiable instru-
ment. National Bank of Savannah v. Kershaw Oil Mill,
C. C. A.S. C. , 202 F. 90, 94.
NEGOTIABLE INSTRUMENTS. Any written
securities which 'hay be transferred by indorse-
ment and delivery or by delivery merely, so as
to vest in the indorsee the legal title, and thus en-
able him to sue thereon in his own name. Or,
more technically, those instruments which not on-
ly carry the legal title with them by indorsement
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NEGOTIABLE
or delivery, but carry as well, when transferred
before maturity, the right of the transferee to de-
mand the full amounts which their faces call for.
Daniel, Neg. Inst. § la.
A negotiable instrument is a written promise or request
for the payment of a certain sum of money to order or
bearer. Civ.Code Cal. § 3087.
A genera) name for bills, First Nat. Bank v. Rochamora,
193 N.C. 1, 136 S.E. 259, 261; notes, checks, Kansas City
Casualty Co. v. Westport Ave. Bank, 191 Mo.App. 287, 177
S.W. 1092, 1094; Santa Marina Co. v. Canadian Bank of
Commerce, C.C.A.CaI., 254 F. 391, 393; trade acceptances,
Federal Commercial & Savings Bank v. International Clay
Machinery Co., 230 Mich. 33, 203 N.W. 166, 43 A.L.R. 1245;
certain bonds, Grosfleld v. First Nat. Bank, 73 Mont. 219,
236 P. 250, 254; Stevens v. Berkshire St. Ry. Co., 247 Mass.
399, 142 N.E. 59, 60; letters of credit, and other negotiable
written securities.
Under the Uniform Negotiable Instruments Act, an
instrument, to be negotiable, must be in writing and
signed; must contain an unconditional promise or order to
pay a certain sum of money on demand, or at a fixed and
determinable future time; it must be payable to order or
to bearer, and where it is addressed to the drawee, he must
be named or otherwise indicated with reasonable certainty;
its negotiability is not affected by the fact that it is not
dated, or that it bears a seal, or that it does not specify the
value given or that any value was given.
NEGOTIABLE WORDS. Words and phrases
which impart the character of negotiability to
bills, notes, checks, etc., in which they are inserted;
for instance, a direction to pay to A. "or order" or
"bearer."
NEGOTIATE. To transact business, to treat with
another respecting a purchase and sale, to hold
intercourse, to bargain or trade, to conduct com-
munications or conferences. It is that which pass-
es between parties or their agents in the course
of or incident to the making of a contract and is
also conversation in arranging terms of contract.
Werner v. Hendricks, 121 Pa.Super. 46, 182 A. 748,
749.
To discuss or arrange a sale or bargain; to arrange the
preliminaries of a business transaction. Also to sell or dis-
count negotiable paper, or assign or transfer it by indorse-
ment and delivery. Palmer v. Ferry, 6 Gray, Mass., 420;
Newport Nat. Bank v. Board of Education, 114 Ky. 87, 70
S.W. 186.
To conclude by bargain, treaty, or agreement. Morton
Furniture Co. v. Dubuque Fire & Marine Ins. Co., 287
Mass. 170, 191 N.E. 637, 638.
An instrument is "negotiated" when transferred from
one person to another so as to constitute transferee holder
thereof. Ficklin v. Nickles, 238 Ky. 591, 38 S.W.2d 456,
459.
NEGOTIATION. The deliberation, discussion, or
conference upon the terms of a proposed agree-
ment; the act of settling or arranging the terms
and conditions of a bargain, sale, or other business
transaction.
The act by which a. bill of exchange or prom-
issory note is put into circulation by being passed
by one of the original parties to another person.
NEGOTIORUM GESTIO. Lat. In the civil law,
literally, a doing of business or businesses. A
species of spontaneous agency, or an interference
by one in the affairs of another, in his absence,
from benevolence or friendship, and without au-
thority. 2 Kent, Comm. 616, note; Inst. 3, 28, 1.
NEGOTIORUM GESTOR. Lat. In the civil law,
a transactor or manager of business; a person vol-
untarily constituting himself agent for another;
one who, without any mandate or authority, as-
sumes to take charge of an affair or concern for
another person, in the latter's absence, but for his
interest.
One who spontaneously, and without the knowl-
edge or consent of the owner, intermeddles with
his property, as to do work on it, or to carry it to
another place, etc. Story, Bailm. § 189.
NEGRO: The word "negro" means a black man,
one descended from the African race, and does not
commonly include a mulatto. Felix v. State, 18
Ala. 720. But the laws of the different states are
not uniform in this respect, some including in the
description "negro" one who has one-eighth or
more of African blood.
Term "Negro" means necessarily person of col-
or, but not every person of color is "negro." Rice
v. Gong Lum, 139 Miss. 760, 104 So. 105, 109.
NEIFE, NAIF, NATIVUS. In old English law, a
woman who was born a villein, or a bond-woman.
1 Steph. Corn. 133.
NEIGHBOR. One who lives in close proximity to
another. In a grant relating to the use of water
by neighbors, it was limited to the next adjoining
farm; 1 A. C., 22 (So. Africa).
NEIGHBORHOOD. A place near; an adjoining
or surrounding district; a more immediate vicin-
ity; vicinage. Langley v. Barnstead, 63 N.H. 246;
Madison v. Morristown Gaslight Co., 65 N.J.Eq.
356, 54 A. 439; Connally v. General Const. Co., 269
U.S. 385, 46 S.Ct. 126, 129, 70 L.Ed. 322.
It is not synonymous with territory or district, but is a
collective noun, with the suggestion of proximity, and
refers to the units which make up its whole, as well as to
the region which comprehends those units. A district or
locality, especially when considered with relation to its
inhabitants or their interests. Lindsay LIT. Co. v. Mehr-
tens, 97 Cal. 676, 32 P. 803.
In ordinary and common usage "locality" is synonymous
in meaning with "neighborhood," and neither connote
large geographical areas with widely diverse interests.
Lukens Steel Co. v. Perkins, 70 App.D.C. 354, 107 F.2d 627,
631.
As used with reference to a person's reputation, "neigh-
borhood" means in general any community or society
where person is well known and has established a reputa-
tion. Craven v. State, 22 Ala. App. 39, 111 So. 767, 769.
NEITHER PARTY. An abbreviated form of dock-
et entry, meaning that, by agreement, neither of
the parties will further appear in court in that suit.
Gendron v. Hovey, 98 Me. 139, 56 A. 583; White
v. Beverly Bldg. Ass'n, 221 Mass. 15, 108 N.E. 921,
922.
NEMBDA, In Swedish and Gothic law, a jury. 3
Bl. Comm. 349, 359.
NEMINE CONTRADICENTE. Lat. No one dis-
senting; no one voting in the negative. A phrase
used to indicate the unanimous consent of a court
or legislative body to a judgment, resolution, vote,
or motion. Commonly abbreviated "nem. con."
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NEMO DUOBUS
NEMINEM L1EDIT QUI JURE SUO UTITUR. He
who stands on his own rights injures no one.
NEMINEM OPORTET ESSE SAPIENTIOREM
LEGIBUS. Co. Litt. 97b. No man ought to be
wiser than the laws.
NEMO. Lat. No one; no man. The initial word
of many Latin phrases and maxims, among which
are the following:
NEMO ADMITTENDUS EST INHABILITARE
SEIPSUM. Jenk. Cent. 40. No man is to be ad-
mitted to incapacitate himself.
NEMO AGIT IN SEIPSUM. No man acts against
himself. Jenk. Cent. p. 40, case 76. A man cannot
be a judge and a party in his own cause. Id.;
Broom, Max. 216n.
NEMO ALIENIE REI, SINE SATISDATIONE,
DEFENSOR IDONEUS INTELLIGITUR. No
man is considered a competent defender of anoth-
er's property, without security. A rule of the Ro-
man law, applied in part in admiralty cases. 1
Curt. 202.
NEMO ALIENO NOMINE LEGE AGERE P0-
TEST. No one can sue in the name of another.
Dig. 50, 17, 123.
NEMO ALIQUAM PARTEM RECTE INTELLI-
GERE POTEST, ANTEQUAM TOTUM ITERUM
ATQUE ITERUM PERLEGERIT. No one can
properly understand any part of a thing till he 'has
read through the whole again and again. 3 Co.
59; Broom, Max. 593.
NEMO ALLEGANS SUAM TURPITUDINEM
AUDIEN DUS EST. No one alleging his own
turpitude is to be heard as a witness. 4 Inst. 279;
12 Pick., Mass., 567. This is not a rule of evi-
dence, but applies to a party seeking to enforce a
right founded on an illegal consideration; 94 U.S.
426, 24 L.Ed. 204.
NEMO BIS PUNITUR PRO EODEM DELICTO.
No man is punished twice for the same offense.
4 Bl. Comm. 315; 2 Hawk. P. C. 377.
NEMO COGITATIONIS P(ENAM PATITUR. No
one suffers punishment on account of his thoughts.
Tray. Lat. Max. 362.
NEMO COGITUR REM SUAM VENDERE, ETI-
AM JUSTO PRETIO. No man is compelled to
sell his own property, even for a just price. 4
Inst. 275.
NEMO CONTRA FACTUM SlUUM VENIRE P0-
TEST. No man can contravene or contradict his
own deed. 2 Inst. 66. The principle of estoppel
by deed. Best, Ev. p. 408, § 370.
NEMO DAMNUM FACIT, NISI QUI ID FECIT
QUOD FACERE JUS NON HABET. No one is
considered as doing damage, unless he who is
doing what he has no right to do. Dig. 50, 17, 151.
NEMO DARE POTEST QUOD NON HABET. No
man can give that which he has not. Fleta, lib.
3, c. 15, § 8.
NEMO DAT QUI NON HABET. He who hath
not cannot give. Jenk. Cent. 250; Broom, Max.
499n; 6 C. B., N. S., 478.
NEMO DE DOMO SUA EXTRA!!! POTEST. No
one can be dragged out of his own house. In
other words, every man's house is his castle. Dig.
50, 17, 103.
NEMO DEBET ALIENA JACTURA LOCUPLE-
TARI. No one ought to gain by another's loss.
2 Kent 336.
NEMO DEBET BIS PUNIRI PRO UNO DELICTO.
No man ought to be punished twice for one of-
fense. 4 Coke, 43a; 11 Coke, 59b. No man shall
be placed in peril of legal penalties more than
once upon the same accusation. Broom, Max. 348.
NEMO DEBET BIS VEXARI PRO EADEM CAU-
SA. No one should be twice harassed for the
same cause. 2 Johns., N.Y., 182; 13 Johns., N.Y.,
153.
NEMO DEBET BIS VEXARI [SI CONSTET CUR-
LzE  SIT] PRO UNA ET EADEM CAUSA.
No man ought to be twice troubled or harassed
[if it appear to the cotrt that it is] for one and the
same cause. 5 Coke, 61a; 5 Pet. 61, 8 L.Ed. 25;
2 Mass. 355; 17 Mass. 425. No man can be sued
a second time for the same cause of action, if once
judgment has been rendered. See Broom, Max.
327, 348. No man can be held to bail a second
time at the suit of the same plaintiff for the same
cause of action. 1 Chit. Archb. Pr. 476.
NEMO DEBET ESSE JUDEX IN PROPRIA
CAUSA. No man ought to be a judge in his own
cause. 12 Coke, 114a. A maxim derived from the
civil law. Cod. 3, 5. Called a "fundamental rule
of reason and of natural justice." Burrows, Sett.
Cas. 194, 197.
NEMO DEBET IMMISCERE SE REI AD SE NI-
HIL PERTINENT!. No one should intermeddle
with a thing that in no respect concerns him.
Jenk. Cent. p. 18, case 32.
NEMO DEBET IN COMMUNIONE INVITUS
TENERI. No one should be retained in a partner-
ship against his will. Selden v. Vermilya, 2 Sandf.,
N.Y., 568, 593; United Ins. Co. v. Scott, 1 Johns.,
N.Y., 106, 114.
NEMO DEBET LOCUPLETARI ALIENA JAC-
TURA. No one ought to be enriched by another's
loss. Dig. 6, 1, 48, 65; 2 Kent, Comm. 336; 1
Kames, Eq. 331.
NEMO DEBET LOCUPLETARI EX ALTERIUS
INCOMMODO. No one ought to be made rich out
of another's loss. Jenk. Cent. 4; Taylor v. Bald-
win, 10 Barb., N.Y., 626, 633.
NEMO DEBET REM SUAM SINE FACTO AUT
DEFECTU SUO AMITTERE. No man ought to
lose his property without his own act or default.
Co. Litt. 263a.
NEMO DUOBUS UTATUR OFFICIIS. 4 Irwt. 100.
No one should hold two offices, e., at the same
time.
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NEMO EJUSDEM
NEMO EJUSDEM TENEMENTI SIMUL POTEST
ESSE HIERES ET DOMINUS. No one can at the
same time be the heir and the owner of the same
tenement. See 1 Reeve, Eng. Law, 106.
NEMO ENIM ALIQUAM PARTEM RECTE IN-
TELLIGERE POSSIT ANTEQUAM TOTUM
ITERUM ATQUE ITERUM PERLEGERIT. No
one is able rightly to understand one part before
he has again and again read through the whole.
Broom, Max. 593.
NEMO EST HIERES VIVENTIS. No one is the
heir of a living person. Co. Litt. 8a, 22b. No one
can be heir during the life of his ancestor. Broom,
Max. 522, 523; 99 Mass. 456; 118 Mass. 345. No
person can be the actual complete heir of an-
other till the ancestor is previously dead. 2 Bl.
Comm. 208.
NEMO EST SUPRA LEGES. No one is above the
law. Lofft, 142.
NEMO EX ALTERIUS FACTO PRZEGRAVARI
DEBET. No man ought to be burdened in conse-
quence of another's act. 2 Kent, Comm. 646.
NEMO EX CONSILIO OBLIGATUR. No man is
bound in consequence of his advice. Mere advice
will not create the obligation of a mandate. Story,
Bailm. § 155.
NEMO EX DOLO SUO PROPRIO RELEVETUR,
AUT AUXILIUM CAPIAT. Let no one be re-
lieved or gain an advantage by his own fraud. A
civil law maxim.
NEMO EX PROPRIO DOLO CONSEQUITUR AC-
TIONEM. No one maintains an action arising out
of his own wrong. Broom, Max. 297.
NEMO EX SUO DELICTO MELIOREM SUAM
CONDITIONEM FACERE POTEST. No one can
make his condition better by his own misdeed.
Dig. 50, 17, 134, 1.
NEMO IN PROPRIA CAUSA TESTIS ESSE DEB-
ET. No one ought to be a witness in his own
cause. 3 Bl. Comm. 371.
NEMO INAUDITUS CONDEMNARI DEBET SI
NON SIT CONTUMAX. No man ought to be con-
demned without being heard unless he be con-
tumacious. Jenk. Cent. p. 18, case 12, in marg.
NEMO JUS SIBI DICERE POTEST. No one can
declare the law for himself. No one is entitled to
take the law into his own hands. Tray. Lat. Max.
366.
NEMO MILITANS DEO IMPLICETUR SECU-
LARIBUS NEGOTIIS. No man who is warring
for [in the service of] God should be involved in
secular matters. Co. Litt. 70b. A principle of the
old law that men of religion were not bound to
go in person with the king to war.
NEMO NASCITUR ARTIFEX. Co. Litt. 97. No
one is born an artificer.
NEMO PATRIAM IN QUA NATUS EST EX-
UERE, NEC LIGEANTIZE DEBITUM EJURARE
POSSIT. No man can renounce the country in
which he was born, nor abjure the obligation of
his allegiance. Co. Litt. 129a; Broom, Max. 75;
Fost. Cr. Law, 184.
NEMO PLUS COMMODI HIEREDI SUO RELIN-
QUIT QUAM IPSE HABUIT. No one leaves a
greater benefit to his heir than he had himself.
Dig. 50, 17, 120.
NEMO PLUS JURIS AD ALIUM TRANSFERRE
POTEST QUAM IPSE HABET. No one can trans-
fer more right to another than he has himself.
Dig. 50, 17, 54; Broom, Max. 467, 469; 2 Kent 324;
5 Co. 113; 10 Pet. 161, 175, 9 L.Ed. 382.
NEMO POTEST CONTRA RECORDUM VERIF1-
CARE PER PATRIAM. No one can verify by the
country against a record. 2 Inst. 380. The issue
upon matter of record cannot be to the jury. A
maxim of old practice.
NEMO POTEST ESSE DOMINUS ET HiERES.
No man can be both owner and heir. Hale, Com.
Law, c. 7.
NEMO POTEST ESSE SIMUL ACTOR ET JU-
DEX. No one can be at once suitor and judge.
Broom, Max. 117.
NEMO POTEST ESSE TENENS ET DOMINUS.
No man can be both tenant and lord [of the same
tenement.] Gilb. Ten. 142.
NEMO POTEST EXUERE PATRIAM. No man
can renounce his own country. 18 L. Q. R. 51.
NEMO POTEST FACERE PER ALIUM QUOD
PER SE NON POTEST. No one can do that by
another which he cannot do of himself. Jenk.
Cent. p. 237, case 14. A rule said to hold in orig-
inal grants, but not in descents; as where an of-
fice descended to a woman, in which case, though
she could not exercise the office in person, she
might by deputy. Id.
NEMO POTEST FACERE PER OBLIQUUM
QUOD NON POTEST FACERE PER DIRECTUM.
No man can do that indirectly which he cannot
do directly. 1 Eden, 512.
NEMO POTEST MUTARE CONSILIUM SUUM
IN ALTERIUS INJURIAM. No man can change
his purpose to another's injury. Dig. 50, 17, 75;
Broom, Max. 34.
NEMO POTEST NISI QUOD DE JURE POTEST.
No one is able to do a thing, unless he can do it
lawfully. 67 Ill.App. 80.
NEMO POTEST PLUS JURIS AD ALIUM
TRANSFERRE QUAM IPSE HABET. Co. Litt.
309; Wing. Max. 56. No one can transfer a great-
er right to another than he himself has.
NEMO POTEST SIBI DEBERE. No one can owe
to himself.
NEMO PR2ESENS NISI INTELLIGAT. One is
not present unless he understands.
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NEPOTISM
NEMO PRIESUMITUR ALIENAM POSTERITA-
TEM SIVE PRIETULISSE. No man is presumed
to have preferred another's posterity to his own.
Wing. Max. p. 285, max. 79.
NEMO PRIESUMITUR DONARE. No one is pre-
sumed to give. Haren v. Foster, 9 Pick., Mass.,
128, 19 Am.Dec. 353.
NEMO PRIESUMITUR ESSE IMMEMOR MIZE
ZETERNIE SALUTIS, ET MAXIME IN ARTIC-
ULO MORTIS. 6 Coke, 76. No one is presumed to
be forgetful of his own eternal welfare, and par-
ticularly at the point of death.
NEMO PRIESUMITUR LUDERE IN EXTREMIS.
No one is presumed to trifle at the point of death.
NEMO PRIESUMITUR MALUS. No one is pre-
sumed to be bad.
NEMO PROHIBETUR PLURES NEGOTIATION-
ES SIVE ARTES EXERCERE. No one is prohib-
ited from following several kinds of business or
several arts. 11 Coke, 54a. The common law doth
not prohibit any person from using several arts or
mysteries at his pleasure. Id.
NEMO PROHEBETUR PLURIBUS DEFENSION-
IBUS UTI. Co. Litt. 304a. No one is prohibited
from making use of several defenses.
NEMO PRUDENS PUNIT UT PRXTERITA RE-
VOCENTUR, SED UT FUTURA PRIEVENIAN-
TUR. No wise man punishes in order that past
things may be recalled, but that future wrongs
may be prevented. 2 Bulst. 173.
NEMO PUNITUR PRO ALIENO DELICTO.
Wing. Max. 336. No one is punished for another's
wrong.
NEMO PUNITUR SINE INJURIA, FACTO, SEU
DEFALTA. No one is punished unless for some
wrong, act, or default. 2 Inst. 287.
NEMO QUI CONDEMNARE POTEST, ABSOLV-
ERE NON POTEST. No one who may condemn
is unable to acquit. Dig. 50, 17, 37.
NEMO SIBI ESSE JUDEX VEL SUIS JUS DI-
CERE DEBET. No man ought to be his own
judge, or to administer justice in cases where
his relations are concerned. 12 Co. 113; Cod. 3, 5,
1; Broom, Max. 116, 124.
NEMO SINE ACTIONE EXPERITUR, ET HOC
NON SINE BREVE SIVE LIBELLO CONVEN-
TIONALI. No one goes to law without an action,
and no one can bring an action without a writ or
bill. Bract. fol. 112.
NEMO TENETUR AD IMPOSSIBILE. No one is
bound to an impossibility. Jenk. Cent. 7; Broom,
Max. 244.
NEMO TENETUR ARMARE ADVERSARIUM
CONTRA SE. Wing. Max. 665. No one is bound
to arm his adversary against himself.
NEMO TENETUR DIVINARE. No man is bound
to divine, or to have foreknowledge of, a future
event. 10 Coke, 55a.
NEMO TENETUR EDERE INSTRUMENTA
CONTRA SE. No man is bound to produce writ-
ings against himself. A rule of the Roman law,
adhered to in criminal prosecutions, but departed
from in civil questions. Bell.
NEMO TENETUR INFORMARE QUI NESCIT,
SED QUISQUIS SCIRE QUOD INFORMAT.
Branch, Princ. No one is bound to give informa-
tion about things he is ignorant of, but every one
is bound to know that which he gives information
about.
NEMO TENETUR JURARE IN SUAM TURPI-
TUDINEM. No one is bound to swear to the fact
of his own criminality; no one can be forced to
give his own oath in evidence of his guilt. Bell;
Halk. 100.
NEMO TENETUR PRODERE SEIPSUM. No one
is bound to betray himself. In other words, no
one can be compelled to criminate himself. Broom,
Max. 968.
NEMO TENETUR SEIPSUM ACCUSARE. Wing.
Max. 486. No one is bound to accuse himself; 14
M. & W. 286; 107 Mass. 181.
NEMO TENETUR SEIPSUM INFORTUNIIS ET
PERICULIS EXPONERE. No one is bound to ex-
pose himself to misfortunes and dangers. Co. Litt.
253b.
NEMO TENETUR SEIPSUM PRODERE. No one
is bound to betray himself. 10 N.Y. 10; 7 How.
Prac., N.Y., 57, 58; Broom, Max. 968.
NEMO UNQUAM JUDICET IN SE. No one can
ever be a judge in his own cause.
NEMO UNQUAM VIR MAGNUS FUIT, SINE AL-
IQUO DIVINO AFFLATU. No one was ever a
great man without some divine inspiration. Ci-
cero.
NEMO VIDETUR FRAUDARE EOS QUI SCIUNT
ET CONSENTIUNT. No one seems [is supposed]
to defraud those who know and assent [to his
acts.] Dig. 50, 17, 145.
NEMY. L. Fr. Not. Litt. § 3.
NEPHEW. In legal usage only children of broth-
ers and sisters are called "nephews" and "nieces,"
children of husband's or wife's brothers and sisters
being so called only by courtesy. In re Lamber-
ton's Estate, 105 Pa.Super. 348, 161 A. 596, 597.
The term, as used in wills and other documents, may
include the children of half brothers and sisters and also
grandnephews, if such be the apparent intention, but not
the nephew of a husband or wife, and not (presumptively)
a nephew who is illegitimate. Shephard v. Shephard, 57
Conn. 24, 17 A. 173; Lyon v. Lyon, 88 Me. 395, 34 A. 180;
In re Logan, 131 N.Y. 456, 30 N.E. 485.
NEPOS. Lat. A grandson.
NEPOTISM. Bestowal of patronage by public of-
ficers in appointing others to positions by reason
of blood or marital relationship to appointing au-
thority. State ex rel. Robinson v. Keefe, 111 Fla,
701, 149 So. 638.
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NEPTIS
NEPTIS. Lat. A granddaughter; sometimes
great-granddaughter.
NEPUOY. In Scotch law, a grandson. Skene.
NEQUE LEGES NEQUE SENATUS CONSULTA
ITA SCRIBI POSSUNT UT OMNIS CASUS QUI
QUANDOQUE IN SEDIRIUNT COMPREHEND-
ATUR; SED SUFFICIT EA QUAE PLAERUM-
QUE ACCIDUNT CONTINERI. Means that nei-
ther laws nor acts of a parliament can be so writ-
ten as to include all actual or possible cases; it is
sufficient if they provide for those things which
frequently or ordinarily may happen. State ex rel.
Dowling v. Butts, 111 Fla. 630, 149 So. 746, 757, 89
A.L.R. 946.
NERVINE. A descriptive word meaning a nerve
tonic or a remedy for disorder of the nerves. Rich-
mond Remedies Co. v. Dr. Miles Medical Co., C.C.
A.Mo., 16 F.2d 598, 601.
NERVOUSNESS. A species of mental suffering.
Southern Ry. in Kentucky v. Owen, 156 Ky. 827,
162 S.W. 110, 111.
NET. Clear of anything extraneous, with all de-
ductions, such as charges, expenses, discounts,
commissions, taxes, etc., made. Cleveland v. Glas-
sell, 117 Cal.App. 713, 4 P.2d 596, 598.
That which remains after deducting all charges
and outlay. John Fink Agency v. Dougherty, 90
Pa.Super. 443, 445.
NET ASSETS. A bookkeeping balance obtained
by subtracting company's liabilities from its gross
assets. Commonwealth v. Union Trust Co. of
Pittsburgh, 345 Pa. 298, 27 A.2d 15, 17.
NET BALANCE. The proceeds of sale, after de-
ducting expenses. Evans v. Wain, 71 Pa. 69;
Meserve v. Smith Bros., 56 Cal.App. 683, 206 P.
105.
NET EARNINGS. See Earnings.
NET ESTATE. Under estate tax statute the term
means that which is left of the gross estate after
the deduction of proper and lawful items in the
course of settlement. United States Trust Co. of
New York v. Sears, D.C.Conn., 29 F.Supp. 643, 649.
NET INCOME. Amount remaining after proper
current charges have been made against gross in-
come. In re Matthews' Estate, 210 Wis. 109, 245
N.W. 122.
NET LEVEL ANNUAL PREMIUM. An amount
which, if exacted from a group of policyholders
and increased by interest, will yield a sum suffi-
cient to satisfy all death claims. The result is gen-
erally referred to as the "net" or "net level pre-
mium" of the policy. Fox v. Mutual Ben. Life Ins.
Co., C.C.A.Mo., 107 F.2d 715, 718.
NET LOSS. Any deficit from operations, plus any
shrinkage in value of plant investment. War Min-
erals Relief Act March 2, 1919, § 5, 50 U.S.C.A. §
80 note; Act Feb. 13, 1929, c. 182, 45 Stat. 1166.
Ickes v. U. S. ex rel. Chestatee Pyrites & Chem-
ical Corporation, D.C., 289 U.S. 510, 53 S.Ct. 700,
77 L.Ed. 1352.
NET PREMIUM. In the business of life insur-
ance, this term is used to designate that portion of
the premium which is intended to meet the cost of
the insurance, both current and future; its amount
is calculated upon the basis of the mortality tables
and upon the assumption that the company will
receive a certain rate of interest upon all its as-
sets; it does not include the entire premium paid
by the assured, but does include a certain sum for
expenses. Fuller v. Metropolitan L. Ins. Co., 70
Conn. 647, 41 A. 4.
NET PRICE. The lowest price, after deducting
all discounts.
NET PROCEEDS. Gross proceeds, less charges
which may be rightly deducted. Pflueger v. Unit-
ed States, 73 App.D.C. 364, 121 F.2d 732, 736.
NET PROFITS. What remains after deducting
all liabilities, including capital stock, from present
value of all assets of corporation, or that which re-
mains as clear gain of corporation, after deducting
from its income all expenses incurred and losses
sustained in the conduct and prosecution of its
business. Guaranty Trust Co. of New York v.
Grand Rapids, G. H. & M. Ry. Co., D.C.Mich., 7
F.Supp. 511, 517.
NET REVENUES. Revenues remaining after pro-
viding for the sinking fund, interest, and current
expenses of the plant. City of Raymondville v. Mc-
Cann, Tex.Civ.App., 54 S.W.2d 1049, 1050.
NET SINGLE PREMIUM. Aggregate of future
yearly costs of insurance, severally discounted to
age from which computation is made. Magers v.
Northwestern Mut. Life Ins. Co., 348 Mo. 96, 152
S.W.2d 148, 152.
Premium which, if exacted from a group of pol-
icyholders and immediately invested at the as-
sumed rate of interest, will yield in the aggregate
a sum exactly sufficient to pay all death claims
as they mature providing the mortality rate is in
accord with the table used. Fox v. Mutual Ben.
Life Ins. Co., C.C.A.Mo., 107 F.2d 715, 718.
NET TONNAGE. The cubic contents of the in-
terior of a vessel, when the spaces occupied by the
crew and by propelling machinery are deducted,
numbered in tons. Kiessig v. San Diego County,
51 Cal.App.2d 47, 124 P.2d 163, 165.
NET VALUE. Accumulation of balances of past
net premiums not absorbed in carrying risk. Fox
v. Mutual Ben. Life Ins. Co., C.C.A.Mo., 107 F.2d
715, 718, 719. Policy "reserve". Magers v. North-
western Mut. Life Ins. Co., 348 Mo. 96, 152 S.W.2d
148, 152, 153.
NET WEIGHT. The weight of an article or col-
lection of articles, after deducting from the gross
weight the weight of the boxes, coverings, casks,
etc., containing the same. The weight of an ani-
mal dressed for sale, after rejecting hide, offal,
etc.
NET WORTH. Remainder after deduction of lia-
bilities from assets. W. H. Miner, Inc. v. Peer-
less Equipment Co., C.C.A.Ill., 115 F.2d 650, 655.
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NEW
NETHER HOUSE OF PARLIAMENT A name
given to the English house of commons in the time
of Henry VIII.
NEURASTHENIA. In medical jurisprudence, a
condition of weakness or exhaustion of the general
nervous system, giving rise to various forms of
mental and bodily inefficiency.
NEUTRAL. In international law, indifferent; im-
partial; not engaged on either side; not taking an
active part with either of the contending states.
In an international war, the principal hostile pow-
ers are called "belligerents;" those actively 'co-op-
erating with and assisting them, their "allies;"
and those taking no part whatever, "neutrals."
NEUTRAL PROPERTY. Property which belongs
to citizens of neutral powers, and is used, treated,
and accompanied by proper insignia as such.
NEUTRALITY. The state of a nation which takes
no part between two or more other nations at war.
U. S. v. The Three Friends, 166 U.S. 1, 17 S.Ct. 495,
41 L.Ed. 897; O'Neill v. Central Leather Co., 87 N.
J.L. 552, 94 A. 789, 790, L.R.A. 1917A, 276.
NEUTRALITY LAWS. Acts of congress which
forbid the fitting out and equipping of armed ves-
sels, or the enlisting of troops, for the aid of either
of two belligerent powers with which the United
States is at peace.
NEUTRALITY PROCLAMATION. A proclama-
tion by the president of the United States, issued
on the outbreak of a war between two powers
with both of which the United States is at peace,
announcing the neutrality of the United States
and warning all citizens to refrain from any breach
of the neutrality laws.
NEVER INDEBTED, PLEA OF. A species of
traverse which occurs in actions of debt on simple
contract, and is resorted to when the defendant
means to deny in point of fact the existence of
any express contract to the effect alleged in the
declaration, or to deny the matters of fact from
which such contract would by law be implied.
Steph. Pl. 153, 156; Wharton.
NEW. As an element in numerous compound
terms and phrases of the law, this word may de-
note novelty, or the condition of being previously
unknown or of recent or fresh origin, but ordinar-
ily it is a purely relative term and is employed in
contrasting the date, origin, or character of one
thing with the corresponding attributes of another
thing of the same kind or class.
Of New. See that title.
NEW ACQUISITION. An estate derived from any
source other than descent, devise, or gift from
father or mother or any relative in the paternal or
maternal line. Webb v. Caldwell, 198 Ark. 331,
128 S.W.2d 691, 694, 122 A.L.R. 814.
NEW AND USEFUL. The phrase used in the
patent laws to describe the two qualities of an
invention or discovery which are essential to make
it patentable, viz., novelty, or the condition of hav-
ing been previously unknown, and practical util-
ity. In re Gould, 1 MacArthur, D.C. 410; Adams
v. Turner, 73 Conn. 38, 46 A. 247; Lowell v. Lewis,
1 Mason, 182, F.Cas.No.8,568.
To accomplish a new and useful result within meaning
of Rev.St. § 4886, 35 U.S.C.A. § 31, it is not necessary that
result before unknown should be brought about, but it is
sufficient if an old result is accomplished in a new and
more effective way. Hirschy v. Wisconsin-Minnesota Gas
& Electric Household Appliances Co., D.C.Minn., 18 F.2d
347, 354. An invention achieves a new result, where a
function which had been performed by other means was
performed to an efficient degree by an association of means
never before combined, though all of them were old, and
some of the changes seemed to be only in degree. Ameri-
can Ball Bearing Co. v. Finch, C.C.A.Ohio, 239 F. 885, 889.
NEW ASSETS. In the law governing the admin-
istration of estates, this term denotes assets com-
ing into the hands of an executor or administra-
tor after the expiration of the time when, by stat-
ute, claims against the estate are barred so far
as regards recourse against the assets with which
he was originally charged. Littlefield v. Eaton, 74
Me. 521; Chenery v. Webster, 8 Allen, Mass., 77.
NEW ASSIGNMENT. Under the common-law
practice, where the declaration in an action is am-
biguous, and the defendant pleads facts which are
literally an answer to it, but not to the real claim
set up by the plaintiff, the plaintiff's course is to
reply by way of new assignment; i. e., allege that
he brought his action not for the cause supposed
by the defendant, but for some other cause to
which the plea has no application. 3 Steph.Comm.
507; Sweet. Bishop v. Travis, 51 Minn. 183, 53
N.W. 461.
NEW CAUSE OF ACTION. With reference to
the amendment of pleadings, this term may refer
to a new state of facts out of which liability is
claimed to arise, or it may refer to parties who are
alleged to be entitled under the same state of facts,
or it may embrace both features. Love v. South-
ern R. Co., 108 Tenn. 104, 65 S.W. 475, 55 L.R.A.
471; Nelson v. First Nat. Bank, 139 Ala. 578, 36
So. 707, 101 Am.St.Rep. 52.
NEW FOR OLD. In making an adjustment of a
partial loss under a policy of marine insurance,
the rule is to apply the old materials towards the
payment of the new, by deducting the value of
them from the gross amount of the expenses for
repairs, and to allow the deduction of one-third
new for old upon the balance. 3 Kent, Comm. 339.
NEW INN. An inn of chancery. See Inns of
Chancery.
NEW MATTER. In pleading, matter of fact not
previously alleged by either party in the plead-
ings. Walters v. Battenfield, 21 N.M. 413, 155 P.
721, 723; Continental Gin Co. v. Arnold, 52 Okl. 569,
153 P. 160, 163.
NEW PROMISE. See Promise.
NEW STYLE. The modern system of computing
time was introduced into Great Britain A.D. 1752,
the 3d of September of that year being reckoned
as the 14th.
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NEW
NEW TRIAL. See Trial.
NEW WORKS. In the civil law, by a new work
is understood every sort of edifice or other work
which is newly commenced on any ground what-
ever. When the ancient form of work is changed,
either by an addition being made to it or by some
part of the ancient work being taken away, it is
styled also a "new work." Civ.Code La. art. 856.
NEW YEAR'S DAY. The first day of January.
The 25th of March was the civil and legal New Year's
Day, till the alteration of the style in 1752, when it was
permanently fixed at the 1st of January. In Scotland the
year was, by a proclamation, which bears date 27th of
November, 1599, ordered thenceforth to commence in that
kingdom on the 1st of January instead of the 25th of
March. Enc.Lond.
NEWGATE. The name of a prison in London,
said to have existed as early as 1207. For cen-
turies the condition of the place was horrible, but
it has been greatly improved since 1808.
NEWLY-DISCOVERED EVIDENCE. Evidence of
a new and material fact, or new evidence in rela-
tion to a fact in issue, discovered by a party to a
cause after the rendition of a verdict or judgment
therein. Wynne v. Newman, 75 Va. 816; People
v. Priori, 164 N.Y. 459, 58 N.E. 668. Testimony
discovered after trial, not discoverable before trial
by exercise of due diligence. Mode v. State, 169
Ark. 356, 275 S.W. 700, 701; State v. Blackwood,
103 Wash. 529, 175 P. 168, 169; Murphy v. Skelly,
101 N.J.Eq. 793, 138 A. 882, 884, any evidence new-
ly discovered, whether the facts existed at the time
of the trial or not. In re Wood, 140 Minn. 130, 167
N.W. 358, 359. For the requirements which such
evidence must meet before a new trial will be
granted, State v. Luttrell, 28 N.M. 393, 212 P. 739,
741; Sanchez v. State, 199 Ind. 235, 157 N.E. 1, 3;
Gonirenki v. American Steel & Wire Co., 106 Conn.
1, 137 A. 26, 28.
NEWSPAPER. A publication, usually in sheet
form, intended for general circulation, and pub-
lished regularly at short intervals, containing intel-
ligence of current events and news of general in-
terest. 4 Op.Attys.Gen. 10; Garden City News v.
Hurst, 129 Kan. 365, 282 P. 720, 722.
Official Newspaper. One designated by a state or munic-
ipal legislative body, or agents empowered by them, in
which the public acts, resolves, advertisements, and notices
are required to be published. Albany County v. Chaplin,
5 Wyo. 74, 37 P. 370.
NEXI. Lat. In Roman law, bound; bound per-
sons. A term applied to such insolvent debtors
as were delivered up to their creditors, by whom
they might be held in bondage until their debts
were discharged. Calvin.; Adams, Rom.Ant. 49.
NEXT. Nearest; closest; immediately following.
Green v. McLaren, 7 Ga. 107; State v. Asbell, 57
Kan. 398, 46 P. 770.
Nearest or nighest, not in the sense of propinquity alone,
as, for example, three persons on three chairs, one in the
midst, those on each side of the middle one are equally
near, each "next" to the middle one; but it signifies also
order, or succession, or relation as well as propinquity.
27 L.J.Ch. 654. 3 Q.B. 723; Couch v. Turnpike Co., 4
Johns. Ch., N. Y., 26.
NEXT DEVISEE. Person to whom remainder is
given by will. Young v. Robinson, 5 N.J.L. 689.
NEXT EVENTUAL ESTATE. Estate taking ef-
fect upon happening of the event terminating
accumulation. In re Shupack's Estate, 158 Misc.
873, 287 N.Y.S. 184, 196.
NEXT FRIEND. One acting for benefit of infant,
married woman, or other person not sui juris,
without being regularly appointed guardian. In
re Boulware's Will, 144 Misc. 235, 258 N.Y.S. 522.
"Next friend" or "prochein ami" is one admitted
to court to prosecute for infant. Crawford v.
Amusement Syndicate Co., Mo., 37 S.W.2d 581, 584.
NEXT OF KIN. In the law of descent and dis-
tribution, this term properly denotes the persons
nearest of kindred to the decedent, that is, those
who are most nearly related to him by blood; but
it is sometimes construed to mean only those who
are entitled to take under the statute of distribu-
tions, and sometimes to include other persons. 2
Story, Eq.Jur. § 1065b; Barrett v. Egbertson, 92 N.
J.Eq. 118, 111 A. 326, 327; Godfrey v. Epple, 100
Ohio St. 447, 126 N.E. 886, 11 A.L.R. 317; Close v.
Benham, 97 Conn. 102, 115 A. 626, 627, 20 A.L.R.
351; Hamilton v. Erie R. Co., 219 N.Y. 343, 114
N.E. 399, 403, Ann.Cas.1918A, 928; Arnold v.
O'Connor, 37 R.I. 557, 94 A. 145, L.R.A.1916C, 898;
Mostenbocker v. Shawnee Gas & Electric Co., 49
Okl. 304, 152 P. 82, 83, L.R.A.1916B, 910. The
words "next of kin," used simpliciter in a deed or
will, mean, not nearest of kindred, but those rela-
tives who share in the estate according to the stat-
ute of distributions, including those claiming per
stirpes or by representation. Slosson v. Lynch,
43 Barb., N.Y., 147.
NEXT PRESENTATION. In the law of advow-
sons, the right of next presentation is the right to
present to the first vacancy of a benefice.
NEXUM. Lat. In Roman law, in ancient times
the nexum seems to have been a species of for-
mal contract, involving a loan of money, and at-
tended with peculiar consequences, solemnized
with the "copper and balance." Later, it appears
to have been used as a general term for any con-
tract struck with those ceremonies, and hence to
have included the special form of conveyance
called "mancipatio." In a general sense it means
the obligation or bond between contracting par-
ties. Maine, Anc.Law, 305, et seq.; Hadl.Rom.
Law, 247.
In Roman law, this word expressed the tie or
obligation involved in the old conveyance by man-
cipatio ; and came latterly to be used interchange-
ably with (but less frequently than) the word "ob-
ligatio" itself. Brown.
NICHILLS. In English practice, debts due to the
exchequer which the sheriff could not levy, and
as to which he returned nil. These sums were
transcribed once a year by the clerk of the ni-
chills, and sent to the treasurer's remembranc-
er's office, whence process was issued to recover
the "nichill" debts. Both of these offices were
abolished in 1833. Mozley & Whitley.
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NIHIL
NICKNAME. A short name; one nicked or cut
off for the sake of brevity, without conveying an
idea of opprobrium, and frequently evincing the
strongest affection or the most perfect familiar-
ity. North Carolina Inst. v. Norwood, 45 N.C. 74.
NIDERLING, NIDERING, or NITHING. A vile,
base person, or sluggard; chicken-hearted. Spel-
man.
NIECE. The daughter of one's brother or sister.
Ambl. 514. Capps v. State, 87 Fla. 388, 100 So.
172, 173.
In legal usage only children of brothers and sisters are
called "nephews" and "nieces," children of husband's or
wife's brothers and sisters being so called only by cour-
tesy. In re Lamberton's Estate, 105 Pa.Super. 348, 161 A.
596, 597.
NIEFE. In old English law, a woman born in
vassalage; a bondwoman.
NIENT. L. Fr. Nothing; not.
NIENT COMPRISE. Not comprised; not includ-
ed. An exception taken to a petition because the
thing desired is not contained in that deed or pro-
ceeding whereon the petition is founded. Tomlins.
NIENT CULPABLE. Not guilty. The name in
law French of the general issue in tort or in a
criminal action.
NIENT DEDIRE. To say nothing; to deny noth-
ing; to suffer judgment by default.
NIENT LE FAIT. In pleading, not the deed;
not his deed. The same as the plea of non est
factum.
NIENT SEISI. In old pleading, not seised. The
general plea in the writ of annuity. Crabb, Eng.
Law, 424.
NIGER LIBER, See Liber Niger.
NIGHT. At common-law, that period between
sunset and sunrise during which there is not day-
light enough to discern a man's face. 1 Hale, P.
C. 350; State v. Perkins, 342 Mo. 560, 116 S.W.2d
80, 81, 82.
The rule is often followed that "nighttime" begins thirty
minutes after sunset and ends thirty minutes before sun-
rise. State v. Perkins, 342 Mo. 560, 116 S.W.2d 80, 82.
However, the limit of 9 p. m. to 6 a. m. has been fixed by
statute, in England, as the period of night, in prosecutions
for burglary and larceny. St. 24 & 25 Vict. c. 96, § 1;
Brown. In American law, the common-law definition is
still adhered to in some states, but in others "night" has
been defined by statute. U. S. v. Lepper, D.C.N.Y., 288 F.
136, 137; Weatherred v. State, 101 Tex.Cr.R. 520, 276 S.W.
436, 437.
NIGHT MAGISTRATE. A constable of the night;
the head of a watch-house.
NIGHT WALKERS. Described in the statute 5
Edw. III. c. 14, as persons who sleep by day and
walk by night. Persons who prowl about at night,
and are of a suspicious appearance and behavior.
Persons whose habit is to be abroad at night for
the purpose of committing some crime or nuis-
ance or mischief or disturbing the peace; not
now generally subject to the criminal laws except
in respect to misdemeanors actually committed,
or in the character of vagrants or suspicious per-
sons. Thomas v. State, 55 Ala. 260, 261; State v.
Dowers, 45 N.H. 543. In a narrower sense, a night
walker is a prostitute who walks the streets at
night for the purpose of soliciting men for lewd
purposes. Stokes v. State, 92 Ala. 73, 9 So. 400, 25
Am.St.Rep. 22; People v. Berger, Gen.Sess., 169
N.Y.S. 319, 321.
NIGRUM NUNQUAM EXCEDERE DEBET RU-
BRUM. The black should never go beyond the
red, [i. e., the text of a statute should never be
read in a sense more comprehensive than the
rubric, or title.] Tray. Lat. Max. 373.
NIHIL. Lat. Nothing.  Often contracted to
"nil." The word standing alone is the name of an
abbreviated form of return to a writ made by a
sheriff or constable, the fuller form of which
would be "nihil est" or "nihil habet," according to
circumstances.
NIHIL ALIUD POTEST REX QUAM QUOD DE
JURE POTEST. 11 Coke, 74. The king can do
nothing except what he can by law do.
NIHIL CAPIAT PER BREVE. In practice, that
he take nothing by his writ. The form of judg-
ment against the plaintiff in an action, either in
bar or in abatement. When the plaintiff has com-
menced his proceedings by bill, the judgment is
nihil capiat per billam. Co.Litt. 363.
NIHIL CONSENSUI TAM CONTRARIUM EST
QUAM VIS ATQUE METUS. Nothing is so op-
posed to consent as force and fear. Dig. 50, 17,
116,
NIHIL DAT QUI NON HABET. He gives nothing
who has nothing.
NIHIL DE RE ACCRESCIT EI QUI NIHIL EV.
RE QUANDO JUS ACCRESCERET HABET. Co.
Litt. 188. Nothing of a matter accrues to him who,
when the right accrues, has nothing in that matter.
NIHIL DICIT. He says nothing.
This is the name of the judgment which may be taken as
of course against a defendant who omits to plead or answer
the plaintiff's declaration or complaint within the time
limited. In some jurisdictions it is otherwise known as
judgment "for want of a plea." Gilder v. McIntyre, 29
Tex. 91; Falken v. Housatonic R. Co., 63 Conn. 258, 27 A.
1117; Wilbur v. Maynard, 6 Colo. 486.
Judgment taken against party who withdraws his answer
is judgment nihil dicit, which amounts to confession of
cause of action stated, and carries with it, more strongly
than judgment by default, admission of justice of plain-
tiff's case. Howe v. Central State Bank of Coleman, Tex.
Civ.App., 297 S.W. 692, 694.
NIHIL DICTUM QUOD NON DICTUM PRIUS.
Nothing is said which was not said before. Said
of a case where former arguments were repeated.
Hardr. 464.
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NDIIL
NIHIL EST. There is nothing. A form of return
made by a sheriff when he has been unable to
serve the writ.
"Although non est inventus is the more frequent return
In such a case, yet it is by no means as full in answer to
the command of the writ as is the return of nihil. That
amounts to an averment that the defendant has nothing in
the bailiwick, no dwelling-house, no family, no residence,
and no personal presence to enable the officer to make the
service required by the act of assembly. It is therefore a
full answer to the exigency of the writ." Sherer v. Easton
Bank, 33 Pa. 139.
NIHIL EST ENIM LIBERALE QUOD NON IDEM
JUSTUM. For there is nothing generous which is
not at the same time just. 2 Kent, Comm. 441,
note a.
NIHIL EST MAGIS RATION! CONSENTANEUM
QUAM EODEM MODO QUODQUE DISSOLVERE
QUO CONFLATUM EST. Nothing is more con-
sonant to reason than that a thing should be dis-
solved or discharged in the same way in which it
was created. Shep.Touch. 323.
NIHIL FACIT ERROR NOMINIS CUM DE COR-
PORE CONSTAT. 11 Coke, 21. An error as to
a name is nothing when there is certainty as to
the person.
NIHIL HABET. He has nothing. The name of
a return made by a sheriff to a scire facias or
other writ which he has been unable to serve on
the defendant.
NIHIL HABET FORUM EX SCENA. The court
has nothing to do with what is not before it.
Bac.Max.
NIHIL IN LEGE INTOLERABILIUS EST
[QUAM] EANDEM REM DIVERSO JURE CEN-
SERI. Nothing is more intolerable in law than
that the same matter, thing, or case should be sub-
ject to different views of law. Applied to the dif-
ference of opinion entertained by different courts,
as to the law of a particular case. 4 Coke 93a.
NMI INFRA REGNUM SUBDITOS MAGIS
CONSERVAT IN TRANQUILITATE ET CON-
CORDIA QUAM DEBITA LEGUM ADMINISTRA-
TIO. Nothing preserves in tranquillity and con-
cora those who are subjected to the same govern-
ment better than a due administration of the laws.
2 Inst. 158.
NUM INIQUIUS QUAM ZEQUITATEM NIMIS
INTENDERE. Nothing is more unjust than to
extend equity too far. Halk. 103.
NHL MAGIS JUSTUM EST QUAM QUOD NEC-
ESSARIUM EST. Nothing is more just than
that which is necessary. Da y .Ir.K.B. 12; Branch,
Princ.
NIHIL NEQUAM EST PRZESUMENDUM. Noth-
ing wicked is to be presumed. 2 P.Wms. 583.
NIML PERFECTUM EST DUM ALIQUID RE-
STAT AGENDUM. Nothing is perfect while any-
thing remains to be done. 9 Coke, 9b.
NIHIL PETI POTEST ANTE ID TEMPUS QUO
PER RERUM NATURAM PERSOLVI POSSIT.
Nothing can be demanded before the time when,
by the nature of things, it can be paid. Dig. 50, 17,
186.
NIHIL POSSUMUS CONTRA VERITATEM. We
can do nothing against truth. Doct. & Stud. dial.
2, c. 6.
NIHIL PRZESCRIBITUR NISI QUOD POSSIDE-
TUR. There is no prescription for that which is
not possessed. 5 Barn. & Ald. 277.
NIHIL QUOD EST CONTRA RATIONEM EST
LICITUM. Nothing that is against reason is law-
ful. Co.Litt. 97b.
NIHIL QUOD EST INCONVENIENS EST LICI-
TUM. Nothing that is inconvenient is lawful.
Co.Litt. 66a, 97b. A maxim very frequently quot-
ed by Lord Coke, but to be taken in modern law
with some qualification. Broom, Max. 186, 366.
NIHIL SIMUL INVENTUM EST ET PERFEC-
TUM. Co.Litt. 230. Nothing is invented and per-
fected at the same moment.
NIHIL TAM CONVENIENS EST NATURAL'
./EQUITATI QUAM UNUMQUODQUE DISSOLVI
EO LIGAMINE QUO LIGATUM EST. Nothing is
so consonant to natural equity as that a thing
should be dissolved by the same means by which
it was bound. 2 Inst. 359; Broom, Max. 877.
NIHIL TAM CONVENIENS EST NATURAL'
ZEQUITATI QUAM VOLUNTATEM DOMINI
REM SUAM IN ALIUM TRANSFERRE RATAM
HABERE. 1 Coke, 100. Nothing is so consonant
to natural equity as to regard the intention of the
owner in transferring his own property to another.
NIHIL TAM NATURALE EST, QUAM EO GEN-
ERE QUIDQUE DISSOLVERE, QUO COLLIGA-
TUM EST; IDEO VERBORUM OBLIGATIO VER-
BIS TOLLITUR; NUDI CONSENSUS OBLIGA-
TIO CONTRARIO CONSENSU DISSOLVITUR.
Nothing is so natural as to dissolve anything in
the way in which it was bound together; there-
fore the obligation of words is taken away by
words; the obligation of mere consent is dissolv-
ed by the contrary consent. Dig. 50, 17, 35;
Broom, Max. 887.
NIHIL TAM PROPRIUM IMPERIO QUAM LEG-
IBUS VI VERE. Nothing is so becoming to au-
thority as to live in accordance with the laws.
Fleta, lib. 1, c. 17, § 11.
NIHILIST. One advocating doctrine of nihilism.
Webster. One devoted to the destruction of the
present political, religious, and social institutions.
NIL. Lat. Nothing. A contracted form of "ni-
hil," which see.
NIL AGIT EXEMPLUM LITEM QUOD LITE RE-
SOLVIT. An example does no good which set-
tles one question by another. Hatch v. Mann, 15
Wend. (N.Y.) 44, 49.
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NO
NIL CONSENSUI TAM CONTRARIUM EST
QUAM VIS ATQUE METUS. Nothing is so op-
posed to consent as force and fear. Dig. 50, 17,
116.
NIL DEBET. He owes nothing. The form of the
general issue in all actions of debt on simple con-
tract.
NIL FACIT ERROR NOMINIS CUM DE COR-
PORE VEL PERSONA CONSTAT. A mistake in
the name does not matter when the body or per-
son is manifest. 11 Coke, 21; Broom, Max. 634.
NIL HABUIT IN TENEMENTIS. He had noth-
ing [no interest) in the tenements. A plea in debt
on a lease indented, by which the defendant sets
up that the person claiming to be landlord had
no title or interest.
NIL LIGATUM. Nothing bound; that is, no ob-
ligation has been incurred. Tray. Lat.Max.
NIL SINE PRUDENT! FECIT RA1IONE VET-
USTAS. Antiquity did nothing without a good
reason. Co.Litt. 65.
Nrr., TEMERE NOVANDUM. Nothing should be
rashly changed. Jenk.Cent. 163.
NIMIA CERTITUDO CERTITUDINEM IPSAM
DESTRUIT. Too great certainty destroys cer-
tainty itself. Lofft, 244.
NIMIA SUBTILITAS IN JURE REPROBATUR.
Wing.Max. 26. Too much subtlety in law is dis-
countenanced.
NIMIUM ALTERCANDO VERITAS AMITTITUR.
Hob. 344. By too much altercation truth is lost.
NIMMER. A thief; a pilferer.
NISEI. Jap. Second generation. Particularly a
person born in the United States of Japanese par-
ents. 1945 Report of the Tenney Joint Fact-Find-
ing Committee on Un-American Activities to the
California Legislature; Reader's Guide to Periodi-
cal Literature. See also Kibei.
NISI. Lat. Unless.
The word is often affixed, as a kind of elliptical expres-
sion, to the words "rule," "order," "decree," "judgment,"
or "confirmation," to indicate that the adjudication spoken
of is one which is to stand as valid and operative unless the
party affected by it shall appear and show cause against it,
or take some other appropriate step to avoid it or procure
its revocation. Thus a "decree nisi" is one which will defi-
nitely conclude the defendant's rights unless, within the
prescribed time, he shows cause to set it aside or success-
fully appeals. The word, in this sense, is opposed to
"absolute." And when a rule nisi is finally confirmed, for
the defendant's failure to show cause against it, it is said
to be "made absolute."
NISI FECERIS. The name of a clause commonly
occurring in the old manorial writs, commanding
that, if the lords failed to do justice, the king's
court or officer should do it. By virtue of this
clause, the king's court usurped the jurisdiction
of the private, manorial, or local courts. Stim•
Law Gloss.
NISI PRIUS. The nisi prius courts are such as
are held for the trial of issues of fact before a
jury and one presiding judge. In America the
phrase is familiarly used to denote the forum
(whatever may be its statutory name) in which
the cause was tried to a jury, as distinguished from
the appellate court. See 3 Bl.Comm. 58.
NISI PRIUS CLAUSE. In practice, a clause en-
tered on the record in an action at law, authoriz-
ing the trial of the cause at nisi prius in the par-
ticular county designated. It was first used by
way of continuance.
NISI PRIUS ROLL. In practice, the roll or record
containing the pleadings, issue, and jury process
of an action, made up for use in the nisi prius
court.
NISI PRIUS WRIT. The old name of the writ of
venire, which originally, in pursuance of the stat-
ute of Westminster 2, contained the nisi prius
clause. Reg.Jud. 28, 75. Cowell.
NIVICOLLINI BRITONES. In old English law,
Welshmen, because they live near high mountains
covered with snow. Du Cange.
NO ARRIVAL NO SALE. If goods do not arrive
at destination buyer acquires no property therein
and does not become liable for price. Cundill v.
A. W. Millhauser Corporation, 257 N.Y. 416, 178
N.E. 680, 681.
NO AWARD. The name of a plea in an action on
an award, by which the defendant traverses the
allegation that an award was made.
NO BILL. This phrase, when indorsed by a grand
jury on an indictment, is equivalent to "not found,"
"not a true bill," or "ignoramus."
NO FUNDS. See Fund.
NO GOODS. This is the English equivalent of the
Latin term "nulla bona," being the form of the re-
turn made by a sheriff or constable, charged with
an execution, when he has found no property of
the debtor on which to levy.
NO MAN CAN HOLD THE SAME LAND IMME-
DIATELY OF TWO SEVERAL LANDLORDS.
Co.Litt. 152.
NO MAN IS PRESUMED TO DO ANYTHING
AGAINST NATURE. 22 Vin.Abr. 154.
NO MAN MAY BE JUDGE IN HIS OWN CAUSE.
NO MAN SHALL SET UP HIS INFAMY AS A
DEFENSE. 2 W.B1. 364.
NO MAN SHALL TAKE ADVANTAGE OF HIS
OWN WRONG. Lightbody v. Russell, Sup., 45
N.Y.S.2d 15, 17.
NO MAN SHALL TAKE BY DEED BUT PAR-
TIES, UNLESS IN REMAINDER.
NO ONE CAN GRANT OR CONVEY WHAT HE
DOES NOT OWN. Seymour v. Canandaigua &
N. F. R. Co., 25 Barb., N.Y., 284, 301; Saltus v.
Everett, 20 Wend., N.Y., 267, 32 Am.Dec. 541.
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NO
NO ONE WILL BE PERMITTED TO TAKE THE
BENEFIT UNDER A WILL AND AT THE SAME
TIME DEFEAT ITS PROVISIONS. 25 Wash.L.
Rep. 50.
NO RECOURSE. No access to; no return; no
coming back upon; no assumption of any liability
whatsoever; no looking to the party using the
term for any reimbursement in case of loss or
damage or failure of consideration in that which
was the cause, the motive, the object, of the under-
taking or contract. Guardian Homestead Ass'n v.
Mazerat, 182 La. 710, 162 So. 574.
NOBILE OFFICIUM. In Scotch law, an equitable
power of the court of session, to give relief when
none is possible at law. Ersk.Inst. 1, 3, 22; Bell.
NOBILES MAGIS PLECTUNTUR PECUNIA;
PLEBES VERO IN CORPORE. 3 Inst. 220. The
higher classes are more punished in money; but
the lower in person.
NOBILES SUNT, QUI ARMA GENTILITIA AN-
TECESSORUM SUORUM PROFERRE POSSUNT.
2 Inst. 595. The gentry are those who are able to
produce armorial bearings derived by descent from
their own ancestors.
NOBILIORES ET BENIGNIORES PRZESUMP-
TIONES IN DUBIIS SUNT PRIEFERENDIE. In
cases of doubt, the more generous and more benign
presumptions are to be preferred. A civil-law
maxim.
NOBILITAS EST DUPLEX, SUPERIOR ET IN-
FERIOR. 2 Inst. 583. There are two sorts of
nobility, the higher and the lower.
NOBILITY. In English law, a division of the peo-
ple, comprehending dukes, marquises, earls, vis-
counts, and barons.
These had anciently duties annexed to their respective
honors. They are created either by writ, i. e., by royal
summons to attend the house of peers, or by letters patent,
i. e., by royal grant of any dignity and degree of peerage;
and they enjoy many privileges, exclusive of their sena-
torial capacity. 1 B1. Comm. 396.
NOCENT. From Latin "nocere," guilty.  "The
nocent person." 1 Vern. 429.
NOCTANTER. By night; an abolished writ which
issued out of chancery, and returned to the queen's
bench, for the prostration of inclosures, etc.
NOCTES and NOCTEM DE FIRMA. Entertain-
ment of meat and drink for so many nights.
Domesday.
NOCUMENTUM. Lat. In old English law, a nui-
sance. Nocumentum damnosum, a nuisance oc-
casioning loss or damage. Nocumentum injurios-
um, an injurious nuisance. For the latter only a
remedy was given. Bract. fol. 221.
NOLENS VOLENS. Lat. Whether willing or un-
willing; consenting or not.
NOLIS. Fr. In French law, freight. The same
with "fret." Ord. Mar. liv. 3, tit. 3.
NOLISSEMENT. Fr. In French marine law, af-
freightment. Ord. Mar. liv. 3, tit. 1.
NOLLE PROSEQUI. Lat. In practice, a formal
entry upon the record, by the plaintiff in a civil
suit (Hewitt v. International Shoe Co., 110 Fla. 37,
148 So. 533, 536), or the prosecuting officer in a
criminal action, (Commonwealth v. Shields, 89 Pa.
Super. 266, 268) by which he declares that he "will
no further prosecute" the case, either as to some
of the counts, or some of the defendants, or alto-
gether. State v. Primm, 61 Mo. 171; Com. v.
Casey, 12 Allen, Mass., 214; Scheibler v. Steinburg,
129 Tenn. 614, 167 S.W. 866, Ann.Cas.1915D, 1162.
A nolle prosequi is in the nature of an acknowledgment
or undertaking by the plaintiff in an action to forbear to
proceed any further either in the action altogether, or as
to some part of it, or as to some of the defendants; and is
different from a non pros., by which the plaintiff is put out
of court with respect to all the defendants. Brown.
NOLO CONTENDERE. Lat. I will not contest
it. The name of a plea in a criminal action, hav-
ing the same legal effect as a plea of guilty, so
far as regards all proceedings on the indictment,
and on which the defendant may be sentenced.
U. S. v. Hartwell, 3 Cliff. 221, F.Cas.No.15,318.
Like a demurrer this plea admits, for the purposes of
the case, all the facts which are well pleaded, but is not
to be used as an admission elsewhere. Corn. v. Tilton, 8
Metc., Mass., 232. Not available as an estoppel in a civil
action. Corn. v. Horton, 9 Pick., Mass., 206; Olszewski v.
Goldberg, 223 Mass. 27, 111 N.E. 404; Hudson v. U. S., 272
U.S. 451, 47 S.Ct. 127, 129, 71 L. Ed. 347.
See, also, Plea.
NOMEN. Lat. In the civil law, a name; the
name, style, or designation of a person. Properly,
the name showing to what Bens or tribe he be-
longed, as distinguished from his own individual
name, (the prcenomen,) from his surname or fami-
ly name, (cog?wmen,) and from any name added
by way of a descriptive title, (agnomen.) The
name or style of a class or genus of persons or
objects. A debt or a debtor. Ainsworth; Calvin.
NOMEN COLLECTIVUM. A collective name or
term; a term expressive of a class; a term includ-
ing several of the same kind; a term expressive of
the plural, as well as singular, number.
NOMEN EST QUASI REI NOTAMEN. A name is,
as it were, the note of a thing. 11 Coke, 20.
NOMEN GENERALE. A general name; the name
of a genus. Fleta, lib. 4, c. 19, § 1.
NOMEN GENERALISSIMUM. A name of the
most general kind; a name or term of the most
general meaning. By the name of "land," which is
nomen generalissimum, everything terrestrial will
pass. 2 Bl.Comm. 19; 3 Bl.Comm. 172.
NOMEN JURIS. A name of the law; a technical
legal term.
NOMEN NON SUFFICIT, SI RES NON SIT DE
JURE AUT DE FACTO. A name is not sufficient
if there be not a thing [or subject for it] de jure
or de facto. 4 Coke, 107b.
NOMEN TRANSCRIPTITIUM. See Nomina Tran-
scriptitia.
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NOMINATION
NOMINA MUTABILIA SUNT, RES AUTEM IM-
MOBILES. Names are mutable, but things are im-
movable, jimmutable.] A name may be true or
false, or may change, but the thing itself always
maintains its identity. 6 Coke, 66.
NOMINA SI NESCIS PERIT COGNITIO RERUM;
ET NOMINA SI PERDAS, CERTE DISTINCTIO
RERUM PERDITUR. Co.Litt. 86. If you know
not the names of things, the knowledge of things
themselves perishes; and, if you lose the names,
the distinction of the things is certainly lost.
NOMINA SUNT NOTZE RERUM. 11 Coke, 20.
Names are the notes of things.
NOMINA SUNT SYMBOLA RERUM. Godb.
Names are the symbols of things.
NOMINA TRANSCRIPTITIA. In Roman law, ob-
ligations contracted by literce (i. e., literis obliga-
tiones) were so called because they arose from a
peculiar transfer (transcriptio) from the credi-
tor's day-book (adversaria) into his ledger, (co-
dex.)
NOMINA VILLARUM. In English law, an ac-
count of the names of all the villages and the pos-
sessors thereof, in each county, drawn up by sev-
eral sheriffs, (9 Edw. II.,) and returned by them
into the exchequer, where it is still preserved.
Wharton.
NOMINAL. Titular; existing in name only; not
real or substantial; connected with the transaction
or proceeding in name only, not in interest. Park
Amusement Co. v. McCaughn, D.C.Pa., 14 F.2d 553,
556; not real or actual; merely named, stated, or
given, without reference to actual conditions;
often with the implication that the thing named is
so small, slight, or the like, in comparison to what
might properly be expected, as scarcely to be en-
titled to the name; a nominal price. Lehman v.
Tait, C.C.A.Md., 58 F.2d 20, 23.
NOMINAL CAPITAL. Very small or negligible
capital, whose use in particular business is inciden-
tal. Strayer's Business College v. Commissioner
of Internal Revenue, C.C.A.4, 35 F.2d 426, 429.
Capital in name only and which is not substantial;
not real or actual; merely named, stated, or given,
without reference to actual conditions. Feeders'
Supply Co. v. Commissioner of Internal Revenue,
C.C.A.8, 31 F.2d 274, 276.
NOMINAL CONSIDERATION. See Considera-
tion.
NOMINAL DAMAGES. See Damages.
NOMINAL DEFENDANT. A person who is joined
as defendant in an action, not because he is im-
mediately liable in damages or because any specific
relief is demanded as against him, but because his
connection with the subject-matter is such that
the plaintiff's action would be defective, under the
technical rules of practice, if he were not joined.
NOMINAL PARTNER. A person who appears
to be a partner in a firm, or is so represented to
persons dealing with the firm, or who allows his
name to appear in the style of the firm or to be
used in its business, in the character of a partner,
but who has no actual interest in the firm or busi-
ness. Story, Partn. § 80.
NOMINAL PARTY. Those who are joined as
parties or defendants merely because the technical
rules of pleading require their presence in the rec-
ord. Yellow Cab & Baggage Co. v. Smith, Tex.Civ.
App., 30 S.W.2d 697, 702. Those having no inter-
est in immediate controversy, but having interest
in subject-matter which may be conveniently set-
tled in suit. Medico v. Employers' Liability Assur.
Corporation, 132 Me. 422, 172 A. 1, 3.
NOMINAL PLAINTIFF. One who has no inter-
est in the subject-matter of the action, having as-
signed the same to another, (the real plaintiff in
interest, or "use plaintiff,") but who must be joined
as plaintiff, because, under technical rules of
practice, the suit cannot be brought directly in
the name of the assignee.
NOMINATE. To name, designate by name, or ap-
point. Wilson v. Stump, 310 Mass. 614, 39 N.E.2d
416, 418; to name, designate, or propose for elec-
tion or appointment. State ex rel. Pittman v.
Barker, 113 Fla. 865, 152 So. 682, 683, 94 A.L.R.
1481, for an office, a privilege, a living, etc.
NOMINATE CONTRACTS. In the civil law, con-
tracts having a proper or peculiar name and form,
and which were divided into four kinds, expressive
of the ways in which they were formed, viz.:
(1) Real, which arose ex re, from something done;
(2) verbal, ex verbis, from something said; (3)
literal, ex literis, from something written; and
(4) consensual, ex consensu, from something
agreed to. Calvin.
NOMINATIM. Lat. By name; expressed one by
one.
NOMINATING AND REDUCING. A mode of ob-
taining a panel of special jurors in England, from
which to select the jury to try a particular action.
The proceeding takes place before the under-sheriff or
secondary, and in the presence of the parties' solicitors.
Numbers denoting the persons on the sheriff's list are put
into a box and drawn until forty-eight unchallenged per-
sons have been nominated. Each party strikes off twelve,
and the remaining twenty-four are returned as the "pan-
el," (q. v.). This practice is now only employed by order
of the court or judge. (Sm.Ac. 130; Juries Act 1870, § 17.)
Sweet.
NOMINATIO AUCTORIS. Lat. In Roman law, a
form of plea or defense in an action for the recov-
ery of real estate, by which the defendant, sued as
the person apparently in possession, alleges that
he holds only in the name or for the benefit of an-
other, whose name he discloses by the plea, in or-
der that the plaintiff may bring his action against
such other. Mackeld. Rom.Law, § 297.
NOMINATION. An appointment or designation of
a person to fill an office or discharge a duty. The
act of suggesting or proposing a person by name
as a candidate for an office.
NOMINATION PAPER. A paper used for selec-
tion of candidates by a political body which is not
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NOMINATION
a political party and is not entitled to use a "nomi-
nation petition". Commonwealth v. Antico, 146
Pa.Super. 293, 22 A.2d 204, 209.
NOMINATION TO A LIVING. In English ec-
clesiastical law, the rights of nominating and of
presenting to a living are distinct, and may reside
in different persons. Presentation is the offering a
clerk to the bishop. Nomination is the offering a
clerk to the person who has the right of presenta-
tion. Brown.
NOMINATIVUS PENDENS. Lat. A nominative
case grammatically unconnected with the rest of
the sentence in which it stands. The opening
words in the ordinary form of a deed inter partes,
"This indenture," etc., down to "whereas," though
an intelligible and convenient part of the deed, are
of this kind. Wharton.
NOMINE. Lat. By name; by the name of; un-
der the name or designation of.
NOMINE PCENIE. In the name of a penalty.
In the civil law, a legacy was said to be left nomine
pcena3 where it was left for the purpose of coercing the heir
to do or not to do something. Inst. 2, 20, 36.
The term has. also been applied, in English law, to some
kinds of covenants, such as a covenant inserted in a lease
that the lessee shall forfeit a certain sum on non-payment
of rent, or on doing certain things, as plowing up ancient
meadow, and the like. 1 Crabb, Real Prop. p. 171, § 155.
NOMINEE. One who has been nominated or pro-
posed for an office.
One designated to act for another as his repre-
sentative in a rather limited sense. It is used
sometimes to signify an agent or trustee. It has
no connotation, however, other than that of acting
for another, in representation of another, or as the
grantee of another. Schuh Trading Co. v. Com-
missioner of Internal Revenue, C.C.A.7, 95 F.2d
404, 411.
NOMOCANON. (1) A collection of canons and
imperial laws relative or conformable thereto.
The first nomocanon was made by Johannes Scho-
lasticus in 554. Photius, patriarch of Constanti-
nople, in 883, compiled another nomocanon, or col-
lation of the civil laws with the canons; this is the
most celebrated.. Balsamon wrote a commentary
upon it in 1180. (2) A collection of the ancient
canons of the apostles, councils, and fathers, with-
out regard to imperial constitutions. Such is the
nomocanon by M. Cotelier. Enc. Lond.
NOMOGRAPHER. One who writes on the subject
of laws.
NOMOGRAPHY. A treatise or description of
laws.
NOMOTHETA. A lawgiver; such as Solon and
Lycurgus among the Greeks, and Caesar, Pompey,
and Sylla among the Romans. Calvin.
NON. Lat. Not. The common prefix of negation.
Geronime v. German Roman Catholic Aid Ass'n of
America, 127 Minn. 247, 149 N.W. 291, 292.
NON ACCEPTAVIT. In pleading, the name of a
plea to an action of assumpsit brought against the
drawee of a bill of exchnge by which he denies
that he accepted the same.
NON ACCIPI DEBENT VERBA IN DEMONSTRA-
TIONEM FALSAM, QUJE COMPETUNT IN LIM-
ITATIONEM VERAM. Words ought not to be
taken to import a false demonstration which may
have effect by way of true limitation. Bac.Max. p.
59, reg. 13; Broom, Max. 642.
NON ACCREVIT INFRA SEX ANNOS. It did
not accrue within six years. The name of a plea
by which the defendant sets up the statute of limi-
tations against a cause of action which is barred
after six years.
NON ALIO MODO PUNIATUR ALIQUIS QUAM
SECUNDUM QUOD SE HABET CONDEMNATIO.
3 Inst. 217. A person may not be punished differ-
ently than according to what the sentence enjoins.
NON ALITER A SIGNIFICATIONE VERBORUM
RECEDI OPORTET QUAM CUM MANIFESTUM
EST, ALIUD SENSISSE TESTATOREM. We
must never depart from the signification of words,
unless it is evident that they are not conformable
to the will of the testator. Dig. 32, 69, pr.; Broom,
Max. 568.
NON ASSUMPSIT. The general issue in the ac-
tion of assumpsit; being a plea by which the de-
fendant avers that "he did not undertake" or
promise as alleged. Standard Fashion Co. v. Mor-
gan, 48 Okl. 217, 149 P. 1160.
NON ASSUMPSIT INFRA SEX ANNOS. He did
not undertake within six years. The name of the
plea of the statute of limitations, in the action of
assumpsit.
NON AUDITUR PERIRE VOLENS. He who is
desirous to perish is not heard. Best, Ev. 423, §
385. He who confesses himself guilty of a crime,
with the view of meeting death, will not be heard.
A maxim of the foreign law of evidence. Id.
NON BIS IN IDEM. Not twice for the same;
that is, a man shall not be twice tried for the same
crime. This maxim of the civil law (Code 9, 2, 9,
11) expresses the same principle as the familiar
rule of our law that a man shall not be twice "put
in jeopardy" for the same offense.
NON CEPIT. He did not take. The general issue
in replevin, where the action is for the wrongful
taking of the property; putting in issue not only
the taking, but the place in which the taking is
stated to have been made. Steph.P1. 157, 167.
NON COMPOS MENTIS. Lat. Not sound of
mind; insane. This is a very general term, em-
bracing all varieties of mental derangement. See
Insanity.
Coke has enumerated four different classes of persons
who are deemed in law to be non compotes mentis: First,
an idiot, or fool natural; second, he who was of good and
sound mind and memory, but by the act of God has lost it;
third, a lunatic, lunaticus qui gaudet lucidis intervallis,
who sometimes is of good sound mind and memory, and
sometimes non compos mentis; fourth, one who is non
compos mentis by his own act, as a drunkard, Co.Litt.
247a; 4 Coke, 124.
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NON CONCEDANTUR CITATIONES PRIUS-
QUAM EXPRIMATUR SUPER QUA RE FIERI
DEBET CITATIO. 12 Coke, 47. Summonses
should not be granted before it is expressed on
what matter the summons ought to be made.
NON CONCESSIT. Lat. He did not grant. The
name of a plea denying a grant, which could be
made only by a stranger.
NON CONSENTIT QUI ERRAT. Bract. fol. 44.
He who mistakes does not consent.
NON CONSTAT. Lat. It does not appear; it is
not clear or evident. A phrase used in general to
state some conclusion as not necessarily following
although it may appear on its face to follow.
NON CULPABILIS. Lat. In pleading, not guilty.
It is usually abbreviated "non cul."
NON DAMNIFICATUS. Lat. Not injured.
This is a plea in an action of debt on an indemnity bond,
or bond conditioned "to keep the plaintiff harmless and
indemnified," etc. It is in the nature of a plea of per-
formance, being used where the defendant means to allege
that the plaintiff has been kept harmless and indemnified,
according to the tenor of the condition. Steph.Pl., 7th Ed.,
300, 301. State Bank v. Chetwood, 8 N.J.L. 25.
NON DAT QUI NON HABET. He who has not
does not give. Lofft, 258; Broom, Max. 467.
NON DEBEO MELIORIS CONDITION'S ESSE,
QUAM AUCTOR MEUS A QUO JUS IN ME
TRANSIT. I ought not to be in better condition
than he to whose rights I succeed. Dig. 50, 17,
175, 1.
NON DEBERET ALII NOCERE QUOD INTER,
ALIOS ACTUM ESSET. No one ought to be in-
jured by that which has taken place between other
parties. Dig. 12, 2, 10.
NON DEBET ACTORI LICERE QUOD REO NON
PERMITTITUR. A plaintiff ought not to be al-
lowed what is not permitted to a defendant. A
rule of the civil law. Dig. 50, 17, 41.
NON DEBET ADDUCI EXCEPTIO EJUS REI
CUJUS PETITUR DISSOLUTIO. A plea of the
same matter the dissolution of which is sought [by
the action] ought not to be brought forward.
Broom, Max. 166.
NON DEBET ALIT NOCERE, QUOD INTER AL-
IOS ACTUM EST. A person ought not to be prej-
udiced by what has been done between others.
Dig. 12, 2, 10.
NON DEBET ALTERI PER ALTERUM INIQUA
CONDITIO INFERRI. A burdensome condition
ought not to be brought upon one man by the act
of another. Dig. 50, 17, 74.
NON ERIT
NON DEBET DICI TENDERE IN PRAFJUDICI-
UM ECCLESIASTICE LIBERATATIS QUOD
PRO REGE ET REPUBLICA NECESSARIUM
VIDETUR. 2 Inst. 625. That which seems neces-
sary for the king and the state ought not to be said
to tend to the prejudice of spiritual liberty.
NON DECET HOMINES DEDERE CAUSA NON
COGNITA. It is unbecoming to surrender men
when no cause is shown. In re Washburn, 4
Johns.Ch., N.Y., 106, 114, 8 Am.Dec. 548; Id., 3
Wheeler, Cr.Cas., N.Y., 473, 482.
NON DECIMANDO. See De Non Decimando.
NON DECIPITUR QUI SCIT 3E DECIPI. 5 Coke,
60. He is not deceived who knows himself to be
deceived.
NON DEBIT. Lat. In pleading, he did not grant,
The general issue in formedon.
NON DEFINITUR IN JURE QUID SIT CONA.
TUS. What an attempt is, is not defined in law,
6 Co. 43. See Attempt.
NON DEMISIT. Lat. He did not demise.
A plea proper to be pleaded to an action of debt for rent,
when the plaintiff declares on a parol lease. Gilb. Debt
436; Bull.N.P. 177; 1 Chitty, Pl. 477. A plea in bar, in
replevin, to an avowry for arrears of rent, that the avow-
ant did not demise. Morris, Repl. 179. It cannot be
pleaded when the demise is stated to have been by inden,
ture. 12 Viner, Abr. 178; Com.Dig. Pleader (2 W 48).
NON DETINET. Lat. He does not detain.
The name of the general Issue in the action of detinue.
1 Tidd, Pr. 645; Berlin Mach. Works v. Alabama City
Furniture Co., 112 Ala. 488, 20 So. 418.
The general issue in the action of replevin, where the
action is for the wrongful detention only. 2 Burrill, Pr. 14.
NON DIFFERUNT QUZE CONCORDANT RE,
TAMETSI NON IN VERB'S IISDEM. Those
things do not differ which agree in substance,
though not in the same words. Jenk.Cent. p. 70,.
case 32.
NON DIMISIT. L. Lat. He did not demise.
A plea resorted to where a plaintiff declared upon a
demise without stating the indenture in an action of debt
for rent. Also, a plea in bar, in replevin, to an avowry for
arrears of rent, that the avowant did not demise.
NON DISTRINGENDO. A writ not to distrain.
NON DUBITATUR, ETSI SPECIALITER VEN-
DITOR EVICTIONEM NON PROMISERIT, RE
EVICTA, EX EMPTO COMPETERE ACTIONEM.
It is certain that, although the vendor has not
given a special guaranty, an action ex empto lies
against him, if the purchaser is evicted. Code, 8,
45, 6; Broom, Max. 768.
NON EFFICIT AFFECTUS NISI SEQUATUR
EFFECTUS. The intention amounts to nothing
unless the effect follow. 1 Rolle, 226.
NON DEBET CUI PLUS LICET, QUOD MINUS
EST NON LICERE. He to whom the greater is
lawful ought not to be debarred from the less as
unlawful. Dig. 50, 17, 21; Broom, Max. 176.
Black's Law Dictionary Revised 4th Ed.--76
NON ERIT ALIA LEX ROME, ALIA ATHIENIS;
ALIA NUNC, ALIA POSTHAC; SED ET OMNES
GENTES, ET OMNI TEMPORE, UNA LEX, ET
SEMPITERNA, ET IMMORTAL'S CONTINEBIT.
There will not be one law at Rome, another at
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NON EST
Athens; one law now, another hereafter; but one
eternal and immortal law shall bind together all
nations throughout all time. Cic.Frag. de Repub.
lib. 3; 3 Kent, Comm. 1.
NON EST ARCTIUS VINCULUM INTER HO-
MINES QUAM JUSJURANDUM. There is no
closer [or firmer] bond between men than an oath.
Jenk.Cent. p. 126, case 54.
NON EST CERTANDUM DE REGULIS JURIS.
There is no disputing about rules of law.
NON EST CONSONUM RATIONI, QUOD COGNI-
TIO ACCESSORII IN CURIA CHRISTIANITA-
TIS IMPEDIATUR, UBI COGNITIO CAUSiE
PRINCIPALIS AD FORUM ECCLESIASTICUM
NOSCITUR PERTINERE. 12 Coke, 65. It is un-
reasonable that the cognizance of an accessory
matter should be impeded in an ecclesiastical
court, when the cognizance of the principal cause
is admitted to appertain to an ecclesiastical court.
NON EST DISPUTANDUM CONTRA PRINCIPIA'NEGANTEM. Co. Litt. 343. We cannot dispute
against a man who denies first principles.
NON. EST FACTUM. Lat. A plea denying execu-
tion of instrument sued on, Blair v. Lockwood, 226
Ky. 412, 11 S.W.2d 107, 109.
A plea by way of traverse, which occurs in debt on bond
or other specialty, and also in covenant. It denies that the
deed mentioned in the declaration is the defendant's deed
Under this, the defendant may contend at the trial that the
deed was never executed in point of fact; but he cannot
deny its validity in point of law. Wharton; Haggart v.
Morgan, 5 N.Y. 422, 55 Am.Dec. 350; Evans v. Southern
Turnpike Co., 18 Ind. 101.
The plea of non est factum is a denial of the execution
of the instrument sued upon, and applies to notes or other
instruments, as well as deeds, and applies only when the
execution of the instrument is alleged to be the act of the
party filing the plea, or adopted by him. Code Ga.1882, §
3472 (Civ.Code 1910, § 5676).
Special Non Est Factum. A form of the plea of non est
factum, in debt on a specialty, by which the defendant
alleges that, although he executed the deed, yet it is in law
"not his deed," because of certain special circumstances
which he proceeds to set out; as, where he delivered the
deed as an escrow, and it was turned over to the plaintiff
prematurely or without performance of the condition.
NON EST INVENTUS. Lat. He is not found.
The sheriff's return to process requiring him to
arrest the body of the defendant, when the latter
is not found within his jurisdiction. It is often
abbreviated, "n. e. i.," or written, in English, "not
found." The Bremena v. Card, D.C.Wash., 38 F.
144.
NON EST JUSTUM ALIQUEM ANTENATUM
POST MORTEM FACERE BASTARDUM QUI TO-
TO TEMPORE VIT1E SUJE PRO LEGITIMO
HABEBATUR. It is not just to make an elder-
born a bastard after his death, who during his
lifetime was accounted legitimate. 12 Coke, 44.
NON EST NOVUM UT PRIORES LEGES AD
POSTERIORES TRAHANTUR. It is no new
thing that prior statutes should give place to lat-
er ones. Dig. 1, 3, 36; Broom, Max. 28.
NON EST RECEDENDUM A COMMUNI OB-
SERVANTIA. There should be no departure
from a common observance. 2 Co. 74.
NON EST REGULA QUIN FALLET. There is
no rule but what may fail. Off.Exec. 212.
NON EST REUS NISI MENS SIT REA. One is
not guilty unless his intention be guilty. Chis-
holm v. Chisholm, 105 Fla. 402, 141 So. 302, 303.
This maxim is much criticised. See actus non
reum tacit, etc.; Mens Rea.
NON EST SINGULIS CONCEDENDUM, QUOD
PER MAGISTRATUM PUBLICE POSSIT FIERI,
NE OCCASIO SIT MAJOR'S TUMULTUS FACI-
ENDI. That is not to be conceded to private per-
sons which can be publicly done by the magistrate,
lest it be the occasion of greater tumults. Dig. 50,
17, 176.
NON EX OPINIONIBUS SINGULORUM, SED EX
COMMUNI USI, NOMINA EXAUDIRI DEBENT.
The names of things ought to be understood, not
according to the opinions of individuals, but ac-
cording to common usage. Dig. 33, 10, 7, 2.
NON EXEMPLIS SED LEGIBUS JUDICANDUM
EST. Not by the facts of the case, but by the law
must judgment be made. Dig. 7, 45, 13. (called by
Albericus Gentilis lex aurea).
NON FACIAS MALUM, UT INDE FIAT BONUM.
You are not to do evil, that good may be or result
therefrom. 11 Coke, 74a; 5 Coke, 30b.
NON FECIT. Lat. He did not make it. A plea
in an action of assumpsit on a promissory note.
3 Man. & G. 446.
NON FECIT VASTUM CONTRA PROHIBITION-
EM. He did not commit waste against the pro-
hibition. A plea to an action founded on a writ
of estrepement for waste. 3 Bl.Comm. 226, 227.
NON MEC IN FCEDERA VENI. I did not agree
to these terms.
NON IMPEDIT CLAUSULA DEROGATORIA
QUO MINUS AD EADEM POTESTATE RES DIS-
SOLVANTUR A QUA CONSTITUUNTUR. A
derogatory clause does not impede things from
being dissolved by the same power by which they
are created. Broom, Max. 27.
NON IMPEDIVIT. Lat. He did not impede. The
plea of the general issue in quare impedit. The
Latin form of the law French "ne disturba pas."
NON IMPLACITANDO ALIQUEM DE LIBERO
TENEMENTO SINE BREVI. A writ to prohibit
bailiffs, etc., from distraining or impleading any
man touching his freehold without the king's writ.
Reg. Orig. 171.
NON IN LEGENDO SED IN INTELLIGENDO
LEGIS CONSISTUNT. The laws consist not in
being read, but in being understood. 8 Coke, 167a.
NON INFREGIT CONVENTIONEM. Lat. He
did not break the contract. The name of a plea
sometimes pleaded in the action of covenant, and
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NON PERTINET
intended as a general issue, but held to be a bad
plea; there being, properly speaking, no general
issue in that action. 1 Tidd, Pr. 356.
NON INTERFUI. I was not present. A report-
er's note. T.Jones, 10.
NON INTROMITTANT CLAUSE. In English
law, a clause of a charter of a municipal borough,
whereby the borough is exempted from the juris-
diction of the justices of the peace for the county.
NON INTROMITTENDO, QUANDO BREVE
PRIECIPE IN CAPITE SUBDOLE IMPETRA-
TUR. A writ addressed to the justices of the
bench, or in eyre, commanding them not to give
one, who, under color of entitling the king to
land, etc., as holding of him in capite, had deceit-
fully obtained the writ called "prcecipe in capite,"
any benefit thereof, but to put him to his writ of
right. Reg. Orig. 4.
NON JURIDICUS. Not judicial; not legal. Dies
non juridicus is a day on which legal proceedings
cannot be had.
NON JUS EX REGULA, SED REGULA EX JURE.
The law does not arise from the rule (or maxim,)
but the rule from the law. Tray.Lat.Max. 384.
NON JUS, SED SEISINA, FACIT STIPITEM.
Not right, but seisin, makes a stock. Fleta, lib. 6,
c. 2, § 2. It is not a mere right to enter on lands,
but actual seisin, which makes a person the root
or stock from which all future inheritance by
right of blood must be derived. 2 Bl.Comm. 209,
312. See Broom, Max. 525, 527.
NON LICET QUOD DISPENDIO LICET. That
which may be [done only] at a loss is not allowed
[to be done.] The law does not permit or require
the doing of an act which will result only in loss.
The law forbids such recoveries whose ends are
vain, changeable, and unprofitable. Co.Litt. 127b.
NON LIQUET. Lat. It is not clear.
In the Roman courts, when any of the judges, after the
hearing of a cause, were not satisfied that the case was
made clear enough for them to pronounce a verdict, they
were privileged to signify this opinion by casting a ballot
inscribed with the letters "N. L.," the abbreviated form of
the phrase "non liquet."
NON MERCHANDIZANDA VICTUALIA. An an-
cient writ addressed to justices of assize, to in-
quire whether the magistrates of a town sold vict-
uals in gross or by retail during the time of their
being in office, which was contrary to an obsolete
statute; and to punish them if they did. Reg.
Orig. 184.
NON MOLESTANDO. A writ that lay for a per-
son who was molested contrary to the king's pro-
tection granted to him. Reg.Orig. 184.
NON OBSERVATA FORMA, INFERTUR AD-
NULLATIO ACTUS. Where form is not observ-
ed, an annulling of the act is inferred or follows.
12 Coke, 7.
NON OBSTANTE. Lat. Notwithstanding.
Words anciently used in public and private instruments,
intended to preclude, in advance, any interpretation con-
trary to certain declared objects or purposes. Burrill.
A clause frequent in old English statutes and letters
patent, (so termed from its initial words,) importing a
license from the crown to do a thing which otherwise a
person would be restrained by act of parliament from
doing. Crabb, Corn. Law, 570; Plowd. 501; Cowell.
A power in the crown to dispense with the laws in any
particular case. This was abolished by the bill of rights at
the Revolution. 1 B1. Comm. 342.
NON OBSTANTE VEREDICTO. Notwithstand-
ing the verdict. A judgment entered by order of
court for the plaintiff, although there has berm a
verdict for the defendant, is so called. German
Ins. Co. v. Frederick, Kan., 58 F. 144, 7 C.C.A. 122;
Wentworth v. Wentworth, 2 Minn. 282, Gil. 238, 72
Am.Dec. 97
Judgment non obstante veredicto originally, at common
law, was a judgment entered for plaintiff "notwithstand-
ing the verdict" for defendant; which could be done only,
after verdict and before judgment, where it appeared that
defendant's plea confessed the cause of action and set up
matters in avoidance which, although verified by the ver-
dict, were insufficient to constitute a defense or bar to the
action. But either by statutory enactment or because of
relaxation of the early common-law rule, the generally pre-
vailing rule now is that either plaintiff or defendant may
have a judgment non obstante veredicto in proper cases.
49 C.J.S.Judgments § 60.
Judgment non obstante veredicto in its broadest sense is
a judgment rendered in favor of one party notwithstand-
ing the finding of a verdict in favor of the other party, 49
C.J.S.Judgments § 59.
NON OFFICIT CONATUS NISI SEQUATUR EF-
FECTUS. An attempt does not harm unless a
consequence follow. 11 Coke, 98.
NON OMITTAS. A clause usually inserted in
writs of execution, in England, directing the sher-
iff "not to omit" to execute the writ by reason
of any liberty, because there are many liberties or
districts in which the sheriff has no power to exe-
cute process unless he has special authority. 2
Steph.Comm. 630.
NON OMNE DAMNUM INDUCIT INJURIAM. It
is not every loss that produces an injury. Bract.
fol. 45b.
NON OMNE QUOD LICET HONESTUM EST. It
is not everything which is permitted that is hon-
orable. Dig. 50, 17, 144; Howell v. Baker, 4 Johns.
Ch., N.Y., 121.
NON OMNIUM QUAE A MAJORIBUS NOSTRIS
CONSTITUTA SUNT RATIO REDDI POTEST.
There cannot be given a reason for all the things
which have been established by our ancestors.
Branch, Princ.; 4 Coke, 78; Broom, Max. 157.
NON PERTINET AD JUDICEM SECULAREM
COGNOSCERE DE HS QUIE SUNT MERE
SPIRITUALIA ANNEXA, 2 Inst. 488. It belongs
not to the secular judge to take cognizance of
things which are merely spiritual.
NON NASCI, ET NATUM MORI, PARIA SUNT.
Not to be born, and to be dead-born, are the same.
NON OBLIGAT LEX NISI PROMULGATA. A
law is not obligatory unless it be promulgated.
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NON PLEVIN
NON PLEVIN. In old English law, default in not
replevying land in due time, when the same was
taken by the king upon a default. The conse-
quence thereof (loss of seisin) was abrogated by
St. 9 Edw. III. c. 2.
NON PONENDIS IN ASSISIS ET JURATIS. A.
writ formerly granted for freeing and discharg-
ing persons from serving on assizes and juries.
Fitzh.Nat.Brev. 165.
NON POSSESSOR! INCUMBIT NECESSITAS
PROBANDI POSSESSIONES AD SE PERTIN-
ERE. A person in possession is not bound to
prove that the possessions belong to him. Broom,
Max. 714.
NON POTEST ADDUCI EXCEPTIO EJUS REI
CUJUS PETITUR DISSOLUTIO. An exception of
the same thing whose avoidance is sought cannot
be made. Broom, Max. 166.
NON POTEST PROBARI QUOD PROBATUM
NON RELEVAT. 1 Exch. 91, 92. That cannot be
proved which, if proved, is immaterial.
NON POTEST QUIS SINE BREVI AGERE. No
one can sue without a writ. Fleta, lib. 2, c. 13, §
4. A fundamental rule of old practice.
NON POTEST REX GRATIAM FACERE CUM
INJURIA ET DAMNO ALIORUM. The king can-
not confer a favor on one subject which occasions
injury and loss to others. 3 Inst. 236; Broom,
Max. 63.
NON POTEST REX SUBDITUM RENITENTEM
ONERARE IMPOSITIONIBUS. The king cannot
load a subject with imposition against his consent.
2 Inst. 61.
NON POTEST VIDERI DESISSE HABERA QUI
NUNQUAM HABUIT. He cannot be considered
as having ceased to have a thing who never had it
Dig. 50, 17, 208.
NON PRIESTAT IMPEDIMENTUM QUOD DE
JURE NON SORTITUR EFFECTUM. A thing
which has no effect in law is not an impediment.
Jenk.Cent. 162; Wing.Max. 727.
NON PROCEDENDO AD ASSISSAM REGE IN-
CONSULTO. A writ to put a stop to the trial of
a cause appertaining unto one who is in the
king's service, etc., until the king's pleasure re-
specting the same be known. Cowell.
NON PROS. Abbreviation of non prosequitur.
Bucci v. Detroit Fire & Marine Ins. Co., 109 Pa.
Super. 167, 167 A. 425, 427. At common law, a
judgment entered at instance of defendant when
plaintiff at any stage of proceedings fails to prose-
cute his action, or any part of it, in due time.
Steele v. Beaty, 215 N.C. 680, 2 S.E.2d 854, 856.
NON PROSEQUITUR. Lat. He does not follow
up, or pursue.
If, in the proceedings in an action at law, the plaintiff
neglects to take any of those steps which he ought to take
within the time prescribed by the practice of the court for
that purpose, the defendant may enter judgment of non
pros. against him, whereby it is adjudged that the plaintiff
does not follow up (non prosequitur) his suit as he ought
to do, and therefore the defendant ought to have judgment
against him. Smith, Act. 96; Corn. v. Casey, 12 Allen,
Mass., 218.
NON QUIETA MOVERE. Lat. Not to disturb
what is settled. A rule expressing the same prin-
ciple as that of stare decisis (q. v.).
NON QUdD DICTUM EST, SED QUOD FACTUM
EST INSPICITUR. Not what is said, but what
is done, is regarded. Co.Litt. 36a.
NON REFERT AN QUIS ASSENSUM SUUM
PRIEFERT VERBIS, AUT REBUS IPSIS ET FAC-
TIS. 10 Coke, 52. It matters not whether a man
gives his assent by his words or by his acts and
deeds.
NON REFERT QUID EX ZEQUIPOLLENTIBUS
FIAT. 5 Coke, 122. It matters not which of
[two] equivalents happen.
NON REFERT QUID NOTUM SIT JUDICI, SI
NOTUM NON SIT IN FORMA JUDICII. It mat-
ters not what is known to a judge, if it be not
known in judicial form. 3 Bulst. 115. A leading
maxim of modern law and practice. Best, Ev.In-
trod. 31, § 38.
NON REFERT VERBIS AN FACTIS FIT REVO-
CATIO. Cro.Car. 49. It matters not whether a
revocation is made by words or deeds.
NON RESIDENTIO PRO CLERICO REGIS. A
writ, addressed to a bishop, charging him not to
molest a clerk employed in the royal service, by
reason of his nonresidence; in which case he is
to be discharged. Reg.Orig. 58.
NON RESPONDEBIT MINOR NISI IN CAUSA
DOTIS, ET HOC PRO FAVORE DOTI. 4 Coke,
71. A minor shall not answer unless in a case of
dower, and this in favor of dower.
NON SANJE MENTIS. Lat. Of unsound mind.
Fleta, lib. 6, c. 40, § 1.
NON SEQUITUR. Lat. It does not follow.
NON SOLENT QUIE ABUNDANT VITIARE
SCRIPTURAS. Superfluities  [things  which
abound] do not usually vitiate writings. Dig. 50,
17, 94.
NON SOLUM QUID LICET, SED QUID EST
CONVENIENS, EST CONSIDERANDUM; QUIA
NIHIL QUOD EST INCONVENIENS EST LICI-
TUM. Not only what is lawful, but what is prop-
er or convenient, is to be considered; because
nothing that is inconvenient is lawful.' Co.Litt.
66a.
NON SOLVENDO PECUNIAM AD QUAM CLER-
ICUS MULCTATUR PRO NON-RESIDENTIA. A
writ prohibiting an ordinary to take a pecuniary
mulct imposed on a clerk of the sovereign for
nonresidence. Reg.Writ. 59.
NON SUBMISSIT. Lat. He did not submit. A
plea to an action of debt, on a bond to perform an
award, to the effect that the defendant did not
submit to the arbitration.
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NON-ANCESTRAL
NON SUI JURIS. Lat. Not his own master.
The opposite of sui juris (q. v.).
NON SUM INFORMATUS. Lat. I am not in-
formed; I have not been instructed.
The name of a species of judgment by default, which is
entered when the defendant's attorney announces that he
is not informed of any answer to be given by him; usually
in pursuance of a previous arrangement between the par-
ties. Steph.P1. 130.
NON SUNT LONGA UBI NIIIIL EST QUOD DE-
MERE POSSIS. There is no prolixity where there
is nothing that can be omitted. Vaugh. 138.
NON TEMERE CREDERE EST NERVUS SAPI-
ENTLE. 5 Coke, 114. Not to believe rashly is
the nerve of wisdom.
NON TENENT INSIMUL. Lat. In pleading, a
plea to an action in partition, by which the de-
fendant denies that he and the plaintiff are joint
tenants of the estate in question.
NON TENUIT. Lat. He did not hold. A plea in
bar in replevin, by which the plaintiff alleges that
he did not hold in manner and form as averred,
being given in answer to an avowry for rent in ar-
rear. Rose. Real Act. 638.
NON USURPAVIT. Lat. He has not usurped. A
form of traverse, in an action or proceeding
against one alleged to have usurped an office or
franchise, denying the usurpation charged. Com.
v. Cross Cut R. Co., 53 Pa. 62.
NON VALEBIT FELON'S GENERATIO, NEC AD
HIEREDITATEM PATERNAM VEL MATER-
NAM; SI AUTEM ANTE FELONIAM GENERA-
TIONEM FECERIT, TAUS GENERATIO SUC-
CEDIT IN HIEREDITATE PATRIS VEL MATRIS
A QUO NON FUERIT FELONIA PERPETRATA.
3 Coke, 41. The offspring of a felon cannot suc-
ceed either to a maternal or paternal inheritance;
but, if he had offspring before the felony, such off-
spring may succeed as to the inheritance of the fa-
ther or mother by whom the felony was not com-
mitted.
NON VALENTIA AGERE. Inability to sue. 5
Bell, App.Cas. 172.
NON VALET CONFIRMATIO, NISI ILLE, QUI
CONFIRMAT, SIT IN POSSESSIONE REI VEL
JURIS UNDE FIERI DEBET CONFIRMATIO;
ET EODEM MODO, NISI ILLE CUI CONFIRM-
ATIO FIT SIT IN POSSESSIONE. Co.Litt. 295.
Confirmation is not valid unless he who confirms
is either in possession of the thing itself or of the
right of which confirmation is to be made, and, in
like manner, unless he to whom confirmation is
made is in possession.
NON VALET DONATIO NISI SUBSEQUATUR
TRADITIO. A gift is not valid unless accompan-
ied by possession. Bract. 39b.
NON VALET EXCEPTIO EJUSDEM REI CUJUS
PETITUR DISSOLUTIO. A plea of the same
matter the dissolution of which is sought, is not
valid. Called a "maxim of law and common
sense." 2 Eden, 134.
NON VALET IMPEDIMENTUM QUOD DE JURE
NON SORTITUR EFFECTUM. 4 Coke, 31a. An
impediment which does not derive its effect from
law is of no force.
NON VERBIS, SED IPSIS REBUS, LEGES IM-
PONIMUS. Cod. 6, 43, 2. We impose laws, not
upon words, but upon things themselves.
NON VIDENTUR QUI ERRANT CONSENTIRE.
They are not considered to consent who commit a
mistake. Dig. 50, 17, 116, § 2; Broom, Max. 262.
NON VIDENTUR REM AMITTERE QUIOUS
PROPRIA NON FUIT. They are not considered
as losing a thing whose own it was not. Dig. 50,
17, 85.
NON VIDETUR CONSENSUM RETINUISSE SI
QUIS EX PRAESCRIPTO MINANTIS ALIQUID
IMMUTAVIT. He does not appear to have retain-
ed consent, who has changed anything through
menaces. Broom, Max. 278.
NON VIDETUR PERFECTE CUJUSQUE ID
ESSE, QUOD EX CASU AUFERRI POTEST.
That does not seem to be completely one's own
which can be taken from him on occasion. Dig.
50, 17, 139, 1.
NON VIDETUR QUISQUAM ID CAPERE QUOD
EI NECESSE EST ALB RESTITUTERE. Dig. 50,
17, 51. No one is considered entitled to recover
that which he must give up to another.
NON VIDETUR VIM FACERE, QUI JURE SUO
UTITUR ET ORDINARIA ACTIONE EXPERI-
TUE. He is not deemed to use force who exercis-
es his own right, and proceeds by ordinary action.
Dig. 50, 17, 155, 1.
NON VULT CONTENDERE. Lat. He (the de-
fendant in a criminal case) will not contest it. A
plea legally equivalent to that of guilty, being a
variation of the form "nolo contendere," (q. v.,)
and sometimes abbreviated "non volt."
NON-ABILITY. Want of ability to do an act in
law, as to sue. A plea founded upon such cause.
Cowell.
NON-ACCEPTANCE. The refusal to accept any-
thing.
NON-ACCESS. Absence of opportunities for sex-
ual intercourse between husband and wife; or the
absence of such intercourse.
NON-ADMISSION. The refusal of admission.
NON-AGE. Lack of requisite legal age. The
condition of a person who is under twenty-one
years of age, in some cases, and under fourteen
or twelve in others; minority.
NON-ANCESTRAL ESTATE. Realty coming to
deceased in any way other than by descent or de-
vise from a now dead ancestor, or by deed of ac-
tual gift from a living one, there being no other
consideration than that of blood. In re Yahola's
Heirship, 142 Okl. 79, 285 P. 946, 948. One acquir-
ed by purchase or by act or agreement of the par-
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NON-APPARENT
ties, as distinguished from one acquired by descent
or by operation of law. Gray v. Chapman, 122
Okl. 130, 243 P. 522, 524.
NON-APPARENT EASEMENT. A non-continu-
ous or discontinuous easement. Fetters v. Hum-
phreys, 18 N.J.Eq. 262. See Easement.
NON-APPEARANCE. A failure of appearance;
the omission of the defendant to appear within the
time limited.
NON-ASSESSABLE. This word, placed upon a
certificate of stock, does not cancel or impair the
obligation to pay the amount due upon the shares
created by the acceptance and holding of such cer-
tificate. At most its legal effect is a stipulation
against liability from further assessment or taxa-
tion after the entire subscription of one hundred
per cent. shall have been paid. Upton v. Tribil-
cock, 91 U.S. 45, 23 L.Ed. 203; Porter v. Northern
Fire & Marine Ins. Co., 36 N.D. 199, 161 N.W. 1012,
1014.
NON-BAILABLE. Not admitting of bail; not re-
quiring bail.
NON-CANCELLABLE. The term merely limited
the right of assurer to cancel after an illness or
accident, so long as the premium was paid. Dudg-
eon v. Mutual Ben. Health & Accident Ass'n, C.C.
A.W.Va., 70 F.2d 49, 52.
NON-CLAIM. The omission or neglect of him
who ought to claim his right within the time limit-
ed by law; as within a year and a day where a
continual claim was required, or within five years
after a fine had been levied. Termes de la Ley.
Covenant of Non-Claim. See Covenant.
NON-COMBATANT. A person connected with
an army or navy, but for purposes other than
fighting; such as the surgeons and chaplains.
Also a neutral.
NON-COMMISSIONED. A non-commissioned of-
ficer of the army or militia is a subordinate of-
ficer who holds his rank, not by commission from
the executive authority of the state or nation, but
by appointment by a superior officer.
NON-COMPETITIVE TRAFFIC. Traffic which
originates at a point served by a single haul car-
rier, or which is consigned to an industry on a line
whose switching charge is not absorbed by a com-
peting line-haul carrier. Northern Pac. Ry. Co. v.
United States, D.C.Minn., 41 F.Supp. 439, 441.
NON-CONFORMING USES. Uses permitted by
zoning statutes or ordinances to continue notwith-
standing similar uses are not permitted in area in
which they are located. Beyer v. Mayor and Coun-
cil of Baltimore City, 182 Md. 444, 34 A.2d 765, 766.
NON-CONFORMIST. In English law, one who
refuses to comply with others; one who refuses
to join in the established forms of worship.
Non-conformists are of two sorts : (1) such . as absent
themselves from divine worship in the Established Church
through total irreligion, and attend the service of no other
persuasion; (2) such as attend the religious service of
another persuasion. Wharton.
NON-CONTESTABLE. A non-contestable clause
secures to insured indemnity by way of short lim-
itations by contract against belated charges of
fraud and mistake and rescission therefor, when
he has acted thereon to his detriment by payment
of premiums and foregoing other insurance. Pa-
cific Mut. Life Ins. Co. of California v. Strange,
226 Ala. 98, 145 So. 425, 426.
NON-CONTINUOUS EASEMENT. "Continuous
easement" is one which may be enjoyed without
any act by party claiming it, while "noncontinu-
ous easement," such as right of way, is one to en-
joyment of which party's act is essential. Wau-
bun Beach Ass'n v. Wilson, 274 Mich. 598, 265 N.
W. 474, 477, 103 A.L.R. 983. A non-apparent or dis-
continuous easement. Fetters v. Humphreys, 18
N.J.Eq. 262. See Easement.
NON-CUMULATIVE DIVIDENDS. "Cumulative
dividends" must be paid regardless of the year in
which they are earned, whereas "noncumulative
dividends" paid in a year are dependent upon earn-
ings of that year. Barclay v. Wabash Ry. Co., C.
C.A.N.Y., 30 F.2d 260, 262.
NON-DELIVERY. Neglect, failure, or refusal to
deliver goods, on the part of a carrier, vendor,
bailee, etc.
NONDESCRIPT. A "nondescript" in the labor
market is unfitted to do even light work of general
character, but fitted to do odd jobs not generally
obtainable. Babcock v. Babcock & Wilcox Co., 137
Pa.Super. 517, 9 A.2d 492, 494, 496.
NON-DETACHABLE FACILITIES. Facilities
which may not be put back into channels of com-
merce. Briggs Mfg. Co. v. U. S., D.C.Conn., 30
F.2d 962, 967.
NON-DIRECTION. Omission on the part of a
judge to properly instruct the jury upon a neces-
sary conclusion of law.
NON-DISCLOSURE. A failure to reveal facts,
which may exist when there is no "concealment."
State v. Watson, 145 Kan. 792, 67 P.2d 515, 517,
110 A.L.R. 998.
NON-ENUMERATED DAY. A motion day in
New York on which the court hears motions class-
ified as "non-enumerated motions." Jackson v.
, 2 Caines (N.Y.) 259. For a collection of
cases holding particular motions to be either enu-
merated or non-enumerated motions, see 66 C.J.S.
Non, p. 603, n. 36(26).
NON-FORFEITABLE. Not subject to forfeiture.
Columbian Nat. Life Ins. Co. v. Griffith, C.C.A.Mo.,
73 F.2d 244, 246.
NON-FUNCTIONAL. A feature of goods is "non-
functional" if it does not affect their purpose, ac-
tion or performance, or the facility or economy of
processing, handling or using them. In effect a
mere form of merchandising or a business method.
J. C. Penney Co. v. H. D. Lee Mercantile Co., C.C.
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NON-WAIVER
A.Mo., 20 F.2d 949, 954. A feature if, when omit-
ted, nothing of substantial value in the goods is
lost. Ainsworth v. Gill Glass & Fixture Co., D.C.
Pa., 26 F.Supp. 183, 187.
NON-INTERCOURSE. The refusal of one state
or nation to have commercial dealings with an-
other; similar to an embargo (q. v.).
The absence of access, communication, or sexual
relations between husband and wife.
NON-INTERVENTION WILL. A term some-
times applied to a will which authorizes the execu-
tor to settle and distribute the estate without
the intervention of the court and without giving
bond. In re Macdonald's Estate, 29 Wash. 422, 69
P. 1111.
NON-ISSUABLE PLEAS. Those upon which a
decision would not determine the action upon the
merits, as a plea in abatement. 1 Chit.Archb.Pr.
12th Ed., 249.
NON-JOINDER. See Joinder.
NON-JUDICIAL DAY. Day on which process
cannot ordinarily issue or be executed or returned,
and on which courts do not usually sit. Vidal v.
Backs, 218 Cal. 99, 21 P.2d 952, 86 A.L.R. 1134.
NON-JURORS. In English law, persons who re-
fuse to take the oaths, required by law, to support
the government.
NON-LEVIABLE. Not subject to be levied upon.
Non-leviable assets are assets upon which an ex-
ecution cannot be levied. Farmers' F. Ins. Co. v.
Conrad, 102 Wis. 387, 78 N.W. 582.
NON-MAILABLE. A term applied to all letters
and parcels which are by law excluded from trans-
portation in the United States mails, whether on
account of the size of the package, the nature of
its contents, its obscene character, or for other
reasons. U. S. v. Nathan, D.C.Iowa, 61 F. 936.
NON-MEDICAL POLICY. One issued without
medical examination of an applicant. Reserve
Loan Life Ins. Co. of Texas v. Brown, Tex.Civ.
App., 159 S.W.2d 179, 180.
NON-MERCHANTABLE TITLE. The title to
realty need not be bad in fact to render it "non-
merchantable", but it is sufficient, if an ordinarily
prudent man with knowledge of facts and aware
of legal questions involved would not accept it in
ordinary course of business. Ghormley v. Kleed-
en, 155 Kan. 319, 124 P.2d 467, 470.
NON-NAVIGABLE. At common law, streams or
bodies of water not affected by tide were "non-
navigable". Luscher v. Reynolds, 153 Or. 625,
56 P.2d 1158, 1162.
NON-NEGOTIABLE. Not negotiable; not cap-
able of passing title or property by indorsement
and delivery.
NON-OCCUPATIONAL. Not of or pertaining to
an occupation, trade, or work. Morgan v. Equita-
ble Life Assur. Soc. of U. S., La.App., 22 So.2d 595,
597.
NON-PERFORMANCE. Neglect, failure, or re-
fusal to do or perform an act stipulated to be
done. Failure to keep the terms of a contract or
covenant, in respect to acts or doings agreed upon.
NON-PROFIT. A "non-profit" corporation is one
not designed primarily to pay dividends on invest-
ed capital. Greene County Rural Electric Co-op-
erative v. Nelson, 234 Iowa 362, 12 N.W.2d 886, 888.
NON-RESIDENCE. Residence beyond the limits
of the particular jurisdiction.
In ecclesiastical law. The absence of spiritual
persons from their benefices.
NON-RESIDENT. One who is not a dweller
within jurisdiction In question; not an inhabitant
of the state of the forum. Gardner v. Meeker, 169
Ill. 40, 48 N.E. 307; Nagel v. Loomis, 33 Neb. 499,
50 N.W. 441. For the distinction between "resi-
dence" and "domicile," see Domicile.
NON-SANE. As "sane," when applied to the
mind, means whole, sound, in a healthful state,
"non-sane" must mean not whole, not sound, not
in a healthful state; that is, broken, impaired,
shattered, infirm, weak, diseased, unable, either
from nature or accident, to perform the rational
functions common to man upon the objects pre-
sented to it. Den v. Vancleve, 5 N.J.L. 589, 661.
NON-SANE MEMORY. Unsound memory; un-
sound mind. In re Beaumont, 1 Whart., Pa., 52,
29 Am.Dec. 33; In re Forman's Will, 54 Barb., N.
Y., 286.
NON-SUMMONS, WAGER OF LAW OF. The
mode in which a tenant or defendant in a real ac-
tion pleaded, when the summons which followed
the original was not served within the proper time.
NON-TENURE. A plea in a real action, by which
the defendant asserts, either as to the whole or as
to some part of the land mentioned in the plain-
tiff's declaration, that he does not hold it. Pub.
St.Mass.1882, p. 1293.
NON-TERM. The vacation between two terms
of a court.
NON-TERMINUS. The vacation between term
and term, formerly called the time of days of the
king's peace.
NON-TRADER. Person not engaged in buying
and selling so as to be required to establish credit
in commercial world. First Nat. Bank v. Ducros,
27 Ala.App. 193, 168 So. 704, 706.
NON-USER. Neglect to use. Neglect to use a
franchise; neglect to exercise an office. 2 Bl.
Comm. 153. Neglect or omission to use an ease-
ment or other right. 3 Kent, Comm. 448. A right
acquired by use may be lost by non-user.
NON-WAIVER AGREEMENT. A "nonwaiver
agreement" reserves to insurer every right under
fire policy not previously waived, and to the in-
sured every right which had not been forfeited.
"Etna Ins. Co. of Hartford, Conn., v. Powers, 190
Okl. 116, 121 P.2d 599, 602.
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NONIE
NONE ET DECIMIE. Payments made to the
church, by those who were tenants of church-
farms. The first was a rent or duty for things be-
longing to husbandry; the second was claimed in
right of the church. Wharton.
NONAGIUM, or NONAGE. A ninth part of mov-
ables which was paid to the clergy on the death
of persons in their parish, and claimed on pre-
tense of being distributed to pious uses. Blount.
NONES. In the Roman calendar, the fifth, and, in
March, May, July, and October, the seventh, day
of the month. So called because, counting inclu-
sively, they were nine days from the ides. Adams,
Rom.Ant. 355, 357.
Under the word "Ides" in Bouvier's Law Diet., Rawle's
3d Rev., p. 1486, will be found a complete table of the
calends, nones, and ides.
NONFEASANCE. Nonperformance of some act
which ought to be performed, omission to perform
a required duty at all, or total neglect of duty.
Brooks v. Jacobs, 139 Me. 371, 31 A.2d 414, 416.
The term is not generally used to denote a breach of con-
tract, but rather the failure to perform a duty towards the
public whereby some individual sustains special damage,
as where a sheriff fails to execute a writ. Sweet. Coite v.
Lines, 33 Conn. 115; Gregor v. Cady, 82 Me. 131, 19 A. 108,
17 Am.St.Rep. 466.
There is a distinction between "nonfeasance" and "mis-
feasance" or "malfeasance"; and this distinction is often
of great importance in determining an agent's liability to
third persons. "Nonfeasance" means the total omission or
failure of an agent to enter upon the performance of some
distinct duty or undertaking which he has agreed with his
principal to do; "misfeasance" means the improper doing
of an act which the agent might lawfully do, or, in other
words, it is the performing of his duty to his principal
in such a manner as to infringe upon the rights and privi-
leges of third persons; and "malfeasance" is a doing of an
act which he ought not to do at all. Owens v. Nichols, 139
Ga. 475, 77 S.E. 635, 636; Maddock v. Riggs, 106 Kan. 808,
190 P. 12, 14, 12 A.L.R. 216.
NONNA. In old ecclesiastical law. A nun. Non-
nus, a monk. Spelman.
NONPAYMENT. The neglect, failure, or refusal
of payment of a debt o'r evidence of debt when due.
NONSENSE. Unintelligible matter in a written
agreement or will.
NONSUIT. A term broadly applied to a variety
of terminations of an action which do not adjudi-
cate issues on the merits. McColgan v. Jones,
Hubbard & Donnell, 11 Cal.2d 243, 78 P.2d 1010,
1011. Name of a judgment given against the
plaintiff when he is unable to prove a case, or
when he refuses or neglects to proceed to trial
and leaves the issue undetermined. Carolina.
Transportation & Distributing Co. v. American Al-
liance Ins. Co., 214 N.C. 596, 200 S.E. 411, 413.
Judgment of Nonsuit is of two kinds,--voluntary and
involuntary. When plaintiff abandons his case, and con-
sents that judgment go against him for costs, it is volun-
tary. But when he, being called, neglects to appear, or
when he has given no evidence on which a jury could find
a verdict, or when his case is put out of court by some
adverse ruling precluding a recovery, it is involuntary.
Freem.Judgm. § 6.
A peremptory nonsuit is a compulsory or involuntary
nonsuit, ordered by the court upon a total failure of the
plaintiff to substantiate his claim by evidence. Jacques v.
Fourthman, 137 Pa. 428, 20 A. 802.
Motion for Nonsuit. A motion In the nature of a demur-
rer to the evidence. Woods v. Wikstrom, 67 Or. 581, 135
P. 192, 195; Biurrun v. Elizalde, 75 Cal.App. 44, 242 P. 109,
113.
NOOK OF LAND, In English law, twelve acres
and a half.
NORI TSUKUDANI. Seaweed. Togasaki & Co.
v. U. S., 12 Ct.Cust.App. 463, 465.
NORMAL. According to, constituting, or not de-
viating from an established norm, rule, or prin-
ciple; conformed to a type, standard or regular
form; performing the proper functions; regular;
natural. Webster; Railroad Commission v. Kon-
owa Operating Co., Tex.Civ.App., 174 S.W.2d 605,
609.
NORMAL LAW. A term employed by modern
writers on jurisprudence to denote the law as it
affects persons who are in a normal condition; i.
e., sui juris and sound in mind.
NORMAL MIND. One which in strength and ca-
pacity ranks reasonably well with the average of
the great body of men and women who make up
organized human society in general and are by
common consent recognized as sane and competent
to perform the ordinary duties and assume the or-
dinary responsibilities of life. State v. Haner, 186.
Iowa, 2159, 173 N.W. 225, 226.
NORMAL SCHOOL. See School.
NORMALLY. As a rule; regularly; according
to rule, general custom, etc. Palmer v. Jordan
Mach. Co., C.C.N.Y., 186 F. 496, 504.
NORMAN FRENCH. The tongue in which sever-
al formal proceedings of state in England are still
carried on. The language, having remained the
same since the date of the Conquest, at which it
was introduced into England, is very different
from the French of this day, retaining all the pecu-
liarities which at that time distinguished every
province from the rest. A peculiar mode of pro-
nunciation (considered authentic) is handed down
and preserved by the officials who have, on par-
ticular occasions, to speak the tongue. Norman.
French was the language of English legal proce-
dure till the 36 Edw. III. (A.D.1362). Wharton.
NORROY. In English law, the title of the third
of the three kings-at-arms, or provincial heralds.
NORTH. Means due north. Same with word
northerly. Brandt v. Ogden, 1 Johns., N.Y., 156;
Currier v. Nelson, 96 Cal. 505, 31 P. 531, 746, 31
Am.St.Rep. 239.
NORTHAMPTON, ASSIZE OF. An assize held
in 1176; in it, the king confirmed and perfected
the judicial legislation which he had begun ten
years before in the Assize of Clarendon. Stephen,
Cr.Proc. in 2 Essays in Anglo-Amer. L.H. 445; Mrs.
J. R. Green in 1 id.
NORTHAMPTON TABLES. Longevity and an-
nuity tables compiled from bills of mortality kept
in All Saints parish, England, in 1735-1780.
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NOTARY
NORTHWEST TERRITORY. A name formerly
applied to the territory northwest of the Ohio river.
NOSCITUR A SOCIIS. It is known from its as-
sociates. 1 Vent. 225. The meaning of a word is
or may be known from the accompanying words.
3 Term R. 87; Broom, Max. 588. Morecock v.
Hood, 202 N.C. 321, 162 S.E. 730, 731; Louis Pizitz
Dry Goods Co. v. Fidelity & Deposit Co. of Mary-
land, 223 Ala. 385, 136 So. 800, 801.
The doctrine means that general and specific words are
associated with and take color from each other, restricting
general words to sense analogous to less general. Dunham
v. State, 140 Fla. 754, 192 So. 324, 325, 326.
NOSCITUR EX SOCIO, QUI NON COGNOSCI-
TUR EX SE. Moore, 817. He who cannot be
known from himself may be known from his as-
sociate.
NOSOCOMI. In the civil law, persons who have
the management and care of hospitals for paupers.
NOSTRUM. A quack, patent, or proprietary med-
icine recommended by its proprietor, or one the
ingredients of which are kept secret for the pur-
pose of restricting the profits of sale to the invent-
or or proprietor. World's Dispensary Medical
Ass'n v. Collier, 86 Misc. 217, 148 N.Y.S. 405, 409.
NOT EXCEEDING. Usually a term of limitation
only, denoting uncertainty of amount. Stuyves-
ant Ins. Co. v. Jacksonville Oil Mill, C.C.A.Tenn.,
10 F.2d 54, 56.
NOT FOUND. These words, indorsed on a bill
of indictment by a grand jury, have the same ef-
fect as the indorsement "Not a true bill" or "Ig-
noramus."
See, also, Non Est Inventus.
NOT GUILTY. A plea of the general issue in the
actions of trespass and case and in criminal prose-
cutions.
The form of the verdict in criminal cases, where
the jury acquit the prisoner. 4 Bl.Comm. 361.
NOT GUILTY BY STATUTE. In English prac-
tice, a plea of the general issue by a defendant
in a civil action, when he intends to give special
matter in evidence by virtue of some act or acts
of parliament, in which case he must add the ref-
erence to such act or acts, and state whether such
acts are public or otherwise. But, if a defendant
so plead, he. will not be allowed to plead any oth-
er defense, without the leave of the court or a
judge. Mozley & Whiteley.
NOT LATER THAN. "Within" or "not beyond"
time specified. Hansen v. Bacher, Tex.Com.App.,
299 S.W. 225, 227.
NOT LESS THAN. The words "not less than"
signify in the smallest or lowest degree, at the
lowest estimate; at least. Watson v. City of Sal-
em, 84 Or. 666, 164 P. 567, 568; Miller v. Rodd, 285
Pa. 16, 131 A. 482, 483.
NOT POSSESSED. A special traverse used in an
action of trover, alleging that defendant was not
possessed, at the time of action brought, of the
chattels alleged to have been converted by him.
NOT PROVEN. A verdict in a Scotch criminal
trial, to the effect that the guilt of the accused is
not made out, though his innocence is not clear.
NOT SATISFIED. A return sometimes made by
sheriffs or constables to a writ of execution; but
it is not a technical formula, and is condemned by
the courts as ambiguous and insufficient. Martin
v. Martin, 50 N.C. 346; Langford v. Few, 146 Mo.
142, 47 S.W. 927, 69 Am.St.Rep. 606.
NOT TO BE PERFORMED WITHIN ONE YEAR.
The clause "not to be performed within one year"
includes any agreement which by a reasonable in-
terpretation in view of all the circumstances does
not admit of its performance, according to its lan-
guage and intention, within one year from the
time of its making. Mrs. K. Edwards & Sons v.
Farve, 110 Miss. 864, 71 So. 12, 13.
NOT TRANSFERABLE. These words, when
written across the face of a negotiable instrument,
operate to destroy its negotiability. Durr v. State,
59 Ala. 24.
NOTA. Lat. In the civil law, a mark or brand
put upon a person by the law. Mackeld. Rom.
Law, § 135.
NOTE. In civil and old European law, short-hand
characters or marks of contraction, in which the
emperors' secretaries took down what they dictat-
ed. Spelman; Calvin.
NOTARIAL. Taken by a notary; performed by a
notary in his official capacity; belonging to a no-
tary and evidencing his official character, as, a
notarial seal.
NOTARIAL WILL. A will executed by the testa-
tor in the presence of a Notary Public and two wit-
nesses.
NOTARIUS. Lat.
In old English law. A scribe or scrivener who
made short draughts of writings and other in-
struments; a notary. Cowell.
In Roman law. A draughtsman; an amanuen-
sis; a shorthand writer; one who took notes of
the proceedings in the senate or a court, or of what
was dictated to him by another; one who prepared
draughts of wills, conveyances, etc.
NOTARY PUBLIC. A public officer whose func-
tion it is to administer oaths; to attest and certify,
by his hand and official seal, certain classes of doc-
uments, in order to give them credit and authen-
ticity in foreign jurisdictions; to take acknowledg-
ments of deeds and other conveyances, and certify
the same; and to perform certain official acts,
chiefly in commercial matters, such as the protest-
ing of notes and bills, the noting of foreign drafts,
and marine protests in cases of loss or damage.
Kip v. People's Bank & Trust Co., 110 N.J.L. 178,
164 A. 253, 254.
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NOTATION. In English probate practice, the act
of making a memorandum of some special cir-
cumstance on a probate or letters of administra-
tion.
Thus, where a grant is made for the whole personal
estate of the deceased within the United Kingdom, which
can only be done in the case of a person dying domiciled
in England, the fact of his having been so domiciled is
noted on the grant. Coote, Prob.Pr. 36; Sweet.
NOTCHELL, or NOCHELL. "Crying the wife's
Notchell" seems to have been a means of pre-
venting her running up debts against her husband.
20 Law Mag. & Rev. 280.
It is the custom in Lancashire for a man to advertise
that he will not be responsible for debts contracted by her
[his wife] after that date. He is thus said to notchel her,
and the advertisement is termed a notchel notice. N. and
Q., 7th ser., VIII, 268, quoted in Cent.Dict.
NOTE, v. To make a brief written statement;
to enter a memorandum; as to note an exception.
NOTE, n. A unilateral instrument containing an
express and absolute promise of signer to pay to
a specified person or order, or bearer, a definite
sum of money at a specified time. Shawano Fi-
nance Corporation v. Julius, 214 Wis. 637, 254 N.W.
355. An abstract, a memorandum; an informal
statement in writing. Road Improvement Dist.
No. 4 of Cleveland County v. Southern Trust Co.,
152 Ark. 422, 239 S.W. 8, 11; American Nat. Bank
v. Marshall, 122 Kan. 793, 253 P. 214, 215. See
Bought Note; Notes; Judgment Note; Promis-
sory Note; Sold Note.
NOTE A BILL. When a foreign bill has been dis-
honored, it is usual for a notary public to present
it again on the same day, and, if it be not then
paid, to make a minute, consisting of his initials,
the day, month, and year, and reason, if assigned,
of non-payment. The making of this minute is
called "noting the bill." Wharton.
NOTE OF A FINE. In old' conveyancing, one of
the parts of a fine of lands, being an abstract of
the writ of covenant, and the concord; naming the
parties, the parcels of land, and the agreement.
2 Bl.Comm. 351.
NOTE OF ALLOWANCE. In English practice, a
note delivered by a master to a party to a cause,
who alleged that there was error in law in the rec-
ord and proceedings, allowing him to bring error.
NOTE OF HAND. A popular name for a promis-
sory note. Perry v. Maxwell, 17 N.C. 496; Hop-
kins v. Holt, 9 Wis. 230.
NOTE OF PROTEST. A memorandum of the
fact of protest, indorsed by the notary upon the
bill, at the time, to be afterwards written out at
length.
NOTE OR MEMORANDUM. Under statute of
frauds, an informal minute or memorandum made
on the spot. Clason v. Bailey, 14 Johns., N.Y. 492.
It must contain all the essential elements and sub-
stantial parts of the contract. Stanley v. A. Levy
& J. Zentner Co., 60 Nev. 432, 112 P.2d 1047, 1053.
NOTES. In practice, memoranda made by a judge
on a trial, as to the evidence adduced, and the
points reserved, etc. A copy of the judge's notes
may be obtained from his clerk.
NOTHUS. Lat. In Roman law, a natural child
or a person of spurious birth.
NOTICE. Information; the result of observation,
whether by the senses or the mind; knowledge of
the existence of a fact or state of affairs; the
means of knowledge. Abercrombie v. Virginia-
Carolina Chemical Co., 206 Ala. 615, 91 So. 311, 312;
Knights and Ladies of Security v. Bell, 93 Old. 272,
220 P. 594, 597.
Knowledge of facts which would naturally lead an honest
and prudent person to make inquiry constitutes "notice"
of everything which such inquiry pursued in good faith
would disclose. Twitchell v. Nelson, 131 Minn. 375, 155
N.W. 621, 624 ; German-American Nat. Bank of Lincoln v.
Martin, 277 Ill. 629, 115 N.E. 721, 729.
In another sense, "notice" means information, an advice,
or written warning, in more or less formal shape, intended
to apprise a person of some proceeding in which his inter-
ests are involved, or informing him of some fact which it
is his right to know and the duty of the notifying party to
communicate.
Under the Negotiable Instrument Law "notice" of infir-
mity of instrument is actual knowledge or knowledge of
such facts that taking note amounts to bad faith. Glendo
State Bank v. Abbott, 30 Wyo. 98, 216 P. 700, 702, 34 A.L.R.
294.
Notice is either (1) statutory,  e. made so by legisla-
tive enactment; (2) actual, which brings the knowledge of
a fact directly home to the party; or (3) constructive.
Constructive notice may be subdivided into : (a) Where
there exists actual notice of matter, to which equity has
added constructive notice of facts, which an inquiry after
such matter would have elicited; and (b) where there has
been a designed abstinence from inquiry for the very pur-
pose of escaping notice. Wharton.
Actual notice has been defined as notice expressly and
actually given, and brought home to the party directly.
Jordan v. Pollock, 14 Ga. 145; McCray v. Clar, 82 Pa. 457:
Morey v. Milliken, 86 Me. 464, 30 A. 102. The term "actual
notice," however, is generally given a wider meaning as
embracing two classes, express and implied; the former
includes all knowledge of a degree above that which
depends upon collateral inference, or which imposes upon
the party the further duty of inquiry; the latter imputes
knowledge to the party because he is shown to be conscious
of having the means of knowledge. In this sense actual
notice is such notice as is positively proved to have been
given to a party directly and personally, or such as he is
presumed to have received personally because the evidence
within his knowledge was sufficient to put him upon in-
quiry. Picklesimer v. Smith, 164 Ga. 600, 139 S.E. 72, 74;
White v. Fisher, 77 Ind. 65, 40 Am.Rep. 287.
Constructive notice is information or knowledge of a fact
imputed by law to a person, (although he may not actually
have it), because he could have discovered the fact by prop-
er diligence, and his situation was such as to cast upon him
the duty of inquiring into it. Baltimore v. Whittington, 78
Md. 231, 27 A. 984; Acer v. Westcott, 46 N.Y. 384, 7 Am.
Rep. 355.
Notice is also further classified as express or implied.
Express notice embraces not only knowledge, but also that
which is communicated by direct information, either writ-
ten or oral, from those who are cognizant of the fact com-
municated. Baltimore v. Whittington, 78 Md.• 231, 27 A.
984. Implied notice is one of the varieties of actual notice
(not constructive) and is distinguished from "express"
actual notice. It is notice inferred or imputed to a party
by reason of his knowledge of facts or circumstances col-
lateral to the main fact, of such a character as to put him
upon inquiry, and which, if the inquiry were followed up
with due diligence, would lead him definitely to the knowl-
edge of the main fact. Rhodes v. Outcalt, 48 Mo. 370;
Baltimore v. Whittington, 78 Md. 231, 27 A. 984; Wells v.
Sheerer, 78 Ala. 147.
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"Constructive notice" is a presumption of law, making it
impossible for one to deny the matter concerning which
notice is given, while "implied notice" is a presumption of
fact, relating to what one can learn by reasonable inquiry,
and arises from actual notice of circumstances, and not
from constructive notice. Charles v. Roxana Petroleum
Corporation, C.C.A.Okl., 282 F. 983, 988. Or as otherwise
defined, implied notice may be said to exist where_ the fact
in question lies open to the knowledge of the party, so that
the exercise of reasonable observation and watchfulness
would not fail to apprise him of it, although no one has
told him of it in so many words. See City of Philadelphia
v. Smith, Pa., 16 A. 493.
Averment of Notice. The statement in a plead-
ing that notice has been given.
Immediate Notice. Under an insurance policy,
notice of loss within reasonable time under circum-
stances of case. National Surety Co. v. Western
Pac. Ry. Co., Cal., 119 C.C.A. 91, 200 F. 675, 687;
Southern States Fire Ins. Co. v. Hand-Jordan Co.,
112 Miss. 565, 73 So. 578, 579.
Judicial Notice. See Judicial Notice.
Legal Notice. See Legal Notice.
Personal Notice.  Communication of notice
orally or in writing (according to the circum-
stances) directly to the person affected or to be
charged, as distinguished from constructive or im-
plied notice, and also from notice imputed to him
because given to his agent or representative. Loeb
v. Huddleston, 105 Ala. 257, 16 So. 714; Pearson v.
Lovejoy, 53 Barb., N.Y., 407.
Presumptive Notice. Implied actual notice.
The difference between "presumptive" and "con-
structive" notice is that the former is an inference
of fact which is capable of being explained or con-
tradicted, while the latter is a conclusion of law
which cannot be contradicted. Brown v. Baldwin,
121 Mo. 106, 25 S.W. 858; Brush v. Ware, 15 Pet.
98, 10 L.Ed. 672.
Public Notice. Notice given to the public
generally, or to the entire community, or to all
whom it may concern. Pennsylvania Training
School v. Independent Mut. F. Ins. Co., 127 Pa.
559, 18 A. 392.
Reasonable Notice. Such notice or informa-
tion of a fact as may fairly and properly be ex-
pected or required in the particular circumstances.
Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N.W.
1019; Mallory v. Leiby, 1 Kan. 102.
NOTICE IN LIEU OF SERVICE. In lieu of per-
sonally serving a writ of summons (or other legal
process,) in English practice, the court occasion-
ally allows the plaintiff (or other party) to give
notice in lieu of service, such notice being such as
will in all probability reach the party. This notice
is peculiarly appropriate in the case of a foreigner
out of the jurisdiction, whom it is desired to serve
with a writ of summons. Sweet.
NOTICE OF ACTION. When it is intended to sue
certain particular individuals, as in the case of ac-
tions against justices of the peace, it is necessary
in some jurisdictions to give them notice of the ac-
tion some time before.
NOTICE OF APPEARANCE. See Appearance.
NOTICE OF DISHONOR. See Dishonor.
NOTICE OF JUDGMENT. It is required by stat-
ute in several of the states that the party for whom
the verdict in an action has been given shall serve
upon the other party or his attorney a written no-
tice of the time when judgment is entered.
NOTICE OF LIS PENDENS. See Lis Pendens.
NOTICE OF MOTION. A substitute for writ and
declaration in common-law actions, which notifies
defendant when and where he is to appear and
sets forth cause of complaint. Baldwin v. Norton
Hotel, 163 Va. 76, 175 S.E. 751. A notice in writ-
ing, entitled in a cause, stating that, on a certain
day designated, a motion will be made to the court
for the purpose or object stated. Field v. Park,
20 Johns., N.Y., 140.
NOTICE OF PROTEST. See Protest.
NOTICE OF TRIAL. A notice given by one of the
parties in an action to the other, after an issue
has been reached, that he intends to bring the
cause forward for trial at the next term of the
court.
NOTICE TO ADMIT. In the practice of the Eng-
lish high court, either party to an action may call
on the other party by notice to admit the existence
and execution of any document, in order to save
the expense of proving it at the trial; and the
party refusing to admit must bear the costs of
proving it unless the judge certifies that the re-
fusal to admit was reasonable. Rules of Court,
xxxii. 2; Sweet.
NOTICE TO PLEAD. This is a notice which, in
the practice of some states, is prerequisite to the
taking judgment by default. It proceeds from the
plaintiff, and warns the defendant that he must
plead to the declaration or complaint within a pre-
scribed time.
NOTICE TO PRODUCE. In practice, a notice in
writing, given in an action at law, requiring the
opposite party to produce a certain described paper
or document at the trial. Chit.Archb.Pr. 230; 3
Chit.Gen.Pr. 834.
NOTICE TO QUIT. A written notice given by a
landlord to his tenant, stating that the former de-
sires to repossess himself of the demised premises,
and that the latter is required to quit and remove
from the same at a time designated, either at the
expiration of the term, if the tenant is in under a
lease, or immediately, if the tenancy is at will or by
sufferance. The term is also sometimes applied
to a written notice given by the tenant to the land-
lord, to the effect that he intends to quit the de-
mised premises and deliver possession of the same
on a day named. Garner v. Hannah, 6 Duer, N.Y.,
270; Oakes v. Munroe, 8 Cush., Mass., 287.
NOTIFY. To give notice to; to inform by words
or writing, in person or by message, or by any
signs which are understood; to make known; to
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NOTIFY
"notify" one of a fact is to make it known to him;
to inform him by notice. Fast v. Scruggs, 164
Oki. 196, 23 P.2d 383.
In legal proceedings, and In respect to public matters,
this word is generally, if not universally, used as import-
ing a notice given by some person, whose duty it was to
give it, in some manner prescribed, and to some person
entitled to receive it, or be notified. Appeal of Potwine, 31
Conn. 384; Home Benefit Ass'n of Angelina County v. Jor-
dan, Tex.Civ.App., 191 S.W. 725, 728.
NOTING. The act of a notary in minuting on a
bill of exchange, after it has been presented for
acceptance or payment, the initials- of his name,
the date of the day, month, and year when such
presentment was made, and the reason, if any has
been assigned, for non-acceptance or non-payment,
together with his charge. 4 Term 175.
NOTIO. Lat. In the civil law, the power of hear-
ing and trying a matter of fact; the power or au-
thority of a judex; the power of hearing causes
and of pronouncing sentence, without any degree
of jurisdiction. Calvin.
NOTITIA. Lat. Knowledge; information; intel-
ligence; notice.
NOTITIA DICITUR A NOSCENDO; ET NOTI-
TIA NON DEBET CLAUDICARE. Notice is
named from a knowledge being had; and notice
ought not to halt, [i. e., be imperfect.] 6 Coke,
29.
NOTORIAL. The Scotch form of "notarial," (q.
v.). Bell.
NOTORIETY. The state of being notorious or
universally well known.
Proof by Notoriety. In Scotch law, dispensing
with positive testimony as to matters of common
knowledge or general notoriety, the same as the
"judicial notice" of English and American law.
See Judicial Notice.
NOTORIOUS. Generally known and talked of,
well or widely known, forming a part of common
knowledge, or universally recognized. Mathis v.
State, 60 Okl.Cr. 58, 61 P.2d 261, 267. Open;
generally or commonly known and spoken of.
McNeill v. McNeill, 166 Iowa, 680, 148 N.W. 643,
651; Record v. Ellis, 97 Kan. 754, 156 P. 712, 713,
L.R.A.1916E, 654; Spicer v. Spicer, 249 Mo. 582, 155
S.W. 832, 835, Ann.Cas.1914D, 238.
In the law of evidence, matters deemed notorious do not
require to be proved. There does not seem to be any rec-
ognized rule as to what matters are deemed notorious.
Cases have occurred in which the state of society or public
feeling has been treated as notorious; e. g., during times
of sedition. Best, Ev. 354; Sweet.
NOTORIOUS INSOLVENCY. A condition of in-
solvency which is generally known throughout
the community or known to the general class of
persons with whom the insolvent has business re-
lations.
NOTORIOUS POSSESSION. Possession that is
so conspicuous that it is generally known and
talked of by the public or the people in the neigh-
borhood. Terral v. Brooks, 194 Ark. 311, 108 S.W.
2d 489, 493. Possession or character of holding
in its nature having such elements of notoriety
that the owner may be presumed to have notice
of it and of its extent. Watrous v. Morrison, 33
Fla. 261, 14 So. 805, 39 Am.St.Rep. 139.
NOTOUR. In Scotch law, open; notorious. A.
notour bankrupt is a debtor who, being under dili-
gence by horning and caption of his creditor, re-
tires to sanctuary or absconds or defends by force,
ind is afterwards found insolvent by the court of
session. Bell.
NOVA CONSTITUTIO FUTURIS FORMAM IM-
PONERE DEBET NON PRIETERITIS. A new
state of the law ought to affect the future, not the
past. 2 Inst. 292; Broom, Max. 34, 37.
NOVA CUSTUMA. The name of an imposition or
duty. See Antigua Custuma.
NOVA STATUTA. New statutes. An appellation
sometimes given to the statutes which have been
passed since the beginning of the reign of Edward
III. 1 Steph.Comm. 68.
NOVIE NARRATIONES. New counts. The col-
lection called "Novas Narrationes" contains plead-
ings in actions during the reign of Edward III.
It consists principally of declarations, as the title
imports; but there are sometimes pleas and sub-
sequent pleadings. The Articuli ad Novas Narra-
tiones is usually subjoined to this little book, and
is a small treatise on the method of pleading. It
first treats of actions and courts, and then goes
through each particular writ, and the declaration
upon it, accompanied with directions, and illus-
trated by precedents. 3 Reeve, Eng. Law, 152;
Wharton.
NOVALE. Land newly plowed and converted in-
to tillage, and which has not been tilled before
within the memory of man; also fallow land.
NOVALIS. In the civil law, land that rested a
year after the first plowing. Dig. 50, 16, 30, 2.
NOVATIO NON PRIESUMITUR. Novation is not
presumed. Halk. Lat. Max. 109.
NOVATION. Substitution of new contract be-
tween same or different parties. Alexander v.
Manza, 22 N.J.Misc. 88, 36 A.2d 142, 148. The sub-
stitution of a new debt or obligation for an exist-
ing one. Hard v. Burton, 62 Vt. 314, 20 A. 269;
McCartney v. Kipp, 171 Pa. 644, 33 A. 233. The
substitution by mutual agreement of one debtor
for another or of one creditor for another, where-
by the old debt is extinguished. Pierce Fordyce
Oil Ass'n v. Woods, Tex.Civ.App., 180 S.W. 1181,
1183; Peters v. Poro's Estate, 96 Vt. 95, 117 A. 244,
249, 25 A.L.R. 615.
The requisites of a "novation" are a previous valid obli-
gation, an agreement of all the parties to a new contract,
the extinguishment of the old obligation, and the validity
of the new one. Alkire v. Acuff, 134 Okl. 43, 272 P. 405,
406; Tulsa Ice Co. v. Liley, 157 Okl. 86, 10 P.2d 1090, 1091;
Cox v. Baltimore & 0. S. W. R. Co., 180 Ind. 495, 103 N.E.
337, 342, 50 L.R.A.,N.S., 453.
The term was originally a technical term of the
civil law, but is now in very general use in Eng-
lish and American jurisprudence.
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In the civil law, there are three kinds of nova-
tion: Where the debtor and creditor remain the
same, but a new debt takes the place of the old
one; where the debt remains the same, but a new
debtor is substituted; where the debt and debtor
remain, but a new creditor is substituted. Wheel-
er v. Wardell, 173 Va. 168, 3 S.E.2d 377, 380.
NOVEL ASSIGNMENT. See New Assignment.
NOVEL DISSEISIN. See Assise of Novel Dissei-
sin.
NOVELLIE (or NOVELLZE CONSTITUTIONES.)
New constitutions; generally translated in Eng-
lish, "Novels." The Latin name of those constitu-
tions which were issued by Justinian after the
publication of his Code; most of them being
originally written in Greek. After his death, a
collection of 168 Novels was made, 154 of which
had been issued by Justinian, and the rest by his
successors. These were afterwards included in
the Corpus Juris Civilis, (q. v.,) and now consti-
tute one of its four principal divisions. Mackeld.
Rom. Law, § 80; 1 Kent, Comm. 541.
NOVELLIE LEONIS. The ordinances of the Em-
peror Leo, which were made from the year 887
till the year 893, are so called. These Novels
changed many rules of the Justinian law. This
collection contains 113 Novels, written originally
in Greek, and afterwards, in 1560, translated into
Latin by Agilteus. Mackeld. Rom. Law, § 84.
NOVELS. The title given in English to the New
Constitutions (Novellce Constitutiones) of Justin-
ian and his successors, now forming a part of the
Corpus Juris Civilis. See NovellEe.
NOVELTY. In order that there may be "novelty"
so as to sustain a patent, the thing must not have
been known to any one before, mere novelty of
form being insufficient. Seaver v. Wm. Filene's
Sons Co., D.C.Mass., 37 F.Supp. 762, 765. An ob-
jection to a patent or claim for a patent on the
ground that the invention is not new or original
is called an objection "for want of novelty."
NOVERCA. Lat. In the civil law, a stepmother.
NOVERINT UNIVERSI PER PRZESENTES.
Know all men by these presents. Formal words
used at the commencement of deeds of release
in the Latin forms.
NOVI OPERIS NUNCIATIO. Lat. Denunciation
of, or protest against, a new work.
This was a species of remedy in the civil law, available
to a person who thought his rights or his property were
threatened with injury by the act of his neighbor in erect-
ing or demolishing any structure, which was called a "new
work." In such case, he might go upon the ground, while
the work was in progress, and publicly protest against or
forbid its completion, in the presence of the workmen or of
the owner or his representative.
NOVIGILD. In Saxon law, a pecuniary satisfac-
tion for an injury, amounting to nine times the
value of the thing for which it was paid. Spel-
man.
NOVISSIMA RECOPILACION. (Latest Compila-
tion.) The title of a collection of Spanish law
compiled by order of Don Carlos IV. in 1805. 1
White, Recop. 355.
NOVITAS. Lat. Novelty; newness; a new thing.
NOVITAS NON TAM UTILITATE PRODEST
QUAM NOVITATE PERTURBAT. A novelty does
not benefit so much by its utility as it disturbs by
its novelty. Jenk. Cent. p. 167, case 23.
NOVITER PERVENTA, or NOVITER AD NO-
TITIAM PERVENTA. In ecclesiastical procedure,
facts "newly come" to the knowledge of a party
to a cause. Leave to plead facts noviter perventa
is generally given, in a proper case, even after the
pleadings are closed. Phillim. Ecc. Law, 1257;
Rog. Ecc. Law, 723.
NOVODAMUS. In old Scotch law, we give anew.
The name given to a charter, or clause in a char-
ter, granting a renewal of a right. Bell.
NOVUM JUDICIUM NON DAT NOVUM JUS, SED
DECLARAT ANTIQUUM; QUIA JUDICIUM EST
JURIS DICTUM ET PER JUDICIUM JUS EST
NOVITER REVELATUM QUOD DIU FUIT VE-
LATUM. A new adjudication does not make a
new law, but declares the old; because adjudica-
tion is the utterance of the law, and by adjudica-
tion the law is newly revealed which was for a
long time hidden. 10 Coke, 42.
NOVUM OPUS. Lat. In the civil law, a new
work. See Novi Operis Nunciatio.
NOVUS HOMO. Lat. A new man. This term
is applied to a man who has been pardoned of a
crime, and so made, as it were, a "new man."
NOW. At this time, or at the present moment;
or at a time contemporaneous with something
done. Pike v. Kennedy, 15 Or. 426, 15 P. 637. At
the present time. Nutt v. U. S., 26 Ct.C1. 15. Shu-
bert v. Rosenberger, C.C.A.Mo., 204 F. 934, 935;
Walker v. Dwelle, 187 Iowa, 1384, 175 N.W. 957,
960.
"Now" as used in a statute ordinarily refers
to the date of its taking effect, but the word is
sometimes used, not with reference to the moment
of speaking but to a time contemporaneous with
something done, and may mean at the time spoken
of or referred to as well as at the time of speaking.
State v. City of St. Lawrence, 101 Kan. 225, 165
P. 826.
Word "now" used in will refers to time of testa-
tor's death, Tate v. Tate, 160 Ga. 449, 128 S.E. 393,
395; but, in light of context, may apply to date of
will, Merrill v. Winchester, 120 Me. 203, 113 A.
261, 264.
NOXA. Lat. In the civil law, any damage or
injury done to persons or property by an unlaw-
ful act committed by a man's slave or animal.
An action for damages lay against the master or
owner, who, however, might escape further re-
sponsibility by delivering up the offending agent
to the party injured. "Noxa" was also used as the
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NOXA SEQUITUR
designation of the offense committed, and of its
punishment, and sometimes of the slave or animal
doing the damage.
NOXA SEQUITUR CAPUT. The injury [1. e., lia-
bility to make good an injury caused by a slave]
follows the head or person, [i. e., attaches to his
master.] Heinecc. Elem. 1. 4, t. 8, § 1231.
NOXIE DEDITIO. The surrender of a slave who
has committed a misdeed. The master may elect
whether he will pay the damages assessed or sur-
render the slave. Hunter, Rom. Law, 166.
NOXAL ACTION. An action for damage done
by slaves or animals. Sandars, Just. Inst. (5th
Ed.) 457.
NOXALIS ACTIO. Lat. In the civil law, an ac-
tion which lay against the master of a slave, for
some offense (as theft or robbery) committed or
damage or injury done by the slave, which was
called "noxa." Usually translated "noxal action."
NOXIA. Lat. In the civil law, an offense com-
mitted or damage done by a slave. Inst. 4, 8, 1.
NOXIOUS. Hurtful; offensive; offensive to ,the
smell. Rex v. White, 1 Burrows, 337. The word
"noxious" includes the complex idea both of in-
salubrity and offensiveness. Id. That which caus-
es or tends to cause injury, especially to health or
morals. Moubray v. G. & M. Improvement Co., 178
App.Div. 737, 165 N.Y.S. 842, 843.
NUBILIS. Lat. In the civil law, marriageable;
one who is of a proper age to be married.
NUCES COLLIGERE. Lat. To collect nuts. This
was formerly one of the works or services imposed
by lords upon their inferior tenants. Paroch.
Antiq. 495.
NUDA PACTIO OBLIGATIONEM NON PARIT.
A naked agreement [i. e., without consideration]
does not beget an obligation. Dig. 2, 14, 7, 4;
Broom, Max. 746.
NUDA PATIENTIA. Lat. Mere sufferance.
NUDA POSSESSIO. Lat. Bare or mere posses-
sion.
NUDA RATIO ET NUDA PACTIO NON LIGANT
ALIQUEM DEBITOREM. Naked reason and nak-
ed promise do not bind any debtor. Fleta, 1. 2, c.
60, § 25.
NUDE. Naked. This word is applied metaphori-
cally to a variety of subjects to indicate that they
are lacking in some essential legal requisite.
NUDE CONTRACT. One made without any con-
sideration; upon which no action will lie, in con-
formity with the maxim "ex nudo pacto non oritur
actio." 2 Bl.Comm. 445.
NUDE MATTER. A bare allegation of a thing
done, unsupported by evidence.
NUDE PACT. One without consideration; an ex-
ecutory contract without a consideration; a naked
promise. Oliver v. Home Service Ice Co., La.App.,
161 So. 766, 770.
NUDUM PACTUM. A voluntary promise, without
any other consideration than mere good will, or
natural affection. Grimes v. Baker, 133 Neb. 517,
275 N.W. 860, 863.
A naked pact; a bare agreement; a promise
or undertaking made without any consideration
for it. Justice v. Lang, 42 N.Y. 493, 1 Am.Rep. 576;
Wardell v. Williams, 62 Mich. 50, 28 N.W. 800, 4
Am.St.Rep. 814.
In Roman law. Informal agreements not com-
ing within any of the privileged classes. They
could not be sued on. The term was sometimes
used with a special and rather different meaning
to express the rule that a contract without de-
livery will not pass property. Pollock, Contracts
743. Salmond, Jurisprudence 640.
NUDUM PACTUM EST UBI NULLA SUBEST
CAUSA PR)ETER CONVENTIONEM; SED UBI
SUBEST CAUSA, FIT OBLIGATIO, ET PARIT
ACTIONEM. A naked contract is where there
is no consideration except the agreement; but,
where there is a consideration, it becomes an ob-
ligation and gives a right of action. Plowd. 309;
Broom, Max. 745, 750.
NUDUM PACTUM EX QUO NON ORITUR AC-
TIO. Nudum pactum is that upon which no action
arises. Cod. 2, 3, 10; Id. 5, 14, 1; Broom, Max.
676.
NUEVA RECOPILACION. New Compilation.
The title of a code of Spanish law, promulgated
in the year 1567. Schm. Civil Law, Introd. 79-S1.
NUGATORY. Futile; ineffectual; invalid; des-
titute of constraining force or vitality. A legisla-
tive act may be "nugatory" because unconstitu-
tional. Avery & Co. v. Sorrell, 157 Ga. 476, 121 S.
E. 828, 829.
NUISANCE. That which annoys and disturbs one
in possession of his property, rendering its or-
dinary use or occupation physically uncomfortable
to him. Yaffe v. City of Ft. Smith, 178 Ark. 406,
10 S.W.2d 886, 890, 61 A.L.R. 1138. Everything
that endangers life or health, gives offense to
senses, violates the laws of decency, or obstructs
reasonable and comfortable use of property. Hall
v. Putney, 291 Ill.App. 508, 10 N.E.2d 204, 207. An-
noyance; anything which essentially interferes
with enjoyment of life or property. Holton v.
Northwestern Oil Co., 201 N.C. 744, 161 S.E. 391,
393. That class of wrongs that arise from the
unreasonable, unwarrantable, or unlawful use by
a person of his own property, either real or per-
sonal, or from his own improper, indecent, or un-
lawful personal conduct, working an obstruction
of or injury to the right of another or of the pub-
lic, and producing such material annoyance, in-
convenience, discomfort, or hurt, that the law will
presume resulting damage. City of Phoenix v.
Johnson, 51 Ariz. 115, 75 P.2d 30; Wood, Nuis. §
1; District of Columbia v. Totten, 55 App.D.C.
312, 5 F.2d 374, 380, 40 A.L.R. 1461. Anything that
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unlawfully worketh hurt, inconvenience, or dam-
age. 3 Bl.Comm. 216; City of Birmingham v.
Hood-McPherson Realty Co., 233 Ala. 352, 172 So.
114, 120, 108 A.L.R. 1140. Anything which is in-
jurious to health, or is indecent or offensive to
the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable
enjoyment of life or property, or which unlaw-
fully obstructs the free passage or use, in the cus-
tomary manner, of any navigable lake or river,
bay, stream, canal, or basin, or any public park,
square, street, or highway, is a nuisance. Civ.
Code Cal. § 3479; Veazie v. Dwinel, 50 Me. 479;
Bohan v. Port Jervis Gaslight Co., 122 N.Y. 18, 25
N.E. 246, 9 L.R.A. 711; Baltimore & P. R. Co. v.
Fifth Baptist Church, 137 U.S. 568, 11 S.Ct. 185,
34 L.Ed. 784; Ex parte Foote, 70 Ark. 12, 65 S.W.
706, 91 Am.St.Rep. 63.
In determining what constitutes a "nuisance," the ques-
tion is whether the nuisance will or does produce such a
condition of things as in the judgment of reasonable men
is naturally productive of actual physical discomfort to
persons of ordinary sensibility and ordinary tastes and
habits. Meeks v. Wood, 66 Ind.App. 594, 118 N.E. 591, 592.
Nuisances are commonly classed as public and private,
and mixed. A public nuisance is one which affects an
indefinite number of persons, or all the residents of a par-
ticular locality, or all people coming within the extent of
its range or operation, although the extent of the annoy-
ance or damage inflicted upon individuals may be unequal.
Burnham v. Hotchkiss, 14 Conn. 317; Chesbrough v.
Com'rs, 37 Ohio St. 508; Lansing v. Smith, 4 Wend., N.Y.,
30, 21 Am.Dec. 89. A private nuisance was originally
defined as anything done to the hurt or annoyance of the
lands, tenements, or hereditaments of another. 3 Bl.
Comm. 216; Whittemore v. Baxter Laundry Co. 181 Mich.
564, 148 N.W. 437, 52 L.R.A.,N.S., 930, Ann.Cas.1916C, 818.
As distinguished from public nuisance, it includes any
wrongful act which destroys or deteriorates the property
of an individual or of a few persons or interferes with
their lawful use or enjoyment thereof, or any act which
unlawfully hinders them in the enjoyment of a common or
public right and causes them a special injury different
from that sustained by the general public. Therefore,
although the ground of distinction between public and pri-
vate nuisances is still the injury to the community at large
or, on the other hand, to a single individual, it is evident
that the same thing or act may constitute a public nui-
sance and at the same time a private nuisance. Heeg v.
Licht, 80 N.Y. 582, 36 Am.Rep. 654; Baltzeger v. Carolina
Midland R. Co., 54 S.C. 242, 32 S.E. 358, 71 Am.St.Rep.
789; Willcox v. Hines, 100 Tenn. 538, 46 S.W. 297, 41
L.R.A. 278; Harris v. Poulton, 99 W.Va. 20, 127 S.E. 647,
650, 651, 40 A.L.R. 334. A mixed nuisance is of the kind
last described; that is, it is one which is both public and
private in its effects,-public because it injures many per-
sons or all the community, and private in that it also pro-
duces special injuries to private rights. Kelley v. New
York, 27 N.Y.S. 164, 6 Misc. 516.
Abatement of a nuisance. The removal, pros-
tration, or destruction of that which causes a nui-
sance, whether by breaking or pulling it down, or
otherwise removing, disintegrating, or effacing
it. Ruff v. Phillips, 50 Ga. 130.
The remedy which the law allows a party injured by a
nuisance of destroying or removing it by his own act, so as
he commits no riot in doing it, nor occasions (in the case
of a private nuisance) any damage beyond what the re-
moval of the inconvenience necessarily requires. 3 Bl.
Comm. 5, 168; 3 Steph.Comm. 361; 2 Salk. 458.
Actionable nuisance. See Actionable.
Assize of nuisance. In old practice, this was
a judicial writ directed to the sheriff of the county
in which a nuisance existed, in which it was stated
that the party injured complained of some par-
ticular fact done ad nocumentum liberi tenementi
sui, (to the nuisance of his freehold,) and com-
manding the sheriff to summon an assize (that
is, a jury) to view the premises, and have them
at the next commission of assizes, that justice
might be done, etc. 3 Bl.Comm. 221.
Common nuisance. One which affects the public
in general, and not merely some particular per-
son; a public nuisance. 1 Hawk.P.C. 197; State
v. Rodgers, 91 N.J.L. 212, 102 A. 433, 434.
Continuing nuisance. An uninterrupted or per-
iodically recurring nuisance; not necessarily a
constant or unceasing injury, but a nuisance which
occurs so often and is so necessarily an incident
of the use of property complained of that it can
fairly be said to be continuous. Farley v. Gas-
light Co., 105 Ga. 323, 31 S.E. 193; Kafka v. Bozio,
191 Cal. 746, 218 P. 753, 755, 29 A.L.R. 833.
Permanent nuisance. A nuisance of such a
character that its continuance is necessarily an
injury which will continue without change. Nor-
folk & W. Ry. Co. v. Allen, 118 Va. 428, 87 S.E. 558,
560. One that cannot be readily abated at small
expense. Cumberland Torpedo Co. v. Gaines, 201
Ky. 88, 255 S.W. 1046, 1048
NUISANCE AT LAW. Nuisance per se (q. v.).
NUISANCE IN FACT. Acts, occupations or struc-
tures which are not nuisances per se but may be-
come nuisances by reason of the circumstances
or the location and surroundings. Asphalt Pro-
ducts Co. v. Marable, 65 Ga.App. 877, 16 S.E.2d 771,
772.
NUISANCE PER ACCIDENS. Nuisances in fact
(q. v.).
NUISANCE PER SE. An act, occupation, or struc-
ture which is a nuisance at all times and under all
circumstances, regardless of location or surround-
ings. Kays v. City of Versailles, 224 Mo.App. 178,
22 S.W.2d 182, 183. As, things prejudicial to pub-
lic morals or dangerous to life or injurious to pub-
lic rights; distinguished from things declared to
be nuisances by statute, and also from things
which constitute nuisances only when considered
with reference to their particular location or other
individual circumstances. Hundley v. Harrison,
123 Ala. 292, 26 So. 294; Whitmore v. Paper Co.,
91 Me. 297, 39 A. 1032, 40 L.R.A. 377; Simpson v.
Du Pont Powder Co., 143 Ga. 465, 85 S P.E. 344, 345,
L.R.A.1915E, 430.
NUL. No; none. A law French negative particle
commencing many phrases.
NUL AGARD. No award. The name of a plea in
an action on an arbitration bond, by which the de-
fendant traverses the making of any legal award.
NUL CHARTER, NUL VENTE, NE NUL DONE
VAULT PERPETUALMENT, SI LE DONOR
N'EST SEISE AL TEMPS DE CONTRACTS DE
DEUX DROITS, SC. DEL DROIT DE POSSES-
SION ET DEL DROIT DE PROPERTIE. Co. Litt.
266. No grant, no sale, no gift, is valid forever,
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unless the donor, at the time of the contract, is
seised of two rights, namely, the right of posses-
sion, and the right of property.
NUL DISSEISIN. In pleading, no disseisin. A
plea of the general issue in a real action, by which
the defendant denies that there was any desseisin.
NUL NE DOIT S'ENRICHIR AUX DEPENS DES
AUTRES. No one ought to enrich himself at the
expense of others.
NUL PRENDRA ADVANTAGE DE SON TORT
DEMESNE. No one shall take advantage of his
own wrong. 2 Inst. 713; Broom, Max. 290.
NUL SANS DAMAGE AVERA ERROR OU AT-
TAINT. Jenk. Cent. 323. No one shall have er-
ror or attaint unless he has sustained damage.
NUL TIEL CORPORATION. No such corpora-
tion [exists]. The form of a plea denying the ex-
istence of an alleged corporation. Rialto Co. v.
Miner, 183 Mo.App. 119, 166 S.W. 629, 632.
NUL TIEL RECORD. No such record. A plea
denying the existence of any such record as that
alleged by the plaintiff. It is the general plea in
an action of debt on a judgment. Hoffheimer v.
Stiefel, 17 Misc. 236, 39 N.Y.S. 714; Watters v.
Freeman Bros., 16 Ga.App. 595, 85 S.E. 931.
Judgment of nul tiel record occurs when some
pleading denies the existence of a record and issue
is joined thereon; the record being produced is
compared by the court with the statement in the
pleading which alleges it; and if they correspond,
the party asserting its existence obtains judgment;
if they do not correspond, the other party obtains
judgment of nul tiel record (no such record).
NUL TORT. In pleading, a plea of the general is-
sue to a real action, by which the defendant de-
nies that he committed any wrong.
NUL WASTE. No waste. The name of a plea in
an action of waste, denying the committing of
waste, and forming the general issue.
NULL. Naught; of no validity or effect. Usually
coupled with the word "void;" as "null and void."
Forrester v. Boston, etc., Min. Co., 29 Mont. 397,
74 P. 1088; Hume v. Eagon, 73 Mo.App. 276. The
words "null and void," when used in a contract or
statute are often construed as meaning "voidable."
Burns Mortg. Co. v. Schwartz, C.C.A.N.J., 72 F.2d
991, 992; Metropolitan Life Ins. Co. v. Hall, 191 Ga.
294, 12 S.E.2d 53, 61.
NULLA BONA. Lat. No goods. The name of
the return made by the sheriff to a writ of execu-
tion, when he has not found any goods of the de-
fendant within his jurisdiction on which he could
levy. Woodward v. Harbin, 1 Ala. 108; Reed v.
Lowe, 163 Mo. 519, 63 S.W. 687, 85 Am.St.Rep. 578.
NULLA CURIA QUM RECORDUM NON HABET
POTEST IMPONERE FINEM NEQUE ALIQUEM
MANDARE CARCERI; QUIA ISTA SPECTANT
TANTUMMODO AD CURIAS DE RECORDO. 8
Coke, 60. No court which has not a record can
impose a fine or commit any person to prison;
because those powers belong only to courts of rec-
ord.
NULLA EMPTIO SINE PRETIO ESSE POTEST.
There can be no sale without a price. Brown v.
Bellows, 4 Pick., Mass., 189.
NULLA IMPOSSIBILIA AUT INHONESTA
SUNT PRIESUMENDA; VERA AUTEM ET
HONESTA ET POSSIBILIA. No things that are
impossible or dishonorable are to be presumed;
but things that are true .and honorable and possi-
ble. Co.Litt. 78b.
NULLA PACTIONE EFFICI POTEST UT DOLUS
PRIESTETUR. By no agreement can it be ef-
fected that a fraud shall be practiced. Fraud will
not be upheld, though it may seem to be authoriz-
ed by express agreement. 5 Maule & S. 466;
Broom, Max. 696.
NULLA VIRTUS, NULLA SCIENTIA, LOCUM
SUUM ET DIGNITATEM CONSERVARE PO-
TEST SINE MODESTIA, Co.Litt. 394. Without
modesty, no virtue, no knowledge, can preserve
its place and dignity.
NULLE REGLE SANS FAUTE. There is no rule
without a fault.
NULLE TERRE SANS SEIGNEUR. No land
without a lord. A maxim of feudal law. Guyot,
Inst. Feod. c. 28.
NULLI ENIM RES SUA SERVIT JURE SERVI-
TUTIS. No one can have a servitude over his own
property. Dig. 8, 2, 26; 2 Bouv.Inst. no. 1600;
Grant v. Chase, 17 Mass. 443, 9 Am.Dec. 161.
NULLI VENDEMUS, NULLI NEGABIMUS, AUT
DIFFEREMUS RECTUM VEL JUSTITIAN. We
neither sell nor deny, nor delay, to any person,
equity or justice. State ex rel. Macri v. City of
Bremerton, 8 Wash.2d 93, 111 P.2d 612, 619.
NULLITY. Nothing; no proceeding; an act or
proceeding in a cause which the opposite party
may treat as though it had not taken place, or
which has absolutely no legal force or effect. Sal-
ter v. Hilgen, 40 Wis. 363; Jenness v. Lapeer Coun-
ty Circuit Judge, 42 Mich. 469, 4 N.W. 220.
Absolute Nullity. In Spanish law, nullity is either abso-
lute or relative. The former is that which arises from the
law, whether civil or criminal, the principal motive for
which is the public interest, while the latter is that which
affects one certain individual. Sunol v. Hepburn, 1 Cal.
281. No such distinction, however, is recognized in Amer-
ican law, and the term "absolute nullity" is used more for
emphasis than as indicating a degree of invalidity. As to
the ratification or subsequent validation of "absolute nul-
lities," see Means v. Robinson, 7 Tex. 502, 516.
NULLITY OF MARRIAGE. The entire invalidity
of a supposed, pretended, or attempted marriage,
by reason of relationship or incapacity of the par-
ties or other diriment impediments. An action
seeking a decree declaring such an assumed mar-
riage to be null and void is called a suit of "null-
ity of marriage." It differs from an action for di-
vorce, because the latter supposes the existence of
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a valid and lawful marriage. 2 Bish. Mar. & Div.
§§ 289-294.
NULLIUS FILIUS. Lat. The son of nobody; a
bastard. A bastard is considered nullius filius as
far as regards his right to inherit. But the rule
of nullius filius does not apply in other respects,
and has been changed by statute in most states
so as to make him the child of his mother, in re-
spect of inheritance. State v. Chavez, 42 N.M.
569, 82 P.2d 900, 902.
NULLIUS HOMINIS AUCTORITAS APUD NOS
VALERE DEBET, UT MELIORA NON SEQUERE-
MUR SI QUIS ATTULERIT. The authority of
no man ought to prevail with us, so far as to pre-
vent our following better [opinions] if any one
should present them. Co.Litt. 383b.
NULLIUS IN BONIS. Lat. Among the property
of no person.
NULLIUS JURIS. Lat. In old English law, of no
legal force. Fleta, lib. 2, c. 60, § 24.
NULLUM ARBITRIUM. L. Lat. No award. The
name of a plea in an action on an arbitration bond,
for not fulfilling the award, by which the defend-
ant traverses the allegation that there was an
award made.
NULLUM CRIMEN MAJUS EST INOBEDIEN-
TIA. No crime is greater than disobedience.
Jenk.Cent. p. 77, case 48. Applied to the refusal of
an officer to return a writ.
NULLUM EXEMPLUM EST IDEM OMNIBUS.
No example is the same for all purposes. Co.Litt.
212a. No one precedent is adapted to all cases.
A maxim in conveyancing.
NULLUM FECERUNT ARBITRIUM. L. Lat.
The name of a plea to an action of debt upon an
obligation for the performance of an award, by
which the defendant denies that he submitted to
arbitration, etc. Bac.Abr. "Arbitr." etc., G.
NULLUM INIQUUM EST PR2ESUMENDUM IN
JURE. 7 Coke, 71. No iniquity is to be presumed
in law.
NULLUM MATRIMONIUM, IBI NULLA DOS.
No marriage, no dower. Wait v. Wait, 4 Barb.,
N.Y., 192, 194.
NULLUM SIMILE EST IDEM NISI QUATUOR
PEDIBUS CURRIT. Co. Litt. 3. No like is identi-
cal, unless it run on all fours.
NULLUM SIMILE QUATOUR PEDIBUS CUR-
RIT. No simile runs upon four feet, (or all fours,
as it is otherwise expressed.) No simile holds in
everything. Co. Litt. 3a; Ex parte Foster, 2 Story,
143, Fed.Cas.No.4960.
NULLUM TEMPUS ACT. A name given to the
statute 3 Geo. III. c. 16, because that act, in con-
travention of the maxim "Nullum tempus occurrit
regi," (no lapse of time bars the king,) limited
the crown's right to sue, etc., to the period of sixty
years.
Black's Law Dictionary Revised 4th Ed.-77
NULLUM TEMPUS AUT LOCUS OCCURRIT
REGI. No time or place affects the king. 2 Inst.
273; Jenk. Cent. 83; Broom, Max. 65.
NULLUM TEMPUS OCCURRIT REGI. Time does
not run against the king. The rule refers to the
king in his official capacity as representing the
sovereignty of the nation and not to the king as an
individual. City of Bisbee v. Cochise County, 52
Ariz. 1, 78 P.2d 982, 984.
NULLUM TEMPUS OCCURRIT REIPUBLICAE.
No time runs [time does not run] against the
commonwealth or state. Covington County v.
O'Neal, 239 Ala. 322, 195 So. 234, 238.
NULLUS ALTUS QUAM REX POSSIT EPISCOPO
DEMANDARE INQUISITIONEM FACIENDAM.
Co. Litt. 134. No other than the king can com-
mand the bishop to make an inquisition.
NULLUS COMMODUM CAPERE POTEST DE
INJURIA SUA PROPRIA. No one can obtain an
advantage by his own wrong. Co. Litt. 148;
Broom, Max. 279; De Zotell v. Mutual Life Ins.
Co. of New York, 60 S.D. 532, 245 N.W. 58, 59.
NULLUS DEBET AGERE DE DOLO, UBI ALIA
ACTIO SUBEST. Where another form of action
is given, no one ought to sue in the action de dolo.
7 Coke, 92.
NULLUS DICITUR ACCESSORIUS POST 14 EL-
ONIAM, SED ILLE QUI NOVIT PRINCIPALEM
FELONIAM FECISSE, ET ILLUM RECEPTAVIT
ET COMFORTAVIT. 3 Inst. 138. No one is called
an "accessary" after the fact but he who knew
the principal to have committed a felony, and re-
ceived and comforted him.
NULLUS DICITUR FELO PRINCIPALIS NISI
ACTOR, AUT QUI PRJESENS EST, ABETTANS
AUT AUXILIANS AD FELONIAM FACIENDAM.
No one is called a "principal felon" except the
party actually committing the felony, or the party
present aiding and abetting in its commission.
NULLUS IDONEUS TESTIS IN RE SUA INTEL-
LIGITUR. No person is understood to be a com-
petent witness in his own cause. Dig. 22, 5, 10.
NULLUS JUS ALIENUM FORISFACERE PO-
TEST. No man can forfeit another's right. Fleta,
lib. 1, c. 28, § 11.
NULLUS RECEDAT E CURIA CANCELLARIA
SINE REMEDIO. No person should depart from
the court of chancery without a remedy. 4 Hen.
VII. 4; Branch, Princ.
NULLUS SIMILE EST IDEM, NISI QUATUOR
PEDIBUS CURRIT. No like is exactly identical
unless it runs on all fours.
NULLUS VIDETUR DOLO FACERE QUI SUO
JURE UTITUR. No one is considered to act with
guile who uses his own right. Dig. 50, 17, 55;
Broom, Max. 130.
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NUMBERS
NUMBERS GAME. A game of chance in which
player selects any number and makes a bet on
that number and gives amount of bet and number
to the "runner" who enters it on a pad, player
receiving a copy, and whereby winning number
is determined each day by computation based upon
prices paid on parimutuel betting machine at a
designated track for horse racing as published in
a newspaper, the holder of winning number receiv-
ing through the number 600 times the amount of
his bet. State v. Mola, 128 Conn. 407, 23 A.2d 126,
127.
NUMERATA PECUNIA. Lat. In the civil law,
money told or counted; money paid by tale. Inst.
3, 24, 2; Bract. fol. 35.
NUMERICAL LOTTERY. See Genoese Lottery.
NUMMATA. The Price of anything in money, as
denariata is the price of a thing by computation
of pence, and librata of pounds.
NUMMATA TERRIE. An acre of land. Spelman.
NUN. A woman who lives in a convent under
vows of poverty, chastity, and obedience. Scott
Co. v. Roman Catholic Archbishop for Diocese of
Oregon, A. Christie, 83 Or. 97, 163 P. 88, 91.
NUNC PRO TUNC. Lat. Now for then. In re
Peter's Estate, 175 Okl. 90, 51 P.2d 272, 274. A
phrase applied to acts allowed to be done after
the time when they should be done, with a retro-
active effect, i. e., with the same effect as if reg-
ularly done. Perkins v. Hayward, 132 Ind. 95, 31
N.E. 670; Secou v. Leroux, 1 N.M. 388.
"Nunc pro tune" entry is an entry made now of some-
thing actually previously done to have effect of former
date; office being not to supply omitted action, but to sup-
ply omission in record of action really had but omitted
through inadvertence or mistake. Mallory v. Ward Baking
Co., 270 Mich. 94, 258 N.W. 414; People v. Rosenwald; 266
Ill. 548, 107 N.E. 854, 856, Ann.Cas.1915D, 688; Grizzard v.
Fite, 137 Tenn. 103, 191 S.W. 969, 971, L.R.A.1917D, 652.
NUNCIATIO. Lat. In the civil law, a solemn
declaration, usually in prohibition of a thing; a
protest.
NUNCIO. The permanent official representative
of the pope at a foreign court or seat of govern.
ment. Webster. They are called "ordinary" or
"extraordinary," according as they are sent for
general purposes or on a special mission.
NUNCIUS. In international law, a messenger;
a minister; the pope's legate, commonly called a
"nuncio."
NUNCUPARE. Lat. In the civil law, to name;
to pronounce orally or in words without writing.
NUNCUPATE. To declare publicly and solemnly.
NUNCUPATIVE WILL. An oral will declared or
dictated by the testator in his last sickness before
a sufficient number of witnesses, and afterwards
reduced to writing. Ex parte Thompson, 4 Bradf.
Sur., N.Y., 154; Sykes v. Sykes, 2 Stew., Ala., 367,
20 Am.Dec. 40.
A will made by the verbal declaration of the
testator, and usually dependent merely on oral
testimony for proof. Cent. Dict.
NUNDINIE. Lat. In the civil and old English
law, a fair. In nundinis et mercatis, in fairs and
markets. Bract. fol. 56.
NUNDINATION. Traffic at fairs and markets;
any buying and selling.
NUNQUAM CRESCIT EX POST FACTO PRIE-
TERITI DELICTI PESTIMATIO. The character
of a past offense is never aggravated by a subse-
quent act or matter. Dig. 50, 17, 139, 1; Bac. Max.
p. 38, reg. 8; Broom, Max. 41.
• NUNQUAM DECURRITUR AD EXTRAORDI-
NARIUM SED UBI DEFICIT ORDINARIUM. We
are never to resort to what is extraordinary, but
[until] what is ordinary fails. 4 Inst. 84.
NUNQUAM FICTIO SINE LEGE. There is no
fiction . without law.
NUNQUAM INDEBITATUS. Lat. Never indebt-
ed. The name of a plea in an action of indebita-
tus assumpsit, by which the defendant alleges that
he is not indebted to the plaintiff.
NUNQUAM NIMIS DICITUR QUOD NUNQUAM
SATIS DICITUR. What is never sufficiently said
is never said too much. Co. Litt. 375.
NUNQUAM PIVESCRIBITUR IN FALSO. There
is never a prescription in case of falsehood or
forgery. A maxim in Scotch law. Bell.
NUNQUAM RES HUMANIE PROSPERE SUC-
CEDUNT UBI NEGLIGUNTUR DIVINIE. Co.
Litt. 15. Human things never prosper where ' di-
vine things are neglected.
NUNTIUS. In old English practice, a messenger.
One who was sent to make an excuse for a party
summoned, or one who explained as for a friend
the reason of a party's absence. Bract. fol. 345.
An officer of a court; a summoner, apparitor, or
beadle. Cowell.
NUPER OBIIT. Lat. In practice, the name of a
writ (now abolished) which, in the English law,
lay for a sister coheiress dispossessed by her co-
parcener of lands and tenements whereof their
father, brother, or any common ancestor died
seised of an estate in fee-simple. Fitzh. Nat. Brev.
197.
NUPTIIE SECUNDZE, Lat. A second marriage.
In the canon law, this term included any marriage
subsequent to the first.
NUPTIAL. Pertaining to marriage; constituting
marriage; used or done in marriage.
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O. C.
00. C. An abbreviation, in the civil law, for "ope
consilio" (q. v.). In American law, these letters
are used as an abbreviation for "Orphans' Court."
0. E. 0. Office of Economic Opportunity.
0. K. A conventional symbol, of obscure origin
much used in commercial practice and occasional.
ly in indorsements on legal documents, signifying
"correct," "approved," "accepted," "satisfactory,"
or "assented to." Getchell & Martin Lumber Co.
v. Peterson, 124 Iowa, 599, 100 N.W. 550; Morgan-
ton Mfg. Co. v. Ohio River, etc., Ry. Co., 121 N.C.
514, 28 S.E. 474, 61 Am.St.Rep. 679.
0. N. B. An abbreviation for "Old Natura Brevi-
um." See Natura Brevium.
0. NI. It was the course of the English exchequer,
as soon as the sheriff entered into and made up his
account for issues, amerciaments, etc., to mark
upon each head "0. Ni.," which denoted oneratur,
nisi habeat sufficientem exonerationem, and pres-
ently he became the king's debtor, and a debet
was set upon his head; whereupon the parties
paravaile became debtors to the sheriff, and were
discharged against the king, etc. 4 Inst. 116;
Wharton.
0. S. An abbreviation for "Old Style," or "Old
Series."
OATH. Any form of attestation by which a per-
son signifies that he is bound in conscience to per-
form an act faithfully and truthfully. Vaughn v.
State, 146 Tex.Cr.R. 586, 177 S.W.2d 59, 60. An
affirmation of truth of a statement, which renders
one willfully asserting untrue statements punish-
able for perjury. U. S. v. Klink, D.C.Wyo., 3 F.
Supp. 208, 210. An outward pledge by the person
taking it that his attestation or promise is made
under an immediate sense of responsibility to
God. Morrow v. State, 140 Neb. 592, 300 N.W.
843, 845. A solemn appeal to the Supreme Being
in attestation of the truth of some statement.
State v. Jones, 28 Idaho 428, 154 P. 378, 381; Ty-
ler, Oaths 15. An external pledge or assevera-
tion, made in verification of statements made, or
to be made, coupled with an appeal to a sacred or
venerated object, in evidence of the serious and
reverent state of mind of the party, or with an in-
vocation to a supreme being to witness the words
of the party, and to visit him with punishment if
they be false. June v. School Dist. No. 11, South-
field Tp., 283 Mich. 533, 278 N.W. 676, 677, 116 A.L.
R. 581. In its broadest sense, the term is used to
include all forms of attestation by which a party
signifies that he is bound in conscience to perform
the act faithfully and truly. In a more restricted
sense, it excludes all those forms of attestation or
promise which are not accompanied by an im-
precation.
The term has been variously defined: as, "a solemn
invocation of the vengeance of the Deity upon the witness
if he do not declare the whole truth, so far as he knows
it," 1 Stark.Ev. 22; or, "a religious asseveration by which
a person renounces the mercy and Imprecates the venge-
ance of Heaven if he do not speak the truth," 1 Leach 430:
or, as "a religious act by which the party invokes God not
only to witness the truth and sincerity of his promise, but
also to avenge his imposture or violated faith, or, in other
words, to punish his perjury if he shall be guilty of it,"
10 Toullier, n. 343; Puffendorff, b. 4, c. 2, § 4. The essen-
tial idea of an oath would seem to be, however, that of a
recognition of God's authority by the party taking it, and
an undertaking to accomplish the transaction to which ft
refers as required by his laws.
See Kissing the Book.
Assertory Oath. One relating to a past or pres-
ent fact or state of facts, as distinguished from a
"promissory" oath which relates to future con-
duct; particularly, any oath required by law other
than in judicial proceedings and upon induction to
office, such, for example, as an oath to be made
at the custom-house relative to goods imported.
Corporal Oath. See Corporal.
Decisive or Decisory Oath. In the civil law,
where one of the parties to a suit, not being able
to prove his charge, offered to refer the decision
of the cause to the oath of his adversary, which
the adversary was bound to accept, or tender the
same proposal back again, otherwise the whole
was taken as confessed by him. Cod. 4, 1, 12.
Extrajudicial Oath. One not taken in any judi-
cial proceeding, or without any authority or re-
quirement of law, though taken formally before a
proper person. State v. Scatena, 84 Minn. 281, 87
N.W. 764.
False Oath. See titles "False Oath" and "Per-
jury."
Judicial Oath. One taken in some judicial pro-
ceeding or in relation to some matter connected
with judicial proceedings. One taken before an
officer in open court, as distinguished from a "non-
judicial" oath, which is taken before an officer ex
parte or out of court. State v. Dreifus, 38 La.Ann.
877.
Official Oath. One taken by an officer when he
assumes charge of his office, whereby he declares
that he will faithfully discharge the duties of the
same, or whatever else may be required by statute
in the particular case.
Poor Debtor's Oath. See Poor.
Promissory Oaths. Oaths which bind the party
to observe a certain course of conduct, or to fulfill
certain duties, in the future, or to demean himself
thereafter in a stated manner with reference to
specified objects or obligations; such, for example,
as the oath taken by a high executive officer, a
legislator, a judge, a person seeking naturalization,
an attorney at law. Case v. People, 6 Abb. N. C.,
N.Y., 151. A solemn appeal to God, or, in a wider
sense, to some superior sanction or a sacred or
revered person in witness of the inviolability of
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OBEDIENTIARIUS
a promise or undertaking. People ex rel. Bryant
v. Zimmerman, 241 N.Y. 405, 150 N.E. 497, 499, 43
A.L.R. 909.
Purgatory Oath. An oath by which a person
purges or clears himself from presumptions,
charges or suspicions standing against him, or
from a contempt.
Qualified Oath. One the force of which as an
affirmation or denial may be qualified or modified
by the circumstances under which it is taken or
which necessarily enter into it and constitute a
part of it; especially thus used in Scotch law.
Solemn Oath. A corporal oath. Jackson v.
State, 1 Ind. 184.
Suppletory Oath. In the civil and ecclesiastical
law, the testimony of a single witness to a fact
is called "half-proof," on which no sentence can
be founded; in order to supply the other half of
proof, the party himself (plaintiff or defendant)
is admitted to be examined in his own behalf, and
the oath administered to him for that purpose is
called the "suppletory oath," because it supplies
the necessary quantum of proof on which to found
the sentence. 3 Bl. Comm. 370.
This term, although without4pplication in American
law in its original sense, is somefimes used as a designa-
tion of a party's oath required to be taken in authentica-
tion or support of some piece of documentary evidence
which he offers, for example, his books of account.
Voluntary Oath. Such as a person may take in
extrajudicial matters, and not regularly in a court
of justice, or before an officer invested with au-
thority to administer the same. Brown.
OATH AGAINST BRIBERY. One which could
have been administered to a voter at an election
for members of parliament. Abolished in 1854.
Wharton.
OATH EX OFFICIO. The oath by which a clergy-
man charged with a criminal offense was formerly
allowed to swear himself to be innocent; also the
oath by which the compurgators swore that they
believed in his innocence.' 3 BL Comm. 101, 447;
Mozley & Whiteley.
OATH IN LITEM. In the civil law, an oath per-
mitted to be taken by the plaintiff, for the pur-
pose of proving the value of the subject-matter
in controversy, when there was no other evidence
on that point, or when the defendant fraudulently
suppressed evidence which might have been avail-
able. Greenl. Ev. § 348; 1 Eq. Cas. Abr. 229; Her-
man v. Drinkwater, 1 Greenl., Me., 27.
OATH OF ALLEGIANCE. An oath by which a
person promises and binds himself to bear true
allegiance to a particular sovereign or govern-
ment, e. g., the United States; administered gen-
erally to high public officers and to soldiers and
sailors, also to aliens applying for naturalization,
and, occasionally, to citizens generally as a pre-
requisite to their suing in the courts or prosecut-
ing claims before government bureaus. Rev.St.
U.S. ill 3478, 31 U.S.C.A. § 204.
OATH OF CALUMNY. In the civil law, an oath
which a plaintiff was obliged to take that he was
not prompted by malice or trickery in commenc-
ing his action, but that he had bona fide a good
cause of action. Poth. Pand. lib. 5, tt. 16, 17, s.
124.
OATH-RITE. The form used at the taking of an
oath.
OB. Lat. On account of; for. Several Latin
phrases and maxims, commencing with this word,
are more commonly introduced by "in" (q. v.).
OB CAUSAM ALIQUAM A RE MARITIMA OR-
TAM. For some cause arising out of a maritime
matter. 1 Pet. Adm. 92. Said to be Selden's trans-
lation of the French definition of admiralty juris-
diction, "pour le fait de la mer." Id.
OB CONTINENTIAM DELICTL On account of
contiguity to the offense, i. e., being contaminated
by conjunction with something illegal.
For example, the cargo of a vessel, though not contra-
band or unlawful, may be condemned in admiralty, along
with the vessel, when the vessel has been engaged in some
service which renders her liable to seizure and confiscation.
The cargo is then said to be condemned ob continentiam
delicti, because found in company with an unlawful serv-
ice. 1 Kent, Comm. 152.
OB CONTINGENTIAM. On account of connec-
tion; by reason of similarity. In Scotch law, this
phrase expresses a ground for the consolidation
of actions.
OB FAVOREM MERCATORUM. In favor of mer-
chants. Fleta, lib. 2, c. 63, § 12.
OB INFAMIAM NON SOLET JUXTA LEGEM
TERR1E ALIQUIS PER LEGEM APPARENTEM
SE PURGARE, NISI PRIUS CONVICTUS FUER-
IT VEL CONFESSUS IN CURIA. Glan. lib. 14, c.
ii. On account of evil report, it is not usual, ac-
cording to the law of the land, for any person to
purge himself, unless he have been previously con-
victed, or confessed in court.
OB TURPEM CAUSAM. For an immoral con-
sideration. Dig. 12, 5.
OBIERATUS. Lat. In Roman law, a debtor who
was obliged to serve his creditor till his debt
was discharged. Adams, Rom. Ant. 49.
OBEDIENCE. Compliance with a command, pro-
hibition, or known law and rule of duty prescribed;
the performance of what is required or enjoined
by authority, or the abstaining from what is pro-
hibited, in compliance with the command or pro-
hibition. Webster.
OBEDIENTIA. An office, or the administration of
it; a kind of rent; submission; obedience.
OBEDIENTIA EST LEGIS ESSENTIA. 11 Coke,
100. Obedience is the essence of the law.
OBEDIENTIAL OBLIGATION. See Obligation.
OBEDIENTIARIUS; OBEDIENTIARY. A mon-
astic officer. Du Cange; see 1 Poll. & Maitl. 417.
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OBIT
OBIT. A funeral solemnity, or office for the dead.
Cowell. The anniversary of a person's death;
the anniversary office. Cro. Jac. 51.
OBIT SINE PROLE. Lat. [He] died without is-
sue. Yearb. M. 1 Edw. II. 1.
OBITER. Lat. By the way; in passing; inci-
dentally; collaterally.
OBITER DICTUM. Words of a prior opinion en-
tirely unnecessary for the decision of the case.
Noel v. Olds, 78 U.S.App.D.C. 155, 138 F.2d 581,
586.
Statements in opinions wherein courts indulged
in generalities that had no actual bearing on is-
sues involved. Graham v. Jones, 198 La. 507, 3 So.
2d 761, 774.
A remark made, or opinion expressed, by a judge, in his
decision upon a cause, "by the way," that is, incidentally
or collaterally, and not directly upon the question before
him, or upon a point not necessarily involved in the deter-
mination of the cause, or introduced by way of illustration,
or analogy or argument. See Dictum.
OBJECT, In legal proceedings, to object (e. g.,
to the admission of evidence) is to interpose a
declaration to the effect that the particular matter
or thing under consideration is not done or admit-
ted with the consent of the party objecting, but is
by him considered improper or illegal, and refer-
ring the question of its propriety or legality to the
court.
OBJECT, n. End aimed at, the thing sought to
be accomplished, the aim or purpose, the thing
sought to be attained. State v. Banks, 33 Idaho
765, 198 P. 472, 474; Miller v. Tucker, 142 Miss.
146, 105 So. 774, 777.
Anything which comes within the cognizance or
scrutiny of the senses, especially anything tangi-
ble or visible. Moore v. Union Mut. Fire Ins. Co.,
112 Vt. 218, 22 A.2d 503, 505. That which is per-
ceived, known, thought of, or signified; that to-
ward which a cognitive act is directed. Cent. Dict.
The term includes whatever may be presented to the
mind as well as to the senses; whatever, also, is acted
upon or operated upon affirmatively, or intentionally in-
fluenced by anything done, moved, or applied thereto,
Wells v. Shook, 8 Blatchf. 257, Fed.Cas.No.17,406; it may
be used as having the sense of effect, Harland v. Territory,
3 Wash.T. 131, 13 P. 453.
OBJECT OF AN ACTION. Legal relief to prevent
or redress the wrong. Ophuls & Hill v. Carolina
Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824, 827. The
thing sought to be obtained by the action; the
remedy demanded or the relief or recovery sought
or prayed for; not the same thing as the cause
of action or the subject of the action. Scarbor-
ough v. Smith, 18 Kan. 406; Lassiter v. Norfolk
& C. R. Co., 136 N.C. 89, 48 S.E. 643.
OBJECT OF A STATUTE. Aim or purpose of its
enactment. Pinder v. Board of Sup'rs of Election
of Calcasieu Parish, La.App., 146 So. 715, 718;
Nichols v. Yandre, 151 Fla. 87, 9 So.2d 157, 158, 144
A.L.R. 1351. End or design which it is meant to
accomplish, while the "subject" is the matter to
which it relates and with which it deals. Medical
Examiners v. Fowler, 50 La.Ann. 1358, 24 So. 809;
McNeely v. South Penn Oil Co., 52 W.Va. 616, 44
S.E. 508, 62 L.R.A. 562. Matter or thing forming
groundwork of statute. Moats v. Cook, 113 W.Va.
151, 167 S.E. 137, 138.
OBJECTION. Act of objecting; that which is, or
may be, presented in opposition; an adverse rea-
son or argument; a reason for objecting or op-
posing; a feeling of disapproval. 131 Ken Ave. Co.
v. Gross, 125 N.J.L. 513, 16 A.2d 469, 470.
The act of a party wno ()Weds to some matter or pro-
ceeding in the course of a trial, (see Object, v.:) or an
argument or reason urged by him in support of his con-
tention that the matter or proceeding objected to is im-
proper or illegal.
By the term "objections" by the Governor to a statute,
as used in a state constitution, is meant his disapproval.
State v. Forsyth, 21 Wyo. 359, 133 P. 521, 529.
It is directed to thing done by one other than judge or
court, and "exception" going to action or ruling of court.
State ex rel. Brockman Mfg. Co. v. Miller, 241 S.W. 920,
922.
OBJECTIVE SYMPTOM. Those which a surgeon
or physician discovers from an examination of his
patient, "subjective symptoms" being those which
he learns from what his patient tells him. Schroe-
der v. Western Union Telegraph Co., Mo.App., 129
S.W.2d 917, 922.
OBJECTS OF A POWER. Those among whom
donee is given power to appoint. Restatement,
Property, § 319(3) ; Mozley & Whiteley.
OBJURGATRIX. In old English law, scolds or
unquiet women were referred to as objurgatrices
and were punished with the cucking-stool (q. v.).
OBLATA. Gifts or offerings made to the king by
any of his subjects; old debts, brought, as it were,
together from preceding years, and put on the
present sheriff's charge. Wharton.
OBLATA TERRIE. Half an acre, or, as some say,
half a perch, of land. Spelman.
OBLATE, See Oblati.
OBLATE ROLLS. Chancery Rolls (1199-1641),
called also Fine Rolls, containing records of pay-
ments to the king by way of oblate or fine for the
grant of privileges, or by way of amercement for
breach of duty. 2 Holdsw. Hist. E. L. 141.
OBLATI. In old European law, voluntary slaves
of churches or monasteries.
OBLATI ACTIO. In the civil law, an action given
to a party against another who had offered to him
a stolen thing, which was found in his possession.
Inst. 3, 1, 4.
OBLATIO. Lat. In the civil law, a tender of mon-
ey in payment of a debt made by debtor to cred-
itor. Whatever is offered to the church by the
pious. Calvin.
OBLATION. Oblations, or obventions, are offer-
ings or customary payments made, in England, to
the minister of a church, including fees on mar-
riages, burials, mortuaries, etc., (q. v.) and Easter
offerings. 2 Steph. Comm. 740; Phillim. Ecc. Law,
1596. They may be commuted by agreement.
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OBLIGATION
OBLATIONES DICUNTUR QUZECUNQUE A.
HIS FIDELIBUSQUE CHRISTIAN'S OFFER-
UNTUR DEO ET ECCLESLE, SIVE RES SOLI-
DIE SIVE MOBILES. 2 Inst. 389. Those things
are called "oblations" which are offered to God
and to the Church by pious and faithful Christians,
whether they are movable or immovable.
OBLIGATE. To bind or constrain; to bind to the
observance or performance of a duty; to place
under an obligation. To bind one's self by an
obligation or promise; to assume a duty; to ex-
ecute a written promise or covenant; to make a
writing obligatory. Wachter v. Famachon, 62 Wis.
117, 22 N.W. 160; Maxwell v. Jacksonville Loan &
Imp. Co., 45 Fla. 425, 34 So. 255.
OBLIGATIO. Lat. In Roman law, a legal bond
which obliges the performance of something in
accordance with the law of the land. Ortolan,
Inst. 2, § 1179. It corresponded nearly to our word
contract. The legal relation existing between two
certain persons whereby one (the creditor) is au-
thorized to demand of the other (the debtor) a
certain performance which has a money value.
In this sense obligatio signifies not only the duty
of the debtor, but also the right of the creditor.
The fact establishing such claim and debt, as also
the instrument evidencing it, is termed "obliga-
tion." Mackeld. Rom. Law, § 360.
That legal relation subsisting between two persons by
which one is bound to the other for a certain performance.
The passive relation sustained by the debtor to the creditor
is likewise called an "obligation." Sometimes, also, the
term "obligatio" is used for the oausa obligationis, and the
contract itself is designated an "obligation." There are
passages in which even the document which affords the
proof of a contract is called an "obligation." Such appli-
cations, however, are but a loose extension of the term,
which, according to its true idea, is only properly em-
ployed when it is used to denote the debt relationship, in
its totality, active and passive, subsisting between the
creditor and the debtor. Tomk. & J.Mod.Rom.Law, 301.
OBLIGATIO CIVILIS. An obligation enforceable
by action, whether it derives its origin from the
jus civile, as the obligation engendered by formal
contracts or the obligation enforceable by bilater-
ally penal suits, or from such portion of the jus
gentium as had been completely naturalized in
the civil law and protected by all its remedies, such,
as the obligation engendered by formless con-
tracts.
OBLIGATIO EX CONTRACTU. An obligation
arising from contract, or an antecedent jus in per-
sonam. In this there are two stages,—first, a
primary or sanctioned personal right antecedent to
wrong, and, afterwards, a secondary or sanction-
ing personal right consequent on a wrong. Poste's
Gaius' Inst. 359.
OBLIGATIO EX DELICTO, or OBLIGATIO EX
MALEFICIO. An obligation founded on wrong or
tort, or arising from the invasion of a jus in rem.
In this there is the second stage, a secondary or
sanctioning personal right consequent on a wrong,
but the first stage is not a personal right, (jus in,
personam,) but a real right, (jus in rem,) wheth-
er a primordial right, right of status, or of proper-
ty. Poste's Gaius' Inst. 359,
OBLIGATIO NATURAL'S. An obligation not im-
mediately enforceable by action; one deriving its
validity from the law of nature, or one imposed
by that portion of the jus gentium which is only
imperfectly recognized by civil law.
These had not the binding force of the other classes, not
being capable of enforcement by action, and are, therefore,
not noticed by Justinian in his classification; but they had,
nevertheless, a certain efficacy even in the civil law: for
instance, though a debt founded upon a natural obligation
could not be recovered by an action, yet if it was volun-
tarily paid by the debtor he could not recover it back, as
he might do in the case of money paid by mistake, etc.,
where no natural obligation existed. L. 38, pr. D. 12. 6;
Ortolan 2, § 1180.
OBLIGATIO PRJETORIA. The Romans consid-
ered that obligations derived their validity solely
from positive law. At first the only ones recog-
nized were those established in special cases in
accordance with the forms prescribed by the strict
jus civile. In the course of time, however, the
praetorian jurisdiction, in mitigation of the prim-
tive rigor of the law, introduced new modes of
contracting obligations and provided the means of
enforcing them; hence the twofold division made
by Justinian of obligationes civiles and obliga-
tiones prcetorice. Inst. 1. 3. 13.
OBLIGATION. A generic word, derived from the
Latin substantive "obligatio," having many, wide,
and varied meanings, according to the context in
which it is used. Enyeart v. City of Lincoln, 136
Neb. 146, 285 N.W. 314, 318. That which a person
is bound to do or forbear; any duty imposed by
law, promise, contract, relations of society, cour-
tesy, kindness, etc. Goodwin v. Freadrich, 135
Neb. 203, 280 N.W. 917, 923. Duty. Rucks-Brandt
Const. Co. v. Price, 165 Oki. 178, 23 P.2d 690. Duty
imposed by law. Helvering v. British-American
Tobacco Co., C.C.A., 69 F.2d 528, 530. Law or duty
binding parties to perform their agreement. An
undertaking to perform. State v. Citrus County,
116 Fla. 676, 157 So. 4, 97 A.L.R. 431. That which
constitutes a legal or moral duty and which ren-
ders a person liable to coercion and punishment
for neglecting it; a word of broad meaning, and
the particular meaning intended is to be gained
by consideration of its context. An obligation or
debt may exist by reason of a judgment as well
as an express contract, in either case there being
a legal duty on the part of the one bound to com-
ply with the promise. Schwartz v. California
Claim Service, 52 Cal.App.2d 47, 125 P.2d 883, 888.
Liabilities created by contract or law, Rose v. W.
B. Worthen Co., 186 Ark. 205, 53 S.W.2d 15, 16, 85
A.L.R. 212; or tort. Exchange Bank v. Ford, 3
P. 449, 451, 7 Colo. 314. As legal term word orig-
inally meant a sealed bond, but it now extends to
any certain written promise to pay money or do a
specific thing. Lee v. Kenan, C.C.A.Fla., 78 F.2d
425, 100 A.L.R. 869. A formal and binding agree-
ment or acknowledgment of a liability to pay a
certain sum or do a certain thing. United States
v. One Zumstein Briefmarken Katalog 1938, D.C.
Pa., 24 F.Supp. 516, 519.
The binding power of a vow, promise, oath, or contract,
or of law, civil, political, or moral, independent of a prom-
ise; that which constitutes legal or moral duty, and which
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OBLIGATION
renders a person liable to coercion and punishment for neg-
lecting it. Webster.
A tie which binds us to pay or do something agreeably
to the laws and customs of the country in which the obliga-
tion is made. Inst. 3, 14.
Obligation is (1) legal or moral duty, as opposed to
physical compulsion; (2) a duty incumbent upon an in-
dividual, or a specific and limited number of individuals,
as opposed to a duty imposed upon the world at large; (3)
the right to enforce such a duty, (jus in personam,) as
opposed to such a right as that of property, (jus in rem,)
which avails against the world at large; (4) a bond con-
taining a penalty, with a condition annexed, for the pay-
ment of money, performance of covenants, or the like.
Mozley & Whitley.
"Obligation" is the correlative of "right." Taking the
latter word in its politico-ethical sense, as a power of free
action lodged in a person, "obligation" is the correspond-
ing duty, constraint, or binding force which should prevent
all other persons from denying, abridging, or obstructing
such right, or interfering with its exercise. And the same
is its meaning as the correlative of a "jus in rem." Tak-
ing "right" as meaning a "jus in personam," (a power,
demand, claim, or privilege inherent in one person, and
incident upon another,) the "obligation" is the coercive
force or control imposed upon the person of incidence by
the moral law and the positive law, (or the moral law as
recognized and sanctioned by the positive law,) constrain-
ing him to accede to the demand, render up the thing
claimed, pay the money due, or otherwise perform what is
expected of him with respect to the subject-matter of the
right.
A penal bond or "writing obligatory," that is, a bond
containing a penalty, with a condition annexed for the pay-
ment of money, performance of covenants, or the like, and
which differs from a bill, the latter being generally with-
out a penalty or condition, though it may be obligatory.
Co. Litt. 172.
A deed whereby a man binds himself under a penalty to
do a thing. Com.Dig. Obligation (A) ; Taylor v. Glaser, 2
Serg. & R., Pa., 502; Denton v. Adams, 6 Vt. 40. The
word has a very broad and comprehensive legal significa-
tion and embraces all instruments of writing, however
informal, whereby one party contracts with another for
the payment of money or the delivery of specific articles.
State v. Campbell, 103 N.C. 344, 9 S.E. 410; Morrison v.
Lovejoy, 6 Minn. 353, Gil. 224; Sinton v. Carter Co., 23
F. 535.
In English expositions of the Roman law, and works
upon general jurisprudence, "obligation" is used to trans-
late the Latin "obligatio." In this sense its meaning is
much wider than as a technical term of English law. See
Obligatio.
Absolute obligation. One which gives no alter-
native to the obligor, but requires fulfillment ac-
cording to the engagement.
Conjunctive or alternative obligation. The for-
mer is one in which the several objects in it are
connected by a copulative, or in any other manner
which shows that all of them are severally com-
prised in the contract. This contract creates as
many different obligations as there are different
objects; and the debtor, when he wishes to dis-
charge himself, may force the creditor to receive
them separately. But where the things which
form the object of the contract are separated by
a disjunctive, then the obligation is alternative,
and the performance of either of such things will
discharge the obligor. The choice of performing
one of the obligations belongs to the obligor, un-
less it is expressly agreed that it shall belong
to the creditor. Civ.Code La. art. 2068; Dougl. 14;
1 Ld. Raym. 279; Galloway v. Legan, 4 Mart. N.
S. (La.) 167. A promise to deliver a certain thing
or to pay a specified sum of money is an example
of an alternative obligation. Civ.Code La. arts.
2063, 2066, 2067.
Contractual obligation. One which arises from
a contract or agreement.
Determinate or indeterminate obligation. A de-
terminate obligation is one which has for its ob-
ject a certain thing: as, an obligation to deliver a
certain horse named Bucephalus, in which case
the obligation can be discharged only by delivering
the identical horse. An indeterminate obligation
is one where the obligor binds himself to deliver
one of a certain species: as, to deliver a horse,
where the delivery of any horse will discharge the
obligation.
Divisible or indivisible obligation. A divisible
obligation is one which, being a unit, may never-
theless be lawfully divided, with or without the
consent of the parties. An indivisible obligation
is one which is not susceptible of division: as, for
example, ,if I promise to pay you one hundred dol-
lars, you cannot assign one-half of this to anoth-
er, so as to give him a right of action against me
for his share.
Express or implied obligation. Express or con-
ventional obligations are those by which the ob-
ligor binds himself in express terms to perform his
obligation, while implied obligations are such as
are raised by the implication or inference of the
law from the nature of the transaction.
Failure to meet obligations. See Failure to Meet
Obligations.
Joint or several obligation. A joint obligation
is one by which two or more obligors bind them-
selves jointly for the performance of the obliga-
tion. France v. France, 94 Or. 414, 185 P. 1108.
A several obligation is one where the obligors
promise, each for himself, to fulfill the engage-
ment.
Moral obligation. A duty which is valid and
binding in conscience and according to natural
justice, but is not recognized by the law as ade-
quate to set in motion the machinery of justice;
that is, one which rests upon ethical considerations
alone, and is not imposed or enforced by positive
law. Taylor v. Hotchkiss, 81 App.Div. 470, 80 N.
Y.S. 1042; Bailey v. Philadelphia, 167 Pa. 569, 31
A. 925, 46 Am.St.Rep. 691. A duty which would be
enforceable by law, were it not for some positive
rule, which, with a view to general benefit, ex-
empts the party in that particular instance from
legal liability. Backhaus v. Lee, 49 N.D. 821, 194
N.W. 887, 890; Longstreth v. City of Philadelphia,
245 Pa. 233, 91 A. 667.
Natural or civil obligation. A natural obliga-
tion is one which cannot be enforced by action,
but which is binding on the party who makes it
in conscience and according to natural justice;
Blair v. Williams, 4 Litt., Ky., 41. As, for instance,
when the action is barred by the act of limitation,
a natural obligation still subsists, although the
civil obligation is extinguished; Sturges v. Crown-
inshield, 4 Wheat. 197, 4 L.Ed. 529; Ogden v.
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OBLIGATION
Saunders, 12 Wheat. 318, 337, 6 L.Ed. 606. A civil
obligation is a legal tie, which gives the party
with whom it is contracted the right of enforcing
its performance by law. Civ.Code La. art. 1757;
Poth. Obl. 173, 191.
Obedientlal obligation. One incumbent on par-
ties in consequence of the situation or relation-
ship in which they are placed. Ersk. Prin. 60.
Perfect or imperfect obligation. A perfect obli-
gation is one recognized and sanctioned by posi-
tive law; one of which the fulfillment can be en-
forced by the aid of the law. Aycock v. Martin,
37 Ga. 124, 92 Am.Dec. 56. But if the duty created
by the obligation operates only on the moral sense,
without being enforced by any positive law, it is
called an "imperfect obligation," and creates no
right of action, nor has it any legal operation. The
duty of exercising gratitude, charity, and the other
merely moral duties are examples of this kind of
obligation. Civ.Code La. art. 1757; Edwards v.
Kearzey, 96 U.S. 600, 24 L.Ed. 793.
Personal or heritable obligation. An obligation
is heritable when the heirs and assigns of one
party may enforce the performance against the
heirs of the other. Civ.Code La. art. 1997. It is
personal when the obligor binds himself only, not
his heirs or representatives. An obligation is
strictly personal when none but the obligee can
enforce the performance, or when it can be en-
forced only against the obligor. Civ.Code La. art.
1997. An obligation may be personal as to the ob-
ligee, and heritable as to the obligor, and it may
in like manner be heritable as to the obligee, and
personal as to the obligor. Civ.Code La. art. 1998.
For the term personal obligation, as used in a dif-
ferent sense, see the next paragraph.
Personal or real obligation. A personal obliga-
tion is one by which the obligor binds himself to
perform an act, without directly binding his prop-
erty for its performance. A real obligation is one
by which real estate, and not the person, is liable
to the obligee for the performance.
Thus, when an estate owes an easement, as a right of
way, it is the thing, and not the owner, who owes the ease-
ment. Another instance of a real obligation occurs when
a person buys an estate which has been mortgaged, sub-
ject to the mortgage; he is not liable for the debt, though
the estate is. In these cases the owner has an interest
only because he is seized of the servient estate or the mort-
gaged premises, and he may discharge himself by abandon-
ing or parting with the property. The obligation is both
personal and real when the obligor has bound himself and
pledged his estate for the fulfilment of the obligations. In
the civil law and in Louisiana, a real obligation is one
which is attached to immovable property, and it passes
with such property into whatever hands the property may
come, without making the third possessor personally re-
sponsible. Civ.Code La. art. 1997.
Primary obligation. An obligation which is the
principal object of the contract.
For example, the primary obligation of the seller is to
deliver the thing sold, and to transfer the title to it. It is
distinguished from the accessory or secondary obligation
to pay damages for not doing so. 1 Bouv.Inst. no. 702.
The words "primary" and "direct," contrasted with "sec-
ondary," when spoken with reference to an obligation,
refer to the remedy provided by law for enforcing the obli-
gation, rather than to the character and limits of the obli-
gation itself. Kilton v. Providence Tool Co., 22 R.I. 605,
48 A. 1039.
Primitive or secondary obligation. A primitive
obligation, which in one sense may also be called
a principal obligation, is one which is contracted
with a design that it should itself be the first ful-
filled. A secondary obligation is one which is con-
tracted and is to be performed in case the primi-
tive cannot be. For example, if one sells his house,
he binds himself to give a title; but if he finds he
cannot as when the title is in another, then his
secondary obligation is to pay damages for non-
performance of the obligation.
Principal or accessory obligation. A principal
obligation is one which arises from the principal
object of the engagement of the contracting par-
ties; while an accessory obligation depends upon
or is collateral to the principal. See Poth. Obl. no.
182.
For example, in the case of the sale of a house and lot
of ground, the principal obligation on the part of the ven-
dor is to make title for it; the accessory obligation is to
deliver all the title-papers which the vendor has relating
to it, to take care of the estate until it is delivered, and
the like. See, further, the title Accessory Obligation.
Pure obligation. One which is not suspended
by any condition, whether it has been contracted
without any condition, or, when thus contracted,
the condition has been accomplished. Poth. Obl.
no. 176. See simple obligation.
Simple or conditional obligation. Simple obliga-
tions are such as are not dependent for their exe-
cution on any event provided for by the parties,
and which are not agreed to become void on the
happening of any such event. Conditional obliga-
tions are such as are made to depend on an un-
certain event. If the obligation is not to take
effect until the event happens, it is a suspensive
condition; if the obligation takes effect immediate-
ly, but is liable to be defeated when the event hap-
pens, it is then a resolutory condition. Civ.Code
La. arts. 2020, 2021; Moss v. Smoker, 2 La.Ann.
989. A simple obligation is also defined as one
which is not suspended by any condition, either
because it has been contracted without condition,
or, having been contracted with one, the condition
has been fulfilled; and a conditional obligation is
also defined as one the execution of which is sus-
pended by a condition which has not been accom-
plished, and subject to which it has been contract-
ed.
Single or penal obligation. A penal obligation
is one to which is attached a penal clause, which
is to be enforced if the principal obligation be-
not performed. A single obligation is one with-
out any penalty: as where one simply promises to
pay another one hundred dollars. This is called
a single bill, when it is under seal.
Solidary obligation. In the law of Louisiana,
one which binds each of the obligors for the whole
debt, as distinguished from a "joint" obligation,
which binds the parties each for his separate pro-
portion of the debt. Groves v. Sentell, 14 S.Ct.
898, 153 U.S. 465, 38 L.Ed. 785. See Solidary.
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OBLIGATION OF
OBLIGATION OF A CONTRACT. That which
law in force when contract is made obliges parties
to do or not to do, and remedy and legal means to
carry it into effect. Harris v. Monroe Building &
Loan Ass'n, La.App., 154 So. 503, 505.
As used in Const.U.S. art. 1, § 10, the term means the
binding and coercive force which constrains every man to
perform the agreements he has made; a force grounded in
the ethical principle of fidelity to one's promises, but deriv-
ing its legal efficacy from its recognition by positive law,
and sanctioned by the law's providing a remedy for the
infraction of the duty or for the enforcement of the cor-
relative right. Story, Const. § 1378; Black, Const.Prohib.
§ 139; Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606.
The "obligation of a contract" is its binding force ac-
cording to the standards of law in existence when it was
made. Colby v. City of Medford, 85 Or. 485, 167 P. 487,
499. The "obligation of a contract" is the duty of per-
formance. Hays v. Port of Seattle, D.C.Wash., 226 F. 287,
293. The term includes everything within the obligatory
scope of the contract, and it includes the means of enforce-
ment. E. J. Lander & Co. v. Deemy, 46 N. D. 273, 176 N.W.
922, 925; Franklin Sugar Refining Co. v. Martin-Nelly
Grocery Co., 94 W.Va. 504, 119 S.E. 473, 476.
OBLIGATION SOLIDAIRE. This, in French law,
corresponds to joint and several liability in Eng-
lish law, but is applied also to the joint and several
rights of the creditors parties to the obligation.
OBLIGATIONES EX DELICTO or EX MALE-
FICIO. Obligations arising from the commission
of a wrongful injury to the person or property of
another.
"Delictum" is not exactly synonymous' with "tort," for,
while it includes most of the wrongs known to the common
law as torts, it is also wide enough to cover some offenses
(such as theft and robbery) primarily injurious to the in-
dividual, but now only punished as crimes. Such acts
gave rise to an obligatio, which consisted in the liability
to pay damages.
OBLIGATIONES EX VARIIS CAUSARUM FIG-
URIS. Athough Justinian confined the divisions
of obligations to four classes, namely obligationes
ex contractu, quasi ex contractu, ex maleficio and
quasi ex male ficio, there are many species of obli-
gations which cannot properly be reduced within
any of these classes. Some authorities have, con-
sequently, established a fifth class, to receive the
odds and ends which belonged nowhere else, and
have given to this class the above designation, bor-
rowed from Gaius, 1. 1, pr. § 1, D. 44, 7; Mackel-
dey § 474; Hadley, Rom. Law 209, etc.
OBLIGATIONES QUASI EX CONTRACTU. Of-
ten persons who have not contracted with each
other, under a certain state of facts, are regarded
by the Roman law as if they had actually conclud-
ed a convention between themselves. The legal
relation which then takes place between these per-
sons, which has always a similarity to a contract
obligation, is therefore termed obligatio quasi ex
contractu.
Such a relation arises from the conducting of affairs
without authority, (negotiorum gestio) or unauthorized
agency; from the management of property that is in com-
mon when the community arose from casualty, (communio
;Heiden); from the payment of what was not due (solutio
indebiti); from tutorship and curatorship (tutela and
cura), resembling the relation of guardian and ward; from
taking possession of an inheritance (additio hereditatis and
agnitio bonorum possessionis); and in many other cases.
Mackeld.Rom.Law, § 491.
OBLIGATIONES QUASI EX DELICTO, or OBLI-
GATIONES QUASI EX MALIFICIO. This class
embraces all torts not coming under the denomina-
tion of delicta and not having a special form of
action provided for them by law. They differed
widely in character, and at common law would in
some cases give rise to an action on the case, in
others to an action on an implied contract. Ort.
Inst. §§ 1781-1792.
OBLIGATORY PACT. See Pact.
OBLIGATORY RIGHTS. See Right
OBLIGATORY WRITING. See Writing Obliga-
tory.
OBLIGEE. The person in favor of whom some
obligation is contracted, whether such obligation
be to pay money or to do or not to do something.
Code La. art. 3522, no. 11 (Civ.Code, art. 3556, subd.
20). Jenkins v. Williams, 191 Ky. 165, 229 S.W. 94,
95. The party to whom a bond is given.
Obligees are either several or joint. An obligee is sev-
eral when the obligation is made to him alone; obligees
are joint when the obligation is made to two or more; and
in that event each is not a creditor for his separate share,
unless the nature of the subject or the particularity of the
expression in the instrument lead to a different conclusion.
2 Pothier, Obl., Evans ed. 56; Hob. 172; Cro.Jac. 251.
The words obligee and payee have been held to have a
technical and definite meaning under an act relative to
promissory notes, bonds, etc., and apply only to notes,
bonds, or bills whether given for the payment of money or
for the performance of covenants and conditions, and not
to mortgages; Hall v. Bryne, 1 Scam., Ill., 142.
OBLIGOR. The person who has engaged to per-
form some obligation. Code La. art. 3522, no. 12,
Civ.Code, art. 3556, subd. 21. One who makes a
bond.
Includes person liable for tort. Sarine v. Ameri-
can Lumbermen's Casualty Co. of Illinois, 258
App.Div. 653, 17 N.Y.S.2d 754, 756.
Obligors are joint and several. They are joint when
they agree to pay the obligation jointly. They are several
when one or more bind themselves and each of them sepa-
rately to perform the obligation. In order to become an
obligor, the party must actually, either himself or by his
attorney, enter into the obligation and execute it as his
own.
OBLIQUUS. Lat.
In the old law of descents, oblique; cross; trans-
verse; collateral. The opposite of rectus, right,
or upright.
In the law of evidence, indirect; circumstantial.
OBLITERATED CORNER. See Corner.
OBLITERATION. Erasure or blotting out of
written words.
Lines drawn through the signatures of the witnesses to
a will amount to an "obliteration," though the signatures
be discernible. In re Kutzner's Will, 19 N.Y.S.2d 13, 16,
173 Misc. 776. Same where line is drawn through writing.
Glass v. Scott, 14 Colo.App. 377, 60 P. 186; Evans' Appeal,
58 Pa. 244; Townshend v. Howard, 86 Me. 285, 29 A. 1077.
When the testator of a holographic will wrote across its
face "Will revoked," and "This will is hereby revoked,"
and signed his name with lines beneath the signature, the
will was canceled, defaced, and obliterated, within Dece-
dent Estate Law, § 34, subds. 5, 6 (Consol.Laws, c. 13).
In re Parsons' Will, 195 N.Y.S. 742, 745, 119 Misc. 26.
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OBSTRICTION
OBLIVION. Act of forgetting, or fact of having
forgotten; forgetfulness. Official ignoring of of-
fenses; amnesty, or general pardon; as, an act
of oblivion. State or fact of being forgotten.
Webster, Dict. A kind of annihilation. Gilbert v.
Missouri Pac. Ry. Co., 92 Kan. 281, 140 P. 883.
OBLIVIOUS. Evincing oblivion; forgetful; for-
getting. Webster, Dict. Where thing is extin-
guished from mind. Gilbert v. Missouri Pac. Ry.
Co., 92 Kan. 281, 140 P. 883.
OBLOQUY. Censure and reproach. Bettner v.
Holt, 70 Cal. 275, 11 Pac. 716. Blame, reprehension,
being under censure, a cause or object of reproach,
a disgrace. Burr v. Winnett Times Pub. Co., 80
Mont. 70, 258 P. 242, 246.
OBNOXIOUS. "Obnoxious" and "offensive" in or-
dinary use are synonymous, and mean objection-
able, disagreeable, displeasing, and distasteful.
City of Muskogee v. Morton, 128 Okl. 17, 261 P.
183, 184.
OBRA. In Spanish law, work. Obras, works or
trades; those which men carry on in houses or
covered places. White, New Recop. b. 1, tit. 5, c.
3, § 6.
OBREPTIO. Lat. The obtaining a thing by fraud
or surprise. Calvin. Called, in Scotch law, "obrep-
tion."
OBREPTION. Obtaining anything by fraud or
surprise. Acquisition of escheats, etc., from the
sovereign, by making false representations. Bell.
See, also, Subreption.
OBROGARE. Lat. In the civil law, to pass a law
contrary to a former law, or to some clause of it;
to change a former law in some part of it. Calvin.
OBROGATION. In the civil law, the annulling a
law, in whole or in part, by passing a law contrary
to it. The alteration of a law. Calvin.
OBSCENE. Material is "obscene" if to average
person, applying contemporary community stand-
ards, dominant theme of material taken as a whole
appeals to prurient interest, if it is utterly with-
out redeeming social importance, if it goes sub-
stantially beyond customary limits of candor in
description or representation, if it is characterized
by patent offensiveness, and if it is hard-core
pornography. Roth v. United States, 354 U.S.
476, 77 S.Ct. 1304; Jacobellis v. Ohio, 378 U.S. 184,
84 S.Ct. 1676; Manual Enterprises, Inc. v. Day,
370 U.S. 478, 82 S.Ct. 1432; U. S. v. Klaw, C.A.N.Y.,
350 F.2d 155, 164.
Offensive to chastity of mind or to modesty, ex-
pressing or presenting to the mind or view some-
thing that delicacy, purity, and decency forbids
to be exposed; calculated to corrupt, deprave, and
debauch the morals of the people, and promote
violation of law; licentious and libidinous and
tending to excite feelings of an impure or unchaste
character; tending to stir the sex impulses or to
lead to sexually impure and lustful thoughts;
tending to corrupt the morals of youth or to lower
the standards of right and wrong especially as to
the sexual relation. Parmelee v. United States, 72
App.D.C. 203, 113 F.2d 729, 730.
OBSCENE BOOK or PAPER. An obscene book
or paper within the act relating to nonmailable
matter means one which contains immodest and
indecent matter, the reading whereof would have
a tendency to deprave and corrupt the minds of
those in whose hands the publication might fall,
and whose minds are open to such immoral in-
fluences; U. S. v. Clarke, D.C.Mo., 38 Fed. 732.
OBSCENITY. The character or quality of being
obscene; conduct tending to corrupt the public
morals by its indecency or lewdness. State v.
Pfenninger, 76 Mo.App. 313; U. S. v. Males, D.C.
Ind., 51 Fed. 41.
OBSCURE. When applied to words, statements
or meanings, it signifies not perspicuous, not clear-
ly expressed, hard to understand. Western Union
Telegraph Co. v. Geo. F. Fish, Inc., 148 Md. 210,
129 A. 14, 16.
OBSERVE. In the civil law, to perform that which
has been prescribed by some law or usage. Dig.
1, 3, 32; Marshall County v. Knoll, 102 Iowa 573,
69 N.W. 1146.
OBSES. Lat. In the law of war, a hostage. Ob-
sides, hostages.
OBSIGNARE. Lat. In the civil law, to seal up;
as money that had been tendered and refused.
OBSIGNATORY. Ratifying and confirming.
OBSOLESCENCE. Condition or process of fall-
ing into disuse. State Line & Sullivan R. Co. v.
Phillips, D.C.Pa., 17 F.Supp. 607, 609, 610.
OBSOLESCENT. Becoming obsolete; going out
of use; not entirely disused, but gradually becom-
ing so.
OBSOLETE. That which is no longer used.
Becker v. Anheuser-Busch, Inc., C.C.A.Mo., 120 F.
2d 403, 416. Disused; neglected; not observed.
The term is applied to statutes which have become inop-
erative by lapse of time, either because the reason for
their enactment has passed away, or their subject-matter
no longer exists, or they are not applicable to changed cir-
cumstances, or are tacitly disregarded by all men, yet
without being expressly abrogated or repealed. Lemen v.
Kansas Flour Mills Co., 122 Kan. 574, 253 P. 547, 548.
OBSTA PRINCIPIIS. Lat. Withstand begin-
nings; resist the first approaches or encroach-
ments. Bradley, J., Boyd v. U. S., 116 U.S. 635, 6
Sup.Ct. 535, 29 L.Ed. 746.
OBSTANTE. Withstanding; hindering. See Non
Obstante.
OBSTETRICS. The branch of medical science
which has to do with the care of women during
pregnancy and parturition. Stoike v. Weseman,
167 Minn. 266, 208 N.W. 993.
OBSTINATE DESERTION. "Obstinate" as used
of desertion, which is a ground for divorce, means
determined, fixed, persistent. Mitchell v. Mitchell,
91 Fla. 427, 107 So. 630, 631. Persisted in against
the willingness of the injured party to have it con-
cluded. Laing v. Laing, 110 N.J.Eq. 411, 160 A.
510, 511.
OBSTRICTION. Obligation; bond.
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OBSTRUCT. To hinder or prevent from progress,
check, stop, also to retard the progress of, make
accomplishment of difficult and slow. Conley v.
United States, C.C.A.Minn., 59 F.2d 929, 936. To be
or come in the way of or to cut off the sight of an
object. Silva v. Waldie, 42 N.M. 514, 82 P.2d 282,
286. To block up; to interpose obstacles; to ren-
der impassable; to fill with barriers or impedi-
ments; as to obstruct a road or way. U. S. v.
Williams, 28 Fed.Cas. 633; Chase v. Oshkosh, 81
Wis. 313, 51 N.W. 560, 15 L.R.A. 553, 29 Am.St.Rep.
898. To impede; to interpose impediments, to the
hindrance or frustration of some act or service;
as to obstruct an officer in the execution of his
duty. Davis v. State, 76 Ga. 722; Lamon v. Gold,
72 W.Va. 618, 79 S.E. 728, 730, 51 L.R.A.,N.S., 883.
As applied to navigable waters, to "obstruct" them is to
interpose such impediments in the way of free and open
navigation that vessels are thereby prevented from going
where ordinarily they have a right to go or where they
may find it necessary to go in their maneuvers. The City
of Richmond, D.C.S.D.N.Y., 43 F. 88; Terre Haute Draw-
bridge Co. v. Halliday, 4 Ind. 36; The Vancouver, 28 F.
Cas. 960.
OBSTRUCTING JUSTICE. Impeding or obstruct.
ing those who seek justice in a court, or those who
have duties or powers of administering justice
therein. People v. Ormsby, 310 Mich. 291, 17 N.W.
2d 187, 190.
The act by which one or more persons attempt to pre-
vent, or do prevent, the execution of lawful process. The
term applies also to obstructing the administration of jus-
tice in any way-as by hindering witnesses from appear-
ing. Melton v. Commonwealth, 160 Ky. 642, 170 S.W. 37,
42, L.R.A.1915B, 689; People v. Hebbard, 162 N.Y.S. 80, 89,
96 Misc.Rep. 617. Any act, conduct, or directing agency
pertaining to pending proceedings, intended to play on
human frailty and to deflect and deter court from perform-
ance of its duty and drive it into compromise with its own
unfettered judgment by placing it, through medium of
knowingly false assertion, in wrong position before public,
constitutes an obstruction to administration of justice.
State v. Shumaker, 200 Ind. 623, 157 N.E. 769, 774, 58
A.L.R. 954; Toledo Newspaper Co. v. U. S., 247 U.S. 402,
38 S.Ct. 560, 564, 62 L.Ed. 1186.
OBSTRUCTING AN OFFICER. Implies forcible
resistance; State v. Le Blanc, 115 Me. 142, 98 A.
119, 120; contra, State v. Estes, 185 N.C. 752, 117
S.E. 581, 582.
To "obstruct" a public officer means to oppose that offi-
cer. It does not mean to oppose or impede the process
with which the officer is armed, or to defeat its execution,
but that the officer himself shall be obstructed. Knoff v.
State, 18 Okl.Cr. 36, 192 P. 596, 597; Ratcliff v. State, 12
Okl.Cr. 448, 158 P. 293, 294.
OBSTRUCTING PROCEEDINGS OF LEGISLA-
TURE. The term embraces not only things done
in the presence of the legislature, but those done
in disobedience of a committee. Ex parte Young-
blood, 94 Tex.Cr.R. 330, 251 S.W. 509, 512.
OBSTRUCTING PROCESS. In criminal law, the
act by which one or more persons attempt to pre-
vent or do prevent the execution of lawful process.
OBSTRUCTING THE RECRUITING OR EN-
LISTMENT SERVICE. The phrase in Espionage
Act, tit. 1, § 3 (50 USCA § 33 note), should be giv-
en a broad meaning, and includes to hinder, im-
pede, embarrass, and retard, in whole or in part.
Doe v. U. S., C.C.A.Colo., 253 F. 903, 906. The term
does not necessarily mean actual prevention of en-
listments or recruiting, it being sufficient if one
interferes with such service or renders it more
difficult. Rhuberg v. United States, C.C.A.Or., 255
F. 865, 869; U. S. v. Pierce, D.C.N.Y., 245 F. 878,
884. It contemplates more than a physical ob-
struction. O'Hare v. U. S., C.C.A.N.D., 253 F. 538,
540.
OBSTRUCTION. A hindrance, obstacle, or bar-
rier. Carder v. City of Clarksburg, 100 W.Va.
605, 131 S.E. 349, 352. Delay, impeding or hinder-
ing. State v. Malpass, 189 N.C. 349, 127 S.E. 248,
250.
This is the word properly descriptive of an injury to any-
one's incorporeal hereditament, e. g., his right to an ease-
ment, or profit a prendre; an alternative word being "dis-
turbance." On the other hand, "infringement" is the
word properly descriptive of an injury to any one's patent-
rights or to his copyright. But "obstruction" is also a
very general word in law, being applicable to every hin-
drance of a man in the discharge of his duty, (whether
official, public, or private.) Brown.
"Obstruction" in highway includes anything interfering
with highway easement. Andrew B. Hendryx Co. v. City
of New Haven, 104 Conn. 632, 134 A. 77, 79.
"Obstruction," within a statute requiring certain pre-
cautions by those in bharge of train on appearance of ob-
struction, means obstacle, impediment, hindrance, bar, bar-
rier, clog, or check. Howard & Herrin v. Nashville, C. &
St. L. Ry. Co., 153 Tenn. 649, 284 S.W. 894, 896, 46 A.L.R.
1530; Turner v. Southern Ry. Co., 112 Miss. 359, 73 So.
62, 63.
As applied to the operation of railroads, an "obstruc-
tion" may be either that which obstructs or hinders the
free and safe passage of a train, or that which may receive
an injury or damage, such as it would be unlawful to in-
flict, if run over or against by the train, as in the case of
cattle or a man approaching on the track. Louisville N. &
G. R. Co. v. Reidmond, 11 Lea, Tenn., 205; South & North
Alabama R. Co. v. Williams, 65 Ala. 77.
OBSTRUCTION TO NAVIGATION. Any unnec-
cessary interference with the free movements of
vessels. The Steam Dredge No. 6, D.C.N.Y., 222 F.
576, 579.
OBTAIN. To get hold of by effort; to get posses-
sion of; to procure; to acquire, in any way. State
v. Bowdry, 346 Mo. 1090, 145 S.W.2d 127, 129.
The word in statute relating to obtaining money or prop-
erty by false pretenses, is not limited to getting, securing,
or appropriating money or property as owner. It includes
as well the getting or securing of money or property by
way of a loan. Tingue v. State, 90 Ohio St. 368, 108 N.E.
222, 223, Ann.Cas.1916C, 1156. As used in a confidence
game statute it means to acquire the possession of, or con-
trol of, and not necessarily to acquire title to. People v.
Miller, 278 Ill. 490, 116 N.E. 131, 138, L.R.A.1917E, 797.
OBTAINING MONEY BY FALSE PRETENSES.
See False Pretenses.
OBTEMPER. See Obtemperare.
OBTEMPERANDUM EST CONSUETUDINI RA-
TIONABILI TANQUAM LEGI. A reasonable
custom is to be obeyed as a law. 4 Coke, 38.
OBTEMPERARE. Lat. To obey. Hence the
Scotch "obtemper," to obey or comply with a judg-
ment of a court.
OBTEST. To protest.
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OBTORTO COLLO. In Roman law, taken by the
neck or collar; as a plaintiff was allowed to drag
a reluctant defendant to court. Adams, Rom. Ant.
242.
OBTULIT SE. Offered himself. In old practice,
the emphatic words of entry on the record where
one party offered himself in court against the
other, and the latter did not appear. 1 Reeve, Eng.
Law, 417.
OBVENTIO. Lat. (from obvenire, to fall in).
In the civil law, rent; profits; income; the re-
turn from an investment or thing owned; as the
earnings of a vessel. Generally used in the plural.
In old English law, the revenue of a spiritual
living, so called. Also, in the plural, "offerings."
OBVENTION. See Obventio; Oblation.
OBVIOUS. Easily discovered, seen, or understood,
readily perceived by the eye or the intellect, plain,
synonymous with the words "plain," "clear," and
"evident." Combs v. Colonial Casualty Co., 73 W.
Va. 473, 80 S.E. 779, 781, 50 L.R.A.,N.S., 1218. Ap-
parent; evident; manifest. Fandeck v. Barnett
& Record Co., 161 Wis. 55, 150 N.W. 537, 541;
Tolfree v. Wetzler, D.C.N.J., 22 F.2d 214.
OBVIOUS DANGER. Apparent in exercise of or-
dinary observation and disclosed by use of eyes
and other senses. Patterson v. Cleveland Cliffs
Iron Co., 37 Ohio App. 316, 174 N.E. 592, 594. Plain
and apparent to a reasonably observant person.
Combs v. Colonial Casualty Co., 73 W.Va. 473, 80
S.E. 779, 780, 50 L.R.A.,N.S., 1218.
OBVIOUS RISK. One so plain that it would be
instantly recognized by a person of ordinary in-
telligence. City of Atlanta v. Trussell, 21 Ga.App.
340, 94 S.E. 649, 653. Within an accident policy,
one which would be plain and apparent to a rea-
sonably prudent and cautious person in the use of
his faculties. Christensen v. National Travelers'
Ben. Ass'n of Des Moines, Iowa, 196 Iowa 375, 194
N.W. 194, 196, 29 A.L.R. 709. It does not mean an
unnecessary risk. Hickman v. Ohio State Life
Ins. Co., 92 Ohio St. 87, 110 N.E. 542, 543.
OCASION. In Spanish law, accident. Las Para.
das, pt. 3, tit. 32, 1. 21; White, New Recop. b. 2,
tit. 9, c. 2.
OCCASIO. In feudal law, a tribute which the
lord imposed on his vassals or tenants for his ne-
cessity. Hindrance; trouble; vexation by suit.
See, also, Occasiones.
OCCASION, n. That which provides an oppor-
tunity for the causal agency to act. Weinberg v.
Richardson, 291 Ill.App. 618, 10 N.E.2d 893. Mean-
ing not only particular time but carrying idea of
opportunity, necessity, or need, or even cause in
a limited sense, under G. L. c. 4, § 6, subd. 3.
Commonwealth v. Tsouprakakis, 267 Mass. 496,
166 N.E. 855, 856. Condition of affairs; juncture
entailing need; exigency; or juncture affording
ground or reason for something. Ridout v. State,
161 Tenn. 248, 30 S.W.2d 255, 259, 71 A.L.R. 830.
OCCASION, v. To cause or bring about by fur-
nishing the condition or opportunity for the action
of some other cause. Smart v. Raymond, Mo.App.,
142 S.W.2d 100, 104. To give occasion to, to pro-
duce; to cause incidentally or indirectly; bring
about or be the means of bringing about or produc-
ing. Industrial Commission of Ohio v. Weigandt,
102 Ohio St. 1, 130 N.E. 38, 39.
OCCASIONARI. To be charged or loaded with
payments or occasional penalties.
OCCASIONES. In old English law, assarts. Spel-
man.
OCCUPANCY. Occupancy is a mode of acquir-
ing property by which a thing which belongs to
nobody becomes the property of the person who
took possession of it with the intention of acquir-
ing a right of ownership in it. Civ. Code La. art.
3412; Goddard v. Winchell, 86 Iowa, 71, 52 N.W.
1124, 17 L.R.A. 788, 41 Am.St.Rep. 481. The taking
possession of things which before belonged to no-
body, with an intention of appropriating them to
one's own use. To constitute occupancy, there
must be a taking of a thing corporeal, belonging
to nobody, with an intention of becoming the own-
er of it; Co. Litt. 416.
Occupancy is sometimes used in the sense of occupation
or holding possession; indeed it has come to be very gen-
erally so used in this country in homestead laws, public-
land laws, and the like, Walters v. People, 21 Ill. 178;
Redfield v. R. Co., 25 Barb., N.Y., 54; Act of Cong. May
29, 1830, 4 Stat. 420; but this does not appear to be a com-
mon legal use of the term, as recognized by English au-
thorities.
There is a use of the word in public-land laws, home-
stead laws, "occupying-claimant" laws, cases of landlord
and tenant, and like connections, which seems to require
the broader sense of possession, although there is, in most
of these uses, a shade of meaning discarding any prior title
as a foundation of right. Perhaps both uses or views may
be harmonized, by saying that in jurisprudence occupancy
or occupation is possession, presented independent of the
idea of a chain of title, of any earlier owner. Or "occu-
pancy" and "occupant" might be used for assuming prop-
erty which has no owner, and "occupation" and "occu-
pier" for the more general idea of possession. Judge
Bouvier's definitions seem partly founded on such a distinc-
tion, and there are indications of it in English usage. It
does not appear generally drawn in American books. Ab-
bott.
"Possession" and "occupancy," when applied to land,
are nearly synonymous terms, and may exist through a
tenancy. Thus, occupancy of a homestead, such as will
satisfy the statute, may be by means other than that of
actual residence on the premises by the widow or child.
Walters v. People, 21 Ill. 178. Occupancy is always actual,
as distinguished from possession, which may be actual or
constructive. Occupancy is never constructive, save in the
sense that land may be occupied through the actual pos-
session of another. Davis v. State, 20 Ga.App. 68, 92 S.E.
550, 551. "Occupancy" is act of taking or holding posses-
sion and does not necessarily include residence. Korn-
hauser v. National Surety Co., 114 Ohio St. 24, 150 N.E.
921, 923.
Under fire policy, it must be such as ordinarily
pertains to purpose to which property is adapted
or devoted as described in policy. Continental Ins.
Co. of New York v. Dunning, 249 Ky. 234, 60 S.W.
2d 577.
Under burglary policy it implies an actual use
of the house as a dwelling place not absolutely con-
tinuous, but as a place of/usual return. Young v.
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Fidelity & Casualty Co. of New York, 202 Mo.App.
319, 215 S.W. 496, 498.
Under statute respecting adverse possession, the
term was synonymous with "actual possession,"
as distinguished from "constructive possession."
Hart v. All Persons, 26 Cal.App. 664, 148 P. 236,
240.
See Occupation; Occupy.
In International law. The taking possession of
a newly discovered or conquered country with the
intention of holding and ruling it.
OCCUPANT. Person having possessory rights,
who can control what goes on on premises. Unit-
ed States v. Fox, C.C.A.N.Y., 60 F.2d 685, 688.
One who takes the first possession of a thing
of which there is no owner.
One who occupies and takes possession, one who
has the actual use, possession or control of a thing.
Lechler v. Chapin, 12 Nev. 65; Wittkop v. Garner,
4 N.J.Misc. 234, 132 A. 339, 340.
In a special sense, one who takes possession of
lands held pur autre vie, after the death of the
tenant, and during the life of the cestui que vie.
Common occupant. See general occupant, be-
low.
General occupant. At common law where a
man was tenant pur autre vie, or had an estate
granted to himself only (without mentioning his
heirs) for the life of another man, and died with-
out alienation during the life of cestui que vie, or
him by whose life it was holden, he that could
first enter on the land might lawfully retain the
possession, so long as cestui que vie lived, by right
of occupancy, and was hence termed a "general"
or common "occupant." 1 Steph.Comm. 415.
Special occupant. A person having a special
right to enter upon and occupy lands granted pur
autre vie, on the death of the tenant, and during
the life of cestui que vie.
Where the grant is to a man and his heirs during the
life of cestui que vie, the heir, succeeds as special occupant,
having a special exclusive right by the terms of the orig-
inal grant. 2 Bl.Comm. 259; 1 Steph.Comm. 416.
In the United States the statute provisions of the differ-
ent states vary considerably upon this subject. In New
York and New Jersey, special occupancy is abolished.
Virginia, and probably Maryland, follow the English stat-
utes. In Massachusetts and other states, where the real
and personal estates of intestates are distributed in the
same way and manner, the question does not seem to be
material. 4 Kent 27.
OCCUPANTIS FIUNT DERELICTA. Things
abandoned become the property of the (first) oc-
cupant. Taylor v. The Cato, 1 Pet.Adm. 53, Fed.
Cas.No.13,786.
OCCUPARE. Lat. In the civil law, to seize or
take possession of; to enter upon a vacant pos-
session; to take possession before another. Cal-
vin.
OCCUPATILE. That which has been left by the
right owner, and is now possessed by another.
OCCUPATIO. "The advisedly taking possession
of that which is at the moment the property of no
man, with a view of acquiring property in it for
yourself." Maine, Anc.L. 245. The advised as-
sumption of physical possession. Id. 256. See Oc-
cupancy.
OCCUPATION. Possession. Sweet; Kinneer v.
Southwestern Mut. Fire Ass'n, 118 Pa.Super. 312,
179 A. 800. Where a person exercises physical
control over land. Lancaster • County Bank v.
Marshel, 130 Neb. 141, 264 N.W. 470, 475. Control;
tenure; use.
"Occupation" of a dwelling house means living in it.
The use for which premises are intended should be con-
sidered in determining what is meant by the word "unoc-
cupied" as contained in a policy. Hoover v. Mercanti2e
Town Mut. Ins. Co., 93 Mo.App. 111, 69 S.W. 42. As used
in a fire insurance policy the word unoccupied, is not syn-
onymous with vacant, but is that condition where no one
has the actual use or possession of the thing or property in
question, Yost v. Ins. Co., 38 Pa.Super.Ct. 594; Hardiman
v. Fire Ass'n, 212 Pa. 383, 61 A. 990.
A putting out of a man's freehold in time of war.
Co.Litt. s. 412.
Actual occupation. An open, visible occupancy
as distinguished from the constructive one which
follows the legal title. Cutting v. Patterson, 82
Minn. 375, 85 N.W. 172; People v. Ambrecht, 11
Abb.Prac., N.Y., 97; Bennett v. Burton, 44 Iowa
550.
Vocation. That which principally takes up one's
time, thought, and energies; especially, one's reg-
ular business or employment; also whatever one
follows as the means of making a livelihood. Dor-
rell v. Norida Land & Timber Co., 53 Idaho, 793,
27 P.2d 960; Texas Co. v. Amos, 77 Fla. 327, 81 So.
471, 472; Childers v. Brown, 81 Or. 1, 158 P. 166,
168, Ann.Cas.1918D, 170. Particular business, pro-
fession, trade, or calling which engages individu-
al's time and efforts, employment in which one
regularly engages or vocation of his life. Harris
v. Southern Carbon Co., La.App., 162 So. 430, 434;
Evans v. Woodman Acc. Ass'n, 171 P. 643, 644,
102 Kan. 556, L.R.A.1918D, 122; Industrial Com-
mission of Ohio v. Roth, 120 N.E. 172, 173, 98 Ohio
St. 34, 6 A.L.R. 1463.
OCCUPATION TAX. A tax imposed upon an oc-
cupation or the prosecution of a business, trade,
or profession; not a tax on property, or even the
capital employed in the business, but an excise tax
on the business itself; to be distinguished from a
"license tax," which is a fee or exaction for the
privilege of engaging in the business, not for its
prosecution. Adler v. Whitbeck, 44 Ohio St. 539,
9 N.E. 672; Appeal of Banger, 109 Pa. 95; Pull-
man Palace Car Co. y. State, 64 Tex. 274, 53 Am.
Rep. 758.
OCCUPATIONAL. Of or pertaining to an occu-
pation, trade or work. Morgan v. Equitable Life
Assur. Soc. of U. S., La.App., 22 So.2d 595, 597.
OCCUPATIONAL DISEASE. Disease gradually
contracted in usual and ordinary course of em-
ployment, because thereof, and incidental thereto.
Travelers Ins. Co. v. Lancaster, Tex.Civ.App., 71
S.W.2d 318, 319.
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ODHAL
OCCUPATIONAL DUTIES. Those of insured's
ordinary and usual occupation, and not those of
unusual, casual and temporary employment. Fed-
eral Life Ins. Co. v. Lorton, 97 Colo. 545, 51 P.2d
693, 694.
OCCUPATIVE. Pertaining to or involving occu-
pation or the right of occupation. Webster.
OCCUPAVIT. Lat. In old English law, a writ
that lay for one who was ejected out of his land
or tenement in time of war. Cowell.
OCCUPIER. An occupant; one who is in the
enjoyment of a thing.
A tenant, though absent, is, generally speaking,
the occupier of premises; 1 B. & C. 178; but not
a servant or other person who may be there virtute
officii; 26 L.J.C.P. 12; 47 L.J.Ex. 112; L.R. 1 Q.B.
72.
OCCUPY. To take or enter upon possession of;
to hold possession of; to hold or keep for use;
to possess; to tenant; to do business in. People
v. Roseberry, 23 Cal.App.2d 13, 71 P.2d 944. Ac-
tual use, possession, and cultivation. Jackson v.
Sill, 11 Johns., N.Y., 202, 6 Am.Dec. 363.
The term, under fire policy, implies use by some person
according to purpose for which it is designed, and does not
imply that some one shall remain in building all of the time
without interruption, but merely that there shall not be a
cessation of occupancy for any considerable length of time.
Washington Fire Ins. Co. v. Cobb, Tex.Civ.App., 163 S.W.
608, 612; Southern Nat. Ins. Co. v. Cobb, Tex.Civ.App.,
180 S.W. 155, 156. As used in connection with a home-
stead, it does not always require an actual occupancy, but
may sometimes permit a constructive occupancy. Kerns v.
Warden, 88 Okl. 297, 213 P. 70, 72.
See Occupation; Occupancy.
OCCUPYING CLAIMANT. An occupant claiming
right under statute to recover for improvements
he has placed on the land subsequently found not
to be his. Kelly v. Watkins, 135 Okl. 276, 276 P.
191, 192.
OCCUPYING CLAIMANT ACTS. Statutes pro-
viding for the reimbursement of a bona fide occu-
pant and claimant of land, on its recovery by the
true owner, to the extent to which lasting improve-
ments made by , him have increased the value of
the land, and generally giving him a lien therefor.
Jones v. Great Southern Hotel Co., 86 F. 370, 30
C.C.A. 108.
OCCUR. To meet one's eye; to be found or met
with; to present itself; to appear; hence, to be-
fall in due course; to happen. Grenada Bank v.
Petty, 174 Miss. 415, 164 So. 316, 318. To arise;
begin. Murphy v. People, 78 Colo. 276, 242 P. 57,
59.
OCCURRENCE. A coming or happening; any
incident or event, especially one that happens
without being designed or expected. Farmers &
Merchants Nat. Bank v. Arrington, Tex.Civ.App.,
98 S.W.2d 378, 382.
OCEAN. The main or open sea; the high sea;
that portion of the sea which does not lie within
the body of any country and is not subject to the
territorial jurisdiction or control of any country,
but is open, free, and common to the use of all na-
tions. U. S. v. Rodgers, 14 S.Ct. 109, 150 U.S. 249,
37 L.Ed. 1071; U. S. v. New Bedford Bridge, 27
Fed.Cas. 120.
OCHIERN. In old Scotch law, a name of dignity;
a freeholder. Skene's de Verb. Sign.
OCHLOCRACY. Government by the multitude.
A form of government wherein the populace has
the whole power and administration in its own
hands. The abuse of a democracy. Mob rule.
OCTAVE. In old English law, the eighth day in-
clusive after a feast; one of the return days of
writs. 3 Bl.Comm. 278.
OCTO TALES. Lat. Eight such; eight such
men; eight such jurors. The name of a writ, at
common law, which issues when upon a trial at
bar, eight more jurors are necessary to fill the
panel, commanding the sheriff to summon the
requisite number. 3 Bl.Comm. 364; Decem Tales.
OCTROI. Fr. In French law, originally, a toll
or duty, which, by the permission of the seigneur,
any city was accustomed to collect on liquors and
some other goods, brought within its precincts,
for the consumption of the inhabitants. After-
wards appropriated to the use of the king. Steph.
Lect. p. 361.
OCULIST. A duly licensed physician specializing
in the diseases of the eye. Stern v. Flynn, 154
Misc. 609, 278 N.Y.S. 598.
ODD LOT BUSINESS. The dealing in a smaller
number of shares than the unit of trading on the
floor of the stock exchange. People ex rel. Berdan
v. Goldfogle, 213 App.Div. 702, 211 N.Y.S. 107.
ODD LOT DOCTRINE. Under this doctrine, if the
effects of an accident have not been removed, it
is not sufficient, to entitle an employer to have
a reduction in the weekly compensation ordered by
the court under the Workmen's Compensation Act,
that it appears the workman has the physical ca-
pacity to do some kind of work different from
the general kind of work which he was engaged
in at the time of the accident, but it must also be
shown that the workman, either by his own efforts
or that of his employer, can actually get such
work. Olneyville Wool Combing Co. v. Di Donato,
65 R.I. 154, 13 A.2d 817. Zelinckas v. Ford Motor
Co., 294 Mich. 494, 293 N.W. 732.
ODERUNT PECCARE BONI, VIRTUTIS AMORE;
ODERUNT PECCARE MALI, FORMIDINE
PAN. Good men hate to sin through love of
virtue; bad men, through fear of punishment.
ODHAL. Complete property, as opposed to feudal
tenure. The transposition of the syllables of
"odhal" makes it "allodh," and hence, according
to Blackstone, arises the word "allod" or "allo-
dial," (q. v.). "Allodh" is thus put in contradis-
tinction to "f eeodh." Mozley & Whiteley.
ODHAL RIGHT. An allodial right.
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ODIO
ODIO ET ATIA. See De Odio et Atia.
ODIOSA ET INHONESTA NON SUNT IN LEGE
PRIESUMANDA. Odius and dishonest acts are
not presumed in law. Co. Litt. 78; Jackson v. Mil-
ler, 6 Wend. (N. Y.) 228, 231, 21 Am.Dec. 316.
ODIOSA NON PRIESUMUNTUR. Odius things
are not presumed. Burrows, Sett. Cas. 190.
ODIUM. Means hatred and dislike. In venue
statute, it implies such a general ill feeling to-
ward a party to an action as will render it un-
certain whether the cause can be tried by impar-
tial triers, free from an atmosphere impregnated
with malice or corrupting prejudices. Brow v.
Levy, 3 Ind.App. 464, 29 N.E. 417.
ODIOUS. Synonymous with infamous. Poison v.
Polson, 140 Ind. 310, 39 N.E. 498.
ECONOMICUS. L. Lat. In old English law.
The executor of a last will and testament. Cowell.
ECONOMUS. Lat. In the civil law. A manager
or administrator. Calvin.
OEDEMA. A bogging down of the kidneys, heart
and lungs because of heavy load of gas poison,
entering through the lungs and infecting the tis-
sues and organs of the whole system. Ogletree v.
Jones, 44 N.M. 567, 106 P.2d 302.
OF. A term denoting that from which anything
proceeds; indicating origin, source, descent, and
the like; as, he is of a race of kings; he is of
noble blood. Stone v. Riggs, 43 Okl. 209, 142 P.
298, 299. Associated with or connected with, usual-
ly in some causal relation, efficient, material, form-
al, or final. Harlan v. Industrial Accident Com-
mission, 194 Cal. 352, 228 P. 654, 657.
The word has been held equivalent to after,
10 L.J.Q.B. 10; at, or belonging to, Davis v. State,
38 Ohio St. 506; in possession of, Bell County v.
Hines, Tex.Civ.App., 219 S.W. 556, 557; Stokes v.
Great Southern Lumber Co., D.C.Miss., 21 F.2d
185, 186; manufactured by, 2 Bing. N.C. 668; by,
Hannum v. Kingsley, 107 Mass. 355; residing at,
Porter v. Miller, 3 Wend. (N.Y.) 329; 8 A. & E.
232; from, State v. Wong Fong, 75 Mont. 81, 241
P. 1072, 1074; in, Kellogg v. Ford, 70 Or. 213, 139
P. 751, 752.
OF COUNSEL. A phrase commonly applied in
practice to the counsel employed by a party in a
cause, and particularly to one employed to assist
in the preparation or management of a cause, or
its presentation on appeal, but who is not the prin-
cipal attorney of record for the party.
OF COURSE. As a matter of right. Stoddard
v. Treadwell, 29 Cal. 281; Jones v. McGonigle, 327
Mo. 457, 37 S.W.2d 892, 74 A.L.R. 550. Any action
or step taken in the course of judicial proceedings
which will be allowed by the court upon mere ap-
plication, without any inquiry or contest, or which
may be effectually taken without even applying
to the court for leave. Merchants' Bank of St.
Joseph v. Crysler, C.C.A.Mo., 67 F. 390, 14 C.C.A
444; Petit v. Petit, 45 Misc. 155, 91 N.Y.S. 979.
OF FORCE. In force; extant; not obsolete;
existing as a binding or obligatory power.
OF GRACE. This phrase had its origin in an age
when kings dispensed their royal favors at the
hands of chancellors, but has no rightful place in
American jurisprudence. Sullivan v. Jones &
Laughlin Steel Co., 208 Pa. 540, 57 A. 1065, 66 L.R.
A. 712. A term applied to any permission or li-
cense granted to a party in the course of a judi-
cial proceeding which is not claimable as a matter
of course or of right, but is allowed by the favor
or indulgence of the court. See Walters v. McEl-
roy, 151 Pa. 549, 25 A. 125.
OF NEW. A Scotch expression, closely translated
from the Latin "de novo," (q. v.).
OF RECORD. Recorded; entered on the records;
existing and remaining in or upon the appropriate
records.
A mortgage to be "of record" must be recorded in the
county in which it is properly and legally .recordable for
purpose of constructive notice. Riley v. Commonwealth,
275 Ky. 370, 121 S.W.2d 921.
Under statute providing that recognizances shall be "of
record", the term means of record in the sense that it is
taken by inferior tribunals-that they have been taken and
certified to the clerk of the court of record and by him
recorded. King v. State, 18 Neb. 375, 25 N.W. 519.
OF RIGHT. As a matter of course. Atkins v.
Garrett, D.C.La., 252 F. 280, 282. See "Of Course."
OF THE BLOOD. A technical legal phrase mean-
ing to be descended from the person referred to
or from the same common stock and from a com-
mon ancestor. In re Easter's Estate, 24 Cal.2d
191, 148 P.2d 601.
OFFA EXECRATA. In old English law. The
morsel of execration; the corsned, (q. v.). 1
Reeve, Eng. Law, 21.
OFFENDER. Commonly used in statutes to indi-
cate person implicated in the commission of a
crime and includes person guilty of a misde-
meanor. State ex rel. Smith v. Jameson, 70 S.D.
503, 19 N.W.2d 505, 508.
OFFENSE. A crime or misdemeanor; a breach
of the criminal laws. People v. Brenta, 64 Cal.
App. 91, 220 P. 447; State v. Hirsch, 91 Vt. 330, 100
A. 877, 879; Ex parte Brady, 116 Ohio St. 512, 157
N.E. 69, 70. State v. Johnson, 212 N.C. 566, 194
S.E. 319, 322.
It is used as a genus, comprehending every
crime and misdemeanor, or as a species, signify-
ing a crime not indictable, but punishable sum-
marily or by the forfeiture of a penalty. In re
Terry, C.C.Cal., 37 F. 649.
The word "offense," while sometimes used in various
senses, generally implies a crime or a misdemeanor in-
fringing public as distinguished from mere private rights,
and punishable under the criminal laws, though it may
also include the violation of a criminal statute for which
the remedy is merely a civil suit to recover the penalty.
Commonwealth v. Brown, 264 Pa. 85, 107 A. 676, 678.
Under a statute, declaring that one guilty of an offense•
or fault causing another damage is obliged to repair it,
"offense or fault" has the same meaning as "tort" ; Pana-
ma R. Co. v. Rock, C.C.A.Canal Zone, 272 F. 649, 651; and.
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a criminal contempt has been held to be an "offense."
Creekmore v. U. S., C.C.A.Okl., 237 F. 743, 754, L.R.A.
1917C, 845; Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332,
335, 69 L. Ed. 527, 38 A.L.R. 131.
Continuing offense. A transaction or a series
of acts set on foot by a single impulse, and op-
erated by an unintermittent force, no matter how
long a time it may occupy. State v. Brown, 10
Okl.Cr. 52, 133 P. 1143, 1144; Ex parte Dunn, 33
Okl.Cr. 190, 242 P. 574.
Criminal offense. Includes misdemeanors as
well as felonies. People v. Scalisi, 324 Ill. 131, 154
N.E. 715, 721. It is an offense which subjects the
offender to indictment. Latimer v. Wilson, 103 N.
J.L. 159, 134 A. 750, 751.
Quasi offense. One which is imputed to the per-
son who is responsible for its injurious conse-
quences, not because he himself committed it, but
because the perpetrator of it is presumed to have
acted under his commands.
Same offense. As used in a provision against
double jeopardy, the term means the same crime,
not the same transaction, acts, circumstances, or
situation. State v. Billotto, 104 Ohio St. 13, 135
N.E. 285, 287; U. S. v. Bostow, D.C.Ala., 273 F. 535,
538.
Second offense. One committed after conviction
for a first offense. Hoist v. Owen, C.C.A.Fla., 24 F.
2d 100. See State v. Snyder, 30 N.M. 40, 227 P.
613, 618; Meyers v. State, 193 Wis. 126, 213 N.W.
645, 646; Staniforth v. State, 24 Ohio App. 208,
156 N.E. 924.
It is the previous conviction, and not the indict-
ment, which is the basis of the charge of a second
offense. People v. Boardman, 172 App.Div. 733, 159
N.Y.S. 577.
OFFENSIVE. In the law relating to nuisances
and similar matters, this term means noxious,
causing annoyance, discomfort, or painful or disa-
greeable sensations. In ordinary use, the term
is synonymous with "obnoxious" and means ob-
jectionable, disagreeable, displeasing and distaste-
ful. Moller v. Presbyterian Hospital, 65 App.Div.
134, 72 N.Y.S. 483; City of Muskogee v. Morton,
128 Old. 17, 261 P. 183, 184.
Oei ck_INSIVE AND DEFENSIVE LEAGUE. In
international law. A league binding the contract.
ing powers not only to aid each other in case of
aggression upon either of them by a third power,
but also to support and aid each other in active
and aggressive measures against a power with
which either of them may engage in war.
Ot .14 ENSIVE LANGUAGE. Language adapted to
give offense; displeasing or annoying language.
People v. Whitman (Co. Ct.) 157 N.Y.S. 1107, 1109.
014/4 ENSIVE WEAPON. As occasionally used in
criminal law and statutes, a weapon primarily
meant and adapted for attack and the infliction of
injury, but practically the term includes anything
that would come within the description of a "dead-
ly" or "dangerous" weapon. State v. Dineen, 10
OFFERTORIUM
Minn. 411 (Gil. 325) ; Rex v. Grice, 7 Car. & P. 803;
Rex v. Noakes, 5 Car. & P. 326. Pistol has been
held to be "offensive weapon" within statute pun-
ishing assault with intent to rob. Reed v. Com-
monwealth, 281 Ky. 189, 135 S.W.2d 867, 870, 872.
OFFER, v. To bring to or before; to present for
acceptance or rejection; to hold out or proffer;
to make a proposal to; to exhibit something that
may be taken or received or not. Morrison v.
Springer, 15 Iowa 346; People v. Ah Fook, 62 Cal.
494.
To attempt or endeavor; to make an .effort to
effect some object, as, to offer to bribe; in this
sense used principally in criminal law. State v.
Armijo, 19 N.M. 345, 142 P. 1126, 1127.
In trial practice, to "offer" evidence is to state its nature
and purport, or to recite what is expected to be proved by
a given witness or document, and demand its admission.
Unless under exceptional circumstances, the term is not
to be taken as equivalent to "introduce." Harris v. Tom-
linson, 130 Ind. 426, 30 N.E. 214.
The word "offer," as used in a statute providing that the
buyer, to rescind a sale, must offer within a reasonable
time to return the goods, is synonymous with the word
"tender." Collins v. Skillings, 224 Mass. 275, 112 N.E. 938.
939, Ann.Cas.1918D, 424.
OFFER, n. A proposal; a proposal to do a thing.
An attempt; endeavor. Webster.
An offer of evidence. See the verb "offer,"
supra.
An act on the part of one person whereby he
gives to another the legal power of creating the
obligation called contract. In re Larney's Estate,
148 Misc. 871, 266 N.Y.S. 564.
An offer, as an element of a contract, is a proposal to
make a contract. It must be made by the person who is
to make the promise, and it must be made to the person
to whom the promise is made. It may be made either by
words or by signs, either orally or in writing, and either
personally or by a messenger; but in whatever way it is
made, it is not in law an offer until it comes to the knowl-
edge of the person to whom it is made; Langd.Contr.
151; 6 H.L.Cas. 112. See Sunburst Oil & Gas Co, v. Ne-
ville, 79 Mont. 550, 257 P. 1016, 1019.
An "offer" must be so definite in its terms, or require
such definite terms in acceptance, that the promises and
performances to be rendered by each party are reasonably
certain. Wadge v. Crestwood Acres, 128 N.J.L. 551, 27
A.2d 148, 150.
An "offer to sell" merely contemplates the proffer, pro-
posal, presentation, or exhibition of something to another-
for acceptance or rejection. Frissell v. Nichols, 94 Fla. 403,
114 So. 431, 433.
OFFER OF COMPROMISE. An offer to settle a
dispute or difference amicably for the purpose of
avoiding a lawsuit and without admitting liability.
Freeman v. Vandruff, 126 Okl. 238, 259 P. 257, 259.
OFFERINGS. In English ecclesiastical law. Per-
sonal tithes, payable by custom to the parson or
vicar of a parish, either occasionally, as at sacra-
ments, marriages, churching of women, burials,
etc., or at constant times, as at Easter, Christmas,
etc. See Obventio.
01+ ERTORIUM. In English ecclesiastical law.
The offerings of the faithful, or the place where
they are made or kept; the service at the time of
the Communion.
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OFFICE
OFFICE. Right to exercise public or private em-
ployment, and to take the fees and emoluments
thereunto belonging, whether public, as those of
magistrates, or private, as of bailiffs, receivers, or
the like. 2 Bl.Comm. 36. Blair v. Marye, 80 Va.
495; Worthy v. Barrett, 63 N.C. 202; Shelf. Mortm.
797; Cruise, Dig. Index; Com. v. Sutherland, 3
S. & R., Pa., 149. A right, and correspondent duty,
to exercise a public trust. Whitehead v. Clark, 146
Tenn. 660, 244 S.W. 479, 482. A public charge or
employment; U. S. v. Maurice, 2 Brock. 102, Fed.
Cas. No. 15,747, per Marshall, C. J.; Lamar v.
Splain, 42 App.D.C. 300, 305. An employment on
behalf of the government in any station or pub-
lic trust, not merely transient, occasional, or in-
cidental. See Eason v. Majors, 111 Neb. 288, 196
N.W. 133, 134, 30 A.L.R. 1419.
An "assigned duty" or "function." Synonyms are
"post", "appointment", "situation", "place", "position",
and "office" commonly suggests a position of (especially
public) trust or authority. Also right to exercise a public
function or employment, and to take the fees and emolu-
ments belonging to it. Frazier v. Elmore, 180 Tenn. 232,
173 S.W.2d 563, 565. A public charge or employment, and
he who performs the duties of the office is an officer. Al-
though an office is an employment, it does not follow that
every employment is an office. A man may be employed
under a contract, express or implied, to do an act, or to
perform a service, without becoming an officer. But, if the
duty be a continuing one, which is defined by rule pre-
scribed by the government, which an individual is appoint-
ed by the government to perform, who enters upon the
duties appertaining to his status, without any contract de-
fining them, it seems very difficult to distinguish such a
charge or employment from an office, or the person who
performs the duty from an officer. Lacy v. State, 13 Ala.
App. 212, 68 So. 706, 710. In the constitutional sense, the
term implies an authority to exercise some portion of the
sovereign power, either in making, executing, or adminis-
tering the laws. State v. Christmas, 126 Miss. 358, 88 So.
881, 882.
The most frequent occasions to use the word
arise with reference to a duty and power conferred
on an individual by the government; and, when
this is the connection, "public office" is a usual
and more discriminating expression. But a power
and duty may exist without immediate grant from
government, and may be properly called an "of-
fice;" as the office of executor, the office of ste-
ward. Here the individual acts towards legatees
or towards tenants in performance of a duty, and
in exercise of a power not derived from their con-
sent, but devolved on him by an authority which
quoad hoc is superior. Abbott.
A place for the regular transaction of business.
Bradley v. Certigue Mining & Dredging Co., 157
N.Y.S. 275, 276, 93 Misc. 519. For the word "office"
as used of a place for transacting public business,
see Corn. v. White, 6 Cush., Mass., 181.
"Office" is frequently used in the old books as
an abbreviation for "inquest of office," (q. v.).
As to various particular offices, see Land Office,
Petty Bag Office, Post Office, etc.
Civil office. Distinguished from military. Wal-
do v. Wallace, 12 Ind. 569.
County office. As used in a primary election
law, an office filled by the electorate of the entire
county. Hamilton v. Monroe, Tex.Civ.App., 287 S.
W. 304, 306,
District office. As used in a primary election
law, an office filled by the electorate of a district.
Hamilton v. Monroe, Tex.Civ.App., 287 S.W. 304,
306.
Judicial office. See Judicial.
Lucrative office. See Lucrative.
Military office. Such as are held by soldiers and
sailors for military purposes.
Ministerial office. One . which gives the officer
no discretion as to the matter to be done, and re-
quires him to obey mandates of a superior. Vose
v. Deane, 7 Mass. 280; Savacool v. Boughton, 5
Wend., N.Y., 170, 21 Am.Dec. 181; Waldo v. Wal-
lace, 12 Ind. 569. It is a general rule that a judi-
cial office cannot be exercised by deputy, while a
ministerial office may.
Office book. Any book for the record of official
or other transactions, kept under authority of the
state, in public offices not connected with the
courts.
Office copy. A copy or transcript of a deed or
record or any filed document, made by the officer
having it in custody or under his sanction, and by
him sealed or certified.
A copy made by an officer of the court, bound by law to
make it, is equivalent to an exemplification, though it is
sometimes called an "office copy"; Steph.Dig.Ev. art. 77.
Copies of public records„ whether judicial or otherwise,
made by a public officer authorized by law, to make them,
are often termed "office copies," e. g. copies of recorded
deeds; Elwell v. Cunningham, 74 Me. 127. A copy made
by an officer of the court, who is authorized to make it by
a rule of court, but not required by law to make it, is
equivalent to an exemplification in the same cause and
court, but in other causes or courts is not admissible un-
less it can be proved as an examined copy; Steph.Dig.Ev.
art. 78.  These are called "office copies"; Kellogg v.
Kellogg, 6 Barb. (N.Y.) 130.
Office found. In English law. Inquest of office
found; the finding of certain facts by a jury on
an inquest or inquisition of office. 3 Bl.Comm.
258, 259. This phrase has been adopted in Ameri-
can law. 2 Kent, Comm. 61. See Phillips v.
Moore, 100 U.S. 212, 25 L.Ed. 603; Finch v. Gold-
stein, 245 N.Y. 300, 157 N.E. 146, 147.
Office grant. A designation of a conveyance
made by some officer of the law to effect certain
purposes, where the owner is either unwilling or
unable to execute the requisite deeds to pass the
title; such, for example, as a tax-deed. 3 Washb.
Real Prop. *537.
Office hours. That portion of the day during
which public offices are usually open for the trans-
action of business.
Officer of honor. See Honor.
Office of judge. A criminal suit in an eccles-
iastical court, not being directed to the reparation
of a private injury, is regarded as a proceeding
emanating from the office of the judge, and may
be instituted by the mere motion of the judge.
But, in practice, these suits are instituted by pri-
vate individuals, with the permission of the judge
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OFFICER
or his surrogate; and the private prosecutor in
any such case is, accordingly, said to "promote the
office of the judge." Mozley & Whiteley.
Political office. Civil offices are usually divided
into three classes,-political, judicial, and minis-
terial. Political offices are such as are not imme-
diately connected with the administration of jus-
tice, or with the execution of the mandates of a
superior, such as the president or the head of a
department. Fitzpatrick v. U. S., 7 Ct.C1. 293.
Principal office. The principal office of a cor-
poration is its headquarters, or the place where
the chief or principal affairs and business of the
corporation are transacted. Usually it is the of-
fice where the company's books are kept, where
its meetings of stockholders are held, and where
the directors, trustees, or managers assemble to
discuss and transact the important general busi-
ness of the company; but no one of these circum-
stances is a controlling test. See Jossey v. Geor-
gia & A. Ry., 102 Ga. 706, 28 S.E. 273; Middletown
Ferry Co. v. Middletown, 40 Conn. 69; In re Lone
Star Shipbuilding Co., C.C.A.N.Y., 6 F.2d 192, 196.
Synonymous with "principal place of business,"
being the place where the principal affairs of a
corporation are transacted. Foreman & Clark
Mfg. Co. v. Bartle, 125 Misc.Rep. 759, 211 N.Y.S.
602, 604.
Public office. The right, authority, and duty
created and conferred by law, by which for a
given period, either fixed by law or enduring at
the pleasure of the creating power, an individual
is invested with some portion of the sovereign
functions of government for the benefit of the
public. Walker v. Rich, 79 Cal.App. 139, 249 P. 56,
58. An agency for the state, the duties of which
involve in their performance the exercise of some
portion of the sovereign power, either great or
small. Yaselli v. Goff, C.C.A., 12 F.2d 396, 403, 56
A.L.R. 1239; Lacey v. State, 13 Ala.App. 212, 68
So. 706, 710; Curtin v. State, 61 Cal.App. 377, 214
P. 1030, 1035; Shelmadine v. City of Elkhart, 75
Ind.App. 493, 129 N.E. 878. State ex rel. Colorado
River Commission v. Frohmiller, 46 Ariz. 413, 52
P.2d 483, 486.
Where, by virtue of law, a person is clothed, not as an
incidental or transient authority, but for such time as de-
notes duration and continuance, with independent power to
control the property of the public, or with public functions
to be exercised in the supposed interest of the people, the
service to be compensated by a stated yearly salary, and
the occupant having a designation or title, the position so
created is a public office. State v. Brennan, 49 Ohio St.
33, 29 N.E. 593.
State office. This term as used in a primary
election law, means offices to be filled by the elec-
torate of the entire state. Hamilton v. Monroe,
Tex.Civ.App., 287 S.W. 304, 306.
OFFICER. The incumbent of an office; one who
is lawfully invested with an office. Evans v. Beat-
tie, 137 S.C. 496, 135 S.E. 538, 554; State v. Brat-
ton, 148 Tenn. 174, 253 S.W. 705, 706. One who
is charged by a superior power (and particularly
by government) with the power and duty of exer-
cising certain functions.
One who is invested with some portion of the functions of
the government to be exercised for the public benefit. Fox
v. Lantrip, 162 Ky. 178, 172 S.W. 133, 136; In a popular
sense, an officer is one holding a position of trust and au-
thority in any kind of an organization-civil, military, polit-
ical, ecclesiastical, or social. Illinois Commerce Commis-
sion v. Cleveland, C., C. & St. L. Ry. Co., 320 Ill. 214, 150
N.E. 678, 682. The word "officer," as used in state statutes
or constitutions, is sometimes held to refer only to elective
officers; Cunningham v. Rockwood, 222 Mass. 574, 111 N.
E. 409, 411, Ann.Cas.1917C, 1100; and sometimes to both
appointive and elective officers; State v. Campbell, 94 Ohio
St. 403, 115 N.E. 29, 31.
An "officer" is distinguished from an "employee" in the
greater importance, dignity, and independence of his posi-
tion, in requirement of oath, bond, more enduring tenure,
and fact of duties being prescribed by law. Bowden v.
Cumberland County, 123 Me. 359, 123 A. 166, 169; McClen-
don v. Board of Health of City of Hot Springs, 141 Ark.
114, 216 S.W. 289, 290; Jefferson County v. Case, 244 Ala.
56, 12 So.2d 343, 346.
In determining whether one is an "officer" or "em-
ployee," important tests are the tenure by which a position
is held, whether its duration is defined by the statute or
ordinance creating it, or whether it is temporary or
transient or for a time fixed only by agreement; whether
it is created by an appointment or election, or merely by
a contract of employment by which the rights of the par-
ties are regulated; whether the compensation is by a salary
or fees fixed by law, or by a sum agreed upon by the con-
tract of hiring. Hyde v. Board of Com'rs of Wells Coun-
ty, 209 Ind. 245, 198 N.E. 333, 337.
For obstructing an officer, see that title.
For definitions of the various classes and kinds
of officers, see the titles "Commissioned Officers,"
"Executive," "Fiscal," "Judicial," "Legislative,"
"Ministerial," "Municipal," "Naval," "Non-Com-
missioned," "Peace," "State," and "Subordinate".
Civil officer. The word "civil," as regards civil
officers, is commonly used to distinguish those
officers who are in public service but not of the
military. U. S. v. American Brewing Co., D.C.Pa.,
296 F. 772, 776; State v. Clarke, 21 Nev. 333, 31
P. 545, 18 L.R.A. 313, 37 Am.St.Rep. 517. Hence,
any officer of the United States who holds his
appointment under the national government,
whether his duties are executive or judicial, in the
highest or the lowest departments of the govern-
ment, with the exception of officers of the army
and navy, is a "civil officer." 1 Story, Const. § 792.
See, also, Com'rs v. Goldsborough, 90 Md. 193, 44
A. 1055.
Military officer. Officer who has command in
the army. Non-commissioned officer is not officer
in the sense in which that word is generally used;
Babbitt v. U. S., 16 Ct.C1. 214.
Officer de facto. As distinguished from an offi-
cer de jure; this is the designation of one who is
in the actual possession and administration of the
office, under some colorable or apparent authority,
although his title to the same, whether by election
or appointment, is in reality invalid or at least
formally questioned. Norton v. Shelby County,
6 S.Ct. 1121, 118 U.S. 425, 30 L.Ed. 78; State v.
Carroll, 38 Conn. 449, 9 Am.Rep. 409. One who
has the reputation of being the officer he assumes
to be, and yet is not a good officer in point of law.
6 East 368; City of Terre Haute v. Burns, 69 Ind.
App. 7, 116 N.E. 604, 608; Johnson v. State, 27 Ga.
App. 679, 109 S.E. 526, 527,
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OFFICER
Official acts of officer de facto are binding on others.
McNatt v. State, 130 Tex.Cr.R. 42, 91 S.W.2d 1068, 1069.
A de facto officer is also distinguished from a "usurp-
er" who has neither lawful title nor color of right. Smith
v. City of Jefferson, 75 Or. 179, 146 P. 809, 812.
To constitute an officer de facto it is not a necessary pre-
requisite that there shall have been an attempted exercise
of competent prima facie power of appointment or elec-
tion; a de facto officer being one whose title is not good
in law, but who is in fact In the unobstructed possession
of an office and is discharging its duties in full view of the
public, in such manner and under such circumstances as
not to present the appearance of being an intruder or
usurper. U. S. v. Royer, 45 S.Ct. 519, 520, 268 U.S. 394, 69
L.Ed. 1011. A person is a "de facto officer" where the du-
ties of the officer are exercised-First, without a known ap-
pointment or election, but under such circumstances of
reputation or acquiescence as were calculated to induce
people, without inquiry, to submit to or invoke his action,
supposing him to be the officer he assumed to be. Second,
under color of a known and valid appointment or election,
but where the officer has failed to conform to some pre-
cedent requirement or condition, as to take an oath, give
a bond, or the like. Third, under color of a known elec-
tion or appointment, void because the officer was not
eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect
or irregularity in its exercise, such ineligibility, want of
power, or defect being unknown to the public. Fourth,
under color of an election or appointment by or pursuant
to a public unconstitutional law, before the same is ad-
judged to be such. Wendt v. Berry, 154 Ky. 586, 157 S.W.
1115, 1118, 45 L.R.A.,N.S., 1101, Ann.Cas.1915C, 493.
Officer de jure. One who is in all respects legal-
ly appointed and qualified to exercise the office.
People v. Brautigan, 310 Ill. 472, 142 N.E. 208, 211.
Officer of justice. A general name applicable
to all persons connected with the administration
of the judicial department of government, but com-
monly used only of the class of officers whose
duty is to serve the process of the courts, such as
sheriffs, constables, bailiffs, marshals, sequestra-
tors, etc.
Officer of United States. An officer nominated
by the president and confirmed by the senate or
one who is appointed under an act of congress, by
the president alone, a court of law, or a head of a
department. U. S. v. Germaine, 99 U.S. 508, 25 L.
Ed. 482; see U. S. v. Mouat, 8 S.Ct. 505, 124 U.S.
303, 31 L.Ed. 463.
Public officer. An officer of a public corpora-
tion; that is, one holding office under the govern-
ment of a municipality, state, or nation. One oc-
cupying a public office created by law. Shanks v.
Howes, 214 Ky. 613, 283 S.W. 966, 967; Schmitt v.
Dooling, 145 Ky. 240, 140 S.W. 197, 36 L.R.A.,N.S.,
881, Ann.Cas.1913B, 1078. One of necessary char-
acteristics of "public officer" is that he perform
public function for public benefit and in so doing
he be vested with exercise of some sovereign pow-
er of state. Leymel v. Johnson, 105 Cal.App. 694,
288 P. 858, 860.
In English law. An officer appointed by a joint-
stock banking company, under the statutes regu-
lating such companies, to prosecute and defend
suits in its behalf.
Warrant officer. One who holds as evidence of
right a warrant signed by the Secretary of War
or of the Navy. Stephens v. Civil Service Com-
mission of New Jersey, 101 N.J.L. 192, 127 A. 808,
811,
OFFICIA JUDICIALIA NON CONCEDANTUR
ANTEQUAM VACENT. Judicial offices should not
be granted before they are vacant. 11 Coke, 4.
OFFICIA MAGISTRATUS NON DEBENT ESSE
VENALIA. The offices of magistrates ought not
to be sold. Co. Litt. 234.
OFFICIAL, n. An officer; a person invested with
the authority of an office.
In Canon law. A person to whom a bishop com-
mits the charge of his spiritual jurisdiction.
In Civil law. The minister or apparitor of a
magistrate or judge.
In Common and Statute law. The person whom
the archdeacon substitutes in the execution of his
jurisdiction. Cowell.
OFFICIAL, adj. Pertaining to an office; invested
with the character of an officer; proceeding from,
sanctioned by, or done by, an officer. Cohn v. U.
S., 169 C.C.A. 371, 258 F. 355, 358.
As to official "Bonds," "Liquidator," "Log-Book,"
"Newspaper," "Oath," and "Use," see those titles.
Demi-official.  Partly official or authorized.
Having color of official right.
Official act. One done by an officer in his offi-
cial capacity under color and by virtue of his of-
fice. Lammon v. Feusire, 4 S.Ct. 286, 111 U.S. 17,
28 L.Ed. 337; Meek v. Tilghman, 55 Okl. 208, 154
P. 1190, 1191; Miles v. Wright, 22 Ariz. 73, 194 P.
88, 91, 12 A.L.R. 970. Weidler v. Arizona Power
Co., 39 Ariz. 390, 7 P.2d 241, 243.
Official assignee. In English practice. An as-
signee in bankruptcy appointed by the lord chan-
cellor to co-operate with the other assignees in ad-
ministering a bankrupt's estate.
Official managers. Persons formerly appointed,
under English statutes now repealed, to superin-
tend the winding up of insolvent companies under
the control of the court of chancery. Wharton.
Official misconduct. Any unlawful behavior by
a public officer in relation to the duties of his of-
fice, willful in its character, including any willful
or corrupt failure, refusal, or neglect of an of-
ficer to perform any duty enjoined on him by law.
Kesling v. Moore, 102 W.Va. 251, 135 S.E. 246, 248;
State on Inf. of Barker v. Crandall, 269 Mo. 44,
190 S.W. 889, 892; Bolton v. State, 69 Tex.Cr.R.
582, 154 S.W. 1197.
Official principal. An ecclesiastical officer whose
duty it is to hear causes between party and party
as the delegate of the bishop or archbishop by
whom he is appointed. He generally also holds
the office of vicar general and (if appointed by a
bishop) that of chancellor. The official principal
of the province of Canterbury is called the "dean
of arches." Phillim. Ecc. Law, 1203, et seq.;
Sweet.
Official solicitor to the court of chancery. An
officer in England whose functions are to protect
the suitors' fund, and to administer, under the di-
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OLOGRAPHIC
rection of the court, so much of it as now comes
under the spending power of the court. He acts
for persons suing or defending in forma pauperis,
when so directed by the judge, and for those who,
through ignorance or forgetfulness, have been
guilty of contempt of court by not obeying piocess.
He also acts generally as solicitor in all cases in
which the chancery division requires such services.
The office is transferred to the high court by the
judicature acts, but no alteration in its name ap-
pears to have been made. Sweet.
Official trustee of charity lands. The secretary
of the English charity commissioners. He is a
corporation sole for the purpose of taking and
holding real property and leaseholds upon trust
for an endowed charity in cases where it appears
to the court desirable to vest them in him. He is
a bare trustee, the possession and management of
the land remaining in the persons acting in the
administration of the charity. Sweet.
OFFICIALTY. The court or jurisdiction of which
an official is head.
OFFICIARIIS NON FACIENDIS VEL AMOVEN-
DIS. A writ addressed to the magistrates of a
corporation, requiring 'them not to make such a
man an officer, or to put one out of the office he
has, until inquiry is made of his manners, etc.
Reg. Orig. 126.
OFFICINA JUSTITLIE. The workshop or office
of justice. The chancery was formerly so called.
3 Bl.Comm. 273; Yates v. People, 6 Johns. (N. Y.)
363.
OFFICIO, EX, OATH. An oath whereby a person
may be obliged to make any presentment of any
crime or offense, or to confess or accuse himself
of any criminal matter or thing whereby he may
be liable to any censure, penalty, or punishment.
3 Bl.Comm. 447.
OFFICIOUS WILL. A testament by which a tes-
tator leaves his property to his family. Sandars,
Just. Inst. 207; Inofficious Testament.
OFFICIT CONATUS SI Ei 4 hCTUS SEQUATUR.
The attempt becomes of consequence, if the effect
follows. Jenk. Cent. 55.
OFFICiUM NEMINI DEBET ESSE DAMNOSUM.
Office ought not to be an occasion of loss to any
one. A maxim in Scotch law. Bell.
OIR. In Spanish law. To hear; to take cogniz-
ance. White, New Recop. b. 3, tit. 1, c. 7.
OKAY. The colloquial expression means correct,
all right, to approve, and is of such common usage
that it immediately conveys to the mind of person
to whom it is addressed that a proposition sub-
mitted is agreed to. Muegler v. Crosthwait, 239
Mo.App. 801, 179 S.W.2d 761, 763. See, also, 0. K.
OKER. In Scotch law. Usury; the taking of in-
terest for money, contrary to law. Bell.
OLD NATURA BREVIUM. The title of a treatise
written in the reign of Edward III., containing the
writs which were then most in use, annexing to
each a short comment concerning their nature and
the application of them, with their various prop-
erties and effects. 3 Reeve, Eng. Law, 152.
OLD STYLE. The ancient calendar or method of
reckoning time, whereby the year commenced on
March 25th. It was superseded by the new style
(that now in use) in most countries' of Europe in
1582 and in England in 1752.
OLD TENURES. A treatise, so called to distin-
guish it from Littleton's book on the same sub-
ject, which gives an account of the various tenures
by which land was holden, the nature of estates,
and some other incidents to landed property in
the reign of Edward III. It is a very scanty tract,
but has the merit of having led the way to Little-
ton's famous work. 3 Reeve, Eng. Law, 151.
OLEOMARGARINE. An artificial imitation of
butter, made chiefly from animal fats. Its sale is
prohibited or restricted by statute in several of
the states. Powell v. Pennsylvania, 8 S.Ct. 992.
127 U.S. 678, 32 L.Ed. 253.
OLERON, LAWS OF. A code of maritime laws
published at the island of Oleron in the twelfth
century by Eleanor of Guienne. They were adopt-
ed in England successively under Richard I., Henry
III., and Edward III. and are often cited before
the admiralty courts.
OLIGARCHY. A form of government wherein
the administration of affairs is lodged in the hands
of a few persons.
OLIGOPOLY. Economic climate existing where
a few sellers sell only a standardized product.
U. S. v. E. I. DuPont de Nemours & Co., D.C.Del.,
118 F.Supp. 41, 49.
OFFSPRING. This term is synonymous with
"issue." Barber v. Railroad Co., 17 S.Ct. 488, 166
U.S. 83, 41 L.Ed. 925; Powell v. Brandon, 2 Cushm.
(Miss.) 343.
OIKEI MANIA. See Insanity.
OFFSET. A deduction; a counterclaim; a con-
trary claim or demand by which a given claim
may be lessened or canceled. Leonard v. Charter
Oak L. Ins. Co., 65 Conn. 529, 33 A. 511; Cable
Flax Mills v. Early, 72 App.Div. 213, 76 N.Y.S. 191.
The more usual form of the word is "set-off," (q.
v.).
OLOGRAPH. An instrument (e. g., a will) wholly
written by the person from whom it emanates.
Lovskog v. American Nat. Red Cross, C.C.A.Alas-
ka, 111 F.2d 88, 91.
OLOGRAPHIC TESTAMENT. The olographic
testament is that which is written by the testator
himself. In order to be valid it must be entirely
written, dated, and signed by the hand of the testa-
tor. It is subject to no other form, and ma y  be
made anywhere, even out of the state. Civil Code
La. art. 1588. Succession of Butterworth, 195 La.
115, 196 So. 39, 41.
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OLYMPIAD
OLYMPIAD. A Grecian epoch; the space of four
years.
OMBUDSMAN CONCEPT. A citizen aggrieved by
an official's action or inaction should be able to
state his grievance to an influential functionary
empowered to investigate and to express conclu-
sions.
OME BUENO. In Spanish law. A good man; a
substantial person. Las Partidas, pt. 5, tit. 13, 1.
38.
OMISSIO EORUM QU1E TACITE INSUNT NIHIL
OPERATUR. The omission of those things which
are tacitly implied is of no consequence. 2 Bulst.
131.
OMISSION. The neglect to perform what the law
requires. People v. Hughey, 382 Ill. 136, 47 N.E.
2d 77, 80.
OMISSIS OMNIBUS ALIIS NEGOTIIS. Lat.
Laying aside all other businesses. 9 East, 347.
OMITTANCE. Forbearance; omission.
OMNE ACTUM AB INTENTIONE AGENTIS EST
JUDICANDUM. Every act is to be judged by the
intention of the doer. Branch, Princ.
OMNE CRIMEN EBRIETAS ET INCENDIT ET
DETEGIT. Drunkenness both inflames (or aggra-
vates) and reveals every crime. Co. Litt. 247a;
4 Bl.Comm. 26; Broom, Max. 17.
OMNE JUS AUT CONSENSUS FECIT, AUT NEC-
ESSITAS CONSTITUIT AUT FIRMAVIT CON-
SUETUDO. Every right is either made by con-
sent, or is constituted by necessity, or is establish-
ed by custom. Dig. 1, 3, 40.
OMNE MAGIS DIGNUM TRAHIT AD SE MINUS
DIGNUM, QUAMVIS MINUS DIGNUM SIT AN-
TIQUIUS. Every worthier thing draws to it the
less worthy, though the less worthy be the more
ancient. Co. Litt. 355b.
OMNE MAGNUM EXEMPLUM HABET ALIQUID
EX INIQUO, QUOD PUBLICA UTILITATE COM-
PENSATUR. Hob. 279. Every great example has
some portion of evil, which is compensated by the
public utility.
OMNE MAJUS CONTINET IN SE MINUS. Every
greater contains in itself the less. 5 Coke, 115a.
The greater always , contains the less. Broom,
Max. 174.
OMNE MAJUS DIGNUM CONTINET IN SE MI-
NUS DIGNUM. Co. Litt. 43. The more worthy
contains in itself the less worthy.
OMNE MAJUS MINUS IN SE COMPLECTITUR.
Every greater embraces in itself the less. Jenk.
Cent. 208.
OMNE PRINCIPALE TRAHIT AD SE ACCES-
SORIUM. Every principal thing draws to itself
the accessory. Parsons v. Welles, 17 Mass. 425;
Green v. Hart, 1 Johns. (N.Y.) 580.
OMNE SACRAMENTUM DEBET ESSE DE CER-
TA SCIENTIA. Every oath ought to be of certain
knowledge. 4 Inst. 279.
OMNE TESTAMENTUM MORTE CONSUMMA-
TUM EST. 3 Coke, 29. Every will is completed
by death.
OMNES ACTIONES IN MUNDO INFRA CERTA
TEMPORA HABENT LIMITATIONEM. All ac-
tions in the world are limited within certain
periods. Bract. fol. 52.
OMNES HOMINES AUT LIBERI SUNT AUT
SERVI. All men are freemen or slaves. Inst. 1,
3, pr.; Fleta, 1. 1, c. 1, § 2.
OMNES LICENTIAM HABERE HIS QUZE PRO
SE INDULTA SUNT, RENUNCIARE. [It is a
rule of the ancient law that] all persons shall have
liberty to renounce those privileges which have
been conferred for their benefit. Cod. 1, 3, 51;
Cod. 2, 3, 29; Broom, Max. 699.
OMNES PRUDENTES ILLA ADMITTERE SOL-
ENT QUIE PROBANTUR IIS QUI ARTE SUA
BENE VERSATI SUNT. All prudent men are ac-
customed to admit those things which are ap-
proved by those who are well versed in the art.
7 Coke, 19.
OMNES SORORES SUNT QUASI UNUS
HAERES DE UNA H1ZEREDITATE. Co.Litt.
67. All sisters are, as it were, one heir to one.
inheritance.
OMNI EXCEPTIONE MAJUS. 4 Inst. 262. Above
all exception.
OMNIA DELICTA IN APERTO LEVIORA SUNT..
All crimes that are committed openly are lighter,
[or have a less odious appearance than those com-
mitted secretly.] 8 Coke, 127a.
OMNIA PERFORMAVIT. He has done all. In
pleading. A good plea in bar where all the cove-
nants are in the affirmative. Bailey v. Rogers, 1
Me. 189.
OMNIA PR)ESUMUNTUR CONTRA SPOLIA
TOREM. All things are presumed against a de
spoiler or wrong-doer. A leading maxim in the
law of evidence. Best, Ev. p. 340, § 303; Broom,.
Max. 938.
OMNIA PRZESU1VIUNTUR LEGITIME FACTA.
DONEC PROBETUR IN CONTRARIUM. All
things are presumed to be lawfully done, until
proof be made to the contrary. Co.Litt. 232b;
Best, Ev. p. 337, § 300.
OMNIA PRJESUMUNTUR RITE ET SOLEMNI-
TER ESSE ACTA DONEC PROBETUR IN CON-
TRARIUM. All things are presumed to have been
rightly and duly performed until it is proved to
the contrary. Co.Litt. 232; Broom, Max. 944.
OMNE QUOD SOLO INAEDIFICATUR SOLO CE- OMNIA PRIESUMUNTUR SOLEMNITER ESSE
BIT. Everything which is built upon the soil be- ACTA. Co.Litt. 6. All things are presumed to.
longs to the soil. Dig. 47, 3, 1; Broom, Max. 401. have been done rightly.
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OMNIUM
OMNIA. PRESUMUNTUR RITA ESSE ACTA. A
prima facie presumption of the regularity of the
acts of public officers exists until the contrary ap-
pears. Beacom v. Robison, 157 Pa.Super. 515, 43
A.2d 640, 643.
OMNIA QUIE JURE CONTRAH'UNTUR CON-
TRARIO JURE PEREUNT. Dig. 50, 17, 100. All
things which are contracted by law perish by a con-
trary law.
OMNIA QUX SUNT UXORIS SUNT IPSIUS
VIRI. All things which are the wife's are the hus-
band's. Bract. fol. 32; Co.Litt. 112a; 2 Kent,
Comm. 130-143.
OMNIA RITE ACTA PRZESUMUNTUR. All
things are presumed to have been rightly done.
Broom, Max. 944.
OMNIBUS. For all; containing two or more in-
dependent matters. Applied to a count in a decla-
ration, and to a bill of legislation, and perhaps to
a clause in a will, which comprises more than one
general subject. Yeager v. Weaver, 64 Pa. 428;
Parkinson v. State, 14 Md. 193, 74 Am.Dec. 522.
See In Omnibus.
OMNIBUS AD QUOS PRIESENTES LITERS
PERVENERINT, SALUTEM. To all to whom the
present letters shall come, greeting. A form of
address with which charters and deeds were an-
ciently commenced.
OMNIBUS BILL. In legislative practice, a bill in-
cluding in one act various separate and distinct
matters, and particularly one joining a number of
different subjects in one measure in such a way as
to compel the executive authority to accept provi-
sions which he does not approve or else defeat the
whole enactment. Corn. v. Barnett, 199 Pa. 161,
48 A. 977, 55 L.R.A. 882; Yeager v. Weaver, 64
Pa. 425.
In equity pleading, a bill embracing the whole of
a complex subject-matter by uniting all parties
in interest having adverse or conflicting claims,
thereby avoiding circuity or multiplicity of action.
OMNIS ACTIO EST LOQUELA. Every action is
a plaint or complaint. Co.Litt. 292a.
OMNIS CONCLUSIO BONI ET VERI JUDICII
SEQUITUR EX BONIS ET VERIS PR)EMISSIS
ET DICTIS JURATORUM. Every conclusion of
a good and true judgment follows from good and
true premises, and the verdicts of jurors. Co.Litt.
226b.
OMNIS CONSENSUS TOLLIT ERROREM. Ev-
ery consent removes error. Consent always re-
moves the effect of error. 2 Inst. 123.
OMNIS DEFINITIO IN JURE CIVIL! PERICU-
LOSA EST, PARUM EST ENIM UT NON SUB-
VERT! POSSIT. Every definition in the civil law
is dangerous, for there is very little that cannot
be overthrown. (There is no rule in the civil law
which is not liable to some exception; and the
least difference in the facts of the case renders its
application useless.) Dig. 50. 17. 202; 2 Woodd.
Lect. 196.
OMNIS DEFINITIO IN LEGE PERICULOSA.
All definition in law is hazardous. 2 Wood.Lect.
196.
OMNIS EXCEPTIO EST IPSA QUOQUE REGU-
LA. Every exception is itself also a rule.
OMNIS INDEMNATUS PRO INNOXIS LEGI-
BUS HABETUR. Every uncondemned person is
held by the law as innocent. Lofft, 121.
OMNIS INNOVATIO PLUS NOVITATE PER-
TURBAT QUAM ULTILITATE PRODEST.
Every innovation occasions more harm by its
novelty than benefit by its utility. 2 Bulst, 338;
Broom, Max. 147.
OMNIS INTERPRETATIO SI FIER! POTEST
ITA FIENDA EST IN INSTRUMENTIS, UT
OMNES CONTRARIETATES AMOVEANTUR.
Jenk. Cent. 96. Every interpretation, if it can be
done, is to be so made in instruments that all con-
tradictions may be removed.
OMNIS INTERPRETATIO VEL DECLARAT,
VEL EXTENDIT, VEL RESTRINGIT. Every
interpretation either declares, extends, or re-
strains.
OMNIS NOVA CONSTITUTIO FUTURIS FORM-
AM IMPONERE DEBET, NON PRIETERITIS.
Every new statute ought to prescribe a form to
future, not to past, acts. Bract. fol. 228; 2 Inst.
95.
OMNIS PERSONA EST HOMO, SED NON VICIS-
SIM. Every person is a man, but not every man
a person. Calvin.
OMNIS PRIVATIO PRZESUPPONIT HABrrum.
Every privation presupposes a former enjoyment.
Co.Litt. 339a. A "rule of philosophie" quoted by
Lord Coke, and applied to the discontinuance of
an estate.
OMNIS QUEREIA ET OMNIS ACTIO INJURIAR-
UM LIMITA EST INFRA CERTA TEMPORA.
Co.Litt. 114b. Every plaint and every action for
injuries is limited within certain times.
OMNIS RATMABITIO RETROTRAHITUR ET
MANDATO PRIORI IEQUIPARATUR. Every
ratification relates back and is equivalent to a
prior authority. Broom, Max. 757, 871; Chit.
Cont. 196.
OMNIS REGULA SUAS PATITUR EXCEP-
TIONES. Every rule is liable to its own excep-
tions.
OMNIUM. In mercantile law. A term used to ex-
press the aggregate value of the different stock
in which a loan is usually funded. Tomlins.
OMNIUM CONTRIBUTIONE SARCIATUR QUOD
PRO OMNIBUS DATUM EST. 4 Bing. 121. That
which is given for, all is recompensed by the con-
tribution of all. A principle of the law of general
average.
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OXINIUM
OMNIUM RERUM QUARUM USUS EST, POTEST
ESSE ABUSUS, VIRTUTE SOLO EXCEPTA.
There may be an abuse of everything of which
there is a use, virtue only excepted. Day.Ir.K.B.
79.
ON. Upon; as soon as; near to; along; along
side of; adjacent to; contiguous to; at the time
of; following upon; in; during; at or in contact
with upper surface of a thing. Slaughter v. Rob-
inson, 52 Utah, 273, 173 P. 456, 458; Hinton v.
Vinson, 180 N.C. 393, 104 S.E. 897, 900; Stuckey v.
Jones, Tex.Civ.App., 240 S.W. 565, 566.
ON ACCOUNT. In part payment; in partial sat-
isfaction of an account. The phrase is usually con-
trasted with "in full."
See, also, On or About and On the Person.
ON ACCOUNT OF WHOM IT MAY CONCERN.
When a policy of insurance expresses that the in-
surance is made "on account of whom it may con-
cern," it will cover all persons having an insurable
interest in the subject-matter at the date of the
policy and who were then contemplated by the
party procuring the insurance. 2 Pars.Mar.Law,
30.
ON ALL FOURS. A phrase used to express the
idea that a case at bar is in all points similar to an-
other. The one is said to be on all fours with the
other when the facts are similar and the same
questions of law are involved.
ON CALL. There is no legal difference between
an obligation payable "when demanded" or "on
demand" and one payable "on call" or "at any time
called for." In each case the debt is payable im-
mediately. Bowman v. McChesney, 22 Grat. (Va.)
609; Citizens' Bank of Waynesboro v. Mobley, 166
Ga. 543, 144 S.E. 119, 121, 58 A.L.R. 1383.
The term "on call," according to the evidence, is a
term known to persons engaged in the cotton business, and
means that cotton placed "on call" is sold, but the price re-
mains unfixed, and that the owner has until a certain set
date in the future to name the market price of the cotton
on any day between the day the cotton is placed "on call"
and the set day as the price at which the owner is entitled
to a settlement for the cotton. Bennett v. Weil Bros., 28
Ga.App. 266, 110 S.E. 744.
ON DEFAULT. In case of default; upon failure
of stipulated action or performance; upon the
occurrence of a failure, omission, or neglect of
duty.
ON DEMAND. A promissory note payable "on
demand" is a present debt, and is payable without
any demand. Dominion Trust Co. v. Hildner, 243
Pa. 253, 90 A. 69.
ON FILE. Filed; entered or placed upon the files;
existing and remaining upon or among the proper
files. Slosson v. Hall, 17 Minn. 95 (Gil. 71) ; Snider
v. Methvin, 60 Tex. 487.
ON OR ABOUT. A phrase used in reciting the
date of an occurrence or conveyance, or the loca-
tion of it to escape the necessity of being bound by
the statement of an exact date, or place; approxi-
mately; about; without substantial variance from;
near. Parker v. State, 63 Ind.App. 671, 113 N.E.
763, 764; Render v. Commonwealth, 206 Ky. 1, 266
S.W. 914, 916; Thompson v. U. S., C.C.A.N.J., 283
F. 895, 897; Pillsbury Flour Mills Co. v. Erie R.
Co., 216 N.Y.S. 486, 489, 127 Misc.Rep. 466; Petty
v. Giles, 29 C.C.P.A. (Patents) 804, 125 F.2d 177,
181.
As used in statutes making it an offense to carry a
weapon "on or about" the person, it is generally held that
the word "on" means connected with or attached to, and
that "about" is a comprehensive term having a broader
meaning than "on," and conveying the idea of being near
by, in close proximity, within immediate reach, or con-
veniently accessible. As applied to motor vehicles, there-
fore, it is commonly held that an occupant of the front
seat of an automobile is carrying a weapon "about" his
person where the weapon is on or under the seat, or be-
tween the cushion and the back of the seat, or on a shelf
behind the seat, or in a pocket on the door or on the back
of the seat, or in the glove compartment, or on the floor.
There are, however, a few decisions to the contrary. The
cases are collected and analyzed in Blashfield, Cyc. of Au-
tomobile Law and Prac., Perm. Ed. § 5528.90.
ON OR BEFORE. These words, inserted in a stip-
ulation to do an act or pay money, entitle the
party stipulating to perform at any time before the
day; and upon performance, or tender and refusal,
he is immediately vested with all the rights which
would have attached if performance were made on
the day. Davis v. Burns, Tex.Civ.App., 173 S.W.
476, 480; McGrory Stores Corporation v. Goldberg,
95 N.J.Eq. 152, 122 A. 113.
ON STAND. A term used in the law of landlord
and tenant. A tenant of a farm who cannot carry
away manure but has the right to sell it to his
successor, is said to have the right of on stand on
the farm for it till he can sell it; he may maintain
trespass for the taking of it by the incoming ten-
ant before it is sold. 16 East 116.
ON THE PERSON. In common parlance, when
it is said that someone has an article on his per-
son, it means that it is either in contact with his
person or is carried in his clothing. Corn. v.
Lanzetti, 97 Pa.Super. 126.
Accordingly, where a statute punishes the carrying of a
weapon "on the person," an occupant of an automobile
does not violate the statute by carrying therein a weapon
detached from his person, as, e. g., where the weapon is
under the cushion of the seat. Blashfield, Cyc. of Auto-
mobile Law and Prac., Perm. Ed., § 5528.88.
ONCE A FRAUD, ALWAYS A FRAUD. 13 Vin.
Abr. 539.
ONCE A MORTGAGE, ALWAYS A MORTGAGE.
This rule signifies that an instrument originally
intended as a mortgage, and not a deed, cannot be
converted into anything else than a mortgage by
any subsequent clause or agreement.
ONCE A RECOMPENSE, ALWAYS A RECOM-
PENSE. 19 Vin.Abr. 277.
ONCE IN JEOPARDY. A phrase used to express
the condition of a person charged with crime, who
has once already, by legal proceedings, been put in
danger of conviction and punishment for the same
offense. Com. v. Fitzpatrick, 121 Pa. 109, 15 A.
466, 1 L.R.A. 451, 6 Am.St.Rep. 757.
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ONCE QUIT AND CLEARED, EVER QUIT AND
CLEARED. (Scotch, anis quit and clenged, ay
quit and clenged.) Skene, de Verb. Sign. voc.
"Iter.," ad fin.
ONCUNNE. L. Fr. Accused. Du Cange.
ONE HUNDRED THOUSAND POUNDS CLAUSE.
A precautionary stipulation inserted in a deed
making a good tenant to the prcecipe in a common
recovery. 1 Prest.Conv. 110.
ONE PERSON, ONE VOTE. State legislative dis-
tricting which gives equal legislative representa-
tion to all citizens of all places. The rule was es-
tablished in Reynolds v. Sims, 377 U.S. 533, 568, 84
S.Ct. 1362, 1385, which required that the seats in
both houses of a bicameral state legislature be
apportioned on a population basis.
ONE THIRD NEW FOR OLD. See New for Old.
ONE YEAR. A calendar year, regardless of
whether it be a leap year or otherwise. Rev.St.
1925, art. 23. Douglas v. Acacia Mut. Life Ins.
Co., Tex.Civ.App., 118 S.W.2d 643.
ONERANDO PRO RATA PORTION'S. A writ
that lay for a joint tenant or tenant in common
who was distrained for more rent than his pro-
portion of the land comes to. Reg.Orig. 182.
ONERARI NON. In pleading. The name of a
plea, in an action of debt, by which the defendant
says that he ought not to be charged.
ONERATIO. Lat. A lading; a cargo.
ONERATUR NISI. See 0. Ni.
ONERIS FERENDI. Lat. In the civil law. The
servitude of support; a servitude by which the
wall of a house is required to sustain the wall or
beams of the adjoining house.
ONEROUS. A contract, lease, share, or other
right is said to be "onerous" when the obligations
attaching to it counter-balance or exceed the ad-
vantage to be derived from it, either absolutely
or with reference to the particular possessor.
Sweet.
As used in the civil law and in the systems de-
rived from it, (French, Scotch, Spanish, Mexican,)
the term also means based upon, supported by, or
relating to a good and valuable consideration, i. e.,
one which imposes a burden or charge in return
for the benefit conferred.
ONEROUS CAUSE. In Scotch law. A good and
legal consideration.
ONEROUS CONTRACT. See Contract.
ONEROUS DEED. In Scotch law. A deed given
for a valuable consideration. Bell.
ONEROUS GIFT. A gift made subject to certain
charges imposed by the donor on the donee.
ONEROUS TITLE. A title acquired by the giving
of a valuable consideration, as the payment of
money or rendition of services or the performance
of conditions or assumption or discharge of liens
or charges. Scott v. Ward, .13 Cal. 458; Kircher
v. Murray, C.C.Tex., 54 F. 617; Noe v. Card, 14
Cal. 576; Civ.Code La. 1900, art. 3556.
ONLY. Solely; merely; for no other purpose; at
no other time; in no otherwise; alone; of or by
itself; without anything more; exclusive; nothing
else or more.
ONOMASTIC. A term applied to the signature
of an instrument, the body of which is in a dif-
ferent handwriting from that of the signature.
Best, Ev. 315.
ONROERENDE AND VAST STAAT. Dutch. Im-
movable and fast estate, that is, land or real es-
tate. The phrase is used in Dutch wills, deeds,
and antenuptial contracts of the early colonial
period in New York. Spraker v. Van Alstyne, 18
Wend., N.Y., 208.
ONUS. Lat. A burden or load; a weight. The
lading, burden, or cargo of a vessel. A charge;
an incumbrance. Cum onere, (q. v.,) with the
incumbrance.
ONUS EPISCOPALE. Ancient customary pay-
ments from the clergy to their diocesan bishop,
of synodals, pentecostals, etc.
ONUS IMPORTANDI. The charge of importing
merchandise, mentioned in St. 12 Car. II. c. 28.
ONUS PROBANDI. Burden of proving; the bur-
den of proof. The strict meaning of the term
"onus probandi" is that, if no evidence is adduced
by the party on whom the burden is cast, the is-
sue must be found against him. Davis v. Rogers,
1 Houst. (Del.) 44.
OPE CONSILIO. Lat. By aid and counsel. A
civil law term applied to accessaries, similar in
import to the "aiding and abetting" of the com-
mon law. Often written "ope et consilio." Bur-
rill.
OPEN, v. To render accessible, visible, or avail-
able; to submit or subject to examination, in-
quiry, or review, by the removal of restrictions
or impediments.
Open a case. In practice. To open a case is to
begin it; to make an initiatory explanation of its
features to the court, jury, referee, etc., by out-
lining the nature of the transaction on which it is
founded, the questions involved, and the charac-
ter and general course of the evidence to be ad-
duced.
Open a commission. To enter upon the du-
ties under a commission, or commence to act un-
der a commission, is so termed in English law.
Thus, the judges of assize and nisi prius derive
their authority to act under or by virtue of com-
missions directed to them for that purpose; and,
when they commence acting under the powers so
committed to them, they are said to open the com-
missions; and the day on which they so commence
their proceedings is thence termed the "commis-
sion day of the assizes." Brown.
Open a court. To open a court is to make a
formal announcement, usually by the crier or bail-
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iff, that its session has now begun and that the
business before the court will be proceeded with.
Open a credit. To accept or pay the draft of
a correspondent who has not furnished funds.
Pardessus, no. 296.
Open a deposition. To break the seals by
which it was secured, and lay it open to view, or
to bring it into court ready for use.
Open a judgment. To lift or relax the bar of
finality and conclusiveness which it imposes so as
to permit a re-examination of the merits of the
action in which it was rendered. This is done at
the instance of a party showing good cause why
the execution of the judgment would be inequita-
ble. It so far annuls the judgment as to prevent
its enforcement until the final determination upon
it, but does not in the meantime release its lien
upon real estate. Insurance Co. v. Beale, 110 Pa.
321, 1 A. 926.
Open a rule. To restore or recall a rule which
has been made absolute to its conditional state,
as a rule nisi, so as to readmit of cause being
shown against the rule. Thus, when a rule to
show cause has been made absolute under a mis-
taken impression that no counsel had been in-
structed to show cause against it, it is usual for
the party at whose instance the rule was obtained
to consent to have the rule opened, by which all
the proceedings subsequent to the day when cause
ought to have been shown against it are in effect
nullified, and the rule is then argued in the ordina-
ry way. Brown.
Open a street or highway. To establish it
by law and make it passable and available for
public travel. Wilcoxon v. San Luis Obispo, 101
Cal. 508, 35 P. 988; Patterson v. City of Baltimore,
130 Md. 645, 101 A. 589, 591; Royal v. City of Des
Moines, 195 Iowa, 23, 191 N.W. 377, 383.
Open bids. To open bids received - on a fore-
closure or other judicial sale is to reject or cancel
them for fraud, mistake, or other cause, and order
a resale of the property. Andrews v. Scotton, 2
Bland (Md.) 644.
Open the door. If one party to litigation puts
in evidence part of document or correspond-
ence or conversation which is detrimental to the
opposing party, the latter may introduce balance
of document, correspondence or conversation in
order to explain or rebut adverse inferences which
might arise from the fragmentary or incomplete
character of evidence introduced by his adversary.
U. S. v. Corrigan, C.C.A.N.Y., 168 F.2d 641, 645.
Open the pleadings. To state briefly at a
trial before a jury the substance of the pleadings.
This is done by the junior counsel for the plaintiff
at the commencement of the trial.
OPEN, adj. Patent; visible; apparent; notori-
ous; not clandestine; not closed, settled, fixed, or
terminated. Pratt v. Boggs, 171 Ky. 106, 186 S. W.
901, 902; Dale v. Hart/on, D.C.Wash., 289 F. 493,
495.
As to open "Account," "Corporation," "Entry,"
"Insolvency," "Lewdness," "Policy," "Possession,"
and "Verdict," see those titles.
Open bulk. In the mass; exposed to view; not
tied or sealed np. In re Sanders, C.C.N.C., 52 F.
802, 18 L.R.A. 549.
Open court. This term may mean either a
court which has been formally convened and de-
clared open for the transaction of its proper ju-
dicial business, or a court which is freely open
to the approach of all decent and orderly persons
in the character of spectators. Conover v. Bird,
56 N.J.Law, 228, 28 A. 428. Gomes v. Ulibarri, 23
N.M. 501, 169 P. 301, 302; U. S. v. Ginsberg, 243
U.S. 472, 37 S.Ct. 422, 425, 61 L.Ed. 853; Gillham
v. St. Louis Southwestern Ry. Co. of Texas, Tex.
Civ.App., 241 S.W. 512, 514.
Open doors. In Scotch law. "Letters of open
doors" are process which empowers the messen-
ger, or officer of the law, to break open doors of
houses or rooms in which the debtor has placed
his goods. Bell.
Open-end agreement. An agreement between
employer and injured employee for compensa-
tion for indefinite period, approved by the labor
commissioner, having effect of judgment so long
as facts on which the award was predicated con-
tinue. Healey's Case, 124 Me. 54, 126 A. 21, 22.
Open fields, or meadows. In English law.
Fields which are undivided, but belong to separate
owners; the part of each owner is marked off by
boundaries until the crop has been carried off,
when the pasture is shared promiscuously by the
joint herd of all the owners. Elton, Commons, 31;
Sweet.
Open law. The making or waging of law.
Magna Charta, c. 21.
Open - lot. One bounded upon all sides by
streets. Illinois Surety Co. v. O'Brien, C.C.A.Ohio,
223 F. 933, 938.
Open mortgage clause. See Union Mortgage
Clause.
Open sea. The expanse and mass of any great
body of water, as distinguished from its margin
or coast, its harbors, bays, creeks, inlets. The
Cuzco, D.C.Wash., 225 F. 169, 176.
Open season. That portion of the year where-
in the laws for the preservation of game and fish
permit the killing of a particular species of game
or the taking of a particular variety of fish.
Open shop. In trade union cant, one where non-
union men are employed. George J. Grant Const.
Co. v. St. Paul Bldg. Trades Council, 136 Minn. 167,
161 N.W. 520, 521. A shop in which union and non-
union workmen are employed indiscriminately.
Shine v. Fox Bros. Mfg. Co., 156 F. 357, 86 C.C.A.
311. The term is frequently used in a deprecia-
tory seise, as implying that the operator of such
a shop, by employing nonunion men, is in effect
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discriminating against trade unions, and hamper-
ing their advancement.
Open theft. In Saxon law. The same with
the Latin "furtum manifestum," (q. v.).
OPENING. In American practice. The begin-
ning; the commencement; the first address of the
counsel.
OPENING STATEMENT OF COUNSEL. Outline
of anticipated proof. Speer v. Shipley, 149 Kan.
15, 85 P.2d 999, 1001. Its purpose is to advise the
jury of facts relied upon and of issues involved,
and to give jury a general picture of the facts and
the situations so that jury will be able to under-
stand the evidence. State v. Erwin, 101 Utah
365, 120 P.2d 285, 313.
OPENTIDE. The time after corn is carried out
of the fields.
OPERA. A composition of a dramatic kind, set
to music and sung, accompanied with musical in-
struments, and enriched with appropriate cos-
tumes, scenery, etc. The house in which operas
are represented is termed an "opera-house." Row-
land v. Kleber, 1 Pittsb.R. (Pa.) 71.
OPERARII. Such tenants, under feudal tenures,
as held some little portions of land by the duty of
performing bodily labor and servile works for
their lord.
OPERATE. This word, when used with relation
to automobiles, signifies a personal act in working
the mechanism of the automobile; that is, the
driver operates the automobile for the owner, but
the owner does not operate the automobile unless
he drives it himself. Beard v. Clark, Tex.Civ.
App., 83 S.W.2d 1023, 1025.
Similarly, as used in some statutes authorizing substi-
tuted service on the nonresident owner of an automo-
bile, the word "operate" is limited to the personal act of
the owner; but under other statutes, substituted service
is authorized when the automobile was being operated by
another with the owner's consent, whether express or
implied. Blashfield, Cyc. of Automobile Law and Prac.,
Perm.Ed., § 5914. In the context of some automobile
liability policies, the word "operate" may be construed
as describing the personal act of the insured owner in
working the mechanism of the automobile. Id., § 3941.
As used in accident policies insuring against injuries while
operating a motor vehicle "operate" does not contemplate
a constant and unceasing motion but includes those stops
which an automobile driver ordinarily makes, such as a
stop to change or repair a tire. Id., § 4127.
OPERATIO. One day's work performed by a ten-
ant for his lord.
OPERATION. Exertion of power; the process of
operating or mode of action; an effect brought
about in accordance with a definite plan; action;
activity. Little Rock v. Parish, 36 Ark. 166; Flem-
ing Oil Co. v. South Penn Oil Co., 37 W.Va. 653, 17
S.E. 203, National Exchange Bank and Trust Co.
of Steubenville v. New York Life Ins. Co., D.C.Pa.,
19 F.Supp. 790, 791. In surgical practice, the term
is of indefinite import, but may be approximately
defined as an act or succession of acts performed
upon the body of a patient, for his relief or restor-
ation to normal conditions, either by manipulation
or the use of surgical instruments or both, as dis-
tinguished from therapeutic treatment by the ad-
ministration of drugs or other remedial agencies.
See Akridge v. Noble, 114 Ga. 949, 41 S.E. 78.
Criminal operation. In medical jurisprudence.
An operation to procure an abortion. Miller v.
Bayer, 94 Wis. 123, 68 N.W. 869.
Operation of law. This term expresses the
manner in which rights, and sometimes liabilities,
devolve upon a. person by the mere application to
the particular transaction of the established rules
of law, without the act or co-operation of the par-
ty himself.
OPERATIVE. A workman; a laboring man; an
artisan; particularly one employed in factories.
Cocking v. Ward, Tenn.Ch.App., 48 S.W. 287; In
re City Trust Co., 121 F. 706, 58 C.C.A. 126.
OPERATIVE PART. That part of a conveyance,
or of any instrument intended for the creation or
transference of rights, by which the main object
of the instrument is carried into effect. It is dis-
tinguished from introductory matter, recitals, for-
mal conclusion, etc.
OPERATIVE WORDS, in a deed or lease, are the
words which effect the transaction intended to be
consummated by the instrument.
OPERIS NOVI NUNTIATIO. Lat. In the civil
law. A protest or warning against [of] a new
work. Dig. 39, 1.
OPETIDE. The ancient time of marriage, from
Epiphany to Ash-Wednesday.
OPHTHALMOLOGIST. One who is skilled in, or
practices, ophthalmology. Practice of "oculists"
and "ophthalmologists" has relation to practice
of medicine and surgery in treatment of diseases
of eye, while practice of "optometry" relates to
measurement of powers of vision and adaptation
of lenses for aid thereof. New Jersey State Board
of Optometrists v. S. S. Kresge Co., 113 N.J.L.
287, 174 A. 353, 357. See Oculist.
OPINIO EST DUPLEX, SCILICET, OPINIO VUL-
GARIS, ORTA INTER GRAVES ET DISCRETOS,
ET QUIE VULTUM VERITATIS HABET; ET
OPINIO TANTUM ORTA INTER LEVES ET
VULGARES HOMINES, ABSQUE SPECIE VERI-
TATIS. 4 Coke, 107. Opinion is of two kinds,
namely, common opinion, which springs up among
grave and discreet men, and which has the appear-
ance of truth, and opinion which springs up only
among light and foolish men, without the sem-
blance of truth.
OPINIO QUIE FAVET TESTAMENTO EST TEN-
ENDA. The opinion which favors a will is to be
followed. 1 W.B1. 13, arg.
OPINION. A document prepared by an attorney
for his client, embodying his understanding of the
law as applicable to a state of facts submitted to
him for that purpose.
The statement by a judge or court of the deci-
sion reached in regard to a cause tried or argued
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OPINION
before them, expounding the law as applied to the
case, and detailing the reasons upon which the
judgment is based. Craig v. Bennett, 158 Ind. 9,
62 N.E. 273; Coffey v. Gamble, 117 Iowa, 545, 91
N.W. 813.
The words "decision" and "opinion" do not have same
meaning, a "decision" of a court being its judgment, and
its "opinion" being reasons given for judgment. Robert-
son v. Vandergrift, 119 W.Va. 219, 193 S.E. 62, 63; In re
Brown's Guardianship, 6 Wash.2d 215, 107 P.2d 1104, 1106,
1107, 1108; Mosley v. Magnolia Petroleum Co., 45 N.M.
230, 114 P.2d 740, 747.
Concurring opinion. An opinion, separate from
that which embodies the views and decision of the
majority of the court, prepared and filed by a
judge who agrees in the general result of the de-
cision, and which either reinforces the majority
opinion by the expression of the particular judge's
own views or reasoning, or (more commonly)
voices his disapproval of the grounds of the deci-
sion or the arguments on which it was based,
though approving the final result.
Dissenting opinion. A separate opinion in
which a particular judge announces his dissent
from the conclusion held by a majority of the
court, and expounds his own views.
Per curiam opinion. One concurred in by the
entire court, but expressed as being "per curiam"
or "by the court," without disclosing the name of
any particular judge as being its author.
OPINION EVIDENCE. Evidence of what the wit-
ness thinks, believes, or infers in regard to facts
in dispute, as distinguished from his personal
knowledge of the facts themselves; not admissible
exceft (under certain limitations) in the case of
experts. Britt v. Carol i na Northern R. Co., 148
N.C. 37, 61 S.E. 601, 603. That which is given by
a person of ordinary capacity who has by oppor-
tunity for practice acquired special knowledge out-
side limits of common observation, of value in il-
lucidating a matter under consideration. Crosby
v. Wells, 73 N.J.L. 790, 67 A. 295, 298.
In the law of evidence, opinion is an inference or conclu-
sion drawn by a witness from facts some of which are
known to him and others assumed, or drawn from facts
which, though lending probability to the inference, do not
evolve it by a process of absolutely necessary reasoning.
Lipscomb v. State, 75 Miss. 559, 23 So. 210.
An inference necessarily involving- certain facts may be
stated without the facts, the inference being an equivalent
to a specification of the facts; but, when the facts are
not necessarily involved in the inference (e. g., when the
inference may be sustained upon either of several distinct
phases of fact, neither of which it necessarily involves,)
then the facts must be stated. Whart.Ev. § 510.
OPIUM. Drug consisting of inspissated juice of
opium poppy. State v. Brennan, 89 Mont. 479, 300
P. 273, 275.
OPIUM JOINT. A "joint" is usually regarded as
a place of meeting or resort for persons engaged in
evil and secret practices of any kind, as a tramps'
joint, such a place as is usually kept by Chinese
for the accommodation of persons addicted to the
habit of opium smoking, and where they are fur-
nished with pipes, opium, etc., for that purpose,
and called an "opium joint," or, generally speak-
ing, a rendezvous for persons of evil habits and
practices. State v. Shoaf, 179 N.C. 744, 102 S.E.
705, 706, 9 A.L.R. 426.
OPORTET QUOD CERTA RES DEDUCATUR IN
DONATIONEM. It is necessary that a certain
thing be brought into the gift, or made the sub-
ject of the conveyance. Bract. fol. 15b.
OPORTET QUOD CERTA RES DEDUCATUR IN
JUDICIUM. Jenk.Cent. 84. A thing certain must
be brought to judgment.
OPORTET QUOD CERTA SIT RES QUIE VEN-
DITUR. It is necessary that there should be a
certain thing which is sold. To make a valid sale,
there must be certainty as to the thing which is
sold. Bract. fol. 61b.
OPORTET QUOD CERTIE PERSONAE, TERRIE,
ET CERTI STATUS COMPREHENDANTUR IN
DECLARATIONE USUUM. 9 Coke, 9. It is nec-
essary that given persons, lands, and estates
should be comprehended in a declaration of uses.
OPPIGNERARE. Lat. In the civil law. To,
pledge. Calvin.
OPPOSER. An officer formerly belonging to the
green•wax in the exchequer.
OPPOSITE. An old word for "opponent."
OPPOSITE PARTY. Within statutes providing
that opposite party shall be incompetent to testi-
fy as to matters equally within knowledge of de-
ceased is one whose personal and financial inter-
ests, either immediate or remote, are antagonistic-
to like interests of protected party. Salsbury v.
Sackrider, 284 Mich. 493, 280 N.W. 926.
OPPOSITION. Act of opposing or resisting; an-
tagonism; state of being opposite or opposed;
antithesis; also, a position confronting another
or placing in contrast; that which is or furnishes
an obstacle to some result; political party opposed
to ministry or administration; or might be con-
strued to include peaceful and orderly opposition
to government. People v. Mintz, 106 Cal.App. 725,
290 P. 93, 97.
In Bankruptcy Practice. Opposition is the re-
fusal of a creditor to assent to the debtor's dis-
charge under the bankrupt law.
In French law. A motion to open a judgment
by default and let the defendant in to a defense.
OPPRESSION. The misdemeanor committed by
a public officer, who under color of his office,
wrongfully inflicts upon any person any bodily
harm, imprisonment, or other injury. 1 Russ.
Crimes, 297; Steph.Dig.Crim.Law, 71. See U. S.
v. Deaver, D.C.N.C., 14 F. 597. An act of cruelty,
severity, unlawful exaction, or excessive use of
authority. Ramsbacker v. Hohman, 80 Mont. 480,
261 P. 273, 276, an act of subjecting to cruel and
unjust hardship; an act of domination. Baker v.
Peck, 1 Cal.App.2d 231, 36 P.2d 404, 406.
OPPRESSOR. A public officer who unlawfully
uses his authority by way of oppression, (q. v.).
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OPUS
OPPROBRIUM. In the civil law. Ignominy; in-
famy; shame.
OPTICIAN. Persons engaged in optometry, who
confine themselves entirely to the work of making
lenses in accordance with prescriptions given by
physicians or oculists, are known as "opticians";
others, who manufacture the lenses, either ac-
cording to their own judgment or the prescription
of physicians, and also examine the eyes to ascer-
tain whether there are any such defects visible as
can be corrected by the application of lenses, are
known as "optometrists." Martin v. Baldy, 249
Pa. 253, 94 A. 1091, 1092.
OPTIMA EST LEGIS INTERPRES CONSUETU-
DO. Custom is the best interpreter of the law.
Dig. 1, 3, 37; Broom, Max. 931; Lofft, 237.
OPTIMA EST LEX QU1E MINIMUM RELINQUIT
ARBITRIO JUDICIS; OPTIMUS JUDEX QUI
MINIMUM SIBI. That law is the best which
leaves least to the discretion of the judge; that
judge is the best who leaves least to his own. Bac.
Aphorisms, 46; 2 Dwar.St. 782. That system of
law is best which confides as little as possible to
the discretion of the judge; that judge the best
who relies as little as possible on his own opinion.
Broom, Max. 84; 1 Kent, Comm. 478.
OPTIMA STATUTI INTERPRETATRIX EST
(OMNIBUS PARTICULIS EJUSDEM INSPEC-
TIS) IPSUM STATUTUM. The best interpreter
of a statute is (all its parts being considered) the
statute itself. Wing.Max. p. 239, max. 68; 8 Coke,
117b.
OPTIMACY. Nobility; men of the highest rank.
OPTIMAM ESSE LEGEM, QUIE MINIMUM RE-
LINQUIT ARBITRIO JUDICIS; ID QUOD CER-
TITUDO EJUS PR1ESTAT. That law is the best
which leaves the least discretion to the judge;
and this is an advantage which results from its
certainty. Bac.Aphorisms, 8.
OPTIMUS INTERPRES RERUM USUS. Use or
usage is the best interpreter of things. 2 Inst.
282; Broom, Max. 917, 930, 931.
OPTIMUS INTERPRETANDI MODUS EST SIC
LEGES INTERPRETARI UT LEGES LEGIBUS
CONCORDANT. 8 Coke, 169. The best mode of
interpretation is so to interpret laws that they
may accord with each other.
OPTIMUS JUDEX, QUI MINIMUM SIBI. He is
the best judge who relies as little as possible on
his own discretion. Bacon, Aph. 46; Broom, Max.
84.
OPTIMUS LEGUM INTERPRES CONSUETUDO.
4 Inst. 75. Custom is the best interpreter of the
laws.
OPTION. In English ecclesiastical law. A custo-
mary prerogative of an archbishop, when a bishop
is consecrated by him, to name a clerk or chaplain
of his own to be provided for by such suffragan
bishop; in lieu of which it is now usual for the
bishop to make over by deed to the archbishop,
his executors and assigns, the next presentation of
such dignity or benefice in the bishop's disposal
within that see, as the archbishop himself shall
choose, which is therefore called his "option." 1
Bl.Comm. 381; 3 Steph.Comm. 63, 64; Cowell.
In contracts.  A privilege existing in one per-
son, for which he has paid money, which gives
him the right to buy certain merchandise or cer-
tain specified securities from another person, if
he chooses, at any time within an agreed period,
at a fixed price, or to sell such property to such
other person at an agreed price and time. U the
option gives the choice of buying or not buying,
it is denominated a "call." If it gives the choice
of selling or not, it is called a "put." If it is a
combination of both these, and gives the privilege
of either buying or selling or not, it is called a
"straddle" or a "spread eagle." These terms are
used on the stock-exchange. Plank v. Jackson,
128 Ind. 424, 26 N.E. 568; Osgood v. Bauder, 75
Iowa, 550, 39 N.W. 887, 1 L.R.A. 655.
A continuing offer or contract by which owner stipulates
with another that latter shall have right to buy property
at fixed price within certain time, and an agreement is
only an "option" when no obligation rests on party 'to
make any payment except such as may be agreed on be-
tween parties as consideration to support option until he
has made up his mind within time specified to complete
purchase. Gibbs v. Piper, Del., 153 A. 674, 676.
It is but continuing offer, which is merged in contract
resulting from acceptance thereof. Helvering v. Bartlett,
C.C.A. 4, 71 F.2d 598, 599.
OPTIONAL WRIT. In old England practice. That
species of original writ, otherwise called a "prce-
cipe," which was framed in the alternative, com-
manding the defendant to do the thing required,
or show the reason wherefore he had not done it.
3 Bl.Comm. 274.
OPTOMETRIST. One who is skilled in, or prac-
tices, optometry. Webster, Diet. See Oculist.
OPTOMETRY. The employment of any means
other than the use of drugs for the measurement
of the powers of vision and the adaptation of
lenses for the correction and aid thereof. Martin
v. Baldy, 249 Pa. 253, 94 A. 1091, 1092; People v.
Griffith, 280 Ill. 18, 117 N.E. 195, 196; New Jersey
State Board of Optometrists v. S. S. Kresge Co.,
113 N.J.Law, 287, 174 A. 353, 356.
OPUS. Lat. Work; labor; the product of work
or labor.
OPUS LOCATUM. The product of work let for
use to another; or the hiring out of work or labor
to be done upon a thing.
OPUS MANIFICUM. In old English law. Labor
done by the hands; manual labor; such as making
a hedge, digging a ditch. Fleta, lib. 2, c. 48, § 3.
OPUS NOVUM. In the civil law. A new work.
By this term was meant something newly built
upon land, or taken from a work already erected.
He was said opus novum facere (to make a new
work) who, either by building or by taking any-
thing away, changed the former appearance of
a work. Dig. 39, 1, 1, 11.
•
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OR
OR, n. A term used in heraldry, and signifying
gold; called "sol" by some heralds when it occurs
in the arms of princes, and "topaz" or "carbuncle"
when borne by peers. Engravers represent it by
an indefinite number of small points. Wharton.
OR, conj. A disjunctive particle used to express
an alternative or to give a choice of one among
two or more things. It is also used to clarify
what has already been said, and in such cases,
means "in other words," "to-wit," or "that is to
say." Peck v. Board of Directors of Public Schools
for Parish of Catahoula, 137 La. 334, 68 So. 629,
630; Travelers' Protective Ass'n v. Jones, 75 Ind.
App. 29, 127 N.E. 783, 785.
Or is frequently misused; and courts will con-
strue it to mean "and" where it was so used. State
v. Circuit Court of Dodge County, 176 Wis. 198,
186 N.W. 732, 734; Northern Commercial Co. v.
U. S., C.C.A.Alaska, 217 F. 33, 36; Spillman v.
Succession of Spillman, 147 La. 47, 84 So. 489, 490;
Smiley v. Lenane, 363 Ill. 66, 1 N.E.2d 213, 216.
However, where the word "or" is preceded by the
word "either," it is never given a conjunctive
meaning. Smith v. Farley, 155 App.Div. 813, 140
N.Y.S. 990, 992.
ORA. A Saxon coin, valued at sixteen pence, and
sometimes at twenty pence.
ORACULUM. In the civil law. The name of a
kind of response or sentence given by the Roman
emperors.
ORAL. Uttered by the mouth or in words; spo-
ken, not written.
ORAL CONTRACT. One which is partly in writ-
ing and partly depends on spoken words, or none
of which is in writing; one which, so far as it has
been reduced to writing, is incomplete or expresses
only a part of what is intended, but is completed
by spoken words; or one which, originally written,
has afterwards been changed orally. Railway Pas-
senger, etc., Ass'n v. Loomis, 142 Ill. 560, 32 N.E.
424; Moore v. Ohl, 65 Ind.App. 691, 116 N.E. 9, 10.
ORAL EVIDENCE. Evidence given by word of
mouth; the oral testimony of a witness. Bates'
Ann.St.Ohio 1904, § 5262 (Gen.Code, § 11522) ;
Rev.St.Wyo.1899, § 3704 (Rev.St.1931, § 89-1725).
See, also, Parol Evidence.
ORAL PLEADING. Pleading by word of mouth,
in the actual presence of the court. This was the
ancient mode of pleading in England, and con-
tinued to the reign of Edward III. Steph.Pl. 23-26.
ORANDO PRO REGE ET REGNO. An ancient
writ which issued, while there was no standing
collect for a sitting parliament, to pray for the
peace and good government of the realm.
ORANGEMEN. A party in Ireland who keep alive
the views of William of Orange. Wharton.
ORATOR. The plaintiff in a cause or matter in
chancery, when addressing or petitioning the court,
used to style himself "orator," and, when a woman,
"oratrix." But these terms have long gone into
disuse, and the customary phrases now are "plain-
tiff" or "petitioner."
In Roman law, the term denoted an advocate.
ORATRIX. A female petitioner; a female plain-
tiff in a bill in chancery was formerly so called.
ORBATION. Deprivation of one's parents or chil-
dren, or privation in general. Little used.
ORCINUS LIBERTUS. Lat. In Roman law. A
freedman who obtained his liberty by the direct
operation of the will or testament of his deceased
master was so called, being the freedman of the
deceased, (orcinus,) not of the hceres. Brown.
ORDAIN. To institute or establish; to make an
ordinance; to enact a constitution or law. State
v. Dallas City, 72 Or. 337, 143 P. 1127, 1131, Ann.
Cas.1916B, 855. To confer on a person the holy
orders of priest or deacon. Kibbe v. Antram, 4
Conn. 134.
ORDAINERS. An elected body of 21 members ap-
pointed by Parliament in 1310 to make ordinances
for the good of the realm. The whole administra-
tion passed into their hands. Stubbs, Early Plan-
tagenets.
ORDEAL. The most ancient species of trial, in
Saxon and old English law, being peculiarly dis-
tinguished by the appellation of "judicium Dei," or
"judgment of God," it being supposed that super-
natural intervention would rescue an innocent per-
son from the danger of physical harm to which
he was exposed in this species of trial. The ordeal
was of two sorts,—either fire ordeal or water or-
deal; the former being confined to persons of
higher rank, the latter to the common people. 4
Bl.Comm. 342.
Fire ordeal. The ordeal by fire or red-hot iron,
which was performed either by taking up in the
hand a piece of red-hot iron, of one, two, or three
pounds weight, or by walking barefoot and blind-
folded over nine red-hot plowshares, laid length.
wise at unequal distances. 4 Bl.Comm. 343; Cow-
ell..
Water Ordeal
In Saxon and old English law. The ordeal or
trial by water. The hot-water ordeal was per-
formed by plunging the bare arm up to the elbow
in boiling water, and escaping unhurt thereby.
The cold-water ordeal was performed by casting
the person suspected into a river or pond of cold
water, when, if he floated therein, without any
action of swimming it was deemed an evidence
of his guilt; but, if he sunk, he was acquitted.
4 Bl.Comm. 343.
ORDEFFE, or ORDELFE. A liberty whereby a
man claims the ore found in his own land; also,
the ore lying under land. Cowell.
ORDELS. In old English law. The right of ad-
ministering oaths and adjudging trials by ordeal
within a precinct or liberty. Cowell.
ORDENAMIENTO. In Spanish law. An order
emanating from the sovereign, and differing from
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ORDER
a cedula only in form and in the mode of its prom-
ulgation. Schm.Civil Law, Introd. 93, note.
ORDENAMIENTO DE ALCALA. A collection of
Spanish law promulgated by the Cortes in the year
1348. Schm.Civil Law, Introd. 75.
ORDER. A mandate, precept; a command or di-
rection authoritatively given; a rule or regulation.
Brady v. Interstate Commerce Commission, D.C.
W.Va., 43 F.2d 847, 850.
The distinction between "order" and "requisition" is
that the first is a mandatory act, the latter a request.
Mills v. Martin, 19 Johns. (N.Y.) 7.
An informal bill of exchange or letter of request
whereby the party to whom it is addressed is di-
rected to pay or deliver to a person therein named
the whole or part of a fund or other property of
the person making the order, and which is in the
possession of the drawee. People v. Smith, 112
Mich. 192, 70 N.W. 466, 67 Am.St.Rep. 392; State
v. Nevins, 23 Vt. 521. A designation of the person
to whom a bill of exchange or negotiable promis-
sory note is to be paid.
It is also used to designate a rank, class, or di-
vision of men; as the order of nobles, order of
knights, order of priests, etc.
Orders are also issued by subordinate legislative author-
ities. Such are the English orders in council, or orders is-
sued by the privy council in the name of the king, either
in exercise of the royal prerogative or in pursuance of an
act of parliament. The rules of court under the judicature
act are grouped together in the form of orders, each order
dealing with a particular subject-matter. Sweet.
In French law. The name order (ordre) is given
to the operation which has for its object to fix the
rank of the preferences claimed by the creditors
in the distribution of the price [arising from the
sale] of an immovable affected by their liens. Dal-
loz, mot "Ordre."
Practice
Every direction of a court or judge made or en-
tered in writing, and not included in a judgment.
An application for an order is a motion. Code Civ.
Proc.Cal. § 1003; Code N.Y. § 400 (Civil Practice
Act, § 113). Tyvand v. McDonne, 37 N.D. 251,
164 N.W. 1, 3; First Nat. Bank v. Poling, 42 Idaho
636, 248 P. 19, 20.
General
Agreed order. See Agreed.
Charging order. The name bestowed, in English
practice, upon an order allowed by St. 1 & 2 Vict.
c. 110, § 14, and 3 & 4 Vict. c. 82, to be granted to
a judgment creditor, that the property of a judg-
ment debtor in government stock, or in the stock
of any public company in England, corporate or
otherwise, shall (whether standing in his own
name or in the name of any person in trust for
him) stand charged with the payment of the
amount for which judgment shall have been re-
covered, with interest. 3 Steph.Comm. 587, 588.
Decretal order. In chancery practice. An order
made by the court of chancery, in the nature of a
decree, upon a motion or petition. Thompson v.
McKim, 6 Har. & J. Md. 319; Bissell Carpet Sweep-,
er Co. v. Goshen Sweeper Co., 19 C.C.A. 25, 72 F.
545. An order in a chancery suit made on motion
or otherwise not at the regular hearing of a cause,
and yet not of an interlocutory nature, but finally
disposing of the cause, so far as a decree could
then have disposed of it. Mozley & Whiteley.
Final order. One which either terminates the
action itself, or decides some matter litigated by
the parties, or operates to divest some right; or
one which completely disposes of the subject-mat-
ter and the rights of the parties. Salem King's
Products Co. v. La Follette, 100 Or. 11, 196 P. 416,
417; Stockham v. Knollenberg, 133 Md. 337, 105 A.
305, 307; Marchant & Taylor v. Mathews County,
139 Va. 723, 124 S.E. 420, 423.
General orders. Orders or rules of court, prom-
ulgated for the guidance of practitioners and the
regulation of procedure in general, or in some gen-
eral branch of its jurisdiction; as opposed to a rule
or an order made in an individual case; the rules
of court.
Interlocutory order. An order which decides not
the cause, but only settles some intervening matter
relating to it; as when an order is made, on a mo-
tion in chancery, for the plaintiff.to have an in-
junction to quiet his possession till the hearing of
the cause. Termes de la Ley; Gas & Electric Se-
curities Co. v. Manhattan & Queens Traction Cor-
poration, C.C.A.N.Y., 266 F. 625, 632; Johnson v.
Roberson, 171 N.C. 194, 88 S.E. 231; Theo. Hirsch
Co. v. Scott, 87 Fla. 336, 100 So. 157, 158; Salmons
v. Rugyeri, 103 N.J.Law, 596, 137 A. 568, 569;
Simons v. Morris, 325 Ill. 199, 156 N.E. 280; Joyce
v. Nona Mills Co., 142 La. 934, 77 So. 854.
Money order. See Money.
Restraining order. In equity practice. An order
which may issue upon the filing of an application
for an injunction forbidding the defendant to do.
the threatened act until a hearing on the applica-
tion can be had. Though the term is sometimes
used as a synonym of "injunction," a restraining
order is properly distinguishable from an injunc-
tion, in that the former is intended only as a re-
straint upon the defendant until the propriety
of granting an injunction, temporary or perpetual,
can be determined, and it does no more than re-
strain the proceedings until such determination.
Wetzstein v. Boston, etc., Min. Co., 25 Mont. 135,
63 P. 1043. Mason v. Milligan, 185 Ind. 319, 114
N.E. 3; Labbitt v. Bunston, 80 Mont. 293, 260 P.
727, 730. In English law, the term is specially
applied to an order restraining the Bank of Eng-
land, or any public company, from allowing any
dealing with some stock or shares specified in the
order. It is granted on motion or petition. Hunt,.
Eq. p. 216.
Speaking order. An order which contains mat-
ter which is explanatory or illustrative of the mere
direction which is given by it is sometimes thus.
called. Duff v. Duff, 101 Cal. 1, 35 P. 437.
Stop order. The meaning of a stop order given
to a broker is to wait until the market price of the
particular security reaches a specified figure, and:
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ORDER
then to "stop" the transaction by either selling
or buying, as the case may be, as well as possible.
Porter v. Wormser, 94 N.Y. 431.
Order and disposition of goods and chattels.
When goods are in the "order and disposition" of
a bankrupt, they go to his trustee, and have gone
so since the time of James L Wharton.
Order nisi. A provisional or conditional order,
allowing a certain time within which to do some
required act, on failure of which the order will
be made absolute.
Order of discharge. In England. An order made
under the bankruptcy act of 1869, by a court of
bankruptcy, the effect of which is to discharge a
bankrupt from all debts, claims, or demands prov-
able under the bankruptcy.
Order of filiation. An order made by a court or
judge having jurisdiction, fixing the paternity of
a bastard child upon a given man, and requiring
him to provide for its support.
Order of revivor. In English practice. An order
as of course for the continuance of an abated suit.
It superseded the bill of revivor.
ORDERLY. A hospital attendant who does gen-
eral work. Phillips v. Buffalo General Hospital,
239 N.Y. 188, 146 N.E. 199, 200.
ORDERS. The directions as to the course and
purpose of a voyage given by the owner of the
vessel to the captain or master. For other mean-
ings, see Order.
ORDERS OF THE DAY. Any member of the Eng-
lish house of commons who wishes to propose any
question, or to "move the house," as it is termed,
must, in order to give the house due notice of his
intention, state the form or nature of his motion on
a previous day, and have it entered in a book
termed the "order-book;" and the motions so en-
tered, the house arranges, shall be considered on
particular days, and such motions or matters, when
the day arrives for their being considered, are
then termed the "orders of the day." Brown. A
similar practice obtains in the legislative bodies of
this country.
ORDINANCE. A rule established by authority; a
permanent rule of action; a law or statute. In a
more limited sense, the term is used to designate
the enactments of the legislative body of a munici-
pal corporation. State v. Swindell, 146 Ind. 527, 45
N.E. 700, 58 Am.St.Rep. 375; Bills v. Goshen, 117
Ind. 221, 20 N.E. 115, 3 L.R.A. 261.
The name has also been given to certain enact-
ments, more general in their character than ordi-
nary statutes, and serving as organic laws, yet not
exactly to be called "constitutions." Such was
the "Ordinance for the government of the North-
West Territory," enacted by congress in 1787.
Strictly, a bill or law which might stand with the old
law, and did not alter any statute in force at the time, anc'
which became complete by the royal assent on the parlia.
ment roll, without any entry on the statute roll. A bill or
law which might at any time be amended by the parlia-
ment, without any statute. Hale, Com. Law. An ordi-
nance was otherwise distinguished from a statute by the
circumstance that the latter required the threefold assent
of king, lords, and commons, while an ordinance might be
ordained by one or two of these constituent bodies. See
4 Inst. 25.
ORDINANCE OF 1647. A law passed by the Colo-
ny of Massachusetts, still in force, in a modified
form, whereby the state owns the great ponds
within its confines, which are held in trust for
public uses. Watuppa Reservoir Co. v. Fall River,
147 Mass. 548, 18 N.E. 465, 1 L.R.A. 466.
ORDINANCE OF 1648. A law of England relat-
ing to admiralty jurisdiction. See Bened. Adm.
99. It expired in 1660.
ORDINANCE OF 168L An ordinance of France
relating to maritime affairs. See Bened. Adm. I
173.
ORDINANCE OF 1787. A statute for the govern-
ment of the Northwest Territory. Religious and
legal freedom, encouragement of education, just
treatment of the Indians, the future division into
States, and the exclusion of slavery were ordained.
Webster, Dict.
ORDINANCE OF THE FOREST. In English law.
A statute made touching matters and causes of
the forest. 33 & 34 Edw. 1.
ORDINANCES OF EDWARD I. Two laws and
ordinances published by Edward I. in the second
year of his reign, at Hastings, relating to admir-
alty jurisdiction. These are said to have been the
foundation of a consistent usage for a long time.
See Bened. Adm. § 55.
ORDINANDI LEX. Lat. The law of procedure,
as distinguished from the substantial part of the
law.
ORDINARIUS ITA DICITUR QUTA HABET OR-
DINARIAM JURISDICTIONEM, IN JURE PRO-
PRIO, ET NON PROPTER DEPUTATIONEM.
Co.Litt. 96. The ordinary is so called because
he has an ordinary jurisdiction in his own right,
and not a deputed one.
ORDINARY, n. At common law. One who has
exempt and immediate jurisdiction in causes ec-
clesiastical. Also a bishop; and an archbishop is
the ordinary of the whole province, to visit and
receive appeals from inferior jurisdictions. Also a
commissary or official of a bishop or other ec-
clesiastical judge having judicial power; an arch-
deacon; officer of the royal household. Wharton.
In American law. A judicial officer, in several
of the states, clothed by statute with powers in
regard to wills, probate, administration, guardian-
ship, etc. Darrow v. Darrow, 201 Ala. 477, 78 So.
383, 384. A public house where food and lodging
are furnished to the traveler and his beast, at fixed
rates, open to whoever may apply for accommoda-
tion, and where intoxicating liquor is sold at re-
tail. Talbott v. Southern Seminary, 131 Va. 576,
109 S.E. 440, 441, 19 A.L.R. 534; City of Chicago
v. R. & X. Restaurant, 369 Ill. 65, 15 N'.E.2d 725,
727, 117 A.L.R. 1313.
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ORDINARY
In Scotch law. A single judge of the court of
session, who decides with or without a jury, as
the case may be. Brande.
In the civil law. A judge who has authority to
take cognizance of causes in his own right, and
not by deputation. Murden v. Beath, 1 Mill.
Const., S.C., 269.
Ordinary of assize and sessions. In old English
law. A deputy of the bishop of the diocese, an-
ciently appointed to give malefactors their• neck-
verses, and judge whether they read or not; also
to perform divine services for them, and assist in
preparing them for death. Wharton.
Ordinary of Newgate. The clergyman who is
attendant upon condemned malefactors in that
prison to prepare them for death; he records the
behavior of such persons. Formerly it was the
custom of the ordinary to publish a small pamph-
let upon the execution of any remarkable criminal.
Wharton.
ORDINARY, adj. Regular; usual; normal; com-
mon; often recurring; according to established or-
der; settled; customary; reasonable; not charac-
terized by peculiar or unusual circumstances; be-
longing to, exercised by, or characteristic of, the
normal or average individual. Albrecht v. Schultz
Belting Co., 299 Mo. 12; 252 S.W. 400, 402; State
v. Coulter, Mo.Sup., 204 S.W. 5; Albrecht v.
Schultz Belting Co., 299 Mo. 12, 252 S.W. 400, 402;
Wiener v. Mutual Life Ins. Co. of New York, Mo.
App., 170 S.W.2d 174, 178.
As to ordinary "Care," "Diligence," "Negligence,"
see those titles.
Ordinary calling. Those things which are re-
peated daily or weekly in the course of business.
Ellis v. State, 5 Ga.App. 615, 63 S.E. 588.
Ordinary conveyances. Those deeds of transfer
which are entered into between two or more per-
sons, without an assurance in a superior court of
justice. Wharton.
Ordinary course of business. The transaction of
business according to the usages and customs of
the commercial world generally or of the particu-
lar community or (in some cases) of the particular
individual whose acts are under consideration.
Rison v. Knapp, 20 Fed.Cas. 835; Christianson v.
Farmers' Warehouse Ass'n, 5 N.D. 438, 67 N.W.
300, 32 L.R.A. 730.
Ordinary dangers incident to employment.
Those commonly and usually pertaining to and in-
cident to it, which a reasonably prudent person
might anticipate, and do not include danger by acts
of negligence, unless habitual and known to the
servant. Chicago, R. I. & G. Ry. Co. v. Smith, Tex.
Civ.App., 197 S.W. 614, 618.
Ordinary expense. An expense is "ordinary" if
it is in an ordinary class, if in the ordinary course
of the transaction of municipal business or the
maintenance of municipal property it may and is
likely to become necessary; and it will be assumed
that if by law a specific duty is imposed, and the
Black's Law Dictionary Revised 4th Ed.-79
mode of performance is prescribed, so that no
discretion is left with the officer, the expense nec-
essarily incurred in discharging the duty is a
"necessary expense." Dexter Horton Trust &
Savings Bank v. Clearwater County, D.C.Idaho,
235 F. 743, 750; Arthur v. Horwege, 28 Cal.App.
738, 153 P. 980, 981; State v. Carter, 31 Wyo. 401,
226 P. 690, 693.
Ordinary handling. As in a railroad's baggage
tariff, providing that cases marked "Fragile" and
likely to be damaged by ordinary handling will
not be accepted, except at owner's risk, means
merely ordinary wear and tear necessarily inci-
dental to transportation of such articles, where
reasonable care is used. Perkins v. New York, N.
H. & H. R. Co., 232 Mass. 336, 122 N.E. 306, 307.
Ordinary hazards of occupation. Those arising
without negligence on part of master. Chesa-
peake & 0. Ry. Co. v. Coleman, 220 Ky. 64, 294
S.W. 809, 810.
Ordinary inspection. As applied to railroad
equipment. That degree of care and of inspection
which ordinarily prudent railroad companies, their
officers and employees, commonly use under simi-
lar circumstances. Canadian Northern Ry. Co. v.
Senske, C.C.A.Minn., 201 F. 637, 642.
Ordinary kerosene. The kerosene sold in the
open market, kerosene of a lawful grade and quali-
ty ordinarily sold for the general use of the public
for illuminating purposes. Standard Oil Co. v.
Reagan, 15 Ga.App. 571, 84 S,E. 69, 76.
Ordinary persons. Men of ordinary care and
diligence in relation to any particular thing. Ford
v. Engleman, 118 Va. 89, 86 S.E. 852, 855.
Ordinary proceeding. Such a proceeding as was
known to the common law and was formerly con-
ducted in accordance with the proceedings of the
common-law courts, and as is generally known un-
der the modern Codes to be such a proceeding as
is started by the issuance of a summons, and re-
sults in a judgment enforceable by execution.
Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1084,
L.R.A.1915D, 754.
Ordinary repairs. Such as are necessary to
make good the usual wear and tear or natural and
unavoidable decay and keep the property in good
condition. Abell v. Brady, 79 Md. 94, 28 A. 817;
Clark Civil Tp. v. Brookshire, 114 Ind. 437, 16 N.E.
132; Syracuse Malleable Iron Works v. Travelers'
Ins. Co., 94 Misc. 411, 157 N.Y.S. 572, 574; Farm-
ers' Handy Wagon Co. v. Casualty Co. of America,
184 Iowa, 773, 169 N.W. 178; Springfield Light,
Heat & Power Co. v. Philadelphia Casualty Co.,
184 Ill.App. 175, 178.
Ordinary risks. Those incident to the business,
and do not imply the result of the master's negli-
gence. The expression "extraordinary risks" is
generally used to describe risks arising from the
negligence of the master, and they are generally
held not to be assumed unless known or obvious.
Emanuel v. Georgia & F. Ry. Co., 142 Ga. 543, 83
S.E. 230, 231; Arundell v. American Oilfields Co.,
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31 Cal.App. 218, 160 P. 159, 165; Emerick v. Slavo-
nian Roman Greek Catholic Union, 93 N.J.Law,
282, 108 A. 223; Neary v. Georgia Public Service
Co., 27 Ga.App. 238, 107 S.E. 893, 896.
Ordinary seaman. A sailor who is capable of
performing the ordinary or routine duties of a
seaman, but who is not yet so proficient in the
knowledge and practice of all the various duties
of a sailor at sea as to be rated as an "able" sea-
man.
Ordinary services of administrators include all
the services incident to the closing and distribution
of an estate, and not merely the receiving and
disbursing of the funds and to justify an allowance
of further compensation the administrator must
have rendered services of an extraordinary charac-
ter necessary to the protection of the estate, and,
if he employs another to perform services which
he is required to perform under the law, he cannot
charge such services as an expense of administra-
tion. In re Carmody's Estate, 163 Iowa, 463, 145
N.W. 16, 17.
Ordinary skill in an art. That degree of skill
which men engaged in that particular art usually
employ; not that which belongs to a few men only,
of extraordinary endowments and capacities. Bal-
timore Baseball Club Co. v. Pickett, 78 Md. 375,
28 A. 279, 22 L.R.A. 690, 44 Am.St.Rep. 304. Bur-
richter v. Bell, 196 Iowa 529, 194 N.W. 947, 948.
Ordinary travel. Moving a house along a village
street is not using the street for the purpose of
ordinary travel; and the statutory requirement
that a telephone company shall locate its lines so
as not to interfere with the safety and convenience
of "ordinary travel" does not make it the duty of
the company to remove its wires from the street
to permit the passage of a house along the same.
Collar v. Bingham Lake Rural Telephone Co., 132
Minn. 110, 155 N.W. 1075, 1076, L.R.A.1916C, 1249.
Ordinary written law. Law made, within consti-
tutional restrictions, by the Legislature. State v.
Marcus, 160 Wis. 354, 152 N.W. 419, 422.
ORDINATION. Ceremony by which a bishop
confers on a person the privileges and powers nec-
essary for the execution of sacerdotal functions
in the church. Phillim.Ecc.Law, 110.
ORDINATIONE CONTRA SERVIENTES. A writ
that lay against a servant for leaving his master
contrary to the ordinance of St. 23 & 24 Edw. III.
Reg.Orig. 189.
ORDINATUM EST. In old practice. It is order-
ed. The initial words of rules of court when enter-
ed in Latin.
ORDINE PLACITANDI SERVATO, SERVATUR
ET JUS. When the order of pleading is observ-
ed, the law also is observed. Co.Litt. 303a; Broom,
Max. 188.
ORDINES. A general chapter or other solemn
convention of the religious of a particular order.
ORDINES MAJORES ET MINORES. In ecclesi-
astical law. The holy orders of priest, deacon,
and subdeacon, any of which qualified for pre-
sentation and admission to an ecclesiastical dignity
or cure were called "ordines majores;" and the
inferior orders of chanters, psalmists, ostiary,
reader, exorcist, and acolyte were called "ordines
minores." Persons ordained to the ordines min-
ores had their prima tonsura, different from the
tonsura clericalis. Cowell.
ORDINIS BENEFICIUM. Lat. In the civil law.
The benefit or privilege of order; the privilege
which a surety for a debtor had of requiring that
his principal should be discussed, or thoroughly
prosecuted, before the creditor could resort to him.
Nov. 4, c. 1; Heinecc.Elem. lib. 3, tit. 21, § 883.
ORDINUM FUGITIVI. In old English law.
Those of the religious who deserted their houses,
and, throwing off the habits, renounced their par-
ticular order in contempt of their oath and other
obligations. Paroch.Antiq. 388.
ORDO. Lat. That rule which monks were ob-
liged to observe. Order; regular succession. An
order of a court.
ORDO ALBUS. The white friars or Augustines.
Du Cange.
ORDO ATTACHIAMENTORUM. In old practice.
The order of attachments. Fleta, lib. 2, c. 51, §
12.
ORDO GRISEUS. The gray friars, or order of
Cistercians. Du Cange.
ORDO JUDICIORUM. In the canon law. The or-
der of judgments; the rule by which the due
course of hearing each cause was prescribed. 4
Reeve, Eng.Law, 17.
ORDO NIGER. The black friars, or Benedictines.
The Cluniacs likewise wore black. Du Cange.
ORDONNANCE. Fr. In French law, an ordi-
nance; an order of a court; a compilation or sys-
tematized body of law relating to a particular sub-
ject-matter, as, commercial law or maritime law.
Particularly, a compilation of the law relating
to prizes and captures at sea. Coolidge v. Inglee,
13 Mass. 43.
ORE-LEAVE. A license or right to dig and take
ore from land. Ege v. Kille, 84 Pa. 340.
ORE TENUS. Lat. By word of mouth; orally.
Pleading was anciently carried on ore tenus, at
the bar of the court. 3 Bl.Comm. 293.
ORFGILD. In Saxon law. The price or value of
a beast. A payment for a beast. The payment
or forfeiture of a beast. A penalty for taking
away cattle. Spelman.
ORGANIC ACT. An act of congress conferring
powers of government upon a territory. In re
Lane, 10 S.Ct. 760, 135 U.S. 443, 34 L.Ed. 219.
A statute by which a municipal corporation is
organized and created is its "organic act" and the
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ORIGINAL
limit of its power, so that all acts beyond the scope
of the powers there granted are void. Tharp v.
Blake, Tex.Civ.App., 171 S.W. 549, 550.
ORGANIC LAW. The fundamental law, or con-
stitution, of a state or nation, written or unwrit-
ten; that law or system of laws or principles
which defines and establishes the organization of
its government. St. Louis v. Dorr, 145 Mo. 466, 46
S.W. 976, 42 L.R.A. 686, 68 Am.St.Rep. 575.
ORGANIZE. To establish or furnish with or-
gans; to systematize; to put into working order;
to arrange in order for the normal exercise of its
appropriate functions. City of Beaumont v. City
of Beaumont Independent School Dist., Tex.Civ.
App., 164 S.W.2d 753, 756.
The word "organize," as used in railroad and other
charters, ordinarily signifies the choice and qualification of
all necessary officers for the transaction of the business of
the corporation. This is usually done after all the capital
stock has been subscribed for. New Haven & D. R. Co. v.
Chapman, 38 Conn. 66.
ORGANIZED COUNTY. A county which has its
lawful officers, legal machinery, and means for
carrying out the powers and performing the duties
pertaining to it as a quasi municipal corporation.
In re Section No. 6, 66 Minn. 32, 68 N.W. 323; City
of Beaumont v. City of Beaumont Independent
School Dist., Tex.Civ.App., 164 S.W.2d 753, 757.
ORGILD. In Saxon law. Without recompense;
as where no satisfaction was to be made for the
death of a man killed, so that he was judged law-
fully slain. Spelman.
ORIGINAL. Primitive; first in order; bearing
its own authority, and not deriving authority
from an outside source; as original jurisdiction,
original writ, etc. As applied to documents, the
original is the first copy or archetype; that from
which another instrument is transcribed, copied,
or imitated. Arenson v. Jackson, 97 Misc.Rep.
606, 162 N.Y.S. 142, 143; State v. Lee, 173 La.
770, 138 So. 662.
A carbon impression of a letter written on a typewriter,
made by the same stroke of the keys as the companion
impression, is an "original." Either impression is primary
evidence of the contents of the letter, and notice to produce
the original mailed letter in order to introduce one of the
retained copies in evidence is not necessary. U. S. Fire
Ins. Co. of City of New York v. L. C. Adam Mercantile Co.,
117 Old. 73, 245 P. 885, 887.
Original appointment. Within statute provid-
ing for suspension of civil servants in inverse
order of original appointment, means appoint.
ment for probationary term ripening into perma-
nent appointment, and not mere provisional or
temporary appointment. Civil Service Law, §
31; Const. art. 5, § 6, amended in 1929. Koso v.
Greene, 260 N.Y. 491, 184 N.E. 65, 66.
Original bill. In equity pleading. A bill which
relates to some matter not before litigated in
the court by the same persons standing in the
same interests. Mitf.Eq.P1. 33; Christmas v. Rus-
sell, 14 Wall. 69, 20 L.Ed. 762. In old practice.
The ancient mode of commencing actions in the
English court of king's bench. See Bill.
Original charter. In Scotch law. One by which
the first grant of land is made. On the other
hand, a charter by progress is one renewing
the grant in favor of the heir or singular succes-
sor of the first or succeeding vassals. Bell.
Original contractor. One who for a fixed price
agrees with owner to perform certain work
or furnish certain material. East Arkansas Lum-
ber Co. v. Bryant, Mo.App., 247 S.W. 496, 497;
Hihn-Hammond Lumber Co. v. Elsom, 171 Cal.
570, 154 P. 12, 13, Ann.Cas.1917C, 798.
Original conveyances. Those conveyances at
common law, otherwise termed "primary," by
which a benefit or estate is created or first arises-,
comprising feoffments, gifts, grants, leases, ex-
changes, and partitions. 2 Bl.Comm. 309.
Original entry. The first entry of an item
of an account made by a trader or other person
in his account-books, as distinguished from en-
tries posted into the ledger or copied from other
books. Keller Electric Co. v. Burg, 140 Minn. 360,
168 N.W. 98; Shea v. Biddle Improvement Co., 188
Iowa, 952, 176 N.W. 948, 949; Lewis Mears Co. v.
Norfolk County Creamery, 48 R.I. 221, 137 A. 149,
150.
When multiplicate instruments are made at one writing,
each is "original entry," as regards best evidence rule.
Gus Dattilo Fruit Co. v. Louisville & N. R. Co., 238 Ky.
322, 37 S.W.2d 856, 858.
Original estates. See Estate.
Original evidence.  An original document,
writing, or other material object introduced in
evidence as distinguished from a copy of it or
from extraneous evidence of its content or pur-
port. Or.Laws, 1920, § 691 (Code 1930, § 9-106).
Original inventor. In patent law. A pion-
eer in the art; one who, evolves the original idea
and brings it to some successful, useful and tangi-
ble result; as distinguished from an improver.
Norton v. Jensen, 33 C.C.A. 141, 90 F. 415.
Original jurisdiction. Jurisdiction in the first
instance; jurisdiction to take cognizance of a
cause at its inception, try it, and pass judgment
upon the law and facts. Distinguished from appel-
late jurisdiction.
Original package. A package prepared for
interstate or foreign transportation, and remain-
ing in the same condition as when it left the ship-
per, that is, unbroken and undivided; a package
of such form and size as is used by producers or
shippers for the purpose of securing both conven-
ience in handling and security in transportation of
merchandise between dealers in the ordinary
course of actual commerce. Austin v. Tennes-
see, 21 S.Ct. 132, 179 U.S. 343, 45 L.Ed. 224; Hal-
ey v. State, 42 Neb. 556, 60 N.W. 962, 47 Am.St.Rep.
718. Mexican Petroleum Corporation v. City of
South Portland, 121 Me. 128, 115 A. 900, 901, 26 A.
L.R. 965.
Original plat. The first plat of a town from
the subsequent additions, and "original town" is
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ORIGINAL
employed in the same way. State v. City of Vic-
toria, 97 Kan. 638, 156 P. 705, 708.
Original promise. An original promise, with-
out the statute of frauds, is one in which the
direct and leading object of the promisor is to
further or promote some purpose or interest of his
own, although the incidental effect may be the
payment of the debt of another. Umpqua Valley
Bank of Roseburg v. Wilson, 120 Or. 396, 252 P.
563, 565; Olson v. McQueen, 24 N.D. 212, 139 N.W.
522, 524.
Original process. See Process.
Original vein. Is used to describe the differ-
ent veins found within the same surface bounda-
ries and may refer to the relative importance or
value of the different veins, or the relations to
each other, or to the time of discovery, but most
frequently is used to distinguish between the dis-
covery vein and other veins within the same sur-
face boundaries. Northport Smelting & Refining
Co. v. Lone Pine-Surprise Consol. Mines Co., D.C.
Wash., 271 F. 105, 111.
Original Writ. See Writ.
Single original. An original instrument which
is executed singly, and not in duplicate.
ORIGINALIA. In English law. Transcripts sent
to the remembrancer's office in the exchequer out
of the chancery, distinguished from recorda, which
contain the judgments and pleadings in actions
tried before the barons. The treasurer-remem-
brancer's office was abolished in 1833.
ORIGINE PROPRIA NEMINEM POSSE VOLUN-
TATE SUA EXIMI MANIFESTUM EST. It is
evident that no one is able of his own pleasure,
to do away with his proper origin. Code 10, 38, 4;
Broom, Max. 77.
ORIGO REI INSPICI DEBET. The origin of a
thing ought to be regarded. Co.Litt. 248b.
ORNEST. In old English law. The trial by bat-
tle, which does not seem to have been usual in
England before the time of the Conqueror, though
originating in the kingdoms of the north, where
it was practiced under the name of "holmgang,"
from the custom of fighting duels on a small is-
land or holm. Wharton.
ORPHAN. Any person (but particularly a minor
or infant) who has lost both (or one) of his or
her parents. More particularly, a fatherless child.
Chicago Guaranty Fund Life Soc. v. Wheeler, 79
Ill.App. 241; Stewart v. Morrison, 38 Miss. 419;
Downing v. Shoenberger, 9 Watts, Pa., 299.
ORPHANAGE PART. That portion of an intes-
tate's effects which his children were entitled to
by the custom of London. This custom appears to
have been a remnant of what was once a general
law all over England, namely, that a father should
not by his will bequeath the entirety of his per-
sonal estate away from his family, but should
leave them a third part at least, called the "chil-
dren's part," corresponding to the "bairns' part"
or legitim of Scotch law, and also (although not
in amount) to the legitima quarta of Roman law.
(Inst. 2, 18.) This custom of London was abol-
ished by St. 19 & 20 Vict. c. 94. Brown.
ORPHANOTROPlit In the civil law. Managers
of houses for orphans.
ORPHANS' COURT. In American law. Courts
of probate jurisdiction, in Delaware, Maryland,
New Jersey, and Pennsylvania.
ORTELLI. The claws of a dog's foot. Kitch.
ORTHOPEDIST. A surgeon engaged in branch
of medicine dealing with correction of deformities
and chronic diseases of the joints and spine. San-
som v. Ross-Loos Medical Group, 57 Cal.App.2d
549, 134 P.2d 927, 931.
ORTOLAGIUM. A garden plot or hortilage.
ORWIGE, SINE WITA. In old English law.
Without war or feud, such security being provided
by the laws, for homicides under certain circum-
stances, against the foehth, or deadly feud, on the
part of the family of the slain. Anc.Inst.Eng.
OSCULI, JUS. The right to kiss. According to
the old phraseology there could be no marriage
within the circle of the jus osculi—the seventh
degree. Second cousins (sixth degree) could not
marry. Muirhead, Rom.L. 26.
OSTENDIT VOBIS. Lat. In old pleading. Shows
to you. Formal words with which a demandant
began his count. Fleta, lib. 5, c. 38, § 2.
OSTENSIBLE AGENCY. An implied or pre-
sumptive agency, which exists where one, either
intentionally or from want of ordinary care, in-
duces another to believe that a third person is
his agent, though he never in fact employed him.
First Nat. Bank v. Elevator Co., 11 N.D. 280, 91
N.W. 437. It is, strictly speaking, no agency at
all, but is in reality based entirely upon estoppel.
Hartford Accident & Indemnity Co. v. Bear Butte
Valley Bank, 63 S.D. 262, 257 N.W. 642.
OSTENSIBLE AUTHORITY. Such authority as
a principal, intentionally or by want of ordinary
care, causes or allows a third person to believe
that the agent possesses. National Cash Register
Co. v. Wichita Frozen Food Lockers, Tex.Civ.App.,
172 S.W.2d 781, 787.
OSTENSIBLE PARTNER. One whose name ap-
pears to the world as such, though he have no in-
terest in the firm. Civ.Code 1910, § 3157. Roberts
v. Curry Grocery Co., 18 Ga.App. 53, 88 S.E. 796.
OSTENSIO. A tax anciently paid by merchants,
etc., for leave to show or expose their goods for
sale in markets. Du Cange.
OSTENTUM. Lat. In the civil law. A mon-
strous or prodigious birth. Dig. 50, 16, 38.
OSTEOPATH. One who practices osteopathy.
State v. Chase, 76 N.H. 553, 86 A. 144.
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OUT-BOUNDARIES
OSTEOPATHY. A method or system of treating
various diseases of the human body without the
use of drugs, by manipulation applied to various
nerve centers, rubbing, pulling, and kneading parts
of the body, flexing and manipulating the limbs,
and the mechanical readjustment of any bones,
muscles, or ligaments not in the normal position,
with a view to removing the cause of the disorder
and aiding the restorative force of nature in cases
where the trouble originated in misplacement of
parts, irregular nerve action, or defective circula-
tion. State v. Liffring, 61 Ohio St. 39, 55 N.E.
168, 76 Am.St.Rep. 358; Parks v. State, 159 Ind.
211, 64 N.E. 862, 59 L.R.A. 190.
A system of treatment based on the theory that
diseases are chiefly due to deranged mechanism
of the bones, nerves, blood vessels, and other tis-
sues, and can be remedied by manipulations of
these parts. Special attention is given to the re-
adjustment of any bones, muscles, or ligaments
not in the normal position. Waldo v. Poe, D.C.
Wash., 14 F.2d 749, 751; Arnold v. Schmidt, 155
Wis. 55, 143 N.W. 1055, 1058; State ex rel. Wheat v.
Moore, 154 Kan. 193, 117 P.2d 598, 602. The term
does not include the practice of optometry. Ex
parte Rust, 181 Cal. 73, 183 P. 548, 550, nor, at
least under some statutes, the practice of medicine
or surgery. State v. Sawyer, 36 Idaho, 814, 214
P. 222.
OSTIA REGNI. Lat. Gates of the kingdom. The
ports of the kingdom of England are so called by
Sir Matthew Hale. De Jure Mar. pt. 2, c. 3.
OSTIUM ECCLESL 2E. Lat. In old English law.
The door or porch of the church, where dower was
anciently conferred.
OSWALD'S LAW. The law by which was effected
the ejection of married priests, and the introduc-
tion of monks into churches, by Oswald, bishop of
Worcester, about A.D. 964. Wharton.
OSWALD'S LAW HUNDRED. An ancient hun-
dred in Worcestershire, so called from Bishop Os-
wald, who obtained it from King Edgar, to be giv-
en to St. Mary's Church in Worcester. It was
exempt from the sheriff's jurisdiction, and com-
prehends 300 hides of land. Camd. Brit.
OTER LA TOUAILLE. In the laws of Oleron. To
deny a seaman his mess. Literally, to deny the
table-cloth or victuals for three meals.
OTHER. Different or distinct from that already
mentioned; additional, or further. City of Ft.
Smith v. Gunter, 106 Ark. 371, 154 S.W. 181, 183;
State v. Blumenthal, 136 Ark. 532, 203 S.W. 36, 37,
L.R.A.1918E, 482.
Following an enumeration of particular classes
"other" must be read as "other such like," and
includes only others of like kind and character.
Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 697,
L.R.A.1918E, 639; Baker v. Baker, 82 N.J.Eq. 150,
91 A. 729, 730; George H. Dingledy Lumber Co. v.
Erie R. Co., 102 Ohio St. 236, 131 N.E. 723, 726.
OTHERWISE. In a different manner; in anoth-
er way, or in other ways. Safe Deposit & Trust
Co. of Baltimore v. New York Life Ins. Co., D.C.
Md., 14 F.Supp. 721, 726.
OTHESWORTHE. In Saxon law. Oathsworth;
oathworthy; worthy or entitled to make oath.
Bract. fols. 185, 292b.
OUGHT. This word, though generally directory
only, will be taken as mandatory if the context
requires it. Pract. fol. 185, 292b; Life Ass'n v.
St. Louis County Assessors, 49 Mo. 518.
OUNCE. The twelfth part; the twelfth part of
a pound troy or the sixteenth part of a pound
avoirdupois.
OUNCE LANDS. Certain districts or tracts of
lands in the Orkney Islands were formerly so
called, because each paid an annual tax of one
ounce of silver.
OURLOP. The lierwite or fine paid to the lord
by the inferior tenant when his daughter was de-
bauched. Cowell.
OUST. To put out; to eject; to remove or de-
prive; to deprive of the possession or enjoyment
of an estate or franchise.
OUSTER. In practice. A putting out; dispos-
session; amotion of possession. A species of in-
juries to things real, by which the wrong-doer
gains actual occupation of the land, and compels
the rightful owner to seek his legal remedy in or-
der to gain possession. 2 Crabb, Real Prop. p.
1063, § 2454a; Pursel v. Reading Iron Co., C.C.A.
Pa., 232 F. 801, 807; Lucas v. Ferris, 95 Conn.
619, 112 A. 165, 167; Hardman v. Brown, 77 W.
Va. 478, 88 S.E. 1016, 1019.
Actual Ouster. Does not mean a physical evic-
tion, but a possession attended with such circum-
stances as to evince a claim of exclusive right and
title, and a denial of the right of the other tenants
to participate in the profits. Burns v. Byrne, 45
Iowa 287; Miller v. State, 121 Conn. 43, 183 A.
17, 20.
OUSTER LE MAIN. L. Fr. Literally, out of the
hand.
1. A delivery of lands out of the king's hands
by judgment given in favor of the petitioner in a
monstrans de droit.
2. A delivery of the ward's lands out of the
hands of the guardian, on the former arriving at
the proper age, which was twenty-one in males,
and sixteen in females. Abolished by 12 Car. II.
c. 24. Mozley & Whiteley.
OUSTER LE MER. L. Fr. Beyond the sea; a
cause of excuse if a person, being summoned, did
not appear in court. Cowell.
OUT-BOUNDARIES. A term used in early Mex-
ican land laws to designate certain boundaries
within which grants of a smaller tract, which des•
ignated such out-boundaries, might be located by
the grantee. U. S. v. Maxwell Land Grant Co., 7
S.Ct. 1015, 121 U.S. 325, 30 L.Ed. 949.
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OUT OF BENEFIT
OUT OF BENEFIT. A term descriptive of insur-
ance policy holders who have been suspended for
nonpayment of premiums. American Nat. Ins.
Co. v. Otis, 122 Ark. 219, 183 S.W. 183, 184, L.R.A.
1916E, 875.
OUT OF COURT. He who has no legal status in
court is said to be "out of court," i. e., he is not be-
fore the court. Thus, when the plaintiff in an ac-
tion, by some act of omission or commission,
shows that he is unable to maintain his action, he
is frequently said to put himself "out of court."
Brown. The expression is colloquially applied to
a litigant party when his case breaks down, equiv-
alent to saying, "he has not a leg to stand on;"
Moz. & W.
The phrase is also used with reference to agreements and
transactions in regard to a pending suit which are ar-
ranged or take place between the parties or their counsel
privately and without being referred to the judge or court
for authorization or approval. Thus, a case which is corn-
promised, settled, and withdrawn by private agreement of
the parties, after its institution, is said to be settled "out
of court." So attorneys may make agreements with refer-
ence to the conduct of a suit or the course of proceedings
therein; but if these are made "out of court," that is,
not made in open court or with the approval of the judge,
it is a general rule that they will not be noticed by the
court unless reduced to writing. Welsh v. Blackwell, 14
N. J. Law, 345.
OUT OF POCKET RULE. Determination for
damages for fraudulent misrepresentations which
permits recovery of difference between price paid
and actual value of property acquired. Zeliff v.
Sabatino, 104 A.2d 54, 55, 15 N.J. 70; Zeliff v.
Sabatino, 98 A.2d 679, 681, 27 N.J.Super. 13;
Jacobs v. Levin, 137 P.2d 500, 501, 58 Cal.App.2d
Supp. 913.
Also called out-of-pocket loss rule.
OUT OF REPAIR. In a West Virginia statute re-
lating to streets, sidewalks, and the like, this term
means unsafe for reasonable use in the ordinary
modes of travel by day or night, whether the dan-
ger exists overhead or on the surface.
OUT OF TERM. At a time when no term of the
court is being held; in the vacation or interval
which elapses between terms of the court. See
McNeill v. Hodges, 99 N.C. 248, 6 S.E. 127.
OUT OF THE STATE. In reference to rights, lia-
bilities, or jurisdictions arising out of the common
law, this phrase is equivalent to "beyond sea,"
which see.
In other connections, it means physically beyond
the territorial limits of the particular state in
question, or constructively so, as in the case of a
foreign corporation. Foster v. Givens, 67 F. 684,
14 C.C.A. 625; Larson v. Aultman & Taylor Co.,
80 Wis. 281, 56 N.W. 915, 39 Am.St.Rep. 893. But
a foreign corporation maintaining an agent within
the state is not deemed to be "out of the state,"
within various statutes. Hamilton v. North. Pac.
S. S. Co., 84 Or. 71, 164 P. 579, 581; American
Surety Co. of New York v. Blake, 45 Idaho 159,
261 P. 239, 240.
OUT OF TIME. A mercantile phrase applied to
a ship or vessel that has been so long at sea as to
justify the belief of her total loss. In another
sense, a vessel is said to be out of time when, corn-
puted from her known day of sailing, the time
that has elapsed exceeds the average duration of
similar voyages at the same season of the year.
The phrase is identical with "missing ship." 2
Duer, Ins. 469.
OUTAGE. A tax or charge formerly imposed by
the state of Maryland for the inspection and mark-
ing of hogsheads of tobacco intended for export.
Turner v. Maryland, 2 S.Ct. 44, 107 U.S. 38, 27 L.
Ed. 370.
OUTBUILDING. Something used in connection
with a main building. Com. v. Intoxicating Liq-
uors, 140 Mass. 287, 3 N.E. 4. A small building
appurtenant to a main building, and generally sep-
arated from it; an outhouse. Bruce v. McClees,
110 N.J.Eq. 92, 158 A. 849, 850.
OUTCAST. This term, applied to a person, has
been held to be libelous per se, because it repre-
sents him as being a degraded and disgraced char-
acter. Herald Pub. Co. v. Feltner, 158 Ky. 35, 164
S.W. 370, 372.
OUTCROP. In mining law. The edge of a stra-
tum which appears at the surface of the ground;
that portion of a vein or lode which appears at
the surface or immediately under the soil and sur-
face debris. Duggan v. Davey, 4 Dak. 110, 26
N.W. 887; Stevens v. Williams, 23 Fed.Cas. 40.
The term is not, in itself, definitive of quantity or
area in respect of the mineral involved. Sloss-
Sheffield Iron & Steel Co. v. Payne, 186 Ala. 341,
64 So. 617, 618.
OUTER BAR. In the English courts, barristers
at law have been divided into two classes, viz.,
king's counsel, who are admitted within the bar of
the courts, in seats specially reserved for them-
selves, and junior counsel, who sit without the bar;
and the latter are thence frequently termed bar-
risters of the "outer bar," or "utter bar," in con-
tradistinction to the former class. Brown.
OUTER DOOR. In connection with the rule, stat-
utory or otherwise, forbidding an officer to break
open the outer door to serve civil process, this
term designates the door of each separate apart-
ment, where there are different apartments having
a common outer door. Fourette v. Griffin, 92
Conn. 388, 103 A. 123, 124, L.R.A.1918D, 876;
Schork v. Calloway, 205 Ky. 346, 265 S.W. 807, 808.
OUTER HOUSE. The name given to the great
hall of the parliament house in Edinburgh, in
which the lords ordinary of the court of session
sit as single judges to hear causes. The term is
used colloquially as expressive of the business
done there in contradistinction to the "Inner
House," the name given to the chambers in which
the first and second divisions of the court of ses-
sion hold their sittings. Bell.
OUTFANGTHEF. A liberty or privilege in the
ancient common law, whereby a lord was enabled
to call any man dwelling in his manor, and taken
for felony in another place out of his fee, to judg-
ment in his own court. Du Cange. See Infang-
enthef.
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OUTSIDE
OUTFIT. Originally, as applying to ships, those
objects connected with a ship which were neces-
sary for the sailing of her, and without which she
would not in fact be navigable. But in ships en-
gaged in whaling voyages the word has acquired
a much more extended signification. Macy v.
Whaling Ins. Co., 9 Metc. (Mass.) 364.
An allowance made by the 'United States gov-
ernment to one of its diplomatic representatives,
as an ambassador, a minister plenipotentiary, or
charge d'affaires, but not a consul, for the ex-
pense of his equipment on going from the United
States to any foreign country.
Equipment. U. S. v. Richard & Co., 8 Ct.Cust.
App. 231, 233.
OUTGO. In taxation, a flow of disservice (nega-
tive service) or negative income ;—distinguished
from "income," or the flow of capital service. U.
S. v. Guggenheim Exploration Co., D.C.N.Y., 238 F.
231, 234.
OUTHEST, or OUTHOM. A calling men out to
the army by sound of horn. Jacob. •
OUTHOUSE. Any house necessary for the pur-
poses of life, in which the owner does not make
his constant or principal residence. State v.
O'Brien, 2 Root (Conn.) 516. A building subservi-
ent to, yet distinct from, the principal mansion-
house, located either within or without the curtil-
age. State v. Brooks, 4 Conn. 446; Jones v. Hun-
gerford, 4 Gill. & J. (Md.) 402, 2 Cr. & D. 479.
Parks v. State, 22 Ga.App. 621, 96 S.E. 1050, 1051.
A smaller or subordinate building connected with a dwel-
ling, usually detached from it and standing at a little dis-
tance from it, not intended for persons to live in, but to
serve some purpose of convenience or necessity; as a barn,
a dairy, a toolhouse, and the like.
Under statutes, such a building may be subservient to
and adjoin a business building as well as a dwelling house.
State v. Marks, 45 Idaho, 92, 260 P. 697, 698.
OUTLAND. The Saxon thanes divided their her-
editary lands into inland, such as lay nearest their
dwelling, which they kept to their own use, and
outland, which lay beyond the demesnes, and was
granted out to tenants, at the will of the lord, like
copyhold estates. This outland they subdivided
into two parts. One part they disposed among
those who attended their persons, called "theo-
dans," or lesser thanes; the other part they allot-
ted to their husbandmen, or churls. Jacob.
OUTLAW. In English law. One who is put out
of the protection or aid of the law. 22 Viner, Abr.
316; Bacon Abr. Outlawry; 2 Sell.Pr. 277; Doctr.
Plac. 331; 3 Bla.Comm. 283, 284.
Popularly, a person violating the law. Oliveros
v. Henderson, 116 S.C. 77, 106 S.E. 855, 859.
OUTLAWED. With reference to a debt means
barred by the statute of limitations. Brady v.
Tarr, 145 Pa.Super. 316, 21 A.2d 131, 133.
OUTLAWRY. In English law. A process by
which a defendant or person in contempt on a civil
or criminal process was declared an outlaw. If
for treason or felony, it amounted to conviction
and attainder. Stim.Law Gloss. See Respublica
v. Doan, 1 Dall. (Pa.) 86, 1 L.Ed. 47; Dale County
v. Gunter, 46 Ala. 138; Drew v. Drew, 37 Me. 391;
3 Bla.Comm. 283; Co.Litt. 128. Outlawry for a
misdemeanor does not amount to a conviction for
the offense itself. 4 Steph.Com. 317. The "minor
outlawry" for "trespasses" did not involve sen-
tence of death; otherwise of the higher crimes. 2
Poll. & Maitl. 581.
In the United States, the process of outlawry
seems to be unknown, at least in civil cases.
Dane, Abr. ch. 193 a, 34; Hall v. Lanning, 91 U.S.
160, 23 L.Ed. 271; 37 Harvard Law Review, 799.
OUTLINE. The line which marks the outer lim-
its of an object or figure; an exterior line or edge;
contour. Taggart v. Great Northern Ry. Co., D.C.
Wash., 208 F. 455, 456.
OUTLOT. In early American land law, (particu-
larly in Missouri,) a lot or parcel of land lying out-
side the corporate limits of a town or village but
subject to its municipal jurisdiction or control.
Kissell v. St. Louis Public Schools, 16 Mo. 592;
St. Louis v. Toney, 21 Mo. 243; Eberle v. St. Louis
Public Schools, 11 Mo. 265; Vasquez v. Ewing, 42
Mo. 256.
OUTPARTERS. Stealers of cattle. Cowell.
OUTPUTERS. Such as set watches for the rob-
bing of any manor-house. Cowell.
OUTRAGE. A grave injury; injurious violence;
in general, any species of serious wrong offered
to the person, feelings, or rights of another. Mc-
Kinley v. Railroad Co., 44 Iowa, 314, 24 Am.Rep.
748; Aldrich v. Howard, 8 R.I. 246; Mosnat v. Sny-
der, 105 Iowa, 500, 75 N.W. 356. Synonyms are
affront, insult, and abuse. State ex rel. and to
Use of Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d
132, 133.
OUTRIDERS. In English law. Bailiffs-errant
employed by sheriffs or their deputies to ride to
the extremities of their counties or hundreds to
summon men to the county or hundred court.
Wharton.
OUTRIGHT. Free from reserve or restraint; di-
rect; positive; down-right; altogether; entirely;
openly. Hughes v. First State Bank of Wagoner,
106 Okl. 146, 235 P. 1097, 1099.
OUTROPER. A person to whom the business of
selling by auction was confined by statute. 2 H.
Bl. 557.
OUTS. In banking parlance, are conditions or
warranties, failure to comply with which by the
prospect give the banker a right to escape from
a contract and to terminate negotiations. Cray,
McFawn & Co. v. Hegarty, Conroy & Co., D.C.N.Y.,
27 F.Supp. 93, 100.
OUTSETTER. In Scotch law. Publisher. 3 How.
State Tr. 603.
OUTSIDE. To the exterior of; without; outward
from. Union Fishermen's Co-operative Packing
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OUTSTANDING
Co. v. Shoemaker, 98 Or. 659, 193 P. 476, 480.
See, also, Frankel v. Massachusetts Bonding &
Ins. Co., Mo.App., 177 S.W. 775.
OUTSTANDING. Remaining undischarged; un-
paid; uncollected; as an outstanding debt. New
York Trust Co. v. Portland Ry. Co., 197 App.Div.
422, 189 N.Y.S. 346, 350. Constituting an effective
obligation; as, outstanding stock. Borg v. Inter-
national Silver Co., C.C.A.N.Y., 11 F.2d 147, 150;
Scheirich v. Otis-Hidden Co., 204 Ky. 289, 264 S.
W. 755, 756.
Existing as an adverse claim or pretension; not
united with, or merged in, the title or claim of the
party; as an outstanding title.
OUTSTANDING AND OPEN ACCOUNT. In leg-
al and commercial transactions it is an unsettled
debt arising from items of work and labor, goods
sold and delivered, and other open transactions,
not reduced to writing, and subject to future set-
tlement and adjustment and usually disclosed by
account books of the owner of the demand and
does not include express contracts or obligations
which have been reduced to writing such as bonds,
bills of exchange, or notes. Lee v. De Forest, 22
Ca1.App.2d 351, 71 P.2d 285, 291. Checotah Hard-
ware Co. v. Housel, 169 Okl. 112, 35 P.2d 966, 967.
OUTSTANDING CROP. One not harvested or
gathered. It is outstanding from the day it com-
mences to grow until gathered and taken away.
Sullins v. State, 53 Ala. 474.
OUTSTANDING TERM. A term in gross at law,
which, in equity, may be made attendant upon the
inheritance, either by express declaration or by
implication.
OUTSTROKE. To mine by outstroke is to take
out mineral from adjoining property through the
tunnels and shafts of the demised premises. Per-
cy La Salle Mining & Power Co. v. Newman Min-
ing, Milling & Leasing Co., D.C.Colo., 300 F. 141,
142.
OUTSUCKEN MULTURES. In Scotch law. Out-
town multures; multures, duties, or tolls paid by
persons voluntarily grinding corn at any mill to
which they are not thirled, or bound by tenure. 1
Forb.Inst. pt. 2, p. 140.
OUVERTURE DES SUCCESSIONS. In French
law. The right of succession which arises to one
upon the death, whether natural or civil, of an-
other.
OVE. L. Fr. With. Modern French avec.
OVELL. L. Fr. Equal.
OVELTY. In old English law. Equality.
OVER. Above; overhead. Detamore v. Hindley,
83 Wash. 322, 145 P. 462, 464. Through. Kynerd
v. Hulen, C.C.A.Tex., 5 F.2d 160, 161. More than;
in excess of. People v. Shupe, 306 Ill. 31, 137 N.E.
515, 516.
Continued;—sometimes written on one page or
sheet to indicate a continuation of matter on a
separate sheet. In re Johnston's Estate, 64 Cal.
App. 197, 221 P. 382, 384.
In conveyancing. The word Is used to denote
a contingent limitation intended to take effect on
the failure of a prior estate. Thus, in what is
commonly called the "name and arms clause" in
a will or settlement there is generally a proviso
that if the devisee fails to comply with the con-
dition the estate is to go to some one else. This is
a limitation or gift over. Wats.Comp.Eq. 1110;
Sweet.
OVER SEA. Beyond the sea; outside the limits
of the state or country. Gustin v. Brattle, Kirby,
Conn. 300. See Beyond Sea.
OVERAWE. To subjugate or restrain by awe, or
profound reverence. Collum v. State, 21 Ala.App.
220, 107 So. 35.
OVERBRAIDED. Of ropes, made by having a
certain number of strands laid over a center al-
ready braided. Macomber & Whyte Rope Co. v.
Hazard Mfg. Co., C.C.A.N.Y., 211 F. 976, 979.
OVERBREAK. In blasting, that portion of ma-
terial removed which is outside and beyond slopes
indicated by slope stakes. Porter v. State, 141
Wash. 51, 250 P. 449.
OVERCHARGE. Of public utilities, a charge col-
lected above a lawful tariff rate, a charge of more
than is permitted by law. Taylor-Williams Coal
Co. v. Public Utilities Commission of Ohio, 97-Ohio
St. 224, 119 N.E. 459, 460; Crook v. Baltimore & 0.
R. Co., 32 Ohio App. 263, 167 N.E. 899, 900. An
unreasonable or discriminatory charge. Postal
Telegraph-Cable Co. v. Associated Press, 228 N.Y.
370, 127 N.E. 256, 259; Cleveland, C., C. & St. L.
Ry. Co. v. Mills Bros., 101 Ohio St. 173, 128 N.E.
81, 82.
OVERCOME. As used in a statute providing that
a presumption may be overcome by other evidence,
this term is not synonymous with overbalance or
outweigh, but requires merely that such evidence
counterbalance the presumption, where the party
relying on it has the burden of proof. Hansen v.
Oregon-Washington R. & Na y . Co., 97 Or. 190, 191
P. 655, 656.
OVERCYTED, or OVERCYHSED. Proved guilty
or convicted. Blount.
OVERDRAFT. The act of checking out more
money than one has on deposit in a bank. Bank
of Jeanerette v. Druilhet, 149 La. 505, 89 So. 674,
678; State v. Larson, 119 Wash. 259, 205 P. 373,
374. It is in the nature of a loan made at the
request of the depositor, and implies a promise to
pay. Becker v. Fuller, 99 Misc.Rep. 672, 164 N.Y.S.
495.
OVERDRAW. To draw upon a person or a bank,
by bills or checks, to an amount in excess of the
funds remaining to the drawer's credit with the
drawee, or to an amount greater than what is due.
See State v. Jackson, 21 S.D. 494, 113 N.W. 880, 16
Ann.Cas. 87.
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OVERRULE
The term has a definite and well-understood
meaning. Money is drawn from the bank by him
who draws the check, not by him who receives
the money; and it is drawn upon the account of
the individual by whose check it is drawn, though
it be paid to and for the benefit of another. No one
can draw money from bank upon his own account,
except by means of his own check or draft, nor
can he overdraw his account with the bank in any
other manner. State v. Stimson, 24 N.J.Law, 478,
484.
OVERDUE. Due and more than due; delayed or
unpaid. Bliss v. California Co-op. Producers, Cal.
App., 156 P.2d 259, 260.
A negotiable instrument or other evidence of
debt is overdue when the day of its maturity is
past and it remains unpaid. La Due v. First Nat.
Bank, 31 Minn. 33, 16 N.W. 426.
A vessel is said to be overdue when she has not
reached her destination at the time when she
might ordinarily have been expected to arrive.
OVERFLOWED LANDS. Those that are covered
by nonnavigable waters (not including lands be-
tween high and low water mark of navigable
streams or bodies of water, nor lands covered
and uncovered by ordinary daily ebb and flow of
normal tides of navigable waters). Miller v. Bay-
To-Gulf, 141 Fla. 452, 193 So. 425, 427.
OVERHAUL. To inquire into; to review; to dis-
turb. "The merits of a judgment can never be
overhauled by an original suit." 2 H.B1. 414.
To examine thoroughly, as machinery, with a
view to repairs. Holloway v. Wheeler, Tex.Civ.
App., 261 S.W. 467, 468.
OVERHEAD. All administrative or executive
costs incident to the management, supervision, or
conduct of the capital outlay, or business;—dis-
tinguished from "operating charges," or those
items that are inseparably connected with the pro-
ductive end and may be seen as the work pro-
gresses, and are the subject of knowledge from
observation. Lytle, Campbell & Co. v. Somers,
Fitler & Todd Co., 276 Pa. 409, 120 A. 409, 410, 27
A.L.R. 41. Continuous expenses of a business:
the expenses and obligations incurred in con-
nection with operation; expenses necessarily in-
curred in organization. office expenses, engineer-
ing, inspection, supervision, and management dur-
ing construction; and general expenditures in
financial or industrial enterprise which cannot be
attributed to any one department or product, ex-
cluding cost of materials, labor, and selling. Guil-
lot v. State Highway Commission of Montana, 102
Mont. 14)9, 56 P.2d 1072, 1075.
"Overhead charges" is a term which, as applied
to a public service corporation, includes the ex-
pense that would necessarily be incurred in the
reproduction of the property; the legal expenses
of organization and expenses for office, engineer-
ing, inspection, supervision, and management dur-
ing construction; fire and casualty insurance, tax
es and interest during the period, contractors
profits, and other minor expenses of like chart ter.
Bonbright v. Geary, D.C.Ariz., 210 F. 44, 54.
OVERHERNISSA. In Saxon law. Contumacy or
contempt of court. Leg. IEthel, c. 25.
OVER-INSURANCE. See Double Insurance.
OVERISSUE. To issue in excessive quantity; to
issue in excess of fixed legal limits. Thus, "over-
issued stock" of a private corporation is capital
stock issued in excess of the amount limited and
prescribed by the charter or certificate of incor-
poration. Hayden v. Charter Oak Driving Park,
63 Conn. 142, 27 A. 232.
OVERLIVE. To survive; to live longer than an-
other. Finch, Law, b. 1, c. 3, no. 58; 1 Leon. 1.
OVERLOAD. To cause to bear too heavy a bur-
den; to load too heavily. But to say of a busi-
ness, such as an insurance business, that it is
overloaded, implies nothing defamatory on its face
in the sense of imputing dishonesty, lack of fair
dealing, want of fidelity, integrity, or business abil-
ity. Talbot v. Mack, 41 Nev. 245, 169 P. 25, 29..
OVERLYING RIGHT. Right of owner of land to
take water from ground underneath for use on
his land within basin or watershed. Right is based
on ownership of land and is appurtenant thereto.
City of Pasadena v. City of Alhambra, 207 P.2d
17, 28, 33 Ca1.2d 908.
OVERPLUS. What is left beyond a certain
amount; the residue; the surplus; the remainder
of a thing. Lyon v. Tomkies, 1 Mees. & W. 603.
OVERRATE. In its strictest signification, a rat-
ing by way of excess and not one which ought not
to have been made at all. 2 Ex. 352.
OVERREACHING CLAUSE. In a resettlement, a
clause which saves the powers of sale and leasing
annexed to the estate for life created by the orig-
inal settlement, when it is desired to give the ten-
ant for life the same estate and powers under the
resettlement. The clause is so called because it
provides that the resettlement shall be overreach-
ed by the exercise of the old powers. If the reset-
tlement were executed without a provision to this
effect, the estate of the tenant for life and the an-
nexed powers would be subject to any charges for
portions, etc., created under the original settle-
ment. 3 Da y .Conv. 489; Sweet.
OVERRIDE. An estate carved out of working
interest under an oil or gas lease. Youngblood v.
Seewald, D.C.Okl., 194 F.Supp. 417, 420.
OVERRIDING ROYALTY. As applied to an ex-
isting oil and gas lease is a given percentage of
the gross production payable to some person other
than the lessor or persons claiming under him.
Homestake Exploration Corporation v. Schoregge,
81 Mont. 604, 264 P. 388, 392. An interest carved
out of the lessee's share of the oil. Wright v.
Brush, C.C.A.Kan., 115 F.2d 265, 267.
OVERRULE. To supersede; annul; make void;
reject by subsequent action or decision. A judi-
cial decision is said to be overruled when a later
decision, rendered by the same court or by a su-
perior court in the same system, expresses a judg-
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OVERRULE
ment upon the same question of law directly op-
posite to that which was before given, thereby
depriving the earlier opinion of all authority as a
precedent. The term is not properly applied to
conflicting decisions on the same point by co-or-
dinate or independent tribunals. It also signifies
that a majority of the judges of a court have de-
cided against the opinion of the minority, in which
case the minority judges are said to be overruled.
To refuse to sustain, or recognize as sufficient,
an objection made in the course of a trial, as to
the introduction of particular evidence, etc.
OVERS. In the meat packing business, the in-
crease in the weight of meat resulting from salt
put on it. G. H. Hammond Co. v. Joseph Mercan-
tile Co., 144 Ark. 108, 222 S.W. 27, 28.
OVERSAMESSA. In old English law. A forfei-
ture for contempt or neglect in not pursuing a
malefactor. 3 Inst. 116.
OVERSEER. A superintendent or supervisor; a
public officer whose duties involve general super-
intendence of routine affairs.
OVERSEERS OF HIGHWAYS. The name given,
in some of the states, to a board of officers of a
city, township, or county, whose special function
is the construction and repair of the public roads
or highways.
OVERSEERS OF THE POOR. Persons appointed
or elected to take care of the poor with moneys
furnished to them by the public authority. Their
duties are regulated by local statutes.
OVERSMAN. In Scotch law. An umpire ap-
pointed by a submission to decide where two ar-
biters have differed in opinion, or he is named by
the arbiters themselves, under powers given them
by the submission. Bell.
OVERT. Open; manifest; public; issuing in ac-
tion, as distinguished from that which rests mere-
ly in intention or design. Commonwealth v.
Barnes, 107 Pa.Super. 46, 162 A. 670, 675.
Market Overt. See Market.
OVERT ACT. In criminal law. An open, mani-
fest act from which criminality may be implied.
An outward act done in pursuance and manifesta-
tion of an intent or design. An open act, which
must be manifestly proved. 3 Inst. 12. United
States v. Haupt, D.C.Ill., 47 F.Supp. 836, 839.
An overt act essential to establish an attempt to com-
mit a crime is an act done to carry out the intention, and
it must be such as would naturally effect that result un-
less prevented by some extraneous cause. People v. Mills,
178 N.Y. 274, 70 N.E. 786, 67 L.R.A. 131; State v. Enanno,
96 Conn. 420, 114 A. 386, 389. It must be something done
that directly moves toward the crime, and brings the ac-
cused nearer to its commission than mere acts of prepara-
tion or of planning, and will apparently result, in the
usual and natural course of events, if not hindered by
extraneous causes, in the commission of the crime itself.
Powell v. State, 128 Miss. 107, 90 So. 625, 626; State v. Ro-
by, 194 Iowa 1032, 188 N.W. 709, 714.
In reference to the crime of treason, and the provision
of the federal constitution that a person shall not be con-
victed thereof unless on the testimony of two witnesses to
the same "overt act," the term means a step, motion, or
action really taken in the execution of a treasonable pur-
pose, as distinguished from mere words, and also from a
treasonable sentiment, design, or purpose not issuing in ac-
tion. It is an act in furtherance of the crime. U. S. v.
Fricke, D.C.N.Y., 259 F. 673, 676. One which manifests
the intention of the traitor to commit treason. Archb.
Cr.P1. 379; 4 Bla.Comm. 79; Co. 3d Inst. 12; Re Boliman,
4 Cranch, 75, 2 L.Ed. 554; U. S. v. Pryor, 3 Wash.C.C. 234,
Fed.Cas.No.16,096.
An overt act which will justify the exercise of the right
of self-defense is such as would manifest to the mind of
a reasonable person a present intention to kill him or do
him great bodily harm. Cooke v. State, 18 Ala.App. 416,
93 So. 86, 88.
An overt act which completes crime of conspiracy to vio-
late federal law is something apart from conspiracy and
is an act to effect the object of the conspiracy, and need be
neither a criminal act, nor crime that is object of con-
spiracy, but must accompany or follow agreement and must
be done in furtherance of object of agreement. Marino v.
United States, C.C.A.Cal., 91 F.2d 691, 694, 695, 113 A.L.R.
975.
OVERT WORD. An open, plain word, not to be
misunderstood. Cowell.
OVERTAKE. To come or catch up with in a
course of motion. Ringwald v. Beene, 170 Tenn.
116, 92 S.W.2d 411, 413.
OVERTIME. After regular working hours; be-
yond the regular fixed hours. Ferguson v. Port
Huron & Sarnia Ferry Co., D.C.Mich., 13 F.2d 489,
492; Goodman v. Moss, 43 N.Y.S.2d 381, 385.
OVERTIME WAGE. Portion of wages paid em-
ployee for services rendered beyond regularly fix-
ed working hours. Goodman v. Moss, 43 N.Y.S.2d
381, 385.
OVERTURE. An opening; a proposal.
OWE. To be bound to do or omit something, es-
pecially to pay a debt. Robinson v. Ramsey, 161
Ga. 1, 129 S.E. 837, 839; Humphreys v. County
Court, 90 W.Va. 315, 110 S.E. 701, 703.
OWELTY. Equality; an equalization charge.
Bagg v. Osborn, 169 Minn. 126, 210 N.W. 862, 863.
This word is used in law in several compound
phrases, as follows:
Owelty of exchange. A sum of money given,
when two persons have exchanged lands, by the
owner of the less valuable estate to the owner of
the more valuable, to equalize the exchange.
Owelty of partition. A sum of money paid by
one of two coparceners or co-tenants to the other,
when a partition has been effected between them,
but, the land not being susceptible of division into
exactly equal shares, such payment is required to
make the portions respectively assigned to them of
equal value. Littleton, § 251; Co. Litt. 169a; Long
v. Long, 1 Watts (Pa.) 265; 16 Viner, Abr. 223, pl.
3. Reed v. Deposit Co., 113 Pa. 578, 6 A. 163. The
power to grant owelty has been exercised by the
courts of equity from time immemorial. Town
of Morganton v. Avery, 179 N.C. 551, 103 S.E. 138.
Owelty of services. In the feudal law, the condi-
tion obtaining when there is lord, mesne, and ten-
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OWNER
ant, and the tenant holds the mesne by the same
service that the mesne holds over the lord above
him. Tomlins.
OWING. Unpaid. A debt, for example, is owing
while it is unpaid, and whether it be due or not.
Coquard v. Bank of Kansas City, 12 Mo.App. 261;
Musselman v. Wise, 84 Ind. 248; Jones v. Thomp-
son, 1 El., Bl. & El. 64; Succession of Guidry, 40
La.Ann. 671, 4 So. 893.
OWLERS. In English law. Persons who carried
wool, etc., to the sea-side by night, in order that
it might be shipped off contrary to law. Jacob.
OWLING. In English law. The offense of trans-
porting wool or sheep out of the kingdom; so
called from its being usually carried on in the
night. 4 Bl. Comm. 154.
OWN. To have a good legal title; to hold as prop-
erty; to have a legal or rightful title to; to have;
to possess. Shepherd v. Maine Cent. R. Co., 112
Me. 350, 92 A. 189; McKennon v. Warnick, 115 Or.
163, 236 P. 1051, 1052; Miller-Link Lumber Co. v.
Stephenson, Tex.Civ.App., 265 S.W. 215, 220; Mel-
vin v. Scowley, 213 Ala. 414, 104 So. 817, 820. The
term does not necessarily signify absolute owner-
ship in fee. Rydeen v. Clearwater County, 139
Minn. 329, 166 N.W. 334, 335; Makemson v. Dillon,
24 N.M. 302, 171 P. 673, 676; Bush v. State, 128
Ark. 448, 194 S.W. 857. It is not synonymous with
"acquire." State v. District Court of Third Judi-
cial Dist. in and for Granite County, 79 Mont. 1,
254 P. 863, 865.
OWNED BY. Although these words may be used
synonymously with "belonging to" or "forming
part of"; Gilpatric v. City of Hartford, 98 Conn.
471, 120 A. 317, 319; in a stricter sense they de-
note an absolute and unqualified title, whereas the
words "belonging to" do not import that the whole
title to property or thing is meant, for a thing
may belong to one who has less than an unquali-
fied and absolute title; Baltimore Dry Docks &
Ship Building Co. v. New York & P. R. S. S. Co.,
C.C.A.Md., 262 F. 485, 488.
OWNER. The person in whom is vested the own-
ership, dominion, or title of property; proprietor.
Garver v. Hawkeye Ins. Co., 69 Iowa 202, 28 N.W.
555; McGowan v. Morgan, 145 N.Y.S. 787, 160 App.
Div. 588; Cayce Land Co. v. Southern Ry. Co., 111
S.C. 115, 96 S.E. 725, 727; Staples v. Adams, Payne
& Gleaves, C.C.A.Va., 215 F. 322, 325. He who has
dominion of a thing, real or personal, corporeal
or incorporeal, which he has a right to enjoy and
do with as he pleases, even to spoil or destroy it,
as far as the law permits, unless he be prevented
by some agreement or covenant which restrains
his right. Miller-Link Lumber Co. v. Stephenson,
Tex.Civ.App., 265 S.W. 215, 220; Newborn v. Peart,
121 Misc.Rep. 221, 200 N.Y.S. 890, 892; Hare v.
Young, 26 Idaho, 682, 146 P. 104, 106; Johnson
v. Crookshanks, 21 Or. 339, 28 P. 78.
The word is not infrequently used to describe one who
has dominion or control over a thing, the title to which
is in another. Robinson v. State, 7 Ala.App. 172, 62 So.
303, 306. Thus, it may denote the buyer under a condi-
tional sale agreement; Lennon v. L. A. W. Acceptance
Corporation of Rhode Island, 48 R.I. 363, 138 A. 215, 217;
a lessee; E. Corey & Co. v. H. P. Cummings Const. Co.,
118 Me. 34, 105 A. 405, 407; Texas Bank & Trust Co. of
Beaumont v. Smith, 108 Tex. 265, 192 S.W. 533, 534, 2 A.L.
R. 771; Hacken v. Isenberg, 288 Ill. 589, 124 N.E. 306, 308;
Grattan v. Trego, C.C.A.Kan., 225 F. 705, 708; a pledgee;
American Nat. Bank of Tucumcari v. Tarpley, 31 N.M.
667, 250 P. 18, 20; Baxter v. Moore, 56 Ind.App. 472, 105
N.E. 588, 589; and a person for whose benefit a ship is
operated on a particular voyage, and who directs and con-
trols it, its officers and crew; Potter v. American Union.
Line, 185 N.Y.S. 542, 843, 114 Misc.Rep. 101 (see, also, Pe-
tition of E. I. Du Pont de Nemours & Co., D.C.N.Y., 18
F.2d 782, 784).
The term is, however, a nomen generalissimum,
and its meaning is to be gathered from the connec-
tion in which it is used, and from the subject-mat-
ter to which it is applied. Warren v. Lower Salt
Creek Drainage Dist. of Logan County, 316 Ill.
345, 147 N.E. 248, 249. The primary meaning of
the word as applied to land is one who owns the
fee and who has the right to dispose of the. prop-
erty, but the term also includes one having a pos-
sessory right to land or the person occupying or
cultivating it. Dunbar v. Texas Irr. Co., Tex.Civ.
App., 195 S.W. 614, 616; McCarthy v. Hansel, 4
Ohio App. 425; Thompson v. Thompson, 79 Or.
513, 155 P. 1190, 1191; McLevis v. St. Paul Fire &
Marine Ins. Co., 165 Minn. 468, 206 N.W. 940, 942;
Great Northern Ry. Co. v. Oakley, 135 Wash. 279,
237 P. 990, 992; In re Opinion of the Justices, 234
Mass. 597, 127 N.E. 525, 529. Sometimes it includes
a lessee; Tobin v. Gartiez, 44 Nev. 179, 191 P. 1063,
1064; but not always; Smith v. Improvement Dist.
No. 14 of Texarkana, 108 Ark. 141, 156 S.W. 455,
456, 44 L.R.A.,N.S., 696. A mortgagee may be
deemed an "owner"; Lindholm v. Hamilton, 159
Minn. 81, 198 N.W. 289, 290; Blaine County Bank
v. Noble, 55 Okl. 361, 155 P. 532, 534; Burrill Nat.
Bank v. Edminister, 119 Me. 367, 111 A. 423, 424;
Merriman v. City of New York, 227 N.Y. 279, 125
N.E. 500, 502; but under different statutes or cir-
cumstances, an opposite result may be reached;
Huebner v. Lashley, 239 Mich. 50, 214 N.W. 107,
108. The term may likewise, on occasion, include
mortgagors; Hendricks v. Town of Julesburg,
55 Colo. 59, 132 P. 61, 63; Smith v. Craver, 89
Wash. 243, 154 P. 156, 158; Borough of Princeton
v. State Board of Taxes and Assessments, 96 N.J.
L. 334, 115 A. 342, 344.
In theft and burglary cases, the "owner" is the
person in possession, having care, control, and
management at the time. Cantrell v. State, 105
Tex.Cr.R. 560, 289 S.W. 406, 407; Allen v. State,
94 Tex.Cr.R. 646, 252 S.W. 505; Carson v. State,
30 Okl.Cr. 438, 236 P. 627, 628.
In embezzlement, the principal to whom an
agent looks for authority, under whose control he
acts, and from whom he receives compensation
and takes direction, is the owner within the mean-
ing of statute. Coney v. State, 100 Tex.Cr.R. 380,
272 S.W. 197, 199.
Equitable owner. One who is recognized in
equity as the owner of property, because the real
and beneficial use and title belong to him, although
the bare legal title is vested in another, e. g., a
trustee for his benefit. One who has a present
title in land which will ripen into legal ownership
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upon the performance of conditions subsequent.
Hawkins v. Stiles, Tex.Civ.App., 158 S.W. 1011,
1021. There may therefore be two "owners" in
respect of the same property, one the nominal or
legal owner, the other the beneficial or equitable
owner. In re Fulham's Estate, 96 Vt. 308, 119 A.
433, 437.
General owner. He who has the primary or re-
siduary title to it; as distinguished from a special
owner, who has a special interest in the same
thing, amounting to a qualified ownership, such,
for example, as a bailee's lien. Farmers' & Mech-
anics' Nat. Bank v. Logan, 74 N.Y. 581. One who
has both the right of property and of possession.
General and beneficial owner. The person
whose interest is primarily one of possession and
enjoyment in contemplation of an ultimate abso-
lute ownership;—not the person whose interest is
primarily in the enforcement of a collateral pecu-
niary claim, and does not contemplate the use or
enjoyment of the property as such. Ex parte
State, 206 Ala. 575, 90 So. 896.
Joint owners. Two or more persons who joint-
ly own and hold title to property, e. g., joint ten-
ants, and also partners and tenants in common.
In re Huggins' Estate, 96 N.J.Eq. 275, 125 A. 27,
30. In its most comprehensive sense, the term
embraces all cases where the property in question
is owned by two or more persons regardless of
the special nature of their relationship or how it
came into being. Halferty v. Karr, 188 Mo.App.
241, 175 S W. 146, 147.
An estate by entirety is a "joint ownership" of a hus-
band and wife as at common law notwithstanding legisla-
tive enactments touching joint tenancy. Cullum v. Rice,
236 Mo.App. 1113, 162 S.W.2d 342, 344.
Legal owner. One who is recognized and held
responsible by the law as the owner of property.
In a more particular sense, one in whom the legal
title to real estate is vested, but who holds it in
trust for the benefit of another, the latter being
called the "equitable" owner.
Part owners. Joint owners; co-owners; those
who have shares of ownership in the same thing,
particularly a vessel.
Real owners. Those who must be joined in ac-
tions of scire facias sur mortgage under Pennsyl-
vania statutes are the present owners of the title
under which the mortgagor claimed when he exe-
cuted the mortgages, and do not include persons
claiming by titles antagonistic to the mortgagor.
Orient Building & Loan Ass'n v. Gould, 239 Pa.
335, 86 A. 863.
Record owner. This term, particularly used in
statutes requiring notice of tax delinquency or
sale, means the owner of record, not the owner
described in the tax roll; Okanogan Power & Irri-
gation Co. v. Quackenbush, 107 Wash. 651, 182 P.
618, 619, 5 A.L.R. 966; the owner of the title at
time of notice; Hunt v. State, 110 Tex. 204, 217 S.
W. 1034, 1035.
Reputed owner. One who has to all appearances
the title to, and possession of, property; one who,
from all appearances, or from supposition, is the
owner of a thing. Lowell Hardware Co. v. May,
59 Colo. 475, 149 P. 831, 832. He who has the
general credit or reputation of being the owner or
proprietor of goods. Santa Cruz Rock Pa y . Co. v.
Lyons, 5 Cal.Unrep.Cas. 260, 43 P. 601.
This phrase is chiefly used in English bankruptcy prac-
tice, where the bankrupt is styled the "reputed owner"
of goods lawfully in his possession, though the real owner
may be another p erson. The word "reputed" has a much
weaker sense than its derivation would appear to warrant;
importing merely a supposition or opinion derived or made
up from outward appearances, and often unsupported by
fact. The term "reputed owner" is frequently employed in
this sense. 2 Steph.Comm. 206,
Riparian owner. See Riparian.
Sole and unconditional owner. An expression
commonly used in fire insurance policies, in which
the word "sole" means that no one else has any
interest in the property as owner, and "uncondi-
tional" means that the quality of the estate is not
limited or affected by any condition. Globe &
Rutgers Fire Ins. Co. v. Creekmore, 69 Okl. 238,
171 P. 874, 876; Hartford Fire Ins. Co. v. McCain,
141 Miss. 394, 106 So. 529. To be "unconditional
and sole," the interest or ownership of the insured
must be completely vested, not contingent or con-
ditional, nor in common or jointly with others, but
of such nature that the insured must alone sustain
the entire loss if the property is destroyed; and
this is so whether the title is legal or equitable.
Socicero v. National Union Fire Ins. Co. of Pitts-
burgh, Pa., 90 Fla. 820, 106 So. 879; Livingstone v.
Boston Ins. Co., 255 Pa. 1, 99 A. 212, 213.
It is sufficient to satisfy the requirements of "sole and
unconditional ownership" that the insured is the sole
equitable owner and has the full equitable title. Turner
v. Home Ins. Co., 195 Mo.App. 138, 189 S.W. 626, 628; Al-
liance Ins. Co. v. Enders, C.C.A.Idaho, 293 F. 485, 489. It
is enough that the insured is equitably entitled to im-
mediate and absolute legal ownership. Exchange Under-
writers' Agency of Royal Exchange Assur. of London,
England, v. Bates, 195 Ala. 161, 69 So. 956, 960. The term
contemplates beneficial and practical proprietorship and
not necessarily technical title. Royal Ins. Co. v. Drury,
150 Md. 211, 132 A. 635, 640, 43 A.L.R. 582. See Giles v.
Citizens' Ins. Co. of Missouri, 32 Ga.App. 207, 122 S.E. 890,
891.
Special owner. One who has a special interest in
an article of property, amounting to a qualified
ownership of it, such, for example, as a bailee's
lien; as distinguished from the general owner,
who has the primary or residuary title to the
same thing. Frazier v. State, 18 Tex.App. 441.
Some person holding property with the consent
of, and as representative of, the actual owner.
Mathieu v. Roberts, 31 N.M. 469, 247 P. 1066, 1068.
OWNER'S RISK. An expression employed by
carriers with the object of relieving them from re-
sponsibility. See [1906] T. S. 973 (So. Afr.) ; Heis-
kell v. Furness, Withy & Co., C.C.A.N.Y., 4 F.2d
977, 978.
OWNERSHIP. Collection of rights to use and en-
joy property, including right to transmit it to oth-
ers. Trustees of Phillips Exeter Academy v. Exe-
ter, 92 N.H. 473, 33 A.2d 665, 673. The complete
dominion, title, or proprietary right in a thing or
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claim. The entirety of the powers of use and dis-
posal allowed by law. See Property.
The right of one or more persons to possess and use a
thing to the exclusion of others. Civ. Code Cal. § 654.
The right by which a thing belongs to some one in particu-
lar, to the exclusion of all other persons. Civ. Code La.
art. 488. The exclusive right of possession, enjoyment, and
disposal; Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891;
involving as an essential attribute the right to control,
handle, and dispose; Hardinge v. Empire Zinc Co., 17 Ariz.
75, 148 P. 306, 310.
Ownership is divided into perfect and imperfect. Owner-
ship is perfect when it is perpetual, and when the thing
is unincumbered with any real right towards any other per-
son than the owner. On the contrary, ownership is im-
perfect when it is to terminate at a certain time or on a
condition, or if the thing which is the object of it, being an
immovable, is charged with any real right towards a third
person; as a usufruct, use, or servitude. When an im-
movable is subject to a usufruct, the owner of it is said
to possess the naked ownership. Civ.Code La. art. 490;
Maestri v. Board of Assessors, 110 La. 517, 34 So. 658.
In criminal law. In connection with burglary,
"ownership" means any possession which is right-
ful as against the burglar. Seaba v. State, 33 Okl.
Cr. 59, 242 P. 779, 780; State v. Bige, 195 Iowa,
1342, 193 N.W. 17, 21. It is synonymous with oc-
cupancy. State v. Harrison, Mo.Sup., 285 S.W. 83,
87; Carneal v. State, 86 Tex.Cr.R. 274, 216 S.W.
626. When considered as an element of larceny,
"ownership" means the same as "possession."
People v. Edwards, 72 Cal.App. 102, 236 P. 944,
950.
Exclusive ownership. See Exclusive Ownership.
OXFILD. A restitution anciently made by a hun-
dred or county for any wrong done by one that
was within the same. Lamb.Arch. 125.
OXGANG. In old English law. As much land
as an ox could till. Co. Litt. 5a. A measure
of land of uncertain quantity. In the north of
England a division of a carucate. According to
some, fifteen acres. Co. Litt. 69a; Crompton,
Jurisd. 220. According to Balfour, the Scotch
oxengang, or oxgate, contained twelve acres; but
this does not correspond with ancient charters.
Bell, Dict. Ploughgate. Skene and Spelman say
thirteen acres. Cowell; 1 Poll. & Maitl. 347.
See Librata Terrae.
OYER. In Old Practice. Hearing; the hearing
a deed read, which a party sued on a bond, etc.,
might pray or demand, and it was then read to
him by the other party; the entry on the record
being, "et ei legitur in hcec verba," (and it is read
to him in these words). Steph. Pl. 67, 68; 3 Bl.
Comm. 299; 3 Salk. 119.
In Modern practice. A copy of a bond or spe-
cialty sued upon, given to the opposite party, in
lieu of the old practice of reading it.
OYER AND TERMINER. A half French phrase
applied in England to the assizes, which are so
called from the commission of oyer and terminer
directed to the judges, empowering them to "in-
quire, hear, and determine" all treasons, felonies,
and misdemeanors. This commission is now is-
sued regularly, but was formerly used only on par-
ticular occasions, as upon sudden outrage or in-
surrection in any place. In the United States, the
higher criminal courts are called "courts of oyer
and terminer." Burrill.
OYER DE RECORD. A petition made in court
that the judges, for better proof's sake, will hear
or look upon any record. Cowell.
OYEZ. Hear ye. A word used in courts by the
public crier to command attention when a proc-
lamation is about to be made. Usually pronounc-
ed "0 yes." 4 Bla.Comm. 340, n.
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P
P
P. An abbreviation for "page;" also for "Pas-
chalis," (Easter term,) in the Year Books, and for
numerous other words of which it is the initial.
P. C. An abbreviation for "Pleas of the Crown;"
sometimes also for "Privy Council," "Parliamen.
tary. Cases," "Patent Cases," "Practice Cases,"
"Penal Code," or "Political Code."
P. A. Public Housing Administration.
P. II. V. An abbreviation for "pro hac vice," for
this turn, for this purpose or occasion.
P. J. An abbreviation for "president" (or pre-
siding) "judge," (or justice).
P. L. An abbreviation for "Pamphlet Laws" or
"Public Laws."
P. M. An abbreviation for "postmaster;" also
for "post-meridiem," afternoon.
P. 0. An abbreviation of "public officer;" also of
"post-office."
P. P. An abbreviation for "propria persona," in
his proper person, in his own person, and for
per procuration (q. v.).
P. P. L Policy proof of interest, i. e., in the event
of loss, the insurance policy is to be deemed suffi-
cient proof of interest. Frank B. Hall & Co. v.
Jefferson Ins. Co., D.C.N.Y., 279 F. 892, 893.
P. S. An abbreviation for "Public Statutes;" also
for "postscript."
P. S. I. A. An abbreviation for "pounds per square
inch absolute." Application of Corneil, 347 F.2d
563, 564, 52 C.C.P.A. 1718.
PAAGE. In old English law. A toll for passage
through another's land. The same as "pedage."
PACARE. L. Lat. To pay.
PACATIO. Payment. Mat. Par. A. D. 1248.
PACE. A measure of length containing two feet
and a half, being the ordinary length of a step.
The geometrical pace is five feet long, being the
length of two steps, or the whole space passed
over by the same foot from one step to another.
PACEATUR. Lat. Let him be freed or discharg-
ed.
PACI SUNT MAXIME CONTRARIA VIS ET IN-
JURIA. Co. Litt. 161. Violence and injury are
the things chiefly hostile to peace.
PACIFICATION. The act of making peace be-
tween two hostile or belligerent states; reestab-
lishment of public tranquillity.
PACIFIST. One who seeks to maintain peace and
to abolish war; one who refuses or is unwilling
for any purpose to bear arms because of conscien-
tious considerations, and who is disposed to en-
courage others in such refusal. U. S. v. Schwim-
mer, Ill., 49 S.Ct. 448, 451, 279 U.S. 644, 73 L.Ed.
889.
PACK. To deceive by false appearances; to coun-
terfeit; to delude; to put together in sorts with
a fraudulent design. To pack a jury is to use
unlawful, improper, or deceitful means to have
the jury made up of persons favorably disposed
to the party so contriving, or who have been or
can be improperly influenced to give the verdict
he seeks. The term imports the improper and
corrupt selection of a jury sworn and impaneled
for the trial of a cause. Mix v. Woodward, 12
Conn. 289.
PACK OF WOOL. A horse load, which consists
of seventeen stone and two pounds, or two hun-
dred and forty pounds weight. Fleta, L 2, c. 12;
Cowell.
PACKAGE. A bundle put up for transportation
or commercial handling; a thing in form to be-
come, as such, an article of merchandise or de-
livery from hand to hand. A parcel is a small
package; "parcel" being the diminutive of "pack-
age." Each of the words denotes a thing in form
suitable for transportation or handling, or sale
from hand to hand. Haley v. State, 42 Neb. 556,
60 N.W. 962, 47 Am.St.Rep. 718; State v. Parsons,
124 Mo. 436, 27 S.W. 1102, 46 Am.St.Rep. 457. As
ordinarily understood in the commercial world, it
means a shipping package. Noble v. People, 67
Colo. 429, 180 P. 562, 563. Where a bale of cot-
ton was held not a package; contra, Lamb v.
Transp. Co., 2 Daly (N. Y.) 454.
In old English law. One of various duties charg-
ed in the port of London on the goods imported
and exported by aliens, or by denizens the sons
of aliens. Tomlins. Now abolished. Whart. Lex.
Original package. See Original.
PACKED PARCELS. The name for a consign-
ment of goods, consisting of one large parcel
made up of several small ones, (each bearing a
different address,) collected from different per-
sons by the immediate consignor, (a carrier,) who
unites them into one for his own profit, at the
expense of the railway by which they are sent,
since the railway company would have been paid
more for the carriage of the parcels singly than
together. Wharton.
PACKER. A person employed in England by
merchants to receive and (in some instances) to
select goods from manufacturers, dyers, calenders,
etc., and pack the same for exportation. Arch.
Bankr., 11th ed. 37.
In the United States, one engaged in the business
of slaughtering and packing cattle, sheep, and
hogs, and preparing their products for sale. See
Williams v. Schehl, 84 W.Va. 499, 100 S.E. 280, 282.
PACT. A bargain; compact; agreement. This
word is used in writings on Roman law and on
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general jurisprudence as the English form of the
Latin "pactum," (which see.)
Nude Pact. A translation of the Latin "nudum
pactum," a bare or naked pact, that is, a promise
or agreement made without any consideration on
the other side, which is therefore not enforceable.
Obligatory Pact. In Civil Law. An informal
obligatory declaration of consensus, which the
Roman law refused to acknowledge. Sohm, Rom.
L. 321.
Pact De Non Alienando. An agreement not to
alienate incumbered (particularly mortgaged)
property. This stipulation, sometimes found in
mortgages made in Louisiana, and derived from
the Spanish law, binds the mortgagor not to sell
or incumber the mortgaged premises to the preju-
dice of the mortgagee; it does not avoid a sale
made to a third person, but enables the mortgagee
to proceed directly against the mortgaged property
in a proceeding against the mortgagor alone and
without notice to the purchaser. See Dodds v.
Lanaux, 45 La.Ann. 287, 12 So. 345.
PACTA CONVENTA QUIE NEQUE CONTRA
LEGES NEQUE DOLO MALO INITA SUNT OM-
NI MODO OBSERVANDA SUNT. Agreements
which are not contrary to the laws nor entered
into with a fraudulent design are in all respects
to be observed. Cod. 2, 3, 39; Broom, Max. 698,
732.
PACTA DANT LEGEM CONTRACTUI. Hob. 118.
The stipulations of parties constitute the law of
the contract. Agreements give the law to the con-
tract. Halkers, Max. 118.
PACTA PRIVATA JURI PUBLICO DEROGARE
NON POSSUNT. 7 Coke, 23. Private compacts
cannot derogate from public right.
PACTA QUIE CONTRA LEGES CONSTITU-
TIONESQUE, VEL CONTRA BONOS MORES
FIUNT, NULLAM VIM HABERE, INDUBITATI
JURIS EST. That contracts which are made
against law or against good morals have no force
is a principle of undoubted law. Cod. 2, 3, 6;
Broom, Max. 695.
PACTA QUIE TURPEM CAUSAM CONTINENT
NON SUNT OBSERVANDA. Agreements found-
ed upon an immoral consideration are not to be
observed. Dig. 2, 14, 27, 4; Broom, Max. 732; 2
Pet. 539, 7 L.Ed. 508.
PACTIO. Lat. In the civil law. A bargaining or
agreeing of which pactum (the agreement itself)
was the result. Calvin. It is used, however, as
the synonym of "pactum."
FACTIONAL. Relating to or generating an agree-
ment; by way of bargain or covenant.
FACTIONS. In international law. Contracts
between nations which are to be performed by a
single act, and of which execution is at an end
at once. 1 Bouv. Inst. no. 100.
PACTIS PRIVATORUM JURI PUBLICO NON
DEROGATUR. Private contracts do not derogate
from public law. Broom, Max. 695; per Dr. Lush-
ington, Arg. 4 Cl. & F. 241; Arg. 3 Id. 621.
PACTITIOUS. Settled by covenant.
PACTO ALIQUOD LICITUM EST, QUOD SINE
PACTO NON ADMITTITUR. Co. Litt. 166. By
special agreement things are allowed which are
not otherwise permitted.
PACTUM. Lat.
In the civil law. A pact. An agreement or con-
vention without specific name, and without con-
sideration, which, however, might, in its nature,
produce a civil obligation. Heinecc. Elem. lib. 3,
tit. 14, § 775; Merlin, Rep. Pacte.
In Roman law. With some exceptions, those
agreements that the law does not directly en-
force, but which it recognizes only as a valid
ground of defense, were called "pacta." Those
agreements that are enforced, in other words, are
supported by actions, are called "contractus." The
exceptions are few, and belong to a late period.
Hunter, Rom. Law, 546.
Nudum Pactum. A bare or naked pact or
agreement; a promise or undertaking made with-
out any consideration for it, and therefore not
enforceable.
PACTUM COMMISSORIUM. An agreement of
forfeiture. See Lex Commissoria.
PACTUM CONSTITUTIE PECUNIZE. In the Civ-
il Law. An agreement by which a person appoint-
ed to his creditor a certain day, or a certain time,
at which he promised to pay; or it may be defined
simply an agreement by which a person promises
a creditor to pay him. There is a striking con-
formity between the pactum constitutce pecunice,
as above defined, and our indebitatus assumpsit.
4 Co. 91, 95. See 1 H.Bla. 550, 850; Brooke, Abr.
Action sur le Case (Pl. 7, 69, 72) ; 4 B. & B. 295;
1 Chitty, Pl. 89.
PACTUM DE NON ALIENANDO. A pact or
agreement binding the owner of property not to
alienate it, intended to protect the interests of an-
other; particularly an agreement by the mort-
gagor of real estate that he will not transfer the
title to a third person until after satisfaction of
the mortgage. Mackeld. Rom. Law, § 461. A.
clause inserted in mortgages in Louisiana to se-
cure to the mortgage creditor the right to fore-
close his mortgage by executory process directed
solely against the mortgagor, and to give him the
right to seize and sell the mortgaged property, re-
gardless of any subsequent alienations. Avegno
v. Schmidt, 35 La.Ann. 585; Shields v. Schiff, 124
U.S. 355, 8 S.Ct. 510, 31 L.Ed. 445.
PACTUM DE NON PETENDO. In the civil law.
An agreement not to sue. A simple convention
whereby a creditor promises the debtor that he
will not enforce his claim. Mackeld. Rom. Law, §
542.
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PACTUM
PACTUM DE QUOTA LITIS. In the civil law.
An agreement by which a creditor promised to pay
a portion of a debt difficult to recover to a person
who undertook to recover it. Wharton.
PAD. To stuff or furnish with padding. A charge
that a contractor padded his pay roll would imply
a charge of deceit or artifice. Smith v. Aultman,
30 Ga.App. 507, 118 S.E. 459.
PADDER. A robber; a foot highwayman; a
foot-pad.
PADDOCK. A small inclosure for deer or other
animals.
PAGA. In Spanish law. Payment. Las Partidas,
pt. 5, tit. 14, 1. 1. Pagamento, satisfaction.
PAGARCHUS. A petty magistrate of a pagus or
little district in the country.
PAGE. One side of a leaf, as of a book, manu-
script or letter. Roberts Bros. Co. v. Grein, 129
Misc. 406, 221 N.Y.S. 321, 322.
PAGODA. A gold or silver coin, of several kinds
and values, formerly current in India. It was
valued at the United States custom-house, at $1.94.
PAGUS. A county. Jacob.
PAIN. A disagreeable feeling, usually in its in-
tenser degrees, resulting from, or accompanying,
deranged or otherwise abnormal action of the phy-
sical powers. Merriam v. Hamilton, 64 Or. 476,
130 P. 406, 407.
PAINE FORTE ET DURE. See Peine Forte et
Dure.
PAINS AND PENALTIES, BILLS OF. The name
given to acts of parliament to attaint particular
persons of treason or felony, or to inflict pains
and penalties beyond or contrary to the common
law, to serve a special purpose. They are in fact
new laws, made pro re nata. See, also, Bill of
Pains and Penalties.
PAINTING. A likeness, image, or scene depicted
with paints. Cent. Dict. The term does not nec-
essarily mean anything upon which painting has
been done by a workman, but rather something of
value as a painting and something on which skill
has been bestowed in producing it. Colored imi-
tations of rugs and carpets and colored working
designs, each of them valuable and designed by
skilled persons and hand painted, but having no
value as works of art, are not "paintings," within
the meaning of a statute on the liability of car-
riers. 3 Ex. Div. 121.
PAIRING-OFF. In the practice of legislative bod-
ies, a species of negative proxies, by which two
members, who belong to opposite parties or are
on opposite sides with regard to a given question,
mutually agree that they will both be absent from
voting, either for a specified period or when a
division is had on the particular question. By this
mutual agreement a vote is neutralized on each
side of the question, and the relative numbers on
the division are precisely the same as if both mem-
bers were present. May, Parl. Pr. 370. It is said
to have originated in the house of commons in
Cromwell's time.
PAIS, PAYS. Fr. The country; the neighbor-
hood.
A trial per pais signifies a trial by the country;
that is, by jury.
An assurance by matter in pais is an assurance
transacted between two or more private persons
"in the country;" that is, upon the very spot to be
transferred.
Matter in pais signifies matter of fact, probably
because matters of fact are triable by the country;
i. e., by jury.
Estoppels in pais are estoppels by conduct, as
distinguished from estoppels by deed or by record.
Conveyances in pais are ordinary conveyances
between two or more persons in the country; s e.,
upon the land to be transferred.
See, also, In Pais; Matter In Pais.
PALACE COURT. See Court of the Steward and
Marshal.
PALAGIUM. A duty to -lords of manors for ex-
porting and importing vessels of wine at any of
their ports. Jacob.
PALAM. Lat. In the civil law. Openly; in the
presence of many. Dig. 50, 16, 33.
PALATINE. Possessing royal privileges. See
County Palatine.
PALATINE COURTS. Formerly, the court of
common pleas at Lancaster, the chancery court of
Lancaster, and the court of pleas at Durham, the
second of which alone now exists. Sweet. (See
the respective titles.)
PALATIUM. Lat. A palace. The emperor's
house in Rome was so called from the Mons Pala-
tinus on which it was built. Adams, Rom. Ant.
613.
PALFRIDUS. A palfrey; a horse to travel on.
PALINGMAN. In old English law. A merchant
denizen; one born within the English pale.
Blount.
PALLIO COOPERIRE. In old English law. An
ancient custom, where children were born out of
wedlock, and their parents afterwards intermar-
ried. The children, together with the father and
mother, stood under a cloth extended while the
marriage was solemnized. It was in the nature
of adoption. The children were legitimate by the
civil, but not by the common, law. Jacob. They
were called "mantle children" in Germany, France,
and Normandy. 2 Poll. & Maitl. 397. The custom
existed in Scotland almost to our own time. Bryce,
Studies in Hist. etc., Essay xvi.
PALM OFF. To impose by fraud; to put off by
unfair means. Sayre v. McGill Ticket Punch Co..
D.C.Ill., 200 F. 771, 773.
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PAPAL
PALMARIUM. In civil law. A conditional fee
for professional services in, addition to the lawful
charge.
PALMER ACT. A name given to the English
statute 19 & 20 Vict. c. 16, enabling a person ac-
cused of a crime committed out of the jurisdic-
tion of the central criminal court, to be tried in
that court.
PALMING OFF DOCTRINE. Rule of law itself
by which it is determined whether a given state
of facts constitutes "unfair competition." Soft-
Lite Lens Co. v. Ritholz, 301 Ill.App. 100, 21 N.E.
2d 835, 838.
PALMISTRY. The practice of telling fortunes
by a feigned interpretation of the lines and marks
on the hand. Also, a trick with the hand. 2 Exch.
Div. 268.
PALPABLE. Easily perceptible, plain, obvious,
readily visible, noticeable, patent, distinct, mani-
fest. State v. Department of Public Works, 143
Wash. 67, 254 P. 839, 844; Alabama Fuel & Iron
Co. v. Minyard, 210 Ala. 299, 97 So. 918, 921. Peo-
ple v. Hughey, 382 Ill. 136, 47 N.E.2d 77, 80.
PAMPHLET. A small book, bound in paper cov-
ers, usually printed in octavo form, and stitched.
U. S. v. Chase, 10 S.Ct. 756, 135 U.S. 255, 34 L.Ed.
117.
PAMPHLET LAWS. The name given in some
states, such as Pennsylvania, to the publication,
in pamphlet or book form, containing the acts pass-
ed by the state legislature at each of its biennial
sessions.
PANDECTS. A compilation of Roman law, con-
sisting of selected passages from the writings of
the most authoritative of the older jurists, method-
ically arranged, prepared by Tribonian with the
assistance of sixteen associates, under a commis-
3ion from the emperor Justinian. This work,
which is otherwise called the "Digest," because in
his compilation the writings of the jurists were re-
duced to order and condensed quasi digestive,
comprises fifty books, and is one of the four great
works composing the Corpus Juris Civilis. It was
first published in A. D. 533, when Justinian gave
to it the force of law.
PANDER, n. One who caters to the lust of oth-
ers; a male bawd, a pimp, or procurer. Hewitt
v. State, 71 Tex.Cr.R. 243, 158 S.W. 1120, 1125.
PANDER, v. To pimp; to cater to the gratifica-
tion of the lust of another. State v. Thibodeaux,
136 La. 935, 67 So. 973, 974. To entice or procure a
female, by promises, threats, fraud, or artifice, to
enter any place in which prostitution is practiced,
for the purpose of prostitution. Boyle v. State, 110
Ark. 318, 161 S.W. 1049, 1051; Crawford & Moses'
Dig. § 2707; Humphries v. State, 79 Tex.Cr.R.
637, 186 S.W. 332, 334; To take and detain a female
for the purpose of sexual intercourse, on pretense
of marriage. Crawford & Moses' Dig. (Ark.) §
2703.
Black's Law Dictionary Revised 4th Ed.-80
PANDERER. One who solicits for prostitute or
lewd woman. Lutes v. Commonwealth, 236 Ky.
549, 33 S.W.2d 620, 622, 74 A.L.R. 304.
PANDOXATOR. In old records. A brewer.
PANDOXATRIX. An ale-wife; a. woman that
both brewed and sold ale and beer.
PANEL. The roll or slip of parchment returned
by the sheriff in obedience to a venire facias, con-
taining the names of the persons whom he has
summoned to attend the court as jurymen. Beas-
ley v. People, 89 Ill. 571; People v. Coyodo, 40 Cal.
592; Co. Litt. 158b.
A list of jurors returned by a sheriff, to serve at a
particular court or for the trial of a particular action.
Pen.Code Cal. § 1057. The word may be used to denote
either the whole body of persons summoned as jurors for
a particular term of court, or those selected by the clerk
by lot. State v. Gurlagh, 76 Iowa, 141, 40 N.W. 141.
In Scotch law. The prisoner at the bar, or per-
son who takes his trial before the court of justi-
ciary for any crime. This name is given to him
after his appearance. Bell.
PANIER, in the parlance of the English bar socie-
ties, is an attendant or domestic who waits at ta-
ble and gives bread, (panis,) wine, and other nec-
essary things to those who are dining. The phrase
was in familiar use among the knights templar,
and from them has been handed down to the learn-
ed societies of the inner and middle temples, who
at the present day occupy the halls and buildings
once belonging to that distinguished order, and
who have retained a few of their customs and
phrases. Brown.
PANIS. Lat. In old English law. Bread; loaf;
a loaf. Fleta, lib. 2, c. 9. See Mandato, Panes De.
PANNAGE. A common of pannage is the right of
feeding swine on mast and acorns at certain sea-
sons in a commonable wood or forest. Elton, Com-
mons, 25; Williams, Common, 168.
PANNAGIUM EST PASTUS PORCORUM, IN
NEMORIBUS ET IN SILVIS, UT PUTA, DE
GLANDIBUS, ETC. 1 Bulst. 7. A pannagium is
a pasture of hogs, in woods and forests, upon
acorns, and so forth.
PANNELLATION. The act of impaneling a jury.
PANTOMIME. A dramatic performance in which
gestures take the place of words. See 3 C. B. 871.
PAPAL SUPREMACY. The supremacy which the
Pope claimed not only over the Emperor of the
Holy Roman Empire, but over all other Christian
princes. The theory was that they stood to the
Pope as feudal vassals to a supreme lord; as such,
the Pope claimed the right to enforce the duties
due to him from his feudal subordinates through
an ascending scale of penalties culminating in the
absolution of the prince's subjects from the bonds
of allegiance, and in the disposition of the sover-
eign himself. The papal supremacy was over-
thrown in England by acts of the Parliament which
met in 1529 and was dissolved in 1536, ending in
the Act of Supremacy. Hannis Taylor, Science of
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Jurispr.; Boyce, Holy Rom. Emp.; Freeman, Sel.
Hist. Essays; 2 Phill. Intern. Law.
PAPER. A manufactured substance composed of
fibres (whether vegetable or animal) adhering to-
gether in forms consisting of sheets of various siz-
es and of different thicknesses, used for writing or
printing or other purposes to which flexible sheets
are applicable. .4 H. & N. 470.
A written or printed document or instrument.
A document filed or introduced in evidence in a
suit at law, as, in the phrase "papers in the case"
and in "papers on appeal." Any writing or printed
document, including letters, memoranda, legal or
business documents, and books of account, as in
the constitutional provision which protects the
people from unreasonable searches and seizures
in respect to their "papers" as well as their houses
and persons. A written or printed evidence of
debt, particularly a promissory note or a bill of
exchange, as in the phrases "accommodation pa-
per" and "commercial paper."
Books are not paper within the meaning of the tariff act;
Pott v. Arthur, 104 U.S. 735, 26 L.Ed. 909.
The term "papers" does not mean newspapers or perhaps
even include them within the meaning of a statute, the
object of which is to prevent a jury from receiving any
evidence, papers, or documents not authorized by the court.
State v. Jackson, 9 Mont. 508, 24 P. 216. But the word in-
cludes photographs of deceased showing the nature of his
wounds. People v. Balestieri, 23 Cal.App. 708, 139 P. 821,
823.
Generally, the words "documents" and "papers" refer
to particular instruments and writings bearing upon spe-
cific transactions, whereas "books of accounts" and "rec-
ords" have reference to serial, continuous, and more per-
manent memorials of a concern's business and affairs.
Cudahy Packing Co. v. U. S., C.C.A.Ill., 15 F.2d 133, 136.
In English practice. The list of causes or cases
intended for argument, called "the paper of caus-
es." 1 Tidd, Pr. 504. See Paper Days.
In General
Accommodation paper. See that title.
Commercial paper. See Commercial.
Paper blockade. See Blockade.
Paper book. In practice. A printed collection
or abstract, in methodical order, of the pleadings,
evidence, exhibits, and proceedings in a cause, or
whatever else may be necessary to a full under-
standing of it, prepared for the use of the judges
upon a hearing or argument on appeal. Copies
of the proceedings on an issue in law or demurrer,
of cases, and of the proceedings on error, prepared
for the use of the judges, and delivered to them
previous to bringing the cause to argument. 3
BI. Comm. 317; Archb. New Pr. 353; 5 Man. & G.
98. In proceedings on appeal or error in a crim-
inal case, copies of the proceedings with a note of
the points intended to be argued, delivered to the
judges by the parties before the argument. Archb.
Grim. Pl. 205; Sweet.
Paper credit. Credit given on the security of
any written obligation purporting to represent
property.
Paper days. In English law. Certain days in
term-time appointed by the courts for hearings or
arguments in the cases set down in the various
special papers.
Paper hangings. In tariff acts, tinted or decora-
tive paper used for covering walls, ceiling, etc.;—
distinguished from "hanging paper," meaning such
paper, whether or not tinted or decorative. Down-
ing & Co. v. U. S., 12 Ct.Cust.App. 451, 454.
Paper mill. See Paper office.
Paper money. Bills drawn by a government
against its own credit, engaging to pay money,
but which do not profess to be immediately con-
vertible into specie, and which are put into com-
pulsory circulation as a substitute for coined mon-
ey.
Paper office. In English law. An ancient office
in the palace of Whitehall, where all the public
writings, matters of state and council, proclama-
tions, letters, intelligences, negotiations of the
queen's ministers abroad, and generally all the
papers and dispatches that pass through fhe offices
of the secretaries of state, are deposited. Also an
office or room in the court of queen's bench where
the records belonging to that court are deposited;
sometimes called "paper-mill." Wharton.
Paper title. See Title.
PAPIAN POPP1EAN LAW. See Lex Papia Pop-
pea.
PAPIST. One who adheres to the communion of
the Church of Rome. The word seems to be con-
sidered by the Roman Catholics themselves as a
nickname of reproach, originating in their main-
taining the supreme ecclesiastical power of the
pope. Wharton.
PAR. In commercial law. Equal; equality. An
equality subsisting between the nominal or face
value of a bill of exchange, share of stock, etc.,
and its actual selling value. When the values are
thus equal, the instrument or share is said to be
"at par;" if it can be sold for more than its nom-
inal worth, it is "above par;" if for less, it is "be-
low par." Conover v. Smith, 83 Cal.App. 227, 256
P. 835, 838; Town of Buffalo v. Walker, 126 Okl.
6, 257 P. 766, 770; Boston & M. R. R. v. U. S., C.C.
A.Mass., 265 F. 578, 579.
Par of exchange. In mercantile law. The pre-
cise equality or equivalency of any given sum or
quantity of money in the coin of one country, and
the like sum or quantity of money in the coin of
any other foreign country into which it is to be
exchanged, supposing the money of such country
to be of the precise weight and purity fixed by the
mint standard of the respective countries. Story,
Bills, § 30. Murphy v. Kastner, 50 N.J.Eq. 220,
24 A. 564; Blue Star S. S. Co. v. Keyser, D.C.Fla.,
81 F. 510; Delafield v. Illinois, 26 Wend., N.Y.,
224. The par of the currencies of any two coun-
tries means the equivalence of a certain amount
of the currency of the one in the currency of the
other, supposing the currency of both to be of the
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precise weight and purity fixed by their respective
mints. The exchange between the two countries
is said to be at par when bills are negotiated on
this footing; i. e., when a bill for £100 drawn on
London sells in Paris for 2,520 frs., and vice versa.
Bowen, Pol. Econ. 284, 11 East, 267.
PAR. Lat. Equal.
Par delictum. Equal guilt. "This is not a case
of par delictum. It is oppression on one side and
submission on the other. It never can be predi-
cated as par delictum when one holds the rod
and the other bows to it." 6 Maule & S. 165. See
In Pari Delicto.
Par oneri. Equal to the burden or charge, or to
the detriment or damage.
PAR IN PAREM IMPERIUM NON HABET.
Jenk.Cent. 174. An equal has no dominion over
an equal.
PARACHRONISM. Error in the computation of
time.
PARACIUM. The tenure between parceners, viz.,
that which the youngest owes to the eldest with-
out homage or service. Domesday.
PARAGE, or PARAGIUM. An equality of blood
or dignity, but more especially of land, in the par-
tition of an inheritance between co-heirs. Co. Litt.
166b. More properly, however, an equality of
condition among nobles, or persons holding by a
noble tenure. Thus, when a fief is divided among
brothers, the younger hold their part of the elder
by parage;  e., without any homage or service.
Also the portion which a woman may obtain on
her marriage. Cowell.
PARAGRAPH. A distinct part of a discourse or
writing, any section or subdivision of writing or
chapter which relates to particular point, whether
consisting of one or many sentences. Lehmann v.
Revell, 354 Ill. 262, 188 N.E. 531, 540.
An entire or integral statement of a cause of
action equivalent to a count at common law. Bail-
ey v. Mosher, 11 C.C.A. 304, 63 F. 488.
A part or section of a statute, pleading, affidavit,
etc., which contains one article, the sense of which
is complete. McClellan v. Hein, 56 Neb. 600, 77
N.W. 120; Hill v. Fairhaven & W. R. Co., 75 Conn.
177, 52 A. 725; Marine v. Packham, 3 C.C.A. 210,
52 F. 579. The term in an act of congress will be
construed to mean section whenever to do so ac-
cords with the legislative intent; Alfrey v. Col-
bert, 93 C.C.A. 517, 168 F. 231.
PARALLEL. Extending in the same direction and
in all parts equidistant; having the same direction
or tendency. Postal Tel. C. Co. v. R. Co., 88 Va.
920, 14 S.E. 803.
In the specification of a patent the word has been con-
strued in its popular sense of going side by side and not
in its purely mathematical sense; 2 App.Cas. 423; and so
in Fratt v. Woodward, 32 Cal. 231, 91 Am.Dec. 573; Wil-
liams v. Jackson, 5 Johns. (N.Y.) 489; where it was held
that parallel lines were not necessarily straight lines. For
two lines of street railway to be "parallel," within the
meaning of a statute, it may not be necessary that the two
lines should be parallel for the whole length of each or
either route. Exact parallelism is not contemplated. Cro-
nin v. Highland St. Ry. Co.. 144 Mass. 254, 10 N.E. 833.
And see East St. Louis Connecting Ry., Co. v. Jarvis, 34
C.C.A. 639, 92 F. 735; Louisville & N. R. Co. v. Kentucky,
16 S.Ct. 714, 161 U.S. 677, 40 L. Ed. 849.
PARALYSIS. In its popular rather than medical
sense, signifies that the part of the body so af-
flicted, as an arm, is numb. Hudson v. Kansas
City Rys. Co., Mo.Sup., 246 S.W. 576, 578.
PARAMOUNT. Above; upwards. Kelh. Norm.
Dict. Paramount especifió, above specified.
Plowd. 209a. Higher; superior; pre-eminent; of
the highest rank or nature. Board of Com'rs of
Big Horn County v. Bench Canal Drainage Dist.,
56 Wyo. 285, 108 P.2d 590, 594. Malone v. Kansas
City Rys. Co., Mo.App., 232 S.W. 782, 785. That
which is superior; usually applied to the highest
lord of the fee of lands, tenements, or heredita-
ments, as distinguished from the mesne (or inter-
mediate) lord. Fitzh. Nat. Brev. 135.
PARAMOUNT EQUITY. An equitable right or
claim which is prior, superior, or preferable to
that with which it is compared.
PARAMOUNT TITLE. In the law of real prop-
erty, properly one which is superior to the title
with which it is compared, in the sense that the
former is the source or origin of the latter. It is,
however, frequently used to denote a title which
is simply better or stronger than another, or will
prevail over it. Isaacs v. Maupin, 191 Ky. 527, 231
S.W. 49, 51. But this use is scarcely correct, un-
less the superiority consists in the seniority of
the title spoken of as "paramount." Hoopes v.
Meyer, 1 Nev. 444; Jones & Brindisi, Inc., v. Bern-
stein, 119 Misc.Rep. 697, 197 N.Y.S. 263, 265.
PARANOIA. See Insanity.
PARAPH. A flourish at the end of a signature.
In the Middle Ages this was a sort of rude safe-
guard against forgery. Webster, Dict.
Also, as in Louisiana, the signature itself, such
as the official signature of a notary. Harz v. Gow-
land, 126 La. 674, 52 So. 986-988.
PARAPHERNA. In the civil law. Goods brought
by wife to husband over and above her dowry
(dos). Voc. Jur. Utr.; Fleta, lib. 5, c. 23, § 6;
Mack. C. L. § 529.
In mediaeval times the "res parapherna" were all the
goods other than the "dos." These the husband did not
own and of them the wife could make her will. 3 Holdsw.
Hist. E. L. 426.
PARAPHERNAL PROPERTY. See Parapherna-
lia.
PARAPHERNALIA. The separate property of a
married woman, other than that which is included
in her dowry, or dos.
The separate property of the wife is divided into dotal
and extradotal. Dotal property is that which the wife
brings to the husband to assist him in bearing the ex-
penses of the marriage establishment. Extradotal proper-
ty, otherwise called "paraphernal property," is that which
forms no part of the dowry. Civ. Code La. art. 2335. It
is property brought to the marriage by one of the spouses.
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There can be no such thing as paraphernal property prior
to marriage; Le Boeuf v. Melancon, 131 La. 148, 59 So.
102.
Those goods which a woman is allowed to have,
after the death of her husband, besides her dower,
consisting of her apparel and ornaments, suitable
to her rank and degree. 2 Bl. Comm. 436.
Those goods which a wife could bequeath by her
testament. 2 Poll. & Maitl. 427.
PARAPHERNAUX, BIENS. Fr. In French law.
All the wife's property which is not subject to the
regime dotal; and of these articles the wife has
the entire administration; but she may allow the
husband to enjoy them, and in that case he is not
liable to account. Brown.
PARASCEVE. The sixth day of the last week in
Lent, particularly called "Good Friday." In Eng-
lish law, it is a dies non juridicus.
PARASYNEXIS. In the civil law. A conventicle,
or unlawful meeting.
PARATITLA. In the civil law. Notes or abstracts
prefixed to titles of law, giving a summary of their
contents. Cod. 1, 17, 1, 12. An abbreviated explan-
ation of some titles or books of the Code or Digest.
PARATUM HABEO. Lat. I have him in readi-
ness. The return by the sheriff to a capias ad
respondendum, signifying that he has the defend-
ant in readiness to be brought into court. This
was a fiction, where the defendant was at large.
Afterwards he was required, by statute, to take
bail from the defendant, and he returned cepi cor-
pus and bailbond. But still he might be ruled to
bring in the body; White v. Fitler, 7 Pa. 533.
PARATUS EST VERIFICARE. Lat. He is ready
to verify. The Latin form for concluding a plead-
ing with a verification, (q. v.).
PARAVAIL. Inferior; subordinate. Tenant par-
avail signified the lowest tenant of land, being the
tenant of a mesne lord. He was so called because
he was supposed to make "avail" or profit of the
land for another. Cowell; 2 Bl. Comm. 60.
PARCEL, v. To divide an estate. Bac. Abr. Con-
ditions (0).
PARCEL, n. A small package or bundle. See
Package.
The word "parcel" is not a sufficient description of the
property alleged in an indictment to have been stolen.
The prisoner was indicted for stealing "one parcel, of the
value of one shilling, of the goods," etc. The parcel in
question was taken from the hold of a vessel, out of a box
broken open by the prisoner. Held an insufficient descrip-
tion; 7 Cox, C. C. 13.
A part or portion of land. State v. Jordan, 36
Fla. 1, 17 So. 742; Johnson v. Sirret, 153 N.Y.
51, 46 N.E. 1035; Chicago, M. & St. P. Ry. Co. v.
Town of Churdan, 196 Iowa 1057, 195 N.W. 996,
997. A part of an estate. Martin v. Cole, 38 Iowa,
141; 1 Comyns, Dig. Abatement (H 51), Grant (E
10). It may be synonymous with lot. Terre Haute
v. Mack, 139 Ind. 99, 38 N.E. 468.
PARCEL MAKERS. Two officers in the excheq-
uer who formerly made the parcels or items of the
escheators' accounts, wherein they charged them
with everything they had levied for the king dur-
ing the term of their office. Cowell.
PARCELLA TERME. A parcel of land.
PARCELS. A description of property, formally
set forth in a conveyance, together with the bound-
aries thereof, in order to its easy identification.
PARCELS, BILL OF. An account of the items
composing a parcel or package of goods, trans-
mitted with them to the purchaser. See, further,
Bill of Parcels under "Bill," 8.
PARCENARY. The state or condition of holding
title to lands jointly by parceners, before the com-
mon inheritance has been divided. Center v.
Kramer, 112 Ohio St. 269, 147 N.E. 602, 605.
PARCENER. A joint heir; one who, with others,
holds an estate in co-parcenary, (q. v.). Gibson v.
Johnson, 331 Mo. 1198, 56 S.W.2d 783, 88 A.L.R.
369.
PARCHMENT. Sheep-skins dressed for writing,
so called from Pergamus, Asia Minor, where they
were invented. Used for deeds, and used for writs
of summons in England previous to the judicature
act, 1875. Wharton.
The skin of a lamb, sheep, goat, young calf, or
other animal, prepared for writing on; also, any
of various papers made in imitation thereof. Web-
ster, Dict.
PARCO FRACTO. Pound-breach; also the name
of an old English writ against one who violently
breaks a pound and takes beasts which, for some
trespass done, or some other just cause, were law-
fully impounded.
PARCUS. A park, (q. v.). A pound for stray
cattle. Spelman.
PARDON. An act of grace, proceeding from the
power intrusted with the execution of the laws,
which exempts the individual on whom it is be-
stowed from the punishment the law inflicts for
a crime he has committed. tr. S. v. Wilson, 7 Pet.
160, 8 L.Ed. 640; Ex parte Garland, 4 Wall. 380,
18 L.Ed. 366; Ex parte Wells, 18 How. 307, 15 L.
Ed. 421; Moore v. State, 43 N.J.Law, 241, 39 Am.
Rep. 558; Ex parte Rice, 72 Tex.Cr.R. 587, 162 S.
W. 891, 899; People v. Hale, 64 Cal.App. 523, 222
P. 148, 151; Ex parte Miers, 124 Tex.Cr.R. 592, 64
S.W.2d 778.
It releases punishment and blots out the exist-
ence of guilt, so that in the eyes of the law the
offender is as innocent as if he had never commit-
ted the offense. U. S. ex rel. Palermo v. Smith,
C.C.A.N.Y., 17 F.2d 534, 535; Ex parte Jones, 25
Okl.Cr. 347, 220 P. 978, 34 A.L.R. 206. It implies
guilt and does not proceed on the theory of inno-
cence of the person pardoned. State v. Cullen, 14
Wash.2d 105, 127 P.2d 257, 259.
A "pardon" releases the offender from the entire punish-
ment prescribed for the offense, and from all the disabili-
ties consequent on his conviction, while by a "parole" a
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PARENT
convict is merely released before the expiration of his
term, to remain subject during the remainder thereof to
supervision by the public authority, and to return to im-
prisonment on violation of the condition of the parole.
Board of Prison Com'rs v. De Moss, 157 Ky. 289, 163 S.W.
183, 187.
A pardon, to be effective, must be accepted; Burdick v.
U. S., 35 S.Ct. 267, 268, 236 U.S. 79, 59 L.Ed. 476; but a
commutation is merely a cessation of the exercise of sover-
eign authority, and does not obliterate guilt nor restore
civil rights, and need not be accepted by the convict to be
operative; Chapman v. Scott, D.C.Conn., 10 F.2d 156, 159;
In re Charles, 115 Kan. 323, 222 P. 606, 608. A commuta-
tion is simply a remission of a part of the punishment, a
substitution of a less penalty for the one originally im-
posed; State v. District Court of Eighteenth Judicial Dist.
in and for Blaine County, 73 Mont. 541, 237 P. 525, 527;
while a "pardon" avoids or terminates punishment for
crime; U. S. v. Commissioner of Immigration at Port of
New York, C.C.A.N.Y., 5 F.2d 162, 165.
The distinction between amnesty and pardon is one
rather of philological interest than of legal importance.
Knote v. U. S., 95 U.S. 149, 153, 24 L.Ed. 442, 443. This
is so as to their ultimate effect, but there are incidental
differences of importance. They are of different char-
acter and have different purposes. The one overlooks of-
fense; the other remits punishment. The first is usually
addressed to crimes against the sovereignty of the state,
to political offenses, forgiveness being deemed more ex-
pedient for the public welfare than prosecution and pun-
ishment. The second condones infractions of the peace of
the state. Amnesty is usually general, addressed to classes
or even communities-a legislative act, or under legislation,
constitutional or statutory-the act of the supreme magis-
trate. There may or may not be distinct acts of accept-
ance. If other rights are dependent upon it and are as-
serted, there is affirmative evidence of acceptance. Bur-
dick v. U. S., 35 S.Ct. 267, 236 U.S. 79, 271, 59 L.Ed. 476.
"Pardon" applies only to the individual, releases him from
the punishment fixed by law for his specific offense, but
does not affect the criminality of the same or similar acts
when performed by other persons or repeated by the same
person.
Absolute or Unconditional Pardon. One which
frees the criminal without any condition what-
ever. That which reaches both the punishment
prescribed for the offense and the guilt of the of-
fender. It obliterates in legal contemplation the
offense itself. Ex parte Collins, 32 Okl.Cr. 6, 239
P. 693, 696. It goes no further than to restore the
accused to his civil rights and remit the penalty
imposed for the particular offense of which he was
convicted in so far as it remains unpaid. State v.
Cullen, 14 Wash.2d 105, 127 P.2d 257, 259.
Conditional Pardon. One to, which a condition is
annexed, performance of which is necessary to
the validity of the pardon. Ex parte Hunt, 10
Ark. 284; State v. Fuller, 1 McCord, S.C., 178. A
pardon which does not become operative until
the grantee has performed some specific act, or
where it becomes void when some specific event
transpires. Ex parte Collins. 32 Okl.Cr. 6, 239 P.
693, 697. One granted on the condition that it
shall only endure until the voluntary doing of
some act by the person pardoned, or that it shall
be revoked by a subsequent act on his part, as
that he shall leave the state and never return.
Ex parte Janes, 1 Nev. 319; State V. Wolfer, 53
Minn. 135, 54 N.W. 1065, 19 L.R.A. 783, 39 Am.St.
Rep. 582; State v. Barnes, 32 S.C. 14, 10 S.E. 611,
6 L.R.A. 743, 17 Am.St.Rep. 832; People v. Burns,
77 Hun, 92, 28 N.Y.S. 300.
Full pardon. One freely and unconditionally
absolving party from all legal consequences, direct
and collateral, of crime and conviction. Warren
v. State, 127 Tex.Cr.R. 71, 74 S.W.2d 1006, 1008.
Executive pardon. See Executive Pardon.
General Pardon. One granted to all the persons
participating in a given criminal or treasonable
offense (generally political), or to all offenders of
a given class or against a certain statute or within
certain limits of time. But "amnesty" is the more
appropriate term for this. It may be express, as
when a general declaration is made that all of-
fenders of a certain class shall be pardoned, or
implied, as in case of the repeal of a penal statute.
Roberts v. State, 2 Over. (Tenn.) 423.
Partial pardon. That which remits only por-
tion of punishment or absolves from only por-
tion of legal consequences of crime. Warren v.
State, 127 Tex.Cr.R. 71, 74 S.W.2d 1006, 1008.
PARDONERS. In old English law. Persons who
carried about the pope's indulgences, and sold
them to any who would buy them.
PARENS. Lat. In Roman law. A parent; orig-
inally and properly only the father or mother of
the person spoken of; but also, by an extension of
its meaning, any relative, male or female, in the
line of direct ascent.
"PARENS" EST NOMEN GENERALE AD OM-
NE GENUS COGNATIONIS. "Parent" is a
name general for every kind of relationship. Co.
Litt. 80; Littleton § 108; Mag. Cart. Joh. c. 50.
PARENS PATRL ZE. Father of his country; par-
ent of the country. In England, the king. In the
United States, the state, as a sovereign-referring
to the sovereign power of guardianship over per-
sons under disability; In re Turner, 94 Kan. ns,
145 P. 871, 872, Ann.Cas.1916E, 1022; such as min-
ors, and insane and incompetent persons; McIn-
tosh v. Dill, 86 Okl. 1, 205 R 917, 925.
PARENT. The lawful father or the mother of a
person. Appeal of Gibson, 154 Mass. 378; 28 N.E.
296; Ellis v. Hewitt, 15 Ga.App. 693, 84 S.E. 185,
187; In re Tombo, 86 Misc. 361, 149 N.Y.S. 219,
221; One who procreates, begets, or brings forth
offspring. McDonald v. Texas Employers' Ins.
Ass'n, Tex.Civ.App., 267 S.W. 1074, 1075.
This word is distinguished from "ancestors" in including
only the immediate progenitors of the person, while the
latter embraces his more remote relatives in the ascending
line. The word "parents" should therefore not ordinarily
be construed to include grandparents. In re Spooner's Es-
tate, 172 Wis. 174, 177 N.W. 598, 600. But by the civil law,
grandfathers and grandmothers, and other ascendants,
were, in certain cases, considered parents. Dict. de Jur.
Parents; Corn. v. Anderson, 1 Ashm. (Pa.) 55; 2 Kent 159;
5 East 223.
The term literally can apply only to a father or mother
related by blood, including the parent of an illegitimate
child; Commonwealth v. Wibner, 73 Pa.Super.Ct. 349, 351;
and excluding a stepfather or stepmother or one standing
in loco parentis; State v. District Court of Second Judi-
cial Dist. of Montana in and for Silver Bow County, 66
Mont. 427, 213 P. 802, 804; State v. Barger, 14 Ohio App.
127, 128; In re Remske, 95 Misc. 330, 160 N.Y.S. 715, 716;
Coakley v. Coakley, 216 Mass. 71, 102 N.E. 930, 932, Ann.
Cas.1915A, 867. In statutes, however, the word is com-
monly construed as including a stepmother; State v.
Juvenile Court of Ramsey County, 163 Minn. 312, 204 N.W.
•
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21, 22, (see. also, Sovereign Camp, W. O. W., v. Cole, 124
Miss. 299, 86 80. 802, 804); and likewise adopting parents;
Ransom v. New York C. & St. L. Ry. Co., 93 Ohio St. 223,
112 N.E. 586, L.R.A.1916E, 704; Commonwealth v. Kirk,
212 Ky. 646, 279 S.W. 1091, 1092, 44 A.L.R. 816; In re
Yates' Estate, 108 Kan. 721, 196 P. 1077; but not as includ-
ing the father of an illegitimate child; People v. Rupp,
219 Ill.App. 269, 271; Howard v. U. S., D.C.Ky., 2 F.2d
170, 173; Ex parte Newsome, 212 Ala. 168, 102 So. 216,
218; People v. Fitzgerald, 167 App.Div. 85, 152 N.Y.S. 641,
643; State ex rel. Canfield v. Porterfield, 222 Mo.App. 553,
292 S.W. 85, 86.
PARENTAGE. Kindred in the direct ascending
line. See 2 Bouv. Inst. n. 1955.
PARENTELA. The sum of those persons who
trace descent from one ancestor. 2 Poll. & Maitl.
296.
In old English law. Parentela, or de parentela
se tollere, signified a renunciation of one's kindred
and family. This was, according to ancient cus-
tom, done in open court, before the judge, and in
the presence of twelve men, who made oath that
they believed it was done for a just cause. We
read of it in the laws of Henry I. After such ab-
juration, the person was incapable of inheriting
anything from any of his relations, etc. Enc.
Lond.
PARENTHESIS. Part of a sentence occurring in
the middle thereof, and inclosed between marks
like ( ), the omission of which part would not in-
jure the grammatical construction of the rest of
the sentence. Wharton; In re Schilling, 53 Fed.
81, 3 C.C.A. 440. A word, phrase, or sentence, by
way of comment or explanation, inserted in, or at-
tached to, a sentence which would be grammati-
cally complete without it. State v. Morgan, 133
La. 1033, 63 So. 509, 512.
PARENTICIDE. One who murders a parent; also
the crime so committed.
PARENTUM EST LIBEROS ALERE ATIAM
NOTHOS. It is the duty of parents to support
their children even when illegitimate. Lofft, .222.
PARERGON. One work executed in the intervals
'of another; a subordinate task. Particularly, the
name of a work on the Canons, in great repute,
by Ayliffe.
PARES. Lat. A person's peers or equals; as
the jury for the trial of causes, who were orig-
inally the vassals or tenants of the lord, being the
equals or peers of the parties litigant; and, as
the lord's vassals judged each other in the lord's
courts, so the sovereign's vassals, or the lords
themselves, judged each other in the sovereign's
courts. 3 Bl. Comm. 349.
PARES CURIE. Peers of the court. . Vassals
who were bound to attend the lord's court.
PARES REGNI. Peers of the realm. Spelman.
PARESIS. In medical jurisprudence. Progres-
sive general paralysis, involving or leading to the
form of insanity known as "dementia paralytica."
Popularly, but not very correctly, called "soften-
ing of the brain." See Insanity.
The term is applied to a group of mental and
bodily symptoms, developing usually late in life
and as a result of previous syphilis. The condi-
tion differs from the various insanities, in that
definite alterations of the surface of the brain and
its membranes are found, in the form of chronic
inflammation. Loss of memory, passionate out-
bursts, delusions of grandeur, restlessness and in-
somnia, with final absolute dementia, are the
chief mental symptoms, while physically muscu-
lar weakness, tremor, particularly of the lips and
tongue, ataxia, and various convulsive seizures
are seen. Losh v. Winters Nat. Bank & Trust
Co., Ohio App., 46 N.E.2d 443, 448.
PARI CAUSA. Lat. With equal right; upon an
equal footing; equivalent in rights or claims.
PARI DELICTO. Lat. In equal fault; in a sim-
ilar offense or crime; equal in guilt or in legal
fault. See In Pari Delicto.
PARI MATERIA. Lat. Of the same matter; on
the same subject; as, laws pari materia must be
construed with reference to each other. Bac.Abr.
"Statute," I, 3; Dupont v. Mills, Del., 196 A. 168,
177, 119 A.L.R. 174.
PARI MUTUEL. A mutual stake or wager; a
betting pool. Utah State Fair Ass'n v. Green, 68
Utah, 251, 249 P. 1016, 1028. See, also, Pompano
Horse Club v. State, 93 Fla. 415, 111 So. 801, 813,
52 A.L.R. 51. A form of betting on horses or dogs
in which those who bet on winner share total
stakes less a small percent to the management..
Donovan v. Eastern Racing Ass'n, 324 Mass. 393,
86 N.E.2d 903, 906.
PARI PASSU. Lat. By an equal progress; equa-
bly; ratably; without preference. Coote, Mortg.
56. Used especially of creditors who, in marshal-
ling assets, are entitled to receive out of the same
fund without any precedence over each other.
PARI PASSU BONDS. A name given in Scot-
land to certain bonds secured upon lands which
share an equal benefit of the security. Where sev-
eral securities are created over the same lands
by separate bonds and dispositions in security,
they would ordinarily have priority according to-
the date of registration of the sasine or bond, as
the case may be. If it is intended to have them
rank as pari passu, it is usual to insert a clause
in each bond declaring that they shall be so-
ranked without regard to their priority of regis-
tration. 9 Jurid. Rev. 74.
PARI RATIONE. Lat. For the like reason; by
like mode of reasoning.
PARIA COPULANTUR PARIBUS. Like things-
unite with like. Bac. Max.
PARIBUS SENTENTIIS REUS ABSOLVITUR.
Where the opinions are equal, [where the court
is equally divided,] the defendant is acquitted. 4
Inst. 64.
PARIENTES. In Spanish law. Relations. White,.
New Recop. b. 1, tit. 7, c. 5, § 2.
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PARIES. Lat. In the civil law. A wall. Paries
est, sive murus, sive maceria est. Dig. 50, 16,
157.
PARIES COMMUNIS. A common wall; a party-
wall. Dig. 29, 2, 39.
PARIS, DECLARATION OF. See Declaration.
PARISH. In English ecclesiastical law. A cir-
cuit of ground, committed to the charge of one
parson or vicar, or other minister having cure of
souls therein. 1 Bl. Comm. 111. Wilson v. State,
34 Ohio St. 199. The precinct of a parish church,
and the particular charge of a secular priest.
Cowell. An ecclesiastical division of a town or
district, subject to the ministry of one pastor.
Brande.
In New England. A division of a town, orig-
inally territorial, but which now constitutes a
quasi-corporation, consisting of those connected
with a certain church. Weston v. Hunt, 2 Mass.
501. Synonymous with church and used in the
same sense as society. Ayres v. Weed, 16 Conn.
299. A corporation established for the mainte-
nance of public worship, which may be cotermin-
ous with a town, or include only part of it, A
precinct or parish is a corporation established
solely for the purpose of maintaining public wor-
ship, and its powers are limited to that object. It
may raise money for building and keeping in re-
pair its meetinghouse and Supporting its minister,
but for no other purpose. A town is a civil and
political corporation, established for municipal
purposes. They may both subsist together-in the
same territory, and be composed of the same per-
sons. Milford v. Godfrey, 1 Pick. (Mass.) 91.
In Pennsylvania the term has no legal significa.
tion and is used merely in its general sense. If
used there in ecclesiastical divisions, it has just
such importance and significance as may be given
it under ecclesiastical regulations. In re St. Cas-
imir's Polish Roman Catholic Church of Shenan-
doah, 273 Pa. 494, 117 A. 219, 220.
In Louisiana. A territorial division of the state
corresponding to what is elsewhere called a "coun-
ty." Sherman v. Parish of Vermillion, 51 La.Ann.
880, 25 So. 538; Attorney General v. Detroit Com-
mon Council, 112 Mich. 148, 70 N.W. 450, 37 L.R.A.
211.
PARISH APPRENTICE. In English law. The
children of parents unable to maintain them may,
by law, be apprenticed, by the guardians or over-
seers of their parish, to such persons as may be
willing to receive them as apprentices. Such chil-
dren are called "parish apprentices." 2 Steph.
Comm. 230.
PARISH CHURCH. This expression has various
significations. It is applied sometimes to a select
body of Christians, forming a local spiritual as-
sociation, and sometimes to the building in which
the public worship of the inhabitants of, a parish
IS celebrated; but the true legal notion of a paro-
chial church is a consecrated place, having at-
tached to it the rights of burial and the admin.
istration of the sacraments. Story, J., Pawlet v.
Clark, 9 Cranch, 326, 3 L.Ed. 735.
PARISH CLERK. In English law. An officer,
in former times often in holy orders, and appoint-
ed to officiate at the altar; now his duty consists
chiefly in making responses in church to the min-
ister. By common law he has a freehold in his
office, but it seems now to be falling into desue-
tude. 2 Steph. Comm. 700; Mozley & Whiteley.
PARISH CONSTABLE. A petty constable exer-
cising his functions within a given parish. Moz-
ley & Whiteley. See Constable.
PARISH COURT. The name of a court estab-
lished in each parish. in Louisiana, and corres-
ponding to the county courts or common pleas
courts in the other states. It has a limited civil
jurisdiction, besides general probate powers.
PARISH OFFICERS. Church-wardens, over-
seers, and constables.
PARISH PRIESTS. In English law. The parson;
a minister who holds a parish as a benefice. If
the predial tithes are appropriated, he is called
"rector;" if impropriated, "vicar." Wharton.
PARISHIONERS. Members of a parish. In Eng-
land, for many purposes they form a body politic.
PARITOR. A beadle; a summoner to the courts
of civil law.
PARITY. Equality. Arkansas State Highway
Commission v. Otis & Co., 182 Ark. 242, 31 S.W.2d
427, 431.
PARIUM EADEM EST RATIO, IDEM JUS. Of
things equal, the reason is the same, and the same
is the law.
PARIUM JUDICIUM. The judgment of peers;
trial by a jury of one's peers or equals.
PARK, v. Voluntarily and temporarily to leave
an automobile, especially on a street or highway,
when not in use. Kastler v. Tures, 191 Wis. 120,
210 N.W. 415, 417; Ex parte Corvey, 220 Mo.App.
602, 287 S.W. 879, 881; Blashfield, Cyc. of Auto-
mobile Law and Prac., Perm. Ed., §§ 1191-1212,
2160.50, 5963.
PARK, n. In American law. An inclosed pleas-
ure-ground in or near a city, set apart for the
recreation of the public. Riverside v. MacLain,
210 Ill. 308, 71 N.E. 408, 66 L.R.A. 288, 102 Am.St.
Rep. 164; People v. Green, 52 How. Prac., N.Y.,
440; Archer v. Salinas City, 93 Cal. 43, 28 P. 839,
16 L.R.A. 145; Ehmen v. Gothenburg, 50 Neb.
715, 70 N.W. 237. A pleasure ground for the rec-
reation of the public to promote its health and
enjoyment. Booth v. City of Minneapolis, 163
Minn. 223, 203 N.W. 625, 626; Williams v. Galla-
tin, 229 N.Y. 248, 128 N.E. 121, 122, 18 A.L.R. 1238.
A piece of ground enclosed for purposes of pleasure, ex-
ercise, amusement, or ornament. Perrin v. R. Co., 36 N.
Y. 120; Blank v. Browne, 216 N.Y.S. 664, 668, 217 App. Div.
624. A place for the resort of the public for recreation, air,
and light; a place open for everyone. Price v. Plainfield,
40 N.J.L. 613; Kennedy v. City of Nevada, 222 Mo.App.
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459, 281 S.W. 56, 58; Baird v. Board of Recreation Com'rs
of Village of South Orange, 108 N.J.Eq. 91, 154 A. 204, 208.
A detached tract of ground set apart and maintained for
public use, generally of quite sizable proportions devoted
to purposes of ornamentation and recreation, usually
platted out with trees and ornamented in a way pleasing
to the eye as well as furnishing an opportunity for open-
air recreation. Kupelian v. Andrews, 233 N.Y. 278, 135 N.
E. 502, 503; Ramstad v. Carr, 31 N. D. 504, 154 N.W. 195,
200, L.R.A.1916B, 1160; Los Angeles County v. Dodge, 51
Cal.App. 492, 197 P. 403, 409.
As applied to pleasure grounds and spaces or open places
for public use or public recreation owned by towns, the
term is largely one of quite modern usage, and until re-
cent years such places were in popular speech spoken of as
"squares" and "commons." Woodward v. City of Des
Moines, 182 Iowa 1102, 165 N.W. 313, 314.
In English law. A tract of inclosed ground priv-
ileged for keeping wild beasts of the chase, par-
ticularly deer; an inclosed chase extending only
over a man's own grounds. 2 Bl. Comm. 38; 13
Car. II, c. 10. A pound. Reg. Orig. 166; Cowell.
PARK-BOTE. To be quit of inclosing a park or
any part thereof.
PARKER. A park-keeper.
PARKING. In municipal law and administration.
A strip of land, lying either in the middle of the
street or in the space between the building line
and the sidewalk, or between the sidewalk and the
driveway, intended to be kept as a park-like space,
that is, not built upon, but beautified with turf,
trees, flowerbeds, etc.  See Downing v. Des
Moines, 124 Iowa 289, 99 N.W. 1066. See, also,
Parkway.
PARKING METER. A clock set on a post, meas-
uring time of parking. It provides mechanical
assistance in the enforcement of parking limita-
tion. Cassidy v. City of Waterbury, 130 Conn.
237, 33 A.2d 142, 144; Blashfield, Cyc. of Auto-
mobile Law and Prac., Perm. Ed., § 78.10.
PARKING PLACE. A place where motor vehi-
cles may be left parked or standing and removed
by the owner at pleasure. Mobile Light & R. Co.,
211 Ala. 525, 101 So. 177, 178, 34 A.L.R. 921.
PARKWAY. An ornamental part of a street
which may be used for recreation purposes. Ku-
pelian v. Andrews, 233 N.Y. 278, 135 N.E. 502.
In that sense, substantially synonymous with
"parking" (q. v.). Also, an attractive street or
highway, ornamented with shrubbery and the
like. Municipal Securities Corporation v. Kansas
City, 265 Mo. 252, 177 S.W. 856, 860.
PARLE HILL, or PARLING HILL. A hill where
courts were anciently held. Cowell.
PARLIAMENT. The supreme legislative assem-
bly of Great Britain and Ireland, consisting of
the king or queen and the three estates of the
realm, viz., the lords spiritual, the lords temporal,
and the commons. 1 Bl. Comm. 153.
High Court of Parliament. In English law.
The English parliament, as composed of the/house
of peers and house of commons; or the house of
lords sitting in its judicial capacity.
PARLIAMENTARY. Relating or belonging to,
connected with, enacted by or proceeding from, or
characteristic of, the English parliament in par-
ticular, or any legislative body in general.
PARLIAMENTARY AGENTS. Persons who act
as solicitors in promoting and carrying private
bills through parliament. They are usually at-
torneys or solicitors, but they do not usually con-
fine their practice to this particular department.
Brown.
PARLIAMENTARY COMMITTEE. A committee
of members of the house of peers or of the house
of commons, appointed by either house for the
purpose of making inquiries, by the examination
of witnesses or otherwise, into matters which
could not be conveniently inquired into by the
whole house. Wharton.
PARLIAMENTARY LAW. The general body of
enacted rules and recognized usages which gov-
erns the procedure of legislative assemblies and
other deliberative bodies.
PARLIAMENTARY TAXES. See Tax.
PARLIAMENTUM. L. Lat. A legislative body
in general or the English parliament in particular.
PARLIAMENTUM DIABOLICUM. A parliament
held at Coventry, 38 Hen. VI., wherein Edward,
Earl of March, (afterwards King Edward IV.,)
and many of the chief nobility were attainted,
was so called; but the acts then made were an-
nulled by the succeeding parliament. Jacob.
PARLIAMENTUM INDOCTUM. Unlearned or
lack-learning parliament. A name given to a par-
liament held at Coventry in the sixth year of
Henry IV. under an ordinance requiring that no
lawyer should be chosen knight, citizen, or bur-
gess; "by reason whereof," says Sir Edward Coke,
"this parliament was fruitless, and never a good
law made thereat." 4 Inst. 48; 1 Bl. Comm. 177.
PARLIAMENTUM INSANUM. A parliament as-
sembled at Oxford, 41 Hen. III., so styled from
the madness of their proceedings, and because the
lords came with armed men to it, and contentions
grew very high between the king, lords, and com-
mons, whereby many extraordinary things were
done. Jacob.
PARLIAMENTUM RELIGIOSORUM. In most
convents there has been a common room into
which the brethren withdrew for conversation;
conferences there being termed "parliamentum."
Likewise, the societies of the two temples, or inns
of court, call that assembly of the benchers or
governors wherein they confer upon the common
affairs of 'their several houses a "parliament."
Jacob.
PAROCHIA EST LOCUS QUO DEGIT POPUL-
US ALICUJUS ECCLESIZE. 5 Coke, 67. A par-
ish is a place in which the population of a certain
church resides.
PAROCHIAL. Relating or belonging to a parish.
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PARSONAGE
PAROCHIAL CHAPELS. In English law. Plac-
es of public worship in which the rites of sacra-
ment and sepulture are performed.
PAROL. A word; speech; hence, oral or verb-
al; expressed or evidenced by speech only; not
expressed by writing; not expressed by sealed
instrument.
The pleadings in an action are also, in old law
French, denominated the "parol," because they
were formerly actual viva voce pleadings in
court, and not mere written allegations, as at
present. Brown.
As to parol "Agreement," "Arrest," "Demur-
rer," "Lease," and "Promise," see those titles.
PAROL EVIDENCE. Oral or verbal evidence;
that which is given by word of mouth; the ordi-
nary kind of evidence, given by witnesses in court.
3 Bl.Comm. 369. In a particular sense, and with
reference to contracts, deeds, wills, and other writ-
ings, parol evidence is the same as extraneous
evidence or evidence aliunde. See, also, Aliunde;
Extraneous Evidence; Oral Evidence.
PAROL EVIDENCE RULE. Under this rule,
when parties put their agreement in writing, all
previous oral agreements merge in the writing
and a contract as written cannot be modified or
changed by parol evidence, in the absence of a
plea of mistake or fraud in the preparation of
the writing. Russell v. Halteman's Adm'x, 287
Ky. 404, 153 S.W.2d 899, 904. But rule does not
forbid a resort to parol evidence not inconsistent
with the matters stated in the writing. Elkins v.
Super-Cold Southwest Co., Tex.Civ.App., 157 S.W.
2d 946, 947.
Under this rule, parol or extrinsic evidence is not
admissible to add to, subtract from, vary or contradict
judicial or official records or documents, or written in-
struments which dispose of property or are contractual in
nature, and which are valid, complete, unambiguous and
unaffected by accident or mistake. Wheeler, Kelly &
Hagny Inv. Co. v. Curts, 158 Kan. 312, 147 P.2d 737, 740.
PAROLE. In military law. A promise given by
a prisoner of war, when he has leave to depart
from custody, that he will return at the time ap-
pointed, unless discharged. Webster.
An engagement by a prisoner of war, upon be-
ing set at liberty, that he will not again take up
arms against the government by whose forces
he was captured, either for a limited period or
while hostilities continue.
In criminal law. A conditional release; condi-
tion being that, if prisoner makes good, he will
receive an absolute discharge from balance of
sentence, but, if he does not, he will be returned
to serve unexpired time. In re Eddinger, 236
Mich. 668, 211 N.W. 54, 55; Crooks v. Sanders,
123 S.C. 28, 115 S.E. 760, 762, 28 A.L.R. 940;
Board of Prison Com'rs v. De Moss, 157 Ky. 289,
163 S.W. 183, 187; Duehay v. Thompson, C.C.A.
Wash., 223 F. 305, 307; In re Sutton, 50 Mont. 88,
145 P. 6, 8, Ann.Cas.1917A, 1223. Release of con-
vict from imprisonment on certain conditions to
be observed by him, and suspension of sentence
during liberty thus granted. Ex parte Foster,
60 Okl.Cr.App. 50, 61 P.2d 37, 39.
PAROLS DE LEY. L. Fr. Words of law; tech-
nical words.
PAROLS FONT PLEA. Words make the plea.
5 Mod. 458.
PARQUET. In French law. The magistrates
who are charged with the conduct of proceedings
in criminal cases and misdemeanors. That part
of the bourse which is reserved for stock-brokers.
PARRICIDE. The crime of killing one's father;
also a person guilty of killing his father.
PARRICIDIUM. Lat. In the civil law. Parricide;
the murder of a parent. Dig. 48, 9, 9.
PARS. Lat. A part; a party to a deed, action,
or legal proceeding.
PARS ENITIA. In old English law. The priv-
ilege or portion of the eldest daughter in the par-
tition of lands by lot.
PARS GRAVATA. In old practice. A party ag-
grieved; the party aggrieved. Hardr. 50; 3 Leon.
237.
PARS PRO TOTO. Part for the whole; the name
of a part used to represent the whole; as the roof
for the house, ten spears for ten armed men, etc.
PARS RATIONABILIS. That part of a man's
goods which the law gave to his widow and chil-
dren. 2 Bl.Comm. 492.
PARS REA. A party defendant. St. Marlbr. c.
13.
PARS VISCERUM MATRIS. Part of the bowels
of the mother; i. e., an unborn child.
PARSON. The rector of a church; one that has
full possession of all the rights of a parochial
church. The appellation of "parson," however it
may be depreciated by familiar, clownish, and
indiscriminate use, is the most legal, most bene-
ficial, and most honorable title that a parish priest
can enjoy, because such a one, Sir Edward Coke
observes, and he only, is said vicem seu personam
ecclesice gerere, (to represent and bear the per-
son of the church.) 1 Bl.Comm. 384.
PARSON IMPARSONEE. In English law. A
clerk or parson in full possession of a benefice.
Cowell.
PARSON MORTAL. A rector instituted and in-
ducted for his own life. But any collegiate or
conventional body, to whom a church was forever
appropriated, was termed "persona immortalis."
Wharton.
PARSONAGE. A certain portion of lands, tithes,
and offerings, established by law, for the main-
tenance of the minister who has the cure of souls.
Tomlins.
The word is more generally used for the house
set apart for the residence of the minister. Moz-
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PART
ley & Whiteley. See Wells' Estate v. Congrega-
tional Church, 63 Vt. 116, 21 A. 270; Everett v.
First Presbyterian Church, 53 N.J.Eq. 500, 32 A.
747; State v. Kittle, 87 W.Va. 526, 105 S.E. 775,
776; St. Joseph's Church v. City of Detroit, 189
Mich. 408, 155 N.W. 588, 590.
PART. An integral portion, something essenti-
ally belonging to a larger whole; that which to-
gether with another or others makes up a whole.
First-Mechanics Nat. Bank of Trenton v. Norris,
134 N.J.Eq. 229, 34 A.2d 746, 749. A portion, share,
or purpart. One of two duplicate originals of a
conveyance or covenant, the other being called
"counterpart." Also, in composition, partial or
incomplete; as part payment, part performance.
Cairo v. Bross, 9 Ill.App. 406.
PART AND PERTINENT. In the Scotch law of
conveyancing. Formal words equivalent to the
English "appurtenances." Bell.
As to part "Owner," "Payment," and "Perform-
ance," see those titles.
PARTAGE. In French law. A division made be-
tween co-proprietors of a particular estate held
by them in common. It is the operation by means
of which the goods of a succession are divided
among the co-heirs; while licitation (q. v.) is an
adjudication to the highest bidder of objects which
are not divisible. Duverger.
PARTE INAUDITA. Lat. One side being un-
heard. Spoken of any action which is taken ex
parte.
PARTE NON COMPARENTE. Lat. The party
not having appeared. The condition of a cause
called "default."
PARTE QUACUMQ1UE INTEGRANTE SUB-
LATA, TOLLITUR TOTUM. An integral part
being taken away, the whole is taken away. 8
Coke, 41.
PARTEM ALIQUAM RECTE INTELLIGERE
NEMO POTEST, ANTEQUAM TOTUM, ITERUM
ATQUE ITERUM, PERLEGERIT. 3 Coke, 52. No
one can rightly understand any part until he has
read the whole again and again.
PARTES FINIS NIHIL HABUERUNT. In old
pleading. The parties to the fine had nothing;
that is, had no estate which could be conveyed
by it. A plea to a fine which had been levied by
a stranger. 2 Bl.Comm. 357; 1 P.Wms. 520.
PARTIAL. Relating to or constituting a part; not
complete; not entire or universal; not general or
total. United States Fidelity & Guaranty Co. v.
Baker, Tex.Civ.App., 65 S.W.2d 344, 346.
PARTIAL ACCOUNT. An account of an executor,
administrator, guardian, etc., not exhibiting his
entire dealings with the estate or fund from his
appointment to final settlement, but covering only
a portion of the time or of the estate. Marshall
v. Coleman, 187 Ill. 556, 58 N.E. 628.
PARTIAL AVERAGE. Another name for particu-
lar average. Peters v. Warren Ins. Co., 19 Fed.
Cas. 370. See Average.
PARTIAL DEPENDENCY. Test as to existence
of such dependency for purpose of workmen's
compensation is whether contributions were relied
on by claimants to aid and maintain them in pres-
ent position in life and whether they were to sub-
stantial degree depending on support or aid of em-
ployee at time of death. Ritzman v. Industrial
Commission, 353 Ill. 34, 186 N.E. 545, 546. Federal
Underwriters Exchange v. Hinkle, Tex.Civ.App.,
187 S.W.2d 122, 124.
PARTIAL EVICTION. That which takes place
when the possessor is deprived of only a portion
of his rights in the premises.
PARTIAL EVIDENCE. That which goes to estab-
lish a detached fact, in a series tending to the fact
in dispute.
It may be received, subject to be rejected as incompe-
tent, unless connected with the fact in dispute by proof of
other facts; for example, on an issue of title to real prop-
erty, evidence of the continued possession of a remote oc-
cupant is partial, for it is of a detached fact, which may
or may not be afterwards connected with the fact in dis-
pute. Code Civ.Proc.Cal. § 1834; Or. Laws 1920, § 696
(Code 1930, § 9-111).
PARTIAL INSANITY. Mental unsoundness al-
ways existing, although only occasionally mani-
fest; monomania. 3 Add. 79.
PARTIAL LOSS. A loss of a part of a thing or
of its value, or any damage not amounting (actual-
ly or constructively) to its entire destruction; as
contrasted with total loss.
Partial loss is one in which the damage done to the
thing insured is not so complete as to amount to a total
loss, either actual or constructive. In every such case the
underwriter is liable to pay such proportion of the sum
which would be payable on total loss as the damage sus-
tained by the subject of insurance bears to the whole value
at the time of insurance. 2 Steph.Comm. 132, 133; Crump.
Ins. § 331; Mozley & Whiteley. Partial loss implies a
damage sustained by the ship or cargo, which falls upon
the respective owners of the property so damaged; and,
when happening from any peril insured against by the pol-
icy, the owners are to be indemnified by the underwrit-
ers, unless in cases excepted by the express terms of the
policy. Padelford v. Boardman, 4 Mass. 548; Globe Ins.
Co. v. Sherlock, 25 Ohio St. 65; Willard v. Insurance Co.,
30 Mo. 35.
PARTIAL PAYMENT. See Payment.
PARTIAL VERDICT. See Verdict.
PARTIARIUS. Lat. In Roman law. A legatee
who was entitled, by the directions of the will,
to receive a share or portion of the inheritance
left to the heir.
PARTIBLE LANDS. Lands which might be divid-
ed; lands held in gavelkind. See 2 Poll. & Maitl.
268, 271; Gavelkind.
PARTICEPS. Lat. A participant; a sharer; an-
ciently, a part owner, or parcener.
PARTICEPS CRIMINIS. A participant in a crime;
an accomplice. One who shares or co-operates in
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PARTIES
a criminal offense, tort, or fraud. Alberger v.
White, •117 Mo. 347, 23 S.W. 92; Statct v. Fox, 70
N.J.L. 353, 57 A. 270.
PARTICIPATE. To receive or have a part or
share of; to partake of; experience in common
with others; to have or enjoy a part or share in
common with others; partake; as to "participate"
in a discussion. To take a part in; as to partici-
pate in joys or sorrows. Bew v. Travelers' Ins.
Co., 95 N.J.L. 533, 112 A. 859, 860, 14 A.L.R. 983.
To take equal shares and proportions; to share
or divide. 6 Ctl. 696. Participate in an estate.
To take as tenants in common. 28 Bea y . 266.
PARTICIPES PLURES SUNT QUASI UNUM
CORPUS IN EO QUOD UNUM JUS HABENT, ET
OPORTET QUOD CORPUS SIT INTEGRUM, ET
QUOD IN NULLA PARTE SIT DEFECTUS. Co.
Litt. 4. Many parceners are as one body, inas-
much as they have one right, and it is necessary
that the body be perfect, and that there be a de-
fect in no part.
PARTICULA. A small piece of land.
PARTICULAR. Relating to a part or portion of
anything; separate; sole; single; individual; spe-
cific; local; comprising a part only; partial in
extent; not universal. Opposed to general. State
v. Patterson, 60 Idaho 67, 88 P.2d 493, 497. Min-
neapolis Steel & Machinery Co. v. Casey Land
Agency, 51 N.D. 832, 201 N.W. 172, 175.
As to particular "Average," "Custom," "Estate,"
"Malice," and "Partnership," see those titles.
PARTICULAR LIEN. A particular lien is a right
to retain a thing for some charge or claim grow-
ing out of, or connected with, the identical thing.
Right to retain property of another on account of labor
employed or money expended on that specific property,
and such lien may arise by implication of law, usages of
a trade, or by express contract, General Motors Acceptance
Corporation v. Vaughn, 358 Ill. 541, 193 N.E. 483, 485.
PARTICULAR STATEMENT. This term, in use
in Pennsylvania, denotes a statement which a
plaintiff may be required to file, exhibiting in de-
tail the items of his claim, (or its nature, if
single,) with the dates and sums. It is a species
of declaration, but is informal and not required
to be methodical. Dixon v. Sturgeon, 6 Serg. & R.
(Pa.) 28.
PARTICULAR TENANT. The tenant of a particu-
lar estate. 2 Bl.Comm. 274. See Estate.
PARTICULARITY, in a pleading, affidavit, or the
like, is the detailed statement of particulars.
PARTICULARS. The details of a claim, or the
separate items of an account. When these are
stated in an orderly form, for the information of
a defendant, the statement is called a "bill of
particulars," (q. v.).
PARTICULARS OF BREACHES AND OBJEC-
TIONS. In an action brought, in England, for the
infringement of letters patent, the plaintiff is
bound to deliver with his declaration (now with his
statement of claim) particulars (i. e., details) of
the breaches which he complains of. Sweet.
PARTICULARS OF CRIMINAL CHARGES. A
prosecutor, when a charge is general, is frequently
ordered to give the defendant a statement of the
acts charged, which is called, in England, the
"particulars" of the charges.
PARTICULARS OF SALE. When property such
as land, houses, shares, reversions, etc., is to be
sold by auction, it is usually described in a docu-
ment called the "particulars," copies of which are
distributed among intending bidders. They should
fairly and accurately describe the property. Dart,
Vend. 113; 1 Da y . Cony . 511.
PARTIDA. Span. Part; a part. See Las Par-
tidas.
PARTIES. The persons who take part in the
performance of any act, or who are directly in-
terested in any affair, contract, or conveyance, or
who are actively concerned in the prosecution and
defense of any legal proceeding. U. S. to Use of
Edward Hines Lumber Co. v. Henderlong, C.C.Ind.,
102 F. 2; Robbins v. Chicago, 4 Wall. 672, 18 L.
Ed. 427; Green v. Bogue, 15 S.Ct. 975, 158 U.S. 478,
39 L.Ed. 1061; Hughes v. Jones, 116 N.Y. 67, 22 N.
E. 446, 5 L.R.A. 637, 15 Am.St.Rep. 386. See also
Party.
In the Roman civil law, the parties were desig-
nated as "actor" and "recs." In the common law,
they are called "plaintiff" and "defendant;" in
real actions, "demandant" and "tenant;" in equity,
"complainant" or "plaintiff" and "defendant;" in
Scotch law, "pursuer" and "defender;" in ad-
miralty practice, "libelant" and "respondent;" in
appeals, "appellant" and "respondent," sometimes,
"plaintiff in error" and "defendant in error;" in
criminal proceedings, "prosecutor" and "prisoner."
Classification
Formal, or proper parties are those who have
no interest in the controversy between the imme-
diate litigants, but have an interest in the subject-
matter which may be conveniently settled in the
suit, and thereby prevent further litigation; they
may be male parties or not, at the option of the
complainant. Chadbourne v. Coe, 2 C.C.A. 327,
51 F. 479; Sexton v. Sutherland, 37 N.D. 500, 164
N.W. 278, 281; Consolidated Gas Co. of New York
v. Newton, D.C.N.Y., 256 F. 238, 245; State v.
Municipal Savings & Loan Co., 111 Ohio St. 178,
144 N.E. 736, 740. Necessary parties are those
parties who have such an interest in the subject-
matter of a suit in equity, or whose rights are so
involved in the controversy, that no complete and
effective decree can be made, disposing of the mat-
ters in issue and dispensing complete justice, un-
less they are before the court in such a manner
as to entitle them to be heard in vindication or
protection of their interests. Chandler v. Ward,
188 Ill. 322, 58 N.E. 919; Chadbourne v. Coe, 2 C.
C.A. 327, 51 F. 480; Burrill v. Garst, 19 R.I. 38,
31 A. 436; Castle v. Madison, 113 Wis. 346, 89 N.
W. 156; Iowa County Sup'rs v. Mineral Point R.
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PARTIES
Co., 24 Wis. 132. Nominal parties are those who
are joined as plaintiffs or defendants, not because
they have any real interest in the subject-matter
or because any relief is demanded as against them,
but merely because the technical rules of plead-
ing require their presence on the record. It should
be noted that some courts make a further distinc-
tion between "necessary" parties and "indispensa-
ble" parties. Thus, it is said that the supreme
court of the United States divides parties in equity
suits into three different classes: (1) Formal par-
ties, who have no interest in the controversy be-
tween the immediate litigants, but have such an
interest in the subject-matter as may be conven-
iently settled in the suit, and thereby prevent fur-
ther litigation; (2) necessary parties, who have
an interest in the controversy, but whose interests
are separable from those of the parties before the
court, and will not be directly affected by a decree
which does complete and full justice between
them; (3) indispensable parties, who not only
have an interest in the subject-matter of the con-
troversy, but an interest of such a nature that a
final decree cannot be made without either affect-
ing their interests or leaving the controversy in
such a condition that its final determination may
be wholly inconsistent with equity and good con-
science. Hicklin v. Marco, 6 C.C.A.10, 56 F. 552,
citing Shields v. Barrow, 17 How. 139, 15 L.Ed. 158;
Ribon v. Railroad Co., 16 Wall. 450, 21 L.Ed. 367;
Williams v. Bankhead, 19 Wall. 571, 22 L.Ed. 184;
Kendig v. Dean, 97 U.S. 425, 24 L.Ed. 1061; Bar-
more v. Darragh, Tex.Civ.App., 227 S.W. 522, 523;
Jones v Bryant, 204 Ill.App. 609; Sexton v. Suther-
land, 37 N.D. 500, 164 N.W. 278, 281; Hughes v.
Yates, 195 Ind. 182, 144 N.E. 863, 864; Hyams v.
Old Dominion Co., 113 Me. 337, 93 A. 899; Tupelo
Townsite Co. v. Cook, 52 Okl. 703, 153 P. 164, 167;
Shedd v. American Maize Products Co., 60 Ind.
App. 146, 108 N.E. 610, 621.
PARTIES AND PRIVIES. Parties to a deed or
contract are those with whom the deed or con-
tract is actually made or entered into. By the
term "privies," as applied to contracts, is fre-
quently meant those between whom the contract
is mutually binding, although not literally parties
to such contract. Thus, in the case of a lease, the
lessor and lessee are both parties and privies, the
contract being literally made between the two, and
also being mutually binding; but, if the lessee as-
sign his interest to a third party, then a privity
arises between the assignee and the original les-
sor, although such assignee is not literally a party
to the original lease. Brown.
PARTIES IN INTEREST. Under General Order
6 (11 U.S.C.A. § 53) respecting transfer of bank-
ruptcy proceedings for the greatest convenience
of "parties in interest," the term "parties in in-
terest" includes not only general creditors, but
prior and secured creditors as well, and also the
bankrupt and every other party, whose pecuniary
interest is affected by the proceedings. In re De-
vonian Mineral Spring Co, D.C.Ohio, 272 F. 527,
532.
PARTITIO. Lat. In the civil law. Partition; di-
vision. This word did not always signify dimi-
dium, a dividing into halves. Dig. 50, 16, 164, 1.
PARTITIO LEGATA. A testamentary partition.
This took place where the testator, in his will,
directed the heir to divide the inheritance and
deliver a designated portion thereof to a named
legatee. See Mackeld. Rom. Law, §§ 781, 785.
rARTITION. The dividing of lands held by joint
tenants, coparceners, or tenants in common, into
distinct portions, so that they may hold them in
severalty. And, in a less technical sense, any di-
vision of real or personal property between co-
owners or co-proprietors. Meacham v. Meacham,
91 Tenn. 532, 19 S.W. 757; Hudgins v. Sansom,
72 Tex. 229, 10 S.W. 104; Weiser v. Weiser, 5
Watts, Pa., 279, 30 Am.Dec. 313; Thomason v.
Thompson, 123 Okl. 218, 253 P. 99, 102; Gillespie
v. Jackson, 153 Tenn. 150, 281 S.W. 929, 932.
Partition does not create or convey a new or additional
title or interest but merely severs the unity of possession.
Noble v. Beach, 21 CaL2d 91, 130 P.2d 426, 430. Cleveland
v. Milner, 141 Tex. 120, 170 S.W.2d 472, 475.
Owelty of partition. See Owelty.
Partition, deed of. In conveyancing. A species
of primary or original conveyance between two or
more joint tenants, coparceners, or tenants in com-
mon, by which they divide the lands so held among
them in severalty, each taking a distinct part. 2
Bl.Comm. 323, 324.
Partition of a Succession. The partition of a
succession is the division of the effects of which
the succession is composed, among all the co-heirs,
according to their respective rights. Partition is
voluntary or judicial. It is voluntary when it is
made among all the co-heirs present and of age,
and by their mutual consent. It is judicial when
it is made by the authority of the court, and ac-
cording to the formalities prescribed by law.
Every partition is either definitive or provisional.
Definitive partition is that which is made in a per-
manent and irrevocable manner. Provisional par-
tition is that which is made provisionally, either of
certain things before the rest can be divided, or
even of everything that is to be divided, when the
parties are not in a situation to make an irrevoca-
ble partition. Civ. Code La. art. 1293, et seq.
PARTNER. A member of copartnership or firm;
one who has united with others to form a partner-
ship in business. See Partnership.
Parties intending to do a thing which in law constitutes
partnership are "partners," whether their purpose was lo
create or avoid relation. Pearl Bowling & Co. v. Hensley
& Hensley, 259 Ky. 651, 83 S.W.2d 31, 32.
Dormant Partners
Those whose names are not known or do not
appear as partners, but who nevertheless are si-
lent partners, and partake of the profits, and
thereby become partners, either absolutely to all
intents and purposes, or at all events in respect to
third parties. Dormant partners, in strictness of
language, mean those who are merely passive in
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the firm, whether known or unknown, in contra-
distinction to those who are active and conduct
the business of the firm, as principals. Story,
Partn. § 80; Rowland v. Estes, 190 Pa. 111, 42 A.
528; National Bank of Salem v. Thomas, 47 N.Y.
15; Metcalf v. Officer, C.C.Iowa, 2 F. 640; Pooley
v. Driver, 5 Ch.Div. 458.
Liquidating Partner
The partner who, upon the dissolution or insol-
vency of the firm, is appointed to settle its ac-
counts, collect assets, adjust claims, and pay debts.
Nominal Partner
One whose name appears in connection with
the business as a member of the firm, but who
has no real interest in it.
Ostensible Partner
One whose name appears to the world as such,
or who is held out to all persons having dealings
with the firm in the character of a partner,
whether or not he has any real interest in the
firm. Civ.Code Ga.1910, § 3157.
Quasi Partners
Partners of lands, goods, or chattels who are
not actual partners are sometimes so called. Poth.
de Societe, App. no. 184.
Secret Partner
A dormant partner; one whose connection with
the firm is really or professedly concealed from
the world. In re Victor, D.C.Ga., 246 F. 727, 731.
Silent Partner, Sleeping Partner
Popular names for dormant partners or special
partners.
Solvent Partner
This term does not mean one who has assets
sufficient to pay his debts, but one who is not in
bankruptcy, so that his property is open to joint
creditors' appropriation by legal action and not
subject to distribution in bankruptcy proceedings.
Robinson v. Security Co., 87 Conn. 268, 87 A. 879,
881, Ann.Cas.1915C, 1170.
Special Partner
A member of a limited partnership, who fur.
nishes certain funds to the common stock, and
whose liability extends no further than the fund
furnished. A partner whose responsibility is re-
stricted to the amount of his investment. 3 Kent,
Comm. 34.
Surviving Partner
The partner who, on the dissolution of the firm
by the death of his copartner, occupies the position
of a trustee to settle up its affairs.
PARTNERSHIP. A voluntary contract between
two or more competent persons to place their
money, effects, labor, and skill, or some or all of
them, in lawful commerce or business, with the
understanding that there shall be a proportional
sharing of the profits and losses between them.
Story, Partn. § 2; Colly. Partn. § 2; 3 Kent,
Comm. 23. Preston v. State Industrial Accident
Commission, 174 Or. 553, 149 P.2d 957, 961, 962.
An association of two or more persons to carry
on as co-owners a business for profit. Uniform
Partnership Act, § 6(1). Schleicker v. Krier, 218
Wis. 376, 261 N.W. 413. A synallagmatic and com-
mutative contract made between two or more per-
sons for the mutual participation in the profits
which may accrue from property, credit, skill, or
industry, furnished in determined proportions by
the parties. Civ. Code La. art. 2801.
Partnership is where two or more persons agree to carry
on any business or adventure together, upon the terms of
mutual participation in its profits and losses. Mozley &
Whitley. And see Macomber v. Parker, 13 Pick., Mass.,
181; Bucknam v. Barnum, 15 Conn. 71; Farmers' Ins. Co.
v. Ross, 29 Ohio St. 431; In re Gibb's Estate, 157 Pa. 59,
27 A. 383, 22 L.R.A. 276; Wild v. Davenport, 48 N.J.L. 129,
7 A. 295, 57 Am.Rep. 552; Morse v. Pacific Ry. Co., 191 Ill.
356, 61 N.E. 104. It is in effect a contract of mutual agen-
cy, each partner acting as a principal in his own behalf
and as agent for his copartners, and general rules of law
applicable to agents apply with equal force in determining
rights and liabilities of partners. Lindley v. Seward, Ind.
App., 5 N.E.2d 998, 1006.
Commercial partnership. Trading partnership
(q. v.).
General partnership. A partnership in which
the parties carry on all their trade and business,
whatever it may be, for the joint benefit and prof-
it of all the parties concerned, whether the capi-
tal stock be limited or not, or the contributions
thereto be equal or unequal. Story, Partn. § 74;
Bigelow v. Elliot, 3 Fed.Cas. 351; Eldridge v.
Troost, 3 Abb.Prac., N.S. (N.Y.) 23.
Limited partnership. A partnership consisting
of one or more general partners, jointly and sev-
erally responsible as ordinary partners, and by
whom the business is conducted, and one or more
special partners, contributing in cash payments a
specific sum as capital to the common stock, and
who are not liable for the debts of the partnership
beyond the fund so contributed. 1 Rev.St.N.Y. 764;
Moorhead v. Seymour (City Ct. N.Y.) 77 N.Y.S.
1054; Taylor v. Webster, 39 N.J.Law, 104.
Mining partnership. See that title.
Particular partnership. One existing where the
parties have united to share the benefits of a
single individual transaction or enterprise. Spen-
cer v. Jones, Tex.Civ.App., 47 S.W. 665.
Partnership assets. Property of any kind be-
longing to the firm as such (not the separate
property of the individual partners) and available
to the recourse of the creditors of the firm in the
first instance.
Partnership at will. One designed to continue
for no fixed period of time, but only during the
pleasure of the parties, and which may be dis-
solved by any partner without previous notice.
Partnership debt. One due from the partnership
or firm as such and not (primarily) from one of
the individual partners.
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Partnership in commendam. A partnership
formed by a contract by which one person or part-
nership agrees to furnish another person or part-
nership a certain amount, either in property or
money, to be employed by the person or partner-
ship to whom it is furnished, in his or their own
name or firm, on condition of receiving a share
in the profits, in the proportion determined by the
contract, and of being liable to losses and expens-
es to the amount furnished and no more. Civ.
Code La. art. 2839.
Secret partnership. One where the existence of
certain persons as partners is not avowed to the
public by any of the partners. Deering v. Flan-
ders, 49 N.H. 225.
Special partnership. At common law. One
formed for the prosecution of a special branch of
business, as distinguished from the general busi-
ness of the parties, or for one particular venture
or subject. Bigelow v. Elliot, 3 Fed.Cas. 351. A
joint adventure. McDaniel v. State Fair of Texas,
Tex.Civ.App., 286 S.W. 513, 517. Under statutes.
A limited partnership (q. v.).
Subpartnership. One formed where one partner
in a firm makes a stranger a partner with him in
his share of the profits of that firm.
Trading partnership. See that title.
Universal partnership. One in which the part-
ners jointly agree to contribute to the common
fund of the partnership the whole of their prop-
erty, of whatever character, and future, as well as
present. Poth. Societe, 29; Civ. Code La. art. 2829.
PARTURITION. The act of giving birth to a
child.
PARTUS. Lat. Child; offspring; the child just
before it is born, or immediately after its birth.
PARTUS EX .LEGITIMO THORO NON CERTIUS
NOSCIT MATREM QUAM GENITOREM SUUM.
Fortes. 42. The offspring of a legitimate bed
knows not his mother more certainly than his
father.
PARTUS SEQUITUR VENTREM. The offspring
follows the mother; .the brood of an animal be-
longs to the owner of the dam; the offspring of
a slave belongs to the owner of the mother, or
follow the condition of the mother. A maxim of
the civil law, which has been adopted in the law
of England in regard to animals, though never
allowed in the case of human beings. 2 Bl.Comm.
390, 94; Fortes. 42.
PARTY, n. A person concerned or having or tak-
ing part in any affair, matter, transaction, or pro-
ceeding, considered individually. See Parties.
"Party" is a technical word, and has a precise meaning
in legal parlance. By it is understood he or they by or
against whom a suit is brought, whether in law or equity;
the party plaintiff or defendant, whether composed of one
or more individuals, and whether natural or legal persons,
(they are parties in the writ, and parties on the record ; )
and all others who may be affected by the suit, indirectly
or consequentially, are persons interested, but not parties.
Merchants' Bank v. Cook, 4 Pick. 405.
"Party" is not restricted to strict meaning of plaintiff or
defendant in a lawsuit, being defined as one concerned in
or privy to a matter as in the relation of accessory or con-
fidant, and again a partial person, one who takes sides.
State v. Orr, 53 Idaho 452, 24 P.2d 679.
Party aggrieved. Under statutes permitting
any party aggrieved to appeal, one whose right
has been directly and injuriously affected by ac-
tion of court. Freeman v. Thompson, 216 N.C.
484, 5 S.E.2d 434, 436. Singer v. Allied Factors,
216 Minn. 443, 13 N.W.2d 378, 380.
Party and party. This phrase signifies the con-
tending parties in an action;  e., the plaintiff and
defendant, as distinguished from the attorney and
his client. It is used in connection with the sub-
ject of costs, which are differently taxed between
party and party and between attorney and client.
Brown.
Party injured. As used in divorce statute giv-
ing right of action only to party injured means
party wronged by action of the other. Byers v.
Byers, 223 N.C. 85, 25 S.E.2d 466, 469.
Party to be charged. A phrase used in the stat-
ute of frauds, meaning the party against whom
the contract is sought to be enforced. Dominion
Oil Co. v. Pou, Tex.Civ.App., 253 S.W. 317, 320;
Kingfisher Mill & Elevator Co. v. Westbrook, 79
Okl. 188, 192 P. 209, 212. The party to be charged
in the action—that is, the defendant. Jones v.
School Dist. No. 48, 137 Ark. 414, 208 S.W. 798, 799;
Graham v. Henderson Elevator Co., 60 Ind.App.
697, 111 N.E. 332, 335; Also, the vendor. Henry
v. Reeser, 153 Ky. 8, 154 S.W. 371, 373; Kaiser v.
Jones, 157 Ky. 607, 163 S.W. 741, 742; The owner
of the realty rather than the party attempted to
be charged or held liable in an action based on
the memorandum. Lusky v. Keiser, 128 Tenn. 705,
164 S.W. 777, 778, L.R.A.1915C, 400.
Real party. In statutes requiring suits to be
brought in the name of the "real party in inter-
est," this term means the person who is actually
and substantially interested in the subject-matter,
as distinguished from one who has only a nomin-
al, formal, or technical interest in it or connection
with it. Hoagland v. Van Etten, 22 Neb. 681, 35
N.W. 870; Gruber v. Baker, 20 Nev. 453, 23 P. 858,
9 L.R.A. 302; Chew v. Brumagen, 13 Wall. 504, 20
L.Ed. 663. Gay v. Jackson County Board of Edu-
cation, 205 Ky. 277, 265 S.W. 772, 773; Taylor v.
Hurst, 186 Ky. 71, 216 S.W. 95, 96; Rothwell v.
Knight, 37 Wyo. 11, 258 P. 576, 582.
Third parties. A term used to include all per-
sons who are not parties to the contract, agree-
ment, or instrument of writing by which their
interest in the thing conveyed is sought to be af-
fected. Morrison v. Trudeau (La.) 1 Mart., N.S.,
384. But it is difficult to give a very definite idea
of third persons; for sometimes those who are not
parties to the contract, but who represent the
rights of the original parties, as executors, are not
to be considered third persons. 1 Bouvier, Inst. n.
1335. In statutes the words may have special
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PASS
meanings, and are often used to refer to creditors.
Flemming v. Drake, 163 Ga. 872, 137 S.E. 268, 270;
For other uses, see Behr v. Soth, 170 Minn. 278, 212
N.W. 461, 463; In re Thomas, D.C.N.Y., 283 F. 676;
Cartwright v. Ennis, 215 Ky. 3, 284 S.W. 87; Oak-
dale Bank & Trust Co. v. Young & Leggett, 2 La.
App. 586, 589; Bogdon v. Fort, 75 Colo. 231, 225 P.
247, 248; Churchill v. Stephens, 91 N.J.Law, 195,
102 A. 657, 658.
PARTY, adj. Relating or belonging to, or com-
posed of, two or more parts or portions, or two
or more persons or classes of persons.
Party jury. A jury de medietate linguce; (which
title see.)
Party structure. A structure separating build-
ings, stories, or rooms which belong to different
owners, or which are approached by distinct stair-
cases or separate entrances from without, whether
the same be a partition, arch, floor, or other struc-
ture. (St. 18 & 19 Viet. c. 122, § 3.) Mozley &
Whiteley.
Party-wall. A wall built partly on the land of
one owner, and partly on the land of another, for
the common benefit of both in supporting timbers
used in the construction of contiguous buildings.
Brown v. Werner, 40 Md. 19. In the primary and
most ordinary meaning of the term, a party-wall
is (1) a wall of which the two adjoining owners
are tenants in common. But it may also mean
(2) a wall divided longitudinally into two strips,
one belonging to each of the neighboring owners ;
(3) a wall which belongs entirely to one of the
adjoining owners, but is subject to an easement
or right in the other to have it maintained as a
dividing wall between the two tenements, (the
term is so used in some of the English building
acts;) or (4) a wall divided longitudinally into
two moieties, each moiety being subject to a cross-
easement in favor of the owner of the other moie-
ty. Sweet. Gates v. Friedman, 83 W.Va. 710, 98 S.
E. 892, 893; 'Carroll Blake Const. Co. v. Boyle, 140
Tenn. 166, 203 S.W. 945, 946; Smoot v. Heyl, 33 S.
Ct. 336, 337, 227 U.S. 518, 57 L.Ed. 621; Feder v.
Solomon, 3 N.J.Misc. 1189, 131 A. 290; Freedman
v. Kensico Realty Co., 99 N.J.Eq. 115, 131 A. 916,
917.
PARUM. Lat. Little; but little.
PARUM CAVET NATURA. Nature takes little
heed. Vandenheuvel v. United Ins. Co., 2 Johns.
Cas. (N.Y.) 127, 166.
PARUM CAVISSE VIDETUR. Lat. In Roman
law. He seems to have taken too little care; he
seems to have been incautious, or not sufficiently
upon his guard. A form of expression used by
the judge or magistrate in pronouncing sentence
of death upon a criminal. Festus, 325; Tayl. Civil
Law, 81; 4 Bl.Comm. 362, note.
PARUM DIFFERUNT QUIE RE CONCORDANT.
2 Bulst. 86. Things which agree in substance
differ but little.
PARUM EST LATAM ESSE SENTENTIAM NISI
MANDETUR EXECUTIONI. It is little Cor to
little purpose] that judgment be given unless it be
committed to execution. Co. Litt. 289.
PARUM PROFICIT SCIRE QUID FIERI DEBET,
SI NON COGNOSCAS QUOMODO SIT FAC-
TURUM. 2 Inst. 503. It profits little to know
what ought to be done, if you do not know how
it is to be done.
PARVA SERJEANTIA. Petty serjeanty (q. v.).
PARVISE. An afternoon's exercise or moot for
the instruction of young students, bearing the
same name originally with the Parvisice (little-
go) of Oxford. Wharton.
PARVUM CAPE. See Petit Cape.
PAS. In French. Precedence; right of going
foremost.
PASCH. The passover; Easter.
PASCHA. In old English law and practice. Eas-
ter. De termino Paschce, of the term of Easter.
Bract. fol. 246b.
PASCHA CLAU g UM. The octave of Easter, or
Low-Sunday, which closes that solemnity.
PASCHA FLORIDUM. The Sunday before Easter,
called "Palm-Sunday."
PASCHA RENTS. In English ecclesiastical law.
Yearly tributes paid by the clergy to the bishop or
archdeacon at their Easter visitations.
PASCUA. A particular meadow or pasture land
set apart to feed cattle.
PASCUA SILVA. In the civil law. A feeding
wood; a wood devoted to the feeding of cattle.
Dig. 50, 16, 30, 5.
PASCUAGE. The grazing or pasturage of cattle.
PASS, v. In practice. To utter or pronounce; as
when the court passes sentence upon a prisoner.
Also to proceed; to be rendered or given; as
when judgment is said to pass for the plaintiff in
a suit.
In legislative parlance, a bill or resolution is
said to pass when it is agreed to or enacted by
the house, or when the body has sanctioned its
adoption by the requisite majority of votes; in
the same circumstances, the body is said to pass
the bill or motion.
When an auditor appointed to examine into any
accounts certifies to their correctness, he is said to
pass them; i. e., they pass through the examina-
tion without being detained or sent back for in-
accuracy or imperfection. Brown.
The term also means to examine into anythjng
and then authoritatively determine the disputed
questions which it involves. In this sense a jury
is said to pass upon the rights or issues in litiga-
tion before them.
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In the language of conveyancing, the term
means to move from one person to another; to be
transferred or conveyed from one owner to an-
other; as in the phrase "the word 'heirs' will pass
the fee."
To publish; utter; transfer; circulate; impose
fraudulently. This is the meaning of the word
when the offense of passing counterfeit money or
a forged paper is spoken of.
"Pass," "utter," "publish," and "sell" are in
some respects convertible terms, and, in a given
case, "pass" may include utter, publish, and sell.
The words "uttering" and "passing," used of notes,
do not necessarily import that they are transferred
as genuine. The words include any delivery of a
note to another for value, with intent that it shall
be put into circulation as money. U. S. v. Nelson,
1 Abb. 135, Fed. Cas. No. 15,861; Smith v. State,
13 Ga.App. 663, 79 S.E. 764, 766.
Passing a paper is putting it off in payment or exchange.
Uttering it is a declaration that it is good, with an inten-
tion to pass, or an offer to pass it.
PASS, n. Permission to pass; a license to go or
come; a certificate, emanating from authority,
wherein it is declared that a designated person is
permitted to go beyond certain boundaries which,
without such authority, he could not lawfully pass.
Also a ticket issued by a railroad or other trans-
portation company, authorizing a designated per-
son to travel free on its lines, between certain
points or for a limited time.
PASSAGE. A way over water; an easement giv-
ing the right to pass over a piece of private water.
Travel by sea; a voyage over water; the carriage
of passengers by water; money paid for such
carriage.
Enactment; the act of carrying a bill or resolu-
tion through a legislative or deliberative body
in accordance with the prescribed forms and re-
quisites; the emergence of the bill in the form of
a law, or the motion in the form of a resolution.
Passage may mean when bill has passed both
houses of legislature or when it is signed by Gov-
ernor. People v. Coffin, 279 Ill. 401, 117 N.E. 85,
87; Board of Education of School Dist. No. 41 v.
Morgan, 316 Ill. 143, 147 N.E. 34; Jemison v. Town
of Ft. Deposit, 21 Ala.App. 331, 108 So. 396.
PASSAGE COURT. An ancient court of record
in Liverpool, once called the "mayor's court of
pays sage," but now usually called the "court of
the passage of the borough of Liverpool." This
court was formerly held before the mayor and two
bailiffs of the borough, and had jurisdiction in ac-
tions where the amount in question exceeded forty
shillings. Mozley & Whitley.
PASSAGE MONEY. The fare of a passenger by
sea; money paid for the transportation of persons
in a ship or vessel; as distinguished from
"freight" or "freight-money," which is paid for the
transportation of goods and merchandise.
PASSAGIO. An ancient writ addressed to the
keepers of the ports to permit a man who had
the king's leave to pass over sea. Reg. Orig. 193.
PASSAGIUM REGIS. A voyage or expedition to
the Holy Land made by the kings of England in
person. Cowell.
PASSATOR. He who has the interest or com-
mand of the passage of a river; or a lord to whom
a duty is paid for passage. Wharton.
PASS-BOOK. A book in which a bank or banker
enters the deposits made by a customer, and which
is retained by the latter. Also a book in which
a merchant enters the items of sales on credit to
a customer, and which the latter carries ror keeps
with him..
PASSENGER. A person whom a common carrier
has contracted to carry from one place to another,
and has, in the course of the performance of that
contract, received under his care either upon the
means of conveyance, or at the point of departure
of that means of conveyance. Bricker v. Philadel-
phia & R. R. Co., 132 Pa. 1, 18 A. 983, 19 Am.St.
Rep. 585; Schepers v. Union Depot R. Co., 126 Mo.
665, 29 S.W. 712; Pennsylvania R. Co. v. Price, 96
Pa. 256; The Main v. Williams, 14 S.Ct. 486, 152
U.S. 122, 38 L.Ed. 381; Horne v. Southern Ry. Co.,
186 S.C. 525, 197 S.E. 31, 35, 116 A.L.R. 745.
The above definition is not exhaustive. For one who
goes to a railroad station to take the next train in a rea-
sonable time before the time for the arrival of the train is
a passenger, though he has not purchased a ticket, and the
duties imposed by the relation of carrier and passenger are
obligatory on the railroad. Clark v. Bland, 181 N.C. 110,
106 S.E. 491, 492; Garricott v. New York State Rys., 223
N.Y. 9, 119 N.E. 94, L.R.A.1918B, 929; Dillahunty v. Chi-
cago, R. I. & P. Ry. Co., 119 Ark. 392, 178 S.W. 420, 422 ;
Kidwell v. Chesapeake & 0. Ry. Co., 71 W.Va. 664, 77 S.E.
285, 43 L.R.A.,N.S., 999; Youngerman v. New York, N. H.
& H. R. Co., 223 Mass. 29, 111 N.E. 607, 608; Mobile Light
& R. Co. v. Hughes, 190 Ala. 216, 67 So. 278, 281. And a
child about nine months old, who accompanies her mother;
who is a passenger, is a passenger, though riding free.
Southern Ry. Co. v. Herron, 12 Ala.App. 415, 68 So. 551,
552. Railway mail clerks, required by 39 U.S.C.A. § 523, to
be carried by railroad without compensation, held to be
"passengers." Pittsburgh, C., C. & St. L. R. Co. v. Jones,
82 Ind.App. 569, 146 N.E. 864; Carter v. Washington & 0.
D. Ry., 122 Va. 458, 95 S.E. 464, 465; Missouri, K. & T.
Ry. Co. v. Edmonds, 73 Okl. 2, 174 P. 1052, 1054; Balti-
more & 0. R. Co. v. Davis, 152 Md. 427, 137 A. 30, 33.
When a person ceases to be a passenger depends upon the
particular facts of each case. Louisville Ry. Co. v. Ken-
nedy, 162 Ky. 560, 172 S.W. 970, 971, Ann.Cas.1916E, 996;
Will v. Milwaukee Electric Ry. & Light Co., 169 Wis. 38,
171 N.W. 658, 659; Lackey v. Missouri & K. I. Ry. Co..
305 Mo. 260, 264 S. W. 807, 808; Gillis v. Duluth Casualty
Ass'n, 133 Minn. 238, 158 N.W. 252, 253; Moflit v. Grand
Rapids Ry. Co., 228 Mich. 349, 200 N.W. 274, 275.
One carried for hire, or reward, as distinguished from a
"guest" who is one carried gratuitously, that is, without
any financial return except such slight benefit as is custom-
ary as part of the ordinary courtesy of the road. Duncan
v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140, 142.
PASSENGER TRAIN. Any train used to carry
members of the general public for hire. Nadler v.
Illinois Commercial Men's Ass'n, 188 Ill. App. 459,
460; Chicago, B. & Q. R. Co. v. Railroad Commis-
sion of Wisconsin, 152 Wis. 654, 140 N.W. 296, 299.
A passenger train is one which carries passengers, their
baggage, mail and express only, while a freight train is
one which carries freight alone, having a caboose attached
for the use of the crew. Arizona Eastern R. Co. v. State,
29 Ariz. 446, 242 P. 870, 871.
PASSIAGIARIUS. A ferryman. Jacob.
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PASSLM (Lat). Everywhere. Often used to in-
dicate a very general reference to a book or legal
authority.
PASSING-TICKET. In English law. A kind of
permit, being a note or check which the toll-clerks
on some canals give to the boatmen, specifying
the lading for which they have paid toll. Whar-
ton.
PASSIO. Pannage; a liberty for hogs to run in
forests or woods to feed upon mast. Mon. Angl.
1, 682.
PASSION. In the definition of manslaughter as
homicide committed without premeditation but
under the influence of sudden "passion," this term
means any of the emotions of the mind known as
rage, anger, hatred, furious resentment, or terror,
rendering the mind incapable of cool reflection.
Steil v. State, Tex.Cr.App., 58 S.W. 75; State v.
Johnson, 23 N.C. 362, 35 Am.Dec. 742; Winton v.
State, 151 Tenn. 177, 268 S.W. 633, 637; Collins v.
State, 88 Fla. 578, 102 So. 880, 882. Commonwealth
v. Flax, 331 Pa. 145, 200 A. 632, 636.
PASSIVE. As used in law, this term means inac-
tive; permissive; consisting in endurance or sub-
mission, rather than action; and in some connec-
tions it carries the implication of being subjected
to a burden or charge.
As to passive "Debt," "Negligence," "Title,"
'Trust," and "Use," see those titles.
PASSPORT.
Maritime. A document issued to a neutral mer-
chant vessel, by her own government, during the
progress of a war, to be carried on the voyage,
to evidence her nationality and protect her against
the cruisers of the belligerent powers. This paper
is otherwise called a "pass," "sea-pass," "sea-let-
ter," "sea-brief." It usually contains the captain's
or master's name and residence, the name, prop-
erty, description, tonnage, and destination of the
ship, the nature and quantity of the cargo, the
place from whence it comes, and its destination,
with such other matters as the practice of the
place requires.
In international law. A license or safe-con-
duct, issued during the progress of a war, au-
thorizing a person to remove himself or his effects
from the territory of one of the belligerent na-
tions to another country, or to travel from coun-
try to country without arrest or detention on ac-
count of the war.
In American law. A special instrument intend-
ed for the protection of American vessels against
the Barbary powers, usually called a "Mediterran-
ean pass." Jac. Sea Laws, 69. Also a document
addressed to foreign powers, which certifies that
the person therein described is a citizen of the
United States and which requests for him while
abroad permission to come and go as well as law-
ful aid and protection. United States v. Browder,
C.C.A.N.Y., 113 F.2d 97, 98.
Black's Law Dictionary Revised 4th Ed.-81
In Modern law. A warrant of protection and
authority to travel, granted by the competent offi-
cer to persons moving from place to place.
Brande.
PASTO. In Spanish law. Feeding; pasture; a
right of pasture. White, New Recop. b. 2, tit. 1,
c. 6, § 4.
PASTOR. Lat. A shepherd. Applied to a minis-
ter of the Christian religion, who has charge of a
congregation or parish, hence called his "flock."
First Presbyterian Church v. Myers, 5 Okl. 809, 50
P. 70, 38 L.R.A. 687; Griswold v. Quinn, 97 Kan.
611, 156 P. 761, 762; Dupont v. Pelletier, 120 Me.
114, 113 A. 11, 13.
PASTURE. Ground for the grazing of domestic
animals, and includes also the grass growing upon
the ground. State v. Cornett, 199 N.C. 634, 155 S.
E. 451, 452. Also the right of pasture. Co. Litt.
4b.
PASTUS. In feudal law. The procuration or pro-
vision which tenants were bound to make for their
lords at certain times, or as often as they made
a progress to their lands. It was often converted
into money.
PATEAT UNIVERSIS PER PRIESENTES. Know
all men by these presents. Words with which
letters of attorney anciently commenced. Reg.
Orig. 305b, 306.
PATENT, adj. Open; manifest; evident; un-
sealed. Used in this sense in such phrases as
"patent ambiguity," "patent writ," "letters pat-
ent."
Letters patent. Open letters, as distinguished
from letters close. An instrument proceeding
from the government, and conveying a right, au-
thority, or grant to an individual, as a patent for
a tract of land, or for the exclusive right to make
and sell a new invention. Familiarly termed a
"patent." International Tooth Crown Co. v. Hanks
Dental Ass'n, C.C.N.Y., 111 F. 918; Ulman v.
Thompson, 57 Ind.App. 126, 106 N.E. 611, 613.
Patent ambiguity. See Ambiguity.
Patent defect. In sales of personal property,
one which is plainly visible or which can be dis-
covered by such an inspection as would be made in
the exercise of ordinary care and prudence. Law-
son v. Baer, 52 N.C. 461.
Patent writ. In old practice. An open writ;
one not closed or sealed up. See Close Writs.
PATENT, n. A grant of some privilege, property,
or authority, made by the government or sover-
eign of a country to one or more individuals. Phil.
Pat. 1.
In American law. The instrument by which a
state or government grants public lands to an in-
dividual. Bovey-Shute Lumber Co. v. Erickson, 41
N.D. 365, 170 N.W. 628, 630; McCarty v. Helbling,
73 Or. 356, 144 P. 499, 503. A grant made by the
government to an inventor, conveying and secur-
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PATENT
ing to hitn the exclusive right to make, use and
sell his invention' for a term of years. Atlas Glass
Co. v. Simonds Mfg. Co., 42 C.C.A. 554, 102 F. 647;
Societe Anonyme v. General Electric Co., C.C.N.Y.,
97 F. 605; Pegram v. American Alkali Co., C.C.
Pa., 122 F. 1000; Luten v. Kansas City Bridge Co.,
C.C.A.Mo., 285 F. 840, 844; American Foundry and
Mfg. Co. v. Josam Mfg. Co., C.C.A.Mo., 79 F.2d 116,
117.
In English law. A grant by the sovereign to a
subject or subjects, under the great seal, confer-
ring some authority, title, franchise, or property;
termed "letters patent" from being delivered open,
and not closed up from inspection.
General
Design patent. Granted for giving a new and
pleasing appearance to an article of manufacture
whereby its sale is enhanced. Viehmann v. D. F.
H. Novelty Furniture Co., D.C.N.Y., 27 F.Supp. 566,
567; 35 U.S.C.A. § 171 et seq.
Land patent. A muniment of title issued by a
government or state for the conveyance of some
portion of the public domain.
Patent bill office. The attorney general's patent
bill office is the office in which were formerly pre-
pared the drafts of all letters patent issued in
England, other than those for inventions. The
draft patent was called a "bill," and the officer
who prepared it was called the "clerk of the pat-
ents to the queen's attorney and solicitor general."
Sweet.
Patent of precedence. Letters patent granted,
in England, to such barristers as the crown thinks
fit to honor with that mark of distinction, where-
by they are entitled to such rank and preaudience
as are assigned in their respective patents, which
is sometimes next after the attorney general, but
more usually next after her majesty's counsel then
being. These rank promiscuously with the king's
(or queen's) counsel, but are not the sworn serv-
ants of the crown. 3 Bl.Comm. 28; 3 Steph.Comm.
274.
Patent-office. In the administrative system of
the United States, this is one of the bureaus of
the department of commerce. It has charge of
the issuing of patents to inventors and of such
business as is connected therewith.
Patent-right. A right secured by patent; usually
meaning a right to the exclusive manufacture
and sale of an invention or patented article. Avery
v. Wilson, C.C.N.C., 20 F. 856; Crown Cork & Seal
Co. v. State, 87 Md. 687, 40 A. 1074, 53 L.R.A. 417;
Corn. v. Central, etc., Tel. Co., 145 Pa. 121, 22 A.
841, 27 Am.St.Rep. 677.
Patent-right dealer. Any one whose business it
is to sell, or offer for sale, patent-rights. 14 St.
at Large, 118.
Patent rolls. The official records of royal char-
ters and grants; covering from the reign of King
John to recent times. They contain grants of of-
fices and lands, restitutions of temporalities to
ecclesiastical persons, confirmations of grants
made to bodies corporate, patents of creation of
peers, and licenses of all kinds. Hubb. Succ. 617;
32 Phila. Law Lib. 429.
Patent suit. A suit with issues affecting the
legality or infringement of a patent. Rubens v.
Bowers, C.C.A.Cal., 136 F.2d 887, 889.
Pioneer patent. A patent for an invention cov-
ering a function never before performed, or a
wholly novel device, or one of such novelty and
importance as to mark a distinct step in the pro-
gress of the art, as distinguished from a mere
improvement or perfecting of what has gone be-
fore. Westinghouse v. Boyden Power-Brake Co.,
18 S.Ct. 707, 170 U.S. 537, 42 L.Ed. 1136; Yancey v.
Enright, C.C.A.La., 230 F. 641, 645; Spengler Core
Drilling Co. v. Spencer, D.C.Cal., 10 F.2d 579, 582.
Plant patent. Granted to person who invents
or discovers and asexually reproduces a distinct
and new variety of plant; word "plant" being used
in the popular sense. Kim Bros. v. Hagler, D.C.
Cal., 167 F.Supp. 665, 667; 35 U.S.C.A. § 161 et
seq.
Reissued patent. A patent securing rights of an
inventor more definitely in some particular where-
in the original patent was defective. Ingersoll v.
Holt, 104 F. 682, 683.
PATENTABLE. Suitable to be patented; entitled
by law to be protected by the issuance of a patent.
Heath Cycle Co. v. Hay, C.C.Ind., 67 F. 246; Maier
v. Bloom, C.C.N.J., 95 F. 166; Boyd v. Cherry, C.C.
Iowa, 50 F. 282; Providence Rubber Co. v. Good-
year, 9 Wall. 796, 19 L.Ed. 566. And to be "patent-
able," a device must embody some new idea or
principle not before known, and it must be a dis-
covery as distinguished from mere mechanical
skill or knowledge. Hobart Mfg. Co. v. Landers,
Frary & Clark, D.C.Conn., 26 F.Supp. 198, 202;
In re Herthel, Cust. & Pat.App., 104 F.2d 824, 826.
PATENTEE. He to whom a patent has been
granted. The term is usually applied to one who-
has obtained letters patent for a new invention.
PATER. Lat. A father; the father. In the civil
law, this word sometimes included avus, (grand-
father.) Dig. 50, 16, 201.
PATER PATRL zE. Father of the country. See
Parens
PATER IS EST QUEM NUPTLE REMON-
STRANT. The father is he whom the marriage
points out. 1 Bl.Comm. 446; Tate v. Penne, 7
Mart. (N. S. La.) 548, 553; Dig. 2, 4, 5; Broom,
Max. 516.
PATERFAMILIAS. The father of a family.
In Roman law. The head or master of a family.
This word is sometimes employed, in a wide
sense, as equivalent to sui juris. A person sui juris
is called "paterfamilias" even when under the age
of puberty. In the narrower and more common
use, a paterfamilias is any one invested with
potestas over any person. It is thus as applicable
to a grandfather as to a father. Hunter, Rom.
Law, 49.
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PATRON
PATERNA PATERNIS. Lat. Paternal estates to
paternal heirs. A rule of the French law, signify-
ing that such portion of a decedent's estate as
came to him from his father must descend to his
heirs on the father's side.
PATERNAL. That which belongs to the father
or comes from him.
PATERNAL LINE. A line of descent or rela-
tionship between two persons which is traced
through the father.
PATERNAL POWER. The authority lawfully ex-
ercised by parents over their children. This phrase
is also used to translate the Latin "patria potes-
tas," (q. v.).
PATERNAL PROPERTY. That which descends
or comes to one from his father, grandfa ther, or
other ascendant or collateral on the paternal side
of the house.
PATERNITY. The state or condition of a father;
the relationship of a father.
The Latin "paternitas" is used in the canon law
to denote a kind of spiritual relationship contract-
ed by baptism. Heinecc. Elem. lib. 1, tit. 10, § 161,
note.
PATHOLOGY. In medical jurisprudence. The
science or doctrine of diseases. That part of medi-
cine which explains the nature of diseases, their
causes, and their symptoms. Bacon v. U. S. Mut.
Ace. Ass'n, 123 N.Y. 304, 25 N.E. 399, 9 L.R.A. 617,
20 Am.St.Rep. 748; Williams v. Scudder, 102 Ohio
St. 305, 131 N.E. 481, 483.
PATIBULARY. Belonging to the gallows.
PATIBULATED. Hanged on a gibbet.
PATIBULUM. In old English law. A gallows or
gibbet. Fleta, lib. 2, c. 3, § 9.
PATIENS. Lat. One who suffers or permits; one
to whom an act is done; the passive party in a
transaction.
PATIENT. One who has been committed to the
asylum and has remained there for care and treat-
ment. Edwards v. West Texas Hospital, Tex.Civ.
App., 89 S.W.2d 801, 811.
PATRIA. Lat. The country, neighborhood, or
vicinage; the men of the neighborhood; a jury
of the vicinage. Synonymous, in this sense, with
"pais."
PATRIA LABORIBUS ET EXPENSIS NON DE—
BET FATIGARI. A jury ought not to be harassed
by labors and expenses. Jenk. Cent. 6.
PATRIA POTESTAS. Lat. In Roman law. Pa-
ternal authority; the paternal power. This term
denotes the aggregate of those peculiar powers
and rights which, by the civil law of Rome, be-
longed to the head of a family in respect to his
wife, children, (natural or adopted,) and any more
remote descendants who sprang from him through
males only. Anciently, it was of very extensive
reach, embracing even the power of life and
death, but was gradually curtailed, until finally
it amounted to little more tnan a right in the
paterfamilias to hold as his own any property or
acquisitions of one under his power. Mackeld.
Rom. Law, § 589.
PATRIA POTESTAS IN PIETATE DEBET, NON
IN ATROCITATE, CONSISTERE. Paternal
power should consist [or be exercised] in affec-
tion, not in atrocity.
PATRIMONY. Any kind of property. Such es-
tate as has descended in the same family; es-
tates which have descended or been devised in a
direct line from the father, and, by extension,
from the mother or other ancestor. It has been
held that the word is not necessarily restricted to
property inherited directly from the father. 5 Ir.
Ch.Rep. 525.
PATRIARCH. The chief bishop over several
countries or provinces, as an archbishop is of
several dioceses. Godb. 20.
PATRICIDE. One who has killed his father. As
to the punishment of that offense by the Roman
law, see Sandars' Just.Inst. (5th Ed.) 496.
PATRICIUS. In the civil law. A title of the high-
est honor, conferred on those who enjoyed the
chief place in the emperor's esteem.
PATRIMONIAL. Pertaining to a patrimony; in-
herited from ancestors, but strictly from the
direct male ancestors.
PATRIMONIUM. In civil law. That which Is
capable of being inherited. The private and ex-
clusive ownership or dominion of an individual.
Things capable of being possessed by a single per-
son to the exclusion of all others (or which are
actually so possessed) are said to be in patri-
monio; if not capable of being so possessed, (or
not actually so possessed,) they are said to be
extra patrimonium. See Gaius, bk. 2, § 1.
PATRINUS. In old ecclesiastical law. A god-
father. Spelman.
PATRITIUS. An honor conferred on men of the
first quality in the time of the English Saxon
kings.
PATROCINIUM. In Roman law. Patronage;
protection; defense. The business or duty of a
patron or advocate.
PATROLMAN. A policeman assigned to duty in
patrolling a certain beat or district; also the des-
ignation of a grade or rank in the organized police
force of large cities, ,a patrolman being generally
a private in the ranks, as distinguished from
roundsmen, sergeants, lieutenants, etc. See State
v. Walbridge, 153 Mo. 194, 54 S.W. 447.
PATRON. In ordinary usage one who protects,
countenances, or supports some person or thing;
one who habitually extends material assistance;
a regular customer; a protector or benefactor.
State v. Board of Trust of Vanderbilt University,
129 Tenn. 279, 164 S.W. 1151, 1170; Carroll v. Lee-
mon Special School Dist., 175 Ark. 274, 299 S.W.
11, 12.
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PATRON
In ecclesiastical law. He who has the right,
title, power, or privilege of presenting to an ec-
clesiastical benefice.
In Roman law. The former master of an eman-
cipated slave.
In French marine law. The captain or master
of a vessel.
PATRONAGE. In English ecclesiastical law.
The right of presentation to a church or ecclesias-
tical benefice; the same with advowson (q. v.).
2 Bl.Comm. 21. The right of appointing to office,
considered as a perquisite, or personal right;
not in the aspect of a public trust.
PATRONATUS. Lat.
In Roman law. The condition, relation, right,
or duty of a patron.
In ecclesiastical law. Patronage, (q. v.).
PATRONIZE. To act as a patron, extend patron-
age, countenance, encourage, favor. State v.
Board of Trust of Vanderbilt University, 129
Tenn. 279, 164 S.W. 1151, 1170.
PATRONUM FACIUNT DOS, ZEDIFICATIO,
FUNDUS. Dod. Adv. 7. Endowment, building,
and land make a patron.
PATRONUS (Lat.).
In Roman law. A modification of the Latin
word pater, father. A denomination applied by
Romulus to the first senators of Rome, and which
they always afterwards bore. A person who
stood in the relation of protector to another who
was called his "client." One who advised his
client in matters of law, and advocated his causes
in court. Gilb. Forum Rom. 25.
PATROON. The proprietors of certain manors
created in New York in colonial times were so
called.
PATRUELIS. Lat. In the civil law. A cousin-
german by the father's side; the son or daughter
of a father's brother. Wharton.
PATRUUS. Lat. An uncle by the father's side;
a father's brother.
PATRUUS MAGNUS. A grandfather's brother;
granduncle.
PATRUUS MAJOR. A great-grandfather's broth-
er.
PATRUUS MAXIMUS. A great-grandfather's fa-
ther's brother.
PAUPER. A person so poor that he must be
sup ported at public expense; also a suitor who, on
acc p unt of poverty, is allowed to sue or defend
without being chargeable with costs. In re Hof-
fen's Estate, 70 Wis. 522, 36 N.W. 407; Hutchings
v. Thompson, 10 Cush., Mass., 238; Charleston v.
Groveland, 15 Gray, Mass., 15; Lee County v.
Lackie, 30 Ark. 764; Allegheny County v. City
of Pittsburgh, 281 Pa. 300, 127 A. 72, 73. For
"Family," see that title.
Dispauper. To deprive one of the status of a
pauper and of any benefits incidental thereto:
particularly, to take away the right to sue in
forma pauperis because the person so suing, dur-
ing the progress of the suit, has acquired money
or property which would enable him to sustain
the costs of the action.
PAUPERIES. Lat. In Roman law. Damage or
injury done by an irrational animal, without ac-
tive fault on the part of the owner, but for which
the latter was bound to make compensation. Inst.
4, 9; Mackeld.Rom.Law, § 510.
PAVAGE. Money paid towards paving the
streets or highways.
PAVE. To cover with stone, brick, concrete, or
any other substantial matter, making a smooth
and level surface. A sidewalk is paved when it
is laid or flagged with flat stones, as well as when
paved with brick, as is frequently done. In re
Phillips, 60 N.Y. 22; Buell v. Ball, 20 Iowa 282;
Harrisburg v. Segelbaum, 151 Pa. 172, 24 A. 1070,
20 L.R.A. 834.
PAVING. Any substance on a street forming an
artificial roadway or wearing surface. Heath v.
Seattle Taxicab Co., 73 Wash. 177, 131 P. 843,
844.
PAWN, v. To deliver personal property to an-
other in pledge, or as security for a debt or sum
borrowed.
PAWN, n. A bailment of goods to a creditor,
as security for some debt or engagement; a
pledge. Story, Bailm. § 7; Coggs v. Bernard, 2
Ld.Raym. 913; Commercial Bank v. Flowers,
116 Ga. 219, 42 S.E. 474; Jacobs v. Grossman, 310
Ill. 247, 141 N.E. 714, 715.
Pawn, or pledge, is a bailment of goods by a debtor to
his creditor, to be kept till the debt is discharged. Whar-
ton. In common usage pawn means a pledge of chattels
as distinguished from pledges of choses in action, and in
more limited sense means a deposit of personal property
made to a pawnbroker as security for a loan; that sort of
bailment when goods or chattels are delivered to another
as security to him for money borrowed of him by the bail-
or. In re Rogers, D.C.W.Va., 20 F.Supp. 120, 126.
Also the specific chattel delivered to the credi-
tor as a pledge.
In the law of Louisiana, pawn Is known as one species
of the contract of pledge, the other being antichresis; but
the word "pawn" is sometimes used as synonymous with
"pledge," thus including both species. Civ.Code La. art.
3134.
PAWNBROKER. A person whose business Is to
lend money, usually in small sums, on security
of personal property deposited with him or left
in pawn. Schaul v. Charlotte, 118 N.C. 733, 24
S.E. 526; Chicago v. Hulbert, 118 Ill. 632, 8 N.E.
812, 59 Am.Rep. 400.
Any person engaged in the business of lending money on
deposit or pledges of personal property or other valuable
thing, other than securities or printed evidence of indebt-
edness, or in the business of purchasing personal property,
or choses in action, or other valuable thing, and selling
or agreeing to sell the same back to the seller at a price
other than the original price of purchase, or in the busi-
ness of purchasing personal property such as articles con-
taining gold, silver, platinum or other precious metals of
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jewels for the purpose of reducing or smelting them into
a different form and reselling the product. Gen. Code
Ohio, I 6338.
PAWNEE. The person receiving a pawn, or to
whom a pawn is made; the person to whom goods
are delivered by another in pledge.
PAWNOR. The person pawning goods or deliver-
ing goods to another in pledge.
PAX ECCLESI1E. Lat. In old English law.
The peace of the church. A particular privilege
attached to a church; sanctuary (q. v.). Crabb,
Eng. Law, 41; Cowell.
PAX REGIS. Lat. The peace of the king; that
is, the peace, good order, and security for life
and property which it is one of the objects of gov-
ernment to maintain, and which the king, as the
personification of the power of the state, is sup-
posed to guaranty to all persons within the pro-
tection of the law.
This name was also given, in ancient times, to
a certain privileged district or sanctuary. The
pax regis, or verge of the court, as it was after-
wards called, extended from the palace-gate to
the distance of three miles, three furlongs, three
acres, nine feet, nine palms, and nine barleycorns.
Crabb, Eng. Law, 41.
PAY, n. Compensation. Smith v. Jones, 102
Conn. 471, 129 A. 50, 51, 43 A.L.R. 952; Chris-
topherson v. Reeves, 44 S.D. 634, 184 N.W. 1015,
1017. A fixed and definite amount given by law to
persons in military service in consideration of and
as compensation for their personal services.
Sherburne v. U. S., 16 Ct.C1. 496.
PAY, v. To discharge a debt; to deliver to a
creditor the value of a debt, either in money or
in goods, for his acceptance. Beals v. Home Ins.
Co., 36 N.Y. 522. Carpenter v. Dummit, 221 Ky.
67, 297 S.W. 695, 700; Vollmer v. Automobile Fire
Ins. Co. of Hartford, Conn., 207 App.Div. 67, 202
N.Y.S. 374, 375.
The term, however, is sometimes limited to dis-
charging an indebtedness by the use of money.
Krahn v. Goodrich, 164 Wis. 600, 160 N.W. 1072,
1075. In re Bailey's Estate, 276 Pa. 147, 119 A.
907, 909.
PAYABLE. Capable of being paid; suitable to
be paid; admitting or demanding payment; justly
due; legally enforceable. In re Advisory Opinion
to the Governor, 74 Fla. 250, 77 So. 102, 103.
A sum of money is said to be payable when a person is
under an obligation to pay it. "Payable" may therefore
signify an obligation to pay at a future time, but, when
used without qualification, "payable" means that the debt
is payable at once, as opposed to "owing." Sweet. And
see First Nat. Bank v. Greenville Nat. Bank, 84 Tex. 40,
19 S.W. 334; Easton v. Hyde, 13 Minn. 91, Gil. 83.
PAYABLE AFTER SIGHT. Payable after accept-
ance of bill or protest for nonacceptance. Wag-
goner Banking Co. v. Gray County State Bank,
Tex.Civ.App., 165 S.W. 922, 925.
PAYABLE ON DEMAND. A bill payable on de-
mand is payable on its date or within a reasonable
time without grace. Waggoner Banking Co. v.
Gray County State Bank, Tex.Civ.App., 165 S.W.
922, 925.
At common law an instrument is payable on demand
where no time for payment is expressed, unless the circum-
stances show a different intention. Coleman v. Page's Es-
tate, 202 S.C. 486, 25 S.E.2d 559.
PAYEE. In mercantile law. The person in whose
favor a bill of exchange, promissory note, or check
is made or drawn; the person to whom Or to
whose order a bill, note, or check is made payable.
3 Kent, Comm. 75; Thomson v. Findlater Hard-
ware Co., Tex.Civ.App., 156 S.W. 301, 303.
PAYER, or PAYOR. One who pays, or who is to
make a payment; particularly the person who is
to make payment of a bill or note. Correlative
to "payee."
PAYING QUANTITIES. This phrase, as used in
oil and gas leases, when applied to the production
of oil, means such a quantity as will pay a profit
on the cost of operating the well. Pine v. Web-
ster, 118 Okl. 12, 246 P. 429, 430; Waring v. Lock-
ett, Tex.Civ.App., 118 S.W.2d 1000. Sufficient
quantities to pay a reasonable profit on the whole
sum required to be expended, including the cost
of drilling, equipping, and operating the well.
Pelham Petroleum Co. v. North, 78 Okl. 39, 188
P. 1069, 1073; Aycock v. Paraffine Oil Co., Tex.
Civ.App., 210 S.W. 851, 853.
If the well pays a profit, even small, over operating ex-
penses, it produces in paying quantities, though it may
never repay its cost, and the operation as a whole may
prove unprofitable. Gypsy Oil Co. v. Marsh, 121 Okl. 135,
248 P. 329, 333, 48 A.L.R. 876; Masterson v. Amarillo Oil
Co., Tex.Civ.App., 253 S.W. 908, 915.
PAYMASTER. An officer of the army or navy
whose duty is to keep the pay-accounts and pay
the wages of the officers and men. Any official
charged with the disbursement of public money.
PAYMASTER GENERAL. In English law. The
officer who makes the various payments out of
the public money required for the different de-
partments of the state by issuing drafts on the
Bank of England. Sweet. In American law, the
officer at the head of the pay corps of the army is
so called, also the naval officer holding corre-
sponding office and rank with reference to the
pay department of the navy.
PAYMENT. The fulfilment of a promise, or the
performance of an agreement.
A discharge of an obligation or debt, and part
payment, if accepted, is a discharge pro tanto.
Hattrem v. Burdick, 138 Or. 660, 6 P.2d 18, 19.
In a more restricted legal sense payment is the
performance of a duty, promise, or obligation, or
discharge of a debt or liability, by the delivery
of money or other value by a debtor to a creditor,
where the money or other valuable thing is ten-
dered and accepted as extinguishing debt or ob-
ligation in whole or in part. Also the money or
other thing so delivered. Root v. Kelley, 39 Misc.
530, 80 N.Y.Supp. 482; Moulton v. Robison, 27
N.H. 554; Clay v. Lakenan, 101 Mo.App. 563, 74
S.W. 391; Roberts v. Vonnegut, 58 Ind.App. 142,
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104 N.E. 321, 326; Buhl Highway Dist. v. Allred,
41 Idaho 54, 238 P. 298, 304.
Satisfaction of a debt in coin of the realm. Het-
trick Mfg. Co. v. Barish, 120 Misc.Rep. 673, 199
N.Y.S. 755, 760.
"Payment" implies discharge of an obligation according
to its terms or by something given or received of agreed
value equal to the debt or liability. Crutchfield v. Johnson
& Latimer, 243 Ala. 73, 8 So.2d 412, 414. "Payment" of a
debt involves both tender by debtor with intention to pay
debt, and acceptance by creditor. In re McElmurray, D.C.
S.C., 47 F.Supp. 15, 19. Anything delivered and accepted
in discharge of obligation is payment of debt. Barret v.
Clarke, 226 Ky. 109, 9 S.W.2d 1091, 1093.
Though "payment" in a broad sense includes money or
anything else of value which the creditor accepts in satis-
faction of his debt, it means in its restricted sense full
satisfaction paid by money and not by exchange or com-
promise or by an accord and satisfaction. Roach v. Mc-
Donald, 187 Ala. 64, 65 So. 823. "Payment" is generally
understood to mean a discharge by a compliance with the
terms of the obligation or its equivalent, while in an "ac-
cord and satisfaction" the discharge is effected by the per-
formance of terms other than those originally agreed on.
Barcus v. J. I. Case Threshing Mach. Co., Tex.Civ.App.,
197 S.W. 478, 480.
The execution and delivery of negotiable papers is not
payment unless it is accepted by the parties in that sense.
Seamen v. Muir, 72 Or. 583, 144 P. 121, 123; Cleve v. Craven
Chemical Co., C.C.A.N.C., 18 F.2d 711, 712, 52 A.L.R. 980 ;
Morrison v. Chapman, 155 App. Div. 509, 140 N.Y.S. 700,
702; Reid v. Topper, 32 Ariz. 381, 259 P. 397, 399; People
v. Davis, 237 Mich. 165, 211 N.W. 36, 37.
Pleading. When the defendant alleges that he
has paid the debt or claim laid in the declaration,
this is called a "plea of payment."
General
Part payment. The reduction of any debt or
demand by the payment of a sum less than the
whole amount originally due. Young v. Perkins,
29 Minn. 173, 12 N.W. 515; Moffitt v. Carr, 48
Neb. 403, 67 N.W. 150, 58 Am.St.Rep. 696.
Partial payments. The United States rule of
partial payments is to apply the payment, in
the first place, to the discharge of the interest
then due. If the payment exceeds the interest,
the surplus goes toward discharging the princi-
pal, and the subsequent interest is to be computed
on the balance of principal remaining due. If the
payment be less than the interest, the surplus of
the interest must not be taken to augment the
principal; but interest continues on the former
principal until the period of time when the pay-
ments, taken together, exceed the interest then
due, to discharge which they are applied, and the
surplus, if any, is to be applied towards the dis-
charge of the principal, and the interest is to be
computed on the balance as aforesaid, and this
process continues until final settlement. Langton
v. Kops, 41 N.D. 442, 171 N.W. 334, 336.
Payment into court. In practice. The act of a
defendant in depositing the amount which he ad-
mits to be due, with the proper officer of the court,
for the benefit of the plaintiff and in answer to
his claim.
Voluntary payment. A payment made by a
debtor of his own will and choice, as distinguished
from one' exacted from him by process of execu-
tion or other compulsion. Redmond v. New York,
125 N.Y. 632, 26 N.E. 727; Rumford Chemical
Works v. Ray, 19 R.I. 456, 34 A. 814; St. Johns
Electric Co. v. City of St. Augustine, 81 Fla. 588,
88 So. 387; Greene v. E. H. Taylor, Jr. & Sons,
184 Ky. 739, 212 S.W. 925, 928. Payments may be
voluntary which are made unwillingly as a choice
of evils. Singer Sewing Mach. Co. v. Teasley,
198 Ala. 673, 73 So. 969, 971. But money paid
under a mistake of the facts is not ordinarily
treated as ,falling within the rule that money paid
with full knowledge of all the facts relating to
the claim paid constitutes a voluntary payment,
and cannot be recovered back. Strong & Jarvis v.
Oldsmobile Co. of Vermont, 96 Vt. 355, 120 A. 100,
102.
PAYS. Fr. Country. Trial per pays, trial by
jury, (the country.) See Pais.
PEACE. The concord or final agreement hi a
fine of land. 18 Edw. I. modus levandi finis.
The tranquility enjoyed by a political society,
internally by the good order which reigns among
its members, and externally by the good under-
standing it has with all other nations. Applied
to the internal regulations of a nation, peace im-
ports, in a technical sense, not merely a state of
repose and security as opposed to one of violence
or warfare, but likewise a state of public order
and decorum. Hamm.N.P. 139; 12 Mod. 566;
People v. Johnson, 86 Mich. 175, 48 N.W. 870, 13
L.R.A. 163, 24 Am.St.Rep. 116; State v. Reich-
man, 135 Tenn. 685, 188 S.W. 597, 601, Ann.Cas.
1918B, 889; Catlette v. U. S., C.C.A.W.Va., 132
F.2d 902, 906.
Articles of the peace. See Articles.
Bill of peace. See Bill.
Breach of peace. See Breach.
Conservator of the peace. See Conservator.
Justice of the peace. See that title.
Peace and quietude. Public tranquillity and
bedience to law, and that public order and securi-
ty which is commanded by the laws of a particu-
lar sovereign, lord or superior. Weakley v. State,
168 Ark. 1087, 273 S.W. 374, 377.
Peace of God. The words, "in the peace of
God and the said commonwealth, then and there
being," as used in indictments for homicide and
in the definition of murder, mean merely that it
is not murder to kill an alien enemy in time of
war, provided such killing occur in the actual
exercise of war. Whart.Cr.Law, § 310; State v.
Gut, 13 Minn. 341 (Gil. 315).
Peace of God and the church. In old Eng-
lish law. That rest and cessation which the
king's subjects had from trouble and suit of law
between the terms and on Sundays and holidays.
Cowell; Spelman.
Peace of the state. The protection, security,
and immunity from violence which the state
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undertakes to secure and extend to all persons
within its jurisdiction and entitled to the benefit
of its laws. This is part of the definition of mur-
der, it being necessary that the victim should be
"in the peace of the state," which now practical-
ly includes all persons except armed public ene-
mies. See Murder. And see State v. Dunkley, 25
N.C. 121.
Peace officers. This term is variously defined
by statute in the different states; but gen-
erally it includes sheriffs and their deputies, con-
stables, marshals, members of the police force of
cities, and other officers whose duty is to enforce
and preserve the public peace. People v. Clinton,
28 App.Div. 478, 51 N.Y.S. 115; Jones v. State,
Tex.Cr.App., 65 S.W. 92.
Public peace. The peace or tranquillity of
the community in general; the good order and
repose of the people composing a state or munici-
pality. State v. Mancini, 91 Vt. 507, 101 A. 581,
583; State ex rel. Pollock v. Becker, 289 Mo. 660,
233 S.W. 641, 649. That invisible sense of secur-
ity which every man feels so necessary to his com-
fort, and for which all governments are instituted.
Redfield, J., in State v. Benedict, 11 Vt. 236, 34
Am.Dec. 688.
Public peace and quiet. Peace, tranquillity,
and order and freedom from agitation or dis-
turbance, the security, good order, and decor-
um guaranteed by civil society and by the law.
State v. Brooks, 146 La. 325, 83 So. 637, 639.
PEACEABLE. Free from the character of force,
violence, or trespass; as, a "peaceable entry"
on lands. "Peaceable possession" of real estate
is such as is acquiesced in by all other persons,
including rival claimants, and not disturbed by
any forcible attempt at ouster nor by adverse
suits to recover the possession or the estate.
Stanley v. Schwalby, 13 S.Ct. 418, 147 U.S. 508, 37
L.Ed. 259; Allaire v. Ketcham, 55 N.J.Eq. 168, 35
A. 900; North Fort Worth Townsite Co. v. Tay-
lor, Tex.Civ.App., 262 S.W. 505; Mascall v. Mur-
ray, 76 Or. 637, 149 P. 517, 519.
PECCATA CONTRA NATURAM SUNT GRAVIS-
SIMA. 3 Inst. 20. Crimes against nature are
the most heinous.
PECCATUM PECCATO ADDIT QUI CULPZE
QUAM FACIT PATROCINIA DEFENSIONIS
ADJUNGIT. 5 Coke, 49. He adds fault to fault
who sets up a defense of a wrong committed by
him.
PECK. A measure of two gallons; a dry meas-
ure.
PECIA. A piece or small quantity of ground.
Paroch.Antiq. 240.
PECORA. Lat. In Roman law. Cattle; beasts.
The term included all quadrupeds that fed in
flocks. Dig. 32, 65, 4.
PECULATION. The unlawful appropriation, by
a depositary of public funds, of the property of
the government intrusted to his care, to his own
use, or that of others. Domat.Supp. au Droit
Public, 1. 3, tit. 5; Bork v. People, 91 N.Y. 16.
The fraudulent misappropriation by one to his own use
of money or goods intrusted to his care. White v. Com-
monwealth, 158 Va. 462, 164 S.E. 375, 3/8.
PECULATUS. Lat. In the civil law. The offense
of stealing or embezzling the public money. 4
Bl.Comm. 121, 122.
PECULIAR, adj. Particular or special. Wolf v.
Mallinckrodt Chemical Works, 336 Mo. 746, 81 S.
W.2d 323, 330.
PECULIAR, n. In ecclesiastical law. A parish
or church in England which has jurisdiction of
ecclesiastical matters within itself, and independ-
ent of the ordinary, and is subject only to the
metropolitan.
PECULIARS, COURT OF. In English law. A
branch of and annexed to the court of arches.
It has a jurisdiction over all those parishes dis-
persed through the province of Canterbury, in
the midst of other dioceses, which are exempt
from the ordinary's jurisdiction, and subject to
the metropolitan only.
PECULIUM. Lat. In Roman law. Such private
property as might be held by a slave, wife, or son
who was under the patria potestas, separate from
the property of the father or master, and in the
personal disposal of the owner.
PECULIUM CASTRENSE. In Roman law. That
kind of peculium which a son acquired in war,
or from his connection with the camp, (castrum.)
Heinecc. Elem. lib. 2, tit. 9, § 474.
PECUNIA. Lat. Originally and radically, prop-
erty in cattle, or cattle themselves. So called be-
cause the wealth of the ancients consisted in cat-
tle. Co.Litt. 207b.
In old English law. Goods and chattels. Spel-
man.
In the civil law. Property in general, real or
personal; anything that is actually the subject
of private property. In a narrower sense, person-
al property; fungible things. In the strictest
sense, money. This has become the prevalent,
and almost the exclusive, meaning of the word.
PECUNIA CONSTITUTA. In Roman law. Mon-
ey owing (even upon a moral obligation) upon a
day being fixed (constituta) for its payment, be-
came recoverable upon the implied promise to
pay on that day, in an action called "de pecunia
constituta," the implied promise not amounting
(of course) to a stipulatio. Brown.
PECUNIA DICITUR A PECUS, OMNES ENIM
VETERUM DIVITIZE IN ANIMALIBUS CON-
SISTEBANT. Co.Litt. 207. Money (pecunia) is
so called from cattle, (pecus,) because all the
wealth of our ancestors consisted in cattle.
PECUNIA NON NUMERATA. In the civil law.
Money not paid. The subject of an exception or
plea in certain cases. Inst. 4, 13, 2.
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PECUNIA NUMERATA. Money numbered or
counted out; e., given in payment of a debt.
PECUNIA SEPULCHRALIS. Money anciently
paid to the priest at the opening of a grave for
the good of the deceased's soul.
PECUNIA TRAJECTITIA. In the civil law. A
loan in money, or in wares which the debtor pur-
chases with the money to be sent by sea, and
whereby the creditor, according to the contract,
assumes the risk of the loss from the day of the
departure of the vessel till the day of her arrival
at her port of destination. Interest does not nec-
essarily arise from this loan, but when is stipu-
lated for it is termed "nauticum fcenus," (mari-
time interest,) and, because of the risk which
the creditor assumes, he is permitted to receive a
higher interest than usual. Mackeld.Rom.Law,
§ 433.
PECUNIARY. Monetary; relating to money;
financial; consisting of money or that which can
be valued in money. El Paso Electric Ry. Co. v.
Benjamin, Tex.Civ.App., 202 S.W. 996, 998; In re
Foster's Will, 143 Misc. 191, 256 N.Y.S. 383, 387.
As to pecuniary "Consideration," "Damages,"
and "Legacy," see those titles.
PECUNIARY BENEFITS. Include such things
only as can be valued in money. Dallas Ry. &
Terminal Co. v. Moore, Tex.Civ.App., 52 S.W.2d
104.
PECUNIARY CAUSES. In English ecclesiastical
practice. Causes arising from the withholding of
ecclesiastical dues, or the doing or neglecting
some act relating to the church whereby some
damage accrues to the plaintiff. 3 B1.Comm. 88.
PECUNIARY CONDITION. Within statute rela-
tive to obtaining goods by false pretenses, com-
prehends, not only money in hand, but property
and all other assets of value constituting an exist-
ing fact that go to make up financial responsibil-
ity as a basis of credit. Dennis v. State, 16 Ala.
App. 115, 75 So. 707, 708.
PECUNIARY LOSS. A loss of money, or of
something by which money or something of mon-
ey value may be acquired. Green v. Hudson Riv-
er R. Co., 32 Barb. (N.Y.) 33.
As applied to a dependent's loss from death pecuniary
loss means the reasonable expectation of pecuniary benefit
from the continued life of the deceased, to be inferred from
proof of assistance by way of money, services, or other
material benefits rendered prior to death. Standard
Forgings Co. v. Holmstrom, 58 Ind.App. 306, 104 N.E. 872,
875; Louisville & N. R. Co. v. Holloway's Adm'r, 168 Ky.
262, 181 S.W. 1126, 1129. "Pecuniary loss" is a term em-
ployed judicially to discriminath between a material loss
which is susceptible of pecuniary valuation, and that in-
estimable loss of the society and companionship of the de-
ceased relative upon which, in the nature of things, it IS
not possible to set a pecuniary valuation. Michigan Cent.
R. Co. v. Vreeland, 33 S.Ct. 192, 196, 227 U.S. 59, 57 L.Ed.
417, Ann.Cas.1914C, 176.
PECUS. Lat. In Roman law. Cattle; a beast.
Under a bequest of pecudes were included oxen
and other beasts of burden. Dig. 32, 81, 2.
PEDAGE. In old English law. A toll or tax paid
by travelers for the privilege of passing, on foot
or mounted, through a forest or other protected
place. Spelman,
PEDAGIUM. L. Lat. Pedage, (q. v.)
PEDANEUS. Lat. In Roman law. At the foot',
in a lower position; on the ground. See Judex
Pedaneus.
PEDAULUS (Lat. pes foot). In civil law. A
judge who sat at the foot of the tribunal,  e.
on the lowest seats, ready to try matters of little
moment at command of the praetor. Calvinus,
Lex.; Vicat, Voc.Jur.
PEDDLER. An itinerant trader; a person who
sells small wares, which he carries with him in
traveling about from place to place. In re Wil-
son, 19 D.C. 341, 12 L.R.A. 624; Hall v. State, 39
Fla. 637, 23 So. 119; Graffty v. Rushville, 107 Ind.
502, 8 N.E. 609, 57 Am.Rep. 128; In re Pringle, 67
Kan. 364, 72 P. 864; State ex rel. Brittain v. Hayes,
143 La. 39, 78 So. 143, 144; De Witt v. State, 155
Wis. 249, 144 N.W. 253. Persons, except those ped-
dling newspapers, Bibles, or religious tracts,
who sell, or offer to sell, at retail, goods, wares,
or other commodities, traveling from place to
place, in the street, or through different parts of
the country are peddlers. 12 U.S. St. at Large, p.
458, § 27.
Distinguished from "trader" who has goods for sale and
sells them in a fixed place of business. Commonwealth v.
Bergeron, 296 Mass. 60, 5 N.E.2d 31, 32.
PEDESTRIAN. A person traveling on foot.
Leopold v. Williams, 54 Ohio App. 540, 8 N.E.2d
476; Maletis v. Portland Traction Co., 160 Or. 30,
83 P.2d 141, 143.
PEDE PULVEROSUS. In old English and Scotch
law. Dusty-foot. A term applied to itinerant
merchants, chapmen, or peddlers who attended
fairs.
PEDERASTY. In criminal law. The unnatural
carnal copulation of male with male, particularly
of a man with a boy; a form of sodomy, (q. v.)
PEDIGREE. Lineage, descent, and succession of
families; line of ancestors from which a person
descends; genealogy. An account or register of
a line of ancestors. Family relationship. Swink
v. French, 11 Lea, Tenn., 80, 47 Am.Rep. 277;
People v. Mayne, 118 Cal. 516, 50 P. 654, 62 Am.
St.Rep. 256; In re Wood's Estate, 164 Misc. 425,
299 N.Y.S. 195, 202.
The rule admitting hearsay evidence in matters of
"pedigree" embraces, not only descent and relationship,
but also facts and dates of birth, marriage, and death.
Lincoln Reserve Life Ins. Co. v. Morgan, 126 Ark. 615, 191
S.W. 236; In re Paulsen's Estate, 179 Cal. 528, 178 P. 143,
145; Tuite v. Supreme Forest Woodmen Circle, 193 Mo.
App. 619, 187 S.W. 137, 140.
PEDIS ABSCISSIO. Lat. In old criminal law.
The cutting off a foot; a punishment anciently
inflicted instead of death. Fleta, lib. 1, c. 38.
PEDIS POSITIO. Lat. In the civil and old Eng-
lish law. A putting or placing of the foot. A
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term used to denote the possession of lands by ac-
tual corporal entry upon them. Waggoner V.
Hastings, 5 Pa. 303.
PEDIS POSSESSIO. Lat. A foothold; an actual
possession. To constitute adverse possession
there must be pedis possessio, or a substantial in-
closure. 2 Bouv.Inst. no. 2193; Bailey v. Irby, 2
Nott & McC. (S.C.) 343, 10 Am.Dec. 609.
PEDONES. Foot-soldiers.
PEEPING TOM. A person who makes it a habit
of sneaking up .to windows and peeping in, for
the purpose generally of seeing the women of the
household in the nude. Browder v. Cook, D.C.
Idaho, 59 F.Supp. 225, 231.
PEERAGE. The rank or dignity of a peer or
nobleman. Also the body of nobles taken collec-
tively.
PEERESS. A woman who belongs to the nobil-
ity, which may be either in her own right or by
right of marriage.
PEERS. In feudal law. The vassals of a lord
who sat in his court as judges of their co-vassals,
and were called "peers," as being each other's
equals, or of the same condition. The nobility of
Great Britain, being the lords temporal having
seats in parliament, and including dukes, marquis-
es, earls, viscounts, and barons.
Equals; those who are a man's equals in rank
and station; thus "trial by a jury of his peers"
means trial by jury of citizens. In re Grilli, 110
Misc. 45, 179 N.Y.S. 795, 797. For "judgment of
his peers," see Judgment.
PEERS OF FEES. Vassals or tenants of the
same lord, who were obliged to serve and attend
him in his courts, being equal in function. These
were termed "peers of fees," because holding fees
of the lord, or because their business in court
was to sit and judge, under their lords, of dis-
putes arising upon fees; but, if there were too
many in one lordship, the lord usually chose
twelve, who had the title of peers, by way of
distinction; whence, it is said, we derive our
common juries and other peers. Cowell.
PEINE FORTE ET DURE. L. Fr. In old Eng-
lish law. A special form of punishment for those
who, being arraigned for felony, obstinately
"stood mute," that is, refused to plead or to put
themselves upon trial. It is described as a com-
bination of solitary confinement, slow starvation,
and crushing the naked body with a great load of
iron. This atrocious punishment was vulgarly
called "pressing to death." See 4 Bl.Comm. 324-
328; Britt. cc. 4, 22; 2 Reeve, Eng.Law 134; Cow-
ell.
PELA. A peal, pile, or fort. Cowell.
PELES. Issues arising from or out of a thing.
Jacob.
PELFE, or PELFRE. Booty; also the personal
effects of a felon convict. Cowell.
PELLAGE. The custom or duty paid for skins
of leather.
PELLEX. Lat. In Roman law. A concubine.
Dig. 50, 16, 144.
PELLICIA. A pilch or surplice. Spelman.
PELLIPARIUS. A leather-seller or skinner. Ja-
cob.
PELLOTA. The ball of a foot. 4 Inst. 308.
PELLS, CLERK (or MASTER) OF THE. For-
merly, an officer in the English exchequer, who
entered every teller's bill on the parchment rolls,
i. e., "pens," commonly two in number, one being
the pell or roll of receipts, and the other the pell
or roll of disbursements.
PELT-WOOL. The wool pulled off the skin or
pelt of dead sheep. 8 Hen. VI. c. 22.
PENAL. Punishable; inflicting a punishment;
containing a penalty, or relating to a penalty.
Missouri, K. & T. Ry. Co. v. Dewey Portland Ce-
ment Co., 113 Okl. 142, 242 P. 257.
PENAL ACTION. In practice. An action upon a
penal statute; an action for the recovery of a
penalty given by statute. 3 Steph. 535, 536;
Smith Engineering Works v. Custer, 194 Okl. 318,
151 P.2d 404, 407, 408. An action which enforces
a forfeiture or penalty for transgressing the law.
The term "penal" is broader than "criminal," and
relates to actions which are not necessarily crim-
inal as well. The term "penalty" in its broad
sense is a generic term which includes fines as
well as other kinds of punishment, but in its nar-
rowest sense is the amount recovered for violation
of the statute law of the state or a municipal or-
dinance, which violation may or may not be a
crime, and the term applies mostly to a pecuniary
punishment. The word "forfeiture" is frequently
used in civil as well as criminal law, and it is
also used in actions for a penalty, although the
action is a civil one. Silberman v. Skouras Thea-
tres Corporation, 11 N.J.Misc. 907, 169 A. 170, 171.
Distinguished from a popular or qui tam action, in which
the action is brought by the informer, to whom part of
the penalty goes. A penal action or information is brought
by an officer, and the penalty goes to the king. 1 Chit.
Gen.Pr. 25, note; 2 Archb. Pr. 188. But in American law,
the term includes actions brought by informers or other
private persons, as well as those instituted by governments
or public officers. In a broad sense, the term has been
made to include all actions in which there may be a re-
covery of exemplary or vindictive damages, as suits for
libel and slander, or in which special, double, or treble
damages are given by statute, such as actions to recover
money paid as usury or lost in gaming. See Bailey v.
Dean, 5 Barb., N.Y., 303; Ashley v. Frame, 4 Kan.App.
265, 45 P. 927; Cole v. Groves, 134 Mass. 472. But in a
more particular sense it means (1) an action on a statute
which gives a certain penalty to be recovered by any per-
son who will sue for it. Gawthrop v. Fairmont Coal Co.,
74 W.Va. 39, 81 S.E. 560, 561; McNeely v. City of Natchez,
148 Miss. 268, 114 So. 484, 487, or (2) an action in which
the judgment against the defendant is in the nature of a
fine or is intended as a punishment, actions in which the
recovery is to be compensatory in its purpose and effect
not being penal actions but civil suits, though they may
carry special damages by statute. Moller v. U. S., 6 C.C.
A. 459, 57 F. 490; Atlanta v. Chattanooga Foundry & Pipe
Works, 61 C.C.A. 387, 127 F. 23, 64 L.R.A. 721.
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PENAL BILL. An instrument formerly in use,
by which a party bound himself to pay a certain
sum or sums of money, or to do certain acts, or,
in default thereof, to pay a certain specified sum
by way of penalty; thence termed a "penal sum."
These instruments have been superseded by the
use of a bond in a penal sum, with conditions.
Brown.
PENAL BOND. A promise to pay a named sum
of money, the penalty, with a condition underwrit-
ten that, if a stipulated collateral thing, other than
the payment of money, be done or forborne, the
obligation shall be void. Maryland Casualty Co.
v, Kansas City, Mo., C.C.A.Mo., 128 F.2d 998, 1004.
PENAL CLAUSE. A secondary obligation en-
tered into for purpose of enforcing performance
of a primary obligation, and nature of penalty is
by way of compensation for damages and not as
punishment for failure to perform obligation.
Civ.Code, art. 2117. Reimann v. New Orleans
Public Service, 191 La. 1079, 187 So. 30, 31, 32. Al-
so a clause in a statute declaring a penalty for a
violation of the preceding clauses.
PENAL LAWS. Those which prohibit an act
and impose a penalty for the commission of it.
2 Cro.Jac. 415. Strictly and properly speaking, a
penal law is one imposing a penalty or punish-
ment (and properly a pecuniary fine or mulct)
for some offense of a public nature or wrong com-
mitted against the state. Kilton v. Providence
Tool Co., 22 R.I. 605, 48 A. 1039; Wellman v.
Mead, 93 Vt. 322, 107 A. 396, 397; Atlantic Coast
Line R. Co. v. State, 73 Fla. 609, 74 So. 595, 600.
Strictly speaking, statutes giving a private ac-
tion against a wrongdoer are not penal in their
nature, neither the liability imposed nor the rem-
edy given being penal.  If the wrong done is to
the individual, the law giving him a right of ac-
tion is remedial, rather than penal, though the
sum to be recovered may be called a "penalty"
or may consist in double or treble damages. See
Huntington v. Attrill, 13 S.Ct. 224, 146 U.S. 657,
36 L.Ed. 1123; Diversey v. Smith, 103 Ill. 390, 42
Am.Rep. _14; Cullinan v. Burkhard, 41 Misc. 321,
84 N.Y.S. 825; Credit Men's Adjustment Co. v.
Vickery, 62 Colo. 214, 161 P. 297, 298.
Where a statute is both penal and remedial, as where it
is penal in one part and remedial in the other, it should be
considered as a "penal statute" when it is sought to en-
force the penalty, and as a "remedial statute" when it is
sought to enforce the remedy. Collins v. Kidd, D.C.Tex.,
38 F.Supp. 634, 637.
PENAL SERVITUDE. In English criminal law,
is a punishment which consists in keeping an of-
fender in confinement, and compelling him to la-
bor. Steph.Crim.Dig. 2.
PENAL STATUTES. See Penal Laws.
PENAL SUM. A sum agreed upon in a bond, to
be forfeited if the condition of the bond is not
fulfilled.
PENALTY. The sum of money which the ob-
ligor of a bond undertakes to pay in the event of
his omitting to perform or carry out the terms
imposed upon him by the conditions of the bond.
Brown. Stennick v. J. K. Lumber Co., 85 Or. 444,
161 P. 97, 106. An agreement to pay a greater sum,
to secure the payment of a less sum. - It is condi-
tional, and can be avoided by the payment of the
less sum before the contingency agreed upon shall
happen. By what name it is called is immaterial.
McClain v. Continental Supply Co., 66 Old. 225,
168 P. 815, 816. A punishment; a punishment im-
posed by statute as a consequence of the commis-
sion of an offense. People v. Nedrow, 122 Ill. 363,
13 N.E. 533; State of Iowa v. Chicago, etc., R. Co.,
C.C., 37 F. 497, 3 L.R.A. 554; Miller v. Bopp, 136
La. 788, 67 So. 831. Also money recoverable by
virtue of a statute imposing a payment by way
of punishment. City of Buffalo v. Neubeck, 209
App.Div. 386, 204 N.Y.S. 737, 738. State v. Frank-
lin, 63 Utah, 442, 226 P. 674, 676. Brown v. Corn-
mins Distilleries Corporation, D.C.Ky., 56 F.Supp.
941, 942.
To constitute a "punishment" or "penalty" there must
be a deprivation of property or some right, such as the
enjoyment of liberty. State v. Cowen, 231 Iowa 1117, 3 N.
W.2d 176, 179, 182.
PENANCE. In ecclesiastical law. An ecclesias-
tical punishment inflicted by an ecclesiastical
court for some spiritual offense. Ayl.Par. 420.
PENCIL. An instrument made of plumbago, red
chalk, or other suitable substance, for writing
without ink.
PENDENCY. Suspense; the state of being pen-
dent or undecided; the state of an action, etc.,
after it has been begun, and before the final dis-
position of it.
PENDENS. Lat. Pending; as lis pendens, a
pending suit.
PENDENT JURISDICTION. Original jurisdiction
resting under federal claim extends to any non-
federal claim against same defendant if the fed-
eral question is substantial and the federal and
nonfederal claims constitute a single cause of
action. Fullerton v. Monongahela Connecting R.
Co., D.C.Pa., 242 F.Supp. 622, 626. Such jurisdic-
tion exists, even though it is determined that no
cause of action is made out under federal grounds.
Taussig v. Wellington Fund, Inc., D.C.Del., 187
F.Supp. 179, 191. The test is whether substantial-
ly the same evidence will prove both the federal
and nonfederal claims. Wagner v. World Wide
Automobiles Corp., D.C.N.Y., 201 F.Supp. 22, 24.
PENDENTE LITE. Lat. Pending the suit; dur-
ing the actual progress of a suit; during litiga-
tion. In re Morrissey's Will, 91 N.J.Eq. 289, 107
A. 70, 71.
PENDENTE LITE NIHIL INNOVETUR. Co.
Litt. 344. During a litigation nothing new should
be introduced.
PENDENTES. In the civil law. The fruits of
the earth not yet separated from the ground; the
fruits hanging by the roots. Ersk.Inst. 2, 2, 4.
PENDICLE. In Scotch law. A piece or parcel
of ground.
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PEONAGE
PENDING. Begun, but not yet completed; dur-
ing; before the conclusion of; prior to the com-
pletion of; unsettled; undetermined; in process
of settlement or adjustment. Thus, an action or
suit is "pending" from its inception until the ren-
dition of final judgment. Midkiff v. Colton, C.C.
A.W.Va., 242 F. 373, 381; Ex parte Craig, C.C.A.
N.Y., 274 F. 177, 187; United States v. 2,049.85
Acres of Land, More or Less, in Nueces County,
Tex., D.C.Tex., 49 F.Supp. 20, 22. A criminal case
is pending, in the sense that a court may correct
its records, until the judgment is fully satisfied.
Dunn v. State, 18 Okl.Cr. 493, 196 P. 739, 741.
The term "pending appeal" may refer to the
time before appeal, and while an appeal is im-
pending. Cincinnati, H. & D. Ry. Co. v. McCul-
lom, 183 Ind. 556, 109 N.E. 206, 209, Ann.Cas.1917E,
1165.
PENETRATION. A term used in criminal law,
and denoting (in cases of alleged rape) the inser-
tion of the male part into the female parts to
however slight an extent; and by which insertion
the offense is complete without proof of emis-
sion. Brown.
PENITENTIALS. A compilation or list of sins
and other penances, compiled in the Eastern
Church and in the extreme west about the sixth
century. Stubbs, Canon Law, in 1 Sel.Essays in
Anglo-Amer. L. H. 252.
PEN ITENTIARY. A prison or place of punish-
ment; the place of punishment in which convicts
sentenced to confinement and hard labor are con-
fined by the authority of the law. Millar v. State,
2 Kan. 175; Bowers v. Bowers, 114 Ohio St. 568,
151 N.E. 750, 751; State v. Rardon, 221 Ind. 154,
46 N.E.2d 605, 609.
PENNON. A standard, banner, or ensign carried
in war.
PENNY. An English coin, being the twelfth part
of a shilling. It was also used in America during
the colonial period.
PENNYWEIGHT. A Troy weight, equal to twen-
ty-four grains, or one-twentieth part of an ounce.
PENSAM. The full weight of twenty ounces.
PENSIO. Lat. In the civil law. A payment,
properly, for the use of a thing. A rent; a pay-
ment for the use and occupation of another's
house.
PENSION. A stated allowance out of the public
treasury granted by government to an individual,
or to his representatives, for his valuable services
to the country, or in compensation for loss or
damage sustained by him in the public service.
Frisbie v. U. S., 15 S.Ct. 586, 157 U.S. 160, 39
L.Ed. 657; State ex rel. Wander v. Kimmel, 256
Mo. 611, 165 S.W. 1067, 1072; Dickey v. Jackson,
181 Iowa, 1155, 165 N.W. 387, 389; Hawkins v.
Randolph, 149 Ark. 124, 231 S.W. 556, 559..
"Pensions" are in the nature of bounties of the govern-
ment, which it has the right to give, withhold, distribute,
or recall at Its discretion. Pecoy v. City of Chicago, 265
Ill. 78, 106 N,E. 435, 436; Rohe v. City of Covington, 255
Ky. 164, 73 S.W.2d 19, 20.
In civil, Scotch, and Spanish law. A rent; an
annual rent.
In English practice. An annual payment made
by each member of the inns of court. Cowell;
Holthouse. Also an assembly of the members of
the society of Gray's Inn, to consult of their af-
fairs.
PENSION OF CHURCHES. In English ecclesias-
tical law. Certain sums of money paid to clergy-
men in lieu of tithes. A spiritual person may
sue in the spiritual court for a pension originally
granted and confirmed by the ordinary, but, where
it is granted by a temporal person to a clerk, he
cannot; as, if one grant an annuity to a parson,
he must sue for it in the temporal courts. Cro.
Eliz. 675.
PENSION WRIT. A peremptory order against a
member of an inn of court who is in arrear for
his pensions, (that is, for his periodical dues),
or for other duties. Cowell.
PENSIONARY PARLIAMENT. A parliament of
Charles II which was prolonged for nearly 18
years.
PENSIONER. One who is supported by an al-
lowance at the will of another; a dependent. It
is usually applied (in a public sense) to those who
receive pensions or annuities from government,
who are chiefly such as have retired from places
of honor and emolument. Jacob.
Persons making periodical payments are some-
times so called. Thus, resident undergraduates
of the university of Cambridge, who are not on
the foundation of any college, are spoken of as
"pensioners." Mozley & Whiteley.
The head of one of the Inns of Court, otherwise
the Treasurer. Pension was used to designate
meetings of the Benchers in Gray's Inn.
PENT-ROAD. A road shut up or closed at its
terminal points. Wolcott v. Whitcomb, 40 Vt. 41.
PENTECOSTALS. In ecclesiastical law. Pious
oblations made at the feast of Pentecost by
parishioners to their priests, and sometimes by
inferior churches or parishes to the principal
mother churches. They are also called "Whit-
sun farthings." Wharton.
PEON. In Mexico. A debtor held by his creditor
in a qualified servitude to work out the debt; a
serf. Webster.
In ,India. A footman; a soldier; an inferior of-
ficer; a servant employed in the business of the
revenue, police, or judicature.
PEONAGE. The state or condition of a peon as
above defined; a condition of enforced servitude,
by which the servitor is restrained of his liberty
and compelled to labor in liquidation of some debt
or obligation, real or pretended, against his will.
Peonage Cases, D.C.Ala., 123 F. 671; In re Lewis,
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PEONIA
C.C.Fla., 114 F. 963; Pierce v. U. S., C.C.A.Ga.,
146 F.2d 84, 86.
PEONIA. In Spanish law. A portion of land
which was formerly given to a simple soldier on
the conquest of a country. It is now a quantity
of land of different size in different provinces.
In the Spanish possessions in America it meas-
ured fifty feet front and one hundred feet deep.
2 White, N.Rec. 49; Strother v. Lucas, 12 Pet.,
U.S. 444, 9 L.Ed. 1137. See Caballeria.
PEOPLE. A state; as the people of the state
of New York. A nation in its collective and politi-
cal capacity. Nesbitt v. Lushington, 4 Term R.
783; U. S. v. Quincy, 6 Pet. 467, 8 L.Ed. 458; U. S.
v. Trumbull, D.C.Cal., 48 F. 99. The aggregate or
mass of the individuals who constitute the state.
Solon v. State, 54 Tex.Cr.R. 261, 114 S.W. 349; Loi
Hoa v. Nagle, C.C.A.Cal., 13 F.2d 80, 81.
In a more restricted sense, and as generally used in con-
stitutional law, the entire body of those citizens of a state
or nation who are invested with political power for politi-
cal purposes, that is, the qualified voters or electors.
Koehler v. Hill, 60 Iowa 543, 15 N.W. 609; Boyd v.
Nebraska, 12 S.Ct. 375, 143 U.S. 135, 36 L.Ed. 103; In re
Incurring of State Debts, 19 R.I. 610, 37 A. 14; In re
Opinion of the Justices, 226 Mass. 607, 115 N.E. 921, 922;
State v. City of Albuquerque, 31 N.M. 576, 249 P. 242, 247.
In neutrality laws, a government recognized by
the United States. The Three Friends, D.C.Fla.,
78 F. 175.
The word "people" may have various significations ac-
cording to the connection in which it is used. When we
speak of the rights of the people, or of the government of
the people by law, or of the people as a non-political ag-
gregate, we mean all the inhabitants of the state or nation,
without distinction as to sex, age, or otherwise. But when
reference is made to the people as the repository of sov-
ereignty, or as the source of governmental power, or to
popular government, we are in fact speaking of that se-
lected and limited class of citizens to whom the constitu-
tion accords the elective franchise and the right of partici-
pation in the offices of government. Black, Const. Law 3d
Ed. p, 30.
PEPPERCORN. A dried berry of the black pep-
per. In English law, the reservation of a merely
nominal rent, on a lease, is sometimes expressed
by a stipulation for the payment of a peppercorn.
PER. Lat. By, through, or by means of. Lea v.
Helgerson, Tex.Civ.App., 228 S.W. 992, 993. When
a writ of entry is sued out against the alienee of
the original intruder or disseisor, or against his
heir to whom the land has descended, it is said
to be brought "in the per," because the writ then
states that the tenant had not entry but by (per)
the original wrong-doer. 3 B1.Comm. 181.
Words "by," "per," "pro," used to signature and add-
ing description thereto, such as agent, shows that person
signed official name alone and not personally. Agricultural
Bond & Credit Corporation v. Courtenay Farmers' Co-op.
Ass' n, 64 N.D. 253, 251 N.W. 881.
PER IES ET LIBRAM. Lat. In Roman law.
The sale per ces et libram (with copper and
scales) was a ceremony used in transferring res
mancipi, in the emancipation of a son or slave,
and in one of the forms of making a will. The
parties having assembled, with a number of wit-
nesses, and one who held a balance or scales,
the purchaser struck the scales with a copper
coin, repeating a formula by which he claimed
the subject-matter of the transaction as his prop-
erty, and handed the coin to the vendor.
PER ALLUVIONEM. Lat. In the civil law. By
alluvion, or the gradual and imperceptible in-
crease arising from deposit by water.
PER ALLUVIONEM ID VIDETUR ADJICI
QUOD ITA PAULATIM ADJICITUR UT INTEL-
LIGERE NON POSSUMUS QUANTUM QUOQUO
MOMENTO TEMPORIS ADJICIATUR. That is
said to be added by alluvion which is so added lit-
tle by little that we cannot tell how much is add-
ed at any one moment of time. Dig. 41, 1, 7, 1;
Fleta, 1. 3, c. 2, § 6.
PER AND CUL When a writ of entry is brought
against a second alienee or descendant from the
disseisor, it is said to be in the per and cui, be-
cause the form of the writ is that the tenant had
not entry but by and under a prior alienee, to
whom the intruder himself demised it, 3 Bl.
Comm. 181.
PER AND POST. To come in in the per is to
claim by or through the person last entitled to
an estate; as the heirs or assigns of the grantee.
To come in in the post is to claim by a paramount
and prior title; as the lord by escheat.
PER ANNULUM ET BACULUM. L. Lat. In old
English law. By ring and staff, or crozier. The
symbolical mode of conferring an ecclesiastical
investure. 1 B1.Comm. 378, 379.
PER ANNUM. Lat. By the year. A phrase still
in common use. Ramsdell v. Hulett, 50 Kan. 440,
31 P. 1092; Matheson v. Marion County Lumber
Co., 95 S.C. 352, 78 S.E. 970, 971.
PER AUTRE VIE. L. Fr. For or during anoth-
er's life; for such period as another person 'shall
live.
PER AVERSIONEM. Lat. In the civil law. By
turning away. A term applied to that kind of
sale where the goods are taken in bulk, and not
by weight or measure, and for a single price;
or where a piece of land is sold as containing in
gross, by estimation, a certain number of acres.
Poth.Cont.Sale, nn. 256, 309. So called because the
buyer acts without particular examination or dis-
crimination, turning his face, as it were, away.
Calvin.
PER BOUCHE. L. Fr. By the mouth; orally.
3 How. State Tr. 1024.
PER CAPITA. Lat. By the heads or polls; ac-
cording to the number of individuals; share and
share alike. This term, derived from the civil
law, is much used in the law of descent and dis-
tribution, and denotes that method of dividing an
intestate estate by which an equal share is given
to each of a number of persons, all of whom stand
in equal degree to the decedent, without reference
to their stocks or the right of representation. It
is the antithesis of per stirpes, (q. v.). Buxton v.
Noble, 146 Kan. 671, 73 P.2d 43, 47. MacGregor
v. Roux, 198 Ga. 520, 32 S.E.2d 289, 291.
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*PER QUOD
PER CENT. An abbreviation of the Latin "per
centum," meaning by the hundred, or so many
parts in the hundred, or so many hundredths.
Blakeslee v. Mansfield, 66 Ill.App. 119.
PER CONSEQUENS. Lat. By consequence; con-
sequently. Yearb. M. 9 Edw. III. 8.
PER CONSIDERATIONEM CURVE. Lat. In old
practice. By the consideration (judgment) of the
court. Yearb. M. 1 Edw. II. 2.
PER CURIAM. Lat. By the court. A phrase
used in the reports to distinguish an opinion of
the whole court from an opinion written by any
one judge. Sometimes it denotes an opinion
written by the chief justice or presiding judge.
Clarke v. Western Assur. Co., 146 Pa. 561, 23 A.
248, 15 L.R.A. 127, 28 Am.St.Rep. 821.
PER DIEM. By the day; an allowance or
amount of so much per day. Webster.
Generally, as used in connection with compensa-
tion, wages or salary, means pay for a day's serv-
ice. Scroggie v. Scarborough, 162 S.C. 218, 160
S.E. 596, 599.
Constitution held to limit compensation which any legis-
lature may fix for its successors to mileage and "per
diem" ; hence, statute authorizing allowance of personal
expenses to legislature was unconstitutional. Gallarno v.
Long, 214 Iowa 805, 243 N.W. 719, 725.
Per diem is sometimes and by some courts held to be
Included in the term fees and sometimes otherwise, and
the two terms are not always synonymous. Anderson v.
Beadle County, 51 S.D. 6, 211 N.W. 968, 969.
Term "per diem" as used in constitutional provision
fixing compensation of members is synonymous with sal-
ary. Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815, 817, 60
A.L.R. 408.
PER EUNDEM. Lat. By the same. This phrase
is commonly used to express "by, or from the
mouth of, the same judge." So "per eundem in
eadem" means "by the same judge in the same
case."
PER EXTENSUM. Lat. In old practice. At
length.
PER FORMAM DONI. L. Lat. In English law.
By the form of the gift; by the designation of
the giver, and not by the operation of law. 2 Bl.
Comm. 113, 191.
PER FRAUDEM. Lat. By fraud. Where a plea
alleges matter of discharge, and the replication
avers that the discharge was fraudulently ob-
tained and is therefore invalid, it is called a "repli-
cation per fraudem."
PER INCURIAM. Lat. Through inadvertence.
35 Eng. Law & Eq. 302.
PER INDUSTRIAM HOMINIS. Lat. In old Eng-
lish law. By human industry. A term applied
to the reclaiming or taming of wild animals by
art, industry, and education. 2 Bl.Comm. 391.
PER INFORTUNIUM. Lat. By misadventure:
In criminal law, homicide per infortunium is com-
mitted where a man, doing a lawful act, without
any intention of hurt, unfortunately kills anoth-
er. 4 Bl.Comm. 182. See Homicide.
PER LEGEM ANGLL ZE. Lat. By the law of
England; by the curtesy. Fleta, lib. 2, c. 54, § 18.
PER LEGEM TERRZE. Lat. By the law of the
land; by due process of law. U. S. v. Kendall, 26
Ir ed.Cas. 748; Appeal of Ervine, 16 Pa. 263, 55 Am.
Dec. 499.
PER METAS ET BUNDAS. L. Lat. In old Eng-
lish law. By metes and bounds.
PER MINAS. Lat. By threats. See Duress.
PER MISADVENTURE. In old English law.
By mischance. 4 Bl.Comm. 182. The same with
per inf ortunium (q. v.).
PER MITTER LE DROIT. L. Fr. By passing the
right. One of the modes by which releases at
common law were said to inure was "per mitter le
droit," as where a person who had been disseised
released to the disseisor or his heir or feoffee.
In such case, by the release, the right which was
in the releasor was added to the possession of the
releasee, and the two combined perfected the es-
tate. Miller v. Emans, 19 N.Y. 387.
PER MITTER L'ESTATE. L. Fr. By passing
the estate. At common law, if two or more are
seised, either by deed, devise, or descent, as joint
tenants or coparceners of the same estate, and
one of them releases to the other, this is said to
inure by way of "per mitter l'estate." Miller v.
Emans, 19 N.Y. 388.
PER MY ET PER TOUT. L. Fr. By the half and
by the whole. A phrase descriptive of the mode
in which joint tenants hold the joint estate, the
effect of which, technically considered, is that for
purposes of tenure and survivorship each is the
holder of the whole, but for purposes of aliena-
tion each has only his own share, which is pre-
sumed in law to be equal. 1 Washb.Real Prop.
406.
PER PALS, TRIAL. Trial by the country; i. e., by
jury,
PER PROCURATION. By proxy; by one acting
as an agent with special powers; as under a let-
ter of attorney. These words "give notice to all
persons that the agent is acting under a special
and limited authority." 10 C.B. 689. The phrase
is commonly abbreviated to "per proc.," or "p. p.,"
and is more used in the civil law and in England
than in American law.
PER QUIE SERVITIA. Lat. A real action by
which the grantee of a seigniory could compel
the tenants of the grantor to attorn to himself.
It was abolished by St. 3 & 4 Wm. IV, c. 27, § 35.
PER QUOD. Lat. Whereby. When the declara-
tion in an action of tort, after stating the acts
complained of, goes on to allege the consequences
of those acts as a ground of special damage to
the plaintiff, the recital of such consequences is
prefaced by these words, "per quod," whereby;
•
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PER QUOD
and sometimes the phrase is used as the name
of that clause of the declaration.
Words "actionable per quod" are those not actionable
per se upon their face, but are only actionable in conse-
quence of extrinsic facts showing circumstances under
which they were said or the damages resulting to slan-
dered party therefrom. Smith v. Mustain, 210 Ky. 445,
276 S.W. 154, 155, 44 A.L.R. 386.
PER QUOD CONSORTIUM AMISIT. Lat. In old
pleading. Whereby he lost the company [of his
wife.] A phrase used in the old declarations in
actions of trespass by a husband for beating or
ill using his wife, descriptive of the special dam-
age he had sustained. 3 Bl.Comm. 140; Cro.Jac.
501, 538; Crocker v. Crocker, C.C.Mass., 98 F.
703.
PER QUOD SERVITIUM AMISIT. Lat. In old
pleading. Whereby he lost the service [of his
servant.] A phrase used in the old declarations
in actions of trespass by a master, for beating or
ill using his servant, descriptive of the special
damage he had himself sustained. 3 Bl.Comm.
142; 9 Coke, 113a; Callaghan v. Lake Hopat-
cong Ice Co., 69 N.J.Law, 100, 54 A. 223. This
action is commonly brought by the father for
the seduction of his daughter, in which case very
slight evidence of the relation of master and
servant is necessary; but still some loss of serv-
ice, or some expense, must be shown; 5 B. & P.
466; 5 Price, 641; Kendrick v. McCrary, 11 Ga.
603; Phelin v. Kenderdine, 20 Pa. 354.
PER RATIONES PERVENITUR AD LEGITI-
MAM RATIONEM. Litt. § 386. By reasoning
we come to true reason.
PER RERUM NATURAM FACTUM NEGANTIS
NULLA PROBATIO EST. It is in the nature of
things that he who denies a fact is not bound to
give proof.
PER SALTUM. Lat. By a leap or bound; by
a sudden movement; passing over certain pro-
ceedings. 8 East, 511.
PER SAMPLE. By sample. A purchase so made
is a collateral engagement that the goods shall be
of a particular quality. 4 B. & Ald. 387.
PER SE. Lat. By himself or itself; in itself;
taken alone; inherently; in isolation; uncon-
nected with other matters. Findley v. Wilson,
115 Okl. 280, 242 P. 565, 568; Rowan v. Gazette
Printing Co., 74 Mont. 326, 239 P. 1035, 1037.
PER STIRPES. Lat. By roots or stocks; by
representation. This term, derived from the civil
law, is much used in the law of descents and dis-
tribution, and denotes that method of dividing an
intestate estate where a class or group of distribu-
tees take the share which their deceased would
have been entitled to, taking thus by their right
of representing such ancestor, and not as so many
individuals. In re Shoch's Estate, 271 Pa. 165, 114
A. 505, 506; Petition of Gee, 44 R.I. 132, 115 A.
716, 717; Buxton v. Noble, 146 Kan. 671, 73 P.2d
43, 47.
PER TOTAM CURIAM. L. Lat. By the whole
court. A common phrase in the old reports.
PER TOUT ET NON PER MY. L. Fr. By the
whole, and not by the moiety. Where an estate
in fee is given to a man and his wife, they cannot
take the estate by moieties, but both are seised of
the entirety, per tout et non per my. 2 Bl.Comm.
182.
PER UNIVERSITATEM. Lat. In the civil law.
By an aggregate or whole; as an entirety. The
term described the acquisition of an entire estate
by one act or fact, as distinguished from the ac-
quisition of single or detached things.
PER VADIUM. L. Lat. In old practice. By
gage. Words in the old writs of attachment or
pone. 3 Bl.Comm. 280.
PER VARIOS ACTUS LEGEM EXPERIENTIA
FACIT. By various acts experience frames the
law. 4 Inst. 50.
PER VERBA DE FUTURO. Lat. By words of
the future [tense.] A phrase applied to contracts
of marriage. 1 Bl.Comm. 439; 2 Kent, Comm. 87.
PER VERBA DE PRAZESENTI. Lat. By words
of the present [tense.] A phrase applied to con-
tracts of marriage. 1 Bl.Comm. 439.
PER VISUM ECCLESIiE. Lat. In old English
law. By view of the church; under the supervi-
sion of the church. The disposition of intestates'
goods per visum ecclesice was one of the articles
confirmed to the prelates by King John's Magna
Charta. 3 Bl.Comm. 96.
PER VIVAM VOCEM. Lat. In old English law.
By the living voice; the same with viva voce.
Bract. fol. 95.
PER YEAR, in a contract, is equivalent to the
word "annually." Curtiss v. Howell, 39 N.Y. 211;
Larson v. Augustana Colonization Ass'n of North
America, 155 Minn. 1, 192 N.W. 108.
PERAMBULATION. The act or custom of walk-
ing over the boundaries of a district or piece of
land, either for the purpose of determining them
or of preserving evidence of them. Thus, in many
parishes in England, it is the custom for the
parishioners to perambulate the boundaries of
the parish in rogation week in every year. Such
a custom entitles them to enter any man's land
and abate nuisances in their way. 'Phillim.Ecc.
Law, 1867; Hunt, Bound. 103; Sweet; Greenville
v. Mason, 57 N.H. 385.
The custom has now largely fallen into disuse.
Cent. Dict.
PERAMBULATIONE FACIENDA, WRIT DE. In
English law. The name of a writ which is sued
by consent of both parties when they are in doubt
as to the bounds of their respective estates. It is
directed to the sheriff to make perambulation, and
to set the bounds and limits between them in cer-
tainty. Fitzh.Nat.Brev. 133.
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PERFECT
PERCA. A perch of land; sixteen and one-half •
feet. See Perch.
PERCEIVABLE RISK. Risk which indefinite
and uncertain. Martin v. Hodson, 93 N.H. 66, 35
A.2d 402, 404.
PERCEPTION. Taking into possession. Thus,
perception of crops or of profits is reducing them
to possession. Used of money, it means the count-
ing out and payment of a debt. Also used for
food due to soldiers. Vicat, Voc.Jur.
PERCEPTURA. In old records. A wear; a place
in a river made up with banks, dams, etc., for the
better convenience of preserving and taking fish.
Cowell.
PERCH. A measure of land containing five yards
and a half, or sixteen feet and a half in length;
otherwise called a "rod" or "pole." Cowell.
As a unit of solid measure, a perch of masonry
or stone or brick work contains, according to some
authorities and in some localities, sixteen and
one-half cubic feet, but elsewhere, or according to
others, twenty-five. Unless defined by statute, it
is a very indefinite term and must be explained by
evidence. Harris v. Rutledge, 19 Iowa 388, 87 Am.
Dec. 441; Sullivan v. Richardson, 33 Fla. 1, 14 So.
692.
PERCOLATE. As used in the cases relating to
the right of land-owners to use water on their
premises, designates any flowage of sub-surface
water other than that of a running stream, open,
visible, clearly to be traced. Mosier v. Caldwell,
7 Nev. 363.
PERCOLATING WATERS. See Water.
PERDIDA. A synonym of damages. Ponce De
Leon v. Coca Cola Bottling Co., D.C.Puerto Rico,
75 F.Supp. 966.
PERDONATIO UTLAGARLZE. L. Lat. A pardon
for a man who, for contempt in not yielding
obedience to the process of a court, is outlawed,
and afterwards of his own accord surrenders.
Reg.Orig. 28.
PERDUELLIO. Lat. In Roman law. Hostility
or enmity towards the Roman republic; traitor-
ous conduct on the part of a citizen, subversive
of the authority of the laws or tending to over-
throw the government. Calvin; Vicat.
PERDURABLE. As applied to an estate, per-
durable signifies lasting long or forever. Thus, a
disseisor or tenant in fee upon condition has as
high and great an estate as the rightful owner
or tenant in fee-simple absolute, but not so per-
durable. The term is chiefly used with reference
to the extinguishment of rights by unity of seisin,
which does not take place unless both the right
and the land out of which it issues are held for
equally high and perdurable estates. Co.Litt.
313a, 313b; Gale Easem. 582; Sweet.
PEREGRINI. Lat. The name given to aliens
in Rome. The class of peregrine embraced at the
same time both those who had no capacity in
law (capacity for rights or jural relations,)
namely, the slaves, and the members of those
nations which had not established amicable rela-
tions with the Roman people. Sa y . Dr. Rom. §
66.
PEREMPT. In ecclesiastical procedure, to waive
or bar an appeal by one's own act so as partially
to comply with or acquiesce in a sentence of a
court. Phill.Eccl.L. 1275; Rog.Eccl.L. 47.
PEREMPTION. A nonsuit; also a quashing or
killing.
PEREMPTORIUS. Lat. In the civil law. That
which takes away or destroys forever; hence,
exceptio peremptoria, a plea which is a perpetual
bar. Calvin.
PEREMPTORY. Imperative; absolute; conclu-
sive; positive; not admitting of question, delay,
or reconsideration. Positive; final; 'decisive; not
admitting of any alternative. Self-determined;
arbitrary; not requiring any cause to be shown.
Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.Zd 274,
279.
As to peremptory "Challenge," "Defense," "In-
struction," "Mandamus," "Nonsuit," "Plea," and
"Writ," see those titles.
PEREMPTORY DAY. A day assigned for trial or.
hearing in court, absolutely and without further
opportunity for postponement.
PEREMPTORY EXCEPTIONS. In the civil law.
Any defense which denies entirely the ground of
action. Those exceptions which tend to the dis-
missal of the action.
PEREMPTORY PAPER. A list of the causes
which were enlarged at the request of the parties,
or which stood over from press of business in
court.
PEREMPTORY RULE. In practice. An absolute
rule; a rule without any condition or alternative
of showing cause.
PEREMPTORY UNDERTAKING. An undertak-
ing by a plaintiff to bring on a cause for trial
at the next sittings or assizes. Lush, Pr. 649.
PERFECT. Complete; finished; executed; en-
forceable; without defect; merchantable; mar-
ketable. Sliosberg v. New York Life Ins. Co.,
217 App.Div. 67, 216 N.Y.S. 215, 220; Tucker v.
Thraves, 50 Okl. 691, 702, 151 P. 598, 601; Sat-
terthwaite v. Van Dissen, 99 Okl. 233, 226 P. 583,
584.
As to perfect "Equity," "Obligation," "Owner-
ship," "Title," and "Usufruct," see those titles.
PERFECT ATTESTATION CLAUSE. One that
asserts performance of all acts required to be
done to make valid testamentary disposition. In
re Johnson's Will, Prerog., 115 N.J.Eq. 249, 171
A. 307, 309.
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PERFECT CONDITION. In a statement of the
rule that, when two claims exist in "perfect condi-
tion" between two persons, either may insist on
a set-off, this term means that state of a demand
when it is of right demandable by its terms.
Taylor v. New York, 82 N.Y. 17.
PERFECT INSTRUMENT. An instrument such
as a deed or mortgage is said to become perfect
when recorded (or registered) or filed for record,
because it then becomes good as to all the world.
Wilkins v. McCorkle, 112 Tenn. 688, 80 S.W. 834.
PERFECT MACHINE. In patent law. A per-
fected invention; not a perfectly constructed
machine, but a machine so constructed as to em-
body all the essential elements of the invention, in
a form that would make them practical and opera-
tive so as to accomplish the result.
But it is not necessary that it should accomplish that
result in the most perfect manner, and be in a condition
where it was not susceptible of a higher degree of perfec-
tion in its mere mechanical construction. American Hide,
etc., Co. v. American Tool, etc., Co., 4 Fish.Pat.Cas. 299, 1
Fed. Cas. 647.
PERFECT TRUST. An executed trust, (q. v.).
PERFECTED. Brought to a state of perfection,
completed. Krause v. Henry, Ohio App., 35 N.E.
2d 169, 170.
PERFECTING BAIL. Certain qualifications of a
property character being required of persons who
tender themselves as bail, when such persons have
justified, i. e., established their sufficiency by sat-
isfying the court that they possess the requisite
qualifications, a rule or order of court is made
for their allowance, and the bail is then said to
be perfected, i. e., the process of giving bail is
finished or completed. Brown.
PERFECTUM EST ClUI NIHIL DEEST SECUN-
DUM SIVE PERFECTIONIS VEL NATURE
MODUM. That is perfect to which nothing is
wanting, according to the measure of its perfec-
tion or nature. Hob. 151.
PERFIDY. The act of one who has engaged his
faith to do a thing, and does not do it, but does
the contrary. Wolff, Inst. § 390. Faithlessness,
treachery, violation of a promise or vow or a trust
reposed. Streeter v. Emmons County Farmers'
Press, 57 N.D. 438, 222 N.W. 455, 458.
PERFORM. To perform an obligation or con-
tract is to execute, fulfill, or accomplish it ac-
cording to its terms. This may consist either in
action on the part of the person bound by the con-
tract or in omission to act, according to the nature
of the subject-matter; but the term is usually
applied to any action in discharge of a contract
other than payment.
PERFORMANCE. The fulfillment or accomplish-
ment of a promise, contract, or other obligation
according to its terms.
Part Performance. The doing some portion,
yet not the whole, of what either party to a
contract has agreed to do. Borrow v. Borrow,
34 Wash. 684, 76 P. 305.
The "part performance" necessary to take oral contract
to sell realty out of the statute of frauds must be of such
character that it is impossible or impracticable to place the
parties in status quo and payment in full is not sufficient.
Rork v. Orcutt, 53 N.Y.S.2d 354, 356. The possession neces-
sary to constitute "part performance" which will take an
oral agreement, purporting to convey an interest in land,
out of the operation of the statute of frauds must be un-
equivocal and in consequence of the contract. Guckenberg-
er v. Shank, 110 Ind.App. 442, 37 N.E.2d 708, 714.
Specific Performance. Performance of a con-
tract in the specific form in which it was made, or
according to the precise terms agreed upon. This
is frequently compelled by a bill in equity filed for
the purpose. 2 Story, Eq.P1. § 712, et seq. The
actual accomplishment of a contract by a party
bound to fulfil} it. Guadalupe County Board of
Education v. O'Bannon, 26 N.M. 606, 195 P. 801,
803; Municipal Gas Co. v. Lone Star Gas Co., Tex.
Civ.App., 259 S.W. 684, 689. The doctrine of spe-
cific performance is that, where damages would
be an inadequate compensation for the breach
of an agreement, the contractor will be compelled
to perform specifically what he has agreed to do.
Sweet. As the exact fulfillment of an agreement
is not always practicable, the phrase may mean,
in a given case, not literal, but substantial per-
formance. Waterm.Spec.Perf. § 1.
PERGAMENUM. In old practice. Parchment.
In pergameno scribi facit. 1 And. 54.
PERICARDITIS. In medical jurisprudence. An
inflammation of the lining membrane of the heart.
PERICULOSUM EST RES NOVAS ET INUSI-
TATAS INDUCERE. Co.Litt. 379a. It is perilous
to introduce new and untried things.
PERICULOSUM EXISTIMO QUOD BONORUM
VIRORUM NON COMPROBATUR EXEMPLO.
9 Coke, 97b. I consider that dangerous which is
not approved by the example of good men.
PERICULOSUS. Lat. Dangerous; perilous.
PERICULUM. Lat. In the civil law. Peril; dan-
ger; hazard; risk.
PERICULUM REI VENDITA, NONDUM TRA-
DIME, EST EMPTORIS. The risk of a thing
sold, and not yet delivered, is the purchaser's. 2
Kent, Comm. 498, 499,
PERIL. The risk, hazard, or contingency insured
against by a policy of insurance.
Peril within humanitarian doctrine means certain peril,
not bare possibility of injury. Thomasson v. Henwood,
235 Mo.App. 1211, 146 S.W.2d 88, 91.
PERILS OF THE LAKES. As applied to naviga-
tion of the Great Lakes, this term has the same
meaning as "perils of the sea." See infra.
PERILS OF THE SEA. In maritime and insur-
ance law. Natural accidents peculiar to the sea,
which do not happen by the intervention of man,
nor are to be prevented by human prudence. 3
Kent, Comm. 216. Hence to recover on marine
policy insuring against loss by perils of sea, ves-
sel must be seaworthy when it is sent to sea.
Read v. Agricultural Ins. Co., 219 Wis. 580, 263
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PERMANENT
N.W. 632. Perils of the sea are from (1) storms
and waves; (2) rocks, shoals, and rapids; (3)
other obstacles, though of human origin; (4)
changes of climate; (5) the confinement neces-
sary at sea; (6) animals peculiar to the sea; (7)
all other dangers peculiar to the sea. Civ.Code
Cal. § 2199. All losses caused by the action of
wind and water acting on the property insured un-
der extraordinary circumstances, either directly
or mediately, without the intervention of other in-
dependent active external causes, are losses by
"perils of the sea or other perils and dangers,"
within the meaning of the usual clause in a policy
of marine insurance. Baily, Perils of Sea, 6. In
an enlarged sense, all losses which occur from
maritime adventure may be said to arise from
the perils of the sea; but underwriters are not
bound to this extent. They insure again4t losses
from extraordinary occurrences only; such as
stress of weather, winds and waves, lightning,
tempests, etc. These are understood to be meant
by the phrase "the perils of the sea," in a marine
policy, and not those ordinary perils which every
vessel must encounter. American-Hawaiian S. S.
Co. v. Bennett & Goodall, 125 C.C.A. 172, 207 F.
510, 513; The Mary F. Barrett, C.C.A.Pa., 279 F.
329, 331; Delanty v. Yang Tsze Ins. Ass'n, 127
Wash. 238, 220 P. 754, 758; Western Assur. Co. of
Toronto, Canada, v. Shaw, C.C.A.Pa., 11 F.2d 495,
496; Union Marine Ins. Co. v. Chas. D. Stone &
Co., C.C.A.Ill., 15 F.2d 937, 939.
" 'Perils of the sea' means all marine casualties resulting
from the violent action of the elements, as distinguished
from their natural, silent influence upon the fabric of tire
vessel; casualties which may, and not consequences which
must, occur." Pillsbury Flour Mills Co. v. Becker S. S.
Co., D.C.N.Y., 49 F.2d 648, 650.
PERINDE VALERE. A dispensation granted to
a clerk, who, being defective in capacity for a
benefice or other ecclesiastical function, is de
facto admitted to it. Cowell.
PERIOD, Any point, space, or division of time.
"The word has its etymological meaning, but it also has
a distinctive signification, according to the subject with
which it may be used in connection. It may mean any
portion of complete time, from a thousand years or less to
the period of a day; and when used to designate an act
to be done or to be begun, though its completion may take
an uncertain time, as, for instance, the act of exportation,
it must mean the day on which the exportation commences,
or it would be an unmeaning and useless word in its con-
nection in the statute. Sampson v. Peaslee, 20 How. 579, 15
L. Ed. 1022.
PERIODICAL. Recurring at fixed intervals; to
be made or done, or to happen, at successive pe-
riods separated by determined intervals of time;
as periodical payments of interest on a bond.
PERIPHRASIS. Circumlocution; use of many
words to express the sense of one.
PERISH. To come to an end; to cease to be;
to die.
PERISHABLE. Subject to speedy and natural
decay. But, where the time contemplated is nec-
essarily long, the term may embrace property li-
able merely to material depreciation in value from
other causes than such decay. Callahan v. Dan-
Black's Law Dictionary Revised 4th Ed.-82
ziger, 172 Cal. 738, 158 P. 760, 761; Marston v. Rue,
92 Wash. 129, 159 P. 111, 113; In re Pedlow, C.C.
A.N.Y., 209 F. 841, 842; Falmouth Co-op. Market-
ing Ass'n v. Pennsylvania R. Co., 237 Mich. 406,
212 N.W. 84, 85.
PERISHABLE COMMODITY. A relative term
used ordinarily by courts and lawyers to describe
a product, like fruit or fresh vegetables, which
quickly deteriorates in quality and value. In re
Rosenbaum Grain Corporation, C.C.A.I11., 83 F.
2d 391, 393.
PERISHABLE GOODS. Goods which decay and
lose their value if not speedily put to their in-
tended use. Kleinpeter v. Ferrara, 179 La. 193,
153 So. 689.
PERJURI SUNT QUI SERVATIS VERBIS JUR-
AMENTI DECIPIUNT AURES EORUM QUI AC-
CIPIUNT. 3 Inst. 166. They are perjured, who,
preserving the words of an oath, deceive the ears
of those who receive it.
PERJURY. In criminal law. The willful asser-
tion as to a matter of fact, opinion, belief, or
knowledge, made by a witness in a judicial pro-
ceeding as part of his evidence, either upon oath
or in any form allowed by law to be substituted
for an oath, whether such evidence is given in
open court, or in an affidavit, or otherwise, such
assertion being material to the issue or point of
inquiry and known to such witness to be false.
2 Whart.Crim.Law, § 1244; People v. Glenn, 294
Ill. 333, 128 N.E. 532, 533; Mathes v. State, 15
Okl.Cr. 382, 177 P. 120; Commonwealth v. Hinkle,
177 Ky. 22, 197 S.W. 455, 456; People v. Rendigs,
123 Misc.Rep. 32, 205 N.Y.S. 133, 136.
To constitute "perjury" an oath must be administered
by one authorized to do so. People v. Gade, City Ct., 6 N.
Y.S.2d 1018, 1021.
Perjury shall consist in willfully, knowingly, absolutely,
and falsely swearing, either with or without laying the
hand on the Holy Evangelist of Almighty God, or affirming,
in a matter material to the issue or point in question, in
some judicial proceeding, by a person to whom a lawful
oath or affirmation is administered. Code Ga. 1882, § 4460
(Pen. Code 1910, § 259). Every person who, having taken
an oath that he will testify, declare, depose, or certify
truly before any competent tribunal, officer, or person, in
any of the cases in which such an oath may by law be ad-
ministered, willfully, and contrary to such oath, states
as truth any material matter which he knows to be false,
is guilty of perjury. Pen. Code Cal. § 118. The willful
giving, under oath, in a judicial .proceeding or course of
justice, of false testimony material to the issue or point of
inquiry. 2 Bish.Crim. Law, § 1015. Perjury, at common
law, is the "taking of a willful false oath by one who, be-
ing lawfully sworn by a competent court to depose the
truth in any judicial proceeding, swears absolutely and
falsely in a matter material to the point in issue, whether
he believed or not." Comm. v. Powell, 2 Metc. (Ky.) 10;
Cothran v. State, 39 Miss. 541. It will be observed that,
at common law, the crime of perjury can be committed
only in the course of a suit or judicial proceeding. But
statutes have very generally extended both the definition
and the punishment of this offense to willful false swearing
in many different kinds of affidavits and depositions, such
as those required to be made in tax returns, pension pro-
ceedings, transactions at the custom house, and various
other administrative or non-judicial proceedings.
PERMANENT. Fixed, continuing, lasting, sta-
ble, enduring, abiding, not subject to change.
Generally opposed in law to "temporary," but not
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PERMANENT
always meaning "perpetual." Penn Mut. Life
Ins. Co. v. Milton, 160 Ga. 168, 127 S.E. 140, 141,
40 A.L.R. 1382; Roseburg Nat. Bank v. Camp, 89
Or. 67, 173 P. 313, 316. Richards v. Metropolitan
Life Ins. Co., 184 Wash. 595, 55 P.2d 1067, 1071.
As to permanent "Alimony," "Injunction," and
"Trespass," see those titles.
PERMANENT ABODE. A domicile or fixed
home, which the party may leave as his interest
or whim may dictate, but which he has no pres-
ent intention of abandoning. Moffett v. Hill, 131
Ill. 239, 22 N.E. 821; Berry v. Wilcox, 44 Neb. 82,
62 N.W. 249, 48 Am.St.Rep. 706.
PERMANENT BUILDING AND LOAN ASSO-
CIATION. One which issues its stock, not all
at once or in series, but at any time when applica-
tion is made therefor. Cook v. Equitable B. & L.
Ass'n, 104 Ga. 814, 30 S.E. 911.
PERMANENT DISABILITY. Within insurance
policies does not mean that disability must con-
tinue throughout life of insured, but it connotes
idea that disability must be something more than
temporary, and at least presumably permanent.
Commonwealth Life Ins. Co. v. Ovesen, 257 Ky.
622, 78 S.W.2d 745, 746; Equitable Life Ins. Co. of
Iowa v. Gerwick, 50 Ohio App. 277, 197 N.E. 923,
926; Equitable Life Assur. Soc. of U. S. v. Preston,
253 Ky. 459, 70 S.W.2d 18.
PERMANENT EMPLOYMENT. Provided for by
contract, means only that employment is to con-
tinue indefinitely and until either party wishes to
sever relation for some good reason. Speegle v.
Board of Fire Underwriters of Pacific, Cal.App.,
158 P.2d 426, 429; Alabama Mills v. Smith, 237
Ala. 296, 186 So. 699, 701.
PERMISSION. A license to do a thing; an au-
thority to do an act which, without such author-
ity, would have been unlawful.
PERMISSIONS. Negations of law, arising eith-
er from the law's silence or its express declara-
tion. Ruth.Inst. b. 1, C. 1.
PERMISSIVE. Allowed; allowable; that which
may be done.
PERMISSIVE USE. See Use.
PERMISSIVE WASTE. See Waste.
PERMIT, v. To suffer, allow, consent, let; to
give leave or license; to acquiesce, by failure to
prevent, or to expressly assent or agree to the
doing of an act. State v. Waxman, 93 N.J.Law,
27, 107 A. 150; State v. Peters, 112 Ohio St. 249,
147 N.E. 81, 84; Little Falls Fibre Co. v. Henry
Ford & Son, 126 Misc. 126, 212 N.Y.S. 630, 634;
Lemery v. Leonard, 99 Or. 670, 196 P. 376, 378;
Armstrong's Adm'r v. Sumne & Ratterman Co.,
211 Ky. 750, 278 S.W. 111, 113; Atwater v. Lober,
133 Misc. 652, 233 N.Y.S. 309, 313.
PERMIT, n. A license or instrument granted by
the officers of excise (or customs), certifying that
the duties on certain goods have been paid, or se-
cured, and permitting their removal from some
specified place to another. Wharton. A written
license or warrant, issued by a person in author-
ity, empowering the grantee to do some act not
forbidden by law, but not allowable without such
authority.
PERMUTATIO. Lat. In the civil law. Ex-
change; barter. Dig. 19, 4.
PERMUTATION. The exchange of one movable
subject for another; barter.
PERMUTATIONE. A writ to an ordinary, com-
manding him to admit a clerk to a benefice upon
exchange made with another. Reg.Orig. 307.
PERNANCY. Taking; a taking or receiving; as
of the profits of an estate. Actual pernancy of
the profits of an estate is the taking, perception,
or receipt of the rents and other advantages aris-
ing therefrom. 2 Bl.Comm. 163.
PERNOR OF PROFITS. He who receives the
profits of lands, etc.; he who has the actual per-
nancy of the profits.
PERNOUR. L. Fr. A taker. Le pernour ou le
detenour, the taker or the detainer. Britt. c. 27.
PERPARS. L. Lat. A purpart; a part of the
inheritance.
PERPETRATOR. Generally, this term denotes the
person who actually commits a crime or delict, or
by whose immediate agency it occurs. But, where
a servant of a railroad company is killed through
the negligence of a co-employee, the company it-
self may be regarded as the "perpetrator" of the
act, within the meaning of a statute giving an ac-
tion against the perpetrator. Philo v. Illinois
Cent. R. Co., 33 Iowa, 47.
PERPETUA LEX EST NULLAM LEGEM HU-
MANAM AC POSITIVAM PERPETUAM ESSE,
ET CLAUSULA QUIE ABROGATIONEM EX-
CLUDIT AB INITIO NON VALET. It is a per-
petual law that no human and positive law can
be perpetual, and a clause [in a law] which pre-
cludes the power of abrogation is void ab initio.
Bac. Max. p. 77, in reg. 19.
PERPETUAL. Never ceasing; continuous; en-
during; lasting; unlimited in respect of time;
continuing without intermission or interval.
Scanlan v. Crawshaw, 5 Mo.App. 337.
As to perpetual "Curacy," "Injunction,"
"Lease," and "Statute," see those titles.
PERPETUAL EDICT. In Roman law. Original:
ly the term "perpetual" was merely opposed to
"occasional" and was used to distinguish the gen-
eral edicts of the praetors from the special edicts
or orders which they issued in their judicial ca-
pacity. But under Hadrian the edict was revised
by the jurist Julianus, and was republished as a
permanent act of legislation. It was then styled
"perpetual," in the sense of being calculated to
endure in perpetuum, or until abrogated by com-
petent authority. Aust.Jur. 855.
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PERSON
PERPETUAL SUCCESSION. That continuous
existence which enables a corporation to man-
age its affairs, and hold property without the ne-
cessity of perpetual conveyances, for the purpose
of transmitting it. By reason of this quality, this
ideal and artificial person remains, in its legal
entity and personality, the same, though frequent
changes may be made of its members. Field,
Corp. § 58; Scanlan v. Crawshaw, 5 Mo.App. 340.
PERPETUATING TESTIMONY. A proceeding
for taking and preserving the testimony of wit-
nesses, which otherwise might be lost before the
trial in which it is intended to be used. It is us-
ually allowed where the witnesses are aged and
infirm or are about to remove from the state. 3
Bl.Comm. 450.
PERPETUITY. Any limitation or condition
which may take away or suspend the power of
alienation for a period beyond life or lives in be-
ing and 21 years thereafter. Loud v. St. Louis
Union Trust Co., 298 Mo. 148, 249 S.W. 629, 634;
Barton v. Thaw, 246 Pa. 348, 92 A. 312, 313, Ann.
Cas.1916D, 570; True Real Estate Co. v. True, 115
Me. 533; 99 A. 627, 630; Melvin v. Hoffman, 290
Mo. 464, 235 S.W. 107, 115. Any limitation tend-
ing to take the subject of it out of commerce for
a longer period than a life or lives in being, and
twenty-one years beyond, and, in case of a post-
humous child, a few months more, allowing for
the term of gestation. Rand.Perp. 48. Such a
limitation of property as renders it unalienable
beyond the period allowed by law. Gilb. Uses,
(Sugd. Ed.) 260. Ould v. Washington Hospital,
95 U.S. 303, 24 L.Ed. 450; Duggan v. Slocum, 34
C.C.A. 676, 92 F. 806; Stevens v. Annex Realty
Co., 173 Mo. 511, 73 S.W. 505; Griffin v. Graham,
8 N.C. 130, 9 Am.Dec. 619; In re John's Will, 30
Or. 494, 47 P. 341, 36 L.R.A. 242. See, also, Rule
Against Perpetuities.
PERPETUITY OF THE KING. That fiction of
the English law which for certain political pur-
poses ascribes to the king in his political capaci-
ty the attribute of immortality; for, though the
reigning monarch may die, yet by this fiction the
king never dies, i. e., the office is supposed to be
reoccupied for all political purposes immediately
on his death. Brown.
PERQUISITES. Anything obtained by industry
or purchased with money, different from that
which descends from a father or ancestor. Bract.
1. 2, c. 30, n. 3.
Profits accruing to a lord of a manor by virtue
of his court-baron, over and above the yearly pro-
fits of his land; also other things that come cas-
ually and not yearly. Mozley & Whiteley.
In Modern Use. Emoluments or incidental pro-
fits attaching to an office or official position, be-
yond the salary or regular fees. Harris County
v. Hammond, Tex.Civ.App., 203 S.W. 445, 448;
Christopherson v. Reeves, 44 S.D. 634, 184 N.W.
1015; State v. Reeves, 44 S.D. 568, 184 N.W. 993,
998.
PERQUISITIO. Purchase. Acquisition by one's
own act or agreement, and not by descent.
PERQUISITOR. In old English law. A pur-
chaser; one who first acquired an estate to his
family; one who acquired an estate by sale, by
gift, or by any other method, except only that of
descent. 2 Bl.Comm. 220.
PERSECUTIO. Lat. In the civil law. A follow-
ing after; a pursuing at law; a suit or prosecu-
tion. Properly that kind of judicial proceeding
before the prEetor which was called "extraordina-
ry." In a general sense, any judicial- proceeding,
including not only "actions," (actiones,) properly
so called, but other proceedings also. Calvin.
PERSEQUI. Lat. In the civil law. To follow
after; to pursue or claim in form of law. An
action is called a "jus persequendi."
PERSON. A man considered according to the
rank he holds in society, with all the right to
which the place he holds entitles him, and the du-
ties which it imposes. People v. R. Co., 134 N.Y.
506, 31 N.E. 873.
The word in its natural and usual signification
includes women as well as men. Commonwealth
v. Welosky, 276 Mass. 398, 177 N.E. 656.
Term may include artificial beings, as corpora-
tions, 1 Bla.Com. 123; 4 Bingh. 669; People
v. Com'rs of Taxes, 23 N.Y. 242; quasi-corpora-
tions, Sedgw. Stat. & Const. L. 372; L. R. 5 App.
Cas. 857; territorial corporations, Seymour v.
School District, 53 Conn. 507, 3 A. 552; and for-
eign corporations, People v. McLean, 80 N.Y. 259;
under statutes, forbidding the taking of property
without due process of law and giving to all per-
sons the equal protection of the laws, Smyth v.
Ames, 18 S.Ct. 418, 169 U.S. 466, 42 L.Ed. 819;
Gulf, C. & S. F. R. Co. v. Ellis, 17 S.Ct. 255, 165
U.S. 150, 41 L.Ed. 666; concerning claims arising
from Indian depredations, U. S. v. Transp. Co.,
17 S.Ct. 206, 164 U.S. 686, 41 L.Ed. 599; relating
to taxation and the revenue laws, People v. Mc-
Lean, 80 N.Y. 254; to attachments, Bray v. Wal-
lingford, 20 Conn. 416; usurious contracts, Phil-
adelphia Loan Co. v. Towner, 13 Conn. 249; ap-
plying to limitation of actions, Olcott v. R. Co., 20
N.Y. 210, 75 Am.Dec. 393; North Mo. R. Co. v.
Akers, 4 Kan. 453, 96 Am.Dec. 183; and concern-
ing the admissibility as a witness of a party in
his own behalf when the opposite party is a liv-
ing person, La Farge v. Ins. Co., 22 N.Y. 352. A.
corporation is also a person under a penal stat-
ute; U. S. v. Amedy, 11 Wheat. 392, 6 L.Ed. 502.
Corporations are "persons" as that word is used
in the first clause of the XIVth Amendment; Cov-
ington & L. Turnp. Co. v. Sandford, 17 S.Ct. 198,
164 U.S. 578, 41 L.Ed. 560; Smyth v. Ames, 18
S.Ct. 418, 169 U.S. 466, 42 L.Ed. 819; People v.
Fire Ass'n, 92 N.Y. 311, 44 Am.Rep. 380; U. S.
v. Supply Co., 30 S.Ct. 15, 215 U.S. 50, 54 L.Ed. 87;
contra, Central P. R. Co. v. Board, 60 Cal. 35.
But a corporation of another state is not a "per-
son" within the jurisdiction of the state until it
has complied with the conditions of admission to
do business in the state, Fire Ass'n of Phila. v.
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PERSON
New York, 7 S.Ct. 108, 119 U.S. 110, 30 L.Ed. 342;
and a statutory requirement of such conditions
is not in conflict with the XIVth Amendment;
Pembina Consol. S. M. & M. Co. v. Pennsylvania,
8 S.Ct. 737, 125 U.S. 181, 189, 31 L.Ed. 650.
It may include partnerships. In re Julian, D.
C.Pa., 22 F.Supp. 97, 99. Also firms. State ex
rel. Joseph R. Peebles Sons Co. v. State Board of
Pharmacy, 127 Ohio St. 513, 189 N.E. 447, 448.
"Persons" are of two kinds, natural and artificial. A
natural person is a human being. Artificial persons in-
clude a collection or succession of natural persons forming
a corporation; a collection of property to which the law
attributes the capacity of having rights and duties. The
latter class of artificial persons is recognized only to a
limited extent in our law. Examples are the estate of a
bankrupt or deceased person. Hogan v. Greenfield, 58
Wyo. 13, 122 P.2d 850, 853.
It has been held that when the word person is used in a
legislative act, natural persons will be intended unless
something appear in the context to show that it applies to
artificial persons, Blair v. Worley, 1 Scam., Ill., 178; Ap-
peal of Fox, 112 Pa. 337 ; 4 A. 149 ; but as a rule corpora-
tions will be considered persons within the statutes unless
the intention of the legislature is manifestly to exclude
them. Stribbling v. Bank, 5 Rand., Va., 132.
A county is a person in a legal sense, Lancaster Co. v.
Trimble, 34 Neb. 752, 52 N.W. 711; but a sovereign is not;
In re Fox, 52 N.Y. 535, 11 Am.Rep. 751; U. S. v. Fox, 94
U.S. 315, 24 L.Ed. 192, but contra within the meaning of a
statute, providing a penalty for 'the fraudulent alteration of
a public record with intent that any "person" be de-
frauded, Martin v. State, 24 Tex. 61; and within the
meaning of a covenant for quiet and peaceful possession
against all and every person or persons; Giddings v.
Holter, 19 Mont. 263, 48 P. 8. An Indian is a person, U.
S. v. Crook, 5 Dill. 459, Fed.Cas.No.14,891; and a slave was
so considered, in so far, as to be capable of committing a
riot .in conjunction with white men, State v. Thackam, 1
Bay, S.C., 358. The estate of a decedent is a person, Bill-
ings v. State, 107 Ind. 54, 6 N.E. 914, 7 N.E. 763, 57 Am.
Rep. 77; and where the statute makes the owner of a dog
liable for injuries to any person, it includes the property
of such person, Brewer v. Crosby, 11 Gray, Mass., 29; but
where the statute provided damages for the bite of a dog
which had previously bitten a person, it was held insuffi-
cient to show that the dog had previously bitten a goat,
[1896] 2 Q.B. 109; a dog will not be included in the word
in an act which authorizes a person to kill dogs running
at large, Heisrodt v. Hackett, 34 Mich. 283, 22 Am.Rep. 529.
Where the statute prohibited any person from pursuing
his usual vocation on the Lord's Day, it was held to apply
to a judge holding court. Bass v. Irvin, 49 Ga. 436.
A child en ventre sa mere is not a person. Dietrich v.
Northampton, 138 Mass. 14, 52 Am.Rep. 242; but an in-
fant is so considered; Madden v. Springfield, 131 Mass. 441.
In the United States bankrupty act of 1898, it is provided
that the word "persons" shall include corporations, except
where otherwise specified, and officers, partnerships, and
women, and, when used with reference to the commission
of acts which are therein forbidden, shall include persons
who are participants in the forbidden acts, and the agents,
officers, and members of the board of directors or trustees,
or their controlling bodies, of corporations. 11 U.S.C.A.
§ 1.
Persons are the subject of rights and duties; and, as a
subject of a right, the person is the object of the correla-
tive duty, and conversely. The subject of a right has been
called by Professor Holland, the person of inherence ; the
subject of a duty, the person of incidence. "Entitled" and
"bound" are the terms in common use in English and for
most purposes they are adequate. Every full citizen is a
person; other human beings, namely, subjects who are
not citizens, may be persons. But not every human being
is necessarily a person, for a person is capable of rights
and duties, and there may well be human beings having no
legal rights, as was the case with slaves in English law.• • *
A person is such, not because he is human, but because
rights and duties are ascribed to him. The person is the
legal subject or substance of which the rights and duties
are attributes. An individual human being considered as
having such attributes is what lawyers call a natural per-
son. Pollock, First Book of Jurispr. 110. Gray, Nature
and Sources of Law, ch. IL
PERSONA. Lat.
In the civil law. Character, in virtue of which
certain rights belong to a man and certain duties
are imposed upon him. Thus one man may unite
many characters, (personce,) as, for example, the
characters of father and son, of master and serv-
ant. Mackeld.Rom.Law, § 129.
In Ecclesiastical Law. The rector of a church
instituted and inducted, for his own life, was
called "persona mortalis;" and any collegiate or
conventual body, to whom the church was forever
appropriated, was termed "persona immortalis."
Jacob.
PERSONA CONJUNCTA 2EQUIPARATUR IN-
TERESSE PROPRIO. A personal connection
[literally, a united person, union with a person]
is equivalent to one's own interest; nearness of
blood is as good a consideration as one's own in-
terest. Bac.Max. 72, reg.
PERSONA DESIGNATA. A person pointed out
or described as an individual, as opposed to a
person ascertained as a member of a class, or as
filling a particular character.
PERSONA ECCLESL ZE. The parson or person-
ation of the church.
PERSONA EST HOMO CUM STATU QUODAM
CONSIDERATUS. A person is a man consider-
ed with reference to a certain status. Heinecc.
Elem. 1. 1, tit. 3, § 75.
PERSONA NON GRATA. In international law
and diplomatic usage, a person not acceptable (for
reasons peculiar to himself) to the court or gov-
ernment to which it is proposed to accredit him
in the character of an ambassador or minister.
PERSONA REGIS MERGITUR PERSONA DU-
CIS. Jenk.Cent. 160. The person of duke merges
in that of king.
PERSONA STANDI IN JUDICIO. Capacity of
standing in court or in judgment; capacity to be
a party to an action; capacity or ability to sue.
PERSONABLE. Having the rights and powers
of a person; able to hold or maintain a plea in
court; also capacity to take anything granted or
given.
PERSONIE VICE FUNGITUR MUNICIPIUM ET
DECURIA. Towns and boroughs act as if per-
sons. Warner v. Beers, 23 Wend., N.Y., 103, 144.
PERSONAL. Appertaining to the person; be-
longing to an individual; limited to the person;
having the nature or partaking of the qualities
of human beings, or of movable property. In re
Steimes' Estate, 150 Misc. 279, 270 N.Y.S. 339.
As to personal "Action," "Assets," "Chattels,"
"Contract," "Covenant," "Credit," "Demand,"
"Disability," "Franchise," "Injury," "Judgment,"
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PERTICULAS
"Knowledge," "Liberty," "Notice," "Obligation,"
"Property,"  "Replevin,"  "Representatives,"
"Rights," "Security," "Service," "Servitude,"
"Statute," "Tax," "Tithes," "Tort," and "Warran-
ty," see those titles.
PERSONAL Et tACTS. Articles associated with
person, as property having more or less intimate
relation to person of possessor; "effects" meaning
movable or chattel property of any kind. Ettling-
er v. Importers' & Exporters' Ins. Co. of New
York, 138 Misc. 743, 247 N.Y.S. 260, 261.
Term when used in will, includes only such tangible
property as attended the person, or such tangible property
as is worn or carried about the person. In re Sorensen's
Estate, 46 Cal.App.2d 35, 115 P.2d 241, 243.
PERSONAL LAW. As opposed to territorial law,
is the law applicable to persons not subject to
the law of the territory in which they reside.
It is only by permission ox the territorial law that per-
sonal law can exist at the present day; e. g., it applies to
British subjects resident in the Levant and in other Mo-
hammedan and barbarous countries. Under the Roman
Empire, it had a very wide application. Brown.
PERSONAL LIABILITY. The liability of the
stockholders in corporations, under certain stat-
utes, by which they may be held individually re-
sponsible for the debts of the corporation, either
to the extent of the par value of their, respective
holdings of stock, or to twice that amount, or
without limit, or otherwise, as the particular stat-
ute directs.
PERSONAL THINGS CANNOT BE DONE BY
ANOTHER. Finch, Law, b. 1, c. 3, n. 14.
PERSONAL THINGS CANNOT BE GRANTED
OVER. Finch, Law, b. 1, c. 3, n. 15.
PERSONAL THINGS DIE WITH THE PERSON.
Finch, Law, b. 1, c. 3, n. 16.
PERSONALIA PERSONAM SEQUUNTUR. Per-
sonal things follow the person. Flanders v. Cross,
10 Cush. (Mass.) 516.
PERSONALIS ACTIO. Lat.
In the civil law. A personal action; an action
against the person, (in personam.) Dig. 50, 16,
178, 2.
In old English law. A personal action. In this
sense, the term was borrowed from the civil law
by Bracton. The English form is constantly used
as the designation of one of the chief divisions of
civil actions.
PERSONALITER. In old English law. Person-
ally; in person.
PERSONALITY. In modern civil law. The in-
cidence of a law or statute upon persons, or that
quality which makes it a personal law rather
than a real law. "By the personality of laws,
foreign jurists generally mean all laws which con-
cern the condition, state, and capacity of persons."
Story, Conn. Laws, § 16.
PERSONALTY. Personal property; movable
property; chattels.
In old practice, an action was said to be in the
personalty, where it was brought against the
right person or the person against whom in law
it lay. Old Nat.Brev. 92; Cowell.
Quasi personalty. Things which are movable
in point of law, though fixed to things real, either
actually, as emblements, (fructus industriales,)
fixtures, etc.; or fictitiously, as chattels-real,
leases for years, etc.
PERSONATE. In criminal law. To assume the
person (character) of another, without his con-
sent or knowledge, in order to deceive others, and,
in such feigned character, to fraudulently do some
act or gain some advantage, to the harm or preju-
dice of the person counterfeited. 2 East, P.C.
1010. To pass one's self off as another having a
certain identity. Lane v. U. S., C.C.A.Ohio, 17 F.2d
923.
PERSONERO. In Spanish law. An attorney.
So called because he represents the person of
another, either in or out of court. Las Partidas,
pt. 3, tit. 5, 1. 1.
PERSONNE. Fr. A person. This term is ap-
plicable to men and women, or to either. Civ.Code
Lat. art. 3556, par. 23.
PERSPICUA VERA NON SUNT PROBANDA.
Co.Litt. 16. Plain truths need not be proved.
PERSUADE. To induce one by argument, en-
treaty, or expostulation into a determination, deci-
sion, conclusion, belief, or the like; to win over by
an appeal to one's reason and feelings, as into
doing or believing something; to bring oneself or
another to belief, certainty or conviction; to ar-
gue into an opinion or procedure. La Page v. U.
S., C.C.A.Minn., 156 A.L.R. 965, 146 F.2d 536, 538.
PERSUASION. The act of persuading; the act
of influencing the mind by arguments or reasons
offered, or by anything that moves the mind or
passions, or inclines the will to a determination.
Marx v. Threet, 131 Ala. 340, 30 So. 831. For
"Fair Persuasion," see that title.
PERTAIN. To belong or relate to, whether by
nature, appointment, or custom. People v. Chica-
go Theological Seminary, 174 Ill. 177, 51 N.E. 198.
PERTENENCIA. In Spanish law. The claim or
right which one has to the property in anything;
the territory which belongs to any one by way of
jurisdiction or property; that which is accessory
or consequent to a principal thing, and goes with
the ownership of it. Escriche, Castillero v. United
States, 2 Black. 17, 17 L.Ed. 360.
PERTICATA TERRIE. The fourth part of an
acre. Cowell.
PERTICULAS. A pittance; a small portion of
alms or victuals. Also certain poor scholars of
the Isle of Man. Cowell.
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PERTINENT
PERTINENT. Applicable; relevant. Evidence is
called "pertinent" when it is directed to the issue
or matters in dispute, and legitimately tends to
prove the allegations of the party offering it; oth-
erwise it is called "impertinent." A pertinent hy-
pothesis is one which, if sustained, would logically
influence the issue. Whitaker v. State, 106 Ala.
30, 17 So. 456; Vaughn v. State, 136 Tex.Cr.R.
455, 125 S.W.2d 568, 570.
PERTINENTS. In Scotch law. Appurtenances.
"Parts and pertinents" are formal words in old
deeds and charters. 1 Forb. Inst. pt. 2, pp. 112,
118.
PERTURBATION. In the English ecclesiastical
courts, a "suit for perturbation of seat" is the
technical name for an action growing out of a
disturbance or infringement of one's right to a
pew or seat in a church. 2 Phillim.Ecc.Law, 1813.
PERTURBATRIX. A woman who breaks the
peace.
PERVERSE VERDICT. A verdict whereby the
jury refuse to follow the direction of the judge
on a point of law. Callahan v. Chicago & N. W.
Ry. Co., 161 Wis. 288, 154 N.W. 449, 452.
PERVISE, PARVISE. In old English law. The
court or yard of the king's palace at Westminster.
Also an afternoon exercise or moot for the in-
struction of students. Cowell; Blount.
PESA. A weight of two hundred and fifty-six
pounds. Cowell.
PESAGE. In England. A toll charged for weigh-
ing avoirdupois goods other than wool. 2 Chit.
Com.Law, 16.
PESQUISIDOR. In Spanish law. Coroner.
White, New Recop. b. 1, tit. 1, § 3.
PESSIMI EXEMPLI. Lat. Of the worst example.
PESSONA. Mast of oaks, etc., or money taken
for mast, or feeding hogs. Cowell.
PESSURABLE WARES. Merchandise which
takes up a good deal of room in a ship. Cowell.
PETENS. Lat. In old English law. A demand-
ant; the plaintiff in a real action. Bract. fols.
102, 106b.
PETER-PENCE. An ancient levy or tax of a
penny on each house throughout England, paid to
the pope. It was called "Peter-pence," because
collected on the day of St. Peter, ad vincula; by
the Saxons it was called "Romefeoh," "Rome-
scot," and "Rome-pennying," because collected
and sent to Rome; and, lastly, it was called
"hearth money," because every dwelling-house
was liable to it, and every religious house, the ab-
bey of St. Albans alone excepted. Wharton.
PETIT. Fr. Small; minor; inconsiderable.
Used in several compounds, and sometimes writ-
ten "petty." People v. Sprado, 72 Cal.App. 582,
237 P. 1087, 1089.
As to petit "Jury," "Larceny," "Sergeanty," and
"Treason," see those titles.
PETIT CAPE. A judicial writ, issued in the old
actions for the recovery of land, requiring the
sheriff to take possession of the estate, where the
tenant, after having appeared in answer to the
summons, made default in a subsequent stage of
the proceedings.
PETITE ASSIZE. Used in contradistinction from
the grand assize, which was a jury to decide on
questions of property. Petite assize, a jury to de-
cide on questions of possession. Britt. c. 42;
Glan. lib. 2, cc. 6, 7.
PETITIO. Lat.
In the civil law. The plaintiff's statement of
his cause of action in an action in rem. Calvin.
In old English law. Petition or demand; the
count in a real action; the form of words in
which a title to land was stated by the demand-
ant, and which commenced with the word "peto."
1 Reeve, Eng.Law, 176.
PETITIO PRINCIPII. In logic. Begging the
question, which is the taking of a thing for true
or for granted, and drawing conclusions from it as
such, when it is really dubious, perhaps false, or
at least wants to be proved, before any inferences
ought to be drawn from it.
PETITION. A written address, embodying an ap-
plication or prayer from the person or persons
preferring it, to the power, body, or person to
whom it is presented, for the exercise of his or
their authority in the redress of some wrong, or
the grant of some favor, privilege, or license.
Enderson v. Hildenbrand, 52 N.D. 533, 204 N.W.
356; Benton Coal Mining Co. v. Industrial Com-
mission, 321 Ill. 208, 151 N.E. 520, 522; In re L.
M. Axle Co., C.C.A.Ohio, 3 F.2d 581, 582; State
v. American Sugar Refining Co., 138 'La. 1005, 71
So. 137, 140.
In practice. An application made to a court ex-
parte, or where there are no parties in opposition,
praying for the exercise of the judicial powers of
the court in relation to some matter which is not
the subject for a suit or action, or for authority
to do some act which requires the sanction of the
court; as for the appointment of a guardian, for
leave to sell trust property, etc.
The word "petition" is generally used in judicial pro--
ceedings to describe an application in writing, in contra-
distinction to a motion, which may be viva voce. Bergen
v. Jones, 4 Metc., Mass., 371. The principal distinction
between motions and petitions lies in the fact that motions,
though usually made in writing, may sometimes be made-
orally, while a petition is always in writing. So, also,
motions can usually be made only by a party to the record,
while petitions may in some cases be presented by persons
not parties. Gibbs v. Ewing, 94 Fla. 236, 113 So. 730, 735.
In the practice of some of the states, the word "petition"
is adopted as the name of that initiatory pleading in an
action which is elsewhere called a "declaration" or "com-
plaint."
In equity practice. An application in writing
for an order of the court, stating the circumstanc-
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,es upon which it is founded; a proceeding resort-
ed to whenever the nature of the application to
the court requires a fuller statement than can be
conveniently made in a notice of motion. 1 Barb.
Ch.Pr. 578.
PETITION DE DROIT. L. Fr. In English prac-
tice. A petition of right; a form of proceeding to
obtain restitution from the crown of either real
or personal property, being of use where the
crown is in possession of any hereditaments or
chattels; and the petitioner suggests such a right
as controverts the title of the crown, grounded on
facts disclosed in•the petition itself. 3 Bl.Comm.
256.
PETITION IN BANKRUPTCY. A paper filed in
a court of bankruptcy, or with the clerk, by a debt-
or praying for the benefits of the bankruptcy act,
or by creditors alleging the commission of an act
of bankruptcy by their debtor and praying an ad-
judication of bankruptcy against him.
PETITION OF RIGHT. In English law. A pro-
ceeding in chancery by which a subject may re-
cover property in the possession of the king. See
Petition de Droit.
PETITION OF RIGHTS. A parliamentary decla-
ration of the liberties of the people, assented to
by King Charles I, in 1629. It is to be distin-
guished from the bill of rights, (1689), which has
passed into a permanent constitutional statute.
Brown.
PETITIONER. One who presents a petition to
a court, officer, or legislative body. In legal pro-
ceedings begun by petition, the person against
whom action or relief is prayed, or who opposes
the prayer of the petition, is called the "respond-
ent."
PETITIONING CREDITOR. The creditor at
whose instance an adjudication of bankruptcy is
made against a bankrupt.
PETITORY ACTION. A droitural action; that
is, one in which the plaintiff seeks to establish
and enforce, by an appropriate legal proceeding,
his right of property, or his title, to the subject-
matter in dispute; as distinguished from a pos-
sessory action, where the right to the possession
is the point in litigation, and not the mere right
of property. The term is chiefly used in admiral-
ty. 1 Kent, Comm. 371; The Tilton, 5 Mason,
465, Fed.Cas.No.14,054.
In Louisiana, an action brought by an alleged owner out
of possession against one having possession to determine
ownership, in which plaintiff must recover on strength of
his own title, not on weakness of defendant's title. Saucier
v. Crichton, C.C.A.La., 147 F.2d 430, 433.
PHLEBITIS
PETRONIAN LAW. See Lex.Petronia.
PETTIFOGGER. A lawyer who is employed in
a small or mean business, or who carries on a dis-
reputable business by unprincipled or dishonor-
able means.
PETTIFOGGING SHYSTER. This "combination
of epithets every lawyer and citizen knows belongs
to none but unscrupulous practitioners who dis-
grace their profession by doing mean work, and
resort to sharp practice to do it." Bailey v. Kala-
mazoo Pub. Co., 40 Mich. 251, 256.
PETTY. Small, minor, of less or inconsiderable
importance. The English form of "petit," and
sometimes used instead of that word in such
compounds as "petty jury," "petty larceny," and
"petty treason." See Petit.
As to petty "Average," "Constable," and "Ses-
sions," see those titles.
PETTY BAG OFFICE. In English law. An of-
fice in the court of chancery, for suits against
attorneys and officers of the court, and for proc-
ess and proceedings by extent on statutes, re-
cognizances, ad quod damnum, and the like.
Termes de la Ley.
PETTY OFFICERS. Inferior officers in the naval
service, of various ranks and kinds, correspond-
ing to the non-commissioned officers in the army.
U. S. v. Fuller, 16 S.Ct. 386, 160 U.S. 593, 40 L.Ed.
549.
PEW. An inclosed seat in a church. O'Hear v.
De Goesbriand, 33 Vt. 606, 80 Am.Dec. 653; Trus-
tees of Third Presbyterian Congregation v. And-
russ, 21 N.J.Law, 328; Gay v. Baker, 17 Mass. 435,
9 Am.Dec. 159.
PHARMACIST. One skilled in pharmacy; drug-
gist. Webster.
Registered Pharmacist. One who has qualified
by training, education, and experience and is so
certified. Reppert v. Utterback, 206 Iowa 314, 217
N.W. 545.
PHARMACY. The science and art of preserving
drugs and of compounding and dispensing medi-
cines according to prescriptions of physicians;
the occupation of an apothecary or pharmaceuti-
cal chemist. Ballard v. Goldsby, 142 La. 15, 76
So. 219. Ex parte Sarros, 116 Fla. 86, 156 So.
396. Place where medicines are compounded
or dispensed; a drug store; an apothecary shop.
Carroll Perfumers v. State, Ind., 7 N.E.2d 970, 972.
PHAROS. A watch-tower, light-house, or sea-
mark.
PHLEBITIS. In medical jurisprudence. An in-
flammation of the veins, which may originate in
septicoemia (bacterial blood-poisoning) or pycemia
(poisoning from pus), and is capable of being
transmitted to other tissues, as, the brain or the
muscular tissue of the heart. In the latter case,
an inflammation of the heart is produced which is
In Scotch law. Actions in which damages are
sought.
PETO. Lat. In Roman law. I request. A com-
mon word by which a fideicommissum, or trust,
was created in a will. Inst. 2, 24, 3.
PETRA. A stone weight. Cowell.
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PHOTOGRAPHER
called "endocarditis" and which may result fatal-
ly. Succession of Bidwell, 52 La.Ann. 744, 27 So.
281.
PHOTOGRAPHER. An artist, not an artisan.
A photographer is not a mechanic and his ap-
paratus is not exempt as the tools of a mechanic.
Story v. Walker, 79 Tenn. (11 Lea) 515, 517, 47
Am.Rep. 305. See, also, City of New Orleans v.
Robira, 8 So. 402, 403, 42 La.Ann. 1098, 11 L.R.A.
141; Mullinix v. State, 60 S.W. 768, 42 Tex.Cr.R.
526.
PHOTOGRAPHY. The science which relates to
the action of light on sensitive bodies in the pro-
duction of pictures; the fixation of images and
the like. Frankel v. German Tyrolean Alps, 97
S.W. 961, 962, 121 Mo.App. 51, citing Webst. Dict.
PHYLASIST. A jailer.
PHYSICAL. Relating or pertaining to the body,
as distinguished from the mind or soul or the
emotions; material, substantive, having an objec-
tive existence, as distinguished from imaginary
or fictitious;, real, having relation to facts, as
distinguished from moral or constructive.
PHYSICAL DEPRECIATION. Reduction in value
of structure due to actual wear and tear or phy-
sical deterioration. People ex rel. Union Bag &
Paper Corporation v. Fitzgerald, 166 Misc. 237,
2 N.Y.S'.2d 290, 295.
PHYSICAL DISABILITY. See Disability.
PHYSICAL FACT. In the law of evidence. A
fact having a physical existence, as distinguished
from a mere conception of the mind; one which
is visible, audible, or palpable; such as the sound
of a pistol shot, a man running, impressions of
human feet on the ground. Burrill, Circ. Ev. 130.
A fact considered to have its seat in some in-
animate being, or, if in an animate being, by vir-
tue, not of the qualities by which it is constituted
animate, but of those which it has in common
with the class of inanimate beings. 1 Benth. Jud.
Ev. 45.
PHYSICAL FORCE. Force applied to the body;
actual violence. State v. Wells, 31 Conn. 212.
PHYSICAL IMPOSSIBILITY. Practical impos-
sibility according to the knowledge of the day.
State v. Hillis, 79 Ind.App. 599, 124 N.E. 515, 516.
PHYSICAL INCAPACITY. In the law of mar-
riage and divorce, impotence, inability to accom-
plish sexual coition, arising from incurable phy-
sical imperfection or malformation. Anonymous,
89 Ala. 291, 7 So. 100, 7 L.R.A. 425, 18 Am.St.Rep.
116; Franke v. Franke, Cal., 31 P. 574, 18 L.R.A.
375.
PHYSICAL INJURY. Bodily harm or hurt, ex-
cluding mental distress, fright, or emotional dis-
turbance. Deming v. Chicago, etc., R. Co., 80 Mo.
App! 157.
PHYSICAL NECESSITY. A condition in which
a person is absolutely compelled to act in a par-
ticular way by overwhelming superior force; as
distinguished from moral necessity, which arises
where there is a duty incumbent upon a rational
being to perform, which he ought at the time to
perform. The Fortitude, 3 Sumn. 248, Fed.Cas.
No. 4,953.
PHYSICIAN. A practitioner of medicine; a per-
son duly authorized or licensed to treat diseases;
one lawfully engaged in the practice of medicine,
without reference to any particular school. State
v. Beck, 21 R.I. 288, 43 A. 366, 45 L.R.A. 269;
Raynor v. State, 62 Wis. 289, 22 N.W. 430; Nelson
v. State Board of Health, 108 Ky. 769, 57 S.W.
501, 50 L.R.A. 383; Millsap v. Alderson, 63 Cal.
App. 518, 219 P. 469, 472. But see: Isaacson v.
Wisconsin Casualty Ass'n, 187 Wis. 25, 203 N.W.
918, 920; Le Grand v. Security Ben. Ass'n, 210
Mo.App. 700, 240 S.W. 852, 853.
PHYSICIAN'S PRESCRIPTION. A physician's
order for morphine issued to a habitual user, not
in the course of professional treatment for a cure,
but to keep him comfortable by maintaining his
customary use, is not a "physician's prescription"
within 26 U.S.C.A. § 2554 (c) (2). Webb v. U. S.,
39 S.Ct. 217, 218, 249 U.S. 96, 63 L.Ed. 497.
PHYSIOTHERAPY. Treatment of disease by phy-
sical remedies rather than drugs. People v. Mari,
260 N.Y. 383, 183 N.E. 858, 859.
PIA FRAUS. Lat. A pious fraud; a subterfuge
or evasion considered morally justifiable on ac-
count of the ends sought to be promoted. Par-
ticularly applied to an evasion or disregard of the
laws in the interests of religion or religious insti-
tutions, such as circumventing the statutes of
mortmain.
PIACLE. An obsolete term for an enormous
crime.
PICAROON. A robber; a plunderer.
PICK OF LAND. A narrow slip of land running
into a corner.
PICKAGE. Money paid at fairs for breaking
ground for booths.
PICKERY. In Scotch law. Petty theft; stealing
of trifles, punishable arbitrarily. Bell.
PICKET. A person posted by a labor organiza-
tion at an approach to a place of work affected
by strike to ascertain the workmen going and
coming, and to persuade or otherwise influence
them to quit working there.  Evening Times
Printing & Publishing Co. v. American Newspaper
Guild, 124 N.J.Eq. 71, 199 A. 598, 603.
PICKETING, by members of a trade union on
strike, consists in posting members at all the
approaches to the works struck against, for the
purpose of observing and reporting the workmen
going to or coming from the works, and of using
such influence as may be in their power to pre-
vent the workmen from accepting work there.
See Beck v. Railway Teamsters' Protective Union,
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PILOT
118 Mich. 497, 77 N.W. 13, 42 L.R.A. 407, 74 Am.
St.Rep. 421; Cumberland Glass Mfg. Co. v. Glass
Bottle Blowers' Ass'n, 59 N.J.Eq. 49, 46 A. 208.
Peaceable picketing, in which laboring men and
women have right to participate during labor dis-
pute, means tranquil conduct, conduct devoid of
noise or tumult, the absence of a quarrelsome
demeanor, and a course of conduct that does not
violate or disturb the public peace. Lilly Dache,
Inc., v. Rose, 28 N.Y.S.2d 303, 305; Ex parte Bell,
37 Cal.App.2d 582, 100 P.2d 339, 340. It connotes
peaceable methods of presenting a cause to the
public in the vicinity of the employer's premises.
Music Hall Theatre v. Moving Picture Mach. Op-
erators Local No. 165, 249 Ky. 639, 61 S.W.2d 283.
Unlawful picketing. See that title.
PICKLE, PYCLE, or PIGHTEL. A small parcel
of land inclosed with a hedge, which, in some
countries, is called a "pingle." Enc. Lond.
PICK-LOCK. An instrument by which locks are
opened without a key.
PICKPOCKET. A thief who secretly steals mon-
ey or other property from the person of another.
PIECE WORK. Work done or paid for by the
piece or quantity. Calascibett v. Highway Freight
Co., 18 N.J.Misc. 144, 11 A.2d 408, 409.
PIEPOUDRE. See Court of Piepoudre.
PIER. A structure extending from the solid
land out into the water of a river, lake, harbor,
etc., to afford convenient passage for persons and
property to and from vessels along the sides of
the pier. Seabright v. Allgor, 69 N.J.Law, 641, 56
A. 287.
PIERAGE. The duty for maintaining piers and
harbors.
PIGNORATIO. Lat. In the civil law. The con-
tract of pledge; and also the obligation of such
contract. L. 9 D. de pignor. Sealing up (obsig-
natio). A shutting up of an animal caught in
one's field and keeping it till the expenses and
damage have been paid by its master. New
Decis. 1, 34, 13.
PIGNORATITIA ACTIO. Lat. In the civil law.
An action of pledge, or founded on a pledge,
which was either directa, for the debtor, after
payment of the debt, or contraria, for the credi-
tor. Heinecc. Elem. lib. 3, tit. 13, §§ 824-826.
PIGNORATIVE CONTRACT. In the civil law. A
contract of pledge, hypothecation, or mortgage of
realty.
PIGNORIS CAPIO. Lat. In Roman law. This
was the name of one of the legis actiones. It was
employed only in certain particular kinds of pe-
cuniary cases, and consisted in that the creditor,
without preliminary suit and without the co-op-
eration of the magistrate, by reciting a prescrib-
ed formula, took an article of property from the
debtor to be treated as a pledge or security. The
proceeding bears a marked analogy to distress
at common law. Mackeld. Rom. Law, § 203;
Gaius, bk. 4, §§ 26-29.
PIGNUS. Lat. In the civil law. A pledge or
pawn; a delivery of a thing to a creditor, as se-
curity for a debt. Also a thing delivered to a
creditor as security for a debt. Hanes v. Shapiro
& Smith, 168 N.C. 24, 84 S.E. 33, 35.
PILA. In old English law. That side of coined
money which was called "pile," because it was the
side on which there was an impression of a
church built on piles. Fleta, lib. 1, c. 39.
PILETTUS. In the' ancient forest laws. An ar-
row which had a round knob a little above the
head, to hinder it from going far into the mark.
Cowell.
PILFER. To pilfer, in the plain and popular
sense, means to steal. To charge another with
pilfering is to charge him with stealing, and is
slander. Becket v. Sterrett, 4 Blackf. (Ind.) 499.
PILFERAGE. Some form of stealing. Felgar v.
Home Ins. Co. of New York, 207 Ill.App: 492;
Ledvinka v. Home Ins. Co. of New York, 139 Md.
434, 115 A. 596, 598, 19 A.L.R. 167. Petty larceny.
Stuht v. Maryland Motor Car Ins. Co., 90 Wash.
576, 156 P. 557, 558; Hartford Fire Ins. Co. v.
Wimbish, 12 Ga.App. 712, 78 S.E. 265, 266; Illinois
Automobile Ins. Exch. v. Southern Motor Sales
Co., 207 Ala. 265, 92 So. 429, 430, 24 A.L.R. 734.
The word "pilferage," in a policy against theft of trunks
of merchandise in transit, excluding all pilferage, must be
construed as having been used in the sense of filching; of
taking a small part only, rather than the whole; of steal-
ing privily. Tamarin v. Insurance Co. of North America,
68 Pa.Super.Ct. 614, 615; Goldman v. Insurance Co. of
North America, 185 N.Y.S. 210, 211, 194 App.Div. 266.
PILFERER. One who steals petty things, or a
small part of a thing.
PILLAGE. Plunder; the forcible taking of pri-
vate property by an invading or conquering army
from the enemy's subjects. American Ins. Co, v.
Bryan, 26 Wend. (N. Y.) 573, 37 Am.Dec. 278.
PILLAR-AND-STALL SYSTEM. In mining of
limestone. Beginning at mine opening, cutting
tunnels or entries in the limestone ledge and tak-
ing off rooms therefrom leaving limestone roof
of varying thickness, theoretically sufficient to
sustain the hundred foot overburden when pillars
of sufficient size are allowed to remain and when
boundary is reached such part of pillars and roof
is taken as is practicable as the work recedes.
Marquette Cement Mining Co. v. Oglesby Coal
Co., D.C.Ill., 253 F. 107, 109.
PILLORY. A frame erected on a pillar, and made
with holes and movable boards, through which
the heads and hands of criminals were put.
PILOT. A particular officer serving on board
a ship during the course of a voyage, and having
the charge of the helm and the ship's route; or
a person taken on board at any particular place
for the purpose of conducting a ship through a
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PILOT
river, road, or channel, or from or into a port.
State v. Turner, 34 Or. 173, 55 P. 92; State v.
Jones, 16 Fla. 306; The Maren Lee, C.C.A.N.Y.,
278 F. 918, 920.
Branch pilot. One possessing a license, com-
mission, or certificate of competency issued by the
proper authority and usually after an examina-
tion. U. S. v. Forbes, 25 Fed.Cas. 1141; Petterson
v. State, Tex.Cr.R., 58 S.W. 100; State v. Follett, 33
La.Ann. 228; Davis v Heide & Co., 161 N.C. 476,
77 S.E. 691, 693.
PILOTAGE. The navigation of a vessel by a
pilot; the duty of a pilot. The charge or com-
pensation allowed for piloting a vessel.
PILOTAGE AUTHORITIES. In English law.
Boards of commissioners appointed and author-
ized for the regulation and appointment of pilots,
each board having jurisdiction within a prescrib-
ed district.
PIMP. One who provides for others the means
of gratifying lust; a procurer; a panderer. The
word pimp is not a technical one, nor has it ac-
quired any peculiar or appropriate meaning in
the law; and is therefore to be construed and
understood according to the common and ap-
proved usage of the language; People v. Gastro,
75 Mich. 127, 42 N.W. 937, where the court dis-
approved the action of the judge at nisi prius who
defined the term to mean a man who has inter-
course with a loose woman, who usually is sup-
porting him. It is frequently defined by ordi-
nance or statute. Fleming v. City of Atlanta, 21
Ga.App. 797, 95 S.E. 271; Powell v. State, 108
Miss. 497, 66 So. 979, 980; People v. Simpson, 79
Cal.App. 555, 250 P. 403, 404; State v. Thibodeaux,
136 La. 935, 67 So. 973, 974.
PIMP-TENURE. A very singular and odious
kind of tenure mentioned by the old writers.
Wilhelmus Hoppeshort tenet dimidiam virgatam
terrce per servitium custodiendi sex damisellas,
scil. meretrices ad usum domini regis. Whar-
ton.
PINCERNA. In old English law. Butler; the
king's butler, whose office it was to select out of
the cargo of every vessel laden with wine, one
cask at the prow and another at the stern, for the
king's use. Fleta, lib. 2, c. 22.
PIN-MONEY. An allowance set apart by a hus-
band for the personal expenses of his wife, for
her dress and pocket money.
PINNAGE. Poundage of cattle.
PINNER. A pounder of cattle; a poundkeeper.
PINT. A liquid measure of half a quart, or the
eighth part of a gallon.
PIONEER PATENT. See Patent.
PIOUS USES. See Charitable Uses.
PIPE. A roll in the exchequer; otherwise called
the "great roll." A liquid measure containing two
hogsheads.
PIPE LINE. A connected series of pipes for the
transportation of oil, gas, or water.
PIPE ROLLS. These were the Great Rolls of
the Exchequer and contained the account of the
king's profits and rents in all the counties of Eng-
land. They exist in a continuous series (676 rolls)
from 1156 to 1833 (except 1216 and 1403). The
Chancellor's Roll from 1255 to 1833 is a duplicate
of the Pipe Rolls. A single roll of Henry I, but
not complete, is extant. 2 Holdsw. Hist.E.L. 129.
The Pipe Rolls are our earliest records; id. 138.
They are said to be most instructive as to legal
rules and institutions; Brunner, 2 Sel.Essays in
Anglo-Amer. L. H. 24.
PIRACY. In criminal law. A robbery or forci-
ble depredation on the high seas, without lawful
authority, done animo furandi, in the spirit and
intention of universal hostility. United States v.
Palmer, 3 Wheat. 610, 4 L.Ed. 471. This is the
definition of this offense by the law of nations.
1 Kent, Comm. 183. And see Talbot v. Janson, 3
Dall. 152, 1 L.Ed. 540; U. S. v. The Ambrose
Light, D.C.N.Y., 25 F. 408; Davison v. Seal-skins,
7 Fed.Cas. 192.
There is a distinction between the offense of piracy, as
known to the law of nations, which is justiciable anywhere,
and offenses created by statutes of particular nations, cog-
nizable only before the municipal tribunals of such nations.
Dole v. Insurance Co., 2 Cliff. 394, 418, Fed.Cas.No.3,966.
The term is also applied to the illicit reprinting
or reproduction of a copyrighted book or print or
to unlawful plagiarism from it.
PIRATA EST HOSTIS HUMAN! GENERIS. 3
Inst. 113. A pirate is an enemy of the human
race.
PIRATE. A person who lives by piracy; one
guilty of the crime of piracy. A sea-robber, who,
to enrich himself, by subtlety or open force, set-
teth upon merchants and others trading by sea, de-
spoiling them of their loading, and sometimes be-
reaving them of life and sinking their ships.
Ridley, Civil & Ecc.Law, pt. 2, c. 1, § 3. One who
acts solely on his own authority, without any com-
mission or authority from a sovereign state, seiz-
ing by force, and appropriating to himself without
discrimination, every vessel he meets with. Rob-
bery on the high seas is piracy; but to consti-
tute the offense the taking must be felonious.
Consequently the quo animo may be inquired in-
to. Davison v. Seal-skins, 2 Paine, 324, Fed.Cas.
No.3,661.
Pirates are common sea-rovers, without any fixed place
of residence, who acknowledge no sovereign and no law,
and support themselves by pillage and depredations at sea;
but there are instances wherein the word "pirata" has
been formerly taken for a sea-captain. Spelman.
PIRATICALLY., A technical word which must
always be used in an indictment for piracy. 3
Inst. 112.
PISCARY. The right of fishing. Thus, common
of piscary is the right of fishing in waters belong-
ing to another person.
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PLACER
PISTAREEN. A small Spanish coin. It is not
made current by the laws of the United States.
United States v. Gardner, 10 Pet. 618, 9 L.Ed. 556.
PISTOL. A short firearm, intended to be aimed
and fired from one hand. Campbell v. Common-
wealth, 295 Ky. 511, 174 S.W.2d 778, 779.
PIT. In old Scotch law. An excavation or cavity
in the earth in which women who were under sen-
tence of death were drowned.
A cavity or hole in the ground, natural or arti-
ficial; a large hole from which some mineral de-
posit is dug or quarried, as a gravel pit, a stone
pit. Walker v. Dwelle, 187 Iowa, 1384, 175 N.W.
964.
PIT AND GALLOWS. In Scotch law. A privil-
ege of inflicting capital punishment for theft,
given by King Malcolm, by which a woman could
be drowned in a pit, (fossa,) or a man hanged on
a gallows, (furca.) Bell.
PITCHING—PENCE. In old English law. Mon-
ey, commonly a penny, paid for pitching or set-
ting down every bag of corn or pack of goods in
a fair or market. Cowell.
PITTANCE. A slight repast or refection of fish
or flesh more than the common allowance; and
the pittancer was the officer who distributed this
at certain appointed festivals. Cowell.
PIX. A mode of testing coin. The ascertaining
whether coin is of the proper standard is in Eng-
land called "pixing" it; and there are occasions
on which resort is had for this purpose to an an-
cient mode of inquisition called the "trial of the
pix," before a jury of members of the Goldsmiths'
Company. 2 Steph.Comm. 540, note.
PIX JURY. A jury consisting of the members of
the corporation of the goldsmiths of the city of
London, assembled upon an inquisition of very an-
cient date, called the "trial of the pix." Such juries
were abolished in 1930.
PLACARD. An edict; a declaration; a mani-
festo. Also an advertisement or public notifica-
tion.
PLACE. An old form of the word "pleas." Thus
the "Court of Common Pleas" was sometimes call-
ed the "Court of Common Place."
PLACE. This word is a very indefinite term. It is
applied to any locality, limited by boundaries, how-
ever large or however small. It may be used to
designate a country, state, county, town, or a very
small portion of a town. The extent of the local-
ity designated by it must generally be determined
by the connection in which it is used. Robinson
v. State, 143 Miss. 247, 108 So. 903, 905; Hammell
v. State, 198 Ind. 45, 152 N.E. 161, 163; State v.
Cahalan, 204 Iowa, 410, 214 N.W. 612, 613. In its
primary and most general sense means locality,
situation, or site, and it is also used to designate
an occupied situation or building. Burns v. Mc-
Daniel, Fla., 140 So. 314, 316.
PLACE LANDS. Lands granted in aid of a rail-
road company which are within certain limits on
each side of the road, and which become instant-
ly fixed by the adoption of the line of the road.
There is a well-defined difference between place
lands and "indemnity lands." See Indemnity.
See Jackson v. La Moure County, 1 N.D. 238, 46
N.W. 449.
PLACE OF CONTRACT. The place (country or
state) in which a contract is made, and whose law
must determine questions affecting the execu-
tion, validity, and construction of the contract.
Scudder v. Union Nat. Bank, 91 U.S. 412, 23 L.Ed.
245.
PLACE OF DELIVERY. The place where deliv-
ery is to be made of goods sold. If no place is
specified in the contract, the articles sold must,
in general, be delivered at the place where they
are at the time of the sale. Hatch v. Standard Oil
Co., 100 U.S. 134, 25 L.Ed. 554.
PLACE OF EMPLOYMENT. Within the safe
place statutes, a place where active work, either
temporary or permanent, is being conducted in
connection with a business for profit, that is,
where some process or operation related to such
industry, trade or business is carried on and where
any person is directly or indirectly employed by
another. Padley v. Village of Lodi, 233 Wis. 661,
290 N.W. 136, 137.
PLACE WHERE. A phrase used in the older re-
ports, being a literal translation of locus in quo
(q. v.).
PLACEMAN. One who exercises a public em-
ployment, or fills a public station.
The distinction between an officer and a placeman is that
the former must take an oath of office, the latter not.
Worthy v. Barrett, 63 N.C. 199.
PLACER. In mining law. A superficial deposit
of sand, gravel, or disintegrated rock, carrying one
or more of the precious metals, along the course
or under the bed of a water-course, ancient or
current, or along the shore of the sea. Under the
acts of congress, the term includes all forms of
mineral deposits, except veins of quartz or other
rock in place. 30 U.S.C.A. § 35. Montana Coal
& Coke Co. v. Livingston, 21 Mont. 59, 52 P. 780;
Gregory v. Pershbaker, 73 Cal. 109, 14 P. 401;
Duffield v. San Francisco Chemical Co., C.C.A.
Idaho, 205 F. 480, 484; San Francisco Chemical
Co. v. Duffield, C.C.A.Wyo., 201 F. 830, 835.
PLACER CLAIM. A mining claim located on the
public domain for the purpose of placer mining,
that is, ground within the defined boundaries
which contains mineral in its earth, sand, or
gravel; ground which includes valuable deposits
not "in place," that is, not fixed in rock, or which
are in a loose state. U. S. v. Iron Silver Min. Co.,
9 S.Ct. 195, 128 U.S. 673, 32 L.Ed. 571; Clipper Min.
Co. v. Eli Min. Co., 24 S.Ct. 632,. 194 U.S. 220, 48
L.Ed. 944; U. S. v. Ohio Oil Co., D.C.Wyo., 240 F.
996, 999; Duffield v. San Francisco Chemical Co.,
C.C.A.Idaho, 205 F. 480, 483.
PLACER LOCATION. A placer claim located
and occupied on the public domain.
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PLACET
PLACET. (Fr.) The name of a document in
French practice requesting an audience of the
court. Outside of Paris the request is made oral-
ly, in Paris the avouë of the plaintiff sends his
request to the clerk of the court who puts the
case on the list.
PLACIT, or PLACITUM. Decree; determination.
PLACITA. See Placitum.
PLACITA COMMUNIA. Common pleas. All civ-
il actions between subject and subject. 3 Bl.
Comm. 38, 40.
PLACITA CORONAE. Pleas of the crown. All
trials for crimes and misdemeanors, wherein the
king is plaintiff, on behalf of the people. 3 Bl.
Comm. 40; Cowell, Plea.
PLACITA DE TRANSGRESSIONE CONTRA PA-
CEM REGIS, IN REGNO ANGLIZE VI ET ARM-
IS FACTA, SECUNDUM LEGEM ET CONSUE-
TUDINEM ANGLIZE SINE BREVI REGIS PLA-
CITARI NON DEBENT. 2 Inst. 311. Pleas of
trespass against the peace of the king in the
kingdom of England, made with force and arms,
ought not, by the law and custom of England, to
be pleaded without the king's writ.
PLACITA JURIS. Pleas or rules of law; "par-
ticular and positive learnings of laws;" "grounds
and positive learnings received with the law and
sP t down;" as distinguished from maxims or the
formulated conclusions of legal reason. Bac.Max.
pref., and reg. 12.
PLACITA NEGATIVA DUO EXITUM NON FA-
CIUNT. Two negative pleas do not form an is-
sue. Lofft, 415.
PLACITABILE. In old English law. Pleadable.
Spelman.
PLACITAMENTUM. In old records. The plead-
ing of a cause. Spelman.
PLACITARE. To plead.
PLACITATOR. In old records. A pleader. Cow-
ell; Spelman.
PLACITORY. Relating to pleas or pleading.
PLACITUM. In civil law. An agreement of par-
ties; that which is their pleasure to arrange be-
tween them.
An imperial ordinance or constitution; literal-
ly, the prince's pleasure. Inst. 1, 2, 6.
A judicial decision; the judgment, decree, or
sentence of a court. Calvin.
In old English law. A public assembly at which
the king presided, and which comprised men of
all degrees, met for consultation about the great
affairs of the kingdom. Cowell.
A court; a judicial tribunal; a lord's court.
Placita was the style or title of the courts at
the beginning of the old nisi prius record.
A suit or cause in court; a judicial proceeding;
a trial. Placita were divided into placita coronce
(crown cases or pleas of the crown, 4. e., crim-
inal actions) and placita communia, (common
cases or common pleas, i. e., private civil actions.)
A fine, mulct, or pecuniary punishment.
A pleading or plea. In this sense, the term was
not confined to the defendant's answer to the
declaration, but included all the pleadings in the
cause, being nomen generalissimum. 1 Saund.
388, n. 6.
In the old reports and abridgments, "placitum"
was the name of a paragraph or subdivision of
a title or page where the point decided in a cause
was set out separately. It is commonly abbrevi-
ated, "pl."
PLACITUM ALIUD PERSONALE, ALIUD RE-
ALE, ALIUD MIXTUM. Co.Litt. 284. Pleas
[i. e., actions] are personal, real, and mixed.
PLACITUM FRACTUM. A day past or lost to
the defendant. 1 Hen. I. c. 59.
PLACITUM NOMINATUM. The day appointed
for a criminal to appear and plead and make his
defense. Cowell.
PLAGIARISM. The act of appropriating the lit-
erary composition of another, or parts or pas
sages of his writings, or the ideas or language of
the same, and passing them off as the product of
one's own mind.
To be liable for "plagiarism" it is not necessary to ex-
actly duplicate another's literary work, it being sufficient
if unfair use of such work is made by lifting of substantial
portion thereof, but even an exact counter-part of another's
work does not constitute "plagiarism" if such counterpart
was arrived at independently. O'Rourke v. RKO Radio
Pictures, D.C.Mass., 44 F.Supp. 480, 482, 483.
PLAGIARIST, or PLAGIARY. One who publish-
es the thoughts and writings of another as his.
own.
PLAGIARIUS. Lat. In the civil law. A man-
stealer; a kidnapper. Dig. 48, 15, 1; 4 Bl.Comm.
219.
PLAGIUM. Lat. In the civil law. Man-stealing;
kidnapping. The offense of enticing away and
stealing men, children, and slaves. Calvin. The
persuading a slave to escape from his master, or
the concealing or harboring him without the.
knowledge of his master. Dig. 48, 15, 6.
PLAGUE. Pestilence; a contagious and malig-
nant fever.
PLAIDEUR. Fr. An obsolete term for an at-
torney who pleaded the cause of his client; an
advocate.
PLAINT. In civil law. A complaint; a form of
action, particularly one for setting aside a testa-
ment alleged to be invalid. This word is the Eng
lish equivalent of the Latin "querela."
In English practice. A private memorial ten-
dered in open court to the judge, wherein the
party injured sets forth his cause of action. A
proceeding in inferior courts by which an action is.
commenced without original writ 3 Bl.Comm_
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373. This mode of proceeding is commonly adopt•
ed in cases of replevin. 3 Steph.Comm. 666.
PLAINTIFF. A person who brings an action;
the party who complains or sues in a personal
action and is so named on the record. Gulf, etc.,
R. Co. v. Scott, Tex.Civ.App., 28 S.W. 458; Car-
mody v. Land, 207 La. 625, 21 So.2d 764, 768.
Plaintiff in error. The party who sues out a
writ of error to review a judgment or other pro-
ceeding at law.
Use plaintiff. One for whose use (benefit) an
action is brought in the name of another. Thus,
where the assignee of a chose in action is not al-
lowed to sue in his own name, the action would
be entitled "A. B. (the assignor) for the use of
C. D. (the assignee) against E. F." In this case,
C. D. is called the "use plaintiff."
PLAN. A delineation; a design; a draft, a
draft or form or representation; the representa-
tion of anything drawn on a plane, as a map or
chart; a scheme; a sketch; also a method of
action, procedure, or arrangement. Shainwald v.
City of Portland, 153 Or. 167, 55 P.2d 1151, 1156;
Jenney v. Des Moines, 103 Iowa, 347, 72 N.W. 550.
PLANE. Surface in which, if any two points are
taken, straight line that joins them lies wholly
in that surface. In re Vincent, Cust. & Pat.App.,
40 F.2d 573, 574.
PLANT. The fixtures, tools, machinery, and ap-
paratus which are necessary to carry on a trade
or business. Wharton. Southern Bell Tel. Co. v.
D'Alemberte, 39 Fla. 25, 21 So. 570; Sloss-Sheffield
Steel Co. v. Mobley, 139 Ala. 425, 36 So. 181; Max-
well v. Wilmington Dental Mfg. Co., C.C.Del., 77
F. 941; State Public Utilities Commission v. No-
ble, 275 Ill. 121, 113 N.E. 910, 912; McKeon v.
Proctor & Gamble Mfg. Co., 154 App.Div. 740,
139 N.Y.S. 805, 806; Tennessee Coal, Iron & R. Co.
v. Wiggins, 198 Ala. 346, 73 So. 516, 517. An or-
ganized physical equipment to produce any desir-
ed result, or an operating unit. Otis Elevator Co.
v. Arey-Hauser Co., D.C.Pa., 22 F.Supp. 4, 6.
PLANTATION. In English law. A colony; an
original settlement in a new country. See 1 Bl.
Comm. 107.
In American law. A farm; a large cultivated
estate. Used chiefly in the southern states.
In North Carolina, "plantation" signifies the land a man
owns which he is cultivating more or less in annual crops.
Strictly, it designates the place planted; but in wills it is
generally used to denote more than the inclosed and cul-
tivated fields, and to take in the necessary woodland, and,
indeed, commonly all the land forming the parcel or par-
cels under culture as one farm, or even what is worked by
one set of hands. Stowe v. Davis, 32 N.C. 431.
PLAT, or PLOT. A map, or representation on
paper, of a piece of land subdivided into lots, with
streets, alleys, etc., usually drawn to a scale.
McDaniel v. Mace, 47 Iowa, 510; Burke v. McCow-
en, 115 Cal. 481, 47 P. 367.
PLATA. Under Roumanian law, on the sale of
a Roumanian ship, the owners become liable to
the seamen only for repatriation at the expense of
the ship, and "plata salariilor," or payment of sal-
aries; the word "plata" meaning payment, and
"salariilor" being the genitive plural of "salariu,"
which, like the English word "salary," means fix-
ed compensation regularly paid. The Prahova,
D.C.Cal., 38 F.Supp. 418, 425.
PLAY-DEBT. Debt contracted by gaming:
PLAZA. A Spanish word, meaning a public
square in a city or town. Sachs v. Towanda, 79
Ill.App. 441; Kelly v. Town of Hayward, 192 Cal.
242, 219 P. 749.
PLEA. Common-law practice. A pleading; any
one in the series of pleadings. More particularly,
the first pleading on the part of the defendant. In
the strictest sense, the answer which the defend•
ant in an action at law makes to the plaintiff's dec-
laration, and in which he sets up matter of fact
as defense, thus distinguished from a demurrer,
which interposes objections on grounds of law.
Equity. A special answer showing or relying
upon one or more things as a cause why the suit
should be either dismissed or delayed or barred.
Mitf.Eq.P1. 219; Coop.Eq.P1. 223.
A short statement, in response to a bill in
equity, of facts which, if inserted in the bill,
would render it demurrable; while an answer is
a complete statement of the defendant's case, and
contains answers to any interrogatories the plain-
tiff may have administered. Hunt, Eq. pt. 1, c. 3.
Old English Law
A suit or action.
Thus, the power to "hold pleas" is the power to take
cognizance of actions or suits; so "common pleas" are
actions or suits between private persons. And this mean-
ing of the word still appears in the modern declarations,
where it is stated, e. g., that the defendant "has been sum-
moned to answer the plaintiff in a plea of debt."
General
Affirmative plea. One which sets up a single
fact, not appearing in the bill, or sets up a num-
ber of circumstances all tending to establish a
single fact, which fact, if existing, destroys the
complainant's case. Potts v. Potts, N.J.Ch., 42
A. 1055.
Anomalous plea. One which is partly affirma-
tive and partly negative. Baldwin v. Elizabeth, 42
N.J.Eq. 11, 6 A. 275; Potts v, Potts, N.J.Ch., 42 A.
1055.
Bad plea. One which is unsound or insufficient
in form or substance, or which .does not technic-
ally answer or correspond with the pleading which
preceded it in the action.
Common pleas. Common causes or suits; civil
actions brought and prosecuted between subjects
or citizens, as distinguished from pleas of the
crown or criminal cases.
Counter-plea. A plea to some matter incidental
to the main object of the suit, and out of the direct
line of pleadings. In the more ancient system of
pleading, counter-plea was applied to what was,
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in effect, a replication to aid prayer, (q. v.;) that
is, where a tenant for life or other limited inter-
est in land, having an action brought against him
in respect to the title to such land, prayed in aid
of the lord or reversioner for his better defense,
that which the demandant alleged against either
request was called a "counter-plea." Cowell.
Dilatory pleas. See Dilatory.
Double plea. One having the technical fault of
duplicity; one consisting of several distinct and
independent matters alleged to the same point
and requiring different answers.
False plea. A sham plea; (which title see
infra.)
Foreign plea. A plea objecting to the jurisdic-
tion of a judge, on the ground that he had not cog-
nizance of the subject-matter of the suit. Cowell.
Negative plea. One which does not undertake
to answer the various allegations of the bill, but
specifically denies some particular fact or matter
the existence of which is essential to entitle the
complainant to any relief. Potts v. Potts, N.J.
Ch., 42 A. 1056.
Peremptory pleas. "Pleas in bar" are so termed
in contradistinction to that class of pleas called
"dilatory pleas." The former, viz., peremptory
pleas, are usually pleaded to the merits of the ac-
tion, with the view of raising a material issue be-
tween the parties; while the latter class, viz., dila-
tory pleas, are generally pleaded with a view of
retarding the plaintiff's proceedings, and not for
the purpose of raising an issue upon which the
parties may go to trial and settle the point in dis-
pute. Peremptory pleas are also called "pleas in
bar," while dilatory pleas are said to be in abate-
ment only. Brown.
Plea in abatement. In practice. A plea which,
without disputing justice of plaintiff's claim, ob-
jects to place, mode, or time of asserting it; it al-
lows plaintiff to renew suit in another place or
form, or at another time, and does not assume to
answer action on its merits, or deny existence of
particular cause of action on which plaintiff re-
lies. Dickenson v. Hawes, 32 Ga.App. 173, 122 S.E.
811, 812; Harris v. North, 78 W.Va. 76, 88 S.E.
603, 604, 1 A.L.R. 356; Hurst v. Everett, C.C.N.C.,
21 F. 221; Wilson v. Winchester & P. R. Co., C.C.
W.Va., 82 F. 18.
Plea in bar. In practice. A plea which goes
to bar the plaintiff's action; that is, to defeat it
absolutely and entirely. 1 Burrill, Pr. 162; 3 Bl.
Comm. 303; Rawson v. Knight, 71 Me. 102; Nor-
ton v. Winter, 1 Or. 48, 62 Am.Dec. 297; Wilson
v. Knox County, 132 Mo. 387, 34 S.W. 45.
Plea in discharge. One which admits that the
plaintiff had a cause of action, but shows that it
was discharged by some subsequent or collateral
matter, as, payment or accord and satisfaction.
Nichols v. Cecil, 106 Tenn. 455, 61 S.W. 768.
Plea in reconvention. In the civil law. A plea
which sets up new matter, not in defense to the
action, but by way of cross-complaint, set-off, or
counterclaim.
Plea of confession and avoidance. One which
admits that plaintiff had a cause of action, but
which avers that it has been discharged by some
subsequent or collateral matter. De Lissa v.
Fuller Coal and Mining Co., 59 Kan. 319, 52 P.
886, 888.
Plea of guilty. A confession of guilt in open
court. Griffin v. State, 12 Ga.App. 615, 77 S.E.
1080, 1084; Stokes v. State, 122 Ark. 56, 182 S.W.
521; Accardi v. U. S., C.C.A.Mo., 15 F.2d 619, 621.
Plea of nolo contendere. One which has the
same effect as a "plea of guilty" in so far as re-
gards the proceedings on the indictment, and it is
a confession only for the purposes of the criminal
prosecution and does not bind the defendant in a
civil suit for the same wrong. Schireson v. State
Board of Medical Examiners of New Jersey, 129
N.J.L. 203, 28 A.2d 879, 881. See, also, Nolo Con-
tendere.
Plea of release. One which admits the cause
of action, but sets forth a release subsequently
executed by the party authorized to release the
claim. Landis v. Morrissey, 69 Cal. 83, 10 P. 258.
Plea side. The plea side of a court is that
branch or department of the court which enter-
tains or takes cognizance of civil actions and
suits, as distinguished from its criminal or crown
department. Thus the court of king's bench is
said to have a plea side and a crown or criminal
side; the one branch or department of it being de-
voted to the cognizance of civil actions, the other
to criminal proceedings and matters peculiarly
concerning the crown. So the court of exchequer
is said to have a plea side and a crown side; the
one being appropriated to civil actions, the other
to matters of revenue. Brown.
Pleas in short by consent. Pleas which are in-
tended to be nothing more than a mere outline,
or sketch of the defense they respectively set up.
Steele v. Walker, 115 Ala. 485, 21 So. 942, 943, 67
Am.St.Rep. 62.
Pleas of the crown. In English law. A phrase
now employed to signify criminal causes, in which
the king is a party. Formerly it signified royal
causes for offenses of a greater magnitude than
mere misdemeanors.
Pleas roll. In English practice. A record upon
which are entered all the pleadings in a cause,
in their regular order, and the issue.
Pure plea. One which relies wholly on some
matter outside those referred to in the bill; as
a plea of a release on a settled account.
Pleas not pure are so called in contradistinction to pure
pleas; they are sometimes also denominated negative
pleas. 4 Bouvier, Inst. n. 4275.
Sham plea. A false plea; a plea of false or
fictitious matter, subtly drawn so as to entrap
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an opponent, or create delay. 3 Chit.Pr. 729, 730.
A vexatious or false defense, resorted to under
the old system of pleading for purposes of delay
and annoyance. Steph.P1. 383.
Mr. Chitty defines sham pleas to be pleas so palpably
and manifestly untrue that the court will assume them to
be so ; pleas manifestly absurd. When answers or defenses
admit of lawyer-like argument, such as courts should listen
to, they are not "sham," in the sense of the statute. When
it needs argument to prove that an answer or demurrer is
frivolous, it is not frivolous, and should not be stricken
off. To warrant this summary mode of disposing of a
defense, the mere reading ,of the pleadings should be suffi-
cient to disclose, without deliberation and without a doubt,
that the defense is sham or irrelevant. Cottrill v. Cramer,
40 Wis. 559. A "sham plea" is one good on its face, but
false in fact. In re Beam, 93 N.J.Eq. 593, 117 A. 613, 614.
At common law a plea was considered sham when it was
palpably or inherently false, and from the plain or con-
ceded facts in the case must have been known to the party
interposing it to be false. Fidelity Mut. Life Ins. Co. v.
Wilkes Barre & H. R. Co., 98 N.J.Law, 507, 120 A. 734,
735.
Special plea. A special kind of plea in 'bar, dis-
tinguished by this name from the general issue,
and consisting usually of some new affirmative
matter, though it may also be in the form of a
traverse or denial. Steph.P1. 52, 162; Allen v.
New Haven & N. Co., 49 Conn. 245.
Special plea in bar. One which advances new
matter. It differs from the general, in this; that
the latter denies some material allegation, but
never advances new matter. Gould, Pl. c. 2, § 38.
PLEAD. To make, deliver, or file any pleading;
to conduct the pleadings in a cause. To interpose
any pleading in a suit which contains allegations
of fact; in this sense the word is the antithesis
of "demur." More particularly, to deliver in a
formal manner the defendant's answer to the
plaintiff's declaration, or to the indictment, as the
case may be.
To appear as a pleader or advocate in a cause;
to argue a cause in a court of justice. But this
meaning of the word is not technical, but col-
loquial.
PLEAD A STATUTE. Pleading a statute is stat-
ing the facts which bring the case within it; and
"counting" on it, in the strict language of plead-
ing, is making express reference to it by apt terms
to show the source of right relied on. McCullough
v. Colfax County, 4 Neb. (Unof.) 543, 95 N.W. 31.
PLEAD ISSUABLY. This means to interpose
such a plea as is calculated to raise a material
issue, either of law or of fact.
PLEAD OVER. To pass over, or omit to notice,
a material allegation in the last pleading of the
opposite party; to pass by a defect in the plead-
ing of the other party without taking advantage
of it. In another sense, to plead the general is-
sue, after one has interposed a demurrer or spe-
cial plea which has been dismissed by a judgment
of respondeat ouster,
PLEAD TO THE MERITS. This is a phrase of
long standing and accepted usage in the law, and
distinguishes those pleas which answer the cause
of action and on which a trial may be had from all
pleas of a different character. Rahn v. Gunnison,
12 Wis. 529.
PLEADED. Alleged or averred, in form, in a
judicial proceeding.
It more often refers to matter of defense, but
not invariably. To say that matter in a declara-
tion or replication is not well pleaded would not
be deemed erroneous. Abbott.
PLEADER. A person whose business it Is to
draw pleadings. Formerly, when pleading at
common law was a highly technical and difficult
art, there was a class of men known as "special
pleaders not at the bar," who held a position in-
termediate between counsel and attorneys. The
class is now almost extinct, and the term "plead-
ers" is generally applied, in England, to junior
members of the common-law bar. Sweet.
Special pleader. In English practice. A person
whose professional occupation is to give verbal
or written opinions upon statements made ver-
bally or in writing, and to draw pleadings, civil
or criminal, and such practical proceedings as may
be out of the usual course. 2 Chit.Pr. 42.
Special pleaders were not necessarily at the bar; but
those that were not required to take out annual certificates
under 33 & 34 Vict. c. 97, §§ 60, 63; Moz. & W.
PLEADING. The peculiar science or system of
rules and principles, established in the common
law, according to which the pleadings or respon-
sive allegations of litigating parties are framed,
with a view to preserve technical propriety and
to produce a proper issue.
The process performed by the parties to a suit
or action, in alternately presenting written state-
ments of their contention, each responsive to that
which precedes, and each serving to narrow the
field of controversy, until there evolves a single
point, affirmed on one side and denied on the
other, called the "issue," upon which they then
go to trial.
The act or step of interposing any one of the
pleadings in a cause, but particularly one on the
part of the defendant; and, in the strictest sense,
one which sets up allegations of fact in defense
to the action.
The name "a pleading" is also given to any one of the
formal written statements of accusation or defense pre-
sented by the parties alternately in an action at law; the
aggregate of such statements filed in any one cause' are
termed "the pleadings."
The oral advocacy of a client's cause in court,
by his barrister or counsel, is sometimes called
"pleading;" but this is a popular, rather than
technical, use.
Chancery Practice
It consists in making the formal written allega-
tions or statements of the respective parties on
the record to maintain the suit, or to defeat it,
of which, when contested in matters of fact, they
propose to offer proofs, and in matters of law to
offer arguments to the court. Story, Eq.P1. § 4,
note.
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In General
Articulated pleading. The stating In separate
paragraphs, r separately numbered, of each ma-
terial fact of the petition. Newspaper Feature
Service v. Southern Pub. Co., 140 La. 702, 73 So.
777.
Double pleading. This is not allowed either
in the declaration or subsequent pleadings. Its
meaning with respect to the former is that the
declaration must not, in support of a single de-
mand, allege several distinct matters, by any one
of which that demand is sufficiently supported.
With respect to the subsequent pleadings, the
meaning is that none of them is to contain sev-
eral distinct answers to that which preceded it;
and the reason of the rule in each case is that
such pleading tends to several issues in respect
of a single claim. Wharton.
Special pleading. When the allegations (or
"pleadings," as they are called) of the contending
parties in an action are not of the general or ordi-
nary form, but are of a more complex or special
character, they are denominated "special plead-
ings;" and, when a defendant pleads a plea of
this description, (i. e., a special plea,) he is said
to plead specially, in opposition to pleading the
general issue. These terms have given rise to
the popular denomination of that science which,
though properly called "pleading," is generally
known by the name of "special pleading." Brown.
The allegation of special or new matter in opposi-
tion or explanation of the last previous averments
on the other side, as distinguished from a direct
denial of matter previously alleged by the oppo-
site party. Gould, Pl. c. 1, § 18; Gelston v. Hoyt,
3 Wheat. 246, 4 L.Ed. 381; Com.Dig. Pleader (E
15) ; Steph.Pl., And. ed. 240, n. In popular lan-
guage, the adroit and plausible advocacy of a
client's case in court. Stimson, Law Gloss.
PLEADINGS. The formal allegations by the
parties of their respective claims and defenses, for
the judgment of the court. Smith v. Jacksonville
Oil Mill Co., 21 Ga.App. 679, 94 S.E. 900, 901; Wil-
kinson v. Stone, 82 Okl. 296, 200 P. 196, 199; Tread-
gold v. Willard, 81 Or. 658, 160 P. 803, 805.
The individual allegations of the respective par-
ties to an action at common law, proceeding from
them alternately, in the order and under the dis-
tinctive names following: The plaintiff's declara-
tion, the defendant's plea, the plaintiff's replica-
tion, the defendant's rejoinder, the plaintiff's sur-
re joinder, the defendant's rebutter, the plaintiff's
surrebutter; after which they have no distinctive
names. Burrill.
The term "pleadings" has a technical and well-defined
meaning. Pleadings are written allegations of what is
affirmed on the one side, or denied on the other, disclosing
to the court or jury having 'to try the cause the real mat-
ter in dispute between the parties. Desnoyer v. Hereux, 1
Minn. 17 (Gil. 1).
PLEBANUS. In old English ecclesiastical law.
A rural dean. Cowell.
PLEBEIAN. One who is classed among the com-
mon people, as distinguished from the nobles.
PLEBEITY, or PLEBITY. The common or mean-
er sort of people; the plebeians.
PLEBEYOS. In Spanish law. Commons; those
who exercise any trade, or who cultivate the soil.
White, New Recop. b. 1, tit. 5, c. 3, § 6, and note.
PLEBIANA. In old records. A mother church.
PLEBISCITE. In modern constitutional law, the
name "plebiscite" has been given to a vote of the
entire people, (that is, the aggregate of the en-
franchised individuals composing a state or na-
tion,) expressing their choice for or against a
proposed law or enactment, submitted to them,
and which, if adopted, will work a radical change
in the constitution, or which is beyond the pow-
ers of the regular legislative body. The proceed-
ing is extraordinary, and is generally revolution-
ary in its character; an example of which may
be seen in the plebiscites submitted to the French
people by Louis Napoleon, whereby the Second
Empire was established. But the principle of
the plebiscite has been incorporated in the mod-
ern Swiss constitution, (under the name of "re-
ferendum,") by which a revision of the constitu-
tion must be undertaken when demanded by the
vote of fifty thousand Swiss citizens. Maine Pop-
ular Govt. 40, 96.
PLEBISCITUM. Lat. In Roman law. A law
enacted by the plebs or commonalty, (that is, the
citizens, with the exception of the patricians and
senators,) at the request or on the proposition of
a plebeian magistrate, such as a "tribune." Inst.
1, 2, 4.
PLEBS. Lat. In Roman law. The commonalty
or citizens, exclusive of the patricians and sena-
tors. Inst. 1, 2, 4.
PLEDABLE. L. Fr. That may be brought or
conducted; as an action or "plea," as it was
formerly called. Britt. c. 32.
PLEDGE. In the law of bailment. A bailment
of goods to a creditor as security for some debt
or engagement. A bailment or delivery of goods
by a debtor to his creditor, to be kept till the
debt be discharged. Story, Bailm. § 7; Civ. Code
La. art. 3133; 2 Kent, Comm. 577; Stearns v.
Marsh, 4 Denio, N.Y., 229, 47 Am.Dec. 248; Sheri-
dan v. Presas, 18 Misc. 180, 41 N.Y.S. 451; Bank
of Rochester v. Jones, 4 N.Y. 507, 55 Am.Dec. 290;
Gloucester Bank v. Worcester, 10 Pick., Mass., 531;
Lilienthal v. Ballou, 125 Cal. 183, 57 P. 897.
The necessary elements to constitute a contract
one of "pledge" are: Possession of the pledged
property must pass from the pledgor to the pled-
gee; the legal title to the property must remain
in the pledgor; and the pledgee must have a
lien on the property for the payment of a debt or
the performance of an obligation due him by the
pledgor or some other person—while, in a "chat-
tel mortgage," the legal title passes to the mort-
gagee subject to a defeasance. Rice v. Garnett,
17 Ala.App. 239, 84 So. 557, 558; Campbell v. Red-
wine Bros., 22 Ga.App. 455, 96 S.E. 347; Sneeden
v. Nurnberger's Market, 192 N.C. 439, 135 S.E.
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PLENE
328, 330; McAndrews v. Idawa Gold Mining Co.,
54 N.D. 734, 210 N.W. 514, 519, 51 A.L.R. 1123.
A bailment of personal property as security
for a debt or other obligation. Thoen v. First
Nat. Bank, 199 Minn. 47, 271 N.W. 111, 112;
Travers v. Stevens, 108 Fla. 11, 145 So. 851, 854.
The specific article delivered to the creditor
in security is also called a "pledge" or "pawn."
There is a clear distinction between mortgages and
pledges. In a pledge the legal title remains in the pledgor ;
in a mortgage it passes to the mortgagee. In a mortgage
the mortgagee need not have possession; in a pledge the
pledgee must have possession, though it be only construc-
tive. In a mortgage, at common law, the property on non-
payment of the debt passes wholly to the mortgagee; in a
pledge the property is sold, and only so much of the pro-
ceeds as will pay his debt passes to the pledgee. A mort-
gage is a conditional conveyance of property, which be-
comes absolute unless redeemed at a specified time. A
pledge is not strictly a conveyance at all, nor need any day
of redemption be appointed for it. A mortgagee can sell
and deliver the thing mortgaged, subject only to the right
of redemption. A pledgee cannot sell and deliver his pawn
until the debt is due and payment denied. Bouvier.
There are two varieties of the contract of pledge known
to the law of Louisiana, viz., pawn and antichresis ; the
former relating to chattel securities, the latter to landed
securities. Civ.Code La. art. 3134; and see those titles.
PLEDGEE. The party to whom goods are pledg-
ed, or delivered in pledge. Story, Bailm. § 287.
PLEDGERY. Suretyship, or an undertaking or
answering for another. Gloucester Bank v. Wor-
cester, 10 Pick. ; Mass., 531.
PLEDGES. In pleading. Those persons who be-
came sureties for the prosecution of the suit.
Their names were anciently appended at the
foot of the declaration. In time it became purely
a formal matter, because the plaintiff was no
longer liable to be amerced for a false claim, and
the fictitious persons John Doe and Richard Roe
became the universal pledges, or they might be
omitted altogether, 1 Tidd, Pr. 455; Archb. Civ. Pl.
171; or inserted at any time before judgment;
they are now omitted.
PLEDGES TO RESTORE. In England, before
the plaintiff in foreign attachment can issue exe-
cution against the property in the hands of the
garnishee, he must find "pledges to restore," con-
sisting of two householders, who enter into a re-
cognizance for the restoration of the property, as
a security for the protection of the defendant;
for, as the plaintiff's debt is not proved in any
stage of the proceedings, the court guards the
rights of the absent defendant by taking security
on his behalf, so that if he should afterwards dis-
prove the plaintiff's claim he may obtain restitu-
tion of the property attached. Brand. For. At-
tachm. 93; Sweet.
PLEDGOR. The party delivering goods in pledge;
the party pledging. Story, Bailm. § 287.
PLEGIABILIS. In old English law. That may
be pledged; the subject of pledge or security.
Fleta, lib. 1, c. 20, § 98.
PLEGII DE RETORNO HABENDO. Pledges to
return the subject of distress, should the right
be determined against the party bringing the
action of replevin. 3 Steph. Comm. (7th Ed.)
422n.
PLEGIIS ACQUIETANDIS. A writ that ancient-
ly lay for a surety against him for whom he was
surety, if he paid not the money at the day. Fitzh.
Nat. Brev. 137.
PLENA ;ETAS. Lat. In old English law. Full
age.
PLENA ET CELERIS JUSTITIA FIAT PARTI-
BUS. 4 Inst. 67. Let full and speedy justice be
done to the parties.
PLENA FORISFACTURA. A forfeiture of all
that one possesses.
PLENA PROBATIO. In the civil law. A term
used to signify full proof, (that is, proof by two
witnesses,) in contradistinction to semi-plena pro-
batio, which is only a presumption. Cod. 4, 19, 5.
PLENARTY. In English law. Fullness; a state
of being full. A term applied to a benefice when
full, or possessed by an incumbent. The opposite
state to a vacation, or vacancy. Cowell.
PLENARY. Full, entire, complete, absolute, per-
fect, unqualified. Mashunkashey v. Mashunka-
shey, 191 Okl. 501, 134 P.2d 976, 979.
PLENARY CONFESSION. A full and complete
confession. An admission dr confession, whether
in civil or criminal law, is said to be "plenary"
when it is, if believed, conclusive against the per-
son making it. Best, Ev. 664; Rosc. Crim. Ev. 39.
PLENARY SUIT. One that proceeds on formal
pleadings. Central Republic Bank and Trust Co.
v. Caldwell, C.C.A.Mo., 58 F.2d 721.
In the ecclesiastical courts, (and in admiralty practice,)
causes are divided into plenary and summary. The former
are those in whose proceedings the order and solemnity of
the law is required to be exactly observed, so that if there
is the least departure from that order, or disregard of that
solemnity, the whole proceedings are annulled. Summary
causes are those in which it is unnecessary to pursue that
order and solemnity. Brown.
PLENE. Lat. Completely; fully; sufficiently.
PLENE ADMINISTRAVIT. In practice. A plea
by an executor or administrator that he has fully
administered all the assets that have come to his
hands, and that no assets remain out of which the
plaintiff's claim could be satisfied.
PLENE ADMINISTRAVIT PRZETER. In prac-
tice. A plea by an executor or administrator
that he has "fully administered" all the assets
that have come to his hands, "except" assets to a
certain amount, which are not sufficient to satisfy
the plaintiff. 1 Tidd, Pr. 644.
PLEGII DE PROSEQUENDO. Pledges to prose-
cute with effect an action of replevin.
Black's Law Dictionary Revised 4th Ed.-83
PLENE COMPUTAVIT. He has fully accounted.
A plea in an action of account render, alleging
that the defendant has fully accounted.
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PLENIPOTENTIARY
PLENIPOTENTIARY. One who has full power
to do a thing; a person fully commissioned to
act for another. A term applied in international
law to ministers and envoys of the second rank
of public ministers. Wheat. Hist. Law Nat. 266.
PLENUM DOMINIUM. Lat. In the civil law.
Full ownership; the property in a thing united
with the usufruct. Calvin.
PLEVIN. A warrant, or assurance.
PLEYTO. In Spanish law. The pleadings in a
cause. White, New Recop. b. 3, tit. 7.
PLIGHT. In old English law. An estate, with
the habit and quality of the land; extending to a
rent charge and to a possibility of dower. Co.
Litt. 221b; Cowell.
PLOK-PENNIN. A kind of earnest used in pub-
lic sales at Amsterdam. Wharton.
PLOTTAGE. A term used in appraising land
values and particularly in eminent domain pro-
ceedings, to designate the additional value given
to city lots by the fact that they are contiguous,
which enables the owner to utilize them as large
blocks of land. Erlanger v. New York Theatre
Co., 206 App.Div. 148, 200 N.Y.S. 696, 698; People
ex rel. Frederick Loeser & Co. v. Goldfogle, 220
App.Div. 326, 221 N.Y.S. 342, 346.
PLOW-ALMS. The ancient payment of a penny
to the church from every plow-land. 1 Mon. Angl.
256.
PLOW-BOTE. An allowance of wood which ten-
ants are entitled to, for repairing their plows and
other implements of husbandry.
PLOW-LAND. A quantity of land "not of any
certain content, but as much as a plow can, by
course of husbandry, plow in a year." Co. Litt.
69a.
Tillable. Govier v. Brechler, 159 Wis. 157, 149
N.W. 740, 742.
PLOW-MONDAY. The Monday after twelfth-
day.
PLOW-SILVER. Money formerly paid by some
tenants, in lieu of service to plow the lord's lands.
PLUMBATURA. Lat. In the civil law. Solder-
ing. Dig. 6, 1, 23, 5.
PLUMBER. A tradesman who furnishes, fits, and
repairs gas, water and soil pipes, cisterns, tanks,
baths, water closets, their fittings, and other sani-
tary and fire protection apparatus for a house or
other building, including junctions to mains and
sewers. Com. v. Dougherty, 156 Pa.Super. 520, 40
A.2d 902, 903; People v. Osborne, 149 Misc. 676,
269 N.Y.S. 409.
PLUMBUM. Lat. In the civil law. Lead. Dig.
50, 16, 242, 2.
PLUNDER, v. To take property from persons or
places by open force, and this may be in course of
a lawful war, or by unlawful hostility, as in the
case of pirates or banditti. The term is also used
to express the idea of taking property from a
person or place, without just right, but not ex-
pressing the nature or quality of the wrong done.
Carter v. Andrews, 16 Pick., Mass., 9; U. S. v.
Stone, C.C.Tenn., 8 F. 246; U. S. v. Pitman, 27
Fed.Cas. 540.
PLUNDER, n. Personal property belonging to
an enemy, captured and appropriated on land;
booty. Also the act of seizing such property.
See Booty; Prize.
PLUNDERAGE. In maritime law. The embez-
zlement of goods on board of a ship is so called.
PLURAL. Containing more than one; consisting
of or designating two or more. Webster.
PLURAL MARRIAGE. See Marriage.
PLURALIS NUMERUS EST DUOBUS CONTEN-
TUS. 1 Rolle, 476. The plural number is satis-
fied by two.
PLURALIST. One that holds more than one ec-
clesiastical benefice, with cure of souls.
PLURALITER. In the plural. 10 East, 158, arg.
PLURALITY. In the law of elections. The ex-
cess of the votes cast for one candidate over those
cast for any other. Where there are only two
candidates, he who receives the greater number
of the votes cast is said to have a majority; when
there are more than two competitors for the same
office, the person who receives the greatest num-
ber of votes has a plurality, but he has not a
majority unless he receives a greater number of
votes than those cast for all his competitors com-
bined, or, in other words, more than one-half of
the total number of votes cast.
In ecclesiastical law, "plurality" means the
holding two, three, or more benefices by the same
incumbent; and he is called a "pluralist." Plural-
ities are now abolished, except in certain cases.
2 Steph.Comm. 691, 692.
PLURES COHIEREDES SUNT QUASI UNUM
CORPUS PROPTER UNITATEM JURIS QUOD
HABENT. Co. Litt. 163. Several co-heirs are, as
it were, one body, by reason of the unity of right
which they possess.
PLURES PARTICIPES SUNT QUASI UNUM
CORPUS, IN EO QUOD UNUM JUS HABENT.
Co. Litt. 164. Several parceners are as one body,
in that they have one right.
PLURIES. Lat. Often; frequently. When an
original and alias writ have been issued and
proved ineffectual, a third writ, called a "pluries
writ," may frequently be issued. It is to the
same effect as the two former, except that it con-
tains the words, "as we have often commanded
you," ("sicut pluries prcecepimus,") after the us-
ual commencement, "We command you." 3 Bl.
Comm. 283; Archb. Pr. 585.
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PLURIES FI. FA. A writ issued where other
commands of the court have proved ineffectual.
U. S. v. Bd of Dir., C.C.A.La., 229 F. 1, 3.
PLURIS PETITIO. Lat. In Scotch practice. A
demand of more than is due. Bell.
PLUS EXEMPLA QUAM PECCATA NOCENT.
Examples hurt more than crimes.
PLUS PECCAT AUTHOR QUAM ACTOR. The
originator or instigator of a crime is a worse of-
fender than the actual perpetrator of it. Applied
to the crime of subornation of perjury. 5 Coke,
99a.
PLUS PETITIO. In Roman law. A phrase de-
noting the offense of claiming more than was
just in one's pleadings. This more might be
claimed in four different respects, viz.: (1) Re,
i. e., in amount, (e. g., £50 for £5;) (2) loco, i. e.,
in place (e. g., delivery at some place more diffi-
cult to effect than the place specified;) (3) tern-
pore, i. e., in time, (e. g., claiming payment on the
1st of August of what is not due till the 1st of
September;) and (4) causa, e., in quality, (e. g.,
claiming a dozen of champagne, when the con-
tract was only for a dozen of wine generally.)
Prior to Justinian's time, this offense was in gen-
eral fatal to the action; but, under the legislation
of the emperors Zeno and Justinian, the offense
(if re, loco, or causa) exposed the party to the
payment of three times the damage, if any, sus-
tained by the other side, and (if ternpore) obliged
him to postpone his action for double the time,
and to pay the costs of his first action before com-
mencing a second. Brown.
PLUS VALET CONSUETUDO QUAM CONCES-
SIO. Custom is more powerful than grant.
PLUS VALET UNUS OCULATUS TESTIS QUAM
AURITI DECEM. One eye-witness is of more
weight than ten ear-witnesses, [or those who
speak from hearsay.] 4 Inst. 279.
PLUS VIDENT OCULI QUAM OCULUS. Several
eyes see more than one. 4 Inst. 160.
PNEUMOCONIOSIS. A generic term including
all lung diseases caused by dust particles of any
sort. Genesco, Inc. v. Greeson, 125 S.E.2d 786, 789,
105 Ga.App. 798.
PO. LO. SUO. An old abbreviation for the words
"ponit loco suo," (puts in his place,) used in war-
rants of attorney. Townsh. Pl. 431.
POACH. To steal game on a man's land.
POACHING. In English criminal law. The un-
lawful entry upon land for the purpose of taking
or destroying game; the taking or destruction of
game upon another's land, usually committed at
night. Steph. Crim. Law 119, et seq.; 2 Steph.
Comm. 82.
POBLADOR. In Spanish law. A colonizer; he
who peoples; the founder of a colony.
POCKET. This word is used as an adjective in
several compound legal phrases, carrying a mean-
ing suggestive of, or analogous to, its signification
as a pouch, bag, or secret receptacle. For these
phrases, see "Borough," "Judgment," "Record,"
"Sheriff," and "Veto."
PLENA. Lat. Punishment; a penalty. Inst. 4,
6, 18, 19.
POD NET. See Pound Net.
PLENA AD PAUCOS, METUS AD OMNES PER-
VENIAT. If punishment be inflicted on a few, a
dread comes to all.
P(ENA CORPORALIS. Corporal punishment.
PCENA EX DELICTO DEFUNCTI HIERES TE-
NERI NON DEBET. The heir ought not to be
bound by a penalty arising out of the wrongful
act of the deceased. 2 Inst. 198.
PLENA NON POTEST, CULPA PERENNIS
ERIT. Punishment cannot be, crime will be, per-
petual. 21 Vin. Abr. 271.
PCENA PILLORALIS. In old English law. Pun-
ishment of the pillory. Fleta, lib. 1, c. 38, § 11.
PCENA SUOS TENERE DEBET ACTORES ET
NON ALIOS. Punishment ought to bind the
guilty, and not others. Bract. fol. 380b.
PLENA TOLLI POTEST, CULPA PERENNIS
ERIT. The punishment can be removed, but the
crime remains. 1 Park.Cr.Rep. (N.Y.) 241.
PCENZE, POTIUS MOLLIENDZE QUAM EXAS-
PARANDIE SUNT. 3 Inst. 220. Punishments
should rather be softened than aggravated.
PENCE SINT RESTRINGEND1E. Punishments
should be restrained. Jenk. Cent. 29.
PCENIE SUOS TENERE DEBET ACTORES ET
NON ALIOS. Punishment ought to be inflicted
upon the guilty, and not upon others. Bract 380b;
Fleta, 1. 1, c. 38, § 12; 1. 4, c. 17, § 17.
PCENALIS. Lat. In the civil law. Penal; im-
posing a penalty; claiming or enforcing a penal-
ty. Actiones pcenales, penal actions. Inst. 4, 6,
12.
PCENITENTIA. Lat. In the civil law. Repen-
tance; reconsideration; changing one's mind;
drawing back from an agreement already made,
or rescinding it.
Locus pcenitentice. Room or place for repen-
tance or reconsideration; an opportunity to with-
draw from a negotiation before finally concluding
the contract or agreement. Also, in criminal law,
an opportunity afforded by the circumstances to
a person who has formed an intention to kill or
to commit another crime, giving him a chance
to reconsider and relinquish his purpose.
POINDING. The process of the law of Scotland
which answers to the distress of the English law.
Poinding is of three kinds:
Real poinding or poinding of the ground. This
is the action by which a creditor, having a se-
curity on the land of his debtor, is enabled to
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appropriate the rents of the land, and the goods
of the debtor or his tenants found thereon, to the
satisfaction of the debt.
Personal poinding. This consists in the seizure
of the goods of the debtor, which are sold under
the direction of a court of justice, and the net
amount of the sales paid over to the creditor in
satisfaction of his debt; or, if no purchaser ap-
pears, the goods themselves are delivered.
Poinding of stray cattle, committing depreda-
tions on corn, grass, or plantations, until satis-
faction is made for the damage. Bell.
POINT. A distinct proposition or question of
law arising or propounded in a case. Gulf, C.
& S. F. Ry. Co. v. Tarver, Steele & Co., Tex.Civ.
App., 295 S.W. 320, 323.
POINT RESERVED. When, in the progress of
the trial of a cause, an important or difficult point
of law is presented to the court, and the court is
not certain of the decision that should be given,
it may reserve the point, that is, decide it pro-
visionally as it is asked by the party, but reserve
its more mature consideration for the hearing
on a motion for a new trial, when, if it shall ap-
pear that the first ruling was wrong, the verdict
will be set aside. The point thus treated is tech-
nically called a "point reserved."
POINTS. The distinct propositions of law, or
chief heads of argument, presented by a party
in his paper-book, and relied upon on the argu-
ment of the cause. Also the marks used in punc-
tuation. Duncan v. Kohler, 37 Minn. 379, 34 N.W.
594; Commonwealth Ins. Co. v. Pierro, 6 Minn.
570 (Gil. 404).
POISON. In medical jurisprudence. A substance
having an inherent deleterious property which
renders it, when taken into the system, capable
of destroying life. 2 Whart. & S. Med. Jur. § 1.
A substance which, on being applied to the hu-
man body, internally or externally, is capable of
destroying the action of the vital functions, or of
placing the solids and fluids in such a state as to
prevent the continuance of life. Wharton. Bos-
well v. State, 114 Ga. 40, 39 S.E. 897; United
States Mut. Ace. Ass'n v. Newman, 84 Va. 52, 3
S.E. 805.
POLAR STAR RULE. The rule that the intent of
the maker of a written document, as gathered
from its four corners, shall prevail unless such
intent conflicts with some statutory provision
within the jurisdiction, or is against public policy.
Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784,
786.
POLE. A measure of length, equal to five yards
and a half.
POLICE. The function of that branch of the
administrative machinery of government which
is charged with the preservation of public order
and tranquillity, the promotion of the public
health, safety, and morals, and the prevention, de-
tection, and punishment of crimes. State v. Hine,
59 Conn. 50, 21 A. 1024, 10 L.R.A. 83; People v.
Squire, 107 N.Y. 593, 14 N.E. 820, 1 Am.St.Rep.
893.
The police of a state, in a comprehensive sense, em-
braces its whole system of internal regulation, by which
the state seeks not only to preserve the public order and to
prevent offenses against the state, but also to establish for
the intercourse of citizen with citizen those rules of good
manners and good neighborhood which are calculated to
prevent a conflict of rights, and to insure to each the unin-
terrupted enjoyment of his own, so far as is reasonably
consistent with a like enjoyment of rights by others.
Cooley, Const.Lim. *572. It is defined by Jeremy Bentham
in his works: "Police is in general a system of precau-
tion, either for the prevention of crime or of calamities.
Its business may be distributed into eight distinct branch-
es; (1) police for the prevention of offenses; (2) police
for the prevention of calamities; (3) police for the preven-
tion of epidemic diseases; (4) police of charity; (5) police
of interior communications; (6) police of public amuse-
ments; (7) police for recent intelligence; (8) police for
registration." Canal Com'rs v. Willamette Transp. Co., 6
Or. 222.
The term "police" has also been divided into "adminis-
trative police", which has for its object to maintain con-
stantly public order in every part of the general adminis-
tration, and "judiciary police" which is intended princi-
pally to prevent crimes by punishing the criminals. Its
object is to punish crimes which the administrative police
has not been able to prevent. Green v. City of Bennetts-
ville, 197 S.C. 313, 15 S.E.2d 334, 337.
POLICE COURT. The name of a kind of infer-
ior court in several of the states, which has a
summary jurisdiction over minor offenses and
misdemeanors of small consequence, and the pow-
ers of a committing magistrate in respect to
more serious crimes, and, in some states, a limited
jurisdiction for the trial of civil causes. In Eng-
lish law. Courts in which stipendiary magis-
trates, chosen from barristers of a certain stand-
ing, sit for the dispatch of business. Their gen-
eral duties and powers are the same as those of
the unpaid magistracy, except that one of them
may usually act in cases which would require to
be heard before two other justices. Wharton.
POLICE DE CHARGEMENT. Fr. In French
law. A bill of lading. Ord. Mar. liv. 3, tit. 2.
POLICE JURY. In Louisiana. The governing
bodies of the "parishes," which are political sub-
divisions of the state, comparable to counties in
other states. National Liberty Ins. Co. of Ameri-
ca v. Police Jury of Natchitoches Parish, 'C.C.A.
La., 96 F.2d 261, 262.
POLICE JUSTICE. A magistrate charged exclu-
sively with the duties incident to the common-law
office of a conservator or justice of the peace;
the prefix "police" serving merely to distinguish
them from justices having also civil jurisdiction.
Wenzler v. People, 58 N.Y. 530.
POLICE MAGISTRATE. An inferior judicial of-
ficer having jurisdiction of minor criminal of-
fenses, breaches of police regulations, and the
like; so called to distinguish them from magis-
trates who have jurisdiction in civil cases also,
as justices of the peace. People v. Curley, 5 Colo.
416; McDermont v. Dinnie, 6 N.D. 278, 69 N.W.
295.
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POLICE OFFICER. One of the staff of men em-
ployed in cities and towns to enforce the muni-
cipal police, i. e., the laws and ordinances for
preserving the peace and good order of the com-
munity. Otherwise called "policeman."
POLICE POWER. The power vested in a state
to establish laws and ordinances for the regula-
tion and enforcement of its police as above de-
fined. The power vested in the legislature to
make, ordain, and establish all manner of whole-
some and reasonable laws, statutes, and ordi-
nances, either with penalties or without, not re-
pugnant to the constitution, as they shall judge
to be for the good and welfare of the common-
wealth, and of the subjects of the same. Corn. v.
Alger, 7 Cush. (Mass.) 85. An authority con-
ferred by the American constitutional system up-
on the individual states, through which they are
enabled to establish a special department of po-
lice; adopt such regulations as tend to prevent
the commission of fraud, violence, or other offens-
es against the state; aid in the arrest of crim-
inals; and secure generally the comfort, health,
and prosperity of the state, by preserving the
public order, preventing a conflict of rights in the
common intercourse of the citizens, and insuring
to each an uninterrupted enjoyment of all the
privileges conferred upon him by the laws of his
country. Lalor, Pol. Enc. s. v.
That inherent and plenary power in state over persons
and property which enables the people to prohibit all
things inimical to comfort, safety, health, and welfare of
society. Drysdale v. Prudden, 195 N.C. 722, 143 S.E. 530,
536.
It is true that the legislation which secures to all pro-
tection in their rights, and the equal use and enjoyment of
their property, embraces an almost infinite variety of sub-
jects. Whatever affects the peace, good order, morals,
and health of the community comes within its scope; and
every one must use and enjoy his property subject to the
restrictions which such legislation imposes.  What is
termed the "police power" of the state, which, from the
language often used respecting it, one would suppose to be
an undefined and irresponsible element in government, can
only interfere with the conduct of individuals in their in-
tercourse with each other, and in the use of their property,
so far as may be required to secure these objects. Munn
v. Illinois, 94 U.S. 145, 24 L.Ed. 77. For other definitions,
see Slaughterhouse Cases, 16 Wall. 62, 21 L.Ed. 394; Stone
v. Mississippi, 101 U.S. 818, 25 L.Ed. 1079; Thorpe v. Rut-
land & B. R. Co., 27 Vt. 140, 62 Am.Dec. 625; People v.
Steele, 231 Ill. 340, 83 N.E. 236, 14 L.R.A.,N.S., 361, 121
Am.St.Rep. 321; In re Clark, 65 Conn. 17, 31 A. 522, 28
L.R.A. 242; Mathews v. Board of Education, 127 Mich. 530,
86 N.W. 1036, 54 L.R.A. 736; In re Main, 162 Okl. 65, 19
P.2d 153, 156.
POLICE REGULATIONS. Laws of a state, or
ordinances of a municipality, which have for their
object the preservation and protection of public
peace and good order, and of the health, morals,
and security of the people. Ex parte Bourgeois,
60 Miss. 663, 45 Am.Rep. 420; Sonora v. Curtin,
137 Cal. 583, 70 P. 674; Roanoke Gas Co. v.
Roanoke, 88 Va. 810, 14 S.E. 665.
POLICE SUPERVISION. In England, subjection
to police supervision is where a criminal offender
is subjected to the obligation of notifying the
place of his residence and every change of his
residence to the chief officer of police of the dis-
trict, and of reporting himself once a month to
the chief of ficer or his substitute. Offenders sub-
ject to police supervision are popularly called
"habitual criminals." Sweet.
POLICIES OF INSURANCE, COURT OF. A
court established in pursuance of the statutes 43
Eliz. c. 12, and 13 & 14 Car. II. c. 23. Composed
of the judge of the admiralty, the recorder of
London, two doctors of the civil law, two common
lawyers, and eight merchants; any three of
whom, one being a civilian or a barrister, could
determine in a summary way causes concerning
policies of assurance in London, with an appeal
to chancery. No longer in existence. 3 Bl.Comm.
74.
POLICY. The general principles by which a gov-
ernment is guided in its management of public
affairs, or the legislature in its measures.
This term, as applied to a law, ordinance, or
rule of law, denotes its general purpose or tend-
ency considered as directed to the welfare or
prosperity of the state or community.
In gaming. A species of "lottery" whereby the
chance is determined by numbers; "numbers
game" also being a lottery. People v. Hines, 258
App.Div. 466, 17 N.Y.S.2d 141, 142.
Policy of a statute, or legislature. As applied
to a penal or prohibitive statute, means -the in-
tention of discouraging conduct of a mischievous
tendency. See L.R. 6 P.C. 134; 5 Barn. & Ald.
335; Pol. Cont. 235.
Policy of the law. By this phrase is under-
stood the disposition of the law to discountenance
certain classes of acts, transactions, or agree-
ments, or to refuse them its sanction, because it
considers them immoral, detrimental to the pub-
lic welfare, subversive of good order, or other-
wise contrary to the plan and purpose of civil
regulations.
Public policy. That principle of the law which
holds that no subject can lawfully do that which
has a tendency to be injurious to the public or
against the public good. 4 H. L. Cas. 1; Greenh.
Pub. Pol. 2. The principles under which the free-
dom of contract or private dealings is restricted
by law for the good of the community. Wharton.
The term "policy," as applied to a statute, regu-
lation, rule of law, course of action, or the like,
refers to its probable effect, tendency, or object,
considered with reference to the social or politi-
cal well-being of the state. Thus, certain classes
of acts are said to be "against public policy,"
when the law refuses to enforce or recognize
them, on the ground that they have a mischievous
tendency, so as to be injurious to the interests of
the state, apart from illegality or immorality.
Sweet Egerton v. Earl Brownlow, 4 H.L.Cas. 235;
Smith v. Railroad Co., 115 Cal. 584, 47 P. 582.
Workmen's Compensation Board of Kentucky v.
Abbott, 212 Ky. 123, 278 S.W. 533, 536, 47 A.L.R.
789; Driver v. Smith, 89 N.J.Eq. 339, 104 A. 717,
725; Nashville Ry. & Light Co. v. Lawson, 144
Tenn. 78, 229 S.W. 741, 743; American Nat. Ins.
Co. v. Coates, 112 Tex. 267, 246 S.W. 356, 359;
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People v. Herrin, 284 Ill. 368, 120 N.E. 274, 275;
Fidelity & Deposit Co. of Maryland v. Moore, D.
C.Or., 3 F.2d 652, 653.
"Public policy" is the community common sense and
common conscience extended and applied throughout the
state to matters of public morals, public health, public
safety, public welfare, and the like; it is that general and
well-settled public opinion relating to man's plain, palpable
duty to his fellow men having due regard to all the cir-
cumstances of each particular relation and situation. Pitts-
burgh, C., C. & St. L. Ry. Co. v. Kinney, 95 Ohio St. 64,
115 N.E. 505, 506, L.R.A.1917D, 641, Ann.Cas.1918B, 286.
Public policy properly cognizable by courts is that derived
or derivable by clear implication from its Constitution,
statutes, and judicial decisions. Brown v. American Ry.
Express Co., 128 S.C. 428, 123 S.E. 97, 98; In re Ralin's
Estate, 316 Mo. 492, 291 S. W. 120, 122, 51 A.L.R. 877;
Hogston v. Bell, 185 Ind. 536, 112 N.E. 883, 886; New York
Life Ins. Co. v. Hamburger, 174 Mich. 254, 140 N.W. 510,
512. "Public policy is a variable quantity; it must and does
vary with the habits, capacities, and opportunities of the
public." 36 Ch. Div. 359; Chaffee v. Farmers' Co-op. Ele-
vator Co., 39 N. D. 585, 168 N.W. 616, 618.
POLICY OF INSURANCE. A mercantile instru-
ment in writing, by which one party, in considera-
tion of a premium, engages to indemnify another
against a contingent loss, by making him a pay-
ment in compensation, whenever the event shall
happen by which the loss is to accrue. 2 Steph.
Comm. 172. Contract whereby insurer, in return
for premiums, engages, on happening of designat-
ed event, to pay certain sum as provided. In re
O'Neill's Estate, 143 Misc. 733, 255 N.Y.S. 767, 771.
The written instrument in which a contract of
insurance is set forth, Civ. Code Cal. § 2586.
Blanket policy. A policy of fire insurance
which contemplates that the risk is shifting, fluc-
tuating, or varying, and is applied to a class of
property rather than to any particular article
or thing. Insurance Co. v. Baltimore Warehouse
Co., 93 U.S. 541, 23 L.Ed. 868; Insurance Co. v.
Landau, 62 N.J.Eq. 73, 49 A. 738.
The term "specific" as applied in insurance phraseology
is frequently used in contrast with "blanket insurance"
and denotes coverage of a particular piece of property or
property at a specific location, as contrasted with blanket
insurance which covers the same and other property in
several different locations. Davis Yarn Co. v. Brooklyn
Yarn Dye Co., 293 N.Y. 236, 56 N.E.2d 564, 571.
Class of life insurance policies. Those policies
issued in the same calendar year, upon the lives
of persons of the same age, and on the same plan
of insurance. Miller v. New York Life Ins. Co.,
179 Ky. 246, 200 S.W. 482, 484.
Endowment policy. In life insurance. A policy
the amount of which is payable to the assured
himself at the end of a fixed term of years, if
he is then living, or to his heirs or a named bene-
ficiary if he shall die sooner.
Floating policy. A policy of fire insurance not
applicable to any specific described goods, but to
any and all goods which may at the time of the
fire be in a certain building.
Interest policy. One where the assured has a
real, substantial, and assignable interest in the
thing insured; as opposed to a wager policy.
Mixed policy. A policy of marine insurance in
which not only the time is specified for which the
risk is limited, but the voyage also is described
by its local termini; as opposed to policies of in-
surance for a particular voyage, without any
limits as to time, and also to purely time policies,
in which there is no designation of local termini
at all. .1V1ozley & Whitley. And see Wilkins v.
Tobacco Ins. Co., 30 Ohio, 340, 27 Am.Rep. 455.
Open policy. One in which the value of the
subject insured is not fixed or agreed upon in the
policy as between the assured and the underwrit-
er, but is left to be estimated in case of loss. The
term is opposed to "valued policy," in which the
value of the subject insured is fixed for the pur-
pose of the insurance, and expressed on the face
of the policy. Mozley & Whitley. Riggs v. Fire
Protection Ass'n, 61 S.C. 448, 39 S.E. 614; Cox v.
Insurance Co., 3 Rich. Law, 331, 45 Am.Dec. 771;
Insurance Co. v. Butler, 38 Ohio St. 128. But this
term is also sometimes used in America to de-
scribe a policy in which an aggregate amount is
expressed in the body of the policy, and the speci-
fic amounts and subjects are to be indorsed from
time to time. London Assur. Corp. v. Paterson,
106 Ga. 538, 32 S.E. 650.
Paid-up policy. In life insurance. A policy on
which no further payments are to be made in the
way of annual premiums.
Policy loan. An advancement on life policy
without a personal obligation on the part of the
policy holder as to repayment. Board of Asses-
sors of the Parish of Orleans v. New York Life
Ins. Co., 30 S.Ct. 385, 216 U.S. 517, 54 L.Ed. 597.
Time policy. In fire insurance, one made for a
defined and limited time, as, one year. In marine
insurance, one made for a particular period of
time, irrespective of the voyage or voyages upon
which the vessel may be engaged during that
period. Wilkins v. Tobacco Ins. Co., 30 Ohio St.
339, 27 Am.Rep. 455; Greenleaf v. St. Louis Ins.
Co., 37 Mo. 29.
Valued policy. One in which the value of the
thing insured is settled by agreement between
the parties and inserted in the policy. Riggs v.
Insurance Co., 61 S.C. 448, 39 S.E. 614; Luce v.
Insurance Co., 15 Fed.Cas. 1071.
Voyage policy. A policy of marine insurance
effected for a particular voyage or voyages of
the vessel, and not otherwise limited as to time.
Wilkins v. Tobacco Ins. Co., 30 Ohio St. 339, 27
Am.Rep. 455.
Wager policy. An insurance upon a subject-
matter in which the party assured has no real,
valuable, or insurable interest. A mere wager
policy is that in which the party assured has no
interest in the thing assured, and could sustain
no possible loss by the event insured against,
if he had not made such wager. Gambs v. Insur-
ance Co., 50 Mo. 47; Moving Picture Co. of Amer-
ica v. Scottish Union & National Ins. Co. of Edin-
burg, 244 Pa. 358, 90 A. 642, 644; Avery v. Me-
chanics' Ins. Co. of Philadelphia, Mo.App., 295 S.
W. 509, 512.
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POLL-MONEY
POLITIZE LEGIBUS NON LEGES POLITHS
ADAPTANIVE. Politics are to be adapted to the
laws, and not the laws to politics. Hob. 154.
POLITICAL. Pertaining or relating to the policy
or the administration of government, state or na-
tional. People v. Morgan, 90 Ill. 558. Pertaining
to, or incidental to, the exercise of the functions
vested in those charged with the conduct of gov-
ernment; relating to the management of affairs
of state; as political theories; of or pertaining
to exercise of rights and privileges or the in-
fluence by which individuals of a state seek to
determine or control its public policy; having to
do with organization or action of individuals,
parties, or interests that seek to control appoint-
ment or action of those who manage affairs of a
state. State ex rel. Maley v. Civic Action Com-
mittee, 238 Iowa 851, 28 N.W.2d 467, 470.
POLITICAL ARITHMETIC. An expression some-
times used to signify the art of making calcula-
tions on matters relating to a nation; the rev-
enues, the value of land and effects; the produce
of lands and manufactures; the population, and
the general statistics of a country. Wharton.
POLITICAL COMMITTEE. Exists whenever
three or more persons co-operate to bring about
election or defeat of candidate or proposition at
election. Empire City Job Print v. Harbord, 148
Misc. 331, 265 N.Y.S. 450.
POLITICAL CORPORATION. A public or muni-
cipal corporation; one created for political pur-
poses, and having for its object the administra-
tion of governmental powers of a subordinate or
local nature. Auryansen v. Hackensack Imp.
Com'n, 45 N.J.L. 115; Curry v. District Tp., 62
Iowa 102, 17 N.W. 191.
POLITICAL ECONOMY. The science which de-
scribes the methods and laws of the production,
distribution, and consumption of wealth, and
treats of economic and industrial conditions and
laws, and the rules and principles of rent, wages,
capital, labor, exchanges, money, population, etc.
The science which determines what laws men
ought to adopt in order that they may, with the
least possible exertion, procure the greatest abun-
dance of things useful for the satisfaction of their
wants, may distribute them justly, and consume
them rationally. De Laveleye, Pol. Econ. The
science which treats of the administration of
the revenues of a nation, or the management and
regulation of its resources, and productive prop-
erty and labor. Wharton.
POLITICAL LAW. That branch of jurisprudence
which treats of the science of politics, or the or-
ganization and administration of government.
POLITICAL LIBERTY. See Liberty.
POLITICAL OFFENSES. As a designation of a
class of crimes usually excepted from extradition
treaties, this term denotes crimes which are in-
cidental to and form a part of political disturb-
ances; but it might also be understood to include
offenses consisting in an attack upon the politi-
cal order of things established in the country
where committed, and even to include offenses
committed to obtain any political object. 2 Steph.
Crim. Law, 70.
POLITICAL OFFICE. See Office.
POLITICAL PARTY. A number of persons unit-
ed in opinion and organized in the manner usual
to the then existing political parties. Swindall v.
State Election Board, 168 Okl. 97, 32 P.2d 691,
695. An unincorporated, voluntary association of
persons sponsoring certain ideas of government
or maintaining certain political principles or be-
liefs in public policies of government, not a gov-
ernmental agency or instrumentality. Robinson
v. Holman, 181 Ark. 428, 26 S.W.2d 66, 68, 70 A.L.
R. 1480.
POLITICAL QUESTIONS. Questions of which
the courts of justice will refuse to take cogniz-
ance, or to decide, on account of their purely
political character, or because their determination
would involve an encroachment upon the execu-
tive or legislative powers; e. g., what sort of
government exists in a state, whether peace or
war exists, whether a foreign country has be-
come an independent state, etc. Kenneth v.
Chambers, 14 How. 38, 14 L.Ed. 316.
POLITICAL RIGHTS. Those which may be exer-
cised in the formation or administration of the
government. People v. Morgan, 90 Ill. 563. Rights
of citizens established or recognized by constitu-
tions which give them the power to participate
directly or indirectly in the establishment or ad-
ministration of government. People v. Barrett,
203 Ill. 99, 67 N.E. 742, 96 Am.St.Rep. 296; Win-
nett v. Adams, 71 Neb. 817, 99 N.W. 684.
POLITICS. The science of government; the art
or practice of administering public affairs.
POLITY. The form of government; civil consti-
tution.
POLL, v. In practice. To single out, one by one,
of a number of persons. To examine each juror
separately, after a verdict has been given, as to
his concurrence in the verdict. 1 Burrill, Pr. 239;
State v. Boger, 202 N.C. 702, 163 S.E. 877, 878.
POLL, n. A head; an individual person; a regis-
ter of persons. In the law of elections, a list
or register of heads or individuals who may vote
in an election; the aggregate of those who ac-
tually cast their votes at the election, excluding
those who stay away. De Soto Parish v. Wil-
liams, 49 La.Ann. 422, 21 So. 647, 37 L.R.A. 761.
See, also, Polls.
POLL, adj. Cut or shaved smooth or even; cut
in a straight line without indentation. A term
anciently applied to a deed, and still used, though
with little of its former significance. 2 Bl.Comm.
296.
POLL-MONEY. A tax ordained by act of parlia-
ment (18 Car. II. c. 1), by which every subject in
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POLL-TAX
the kingdom was assessed by the head or poll,
according to his degree. Cowell. A similar per-
sonal tribute was more anciently termed "poll-
POLL-TAX. A capitation tax; a tax of a specific
sum levied upon each person within the jurisdic-
tion of the taxing power and within a certain
class (as, all males of a certain age, etc.) without
reference to his property or lack of it. Southern
Ry. Co. v. St. Clair County, 124 Ala. 491, 27 So.
23; Short v. State, 80 Md. 392, 31 A. 322, 29 L.R.A.
404; Marion Foundry Co. v. Landes, 112 Ohio St.
166, 147 N.E. 302, 304. Breedlove v. Suttles, Ga.,
58 S.Ct. 205, 207, 302 U.S. 277, 82 L.Ed. 252.
POLLARDS. A foreign coin of base metal, pro-
hibited by St. 27 Edw. I. c. 3, from being brought
into the realm, on pain of forfeiture of life and
goods. 4 Bl.Comm. 98. It was computed at two
pollards for a sterling or penny. Dyer, 82b.
POLLENGERS. Trees which have been lopped;
distinguished from timber-trees. Plowd. 649.
POLLICITATION. In the civil law. An offer
not yet accepted by the person to whom it is
made. Langd. Cont. § 1. See McCulloch v. Eagle
Ins. Co., 1 Pick. (Mass.) 283.
POLLIGAR, POLYGAR. In Hindu law. The
head of a village or district; also a military chief-
tain in the peninsula, answering to a hill zemindar
in the northern circars. Wharton.
POLLING THE JURY. A practice whereby the
jurors are asked individually whether they as-
sented, and still assent, to the verdict. To poll
a jury is to call the names of the persons who
compose a jury and require each juror to declare
what his verdict is before it is recorded. Silak
v. Hudson & M. R. Co., 114 N.J.L. 428, 176 A. 674,
675.
POLLS. The place where electors cast in their
votes. Adams v. Corwin, 118 Misc. 701, 195 N.Y.S.
41, 42.
Heads; individuals; persons singly considered.
A challenge to the polls (in capita) is a challenge
to the individual jurors composing the panel, or
an exception to one or more particular jurors. 3
Bl.Comm. 358, 361.
POLLUTE. To corrupt or defile. Young v. State,
194 Ind. 221, 141 N.E. 309, 311.
POMACE WINE. Any product made by the addi-
tion of water and sugar to the pomace of grapes
from which the juice has been partially expressed,
and by fermenting the mixture until a fermented
beverage is produced. United States v. Sixty
Barrels of Wine, D.C.Mo., 225 F. 846, 848.
POLYANDRY. The civil condition of having
more husbands than one to the same woman; a
social order permitting plurality of husbands.
POLYGAMIA EST PLURIUM SIMUL VIRORUM
UXORUMVE CO-NNUBIUM. 3 Inst. 88. Polyga-
my is the marriage with many husbands or wives
at one time.
POLYGAMY. In criminal law. The offense of
having several wives or husbands at the same
time, or more than one wife or husband at the
same time. 3 Inst. 88. And see Reynolds v. U. S.,
98 U.S. 145, 25 L.Ed. 244; McBride v. Graeber,
16 Ga.App. 240, 85 S.E. 86, 89.
The offense committed by a layman in marrying
while any previous wife is living and undivorced;
as distinguished from bigamy in the sense of a
breach of ecclesiastical law involved in any sec-
ond marriage by a clerk.
Polygamy, or bigamy, shall consist in knowing-
ly having a plurality of husbands or wives at the
same time. Code Ga.1882, § 4530 (Pen.Code 1910,
§ 367).
A bigamist or polygamist is a man who, having contract-
ed a bigamous or polygamous marriage, and become the
husband at one time, of two or more wives, maintains that
relation and status at the time when he offers to be regis-
tered as a voter (8 U.S.C.A. § 136); and this without ref-
erence to the question whether he was at any time guilty
of the offense of bigamy or polygamy, or whether any
prosecution for such offense was barred by the lapse of
time; neither is it necessary that he should be guilty of
polygamy under the first section of the act of March 22,
1882. Murphy v. Ramsey, 5 S.Ct. 747, 114 U.S. 16, 29 L.Ed.
47; Cannon v. U. S., 6 S.Ct. 278, 116 U.S. 55, 29 L.Ed. 561.
Bigamy literally means a second marriage dis-
tinguished from a third or other; while polygamy
means many marriages,—implies more than two.
POLYGARCHY. A term sometimes used to de-
note a government of many or several; a govern-
ment where the sovereignty is shared by several
persons; a collegiate or divided executive.
POMARIUM. In old pleading. An apple tree; an
orchard.
POND. A body of stagnant water without an
outlet, larger than a puddle and smaller than a
lake; or a like body of water with a small out-
let. Webster. Rockland Water Co. v. Camden &
R. Water Co., 80 Me. 544, 15 A. 785, 1 L.R.A. 388;
Concord Mfg. Co. v. Robertson, 66 N.H. 1, 25 A.
718, 18 L.R.A. 679; Munn v. Board of Sup'rs of
Greene County, 161 Iowa 26, 141 N.W. 711, 714;
Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603,
297 S.W. 225, 229, 53 A.L.R. 1147.
A standing ditch cast by labor of man's hand, in
his private grounds, for his private use, to serve
his house and household with necessary waters;
but a pool is a low plat of ground by nature, and
is not cast by man's hand. Call.Sew. 103.
Great ponds. In Maine and Massachusetts, nat-
ural ponds having a superficial area of more than
ten acres, and not appropriated by the proprie-
tors to their private use prior to a certain date.
Barrows v. McDermott, 73 Me. 441; West Rox-
bury v. Stoddard, 7 Allen (Mass.) 158.
Public pond. In New England, a great pond; a
pond covering a superficial area of more than ten
acres. Brastow v. Rockport Ice Co., 77 Me. 100;
West Roxbury v. Stoddard, 7 Allen (Mass.) 170.
Private pond. A body of water wholly on the
lands of a single owner, or of a single group of
joint owners or tenants in common, which did not
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POOLING
have any such connection with any public waters
that fish could pass from one to the other. If
pond was so connected with public waters that at
time of high water, fish could go in and out, it
was not "private pond" from which defendants
could seine fish whether fish might go out same
day or next season. State v. Lowder, 198 Ind. 234,
153 N.E. 399, 400.
PONDERANTUR TESTES, NON NUMERAN-
TUR. Witnesses are weighed, not counted. 1
Starkie, Ev. 554; Best, Ev. p. 426, § 389; Bakeman
v. Rose, 14 Wend. (N.Y.) 105, 109.
PONDUS. In old English law. Poundage;  e.,
a duty paid to the crown according to the weight
of merchandise,
PONDUS REGIS. The king's weight; the stand-
ard weight appointed by the king. Cowell.
PONE. In English practice. An original writ
formerly used for the purpose of removing suits
from the court-baron or county court into the
superior courts of common law. It was also the
proper writ to remov6 all suits which were before
the sheriff by writ of justices. But this writ is
now in disuse, the writ of certiorari being the
ordinary process by which at the present day a
cause is removed from a county court into any
superior court. Brown.
PONE PER VADIUM. In English practice. An
obsolete writ to the sheriff to summon the de-
fendant to appear and answer the plaintiff's suit,
on his putting in sureties to prosecute. It was
so called from the words of the writ, "pone per
vadium et salvos plegios," "put by gage and safe
pledges, A. B., the defendant."
PONENDIS IN ASSISIS. An old writ directing
a sheriff to impanel a jury for an assize or real
action.
PONENDUM IN BALLIUM. A writ commanding
that a prisoner be bailed in cases bailable. Reg.
Orig. 133.
PONENDUM SIGILLUM AD EXCEPTIONEM.
A writ by which justices were required to put
their seals to exceptions exhibited by a defendant
against a plaintiff's evidence, verdict, or other pro-
ceedings, before them, according to the statute
Westm. 2, (13 Edw. I. St. 1, c. 31).
PONERE. Lat. To put, place, lay, or set. Often
used in the Latin terms and phrases of the old
law.
PONIT SE SUPER PATRIAM. Lat. He puts
himself upon the country. The defendant's plea
of not guilty in a criminal action is recorded, in
English practice, in these words, or in the abbrevi-
ated form "po. se."
PONTAGE. In old English law. Duty paid for
the reparation of bridges; also a due to the lord
of the fee for persons or merchandises that pass
over rivers, bridges, etc. Cowell.
PONTIBUS REPARANDIS. An old writ directed
to the sheriff, commanding him to charge one or
more to repair a bridge.
POOL. A combination of persons or corpora-
tions engaged in the same business, or for the
purpose of engaging in a particular business or
commercial or speculative venture, where all
contribute to a common fund, or place their hold-
ings of a given stock or other security in the
hands and control of a managing member or com-
mittee, with the object of eliminating competition
as between the several members of the pool, or of
establishing a monopoly or controlling prices or
rates by the weight and power of their combined
capital, or of raising or depressing prices on the
stock market, or simply with a view to the suc-
cessful conduct of an enterprise too great for the
capital of any member individually, and on an
agreement for the division of profits or losses
among the members, either equally or pro rata.
Also, a similar combination not embracing the
idea of a pooled or contributed capital, but simply
the elimination of destructive competition between
the members by an agreement to share or divide
the profits of a given business or venture, as, for
example, a contract between two or more compet-
ing railroads to abstain from "rate wars" and
(usually) to maintain fixed rates, and to divide
their earnings from the transportation of freight
in fixed proportions. Green v. Higham, 161 Mo.
333, 61 S.W. 798; Mollyneaux v. Wittenberg, 39
Neb. 547, 58 N.W. 205; Kilbourn v. Thompson,
103 U.S. 195, 26 L.Ed. 377; American Biscuit Co.
v. Klotz, C.C.La., 44 F. 725; U. S. v. Trans-Mis-
souri Freight Ass'n, 7 C.C.A. 15, 58 F. 65, 24 L.R.A.
73; Georgia Fruit Exchange v. Turnipseed, 9 Ala.
App. 123, 62 So. 542, 546.
In various methods of gambling, a "pool" is a
sum of money made up of the stakes contributed
by various persons, the whole of which is then
wagered as a stake on the event of a race, game,
or other contest, and the winnings (if any) are di-
vided among the contributors to the pool pro rata.
Or it is a sum similarly made up by the contribu-
tions of several persons, each of whom then
makes his guess or prediction as to the event of a
future contest or hazard, the successful better tak-
ing the entire pool. Ex parte Powell, 43 Tex.Cr.R.
391, 66 S.W. 298; Com. v. Ferry, 146 Mass. 203,
15 N.E. 484; Lacey v. Palmer, 93 Va. 159, 24 S.E.
930, 31 L.R.A. 822, 57 Am.St.Rep. 795; People v.
McCue, 87 App.Div. 72, 83 N.Y.S. 1088; Common-
wealth v. Sullivan, 218 Mass. 281, 105 N.E. 895,
Ann.Cas.1916B, 98.
A body of standing water, without a current or
issue, accumulated in a natural basin or depres-
sion in the earth, and not artificially formed.
Stephens v. State, 81 Tex.Cr.R. 177, 194 S.W. 400,
401. See Pond.
POOLING CONTRACTS. Agreements between
competing railways for a division of the traffic, or
for a pro rata distribution of their earnings unit-
ed into a "pool" or common fund. 15 Fed. 667,
note. See Pool.
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POOLROOM
POOLROOM. A room in which pools on races
are sold. In another sense, a room where the
game of pool is played. Town of Eros v. Powell,
137 La. 342, 68 So. 632, 634.
POOR. As used in law, this term denotes those
who are so destitute of property or of the means
of support, either from their own labor or the
care of relatives, as to be a public charge, that is,
dependent either on the charity of the general
public or on maintenance at the expense of the
public. The term is synonymous with "indigent
persons" and "paupers." State v. Osawkee Tp.,
14 Kan. 421, 19 Am.Rep. 99; In re Hoffen's Es-
tate, 70 Wis. 522, 36 N.W. 407; Polk County v.
Owen, 187 Iowa 220, 174 N.W. 99, 107.
POOR DEBTOR'S OATH. An oath allowed, in
some jurisdictions, to a person who is arrested for
debt. On swearing that he has not property
enough to pay the debt, he is set at liberty.
POOR LAW. That part of the law which relates
to the public or compulsory relief of paupers.
POOR RATE. In English law. A tax levied by
parochial authorities for the relief of the poor.
POOR-LAW BOARD. The English official body
appointed under St. 10 & 11 Vict. c. 109, passed
in 1847, to take the place of the poor-law commis-
sioners, under whose control the general manage-
ment of the poor, and the funds for their relief
throughout the country, had been for some years
previously administered. The poor-law board is
now superseded by the local government board,
which was established in 1871 by St. 34 & 35 Vict.
c. 70. 3 Steph.Comm. 49.
POOR-LAW GUARDIANS. See Guardians of the
Poor.
POP SHOTS. The explosion of light charges of
dynamite to break up large fragments of rock.
Brede v. Minnesota Crushed Stone Co., 146 Minn.
406, 178 N.W. 820, 821.
POPE. The bishop of Rome, and supreme head
of the Roman Catholic Church. 4 Steph.Comm.
(7th Ed.) 168-185.
POPE NICHOLAS' TAXATION. The first fruits
(primitice or annates) were the first year's profits
of all the spiritual preferments in the kingdom
according to a rate made by Walter, bishop of
Norwich, in the time of Pope Innocent II., and
afterwards advanced in value in the time of Pope
Nicholas IV. This last valuation was begun A. D.
1288, and finished 1292, and is still preserved in
the exchequer. The taxes were regulated by it
till the survey made in the twenty-sixth year of
Henry VIII. 2 Steph.Comm. 567.
POPERY. The religion of the Roman Catholic
Church, comprehending doctrines and practices.
POPULACE, or POPULACY. The vulgar; the
multitude.
POPULAR ACTION. An action for a statutory
penalty or forfeiture, given to any such person
or persons as will sue for it; an action given
to the people in general. 3 Bl.Comm. 161.
POPULAR SENSE. In reference to the construc-
tion of a statute, this term means that sense which
people conversant with the subject-matter with
which the statute is dealing would attribute to it.
1 Exch.Div. 248; Westerlund v. Black Bear Mining
Co., C.C.A.Colo., 203 F. 599, 605.
POPULISCITUM. Lat. In Roman law. A law
enacted by the people; a law passed by an assem-
bly of the Roman people, in the comitia centuria-
ta, on the motion of a senator; differing from a
plebiscitum, in that the latter was always pro-
posed by one of the tribunes.
POPULUS. Lat. In Roman law. The people;
the whole body of Roman citizens, including as
well the patricians as the plebeians.
PORCION. In Spanish law. A part or portion; a
lot or parcel; an allotment of land. Downing v.
Diaz, 80 Tex. 436, 16 S.W. 49.
PORNOGRAPHIC. That which is of or pertaining
to obscene literature; obscene; licentious. Peo-
ple on Complaint of Savery v. Gotham Book Mart,
158 Misc. 240, 285 N.Y.S. 563, 567.
PORRECTING. Producing for examination or
taxation, as porrecting a bill of costs, by a proctor.
PORT. A place for the lading and unlading of the
cargoes of vessels, and the collection of duties or
customs upon imports and exports. A place, ei-
ther on the seacoast or on a river, where ships
stop for the purpose of loading and unloading,
from whence they depart, and where they finish
their voyages. Devato v. Barrels of Plumbago,
D.C.N.Y., 20 F. 515; Petrel Guano Co. v. Jarnette,
C.C.N.C., 45 F. 675.
While Rev.St. §1 4178, 4334 (46 U.S.C.A.  47, 287),
declare that the word "port" may mean the place where a
vessel is built, or where one or more of the owners reside,
a "port," in ordinary significance, is a place where strips
are accustomed to load and unload goods, or to take on and
let off passengers, and where persons and merchandise are
allowed to pass into and out of the realm, and implies that
it is something more than a roadstead; therefore a place
on the high seas, fixed by latitude and longitude, where
vessels were to be met and provisioned and coaled, is not
a port. Hamburg-American Steam Packet Co. v. United
States, C.C.A.N.Y., 250 F. 747, 759.
French Maritime Law
Burden, (of a vessel;) size and capacity.
General
Foreign port. One exclusively within the juris-
diction of a foreign nation, hence one without the
United States. Bigley v. New York & P. R. S. S.
Co., D.C.N.Y., 105 F. 74. But the term is also
applied to a port in any state other than the state
where the vessel belongs or her owner resides.
The Canada, D.C.Or., 7 F. 124; The Lulu, 10 Wall.
200, 19 L.Ed. 906; Negus v. Simpson, 99 Mass.
393.
Home port. The port at which a vessel is reg-
istered or enrolled or where the owner resides.
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PORTMEN
Port charges, dues, or tolls. Pecuniary exac-
tions upon vessels availing themselves of the com-
mercial conveniences and privileges of a port.
Wilkins v. Trafikaktiebolaget Grangesbert Okelo-
sund, C.C.A., 10 F.2d 129, 131; The Vigo, D.C.
N.Y., 257 F. 586, 587; Dampskibs Aktieselskabet
Jeanette Skinner v. Munson S. S. Line, C.C.A.
N.Y., 20 F.2d 345, 347; Christianssand Shipping
Co. v. Marshall, D.C.Pa., 22 F.2d 192, 194.
Port-greve. The chief magistrate of a sea-port
town is sometimes so called.
Port of delivery. In maritime law. The port
which is to be the terminus of any particular
voyage, and where the vessel is to unlade or de-
liver her cargo, as distinguished from any port
at which she may touch, during the voyage, for
other purposes. The Two Catharines, 24 Fed.
Cas. 429.
Port of departure. As used in the United States
statutes requiring a ship to procure a bill of health
from the consular officer at the place of departure,
is not the last port at which the ship stops while
bound for the United States, but the port from
which she cleared. The Dago, 10 C.C.A. 224, 61
F. 986.
Port of destination. In maritime law and ma-
rine insurance, the term includes both ports which
constitute the termini of the voyage, the home
port and the foreign port to which the vessel is
consigned as well as any usual stopping places for
the receipt or discharge of cargo. Gookin v. New
England Mut. Marine Ins. Co., 12 Gray, Mass.,
501, 74 Am.Dec. 609.
Port of discharge, in a policy of marine insur-
ance, means the place where the substantial part
of the cargo is discharged, although there is an in-
tent to complete the discharge at another basin.
Bramhall v. Sun Mut. Ins. Co., 104 Mass. 510, 6
Am.Rep. 261.
Port of entry. One of the ports designated by
law, at which a custom-house or revenue office is
established for the execution of the laws imposing
duties on vessels and importations of goods.
Cross v. Harrison, 16 How. 164, 14 L.Ed. 889.
Port-reeve, or port-warden. An officer main-
tained in some ports to oversee the administration
of the local regulations; a sort of harbor-master.
Port-risk. In marine insurance. A risk upon
a vessel while lying in port, and before she has
taken her departure upon another voyage. Nelson
v. Sun Mut. Ins. Co., 71 N.Y. 459.
Port toll. The toll paid for bringing goods into
a port.
PORTATICA. In English law. The generic name
for port duties charged to ships. Harg.Law Tract,
64.
PORTEOUS. In old Scotch practice. A roll or
catalogue containing the names of indicted per-
sons, delivered by the justice-clerk to the coroner,
to be attached and arrested by him. Otherwise
called the "Porteous Roll." Bell.
PORTER. In old English law, this title was given
to an officer of the courts who carried a rod or
staff before the justices.
A person who keeps a gate or door; as the
door-keeper of the houses of parliament.
One who carries or conveys parcels, luggage,
etc., particularly from one place to another in the
same town.
PORTERAGE. A kind of duty formerly paid at
the English custom-house to those who attended
the water-side, and belonged to the package-office;
but it is now abolished. Also the charge made for
sending parcels.
PORTIO LEGITIMA. Lat. In the civil law. The
birthright portion; that portion of an inheritance
to which a given heir is entitled, and of which he
cannot be deprived by the will of the decedent,
without special cause, by virtue merely of his re-
lationship to the testator.
PORTION. The share falling to a child from a
parent's estate or the estate of any one bearing a
similar relation. Lewis's Appeal, 108 Pa. 136; In
re Miller's Will, 2 Lea, Tenn., 57; Stubbs v. Abel,
114 Or. 610, 233 P. 852, 857. An allotted part;
a share, a parcel; a division in a distribution;
a share of an estate or the like, received by gift
or inheritance. Lecompte v. Davis' Ex'r, 285 Ky.
433, 148 S.W.2d 292, 295.
Portion is especially applied to payments made to young-
er children out of the funds comprised in their parents'
marriage settlement, and in pursuance of the trusts there-
of. Mozley & Whiteley.
PORTION DISPONIBLE. Fr. In French law.
That part of a man's estate which he may be-
queath to other persons than his natural heirs.
A parent leaving one legitimate child may dispose
of one-half only of his property; one leaving two,
one-third only; and one leaving three or more,
one-fourth only; and it matters not whether the
disposition is inter vivos or by will.
PORTIONER.
Old English law. A minister who serves a
benefice, together with others; so called because
he has only a portion of the tithes or profits of
the living; also an allowance which a vicar com-
monly has out of a rectory or impropriation.
Cowell.
Scotch law. The proprietor of a small feu or
portion of land. Bell.
PORTIONIBUS. Is properly employed to mean
a portion of the tithes of one parish claimed by
the rector of another parish. 4 CL & F. 1.
PORTIONIST. One who receives a portion; the
allottee of a portion. One of two or more in-
cumbents of the same ecclesiastical benefice.
PORTMEN. The burgesses of Ipswich and of the
Cinque Ports were so called.
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PORTMOTE
PORTMOTE. In old English law. A court held
in ports or haven towns, and sometimes in inland
towns also. Cowell; Blount.
PORTORIA. In the civil law. Duties paid in
ports on merchandise. Taxes levied in old times
at city gates. Tolls for passing over bridges.
PORTSALE. In old English law. An auction; a
public sale of goods to the highest bidder; also a
sale of fish as soon as it is brought into the haven.
Cowell.
PORTSOKA, or PORTSOKEN. The suburbs of a
city, or any place within its jurisdiction. Somner;
Cowell.
PORTUS EST LOCUS IN QUO EXPORTANTUR
IMPORTANTUR MERCES. 2 Inst. 148. A
port is a place where goods are exported or im-
ported.
POSITIVE. Laid down, enacted, or prescribed.
Express or affirmative. Direct, absolute, explicit.
As to positive "Condition," "Fraud," "Proof,"
and "Servitude," see those titles.
POSITIVE EVIDENCE. Direct proof of the fact
or point in issue; evidence which, if believed, es-
tablishes the truth or falsehood of a fact in issue,
and does not arise from any presumption. It is
distinguished from circumstantial evidence. 3
Bouv. Inst. no. 3057; Cooper v. Holmes, 71 Md.
20, 17 A. 711; Com. v. Webster, 5 Cush., Mass.,
310, 52 Am.Dec. 711.
POSITIVE LAW. Law actually and specifically
enacted or adopted by proper authority for the
government of an organized jural society.
"A 'law,' in the sense in which that term is employed in
jurisprudence, is enforced by a sovereign political author-
ity. It is thus distinguished not only from all rules which,
like the principles of morality and the so-called laws of
honor and of fashion, are enforced by an indeterminate
authority, but also from all rules enforced by a determi-
nate authority which is either, on the one hand, super-
human, or, on the other hand, politically subordinate. In
order to emphasize the fact that 'laws,' in the strict sense
of the term, are thus authoritatively imposed, they are
described as positive laws." Holl.Jur. 37.
POSITIVE WRONG. A wrongful act, wilfully
committed. Padgett v. Missouri Motor Distribut-
ing Corporation, Mo., 177 S.W.2d 490, 492.
POSITIVI JURIS. Lat. Of positive law, "That
was a rule positivi juris; I do not mean to say
an unjust one." Lord Ellenborough, 12 East, 639.
POSITO UNO OPPOSITORUM, NEGATUR AL-
TERUM. One of two opposite positions being
affirmed, the other is denied. 3 Rolle, 422.
POSSE. Lat. A possibility. A thing is said to
be in posse when it may possibly be; in esse
when it actually is. Guidry v. Caire, 181 La. 895,
160 So. 622.
POSSE COMITATUS. Lat. The power or force
of the county. The entire population of a county
above the age of fifteen, which a sheriff may sum-
mon to his assistance in certain cases; as to aid
him in keeping the peace, in pursuing and arrest-
ing felons, etc. 1 Bl.Comm. 343; Com. v, Martin,
7 Pa.Dist.R. 224.
POSSESS. To occupy in person; to have in one's
actual and physical control; to have the exclusive
detention and control of; to have and hold as
property; to have a just right to; to be master
of; to own or be entitled to. Fuller v. Fuller,
84 Me. 475, 24 A. 946; Bingham's Adm'r v. Com-
monwealth, 196 Ky. 318, 244 S.W. 781, 785; Davis
v. State, 102 Tex.Cr.R. 546, 278 S.W. 848, 849;
Ex parte Okahara, 191 Cal. 353, 216 P. 614, 617;
Melvin v. Scowley, 213 Ala. 414, 104 So. 817, 820;
Nevin v. Louisville Trust Co., 258 Ky. 187, 79 S.W.
2d 688, 689.
POSSESSED. This word is applied to the right
and enjoyment of a termor, or a person having a
term, who is said to be possessed, and not seised.
Bac.Tr. 335; Poph. 76; Dyer, 369.
"Possessed" is a variable term in the law, and has dif-
ferent meanings as it is used in different circumstances. It
sometimes implies a temporary interest in lands; as we
say a man is possessed, in contradistinction to being seised.
It sometimes implies the corporal having; as we say a man
is seised and possessed. But it sometimes implies no more
than that one has a property in a thing; that he has it as
owner; that it is his. Thompson v. Moran, 44 Mich. 603,
7 N.W. 180; In re Dillingham's Estate, 196 Cal. 525, 238
P. 367, 369; O'Connor v. Halpin, 166 Iowa, 101, 147 N.W.
185, 186; United States Trust Co. v. Gulick, 179 N.Y.S. 769,
771, 107 Misc. 316; Thomson v. Fidelity Trust Co., 268 Pa.
203, 110 A. 770, 773.
POSSESSIO. Lat.
Civil Law
That condition of fact under which one can
exercise his power over a corporeal thing at his
pleasure, to the exclusion of all others. This con-
dition of fact is called "detention," and it forms
the substance of possession in all its varieties.
Mackeld. Rom. Law, § 238.
"Possession," in the sense of "detention," is the actual
exercise of such a power as the owner has a right to exer-
cise. The term "possessio" occurs in the Roman jurists
in various senses. There is possessio simply, and possessio
civilis, and possessio naturalis. Possessio denoted, orig-
inally, bare detention. But this detention, under certain
conditions, becomes a legal state, inasmuch as it leads to
ownership, through usucapio. Accordingly, the word "pos-
sessio," which required no qualification so long as there
was no other notion attached to possessio, requires such
qualification when detention becomes a legal state. This
detention, then, when it has the conditions necessary to
usucapio, is called "possessio civilis;" and all other pos-
sessio as opposed to civilis is naturalis. Sandars, Just.Inst.
274. Wharton.
Old English law. Possession; seisin. The de-
tention of a corporeal thing by means of a physi-
cal act and mental intent, aided by some support
of right. Bract. fol. 38b.
General
Pedis possessio. A foothold; an actual posses-
sion of real property, implying either actual oc-
cupancy or enclosure and use. Lawrence v. Ful-
ton, 19 Cal. 690; Porter v. Kennedy, 1 McMul.,
S.C., 357.
Possessio bona fide. Possession in good faith.
Possessio mala fide, possession in bad faith. A
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possessor bona fide is one who believes that no
other person has a better right to the possession
than himself. A possessor mala fide is one who
knows that he is not entitled to the possession.
Mackeld. Rom. Law, § 243.
Possessio bonorum. In the civil law. The pos-
session of goods. More commonly termed "bono-
rum possessio." (q. v.).
Possessio civilis. In Roman law. A legal pos-
session, i. e., a possessing accompanied with the
intention to be or to thereby become owner; and,
as so understood, it was distinguished from "pos-
sessio naturalis," otherwise called "nuda deten-
tio," which was a possessing without any such.
intention. Possessio civilis was the basis of usuca-
pio or of longi temporis possessio, and was usual-
ly (but not necessarily) adverse possession.
Brown.
Possessio fratris. The possession or seisin of
a brother; that is, such possession of an estate
by a brother as would entitle his sister of the
whole blood to succeed him as heir, to the exclu-
sion of a half-brother. Hence, derivatively, that
doctrine of the older English law of descent which
shut out the half-blood from the succession to
estates; a doctrine which was abolished by the de-
scent act, 3 & 4 Wm. IV. c. 106. 1 Steph.Comm.
385; Broom, Max. 532.
Possessio longi temporis. See Usucapio.
Possessio naturalis. See Possessio Civilis.
POSSESSIO EST QUASI PEDIS POSITIO. Pos-
session is, as it were, the position of the foot. 3
Co. 42.
POSSESSIO FRATRIS DE FEODO SIMPLICI
FACIT SOROREM ESSE IUEREDEM. The
brother's possession of an estate in fee-simple
makes the sister to be heir. 3 Coke, 41; Broom,
Max. 532.
POSSESSIO PACIFICA PER ANNOS 60 FACIT
JUS. Peaceable possession for sixty years gives a
right. Jenk. Cent. 26.
POSSESSION. The detention and control, or the
manual or ideal custody, of anything which may
be the subject of property, for one's use and en-
joyment, either as owner  as the proprietor
of a qualified right in it, and either held personally
or by another who exercises it in one's place and
name. Act or state of possessing. That condition
of facts under which one can exercise his power
over a corporeal thing at his pleasure to the ex-
clusion of all other persons. Starits v. Avery,
204 Iowa 401, 213 N.W. 769, 771; Schenk v. State,
106 Tex.Cr.R. 564, 293 S.W. 1101, 1102; State v.
Compton, Mo.App., 297 S.W. 413, 414; Nevin v.
Louisville Trust Co., 258 Ky. 187, 79 S.W.2d 688,
689.
In the older books, "possession" is sometimes used as
the synonym of "seisin;" but, strictly speaking, they are
entirely different terms. "The difference between posses-
sion and seisin is : Lessee for years is possessed, and yet
the lessor is still seised; and therefore the terms of law
are that of chattels a man is possessed, whereas in feoff-
ments, gifts in tail, and leases for life he is described as
'seised.' " Noy. Max. 64.
"Possession" is used in some of the books in the sense
of property. "A possession is an hereditament or chattel."
Finch, Law, b. 2, c. 3.
Possession of liquor which is made unlawful is posses-
sion under some claim of right, control, or dominion, with
knowledge of facts. Schwartz v. State, 192 Wis. 414, 212
N.W. 664, 665. Taking a drink of intoxicating liquor on
invitation of owner thereof does not constitute criminal
"possession." Colbaugh v. U. S., C.C.A.Okl., 15 F.2d 929,
931; State v. Williams, 117 Or. 238, 243 P. 563; Sizemore
v. Commonwealth, 202 Ky. 273, 259 S.W. 337, 342; Bra-
zeale v. State, 133 Miss. 171, 97 So. 525, 526; Harness v.
State, 130 Miss. 673, 95 So. 64; State v. McAllister, 187
N.C. 400, 121 S.E. 739, 740; People v. Leslie, 239 Mich. 334,
214 N.W. 128.
Actual possession. Exists where the thing
is in the immediate occupancy of the party. Simp-
son v. Blount, 14 N.C. 34; Field Furniture Co. v.
Community Loan Co., 257 Ky. 825, 79 S.W.2d 211,
215.
Adverse possession. The actual, open, and no-
torious possession and enjoyment of real proper:
ty, or of any estate lying in grant, continued for
a certain length of time, held adversely and in de-
nial and opposition to the title of another claim-
ant, or under circumstances which indicate an as-
sertion or color of right or title on the part of the
person maintaining it, as against another person
who is out of possession. Hall v. Lavat, 301 Mo.
675, 257 S.W. 108, 111; W. T. Carter & Bro. v.
Richardson, Tex.Civ.App., 225 S.W. 816, 817; Bax-
ter v. Girard Trust Co., 288 Pa. 256, 135 A. 620, 621,
49 A.L.R. 1011; Mendel v. Poland, 200 Mich. 571,
166 N.W. 910, 912.
Chose in possession. A thing (subject of per-
sonal property) in actual possession, as distin-
guished from a "chose in action," which is not
presently in the owner's possession, but which he
has a right to demand, receive, or recover by suit.
Civil possession. In modern civil law and in
the law of Louisiana, that possession which exists
when a person ceases to reside in a house or on
the land which he occupied, or to detain the
movable which he possessed, but without intend-
ing to abandon the possession. It is the detention
of a thing by virtue of a just title and under the
conviction of possessing as owner. Civ.Code La.
art. 3429 et seq. A fiction resulting from the reg-
istry of the title of the original owner. Baldwin
Lumber Co. v. Dalferes, 138 La. 507, 70 So. 493,
499; Maisonneuve v. Dalferes, 138 La. 527, 70 So.
500, 501.
Constructive possession. Possession not actual
but assumed to exist, where one claims to hold
by virtue of some title, without having the actual
occupancy, as, where the owner of a tract of land,
regularly laid out, is in possession of a part, he is
constructively in possession of the whole. Flem-
ing v. Maddox, 30 Iowa 241.
Corporeal possession. The continuing exercise
of a claim to the exclusive use of a material thing.
The elements of this possession are first, the men-
tal attitude of the claimant, the intent to possess,
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to appropriate to oneself; and second, the ef-
fective realization of this attitude. All the au-
thorities agree that an intent to exclude others
must coexist with the external facts, and must be
fulfilled in the external physical facts in order
to constitute possession. State v. Wagoner, 123
Kan. 591, 256 P. 957, 958.
Derivative possession. The kind of possession
of one who is in the lawful occupation or custody
of the property, but not under a claim of title of
his own, but under a right derived from another,
as, for example, a tenant, bailee, licensee, etc.
Dispossession. The act of ousting or removing
one from the possession of property previously
held by him, which may be tortious and unlawful,
as in the case of a forcible amotion, or in pur-
suance of law, as where a landlord "dispossesses"
his tenant at the expiration of the term or for oth-
er cause by the aid of judicial process.
Estate in possession. An estate whereby a
present interest passes to and resides in the ten-
ant, not depending on any subsequent circum-
stance or contingency. 2 Bl.Comm. 163. An es-
tate where the tenant is in actual pernancy, or
receipt of the rents and other advantages arising
therefrom. 2 Crabb, Real Prop. p. 958, § 2322.
Eberts v. Fisher, 44 Mich. 551, 7 N.W. 211; Sage
v. Wheeler, 3 App.Div. 38, 37 N.Y.S. 1107.
Exclusive possession. See Exclusive Posses-
sion.
Hostile possession.  This term, as applied to an
occupant of real estate holding adversely, is not
construed as implying actual enmity or ill will,
but merely means that he claims to hold the pos-
session in the character of an owner, and there-
fore denies all validity to claims set up by any
and all other persons. Ballard v. Hansen, 33 Neb.
861, 51 N.W. 295; Mittet v. Hansen, 178 Wash.
541, 35 P.2d 93, 95.
Naked possession. The actual occupation of
real estate, but without any apparent or colorable
right to hold and continue such possession; spo-
ken of as the lowest and most imperfect degree
of title. 2 Bl.Comm. 195; Birdwell v. Burleson,
31 Tex.Civ.App. 31, 72 S.W. 446.
Natural possession. That by which a man de-
tains a thing corporeally, as, by occupying a
house, cultivating ground, or retaining a movable
in possession; natural possession is also defined
to be the corporeal detention of a thing which we
possess as belonging to us, without any title to
that possession or with a title which is void. Civ.
Code La. arts. 3428, 3430. Railroad Co. v. Le Ros-
en, 52 La.Ann. 192, 26 So. 854.
Open possession. Possession of real property
is said to be "open" when held without conceal-
ment or attempt at secrecy, or without being cov-
ered up in the name of a third person, or other-
wise attempted to be withdrawn from sight, but
in such a manner that any person interested can
ascertain who is actually in possession by prop-
er observation and inquiry. See Bass v. Pease, 79
Ill.App. 318
Peaceable possession. See Peaceable.
Pedal possession. In establishing title by ad-
verse possession this means actual possession;
that is, living upon or actually occupying the land,
or placing improvements directly upon it. Schaef-
fer v. Williams, Tex., 208 S.W. 220, 224.
Possession money. In English law. The man
whom the sheriff puts in possession of goods tak-
en under a writ of fieri facias is entitled, while
he continues so in possession, to a certain sum of
money per diem, which is thence termed "posses-
sion money." The amount is 3s. 6d. per day if
he is boarded, or 5s. per day if he is not boarded.
Brown.
Possession, writ of. Where the judgment in an
action of ejectment is for the delivery of the land
claimed, or its possession, this writ is used to put
the plaintiff in possession. It is in the nature of
execution.
Quasi possession. Is to a right what posses-
sion is to a thing, it is the exercise or enjoyment
of the right, not necessarily the continuous exer-
cise, but such an exercise as shows an intention
to exercise it at any time when desired. Sweet.
Scrambling possession. By this term is meant
a struggle for possession on the land itself, not
such a contest as is waged in the courts, or pos-
session gained by an act of trespass, such as
building a fence. Lobdell v. Keene, 85 Minn. 90,
88 N.W. 426.
Unity of possession. Joint possession of two
rights by several titles, as where a lessee of land
acquires the title in fee-simple, which extinguishes
the lease. The term also describes one of the es-
sential properties of a joint estate, each of the ten-
ants having the entire possession as well of every
parcel as of the whole. 2 Bl.Comm. 182.
Vacant possession. An estate which has been
abandoned, vacated, or forsaken by the tenant.
The abandonment must be complete in order to
make the possession vacant, and, therefore, if
the tenant have goods on the premises it will not
be so considered. 2 Chitty, Bail. 177; 2 Stria. 1064.
POSSESSION IS A GOOD TITLE WHERE NO
BETTER TITLE APPEARS. 20 Vin.Abr. 278.
POSSESSION IS NINE-TENTHS OF THE LAW.
This adage is not to be taken as true to the full
extent, so as to mean that the person in posses-
sion can only be ousted by one whose title is nine
times better than his, but it places in a strong
light the legal truth that every claimant must
succeed by the strength of his own title, and not
by the weakness of his antagonist's. Wharton.
POSSESSION VAUT TITRE. Fr. In English
law, as in most systems of jurisprudence, the
fact of possession raises a prima facie title or a
presumption of the right of property in the thing
possessed. In other words, the possession is as
good as the title (about.) Brown.
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POSSIBILITY
POSSESSOR. One who possesses; one who has
possession.
POSSESSOR BONA FIDE. He is a bona fide
possessor who possesses as owner by virtue of
an act sufficient in terms to transfer property,
the defects of which he was ignorant of. He ceas-
es to be a bona fide possessor from the moment
these defects are made known to him, or are de-
clared to him by a suit instituted for the recovery
of the thing by the owner. Civ.Code La. art. 503.
POSSESSOR MALA FIDE. The possessor in bad
faith is he who possesses as master, but who as-
sumes this quality, when he well knows that he
has no title to the thing, or that his title is vicious
and defective. Civ.Code La. art. 3452.
POSSESSORY. Relating to possession; founded
on possession; contemplating or claiming posses-
sion.
Possessory action. See next title.
Possessory claim. The title of a pre-emptor
of public lands who has filed his declaratory state-
ment but has not paid for the land. Enoch v.
Spokane Falls & N. Ry. Co., 6 Wash. 393, 33 P. 966.
Possessory judgment. In Scotch practice. A
judgment which entitles a person who has unin-
terruptedly been in possession for seven years to
continue his possession until the question of right
be decided in due course of law. Bell.
Possessory lien. A lien is possessory where
the creditor has the right to hold possession of
the specific property until satisfaction of the debt.
One which attaches to such articles of another's as may
be at the time in the possession of the lienor, as, for ex-
ample, an attorney's lien on the papers and documents of
the client in his possession. Wood Sewing Mach. Co. v.
Boutelle, 56 Vt. 570, 48 Am. Rep. 821.
POSSESSORY ACTION. An action which has
for its immediate object to obtain or recover the
actual possession of the subject-matter; as dis-
tinguished from an action which merely seeks to
vindicate the plaintiff's title, or which involves
the bare right only; the latter being called a "pe-
titory" action.
An action founded on possession. Trespass for
injuries to personal property is called a "posses-
sory" action, because it lies only for a plaintiff
who, at the moment of the injury complained of,
was in actual or constructive, immediate, and ex-
clusive possession. 1 Chit.P1. 168, 169.
Admiralty practice. One which is brought to
recover the possession of a vessel, had under a
claim of title. The Tilton, 5 Mason, 465, Fed.Cas.
No.14,054; 1 Kent, Comm. 371.
Louisiana. An action by which one claims to
be maintained in the possession of an immovable
property, or of a right upon or growing out of it,
when he has been disturbed, or to be reinstated
to that possession, when he has been divested or
evicted. Code Prac.La. art. 6.
Old English law. A real action which had for
its object the regaining possession of the freehold,
of which the demandant or his ancestors had been
unjustly deprived by the present tenant or pos-
sessor thereof.
Scotch law. An action for the vindication and
recovery of the possession of heritable or movable
goods; e. g., the action of molestation. Paters.
Comp.
POSSIBILITAS. Lat. Possibility; a possibility.
Possibilitas post dissolutionem executionis nun-
quam reviviscatur, a possibility will never be re-
vived after the dissolution of its execution. 1
Rolle, 321. Post executionem status, lex non
patitur possibilitatem, after the execution of an
estate the law does not suffer a possibility. 3
Bulst. 108.
POSSIBILITY. An uncertain thing which may
happen. A contingent interest in real or person-
al estate. Kinzie v. Winston, 14 Fed.Cas. 651;
Bodenhamer v. Welch, 89 N.C. 78; Needles v.
Needles, 7 Ohio St. 442, 70 Am.Dec. 85.
It is either near, (or ordinary,) as where an es-
tate is limited to one after the death of another,
or remote, (or extraordinary,) as where it is lim-
ited to a man, provided he marries a certain wo-
man, and that she shall die and he shall marry
another.
Bare possibility. The same as a "naked" possi-
bility. See infra.
Naked possibility. A bare chance or expecta-
tion of acquiring a property or succeeding to an
estate in the future, but without any present
right in or to it which the law would recognize
as an estate or interest. Rogers v. Felton, 98
Ky. 148, 32 S.W. 406.
Possibility coupled with an interest. An ex-
pectation recognized in law as an estate or in-
terest, such as occurs in executory devises and
shifting or springing uses: such a possibility may
be sold or assigned.
Possibility of reverter. This term denotes no es-
tate, but only a possibility to have the estate at a
future time. Of such possibilities there are sever-
al kinds, of which two are usually denoted by the
term under consideration, (1) the possibility that
a common-law fee may return to the grantor by
breach of a condition subject to which it was
granted, (2) the possibility that a common-law
fee other than a fee simple may revert to the gran-
tor by the natural determination of the fee. Sor-
rels v. McNally, 89 Fla. 457, 105 So. 106, 109; Des
Moines City Ry. Co. v. City of Des Moines, 183
Iowa, 1261, 159 N.W. 450, 452, L.R.A.1918D, 839;
Trustees of Calvary Presbyterian Church of Buf-
falo v. Putnam, 221 App.Div. 502, 224 N.Y.S. 651,
654.
Possibility on a possibility. A remote possibil-
ity, as if a remainder be limited in particular to
A.'s son John, or Edward, it is bad if he have no
son of that name, for it is too remote a possibility
that he should not only have a son, but a son of
that particular name. 2 Coke, 51.
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POSSIBLE
POSSIBLE. Capable of existing, happening, be-
ing, becoming or coming to pass; feasible, not
contrary to nature of things; neither necessitated
nor precluded; free to happen or not; contrasted
with necessary and impossible. In another sense,
the word denotes extreme improbability, without
excluding the idea of feasibility. It is also some-
times equivalent to "practicable" or "reasonable,"
as in some cases where action is required to be
taken "as soon as possible." Norris v. Elmdale
Elevator Co., 216 Mich. 548, 185 N.W. 696, 698;
Miller v. Southern Express Co., 99 S.C. 333, 83 S.
E. 449, 451; National Enameling & Stamping Co.
v. Zirkovics, C.C.A.Mo., 251 F. 184, 189. Guidry v.
Caire, 181 La. 895, 160 So. 622.
POST. Lat. After; occurring in a report or a
text-book, is used to send the reader to a subse-
quent part of the book.
POST, n. A conveyance for letters or dispatches.
The word is derived from "positi," the horses
carrying the letters or dispatches being kept or
placed at fixed stations. The word is also ap-
plied to the person who conveys the letters to the
houses where he takes up and lays down his
charge, and to the stages or distances between
house and house. Hence the phrases, post-boy,
post-horse, post-house, etc. Wharton.
A military establishment where a body of troops
is permanently fixed. Caldwell's Case, 19 Wall.
268, 22 L.Ed. 114; a military post is synonymous
with military station. U. S. v. Phisterer, 94 U.S.
219, 24 L.Ed. 116; Hines v. Mikell, C.C.A.S.C., 259
F. 28, 31.
A landmark. Cornelious v. State, 22 Ala.App.
150, 113 So. 475, 476; U. S. v. Sherman, C.C.A.S.D.,
288 F. 497, 501.
POST, v. To bring to the notice or attention of
the public by affixing to a post or wall, or putting
up in some public place; to placard. City of
Pittsburgh v. Pittsburgh Rys. Co., 259 Pa. 558, 103
A. 372, 373; Stanford v. State, 99 Tex.Cr.R. 111,
268 S.W. 161, 162; Iowa-Missouri Grain Co. v.
Powers, 198 Iowa, 208, 196 N.W. 979, 980, 33 A.L.R.
1268.
POST-ACT. An after-act; an act done after-
wards.
POST CONQUESTUM. After the Conquest.
Words inserted in the king's title by King Edward
I., and constantly used in the time of Edward III.
Tomlins.
POST-DATE. To date an instrument as of a
time later than that at which it is really made.
POST-DATED CHECK. One delivered prior to
its date, generally payable at sight or on pres-
entation on or after day of its date. It differs
from an ordinary check by carrying on its face
implied notice that there is no money presently
on deposit available to meet it, but with implied
assurance that such funds will exist when check
becomes due. Lovell v. Eaton, 99 Vt. 255, 133 A.
742, 743; State v. Langer, 46 N.D. 462, 177 N.W.
408, 419.
POST DIEM. After the day; as, a plea of pay-
ment post diem, after the day when the money
became due. Com.Dig. "Pleader," 2.
Old Practice. The return of a writ after the
day assigned. A fee paid in such case. Cowell.
POST DISSEISIN. In English law. The name of
a writ, which lies for him who, having recovered
lands and tenements by force of a novel disseisin,
is again disseised by a former disseisor. Jacob.
POST ENTRY. When goods are weighed or
measured, and the merchant has got an account
thereof at the custom-house, and finds his entry
already made too small, he must make a post or
additional entry for the surplusage, in the same
manner as the first was done. As a merchant is
always in time, prior to the clearing of the vessel,
to make his post, he should take care not to over-
enter, to avoid as well the advance as the trouble
of getting back the overplus. McCul.Dict.
POST EXCHANGE. A voluntary association of
companies, detachments, or other army units at
military posts, permitted by a special regulation
of the War Department for the purpose of con-
ducting for the benefit of the members of such
units what is in effect a co-operative store and
place of entertainment. Keane v. U. S., C.C.A.Va.,
272 F. 577, 578.
POST EXECUTIONEM STATUS LEX NON PA-
TITUR POSSIBILITATEM. 3 Bulst. 108. After
the execution of the estate the law suffers not a
possibility.
POST FACTO. After the fact. See Ex Post Fac-
to.
POST-FACTUM, or POSTFACTUM. An after-
act; an act done afterwards; a post-act.
POST-FINE. In old conveyancing. A fine or
sum of money, (otherwise called the "king's sil-
ver") formerly due on granting the licentia con-
cordandi, or leave to agree, in levying a fine of
lands. It amounted to three-twentieths of the
supposed annual value of the land, or ten shillings
for every five marks of land. 2 Bl.Comm. 350.
POST HAC. Lat. After this; after this time;
hereafter.
POST LITEM MOTAM. Lat. After suit moved
or commenced. Depositions in relation to the
subject of a suit, made after litigation has com-
menced, are sometimes so termed. 1 Starkie, Ev.
319.
POST-MARK. A stamp or mark put on letters
received at the post-office for transmission
through the mails.
POST-MORTEM. After death. A term general-
ly applied to an autopsy or examination of a dead
body, to ascertain the cause of death, or to the
inquisition for that purpose by the coroner.
Wehle v. United States Mut. Acc. Ass'n, 11 Misc.
Rep. 36, 31 N.Y.Supp. 865; Stephens v. People, 4
Parker Cr. R., N.Y., 475.
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POSTAL SAVINGS
POST NATUS. Born afterwards. A term ap-
plied by old writers to a second or younger son.
It is used in private international law to desig-
nate a person who was born after some historic
event, (such as the American Revolution or the
act of union between England and Scotland,) and
whose rights or status will be governed or af-
fected by the 'question of his birth before or aft-
er such event.
POST-NOTES. A species of bank-notes payable
at a distant period, and not on demand.
They are a species of obligation resorted to by banks
when the exchanges of the country, and especially of the
banks, have become embarrassed by excessive speculations.
Much concern is then felt for the country, and through the
newspapers it is urged that post-notes be issued by the
banks "for aiding domestic and foreign exchanges," as a
"mode of relief," or a "remedy for the distress," and "to
take the place of the southern and foreign exchanges."
And so presently this is done. Post-notes are therefore
intended to enter into the circulation of the country as a
part of its medium of exchanges; the smaller ones for
ordinary business, and the larger ones for heavier opera-
tions. They are intended to supply the place of demand
notes, which the banks cannot afford to issue or reissue,
to relieve the necessities of commerce or of the banks, or
to avoid a compulsory suspension. They are under seal, or
without seal, and at long or short dates, at more or less
interest, or without interest, as the necessities of the bank
may require. Appeal of Hogg, 22 Pa. 488.
POST-NUPTIAL. After marriage. Thus, an
agreement entered into by a father after the
marriage of his daughter, by which he engages to
make a provision for her, would be termed a "post-
nuptial agreement." Brown.
POST-NUPTIAL SETTLEMENT. A settlement
made after marriage upon a wife or children;
otherwise called a "voluntary" settlement. 2
Kent, Comm. 173.
POST-OBIT. (Lat.) An agreement by which
the obligor borrows a certain sum of money and
promises to pay a larger sum, exceeding the law-
ful rate of interest, upon the death of a person
from whom he has some expectation, if the ob-
ligor be then living. Boynton v. Hubbard, 7 Mass.
119; 6 Madd. 111; 5 Ves. 57; 19 Ves. 628.
POST OBIT BOND. A bond given by an expect-
ant, to become due on the death of a person from
whom he will have property. A bond or agree-
ment given by a borrower of money, by which he
undertakes to pay a larger sum, exceeding the
legal rate of interest, on or after the death of a
person from whom he has expectations, in case
of surviving him. Crawford v. Russell, 62 Barb.,
N.Y., 92; Boynton v. Hubbard, 7 Mass. 119.
POST-OFFICE. A bureau or department of gov-
ernment, or under governmental superintendence,
whose office is to receive, transmit, and deliver
letters, papers, and other mail-matter sent by post.
Also the office established by government in any
city or town for the local operations of the postal
system, for the receipt and distribution of mail
from other places, the forwarding of mail there
deposited, the sale of postage stamps, etc.
POST-OFFICE DEPARTMENT. The name of
one of the departments of the executive branch
Black's Law Dictionary Revised 4th Ed.-84
of the government of the United States, which
has charge of the transmission of the mails and
the general postal business of the country.
POST-OFFICE ORDER. A letter of credit fur-
nished by the government, at a small charge, to
facilitate the transmission of money.
POST PROLEM SUSCITATAM. After issue
born, (raised.) Co.Litt. 19b.
POST ROADS. The roads or highways, by land
or sea, designated by law as the avenues over
which the mails shall be transported. Railway
Mail Service Cases, 13 Ct.C1. 204. A "post route,',
on the other hand, is the appointed course or pre-
scribed line of transportation of the mail. U. S.
v. Kochersperger, 26 Fed.Cas. 803; Blackham v.
Gresham, C.C.N.Y., 16 Fed. 611.
POST-TERMINAL SITTINGS. Sittings after-
term. See Sittings.
POST TERMINUM. After term, or post-term.
The return of a writ not only after the day assign-
ed for its return, but after the term also, for
which a fee was due. Cowell.
POST, WRIT OF ENTRY IN. In English law.
An abolished writ given by statute of Marlbridge„
52 Hen. III. c. 30, which provided that when the
number of alienations or descents exceeded the
usual degrees, a new writ should be allowed, with-
out any mention of degrees at all.
POSTAGE. The fee charged by law for carrying
letters, packets, and documents by the public
mails.
POSTAGE STAMP. A ticket issued by govern:
ment, to be attached to mail-matter, that repre:
sents the postage or fee paid for the transmission
of such matter through the public mails.
POSTAL. Relating to the mails; pertaining to
the post-office.
POSTAL CURRENCY. During a brief period
following soon after the commencement of the,
civil war in the United States, when specie change.
was scarce, postage stamps were popularly used
as a substitute; and the first issues of paper rep-
resentatives of parts of a dollar, issued by author-
ity of congress, were called "postal currency.",
This issue was soon merged in others of a more
permanent character, for which the later and
more appropriate name is "fractional currency."
Abbott.
POSTAL SAVINGS DEPOSITORIES. The act of
congress of June 25, 1910, c. 386, 36 Stat. 814 (39
U.S.C.A. § 751 et seq.), created a board of trustees
(the postmaster general, the secretary of the
treasury, and the attorney general) to establish
such depositories. Deposits may be made by any
person of ten years or over, in his or her name, or
by a married woman in her own name and free
from her husband's control. Deposits may be
made of $1 or multiples thereof, and any person
may purchase for 10 cents "postal savings
stamps" and attach them to a card furnished for
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POSTAL SAVINGS
the purpose, and a card with ten stamps affixed
will be accepted as a deposit of $1, or may be re-
deemed in cash. Interest at the rate of 2 per
cent. a year is paid, but not on fractions of a dol-
lar. No balance shall exceed $2,500.
Deposits may be withdrawn, in whole or in part,
on demand. A depositor may surrender his de-
posit in sums of $20, $40, $60, $80, $100, and mul-
tiples of $100 and of $500, and receive United
States bonds of corresponding denominations,
bearing interest at 21/2 per cent. per annum, pay-
able half-yearly and redeemable at the pleasure
of the United States after one year, and payable
in gold at the end of twenty years.
By 39 U.S.C.A. § 766, "the faith of the United
States is solemnly pledged to the payment of the
deposits."
POSTAL UNION. A treaty made at Berne in
October, 1874, for the regulation of rates of post-
age and other matters connected with the post-
office between England and various other coun-
tries. See 38 & 39 Vict. c. 22; 1 Hall.Int.L. 286.
Several international conferences have since been
held on the subject: Paris, 1878; Lisbon, 1885;
Vienna, 1891; Washington, 1897; Rome, 1906.
POSTEA. In the common-law practice, a formal
statement, indorsed on the nisi pries record, which
gives an account of the proceedings at the trial
of the action. Smith, Act. 167.
POSTED WATERS. In Vermont. Waters flow-
ing through or lying upon inclosed or cultivated
lands, which are preserved for the exclusive use
of the owner or occupant by his posting notices
(according to the statute) prohibiting all persons
from shooting, trapping, or fishing thereon, under
a prescribed penalty. See State v. Theriault, 70
Vt. 617, 41 A. 1030, 43 L.R.A. 290, 67 Am.St.Rep.
695.
POSTERIORA DEROGANT PRIORIBUS. Pos-
terior things derogate from things prior. 1 Bouv.
Inst. n. 90.
POSTERIORES. Lat. This term was used by
the Romans to denote the descendants in a di-
rect line beyond the sixth degree.
POSTERIORITY. This is a word of comparison
and relation in tenure, the correlative of which is
the word "priority." Thus, a man who held lands
or tenements of two lords was said to hold of
his more ancient lord by priority, and of his less
ancient lord by posteriority. Old Nat.Brev. 94.
It has also a general application in law consistent
with its etymological meaning, and, as so used, it
is likewise opposed to priority. Brown.
POSTERITY. All the descendants of a person in
a direct line to the remotest generation. Breckin-
ridge v. Denny, 8 Bush (Ky.) 527.
POSTHUMOUS CHILD. One borne after the
death of its father; or, when the Caesarean oper-
ation is performed, after that of the mother.
Quasi-posthumous child. In civil law. One
who, born during the life of his grandfather or
other male ascendant, was not his heir at the time
he made his testament, but who by the death of
his father became his heir in his lifetime. Inst.
2, 13, 2; Dig. 28, 3, 13.
POSTHUMUS PRO NATO HABETUR. A post-
humous child is considered as though born, [at the
parent's death.] Hall v. Hancock, 15 Pick.
(Mass.) 258, 26 Am.Dec. 598.
POSTHUMOUS WORK. Work on which origin-
al copyright has been taken out by someone to
whom literary property passed before publication.
Shapiro, Bernstein & Co. v. Bryan, C.C.A.N.Y., 123
F.2d 697, 699.
POSTLIMINIUM. Lat. In the civil law. A doc-
trine or fiction of the law by which the restoration
of a person to any status or right formerly pos-
sessed by him was considered as relating back to
the time of his original loss or deprivation; par-
ticularly in the case of one who, having been tak-
en prisoner in war, and having escaped and re-
turned to Rome, was regarded, by the aid of this
fiction, as having never been abroad, and was
thereby reinstated in all his rights. Inst. 1, 12, 5.
The term is also applied, in international law,
to the recapture of property taken by an enemy,
and its consequent restoration to its original own-
er.
POSTLIMINIUM FINGIT EUM QUI CAPTOS
EST IN CIVITATE SEMPER FUISSE. Postlim-
iny feigns that he who has been captured has
never left the state. Inst. 1, 12, 5; Dig. 49, 51.
POSTLIMINY. See Postliminium.
POSTMAN. A senior barrister in the court of
exchequer, who has precedence in motions, so call-
ed from the place where he sits. 2 Bl.Comm. 28.
A letter-carrier.
POSTMASTER. An officer of the United States,
appointed to take charge of a local post-office and
transact the business of receiving and forward-
ing the mails at that point, and such other busi-
ness as is committed to him under the postal laws.
POSTMASTER GENERAL. The head of the
post-office department. He is one of the presi-
dent's cabinet.
POSTNATI. Those born after. See Post Natus.
POSTPONE. To put off; defer; delay; contin-
ue: adjourn; as when a hearing is postponed.
Also to place after; to set below something else;
as when an earlier lien is for some reason post-
poned to a later lien.
The word "postpone" carries with it the idea of de-
ferring the doing of something or the taking effect of some-
thing until a future or later time. Gartner v. Roth, Cal.,
157 P.2d 361, 363.
The word "postponement," in speaking of legal proceed-
ings, is nearly equivalent to "continuance;" except that
the former word is generally preferred when describing
an adjournment of the cause to another day during the
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term, and the latter when the case goes over to another
term. State v. Underwood, 76 Mo. 639; State v. Nathaniel,
52 La. Ann. 558, 26 So. 1008.
POSTREMO-GENITURE. Borough-English (q.
v.).
POSTULATIO. Lat. Old English ecclesiastical
law. A species of petition for transfer of a bishop.
Roman law. A request or petition. This was
the name of the first step in a criminal prosecu-
tion, corresponding somewhat to "swearing out a
warrant" in modern criminal law. The accuser
appeared before the praetor, and stated his desire
to institute criminal proceedings against a desig-
nated person, and prayed the authority of the
magistrate therefor.
POSTULATIO ACTION'S. In Roman law. The
demand of an action; the request made to the
prietor by an actor or plaintiff for an action or
formula of suit; corresponding with the applica-
tion for a writ in old English practice. Or, as
otherwise explained, the actor's asking of leave
to institute his action, on appearance of the par-
ties before the praetor. Hallifax, Civil Law, b. 3,
c. 9, no. 12.
POTABLE. Suitable for drinking; drinkable.
State v. Mairs, Mo.App., 272 S.W. 992, 995; Hud-
dleston v. State, 103 Tex.Cr.R. 108, 280 S.W. 218.
POT-DE-VIN. In French law. A sum of money
frequently paid, at the moment of entering into a
contract, beyond the price agreed upon. It dif-
fers from arrha, in this: that it is no part of the
price of the thing sold, and that the person who
has received it cannot, by returning double the
amount, or the other party by losing what he has
paid, rescind the contract. 18 Toullier, no. 52.
POTENTATE. A person who possesses great
power or sway; a prince, sovereign, or monarch.
By the naturalization law of the United States, an alien
is required to renounce all allegiance to any foreign
"prince, potentate, or sovereign whatever."
POTENTIA. Lat. Possibility; power.
POTENTIA PROPINQUA. Common possibility.
See Possibility.
POTENTIA DEBET SEQUI JUSTITIAM, NON
ANTECEDERE. 3 Bulst. 199. Power ought to
follow justice, not go before it.
POTENTIA EST DUPLEX, REMOTA ET PRO-
PINQUA; ET POTENTIA REMOTISSIMA ET
VANA EST QUIE NUNQUAM VENIT IN AC-
TUM. 11 Coke, 51. Possibility is of two kinds, re-
mote and near; that which never comes into ac-
tion is a power the most'remote and vain.
POTENTIA INUTILIS FRUSTRA EST. Useless
power is to no purpose. Branch, Princ.
POTENTIA NON EST NISI AD BONUM. Power
is not conferred but for the public good.
POTENTIAL. Existing in possibility but not in
act; naturally and probably expected to come in-
to existence at some future time, though not now
existing; for example, the future product of grain
or trees already planted, or the successive future
installments or payments on a contract or engage-
ment already made. Things having a "potential
existence" may be the subject of mortgage, as-
signment, or sale. Campbell v. Grant Co., 36 Tex.
Civ.App. 641, 82 S.W. 796; Dickey v. Waldo, 97
Mich. 255, 56 N.W. 608, 23 L.R.A 449; Long v.
Hines, 40 Kan. 220, 19 P. 796, 10 Am.St.Rep. 192;
Carter v. Rector, 88 Okl. 12, 210 P. 1035, 1037.
POTEST QUIS RENUNCIARE PRO SE ET SUIS
JURI QUOD PRO SE INTRODUCTUM EST.
Bract. 20. One may relinquish for himself and
his heirs a right which was introduced for his
own benefit.
POTESTAS. Lat. In the civil law. Power; au-
thority; domination; empire. Imperium, or the
jurisdiction of magistrates. The power of the
father over his children, patria potestas. The au-
thority of masters over their slaves.  Inst. 1, 9,
12; Dig. 2, 1, 13, 1; Dig. 14, 1; Dig. 14, 4, 1, 4.
POTESTAS STRICTE INTERPRETATUR. A
power is strictly interpreted. Jenk.Cent. p. 17,
case 29, in marg.
POTESTAS SUPREMA SEIPSUM DISSOLVERE
POTEST, LIGARE NON POTEST. Supreme
power can dissolve [unloose] but cannot bind it-
self. Branch, Princ.; Bacon.
POTIOR EST CONDITIO DEFENDENTIS. Bet-
ter is the condition of the defendant, [than that
of the plaintiff.] Broom, Max. 740; Cowp. 343;
Williams v. Ingell, 21 Pick., Mass., 289; White v.
Franklin Bank, 22 Pick., Mass., 186, 187; Cranson
v. Goss, 107 Mass. 440, 9 Am.Rep. 45.
POTIOR EST CONDITIO POSSIDENTIS. Better
is the condition of the possessor. Broom, Max.
215, n. 719; 6 Mass. 84; 21 Pick.,Mass., 140.
POTTS' FRACTURE. A fracture of the lower
part of the fibula, accompanied with injury to the
ankle joint, so that the foot is dislocated outward.
Stockham v. Hall, 145 Kan. 291, 65 P.2d 348.
POTWALLOPER. A term formerly applied to
voters in certain boroughs of England, where all
who boil (wallop) a pot were entitled to vote.
Webster.
POULTRY COUNTER. The name of a prison
formerly existing in London. See Counter.
POUND. A place, inclosed by public authority,
for the temporary detention of stray animals.
Chenango County Humane Soc. v. Polmatier, 188
App.Div. 419, 177 N.Y.S. 101, 103.
A pound-overt is said to be one that is open overhead ; a
pound-covert is one that is close, or covered over, such as
a stable or other building.
"There is no more ancient institution in the country
than the Village Pound. It is far older than the King's
Bench, and probably older than the kingdom." Maine,
Early Hist. of Inst., p. 263.
A measure of weight. The pound avoirdupois
contains 7,000 grains; the pound troy 5,760 grains.
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In New York, the unit or standard of weight from which
all other weights shall be derived and ascertained, is
declared to be the pound, of such magnitude that the
weight of a cubic foot of distilled water, at its maximum
density, weighed in a vacuum with brass weights, shall be
equal to sixty-two and a half such pounds. 1 Rev.St.N.Y.
p. 617, 8.
Name of a denomination of English money, con-
taining twenty shillings. It was also used in the
United States, in computing money, before the in-
troduction of the federal coinage.
POUND BREACH. The act or offense of break-
ing a pound, for the purpose of taking out the
cattle or goods impounded. 3 Bl.Comm. 12, 146;
State v. Young, 18 N.H. 544.
POUND NET. A kind of fishing net also known
as a "dutch" net and sometimes, formerly, as a
"pod" net. N. Car. G. S. § 113-278; Hettrick v.
Page, 82 N.C. 65; Rea v. Hampton, 7 S.E. 649, 101
N.C. 51, 9 Am.St.Rep. 21. It is a wall net with
wings, and a leader, together with a pocket, bowl,
pot, or pound, into which the fish are guided by
the wings and the leader, which is an upright net
extended in a straight line to the shore. The
wings are in many cases a thousand yards in
length. Cent. Dict.
POUND OF LAND. An uncertain quantity of
land, said to be about fifty-two acres.
See Librata Terre.
POUNDAGE. Old English law. A subsidy to the
value of twelve pence in the pound, granted to
the king, of all manner of merchandise of every
merchant, as well denizen as alien, either export-
ed or imported. Cowell.
Practice. An allowance to the sheriff of so
much in the pound upon the amount levied under
an execution. Bowe v. Campbell, 2 Civ.Proc.R.,
N.Y., 234. The money which an owner of ani-
mals impounded must pay to obtain their release.
POUNDKEEPER. An officer charged with the
care of a pound, and of animals confined there.
POUR ACQUIT. Fr. In French law. The for-
mula which a creditor prefixes to his signature
when he gives a receipt.
POUR APPUYER. For the support of, or "in
the support of." Collins v. Collins, 193 So. 702,
703, 194 La. 446.
POUR APPUYER NOUVELLE DEMANDE. In
support of his new action. Collins v. Collins, 194
La. 446, 193 So. 702, 703.
POUR COMPTE DE QUI IL APPARTIENT. Fr.
For account of whom it may concern.
POUR FAIRE PROCLAIMER: L. Fr. An an-
cient writ addressed to the mayor or bailiff of a
city or town, requiring him to make proclamation
concerning nuisances, etc. Fitzh.Nat.Brev. 176.
POUR SEISIR TERRES. L. Fr. An ancient writ
whereby the crown seized the land which the wife
of its deceased tenant, who held in capite, had for
her dower, if she married without leave. It was
grounded on the statute De Prcrrogativa Regis, 7
(17 Edw. II. St. 1, c. 4). It is abolished by 12
Car. II. c. 24.
POURPARLER. Fr. In French law. The pre-
liminary negotiations or bargainings which lead
to a contract between the parties. As in English
law, these form no part of the contract. when
completed. The term is also used in this sense
in international law and the practice of diplomacy.
POURPARTY. To make pourparty is to divide
and sever the lands that fall to parceners, which,
before partition, they held jointly and pro indiv-
iso. Cowell.
POURPRESTURE- An inclosure.  Anything
done to the nuisance or hurt of the public de-
mesnes, or the highways, etc., by inclosure or
building, endeavoring to make that private which
ought to be public . The difference between a pour-
presture and a public nuisance is that pourpres-
ture is an invasion of the jus privatum of the
crown; but where the jus publicum is violated it
is a nuisance. Skene makes three sorts of this
offense: (1) Against the crown; (2) against the
lord of the fee; (3) against a neighbor. 2 Inst.
38; 1 Reeve, Eng.Law, 156.
POURSUIVANT. The king's messenger; a roy-
al or state messenger. In the h,...alds' college, a
functionary of lower rank than a herald, but dis-
charging similar duties, called also "poursuivant
at arms."
POURVEYANCE. In old English law. The pro-
viding corn, fuel, victuals, and other necessaries
for the king's house. Cowell.
POURVEYOR, or PURVEYOR. A buyer; one
who provided for the royal household.
POUSTIE. In Scotch law. Power. See Liege
Poustie. A word formed from the Latin "potes-
tas."
POVERTY AFFIDAVIT. An affidavit, made and
filed by one of the parties to a suit, that he is not
able to furnish security for the final costs. The
use of the term is confined to a few states. Cole
v. Hoeburg, 36 Kan. 263, 13 P. 275.
POWER. The right, ability, of faculty of doing
something. Clifford v. Helvering, C.C.A.8, 105 F.
2d 586, 591. Authority to do any act which the
grantor might himself lawfully perform. In re
Morrison's Estate, 173 Misc. 503, 18 N.Y.S.2d 235,
241.
In a restricted sense a "power" is a liberty or
authority reserved by, or limited to, a person to
dispose of real or personal property, for his own
benefit, or benefit of others, or enabling one per-
son to dispose of interest which is vested in an-
other. In re Vanatta's Estate, 99 N.J.Eq. 339, 131
A. 515, 518; Hupp v. Union Coal & Coke Co., 284
Pa. 529, 131 A. 364, 365; Security Trust & Safe
Deposit Co. v. Ward, 10 Del.Ch. 408, 93 A. 385, 388.
Real property law. An authority to do some act
in relation to real property, or to the creation or
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revocation of an estate therein, or a charge there-
on, which the owner granting or reserving such
power might himself perform for any purpose.
Civ.Code Dak. § 298 (Comp.Laws N.D.1913, § 5383;
Rev.Code S.D.1919, § 390) ; How.St.Mich. § 5591
(Comp.Laws 1929, § 12996).
"Power" is sometimes used in the same sense as "right,"
as when we speak of the powers of user and disposition
which the owner of property has over it, but, strictly
speaking, a power is that which creates a special or excep-
tional right, or enables a person to do something which he
could not otherwise do. Sweet.
Technically, an authority by which one person
enables another to do some act for him. 2 Lil.
Abr. 339.
An authority enabling a person to dispose,
through the medium of the statute of uses, of an
interest, vested either in himself or in another
person. Sugd. Powers, 82. An authority ex-
pressly reserved to a grantor, or expressly
given to another, to be exercised over lands,
etc., granted or conveyed at the time of the
creation of such power. Watk.Conv. 157. A
proviso, in a conveyance under the statute of uses,
giving to the grantor or grantee, or a stranger,
authority to revoke or alter by a subsequent act
the estate first granted. 1 Steph.Comm. 505; Bur-
leigh v. Clough, 52 N.H. 267, 13 Am.Rep. 23; Grif-
fith v. Maxfield, 66 Ark. 513, 51 S.W. 832, Bouton
v. Doty, 69 Conn. 531, 37 A. 1064; Law Guarantee
& Trust Co. v. Jones, 103 Tenn. 245, 58 S.W. 219.
There is a clear distinction between a power and a trust,
since "powers" are never imperative, but leave the act to
be done at the will of the donee of the power, while
"trusts" are always imperative, and are obligatory on the
conscience of the trustee. People v. Kaiser, 306 Ill. 313,
137 N.E. 826, 828; Hirschmann v. Gantt, 136 S.C. 1, 134
S.E. 230, 231.
General
Appendant or appurtenant powers. Those exist-
ing where the donee of the power has an estate in
the land and the power is to take effect wholly or
in part out of that estate, and the estate created
by its exercise affects the estate and interest of
the donee of the power. Baker v. Wilmert, 288 Ill.
434, 123 N.E. 627, 629; Taylor v. Phillips, 147 Ga.
761, 95 S.E. 289.
Collateral powers. Those in which the donee
of the power has no interest or estate in the land
which is the subject of the power. Also called
"naked powers." 2 Washb.R.P. 305; Baker v.
Wilmert, 288 Ill. 434, 123 N.E. 627, 629.
Executive power. See Executive Power.
Exclusive power. See Exclusive Power.
General and special powers. A power is gen-
eral when it authorizes the alienation in fee, by
means of a conveyance, will, or charge, of the
lands embraced in the power to any alienee what-
soever. It is special (1) when the persons or class
of persons to whom the disposition of the lands
under the power is to be made are designated, or
(2) when the power authorizes the alienation, by
means of a conveyance, will, or charge, of a par-
ticular estate or interest less than a fee. Coster
v. Lorillard, 14 Wend. (N.Y.) 324; Thompson v.
Garwood, 3 Whart. (Pa.) 305, 31 Am.Dec. 502.
General and special powers in trust. A general
power is in trust when any person or class of per-
sons other than the grantee of such power is des-
ignated as entitled to the proceeds or any portion
of the proceeds or other benefits to result from
the alienation. A special power is in trust (1)
when the disposition or charge which it authorizes
is limited to be made to any person or class of
persons other than the holder of the power, or (2)
when any person or class of persons other than
the holder is designated as entitled to any benefit
from the disposition or charge authorized by the
power. Cutting v. Cutting, 20 Hun (N.Y.) 360;
Dana v. Murray, 122 N.Y. 612, 26 N.E. 23; 60 Oki.
St.Ann. §§ 191, 192.
Inherent powers. Those which are enjoyed by
the possessors of natural right, without having
been received from another. Such are the powers
of a people to establish a form of government, of
a father to control his children. Some of these
are regulated and restricted in their exercise by
law, but are not technically considered in the law
as powers.
Ministerial powers. A phrase used in English
conveyancing to denote powers given for the good,
not of the donee himself exclusively, or of the
donee himself necessarily at all, but for the good
of several persons, including or not including the
donee also. They are so called because the donee
of them is as a minister or servant in his exer-
cise of them. Brown.
Naked power. One which is simply collateral
and without interest in the donee, which arises
when, to a mere stranger, authority is given of
disposing of an interest, in which he had not be-
fore, nor has by the instrument creating the pow-
er, any estate whatsoever. Bergen v. Bennett, 1
Caines Cas. (N.Y.) 15, 2 Am.Dec. 281; Hunt v.
Ennis, 12 Fed.Cas. 915; Atzinger v. Berger, 151
Ky. 800, 152 S.W. 971, 972, 50 L.R.A.,N.S., 622.
Power of revocation. A power which is to di-
vest or abridge an, existing estate. Distinguished
from those of appointment; but the distinction is
of doubtful exactness, as every new appointment
must divest or revoke a former use. Sanders,
Uses 154.
Power of visitation. A power vested by the
founder in an appointed visitor, or the trustees or
governors of an institution, to regulate its inter-
nal affairs and to appoint professors, elect schol-
arships, officers, and the like. In re Norton, 97
Misc.Rep. 289, 161 N.Y.S. 710, 717.
Powers in gross. Those which give a donee of
the power, who has an estate in the land, author-
ity to create such estates only as will not attach
on the interest limited to him or take effect out
of his interest, but will take effect after donee's
estate has terminated. Baker v. Wilmert, 288 Ill.
434, 123 N.E. 627; Taylor v. Phillips, 147 Ga. 761,
95 S.E. 289, 290.
Constitutional Law
The right to take action in respect to a par-
ticular subject-matter or class of matters, involv-
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ing more or less of discretion, granted by the con-
stitutions to the several departments or branches
of the government, or reserved to the people.
Powers in this sense are generally classified as
legislative, executive, and judicial. See those ti-
tles.
Implied powers are such as are necessary to
make available and carry into effect those powers
which are expressly granted or conferred, and
which must therefore be presumed to have been
within the intention of the constitutional or leg-
islative grant. First M. E. Church v. Dixon, 178
Ill. 260, 52 N.E. 887; In re Board of Com'rs of
Cook County, 146 Minn. 103, 177 N.W. 1013, 1014;
Skelly Oil Co. v. Pruitt & McCrory, 94 Okl. 232, 221
P. 709, 710; Citizens' Electric Illuminating Co. v.
Lackawanna & W. V. Power Co., 255 Pa. 176, 99 A.
465, 467.
Law of Corporations
The right or capacity to act or be acted upon
in a particular manner or in respect to a particu-
lar subject; as, the power to have a corporate
seal, to sue and be sued, to make by-laws, to carry
on a particular business or construct a given
work. See Freligh v. Saugerties, 70 Hun, 589, 24
N.Y.S. 182; In re Lima & H. F. Ry. Co., 68 Hun,
252, 22 N.Y.S. 967.
For other compound terms, such as "Power of
Appointment," "Power of Sale," etc., see the fol-
lowing titles.
POWER COUPLED WITH AN INTEREST. A
right or power to do some act, together with an
interest in the subject-matter on which the power
is to be exercised. It is distinguished from a nak-
ed power, which is a mere authority to act, not
accompanied by any interest of the donee in the
subject-matter of the power. Arcweld Mfg. Co. v.
Burney, 12 Wash.2d 212, 121 P.2d 350, 355.
Is it an interest in the subject on which the power is to
be exercised, or is it an interest in that which is produced
by the exercise of the power ? We hold it to be clear that
the interest which can protect a power after the death of
a person who creates it must be an interest in the thing
itself. In other words, the power must be engrafted on an
estate in the thing. The words themselves would seem to
import this meaning. "A power coupled with an interest"
is a power which accompanies or is connected with an
interest. The power and the interest are united in the
same person. But, if we are to understand by the word
"interest" an interest in that which is to be produced by
the exercise of the power, then they are never united. The
power to produce the interest must be exercised, and by
its exercise is extinguished. The power ceases when the
interest commences, and therefore cannot, in accurate law
language, be said to be "coupled" with it. And see Mis-
souri v. Walker, 8 S.Ct. 929, 125 U.S. 339, 31 L.Ed. 769;
Griffith v. Maxfield, 66 Ark. 513, 51 S.W. 832; Hunt v.
Ennis, 12 Fed.Cas. 915; Chase Nat. Bank of New York v.
Sayles, 11 F.2d 948, 957; Sphier v. Michael,
112 Or. 229, 229 P. 1100, 1101; Drake v. O'Brien, 99 W.Va.
582, 130 S.E. 276, 278.
POWER OF APPOINTMENT. A power or au-
thority conferred by one person by deed or will
upon another (called the "donee") to appoint, that
is, to select and nominate, the person or persons
who are to receive and enjoy an estate or an in-
come therefrom or from a fund, after the testa-
tor's death, or the donee's death, or after the ter-
mination of an existing right or interest. Heine-
mann v. De Wolf, 25 R.I. 243, 55 A. 707; People v.
Kaiser, 306 Ill. 313, 137 N.E. 826, 828.
The distinction between a "will" and a "power of ap-
pointment" is that a will concerns the estate of the testa-
tor, while an appointment under a power concerns that of
the donor of the power. Thompson v. Pew, 214 Mass. 520,
102 N.E. 122, 125.
Powers are either : Collateral, which are given to stran-
gers; i. e., to persons who have neither a present nor fu-
ture estate or interest in the land. These are also called
simply "collateral," or powers not coupled with an inter-
est, or powers not being interests. Or they are powers
relating to the land. These are called "appendant" or
"appurtenant," because they strictly depend upon the
estate limited to the person to whom they are given. Thus,
where an estate for life is limited to a man, with a power
to grant leases in possession, a lease granted under the
power may operate wholly out of the life-estate of the
party executing it, and must in every case have its opera-
tion out of his estate during his life. Such an estate must
be created, which will attach on an interest actually vested
in himself. Or they are called "in gross," if given to a
person who had an interest in the estate at the execution of
the deed creating the power, or to whom an estate is given
by the deed, but which enabled him to create such estates
only as will not attach on the interest limited to him. Of
necessity, therefore, where a man seised in fee settles his
estate on others, reserving to himself only a particular
power, the power is in gross.
A power to a tenant for life to appoint the estate after
his death among his children, a power to jointure a wife
after his death, a power to raise a term of years to com-
mence from his death, for securing younger children's por-
tions, are all powers in gross. An important distinction is
established between general and particular powers. By a
general power we understand a right to appoint to whom-
soever the donee pleases. By a particular power it is
meant that the donee is restricted to some objects desig-
nated in the deed creating the power, as to his own chil-
dren. Wharton.
A general power is beneficial when no person other than
the grantee has, by the terms of its creation, any interest
in its execution. A general power is in trust when any
person or class of persons, other than the grantee of such
power, is designated as entitled to the proceeds, or any
portion of the proceeds, or other benefits to result from the
alienation. Cutting v. Cutting, 20 Hun, N.Y., 364.
When a power of appointment among a class requires
that each shall have a share, it is called a "distributive"
or "non-exclusive" power ; when it authorizes, but does
not direct, a selection of one or more to the exclusion of
the others, it is called an "exclusive" power, and is also
distributive; when it gives the power of appointing to a
certain number of the class, but not to all, it is exclusive
only, and not distributive. Leake, 389. A power authoriz-
ing the donee either to give the whole to one of a class or
to give it equally among such of them as he may select
(but not to give one a larger share than the others) is
called a "mixed" power. Sugd.Powers, 448. Sweet.
POWER OF ATTORNEY. An instrument au-
thorizing another to act as one's agent or attor-
ney. A letter of attorney. Arcweld Mfg. Co. v.
Burney, 12 Wash.2d 212, 121 P.2d 350, 354; Olive-
Sternenberg Lumber Co. v. Gordon, Tex.Civ.App.,
143 S.W.2d 694, 698. See Attorney.
POWER OF DISPOSITION. Every power of dis-
position is deemed absolute, by means of which
the donee of such power is enabled in his life-time
to dispose of the entire fee for his own benefit;
and, where a general and beneficial power to de-
vise the inheritance is given to a tenant for life
or years, it is absolute, within the meaning of the
statutes of some of the states. See Power of Ap-
pointment.
POWER OF SALE. A clause sometimes inserted
in mortgages and deeds of trust, giving the mort-
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gagee (or trustee) the right and power, on de-
fault in the payment of the debt secured, to adver-
tise and sell the mortgaged property at public
auction (but without resorting to a court for au-
thority), satisfy the creditor out of the net pro-
ceeds, convey by deed to the purchaser, return
the surplus, if any, to the mortgagor, and thereby
divest the latter's estate entirely and without
any subsequent right of redemption. Capron v.
Attleborough Bank, 11 Gray (Mass.) 493; Appeal
of Clark, 70 Conn. 195, 39 A. 155.
POYNDING. See Poinding.
POYNINGS' ACT. An act of parliament, made
in Ireland, (10 Hen. VII. c. 22, A.D. 1495; ) so called
because Sir Edward Poynings was lieutenant
there when it was made, whereby all general stat-
utes before then made in England were declared
of force in Ireland, which, before that time, they
were not. 1 Broom & H.Comm. 112.
PRACTICABLE, PRACTICABLY. Practicable is
that which may be done, practiced, or accomplish-
ed, that which is performable, feasible, possible;
and the adverb practicably means in a practicable
manner. Streeter v. Streeter, 43 Ill. 165; Lauck
v. Reis, 310 Mo. 184, 274 S.W. 827, 832; Unver-
zagt v. Prestera, 339 Pa. 141, 13 A.2d 46, 48.
PRACTICAL. A practical construction of a con-
stitution or statute is one determined not by ju-
dicial decision, but practice sanctioned by general
consent. Bloxham v. Consumers' Electric Light,
etc., Co., 36 Fla. 519, 18 So. 444, 29 L.R.A. 507, 51
Am.StRep. 44.
PRACTICE. Repeated or customary action; ha-
bitual performance; a succession of acts of simi-
lar kind; habit; custom; usage; application of
science to the wants of men; the exercise of any
profession. Marker v. Cleveland, 212 Mo.App.
467, 252 S.W. 95, 96; Columbia Life Ins. Co. v.
Tousey, 152 Ky. 447, 153 S.W. 767, 768.
The form or mode or proceeding in courts of
justice for the enforcement of rights or the re-
dress of wrongs, as distinguished from the sub-
stantive law which gives the right or denounces
the wrong. The form, manner, or order of insti-
tuting and conducting a suit or other judicial pro-
ceeding, through its successive stages to its end,
in accordance with the rules and principles laid
down by law or by the regulations and precedents
of the courts. The term applies as well to the
conduct of criminal actions as to civil suits, to
proceedings in equity as well as at law, and to the
defense as well as the prosecution of any proceed-
ing. Wells Lamont Corp. v. Bowles, Em.App., 149
F.2d 364, 366.
Practice of a profession implies a continuing occupation,
and a practitioner of veterinary science •is one who habit-
ually held himself out to the public as such. Beaver Brook
Resort Co. v. Stevens, 76 Colo. 133, 230 P. 121, 122.
It may include pleading, but is usually employed as ex-
cluding both pleading and evidence, and to designate all
the incidental acts and steps in the course of bringing mat-
ters pleaded to trial and proof, and procuring and enforc-
ing judgment on them.
Practice of law. Not limited to appearing in
court, or advising and assisting in the conduct of
litigation, but embracing the preparation of plead-
ings, and other papers incident to actions and spe-
cial proceedings, conveyancing, the preparation
of legal instruments of all kinds, and the giving
of all legal advice to clients. State v. Chamber-
lain, 132 Wash. 520, 232 P. 337, 338. It embraces
all advice to clients and all actions taken for
them in matters connected with the law. Rhode
Island Bar Ass'n v. Lesser, 68 R.I. 14, 26 A.2d 6,
7.
Practice of medicine. The discovery of the
cause and nature of disease, and the administra-
tion of remedies, or the prescribing of treatment
therefor. State v. Heffernan, 40 R.I. 121, 100 A.
55, 60. Statutes, regulating the "practice of med-
icine" and providing penalties for failure to com-
ply therewith, include all who practice the art of
healing, State v. Collins, 178 Iowa, 73, 159 N.W.
604, 607, and diagnosing, prescribing and treating
ailments are constituent parts of "practice of med-
icine." People v. T. Wah Hing, 79 Cal.App. 286,
249 P. 229, 230.
PRACTICE COURT. In English law. A court at-
tached to the court of king's bench, which heard
and determined common matters of business and
ordinary motions for writs of mandamus, prohi-
hibition, etc. It was usually called the "bail court."
It was held by one of the puisne justices of the
king's bench.
PRACTICES. A succession of acts of a similar
kind or in a like employment.
PRACTICKS. In Scotch law. The decisions of
the court of session, as evidence of the practice
or custom of the country. Bell.
PRACTITIONER. He who is engaged in the
exercise or employment of any art or profession.
PRIECEPTORES. Lat. Masters. The chief
clerks in chancery were formerly so called, be-
cause they had the direction of making out reme-
dial writs. 2 Reeve, Eng.Law, 251.
PRIECEPTOREES. In feudal law. A kind of
benefices, so called because they were possessed
by the more eminent templars whom the chief
master by his authority created and called "Prce-
ceptores Templi."
PRIECIPE. Lat. In practice. An original writ,
drawn up in the alternative, commanding the de-
fendant to do the thing required, or show the rea-
son why he had not done it. 3 Bl.Comm. 274.
A slip of paper upon which the particulars of a
writ are written. It is lodged in the office out of
which the required writ is to issue. Wharton.
Dict.
Also an order, written out and signed, addressed
to the clerk of a court, and requesting him to issue
a particular writ.
PRIECIPE IN CAPITE. When one of the king's
immediate tenants in capite was deforced, his
writ of right was called a writ of "prcecipe in
capite."
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PRIECIPE QUOD REDDAT. Command that he
render. A writ directing the defendant to restore
the possession of land, employed at the begin-
ning of a common recovery.
PRIECIPE QUOD TENEAT CONVENTIONEM.
The writ which commenced the action of covenant
in fines, which are abolished by 3 & 4 Wm. IV. c.
74.
PRIECIPE, TENANT TO THE. A person having
an estate of freehold in possession, against whom
the prcecipe was brought by a tenant in tail, seek-
ing to bar his estate by a recovery.
PRIECIPITIUM. The punishment of casting
headlong from some high place.
PRIECIPUT CONVENTIONNEL. In French law.
Under the regime en communaute, when that is
of the conventional kind, if the surviving husband
or wife is entitled to take any portion of the
common property by a paramount title and be-
fore partition thereof, this right is called by the
somewhat barbarous title of the conventional
"proeciput," from "prce," before, and "capere,"
to take. Brown.
PRIECO. Lat. In Roman law. A herald or
crier.
PRIECOGNITA. Things to be previously known
in order to the understanding of something which
follows. Wharton.
PRIEDIA. In the civil law. Lands; estates; ten-
ements; properties. See Prdium.
PRIEDIA BELLICA. Booty. Property seized in
war.
PRIEDIA STIPENDIARIA. In the civil law.
Provincial lands belonging to the people.
PRIEDIA TRIBUTARIA. In the civil law. Pro-
vincial lands belonging to the emperor.
PRIEDIA VOLANTIA. In the duchy of Brabant,
certain things movable, such as beds, tables, and
other heavy articles of furniture, were ranked
among immovables, and were called "prcedia vol-
antia," or "volatile estates." 2 Bl.Comm. 428.
PRIEDIAL. That which arises immediately
from the ground: as, grain of all sorts, hay, wood,
fruits, herbs, and the like.
PRIEDIAL SERVITUDE. A right wnich is grant-
ed for the advantage of one piece of land over
another, and which may be exercised by every
possessor of the land entitled against every pos-
sessor of the servient land. It always presupposes
two pieces of land (prcedia) belonging to differ-
ent proprietors; one burdened with the servitude,
called "prcedium serviens," and one for the ad-
vantage of which the servitude is conferred, call-
ed "prcedium dominans." Mackeld. Rom. Law, §
314.
PRIEDIAL TITHES. Such as arise merely and
immediately from the ground; as grain of all
• sorts, hops, hay, wood, fruit, herbs. 2 Bl.Comm.
23; 2 Steph.Comm. 722.
PRZEDICTUS. Lat. Aforesaid. Hob. 6. Of the
three words, "tidem," "prcedictus," and "prcefatus,"
"idem" was most usually applied to plaintiffs or
demandants; "prcedictus," to defendants or ten-
ants, places, towns, or lands; and "prcefatus," to
persons named, not being actors or parties.
Townsh.Pl. 15. These words may all be render-
ed in English by "said" or "aforesaid."
PRIEDIUM. Lat. In the civil law. Land; an
estate; a tenement; a piece of landed property.
Dig. 50, 16, 115.
PRIEDIUM DOMINANS. In the civil law. The
name given to an estate to which a servitude is
due; the dominant tenement. Morgan v. Mason,
20 Ohio, 409, 55 Am.Dec. 464.
PRIEDIUM RUSTICUM. In Roman law. A rus-
tic or rural estate. Primarily, this term denoted
an estate lying in the country, i. e., beyond the
limits of the city, but it was applied to any landed
estate or heritage other than a dwelling-house,
whether in or out of the town. Thus, it included
gardens, orchards, pastures, meadows, etc.
Mackeld. Rom. Law, § 316. A rural or country
estate; an estate or piece of land principally des-
tined or devoted to agriculture; an empty or va-
cant space of ground without buildings.
PRIEDIUM SERVIENS. In the civil law. The
name of an estate which suffers a servitude or
easement to another estate; the servient tene-
ment. Morgan v. Mason, 20 Ohio, 409, 55 Am.
Dec. 464.
PRIEDIUM SERVIT PRIEDIO. Land is under
servitude to land, [i. e., servitudes are not person-
al rights, but attach to the dominant tenement.'
Tray. Lat. Max. 455.
PRIEDIUM URBANUM. In the civil law. A
building or edifice intended for the habitation and
use of man, whether built in cities or in the coun-
try. Colq. Rom. Civil Law, § 937.
PRIEDO. Lat. In Roman law. A robber. Dig.
50, 17, 126.
PRIEFATUS. Lat. Aforesaid. Sometimes ab-
breviated to "prcefat," and "p. fat."
PRIEFECTI APOSTOLICI. Officers of the same
character as the Vicarius Apostolicus (q. v.), but
without the power of exercising episcopal func-
tions. 2 Phill.Int.L. 529.
PRIEFECTURIE. In Roman law. Conquered
towns, governed by an officer called a "prefect,"
who was chosen in some instances by the people,
in others by the pr aetors. Butl.Hor.Jur. 29.
PRIEFECTUS URBI. Lat. In Roman law. An
officer who, from the time of Augustus, had the
superintendence of the city and its police, with
jurisdiction extending one hundred miles from
the city, and power to decide both civil and crim-
inal cases. As he was considered the direct rep-
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PRZESENTIA
resentative of the emperor, much that previously
belonged to the prcetor urbanus fell gradually
into his hands. Colq.Rom. Civil Law, § 2395.
PRZEFECTUS VIGILUM. Lat. In Roman law.
The chief officer of the night watch. His juris-
diction extended to certain offenses affecting the
public peace, and even to larcenies; but he could
inflict only slight punishments. Colq. Rom. Civil
Law, § 2395.
PRZEFECTUS VILLZE. The mayor of a town.
PRZEFINE. The fee paid on suing out the writ
of covenant, on levying fines, before the fine was
passed. 2 Bl.Comm. 350.
PR1EJURAMENTUM. In old English law. A
preparatory oath.
PRAZELEGATUM. Lat. In Roman law. A pay-
ment in advance of the whole or part of the share
which a given heir would be entitled to receive
out of an inheritance; corresponding generally
to "advancement" in English and American law.
Mackeld. Rom. Law, § 762.
PRZEMIUM. Lat.  Reward; compensation.
Prcemium assecurationis, compensation for in-
surance; premium of insurance. Locc. de Jur.
Mar. lib. 2, c. 5, § 6.
PR1EMIUM EMANCIPATIONIS. In Roman law.
A reward or compensation anciently allowed to a
father on emancipating his child, consisting of
one-third of the child's separate and individual
property, not derived from the father himself.
Mackeld. Rom. Law, § 605.
PRZEMIUM PUDICITIIE. The price of chastity;
or compensation for loss of chastity. A term ap-
plied to bonds and other engagements given for
the benefit of a seduced female. Sometimes call-
ed "premium pudoris." 2 veils. 339, 340.
PRZEMUNIRE. In English law. An offense
against the king and his government, though not
subject to capital punishment. So called from
the words of the writ which issued preparatory to
the prosecution: "Prcemunire facias A. B. quod
sit coram nobis," etc.; "Cause A. B. to be fore-
warned that he appear before us to answer the
contempt with which he stands charged." The
statutes establishing this offense, the first of
which was made in the thirty-first year of the
reign of Edward I., were framed to encounter the
papal usurpations in England; the original mean-
ing of the offense called "prcemunire" being the
introduction of a foreign power into the kingdom,
and creating imperium in imperio, by paying that
obedience to papal process which constitution-
ally belonged to the king alone. The penalties
of prcemunire were afterwards applied to other
heinous offenses. 4 Bl.Comm. 103-117; 4 Steph.
Comm. 215-217.
PRZENOMEN. Lat. Forename, or first name.
The first of - the three names by which the Ro-
mans were commonly distinguished. It marked
the individual, and was commonly written with
one letter; as "A." for "Aulus;" "C." for "Caius,'
etc. Adams, Rom.Ant. 35.
PRZEPOSITUS. In old English law. An officer
next in authority to the alderman of a hundred,
called "prcepositus regius;" or a steward or bail-
iff of an estate, answering to the "wicnere."
Also the person from whom descents are traced
under the old canons.
PRZEPOSITUS ECCLESIZE. A church-reeve, or
warden. Spelman.
PRIEPOSITUS VILLZE. A constable of a town,
or petty constable.
PR)EPROPERA CONSILIA RARO SUNT PROS-
PERA. 4 Inst. 57. Hasty counsels are rarely
prosperous.
PRIESCRIPTIO. Lat. In the civil law. That
mode of acquisition whereby one becomes propri-
etor of a thing on the ground that he has for a
long time possessed it as his own; prescription.
Dig. 41, 3. It was anciently distinguished from
"usucapio," (q. v.,) but was blended with it by
Justinian.
PRIESCRIPTIO EST TITULUS EX USU ET
TEMPORE SUBSTANTIAM CAPIENS AB AUC-
TORITATE LEGIS. Co.Litt. 113. Prescription
is a title by authority of law, deriving its force
from use and time.
PRIESCRIPTIO ET EXECUTIO NON PERTIN-
ENT AD VALOREM CONTRACTUS, SET AD
TEMPUS ET MODUM ACTIONIS INSTITUEN-
DIE. Prescription and execution do not affect
the validity of the contract, but the time and
manner of bringing an action. Pearsall v.
Dwight, 2 Mass. 84, 3 Am.Dec. 35; Decouche v.
Savetier, 3 Johns.Ch. (N.Y.) 190, 219, 8 Am.Dec.
478.
PRIESCRIPTIONES. Lat.  In Roman law.
Forms of words (of a qualifying character) in-
serted in the formulce in which the claims in ac-
tions were expressed; and, as they occupied an
early place in the formuloe, they were called by
this name, i. e., qualifications preceding the claim.
For example, in an action to recover the arrears
of an annuity, the claim was preceded by the
words "so far as the annuity is due and unpaid,"
or words to the like effect, ("cujus rei dies fuit.")
Brown.
PRIESENTARE NIHIL ALIUD EST QUAM
PRIESTO DARE SEU OFFERS. To present is no
more than to give or offer on the spot. Co.Litt.
120.
PRIESENTIA CORPORIS TOLLIT ERROREM
NOMINIS; ET VERITAS NOMINIS TOLLIT ER-
ROREM DEMONSTRATIONIS. The presence of
the body cures error in the name; the truth of
the name cures an error of description. Broom,
Max. 637, 639, 640.
•
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PRIESES
PRZESES. Lat. In Roman law. A president or
governor. Called a "nomen generale," including
pro-consuls, legates, and all who governed prov-
inces.
PR1ESTARE. Lat. In Roman law. "Prcestare"
meant to make good, and, when used in conjunc-
tion with the words "dare," "facere," "oportere,"
denoted obligations of a personal character, as
opposed to real rights.
PRZESTAT CAUTELA QUAM MEDELA. Pre-
vention is better tian cure. Co.Litt. 304b.
PRIESTITA ROLLS. In these were entered the
sums of money which issued out of the royal
treasury, by way of imprest, advance, or accom-
modation, in the 12th year of King John; also
roll of the 7th, and one of the 14th, 15th and 16th
years of the same reign. See Record Commis-
sion (1844).
PRIESUMATUR PRO JUSTITIA SENTENTLzE.
The presumption should be in favor of the justice
of a sentence. Best, Ev. Introd. 42.
PRIESUMITUR PRO LEGITIMATIONE. The
presumption is 'in favor of legitimacy. 1 Bl.
Comm. 457; 5 Coke, 98b.
PRZESUMITUR PRO NEGANTE. It is presumed
for the negative. The rule of the house of lords
when the numbers are equal on a motion. Whar-
ton.
PRIESUMPTIO. Lat. Presumption; a presump-
tion. Also intrusion, or the unlawful taking of
anything.
PRIESUMPTIO, EX EO QUOD PLERUMQUE
FIT. Presumptions arise from what generally
happens. Post v. Pearsall, 22 Wend. (N.Y.) 425,
475.
PRIESUMPTIO FORTIOR. A strong presump-
tion; a presumption of fact entitled to great
weight. One which determines the tribunal in its
belief of an alleged fact, without, however, ex-
cluding the belief of the possibility of its being
otherwise; the effect of which is to shift the bur-
den of producing evidence to the opposite party,
and, if this proof be not made, the presumption is
held for truth. Hub.PrEel.J.C. lib. 22, tit. 3, n. 16;
Burrill, Circ.Ev. 66.
PRIESUMPTIO HOMINIS. The presumption of
the man or individual; that is, natural presump-
tion unfettered by strict rule.
PRIESUMPTIO JURIS. A legal presumption or
presumption of law; that is, one in which the law
assumes the existence of something until it is
disproved by evidence; a conditional, inconclusive,
or rebuttable presumption. Best, Ev. § 43.
PRIESUMPTIO JURIS ET DE JURE. A pre-
sumption of law and of right; a presumption
which the law will not suffer to be contradicted; a
conclusive or irrebuttable presumption.
PRIESUMPTIO MUCIANA. In Roman law. A
presumption of law that property in the hands of
a wife came to her as a gift from her husband
and was not acquired from other sources; avail-
able only in doubtful cases and until the contrary
is shown. Mackeld. Rom. Law, § 560.
PRIESUMPTIO VIOLENTA PIENA PROBATIO.
Co.Litt. 6b. Strong presumption is full proof.
PRIESUMPTIO VIOLENTA VALET IN LEGE.
Strong presumption is of weight in law. Jenk.
Cent. p. 56, case 3.
PRZES1UMPTIONES SUNT CONJECTURIE EX
SIGNO VERISIMILI AD PROBANDUM AS-
SUMPTZE. Presumptions are conjectures from
probable proof, assumed for purposes of evidence.
J. Voet, Com. ad Pand. 1. 22, tit. 3, n. 14.
PRYETERITIO. Lat. A passing over or omis-
sion. Used in the Roman law to describe the act
of a testator in excluding a given heir from the
inheritance by silently passing him by, that is,
neither instituting nor formally disinheriting him.
Mackeld. Rom. Law, § 711.
PRZETEXTU LICITI NON DEBET ADMITTI
ILLICITUM. Under pretext of legality, what is
illegal ought not to be admitted. Wing. Max. p.
728, max. 196.
PEZETEXTUS. Lat. A pretext; a pretense or
color. Prcetextu cujus, by pretense, or under pre-
text whereof. 1 Ld.Raym. 412.
PRZETOR. Lat. In Roman law. A municipal
officer of the city of Rome, being the chief judicial
magistrate, and possessing an extensive equitable
jurisdiction.
PRIETOR FIDEI–COMMISSARIUS. In the civil
law. A special praetor created to pronounce judg-
ment in cases of trusts or fidei-commissa. Inst.
2, 23, 1.
PRIETORIAN LAW. See Lex Pretoria.
PRZEVARICATOR. Lat. In the civil law. One
who betrays his trust, or is unfaithful to his trust.
An advocate who aids the opposite party by be-
traying his client's cause. Dig. 47, 15, 1.
PRIEVENTO TERMINO. In old Scotch practice.
A form of action known in the forms of the court
of session, by which a delay to discuss a suspen-
sion or advocation was got the better of. Bell..
PRAGMATIC SANCTION. In French law. A
solemn ordinance or decree of a sovereign deal-
ing with matters of primal importance and re-
garded as constituting a part of the fundamental
law of the land. It originated in the .Byzantine
Empire; in later European history it was espec-
ially used to designate an ordinance-of Charles VI,
emperor of Germany, issued April, 1713, to settle
the succession on his daughter, Maria Theresa.
It was ratified by the Great Powers. On the death
of the emperor, it was repudiated by Prussia,
France and others, which led to the War of the
Austrian Succession. Int. Encycl.
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PRECATORY
In the civil law. The answer given by the em-
perors on questions of law, when consulted by a
corporation or the citizens of a province or of a
municipality. Lec.El.Dr.Rom. § 53.
PRAGMATICA. In Spanish colonial law. An or-
der emanating from the sovereign, and differing
from a cedula only in form and in the mode of
promulgation. Schm.Civil Law, Introd. 93, note.
PRAIRIE. An extensive tract of level or rolling
land, destitute of trees, covered with coarse grass,
and usually characterized by a deep, fertile soil.
Webster. Buxton v. Railroad Co., 58 Mo. 45;
Brunell v. Hopkins, 42 Iowa, 429.
PRATIQUE. A license for the master of a ship
to traffic in the ports of a given country, or with
the inhabitants of a given port, upon the lifting
of quarantine or production of a clean bill of
health.
PRAXIS. Lat. Use; practice.
PRAXIS JUDICUM EST INTERPRES LEGUM.
Hob. 96. The practice of the judges is the inter-
preter of the laws.
PRAY IN AID. In old English practice. To call
upon for assistance. In real actions, the tenant
might pray in aid or call for assistance of an-
other, to help him to plead, because of the feeble-
ness or imbecility of his own estate. 3 Bl.Comm.
300.
PRAYER. The request contained in a bill in
equity that the court will grant the process, aid,
or relief which the complainant desires. Also,
by extension, the term is applied to that part of
the bill which contains this request.
PRAYER OF PROCESS. A petition with which
a bill in equity used to conclude, to the effect that
a writ of subpoena might issue against the de-
fendant to compel him to answer upon oath all
the matters charged against him in the bill.
PREAMBLE. A clause at the beginning of a
constitution or statute explanatory of the reasons
for its enactment and the objects sought to be ac-
complished. Townsend v. State, 147 Ind. 624, 47
N.E. 19, 37 L.R.A. 294, 62 Am.St.Rep. 477; Fenner
v. Luzerne County, 167 Pa. 632, 31 A. 862.
It is not essential part of act, and neither enlarges nor
confers powers. Portland Van & Storage Co. v. Hoss, 139
Or. 434, 9 P.2d 122, 126, 81 A.L.R. 1136.
PREAPPOINTED EVIDENCE. The kind and de-
gree of evidence prescribed in advance (as, by
statute) as requisite for the proof of certain facts
or the establishment of certain instruments. It is
opposed to casual evidence, which is left to grow
naturally out of the surrounding circumstances.
PREAUDIENCE. The right of being heard be-
fore another. A privilege belonging to the Eng-
lish bar, the members of which are entitled to be
heard in their order, according to rank, beginning
with the king's attorney general, and ending with
barristers at large. 3 Steph.Comm. 387, note.
PREBEND. In English ecclesiastical law. A sti-
pend granted in cathedral churches; also, but im-
properly, a prebendary. A simple prebend is
merely a revenue; a prebend with dignity has
some jurisdiction attached to it. The term "pre-
bend" is generally confounded with "canonicate;"
but there is a difference between them. The for-
mer is the stipend granted to an ecclesiastic in
consideration of his officiating and serving in the
church; whereas the canonicate is a mere title or
spiritual quality which may exist independently
of any stipend. 2 Steph.Comm. 674, note.
PREBENDARY. An ecclesiastical person serving
on the staff of a cathedral, and receiving a stated
allowance or stipend from the income or endow-
ment of the cathedral, in compensation for his
services.
PRECARIZE, or PRECES. Day-works which the
tenants of certain manors were bound to give their
lords in harvest time. Magna precaria was a
great or general reaping day. Cowell.
PRECARIOUS. Liable to be returned or render-
ed up at the mere demand or request of another;
hence held or retained only on sufferance or by
permission; and by an extension of meaning,
doubtful, uncertain, dangerous, very liable to
break, fail, or terminate.
PRECARIOUS CIRCUMSTANCES. The circum-
stances of an executor are precarious, within the
meaning and intent of a statute, only when his
character and conduct present such evidence of
improvidence or recklessness in the management
of the trust-estate, or of his own, as in the opin-
ion of prudent and discreet men endangers its
security. Shields v. Shields, 60 Barb. (N.Y.) 56.
PRECARIOUS LOAN. A bailment by way of
loan which is not to continue for any fixed time,
but may be recalled at the mere will and pleasure
of the lender.
PRECARIOUS POSSESSION. In modern civil
law, possession is called "precarious" which one
enjoys by the leave of another and during his
pleasure. Civ.Code La. art. 3556, subd. 25.
PRECARIOUS RIGHT. The right which the own-
er of a thing transfers to another, to enjoy the
same until it shall please the owner to revoke it.
PRECARIOUS TRADE. In international law.
Such trade as may be carried on by a neutral be-
tween two belligerent powers by the mere suf-
ferance of the latter.
PRECARIUM. Lat. In the civil law. A conven-
tion whereby one allows another the use of a
thing or the exercise of a right gratuitously till
revocation. The bailee acquires thereby the law-
ful possession of the thing, except in certain cas-
es. The bailor can redemand the thing at any
time, even should he have allowed it to the bailee
for a designated period. Mackeld. Rom. Law, §
447.
PRECATORY. Having the nature of prayer, re-
quest, or entreaty; conveying or embodying a
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PRECATORY
recommendation or advice or the expression of a
wish, but not a positive command or direction.
United States v. 15,883.55 Acres of Land in Spar-
tanburg County, S. C., D.C.S.C., 40 F.Supp. 558,
561.
PRECATORY TRUST. A trust created by cer-
tain words, which are more like words of en-
treaty and permission than of command or cer-
tainty. Examples of such words, which the
courts have held sufficient to constitute a trust,
are "wish and request," "have fullest confidence,"
"heartily beseech," and the like. Rapalje & Law-
rence. Keplinger v. Keplinger, 185 Ind. 81, 113
N.E. 292, 293; Simpson v. Corder, 185 Mo.App.
398, 170 S.W. 357, 358. Thomas v. Reynolds, 234
Ala. 212, 174 So. 753, 757.
PRECATORY WORDS. Words of entreaty, re-
quest, desire, wish, or recommendation, employed
in wills, as distinguished from direct and impera-
tive terms. 1 Williams, Ex'rs, 88, 89, and note;
Pratt v. Miller, 23 Neb. 496, 37 N.W. 263; Wemme
v. First Church of Christ, Scientist, of Portland,
110 Or. 179, 219 P. 618, 627.
PRECAUTION. Previous action; proven fore-
sight; care previously employed to prevent mis-
chief or to secure good result; or a measure tak-
en beforehand; an active foresight designed to
ward off possible evil or secure good results. Fe-
gan v. Lykes Bros. S. S. Co., 198 La. 312, 3 So.2d
632, 635; Rincon v. Berg Co., Tex.Civ.App., 60 S.
W.2d 811, 813.
PRECEDENCE, or PRECEDENCY. The act or
state of going before; adjustment of place. The
right of being first placed in a certain order.
PRECEDENCE, PATENT OF. In English law.
A grant from the crown to such barristers as it
thinks proper to honor with that mark of distinc-
tion, whereby they are entitled to such rank and
preaudience as are assigned in their respective
patents. 3 Steph.Comm. 274.
PRECEDENT. An adjudged case or decision of
a court of justice, considered as furnishing an
example or authority for an identical or similar
case afterwards arising or a similar question of
law.
It means that a principle of law actually presented to a
court of authority for consideration and determination has,
after due consideration, been declared to serve as a rule
for future guidance in the same or analogous cases, but
matters which merely lurk in the record and are not direct-
ly advanced or expressly decided are not precedents. Em-
pire Square Realty Co. v. Chase Nat. Bank of City of New
York, 43 N.Y.S.2d 470, 473, 181 Misc. 752; Kvos, Inc. v.
Associated Press, 299 U.S. 269, 279, 57 S.Ct. 197, 81 L. Ed.
183.
A draught of a conveyance, settlement, will,
pleading, bill, or other legal instrument, which is
considered worthy to serve as a pattern for fu-
ture instruments of the same nature.
PRECEDENT CONDITION. Such as must hap-
pen or be performed before an estate can vest or
be enlarged. See Condition Precedent.
PRECEDENTS SUB SILENTIO. Silent uniform
course of practice, uninterrupted though not sup-
ported by legal decisions. Calton v. Bragg, 15
East, 226; Thompson v. Musser, 1 Dall. 464, 1 L.
Ed. 222.
PRECEDENTS THAT PASS SUB SILENTIO
ARE OF LITTLE OR NO AUTHORITY. 16 Vin.
Abr. 499.
PRECEDING. Next before. Smith v. Gibson,
1191 Ala. 305, 68 So. 143.
PRECEPARTIUM. The continuance of a suit by
consent of both parties. Cowell.
PRECEPT. In English and American law. An
order or direction, emanating from authority, to
an officer or body of officers, commanding him or
them to do some act within the scope of their
powers. A commandment in writing, sent out
by a justice of the peace or other like officer, for
the bringing of a person or record before him.
Cowell. The direction formerly issued by a sher-
iff to the proper returning officers of cities and
boroughs within his jurisdiction for the election
of members to'serve in parliament. 1 Bl.Comm.
178. The direction by the judges or commission-
ers of assize to the sheriff for the summoning a
sufficient number of jurors. 3 Steph.Comm. 516.
The direction issued by the clerk of the peace to
the overseers of parishes for making out the jury
lists. 3 Steph.Comm. 516, note.
Precept is not to be confined to civil proceedings, and is
not of a more restricted meaning than "process." It in-
cludes warrants and processes in criminal as well as civil
proceedings. Adams v. Vose, 1 Gray, Mass., 51, 58.
In old English criminal law. Instigation to
commit a crime. Bract. fol. 138b; Cowell.
In Scotch law. An order, mandate, or warrant
to do some act. The precept of seisin was the
order of a superior to his bailie, to give infeft-
ment of certain lands to his vassal. Bell.
In old French law. A kind of letters issued by
the king in subversion of the laws, being orders
to the judges to do or tolerate things contrary to
law.
PRECEPT OF CLARE CONSTAT. A deed in the
Scotch law by which a superior acknowledges
the title of the heir of a deceased vassal to suc-
ceed to the lands.
PRECES. Lat. In Roman law. Prayers. One of
the names of an application to the emperor. Tayl.
Civil Law, 230.
PRECES  In English ecclesiastical
law. A right of the crown to name to the first
prebend that becomes vacant after the accession
of the sovereign, in every church of the empire.
This right was exercised by the crown of England
in the reign of Edward L 2 Steph.Comm. 670,
note.
PRECINCT. A constable's or police district. The
immediate neighborhood of a palace or court.
A small geographical unit of government. An
election district created for convenient localization
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PRE—EMPTION
of polling places. Union Pac. Ry. Co. v. Ryan, 5
S.Ct. 601, 113 U.S. 516, 28 L.Ed. 1098; Railway Co.
v. Oconto, 50 Wis. 189, 6 N.W. 607, 36 Am.Rep.
840; Rich v. Industrial Commission, 80 Utah,
511, 15 P.2d 641, 645.
PRECIPE. Another form of the name of the writ-
ten instructions to the clerk of court; also spelled
"prcecipe," (q. v.).
PRECIPITATION. Hastening occurrence of event
or causing to happen or come to crisis suddenly,
unexpectedly or too soon. Knock v. Industrial
Acc. Commission of California, 200 Cal. 456, 253
P. 712, 714.
PRECIPITIN TEST. Precipitins are formations
in the blood of an animal induced by repeated in-
jections into its veins of the blood-serum of an ani-
mal of another species; and their importance in
diagnosis lies in the fact that when the blood-
serum of an animal so treated is mixed with that
of any animal of the second species (or a closely
related species) and the mixture kept at a tem-
perature of about 98 degrees for several hours,
a visible precipitate will result, but not so if the
second ingredient of the mixture is drawn from
an animal of an entirely different species. In
medico-legal practice, therefore, a suspected stain
or clot having been first tested by other methods
and demonstrated to be blood, the question wheth-
er it is the blood of a human being or of other
origin is resolved by mixing a solution of it with
a quantity of blood-serum taken from a rabbit or
some other small animal which has been previous-
ly prepared by injections of human blood-serum.
After treatment as above described, the presence
of a precipitate will furnish strong presumptive
evidence that the blood tested was of human ori-
gin. The test is not absolutely conclusive, for the
reason that blood from an anthropoid ape would
produce the same result, in this experiment, as
human blood. But if the alternative hypothesis
presented attributed the blood in question to some
animal of an unrelated species (as, a dog, sheep,
or horse) the precipitin test could be fully relied
on, as also in the case where no precipitate re-
sulted.
PRECIPUT. In French law. A portion of an es-
tate or inheritance which falls to one of the co-
heirs over and above his equal share with the
rest, and which is to be taken out before partition
is made.
PRECISE. Having determinate limitations. Wall
v. Pierpont, 119 Kan. 420, 240 P. 251, 258.
PRECLUDE. Estop. Morris Plan Bank of Fort
Worth v. Continental Nat. Bank of Fort Worth,
Tex.Civ.App., 155 S.W.2d 407, 409.
PRECLUDI NON. Lat. In pleading. The com-
mencement of a replication to a plea in bar, by
which the plaintiff "says that, by reason of any-
thing in the said plea alleged, he ought not to be
barred from having and maintaining his afore-
said action against him, the said defendant, be-
cause he says," etc. Steph.Pl. 440.
PRECOGNITION. In Scotch practice. Prelimi-
nary examination. The investigation of a crimi-
nal case, preliminary to committing the accused
for trial. 2 Alis.Crim.Pr. 134.
PRECOGNOSCE. In Scotch practice. To examine
beforehand. Arkley, 232.
PRECONIZATION. Proclamation.
PRECONTRACT. A contract or engagement
made by a person, which is of such a nature as to
preclude him from lawfully entering into another
contract of the same nature. 1 Bish.Mar. & Div.
§§ 112, 272.
PREDECESSOR. One who goes or has gone be
fore; the correlative of "successor." One who
has filled an office or station before the present
incumbent. Applied to a body politic or corpo-
rate, in the same sense as "ancestor" is applied to
a natural person. Lorillard Co. v. Peper, C.C.
Mo., 65 F. 597, 598.
In Scotch law. An ancestor. 1 Kames, Eq. 371.
PREDIAL SERVITUDE. A charge laid on an
estate for the use and utility of another estate
belonging to another owner. Civil Code La. art.
647. See PrEedial Servitude.
PREDICATE. In logic. That which is said con-
cerning the subject in a logical proposition; as,
"The law is the perfection of common sense."
"Perfection of common sense," being affirmed con-
cerning the law, (the subject,) is the predicate or
thing predicated. Wharton, Bourland v. Hil-
dreth, 26 Cal. 232.
PREDOMINANT. Something greater or superior
in power and influence to others with which it
is connected or compared. Matthews v. Bliss, 22
Pick. (Mass.) 53.
PRE–EMPTION. In international law. The right
of pre-emption is the right of a nation to detain
the merchandise of strangers passing through
her territories or seas, in order to afford to her
subjects the preference of purchase. 1 Chit.Com.
Law, 103.
According to general modern usage the doctrine of pre-
emption, as applied in time of war rests upon the distinc-
tion between articles which are contraband (q. v.) uni-
versally, and those which are contraband only under the
particular circumstances of the case. The carrying of the
former class entails the penalty of confiscation, either of
ship or cargo or both. The latter class, while confiscable
according to strict law, are sometimes merely subjected to
the milder belligerent right of pre-emption, which is re-
garded as a fair compromise between the right of the
belligerent to seize, and the claim of the neutral to export
his native commodities, though immediately subservient to
the purpose of hostility; 3 Phill.Int.L. 450; 1 C.Rob. 241.
The right of pre-emption is said to be rather a waiver of a
greater right than a right itself ; an indulgence to the
neutral rather than a right of the belligerent; Ward, Con-
traband 196.
In ,English law. The first buying of a thing.
A privilege formerly enjoyed by the crown, of
buying up provisions and other necessaries, by
the intervention of the king's purveyors, for the
use of his royal household, at an appraised valua-
tion, in preference to all others, and even with-
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PRE-EMPTION
out consent of the owner. 1 Bl.Comm. 287; Gar-
cia v. Callender, 125 N.Y. 307, 26 N.E. 283.
In the United Itates. A privilege accorded by
the government to the actual settler upon a cer-
tain limited portion of the public domain, to pur-
chase such tract at a fixed price to the exclusion
(of all other applicants. Nix v. Allen, 5 S.Ct. 70,
112 U.S. 129, 28 L.Ed. 675.
PRE-EMPTION CLAIMANT. One who has set-
tled upon land subject to pre-emption, with the
intention to acquire title to it, and has complied,
or is proceeding to comply, in good faith, with
the requirements of the law to perfect his right
to it. Hosmer v. Wallace, 97 U.S. 575, 581, 24 L.
Ed. 1130.
PRE-EMPTION ENTRY. See Entry.
PRE-EMPTION RIGHT. The right given to set-
tlers upon the public lands of the United States to
purchase them at a limited price in preference to
others.
PRE-EMPTIONER. One who, by settlement up-
on the public land, or by cultivation of a portion
of it, has obtained the right to purchase a por-
tion of the land thus settled upon or cultivated,
to the exclusion of all other persons. Dillingham
v. Fisher, 5 Wis. 480; Doe v. Beck, 108 Ala. 71,
19 So. 802.
PREFECT. In French law. The name given to
the public functionary who is charged in chief
with the administration of the laws, in each de-
partment of the country. Merl. Repert. See
Crespin v. U. S., 18 S.Ct. 53, 168 U.S. 208, 42 L.
Ed. 438. The term is also used, in practically the
same sense, in Mexico. But in New Mexico, a
prefect is a probate judge.
PREFER. To bring before; to prosecute; to try;
to proceed with. Thus, preferring an indictment
signifies prosecuting or trying an indictment.
To give advantage, priority, or privilege; to
select for first payment, as to prefer one creditor
over others.
PREFERENCE. The paying or securing to one
or more of his creditors, by an insolvent debtor,
the whole or a part of their claim, to the exclu-
sion of the rest. The act of an insolvent debtor
who, in distributing his property or in assigning
it for the benefit of his creditors, pays or secures
to one or more creditors the full amount of their
claims or a larger amount than they would be
entitled to receive on a pro rata distribution. Citi-
zens' State Bank of Chautauqua v. First Nat.
Bank of Sedan, 98 Kan. 109, 157 P. 392, 394, L.R.
A.1917A, 696. Jackson v. Coons, 285 Ky. 154, 147
S.W.2d 45, 47, 132 A.L.R. 1403. It imports the
relation of existing creditors having equal equi-
ties at the time of the transfer whereby the
rights of one are advanced over those of another.
Adams v. City Bank & Trust Co. of Macon, Ga.,
C.C.A.Ga., 115 F.2d 453, 454.
The trustee in bankruptcy, to establish a recoverable
"preference" under the Federal Bankruptcy Act, must
show a transfer of property or money to the creditor, dur-
ing insolvency and within four months of bankruptcy, that
the creditor had reasonable grounds for believing that the
bankrupt was then insolvent, and that the effect of the
transfer was to give the creditor a greater percentage of
his debt than other creditors of the same class. Walker v.
Wilkinson, C.C.A.Tex., 296 F. 850, 852. There must be a
parting with the bankrupt's property for the benefit of the
creditor and a subsequent diminution of his estate; Con-
tinental & Commercial T. & S. Bk. v. Trust Co., 33 S.Ct.
829, 229 U.S. 435, 57 L.Ed. 1268; N. Bk. of Newport v.
Bank, 32 S.Ct. 633, 225 U.S. 178, 56 L.Ed. 1042.
Also the right held by a creditor, in virtue of
some lien or security, to be preferred above others
(i. e., paid first) out of the debtor's assets con-
stituting the fund for creditors. Chadbourne v.
Harding, 80 Me. 580, 16 A. 248; In re Ratliff, D.C.
N.C., 107 F. 80: In re Stevens, 38 Minn. 432, 38 N.
W. 111.
PREFERENCE SHARE. One giving its holder a
preference, either as to receipt of dividends, as to
payment in case of winding up, or both. In re
Schaffer Stores Co., 229 N.Y.S. 735, 739, 224 App.
Div. 268.
A term used in English law to designate a new issue of
shares of stock in a company, which, to facilitate the dis-
posal of them, are accorded a priority or preference over
the original shares.
PREFERENTIAL ASSIGNMENT. An assign-
ment of property for the benefit of creditors,
made by an insolvent debtor, in which it is di-
rected that a preference (right to be paid first
in full) shall be given to a creditor or creditors
therein named.
PREFERENTIAL DEBTS. In bankruptcy. Those
which are prior to all others; as, wages of a
clerk, servant, or workman, rates due and taxes.
Brett, Comm. 890.
PREFERRED. Possessing or accorded a priority,
advantage, or privilege. Generally denoting a
prior or superior claim or right of payment as
against another thing of the same kind or class.
State v. Cheraw & C. R. Co., 16 S.C. 528.
PREFERRED DEBT. A demand which has prior-
ity; which is payable in full before others are
paid at all.
PREFERRED DIVIDEND. See Dividend.
PREFERRED DOCKETS. Lists of preference
cases prepared by the clerks when the cases are
set for trial. King v. New Orleans Ry. & Light
Co., 140 La. 843, 74 So. 168, 169.
PREFERRED STOCK. See Stock.
PREFET. In French law. A chief officer invest-
ed with the superintendence of the administra-
tion of the laws in each department. Merlin,
Repert.
PREGNANCY. In medical jurisprudence. The
state of a female who has within her ovary or
womb a fecundated germ. Dungl. Med. Dict. The
existence of the condition beginning at the mo-
ment of conception and terminating with delivery
of the child. State v. Loomis, 90 N.J.Law, 216,
100 A. 160, 161.
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Extra uterine or ectopic pregnancy is the development
of the ovum outside of the uterine cavity, as in the Fal-
lopian tubes or ovary. Extra uterine pregnancy commonly
terminates by rupture of the sac, profuse internal hemor-
rhage, and death if not relieved promptly by a surgical
operation.
PREGNANCY, PLEA OF. A plea which a wo-
man capitally convicted may plead in stay of
execution; for this, though it is no stay of judg-
ment, yet operates as a respite of execution until
she is delivered. Brown.
PREGNANT NEGATIVE. See Negative Preg-
nant.
PREJUDICE. A forejudgment; bias; precon-
ceived opinion. A leaning towards one side of a
cause for some reason other than a conviction of
its justice. Tegeler v. State, 130 P. 1164, 1167, 9
Okl.Cr. 138; Taylor v. F. W. Woolworth Co., 146
Kan. 841, 73 P.2d 1102, 1103.
Of judge. That which disqualifies judge is con-
dition of mind, which sways judgment and ren-
ders judge unable to exercise his functions im-
partially in particular case. Evans v. Superior
Court in and for Los Angeles County, 107 Cal.
App. 372, 290 P. 662, 665. It refers to mental at-
titude or disposition of the judge toward a party
to the litigation, and not to any views that he
may entertain regarding the .subject matter in-
volved. State ex rel. Mitchell v. Sage Stores Co.,
157 Kan. 622, 143 P.2d 652, 655.
Without prejudice. Where an offer or admis-
sion is made "without prejudice," or a motion is
denied or a bill in equity dismissed "without prej-
udice," it is meant as a declaration that no rights
or privileges of the party concerned are to be
considered as thereby waived or lost, except in
so far as may be expressly conceded or decided.
See, also, Dismissal Without Prejudice.
PREJUDICIAL ERROR. Error substantially af-
fecting appellant's legal rights and obligations.
Erskine v. Upham, 56 Cal.App.2d 235, 132 P.2d
219, 228; Trepanier v. Standard Min. & Mill. Co.,
58 Wyo. 29, 123 P.2d 378, 380.
PRELATE. A clergyman of a superior order, as
an archbishop or a bishop, having authority over
the lower clergy; a dignitary of the church.
Webster.
PRELEVEMENT. Fr. In French law. A pre-
liminary deduction; particularly, the portion or
share which one member of a firm is entitled to
take out of the partnership assets before a divi-
sion of the property is made between the partners.
PRELIMINARY. Introductory; initiatory; pre-
ceding; temporary and provisional; as prelimi-
nary examination, injunction, articles of peace,
etc.
PRELIMINARY ACT. In English admiralty prac-
tice. A document stating the time and place of
a collision between vessels, the names of the ves-
sels, and other particulars, required to be filed by
each solicitor in actions for damage by such col-
lisiQn, unless the court or a judge shall otherwise
order. Wharton.
PRELIMINARY EXAMINATION OR HEARING.
See Hearing.
PRELIMINARY INJUNCTION. See Injunction.
PRELIMINARY PROOF. In insurance. The
first proof offered of a loss occurring under the
policy, usually sent in to the underwriters with
the notification of claim.
PREMATURE LABOR. See Miscarriage.
PREMEDITATE. To think of an act beforehand,
to contrive and design; to plot or lay plans for
the execution of a purpose. See Deliberate.
PREMEDITATED DESIGN. In homicide cases.
The mental purpose, the formed intent, to take
human life. Radej v. State, 152 Wis. 503, 140 N.
W. 21, 22.
PREMEDITATEDLY. Thought of beforehand,
for any length of time, however short. State v.
Johnson, 92 Kan. 441, 140 P. 839, 840.
PREMEDITATION. The act of meditating in ad-
vance; deliberation upon a contemplated act;
plotting or contriving; a design formed to do
something before it is done. State v. Spivey, 132
N.C. 989, 43 S.E. 475; Parker v. State, 24 Wyo.
491, 161 P. 552, 554.
A prior determination to do an act, but such
determination need not exist for any particular
period before it is carried into effect. Common-
wealth v. Dreher, 274 Pa. 325, 118 A. 215, 216.
Premeditation differs essentially from will, which ,con-
stitutes the crime; because it supposes, besides an actual
will, a deliberation, and a continued persistence.
PREMIER. A principal minister of state; the
prime minister.
PREMIER SERJEANT, THE QUEEN'S. This
officer, so constituted by letters patent, has pre-
audience over the bar after the attorney and
solicitor general and queen's advocate. 3 Steph.
Comm. (7th Ed.) 274, note.
PREMISES. That which is put before; that
which precedes; the foregoing statements. Thus,
in logic, the two introductory propositions of the
syllogism are called the "premises," and from
them the conclusion is deduced. So, in pleading,
the expression "in consideration of the premises"
means in consideration of the matters herein-
before stated. Alaska Imp. Co. v. Hirsch, 119
Cal. 249, 47 P. 124; Meese v. Northern Pac. Ry.
Co., C.C.A.Wash., 211 F. 254, 259.
In conveyancing. That part of a deed which
precedes the habendum, in which are set forth
the names of the parties with their titles and ad-
ditions, and in which are recited such deeds,
agreements, or matters of fact as are necessary
to explain the reasons upon which the present
transaction is founded; and it is here, also, the
consideration on which it is made is set down
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PREMISES
and the certainty of the thing granted. 2 Bl.
Comm. 298. Liles v. Pitts, 145 La. 650, 82 So. 735,
738.
In equity pleading. The stating part of a bill.
It contains a narrative of the facts and circum-
stances of the plaintiff's case, and the wrongs of
which he complains, and the names of the per-
sons by whom done and against whom he seeks
redress. Story, Eq. Pl. § 27.
In estates. Lands and tenements; an estate;
land and buildings thereon; the subject-matter of
a conveyance. F. F. Proctor Troy Properties Co.
v. Dugan Store, 181 N.Y.S. 786, 788, 191 App.Div.
685. The area of land surrounding a house, and
actually or by legal construction forming one
inclosure with it. Ratzell v. State, Okl.Cr.App.,
228 P. 166, 168. A distinct and definite locality,
and may mean a room, shop, building, or other
definite area. Robinson v. State, 143 Miss. 247,
108 So. 903, 905, or a distinct portion of real es-
tate. Ruble v. Ruble, Tex.Civ.App., 264 S.W. 1018,
1020.
The term "premises" is used in common parlance to sig-
nify land, with its appurtenances; but its usual and ap-
propriate meaning in a conveyance is the interest or estate
demised or granted by the deed. State v. French, 120 Ind.
229, 22 N.E. 108; Cooper v. Robinson, 302 Ill. 181, 134 N.E.
119, 120.
"Premises" of the employer as used in Work-
men's Compensation Acts means on the property
owned, leased, or controlled by the employer and
so connected with the business in which the em-
ployee is engaged as to form a component or in-
tegral part of it. Werner v. Allegheny County,
153 Pa.Super. 10, 33 A.2d 451, 453.
The words "premises" and "plant" are sometimes dis-
tinguished; "premises" refers to place and territory, while
"plant" includes place and territory, together with the
appliances and things which go to make the facilities for
the execution of the design and purposes of the enterprise.
Martin v. Matson Na y . Co., D.C.Wash., 244 F. 976, 977.
In insurance law. The subject-matter insured
in a policy. 4 Campb. 89.
PREMIUM. A reward for an act done. Brown
v. Board of Police Com'rs of City of Los Angeles,
58 Cal.App.2d 473, 136 P.2d 617, 619.
A bounty or bonus; a consideration given to
invite a loan or a bargain; as the consideration
paid to the assignor by the assignee of a lease,
or to the transferrer by the transferee of shares
of stock, etc. So stock is said to be "at a pre-
mium" when its market price exceeds its nominal
or face value. Boston & M. R. R. v. U. S., C.C.A.
Mass., 265 F. 578, 579. See Par.
In granting a lease, part of the rent is some-
times capitalized and paid in a lump sum at the
time the lease is granted. This is called a "pre-
mium."
The sum paid or agreed to be paid by an as-
sured to the underwriter as the consideration for
the insurance. Wade v. National Bank of Com-
merce, 144 Minn. 187, 174 N.W. 889, 890.
Premium note. A promissory note given by
the insured for part or all of the amount of the
premium.
Unearned premium. That portion which must
be returned to insured on cancellation of policy.
/Etna Ins. Co. v. Hyde, 315 Mo. 113, 285 S.W. 65,
71.
PREMIUM PUDICITIZE. The price of chastity.
A compensation for the loss of chastity, paid or
promised to, or for the benefit of, a seduced fe-
male.
PREMUNLRE. See Prfemunire.
PRENDA. In Spanish law. Pledge. White, New
Recop. b. 2, tit. 7.
PRENDER, PRENDRE. L. Fr. To take. The
power or right of taking a thing without waiting
for it to be offered. See A Prendre.
PRENDER DE BARON. L. Fr. In old English
law. A taking of husband; marriage. An excep-
tion or plea which might be used to disable a wo-
man from pursuing an appeal of murder against
the killer of her former husband. Staundef. P.
C. lib. 3, c. 59.
PRENOMEN. (Lat.) The first or Christian name
of a person. See Cas. Hardw. 286; 1 Tayl. 148.
PREPARATION. For offense consists in devis-
ing or arranging means or measures necessary
for its commission, while attempt is direct move-
ment toward commission after preparations are
made. People v. George, 74 Cal.App. 440, 241 P.
97, 100. State v. Quick, 199 S.C. 256, 19 S.E.2d 101,
103.
PREPARE. To provide with necessary means;
to make ready; to provide with what is appro-
priate or necessary. Brennan v. Northern Elec-
tric Co., 72 Mont. 35, 231 P. 388, 389.
PREPARED COAL. In anthracite coal trade
means sizes of coal above pea. New York, N. H.
& H. R. Co. v. Salter, 104 Conn. 728, 134 A. 220,
222.
PREPENSE. Forethought; preconceived; pre-
meditated. See Territory v. Bannigan, 1 Dak. 451,
46 N.W. 597; People v. Clark, 7 N.Y. 385.
PREPONDERANCE. Greater weight of evidence,
or evidence which is more credible and convinc-
ing to the mind. Button v. Metcalf, 80 Wis. 193,
49 N.W. 809. That which best accords with rea-
son and probability. U. S. v. McCaskill, D.C.Fla.,
200 F. 332. The word "preponderance" means
something more than "weight"; it denotes a su-
periority of weight, or outweighing. The words
are not synonymous, but substantially different.
There is generally a "weight" of evidence on each
side in case of contested facts. But juries cannot
properly act upon the weight of evidence, in fa-
vor of the one having the onus, unless it over-
bear, in some degree, the weight upon the other
side. Mathes v. Aggler & Musser Seed Co., 178
P. 713, 715, 179 Cal. 697; Barnes v. Phillips, 184
Ind. 415, 111 N.E. 419. See, also, Weight of Evi-
dence.
It rests with that evidence which, when fairly considered,
produces the stronger impression, and has the greater
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PRESCRIPTION
weight, and is more convincing as to its truth when
weighed against the evidence in opposition thereto. S. Ya-
mamoto v. Puget Sound Lumber Co., 84 Wash. 411, 146 P.
861, 863; but it does not mean greater number of wit-
nesses. Heerdink v. Kohmescher, 94 Ind.App. 296, 180 N.E.
683, 684.
Preponderance of evidence may not be determined by
the number of witnesses, but by the greater weight of all
evidence, which does not necessarily mean the greater
number of witnesses, but opportunity for knowledge, in-
formation possessed, and manner of testifying determines
the weight of testimony. Garver v. Garver, 52 Colo. 227,
121 P. 165, 166, Ann.Cas.1913D, 674.
PREROGATIVE. An exclusive or peculiar privi-
lege. The special power, privilege, immunity, or
advantage vested in an official person, either gen-
erally, or in respect to the things of his office, or
in an official body, as a court or legislature. At-
torney General v. Blossom, 1 Wis. 317; Attorney
General v. Eau Claire, 37 Wis. 443.
In English law. A power or will which is dis-
cretionary, and above and uncontrolled by any
other will. That special pre-eminence which the
king (or queen) has over and above all other per-
sons, in right of his (or her) regal dignity. A
term used to denote those rights and capacities
which the sovereign enjoys alone, in contradis-
tinction to others. 1 Bl.Comm. 239. It is some-
times applied by law writers to the thing over
which the power or will is exercised, as fiscal
prerogatives, meaning king's revenues; 1 Hal-
leck, Int. L. 147.
PREROGATIVE COURT. In English law. A
court established for the trial of all testamentary
causes, where the deceased left bona notabilia
within two different dioceses; in which case the
probate of wills belonged to the archbishop of
the province, by way of special prerogative. And
all causes relating to the wills, administrations,
or legacies of such persons were originally cog-
nizable herein, before a judge appointed by the
archbishop, called the "judge of the prerogative
court," from whom an ap p eal lay to the privy
council. 3 Bl.Comm. 66; 3 Steph.Comm. 432.
In New Jersey the prerogative court is the court of ap-
peal from decrees of the orphans' courts in the several
counties of the state. The court is held before the chan-
cellor, under the title of the "ordinary." Flanigan v. Gug-
genheim Smelting Co., 63 N.J.L. 647, 44 A. 762; Robinson
v. Fair, 128 U.S. 53, 9 S.Ct. 30, 32 L. Ed. 415.
PREROGATIVE LAW. That part of the common
law of England which is more particularly applic-
able to the king. Com. Dig. tit. "Ley," A.
PREROGATIVE WRITS. In English law, the
name is given to certain judicial writs issued by
the courts only upon proper cause shown, never
as a mere matter of right, the theory being that
they involve a direct interference by the govern-
ment with the liberty and property of the sub-
ject, and therefore are justified only as an exer-
cise of the extraordinary power (prerogative) of
the crown. In America, a theory has sometimes
been advanced that these writs should issue only
in cases publici juris and those affecting the sov-
ereignty of the state, or its franchises or preroga-
tives, or the liberties of the people. But their is-
suance is now generally regulated by statute, and
the use of the term "prerogative," in describing
them, amounts only to a reference to their origin
and history. These writs are the writs of man-
damus, procedendo, prohibition, quo warranto, ha-
beas corpus, and certiorari. Click v. Click, 98 W.
Va. 419, 127 S.E. 194, 195.
PRES. L. Fr. Near. Cy pres, so near; as near.
See Cy Pres.
PRESBYTER. Lat. In civil and ecclesiastical
law. An elder; a presbyter; a priest. Cod. 1,
3, 6, 20; Nov. 6.
PRESBYTERIANISM. One of the principal sys-
tems of church polity known as the "Christian
Protestant Church", occupying an intermediate
position between episcopacy and congregational-
ism. Trustees of Pencader Presbyterian Church
in Pencader Hundred v. Gibson, Del., 22 A.2d 782,
788. A religious faith or doctrine, based on the
Westminster Confession of Faith and the Larger
and Shorter Catechisms. In re McKean's Estate,
152 Pa.Super. 613, 33 A.2d 51, 52.
PRESBYTERIAN SYSTEM. That type of church
organization in which the congregation is but a
unit in a larger body which governs. Doughty
v. Herr, 97 Ind.App. 427, 185 N.E. 657, 658.
PRESBYTERIUM. That part of the church
where divine offices are performed; formerly ap-
plied to the choir or chancel, because it was the
place appropriated to the bishop, priest, and other
clergy, while the laity were confined to the body
of the church. Jacob.
PRESCRIBABLE. That to which a right may be
acquired by prescription.
PRESCRIBE. To assert a right or title to the en-
joyment of a thing, on the ground of having hith-
erto had the uninterrupted and immemorial en-
joyment of it.
To lay down authoritatively as a guide, direc-
tion, or rule; to impose as a peremptory order;
to dictate; to point; to direct; to give as a guide,
direction, or rule of action; to give law. State v.
Truax, 130 Wash. 69, 226 P. 259, 260, 33 A.L.R.
1206; McMahon v. Devlin, 254 N.Y. 397, 173 N.E.
560, 561.
To direct; define; mark out. Field v. Marye,
83 Va. 882, 3 S.E. 707.
In modern statutes relating to matters of an administra-
tive nature, such as procedure, registration, etc., it is usual
to indicate in general terms the nature of the proceedings
to be adopted, and to leave the details to be prescribed or
regulated by rules or orders to be made for that purpose
in pursuance of an authority contained in the act. Sweet.
Mansfield v. People, 164 Ill. 611, 45 N.E. 976.
In a medical sense prescribe means to direct,
designate, or order use of a remedy. State v.
Whipple, 143 Minn. 403, 173 N.W. 801, 802.
PRESCRIPTION. A direction of remedy or rem-
edies for a disease and the manner of using them;
a formula for the preparation of a drug and med-
icine. People v. Cohen, 94 Misc. 355, 157 N.Y.S.
591, 593.
Black's Law Dictionary Revised 4th Ed.-85
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International Law
Acquisition of sovereignty over a territory
through continuous and undisputed exercise of
sovereignty over it during such a period as is nec-
essary to create under the influence of historical
development the general conviction that the pres-
ent condition of things is in conformity with in-
ternational order. State of Arkansas v. State of
Tennessee, Ark. & Tenn., 60 S.Ct. 1026, 1030, 310
U.S. 563, 84 L.Ed. 1362.
Real Property Law
The name given to a mode of acquiring ti-
tle to incorporeal hereditaments by immemorial
or long-continued enjoyment. Zetrouer v. Zetrou-
er, 89 Fla. 253, 103 So. 625, 627. Hester v. Saw-
yers, 41 N.M. 497, 71 P.2d 646, 649, 112 A.L.R. 536.
To create an easement by "prescription," the use must
have been open, continuous, exclusive, and under claim of
right for statutory period. Burk v. Diers, 102 Neb. 721,
169 N.W. 263, 264.
"Prescription" is the term usually applied to incorporeal
hereditaments, while "adverse possession" is applied to
lands. Hindley v. Metropolitan EL R. Co., 85 N.Y.S. 561,
42 Misc. 56.
In Louisiana, prescription is defined as a manner of ac-
quiring the ownership of property, or discharging debts,
by the effect of time, and under the conditions regulated
by law. Each of these prescriptions has its special and par-
ticular definition. The prescription by which the owner-
ship of property is acquired, is a right by which a mere
possessor acquires the ownership of a thing which he pos-
sesses by the continuance of his possession during the time
fixed by law. The prescription by which debts are re-
leased, is a peremptory and perpetual bar to every species
of action, real or personal, when the creditor has been
silent for a certain time without urging his claim. Civ.
Code La. arts. 3457-3459. In this sense of the term it is
very nearly equivalent to what is elsewhere expressed by
"limitation of actions," or rather, the "bar of the statute
of limitations."
There is a distinction between title by "limitation" and
a "prescriptive title," in that the latter is based upon a
presumed grant to the property or use, while the former
is not, Abel v. Love, 81 Ind. App. 328, 143 N.E. 515, 520,
while the distinction between a highway by prescription
and one by dedication is that "prescription" is an adverse
holding under color of right, while a "dedication," whether
expressed or implied, rests upon the consent of the owner.
Hatch Bros. Co. v. Black, 25 Wyo. 416, 171 P. 267, 270.
"Prescription" and "custom" are frequently confounded
in common parlance, arising perhaps from the fact that
immemorial usage was essential to both of them ; but,
strictly, they materially differ from one another, in that
custom is properly a local impersonal usage, such as bor-
ough-English, or postremogeniture, which is annexed to a
given estate, while prescription is simply personal, as that
a certain man and his ancestors, or those whose estate he
enjoys, have immemorially exercised a right of pasture-
common in a certain parish, and usage differs from both,
for it may be either to persons or places. Again, prescrip-
tion has its origin in a grant, evidenced by usage, and is
allowed on account of its loss, either actual or supposed,
and therefore only those things can be prescribed for which
could be raised by a grant previously to 8 & 9 Vict. c. 106,
§ 2; but this principle does not necessarily hold in the case
of a custom. Wharton; Olin v. Kingsbury, 168 N.Y.S. 766,
770, 181 App. Div. 348.
In General
Corporations by prescription. In English law.
Those which have existed beyond the memory of
man, and therefore are looked upon in law to be
well created, such as the city of London.
Prescription act. The statute 2 & 3 Wm. IV. c.
71, passed to limit the period of prescription in
certain cases.
Prescription in a que estate. A claim of pre-
scription based on the immemorial enjoyment of
the right claimed, by the claimant and those for-
mer owners "whose estate" he has succeeded to
and holds. Donnell v. Clark, 19 Me. 182.
Time of prescription. The length of time neces-
sary to establish a right claimed by prescription
or a title by prescription. Before the act of 2 &
3 Wm. IV. c. 71, the possession required to consti-
tute a prescription must have existed "time out
of mind" or "beyond the memory of man," that
is, before the reign of Richard I.; but the time
of prescription, in certain cases, was much short-
tened by that act. 2 Steph.Comm. 35.
PRESENCE. Act, fact, or state of being in a
certain place and not elsewhere, or within sight or
call, at hand, or in some place that is being
thought of. London v. Maryland Casualty Co.,
10 Minn. 581, 299 N.W. 193, 194; the existence of
a person in a particular place at a given time
particularly with reference to some act done
there and then. Besides actual presence, the law
recognizes constructive presence, which latter
may be predicated of a person who, though not on
the very spot, was near enough to be accounted
present by the law, or who was actively co-oper-
ating with another who was actually present.
Mitchell v. Com., 33 Grat., Va., 868.
PRESENCE OF AN OFFICER. An offense is
committed in "presence" or "view" of officer, with-
in rule authorizing arrest without warrant, when
officer sees act constituting it, though at distance,
or when circumstances within his observation give
probable cause for belief that defendant has com-
mitted offense, or when he hears disturbance cre-
ated by offense and proceeds at once to scene, or
if offense is continuing, or has not been fully
consummated when arrest is made. Kennington-
Saenger, Inc., v. Wicks, 168 Miss. 566, 151 So. 549,
551. Mantei v. State, 210 Wis. 1, 245 N.W. 683,
684.
PRESENCE OF THE COURT. A contempt is in
the "presence of the court," if it is committed in
the ocular view of the court, or where the court
has direct knowledge of the contempt. People v.
Cochrane, 307 Ill. 126, 138 N.E. 291, 293.
PRESENCE OF THE TESTATOR. Will is at-
tested in presence of testator if witnesses are
within range of any of testator's senses. In re
Demaris' Estate, 166 Or. 36, 110 P.2d 571, 585, 586.
PRESENT, v. In English ecclesiastical law. To
offer a clerk to the bishop of the diocese, to be in-
stituted. 1 Bl.Comm. 389.
In criminal law. To find or represent judicially;
used of the official act of a grand jury when they
take notice of a crime or offense from their own
knowledge or observation, without any bill of in-
dictment laid before them. To lay before judge,
magistrate, or governing body for action or con-
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sideration; submit as a petition or remonstrance
for a decision or settlement to proper authorities.
Haynes v. State, 108 Tex.Cr.R. 62, 299 S.W. 234,
235.
In the law of negotiable instruments. Primar-
ily, to present is to tender or offer. Thus, to pre-
sent a bill of exchange for acceptance or payment
is to exhibit it to the drawee or acceptor, (or his
authorized agent,) with an express or implied de-
mand for acceptance or payment. Byles, Bills,
183, 201.
Claims are "presented" to the probate court
when placed in the custody of the court, or filed
or made a matter of record therein, State v. Pro-
bate Court of Hennepin County, 145 Minn. 344,
177 N.W. 354, 11 A.L.R. 242; and to present claim
against city, within statute providing that claims
for damages against the city must be "presented"
to the city or town council and filed with the city
or town clerk, means to hand to and leave with.
Titus v. City of Montesano, 106 Wash. 608, 181 P.
43, 46.
PRESENT, n. A gift; a gratuity; anything pre-
sented or given.
PRESENT, adj. Now existing; at hand; relat-
ing to the present time; considered with reference
to the present time.
Present conveyance. A conveyance made with
the intention that it take effect at once and not
at a future time. Prior v. Newsom, 144 Ark. 593,
223 S.W. 21, 22.
Present enjoyment. The immediate or present
possession and use of an estate or property, as
distinguished from such as is postponed to a fu-
ture time.
Present estate. An estate in immediate posses-
sion; one now existing, or vested at the present
time; as distinguished from a future estate, the
enjoyment of which is postponed to a future time.
Present interest. One which entitles the owner
to the immediate possession of the property.
Present time. A period of appreciable and gen-
erally considerable duration within which certain
transactions are to take place. Corscot v. State,
178 Wis. 661, 190 N.W. 465, 468.
Present use. One which has an immediate ex-
istence, and is at once operated upon by the stat-
ute of uses.
PRESENTATION. In ecclesiastical law. The act
of a patron or proprietor of a living in offering or
presenting a clerk to the ordinary to be instituted
in the benefice.
PRESENTATION OFFICE. The office of the lord
chancellor's official, the secretary of presentations,
who conducts all correspondence having reference
to the twelve canonries and six hundred and fifty
livings in the gift of the lord chancellor, and
draws and issues the fiats of appointment. Sweet.
PRESENTATIVE ADVOWSON, See Advowson.
PRESENTEE. In ecclesiastical law. A clerk who
has been presented by his patron to a bishop in
order to be instituted in a church.
PRESENTER. One that presents.
PRESENTLY. Immediately; now; at once. A.
right which may be exercised "presently" is op-
posed to one in reversion or remainder.
PRESENTMENT.
Criminal Practice
The written notice taken by a grand jury of
any offense, from their own knowledge or observa-
tion, without any bill of indictment laid before
them at the suit of the government. 4 Bl. Comm.
301; Bennett v. Kalamazoo Circuit Judge, 183
Mich. 200, 150 N.W. 141, 142, Ann.Cas.1916E, 223.
Presentments are also made in courts-leet and
courts-baron, before the stewards. Steph. Comm.
644.
The writing which contains the accusation so
presented by a grand jury. U. S. v. Hill, 1 Brock.
156, Fed.Cas.No.-15,364.
In an extended sense, the term includes not only
presentments properly so called, but also inquisi-
tions of office and indictments found by a grand
jury. 2 Hawk. Pl. Cr. c. 25, § 1.
An informal statement in writing, by the grand jury,
representing to the court that a public offense has been
committed which is triable in the county, and that there is
reasonable ground for believing that a particular individ-
ual named or described therein has committed it. Eason v.
State, 11 Ark. 482; State v. Kiefer, 90 Md. 165, 44 A. 1043.
An accusation of crime, made by a grand jur y  from their
own knowledge or from evidence furnished them by wit-
nesses or by one or more of their members. In re Report
of Grand Jury of Baltimore City, 152 Md. 616, 137 A. 370,
372.
The difference between a presentment and an inquisition
is this : that the former is found by a grand jury author-
ized to inquire of offenses generally, whereas the latter i§
an accusation found by a jury specially returned to inquire
concerning the particular offense. 2 Hawk.P1.Cr. c. 25, § 6.
An indictment differs from a presentment in that the
former must be indorsed "A true bill," followed by the
signature of the grand jury foreman; a presentment is to
be signed by all the grand jurors, and hence does not have
to be indorsed "A true bill." Martin v. State, 127 Tenn.
324, 155 S.W. 129, 130.
The distinction between a special presentment and a bill
of indictment, even under the old practice, was very thin;
and in Georgia even this distinction has been abolished in
practice for many years. The solicitor is not now required
to frame any indictment on a special presentment, but the
special presentment of the grand jury is returned into
court, and upon it the defendant is arraigned and tried.
It has the same force and effect as a bill of indictment.
The only formal difference between the two is that a prose-
cutor prefers a bill of indictment, and a special present-
ment has no prosecutor, but, in theory, originates with the
grand jury (Progress Club v. State, 12 Ga.App. 174, 76 S.E.
1029, 1030). Even this difference between a bill of indict-
ment and a special presentment no longer exists, and the
finding of the grand jury is prepared by the solicitor-gen-
eral and called a bill of indictment, or a special present-
ment, at his will. Head v. State, 32 Ga.App. 331, 123 S.E.
34.
Negotiable Instruments
The production of a bill of exchange to the
drawee for his acceptance, or to the drawer or
acceptor for payment; or of a promissory note to
the party liable, for payment of the same.
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PRESENTS
PRESENTS. The present instrument. The
phrase "these presents" is used in any legal docu-
ment to designate the instrument in which the
phrase itself occurs.
PRESERVATION. Keeping safe from harm;
avoiding injury, destruction, or decay. This term
always presupposes a real or existing danger.
State ex rel. Pollock v. Becker, 289 Mo. 660, 233
S.W. 641, 649. It is not creation, but the saving
of that which already exists, and implies the con-
tinuance of what previously existed. McKeon v.
Central Stamping Co., C.C.A.N.J., 264 F. 385, 387.
PRESERVE. With reference to foodstuffs, to pre-
pare in such a manner as to resist decomposition
or fermentation; to prevent from spoiling by the
use of preservative substances with or without
the use of the agency of heat. U. S. v. Dodson,
D.C.Cal., 268 F. 397, 403. The word "preserved,"
when applied to meat, implies that it has been so
processed that its preservation is of permanent
character. U. S. v. Conkey & Co., 12 Ct.Cust.App.
552, 554.
PRESIDE. To occupy the place of authority or
of president, chairman, moderator, etc., to direct,
control or regulate proceedings as chief officer or
to preside at public meetings, to preside over the
senate. Drake v. Drake, 187 Ga. 423, 1 S.E.2d
573, 575. To preside over a court is to "hold" it,—
to direct, control, and govern it as the chief officer.
A judge may "preside" whether sitting as a sole
judge or as one of several judges. Smith v. Peo-
ple, 47 N.Y. 334.
PRESIDENT. One placed in authority over oth-
ers; a chief officer; a presiding or managing of-
ficer; a governor, ruler, or director. The chair-
man, moderator, or presiding officer of a legisla-
tive or deliberative body, appointed to keep order,
manage the proceedings, and govern the admin-
istrative details of their business.
The chief officer of a corporation, company,
board, committee, etc., generally having the main
direction and administration of their concerns.
Roe v. Bank of Versailles, 167 Mo. 406, 67 S.W.
303. The term does not ordinarily include "vice
president." First Nat. Bank v. C. H. Meyers &
Co., Tex.Civ.App., 283 S.W. 265, 266.
The chief executive magistrate of a state or na-
tion, particularly under a democratic form of gov-
ernment; or of a province, colony, or dependency,
In the United States, the word is commonly used in ref
erence to the private as well as public character of the
nation's chief executive. U. S. v. Metzdorf, D.C.Mont., 252
F. 933, 937.
In English law. A title formerly given to the
king's lieutenant in a province; as the president
of Wales. Cowell.
This word is also an old though corrupted form
of "precedent," (q. v.,) used both as a French and
English word. Le president est rare. Dyer, 136.
PRESIDENT JUDGE. A title sometimes given to
the presiding judge. It was formerly used in
England and is now used in the courts of common
?pleas in Pennsylvania. So in the old Virginia
court of appeals. The lord chief justice is now
permanent president of the high court of justice
in England. The title president is said to have a
high Norman flavor. Inderwick, King's Peace
225.
PRESIDENT OF THE COUNCIL. In English law.
A great officer of state; a member of the cabinet.
He attends on the sovereign, proposes business at
the council-table, and reports to the sovereign the
transactions there. 1 Bl. Comm. 230.
PRESIDENT OF THE UNITED STATES. The
official title of the chief executive officer of the
federal government in the United States.
PRESIDENTIAL ELECTORS. A body of electors
chosen in the different states, whose sole duty it
is to elect a president and vice-president of the
United States. Each state appoints, in such man-
ner as the legislature thereof may direct, a num-
ber of electors equal to the whole number of sen-
ators and representatives to which the state is
entitled in congress. Const. U. S. art. 2, § 1; Mc-
Pherson v. Blacker, 13 S.Ct. 3, 146 U.S. 1, 36 L.Ed.
869. The usual method of appointment is by gen-
eral ballot, so that each voter in a state votes for
the whole number of electors to which his state
is entitled.
PRESIDING JUDGE. This term, in statutes re-
quiring exceptions to be signed by the judge who
presides at the trial, means the judge presiding
at the trial of which a review is sought; hence
exceptions saved at a first trial, contained in bill
of exceptions signed by the judge presiding at a
second trial, are not reviewable. Tucker v. Yan-
dow, 100 Vt. 169, 135 A. 600, 601.
PRESS. In old practice. A piece or skin of
parchment, several of which used to be sewed to-
gether in making up a roll or record of proceed-
ings. 1 Bl. Comm. 183; Townsh. Pl. 486.
Metaphorically, the aggregate of publications
issuing from the press, or the giving publicity to
one's sentiments and opinions through the me-
dium of printing; as in the phrase "liberty of the
press."
PRESSING SEAMEN. See Impressment.
PRESSING TO DEATH. See Peine Forte et Dure.
PREST. In old English law. A duty in money to
be paid by the sheriff upon his account in the ex-
chequer, or for money left or remaining in his
hands. Cowell.
PREST MONEY. A payment which binds those
who receive it to be ready at all times appointed,
being meant especially of soldiers. Cowell.
PRESTATION. In old English law. A presting
or payment of money. Cowell. A payment or
performance; the rendering of a service.
In international law. The term is sometimes
used of a right by which neutral vessels may be
appropriated by way of hire by a belligerent on
payment of freight beforehand. In 1870 the Prus-
sian troops sank six British vessels to obstruct
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PRESUMPTION
navigation in the river Seine. Indemnification
was subsequently made. 1 Halleck, Int. L. Bak-
er's Ed. 520.
PRESTATION MONEY. A sum of money paid by
archdeacons yearly to their bishop; also purvey-
ance. Cowell.
PRESTIMONY, or PR2ESTIMONIA. In canon
law. A fund or revenue appropriated by the
founder for the subsistence of a priest, without
being erected into any title or benefice, chapel,
prebend, or priory. It is not subject to the ordi-
nary; but of it the patron, and those who have a
right from him, are the collators. Wharton.
PRESUMABLY. Fit to be assumed as true in ad-
vance of conclusive evidence; credibly deduced;
fair to suppose; by reasonable supposition or in-
ference; what appears to be entitled to belief
without direct evidence. Kurth v. Continental Life
Ins. Co., 234 N.W. 201, 202, 211 Iowa 736; Mitchell
v. Equitable Life Assur. Soc. of U. S., 205 N.C. 726,
172 S.E. 495, 496.
PRESUME. To assume beforehand. Hickman v.
Union Electric Light & Power Co., Mo.Sup., 226
S.W. 570, 576. In a more technical sense, to be-
lieve or accept upon probable evidence. It is not
so strong a word as "infer";` Morford v. Peck, 46
Conn. 385; though often used with substantially
the same meaning; State v. Schuck, 51 N.D. 875,
201 N.W. 342, 345.
PRESUMPTICO, See Prtesumptio; Presumption.
PRESUMPTION. Of fact. An inference affirma-
tive or disaffirmative of the truth or falsehood of
any proposition or fact drawn by a process of
probable reasoning in the absence of actual cer-
tainty of its truth or falsehood, or until such cer-
tainty can be ascertained. Best, Pres. § 3.
An inference affirmative or disaffirmative of the existence
of a disputed fact, drawn by a judicial tribunal, by a
process of probable reasoning, from some one or more mat-
ters of fact, either admitted in the cause or otherwise satis-
factorily established. Best, Pres. § 12. An inference as to
the existence of a fact not known, arising from its con-
nection with the facts that are known, and founded upon a
knowledge of human nature and the motives which are
known to influence human conduct. Hawes v. State of
Georgia, 42 S.Ct. 204, 258 U.S. 1, 66 L.Ed. 431. An infer-
ence as to the existence of some fact drawn from the exist-
ence of some other fact; an inference which common sense
draws from circumstances usually occurring in such cases.
1 Phil.Ev. 436; 3 B. & Ad. 890. A strong probability or
reasonable supposition. In re Van Tassell's Will, 196
N.Y.S. 491, 494, 119 Misc. 478. That which may be assumed
without proof or taken for granted as self-evident result
of human reason and experience. Watkins v. Prudential
Ins. Co. of America, 315 Pa. 497, 173 A. 644, 647, 95 A.L.R.
869.
A conclusion reached by means of the weight of proved
circumstances. Marquet v. A zEtna Life Ins. Co., 128 Tenn.
213, 159 S.W. 733, 736, L.R.A.1915B, 749, Ann.Cas.1915B,
677.
Presumptions of fact are not the subject of fixed rules,
but are merely natural presumptions, such as appear, from
common experience, to arise from the particular circum-
stances of any case. Some of these are "founded upon a
knowledge of the human character, and of the motives,
passions, and feelings by which the mind is usually in-
fluenced." 1 Stark. Ev. 27. They may be said to be the
conclusions drawn by the mind from the natural connec-
tion of the circumstances disclosed in each case, or, In
other words, from circumstantial evidence.
Of Law. A rule of law that courts and judges
shall draw a particular inference from a particular
fact, or from particular evidence, unless and un-
til the truth of such inference is disproved. Steph.
Ev. 4; Lane v. Missouri Pac. Ry. Co., 132 Mo. 4,
33 S.W. 645. A rule which, in certain cases, either
forbids or dispenses with any ulterior inquiry. 1
Greenl. § 14.
A consequence which the law or the judge draws from a
known fact to a fact unknown. In re Cowdry's Will, 77 Vt.
359, 60 A. 141, 142. A rule of law laid down by the judge
and attaching to evidentiary facts certain procedural con-
sequences as to the duty of production of other evidence by
the opponent. If the opponent does offer evidence to the
contrary, the presumption disappears, and the case stands
upon the facts and the reasonable inferences to be drawn
therefrom. Kramer v. Nichols-Chandler Home Building &
Brokerage Co., 103 Okl. 208, 229 P. 767, 768. A conclusion,
which, in the absence of evidence upon the exact question,
the law draws from other proof made or from facts judi-
cially noticed or both, the burden of proof cast by it being
satisfied by the presentation of evidence sufficient to con-
vince the jury that the probabilities of truth are against
the party whom the presumption relieves of the burden of
proof. State ex rel. Detroit Fire & Marine Ins. Co. v.
Ellison, 268 Mo. 239, 187 S.W. 23, 26. Presumptions of law
are divided into conclusive presumptions and disputable
presumptions.
A conclusive presumption, called also an "absolute" or
"irrebuttable" presumption, is a rule of law determining
the quantity of evidence requisite for the support of a
particular averment which is not permitted to be overcome
by any proof that the fact is otherwise. 1 Greenl.Ev. § 15;
U. S. v. Clark, 5 Utah, 226, 14 P. 288. It is an inference
which the court will draw from the proof, which no evi-
dence, however strong, will be permitted to overturn.
Lyon v. Guild, 5 Heisk., Tenn., 175, 182; Best, Pres. § 20.
A disputable presumption, called also an "inconclusive"
or "rebuttable" presumption, is an inference of law which
holds good until it is invalidated by proof or a stronger
presumption. Best, Pres. § 29; Livingston v. Livingston,
4 Johns.Ch., N.Y., 287, 8 Am.Dec. 562.
Mixed. There are also certain mixed presump-
tions, or presumptions of fact recognized by law,
or presumptions of mixed law and fact. These
are certain presumptive inferences, which, from
their strength, importance, or frequent occur-
rence, attract, as it were, the observation of the
law. The presumption of a "lost grant" falls with-
in this class. Best, Ev. 436. See Dickson v. Wil-
kinson, 3 How. 57, 11 L.Ed. 491.
Distinction. The distinctions between presump-
tions of law and presumptions of fact are, first,
that in regard to presumptions of law a certain in-
ference must be made whenever the facts appear
which furnish the basis of the inference; while
in case of other presumptions a discretion more or
less extensive is vested in the tribunal as to draw..
ing the inference. 9 B. & C. 643. Second, in case.
of presumptions of law, the court may draw the
inference whenever the requisite facts are devel-
oped in pleading; Steph. Pl. 382; while other pre-
sumptions can be made only by the intervention
of a jury. Presumptions of law are reduced to
fixed rules, and form a part of the system of juris-
prudence to which they belong; presumptions of
fact are derived wholly and directly from the cir-
cumstances of the particular case, by means of
the common experience of mankind. 2 Stark. Ev.
684; Douglass v. Mitchell's Ex'r, 35 Pa. 440.
It has been suggested as the characteristic distinction
between presumptions of law and presumptions of fact,
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PRESUMPTION
either simple or mixed, that when the former are disre-
garded by a jury, a new trial is granted as matter of right,
but that the disregard of any of the latter, however strong
and obvious, is only ground for a new trial at the discre-
tion of the court; Chamb.Best, Ev. § 327; 1 Term 167;
Turnley v. Black, 44 Ala. 159; Goggans v. Monroe, 31 Ga.
331. A presumption of law is a juridical postulate that a
particular predicate is universally assignable to a particu-
lar subject. A presumption of fact is a logical argument
from a fact to a fact; or, as the distinction is sometimes
put, it is an argument which infers a fact otherwise doubt-
ful from a fact which is proved. 2 Whart.Ev. § 1226;
Smith v. Gardner, 36 Neb. 741, 55 N.W. 245.
Presumptions are divided into prcesumptiones
juris et de jure, otherwise called "irrebuttable
presumptions," (often, but not necessarily, ficti-
tious,) which the law will not suffer to be rebutted
by any counter-evidence; as, that an infant under
seven years is not responsible for his actions;
prcesumptiones juris tantum, which hold good in
the absence of counter-evidence, but against which
counter-evidence may be admitted; and prcesump-
tiones hominis, which are not necessarily conclu-
sive, though no proof to the contrary be adduced.
Mozley & Whiteley.
A natural presumption is that species of pre-
sumption, or process of probable reasoning, which
is exercised by persons of ordinary intelligence,
in inferring one fact from another, without ref-
erence to any technical rules. Otherwise called
"prcesumptio hominis." Burrill, Circ. Ev. 11, 12,
22, 24.
Legitimate presumptions have been denominat-
ed "violent" or "probable," according to the
amount of weight which attaches to them. Such
presumptions as are drawn from inadequate
grounds are termed "light" or "rash" presump-
tions. Brown.
Evidence and Presumptions
Presumptions are evidence or have the effect of
evidence. Brill v. Brill, 38 Cal.App.2d 741, 102 P.
2d 534, 537. Westberg v. Willde, 14 Ca1.2d 360,
94 P.2d 590, 593.
Examples are disputable presumptions. Clary v. Lind-
ley, 30 Cal.App.2d 571, 86 P.2d 920, 921; Equitable Life
Assur. Soc. of United States v. Irelan, •C.C.A.Mont., 123
F.2d 462, 464; legal presumption, Asbury v. Goldberg, 8
Cal.App.2d 70, 47 P.2d 311, 313. Presumption against sui-
cide, Brown v. Metropolitan Life Ins. Co., 233 Iowa 5, 7
N.W.2d 21, 24; presumption arising from doctrine of res
ipsa loquitur, Vonault v. O'Rourke, 97 Mont. 92, 33 P.2d
535, 540; presumption from facts that automobile was
driven by agent acting within scope of employment, Jud-
son v. Bee Hive Auto Service Co., 136 Or. 1, 294 P. 588, 589;
presumption of due execution of will in will contest, In re
Stone's Estate, 59 Cal.App.2d 263, 138 P.2d 710, 713; pre-
sumption of exercise of care for own safety, Eastman v.
Atchison, T. & S. F. Ry. Co., 51 Cal.App.2d 653, 125 P.2d
564, 570; presumption of fairness and regularity of private
transactions, Ross v. Real Estate Inv. Co., 135 Cal. App. 563,
28 P.2d 52, 54.
Presumption of innocence, Williams v. State, 30 Ala.App.
495, 8 So.2d 271, 274; presumption of negligence from driv-
ing on left side of highway, Temple v. De Mirjian, 51 Cal.
App.2d 559, 125 P.2d 544, 546.
Presumption of ownership arising from possession, Lane
v. Whitaker, 50 Cal.App.2d 327, 123 P.2d 53, 55; presump-
tion that insured's wound causing death was not inten-
tionally inflicted, Brown v. Metropolitan Life Ins. Co., 233
Iowa 5, 7 N.W.2d 21, 24; rebuttable presumption, Graybiel
v. Consolidated Ass'ns, Cal.App.2d 20, 60 P.2d 164, 167.
Presumptions are not "evidence". Walters v. Western
& Southern Life Ins. Co., 318 Pa. 382, 178 A. 499, 501; Mc-
Kiver v. Theo. Hamm Brewing Co., 67 S.D. 613, 297 N.W.
445; Equitable Life Assur. Soc. of United States v. Mac-
Donald, C.C.A.Wash., 96 F.2d 437, 439. Examples are pre-
sumption against partial intestacy, Heffenger v. Heffenger,
89 N.H. 530, 3 A.2d 95, 97; presumption against suicide,
Jefferson Standard Life Ins. Co. v. Clemmer, C.C.A.Va., 79
F.2d 724, 730, 103 A.L.R. 171; Reliance Life Ins. Co. v.
Burgess, C.C.A.Mo., 112 F.2d 234, 238; presumption arising
under law, Dunn v. Goldman, 11 N.J.Misc. 833, 168 A. 299,
300; presumption of continuance of condition or status,
State ex rel. Northwestern Development Corporation v.
Gehrz, 230 Wis. 412, 283 N.W. 827, 832; Rupp v. Guardian
Life Ins. Co. of America, Mo.App., 170 S.W.2d 123, 128;
presumption of due care, Morris v. Chicago, M., St. P. & P.
R. Co., 1 Wash.2d 587, 97 P.2d 119, 127; Silvia v. Caizz, 63
R.I. 172, 7 A.2d 704, 707; presumption of fact, American
Alliance Ins. Co. v. Brady Transfer & Storage Co., C.C.A.
Iowa, 101 F.2d 144, 149; presumption of innocence, United
States v. Nimerick, C.C.A.Vt., 118 F.2d 464, 467; British
America Assur. Co. of Toronto, Canada v. Bowen, C.C.A.
Okl., 134 F.2d 256, 259; presumption of negligence of rail-
road, St. Louis-San Francisco Ry. Co. v. Mangum, 199 Ark.
767, 136 S.W.2d 158, 160; Carter v. Kurn, C.C.A.Ark., 127
F.2d 415, 420; presumption of ownership from registration
of motor vehicle, Pioneer Mut. Compensation Co. v. Diaz,
142 Tex. 184, 177 S.W.2d 202, 204; presumption that driver
failed to see automobile because he was not looking, Page
v. Lockley, Tex.Civ.App., 176 S.W.2d 991, 997; presump-
tion that employee was acting in course of employment
arising from evidence of ownership of automobile causing
accident, Frick v. Bickel, 115 Ind.App. 114, 54 N.E.2d 436,
440; presumption that tax assessors in making valuation
have done their duty, People ex rel. Wallington Apart-
ments v. Miller, 288 N.Y. 31, 41 N.E.2d 445, 446; statutory
presumptions, Kelly v. Hudson Coal Co., 119 Pa.Super. 405,
179 A. 753, 754; Allstaedt v. Ochs, 302 Mich. 232, 4 N.W.2d
530, 532.
A presumption is a substitute for evidence, Siler v. Siler,
152 Tenn. 379, 277 S.W. 886, 887; U. S. ex rel. Scharlon v.
Pulver, C.C.A.N.Y., 54 F.2d 261, 263; but is not itself evi-
dence, being rather an aid to legal reasoning applied to
particular subjects; Van Ausdall v. Van Ausdall, 48 R.I.
106, 135 A. 850, 851. It is a rule about the duty of produc-
ing evidence. Duggan v. Bay State St. Ry. Co., 230 Mass.
370, 119 N.E. 757, 760, L.R.A.1918E, 680; 4 Wigm.Ev. §§
2490, 2491, 2511. Presumptions will serve in the place of
"evidence". Bohmont v. Moore, 138 Neb. 784, 295 N.W.
419, 424. While presumptions, in tort actions, that auto-
mobile was in possession of owner at time of accident and
that taxicab was being operated in usual course of cab
company's business, are not "evidence," they serve as evi-
dence in proper case until overcome by competent evidence
to contrary. Van Court v. Lodge Cab Co., 198 Wash. 530,
89 P.2d 206, 211.
PRESUMPTION OF INNOCENCE. Conclusion
drawn by law in favor of one brought to trial on
criminal charge, requiring acquittal unless guilt
is established by sufficient evidence. Blim v. Unit-
ed States, C.C.A.Ill., 68 F.2d 484, 487.
PRESUMPTION OF SURVIVORSHIP. A pre-
sumption of fact, to the effect that one person
survived another, applied for the purpose of de-
termining a question of succession or similar mat-
ter, in a case where the two persons perished in
the same catastrophe, and there are no circum-
stances extant to show which of them actually
died first, except those on which the presumption
is founded, viz., differences of age, sex, strength,
or physical condition.
PRESUMPTIVE. Resting on presumption; cre-
ated by or arising out of presumption; inferred;
assumed; supposed; as, "presumptive" damages,
evidence, heir, notice, or title. See those titles.
PRESUMPTIVE EVIDENCE. This term has sev-eral meanings in law. 1 Wig. Evi. § 25, n. 3.
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PRETEXT
(1) Any evidenee which is not direct and positive; the
proof of minor or other facts incidental to or usually con-
nected with the fact sought to be proved which, when tak-
en together, inferentially establish or prove the fact in
question to a reasonable degree of certainty; evidence
drawn by human experience from the connection of cause
and effect and observation of human conduct; the proof
of facts from which, with more or less certainty, according
to the experience of mankind of their more or less uni-
versal connection, the existence of other facts can be de-
duced. In this sense the term is nearly equivalent to "cir-
cumstantial"' evidence. See 1 Starkie, Ev. 558; 2 Saund.
Pl. & Ev. 673; State v. Kornstett, 62 Kan. 221, 61 P. 805,
808; Ezzard v. U. S., C.C.A.Okl., 7 F.2d 808, 810. Best
says presumptive evidence is as original as direct, and that
presumption of a fact is as good as any other proof when
it is legitimate. Jones v. Granite State Fire Ins. Co., 90
Me. 40, 37 A. 326, 328. "Circumstantial evidence" is some-
times used as synonymous with presumptive evidence, but
not with strict accuracy; for presumptive evidence is not
necessarily and in all cases what is usually understood by
circumstantial evidence. See 1 Stark.Ev. 478; Whart.Ev.
1, 2, 15. The word presumption imports an inference from
facts known, based upon previous experience of the ordi-
nary connection between the two, and, the word itself im-
plies a certain relation between fact and inference. Cir-
cumstances, however, generally but not necessarily lead to
particular inferences; for the facts may be indisputable,
and yet their relation to the principal fact may be only
apparent, not real; and even where the connection is real,
the deduction may be erroneous. Circumstantial and pre-
sumptive evidence differ therefore as genus and species.
Will, Cir.Ev. 17.
(2) Evidence which must be received and treated as true
and sufficient until rebutted by other testimony; as, where
a , statute provides that certain facts shall be presumptive
evidence of guilt, of title, etc. State v. Mitchell, 119 N.C.
784, 25 S.E. 783; State v. Intoxicating Liquors, 80 Me. 57,
12 A. 794.
(3) Also, it means evidence that admits of explanation or
contradiction by other evidence, as distinguished from con-
clusive evidence. Burrill, Circ. Ev. 89. "Presumptive evi-
dence" is synonymous with prima facie evidence. State v.
Simon, 163 Minn. 317,. 203 N.W. 989, 990; Watson v. Rol-
lins, 18 Ala. App. 125, 90 So. 60, 61. See, also, Presump-
tion; Prima Fade Evidence.
PR T. In French law. Loan. A contract by
which one of the parties delivers an article to the
other, to be used by the latter, on condition of his
returning, after having used it, the same article
in nature or an equivalent of the same species and
quality. Duverger.
PRET A INTEAT. Loan at interest. A con-
tract by which one of the parties delivers to the
other a sum of , money, or commodities, or other
movable or fungible things, to receive for their
use a profit determined in favor of the lender.
Duverger.
PRAT A USAGE. Loan to use. A contract by
which one of the parties delivers an article to the
other, to be used by the latter, the borrower agree-
ing to return the specific article after having used.
it. Duverger. A contract identical with the com-
modatum (q. v.) of the civil law.
PRETEND. To feign or simulate; to hold that
out as real which is false or baseless. Brown v.
Perez, Tex.Civ.App., 25 S.W. 983; King v. U. S.,
C.C.A.Fla., 279 F. 103. As to the rule against the
buying and selling of "any pretended right or
title," see Pretensed Right or Title.
PRETENSE. See False Pretenses.
PRETENSED, or PRETENDED, TITLE STAT-
UTE. The English statute 32 Hen. VIII. c. 9, § 2.
It enacts that no one shall sell or purchase any
pretended right or title to land, unless the vendor
has received the profits thereof for one whole
year before such grant, or has been in actual pos-
session of the land, or of the reversion or remaind-
er, on pain that both purchaser and vendor shall
each forfeit the value of such land to the king and
the prosecutor. See 4 Broom & H. Comm. 150.
PRETENSED RIGHT or TITLE. Where one is
in possession of land, and another, who is out of
possession, claims and sues for it. Here the pre-
tensed right or title is said to be in him who so
claims and sues for the same. Mod. Cas. 302.
PRETENSES. Allegations sometimes made in a
bill in chancery for the purpose of negativing an
anticipated defense. Hunt, Eq. pt. I. c. 1.
False pretenses. See that title.
PRETENTION. In French law. The claim made
to a thing which a party believes himself entitled
to demand, but which is not admitted or adjudged
to be his.
The words right, action, and pretention are usually
joined; not that they are synonymous, for'right is some-
thing positive and certain, action is what is demanded,
while pretention is sometimes not even accompanied by a
demand.
PRETER LEGAL. Not agreeable to law; exceed-
ing the limits of law; not legal.
PRETERMIT. To "pretermit" is to pass by, to
omit or to disregard, e. g., failure of testator to
mention his children in his will.
PRETERMITTED HEIR. A child or other de-
scendant omitted by a testator. Where a testa-
tor unintentionally fails to mention in his will,
or make provision for, a child, either living at the
date of the execution of the will or born there-
after, a statute may provide that such child, or
the issue of a deceased child, shall share in the
estate as though the testator had died intestate.
In re Price's Estate, 56 Cal.App.2d 335, 132 P.2d
485.
PRtT DE CONSOMMATION. Loan for consump-
tion. A contract by which one party delivers to
the other a certain quantity of things, such as
are consumed in the use, on the undertaking of
the borrower to return to him an equal quantity
of the same species and quality. Duverger. A
contract identical with the mutuum (q. v.) of the
civil law.
PRRTE—NOM. One who lends his name. Peter-
son v. Moresi, 191 La. 932, 186 So. 737, 739.
PRETEXT. Ostensible reason or motive assigned
or assumed as a color or cover for the real reason
or motive; false appearance, pretense. State v.
Ball, 27 Neb. 604, 43 N.W. 398.
In international law. A reason alleged as jus-
tificatory, but which is so only in appearance, or
which is even absolutely destitute of all founda-
tion. The name of "pretexts" may likewise be ap-
plied to reasons which are in themselves true and
well-founded, but, not being of sufficient import-
ance for undertaking a war, [or other interna-
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PRETIUM
tional act,] are made use of only to cover am-
bitious views. Vatt. Law Nat. bk. 3, c. 3, § 32.
PRETIUM. Lat. Price; cost; value; the price
of an article sold.
PRETIUM AFFECTIONIS. An imaginary value
put upon a thing by the fancy of the owner, and
growing out of his attachment for the specific ar-
ticle, its associations, his sentiment for the donor,
etc. Bell; The H. F. Dimock, C.C.A.Mass., 77 F.
233, 23 C.C.A. 123; Burr v. Bloomsburg, 101 N.J.
Eq. 615, 138 A. 876, 878.
PRETIUM PERICULL The price of the risk, e.
g. the premium paid on a policy of insurance;
also the interest paid on money advanced on bot-
tomry or respondentia.
PRETIUM SEPULCHRI. A mortuary (q. v.).
PRETIUM SUCCEDIT IN LOCUM REI. The
price stands in the place of the thing sold. 1 Bouv.
Inst. no. 939; 2 Bulst, 312.
PRETORIAL COURT. In the colony of Mary-
land, a court for the trial of capital crimes, con-
sisting of the lord proprietor or his lieutenant-
general, and the council. Also called Pretorial.
Murray, New English Dict.
PRETORIUM, In Scotch law. A courthouse, or
hall of justice. 3 How. State Tr. 425.
PREUVE. Fr. "Evidence" in the sense of the
term in English law, and of probatio in the canon
and civil law. The French word evidence, Latin
evidentia, is commonly restricted to the testimony
of the senses. 1 Best, Evid. § 11.
PREVAIL. To be or become effective or effectual,
to be in force, to obtain, to be in general use or
practice, to be commonly accepted or adopted;
to exist. Atlantic Coast Line R. Co. v. Gamble,
155 Fla. 678, 21 So.2d 348, 350.
PREVAILING PARTY. That one of the parties
to a suit who successfully prosecutes the action
or successfully defends against it, prevailing on
the main issue, even though not to the extent of
his original contention. Weston v. Cushing, 45
Vt. 531; Hawkins v. Nowland, 53 Mo. 329; Hug-
gins v. Hill, Mo.Sup., 236 S.W. 1054, 1055.
The one in whose favor the decision or verdict is ren-
dered and judgment entered. United States v. Minneapo-
lis, St. P. & S. S. M. Ry. Co., D.C.Minn., 235 F. 951, 955;
Dunne v. New York Telephone Co., 176 N.Y.S. 519, 520, 107
Misc. 439; O'Hare v. Peacock Dairies, 28 Cal.App.2d 562,
82 P.2d 1112, 1113. The party ultimately prevailing when
the matter is finally set at rest. Comparri v. James Read-
ding, Inc., 121 N.J.L. 591, 3 A.2d 802, 803. The party pre-
vailing in interest, and not necessarily the prevailing per-
son. Gertz v. Milwaukee Electric Ry. & Light Co., 153
Wis. 475, 140 N.W. 312, 316. To be such does not depend
upon the degree of success at different stages of the suit,
but whether, at the end of the suit, or other proceeding,
the party who has made a claim against the other, has suc-
cessfully maintained it. Bangor & P. R. Co. v. Chamber-
lain, 60 Me. 286. Thus, where the court grants defendant
a new trial after verdict for plaintiff, defendant is the
"prevailing party" on that trial, and entitled to costs, al-
though the plaintiff again gets verdict on retrial. Klock
Produce Co. v. Diamond Ice & Storage Co., 98 Wash. 676,
168 P. 476, 478.
PREVAILING PRICES. This term, as used in a
contract for the sale of paper which had no mar-
ket price, as it required special manufacture and
came only from one source, means such prices as
were set by that source in the usual course of
business, without undue enlargement of cost, and
with a reasonable profit in addition. New York
Oversea Co. v. China, Japan & South American
Trading Co., 200 N.Y.S. 449, 451, 206 App.Div. 242.
PREVARICATION. In the civil law. The acting
with unfaithfulness and want of probity; deceit-
ful, crafty, or unfaithful conduct; particularly,
such as is manifested in concealing a crime. Dig.
47, 15, 6.
In English law. A collusion between an inform-
er and a defendant, in order to a feigned prosecu-
tion. Cowell. Any secret abuse committed in a
public office or private commission; willful con-
cealment or misrepresentation of truth, by giving
evasive or equivocating evidence.
PREVENT. To hinder, frustrate, prohibit, im-
pede, or preclude; to obstruct; to intercept. Burr
v. Williams, 20 Ark. 185; Orme v. Atlas Gas and
Oil Co., 217 Minn. 27, 13 N.W.2d 757, 761. To stop
or intercept the approach, access, or performance
of a thing. Webster, Diet.; U. S. v. Souders, 27
Fed.Cas.1,269; Green v. State, 109 Ga. 536, 35 S.
E. 97.
PREVENTION. In the civil law. The right of a
judge to take cognizance of an action over which
he has concurrent jurisdiction with another judge.
In canon law. The right which a superior per-
son or officer has to lay hold of, claim, or transact
an affair prior to an inferior one, to whom other-
wise it more immediately belongs. Wharton.
PREVENTION OF CRIMES ACT. The statute
34 & 35 Vict. c. 112, passed for the purpose of
securing a better supervision over habitual crim-
inals. This act provides that a person who is for
a second time convicted of crime may, on his sec-
ond conviction, be subjected to police supervision
for a period of seven years after the expiration of
the punishment awarded him. Penalties are im-
posed on lodging-house keepers, etc., for harbor-
ing thieves or reputed thieves. There are also
provisions relating to receivers of stolen prop-
erty, and dealers in old metals who purchase the
same in small quantities. This act repeals the
habitual criminals act of 1869, (32 & 33 Vict. c.
99.) Brown.
PREVENTIVE JUSTICE. The system of meas-
ures taken by government with reference to the
direct prevention of crime. It generally consists
in obliging those persons whom there is probable
ground to suspect of future misbehavior to give
full assurance to the public that such offense as
is apprehended shall not happen, by finding pledg-
es or securities to keep the peace, or for their
good behavior. 4 Bl. Comm. 251; 4 Steph. Comm.
290; Bradley v. Malen, 37 N.D. 295, 164 N.W. 24,
25.
PREVENTIVE SERVICE. The name given in
England to the coast-guard, or armed police, form-
ing a part of the customs service, and employed in
the prevention and detection of smuggling.
PREVIOUS. Antecedent; prior. Webster, Dict.
Sometimes limited in meaning to "next prior to"
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PRIMA
or "next preceding." Syracuse Sa y . Bank v.
Brown, 42 N.Y.S.2d 156, 158, 181 Misc. 999.
PREVIOUS INTENTIONS ARE JUDGED BY
SUBSEQUENT ACTS. Dumont V. Smith, 4 Denio
(N.Y.) 319, 320,
PREVIOUS QUESTION. In parliamentary prac-
tice, the question whether a vote shall be taken
on the main issue, or not, brought forward before
the main or real question is put by the speaker
and for the purpose of avoiding, if the vote is in
the negative, the putting of this question. The
motion is in the form "that the question be now
put," and the mover and seconder vote against it.
It is described in Ma y . Parl, Prac, 277.
In the house of representatives of the United States and
in many state legislatures the object of moving the previ-
ous question is to cut off debate and secure immediately a
vote on the question under consideration. Hinds, Prec-
edents in the House of Repr.
PREVIOUSLY. An adverb of time, used in com-
paring an act or state named with another act or
state, subsequent in order of time, for the purpose
of asserting the priority of the first. Lebrecht v.
Wilcoxon, 40 Iowa 94.
PREVISORS, STATUTE OF. A statute of 25
Edw. III. St. 6, for the protection of spiritual pa-
trons against the pope. Maitl. Canon L. 69.
PRICE. Something which one ordinarily accepts
voluntarily in exchange for something else. Herb
v. Hallowell, 304 Pa. 128, 154 A. 582, 584. The
consideration given for the purchase of a thing;
Hibernia Bank & Trust Co. v. McCall Bros. Plant-
ing & Mfg. Co., 140 La. 763, 73 So. 857, 858;—us-
ually in money; Embden State Bank v. Boyle, 50
N.D. 573, 196 N.W. 820, 821.
For "Fair Market Price," see that title.
Sum of money which an article is sold for; but this is
simply because property is generally sold for money, not
because the word has necessarily such a restricted mean-
ing. Among writers on political economy, who use terms
with philosophical accuracy, the word "price" is not al-
ways or even generally used as denoting the moneyed
equivalent of property sold. They generally treat and re-
gard price as the equivalent or compensation, in whatever
form received, for property sold. The Latin word from
which "price" is derived sometimes means "reward,"
"value," "estimation," "equivalent." Hudson Iron Co. v.
Alger, 54 N.Y. 177. Amount which a prospective seller in-
dicates as the sum for which he is willing to sell; market
value. Ara v. Rutland, Tex.Civ.App., 172 S.W. 993, 994.
The term may be synonymous with cost, Williams v. Hy-
bskmann, 311 Mo. 332, 278 S.W. 377, 379; and with value,
Southeastern Express Co. v. Nightingale, 33 Ga.App. 515,
126 S.E. 915, as well as with consideration, though price is
not always identical either with consideration, Oregon
Home Builders v. Crowley, 87 Or. 517, 170 P. 718, 721; or
with value, Chicago, K. & W. R. Co. v. Parsons, 51 Kan.
408, 32 P. 1083.
"Price" within ceiling price regulations of the Office of
Price Administration is the amount paid by the purchaser.
Boyles v. Stapleton, D.C.Colo., 53 F.Supp. 336, 340.
PRICE CURRENT. A list or enumeration of var-
ious articles of merchandise, with their prices,
the duties, if any, payable thereon, when imported
or exported, with the drawbacks occasionally al-
lowed upon their exportation, etc. Wharton.
PRICE DISCRIMINATION. Within anti-trust
laws selling to one at a price and refusing to sell
to another at any price by one engaged in inter-
state commerce, in absence of reason for refusal
to sell. Sherman Anti-Trust Act, 15 U.S.C.A. § 1
et seq.; Shaw's v. Wilson-Jones Co., D.C.Pa., 26 F.
Supp, 713, 714,
PRICE EXPECTANCY. In the moving picture
industry, the minimum receipts which distribu-
tors expect to realize from the exhibition of pic-
tures;—used interchangeably with "minimum
sale" and "exhibition value." Export & Import
Film Co. v. B. P. Schulberg Productions, 125 Misc,
756, 211 N.Y.S. 838, 839.
PRICKING FOR SHERIFFS. In England, when
the yearly list of persons nominated for the office
of sheriff is submitted to the sovereign, he takes a
pin, and to insure impartiality, as it is said, lets
the point of it fall upon one of the three names
nominated for each county, etc., and the person
upon whose name it chances to fall is sheriff for
the ensuing year. This is called "pricking for
sheriffs." Atk. Sher. 18.
PRICKING NOTE. Where goods intended to be
exported are put direct from the station of the
warehouse into a ship alongside, the exporter fills
up a document to authorize the receiving the
goods on board. This document is called a "prick-
ing note," from a practice of pricking holes in the
paper corresponding with the number of pack-
ages counted into the ship. Hamel, Cust. 181.
PRIDE GAVEL. A rent or tribute. Tayl. Gav-
elk. 112.
PRIEST. A minister of a church. A person in
the second order of the ministry, as distinguished
from bishops and deacons.
A pastor is a permanent official of a parish, and more
than a priest, who holds a position of spiritual power with-
out reference to locality. Dupont v. Pettelier, 120 Me. 114,
113 A. 11, 13.
PRIMA_FACIE, Lat. At first sight; on the first
appearance; on the face of it; so far as can be
judged from the first disclosure; presumably;
a fact presumed to be true unless disproved by
some evidence to the contrary. State ex rel. Her-
bert v. Whims, 68 Ohio App. 39, 38 N.E.2d 596,
599.
PRIMA FACIE CASE. Such as will suffice until
contradicted and overcome by other evidence. Pa-
cific Telephone & Telegraph Co. v. Wallace, 158
Or. 210, 75 P.2d 942, 947. A case which has pro-
ceeded upon sufficient proof to that stage where
it will support finding if evidence to contrary is
disregarded. In re Hoagland's Estate, 126 Neb.
377, 253 N.W. 416.
A litigating party is said to have a prima facie case
when the evidence in his favor is sufficiently strong for his
opponent to be called on to answer it. A prima facie case,
then, is one which is established by sufficient evidence, and
can be overthrown only by rebutting evidence adduced on
the other side. In some cases the only question to be con-
sidered is whether there is a prima facie case or no. Thus
a grand jury are bound to find a true bill of indictment, if
the evidence before them creates a prima facie case against
the accused; and for this purpose, therefore, it is not nec-
essary for them to hear the evidence for the defense. Moz-
ley & Whitley. And see State v. Hardelein, 169 Mo. 579,
70 S.W. 130; State v. Lawlor, 28 Minn. 216, 9 N.W. 698.
PRIMA FACIE EVIDENCE. Evidence good and
sufficient on its face; such evidence as, in the
judgment of the law, is sufficient to establish a
given fact, or the group or chain of facts constitut-
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PRIMA
ing the party's claim or defense, and which if not
rebutted or contradicted, will remain sufficient.
State v. Burlingame, 146 Mo. 207, 48 S.W. 72.
Evidence which suffices for the proof of a particular fact
until contradicted and overcome by other evidence. Dod-
son v. Watson, 110 Tex. 355, 220 S.W. 771, 772, 11 A.L.R.
583. Evidence which, standing alone and unexplained,
would maintain the proposition and warrant the conclu-
sion to support which it is introduced. Gilmore v. Modern
Brotherhood of America, 186 Mo.App. 445, 171 S.W. 629,
632. An inference or presumption of law, affirmative or
negative of a fact, in the absence of proof, or until proof
can be obtained or produced to overcome the inference.
People v. Thacher, 1 Thomp. & C., N.Y., 167. A litigating
party is said to have a prima facie case when the evidence
in his favor is sufficiently strong for his opponent to be
called on to answer it. A prima facie case, then, is one
which is established by sufficient evidence, and can be
overthrown only by rebutting evidence adduced on the
other side. Mozley & Whitley. State v. Lawlor, 28 Minn.
216, 9 N.W. 698. A "prima facie case" is one which is
apparently established by evidence adduced by plaintiff in
support of his case up to the time such evidence stands
unexplained and uncontradicted. Morrison v. Flowers, 308
Ill. 189, 139 N.E. 10, 12. A "prima facie case" is one in
which the evidence in favor of a proposition is sufficient to
support a finding in its favor, if all of the evidence to the
contrary be disregarded. Schallert v. Boggs, Tex.Civ.App.,
204 S.W. 1061, 1062. See, also, Presumptive Evidence.
PRIMA PARS ZEQUITATIS )EQUALITAS. The
radical element of equity is equality.
PRIMA TONSURA. The first mowing; a grant
of a right to have the first crop of grass. 1 Chit.
Pr. 181.
PRIMIE IMPRESSIONIS. A case primce impres-
sionis (of the first impression) is a case of a new
kind, to which no established principle of law or
precedent directly applies, and which must be de-
cided entirely by reason as distinguished from au-
thority.
PRIME PRECES. Lat. In the civil law. An im-
perial prerogative by which the emperor exercised
the right of naming to the first prebend that be-
came vacant after his accession, in every church
of the empire. 1 Bl. Comm. 381.
PRIMAGE. In mercantile law. Formerly, a
small allowance or compensation payable to the
master and mariners of a ship or vessel; to the
former for the use of his cables and ropes to dis-
charge the goods of the merchant; to the latter
for lading and unlading in any port or haven.
Abb. Shipp. 404; Peters v. Speights, 4 Md. Ch.
381; Blake v. Morgan, 3 Mart. 0. S. (La.) 381.
It is sometimes called the master's hat-money.
It is no longer, however, a gratuity to the master, unless
especially stipulated; but it belongs to the owners or
freighters, and is nothing but an increase of the freight
rate. Carr v. Austin & N. W. R. Co., C.C.Tex., 14 F. 419.
PRIMARIA ECCLESIA. The mother church. 1
Steph. Comm. (7th Ed.) 118.
PRIMARY. First; principal; chief; leading.
First in order of time, or development, or in in-
tention. State v. Erickson, 44 S.D. 63, 182 N.W.
315, 316, 13 A.L.R. 1189.
As to primary "Conveyance," "Election," "Obli-
gation," and "Vein," see those titles.
PRIMARY ALLEGATION. The opening pleading
in a suit in the ecclesiastical court. It is also
called a "primary plea."
PRIMARY DISPOSAL OF THE SOIL. In acts
of congress admitting territories as states, and
providing that no laws shall be passed interfering
with the primary disposal of the soil, this means
the disposal of it by the United States govern-
ment when it parts with its title to private per-
sons or corporations acquiring the right to a pat-
ent or deed in accordance with law. See Oury v.
Goodwin, 3 Ariz. 255, 26 P. 377; Topeka Commer-
cial Security Co. v. McPherson, 7 Okl. 332, 54 P.
489.
PRIMARY EVIDENCE. That kind of evidence
which, under every possible circumstance, affords
the greatest certainty of the fact in question.
Thus, a written instrument is itself the best possi-
ble evidence of its existence and contents.
Primary evidence means original or first-hand evidence;
the best evidence that the nature of the case admits of ;
the evidence which is required in the first instance, and
which must fail before secondary evidence can be admitted.
That evidence which the nature of the case or question sug-
gests as the proper means of ascertaining the truth. See
Cross v. Baskett, 17 Or. 84, 21 P. 47; Scott v. State, 3 Tex.
App. 103, 104. It is the particular means of proof which
is the most natural and satisfactory of which the case
admits, and includes the best evidence which is available
to a party and procurable under the existing situation, and
all evidence falling short of such standard, and which in
its nature suggests there is better evidence of the same
fact, is "secondary evidence." Best v. Equitable Life
Assur. Soc., Mo.App., 299 S.W. 118, 120. See, also, Best
Evidence.
PRIMARY POWERS. The principal authority
given by a principal to his agent. It differs from
"mediate powers." Story, Ag. § 58.
PRIMARY PURPOSE. That which is first in in-
tention; which is fundamental. State v. Erick-
son, 44 S.D. 63, 182 N.W. 315, 317, 13 A.L.R. 1189.
The principal or fixed intention with which an act
or course of conduct is undertaken. Carlson v.
Carpenter Contractors' Ass'n, 224 Ill.App. 430,
447.
PRIMATE. A chief ecclesiastic; an archbishop
who has jurisdiction over his province, or one of
several metropolitans presiding over others. Ex-
arch comes nearest to it in the Greek church.
Thus the archbishop of Canterbury is styled "Pri-
mate of all England;" the archbishop of York is
"Primate of England." Wharton.
PRIME, n. In French law. The price of the risk
assumed by an insurer; premium of insurance.
Emerig. Traite des Assur. c. 3, § 1, nn. 1, 2.
PRIME, v. To stand first or paramount; to take
precedence or priority of; to outrank; as, in the
sentence "taxes prime all other liens."
PRIME COST. The true price paid for goods up-
on a bona fide purchase. U. S. v. Sixteen Pack-
ages, 2 Mas. 53, Fed.Cas.No.16,303.
PRIME MINISTER. The responsible head of a
ministry or executive government, especially of a
monarchical government. Webster, Dict. In Eng-
land, he is the head of the cabinet, and usually
holds the office of First Lord of the Treasury. The
office was unknown to the law until 1906, when
the prime minister was accorded a place in the
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PRINCIPAL
order of precedence. Lowell, Gov. of Engl. 68.
"He is the principal executive of the British con-
stitution, and the sovereign a cog in the mechan-
ism." Bagehot.
PRIME SERJEANT. In English law. The king's
first serjeant at law.
PRIMER. A law French word, signifying first;
primary.
PRIMER ELECTION. A term used to signify
first choice; e. g., the right of the eldest co-par-
cener to first choose a purpart.
PRIMER FINE. On suing out the writ or prce-
cipe called a "writ of covenant," there was due
to the crown, by ancient prerogative, a primer
fine, or a noble for every five marks of land sued
for. That was one-tenth of the annual value. 1
Steph. Comm. (7th Ed.) 560.
PRIMER SEISIN. See Seisin.
PRIMICERIUS. In old English law. The first
of any degree of men. 1 Mon. Angl. 838.
PRIMITI1E. In English law. First fruits; the
first year's whole profits of a spiritual preferment.
1 Bl. Comm. 284.
PRIMITIVE OBLIGATION. See Obligation.
PRIMO BENEFICIO. Lat. A writ directing a
grant of the first benefice in the sovereign's gift.
Cowell.
PRIMO EXECUTIENDA EST VERBI VIS, NE
SERMONIS VITIO OBSTRUATUR ORATIO,
SIVE LEX SINE ARGUMENTIS. Co. Litt. 68.
The full meaning of a word should be ascertained
at the outset, in order that the sense may not be
lost by defect of expression, and that the law be
not without reasons [or arguments].
PRIMO VENIENTI. Lat. To the one first com-
ing. An executor anciently paid debts as they
were presented, whether the assets were sufficient
to meet all debts or not. Stim. Law Gloss.
PRIMOGENITURE. The state of being the first-
born among several children of the same parents;
seniority by birth in the same family. The super-
ior or exclusive right possessed by the eldest son,
and particularly, his right to succeed to the estate
of his ancestor, in right of his seniority by birth,
to the exclusion of younger sons.
PRIMOGENITUS. Lat. In old English law. A
first-born or eldest son. Bract. fol. 33; 1 Ves.
290; 3 Maule & S. 25; 8 Taunt. 468.
PRIMUM DECRETUM. Lat. In the canon law.
The first decree; a preliminary decree granted on
the non-appearance of a defendant, by which the
plaintiff was put in possession of his goods, or
of the thing itself which was demanded. Gilb.
Forum Rom. 32, 33. In the courts of admiralty,
this name is given to a provisional decree. Bacon,
Abr. The Court of Admiralty (E).
PRINCE. In a general sense, a sovereign; the
ruler of a nation or state. More particularly, the
son of a king or emperor, or the issue of a royal
family; as princes of the blood. The chief of any
body of men. Webster; The Lucy H., D.C.Fla.,
235 F. 610, 612.
Prince of Wales. A title given to the eldest son
of the British sovereign or to the heir apparent to
the crown. He is so created by letters patent,
and is also created Earl of Chester. He is Duke
of Cornwall by inheritance. Mary and Elizabeth,
though each, at the time, was only heiress pre-
sumptive, were created Princesses of Wales by
Henry VIII.
Princes and princesses of the royal blood. In
English law. The younger sons and daughters of
the sovereign, and other branches of the royal
family who are not in the immediate line of suc-
cession.
PRINCEPS. Lat. In the civil law. The prince;
the emperor.
PRINCEPS ET RESPUBLICA EX JUSTA
CAUSA POSSUNT REM MEAM AUFERRE.
12 Coke, 13. The prince and the commonwealth,
for a just cause, can take away my property.
PRINCEPS LEGIBUS SOLUTUS EST. The em-
peror is released from the laws; is not bound by
the laws. Dig. 1, 3, 31; Halifax, Anal. pre y . vi,
vii, note.
PRINCEPS MAVULT DOMESTICOS MILITES
QUAM STIPENDIARIOS BELLICIS OPPON-
ERE CASIBUS. Co. Litt. 69. A prince, in the
chances of war, had better employ domestic than
stipendiary troops.
PRINCESS ROYAL. In English law. The eldest
daughter of the sovereign. 3 Steph. Comm. 450.
PRINCIPAL, adj. Chief; leading; most import-
ant or considerable; primary; original. Highest
in rank, authority, character, importance, or de-
gree. Bland v. Board of Trustees of Galt Joint
Union High School Dist., 67 Cal.App. 784, 228 P.
395, 397.
As to principal "Challenge," "Contract," "Obli-
gation," "Office," and "Vein," see those titles.
Principal establishment. In the law concerning
domicile, the principal domestic establishment.
Mosely v. Dabezies, 142 La. 256, 76 So. 705, 706.
Principal fact. In the law of evidence. A fact
sought and proposed to be proved by evidence of
other facts (termed "evidentiary facts") from
which it is to be deduced by inference. A fact
which is the principal and ultimate object of an
inquiry, and respecting the existence of which a
definite belief is required to be formed. 3 Benth.
Jud. Ev. 3; Burrill, Circ. Ev. 3, 119.
PRINCIPAL, n. The source of authority or right.
A superintendent, as of a school district. Wil-
liams v. School Dist. No. 189, 104 Wash. 659, 177
P. 635, 636. The capital sum of a debt or obliga-
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PRINCIPAL
tion, as distinguished from Interest or other ad-
ditions to it. Christian v. Superior Court, 122
Cal. 117, 54 P. 518. The corpus or capital of an
estate in contradistinction to the income; "in-
come" being merely the fruit of capital. Carter
v. Rector, 88 Old. 12, 210 P. 1035, 1037.
Criminal Law
A chief actor or perpetrator, or an alder and
abettor actually or constructively present at the
commission of the crime, as distinguished from
an "accessory." At common law, a principal in
the first degree is he that is the actor or absolute
perpetrator of the crime; and, in the second de-
gree, he who is present, aiding and abetting the
fact to be done. 4 Bl. Comm. 34. Cooney v. Burke,
11 Neb. 258, 9 N.W. 57.
Neither a principal in the first degree nor one in the
second degree need be actually present when the offense is
consummated, Smith v. State, 21 Tex.App. 107, 17 S.W.
552; State v. Morey, 126 Me. 323, 138 A. 474, 475; for the
presence of a principal in the second degree may be mere-
ly constructive; e. g., where he stays outside and keeps
watch or guard, Pierce v. State, 130 Tenn. 24, 168 S.W.
851, 855, Ann.Cas.1916B, 137. In misdemeanors, anyone
participating is a principal, Boggs v. Commonwealth, 218
Ky. 782, 292 S.W. 324, 325.
All persons acting together in, commission of offense, and
persons advising or agreeing to commission thereof and
present when committed, though not aiding therein, are
principals. Stringfellow v. State, 111 Tex.Cr.R. 504, 14
S.W.2d 1031, 1032. A criminal offender is either a prin-
cipal or an accessory. A principal is either the actor (i. e.,
the actual perpetrator of the crime) or else is present,
aiding and abetting, the fact to be done; an accessory is
he who is not the chief actor in the offense, nor yet present
at its performance, but is some way concerned therein,
either before or after the fact committed. 1 Hale, P.C.
613, 618; People v. Ah Gee, 37 Cal.App. 1, 174 P. 371, 372.
All persons concerned in the commission of crime, whether
it be felony or misdemeanor, and whether they directly
commit the act constituting the offense, or aid and abet
in its commission, though not present, are principals.
State v. Curtis, 30 Idaho 537, 165 P. 999, 1000. Some of
these statutes, and other similar ones, expressly abrogate
the common-law distinction between a principal and an
accessory before the fact. People v. Wood, 56 Cal.App.
431, 205 P. 698. All persons are principals who are guilty
of acting together in the commission of an offense. Ver-
non's Ann.P.C. art. 66. A principal is one who advises or
agrees to the commission of an offense, and is present
when it is done. Vernon's Ann.P.C. art. 69. See Pizana v.
State, 81 Tex.Cr.R. 81, 193 S.W. 671, 673; Middleton v.
State, 86 Tex.Cr.R. 307, 217 S.W. 1046, 1052. "Accomplice,"
by virtue of statute in Vernon's Ann.P.C. art. 70, means
one who is not present at the commission of the offense,
Serrato v. State, 74 Tex.Cr.R. 413, 171 S.W. 1133, 1144, and
is practically synonymous with the common-law accessory
before the fact. McKeen v. State, 7 Tex.Cr.R. 631; Strong
v. State, 52 Tex.Cr.R. 13.3, 105 S.W. 785. But the ordinary
meaning of "accomplice" includes all the particeps crim-
inis, whether principals in the first or second degree or
mere accessories. It means one who at common law might
have been convicted either as principal or accessory before
the fact. People v. Crossman, 241 N.Y. 138, 149 N.E. 330,
331.
Law of Agency
The employer or constitutor of an agent; the
person who gives authority to an agent or at-
torney to do some act for him. Adams v. Whit-
tlesey, 3 Conn. 567. Called also constituent or
chief. Mech. Agency § 3. One, who, being com-
petent sui juris to do any act for his own benefit
or on his own account, confides it to another per-
son to do for him. 1 Domat, b. 1, tit. 15.
Law of Guaranty and Suretyship
The person primarily liable, for whose perform-
ance of his obligation the guarantor or surety has
become bound. See Rollings v. Gunter, 211 Ala.
671, 101 So. 446, 448.
Old English Law
An heir-loom, mortuary, or corse-present.
Wharton.
Property Law
A term used as the correlative of "accessory"
or "incident" to denote the more important or
valuable subject, with which others are connected
in a relation of dependence or subservience, or
to which they are incident or appurtenant. Thus,
it is said that the incident shall pass by the grant
of the principal; but not the principal by the grant
of the incident. Co. Litt. 152a.
General
Principal of the house. In, English law. The
chief person in some of the inns of chancery.
Undisclosed principal. One not disclosed in the
contract. Unruh v. Roemer, 135 Minn. 127, 160
N.W. 251, 252.
Vice principal. In the law of master and serv-
ant, this term means one to whom the employer
has confided the entire charge of the business or
of a distinct branch of it, giving him authority to
superintend, direct, and control the workmen and
make them obey his orders, the master himself
exercising no particular oversight and giving no
particular orders, or one to whom the master has
delegated a duty of his own, which is a direct,
personal, and absolute obligation. Durkin v.
Kingston Coal Co., 171 Pa. 193, 33 A. 237, 29 L.R.
A. 808, 50 Am.St.Rep. 801.
The term "vice principal," as used in the fellow-servant
law, includes any servant who represents the master in
the discharge of those personal or absolute duties which
every master owes to his servants; such duties being often
referred to as the nonassignable duties of the master,
among which are, providing suitable machinery and ap-
pliances, a safe place to work, the proper inspection and
repair of premises and appliances, the selection and re-
tention of suitable servants, the establishment of proper
rules and regulations, and the instruction of servants as
to the kind and manner of work to be done by them. In-
ternational Cotton Mills v. Webb, 22 Ga.App. 309, 96 S.E.
16; Wolverine Oil Co. v. Kingsbury, 66 Okl. 271, 168 P.
1021, 1022. To make a servant a vice principal, it is only
necessary that he have authority to direct and supervise
the work and to hire and discharge subordinate servants
engaged in the work. Modern Order of Praetorians v. Nel-
son, Tex.Civ.App., 162 S.W. 17, 18; Daggett v. American
Car & Foundry Co., Mo.App., 284 S.W. 855, 856. However,
a servant may be a vice principal, though he has no power
to employ and discharge men under him. Wilson v. Coun-
sell, 182 Ill.App. 79, 84.
PRINCIPALIS. Lat. Principal; a principal
debtor; a principal in a crime.
PRINCIPALIS DEBET SEMPER EXCUTI AN.TEQUAM PERVENIATUR AD FIDEIJUSSORES.
The principal should always be exhausted before
coming upon the sureties. 2 Inst. 19.
PRINCIPIA DATA SEQUUNTUR CONCOMI.
TANTIA. Given principles are followed by their
concomitants.
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PRIORITY
PRINCIPIA PROBANT, NON PROBANTUR.
Principles prove; they are not proved. Funda-
mental principles require no proof; or, in Lord
Coke's words, "they ought to be approved, be-
cause they cannot be proved." 3 Coke, 50a.
PRINCIPIIS OBSTA. Withstand beginnings;
oppose a thing in its early stages, if you would
do so with success. Branch, Princ.
PRINCIPIORUM NON EST RATIO. There is no
reasoning of principles; no argument is required
to prove fundamental rules. 2 Bulst. 239.
PRINCIPIUM EST POTISSIMA PARS CUJUS-
QUE REI. 10 Coke, 49. The principle of any-
thing is its most powerful part.
PRINCIPLE. A fundamental truth or doctrine, as
of law; a comprehensive rule or doctrine which
furnishes a basis or origin for others; a settled
rule of action, procedure, or legal determination.
A truth or proposition so clear that it cannot be
proved or contradicted unless by a proposition
which is still clearer. That which constitutes the
essence of a body or its constituent parts. 8 Term
107. That which pertains to the theoretical part
of a science. Hemler v. Richland Parish School
Board, 142 La. 133, 76 So. 585, 587.
In patent law. The principle of a machine is
the particular means of producing a given result
by a mechanical contrivance. Parker v. Stiles,
5 McLean 44, 63, Fed.Cas.No.10,749. It is the
modus operandi, or that which applies, modifies,
or combines mechanical powers to produce a cer-
tain result; and, so far, a principle, if new in its
application to a useful purpose, may be patent-
able. Barrett v. Hall, 1 Mason, 470, Fed.Cas.No.
1,047. The word "principles," as applied to in-
ventions, designate those elements which in com-
bination compose the claims. Schweyer Electric
& Mfg. Co. v. Regan Safety Devices Co., C.C.A.
N.Y., 4 F.2d 970, 973.
PRINT, n. A term which includes most of the
forms of figures or characters or representations,
colored or uncolored, that may be impressed on a
yielding surface. U. S. v. Harman, D.C.Kan., 38
F. 827, 829.
PRINT, v. To stamp by direct pressure as from
the face of types, plates, or blocks covered with
ink or pigments, or to impress with transferred
characters or delineations by the exercise of force
as with a press or other mechanical agency. Acme
Coal Co. v. Northrup Nat. Bank of Iola, Kan., 23
Wyo. 66, 146 P. 593, L.R.A. 1915D, 1084.
The term properly refers to the mechanical work of
production, whereas "publish" pertains to the issuance
from the place where printed. In re Monrovia Evening
Post, 199 Cal. 263, 248 P. 1017, 1018; In re McDonald, 187
Cal. 158, 201 P. 110, 111. But a finding that a newspaper
is "published" in a certain county may be deemed suffi-
cient to show that it was "printed" in such county. Mc-
Cormick v. Higgins, 190 Ill.App. 241, 261. Similarly, a
requirement that matter be "printed" in a particular coun-
ty may be construed as a direction that it be "published"
there. In re Publication of Docket of Supreme Court, Mo.
Sup., 232 S.W. 454, 455.
PRINTING. The impress of letters or characters
upon paper, or upon other substance;—implying
a mechanical act. Daly v. Beery, 178 N.W. 104,
106, 45 N.D. 287. The art of impressing letters;
the art of making books or papers by impressing
legible characters. Arthur v. Moller, 97 U.S. 365,
24 L.Ed. 1046; Le Roy v. Jamison, 15 Fed.Cas.
373; Forbes Lithograph Mfg. Co. v. Worthington,
C.C.Mass., 25 F. 899, 900.
The term may include typewriting. Sunday v. Hagen.-
buch, 18 Pa.Co.Ct. 540, 541. Compare State v. Oakland,
69 Kan. 784, 77 P. 696. It may also include mimeograph-
ing within the meaning of the copyright statutes. Mac-
millan Co. v. King, D.C.Mass., 223 F. 862, 867.
Printing paper. This term does not necessarily
include news print paper. Davis v. Age-Herald
Pub. Co., C.C.A.Ala., 293 F. 591, 593 (taritr of an
interstate carrier).
Public printing. Such as is directly ordered by
the legislature, or performed by the agents of the
government authorized to procure it to be done.
Ellis v. State, 4 Ind. 1.
PRIOR. Lat. The former; earlier; preceding;
preferable or preferred.
Prior petens. The person first applying.
PRIOR, n. The chief of a convent; next in dig-
nity to an abbot.
PRIOR, adj. Earlier; elder; preceding; superior
in rank, right, or time; as, a prior lien, mortgage,
or judgment. See Fidelity Insurance, Trust &
Safe Deposit Co. v. Roanoke Iron Co., C.C.Va.,
81 F. 439, 447.
Prior creditor. Generally, the creditor who is
accorded priority in payment from the assets of
his debtor. Richey v. Ferguson, 93 Kan. 152, 143
P. 497.
PRIOR LIEN. This term commonly denotes a
first or superior lien, and not one necessarily ante-
cedent in time. Titus v. United States Smelting,
Refining & Mining Exploration Co., D.C.N.Y., 231
F. 205, 210.
PRIOR TEMPORE POTIOR JURE. He who is
first in time is preferred in right. Co. Litt. 14a;
Broom, Max. 354, 358; 2 P. Wms. 491; 1 Term
733; 9 Wheat. 24, 6 L.Ed. 23; 15 A. (Pa.) 730.
PRIORI PETENTI. To the person first apply-
ing. In probate practice, where there are several
persons equally entitled to a grant of administra-
tion, (e. g., next of kin of the same degree,) the
rule of the court is to make the grant priori pe-
tenti, to the first applicant. Browne, Prob. Pr.
174; Coote, Prob. Pr. 173, 180.
PRIORITY. Precedence; going before. A legal
preference or precedence. When two persons
have similar rights in respect of the same subject-
matter, but one is entitled to exercise his right to
the exclusion of the other, he is said to have prior-
ity.
In old English law. An antiquity of tenure, in
comparison with one not so ancient. Cowell.
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PRISAGE
PRISAGE. An ancient hereditary revenue of the
crown, consisting in the right to take a certain
quantity from cargoes of wine imported into Eng-
land. In Edward I.'s reign it was converted into
a pecuniary duty called "butlerage." 2 Steph.
Comm. 561.
PRISE, Fr. In French law. Prize; captured
property. Ord. Mar. liv. 3, tit. 9. Dole v. Insur-
ance Co., 6 Allen (Mass.) 373.
PRISEL EN AUTER LIEU. L. Fr. A taking
in another place. A plea in abatement in the ac-
tion of replevin. 2 Ld. Raym. 1016, 1017.
PRISON. A public building or other place for
the confinement or safe custody of persons, wheth-
er as a punishment imposed by the law or other-
wise in the course of the administration of justice.
Sturtevant v. Com., 158 Mass. 598, 33 N.E. 648;
Copeland v. Commonwealth, 214 Ky. 209, 282 S.W.
1077.
The words "prison" and "penitentiary" are used synony-
mously to designate institutions for the imprisonment of
persons convicted of the more serious crimes, as distin-
guished from reformatories and county or city jails. State
v. Delmonto, 110 Conn. 298, 147 A. 825, 826.
Originally it was distinguished from jail, which was a
place for confinement, not for punishment, and the popular
modern tendency is to use the term in contradistinction to
jail, to denote particularly a state penitentiary. Copeland
v. Commonwealth, 282 S.W. 1077,. 214 Ky. 209. But the
term may also properly apply to a county jail. State v.
Killian, 173 N.C. 792, 92 S.E. 499, 501.
As used in a statute pertaining to escapes, the word may
include territory outside a state prison, where an inmate,
when at work outside, is under the surveillance of prison
guards. People v. Vanderburg, 67 Cal.App. 217, 227 P. 621.
PRISON BOUNDS. The limits of the territory
surrounding a prison, within which an impris-
oned debtor, who is out on bonds, may go at will.
See Gaol.
PRISON BREAKING, or BREACH. The com-
mon-law offense of one who, being lawfully in
custody, escapes from the place where he is con-
fined, by the employment of force and violence.
This offense is to be distinguished from "rescue,"
(q. v.,) which is a deliverance of a prisoner from
lawful custody by a third person. 2 Bish. Crim.
Law, § 1065.
PRISONAM FRANGENTIBUS, STATUTE DE.
The English statute 1 Edw. II. St. 2, (in Rev. St.
23 Edw. I.,) whereby it is felony for a felon to
break prison, but misdemeanor only for a misde-
meanant to do so. 1 Hale, P. C. 612.
PRISONER. One who is deprived of his liberty;
one who is against his will kept in confinement or
custody. U. S. v. Curran, C.C.A.N.Y., 297 F. 946,
950. A person restrained of his liberty upon any
action, civil or criminal, or upon commandment.
Cowell.
A person on trial for crime. "The prisoner at the bar."
The jurors are told to "look upon the prisoner." The
court, after passing sentence, gives order: . to "remove the
prisoner." Hairston v. Corn., 97 Va. 754, 32 S.E. 797.
PRISONER AT THE BAR. An accused person,
while on trial before the court, is so called. One
accused of crime, who is actually on trial, is in
legal effect a "prisoner at the bar," notwithstand-
ing he has given bond for his appearance at the
trial. He is a "prisoner" if held in custody either
under bond or other process of law, or when phys-
ically held under arrest, and when actually on
trial he is a "prisoner at the bar." The term is
as applicable to one on trial for a misdemeanor as
for a felony. Allen v. State, 18 Ga.App. 1, 88 S.E.
100.
PRISONER OF WAR. One who has been cap-
tured in war while fighting in the army of the
public enemy.
PRIST. L. Fr. Ready. In the old forms of oral
pleading, this term expressed a tender or joinder
of issue.
PRIUS VITIIS LABORAVIMUS, NUNC LEGI-
BUS. 4 Inst. 76. We labored first with vices, now
with laws.
PRIVACY, RIGHT OF. The right to be let alone,
the right of a person to be free from unwarranted
publicity. Holloman v. Life Ins. Co. of Virginia,
192 S.C. 454, 7 S.E.2d 169, 171, 127 A.L.R. 110. The
right of an individual (or corporation) to with-
hold himself and his property from public scrut-
iny, if he so chooses. It is said to exist only so
far as its assertion is consistent with law or pub-
lic policy, and in a proper case equity will inter-
fere, if there is no remedy at law, to prevent an
injury threatened by the invasion of, or infringe-
ment upon, this right from motives of curiosity,
gain, or malice. Federal Trade Commission v.
American Tobacco Co., 44 S.Ct. 336, 264 U.S. 298,
68 L.Ed. 696, 32 A.L.R. 786.
PRIVATE. Affecting or belonging to private in-
dividuals, as distinct from the public generally.
Not official; not clothed with office. People v.
Powell, 280 Mich. 699, 274 N.W. 372, 373, 111 A.L.
R. 721.
As to private "Act," "Agent," "Bill," "Bounda-
ry," "Bridge," "Business," "Carrier," "Chapel,"
"Corporation," "Detective," "Dwelling House,"
"Easement," "Examination," "Ferry," "Nuisance,"
"Pond," "Property," "Prosecutor," "Rights,"
"Road," "Sale," "School," "Seal," "Statute,'
"Stream," "Trust," "Water," "War," "Way,"
`Wharf," and "Wrongs," see those titles.
PRIVATE BILL OFFICE. An office of the British
parliament where the business of securing private
acts of parliament is conducted.
PRIVATE EXAMINATION. An examination or-
interrogation, by a magistrate, of a married wo-
man who is grantor in a deed or other conveyance,
held out of the presence of her husband, for the
purpose of ascertaining whether her will in the
matter is free and unconstrained. Hadley v.
Geiger, 9 N.J.L. 233.
PRIVATE INTERNATIONAL LAW. A name
used by some writers to indicate that branch of
the law which is now more commonly called "Con-
flict of Laws" (q. v.).
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PRIVILEGE
PRIVATE LAW. As used in contradistinction to
public law, the term means all that part of the
law which is administered between citizen and
citizen, or which is concerned with the definition,
regulation, and enforcement of rights in cases
where both the person in whom the right inheres
and the person upon whom the obligation is inci-
dent are private individuals. See Public Law.
PRIVATE PERSON. An individual who is not
the incumbent of an office.
PRIVATE STREET. Literally speaking, this is
an impossibility, for no way can be both private
and a street. It may be one or the other, but not
both. Greil v. Stollenwerck, 201 Ala. 303, 78 So.
79, 82.
PRIVATEER. A vessel owned, equipped, and
armed by one or more private individuals, and
duly commissioned by a belligerent power to go
on cruises and make war upon the enemy, usually
by preying on his commerce. A private vessel
commissioned by the state by the issue of a letter
of marque to its owner to carry on all hostilities
by sea, presumably according to the laws of war.
Formerly a 'state issued letters of marque to its
own subjects, and to those of neutral states as
well, but a privateersman who accepted letters of
marque from both belligerents was regarded as
a pirate. By the Declaration of Paris (April,
1856), privateering was abolished, but the United
States, Spain, Mexico, and Venezuela did not ac-
cede to this declaration. It has been thought that
the constitutional provision empowering Congress
to issue letters of marque deprives it of the pow-
er to join in a permanent treaty abolishing pri-
vateering. 28 Am.L.Rev. 615; 24 Am.L.Rev. 902;
19 Law Mag. & Rev. 35.
PRIVATIO PRIESUPPONIT HABITUM. 2 Rol-
le, 419. A deprivation presupposes a possession.
PRIVATION. A taking away or withdrawing.
Co. Litt. 239.
PRIVATIS PACTIONIBUS NON DUBIUM EST
NON LIEDI JUS CIETERORUM. There is no
doubt that the rights of others [third parties]
cannot be prejudiced by private agreements. Dig.
2, 15, 3, pr.; Broom, Max. 697.
PRIVATORUM CONVENTIO JURI PUBLICO
NON DEROGAT. The agreement of private indi-
viduals does not derogate from the public right,
[law.] Dig. 50, 17, 45, 1; 9 Coke, 141; Broom,
Max. 695.
PRIVATUM. Lat. Private. Privatum jus, pri-
vate law. Inst. 1, 1, 4.
PRIVATUM COMMODUM PUBLICO CEDIT.
Private good yields to public. The interest of an
individual should give place to the public good.
Jenk. Cent. p. 223, case 80.
PRIVATUM INCOMMODUM PUBLICO BONO
PENSATUR. Private inconvenience is made up
for by public benefit. Jenk. Cent. p. 85, case 65;
Broom, Max. 7.
PRIVEMENT ENCEINTE. Fr. Pregnant pri-
vately. A term used to signify that a woman is
pregnant, but not yet quick with child.
PRIVIES. Those who are partakers or have an
interest in- any action or thing, or any relation to
another. Harrington v. Harrington, 3 Miss. (2
How.) 701, 717; Brown v. Fidelity Union Trust
Co., 126 N.J.Eq. 406, 9 A.2d 311, 326; Hamelik v.
Sypek, 274 N.Y.S. 875, 152 Misc. 799. They are of
six kinds:
(1) Privies of blood; such as the heir to his ancestor.
(2) Privies in representation; as executors or adminis-
trators to their deceased testator or intestate.
(3) Privies in estate ; as grantor and grantee, lessor and
lessee, assignor and assignee, etc.
(4) Privies in respect to contract.
(5) Privies in respect of estate and contract; as where
the lessee assigns his interest, but the contract between
lessor and lessee continues, the lessor not having accepted
of the assignee.
(6) Privies in law; as the lord by escheat, a tenant
by the curtesy, or in dower, the incumbent of a benefice,
a husband suing or defending in right of his wife, etc.
Wharton; H. Weston Lumber Co. v. Lacey Lumber Co.,
85 So. 193, 195, 123 Miss. 208, 10 A.L.R. 436.
"Privies," in the sense that they are bound by tire judg-
ment, are those who acquired an interest in the subject-
matter after the rendition of the judgment. Village Mills
Co. v. Houston Oil Co. of Texas, Tex.Civ.App., 186 S.W.
785, 790; Central Oregon Irr. Co. v. Young, 107 Or. 39,
213 P. 782, 784. "Privies" to a judgment are those whose
succession to the rights of property affected occurs after
the institution of the suit and form a party to it. Gill v.
Porter, 176 N.C. 451, 97 S.E. 381, 382; Lancaster v. Bork-
owski, 179 Wis. 1, 190 N.W. 852, 854.
PRIVIGNA. Lat. In the civil law. A step-daugh-
ter.
PRIVIGNUS. Lat. In the civil law. A son of a
husband or wife by a former marriage; a step-
son. Calvin.
PRIVILEGE. A particular and peculiar benefit or
advantage enjoyed by a person, company, or class,
beyond the common advantages of other citizens.
An exceptional or extraordinary power or exemp-
tion. A right, power, franchise, or immunity held
by a person or class, against or beyond the course
of the law. Waterloo Water Co. v. Village of Wa-
terloo, 193 N.Y.S. 360, 362, 200 App.Div. 718; Col-
onial Motor Coach Corporation v. City of Oswego,
215 N.Y.S. 159, 163, 126 Misc. 829; Cope v. Flanery,
234 P. 845, 849, 70 Cal.App. 738; Bank of Com-
merce & Trust Co. v. Senter, 260 S.W. 144, 147,
149 Tenn. 569; State v. Betts, 24 N.J.L. 557.
An exemption from some burden or attendance,
with which certain persons are indulged, from a
supposition of law that the stations they fill, or
the offices they are engaged in, are such as require
all their time and care, and that, therefore, without
this indulgence, it would be impracticable to exe-
cute such offices to that advantage which the pub-
lic good requires. Dike v. State, 38 Minn. 366, 38
N.W. 95; International Trust Co. v. American L.
& T. Co., 62 Minn. 501, 65 N.W. 78. State v. Gil-
man, 33 W.Va. 146, 10 S.E. 283, 6 L.R.A. 847. That
which releases one from the performance of a
duty or obligation, or exempts one from a liability
which he would otherwise be required to perform,
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PRIVILEGE
or sustain in common with all other persons.
State v. Grosnickle, 189 Wis. 17, 206 N.W. 895,
896. A peculiar advantage, exemption, or immun-
ity. Sacramento Orphanage & Children's Home v.
Chambers, 25 Cal.Ap .p. 536, 144 P. 317, 319.
Civil Law
A right which the nature of a debt gives to a
creditor, and which entitles him to be preferred
before other creditors. Civil Code La. art. 3186.
It is merely an accessory of the debt which it se-
cures, and falls with the extinguishment of the
debt. A. Baldwin & Co. v. McCain, 159 La. 966,
106 So. 459, 460. The civil-law privilege became,
by adoption of the admiralty courts, the admiralty
lien. Howe, Stud. Civ. L. 89; The J. E. Rumbell,
148 U.S. 1, 13 S.Ct. 498, 37 L.Ed. 345.
Exclusive Privilege
See Exclusive Privilege or Franchise.
Law of Libel and Slander
An exemption from liability for the speaking
or publishing of defamatory words concerning an-
other, based on the fact that the statement was
made in the performance of a duty, political, judi-
cial, social, or personal. Privilege is either ab-
solute or conditional. The former protects the
speaker or publisher without reference to his mo-
tives or the truth or falsity of the statement. This
may be claimed in respect, for instance, to state-
ments made in legislative debates, in reports of
military officers to their superiors in the line of
their duty, and statements made by judges, wit-
nesses, and jurors in trials in court. Conditional
privilege (called also "qualified privilege") will
protect the speaker or publisher unless actual mal-
ice and knowledge of the falsity of the statement
is shown. This may be claimed where the com-
munication related to a matter of public interest,
or where it was necessary to protect one's private
interest and was made to a person having an in-
terest in the same matter. Hill v. Drainage Co.,
79 Hun, 335, 29 N.Y.S. 427; Cooley v. Galyon, 109
Tenn. 1, 70 S.W. 607, 60 L.R.A. 139, 97 Am.St.Rep.
823.
"Absolute privilege" is confined to cases in which the
public service or the administration of justice requires
complete immunity from being called to account for lan-
guage used. Taber v. Aransas Harbor Terminal Ry., Tex.
Civ.App., 219 S.W. 860, 861. It is based upon the theory
that the publication of defamatory matter must be pro-
tected in the interest of and for the necessities of society,
even though it be both false and malicious. Light Pub.
Co. v. Huntress, Tex.Civ.App., 199 S.W. 1168, 1171.
"Qualified privilege" extends to all communications
made in good faith upon any subject-matter in which the
party communicating has an interest or in reference to
which he has a duty to a person having a corresponding
interest or duty, although the duty be not a legal one, but
of a moral or social character of imperfect obligation and
it arises from the necessity of full and unrestricted com-
munication concerning a matter in which the parties have
an interest or duty. Southern Ice Co. v. Black, 136 Tenn.
391, 189 S.W. 861, 863, Ann.Cas.1917E, 695.
Maritime Law
An allowance to the master of a ship of the
same general nature with primage, being compen-
sation, or rather a gratuity, customary in certain
trades, and which the law assumes to be a fair and
equitable allowance, because the contract on both
sides is made under the knowledge of such usage
by the parties. 3 Chit. Commer. Law, 431,
Parliamentary Law
The right of a particular question, motion, ar
statement to take precedence over all other busi-
ness before the house and to be considered imme-
diately, notwithstanding any consequent interfer-
ence with or setting aside the rules of procedure
adopted by the house. The matter may be one of
"personal privilege," where it concerns one mem-
ber of the house in his capacity as a legislator, or
of the "privilege of the house," where it concerns
the rights, immunities, or dignity of the entire
body, or of "constitutional privilege," where it re-
lates to some action to be taken or some order of
proceeding expressly enjoined by the constitution.
General
Privilege from arrest. A privilege extended to
certain classes of persons, either by the rules of
international law, the policy of the law, or the
necessities of justice or of the administration of
government, whereby they are exempted from ar-
rest on civil process, and, in some cases, on crim-
inal charges, either permanently, as 4n the case of
a foreign minister and his suite, or temporarily,
as in the case of members of the legislature, par-
ties and witnesses engaged in a particular suit,
etc. 1 Kent 243; 8 R. I. 43; 2 Stra. 985; 1 M. & W.
488; Parker v. Marco, 136 N.Y. 585, 32 N.E. 989, 20
L.R.A. 45, 32 Am.St.Rep. 770.
Privilege of transit. In railroading, the right
of a shipper to have a car stopped at some inter-
mediate point, the commodity shipped unloaded
and treated or changed into some other form, and
then reloaded and shipped to its destination as
though it had been a continuous shipment and at
the same rate as originally billed. Chicago, M. &
St. P. Ry. Co. v. Board of Railroad Com'rs, 47
S.D. 395, 199 N.W. 453, 454.
Privilege tax. A tax on the privilege of carry-
ing on a business for which a license or franchise
is required. Southeastern Express Co. v. City of
Charlotte, 186 N.C. 668, 120 S.E. 475, 477; Gulf
& Ship Island R. Co. v. Hewes, 183 U.S. 66, 22 S.
Ct. 26, 46 L.Ed. 86.
Privileges and immunities. Within the mean-
ing of the 14th amendment of the United States
constitution, such privileges as are fundamental,
which belong to the citizens of all free govern-
ments and which have at all times been enjoyed
by citizens of the United States. La Tourette v.
McMaster, 104 S.C. 501, 89 S.E. 398, 399. They are
only those which owe their existence to the fed-
eral government, its national character, its Con-
stitution, or its laws. Ownbey v. Morgan, 256 U.
S. 94, 41 S.Ct. 433, 65 L.Ed. 837, 17 A.L.R. 873;
Prudential Ins. Co. of America v. Cheek, 25 U.S.
530, 42 S.Ct. 516, 520, 66 L.Ed. 1044, 27 A.L.R. 27;
Rosenthal v. New York, 33 S.Ct. 27, 226 U.S. 260,
57 L.Ed. 212, Ann.Cas.1914B, 71.
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PRIVITY
Real privilege. In English law. A privilege
granted to, or concerning, a particular place or
locality.
Special privilege. In constitutional law. A
right, power, franchise, immunity, or privilege
granted to, or vested in, a person or class of per-
sons, to the exclusion of others, and in derogation
of common right. Plattsmouth v. Nebraska
Teleph. Co., 80 Neb. 460, 114 N.W. 588, 14 L.R.A.,
N.S., 654, 127 Am.St.Rep. 779.
Writ of privilege. A process to enforce or main-
tain a privilege; particularly to secure the release
of a person arrested in a civil suit contrary to his
privilege.
PRIVILEGED. Possessing or enjoying a privi-
lege; exempt from burdens; entitled to priority
or precedence.
PRIVILEGED COMMUNICATIONS. See Com-
munication.
PRIVILEGED COPYHOLDS. See Copyhold.
PRIVILEGED DEBTS. Those which an executor
or administrator, trustee in bankruptcy, and the
like, may pay in preference to others; such as
funeral expenses, servants' wages, and doctors'
bills during last sickness, etc.
PRIVILEGED DEED, In Scotch law. An instru-
ment, for example, a testament, in the execution
of which certain statutory formalities usually re-
quired are dispensed with, either from necessity
or expediency. Ersk.Inst. 3, 2, 22; Bell.
PRIVILEGED VESSEL. That one of two vessels
which, as against the other, ordinarily has the
right or duty to hold her course and speed. Un-
der International Rules, arts. 20, 22 (33 U.S.C.A.
§§ 105, 107), a sailing vessel, except when the ov-
ertaking vessel, is always the privileged vessel,
as against a steamer. The Buenos Aires, C.C.A.
N.Y., 5 F.2d 425, affirming, D.C.N.Y., The Windrush,
286 F. 251. But the fact that a vessel is privileged
does not excuse her from failing to observe the
rules, inattention to signals, or failure to answer
where an answer is required, or from adopting
such precautions as may be necessary to avoid a
collision. The West Hartland, C.C.A.Wash., 2 F.
2d 834.
PRIVILEGED VILLENAGE. In old English law.
A species of villenage in which the tenants held
by certain and determinate services; otherwise
called "villein-socage." Bract. fol. 209. Now call-
ed "privileged copyhold," incuding the tenure in
ancient demesne. 2 Bl.Comm. 99, 100.
PRIVILEGIA QUIE RE VERA SUNT IN PRZE-
JUDICIUM REIPUBLICIE, MAGIS TAMEN HA-
BENT SPECIOSA FRONTISPICIA, ET BONI
PUBLICI PRZETEXTUM, QUAM BONZE ET LE-
GALES CONCESSIONES; SED PRZETEXTU LI-
CIT' NON DEBET ADMITTI ILLICTUM. 11
Coke, 88. Privileges which are truly in prejudice
of public good have, however, a more specious
front and pretext of public good than good and
legal grants; but, under pretext of legality, that
which is illegal ought not to be admitted.
PRIVILEGIUM. In Roman law. A special con-
stitution by which the Roman emperor conferred
on some single person some anomalous or irreg-
ular right, or imposed upon some single person
some anomalous or irregular obligation, or in-
flicted on some single person some anomalous or
irregular punishment. When such privilegia con-
ferred anomalous rights, they were styled "fa-
vorable." When they imposed anomalous obliga-
tions, or inflicted anomalous punishments, they
were styled "odious." Aust.Jur. § 748. A pri-
vate law inflicting a punishment or conferring a
reward. Calvinus, Lex.; Cicero, de Lege, 3, 19;
pro Domo 17; Vicat, Voc.Jur.
In modern civil law. Every peculiar right or
favor granted by the law, contrary to the com-
mon rule. Mackeld. Rom. Law, § 197. A species
of lien or claim upon an article of property, not
dependent upon possession, but continuing until
either satisfied or released. Such is the lien, rec-
ognized by modern maritime law, of seamen upon
the ship for their wages. 2 Pars. Mar. Law, 561.
PRIVILEGIUM CLERICALE. The benefit of
clergy, (q. v.).
PRIVILEGIUM EST BENEFICIUM PERSON-
ALE, ET EXTINGUITUR CUM PERSONA. 3
Bulst. 8. A privilege is a personal benefit, and
dies with the person.
PRIVILEGIUM EST QUASI PRIVATA LEX. 2
Bulst. 189. Privilege is, as it were, a private law.
PRIVILEGIUM NON VALET CONTRA REM-
PUBLICAM. Privilege is of no force against the
commonwealth. Even necessity does not excuse,
where the act to be done is against the common-
wealth. Bac. Max. p. 32, in reg. 5; Broom, Max.
18; Noy, Max., 9th ed. 34.
PRIVILEGIUM, PROPERTY PROPTER. A qual-
ified property in animals ferce naturce;  e., a
privilege of hunting, taking, and killing them, in
exclusion of others. 2 Bl.Comm. 394; 2 Steph.
Comm. 9.
PRIVITY. Mutual or successive relationship to
the same rights of property. 1 Greenl.Ev. § 189;
Duffy v. Blake, 91 Wash. 140, 157 P. 480, 482;
Haverhill v. International Ry. Co., 217 App.Div.
521, 217 N.Y.S. 522, 523.
Thus, the executor is in privity with the testator, the
heir with the ancestor, the assignee with the assignor, the
donee with the donor, and the lessee with the lessor.
Litchfield v. Crane, 8 S.Ct. 210, 123 U.S. 549, 31 L. Ed. 199.
Derivative interest founded on, or growing out
of, contract, connection, or bond of union between
parties; mutuality of interest. Hodgson v. Mid-
west Oil Co., C.C.A.Wyo., 17 F.2d 71, 75.
Private knowledge; joint knowledge with an-
other of a private concern; cognizance implying
a consent or concurrence. Taylor v. Ferroman
Properties, 103 Fla. 960, 139 So. 149, 150.
In a strict and technical sense a judgment creditor does
not occupy such a relation to his debtor as to fall within
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PRIVITY
the meaning of the word "privity," for there is no succes-
sion to the property of the debtor until a sale under execu-
tion is had and the judgment creditor has become vested
with the title thereof. But a majority of the courts have
enlarged the meaning of the word, and consequently have
held that there is privity between the two before there is
an actual devolution of the title of the property owned by
the debtor. Buss v. Kemp Lumber Co., 23 N.M. 567, 170
P. 54, 56, L.R.A.1918C, 1015.
Privity of blood exists between an heir and his
ancestor, (privity in blood inheritable,) and be-
tween coparceners. This privity was formerly of
importance in the law of descent cast. Co. Litt.
271a, 242a; 2 Inst. 516; 8 Coke, 42b.
Privity of contract is that connection or rela-
tionship which exists between two or more con-
tracting parties. It is essential to the mainte-
nance of an action on any contract that there
should subsist a privity between the plaintiff and
defendant in respect of the matter sued on.
Brown.
Privity of estate is that which exists between
lessor and lessee, tenant for life and remainder-
man or reversioner, etc., and their respective as-
signees, and between joint tenants and copar-
ceners. Privity of estate is required for a release
by enlargement. Sweet.
PRIVITY OR KNOWLEDGE. Under Rev.St. §1
4283-4286 (46 U.S.C.A. §1 183-186) withholding
the right to limit liability if the shipowner had
"privity or knowledge" of the fault which oc-
casioned damages, privity or knowledge must be
actual and not merely constructive, and must in-
volve a personal participation of the owner in
some fault or act of negligence causing or con-
tributing to the injury suffered. The 84-H, C.C.
A.N.Y., 296 F. 427, 431. The words import actual
knowledge of the things causing or contributing
to the loss, or knowledge or means of knowledge
of a condition of things likely to produce or con-
tribute to the loss without adopting proper means
to prevent it. Petition of Canadian Pac. Ry. Co.,
D.C.Wash., 278 F. 180, 189.
PRIVY. A person who is in privity with another.
One who is a partaker or has any part or interest
in any action, matter, or thing. See Privies;
Privity.
Also, a water-closet. Louisville & N. R. Co. v.
Commonwealth, 175 Ky. 282, 194 S.W. 313, 314.
As an adjective, the word has practically the
same meaning as "private."
PRIVY COUNCIL. In English law. The prin-
cipal council of the sovereign, composed of the
cabinet ministers, and other persons chosen by
the king or queen as privy councillors. 2 Steph.
Comm. 479, 480. The judicial committee of the
privy council acts as a court of ultimate appeal
in various cases.
PRIVY COUNCILLOR. A member of the privy
council.
PRIVY SEAL. In English law. A seal used in
making out grants or letters patent, preparatory
to their passing under the great seal. 2 Bl.Comm.
347. A seal which the king uses to such grants or
things as pass the great seal. Co. 2d Inst. 554. A
seal of the British government which is affixed to
documents not requiring the great seal. Encycl.
Br.
PRIVY SIGNET. In English law. The signet or
seal which is first used in making out grants and
letters patent, and which is always in the custody
of the principal secretary of state. 2 Bl.Comm.
347.
PRIVY TOKEN. A false mark or sign, forged
object, counterfeited letter, key, ring, etc., used
to deceive persons, and thereby fraudulently get
possession of property. St. 33 Hen. VIII. c. 1. A
false privy token is a false privy document or
sign, not such as is calculated to deceive men gen-
erally, but designed to defraud one or more in-
dividuals. Cheating by such false token was not
indictable at common law. Pub. St. Mass. 1882,
p. 1294.
PRIVY VERDICT. In practice. A verdict given
privily to the judge out of court, but which was
of no force unless afterwards affirmed by a pub-
lic verdict given openly in court. 3 Bl.Comm.
377. Kramer v. Kister, 187 Pa. 227, 40 A. 1008, 44
L.R.A. 432. Now generally superseded by the
"sealed verdict," i. e., -one written out, sealed up,
and delivered to the judge or the clerk of the
court.
PRIZE. Anything offered as a reward of con-
test; a reward offered to the person who, among
several persons or among the public at large,
shall first (or best) perform a certain undertak-
ing or accomplish certain conditions.
An award or recompense for some act done; some valua-
ble thing offered by a person for something done by others.
It is distinguished from a "bet" or "wager" in that it is
known before the event who is to give either the premium
or the prize, and there is but one operation until the ac-
complishment of the act, thing, or purpose for which it is
offered. People v. Cohen, 289 N.Y.S. 397, 400, 160 Misc. 10.
In %admiralty law. A vessel or cargo, belong-
ing to one of two belligerent powers, apprehend-
ed or forcibly captured at sea by a war-vessel or
privateer of the other belligerent, and claimed
as enemy's property, and therefore liable to ap-
propriation and condemnation under the laws of
war. 1 C.Rob.Adm. 228. The apprehension and
detention at sea of a ship or other vessel, by au-
thority of a belligerent power, either with the de-
sign of appropriating it, with the goods and ef-
fects it contains, or with that of becoming master
of the whole or a part of its cargo. 1 C.Rob. 228.
Captured property regularly condemned by the sentence
of a competent prize court. 1 Kent, Comm. 102.
3Goods taken on land from a public enemy are called
"booty" ; and the distinction between a prize and booty
consists in this, that the former is taken at sea and the
latter on land.
PRIVY PURSE. In English law. The income set
apart for the sovereign's personal use.
PRIZE COURTS. Courts having jurisdiction to
adjudicate upon captures made at sea in time of
war, and to condemn the captured property as
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PRO INDIVISO
prize if lawfully subject to that sentence. In
England, the admiralty courts have jurisdiction
as prize courts, distinct from the jurisdiction on
the instance side. A special commission issues in
time of war to the judge of the admiralty court,
to enable him to hold such court. In America, the
federal district courts have jurisdiction in cases
of prize. 1 Kent, Comm. 101-103, 353-360. See
Penhallow v. Doane, 3 Dall. 91, 1 L.Ed. 507.
PRIZE-FIGHT. A bout between two persons who
fight each other by means of their fists, by con-
sent, and who have an expectation of reward to
be gained by the contest or competition, either
to be won from the contestant or to be otherwise
awarded, where there is an intent to inflict some
degree of bodily harm on the contestant. Mag-
ness v. Isgrig, 145 Ark. 232, 225 S.W. 332, 334. An
exhibition contest of pugilists for a stake or re-
ward. Sampson v. State, 18 Okl.Cr. 191, 194 P.
2.79, 280; Fitzsimmons v. New York State Ath-
letic Commission, Sup., 146 N.Y.S. 117, 120. It is
not essential that the fight should be with the
naked fist or hand. Sampson v. State, 18 Okl.Cr.
191, 194 P. 279, 280.
PRIZE GOODS. Goods which are taken on the
high seas, jure belli, out of the hands of the en-
emy. The Adeline, 9 Cranch 244, 284, 3 L.Ed.
719.
PRIZE LAW. The system of laws and rules ap-
plicable to the capture of prize at sea; its con-
demnation, rights of the captors, distribution of
the proceeds, etc. The Buena Ventura, D.C.Fla.,
87 F. 927, 929.
PRIZE MONEY. A dividend from the proceeds
of a captured vessel, etc., paid to the captors. U.
S. v. Steever, 5 S.Ct. 765, 113 U.S. 747, 28 L.Ed.
1133.
PRO. For; in respect of; on account of ; in be-
half of. The introductory word of many Latin
phrases.
PRO AND CON. For and against. A phrase
descriptive of the presentation of arguments or
evidence on both sides of a disputed question.
PRO BONO ET MALO. For good and ill; for
advantage and detriment.
PRO BONO PUBLICO. For the public good; for
the welfare of the whole.
PRO CONFESSO. For confessed; as confessed.
A term applied to a bill in equity, and the decree
founded upon it, where no answer is made to it
by the defendant. 1 Barb.Ch.Pr. 96; The Rich-
mond, D.C.Del., 2 F.2d 903.
PRO CONSILIO. For counsel given. An annuity
pro consilio amounts to a condition, but in a feoff-
ment or lease for life, etc., it is the consideration,
and does not amount to a condition; for the
state of the land by the feoffment is executed, and
the grant of the annuity is executory. Plowd. 412.
PRO CORPORE REGNI. In behalf of the body
of the realm. Hale, Corn. Law, 32.
PRO DEFECTU EMPTORUM. For want (fail-
ure) of purchasers.
PRO DEFECTU EXITUS. For, or in case of, de-
fault of issue. 2 Salk. 620.
PRO DEFECTU ILEREDIS. For want of an heir.
PRO DEFECTU JUSTITIZE. For defect or want
of justice. Fleta, lib. 2, c. 62, § 2.
PRO DEFENDENTE. For the defendant. Com-
monly abbreviated "pro def."
PRO DERELICTO. As derelict or abandoned.
A species of usucaption in the civil law. Dig. 41,
7.
PRO DIGNITATE REGALI. In consideration of
the royal dignity. 1 Bl.Comm. 223.
PRO DIVISO. As divided; e., in severalty.
PRO DOMINO. As master or owner; in the
character of master. Calvin.
PRO DONATO. As a gift; as in case of gift;
by title of gift. A species of usucaption in the
civil law. Dig. 41, 6. See Id. 5, 3, 13, 1.
PRO DOTE. As a dowry; by title of dowry. A
species of usucaption. Dig. 41, 9. See Id. 5, 3,
13, 1.
PRO EMPTORE. As a purchaser; by the title
of a purchaser. A species of usucaption. Dig. 41,
4, 5, 3, 13, 1.
PRO EO QUOD. In pleading. For this that.
This is a phrase of affirmation, and is sufficiently
direct and positive for introducing a material
averment. 1 Saund. 117, no. 4; 2 Chit.Pl. 369-
393.
PRO FACTO. For the fact; as a fact; consid-
ered or held as a fact.
PRO FALSO CLAMOR :E SUO. A nominal
amercement of a plaintiff for his false claim,
which used to be inserted in a judgment for the
defendant. Obsolete.
PRO FORMA. As a matter of form. 3 East,
232; 2 Kent, Comm. 245.
The phrase "pro forma," in an appealable decree or
judgment, usually means that the decision was rendered,
not on a conviction that it was right, but merely to facili-
tate further proceedings. Cramp & Sons S. & E. Bldg.
Co. v. Turbine Co., 33 Sup.Ct. 722, 228 U.S. 645, 57 L.Ed.
1003.
PRO HAC VICE. For this turn; for this one
particular occasion.
PRO ILLA VICE. For that turn. 3 Wils. 233,
arg.
PRO INDEFENSO. As undefended; as making
no defense. A phrase in old practice. Fleta, lib.
1, c. 41, § 7.
PRO INDIVISO. As undivided; in common. The
joint occupation or possession of lands. Thus,
lands held by coparceners are held pro indiviso;
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that is, they are held undividedly, neither party
being entitled to any - specific portions of the land
so held, but both or all having a joint interest in
the undivided whole. Cowell; Bract. 1, 5.
PRO INTERESSE SUO. According to his inter-
est; to the extent of his interest. Thus, a third
party may be allowed to intervene in a suit pro
interesse suo.
Examination pro interesse suo. When a per-
son claims to be entitled to an estate or other
property sequestered, whether by mortgage, judg-
ment, lease, or otherwise, or has a title paramount
to the sequestration, he should apply to the court
to direct an inquiry whether the applicant has
any, and what, interest in the property; and this
inquiry is called an "examination pro interesse
suo." Krippendorf v. Hyde, 4 S.Ct. 27, 110 U.S.
276, 28 L.Ed. 145; Hitz v. Jenks, 22 S.Ct. 598, 185
U.S. 155, 46 L.Ed. 851.
PRO LJESIONE FIDEL For breach of faith. 3
Bl.Comm. 52.
PRO LEGATO. As a legacy; by the title of a
legacy. A species of usucaption. Dig. 41, 8.
PRO MAJOR! CAUTELA. For greater caution;
by way of additional security. Usually applied to
some act done, or . some clause inserted in an in-
strument, which may not be really necessary, but
which will serve to put the matter beyond any
question.
PRO NON SCRIPTO. As not written; as though
it had not been written; as never written. Ambl.
139.
PRO OPERE ET LABORE. For work and labor.
1 Comyns, 18.
PRO PARTIBUS LIBERANDIS. An ancient writ
for partition of lands between co-heirs. Reg. Orig.
316.
PRO POSSE SUO. To the extent of his power
or ability. Bract. fol. 109.
PRO POSSESSIONE PRIESUMITUR DE JURE.
From possession arises a presumption of law.
PRO POSSESSORE. As a possessor; by title of
a possessor. Dig. 41, 5. See Id. 5, 3, 13.
PRO POSSESSORE HABETUR QUI DOLO IN-
JURIAVE DESIIT POSSIDERE. He is esteemed
a possessor whose possession has been disturbed
by fraud or injury. Off. Exec. 166.
PRO QUERENTE. For the plaintiff; usually ab-
breviated pro quer.
PRO RATA. Proportionately; according to a cer-
tain rate, percentage, or proportion. According to
measure, interest, or liability. Chaplin v. Griffin,
252 Pa. 271, 97 A. 409, 411, Ann.Cas.1918C, 787.
According to a certain rule or proportion. 19
Am.L.Reg.N.S. 355, n. (U.S.D.C.Cal.).
Thus, the creditors (of the same class) of an insolvent
estate are to be paid pro rata; that is, each Is to receive
a dividend bearing the same ratio to the whole amount of
his claim that the aggregate of assets bears to the ag-
gregate of debts.
PRO RE NATA. For the affair immediately in
hand; for the occasion as it may arise; adapted
to meet the particular occasion. Thus, a course
of judicial action adopted under pressure of the
exigencies of the affair in hand, rather than in
conformity to established precedents, is said to
be taken pro re nata.
PRO SALUTE ANIME. For the good of his
soul. All prosecutions in the ecclesiastical courts
are pro salute animce; hence it will not be a tem-
poral damage founding an action for slander
that the words spoken put any one in danger of
such a suit. 3 Steph.Comm. (7th Ed.) 309n, 437;
4 Steph.Comm. 207.
PRO SE. For himself; in his own behalf; in
person.
PRO SOCIO. For a partner; the name of an
action in behalf of a partner. A title of the civil
law. Dig. 17, 2; Cod. 4, 37.
PRO SOLIDO. For the whole; as one; jointly;
without division. Dig. 50, 17, 141, 1.
PRO TANTO. For so much; for as much as
may be; as far as it goes. Donley v. Hays, 17
Serg. & R. (Pa.) 400.
PRO TEMPORE. For the time being; temporar-
ily; provisionally.
PROAMITA. Lat. In the civil law. A great pa-
ternal aunt; the sister of one's grandfather.
PROAMITA MAGNA. Lat. In the civil law. A
great-great-aunt.
PROAVIA. Lat. In the civil law. A great-grand-
mother. Inst. 3, 6, 3; Dig. 38, 10, 1, 5.
.PROAVUNCULUS. Lat. In the civil law. A.
great-grandfather's or great-grandmother's broth-
er. Inst. 3, 6, 3; Bract. fol. 68b; Ainsworth, Dict.
PROAVUS. Lat. In the civil law. A great-grand-
father. Inst. 3, 6, 1; Bract. fols. 67, 68. Em-
ployed in making genealogical tables.
PROBABILITY. Likelihood; appearance of real-
ity or truth; reasonable ground of presumption;
verisimilitude; consonance to reason. The like-
lihood of a proposition or hypothesis being true,
from its conformity to reason or experience, or
from superior evidence or arguments adduced in
its favor. People v. O'Brien, 130 Cal. 1, 62 P.
297; Shaw v. State, 125 Ala. 80, 28 So. 390. Cop-
pinger v. Broderick, 39 Ariz. 473, 295 P. 780, 781.
Inference; assumption; presumption. Ohio Bldg.
Safety Vault Co. v. Industrial Board, 277 Ill. 96,
115 N.E. 149, 154. A condition or state created
when there is more evidence in favor of the exis-
tence of a given proposition than there is against
it. Harris v. State, 8 Ala.App. 33, 62 So. 477, 479.
High probability rule. A rule relating to the
right of insured to abandon a vessel, by virtue
of which the right of abandonment does not de-
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PROBATE
pend upon the certainty, but upon the high prob-
ability of a total loss, either of the property, or
voyage, or both. The result is to act not upon
certainties, but upon probabilities; and .tf the
facts present a case of extreme hazard, and of
probable expense, exceeding half the value of the
ship, the insured may abandon, though it should
happen that she was afterwards recovered at a
less expense. Fireman's Fund Ins. Co. v. Globe
Na y . Co., C.C.A.Wash., 236 F. 618, 635. In re
Salomon's Estate, 287 N.Y.S. 814, 821, 159 Misc.
379.
PROBABLE. Having the appearance of truth;
having the character of probability; appearing to
be founded in reason or experience. State v.
Thiele, 119 Iowa, 659, 94 N.W. 256. Having more
evidence for than against; supported by evidence
which inclines the mind to believe, but leaves
some room for doubt; likely. Barrett v. Green
River Sr. Rock Springs Live Stock Co., 28 Wyo.
379, 205 P. 742, 743. Apparently true, yet possibly
false. Spadra Creek Coal Co. v. Harger, 130 Ark.
374, 197 S.W. 705.
PROBABLE CAUSE. Reasonable cause. State
v. Baltes, 183 Wis. 545, 198 N.W. 282, 284. Having
more evidence for than against. Ex parte Souza,
65 Cal.App. 9, 222 P. 869, 870. A reasonable
ground for belief in the existence of 'facts war-
ranting the proceedings complained of. Owens
v. Graetzel, 149 Md. 689, 132 A. 265, 267. An ap-
parent state of facts found to exist upon reason-
able inquiry, (that is, such inquiry as the given
case renders convenient and proper,) which would
induce a reasonably intelligent and prudent man
to believe, in a criminal case, that the accused
person had committed the crime charged, or, in a
civil case, that a cause of action existed. Brand
v. Hinchman, 68 Mich. 590, 36 N.W. 664, 13 Am.
St.Rep. 362; Cook v. Singer Sewing Mach. Co.,
138 Cal.App. 418, 32 P.2d 430, 431.
In malicious prosecution the existence of such facts and
circumstances as would excite the belief in a reasonable
mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime
for which he was prosecuted. Lunsford v. Dietrich, 86 Ala.
250, 5 So. 461, 11 Am.St.Rep. 37. A reasonable ground of
suspicion, supported by circumstances sufficiently strong in
themselves to warrant a prudent and cautious man to
believe that the accused is guilty of the offense with which
he is charged. Sanders v. Palmer, N.Y., 55 F. 217, 5 C.C.
A. 77. Such a state of facts and circumstances known to
the prosecutor personally or by information from others
as would, in the judgment of the court, lead a man of or-
dinary caution, acting conscientiously in the light of such
facts and circumstances, to believe that the person charged
is guilty. Keebey v. Stifft, 145 Ark. 8, 224 S. W. 396, 400.
See, also, Galley v. Brennan, 216 N.Y. 118, 110 N.E. 179,
180. Where defendant in an action for malicious prosecu-
tion shows that before commencing the prosecution he, in
good faith, consulted an attorney of good standing and
made a full disclosure of all of the facts reasonably ob-
tainable, and in good faith acted upon such advice, this
of itself constitutes "probable cause." Gustason v. Speak,
85 Cal.App. 18, 258 P. 725, 726; Treloar v. Harris, 66 Ind.
App. 159, 117 N.E. 975, 976.
As justifying arrest without a warrant by one believed
guilty of felony or to be engaged in commission of a
felony, is a belief fairly arising out of facts and circum-
stances known to officer that a party is engaged in com-
mission of a crime. Day v. U. S., C.C.A.Neb., 37 F.2d 80,
81.
For search warrant means reasonable ground of sus-
picion, supported by circumstances sufficiently strong to
warrant cautious man in believing party is guilty of of-
fense charged. Shore v. U. S., 49 F.2d 519, 521, 60 App.D.
C. 137.
For arrest which must be shown as justification by de-
fendants in action for false imprisonment is reasonable
ground of suspicion supported by circumstances sufficient
in themselves to warrant cautious man in believing accused
to be guilty, but does not depend on actual state of case
in point of fact, as it may turn out upon legal investiga-
tion, but on knowledge of facts which would be sufficient
to induce reasonable belief in truth of accusation. Christ
v. McDonald, 152 Or. 494, 52 P.2d 655, 658.
PROBABLE CONSEQUENCE. One that is more
likely to follow its supposed cause than it is not
to follow it. See, also, Collins v. Pecos & N. T.
Ry. Co., 110 Tex. 577, 212 S.W. 477, 478.
PROBABLE EVIDENCE. Presumptive evidence
is so called, from its foundation in probability.
PROBABLE FUTURE PAYMENTS. This expres-
sion in the Workmen's Compensation Act, pro-
viding for commutation at an amount which will
equal the total sum of the probable future pay-
ments capitalized at their present value upon the
basis of interest calculated at 3 per cent. per an-
num, means such payments as would ordinarily
become payable in the natural course of events,
taking into consideration the expectancy of the
beneficiary. H. W. Clark Co. v. Industrial Com-
mission, 291 Ill. 561, 126 N.E. 579, 582.
PROBABLE GROUND. As used in the Illinois
Quo Warranto Act, requiring the judge to be sat-
isfied there is probable ground for the proceeding
before granting leave to file the information in
quo warranto, means a reasonable ground of pre-
sumption that a charge is or may be well found-
ed. People v. Hartquist, 311 Ill. 127, 142 N.E. 475,
476.
PROBABLE REASONING. In the law of evi-
dence. Reasoning founded on the probability of
the fact or proposition sought to be proved or
shown; reasoning in which the mind exercises a
discretion in deducing a conclusion from premis-
es. Burrill.
PROBABLY. In all probability; so far as the
evidence shows; presumably; likely. In re Salo-
mon's Estate, 287 N.Y.S. 814, 820, 159 Misc. 379.
PROBANDI NECESSITAS INCUMBIT ILLI QUI
AGIT. The necessity of proving lies with him
who sues. Inst. 2, 20, 4. In other words, the bur-
den of proof of a proposition is upon him who ad-
vances it affirmatively.
PROBARE. In Saxon law. To claim a thing as
one's own. Jacob.
In modern law language. To Make proof, as
in the term "onus probandi," the burden or duty
of making proof.
PROBATE. Originally, relating to proof; after-
wards, relating to the proof of wills.
The act or process of proving a will. Ross'
Estate v. Abrams, Tex.Civ.App., 239 S.W. 705, 707.
The proof before an ordinary, surrogate, register,
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PROBATE
or other duly authorized person that a document
produced before him for official recognition and
registration, and alleged to be the last will and
testament of a certain deceased person, is such
in reality. A judicial act or determination of a
court having competent jurisdiction establishing
the validity of a will. Simpson v. Anderson, 305
Ill. 172, 137 N.E. 88, 89; Peterson v. Demmer, D.
C.Tex., 34 F.Supp. 697, 700.
Also, the copy of the will, made out in parch-
ment or due form, under the seal of the ordinary
or court of probate; and usually delivered to the
executor or administrator of the deceased, to-
gether with a certificate of the will's having been
proved.
In American law, now a general name or term
used to include all matters of which probate
courts have jurisdiction. Johnson v. Harrison, 47
Minn. 575, 50 N.W. 923, 28 Am.St.Rep. 382.
In the canon law, "probate" consisted of pro-
batio, the proof of the will by the executor, and
approbatio, the approbation given by the eccle-
siastical judge to the proof. 4 Reeve, Eng. Law,
77. McCoy v. Clayton, 119 Pa. 133, 12 A. 860;
Reno v. McCully, 65 Iowa 629, 22 N.W. 902; Ap-
peal of Dawley, 16 R.I. 694, 19 A. 248.
The term is used, particularly in Pennsylvania, but not
in a strictly technical sense, to designate the proof of his
claim made by a non-resident plaintiff (when the same is
on book-account, promissory note, etc.) who swears to the
correctness and justness of the same, and that it is due, be-
fore a notary or other officer in his own state ; also of the
copy or statement of such claim filed in court, with the
jurat of such notary attached. Stevens v. D. R. Dunlap
Mercantile Co., 108 Miss. 690, 67 So. 160, 161.
Common and solemn form of probate. In Eng-
lish law, there are two kinds of probate, namely,
probate in common form, and probate in solemn
form. Probate in common form is granted in the
registry, without any formal procedure in court,
upon an ex parte application made by the execu-
tor. Probate in solemn form is in the nature of a
final decree pronounced in open court, all parties
interested having been duly cited. The difference
between the effect of probate in common form
and probate in solemn form is that probate in
common form is revocable, whereas probate in
solemn form is irrevocable, as against all per-
sons who have been cited to see the proceedings,
or who can be proved to have been privy to those
proceedings, except in the case where a will of
subsequent date is discovered, in which case pro-
bate of an earlier will, though granted in solemn
form, would be revoked. Coote, Prob. Pr. (5th
Ed.) 237-239; Mozley & Whitley. And see Luther
v. Luther, 122 Ill. 558, 13 N.E. 166.
PROBATE BOND. One required by law to be
given to the probate court or judge, as incidental
to proceedings in such courts, such as the bonds
of executors, administrators, and guardians.
Thomas v. White, 12 Mass. 367.
PROBATE CODE. The body or system of law
relating to all matters of which probate courts
have jurisdiction. Johnson v. Harrison, 47 Minn.
575, 50 N.W. 923, 28 Am.St.Rep. 382.
PROBATE COURT. See Court of Probate.
PROBATE, DIVORCE, AND ADMIRALTY DIVI-
SION. That division of the English high court
of justice which exercises jurisdiction in matters
formerly within the exclusive cognizance of the
court of probate, the court for divorce and matri-
monial causes, and the high court of admiralty.
(Judicature Act 1873, § 34.) It consists of two
judges, one of whom is called the "President."
The existing judges are the judge of the old pro-
bate and divorce courts, who is president of the
division, and the judge of the old admiralty court,
and of a number of registrars. Sweet.
PROBATE DUTY. A tax laid by government on
every will admitted to probate or on the gross
value of the personal property of the deceased
testator, and payable out of the decedent's estate.
PROBATE HOMESTEAD. See Homestead.
PROBATE JUDGE. The judge of a court of pro-
bate.
PROBATE JURISDICTION. The exercise of the
ordinary, generally understood power of a pro-
bate court, which includes the establishment of
wills, settlement of decedents' estates, supervision
of guardianship of infants, control of their prop-
erty, allotment of dower, and other powers per-
taining to such subjects. Clark v. Carolina
Homes, 189 N.C. 703, 128 S.E. 20, 25.
PROBATE MATTERS. Matters pertaining to the
settlement of estates of deceased persons. In re
Bishop's Estate, 370 Ill. 173, 18 N.E.2d 218, 219.
PROBATE PROCEEDING. A general designa-
tion of the actions and proceedings whereby the
law is administered upon the various subjects
within probate jurisdiction. Jackson v. Porter,
87 Okl. 112, 209 P. 430, 435. Specifically, a pro-
ceeding in rem for the determination of the dis-
position of decedents' property. Lillard v. Tolli-
ver, 154 Tenn. 304, 285 S.W. 576, 578. A proceed-
ing to contest the validity, as a will, of a paper
which had been admitted to probate as such, or
to have a paper probated as a will. Jackson v.
Porter, 87 Okl. 112, 209 P. 430, 435.
PROBATIO. Lat. Proof ; more particularly di-
rect, as distinguished from indirect or circumstan-
tial evidence.
PROBATIO MORTUA. Dead proof; that is proof
by inanimate objects, such as deeds or other writ-
ten evidence.
PROBATIO PLENA. In the civil law. Full
proof; proof by two witnesses, or a public instru-
ment. Hallifax, Civil Law, b. 3, c. 9, no. 25; 3 Bl.
Comm. 370.
PROBATIO SEMI-PLENA. In the civil law.
Half-full proof; half-proof. Proof by one wit-
ness, or a private instrument. Hallifax, Civil
Law, b. 3, c. 9, no. 25; 3 Bl.Comm. 370.
PROBATIO VIVA. Living proof; that is, proof
by the mouth of living witnesses.
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PROBATION. The evidence which proves a thing;
the act of proving; proof. Trial; test; the
time of novitiate. Used in the latter sense in the
monastic orders, and sometimes in civil service
laws and the like. People ex rel. Walter v.
Woods, 168 App.Div. 3, 153 N.Y.S. 872.
In modern criminal administration, allowing a
person convicted of some minor offense (particu-
larly juvenile offenders) to go at large, under a
suspension of sentence, during good behavior, and
generally under the supervision or guardianship
of a probation officer. People ex rel. Schindler v.
Kaiser, 95 Misc. 681, 159 N.Y.S. 322, 325. An act
of grace and clemency which may be granted by
the trial court to a seemingly deserving defendant
whereby such defendant may escape the extreme
rigors of the penalty imposed by law for the of-
fense of which he stands convicted. People v.
Leach, 22 Cal.App.2d 525, 71 P.2d 594, 595.
PROBATION OFFICER. An officer or assistant
of the court to assist in the exercise of the juris-
diction which courts of chancery have exercised
from time immemorial to protect the financial,
social, and moral welfare of infants within their
jurisdiction, or to assist in the administration of
the probation system for offenders against the
criminal laws. State v. Monongalia County Court,
82 W.Va. 564, 96 S.E. 966, 968.
PROBATION SYSTEM. A 'system of administer-
ing the criminal laws, based on the effort to en-
courage good behavior in a convicted criminal by
granting a deduction from his sentence or in case
of its being his first offense, releasing him on con-
dition that, for a stated period, he lead an order-
ly life.
PROBATIONER. One who is upon trial. A con-
victed offender who is allowed to go at large, un-
der suspension of sentence, during good behavior.
PROBATIONES DEBENT ESSE EVIDENTES, ID
EST, PERSPICUIE ET FACILES INTELLIGI.
Co. Litt. 283. Proofs ought to be evident, that is,
perspicuous and easily understood.
PROBATIS EXTREMIS, PRAZESUMUNTUR ME-
DIA. The extremes being proved, the interme-
diate proceedings are presumed. 1 Greenl. Ev. §
20.
PROBATIVE. In the law of evidence. Having
the effect of proof; tending to prove, or actually
proving.
Testimony carrying quality of proof and having fitness
to induce conviction of truth, consisting of fact and reason
co-operating as co-ordinate factors. Globe Indemnity Co.
v. Daviess, 243 Ky. 356, 47 S.W.2d 990, 992.
PROBATIVE FACTS. In the law of evidence.
Facts which actually have effect of proving facts
sought; evidentiary facts. 1 Benth. Ev. 18. Mat-
ters of evidence required to prove ultimate facts.
Johnson v. Inter-Southern Life Ins. Co., 244 Ky.
83, 50 S.W.2d 16.
PROBATOR. In old English law. Strictly, an
accomplice in felony who to save himself con-
fessed the fact, and charged or accused any other
as principal or accessory, against whom he was
bound to make good his charge. It also signified
an approver, or one who undertakes to prove a
crime charged upon another. Jacob. See State
v. Graham, 41 N.J.L. 16, 32 Am.Rep. 174.
PROBATORY TERM. In the practice of the Eng-
lish admiralty courts, the space of time allowed
for the taking of testimony in an action, after
issue formed. It is common to both parties, and
either party may examine his witnesses. 2 Brown,
Civ. Law 418.
PROBATUM EST. Lat. It is tried or proved.
PROBUS ET LEGALIS HOMO. Lat. A good and
lawful man. A phrase particularly applied to a
juror or witness who was free from all exception,
and competent in point of law to serve on juries.
Cro. Eliz. 654, 751; Cro. Jac. 635; Mart. & Y. 147;
Bac. Abr. Juries (A) ; 3 Bl.Comm. 102. In the
plural form: probi et legales homines.
PROCEDENDO. In practice. A writ by which
a cause which has been removed from an inferior
to a superior court by certiorari or otherwise is
sent down again to the same court, to be proceed-
ed in there, where it appears to the superior
court that it was removed on insufficient grounds.
Cowell; Yates v. People, 6 Johns. (N. Y.) 446; 2
W.Bla. 1060; 6 Term 365.
A writ (procedendo ad judicium) which issued
out of the common-law jurisdiction of the court
of chancery, when judges of any subordinate
court delayed the parties for that they would not
give judgment either on the one side or on the
other, when they ought so to do. In such a case, a
writ of procedendo ad judicium was awarded,
commanding the inferior court in the sovereign's
name to proceed to give judgment, but without
specifying any particular judgment. Wharton.
McCord v. Briggs and Turivas, 338 Ill. 158, 170 N.
E. 320, 324. It was the earliest remedy for the
refusal or neglect of justice on the part of the
courts. In re Press Printers & Publishers, C.C.A.
N.J., 12 F.2d 660, 664.
A writ by which the commission of a justice of
the peace is revived, after having been suspended.
1 Bl.Comm. 353.
PROCEDENDO ON AID PRAYER. If one pray
in aid of the crown in real action, and aid be
granted, it shall be awarded that he sue to the
sovereign in chancery, and the justices in the
common pleas shall stay until this writ of pro-
cedendo de loquela come to them. So, also, on a
personal action. New Nat. Brev. 154.
PROCEDURAL LAW. That which prescribes
method of enforcing rights or obtaining redress
for their invasion; machinery for carrying on a
suit. Barker v. St. Louis County, 340 Mo. 986,
104 S.W.2d 371, 377, 378, 379.
As relating to crimes, that which provides or regulates
the steps by which one who violates a criminal statute is
punished. State v. Elmore, 179 La. 1057, 155 So. 896.
PROCEDURE. .The mode of proceeding by which
a legal right is enforced, as distinguished from
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the law which gives or defines the right, and
which, by means of the proceeding, the court Is
to administer; the machinery, as distinguished
from its product. Per Lush, L. J., in 7 Q. B. Div,
333. That which regulates the formal steps in an,
action or other judicial proceeding; a form, man-
ner, and order of conducting suits or prosecutions.
Mahoning Valley Ry. Co. v. Santoro, 93 Ohio St.
53, 112 N.E. 190, 191. The judicial process for en-
forcing rights and dutids recognized by substan-
tive law and for justly administering redress for
infraction of them. Sims v. United Pacific Ins.
Co., D.C.Idaho, 51 F.Supp. 433, 435.
This term is commonly opposed to the sum of legal
principles constituting the substance of the law, and de-
notes the body of rules, whether of practice or of pleading,
whereby rights are effectuated through the successful ap-
plication of the proper remedies. It is also generally dis-
tinguished from the law of evidence. Brown; Sackheim v.
Pigueron, 215 N.Y. 62, 109 N.E. 109, 111. Cochran v. Ward,
3 Ind.App. 89, 29 N.E. 795, 31 N.E. 581, 51 Am.St.Rep. 229.
Procedure is the machinery for carrying on the suit,
including pleading, process, evidence, and practice, wheth-
er in the trial court or the appellate court, or in the proc-
esses by which causes are carried to appellate courts for re-
view, or in laying the foundation for such review. Jones
v. Erie R. Co., 106 Ohio St. 408, 140 N.E. 366, 367. It not
only embraces practice in courts, but regulation of the con-
duct of the court itself wherein such practice takes place.
State v. Greenwald, 186 Ind. 321, 116 N.E. 296, 297.
The law of procedure is what is now common-
ly termed by jurists "adjective law," (q. v.).
PROCEDURE ACTS. Three acts of parliament
passed in 1852, 1854, and 1860, for the amendment
of procedure at common law. Moz. & W. They
have been largely superseded by the Judicature
Acts of 1873 and 1875. See Judicature Acts.
PROCEED. To carry on some series of motions
and to set oneself to work and go on in a certain
way and for some particular purpose. Hodson v.
O'Keeffe, 71 Mont. 322, 229 P. 722, 724; To sue.
Brabon v. Gladwin Light & Power Co., 201 Mich.
697, 167 N.W. 1024, 1026; Planters' Bank v. Hous-
er, 57 Ga. 140; Iliff v. Weymouth, 40 Ohio St. 101.
PROCEEDING. In a general sense, the form and
manner of conducting juridical business before a
court or judicial officer; regular and orderly pro-
gress in form of law; including all possible steps
in an action from its commencement to the execu-
tion of judgment. Erwin v. U. S., D.C.Ga., 37 F.
470, 488, 2 L.R.A. 229. Sometimes, merely the rec-
ord history of a case. See Uhe v. Railway Co.,
3 S.D. 563, 54 N.W. 601.
An act which is done by the authority or direction of the
court, express or implied; an act necessary to be done in
order to obtain a given end; a prescribed mode of action
for carrying into effect a legal right. Green v. Board of
Com'rs of Lincoln County, 126 Okl. 300, 259 P. 635, 637;
Marblehead Land Co. v. Superior Court in and for Los
Angeles County, 60 Cal.App. 644, 213 P. 718, 723. All the
steps or measures adopted in the prosecution or defense
of an action. Statter v. United States, C.C.A.Alaska, 66
F.2d 819, 822. The word may be used synonymously with
"action" or "suit" to describe the entire course of an ac-
tion at law or suit in equity from the issuance of the writ
or filing of the bill until the entry of a final judgment, or
may be used to describe any act done by authority of a
court of law and every step required to be taken in any
cause by either party. Gonzales v. Gonzales, 240 Mass. 159,
133 N.E. 855, 856. The proceedings of a suit embrace all
matters that occur in its progress judicially. Morewood v.
Hollister, 6 N.Y. 320. For illustrative cases, see Venator v.
Edwards, 126 Okl. 296, 259 P. 596, 599: Dixie Guano Co. v.
Alpha Process Co., 5 Boyce (Del.) 277, 92 A. 1013, 1014;
State v. Kerr, 117 Me. 254, 103 A. 585, 587. It is a pre-
scribed mode of action for carrying into effect a legal right
W. S. Tyler Co. v. Rebic, 118 Ohio St. 522, 161 N.E. 790,
791.
In a more particular sense, any application to
a court of justice, however made, for aid in the
enforcement of rights, for relief, for redress of
injuries, for damages, or for any remedial object.
See Coca-Cola Co. v. City of Atlanta, 152 Ga. 558,
110 S.E. 730, 732, 23 A.L.R. 1339. People v. Ray-
mond, 186 Ill. 407, 57 N.E. 1066.
The term is properly applicable, in a legal sense, only to
judicial acts before some judicial tribunal. Nelson v.
Dunn, 56 Ind.App. 645, 104 N.E. 45. Lait v. Sears, 226
Mass. 119, 115 N.E. 247, 248.
Collateral proceeding. One in which the par-
ticular question may arise or be involved incident-
ally, but which is not instituted for the very pur-
pose of deciding such question; as in the rule-
that a judgment cannot be attacked, or a corpora-
tion's right to exist be questioned, in any collater-
al proceeding. Peyton v. Peyton, 28 Wash. 278, 68:
P. 757.
Executory proceeding. In the law of Louisiana,.
a proceeding which is resorted to in the following
cases: When the creditor's right arises from an
act importing a confession of judgment, and
which contains a privilege or mortgage in his
favor; or when the creditor demands the execu-
tion of a judgment which has been rendered by a
tribunal different from that within whose juris-
diction the execution is sought. Code Prac. La.
art. 732.
Legal proceedings. See Legal Proceedings..
Ordinary proceedings. Those founded on the
regular and usual mode of carrying on a suit by
due course at common law.
Proceedings in bankruptcy. As used in Bankr.
Act July 1, 1898, c. 541, §§ 23-25, 30 Stat. 552, 553
(11 U.S.C.A. §§ 74-76), this term covers questions
between the alleged bankrupt or the receiver or
trustee on the one hand and the general creditors
as such on the other, commencing with the peti-
tion for adjudication and ending with the dis-
charge, including matters of administration gen-
erally, and is distinguished from "controversies,
at law and in equity arising in the course of
bankruptcy proceedings," which involve questions
between the receiver or trustee, representing the
bankrupt and his general creditors as such, on
the one hand, and adverse claimants, on the oth-
er, concerning property in the possession of the
receiver or trustee or of the claimants, to be liti-
gated in appropriate plenary suits, and not affect-
ing directly administrative orders and judgments,
but only the extent of the estate to be distributed
ultimately among general creditors. In re Breyer
Printing Co., C.C.A.Ill., 216 F. 878, 880.
The phrase "controversy arising in bankruptcy
proceedings" includes those matters arising in
the course of a bankruptcy proceeding which are
not mere steps in the ordinary administration of
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the bankrupt estate, but present distinct and sep-
arable issues between the trustee and adverse
claimants concerning the right and title to the
bankrupt's estate. Gibbons v. Goldsmith, 222 F.
826, 828, 138 C.C.A. 252.
Proceeding in error. One by way of writ of
error. State v. Scott, 34 Wyo. 163, 242 P. 322, 324.
Special proceeding. This phrase has been used
in the New York and other codes of procedure as
a generic term for all civil remedies which are
not ordinary actions. An action is an ordinary
proceeding in a court of justice, by which one
party prosecutes another party for the enforce-
ment or protection of a right, the redress or pre-
vention of a wrong, or the punishment of a public
offence. Every other remedy is a special pro-
ceeding. State v. Rosenwald Bros. Co., 23 N.M.
578, 170 P. 42, 44.
Summary proceeding. Any proceeding by which
a controversy is settled, case disposed of, or trial
conducted, in a prompt and simple manner, with-
out the aid of a jury, without presentment or in-
dictment, or in other respects out of the regular
course of the common law. In procedure, pro-
ceedings are said to be summary 'when they are
short and simple in comparison with regular
proceedings;  e., in comparison with the pro-
ceedings which alone would have been applicable,
either in the same or analogous cases, if summary
proceedings had not been available. Sweet. And
see Phillips v. Phillips, 8 N.J.L. 122.
Supplementary proceeding. A separate proceed-
ing in an original action, in which the court where
the action is pending is called upon to exercise its
jurisdiction in aid of the judgment in the action.
Bryant v. Bank of California, 7 Pac. 128, 130, 2
Cal.Unrep. 475. In a more particular sense, a
proceeding in aid of execution, authorized by stat-
ute in some states in cases where no leviable prop-
erty of the judgment debtor is found. It is a stat-
utory equivalent in actions at law of the crew 1-
tor's bill in equity, and in states where law and
equity are blended, is provided as a substitute
therefor. In this proceeding the judgment debtor
is summoned to appear before the court (or a ref-
eree or examiner) and submit to an oral examina-
tion touching all his property and effects, and if
property subject to execution and in his posses-
sion or control is thus discovered, he is ordered to
deliver it up, or a receiver may be appointed.
Eikerberry v. Edwards, 67 Iowa 619, 25 N.W. 832,
56 Am.Rep. 360.
PROCEEDS. Issues; income; yield; receipts;
produce; money or articles or other thing of value
arising or obtained by the sale of property; the
sum, amount, or value of property sold or con-
verted into money or into other property. Whar-
ton; Blackford v. Boak, 73 Or. 61, 143 P. 1136,
1137. Thus, goods purchased with money arising
from the sale of other goods, or obtained on their
credit, are proceeds of such goods. 2 Pars.Marit.
L. 201; Bened.Adm. 290. Proceeds does not nec-
essarily mean cash or money. Phelps v. Harris,
25 L.Ed. 855, 101 U.S. 380.
The word when applied to the income to be derived from
real estate embraces the idea of issues, rents, profits, or
produce. Gorin Sa y . Bank v. Early, Mo.App., 260 S.W.
480, 483. It is synonymous with avails, use, and profits.
In re Coughlin's Estate, 53 N.D. 188, 205 N.W. 14, 16.
PROCERES. Nobles; lords. The house of lords
in England is called, in Latin, "Domus Procerum."
Formerly, the chief magistrates in cities. St.
Armand, Hist. Eq. 88.
PROCÉS-VERBAL. In French law. A true rela-
tion in writing in due form of law, of what has
been done and said verbally in the presence of a
public officer, and what he himself does upon the
occasion. It is a species of inquisition of office,
and must be signed by the officer. Dalloz, Dict.;
Hall v. Hall, 11 Tex. 526, 539.
A written report, which is signed, setting forth
a statement of facts. This term is applied to the
report proving the meeting and the resolutions
passed at a meeting of shareholders, or to the
report of a commission to take testimony. It can
also be applied to the statement drawn up by a
huissier in relation to any facts which one of the
parties to a suit can be interested in proving; for
instance the sale of a counterfeited object. State-
ments, drawn up by other competent authorities,
of misdemeanors or other criminal acts, are also
called by this name. Arg. Fr. Merc. Law, 570.
PROCESS. A series of actions, motions, or oc-
currences; progressive act or transaction; con-
tinuous operation; method, mode or operation,
whereby a result or effect is produced; normal or
actual course of procedure; regular proceeding,
as, the process of vegetation or decomposition; a
chemical process; processes of nature. Sokol v.
Stein Fur Dyeing Co., 216 App.Div. 573, 216 N.Y.S.
167, 169; Kelley v. Coe, App.D.C., 99 F.2d 435, 441.
Patent Law
An art or method by which any particular result
is produced. An act or series of acts performed
upon the subject-matter to be transformed or
reduced to a different state or thing. American
Graphophone Co. v. Gimbel Bros. (D.C.) 234 F.
361, 368; Nestle Patent Holding Co. v. E. Fred-
erics, Inc. (C.C.A.) 261 F. 780, 783. A means or
method employed to produce a certain result or
effect, or a mode of treatment of given materials
to produce a desired result, either by chemical
action, by the operation or application of some
element or power of nature, or of one substance
to another, irrespective of any machine or me-
chanical device; in this sense a "process" is pat-
enthble, though, strictly speaking, it is the art
and not the process which is the subject of pat-
ent. Rohm v. Martin Dennis Co., D.C.N.J., 263 F.
106, 107.
Broadly speaking, a "process" is a definite combination
of new or old elements, ingredients, operations, ways, 'or
means to produce a new, improved or old result, and any
substantial change therein by omission, to the same or
better result, or by modification or substitution, with dif-
ferent function, to the same or better result, is a new and
patentable process.  Minerals Separation v. Hyde, D.C.
Mont., 207 F. 956, 960.
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Mechanical process. A process involving solely
the application of mechanism or mechanical prin-
ciples; an aggregation of functions; not patent.
able considered apart from the mechanism em-
ployed or the finished product of manufacture.
Risdon Iron, etc., Works v. Medart, 15 S.Ct. 745,
158 U.S. 68, 39 L.Ed. 899; Cochrane v. Deener, 94
U.S. 780, 24 L.Ed. 139.
Practice
This word is generally defined to be the means
of compelling the defendant in an action to appear
in court; Gondas v. Gondas, 99 N.J.Eq. 473, 134
A. 615, 618; or a means whereby a court compels
a compliance with its demands. Frank Adam
Electric Co. v. Witman, 16 Ga.App. 574, 85 S.E.
819, 820. Stevens v. Associated Mortg. Co. of New
Jersey, 107 N.J.Eq. 297, 152 A. 461, 462. And
when actions were commenced by original writ,
instead of, as at present, by writ of summons, the
method of compelling the defendant to appear was
by what was termed "original process," being
founded on the original writ, and so called also
to distinguish it from "mesne" or "intermediate"
process, which was some writ or process which
issued during the progress of the suit. The word
"process," however, as now commonly understood,
signifies those formal instruments called "writs."
The word "process" is in common-law practice
frequently applied to the writ of summons, which
is the instrument now in use for commencing
personal actions. Farmers' Implement Co. of Hal-
lock, Minn., v. Sandberg, 132 Minn. 389, 157 N.W.
642. But in its more comprehensive signification
it includes not only the writ of summons, but all
other writs which may be issued during the pro-
gress of an action. Those writs which are used
to carry the judgments of the courts into effect,
and which are termed "writs of execution" are
also commonly denominated "final process," be-
cause they usually issue at the end of a suit.
Anderson v. Dewey, 91 Conn. 510, 100 A. 99, 100.
A writ, summons, or order issued in a judicial proceed-
ing to acquire jurisdiction of a person or his property, to
expedite the cause or enforce the judgment. Royal Ex-
change Assurance of London v. Bennettsville & C. R. Co.,
95 S.C. 375, 79 S.E. 104, 105. A writ or summons issued in
the course of judicial proceedings. Radovich v. French, 36
Nev. 341, 135 P. 920, 921. The term in statutes may be
used with the meaning of procedure. Safford v. United
States, C.C.A.N.Y., 252 F. 471, 472.
In the practice of the English privy council in
ecclesiastical appeals, "process" means an official
copy of the whole proceedings and proofs of the
court below, which is transmitted to the registry
of the court of appeal by the registrar of the court
below in obedience to an order or requisition re-
quiring him so to do, called a "monition for pro-
cess," issued by the court of appeal. Macph. Jud.
Com. 173.
Abuse of process. See Abuse.
Compulsory process. See Compulsory,
Executory process. In the law of Louisiana, a
summary process in the nature of an order of
seizure and sale, which is available when the right
of the creditor arises from an act or instrument
which includes or imports a confession of judg-
ment and a privilege or lien in his favor, and also
to enforce the execution of a judgment rendered
in another jurisdiction. Code Prac. art. 732.
Final process. The last process in a suit; that
is, writs of execution. Thus distinguished from
mesne process, which includes all writs issued
during the progress of a cause and before final
judgment. Collier v. Blake, 16 Ga.App. 382, 85
S.E. 354. A distress warrant is final process, un-
less arrested by the interposition of a counter
affidavit. Long v. Clark, 16 Ga.App. 355, 85 S.E.
358.
Irregular process. Sometimes defined to mean
process absolutely void, and not merely errone-
ous and voidable; but that term is usually applied
to all process not issued in strict conformity with
the law, whether the defect appears upon the face
of the process, or by reference to extrinsic facts,
and whether such defects render the process ab-
solutely void or only voidable. And see Bryan v.
Congdon, 86 F. 221, 29 C.C.A. 670.
Judicial process. In a wide sense, this term
may include all the acts of a court from the begin-
ning to the end of its proceedings in a given
cause; but more specifically it means the writ,
summons, mandate, or other process which is us-
ed to inform the defendant of the institution of
proceedings against him and to compel 'his ap-
pearance, in either civil or criminal cases. Blair
v. Maxbass Security Bank of Maxbass, 44 N.D.
12, 176 N.W. 98, 100; In re Smith & Shuck, D.C.
Iowa, 132 F. 301, 303.
Legal process. This term is sometimes used as
equivalent to "lawful process." Cooley v. Davis,
34 Iowa 130. Thus, it is said that legal process
means process not merely fair on its face, but in
fact valid. State v. Wagoner, 123 Kan. 586, 256
P. 959, 960. But properly it means a writ, war-
rant, mandate, or other process issuing from a
court of justice, such as an attachment, execu-
tion, injunction, etc. Grossman v. Weiss, 221 N.
Y.S. 266, 267, 129 Misc. 234.
Mesne . process. As distinguished from final
process, this signifies any writ or process issued
between the commencement of the action and the
suing out of execution. 3 Bla.Comm. 279. This
is substantially the meaning of the term as used
in admiralty rule 1 (29 S.Ct. xxxix; 28 U.S.C.A. §§
2071, 2073), providing that no mesne process shall
issue until the libel shall be filed in the clerk's
office. The City of Philadelphia, D.C.Pa., 263 F.
234, 235. "Mesne" in this connection may be de-
fined as intermediate; intervening; the middle
between two extremes. L. N. Dantzler Lumber
Co. v. Texas & P. Ry. Co., 119 Miss. 328, 80 So.
770, 775, 49 A.L.R. 1669. Mesne process includes
the writ of summons, (although that is now the
usual commencement of actions,) because ancient-
ly that was preceded by the original writ. The
writ of capias ad respondendum was called
"mesne" to distinguish it, on the one hand, from
the original process by which a suit was formerly
commenced; and, on the other, from the final
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process of execution. Birmingham Dry Goods
Co. v. Bledsoe, 21 So. 403, 113 Ala. 418.
Original process. That by which a judicial
proceeding is instituted; process to compel the
appearance of the defendant. Distinguished from
"mesne" process, which issues, during the prog-
ress of a suit, for some subordinate or collateral
purpose; and from "final" process, which is
process of execution. Appeal of Hotchkiss, 32
Conn. 353.
Process of interpleader. A means of determin-
ing the right to property claimed by each of two
or more persons, which is in the possession of a
third.
Process of law. See Due Process of Law.
Process roll. In practice. A roll used for the
entry of process to save the statute of limitations.
1 Tidd, Pr. 161, 162.
Regular process. Such as is issued according
to rule and the prescribed practice, or which eman-
ates, lawfully and in a proper case, from a court
or magistrate possessing jurisdiction.
Summary process. Such as is immediate or
instantaneous, in distinction from the ordinary
course, by emanating and taking effect without
intermediate applications or delays. Gaines v.
Travis, 8 N.Y.Leg.Obs. 49.
Trustee process. The name given in some
states (particularly in New England) to the proc-
ess of garnishment or foreign attachment.
Void process. Such as was issued without pow-
er in the court to award it, or which the court
had not acquired jurisdiction to issue in the par-
ticular case, or which fails in some material re-
spect to comply with the requisite form of legal
process. Bryan v. Congdon, C.C.A.Kan., 86 F.
221, 223, 29 C.C.A. 670.
PROCESSION. To beat the bounds of (a par-
ish, lands, etc.). Webster's New Int. Dict. In
some of the North American colonies (and still in
the states of North Carolina and Tennessee), to
make a procession around a piece of land in or-
der formally to determine its bounds. Murray's
New English Dict.
The ceremony of perambulating the boundaries of a
parish ("processioning," as it was commonly called in
later times) is an extremely old one. Blomfield, Hist.
Fritwell, quoted in Murray's New English Dict. s. v.
"Processioning" (q. v.).
PROCESSIONING. A survey and inspection of
boundaries periodically performed in some of the
American colonies by the local authorities. It
was analogous in part to the English perambula-
tion (q. v.), and was superseded by the introduc-
tion of the practice of accurate surveying and of
recording. The term is still used of some official
surveys in North Carolina and Tennessee. Cent.
Dict. See Code Tenn.1858, § 2020 et seq.; Rhodes
v. Ange, 173 N.C. 25, 91 S.E. 356.
PROCESUM CONTINUANDO. In English prac-
tice. A writ for the continuance of process after
the death of the chief justice or other justices
in the commission of oyer and terminer. Reg.
Orig. 128.
PROCESSUS LEGIS EST GRAVIS VEXATIO;
EXECUTIO LEGIS CORONAT OPUS. The proc-
ess of the law is a grievous vexation; the execu-
tion of the law crowns the work. Co.Litt. .289b.
The proceedings in an action while in progress are
burdensome and vexatious; the execution, being
the end and object of the action, crowns the labor,
or rewards it with success.
PROCHEIN. L. Fr. Next. A term somewhat
used in modern law, and more frequently in the
old law; as prochein ami, prochein cousin. Co.
Litt. 10.
PROCHEIN AMI. (Spelled, also, prochein amy
and prochein amy.) Next friend. As an infant
cannot legally sue in his own name, the action
must be brought by his prochein ami; that is,
some friend (not being his guardian) who will
appear as plaintiff in his name.
PROCHEIN AVOIDANCE. Next vacancy. A
power to appoint a minister to a church when it
shall next become void.
PROCHRONISM: An error in chronology, con-
sisting in dating a thing before it happened.
PROCINCTUS. Lat. In the Roman law. A gird-
ing or_preparing for battle. Testamentum in pro-
cinctu, a will made by a soldier, while girding
himself, or preparing to engage in battle. Ad-
ams, Rom.Ant. 62; Calvin.
PROCLAIM. To promulgate; to announce; to
publish, by governmental authority, intelligence
of public acts or transactions or other matters
important to be known by the people. To give
wide publicity to; to disclose. Simon v. Moore,
D.C.Mo., 261 F. 638, 643.
PROCLAMATION. The act of proclaiming or
publishing; a formal declaration; an avowal.
Dickinson v. Page, 120 Ark. 377, 179 S.W. 1004,
1006; State v. Oregon-Washington R. & Na y . Co.,
128 Wash. 365, 223 P. 600, 608. The act of causing
some state matters to be published or made gen-
erally known. A written or printed document in
which are contained such matters, issued by prop-
er authority. 3 Inst. 162; 1 Bl.Comm. 170.
Also, the public nomination made of any one
to a high office; as, such a prince was proclaimed
emperor.
In practice. The declaration made by the crier,
by authority of the court, that something is about
to be done.
It usually commences with the French word Oyez, do you
hear, hear ye, in order to attract attention; it is particu-
larly used on the opening of the court, and at its adjourn-
ment; it is also frequently employed to discharge persons
who have been accused of crimes or misdemeanors.
In equity practice. Proclamation made by a
sheriff upon a writ of attachment, summoning a
•
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PROCLAMATION
defendant who has failed to appear personally to
appear and answer the plaintiff's bill. 3 Bl.Comm.
444.
PROCLAMATION BY LORD OF MANOR. A
proclamation made by the lord of a manor (thrice
repeated) requiring the heir or devisee of a de-
ceased copyholder to present himself, pay the fine,
and be admitted to the estate; failing which ap-
pearance, the lord might seize the lands quousque
(provisionally.)
PROCLAMATION OF A FINE. The notice or
proclamation which was made after the engross-
ment of a fine of lands, and which consisted in
its being openly read in court sixteen times, viz.,
four times in the term in which it was made, and
four times , in each of the three succeeding terms,
which, however, was afterwards reduced to one
reading in each term. Cowell. See 2 Bl.Comm.
352.
PROCLAMATION OF EXIGENTS. In old Eng-
lish law. When an exigent was awarded, a writ
of proclamation issued, at the same time, com-
manding the sheriff of the county wherein the
defendant dwelt to make three proclamations
thereof in places the most notorious, and most
likely to come to his knowledge, a month before
the outlawry should take place. 3 Bl.Comm. 284.
PROCLAMATION OF REBELLION. In old Eng-
lis law. A proclamation to be made by the sher-
iff commanding the attendance of a person who
had neglected to obey a subpoena or attachment
in chancery. If he did not surrender himself aft-
er this proclamation, a commission of rebellion
issued. 3 Bl.Comm. 444.
PROCLAMATION OF RECUSANTS. A procla-
mation whereby recusants were formerly con-
victed, on non-appearance at the assizes. Jacob.
PROCLAMATOR. An officer of the English
court of common pleas.
PRO—CONSUL. Lat. In the Roman law. Orig-
inally a consul whose command was prolonged
after his office had expired. An officer with con-
sular authority, but without the title of "consul."
The governor of a province. Calvin.
PROCREATION. The generation of children. It
is said to be one of the principal ends of marri-
age. Inst. tit. 2, in pr.
PROCTOR. One appointed to manage the af-
fairs of another or represent him in judgment.
A procurator, proxy, or attorney. More particu-
larly, an officer of the admiralty and ecclesiastical
courts whose duties and business correspond ex-
actly to those of an attorney at law or solicitor in
chancery.
A proctor, strictly speaking, conducts the proceeding out
of court, as an English solicitor does in common-law
courts; while the advocate conducts those in court. But
in this country the distinction is not observed. The fees
of proctors are fixed by statute (see 28 U.S.C.A. § 1923).
An ecclesiastical person sent to the lower house
of convocation as the representative of a cathe-
dral, a collegiate church, or the clergy of a dio-
cese. Also certain administrative or magisterial
officers in the universities.
PROCTORS OF THE CLERGY. They who are
chosen and appointed to appear for cathedral or
other collegiate churches; as also for the common
clergy of every diocese, to sit in the convocation
house in the time of parliament. Wharton.
PROCURACY. The writing or instrument which
authorizes a procurator to act. Cowell; Termes
de la Ley.
PROCURADOR DEL COMUN. Sp. In Spanish
law, an officer appointed to make inquiry, put a
petitioner in possession of land prayed for, and
execute the orders of the executive in that behalf.
Lecompte v. U. S., 11 How. 115, 126, 13 L.Ed. 627.
PROCURARE. Lat. To take care of another's
affairs for him, or in his behalf; to manage; to
take care of or superintend.
PROCURATIO. Lat. Management of another's
affairs by his direction and in his behalf; procur-
ation; agency.
PROCURATIO EST EXHEBITIO SUMPTUUM
NECESSARIORUM FACTA PRIELATES, QUI
DIOCESES PERAGRANDO, ECCLESIAS SUB-
JECTAS VISITANT. Da y . Ir. K. B. 1. Procura-
tion is the providing necessaries for the bishops,
who, in traveling through their dioceses, visit the
churches subject to them.
PROCURATION. Agency; proxy; the act of
constituting another one's attorney in fact. The
act by which one person gives power to another
to act in his place, as he could do himself. Clinton
v. Hibb's Ex'x, 259 S.W. 356, 358, 202 Ky. 304, 35 A.
L.R. 462. Action under a power of attorney or
other constitution of agency. Indorsing a bill or
note "by procuration" is doing it as proxy for an-
other or by his authority. The use of the word
procuration (usually, per procuratione, or abbrev-
iated to per pros. or p. p.) on a promissory note
by an agent is notice that the agent has but a
limited authority to sign. Neg.Instr.Act. § 21.
An express procuration is one made by the ex-
press consent of the parties. An implied or tacit
procuration takes place when an individual sees
another managing his affairs and does not inter-
fere to prevent it. Dig. 17, 1, 6, 2; 50, 17, 60;
Code 7, 32, 2. Procurations are also divided into-
those which contain absolute power, or a general
authority, and those which give only a limited
power. Dig. 3, 3, 58; 17, 1, 60, 4.
Also, the act or offence of procuring women for
lewd purposes. Odgers, C.L. 214.
In ecclesiastical law. In the plural, the term
denotes certain sums of money which parish
priests pay yearly to the bishops or archdeacons,
ratione visitationis. Dig. 3, 39, 25; Ayliffe,
Parerg. 429; 17 Viner, Abr. 544.
PROCURATION FEE, or MONEY. In English.
law. Brokerage or commission allowed to scriv-
eners and solicitors for obtaining loans of money.
4 Bl.Comm. 157.
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PROCUREUR
PROCURATIONEM ADVERSUS NULLA EST
PRZESCRIPTIO. Da y . Ir. K. B. 6. There is no
prescription against procuration.
PROCURATOR. In the civil law. A proctor; a
person who acts for another by virtue of a pro-
curation. Dig. 3, 3, 1.
In old English law. An agent or attorney; a
bailiff or servant. A proxy of a lord in parliament.
In ecclesiastical law. One who collected the
fruits of a benefice for another. An advocate of
a religious house, who was to solicit the interest
and plead the causes of the society. A proxy or
representative of a parish church.
PROCURATOR FISCAL. In Scotch law, this is
the title of the public prosecutor for each district,
who institutes the preliminary inquiry into crime
within his district. The office is analogous, in
some respect, to that of "prosecuting attorney,"
"district attorney," or "state's attorney" in Amer-
ica.
PROCURATOR IN REM SUAM. Proctor (attor-
ney) in his own affair, or with reference to his
own property. This term is used in Scotch law to
denote that a person is acting under a procura-
tion (power of attorney) with reference to a thing
which has become his own property. Ersk.Inst.
3, 5, 2.
PROCURATOR LITIS. In the civil law. One
who by command of another institutes and carries
on for him a suit. Vicat, Voc.Jur. Procurator is
properly used of the attorney of actor (the plain-
tiff), defensor of the attorney of reus (the de-
fendant). It is distinguished from advocatus,
who was one who undertook the defence of per-
sons, not things, and who was generally the pa-
tron of the person whose defence he prepared, the
person himself speaking it. It is also distinguish-
ed from cognitor who conducted the cause in the
presence of his principal, and generally in cases
of citizenship; whereas the procurator conducted
the cause in the absence of his principal. Calvin-
us, Lex.
PROCURATOR NEGOTIORUM. In the civil law.
An attorney in fact; a manager of business af-
fairs for another person.
PROCURATOR PROVINCL ZE. In Roman law.
A provincial officer who managed the affairs of
the revenue, and had a judicial power in matters
that concerned the revenue. Adams, Rom.Ant.
178.
PROCURATORES ECCLESL PAROCHIALIS.
The old name for church-wardens. Paroch.Antiq.
562.
PROCURATORIUM. In old English law. The
procuratory or instrument by which any person
or community constituted or delegated their pro-
curator or proctors to represent them in any ju-
dicial court or cause. Cowell.
PROCURATORY OF RESIGNATION. In Scotch
law. A form of proceeding by which a vassal
authorizes the feu to be returned to his superior.
Bell. It is analogous to the surrender of copyholds
in England.
PROCURATRIX. In old English law. A female
agent or attorney in fact. Fleta, lib. 3, c. 4, § 4.
PROCURE. To initiate a proceeding; to cause a
thing to be done; to instigate; to contrive, bring
about, effect, or cause. Marcus v. Bernstein, 117
N.C. 31, 23 S.E. 38. Rosenbarger v. State, 154 Ind.
425, 56 N.E. 914. To persuade, induce, prevail up-
on, or cause. Hines v. State, 16 Ga.App. 411, 85
S.E. 452, 454. To obtain, as intoxicating liquor,
for another. State v. Desmarais, 81 N.H. 199, 123
A. 582, 583. Compare, however, People v. Rob-
ertson, 284 Ill. 620, 120 N.E. 539, 541. To find or
introduce;—said of a broker who obtains a cus-
tomer. Low v. Paddock, Mo.App., 220 S.W. 969,.
972. To bring the seller and the buyer together
so that the seller has an opportunity to sell.
Fritsch v. Hess, 162 P. 70, 71, 49 Utah, 75. See,
also, Miller v. Eldridge, Tex.Civ.App., 286 S.W.
999, 1000.
To "procure" an act to be done is not synonymous with,
to "suffer" it to be done. 2 Ben. 196.
PROCURER. One who procures for another the
gratification of his lusts; a pimp; a panderer;
one who solicits trade for a prostitute or lewd wo-
man. State v. Smith, 149 La. 700, 90 So. 28, 30.
One that procures the seduction or prostitution of
girls. The offense is punishable by statute in
England and America. One who uses means to
bring anything about, especially one who does so
secretly and corruptly. U. S. v. Richmond, C.C.A.
Pa., 17 F.2d 28, 30.
PROCUREUR. In French law. An attorney;
one who has received a commission from another
to act on his behalf. There were in France two
classes of procureurs: Procureurs ad negotia,
appointed by an individual to act for him in the
administration of his affairs; persons invested
with a power of attorney; corresponding to "at-
torneys in fact." Procureurs ad lites were per-
sons appointed and authorized to act for a party
in a court of justice. These corresponded to at-
torneys at law, (now called, in England, "solici-
tors of the supreme court.") The order of pro-
cureurs was abolished in 1791, and that of avous.
established in their place. Mozley & Whitley.
PROCUREUR DE LA REPUBLIQUE. (Former-
ly procureur du roi.) In French law. A public
prosecutor, with whom rests the initiation of all
criminal proceedings. In the exercise of his of-
fice (which appears to include the apprehension of
offenders) he is entitled to call to his assistance
the public force, (posse comitatus;) and the of-
ficefs of police are auxiliary to him.
PROCUREUR GENERAL, or IMPERIAL. In
French law. An officer of the imperial court, who
either personally or by his deputy prosecuted
every one who was accused of a crime according
to the forms of French law. His functions were
apparently confined to preparing the case for trial
at the assizes, assisting in that trial, demanding
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the sentence in case of a conviction, and being
present at the delivery of the sentence. He had
a general superintendence over the officers of po-
lice and of the juges d'instruction, and he requir-
ed from the procureur du roi a general report
once in every three months. Brown.
PROCURING CAUSE. The approximate cause;
the cause originating a series of events, which,
without break in their continuity, result in the ac-
complishment of the prime object. Averill v.
Hart & O'Farrell, 101 W.Va. 411, 132 S.E. 870,
875; The inducing cause. Moseley-Comstock Real-
ty Co. v. McClelland, Mo.App., 294 S.W. 103, 106.
The direct or proximate cause. Custer v. Thax-
ton, Tex.Civ.App., 287 S.W. 528, 529. Substantial-
ly synonymous with "ef ficient cause." Bagley v.
Foley, 82 Wash. 222, 144 P. 25.
A broker will be regarded as the "procuring
cause" of a sale, so as to be entitled to commis-
sion, if his efforts are the foundation on which
the negotiations resulting in a sale are begun.
Cales v. Pattison, 189 Okl. 160, 114 P.2d 457, 458.
PRODES HOMINES. A term said by Tomlins to
be frequently applied in the ancient books to the
barons of the realm, particularly as constituting a,council or administration or government. It is
probably a corruption of "probi homines."
PRODIGAL. In civil law. A person who, though
of full age, is incapable of managing his affairs,
and of the obligations which attend them, in con-
sequence of his bad conduct, and for whom a cur-
ator is therefore appointed. See Prodigus.
According to the Code Napoleon, a French subject of
full age, who is of extravagant habits, when adjudged to
be a "prodigal," is restrained from dealing with his mov-
ables without the consent of a legal adviser.
PRODIGUS. Lat. In Roman law. A prodigal;
a spendthrift; a person whose extravagant habits
manifested an inability to administer his own af-
fairs, and for whom a guardian might therefore
be appointed.
PRODITION. Treason; treachery.
PRODITOR. A traitor.
PRODITORIE. Treasonably. This is a technical
word formerly used in indictments for treason,
when they were written in Latin. Tomlins.
PRODUCE, n. The product of natural growth,
labor, or capital. Articles produced or grown
from or on the soil, or found in the soil. New
hoff Packing Co. v. Sharpe, 240 S.W. 1101, 1103,
146 Tenn. 293.
The produce of a farm has been held not to include beef
raised and killed thereon. Philadelphia v. Davis, 6 Watts
& S. (Pa.) 269. But See City of Higbee v. Burgin, 197 Mo.
App. 682, 201 S. W. 558.
PRODUCE, v. To bring forward; to show or ex-
hibit; to bring into view or notice; as, to present
a play, including its presentation in motion pic-
tures. Manners v. Morosco, D.C.N.Y., 254 F. 737,
'740; to present testimony, In re McGuire's Will,
220 N.Y.S. 773, 776, 128 Misc. 679; to produce
books or writings at a trial in obedience to a sub-
pcena duces tecum.
To produce, for the purpose of use in a legal hearing,
within the meaning of a subpoena ordering a witness to
produce a public record, means more than an appearance
with the document in his possession, and implies the hand-
ing of it to the tribunal for perusal, and, if that is not
asked, the reading aloud of it by witness or counsel.
Langley v. F. W. Woolworth Co., 46 R.I. 394, 129 A. 1, 2.
To make, originate, or yield, as gasoline. Gay
OH Co. v. State, 170 Ark. 587, 280 S.W. 632, 634.
To bring to the surface, as oil. Tedrow v. Shaffer,
23 Ohio App. 343, 155 N.E. 510, 511.
To yield, as revenue. Thus, sums are "produc-
ed" by taxation, not when the tax is levied, but
when the sums are collected. Board of Education
of Louisville v. Sea, 167 Ky. 772, 181 S.W. 670, 673.
PRODUCE BROKER. A person whose occupa-
tion it is to buy or sell agricultural or farm prod-
ucts. U. S. v. Simons, 1 Abb. (U.S.) 470, Fed.Cas.
No.16,291.
PRODUCENT. The party calling a witness un-
der the old system of the English ecclesiastical
courts.
PRODUCER. One who produces, brings, forth,
or generates. Boland v. Cecil, 150 P.2d 819, 822,
65 Cal.App.2d Supp. 832.
PRODUCING. Bring about, to cause to happen
or take place, as an effect or result. Strong v.
Aetna Casualty & Surety Co., Tex.Civ.App., 170
S.W.2d 786, 788.
PRODUCING CAUSE. Respecting broker's com-
mission, is act which, continuing in unbroken
chain of cause and effect, produces result. Sche-
besta v. Stewart, Tex.Civ.App., 37 S.W.2d 781, 786.
A "producing cause" of an employee's death for which
compensation is sought is that cause which, in a natural
and continuous sequence, produces the death, and without
which death would not have occurred. Jones v. Traders &
General Ins. Co., 140 Tex. 599, 169 S.W.2d 160, 162.
PRODUCT. With reference to property, proceeds;
yield; income; receipts; return. Gibbs v. Bark-
ley, Tex.Com.App., 242 S.W. 462, 465.
The "products" of a farm may include the increase of
cattle on the premises. Case v. Ploutz, 154 N.Y.S. 914,
915, 90 Misc. 568.
PRODUCTIO SECTLE. In old English law. Pro-
duction of suit; the production by a plaintiff of
his secta or witnesses to prove the allegations of
his count. 3 Bl.Comm. 295.
PRODUCTION. That which is produced or made
product; fruit of labor; as the productions of the
earth, comprehending all vegetables and fruits;
the productions of intellect, or genius, as poems
and prose compositions; the productions of art,
as manufactures of every kind. Dano v. R. Co., 27
Ark. 567.
In political economy. The creation of objects which
constitute wealth. The requisites of production are labor,
capital, and the materials and motive forces afforded by
nature. Of these, labor and the raw material of the
globe are primary and indispensable. Natural motive pow-
ers may be called in to the assistance of labor, and are
a help, but not an essential, of production. The remaining
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PROFESSIONAL
requisite, capital, is itself the product of labor. Its in-
strumentality in production is therefore, in reality, that of
labor in an indirect shape. Mill, Pol. Econ. ; Wharton.
PRODUCTION FOR COMMERCE. Within Fair
Labor Standards Act includes production of goods
which, at time of production, employer, according
to normal course of his business, intends or ex-
pects to move in interstate commerce immediately
following initial sale. Fair Labor Standards Act
of 1938, §§ 6, 7, 29 U.S.C.A. §§ 206, 207. Hill v.
Jones, D.C.Ky., 59 F.Supp. 569, 572.
PRODUCTION OF SUIT. In pleading. The for-
mula, "and therefore [or thereupon] he brings his
suit," etc., with which declarations always con-
clude. Steph.P1. 428, 429. In old pleading, this
referred to the production by the plaintiff of his
secta or suit, i. e. persons prepared to confirm
what he had stated in the declaration. The
phrase has remained; but the practice from
which it arose is obsolete. 3 Bla.Comm. 295.
PROFANE. Irreverent toward God or holy
things; written or spoken; acting or acted, in
manifest or implied contempt of sacred things.
Town of Torrington v. Taylor, 59 Wyo. 109, 137
P.2d 621, 624; Duncan v. U. S., C.C.A.Or., 48 F.2d
128, 133. That which has not been consecrated.
Dig. 11, 7, 2, 4.
PROFANE PLACE. A place which is neither sac-
red nor sanctified nor religious. Dig. 11, 7, 2, 4,
PROFANELY. In a profane manner. In Penn-
sylvania, a technical word in indictments for the
statutory offense of profanity. Updegraph v.
Corn., 11 Serg. & R. (Pa.) 394.
PROFANITY. Irreverence towards sacred things;
particularly, an irreverent or blasphernous use of
the name of God; punishable by statute in some
jurisdictions. Orf v. State, 147 Miss. 160, 113 So.
202. Cason v. Baskin, 155 Fla. 198, 20 So.2d 243,
247, 168 A.L.R. 430.
PROFECTITIUS. Lat. In the civil law. That
which descends to us from our ascendants. Dig.
23, 3, 5.
PROFER. In old English law. An offer or prof-
fer; an offer or endeavor to proceed in an action,
by any man concerned to do so. A return made
by a sheriff of his accounts into the exchequer;
a payment made on such return. Cowell.
PROFERT IN CURIA. L. Lat: (Sometimes writ-
ten profert in curiam.) He produces in' court.
In old practice, these words were inserted in a
declaration, as an allegation that the plaintiff was
ready to produce, or did actually produce, in
court, the deed or other written instrument on
which his suit was founded, in order that the
court might inspect the same and the defendant
hear it read. The same formula was used where
the defendant pleaded a written instrument.
In modern practice. An allegation formally
made in a pleading, where a party alleges a deed,
that he shows it in court, it being in fact retained
in his own custody. Steph.P1. 67. But by virtue of
the allegation, the deed is then constructively in
possession of the court. 6 M. & G. 277; Tucker v.
State, 11 Md. 322; Germain v. Wilgus, 67 F. 597,
14 C.C.A. 561. The profert of any recorded in-
strument, as letters patent, is equivalent to an-
nexing a copy. American Bell Tel. Co. v. South-
ern Tel. Co., C.C.Ark., 34 F. 803. This result
does not occur, however, in the case of other doc-
uments, such as a note. Waterhouse v. Sterchi
Br os. Furniture Co., 139 Tenn. 117, 201 S.W. 150,
151.
Profert and oyer are abolished in England by the Com-
mon Law Procedure Act, 15 & 16 Viet. c. 76; and a pro-
vision exists, 14 & 15 Vict. c. 99, for allowing inspection
of all documents in the possession or under the control of
the party against whom the inspection is asked. 25 E. L.
& E. 304. In many of the states profert has been abolished,
and in some instances the instrument must be set forth in
the pleading of the party relying upon it.
PROFESS. To make open declaration of, to make
public declaration or avowal. Wristen v. Wris-
ten, Tex.Civ.App., 119 S.W.2d 1104, 1106.
PROFESSION. A public declaration respecting
something. Cod. 10, 41, 6.
A vocation, calling, occupation or employment
involving labor, skill, education, special knowledge
and compensation or profit, but the labor and skill
involved is predominantly mental or intellectual,
rather than physical or manual. Maryland Cas-
ualty Co. v. Crazy Water Co., Tex.Civ.App., 160
S.W.2d 102, 104. The method or means pursued
by persons of technical or scientific training.
Board of Sup'rs of Amherst County v. Boaz, 176
Va. 126, 10 S.E.2d 498, 499.
The term originally contemplated only theology, law,
and medicine, but as applications of science and learning
are extended to other departments of affairs, other voca-
tions also receive the name, which implies professed attain-
ments in special knowledge as distinguished from mere
skill. Aulen v. Triumph Explosive, D.C.Md., 58 F.Supp. 4,
8.
In ecclesiastical law. The act of entering into
a religious order. See 17 Vin.Abr. 545.
PROFESSIONAL. A term applied in the Immi-
gration Law, 8 U.S.C.A. § 137c, to an alien instru-
mental musician who is of distinguished merit and
ability or is a member of a musical organization of
distinguished merit and is applying for admis-
sion as such. It is opposed to amateur, and as
used in the statute refers to one who pursues an
art and makes his living therefrom. U. S. ex rel.
Liebmann v. Flynn, D.C.N.Y., 16 F.2d 1006, 1007;
U. S. v. Commissioner of Immigration at Port ofNew York, C.C.A.N.Y., 298 F. 449, 450.
PROFESSIONAL EMPLOYMENT. Within the
meaning of a statute authorizing actions for mis-
conduct or neglect, professional services by an at-
torney are not limited to litigation, but include
giving advice, managing a business, devising
plans, and making collections, and the employ-
ment may be recognized as professional, although
including services not ordinarily classed as pro-
fessional services; whether the attorney is pro-
fessionally employed depending on the relations
and mutual understanding of what was said and
done, and on all the facts and circumstances of
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the particular undertaking. Case v. Ranney, 174
Mich. 673, 140 N.W. 943, 946.
PROFESSOR. Public teacher of any science or
branch of learning. U. S. ex rel. Jacovides v.
Day, C.C.A.N.Y., 32 F.2d 542, 543.
PROFICUA. L. Lat. In old English law. Profits;
especially the "issues and profits" of an estate in
land. Co.Litt. 142.
PROFILE. In civil engineering, a drawing rep-
resenting the elevation of the various points on
the plan of a road, or the like, above some fixed
elevation. Pub.St.Mass.1882, p. 1294. A side or
sectional elevation, or a drawing showing a verti-
cal section of the ground along a surveyed line
or graded work. Also, an outline or contour.
Taggart v. Great Northern Ry. Co., D.C.Wash.,
208 F. 455, 456. As used in Act March 3, 1875, c.
152, § 1, 18 St. 482 (43 U.S.C.A. § 934), granting
rights of way through the public lands to rail-
roads, the term, in view of regulations of the gen-
eral land office, may be deemed to mean a map of
alignment or of definite location. Taggart v.
Great Northern Ry. Co., C.C.A.Wash., 211 F. 288,
292.
PROFIT. The advance in the price of goods sold
beyond the cost of purchase. The gain made by
the sale of produce or manufactures, after de-
ducting the value of the labor, materials, rents,
and all expenses, together with the interest of
the capital employed. Webster. Lapham v. Tax
Com'r, 244 Mass. 40, 138 N.E. 708, 710; McCready
v. Bullis, 59 Cal.App. 286, 210 P. 638, 640. Gain
realized from business or investment over and
above expenditures. Citizens Nat. Bank v. Corl,
225 N.C. 96, 33 S.E.2d 613, 616. Fairchild v. Gray,
242 N.Y.S. 192, 196, 136 Misc. 704. An excess
of the value of returns over the value of advances.
The same as net profits. Crawford v. Surety Inv.
Co., 91 Kan. 748, 139 P. 481, 484.
The term "profit," as applied to a corporation, has a
larger meaning than "dividends," and covers benefits of
any kind, the excess of value over cost, acquisition beyond
expenditure, gain or advance. Booth v. Gross, Kelley &
Co., 30 N.M. 465, 238 P. 829, 831, 41 A.L.R. 868. Dividends
are properly declared only from profits after they have
been earned. Indiana Veneer & Lumber Co. v. Hageman,
57 Ind.App. 668, 105 N.E. 253, 256. This is a word of very
extended signification. In commerce, it means the ad-
vance in the price of goods sold beyond the cost of pur-
chase. In distinction from the wages of labor, it is well
understood to imply the net return to the capital of stock
employed, after deducting all the expenses, including not
only the wages of those employed by the capitalist, but the
wages of the capitalist himself for superintending the em-
ployment of his capital or stock. Columbus Mining Co. v.
Ross, 218 Ky. 98, 290 S. W. 1052, 1053, 50 A.L.R. 1394. After
indemnifying the capitalist for his outlay, there commonly
remains a surplus, which is his profit, the net income from
his capital. 1 Mill, Polit. Econ. c. 15.
Profits have been divided by writers on political economy
into gross and net,—gross profits being the whole difference
between the value of advances and the value of returns
made by their employment, and net profits being so much
of that difference as is attributable solely to the capital
employed. Malthus, Political Econ.; M'Culloch, Political
Econ. 563. For judicial criticism of the expression "gross
profits," see the opinion of Jesse!, M. R., 10 App.Cas. 446.
See, also, Buie v. Kennedy, 164 N. C. 290, 80 S.E. 445, 446.
The benefit, advantage, or pecuniary gain ac-
cruing to the owner or occupant of land from its
actual use; as in the familiar phrase "rents, is-
sues and profits," or in the expression "mesne
profits."
A devise of the rents and profits of land is equivalent to
a devise of the land itself, and will carry the legal as well
as the beneficial interest therein. 2 B. & Ald. 42; Earl v.
Rowe, 35 Me. 414, 58 Am.Dec. 714; 1 Bro.C.C. 310.
A division sometimes made of incorporeal here-
ditaments. 2 Steph.Comm. 2. Profits are divided
into profits a prendre and profits a rendre. See
those titles, infra.
Clear profit. A net profit, or a profit above
the price paid. Kreitz v. Gallenstein, 170 Ky. 16,
185 S.W. 132, 134.
Mesne profits. Intermediate profits; that is,
profits which have been accruing between two
given periods. Thus, after a party has recovered
the land itself in an action of ejectment, he fre-
quently brings another action for the purpose of
recovering the profits which have been accruing or
arising out of the land between the time when his
title to the possession accrued or was raised and
the time of his recovery in the action of ejectment,
and such an action is thence termed an "action
for mesne profits." Brown; New York, 0. & W.
Ry. Co. v. Livingston, 206 App.Div. 589, 201 N.Y.S.
629, 633.
Mesne profits, action of. An action of trespass
brought to recover profits derived from land, while
the possession of it has been improperly withheld;
that is, the yearly value of the premises. Worth-
ington v. Hiss, 70 Md. 172, 16 A. 534; Thompson
v. Bower, 60 Barb. (N.Y.) 477.
Net profits. Theoretically all profits are "net."
Buie v. Kennedy, 164 N.C. 290, 80 S.E. 445, 446.
But as the expression "gross profits" is sometimes
used to describe the mere excess of present value
over former value, or of returns from sales over
prime cost, the phrase "net profits" is appropriate
to describe the gain which remains after the
further deduction of all expenses, charges, costs,
allowance for depreciation, etc.
Paper profits. Speculative or prospective prof-
its. Tooey v. C. L. Percival Co., 192 Iowa, 267,
182 N.W. 403, 404.
Profit a prendre. Called also "right of com-
mon." A right exercised by one man in the soil
of another, accompanied with participation in the
profits of the soil thereof. A right to take a part
of the soil or produce of the land. Gadow v. Hun-
holtz, 160 Wis. 293, 151 N.W. 810, 811, Ann.Cas.
1917D, 91.
The term includes the right to take soil, gravel, minerals,
and the like from another's land, Munsey v. Mills & Garit-
ty, 115 Tex. 469, 283 S. W. 754, 759; Mathews Slate Co. of
New York v. Advance Industrial Supply Co., 172 N.Y.S. 830,
832, 185 App.Div. 74; the right to take seaweed, Hill v.
Lord, 48 Me. 100; and to take coal or timber, Huff v. Mc-
Cauley, 53 Pa. 206, 91 Am.Dec. 203; the right to hunt, St.
Helen Shooting Club v. Mogle, 234 Mich. 60, 207 N.W. 915,
917; or fish, Turner v. Hebron, 22 A. 951, 61 Conn. 175,
14 L.R.A. 386; and the right to cut grass, Baker v. Ken-
ney, 145 Iowa 638, 124 N.W. 901, 139 Am.St.Rep. 456; but
not the right to take running water, since it is not a prod-
uct of the soil. Hill v7"tord, 48 Me. 83. Profits a prendre
differ from easements, in that the former are rights of
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profit, and the latter are mere rights of convenience with-
out profit. Gale, Easem. 1; Hall. Bingham v. Salene, 15
Or. 208, 14 P. 523, 3 Am.St.Rep. 152; Pierce v. Keator, 70
N.Y. 422, 26 Am.Rep. 612. A profit a prendre is considered
an interest or estate in the land itself, 28 C.J.S., Ease-
ments, 628, 631, § 3, whereas an easement is a privilege
without profit. Walker v. Dwelle, 187 Iowa 1384, 175 N.W.
957. Saratoga State Waters Corporation v. Pratt, 227 N.Y.
429, 125 N.E. 834. 838. But a profit a prendre is sometimes
spoken of as an easement, especially when appurtenant to
a dominant tenement. Grubb v. Grubb, 74 Pa. 25, 33. The
right can be acquired only by grant or prescription, and
not by custom or parol. 28 C.J.S., Easements, 628, 633, § 3.
Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 367, 32 A.
L.R. 1527.
Profit a rendre. Such as is received at the hands
of and rendered by another. The term compre-
hends rents and services. Ham.N.P. 192.
Profit and loss. The gain or loss arising from
goods bought or sold, or from carrying on any oth-
er business, the former of which, in book-keeping,
is placed on the creditor's side; the latter on the
debtor's side.
Surplus profits. Within the meaning of a stat-
ute prohibiting the declaration of corporate divi-
dends other than from such profits, the excess of
receipts over expenditures, or net earnings or re-
ceipts, or gross receipts, less expenses of opera-
tion. Southern California Home Builders v.
Young, 45 Cal.App. 679, 188 P. 586, 591. Of a cor-
poration, the difference over and above the capital
stock, debts, and liabilities. Western & Southern
Fire Ins. Co. v. Murphey, 56 Okl. 702, 156 P. 885,
890.
PROFITEERING. The acquisition of excessive
profits;—usually used as a term of reproach and
dishonor. Mount v. Welsh, 118 Or. 568, 247 P.
815, 822.
PROGENER. Lat. In the civil law. A grandson-
in-law. Dig. 38, 10, 4, 6.
PROGRESSION. That state of a business which
is neither the commencement nor the end. Some
act done after the matter has commenced, and
before it is completed. Plowd. 343.
PROHIBETUR NE QUIS FACIAT IN SUO QUOD
NOCERE POSSIT ALIENO. It is forbidden for
any one to do or' make on his own [land] what
may injure another's. 9 Coke, 59a.
PROHIBIT. To forbid by law; to prevent;—not
synonymous with "regulate." Simpkins v. State,
35 Okl.Cr. 143, 249 P. 168, 170; Arkansas Railroad
Commission v. Independent Bus Lines, 172 Ark.
3, 285 S.W. 388, 390.
PROHIBITED DEGREES. Those degrees of re-
lationship by consanguinity which are so close
that marriage between persons related to each
other in any of such degrees is forbidden by law.
State v. Guiton, 51 La.Ann. 155, 24 So. 784.
PROHIBITIO DE VASTO, DIRECTA PARTI. A
judicial writ which was formerly addressed to a
tenant, prohibiting him from waste, pending suit.
Reg.Jud. 21; Moore, 917.
Black's Law Dictionary Revised 4th Ed.-87
PROHIBITION. Inhibition; interdiction. Talbott
v. Casualty Co., 74 Md. 545, 22 A. 395, 13 L.R.A.
584.
In practice. The name of a writ issued by a su-
perior court, directed to the judge and parties of
a suit in an inferior court, commanding them to
cease from the prosecution of the same, upon a
suggestion that the cause originally, or some col-
lateral matter arising therein, does not belong
to that jurisdiction, but to the cognizance of some
other court. 3 B1.Comm. 112; Alexander v. Crol-
lott, 199 U.S. 580, 26 S.Ct. 161, 50 L.Ed. 317. It
is only issued in cases of extreme necessity where
the grievance cannot be redressed by ordinary pro-
ceedings at law, or in equity, or by appeal. Niaga-
ra Falls Power Co. v. Halpin, 45 N.Y.S.2d 421, 424,
181 Misc. 13; State ex rel. Levy v. Savord, 143
Ohio St. 451, 55 N.E.2d 735, 736.
An extraordinary writ, issued by a superior court to an
inferior court to prevent the latter from exceeding its juris-
diction, either by prohibiting it from assuming jurisdiction
in a matter over which it has no control, or from going be-
yond its legitimate powers in a matter of which it ha's
jurisdiction. State v. Medler, 19 N.M. 252, 142 P. 376, 377.
An extraordinary judicial writ issuing out of a court of
superior jurisdiction, directed to an inferior court or tri-
bunal exercising judicial powers, for the purpose of pre-
venting the inferior tribunal from usurping a jurisdiction
with which it is not lawfully vested, State v. Stanfield, 11
Okl.Cr. 147, 143 P. 519, 522; from assuming or exercising
jurisdiction over matters beyond its cognizance, Jackson v.
Calhoun, 156 Ga. 756, 120 S.E. 114, 115; or from exceeding
its jurisdiction in matters of which it has cognizance.
Jackson v. Calhoun, 156 Ga. 756, 120 S.E. 114, 115.
The writ of prohibition is the counterpart of the writ
of mandate. It arrests the proceedings of any tribunal,
corporation, board, or person, when such proceedings are
without or in excess of the jurisdiction of such tribunal,
corporation, board, or person. Code Civ.Proc.Cal. § 1102.
State v. Packard, 32 N.D. 301, 155 N.W. 666, 667. Johnston
v. Hunter, 50 W.Va. 52, 40 S.E. 448. State v. Evans, 88
Wis. 255, 60 N.W. 433.
Prohibition may, where the action sought to be prohibit-
ed is judicial in its nature, be exercised against public
officers. State ex rel. United States Fidelity & Guaranty
Co. v. Harty, 276 Mo. 583, 208 S. W. 835, 838.
The term prohibition is also applied to the inter-
diction of making, possessing, selling or giving
away, intoxicating liquors, either absolutely, or
for beverage purposes, or for other than medic-
inal, scientific, and sacramental purpbses.
PROHIBITIVE IMPEDIMENTS. Those impedi-
ments to a marriage which are only followed by
a punishment, but do not render the marriage
null. Bowyer, Mod. Civil Law, 44. See Impedi-
ments.
PROJECTIO. Lat. In old English law. A throw-
ing up of earth by the sea.
PROJET. Fr. In international law. The draft
of a proposed treaty or convention.
PROJET DE LOI. A bill in a legislative body.
PROLEM ANTE MATRIMONIUM NATAM, ITA
UT POST LEGITIMAM, LEX CIVILIS SUCCE-
DERE FACIT IN HIEREDITATE PARENTUM;
SED PROLEM, QUAM MATRIMONIUM NON
PARIT, SUCCEDERE NON SINIT LEX AN-
GLORUM. Fortesc. c. 39. The civil law permits
the offspring born before marriage, provided such
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PROLES
offspring be afterwards legitimized, to be the heirs
of their parents; but the law of the English does
not suffer the offspring not produced by the mar-
riage to succeed.
PROLES. Lat. Offspring; progeny; the issue
of a lawful marriage. In its enlarged sense, it
signifies any children.
PROLES SEQUITUR SORTEM PATERNAM.
The offspring follows the condition of the father.
Lynch v. Clarke, 1 Sandf.Ch. (N.Y.) 583, 660.
PROLETARIAT, PROLETARIATE. The class or
body of proletarians. Webster, Dict. The class of
unskilled laborers, without property or capital, en-
gaged in the lower grades of work. People v.
Gitlow, 234 N.Y. 132, 136 N.E. 317, 322. The class
of proletarii (see the next title) ;  the lowest
stratum of the people of a country, consisting
mainly of the waste of other classes, or of those
fractions of the population who, by their isolation
and their poverty, have no place in the established
order of society.
PROLETARIUS. Lat. In Roman law. A prole-
tary; a person of poor or mean condition; one
among the common people whose fortunes were
below a certain valuation; one of a class of citi-
zens who were so poor that they could not serve
the state with money, but only with their children,
(proles.) Calvin.; Vicat.
PROLICIDE. In medical jurisprudence. A word
used to designate the destruction of the human
offspring. Jurists divide the subject into feticide,
or the destruction of the fetus in utero, and in-
fanticide, or the destruction of the new-born in-
fant. Ry.Med.Jur. 280.
PROLIXITY. The unnecessary and superfluous
statement of facts in pleading or in evidence.
This will be rejected as impertinent. 7 Price, 278,
note.
PROLOCUTOR. In ecclesiastical law. The presi-
dent or chairman of a convocation. The speaker
of the house of lords is called the prolocutor.
The office belongs to the lord chancellor by pre-
scription; 3 Steph.Comm. 347.
PROLONGATION. Time added to the duration of
something; an extension of the time limited for
the performance of an agreement.
PROLYTIE. In Roman law. A term applied to
students of law in the fifth and last year of their
course; as being in advance of the Lytm, or stu-
dents of the fourth year. Calvin. They were left
during this year very much to their own direction,
and took the name prolytte, omnio soluti. They
studied chiefly the Code and the imperial consti-
tutions.
PROMATERTERA. Lat. In the civil law. A ma-
ternal great-aunt; the sister of one's grandmother.
Inst. 3. 6. 3; Dig. 38. 10. 10. 14.
PROMATERTERA MAGNA, Lat. In the civil
law. A great-great-aunt.
PROMISE. A declaration which binds the person
who makes it, either in honor, conscience, or law,
to do or forbear a certain specific act, and which
gives to the person to whom made a right to ex-
pect or claim the performance of some particular
thing. Hoskins v. Black, 190 Ky. 98, 226 S.W. 384,
385. A declaration, verbal or written, made by
one person to another for a good or valuable con-
sideration, in the nature of a covenant by which
the promisor binds himself to do or forbear some
act, and gives to the proniisee a legal right to de-
mand and enforce a fulfillment. Scott v. S. H.
Kress & Co., Tex.Civ.App., 191 S.W. 714, 716. An
express undertaking, or agreement to carry a pur-
pose into effect. E. I. Du Pont De Nemours & Co.
v. Claiborne-Reno Co., C.C.A.Iowa, 64 F.2d 224, 89
A.L.R. 238.
While a "promise" is sometimes loosely defined as a dec-
laration by any person of his intention to do or forbear
from anything at the request or for the use of another.
Finlay v. Swirsky, 103 Conn. 624, 131 A. 420, 423; Beck v.
Wilkins-Ricks Co., 186 N.C. 210, 119 S.E. 235, 236; it is to
be distinguished, on the one hand, from a mere declaration
of intention involving no engagement or assurance as to
the future. Scott v. S. H. Kress & Co., Tex.Civ.App., 191
S.W. 714, 716. And, on the other, from "agreement,"
which is an obligation arising upon reciprocal promises,
or upon a promise founded on a consideration. Abbott.
Strictly speaking a promise is not a representation; the
failure to make it good may give a cause of action, but it
is not a false representation, which will authorize the
rescission of a contract. Cunyus v. Guenther, 96 Ala. 564,
11 So. 649.
Fictitious promise. Sometimes called "implied
promises," or "promises implied in law," occur in
the case of those contracts which were invented
to enable persons in certain cases to take advan-
tage of the old rules of pleading peculiar to con-
tracts, and which are not now of practical im-
portance. Sweet.
Mutual promises. Promises simultaneously
made by and between two parties; each promise
being the consideration for the other. Anson
Contr. 72; 14 M. & W. 855.
Naked promise. One given without any con-
sideration, equivalent, or reciprocal obligation, and
for that reason not enforceable at law. Arend v.
Smith, 151 N.Y. 502, 45 N.E. 872.
New promise. An undertaking or promise,
based upon and having relation to a former prom-
ise which, for some reason, can no longer be en-
forced, whereby the promisor recognizes and re-
vives such former promise and engages to fulfill
it.
Parol promise. A simple contract; a verbal
promise. 2 Steph.Comm. 109.
Promise of marriage. A contract mutually en-
tered into by a man and a woman that they will
marry each other.
Promise to pay the debt of another. Within
the statute of frauds, a promise to pay the debt
of another is an undertaking by a person not be-
fore liable, for the purpose of securing or per-
forming the same duty for which the party for
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PROMPTLY
whom the undertaking is made, continues liable.
Dillaby v. Wilcox, 60 Conn. 71, 22 A. 491, 13 L.R.A.
643, 25 Am.St.Rep. 299.
PROMISEE. One to whom a promise has been
made.
PROMISOR. One who makes a promise.
PROMISSOR. Lat. In the civil law. A promis-
er; properly the party who undertook to do a
thing in answer to the interrogation of the other
party, who was called the "stipulator."
PROMISSORY. Containing or consisting of a
promise; in the nature of a promise; stipulating
or engaging for a future act or course of conduct.
As to promissory "Oath," "Representation," and
"Warranty," see those titles.
PROMISSORY ESTOPPEL. That which arises
when there is a promise which promisor should
reasonably expect to induce action or forbearance
of a definite and substantial character on part
of promisee, and which does induce such action
or forbearance, and such promise is binding if
injustice can be avoided only by enforcement of
promise. New Eureka Amusement Co. v. Rosin-
sky, 126 Pa.Super. 444, 191 A. 412, 415.
To constitute "waiver without consideration," there must
be promise or permission, express or implied in fact, sup-
ported only by action in reliance thereon, to excuse per-
formance in future of condition or obligation not due at
time when promise is made, or to give up defense not yet
arisen, and such facts do not constitute "estoppel" because
there is no misrepresentation of existing facts, but it may
be called "promissory estoppel." Colbath v. H. B. Steb-
bins Lumber Co., 127 Me. 406, 144 A. 1, 5.
PROMISSORY NOTE. A promise or engage-
ment, in writing, to pay a specified sum at a time
therein limited, or on demand, or at sight, to a
person therein named, or to his order, or bearer.
Byles, Bills, 1, 4; Hall v. Farmer, 5 Denio, N.Y.,
484. A written promise made by one or more to
pay another, or order, or bearer, at a specified
time, a specific amount of money, or other articles
of value. Pryor v. American Trust & Banking
Co., 15 Ga.App. 822, 84 S.E. 312, 314. An uncon-
ditional written promise, signed by the maker, to
pay absolutely and at all events a sum certain in
money, either to the bearer or to a person therein
designated or his order, Benj. Chalm. Bills & N.
art. 271; Harrison v. Beals, 111 Or. 563, 222 P.
728, 730; at a time specified therein, or at a time
which must certainly arrive. Iowa State Savings
Bank v. Wignall, 53 Okl. 641, 157 P. 725; Lanum
v. Harrington, 267 Ill. 57, 107 N.E. 826, 828.
A written promise to pay a certain sum of money, at a
future time, unconditionally. Brooks v. Owen, 112 Mo. 251,
19 S.W. 723, 20 S.W. 492. By the Uniform Negotiable In-
struments Act, a negotiable promissory note is defined as
an unconditional promise in writing made by one person
to another signed by the maker engaging to pay on de-
mand, or at a fixed or determinable future time, a sum
certain in money to order or to bearer. Where a note is
drawn to the maker's own order, it is not complete until
indorsed by him. Section 184.
PROMOTE. To contribute to growth, enlarge-
ment, or prosperity of; to forward; to further;
to encourage; to advance. People v. Augustine,
232 Mich. 29, 204 N.W. 747, 749.
PROMOTER. One who promotes, urges on, en-
courages, incites, advances, etc. Martin v. Street
Improvement Dist. No. 324 of City of Little Rock,
167 Ark. 108, 266 S.W. 941, 942. One promoting
a plan by which it is hoped to insure the success
of a business venture. Caskie v. State Corpora-
tion Commission, 145 Va. 459, 134 S.E. 583, 584.
Corporation Law
The persons who, for themselves or others, take
the preliminary steps to the organization of a cor-
poration. 1 Thompson on Corporations, § 81. Mc-
Ree v. Quitman Oil Co., 16 Ga.App. 12, 84 S.E.
487; Alkire v. Acuff, 134 Okl. 43, 272 P. 405, 407.
Those persons who first associate themselves to-
gether for the purpose of organizing the company,
issuing its prospectus, procuring subscriptions to
the stock, securing a charter, etc. See Dicker-
man v. Northern Trust Co., 20 S.Ct. 311, 176 U.S.
181, 44 L.Ed. 423.
Ecclesiastical Law
One who puts in motion an ecclesiastical tribu-
nal, for the purpose of correcting the manners
of any person who has violated the laws eccle-
siastical; and one who takes such a course is
said to "promote the office of the judge." See
Mozley & Whiteley.
England
The term is also applied to persons or corpora-
tions at whose instance private bills are intro-
duced into and passed through parliament, es-
pecially those who press forward bills for the
taking of land for railways and other public pur-
poses, who are then called promoters of the un-
dertaking.
English Practice
Those persons who, in popular and penal ac-
tions, prosecute offenders in their own names and
that of the king, and are thereby entitled to part
of the fines and penalties for their pains. Brown.
PROMOVENT. A plaintiff in a suit of duplex
querela (q. v.). 2 Prob.Div. 192.
PROMPT. To act immediately, responding on the
instant. In re Peene's Will, 279 N.Y.S. 131, 155
Misc. 155.
PROMPT DELIVERY. This term means within a
few days at most. Acme-Evans Co. v. Hunter, 194
Ill.App. 542, 543. Delivery as promptly as pos-
sible, all things considered. Meyer Bros. Drug
Co. v. Callison, 120 Wash. 378, 207 P. 683, 684.
PROMPT SHIPMENT. Shipment within a rea-
sonable time. Kelley-Clarke Co. v. Leslie, 61 Cal.
App. 559, 215 P. 699, 702.
PROMPTLY. Adverbial form of the word
"prompt," which means ready and quick to act as
occasion demands. Missouri, K. & T. Ry. Co. v.
Missouri Pac. Ry. Co., 103 Kan. 1, 175 P. 97, 103.
The meaning of the word depends largely on the
facts in each case. Irvin v. Koehler, C.C.A.N.Y.,
230 F. 795, 796; Stovall & Strickland v. McBrayer,
20 Ga.App. 93, 92 S.E. 543.
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PROMULGARE
PROMULGARE. Lat. In Roman law. To make
public; to make publicly known; to promulgate.
To publish or make known a law after its enact-
ment.
PROMULGATE. To publish; to announce offi-
cially; to make public as important or obliga-
tory. Price v. Supreme Home of the Ancient Or-
der of Pilgrims, Tex.Com.App., 285 S.W. 310, 312.
PROMULGATION. The order given to cause a
law to be executed, and to make it public; it
differs from publication. 1 Bl.Comm. 45; Stat.
6 Hen. VI. c. 4. In modern practice, it is usually
by publishing one or more volumes of the laws
and circulating them among public officials and
selling them. As to the practice in England at
various times, see Record Com. in 7 Sel. Essays
in Anglo-Amer. L. H. 168.
As to the rules of a railway company it means
made known; brought to the attention of the
service affected thereby, so that a servant is
bound to take notice. Wooden v. R. Co., Super., 18
N.Y.S. 768.
Formerly promulgation meant introducing a
bill to the senate; Aust. Jur. Lect, 28.
PROMUTUUM. Lat. In the civil law. A quasi
contract, by which he who receives a certain sum
of money, or a certain , quantity of fungible things,
which have been paid to him through mistake,
contracts towards the payer the obligation of re-
turning him as much. Poth, de l'Usure, pt. 3, s.
1, a. 1.
This contract is called promutuum, because it has much
resemblance to that of mutuum. This resemblance consists
in this : first, that in both a sum of money or some fungi-
ble things are required; second, that in both there must be
a transfer of the property in the thing ; third, that in both
there must be returned the same amount or quantity of the
thing received. But, though there is this general resem-
blance between the two, the mutuum differs essentially
from the promutuum. The former is the actual contract
of the parties, made expressly, but the latter is a quasi-
contract, which is the effect of an error or mistake, 1
Bouvier, Inst. n. 1125.
PRONEPOS. Lat. In the civil law. A great-
grandson. Inst. 3, 6, 1; Bract. fol. 67.
PRONEPTIS. Lat. In the civil law. A great-
granddaughter, Inst. 3, 6, 1; Bract. fol. 67. Also,
a niece's daughter. Ainsworth, Dict,
PRONOTARY. First notary. See Prothonotary.
PRONOUNCE. To utter formally, officially, and
solemnly; to declare or affirm; to declare aloud
and in a formal manner. In this sense a court is
said to "pronounce" judgment or a sentence.
Griffin v. State, 12 Ga.App. 615(2), 618, 77 S.E.
1080; Sanders v. State, 18 Ga.App. 786, 90 S.E.
728.
PRONUNCIATION. L. Fr. A sentence or de-
cree. Kelham.
PRONURUS. Lat. In the civil law. The wife
of a grandson or great-grandson. Dig. 38, 10, 4,
6.
PROOF. The effect of evidence; the establish-
ment of a fact by evidence. Nevling v. Com., 98
Pa. 328; Powell v. State, 101 Ga. 9, 29 S.E. 309,
65 Am.St.Rep, 277. New England Newspaper
Pub. Co. v. Bonner, C.C.A.Mass., 77 F.2d 915, 916.
Any fact or circumstance which leads the mind to
the affirmative or negative of any proposition.
Nauful v. National Loan & Exchange Bank of
Columbia, 111 S.C. 309, 97 S.E. 843, 845. The con-
viction or persuasion of the mind of a judge or
jury, by the exhibition of evidence, of the reality
of a fact alleged. Ellis v. Wolfe-Shoemaker Mo-
tor Co., 227 Mo.App. 508, 55 S.W.2d 309.
"Testimony" is a more restricted term. For
"Testimony," see that title.
Ayliffe defines "judicial proof" to be a clear and evident
declaration or demonstration of a matter which was before
doubtful, conveyed in a judicial manner by fit and proper
arguments, and likewise by all other legal methods—First,
by flt and proper arguments, such as conjectures, presump-
tions, indicia, and other adminicular ways and means;
secondly, by legal methods, or methods according to law,
such as witnesses, public instruments, and the like. Ayl.
Par. 442.
Evidence and Proof Distinguished
"Proof" is the logically sufficient reason for assenting to
the truth of a proposition advanced. In its juridical sense
it is a term of wide import, and comprehends everything
that may be adduced at a trial, within the legal rules, for
the purpose of producing conviction in the mind of judge
or jury, aside from mere argument; that is, everything
that has a probative force intrinsically, and not merely as
a deduction from, or combination of, original probative
facts. But "evidence" is a narrower term, and includes
only such kinds of proof as may be legally presented at a
trial, by the act of the parties, and through the aid of such
concrete facts as witnesses, records, or other documents.
Thus, to urge a presumption of law in support of one's
case is adducing proof, but it is not offering evidence.
"Belief" is a subjective condition resulting from proof. It
is a conviction of the truth of a proposition, existing in
the mind, and induced by persuasion, proof, or argument
addressed to the judgment.
The word "proof" seems properly to mean anything
which serves, either immediately or mediately, to convince
the mind of the truth or falsehood of a fact or proposition.
It is also applied to the conviction generated in the mind
by proof properly so called. The word "evidence" signi-
fies, in its original sense, the state of being evident, i. e.,
plain, apparent, or notorious. But by an almost peculiar
inflection of our language, it is applied to that which tends
to render evident or to generate proof. Best, Ev. §§ 10, 11;
Dupont v. Pelletier, 120 Me. 114, 113 A. 11, 12. "Evidence"
differs from "proof" in that former may be false and of no
probative value. State v. Howard, 162 La. 719, 111 So. 72,
75.
Proof in a strictly accurate and technical sense is the re-
sult or effect of evidence, while evidence is the medium
or means by which a fact is proved or disproved, but the
words "proof" and "evidence" may be used interchange-
ably. Walker v. State, 138 Ark. 517, 212 S.W. 319, 324;
Latikos v. State, 17 Ala.App. 592, 88 So. 45, 47.
"Proof" is only link in chain of evidence relating to
single thing or statement of single witness, and it is these
links relating to entire proof which go to make up evi-
dence. Cleveland Metal Bed Co. v. Kutz, 27 Ohio App. 245,
160 N.E. 725, 726.
Proof is the conclusion drawn from the evidence, Jones
v. Clements, Tex.Civ.App., 41 S.W.2d 1069, 1070; it is the
effect of evidence. State v. Crutcher, 231 Iowa 418, 1 N.W.
2d 195, 198. Sims v. Clayton, 193 S.C. 98, 7 S.E.2d 724, 728.
Proof is the perfection of evidence; for without evidence
there is no proof, although there may be evidence which
does not amount to proof : for example, if a man is found
murdered at a spot where another has been seen walking
but a short time before, this fact will be evidence to show
that the latter was the murderer, but, standing alone, will
be very far from proof of it.
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PROPER
"Proof," when used in a legislative enactment means com-
petent and legal evidence, testimony conforming to funda-
mental rules of proof, excluding hearsay evidence, however
trustworthy. Hand v. Nolan, 1 N.J.Misc. 428, 136 A. 430,
431.
No material difference between terms exists for purposes
of instruction. Merrick v. United Rys. & Electric Co. of
Baltimore City, 163 Md. 641, 163 A. 816, 818.
Affirmative proof. Evidence establishing the
fact in dispute by a preponderance of the evi-
dence. Boardman v. Lorentzen, 155 Wis. 566, 145
N.W. 750, 755, 52 L.R.A.,N.S., 476.
Burden of proof. See that title.
Conclusive proof. As used in a statute provid-
ing for an action against a county for injury to
cattle resulting from dipping for eradication of
cattle ticks, it has been held to be equivalent to the
expression, "to a moral certainty" or "beyond a
reasonable doubt," meaning a higher degree of
proof than by a preponderance of the evidence.
Covington County v. Fite, 120 Miss. 421, 82 So.
308, 309.
Degree of proof. Refers to effect of evidence
rather than medium by which truth is established,
and in this sense expressions "preponderance of
evidence" and "proof beyond reasonable doubt"
are used. Sowle v. Sowle, 115 Neb. 795, 215 N.W.
122, 123.
Full proof. See Full.
Half proof. See Half.
Negative proof. See Positive Proof, infra.
Positive proof. Direct or affirmative proof;
that which directly establishes the fact in ques-
tion; as opposed to negative proof, which estab-
lishes the fact by showing that its opposite is
not or cannot be true. Schrack v. McKnight, 84
Pa. 30.
Preliminary proof. See Preliminary.
Proof beyond a reasonable doubt. Such proof
as precludes every reasonable hypothesis except
that which it tends to support and which is wholly
consistent with defendant's guilt and inconsistent
with any other rational conclusion. State v. Mc-
Donough, 129 Conn. 483, 29 A.2d 582, 583.
Proof evident or presumption great. As used
in constitutional provisions that accused shall
be bailable unless for capital offenses when the
"proof is evident" or "presumption great," means
evidence clear and strong, and which leads
well guarded, dispassionate judgment to conclu-
sion that accused committed offense and will be
punished capitally. Ex parte Coward, 145 Tex.
Cr.R. 593, 170 S.W.2d 754, 755. Ex parte Goode,
123 Tex.Cr.R. 492, 59 S.W.2d 841; Ex parte Tully,
70 Fla. 1, 66 So. 296, 297.
Proof of debt. The formal establishment by a
creditor of his debt or claim, in some prescribed
manner, (as, by his affidavit or otherwise,) as a
preliminary to its allowance, along with others,
against an estate or property to be divided, such
as the estate of a bankrupt or insolvent, a deceas-
ed person or a firm or company in liquidation.
Proof of spirits. Testing the strength of alco-
holic spirits, also the degree of strength; as high
proof, first proof, second, third, and fourth proofs.
In the internal revenue law it is used in the sense
of degree of strength. Louisville P. W. Co. v. Col-
lector of Customs, C.C.A.Ky., 49 F. 561, 1 C.C.A.
371, 6 U.S.App. 53.
Proof of will. A term having the same mean-
ing as "probate," (q. v.), and used interchange-
ably with it.
PROP. An upright post wedged between the
roof and the floor of a mine to support the roof.
Big Branch Coal Co. v. Wrenchie, 160 Ky. 668, 170
S.W. 14, 16.
PROPAGATE. To cause to spread. In re Atkin-
son's Will, 197 N.Y.S. 831, 832, 120 Misc.Rep. 186.
PROPATRUUS. Lat. In the civil law. A great-
grandfather's brother. Inst. 3, 6, 3; Bract. fol.
68b.
PROPATRUUS MAGNUS. In the civil law. A
great-great-uncle.
PROPER. That which is fit, suitable, appropri-
ate, adapted, correct. Knox v. Lee, 12 Wall. 457,
20 L.Ed. 287; Reasonably sufficient. Houston &
T. C. Ry. Co. v. Kujawa, Tex.Civ.App., 265 S.W.
186, 187; Freedom Casket Co. v. McManus, C.C.A.
Pa., 218 F. 323, 326.
Peculiar; naturally or essentially belonging to
a person or thing; not common; appropriate;
one's own.
PROPER CARE. That degree of care which a
prudent man should use under like circumstances.
Baskin v. Montgomery Ward & Co., C.C.A.N.C.,
104 F.2d 531, 533.
PROPER EVIDENCE. Such evidence as may be
presented under the rules established by law and
recognized by the courts. The Betsey, 49 Ct.C1.
125, 131.
PROPER FEUDS. In feudal law, the original
and genuine feuds held by purely military service.
PROPER INDEPENDENT ADVICE. As to do-
nor means that he had preliminary benefit of con-
ferring upon subject of intended gift with a per-
son who was not only competent to inform him
correctly of its legal effect, but who was so dis-
associated from interests of donee as to be in posi-
tion to advise with donor impartially and confiden-
tially as to consequences to donor of his proposed
gift. Blume v. Blume, 90 N.J.Eq. 258, 106 A. 367,
368; Zwirtz v. Dorl, 123 Okl. 284, 253 P. 75, 77.
PROPER LOOKOUT. Duty imposed on motorist
to keep such lookout requires motorist to use care,
prudence, watchfulness, and attention of an or-
dinarily prudent person under same or similar cir-
cumstances. Pazen v. Des Moines Transp.
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PROPER
223 Iowa 23, 272 N.W. 126, 130; Southern Motor
Lines v. Creamer, Tex.Civ.App., 113 S.W.2d 624,
627.
PROPER PARTY. As distinguished from a nec-
essary party, is one who has an interest in the
subject-matter of the litigation, which may be
conveniently settled therein; one without whom
a substantial decree may be made, but not a de-
cree which shall completely settle all the questions
which may be involved in the controversy and
conclude the rights of all the persons who have
any interest in the subject of the litigation. See
Kelley v. Boettcher, C.C.A.Colo., 85 F. 55, 29 C.
C.A. 14; Tatum v. Roberts, 59 Minn. 52, 60 N.W.
848.
PROPERTY. That which is peculiar or proper
to any person; that which belongs exclusively to
one; in the strict legal sense, an aggregate of
rights which are guaranteed and protected by the
government. Fulton Light, Heat & Power Co. v.
State, 65 Misc.Rep. 263, 121 N.Y.S. 536. The term
is said to extend to every species of valuable right
and interest. McAlister v. Pritchard, 230 S.W. 66,
67, 287 Mo. 494. More specifically, ownership; the
unrestricted and exclusive right to a thing; the
right to dispose of a thing in every legal way, to
possess it, to use it, and to exclude every one else
from interfering with it. Mackeld. Rom. Law, §
265. That dominion or indefinite right of use or
disposition which one may lawfully exercise over
particular things or subjects. Transcontinental
Oil Co. v. Emmerson, 298 Ill. 394, 131 N.E. 645,
647, 16 A.L.R. 507. The exclusive right of possess-
ing, enjoying, and disposing of a thing. Barnes
v. Jones, 139 Miss. 675, 103 So. 773, 775, 43 A.L.R.
673; Tatum Bros. Real Estate & Investment Co.
v. Watson, 92 Fla. 278, 109 So. 623, 626. The high-
est right a man can have to anything; being used
for that right which one has to lands or tene-
ments, goods or chattels, which no way depends
on another man's courtesy. Jackson ex dem.
Pearson v. Housel, 17 Johns. 281, 283.
The right of property is that sole and despotic dominion
which one man claims and exercises over the external
things of the world, in total exclusion of the right of any
other individual in the universe. It consists in the free
use, enjoyment, and disposal of all a person's acquisitions,
without any control or diminution save only by the laws
of the land. 1 BI.Comm. 138; 2 Bl.Comm. 2, 15; Great
Northern Ry. Co. v. Washington Elec. Co., 197 Wash. 627,
86 P.2d 208, 217.
The word is also commonly used to denote
everything which is the subject of ownership, cor-
poreal or incorporeal, tangible or intangible, visi-
ble or invisible, real or personal; everything that
has an exchangeable value or which goes to make
up wealth or estate. It extends to every species
of valuable right and interest, and includes real
and personal property, easements, franchises, and
incorporeal hereditaments. Samet v. Farmers' &
Merchants' Nat. Bank of Baltimore, C.C.A.Md., 247
F. 669, 671; Globe Indemnity Co. v. Bruce, C.C.A.
Okl., 81 F.2d 143, 150.
Absolute property. In respect to chattels per-
sonal property is said to be "absolute" where a
man has, solely and exclusively, the right and also
the possession of movable chattels. 2 Bl.Comm.
389. In the law of wills, a bequest or devise "to
be the absolute property" of the beneficiary may
pass a title in fee simple. Fackler v. Berry, 93
Va. 565, 25 S.E. 887, 57 Am.St.Rep. 819. Or it
may mean that the property is to be held free
from any limitation or condition or free from
any control or disposition on the part of others.
Wilson v. White, 133 Ind. 614, 33 N.E. 361, 19 L.
R.A. 581.
Common property. A term sometimes applied
to lands owned by a municipal corporation and
held in trust for the common use of the inhabi-
tants. Also property owned jointly by husband
and wife under the community system. See Com-
munity.
Community property. See that title.
Ganancial property. See that title.
General property. The right and property in
a thing enjoyed by the general owner. See Own-
er.
Literary property. See Literary.
Mixed property. Property which is personal in
its essential nature, but is invested by the law
with certain of the characteristics and features
of real property. Heirlooms, tombstones, monu-
ments in a church, and title-deeds to an estate are
of this nature. 2 Bl.Comm. 428, 3 Barn. & Adol.
174; 4 Bing. 106; Minot v. Thompson, 106 Mass.
585.
Personal property. In broad and general sense,
everything that is the subject of ownership, not
coming under denomination of real estate. A
right or interest in things personal, or right or
interest less than a freehold in realty, or any right
or interest which one has in things movable. Elk-
ton Electric Co. v. Perkins, 145 Md. 224, 125 A.
851, 858. The term is generally applied to prop-
erty of a personal or movable nature, as opposed
to property of a local or immovable character,
(such as land or houses,) the latter being called
"real property," but is also applied to the right
or interest less than a freehold which a man has
in realty. Boyd v. Selma, 96 Ala. 144, 11 So.
393, 16 L.R.A. 729; In re Bruckman's Estate, 195
Pa. 363, 45 A. 1078.
That kind of property which usually consists
of things temporary and movable, but includes
all subjects of property not of a freehold nature,
nor descendible to the heirs at law. 2 Kent,
Comm. 340.
Personal property is divisible into (1) corporeal
personal property, which includes movable and
tangible things, such as animals, ships, furniture,
merchandise, etc.; and (2) incorporeal personal
property, which consists of such rights as per-
sonal annuities, stocks, shares, patents, and copy-
rights. Sweet.
Private property. As protected from being tak-
en for public uses, is such property as belongs ab-
solutely to an individual, and of which he has
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PROPOSAL
the exclusive right of disposition; property of a
specific, fixed and tangible nature, capable of be-
ing had in possession and transmitted to another,
such as houses, lands, and chattels. Homochitto
River Com'rs v. Withers, 29 Miss. 21, 64 Am.Dec.
126; Scranton v. Wheeler, 21 S.Ct. 48, 179 U.S. 141,
45 L.Ed. 126.
Property tax. In English law, this is under-
stood to be an income tax payable in respect to
landed property. In America, it is a tax imposed
on property, whether real or personal, as distin-
guished from poll taxes, and taxes on successions,
transfers, and occupations, and from license taxes.
Garrett v. St. Louis, 25 Mo. 510, 69 Am.Dec. 475;
In re Swift's Estate, 137 N.Y. 77, 32 N.E. 1096, 18
L.R.A. 709.
Public property. This term is commonly used
as a designation of those things which are publici
juris, (q. v.,) and therefore considered as being
owned by "the public," the entire state or com-
munity, and not restricted to the dominion of a
private person. It may also apply to any subject
of property owned by a state, nation, or munici-
pal corporation as such.
Qualified property. Property in chattels which
is not in its nature permanent, but may at some
times subsist and not at other times; such for
example, as the property a man may have in wild
animals which he has caught and keeps, and
which are his only so long as he retains posses-
sion of them. 2 Bl.Comm. 389. Any ownership
not absolute.
Real property. Land, and gentranywjaeyer-i t
is erected or  ' u  on or affixed tojand.
Ldnp r v. Glenn, 37 Minn. 4, 33 N.W. 10. Also
rights issuing_out of am3exes1 to. and expreisable
within or about land; a general term for lands,
tenements, and hereditaments; property which,
on the death of the owner intestate, passes to his
heir. Ralston Steel Car Co. v. Ralston, 112 Ohio
St. 306, 147 N.E. 513, 516, 39 A.L.R. 334. In re-
spect to property, rf2LanciperssznaLssarespand
very nearl
the civil law. Guyot, IMpert. Biens.
Separate property. See that title.
Special property. Property of a qualified, tem-
porary, or limited nature; as distinguished from
absolute, general, or unconditional property.
Such is the property of a bailee in the article
bailed, of a sheriff in goods temporarily in his
hands under a levy, of the finder of lost goods
while looking for the owner, of a person in wild
animals which he has caught. Stief v. Hart, 1
N.Y. 20, 24.
PROPINQUI ET CONSANGUINEI. Lat. The
nearest of kin to a deceased person.
PROPINQUIOR EXCLUDIT PROPINQUUM;
PROPINQUUS REMOTUM; ET REMOTUS RE-
MOTIOREM. Co.Litt. 10. He who is nearer ex-
cludes him who is near; he who is near, him who
is remote; he who is remote, him who is remoter.
PROPINQUITY. Kindred; parentage.
PROPIOR SOBRINO, PROPIOR SOBRINA. Lat.
In the civil law. The son or daughter of a great-
uncle or great-aunt, paternal or maternal. Inst.
3, 6, 3.
PROPIOS, PROPRIOS. In Spanish law. Certain
portions of ground laid off and reserved when a
town was founded in Spanish America as the un-
alienable property of the town, for the purpose
of erecting public buildings, markets, etc., or to
be used in any other way, under the direction of
the municipality, for the advancement of the reve-
nues or the prosperity of the place. 12 Pet. 442,
note.
Thus, there are solares, or house lots of a small size,
upon which dwellings, shops, stores, etc., are to be built.
There are suertes, or sowing grounds of a larger size, for
cultivating or planting ; as gardens, vineyards, orchards,
etc. There are ejidos, which are quite well described by
our word "commons," and are lands used in common by
the inhabitants of the place for pasture, wood, threshing
ground, etc. ; and particular names are assigned to each,
according to its particular use. Sometimes additional
ejidos were allowed to be taken outside of the town limits.
There are also propios or municipal lands, from which rev-
enues are derived to defray the expenses of the municipal
administration. Hart v. Burnett, 15 Cal. 554.
PROPONE. In Scotch law. To state. To pro-
pone a defense is to state or move it. 1 Karnes,
Eq. pref.
In ecclesiastical and probate law. To bring for-
ward for adjudication; to exhibit as basis of a
claim; to proffer for judicial action.
PROPONENT. The propounder of a thing.
Thus, the proponent of a will is the party who of-
fers it for probate (q. v.).
PROPORTIONATE. Adjusted to something else
according to certain rate of comparative rela-
tion. Hochsprung v. Stevenson, 82 Mont. 222, 266
P. 406, 408.
PROPORTUM. In old records. Purport; inten-
tion or meaning. Cowell.
PROPOSAL. An offer; something proffered. An
offer, by one person to another, of terms and con-
ditions with reference to some work or under-
taking, or for the transfer of property, the ac-
ceptance whereof will make a contract between
them. Eppes v. Mississippi, G. & T. R. Co., 35
Ala. 33. Signification by one person to another of
his willingness to enter into a contract with him
on the terms specified in the offer. Salisbury v.
Credit Service, Del.Super., 199 A. 674, 681.
In English practice. A statement in writing of
some special matter submitted to the considera-
tion of a chief clerk in the court of chancery,
pursuant to an order made upon an application ex
parte, or a decretal order of the court. It is eith-
er for maintenance of an infant, appointment of
a guardian, placing a ward of the court at the
university or in the army, or apprentice to a
trade; for the appointment of a receiver, the es-
tablishment of a charity, etc. Wharton.
m S• • O. id • f I
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PROPOSITIO
PROPOSITIO INDEFINITA ZEQUIPOLLET
VERSALL An indefinite proposition is equiva-
lent to a general one.
PROPOSITION. A single logical sentence; also
an offer to do a thing. Perry v. Dwelling House
Ins. Co., 67 N.H. 291, 33 A. 731, 68 Am.St.Rep. 668.
PROPOSITUS. Lat. The person proposed; the
person from whom a descent is traced.
PROPOUND. To offer; to propose. An executor
or other person is said to propound a will when
he takes proceedings for obtaining probate in
solemn form. The term is also technically used,
in England, to denote the allegations in the state-
ment of claim, in an action for probate, by which
the plaintiff alleges that the testator executed the
will with proper formalities, and that he was of
sound mind at the time. Sweet.
PROPRES. In French law. The term "propres"
or "biens propres" as distinguished from "ae-
auets" denotes all property inherited by a per-
son, whether by devise or ab intestato, from his
direct or collateral relatives, whether in the as-
cending or descending line; that is, in terms of
the common law, property acquired by "descent"
as distinguished from that acquired by "pur-
chase."
PROPRIA PERSONA. See In Propria Persona.
PROPRIEDAD. In Spanish Iaw. Property.
White, New Recop. b. 1, tit. 7, c. 5, § 2.
PROPRIETARY, n. A proprietor or owner; one
who has the exclusive title to a thing; one who
possesses or holds the title to a thing in his own
right. The grantees of Pennsylvania and Mary-
land and their heirs were called the proprietaries
of those provinces. Webster.
PROPRIETARY, adj. Belonging to ownership;
belonging or pertaining to a proprietor; relating
to a certain owner or proprietor. State v. F. W.
Woolworth Co., 184 Minn. 51, 237 N.W. 817, 818.
Proprietary articles. Goods manufactured un-
der some exclusive individual right to make and
sell them. The term is chiefly used in the inter-
nal revenue laws of the United States. See Fer-
guson v. Arthur, 6 S.Ct. 861, 117 U.S. 482, 29 L.
Ed. 979.
Proprietary chapel. See Chapel.
Proprietary duties. Those duties of a munici-
pality which are not governmental duties. City
of Miami v. Oates, 152 Fla. 21, 10 So.2d 721,
723. See Governmental Duties.
Proprietary governments. This expression is
used by Blackstone to denote governments grant-
ed out by the crown to individuals, in the nature
of feudatory principalities, with inferior regalities
and subordinate powers of legislation such as for-
merly belonged to the owners of counties palatine.
1 Bl.Comm. 108.
Proprietary rights. Those rights which an
owner of property has by virtue of his ownership.
When proprietary rights are opposed to acquired
rights, such as easements, franchises, etc., they
are more often called "natural rights." Sweet.
PROPRIETAS. Lat. In the civil and old English
law. Property; that which is one's own; owner-
ship.
Proprietas plena, full property, including not
only the title, but the usufruct, or exclusive right
to the use. Calvin.
Proprietas nuda, naked or mere property or
ownership; the mere title, separate from the usu-
fruct.
PROPRIETAS TOTIUS NAVIS CARIN)E CAUS-
ANI SEQUITUR. The property of the whole ship
follows the condition of the keel. Dig. 6, 1, 61.
If a man builds a vessel from the very keel with
the materials of another, the vessel belongs to
the owner of the materials. 2 Kent, Comm. 362.
PROPRIETAS VERBORUM EST SALUS PRO-
PIETATUM. Jenk.Cent. 16. Propriety of words
is the salvation of property.
PROPRIETATE PROBANDA, DE. A writ ad-
dressed to a sheriff to try by an inquest in whom
certain property, previous to distress, subsisted.
Finch, Law, 316.
PROPRIETATES VERBORUM SERVANDIE
SUNT. The proprieties of words [proper mean-
ings of words] are to be preserved or adhered to.
Jenk.Cent. p. 136, case 78.
PROPRIETE. The French law term correspond-
ing to our "property," or the right of enjoying
and of disposing of things in the most absolute
manner, subject only to the laws. Brown.
PROPRIETOR. One who has the legal right or
exclusive title to anything. In many instances it
is synonymous with owner. State v. F. W. Wool-
worth Co., 184 Minn. 51, 237 N.W. 817, 818, 76
A.L.R. 1202.
A person entitled to a trade-mark or a design under the
acts for the registration or patenting of trade-marks and
designs (q. v.) is called "proprietor" of the trade-mark or
design. Sweet: Louisville Planing Mill Co. v. Weir Sheet
Iron Works, 199 Ky. 361, 251 S. W. 176, 177.
PROPRIETY. In Massachusetts colonial ordi-
nance of 1741 is nearly, if not precisely, equiva-
lent to property. Corn. v. Alger, 7 Cush. (Mass.)
53, 70.
In old English law. Property; propriety in ac-
tion; propriety in possession; mixed propriety.
Hale, Anal. § 26.
PROPRIO VIGORE. Lat. By its own force; by
its intrinsic meaning.
PROPRIOS. In Spanish and Mexican law. Pro-
ductive lands, the usufruct of which had been set
apart to the several municipalities for the pur-
pose of defraying the charges of their respective
governments. Sheldon v. Milmo, 90 Tex. 1, 36
S.W. 413. See Arbitrios.
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PROSECUTOR
PROPTER. For; on account of. The initial
word of several Latin phrases.
PROPTER AFFECTUM. For or on account of
some affection or prejudice. The name of a spe-
cies of challenge (q. v.) .
PROPTER DEFECTUM. On account of or for
some defect. The name of a species of challenge
(q. v.).
PROPTER DEFECTUM SANGUINIS. On ac-
count of failure of blood.
PROPTER DELICTUM. For or on account of
crime. The name of a species of challenge, (q. v.) .
PROPTER HONORIS RESPECTUM. On account
of respect of honor or rank. See Challenge.
PROPTER IMPOTENTIAM. On account of help-
lessness. The term describes one of the grounds
of a qualified property in wild animals, consist-
ing in the fact of their inability to escape; as is
the case with the young of such animals before
they can fly or run. 2 Bl.Comm. 394.
PROPTER PRIVILEGIUM. On account of priv-
ilege. The term describes one of the grounds of
a qualified property in wild animals, consisting
in the special privilege of hunting, taking and kill-
ing them, in a given park or preserve, to the ex-
clusion of other persons. 2 Bl.Comm. 394.
PRORATE. To divide, share, or distribute pro-
portionally; to assess or apportion pro rata.
Formed from the Latin phrase "pro rata," and
said to be a recognized English word. Diamond
Alkali Co. v. Henderson Coal Co., 287 Pa. 232, 134
A. 386, 388.
PROROGATED JURISDICTION. In Scotch law.
A power conferred by consent of the parties upon
a judge who would not otherwise be competent.
PROROGATION. Prolonging or putting off to
another day. In English law, a prorogation is the
continuance of the parliament from one session to
another, as an adjournment is a continuation of
the session from day to day. Wharton.
In the civil law. The giving time to do a thing
beyond the term previously fixed. Dig. 2, 14, 27,
1.
PROROGUE. To direct suspension of proceed-
ings of parliament; to terminate a session.
PROSCRIBED. In the civil law. Among the Ro-
mans, a man was said to be "proscribed" when a
reward was offered for his head; but the term was
more usually applied to those who were sentenced
to some punishment which carried with it the con-
sequences of civil death. Cod. 9, 49.
PROSECUTE. To follow up; to carry on an ac-
tion or other judicial proceeding; to proceed
against a person criminally. To "prosecute" an
action is not merely to commence it, but includes
following it to an ultimate conclusion. Service
& Wright Lumber Co. v. Sumpter Valley Ry. Co.,
81 Or. 32, 152 P. 262, 264.
PROSECUTING ATTORNEY. The name of the
public officer (in several states) who is appointed
in each judicial district, circuit, or county, to con-
duct criminal prosecutions on behalf of the state
or people. Holder v. State, 58 Ark. 473, 25 S.W.
279.
PROSECUTING WITNESS. The private person
upon whose complaint or information a criminal
accusation is founded and whose testimony is
mainly relied on to secure a conviction at the trial;
in a more particular sense, the person who was
chiefly injured, in person or property, by the
act constituting the alleged crime, (as in cases
of robbery, assault, criminal negligence, bastardy,
and the like,) and who instigates the prosecution
and gives evidence.
PROSECUTIO LEGIS EST GRAVIS VEXATIO;
EXECUTIO LEGIS CORONAT OPUS. Litigation
is vexatious, but an execution crowns the work.
Co.Litt. 289b.
PROSECUTION. In criminal law. A criminal
action; a proceeding instituted and carried on by
due course of law, before a competent tribunal,
for the purpose of determining the guilt or inno-
cence of a person charged with crime. U. S. v.
Reisinger, 9 S.Ct. 99, 128 U.S. 398, 32 L.Ed. 480;
Sigsbee v. State, 43 Fla. 524, 30 So. 816; People v.
Ellis, 204 Mich. 157, 169 N.W. 930, 931. The con-
tinuous following up, through instrumentalities
created by law, of a person accused of a public
offense with a steady and fixed purpose of reach-
ing a judicial determination of the guilt or inno-
cence of the accused. Davenport v. State, 20 Okl.
Cr. 253, 202 P. 18, 24.
The means adopted to bring a supposed offender to jus-
tice and punishment by due course of law, carried on in
the name of the government. Summerour v. Fortson, 174
Ga. 862, 164 S.E. 809.
By an easy extension of its meaning "prosecu-
tion" is sometimes used to designate the state
as the party proceeding in a criminal action, or
the prosecutor, or counsel; as when we speak of
"the evidence adduced by the prosecution."
The term is also frequently used respecting civ-
il litigation, Eastman Marble Co. v. Vermont Mar-
ble Co., 236 Mass. 138, 128 N.E. 177, 182; and in-
cludes every step in action, from its commence-
ment to its final determination. Ray Wong v.
Earle C. Anthony, Inc., 199 Cal. 15, 247 P. 894, 895;
The Brazil, C.C.A.Ill., 134 F.2d 929, 930.
Malicious prosecution. See Malicious.
PROSECUTOR. In practice. One who prose-
cutes another for a crime in the name of the gov-
ernment; one who instigates a prosecution by
making affidavit charging a named person with
the commission of a penal offense on which a
warrant is issued or an indictment or accusation
is based. State v. Snelson, 13 Okl.Cr. 88, 162 P.
444, 445; Ethridge v. State, 164 Ga. 53, 137 S.E.
784, 785. One who instigates the prosecution up-
on which an accused is arrested or who prefers
an accusation against the party whom he suspects
to be guilty. People v. Lay, 193 Mich. 476, 160
N.W. 467, 470. One who takes charge of a case
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PROSECUTOR
and performs function of trial lawyer for the peo-
ple. People v. Lee, 272 N.Y.S. 817, 151 Misc. 431.
Private prosecutor. One who sets in motion
the machinery of criminal justice against a per-
son whom he suspects or believes to be guilty
of a crime, by laying an accusation before the
proper authorities, and who is not himself an of-
ficer of justice. Heacock v. State, 13 Tex.App.
129; State v. Millain, 3 Nev. 425.
Prosecutor of the pleas. This name is given,
in New Jersey, to the county officer who is charg-
ed with the prosecution of criminal actions, cor-
responding to the "district attorney" or "county
attorney" in other states.
Public prosecutor. An officer of government
'(such as a state's attorney or district attorney)
whose function is the prosecution of criminal ac-
tions, or suits partaking of the nature of crim-
inal actions.
PROSECUTRIX. In criminal law. A female
prosecutor.
PROSEQUI. Lat. To follow up or pursue; to
sue or prosecute. See Nolle Prosequi.
PROSEQUITUR. Lat. He follows up or pur-
sues; he prosecutes. See Non Pros.
PROSOCER. Lat. In the civil law. A father-
in-law's father; a grandfather of wife.
PROSOCERUS. Lat. In the civil law. A wife's
grandmother.
PROSPECTIVE. Looking forward; contemplat-
ing the future.
PROSPECTIVE DAMAGES. See Damages.
PROSPECTIVE LAW. One applicable only to
cases which shall arise after its enactment.
PROSPECTUS. A document published by a com-
pany or corporation, or by persons acting as its
agents or assignees, setting forth the nature and
objects of an issue of shares, debentures, or other
securities created by the company or corporation,
and inviting the public to subscribe to the issue.
A prospectus is also usually published on the is-
sue, in England, of bonds or other securities by
a foreign state or corporation. Sweet.
In the civil law. Prospect; the view of external
objects. Dig. 8, 2, 3, 15.
PROSTITUTION. Common lewdness of a wo-
man for gain; whoredom; the act or practice of
a woman who permits any man who will pay her
price to have sexual intercourse with her. Com.
v. Cook, 12 Metc., Mass., 97; State v. Anderson,
284 Mo. 657, 225 S.W. 896, 897; U. S. ex rel. Mittler
v. Curran, C.C.A.N.Y., 18 F.2d 355, 356. The act
or practice of a female of prostituting or offering
her body to an indiscriminate intercourse with men
for money or its equivalent. People v. Rice, 277
Ill. 521, 115 N.E. 631, 632.
PROSTITUTE. A woman who indiscriminately
consorts with men for hire. State v. Stoyell, 54
Me. 24, 89 Am.Dec. 716. A woman who has given
herself up to indiscriminate lewdness. Wilson v.
State, 17 Ala.App. 307, 84 So. 783. A woman sub-
mitting to indiscriminate sexual intercourse,
which she solicits. Trent v. Commonwealth, 181
Va. 338, 25 S.E.2d 350, 352.
The word in its most general sense means the
act of setting one's self to sale, or of devoting to
infamous purposes what is in one's power: as,
the prostitution of talents or abilities; the pros-
titution of the press, etc. Carpenter v. People, 8
Barb., N.Y., 610.
PROTECTIO TRAHIT SUBJECTIONEM, ET
SUBJECTIO PROTECTIONEM. Protection draws
with it subjection, and subjection protection.
7 Coke, 5a. The protection of an individual
by government is on condition of his submission
to the laws, and such submission on the other
hand entitles the individual to the protection of
the government. Broom, Max. 78.
PROTECTION. In English law. A writ by
which the king might, by a special prerogative,
privilege a defendant from all personal and many
real suits for one year at a time, and no longer,
in respect of his being engaged in his service
out of the realm. 3 Bl.Comm. 289.
In former times the name "protection" was also
given to a certificate given to a sailor to show
that he was exempt from impressment into the
royal navy.
In mercantile law. The name of a document
generally given by notaries public to sailors and
other persons going abroad, in which it is cer-
tified that the bearer therein named is a citizen
of the United States.
In public commercial law. A system by which
a government imposes customs duties upon com-
modities of foreign origin or manufacture when
imported into the country, for the purpose of
stimulating and developing the home production
of the same or equivalent articles, by discourag-
ing the importation of foreign goods, or by rais-
ing the price of foreign commodities to a point
at which the home producers can successfully
compete with them.
PROTECTION OF INVENTIONS ACT. The
statute 33 & 34 Vict. c. 27. By this act it is pro-
vided that the exhibition of new inventions shall
not prejudice patent rights, and that the exhibi-
tion of designs shall not prejudice the right to
registration of such designs.
PROTECTION OF THE LAWS. See Equal.
PROTECTION ORDER. In English practice. An
order for the protection of the wife's property,
when the husband has willfully deserted her, is-
suable by the divorce court under statutes on that
subject.
PROTECTIONIBUS DE. The English statute 33
Edw. I. St. 1, allowing a challenge to be entered
against a protection, etc.
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PROTESTATION
PROTECTIVE TARIFF. A law imposing duties
on imports, with the purpose and the effect of
discouraging the use of products of foreign ori-
gin, and consequently of stimulating the home pro-
duction of the same or equivalent articles. R. E.
Thompson, in Enc.Brit.
PROTECTOR OF SETTLEMENT. In English
law. By the statute 3 & 4 Wm. IV. c. 74, § 32,
power is given to any settlor to appoint any per-
son or persons, not exceeding three, the "protector
of the settlement." The object of such appoint-
ment is to prevent the tenant in tail from barring
any subsequent estate, the consent of the protector
being made necessary for that purpose.
PROTECTORATE. A state which has transfer-
red the management of its more important inter-
national affairs to a stronger state. 1 Opp. 144;
Salmond, Juris. 210. It implies only a partial loss
of sovereignty, so that the protected state still re-
tains a position in the family of nations. More-
over, the protected state remains so far independ-
ent of its protector that it is not obliged to be a
party to a war carried on by the protector against
a third state, nor are treaties concluded by the
protector ipso facto binding upon the protected
state; 1 Opp. 145-146.
The period during which Oliver Cromwell ruled
in England. Also the office of protector.
PROTEST. A formal declaration made by a per-
son interested or concerned in some act about to
be done, or already performed, whereby he ex-
presses his dissent or disapproval, or affirms the
act against his will. The object of such a dec-
laration is generally to save some right which
would be lost to him if his implied assent could
be made out, or to exonerate himself from some
responsibility which would attach to him unless
he expressly negatived his assent.
A notarial act, being a formal statement in
writing made by a notary under his seal of office,
at the request of the holder of a bill or note, in
which it is declared that the bill or note described
was on a certain day presented for payment, (or"
acceptance,) and that such payment or acceptance
was refused, and stating the reasons, if any, given
for such refusal, whereupon the notary protests
against all parties to such instrument, and de-
clares that they will be held responsible for all
loss or damage arising from its dishonor. Ann.-
vine Nat. Bank v. Kettering, 106 Pa. 531, 51 Am.
Rep. 536; Dennistoun v. Stewart, 17 How. 607, 15
L.Ed. 228. It denotes also all the steps or acts ac-
companying dishonor necessary to charge an in-
dorser. Townsend v. Lorain Bank, 2 Ohio St. 345;
Piedmont Carolina Ry. Co. v. Shaw, C.C.A.N.C.,
223 F. 973, 977; Maury v. Winlock & Toledo Log-
ging & R. Co., 148 Wash. 572, 269 P. 815, 817.
A formal declaration made by a minority (or by
certain individuals) in a legislative body that they
dissent from some act or resolution of the body,
usually adding the grounds of their dissent. The
term, in this sense, seems to be particularly ap-
propriate to such a proceeding in the English
house of lords. Auditor General v. Board of
Sup'rs, 51 N.W. 483, 89 Mich. 552.
The formal statement, usually in writing, made
by a person who is called upon by public author-
ity to pay a sum of money, in which he declares
that he does not concede the legality or justice
of the claim or his duty to pay it, or that he dis-
putes the amount demanded; the object being to
save his right to recover or reclaim the amount,
which right would be lost by his acquiescence.
Thus, taxes may be paid under "protest." Meyer
v. Clark, 2 Daly (N.Y.) 509.
The name of a paper served on a collector of
customs by an importer of merchandise, stating
that he believes the sum charged as duty to be
excessive, and that, although he pays such sum
for the purpose of getting his goods out of the
custom-house, he reserves the right to bring an
action against the collector to recover the excess.
U. S. Lian, C.C.A.N.Y., 10 F.2d 41, 42.
In maritime law. A written statement by the
master of a vessel, attested by a proper judicial
officer or a notary, to the effect that damage suf-
fered by the ship on her voyage was caused by
storms or other perils of the sea, without any neg-
ligence or misconduct on his own part. Marsh.
Ins. 715. And see Cudworth v. South Carolina
Ins. Co., 4 Rich.Law, S.C., 416, 55 Am.Dec. 692.
Notice of protest. A notice given by the holder
of a bill or note to the drawer or indorser that
the bill has been protested for refusal of payment
or acceptance. First Nat. Bank v. Hatch, 78 Mo.
23; Roberts v. State Bank, 9 Port. (Ala.) 315.
Supra protest. In mercantile law. A term ap-
plied to an acceptance of a bill by a third person,
after protest for nonacceptance by the drawee. 3
Kent, Comm. 87.
Waiver of protest. As applied to a note or bill,
a waiver of protest implies not only dispensing
with the formal act known as "protest," but also
with that which ordinarily must precede it, viz.,
demand and notice of non-payment. Baker v.
Scott, 29 Kan. 136, 44 Am.Rep. 628; First Nat.
Bank v. Hartman, 110 Pa. 196, 2 A. 271.
PROTESTANDO. L. Lat. Protesting. The em-
phatic word formerly used in pleading by way of
protestation. 3 Bl.Comm. 311. See Protestation.
PROTESTANTS. Those who adhered to the
doctrine of Luther; so called because, in 1529, they
protested against a decree of the emperor Charles
V. and of the diet of Spires, and declared that they
appealed to a general council. The name is now
applied indiscriminately to all the sects, of what-
ever denomination, who have seceded from the
Church of Rome. Enc.Lond. See Hale v. Ever-
ett, 53 N.H. 9, 16 Am.Rep. 82.
PROTESTATION. In pleading. The indirect af-
firmation or denial of the truth of some matter
which cannot with propriety or safety be positive-
ly affirmed, denied, or entirely passed over. 3 Bl.
Comm. 311. The exclusion of a conclusion. Co.
Litt. 124.
In practice. An asseveration made by taking
God to witness. A protestation is a form of as-
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PROTHONOTARY
severation which approaches very nearly to an
oath. Wolff.Inst.Nat. § 375.
PROTHONOTARY. The title given to an officer
who officiates as principal clerk of some courts.
Vin. Abr. Trebilcox v. McAlpine, 46 Hun, N.Y.,
469; Whitney v. Hopkins, 19 A. 1075, 135 Pa. 246.
PROTOCOL. A record or register. Among the
Romans, protocollum was a writing at the head
of the first page of the paper used by the notar-
ies or tabelliones. Nov. 44.
In France, -,the minutes of notarial acts were
formerly transcribed on registers, which were
called "protocols." Toullier, Droit Civil Fr. liv. 3,
t. 3, c. 6, s. 1, no. 413.
By the German law it signifies the minutes of
any transaction. Encyc.Amer.
International Law
The first draft or rough minutes of an instru-
ment or transaction; the original copy of a dis-
patch, treaty, or other document. Brande. A
document serving- as the preliminary to, or open-
ing of, any diplomatic transaction.
Old Scotch Practice
A book, marked by the clerk-register, and de-
livered to a notary on his admission, in which
he was directed to insert all the instruments he
had occasion to execute; to be preserved as a rec-
ord. Bell.
PROTOCOLIZE. A term in Cuban law meaning
to copy in the records of a notary. In re Moran's
Will, 39 N.Y.S.2d 929, 934, 180 Misc. 469.
PROTOCOLO. In Spanish law. The original
draft or writing of an instrument which remains
in the possession of the escribano, or notary.
White, New Recop. lib. 3, tit. 7, c. 5, § 2.
The term "protocolo," when applied to a single paper,
means the first draft of an instrument duly executed be-
fore a notary—the matrix,—because it is the source from
which must be taken copies to be delivered to interested
parties as their evidence of right; and it also means a
bound book in which the notary places and keeps in their
order instruments executed before him, from which copies
are taken for the use of parties interested. Downing v.
Diaz, 80 Tex. 436, 16 S.W. 53.
PROTUTOR. Lat. In the civil law. He who, not
being the tutor of a minor, has administered his
property or affairs as if he had been, whether
he thought himself legally invested with the au-
thority of a tutor or not. Mackeld. Rom. Law, §
630. He who marries a woman who is tutrix be-
comes, by the marriage, a protutor. The protutor
is equally responsible with the tutor.
PROUT PATET PER RECORDUM. As appears
by the record: In the Latin phraseology of plead-
ing, this was the proper formula for making ref-
erence to a record.
PROVABLE. Susceptible of being proved. City
Hall Building & Loan Ass'n of Newark v. Star
Corporation, 110 N.J.L. 570, 166 A. 223, 224.
PROVE. To establish or make certain; to es-
tablish a fact or hypothesis as true by satisfac-
tory and sufficient evidence. Blackstone Hall Co.
v. Rhode Island Hospital Trust Co., 97 A. 484,
487, 39 R.I. 69.
To present a claim or demand against a bankrupt or In-
solvent estate, and establish by evidence or affidavit that
the same is correct and due, for the purpose of receiving
a dividend on it. Tibbetts v. Trafton, 80 Me. 264, 14 A. 71;
In re California Pac. IL Co., 4 Fed.Cas. 1060; In re Bige-
low, 3 Fed.Cas. 343.
To establish the genuineness and due execu-
tion of a paper, propounded to the proper court
or officer, as the last will and testament of a de-
ceased person. See Probate.
PROVEN TERRITORY. In oil prospecting "prov-
en territory" means territory so situated with
reference to known producing wells as to estab-
lish the general opinion that, because of its loca-
tion in relation to them, oil is contained in it.
Minchew v. Morris, Tex.Civ.App., 241 S.W. 215,
217.
PROVER. In old Englsh law. A person who,
on being indicted of treason or felony, and ar-
raigned for the same, confessed the fact before
plea pleaded, and appealed or accused others, his
accomplices, in the same crime, in order to ob-
tain his pardon. 4 Bl.Comm. 329, 330.
PROVIDE. To make, procure, or furnish for fu-
ture use, prepare. Booth v. State, 179 Ind. 405,
100 N.E. 563, 566, L.R.A.1915B, 420, Ann.Cas.
1915D, 987. To supply; to afford; to contribute.
Keith v. Rust Land & Lumber Co., 167 Wis. 528,
167 N.W. 432, 435.
PROVIDED. The word used in introducing a
proviso (which see.) Ordinarily it signifies or ex-
presses a condition; but this is not invariable,
for, according to the context, it may import a cov-
enant, or a limitation or qualification, or a re-
straint, modification, or exception to something
which precedes. Stanley v. Colt, 5 Wall. 166, 18
L.Ed. 502; Robertson v. Caw, 3 Barb., N.Y., 418;
Attorney General v. City of Methuen, 129 N.E.
662, 665, 236 Mass. 564.
PROVIDED BY LAW. This phrase when used in
a constitution or statute generally means pre-
scribed or provided by some statute. Lawson v.
Kanawha County Court, 80 W.Va. 612, 92 S.E.
786, 789.
PROVINCE. The district into which a country
has been divided; as, the province of. Canterbury,
in England; the province of Languedoc, in France.
A dependency or colony, as, the province of New
Brunswick. Figuratively, power or .authority,
as, it is the province of the court to judge of the
law; that of the jury to decide on the facts. 1
Bl.Comm. 111; Tomlins.
PROVINCIAL CONSTITUTIONS. The decrees
of provincial synods held under divers archbish-
ops of Canterbury, from Stephen Langton, in the
reign of Henry III., to Henry Chichele, in the
reign of Henry V., and adopted also by the prov-
ince of York in the reign of Henry VL Wharton.
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PROVISIONAL
PROVINCIAL COURTS. In English law. The
several archi-episcopal courts in the two ecclesi-
astical provinces of England.
PROVINCIALE. A work on ecclesiastical law,
by William Lyndwode, official principal to Arch-
bishop Chichele in the reign of Edward IV. 4
Reeve, Eng.Law, c. 25, p. 117.
PROVINCIALIS. Lat. In the civil law. One
who has his domicile in a province. Dig. 50, 16,
190.
PROVING OF THE TENOR. In Scotch practice.
An action for proving the tenor of a lost deed.
Bell.
PROVISION. Foresight of the chance of an ev-
ent happening, sufficient to indicate that any pres-
ent undertaking upon which its assumed realiza-
tion might exert a natural and proper influence
was entered upon in full contemplation of it as
a future possibility. Appeal of Blake, 95 Conn.
194, 110 A. 833, 834.
In commercial law. Funds remitted by the
drawer of a bill of exchange to the drawee in or-
der to meet the bill, or property remaining in the
drawee's hands or due from him to the drawer,
and appropriated to that purpose.
In ecclesiastical law. A nomination by the
pope to an English benefice before it became
void; the term was afterwards indiscriminately
applied to any right of patronage exerted or us-
urped by the pope.
In French law. An allowance or alimony grant-
ed by a judge to orie of the parties in a cause for
his or her maintenance until a definite judgment
is rendered. Dalloz.
In English history. A name given to certain
statutes or acts of parliament, particularly those
intended to curb the arbitrary or usurped power of
the sovereign, and also to certain other ordinances
or declarations having the force of law. See
infra.
A term used in the reign of Henry III. to designate en-
actments of the King in Council, perhaps less solemn than
statutes. The term "statutes" was a later term, with a
changed conception of the solemnity of a statute, and is
one that cannot easily be defined. It came into use in Ed-
ward I.'s reign, supplanting "provisions," which is char-
acteristic of Henry III.'s reign, which had supplanted "as-
size," characteristic of the reigns of Henry II., Richard
and John Maitland, 2 Sel. Essays in Anglo-Am. Leg. Hist.
so.
Provisions of Merton. Another name for the
statute of Merton. See Merton, Statute of.
Provisions of Oxford. Legislative provisions
(1258) forbidding the Chancellor to issue writs,
other than those "of course" without the approval
of the executive council, as well as the king. Cer-
tain provisions made in the Parliament of Oxford,
1258, for the purpose of securing the execution of
the provisions of Magna Charta, against the in-
vasions thereof by Henry III. The government of
the country was in effect committed by these pro-
visions to a standing committee of twenty-four,
whose chief merit consisted in their representa-
tive character, and their real desire to effect an
improvement in the king's government. Brown.
Provisions of Westminster. A name given to
certain ordinances or declarations promulgated by
the barons in A. D. 1259, for the reform of various
abuses.
PROVISIONAL. Temporary; preliminary; tenta-
tive; taken or done by way of precaution or ad
interim.
PROVISIONAL ASSIGNEES. In the former prac-
tice in bankruptcy in England. Assignees to
whom the property of a bankrupt was assigned
until the regular or permanent assignees were ap-
pointed by the creditors.
PROVISIONAL COMMITTEE. A committee ap-
pointed for a temporary occasion.
PROVISIONAL COURT. A federal court with
jurisdiction and powers governed by the order
from which it derives its authority.
A provisional court established in conquered or occupied
territory by military authorities, or the provisional gov-
ernment, is a federal court deriving its existence and all
its powers from the federal government. 36 C.J.S., Federal
Courts, § 320.
PROVISIONAL GOVERNMENT. One temporar-
ily established in anticipation of and to exist and
continue until another (more regular or more
permanent) shall be organized and instituted in
its stead. Chambers v. Fisk, 22 Tex. 535.
PROVISIONAL INJUNCTION.  Sometimes,
though not correctly, used for interlocutory in-
junction.
PROVISIONAL ORDER. In English law. Under
various acts of parliament, certain public bodies
and departments of the government are author-
ized to inquire into matters which, in the ordinary
course, could only be dealt with by a private act
of parliament, and to make orders for their regu-
lation. These orders have no effect unless they
are confirmed by an act of parliament, and are
hence called "provisional orders." Several orders
may be confirmed by one act. The object of this
mode of proceeding is to save the trouble and ex-
pense of promoting a number of private bills.
Sweet.
PROVISIONAL REMEDY. A remedy provided
for present need or for the immediate occasion;
one adapted to meet a particular exigency. Par-
ticularly, a temporary process available to a plain-
tiff in a civil action, which secures him against
loss, irreparable injury, dissipation of the prop-
erty, etc., while the action is pending. Such are
the remedies by injunction, appointment of a re-
ceiver, attachment, or arrest. The term is chiefly
used in the codes of practice. Snavely v. Abbott
Buggy Co., 36 Kan. 106, 12 P. 522.
PROVISIONAL SEIZURE. A remedy known un-
der the law of Louisiana, and substantially the
same in general nature as attachment of property
in other states. Code Prac. La. 284, et seq. Set
Nolte v. His Creditors, 6 Mart. N. S. (La.) 168.
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PROVISIONES
PROVISIONES. Lat. In English history. Those
acts of parliament which were passed to curb the
arbitrary power of the crown. See Provision.
PROVISIONS. Food; victuals; articles of food
for human consumption. State v. Angelo, 71 N.H.
224, 51 A. 905; Clatsop County v. Feldschau, 99
Or. 680, 196 P. 379, 380. The word does not include
a mulch cow; Wilson v. McMillan, 80 Ga. 733, 6
S.E. 182; nor cotton; Butler v. Shiver, 79 Ga. 172,
4 S.E..115.
PROVISO. A condition or provision which is in-
serted in a deed, lease, mortgage, or contract, and
on the performance or nonperformance of which
the validity of the instrument frequently depends;
it usually begins with the word "provided."
It always implies a condition, unless subsequent words
change it to a covenant, Rich v. Atwater, 16 Conn. 419 ; but
when a proviso contains the mutual words of the parties
to a deed, it amounts to a covenant. 2 Co. 72 ; Cro.Eliz.
242.
The word "proviso" is generally taken for a condition,
but it differs from it in several respects ; for a condition
'Is usually created by the grantor or lessor, but a proviso
by the grantee or lessee. Jacob.
The mere use of technical terms which ordinarily denote
a limitation or a condition subsequent is an unsafe test of
the true nature of the estate granted ; the word "proviso"
or "provided" itself being sometimes taken as a condition,
sometimes as a limitation, and sometimes as a covenant.
Stevens v. Galveston H. & S. A. Ry. Co., Tex.Com.App., 212
S. W. 639, 644.
A limitation or exception to a grant made or
authority conferred, the effect of which is to de-
clare that the one shall not operate, or the other
be exercised, unless in the case provided. Clear-
water Tp. v. Board of Sup'rs of Kalkaska County,
187 Mich. 516, 153 N.W. 824, 827.
A clause or part of a clause in a statute, the
office of which is either to except something from
the enacting clause, or to qualify or restrain its
generality, or to exclude some possible ground of
misinterpretation of its extent. Cox v. Hart, 260
U.S. 427, 43 S.Ct. 154, 157, 67 L.Ed. 332; Riley
Pennsylvania Oil Co. v. Symmonds, 195 Mo.App.
111, 190 S.W. 1038, 1040. Strain v. East Bay Mu-
nicipal Utility Dist., 21 Cal.App.2d 281, 69 P.2d
191, 193.
A proviso is sometimes misused to introduce independent
pieces of legislation. Cox v. Hart, 43 S.Ct. 154, 157, 260
U.S. 427, 67 L.Ed. 332. Its proper use, however, is to
qualify what is affirmed in the body of the act, section, or
paragraph preceding it, or to except something from the
act, but not to enlarge the enacting clause. State Public
Utilities Commission v. Early, 285 Ill. 469, 121 N.E. 63, 66;
And it cannot be held to enlarge the scope of the statute ;
Jordan v. Town of South Boston, 138 Va. 838, 122 S.E. 265,
267.
While a proviso is commonly found at the end of the
act or section, and is usually introduced by the word
"provided," that word is not necessary, the matter and not
the form of the succeeding words controlling. Mackenzie
v. Douglas County, 81 Or. 442, 159 P. 625, 627.
The proper use of provisoes in drafting acts is explained
by Coode on Legislative Construction. The early, and, as
he thinks, the correct use, is by way of taking special cases
out of general enactments and providing for them. The
courts have generally assumed that such was the proper
mode of using a proviso. It is incorrectly used to introduce
mere exceptions to the operation of the enactment where
no special provision is made for the exception; these are
better expressed as exceptions.
Exception and proviso distinguished. See Ex-
ception.
PROVISO EST PROVIDERE PRAESENTIA ET
FUTURA, NON PR1ETERITA. Coke, 72; Vaugh.
279. A proviso is to provide for the present or fu-
ture, not the past.
PROVISO, TRIAL BY. In English practice. A
trial brought on by the defendant, in cases where
the plaintiff, after issue joined, neglects to pro-
ceed to trial; so called from a clause in the writ
to the sheriff, which directs him, in case two writs
come to his hands, to execute but one of them.
3 Bl. Comm. 357. The defendant may take out a
venire facias to the sheriff, which hath in it these
words, Proviso quod, etc., provided that if the
plaintiff shall take out any writ to that purpose,
the sheriff shall summon but one jury on them
both. Jacob; Old Nat. Brev. 159.
PROVISOR. In old English law. A provider, or
purveyor. Spelman. Also a person nominated to
be the next incumbent of a benefice (not yet va-
cant) by the pope. 4 Bl.Comm. 111. He that hath
the care of providing things necessary; but more
especially one who sued to the court of Rome for
a provision. Jacob; 25 Edw. III.
PROVISORS, STATUTE OF. A statute passed in
25 Edw. III. forbidding the Pope to nominate to
benefices, and declaring that the election of bish-
ops and other dignitaries should be free, and all
rights of patrons preserved. Taswell-Langmead,
Engl. Constit. Hist. 322. See Pr munire.
PROVOCATION. The act of inciting another to
do a particular deed. That which arouses, moves,
calls forth, causes, or occasions. Manson v. State,
14 Ga.App. 837, 82 S.E. 763, 764.
Such conduct or actions on the part of one per-
son towards another as tend to arouse rage, re-
sentment, or fury in the latter against the former,
and thereby cause him to do some illegal act
against or in relation to the person offering the
provocation. State v. Byrd, 52 S.C. 480, 30 S.E.
482.
"Provocation" which will reduce killing to manslaughter
must be of such character as will, in mind of average rea-
sonable man, stir resentment likely to cause violence, ob-
scure the reason, and lead to action from passion rather
than judgment. Wooten v. State, 171 Tenn. 362, 103 S.W.
2d 324, 326. There must be a state of passion without time
to cool placing defendant beyond control of his reason.
Commonwealth v. Geld, 282 Pa. 434, 128 A. 77, 79. Provo-
cation carries with it the idea of some physical aggression
or some assault which suddenly arouses heat and passion
in the person assaulted. State v. Hollis, 108 S.C. 442, 95
S.E. 74, 76.
PROVOKE. To excite; to stimulate; to arouse.
To irritate, or enrage. State v. Milosovich, 42 Nev.
263, 175 P. 139, 141.
PROVOKING A DIFFICULTY. The law on this
point arises only where deceased was the attack-
ing party, and his attack was brought about by the
words or acts of accused, intended to bring on
the attack, in order that advantage might be taken
thereof by him to slay his adversary and escape
the consequences. Carter v. State, 87 Tex.Cr.R.
200, 220 S.W. 335, 336.
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PROVOST. The principal magistrate of a royal
burgh in Scotland. A governing officer of certain
universities or colleges. The chief dignitary of a
cathedral or collegiate church.
In France, this title was formerly given to some
presiding judges.
PROVOST-MARSHAL. In English law, an of-
ficer of the royal navy who had the charge of
prisoners taken at sea, and sometimes also on
land.
In military law, the officer acting as the head
of the military police of any post, camp, city or
other place in military occupation, or district un-
der the reign of martial law. He or his assistants
may, at atiy time, arrest and detain for trial, per-
sons subject fo military law committing offenses,
and may carry into execution any punishments
to be inflicted in pursuance of a court martial.
PROXENETA. Lat. In the civil law. A broker;
one who , negotiated or arranged the terms of a
contract between two parties, as between buyer
and seller; one who negotiated a marriage; a
match-maker. Calvin.; Dig. 50, 14, 3.
PROXIMATE. Immediate; nearest; direct, next
in order. In its legal sense, closest in causal con-
nection. Menger v. Laur, 55 N.J.L. 205, 26 A. 180,
20 L.R.A. 61. Poore v. Edgar Bros. Co., 33 Cal.
App.2d 6, 90 P.2d 808 • 810. Next in relation to
cause and effect. Godfrey v. Vinson, 215 Ala. 166,
110 So. 13, 16.
PROXIMATE CAUSE. That which, in a natural
and continuous sequence, unbroken by any effi-
cient intervening cause, produces the injury, and
without which the result would not have occurred.
Swayne v. Connecticut Co., 86 Conn. 439, 85 A.
634, 635; Lemos v. Madden, 28 Wyo. 1, 200 P.
791, 793. That which is nearest in the order of
responsible causation. Butcher v. R. Co., 37 W.
Va. 180, 16 S.E. 457, 18 L.R.A. 519. That which
stands next in causation to the effect, not neces-
sarily in time or space but in causal relation.
Cundiff v. City of Owensboro, 193 Ky. 168, 235
S.W. 15, 16; Carlock v. Denver & R. G. R. Co., 55
Colo. 146, 133 P. 1103, 1104. The last negligent act
contributory to an injury, without which such
injury would not have resulted. Estep v. Price, 93
W.Va. 81, 115 S.E. 861, 863. The dominant cause.
Ballagh v. Interstate Business Men's Acc. Ass'n,
176 Iowa 110, 155 N.W. 241, 244, L.R.A.1917A, 1050;
The moving or producing cause. Eberhardt v.
Glasco Mut. Tel. Ass'n, 91 Kan. 763, 139 P. 416, 417,
Buchanan v. Hurd Creamery Co., 215 Iowa 415, 246
N.W. 41. The efficient cause; the one that neces-
sarily sets the other causes in operation. Balti-
more & 0. R. Co. v. Ranier, 84 Ind.App. 542, 149
N.E. 361, 364. The causes that are merely inci-
dental or instruments of a superior or controlling
agency are not the proximate causes and the re-
sponsible ones, though they may be nearer in time
to the result. It is only when the causes are inde-
pendent of each other that the nearest is, of
course, to be charged with the disaster. Blythe v.
Railway Co., 15 Colo. 333, 25 P. 702, 11 L.R.A. 615,
22 Am.St.Rep. 403; act or omission immediately
causing or failing to prevent injury; act or omis-
sion occurring or concurring with another, which,
had it not happened, injury would not have been
inflicted. Herron v. Smith Bros., 116 Cal.App. 518,
2 P.2d 1012, 1013.
"Proximate cause" is distinguishable from "immediate
cause." Missouri, K. & T. Ry. Co. of Texas v. Cardwell,
Tex.Civ.App., 187 S.W. 1073, 1076. The immediate cause
is generally referred to in the law as the nearest cause in
point of time and space, while an act or omission may be
the proximate cause of an injury without being the imme-
diate cause. Thus, where several causes combine to pro-
duce an injury, the last intervening cause is commonly re-
ferred to as the immediate cause, although some other
agency more remote in time or space may, in causal rela-
tion, be the nearer to the result, and thus be the proximate
responsible cause. Dunbar v. Davis, 32 Ga.App. 192, 122 S.
E. 895, citing, among others, Insurance Co. v. Boon, 95 U.
S. 117, 130, 24 L.Ed. 395; Terry Shipbuilding Corp. v. Grit-
flan, 112 S.E. 374, 153 Ga. 390. Moreover, there may be
two or more proximate causes, but only one immediate
cause. Thomas v. Chicago Embossing Co., 307 Ill. 134,
138 N.E. 285, 287; American Stone Ballast Co. v. Mar-
shall's Adm'r, 206 Ky. 133, 266 S.W. 1051, 1052. But the
two terms are sometimes used interchangeably. Wilczyn-
ski v. Milwaukee Electric Ry. & Light Co., 171 Wis. 508, 177
N.W. 876, 877; but see Wright v. Greenwood Telephone
Co., 108 S.C. 84, 93 S.E. 398, 399; Knight v. Wessler, 67
Utah, 354, 248 P. 132, 133. See, also, Immediate Cause.
PROXIMATE CONSEQUENCE OR RESULT.
One which succeeds naturally in the ordinary
course of things. Swaim v. Chicago, R. I. & P.
Ry. Co., 187 Iowa 466, 174 N.W. 384, 386. A conse-
quence which, in addition to being in the train
of physical causation, is not entirely outside the
range of expectation or probability, as viewed by
ordinary men. The Mars, D.C.N.Y., 9 F.2d 183,
184. One ordinarily following from the negligence
complained of, unbroken by any independent
cause, which might have been reasonably fore-
seen. One which a prudent and experienced man,
fully acquainted with all the circumstances which
in fact existed, would, at time of the negligent
act, have thought reasonably possible to follow, if
it had occurred to his mind. Coast S. S. Co. v.
Brady, C.C.A.Ala., 8 F.2d 16, 19. A mere possibil-
ity of the injury is not sufficient, where a reason-
able man would not consider injury likely to re-
sult from the act as one of its ordinary and prob-
able results.
PROXIMATE DAMAGES. See Damages.
PROXIMATELY. Directly or immediately. Ken-
tucky Traction & Terminal Co. v. Bain, 161 Ky. 44,
170 S.W. 499, 501. Pertaining to that which in an
ordinary natural sequence produces a specific
result, no independent disturbing agency inter-
vening. Weaver v. Landis, 66 Cal.App.2d 34, 151
P.2d 884, 886.
PROXIMITY. Kindred between two persons.
Dig. 38, 16, 8. Quality or state of being next in
time, place, causation, influence, etc.; immediate
nearness. Webster, Dict.
PROXIMUS EST CUI NEMO ANTECEDIT, SU-
PREMUS EST QUEM NEMO SEQUITUR. He
is next whom no one precedes; he is last whom
no one follows. Dig. 50, 16, 92.
PROXY. (Contracted from procuracy.) A per-
son who is substituted or deputed by another to
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represent him and act for him, particularly in
some meeting or public body. An agent repre-
senting and acting for principal. Also the instru-
ment containing the appointment of such person.
Manson v. Curtis, 223 N.Y. 313, 119 N.E. 559, 561,
Ann.Cas.1918E, 247; Cliffs Corporation v. United
States, C.C.A.Ohio, 103 F.2d 77, 80.
In ecclesiastical law. A person who is appoint-
ed to manage another man's affairs in the ec-
clesiastical courts; a judicial proctor.
Also an annual payment made by the parochial
clergy to the bishop, on visitations. Tomlins.
PRUDENCE. Carefulness, precaution, attentive-
ness, and good judgment, as applied to action or
conduct. That degree of care required by the
exigencies or circumstances under which it is to
be exercised. Cronk v. Railway Co., 52 N.W. 420,
3 S.D. 93. This term, in the language of the law,
is commonly associated with "care" and "dili-
gence" and contrasted with "negligence." See
those titles.
PRUDENT. Sagacious in adapting means to end,
circumspect in action, or in determining any line
of conduct, practically wise, judicious, careful, dis-
creet, circumspect, sensible. Tureen v. Peoples
Motorbus Co. of St. Louis, Mo.App., 97 S.W.2d
847, 848. In defining negligence, practically syn-
onymous with cautious. Malcolm v. Mooresville
Cotton Mills, 191 N.C. 727, 133 S.E. 7, 9; Hurley
v. Gus Blass Co., 191 Ark. 917, 88 S.W.2d 850, 851.
PRUDENTER AGIT QUI PRZECEPTO LEGIS
OBTEMPERAT. 5 Coke, 49. He acts prudently
who obeys the command of the law.
PRUDENTIAL AFFAIRS. Within the meaning
of a statute authorizing the making of by-laws
by municipalities for the directing and managing
of their prudential affairs, this term includes
those matters for the necessary convenience of
the inhabitants. Clarke v. City of Fall River, 219
Mass. 580, 107 N.E. 419, 421.
PRUDHOMMES, PRODES HOMMES. This word
was used in early Norman times, and before, in
a general sense to signify freeholders or respect-
able burgesses; sometimes a special body of such
persons acting as magistrates or judges. Black
Book of Adm. IV, 186. There were prudhommes
of the sea; of merchants; of the corporation of
Barcelona; and of the gild of coopers. Usually
two sat.
PRYK. A kind of service of tenure. Blount says
it signifies an old-fashioned spur with one point
only, which the tenant, holding land by this ten-
ure, was to find for the king. Wharton.
PSEUDO. False, counterfeit, pretended, spurious.
State v. Skinner, 37 Nev. 107, 139 P. 773, 776.
PSEUDOCYESIS. In medical jurisprudence. A
frequent manifestation of hysteria in women, in
which the abdomen is inflated, simulating preg-
nancy: the patient aiding in the deception.
PSEUDOGRAPH. False writing.
PSYCHO-DIAGNOSIS. In medical jurisprudence.
A method of investigating the origin and cause of
any given disease or morbid condition by exam-
ination of the mental condition of the patient,
the application of various psychological tests, and
an inquiry into the past history of the patient,
with a view to its bearing on his present psychic
state.
PSYCHOLOGICAL FACT. In the law of evi-
dence. A fact which can only be perceived men-
tally; such as the motive by which a person is.
actuated. Burrill, Circ. Ev. 130, 131.
PSYCHONEUROSIS. See Insanity.
PSYCHOPATH. Person having mental disorder.
More commonly, mental disorder not amounting
to insanity or taking the specific form of a psycho-
neurosis, but characterized by a defect of char-
acter or personality, eccentricity, emotional in-
stability, inadequacy or perversity of conduct, un-
der conceit and suspiciousness, or lack of common
sense, social feeling, self-control, truthfulness, en-
ergy, or persistence. Mutual Life Ins. Co. v. Frost,
C.C.A.R.I., 164 F.2d 542, 545.
Synonymous with "sociopathic personality"
PSYCHOSIS. A disease of the mind; especially,
a functional mental disorder, that is, one unat-
tended with structural changes in the brain. Dav-
is v. State, 153 Ga. 154, 112 S.E. 280, 282. See
Insanity.
PSYCHOTHERAPY. A method or system of al-
leviating or curing certain forms of disease, par-
ticularly diseases of the nervous system or such
as are traceable to nervous disorders, by sugges-
tion, persuasion, encouragement, the inspiration
of hope or confidence, the discouragement of mor-
bid memories, associations, or beliefs, and other
similar means addressed to the mental state of
the patient, without (or sometimes in conjunc-
tion with) the administration of drugs or other
physical remedies.
PTOMAINE. In medical jurisprudence. An alka-
loidal product of the decomposition or putrefac-
tion of albuminous substances, as, in animal and
vegetable tissues. Ptomaines are sometimes poi-
sonous, but not invariably. Examples of poison-
ous ptomaines are those occurring in putrefying
fish and the tyrotoxicons of decomposing milk and
milk products. They are sometimes found in a
less harmful form in preserved vegetable matter.
Drury v. Armour & Co., 140 Ark. 371, 216 S.W. 40,
42.
PUBERTY. The earliest age at which persons
are capable of begetting or bearing children.
Webster, Dict.
In the civil and common law, the age at which
one becomes capable of contracting marriage. It
is in boys fourteen, and in girls twelve years.
Ayliffe, Pand. 63; Toullier, Dr. Civ. Fr. tom. 5, p.
100; Inst. 1, 22; Dig. 1, 7, 40, 1; Code 5, 60, 3;
•
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1 B1.Comm. 436; 2 Kent, Comm. 78; State v.
Pierson, 44 Ark. 265. Otherwise called the "age of
consent to marriage."
PUBLIC, n. The whole body politic, or the ag-
gregate of the citizens of a state, district, or muni-
cipality. Knight v. Thomas, 93 Me. 494, 45 A. 499.
The inhabitants of a state, county, or community.
People v. Turnbull, 184 Ill.App. 151, 155; Com-
monwealth v. Bosworth, 257 Mass. 212, 153 N.E.
455, 457. In one sense, everybody; and according-
ly the body of the people at large; the communi-
ty at large, without reference to the geographical
limits of any corporation like a city, town, or
county; the people. In another sense the word
does not mean all the people, nor most of the
people, nor very many of the people of a place,
but so many of them as contradistinguishes them
from a few. Accordingly, it has been defined or
employed as meaning the inhabitants of a par-
ticular place; all the inhabitants of a particular
place; the people of the neighborhood. People v.
Powell, 280 Mich. 699, 274 N.W. 372, 373, 111 A.L.
R. 721; State ex rel. Maher v. Baker, 88 Ohio St.
165, 102 N.E. 732, 736. Also, a part of the inhabit-
ants of a community. Davis v. People, 79 Colo.
642, 247 P. 801, 802.
PUBLIC, adj. Pertaining to a state, nation, or
whole community; proceeding from, relating to,
or affecting the whole body of people or an entire
community. Open to all; notorious. Common to
all or many; general; open to common use. Mor-
gan v. Creep 46 Vt. 786, 14 Am.Rep. 640; Crane v.
Waters, C.C.Mass., 10 F. 621. Belonging to the
people at large; relating to or affecting the whole
people of a state, nation, or community; not limit-
ed or restricted to any particular class of the
community. People v. Powell, 280 Mich. 699, 274
N.W. 372, 373, 111 A.L.R. 721.
A distinction has been made between the terms "public"
and "general." They are sometimes used as synonymous.
The former term is applied strictly to that which concerns
all the citizens and every member of the state ; while the
latter includes a lesser, though still a large, portion of the
community. 1 Greenl.Ev. § 128.
As to public "Accounts," "Acknowledgment,"
"Act," "Administrator," "Agent," "Attorney,"
"Auction," "Breach," "Blockade," "Boundary,"
"Bridge," "Business," "Capacity," "Carrier,"
"Chapel," "Charge," "Charity," "Company," "Cor-
poration," "Debt," "Document," "Domain," "Ease-
ment," "Enemy," "Ferry," "Funds," "Good,"
"Grant," "Health," "Highway," "Holiday," "Hos-
pital," "House," "Indecency," "Institution," "Mar-
ket," "Minister," "Money," "Necessity," "Notice,"
"Nuisance," "Office," "Officer," "Peace," "Policy,"
"Pond," "Printing," "Property," "Prosecutor,"
"Record," "Revenue," "River," "Road," "Sale,"
"School," "Seal," "Sewer," "Square," "Stock,"
"Store,"  "Tax," "Things," "Thoroughfare,"
"Trial," "Trust," "Trustee," "Verdict," "Vessel,"
"War," "Works," "Worship," and "Wrongs," see
those titles.
Public appointments. Public offices or stations
which are to be filled by the appointment of in-
dividuals, under authority of law, instead of by
election.
Black's Law Dictionary Revised 4th Ed.-88
Public building. One of which the possession
and use, as well as the property in it, are in the
public. Pancoast v. Troth, 34 N.J.Law, 383. Any
building held, used, or controlled exclusively for
public purposes by any department or branch of
government, state, county, or municipal, without
reference to the ownership of the building or of
the realty upon which it is situated. Shepherd v.
State, 16 Ga.App. 248, 85 S.E. 83. A building be-
longing to or used by the public for the transac-
tion of public or quasi public business. Lewis
v. Commonwealth, 197 Ky. 449, 247 S.W. 749, 750.
Public character. An individual who asks for
and desires public recognition, such as a states-
man, author, artist, or inventor. Corliss v. E. W.
Walker Co., C.C.Mass., 64 F. 280, 31 L.R.A. 283.
Public convenience. In a statute requiring the
issuance of a certificate of public convenience and
necessity by the Public Utilities Commission for
the operation of a motorbus line, "convenience"
is not used in its colloquial sense as synonymous
with handy Qr easy of access, but in accord with
its regular meaning of suitable and fitting, and
"public convenience" refers to something fitting
or suited to the public need. Abbott v. Public
Utilities Commission, 48 R.I. 196, 136 A. 490, 491.
Public interest. Something in which the public,
the community at large, has some pecuniary in-
terest, or some interest by which their legal rights
or liabilities are affected. It does not mean any-
thing so narrow as mere curiosity, or as the in-
terests of the particular localities, which may be
affected by the matters in question. State v.
Crockett, 86 Okl. 124, 206 P. 816, 817.
If by public permission one is making use of public
property and he chances to be the only one with whom the
public can deal with respect to the use of that property, his
business is affected with a public interest which requires
him to deal with the public on reasonable terms. Cooley,
Const.Lim. 746. The circumstances which clothe a particu-
lar kind of business with a "public interest," as to be sub-
ject to regulation, must be such as to create a peculiarly
close relation between the public and those engaged in it
and raise implications of an affirmative obligation on their
part to be reasonable in dealing with the public. One does
not devote his property or business to a public use, or
clothe it with a public interest, merely because he makes
commodities for and sells to the public in common callings
such as those of the butcher, baker, tailor, etc. Chas.
Wolff Packing Co. v. Court of Industrial Relations of State
of Kansas, 43 S.Ct. 630, 633, 262 U.S. 522, 67 L.Ed. 1103, 27
A.L.R. 1280. A business is not affected with a public in-
terest merely because it is large, or because the public
has concern in respect of its maintenance, or derives bene-
fit, accommodation, ease, or enjoyment from it. Tyson
& Bro.-United Theatre Ticket Offices v. Banton, 47 S.Ct.
426, 273 U.S. 418, 71 L.Ed. 718, 58 A.L.R. 1236.
Public lands. The general public domain; un-
appropriated lands; lands belonging to the Unit-
ed States and which are subject to sale or other
disposal under general laws, and not reserved or
held back for any special governmental or pub-
lic purpose. Newhall v. Sanger, 92 U.S. 763, 23
L.Ed. 769; State v. Telegraph Co., 52 La.Ann.
1411, 27 So. 796. See Lands.
Public laundry. This term, in Labor Law, N. Y.
§ 296 (Consol. Laws, c. 31), includes a laundry
doing laundry work that is ultimately distributed
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to the public, and is not limited to laundry doing
custom work only. Van Zandt's, Inc., v. Depart-
ment of Labor of State of New York, 129 Misc.
747, 222 N.Y.S. 450, 451.
Public lavatories. Such as are open to all who
may choose to use them. Irvine v. Common-
wealth, 124 Va. 817, 97 S.E. 769.
The term may, however, include a washroom in a lodg-
ing house for men guests only. City of Chicago v. Mc-
Guire, 185 Ill. App. 589, 590.
Public law. That branch or department of law
which is concerned with the state in its political
or sovereign capacity, including constitutional and
administrative law, and with the definition, regu-
lation, and enforcement of rights in cases where
the state is regarded as the subject of the right
or object of the duty,—including criminal law
and criminal procedure,—and the law of the state,
considered in its quasi private personality,  e.,
as capable of holding or exercising rights, or ac-
quiring and dealing with property, in the charac-
ter of an individual. Holl. Jur. 106, 300. That
portion of law which is concerned with political
conditions; that is to say, with the powers, rights,
duties, capacities, and incapacities which are pe-
culiar to political superiors, supreme and subor-
dinate. Aust. Jur. In one sense, a designation
given to international law, as distinguished from
the laws of a particular nation or state. In an-
other sense, a law or statute that applies to the
people generally of the nation or state adopting
or enacting it, is denominated a public law, as
contradistinguished from a private law, affecting
only an individual or a small number of persons.
Morgan v. Cree, 46 Vt. 773, 14 Am.Rep. 640.
Public offense. An act or omission forbidden by
law, and punishable as by law provided. Ford
v. State, 7 Ind.App. 567, 35 N.E. 34.
Public passage. A right, subsisting in the pub-
lic, to pass over a body of water, whether the
land under it be public or owned by a private
person. This term is synonymous with public
highway, with this difference: by the latter is
understood a right to pass over the land of an-
other; by the former is meant the right of going
over the water which is on another's land. Carth.
193; Hamm. N. P. 195.
Public place. A place to which the general
public has a right to resort; not necessarily a
place devoted solely to the uses of the public,
but a place which is in point of fact public rath-
er than private, a place visited by many persons
and usually accessible to the neighboring public.
People v. Whitman, 178 App.Div. 193, 165 N.Y.S.
148, 149. Roach v. Eugene, 23 Or. 376, 31 P. 825.
Any place .so situated that what passes there can
be seen by any considerable number of persons,
if they happen to look. Steph. Cr. L. 115. Also,
a place in which the public has an interest as af-
fecting the safety, health, morals, and welfare
of the community. A place exposed to the public,
and where the public gather together or pass to
and fro. Lewis v. Commonwealth, 197 Ky. 449,
247 S.W. 749, 750.
Public purpose. In the law of taxation, emi-
nent domain, etc., this is a term of classification
to distinguish the objects for which, according to
settled usage, the government is to provide, from
those which, by the like usage, are left to private
interest, inclination, or liberality. People v. Sal-
em Tp. Board, 20 Mich. 485, 4 Am.Rep. 400; Black,
Const. Law (3d Ed.) p. 454, et seq.; Hagler v.
Small, 307 Ill. 460, 138 N.E. 849, 854. The term
is synonymous with governmental purpose. State
v. Dixon, 66 Mont. 76, 213 P. 227, 231. As employ-
ed to denote the objects for which taxes may be
levied, it has no relation to the urgency of the
public need or to the extent of the public benefit
which is to follow; the essential requisite being
that a public service or use shall affect the in-
habitants as a community, and not merely as in-
dividuals. Stevenson v. Port of Portland, 82 Or.
576, 162 P. 509, 511. A public purpose or public
business has for its objective the promotion of the
public health, safety, morals, general welfare,
security, prosperity, and contentment of all the
inhabitants or residents within a given political
division, as, for example, a state, the sovereign
powers of which are exercised to promote such
public purpose or public business. Green v. Fra-
zier, 44 N.D. 395, 176 N.W. 11, 17. See, also, City
of Tombstone y. Macia, 30 Ariz. 218, 245 P. 677,
679, 46 A.L.R. 828.
Public service. A term applied in modern us-
age to the objects and enterprises of certain kinds
of corporations, which specially serve the needs
of the general public or conduce to the comfort
and convenience of an entire community, such as
railroad, gas, water, and electric light companies;
and companies furnishing motor vehicle trans-
portation. Harrison v. Big Four Bus Lines, 217
Ky. 119, 288 S.W. 1049. A public service or quasi
public corporation is one private in its ownership,
but which has an appropriate franchise from the
state to provide for a necessity or convenience of
the general public, incapable of being furnished
by private competitive business, and dependent
for its exercise on eminent domain or govern-
mental agency. Attorney General v. Haverhill
Gaslight Co., 215 Mass. 394, 101 N.E. 1061, 1063,
Ann.Cas.1914C, 1266. It is one of a large class
of private corporations which on account of spe-
cial franchises conferred on them owe a duty to
the public which they may be compelled to per-
form. State ex rel. Coco v. Riverside Irr. Co., 142
La. 10, 76 So. 216, 218.
Public service commission. A board or com-
mission created by the legislature to exercise pow-
er of supervision or regulation over public utili-
ties or public service corporations. Railroad Com-
mission of Alabama v. Northern Alabama Ry. Co.,
182 Ala. 357, 62 So. 749. Such a commission is
a legal, administrative body, provided for the ad-
ministration of certain matters within the police
power, with power to make regulations as to
certain matters when required for the public
safety and convenience, and to determine facts
on which existing laws shall operate. Bessette v.
Goddard, 87 Vt. 77, 88 A. 1, 3. People ex rel. New
York Telephone Co. v. Public Service Commission,
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PUBLIC UTILITY
Second District, 141 N.Y.S. 1018, 1022, 157 App.
Div. 156.
Public, true, and notorious. The old form by
which charges in the allegations in the ecclesias-
tical courts were described at the end of each
particular.
Public use, in constitutional provisions restrict-
ing the exercise of the right to take private prop-
erty in virtue of eminent domain, means a use
concerning the whole community as distinguished
from particular individuals. But each and every
member of society need not be equally interested
in such use, or be personally and directly affect-
ed by it; if the object is to satisfy a great public
want or exigency, that is sufficient. Rindge Co. v.
Los Angeles County, 43 S.Ct. 689, 692, 262 U.S.
700, 67 L.Ed. 1186. The term may be said to mean
public usefulness, utility, or advantage, or what is
productive of general benefit. Williams v. City of
Norman, 85 Okl. 230, 205 P. 144, 148. But it is
not synonymous with public benefit. Ferguson
v. Illinois Cent. R. Co., 202 Iowa, 508, 210 N.W.
604, 606. It may be limited to the inhabitants of
a small or restricted locality, but must be in
common, and not for a particular individual. Po-
cantico Water Works Co. v. Bird, 130 N.Y. 249, 29
N.E. 246. The use must be a needful one for the
public, which cannot be surrendered without ob-
vious general loss and inconvenience. Jeter v.
Vinton-Roanoke Water Co., 114 Va. 769, 76 S.E.
921, 925, Ann.Cas.1914C, 1029.
In patent law, a public use is entirely different
from a use by the public. Los Angeles Lime Co.
v. Nye, C.C.A.Cal., 270 F. 155, 162. If an inventor
allows his machine to be used by other persons
generally, either with or without compensation,
or if it is, with his consent, put on sale for such
use, then it will be in "public use" and on public
sale. David E. Kennedy v. United Cork Cos., C.
C.A.N.Y., 225 F. 371, 372. Experimental use is nev-
er "public use" if conducted in good faith to test
the qualities of the invention, and for no other
purpose not naturally incidental. Union Sulphur
Co. v. Freeport Texas Co., D.C.Del., 251 F. 634,
651.
PUBLIC UTILITY. A business or service which
is engaged in regularly supplying the public with
some commodity or service which is of public con-
sequence and need, such as electricity, gas, water,
transportation, or telephone or telegraph service.
Gulf States Utilities Co. v. State, Tex.Civ.App., 46
S.W.2d 1018, 1021. Any agency, instrumentality,
business industry or service which is used or con-
ducted in such manner as to affect the community
at large, that is which is not limited or restricted
to any particular class of the community. State
Public Utilities Commission v. Monarch Refrig-
erating Co., 267 Ill. 528, 108 N.E. 716, Ann.Cas.
1916A, 528. The test for determining if a concern
is a public utility is whether it has held itself
out as ready, able . and willing to serve the public.
Humbird Lumber Co. v. Public Utilities Commis-
sion, 39 Idaho, 505, 228 P. 271. The term implies
a public use of an article, product, or service,
carrying with it the duty of the producer or manu-
facturer, or one attempting to furnish the service,
to serve the public and treat all persons alike,
without discrimination. Highland Dairy Farms
Co. v. Helvetia Milk Condensing Co., 308 Ill. 294,
139 N.E. 418, 420. It is synonymous with "public
use," and refers to persons or corporations charg-
ed with the duty to supply the public with the
use of property or facilities owned or furnished
by them. Buder v. First Nat. Bank in St. Louis,
C.C.A.Mo., 16 F.2d 990, 992. To constitute a true
"public utility," the devotion to public use must
be of such character that the public generally, or
that part of it which has been served and which
has accepted the service, has the legal right to
demand that that service shall be conducted, so
long as it is continued, with reasonable efficiency
under reasonable charges. Richardson v. Rail-
road Commission of California, 191 Cal. 716, 218
P. 418, 420. The devotion to public use must be
of such character that the product and service
is available to the public generally and indis-
criminately, or there must be the acceptance by
the utility of public franchises or calling to its
aid the police power of the state. Southern Ohio
Power Co. v. Public Utilities Commission of Ohio,
110 Ohio St. 246, 143 N.E. 700, 701, 34 A.L.R. 171.
Line
Chief or primary conductors to exclusion of
subsidiary transmission facilities. Jersey Central
Power & Light Co. v. State Board of Tax Appeals,
131 N.J.L. 565, 37 A.2d 111, 112, 113; "lines" as
used in sense of "mains". Jersey Central Power
& Light Co. v. State Board of Tax Appeals, 130
N.J.L. 364, 33 A.2d 355, 356; main or principal
conduit. Jersey City v. Martin, 20 N.J.Misc. 270,
26 A.2d 574, 576.
Electric company's line as referring to poles.
Central States Electric Co. v. Pocahontas County,
Iowa, 223 N.W. 236, 240.
Railroad or Other Carriers
A line is a series of public .conveyances, as
coaches, steamers, packets and the like passing
to and fro between places with regularity. The
word is broad enough to include line of motor
freight trucks operating between fixed termini on
regular schedule and route. "Stage line," "rail-
road line" and "automobile line" are expressions
which are ordinarily understood to mean a regu-
lar line of vehicles for public use operating be-
tween distant points or between different cities.
Bruce Transfer Co. v. Johnston, 227 Iowa 50, 287
N.W. 278, 280. A "line" is an operating unit un-
der one management over a designated way or
right of way. Regenhardt Const. Co. v. Southern
Ry. in Kentucky, 297 Ky. 840, 181 S.W.2d 441, 444.
A number of public conveyances, as carriages or
vessels plying regularly under one management
over a certain route, is a "line." Tuggle v. Parker,
159 Kan. 572, 156 P.2d 533, 534. Everything essen-
tial to the operation and maintenance of a rail-
road transportation system is a constituent part
of the "line." City of Pocatello v. Ross, 51 Idaho
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PUBLIC UTILITY
395, 6 P.2d 481, 482. The words "lines" and "prop-
erty" are convertible terms. In re Central States
Freight Corporation, C.C.A.Mich., 45 F.2d 73, 74.
Telephone or telegraph company's "lines" in-
clude not only wires and poles, but also right to
have them supported by land to which they are
attached. City of Fort Worth v. Southwestern
Bell Telephone Co., C.C.A.Tex., 80 F.2d 972, 976.
Public ways. Highways (q. v.).
Public weigher. This term in a statute refers
to the official who has been elected, appointed, or
qualified and holding office. Interstate Compress
Co. v. Colley, 88 Okl. 42, 211 P. 413, 414.
Public welfare. The prosperity, well-being, or
convenience of the public at large, or of a whole
community, as distinguished from the advantage
of an individual or limited class. Shaver v. Star-
rett, 4 Ohio St. 499. It embraces the primary
social interests of safety, order, morals, economic
interest, and non-material and political interests.
State v. Hutchinson Ice Cream Co., 168 Iowa, 1,
147 N.W. 195, 199, L.R.A.1917B, 198. In the de-
velopment of our civic life, the definition of "pub-
lic welfare" has also developed until it has been
held to bring within its purview regulations for
the promotion of economic welfare and public
convenience. Pettis v. Alpha Alpha Chapter of
Phi Beta Pi, 115 Neb. 525, 213 N.W. 835, 838.
PUBLICAN. In the civil law. A farmer of the
public revenue; one who held a lease of some
property from the public treasury. Dig. 39, 4,
1, 1; Dig. 39:4, 12, 3; Dig. 39, 4, 13.
In English law. A person authorized by license
to keep a public house, and retail therein, for con-
sumption on or off the premises where sold, all
intoxicating liquors; also termed "licensed vic-
tualler." Wharton. A victualer; one who serves
food or drink prepared for consumption on the
premises. Friend v. Childs Dining Hall Co., 231
Mass. 65, 120 N.E. 407, 409, 5 A.L.R. 1100.
PUBLICANUS, Lat. In Roman law. A farmer
of the customs; a. publican. Calvin.
PUBLICATION. To make public; to make
known to people in general; to bring before pub-
lic; to exhibit, display, disclose or reveal. Tif-
fany Productions v. Dewing, D.C.Md., 50 F.2d 911,
914. The act of publishing anything; offering it
to public notice, or rendering it accessible to pub-
lic scrutiny. Linley v. Citizens' Nat. Bank of An-
derson, 108 S.C. 372, 94 S.E. 874, 877, National
Geographic Soc. v. Classified Geographic, D.C.
Mass., 27 F.Supp. 655, 659. An advising of the
public; a making known of something to them
for a purpose. Associated Press v. International.
News Service, C.C.A.N.Y., 245 F. 244, 250. It im-
plies the means of conveying knowledge or no-
tice. Daly v. Beery, 45 N.D. 287, 178 N.W. 104,
106.
As descriptive of the publishing of laws and ordinances,
it means printing or otherwise reproducing copies of them
and distributing them in such a manner as to make their
contents easily accessible to the public; it forms no part
of the enactment of the law. "Promulgation," on the
other hand, seems to denote the proclamation or announce-
ment of the edict or statute as a preliminary to its acquir-
ing the force and operation of law. But the two terms are
often used interchangeably. Chicago v. McCoy, 136 Ill.
344, 26 N.E. 363, 11 L.R.A. 413; For the distinction be-
tween them, see Toullier, Dr. Civ. Fr. titre Preliminaire,
n. 59.
In connection with the publication of rates, the term may
include both the promulgation and the distribution of the
rates in printed form. City of Pittsburg v. Pittsburg Rys.
Co., 259 Pa. 558, 103 A. 372, 374.
Copyright Law
The act of making public a book, writing, chart,
map, etc.; that is, offering or communicating
it to the public by the sale or distribution of cop-
ies. Keene v. Wheatley, 14 Fed.Cas. ISO; Jewel-
ers' Mercantile Agency v. Jewelers' Weekly Pub.
Co., 155 N.Y. 241, 49 N.E. 872, 41 L.R.A. 846, 63
Am.St.Rep. 666. As employed in the Copyright
Law, means a general publication rather than a
limited one. Copyright Act 1909, § 2, 17 U.S.C.A.
§ 2.
"Limited publication" is communication of a literary
composition to a select number upon condition, express
or implied, that it is not intended to be thereafter common
property. To constitute "publication," within Copyright
Law, there must be such a dissemination of the work of
art itself among the public as to justify the belief that it
took place with the intention of rendering such work com-
mon property. Copyright Law 1909, § 2, 17 U.S.C.A. a 2.
Berry v. Hoffman, 125 Pa.Super. 261, 189 A. 516.
Law of Libel
The act of making the defamatory matter
known publicly, of disseminating it, or communi-
cating it to one or more persons. Wilcox v. Moon,
63 Vt. 481, 22 A. 80; Gambrill v. Schooley, 93 Md.
48, 48 A. 730, 52 L.R.A. 87, 86 Am.St.Rep. 414. The
reduction of libelous matter to writing and its de-
livery to any one other than the person injurious-
ly affected thereby.
The dictation to a stenographer of a libelous letter is
ordinarily a publication of the libel. Nelson v. Whitten.
D.C.N.Y., 272 F. 135, 139; But see Owen v. Pub. Co., 32
App.Div. 465, 53 N.Y.S. 1033. Every repetition of defama-
tory words is a new publication and constitutes a new
cause of action.
Law of Wills
The formal declaration made by a testator at
the time of signing his will that it is his last will
and testament. 4 Kent, Comm. 515, and note.
In re Simpson, 56 How.Prac. (N.Y.) 134; Comp-
ton v. Mitton, 12 N.J.Law, 70. The act or acts of
the testator by which he manifests that it is his
intention to give effect to the paper as his last
will and testament; any communication indicat-
ing to the witness that the testator intends to give
effect to the paper as his will, by words, sign,
motion, or conduct. In re Spier's Estate, 99 Neb.
853, 157 N.W. 1014, 1016, L.R.A.1916E, 692,
Practice
In the practice of the states adopting the re-
formed procedure, and in some others, publica-
tion of a summons is the process of giving it cur-
rency as an advertisement in a newspaper, under
the conditions prescribed by law, as a means of
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PUERITIA
giving notice of the suit to a defendant upon
whom personal service cannot be made.
In equity practice. The making public the dep-
ositions taken in a suit, which have previously
been kept private in the office of the examiner.
Publication is said to pass when the depositions
are so made public, or openly shown, and copies
of them given out, in order to the. hearing of the
cause. 3 Bl.Comm. 450.
PUBLICI JURIS. Lat. Of public right. The
word "public" in this sense means pertaining to
the people, or affecting the community at large;
that which concerns a multitude of people; and
the word "right," as so used, means a well-found-
ed claim; an interest; concern; advantage;
benefit. State v. Lyon, 63 Okl. 285, 165 P. 419, 420.
This term, as applied to a thing or right, means that it
Is open to or exercisable by all persons. It designates
things which are owned by "the public;" that is, the en-
tire state or community, and not by any private person.
When a thing is common property, so that any one can
make use of it who likes, it is said to be publici juris; as
in the case of light, air, and public water. Sweet.
PUBLICIANA. In the civil law. The name of
an action introduced by the prmtor Publicius, the
object of which was to recover a thing which had
been lost. Its effects were similar to those of
our action of trover. Mackeld. Rom. Law, § 298.
See Inst. 4, 6, 4; Dig. 6, 2, 1, 16.
PUBLICIST. One versed in, or writing upon, pub-
lic law, the science and principles of government,
or international law.
PUBLICITY. The doing of a thing in the view
of all persons who choose to be present.
PUBLICLY. Openly. Winters v. Duncan, Tex.
Civ.App., 220 S.W. 219, 220. In public, well known,
open, notorious, common, or general, as opposed
to private, secluded, or secret. Fairchild v. U. S.,
C.C.A.S.D., 265 F. 584, 586.
PUBLICUM JUS. Lat. In the civil law. Public
law; that law which regards the state of the
commonwealth. Inst. 1, 1, 4.
PUBLISH. To make public; to circulate; to
make known to people in general. U. S. v. Balti-
more Post Co., D.C.Md., 2 F.2d 761, 764; In re
Willow Creek, 74 Or. 592, 144 P. 505, 515. To is-
sue; to put into circulation. In re Willow Creek,
74 Or. 592, 144 P. 505, 515. To utter; to present
(a forged instrument) for payment. Smith v.
State, 13 Ga.App. 663, 79 S.E. 764, 766; State v.
Hobl, 108 Kan. 261, 194 P. 921, 924. To declare
or assert, directly or indirectly, by words or ac-
tions, that a forged instrument is genuine. Peo-
ple v. Bradford, 84 Cal.App. 707, 258 P. 660, 662.
An advising of the public or making known of
something to the public for a purpose. Estill
County v. Noland, 295 Ky. 753, 175 S.W.2d 341, 346.
To "publish" a libel is to make it known to any person
other than the person libeled. Age-Herald Pub. Co. v.
Huddleston, 207 Ala. 40, 92 So. 193, 197, 37 A.L.R. 898; to
exhibit or expose the libelous matter. State v. Moore, 140
La. 281, 72 So. 965, 971.
To "publish" a newspaper ordinarily means to compose,
print, issue, and distribute it to the public, and especially
its subscribers, at and from a certain place. To "print"
may therefore refer only to the mechanical work of produc-
tion. In re Monrovia Evening Post, 199 Cal. 263, 248 P.
1017, 1019, and constitute a narrower term than "publish."
In re Publishing Docket in Local Newspaper, 266 Mo. 48,
187 S. W. 1174, 1175.
PUBLISHER. One who by himself or his agent
makes a thing publicly known. One whose busi-
ness is the manufacture, promulgation, and sale
of books, pamphlets, magazines, newspapers, or
other literary productions. One who publishes,
especially one who issues, or causes to be issued,
from the press, and offers for sale or circulation
matter printed, engraved, or the like. Brokaw
v. Cottrell, 114 Neb. 858, 211 N.W. 184, 187.
PUDENDUM. The external female sexual organ.
State v. Wisdom, 122 Or. 148, 257 P. 826, 830.
PUDICITY. Chastity; purity; continence; mod-
esty; the abstaining from all unlawful carnal
commerce or connection.
PUDZELD. In old English law. Supposed to be
a corruption of the Saxon "wudgeld," (woodgeld,)
a freedom from payment of money for taking
wood in any forest. Co. Litt. 233a.
PUEBLO. In Spanish law. People; all the in-
habitants of any country or place, without distinc-
tion. A town, township, or municipality. White,
New Recop. b. 2, tit. 1, c. 6, § 4. A small settle-
ment or gathering of people, a steady community;
the term applies equally whether the settlement
be a small collection of Spaniards or Indians.
Pueblo of Santa Rosa v. Fall, App.D.C., 12 F.2d
332, 335.
This term "pueblo," in its original signification, means
"people" or "population," but is used in the sense of the
English word "town." It has the indefiniteness of that
term, and, like it, is sometimes applied to a mere collec-
tion of individuals residing at a particular place, a settle-
ment or village, as well as to a regularly organized munici-
pality. Trenouth v. San Francisco, 100 U.S. 251, 25 L.Ed.
626.
PUER. Lat. In the civil law. A child; one of
the age from seven to fourteen, including, in this
sense, a girl. But it also meant a "boy," as dis-
tinguished from a "girl;" or a servant. Dy. 337b;
Hob. 33.
PUERI SUNT DE SANGUINE PARENTUM, SED
PATER ET MATER NON SUNT DE SANGUINE
PUERORUM. 3 Coke, 40. Children are of the
blood of their parents, but the father and mother
are not of the blood of the children.
PUERILITY. In the civil law. A condition in-
termediate between infancy and puberty, continu-
ing in boys from the seventh to the fourteenth
year of their age, and in girls from seven to
twelve.
The ancient Roman lawyers divided puerility into proxi-
mus infantice, as it approached infancy, and proximus
pubertati, as it became nearer to puberty. 6 Toullier, n.
100.
PUERITIA, Lat. In the civil law. Childhood;
the age from seven to fourteen. 4 Bl.Comm. 22.
The age from birth to fourteen years in the male,
or twelve in the female. Calvinus, Lex. The age
from birth to seventeen. Vicat, Voc. Jur.
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PUFFER. A person employed by the owner of
property which is sold at auction to attend the
sale and run up the price by making spurious
bids. Peck v. List, 23 W.Va. 375, 48 Am.Rep. 398.
Beasley v. Burton, '32 Ga.App. 727, 124 S.E. 368.
PUFFING. An expression of opinion by seller
not made as a representation of fact. Gulf Oil
Corp. v. Federal Trade Commission, C.C.A.5, 150
F.2d 106, 109.
PUGILIST. One who fights with his fists. Reis-
ler v. Dempsey, 207 Mo.App. 182, 232 S.W. 229, 230.
PUIS. Fr. In law. Afterwards; since.
PUIS DARREIN CONTINUANCE. Since the last
continuance. The name of a plea which a de-
fendant is allowed to put in, after having already
pleaded, where some new matter of defense arises
after issue joined; such as payment, a release
by the plaintiff, the discharge of the defendant
under an insolvent or bankrupt law, and the like.
3 Bl.Comm. 316; Waterbury v. McMillan, 46 Miss.
640; Woods v. White, 97 Pa. 227.
PUISNE. L. Fr. Younger; junior; subordinate;
associate. The title by which the justices and
barons of the several common-law courts at West-
minster are distinguished from the chief justice
and chief baron.
PUISSANCE PATERNELLE. Fr. Paternal pow-
er. In the French law, the male parent has the
following rights over the person of his child: (1)
If child is under sixteen years of age, he may
procure' him to be imprisoned for one month or
under. (2) If child is over sixteen and under
twenty-one he may procure an imprisonment for
six months or under with power in each case to
procure a second period of imprisonment. The
female parent, being a widow, may, with the ap-
proval of the two nearest relations on the father's
side, do the like. The parent enjoys also the fol-
lowing rights over the property of his child, viz.,
a right to take the income until the child attains
the age of eighteen years, subject to maintaining
the child and educating him in a suitable man-
ner. Brown.
PULLING. In terminology associated with oil
wells, the withdrawing from the well of the cas-
ing placed therein, after it has been demonstrated
that the well is a nonproducer. Texas Granite
Oil Co. v. Williams, 199 Ky. 146, 250 S.W. 818, 820.
PULSARE. Lat. In the civil law. To beat; to
accuse or charge; to proceed against at law. Cal-
vin.
PULSATOR. The plaintiff, or actor.
PUMMY. Possibly a provincialism peculiar to
Ochiltree county, Tex., presumably meaning a
farm product or the residue of a farm product
which has some value as a stock food. Cudd v.
Whippo, Tex.Civ.App., 234 S.W. 706, 708.
An obsolete or dialectic variant of "pomace."
Webster's New Int. Diet,
PUNCTUATION. The division of a written or
printed document into sentences by means of
periods; and of sentences into smaller divisions
by means of commas, semicolons, colons, etc.
PUNCTUM TEMPORIS. Lat. A point of time;
an indivisible period of time; the shortest space
of time; an instant. Calvin.
PUNCTURED WOUND. In medical jurispru-
dence. A wound made by the insertion into the
body of any instrument having a sharp point.
The term is practically synonymous with "stab."
PUNDBRECH. In old English law. Pound-
breach; the offense of breaking a pound. The il-
legal taking of cattle out of a pound by any means.
whatsoever. Cowell.
PUNDIT. An interpreter of the Hindu law; a
learned Brahmin.
PUNISHABLE. Deserving of or capable or liable
to punishment; capable of being punished by law
or right. People v. Superior Court of City and
County of San Francisco, 116 Cal.App. 412, 2 P.2d
843, 844.
PUNISHMENT. In criminal law. Any pain,
penalty, suffering, or confinement inflicted upon
a person by the authority of the law and the judg-
ment and sentence of a court, for some crime or
offense committed by him, or for his omission of
a duty enjoined by law. Cummings v. Missouri, 4
Wall. 320, 18 L.Ed. 356. State v. Hondros, 100 S.
C. 242, 84 S.E. 781, 783; Orme v. Rogers, 32 Ariz.
502, 260 P. 199; Cardigan v. White, C.C.A. 18 F.
2d 572, 573. A deprivation of property or some
right. State v. Cowen, 231 Iowa 1117, 3 N.W.2d
176, 179. But does not include a civil penalty re-
dounding to the benefit of an individual, such as
a forfeiture of interest. People v. Vanderpool,
20 Ca1.2d 746, 128 P.2d 513, 515.
Cruel and Unusual Punishment
Such punishment as would amount to torture or
barbarity, and any cruel and degrading punish-
ment not known to the common law, and also any
punishment so disproportionate to the offense as
to shock the moral sense of the community.
State v. Driver, 78 N.C. 423; In re Kemmler, 136
U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Sustar v.
County Court of Marion County, 101 Or. 657, 201
P. 445, 448.
Cumulative Punishment
An increased punishment inflicted for a sec-
ond or third conviction of the same offense, under
the statutes relating to habitual criminals. State
v. Hambly, 126 N.C. 1066, 35 S.E. 614. To be dis-
tinguished from a "cumulative sentence," as to
which see Sentence.
Infamous Punishment
Punishment by imprisonment, Lee v. Stanfill,
171 Ky. 71, 186 S.W. 1196, 1198; in a penitentiary,
Maxey v. United States, C.C.A.Ark., 207 F. 327,
331. Also, imprisonment at hard labor, Flanna-
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PURCHASER
gan v. Jepson, 177 Iowa 393, 158 N.W. 641, 643, L.
R.A.1918E, 548, particularly if in a penitentiary
or state prison. Hull v. Donze, 164 La. 199, 113
So. 816. Sometimes, imprisonment at hard labor
regardless of the place of imprisonment. U. S.
v. Moreland, 42 S.Ct. 368, 25 U.S. 433, 66 L.Ed.
700, 24 A.L.R. 992.
PUNITIVE. Relating to punishment; having the
character of punishment or penalty; inflicting
punishment or a penalty.
PUNITIVE DAMAGES. See Damages.
PUNITIVE POWER. The power and authority of
a state, or organized jural society, to inflict pun-
ishments upon those persons who have committed
actions inherently evil and injurious to the pub-
lic, or actions declared by the laws of that state
to be sanctioned with punishments.
PUNITIVE STATUTE. One which creates for-
feiture or imposes penalty. Peterson v. Ball, 211
Cal. 461, 296 P. 291, 300, 74 A.L.R. 187.
PUPIL. A youth or scholar of either sex under
care of an instructor, tutor, or teacher. Kruse v.
Independent School Dist. of Pleasant Hill, 209
Iowa 64, 227 N.W. 594, 595.
In the civil law. One who is in his or her
minority. Particularly, one who is in ward or
guardianship.
PUPILLARIS SUBSTITUTIO. Lat. In the civil
law. Pupillar substitution; the substitution of
an heir to a pupil or infant under puberty. The
substitution by a father of an heir to his children
-under his power, disposing of his own estate and
theirs, in case the child refused to accept the in-
heritance, or died before the age of puberty.
Hallifax, Civil Law, b. 2, c. 6, no. 64.
PUPILLARITY. In Scotch law. That period of
minority from the birth to the age of fourteen
in males, and twelve in females. Bell.
PUPILLUS. Lat. In the civil law. A ward or
infant under the age of puberty; a person under
the authority of a tutor, (q. v.).
PUPILLUS PATI POSSE NON INTELLIGITUR.
A pupil or infant is not supposed to be able to
suffer, i. e., to do an act to his own prejudice.
Dig. 50, 17, 110, 2.
FUR. L. Fr. By or for. Used both as a separa-
ble particle, and in the composition of such words
as "purparty," "purlieu."
PUR AUTRE VIE. For (or during) the life of
another. An estate pur autre vie is an estate in
lands which a man holds for the life of another
person. 2 Bl.Comm. 120; Litt. § 56.
PUR CAUSE DE VICINAGE. By reason of neigh-
borhood. See Common.
FUR FAIRE PROCLAMER. An ancient writ ad-
dressed to the mayor or bailiff of a city or town,
requiring him to make proclamation concerning
nuisances, etc. Fitz. Nat. B. 392.
PUR TANT QUE. Forasmuch as; because; to
the intent that. Kelham.
PURCHASE. Transmission of property from one
person to another by voluntary act and agree-
ment, founded on a valuable consideration. Spur
Independent School Dist. v. W. A. Holt Co., Tex.
Civ.App., 88 S.W.2d 1071, 1073. In a technical and
broader meaning relative to land generally means,
the acquisition of real estate by any means what-
ever except by descent. Kelly v. Southworth, 38
Wyo. 414, 267 P. 691, 692. Lindburg v. Bennett,
117 Neb. 66, 219 N.W. 851, 855. Oklahoma City v.
Board of Education of Oklahoma City, 181 Ok!.
539, 75 P.2d 201.
Quasi purchase. In the civil law. A purchase
of property not founded on the actual agreement
of the parties, but on conduct of the owner which
is inconsistent with any other hypothesis than
that he intended a sale.
Words of purchase. Words which denote the
person who is to take the estate. Thus, if I grant
land to A. for twenty-one years, and after the de-
termination of that term to A.'s heirs, the word
"heirs" does not denote the duration of A.'s es-
tate, but the person who is to take the remainder
on the expiration of the term, and is therefore
called a "word of purchase." Williams, Real
Prop.; Fearne, Rem. 76, et seq.
PURCHASE AND LIQUIDATION. Of savings
bank means undertaking to wind up affairs and
pay off obligations of savings bank. Wasmann
v. City Nat. Bank of Knoxville, Tenn., C.C.A.
Tenn., 52 F.2d 705, 707.
PURCHASE MONEY. The consideration in mon-
ey paid or agreed to be paid by the buyer to the
seller of property, particularly of land. It means
money stipulated to be paid by a purchaser to his
vendor, and does not include money the purchaser
may have borrowed to complete his purchase.
Purchase money, as between vendor and vendee
only, is contemplated; as between purchaser and
lender, the money is "borrowed money." Williams
v. American Slicing Mach. Co., 148 Ga. 770, 98 S.
E. 270, 271. As used with reference to part per-
formance under statute of frauds comprehends
consideration, whether it be money or property or
services, for which lands are to be conveyed.
Hall v. Haer, 160 Okl. 118, 16 P.2d 83, 84.
PURCHASE-MONEY MORTGAGE. See Mort-
gage.
PURCHASE PRICE. Price agreed upon as a con-
sideration for which property is sold and pur-
chased. Byrd v. Babin, 196 La. 902, 200 So. 294,
300.
PURCHASER. One who acquires real property
in any other mode than by descent. One who
acquires either real or personal property by buy-
ing it for a price in money; a buyer; vendee.
Hodge Ship Bldg. Co. v. City of Moss Point, 144
Miss. 657, 110 So. 227, 229. Also, a successful
bidder at judicial sale. In re Spokane Sa y . Bank,
198 Wash. 665, 89 P.2d 802, 806.
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PURCHASER
In the construction of registry acts, the term "purchas-
er" is usually taken in its technical legal sense. It means
a complete purchaser, pr, in other words, one clothed with
the legal title. Steele v. Spencer, 1 Pet. 552, 559, 7 L.Ed.
259.
Bona fide purchaser. See Bona Fide.
First purchaser. In the law of descent, this
term signifies the ancestor who first acquired (in
any other manner than by inheritance) the estate
which still remains in his family or descendants.
Innocent purchaser. See Innocent.
Purchaser of a note or bill. The person who
buys a promissory note or bill of exchange from
the holder without his indorsement.
PURCHASER WITHOUT NOTICE IS NOT OB-
LIGED TO DISCOVER TO HIS OWN HURT. See
4 Bouv. Inst. note 4336.
PURE. Absolute; complete; simple; unmixed;
unqualified; free from conditions or restrictions;
as in the phrases pure charity, pure debt, pure
obligation, pure plea, pure villenage, as to which
see the nouns.
PURE ACCIDENT. Implies that accident was
caused by some unforeseen and unavoidable event
over which neither party to the action had con-
trol, and excludes the idea that it was caused by
carelessness or negligence of defendant. Maletis
v. Portland Traction Co., 160 Or. 30, 83 P.2d 141,
142. Unavoidable accident synonymous. Brewer
v. Berner, 15 Wash.2d 644, 131 P.2d 940, 942.
PURGATION. The act of cleansing or exonerat-
ing one's self of a crime, accusation, or suspicion
of guilt, by denying the charge on oath or by or-
deal.
Canonical purgation was made by the party's
taking his own oath that he was innocent of the
charge, which was supported by the oath of twelve
compurgators, who swore they believed he spoke
the truth. To this succeeded the mode of purga-
tion by the single oath of the party himself, called
the "oath ex officio," of which the modern defend-
ant's oath in chancery is a modification. 3 Bl.
Comm. 447; 4 Bl.Comm. 368.
Vulgar purgation consisted in ordeals or trials
by hot and cold water, by fire, by hot irons, by
battel, by corsned, etc.
PURGE. To cleanse; to clear; to clear or exon-
erate from some charge or imputation of guilt, or
from a contempt.
PURGE DES HYPOTHEQUES. Fr. In French
law. An expression used to describe the act of
freeing an estate from the mortgages and priv-
ileges with which it is charged, observing the
formalities prescribed by law. Duverger.
PURGED OF PARTIAL COUNSEL. In Scotch
practice. Cleared of having been partially ad-
vised. A term applied to the preliminary exam-
ination of a witness, in which he is sworn and ex-
amined whether he has received any bribe or
promise of reward, or has been told what to say,
or whether he bears malice or ill will to any of
the parties. Bell.
PURGING A TORT. Is like the ratification of a
wrongful act by a person who has power of him-
self to lawfully do the act. But, unlike ratifica-
tion, the purging of the tort may take place even
after commencement of the action. 1 Brod. & B.
282.
PURGING CONTEMPT. Atoning for, or clear-
ing one's self from, contempt of court, (q. v.).
It is generally done by apologizing and paying
fees, and is generally admitted after a moderate
time in proportion to the magnitude of the offense.
PURLIEU. In English law. A space of land near
a royal forest, which, being severed from it, was
made purlieu; that is pure or free from the forest
laws.
PURLIEU-MEN. Those who have ground within
the purlieu to the yearly value of 40s. a year free-
hold are licensed to hunt in their own purlieus.
Manw. c. 20, § 8.
PURLOIN. To steal; to commit larceny or theft.
McCann v. U. S., 2 Wyo. 298.
PURPART. A share; a part in a division; that
part of an estate, formerly held in common, which
is by partition allotted to any one of the parties.
The ward was anciently applied to the shares fall-
ing separately to co-parceners upon a division or
partition of the estate, and was generally spelled
"purparty;" but it is now used in relation to any
kind of partition proceedings. Seiders v. Giles,
141 Pa. 93, 21 A. 514.
PURPARTY. That part of an estate which, hav-
ing been held in common by parceners, is by par-
tition allotted to any of them. To make purparty
is to divide and sever the lands which fall to
parceners. Old, N. B. 11. Formerly pourparty.
See Jacob. The 'word purpart is commonly used
to indicate a part of an estate in any connection.
PURPORT, n. Meaning; import; substantial
meaning; substance; legal effect. The "purport"
of an instrument means the substance of it as
it appears on the face of the instrument, and is
distinguished from "tenor," which means an ex-
act copy. Dana v. State, 2 Ohio St. 93. Deskin
v. U. S. Reserve Ins. Corporation, 221 Mo.App.
1151, 298 S.W. 103, 106.
PURPORT, v. To convey, imply, or profess out-
wardly; to have the appearance of being, intend-
ing, claiming, etc. United States v. 306 Cases
Containing Sandford Tomato Catsup with Preser-
vative, D.C.N.Y., 55 F.Supp. 725, 727.
PURPOSE. That which one sets before him to
accomplish; an end, intention, or aim, object,
plan, project. State v. Patch, 64 Mont. 565, 210
P. 748, 750; Macomber v. State, 137 Neb. 882,
291 N.W. 674, 680.
PURPOSELY. Intentionally; designedly; con-
sciously; knowingly. Holt v. State, 107 Ohio St.
307, 140 N.E. 349, 350.
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PUTATIVE
PURPRESTURE. An inclosure by a private party
of a part of that which belongs to and ought to
be open and free to the enjoyment of the public
at large. It is not necessarily a public nuisance.
A public nuisance must be something which sub-
jects the public to some degree of inconvenience
or annoyance; but a purpresture may exist with-
out putting the public to any inconvenience what-
ever. Attorney General v. Evart Booming Co., 34
Mich. 462. And see Cobb v. Lincoln Park Com'rs,
202 Ill. 427, 67 N.E. 5, 63 L.R.A. 264, 95 Am.St.Rep.
258.
PURPRISE. L. Fr. A close or inclosure; as
also the whole compass of a manor.
PURPURE, or PORPRIN. A term used in herald-
ry; the color commonly called "purple," expressed
in engravings by lines in bend sinister. In the
arms of princes it was formerly called "mercury,"
and in those of peers "amethyst."
PURSE. Some valuable thing, offered by a per-
son for the doing of something by others, into
strife for which he does not enter; prize; pre-
mium. He has not a chance of gaining the thing
offered; and, if he abide by his offer, that he must
lose it and give it over to some of those contend-
ing for it is reasonably certain. Harris v. White,
81 N.Y. 539.
PURSER. The person appointed by the master of
a ship or vessel, whose duty it is to take care of
the ship's books, in which everything on board is
inserted, as well the names of mariners as the ar-
ticles of merchandise shipped. Roccus, Ins. note.
PURSUANT. A following after or following out;
line in accordance with or by reason of something;
conformable; in accordance; agreeably, conform-
ably; a carrying out or with effect, the act of ex-
ecuting; that which is pursuant; consequence;
acting or done in consequence or in prosecution of
anything; hence, agreeable. Suppiger v. Enking,
60 Idaho 292, 91 P.2d 362, 366.
PURSUE. To follow a matter judicially, as a
complaining party.
To pursue a warrant or authority, in the old
books, is to execute it or carry it out. Co. Litt.
52a.
To pursue the practice of any profession or business,
contemplates a course of business or professional practice,
and not single isolated acts arising from unusual circum-
stances. Dane v. Brown, C.C.A.Mass., 70 F.2d 164, 165.
PURSUER. One who pursues; one who follows
in order to overtake. Tatum v. State, 57 Ga.App.
849, 197 S.E. 51, 53.
The name by which the complainant or plaintiff
is known in the ecclesiastical courts, and in the
Scotch law.
PURSUIT. That which one engages in as an oc-
cupation, trade, or profession; that which is fol-
lowed as a continued or at least extended and pro-
longed employment. Dorrell v. Norida Land &
Timber Co., 53 Idaho 793, 27 P.2d 960.
PURSUIT OF HAPPINESS. As used in constitu-
tional law, this right includes personal freedom,
freedom of contract, exemption from oppression
or invidious discrimination, the right to follow
one's individual preference in the choice of an oc-
cupation and the application of his energies, liber-
ty of conscience, and the right to enjoy the do-
mestic relations and the privileges of the family
and the home. Black, Const. Law (3d Ed.) p. 544.
Butchers' Union, etc., Co. v. Crescent City Live
Stock, etc., Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed.
585. The right to follow or pursue any occupation
or profession without restriction and without hav-
ing any burden imposed upon one that is not im-
posed upon others in a similar situation. Myers
v. City of Defiance, 67 Ohio App. 159, 36 N.E.2d
162.
PURUS IDIOTA. Lat. A congenital idiot.
PURVEYANCE. In old English law. A providing
of necessaries for the king's house. Cowell.
PURVEYOR. In old English law. An officer who
procured or purchased articles needed for the
king's use at an arbitrary price. In the statute
36 Edw. III. c. 2, this is called a "heignous home,"
(heinous or hateful name,) and changed to that
of "achator." Barring. Ob. St. 289.
PURVIEW. Enacting part of a statute, in con-
tradistinction to the preamble. Schaffer v. State,
202 Ind. 318, 173 N.E. 229, 231. That part of a
statute commencing with the words "Be it enact-
ed," and continuing as far as the repealing clause;
and hence, the design, contemplation, purpose, or
scope of the act. Smith v. Hickman, Cooke
(Tenn.) 337; Olson v. Heisen, 90 Or. 176, 175 P.
859.
PUT. In pleading. To confide to; to rely upon;
to submit to. As in the phrase, "the said defend-
ant puts himself upon the country;" that is, he
trusts his case to the arbitrament of a jury.
As used by speculators in the stock market, a
contract by 'Which one of the parties thereto pur-
chases at a fixed sum the privilege to deliver cer-
tain stock or grain within a definite period of
time. Colston v. Burnet, 59 F.2d 867, 61 App.D.C.
192. See, also, Puts and Calls.
PUT IN. In practice. To place in due form be-
fore a court; to place among the records of a
court.
PUT OFF. To postpone. In a bargain for the
sale of goods, it may mean to postpone its com-
pletion or to procure a resale of the goods to a
third person. 11 Ex. 302.
PUT OUT. To open. To put out lights; to open
or cut windows. 11 East, 372.
PUTAGIUM HIEREDITATEM NON ADIMIT. 1
Reeve, Eng. Law, c. 3, p. 117. Incontinence does
not take away an inheritance.
PUTATIVE. Reputed; supposed; commonly es-
teemed. Applied in Scotch law to creditors and
proprietors. 2 Kames, Eq. 105, 107, 109.
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PUTATIVE
PUTATIVE FATHER. The alleged or reputed
father of an illegitimate child. State v. Nestaval,
72 Minn. 415, 75 N.W. 725.
PUTATIVE MARRIAGE. A marriage contracted
in good faith and in ignorance (on one or both
sides) that impediments exist which render it un-
lawful. Mackeld. Rom. Law, § 556; In re Hall,
61 App.Div. 266, 70 N.Y.S. 410; Smith v. Smith,
1 Tex. 628, 46 Am.Dec. 121; United States Fidelity
and Guaranty Co. v. Henderson, Tex.Civ.App., 53
S.W.2d 811, 816.
PUTS AND CALLS. A "put" in the language of
the grain or stock market is a privilege of deliver-
ing or not delivering the subject-matter of the
sale; and a "call" is a privilege of calling or not
calling for it. Pixley v. Boynton, 79 Ill. 351.
PUTS AND REFUSALS. In English law. Time-
bargains, or contracts for the sale of supposed
stock on a future day.
PUTTING IN FEAR. These words are used in
the definition of a robbery from the person: The
offense must have been committed by putting in
fear the person robbed. 3 Inst. 68; 4 Bl. Comm.
243.
No matter how slight the cause creating the fear may be,
if transaction is attended with such circumstances of ter-
ror, such threatening by word or gesture, as in common
experience is likely to create an apprehension of danger
and induce a man to part with his property for sake of
his person, victim is put in fear. State v. Sawyer, 224
N.C. 61, 29 S.E.2d 34, 37.
PUTTING IN SUIT. As applied to a bond, or any
other legal instrument, signifies bringing an ac-
tion upon it, or making it the subject of an action.
PUTURE. In old English law. A custom claimed
by keepers in forests, and sometimes by bailiffs
of hundreds, to take man's meat, horse's meat, and
dog's meat of the tenants and inhabitants within
the perambulation of the forest, hundred, etc.
The land subject to this custom was called "terra
putura." Others, who call it "pulture," explain
it as a demand in general; and derive it from
the monks, who, before they were admitted, pulsa-
bant, knocked at the gates for several days to-
gether. 4 Inst. 307; Cowell.
PYKE, PAIK. In Hindu law. A foot-passenger;
a person employed as a night-watch in a village,
and as a runner or messenger on the business of
the revenue. Wharton.
PYKERIE. In old Scotch law. Petty theft. 2
Pitc. Crim. Tr. 43.
PYROMANIA. See Insanity.
PYX, TRIAL OF THE. Under the British Coin-
age Acts this occurs annually at Goldsmiths' Hall.
The coins of the realm are assayed and weighed
by a jury of goldsmiths over which the King's
Remembrancer is usually appointed by the treas-
ury to preside. Formerly the specimen coins put
into the Pyx or box were produced at Westmin-
ster, from the treasure-house of the Abbey, where
the Pyx was kept; the duty of presiding at the
trial belonged to the office of the Remembrancer.
See Remembrances of Sir F. Pollock.
Also spelled "pix" (q. v.).
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QUIE AB
Q
Q. B. An abbreviation of "Queen's Bench."
Q. B. D. An abbreviation of "Queen's Bench Div-
ision."
Q. C. An abbreviation of "Queen's Counsel."
Q. C. F. An abbreviation of "quare clausum freg-
it," (q. v.).
Q. D. An abbreviation of "quasi dicat," as if he
should say. Webster, New Int. Dict.
Q. E. N. An abbreviation of "quare executionem
non," wherefore execution [should] not [be is-
sued.]
Q. S. An abbreviation for "Quarter Sessions."
Q. T. An abbreviation of "qui tam," (q. v.).
Q. V. An abbreviation of "quod vide," used to
refer a reader to the word, chapter, etc., the name
of which it immediately follows.
QUA. Lat. Considered as; in the character or
capacity of. For example, "the trustee qua trus-
tee [that is, in his character as trustee] is not
liable," etc.
QUACK. A pretender to medical skill which he
does not possess; one who practices as a physi-
cian or surgeon without adequate preparation or
due qualification. Elmergreen v. Horn, 115 Wis.
385, 91 N.W. 973.
QUACUNQUE VIA DATA. Lat. Whichever way
you take it.
QUADRAGESIMA. Lat. The fortieth. The first
Sunday in Lent is so called because it is about the
fortieth day before Easter. Cowell.
QUADRAGESIMALS. Offerings formerly made,
on Mid-Lent Sunday, to the mother church.
QUADRAGESMS. The third volume of the year
books of the reign of Edward III. So called be-
cause beginning with the fortieth year of that
sovereign's reign. Crabb, Eng. Law, 327.
QUADRANS. Lat.
In Roman law. The fourth part; the quarter
of any number, measure, or quantity. Hence an
heir to the fourth part of the inheritance was
called "hceres ex quadrante." Also a Roman coin,
being the fourth part of an as, equal in value to
an English half-penny.
In old English law. A farthing; a fourth part
or quarter of a penny.
QUADRANT. An angular measure of ninety de-
grees.
QUADRANTATA TERRIE. In old English law.
A measure of land, variously described as a quar-
ter of an acre or the fourth part of a yard-land.
QUADRARIUM. In old records. A stone-pit or
quarry. Cowell.
QUADRIENNIUM. Lat. In the civil law. The
four-year course of study required to be pursued
by law-students before they were qualified to
study the Code or collection of imperial constitu-
tions. See Inst. Proem.
QUADRIENNIUM UTILE. In Scotch law. The
term of four years allowed to a minor, after his
majority, in which he may by suit or action en-
deavor to annul any deed to his prejudice, granted
during his minority. Bell.
QUADRIPARTITE. Divided into four parts. A
term applied in conveyancing to an indenture ex-
ecuted in four parts.
QUADRIPARTITUS. The name of an Anglo-Lat-
in legal treatise. The two extant books were com-
pleted in 1114. The compiler was a secular clerk
who entered into relations with the archbishop of
York; his name is unknown. Brunner, Sources
of English Law in 2 Sel. Essays in Anglo-Amer.
L. H. 8.
QUADROON. A person who is descended from a
white person and another person who has an equal
mixture of the European and African blood.
State v. Davis, 2 Bailey (S. C.) 558.
QUADRUPLATORES. Lat. In Roman law. In-
formers who, if their information were followed
by conviction, had the fourth part of the confiscat-
ed goods for their trouble.
QUADRUPLICATIO. Lat. In the civil law. A.
pleading on the part of a defendant, correspond-
ing to the rebutter at common law. The third
pleading on the part of the defendant. Inst. 4, 14,
3; 3 Bl. Comm. 310.
QUADRUPLICATION. In pleading. A pleading
in admiralty, third in order after a replication;
now obsolete. Formerly this word was used in-
stead of surrebutter. 1 Brown, Civ.Law, 469, n.
QUIE AB HOSTIBUS CAPIUNTUR, STATIM
CAPIENTIUM FIUNT. 2 Burrows, 693. Things
which are taken from enemies immediately be-
come the property of the captors.
QUIE AB INITIO INUTILIS FUIT INSTITUTIO,
EX POST FACTO CONVALESCERE NON PO-
TEST. An institution which was at the beginning
of no use or force cannot acquire force from aft-
er matter. Dig. 50, 17, 210.
QUIE AB INITIO NON VALENT, EX POST
FACTO CONVALESCERE NON POSSUNT.
Things invalid from the beginning cannot be made
valid by subsequent act. Tray. Lat. Max. 482.
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QUM ACCESSIONUM
QUIE ACCESSIONUM LOCUM OBTINENT, EX-
TINGUUNTUR CUM PRINCIPALES RES PER-
EMPTIE FUERINT. Things which hold the place
of accessories are extinguished when the prin-
cipal things are destroyed. 2 Poth. Obl. 202;
Broom, Max. 496.
QUIE AD UNUM FINEM LOQUUTA SUNT, NON
DEBENT AD ALIUM DETORQUERI. 4 Coke,
14. Those words which are spoken to one end
ought not to be perverted to another.
QUIE COHIERENT PERSONIE A PERSONA
SEPARARI NEQUEUNT. Things which cohere
to, or are closely connected with, the person, can-
not be separated from the person. Jenk. Cent. p.
28, case 53.
QUIE COMMUNI LEGE DEROGANT STRICTE
INTERPRETANTUR. [Statutes] which derogate
from the common law are strictly interpreted.
Jenk. Cent. p. 221, case 72.
QUIE CONTRA RATIONEM JURIS INTRODUC-
TA SUNT, NON DEBENT TRAHI IN CONSE-
QUENTIAM. 12 Coke, 75. Things introduced
contrary to the reason of law ought not to be
drawn into a precedent.
QUIE DUBITATIONIS CAUSA TOLLENDIE IN-
SERUNTUR COMMUNEM LEGEM NON LIE-
BUNT. Co. Litt. 205. Things which are inserted
for the purpose of removing doubt hurt not the
common law.
QUIE DUBITATIONIS TOLLENDIE CAUSA
CONTRACTIBUS INSERUNTUR, JUS COM-
MUNE NON LIEDUNT. Particular clauses in-
serted in agreements to avoid doubts and ambi-
guity do not prejudice the general law. Dig. 50, 17,
81.
QUIE EST EADEM. Lat. Which is the same.
Words used for alleging that the trespass or
other fact mentioned in the plea is the same as
that laid in the declaration, where, from the cir-
cumstances, there is an apparent difference be-
tween the two. 1 Chit. Pl. *582.
QUIE IN CURIA REGIS ACTA SUNT RITE AGI
PRIESUMUNTUR. 3 Bulst. 43. Things done in
the king's court are presumed to be rightly done.
QUIE IN PARTES DIVIDI NEQUEUNT SOLIDA
A SINGULIS PRIESTANTUR. 6 Coke, 1. Serv-
ices which are incapable of division are to be per-
formed in whole by each individual.
QUIE IN TESTAMENTO ITA SUNT SCRIPTA
UT INTELLIGI NON POSSINT, PERINDE SUNT
AC SI SCRIPTA NON ESSENT. Things which
are so written in a will that they cannot be under-
stood, are the same as if they had not been writ-
ten at all. Dig. 50, 17, 73, 3.
QUPE INCONTINENT! FIUNT INESSE VIDEN-
TUR. Things which are done incontinently [or
simultaneously with an act] are supposed to be
inherent [in it; to be a constituent part of it.] Co.
Litt. 236b.
QUIE INTER ALIOS ACTA SUNT NEMINI NO-
CERE DEBENT, SED PRODESSE POSSUNT. 6
Coke, 1. Transactions between strangers ought
to hurt no man, but may benefit.
QUIE LEGI COMMUNI DEROGANT NON SUNT
TRAHENDA IN EXEMPLUM. Things deroga-
tory to the common law are not to be drawn into
precedent. Branch, Princ.
QUIE LEGI COMMUNI DEROGANT STRICTE
INTERPRETANTUR. Jenk. Cent. 29. Those
things which are derogatory to the common law
are to be strictly interpreted.
QUIE MALA SUNT INCHOATA IN PRINCIPIO
VIX BONO PERAGUNTUR EXITU. 4 Coke, 2.
Things bad in principle at the commencement sel-
dom achieve a good end.
QUIE NIHIL FRUSTRA. Lat. Which [does or
requires] nothing in vain. Which requires noth-
ing to be done, that is, to no purpose. 2 Kent,
Comm. 53.
QUIE NON FIER" DEBENT, FACTA, VALENT.
Things which ought not to be done are held valid
when they have been done. Tray. Lat. Max. 484.
QUIE NON VALEANT SINGULA, JUNCTA JU-
VANT. Things which do not avail when separate,
when joined avail. 3 Bulst. 132; Broom, Max.
588.
QUIE PLURA. Lat. In old English practice. A
writ which lay where an inquisition had been
made by an escheator in any county of such lands
or tenements as any man died seised of, and all
that was in his possession was imagined not to be
found by the office; the writ commanding the es-
cheator to inquire what more ( quce plura) lands
and tenements the party held on the day when he
died, etc. Fitzh. Nat. Brev. 255a; Cowell.
QUIE PRIETER CONSUETUDINEM ET MOREM
MAJORUM FIUNT NEQUE PLACENT NEQUE
RECTA VIDENTUR. Things which are done con-
trary to the custom of our ancestors neither please
nor appear right. 4 Coke, 78.
QUIE PROPTER NECESSITATEM RECEPTA
SUNT, NON DEBENT IN ARGUMENTUM TRA-
HI. Things which are admitted on the ground of
necessity ought not to be drawn into question.
Dig. 50, 17, 162.
QUIE RERUM NATURA PROHIBENTUR NUL-
LA LEGE CONFIRMATA SUNT. Things which
are forbidden by the nature of things are [can be]
confirmed by no law. Branch, Princ. Positive
laws are framed after the laws of nature and
reason. Finch, Law, 74.
QUIE SINGULA NON PROSUNT, JUNCTA JU-
VANT. Things which taken singly are of no
avail afford help when taken together. Tray. Lat.
Max. 486.
QUIE SUNT MINOR'S CULPIE SUNT MAJOR'S
INFAMIIE. [Offenses] which are of a lower
grade of guilt are of a higher degree of infamy.
Co. Litt. 6b.
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QUIESTUS
QUZECUNQUE INTRA RATIONEM LEGIS IN-
VENIUNTUR INTRA LEGEM IPSAM ESSE JU-
DICANTUR. Things which are found within the
reason of a law are supposed to be within the law
itself. 2 Inst. 689.
QUIELIBET CONCESSIO DOMINI REGIS CAPI
DEBET STRICTE CONTRA DOMINUM REGEM,
QUANDO POTEST INTELLIGI DUABUS VIIS.
3 Leon. 243. Every grant of our lord the king
ought to be taken strictly against our lord the
king, when it can be understood in two ways.
QUIELIBET CONCESSIO FORTISSIME CON-
TRA DONATOREM INTERPRETANDA EST.
Every grant is to be interpreted most strongly
against the grantor. Co. Litt. 183a.
QUALIBET JURISDICTIO CANCELLOS SUOS
HABET. Jenk. Cent. 137. Every jurisdiction has
its own bounds.
QUIELIBET PARDONATIO DEBET CAPI SE-
CUNDUM INTENTIONEM REGIS, ET NON AD
DECEPTIONEM REGIS. 3 Bulst. 14. Every
pardon ought to be taken according to the inten-
tion of the king, and not to the deception of the
king.
QUIELIBET P(ENA CORPORALIS, QUAMVIS
MINIMA, MAJOR EST QUALIBET P(ENA PE-
CUNIARIA. 3 Inst. 220. Every corporal punish-
ment, although the very least, is greater than any
pecuniary punishment.
QUZERAS DE DUBIIS LEGEM BENE DISCERE
SI VIS. Inquire into doubtful points if you wish
to understand the law well. Litt. § 443.
QU1ERE. A query; question; doubt. This word,
occurring in the syllabus of a reported case or
elsewhere, shows that a question is propounded as
to what follows, or that the particular rule, de-
cision, or statement is considered as open to ques-
tion.
QUIRE DE DUBIIS, QUIA PER RATIONES
PERVENITUR AD LEGITIMAM RATIONEM.
Inquire into doubtful points, because by reason-
ing we arrive at legal reason. Litt. § 377.
QUZERENS. Lat. A plaintiff; the plaintiff.
QUPERENS NIHIL CAPIAT PER BILLAM. The
plaintiff shall take nothing by his bill. A form
of judgment for the defendant. Latch, 133.
QU1ERENS NON INVENIT PLEGIUM. L. Lat.
The plaintiff did not find a pledge. A return for-
merly made by a sheriff to a writ requiring him
to take security of the plaintiff to prosecute his
claim. Cowell.
QUiERERE DAT SAPERE QUIE SUNT LEGITI-
MA VERE. Litt. § 443. To inquire into them, is
the way to know what things are truly lawful.
QUIESTA. An indulgence or remission of pen-
ance, sold by the pope.
QUIESTIO.
Medieval Law
The question; the torture; inquiry or inquisi-
tion by inflicting the torture.
Roman Law
Anciently a species of commission granted by
the comitia to one or more persons for the pur-
pose of inquiring into some crime or public of-
fense and reporting thereon. In later times, the
qucestio came to exercise plenary criminal juris-
diction, even to pronouncing sentence, and then
was appointed periodically, and eventually be-
came a permanent commission or regular crim-
inal tribunal, and was then called "qucestio per-
petua." Maine, Anc. Law, 369-372.
General
Cadit qumstio. The question falls; the discus-
sion ends; there is no room for further argument.
Queestio vexata. A vexed question or mooted
point; a question often agitated' or discussed but
not determined; a question or point which has
been differently decided, and so left doubtful.
QUiESTIONARII. Those who carried qucesta
about from door to door.
QUIESTIONES PERPETUZE, in Roman law, were
commissions (or courts) of inquisition into crimes
alleged to have been committed. They were called
"perpetuce," to distinguish them from occasional
inquisitions, and because they were permanent
courts for the trial of offenders. Brown.
QUIESTOR. Lat. A Roman magistrate, whose
office it was to collect the public revenue. Varro
de L. L. iv. 14.
QUIESTOR SACRI PALATII. Qucestor of the
sacred palace. An officer of the imperial court
at Constantinople, with powers and duties re-
sembling those of a chancellor. Calvin.
QUZESTORES CLASSICI. Lat. In Roman law.
officers entrusted with the care of the public mon-
ey.
Their duties consisted in making the necessary payments
from the cerarium, and receiving the public revenues. Of
both they had to keep correct accounts in their tabuke pub-
licce. Demands which any one might have on the cerarium,
and outstanding debts were likewise registered by them.
Fines to be paid to the public treasury were registered and
exacted by them. They were likewise to provide proper
accommodations for foreign ambassadors and such persons
as were connected with the republic by ties of public hos-
pitality. Lastly, they were charged with the care of the
burials and monuments of distinguished men, the expenses
for which had been decreed by the senate to be paid by the
treasury. Their number at first was confined to two ; but
this was afterwards increased as the empire became ex-
tended. There were quwstors of cities and of provinces,
and questors of the army ; the latter were in fact pay-
masters.
QUIESTORES PARRICIDU. See Questores Par-
ricidii.
QUESTUS. L. Lat. That estate which a man
has by acquisition or purchase, in contradistinc
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QUAKER
tion to "hcereditas," which is what he has by de-
scent. Glan. 1, 7, c. 1.
QUAKER. In England, the statutory, as well as
the popular, name of a member of a religious so-
ciety, by themselves denominated "Friends."
QUALE JUS. Lat. In old English law. A judi-
cial writ, which lay where a man of religion had
judgment to recover land before execution was
made of the judgment. It went forth to the es-
cheator between judgment and execution, to in-
quire what right the religious person had to re-
cover, or whether the judgment were obtained by
the collusion of the parties, to the intent that the
lord might not be defrauded. Reg. Jud. 8.
QUALIFICATION. The possession by an indi-
vidual of the qualities, properties, or circumstanc-
es, natural or adventitious, which are inherently
or legally necessary to render him eligible to fill
an office or to perform a public duty or function.
Thus, the ownership of a freehold estate may be
made the qualification of a voter; so the posses-
sion of a certain amount of stock in a corporation
may be the qualification necessary to enable one
to serve on its board of directors. Cummings v.
Missouri, 4 Wall. 319, 18 L.Ed. 356; Hyde v. State,
52 Miss. 665.
Qualification for office is "endowment, or accomplishment
that fits for an office ; having the legal requisites, endowed
with qualities suitable for the purpose." State v. Seay, 64
Mo. 89, 27 Am.Rep. 206.
Also a modification or limitation of terms or
language; usually intended by way of restriction
of expressions which, by reason of their general-
ity, would carry a larger meaning than was de-
signed.
QUALIFIED. Adapted; fitted; entitled; suscep-
tible; capable; competent; fitting; possessing le-
gal power or capacity; eligible; as an elector
to vote. Applied to one who has taken the steps
to prepare himself for an appointment or office,
as by taking oath, giving bond, etc. Gibbany v.
Ford, 29 N.M. 621; 225 P. 577, 578; Board of Com'rs
of Guadalupe County v. District Court of Fourth
Judicial. Dist., 29 N.M. 244, 223 P. 516, 522. Also
limited; restricted; confined; modified; imper-
fect, or temporary.
The term is also applied in England to a person
who is enabled to hold two benefices at once.
QUALIFIED ACCEPTANCE. See Acceptance.
QUALIFIED ELECTOR. A person who is legally
qualified to vote. Minges v. Board of Trustees of
City of Merced, 27 Cal.App. 15, 148 P. 816, 817.
See Qualified Voter.
QUALIFIED ESTATE. See Estate.
QUALIFIED FEE. See Fee.
QUALIFIED INDORSEMENT. See Indorsement.
QUALIFIED OATH. See Oath.
QUALIFIED PRIVILEGE. In the law of libel
and slander, the same as conditional privilege.
See Privilege.
QUALIFIED PROPERTY. See Property.
QUALIFIED VOTER. A person qualified to vote
generally. In re House Bill No. 166, 9 Colo. 629,
21 P. 473. A person qualified and actually voting.
Carroll County v. Smith, 4 S.Ct. 539, 111 U.S. 565,
28 L.Ed. 517. A legal voter. Branstetter v. Heat-
er, 269 Ky. 844, 108 S.W.2d 1040. See Qualified
Elector.
QUALIFY. To make one's self fit or prepared
to exercise a right, office, or franchise. To take
the steps necessary to prepare ones self for an
office or appointment, as by taking oath, giving
bond, etc. Archer v. State, 74 Md. 443, 22 A. 8, 28
Am.St.Rep. 261. State v. Albert, 55 Kan. 154, 40
P. 286.
Also to limit; to modify; to restrict. Thus, it
is said that one section of a statute qualifies an-
other.
QUALITAS QUAE INESSE DEBET, FACILE
PRLESUMITUR. A quality which ought to form
a part is easily presumed.
QUALITY. In respect to persons, this term de-
notes comparative rank; state or condition in re-
lation to others; social or civil position or class.
In pleading, it means an attribute or character-
istic by which one thing is distinguished from
another.
Adoptiveness, suitableness, fitness; grade; con-
dition. Macy v. Browne, D.C.N.Y., 215 F. 456, 458.
Under Uniform Sales Act, "quality of goods" Includes
their state or condition. Ford v. Waldorf System, 57 R.I.
131, 188 A. 633, 636.
QUALITY OF ESTATE. The period when, and
the manner in which, the right of enjoying an es-
tate is exercised. It is of two kinds: (1) The
period when the right of enjoying an estate is
conferred upon the owner, whether at present
or in future; and (2) the manner in which the
owner's right of enjoyment of his estate is to
be exercised, whether solely, jointly, in common,
or in coparcenary. Wharton.
QUAM LONGUM DEBET ESSE RATIONABILE
TEMPUS NON DEFINITUR IN LEGE, SED
PENDET EX DISCRETIONE JUSTICIARIOR-
UM. Co. Litt. 56. How long reasonable time
ought to be is not defined by law, but depends
upon the discretion of the judges.
QUAM RATIONABILIS DEBET ESSE FINIS,
NON DEFINITUR, , SED OMNIBUS CIRCUM-
STANTIIS INSPECTIS PENDET EX JUSTICI-
ARIORUM DISCRETIONE. What a reasonable
fine ought to be is not defined, but is left to the
discretion of the judges, all the circumstances be-
ing considered. 11 Coke, 44.
QUAMDIU. Lat. As long as; so long as. A
word of limitation in old conveyances. Co. Litt.
235a.
QUAMDIU SE GENE GESSERIT. As long as he
shall behave himself well; during good behavior;
a clause frequent in letters patent or grants of
certain offices, to secure them so long as the per-
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QUANDO
sons to whom they are granted shall not be guilty
of abusing them, the opposite clause being "dur-
ante bene placito," (during the pleasure of the
grantor.)
QUAMVIS ALIQUID PER SE NON SIT MALUM,
TAMEN, SI SIT MALI EXEMPLI, NON EST
FACIENDUM. Although a thing may not be bad
in itself, yet, if it is of bad example, it is not to
be done. 2 Inst. 564.
QUAMVIS LEX GENERALITER LOQUITUR,
RESTRINGENDA TAMEN EST, UT, CESSANTE,
RATIONE, IPSA CESSAT. Although a law
speaks generally, yet it is to be restrained, so that
when its reason ceases, it should cease also. 4
Inst. 330.
QUANDO ABEST PROVISIO PARTIS, ADEST
PROVISIO LEGIS. When the provision of the
party is wanting, the provision of the law is at
hand. 6 Vin. Abr. 49; 13 C. B. 960.
QUANDO ACCIDERINT. Lat. When they shall
come in.
In practice. When a defendant, executor, or ad-
ministrator pleads plene administravit, the plain-
tiff may pray to have judgment of assets quando
acciderint; Bull. N. P. 169; Bac. Abr. Executor
(M). A similar judgment may be taken at plain-
tiff's election, in an action against an heir, on a
plea of riens per descent, instead of taking issue
on the plea. In either of these cases if assets
afterwards come to the hands of the executor or
heir a scire facias must be sued out before exe-
cution can issue, or there may be an action of
debt, suggesting a devastavit; 2 Bouv. Inst. 3708.
It is also sometimes termed a judgment of assets
in futuro. By taking a judgment in this form the
plaintiff admits that defendant has fully admin-
istered to that time; 1 Pet. C. C. 442, n; and
therefore the plaintiff will not be allowed to give
evidence of effects come to defendant's hands be-
fore judgment. For this reason the scire facias
on a judgment of assets quando acciderint must
only pray execution of such assets as have come
to the defendant's hands since former judgment,
and if it prays judgment of assets generally, it
cannot be supported. 2 Com. Dig. Pleader (2D9).
QUANDO ALIQUID MANDATUR, MANDATUR
ET OMNE PER QUOD PERVENITUR AD IL-
LUD. 5 Coke 116. When anything is commanded,
everything by which it can be accomplished is
also commanded.
QUANDO ALIQUID PER SE NON SIT MALUM,
TAMEN SI SIT MALI EXEMPLII, NON EST
FACIENDUM. When anything by itself is not
evil, and yet may be an example for evil, it is
not to be done. 2 Inst. 564.
QUANDO ALIQUID PROHIBETUR EX DIREC-
TO, PROHIBETUR ET PER OBLIQUUM. Co.
Litt. 223. When anything is prohibited directly,
it is prohibited also indirectly.
QUANDO ALIQUID PROHIBETUR, PROHIR.
ETUR ET OMNE PER QUOD DEVENITUR AD
ILLUD: When anything is prohibited, everything
by which it is reached is prohibited also. 2 Inst.
48. That which cannot be done directly shall not
be done indirectly. Broom, Max. 489.
QUANDO ALIQUIS ALIQUID CONCEDIT, CON-
CEDERE VIDETUR ET ID SINE QUO RES UTI
NON POTEST. When a person grants anything,
he is supposed to grant that also without which
the thing cannot be used. When the use of a
thing is granted, everything is granted by which
the grantee may have and enjoy such use. 3 Kent,
Comm. 421.
QUANDO CHARTA CONTINET GENERALEM
CLAUSULAM, POSTEAQUE DESCENDIT AD
VERBA SPECIALIA QUIE CLAUSUL1E GEN-
ERALI SUNT CONSENTANEA, INTERPRE-
TANDA EST CHARTA SECUNDUM VERBA
SPECIALIA. When a deed contains a general
clause, and afterwards descends to special words
which are agreeable to the general clause, the
deed is to be interpreted according to the special
words. 8 Coke 154b.
QUANDO DE UNA ET EADEM RE DUO ONER-
ABILES EXISTUNT, UNUS, PRO INSUFFICIEN-
TIA ALTERIUS, DE .INTEGRO ONERABITUR.
When there are two persons liable for one and the
same thing, one of them, in case of default of the
other, shall be charged with the whole. 2 Inst.
277.
QUANDO DISPOSITIO REFERRI POTEST AD
DUAS RES ITA QUOD SECUNDUM RELA-
TIONEM UNAM VITIETUR ET SECUNDUM
ALTERAM UTILIS SIT, TUM FACIENDA EST
RELATIO AD ILLAM UT VALEAT DISPOSI-
TIO. 6 Coke 76. When a disposition may refer
to two things, so that by the former it would be
vitiated, and by the latter it would be preserved,
then the relation is to be made to the latter, so
that the disposition may be valid.
QUANDO DIVERS! DESIDERANTUR ACTUS
AD ALIQUEM STATUM PERFICIENDUM, PLUS
RESPICIT LEX ACTUM ORIGINALEM. When
different acts are required to the formation of any
estate, the law chiefly regards the original act.
When to the perfection of an estate or interest
divers acts or things are requisite, the law has
more regard to the original act, for that is the
fundamental part on which all the others are
founded. 10 Coke 49a.
QUANDO DUO JURA CONCURRUNT IN UNA
PERSONA, JEQUUM EST AC SI ESSENT IN
DIVERSIS. When two rights concur in one per-
son, it is the same as if they were in two sep-
arate persons. 4 Co. 118; Broom, Max. 531.
QUANDO JUS DOMINI REGIS ET SUBDITI
CONCURRUNT, JUS REGIS PRIEFERRI DE-
BET. 9 Coke 129. When the right of king and of
subject concur, the king's right should be pre-
ferred.
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QUANDO
QUANDO LEX ALIQUID ALICUI CONCEDIT,
CONCEDERE VIDETUR ET ID SINE QUO RES
IPSZE ESSE NON POTEST. 5 Coke 47. When
the law gives a man anything, it gives him that
also without which the thing itself cannot exist.
QUANDO LEX ALIQUID ALICUI CONCEDIT,
OMNIA INCIDENTIA TACITE CONCEDUN-
TUR. 2 Inst. 326. When the law gives anything
to any one, all incidents are tacitly given.
QUANDO LEX EST SPECIAL'S, RATIO AUTEM
GENERALIS, GENERALITER LEX EST INTEL-
LIGENDA. When a law is special, but its reason
[or object] general, the law is to be understood
generally. 2 Inst. 83.
QUANDO LICET ID QUOD MAJUS, VIDETUR
ET LICERE ID QUOD MINUS. Shep. Touch.
429. When the greater is allowed, the less is to
be understood as allowed also.
QUANDO IVIULIER NOBILIS NUPSERIT IGNO-
BILI, DESINIT ESSE NOBILIS NISI NOBILI-
TAS NATIVA FUERIT. 4 Coke, 118. When a
noble woman marries a man not noble, she ceases
to be noble, unless her nobility was born with her.
QUANDO PLUS FIT QUAM FIERI DEBET, VI-
DETUR ETIAM ILLUD FIERI QUOD FACIEN-
DUM EST. When more is done than ought to be
done, that at least shall be considered as per-
formed which should have been performed, [as,
if a man, having a power to make a lease for ten
years, make one for twenty years, it shall be void
only for the surplus.] Broom, Max. 177; 5 Coke,
115; 8 Coke, 85a.
QUANDO QUOD AGO NON VALET UT AGO,
VALEAT QUANTUM VALERE POTEST. When
that which I do does not have effect as I do it, let
it have as much effect as it can. Vandervolgen v.
Yates, 3 Barb. Ch. (N. Y.) 242, 261.
QUANDO RES NON VALET UT AGO, VALEAT
QUANTUM VALERE POTEST. When a thing is
of no effect as I do it, it shall have effect as far
as [or in whatever way] it can. Cowp. 600.
QUANDO VERBA ET MENS CONGRU1LTNT,
NON EST INTERPRETATION! LOCUS. When
the words and the mind agree, there is no place
for interpretation.
QUANDO VERBA STATUTI SUNT SPECIALIA,
RATIO AUTEM GENERALIS, GENERALITER
STATUTUM EST INTELLIGENDUM. When the
words of a statute are special, but the reason or
object of it general, the statute is to be construed
generally. 10 Coke 101b.
QUANTI MINORIS. Lat. The name of an action
in the civil law, (and in Louisiana,) brought by
the purchaser of an article, for a reduction of the
agreed price on account of defects in the thing
which diminish its value.
QUANTUM DAMNIFICATUS? How much
damnified? The name of an issue directed by a
court of equity to be tried in a court of law, to as-
certain the amount of compensation to be allowed
for damage.
QUANTUM MERUIT. As much as he deserved.
In pleading. The common count in an action of
assumpsit for work and labor, founded on an im-
plied assumpsit or promise on the part of the de-
fendant to pay the plaintiff as much as he reason-
ably deserved to have for his labor. 3 Bl. Comm.
161; 1 Tidd, Pr. 2; Viles v. Kennebec Lumber Co.,
118 Me. 148, 106 A. 431.
It refers to class of obligations imposed by law, without
regard to intention or assent of parties bound, for reasons
dictated by reason and justice; such obligations not being
contracts though form of action is contract. Carpenter v.
Josey Oil Co., C.C.A.Okl., 26 F.2d 442, 443. Amount of re-
covery being only the reasonable value of the services
rendered regardless of any agreement as to value. Smith
v. Bliss, 44 Cal.App.2d 171, 112 P.2d 30, 33.
QUANTUM TENENS DOMINO EX HOMAGIO,
TANTUM DOMINUS TENENTI EX DO♦INI()
DEBET PRZETER SOLAM REVERENTIAM;
MUTUA DEBET ESSE DOMINII ET HOMAGII
FIDELITATIS CONNEXIO. Co. Litt. 64. As
much as the tenant by his homage owes to his
lord, so much is the lord, by his lordship, indebted
to the tenant, except reverence alone; the tie of
dominion and of homage ought to be mutual.
QUANTUM VALEBANT. As much as they were
worth. In pleading. The common count in an
action of assumpsit for goods sold and delivered,
founded on an implied assumpsit or promise, on
the part of the defendant, to pay the plaintiff as
much as the goods were reasonably worth. 3 Bl.
Comm. 161; 1 Tidd, Pr. 2.
QUARANTINE. A period of time (theoretically
forty days) during which a vessel, coming from a
place where a contagious or infectious disease is
prevalent, is detained by authority in the harbor
of her port of destination, or at a station near it,
without being permitted to land or to discharge
her crew or passengers. Quarantine is said to
have been first established at Venice in 1484. Bak-
er, Quar. 3.
The space of forty days during which a widow
has a right to remain in her late husband's prin-
cipal mansion immediately after his death. The
right of the widow is also called her "quarantine."
See Davis v. Lowden, 56 N.J.Eq. 126, 38 A. 648;
Falvey v. Hicks, 315 Mo. 442, 286 S.W. 385, 392.
A provision or interest given in law to the widow in her
husband's estate, such as the privilege of occupying the
mansion house and curtilage without charge until her
dower is assigned, and technically is a dower right, or
more broadly is a part of the dower estate. Amiss v. Hite-
shew, 106 W.Va. 703, 147 S.E. 26, 28.
QUARE. Lat. Wherefore; for what reason; on
what account. Used in the Latin form of several
common-law writs.
QUARE CLAUSUM FREGIT. Lat. Wherefore
he broke the close. That species of the action of
trespass which has for its object the recovery of
damages for an unlawful entry upon another's
land is termed "trespass quare clausum fregit;"
"breaking a close" being the technical expression
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QUARTER-DOLLAR
for an unlawful entry upon land. The language
of the declaration in this form of action is "that
the defendant, with force and arms, broke and en-
tered the close" of the plaintiff. The phrase is
often abbreviated to "qu. cl. fr." Brown.
QUARE EJECIT INFRA TERMINUM. Where-
fore he ejected within the term. In old practice.
A writ which lay for a lessee where he was eject-
ed before the expiration of his term, in cases
where the wrong-doer or ejector was not himself
in possession of the lands, but his feoffee or an-
other claiming under him. 3 Bl. Comm. 199, 206;
Reg. Orig. 227; Fitzh. Nat. Brev. 197 S.
QUARE IMPEDIT. Wherefore he hinders. In
English practice. A writ or action which lies for
the patron of an advowson, where he has been dis-
turbed in his right of patronage; so called from
the emphatic words of the old form, by which the
disturber was summoned to answer why he hin-
ders the plaintiff. 3 B1.Comm. 246, 248.
QUARE INCUMBRAVIT. In English law. A
writ which lay against a bishop who, within six
months after the vacation of a benefice, confer-
red it on his clerk, while two others were con-
tending at law for the right of presentation, call-
ing upon him to show cause why he had incum-
bered the church. Reg. Orig. 32. Abolished by 3
& 4 Wm. IV. c. 27.
QUARE INTRUSIT. A writ that formerly lay
where the lord proffered a suitable marriage to
his ward, who rejected it, and entered into the
land, and married another, the value of his mar-
riage not being satisfied to the lord. Abolished
by 12 Car. II. c. 24.
QUARE NON ADMISIT. In English law. A writ
to recover damages against a bishop who does not
admit a plaintiff's clerk. It is, however, rarely or
never necessary; for it is said that a bishop, re-
fusing to execute the writ ad admittendum cler-
icum, or making an insufficient return to it, may
be fined. Wats.Cler.Law, 302.
QUARE NON PERMITTIT. An ancient writ,
which lay for one who had a right to present to a
church for a turn against the proprietary. Fleta,
1. 5, c. 6.
QUARE OBSTRUXIT. Wherefore he obstructed.
In old English practice. A writ which lay for
one who, having a liberty to pass through his
neighbor's ground, could not enjoy his right be-
cause the owner had so obstructed it. Cowell.
QUARENTENA TERRIE. A furlong. Co.Litt.
5b.
QUARREL. This word is said to extend not only
to real and personal actions, but also to the caus-
es of actions and suits; so that by the release of
all "quarrels," not only actions pending, but also
causes of action and suit, are released; and "quar-
rels," "controversies," and "debates" are in law
considered as having the same meaning. Co.Litt.
8, 153; Termes de la Ley.
Black's Law Dictionary Revised 4th Ed.-89
In an untechnical sense, it signifies an altercation, an
angry dispute, an exchange of recriminations, taunts,
threats or accusations between two persons. Carr v. Con-
yers, 84 Ga. 287, 10 S.E. 630, 20 Am.St.Rep. 357; Accident
Ins. Co. v. Bennett, 90 Tenn. 256, 16 S.W. 723, 25 Am.St.
Rep. 685.
QUARRY. In mining law. An open excavation
where the works are visible at the surface; a
place or pit where stone, slate, marble, etc., is
dug out or separated from a mass of rock. Bainb.
Mines, 2. See Marvel v. Merritt, 116 U.S. 11, 6
S.Ct. 207, 29 L.Ed. 550.
QUART. A liquid measure, containing one-fourth
part of a gallon.
QUARTA DIVI PH. In Roman law. That por-
tion of a testator's estate which he was required
by law to leave to a child whom he had adopted
and afterwards emancipated or unjustly disinher-
ited, being one-fourth of his property. Mackeld.
Rom. Law, § 594.
QUARTA FALCIDIA. In Roman law. That por-
tion of a testator's estate which, by the Falcidian
law, was required to be left to the heir, amounting
to at least one-fourth. Mackeld. Rom. Law, § 771.
QUARTER. The fourth part of anything, especi-
ally of a year. Also a length of four inches. In
England, a measure of corn, generally reckoned
at eight bushels, though subject to local varia-
tions. Hospital St. Cross v. Lord Howard De Wal-
den, 6 Term, 343. In American land law, a quar-
ter section of land. See infra. And see McCart-
ney v. Dennison, 101 Cal. 252, 35 P. 766. In a
military sense, the usual term applied to stations,
buildings, lodgings, etc., in the regular occupa-
tion of military troops. State ex rel. Charlton v.
French, 44 N.M. 169, 99 P.2d 715, 727.
In the Law of War. The sparing of the life
of a fallen or captured enemy on the battlefield.
By the end of the seventeenth century quarter
became a recognized usage of war. It is forfeited
only under exceptional circumstances. 1. In case
of absolute and overwhelming necessity, as where
a small force is incumbered with a large number
of prisoners in a savage and hostile country, and
may be justified in killing them for their own self-
preservation. 2. Where belligerents violate the
laws of war they may be refused quarter. 3. By
way of retaliation against an enemy who has de-
nied quarter without a cause. Risley, The Law
of War; Spaight, War Rights on Land, 88-95.
QUARTER CHEST OF TEA. A chest containing
from 25 to 30 pounds. Japan Tea Co. v. Franklin
MacVeagh & Co., 142 Minn. 152, 171 N.W. 305, 307.
QUARTER OF A YEAR. Ninety-one days. Co.
Litt. 135b.
QUARTER-DAY. The four days in the year up-
on which, by law or custom, moneys payable in
quarter-yearly installments are collectible, are
called "quarter-days."
QUARTER-DOLLAR. A silver coin of the Unit-
ed States, of the value of twenty-five cents.
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QUARTER-EAGLE
QUARTER-EAGLE. A gold coin of the United
States, of the value of two and a half dollars.
QUARTER-SALES. In New York law. A spe-
cies of fine on alienation, being one-fourth of the
purchase money of an estate, which is stipulated
to be paid back on alienation by the grantee. The
expressions "tenth-sales," etc., are also used, with
similar meanings. Jackson ex dem. Livingston v.
Groat, 7 Cow. (N.Y.) 285.
QUARTER SEAL. See Seal.
QUARTER SECTION. In American land law.
The quarter of a section of land according to the
divisions of the government survey, laid off by
dividing the section into four equal parts by north-
and-south and -east-and-west lines, and containing
160 acres.
QUARTER SESSIONS. In English law. A crim-
inal court held before two or more justices of
the peace, (one of whom must be of the quorum),
in every county, once in every quarter of a year.
4 Bl.Comm. 271; 4 Steph.Comm. 335.
In American law. Courts established in some
of the states, to be holden four times in the year,
invested with criminal jurisdiction, usually of of-
fenses less than felony, and sometimes with the
charge of certain administrative matters, such as
the care of public roads and bridges.
QUARTERING. In English criminal law. The
dividing a criminal's body into quarters, after
execution. A part of the punishment of high
treason. 4 Bl.Comm. 93.
QUARTERING SOLDIERS. The act of a gov-
ernment in billeting or assigning , soldiers to pri-
vate houses, without the consent of the owners
of such houses, and requiring such owners to sup-
ply them with board or lodging or both.
QUARTERIZATION. Quartering of criminals.
QUARTERLY. Quarter yearly; once in a quar-
ter year. Dickenson v. Cox, 118 Or. 88, 244 P. 877,
878; Leonard v. St. Clair, 27 Idaho, 568, 149 P.
1058, 1060.
QUARTERLY COURTS. A system of courts in.
Kentucky possessing a limited original jurisdic-
tion in civil cases and appellate jurisdiction from
justices of the peace. Hamilton v. Spalding, 76
S.W. 517, 25 Ky.Law Rep. 847. They are not
county courts, but separate and independent
courts created and established by the constitution.
Perry County v. McIntosh, 280 Ky. 223, 133 S.W.
2d 90, 91.
QUARTERONE. In the Spanish and French
West Indies, a quadroon, that is, a person one of
whose parents was white and the other a mulatto.
Daniel v. Guy, 19 Ark. 131.
QUARTO DIE POST. Lat. On the fourth day
after. Appearance day, in the former English
practice, the defendant being allowed four days,
inclusive, from the return of the writ, to make
his appearance.
QUASH. To overthrow; to abate; to vacate; to
annul; to make void. Spelman; 3 Bl.Comm. 303.
Bosley v. Bruner, 2 Cushm. (Miss.) 462; Wilson v.
Commonwealth, 157 Va. 776, 162 S.E. 1, 2.
QUASI. Lat. As if; almost as it were; analog-
ous to. This term is used in legal phraseology to
indicate that one subject resembles another, with
which it is compared, in certain characteristics,
but that there are intrinsic and material dif-
ferences between them. Bicknell v. ,Garrett, 1
Wash.2d 564, 96 P.2d 592, 595, 126 A.L.R. 258;
Cannon v. Miller, 22 Wash.2d 227, 155 P.2d 500, 503,
507, 157 A.L.R. 530. Marker v. State, 25 Ala.App.
91, 142 So. 105, 106. It is often prefixed to Eng-
lish words, implying mere appearance or want of
reality. State v. Jeffrey, 188 Minn. 476, 247 N.W.
692, 693.
It is exclusively a term of classification. Prefixed to a
term of Roman law, it implies that the conception to which
it serves as an index is connected with the conception with
which the comparison is instituted by a strong superficial
analogy or resemblance. It negatives the notion of identi-
ty, but points out that the conceptions are sufficiently sim-
ilar for one to be classed as the sequel to the other.
Maine, Anc. Law, 332. Civilians use the expressions "quasi
contractus," "quasi delictum," "quasi possessio," "quasi
traditio," etc.
As to quasi "Affinity," "Contract," "Corpora-
tion," "Crime," "Delict," "Deposit," "Derelict,"
"Easement," "Entail," "Fee," "In Rem," "Munici-
pal Corporation," "Offense," "Partners," "Person-
alty," "Possession," "Posthumous Child," "Pur-
chase," "Realty," "Tenant," "Tort," "Traditio,"
"Trustee," and "Usufruct," see those titles.
QUASI ADMISSION. An act or utterance, usual-
ly extrajudicial, which creates an inconsistency
with and discredits to a greater or lesser degree,
present claim or other evidence of person creating
the inconsistency, and person who enacted or ut-
tered it may nevertheless disprove its correctness
by introduction of other evidence. Sutherland v.
Davis, 151 Ky. 743, 151 S.W.2d 1021, 1024.
QUASI-CONTRACTUS (Lat.). In civil law. An
obligation similar in character to that of a con-
tract, which arises not from an agreement of
parties but from some relation between them, or
from a voluntary act of one of them. An obliga-
tion springing from voluntary and lawful acts of
parties in the absence of any agreement. Howe.
Stud. Civ. L. 17L
QUASI ESTOPPEL. The principle which pre-
cludes a party from asserting, to another's disad-
vantage, a right inconsistent with a position pre-
viously taken by him. Philadelphia County v.
Sheehan, 263 Pa. 449, 107 A. 14, 16.
A term used by Bigelow to cover a group of cases in
which a party is precluded from occupying inconsistent
positions, either in litigations or in ordinary dealings;
Big. Est. (6th ed.) 732. Pickett v. Bank,. 32 Ark. 34.6 ; Rob-
inson v. Pebworth, 71 Ala. 240. It is to be noted that in
the cases grouped under this title the courts have generally
used the simple term "estoppel" which, it has been sug-
gested, is a questionable use of terms, since many of the
cases are mere instances of ratification or acquiescence;
Big. Est. 755.
"Equitable estoppel" and "estoppel in pals" are con-
vertible terms embracing "quasi estoppel" and embody
doctrine that one may not repudiate an act done or position
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QUERELA
assumed by him, where such course would work injustice
to another rightfully relying thereon. Brown v. Corn Ex-
change Nat. Bank & Trust Co., 136 N.J.Eq. 430, 42 A.2d
474, 480.
QUASI JUDICIAL. A term applied to the action,
discretion, etc., of public administrative officers,
who are required to investigate facts, or ascer-
tain the existence of facts, and draw conclusions
from them, as a basis for their official action, and
to exercise discretion of a judicial nature. Bair
v. Struck, 29 Mont. 45, 74 P. 69, 63 L.R.A. 481;
Mitchell v. Clay County, 69 Neb. 779, 96 N.W. 678.
The actions of the National Labor Relations Board are
"quasi-judicial" in character. Thompson Products v. Na-
tional Labor Relations Board, C.C.A.6, 133 F.2d 637, 640.
QUASI JUDICIAL ACT. A judicial act perform-
ed by one not a judge. State Tax Commission of
Utah v. Katsis, 90 Utah 406, 62 P.2d 120, 123, 107
A.L.R. 1477.
QUASI-TRADITIO (Lat.). In civil law. A term
used to designate that a person is in the use of
the property of another, which the latter suffers
and does not oppose. Lec.Elem. § 396. It also
signifies the act by which the right of property is
ceded in a thing to a person who is in possession
of it; as, if I loan a boat to Paul, and deliver it
to him, and afterwards I sell him the boat, it is
not requisite that he should deliver the boat to
me to be again delivered to him: there is a quasi-
tradition or delivery.
QUATER COUSIN. See Cousin.
QUATUOR PEDIBUS CURRIT. Lat. It runs up-
on four feet; it runs upon all fours. See All-
Fours.
QUATUORVIRI. In Roman law. Magistrates
who had the care and inspection of roads. Dig.
1, 2, 3, 30.
QUAY. A wharf for the loading or unloading of
goods carried in ships. This word is sometimes
spelled "key."
The popular and commercial signification of the word
"quay" involves the notion of a space of ground appropri-
ated to the public use; such use as the convenience of com-
merce requires. New Orleans v. U. S., 10 Pet. 662, 715, 9
L. Ed. 573.
QUE EST LE MESME, L. Fr. Which is the
same. A term used in actions of trespass, etc.
See Quae est Eadem.
QUE ESTATE. L. Fr. Whose estate. A term
used in pleading, particularly in claiming prescrip-
tion, by which it is alleged that the plaintiff and
those former owners whose estate he has have
immemorially exercised the right claimed. This
was called "prescribing in a que estate."
QUEAN. A worthless woman; a strumpet. Ob-
solete.
QUEEN. A woman who possesses the sovereign-
ty and royal power in a country under a monarch-
ical form of government. The wife of a king.
Queen consort. In English law. The wife of a
reigning king. 1 Bl.Comm. 218.
Queen dowager. In English law. The widow
of a king. 1 B1.03mm. 223.
Queen-gold. A royal revenue belonging to
every queen consort during her marriage with
the king, and due from every person who has
made a voluntary fine or offer to the king of ten
marks or upwards, in consideration of any grant
or privilege conferred by the crown. It is now
quite obsolete. 1 Bl.Comm. 220-222.
Queen regnant. In English law. A queen who
holds the crown in her own right; as the first
Queen Mary, Queen Elizabeth, Queen Anne, and
Queen Victoria. 1 Bl.Comm. 218; 2 Steph.Comm.
465.
For the titles and descriptions of various of-
ficers in the English legal system, called "Queen's
Advocate," "Queen's Coroner," "Queen's Counsel,"
"Queen's Proctor," "Queen's Remembrancer,"
etc., during the reign of a female sovereign, as in
the time of Queen Victoria, see, now, under King
and the following titles.
QUEEN ANNE'S BOUNTY. A fund created by a
charter of Queen Anne, (confirmed by St. 2 Ann.
c. 11), for the augmentation of poor livings, con-
sisting of all the revenue of first fruits and tenths,
which was vested in trustees forever. 1 Bl.Comm.
286.
QUEEN'S BENCH. The English court of king's
bench is so called during the reign of a queen. 3
Steph.Comm. 403. See King's Bench.
QUEEN'S PRISON. A jail which used to be ap-
propriated to the debtors and criminals confined
under process or by authority of the superior
courts at Westminster, the high court of admiral-
ty, and also to persons imprisoned under the bank-
rupt law.
QUEM REDITUM REDDIT. L. Lat. An old writ
which lay where a rent-charge or other rent
which was not rent service was granted by fine
holding of the grantor. If the tenant would not
attorn, then the grantee might have had this
writ. Old Nat. Brev. 126.
QUEMADMODUM AD QUIESTIONEM FACTI
NON RESPONDENT JUDICES, ITA AD QUIES-
TIONEM JURIS NON RESPONDENT JURA-
TORES. In the same manner that judges do not
answer to questions of fact, so jurors do not an-
swer to questions of law. Co.Litt. 295.
QUERELA. Lat. An action preferred in any
court of justice. The plaintiff was called "quer-
ens," or complainant and his brief, complaint, or
declaration was called "querela." Jacob.
QUERELA CORAM REGE A CONCILIO DIS-
CUTIENDA ET TERMINANDA. A writ by
which one is called to justify a complaint of a
trespass made to the king himself, before the king
and his council. Reg.Orig. 124.
QUERELA INOFFICIOSI TESTAMENTI. Lat.
In the civil law. A species of action allowed to a
child who had been unjustly disinherited, to set
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aside the will, founded on the presumption of law,
in such cases, that the parent was not in his right
mind. Calvin.; 2 Kent, Comm. 327; Bell.
QUERENS. Lat. A plaintiff; complainant; in-
quirer.
QUERULOUS. Apt to find fault; habitually
complaining; disposed to murmur. Expressing,
or suggestive of complaint; fretful; whining.
Crounse v. Booth Fisheries, 111 Neb. 6, 195 N.W.
462, 463
QUESTA. In old records. A quest; an inquest,
inquisition, or inquiry, upon the oaths of an im-
paneled jury. Cowell.
QUESTION. A subject or point of investigation,
examination or debate; theme of inquiry; prob-
lem; matter to be inquired into; as a delicate
or doubtful question. Pitts v. Howe Scale Co.,
110 Vt. 27, 1 A.2d 695, 697.
A method of criminal examination heretofore
in use in some of the countries of continental
Europe, consisting of the application of torture
to the supposed criminal, by means of the rack or
other engines, in order to extort from him, as
the condition of his release from the torture, a
confession of his own guilt or the names of his
accomplices.
Evidence
An interrogation put to a witness, for the pur-
pose of having him declare the truth of certain
facts as far as he knows them.
Practice
A point on which the parties are not agreed,
and which is submitted to the decision of a judge
and jury.
General
Categorical question. One inviting a distinct
and positive statement of fact; one which can be
answered by "yes" or "no." In the plural, a series
of questions, covering a particular subject-matter,
arranged in a systematic and consecutive order.
Federal question. See Federal.
Hypothetical question. See that title.
Judicial question. See Judicial.
Leading question. See that title.
Political question. See Political.
QUESTMAN, or QUESTMONGER. In old Eng-
lish law. A starter of lawsuits, or prosecutions;
also a person chosen to inquire into abuses, es-
pecially such as relate to weights and measures;
also a church-warden.
QUESTORES PARRICIDII. Lat. In Roman law.
Certain officers, two in number, who were de-
puted by the comitia, as a kind of commission, to
search out and try all cases of parricide and mur-
der. They were probably appointed annually.
Maine, Anc.Law, 370. They ceased to be appoint-
ed at , an early period. Smith, Dict. Gr. & Rom.
Antiq.
QUESTUS EST NOBIS. Lat. A writ of nui-
sance, which, by 15 Edw. I., lay against him to
whom a house or other thing that caused a nui-
sance descended or was alienated; whereas, be-
fore that statute the action lay only against him
who first levied or caused the nuisance to the dam-
age of his neighbor. Cowell.
QUI ABJURAT REGNUM AMITTIT REGNUM,
SED NON REGEM; PATRIAM, SED NON PA-
TREM PATRIJE. 7 Coke, 9. He who abjures
the realm leaves the realm, but not the king; the
country, but not the father of the country.
QUI ACCUSAT INTEGRIE FAME SIT, ET NON
CRIMINOSUS. Let him who accuses be of clear
fame, and not criminal. 3 Inst. 26.
QUI ACQUIRIT SIBI ACQUIRIT HIEREDIBUS.
He who acquires for himself acquires for his
heirs. Tray. Lat.Max. 496.
QUI ADIMIT MEDIUM DIRIMIT FINEM. He
who takes away the mean destroys the end. He
that deprives a man of the mean by which he
ought to come to a thing deprives him of the thing
itself. Co.Litt. 161a, Litt. § 237.
QUI ALIQUID STATUERIT, PARTE INAUDITA
ALTERA ZEQUUM LICET DIXERIT, HAUD
XQUUM FECERIT. He who determines any
matter without hearing both sides, though he
may have decided right, has not done justice.
6 Coke, 52a; 4 Bl.Comm. 283.
QUI ALTERIUS JURE UTITUR, EODEM JURE
UTI DEBET. He who uses the right of another
ought to use the same right. Poth. Traite De
Change, pt. 1, c. 4, § 114; Broom, Max. 473.
QUI APPROBAT NON REPROBAT. He who ap-
probates does not reprobate, [i. e., he cannot
both accept and reject the same thing.]
QUI BENE DISTINGUIT BENE DOCET. 2 Inst.
470. He who distinguishes well teaches well.
QUI BENE INTERROGAT BENE DOCET. He
who questions well teaches well. Information or
express averment may be effectually conveyed in
the way of interrogation. 3 Bulst. 227,
QUI CADIT A SYLLABA CADIT A TOTA CAU-
SA. He who fails in a syllable fails in his whole
cause. Bract. fol. 211.
QUI CONCEDIT ALIQUID, CONCEDERE VIDE-
TUR ET ID SINE QUO CONCESSIO EST IRRI-
TA, SINE QUO RES IPSA ESSE NON POTUIT.
11 Coke, 52. He who concedes anything is con-
sidered as conceding that without which his con-
cession would be void, without which the thing
itself could not exist.
QUI CONCEDIT ALIQUID CONCEDIT OMNE ID
SINE QUO CONCESSIO EST IRRITA. He who
grants anything grants everything without which
the grant is fruitless. Jenk. Cent. p. 32, case 63.
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QUI NON IMPROBAT
QUI CONFIRMAT NIKITA DAT. He who con•
firms does not give. 2 Bouv. Inst. no. 2069.
QUI CONTEMNIT PRIECEPTUM CONTEMNIT
PRIECIPIENTEM. He who contemns [contemp-
tuously treats] a command contemns the party
who gives it. 12 Coke 97.
QUI CUM ALIO CONTRAHIT, VEL EST, VEL
ESSE DEBET NON IGNARUS CONDITIONIS
EJUS. He who contracts with another either is
or ought to be not ignorant of his condition. Dig.
50, 17, 19; Story, Confi. Laws, § 76.
QUI DAT FINEM, DAT MEDIA AD FINEM
NECESSARIA. He who gives an end gives the
means to that end. Commonwealth v. Andrews,
3 Mass. 129.
QUI DESTRUIT MEDIUM DESTRUIT FINEM.
He who destroys the mean destroys the end. 10
Coke, 51b; Co. Litt. 161a; Shep. Touch. 342.
QUI DOIT INHERITER AL PERE DOIT IN-
HERITER AL FITZ. He who would have been
heir to the father shall be heir to the son. 2 Bl.
Comm. 223; Broom, Max. 517.
QUI EVERTIT CAUSAM, EVERTIT CAUSATUM
FUTURUM. He who overthrows the cause over-
throws its future effects. 10 Coke, 51.
QUI EX DAMNATO COITU NASCUNTUR IN-
TER LIBEROS NON COMPUTENTUR. Those
who are born of an unlawful intercourse are not
reckoned among the children. Co. Litt. 8a;
Broom, Max. 519.
QUI FACIT ID QUOD PLUS EST, FACIT ID
QUOD MINUS EST, SED NON CONVERTITUR.
He who does that which is more does that which
is less, but not vice versa. Bracton 207b.
QUI FACIT PER ALIUM FACIT PER SE. He
who acts through another acts himself, e., the
acts of an agent are the acts of the principal.]
Broom, Max. 818, et seq.; 1 Bl.Comm. 429; Story,
Ag. § 440.
QUI HABET JURISDICTIONEM ABSOLVENDI,
HABET JURISDICTIONEM LIGANDI. He whohas jurisdiction to loosen, has jurisdiction to bind.
Applied to writs of prohibition and consultation,
as resting on a similar foundation. 12 Coke, 60.
QUI HiERET IN LITERA IUERET IN CORTICE.
He who considers merely the letter of an instru-
ment goes but skin deep into its meaning. Co.
Litt. 289; Broom, Max. 685.
QUI IGNORAT QUANTUM SOLVERE DEBEAT,NON POTEST IMPROBUS VIDERE. He whodoes not know what he ought to pay, does notwant probity in not paying. Dig. 50, 17, 99.
QUI IMPROVIDE. A supersedeas granted wherea writ was erroneously sued out or misawarded.
QUI IN JUS DOMINIUMVE ALTERIUS SUCCE-DIT JURE EJUS UTI DEBET. He who succeedsto the right or property of another ought to usehis right, [i. e., holds it subject to the same rights
and liabilities as attached to It in the hands of
the assignor.] Dig. 50, 17, 177; Broom, Max. 473,
478.
QUI IN UTERO EST PRO JAM NATO RABE-
TUR, QUOTIES DE EJUS COMMODO QUIERI-
TUR. He who is in the womb is held as already
born, whenever a question arises for his benefit.
QUI JURE SUO UTITUR, NEMINI FACIT IN-
JURIAM. He who uses his legal rights harms no
one. Carson v. Western R. Co., 8 Gray (Mass.)
424. See Broom, Max. 379.
QUI JUSSU JUDICIS ALIQUOD FECERIT NON
VIDETUR DOLO MALO FECISSE, QUIA PA-
RERE NECESSE EST. Where a person does an
act by command of one exercising judicial author-
ity, the law will not suppose that he acted from
any wrongful or improper motive, because it was
his bounden duty to obey. 10 Coke, 76; Broom,
Max. 93.
QUI MALE AGIT ODIT LUCEM. He who acts
badly hates the light. 7 Coke, 66.
QUI MANDAT IPSE FECISSI VIDETUR. He
who commands [a thing to be done] is held to
have done it himself. Story, Bailm. § 147.
QUI MELIUS PROBAT MELIUS HABET. He
who proves most recovers most. 9 Vin. Abr. 235.
QUI MOLITUR INSIDIAS IN PATRIAM ID FA-
CIT QUOD INSANUS NAUTA PERFORANS
NAVEM IN QUA VEHITUR. He who betrays
his country is like the insane sailor who bores a
hole in the ship which carries him. 3 Inst. 36.
QUI NASCITUR SINE LEGITIMO MATRIMON-
I0, MATREM SEQUITUR. He who is born out
of lawful matrimony follows the condition of the
mother.
QUI NON CADUNT IN CONSTANTEM VIRUM
VANI TIMORES SUNT IESTIMANDI. 7 Coke,
27. Those fears are to be esteemed vain which do
not affect a firm man.
QUI NON HABET, ILLE NON DAT. He who has
not, gives not. He who has nothing to give, gives
nothing. A person cannot convey a right that is
not in him. If a man grant that which is not his,
the grant is void. Shep. Touch. 243; Watk. Cony.
191.
QUI NON HABET IN 'ERE, LUAT IN COR-PORE, NE QUIS PECCETUR IMPUNE. He who
cannot pay with his purse must suffer in his per-son, lest he who offends should go unpunished.
2 Inst. 173; 4 Bl.Comm. 20.
QUI NON HABET POTESTATEM ALIENANDIHABET NECESSITATEM RETINENDI. Hob.
336. He who has not the power of alienating is
obliged to retain.
QUI NON IMPROBAT, APPROBAT. 3 Inst. 27.
He who does not blame, approves.
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QUI NON LIBERE
QUI NON LIBERE VERITATEM PRONUNCIAT
PRODITOR EST VERITATIS. He who does not
freely speak the truth is a betrayer of the truth.
QUI NON NEGAT FATETUR. He who does not
deny, admits. A well-known rule of pleading.
Tray. Lat. Max. 503.
QUI NOisT OBSTAT QUOD OBSTARE POTEST,
FACERE VIDETUR. He who does not prevent
[a thing] which he can prevent, is considered to
do [as doing] it. 2 Inst. 146.
QUI NON PROHIBET ID QUOD PROHIBERE
POTEST ASSENTIRE VIDETUR. 2 Inst. 308.
He who does not forbid what he is able to pre-
vent, is considered to assent.
QUI NON PROPULSAT INJURIAM QUANDO
POTEST, INFERT. Jenk. Cent. 271. He who
does not repel an injury when he can, induces it.
QUI OBSTRUIT ADITUM, DESTRUIT COMMO-
DUM. He who obstructs a way, passage, or en-
trance destroys a benefit or convenience. He who
prevents another from entering upon land de-
stroys the benefit which he has from it. Co. Litt.
161a.
QUI OMNE DICIT NIHIL EXCLUDIT. 4 Inst.
81. He who says all excludes nothing.
QUI PARCIT NOCENTIBUS INNOCENTES
PUNIT. Jenk. Cent. 133. He who spares the
guilty punishes the innocent.
QUI PECCAT EBRIUS LUAT SOBRIUS. He who
sins when drunk shall be punished when sober.
Cary, 133; Broom, Max. 17.
QUI PER ALIUM FACIT PER SEIPSUM FA-
CERE VIDETUR. He who does a thing by an
agent is considered as doing it himself. Co. Litt.
258; Broom, Max. 817.
QUI PER FRAUDEM AGIT FRUSTRA AGIT.
2 Rolle, 17. What a man does fraudulently he
does in vain.
QUI POTEST ET DEBET VETARE, JUBET. He
who can and ought to forbid a thing [if he do not
forbid it] directs it. 2 Kent, Comm. 483, note.
QUI PRIMUM PECCAT ILIE FACIT RIXAM.
Godb. He who sins first makes the strife.
QUI PRIOR EST TEMPORE POTIOR EST JURE.
He who is before in time is the better in right.
Priority in time gives preference in law. Co. Litt.
14a; 4 Coke, 90a. A maxim of very extensive
application, both at law and in equity. Broom,
Max. 353-362; 1 Story, Eq. Jur. § 64d; Story,
Bailm. § 312.
QUI PRO ME ALIQUID FACIT NIHI FECISSE
VIDETUR. 2 Inst. 501. He who does anything
for me appears to do it to me.
QUI PROVIDET SIBI PROVIDET HiEREDIBUS.
He who provides for himself provides for his
heirs.
QUI RATIONEM IN OMNIBUS QUZERUNT RA-
TIONEM SUBVERTUNT. They who seek a rea-
son for everything subvert reason. 2 Coke, 75;
Broom, Max. 157.
QUI SCIENS SOLVIT INDEBITUM DONANDI
CONSILIO ID VIDETUR FECISSE. One who
knowingly pays what is not due is supposed to
have done it with the intention of making a gift.
Walker v. Hill, 17 Mass. 388.
QUI SEMEL ACTIONEM RENUNCIAVERIT
AMPLIUS REPETERE NON POTEST. He who
has once relinquished his action cannot bring it
again. 8 Coke, 59a. A rule descriptive of the
effect of a retraxit and nolle prosequi.
QUI SEMEL EST MALUS, SEMPER PRAESUMI-
TUR ESSE MALUS IN EODEM GENERE. He
who is once criminal is presumed to be always
criminal in the same kind or way. Cro. Car. 317;
Best, Ev. 345.
QUI SENTIT COMMODUM SENTIRE DEBET ET
ONUS. He who receives the advantage ought al-
so to suffer the burden. 1 Coke, 99; Broom, Max.
706-713.
QUI SENTIT ONUS SENTIRE DEBET ET COM-
MODUM. 1 Coke, 99a. He who bears the burden
of a thing ought also to experience the advantage
arising from it.
QUI TACET, CONSENTIRE VIDETUR. He who
is silent is supposed to consent. The silence of a
party implies his consent. Jenk. Cent. p. 32, case
64; Broom, Max. 138, 787.
QUI TACET CONSENTIRE VIDETUR, UBI
TRACTATUR DE EJUS COMMODO. 9 Mod. 38.
He who is silent is considered as assenting, when
his interest is at stake.
QUI TACET NON UTIQUE FATETUR, SED TA-
MEN VERUM EST EUM NON NEGARE. He
who is silent does not indeed confess, but yet it is
true that he does not deny. Dig. 50, 17, 142.
QUI TAM. Lat. "Who as well ." An ac-
tion brought by an informer, under a statute
which establishes a penalty for the commission or
omission of a certain act, and provides that the
same shall be recoverable in a civil action, part
of the penalty to go to any person who will bring
such action and the remainder to the state or
some other institution, is called a "qui tam ac-
tion"; because the plaintiff states that he sues as
well for the state as for himself. See In re Bar-
ker, 56 Vt. 14; Grover v. Morris, 73 N.Y. 478.
QUI TARDIUS SOLVIT, MINUS SOLVIT. He
who pays more tardily [than he ought] pays less
[than he ought.] Jenk. Cent. 58.
QUI TIMENT, CAVENT VITANT. They who
fear, take care and avoid. Branch, Princ.
QUI TCTUM DICIT NIHIL EXCIPIT. He who
says all excepts nothing.
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QUID SIT
QUI VULT DECIPI, DECIPIATUR. Let him who
wishes to be deceived, be deceived. Broom, Max.
782, note; 1 De Gex, M. & G. 687, 710; Shep.
Touch. 56.
QUIA. Lat. Because; whereas; inasmuch as.
QUIA DATUM EST NOBIS INTELLIGI. Be-
cause it is given to us to understand. Formal
words in old writs.
QUIA EMPTORES. Lat. "Because the purchas-
ers." The title of the statute of Westm. 3, (18
Edw. I. c. 1.) This statute took from the tenants
of common lords the feudal liberty they claimed
of disposing of part of their lands to hold of
themselves, and, instead of it, gave them a gen-
eral liberty to sell all or any part, to hold of the
next superior lord, which they could not have
done before without consent. The effect of this
statute was twofold: (1) To facilitate the aliena-
tion of fee-simple estates; and (2) to put an end
to the creation of any new manors, i. e., tenan-
cies in fee-simple of a subject. Brown.
QUIA ERRONICE EMANAVIT. Because it Is-
sued erroneously, or through mistake. A term in
old English practice. Yel. 83.
QUIA NON REFERT AUT QUIS INTENTIONEM
SUAM DECLARET, VERBIS, AUT REBUS IP-
SIS VEL FACTIS. It is immaterial whether the
intention be collected from the words used or the
acts done. Tocci v. Nowfall, 220 N.C. 550, 18 S.
E.2d 225, 228.
QUIA TIMET. Lat. Because he fears or appre-
hends. In equity practice. The technical name
of a bill filed by a party who seeks the aid of a
court of equity, because he fears some future
probable injury to his rights or interests, and re-
lief granted must depend upon circumstances.
2 Story, Eq. Jur. § 826; Pell v. McCabe, D.C.N.Y.,
254 F. 356, 357; Estate of Gilbert Smith v. Cohen,
123 N.J.Eq. 419, 196 A. 361, 364.
QUIBBLE. A cavilling or verbal objection. A.
slight difficulty raised without necessity or pro-
priety.
QUICK. Living; alive. "Quick chattels must
be put in pound-overt that the owner may give
them sustenance; dead need not." Finch, Law, b.
2, c. 6.
QUICK CHILD. One that has deve l oped so that
it moves within the mother's womb. State v.
Timm, 244 Wis. 508, 12 N.W.2d 670, 671.
QUICK WITH CHILD. Having conceived. Evans
v. People, 49 N.Y. 86, 1 Cow.Cr.R. 494.
QUICKENING. In medical jurisprudence. The
first motion of the fcetus in the womb felt by the
mother, occurring usually about the middle of
the term of pregnancy. State v. Patterson, 105
Kan. 9, 181 P. 609, 610.
QUICQUID ACQUIRITUR SERVO ACQUIRITUR
DOMINO. Whatever is acquired by the servant
is acquired for the master. Pull. Accts. 38, note.
Whatever rights are acquired by an agent are ac-
quired for his principal. Story, Ag. § 403.
QUICQUID DEMONSTRATIE REI ADDITUR
SATIS DEMONSTRATE FRUSTRA EST. What-
ever is added to demonstrate anything already
sufficiently demonstrated is surplusage. Dig. 33,
4, 1, 8; Broom, Max. 630.
QUICQUID EST CONTRA NORMAM RECTI
EST INJURIA. 3 Bulst. 313. Whatever is against
the rule of right is a wrong.
QUICQUID IN EXCESSU ACTUM EST, LEGE
PROHIBETUR. 2 Inst. 107. Whatever is done in
excess is prohibited by law.
QUICQUID JUDICIS AUCTORITATI SUBJICI-
TUR NOVITATI NON SUBJICITUR. Whatever
is subject to the authority of a judge is not sub-
ject to innovation. 4 Inst. 66.
QUICQUID PLANTATUR SOLO, SOLO CEDIT.
Whatever is affixed to the soil belongs to the
soil. Broom, Max. 401-431.
QUICQUID RECIPITUR, RECIPITUR SECUN-
DUM MODUM RECIPIENTIS. Whatever is re-
ceived is received according to the intention of the
recipient. Broom, Max. 810; Halkers. Max. 149;
14 Sim. 522; 2 Cl. & F. 681; 2 Cr. & J. 678; 14
East, 239, 243 c.
QUICQUID SOLVITUR, SOLVITUR SECUNDUM
MODUM SOLVENTIS; QUICQUID RECIPITUR,
RECIPITUR SECUNDUM MODUM RECIPIEN-
TIS. Whatever money is paid, is paid according
to the direction of the payer; whatever money is
received, is received according to that of the re-
cipient. 2 Vern. 606; Broom, Max. 810.
QUICUNQUE HABET JURISDICTIONEM ORDI-
NARIAM EST ILLIUS LOCI ORDINARIUS. Co.
Litt. 344. Whoever has an ordinary jurisdiction is
ordinary of that place.
QUICUNQUE JUSSU JUDICIS ALIQUID FE-
CERIT NON VIDETUR DOLO MALO FECISSE,
QUIA PARERE NECESSE EST. 10 Coke, 71.
Whoever does anything by the command of a
judge is not reckoned to have done it with an evil
intent, because it is necessary to obey.
QUID JURIS CLAMAT. In old English practice.
A writ which lay for the grantee of a reversion
or remainder, where the particular tenant would
not attorn, for the purpose of compelling him.
Termes de la Ley; Cowell.
QUID PRO QUO. What for what; something for
something. Used in law for the giving one valu-
able thing for another. It is nothing more than
the mutual consideration which passes between
the parties to a contract, and which renders it
valid and binding. Cowell.
QUID SIT JUS, ET IN QUO CONSISTIT IN-
JURIA, LEGIS EST DEFINIRE. What consti-
tutes right, and what injury, it is the business of
the law to declare. Co.Litt. 158h.
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QUID TURPI
QUID TURPI EX CAUSA PROMISSUM EST
NON VALET. A promise arising out of immoral
circumstances is invalid.
QUIDAM. Lat. Somebody. This term is used in
the French law to designate a person whose name
is not known.
QUIDQUID ENIM SIVE DOLO ET CULPA VEN-
DITORIS ACCIDIT IN EO VENDITOR SECUR-
US EST. For concerning anything which occurs
without deceit and wrong on the part of the ven-
dor, the vendor is secure. Brown v. Bellows, 4
Pick. (Mass.) 198.
QUIET, v. To pacify; to render secure or unas-
sailable by the removal of disquieting causes or
disputes. This is the meaning of the word in the
phrase "action to quiet title," which is a proceed-
ing to establish the plaintiff's title to land by
bringing into court an adverse claimant and
there compelling him either to establish his claim
or be forever after estopped from asserting it.
Wright v. Mattison, 18 How. 56, 15 L.Ed. 280.
QUIET, adj. Unmolested; tranquil; free from
interference or disturbance.
Covenant of quiet enjoyment. A covenant, us-
ually inserted in leases and conveyances on the
part of the grantor, promising that the tenant or
grantee shall enjoy the possession of the premises
in peace and without disturbance.
QUIETA NON MOVERE. Not to unsettle things
which are established. Green v. Hudson River R.
Co., 28 Barb. (N.Y.) 9, 22.
QUIETARE. L. Lat. To quit, acquit, discharge,
or save harmless. A formal word in , old deeds of
donation and other conveyances. Cowell.
QUIETE CLAMANTIA. L. Lat. In old English
law. Quitclaim. Bract. fol. 33b.
QUIETE CLAMARE. L. Lat. To quitclaim or re-
nounce all pretensions of right and title. Bract.
fols. 1, 5.
QUIETUS. In old English law. Quit; acquitted;
discharged. A word used by the clerk of the pipe,
and auditors in the exchequer, in their acquit-
tances or discharges given to accountants; usually
concluding with an abinde recessit quietus, (hath
gone quit thereof,) which was called a "quietus
est." Cowell.
In modern law. A final discharge or acquit-
tance, as from a debt or obligation; that which
silences claims. State ex rel. Jones v. Edwards,
203 La. 1039, 14 So.2d 829, 834.
QUIETUS REDDITUS. In old English law. Quit-
rent. Spelman. See Quitrent.
QUILIBET POTEST RENUNCIARE JURI PRO
SE INTRODUCTO. Every one may renounce or
relinquish a right introduced for his own benefit.
2 Inst. 183; Wing. Max. p. 483, max. 123; 4 Bl.
Comm. 317.
QUILLE. In French marine law. Keel; the keel
of a vessel. Ord. Mar. liv. 3, tit. 6, art. 8.
QUINQUE PORTUS. In old English law. The
Cinque Ports. Spelman.
QUINQUEPARTITE. Consisting of five parts;
divided into five parts.
QUINSTEME, or QUINZIME. Fifteenths; also
the fifteenth day after a festival. 13 Edw. I. See
Cowell.
QUINTAL, -or KINTAL. A weight of one hun-
dred pounds. Cowell.
QUINTERONE. A term used in the West Indies
to designate a person one of whose parents was a
white person and the other a quadroon. Also
spelled "quintroon." Daniel v. Guy, 19 Ark. 131.
QUINTO EXACTUS. In old practice. Called or
exacted the fifth time. A return made by the
sheriff, after a defendant had been proclaimed,
required, or exacted in five county courts succes-
sively, and failed to appear, upon which he was
outlawed by the coroners of the county. 3 Bl.
Comm. 283.
QUIRE OF DOVER. In English law. A record
in the exchequer, showing the tenures for guard-
ing and repairing Dover Castle, and determining
the services of the Cinque Ports. 3 How.State
Tr. 868.
QUIRITARIAN OWNERSHIP. In Roman law.
Ownership held by a title recognized by the mu-
nicipal law, in an object also recognized by that
law, and in the strict character of a Roman citi-
zen. "Roman law originally only recognized one
kind of dominion, called, emphatically, `quiritary
dominion.' Gradually, however, certain real rights
arose which, though they failed to satisfy all the
elements of the definition of quiritary dominion,
were practically its equivalent, and received from
the courts a similar protection. These real rights
might fall short of quiritary dominion in three re-
spects: (1) Either in respect of the persons in
whom they resided; (2) or of the subjects to
which they related; or (3) of the title by which
they were acquired." In the latter case, the own-
ership was called "bonitarian,"  e., "the property
of a Roman citizen, in a subject capable of quiri-
tary property, acquired by a title not known to
the civil law, but introduced by the praetor and
protected by his imperium or supreme executive
power;" e. g., where res mancipi had been trans-
ferred by mere tradition. Poste's Gaius' Inst. 186.
QUISQUIS EMT QUI VULT JURIS–CONSULT-
US HAIIERI CONTINUET STUDIUM, VELIT A
QUOCUNQUE DOCERI. Jenk. Cent. Whoever
wishes to be a juris-consult, let him continually
study, and desire to be taught by every one.
QUISQUIS PRZESUMITUR BONUS; ET SEM-
PER IN DUBIIS PRO REO RESPONDENDUM.
Every one is presumed good; and in doubtful
cases the resolution should be ever for the accus-
ed.
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QUOD A
QUIT, v. To leave; remove from; surrender
possession of; as when a tenant "quits" the prem-
ises or receives a "notice to quit." Schotter v.
Carnegie Steel Co., 272 Pa. 437, 116 A. 358, 359.
Notice to Quit
A written notice given by a landlord to his ten-
ant, stating that the former desires to repossess
himself of the demised premises, and that the
latter is required to quit and remove from the
same at a time designated, either at the expira-
tion of the term, if the tenant is in under a lease,
or immediately, if the tenancy is at will or by
sufferance.
QUIT, adj. Clear; discharged; free; also spok-
en of persons absolved or acquitted of a charge.
QUITCLAIM, v. In conveyancing. To release or
relinquish a claim; to execute a deed of quitclaim.
See Quitclaim, n.
QUITCLAIM, n. A release or acquittance given
to one man by another, in respect of any action
that he has or might have against him. Also ac-
quitting or giving up one's claim or title. Termes
de la Ley; Cowell.
Quitclaim deed. A deed of conveyance operat-
ing by way of release; that is, intended to pass
any title, interest, or claim which the grantor may
have in the premises, but not professing that
such title is valid, nor containing any warranty
or covenants for title. Cook v. Smith, 107 Tex.
119, 174 S.W. 1094, 1095, 3 A.L.R. 940; Pierson v.
Bill, 133 Fla. 81, 182 So. 631, 634.
QUIT RENT. A rent paid by the tenant of the
freehold, by which he goes quit and free,—that is,
discharged from any other rent. 2 Bla.Com. 42.
QUITTANCE. An abbreviation of "acquittance;"
a release, (q. v.).
QUO ANIMO. Lat. With what intention or mo-
tive.  Used sometimes as a substantive, in lieu
of the single word "animus," design or motive.
"The quo animo is the real subject of inquiry."
1 Kent, Comm. 77.
QUO JURE. Lat. In old English practice. A
writ which lay for one that had land in which an-
other claimed common, to compel the latter to
show by what title he claimed it. Cowell; Fitzh.
Nat.Brev. 128, F.
QUO LIGATUR, EO DISSOLVITUR. 2 Rolle, 21.
By the same mode by which a thing is bound, by
that is it released.
QUO MINUS. Lat. A writ upon which all pro-
ceedings in the court of exchequer were formerly
grounded. In it the plaintiff suggests that he is
the king's debtor, and that the defendant has
done him the injury or damage complained of,
quo minus sufficiens existit, by which he is less
able to pay the king's debt. This was originally
requisite in order to give jurisdiction to the court
of exchequer; but now this suggestion is a mere
form. 3 Bl.Comm. 46.
Also, a writ which lay for him who had a grant
of house-bote and hay-bote in another's woods,
against the grantor making such waste as that the
grantee could not enjoy his grant. Old Nat. Brev.
148.
QUO MODO QUID CONSTITUITUR EODEM
MODO DISSOLVITUR. Jenk.Cent. 74. In the
same manner by which anything is constituted
by that it is dissolved.
QUO WARRANTO. In old English practice. A
writ, in the nature of a writ of right for the king,
against him who claimed or usurped any office,
franchise, or liberty, to inquire by what authority
he supported his claim, in order to determine the
right. It lay also in case of non-user, or long
neglect of a franchise, or misuser or abuse of it;
being a writ commanding the defendant to show
by what warrant he exercises such a franchise,
having never had any grant of it, or having for-
feited it by neglect or abuse. 3 Bl.Comm. 262.
In England, and quite generally throughout the
United States, this writ has given place to an "in-
formation in the nature of a quo warranto,"
which, though in form a criminal proceeding, is
in effect a civil remedy similar to the old writ,
and is the method now usually employed for try-
ing the title to a corporate or other franchise, or
to a public or corporate office. Ames v. Kansas,
111 U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482; People v.
Londoner, 13 Colo. 303, 22 P. 764, 6 L.R.A. 444;
An extraordinary proceeding, prerogative in na-
ture, addressed to preventing a continued exer-
cise of authority unlawfully asserted. Johnson v.
Manhattan Ry. Co., N.Y., 53 S.Ct. 721, 289 U.S.
479, 77 L.Ed. 1331.
It is intended to prevent exercise of powers that are not
conferred by law, and is not ordinarily available to regu-
late the manner of exercising such powers. State ex rel.
Johnson v. Conservative Savings & Loan Ass'n, 143 Neb.
805, 11 N.W.2d 89, 92, 93.
QUOAD HOC. Lat. As to this; with respect to
this; so far as this in particular is concerned.
A prohibition quoad hoc is a prohibition as to
certain things among others. Thus, where a par-
ty was complained against in the ecclesiastical
court for matters cognizable in the temporal
courts, a prohibition quoad these matters issued,
e., as to such matters the party was prohibited
from prosecuting his suit in the ecclesiastical
court. Brown.
QUOAD SACRA. Lat. As to sacred things; for
religious purposes.
QUOCUMQUE MODO VELIT; QUOCUMQUE
MODO POSSIT. In any way he wishes; in any
way he can. Clason v. Bailey, 14 Johns., N.Y.,
484, 492.
QUOD A QUOQUE PCEN1E NOMINE EXACT-
UM EST ID EIDEM RESTITUERE NEMO CO-
GITUR. That which has been exacted as a pen-
alty no one is obliged to restore. Dig. 50, 17, 46.
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QUOD AB
QUOD AB INITIO NON VALET IN TRACTU
TEMPORIS NON CONVALESCET. That which
is bad in its commencement improves not by lapse
of time. Broom, Max. 178; 4 Coke, 2.
QUOD AD JUS NATURALE ATTINET OMNES
HOMINESIEQUALES SUNT. All men are equal
as far as the natural law is concerned. Dig. 50,
17, 32.
QUOD PEDIFICATUR IN AREA LEGATA CED-
IT LEGATO. Whatever is built on ground given
by will goes to the legatee. Broom, Max. 424.
QUOD ALIAS BONUM ET JUSTUM EST, SI
PER VIM VEL FRAUDEM PETATUR, MALUM
ET INJUSTUM EFFICITUR. 3 Coke, 78. What
otherwise is good and just, if it be sought by
force and fraud, becomes bad and unjust.
QUOD ALIAS NON FUIT LICITUM, NECESSI-
TAS LICITUM FACIT. What otherwise was not
lawful, necessity makes lawful. Fleta, lib. 5, c.
23, § 14.
QUOD APPROBO NON REPROBO. What I ap-
prove I do not reject. I cannot approve and re-
ject at the same time. I cannot take the benefit
of an instrument, and at the same time repudiate
it. Broom, Max. 712.
QUOD ATTINET AD JUS MILE, SERVI PRO
NULLIS HABENTUR, NON TAMEN ET JURE
NATURAL!, QUIA, QUOD AD JUS NATURALE
ATTINET, OMNES HOMINES 1EQUALL SUNT.
So far as the civil law is concerned, slaves are
not reckoned as persons, but not so by natural law,
for, so far as regards natural law, all men are
equal. Dig. 50, 17, 32.
QUOD BILLA CASSETUR. That the bill be
quashed. The common-law form of a judgment
sustaining a plea in abatement, where the proceed-
ing is by bill, i. e., by a capias instead of by orig-
inal writ.
QUOD CLERIC! BENEFICIATI DE CANCEL-
LARIA. A writ to exempt a clerk of the chancery
from the contribution towards the proctors of the
clergy in parliament, etc. Reg.Orig. 261.
QUOD CLERICI NON ELIGANTUR IN OFFICIO
BALLIVI, etc. A writ which lay for a clerk, who,
by reason of some land he had, was made, or was
about to be made, bailiff, beadle, reeve, or some
such officer, to obtain exemption from serving the
office. Reg.Orig. 187.
QUOD COMPUTET. That he account.
Judgment quod computet. A preliminary or
interlocutory judgment given in the action of ac-
count-render (also in the case of creditors' bills
against an executor or administrator,) directing
that accounts be taken before a master or audi-
tor.
QUOD CONSTAT CLARE NON DEBET VERI-
FICARI. What is clearly apparent need not be
proved. 10 Mod. 150.
QUOD CONSTAT CURIE OPERE TESTIUM
NON INDIGET. That which appears to the court
needs not the aid of witnesses. 2 Inst. 662.
QUOD CONTRA LEGEM FIT PRO INFECT()
HABETUR. That which is done against law is
regarded as not done at all. 4 Coke, 31a.
QUOD CONTRA RATIONEM JURIS RECEPTUM
EST, NON EST PRODUCENDUM AD CONSE-
QUENTIAS. That which has been received
against the reason of the law is not to be drawn
into a precedent. Dig. 1, 3, 14.
QUOD CUM. In pleading. For that whereas.
A form of introducing matter of inducement in
certain actions, as assumpsit and case.
QUOD DATUM EST ECCLESIPE, DATUM EST
DEO. 2 Inst. 2. What is given to the church is
given to God.
QUOD DEMONSTRANDI CAUSA ADDITUR
REI SATIS, DEMONSTRATIE, FRUSTRA FIT.
10 Coke, 113. What is added to a thing sufficient-
ly palpable, for the purpose of demonstration, is
vain.
QUOD DUBITAS, NE FECERIS. What you
doubt of, do not do. In a case of moment, espe-
cially in cases of life, it is safest to hold that in
practice which hath least doubt and danger. 1
Hale, P.C. 300.
QUOD EI DEFORCEAT. In English law. The
name of a writ given by St. Westm. 2, 13 Edw.
I. c. 4, to the owners of a particular estate, as
for life, in dower, by the curtesy, or in fee-tail, who
were barred of the right of possession by a recov-
ery had against them through their default or non-
appearance in a possessory action, by which the
right was restored to him who had been thus un-
warily deforced by his own default. 3 Bl.Comm.
193.
QUOD ENIM SEMEL AUT BIS EXISTIT, PR1E-
TEREUNT LEGISLATOR -ES. That which never
happens but once or twice, legislators pass by.
Dig. 1, 3, 17.
QUOD EST EX NECESSITATE NUNQUAM IN-
TRODUCITUR, NISI QUANDO NECESSARIUM.
2 Rolle, 502. That which is of necessity is never
introduced, unless when necessary.
QUOD EST INCONVENIENS AUT CONTRA RA-
TIONEM NON PERMISSUM EST IN LEGE. Co.
Litt. 178a. That which is inconvenient or against
reason is not permissible in law.
QUOD EST NECESSARIUM EST LICITUM.
What is necessary is lawful. Jenk.Cent. p. 76,
case 45.
QUOD FACTUM EST, SUM IN OBSCURO SIT,
EX AFFECTIONE CUJUSQUE CAPIT INTER-
PRETATIONEM. When there is doubt about
an act, it receives interpretation from the
(known) feelings of the actor. Dig. 50, 17, 68, 1.
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QUOD NULLIUS
QUOD FIERI DEBET FACILE PRAZESUMITUR.
Halk. 153. That which ought to be done is easily
presumed.
QUOD FIERI NON DEBET, FACTUM VALET.
That which ought not to be done, when done, is
valid. Broom, Max. 182.
QUOD FUIT CONCESSUM. Which was granted.
A phrase in the reports, signifying that an argu-
ment or point made was conceded or acquiesced
in by the court.
QUOD IN JURE SCRIPT() "JUS" APPELLATUR,
ID IN LEGE ANGLIIE "RECTUM" ESSE DICI-
TUR. What in the civil law is called "jus," in the
law of England is said to be "rectum," (right.)
Co.Litt. 260; Fleta, 1. 6, c. 1, § 1.
QUOD IN MINOR! VALET VALEBIT IN MA-
JORI; ET QUOD IN MAJORI NON VALET NEC
VALEBIT IN MINOR!. Co. Litt. 260a. That
which is valid in the less shall be valid in the
greater; and that which is not valid in the great-
er shall neither be valid in the less.
QUOD IN UNO SIMILIUM VALET VALEBIT IN
ALTERO. That which is effectual in one of two
like things shall be effectual in the other. Co.
Litt. 191a.
QUOD INCONSULTO FECIMUS, CONSULTIUS
REVOCEMUS. Jenk.Cent. 116. What we have
done without due consideration, upon better con-
sideration we may revoke.
QUOD INITIO NON VALET, TRACTU TEMPOR-
IS NON VALET. A thing void in the beginning
does not become valid by lapse of time.
QUOD INITIO VITIOSUM EST NON POTEST
TRACTU TEMPORIS CONVALESCERE. That
which is void from the beginning cannot become
valid by lapse of time. Dig. 50, 17, 29.
QUOD IPSIS QUI CONTRAXERUNT OBSTAT,
ET SUCCESSORIBUS EORUM OBSTABIT. That
which bars those who have made a contract will
bar their successors also. Dig. 50, 17, 143.
QUOD JUSSU. Lat. In the civil law. The name
of an action given to one who had contracted with
a son or slave, by order of the father or master,
to compel such father or master to stand to the
agreement. Hallifax, Civil Law, b. 3, c. 2, no.
3; Inst. 4, 7, 1.
QUOD JUSSU ALTERIUS SOLVITUR PRO EO
EST QUASI IPSI SOLUTUM ESSET. That
which is paid by the order of another is the same
as though it were paid to himself. Dig. 50, 17,
180.
QUOD MEUM EST SINE FACTO MEO VEL DE-
FECTU ME0 AMITTI VEL IN ALIUM TRANS-
FERRI NON POTEST. That which is mine can-
not be lost or transferred to another without my
alienation or forfeiture. Broom, Max. 465.
QUOD MEUM EST SINE ME AUFERRI NON
POTEST. That which is mine cannot be taken
away without me, [without my assent.] Jenk.
Cent. p. 251, case 41.
QUOD MINUS EST IN OBLIGATIONEM VIDE-
TUR DEDUCTUM. That which is the less is
held to be imported into the contract; (e. g., A
offers to hire B.'s house at six hundred dollars,
at the same time B. offers to let it for five hundred
dollars; the contract is for five hundred dollars.)
1 Story, Cont. 481.
QUOD NATURALIS RATIO INTER OMNES
HOMINES CONSTITUIT, VOCATUR JUS GEN-
TIUM. That which natural reason has estab-
lished among all men is called the "law of na-
tions." 1 Bl.Comm. 43; Dig. 1, 1, 9; Inst. 1, 2, 1.
QUOD NECESSARIE INTELLIGITUR NON DE-
EST. 1 Bulst. 71. That which is necessarily un-
derstood is not wanting.
QUOD NECESSITAS COGIT, DEFENDIT. Hale,
P. C. 54. That which necessity compels, it justi-
fies.
QUOD NON APPARET NON EST; ET NON AP-
PARET JUDICIALITER ANTE JUDICIUM. 2
Inst. 479. That which appears not is not; and
nothing appears judicially before judgment.
QUOD NON CAPIT CHRISTUS, CAPIT FISCUS.
What Christ [the church] does not take the treas-
ury takes. Goods of a felo de se go to the king.
A maxim in old English law. Yearb. P. 19 Hen.
VI. 1.
QUOD NON FUIT NEGATUM. Which was not
denied. A phrase found in the old reports, sig-
nifying that an argument or proposition was not
denied or controverted by the court. Latch, 213.
QUOD NON HABET PRINCIPIUM NON HABET
FINEM. Wing. Max. 79; Co. Litt. 345a. That
which has not beginning has not end.
QUOD NON LEGITUR, NON CREDITUR. What
is not read is not believed. 4 Coke, 304.
QUOD NON VALET IN PRINCIPALI, IN ACCES-
SORIO SEU CONSEQUENTI NON VALEBIT;
ET QUOD NON VALET IN MAGIS PROPINQUO
NON VALEBIT IN MAGIS REMOTO. 8 Coke,
78. That which is not good against the principal
will not be good as to accessories or consequenc-
es; and that which is not of force in regard to
things near it will not be of force in regard to
things remote from it.
QUOD NOTA. Which note; which mark. A re-
porter's note in the old books, directing attention
to a point or rule. Dyer, 23.
QUOD NULLIUS ESSE POTEST ID UT ALICU-
JUS FIERET NULLA OBLIGATIO VALET EF-
FICERE. No agreement can avail to make that
the property of any one which cannot be acquired
as property. Dig. 50, 17, 182.
QUOD NULLIUS EST, EST DOMINI REGIS.
That which is the property of nobody belongs to
our lord the king. Fleta, lib. 1, c. 3; Broom, Max.
354.
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QUOD NULLIUS
QUOD NULLIUS EST, ID RATIONE NATUR-
AL! OCCUPANT! CONCEDITUR. That which
is the property of no one is, by natural reason,
given to the [first] occupant. Dig. 41, 1, 3; Inst.
2, 1, 12. Adopted in the common law. 2 Bl.Comm.
258.
QUOD NULLUM EST, NULLUM PRODUCIT EF•
FECTUM. That which is null produces no effect.
Tray. Leg.Max. 519.
QUOD OMNES TANGIT AB OMNIBUS NDEBET
SUPPORTARI. That which touches or concerns
all ought to be supported by all. 3 How.State Tr.
878, 1087.
• QUOD PRINCIPI PLACUIT, LEGIS HABET
VIGOREM; UT POTE CUM LEGE REGIA, QUIE
DE IMPERIO EJUS LATA EST, POPULUS EI
ET IN EUM OMNE SUUM IMPERIUM ET PO-
TESTATEM CONFERAT. The will of the em-
peror has the force of law; for, by the royal law
which has been made concerning his authority,
the people have conferred upon him all its sov-
ereignty and power. Dig. 1. 4. 1; Inst. 1. 2. 1;
Fleta, 1. 1, c. 17, § 7; Brac. 107; Selden, Diss. ad
Flet. c. 3, § 2.
QUOD PRIUS EST VERIUS EST; ET QUOD PRI-
US EST TEMPORE POTIUS EST JURE. Co.Litt.
347. What is first is true; and what is first in
time is better in law.
QUOD PARTES REPLACITENT. That the par-
ties do replead.
Judgment quod partes replacitent. A judg-
ment for repleader which is given if an issue is
formed on so immaterial a point that the court
cannot know for whom to give judgment. The
parties must then reconstruct their pleadings.
QUOD PARTITIO FIAT. That partition be made.
The name of the judgment in a suit for parti-
tion, directing that a partition be effected.
QUOD PENDET NON EST PRO EO QUASI SIT.
What is in suspense is considered as not existing
during such suspense. Dig. 50, 17, 169, 1.
QUOD PER ME NON POSSUM, NEC PER ALI-
UM. What I cannot do by myself, I cannot by
another. 4 Coke, 24b; 11 Coke, 87a.
QUOD PER RECORDUM PROBATUM, NON
DEBET ESSE NEGATUM. What is proved by
record ought not to be denied.
QUOD PERMITTAT. That he permit. In old
English law. A writ which lay for the heir of
him that was disseised of his common of pasture,
against the heir of the disseisor. Cowell.
QUOD PERMITTAT PROSTERNERE. That he
permit to abate. In old practice. A writ, in the
nature of a writ of right, which lay to abate a
nuisance. 3 Bl.Comm. 221. Conhocton Stone
Road v. Buffalo, etc., R. Co., 51 N.Y. 579, 10 Am.
Rep. 646.
QUOD PERSONA NEC PREBENDARII, etc. A
writ which lay for spiritual persons, distrained in
their spiritual possessions, for payment of a fif-
teenth with the rest of the parish. Fitzh. Nat.
Brev. 175. Obsolete.
QUOD POPULUS POSTREMUM JUSSIT, ID JUS
RATUM ESTO. What the people have last en-
acted, let that be the established law. A law of
the Twelve Tables, the principle of which is still
recognized. 1 Bl.Comm. 89.
QUOD PRIMUM EST INTENTIONE ULTIMUM
EST IN OPERATIONE. That which is first in
intention is last in operation. Bac.Max.
QUOD PRO MINORE LICITUM EST ET PRO
MAJORE LICITUM EST. 8 Coke, 43. That
which is lawful as to the minor is lawful as to
the major.
QUOD PROSTRAVIT. That he do abate. The
name of a judgment upon an indictment for a
nuisance, that the defendant abate such nuisance.
QUOD PURE DEBETUR PRZESENTI DIE DE-
BETUR. That which is due unconditionally is
due now. Tray. Leg. Max. 519.
QUOD QUIS EX CULPA SUA DAMNUM SEN-
TIT NON INTELLIGITUR DAMNUM SEN-
TIRE. The damage which one experiences from
his own fault is not considered as his damage.
Dig. 50, 17, 203.
QUOD QUIS SCIENS INDEBITUM DEBIT HAC
MENTE, UT POSTEA REPETERET, REPETERE
NON POTEST. That which one has given, know-
ing it not to be due, with the intention of rede-
manding it, he cannot recover back. Dig. 12, 6,
50.
QUOD QUISQUIS NORIT IN HOC SE EXER-
CEAT. Let every one employ himself in what
he knows. 11 Coke, 10.
QUOD RECUPERET. That he recover. The or-
dinary form of judgments for the plaintiff in ac-
tions at law. 1 Archb.Pr.K.B. 225; 1 Burrill, Pr.
246.
Judgment of quod recuperet. When an issue
in fact, or an issue in law arising on a peremptory
plea, is determined for the plaintiff, the judg-
ment is "that the plaintiff do recover," etc., which
is called a judgment quod recuperet; Steph.Pl.
126. It is either final or interlocutory, according
as the quantum of damages is or is not ascertain-
ed at the rendition of the judgment.
QUOD REMEDIO DESTITUITUR IPSA RE VAL-
ET SI CULPA ABSIT. That which is without
remedy avails of itself, if there be no fault in the
party seeking to enforce, it. Broom, Max. 212.
QUOD SEMEL AUT BIS EXISTIT PRZETERUNT
LEGISLATORES. Legislators pass over what
happens [only] once or twice. Dig. 1, 3, 6;
Broom, Max. 46.
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QUOTATION
QUOD SEMEL MEUM EST AMPLIUS MEUM
ESSE NON POTEST. Co. Litt. 49b. What is
once mine cannot be more fully mine.
QUOD SEMEL PLACUIT IN ELECTIONE, AM-
PLIUS DISPLICERE NON POTEST. Co. Litt.
146. What a party has once determined, in a case
where he has an election, cannot afterwards be
disavowed.
QUOD SI CONTINGAT. That if it happen.
Words by which a condition might formerly be
created in a deed. Litt. § 330.
QUOD SOLO INIEDIFICATUR SOLO CEDIT.
Whatever is built on the soil is an accessory of
the soil. Inst. 2. 1. 29; 16 Mass. 449; 2 Bouv.Inst.
n. 1571.
QUOD SUB CERTA FORMA CONCESSUM VEL
RESERVATUM EST NON TRAHITUR AD VA-
LOREM VEL COMPENSATIONEM. That which
is granted or reserved under a certain form is not
[permitted to bel drawn into valuation or com-
pensation. Bac.Max. 26, reg. 4. That which is
granted or reserved in a certain specified form
must be taken as it is granted, and will not be
permitted to be made the subject of any adjust-
ment or compensation on the part of the grantee.
Ex parte Miller, 2 Hill (N.Y.) 423.
QUOD SUBINTELLIGITUR NON DEEST. What
is understood is not wanting. 2 td.Raym. 832.
QUOD TACITE INTELLIGITUR DEESSE NON
VIDETUR. What is tacitly understood is not
considered to be wanting. 4 Coke, 22a.
QUOD VANUM ET INUTILE EST, LEX NON RE-
QUIRIT. Co.Litt. 319. The law requires not
what is vain and useless.
QUOD VERO CONTRA RATIONEM JURIS RE-
CEPTUM EST, NON EST PRODUCENDUM AD
CONSEQUENTIAS. But that which has been ad-
mitted contrary to the reason of the law, ought not
to be drawn into precedents. Dig. 1. 3. 14; Broom,
Max. 158.
QUOD VIDE. Which see. A direction to the read.
er to look to another part of the book, or to an-
other book, there named, for further information.
Usually abbreviated "q. v."
QUOD VOLUIT NON DIXIT. What he intended
he did not say, or express. An answer sometimes
made in overruling an argument that the law-
maker or testator meant so and so. 1 Kent,
Comm. 468, note; Mann v. Mann's Ex'rs, 1 Johns.
Ch. (N.Y.) 235.
QUODCUNQUE ALIQUIS OB TUTELAM COR-
PORTS SUI FECERIT, JURE ID FECISSE VIDE-
TUR. 2 Inst. 590. Whatever any one does in
defense of his person, that he is considered to
have done legally.
QUODQUE DISSOLVITUR EODEM MODO QUO
LIGATUR. 2 Rolle, 39. In the same manner that
a thing is bound, in the same manner it is un-
bound.
QUONIAM ATTACHIAMENTA. (Since the at-
tachments.) One of the oldest books in the Scotch
law. So called from the two first words of the
volume. Jacob; Whishaw.
QUORUM. A majority of the entire body; e. g.,
a quorum of a state supreme court. Mountain
States Telephone & Telegraph Co. v. People, 68
Colo. 487, 190 P. 513, 517.
Such a number of the members of a body as is competent
to transact business in the absence of the other members.
Morton v. Talmadge, 166 Ga. 620, 144 S.E. 111.
The idea of a quorum is that, when that required num-
ber of persons goes into a session as a body, such as di-
rectors of a corporation, the votes of a majority thereof
are sufficient for binding action. Benintendi v. Kenton Ho-
tel, 294 N.Y. 112, 60 N.E.2d 829, 831.
When a committee, board of directors, meeting of share-
holders, legislature or other body of pei sons cannot act
unless a certain number at least of them are present, that
number is called a "quorum." Sweet. In the absence of
any law or rule fixing the quorum, it consists of a majority
of those entitled to act. Ex parte Willcocks, 7 Cow.
(N.Y.) 409, 17 Am.Dec. 525; Snider v. Rinehart, 18 Colo.
18, 31 P. 716; In re Webster Loose Leaf Filing Co., D.C.
N.J., 240 F. 779, 784; Application of McGovern, 44 N.Y.S.
2d 132, 137, 180 Misc. 508.
Justices of the Quorum
In English law, those justices of the peace
whose presence at a session is necessary to make
a lawful bench. All the justices of the peace for
a county are named and appointed in one com-
mission, which authorizes them all, jointly and sev-
erally, to keep the peace, but provides that some
particular named justices or one of them shall al-
ways be present when business is to be transact-
ed, the ancient Latin phrase being "quorum unum
A. B. esse volumus." These designated persons
are the "justices of the quorum." But the dis-
tinction is long since obsolete. 1 Bl.Comm. 351;
Snider v. Rinehart, 18 Colo. 18, 31 P. 716.
QUORUM PRIETEXTU NEC AUGET NEC MI-
NUIT SENTENTIAM, SED TANTUM CONFIRM-
AT PRZEMISSA, Plowd. 52. "Quorum prcetextu"
neither increases nor diminishes a sentence, but
only confirms that which went before.
QUOT. In old Scotch law. A twentieth part of
the movable estate of a person dying, which was
due to the bishop of the diocese within which the
person resided. Bell.
QUOTA. A proportional part or share, the pro-
portional part of a demand or liability, falling
upon each of those who are collectively responsi-
ble for the whole.
QUOTATION. The production to a court or judge
of the exact language of a statute, precedent, or
other authority, in support of an argument or
proposition advanced.
The transcription of part of a literary composi-
tion into another book or writing.
A statement of the market price of one or more
commodities; or the price specified to a corre-
spondent.
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QUOTIENS
QUOTIENS DUBIA INTERPRETATIO LIBER-
TATIS EST, SECUNDUM LIBERTATEM RE-
SPONDENDUM ERIT. Whenever there is a
doubt between liberty and slavery, the decision
must be in favor of liberty. Dig. 50. 17. 20.
QUOTIENS IDEM SERMO DUAS SENTENTIAS
EXPRIMIT, EA POTISSIMUM ACCIPIATUR,
QUIE REI GERENDZE APTIOR EST. Whenever
the same words express two meanings, that is to
be taken which is the better fitted for carrying
out the proposed end. Dig. 50. 17. 67.
QUOTIENT VERDICT. A money verdict the
amount of which is fixed by the following proc-
ess: Each juror writes down the sum he wishes
to award by the verdict; these amounts are all
added together, and the total is divided by twelve,
(the number of the jurors,) and the quotient
stands as the verdict of the jury by their agree-
ment. Hamilton v. Owego Waterworks, 48 N.Y.S.
106, 22 App.Div. 573. Such verdict is invalid.
Hoffman v. City of St. Paul, 187 Minn. 320, 245
N.W. 373, 374, 86 A.L.R. 198; Stone v. State, 24
Ala.App. 395, 135 So. 646, 647; Killion v. Dink-
lage, 121 Neb. 322, 236 N.W. 757, 759.
QUOTIES DUBIA INTERPRETATIO LIBERTA-
TIS EST, SECUNDUM LIBERTATEM RESPON-
DENDUM ERIT. Whenever the interpretation
of liberty is doubtful, the answer should be on the
side of liberty. Dig. 50, 17, 20.
QUOTIES IDEM SERMO DUAS SENTENTIAS
EXPRIMIT, EA POTISSIMUM EXCIPIATUR,
QUIE REI GERENDIE APTIOR EST. Whenever
the same language expresses two meanings that
should be adopted which is the better fitted for
carrying out the subject-matter. Dig. 50, 17, 67.
QUOTIES IN STIPULATIONIBUS AMBIGUA
ORATIO EST, COMMODISSIMUM EST ID AC-
CIPI QUO RES DE QUA AGITUR IN TUTO SIT.
Whenever the language of stipulations is ambigu-
ous, it is most fitting that that [sense] should be
taken by which the subject-matter may be pro-
tected. Dig. 45, 1, 80.
QUOTIES IN VERBIS NULLA EST AMBIGUI-
TAS, IBI NULLA EXPOSITIO CONTRA VERBA
FIENDA EST. Co. Litt. 147. When in the words
there is no ambiguity, then no exposition con-
trary to the words is to be made.
QUOTUPLEX. Lat. Of how many kinds; how
many fold. A term of frequent occurrence in
Sheppard's Touchstone.
QUOUSQUE. Lat. How long; how far; until.
In old conveyances it is used as a word of limita-
tion. 10 Coke, 41.
QUOVIS MODO. Lat. In whatever manner.
QUUM DE LUCRO DUORUM QUERATUR,
MELIOR EST CAUSA POSSIDENTIS. When the
question is as to the gain of two persons, the title
of the party in possession is the better one. Dig.
50, 17, 126, 2.
QUUM IN TESTAMENTO AMBIGUE AUT ETI-
AM PERPERAM SCRIPTUM EST, BENIGNE
INTERPRETARI ET SECUNDUM ID QUOD
CREDIBLE ET COGITATUM, CREDENDUM
EST. When in a will an ambiguous or even an
erroneous expression occurs, it should be con-
strued liberally and in accordance with what is
thought the probable meaning of the testator.
Dig. 34, 5, 24; Broom, Max. 437.
QUUM PRINCIPALIS CAUSA NON CONSISTIT
NE EA QUIDEM QUIE SEQUUNTUR LOCUM
HABENT. When the principal does not hold,
the incidents thereof ought not to obtain. Broom,
Max. 496.
QUUM QUOD AGO NON VALET UT AGO,
VALEAT QUANTUM VALERE POTEST. 1
Vent. 216. When what I do is of no force as to
the purpose for which I do it, let it be of force to
as great a degree as it can.
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RAFFLE
R
R. In the signatures of royal persons, "R." is
an abbreviation for "rex" (king) or "regina"
(queen.)  In descriptions of land, according to
the divisions of the governmental survey, it stands
for "range." Ottumwa, etc., R. Co. v. McWilliams,
71 Iowa 164, 32 N.W. 315; Simms v. Rolfe, 177
Ark. 52, 5 S.W.2d 718, 719.
R. E. A. Rural Electrification Administration.
R. G. An abbreviation for Regula Generalis, a
general rule or order of court; or for the plural
of the same.
R. L. This abbreviation may stand either for
"Revised Laws" or "Roman law."
R. S. An abbreviation for "Revised Statutes."
RACE. An ethnical stock; a great division of
mankind having in common certain distinguishing
physical peculiarities constituting a comprehen-
sive class appearing to be derived from a dis-
tinct primitive source. A tribal or national stock,
a division or subdivision of one of the great racial
stocks of mankind distinguished by minor peculi-
arities. Descent. In re Halladjian, C.C.Mass.,
174 F. 834; Ex parte (Ng.) Fung Sing, D.C.Wash.,i
6 F.2d 670.
RACE-WAY. An artificial canal dug in the earth;
a channel cut in the ground. Wilder v. De Cou, 26
Minn. 17, 1 N.W. 48. The channel for the current
that drives a waterwheel. Webster.
RACHAT. In French law. The right of repur-
chase which, in English and American law, the
vendor may reserve to himself. It is also called
"r6mOre." Brown.
RACHATER. L. Fr. To redeem; to repurchase,
(or buy back.) Kelham.
RACHETUM. In Scotch law. Ransom; corre-
sponding to Saxon "weregild," a pecuniary com-
position for an offense. Skene; Jacob.
RACHDIBURGIL In the legal polity of the Sali-
ans and Ripuarians and other Germanic peoples,
the name given to the judges or assessors who
sat with the count in his mallum, (court,) and
were generally associated with him in other mat-
ters. Spelman.
RACING TIP. A false assumption of vaticination
concerning the result of a speed contest between
animals justly termed thoroughbred. Armstrong
Racing Publications v. Moss, 43 N.Y.S.2d 171, 173,
181 Misc. 966.
RACK. An engine of torture anciently used in
the inquisitorial method of examining persons
charged with crime, the office of which was to
break the limbs or dislocate the joints.
RACK-RENT. A rent of the full value of the ten-
ement, or near it. 2 Bl.Comm. 43.
RACK-VINTAGE. Wines drawn from the lees.
Cowell.
RACKET. Engaging in an operation to make
money illegitimately, implying continuity of be-
havior. Bradley v. Conners, 7 N.Y.S.2d 294, 295,
169 Misc. 442.
RACKETEER. A person who makes money by
violations of the Penal Law, particularly those vio-
lations accompanied by violence. Continental
Bank & Trust Co. of New York v. 200 Madison
Avenue Corporation, Sup., 43 N.Y.S.2d 402, 407.
RACKETEERING. An organized conspiracy to
commit the crimes of extortion or coercion,
attempts to commit extortion or coercion. From
the standpoint of extortion, it is the obtaining of
money or property from another, with his con-
sent, induced by the wrongful use of force or fear.
The fear which constitutes the legally necessary
element in extortion is induced by oral or written
threats to do an unlawful injury to the property
of the threatened person by means of explosives,
fire, or otherwise; and to kill, kidnap, or injure
him or a relative of his or some member of his
family. From the standpoint of coercion, it usu-
ally takes the form of compelling by use of simi-
lar threats to person or property a person to do
or abstain from doing an act which such other
person has the legal right to do or abstain from
doing, such as joining a so-called protective as-
sociation to protect his right to conduct a busi-
ness or trade. United States v. McGlone, D.C.
Pa., 19 F.Supp. 285, 287.
RADICALS. A political party. The term arose
in England, in 1818, when the popular leaders,
Hunt, Cartwright, and others, sought to obtain
a radical reform in the representative system of
parliament. Bolingbroke (Disc. Parties, Let. 18)
employs the term in its present accepted sense:
"Such a remedy might have wrought a radical
cure of the evil that threatens our constitution,"
etc. Wharton.
RADIUS. A straight line drawn from the centre
of a circle to any point of the circumference. Its
length is half the diameter of that circle, or is the
space between the centre and the circumference.
State v. Berard, 40 La.App. 174, 3 So. 463.
RADOUR. In French law. A term including the
repairs made to a ship, and a fresh supply of fur-
niture and victuals, munitions, and other provi-
sions required for the voyage. Pardessus, n. 602.
RAFFLE. A kind of lottery in which several
persons pay, in shares, the value of something
put up as a stake, and then determine by chance
(as by casting dice) which one of them shall be-
come the sole possessor of it. Webster; Prender-
gast v. State, 41 Tex.Cr.R. 358, 57 S.W. 850. Peo-
ple v. American Art Union, 7 N.Y. 241.
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RAGEMAN
RAGEMAN. A statute, so called, of justices as-
signed by Edward I. and his council, to go a cir-
cuit through all England, and to hear and deter-
mine all complaints of injuries done within five
years next before Michaelmas, in the fourth year
of his reign. Spelman. Also a rule, form, regi-
men, or precedent.
RAGMAN'S ROLL, or RAGIMUND'S ROLL. A
roll, called from one Ragimund or Ragimont, a
legate in Scotland, who, summoning all the bene-
ficed clergymen in that kingdom, caused them on
oath to give in the true value of their benefices,
according to which they were afterwards taxed by
the court of Rome. Wharton.
RAIL CHAIR. A device used where the ends of
rails come together; it holds the separate rails
firmly together and in alignment and so gives
them the effect of being one continuous rail. Rail-
road Supply Co. v. Hart Steel Co., C.C.A.I11., 222
F. 261, 269.
RAILROAD, v. With respect to legislation, to
force through legislation over the objection of a
minority. Roane v. Columbian Pub. Co., 126
Wash. 416, 218 P. 213, 214.
RAILROAD, n. A road or way on which iron or
steel rails are laid for wheels to run on, for the
conveyance of heavy loads in cars or carriages
propelled by steam or other motive power; a road
or way on which iron rails are laid for transpor-
tation purposes, as incident to the possession or
ownership of which important franchises and
rights affecting the public are attached. A rail-
way. New Deemer Mfg. Co. v. Kilpatrick, 129
Miss. 268, 92 So. 71, 73; Muskogee Electric Trac-
tion Co. v. Doering, 70 Okl. 21, 172 P. 793, 794, 2
A.L.R. 94. An enterprise created and operated to
carry on a fixed track passengers and freight, or
passengers or freight, for rates or tolls, without
discrimination as to those who demand trans-
portation. Bradley v. Degnon Contracting Co.,
224 N.Y. 60, 120 N.E. 89, 91. In a strictly accu-
rate sense, it is a generic term, and includes all
kinds of railroads, whether street railways, horse
car lines, cable car lines, electric trolley lines,
suburban lines, interurban lines, or steam rail-
roads engaged in general transportation. In re
Columbia Ry., Gas & Electric Co., D.C.S.C., 24
F.2d 828, 831.
The term "railroad" or "railway" may in a broad sense
include all structures which are necessary to operation of
railroad. Smith v. Northern Pac. Ry. Co., 50 Mont. 539,
148 P. 393, 394.
Whether or not "railroad" includes roads operated by
horse-power, electricity, cable-lines, etc., will generally de-
pend upon the context of the statute in which it is found.
The decisions on this point are at variance. Frisco Lumber
Co. v. Spivey, 40 Okl. 633, 140 P. 157, 158; Morgan v.
Grande Ronde Lumber Co., 76 Or. 440, 148 P. 1122, 1123.
If scope of a statute relating to railroads shows that both
railroads and street railroads were within the legislative
contemplation, the word "railroad" will include street rail-
roads; but, if act was aimed at railroads proper, street
railroads are excluded from its provisions. In re Columbia
Ry., Gas & Electric Co., D.C.S.C., 24 F.2d 828, 831.
Railroad is usually limited to roads for heavy steam
transportation and also to steam roads partially or wholly
electrified or roads for heavy traffic designed originally
for electric traction. The lighter electric street-car lines
and the like are usually termed railways. In Great Britain
and the British colonies, except Canada, all such roads,
whether for heavy or light traffic, are usually called rail-
ways. Webster, Diet.
See, also, Railway.
Branch Railroad
A road connected with the main line, not as a
mere incident thereto, to facilitate the business
of the main line, but to do a business of its own
by transporting persons and property to and from
places not reached by the main line. Illinois Cent.
R. Co. v. East Sioux Falls Quarry Co., 33 S.D. 63,
144 N.W. 724, 726.
Railroad Car
Any vehicle constructed for operation over rail-
road tracks. State v. Tardiff, 111 Me. 552, 90 A.
424, L.R.A.1915A, 817.
Railroad Commission
A body of commissioners, appointed in several
of the states, to regulate railway traffic within the
state, with power, generally, to regulate and fix
rates, see to the enforcement of police ordinances,
and sometimes assess the property of railroads for
taxation. Southern Pac. Co. v. Board of Railroad
Com'rs, C.C.Cal., 78 F. 236, 252.
Railroad Company
A company which is principally engaged in op-
erating a railroad. Crowley v. Polleys Lumber
Co., 92 Mont. 27, 9 P.2d 1068, 1070.
Railroad Division
A unit of management established for conven-
ience in operation. Day v. Louisville & N. R. Co.,
295 Ky. 679, 175 S.W.2d 347, 349.
Railroad Line
A regular line of railroad vehicles for public
use operating between distant points or between
different cities. Bruce Transfer Co. v. Johnston,
227 Iowa 50, 287 N.W. 278, 280.
Railroad Property
The property which is essential to a railroad
company to enable it to discharge its functions
and duties as a common carrier by rail. It in-
cludes the road bed, right of way, tracks, bridges,
stations, rolling stock, and such like property.
Northern Pac. It. Co. v. Walker, C.C.N.D., 47 F.
681.
Railroad Relief Funds
A term applied to funds raised by periodical
contributions of corporation employees, or by
them jointly with the corporation, for the purpose
of providing relief to the employees in case of
injury, and the payment of money to their fami-
lies in case of death, in the service.
RAILWAY. In law, this term is usually of ex-
actly equivalent import to "railroad" (q. v.).
State v. Brin, 30 Minn, 522, 16 N.W. 406; Milivale
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RAISING
Borough v. Evergreen Ry. Co., 131 Pa. 1, 18 A.
993, 7 L.R.A. 369.
Interurban Railways
A sort of hybrid, having in some respects the
characteristics of the ordinary railroad and in oth-
ers those of the street railroad. Within the limits
of the cities which they enter, they usually pass
along the streets, and perform the ordinary func-
tions of street railroads, stopping where de-
sired to let passengers on or off, and serving
the public need for local street travel. Out-
side the cities, on their way from one city or
town to another, they frequently travel upon a
roadway obtained from private persons, not upon
a public road, and stop, as in case of ordinary
railroads, only at stations established by them for
that purpose. They also often convey freight as
well as passengers. San Francisco and S. M.
Electric Ry. Co. v. Scott, 142 Cal. 222, 75 P. 575,
576, 583.
Railway Commissioners
A body of three commissioners appointed under
the English regulation of railways act, 1873, prin-
cipally to enforce the provisions of the railway
and canal traffic act, 1854, by compelling railway
and canal companies to give reasonable facilities
for traffic, to abstain from giving unreasonable
preference to any company or person, and to for-
ward through traffic at through rates. They also
have the supervision of working agreements be-
tween companies. Sweet.
Railway Depot
A station at which trains stop for transaction of
ordinary business of railroad company, the re-
ceiving and delivering of freight and passengers.
Brenner v. Amrine, 151 Kan. 788, 100 P.2d 688, 690.
Street Railway
One constructed and operated on or along the
streets of a city or town to carry persons from one
point to another in such city or town, or to and
from its suburbs. It is peculiarly to accommodate
people in cities and towns; its tracks are ordinari-
ly laid to conform to street grades, its cars run
at short intervals, stopping at street crossings
to receive and discharge passengers, and its busi-
ness is confined to the carriage of passengers
and not freight. Muskogee Electric Traction Co.
v. Doehring, 70 Okl. 21, 172 P. 793, 795, 2 A.L.R.
94. An enterprise created and operated to carry
on a fixed track passengers and freight, or passen-
gers or freight, for rates or tolls, without discrim-
ination as to those who demand transportation.
Bradley v. Degnon Contracting Co., 224 N.Y. 60,
120 N.E. 89, 91. The term "street railroad" is
used interchangeably with "street railway." Met-
ropolitan West Side Electric Ry. Co. v. City of
Chicago, 261 Ill. 624, 104 N.E. 165, 167. The term
is sometimes distinguished from "railway," mean-
ing one of those larger institutions employed in
general freight and passenger traffic from one
city, town, or place to another, and usually denom-
inated "commercial railways," while a "street
railway" is built upon streets and avenues for the
accommodation of street traffic. Anhalt v. Water-
loo, C. F. & N. Ry. Co., 166 Iowa 479, 147 N.W.
928, 931. See Railroad. "Street railway" may in-
clude both urban and interurban lines. City of
Milwaukee v. Railroad Commission of Wisconsin,
169 Wis. 559, 173 N.W. 329, 330. See, also, Interur-
ban Railways.
Trunk Railway
A commercial railway connecting towns, cities,
counties, or other points within the state or in
different states, which has the legal capacity, un-
der its charter or the general law, of constructing,
purchasing, and operating branch lines or feeders
connecting with its main stem or trunk; the main
or trunk line bearing the same relation to its
branches that the trunk of a tree bears to its
branches, or the main stream of a river to its trib-
utaries. Oregon, C. & E. Ry. Co. v. Blackmer,
154 Or. 388, 59 P.2d 694, 696.
RAIN—WATER. The water which naturally falls
from the clouds.
RAINY DAYS. Where a charter party (a cargo
of wheat) provided that rainy days should not be
counted as lay days, it excludes only rainy days
on which, with reference to the facilities of the
port in the way of covered docks, etc., the cargo
could not be safely landed. Kerr v. Schwaner,
101 C.C.A. 285, 177 F. 659.
RAISE. To create; to infer; to create or bring
to light by construction or interpretation. To
cause or procure to be produced, bred or propa-
gated. To bring together; to get together or ob-
tain for use or service; to gather; to collect; to
levy; as to raise money to raise an army. Town
of Amherst v. Erie County, 256 N.Y.S. 785, 143
Misc. 540; Miller Hatcheries v. Boyer, C.C.A.
Iowa, 131 F.2d 283, 287.
RAISE A PRESUMPTION. To give occasion or
ground for a presumption; to be of such a char-
acter, or to be attended with such circumstances,
as to justify an inference or presumption of law.
Thus, a person's silence, in some instances, will
"raise a presumption" of his consent to what is
done.
RAISE AN ISSUE. To bring pleadings to an is-
sue; to have the effect of producing an issue be-
tween the parties pleading in an action.
RAISE REVENUE. To levy a tax, as a means
of collecting revenue; to bring together, collect,
or levy revenue. The phrase does not imply an
increase of revenue. Perry County v. Selma, etc.,
R. Co., 58 Ala. 557.
RAISING A PROMISE. The act of the law in
extracting from the facts and circumstances of a
particular transaction a promise which was im-
plicit therein, and postulating it as a ground of
legal liability.
RAISING A USE. Creating, establishing, or call-
ing into existence a use. Thus, if a man con-
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RAISING
veyed land to another in fee, without any con-
sideration, equity would presume that he meant
it to be to the use of himself, and would, there-
fore, raise an implied use for his benefit. Brown.
RAISING AN ACTION, in Scotland, is the insti-
tution of an action or suit.
RAISING MONEY. Realizing money by subscrip-
tion, loan, or otherwise. New York & R. Cement
Co. v. Davis, 173 N.Y. 235, 66 N.E. 9; New London
Literary Inst. v. Prescott, 40 N.H. 333.
RAISING PORTIONS. When a landed estate is
settled on an eldest son, it is generally burdened
with the payment of specific sums of money in
favor of his brothers and sisters. A direction
to this effect is called a direction for "raising
portions for younger children;" and, for this pur-
pose, it is usual to demise or lease the estate to
trustees for a term of years, upon trust to raise
the required portions by a sale or mortgage of
the same. Mozley & Whitley.
RAN, Sax. In Saxon and old English law. Open
theft, or robbery.
RANCHO. Sp. A small collection of men or
their dwellings; a hamlet. As used, however, in.
Mexico and in the Spanish law formerly prevail-
ing in California, the term signifies a ranch or
large tract of land suitable for grazing purposes
where horses or cattle are raised, and is distin-
guished from hacienda, a cultivated farm or plan-
tation.
RANCID. Having a rank smell or taste from
chemical change or decomposition. Spry v. Kiser,
179 N.C. 417, 102 S.E. 708, 709.
RAND, or RAND LIFT. In the nomenclature of
the • art of building heels, the cup-shaped piece
attached to the top of the heel, fitting it to the
heel seat of the shoe. Brockton Heel Co. v. In-
ternational Shoe Co., D.C.N.H., 19 F.2d 145.
RANGE, v. To have or extend in certain direc-
tion, to correspond in direction or line, or to trend
or run. Lilly v. Marcum, 214 Ky. 514, 283 S.W.
1059, 1060.
RANGE, n. In the government survey of the
United States, one of the divisions of a state, a
row or tier of townships as they appear on the
map.
A tract or district of land within which domes-
tic animals in large numbers range for subsist-
ence; an extensive grazing ground. The term is
used on the great plains of the United States to
designate a tract commonly of many square miles
occupied by one or different proprietors and dis-
tinctively called a cattle range, stock range, or
sheep range. The animals on a range are usually
left to take care of themselves during the whole
year without shelter, except when periodically
gathered in a round-up for counting and selection,
and for branding, when the herds of several pro-
prietors run together. State v. Omaechevviaria,
27 Idaho, 797, 152 P. 280, 282; Missoula Trust &
Savings Bank v. Northern Pac. Ry. Co., 76 Mont.
201, 245 P. 949, 951.
RANGER. In forest law. A sworn officer of the
forest, whose office chiefly consists in three points:
To walk daily through his charge to see, hear,
and inquire as well of trespasses as trespassers
in his bailiwick; to drive the beasts of the forest,
both of venery and chace, out of the deafforested
into the forested lands; and to present all tres-
passers of the forest at the next courts holden
for the forest. Cowell.
RANK, n. Grade of official standing. The order
or place in which certain officers are placed in the
army and navy, in relation to others. Wood v.
U. S., 15 Ct.C1. 158.
Rank is often used to express something different from
office. It then becomes a designation or title of honor, dig-
nity, or distinction conferred upon an officer in order to fix
his relative position in reference to other officers in mat-
ters of privilege, precedence, and sometimes of command,
or by which to determine his pay and emoluments. This is
the case with the staff officers of the army. Wood v. U. S.,
15 Ct.C1. 159.
RANK, adj. In English law. Excessive; too
large in amount; as a rank modus. 2 Bl.Comm.
30.
RANKING OF CREDITORS. The Scotch term
for the arrangement of the property of a debtor
according to the claims of the creditors, in con-
sequence of the nature of their respective securi-
ties. Bell. The corresponding process in England
is the marshalling of securities in a suit or action
for redemption or foreclosure. Paterson.
RANSOM. The money, price, or consideration
paid or demanded for redemption of a captured
person or persons, a payment that releases from
captivity. Acts 1933, c. 16063. Keith v. State, 120
Fla. 847, 163 So. 136.
In international law. The redemption of cap-
tured property from the hands of an enemy, par-
ticularly of property captured at sea. 1 Kent,
Comm. 104. A sum paid or agreed to be paid for
the redemption of captured property. 1 Kent,
Comm. 105.
Strictly speaking, not a recapture of the captured prop-
erty. It is rather a purchase of the right of the captors at
the time, be it what it may; or, more properly, it is a
relinquishment of all the interest and benefit which the
captors might acquire or consummate in the property, by
a regular adjudication of a prize tribunal, whether it be an
interest in 'rem, a lien, or a mere title to expenses. In this
respect, there seems to be no difference between the case
of a ransom of an enemy or a neutral. Maisonnaire v.
Keating, 2 Gall. 325, Fed.Cas.No.8,978.
In old English law. A sum of money paid for
the pardoning of some great offense. The dis-
tinction between ransom and amerciament is said
to be that ransom was the redemption of a cor-
poral punishment, while amerciament was a fine
or penalty directly imposed, and not in lieu of an-
other punishment. Cowell; 4 Bl.Comm. 380; U.
S. v. Griffin, 6 D.C. 57. A sum of money paid for
the redemption of a person from captivity or im-
prisonment. Thus one of the feudal "aids" was
to ransom the lord's person if taken prisoner. 2
Bl.Comm. 63.
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RANSOM BILL. A contract by which a captured
vessel, in consideration of her release and of safe-
conduct for a stipulated course and time, agrees
to pay a certain sum as ransom.
RAPE. In criminal law. The unlawful carnal
knowledge of a woman by a man forcibly and
against her will. Gore v. State, 119 Ga. 418, 46
S.E. 671, 100 Am.St.Rep. 182; People v. Cieslak,
319 Ill. 221, 149 N.E. 815, 816. State ex rel. Moffitt
v. Zupnik, Ohio App., 50 N.E.2d 427, 429. That is,
without her consent and against her utmost re-
sistance. State v. Cottengim, Mo., 12 S.W.2d 53,
57.
Hence, if she consent to the sexual intercourse,
although that consent may be reluctantly given,
and although there may be some force used to
obtain her consent, the offense cannot be "rape."
Opposition to the sexual act by mere words is
not sufficient. Welch v. State, 58 Ga.App. 447,
198 S.E. 810, 811. While slightest penetration is
sufficient, it must be shown that private parts of
male entered at least to some extent in those of
female, and emission without penetration is in-
sufficient. Kitchen v. State, 61 Okl.Cr. 435, 69
P.2d 411, 415.
Under modern statutes which often materially
change the common-law definition and create an
offense commonly known as "statutory rape,"
where the offense consists in having sexual inter-
course with a female under statutory age, the
offense may be either with or without the female's
consent. State v. Ellison, 19 N.M. 428, 144 P. 10,
13.
In English law. An intermediate division be-
tween a shire and a hundred; or a division of a
county, containing several hundreds. 1 Bl.Comm.
116; Cowell. Apparently peculiar to the county
of Sussex. See, however, Lath.
RAPE OF THE FOREST. In old English law.
Trespass committed in a forest by violence. Cow-
ell.
RAPE-REEVE, In English law. The chief of-
ficer of a rape, (q. v.) . 1 Bl.Comm. 116.
RAPINE. The felonious taking of another man's
personal property, openly and by violence, against
his will.
In the civil law, rapina is defined as the forcible
and violent taking of another man's movable
property with the criminal intent to appropriate
it to the robber's own use. A prmtorian action lay
for this offense, in which quadruple damages were
recoverable. Gaius, lib. 3, § 209; Inst. 4, 2; Mac-
keld. Rom. Law, § 481; Heinecc. Elem. § 1071.
RAPPORT A SUCCESSION. In French law and
in Louisiana. A proceeding similar to hotchpot;
the restoration to the succession of such property
as the heir may have received by way of advance-
ment from the decedent, in order that an even
division may be made among all the co-heirs.
Civ.Code La. art. 1227.
RAPTOR. In old English law. A ravisher. Fle-
ta, lib. 2, c. 52, § 12,
RAPTU H1EREDIS. In old English law. A writ
for taking away an heir holding in socage, of
which there were two sorts: One when the heir
was married; the other when he was not. Reg.
Orig. 163.
RAPUIT. Lat. In old English law. Ravished.
A technical word in old indictments. 2 East, 30.
RASURE. The act of scraping, scratching, or
shaving the surface of a written instrument, for
the purpose of removing certain letters or words
from it. It is to be distinguished from "oblitera-
tion," as the latter word properly denotes the
crossing out of a word or letter b T, drawing a line
through it with ink. But the two expressions
are often used interchangeably. Penny v. Cor-
withe, 18 Johns., N.Y. 499.
RASUS. In old English law. A rase; a measure
of onions, containing twenty Hones, and each flon-
is twenty-five heads. Fleta, lib. 2, c. 12, § 12.
RATABLE. Proportional; proportionately rated
upon a constant ratio adjusted to due relation.
Glucksman v. Board of Education of City of New
York, Mun.Ct., 164 N.Y.S. 351, 359. According to
a measure which fixes proportions. It has no
meaning unless referable to some rule or stan-
dard, and never means equality or equal division
but implies unequal division as between different
persons. Chenoweth v. Nordan & Morris, Tex.
Civ.App., 171 S.W.2d 386, 387.
RATABLE ESTATE OR PROPERTY. Property
in its quality and nature capable of being rated,
e. appraised, assessed. 10 B. & S. 323; Coventry
Co. v. Assessors, 16 R.I. 240, 14 A. 877; Burdick
v. Pendleton, 46 R.I. 125, 125 A. 278, 279. Tax-
able estate; the real and personal property which
the legislature designates as "taxable." Marsh-
field v. Middlesex, 55 Vt. 546.
RATAM REM HABERE. Lat. In the civil law.
To hold a thing ratified; to ratify or confirm it.
Dig. 46, 8, 12, 1.
RATE. Proportional or relative value, measure,
or degree; the proportion or standard by which
quantity or value is adjusted. Shropshire v. Com-
merce Farm Credit Co., Tex.Civ.App., 266 S.W.
612, 614.
Thus, the rate of interest is the proportion or ratio be-
tween the principal and interest. So the buildings in a
town are rated for insurance purposes; i. e., classified and
individually estimated with reference to their insurable
qualities. In this sense also we speak of articles as being
in "first-rate" or "second-rate" condition.
A fixed relation of quantity, amount or degree; also, a
charge, valuation, payment or price fixed according to ra-
tio, scale or standard; comparative price or amount of
demands. E. C. Miller Cedar Lumber Co. v. United States,
Cust. & Pat.App., 86 F.2d 429, 434. Webster.
Thus, we speak of the rate at which public lands are
sold, rates of fare upon railroads, etc. Georgia R. & B.
Co. v. Maddox, 116 Ga. 64, 42 S.E. 315; Naylor v. Board of
Education of Fulton County, 216 Ky. 766, 288 S.W. 690, 692.
In connection with public utilities, a charge to
the public for a service open to all and upon the
same terms. State v. Spokane & I. E. R. Co., 89
Wash. 599, 154 P. 1110, 1113, L.R.A.1918C, 675;
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City of Detroit v. Public Utilities Commission, 288
Mich. 267, 286 N.W. 368, 373.
As used in the interstate commerce law, it
means the net cost to the shipper of the trans-
portation of his property; that is to say, the net
amount the carrier receives from the shipper and
retains. Elliott v. Empire Natural Gas Co., 123
Kan. 558, 256 P. 114, 117. Great Northern Ry. Co.
v. Armour & Co., D.C.I11., 26 F.Supp. 964, 967.
The term is also used as the synonym of "tax;"
that is, a sum assessed by governmental authority
upon persons or property, by proportional valua-
tion, for public purposes. It is chiefly employed
in this sense in England, but is there usually con-
fined to taxes of a local nature, or those raised by
the parish; such as the poor-rate, borough rate,
etc.
It sometimes occurs in a connection which gives
it a meaning synonymous with "assessment;" that
is, the apportionment of a tax among the whole
number of persons who are responsible for it, by
estimating the value of the taxable property of
each, and making a proportional distribution of
the whole amount. Thus we speak of "rating"
persons and property.
In marine insurance, the term refers to the
classification or scaling of vessels based on their
relative state and condition in regard to insur-
able qualities; thus, a vessel in the best possible
condition and offering the best risk from the un-
derwriter's standpoint, is "rated" as "A 1." Insur-
ance Companies v. Wright, 1 Wall. 472, 17 L.Ed.
505.
Class Rate
A single rate applying to the transportation of
a number of articles of the same general charac-
ter. Norfolk Southern R. Co. v. Freeman Supply
Corporation, 145 Va. 207, 133 S.E. 817, 818.
Commodity Rate
A rate which applies to the transportation of a
specific commodity alone. Norfolk Southern R.
Co. v. Freeman Supply Corporation, 145 Va. 207,
133 S.E. 817, 818.
Joint Rate
As applied to railroads, a rate prescribed to be
charged for the transportation of goods or pas-
sengers over the connecting lines of two or more
railroads, and to be divided among them for the
service rendered by each respectively. Southern.
Bell Telephone & Telegraph Co. v. Railroad Com-
mission of Georgia, D.C.Ga., 274 F. 438, 441.
Rate of Exchange
In commercial law. The actual price at which
a bill, drawn in one country upon another coun-
try, can be bought or obtained in the former coun-
try at any given time. Story, Bills, § 31.
Rate Tariff
Statement by carrier to possible shippers that
it will furnish certain services under certain con-
ditions for certain price. Union Wire Rope Cor-
poration v. Atchison, T. & S. F. Ry. Co., C.C.A.Mo.,
66 F.2d 965, 966. •
Rate-tithe
In English law. When any sheep, or other cat-
tle, are kept in a parish for less time than a year,
the owner must pay tithe for them pro rata, ac-
cording to the custom of the place. Fitzh.Nat.
Brev. 51.
RATIFICATION. In a broad sense, the confirma-
tion of a previous act done either by the party
himself or by another; confirmation of a voidable
act. Story, Ag. §§ 250, 251; 2 Kent, Comm. 237;
Norton v. Shelby County, 6 S.Ct. 1121, 118 U.S.
425, 30 L.Ed. 178; Gallup v. Fox, 30 A. 756, 64
Conn. 491. The affirmance by a person of a prior
act which did not bind him, but which was done
or professedly done on his account, whereby the
act, as to some or all persons, is given effect as if
originally authorized by him. Goldfarb v. Reich-
er, 112 N.J.L. 413, 171 A. 149, 151; The adoption
by one, as binding upon himself, of an act done
in such relations that he may claim it as done for
his benefit, although done under such circum-
stances as would not bind him except for his sub-
sequent assent. Samstag & Hilder Bros. v. Ot-
tenheimer & Weil, 90 Conn. 475, 97 A. 865, 867;
It is equivalent to a previous authorization and re-
lates back to time when act ratified was done, ex-
cept where intervening rights of third persons
are concerned. Petray v. First Nat. Bank, 92
Cal.App. 86, 267 P. 711, 713.
In the law of principal and agent, the adoption
and confirmation by one person with knowledge of
all material facts, of an act or contract performed
or entered into in his behalf by another who at
the time assumed without authority to act as his
agent. Maryland Casualty Co. v. First State Bank
of Dewar, 101 Okl. 71, 223 P. 701, 705; Gould v.
Maine Farmers' Mut. Fire Ins. Co., 114 Me. 416,
96 A. 732, 734, L.R.A.1917A, 604.
Ratification of transaction involves same elements Its
making of new contract, and understanding of material
facts necessary to an intelligent assent is essential to "rati-
fication." State ex rel. Robertson v. Johnson County Bank,
18 Tenn.App. 232, 74 S.W.2d 1084, 1087.
Essence of "ratification" by principal of act of agent is
manifestation of mental determination by principal to af-
firm the act, and this may be manifested by written word
or by spoken word or by conduct, or may be inferred from
known circumstances and principal's acts in relation there-.
to. Miller v. Chatsworth Sa y . Bank, 203 Iowa, 411, 212
N.W. 722, 724.
To constitute ratification of voidable contract the act
relied on must be performed with full knowledge of its con-
sequences and with an express intention of ratifying what
is known to be voidable. Coe v. Moon, 260 Ill. 76, 102 N.E.
1074, 1076; Fletcher v. A. W. Koch Co., Tex.Civ.App., 189
S.W. 501, 503.
Express ratifications are those made in express and di-
rect terms of assent. Implied ratifications are such as the
law presumes from the acts of the principal.
Estoppel and ratification distinguished. See Es-
toppel.
RATIFY. To approve and sanction; to make
valid; to confirm; to give sanction to. Short v.
Metz Co., 165 Ky. 319, 176 S.W. 1144, 1149; Farm-
ers' Co-op. Exch. Co. of Good Thunder v. Fidel-
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RAVISIIMENT
ity & Deposit Co. of Maryland, 149 Minn. 171, 182
N.W. 1008, 1009.
Though sometimes used synonymously, from a strictly
lexical standpoint, the word "adopt" should be used to
apply to void transactions, while the word "ratify" should
be limited to the final approval of a voidable transaction
by one who theretofore had the optional right to relieve
himself from its obligations. Cosden Oil & Gas Co. v. Hen-
drickson, 96 Okl. 206, 221 P. 86, 89.
RATIHABITIO. Lat. Confirmation, agreement,
consent, approbation of a contract. Saltmarsh v.
Candia, 51 N.H. 76.
RATIHABITIO MANDATO ZEQUIPARATUR.
Ratification is equivalent to express command.
Dig. 46, 3, 12, 4; Broom, Max. 867; Palmer v.
Yates, 3 Sandf. (N.Y.) 151.
RATIO. Rate; proportion; degree. Reason, or
understanding. Also a cause, or giving judgment
therein.
RATIO DECIDENDI. The ground of decision.
The point in a case which determines the judg-
ment.
RATIO EST FORMALIS CAUSA CONSUETUD-
INIS. Reason is the formal cause of custom.
RATIO EST LEGIS ANIMA; MUTATA LEGIS
RATIONE MUTATUR ET LEX. 7 Coke, 7. Rea-
son is the soul of law; the reason of law being
changed the law is also changed.
RATIO EST RADIUS DIVINI LUMINIS. Co.
Litt. 232. Reason is a ray of the divine light.
RATIO ET AUCTORITAS, DUO CLARISSIMA
MUNDI LUMINA. 4 Inst. 320. Reason and au-
thority, the two brightest lights of the world.
RATIO IN JURE ZEQUITAS INTEGRA. Rea-
son in law is perfect equity.
RATIO LEGIS. The reason or occasion of a law;
the occasion of making a law. Bl.Law Tracts, 3.
RATIO LEGIS EST ANIMA LEGIS. Jenk.Cent.
45. The reason of law is the soul of law.
RATIO NON CLAUDITUR LOCO. Reason is
not confined to any place.
RATIO POTEST ALLEGARI DEFICIENTE
LEGE; SED RATIO VERA ET LEGALIS, ET
NON APPARENS. Co. Litt. 191. Reason may be
alleged when law is defective; but it must be true
and legal reason, and not merely apparent.
RATIONABILE ESTOVERIUM. A Latin phrase
equivalent to "alimony."
RATIONABILI PARTE BONORUM. A writ that
lay for the wife against the executors of her hus-
band, to have the third part of his goods after his
just debts and funeral expenses had been paid.
Fitzh.Nat.Brev. 122.
RATIONAL DOUBT. A doubt based upon reason-
able inferences such as are ordinarily drawn by
ordinary men in the light of their experiences in
ordinary life. Hicks v. State, 66 Ga.App. 577, 18
S.E.2d 637, 640, .66 Ga.App. 577.
RATIONALIBUS DIVISIS. An abolished writ
which lay where two lords, in divers towns, had
seigniories adjoining, for him who found his waste
by little and little to have been encroached upon,
against the other, who had encroached, thereby to
rectify their bounds. Cowell.
RATIONE IMPOTENTIZE. Lat. On account of
inability. A ground of qualified property in some
animals ferce naturce; as in the young ones,
while they are unable to fly or run. 2 Bl.Comm. 3,
4.
RATIONE MATERLE. Lat. By reason of the
matter involved; in consequence of, or from the
nature of, the subject-matter.
RATIONE PERSONJE. Lat. By reason of the
person concerned; from the character of the per-
son.
RATIONE PRIVILEGII. Lat. This term de-
scribes a species of property in wild animals,
which consists in the right which, by a peculiar
franchise anciently granted by the English crown,
by virtue of its prerogative, one man may have of
killing and taking such animals on the land of
another. 106 E. C. L. 870.
RATIONE SOLI. Lat. On account of the soil;
with reference to the soil. Said to be the ground
of ownership in bees. 2 Bl. Comm. 393.
RATIONE TENURJE. L. Lat. By reason of ten-
ure; as a consequence of tenure. 3 Bl. Comm.
230.
RATIONES. In old law. The pleadings in a suit.
Rationes exercere, or ad rationes stare, to plead.
RATTENING. The offense on the part of mem-
bers of a trade union, of causing the tools, clothes,
or other property of a workman to be taken away
or hidden, in order to compel him to join the union
or cease working. It is, in England, an offense
punishable by fine or imprisonment. 38 & 39 Vict.
c. 86, § 7. Sweet.
RAVINE. A long, deep, and narrow hollow, worn
by a stream or torrent of water; a long, deep,
and narrow hollow or pass through the mountains.
Long v. Boone Co., 36 Iowa 60.
RAVISH. To have carnal knowledge of a woman
by force and against her will; to rape. State v.
Heyer, 89 N.J.L. 187, 98 A. 413, 414, Ann.Cas.1918
D, 284.
RAVISHED. In criminal practice. A material
word in indictments for rape. Whart. Crim.Law,
§ 401.
RAVISHER. One who has carnal knowledge of a
woman by force and against her consent. Hart v.
State, 144 Tex.Cr.R. 161, 161 S.W.2d 791, 793.
RAVISHMENT. In criminal law. An unlawful
taking of a woman, or of an heir in ward. Rape,
which see.
RAVISHMENT DE GARD. L. Fr. An abolished
writ which lay for a guardian by knight's service
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RAVISHMENT
or in socage, against a person who took from him
the body of his ward. Fitzh. Nat. Brev, 140; 12
Car. II. c. 3.
RAVISHMENT OF WARD. In English law. The
marriage of an infant ward without the consent
of the guardian.
RAW. Not cooked, or refined. Fleming v. Farm-
ers Peanut Co., C.C.A.Ga., 128 F.2d 404, 407.
RAW FRUITS. Fruits which are in their natural
state, or so nearly in that condition that they re-
tain substantially unimpaired qualities and char-
acteristics of the fruit as it came from the tree.
U. S. v. Meyer Co., 12 Ct.Cust.App. 124, 125.
RAW MATERIAL. As used in definitions of
"manufacture," denotes merely material from
which final product is made, not necessarily ma-
terial in its natural state. State v. Hennessy Co.,
71 Mont. 301, 230 P. 64, 65.
When raw material is converted into a finished product
complete and ready for the final use intended, it ceases to
be "raw material". Stearns Coal & Lumber Co. v. Thom-
as, 295 Ky. 808, 175 S.W.2d 505, 507.
RAZE. To erase. 3 How. State Tr. 156.
RAZON, In Spanish law. Cause, (causa.) Las
Partidas, pt. 4, tit. 4, 1. 2.
RE. Lat. In the matter of; in the case of. A.
term of frequent use in designating judicial pro-
ceedings, in which there is only one party. Thus,
"Re Vivian" signifies "In the matter of Vivian,"
or in "Vivian's Case."
RE. FA, LO. The abbreviation of "recordari fa-
cias loquelam," (q. v.).
RE, VERBIS, SCRIPTO, CONSENSU, TRADI-
TIONE, JUNCTURA VESTES SUMERE PACTA
SOLENT. Compacts usually take their clothing
from the thing itself, from words, from writing,
from consent, from delivery. Plowd. 161.
READERS. In the middle temple, those persons
were so called who were appointed to deliver lec-
tures or "readings" at certain periods during term.
The clerks in holy orders who read prayers and
assist in the performance of divine service in the
chapels of the several inns of court are also so
termed. Brown.
READING. The act of pronouncing aloud, or of
acquiring by actual inspection, a knowledge of
the contents of a writing or of a printed docu-
ment.
The act or art of perusing written or printed
matter and considering its contents or meaning.
U. S. v. Tod, C.C.A.N.Y., 294 F. 820, 822.
READING–IN, In English ecclesiastical law.
The title of a person admitted to a rectory or
other benefice will be divested unless within two
months after actual possession he publicly read
in the church of the benefice, upon some Lord's
day, and at the appointed times, the morning and
evening service, according to the book of common
prayer; and afterwards, publicly before the con-
gregation, declare his assent to such book; and
also publicly read the thirty-nine articles in the
same church, in the time of common prayer, with
declaration of his assent thereto; and moreover,
within three months after his admission, read
upon some Lord's day in the same church, in the
presence of the congregation, in the time of divine
service, a declaration by him subscribed before
the ordinary, of conformity to the Liturgy, to-
gether with the certificate of the ordinary of its
having been so subscribed. 2 Steph. Comm. (7th
Ed.) 687; Wharton.
READY. Prepared for what one is about to do
or experience; equipped or supplied with what is
needed for. some act or event; prepared for im-
mediate movement or action. Terrell v. Harris, 42
Ga.App. 760, 157 S.E. 387, 391. Fitted, arranged,
or placed for immediate use; causing no delay
for lack of being prepared or furnished. Woodley
Petroleum Co. v. Arkansas Louisiana Pipeline Co.,
179 La. 136, 153 So. 539.
READY AND WILLING. Implies capacity to act
as well as disposition. 11 L. J. Ex. 322; 5 Bing.
N. C. 399; Tout Temps Prist.
REAFFORESTED. Where a deafforested forest
is again made a forest. 20 Car. II. c. 3.
REAL,
Civil Law
Relating to a thing, (whether movable or im-
movable,) as disinguished from a person.
Common Law
Relating to land, as distinguished from person-
al property. This term is applied to lands, tene-
ments, and hereditaments.
As to real "Action," "Assets," "Chattels," "Com-
position," "Contract," "Covenant," "Estate," "Is-
sue," "Obligation," "Party," "Poinding," "Priv-
ilege,"  "Property," "Representative," "Right,"
"Security," "Servitude," "Statute," "Warrandice,"
and "Wrong," see those titles.
REAL BURDEN. In Scotch law. Where a right
to lands is expressly granted under the burden of
a specific sum, which is declared a burden on the
lands themselves, or where the right is declared
null if the sum be not paid, and where the amount
of the sum, and the name of the creditor in it, can
be discovered from the records, the burden is
said to be real. Bell.
REAL CHYMIN. L. Fr. In old English law.
The royal way; the king's highway, (regia via.)
REAL EVIDENCE. Evidence furnished by things
themselves, on view or inspection, as distinguish-
ed from a description of them by the mouth of a
witness; e. g., the physical appearance of a per-
son when exhibited to the jury, marks, scars,
wounds, finger-prints, etc., also the weapons or
implements used in the commission of a crime,
and other inanimate objects, and evidence of the
physical appearance of a place (the scene of an
accident or of the commission of a crime or of
property to be taken under condemnation pro-
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REASONABLE
ceedings) as obtained by a jury when they are
taken to view it. See Chamb. Best, Ev. 16; Rig-
gie v. Grand Trunk Ry. Co., 93 Vt. 282, 107 A. 126,
127.
REAL INJURY. In the civil law. An injury
arising from an unlawful act, as distinguished
from a verbal injury, which was done by words.
Hallifax, Civil Law, b. 2, c. 15, nn. 3, 4.
REAL LAW. At common law. The body of laws
relating to real property. 'This use of the term
is popular rather than technical.
In the civil law. A law which relates to speci-
fic property, whether movable or immovable.
If real law in any given case relates to immovable prop-
erty, it is limited in its operation to the territory within
which the property is situate, real estate being both by
common and continental laws, subject exclusively to the
laws of the government within whose territory it is situ-
ate. Story, Confl.L. 426.
REAL THINGS (or THINGS REAL). In com-
mon law. Such things as are permanent, fixed,
and immovable, which cannot be carried out of
their place; as lands and tenements. 2 Bl.Comm.
15. Things substantial and immovable, and the
rights and profits annexed to or issuing out of
them. 1 Steph.Comm. 156.
REALITY. In foreign law. That quality of laws
which concerns property or things, (quce ad rem
spectant.) Story, Confl. Laws, § 16.
REALIZE. To convert any kind of property in-
to money; but especially to receive the returns
from an investment. Weldon v. Newsom, 67
Colo. 502, 186 P. 516, 517.
REALM. A kingdom; a country. 1 Taunt. 270;
4 Camp. 289.
REALTY. A brief term for real property; also
for anything which partakes of the nature of real
property.
Quasi realty. Things which are fixed in con-
templation of law to realty, but movable in them-
selves, as heir-looms, (or limbs of the inherit-
ance,) title-deeds, court rolls, etc. Wharton.
REAPPRAISER. A person who, in certain cases,
is appointed to make a revaluation or second ap-
praisement of imported goods at the custom-
house.
REAPTOWEL. See Riptowell.
REAR. The word has been held not necessarily
to mean directly behind. Hinds v. Hinsdale, 80
N.H. 346, 116 A. 635, 636.
REARGUMENT. Its purpose is to demonstrate
to court that there is some decision or principle
of law which would have a controlling effect and
which has been overlooked, or that there has been
a misapprehension of facts. In re Hooker's Es-
tate, 18 N.Y.S.2d 107, 110, 173 Misc. 515.
REASON. A faculty of the mind by which it
distinguishes truth from falsehood, good from
evil, and which enables the possessor to deduce
inferences from facts or from propositions. Web-
ster. Also an inducement, motive, or ground for
action, as in the phrase "reasons for an appeal."
Miller v. Miller, 8 Johns. (N.Y.) 77.
REASONABLE. Just; proper. Ordinary or us-
ual. Fit and appropriate to the end in view.
Parkes v. Bartlett, 236 Mich. 460, 210 N.W. 492,
494, 47 A.L.R. 1128; Having the faculty of rea-
son; rational; governed by reason; under the
influence of reason; agreeable to reason. Claus-
sen v. State, 21 Wyo. 505, 133 P. 1055, 1056. Think-
ing, speaking, or acting according to the dictates
of reason; not immoderate or excessive, being
synonymous with rational; honest; equitable;
fair; suitable; moderate; tolerable. Cass v.
State, 124 Tex.Cr.R. 208, 61 S.W.2d 500.
As applied to rates of public service companies,
a reasonable rate is one not so low as to be de-
structive of the company's property or so high,
either intrinsically or because discriminatory, as
to be an unjust exaction from the public. Turner
v. Connecticut Co., 91 Conn. 692, 101 A. 88, 90.
As to reasonable "Aids," "Care," "Diligence,"
"Doubt," "Fair and Reasonable Compensation,"
"Fair and Reasonable Contract," "Fair and Rea-
sonable Market Value," "Fair and Reasonable
Tolls," "Fair and Reasonable Value," "Notice,"
"Skill," and "Time," see those titles.
REASONABLE ACT. Such as may fairly, justly,
and reasonably be required of a party.
REASONABLE AND PROBABLE CAUSE. Such
grounds as justify any one in suspecting another
of a crime, and giving him in custody thereon.
It is a suspicion founded upon circumstances suf-
ficiently strong to warrant reasonable man in be-
lief that charge is true. Murphy v. Murray, 74
Cal.App. 726, 241 P. 938, 940.
REASONABLE CAUSE TO BELIEVE A DEBT-
OR INSOLVENT. Knowledge of facts of a char-
acter calculated to induce a belief in the mind of
an ordinarily intelligent and prudent business man.
Putnam v. United States Trust Co., 223 Mass. 199,
111 N.E. 969, 972.
REASONABLE CERTAINTY, RULE OF. Per-
mits recovery of damages only for such future
pain and suffering as is reasonably certain to re-
sult from the injury received. Prettyman v. Top-
kis, 3 A.2d 708, 710, 9 W.W.Harr. (Del.) 568. To
authorize recovery under such rule for perman-
ent injury, permanency of injury must be shown
with reasonable certainty, which is not mere con-
jecture or likelihood or even a probability of such
injury. State ex rel. Kansas City Public Service
Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428, 430.
REASONABLE CREATURE. Under the com-
mon-law rule that murder is taking the life of a
"reasonable creature" under the king's peace,
with malice aforethought, the phrase means a hu-
man being, and has no reference to his mental
condition, as it includes a lunatic, an idiot, and
even an unborn child. State v. Jones, Walk.
(Miss.) 85.
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REASONABLE
REASONABLE PART. In old English law. That
share of a man's goods which. the law gave to
his wife and children after his decease. 2 Bl.
Comm. 492.
REASSURANCE. This is where an insurer pro-
cures the whole or a part of the sum which he
has insured (i. e., contracted to pay in case of loss,
death, etc.) to be insured again to him by another
person. Sweet.
REATTACHMENT. A second attachment of him
who was formerly attached, and dismissed the
court without day, by the not coming of the jus-
tices, or some such casualty. Reg. Orig. 35.
REBATE. Discount; reducing the interest of
money in consideration of prompt payment. A
deduction from a stipulated premium on a policy
of insurance, in pursuance of an antecedent con-
tract. A deduction or drawback from a stipulat-
ed payment, charge, or rate, (as, a rate for the
transportation of freight by a railroad,) not taken
out in advance of payment, but handed back to
the payer after he has paid the full stipulated
sum. U. S. v. Lehigh Valley R. Co., D.C.N.Y., 222
F. 685; New York Cent. & H. R. R. Co. v. General
Electric Co., 219 N.Y. 227, 114 N.E. 115, 117, 1 A.
L.R. 1417.
REBEL. A citizen or subject who unjustly and
unlawfully takes up arms against the constituted
authorities of the nation, to deprive them of the
supreme power, either by resisting their lawful
and constitutional orders in some particular mat-
ter or to impose on them conditions. Vattel,
Droit des Gens, liv. 3, § 328. In another sense, it
signifies a refusal to obey a superior or the com-
mands of a court.
REBELLION. Deliberate, organized resistance,
by force and arms, to the laws or operations of
the government, committed by a subject. Crash-
ley v. Press Pub. Co., 74 App.Div. 118, 77 N.Y.S.
711.
In old English law, also a contempt of a court
manifested by disobedience to its process, particu-
larly of the court of chancery. If a defendant re-
fused to appear, after attachment and proclama-
tion, a "commission of rebellion" issued against
him. 3 Bl.Comm. 444.
REBELLION, COMMISSION OF. In equity prac-
tice. A process of contempt issued on the non-
appearance of a defendant.
REBELLIOUS ASSEMBLY. In English law. A
gathering of twelve persons or more, intending,
going about, or practicing unlawfully and of their
own authority to change any laws of the realm;
or to destroy the inclosure of any park or ground
inclosed, banks of fish-ponds, pools, conduits, etc.,
to the intent the same shall remain void; or
that they shall have way in any of the said
grounds; or to destroy the deer in any park, fish
in ponds, coneys in any warren, dovehouses, etc.;
or to burn sacks of corn; or to abate rents or
prices of victuals, etc., Cowell.
REBOUTER. To repel or bar. The action of the
heir by the warranty of his ancestor is called
"to rebut or repel." 2 Co. Litt. 247.
REBUS SIC STANTIBUS. Lat. At this point of
affairs; in these circumstances. A name given to
a tacit condition, said to attach to all treaties,
that they shall cease to be obligatory so soon as
the state of facts and conditions upon which they
were founded has substantially changed. Taylor,
Int. L. § 394; 1 Oppenheim, Int. L. 550; Grotius,
ch. XVI, § XXV.
The change of government from a monarchy
to a republic was treated as not terminating
treaties, nor a successful revolution; nor an al-
liance of one of the treaty powers with a third
power. As the result, however, of the changes in
the state of Europe effected by the wars of Na-
poleon, all the treaties of the United States with
European powers were considered as terminated,
excepting only one with Spain of 1795. 5 Moore,
Dig. Int. L. 335, 337, 338.
REBUT. In pleading and evidence. To defeat or
take away the effect of something. Sweet.
When a plaintiff in an action produces evidence which
raises a presumption of the defendant's liability, and the
defendant adduces evidence which shows that the presump-
tion is ill-founded, he is said to "rebut it." Sweet.
In the old law of real property, to repel or bar
a claim. Co. Litt. 365a; Termes de la Ley.
Thus, when a person was sued for land which had been
warranted to him by the plaintiff or his ancestor, and he
pleaded the warranty as a defense to the action, this was
called a "rebutter." Co.Litt. 365a; Termes de la Ley.
REBUT AN EQUITY. To defeat an apparent
equitable right or claim, by the introduction of
evidence showing that, in the particular circum-
stances, there is no ground for such equity to at-
tach, or that it is overridden by a superior or
countervailing equity. 2 Whart. Ev. § 973.
REBUTTABLE PRESUMPTION. In the law of
evidence. A presumption which may be rebutted
by evidence. Otherwise called a "disputable" pre-
sumption. A species of legal presumption which
holds good until disproved. Best, Pres. § 25; 1
Greenl. Ev. § 33; Beck v. Kansas City Public
Service Co., Mo.App., 48 S.W.2d 213, 215. It shifts
burden of proof. Heiner v. Donnan, 52 S.Ct. 358,
362, 285 U.S. 312, 76 L.Ed. 772. And which stand-
ing alone will support a finding against contra-
dictory evidence. Lieber v. Rigby, 34 Cal.App.2d
582, 94 P.2d 49, 50.
REBUTTAL. The introduction of rebutting evi-
dence; the showing that statement of witnesses
as to what occurred is not true; the stage of a
trial at which such evidence may be introduced;
also the rebutting evidence itself. Lux v. Hag-
gin, 69 Cal. 255, 10 P. 674. State v. Monroe, 205
La. 285, 17 So.2d 331, 332.
REBUTTER. In pleading. A defendant's answer
of fact to a plaintiff's surrejoinder; the third
pleading in the series on the part of the defend-
ant. Steph. Pl. 59; 3 Bl.Comm. 310.
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RECEIVER
REBUTTING EVIDENCE. Evidence given to ex-
plain, repel, counteract, or disprove facts given
in evidence by the adverse party. State v. Mar-
tinez, 43 Idaho 180, 250 P. 239, 244; State v. Four-
chy, 25 So. 109, 51 La.Ann. 228.
Also evidence given in opposition to a presumption of
fact or a prima facie case; in this sense, it may be not
only counteracting evidence, but evidence sufficient to
counteract, that is, conclusive. Fain v. Cornett, 25 Ga. 186.
RECALL. A method of removal of official in
which power of removal is either granted to or
reserved by the people. Jones v. Harlan, Tex.Civ.
App., 109 S.W.2d 251, 254.
Constitutional Law
To retire an elected officer, by a vote of the
electorate. In 1911 the right to recall was pro-
vided in Idaho, Montana, North and South Da-
kota, Washington, Wisconsin, Wyoming, and Cali-
fornia. Like provisions were adopted in 1912 in
Ohio, Arizona, and Nebraska. The recall of
judges was adopted in Oregon in 1908; in Cali-
fornia in 1911; in Colorado, Arizona, and Nevada
in 1912.
International Law
To summon a diplomatic minister back to his
home court, at the same time depriving him of his
office and functions.
RECALL A JUDGMENT. To revoke, cancel, va-
cate, or reverse a judgment for matters of fact;
when it is annulled by reason of errors of law,
it is said to be "reversed."
RECANT. To withdraw or repudiate formally
and publicly. Pradlik v. State, 131 Conn. 682, 41
A.2d 906, 907.
RECAPITALIZATION. An arrangement where-
by stock, bonds or other securities of a corpora-
tion are adjusted as to amount, income or priority.
United Gas Improvement Co. v. Commissioner of
Internal Revenue, C.C.A.3, 142 F.2d 216, 218, 219.
Reshuffling of capital structure within framework
of existing corporation. Helvering v. Southwest
Consol. Corporation, La., 62 S.Ct. 546, 552, 315 U.
S. 194, 86 L.Ed. 789.
RECAPTION. A retaking, or taking back. A
species of remedy by the mere act of the party
injured, (otherwise termed "reprisal,") which hap-
pens when any one has deprived another of his
property in goods or chattels personal, or wrong-
fully detains one's wife, child, or servant. In this
case, the owner of the goods, and the husband,
parent, or master may lawfully claim and retake
them, wherever he happens to find them, so it be
not in a riotous manner, or attended with a
breach of the peace. 3 Inst. 134; 3 Bl.Comm. 4;
3 Steph.Comm. 358; Prigg v. Pennsylvania, 16
Pet. 612, 10 L.Ed. 1060. It also signifies the tak-
ing a second distress of one formerly distrained
during the plea grounded on the former distress.
Also a writ to recover damages for him whose
goods, being distrained for rent in service, etc.,
are distrained again for the same cause, pending
the plea in the county court, or before the jus-
tice. Fitzh. Nat. Brev. 71.
RECAPTURE. The taking from an enemy, by a
force friendly to the former owner, of a vessel
previously taken for prize by such enemy.
RECEDITUR A PLACITIS JURIS, POTIUS
QUAM INJURLE ET DELICTA MANEANT IM-
PUNITA. Positive rules of law [as distinguished
from maxims or conclusions of reason] will be
receded from, [given up or dispensed with,] ra-
ther than that crimes and wrongs should remain
unpunished. Bac. Max. 55, reg. 12.
RECEIPT. Written acknowledgment of the re-
ceipt of money, or a thing of value, without con-
taining any affirmative obligation upon either par-
ty to it; a mere admission of a fact, in writing.
Krutz v. Craig, 53 Ind. 574; Stone v. Steil, 230
Mich. 249, 202 N.W. 982, 983. And being a mere
acknowledgment of payment, is subject to parol
explanation or contradiction. Cappel v. Evans-
ville Oil Corporation, La.App., 195 So. 104, 105;
Adams v. Camden Safe Deposit & Trust Co., 15
N.J.Misc. 48, 188 A. 913, 914.
Act of receiving; also, the fact of receiving or
being received; that which is received; that
which comes in, in distinction from what is ex-
pended, paid out, sent away, and the like. State
v. Texas Co., 173 Tenn. 154, 116 S.W.2d 583, 584.
In old practice. Admission of a party to de-
fend a suit, as of a wife on default of the husband
in certain cases. Litt. § 668; Co. Litt. 352b.
RECEIPTOR. A name given in some of the states
to a person who receives from the sheriff goods
which the latter has seized under process of gar-
nishment, on giving to the sheriff a bond condi-
tioned to have the property forthcoming when
demanded or when execution issues. Story,
Bailm. § 124.
RECEIVE. To take into possession and control;
accept custody of. Young v. Alexander, 123 Miss.
708, 86 So. 461; Northwestern Consol. Milling Co.
v. Rosenberg, C.C.A.Pa., 287 F. 785, 788.
RECEIVER. An indifferent person between the
parties to a cause, appointed by the court to re-
ceive and preserve the property or fund in liti-
gation, and receive its rents, issues, and profits,
and apply or dispose of them at the direction of
the court when it does not seem reasonable that
either party should hold them. Or where a par-
ty is incompetent to do so, as in the case of an
infant. The remedy of the appointment of a re-
ceiver is one of the very oldest in the court of
chancery, and is founded on the inadequacy of the
remedy to be obtained in the court of ordinary
jurisdiction. Bisp. Eq. § 576; In re Guaranty In-
demnity Co., 256 Mich. 671, 240 N.W. 78. A fidu-
ciary of the court, appointed as an incident to
other proceedings wherein certain ultimate relief
is prayed. In re Granada Hotel Corporation, D.
C.Ill., 9 F.Supp. 909. He is a trustee or ministerial
officer representing court, and all parties in in-
terest in litigation, and property or fund intrust-
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RECEIVER
ed to him. Dallas Bank & Trust Co. v. Thomp-
son, Tex.Civ.App., 87 S'.W.2d 307, 308. See also
Receiver Pendente Lite and Receivership.
One who receives money to the use of another
to render an account. Story, Eq. Jur. § 446.
In criminal law. One who receives stolen goods
from thieves, and conceals them. Cowell. This
was always the prevalent sense of the word in
the common as well as the civil law.
RECEIVER GENERAL OF THE DUCHY OF
LANCASTER. An officer of the duchy court, who
collects all the revenues, fines, forfeitures, and
assessments within the duchy.
RECEIVER GENERAL OF THE PUBLIC REV-
ENUE. In English law. An officer appointed
in every county to receive the taxes granted by
parliament, and remit the money to the treasury.
RECEIVER OF FINES. An English officer who
receives the money from persons who compound
with the crown on original writs sued out of
chancery. Wharton.
RECEIVERS AND TRIERS OF PETITIONS. The
mode of receiving and trying petitions to parlia-
ment was formerly judicial rather than legisla-
tive, and the triers were committees of prelates,
peers, and judges, and, latterly, of the members
generally. Brown.
RECEIVER'S CERTIFICATE. A non-negotiable
evidence of debt, or debenture, issued by authority
of a court of chancery, as a first lien upon the
property of a debtor corporation in the hands
of a receiver. Beach, Rec. § 379.
RECEIVERS OF WRECK. Persons appointed by
the English board of trade. The duties of a re-
ceiver of wreck are to take steps for the preserva-
tion of any vessel stranded or in distress within
his district; to receive and take possession of all
articles washed on shore from the vessel; to use
force for the suppression of plunder and disorder;
to institute an examination on oath with respect
to the vessel; and, if necessary, to sell the vessel,
cargo, or wreck. Sweet.
RECEIVER PENDENTE LITE. A person ap-
pointed to take charge of the fund or property
to which the receivership extends while the case
remains undecided. The title to the property is
not changed by the appointment. The receiver
acquires no title, but only the right of possession
as the officer of the court. The title remains in
those in whom it was vested when the appoint-
ment was made. The object of the appointment
is to secure the property pending the litigation,
so that it may be appropriated in accordance with
the rights of the parties, as they May be deter-
mined by the judgment in the action. Title Guar-
antee & Trust Co. v. 457 Schenectady Ave., 257 N.
Y.S. 413, 417, 235 App.Div. 509.
RECEIVERSHIP. An extraordinary remedy of
an ancillary character; chief reason for its allow-
ance being to husband property in litigation for
benefit of person who may ultimately be found
entitled thereto. Pereira v. Wulf, 83 Mont. 343,
272 P. 532, 533. See, also, Receiver.
RECEIVING STOLEN GOODS. The short name
usually given to the offense of receiving any prop-
erty with the knowledge that it has been felon-
iously, or unlawfully stolen, taken, extorted, ob-
tained, embezzled, or disposed of. Sweet; Under-
wood v. State, 36 Okl.Cr. 21, 251 P. 507, 508; Win-
ters v. State, 80 Tex.Cr.R. 85, 188 S.W. 982.
RECENS INSECUTIO. In old English law.
Fresh suit; fresh pursuit. Pursuit of a thief im-
mediately after the discovery of the robbery. 1
Bl.Comm. 297.
ItECEPISSE DE COTISATION. In French law-
A receipt setting forth the extent of the interest
subscribed by a member of a mutual insurance
company. Arg. Fr. Merc. Law, 571.
RECEPTUS. Lat. In the civil law. The name
sometimes given to an arbitrator, because he had
been received or chosen to settle the differences
between the parties. Dig. 4, 8; Cod. 2, 56.
RECESS. In the practice of the courts, a short
interval or period of time during which the court
suspends business, but without adjourning. In re
Gannon, 69 Cal. 541, 11 P. 240. In legislative
practice, the interval, occurring in consequence of
an adjournment, between the sessions of the same
continuous legislative body; not the interval be-
tween the final adjournment of one body and the
convening of another at the next regular session.
Tipton v. Parker, 71 Ark. 193, 74 S.W. 298; Rey-
nolds v. Cropsey, 241 N.Y. 389, 150 N.E. 303, 307.
RECESSION. The act of ceding back; the res-
toration of the title and dominion of a territory,
by the government which now holds it, to the
government from which it was obtained by ces-
sion or otherwise. 2 White, Recop. 516.
RECESSUS MARIS. Lat. In old English law.
A going back; reliction or retreat of the sea.
RECHT. Ger. Right; justice; equity; the whole
body of law; unwritten law; law; also a right.
There is much ambiguity in the use of this term, an
ambiguity which it shares with the French "droit," the
Italian "diritto," and the English "right." On the one
hand, the term "Recht" answers to the Roman "jus," and
thus indicates law in the abstract, considered as the foun-
dation. of all rights, or the complex of underlying moral
principles which impart the character of justice to al: posi-
tive law, or give it an ethical content. Taken in this ab-
stract sense, the term may be an adjective, in which case
it is equivalent to the English "just," or a noun, in which
case it may be paraphrased by the expressions "justice,"
"morality," or "equity." On the other hand, it serves to
point out a right; that is, a power, privilege, faculty, or
demand, inherent in one person, and incident upon an-
other. In the latter signification "Recht" (or "droit," or
"diritto," or "right") is the correlative of "duty" or "ob-
ligation." In the former sense, it may be considered as
opposed to wrong, injustice, or the absence of law. The
word "Recht" has the further ambiguity that it is used in
contradistinction to "Gesetz," as "jus" is opposed to
"lex," or the unwritten law to enacted law. See Droit;
Jus; Right.
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RECLAIM
RECIDIVE. In French law. The state of an in-
dividual who having been convicted of a crime or
misdemeanor, commits one again. A relapse.
Dalloz.
RECIDIVIST. A habitual criminal. An incorri-
gible criminal. One who makes a trade of crime.
McDonald, Criminology, ch. viii; People v. Rave,
364 Ill. 72, 3 N.E.2d 972, 976.
RECIPROCAL CONTRACT. A contract, the par-
ties to which enter into mutual engagements. A
mutual or bilateral contract.
RECIPROCAL or INTERINSURANCE EX-
CHANGE. Group or association of persons co-
operating through an attorney in fact for purpose
of insuring themselves and each other. In re
Minnesota Ins. Underwriters, D.C.Minn., 36 F.2d
371, 372.
RECIPROCAL WILLS. Wills made by two or
more persons in which they make reciprocal tes-
tamentary provisions in favor of each other,
whether they unite in one will or each executes a
separate one. In re Cawley's Estate, 136 Pa. 628,
20 A. 567, 10 L.R.A. 93.
RECIPROCITY. Mutuality. The term is used in
international law to denote the relation existing
between two states when each of them gives the
subjects of the other certain privileges, on condi-
tion that its own subjects shall enjoy similar
privileges at the hands of the latter state. Sweet.
RECITAL. The formal statement or setting forth
of some matter of fact, in any deed or writing,
in order to explain the reasons upon which the
transaction is founded. The recitals are situated
in the premises of a deed, that is, in that part of
a deed between the date and the habendum, and
they usually commence with the formal word
"whereas." Brown.
The formal preliminary statement in a deed
or other instrument, of such deeds, agreements,
or matters of fact as are necessary to explain
the reasons upon which the transaction is found-
ed. 2 Bl.Comm. 298.
In pleading. The statement of matter as intro-
ductory to some positive allegation, beginning in
declarations with the words, "For that whereas."
Steph. Pl. 388, 389.
RECITE. To state in a written instrument facts
connected with its inception, or reasons for its
being made. Also to quote or set forth the words
or the contents of some other instrument or docu-
ment; as, to "recite" a statute. See Hart v. Balti-
more & 0. R. Co., 6 W.Va. 348.
RECK. To take heed; have a care, mind, heed.
Lancaster v. Carter, Tex.Com.App., 255 S.W. 392,
394.
RECKLESS. Not reeking; careless, heedless, in-
attentive; indifferent to consequences. According
to circumstances it may mean desperately heed-
less, wanton or willful, or it may mean only care-
less, inattentive, or negligent. People v. Sweet,
130 Misc.Rep. 612, 225 N.Y.S. 182, 183.
Reckless conduct, as respects common-law manslaughter,
must evince disregard of consequences under circumstances
involving danger to life or safety. State v. Custer, 129
Kan. 381, 282 P. 1071, 1078, 67 A.L.R. 909.
RECKLESS DISREGARD OF RIGHTS OF OTH-
ERS. As used in automobile guest law, mean
the voluntary doing by motorist of an improper
or wrongful act, or with knowledge of existing
conditions, the voluntary refraining from doing a
proper or prudent act when such act or failure
to act evinces an entire abandonment of any
care, and heedless indifference to results which
may follow and the reckless taking of chance of
accident happening without intent that any oc-
cur. Albert McGann Securities Co. v. Coen, 114
Ind.App. 60, 48 N.E.2d 58, 60. Gill v. Hayes, 188
Okl. 434, 108 P.2d 117, 120.
RECKLESS DRIVING. Operation of automobile
manifesting reckless disregard of possible conse-
quences and indifference to others' rights. People
v. Whitby, 44 N.Y.S.2d 76, 77.
RECKLESSNESS. Rashness; heedlessness; wan-
ton conduct. The state of mind accompanying an
act, which either pays no regard to its probably
or possibly injurious consequences, or which,
though forseeing such consequences, persists in
spite of such knowledge. Railroad Co. v. Bo-
demer, 139 Ill. 596, 29 N.E. 692, 32 Am.St.Rep. 218;
St. Louis, I. M. & S. Ry. Co. v. Plott, 108 Ark. 292,
157 S.W. 385, 386. Conduct amounting to more
than negligence. Barnard v. Heather, 135 Neb.
513, 282 N.W. 534, 537.
RECLAIM. To claim or demand back; to ask
for the return or restoration of a thing; to in-
sist upon one's right to recover that which was
one's own, but was parted with conditionally or
mistakenly; as, to reclaim goods which were ob-
tained from one under false pretenses. Witson
v. Succession of Staring, La.App., 175 So. 495, 498.
Feudal Law
It was used of the action of a lord pursuing,
prosecuting, and recalling his vassal, who had
gone to live in another place, without his permis-
sion.
International Law
The demanding of a thing or person to be de-
livered up or surrendered to the government or
state to which either properly belongs, when, by
an irregular means, it has come into the posses-
sion of another. Wharton.
Law of Property
Spoken of animals, to reduce from a wild to a
tame or domestic state; to tame them. In an
analogous sense, to reclaim land is to reduce
marshy or swamp land to a state fit for cultiva-
tion and habitation.
Scotch Law
To appeal. The reclaiming days in Scotland
are the days allowed to a party dissatisfied with
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RECLAIMED
the judgment of the lord ordinary to appeal there-
from to the inner house; and the petition of ap-
peal is called the reclaiming "bill," "note," or "pe-
tition." Mozley & Whitley; Bell.
RECLAIMED ANIMALS. Those that are made
tame by art, industry, or education, whereby a
qualified property may be acquired in them.
RECLAIMING BILL. In Scotch law. A petition
of appeal or review of a judgment of the lord
ordinary or other inferior court. Bell.
RECLAMATION DISTRICT. A subdivision of a
state created by legislative authority, for the pur-
pose of reclaiming swamp, marshy, or desert
lands within its boundaries and rendering them fit
for habitation or cultivation, generally with funds
raised by local taxation or the issue of bonds,
and sometimes with authority to make rules or
ordinances for the regulation of the work in hand.
RECLUSION. In French law and in Louisiana.
Incarceration as a punishment for crime; a tem-
porary, afflictive, and infamous punishment, con-
sisting in being confined at hard labor in a penal
institution, and carrying civil degradation.
Phelps v. Reinach, 38 La.Ann. 551; Jurgens v.
Ittman, 47 La.Ann. 367, 16 So. 952.
RECOGNITION. Ratification; confirmation; an
acknowledgment that something done by another
person in one's name had one's authority.
An inquiry conducted by a chosen body of men,
not sitting as part of the court, into the facts in
dispute in a case at law; these "recognitors" pre-
ceded the jurymen of modern times, and reported
their recognition or verdict to the court. Stim.
Law Gloss.
RECOGNITIONE ADN1ULLANDA PER VIM ET
DURITIEM FACTA. A writ to the justices of
the common bench for sending a record touching
a recognizance, which the recognizor suggests
was acknowledged by force and duress; that if
it so appear the recognizance may be annulled.
Reg. Orig. 183.
RECOGNITORS. In English law. The name by
which the jurors impaneled on an assize are
known. See Recognition.
The word is sometimes met in modern books,
as meaning the person who enters into a recog-
nizance, being thus another form of recognizor.
RECOGNIZANCE. An obligation of record, en-
tered into before some court of record, or magis-
trate duly authorized, with condition to do some
particular act; as to appear at the assizes, or
criminal court, to keep the peace, to pay a debt,
or the like. It resembles a bond, but differs from
it in being an acknowledgment of a former debt
upon record. 2 Bl.Comm. 341; Albrecht v. State,
132 Md. 150, 103 A. 443, 444; Modern Finance Co.
v. Martin, 311 Mass. 509, 42 N.E.2d 533, 534.
In the practice of several of the states, a spe-
cies of bail bond or security, given by the prisoner
either on being bound over for trial or on his
taking an appeal.
In criminal law, a person who has been found
guilty of an offense may, in certain cases, be re-
quired to enter into a recognizance by which he
binds himself to keep the peace for a certain per-
iod. Sweet.
In criminal cases, a "bail bond" is a contract under seal,
executed by accused, and from its nature requiring sureties
or bail, to whose custody he is committed, while a "re-
cognizance" is an obligation of record, entered into before
some court or magistrate authorized to take it, with con-
dition to do some particular act, and a prisoner is often
eilowed so to obligate himself to answer to the charge.
State v. Bradsher, 189 N.C. 401, 127 S.E. 349, 351, 38 A.L.R.1102.
RECOGNIZE. To try; to examine in order to de-
termine the truth of a matter. Also to enter into
a recognizance.
RECOGNIZED. Actual and publicly known.
Commonwealth v. Kimball, 299 Mass. 353, 13 N.E.
2d 18, 22, 114 A.L.R. 1440.
RECOGNIZEE. He to whom one is bound in a
recognizance.
RECOGNIZOR. He who enters into a recogniz-
ance.
RÈCOLEMENT. In French law. This is the pro-
cess by which a witness, who has given his dep-
osition, reads the same over and scrutinizes it,
with a view to affirming his satisfaction with it
as it stands, or to making such changes in it as
his better recollection may suggest to him as
necessary to the truth. This is necessary to the
validity of the deposition. Poth. Proc. Crim. §
4, art. 4.
RECOMMEND. To advise or counsel. Kirby v.
Nolte, 351 Mo. 525, 173 S.W.2d 391.
RECOMMENDATION. In feudal law. A method
of converting allodial land into feudal property.
The owner of the allod surrendered it to the king
or a lord, doing homage, and received it back as
a benefice or feud, to hold to himself and such of
his heirs as he had previously nominated to the
superior.
The act of one person in giving to another a
favorable account of the character, responsibility,
or skill of a third.
Letter of Recommendation
A writing whereby one person certifies concern-
ing another that he is of good character, solvent,
possessed of commercial credit, skilled in his
trade or profession, or otherwise worthy of trust,
aid, or employment. It may be addressed to an
individual or to whom it may concern, and is de-
signed to aid the person commended in obtaining
credit, employment, etc. McDonald v. Illinois
Cent. R. Co., 187 Ill. 529, 58 N.E. 463.
RECOMMENDATORY. Precatory, advisory, or
directory.
Recommendatory words in a will are such as do not ex-
press the testator's command in a peremptory form, but
advise, counsel, or suggest that a certain course be pursued
or disposition made.
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RECORD
RECOMPENSATION. In Scotland, where a par-
ty sues for a debt, and the defendant pleads com-
pensation, i. e., set-off, the plaintiff may allege a
compensation on his part; and this is called a
"recompensation." Bell.
RECOMPENSE. A reward for services; remun-
eration for goods or other property.
RECOMPENSE OR RECOVERY IN VALUE.
That part of the judgment in a "common recov-
ery" by which the tenant is declared entitled to
recover lands of equal value with those which
were warranted to him and lost by the default of
the vouchee. 2 Bl.Comm. 358-359.
RECONCILIATION. The renewal of amicable re-
lations between two persons who had been at
enmity or variance; usually implying forgive-
ness of injuries on one or both sides. It is some-
times used in the law of divorce as a term synony-
mous or analogous to "condonation." Martin v.
Martin, 151 La-. 530, 92 So. 46, 48.
RECONDUCTION. In the civil law. A renewing
of a former lease; relocation. Dig. 19, 2, 13, 11;
Code Nap. arts. 1737-1740.
RECONSTRUCT. To construct again, to rebuild,
either in fact or idea, or to remodel, to form again
or anew as in the imagination or to restore again
as an entity the thing which was lost or destroyed.
City of Seattle v. Northern Pac. Ry. Co., 12 Wash.
2d 247, 121 P.2d 382, 386.
RECONSTRUCTION. Act of constructing again.
It presupposes the nonexistence of the thing to be
reconstructed, as an entity; that the thing before
existing has lost its entity. McCarty v. Boulevard
Com'rs of Hudson County, 91 N.J.Law, 137, 106 A.
219, 220; Miller Hatcheries v. Buckeye Incubator
Co., C.C.A.Mo., 41 F.2d 619:
Also the name commonly given to the process
of reorganizing, by acts of congress and executive
action, the governments of the states which had
passed ordinances of secession, and of re-estab-
lishing their constitutional relations to the na-
tional government, restoring their representation
in congress, and effecting the necessary changes
in their internal government, after the close of
the civil war. Black, Const. Law (3d Ed.) 48;
Texas v. White, 7 Wall. 700, 19 L.Ed. 227.
RECONTINUANCE. Used to signify that a per-
son has recovered an incorporeal hereditament
of which he had been wrongfully deprived. Thus,
A. is disseised of a mannor, whereunto an ad-
vowson is appendant, an estranger [i. e., neither
A. nor the disseisor] usurries to the advowson;
if the disseisee [A.] enter into the mannor, the
advowson is recontinued again, which was sev-
ered by the usurpation. * * * And so note a
diversitie between a recontinuance and a remit-
ter; for a remitter cannot be properly, unless
there be two titles; but a recontinuance may be
where there is but one. Co. Litt. 363b; Sweet.
RECONVENIRE. Lat. In the canon and civil
law. To make a cross-demand upon the actor, or
plaintiff. 4 Reeve, Eng. Law, 14, and note, (r).
RECONVENTION. In the civil law. An action
by a defendant against a plaintiff in a former
action; a cross-bill or litigation.
The term is used in practice in the states of
Louisiana and Texas, derived from the reconven-
tio of the civil law. Reconvention is not identical
with set-off, but more extensive. Pacific Exp. Co.
v. Malin, 132 U.S. 531, 10 S.Ct. 166, 33 L.Ed. 450;
Suberville v. Adams, 47 La.Ann. 68, 16 So. 652;
Gimbel v. Gomprecht, 89 Tex. 497, 35 S.W. 470.
RECONVENTIONAL DEMAND. Any plea by a
defendant which constitutes more than mere de-
fense and amounts to counterclaim. Alfonso v.
Ruiz, La.App., 2 So.2d 480, 483, 484.
RECONVERSION. That imaginary process by
which a prior constructive conversion is annulled
and the property restored in contemplation of
equity to its original actual quality. Seagle v.
Harris, 214 N.C. 339, 199 S.E. 271, 273.
RECONVEYANCE. It takes place where a mort-
gage debt is paid off, and the mortgaged property
is conveyed again to the mortgagor or his rep-
resentatives free from the mortgage debt. Sweet.
RECOPILACION DE INDIAS. A collection of
Spanish colonial law, promulgated A. D. 1680.
See Schm. Civil Law, Introd. 94.
RECORD, v. To commit to writing, to printing,
to inscription, or the like, to make an official note
of, to write, transcribe, or enter in a book or on
parchment, for the purpose of preserving authen-
tic evidence of, or on a wax cylinder, rubber disk,
etc., for reproduction, as by a phonograph, or to
register or enroll. To transcribe a document, or
enter the history of an act or series of acts, in
an official volume, for the purpose of giving no-
tice of the same, of furnishing authentic evidence,
and for preservation. Cady v. Purser, 131 Cal.
552, 63 P. 844, 82 Am.St.Rep. 391; Shimmel v.
People, 108 Colo. 592, 121 P.2d 491, 493.
RECORD, n. A written account of some act,
transaction, or instrument, drawn up, under au-
thority of law, by a proper officer, and designed
to remain as a memorial or permanent evidence
of the matters to which it relates. People ex rel.
Simons v. Dowling, 146 N.Y.S. 919, 920, 84 Misc.
201. A memorandum public or private, of what
has been done, ordinarily applied to public rec-
ords only, in which sense it is a written memorial
made by a public officer. Nogueira v. State, 123
Tex.Cr.R. 449, 59 S.W.2d 831.
The act or fact of recording or being recorded, reduction
to writing as evidence, also, the writing so made, a regis-
ter, a family record, official contemporaneous writing, an
authentic official copy of document entered in book or
deposited in keeping of officer designated by law, an official
contemporaneous memorandum stating the proceedings of
a court or official copy of legal papers used in a case.
Shimmel v. People, 108 Colo. 592, 121 P.2d 491, 493.
There are three kinds of records, viz.: (1) ju-
dicial, as an attainder; (2) ministerial, on oath,
being an office or inquisition found; (3) by way
of conveyance, as a deed enrolled. Wharton.
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RECORD
Practice
A written memorial of all the acts and pro-
ceedings in an action or suit, in a court of record.
The official and authentic history of the cause,
consisting in entries of each successive step in
the proceedings, chronicling the various acts of
the parties and of the court, couched in the formal
language established by usage, terminating with
the judgment rendered in the cause, and intended
to remain as a perpetual and unimpeachable
memorial of the proceedings and judgment. State
v. Brewer, 19 Ala.App. 291, 97 So. 160, 161.
At common law, a roll of parchment upon which the pro-
ceedings and transactions of a court are entered or drawn
up by its officers, and which is then deposited in its treas-
ury in perpetuam rei memoriam. 3 Steph.Comm. 583; 3
Bl.Comm. 24. A court of record is that where the acts and
judicial proceedings are enrolled in parchment for a per-
petual memorial and testimony, which rolls are called the
"records of the court," and are of such high and super-
eminent authority that their truth is not to be called in
question. Hahn v. Kelly, 34 Cal. 422, 94 Am.Dec. 742.
O'Connell v. Hotchkiss, 44 Conn. 53; Murrah v. State,
51 Miss. 656; State v. Anders, 64 Kan. 742, 68 P. 668;
Wilkinson v. Railway Co., C.C., 23 F. 562; In re Christern,
43 N.Y.Super.Ct. 531.
In the practice of appellate tribunals, the his-
tory of the proceedings on the trial of the action
below, (with the pleadings, offers, objections to
evidence, rulings of the court, exceptions, charge,
etc.,) in so far as the same appears in the record
furnished to the appellate court in the paper-
books or other transcripts. Hence, derivatively,
it means the aggregate of the various judicial
steps taken on the trial below, in so far as they
were taken, presented, or allowed in the formal
and proper manner necessary to put them upon
the record of the court. This is the meaning in
such phrases as "no error in the record," "con-
tents of the record," "outside the record," etc. Le
Clair v. Calls Him, 106 Okl. 247, 233 P. 1087, 1091.
General
Conveyances by record. Extraordinary assur-
ances; such as private acts of parliament and
royal grants.
Courts of record. Those whose judicial acts and
proceedings are enrolled in parchment, for a per-
petual memorial and testimony, which rolls are
called the "records of the court," and are of such
high and supereminent authority that their truth
is not to be called in question. Every court of
record has authority to fine and imprison for con-
tempt of its authority. 3 Broom & H. Comm. 21,
30. Page v. Turcott, 179 Tenn. 491, 167 S.W.2d
350, 354.
Debts of record. Those which appear to be due
by the evidence of a court of record; such as a
judgment, recognizance, etc.
Diminution of record. Incompleteness of the
record sent up on appeal. See Diminution.
Face of record. See Face of Record.
False record. See False Record.
Judicial record. A precise history of suit from
commencement to termination, including conclu-
sion of law. People v. Fox, 346 Ill. 374, 178 N.E.
907, 910.
Matter of record. See Matter.
Nul tiel record. See Nul.
Of record. See that title.
Pocket record. A statute so called. Brownl. pt.
2, p. 81.
Public record. A record, memorial of some act
or transaction, written evidence of something
done, or document, considered as either concerning
or interesting the public, affording notice or in-
formation to the public, or open to public inspec-
tion. Keefe v. Donnell, 92 Me. 151, 42 A. 345;
Colnon v. Orr, 71 Cal. 43, 11 P. 814.
Record and writ clerk. Four officers of the
court of chancery were designated by this title,
whose duty it was to file bills brought to them
for that purpose. Business was distributed among
them according to the initial letter of the surname
of the first plaintiff in a suit. Hunt, Eq. These
officers are now transferred to the high court of
justice under the judicature acts.
Record commission. The name of a board of
commissioners appointed for the purpose of
searching out, classifying, indexing, or publishing
the public records of a state or county.
Records of a corporation. Import the tran-
script of its charter and by-laws, the minutes of
its meetings—the books containing the accounts
of its official doings and the written evidence of
its contracts and business transactions. U. S. v.
Louisville & N. R. Co., 35 S.Ct. 363, 368, 236 U.S.
318, 59 L.Ed. 598; Maremont v. Old Colony Life
Ins. Co., 189 Ill.App. 231, 232.
Record of nisi prius. In English law. An of-
ficial copy or transcript of the proceedings in an
action, entered on parchment and "sealed and
passed," as it is termed, at the proper office; it
serves as a warrant to the judge to try the cause,
and is the only document at which he can judicial-
ly look for information as to the nature of the
proceedings and the issues joined. Brown.
Title of record. A title to real estate, evidenced
and provable by one or more conveyances or
other instruments all of which are duly entered
on the public land records.
Trial by record. A species of trial adopted for
determining the existence or non-existence of a
record. When a record is asserted by one party
to exist, and the opposite party denies its exist-
ence under the form of a traverse that there is
no such record remaining in court as alleged, and
issue is joined thereon, this is called an "issue
of nul tiel record," and in such case the court
awards a trial by inspection and examination of
the record. Upon this the party affirming its
existence is bound to produce it in court on a day
given for the purpose, and, if he fails to do so,
judgment is given for his adversary. Co. Litt.
117b, 260a; 3 Bl. Comm. 331.
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RECOUPMENT
RECORD, ESTOPPEL BY. An estoppel founded
upon matter of record; as a confession, or admis-
sion made in pleading in a court of record, which
precludes the party from afterwards contesting
the same fact in the same suit. Steph. Pl. 197.
It arises from or is founded upon the adjudication of
a competent court. Smith v. Urquhart, 129 Fla. 742, 176
So. 787, 789. Confessions or admissions made in pleadings
in a court of record, decrees, and other final determina-
tions work estoppels. Bradner v. Howard, 75 N.Y. 417;
Butterfield v. Smith, 101 U.S. 570, 25 L.Ed. 868; Denver
City Irr. & Water Co. v. Middaugh, 12 Colo. 434, 21 Pac.
565, 13 Am.St.Rep. 234. An "estoppel by record" is the
preclusion to deny the truth of a matter set forth in a rec-
ord, whether judicial or legislative, also to deny the facts
adjudicated by a court of competent jurisdiction. Swofford
Bros. Dry Goods Co. v. Owen, 37 Okl. 616, 133 P. 193, 198,
L.R.A.1916C, 189; Watson v. Goldsmith, 205 S.C. 215, 31
S.E.2d 317, 320.
An "estoppel by record" cannot be invoked where allega-
tions or recitals did not conclude pleader in prior proceed-
ing. Blackburn v. Blackburn, Tex.Civ.App., 163 S.W.2d
251, 255. It bars a second action between the same parties
on an issue necessarily raised and decided in the first ac-
tion. Woods v. Duval, 151 Kan. 472, 99 P.2d 804, 808. It
exists only as between the same parties, or those in privity
with them, in same case on same issues. Smith v. Maine,
260 N.Y.S. 425, 145 Misc. 521. The doctrine prevents a
party not only from litigating again what was actually
litigated iri the former case, but litigating what might have
been litigated therein. Kuchenreuther v. Chicago, M. St.
P. & P. R. Co., 225 Wis. 613, 275 N.W. 457.
Defense of res judicata a plea of "estoppel by record".
Hull v. Hercules Powder Co., 20 N.J.Misc. 168, 26 A.2d 164,
168.
RECORDA SUNT VESTIGIA VETUSTATIS ET
VERITATIS. Records are vestiges of antiquity
and truth. 2 Rolle, 296.
RECORDARE. In American practice. A writ to
bring up judgments of justices of the peace. Hal-
combe v. Loudermilk, 48 N.C. 491.
RECORDARI FACIAS LOQUELAM. In English
practice. A writ by which a suit or plaint in re-
plevin may be removed from a county court to
one of the courts of Westminster Hall. 3 Bl.
Comm. 149; 3 Steph. Pl. 522, 666. So termed
from the emphatic words of the old writ, by which
the sheriff was commanded to cause the plaint
to be recorded, and to have the record before the
superior court. Reg. Orig. 5b.
RECORDATUR. In old English practice. An
entry made upon a record, in order to prevent any
alteration of it. 1 Ld. Raym. 211. An order or
allowance that the verdict returned on the nisi
prius roll be recorded.
RECORDER, v. L. Fr. In Norman law. To
recite or testify on recollection what had previous..
ly passed in court. This was the duty of the judg-
es and other principal persons who presided at the
placitum; thence called "recordeurs." Steph. Pl.,
Append. note 11.
RECORDER, n. In old English law. A barrister
or other person learned in the law, whom the
mayor or other magistrate of any city or town
corporate, having jurisdiction or a court of record
within their precincts, associated to him for his
better direction in matters of justice and proceed-
ings according to law. Cowell.
A magistrate, in the judicial systems of some of
the states, who has a criminal jurisdiction anal-
ogous to that of a police judge or other commit-
ting magistrate, and usually a limited civil juris-
diction, and sometimes authority conferred by
statute in special classes of proceedings. Leige-
ber v. State, 17 Ala.App. 551, 86 So. 126; City of
Colton v. Superior Court in and for San Bernar-
dino County, 84 Cal.App. 303, 257 P. 909, 911.
An officer appointed to make record or enrol-
ment of deeds and other legal instruments author-
ized by law to be recorded.
RECORDER OF LONDON. One of the justices
of oyer and terminer, and a justice of the peace
of the quorum for putting the laws in execution
for the preservation of the peace and government
of the city. Being the mouth of the city, he de-
livers the sentences and judgments of the court
therein, and also certifies and records the city
customs, etc. He is chosen by the lord mayor and
aldermen, and attends the business of the city
when summoned by the lord mayor, etc. Whart-
on.
RECORDING ACTS. Statutes enacted in the-sev-
eral states relative to the official recording of
deeds, mortgages, bills of sale, chattel mortgages,
etc., and the effect of such records as notice to
creditors, purchasers, incumbrancers, and others
interested.
RECORDS, EARLY ENGLISH. A record com-
mission was appointed in 1800 by parliament,
which in 37 years of service printed many records
of England, Wales and Scotland. See their re-
ports. Extracts from that on the "Statutes of the
Realm" will be found in 2 Sel. Essays in Anglo.
Amer. L. H. 171. See 2 Holdsw. Hist. E. L.
RECORDUM. A record; a judicial record. It is
used in the phrase prout patet per recordum,
which is a formula employed, in pleading, for
reference to a record, signifying as it appears
from the record. 1 Chit. Pl. 385; Philpot v. Mc-
Arthur, 10 Me. 127.
RECOUP, or RECOUPE. To deduct, defalk, dis-
count, set off, or keep back; to withhold part of
a demand.
RECOUPMENT. In practice. Defalcation or dis-
count from a demand. A keeping back something
which is due, because there is an equitable reason
to withhold it. Tomlins. A right of the defend-
ant to have a deduction from the amount of the
plaintiff's damages, for the reason that the plain-
tiff has not complied with the cross-obligations or
independent covenants arising under the same
contract. Hoover Commercial Co. v. Humphrey,
107 Miss. 810, 66 So. 214, 216.
It implies that plaintiff has cause of action, but asserts
that defendant has counter cause of action growing out of
breach of some other part of same contract on which plain-
tiff's action is founded, or for some cause connected Ovith
contract. Marianna Lime Products Co. v. McKay, 109 Fla.
275, 147 So. 264, 267; Storrs v. Storrs, 130 Fla. 717, 178 So.
841, 843.
It is keeping back something which is due because there
is an equitable reason to withhold it; and is now uni-
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RECOUPMENT
formly applied where a man brings an action for breach of
a contract between him and the defendant; and where the
latter can show that some stipulation in the same contract
was made by the plaintiff, which he has violated, the de-
fendant may, if he choose, instead of suing in his turn,
recoupe his damages arising from the breach committed by
the plaintiff, whether they be liquidated or not. Ives v.
Van Eppes, 22 Wend., N.Y., 156. And see Barber v. Chap-
in, 28 Vt. 413.
In speaking of matters to be shown in defense, the term
"recoupment" is often used as synonymous with "reduc-
tion." The term is of French origin, and signifies cutting
again, or cutting back, and, as a defense, means the cut-
ting back on the plaintiff's claim by the defendant. Like
reduction, it is of necessity limited to the amount of the
plaintiff's claim. It is properly applicable to a case where
the same contract imposes mutual duties and obligations
on the two parties, and one seeks a remedy for the breach
of duty by the second, and the second meets the demand
by a claim for the breach of duty by the first. Davenport
v. Hubbard, 46 Vt. 207, 14 Am. Rep. 620.
"Recoupment" differs from "set-off" in this respect :
that any claim or demand the defendant may have against
the plaintiff may be used as a set-off, while it is not a
subject for recoupment unless it grows out of the very
same transaction which furnishes the plaintiff's cause of
action. The term is, as appears above, synonymous with
"reduction;" but the latter is not a technical term of the
law; the word "defalcation," in one of its meanings, ex-
presses the same idea, and is used interchangeably with
recoupment. Recoupment, as a remedy, corresponds to the
reconvention of the civil law. Dexter-Portland Cement Co.
v. Acme Supply Co., 147 Va. 758, 133 S.E. 788, 790; Lovett
v. Lovett, 93 Fla. 611, 112 So. 768, 780.
"Recoupment" is the right to set off unliquidated dam-
ages, while the right of "set-off," comprehends only
liquidated damages, or those capable of being ascertained
by calculation. Alley v. Bessemer Gas Engine Co., Tex.
Civ.App., 228 S.W. 963, 966. Recoupment is confined to
matters arising out of the transaction or contract upon
which suit is brought, not depending upon whether the
matter be liquidated or unliquidated. J. C. Lysle Milling
Co. v. North Alabama Grocery Co., 201 Ala. 222, 77 So. 748,
749. While there is a well-defined distinction between set-
off and recoupment, they are each, in a sense, set-offs.
Lehman v. Austin, 195 Ala. 244, 70 So. 653, 655.
RECOURSE. To recur. As to "Without Re-
course," see that title.
RECOUSSE. Fr. In French law. Recapture.
Emerig. Traite des Assur. c. 12, § 23.
RECOVER. To get or obtain again, to collect, to
get renewed possession of; to win back; to re-
gain, as lost property, territory, appetite, health,
courage. In a narrower sense, to be successful in
a suit, to collect or obtain amount, to have judg-
ment, to obtain a favorable or final judgment, to
obtain in any legal manner in contrast to volun-
tary payment. Covert v. Randles, 53 Ariz. 225, 87
P.2d 488, 490. Olds v. General Acc. Fire and Life
Assur. Corp., 67 Ca1.App.2d 812, 155 P.2d 676, 680.
RECOVEREE. In old conveyancing. The party
who suffered a common recovery.
RECOVERER. The demandant in a common re-
covery, after judgment has been given in his fa-
vor.
RECOVERY. In its most extensive sense, the
restoration or vindication of a right existing in a
person, by the formal judgment or decree of a
competent court, at his instance and suit, or the
obtaining, by such judgment, of some right or
property which has been taken or withheld from
him. This is also called a "true" recovery, to dis-
tinguish it from a "feigned" or "common" recov-
ery. See Common Recovery.
The obtaining of a thing by the judgment of a
court, as the result of an action brought for that
purpose. Vaughan v. Humphreys, 153 Ark. 140,
239 S.W. 730, 22 A.L.R. 1201.
The amount finally collected, or the amount of
judgment. In re Lahm, 179 App.Div. 757, 167
N.Y.S. 217, 219.
Final Recovery
The final judgment in an action. Also the final
verdict in an action, as distinguished from the
judgment entered upon it. Fisk v. Gray, 100 Mass.
193.
RECREANT. Coward or craven. The word pro-
nounced by a combatant in the trial by battel,
when he acknowledged himself beaten. 3 Bl.
Comm. 340.
RECRIMINATION. A charge made by an ac-
cused person against the accuser; in particular
a counter-charge of adultery or cruelty made by
one charged with the same offense in a suit for
divorce, against the person who has charged him
or her, Wharton. A showing by the defendant
of any cause of divorce against the plaintiff, in bar
of the plaintiff's cause of divorce. Morrison v.
Morrison, 38 Idaho 45, 221 P. 156, 158. And to bar
divorce, complainant's misconduct need not be of
equal degree with that of defendant, but must be
of same general character. Carter v. Carter, Tex.
Civ.App., 151 S.W.2d 884, 885.
RECRUIT. A newly-enlisted soldier.
RECRUITING. Within 50 U.S.C.A. § 2388(a), de-
nouncing the offense of obstructing the "recruit-
ing or enlistment service," "recruiting" is gaining
fresh supplies for the forces, as well by draft as
otherwise, and put as an alternative to enlist-
ment or voluntary enrollment. U. S. v. Prieth,
D.C.N.J., 251 F. 946, 951.
RECTA PRISA REGIS. In old English law. The
king's right to prisage, or taking of one butt or
pipe of wine before and another behind the mast,
as a custom for every ship laden with wines. Cow-
ell.
RECTIFICATION OF BOUNDARIES. The action
to rectify or ascertain the boundaries of two ad-
joining pieces of land. Sweet.
RECTIFICATION OF REGISTER. The process
by which a person whose name is wrongly en-
tered on (or omitted from) a register may com-
pel the keeper of the register to remove (or enter)
his name. Sweet.
RECTIFIER. As used in the United States in-
ternal revenue laws, this term is not confined to a
person who runs spirits through charcoal, but is
applied to any one who rectifies or purifies spirits
in any manner whatever, or who makes a mix-
ture of spirits with anything else, and sells it un-
der any name. Quantity of Distilled Spirits, 3
Ben. 73, Fed.Cas.No.11,494.
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RECUPERATORES
•RECTIFY. To correct or define something which
is erroneous or doubtful. Sweet.
Thus, where the parties to an agreement have deter-
mined to embody its terms in the appropriate and conclu-
sive form, but the instrument meant to effect this purpose
(e. g., a conveyance, settlement, etc.) is, by mutual mis-
take, so framed as not to express the real intention of the
parties, an action may be brought in the chancery division
of the high court to have it rectified. Sweet.
RECTITUDO. Lat. Right or justice; legal dues;
tribute or payment. Cowell.
RECTO, BREVE DE. A writ of right, which was
of so high a nature that as other writs in real ac-
tions were only to recover the possession of the
land, etc., in question, this aimed to recover the
seisin and the property, and thereby both the
rights of possession and property were tried to-
gether. Cowell.
RECTO DE ADVOCATIONE ECCLESUE. A
writ which lay at common law, where a man had
right of advowson of a church, and, the parson
dying, a stranger had presented. Fitzh. Nat.
Brev. 30.
RECTO DE CUSTODIA TERRIE ET HIEREDIS.
A writ of right of ward of the land and heir.
Abolished.
RECTO DE DOTE. A writ of right of dower,
which lay for a widow who had received part of
of her dower, and demanded the residue, against
the heir of the husband or his guardian. Abol-
ished. 23 & 24 Viet. c. 126, § 26.
RECTO DE DOTE UNDE NIHIL HABET. A
writ of right of dower whereof the widow had
nothing, which lay where her deceased husband,
having divers lands or tenements, had assured no
dower to his wife, and she thereby was driven to
sue for her thirds against the heir or his guard-
ian. Abolished.
RECTO DE RATIONABILI PARTE. A writ of
right, of the reasonable part, which lay between
privies in blood; as brothers in gavelkind, sisters,
and other coparceners, for land in fee-simple.
Fitzh. Nat. Brev. 9.
RECTO QUANDO (or QUIA) DOMINUS RE-
MISIT CURIAM. A writ of right, when or be-
cause the lord had remitted his court, which lay
where lands or tenements in the seignory of any
lord were in demand by a writ of right. Fitzh.
Nat. Brev. 16.
RECTO SUR DISCLAIMER. An abolished writ
on disclaimer.
RECTOR. In ecclesiastical law. One who rules
or governs. A name given to certain officers of
the Roman church. Dict. Canonique.
The spiritual head and presiding officer of
church. A clergyman elected by the members of
the parish to have permanent charge of it. He
is the official head of the parish and ex officio head
of all parochial organizations. Hunter v. Rector,
Wardens and Vestrymen of St. Anna's Chapel, 185
La. 217, 168 So. 780, 783.
Black's Law Dictionary Revised 4th Ed.-91
In English law. He that has full possession
of a parochial church. A rector (or parson) has,
for the most part, the whole right to all thr ec-
clesiastical dues in his parish; while a vicar has
an appropriator over him, entitled to the best
part of the profits,- to whom the vicar is, in effect,
perpetual curate, with a standing salary. 1 Bl.
Comm. 384, 388; Bird v. St. Mark's Church, 62
Iowa 567, 17 N.W. 747.
RECTOR PROVINCLE. Lat. In Roman law.
The governor of a province. Cod. 1, 40.
RECTOR SINECURE. A rector of a parish who
has not the cure of souls. 2 Steph. Comm. 683.
RECTORIAL TITHES. Great or predial tithes.
RECTORY. An entire parish church, with all its
rights, glebes, tithes, and other profits whatso-
ever; otherwise commonly called a "benefice."
Gibson v. Brockway, 8 N.H. 470, 31 Am.Dec. 200;
Pawlet v. Clark, 9 Cranch, 326, 3 L.Ed. 735. A
rector's manse, or parsonage house. Spelman.
RECTUM. Lat. Right; also a trial or accusation.
Bract.; Cowell.
RECTUM ESSE. To be right in court.
RECTUM ROGARE. To ask for right; to peti-
tion the judge to do right.
RECTUM, STARE AD. To stand trial or abide
by the sentence of the court.
RECTUS. In the old law of descents. Right;
upright; the opposite of obliquus (q. v.).
RECTUS IN CURIA. Lat. Right in court. The
condition of one who stands at the bar, against
whom no one objects any offense. When a per-
son outlawed has reversed his outlawry, so that
he can have the benefit of the law, he is said to
be "rectus in curia." Jacob.
RECUPERATIO. Lat. In old English law. Re-
covery; restitution by the sentence of a judge of
a thing that has been wrongfully taken or de-
tained. Co. Litt. 154a.
RECUPERATIO,  e., AD REM, PER INJUR-
IAM EXTORTAM SIVE DETENTAM, PER
SENTENTIAM JUDICIS RESTITUTIO. Co.
Litt. 154a. Recovery, i. e., restitution by sentence
of a judge of a thing wrongfully extorted or de-
tained.
RECUPERATIO EST ALICUJUS REI IN CAUS-
AM, ALTERIUS ADDUCTJE PER JUDICEM
ACQUISITIO. Co. Litt. 154a. Recovery is the
acquisition by sentence of a judge of anything
brought into the cause of another.
RECUPERATORES. In Roman law. A species
of judges first appointed to decide controversies
between Roman citizens and strangers concern-
ing rights requiring speedy remedy, but whose
jurisdiction was gradually extended to questions
which might be brought before ordinary judges.
Mackeld. Rom. Law, § 204.
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RECURRENDUM
RECURRENDUM EST AD EXTRAORDINAR-
IUM QUANDO NON VALET ORDINARIUM.
We rhust have recourse to what is extraordinary,
when what is ordinary fails.
RECUSANTS. In English law. Persons who
willfully absent themselves from their parish
church, and on whom penalties were imposed by
various statutes passed during the reigns of Eliz-
abeth and James I. Wharton. Those persons
who separate from the church established by law.
Termes de la Ley. The term was practically re-
stricted to Roman Catholics.
RECUSATIO TESTIS. Lat. In the civil law.
Rejection of a witness, on the ground of incom-
petency. Best, Ev. Introd. 60, § 60.
RECUSATION. In the civil law. A species of
exception or plea to the jurisdiction, to the effect
that the particular judge is disqualified from hear-
ing the cause by reason of interest or prejudice.
Poth. Proc. Civile, pt. 1, c. 2, § 5. The challenge
of jurors. Code Prac. La. arts. 499, 500. An act,
of what nature soever it may be, by which a
strange heir, by deeds or words, declares he will
not be heir. Dig. 29, 2, 95.
RED, RAED, or REDE. Sax. Advice; counsel.
RED. A color.
A communist; radical. The term contemplates
a follower of the red flag of the Russian revolu-
tion. A name of opprobrium sometimes given to
those with a liberal political outlook, especially to
those advocating social, political or economic re-
form.
RED BOOK OF THE EXCHEQUER. An ancient
record, wherein are registered the holders of
lands per baroniam in the time of Henry II., the
number of hides of land in certain counties be-
fore the Conquest, and the ceremonies on the
coronation of Eleanor, wife of Henry III. Jacob;
Cowell.
RED FLAG. The recognized standard or symbol
of an extreme revolutionary party or of those who
seek social as well as political revolution and an-
archy; as the red flag of the Commune. People
v. Chambers, 22 Cal.App.2d 687, 72 P.2d 746, 758.
RED HANDED. With the marks of crime fresh
on him.
RED INTERNATIONAL. See Third Internation-
al.
RED LIGHTS AHEAD DOCTRINE. Under this
doctrine, third party obtaining securities is re-
quired to investigate only under exceptional cir-
cumstances which arise when a party to a transac-
tion has knowledge that some fact or facts exist
with respect to transaction which would prevent
action by commercially honest men for whom law
is made. Thomas v. Atkins, D.C.Minn., 52 F.Supp.
405, 410.
RED TAPE. In a derivative sense, order carried
to fastidious excess; system run out into trivial
extremes. Webster v. Thompson, 55 Ga. 434.
REDDENDO SINGULA SINGULIS. Lat. By re-
ferring each to each; referring each phrase or ex-
pression to its appropriate object. A rule of con-
struction.
REDDENDUM. Lat. In conveyancing. Render-
ing; yielding. The technical name of that clause
in a conveyance by which the grantor creates or
reserves some new thing to himself, out of what
he had before granted; as "rendering therefor
yearly the sum of ten shillings, or a pepper-corn,"
etc. That clause in a lease in which a rent is
reserved to the lessor, and which commences with
the word "yielding." 2 Bl.Comm. 299; Freuden-
berger Oil Co. v. Simmons, 75 W.Va. 337, 83 S.E.
995, 997, Ann.Cas.1918A, 873.
REDDENS CAUSAM SCIENTL 1E. Lat. Giving
the reason of his knowledge.
In Scotch practice. A formal phrase used in
depositions, preceding the statement of the reason
of the witness' knowledge. 2 How. State Tr. 715.
REDDERE, NIL ALIUD EST QUAM ACCEPTUM
RESTITUERE; SEU, REDDERE EST QUASI
RETRO DARE, ET REDDITUR DICITUR A RE-
DEUNDO, QUIA RETRO IT. Co. Litt. 142. To
render is nothing more than to restore that which
has been received; or, to render is as it were to
give back, and it is called "rendering" from "re-
turning," because it goes back again.
REDDIDIT SE. Lat. He has rendered himself.
In old English practice. A term applied to a
principal who had rendered himself in discharge
of his bail. Holthouse.
REDDITARIUM. In old records. A rental, or
rent-roll. Cowell.
REDDITARIUS. In old records. A renter; a
tenant. Cowell.
REDDITION. A surrendering or restoring; also
a judicial acknowledgment that the thing in de-
mand belongs to the demandant, and not to the
person surrendering. Cowell.
REDEEM. To buy back. To liberate an estate or
article from mortgage or pledge by paying the
debt for which it stood as security. To repur-
chase in a literal sense; as, to redeem one's land
from a tax-sale. Maxwell v. Foster, 67 S.C. 377,
45 S.E. 927; Miller v. Ratterman, 47 Ohio St. 141,
24 N.E. 496; Layton v. Thayne, C.C.A.Utah, 144
F.2d 94, 96. It implies the existence of a debt and
means to rid property of that incumbrance. Tal-
ley v. Eastland, 259 Ky. 241, 82 S.W.2d 368, 372.
REDEEMABLE. Subject to an obligation of re-
demption; embodying, or conditioned upon, a
promise or obligation of redemption; convertible
into coin; as, a "redeemable currency." U. S. v.
North Carolina, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed.
336. Subject to redemption; admitting of re-
demption or repurchase; given or held under
conditions admitting of reacquisition by purchase;
as, a "redeemable pledge."
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REDITUS
REDEEMABLE RIGHTS. Rights which return
to the conveyor or disposer of land, etc., upon pay-
ment of the sum for which such rights are grant-
ed. Jacob.
REDELIVERY. A yielding and delivering back
of a thing. American Brake Shoe & Foundry Co.
v. New York Rys. Co., D.C.N.Y., 293 F. 612, 623.
REDELIVERY BOND. A bond given to a sheriff
or other officer, who has attached or levied on
personal property, to obtain the release and re-
possession of the property, conditioned to redeliver
the property to the officer or pay him its value in
case the levy or attachment is adjudged good.
Drake v. Sworts, 24 Or. 198, 33 P. 563.
REDEMISE. A regranting of land demised or
leased.
REDEMPTIO OPERIS. Lat. In Roman law, a
contract for the hiring or letting of services, or
for the performance of a certain work in con-
sideration of the payment of a stipulated price.
It is the same contract as "locatio opens," but re-
garded from the standpoint of the one who is to
do the work, and who is called "redemptor open-
is," while the hirer is called "locator opens."
Mackeld. Rom. Law, § 408.
REDEMPTION. A repurchase; a buying back.
The act of a vendor of property in buying it back
again from the purchaser at the same or an en-
hanced price. Murphy v. Casselman, 24 N.D. 336,
139 N.W. 802, 803; Venner v. Public Utilities Com-
mission, 302 Ill. 232, 134 N.E. 17, 18.
The process of annulling and revoking a condi-
tional sale of property, by performance of the
conditions on which it was stipulated to be re-
vocable.
The process of cancelling and annulling a de-
feasible title to land, such as is created by a mort-
gage or a tax-sale, by paying the debt or fulfilling
the other conditions.
The liberation of an estate from a mortgage.
Webb v. Williamson, 202 Ark. 763, 152 S.W.2d
312, 314.
The liberation of a chattel from pledge or pawn,
by paying the debt for which it stood as security.
Repurchase of notes, bills, or other evidences
of debt, (particularly bank-notes and paper-mon-
ey,) by paying their value in coin to their holders.
Redemption, equity of. See Equity of Redemp-
tion.
Redemption of land tax. In English law. The
payment by the landowner of such a lump sum as
shall exempt his land from the land tax. Mozley
& Whitley.
The right of redemption. An agreement or
paction, by which the vendor reserves to him-
self the power of taking back the thing sold by
returning the price paid for it. Civil Code La.
art. 2567.
Voluntary redemption. In Scotch law, is when
a mortgagee receives the sum due into his own
hands, and discharges the mortgage, without any
consignation. Bell.
REDEMPTIONES. In old English law. Heavy
fines. Distinguished from misericordia, (which
see.)
REDEUNDO. Lat. Returning; in returning;
while returning. 2 Strange, 985.
REDEVANCE. In old French and Canadian law.
Dues payable by a tenant to his lord, not neces-
sarily in money.
REDHIBERE. Lat. In the civil law. To have
again; to have back; to cause a seller to have
again what he had before.
REDHIBITION. In the civil law. The avoid-
ance of a sale on account of some vice or defect
in the thing sold, which renders it either absolute-
ly useless or its use so inconvenient and imper-
fect that it must be supposed that the buyer would
not have purchased it had he known of the vice.
Civ.Code La. art. 2520.
REDHIBITORY ACTION. In the civil law. An
action for redhibition. An action to avoid a sale
on account of some vice or defect in the thing
sold, which renders its use impossible, or so in-
convenient and imperfect that it must be supposed
the buyer would not have purchased it had he
known of the vice. Civ. Code La. art. 2520. An
action in which buyer, alleging seller's breach of
express or implied warranty, seeks to return thing
sold or part thereof and to recover back all or
part of price paid. Hermanos v. Matos, C.C.A.
Puerto Rico, 81 F.2d 930, 931.
REDHIBITORY DEFECT or VICE. In the civil
law. A defect in an article sold, for wir:ch the
seller may be compelled to take it back; a defect
against which the seller is bound to warrant.
Poth. Cont. Sale, no. 203.
REDIMERE. Lat. In Roman law. To buy back.
Talley v. Eastland, 259 Ky. 241, 82 S.W.2d 368, 372.
REDISSEISIN. In old English law. A second
disseisin of a person of the same tenements, and
by the same disseisor, by whom he was before
disseised. 3 Bl. Comm. 188.
REDISTRIBUTION. In gambling. Pay-off to
holders of winning tickets. Delaware Steeple-
chase & Race Ass'n v. Wise, 27 A.2d 357, 361, 2
Terry (Del.) 587.
REDITUS. Lat. A revenue or return, income
or profit; specifically, rent.
REDITUS ALBI. White rent; blanche farm;
rent payable in silver or other money.
REDITUS ASSISUS. A set or standing rent.
REDITUS CAPITALES. Chief rent paid by free-
holders to go quit of all other services.
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REDITUS
REDITUS NIGRI. Black rent; black mail; rent
payable in provisions, corn, labor, etc.; as dis-
tinguished from "money rent," called "reditus al-
bi"
REDITUS QUIET!. Quitrents (q. v.).
REDITUS SICCUS. Rent seck (q. v.).
REDMANS. In feudal law. Men who, by the
tenure or custom of their lands, were to ride with
or for the lord of the manor, about his business.
Domesday.
REDOBATORES. In old English law. Those
that buy stolen cloth and turn it into some other
color or fashion that it may not be recognized.
Redubbers.
REDRAFT. In commercial law. A draft or bill
drawn in the place where the original bill was
made payable and where it went to protest, on the
place where such original bill was drawn, or, when
there is no regular commercial intercourse render-
ing that practicable, then in the next best or most
direct practicable course. 1 Bell, Comm. 406.
REDRESS. The receiving satisfaction for an in-
jury sustained.
REDUBBERS. In criminal law. Those who
bought stolen cloth and dyed it of another color
to prevent its being identified were anciently so
called. Cowell; 3 Inst. 134.
REDUCE. In Scotch law. To rescind or annul.
REDUCTIO AD ABSURDUM. Lat. In logic.
The method of disproving an argument by show-
ing that it leads to an absurd consequence.
REDUCTION. In Scotch law. An action brought
for the purpose of rescinding, annulling, or can-
celling some bond, contract, or other instrument
in writing. 1 Forb. Inst. pt. 4, pp. 158, 159.
In French law, abatement. When a parent gives
away, whether by gift inter vivos or by legacy,
more than his portion disponible, (q. v.) the donee
or legatee is required to submit to have his gift
reduced to the legal proportion.
REDUCTION EX CAPITE LECTI. By the law
of Scotland the heir in heritage was entitled to re-
duce all voluntary deeds granted to his prejudice
by his predecessor within sixty days preceding
the predecessor's death; provided the maker of
the deed, at its date, was laboring under the dis-
ease of which he died, and did not subsequently go
to kirk or market unsupported. Bell.
REDUCTION IMPROBATION. In Scotch law.
One form of the action of reduction in which
falsehood and forgery are alleged against the deed
or document sought to be set aside.
REDUCTION INTO POSSESSION. The act of
exercising the right conferred by a chose in ac-
tion, so as to convert it into a chose in possession;
thus, a debt is reduced into possession by pay-
ment. Sweet.
REDUCTION OF CAPITAL. Voluntary liquida-
tion of retired corporate capital. Jay Ronald Co.
v. Marshall Mortg. Corporation, 40 N.Y.S.2d 391,
399; 265 App.Div. 622.
REDUCTION TO POSSESSION. Conversion of a
right existing as a claim into actual custody and
enjoyment. Newell v. McLaughlin, 126 Conn. 138,
9 A.2d 815, 819.
REDUCTION TO PRACTICE. As respects prior-
ity of invention for purposes of patentability is
accomplished when inventor's conception is em-
bodied in such form as to render it capable of prac-
tical and successful use. Pyrene-Minimax Cor-
poration v. Palmer, 89 F.2d 505, 510, 67 App.D.C.
33. But device need not be perfect or commercial
success. Pierson v. Beck, Cust. & Pat.App., 40 F.
2d 769, 770.
REDUNDANCY. This is the fault of introduc-
ing superfluous matter into a legal instrument;
particularly the insertion in a pleading of matters
foreign, extraneous, and irrelevant to that which
it is intended to answer. Carpenter v. Reynolds,
58 Wis. 666, 17 N.W. 300; In re Wise's Estate, 144
Neb. 273, 13 N.W.2d 146, 151.
RE-ENACT. To enact again; to revive. Police
Jury of Caddo Parish v. City of Shreveport, 137
La. 1032, 69 So. 828, 831.
RE-ENTRY. The act of resuming the possession
of lands or tenements in pursuance of a right
which party exercising it reserved to himself when
he quit his former possession. Sokolow v. Meyer,
248 N.Y.S. 405, 409, 139 Misc. 424. Fleisher v.
Friob, 161 N.Y.S. 940, 944, 97 Misc.Rep. 343.
RE-ESTABLISH. To restore to its former posi-
tion. Baron v. Prudence Life Ins. Co., 315 Ill.
App. 129, 42 N.E.2d 137, 138.
RE-EXAMINATION. An examination of a wit-
ness after a cross-examination, upon matters
arising out of such cross-examination.
RE-EXCHANGE. The damages or expenses
caused by the dishonor and protest of a bill of
exchange in a foreign country, where it was pay-
able, and by its return to the place where it was
drawn or indorsed, and its being there taken up.
Bangor Bank v. Hook, 5 Me. 175; Simonoff v.
Granite City Nat. Bank, 279 Ill. 248, 116 N.E. 636,
639.
RE-EXTENT. In English practice. A second ex-
tent made upon lands or tenements, upon com-
plaint made that the former extent was partially
performed. Cowell.
REEF. In mining law. A vein or lode contain-
ing or supposed to contain minerals.
REEVE. An ancient English officer of justice
inferior in rank to an alderman. He was a min-
isterial officer appointed to execute process, keep
the King's peace, and put the laws in execution.
He witnessed all contracts and bargains, brought
offenders to justice and delivered them to punish-
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REFERENCE
ment, took bail for such as were to appear at the
county court, and presided at the court or foie-
mote. He was also called gerefa.
There were several kinds of reeves, as, the
shire-gerefa, shire-reeve or sheriff; the heh-ger-
efa, or high-sheriff; tithing-reeve, burghor or bor-
ough-reeve.
Land Reev€
See Land.
REFALO. A word composed of the three initial
syllables "re." "fa." "lo.," for "recordarti facias
loquelam," (q. v.). 2 Sell. Pr. 160.
REFARE. To bereave, take away, rob. Cowell.
REFECTION. In the civil law. Reparation; re-
establishment of a building. Dig. 19, 1, 6, 1.
REFER. When a case or action involves matters
of account or other intricate details which require
minute examination, and for that reason are not
fit to be brought before a jury, it is usual to refer
the whole case, or some part of it, to the decision
of an auditor or referee, and the case is then said
to be referred.
Taking this word in its strict, technical use, it relates
to a mode of determining questions which is distinguished
from "arbitration," in that the latter word imports sub-
mission of a controversy without any lawsuit having been
brought, while "reference" imports a lawsuit pending, and
an issue framed or question raised which (and not the con-
troversy itself) is sent out. Thus, arbitration is resorted
to instead of any judicial proceeding ; while reference is
one mode of decision employed in the course of a judicial
proceeding. And "reference" is distinguished from "hear-
ing or trial," in that these are the ordinary modes of
deciding issues and questions in and by the courts with aid
of juries when proper; while reference is an employment
of non-judicial persons—individuals not integral parts of
the court—for the decision of particular matters incon-
venient to be heard in actual court. Abbott.
To point, allude, direct, or make reference to.
This is the use of the word in conveyancing and
in literature, where a word or sign introduced for
the purpose of directing the reader's attention to
another place in the deed, book, document, etc.,
is said to "refer" him to such other connection.
REFEREE. In practice. A person to whom a
cause pending in a court is referred by the court,
to take testimony, hear the parties, and report
thereon to the court. Central Trust Co. of New
York v. Wabash, etc., R. Co., C.C.Mo., 32 F. 684,
685. He is an officer exercising judicial powers,
and is an arm of the court for a specific purpose.
Segal v. Jackson, 48 N.Y.S.2d 877, 879, 183 Misc.
460.
REFEREE IN BANKRUPTCY. An officer ap-
pointed by the courts of bankruptcy under the act
of 1898 (11 U.S.C.A. § 1) corresponding to the
"registers in bankruptcy" under earlier statutes
having administrative and quasi-judicial functions
under the bankruptcy law, and who assists the
court in such cases and relieves the judge of at-
tention to matters of detail or routine, by taking
charge of all administrative matters and the prep-
aration or preliminary consideration of questions
requiring judicial decision, subject at all times
to the supervision and review of the court. In re
Carl Dernburg & Son, C.C.A.N.Y., 5 F.2d 37, 38.
He is an officer of the bankruptcy court but not
a judge. Fish v. East, C.C.A.Colo., 114 F.2d 177,
200. His status is substantially that of a master
whose findings to extent adopted are considered
findings of District Court. Stewart v. Ganey, C.C.
A.Ala., 116 F.2d 1010, 1012.
REFEREES, COURT OF. In the passage of pri-
vate bills through the house of commons, the prac-
tice was adopted in 1864 of the appointment of
referees on such bills, consisting of the chairman
of ways and means and not less than three other
persons to be appointed by the speaker. The ref-
erees were formed into one or more courts, three
at least being required to constitute each court, a
member in every case being chairman, but re-
ceiving no salary. The referees inquired into the
proposed works, etc., and reported to the house.
The committees of the house on any bill might
also refer any question to the referees for their
decision. It was also ordered in 1864 that the ref-
erees should decide on all petitions as to the right
of the petitioner to be heard, i. e., his locus standi.
A court of referees was specially constituted for
the adjudication of this right, called locus standi.
A series of reports of the court of referees on
private bills in parliament, called Locus Standi
reports, has been published since 1867.
REFEREES, OFFICIAL. Officials in the King's
Bench Division of the High Court of Justice in
England, created by the judicature acts. They
are three in number. They try such questions and
actions as may be referred to them, and act as
arbitrators in certain cases.
REFERENCE. In contracts. An agreement to
submit to arbitration; the act of parties in sub-
mitting their controversy to chosen referees or
arbitrators.
In practice. The act of sending a cause pend-
ing in court to a referee for his examination and
decision. State v. Innes, 89 Kan. 168, 130 P. 677,
680; Jones v. Jones, 188 Mo.App. 220, 175 S.W.
227, 230. See Refer.
In commercial law. The act of sending or di-
recting one person to another, for information or
advice as to the character, solvency, standing, etc.,
of a third person, who desires to open business re-
lations with the first, or to obtain credit with him.
REFERENCE IN CASE OF NEED. When a per-
son draws or indorses a bill of exchange, he some-
times adds the name of a person to whom it may
be presented "in case of need;"  e., in case it is
dishonored by the original drawee or acceptor.
Byles, Bills, 261.
REFERENCE STATUTES. Statutes which refer
to other statutes and make them applicable to the
subject of legislation. Their object is to incor-
porate into the act of which they are a part the
provisions of other statutes by reference and adop-
tion. State ex rel. School Dist. of Kansas City v.
Lee, 334 Mo. 513, 66 S.W.2d 521; Van Pelt v. Hill-
iard, 75 Fla. 792, 78 So. 693, 698, L.R.A. 1918E,
639.
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REFERENCE
REFERENCE TO RECORD. Under the English
practice, when an action is commenced, an entry
of it is made in the cause-book according to the
year, the initial letter of the surname of the first
plaintiff, and the place of the action, in numerical
order among those commenced in the same year,
e. g., "1876, A. 26;" and all subsequent documents
in the action (such as pleadings and affidavits)
bear this mark, which is called the "reference to
the record." Sweet.
REFERENDARIUS. An officer by whom the or-
der of causes was laid before the Roman emperor,
the desires of petitioners made known, and an-
swers returned to them. Vicat, Voc. Jur.; Calvin.
REFERENDARY. In Saxon law. A master of
requests; an officer to whom petitions to the king
were referred. Spelman.
REFERENDO SINGULA SINGULIS. Lat. Re-
ferring individual or separate words to separate
subjects; making a distributive reference of
words in an instrument; a rule of construction.
REFERENDUM. In international law. A com-
munication sent by a diplomatic representative to
his home government, in regard to matters pre-
sented to him which he is unable or unwilling to
decide without further instructions.
In the modern constitutional law of Switzer-
land and elsewhere, a method of submitting an
important legislative measure to a direct vote of
the whole people. Pacific States Telephone &
Telegraph Co. v. Oregon, 32 S.Ct. 224, 223 U.S.
118, 56 L.Ed. 377; Kiernan v. Portland, 32 Sup.Ct.
231, 223 U.S. 151, 56 L.Ed. 386; Plebiscite; In-
itiative.  Right reserved to the people to adopt
or reject any act or measure which has been
passed by a legislative body, and which, in most
cases, would without action on the part of the
electors become a law. Whitmore v. Carr, 2 Cal.
App.2d 590, 38 P.2d 802, 803. City of Litchfield
v. Hart, 306 Ill.App. 621, 29 N.E.2d 678, 679.
REFINANCE. To finance again or anew. In
automobile parlance, signifying that notes exe-
cuted for the purchase price of an automobile
have been negotiated by the original vendor to
some corporation dealing in that character of se-
curities. American Indemnity Co. v. Allen, for
Use and Benefit of Commerce Union Bank, 176
Tenn. 134, 138 S.W.2d 445, 446.
REFINEMENT. A term sometimes employed to
describe verbiage inserted in a pleading or in-
dictment, over and above what is necessary to be
set forth; or an objection to a plea or indictment
on the ground of its failing to include such super-
fluous matter. State v. Peak, 130 N.C. 711, 41
S.E. 887.
REFORM. To correct, rectify, amend, remodel.
Instruments inter partes may be reformed, when
defective, by a court of equity. By this is meant
that the court, after ascertaining the real and ori-
ginal intention of the parties to a deed or other
instrument, (which intention they failed to suffi-
ciently express, through some error, mistake of
fact, or inadvertence,) will decree that the instru-
ment be held and construed as if it fully and tech-
nically expressed that intention. Churchill v.
Meade, 92 Or. 626, 182 P. 368, 371; Gross v. Yeskel,
100 N.J.Eq. 293, 134 A. 737.
See, also, Reformation.
It is to be observed that "reform" Is seldom, if ever,
used of the correction of defective pleadings, judgments,
decrees or other judicial proceedings ; "amend" being the
proper term for that use. Again, "amend" seems to con-
note the idea of improving that which may have been well
enough before, while "reform" might be considered as
properly applicable only to something which before was
quite worthless.
REFORM ACTS. A name bestowed on the stat-
utes 2 Wm. IV. c. 45, and 30 & 31 Viet. c. 102,
passed to amend the representation of the people
in England and Wales; which introduced extended
amendments into the system of electing members
of the house of commons.
REFORMATION. Remedy, afforded by courts of
equity to the parties, to written instruments which
import a legal obligation, to reform or rectify
such instruments whenever they fail, through
fraud or mutual mistake, to express the real
agreement or intention of the parties. Green-
field v. /Etna Cas. & Sur. Co., 75 Ohio App. 122, 61
N.E.2d 226, 229. Rubinson v. North American
Accident Ins. Co. of Chicago, Ill., 124 Neb. 269,
246 N.W. 349, 350.
See, also, Reform.
REFORMATORY. A place or institution in which
efforts are made either to cultivate the intellect
or instruct the conscience or improve the con-
duct where inmates voluntarily submit them-
selves to its instruction or discipline or are forci-
bly detained therein. McKinnon v. Second Judi-
cial District Court in and for Washoe County, 35
Nev. 494, 130 P. 465, 468.
REFORMATORY SCHOOLS. In English law.
Schools to which convicted juvenile offenders (un-
der sixteen) may be sent by order of the court
before which they are tried, if the offense be pun-
ishable with penal servitude or imprisonment, and
the sentence be to imprisonment for ten days or
more. Wharton.
REFRESHER. In English law. A further or ad-
ditional fee to counsel in a long case, which may
be, but is not necessarily, allowed on taxation.
REFRESHING THE MEMORY. The act of a
witness who consults his documents, memoranda,
or books, to bring more distinctly to his recollec-
tion the details of past events or transactions,
concerning which he is testifying.
REFUND, n. That which is refunded. United
States v. Wurts, Pa., 58 S.Ct. 637, 639, 303 U.S.
414, 82 L.Ed. 932.
REFUND, v. To repay or restore; to return mon-
ey in restitution or repayment. Rackliff v. Green-
bush, 93 Me. 99, 44 A. 375. City of Long Beach
v. Lisenby, 180 Cal. 52, 179 P. 198, 201. United
States v. Wurts, Pa., 58 S.Ct. 637, 639, 303 U.S.
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REGARD
414, 82 L.Ed. 932. To fund again or anew; spe-
cifically, finance, to borrow, usually by the sale
of bonds, in order to pay off an existing loan with
the proceeds. Street Improvement Dist. No. 315
v. Arkansas Highway Commission, 190 Ark. 1045,
83 S.W.2d 81, 82.
REFUND ANNUITY CONTRACT. A contract by
which an insurance company agrees to repay to
the annuitant, in installments during his life,
amount paid in by him to company, and if at his
death there be a balance unpaid, to pay that bal-
ance to person designated by annuitant. In re
Atkins' Estate, 129 N.J.Eq. 186, 18 A.2d 45, 49.
REFUNDING BOND. A bond which replaces or
pays off outstanding bond which holder surrend-
ers in exchange for new security. Fore v. Ala-
bama State Bridge Corporation, 242 Ala. 455, 6
So.2d 508, 512. Also a bond given to an executor
by a legatee, upon receiving payment of the leg-
acy, conditioned to refund the same, or so much
of it as may be necessary, if the assets prove de-
ficient.
REFUNDS. In the laws of the United States.
Sums of money received by the government or its
officers which, for any cause, are to be refunded
or restored to the parties paying them; such as
excessive duties or taxes, duties paid on goods
destroyed by accident, duties received on goods
which are re-exported, etc.
REFUSAL. The act of one who has, by law, a
right and power of having or doing something of
advantage, and declines it. Also, the declination
of a request or detnand, or the omission to comply
with some requirement of law, as the result of a
positive intention to disobey. In the latter sense,
the word is often coupled with "neglect," as if a
party shall "neglect or refuse" to pay a tax, file
an official bond, obey an order of court, etc. But
"neglect" signifies a mere omission of a duty,
which may happen through inattention, dilator-
iness, mistake, or inability to perform, while "re-
fusal" implies the positive denial of an applica-
tion or command, or at least a mental determina-
tion not to comply. U. S. v. Krafft, C.C.A.N.J.,
249 F. 919, 925; American Nat. Bank of Ardmore
v. National Bank of Claremore, 119 Okl. 149, 249
P. 424, 428.
An option. Hake v. Groff, 232 Mich. 233, 205
N.W. 145, 146.
REFUSE, v. To deny, decline, reject. Burns v.
Fox, 113 Ind. 206, 14 N.E. 541. Ex parte Yost,
D.C.Cal., 55 F.Supp. 768, 772.
"Fail" is distinguished from "refuse" in that "refuse"
involves an act of the will, while "fail" may be an act of
inevitable necessity. Maestas v. American Metal Co. of
New Mexico, 37 N.M. 203, 20 P.2d 924, 928.
REFUSE, n. That which is refused or rejected
as useless or worthless. Worthless matter, rub-
bish, scum, leavings. Stern Holding Co. v. O'Con-
nor, 119 N.J.L. 291, 196 A. 432, 433.
REFUTANTIA. In old records. An acquittance
or acknowledgment of renouncing all future
claim. Cowell.
REG. GEN. An abbreviation of "Regula Gen-
eralis," a general rule, (of court.)
REG. JUD. An abbreviation of "Registrum Judi-
ciale," the register of judicial writs.
REG. LIB. An abbreviation of "Registrarii Lib-
er," the register's book in chancery, containing
all decrees.
REG. ORIG. An abbreviation of "Registrum Or-
iginate," the register of original writs.
REG. PL. An abbreviation of "Regula Placitan-
di," rule of pleading.
REGAL FISH. Whales and sturgeons, so called
in English law, as belonging to the king by pre-
rogative when cast on shore or caught near the
coast. 1 Bl. Comm. 290.
REGALE. In old French law. A payment made
to the seigneur of a fief, on the election of every
bishop or other ecclesiastical feudatory, corres-
ponding with the relief paid by a lay feudatory.
Steph. Lect. 235.
REGALE EPISCOPORUM. The temporal rights
and privileges of a bishop. Cowell.
REGALIA. An abbreviation of "jura regalia,"
royal rights, or those rights which a king has by
virtue of his prerogative. Hence owners of coun-
ties palatine were formerly said to have "jura
regalia" in their counties as fully as the king in
his palace. 1 Bl. Comm. 117. The term is some-
times used in the same sense in the Spanish law.
Hart v. Burnett, 15 Cal. 566.
Some writers divide the royal prerogative into
majora and minora regalia, the former including
the regal dignity and power, the latter the rev-
enue or fiscal prerogatives of the crown. 1 Bl.
Comm. 117.
REGALIA FACERE. To do homage or fealty to
the sovereign by a bishop when he is invested with
the regalia.
REGALITY. A territorial jurisdiction in Scot-
land conferred by the crown. The lands were said
to be given in liberam regalitatem, and the per-
sons receiving the right were termed "lords of
regality." Bell.
REGARD. In old English law. Inspection; su-
pervision. Also a reward, fee, or perquisite.
REGARD, COURT OF. In forest law. A tribunal
held every third year, for the lawing or expedi-
tation of dogs, to prevent them from chasing deer.
Cowell.
REGARD OF THE FOREST. In old English law.
The oversight or inspection of it, or the office and
province of the regarder, who is to go through the
whole forest, and every bailiwick in it, before
the holding of the sessions of the forest, or justice-
seat, to see and inquire after trespassers, and for
the survey of dogs. Manwood.
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REGARDANT
REGARDANT. A term which was applied, in
feudal law, to a villein annexed to a manor, and
having charge to do all base services within the
same, and to see the same freed from all things
that might annoy his lord. Such a villein re-
gardant was thus opposed to a villein en gros,
who was transferable by deed from one owner to
another. Cowell; 2 Bl. Comm. 93.
REGARDER OF A FOREST. An ancient officer
of the forest, whose duty it was to take a view
of the forest hunts, and to inquire concerning
trespasses, offenses, etc. Manwood.
REGE INCONSULTO. Lat. In English law. A
writ issued from the sovereign to the judges, not
to proceed in a cause which may prejudice the
crown, until advised. Jenk. Cent. 97.
REGENCY. Rule; government; kingship. The
man or body of men intrusted with the vicarious
government of a kingdom during the minority,
absence, insanity, or other disability of the king.
REGENT. A governor or ruler. One who vicar-
iously administers the government of a kingdom,
in the name of the king, during the latter's min-
ority or other disability.
A master, governor, director, or superintendent
of a public institution, particularly a college or
university.
In the canon law, it signifies a master or pro-
fessor of a college. Dict. du Dr. Can.
REGIA DIGNITAS EST INDIVISIBILIS, ET
QUIELIBET ALIA DERIVATIVA DIGNITAS
EST SIMILITER INDIVISIBILIS. 4 Inst. 243.
The kingly power is indivisible, and every other
derivative power is similarly indivisible.
REGIA VIA. Lat. In old English law. The roy-
al way; the king's highway. Co. Litt. 56a.
REGIAM MAJESTATEM. A collection of the an-
cient laws of Scotland. It is said to have been
compiled by order of David I., king of Scotland,
who reigned from A. D. 1124 to 1153. Hale, Com.
Law, 271.
REGICIDE. The murder of a sovereign; also
the person who commits such murder.
REGIDOR. In Spanish law. One of a body, nev-
er exceeding twelve, who formed a part of the
ayuntamiento. The office of regidor was held
for life; that is to say, during the pleasure of
the supreme authority. In most places the office
was purchased; in some cities, however, they
were elected by persons of the district, called
"capitulares." 12 Pet. 442, note.
REGIME. In French law. A system of rules or
regulations.
REGIME DOTAL. The dot, being the property
which the wife brings to the husband as her con-
tribution to the support of the burdens of the
marriage, and which may either extend as well to
future as to present property, or be expressly con-
fined to the present property of the wife, is sub-
ject to certain regulations which are summarized
in the phrase "regime dotal." The husband has
the entire administration during the marriage;
but, as a rule, where the dot consists of immova-
bles, neither the husband nor the wife, nor both of
them together, can either sell or mortgage it.
The dot is returnable upon the dissolution of the
marriage, whether by death or otherwise. Brown.
REGIME EN COMMUNAUTE. The community
of interests between husband and wife which aris-
es upon their marriage. It is either (1) legal or
(2) conventional, the former existing in the ab-
sence of any "agreement" properly so called, and
arising from a mere declaration of community;
the latter arising from an "agreement," prop-
erly so called. Brown.
REGIMIENTO. In Spanish law. The body of
regidores, who never exceeded twelve, forming a
part of the municipal council, or ayuntamiento,
in every capital of a jurisdiction. 12 Pet. 442, note.
REGINA. Lat. The queen.
REGIO ASSENSU. A writ whereby the sover-
eign gives his assent to the election of a bishop.
Reg. Orig. 294.
REGISTER, v. To record formally and exactly;
to enroll; to enter precisely in a list or the like.
Los Angeles County v. Craig, 38 Cal.App.2d 58,
100 P.2d 818, 820. To make correspond exactly
one with another; to fit correctly in a relative
position; to be in correct alignment one with an-
other. Cover v. Schwartz, Cust. & Pat. App., 28
C.C.P.A. 831, 116 F.2d 512, 515.
REGISTER, n. An officer authorized by law to
keep a record called a "register" or "registry;"
as the register for the probate of wills.
A book containing a record of facts as they oc-
cur, kept by public authority; a register of births,
marriages, and burials.
REGISTER IN BANKRUPTCY. An officer of the
courts of bankruptcy, under the earlier acts of
congress in that behalf, having substantially the
same powers and duties as the "referees in bank-
ruptcy" under the act of 1898 (11 U.S.C.A.). See
Referee.
REGISTER OF DEEDS. The name given in some
states to the officer whose duty is to record deeds,
mortgages, and other instruments affecting realty
in the official books provided and kept for that
purpose; more commonly called "recorder of
deeds."
REGISTER OF LAND OFFICE. A federal officer
appointed for each federal land district, to take
charge of the local records and attend to the pre-
liminary matters connected with the sale, pre-
emption, or other disposal of the public lands
within the district. Rev.St.U.S. § 2234 (43 U.S.C.
A. § 72).
REGISTER OF PATENTS. A book of patents, di-
rected by St. 15 & 16 Vict. c. 83, § 34, passed in
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REGISTRATION
1852, to be kept at the specification office, for pub-
lic use. 2 Steph. Comm. 29, note t.
REGISTER OF SHIPS. A register kept by the
collectors of customs, in which the names, owner-
ship, and other facts relative to merchant vessels
are required by law to be entered. This register
is evidence of the nationality and privileges of an
American ship. The certificate of such registra-
tion, given by the collector to the owner or master
of the ship, is also called the ship's register. Ra-
palje & Lawrence.
REGISTER OF THE TREASURY. An officer of
the United States treasury, whose duty is to keep
all accounts of the receipt and expenditure of
public money and of debts due to or from the
United States, to preserve adjusted accounts with
vouchers and certificates, to record warrants
drawn upon the treasury, to sign and issue gov-
ernment securities, and take charge of the reg-
istry of vessels under United States laws. Rev.
St.U.S. § 312 (31 U.S.C.A. § 161) and section 313.
REGISTER OF WILLS. An officer in some of the
states, whose function is to record and preserve
all wills admitted to probate, to issue letters tes-
tamentary or of administration, to receive and
file accounts of executors, etc., and generally to
act as the clerk of the probate court.
REGISTER OF WRITS. A book preserved in the
English court of chancery, in which were entered
the various forms of original and judicial writs.
REGISTERED. Entered or recorded in some of-
ficial register dr record or list. State v. McGuire,
183 Iowa 927, 167 N.W. 592, 594.
REGISTERED BOND. The bonds of the United
States government (and of many municipal and
private corporations) are either registered or
"coupon bonds." In the case of a registered bond,
the name of the owner or lawful holder is enter-
ed in a register or record, and it is not negotiable
or transferable except by an entry on the register,
and checks or warrants are sent to the registered
holder for the successive installments of interest
as they fall due. A bond with interest coupons
attached is transferable by mere delivery, and the
coupons are payable, as due, to the person who
shall present them for payment. But the bond
issues of many private corporations now provide
that the individual bonds "may be registered as
to principal," leaving the interest coupons payable
to bearer, or that they may be registered as to
both principal and interest, at the option of the
holder. Benwell v. New York, 55 N.J.Eq. 260, 36
A. 668; Novoprutsky v. Morris Plan Co. of Phila-
delphia, 319 Pa. 97, 179 A. 218, 219, 98 A.L.R. 1486.
REGISTERED TONNAGE. The registered ton-
nage of a vessel is the capacity or cubical contents
of the ship, or the amount of weight which she
will carry, as ascertained in some proper manner
and entered on an official register or record. See
Reck v. Phcenix Ins. Co., 54 Hun 637, 7 N.Y.S.
492; Wheaton v. Weston, D.C.Pa., 128 F. 153.
REGISTERED TRADE—MARK. A trade-mark
filed in the United States patent office, with the
necessary description and other statements re-
quired by the act of congress, and there duly re-
corded, securing its exclusive use to the person
causing it to be registered. 15 U.S.C.A. § 1051.
REGISTERED VOTERS. In Virginia, this term
refers to the persons whose names are placed up-
on the registration books provided by law as the
sole record or memorial of the duly qualified vot-
ers of the state. Chalmers v. Funk, 76 Va. 719.
REGISTER'S COURT. In American law. A
court in the state of Pennsylvania which has ju-
risdiction in matters of probate.
REGISTRANT. One who registers; particularly,
one who registers anything (e. g., a trade-mark)
for the purpose of securing a right or privilege
granted by law on condition of such registration.
REGISTRAR. An officer who has the custody or
keeping of a registry or register. This word is
used in England; "register" is more common in
America.
REGISTRAR GENERAL. In English law. An
officer appointed by the crown under the great
seal, to whom, subject to such regulations as shall
be made by a principal secretary of state, the gen-
eral superintendence of the whole system of reg-
istration of births, deaths, and marriages is in-
trusted. 3 Steph.Comm. 234.
REGISTRAR'S LICENSE. In English law, a li-
cense issued by an officer of that name authoriz-
ing the solemnization of a marriage without the
use of the religious ceremony ordained by the
Church of England.
REGISTRARIUS. In old English law. A notary;
a registrar or register.
REGISTRATION. Recording; inserting in an of-
ficial register; enrollment, as registration of vot-
ers; the act of making a list, catalogue, schedule,
or register, particularly of an official character,
or of making entries therein. In re Supervisors
of Election, C.C.Del., 1 F. 1.
Any schedule containing a list of voters, the
being upon which constitutes a prerequisite to
vote.
A method of proof prescribed for ascertaining the elec-
tors who shall qualify to cast their votes and being a part
of the machinery of elections and safeguards against
frauds. O'Brien v. City of Saratoga Springs, 228 N.Y.S.
82, 83, 137 Misc. 728.
A special registration as distinguished from a "general
registration" is one designed for a particular election
which becomes functus officio when that election has been
had. A general registration is one made up under general
rules. Cowart v. City of Waycross, 159 Ga. 589, 126 S.E.
476, 479.
REGISTRATION OF STOCK. In the practice of
corporations. Recording in the official books of
the company of the name and address of the hold-
er of each certificate of stock, with the date of
its issue, and, in the case of a transfer of stock
from one holder to another, the names of both
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REGISTRUM
parties and such other details as will identify the
transaction and preserve a memorial or official
record of its essential facts. Fisher v. Jones, 82
Ala. 117, 3 So. 13.
REGISTRUM BREVIUM. The register of writs
( q. v.).
REGISTRY. A register, or book authorized or
recognized by law, kept for the recording or reg-
istration of facts or documents. The act of re-
cording or writing in the register or depositing in
the place of public records. Schneidau v. New
Orleans Land Co., 132 La. 264, 61 So. 225, 232.
In commercial law. The registration of a ves-
sel at the custom-house, for the purpose of enti-
tling her to the full privileges of a British or
American built vessel. 3 Kent, Comm. 139; Abb.
Shipp. 58-96.
REGISTRY OF DEEDS. The system or organ-
ized mode of keeping a public record of deeds,
mortgages, and other instruments affecting title
to real property. Castillero v. U. S., 2 Black, 109,
17 L.Ed. 360.
REGIUS PROFESSOR. A royal professor or
reader of lectures founded in the English univer-
sities by the king. Henry VIII. founded in each
of the universities five professorships, viz., of di-
vinity, Greek, Hebrew, law, and physic. Cowell.
REGLAMENTO. In Spanish colonial law. A.
written instruction given by a competent author-
ity, without the observance of any peculiar form.
Schm. Civil Law, Introd. 93, note.
REGNAL YEARS. Statutes of the British parlia-
ment are usually cited by the name and year of
the sovereign in whose reign they were enacted,
and the successive years of the reign of any king
or queen are denominated the "regnal years."
REGNANT. One having authority as a king;
one in the exercise of royal authority.
REGNI POPULI. A name given to the people of
Surrey and Sussex, and on the sea-coasts of Hamp-
shire. Blount.
REGNUM ECCLESIASTICUM. The ecclesiastical
kingdom. 2 Hale, P.C. 324.
REGNUM NON EST DIVISIBILE. Co.Litt. 165.
The kingdom is not divisible.
REGRANT. In the English law of real property,
when, after a person has made a grant, the prop-
erty granted comes back to him, (e. g., by escheat
or forfeiture,) and he grants it again, he is said
to regrant it. The phrase is chiefly used in the
law of copyholds.
REGRATING. In old English law. The offense
of buying or getting into one's hands at a fair
or market any provisions, corn, or other dead vic-
tual, with the intention of selling the same again
in the same fair or market, or in some other with-
in four miles thereof, at a higher price. The of-
fender was termed a "regrator." 3 Inst. 195.
See Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37
S.E. 485, 81 Am.St.Rep. 28.
REGRESS. Used principally in the phrase "free
entry, egress, and regress" but it is also used to
signify the reentry of a person who has been dis-
seised of land. Co.Litt. 318b.
REGULA. Lat. In practice. A rule. Regula
generalis, a general rule; a standing rule or or-
der of a court. Frequently abbreviated "Reg.
Gen."
REGULA CATONIANA. In Roman law. The
rule of Cato. A rule respecting the validity of
dispositions by will. See Dig. 34, 7.
REGULA EST, JURIS QUIDEM IGNORANTIAM
CUIQUE NOCERE, FACTI VERO IGNORAN-
TIAM NON NOCERE. Cod. 1, 18, 10. It is a
rule, that every one is prejudiced by his ignorance
of law, but not by his ignorance of fact.
REGULA PRO LEGE, SI DEFICIT LEX. In de-
fault of the law, the maxim rules.
REGUL1E GENERALES. Lat. General rules,
which the courts promulgate from time to time
for the regulation of their practice.
REGULAR. Conformable to law. Steady or uni-
form in course, practice, or occurrence; not sub-
ject to unexplained or irrational variation. Roo-
ney v. City of Omaha, 104 Neb. 260, 177 N.W. 166,
167. Made according to rule, duly authorized,
formed after uniform type, built or arranged ac-
cording to established plan, law, or principle.
Merchants' Nat. Bank of Los Angeles v. Con-
tinental Nat. Bank of Los Angeles, 98 Cal.App.
523, 277 P. 354, 361. Antonym of "casual" or "oc-
casional."  Palle v. Industrial Commission, 79
Utah 47, 7 P.2d 284, 290, 81 A.L.R. 1222.
As to regular "Clergy," "Deposit," "Election,"
"Indorsement," "Meeting," "Navigation," "Pro-
cess," "Session," and "Term," see those titles.
REGULAR AND ESTABLISHED PLACE OF
BUSINESS. Under Judicial Code, § 48 (28 U.S.C.
A. §§ 1400, 1694), permitting patent infringement
suits to be brought in the district in which defend-
ant committed acts of infringement and has a reg-
ular and established place of business, a "regu-
lar" place of business is one where business is
carried on regularly, and not temporarily, or for
some special work or particular transaction, while
an "established" place of business must be a per-
manent place of business, and a "regular and es-
tablished place of business" is one where the same
business in kind, if not in degree, as that done
at the home office or principal place of business,
is carried on. Winterbottom v. Casey, D.C.Mich.,
283 F. 518, 521; Candas v. Agnini, D.C.N.Y., 14 F.
Supp. 21, 22.
A foreign corporation may have a "regular and estab-
lished place of business" although business therein is mere-
ly securing orders and forwarding them to the home office.
Shelton v. Schwartz, C.C.A.I11., 131 F.2d 805, 808.
REGULAR ARMY. Professional permanent sol-
diery, those who have chosen the military service
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REHABILITATION
as a career as distinguished from "militiamen".
State ex rel. McGaughey v. Grayston, 349 Mo. 700,
163 S.W.2d 335, 340. In another sense. An army
which is comprised of soldiers properly organized
as legitimate combatants engaged in war, com-
manded by a person responsible for his subordi-
nates, having a fixed distinctive emblem, carry-
ing arms openly, and conducting their operations
in conformance with the laws and customs of
war. Case v. Olson, 234 Iowa 869, 14 N.W.2d 717,
720.
REGULAR COURSE OF BUSINESS. This phrase
within Compensation Acts excluding from their
benefits person whose employment is not in regu-
lar course of business of employer, refers to ha-
bitual or regular occupation that party is engag-
ed in with view of winning livelihood or some
gain, excluding incidental or occasional operations
arising out of transaction of that business; to
normal operations which constitute business.
Sgattone v. Mulholland & Gotwals, 290 Pa. 341,
138 A. 855, 857, 58 A.L.R. 1463; Passarelli v.
Monacelli, 121 Pa.Super. 32, 183 A. 65, 67.
REGULAR ON ITS FACE. Process is "regular
on its face" when it proceeds from a court, offi-
cer, or body having authority of law to issue pro-
cess of that nature, and is legal in form and con-
tains nothing to notify or fairly apprise any one
that it is issued without authority. Pankewicz v.
Jess, 27 Cal.App. 340, 149 P. 997, 998. See, also,
Allen v. Cooling, 161 Minn. 10, 200 N.W. 849, 851
(promissory note).
REGULAR RATE. At which employee is em-
ployed, within Fair Labor Standards Act, means
actual hourly rate of pay of employee computed
by dividing his actual weekly wage by number of
hours customarily worked. Missel .v. Overnight
Motor Transp. Co., D.C.Md., 40 F.Supp. 174, 180,
183.
REGULARITER NON VALET PACTUM DE RE
MEA NON ALIENANDA. Co. Litt. 223. It is a
rule that a compact not to alienate my property
is not binding.
REGULARLY. At fixed and certain intervals,
regular in point of time. Lamb v. Board of Au-
ditors of Wayne County, 235 Mich. 95, 209 N.W.
195, 196. In accordance with some consistent or
periodical rule or practice. Green v. Benedict,
102 Conn. 1, 128 A. 20, 21.
REGULARS. Those who profess and follow a
certain rule of life, (regula,) belong to a religious
order, and observe the three approved vows of
property, chastity, and obedience. Wharton.
REGULATE. To fix, establish, or control; to ad-
just by rule, method, or established mode; to di-
rect by rule or restriction; to subject to govern-
ing principles or laws. In re Siracusa, 212 N.Y.S.
400, 403, 125 Misc. 882; Southern R. Co. v. Russell,
133 Va. 292, 112 S.E. 700, 703.
The power of Congress to regulate commerce is the pow-
er to enact all appropriate legislation for its protection or
advancement; to adopt measures to promote its growth
and insure its safety; to foster, protect, control, and re-
strain. Virginian Ry. Co. v. System Federation No. 40,
Railway Employees Department of American Federation of
Labor, C.C.A.Va., 84 F.2d 641, 650. It is also power to pre-
scribe rule by which commerce is to be governed, and em-
braces prohibitory regulations. United States v. Darby,
U.S.Ga., 61 S.Ct. 451, 456, 312 U.S. 100, 657, 85 L. Ed. 609,
132 A.L.R. 1430.
REGULATION. The act of regulating; a rule
or order prescribed for management or govern-
ment; a regulating principle; a precept. Curless
v. Watson, 180 Ind. 86, 102 N.E. 497, 499. Rule of
order prescribed by superior or competent author-
ity relating to action of those under its control.
State v. Miller, 33 N.M. 116, 263 P. 510, 513.
REGULATION CHARGE. Charge exacted for
privilege or as condition precedent to carrying on
business. Duff v. Garden City, 122 Kan. 390, 251
P. 1091, 1092.
REGULATION OF AN EXECUTIVE DEPART-
MENT. The general rules relating to the sub-
ject on which a department acts, made by the
head of the department under some act of Con-
gress conferring power to make such regulations,
and thereby give to them the force of law. State
ex rel. Kaser v. Leonard, 164 Or. 579, 102 P.2d 197,
202, 129 A.L.R. 1125.
REGULUS. Lat. In Saxon law. A title some-
times given to the earl or comes, in old charters.
Spelman.
REHABERE FACIAS SEISINAM. When a sher-
iff in the "habere facias seisinam" had delivered
seisin of more than he ought, this judicial writ
lay to make him restore seisin of the excess.
Reg. Jud. 13, 51, 54.
REHABILITATE. To invest or clothe again with
some right, authority, or dignity; to restore to a
former capacity; to reinstate, to qualify again.
In re Coleman, D.C.Ky., 21 F.Supp, 923, 924, 925.
In Scotch and French criminal law. To rein-
state a criminal in his personal rights which he
has lost by a judicial sentence. Brande.
REHABILITATION. Investing or clothing again
with some right, authority, or dignity; restoring
to a former capacity; reinstating; qualifying
again. In re Coleman, D.C.Ky., 21 F.Supp. 923,
924, 925.
French and Scotch criminal law. The reinstate-
ment of a criminal in his personal rights which
he has lost by a judicial sentence. Brande.
Of Corporation
Attempt to conserve and administer assets of
insolvent corporation in hope of its eventual re-
turn from financial stress to solvency. In re
Title & Mortgage Guarantee Co. of Buffalo, 274
N.Y.S. 270, 152 Misc. 428. And contemplates con-
tinuance of corporate life and activities, and its
effort to restore and reinstate corporation to form-
er condition of successful operation and solvency.
New York Title & Mortgage Co. v. Friedman, 276
N.Y.S. 72, 153 Misc. 697.
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REHABILITATION
Old English Law
A papal bull or brief for re-enabling a spiritual
person to exercise his function, who was formerly
disabled; or a restoring to a former ability.
Cowell.
REHEARING. Second consideration of cause for
sole purpose of calling to court's attention any
error, omission, or oversight in first consideration.
Lake v. State, 100 Fla. 373, 129 So. 827, 829. A re-
trial of issues and presumes notice to parties en-
titled thereto and opportunity for them to be
heard. Yee v. State Board of Equalization of
California, 16 Cal.App.2d 417, 60 P.2d 322, 323.
REI INTERVENTUS. Lat. Things intervening;
that is, things done by one of the parties to a
contract, in the faith of its validity, and with the
assent of the other party, and which have so af-
fected his situation that the other will not be al-
lowed to repudiate his obligation, although orig-
inally it was imperfect. 1 Bell, Comm. 328, 329.
REI TURPIS NULLUM MANDATUM EST. The
mandate of an immoral thing is void. Dig. 17, 1,
6, 3. A contract of mandate requiring an illegal
or immoral act to be done has no legal obliga-
tion. Story, Bailm. § 158.
REIF. A robbery. Cowell.
REIMBURSE. To pay back, to make restoration,
to repay that expended; to indemnify, or make
whole. Los Angeles County v. Frisbie, 19 Ca1.2d
634, 122 P.2d 526; Askay v. Maloney, 92 Or. 566,
179 P. 899, 901.
REINSTATE. To reinstall; to reestablish; to
place again in a former state, condition, or office;
to restore to a state or position from which the
object or person had been removed. Collins v.
U. S., 15 Ct.C1. 22; Lowry v. /Etna Life Ins. Co.,
Tex.Civ.App., 120 S.W.2d 505, 507.
To reinstate a policy holder or one who has allowed his
policy to lapse does not mean new insurance or taking out
a new policy, but does mean that the insured has been
restored to all the benefits accruing to him under the poli-
cy contract, the original policy. Missouri State Life Ins.
Co. v. Jensen, 139 Okl. 130, 281 P. 561, 562.
REINSTATE A CASE. To place case again in
same position as before dismissal. United States
v. Green, C.C.A.Mont., 107 F.2d 19, 22.
REINSURANCE. A contract by which an insurer
procures a third person to insure him against
loss or liability by reason of original insurance.
A contract that one insurer makes with another
to protect the latter from a risk already assumed.
Vial v. Norwich Union Fire Ins. Society of Nor-
wich, England, 257 Ill. 355, .100 N.E. 929, 930, 44
L.R.A.,N.S., 317, Ann.Cas.1914A, 1141. It binds
the reinsurer to pay to the reinsured the whole
loss sustained in respect to the subject of the
insurance to the extent to which he is reinsured.
Sofia Bros. v. General Reinsurance Corporation,
274 N.Y.S. 565, 153 Misc. 6. Also the substitution,
with the consent of the insured, of a second in-
surer for the first, so that the original insurer is
released. People v. American Cent. Ins. Co., 179
Mich. 371, 146 N.W. 235, 236.
RELPUBLIC1E INTEREST VOLUNTATES DE-
FUNCTORUM EFFECTUM SORTIRI. It con-
cerns the state that the wills of the dead should
have their effect.
REISSUABLE NOTES. Bank-notes which, after
having been once paid, may again be put into
circulation.
REJOIN. In pleading. To answer a plaintiffs
replication in an action at law, by some matter
of fact.
REJOINDER. In common-law pleading. The sec-
ond pleading on the part of the defendant, being
his answer to the plaintiff's replication.
REJOINING GRATIS. Rejoining voluntarily, or
without being required to do so by a rule to re-
join. When a defendant was under terms to re-
join gratis, he had to deliver a rejoinder, without
putting the plaintiff to the necessity and expense
of obtaining a rule to rejoin. 10 Mees. & W. 12;
Lush, Pr. 396; Brown.
RELATE. To stand in some relation; to have
bearing or concern; to pertain; refer; to bring
into association with or connection with; with
"to." City of Mitchell v. Western Public Service
Co., 124 Neb. 248, 246 N.W. 484, 486; Siano v. Hel-
vering, D.C.N.J., 13 F.Supp. 776, 780.
RELATED. Standing in relation; connected; al-
lied; akin. Nowland Realty Co. v. Commissioner
of Internal Revenue, C.C.A.7, 47 F.2d 1018, 1021.
RELATIO EST FICTIO JURIS ET INTENTA AD
UNUM. Relation is a fiction of law, and intended
for one thing. 3 Coke, 28.
RELATIO SEMPER FIAT UT VALEAT DISPOS-
ITIO. Reference should always be had in such
a manner that a disposition in a will may avail.
6 Coke, 76.
RELATION. A relative or kinsman; a person
connected by consanguinity. In re Spier's Estate,
224 Mich. 658, 195 N.W. 430, 431; McMenamy v.
Kampelmann, 273 Mo. 450, 200 S.W. 1075, 1077.
See, also, Relative.
The words "relatives" and "relations," in their primary
sense, are broad enough to include any one connected by
blood or affinity, even to the remotest degree, but where
used in wills, as defining and determining legar succession,
are construed to include only those persons who are enti-
tled to share in the estate as next of kin under the statute
of distributions. In re Trickett's Estate, 197 Cal. 20, 239
P. 406, 409; Wooten's Trustee v. Hardy, 221 Ky. 338, 298
S.W. 963, 967.
The connection of two persons, or their situation with
respect to each other, who are associated, whether by the
law, by their own agreement, or by kinship, in some social
status or union for the purposes of domestic life; as the
relation of guardian and ward, husband and wife, master
and servant, parent and child; so in the phrase "domestic
relations."
The doctrine of "relation" is that principle by which an
act done at one time is considered by a fiction of law to
have been done at some antecedent period. It is usually
applied where several proceedings are essential to com-
plete a particular transaction, such as a conveyance or
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deed. The last proceeding which consummates. the con-
veyance is held for certain purposes to take effect by rela-
tion as of the day when the first proceeding was had.
Knapp v. AlOcander-Edgar Lumber Co., 237 U.S. 162, 35
S.Ct. 515, 517, 59 L.Ed. 894. And see U. S. v. Anderson, 194
U.S. 394, 24 S.Ct. 716, 48 L.Ed. 1035.
A recital, account, narrative of facts; informa-
tion given. Thus, suits by quo warranto are en-
titled "on the relation of" a private person, who
is called the "relator." But in this connection the
word seems also to involve the idea of the sug-
gestion, instigation, or instance of the relator.
In the civil law, the report of the facts and law
in a pending case, made by the judges to the em-
peror, for the purpose of obtaining his opinion
on the questions of law involved, in the form of an
imperial rescript. This proceeding might be re-
sorted to in cases where no law seemed applicable,
or where there were great difficulties in its inter-
pretation, until it was abolished by Justinian.
Nov. 125.
RELATION NEVER DEFEATS COLLATERAL
ACTS. 18 Vin.Abr. 292.
RELATION SHALL NEVER MAKE GOOD A
VOID GRANT OR DEVISE OF THE PARTY. 18
Vin.Abr. 292.
RELATIONS. A term which, in its widest sense,
includes all the kindred of the person spoken of.
2 Jarm. Wills, 661.
RELATIVE. A kinsman; a person connected
with another by blood or affinity.
When used generically, includes persons connected by ties
of affinity as well as consanguinity, and, when used with a
restrictive meaning, refers to those only who are connected
by blood. Appeal of Schutte, 90 Conn. 529, 97 A. 906, 907.
A person or thing having relation or connection
with some other person or thing; as, relative
rights, relative powers, infra. See also, Relation.
RELATIVE CONFESSION. See Confession.
RELATIVE FACT. In the law of evidence. A
fact having relation to another fact; a minor fact;
a circumstance.
RELATIVE POWERS. Those which relate to
land; so called to distinguish them from those
which are collateral to it.
RELATIVE RIGHTS. Those rights of persons
which are incident to them as members of so-
ciety, and standing in various relations to each
other. 1 Bl.Comm. 123. Those rights of persons
in private life which arise from the civil and do-
mestic relations. 2 Kent, Comm. 1.
RELATIVE WORDS REFER TO THE NEXT
ANTECEDENT, UNLESS THE SENSE BE
THEREBY IMPAIRED. Noy, Max. 4; Wing.
Max. 19; Broom, Max. 606; Jenk. Cent. 180.
RELATIVORUM, COGNITO UNO, COGNOSCI-
TUR ET ALTERUM. Cro. Jac. 539. Of relatives,
one being known, the other is also known.
RELATOR. An informer; the person upon
whose complaint, or at whose instance certain
writs are issued such as information or writ of
quo warranto, and who is quasi the plaintiff in
the proceeding. State ex inf. Barker v. Duncan,
265 Mo. 26, 175 S.W. 940, 942, Ann.Cas.1916D, 1.
RELATRIX. In practice. A female relator or pe-
titioner.
RELAXARE. In old conveyancing. To release.
Relaxavi, relaxasse, have released. Litt. § 445.
RELAXATIO. In old conveyancing. A release;
an instrument by which a person relinquishes to
another his right in anything.
RELAXATION. In old Scotch practice. Letters
passing the signet by which a debtor was relaxed
[released] from the horn; that is, from personal
diligence. Bell.
RELEASE, v. To lease again or grant new lease.
Aaron v. Woodcock, 283 Pa. 33, 128 A. 665, 666, 38
A.L.R. 1251. See Accord and Satisfaction.
RELEASE, n. The relinquishment, concession,
or giving up of a right, claim, or privilege, by the
person in whom it exists or to whom it accrues, to
the person against whom it might have been de-
manded or enforced. Miller v. Estabrook, C.C.A.
W.Va., 273 F. 143, 148; Coopey v. Keady, 73 Or.
66, 144 P. 99, 101.
In this sense it is a contract and must be supported by
lawful and valuable consideration. Hamilton v. Edmund-
son, 235 Ala. 97, 177 So. 743, 746.
A discharge of a debt by act of party, as distinguished
from an extinguishment which is a discharge by operation
of law, and, in distinguishing release from receipt, "re-
ceipt" is evidence that an obligation has been discharged,
but "release" is itself a discharge of it. Glickman v. Wes-
ton, 140 Or. 117, 11 P.2d 281, 284.
An express release is one directly made in terms by deed
or other suitable means. An implied release is one which
arises from acts of the creditor or owner, without any ex-
press agreement. Pothier, Obl. nn. .608, 609. A release bfj
operation of law is one which, though not expressly made,
the law presumes in consequence of some act of the re;
leasor ; for instance, when one of several joint obligors is
expressly released, the others are also released by opera-
tion of law. 3 Salk. 298; Rowley v. Stoddard, 7 Johns.,
N.Y., 207.
Liberation, discharge, or setting free from re-
straint or confinement. Thus, a man unlawfully
imprisoned may obtain his release on habeas cor-
pus. Parker v. U. S., 22 Ct.C1. 100.
The abandonment to (or by) a person called
as a witness in a suit of his interest in the sub-
ject-matter of the controversy, in order to qualify
him to testify, under the common-law rule.
A receipt or certificate given by a ward to the
guardian, on the final settlement of the latter's
accounts, or by any other beneficiary on the ter-
mination of the trust administration, relinquish-
ing all and any further rights, claims, or demands,
growing out of the trust or incident to it.
In admiralty actions, when a ship, cargo, or
other property has been arrested, the owner may
obtain its release by giving bail, or paying the
value of the property into court. Upon this be-
ing done he obtains a release, which is a kind of
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RELEASE
writ under the seal of the court, addressed to the
marshal, commanding him to release the nronerty.
Sweet.
Estates
The conveyance of a man's interest or right
which he hath unto a thing to another that hath
the possession thereof or some estate therein.
Shep. Touch. 320. The relinquishment of some
right or benefit to a person who has already some
interest in the tenement, and such interest as qual-
ifies him for receiving or availing himself of the
right or benefit so relinquished. Burt. Real Prop.
12; Field v. Columbet, 9 Fed.Cas. 13; Baker v.
Woodward, 12 Or. 3, 6 P. 173.
A conveyance of an ulterior interest in lands
or tenements to a particular tenant, or of an un-
divided share to a co-tenant, (the releasee being in
either case in privity of estate with the releasor,)
or of the right, to a person wrongfully in posses-
sion. 1 Steph.Comm. 479.
Deed of release. A deed operating by way of
release; but more specifically, in those states
where deeds of trust are in use instead of com-
mon-law mortgages, as a means of pledging real
property as security for the payment of a debt, a
"deed of release" is a conveyance in fee, execut-
ed by the trustee or trustees, to the grantor in the
deed of trust, which conveys back to him the legal
title to the estate, and which is to be given on sat-
isfactory proof that he has paid the secured debt
in full or otherwise complied with the terms of
the deed of trust.
Release by way of enlarging an estate. A con-
veyance of the ulterior interest in lands to the
particular tenant; as, if there be tenant for life
or years, remainder to another in fee, and he in
remainder releases all his right to the particular
tenant and his heirs, this gives him the estate in
fee 1 Steph.Comm. 480; 2 Bl.Comm. 324.
Release by way of entry and feoffment. As if
there be two joint disseisors, and the disseisee
releases to one of them, he shall be sole seised,
and shall keep out his former companion; which
is the same in effect as if the disseisee had entered
and thereby put an end to the disseisin, and after-
wards had enfeoffed one of the disseisors in fee.
2 Bl.Comm. 325.
Release by way of extinguishment. As if my
tenant for life makes a lease to A. for life, re-
mainder to B. and his heirs, and I release to A.,
this extinguishes my right to the reversion, and
shall inure to the advantage of B.'s remainder, as
well as of A.'s particular estate. 2 Bl.Comm. 325.
Release by way of passing a right. As if a man
be disseised and releaseth to his disseisor all his
right, hereby the disseisor acquires a new right,
which changes the quality of his estate, and ren-
ders that lawful which before was tortious or
wrongful. 2 Bl.Comm. 325.
Release by way of passing an estate. As, where
one of two coparceners releases all her right to
the other, this passes the fee-simple of the whole.
2 Bl.Comm. 324, 325.
Release of dower. The relinquishment by a
married woman of her expectant dower interest
or estate in a particular parcel of realty belonging
to her husband, as, by joining with him in a con-
veyance of it to a third person.
Release to uses. The conveyance by a deed of
release to one party to the use of another is so
termed. Thus, when a conveyance of lands was
effected, by those instruments of assurance term-
ed a lease and release, from A. to B. and his heirs,
to the use of C. and his heirs, in such case C. at
once took the whole fee-simple in such lands; B.
by the operation of the statute of uses, being made
a mere conduit-pipe for conveying the estate to
C. Brown.
RELEASEE. The person to whom a release is
made.
RELEASER, or RELEASOR. The maker of a
release.
RELEGATIO. Lat. A kind of banishment known
to the civil law, which differed from "deportatio"
in leaving to the person his rights of citizenship.
RELEGATION. In old English law. Banishment
for a time only. Co. Litt. 133.
RELEVANCY. Applicability to the issue joined.
That quality of evidence which renders it proper-
ly applicable in determining the truth and falsity
of the matters in issue between the parties to a
suit. 1 Greenl.Ev. § 49. Two facts are said to be
relevant to each other when so related that ac-
cording to the common course of events, one ei-
ther taken by itself or in connection with other
facts, proves or renders probable the past, pres-
ent, or future existence or non-existence of the
other. Steph.Dig.Ev. art. 1. Katz v. Delohery
Hat Co., 97 Conn. 665, 112 A. 88, 93; Barnett v.
State, 104 Ohio St. 298, 135 N.E. 647, 650, 27 A.
L.R. 351.
Relevancy is that which conduces to the proof
of a pertinent hypothesis; a pertinent hypothesis
being one which, if sustained, would logically in-
fluence the issue. Whart.Ev. § 20; Hampton v.
State, 126 Tex.Cr.R. 211, 70 S.W.2d 1001.
In Scotch law, the relevancy is the justice or
sufficiency in law of the allegations of a party.
A plea to the relevancy is therefore analogous to
the demurrer of the English courts.
A distinction is sometimes taken between "logical" rele-
vancy and "legal" relevancy, the former being judged
merely by the standards of ordinary logic or the general
laws of reasoning, the latter by the strict and artificial
rules of the law with reference to the admissibility of evi-
dence. Hoag v. Wright, 54 N.Y.S. 658, 34 App.Div. 260.
Relevant evidence is such evidence as relates to, or bears
directly upon, the point or fact in issue, and proves or has
a tendency to prove the proposition alleged; evidence
which conduces to prove a pertinent theory in a case.
State v. O'Neil, 13 Or. 183, 9 P. 286; Moran v. Abbey, 58
Cal. 163, 168. 1 Whart.Ev. § 20. It does not mean evidence
addressed with positive directness to the point but that
which according to the common course of events either tak-
en by itself or in connection with other facts, proves or
renders probable the past, present or future existence or
nonexistence of the other. Seller v. Jenkins, 97 Ind. 430,
438 (quoting Steph.Ev. art. 1, and Best, Principles of Ev.
257, n.). See, also, Relevancy.
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Relevancy of evidence does not depend upon the con-
clusiveness of the testimony offered, but upon its legiti-
mate tendency to establish a controverted fact. Interstate
Commerce Commission v. Baird, 24 S.Ct. 563, 194 U.S. 25,
48 L. Ed. 860; State v. Upson:  162 Minn. 9, 201 N.W. 913,
915.
RELEVANT. Applying to the matter in ques-
tion; affording something to the purpose.
Fact is relevant to another fact when, according to com-
mon course of events, existence of one taken alone or in
connection with the other fact renders existence of the
other certain or more probable. Gulf, C. & S. F. Ry. Co.
v. Downs, Tex.Civ.App., 70 S.W.2d 318, 322.
In Scotch law, good in law, legally sufficient;
as, a "relevant" plea or defense.
RELEVANT EVIDENCE. See Evidence.
RELIABLE. Trustworthy, 'worthy of confidence.
Quinn v. Daly, 300 Ill. 273, 133 N.E. 290, 291.
RELICT. The survivor of a pair of married peo-
ple, whether the survivor is the husband or the
wife; it means the relict of the united pair, (or of
the marriage union,) not the relict of the deceas-
ed individual. Spitler v. Heeter, 42 Ohio St. 101.
RELICTA VERIFICATIONE. (Lat. his pleading
being abandoned). A confession of judgment
made after plea pleaded; viz., a cognovit actionem
accompanied by a withdrawal of the plea.
RELICTION. An increase of the land by the
permanent withdrawal or retrocession of the sea
or a river. Hammond v. Shepard, 186 Ill. 235,
57 N.E. 867, 78 Am.St.Rep. 274. Conkey v. Knud-
sen, 141 Neb. 517, 4 N.W.2d 290, 295.
RELIEF. The assistance or support, pecuniary
or otherwise, granted to indigent persons by the
proper administrators of the poor-laws.
Also wages paid in cash or in kind for public
work because of need. In re Matruski, 8 N.Y.S.
2d 471, 480, 169 Misc. 316.
Deliverance from oppression, wrong, or injus-
tice.
In this sense it is used as a general designation of the
assistance, redress, or benefit which a complainant seeks
at the hands of a court, particularly in equity. It may be
thus used of such remedies as specific performance, or the
reformation or rescission of a contract; but it does not
seem appropriate to the awarding of money damages.
In feudal law. A sum payable by the new ten-
ant, the duty being incident to every feudal ten-
ure, by way of fine or composition with the lord
for taking up the estate which was lapsed or
fallen in by the death of the last tenant. At one
time the amount was arbitrary, but afterwards
the relief of a knight's fee became fixed at one
hundred shillings. 2 Bl.Comm. 65.
RELIEF ASSOCIATION, See Railroad Relief
Funds.
RELIEVE. To give ease, comfort, or consolation
to; to give aid, help, or succor to; alleviate, as-
suage, ease, mitigate; succor, assist, aid, help;
support, sustain; lighten, diminish. Brollier v.
Van Alstine, 236 Mo.App. 1233, 163 S.W.2d 109, 115.
To release from a post, station, or duty; to put
another in place of, or to take the place of, in
the bearing of any burden, or discharge of any
duty. Kemp v. Stanley, 204 La. 110, 15 So.2d
1, 11.
In feudal law, to depend; thus, the seigniory of
a tenant in capite relieves of the crown, meaning
that the tenant holds of the crown. The term is
not common in English writers. Sweet.
RELIGIO SEQUITUR PATREM. The father's
religion is prima facie the infant's religion. Re-
ligion will follow the father. [1902] 1 Ch. 688.
RELIGION. Man's relation to Divinity, to rev-
erence, worship, obedience, and submission to
mandates and precepts of supernatural or supe-
rior beings. In its broadest sense includes all
forms of belief in the existence of superior beings
exercising power over human beings by volition,
imposing rules of conduct, with future rewards
and punishments. McMasters v. State, 21 Okl.
Cr. 318, 207 P. 566, 568, 29 A.L.R. 292.
One's views of his relations to his Creator and to the
obligations they impose of reverence for his being and
character, and of obedience to his will. It is often con-
founded with cultus or form of worship of a particular
sect, but is distinguishable from the latter. People ex rel.
Fish v. Sandstrom, 3 N.Y.S.2d 1006, 1007, 167 Misc. 436.
Bond uniting man to God, and a virtue whose purpose is
to render God worship due him as source of all being and
principle of all government of things. Nikulnikoff v.
Archbishop, etc., of Russian Orthodox Greek Catholic
Church, 255 N.Y.S. 653, 663, 142 Misc. 894.
As used in constitutional provisions forbidding
the "establishment of religion," the term means a
particular system of faith and worship recognized
and practised by a particular church, sect, or de-
nomination. Reynolds v. U. S., 98 U.S. 149, 25 L.
Ed. 244; Board of Education v. Minor, 23 Ohio
St. 241, 13 Am.Rep. 233
RELIGION, OFFENSES AGAINST. In English
law. They are thus enumerated by Blackstone:
(1) Apostasy; (2) heresy; (3) reviling the ordi-
nances of the church; (4) blasphemy; (5) pro-
fane swearing; (6) conjuration or witchcraft;
(7) religious imposture; (8) simony; (9) pro-
fanation of the Lord's day; (10) drunkenness;
(11) lewdness. 4 Bl.Comm. 43.
RELIGIOUS BOOKS. Those which tend to pro-
mote the religion taught by the Christian dispen-
sation, unless by associated words the meaning is
so limited to show that some other form of wor-
ship is referred to. Simpson v. Welcome, 72 Me.
500, 39 Am.Rep. 349.
RELIGIOUS FREEDOM. Within constitution
embraces not only the right to worship God ac-
cording to the dictates of one's conscience, but
also the right to do, or forbear to do, any act, for
conscience sake, the doing or forbearing of which
is not inimical to the peace, good order, and morals
of society. Barnette v. West Virginia State Board
of Education, D.C.W.Va., 47 F.Supp. 251, 253, 254;
Jones v. City of Moultrie, 196 Ga. 526, 27 S.E.2d 39.
RELIGIOUS CORPORATION See Corporation.
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RELIGIOUS
RELIGIOUS HOUSES. Places set apart for pious
uses; such as monasteries, churches, hospitals,
and all other places where charity was extended
to the relief of the poor and orphans, or for the
use or exercise of religion.
RELIGIOUS IMPOSTORS. In English law.
Those who falsely pretend an extraordinary com-
mission from heaven, or terrify and abuse the
people with false denunciations of judgment; they
are punishable with fine, imprisonment, and in-
famous corporal punishment. 4 Broom & H.
Comm. 71.
RELIGIOUS LIBERTY. See Liberty.
RELIGIOUS MEN. Such as entered into some
monastery or convent. In old English deeds, the
vendee was often restrained from aliening to
"Jews or religious men" lest the lands should fall
into mortmain. Religious men were civilly dead.
Blount.
RELIGIOUS SOCIETY. A body of persons asso-
ciated together for the purpose of maintaining
religious worship. The communicants of a denom-
ination who statedly attend services in the church
edifice. Fiske v. Beaty, 201 N.Y.S. 441, 444, 206
App.Div. 349.
RELIGIOUS USE. See Charitable Uses.
RELINQUISH. To abandon, to give up, to sur-
render, to renounce some right or thing. Masser
v. London Operating Co., 106 Fla. 474, 145 So. 79,
84; Roy v. Salisbury, Cal.App., 121 P.2d 109, 117.
RELINQUISHMENT. A forsaking, abandoning,
renouncing, or giving over a right. Wisconsin-
Texas Oil Co. v. Clutter, Tex.Civ.App., 258 S.W.
265, 268.
RELIQUA. The remainder or debt which a per-
son finds himself debtor in upon the balancing or
liquidation of an account. Hence reliquary, the
debtor of a reliqua; as also a person who only
pays piece-meal. Enc.Lond.
RELIQUES. Remains; such as the bones, etc.,
of saints, preserved with great veneration as sa-
cred memorials. They have been forbidden to be
used or brought into England. St. 3 Jac. I. c. 26.
RELOCATIO. Lat. In the civil law. A renewal
of a lease on its determination. It may be either
express or tacit; the latter is when the tenant
holds over with the knowledge and without ob-
jection of the landlord. Mackeld. Rom. Law, §
412.
RELOCATION. In Scotch law. A reletting or
renewal of a lease; a tacit relocation is permitting
a tenant to hold over without any new agreement.
In mining law. A new or fresh location of an
abandoned or forfeited mining claim by a stran-
ger, or by the original locator when he wishes to
change the boundaries or to correct mistakes in
the original location.
REMAINDER. The remnant of an estate in land,
depending upon a particular prior estate created
at the same time and by the same instrument, and
limited to arise immediately on the determination
of that estate, and not in abridgement of it. 4
Kent, Comm. 197; Bean v. Atkins, 87 Vt. 376, 89
A. 643, 646; Pinnell v. Dowtin, 224 N.C. 493, 31
S.E.2d 467, 469.
An estate limited to take effect and be enjoyed after
another estate is determined. As, if a man seised in fee-
simple grants lands to A. for twenty years, and, after the
determination of the said term, then to B. and his heirs
forever, here A. is tenant for years, remainder to B. in fee.
2 Bl.Comm. 164.
An estate in reversion is the residue of an estate, usually
the fee left in the grantor and his heirs after the deter-
mination of a particular estate which he has granted out
of it.  The rights of the reversioner are the same as those
of a vested remainderman in fee. Sayward v. Sayward, 7
Me. 213, 22 Am.Dec. 191; Glenn v. Holt, Tex.Civ.App., 229
S. W. 684, 685.
In wills. The terms rest, residue, and remainder of es-
tate are usually and ordinarily understood as meaning that
part of the estate which is left after all of the other pro-
visions of the will have been satisfied. In re Vail's Estate,
223 Iowa 551, 273 N.W. 107, 110.
Contingent Remainder
An estate in remainder which is limited to take
effect either to a dubious and uncertain person, or
upon a dubious and uncertain event, by which no
present or particular interest passes to the re-
mainder-man, so that the particular estate may
chance to be determined and the remainder never
take effect. 2 Bl.Comm. 169. A remainder limited
so as to depend upon an event or condition which
may never happen or be performed, or which may
not happen or be performed till after the deter-
mination of the preceding estate. Fearne, Rem. 3;
Thompson v. Adams, 205 Ill. 552, 69 N.E. 1; Gris-
wold v. Greer, 18 Ga. 545; Price v. Sisson, 13 N.J.
Eq. 168.
Cross-Remainder
Where land is devised or conveyed to two or
more persons as tenants in common, or where
different parts of the same land are given to such
persons in severalty, with such limitations that,
upon the determination of the particular estate
of either, his share is to pass to the other, to the
entire exclusion of the ultimate remainder-man
or reversioner until all the particular estates shall
be exhausted, the remainders so limited are called
"cross-remainders." In wills, such remainders may
arise by implication; but, in deeds, only by ex-
press limitation. 2 Bl.Comm. 381; 2 Washb. Real
Prop. 233; 1 Prest.Est. 94.
Executed Remainder
A remainder which vests a present interest in
the tenant, though the enjoyment is postponed to
the future. 2 Bl.Comm. 168; Fearne, Rem. 31;
Hudson v. Wadsworth, 8 Conn. 359.
Executory Remainder
A contingent remainder; one which exists
where the estate is limited to take effect either to
a dubious and uncertain person or upon a dubious
and uncertain event. Temple v. Scott, 143 Ill.
290, 32 N.E. 366.
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REMEDY
Vested Remainder
An estate by which a present interest passes to
the party, though to be enjoyed in futuro, and by
which the estate is invariably fixed to remain to
a determinate person after the particular estate
has been spent. Pinnell v. Dowtin, 224 N.C. 493,
31 S.E.2d 467, 469. One limited to a certain per-
son at a certain time or upon the happening of
a necessary event. ' Etna Life Ins. Co. v. Hop-
pin, 214 F. 928, 933, 131 C.C.A. 224.
REMAINDER TO A PERSON NOT OF A CA-
PACITY TO TAKE AT THE TIME OP APPOINT-
ING IT, IS VOID. Plowd. 27.
REMAINDER VESTED SUBJECT TO BEING
DIVESTED. A remainder given to one person,
with proviso that it shall go to another under
certain contingencies. In re Barnes' Estate, 279
N.Y.S. 117, 155 Misc. 320.
REMAINDERMAN. One who is entitled to the
remainder of the estate after a particular estate
carved out of it has expired. In re Mawhinney's
Will, 261 N.Y.S. 334, 146 Misc. 30.
REMAND. To send back.
Cause
The sending the cause back to the same court
out of which it came, for purpose of having some
action on it there.
Prisoner
After a preliminary or partial hearing before a
court or magistrate, is to send him back to cus-
tody, to be kept until the hearing is resumed or
the trial comes on. Ex parte Chalfant, 81 W.Va.
93, 93 S.E. 1032, 1033.
When a prisoner is brought before a judge on habeas
corpus, for the purpose of obtaining liberty, the judge
hears the case, and either discharges him or remands him.
REMANENT PRO DEFECTU EMPTORUM. In
practice. The return made by the sheriff to a
writ of execution when he has not been able to
sell the property seized, that the same remains
unsold for want of buyers.
REMANENTIA. In old English law. A remain-
der. Spelman. A perpetuity, or perpetual estate.
Glan. lib. 7, c. 1.
REMANET. A remnant; that which remains.
Thus the causes of which the trial is deferred
from one term to another, or from one sitting to
another, are termed "remanets." 1 Archb.Pr. 375.
REMEDIAL STATUTE. One that intends to af-
ford a private remedy to a person injured by the
wrongful act. That is designed to correct an ex-
isting law, redress an existing grievance, or in-
troduce regulations conducive to the public good.
In re School Dist. No. 6, Paris and Wyoming Tps.,
Kent County, 284 Mich. 132, 278 N.W. 792, 797;
Bowles v. Trowbridge, D.C.Cal., 60 F.Supp. 48, 49.
A statute giving a party a mode of remedy for
a wrong, where he had none, or a different one,
before. 1 Chit.B1. 86, 87, notes; In re Ungaro's
Will, 88 N.J.Eq. 25, 102 A. 244, 246; Cherry v.
Kennedy, 144 Tenn. 320, 232 S.W. 661, 662.
The underlying test to be applied in determining wheth-
er a statute is penal or remedial is whether it primarily
seeks to impose an arbitrary, deterring punishment upon
any who might commit a wrong against the public by a
violation of the requirements of the statute, or whether the
purpose is to measure and define the damages which may
accrue to an individual or class of individuals, as just and
reasonable compensation for a possible loss having a causal
connection with the breach of the legal obligation owing
under the statute to such individual or class. Southern Ry.
Co. v. Melton, 133 Ga. 277, 291, 307, 65 S.E. 665. In re
Engel's Estate, 250 N.Y.S. 648, 653, 140 Misc. 276. Reme-
dial statutes are those which are made to supply such de-
fects, and abridge such superfluities, in the common law,
as arise either from the general imperfection of all human
laws, from change of time and circumstances, from the
mistakes and unadvised determinations of unlearned (or
even learned) judges, or from any other cause whatsoever.
1 B1.Comm. 86; Falls v. Key, Tex.Civ.App., 278 S.W. 893,
896; Columbus Trust Co. v. Upper Hudson Electric & R.
Co., Sup., 190 N.Y.S. 737, 739. These remedial statutes are
themselves divided into enlarging statutes, by which the
common law is made more comprehensive and extended
than it was before, and into restraining statutes, by which
it is narrowed down to that which is just and proper. A
remedial statute is one which not only remedies defects in,
the common law but defects in civil jurisprudence gen-
erally. M. H. Vestal Co. v. Robertson, 277 Ill. 425, 115
N.E. 629, 631; MacDonald v. Hamilton B. Wills & Co., 199
App. Div. 203, 191 N.Y.S. 566, 568.
REMEDIES FOR RIGHTS ARE EVER FAVOR-
ABLY EXTENDED. 18 Vin.Abr. 521.
REMEDY. The means by which a right is en-
forced or the violation of a right is prevented, re-
dressed, or compensated. Remedies are of four
kinds: (1) By act of the party injured, the prin-
cipal of which are defense, recaption, distress, en-
try, abatement, and seizure; (2) by operation of
law, as in the case of retainer and remitter; (3)
by agreement between the parties, e. g., by accord
and satisfaction and arbitration; and (4) by ju-
dicial remedy, e. g., action or suit. Sweet. Berry
v. M. F. Donovan & Sons, 120 Me. 45'7,115 A. 250,
252, 25 A.L.R. 1021; California Prune & Apricot
Growers' Ass'n v. Catz American Co., C.C.A.Cal.,
60 F.2d 788, 790, 85 A.L.R. 1117.
REMEDIAL. Affording a remedy; giving the
means of obtaining redress. Of the nature of a
remedy; intended to remedy wrongs or abuses,
abate faults, or supply defects. Pertaining to or
affecting the remedy, as distinguished from that
which affects or modifies the right.
REMEDIAL ACTION. One which is brought to
obtain compensation or indemnity. Cummings v.
Board of Education of Oklahoma City, 190 Okl.
533, 125 P.2d 989, 994.
Black's Law Dictionary Revised 4th Ed.-92
The means employed to enforce a right or re-
dress an injury, as distinguished from right, which
is a well founded or acknowledged claim. Chel-
entis v. Luckenbach S. S. Co., 38 S.Ct. 501, 503, 247
U.S. 372, 62 L.Ed. 1171.
Strictly speaking, "remedy" is no part of the action, but
is the result thereof, the object for which the action is pre-
sented, the end to which all the litigation is directed.
Mathews v. Sniggs, 75 Okl. 108, 182 P. 703, 707.
Remedies for the redress of injuries are either public, by
indictment, when the injury to the individual or to his
property affects the public, or private, when 'the tort is
only injurious to the individual.
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REMEDY
That which relieves or cures a disease, includ-
ing a medicine or remedial treatment. United
States v. Natura Co., D.C.Cal., 250 F. 925, 926.
Also a certain allowance to the master of the
mint, for deviation from the standard weight and
fineness of coins. Enc. Lond.
Adequate Remedy
See Adequate.
Civil Remedy
The remedy afforded by law to a private per-
son in the civil courts in so far as his private and
individual rights have been injured by a delict
or crime; as distinguished from the remedy by
criminal prosecution for the injury to the rights of
the public.
Cumulative Remedy
See Cumulative.
Exclusive Remedy
See Exclusive Remedy.
Extraordinary Remedy
See Extraordinary.
Judicial Remedy
See Judicial.
Legal Remedy
A remedy available, under the particular cir-
cumstances of the case, in a court of law, as dis-
tinguished from a remedy available only in equity.
See State v. Sneed,. 105 Tenn. 711, 58 S.W. 1070.
Remedy Over
A person who is primarily liable or responsible,
but who, in turn, can demand indemnification
from another, who is responsible to him, is said
to have a "remedy over." For example, a city,
being compelled to pay for injuries caused by a
defect in the highway, has a "remedy over"
against the person whose act or' negligence caus-
ed the defect, and such person is said to be "li-
able over" to the city. 2 Black, Judgm. § 575.
REMEMBRANCER. Of the city of London. Par-
liamentary solicitor to the corporation, and bound
to attend all courts of aldermen and common
council when required. Pull.Laws & Cust.Lond.
122. See King's Remembrancer.
REMEMBRANCERS. In English law. Officers
of the exchequer, whose duty it is to put in re-
membrance the lord treasurer and the justices
of that court of such things as are to be called
and dealt in for the benefit of the crown. Jacob.
REMERE. In French law. Redemption; right
of redemption.
A sale ez. remdrO is a species of conditional sale
with right of repurchase. An agreement by which
the vendor reserves to himself the right to take
back the thing sold on restoring the price paid,
with costs and interest. Duverger.
REMISE. To remit or give up. A formal word
in deeds of release and quitclaim; the usual
phrase being "remise, release, and forever quit-
claim." American Mortg. Co. v. Hutchinson, 19
Or. 334, 24 P. 515.
REMISE DE LA DETTE. In French law. The
release of a debt.
REMISSION. In civil law. A release of a debt.
It is conventional, when it is expressly granted
to the debtor by a creditor having a capacity to
alienate; or tacit, when the creditor voluntarily
surrenders to his debtor the original title, under
private signature constituting the obligation.
Civ.Code La. art. 2199. Hall v. Allen Mfg. Co.,
133 La. 1079, 63 So. 591, 592.
Forgiveness or condonation of an offense or
injury.
At common law. The act by which a forfeiture
or penalty is forgiven. United States v. Morris,
10 Wheat. 246, 6 L.Ed. 314.
REMISSIUS IMPERANTI MELIUS rARETUR.
3 Inst. 233. A man commanding not too strictly
is better obeyed.
REMISSNESS. The doing of the act in question
in a tardy, negligent, or careless manner; but
term does not apply to the entire omission or for-
bearance of the act. Baldwin v. United States Tel.
Co., 6 Abb.Prac.N.S., N.Y., 423.
REMIT. To send or transmit; as to remit money.
Potter v. Morland, 3 Cush. (Mass.) 388; Hollowell
v. Life Ins. Co., 35 S.E. 616, 126 N.C. 398. To send
back, as to remit a check. Colvin v. Acc. Ass'n,
66 Hun, 543, 21 N.Y.S. 734. To give up; to annul;
to relinquish; as to remit a fine. People ex rel.
Cropsey v. Court of Special Sessions of City of
New York, 156 N.Y.S. 61, 62, 170 App.Div. 575.
REMITMENT. The act of sending back to cus-
tody; an annulment. Wharton.
REMITTANCE. Money sent by one person to
another, either in specie, bill of exchange, check,
or otherwise.
REMITTEE. A person to whom a remittance is
made. Story, Bailm. § 75.
REMITTER. The relation back of a later defec-
tive title to an earlier valid title. Remitter oc-
curs where he who has the true property or jus
proprietatis in lands, but is out of possession
thereof, and has no right to enter without recov-
ering possession in an action, has afterwards the
freehold cast upon him by some subsequent and
of course defective title. In this ,case he is re-
mitted, or sent back by operation of law, to his
ancient and more certain title. 3 Bl.Comm. 19.
REMITTIT DAMNA. Lat. An entry on the rec-
ord, by which the plaintiff declares that he remits
a part of the damages which have been awarded
him.
REMITTITUR DAMNA. Lat. In practice. An
entry made on record, in cases where a jury has
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REMOVAL
given greater damages than a plaintiff has de-
clared for, remitting the excess. 2 Tidd, Pr. 896.
REMITTITUR OF RECORD. The returning or
sending back by a court of appeal of the record
and proceedings in a cause, after its decision there-
on, to the court whence the appeal came, in order
that the cause may be tried anew, (where it is so
ordered,) or that judgment may be entered in ac-
cordance with the decision on appeal, or execution
be issued, or any other necessary action be taken
in the court below.
REMITTOR. A person who makes a remittance
to another.
REMNANT RULE. The rule that width of lot,
frontage of which is not specified on plat specify-
ing frontage of all other lots in same block, is
length of block, minus total width of other lots.
Routh v. Williams, 141 Fla. 334, 193 So. 71, 73.
REMODEL. To model, shape, form, fashion, a-
fresh, or to recast; to model anew; to recon-
struct, to reform, reshape, reconstruct, to make
over in a somewhat different way. Board of
Com'rs of Guadalupe County v. State, 43 N.M. 409,
94 P.2d 515, 520.
REMONSTRANCE. Expostulation; showing of
reasons against something proposed; a repre-
sentation made to a court or legislative body
wherein certain persons unite in urging that a
contemplated measure be not adopted or passed.
Girvin v. Simon, 59 P. 945, 127 Cal. 491; In re
Mercer County License Applications, 3 Pa.Co.Ct.
R. 45.
REMOTE. At a distance; afar off; inconsidera-
ble; slight. Newsome v. Louisville & N. R. Co.,
20 Ala.App. 349, 102 So. 61, 64.
REMOTE CAUSE. In the law of negligence with
respect to injury or accident. A cause which
would not according to experience of Mankind,
lead to the event which happened. Miles v. South-
eastern Motor Truck Lines, 295 Ky. 156, 173 S.W.2d
990, 994. One where the effect is uncertain, vague,
or indeterminate, and where the effect does not
necessarily follow. Jaggers v. Southeastern
Greyhound Lines, D.C.Tenn., 34 F.Supp. 667, 669.
A cause operating mediately through other caus-
es to produce effect. Newsome v. Louisville & N.
R. Co., 20 Ala.App. 349, 102 So. 61, 64. Improbable
cause. Fitzgerald v. Pennsylvania R. R., 184 A.
299, 301, 121 Pa.Super. 461; Nashville, C. & St. L.
Ry. v. Harrell, 21 Tenn.App. 353, 110 S.W.2d 1032,
1038.
To determine whether a given cause is a "proximate
cause" or a "remote cause," it must be determined wheth-
er the facts constitute a succession of events, so linked to-
gether that they become a natural whole, or whether chain
of events is so broken that they become independent, and
final result cannot be said to be the natural and probable
consequence of the primary cause, the negligence of de-
fendants. Fitzgerald v. Pennsylvania R. R., 121 Pa.Super.
461, 184 A. 299.
REMOTE DAMAGE. See Damages.
REMOTE POSSIBILITY. In the law of estates,
a double possibility, or a limitation dependent on
two or more facts or events both or all of which
are contingent and uncertain; as, for example, the
limitation of an estate to a given man provided
that he shall marry a certain woman and that she
shall then die and he shall marry another.
REMOTENESS. Want of close connection be-
tween a wrong and the injury which prevents the
party injured from claiming compensation from
the wrongdoer. Wharton.
REMOTENESS OF EVIDENCE. When the fact
or facts proposed to be established as a founda-
tion from which indirect evidence may be drawn,
by way of inference, have not a visible, plain, or
necessary connection with the proposition eventu-
ally to be proved, such evidence is rejected for
"remoteness." See 2 Whart.Ev. § 1226, note.
REMOTO IMPEDIMENTO, EMERGIT ACTIO.
The impediment being removed, the action rises.
When a bar to an action is removed, the action
rises up into its original efficacy. Shep.Touch.
150; Wing. 20.
REMOVAL. In a broad sense, the transfer of a
person or thing from one place to another. Dur-
rett v. Woods, 155 La. 533, 99 So. 430, 431.
As used in statutes relative to removal from
state is often limited to such absence from state
as amounts to a change of residence. Smithers
v. Smithers, 145 La. 752, 82 So. 879, 880.
REMOVAL FROM OFFICE. Deprivation of of-
fice by act of competent superior officer acting
within scope of authority. Attorney General ex
rel. O'Hara v. Montgomery, 275 Mich. 504, 267 N.
W. 550, 553.
"Suspension" is the temporary forced removal from the
exercise of office; "removal" is the dismissal from office.
Murley v, Township of Raritan, 117 N.J.L. 357, 168 A. 739,
740.
REMOVAL OF CAUSES. The transfer of a cause
from one court to another. State ex rel. McNeal
v. Avoyelles Parish School Board, 199 La. 859, 7
So.2d 165, 166. Commonly used of the transfer
of the jurisdiction and cognizance of an action
commenced but not finally determined, with all
further proceedings therein, from one trial court
to another trial court. More particularly, the
transfer of a cause, before trial or final hearing
thereof, from a state court to the United States
District Court, under the acts of congress in that
behalf.
REMOVAL OF PAUPER. The actual transfer of
a pauper, by order of a court having jurisdiction,
from a poor district in which he has no settle-
ment, but upon which he has become a charge,
to the district of his domicile or settlement.
REMOVAL, ORDER OF. An order of court di-
recting the removal of a pauper from the poor dis-
trict upon which he has illegally become a charge
to the district in which he has his settlement.
Also an order made by the court a quo, directing
the transfer of a cause therein depending, with
all future proceedings in such cause, to another
court.
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REMOVAL
REMOVAL TO AVOID TAX. Within a statute re-
lating to forfeiture, some transfer of the thing
involved from some definite place of manufacture,
production, origin, or the like to some other place,
whereat or wherefrom collection of tax on it
might be less easily effected. U. S. v. One Buick
Automobile, D.C.Cal., 300 F. 584, 588; U. S. v.
Mangano, C.C.A.Neb., 299 F. 492, 493.
REMOVAL WITHOUT PROPER CAUSE. Of
persons in the classified civil service, includes a
removal for reasons which are insufficient, frivo-
lous, or irrelevant, and a removal grounded upon
evidence which to fair-minded persons appears
inadequate to justify the conclusion reached but
falling short of an exercise of bad faith. Murray
v. Justices of Municipal Court of City of Boston,
233 Mass. 186, 123 N.E. 682, 683. See "Cause."
REMOVER. In practice. A transfer of a suit
or cause out of one court into another, which is
effected by writ of error, certiorari, and the like.
11 Coke, 41.
REMOVING CLOUD FROM TITLE. Acts or pro-
ceedings necessary to render title marketable.
Johnston v. Cox, 114 Fla. 243, 154 So. 206.
REMUNERATION. Reward; recompense; sal-
ary. Dig. 17, 1, 7.
A quid pro quo. If a man gives his services, whatever
consideration he gets for giving his services seems to me a
remuneration for them. Consequently, I think, if a per-
son was in the receipt of a payment, or in the receipt of a
percentage, or any kind of payment which would not be an
actual money payment, the amount he would receive an-
nually in respect of this would be "remuneration." 1 Q.B.
Div. 663, 664.
RENANT, or RENIANT. In old English law.
Denying. 32 Hen. VIII. c. 2.
RENCOUNTER. A sudden hostile collision, as
with an enemy; an unexpected encounter or meet-
ing, as of travelers; a contest or debate; a sud-
den meeting as opposed to a duel which is delib-
erate. Mulligan v. State, 18 Ga.App. 464, 89 S.E.
541, 544.
RENDER, v. To give up; to yield; to return;
to surrender. Also to pay or perform; used of
rents, services, and the like.
Render an account. Is to present it. Yarbrough
v. Armour & Co., 31 Ala.App. 287, 15 So.2d 281,
283.
Render judgment. To pronounce, state, declare,
or announce the judgment of the court in a given
case or on a given state of facts; not used with
reference to judgments by confession, and not
synonymous with "entering," "docketing," or "re-
cording" the judgment.
The rendition of a judgment is the judicial act of the
court in pronouncing the sentence of the law, while the
entry of a judgment is a ministerial act, which consists in
spreading upon the record a statement of the final con-
clusion reached by the court in the matter, thus furnishing
external and incontestable evidence of the sentence given
and designed to stand as a perpetual memorial of its ac-
tion. Schuster v. Rader, 13 Colo. 329, 22 P. 505; Farmers'
State Bank v. Bales, 64 Neb. 870, 90 N.W. 945; Winstead
v. Evans, Tex.Civ.App., 33 S.W. 580; Welch v. Kroger Gro-
cery Co., 177 So. 41, 42, 180 Miss. 89.
Render verdict. To agree on and to report the
verdict in due form. S. W. Little Coal Co. v.
O'Brien, 63 Ind.App. 504, 113 N.E. 465, 470. To
return the written verdict into court and hand it
to the trial judge. Kramm v. Stockton Electric
R. Co., 22 Cal.App. 737, 136 P. 523, 533.
RENDER, n. In feudal law, used in connection
with rents and heriots. Goods subject to rent
or heriot-service were said to lie in render, when
the lord might not only seize the identical goods,
but might also distrain for them. Cowell.
RENDEZVOUS. Fr. A place appointed for meet-
ing. Especially used of places appointed for the
assembling of troops, the coming together of the
ships of a fleet, or the meeting of vessels and
their convoy.
RENEGADE. One who has changed his profes-
sion of faith or opinion; one who has deserted his
church or party.
RENEW. To make new again; to restore to
freshness; to make new spiritually; to regen-
erate; to begin again; to recommence; to re-
sume; to restore to existence; to revive; to re-
establish; to recreate; to replace; to grant or
obtain an extension of. Rayburn v. Guntersville
Realty Co., 228 Ala. 662, 154 So. 812, 93 A.L.R.
1055; F. Chafee's Sons v. Blanchard's Estate, 105
Vt. 389, 165 A. 912, 913.
RENEWAL. The act of renewing or reviving. A
revival or rehabilitation of an expiring subject;
that which is made anew or re-established; in
law, meaning an obligation on which time of pay-
ment is extended; the substitution of a new right
or obligation for another of the same nature, a
change of something old to something new; to
grant or obtain extension of, to continue in force
for a fresh period; as commonly used with ref-
erence to notes and bonds importing a postpone-
ment of maturity of obligations dealt with; an ex-
tension of time in which that obligation may be
discharged; an obligation being "renewed" when
the same obligation is carried forward by the new
paper or undertaking, whatever it may be. Camp-
bell River Timber Co. v. Vierhus, C.C.A.Wash., 86
F.2d 673, 675, 108 A.L.R. 763.
There is clear distinction between stipulation to "renew"
lease for additional term and one to "extend," in that
stipulation to renew requires making of new lease, while
one to extend does not. Sanders v. Wender, 205 Ky. 422,
265 S. W. 939, 941.
RENOUNCE. To make an affirmative declaration
of abandonment. Continental Bank & Trust Co. of
New York v. Fulton Realty Co., 10 N.J.Misc. 1105,
162 A. 560, 563. To reject; cast off; repudiate;
disclaim; forsake; abandon; divest one's self
of a right, power, or privilege. Usually it implies
an affirmative act of disclaimer or disavowal.
RENOUNCING PROBATE. In English practice.
Refusing to take upon one's self the office of exec-
utor or executrix. Refusing to take out probate
under a will wherein one has been appointed exec-
utor or executrix. Holthouse.
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RENTAL
RENOVARE. Lat. In old English law. To re-
new. Annuatim renovare, to renew annually. A
phrase applied to profits which are taken and the
product renewed again. Amb. 131.
RENT. Consideration paid for use or occupation
of property. Whiting Paper Co. v. Holyoke Water
Power Co., 276 Mass. 542, 177 N.E. 574, 575. Com-
pensation or return of value given at stated times
for the possession of lands and tenements cor-
poreal. A sum of money or other consideration,
issuing yearly out of lands and tenements corpo-
ral; something which a tenant renders out of the
profits of the land which he enjoys; a compensa-
tion or return, being in the nature of an acknowl-
edgment or recompense given for the possession
of some corporeal inheritance. 2 Bl.Comm. 41; In
re Perlmutter's Will, 282 N.Y.S. 282, 156 Misc.
571.
Also the payment of royalty under a mineral
lease. Robinson v. Horton, 197 La. 919, 2 So.2d
647, 649; Miller v. Carr, 137 Fla. 114, 188 So. 103,
106, 107.
In Louisiana. The contract of rent of lands is a contract
by which one of the parties conveys and cedes to the other
a tract of land, or any other immovable property, and
stipulates that the latter shall hold it as owner, but re-
serving to the former an annual rent of a certain sum of
money, or of a certain quantity of fruits, which the other
party binds himself to pay him. It is of the essence of this
conveyance that it be made in perpetuity. If it be made
for a limited time, it is a lease. Civ.Code La. arts. 2779,
2780.
As used in Emergency Price Control Act au-
thorizing recovery of either $50 or treble damages
for overcharge of rent, means each separate pay-
ment made by tenant to landlord at a specified
time for use of landlord's premises, and does not
mean a single right to all the payments made on
a series of occasions in return for a continuous
estate conveyed by landlord. Emergency Price
Control Act of 1942, § 205 (e), 50 U.S.C.A.Appendix
§ 925 (e). Gilbert v. Thierry, D.C.Mass., 58 F.
Supp. 235, 240.
Fair rent. See Fair Rent.
Fee farm rent. A rent charge issuing out of
an estate in fee; a perpetual rent reserved on a
conveyance of land in fee simple.
Ground rent. See Ground.
Quit rent. Certain established rents of the free-
holders and ancient copyholders of manors were
so called, because by their payment the tenant was
free and "quit" of all other services.
Rack rent. A rent of the full annual value of
the tenement or near it. 2 Bl.Comm. 43.
Rent-charge. This arises where the owner of
the rent has no future interest or reversion in the
land. It is usually created by deed or will, and
is accompanied with powers of distress and entry.
Rent-roll. A list of rents payable to a particu-
lar person or public body.
Rent seck. Barren rent; a rent reserved by
deed, but without any clause of distress. 2 Bl.
• Comm. 42; 3 Kent, Comm. 461. Kavanaugh v.
Cohoes Power & Light Corporation, 114 Misc. 590,
187 N.Y.S. 216, 232.
Rent-service. This consisted of fealty, together
with a certain rent, and was the only kind of rent
originally known to the common law. It was so
called because it was given as a compensation
for the services to which the land was originally
liable. Brown.
Rents of assize. The certain and determined
rents of the freeholders and ancient copyholders
of manors. Apparently so called because they
were assized or made certain, and so distinguished
from a redditus mobilis, which was a variable or
fluctuating rent. 3 Cruise, Dig. 314; Brown.
Rents resolute. Rents anciently payable to the
crown from the lands of abbeys and religious
houses; and after their dissolution, notwithstand-
ing that the lands were demised to others, yet the
rents were still reserved and made payable again
to the crown. Cowell.
RENT MUST BE RESERVED TO HIM FROMWHOM THE STATE OF THE LAND MOVETH.Co.Litt. 143.
RENTAGE. Rent.
RENTAL. (Said to be corrupted from "rent-
roll.") In English law. A roll on which the rents
of a manor are registered or set down, and by
which the lord's bailiff collects the same. It con-
tains the lands and tenements let to each tenant,
the names of the tenants, and other particulars.
Cunningham; Holthouse.
Payment received periodically for the use of
property; rent.. Friedbar Realty Corporation v.
Sanford, 119 Misc. 621, 198 N.Y.S. 38, 39.
Net Rental
When used with reference to real property,
means a rental over and above all expenses. Per-
kins v. Kirby, 39 R.I. 343, 97 A. 884, 887.
Rental Bolls
In Scotch law. When the tithes (tiends) have
been liquidated and settled for so many bolls of
corn yearly. Bell.
Rental-Rights
In English law. A species of lease usually
granted at a low rent and for life. Tenants under
such leases were called "rentalers" or "kindly
tenants."
Rental Value
The value of land for use for purpose for which
it .is adapted in the hands of a prudent occupant,
In re Acquiring Lands for an Alley, 147 Minn. 211,
179 N.W. 907, 909. Fair rental value of land, but
not the conjectural or probable profits thereof.
Maddox v. _yocum, 109 Ind.App. 416, 31 N.E.2d
652, 655.
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RENTE
RENTE. In French law. The annual return
which represents the revenue of a capital or of an
immovable alienated. The constitution of rente
is a contract by which one of the parties lends to
the other a capital which he agrees not to recall,
in consideration of the borrower's paying an an-
nual interest. It is this interest which is called
"rente." Duverger. The word is therefore nearly
synonymous with the English "annuity."
RENTE FONCIERE. A rent which issues out of
land, and it is of its essence that it be perpetual,
for, if it be made but for a limited time, it is a
lease. It may, however, be extinguished. Civ.
Code La. art. 2780.
RENTE VIAGERE. That species of rente, the
duration of which depends upon the contingency
of the death of one or more persons indicated
in the contract. The uncertainty of the time at
which such death may happen causes the rente
viagére to be included in the number of aleatory
contracts. Duverger. Civ.Code La. art. 2793 de-
fines the contract of annuity as that by which
one party delivers to another a sum of money,
and agrees not to reclaim it so long as the receiv-
er pays the rent agreed upon.
RENTES. In French law. Government funds.
Wharton.
RENTIER. In French law. A fundholder, a per-
son having an income from personal property.
Wharton.
RENTS, ISSUES AND PROFITS. The profits
arising from property generally. Rents collected
by party in possession, the net profits. Phrase
does not apply to rental value or value of use and
occupation. People v. Gustafson, 53 Cal.App.2d
230, 127 P.2d 627, 632.
RENUNCIATION. The act by which a person
abandons a right acquired without transferring
it to another. McCormick v. Engstrom, 119 Kan.
698, 241 P. 685, 688.
Under the Negotiable Instruments Law the uni-
lateral act of the holder, usually, without con-
sideration, whereby he expresses the intention of
abandoning his rights on the instrument or against
one or more parties thereto. McGlynn v. Gran-
strom, 169 Minn. 164, 210 N.W. 892, 893. See Re-
nounce.
RENVOI. The act of a state in summarily recon-
ducting foreign vagabonds, criminals, etc., to the
frontiers of their own state. A doctrine under
which the court in resorting to a foreign law
adopts the rules of the foreign law as to conflict
of laws, which rules may in turn refer the court
back to the law of the forum. 31 Harvard Law
Rev. 523, 27 Yale Law Journal 509 and In re Tall-
madge, 109 Misc. 696, 181 N.Y.S. 336, 341. Also
the rule that, in a suit by a nonresident upon a
cause arising locally, his capacity to sue is de-
termined by looking to law of his domicile rather
than to local law. Gray v. Gray, 87 N.H. 82, 174
A. 508, 511, 94 A.L.R. 1404.
REO ABSENTE. Lat. The defendant being ab-
sent; in the absence of the defendant.
REOPENING A CASE. Is to permit the intro-
duction of new evidence and, practically to permit
a new trial.
REORGANIZATION. Act or process of organiz-
ing again or anew. People ex rel. Barrett v. Hal-
sted Street State Bank, 295 Ill.App. 193, 14 N.E.2d
872, 876.
As applied to corporations. The carrying out,
by proper agreements and legal proceedings, of
a business plan for winding up the affairs of or
foreclosing a mortgage or mortgages upon the
property of, insolvent corporations, more frequent-
ly railroad companies. It is usually accomplished
by the judicial sale of the corporate property and
franchises, and the formation by the purchasers
of a new corporation. The property and franchis-
es are thereupon vested in the new corporation
and its stock and bonds are divided among such
of the parties interested in the old company as
are parties to the reorganization plan.
In reorganization of corporation, substantially all assets
of old corporation are transferred to new, and stockholders
hold same proportion of stock in new corporation. Hurst
v. D. P. Davis Properties, C.C.A.Fla., 69 F.2d 333, 335.
REPAIR. To mend, remedy, restore, renovate, to
restore to a sound or good state after decay, in-
jury, dilapidation, or partial destruction. Mozingo
v. Wellsburg Electric Light, Heat & Power Co.,
131 S.E. 717, 718, 101 W.Va. 79; Board of Educa-
tion of Hancock County v. Moorehead, 105 Ohio
St. 237, 136 N.E. 913, 914; Weiss v. Mitchell, Tex.
Civ.App., 58 S.W.2d 165, 166.
The word "repair" contemplates an existing structure or
thing which has become imperfect, and means to supply in
the original existing structure that which is lost or de-
stroyed, and thereby restore it to the condition in which it
originally existed, as near as may be. Childers v. Speer,
63 Ga.App. 848, 12 S.E.2d 439, 440.
REPAIRS. Restoration to soundness; repara-
tion; work done to property to keep it in good
order.
Necessary repairs. For which the master of a
ship may lawfully bind the owner are such as
are reasonably fit and proper for the ship under
the circumstances, and not merely such as are
absolutely indispensable for the safety of the ship
or the accomplishment of the voyage. The Forti-
tude, 3 Sumn. 327, F.Cas.No.4,953; Webster v.
Seekamp, 4 Barn. & Ald. 352.
REPARATION. The redress of an injury;
amends for a wrong inflicted. Jablonowski v.
Modern Cap Mfg. Co., 312 Mo. 173, 279 S.W. 89,
95.
REPARATIONE FACIENDA. For making re-
pairs. The name of an old writ which lay in vari-
ous cases; as if, for instance, there were three
tenants in common of a mill or house which had
fallen into decay, and one of the three was willing
to repair it, and the other two not; in such case
the party who was willing to repair might have
this writ against the others. Cowell; Fitzh.Nat.
Brev. 127.
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REPLEVIN
REPARTIAMENTO. In Spanish law, a judicial
proceeding for the partition of property held in
common. Steinbach v. Moore, 30 Cal. 505.
REPATRIATION, The regaining nationality aft-
er expatriation.
REPAVE. In reference to a street improvement
relates generally to a new pavement, either of the
same or different material, for the full width of
the street theretofore similarly improved, or for
some defined section thereof. Cleveland Ry. Co.
v. City of Cleveland, 97 Ohio St. 122, 119 N.E. 202,
203.
REPAY. To pay back; refund; restore; return.
Harlan Coal & Land Co. v. King Harlan Mining
Co., 192 Ky. 111, 232 S.W. 650, 654.
REPEAL. The abrogation or annulling of a pre-
viously existing law by the enactment of a subse-
quent statute which declares that the former law
shall be revoked and abrogated, (which is called
"express" repeal), or which contains provisions so
contrary to or irreconcilable with those of the
earlier law that only one of the two statutes can
stand in force, (called "implied" repeal.) Oakland
Pa y . Co. v. Hilton, 69 Cal. 479, 11 P. 3; Pacific
Milling & Elevator Co. v. City of Portland, 65
Or. 49, 133 P. 72, 78, 46 L.R.A.,N.S., 363. For
"Express Repeal", see that title.
"Repeal" of a law means its complete abrogation by the
enactment of a subsequent statute, whereas the "amend-
ment" of a statute means an alteration in the law already
existing, leaving some part of the original still standing.
State ex inf. Crain ex rel. Peebles v. Moore, 339 Mo. 492,
99 S.W.2d 17, 19.
REPEATERS. Persons who commit crime and
are sentenced, and then commit another and are
sentenced again. Opolich v. Fluckey, D.C.Ga., 47
F.2d 950.
REPELLITUR A SACRAMENTO INFAMIS. An
infamous person is repelled or prevented from
taking an oath. Co.Litt. 158; Bract. fol. 185.
REPELLITUR EXCEPTIONE CEDENDARUM
ACTIONUM. He is defeated by the plea that the
actions have been assigned. Cheesebrough v. Mil-
lard, 1 Johns.Ch. (N.Y.) 409, 414.
REPERTORY. In French law. The inventory or
minutes which notaries make of all contracts
which take place before them. Merl. Repert.
REPETITION. In the civil law. A demand or ac-
tion for the restoration of money paid under mis-
take, or goods delivered by mistake or on an un-
performed condition. Dig. 12, 6. See Solutio
Indebiti.
In Scotch law. The act of reading over a wit-
ness' deposition, in order that he may adhere to
it or correct it at his choice. The same as recole-
ment (q. v.) in the French law. 2 Benth.Jud.Ev.
239.
REPETITUM NAMIUM. A repeated, second, or
reciprocal distress; withernam. 3 Bl.Comm. 148.
REPETUNDJE, or PECUNLE REPETUNDAZE. In
Roman law. The terms used to designate such
sums 'of money as the socii of the Roman state,
or individuals, claimed to recover from magi&
tratus, judices, or publici curatores, which they
had improperly taken or received in the provin-
cice, or in the urbs Roma, either in the discharge
of their jurisdictio, or in their capacity of judices,
or in respect of any other public function. Some-
times the word "repetundce" was used to express
the illegal act for which compensation was sought.
Wharton.
REPETUNDARUM CRIMEN. In Roman law.
The crime of bribery or extortion in a magistrate,
or person in any public office. Calvin.
REPLACE. To place again, to restore to a for-
mer condition. Illinois Cent. R. Co. v. Franklin
County, 387 Ill. 301, 56 N.E.2d 775, 779.
REPLEAD. To plead anew; to file new pleadings.
REPLEADER. When, after issue has been joined
in an action, and a verdict given thereon, the
pleading is found (on examination) to have mis-
carried and failed to effect its proper object, viz.,
of raising an apt and material question between
the parties, the court will, on motion of the un-
successful party, award a repleader; that is, will
order the parties to plead de novo for the purpose
of obtaining a better issue. Brown.
Judgment of Repleader
A judgment allowed by the court to do justice
between the parties where defect is in form or
manner of stating the right, and the issue joined
is on an immaterial point, so that court cannot
tell for whom to give judgment. 1 Chit.P1. 687,
688. On the award of a repleader, the parties
must recommence their pleadings at the point
where the immaterial issue originated. This judg-
ment is interlocutory, quod partes replacitent.
REPLEGIARE. To replevy; to redeem a thing
detained or taken by another by putting in legal
sureties.
REPLEGIARE DE AVERIIS. Replevin of cattle.
A writ brought by one whose cattle were dis-
trained, or put in the pound, upon any cause by an-
other, upon surety given to the sheriff to prosecute
or answer the action in law. Cowell.
REPLEGIARI FACIAS. You cause to be re-
plevied. In old English law. The original writ
in the action of replevin; superseded by the stat-
ute of Marlbridge, c. 21. 3 Bl.Comm. 146.
REPLETION. In canon law. Where the revenue
of a benefice is sufficient to fill or occupy the
whole right or title of the graduate who holds
it. Wharton.
REPLEVIABLE, or REPLEVISABLE. Property
is said to be repleviable or replevisable when
proceedings in replevin may be resorted to for
the purpose of trying the right to such property.
REPLEVIN. A personal action ex delicto brought
to recover possession of goods unlawfully taken,
(generally, but not only, applicable to the taking
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REPLEVIN
of goods distrained for rent,) the validity of which
taking it is the mode of contesting, if the party
from whom the goods were taken wishes to have
them back in specie, whereas, if he prefer to have
damages instead, the validity may be contested
by action of trespass or unlawful distress. The
word means a redelivery to the owner of the
pledge or thing taken in distress. Wharton;
Sinnott v. Feiock, 165 N.Y. 444, 59 N.E. 265, 53
L.R.A. 565, 80 Am.St.Rep. 736; Healey v. Hum-
phrey, 81 F. 990, 27 C.C.A. 39. A local action
to be brought where property is taken or where
property is detained, unless statute regulates
matter. Miles v. Securities Inv. Co., 171 Tenn.
417, 104 S.W.2d 823. A possessory action, and
a plaintiff cannot recover on the weakness of
defendant's title, but must recover on the
strength of his own title. Hannibal Inv. Co. v.
Schmidt, Mo.App., 113 S.W.2d 1048, 1052. Car-
dinal question in a replevin action is plaintiff's
right to immediate possession of the property at
the commencement of the action. Warren v. Dris-
coll, 178 Minn. 344, 227 N.W. 199, 200.
Personal Replevin
A species of action to replevy a man out of
prison or out of the custody of any private per-
son. It took the place of the old writ de homine
replegiando; but, as a means of examining into
the legality of an imprisonment, it is now super-
seded by the writ of habeas corpus.
Replevin Bond
A bond executed to indemnify the officer who
executed a writ of replevin and to indemnify the
defendant or person from whose custody the prop-
erty was taken for such damages as he may sus-
tain. Imel v. Van Deren, 8 Colo. 90, 5 P. 803.
REPLEVISH. In old English law. To let one
to mainprise upon surety. Cowell.
REPLEVISOR. The plaintiff in an action of re-
plevin.
REPLEVY. In reference to the action of replevin,
to redeliver goods which have been distrained, to
the original possessor of them, on his pledging or
giving security to prosecute an action against the
distrainor for the purpose of trying the legality
of the distress. Also the bailing or liberating a
man from prison on his finding bail to answer for
his forthcoming at a future time. Brown.
REPLIANT, or REPLICANT. A litigant who re-
plies or files or delivers a replication.
REPLICARE. Lat. In the civil law and old Eng-
lish pleading. To reply; to answer a defendant's
plea.
REPLICATIO. Lat. In the civil law and old
English pleading. The plaintiff's answer to the
defendant's exception or plea; corresponding with
and giving name to the replication in modern
pleading. Inst. 4, 14, pr.
• REPLICATION. In pleading. A reply made by
the plaintiff in an action to the defendant's plea,
or in a suit in chancery to the defendant's answer.
General and Special
In equity practice, a general replication is a
general denial of the truth of defendant's plea or
answer, and of the sufficiency of the matter al-
leged in it to bar the plaintiff's suit, and an asser-
tion of the truth and sufficiency of the bill. A
special replication is occasioned by the defendant's
introducing new matter into his plea or answer,
which makes it necessary for the plaintiff to put
in issue some additional fact on his part in avoid-
ance of such new matter. James v. Lawson, 103
W.Va. 165, 136 S.E. 851, 853.
REPLY. In its general sense, that what the plain-
tiff, petitioner, or other person who has instituted
a proceeding says in answer to the defendant's
case. Sweet. Its office is to join issue or avoid
new matter in answer, and not to aid complaint
by supplying omission or adding new ground of
relief. Teisinger v. Hardy, 91 Mont. 9, 5 P.2d 219,
220.
On trial or argument. When a case is tried or
argued in court, the speech or argument of the
plaintiff in answer to that of the defendant. Un-
der the practice of the chancery and common-law
courts, to reply is to file or deliver a replication,
(q. v.). Under codes of reformed procedure, the
name of the pleading which corresponds to "re-
plication" in common-law or equity practice.
Frivolous or sham reply. For the distinction
between these two kinds of replies, see Frivolous.
REPONE. In Scotch practice. To replace; to
restore to a former state or right. 2 Alis. Crim.
Pr. 351.
REPORT. An official or formal statement of
facts or proceedings.
The formal statement in writing made to a
court by a master in chancery, a clerk, or referee,
as the result of his inquiries into some matter
referred to him by the court.
A "report" of a public official is distinguished from a
"return" of such official, in that "return" is typically con-
cerned with something done or observed by officer, while
"report" embodies result of officer's investigation not orig-
inally occurring within his personal knowledge. E. K.
Hardison Seed Co. V. Jones, C.C.A.6, 149 F.2d 252, 257.
The name is also applied (usually in the plural)
to the published volumes, appearing periodically,
containing accounts of the various cases argued
and determined in the courts with the decisions
thereon.
Lord Coke defines "report" to be "a public relation, or
a bringing again to memory cases judicially argued, de-
bated, resolved, or adjudged in any of the king's courts of
justice, together with such causes and reasons as were
delivered by the judges of the same." Co.Litt. 293.
REPORT FOR INDUCTION. Within the Selec-
tive Service Act, to present one's self not only
at the appointed place but also in readiness to go
through the process which constitutes induction
into the army. 'Selective Training and Service Act
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REPRESENTATION
of 1940, 50 U.S.C.A. Appendix § 301 et seq. Smith
v. U. S., C.C.A.S.C., 148 F.2d 288, 290.
REPORT OF LEGISLATIVE COMMITTEE.
That communication which the chairman of the
committee makes to the house at the close of the
investigation upon which it has been engaged.
Brown.
REPORT OFFICE. A department of the English
court of chancery. The suitors' account there is
discontinued by the 15 & 16 Vict. c. 87, § 36.
REPORTER. A person who reports the decisions
upon questions of law in the cases adjudged in the
several courts of law and equity. Wharton.
REPORTS, THE. The name given, par excel-
lence, to Lord Coke's Reports, from 14 Eliz. to 13
Jac. I., which are cited as "Rep." or "Coke."
They are divided into thirteen parts, and the mod-
ern editions are in six volumes, including the in-
dex.
REPOSITION OF THE FOREST. In old English
law. An act whereby certain forest grounds, be-
ing made purlieu upon view, were by a second
view laid to the forest again, put back into the
forest. Manwood; Cowell.
REPOSITORIUM. A storehouse or place where-
in things are kept; a warehouse. Cro.Car. 555.
REPRESENT. To appear in the character of;
personate; to exhibit; to expose before the eyes.
To represent a thing is to produce it publicly.
Dig. 10, 4, 2, 3; In re Matthews, 57 Idaho, 75, 62
P.2d 578, 580, 111 A.L.R. 13. To represent a per-
son is to stand in his place; to supply his place;
to act as his substitute. Plummer v. Brown, 64
Cal. 429, 1 P. 703; Seibert v. Dunn, 216 N.Y. 237,
110 N.E. 447, 449.
REPRESENTATION. Any conduct capable of be-
ing turned into a statement of fact. Scandrett v.
Greenhouse, 244 Wis. 108, 11 N.W.2d 510, 512.
Contracts
A statement express or implied made by one of
two contracting parties to the other, before or at
the time of making the contract, in regard to
some past or existing fact, circumstance, or state
of facts pertinent to the contract, which is influ-
ential in bringing about the agreement. Fernan-
dina Shipbuilding & Dry Dock Co. v. Peters, D.C.
Fla., 283 F. 621, 627; Kiser v. Richardson, 91 Kan.
812, 139 P. 373, Ann.Cas.1915D, 539.
Insurance
A collateral statement, either by writing not
inserted in the policy or by parol, of such facts
or circumstances, relative to the proposed adven-
ture, as are necessary to be communicated to the
underwriters, to enable them to form a just es-
timate of the risks. 1 Marsh.Ins. 450; Myers v.
Mutual Life Ins. Co. of New York, 83 W.Va. 390,
98 S.E. 424, 426. The allegation of any facts, by
the applicant to the insurer, or vice versa, pre-
li minary to making the contract, and directly
bearing upon it, having a plain and evident tend-
ency to induce the making of the policy. The
statements may or may not be in writing, and
may be either express or by obvious implication.
Augusta Insurance & Banking Co. of Georgia v.
Abbott, 12 Md. 348.
In relation to the contract of insurance, there is an im-
portant distinction between a representation and a war-
ranty. The former, which precedes the contract of insur-
ance, and is no part of it, need be only materially true ;
the latter is a part of the contract, and must be exactly
and literally fulfilled, or else the contract is broken and
inoperative. Glendale Woolen Co. v. Protection Ins. Co.,
21 Conn. 19, 54 Am. Dec. 309.
Law of Distribution and Descent
The principle upon which the issue of a deceas-
ed person take or inherit the share of an estate
which their immediate ancestor would have taken
or inherited, if living; the taking or inheriting
per stirpes. 2 Bl.Comm. 217, 517; In re Pater-
son's Estate, Cal.App., 76 P.2d 138, 143.
Scotch Law
The name of a plea or statement presented to a
lord ordinary of the court of session, when his
judgment is brought under review.
General
False representation. See False Representa-
tion.
Material representation. In life insurance.
One that would influence a prudent insurer in de-
termining whether or not to accept the risk, or in
fixing the amount of the premium in the event of
such acceptance. Empire Life Ins. Co. v. Jones,
14 Ga.App. 647, 82 S.E. 62, 66. Columbia-Knick-
erbocker Trust Co. v. Abbot, C.C.A.Mass., 247 F.
833, 857.
Misrepresentation. An intentional false state-
ment respecting a matter of fact, made by one of
the parties to a contract, which is material to
the contract and influential in producing it.
Promissory representation. A term used chief-
ly in insurance, and meaning a representation
made by the assured concerning what is to hap-
pen during the term of the insurance, stated as
a matter of expectation or even of contract, and
amounting to a promise to be performed after
the contract has come into existence. New Jer-
sey Rubber Co. v. Commercial Union Assur. Co.,
64 N.J.L. 580, 46 A. 777.
REPRESENTATION OF PERSONS. A fiction
of the law, the effect of which is to put the rep-
resentative in the place, degree, or right of the
person represented. Civ.Code La. art. 894.
REPRESENTATION, ESTOPPEL BY. It arises
when one by acts, representations, admissions, or
silence when he ought to speak out, intentionally
or through culpable negligence induces another
to believe certain facts to exist and such other
rightfully relies and acts on such belief, so that
he will be prejudiced if the former is permitted
to deny the existence of such facts. Carter v.
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REPRESENTATION
Curlew Creamery Co., 16 Wash.2d 476, 134 P.2d
66, '73. It differs from estoppel by record, deed,
or contract, in that it is not based on agreement of
parties or finding of fact which may not be dis-
puted, and is not mutual, but applies to only one
party. Bank of Canton & Trust Co. v. Clark, 198
N.C. 169, 151 S.E. 102, 104.
It is the effect of voluntary conduct of a party
whereby he is absolutely precluded, from assert-
ing rights which might perhaps have otherwise ex-
isted. Strand v. State, 16 Wash.2d 107, 132 P.2d
1011, 1015.
It is species of "equitable estoppel" or estoppel
by matter in pais. Frumin v. Chazen, 153 Tenn.
1, 282 S.W. 199, 201. See, also, Equitable Estoppel
and In Pais, Estoppel In.
Elements or essentials of such estoppel include change
of position for the worse, Carter v. Curlew Creamery Co.,
134 P.2d 66, 73, 16 Wash.2d 476; Campbell v. Salyer, 290
Ky. 493, 161 S.W.2d 596, 599; detriment or injury or preju-
dice to party claiming estoppel, Blaisdell Automobile Co.
v. Nelson, 130 Me. 167, 154 A. 184, 186; Abbott v. Bean,
295 Mass. 268, 3 N.E.2d 762, 768; express or implied rep-
resentations, Sandifer v. Sandifer's Heirs, La.App., 195 So.
118, 124; false representation, Chicago, R. I. & P. Ry. Co.
v. Sawyer, 176 Okl. 446, 56 P.2d 418, 420; Cushing v. United
States, D.C.Mass., 18 F.Supp. 83, 85; ignorance of facts by
party claiming estoppel, United States v. Dickinson, C.C.
A.Mass., 95 F.2d 65, 68; Cain v. Rea, 159 Va. 446, 166 S.E.
478, 483, 85 A.L.R. 945; inducement to action by party
claiming estoppel, Rhoads v. Rhoads, 342 Mo. 934, 119 S. W.
2d 247, 252; intent that other party should act on repre-
sentation or gross and culpable negligence of party sought
to be estopped, Cain v. Rea, 159 Va. 446, 166 S.E. 478, 483,
85 A.L.R. 945; Cleaveland v. Malden Sa y . Bank, 291 Mass.
295, 197 N.E. 14, 15; knowledge, actual or constructive, of
facts by person estopped, Rhoads v. Rhoads, 342 Mo. 934,
119 S.W.2d 247, 252; misleading of person claiming es-
toppel, Campbell v. Salyer, 290 Ky. 493, 161 S.W.2d 596,
599; Bosen v. Larrabee, 91 N.H. 492, 23 A.2d 331, 332;
reliance of one party on conduct of other party, Ouellette
v. City of New York Ins. Co., 133 Me. 149, 174 A. 462, 464;
Mosley v. Magnolia Petroleum Co., 45 N.M. 230, 114 P.2d
740, 751.
The doctrine ordinarily applies only to representations as
to past or present facts. In re Watson's Estate, 30 N.Y.
S.2d 577, 586, 177 Misc. 308.
REPRESENTATIVE. One who represents or
stands in the place of another. Lee v. Dill, 39
Barb. (N.Y.) 520; Staples v. Lewis, 71 Conn. 288,
41 A. 815.
The definition of a "person" liable for treble damages
for overcharges of commodity prices under the Emergency
Price Control Act, means the legal successor or representa-
tive, such as a receiver, liquidator, executor, administra-
tor, guardian or tutor, but not an agent. Emergency Price
Control Act of 1942, § 302(h), 50 U.S.C.A.Appendix, § 942
(h). Husers v. Papania, La.App., 22 So.2d 755, 757.
In constitutional law, a person chosen by the
people to represent their several interests in a
legislative body. Macrum v. Board of Sup'rs of
Suffolk County, 252 N.Y.S. 546, 143 Misc. 358.
Legal Representative
See that title.
Personal Representatives
Executors and administrators of person deceas-
ed; but it may have a wider meaning, according
to the intention of the person using it, and may
include heirs, next of kin, descendants, assignees,
grantees, receivers, and trustees in insolvency.
In re Wilcox & Howe Co., 70 Conn. 220, 39 A. 163;
Shiya v. Erickson, 156 Misc. 738, 282 N.Y.S. 812.
See, also, Real Representative, infra.
Real Representative
He who represents or stands in the place of an-
other, with respect to his real property, is so
termed, in contradistinction to him who stands
in the place of another, with regard to his per-
sonal property, and who is termed the "personal
representative." Thus the heir is the real repre-
sentative of his deceased ancestor. Brown.
Representative Action or Suits
See Class or Representative Action.
Representative Democracy
A form of government where the powers of the
sovereignty are delegated to a body of men, elect-
ed from time to time, who exercise them for the
benefit of the whole nation. 1 Bouv.Inst. no. 31.
Representative Peers
Those who, at the commencement of every new
parliament, are elected to represent Scotland and
Ireland in' the British house of lords; sixteen for
the former and twenty-eight for the latter coun-
try. Brown.
REPRIEVE. In criminal law. The withdrawing
of a sentence of death for an interval of time,
whereby the execution is suspended. 4 B1.Comm.
394. Sterling v. Drake, 29 Ohio St. 460, 23 Am.
Rep. 762; Gore v. Humphries, 163 Ga. 106, 135 S.
E. 481, 485.
Also the withdrawing of any sentence for a pe-
riod of time. Ex parte Dormitzer, 119 Or. 336, 249
P. 639, 640.
It does no more than stay the execution of a sentence for
a time, and it is ordinarily an act of clemency extended to
a prisoner to afford him an opportunity to procure some
amelioration of the sentence imposed. Palka v. Walker,
124 Conn. 121, 198 A. 265, 267. It cannot be granted until
after sentence. State ex rel. Gordon v. Zangerle, 136 Ohio
St. 371, 26 N.E.2d 190, 194.
REPRIMAND. A public and formal censure or
severe reproof, administered to a person in fault
by his superior officer or by a body to which he
belongs. Thus, a member of a legislative body
may be reprimanded by the presiding officer, in
pursuance of a vote of censure, for improper
conduct in the house. So a military officer, in
some cases, is punished by a reprimand adminis-
tered by his commanding officer, or by the secre-
tary of war.
REPRISALS. The forcible taking by one nation
of a thing that belonged to another, in return or
satisfaction for an injury committed by the lat-
ter on the former. Vattel, b. 2, c. 18, s. 342.
General Reprisals
Take place by virtue of commissions delivered
to officers and citizens of the aggrieved state, di-
recting them to take the persons and property be-
longing to the offending state wherever found.
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Negative Reprisals
Take place when a nation refuses to fulfil a
perfect obligation which it has contracted, or to
permit another state to enjoy a right which it
justly claims.
Positive Reprisals
Consist in seizing the persons and effects belong-
ing to the other nation, in order to obtain satis-
faction.
Special Reprisals
Such as are granted in times of peace to par-
ticular individuals who have suffered an injury
from the citizens or subjects of the other nation.
REPRISES. In English law. Deductions and du-
ties which are yearly paid out of a manor and
lands, as rent-charge, rent seck, pensions, cor-
rodies, annuities, etc., so that, when the clear year-
ly value of a manor is spoken of, it is said to be
so much per annum ultra reprisas,—besides all
reprises. Cowell. Delaware & H. Canal CO. v.
Von Storch, 196 Pa. 102, 46 A. 375.
REPROBATA PECUNIA LIBERAT SOLVEN-
TEM. Money refused [the refusal of money ten-
dered] releases him who pays, [or tenders it.] 9
Coke, 79a.
REPROBATION. In ecclesiastical law. The in-
terposition of objections or exceptions; as to the
competency of witnesses, to the due execution of
instruments offered in evidence and the like.
REPROBATOR, ACTION OF. In Scotch law.
An action or proceeding intended to convict a, wit-
ness of perjury, to which the witness must be
made a party. Bell.
REP-SILVER. In old records. Money paid by
servile tenants for exemption from the customary
duty of reaping for the lord. Cowell.
REPUBLIC. A commonwealth; that form of
government in which the administration of af-
fairs is open to all the citizens. In another sense,
it signifies the state, independently of its form of
government. 1 Toullier 28 and n., 202, note; State
v. Harris, 2 Bailey (S.C.) 599; Co.Litt. 303.
REPUBLICAN GOVERNMENT. A government
in the republican form; a government of the peo-
ple; a government by representatives chosen by
the people. In re Duncan, 11 S.Ct. 573, 139 U.S.
449, 35 L.Ed. 219; Kadderly v. Portland, 44 Or. 118,
74 P. 710.
REPUBLICATION. The re-execution or re-estab-
lishment by a testator of a will which he had once
revoked. A second publication of a will, either
expressly or by construction. For "Express Re-
publication," see that title.
REPUDIATE. To put away, reject, disclaim, or
renounce a right, duty, obligation, or privilege.
REPUDIATION. Rejection; disclaimer; renun-
ciation; the rejection or refusal of an offered or
available right or privilege, or of a duty or rela-
tion. Iowa State Sa y . Bank v. Black, 59 N.W. 283,
91 Iowa, 490; Daley v. Saving Ass'n, 178 Mass.
13, 59 N.E. 452.
Repudiation of contract is in nature of anticipatory
breach before performance is due, but does not operate as
anticipatory breach unless promisee elects to treat repudia-
tion as breach, and brings suit for damages. Such repudia-
tion is but act or declaration in advance of any actual
breach and consists usually of absolute and unequivocal
declaration or act amounting to declaration on part of
promisor to promisee that he will not make performance
on future day at which contract calls for performance.
Robinson v. Raquet, 1 Cal.App.2d 533, 36 P.2d 821, 825.
The refusal on the part of a state or govern-
ment to pay its debts, or its declaration that its
obligations, previously contracted, are no longer
regarded by it as of binding force.
In the civil law. The casting off or putting
away of a woman betrothed; also, but less usual-
ly, of a wife; divorcement.
In ecclesiastical law. The refusal to accept a
benefice which has been conferred upon the par-
ty repudiating.
REPUDIUM. Lat. In Roman law. A breaking
off of the contract of espousals, or of a marriage
intended to be solemnized. Sometimes translat-
ed "divorce;" but this was not the proper sense.
Dig. 50, 16, 191.
REPUGNANCY. An inconsistency, opposition, or
contrariety between two or more clauses of the
same deed, contract, or statute, or between two
or more material allegations of the same plead-
ing, or any two writings. Lehman v. U. S., C.C.
A.N.Y., 127 F. 45, 61 C.C.A. 577; Swan v. U. S., 9
P. 931, 3 Wyo. 151; Hansen v. Bacher, Tex.Com.
App., 299 S.W. 225, 226.
REPUGNANT. That which is contrary to what
is stated before, or insensible. A repugnant con-
dition is void. Groenendyk v. Fowler, 204 Iowa,
598, 215 N.W. 718, 720.
REPUTABLE. Worthy of repute or distinction,
held in esteem, honorable, praiseworthy. Illinois
State Board of Dental Examiners v. People, 123
Ill. 245, 13 N.E. 201.
REPUTABLE CITIZEN. One who is well spoken
of by his neighbors and hence presumably of good
character. H. L. Shaffer & Co. v. Prosser, 99
Colo. 335, 62 P.2d 1161, 1163.
REPUTATIO EST VULGARIS OPINIO UBI NON
EST VERITAS. ET VULGARIS OPINIO EST
DUPLEX, SCIL.: OPINIO VULGARIS ORTA
INTER GRAVES ET DISCRETOS HOMINES, ET
QUIE VULTUM VERITATIS HABET; ET OPIN-I0 TANTUM ORTA INTER LEVES ET VUL-GARES HOMINES, ABSQUE SPECIE VERITA-
TIS. Reputation is common opinion where there
is not truth. And common opinion is of two kinds,
to-wit: Common reputation arising among grave
and sensible men, and which has the appearance
of truth; and mere opinion arising among foolish
and ignorant men, without any appearance of
truth. 4 Coke, 107.
REPUTATION. Estimation in which one is held,
the character imputed to a person in the neigh-
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borhood where he lives. State v. Baldanzo, 106
N.J.L. 498, 148 A. 725, 726, 67 A.L.R. 1207. Gener-
al opinion, good or bad, held of a person by those
of the community in which he yesides. State v.
Kiziah, 217 N.C. 399, 8 S.E.2d 474, 477; Citizens
Bank of Morehead v. Hunt, 287 Ky. 646, 154 S.W.
2d 730, 731; it is necessarily based upon hearsay.
Stewart v. State, 148 Tex.Cr.App. 480, 188 S.W.
2d 167, 170.
"Character" is made up of the things an individual actu-
ally is and does whereas ."reputation" is what people think
an individual is and what they say about him. McNaulty
v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987, 989; James v.
State, ex rel. Loser, 24 Tenn. App. 453, 145 S.W.2d 1026,
1033.
In the law of evidence, matters 6f public and
general interest, such as the boundaries of coun-
ties or towns, rights of common, claims of high-
way, etc., are allowed to be proved by general
reputation; e. g., by the declaration of deceased
persons made ante litem motam, by old docu-
ments, etc., notwithstanding the general rule
against secondary evidence. Best, Ev. 632.
REPUTED. Accepted by general, vulgar, or pub-
lic opinion. Thus, land may be reputed part of a
manor, though not really so, and a certain district
may be reputed a parish or a manor, or be a par-
ish or a manor in reputation, although it is in real-
ity no parish or manor at all. Brown; Lowell
Hardware Co. v. May, 59 Colo. 475, 149 P. 831, 833.
REPUTED OWNER. See Owner.
REQUEST, v. To ask for something or for per-
mission or authority to do, see, hear, etc., some-
thing; to solicit; and is synonymous with beg,
entreat, and beseech. Artificial Ice & Cold Stor-
age Co. v. Martin, 102 Ind.App. 74, 198 N.E. 446,
449.
In its ordinary or natural meaning when used in a will,
is precatory and not mandatory. Byars v. Byars, 143 Tex.
10, 182 S.W.2d 363, 364, 366.
REQUEST, n. An asking or petition; the ex-
pression of a desire to some person for something
to be granted or done; particularly for the pay-
ment of a debt or performance of a contract;
also direction or command in law of wills. Beak-
ey v. Knutson, 90 Or. 574, 174 P. 1149, 1150; Hur-
ley-Tobin Co. v. White, 84 N.J.Eq. 60, 188, 94
A. 52, 53. For "Express Request," see that title.
The two words, "request" and "require," as used in no-
tices to creditors to present claims against an estate, are
of the same origin, and virtually synonymous. Prentice v.
Whitney, 8 Hun, N.Y., 300.
Pleading
The statement in the . plaintiff's declaration that
the particular payment or performance, the fail-
ure of which constitutes the cause of action, was
duly requested or demanded of the defendant.
General
Request, letters of. In English law. Many
suits are brought before the Dean of the Arches
as original judge, the cognizance of which prop-
erly belongs to inferior jurisdictions within the
province, but in respect of which the inferior
judge has waived his jurisdiction under a certain
form of proceeding known ih the canon law by
the denomination of "letters of request." 3 Steph.
Comm. 306.
Request note. In English law. A note request-
ing permission to remove dutiable goods from one
place to another without paying the excise.
Requests, courts of. See Courts of Requests.
Special request. A request actually made, at a
particular time and place. This term is used in
contradistinction to a general request, which need
not state the time when nor place where made.
3 Bouv.Inst. no. 2843.
REQUIRE. To direct, order, demand, instruct,
command, claim, compel, request, need, exact.
Beakey v. Knutson, 90 Or. 574, 174 P. 1149, 1150.
Union Mut. Ins. Co. v. Page, 65 Okl. 101, 164 P.
116, 117, L.R.A.1918C, 1; State ex rel. Frohmiller
v. Hendrix, 59 Ariz. 184, 124 P.2d 768, 773.
REQUIREMENT CONTRACT. A contract in
writing whereby one agrees to buy, for a suffi-
cient consideration, all the merchandise of a desig-
nated type which the buyer may require for use
in his own established business. Such contract
is not void for uncertainty. Fuchs v. United Mo-
tor Stage Co., 135 Ohio St. 509, 21 N.E.2d 669, 672.
REQUISITION. A demand in writing, or formal
request or requirement. Atwood v. Charlton, 21
RI. 568, 45 A. 580.
The taking or seizure of property by govern-
ment. Benedict v. U. S., D.C.N.Y., 271 F. 714.
In international law. The formal demand by
one government upon another, or by the governor
of one of the United States upon the governor of
a sister state, of the surrender of a fugitive crim-
inal.
In Scotch law. A demand made by a creditor
that a debt be paid or an obligation fulfilled. Bell.
REQUISITIONS ON TITLE, in English convey-
ancing, are written inquiries made by the solicitor
of an intending purchaser of land, or of any es-
tate or interest therein, and addressed to the ven-
dor's solicitor, in respect of some apparent insuf-
ficiency in the abstract of title. Mozley & Whit-
ley.
REREFIEFS. In Scotch law. Inferior fiefs;
portions of a fief or feud granted out to inferior
tenants. 2 Bl.Comm. 57.
RERUM ORDO CONFUNDITUR SI UNICUIQUE
JURISDICTIO NON SERVETUR. 4 Inst. Proem.
The order of things is confounded if every one
preserve not his jurisdiction.
RERUM PROGRESSUS OSTENDUNT MULTA,
QUAZE IN INITIO PRIECAVERI SEU PRIEVID-
ERI NON POSSUNT. 6 Coke, 40. The progress
of events shows many things which, at the begin-
ning, could not be guarded against or foreseen.
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RERUM SUARUM QUILIBET EST MODERA-
TOR ET ARBITER. Every one is .the regulator
and disposer of his own property. Co.Litt. 223a.
RES. Lat. In the civil law. A thing; an object.
As a term of the law, this word has a very wide
and extensive signification, including not only
things which are objects of property, but also
such as are not capable of individual ownership.
Inst. 2, 1, pr. And in old English law it is said
to have a general import, comprehending both
corporeal and incorporeal things of whatever kind,
nature, or species. 3 Inst. 182- Bract. fol. 7b.
By "res," according to the modern civilians, is
meant everything that may form an object of
rights, in opposition to "persona," which is re-
garded as a subject of rights. "Res," therefore, in
its general meaning, comprises actions of all
kinds; while in its restricted sense it compre-
hends every object of right, except actions. Mack-
eld. Rom. Law, § 146. This has reference to the
fundamental division of the Institutes, that all
law relates either to persons, to things, or to ac-
tions. Inst. 1, 2, 12.
In modern usage, the term is particularly ap-
plied to an object, subject-matter, or status, con-
sidered as the defendant in an action, or as the
object against which, directly, proceedings are
taken. Thus, in a prize case, the captured ves-
sel is "the res." And proceedings of this charac-
ter are said to be in rem. (See In Personam;
In Rem.) "Res" may also denote the action or
proceeding, as when a cause, which is not be-
tween adversary parties, is entitled "In re
Classification
Things (res) have been variously divided and
classified in law, e. g., in the following ways: (1)
Corporeal and incorporeal things; (2) movables
and immovables; (3) res mancipi and res nec
mancipi; (4) things real and things personal;
(5) things in possession and choses (i. e., things)
in action; (6) fungible things and things not
fungible, (fungibiles vel non fungibiles;) and
(7) res singulce (i. e., individual objects) and uni-
versitates rerum, (i. e., aggregates of things.)
Also persons are for some purposes and in certain
respects regarded as things. Brown.
General
Res accessoria. In the civil law. An accessory
thing; that which belongs to a principal thing,
or is in connection with it.
Res adiratee. The gist of the old action for res
adiratce was the fact that the plaintiff had lost
his goods, that they had come into the hands of
the defendant, and that the defendant, on request,
refused to give them up. 3 Holdsw.Hist.E.L. 275.
Res adjudicata. A common but indefensible
misspelling of res judicata. The latter term des-
ignates a point or question or subject-matter
which was in controversy or dispute and has been
authoritatively and finally settled by the decision
of a court; that issuable fact once legally deter-
mined is conclusive as between parties in same ac-
tion or subsequent proceeding. Tiffany Produc-
tion of California v. Superior Court of California
for Los Angeles County, 131 Cal.App. 729, 22 P.
2d 275.
Res adjudicata (if there be such a term) could
only mean an article or subject of property
"awarded to" a. given person by the judgment of
a court, which might perhaps be the case in re-
plevin and similar actions.
Res caduca. In the civil law. A fallen or es-
cheated thing; an escheat. Hallifax, Civil Law,
b. 2, c. 9, no. 60.
Res communes. In the civil law. Things com-
mon to all; that is, those things which are used
and enjoyed by every one, even in single parts,
but can never be exclusively acquired as a whole,
e. g., light and air. Inst. 2, 1, 1; Mackeld. Rom.
Law, § 169.
Res controversa. In the civil law. A matter
controverted; a matter in controversy; a point in
question; a question for determination. Calvin.
Res coronae. In old English law. Things of the
crown; such as ancient manors, homages of the
king, liberties, etc. Fleta, lib. 3, c. 6, § 3.
Res corporales. In the civil law. Corporeal
things; things which can be touched, or are per-
ceptible to the senses. Dig. 1, 8, 1, 1; inst. 2, 2;
Bract. fols. 7b, 10b, 13b.
Res derelicta. Abandoned property; property
thrown away or forsaken by the owner, so as to
become open to the acquisition of the first taker
or occupant. Rhodes v. Whitehead, 27 Tex. 313,
84 Am.Dec. 631.
Res fungibiles. In the civil law. Fungible
things, things of such a nature that they can be
replaced by equal quantities and qualities when
returning a loan or delivering goods purchased,
for example, so many bushels of wheat or so many
dollars; but a particular horse or a particular
jewel would not be of this character.
Res furtivie. In Scotch law. Goods which have
been stolen. Bell.
Res gestoe. Things done. McClory v. Schnei-
der, Tex.Civ.App., 51 S.W.2d 738, 741. Those cir-
cumstances which are the automatic and unde-
signed incidents of a particular litigated act, which
may be separated from act by lapse of time more
or less appreciable, and which are admissible
when illustrative of such act. The whole of the
transaction under investigation and every part
of it. Res gestEe is considered as an exception to
the hearsay rule. In its operation it renders acts
and declarations which constitute a part of the
things done and said admissible in evidence, even
though they would otherwise come within the rule
excluding hearsay evidence or self-serving declara-
tions. The rule is extended to include, not only
declarations by the parties to the suit, but includes
statements made by bystanders and strangers, un-
der certain circumstances. Edwards v. West Tex-
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as Hospital, Tex.Civ.App., 89 S.W.2d 801, 809;
Slayback Van Order Co. v. Eiben, 177 A. 671, 673,
115 N.J.L. 17. For evidence to be admissible as res
gestfe, there must be an act in itself admissible in
the case independently of the declaration that ac-
companies it; a declaration uttered simultaneous-
ly, or almost simultaneously, with the occurrence
of the act; and the explanation of the act by what
is said when it happens. Staley v. Royal Pines
Park, 202 N.C. 155, 162 S.E. 202, 203.
Test as to whether declaration is part of res Best a de-
pends on whether declaration was facts talking through
party or party talking about facts. Batchelor v. Atlantic
Coast Line R. Co., 196 N.C. 84, 144 S.E. 542, 544, 60 A.L.R.
1091.
"Res gestae", while often spoken of as an exception to
the hearsay rule, is generally not such in fact but ordi-
narily it relates to statements which because of their in-
timate relation to facts become a part of those facts and
are therefore admitted as such. Industrial Commission of
Colorado v. Fotis, 112 Colo. 423, 149 P.2d 657, 659.
Res habiles. In the civil law, things which are
prescriptible; things to which a lawful title may
be acquired by ordinary prescription.
Res immobiles. In the civil law. Immovable
things; including land and that which is connect-
ed therewith, either by nature or art, such as trees
and buildings. Mackeld. Rom. Law, § 160.
Res incorporales. In the civil law. Incorporeal
things; things which cannot be touched; such as
those things which consist in right. Inst. 2, 2;
Bract. fols. 7b, 10b. Such things as the mind alone,can perceive.
Res integra. A whole thing; a new or un-
opened thing. The term is applied to those points
of law which have not been decided, which are
untouched by dictum or decision. 3 Mer. 269.
Res inter alios acta. A thing done between
others, or between third parties or strangers.
Chicago, etc., R. Co. v. Schmitz, 211 Ill. 446, 71
N.E. 1050.
Res ipsa loquitur. The thing speaks for itself.
Rebuttable presumption that defendant was neg-
ligent, which arises upon proof that instrumental-
ity causing injury was in defendant's exclusive
control, and that the accident was one which
ordinarily does not happen in absence of negli-
gence. Sliwowski v. New York, N. H. & H. R. Co.,
'94 Conn. 303, 108 A. 805, 807; Poth v. Dexter
Horton Estate, 140 Wash. 272, 248 P. 374, 375;
Pearson v. Butts, 224 Iowa 376, 276 N.W. 65, 67.
Res judicata. A matter adjudged; a thing judi-
cially acted upon or decided; a thing or matter
settled by judgment. A phrase of the civil law,
constantly quoted in the books. Epstein v. Soskin,
86 Misc.Rep. 94, 148 N.Y.S. 323, 324; Rule that
final judgment or decree on merits by court of
competent jurisdiction is conclusive of rights of
parties or their privies in all later suits on points
and matters determined in former suit. American
S. S. Co. v. Wickwire Spencer Steel Co., D.C.N.Y.,
8 F.Supp. 562, 566. And to be applicable, requires
identity in thing sued for as well as identity of
cause of action, of persons and parties to action,
and of quality in persons for or against whom
claim is made. Freudenreich v. Mayor and Coun-
cil of Borough of Fairview, 114 N.J.L. 290, 176
A. 162, 163. The sum and substance of the whole
rule is that a matter once judicially decided is
finally decided. Massie v. Paul, 263 Ky. 183, 92 S.
W.2d 11, 14. See, also, Res Adjudicata, supra.
Estoppel and res judicata distinguished. See Es-
toppel.
Res litigiosa. In Roman law, things which are
in litigation; property or rights which constitute
the subject-matter of a pending action.
Res mancipi. See Mancipi Res.
Res mobiles. In the civil law. Movable things;
things which may be transported from one place
to another, without injury to their substance and
form. Things corresponding with the chattels
personal of the common law. 2 Kent, Comm. 347.
Res nova. A new matter; a new case; a ques-
tion not before decided.
Res nullius. The property of nobody. A thing
which has no owner, either because a former own-
er has finally abandoned it, or because it has
never been appropriated by any person, or be-
cause (in the Roman law) it is not susceptible of
private ownership.
Res periit domino. A phrase used to express
that, when a thing is lost or destroyed, it is lost
to the person who was the owner of it at the time.
Broom, Max. 238.
Res privates. In the civil law. Things the prop-
erty of one or more individuals. Mackeld. Rom.
Law, § 157.
Res publica. Things belonging to the public;
public property; such as the sea, navigable rivers,
highways, etc.
Res quotidiana. Every-day matters; familiar
points or questions.
Res religiosm. Things pertaining to religion.
In Roman law, especially, burial-places, which
were regarded as sacred, and could not be the sub-
jects of commerce.
Res sacra. In the civil law. Sacred things.
Things consecrated by the pontiffs to the service
of God; such as sacred edifices, and gifts or of-
ferings. Inst. 2, 1, 8. Chalices, crosses, censers.
Bract. fol. 8.
Res sancta. In the civil law. Holy things;
such as the walls and gates of a city. Inst. 2, 1,
10. Walls were said to be holy, because any of-
fense against them was punished capitally. Bract.
fol. 8.
Res universitatis. In the civil law. Things be-
longing to a community, (as, to a municipality,)
the use and enjoyment of which, according to
their proper purpose, is free to every member of
the community, but which cannot be appropriated
to the exclusive use of any individual; such as
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the public buildings, streets, etc. Inst. 2, 1, 6;
Mackeld. Rom. Law, § 770.
RES ACCENDENT LUMINA REBUS. One thing
throws light upon others. Odgen v. Gibbons, 4
Johns.Ch. (N.Y.) 149.
RES ACCESSORIA SEQUITUR REM PRINCI-
PALEM. Broom, Max. 491. The accessory fol-
lows the principal.
RES DENOMINATUR • A PRINCIPALI PARTE.
9 Coke, 47. The thing is named from its princi-
pal part.
RES EST MISERA UBI JUS EST VAGUM ET
INCERTUM. 2 Salk. 512. It is a wretched state
of things when law is vague and mutable.
RES GENERALEM HABET SIGNIFICATIONEM
QUIA TAM CORPOREA QUAM INCORPOREA
CUJUSCUNQUE SUNT GENERIS, NATURIE,
SIVE SPECIE!, COMPREHENDIT. 3 Inst. 182.
The word "thing" has a general signification, be-
cause it comprehends corporeal and incorporeal
objects, of whatever nature, sort, or species.
RES INTER ALIOS ACTA ALTERI NOCERE
NON DEBET. Things done between strangers
ought not to injure those who are not parties to
them. Co.Litt. 132; Broom, Max. 954, 967.
RES INTER ALIOS JUDICATIE NULLUM ALIOS
PRIEJUDICIUM FACIUNT. Matters adjudged in
a cause do not prejudice those who were not par-
ties to it. Dig. 44, 2, 1.
RES JUDICATA FACIT EX ALBO NIGRUM;
EX NIGRO, ALBUM; EX CURVO, RECTUM;
EX RECTO, CURVUM. A thing adjudged [the
solemn judgment of a court] makes white, black;
black, white; the crooked, straight; the straight,
crooked. 1 Bouv. Inst. no. 840.
RES JUDICATA PRO VERITATE ACCIPITUR.
A matter adjudged is taken for truth. Dig. 50, 17,
207. A matter decided or passed upon by a court
of competent jurisdiction is received as evidence
of truth. 2 Kent, Comm. 120.
RES NULLIUS NATURALITER FIT PRIM! 0C-
CUPANTIS. A thing which has no owner natur-
ally belongs to the first finder.
RES PER PECUNIAM 1ESTIMATUR, ET NON
PECUNIA PER REM. 9 Coke, 76. The value of
a thing is estimated according to its worth in mon-
ey, but the value of money is not estimated by ref-
erence to a thing.
RES PROPRIA EST QUIE COMMUNIS NON
EST. A thing is private which is not common.
Le Breton v. Miles, 8 Paige (N.Y.) 261, 270.
RES QUIE INTRA PRIESIDIA PERDUCTIE
NONDUM SUNT, QUANQUAM AB HOSTIBUS
OCCUPATZE, IDEO POSTLIMINII NON EGENT,
QUIA DOMINUM NONDUM MUTURUNT EX
GENTIUM JURE. Things which have not yet
been introduced within the enemy's lines, although
held by the enemy, do not need the fiction of
postliminy on this account, because their owner-ship by, the law of nations has not yet changed.Gro, de Jure B. 1. 3, c. 9, § 16; Id. 1. 3, c. 6, § 3.
RES SACRA NON RECIPIT IESTIMATIONEM.
A sacred thing does not admit of valuation: Dig.
1, 8, 9, 5.
RES SUA NEMINI SERVIT. 4 Macq.H.L.Cas.151. No one can have a servitude over his own
property.
RES TRANSIT CUM SUO ONERE. The thing
passes with its burden. Where a thing has been
incumbered by mortgage, the incumbrance follows
it wherever it goes. Bract, fols. 47b, 48.
RESALE. Where a person who has sold goods or
other property to a purchaser sells them again to
some one else. Sometimes a vendor reserves the
right of reselling if the purchaser commits default
in payment of the purchase money, and in some
cases (e. g., on a sale of perishable articles) the
vendor may do so without having reserved the
right. Sweet.
RESCEIT. In old English practice. An admission
or receiving a third person to plead his right in
a cause formerly commenced between two others;
as, in an action by tenant for life or years, he in
the reversion might come in and pray to be re-
ceived to defend the land, and to plead with the
demandant. Cowell.
RESCEIT OF HOMAGE. The lord's receiving
homage of his tenant at his admission to the land.
Kitch. 148.
RESCIND. To abrogate, annul, avoid, or cancel
a contract; particularly, nullifying a contract by
the act of a party. Vaughn v. Fey, 47 Cal.App.
485, 190 P. 1041, 1042; Pearson v. Brown, 27 Cal.
App. 125, 148 P. 956, 958. To declare a contract
void in its inception and to put an end to it as
though it never were. Russell v. Stephens, 191
Wash. 314, 71 P.2d 30, 31. Not merely to termi-
nate it and release parties from further obliga-
tions to each other but to abrogate it from the
beginning and restore parties to relative positions
which they would have occupied had no contract
ever been made. Wall v. Zynda, 283 Mich. 260,
278 N.W. 66, 68, 114 A.L.R. 1521; Sylvania Indus-
trial Corporation v. Lilienfeld's Estate, C.C.A.Va.,
132 F.2d 887, 892, 145 A.L.R. 612.
RESCISSIO. Lat. In the civil law. An annul-
ling; avoiding, or making void; abrogation; re-
scission. Cod. 4, 44.
In Spanish law, nullity is divided into absolute and rela-
tive. The former is that which arises from a law, whether
civil or criminal, the principal motive for which is the
public interest; and the latter is that which affects only
certain individuals.  "Nullity" is not to be confounded
with "rescission." Nullity takes place when the act is af-
fected by a radical vice, which prevents it from producing
any effect; as where an act is in con traventioR of the laws
or of good morals, or where it has been executed by a per-
son who cannot be supposed to have any will, as a child
under the age of seven years, or a madman, (un nino
demente. ) Rescission is where an act, valid in appearance,
nevertheless conceals a defect, which may make it null, if
demanded by any of the parties; as, for example, mistake,
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RESCISSION
force, fraud, deceit, want of sufficient age, etc. Nullity
relates generally to public order, and cannot therefore be
made good either by ratification or prescription; so that
the tribunals ought, for this reason alone, to decide that
the null act can have no effect, without stopping to inquire
whether the parties to it have or have not received any
injury. Rescission, on the contrary, may be made good by
ratification or by the silence of the parties ; and neither of
the parties can demand it, unless he can prove that he has
received some prejudice or sustained some damage by the
act. Sunol v. Hepburn, 1 Cal. 281, citing Escriche.
RESCISSION OF CONTRACT. Annulling or ab-
rogation or unmaking of contract and the placing
of the parties to it in status quo. Sessions v.
Meadows, 13 Cal.App.2d 748, 57 P.2d 548, 549.
Runde v. O'Brian, 214 Iowa 921, 243 N.W. 594, 595.
It necessarily involves a repudiation of the con-
tract and a refusal of the moving party to be fur-
ther bound by it. Wall v. Zynda, 283 Mich. 260,
278 N.W. 66, 68, 114 A.L.R. 1521.
RESCISSORY ACTION. In Scotch law. One to
rescind or annul a deed or contract.
RESCOUS. Rescue. The taking back by force
goods which had been taken under a distress, or
the violently taking away a man who is under
arrest, and setting him at liberty, or otherwise
procuring his escape, are both so denominated.
This was also the name of a writ which lay in
cases of rescue. Co.Litt. 160; 3 Bl.Comm. 146;
Fitzh.Nat.Brev. 100; 6 Mees. & W. 564.
RESCRIPT. In canon law. A term including any
form of apostolical letter emanating from the
pope. The answer of the pope in writing. Dict.
Droit Can.
At common law. A counterpart, duplicate, or
copy.
In American law. A written order from the
court to the clerk, giving directions concerning
the further disposition of a case. Pub.St.Mass. p.
1295. The written statement by an appellate court
of its decision in a case, with the reasons therefor,
sent down to the trial court.
In the civil law. A species of imperial consti-
tutions, being the answers of the prince in in-
dividual cases, chiefly given in response to in-
quiries by parties in relation to litigated suits, or
to inquiries by the judges, and which became rules
for future litigated or doubtful legal questions.
Mackeld. Rom. Law, § 46.
RESCRIPTION. In French law. A letter by
which one requests some one to pay a certain sum
of money, or to account for him to a third person
for it. Poth. Cont. de Change, no. 225.
RESCRIPTUM. Lat. In the civil law. A species
of imperial constitution, in the form of an answer
to some application or petition; a rescript. Cal-
vin.
RESCUE. At common law. Forcibly and know-
ingly freeing another from arrest or imprisonment
without any effort by prisoner to free himself.
Merrill v. State, 42 Ariz. 341, 26 P.2d 110. The un-
lawfully or forcibly taking back goods which have
been taken under a distress for rent, damage feas-
ant, etc. Hamlin v. Mack, 33 Mich. 108.
In admiralty and maritime law. The deliver-
ance of property taken as prize, out of the hands
of the captors, either when the captured party
retake it by their own efforts, or when, pending
the pursuit or struggle, the party about to be
overpowered receive reinforcements, and so es-
cape capture.
RESCUE DOCTRINE. Under this doctrine, one
injured in voluntary attempt to rescue a person
whose life is imperiled by negligence of another
may recover from the negligent person if the at-
tempted rescue be not an act of extreme reckless-
ness. Rovinski v. Rowe, C.C.A.Mich., 131 F.2d
687, 692, 693.
RESCUSSOR. In old English law. A rescuer;
one who commits a rescous. Cro.Jac. 419; Cow-
ell.
RESCYT. L. Fr. Resceit; receipt; the receiving
or harboring a felon, after the commission of a
crime. Britt. c. 23.
RESEALING WRIT. In English law. The second
sealing of a writ by a master so as to continue it,
or to cure it of an irregularity.
RESERVANDO. Reserving. In old conveyanc-
ing. An apt word of reserving a rent. Co.Litt.
47a.
RESERVATIO NON DEBET ESSE DE PROFI-
CUIS IPSIS, QUIA EA CONCEDUNTUR, SED
DE REDITU NOVO EXTRA PROFICUA. A res-
ervation ought not to be of the profits themselves,
because they are granted, but from the new
rent, apart from the profits. Co.Litt. 142.
RESERVATION. A clause in a deed or other in-
strument of conveyance by which the grantor
creates, and reserves to himself, some right, in-
terest, or profit in the estate granted, which had
no previous existence as such, but is first called
into being by the instrument reserving it; such
as rent, or an easement. In re Narragansett In-
dians, 20 R.I. 715, 40 A. 347; Smith v. Cornell
University, 21 Misc. 220, 45 N.Y.S. 640; Johnson
v. Peck, 90 Utah 544, 63 P.2d 251.
For exception and reservation distinguished,
see Exception.
Public Land Laws of the United States
A reservation is a tract of land, more or less
considerable in extent, which is by public author-
ity withdrawn from sale or settlement, and ap-
propriated to specific public uses; such as parks,
military posts, Indian lands, etc. Jackson v.
Wilcox, 2 Ill. 344; Meehan v. Jones, C.C.Minn.,
70 F. 455.
Practice
The reservation of a point of law is the act of
the trial court in setting it aside for future con-
sideration, allowing the trial to proceed meanwhile
as if the question had been settled one way, but
subject to alteration of the judgment in case the
court in banc should decide it differently.
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RESERVE, v. To keep back, to retain, to keep in
store for future or special use, and to retain or
hold over to a future time. Commissioner of In-
ternal Revenue v. Strong Mfg. Co., C.C.A.6, 124 F.
2d 360, 363.
RESERVE, n. In insurance law. A sum of mon-
ey, variously computed or estimated, which, with
accretions from interest, is set aside as a fund
with which to mature or liquidate by payment
or reinsurance with other companies future un-
accrued and contingent claims, and claims ac-
crued but contingent and indefinite as to amount
or time of payment. Royal Highlanders v. Com-
missioner of Internal Revenue, C.C.A.8, 138 F.2d
240, 242, 244.
RESERVED LAND. Public land that has been
withheld or kept back from sale or disposition.
Donley v. Van Horn, 49 Cal.App. 383, 193 P. 514,
516.
RESET. The receiving or harboring an outlawed
person. Cowell.
Reset of Theft
In Scotch law. The receiving and keeping
stolen goods, knowing them to be stolen, with
a design of feloniously retaining them from the
real owner. Alis. Crim. Law, 328.
RESETTER. In Scotch law. A receiver of stolen
goods knowing them to have been stolen.
RESETTLEMENT. The reopening of an order
or decree for the purpose of including therein
some recital or provision which should have been
included and was initially omitted through inad-
vertence. In re Bartlett's Will, 299 N.Y.S. 316,
317, 164 Misc. 524.
RESIANCE. Residence, abode, or continuance.
RESIANT. In old English law. Continually
dwelling or abiding in a place; resident; a resi-
dent. Kitchin, 33; Cowell.
RESIANT ROLLS. Those containing the resiants
in a tithing, etc., which are to be called over by
the steward on holding courts leet.
RESIDE. Live, dwell, abide, sojourn, stay, re-
main, lodge. Western-Knapp Engineering Co. v.
Gilbank, C.C.A.Cal., 129 F.2d 135, 136.
RESIDENCE. A factual place of abode. Living
in a particular locality. Reese v. Reese, 179 Misc.
665, 40 N.Y.S.2d 468, 472; Zimmerman v. Zim-
merman, 175 Or. 585, 155 P.2d 293, 295. It re-
quires only bodily presence as an inhabitant of a
place. In re Campbell's Guardianship, 216 Minn.
113, 11 N.W.2d 786, 789.
As "domicile" and "residence" are usually in the same
place, they are frequently used as if they had the same
meaning, but they are not identical terms, for a person
may have two places of residence, as in the city and coun-
try, but only one domicile. Residence means living in a
particular locality, but domicile means living in that lo-
cality with intent to make it a fixed and permanent home.
Residence simply requires bodily presence as an inhabitant
in a given place, while domicile requires bodily presence
in that place and also an intention to make it one's domi-
cile. In re Riley's Will, 266 N.Y.S. 209, 148 Misc. 588.
RESIDUARY
"Residence" demands less intimate local ties than "domi-
cile," but "domicile" allows absence for indefinite period
if intent to return remains. Immigration Act 1917, § 3, 8
U.S.C.A. § 136 (e, p). Transatlantica Italiana v. Elting,
C.C.A.N.Y., 74 F.2d, 732, 733. But see, Ward v. Ward, 115
W.Va. 429, 176 S.E. 708, 709; Southwestern Greyhound
Lines v. Craig, 182 Okl. 610, 80 P.2d 221, 224; holding that
residence and domicile are synonymous terms.  "Resi-
dence" has a meaning dependent on context and purpose
of statute. In re Jones, 341 Pa. 329, 19 A.2d 280, 282.
Words "residence" and "domicile"- may have an identical
or variable meaning depending on subject-matter and con-
text of statute. Kemp v. Kemp, 16 N.Y.S.2d 26, 34, 172
Misc. 738.
Legal residence. See Legal.
RESIDENT. One who has his residence in a
place. See Residence.
Also a tenant, who was obliged to reside on his lord's
land, and not to depart from the same; called, also,
"homme levant et couchant," and in Normandy, "resseant
du fief."
RESIDENT FREEHOLDER. A person who re-
sides in the particular place (town, city, county,
etc.) and who owns an estate in lands therein
amounting at least to a freehold interest. Camp-
bell v. Moran, 71 Neb. 615, 99 N.W. 499.
RESIDENT MINISTER. In international law. A
public minister who resides at a foreign court.
Resident ministers are ranked in the third class
of public ministers. Wheat. Int. Law, 264, 267.
RESIDUAL. Relating to the residue; relating
to the part remaining.
RESIDUARY. Pertaining to the residue; consti-
tuting the residue; giving or bequeathing the resi-
due; receiving or entitled to the residue. In re
Kent's Will, 169 App.Div. 388, 155 N.Y.S. 894, 897.
RESIDUARY ACCOUNT. In English practice.
The account which every executor and adminis-
trator, after paying the debts and particular leg-
acies of the deceased, and before paying over the
residuum, must pass before the board of inland
revenue. Mozley & Whitley.
RESIDUARY BEQUEST. A bequest of all of
testator's estate not otherwise effectually dispos-
ed of. In re Dolan's Estate, Sur., 21 N.Y.S.2d 464
466.
RESIDUARY CLAUSE. Clause in will by which
that part of property is disposed of which remains
after satisfying bequests and devises. Sanborn v.
Sanborn, 14 N.J.Misc. 260, 184 A. 400, 402.
RESIDUARY DEVISE AND DEVISEE. See De-
vise.
RESIDUARY ESTATE. That which remains aft-
er debts and expenses of administration, legacies,
and devises have been satisfied. Nichols v. Swick-
ard, 211 Iowa 957, 234 N.W. 846, 847. It consists
of all that has not been legally disposed of by
will, other than by residuary clause. In re Cush-
man's Estate, 257 N.Y.S. 582, 586, 143 Misc. 432.
RESIDUARY LEGACY. See Legacy.
RESIDUARY LEGATEE. See Legatee.
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RESIDUE
RESIDUE. The surplus of a testator's estate re-
maining after all the debts and particular lega-
cies have been discharged. 2 Bl.Comm. 514; In
re Hamlin, 185 App.Div. 153, 172 N.Y.S. 787, 790;
In re Brown v. Hilleary, 147 Or. 185, 32 P.2d 584,
587.
RESIDUUM. That which remains after any pro-
cess of separation or deduction; a residue or bal-
ance. That which remains of a decedent's estate,
after debts have been paid and legacies deducted.
United States Trust Co. v. Black, 30 N.Y.S. 453, 9
Misc. 653.
RESIGNATIO EST JURIS PROPRII SPONTAN-
EA REFUTATIO. Resignation is a spontaneous
relinquishment of one's own right. Godb. 284.
RESIGNATION. Formal renouncement or relin-
quishment of an office. Steingruber v. City of San
Antonio, Tex.Com.App., 220 S.W. 77, 78. It must
be made with intention of relinquishing the of-
fice accompanied by act of relinquishment. Pat-
ten v. Miller, 190 Ga. 123, 8 S.E.2d 757, 770; Sad-
ler v. Jester, D.C.Tex., 46 F.Supp. 737, 740.
In ecclesiastical law. Where a parson, vicar,
or other beneficed clergyman voluntarily gives up
and surrenders his charge and preferment to
those from whom he received the same. It is us-
ually done by an instrument attested by a notary.
Phillim.Ecc.Law, 517.
In Scotch law. The return of a fee into the
hands of the superior. Bell.
RESIGNATION BOND. A bond or other engage-
ment in writing taken by a patron from the clergy-
man presented by him to a living, to resign the
benefice at a future period. This is allowable in
certain cases under St. 9 Geo. IV. c. 94, passed in
1828. 2 Steph.Comm. 721.
RESIGNEE. One in favor of whom a resignation
is made. 1 Bell, Comm. 125n.
RESILIENCY. In patent law. That quality, as
of a metal, which causes it to spring back to its
form, inherent in properly tempered metal. Bess-
er v. Merillat Culvert Core Co., D.C.Iowa, 226 F.
783, 786.
RESILIRE. Lat. In old English law. To draw
back from a contract before it is made binding.
Bract. fol. 38.
RESIST. To oppose. This word properly de-
scribes an opposition by direct action and quasi
forcible means. Powell v. State, 152 Ga. 81, 108
S.E. 464, 465; McAlpine v. State, 19 Ala.App. 391,
97 So. 612, 613.
RESISTANCE. The act of resisting opposition;
the employment of forcible means to prevent the
execution of an endeavor in which force is em-
ployed; standing against; obstructing. U. S. v.
Jose, C.C.Wash., 63 F. 954; U. S. v. Huff, C.C.
Tenn., 13 F. 639.
RESISTING AN OFFICER. In criminal law, the
offense of obstructing, opposing, and endeavoring
to prevent (with or without actual force) a peace
officer in the execution of a writ or in the lawful
discharge of his duty while making an arrest or
otherwise enforcing the peace. Jones v. State,
60 Ala. 99.
RESOLUCION. In Spanish colonial law. An
opinion formed by some superior authority on
matters referred to its decision, and forwarded to
inferior authorities for their instruction and gov-
ernment. Schm. Civil Law, 93, note 1.
RESOLUTION. A formal expression of the opin-
ion or will of an official body or a public assem-
bly, adopted by vote; as a legislative resolution.
Scudder v. Smith, 331 Pa. 165, 200 A. 601, 604.
Civil Law
The cancellation or annulling, by the act of par-
ties or judgment of a court, of an existing con-
tract which was valid and binding, in consequence
of some cause or matter arising after the making
of the agreement, and not in consequence of any
inherent vice or defect, which, invalidating the
contract from the beginning, would be ground for
rescission. 7 Toullier, no. 551.
Legislative Practice
The term is usually employed to denote the
adoption of a motion, the subject-matter of which
would not properly constitute a statute; such as
a mere expression of opinion; an alteration of
the rules; a vote of thanks or of censure, etc.
McDowell v. People, 68 N.E. 379, 204 Ill. 499; Con-
ley v. Texas Division of United Daughters of the
Confederacy, Tex.Civ.App., 164 S.W. 24, 26.
The chief distinction between a "resolution"
and a "law" is that the former is used whenever
the legislative body passing it wishes merely to
express an opinion as to some given matter or
thing and is only to have a temporary effect on
such particular thing, while by a "law" it is in-
tended to permanently direct and control matters
applying to persons or things in general. Ex
parte Hague, 104 N.J.Eq. 31, 144 A. 546, 559.
Joint resolution. A resolution adopted by both
houses of congress or a legislature. When such
a resolution has been approved by the president
or passed with his approval, it has the effect of a
law. 6 Op.Atty.Gen. 680.
The distinction between a joint resolution and a
concurrent resolution of congress, is that the for-
mer requires the approval of the president while
the latter does not. Rep. Sen. Jud. Corn. Jan.
1897.
If a resolution originating in one house of the Legisla-
ture is passed by that house and is then sent to the other
for its concurrence, and is passed by it, signed by the
presiding officer of each house and approved by the Gover-
nor, it is a "joint resolution" as that term is used in the
Constitution and the joint rules of the Legislature. Okla-
homa News Co. v. Ryan, 101 Okl. 151, 224 P. 969, 971.
Practice
A solemn judgment or decision of a court.
This word is frequently used in this sense by Coke and
some of the more ancient reporters.
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RESPONDEAT
RESOLUTIVE. In Scotch conveyancing. Hav-
ing the quality or effect of resolving or extinguish-
ing a right. Bell.
RESOLUTO JURE CONCEDENTIS RESOLVI-
TUR JUS CONCESSUM. The right of the gran-
tor being extinguished, the right granted is ex-
tinguished. Mackeld. Rom. Law, 179; Broom,
Max. 467.
RESOLUTORY CONDITION. See Condition.
RESORT, v. To go back; as, it resorted to the
line of the mother. Hale, Com.Law, c. 11. To
frequent; to go, repair, betake one's self, espe-
cially to go frequently, customarily, or usually.
State v. Poggmeyer, 91 Kan. 633, 138 P. 593, 594.
RESORT, n. A place of frequent assembly, a
haunt. U. S. ex rel. Dobra v. Lindsey, D.C.Tex.,
51 F.2d 141, 142.
Court of last resort. A court whose decision
is final and without appeal in reference to the par-
ticular case.
RESOURCES. Money or any property that can
be converted into supplies; means of raising mon-
ey or supplies; capabilities of raising wealth or to
supply necessary wants; available means or ca-
pability of any kind. Shelby County v. Tennessee
Centennial Exposition Co., 96 Tenn. 653, 36 S.W.
694, 33 L.R.A. 717. Cerenzia v. Department of So-
cial Security of Washington, 18 Wash.2d 230, 138
P.2d 868, 871.
RESPECTIVE. Relating to particular persons
or things, each to each; particular; several; as,
their respective homes. Sandford v. Stagg, 106
N.J.Eq. 71, 150 A. 187, 188.
RESPECTU COMPUTI VICECOMITIS HABEN-
DO. A writ for respiting a sheriff's account ad-
dressed to the treasurer and barons of the excheq-
uer. Reg. Orig. 139.
RESPECTUS. In old English and Scotch law.
Respite; delay; continuance of time; postpone-
ment.
RESPICIENDUM EST JUDICANTI NE QUID
AUT DURIUS AUT REMISSIUS CONSTITUA-
TUR QUAM CAUSA DEPOSCIT; NEC ENIM
AUT SEVERITATIS AUT CLEMENTINE GLOR-
IA AFFECTANDA EST. The judge must see
that no order be made or judgment given or sen-
tence passed either more harshly or more mildly
than the case requires; he must not seek renown,
either as a severe or as a tender-hearted judge.
RESPITE. The temporary suspension of the ex-
ecution of a sentence, a reprieve; a delay, for-
bearance, or continuation of time. 4 Bl.Comm.
394; State v. District Court of Eighteenth Judi-
cial Dist. in and for Blaine County, 73 Mont. 541,
237 P. 525, 527.
Continuance. In English practice, a jury is
said, on the record, to be "respited" till the next
term. 3 Bl.Comm. 354.
In the civil law. An act by which a debtor,
who is unable to satisfy his debts at the mo-
ment, transacts (compromises) with his cred-
itors, and obtains from them time or delay for
the payment of the sums which he owes to them.
The respite is either voluntary or forced. It is
voluntary when all the creditors consent to the
proposal, which the debtor makes, to pay in a lim-
ited time the whole or a part of the debt. It is
forced when a part of the creditors refuse to ac-
cept the debtor's proposal, and when the latter is
obliged to compel them by judicial authority to
consent to what the others have determined, in the
cases directed by law.
RESPITE OF APPEAL. Adjourning an appeal to
some future time. Brown.
RESPITE OF HOMAGE. To dispense with the
performance of homage by tenants who held their
lands in consideration of performing homage to
their lords. Cowell.
RESPOND. 1. To make or file an answer to a
bill, libel, or appeal, in the character of a respond-
ent, (q. v.).
2. To be liable or answerable; to make satis-
faction or amends; as, to "respond in damages."
RESPONDE BOOK. In Scotch practice. A book
kept by the directors of chancery, in which are
entered all non-entry and relief duties payable by
heirs who take precepts from chancery. Bell.
RESPONDEAT OUSTER. Upon an issue in law
arising upon a dilatory plea, the form of judg-
ment for the plaintiff is that the defendant an-
swer over, which is thence called a judgment of
"respondeat ouster." This not being a final judg-
ment, the pleading is resumed, and the action pro-
ceeds. Steph.Pl. 115; 3 Bl.Comm. 303; Bauer v.
Roth, 4 Rawle (Pa.) 91.
RESPONDEAT RAPTOR, QUI IGNORARE NON
POTUIT QUOD PUPILLUM ALIENUM ABDUX-
IT. Hob. 99. Let the ravisher answer, for he
cannot be ignorant that he has taken away anoth-
er's ward.
RESPONDEAT SUPERIOR. Let the master an-
swer. This maxim means that a master is liable
in certain cases for the wrongful acts of his serv-
ant, and a principal for those of his agent. Broom,
Max. 843. Southern Paramount Pictures Co. v.
Gaulding, 24 Ga.App. 478, 101 S.E. 311; Delaware,
L. & W. R. Co. v. Pittinger, C.C.A.N.J., 293 F. 853,
855. Under this doctrine master is responsible
for want of care on servant's part toward those
to whom master owes duty to use care, provided
failure of servant to use such care occurred in
course of his employment. Shell Petroleum Cor-
poration v. Magnolia Pipe Line Co., Tex.Civ.App.,
85 S.W.2d 829, 832. Doctrine applies only when
relation of master and servant existed between
defendant and wrongdoer at time of injury sued
for, in respect to very transaction from which
it arose. James v. J. S. Williams & Son, 177 La.
1033, 150 So. 9, 11. Hence doctrine is inapplicable
where injury occurs while servant is acting out-
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RESPONDEAT
side legitimate scope of authority. Rogers v.
Town of Black Mountain, 224 N.C. 119, 29 S.E.2d
203, 205. But if deviation be only slight or inci-
dental, employer may still be liable. Klotsch v. P.
F. Collier & Son Corporation, 349 Mo. 40, 159 S.W.
2d 589, 593, 595; Adams v. South Carolina Power
Co., 200 S.C. 438, 21 S.E.2d 17, 19, 20.
Doctrine does not apply in relation between state of-
ficers and their subordinates, unless superior participates
in or directs act. People v. Standard Accident Ins. Co.,
42 Cal.App.2d 409, 108 P.2d 923, 925.
Municipalities are exempt from doctrine when officers
are acting in exercise of governmental functions. Lemieux
v. City of St. Albans, 112 Vt. 512, 28 A.2d 373, 374.
RESPONDENT. In equity practice. The party
who makes an answer to a bill or other proceed-
ing in chancery. State ex inf. Barker v. Duncan,
265 Mo. 26, 175 S.W. 940, 942, Ann.Cas.1916D, 1.
In admiralty. The party upon whom a libel in
admiralty is served. Brown.
In appellate practice. The party who contends
against an appeal. Brown. Brower v. Wellis, 6
Ind.App. 323, 33 N.E. 672.
In the civil law. One who answers or is secur-
ity for another; a fidejussor. Dig. 2, 8, 6.
RESPONDENTIA. The hypothecation of the car-
go or goods on board a ship as security for the
repayment of a loan, the term "bottomry" being
confined to hypothecations of the ship herself; but
now the term "respondentia" is seldom used, and
the expression "bottomry" is generally employed,
whether the vessel or her cargo or both be the
security. Maude & P. Shipp. 433; Smith, Merc.
Law, 416. See Maitland v. The Atlantic, 16 F.
Cas. 522.
A contract by which a Cargo, or some part
thereof, is hypothecated as security for a loan,
the repayment of which is dependent on maritime
risks.
RESPONDERA SON SOVERAIGNE. His supe-
rior or master shall answer.  Articuli sup. Chart.
c. 18.
RESPONDERE NON DEBET. Lat. In pleading.
The prayer of a plea where the defendant insists
that he ought not to answer, as when he claims
a privilege; for example, as being a member of
congress or a foreign ambassador. 1 Chit.Pl. 433.
RESPONSA PRUDENTITJM. Lat. Answers of
jurists; responses given upon cases or questions
of law referred to them, by certain learned Roman
jurists, who, though not magistrates, were author-
ized to render such opinions. These responsa con-
stituted one of the most important sources of the
earlier Roman law, and were of great value in
developing its scientific accuracy. They held
much the same place of authority as our modern
precedents and reports.
RESPONSALIS. In Old English Law. One who
appeared for another.
In ecclesiastical law. A proctor.
RESPONSALIS AD LUCRANDUM VEL PETEN-
DUM. He who appears and answers for another
in court at a day assigned; a proctor, attorney,
or deputy. 1 Reeve, Eng.Law, 169.
RESPONSIBILITY. The obligation to answer
for an act done, and to repair any injury it may
have caused.
RESPONSIBILITY OF EVICTION. In a lease
the burden of expelling by legal process those in
possession, if they wrongfully withhold it. Mul-
ler v. Bernstein, 198 Ill.App. 104, 106.
RESPONSIBLE. Liable, legally accountable or
answerable. The Mary F. Barrett, C.C.A.Pa., 279
F. 329, 334; Middendorf, Williams & Co. v. Alex-
ander Milburn Co., 113 A. 348, 354, 137 Md. 583.
Able to pay a sum for which he is or may be-
come liable, or to discharge an obligation which
he may be under. People v. Kent, 160 Ill. 655, 43
N.E. 760.
RESPONSIBLE CAUSE. So as to relieve defend-
ant from liability for injuries. A cause which is
the culpable act of a human being who is legally
responsible for such act. State, to Use of Schil-
ler, v. Hecht Co., 165 Md. 415, 169 A. 311, 313.
RESPONSIBLE GOVERNMENT. This term gen-
erally designates that species of governmental sys-
tem in which the responsibility for public meas-
ures or acts of state rests upon the ministry or
executive council, who are under an obligation
to resign when disapprobation of their course is
expressed by a vote of want of confidence, in the
legislative assembly, or by the defeat of an im-
portant measure advocated by them.
RESPONSIO UNIUS NON OMNINO AUDIA-
TUR. The answer of one witness shall not be
heard at all. A maxim of the Roman law of evi-
dence. 1 Greenl. Ev. § 260.
RESPONSIVE. Answering; constituting or com-
prising a complete answer. A "responsive allega-
tion" is one which directly answers the allegation
it is intended to meet. Picture Plays Theater Co.
of Tampa v. Williams, 75 Fla. 556, 78 So. 674, 677,
1 A.L.R. 1.
RESSEISER. The taking of lands into the hands
of the crown, where a general livery or ouster
le main was formerly misused.
REST, v. In the trial of an action, a party is
said to "rest," or "rest his case," when he inti-
mates that he has produced all the evidence he
intends to offer at that stage, and submits the
case, either finally, or subject to his right to aft-
erwards offer rebutting evidence.
REST, n. Repose, cessation or intermission of
motion, exertion or labor; freedom from activity;
quiet. Corrugating Machinery Corporation v.
Progressive Corrugated Paper Machinery Co., D.
C.N.Y., 47 F.2d 273, 275. Also residue (which title
see).
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RESTRAINT
RESTAMPING WRIT. Passing it a second time
through the proper office, whereupon it receives
a new stamp. 1 Chit. Arch. Pr. 212.
RESTAUR, or RESTOR. The remedy or recourse
which marine underwriters have against each oth-
er, according to the date of their assurances, or
against the master, if the loss arise through his
default, as through ill loading, want of caulking,
or want of having the vessel tight; also the rem-
edy or recourse a person has against his guaran-
tor or other person who is to indemnify him from
any damage sustained. Enc. Lond.
RESTAURANT. An establishment where refresh-
ments or meals may be obtained by the public.
Donahue v. Conant, 102 Vt. 108, 146 A. 417, 419.
It includes cafes, lunchrooms, dairy lunch rooms,
cafeterias, tea rooms, waffle houses, fountain
lunches, sandwich shops and many others. Peo-
ple, on Complaint of Canniano, v. Kupas, 13 N.Y.
S.2d 488, 490, 171 Misc. 480.
RESTITUTIO IN INTEGRUM. Lat. In the civil
law. Restoration or restitution to the previous
condition. This was effected by the praetor on
equitable grounds, at the prayer of an injured
party, by rescinding or annulling a contract or
transaction valid by the strict law, or annulling a
change in the legal condition produced by an omis-
sion, and restoring the parties to their previous
situation or legal relations. Dig. 4, 1; Mackeld.
Rom. Law, 1 220.
The restoration of a cause to its first state, on
petition of the party who was cast, in order to
have a second hearing. Hallifax, Civil Law, b.
3, c. 9, no. 49.
RESTITUTION. Act of restoring; restoration;
restoration of anything to its rightful owner;
the act of making good or giving equivalent for
any loss, damage or injury; and indemnification.
State v. Barnett, 110 Vt. 221, 3 A.2d 521, 525, 526.
Equity
Restoration of both parties to their original con-
dition, (when practicable,) upon the rescission of
a contract for fraud or similar cause.
Maritime Law
The placing back or restoring articles which
have been lost by jettison: This is done, when re-
mainder of the cargo has been saved, at the gen-
eral charge of the owners of the cargo. Stevens,
Av. pt. 1, c. 1, 1, art. 1, n. 8.
Practice
The return of something to the owner of it or
to the person entitled to it, upon the reversal or
setting aside of the judgment or order of court
under which it was taken from him. Haebler v.
Myers, 132 N.Y. 363, 30 N.E. 963, 15 L.R.A. 588,
28 Am.St.Rep. 589; Holloway v. People's Water
Co., 100 Kan. 414, 167 P. 265, 269, 2 A.L.R. 161.
If, after money has been levied under a writ of execu-
tion, the judgment be reversed by writ of error, or set
aside, the party against whom the execution was sued out
shall have restitution. 2 Tidd, Pr. 1033; 1 Burrill, Pr.
292. So, on conviction of a felon, immediate restitution of
such of the goods stolen as are brought into court will be
ordered to be made to the several prosecutors. 4 Steph.
Comm. 434.
General
Restitution of conjugal rights. In English ec-
clesiastical law. A species of matrimonial cause
or suit which is brought whenever either a . hus-
band or wife is guilty of the injury of subtraction,
or lives separate from the other without any suffi-
cient reason; in which case the ecclesiastical ju-
risdiction will compel them to come together
again, if either be weak enough to desire it, con-
trary to the inclination of the other. 3 Bl. Comm.
94.
Restitution of minors. In Scotch law. Re-
lief obtained by minor on attaining majority
against a deed previously executed by him. Bell.
Restitution of stolen goods. At common law
there was no restitution of goods upon an indict-
ment, because it was at the suit of the crown only,
therefore the party was compelled to bring an
appeal of robbery in order to have his goods
again; but a writ of restitution was granted by
21 Hen. VIII. c. 11, and it became the practice of
the crown to order, without any writ, immediate
restitution of such goods.
Writ of restitution. See that title.
RESTITUTIONE EXTRACT! AB ECCLESIA. A
writ to restore a man to the church, which he had
recovered for his sanctuary, being suspected of
felony. Reg. Orig. 69.
RESTITUTIONE TEMPORALIUM. A writ ad-
dressed to the sheriff, to restore the temporali-
ties of a bishopric to the bishop elected and con-
firmed. Fitzh. Nat. Brev. 169.
RESTRAIN. To limit, confine, abridge, narrow
down, restrict, obstruct, impede, hinder, stay,
destroy. U. S. v. Keystone Watch Case Co., D.C.
Pa., 218 F. 502, 515. To prohibit from action; to
put compulsion upon; to restrict; to hold or press
back. To enjoin, (in equity.)
RESTRAINING ORDER. An order in the nature
of an injunction. See Order.
RESTRAINING POWERS. Restrictions or limi-
tations imposed upon the exercise of a power by
the donor thereof.
RESTRAINING STATUTE. A statute which re-
strains the common law, where it is too lax and
luxuriant. 1 Bl. Comm. 87. Statutes restraining
the powers of corporations in regard to leases
have been so called in England. 2 Bl. Comm. 319,
320.
RESTRAINT. Confinement, abridgment, or lim-
itation. Prohibition of action; holding or press-
ing back from action. Hindrance, confinement, or
restriction of liberty. Obstruction, hindrance or
destruction of trade or commerce.
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RESTRAINT
RESTRAINT OF PRINCES AND RULERS. In
marine and war risk policies, operation of sover-
eign power by exercise of vis major, in its sover-
eign capacity, controlling and divesting for the
time, the authority of owner over ship, and clause
applies only to acts done in exercise of sovereign
power. Baker Castor Oil Co. v. Insurance Co. of
North' America, D.C.N.Y., 60 F.Supp. 32, 35.
Where the "restraint of princes" clause or similar lan-
guage is found in the contract, a reasonable apprehension
of capture or destruction of the ship or cargo will justify
nonperformance of the agreement to carry. The George
.T. Goulandris, D.C.Me., 36 F.Supp. 827, 830, 834.
RESTRAINT OF MARRIAGE. A contract, coven-
ant, bond, or devise. When conditions unreason-
ably hamper or restrict the party's freedom to
marry, or his choice, or unduly postpone the time
of his marriage. "General restraint," as used
in the rule invalidating contracts in general re-
straint of marriage, means restraint binding a
competent person not to marry any one at any
time. Barnes v. Hobson, Tex.Civ.App., 250 S.W.
238, 242.
RESTRAINT OF TRADE. Contracts or combina-
tions which tend or are designed to eliminate or
stifle competition, effect a monopoly, artificially
maintain prices, or otherwise hamper or obstruct
the course of trade and commerce as it would
be carried on if left to the control of natural and
economic forces. U. S. v. Reading Co., 40 S.Ct.
425, 429, 253 U.S. 26, 64 L.Ed. 760; U. S. v. Pat-
ten, 33 S.Ct. 141, 144, 145, 226 U.S. 525, 57 L.Ed.
333, 44 L.R.A.,N.S., 325.
With reference to contracts between individuals, a re-
straint of trade is said to be "general" or "special." A.
contract which forbids a person to employ his talents, in-
dustry, or capital in any undertaking within the limits of
the state or country is in "general" restraint of trafie;
if it forbids him to employ himself in a designated trade or
business, either for a limited time or within a prescribed,
area or district, it is in "special" restraint of trade. Hol-
brook v. Waters, 9 How. Prac. (N.Y.) 337.
"Restraint of trade" at which the Sherman Anti-Trust
Act is aimed, are only those which are comparable to re-
straints deemed illegal at common law. United States v.
South-Eastern Underwriters Ass'n, D.C.Ga., 51 F.Supp.
712, 714.
RESTRAINT ON ALIENATION. Restriction of
the power of aliening property. See Perpetuity.
In English practice, as applied to counsel, a no-
tice given to a counsel by an attorney on behalf
of the plaintiff or defendant in an action, in or-
der to secure his services as advocate when the
cause comes on for trial. Holthouse. Blackman
v. Webb, 38 Kan. 668, 17 P. 464.
In old English usage. A servant, not menial
or familiar,—that is, not continually dwelling in
the house of his master, but only wearing his
livery, and attending sometimes upon special oc-
casions. Cowell.
RESTRICT. To restrain within bounds; to limit;
to confine. State ex rel. Lucey v. Terry, Del.Su-
per., 196 A. 163, 167.
RESTRICTED LANDS. Lands the alienation of
which is subject to restrictions imposed by Con-
gress to protect the Indians from their own sup-
posed incompetency. 25 U.S.C.A. § 331 note.
Kenny v. Miles, 39 S.Ct. 417, 418, 250 U.S. 58, 63
L.Ed. 841.
RESTRICTION. In the case of land registered
under the English land transfer act, 1875, an en-
try on the register made on the application of
the registered proprietor of the land, the effect
of which is to prevent the transfer of the land
or the creation of any charge upon it, unless no-
tice of the application for a transfer or charge
is sent by post to a certain address, or unless
the consent of a certain person or persons to the
transfer or charge is obtained, or unless some
other thing is done. Sweet.
RESTRICTIVE INDORSEMENT. An indorse-
ment so worded as to restrict the further nego-
tiability of the instrument. Thus, "Pay the con-
tents to J. S. only," or "to J. S. for my use," are
restrictive indorsements, and put an end to the
negotiability of the paper. 1 Daniel, Neg. Inst.
§ 698.
RESTS, n. Periodical balancings of an account,
(particularly in mortgage and trust accounts,)
made for the purpose of converting interest into
principal, and charging the party liable thereon
with compound interest. Mozley & Whiteley.
RESULT, v. To proceed, to spring, or arise, as
a consequence, effect, or conclusion; to come out,
or have an issue; to terminate; to end. Abbott
v. Prudential Ins. Co. of America, 89 N.H. 149,
195 A. 413, 414.
In law, a thing is said to result when, after having been
ineffectually or only partially disposed of, it comes back
to its former owner or his representatives. Sweet.
RESULT, n. That which results, the conclusion
or end to which any course or condition of thing
leads, or which is obtained by any process or op-
eration; consequence or effect. Reese v. Demp-
sey, 48 N.M. 485, 153 P.2d 127, 131.
RESULTING TRUST. See Trust,
RESULTING USE. See Use.
RESUMMONS. In practice. A second summons.
The calling a person a second time to answer
an action, where the first summons is defeated
upon any occasion; as the death of a party, or
the like. Cowell.
RESUMPTION. In old English law. The taking
again into the king's hands such lands or tene-
ments as before, upon false suggestion, or other
error, he had delivered to the heir, or granted by
letters patent to any man. Cowell.
RESURRENDER. Where copyhold land has been
mortgaged by surrender, and the mortgagee has
been admitted, then, on the mortgage debt being
paid off, the mortgagor is entitled to have the
land reconveyed to him, by the mortgagee sur-
rendering it to the lord to his use. This is called
a resurrender. 2 Da y .Conv. 1332n.
RETAIL. To sell by small quantities, in broken
lots or parcels, not in bulk, to sell direct to con-
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RETOUR
sumer. Corn. v. Kimball, 7 Mete. (Mass.) 308;
Kentucky Consumers' Oil Co. v. Commonwealth,
233 S.W. 892, 893, 192 Ky. 437; Department of
Treasury of Indiana v. Ridgely, 211 Ind. 9, 4 N.E.
2d 557, 562, 108 A.L.R. 1067; Guess v. Montague,
D.C.S.C., 51 F.Supp. 61, 64, 65.
RETAILER OF MERCHANDISE. A merchant
who buys articles in gross or merchandise in large
quantities, and sells the same by single articles
or in small quantities. Byran v. City of Sparks,
36 Nev. 573, 137 P. 522, 523.
RETAIN. To continue to hold, have, use, recog-
nize, etc., and to keep. Kimbell Trust & Savings
Bank v. Hartford Accident & Indemnity Co., 333
Ill. 318, 164 N.E. 661, 662.
In practice. To engage the services of an at-
torney or counsellor to manage a cause. See
Retainer.
RETAINER. The act of withholding what one
has in one's own hands by virtue of some right.
Act of the client in employing his attorney or
counsel, and also denotes the fee which the client
pays when he retains the attorney to act for him,
and thereby prevents him from acting for his ad-
versary. Bright v. Turner, 205 Ky. 188, 265 S.W.
627, 628; Devany v. City of South Norfolk, 143
Va. 768, 129 S.E. 672, 674.
General Retainer
Of an attorney or solicitor merely gives a right
to expect professional service when requested, but
none which is not requested. It binds the person
retained not to take a fee from another against
his retainer, but to do nothing except what he is
asked to do, and for this he is to be distinctly
paid. Rhode Island Excl. Bank v. Hawkins, 6
R.I. 206.
Right of Retainer
The right which the executor or administrator
of a deceased person has to retain out of the as-
sets sufficient to pay any debt due to him from
the deceased in priority to the other creditors
whose debts are of equal degree. 3 Steph.Comm.
263. In re Smith's Estate, 179 Wash. 417, 38 P.
2d 244, 245.
Special Retainer
An engagement or retainer of an attorney or
solicitor for a special and designated purpose; as,
to prepare and try a particular case. Agnew v.
Walden, 84 Ala. 502, 4 So. 672.
RETAINER PAY. Compensation paid to enlisted
men retained in the service but not rendering ac-
tive service. French v. French, Cal., 105 P.2d 155,
157.
RETAINING A CAUSE. In English practice, The
act of one of the divisions of the high court of
justice in retaining jurisdiction of a cause wrong-
ly brought in that division instead of another.
Under the judicature acts of 1873 and 1875, this
may be done, in some cases, in the discretion of
the court or a judge.
RETAINING FEE. A fee given to counsel on en-
gaging his services. Conover v. West Jersey
Mortgage Co., 96 N.J.Eq. 441, 126 A. 855, 860.
RETAINING LIEN. See Attorney's Lien.
RETAKING. The taking one's goods, from an-
other, who without right has taken possession
thereof. See Recaption.
RETALIATION. See lex talionis, (q. v.).
RETALLIA. In old English law. Retail; the
cutting up again, or division of a commodity in-
to smaller parts.
RETENEMENTUM. In old English law. Re-
straint; detainment; withholding.
RETENTION. In Scotch law. A species of lien;
the right to retain possession of a chattel until
the lienor is satisfied of his claim upon the ar-
ticle itself or its owner.
RETINENTIA. A retinue, or persons retained
by a prince or nobleman. Cowell.
RETIRE. As applied to bills of exchange, this
word is ambiguous. It is commonly used of an
indorser who takes up a bill by handing the
amount to a transferee, after which the indorser
holds the instrument with all his remedies intact.
But it is sometimes used of an acceptor, by whom,
when a bill is taken up or retired at maturity, it
is in effect paid, and all the remedies on it ex-
tinguished. Byles, Bills, 215. Empire Security
Co. v. Berry, 211 Ill.App. 278.
To withdraw from active service as an officer
of the army or navy; to separate, withdraw, or
remove. State v. Love, 95 Neb. 573, 145 N.W. 1010,
1013, Ann.Cas.1915D, 1078.
RETONSOR. L. Lat. In old English law. A
clipper of money. Fleta, lib. 1, c. 20, § 122.
RETORNA BREVIUM. The return of writs. The
indorsement by a sheriff or other officer of his
doings upon a writ.
RETORNO IIABENDO. A writ that lies for the
distrainor of goods (when, on replevin brought,
he has proved his distress to be a lawful one)
against him who was so distrained, to have them
returned to him according to law, together with
damages and costs. Brown.
RETORSION. In international law. A species
of retaliation, which takes place where a govern-
ment, whose citizens are subjected to severe and
stringent regulation or harsh treatment by a for-
eign government, employs measures of equal se-
verity and harshness upon the subjects of the lat-
ter government found within its dominions. Vat-
tel, lib. 2, c. 18, § 341.
RETOUR. In Scotch law. To return a writ to
the office in chancery from which it issued.
RETOUR OF SERVICE. In Scotch law. A certi-
fied copy of a verdict establishing the legal char-
acter of a party as heir to a decedent.
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RETOUR
RETOUR SANS FRAIS. Fr. In French law. A
formula put upon a bill of exchange to signify
that the drawer waives protest, and will not be
responsible for costs arising thereon. Arg. Fr.
Merc. Law, 573.
RETOUR SANS PROTET, Fr. Return without
protest. A request or direction by a drawer of a
bill of exchange that, should the bill be dis-
honored by the drawee, it may be returned with-
out protest.
RETRACT. To take back. To retract an offer
is to withdraw it before acceptance, which the
offerer may always do.
RETRACTATION, in probate practice. A with-
drawal of a renunciation, (q. v.).
RETRACTO 0 TANTEO. In Spanish law. The
right of revoking a contract of sale; the right
of redemption of a thing sold. White, New Re-
cop. b. 2, tit. 13, c. 2, § 4.
RETRACTUS AQU1E, Lat. The ebb or return
of a tide. Cowell.
RETRACTUS FEUDALIS. L. Lat. In old Scotch
law. The power which a superior possessed of
paying off a debt due to an adjudging creditor,
and taking a conveyance to the adjudication.
Bell.
RETRAIT. Fr. In old French and Canadian
law. The taking back of a fief by the seignior,
in case of alienation by the vassal. A right of
pre-emption by the seignior, in case of sale of the
land by the grantee.
RETRAXIT. Lat. He has withdrawn.
The open, public, and voluntary renunciation
by the plaintiff, in open court, of his suit or cause
of action, and if this is done by the plaintiff, and
a judgment entered thereon by the defendant, the
plaintiff's right of action is forever gone. U. S.
v. Parker, 7 S.Ct. 454, 120 U.S. 89, 30 L.Ed. 601;
Lewis v. Johnson, Cal.App., 80 P.2d 90.
Judgment of Retraxit
One where, after appearance and before judg-
ment, the plaintiff voluntarily enters upon the
record that he "withdraws his suit," whereupon
judgment is rendered against him.
The difference between a retraxit and a nolle prosequi is
that a retraxit is a bar to any future action for the same
cause ; while a nolle prosequi is not, unless made after
judgment. Similarly, a retraxit differs from a nonsuit.
RETREAT TO THE WALL. In the law relating
to homicide in self-defense, this phrase means
that the party must avail himself of any apparent
and reasonable avenues of escape by which his
danger might be averted, and the necessity of
slaying his assailant avoided. People v. lams, 57
Cal. 120.
RETRIBUTION. This word is sometimes used in
law, though not commonly in modern times, as
the equivalent of "recompense," or a payment or
compensation for services, property, use of an
estate, or other value received.
RETRO. Lat. Back; backward; behind. Retro-
feodum, a rerefief, or arriere fief. Spelman.
RETROACTIVE. Retrospective (q. v.). City of
Cincinnati v. Bachmann, 51 Ohio App. 108, 199
N.E. 853, 854.
RETROACTIVE INFERENCE. The inferring of
a previous fact from present conditions by a trier
of facts. Gray v. Kurn, 345 Mo. 1027, 137 S.W.
2d 558, 568.
RETROACTIVE LAW. Retrospective law, which
title see.
RETROACTIVE STATUTE. A statute which
creates a new obligation on transactions or con-
siderations already past or destroys or impairs
vested rights. See, also, Retroactive. London
Guarantee & Accident Co. v. Pittman, 69 Ga.App.
146, 25 S.E.2d 60, 65, 66.
RETROCESSION. In the civil law. When the
assignee of heritable rights conveys his rights
back to the cedent. Ersk. Inst. 3, 5, 1.
RETROSPECTIVE. Looking backward; contem-
plating what is past; having reference to a state
of things existing before the act in question.
Walker County Fertilizer Co. v. Napier, 184 Ga.
861, 193 S.E. 770, 773.
RETROSPECTIVE LAW. A law which looks
backward or contemplates the past; one which
is made to affect acts or facts occurring, or rights
accruing, before it came into force. Every stat-
ute which takes away or impairs vested rights
acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new
disability in respect to transactions or considera-
tions already past. See Ex Post Facto. Clear-
water Tp. v. Board of Sup'rs of Kalkaska Coun-
ty, 187 Mich. 516, 153 N.W. 824, 826; People ex
rel. Albright v. Board of Trustees of Firemen's
Pension Fund of and for City and County of Den-
ver, Colo., 103 Colo. 1, 82 P.2d 765, 771, 118 A.L.R.
984.
RETTE. L. Fr. An accusation or charge. St.
Westm. 1, c. 2.
RETURN. To bring, carry, or send back; to
place in the custody of; to restore; to re-deliver;
to send back. Tuttle v. City of Boston, 215 Mass.
57, 102 N.E. 350; Johnson v. Curlee Clothing Co.,
240 P. 632, 633, 112 Okl. 220.
The act of a sheriff, constable, or other minis-
terial officer, in delivering back to the court a
writ, notice, or other paper, which he was re-
quired to serve or execute, with a brief account of
his doings under the mandate, the time and mode
of service or execution, or his failure to accom-
plish it, as the case may be. Also the indorse-
ment made by the officer upon the writ or other
paper, stating what he has done under it, the time
and mode of service, etc. New York, N. H. &
H. R. Co. v. Railway Employees' Department,
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American Federation of Labor, Federated Shop
Crafts, System Federation No. 17, D.C.Conn., 288
F. 588, 591; Smith v. Drake, 174 Ark. 715, 297 S.
W. 817.
The report made by the court, body of magis-
trates, returning board, or other authority charg-
ed with the official counting of the votes cast at
an election.
In English practice, the election of a member
of parliament.
Fair Return
See Fair Return.
False Return
A return to a writ, in which the officer charged
with it falsely reports that he served it, when he
did not, or makes some other false or incorrect
statement, whereby injury results to a person
interested. State v. Jenkins, 70 S.W. 152, 170 Mo.
16. In taxation, a return that is incorrect, Du
Pont v. Graham, D.C.Del., 283 F. 300, 302, al-
though made in good faith under a mistake of
law. Eliot Nat. Bank v. Gill, D.C.Mass., 210 F.
933, 937. Under some statutes, in order to ren-
der a return a false return, there must appear, if
not a design to mislead or deceive on the part of
the taxpayer, at least culpable negligence. Fouts
v. State, 149 N.E. 551, 555, 113 Ohio St. 450.
General Return-day
The day for the general return of all writs of
summons, subpoena, etc., running to a particular
term of the court.
Return-book
The book containing the list of members re-
turned to the house of commons. May, Parl. Pr.
Return-day
The day named in a writ or process, upon which
the officer is required to return it. Perry v. John
Hancock Mut. Life Ins. Co., C.C.A.Ga., 2 F.2d 250,
251; Wilkinson v. La Combe, 59 Mont. 518, 197 P.
836, 837.
Day on which votes cast are counted and the
official result is declared. Landrum v. Centen-
nial Rural High School Dist. No. 2, Tex.Civ.App.,
134 S.W.2d 353, 354.
Return Irreplevisable
A writ allowed by the statute of Westm. 2, c.
2, to a defendant who had had judgment upon ver-
dict or demurrer in an action of replevin, or after
the plaintiff had, on a writ of second deliverance,
become a second time nonsuit in such action. By
this writ the goods were returned to the defend-
ant, and the plaintiff was restrained from suing
out a fresh replevin. Previously to this statute,
an unsuccessful plaintiff might bring actions of
replevin in infinitum, in reference to the same
matter. 3 Bl.Comm. 150.
Return of Premium
The repayment of the whole or a ratable part
of the premium paid for a policy of insurance,
upon the cancellation of the contract before the
time fixed for its expiration. Northwestern Mut.
Life Ins. Co. v. Roberts, 177 Cal. 540, 171 P. 313,
315; Equitable Life Assur. Soc. of United States
v. Johnson, 53 Cal.App.2d 49, 127 P.2d 95. For
special meaning in mutual insurance, see: New
York Life Ins. Co. v. Chaves, 21 N.M. 264, 153 P.
303.
Return Unsatisfied
As used in Bankruptcy Act is not equivalent
to a return of no property found, but means that
the debtor has no property available subject to
writ for satisfaction of judgment. In re Toms,
C.C.A.Mich., 101 F.2d 617, 619.
Return of Writs
In practice. A short account, in writing, made
by the sheriff, or other ministerial officer, of the
manner in which he has executed a writ. Steph.
Pl. 24.
RETURNABLE. In practice. To be returned;
requiring a return. When a writ is said to be
"returnable" on a certain day, it is meant that on
that day the officer must return it.
RETURNING BOARD. This is the official title
in some of the states of the board of canvassers
of elections.
RETURNING FROM TRANSPORTATION. Com-
ing back to England before the term of punish-
ment is determined.
RETURNING OFFICER. The official who con-
ducts a parliamentary election in England. The
sheriff in counties, and the mayor in boroughs.
Wharton.
RETURNUM AVERIORUM. A judicial writ, simi-
lar to the retorno habendo. Cowell.
RETURNUM IRREPLEGIABILE. A judicial writ
addressed to the sheriff for the final restitution or
return of cattle to the owner when unjustly taken
or distrained, and so found by verdict. It is
granted after a nonsuit in a second deliverance.
Reg. Jud. 27.
REUS. Lat. In the civil and canon law. The
defendant in an action or suit.
A person judicially accused of a crime; a per-
son criminally proceeded against. Hallifax, Civil
Law, b. 3, c. 13, no. 7.
A party to a suit, whether plaintiff or defend-
ant; a litigant. This was the ancient sense of
the word. Calvin.
A party to a contract. Reus stipulandi, a party
stipulating; the party who asked the question in
the form prescribed for stipulations. Reus pro-
mittendi, a party promising; the party who an-
swered the question.
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REUS EXCIPIENDO FIT ACTOR. The defend-
ant, by excepting or pleading, becomes a plaintiff;
that is, where, instead of simply denying the
plaintiff's action, he sets up some new matter in
defense, he is bound to establish it by proof, just
as a plaintiff is bound to.prove his cause of action.
Bounier, Tr. des Preuves, §§ 152, 320; Best, Ev. p.
294, § 252.
REUS LIESZE MAJESTATIS PUNITUR UT PER-
EAT UNUS NE PEREANT OMNES. A traitor
is punished that one may die lest all perish. 4
Coke, 124.
REVE. In old English law. The bailiff of a fran-
chise or manor; an officer in parishes within for-
ests, who marks the commonable cattle. Cowell.
REVE MOTE. In Saxon law. The court of the
reve, reeve, or shire reeve. 1 Reeve, Eng. Law, 6.
REVEL. To behave in a noisy, boisterous man-
ner, like a bacchanal. In re Began, 12 R.I. 309.
REVELAND. The land which in Domesday is
said to have been "thane-land," and afterwards
converted into "reveland." It seems to have been
land which, having reverted to the king after the
death of the thane, who had it for life, was not
granted out to any by the king, but rested in
charge upon the account of the reve or bailiff of
the manor. Spel. Feuds, c. 24.
REVELS. Sports of dancing, masking, etc., form-
erly used in princes' courts, the inns of court,
and noblemen's houses, commonly performed by
night. There was an officer to order and super-
vise them, who was entitled the "master of the
revels." Cowell.
REVENDICATION. To reclaim or to demand the
restoration of; to "reclaim" being to claim some-
thing back, which is in the possession of another,
but which belongs to the claimant. Witson v.
Succession of Staring, La.App., 175 So. 495, 498.
In civil law. The right of a vendor to reclaim
goods sold out of the possession of the purchaser,
where the price was not paid. Story, Confl. Laws,
§ 401. Benedict v. Schaettle, 12 Ohio St. 520; El-
lis v. Davis, 3 S.Ct. 327, 109 U.S. 485, 27 L.Ed. 1006.
REVENDICATION ACTION. In civil law. One
by which a man demands a restoration of a thing
of which he claims to be the owner. Cooney v.
Blythe Co., La.App., 200 So. 517, 519.
REVENUE. Return, yield, as of land, profit, that
which returns or comes back from an investment,
the annual or periodical rents, profits, inter. res t
or issues of any species of property, real or per-
sonal, income. Willoughby v. Willoughby, 66 R.I.
430, 19 A.2d 857, 860.
Also the income of an individual or private
corporation. Humphrey v. Lang, 169 N.C. 601,
86 S.E. 526, 527, L.R.A.1916B, 626.
As applied to the income of a government,
a broad and general term, including all public
moneys which the state collects and receives, from
whatever source and in whatever manner. Flet-
cher v. Oliver, 25 Ark. 295; State ex rel. Thomp-
son v. Board of Regents for Northeast Missouri
State Teachers' College, 305 Mo. 57, 264 S.W. 698,
700. The income which a state collects and re-
ceives into its treasury, and is appropriated for
the payment of its expenses. Public Market Co.
of Portland v. City of Portland, 171 Or. 522, 130
P.2d 624, 644.
Land Revenues
See that title.
Public Revenue
The revenue of the government of the state
or nation; sometimes, perhaps, that of a munici-
pality.
Revenue Bills
Those that levy taxes in the strict sense of the
word. Hart v. Board of Com'rs of Burke County,
192 N.C. 161, 134 S.E. 403, 404.
Revenue Law
Any law which provides for the assessment
and collection of a tax to defray the expenses of
the government. Such legislation is commonly re-
ferred to under the general term "revenue mea-
sures," and those measures include all the laws by
which the government provides means for meet-
ing its expenditures. The Nashville, 17 Fed.Cas.
1178; Twin City Nat. Bank v. Nebeker, 3 App.
D.C. 190; Ard v. People, 66 Colo. 480, 182 P. 892,
893; Colorado Nat. Life Assur. Co. v. Clayton,
54 Colo. 256, 130 P. 330, 332. For "Loss," see that
title.
Revenue Side of the Exchequer
That jurisdiction of the court of exchequer, or
of the exchequer division of the high court of
justice, by which it ascertains and enforces the
proprietary rights of the crown against the sub-
jects of the realm. The practice in revenue cases
is not affected by the orders and rules under the
judicature act of 1875. Mozley & Whitley.
REVERSAL. The annulling or making void a
judgment on account of some error or irregular-
ity. Usually spoken of the action of an appellate
court.
International Law
A declaration by which a sovereign promises
that he will observe a certain order or certain
conditions, which have been once established, not-
withstanding any changes that might otherwise
cause a deviation therefrom. Bouvier.
REVERSE. To overthrow, vacate, set aside, make
void, annul, repeal, or revoke, as to reverse a
judgment, sentence or decree, or to change to the
contrary or to a former condition. Department
of Water and Power of City of Los Angeles v.
Inyo Chemical Co., Cal.App., 100 P.2d 822, 826.
Securities and Exchange Commission v. C. M.
Joiner Leasing Corporation, D.C.Tex., 53 F.Supp.
714, 715.
REVERSER. In Scotch law. The proprietor of
an estate who grants a wadset (or mortgage) of
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his lands, and who has a right, on repayment of
the money advanced to him, to be replaced in his
right. Bell.
REVERSIBLE ERROR. See Error.
REVERSIO. L. Lat. In old English law. The
returning of land to the donor. Fleta, lib. 3, cc.
10, 12.
REVERSIO TER/LE EST TANQUAM TERRA
REVERTENS IN POSSESSIONE DONATOR!,
SIVE HJEREDIBUS SUIS POST DONUM FINI-
TIM. Co. Litt. 142. A reversion of land is, as
it were, the return of the land to the possession
of the donor or his heirs after the termination of
the estate granted.
REVERSION, or ESTATE IN REVERSION. The
residue of an estate left by operation of law in
the grantor or his heirs, or in the heirs of a tes-
tator, commencing in possession on the determina-
tion of a particular estate granted or devised.
Strong v. Shatto, 45 Cal.App. 29, 187 P. 159, 162;
Vantage Mining Co. v. Baker, 170 Mo.App. 457,
155 S.W. 466, 467.
Any future interest left in a transferor or his
successor. Miller v. Dierken, 153 Pa.Super. 389,
33 A.2d 804, 805. It is a vested interest or estate,
in as much as person entitled to it has a fixed
right to future enjoyment. State ex rel. Tozer v.
Probate Court of Washington County, 102 Minn.
268, 113 N.W. 888, 893.
The term reversion has two meanings, first, as desig-
nating the estate left in the grantor during the continu-
ance of a particular estate and also the residue left in
grantor or his heirs after termination of particular es-
tate. Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641,
642. Miller v. C. I. R., C.C.A.6, 147 F.2d 189, 193.
It differs from a remainder in that it arises by act of
the law, whereas a remainder is by act of the parties. A
reversion, moreover, is the remnant left in the grantor,
whilst a remainder is the remnant of the whole estate dis-
posed of, after a preceding part of the same has been
given away. Copenhaver v. Pendleton, 155 Va. 463, 155 S.
E. 802, 806, 77 A.L.R. 324.
Scotch Law
A right of redeeming landed property which
has been either mortgaged or adjudicated to se-
cure the payment of a debt. In the former case,
the reversion is called "conventional;" in the
latter case, it is called "legal ;" and the period
of seven years allowed for redemption is called
the "legal." Bell; Paterson.
Legal reversion. In Scotch law. The period
within which a proprietor is at liberty to redeem
/and adjudged from him for debt.
REVERSIONARY. That which is to be enjoyed
in reversion.
REVERSIONARY INTEREST. The interest
which a person has in the reversion of lands or
other property. A right to the future enjoyment
of property, at present in the possession or occu-
pation of another. Holthouse. See, also, Rever-
sion.
REVERSIONARY LEASE. One to take effect in
futuro. A second lease, to commence after the
expiration of a former lease. Wharton.
REVERSIONER. A person who is entitled to an
estate in reversion. By an extension of its mean-
ing, one who is entitled to any future estate or
any property in expectancy.
REV ERT. To turn back, to return to. Reichard
v. Chicago, B. & Q. R. Co., 231 Iowa 563, 1 N.W.
2d 721, 727.
With respect to property to go back to and
lodge in former owner, who parted with it by
creating estate in another which has expired, or
to his heirs. Petition of Smith, 291 Pa. 129, 139 A.
832, 835.
In a loose way the term "revert to" is sometimes used in
a will as the equivalent of "go to," and, where the lan-
guage of a will so indicates, it will be construed as used to
designate the person to whom the testator wished the land
to be given. Mastellar v. Atkinson, 94 Kan. 279, 146 P.
367, 368, Ann.Cas.1917B, 502; In re Owens' Will, 164 Wis.
260, 159 N.W. 906, 907.
REVERTER. Reversion. A possibility of revert-
er is that species of reversionary interest which
exists when the grant is so limited that it may
possibly terminate. 1 Washb. Real Prop. 63. See
Formedon in the Reverter.
REVEST. To vest again. A seisin is said to
revest, where it is acquired a second time by the
party out of whom it has been divested. 1 Rop.
Husb. & Wife, 353. Opposed to "divest." The
words "revest" and "divest" are also applicable to
the mere right or title, as opposed to the posses-
sion. Brown.
REVESTIRE. In old European law. To return
or resign an investiture, seisin, or possession that
has been received; to reinvest; to re-enfeoff.
Spelman.
REVIEW. To re-examine judicially. A recon-
sideration; second view or examination; revision;
consideration for purposes of correction. Used
especially of the examination of a cause by an
appellate court; and of a second investigation of
a proposed public road by a jury of viewers.
Swan v. Justices of Superior Court, 222 Mass. 542,
111 N.E. 386, 389; State v. Griffiths, 137 Wash.
448, 242 P. 969, 970.
Bill of Review
In equity practice. A bill, in the nature of a
writ of error, filed to procure an examination
and alteration or reversal of a decree made upon
a former bill, which decree has been signed and
enrolled. Story, Eq. Pl. § 403.
Commission of Review
In English ecclesiastical law. A commission
formerly sometimes granted, in extraordinary
cases, to revise the sentence of the court of dele-
gates, when it was apprehended they had been
led into a material error. 3 Bl.Comm. 67.
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Court of Review
In England. A court established by 1 & 2 Wm.
IV. c. 56, for the adjudicating upon such matters
in bankruptcy as before were within the jurisdic-
tion of the lord chancellor. It was abolished in
1847.
Reviewing Taxation
The re-taxing or re-examining an attorney's
bill of costs by the master. The courts some-
times order the masters to review their taxation,
when, on being applied to for that purpose, it ap-
pears that items have been allowed or disallowed
on some erroneous principle, or under some mis-
taken impression. 1 Archb. Pr. K. B. 55.
REVILING CHURCH ORDINANCES. An of-
fense against religion punishable in England by
fine and imprisonment. 4 Steph.Comm. 208.
REVISE. To review, re-examine for correction;
to go over a thing for the purpose of amending,
correcting, rearranging, or otherwise improving
it; as, to revise statutes, or a judgment. Ameri-
can Indemnity Co. v. City of Austin, 112 Tex. 239,
246 S.W. 1019, 1023; State ex rel. Taylor v. Sco-
field, 184 Wash. 250, 50 P.2d 896, 897.
REVISED STATUTES. A body of statutes which
have been revised, collected, arranged in order,
and re-enacted as a whole. This is the legal title
of the collections of compiled laws of several of
the states, and also of the United States. Such
a volume is usually cited as "Rev. Stat.," "Rev.
St.," or "R. S."
REVISING ASSESSORS. In English law. Two
officers elected by the burgesses of non-parliamen-
tary municipal boroughs for the purpose of as-
sisting the mayor in revising the parish burgess
lists. Wharton.
REVISING BARRISTERS' COURTS. In English
law. Courts held in the autumn throughout the
country, to revise the list of voters for county
and borough members of parliament.
Abolished by the Representation of the People Act, 1918,
which repealed the statutes under which they existed.
Wharton.
REVISION. A re-examination or careful reading
over for correction or improvement. State Road
Commission of West Virginia v. West Virginia
Bridge Commission, 112 W.Va. 514, 166 S.E. 11,
13.
REVISION OF STATUTES. Is more than a re-
statement of the substance thereof in different lan-
guage, but implies a re-examination of them, and
may constitute a restatement of the law in a cor-
rected or improved form, in which case the state-
ment may be with or without material change,
end is substituted for and displaces and repeals
the former law as it stood relating to the sub-
jects within its purview. Maclean v. Brodigan,
41 Nev. 468, 172 P. 375; Elite Laundry Co. v. Dunn,
126 W.Va. 858, 30 S.E.2d 454, 458.
REVIVAL. The process of renewing the opera-
tive force of a judgment which has remained
dormant or unexecuted for so long a time that
execution cannot be issued upon it without new
process to reanimate it. Havens v. Sea Shore
Land Co., 57 N.J.Eq. 142, 41 A. 755.
The act of renewing the legal force of a con-
tract or obligation, which had ceased to be suffi-
cient foundation for an action, on account of the
running of the statute of limitations, by giving
a new promise or acknowledgment of it.
REVIVE. To renew, revivify; to make one's self
liable for a debt barred by the statute of limi-
tations by acknowledging it; or for a matrimon-
ial offense, once condoned, by committing another.
Police Jury of Caddo Parish v. City of Shreveport,
137 La. 1032, 69 So. 828, 831; Maclean v. Brodigan,
41 Nev. 468, 172 P. 375.
REVIVOR, BILL OF. In equity practice. A bill
filed for the purpose of reviving or calling into
operation the proceedings in a suit when, from
some circumstance, (as the death of the plain-
tiff,) the suit had abated.
REVIVOR, WRIT OF. In English practice.
Where it became necessary to revive a judgment,
by lapse of time, or change by death, etc., of the
parties entitled or liable to execution, the party
alleging himself to be entitled to execution might
sue out a writ of revivor in the form given in the
act, or apply to the court for leave to enter a
suggestion upon the roll that it appeared that he
was entitle.d to have and issue execution of the
judgment, such leave to be granted by the court
or a judge upon a rule to show cause, or a sum-
mons, to be served according to the then present
practice.
REVOCABLE. Susceptible of being revoked.
REVOCATION. The recall of some power, au-
thority, or thing granted, or a destroying or mak-
ing void of some deed that had existence until the
act of revocation made it void. It may be either
general, of all acts and things done before; or
special, to revoke a particular thing. 5 Coke, 90.
Ford v. Greenawalt, 292 Ill. 121, 126 N.E. 555, 556;
O'Hagan v. Kracke, 300 N.Y.S. 351, 361, 165 Misc.
4.
Revocation by act of the party is an intentional
or voluntary revocation. The principal instances
occur in the case of authorities and powers of at-
torney and wills.
A revocation in law, or constructive revocation,
is produced by a rule of law, irrespectively of the
intention of the parties. Thus, a power of attor-
ney is in general revoked by the death of the prin-
cipal. Sweet.
REVOCATION OF PROBATE. Is where probate
of a will, having been granted, is afterwards re-
called by the court of probate, on proof of a subse-
quent will, or other sufficient cause.
REVOCATION OF WILL. The recalling, annull-
ing or rendering inoperative an existing will, by
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some subsequent act of the testator, which may
be by the making of a new will inconsistent with
the terms of the first, or by destroying the old
will, or by disposing of the property to which it
related, or otherwise. Boudinot v. Bradford, 2
Dall. 268, 1 L.Ed. 375. Cutler v. Cutler, 130 N.C.
1, 40 S.E. 689, 57 L.R.A. 209, 89 Am.St.Rep. 854.
REVOCATIONE PARLIAMENT!. An ancient
writ for recalling a parliament. 4 Inst. 44.
REVOCATUR. Lat. It is recalled. This is the
term, in English practice, appropriate to signify
that a judgment is annulled or set aside for error
in fact; if for error in law, it is then said to be
reversed.
REVOKE. To annul or make void by recalling or
taking back, cancel, rescind, repeal, reverse.
O'Hagan v. Kracke, 300 N.Y.S. 351, 362, 165 Misc.
4.
REVOLT. The endeavor of the crew of a vessel,
or any one or more of them, to overthrow the
legitimate authority of her commander, with in-
tent to remove him from his command, or against
his will to take possession of the vessel by assum-
ing the government and navigation of her, or by
transferring their obedience from the lawful com-
mander to some other person. United States v.
Kelly, 11 Wheat. 417, 6 L.Ed. 508; Hamilton v.
U. S., C.C.A.Va., 268 F. 15, 18.
REVOLUTION. A complete overthrow of the es-
tablished government in any country or state
by those who were previously subject to it. Git-
low v. Kiely, D.C.N.Y., 44 F.2d 227, 232.
REVOLUTIONARY, adj. Pertaining to or con-
nected with, characterized by, or of nature of,
revolution. Gitlow v. Kiely, D.C.N.Y., 44 F.2d
227, 233.
REVOLUTIONARY, n. One who instigates or
favors revolution or one taking part therein. Git-
low v. Kiely, D.C.N.Y., 44 F.2d 227, 233.
REWARD. A recompense or premium offered or
bestowed by government or an individual in re-
turn for special or extraordinary services to be
performed, or for special attainments or achieve-
ments, or for some act resulting to the benefit of
the public; as, a reward for useful inventions,
fox the discovery and apprehension of criminals,
for the restoration of lost property. Kinn v. First
Nat. Bank, 95 N.W. 969, 118 Wis. 537, 99 Am.St.
Rep. 1012.
That which is offered or given for some service
or attainment; sum of money paid or taken for
(loing, or forbearing to do, some act. Kirk v.
Smith, 48 Mont. 489, 138 P. 1088, 1089.
REWME. In old records. Realm, or kingdom.
REX. Lat. The king. The king regarded as the
party prosecuting in a criminal action; as in the
form of entitling such actions, "Rex v. Doe."
REX DEBET ESSE SUB LEGE QUIA LEX FAC-
IT REGEM. The king ought to be under the law,
because the law makes the king. 1 Bl. Comm. 239.
REX EST LEGALIS ET POLITICUS. Lane, 27.
The king is both a legal and political person.
REX EST LEX VIVENS. Jenk. Cent. 17. The
king is the living law.
REX EST MAJOR SINGULIS, MINOR UNIVERS-
IS. Bract. 1. 1, c. 8. The king is greater than
any single person, less than all.
REX HOC SOLUM NON POTEST FACERE
QUOD NON POTEST INJUSTE AGERE. 11
Coke, 72. The king can do everything but an
injustice.
REX NON DEBIT ESSE SUB HOMINE, SED
SUB DEO ET SUT LEGE, QUIA LEX FACIT RE-
GEM. Bract. fol. 5. The king ought to be under
no man, but under God and the law, because the
law makes a king. Broom, Max. 47.
REX NON POTEST FALLERE NEC FALLI. The
king cannot deceive or be deceived. Grounds &
Rud. of Law 438.
REX NON POTEST PECCARE. The king cannot
do wrong; the king can do no wrong. 2 Rolle,
304. An ancient and fundamental principle of the
English constitution. Jenk. Cent. p. 9, case 16;
1 Bl. Comm. 246.
REX 'NUNQUAM MORITUR. The king never
dies. Broom, Max. 50; Branch, Max. (5th Ed.)
197; 1 Bl. Comm. 249.
RHANDIR. A part in the division of Wales be-
fore the Conquest; every township comprehend-
ed four gavels, and every gavel had four rhandirs,
and four houses or tenements constituted every
rhandir. Tayl. Hist. Ga y . 69.
RHODIAN LAWS. The earliest code or collec-
tion of maritime laws. It was formulated by the
people of the island of Rhodes, who, by their com-
mercial prosperity and the superiority of their
navies, had acquired the sovereignty of the seas.
Its date is very uncertain, but is supposed (by
Kent and others) to be about 900 B. C. Nothing
of it is now extant except the article on jettison,
which has been preserved in the Roman collec-
tions or Pandects (Dig. 14, 2; 3 Kent, Comm. 232,
233 "Lex Rhodia de Jactu.") The Lex Rhodia de
Jactu provided that when the goods of an owner
are thrown overboard for the safety of the ship
or of the property of other owners, he becomes
entitled to a ratable contribution. It has been
adopted into the law of all civilized nations.
Campbell, Rom. L. 137. Another code, under the
same name, was published in more modern times,
but is generally considered, by the best author-
ities, to be spurious. Schomberg, Mar. Laws
Rhodes, 37, 38; 3 Kent, Comm. 3, 4; Azuni, Mar.
Law, 265-296.
RIAL. A piece of gold coin current for 10s., in
the reign of Henry VI., at which time there were
half-rials and quarter-rials or rial-farthings. In
the beginning of Queen Elizabeth's reign, golden
rials were coined at 15s. a piece; and in the time
of James L there were rose-rials of gold at 30s.
and spur-rials at 15s. Lown. Essay Coins, 38.
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RIBAUD
RIBAUD. A rogue; vagrant; whoremonger; a
person given to all manner of wickedness. Cow-
ell.
RIBBONMEN. Associations or secret societies
formed in Ireland, having for their object the dis-
possession of landlords by murder and fire-rais-
ing. Wharton.
RICHARD ROE, otherwise TROUBLESOME.
The casual ejector and fictitious defendant in eject-
ment, whose services are no longer invoked.
RICOHOME. Span. In Spanish law. A noble-
man; a count or baron. 1 White, Recop. 36.
RIDER. A schedule or small piece of parchment
annexed to some part of a roll or record. It is
frequently familiarly used for any kind of a
schedule or writing annexed to a document which
cannot well be incorporated in the body of such
document. Thus, in passing bills through a leg-
islature, when a new clause is added after the
bill has passed through committee, such new
clause is termed a "rider." Brown. Cowell;
Blount; 2 Tidd, Pr. 730; Com. v. Barnett, 48 A.
976, 199 Pa. 161, 55 L.R.A. 882. An additional pa-
per attached to, and forming a part of, an insur-
ance policy. Hukle v. Great American Ins. Co.,
245 N.Y.S. 240, 242, 230 App.Div. 477.
RIDER-ROLL. Rider, which title see.
RIDGLING. A half-castrated horse. Brisco v.
State, 4 Tex.App. 221, 30 Am.Rep. 162.
RIDING ARMED. In English law. The offense
of riding or going armed with dangerous or un-
usual weapons is a misdemeanor tending to dis.
turb the public peace by terrifying the good peo-
ple of the land. 4 Steph. Comm. 357.
The Statute of Northampton, St. 2 Edw. III, c. 3, enact-
ed in 1328, which made this an indictable offense, was in
affirmance of the common law, and probably became a
part of the common law of the American colonies. 68
C.J. p. 5, n. 35.
RIDING CLERK. In English law. One of the six
clerks in chancery who, in his turn for one year,
kept the controlment books of all grants that
passed the great seal. The six clerks were super-
seded by the clerks of records and writs.
RIDINGS, (corrupted from trithings.)  The
names of the parts or divisions of Yorkshire,
which, of course, are three only, viz., East Riding,
North Riding, and West Riding.
RIEN. L. Fr. Nothing. It appears in a few
law French phrases.
RIEN CULP. In old pleading. Not guilty.
RIEN DIT. In old pleading. Says nothing, (nil
dicit.)
RIEN LUY DOIT. In old pleading. Owes him
nothing. The plea of nil debet.
RIENS EN ARRIERE. Nothing in arrear. A
plea in an action of debt for arrearages of ac-
count. Cowell.
RIENS LOUR DEUST. Not their debt. The old
form of the plea of nil debet. 2 Reeve, Eng. Law,
332.
RIENS PASSA PER LE FAIT. Nothing passed
by the deed. A plea by which a party might avoid
the operation of a deed, which had been enrolled
or acknowledged in court; the plea of non est
factum, not being allowed in such case.
RIENS PER DESCENT. Nothing by descent.
The plea of an heir, where he is sued for his an-
cestor's debt, and has no land from him by de-
scent, or assets in his hands. Cro. Car. 151; 1
Tidd, Pr. 645; 2 Tidd, Pr. 937.
RIER COUNTY. In old English law. After-
county; i. e., after the end of the county court.
A time and place appointed by the sheriff for the
receipt of the king's money after the end of his
county, or county court. Cowell.
RIFFLARE. To take away anything by force.
RIFLETUM. A coppice or thicket. Cowell.
RIGA. In old European law. A species of serv-
ice and tribute rendered to their lords by agricul-
tural tenants. Supposed by Spelman to be de-
rived from the name of a certain portion of land,
called, in England, a "rig" or "ridge," an elevated
piece of ground, formed out of several furrows.
Burrill.
RIGGING THE MARKET. A term of the stock-
exchange, denoting the practice of inflating the
price of given stocks, or enhancing their quoted
value, by a system of pretended purchases, de-
signed to give the air of an unusual demand for
such stocks. L. R. 13 Eq. 447.
RIGHT. As a noun, and taken in an abstract
sense, justice, ethical correctness, or consonance
with the rules of law or the principles of morals.
In this signification it answers to one meaning
of the Latin "jus," and serves to indicate law in
the abstract, considered as the foundation of all
rights, or the complex of underlying moral prin-
ciples which impart the character of justice to
all positive law, or give it an ethical content.
As a noun, and taken in a concrete sense, a
power, privilege, faculty, or demand, inherent in
one person and incident upon another. "Rights"
are defined generally as "powers of free action."
And the primal rights pertaining to men are un-
doubtedly enjoyed by human beings purely as
such, being grounded in personality, and existing
antecedently to their recognition by positive law.
But leaving the abstract moral sphere, and giving
to the term a juristic content, a "right" is well de-
fined as "a capacity residing in one man of con-
trolling, with the assent and assistance of the
state, the actions of others." Holl. Jur. 69.
The noun substantive "a right" signifies that which ju-
rists denominate a "faculty ;" that which resides in a de-
terminate person, by virtue of a given law, and which
avails against a person (or answers to a duty lying on a
person) other than the person in whom it resides. And
the noun substantive "rights" is the plural of the noun.
substantive "a right." But the expression "right," when
it is used as an adjective, is equivalent to the adjective
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RIGHT
"just." as the adverb "rightly" is equivalent to the adverb
"justly." And, when used as the abstract name corres-
ponding to the adjective "right," the noun substantive
"right" is synonymoms with the noun substantive "jus-
tice." Aust.Jur. § 264, not.
In a narrower signification, an interest or title
in an object of property; a just and legal claim
to hold, use, or enjoy it, or to convey or donate it,
as he may please. See Co. Litt. 345a.
The term "right," in civil society, is defined to mean
that which a man is entitled to have, or to do, or to re-
ceive from others within the limits prescribed by law.
Atehison & N. R. Co. v. Baty, 6 Neb. 40, 29 Am.Rep. 356.
That which one person ought to have or receive
from another, it being withheld from him, or not
in his possession. In this sense "right" has the
force of "claim," and is properly expressed by the
Latin "jus." Lord Coke considers this to be the
proper signification of the word, especially in
writs and pleadings, where an estate is turned to
a right; as by discontinuance, disseisin, etc. Co.
Litt. 345a.
See, also, Droit; Jus; Recht.
Classification
Rights may be described as perfect or imper-
fect, according as their action or scope is clear,
settled, and determinate, or is vague and unfixed.
Rights are either in personam or in rem. A.
right in personam is one which imposes an obli-
gation on a definite person. A right in rem is one
which imposes an obligation on persons gener-
ally; 1. e., either on all the world or on all the
world except certain determinate persons. Thus,
if I am entitled to exclude all persons from a giv-
en piece of land, I have a right in rem in respect
of that land; and, if there are one or more per-
sons, A., B., and C., whom I am not entitled to
exclude from it, my right is still a right in rem.
Sweet.
Rights may also be described as either primary
.or secondary. Primary rights are those which can
be created without reference to rights already
existing. Secondary rights can only arise for the
purpose of protecting or enforcing primary rights.
They are either preventive (protective) or rem-
edial (reparative.)  Sweet.
Preventive or protective secondary rights exist
in order to prevent the infringement or loss of
primary rights. They are judicial when they re-
quire the assistance -of a court of law for their en-
forcement, and extrajudicial when they are capa-
ble of being exercised by the party himself. Rem-
edial or reparative secondary rights are also ei-
their judicial or extrajudicial. They may further
be divided into (1) rights of restitution or restora-
tion, which entitle the person injured to be re-
placed in his original position; (2) rights of en-
forcement, which entitle the person injured to
the performance of an act by the person bound;
and (3) rights of satisfaction or compensation.
Sweet.
With respect to the ownership of external ob-
jects of property, rights may be classed as ab-
solute and qualified. An absolute right gives to
-the person in whom it inheres the uncontrolled
dominion over the object at all times and for all
purposes. A qualified right gives the possessor
a right to the object for certain purposes or un-
der certain circumstances only. Such is the right
of a bailee to recover the article bailed when it
has been unlawfully taken from him by a stran-
ger.
Rights are also either legal or equitable. The
former is the case where the person seeking to
enforce the right for his own benefit has the legal
title and a remedy at law. The latter are such as
are enforceable only in equity; as, at the suit of
cestui que trust.
Constitutional Law
There is also a classification of rights, with re-
spect to the constitution of civil society. Thus,
according to Blackstone, "the rights of persons,
considered in their natural capacities, are of two
sorts,—absolute and relative; absolute, which
are such as appertain and belong to particular
men, merely as individuals or single persons; rel-
ative, which are incident to them as members of
society, and standing in various relations to each
other." 1 Bl. Comm. 123. Johnson v. Johnson, 32
Ala. 637; People v. Berberrich, 20 Barb, (N. Y.)
224.
Rights are also classified in constitutional law
as natural, civil, and political, to which there is
sometimes added the class of "personal rights."
Natural rights are those which grow out of the
nature of man and depend upon personality, as
distinguished from such as are created by law and
depend upon civilized society; or they are those
which are plainly assured by natural law (Borden
v. State, 11 Ark. 519, 44 Am.Dec. 217) ; or those
which, by fair deduction from the present physi-
cal, moral, social, and religious characteristics
of man, he must be invested with, and which he
ought to have realized for him in a jural society,
in order to fulfill the ends to which his nature
calls him. 1 Woolsey, Polit. Science, p. 26. Such
are the rights of life, liberty, privacy, and good
reputation. See Black, Const. Law (3d Ed.) 523.
Civil rights are such as belong to every citizen
of the state or country, or, in a wider sense, to
all its inhabitants, and are not connected with the
organization or administration of government.
They include the rights of property, marriage,
protection by the laws, freedom of contract, trial
by jury, etc. Winnett v. Adams, 71 Neb. 817, 99
N.W. 681. Or, as otherwise defined, civil rights
are rights appertaining to a person in virtue of
his citizenship in a state or community. Rights
capable of being enforced or redressed in a civil
action. Also a term applied to certain rights se-
cured to citizens of the United States by the thir-
teenth and fourteenth amendments to the consti-
tution, and by various acts of congress made in
pursuance thereof. State of Iowa v. Railroad Co.,
C.C.Iowa, 37 F. 498, 3 L.R.A. 554; State v. Powers,
51 N.J.L. 432, 17 A. 969.
Political rights consist in the power to partici-
pate, directly or indirectly, in the establishment or
administration of government, such as the right
of citizenship, that of suffrage, the right to hold
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RIGHT
public office, and the right of petition. Black
Const. Law (3d Ed.) 524; Winnett v. Adams, 71
Neb. 817, 99 N.W. 681.
Personal rights is a term of rather vague im-
port, but generally it may be said to mean the
right of personal security, comprising those of
life, limb, body, health, reputation, and the right
of personal liberty.
As an Adjective
The term "right" means just, morally correct,
consonant with ethical principles or rules of posi-
tive law. It is the opposite of wrong, unjust, il-
legal.
Old English Law
The term denoted an accusation or charge of
crime. Fitzh. Nat. Brev. 66 F.
Other Compound and Descriptive Terms
Base right. In Scotch law, a subordinate right;
the right of a subvassal in the lands held by him.
Bell.
Bill of rights.  See Bill.
Common right. See Common.
Declaration of rights. See Bill of Rights, under
Bill.
Exclusive right. See Exclusive Right.
Existing right. See Existing Right.
Marital rights. See Marital.
Mere right. In the law of real estate, the mere
right of property in land; the right of a pro-
prietor, but without possession or even the right
of possession; the abstract right of property.
Patent right. See Patent.
Petition of right. See Petition.
Private rights. Those rights which appertain
to a particular individual or individuals, and re-
late either tc the person, or to personal or real
property. 1 Chit. Gen. Pr. 3.
The term "private right," as used with reference to the
right of a person to injunctive relief, is used as a mere
distinguishing term from "public right," and not as mean-
ing any particular monopolistic right. Long v. Southern
Express Co., D.C.Fla., 201 F. 441, 444. "Private rights" of
a municipal corporation, as effecting the running of the
statute of limitations, are such as only that part of the
municipality included within the corporate limits of a
municipality are interested in. Board of Com'rs of Wood-
ward County v. Willett, 49 Okl. 254, 152 P. 365, 366, L.R.A.
1916E, 92.
Real right. In Scotch law. That which en-
titles him who is vested with it to possess the
subject as his own, and, if in the possession of
another, to demand from him its actual .posses-
sion. Real rights affect the subject itself; per-
sonal are founded in obligation. Erskine, Inst.
3, 1, 2.
Right heir. See Heir.
Riparian rights. See Riparian.
Vested rights. See Vested.
Writ of right. A procedure for the recovery
of real property after not more than sixty years'
adverse possession; the highest writ in the law,
sometimes called, to distinguish it from others of
the droitural class, the "writ of right proper."
Abolished by 3 & 4 Wm. IV. c. 27. 3 Steph. Comm.
392.
Writ of right close. An abolished writ which
lay for tenants in ancient demesne, and others of
a similar nature, to try the right of their lands
and tenements in the court of the lord exclusively.
1 Steph. Comm. 224.
RIGHT AND WRONG TEST. Under "this test"
if, at the time of committing an act, the party was
laboring under such a defect of reason from dis-
ease of the mind as not to know the nature and
quality of the act he was doing, or if he did know
the nature and quality thereof, that he did not
know that he was doing what was wrong, he
should not be held responsible under the criminal
law. State v. Wallace, 170 Or. 60, 131 P.2d 222,
229, 230.
RIGHT IN ACTION. This is a phrase frequently
used in place of chose in action, and having an
identical meaning.
RIGHT IN COURT. See Rectus in Curia.
RIGHT OF ACTION. The right to bring suit;
a legal right to maintain an action, growing out of
a given transaction or state of facts and based
thereon. Hibbard v. Clark, 56 N.H. 155, 22 Am.
Rep. 442; Webster v. County Com'rs, 63 Me. 29.
By the old writers the phrase is commonly used to de-
note that a person has lost a right of entry, and has noth-
ing but a right of action left. Co.Litt. 363b.
RIGHT OF DISCUSSION. In Scotch law. The
right which the cautioner (surety) has to insist
that the creditor shall do his best to compel the
performance of the contract by the principal debt-
or, before he shall be called upon. 1 Bell, Comm.
347.
RIGHT OF DIVISION. In Scotch law. The right
which each of several cautioners (sureties) has
to refuse to answer for more than his own share
of the debt. To entitle the cautioner to this right
the other cautioners must be solvent, and there
must be no words in the bond to exclude it. 1
Bell, Comm. 347.
RIGHT OF ENTRY. The right of taking or re-
suming possession of land by entering on it in a
peaceable manner.
RIGHT OF HABITATION. In Louisiana. The
right to occupy another man's house as a dwell-
ing, without paying rent or other compensation.
Civ.Code La. art. 627.
RIGHT OF LOCAL SELF–GOVERNMENT. Pow-
er of citizens to govern themselves, as to matters
purely local in nature, through officers of their
own selection. City of Ardmore v. Excise Board
of Carter County, 155 Oki. 126, 8 P.2d 2, 11.
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RIGHT OF POSSESSION. Which may reside in
one man, while another has the actual possession,
being the right to enter and turn out such actual
occupant; e. g., the right of a disseisee. An ap-
parent right of possession is one which may be
defeated by a better; an actual right of posses-
sion, one which will stand the test against all
opponents. 2 Bl. Comm. 196; Cahill v. Pine Creek
Oil Co., 38 Okl. 568, 134 P. 64, 65.
RIGHT OF PRIVACY. See Privacy.
RIGHT OF PROPERTY. The mere right of prop-
erty in land; the abstract right which remains to
the owner after he has lost the right of posses-
sion, and to recover which the writ of right was
given. United with possession, and the right of
possession, this right constitutes a complete title
to lands, tenements, and hereditaments. 2 Bl.
Comm. 197.
RIGHT OF REDEMPTION. The right to disen-
cumber property or to free it from a claim or
lien; specifically, the right (granted by statute
only) to free property from the incumbrance of a
foreclosure or other judicial sale, or to recover the
title passing thereby, by paying what is due, with
interest, costs, etc. Not to be confounded with
the "equity of redemption," which exists independ-
ently of statute but must be exercised before sale.
Mayer v. Farmers' Bank, 44 Iowa 216; Millett v.
Mullen, 95 Me. 400, 49 A. 871. Western Land &
Cattle Co. v. National Bank of Arizona at Phoenix,
28 Ariz. 270, 236 P. 725, 726.
RIGHT OF RELIEF. In Scotch law. The right
of a cautioner (surety) to demand reimbursement
from the principal debtor when he has been com-
pelled to pay the debt. 1 Bell, Comm. 347.
RIGHT OF REPRESENTATION AND PER-
FORMANCE. By the acts 3 & 4 Wm. IV. c. 15,
and 5 & 6 Vict. c. 45, the author of a play, opera,
or musical composition, or his assignee, has the
sole right of representing or causing it to be rep-
resented in public at any place in the British do-
minions during the same period as the copyright
in the work exists. The right is distinct from the
copyright, and requires to be separately regis-
tered. Sweet.
RIGHT OF SEARCH. In international law. The
right of one vessel, on the high seas, to stop a
vessel of another nationality and examine her
papers and (in some cases) her cargo. Thus, in
time of war, a vessel of either belligerent has the
right to search a neutral ship, encountered at sea,
to ascertain whether the latter is carrying contra-
band goods.
RIGHT OF WAY. The right of passage or of
way is a servitude imposed by law or by conven-
tion, and by virtue of which one has a right to
pass on foot, or horseback, or in a vehicle, to
drive beasts of burden or carts, through the es-
tate of another. When this servitude results from
the law, the exercise of it is confined to the wants
of the person who has it. When it is the result
Black's Law Dictionary Revised 4th Ed.-94
of a contract, its extent and the mode of using it
is regulated by the contract. Civ.Code La. art.
722.
"Right of way," in its strict meaning, is the right of
passage over another man's ground; and in its legal and
generally accepted meaning, in reference to a railway, it is
a mere easement in the lands of others, obtained by lawful
condemnation to public use or by purchase. It would be
using the term in an unusual sense, by applying it to an ab-
solute purchase of the fee-simple of lands to be used for
a railway or any other kind of a way. Williams v. West-
ern Union Ry. Co., 50 Wis. 76, 5 N.W. 482. And see Kripp
v. Curtis, 71 Cal. 62, 11 P. 879; Stuyvesant v. Woodruff.
21 N.J.L. 136, 57 Am. Dec. 156.
"Right of way" has a twofold significance, being some-
times used to mean the mere intangible right to cross, a
right of crossing, a right of way, and often used to other-
wise indicate that strip of land which a railroad appropri-
ates to its own use, and upon which it builds its roadbed.
Marion, B. & E. Traction Co. v. Simmons, 180 Ind. 289, 102
N.E. 132.
The "right of way" is a space of conventional width
for one or more railroad tracks, while a "railroad yard"
might be extended indefinitely. City of New York v. New
York & H. R. Co., Sup., 169 N.Y.S. 12, 14.
RIGHT PATENT. An obsolete writ, which was
brought for lands and tenements, and not for an
advowson, or common, and lay only for an estate
in fee-simple, and not for him who had a, lesser
estate; as tenant in tail, tenant in frank mar-
riage, or tenant for life. Fitzh. Nat. Brev. 1.
RIGHT TO BEGIN. On the hearing or trial of a
cause, or the argument of a demurrer, petition,
etc., the right to begin is the right of first address-
ing the court or jury. The right to begin is fre-
quently of importance, as the counsel who begins
has also the right of replying or having the last
word after the counsel on the opposite side has
addressed the court or jury. Sweet.
RIGHT TO REDEEM. Right of redemption,
which title see.
RIGHTS OF PERSONS. Rights which concern
and are annexed to the persons of men. 1 Bl.
Comm. 122.
RIGHTS OF THINGS. Such as a man may ac-
quire over external objects, or things unconnected
with his person. 1 Bl. Comm. 122.
RIGHTS, PETITION OF. See Petition.
RIGOR JURIS. Lat. Strictness of law. Latch,
150. Distinguished from gratia curice, favor of
the court.
RIGOR MORTIS. In medical jurisprudence. Cad-
averic rigidity; a rigidity or stiffening of the
muscular tissue and joints of the body, which
sets in at a greater or less interval after death,
but usually within a few hours, and which is one
of the recognized tests of death.
RING. A clique; an exclusive combination of
persons for illegitimate or selfish purposes; as to
control elections or political affairs, distribute of-
fices, obtain contracts, control the market or the
stock-exchange, etc. Schomberg v. Walker, 132
Cal. 224, 64 P. 290.
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RING—DROPPING. In criminal law. A phrase
applied in England to a trick frequently prac-
tised in committing larcenies.
It is difficult to define it; it will be sufficiently exem-
plified by the following cases. The prisoner, with some ac-
complices, being in company with the prosecutor, pretend-
ed to find a valuable ring wrapped up in a paper, appear-
ing to be a jeweller's receipt for "a rich brilliant diamond
ring." They offered to leave the ring with the prosecutor
if he would deposit some money and his watch as a securi-
ty. The prosecutor, having accordingly laid down his
watch and money on a table, was beckoned out of the
room by one of the confederates, while the others took
away his watch and money. This was held to amount
to a larceny; 1 Leach 273. In another case, under similar
circumstances, the prisoner procured from the prosecutor
twenty guineas, promising to return them the next morn-
ing, and leaving the false jewel with him. This ,was also
held to be larceny; 1 Leach 314; 2 East, Pl.Cr. 679.
RINGING THE CHANGES. A larceny effected
by tendering a large bill or coin in payment of a
small purchase and after correct change has been
given, asking for other change and repeating the
request until in the confusion of mind created by
so many operations, more money is obtained than
the thief is entitled to. Howell v. State, 28 Ala.
App. 249, 182 So. 96, 97.
RINGING UP. A custom among commission mer-
chants and brokers (not unlike the clearing-house
system) by which they exchange contracts for
sale against contracts for purchase, or reciprocally
cancel such contracts, adjust differences of price
between themselves, and surrender margins. Sam-
uels v. Oliver, 130 Ill. 73, 22 N.E. 499; U. S. v.
New York Coffee & Sugar Exchange, 44 S.Ct. 225,
226, 263 U.S. 611, 68 L.Ed. 475.
RINGS—GIVING. In English practice. A custom
observed by serjeants at law, on being called to
that degree or order. The rings are given to the
judges, and bear certain mottoes, selected by the
serjeant about to take the degree. Brown.
RIOT. In criminal law. A tumultuous disturb-
ance of the peace by three persons or more, as-
sembling together of their own authority, with an
intent mutually to assist each other against any
who shall oppose them, in the execution of some
enterprise of a private nature, and afterwards ac-
tually executing the same in a violent and turbu-
lent manner, to the terror of the people, whether
the act intended were of itself lawful or unlaw-
ful. Hawk. P. C. c. 65, § 1. State v. Stalcup, 23
N.C. 30, 35 Am.Dec. 732. Symonds v. State, 66
Okl.Cr. 49, 89 P.2d 970, 973.
When three or more persons together, and in a violent
or tumultuous manner, assemble together to do an unlaw-
ful act, or together do a lawful act in an unlawful, violent,
or tumultuous manner, to the disturbance of others, they
are guilty of a riot. Any use of force or violence, disturb-
ing the public peace, or any threat to use such force or
violence, if accompanied by immediate power of execution,
by two or more persons acting together, and without au-
thority of law, is a riot.
RIOT ACT. A celebrated English statute, which
provides that, if any twelve persons or more are
unlawfully assembled and disturbing the peace,
any sheriff, under-sheriff, justice of the peace, or
mayor may, by proclamation, command them to
disperse, (which is familiarly called "reading the
riot act,") and that if they refuse to obey, and re-
main together for the space of one hour after such
proclamation, they are all guilty of felony. The
act is 1 Geo. I, St. 2, c. 5.
RIOTER. One who encourages, promotes, or
takes part in riots. Symonds v. State, 66 Okl.Cr.
49, 89 P.2d 970, 974.
RIOTOSE. L. Lat. Riotously. A formal and
essential word in old indictments for riots. 2
Strange, 834.
RIOTOUS ASSEMBLY. In English criminal law.
The unlawful assembling of twelve persons or
more, to the disturbance of the peace, and not dis-
persing upon proclamation. 4 Bl. Comm. 142;
4 Steph. Comm. 273. And see Madisonville v.
Bishop, 113 Ky. 106, 67 S.W. 269, 57 L.R.A. 130.
RIOTOUSLY. A technical word, properly used
in indictments for riot. It of itself implies force
and violence. 2 Chit. Crim. Law, 489.
RIPA. Lat. The banks of a river, or the place
beyond which the waters do not in their natural
course overflow.
RIPARIA. A medieval Latin word, which Lord
Coke takes to mean water running between two
banks; in other places it is rendered "bank."
RIPARIAN. Belonging or relating to the bank
of a river; of or on the bank. Land lying beyond
the natural watershed of a stream is not "ripar-
ian." Bathgate v. Irvine, 126 Cal. 135, 58 P. 442,
77 Am.St.Rep. 158. Town of Gordonsville v. Zinn,
129 Va. 542, 106 S.E. 508, 513, 14 A.L.R. 318.
The term is sometimes used as relating to the shore of
the sea or other tidal water, or of a lake or other consid-
erable body of water not having the character of a water-
course. But this , is not accurate. The proper word to be
employed in such connections is "littoral."
RIPARIAN NATIONS. In international law.
Those who possess opposite banks or different
parts of banks of one and the same river.
RIPARIAN OWNER. A riparian proprietor;
one who, owns land on the bank of a river. Met-
tler v. Ames Realty Co., 61 Mont. 152, 201 P. 702,
703. See, also, Littoral.
RIPARIAN PROPRIETOR. An owner of land,
bounded generally upon a stream of water, and
as such having a qualified property in the soil
to the thread of the stream with the privileges
annexed thereto by law. Potomac Steamboat Co.
v. Upper Potomac Steamboat Co., 3 S.Ct. 445, 109
U.S. 672, 27 L.Ed. 1070.
RIPARIAN RIGHTS. The rights of the owners
of lands on the banks of watercourses, relating to
the water, its use, ownership of soil under the
stream, accretions, etc. Mobile Transp. Co. v.
Mobile, 128 Ala. 335, 30 So. 645, 64 L.R.A. 333, 86
Am.St.Rep. 143.
Generally speaking such rights are : (1) Use of water for
general purposes, as bathing and domestic use; (2) to
wharf out to navigability ; (3) access to navigable waters.
Hilt v. Weber, 252 Mich. 198, 233 N.W. 159, 168, 71 A.L.R.
1238.
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RIPARIAN WATER. Water which is below the
highest line of normal flow of the river, or stream,
as distinguished from flood water. Humphreys-
Mexia Co. v. Arseneaux, 116 Tex. 603, 297 S.W.
225, 229, 53 A.L.R. 1147; Motl v. Boyd, 116 Tex.
82, 286 S.W. 458, 468.
RIPARUM USUS PUBLICUS EST JURE GEN-
TIUM, SICUT IPSIUS FLUMINIS. The use of
river-banks is by the law of nations public, like
that of the stream itself. Dig. 1, 8, 5, pr.; Fleta, 1.
3, c. 1, § 5.
RIPE FOR JUDGMENT. A suit, when it is so
far advanced, by verdict, default, confession, the
determination of all pending motions, or other dis-
position of preliminary or disputed matters, that
nothing remains for the court but to render the
appropriate judgment. Hosmer v. Hoitt, 161 Mass.
173, 36 N.E. 835.
RIPTOWELL, or REAPTOWEL. A gratuity or
reward given to tenants after they had reaped
their lord's corn, or done other customary duties.
Cowell.
RIPUARIAN LAW. An ancient code of laws by
which the Ripuarii, a tribe of Franks who occu-
pied the country upon the Rhine, the Meuse, and
the Scheldt, were governed. They were first re-
duced to writing by Theodoric, king of Austrasia,
and completed by Dagobert. Spelman.
RIPUARIAN PROPRIETORS. Owners of lands
bounded by a river or watercourse.
RISCUS. L. Lat. In the civil law. A chest for
the keeping of clothing. Calvin.
RISING OF COURT. Properly the final adjourn-
ment of the court for the term, though the term is
also sometimes used to express the cessation of
judicial business for the day or for a recess; it is
the opposite of "sitting" or "session." State v.
Weaver, 11 Neb. 163, 8 N.W. 385.
RISK. In insurance law; the danger or hazard
of a loss of the property insured; the casualty
contemplated in a contract of insurance; the de-
gree of hazard; a specified contingency or peril;
and, colloquially, the specific house, factory, ship,
etc., covered by the policy. People ex rel. Daily
Credit Service Corporation v. May, 147 N.Y.S.
487, 489, 162 App.Div. 215; Old Colony Trust Co.
v. Commissioner of Internal Revenue, C.C.A.1,
102 F.2d 380, 382.
Assumption of risk. See that title.
Obvious risk. See Obvious.
Perceivable risk. See Perceivable.
RISK INCIDENT TO EMPLOYMENT. Within
Workmen's Compensation Acts, one growing out
of or connected with what workman must do in
fulfilling his contract of service, and may be either
ordinary risk, directly connected with employ-
ment, or extraordinary risk indirectly connected
with employment because of its special nature.
Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43,
178 A. 181, 184. Olson Drilling Co. v. Industrial
Commission, 386 Ill. 402, 54 N.E.2d 452, 454.
RISK OF NAVIGATION. Not the equivalent of
"perils of navigation," but is of more comprehen-
sive import than the latter. Pitcher v. Hennessey,
48 N.Y. 419.
RISTOURNE. Fr. In insurance law; the disso-
lution of a policy or contract of insurance for any
cause. Emerig. Traite des Assur. c. 16.
RITE. Lat. Duly and formally; legally; prop-
erly; technically.
RIVAGE. In French law. The shore, as of the
sea.
In English law. A toll anciently paid to the
crotvn for the passage of boats or vessels on cer-
tain rivers. Cowell.
RIVEARE. To have the liberty of a river for
fishing and fowling. Cowell.
RIVER. A natural stream of water, of greater
volume than a creek or rivulet, flowing in a more
or less permanent bed or channel, between de-
fined banks or walls, with a current which may
either be continuous in one direction or affected
by the ebb and flow of the tide. Alabama v.
Georgia, 23 How. 513, 16 L.Ed. 556; Motl v. Boyd,
116 Tex. 82, 286 S.W. 458, 467.
Rivers are public or private; and of public rivers some
are navigable and others not. The common-law distinction
is that navigable rivers are those only wherein the tide ebbs
and flows. But, in modern usage, any river is navigable
which affords passage to ships and vessels, irrespective of
its being affected by the tide.
Public river. A river capable in its natural
state of some useful service to the public because
of its existence as such, navigability being not the
sole test. St. Regis Paper Co. v. New Hampshire
Water Resources Board, 92 N.H. 164, 26 A.2d 832,
838.
RIVER BANKS. The boundaries which confine
the water to its channel throughout the entire
width when stream is carrying its maximum quan-
tity of water. Mammoth Gold Dredging Co. v.
Forbes, 39 Cal.App.2d 739, 104 P.2d 131, 137.
RIXA. Lat. In the civil law. A quarrel; a strife
of words. Calvin.
RIXATRIX. In old English law. A scold; a
scolding or quarrelsome woman. 4 Bl. Comm. 168.
ROAD. A highway; an open way or public pas-
sage; a line of travel or communication extending
from one town or place to another; a strip of
land appropriated and used for purposes of trav-
el and communication between different places.
Shannon v. Martin, 164 Ga. 872, 139 S.E. 671, 672,
54 A.L.R. 1246; San Francisco-Oakland Terminal
Rys. v. Alameda County, 66 Cal.App. 77, 225 P.
304, 305. For "Farm-To-Market Roads," see that
title.
In maritime . law. An open passage of the sea
that receives its denomination commonly from
some part adjacent, which, though it lie out at
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sea, yet, in respect of the situation of the land
adjacent, and the depth and wideness of the place,
is a safe place for the common riding or anchor-
ing of ships; as Dover road, Kirkley road, etc.
Hale de Jure Mar. pt. 2, c. 2; The Cuzco, D.C.
Wash., 225 F. 169, 176.
Law of the road. Custom or practice which
has become crystallized into accepted system of
rules regulating travel on highways. Short v.
Robinson, 280 Ky. 707, 134 S.W.2d 594, 596. It re-
lates to safety of travel, and is adjustment of
rights of travelers using highway at same time.
Cofran v. Griffin, 85 N.H. 29, 153 A. 817, 818.
In its specific application, the phrase "law of the road"
refers to the rule which requires that vehicles meeting
shall turn to the right in passing, or keep to the right
of the middle of the highway. Blashfleld, Cyc. of Auto-
mobile Law and Prac., Perm. Ed., §§ 636, 891.
Private road. This term has various meanings:
(1) A road, the soil of which belongs to the own-
er of the land which it traverses, but which is bur-
dened with a right of way. Morgan v. Livingston,
6 Mart. 0. S. (La.) 231. (2) A neighborhood way,
not commonly used by others than the people of
the neighborhood, though it may be used by any
one having occasion. State v. Mobley, 1 McMul.
(S.C.) 44. (3) A road intended for the use of one
or more private individuals, and not wanted nor
intended for general public use, which may be
opened across the lands of other persons by stat-
utory authority in some states. Madera County
v. Raymond Granite Co., 139 Cal. 128, 72 P. 915.
(4) A road which is only open for the benefit of
certain individuals to go from and to their homes
for the service of their lands and for the use of
some estates exclusively.
Public road. A highway; a road or way estab-
lished and adopted (or accepted as a dedication)
by the proper authorities for the use of the gen-
eral public, and over which every person has a
right to pass and to use it for all purposes of trav-
el or transportation to which it is adapted and de-
voted. State ex rel. Clay County v. Hackmann,
270 Mo. 658, 195 S.W. 706, 708; Schier v. State, 96
Ohio St. 245, 117 N.E. 229.
ROAD DISTRICTS. Public or quasi municipal
corporations organized or authorized by statutory
authority in many of the states .for the special
purpose of establishing, maintaining, and caring
for public roads and highways within their lim-
its, sometimes invested with powers of local taxa-
tion, and generally having elective officers styled
"overseers" or "commissioners" of roads. Farm-
er v. Myles, 106 La. 333, 30 So. 858; San Bernar-
dino County v. Southern Pac. R. Co., 137 Cal. 659,
70 P. 782; Madden v. Lancaster County, C.C.A.
Neb., 65 F. 191, 12 C.C.A. 566.
ROAD HOG. As applied to automobilists means
that they selfishly occupy portions of the road
which belong to others. Blue's Truck Line v.
Harwell, 59 Ga.App. 305, 200 S.E. 500, 502.
ROAD TAX. A tax for the maintenance and re-
pair of the public roads within the particular jur-
isdiction, levied either in money or in the form
of so many days' labor on the public roads exacted
of all the inhabitants of the district. See Lewin
v. State, 77 Ala. 46.
ROADBED. The whole material laid in place and
ready for travel. Menut & Parks Co. v. Cray, 114
Vt. 41, 39 A.2d 342, 345, 156 A.L.R. 404.
ROADSTEAD. In maritime law. A known gen-
eral station for ships, notoriously used as such,
and distinguished by the name; and not any spot
where an anchor will find bottom and fix itself. 1
C. Rob. Adm. 232.
ROB. To take personalty in possession of anoth-
er from his person or his presence, feToniously
and against his will, by violence or by putting him
in fear. People v. Flohr, 30 Cal.App.2d 576, 86 P.
2d 862, 864.
ROBBATOR. In old English law. A robber. Rob-
batores et burglatores, robbers and burglars.
Bract. fol. 115b.
ROBBER. One who commits a robbery. The
term is not in law synonymous with "thief," but
applies only to one who steals with force or open
violence.  De Rothschild v. Royal Mail Steam
Packet Co., 7 Exch. 742; The Manitoba, D.C.N.Y.,
104 F. 151.
ROBBERY. Felonious taking of personal prop-
erty in the possession of another, from his person
or immediate presence, and against his will, ac-
complished by means of force or fear. 1 Hawk.
P. C. 25; 4 Bl. Comm. 243; United States v.
Jones, 3 Wash. C. C. 209, F.Cas.No.15,494; Arm-
strong v. Commonwealth, 190 Ky. 217, 227 S.W.
162, 163; Robards v. State, 37 Okl.Cr. 371, 259 P.
166, 168. Where a person, either with violence or
with threats of injury, and putting the person
robbed in fear, takes and carries away a thing
which is on the body, or in the immediate pres-
ence of the person from whom it is taken, under
such circumstances that, in the absence of vio-
lence or threats, the act committed would be a
theft. Steph. Crim. Dig. 208; 2 Russ. Crimes, 78.
And see, further, State v. Osborne, 116 Iowa 479,
89 N.W. 1077. Thomas v. State, 91 Ala. 34, 9 So.
81.
Generally speaking, the elements of "robbery" are the
taking of personal property or money from the person or
presence of another by actual or constructive force with-
out his consent and with the animus furandi or intent to
steal. Robbery may thus be said to be a compound lar-
ceny, composed of the crime of larceny from the person
with the aggravation of force, actual or constructive, used
in the taking. Williams v. Mayo, 126 Fla. 871, 172 So. 86,
87.
Highway Robbery. The crime of robbery com-
mitted upon or near a public highway. State v.
Brown, 113 N.C. 645, 18 S.E. 51; Anderson v. Hart-
ford Accident & Indemnity Co., 247 P. 507, 510, 77
Cal.App. 641; The felonious and forcible taking
of property from the person of another on a high-
way. State v. Holt, 192 N.C. 490, 135 S.E. 324,
325. It differs from robbery in general only in
the place where it is committed. Robbery by hold-
up originally applied to the stopping and robbery
of traveling parties, but the term has acquired a
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broader meaning. It has come to be applied to
robbery in general, by the use of force or putting
in fear. Duluth St. Ry. Co. v. Fidelity & Deposit
Co. of Maryland, 136 Minn. 299, 161 N.W. 595,
596, L.R.A. 1917D, 684. In England, by St. 23 Hen.
VIII. c. 1, this was made felony without benefit
of clergy, while robbery committed elsewhere was
less severely punished. The distinction was abol-
ished by St. 3 & 4 W. & M. c. 9, and in this coun-
try it has never prevailed generally.
ROBE. Fr. A word anciently used by sailors
for the cargo of a ship. The Italian "roba" had
the same meaning.
ROBERDSMEN. In old English law. Persons
who, in the reign of Richard I., committed great
outrages on the borders of England and Scotland.
Said to have been the followers of Robert Hood,
or Robin Hood. 4 Bl. Comm. 246.
ROD. A lineal measure of sixteen feet and a
half, otherwise called a "perch."
ROD KNIGHTS. In feudal law. Certain servi-
tors who held their land by serving their lords on
horseback. Cowell.
ROD LICENSE. In Canadian law, a license, grant-
ed on payment of a tax or fee, permitting the
licensee to angle for fish (particularly salmon)
which are otherwise protected or preserved.
ROGARE. Lat. In Roman law. To ask or solic-
it. Rogare legem, to ask for the adoption of a
law, i. e., to propose it for enactment, to bring in
a bill. In a derivative sense, to vote for a law so
proposed; to adopt or enact it.
ROGATIO. Lat. In Roman law. An asking for a
law; a proposal of a law for adoption or passage.
Derivatively, a law passed by such a form.
ROGATIO TESTIUM. This in making a nun-
cupative will, is where the testator formally calls
upon the persons present to bear witness that he
has declared his will. Williams' Ex'rs, 116;
Browne, Prob. Pr. 59.
ROGATION WEEK. In English ecclesiastical
law. The second week before Whitsunday, thus
called from three fasts observed therein, the Mon-
day, Tuesday, and Wednesday, called "Rogation
days," because of the extraordinary prayers then
made for the fruits of the earth, or as a prepara-
tion for the devotion of Holy Thursday. Wharton.
ROGATIONES, QUIESTIONES, ET POSITIONES
DEBENT ESSE SIMPLICES. Hob. 143. De-
mands, questions, and claims ought to be simple.
ROGATOR. Lat. In Roman law. The proposer
of a law or rogation.
ROGATORY LETTERS. A commission from one
judge to another requesting him to examine a
witness. See Letter.
ROGO. Lat. In Roman law. I ask; I request.
A precatory expression often used in wills. Dig.
30, 108, 13, 14.
ROGUE. In English criminal law. An idle and
disorderly person; a trickster; a wandering beg-
gar; a vagrant or vagabond. 4 Bl. Comm. 169.
ROLE D'EQUIPAGE, In French mercantile law.
The list of a ship's crew; a muster roll.
ROLL, n. A schedule of parchment which may be
turned up with the hand in the form of a pipe or
tube. Jacob.
A schedule or sheet of parchment on which le-
gal proceedings are entered. Brown.
In English practice, there were formerly a great
variety of these rolls, appropriated to the different
proceedings; such as the warrant of attorney
roll, the process roll, the recognizance roll, the
imparlance roll, the plea roll, the issue roll, the
judgment roll, the scire facias roll, and the roil
of proceedings on writs of error. 2 Tidd, Pr. 729,
730.
In modern practice, the term is sometimes used
to denote a record of the proceedings of a court
or public office.
Thus, in English practice, the roll of parchment on
which the issue is entered is termed the "Issue roll." So
the rolls of a manor, wherein the names, rents, and serv-
ices of the tenants are copied and enrolled, are termed
the "court rolls." There are also various other rolls ; as
those which contain the records of the court of chancery,
those which contain the registers of the proceedings of old
parliaments, called "rolls of parliament," etc. Brown.
Assessment Roll
In taxation, the list or roll of taxable persons
and property, completed, verified, and deposited by
the assessors. Bank v. Genoa, 28 Misc. 71, 59
N.Y.S. 829; Adams v. Brennan, 72 Miss. 894, 18
So. 482.
Judgment Roll
In English practice. A roll of parchment con-
taining the entries of the proceedings in an action
at law to the entry of judgment inclusive, and
which is filed in the treasury of the court. 1
Arch. Pr. K. B. 227, 228; 2 Tidd, Pr. 931; Pettis
v. Johnston, 78 Okl. 277, 190 P. 681, 700. A rec-
ord made of the issue roll (q, v.), which, after
final judgment has been given in the cause, as-
sumes this name. Steph. Pl. Andr. ed. § 97; 3
Chitty, Stat. 514; Freem. Judg. § 75. The Judi-
cature Act of 1875 requires every judgment to be
entered in a book by the proper officer.
It has been abolished, as such, in New Jersey; Jennings
v. Philadelphia & R. Co., C.C.N.J., 23 F. 569, 571. There
is said to be hopeless confusion in the cases in this coun-
try as to what constitutes the judgment roll. All the
cases agree that the complaint, the summons and, most of
them, the return on the summons, the affidavit for publi-
cation in case of constructive service, and papers of that
sort are included therein; Terry v. Gibson, 23 Colo.App.
273, 128 P. 1127, 1128, citing many cases, and also 1 Gr.
Evid. 511, and Freem.Judg. § 78; Madsen v. Hodson, 69
Utah 527, 256 P. 792, 793. See the title Roll.
Master of the Rolls
See Master.
Oblate Rolls
See that title.
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Rolls of Parliament
The manuscript registers of the proceedings of
old parliaments; in these rolls are likewise a
great many decisions of difficult points of law,
which were frequently, in former times, referred
to the determination of this supreme court by the
judges of both benches, etc.
Rolls of the Exchequer
There are several in this court relating to the
revenue of the country.
Rolls of the Temple
In English law. In each of the two Temples is
a roll called the "calves-head roll," wherein every
bencher, barrister, and student is taxed yearly;
also meals to the cook and other officers of the
houses, in consideration of a dinner of calves-head,
provided in Easter term. Orig. Jur. 199.
Rolls Office of the Chancery
In English law. An office in Chancery Lane,
London, which contains rolls and records of the
high court of chancery, the master whereof is the
second person in the chancery, etc. The rolls
court was there held, the master of the rolls sit-
ting as judge; and that judge still sits there as
a judge of the chancery division of the high court
of justice. Wharton.
Tax Roll
A schedule or list of the persons and property
subject to the payment of a particular tax, with
the amounts severally due, prepared and authenti-
cated in proper form to warrant the collecting of-
ficers to proceed with the enforcement of the tax.
Babcock v. Beaver Creek Tp., 64 Mich. 601, 31 N.
W. 423; Smith v. Scully, 66 Kan. 139, 71 P. 249.
ROLL, v. To rob. Lasecki v. State, 190 Wis. 274,
208 N.W. 868, 869. Long v. State, 141 S.W.2d 349,
350, 139 Tex.Cr.R. 536.
ROLLING. En route; on way to destination; in
transit. Sales of goods are often made "rolling"
f. o. b. a designated place. Vaccaro Bros. & Co.
v. Farris, 92 W.Va. 655, 115 S.E. 830, 831.
ROLLING STOCK. The portable or movable ap-
paratus and machinery of a railroad, particularly
such as moves on the road, viz., engines, cars,
tenders, coaches, and trucks. Great Northern Ry.
Co. v. Flathead County, 61 Mont. 263, 202 P. 198,
200; Black Diamond Coal Mining Co. v. Glover
Mach. Works, 212 Ala. 654, 103 So. 853, 854.
ROLLING STOCK PROTECTION ACT. The act
of 35 & 36 Vict. c. 50, passed to protect the rolling
stock of railways from distress or sale in certain
cases.
ROMA PEDITIE. Lat. Pilgrims that traveled to
Rome on foot.
ROMAN CATHOLIC CHARITIES ACT. The stat-
ute 23 & 24 Vict. c. 134, providing a method for
enjoying estates given upon trust for Roman Cath-
olics, but invalidated by reason of certain of the
trusts being superstitious or otherwise illegal. 3
Steph. Comm. 76.
ROMAN CATHOLIC CHURCH. The juristic per-
sonality of the Roman Catholic Church, with the
right to sue and to take and hold property has
been recognized by all systems of European law
from the fourth century. It was formally recog-
nized between Spain and the Papacy and by Span-
ish laws from the beginning of the settlements in
the Indies, also by our treaty with Spain in 1898,
whereby its property rights were solemnly safe-
guarded. Municipality of Ponce v. Roman Catho-
lic Church in Porto Rico, 28 S.Ct. 737, 210 U.S.
296, 52 L.Ed. 1068. To the same effect as to the
Philippines; Santos v. Roman Catholic Church, 29
S.Ct. 338, 212 U.S. 463, 53 L.Ed. 599.
ROMAN LAW. In a general sense, comprehends
all the laws which prevailed among the Romans,
without regard to the time of their origin, includ-
ing the collections of Justinian.
In a more restricted sense, the Germans under-
stand by this term merely the law of Justinian,
as adopted by them. Mackeld. Rom. Law, § 18.
In England and America, it appears to be cus-
tomary to use the phrase, indifferently with "the
civil law," to designate the whole system of Ro-
man jurisprudence, including the Corpus Juris
Civilis; or, if any distinction is drawn, the ex-
pression "civil law" denotes the system of juris-
prudence obtaining in those countries of con-
tinental Europe which have derived their , juridi-
cal notions and principles from the Justinian col-
lection, while "Roman law" is reserved as the
proper appellation of the body of law developed
under the government of Rome from the earliest
times to the fall of the empire.
ROME-SCOT, or ROME-PENNY. Peter-pence,
(q. v.). Cowell.
ROMNEY MARSH. A tract of land in the coun-
ty of Kent, England, containing twenty-four thou-
sand acres, governed by certain ancient and equi-
table laws of sewers, composed by Henry de Bathe,
a venerable judge in the reign of King Henry
III.; from which laws all commissioners of sew-
ers in England may receive light and direction.
3 Bl.Comm. 73, note t; 4 Inst. 276.
ROOD OF LAND. The fourth part of an acre in
square measure, or one thousand two hundred
and ten square yards.
ROOM. A space for occupancy or use inclosed
on all sides, as in building or apartment, frequent-
ly named for use to which it is put as bedroom,
dining room, toolroom. Featherstone v. Dessert,
173 Wash. 264, 22 P.2d 1050.
ROOMER. A lodger, one who rents a room or
rooms in a house. Atlantic City v. Le Beck, 125
N.J.L. 373, 15 A.2d 653, 654.
ROOT OF DESCENT. The same as "stock of de-
scent."
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ROOT OF TITLE. The document with which an
abstract of title properly commences. Sweet.
ROS. A kind of rushes, which some tenants were
obliged by their tenure to furnish their lordsw
ithal. Cowell.
ROSLAND. Healthy ground, or ground full of
ling; also watery and moorish land. 1 Inst. 5.
ROSTER. A list of persons who are to perform
certain legal duties when called upon in their
turn. In military affairs it is a table or plan by
which the duty of officers is regulated. Matthews
v. Bowman, 25 Me. 167.
ROTA. L. Lat. Succession; rotation. "Rota of
presentations;" "rota of the terms." 2 W.B1. 772,
773.
A roll or list, as of schoolboys, soldiers, jurors,
or the like. Cent. Diet.
In the Roman Catholic Church, an ecclesiasti-
cal court, called also "Rota Romana," consisting
of 12 "auditors." Webster, Dict. One of its mem-
bers must be a German, one a Frenchman, two
Spaniards, and eight Italians. Encyc. Brit. It
has its seat at the papal court, and is divided
into two colleges or senates, having jurisdiction
of appeals and of all matters beneficiary and pa-
trimonial. There is no appeal from its decisions
except to the Pope. Cent. Diet.
Also, a celebrated court at Genoa about the six-
teenth century, or before, whose decisions in mari-
time matters form the first part of Straccha de
Merc. Ingersoll's Roccus.
ROTA. Span. In Spanish law. Obliterated.
White, New Recop. b. 3, tit. 7, c. 5, § 2.
ROTHER-BEASTS. A term which includes oxen,
cows, steers, heifers, and such like horned ani-
mals. Cowell.
ROTTEN BOROUGHS. Small boroughs in Eng-
land, which prior to the reform act, 1832, re-
turned one or more members to parliament.
ROTTEN CLAUSE. A clause sometimes inserted
in policies of marine insurance to the effect that
"if, on a regular survey, the ship shall be de-
clared unseaworthy by reason of being rotten or
unsound," the insurers shall be discharged. 1
Phil. Ins. § 849. See Steinmetz v. United States
Ins. Co., 2 Serg. & R. (Pa.) 296.
ROTULUS WINTONUE. The roll of Winton. An
exact survey of all England, made by Alfred, not
unlike that of Domesday; and it was so called
because it was kept at Winchester, among other
records of the kingdom; but this roll time has
destroyed. Ingulph. Hist. 516.
ROTURE. Fr. In old French and Canadian law.
A free tenure without the privilege of nobility;
the tenure of a free commoner.
ROTURIER. Fr. In old French and Canadian
law. A free tenant of land on services exigible
either in money or in kind. Steph. Lect. 229. A
free commoner; one who held of a superior, but
could have no inferior below him.
ROUND-ROBIN. A circle divided from the cen-
ter, like Arthur's round table, whence its supposed
origin. In each compartment is a signature, so
that the entire circle, when filled, exhibits a list,
without priority being given to any name. A com-
mon form of round-robin is simply to write the
names in a circular form. Wharton.
ROUP. In Scotch law. A sale by auction. Bell.
ROUT. A rout is an unlawful assembly which
has made a motion towards the execution of the
common purpose of the persons assembled. It is,
therefore, between an unlawful assembly and a
riot. Steph. Crim. Dig. 41. Whenever two or
more persons assembled and acting together,
make any attempt or advance toward the com-
mission of an act which would be a riot if actual-
ly committed. Follis v. State, 37 Tex.Cr.R. 535,
40 S.W. 277.
ROUTE. Course, line of travel, or transit. Louisi-
ana Highway Commission v. Cormier, 13 La.App.
459, 128 So. 56, 61. A trodden or usual way.
Tuggle v. Parker, 159 Kan. 572, 156 P.2d 533, 534.
In railroad parlance, a designated course over
a way or right of way, irrespective of the single-
ness or multiplicity of operation thereon. Regen-
hardt Const. Co. v. Southern Ry. in Kentucky,
297 Ky. 840, 181 S.W.2d 441, 444.
In French insurance law. The way that is tak-
en to make the voyage insured. The direction of
the voyage assured.
ROUTOUSLY. In pleading. A technical word in
indictments, generally coupled with the word
"riotously." 2 Chit. Crim. Law, 488.
ROY. L!, Fr. The king.
ROY EST L'ORIGINAL DE TOUTS FRANCHIS-
ES. Keilw. 138. The king is the origin of all
franchises.
ROY N'EST LIE PER ASCUN STATUTE SI IL
NE SOIT EXPRESSMENT NOSME. The king is
not bound by any statute, unless expressly named.
Jenk. Cent. 307; Broom, Max. 72.
ROY POET DISPENSER OVE MALUM PROHI-
BITUM, MAIS NON MALUM PER SE. Jenk.
Cent. 307. The king can grant a dispensation for
a malum prohibitum, but not for a malum per se.
ROYAL. Of or pertaining to or proceeding from
the king or sovereign in a monarchical govern-
ment.
ROYAL ASSENT. The last form through which
a bill goes previously to becoming an act of par-
liament. It is, in the words of Lord Hale, "the
complement and perfection of a law." The royal
assent is given either by the king in person or by
royal commission by the king himself, signed
with his own hand. It is rarely given in person,
except when at the end of the session the king
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ROYAL
attends to prorogue parliament, if he should do
so. Brown.
ROYAL BURGHS. Boroughs incorporated in
Scotland by royal charter. Bell.
ROYAL COURTS OF JUSTICE. Under the stat-
ute 42 & 43 Vict. c. 78, § 28, this is the name given
to the buildings, together with all additions there-
to, erected under the courts of justice building act,
1865, (28 & 29 Vict. c. 48,) and courts of justice
concentration (site) act, 1865, (28 & 29 Vict. c. 49.)
Brown.
ROYAL FISH. See Fish.
ROYAL GRANTS. Conveyances of record in Eng-
land. They are of two kinds: (1) Letters patent;
and (2) letters close, or writs close. 1 Steph.
Comm. 615-618.
ROYAL HONORS. In the language of diplomacy,
the privilege enjoyed by every kingdom in Europe,
by the pope, and Swiss confederations, to prece-
dence over all others who do not enjoy the same
rank, with the exclusive right of sending to other
states public ministers of the first rank, as am-
bassadors, together with other distinctive titles
and ceremonies. Wheat. Int. Law, pt. 2, C. 3, § 2.
ROYAL MINES. Mines of silver and gold be-
longed to the king of England, as part of his
prerogative of coinage, to furnish him with ma-
terial. 1 Bl.Comm. 294.
ROYAL PREROGATIVE. Those rights and ca-
pacities which the king enjoys alone in contra-
distinction to others and not to those which he
enjoys in common with any of his subjects. It
is that special pre-eminence which the sovereign
has over all other persons, and out of the course
of the common law by right of regal dignity.
' Etna Casualty & Surety Co. v. Bramwell, D.C.
Or., 12 F.2d 307, 309.
ROYAL TITLES ACT, 1901. The title of the
sovereign is "By the Grace of God of the United
Kingdom of Great Britain and Ireland and of the
British Dominions beyond the Seas King, De-
fender of the Faith, Emperor of India."
ROYALTIES. Regalities; royal property.
ROYALTY. A payment reserved by the grantor
of a patent, lease of a mine, or similar right,
and payable proportionately to the use made of
the right by the grantee. Raynolds v. Hanna, C.
C.Ohio, 55 F. 800.
In mining and oil operations, a share of the
product or profit paid to the owner of the prop-
erty. Marias River Syndicate v. Big West Oil Co.,
98 Mont. 254, 38 P.2d 599, 601.
A payment which is made to an author or com-
poser by an assignee or licensee in respect of each
copy of his work which is sold, or to an inventor
in respect of each article sold under the patent.
Sweet.
ROYALTY ACRES. That part of the oil that
goes to landowner, whether it be in place or af-
ter production. Dickens v. Tisdale, 204 Ark. 83S,
164 S.W.2d 990, 992.
ROYALTY BONUS. The consideration for oil
and gas lease over and above the usual royalty
of one-eighth. Sheppard v. Stanolind Oil & Gas
Co., Tex.Civ.App., 125 S.W.2d 643, 648.
RUBRIC. The directions in the Book of Common
Prayer of the Church of England are so called,
being, in the authorized version of 1662, printed
in red letters.
RUBRIC OF A STATUTE. Its title, which was
anciently printed in red letters. It serves to show
the object of the legislature, and thence affords
the means of interpreting the body of the act;
hence the phrase, of an argument, "a rubro ad'
nigrum." Wharton.
RUDENESS. Roughness; incivility; violence.
Touching another with rudeness may constitute a
battery.
RUINA. Lat. In the civil law. Ruin, the falling
of a house. Dig. 47, 9.
RULE, v. To command or require by a rule of
court; as, to rule the sheriff to return the writ, to
rule the defendant to plead. To settle or decide
a point of law arising upon a trial at nisi pries;
and, when it is said of a judge presiding at such
a trial that he "ruled" so and so, it is meant that
he laid down, settled, or decided such and such
to be the law.
RULE, n. An established standard, guide, or
regulation; a principle or regulation set up by
authority, prescribing or directing action or for-
bearance; as, the rules of a legislative body, of
a company, court, public office, of the law, of eth-
ics. A regulation made by a court of justice or
public office with reference to the conduct of busi-
ness therein.
An order made by a court, at the instance of
one of the parties to a suit, commanding a minis-
terial officer, or the opposite party, to do some
act, or to show cause why some act should not be_
done. It is usually upon some interlocutory mat-
ter, and has not the force or solemnity of a de-
cree or judgment.
A rule of law. Thus, we speak of the rule
against perpetuities; the rule in Shelley's Case,
etc.
Cross-Rules
These were rules where each of the opposite
litigants obtained a rule nisi, as the plaintiff to
increase the damages, and the defendant to enter
a nonsuit. Wharton.
General Rules
General or standing orders of a court, in rela-
tion to practice, etc.
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RULE
Rule Absolute
One which commands the subject-matter of the
rule to be forthwith enforced. It is usual, when
the party has failed to show sufficient cause
against a rule nisi, to "make the rule absolute,"
i. e., imperative and final.
Rule Against Perpetuities
See that title.
Rule—Day
In practice. The day on which a rule is re-
turnable, or on which the act or duty enjoined
by a rule is to be performed. Cook v. Cook, 18
Fla. 637.
Rule Discharged
A term indicating that the court has refused to
take the action sought by the rule, or has decided
that the cause shown against the rule is deemed
sufficient.
Rule in Shelley's Case
See Shelley's Case, Rule in.
Rule Nisi
A rule which will become imperative and final
!unless cause be shown against it. This rule com-
mands the party to show cause why he should not
be compelled to do the act required, or why the
object of the rule should not be enforced.
Rule of 1756
A rule of international law, first practically es-
tablished in 1756, by which neutrals, in time of
war, are prohibited from carrying on with a bel-
ligerent power a trade which is not open to them
in time of peace. 1 Kent, Comm. 82.
Rule of Apportionment
Rule that, where subdivided tract contains
more or less than aggregate amount called for,
excess or deficiency is apportioned among several
tracts. Geiger v. Uhl, 204 Ind. 135, 180 N.E. 10, 12.
Rules of Course
Rules of course are rules which courts author-
ize their officers to grant without formal appli-
cation to a judge. Such rules were technically
termed in English practice, "side bar rules", be-
cause formerly they were moved for by the attor-
neys at the side bar in court. Brown.
Rules of Court
The rules for regulating the practice of the
different courts, which the judges are empowered
to frame and put in force as occasion may re-
quire. Brown; Goodlett v. Charles, 14 Rich. Law
(S. C.) 49.
Rule of Four
The Supreme Court's practice of granting cer-
tiorari on vote of four Justices. Rogers v. Mis-
souri Pac. R. Co., Ill., Mo., N.Y., Ohio, 77 S.Ct. 459,
478, 357 U.S. 521, 1 L.Ed.2d 515.
Rule of Kent
Where realty is given by will absolutely to one
person, with gift over to another of such portion
as may remain undisposed of by first taker at
his death, gift over is void, as repugnant to abso-
lute property first given. Andrews v. Andrews,
116 S.E.2d 436, 440, 253 N.C. 139.
Rule of Law
A legal principle, of general application, sanc-
tioned by the recognition of authorities, and us-
ually expressed in the form of a maxim or logi-
cal proposition. Called a "rule," because in doubt-
ful or unforeseen cases it is a guide or norm for
their decision. Toullier, tit. prel. no. 17.
Rule of Lenity
Where the intention of Congress is not clear
from the act itself and reasonable minds might
differ as to its intention, the court will adopt the
less harsh meaning. U. S. v. Callanan, D.C.Mo.,
173 F.Supp. 98, 100.
Rules of Practice
Certain orders made by the courts for the pur-
pose of regulating the practice in actions and oth-
er proceedings before them.
Rule of Presumption
Rule changes one of burdens of proof, that is,
it declares that main fact will be inferred or as-
sumed from some other fact until evidence to
contrary is introduced. Barrett v. U. S., C.A.Ga.,
322 F.2d 292, 294.
Rules of Procedure
Rules made by a legislative body concerning
the mode and manner of conducting its business.
Heiskell v. Baltimore, 65 Md. 125, 4 A. 116, 57 Am.
Rep. 308.
Rule of Property
A settled rule or principle, resting usually on
precedents or a course of decisions, regulating
the ownership or devolution of property. Yazoo
& M. V. R. Co. v. Adams, 81 Miss. 90, 32 So. 937.
Rule of the Road
The popular English name for the regulations
governing the navigation of vessels in public
waters, with a view to preventing collisions.
Sweet.
Rule to Plead
A rule of court, taken by a plaintiff as of course,
requiring the defendant to plead within a given
time, on pain of having judgment taken against
him by default.
Rule to Show Cause
A rule commanding the party to appear and
show cause why he should not be compelled to
do the act required, or why the object of the
rule should not be enforced; a rule nisi, (q. v.).
Special Rule
Rules granted without any motion in court,
or when the motion is only assumed to have been
made, and is not actually made, are called "com-
mon" rules; while the rules granted upon motion
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RULE
actually made to the court in term, or upon a
judge's order in vacation, are termed "special"
rules. Brown. The term may also be understood
as opposed to "general" rule; in which case it
means a particular direction, in a matter of prac-
tice, made for the purposes of a particular case.
RULE AGAINST PERPETUITIES. Principle that
no interest in property is good unless it must vest,
if at all, not later than 21 years, plus period of
gestation, after some life or lives in being at time
of creation of interest. Perkins v. Iglehart, 183
Md. 520, 39 A.2d 672, 676. Bliven v. Borden, 56
R.I. 283, 185 A. 239, 244. St. Louis Union Trust
Co. v. Bassett, 85 S.W.2d 569, 575, 337 Mo. 604,
101 A.L.R. 1266.
Some states modified this common law prin-
ciple by statute.
See, also, Perpetuity.
RULES. In American practice. This term is
sometimes used, by metonymy, to denote a time
or season in the judicial year when motions may
be made and rules taken, as special terms or argu-
ment-days, or even the vacations, as distinguished
from the regular terms of the courts for the trial
of causes; and, by a further extension of its
meaning, it may denote proceedings in an action
taken out of court. Thus, "an irregularity com-
mitted at rules may be corrected at the next term
of the court." Southall's Adm'r v. Exchange
Bank, 12 Grat. (Va.) 312.
RULES OF A PRISON. Certain limits without
the walls, within which all prisoners in custody
in civil actions were allowed to live, upon giving
sufficient security to the marshal not to escape.
RULES OF THE KING'S BENCH PRISON. In
English practice. Certain limits beyond the walls
of the prison, within which all prisoners in cus-
tody in civil actions were allowed to live, upon
giving security by bond, with two sufficient sure-
ties, to the marshal, not to escape, and paying him
a certain percentage on the amount of the debts
for which they were detained. Holthouse.
RUMOR. Flying or popular report; a current
story passing from one person to another without
any known authority for the truth of it. Webster.
It is not generally admissible in evidence. Smith
v. Moore, 74 Vt. 81, 52 A. 320; Gaffney v. Royal
Neighbors of America, 31 Idaho 549, 174 P. 1014,
1017; State v. Vettere, 76 Mont. 574, 248 P. 179,
183.
RUN, v. To have currency or legal validity in
a prescribed territory; as, the writ runs through-
out the county.
To have applicability or legal effect during a
prescribed period of time; as, the statute of limi-
tations has run against the claim.
To follow or accompany; to be attached to an-
other thing in pursuing a prescribed course or
direction; as, the covenant runs with the land.
To conduct, manage, carry on. State v. Ka-
muda, 98 Vt. 466, 129 A. 306, 308.
RUN, n. In American law. A watercourse of
small size. Webb v. Bedford, 2 Bibb (Ky.) 354.
RUNCARIA. In old records. Land full of bram-
bles and briars. 1 Inst. 5a.
RUNCINUS. In old English law. A load-horse;
a sumpter-horse or cart-horse.
RUNDLET, or RUNLET. A measure of wine,
oil, etc., containing eighteen gallons and a half.
Cowell.
RUNNING ACCOUNT. An open unsettled ac-
count, as distinguished from a stated and liquidat-
ed account. "Running accounts" mean mutual ac-
counts and reciprocal demands between the par-
ties, which accounts and demands remain open
and unsettled. Brackenridge v. Baltzell, 1 Ind.
335; Badger Lumber Co. v. W. F. Lyons Ice &
Power Co., 174 Mo.App. 414, 160 S.W. 49, 52; Hol-
lingsworth v. Allen, 176 N.C. 629, 97 S.E. 625.
RUNNING A SWITCH. In railroad parlance,
going through a switch not properly aligned for
the movement made. Benton v. St. Louis-San
Francisco R. Co., Mo., 182 S.W.2d 61, 63.
RUNNING AT LARGE. This term is applied to
wandering or straying animals. Dixon v. Lewis,
94 Conn. 548, 109 A. 809, 810; Uebele v. State, 21
Ohio App. 459, 153 N.E. 215, 216; Finley v. Barker,
219 Mich. 442, 189 N.W. 197, 200.
RUNNING DAYS. Days counted in their regular
succession on the calendar, including Sundays and
holidays. Brown v. Johnson, 10 Mees. & W. 334;
Crowell v. Barreda, 16 Gray (Mass.) 472; Davis
v. Pendergast, 7 F.Cas. 162.
RUNNING LEASE. In old books. A lease which
provided that the tenancy should not be confined
to any portion of the land granted, and allowed
the tenant the use of all the land he could clear,
to distinguish it from one confined to a particular
division, circumscribed by metes and bounds,
within a larger tract. Cowan v. Hatcher, Tenn.Ch.
App., 59 S.W. 691.
RUNNING LOOSE. As applied to an engine.
Running forward without cars attached to it.
Testerman v. Hines, 88 W.Va. 547, 107 S.E. 201.
RUNNING OF THE STATUTE OF LIMITA-
TIONS. A metaphorical expression, by which is
meant that the time mentioned in the statute of
limitations is considered as passing. United States
v. Markowitz, D.C.Cal., 34 F.Supp. 827, 829.
RUNNING POLICY. One which contemplates
successive insurances, and which provides that the
object of the policy may be from time to time de-
fined, especially as to the subjects of insurance,
by additional statements or indorsements. Corpo-
ration of London Assurance v. Paterson, 106 Ga.
538, 32 S.E. 650.
RUNNING WITH THE LAND. A covenant is
said to run with the land when either the liability
to perform it or the right to take advantage of it
passes to the assignee of that land. Brown.
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RYOT-TENURE
RUNNING WITH THE REVERSION. A cove-
nant is said to run with the reversion when either
the liability to perform it or the right to take
advantage of it passes to the assignee of that re-
version. Brown.
RUNRIG LANDS. Lands in Scotland where the
ridges of a field belong alternatively to different
proprietors. Anciently this kind of possession
was advantageous in giving a united interest to
tenants to resist inroads. By the act of 1695, c.
23, a division of these lands was authorized, with
the exception of lands belonging to corporations.
Wharton.
RUPEE. A silver coin of India, rated at 2s. for
the current, and 2s. 3d. for the Bombay, rupee.
RUPTUINI. Lat. In the civil law. Broken. A
term applied to a will. Inst. 2, 17, 3.
RURAL DEANERY. The circuit of an archdea-
con's and rural dean's jurisdictions. Every rural
deanery is divided into parishes. See 1 Steph.
Comm. 117.
RURAL DEANS. In English ecclesiastical law.
Very ancient officers of the church, almost grown
out of use, until about the middle of the present
century, about which time they were generally re-
vived, whose deaneries are as an ecclesiastical di-
vision of the diocese or archdeaconry. They are
deputies of the bishop, planted all round his dio-
cese, to inspect the conduct of the parochial clergy,
to inquire into and report dilapidations, and to
examine candidates for confirmation, armed in
minuter matters with an inferior degree of judicial
and coercive authority. Wharton.
RURAL SERVITUDE. In the civil law. A servi-
tude annexed to a rural estate, ( prcedium rustic-
um.)
RUSE DE GUERRE. Fr. A trick in war; a
stratagem.
RUSTICI. Lat. In feudal law. Natives of a
conquered country.
In old English law. Inferior country tenants,
churls, or chorls, who held cottages and lands by
the services of plowing, and other labors of agri-
culture, for the 19rd. Cowell.
RUSTICUM FORUM. Lat. A rude, unlearned, or
unlettered tribunal; a term sometimes applied to
arbitrators selected by the parties to settle a
dispute. Underhill v. Van Cortlandt, 2 Johns.Ch.
(N.Y.) 339; Dickinson v. Chesapeake & 0. R. Co.,
7 W.Va. 429.
RUSTICUM JUDICIUM. Lat. In maritime law.
A rough or rude judgment or decision. A judg-
ment in admiralty dividing the damages caused by
a collision between the two ships. 3 Kent, Comm.
231; Story, Bailm. § 608a. The Victory, C.C.A.
Va., 68 F. 400, 15 C.C.A. 490.
RUSTLER. Cattle thief. Galeppi v. C. Swanston
and Son, 107 Cal.App. 30, 290 P. 116, 119.
RUTA. Lat. In the civil law. Things extracted
from land; as sand, chalk, coal, and such other
matters.
RUTA ET CJESA. In the civil law. Things dug,
(as sand and lime,) and things cut, (as wood, coal,
etc.) Dig. 19, 1, 17, 6. Words used in convey-
ancing.
RYOT. In India. A peasant, subject, or tenant
of house or land. Wharton.
RYOT-TENURE. A system of land-tenure, where
the government takes the place of landowners
and collects the rent by means of tax gatherers.
The farming is done by poor peasants, (ryots),
who find the capital, so far as there is any, and
also do the work. The system exists in Turkey,
Egypt, Persia, and other Eastern countries, and
in a modified form in British India. After slav-
ery, it is accounted the worst of all systems, be-
cause the government can fix the rent at what it
pleases, and it is difficult to distinguish between
rent and taxes.
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S
S
S. As an abbreviation, this letter stands for "sec-
tion," "statute," and various other words of which
it is the initial.
S. B. An abbreviation for "senate bill."
S. B. A. Small Business Administration.
S. C. An abbreviation for "same case." Inserted
between two citations, it indicates that the same
case is reported in both places. It is also an ab-
breviation for "supreme court," and for "select
cases;" also for "South Carolina."
S. D. An abbreviation for "southern district."
S/D B/L. The abbreviation "S/D B/L" in a con-
tract of sale means sight draft—bill of lading
attached. Attalla Oil & Fertilizer Co. v. Goddard,
207 Ala. 287, 92 So. 794, 796.
S. E. C. Securities and Exchange Commission.
S. F. S. An abbreviation in the civil law for "sine
fraude sua," (without fraud on his part.) Calvin.
S. L. An abbreviation for "session [or statute]
laws."
S. P. An abbreviation of "sine prole," without
issue. Also an abbreviation of "same principle,"
or "same point," indicating, when inserted be-
tween two citations, that the second involves the
same doctrine as the first.
S. S. A collar formerly worn on state occasions
by the Lord Chief Justice of England, and of the
Common Pleas and the Lord Chief Baron—now
only by the first named of these (q. v.).
S. S. A. Social Security Administration.
S. S. S. Selective Service System.
S. V. An abbreviation for "sub voce," under the
word; used in references to dictionaries, and oth-
er works arranged alphabetically.
These letters also stand for "sub- verbo," which has the
same meaning as sub voce.
SABBATH. One of the names of the first day of
the week; more properly called "Sunday," (q. v.).
Gunn v. State, 89 Ga. 341, 15 S.E. 458; State v.
Reade, 98 N.J.L. 596, 121 A. 288.
SABBATH-BREAKING. The offense of violat-
ing the laws prescribed for the observance of Sun-
day. State v. Baltimore & 0. R. Co., 15 W.Va.
381, 36 Am.Rep. 803; State v. Popp, 45 Md. 433.
SABBATUM. L. Lat. The Sabbath; also peace.
Domesday.
SABBULONARIUM. A gravel pit, or liberty to
dig gravel and sand; money paid for the same.
Cowell.
SABINIANS. A school or sect of Roman jurists,
under the early empire, founded by Ateius Capito,
who was succeeded by M. Sabinus, from whom
the name.
SABLE. The heraldic term for black. It is call-
ed "Saturn," by those who blazon by planets, and
"diamond," by those who use the names of jewels.
Engravers commonly represent it by numerous
perpendicular and horizontal lines, crossing each
other. Wharton.
SABOTAGE. A method used by labor revolu-
tionists to force employers to accede to demands
made on them. It consists in a willful obstruc-
tion and interference with the normal processes
of industry. It aims at inconveniencing and ty-
ing up all production, but stops short of actual
destruction or of endangering human life directly.
The original act of sabotage is said to have been
the slipping of a wooden shoe, or sabot, of a work-
man into a loom, in the early days of the intro-
duction of machinery, to impede production.
State v. Moilen, 140 Minn. 112, 167 N.W. 345, 347,
1 A.L.R. 331; State v. Tonn, 195 Iowa, 94, 191
N.W. 530, 538.
SABURRA. L. Lat. In old maritime law. Bal-
last.
SAC. In old English law. A liberty of holding
pleas; the jurisdiction of a manor court; the priv-
ilege claimed by a lord of trying actions of tres-
pass between his tenants, in his manor court, and
imposing fines and amerciaments in the same.
SACABURTH, SACABERE, SACABERE. In old
English law. He that is robbed, or by theft de-
prived of his money or goods, and puts in surety
to prosecute the felon with fresh suit. Bract. fol.
154b.
SACCABOR. In old English law. The person
from whom a thing had been stolen, and by whom
the thief was freshly pursued. Bract. fol. 154b.
See Sacaburth.
SACCULARIL Lat. In Roman law. Cut-purses.
4 Steph.Comm. 125.
SACCUS. L. Lat. In old English law. A sack.
A quantity of wool weighing thirty or twenty-eight
stone. Fleta, 1. 2, c. 79, § 10.
SACCUS CUM BROCHIA. L. Lat. In old Eng-
lish law. A service or tenure of finding a sack
and a broach (pitcher) to the sovereign for the
use of the army. Bract. 1. 2, c. 16.
SACQUIER. In maritime law. The name of an
ancient officer, whose business was to load and
unload vessels laden with salt, corn, or fish, to
prevent the ship's crew defrauding the merchant
by false tale, or cheating him of his merchandise
otherwise. Laws Oleron, art. 11; 1 Pet.Adm.
Append. 25.
SACRA. Lat. In Roman law. The right to par-
ticipate in the sacred rites of the city. Butl.Hor.
Jur. 27.
SACRAMENTALES. L. Lat. In feudal law.
Compurgators; persons who came to purge a de-
fendant by their oath that they believed him in-
nocent.
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SACRAMENTI ACTIO. Lat. In the older prac-
tice of the Roman law, this was one of the forms
of legis actio, consisting in the deposit of a stake
or juridical wager. See Sacramentum,
SACRAMENTUM. Lat.
Roman Law
An oath, as being a very sacred thing; more
particularly, the oath taken by soldiers to be true
to their general and their country. Ainsw. Lex.
In one of the formal methods of beginning an
action at law (legis actiones) known to the early
Roman jurisprudence, the sacramentum was a
sum of money deposited in court by each of the
litigating parties, as a kind of wager or forfeit,
to abide the result of the suit. The successful
party received back his stake; the losing party
forfeited his, and it was paid into the public treas-
ury, to be expended for sacred objects, (in sacris
rebus,) whence the name. See Mackeld. Rom.
Law, § 203.
Common Law
An oath. Cowell.
SACRAMENTUM DECISIONIS. The voluntary
or decisive oath of the civil law, where one of the
parties to a suit, not being able to prove his case,
offers to refer the decision of the cause to the
oath of his adversary, who is bound to accept or
make the same offer on his part, or the whole is
considered as confessed by him. 3 Bl.Comm. 342.
SACRAMENTUM FIDELITATIS. In old English
law. The oath of fealty. Reg. Orig. 303.
SACRAMENTUM HABET IN SE TRES COM-
ITES,—VERITATEM, JUSTITIAM, ET JUDICI-
UM; VERITAS HABENDA EST IN JURATO;
JUSTITIA ET JUSTICIUM IN JUDICE. An oath
has in it three component parts,—truth, justice,
and judgment; truth in the party swearing; jus-
tice and judgment in the judge administering the
oath. 3 Inst. 160.
SACRAMENTUM SI FATUUM FUERIT, LICET
FALSUM, TAMEN NON COMMITTIT PERJURI-
UM. 2 Inst. 167. A foolish oath, though false,
makes not perjury.
SACRILEGE. In English criminal law. Lar-
ceny from a church. 4 Steph.Comm. 164. The
crime of breaking a church or chapel, and steal-
ing therein. 1 Russ. Crimes, 843.
In old English law. The desecration of any-
thing considered holy; the alienation to lay-men
or to profane or common purposes of what was
given to religious persons and to -pious uses.
Cowell.
SACRILEGIUM. Lat. In the civil law. The
stealing of sacred things, or things dedicated to
sacred uses; the taking of things out of a holy
place. Calvin.
SACRILEGUS. Lat. In the civil and common
law. A sacrilegious person; one guilty of sacri-
lege.
SACRILEGUS OMNIUM PRZEDONUM CUPIDI-
TATEM ET SCELERA SUPERAT. 4 Coke, 106.
A sacrilegious person transcends the cupidity and
wickedness of all other robbers.
SACRISTAN. A sexton, anciently called "sager-
son," or "sagiston;" the keeper of things belong-
ing to divine worship.
SADBERGE. A denomination of part of the
county palatine of Durham. Wharton.
SADISM. That state of sexual perversion in man
in which the sexual inclination manifests itself
by the desire to beat, to maltreat, humiliate and
even to kill the person for whom the passion is
conceived. 3 Witth. & Beck, Med.Jur. 739.
The opposite of masochism (q. v.).
&EMEND. In old English law. An umpire, or
arbitrator.
SIEPE CONSTITUTUM EST, RES INTER ALIOS
JUDICATAS ALIIS NON PRZEJUDICARE. It
has often been settled that matters adjudged be-
tween others ought not to prejudice those who
were not parties. Dig. 42, 1, 63.
SIEPE VIATOREM NOVA, NON VETUS, OR-
BITA FALLIT. 4 Inst. 34. A new road, not an
old one, often deceives the traveler.
S2EPENUMERO UBI PROPRIETAS VERBORUM
ATTENDITUR, SENSUS VERITATIS AMITTI-
TUR. Oftentimes where the propriety of words
is attended to, the true seise is lost. Branch,
Princ.; 7 Coke, 27.
S)EVITIA. Lat. In the law of divorce. Cruelty;
anything which tends to bodily harm, and in that
manner renders cohabitation unsafe. 1 Hagg.
Const. 458.
SAFE. A metal receptacle for the preservation
of valuables.
SAFE-CONDUCT. A guaranty or security grant-
ed by the king under the great seal to a stranger,
for his safe coming into and passing out of the
kingdom. Cowell.
One of the papers usually carried by vessels in
time of war, and necessary to the safety of neu-
tral merchantmen. It is in the nature of a license
to the vessel to proceed on a designated voyage,
and commonly contains the name of the master,
the name, description, and nationality of the ship,
the voyage intended, and other matters.
A distinction is sometimes made between a passport,
conferring a general permission to travel in the territory
belonging to, or occupied by, the belligerent, and a safe-
conduct, conferring permission upon an enemy subject or
others to proceed to a particular place for a defined object.
II Opp. § 218.
SAFE DEPOSIT COMPANY. A company which
maintains vaults for the deposit and safe-keeping
of valuables in which compartments or boxes
are rented to customers who have exclusive ac-
cess thereto, subject to the oversight and under
the rules and regulations of the company.
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SAFE LIMIT OF SPEED. As regards limitation
on speed of automobiles at crossings, the limit at
which one may discern the approaching train and
stop before he is in the danger zone. Horton v.
New York Cent. R. Co., 200 N.Y.S. 365, 366, 205
App.Div. 763.
SAFE LOADING PLACE. A place where a ves-
sel can be rendered safe for loading by reasonable
measures of precaution. 14 Q.B.D. 105; 54 L.J.
Q.B. 121.
SAFE PLACE TO WORK. In the law of master
and servant, a place in which the master has elim-
inated all danger which the exercise of reason-
able care by the master would remove or guard
against. Melody v. Des Moines Union Ry. Co.,
161 Iowa, 695, 141 N.W. 438, 439; Buick v. Olds
Motor Works, 175 Mich. 640, 141 N.W. 680, 683,
49 L.R.A.,N.S., 883.
Master's duty to provide a "safe place" to work includes
places to and from which the employee might be required
or expected to go. High Splint Coal Co. v. Ramey's Adm'x,
271 Ky. 532, 112 S.W.2d 1007, 1008.
The rule of furnishing of a "safe place to work" is gen-
erally applicable in cases of master and servant or in cases
where work is being done on property, vessel, or other-
wise, of owner. The Ellenor, D.C.Fla., 39 F.Supp. 576, 580.
SAFE-PLEDGE. A surety given that a man
shall appear upon a certain day. Bract. 1. 4, c. 1.
SAFEGUARD. In old English law. A special
privilege or license, in the form of a writ, under
the great seal, granted to strangers seeking their
right by course of law within the king's dominions,
and apprehending violence or injury to their per-
sons or property from others. Reg. Orig. 26.
A notification by a belligerent commander that
buildings or other property upon which the noti-
fication is posted up are exempt from interference
on the part of his troops. Holland, Laws and
Customs of War 44.
The term is likewise used to describe a guard
of soldiers who are detailed to accompany enemy
subjects or to protect certain enemy property. II
Opp. § 219.
SAFETY APPLIANCE ACT. The act of Con-
gress of March 2, 1893 (45 U.S.C.A. §§ 1-7), pro-
vides that after January 1, 1898, it shall be unlaw-
ful for common carriers in interstate commerce
by railroad to use locomotive engines not equip-
ped with power driving-wheel brakes and appli-
ances for operating the train brake system, or to
run a train that has not a sufficient number of
cars in it so equipped that the engineer on the
locomotive can control its speed without requir-
ing hand brakes; and to haul or use on its line
any car in interstate traffic "not equipped with
couplers coupling automatically by impact, and
which can be uncoupled without the necessity of
men going between the ends of the cars."
SAFETY ISLAND. A cement sidewalk raised
above the street level for the use and protection
of pedestrians. Strappelli v. City of Chicago, 371
Ill. 72, 20 N.E.2d 43, 44.
SAGAMAN. A tale-teller; a secret accuser.
SAGES DE LA LEY. L. Fr. Sages of the law;
persons learned in the law. A term applied to
the chancellor and justices of the king's bench.
SAGIBARO. In old European law. A judge or
justice; literally, a man of causes, or having
charge or supervision of causes. One who admin-
istered justice and decided causes in the mallum,
or public assembly. Spelman.
SAID. Before mentioned. This word is constant-
ly used in contracts, pleadings, and other legal
papers, with the same force as "aforesaid." Mur-
ry v. State, 150 Ark. 461, 234 S.W. 485, 486; Gree-
ley Nat. Bank v. Wolf, C.C.A.Colo., 4 F.2d 67, 69.
SAIGA. In old European law. A German coin
of the value of a penny, or of three pence.
SAIL. In insurance law. To put to sea; to begin
a voyage. To get ship under way in complete
readiness for voyage, with purpose of proceeding
without further delay. Northland Na y . Co. v.
American Merchant Marine Ins. Co. of New York,
212 N.Y.S. 541, 544, 214 App.Div. 571. The least
locomotion, with readiness of equipment and clear-
ance, satisfies a warranty to sail. Pittegrew v.
Pringle, 3 Barn. & Adol. 514.
Vessel "sails" when she has intended cargo on board and
is in complete readiness for voyage with stores and crew
aboard. Archibald McNeil & Sons Co., of New York, v.
Western Maryland Ry. Co., D.C.Pa., 42 F.2d 669, 677.
SAILING. When a vessel quits her moorings, in
complete readiness for sea, and it is the actual
and real intention of the master to proceed on
the voyage, and she is afterwards stopped by head
winds and comes to anchor, still intending to pro-
ceed as soon as wind and weather will permit,
this is a sailing on the voyage within the terms of
a policy of insurance. Bowen v. Hope Ins. Co.,
20 Pick. (Mass.) 278, 32 Am.Dec. 213.
SAILING INSTRUCTIONS. Written or printed
directions, delivered by the commanding officer
of a convoy to the several masters of the ships
under his care, by which they are enabled to un-
derstand and answer his signals, to know the
place of rendezvous appointed for the fleet in case
of dispersion by storm, by an enemy, or other-
wise. Without sailing instructions no vessel can
have the protection and benefit of convoy. Marsh.
Ins. 368.
SAILORS. Seamen; mariners.
SAINT MARTIN LE GRAND, COURT OF. An
ancient court in London, of local importance, for-
merly held in the church from which it took its
name.
SAINT SIMONISM. An elaborate form of non-
communistic socialism. It is a scheme which does
not contemplate an equal, but an unequal, divi-
sion of the produce. It does not propose that all
should be occupied alike, but differently, accord-
ing to their vocation or capacity; the function
of each being assigned, like grades in a regiment,
by the choice of the directing authority, and the
remuneration being by salary, proportioned to the
importance, in the eyes of that authority, of the
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function itself, and the merits of the person who
fulfills it. 1 Mill.PorEcon. 258.
SAIO. In Gothic law. The ministerial officer of
a court or magistrate, who brought parties into
court and executed the orders of his superior.
Spelman.
SAISIE. Fr. In French law. A judicial seizure
or sequestration of property, of which there are
several varieties. See infra.
SAISIE-ARRET. An attachment of property in
the possession of a third person.
SAISIE-EXECUTION. A writ resembling that
of fieri facias; defined as that species of execution
by which a creditor places under the hand of jus-
tice (custody of the law) his debtor's movable
property liable to seizure, in order to have it sold,
so that he may obtain payment of his debt out of
the proceeds. Dalloz, Diet.
SAISIE-FORAINE. A permission given by the
proper judicial officer to authorize a creditor to
seize the property of his debtor in the district
which the former inhabits. Dalloz, Diet. It has
the effect of an attachment of property, which is
applied to the payment of the debt due.
SAISIE-GAGERIE. A conservatory act of execu-
tion, by which the owner or principal lessor of a
house or farm causes the furniture of the house
or farm leased, and on which he has a lien, to be
seized; similar to the distress of the common law.
Dalloz, Dict.
SAISIE-IMMOBILILRE. The proceeding by
which a creditor places under the hand of justice
(custody of the law) the immovable property of
his debtor, in order that the same may be sold,
and that he may obtain payment of his debt out
of the proceeds. Dalloz, Diet.
SAKE. In old English law. A lord's right of
amercing his tenants in his court. Keilw. 145.
Acquittance of suit at county courts and hun-
dred courts. Fleta, 1. 1, c. 47, § 7.
SALABLE. "Merchantable," fit for sale in usual
course of trade, at usual selling prices. Foote v.
Wilson, 104 Kan. 191, 178 P. 430; Stevens Tank &
Tower Co. v. Berlin Mills Co., 112 Me. 336, 92 A.
180, 181.
SALABLE VALUE. Usual selling price at place
where property is situated when its value is to
be ascertained. Fort Worth & D. N. Ry. Co. v.
Sugg, Tex.Civ.App., 68 S.W.2d 570, 572.
SALADINE TENTH. A tax imposed in England
and France, in 1188, by Pope Innocent III., to
raise a fund for the crusade undertaken by Rich-
ard I. of England and Philip Augustus of France,
against Saladin, sultan of Egypt, then going to
besiege Jerusalem. By this tax every person who
did not enter himself a crusader was obliged to
pay a tenth of his yearly revenue and of the value
of all his movables, except his wearing apparel,
books, and arms. The Carthusians, Bernardines,
and some other religious persons were exempt.
Gibbon remarks that when the necessity for this
tax no longer existed, the church still clung to it
as too lucrative to be abandoned, and thus arose
the tithing of ecclesiastical benefices for the pope
or other sovereigns. Enc.Lond.
SALARIUM. Lat. In the civil law. An allow-
ance of provisions. A stipend, wages, or compen-
sation for services. An annual allowance or com-
pensation. Calvin.
SALARY. A reward or recompense for services
performed.
In a more limited sense a fixed periodical com-
pensation paid for services rendered; a stated
compensation, amounting to so much by the year,
month, or other fixed period, to be paid to public
officers and persons in some private employments,
for the performance of official duties or the ren-
dering of services of a particular kind, more or
less definitely described, involving professional
knowledge or skill, or at least employment above
the grade of menial or mechanical labor. State
v. Speed, 183 Mo. 186, 81 S.W. 1260. A fixed, an-
nual, periodical amount payable for services and
depending upon the time of employment and not
the amount of services rendered. In re Informa-
tion to Discipline Certain Attorneys of Sanitary
Dist. of Chicago, 351 Ill. 206, 184 N.E. 332, 359.
It is synonymous with "wages," except that "sal-
ary" is sometimes understood to relate to com-
pensation for official or other services, as distin-
guished from "wages," which is the compensation
for labor. Walsh v. City of Bridgeport, 88 Conn.
528, 91 A. 969, 972, Ann.Cas.1917B, 318. See, also,
Fee.
For "Executive Salaries," see that title.
SALE. A contract between two parties, called,
respectively, the "seller" (or vendor) and the
"buyer," (or purchaser,) by which the former, in
consideration of the payment or promise of pay-
ment of a certain price in money, transfers to the
latter the title and the possession of property.
Pard. Droit Commer. § 6; 2 Kent, Comm. 363;
Poth. Cont. Sale, § 1; Butler v. Thomson, 92 U.S.
414, 23 L.Ed. 684. In re Frank's Estate, 277 N.Y.
S. 573, 154 Misc. 472.
A contract whereby property is transferred
from one person to another for a consideration of
value, implying the passing of the general and
absolute title, as distinguished from a special
interest falling short of complete ownership. Ar-
nold v. North American Chemical Co., 232 Mass.
196, 122 N.E. 283, 284; Faulkner v. Town of South
Boston, 141 Va. 517, 127 S.E. 380, 381.
An agreement by which one gives a thing for
a price in current money, and the other gives
the price in order to have the thing itself. Three-
circumstances concur to the perfection of the con-
tract, to-wit, the thing sold, the price, and the
consent. Civ.Code La. art. 2439.
To constitute a "sale," there must be parties standing
to each other in the relation of buyer and seller, their
minds must assent to the same proposition, and a consider.
ation must pass. Commissioner of Internal Revenue v.
Freihofer, C.C.A.3, 102 F.2d 787, 789, 790, 125 A.L.R. 761.
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"Sale" consists of two separate and distinct elements :
First, contract of sale which is completed when offer is
made and accepted and, second, delivery of property which
may precede, be accompanied by, or follow, payment of
price as may have been agreed on between parties. Inland
Refining Co. v. Langworthy, 112 Okl. 280, 240 P. 627, 629.
An essential element of a "sale" is the money price
which must either be fixed by agreement or capable oT
being ascertained therefrom. Puryear-Meyer Grocer Co.
v. Cardwell Bank, Mo.App., 4 S.W.2d 489, 490.
"Sale," as applied to relation between landowner
and real estate broker working to secure purchas-
er of land, means procuring purchaser able, ready
and willing to buy on terms fixed by seller. T. W.
Sandford & Co. v. Waring, 201 Ky. 169, 256 S.W. 9,
10.
Synonyms
The contract of "sale" is distinguished from
"barter" (which applies only to goods) and "ex-
change," (which is used of both land and goods,)
in that both the latter terms denote a commuta-
tion of property for property; i. e., the price or
consideration is always paid in money if the trans-
action is a sale, but, if it is a barter or exchange,
it is paid in specific property susceptible of valu-
ation. Westfall v. Ellis, 141 Minn. 377, 170 N.W.
339, 341; J. I. Case Threshing Mach. Co. v. Loom-
is, 31 N.D. 27, 153 N.W. 479, 481. "Sale" differs
from "gift" in that the latter transaction involves
no return or recompense for the thing transfer-
red. But an onerous gift sometimes approaches
the nature of a sale, at least where the charge it
imposes is a payment of money. "Sale" is also
to be discriminated from "bailment;" and the dif-
ference is to be found in the fact that the contract
of bailment always contemplates the return to
the bailor of the specific article delivered, either
in its original form or in a modified or altered
form, or the return of an article which, though
not identical, is of the same class, and is equiv-
alent. But sale never involves the return of the
article itself, but only a consideration in money.
This contract differs also from "accord and satis-
faction;" because in the latter the object of trans-
ferring the property is to compromise and settle a
claim, while the object of a sale is the price given.
The cardinal difference between the relation of
seller and buyer and that of principal and factor
is that in a "sale" title passes to the buyer, while
in a "consignment" by principal to factor title
remains in principal, and only possession passes
to factor. McGaw v. Hanway, 120 Md. 197, 87 A.
666, 667, Ann.Cas.1915A, 601, and a "sale" is dis-
tinguished from a mortgage, in that the former is
a transfer of the absolute property in the goods
for a price, whereas a mortgage is at most a con-
ditional sale of property as security for the pay-
ment of a debt or performance of some other ob-
ligation, subject to the condition that on perform-
ance title shall revest in the mortgagor. Waldrep
v. Exchange State Bank of Keifer, 81 Okl. 162, 197
P. 509, 511, 14 A.L.R. 747.
An abandonment must be made without any
desire that any other person shall acquire the
thing abandoned, since if it is made for a consid-
eration it is a "sale" or "barter," and if made
without consideration, but with an intention that
some other person shall become the possessor, it
is a "gift." Del Giorgio v. Powers, 81 P.2d 1006,
1014, 27 Cal.App.2d 668.
General
Absolute and conditional sales. An absolute
sale is one where the property in chattels passes
to the buyer upon the completion of the bargain.
Truax v. Parvis, 7 Houst. (Del.) 330, 32 A. 227.
A conditional sale is one in which the transfer of
title is made to depend on the performance of a
condition, usually the payment of the price; it is
a purchase for a price paid or to be paid, to be-
come absolute on a particular event, or a purchase
accompanied by an agreement to resell upon par-
ticular terms. Poindexter v. McCannon, 16 N.C.
373, 18 Am.Dec. 591; Crimp v. McCormick Const.
Co., Ill., 18 C.C.A. 595, 72 F. 366.
Conditional sales are distinguishable from mortgages in
that a mortgage assumes the continued existence of a
debt and is given as security therefor. Turner v. Kerr, 44
Mo. 429; Crane v. Bonnell, 2 N.J.Eq. 264; Weathersly v.
Weathersly, 40 Miss. 462, 90 Am.Dec. 344; Lamborn v.
Denison State Bank, 115 Kan. 415, 223 P. 293, 294.
Bill of sale. See Bill.
Cash sale. A transaction whereby payment is
to be in full on receipt of the goods. Bernzweig
v. Hyman Levin Co., Sup., 172 N.Y.S. 437, 438. A
sale where title is not to pass until the price is
paid, or where title has passed, but possession is
not to be delivered until payment is made. E. L.
Welch Co. v. Lahart Elevator Co., 122 Minn. 432,
142 N.W. 828, 830.
Exclusive sale. With respect to a broker. An
agreement by the owner that he will not sell the
property during the life of the contract to any
purchaser not procured by the broker in question.
Harris v. McPherson, 97 Conn. 164, 115 A. 723, 724,
24 A.L.R. 1530, but see contra Roberts v. Har-
rington, 168 Wis. 217, 169 N.W. 603, 10 A.L.R. 810.
Executed and executory sales. An executed
sale is one which is final and complete in all its
particulars and details, nothing remaining to be
done by either party to effect an absolute transfer
of the subject-matter of the sale. Fogel v. Bru-
baker, 15 A. 692, 122 Pa. 7; Martin v. John Clay &
Co., Mo.App., 167 S.W.2d 407, 411. An executory
sale is one which has been definitely agreed on as
to terms and conditions, but which has not yet
been carried into full effect in respect to some of
its terms or details, as where it remains to deter-
mine the price, quantity, or identity of the thing
sold, or to pay installments of purchase-money, or
to effect a delivery. McFadden v. Henderson, 29
So. 640, 128 Ala. 221; Fogel v. Brubaker, 15 A.
692, 122 Pa. 7; Smith v. Barron County Sup'rs,
44 Wis. 691.
Execution sale. See Execution Sale.
Fair sale. See Fair Sale.
Forced sale. A sale made without the consent
or concurrence of the owner of the property, but
by virtue of judicial process, such as a writ of
execution or an order under a decree of foreclo-
sure.
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Fraudulent sale. One made for the purpose of
defrauding the creditors of the owner of the prop-
erty, by covering up or removing from their reach
and converting into cash property which would be
subject to the satisfaction of their claims.
Judicial sale. One made under the process of
a court having competent authority to order it,
by an officer duly appointed and commissioned to
sell, as distinguished from a sale by an owner
in virtue of his right of property. Union Trading
Co. v. Drach, 58 Colo. 550, 146 P. 767, 770. Chap-
man v. Guaranty State Bank, Tex.Com.App., 267
S.W. 690, 693.
Memorandum sale. That form of conditional
sale in which the goods are placed in the posses-
sion of the vendee subject to his approval, the ti-
tle remaining in the seller until they are either
accepted or rejected by the vendee.
Private sale. One negotiated and concluded
privately between buyer and seller, and not made
by advertisement and public outcry or auction.
Barcello v. Hapgood, 118 N.C. 712, 24 S.E. 124.
Public sale. A sale made in pursuance of a no-
tice, by auction or public outcry. Union & Mer-
cantile Trust Co. v. Harnwell, 158 Ark. 295, 250 S.
W. 321, 323.
Sale and return. A species of contract by which
the seller (usually a manufacturer or wholesaler)
delivers a quantity of goods to the buyer, on the
understanding that, if the latter should desire
to retain or use or resell any portion of such
goods, he will consider such part as having been
sold to him, and will pay their price, and the bal-
ance he will return to the seller, or hold them, as
bailee, subject to his order. Sturm v. Boker, 14
S.Ct. 99, 150 U.S. 312, 37 L.Ed. 1093; Haskins v.
Dern, 19 Utah, 89, 56 P. 953; Hickman v. Shimp,
109 Pa. 16; G. A. Soden & Co. v. T. J. Wilkinson
& Son, 100 So. 182, 184, 135 Miss. 665.
Under "contract of sale and return" title vests immedi-
ately in buyer, who has privilege of rescinding sale, and
until privilege is exercised title remains in him. Rio
Grande Oil Co. v. Miller Rubber Co. of New York, 31 Ariz.
84, 250 P. 564.
Sale by sample. A sales contract in which it is
the understanding of both parties that the goods
exhibited constitute the standard with which the
goods not exhibited correspond and to which de-
liveries should conform. M. C. Kiser Co. v. Bran-
an, 31 Ga.App. 241, 120 S.E. 427, 429.
Sale in gross. A sale by the tract, without re-
gard to quantity; it is in that sense a contract of
hazard. Miller v. Moore, 45 Cal.App. 283, 187 P.
763, 764; Cox v. Collins, 205 Ala. 491, 88 So. 440,
441.
Sale-note. A memorandum of the subject and
terms of a sale, given by a broker or factor to the
seller, who bailed him the goods for that purpose,
and to the buyer, who dealt with him. Also call-
ed "bought and sold notes."
Sale on approval. A species of conditional sale,
which is to become absolute only in case the buy-
er, on trial, approves or is satisfied with the ar-
ticle sold. The approval, however, need not be
express; it may be inferred from his keeping the
goods beyond a reasonable time. Benj.Sales, §
911; Warren v. Russell, 143 Ark. 516, 220 S.W.
831.
Sale on credit. A sale of property accompanied
by delivery of possession, but where payment of
the price is deferred to a future day. In re
Heinze's Estate, 224 N.Y. 1, 120 N.E. 63, 64.
Sale per aversionem. In the civil law, a sale
where the goods are taken in bulk, or not by
weight or measure, and for a single price, or
where a piece of land is sold for a gross sum, to
be paid for the whole premises, and not at a fixed
price by the acre or foot. State v. Buck, 46 La.
Ann. 656, 15 So. 531.
Sale with all faults. On what is called a "sale
with all faults," unless the seller fraudulently
and inconsistently represents the article sold to
be faultless, or contrives to conceal any fault
from the purchaser, the latter must take the ar-
ticle for better or worse. 3 Camp. 154; Brown.
Sale with right of redemption. A sale in which
vendor reserves right to take back property by re-
turning price paid. Glover v. Abney, 160 La. 175,
106 So. 735, 739.
Sheriff's sale. A sale of property, conducted by
a sheriff, or sheriff's deputy, in virtue of his au-
thority as an officer holding process. Anderson,
L. Dict.; Batchelder v. Carter, 2 Vt. 172, 19 Am.
Dec. 707.
Tax-sale. A sale of land for unpaid taxes; a
sale of property, by authority of law, for the col-
lection of a tax assessed upon it, or upon its own-
er, which remains unpaid.
Voluntary sale. One made freely, without con-
straint, by the owner of the thing sold. 1 Bouv.
Inst. no. 974.
SALESMAN. One whose occupation is to sell, as
goods, merchandise, land, securities, transporta-
tion, etc., either in a store or within a given terri-
tory; specifically, a commercial traveler. In re
Herbert Candy Co., D.C.Pa., 43 F.Supp. 588, 590.
SALET. In old English law. A headpiece; a steel
cap or morion. Cowell.
SALFORD HUNDRED COURT OF RECORD. An
inferior and local court of record having jurisdic-
tion in personal actions where the debt or damage
sought to be recovered does not exceed £50, if the
cause of action arise within the hundred of Sal-
ford. St. 31 & 32 Vict. c. 130; 2 Exch.Div. 346.
SALIC LAW. A body of law framed by the Salian
Franks, a Teutonic race who settled in Gaul about
the beginning of the fifth century.
It is the most ancient of the barbarian Codes. It is said
to have been compiled about the year 420. It embraced the
laws and customs of the Salian Franks. It is of great
historical value, in connection with the origins of feudal-
ism and similar subjects. Its most celebrated provision
Black's Law Dictionary Revised 4th Ed.-95
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SALIC
was one which excluded women from the inheritance of
landed estates, by an extension of which law females were
always excluded from succession to the crown of France.
Hence this provision, by itself, is often referred to as the
"Salic Law."
In French jurisprudence. The name is fre-
quently applied to that fundamental law of France
which excluded females from succession to the
crown. Supposed to have been derived from the
sixty-second title of the Salic Law, "De Alode."
Brande.
SALINE LAND. Land having salt deposits. To
fourteen states congress has granted all the salt
springs within them; to twelve, a limited grant
of them was made. Eighteen states have received
no such grant. Montello Salt Co. v. Utah, 31 S.
Ct. 706, 221 U.S. 452, 55 L.Ed. 810, Ann.Cas.1912D,
633.
SALMANNUS. A sale-man, found in the Salic
Law in the fifth century, who was a third person
called in to complete the transfer of property. 12
Harv.L.Rev. 445, Law in Science, etc., by 0. W.
Holmes, Jr.
SALOON. A place of refreshment. Hinton v.
State, 137 Tex.Cr.R. 352, 129 S.W.2d 670, 673. An
apartment for a specified public use. Clinton v.
Grusendorf, 80 Iowa 117, 45 N.W. 408. In common
parlance, a place where intoxicating liquors are
sold and consumed. Gibbs v. Arras Bros., 222
N.Y. 332, 118 N.E. 857, 858, L.R.A.1918F, 826, Ann.
Cas.1918D, 1141.
SALOON-KEEPER. This expression has a defi-
nite meaning, namely, a retailer of cigars, liquors,
etc. Cahill v. Campbell, 105 Mass. 40.
SALT DUTY IN LONDON. A custom in the city
of London called "granage," formerly payable to
the lord mayor, etc., for salt brought to the port
of London, being the twentieth part. Wharton.
SALT SILVER. One penny paid at the feast day
of St. Martin, by the tenants of some manors, as
a commutation for the service of carrying their
lord's salt from market to his larder. Paroch.An-
tiq. 496.
SALUS. Lat. Health; prosperity; safety.
SALUS POPULI SUPREMA LEX. The welfare
of the people is the supreme law. Bac. Max. reg.
12; Broom, Max. 1-10; Montesq. Esprit des Lois,
lib. 26, c. 23; 13 Coke, 139; Lingo Lumber Co. v.
Hayes, Tex.Civ.App., 64 S.W.2d 835, 839.
SALUS REIPUBLICIE SUPREMA LEX. The
welfare of the state is the supreme law. Inhabi-
tants of Springfield v. Connecticut River R. Co.,
4 Cush. (Mass.) 71.
SALUS UBI MULTI CONSILIARII. 4 Inst. 1.
Where there are many counselors, there is safety.
SALUTE. A gold coin stamped by Henry V. in
France, after his conquests there, whereon the
arms of England and France were stamped quar-
terly. Cowell.
In the army and navy an honor paid to a dis-
tinguished personage, when troops or squadrons
meet, when officers are buried, or to celebrate an
event or show respect to a flag and on many other
ceremonial occasions. Cent. Dict.
SALVA GARDIA. L. Lat. Safeguard. Reg.
Orig. 26.
SALVAGE. In maritime law. A compensation
allowed to persons by whose assistance a ship or
its cargo has been saved, in whole or in part,
from impending danger, or recovered from actual
loss, in cases of shipwreck, derelict, or recapture.
3 Kent, Comm. 245; Cope v. Vallette Dry-Dock
Co., 7 S.Ct. 336, 119 U.S. 625, 30 L.Ed. 501; J. M.
Guffey Petroleum Co. v. Borison, C.C.A.Tex., 211
F. 594, 601.
Elements necessary to valid "salvage" are marine peril,
with service voluntarily rendered, when not required as
existing duty, or from a special contract, and success in
whole or in part, and that service rendered contributed to
such success. Robert R. Sizer & Co. v. Chiarello Bros., D.
C.N.Y., 32 F.2d 333, 335.
In the older books of the law, (and sometimes in
modern writings,) the term is also used to denote
the goods or property saved.
Equitable Salvage
By analogy, the term "salvage" is sometimes
also used in cases which have nothing to do with
maritime perils, but in which property has been
preserved from loss by the last of several ad-
vances by different persons. In such a case, the
.person making the last advance is frequently en-
titled to priority over the others, on the ground
that, without his advance, the property would have
been lost altogether. This right, which is some-
times called that of "equitable salvage," and is in
the nature of a lien, is chiefly of importance with
reference to payments made to prevent leases or
policies of insurance from being forfeited, or to
prevent mines and similar undertakings from be-
ing stopped or injured. 1 Fish.Mortg. 149; 3 Ch.
Div. 411; L.R. 14 Eq. 4; 7 Ch.Div. 825.
Salvage Charges
This term includes all the expenses and costs
incurred in the work of saving and preserving the
property which was in danger. The salvage
charges ultimately fall upon the insurers.
Salvage Loss
That kind of loss which it is presumed would,
but for certain services rendered and exertions
made, have become a total loss. In the language
of marine underwriters, this term means the dif-
ference between the amount of salvage, after
deducting the charges, and the original value of
the property insured. Koons v. La Fonciere Corn-
pagnie, D.C.Cal., 71 F. 981.
Salvage Service
A service voluntarily rendered to a vessel in
need of assistance, and is designed to relieve her
from distress or danger, either present or to be
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SANGUINE
reasonably apprehended and for which a salvage
reward is allowed by the maritime law. The
Emanuel Stavroudis, D.C.Md., 23 F.2d 214, 216.
It is distinguished from "towage service," in that the
latter is rendered for the mere purpose of expediting a
vessel's voyage, without reference to any circumstances of
danger, though the service in each case may be rendered in
the same way. The Emanuel Stavroudis, D.C.Md., 23 F.2d
214, 216.
SALVIAN INTERDICT. See Interdictum Sal-
vianum.
SALVO. Lat. Saving; excepting; without preju-
dice to. Salvo me et hceredibus meis, except me
and my heirs. Salvo jure cujuslibet, without
prejudice to the rights of any one.
SALVOR. A person who, without any particular
relation to a ship in distress, proffers useful serv-
ice, and gives it as a volunteer adventurer, with-
out any pre-existing covenant that connected him
with the duty of employing himself for the pres-
ervation of that ship. The Clara, 23 Wall. 16, 23
L.Ed. 150; The Dumper, C.C.A.N.Y., 129 F. 99,
63 C.C.A. 600; Central Stockyard Co. v. Mears,
85 N.Y.S. 795, 89 App.Div. 452.
SALVUS PLEGIUS. L. Lat. A safe pledge;
called, also, "certus plegius," a sure pledge.
Bract. fol. 160b.
SAME. The word "same" does not always mean
"identical," not different or other. It frequently
means of the kind or species, not the specific
thing. Crapo v. Brown, 40 Iowa 487, 493. When
preceded by the definite article, meaning the one
just referred to. In re Conner's Estate, 318 Pa.
150, 178 A. 15, 17.
SAME INVENTION. Within reissue statute,
whatever invention was described in original
letters patent, and appears therein to have been
intended to be secured thereby. 35 U.S.C.A. § 64;
Morgan v. Drake, Cust. & Pat.App., 36 F.2d 511,
512. It is not to be determined by the claims of
the original patent but from the description and
such other evidence as the commissioner may
deem relevant. Detrola Radio & Television Cor-
poration v. Hazeltine Corporation, C.C.A.Mich.,
117 F.2d 238, 241.
SAME OFFENSE. As used in Constitution, pro-
viding that no person shall be twice put in jeop-
ardy for the same offense, does not signify the
same offense eo nomine, but the same criminal act,
transaction, or omission. State v. Shaver, 197
Iowa 1028, 198 N.W. 329, 336.
SAMPLE. A specimen; a small quantity of any
commodity, presented for inspection or examina-
tion as evidence of the quality of the whole; as
a sample of cloth or of wheat.
SAMPLE, SALE BY. A sale at which only a
sample of the goods sold is exhibited to the buyer.
See "Sale."
SANATORIUM. A health retreat, or institution
for the treatment of disease or care of invalids.
People v. Gold, Sp.Sess., 6 N.Y.S.2d 264, 268.
SANZE MENTIS. Lat. In old English law. Of
sound mind. Fleta, lib. 3, c. 7, § 1.
SANCTIO. Lat. In the civil law. That part of a
law by which a penalty was ordained against
those who should violate it. Inst. 2, 1, 10.
SANCTION, v. To assent, concur, confirm, or
ratify. U. S. v. Tillinghast, D.C.R.I., 55 F.2d 279,
283.
SANCTION, n. In the original sense of the word,
a penalty or punishment provided as a means of
enforcing obedience to a law. In jurisprudence,
a law is said to have a sanction when there is a
state which will intervene if it is disobeyed or
disregarded. Therefore international law has no
legal sanction. Sweet.
In a more general sense, a conditional evil
annexed to a law to produce obedience to that
law; and, in a still wider sense, an authorization
of anything. Occasionally, "sanction" is used
(e. g., in Roman law) to denote a statute, the
part (penal clause) being used to denote the
whole. Brown.
The vindicatory part of a law, or that part
which ordains or denounces a penalty for its vio-
lation. 1 Bl.Comm, 56.
SANCTUARY. In old English law. A consecrated
place which had certain privileges annexed to it,
and to which offenders were accustomed to resort
for refuge, because they could not be arrested
there, nor the laws be executed.
SANDBAG. A tube of strong, flexible material
filled with sand, by which a heavy blow may be
struck which leaves little or no mark on the skin.
Cent. Diet. It is included in the general term sap
(q. v.).
SAND—GAVEL. In old English law. A payment
due to the lord of the manor of Rodley, in the
county of Gloucester, for liberty granted to the
tenants to dig sand for their common use. Cowell.
SANE. Of natural and normal mental condition;
healthy in mind.
One who knows the difference between right
and wrong, and appreciates the consequences
of his acts. State v. Migues, 194 La. 1081, 195
So. 545, 547. Stout v. State, 142 Tex.Civ.R. 537,
155 S.W.2d 374, 377.
SANE MEMORY. Sound mind, memory, and un-
derstanding. This is one of the essential ele-
ments in the capacity of contracting; and the
absence of it in lunatics and idiots, and its im-
maturity in infants, is the cause of their respective
incapacities or partial incapacities to bind them-
selves. The like circumstance is their ground of
exemption in cases of crime. Brown.
SANG, or SANG. In old French. Blood.
SANGUINE, or MURREY. An heraldic term for
"blood-color," called, in the arms of princes, "drag-
on's tail," and, in those of lords, "sardonyx.'
It is a tincture of very infrequent occurrence,
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SANGUINEM
and not recognized by some writers. In engrav-
ing, it is denoted by numerous lines in saltire.
Wharton.
SANGUINEM EMERE. Lat. In feudal law. A
redemption by villeins, of their blood or tenure,
in order to become freemen.
SANGUINIS CONJUNCTIO BENEVOLENTIA
DEVINCIT HOMINES ET CARITATE. A tie of
blood overcomes men through benevolence and
family affection. Steere v. Steere, 5 Johns.Ch.
(N.Y.) 1, 13, 9 Am.Dec. 256.
SANGUIS. Lat. In the civil and old English law.
Blood; consanguinity.
The right or power which the chief lord of the
fee had to judge and determine cases where blood
was shed. Mon. Aug. t. i. 1021.
SANIPRACTIC. A method of drugless healing.
Martin v. Department of Social Security, 12 Wash.
2d 329, 121 P.2d 394, 395.
SANIPRACTORS. Drugless- healers. State v.
Lydon, 170 Wash. 354, 16 P.2d 848, 851.
SANIS. A kind of punishment among the Greeks;
inflicted by binding the malefactor fast to a piece
of wood. Enc. Lond.
SANITARIUM. Health station or retreat; board-
ing-house, or other place where patients are kept
and where medical and surgical treatment is giv-
en. City of Atlanta v. Blackman Health Resort,
153 Ga. 499, 113 S.E. 545, 548.
SANITARY. That which pertains to health, with
especial reference to cleanliness and freedom from
infective and deleterious influences. Mayor and
City Council of Baltimore v. Bloecher & Schaff,
149 Md. 648, 132 A. 160, 162.
SANITARY AUTHORITIES. In English law.
Bodies having jurisdiction over their respective
districts in regard to sewerage, drainage, scaveng-
ing, the supply of water, the prevention of nui-
sances and offensive trades, etc., all of which come
under the head of "sanitary matters" in the spe-
cial sense of the word. Sanitary authorities also
have jurisdiction in matters coming under the
head of "local government." Sweet.
SANITATION. Devising and applying of meas-
ures for preserving and promoting public health;
removal or neutralization of elements injurious to
health; practical application of sanitary science.
Smith v. State, 160 Ga. 857, 129 S.E. 542, 544.
SANITY. Sound understanding; the normal con-
dition of the human mind; the reverse of insani-
ty, (q. v.). Rust v. Reid, 124 Va. 1, 97 S.E. 324,
331.
The accepted test of "sanity" in criminal cases is wheth-
er defendant could distinguish between right and wrong.
People v. Dawa, 15 Cal.2d 393, 101 P.2d 498, 499.
SANS CEO QUE. L. Fr. Without this. See
Absque Hoc.
SANS FRAIS. Fr. Without expense. See Retour
Sans Protet.
SANS IMPEACHMENT DE WAST. L. Fr. With-
out impeachment of waste. Litt. § 152. See
Absque Impetitione Vasti.
SANS JOUR. Fr. Without day; sine die.
SANS NOMBRE. Fr. A term used in relation
to the right of putting animals on a common. The
term "common sans hombre" does not mean that
the beasts are to be innumerable, but only indefi-
nite; not certain. Willes, 227.
SANS RECOURS. Fr. Without recourse. See
Indorsement.
SAP. A general term which, as applied to weap-
ons, includes a "blackjack," "slung shot," "billy,"
"sandbag," or "brass knuckles" (see those terms).
People v. Mulherin, 35 P.2d 174, 175, 176, 140 Cal.
App. 212.
SAPIENS INCIPIT A FINE, ET QUOD PRIMUM
EST IN INTENTIONE, ULTIMUM EST IN EXE-
CUTIONE. A wise man begins with the last, and
what is first in intention is last in execution. 10
Coke, 25.
SAPIENS OMNIA AGIT CUM CONSILIO. A
wise man does everything advisedly. 4 Inst. 4.
SAPIENTIA LEGIS NUMMARIO PRETIO NON
EST 1ESTIMANDA. The wisdom of the law can-
not be valued by money. Jenk. Cent. 168.
SAPIENTIS JUDICIS EST COGITARE TANTUM
SIBI ESSE PERMISSUM, QUANTUM COMMIS-
SUM ET CREDITUM. It is the part of a wise
judge to think that a thing is permitted to him,
only so far as it is committed and intrusted to
him. 4 Inst. 163. That is, he should keep his
jurisdiction within the limits of his commission.
SARCULATURA. L. Lat. In old records. Weed-
ing corn. A tenant's service of weeding for the
lord. Cowell.
SART. In old English law. A piece of woodland,
turned into arable. Cowell.
SARUM. In old records The city of Salisbury
in England. Spelman.
SASINE. In Scotch law. The symbolical delivery
of land, answering to the livery of seisin of the old
English law. 4 Kent, Comm. 459.
SASSE. In old English law. A kind of wear
with flood-gates, most commonly in cut rivers,
for the shutting up and letting out of water, as
occasion required, for the more ready passing of
boats and barges to and fro; a lock; a turnpike;
a sluice. Cowell.
SASSONS. The corruption of Saxons. A name of
contempt formerly given to the English, while
they affected to be called "Angles;" they are still
so called by the Welsh.
SATIS LIQUET. See Liquet.
SATISDARE. Lat. In the civil law. To guaran-
ty the obligation of a principal.
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SAVING
SATISDATIO. Lat. In the civil law. Security
given by a party to an action, as by a defendant, to
pay what might be adjudged against him. Inst. 4,
11; 3 Bl.Comm. 291.
SATISFACTION. Act of satisfying; the state of
being satisfied. Seago v. New York Cent. R. Co.,
349 Mo. 1249; 164 S.W.2d 336, 341. The discharge
of an obligation by paying a party what is due
to him, (as on a mortgage, lien, or contract,) or
what is awarded to him, by the judgment of a
court or otherwise. Thus, a judgment is satisfied
by the payment of the amount due to the party
who has recovered such judgment, or by his levy-
ing the amount. Bryant v. Fairfield, 51 Me. 152;
Armour Bros. Banking Co. v. Addington, 37 S.W.
100, 1 Ind.T. 304. The execution or carrying into
effect of an accord. Barber v. Mallon, Mo.App.,
168 S.W.2d 177, 179; R. J. Bearings Corporation
v. Warr, 192 Oki. 133, 134 P.2d 355, 357.
Practice
An entry made on the record, by which a party
in whose favor a judgment was rendered declares
that he has been satisfied and paid.
Equity
The doctrine of satisfaction in equity is some-
what analogous to performance in equity, but
differs from it in this respect: that satisfaction is
always something given either in whole or in part
as a substitute or equivalent for something else,
and not (as in performance) something that may
be construed as the identical thing covenanted to
be done. Brown.
SATISFACTION, CONTRACTS TO. A class of
contracts in which one party agrees to perform his
promise to the satisfaction of the other. A con-
tract for construction work "to the entire satis-
faction of the owners" imports that the construc-
tion be to the satisfaction of a reasonable man and
not to the personal satisfaction of owners. Waite
v. C. E. Shoemaker & Co., 50 Mont. 264, 146 P. 736,
742.
SATISFACTION PIECE. In practice. A memo-
randum in writing, entitled in a cause, stating that
satisfaction is acknowledged between the parties,
plaintiff and defendant. Upon this being duly ac-
knowledged and filed in the office where the rec-
ord of the judgment is, the judgment becomes
satisfied, and the defendant discharged from it.
1 Archb.Pr. 722.
SATISFACTION SHOULD BE MADE TO THAT
FUND WHICH HAS SUSTAINED THE LOSS.
4 Bouv. Inst. no. 3731.
SATISFACTORY. Where a contract provides that
it is to be performed in a manner "satisfactory" to
one of the parties, the provision must be construed
as meaning that the performance must be such
that the party, as a reasonable person, should be
satisfied with it. Hoff v. L. Gould & Co., 198 Ill.
App. 499, 501.
SATISFACTORY EVIDENCE. Such evidence as
is sufficient to produce a belief that the thing is
true; credible evidence; such evidence as, in re-
spect to its amount or weight, is adequate or suf-
ficient to justify the court or jury in adopting the
conclusion in support of which it is adduced.
Walker. v. Collins, C.C.A.Kan., 59 F. 74, 8 C.C.A.
1; U. S. v. Lee Huen, D.C.N.Y., 118 F 457.
"Satisfactory evidence," which is sometimes called "suf-
ficient evidence," means that amount of proof which ordi-
narily satisfies an unprejudiced mind beyond a reasonable
doubt. Thayer v. Boyle, 30 Me. 475, 481 (citing 1 Greenl.
Ev. § 2) ; State v. Moss, 95 Or. 616, 188 P. 702, 704. See,
also, Sufficient Evidence.
SATISFIED TERM. A term of years in land is
thus called when the purpose for which it was
created has been satisfied or executed before the
expiration of the set period.
SATISFIED TERMS ACT. The statute 8 & 9
Vict. c. 112, passed to abolish satisfied outstand-
ing terms of years in land. By this act, terms
which shall henceforth become attendant upon
the inheritance, either by express declaration or
construction of law, are to cease and determine.
This, in effect, abolishes outstanding terms. 1
Steph.Comm. 380-382; Williams, Real Prop. pt.
4, c. 1.
SATISFY. To answer or discharge, as a claim,
debt, legal demand or the like. Swaner v. Union
Mortg. Co., 99 Utah 298, 105 P.2d 342, 345. To
comply actually and fully with a demand; to
extinguish, by payment or performance.
To convince, as to satisfy a jury. Lawrence v.
Goodwill, 44 Cal.App. 440, 186 P. 781, 785.
SATIUS EST PETERE FONTES QUAM SEC-
TAR! RIVULOS. Lofft, 606. It is better to seek
the source than to follow the streamlets.
SATURDAY'S STOP. In old English law. A
space of time from even-song on Saturday till
sun-rising on Monday, in which it was not lawful
to take salmon in Scotland and the northern parts
of England. Cowell.
SAUNKEFIN. L. Fr. End of blood; failure of
the direct line in successions. Spelman; Cowell.
SAUVAGINE. L. Fr. Wild animals.
SAUVEMENT. L. Fr. Safely. Sauvement gar-
des, safely kept. Britt. c. 87.
SAVE. To except, reserve, or exempt; as where
a statute "saves" vested rights. To toll, or sus-
pend the running or operation of; as to "save"
the statute of limitations.
SAVER DEFAULT. L. Fr. In old English prac,
tice. To excuse a default. Termes de la Ley.
SAVING. Preservation from danger or loss;
economy in outlay; prevention of waste; some-
thing laid up or kept from becoming expended or
lost; a reservation. Oklahoma Tax Commission
v. Sisters of the Sorrowful Mother, 186 Okl. 339,
97 P.2d 888, 892.
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SAVING CLAUSE
SAVING CLAUSE. In a statute an exception of
a special thing out of the general things mentioned
in the statute. Ordinarily a restriction in a re-
pealing act, which is intended to save rights, pend-
ing proceedings, penalties, etc., from the annihil-
ation which would result from an unrestricted re-
peal. State v. St. Louis, 174 Mo. 125, 73 S.W. 623,
61 L.R.A. 593; Bass v. Albright, Tex.Civ.App., 59
S.W.2d 891, 894.
SAVING THE STATUTE OF LIMITATIONS. A
creditor is said to "save the statute of limitations"
when he saves or preserves his debt from being
barred by the operation of the statute. Thus, in
the case of a simple contract debt, if a creditor
commence an action for its recovery within six
years from the time when the cause of action ac-
crued, he will be in time to save the statute.
Brown.
SAVINGS BANK. See Bank.
SAVINGS BANK TRUST. See Trust.
SAVOUR. To partake the nature of; to bear af-
finity to.
SAVOY. One of the old privileged places, or sanc-
tuaries. 4 Steph.Comm. 227n.
SAW LOG. A log of convenient length and other-
wise suitable for being manufactured into lumber.
Ladnier v. Ingram Day Lumber Co., 135 Miss. 632,
100 So. 369, 370.
SAXON LAGE. The laws of the West Saxons.
Cowell.
SAY ABOUT. This phrase, like "more or less,"
is frequently introduced into conveyances or con-
tracts of sale, to indicate that the quantity of the
subject-matter is uncertain, and is only estimated,
and to guard the vendor against the implication
of having warranted the quantity.
SAYER. In Hindu law. Variable imposts distinct
from land, rents, or revenues; consisting of cus-
toms, tolls, licenses, duties on goods; also taxes
on houses, shops, bazaars, etc. Wharton.
SC. An abbreviation for "scilicet," that is to say.
SCAB. A working man who works for lower
wages than or under conditions contrary to those
prescribed by a trade union; also one who takes
the place of a workingman on a strike. U. S. v.
Taliaferro, D.C.Va., 290 F. 214, 218.
SCAMNL In old European law. The judges or
assessors of the judges in the court held by the
count. Assistants or associates of the count; of-
ficers under the count. The permanent selected
judges of the Franks. Judges among the Ger-
mans, Franks, and Lombards, who were held in
peculiar esteem. Spelman.
SCACCARIUM. A chequered cloth resembling a
chess-board which covered the table in the excheq-
uer, and on which, when certain of the king's ac-
counts were made up, the sums were marked and
scored with counters. Hence the court of excheq-
uer, or curia scaccarii, derived its name. 3 Bl.
Comm. 44.
SCALAM. At the scale; the old way of paying
money into the exchequer. Cowell.
SCALE. In early American law. To adjust, grad-
uate, or value according to a scale. Walden v.
Payne, 2 Wash. (Va.) 5, 6.
SCALE TOLERANCE. Nominal variation be-
tween different scales in respect of the mass or
"weight" of the same goods. Smith v. Louisville
& N. R. Co., 202 Iowa, 292, 209 N.W. 465, 466.
SCALER. An expert employed to determine the
number of board feet and the percentage of un-
sound timber in logs. Connecticut Valley Lum-
ber Co. v. Stone, C.C.A.Vt., 212 F. 713, 715.
SCALING LAWS. A term used to signify stat-
utes establishing the process of adjusting the dif-
ference in value between depreciated paper money
and specie. Such statutes were rendered neces-
sary by the depreciation of paper money neces-
sarily following the establishment of American
independence. And, more recently, to discharge
those debts which were made payable in Confed-
erate money. The statutes are now obsolete.
SCALPINGS. See Wheat Scalpings.
SCAMNUM CADUCUM. In old records, the cuck-
ing-stool, (q. v.). Cowell.
SCANDAL. Defamatory reports or rumors; as-
persion or slanderous talk, uttered recklessly or
maliciously.
Pleading
With reference to necessity of keeping court
records free from scandal, an unnecessary state-
ment which bears cruelly upon an individual's
moral character, or statement of anything contra-
ry to good manners, or unbecoming court's digni-
ty to hear or which charges some person with a
crime not necessary to be shown in the cause.
Nadeau v. Texas Co., 104 Mont. 558, 69 P.2d 593,
595, 111 A.L.R. 874; Huffman v. State, 183 Ind.
698, 109 N.E. 401, 402.
SCANDALOUS MATTER. In pleading. Scandal,
which title see.
SCANDALUM MAGNATUM. In English law.
Scandal or slander of great men or nobles. Words
spoken in derogation of a peer, a judge, or other
great officer of the realm, for which an action
lies, though it is now rarely resorted to. 3 BL
Comm. 123; 3 Steph.Comm. 473. This offense
has not existed in America since the formation
of the United States. State v. Shepherd, 177 Mo.
205, 76 S.W. 79, 99 Am.St.Rep. 624.
SCAPELLARE. In old European law. To chop;
to chip or haggle. Spelman.
SCAPHA. Lat. In Roman law. A boat; a light-
er. A ship's boat.
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SCAVAGE, SCHEVAGE, SCHEWAGE, or SHEW-
AGE. A kind of toll or custom, exacted by may-
ors, sheriffs, etc., of merchant strangers, for wares
showed or offered for sale within their liberties.
Prohibited by 19 Hen. VII. c. 7. Cowell.
SCAVAIDUS. The officer who collected the scav-
age money. Cowell.
SCEATTA: A Saxon coin of less denomination
than a shilling. Spelman.
SCEPPA SALIS. An ancient measure of salt, the
quantity of which is now not known. Wharton.
SCHAR-PENNY,  SHCARN-PENNY,  or
SCHORN-PENNY. A small duty or compensa-
tion. Cowell.
SCHEDULE. A sheet of paper or parchment an-
nexed to a statute, deed, answer in equity, deposi-
tion, or other instrument, exhibiting in detail the
matters mentioned or referred to in the principal
document.
A list or inventory; the paper containing an in-
ventory.
Constitutional Law
A statement annexed to a constitution newly
adopted by a state, in which are described at
length the particulars in which it differs from the
former constitution, or which contains provisions
for the adjustment of matters affected by the
change from the old to the new constitution.
Practice
When an indictment is returned from an inferior
court in obedience to a writ of certiorari, the
statement of the previous proceedings sent with
it. 1 Saund. 309a, n. 2.
SCHEME. A design or plan formed to accom-
plish some purpose—a system. Snider v. Leath-
erwood, Tex.Civ.App., 49 S.W.2d 1107, 1110.
In English law. A document containing provi-
sions for regulating the management or distribu-
tion of property, or for making an arrangement'
between persons having conflicting rights. Thus,
in the practice of the chancery division, where
the execution of a charitable trust in the manner
directed by the founder is difficult or impractica-
ble, or requires supervision, a scheme for the man-
agement of the charity will be settled by the court.
Tud. Char. Trusts, 257; Hunt, Eq. 248; Daniell,
Ch.Pr. 1765.
SCILETES. Usury. Cowell.
SCHIREMAN. In Saxon law. An officer having
the civil government of a shire, or county; an
earl. 1 Bl.Comm. 398.
SCHIRRENS-GELD. In Saxon law. A tax paid
to sheriffs for keeping the shire or county court.
Cowell.
SCHISM. In ecclesiastical law. A division or
separation in a church or denomination of Chris-
tians, occasioned by a diversity of faith, creed, or
religious opinions. Lindstrom v. Tell, 131 Minn.
203, 154 N.W. 969, 971.
SCHISM-BILL. In English law. The name of an
act passed in the reign of Queen Anne, which re-
strained Protestant dissenters from educating
their own children, and forbade all tutors and
schoolmasters to be present at any conventicle or
dissenting place of worship. The queen died on
the day when this act was to have taken effect,
(August 1, 1714,) and it was repealed in the fifth
year of Geo. I. Wharton.
SCHOOL. An institution or place for instruction
or education. Bastendorf v. Arndt, 290 Mich. 423,
287 N.W. 579, 580, 124 A.L.R. 445. An institution
of learning of a lower grade, below a college or
a university. A place of primary instruction. The
term generally refers to the common or public
schools, maintained at the expense of the public.
Alexander v. Phillips, 31 Ariz. 503, 254 R 1056,
1058, 52 A.L.R. 244.
Common Schools
Schools maintained at the public expense and
administered by a bureau of the state, district, or
municipal government, for the gratuitous educa-
tion of the children of all citizens without distinc-
tion. Board of Education of City of Sapulpa v.
Corey, 63 Okl. 178, 163 P. 949, 953; State v. O'Dell,
187 Ind. 84, 118 N.E. 529, 530.
Consolidated School District
A common school district where two or more
existing schools have consolidated into one single
district. Trustees of Walton School v. Board of
Sup'rs of Covington County, 115 Miss. 117, 75 So.
833, 834; Rice v. Gong Lum, 139 Miss. 760, 104
So. 105, 110.
District School
A common or public school for the education at
public expense of the children residing within a
given district; a public school maintained by a
"school district." See infra.
Grade School
A school in which the pupils are classified ac-
cording to progress and taught by different teach-
ers so that a rural school under one teacher is
not included within the exception, although vari-
ous pupils in various stages of progress are classi-
fied. Board of County Com'rs of Laramie Coun-
ty v. State, 24 Wyo. 364, 158 P. 801, 804.
High School
A school in which higher branches of learning
are taught than in the common schools. Thur-
man-Watts v. Board of Education of City of Cof-
feyville, 115 Kan. 328, 222 P. 123, 125. A school in
which such instruction is given as will prepare
the students to enter a college or university.
Whitlock v. State, 30 Neb. 815, 47 N.W. 284.
Normal School
A training school for teachers; one in which
instruction is given in the theory and practice of
teaching; particularly, in the system of schools
generally established throughout the United
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States, a school for the training and instruction of
those who are already teachers in the public
schools or those who desire and expect to become
such. Board of Regents v. Painter, 102 Mo. 464,
14 S.W. 938, 10 L.R.A. 493
Private School
One maintained by private individuals or cor-
porations, not at public expense, and open only to
pupils selected and admitted by the proprietors or
governors, or to pupils of a certain class or pos-
sessing certain qualifications, (racial, religious, or
otherwise,) and generally supported, in part at
least, by tuition fees or charges Quigley v. State,
5 Ohio Cir.Ct.R. 638.
Public Schools
Schools established under the laws of the state
(and usually regulated in matters of detail by the
local authorities), in the various districts, counties,
or towns, maintained at the public expense by tax-
ation, and open with or without charge to the
children of all the residents of the town or other
district. St. Joseph's Church v. Assessors of
Taxes, 12 R.I. 19, 34 Am.Rep. 597. Litchman v.
Shannon, 90 Wash. 186, 155 P. 783, 784. Schools
belonging to the public and established and con-
ducted under public authority; not schools owned
and conducted by private parties, though they
may be open to the public generally and though
tuition may be free. Gerke v. Purcell, 25 Ohio St.
229.
School Board
A board of municipal officers charged with the
administration of the affairs of the public schools.
They are commonly organized under the general
laws of the state, and fall within the class of quasi
corporations, sometimes coterminous with a coun-
ty or borough, but not necessarily so. The mem-
bers of the school board are sometimes termed
"school directors," or the official style may be "the
board of school directors." The circuit of their
territorial jurisdiction is called a "school district,"
and each school district is usually a separate tax-
ing district for school purposes.
School Directors
See School Board.
School District
A public and quasi municipal corporation, or-
ganized by legislative authority or direction, com-
prising a defined territory, for the erection, rhain-
tenance, government, and support of the public
schools within its territory in accordance with
and in subordination to the general school laws
of the state, invested, for these purposes only,
with powers of local self-government and general-
ly of local taxation, and administered by a board
of officers, usually elected by the voters of the
district, who are variously styled "school direc-
tors," or "trustees," "commissioners," or "super-
visors" of schools. Hamilton v. San Diego Coun-
ty, 108 Cal. 273, 41 P. 305; Duff v. School Dist. of
Perry Tp., 281 Pa. 87, 126 A. 202.
School Lands
Public lands of a state set apart by the state (or
by congress in a territory) to create, by the pro-
ceeds of their sale, a fund for the establishment
and maintenance of public schools.
School-Master
One employed in teaching a school.
SCHOOL PURPOSES. This term in constitution-
al provision limiting rates of taxation covers or-
dinary expenses of maintaining and operating
schools. Peter v. Kaufmann, 327 Mo. 915, 38 S.W.
2d 1062, 1067.
SCHOUT. In Dutch law. An officer of a court
whose functions somewhat resemble those of a
sheriff.
SC!. FA. An abbreviation for "scire facias,"
(q. v.).
SCIENDUM. Lat. In English law. The name
given to a clause inserted in the record by which
it is made known that the justice here in court, in
this same term, delivered a writ thereupon to the
deputy-sheriff of the county aforesaid, to be exe-
cuted in due form of law. Lee, Dict. "Record."
SCIENDUM EST. Lat. It is to be known; be it
remarked. In the books of the civil law, this
phrase is often found at the beginning of a chap-
ter or paragraph, by way of introduction to some
explanation, or directing attention to some par-
ticular rule.
SCIENTER. Lat. Knowingly. The term is used
in pleading to signify an allegation (or that part
of the declaration or indictment which contains
it) setting out the defendant's previous knowl-
edge of the cause which led to the injury complain-
ed of, or rather his previous knowledge of a state
of facts which it was his duty to guard against,
and his omission to do which has led to the injury
complained of. The insertion of such an allega-
tion is called "laying the action (or indictment)
with a scienter." And the term is frequently us-
ed to signify the defendant's guilty knowledge.
People v. Gould, 237 Mich. 156, 211 N.W. 346, 348.
Horton v. Tyree, 104 W.Va. 238, 139 S.E. 737, 738.
SCIENTI ET VOLENTI NON FIT INJURIA.
Bract. fol. 20. An injury is not done to one who
knows and wills it.
SCIENTIA SCIOLORUM EST MIXTA IGNOR-
ANTIA. 8 Coke, 159. The knowledge of smat-
terers is diluted ignorance.
SCIENTIA UTRIMQUE PAR PARES CONTRA-
HENTES FACIT. Equal knowledge on both sides
makes contracting parties equal. 3 Burrows,
1905. An insured need not mention what the un-
derwriter knows, or what he ought to know.
Broom, Max. 772.
SCILICET. Lat. To-wit; that is to say. A word
used in pleadings and other instruments, as intro-
ductory to a more particular statement of matters
previously mentioned in general terms. Hob. 171,
172.
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SCINTILLA. Lat. A spark; a remaining par-
ticle; the least particle.
SCINTILLA JURIS. In real property law. A.
spark of right or interest. By this figurative ex-
pression was denoted the small particle of inter-
est which, by a fiction of law, was supposed to re-
main in a feoffee to uses, sufficient to support con-
tingent uses afterwards coming into existence,
and thereby enable the statute of uses (27 Hen.
VIII. c. 10) to execute them. 2 Washb. Real Prop.
125; 4 Kent, Comm. 238.
SCINTILLA OF EVIDENCE. A spark of evi-
dence. Cunningham v. Union Pac. Ry. Co., 4
Utah, 206, 7 P. 795, 797. A metaphorical expres-
sion to describe a very insignificant or trifling
item or particle of evidence; used in the state-
ment of the common-law rule that if there is any
evidence at all in a case, even a mere scintilla,
tending to support a material issue, the case can-
not be taken from the jury, but must be left to
their decision. Offutt v. World's Columbian Ex-
position, 175 El. 472, 51 N.E. 651.
Any material evidence that, if true, would tend
to establish issue in mind of reasonable juror.
Thackston v. Shelton, 178 S.C. 240, 182 S.E. 436;
Lancaster v. South Carolina Power Co., 181 S.C.
244, 186 S.E. 911, 913. Something of substance
and relevant consequence and not vague, uncer-
tain, or irrelevant matter not carrying quality of
proof or having fitness to induce conviction. City
of Houston v. Scanlan, 120 Tex. 264, 37 S.W.2d
718. Wigginton's Adm'r v. Louisville Ry. Co.,
256 Ky. 287, 75 S.W.2d 1046, 1051, courts differ as
to what constitutes a "scintilla," and some courts
do not accept the rule. Sobolovitz v. Lubric Oil
Co., 107 Ohio St. 204, 140 N.E. 634, 635.
It is the duty of trial court to instruct a verdict, though
there is slight testimony, if its probative force is so weak
that it only raises suspicion of existence of facts sought to
be established, since such testimony falls short of being
"evidence". Texas Pacific Coal & Oil Co. v. Wells, Tex.
Civ.App., 151 S.W.2d 927, 929.
Suggestions, if any, from evidence did not amount to
"evidence". Cooksey v. McGuire, Tex.Civ.App., 146 S.W.2d
480, 483.
SCIRE DEBES CUM QUO CONTRAHIS. You
ought to know with whom you deal. 11 Mees. &
W. 405, 632; 13 Mees. & W. 171.
SCIRE ET SCIRE DEBERE )EQUIPARANTUR
IN JURE. To know a thing, and to be bound to
know it, are regarded in law as equivalent. Tray.
Leg. Max. 551.
SCIRE FACIAS. Lat. In practice. A judicial
writ, founded upon some matter of record, such
as a judgment or recognizance and requiring the
person against whom it is brought to show cause
why the party bringing it should not have advan-
tage of such record, or (in the case of a scire
facias to repeal letters patent) why the record
should not be annulled and vacated. 2 Archb.Pr.
K.B. 86; Pub. St. Mass. p. 1295. The name is
used to designate both the writ and the whole
proceeding. City of St. Louis v. Miller, 235 Mo.
App. 987, 145 S.W.2d 504, 505.
The most common application of this writ is as
a process to revive a judgment, after the lapse
of a certain time, or on a change of parties, or
otherwise to have execution of the judgment, in
which cases it is merely a continuation of the
original action. It is used more rarely as a mode
of proceeding against special bail on their recog-
nizance, and as a means of repealing letters pat-
ent, in which cases it is an original proceeding.
2 Archb. Pr. K. B. 86. American Ry. Express Co.
v. F. S. Royster Guano Co., 141 Va. 602, 126 S.E.
678, 679.
SCIRE FACIAS AD AUDIENDUM ERRORES.
The name of a writ which is sued out after the
plaintiff in error has assigned his errors. Fitzh.
Nat.Brev. 20.
SCIRE FACIAS AD DISPROBANDUM DEBIT-
UM. The name of a writ in use in Pennsylvania,
which lies by a defendant in foreign attachment
against the plaintiff, in order to enable him, with-
in a year and a day next ensuing the time of pay-
ment to the plaintiff in the attachment, to dis-
prove or avoid the debt recovered against him.
Bouvier.
SCIRE FACIAS AD REHABENDAM TERRAM.
Lies to enable a judgment debtor to recover back
his lands taken under an elegit when the judg-
ment creditor has satisfied or been paid the
amount of his judgment. Chit. 692; Fost. on
Sci.Fa. 58.
SCIRE FACIAS FOR THE CROWN. In English
law. The summary proceeding by extent is only
resorted to when a crown debtor is insolvent, or
there is good ground for supposing that the debt
may be lost by delay.' In ordinary cases where a
debt or duty appears by record to be owing to the
crown, the process for the crown is a writ of sci.
fa. quare executionem non; but should the de-
fendant become insolvent pending this writ, the
crown may abandon the proceeding and resort
to an extent. Wharton.
SCIRE FACIAS QUARE RESTITUTIONEM
NON. This writ lies where execution on a judg-
ment has been levied, but the money has not been
paid over to the plaintiff, and the judgment is aft-
erwards reversed in error or on appeal; in such
a case a scire facias is necessary before a writ of
restitution can issue. Chit. 582; Fost. on Sci. Fa.
64.
SCIRE FACIAS SUR MORTGAGE. A writ is-
sued upon the default of a mortgagor to make
payments or observe conditions, requiring him to
show cause why the mortgage should not be fore-
closed, and the mortgaged property taken and sold
in execution.
SCIRE FACIAS SUR MUNICIPAL CLAIM. A
writ of scire facias, authorized to be issued in
Pennsylvania, as a means of enforcing payment
of a municipal claim (q. v.) out of the real es-
tate upon which such claim is a lien.
SCIRE FECI. Lat. In practice. The name given
to the sheriff's return to a writ of scire facias
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that he has caused notice to be given to the party
or parties against whom the writ was issued. 2
Archb. Pr. K. B. 98, 99.
SCIRE FIERI INQUIRY. In English law. The
name of a writ formerly used to recover the
amount of a judgment from an executor.
SCIRE LEGES NON HOC EST VERBA EARUM
TENERE, SED VIM AC POTESTATEM. To
know the laws is not to observe their mere words,
but their force and power; [that . is, the essential
meaning in which their efficacy resides.] Dig. 1,
3, 17; 1 Kent, Comm. 462.
SCIRE PROPRIE EST REM RATIONE ET PER
CAUSAM COGNOSCERE. To know properly is
to know a thing in its reason, and by its cause.
We are truly said to know anything, where we
know the true cause thereof. Co.Litt. 183b.
SCIREWYTE. In old English law. A tax or
prestation paid to the sheriff for holding the as-
sizes or county courts. Cowell.
SCISSIO. Lat. In old English law. A cutting.
Scissio auricularum, cropping of the ears. An
old punishment. Fleta, lib. 1, c. 38, § 10.
SCITE, or SITE. The sitting or standing on any
place; the seat or situation of a capital messuage,
or the ground whereon it stands: Jacob.
SCOLD. A troublesome and angry woman, who,
by brawling and wrangling among her neighbors,
breaks the public peace, increases discord, and be-
comes a public nuisance to the neighborhood. 4
Steph.Comm. 276.
Common 'Scold
One who, by the practice of frequent scolding,
disturbs the neighborhood. Bish. Crim. Law, §
147. A quarrelsome, brawling, vituperative per-
son. Baker v. State, 53 N.J.Law, 45, 20 A. 858.
SCOPE.
Of Authority
Includes not only actual authorization con-
ferred upon agent by his principal, but also
that which has apparently or impliedly been dele-
gated to agent. Angerosa v. White Co., 290 N.Y.S.
204, 208, 248 App.Div. 425.
Of a Patent
The boundaries or limits of the invention pro-
tected by the patent, which are not matters of
metes and bounds and can never be defined in
the definite sense employed in thinking of physi-
cal things, but must be determined by methods
based upon established principles of patent law.
Smith v. Mid-Continent Inv. Co., C.C.A.Mo., 106
F.2d 622, 624.
SCORN, v. To hold in extreme contempt, to re-
ject as unworthy of regard; to despise, to con-
temn, to disdain. U. S. v. Strong, D.C.Wash., 263
F. 789, 796.
SCOT. In old English law. A tax, or tribute;
one's share of a contribution.
SCOT AND LOT. In English law. The name of
a customary contribution, laid upon all subjects
according to their ability. Brown.
SCOT AND LOT VOTERS. In English law.
Voters in certain boroughs entitled to the fran-
chise in virtue of their paying this contribution.
2 Steph.Comm. 360.
SCOTAL. In old English law. An extortionate
practice by officers of the forest who kept ale-
houses, and compelled the people to drink at their
houses for fear of their displeasure. Prohibited
by the charter of the forest, c. 7. Wharton.
See Charta de foresta.
SCOTCH MARRIAGES. See Gretna Green.
SCOTCH PEERS. Peers of the kindom of Scot-
land; of these sixteen are elected to parliament
by the rest and represent the whole body. They
are elected for one parliament only.
SCOTS. In English law. Assessments by com-
missioners of sewers.
SCOTTARE. To pay scot, tax, or customary dues.
Cowell.
SCOUNDREL. An opprobrious epithet, implying
rascality, villainy, or a want of honor or integrity.
In slander, this word is not actionable per se. 2
Bouv.Inst. 2250.
SCRAMBLING POSSESSION. See Possession.
SCRATCHING THE TICKET. Where partisan
voters support and vote for one or more of nom-
inees of opposite political party. Swindall v.
State Election Board, 168 Okl. 97, 32 P.2d 691, 696.
SCRAWL. Scroll, which title see.
SCREWBALL. Either a peculiar or eccentric
person like crackbrain, crackpot, crank, nut, or a
stupid or insane person like batty, bug-house, dip-
py, etc., but it does not connote opprobrium or rep-
rehensibility. Kennedy v. Crouch, Md., 62 A.2d
582, 587.
SCRIBA. Lat. A scribe; a secretary. Scriba
regis, a king's secretary; a chancellor. Spelman.
SCRIBERE EST AGERE. To write is to act.
Treasonable words set down in writing amount to
overt acts of treason. 2 Rolle, 89; 4 Bl.Comm. 80;
Broom, Max. 312, 967.
SCRIP. Certificates of ownership, either abso-
lute or conditional, of shares in a public com-
pany, corporate profits, etc. An acknowledgment
by the projectors of a company or the issuers of
a loan that the person named therein (or more
commonly the holder for the time being of the
certificate) is entitled to a certain specified num-
ber of shares, debentures, bonds, etc. It is usual-
ly given in exchange for the letter of allotment,
and in its turn is given up for the shares, deben-
tures, or bonds which it represents. Scrip cer-
tificate. Lindl. Partn. 127; Sweet.
The term has also been applied in the United States to
warrants or other like orders drawn on a municipal treas-
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SEA
ury (City of Alma v. Guaranty Say . Bank, C.C.A.8, 60 F.
207, 8 C.C.A. 564,) to certificates showing the holder to be
entitled to a certain portion or allotment of public or state
lands, Wait v. State Land Office Com'r, 87 Mich. 353, 49
N.W. 600, and to the fractional paper currency issued by
the United. States during the period of the Civil War.
SCRIP DIVIDEND. See Dividend.
SCRIPT. Where instruments are executed in part
and counterpart, the original or principal is so.
called.
English Probate Practice
A will, codicil, draft of will or codicil, or writ-
ten instructions for the same. If the will is de-
stroyed, a copy or any paper embodying its con-
tents becomes a script, even though not made un-
der the direction of the testator. Browne, Prob.
Pr. 280.
SCRIPTIE OBLIGATIONES SCRIPTIS TOLLUN-
TUR, ET NUDI CONSENSUS OBLIGATIO CON-
TRARIO CONSENSU DISSOLVITUR. Written
obligations are superseded by writings, and an
obligation of naked assent is dissolved by assent
to the contrary.
SCRIPTORIUM. In old records. A place in mon-
asteries, where writing was done. Spelman.
SCRIPTUM. Lat. A writing; something writ-
ten. Fleta, L 2, c. 60, § 25.
SCRIPTUM INDENTATUM. A writing indented;
an indenture or deed.
SCRIPTUM OBLIGATORIUM. A writing obliga-
tory. The technical name of a bond in old plead-
ings. Any writing under seal.
CRFVENER ,. A writer; scribe; conveyancer.
One whose occupation is to draw contracts, write
deeds and mortgages, and prepare other species
of written instruments.
Also an agent to whom property is intrusted by
others for the purpose of lending it out at an in-
terest payable to his principal, and for a com-
mission or bonus for himself, whereby he gains
his livelihood.
Money Scrivener
A money broker. The name was also formerly
applied in England to a person (generally an at-
torney or solicitor) whose business was to find
investments for the money of his clients, and see
to perfecting the securities, and who was often
intrusted with the custody of the securities and
the collection of the interest and principal. Wil-
liams v. Walker, 2 Sandf.Ch. (N.Y.) 325.
SCROLL. A mark intended to supply the place
of a seal, made with a pen or other instrument of
writing. Mitch. R. E. and Con y . 454, 455.
A paper or parchment containing some writing,
and rolled up so as to conceal it.
SCROOP'S INN. An obsolete law society, also
called "Serjeants' Place," opposite to St. Andrew's
Church, Holborn, London.
SCRUET-ROLL. In old practice. A species of
roll or record, on which the bail on habeas corpus
was entered.
SCRUTATOR. Lat.  In old English law. A
searcher or bailiff of a river; a water-bailiff, whose
business was to look to the king's rights, as to
his wrecks, his flotsam, jetsam, water-strays, roy-
al fishes. Hale, de Jure Mar. par. 1, c. 5.
SCURRILOUS. The low and indecent language
of the meaner sort of people, low indecency or
abuse; mean; foul; vile, synonymous with vul-
gar; foul or foul-mouthed. U. S. v. Strong, D.C.
Wash., 263 F. 789. 7 %; U. S. v. Ault, D.C.Wash.,
263 F. 800, 810.
SCUSSUS. In old European law. Shaken or beat-
en out; threshed, as grain. Spelman.
SCUTAGE. In feudal law. A tax or contribution
raised by those that held lands by knight's service,
towards furnishing the king's army, at the rate of
one, two or three marks for every knight's fee.
A pecuniary composition or commutation made
by a tenant by knight-service in lieu of actual serv-
ice. 2 Bl.Comm. 74.
A pecuniary aid or tribute originally reserved
by particular lords, instead or in lieu of personal
service, varying in amount according to the ex-
penditure which the lord had to incur in his per-
sonal attendance upon the king in his wars.
Wright, Ten. 121-134.
SCUTAGIO HABENDO. A writ that anciently
lay against tenants by knight's service to serve in
the wars, or send sufficient persons, or pay a cer-
tain sum. Fitzh. Nat. Brev. 83.
SCUTE, A French coin of gold, coined A.D. 1427,
of the value of 3s. 4d.
SCUTELLA. A scuttle; anything of a flat or
broad shape like a shield. Cowell.
SCUTELLA ELEEMOSYNARIA. An alms-bas-
ket.
SCUTIFER. In old records. Esquire; the same
as "armiger." Spelman.
SCUTUM ARMORUM. A shield or coat of arms.
Cowell.
SCYRA. In old English law. Shire; county;
the inhabitants of a county.
SCYREGEMOTE. In Saxon law. The meeting or
court of the shire. This was the most important
court in the Saxon polity, having jurisdiction of
both ecclesiastical and secular causes. Its meet-
ings were held twice in the year. Its Latin name
was "curia comitatis."
SE DEFENDENDO. Lat. In defending himself;
in self-defense. Homicide committed se defen-
dendo is excusable.
SEA. The ocean; the great mass of water which
surrounds the land. Snowdon v. Guion, 50 N.Y.
Super.Ct. 143. In marine insurance "sea" includes
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not only the high seas but the bays, inlets, and
rivers as high up as the tide ebbs and flows.
Mannheim Ins. Co. v. Charles Clarke & Co., Tex.
Civ.App., 157 S.W. 291, 293.
Beyond Sea
In England, this phrase means beyond the lim-
its of the British Isles; in America, outside the
limits of the United States or of the particular
state, as the case may be.
High Seas
The ocean; public waters. According to the
English doctrine, the high sea begins at the dis-
tance of three miles from the coast of any coun-
try; according to the American view, at low-wa-
ter mark, except in the case of small harbors and
roadsteads inclosed within the fauces terrce. U. S.
v. Grush, 26 F.Cas. 50; U. S. v. Rodgers, 14 S.Ct.
109, 150 U.S. 249, 37 L.Ed. 1071. The open ocean
outside of the fauces terrce, as distinguished from
arms of the sea; the waters of the ocean without
the boundary of any county. Any waters on the
sea-coast which are without the boundaries of low-
water mark.
Main Sea
The open, uninclosed ocean; or that portion of
the sea which is without the fauces terrce on
the sea-coast, in contradistinction to that which is
surrounded or inclosed between narrow head-
lands or promontories. U. S. v. Grush, 26 F.Cas.
48; U. S. v. Rodgers, 14 S.Ct. 109, 150 U.S. 249,
37 L.Ed. 1071.
Sea-Batteries
Assaults by masters in the merchant service
upon seamen at sea.
Sea-Bed
All that portion of land under the sea that lies
beyond the sea-shore.
Sea-Brief
Sea-Letter, which title see.
Sea-Greens
In the Scotch law. Grounds overflowed by the
sea in spring tides. Bell.
Sea-Laws
Laws relating to the sea, as the laws of Oleron,
etc.
Sea-Letter
A species of manifest, containing a description
of the ship's cargo, with the port from which it
comes and the port of destination. This is one of
the documents necessary to be carried by all neu-
tral vessels, in the merchant service, in time of
war, as an evidence of their nationality. 4 Kent,
Comm. 157; Sleght v. Hartshorne, 2 Johns. (N.Y.)
540.
The last sea letter was issued at the Port of New
York in 1806, and the use of sea letters was discontinued
by proclamation of President Madison in 1815. 46 U.S.C.A.
§§ 61, 62, note. The words "sea letter," however, are
still carried in those sections of the Code, but in 1948 were
eliminated from the criminal code as obsolete. 18 U.S.C.
A. § 507, note.
Sea-,Reeve
An officer in maritime towns and places who
took care of the maritime rights of the lord of
the manor, and watched the shore, and collected
wrecks for the lord. Tomlins.
Sea-Rovers
Pirates and robbers at sea.
Sea-Shore
The margin of the sea in its usual and ordinary
state. When the tide is out, low-water mark is
the margin of the sea; and, when the sea is full,
the margin is high-water mark. The sea-shore is
therefore all the ground between the ordinary
high-water mark and low-water mark. It cannot
be considered as including any ground always cov-
ered •by the sea, for then it would have no definite
limit on the sea-board. Neither can it include
any part of the upland, for the same reason.
Commonwealth of Massachusetts v. State of New
York, 46 S.Ct. 357, 362, 271 U.S. 65, 70 L.Ed. 838;
That space of land over which the waters of the
sea are spread in the highest water during the
winter season. Civ.Code La. art. 442.
Seaworthy, Seaworthiness
See those titles.
SEAL. An impression upon wax, wafer, or some
other tenacious substance capable of being im-
pressed. Solon v. Williamsburgh Sa y . Bank, 114
N.Y. 132, 21 N.E. 168.
A particular sign, made to attest in the most
formal manner, the execution of an instrument.
Merlin defines a seal to be a plate of metal with a flat
surface, on which is engraved the arms of a prince or na-tion, or private individual, or other device, with which an
impression may be made on wax or other substance on
paper or parchment in order to authenticate them. The
impression thus made is also called a "seal." Repert. mot
"Sceau."
"Seals" serve as an authentication of an instrument and
also as the badge of a specialty. Caruthers V. Peninsular
Life Ins. Co., 150 Fla. 467, 7 So.2d 841, 842.
Common Seal
A seal adopted and used by a corporation for
authenticating its corporate acts and executing
legal instruments.
Corporate Seal
The official or common seal of an incorporated
company or association.
Great Seal
In English law. A seal by virtue of which a
great part of the royal authority is exercised. The
office of the lord chancellor, or lord keeper, is
created by the delivery of the great seal into his
custody. There is one great seal for all public
acts of state which concern the United Kingdom.
Mozley & Whiteley. In American law, the United
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States and also each of the states has and uses a
seal, always carefully described by law, and some-
times officially called the "great" seal, though in
some instances known simply as "the seal o,f the
United States," or "the seal of the state."
Private Seal
The seal (however made) of a private person or
corporation, as distinguished from a seal em-
ployed by a state or government or any of its
bureaus or departments.
Privy Seal
In English law. A seal used in making out
grants or letters patent, preparatory to their pass-
ing under the great seal. 2 Bl.Comm. 347.
Public Seal
A seal belonging to and used by one of the bu-
reaus or departments of government, for authen-
ticating or attesting documents, process, or rec-
ords. An impression made of some device, by
means of a piece of metal or other hard substance,
kept and used by public authority. Kirksey v.
Bates, 7 Port. (Ala.) 534, 31 Am.Dec. 722.
Quarter Seal
In Scotch law. A seal kept by the director of
the chancery; in shape and impression the fourth
part of the great seal, and called in statutes the
"testimonial" of the great seal. Bell.
Seal Days
In English practice. Motion days in the court
of chancery, so called because every motion had
to be stamped with the seal, which did not lie in
court in the ordinary sittings out of term. Whar-
ton.
Seal Office
In English practice. An office for the sealing of
judicial writs.
Seal-Paper
In English law. A document issued by the lord
chancellor, previously to the commencement of
the sittings, detailing the business to be done for
each day in his court, and in the courts of the
lords justices and vice-chancellors. The master
of the rolls in like manner issued a seal-paper in
respect of the business to be heard before him.
Smith, Ch.Pr. 9.
SEALED. Authenticated by a seal; executed by
the affixing of a seal. Also fastened up in any
manner so as to be closed against inspection of
the contents.
SEALED AND DELIVERED. These words, fol.
rowed by the signatures of the witnesses, consti-
tute the usual formula for the attestation of con-
veyances.
SEALED INSTRUMENT. An instrument of
writing to which the party to be bound has af-
fixed not only his name, but also his seal, or (in
those jurisdictions where it is allowed) a scroll.
Leonor v. Ingenio Porvenir C. por A., Sup., 34
N.Y.S.2d 705, 709. And instrument must contain
recital to effect that it is given under seal. Mar-
shall v. Walker, 50 Ga.App. 551, 178 S.E. 760.
SEALED VERDICT. When the jury have agreed
upon a verdict, if the court is not in session at the
time, they are permitted (usually) to put their
written finding in a sealed envelope, and then sep-
arate. This verdict they return when the court
again convenes. The verdict thus returned has
the same effect, and must be treated in the same
manner, as if returned in open court before any
separation of the jury had taken place. Sutliff v.
Gilbert, 8 Ohio, 408; Young v. Seymour, 4 Neb.
89. But see Spielter v. North German Lloyd S. S.
Co., 249 N.Y.S. 358, 365, 232 App.Div. 104, holding
that it is mere agreement reached by jurors,
and does not become final until it is read into
record and jurors discharged.
SEALING. In matters of succession, the placing,
by the proper officer, of seals on the effects of a
succession for the purpose of preserving them,
and for the interest of third persons. The seals
are affixed by order of the judge having jurisdic-
tion. Civ.Code La. art. 1075.
SEALING UP. Where a party to an action has
been ordered to produce a document part of which
is either irrelevant to the matters in question or
is privileged from production, he may, by leave
of the court, seal up that part, if he makes an affi-
davit stating that it is irrelevant or privileged.
Daniell, Ch. Pr. 1681. The sealing up is generally
done by fastening pieces of paper over the part
with gum or wafers. Sweet.
SEALS. In Louisiana. Seals are placed upon the
effects of a deceased person, in certain cases, by
a public officer, as a method of taking official cus-
tody of the succession. See Sealing.
SEAMEN. Sailors; mariners; persons whose
business is navigating ships, or who are con-
nected with the ship as such and in some capacity
assist in its conduct, maintenance or service.
Commonly exclusive of the officers of a ship. The
Hurricane, D.C.Pa., 2 F.2d 70, 72; City of Los
Angeles v. United Dredging Co., C.C.A.Cal., 14 F
2d 364, 366; The Lillian, D.C.Me., 16 F.2d 146, 148.
One whose occupation is to navigate vessels upon
the sea including all those on board whose labor
contributes to the accomplishment of the main ob-
ject in which the vessel is engaged. Osland v.
Star Fish & Oyster Co., C.C.A.Ala., 107 F.2d 113,
114. One whose duties are maritime in character
and are rendered on a vessel in navigable waters.
Helena Glendale Ferry Co. v. Walling, C.C.A.Ark.
132 F.2d 616, 619, 620.
A vessel must be in motion or capable of motion and
regarded legally as in motion in order that those em-
ployed in its use may be regarded as "seamen". Spinner
v. Waterways Fuel & Dock Co., 70 Ohio App. 121, 41 N.E.
2d 144, 145, 146.
SEANCE. In French law. A session; as of some
public body.
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SEARCH.
Criminal Law
An examination of a man's house or other build-
ings or premises, or of his person, with a view to
the discovery of contraband or illicit or stolen
property, or some evidence of guilt to be used in
the prosecution of a criminal action for some
crime or offense with which he is charged. El-
liott v. State, 173 Tenn. 203, 116 S.W.2d 1009, 1011.
A prying into hidden places for that which is
concealed and it is not a search to observe that
which is open to view. People v. Exum, 382 Ill.
204, 47 N.E.2d 56, 59.
International Law
The right of search is the right on the part of
ships of war to visit and search merchant vessels
during war, in order to ascertain whether the
ship or cargo is liable to seizure. Resistance to
visitation and search by a neutral vessel makes
the vessel and cargo liable to confiscation. Nu-
merous treaties regulate the manner in which the
right of search must be exercised. Man. Int.
Law, 433; Sweet.
Practice
An examination of the official books and dock-
ets, made in the process of investigating a title to
land, for the purpose of discovering if there are
any mortgages, judgments, tax-liens, or other in-
cumbrances upon it.
General
Unlawful search. Within constitutional immuni-
ty from unreasonable searches and seizures, an
examination or inspection without authority of
law of premises or person with view to discovery
of stolen, contraband, or illicit property, or for
some evidence of guilt to be used in prosecution of
criminal action. Const.U.S. Amend. 4. Bush v.
State, 64 Okl.Cr. 161, 77 P.2d 1184, 1187.
Unreasonable search and seizure. At common
law, a search which is unreasonably oppressive in
its general invasion of the liberty of the citizen.
McClannan v. Chaplain, 136 Va. 1, 116 S.E. 495,
498. An examination or inspection, without au-
thority of law, of one's premises or person with
a view to the discovery of stolen contraband or
illicit property or for some evidence of guilt to
be used in prosecution for crime. Graham v.
State, 31 Okl.Cr. 125, 237 P. 462, 464. One which
is not lawful. United States v. Snyder, D.C.W.Va.,
278 F. 650, 658; Hays v. State, 38 Okl.Cr. 331, 261
P. 232, 234.
SEARCH-WARRANT. An order in writing, is-
sued by a justice or other magistrate, in the name
of the state, directed to a sheriff, constable, or
other officer, commanding him to search a speci-
fied house, shop, or other premises, for personal
property alleged to have been stolen, or for un-
lawful goods, and to bring the same, when found,
before the magistrate, and usually also the body of
the person occupying the premises, to be dealt
with according to law. People v. Lavendowsky,
329 Ill. 223, 160 N.E. 582, 585.
SEARCHER. In English law. An officer of the
customs, whose duty it is to examine and search
all ships outward bound, to ascertain whether
they have any prohibited or uncustomed goods on
board. Wharton. Jacob.
SEASHORE. That portion of land adjacent to the
sea which is alternately covered and left dry by
the ordinary flux and reflux of the tides. Wood v.
Maitland, 8 N.Y.S.2d 146, 151, 169 Misc. 484. See,
also, Sea.
SEASONAL EMPLOYMENT. As used in com-
pensation laws, as basis for determining amount of
compensation, refers to occupations which can
be carried on only at certain seasons or' fairly defi-
nite portions of the year, and does not include
such occupations as may be carried on through-
out entire year. Hiestand v. Ristau, 135 Neb.
881, 284 N.W. 756, 760. Pryor v. Brickley, Del.,
5 A.2d 242, 244, 1 Terry 5.
SEATED LAND. Land that is occupied, culti-
vated, improved, reclaimed, farmed, or used as a
place of residence. Residence without cultivation,
or cultivation without residence, or both together,
impart to land the character of being seated. The
term is used, as opposed to "unseated land," in
Pennsylvania tax laws. Earley v. Euwer, 102
Pa. 340; Coal Co. v. Fales, 55 Pa. 98.
SEAWAN. The name used by the Algonquin In-
dians for the shell beads (or wampum) which
passed among the Indians as money. Webster.
SEAWORTHINESS. In marine insurance. A
warranty of seaworthiness means that the vessel
is competent to resist the ordinary attacks of wind
and weather, and is competently equipped and
manned for the voyage, with a sufficient crew, and
with sufficient means to sustain them, and with
a captain of general good character and nautical
skill. 3 Kent, Comm. 287.
A warranty of seaworthiness extends not only
to the condition of the structure of the ship itself,
but requires that it be properly laden, and pro-
vided with a competent master, a sufficient num-
ber of competent officers and seamen, and the req-
uisite appurtenances and equipments, such as bal-
last, cables and anchors, cordage and sails, food,
water, fuel, and lights, and other necessary or
proper stores and implements for the voyage.
See, also, Seaworthy.
"Seaworthiness" involves no more than reasonable fitness
for purpose of a voyage. In re Gravel Products Corpora-
tion, C.C.A.N.Y., 24 F.2d 702, 703.
SEAWORTHY. This adjective, applied to a ves-
sel, signifies that she is properly constructed, pre-
pared, manned, equipped, and provided, for the
voyage intended. See Seaworthiness.
The term "seaworthy" is somewhat equivocal. In its
more literal sense, it signifies capable of navigating the
sea; but, more exactly, it implies a condition to be and
remain in safety, in the condition she is in, whether at sea,
in port, or on a railway, stripped and under repairs. If,
when the policy attaches, she is in a suitable place, and
capable, when repaired and equipped, of navigating the
sea, she is seaworthy. But where a vessel is warranted
seaworthy for a specified voyage, the place and usual
length being given, something more is implied than mere
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physical strength and capacity; she must be suitably offi-
cered and manned, supplied with provisions and water,
and furnished with charts and instruments, and, especially
in time of war, with documents necessary to her security
against hostile capture. The term "seaworthy," as used in
the law and practice of insurance, does not mean, as the
term would seem to imply, capable of going to sea or of
being navigated on the sea; it imports something very dif-
ferent, and much more, viz., that she is sound, staunch, and
strong, in all respects, and equipped, furnished, and pro-
vided with officers and men, provisions and documents,
for a certain service. In a policy for a definite voyage,
the term "seaworthy" means "sufficient for such a vessel
and voyage." Newport News Shipbuilding & Dry Dock
Co. v. Watson, C.C.A.Va., 19 F.2d 832, 833; The Newport,
C.C.A.Cal., 7 F.2d 452, 453.
SEBASTOMANIA. See Insanity.
SECK. A want of remedy by distress. Litt. § 218.
See Rent. Want of present fruit or profit, as in
the case of the reversion without rent or other
service, except fealty. Co.Litt. 151b, n. 5.
SECOND. This term, as used in law, may denote
either sequence in point of time or inferiority or
postponement in respect to rank, lien, order, or
privilege.
As to second "Cousin," "Deliverance," "Dis-
tress," "Mortgage," and "Surcharge," see those
titles. As to "Secondhand Evidence," see Evidence.
As to "Second of Exchange," see First.
SECOND LIEN. One which takes, rank immedi-
ately after a first lien on the same property and
is next entitled to satisfaction out of the proceeds.
SECONDARY, n. In English practice. An offi-
cer of the courts of king's bench and common
pleas; so called because he was second or next
to the chief officer. In the king's bench he was
called "Master of the King's Bench Office," and
was a deputy of the prothonotary or chief clerk.
1 Archb. Pr. K. B. 11, 12. By St. 7 Wm. IV. and
1 Vict. c. 30, the office of secondary was abolish-
ed.
An officer who is next to the chief officer. Also
an officer of the corporation of London, before
whom inquiries to assess damages are held, as
before sheriffs in counties. Wharton.
SECONDARY, adj. Of a subsequent, subordi-
nate, or inferior kind or class; generally opposed
to "primary."
As to secondary "Conveyances," "Easement,"
"Franchise," "Meaning," "Use," and "Vein," see
those titles.
SECONDARY BOYCOTT. Any combination if its
purpose and effect are to coerce' customers or
patrons, or suppliers through fear of loss or bod-
ily harm, to withhold or withdraw their business
relations from employer who is under attack.
Wright v. Teamsters' Union Local No. 690, 33
Wash. 905, 207 P.2d 662, 665.
SECONDARY EVIDENCE. That which is in-
ferior to primary. Thus, a copy of an instru-
ment, or oral evidence of its contents, is secon-
dary evidence of the instrument and contents.
It is that species of evidence which becomes ad-
missible, as being the next best, when the primary
or p est evidence of the fact in question is lost or
inaccessible; as when a witness details orally
the contents of an instrument which is lost or
destroyed. Williams v. Davis, 56 Tex. 253; Bau-
cum v. George, 65 Ala. 259; Roberts v. Dixon, 50
Kan. 436, 31 P. 1083.
SECONDARY LIABILITY. A liability which does
not attach until or except upon the fulfillment of
certain conditions; as that of a surety, or that of
an accommodation indorser.
SECOND-HAND EVIDENCE. Evidence which
has passed through one or more media before
reaching the witness; hearsay evidence.
SECONDS. In criminal law. Those persons who
assist, direct, and support others engaged in fight-
ing a duel.
SECRET. Concealed; hidden; not made public;
particularly, in law, kept from the knowledge or
notice of persons liable to be affected by the act,
transaction, deed, or other thing spoken of.
Webster defines "secrete" as "to deposit in a place of
hiding, to hide, to conceal" ; and defines the adjective
"secret" as "hidden, concealed" ; and the noun as "some-
thing studiously concealed, a thing kept from general
knowledge, what is not revealed." The Century Diction-
ary defines the verb "secrete" as "to make or keep secret,
hide, conceal, remove from observation, or the knowledge
of others" ; and defines the adjective "secret" as "set or
kept apart, hidden, concealed" ; and the noun as "some-
thing studiously hidden or concealed, a thing kept from
general knowledge, what is not or should not be revealed."
Something known only to one or a few and ,kept from
others. Ferrell v. State, 68 Tex.Cr.R. 487, 152 S. W. 901,
903; Kaumagraph Co. v. Stampagraph Co., 235 N.Y. 1, 138
N.E. 485, 487; Rubner v. Gursky, Sup., 21 N.Y.S.2d 558,
561.
As to secret "Committee," "Equity," "Partner-
ship," and "Trust," see those titles.
SECRET LIEN. A lien reserved by the vendor of
chattels, who has delivered them to the vendee,
to secure the payment of the price, which is con-
cealed from all third persons.
SECRET SERVICE. A branch of government
service concerned with the detection of counter-
feiting and other offenses, civil or political, com-
mitted or threatened by persons who operate in
secrecy. It is under the charge of the treasury
department. Its rules and regulations, promul-
gated by the department, are laws within R. S.
U. S. § 753 (28 U.S.C.A. § 2241), authorizing the
issuance by a federal court of the writ of habeas
corpus in case of a prisoner in custody for an act
done in pursuance of a law of the United States;
U. S. ex rel. Flynn v. Fuellhart, C.C.Pa., 106 F. 911.
SECRETARY. An official scribe, amanuensis, or
writer, or person employed to write letters, dis-
patches, orders, public or private papers, records,
and the like. Mauritz v. Schwind, Tex.Civ.App.,
101 S.W.2d 1085, 1090.
Of a corporation or association, an officer charg-
ed with the direction and management of that
part of the business of the company which is con-
cerned with keeping the records, the official cor-
respondence, with giving and receiving notices,
countersigning documents, etc.
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Also a name given to several of the heads of
executive departments in the government of the
United States; as the "Secretary of War," "Secre-
tary of the Interior," etc. It is also the style of
some of the members of the English cabinet; as
the "Secretary of State for Foreign Affairs."
There are also secretaries of embassies and lega-
tions.
SECRETARY OF DECREES AND INJUNC-
TIONS. An officer of the English court of chan-
cery. The office was abolished by St. 15 & 16 Vict.
c. 87, § 23.
SECRETARY OF EMBASSY. A diplomatic of-
ficer appointed as secretary or assistant to an am-
bassador or minister plenipotentiary.
SECRETARY OF LEGATION. An officer em-
ployed to attend a foreign mission and to perform
certain duties as clerk.
SECRETARY OF STATE. In American law. Ti-
tle of the chief of the executive bureau of the
United States called the "Department of State."
He is a member of the cabinet, and is charged
with the general administration of the interna-
tional and diplomatic affairs of the government.
In many of the state governments there is an ex-
ecutive officer bearing the same title and exercis-
ing important functions. In English law. The
secretaries of state are cabinet ministers attend-
ing the sovereign for the receipt and dispatch of
letters, grants, petitions, and many of the most
important affairs of the kingdom, both foreign and
domestic. There are five principal secretaries,—
one for the home department, another for foreign
affairs, a third for the colonies, a fourth for war,
and a fifth for India. Wharton.
SECRETE. To conceal or hide away. Particular-
ly, to put property out of the reach of creditors,
either by corporally hiding it, or putting the title
in another's name, or otherwise hindering cred-
itors from levying on it or attaching it. Guile v.
McNanny, 14 Minn. 522 (Gil. 391) 100 Am.Dec. 244;
Sturz v. Fischer, 36 N.Y.S. 894, 15 Misc. 410.
SECRETS OF STATE. The production in court
of documents containing secrets of state will not
be compelled if it would be injurious to the public
interest and if the officer in custody of them
claims the privilege. Beatson v. Skene, 5 H. &
N. 838, per Pollock, C. B. This is said to include
confidential communications made by servants of
the Crown to each other. 21 Q. B. D. 512. The
question of their production is to be decided by
the head of the department having custody of
them and not by the court. 5 H. & N. 838; [19001
1 Ch. 347; 13 Low. Can. 33 (where the cases were
fully considered). Appeal of Hartranft, 85 Pa.
433, 27 Am.Rep. 667 (in which Agnew, C. J., vig-
orously dissented), where a ruling in the trial of
Aaron Burr was cited as a precedent. That it is
for the judge to pass on the question, see Wigm.
Evid. § 2376. In 21 Q. B. D. 515, Field, J., said that
if he were sitting, he should consider himself en-
titled to examine the documents privately, and
ascertain the real motive of the refusal to produce.
SECT. As applied to religious bodies. A party or
body of persons who unite in holding certain spe-
cial doctrines or opinions concerning religion,
which distinguish them from others holding the
same general religious belief. Gerhardt v. Heid,
66 N.D. 444, 267 N.W. 127.
SECTA. In old English law. Suit; attendance
at court; the plaintiff's suit or following, i. e.,
the witnesses whom he was required, in the an-
cient practice, to bring with him and produce in
court, for the purpose of confirming his claim,
before the defendant was put to the necessity of
answering the declaration. 3 Bl. Comm. 295, 344;
Bract. fol. 214a. A survival from this proceeding
is seen in the formula still used at the end of
declarations, "and therefore he brings his suit,"
(et inde producit sectam.) This word, in its sec-
ondary meaning, signifies suit in the courts; law-
suit.
SECTA AD CURIAM. A writ that lay against him
who refused to perform his suit either to the
county court or the court-baron. Cowell.
SECTA AD FURNUM. In old English law. Suit
due to a man's public oven or bake-house. 3 Bl.
Comm. 235.
SECTA AD JUSTICIAM FACIENDAM. In old
English law. A service which a man is bound to
perform by his fee.
SECTA AD MOLENDINUM. A writ which lay for
the owner of a mill against the inhabitants of a
place where such mill is situated, for not doing
suit to the plaintiff's mill; that is, for not having
their corn ground at it. Brown.
SECTA AD TORRALE. In old English law. Suit
due to a man's kiln or malthouse. 3 Bl. Comm.
235.
SECTA CURVE. In old English law. Suit of
court; attendance at court. The service, incum-
bent upon feudal tenants, of attending the lord at
his court, both to form a jury when required, and
also to answer for their own actions when com-
plained of.
SECTA EST PUGNA CIVILIS; SICUT ACTORES
ARMANTUR ACTIONIBUS, ET, QUASI, GLAD-
IIS ACCINGUNTUR, ITA REI MUNIUNTUR EX-
CEPTIONIBUS, ET DEFENDUNTUR, QUASI,
CLYPEIS. Hob. 20. A suit is a civil warfare;
for as the plaintiffs are armed with actions, and,
as it were, girded with swords, so the defendants
are fortified with pleas, and are defended, as it
were, by shields.
SECTA FACIENDA PER ILLAM QUPE HABET
ENICIAM PARTEM. A writ to compel the heir,
who has the elder's part of the co-heirs, to per-
form suit and services for all the coparceners.
Reg. Orig. 177.
SECTA QUE SCRIPTO NITITUR A SCRIPTO
VARIARI NON DEBET. Jenk. Cent. 65. A suit
which is based upon a writing ought not to vary
from the writing.
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SECURE
SECTA REGALIS. A suit so called by which all
persons were bound twice in the year to attend
in the sheriff's tourn, in order that they might be
informed of things relating to the public peace.
It was so called because the sheriff's tourn was
the king's leet, and it was held in order that the
people might be bound by oath to bear true al-
legiance to the king. Cowell.
SECTA UNICA TANTUM FACIENDA PRO
PLURIBUS H.AEREDITATIBUS. A writ for an
heir who was distrained by the lord to do more
suits than one, that he should be allowed to do one
suit only in respect of the land of divers heirs
descended to him. Cowell.
SECTARIAN. Denominational; devoted to, pecu-
liar to, pertaining to, or promotive of, the interest
of a sect, or sects; in a broader sense, used to
describe the activities of the followers of one
faith as related to those of adherents of another.
The term is most comprehensive in scope. Ger-
hardt v. Heid, 66 N.D. 444, 267 N.W. 127, 130.
See, also, Sect.
SECTATORES. Suitors of court who, among the
Saxons, gave their judgment or verdict in civil
suits upon the matter of fact and law. 1 Reeve,
Eng. Law, 22.
SECTION. In text-books, codes, statutes, and
other juridical writings, the smallest distinct and
numbered subdivisions are commonly called "sec-
tions," sometimes "articles," and occasionally
"paragraphs." Ex parte Pea River Power Co., 207
Ala. 6, 91 So. 920.
SECTION OF LAND. In American land law. A.
division or parcel of land, on the government sur-
vey, comprising one square mile or 640 acres.
Each "township" (six miles square) is divided by
straight lines into thirty;six sections, and these are
again divided into half-sections and quarter-sec-
tions. South Florida Farms Co. v. Goodno, 84
Fla. 532, 94 So. 672, 675.
The general and proper acceptation of the terms "sec-
tion," "half," and "quarter section," as well as their con-
struction by the general land department, denotes the land
in the sectional and subdivisional lines, and not the exact
quantity which a perfect admeasurement of an unobstruct-
ed surface would declare. Brown v. Hardin, 21 Ark. 327.
SECTIS NON FACIENDIS. A writ which lay for
a dowress, or one in wardship, to be free from
suit of court. Cowell.
SECTORES. Lat. In Roman law. Purchasers
at auction, or public sales.
SECULAR. Not spiritual; not ecclesiastical; re-
lating to affairs of the present world. State v.
Smith, 19 Okl.Cr. 184, 198 P. 879, 881.
SECULAR BUSINESS. As used in Sunday laws,
this term includes all forms of activity in the
business affairs of life, the prosecution of a trade
or employment, and commercial dealings, such as
the making of promissory notes, lending money,
and the like. Lovejoy v. Whipple, 18 Vt. 383, 46
Am.Dec. 157.
Black's Law Dictionary Revised 4th Ed.-96
SECULAR CLERGY. In ecclesiastical law, the
parochial clergy, who perform their ministry in,
seculo (in the world), and who are thus distin-
guished from the monastic or "regular" clergy.
Steph. Comm. 681, note.
SECUNDUM. Lat. In the civil and common law.
According to. Occurring in many phrases of fa-
miliar use, as follows:
SECUNDUM 1EQUUM ET BONUM. According
to what is just and right.
SECUNDUM ALLEGATA ET PROBATA. Ac-
cording to what is alleged and proved; according
to the allegations and proofs. 15 East, 81; Clout-
man v. Tunison, 1 Sumn. 375, F.Cas.No.2,907.
SECUNDUM ARTEM. According to the art,
trade, business, or science.
SECUNDUM BONOS MORES. According to good
usages; according to established custom; reg-
ularly; orderly.
SECUNDUM CONSUETUDINEM MANERII. Ac-
cording to the custom of the manor.
SECUNDUM FORMAM CHART/E. According to
the form of the charter, (deed.)
SECUNDUM FORMAM DONI. According to the
form of the gift or grant. See Formedon.
SECUNDUM FORMAM STATUTI. According to
the form of the statute.
SECUNDUM LEGEM COMMUNEM. According
to the common law.
SECUNDUM NATURAM EST COMMODA CU-
JUSQUE REI EUM SEQUI, QUEM SEQUUNTUR
INCOMMODA. It is according to nature that the
advantages of anything should attach to him to
whom the disadvantages attach. Dig. 50, 17, 10.
SECUNDUM NORMAM LEGIS. According to the
rule of law; by the intendment and rule of law.
SECUNDUM REGULAM. According to the rule;
by rule.
SECUNDUM SUBJECTAM MATERIAM. Accord-
ing to the subject-matter. 1 Bl. Comm. 229. All
agreements must be construed secundum subject-
am materiam if the matter will bear it. 2 Mod.
80, arg.
SECURE. To give security; to assure of pay-
ment, performance, or indemnity; to guaranty
or make certain the payment of a debt or dis-
charge of an obligation. Ex parte Reynolds, 52
Ark. 330, 12 S.W. 570.
One "secures" his creditor by giving him a lien, mort-
gage, pledge, or other security, to be used in case the debt-
or fails to make payment.
Also, not exposed to danger; safe; so strong,
stable or firm as to insure safety. Wenzel & Hen-
och Const. Co. v. Industrial Commission, 202 Wis.
595, 233 N.W. 777, 779.
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SECURED
SECURED CREDITOR. A creditor who holds
some special pecuniary assurance of payment of
his debt, such as a mortgage or lien. In re New
York Title and Mortgage Co., 160 Misc. 67, 289
N.Y.S. 771, 785, 160 Misc. 67.
SECURITAS. In old English law. Security; sur-
ety.
In the civil law. An acquittance or release.
Spelman; Calvin.
SECURITATEM INVENIENDI. An ancient writ,
lying for the sovereign, against any of his sub-
jects, to stay them from going out of the kingdom
to foreign parts; the ground wheieof is that ev-
ery man is bound to serve and defend the com-
monwealth as the crown shall think fit. Fitzh.
Nat. Brev. 115.
SECURITATIS PACIS. In old English law. Se-
curity of the peace. A writ that lay for one who
was threatened with death or bodily harm by
another, against him who so threatened. Reg.
Orig. 88.
SECURITIES. Evidences of debts or of property.
State v. Allen, 216 N.C. 621, 5 S.E.2d 844, 80, 847.
Evidences of obligations to pay money or of rights
to participate in earnings and distribution of cor-
porate, trust, and other property. Oklahoma-Tex-
as Trust v. Securities and Exchange Commission,
C.C.A.10, 100 F.2d 888, 890.
SECURITY. Protection; assurance; indemnifica-
tion. The term is usually applied to an obligation,
pledge, mortgage, deposit, lien, etc., given by a
debtor in order to make sure the payment or per-
formance of his debt, by furnishing the creditor
with a resource to be used in case of failure in
the principal obligation. The name is also some-
times given to one who becomes surety or guar-
antor for another. Bissinger & Co. v. Massachu-
setts Bonding & Ins. Co., 83 Or. 288, 163 P. 592, 593.
Collateral Security
See Collateral.
Real Security
The security of mortgages or other liens or in-
cumbrances upon land. See Merrill v. National
Bank, 19 S.Ct. 360, 173 U.S. 131, 43 L.Ed. 640.
Security for Costs
See Costs.
Security for Good Behavior
A bond or recognizance which the magistrate
exacts from a defendant brought before him on a
charge of disorderly conduct or threatening vio-
lence, conditioned upon his being of good behavior,
or keeping the peace, for a prescribed period, to-
wards all people in general and the complainant in
particular.
Treasury Securities
See that title.
SECURITY COUNCIL. The executive body of the
United Nations, charged with the duty of prevent-
ing or stopping wars by diplomatic, economic or
military action. It is composed of five permanent
members and six additional members elected at
stated intervals.
SECURITY DEPOSIT. Money deposited by ten-
ant with landlord as security for full and faithful
performance by tenant of terms of lease. Bowles
v. Westbrook Defense Homes, D.C.Conn., 61 F.
Supp, 172, 173.
SECURIUS EXPEDIUNTUR NEGOTIA COM-
MISSA PLURIBUS, ET PLUS VIDENT OCULI
QUAM OCULUS. 4 Coke, 46a. Matters intrusted
to several are more securely dispatched, and eyes
see more than eye, [i. e., "two heads are better
than one."]
SECUS. Lat. Otherwise; to the contrary. This
word is used in the books to indicate the converse
of a foregoing proposition, or the rule applicable
to a different state of facts, or an exception to a
rule before stated.
SED NON ALLOCATUR. Lat. But it is not al-
lowed. A phrase used in the old reports, to sig-
nify that the court disagreed with the arguments
of counsel.
Counter Security
See Counter.
Marshaling Securities
See Marshaling.
Personal Security
(1) A person's legal and uninterrupted enjoy-
ment of his life, his limbs, his body, his health, and
his reputation. 1 Bl. Comm. 129. Sanderson v.
Hunt, 76 S.W. 179, 25 Ky.L.Rep. 626. (2) Evi-
dences of debt which bind the person of the debtor,
not real property. Merrill v. National Bank, 19 S.
Ct. 360, 173 U.S. 131, 43 L.Ed. 640.
Public Securities
Bonds, notes, certificates of indebtedness, and
other negotiable or transferable instruments evi-
dencing the public debt of a state or government.
SED PER CURIAM. Lat. But by the court. This
phrase is used in the reports to introduce a state-
ment made by the court, on the argument, at var-
iance with the propositions advanced by counsel,
or the opinion of the whole court, where that is
different from the opinion of a single judge imme-
diately before quoted.
SED QUIERE. Lat. But inquire; examine this
further. A remark indicating, briefly, that the
particular statement or rule laid down is doubted
or challenged in respect to its correctness.
SED VIDE. Lat. But see. This remark, fol-
lowed by a citation, directs the reader's attention
to an authority or a statement which conflicts with
or contradicts the statement or principle laid
down.
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SEISED
SEDATO ANIMO. Lat. With settled purpose.
5 Mod. 291.
SEDE PLENA. Lat. The see being filled. A
phrase used when a bishop's see is not vacant.
SEDENTE CURIA. Lat. The court sitting; dur-
ing the sitting of the court.
SEDERUNT, ACTS OF. In Scotch law. Certain
ancient ordinances of the court of session, confer-
ring upon the courts power to establish general
rules of practice. Bell.
SEDES. Lat. A see; the dignity of a bishop. 3
Steph. Comm. 65.
SEDGE FLAT. A tract of land below high-water
mark. Church v. Meeker, 34 Conn. 421.
SEDITION. An insurrectionary movement tend-
ing towards treason, but wanting an overt act;
attempts made by meetings or speeches, or by
publications, to disturb the tranquillity of the
state. Arizona Pub. Co. v. Harris, 181 P. 373, 375,
20 Ariz. 446.
The distinction between "sedition" and "treason" con-
sists in this : that though the ultimate object of sedi-
tion is a violation of the public peace, or at least such a
course of measures as evidently engenders it, yet it does
not aim at direct a'nd open violence against the laws or
the subversion of the constitution. Alis.Crim.Law, 580.
In Scotch law. The raising commotions or dis-
turbances in the state. It is a revolt against legit-
imate authority. Ersk. Inst. 4, 4, 14.
In English law. The offense of publishing, ver-
bally or otherwise, any words or document with
the intention of exciting disaffection, hatred, or
contempt against the sovereign, or the govern-
ment and constitution of the kingdom, or either
house of parliament, or the administration of jus-
tice, or of exciting his majesty's subjects to at-
tempt, otherwise than by lawful means, the alter-
ation of any matter in church or state, or of ex-
citing feelings of ill will and hostility between dif-
ferent classes of his majesty's subjects. Sweet.
State v. Shepherd, 177 Mo. 205, 76 S.W. 79, 99 Am.
St.Rep. 624.
SEDITIOUS LIBEL. In English law. A written
or printed document containing seditious matter
or published with a seditious intention, the latter
term being defined as "an intention to bring into
hatred or contempt, or to excite disaffection
against, the king or the government and constitu-
tion as by law established, or either house of par-
liament, or the administration of justice, or to ex-
cite British subjects to attempt otherwise than
by lawful means the alteration of any matter in
church or state by law established, or to promote
feelings of ill will and hostility between different
classes." Dicey, Const. (4th Ed.) 231, 232. See
Black, Const. Law (3d Ed.) p. 654.
SEDUCE. To induce to surrender chastity. State
v. Howard, 264 Mo. 386, 175 S.W. 58, 59. To lead
away or astray. Mosley v. Lynn, 172 Ga. 193, 157
S.E. 450, 452. See, also, Seduction.
SEDUCING TO LEAVE SERVICE. An injury
for which a master may have an action on the
case.
SEDUCTION. The act of seducing. Act of man
enticing woman to have unlawful intercourse with
him by means of persuasion, solicitation, promis-
es, bribes, or other means without employment of
force. Van De Velde v. Colle, 8 N.J.Misc. 782, 152
A. 645, 646.
At common law seduction is recognized merely as creat-
ing a civil liability, and actions for seduction are based
solely upon relation of master and servant and no one but
those entitled to services can maintain action. Under stat-
utory provisions in many states the woman is now permit-
ted to recover for her own seduction.
In many states seduction has been made a criminal of-
fense. Previous chaste character of the woman at time
of seduction is essential under some statutes.
SEE. The circuit of a bishop's jurisdiction; or his
office or dignity, as being bishop of a given dio-
cese.
SEEN. This word, when written by the drawee on
a bill of exchange, amounts to an acceptance by
the law merchant. Barnet v. Smith, 30 N.H. 256,
64 Am.Dec. 290; Peterson v. Hubbard, 28 Mich.
197.
SEIGNIOR, in its general signification, means
"lord," but in law it is particularly applied to the
lord of a fee or of a manor; and the fee, do-
minions, or manor of a seignior is thence termed
a "seigniory," i. e., a lordship. He who is a lord,
but of no manor, and therefore unable to keep a
court, is termed a "seignior in gross." Kitch.
206; Cowell.
Seignior or Seigneur. Among the feudists, this name
signified lord of the fee. Fitzh.N.B. 23. Seigneur is still
used in French Canada. The most extended signification
of this word includes not only a lord or peer of parliament,
but is applied to the owner or proprietor of a thing, hence
the owner of a hawk, and the master of a fishing vessel, is
called a seigneur. 37 Edw. III, c. 19; Barrington, Stat.
258.
SEIGNIORAGE. A royalty or prerogative of the
sovereign, whereby an allowance of gold and sil-
ver, brought in the mass to be exchanged for coin,
is claimed. Cowell. Mintage; the charge for
coining bullion into money at the mint.
SEIGNIORESS. A female superior.
SEIGNIORY. In English law. A lordship; a
manor. The rights of a lord, as such, in lands.
Kavanaugh v. Cohoes Power & Light Corpora-
tion, 187 N.Y.S. 216, 231, 114 Misc.Rep. 590.
SEISED IN DEMESNE AS OF FEE. This is the
strict technical expression used to describe the
ownership in "an estate in fee-simple in posses-
sion in a corporeal hereditament." The word
"seised" is used to express the "seisin" or owner's
possession of a freehold property; the phrase "in
demesne," or "in his demesne," (in dominico suo)
signifies that he is seised as owner of the land
itself, and not merely of the seigniory or services;
and the concluding words, "as of fee," import that
he is seised of an estate of inheritance in fee-
simple. Where the subject is incorporeal, or the
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SELSI
estate expectant on a precedent freehold, the
words "in his demesne" are omitted. (Co. Litt.
17a; Fleta, 1. 5, c. 5, § 18; Bract. 1. 4, tr. 5, c. 2,
§ 2.) Brown.
SEISI. In old English law. Seised; possessed.
SEISIN. The completion of the feudal investiture,
by which the tenant was admitted into the feud,
and performed the rights of homage and fealty.
Stearns, Real Act. 2. Possession with an intent
on the part of him who holds it to claim a free-
hold interest. Deshong v. Deshong, 186 Pa. 227,
40 A. 402, 65 Am.St.Rep. 855. Right to immediate
possession according to the nature of the estate.
Williams v. Swango, 365 Ill. 549, 7 N.E.2d 306, 309.
Upon the introduction of the feudal law into England,
the word "seisin" was applied only to the possession of
an estate of freehold, in contradistinction to that precarious
kind of possession by which tenants in villeinage held their
lands, which was considered to be the possession of those
in whom the freehold continued. The word still retains
its original signification, being applied exclusively to the
possession of land of a freehold tenure, it being inaccurate
to use the word as expressive of the possession of lease-
holds or terms of years, or even of copyholds. Brown.
Under our law, the word "seisin" has no accurately de-
fined technical meaning. At common law, it imported a
feudal investiture of title by actual possession. With us
it has the force of possession under some legal title or
right to hold. This possession, so far as possession alone
is involved, may be shown by parol; but, if it is intended
to show possession under a legal title, then the title must
be shown by proper conveyance for that purpose. Ford
v. Garner, 49 Ala. 603.
Every person in whom a seisin is required by any of the
provisions of this chapter shall be deemed to have been
seised, if he may have had any right, title, or interest in
the inheritance. G.S.N.C. §1 29-1, rule 12.
Actual Seisin
Possession of the freehold by the pedis positio
of one's self or one's tenant or agent, or by con-
struction of law, as in the case of a state grant
or a conveyance under the statutes of uses, or
(probably) of grant or devise where there is no
actual adverse possession; it means actual pos-
session as distinguished from constructive posses-
sion or possession in law. Carr v. Anderson, 6
App.Div. 6, 39 N.Y.S. 746.
Constructive Seisin
Seisin in law where there is no seisin in fact;
as where the state issues a patent to a person who
never takes any sort of possession of the lands
granted, he has constructive seisin of all the land
in his grant, though another person is at the time
in actual possession. Garrett v. Ramsey, 26 W.Va.
351.
Covenant of Seisin
See Covenant.
Equitable Seisin
A seisin which is analogous to legal seisin; that
is, seisin of an equitable estate in land. Thus a
mortgagor is said to have equitable seisin of the
land by receipt of the rents. Sweet.
Livery of Seisin
Delivery of possession; called, by the feudists,
"investiture."
Primer Seisin
In English law. The right which the king had,
when any of his tenants died seised of a knight's
fee, to receive of the heir, provided he were of full
age, one whole year's profits of the lands, if they
were in immediate possession; and half a year's
profits, if the lands were in reversion, expectant
on an estate for life. 2 Bl. Comm. 66.
Quasi Seisin
A, term applied to the possession which a copy-
holder has of the land to which he has been ad-
mitted. The freehold in copyhold lands being
in the lord, the copyholder cannot have seisin of
them in the proper sense of the word, but he has
a customary or quasi seisin analogous to that of
a freeholder. Williams, Seis. 126; Sweet.
Seisin in Deed
Actual possession of the freehold; the same as
actual seisin or seisin in fact. Roetzel v. Beal, 196
Ark. 5, 116 S.W.2d 591, 593.
Seisin in Fact
Possession with intent on the part of him who
holds it to claim a freehold interest; the same as
actual seisin. Seim v. O'Grady, 42 W.Va. 77, 24
S.E. 994; Savage v. Savage, 19 Or. 112, 23 P. 890,
20 Am.St.Rep. 795.
Seisin in Law
A right of immediate possession according to
the nature of the estate. Martin v. Trail, 142 Mo.
85, 43 S.W. 655; Savage v. Savage, 19 Or. 112, 23
P. 890, 20 Am.St.Rep. 795. As the old doctrine of
corporeal investiture is no longer in force, the de-
livery of a deed gives seisin in law. Watkins v.
Nugen, 118 Ga. 372, 45 S.E. 262.
Seisin Ox
In Scotch law. A perquisite formerly due to
the sheriff when he gave possession to an heir
holding crown lands. It was long since converted
into a payment in money, proportioned to the
value of the estate. Bell.
SEISINA. L. Lat. Seisin.
SEISINA FACIT STIPITEM. Seisin makes the
stock. 2 BL Comm. 209; Broom, Max. 525, 528.
SEISINA HABENDA. A writ for delivery of
seisin to the lord, of lands and tenements, after
the sovereign, in right of his prerogative, had had
the year, day, and waste on a felony committed,
etc. Reg. Orig. 165.
SEIZE. To put in possession, invest with fee sim-
ple, be seized of or in, be legal possessor of, or be
holder in fee simple. Hanley v. Stewart, 155 Pa.
Super. 535, 39 A.2d 323, 326.
SEIZIN. See Seisin.
SEIZING OF HERIOTS. Taking the best beast,
etc., where an heriot is due, on the death of the
tenant. 2 Bl. Comm. 422.
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SELLER
SEIZURE. To take possession of forcibly, to
grasp, to snatch, or to put in possession. Hardie
v. State, 140 Tex.Cr.R. 368, 144 S.W.2d 571, 575.
Law of Copyholds
Seizure is where the lord of copyhold lands
takes possession of them in default of a tenant.
It is either seizure quousque or absolute seizure.
Practice
The act performed by an officer of the law, un-
der the authority and exigence of a writ, in taking
into the custody of the law the property, real or
personal, of a person against whom the judgment
of a competent court has passed, condemning
him to pay a certain sum of money, in order that
such property may be sold, by authority and due
course of law, to satisfy the judgment. Or the act
of taking possession of goods in consequence of
a violation of public law. Carey v. Insurance Co.,
54 N.W. 18, 84 Wis. 80, 20 L.R.A. 267, 36 Am.St.
Rep. 907.
Seizure, even though hostile, is not necessarily capture,
though such is its usual and probable result. The ultimate
act or adjudication of the state, by which the seizure has
been made, assigns the proper and conclusive quality and
denomination to the original proceeding. A condemnation
asserts a capture ab inittio; an award of restitution pro-
nounces upon the act as having been not a valid act of
capture, but an act of temporary seizure only. Appleton
v. Crowninshield, 3 Mass. 443.
SEIZURE QUOUSQUE. Where the heir on the
death of his ancestor postpones claiming admit-
tance from the lord, the lord may, after a reason-
able time, and after due proclamation at three suc-
cessive courts, seize the tenement into his hands
quousque,  e. until an heir appears and claims
admittance; Jenks, Mod. Land L. 208.
SELDA. A shop, shed, or stall in a market; a
wood of sallows or willows; also a sawpit. Co.
Litt. 4.
SELECT. To take by preference from among
others; to pick out; to cull. Clarke v. Common-
wealth, 159 Va. 908, 166 S.E. 541, 543.
SELECT COUNCIL. The name given, in some
states, to the upper house or branch of the coun-
cil of a city.
SELECTI JUDICES. Lat. In Roman law. Judg-
es who were selected very much like our juries.
They were returned by the praetor, drawn by lot,
subject to be challenged, and sworn. 3 Bl. Comm.
366.
SELECTMEN. The name of certain municipal
officers, in the New England states, elected by the
towns to transact their general public business,
and possessing certain executive powers. Felch
v. Weare, 69 N.H. 617, 45 A. 591.
SELF-DEALING. Basically relates to transac.
tions wherein a trustee, acting for himself and
also as "trustee," a relation which demands strict
fidelity to others, seeks to consummate a deal
wherein self-interest is opposed to duty. Cestui
que trust has in such case the election to affirm
or disaffirm, unless countervailing equities have
intervened. First Nat. Bank v. Basham, 238 Ala.
500, 191 So. 873, 876, 877, 878, 125 A.L.R. 656; In
re Binder's Estate, 137 Ohio St. 26, 27 N.E.2d 939,
947, 129 A.L.R. 130.
SELF-DEFENSE. The protection of one's per-
son or property against some injury attempted by
another. The right of such protection. An ex-
cuse for the use of force in resisting an attack
on the person, and especially for killing an assail-
ant. Whart. Crim. Law, §§ 1019, 1026. The right
of a man to repel force by force even to the tak-
ing of life in defense of his person, property or
habitation, or of a member of his family, against
any one who manifests, intends, attempts or en-
deavors by violence or surprise, to commit a
forcible felony. State v. Patterson, 45 Vt. 308, 12
Am.Rep. 200; Logue v. Com., 38 Pa. 265, 80 Am.
Dec. 481. Essential elements of "self-defense"
are that defendant does not provoke difficulty
and that there must be impending peril without
convenient or reasonable mode of escape. Hayes
v. State, 225 Ala. 253, 142 So. 675, 677. The law
of "self-defense" justifies an act done in the rea-
sonable belief of immediate danger, and, if an
injury was done by defendant in justifiable self-
defense, he can never be punished criminally nor
held responsible for damages in a civil action.
Baltimore Transit Co. v. Faulkner, 179 Md. 598,
20 A.2d 485, 487.
Accused is not justified in pursuing and killing attacker
when danger of death or serious bodily injury has passed.
People v. Keys, 62 Cal.App.2d 903, 145 P.2d 589, 596.
SELF-EXECUTING CONSTITUTIONAL PRO-
VISION. Immediately effective without the nec-
essity of ancillary legislation. Cleary v. Kincaid,
23 Idaho, 789, 131 P. 1117, 1118; Stange v. City
of Cleveland, 94 Ohio St. 377, 114 N.E. 261, 262.
Constitutional provision is "self-executing" if it supplies
sufficient rule by which right given may be enjoyed or duty
imposed enforced; constitutional provision is not "self-
executing" when it merely indicates principles without lay-
ing down- rules giving them force of law. Zachary v. City
of Wagoner, 146 Okl. 268, 292 P. 345, 348; State v. Per-
rault, 34 N.M. 438, 283 P. 902, 903.
SELF-EXECUTING JUDGMENTS. Those re-
quiring no affirmative action of the court or ac-
tion under process issued by the court to execute
them. /Etna Casualty & Surety Co. of Hartford,
Conn., v. Board of Sup'rs of Warren County, 160
Va. 11, 168 S.E. 617, 629.
SELF-MURDER, SELF-DESTRUCTION, orSELF-SLAUGHTER. See Felo de Se; Suicide.
SELION OF LAND. In old English law. A ridge
of ground rising between two furrows, containing
no certain quantity, but sometimes more and
sometimes less. Termes de la Ley.
SELL. To dispose of by sale (q. v.).
SELLER. One who sells anything; the party who
transfers property in the contract of sale. The
correlative is "buyer," or "purchaser." Though
these terms are not inapplicable to the persons
concerned in a transfer of real estate, it is more
customary to use "vendor" and "purchaser," or
"vendee" in that case.
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SELLETTE
SELLETTE (Fr.). A kind of woollen seat set up
in criminal courts in France, on which they placed
the accused to undergo his last interrogatory when
the conclusions of the counsel for the prosecution
went against him with regard to capital punish-
ment or at least penal corporal punishment. It
implied moral degradation and was therefore lim-
ited to persons accused of crimes entailing cor-
poral punishment. Ord. Cr. de 1670, Tibre IV,
art. 21. Abolished by Edict of May 1, 1788. Call-
ed a "stool of repentance."
SELLING PUBLIC OFFICES. Buying or selling
any office in the gift of the crown, or making any
ivegotiation relating thereto, was deemed a mis-
demeanor under stats. 5 & 6 Edw. VI. c. 16, and 49
Geo. III. c. 126, 2 Steph. Com., 11th ed. 631.
SELLING STOCKS SHORT. Selling stocks cus-
tomer does not possess, customer borrowing the
number of shares he has sold from some third
person to deliver to his vendee expecting to be able
to buy the stocks later at a lower figure and return
them to the person from whom he borrowed them.
Henderson v. Usher, 125 Fla. 709, 170 So. 846, 851.
SEMAYNE'S CASE. This case decided, in 1604,
that "every man's house [meaning his dwelling-
house only] is his castle," and that an officer
executing civil process may not break open outer
doors in general, but only inner doors, but that
(after request made) he may break open even
outer doors to find goods of another wrongfully
in the house. Brown. It is reported in 5 Coke, 91.
SEMBLE. L. Fr. It seems; it would appear.
This expression is often used in the reports to pre-
face a statement by the court upon a point of law
which is not directly decided, when such state-
ment is intended as an intimation of what the de-
cision would be if the point were necessary to be
passed upon. It is also used to introduce a sugges-
tion by the reporter, or his understanding of the
point decided when it is not free from obscurity.
SEMEL CIVIS SEMPER CIVIS. Once a citizen
always a citizen. Tray. Lat. Max. 555.
SEMEL MALUS SEMPER PRIESUMITUR ESSE
MALUS IN EODEM GENERE. Whoever is once
bad is presumed to be so always in the same kind
of affairs. Cro. Car. 317.
SEMESTRIA. Lat. In the civil law. The col-
lected decisions of the emperors in their councils.
SEMI-MATRIMONIUM. Lat. In Roman law.
Half-marriage. Concubinage was so called. Tayl.
Civil Law, 273.
SEMI-PLENA PROBATIO. Lat. In the civil
law. Half-full proof; half-proof. 3 Bl. Comm. 370.
See Half-Proof.
SEMINARIUM. Lat. In the civil law. A nursery
of trees. Dig. 7, 1, 9, 6.
SEMINARY. A place of training, an institution
of education, a school, academy, college, or uni-
versity in which young persons are instructed in
the several branches of learning which may qual-
ify them for their future employment, and the
origin of the word seems to imply a place where
the seeds of education are sown and implanted.
State v. Northwestern College of Speech Arts,
193 Minn. 123, 258 N.W. 1.
The word is said to have acquired no fixed and definite
legal meaning. Maddox v. Adair, Tex.Civ.App., 66 S.W.
811; Warde v. Manchester, 56 N.H. 509, 22 Am. Rep. 504.
SEMINAUFRAGIUM. Lat. In maritime law.
Half-shipwreck, as where goods are cast over-
board in a storm; also where a ship has been so
much damaged that her repair costs more than
her worth. Wharton.
SEMITA. In old English law. A path. Fleta,
1. 2, c. 52, § 20.
SEMPER. Lat. Always. A word which intro-
duces several Latin maxims, of which some are
also used without this prefix.
SEMPER IN DUBIIS BENIGNIORA PR1EFER-
ENDA SUNT. In doubtful cases, the more favor-
able constructions are always to be preferred.
Dig. 50, 17, 56.
SEMPER IN DUBIIS ID AGENDUM EST, UT
QUAM TUTISSIMO LOCO RES SIT BONA FIDE
CONTRACTA, NISI QUUM APERTE CONTRA
LEGES SCRIPTUM EST. In doubtful cases, such
a course should always be taken that a thing con-
tracted bona fide should be in the safest condi-
tion, unless when it has been openly made against
law. Dig. 34, 5, 21.
SEMPER IN OBSCURIS, QUOD MINIMUM EST
SEQUIMUR. In obscure constructions we al-
ways apply that which is the least obscure. Dig.
50, 17, 9; Broom, Max. 687n.
SEMPER IN STIPULATIONIBUS, ET IN CET-
ERIS CONTRACTIBUS, ID SEQUIMUR QUOD
ACTUM EST. In stipulations and in other con-
tracts we follow that which was done, [we are
governed by the actual state of the facts.] Dig. 50,
17, 34.
SEMPER ITA FIAT RELATIO UT VALEAT DIS-
POSITIO. Reference [of a disposition in a will]
should always be so made that the disposition
may have effect. 6 Coke, 76b.
SEMPER NECESSITAS PROBANDI INCUMBIT
EI QUI AGIT. The claimant is always bound to
prove, [the burden of proof lies on the actor.]
SEMPER PARATUS. Lat. Always ready. The
name of a plea by which the defendant alleges
that he has always been ready to perform what is
demanded of him. 3 Bl. Comm. 303.
SEMPER PRIESUMITUR PRO LEGITIMA-
TIONE PUERORUM. The presumption always is
in favor of the legitimacy of children. 5 Coke,
98b; Co. Litt. 126a.
SEMPER PRIESUNIITUR PRO MATRIMONIO.
The presumption is always in favor of the val-
idity of a marriage.
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SENEUCIA
SEMPER PRIESUMITUR PRO NEGANTE. The
presumption is always in favor of the one who de-
nies. 10 Clark & F. 534; 3 El. & Bl. 723.
SEMPER PRZESUMITUR PRO SENTENTIA.
The presumption always is in favor of a sentence.
3 Bulst. 42; Branch, Princ.
SEMPER QUI NON PROHIBET PRO SE INTER-
VENIRE, MANDARE CREDITUR. He who does
not prohibit the intervention of another in his be-
half is supposed to authorize it. 2 Kent, Comm.
616; Dig. 14, 6, 16; Dig. 46, 3, 12, 4.
SEMPER SEXUS MASCULINUS ETIAM FEM-
ININUM SEXUM CONTINET. The masculine
sex always includes the feminine. Dig. 32, 62.
SEMPER SPECIALIA GENERALIBUS INSUNT.
Specials are always included in generals. Dig. 50,
17, 147.
SEN. This is said to be an ancient word, which
signified "justice." Co. Litt. 61a.
SENAGE. Money paid for synodals.
SENATE.
American Law. The name of the upper chamb-
er, or less numerous branch, of the congress of
the United States. Also the style of a similar
body in the legislatures of several of the states.
Roman Law. The great administrative council
of the Roman commonwealth.
SENATOR.
American Law. One who is a member of a sen-
ate, either of the United States or of a state.
Old English law. A member of the royal coun-
cil; a king's councillor.
Roman law. A member of the senatus.
SENATORES SUNT PARTES CORPORIS REG-
IS. Senators are part of the body of the king.
Staundef. 72, E.; 4 Inst. 53, in marg.
SENATORS OF THE COLLEGE OF JUSTICE.
The judges of the court of session in Scotland
are called "Senators of the College of Justice."
SENATUS. Lat. In Roman law. The senate;
the great national council of tile Roman people.
The place where the senate met. Calvin.
SENATUS CONSULTUM. In Roman law. A de-
cision or decree of the Roman senate, having the
force of law, made without the concurrence of the
people. These enactments began to take the place•
of laws enacted by popular vote, when the com-
mons had grown so great in number that they
could no longer be assembled for legislative pur-
poses. Mackeld. Rom. Law, § 33; Hunter Rom.
Law, )(Nil; Inst. 1, 2, 5.
SENATUS CONSULTUM MARCIANUM. A de-
cree of the senate, in relation to the celebration
of the Bacchanalian mysteries, enacted in the con-
sulate of Q. Marcius and S. Postumus.
SENATUS CONSULTUM ORFICIANUM. An en-
actment of the senate (Orficius being one of the
consuls and Marcus Antoninus emperor) or ad-
mitting both sons and daughters to the succession
of a mother dying intestate. Inst. 3, 4, pr.
SENATUS CONSULTUM PEGASIANUM. The
The Pegasian decree of the senate. A decree en-
acted in the consulship of Pegasus and Pusio, in
the reign of Vespasian, by which an heir, who was
requested to restore an inheritance, was allowed
to retain one-fourth of it for himself. Inst. 2, 23,
5.
SENATUS CONSULTUM TREBELLIANU1%I. A
decree of the senate (named from Trebellius, in
whose consulate it was enacted) by which it was
provided that, if an inheritance was restored under
a trust, all actions which, by the civil law, might
be brought by or against the heir should be given
to and against him to whom the inheritance was
restored. Inst. 2, 23, 4; Dig. 36, 1.
SENATUS CONSULTUM ULTIM1E NESSITA-
TIS. A decree of the senate of the last necessity.
The name given to the decree which usually pre-
ceded the nomination of a dictator. 1 Bl. Comm.
136.
SENATUS CONSULTUM VELLEIANUM. The
Velleian decree of the senate. A decree enacted
'in the consulship of Velleius, by which married
women were prohibited from making contracts.
Story, Conti. Laws, § 425.
SENATUS DECRETA. Lat. In the civil law.
Decisions of the senate. Private acts concerning
particular persons merely.
SENDA. In Spanish law. A path; the right of a
path. The right of foot or horse path. White,
New Recop. b. 2, tit 6, § 1.
SENECTUS. Lat. Old age. In the Roman law,
the period of senectus, which relieved one from
the charge of public office, was officially reckoned
as beginning with the completion of the seven-
tieth year. Mackeld. Rom. Law, § 138.
SENESCALLUS. In old English law. A sen-
eschal; a steward; the steward of a manor.
Fleta, 1. 2, c. 72.
SENESCHAL. In old European law. A title of
office and dignity, derived from the middle ages,
answering to that of steward or high steward in.
England. Seneschals were originally the lieuten-
ants of the dukes and other great feudatories of
the kingdom, and sometimes had the dispensing of
justice and high military commands.
SENESCHALLO ET MARESHALLO QUOD NON
TENEAT PLACITA DE LIBERO TENEMENT°.
A writ addressed to the steward and marshal of
England, inhibiting them to take cognizance of an
action in their court that concerns freehold. Reg.
Orig. 185. Abolished.
SENEUCIA. In old records. Widowhood. Cow-
ell.
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SENILE
SENILE DEMENTIA. That peculiar decay of the
mental faculties which occurs in extreme old age,
and in many cases much earlier, whereby the per-
son is reduced to second childhood, and becomes
sometimes wholly incompetent to enter into any
binding contract, or even to execute a will. It is
the recurrence of second childhood by mere de-
cay. Byrne v. Fulkerson, 254 Mo. 97, 162 S.W.
171, 178; Guarantee Trust & Safe Deposit Co. v.
Waller, 240 Pa. 575, 88 A. 13, 15. See Insanity.
SENILITY. Quality of being senile, an . infirmity
of old age, trouble proceeding from old age. Kal-
lusch v. Kavli, 185 Minn. 3, 240 N.W. 108, 110.
Feebleness of body and mind incident to old age;
and an incapacity to contract arising from the im-
pairment of the intellectual faculties by old age.
Equitable Life Assur, Soc. of U. S. v. Garrett, 26
Ala.App. 395, 160 So. 776, 777.
SENIOR. The elder. An addition to the name
of the elder of two persons in the same family
having the same name.
SENIOR COUNSEL. Of two or more counsel re-
tained on the same side of a cause, he is the "sen-
ior" who is the elder, or more important in rank
or estimation, or who is charged with the more
difficult or important parts of the management of
the case.
SENIOR JUDGE. Of several judges composing
a court, the one who holds the oldest commission,
or who has served the longest time under his
present commission.
SENIORES. In old English law. Seniors; an-.
dents; elders. A term applied to the great men of
the realm. Spelman.
SENIORITY. Represents in the highest degree
the right to work, and by seniority the oldest man
in point of service, ability and fitness for the job
being sufficient, is given choice of jobs, is first
promoted within range of jobs subject to seniority,
and is the last laid off, proceeding so on down the
line to the youngest in point of service. Dooley
v. Lehigh Valley R. Co. of Pennsylvania, 130 N.J.
Eq. 75, 21 A.2d 334, 338, 339.
SENORIO. In Spanish law. Dominion or prop-
erty.
SENSUS. Lat. Sense, meaning, signification.
Malo sensu, in an evil or derogatory sense. Mi-
tiori sensu, in a milder, less severe, or less string-
ent sense. Sensu honesto, in an honest sense; to
interpret words sensu honest() is to take them so
as not to impute impropriety to the persons con-
cerned.
SENSUS VERBORUM EST ANIMA LEGIS. 5
Coke, 2. The meaning of the words is the spirit
of the law.
SENSUS VERBORUM EST DUPLEX,—MITIS ET
ASPER; ET VERBA SEMPER ACCIPIENDA
SUNT IN MITIORI SENSU. 4 Coke, 13. The
meaning of words is twofold,—mild and harsh;
and words are always to be received in their mild-
er sense.
SENSUS VERBORUM EX CAUSA DICENDI AC.
CIPIENDUS EST; ET SERMONES SEMPER AC-
CIPIENDI SUNT SECUNDUM SUBJECTAM MA-
TERIAM. The sense of words is to be taken from
the occasion of speaking them; and discourses
are always to be interpreted according to the
subject-matter. 4 Coke, 13b. See 2 Kent, Comm.
555.
SENTENCE. The judgment formally pronounced
by the court or judge upon the defendant after
his conviction in a criminal prosecution, awarding
the punishment to be inflicted. Judgment form-
ally declaring to accused legal consequences of
guilt which he has confessed or of which he has
been convicted. The word is properly confined to
this meaning. In civil cases, the terms "judg-
ment," "decision," "award," "finding," etc., are
used. Archer v. Snook, D.C.Ga., 10 F.2d 567, 569;
Hart v. Norman, 92 Misc. 185; 155 N.Y.S 238, 240;
State v. Woodbury, 133 Kan. 1, 298 P. 794.
Cumulative sentences.  Separate sentences
(each additional to the others) imposed upon a
defendant who has been convicted upon an indict-
ment containing several counts, each of such
counts charging a distinct offense, or who is under
conviction at the same time for several distinct
offenses; one of such sentences being made to be-
gin at the expiration of another. Carter v. Mc-
Claughry, 22 S.Ct. 181, 183 U.S. 365, 46 L.Ed. 236.
Ecclesiastical sentence. In ecclesiastical pro-
cedure, analogous to "judgment" (q. v.) in an
ordinary action. A" definite sentence is one which
puts an end to the suit, and regards the principal
matter in question. An interlocutory sentence de-
termines only some incidental matter in the pro-
ceedings. Phillim. Ecc. Law, 1260.
Excessive sentence. See Excessive Sentence.
Final sentence. One which puts an end to a
case. Distinguished from interlocutory.
Indeterminate sentence. A form of sentence to
imprisonment upon conviction of crime, now au-
thorized by statute in several states, which, instead
of fixing rigidly the duration of the imprisonment,
declares that it shall be for a period "not less
than" so many years "nor more than" so many
years, or not less ,than the minimum period pre-
scribed by statute as the punishment for the par-
ticular offense nor more than the maximum per-
iod, the exact length of the term being afterwards
fixed, within the limits assigned by the court or
the statute, by an executive authority, (the gov-
ernor, board of pardons, etc.,) on consideration of
the previous record of the convict, his behavior
while in prison or while out on parole, the appar-
ent prospect of reformation and other such con-
siderations.
Interlocutory sentence. In the civil law. A sen-
tence on some indirect question arising from the
principal cause. Hallifax, Civil Law, b. 3, ch. 9, no.
40.
Sentence of death recorded. In English prac-
tice. The recording of a sentence of death, not
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SEPARATE
actually pronounced, on the understanding that it
will not be executed. Such a record has the same
effect as if the judgment had been pronounced
and the offender reprieved by the court. Mozley
& Whitley. The practice is now disused.
Simple sentence. (In rhetoric.) See Simple.
Suspension of sentence. This term may mean
either a withholding or postponing the sentencing
of a prisoner after the conviction, or a postpon-
ing of the execution of the sentence after it has
been pronounced. In the latter case, it may, for
reasons addressing themselves to the discretion
of the court, be indefinite as to time, or during
the good behavior of the prisoner. See People v.
Webster, 14 Misc. 617, 36 N.Y.S. 745; In re Buch-
anan, 146 N.Y. 264, 40 N.E. 883.
SENTENCES TO RUN CONCURRENTLY. Mere-
ly means that accused is given privilege of serving
each day a portion of each sentence. Nishimoto
v. Nagle, C.C.A.Cal., 44 F.2d 304, 305.
SENTENTIA. Lat. In the civil law. (1) Sense;
import; as distinguished from mere words (2)
The deliberate expression of one's will or inten-
tion. (3) The sentence of a judge or court.
SENTENTIA A NON JUDICE LATA NEMINI
DEBET NOCERE. A sentence pronounced by one
who is not a judge should not harm any one.
Fleta, 1. 6, c. 6, § 7.
SENTENTIA CONTRA, MATRIMONIUM NUM-
QUAM TRANSIT IN REM JUDICATAM. 7 Coke,
43. A sentence against marriage never becomes
a matter finally adjudged, e., res judicata.
SENTENTIA FACIT JUS, ET LEGIS INTER-
PRETATIO LEGIS VIM OBTINET. Ellesm. Post.,
N. 55. Judgment creates right, and the interpre-
tation of the law has the force of law.
SENTENTIA FACIT JUS, ET RES JUDICATA
PRO VERITATE ACCIPITUR. Ellesm. Post. N.
55. Judgment creates right, and what is adjudi-
cated is taken for truth.
SENTENTIA INTERLOCUTORIA REVOCARI
POTEST, DEFINITIVA NON POTEST. Bac.
Max. 20. An interlocutory judgment may be re-
called, but not a final.
SENTENTIA NON FERTUR DE REBUS NON
LIQUIDIS. Sentence is not given upon matters
that are not clear. Jenk. Cent. p. 7, case 9.
SEPARABLE. Capable of being separated, dis-
joined, or divided. In re Babcock, 27 C.C.P.A.
1097, 110 F.2d 665, 667.
SEPARABLE CONTROVERSY. As to removal of
causes from state courts to federal courts, this
phrase means a separate and distinct cause of
action existing in the suit, on which a separate and
distinct suit might properly have been brought
and complete relief afforded as to such cause of
action; or the case must be one capable of sep-
aration into parts, so that, in one of the parts, a
controversy will be presented, wholly between cit-
izens of different states, which can be fully de-
termined without the presence of any of the
other parties to the suit as it has been begun.
Fraser v. Jennison, 1 S.Ct. 171, 106 U.S. 191, 27 L.
Ed. 131; Gudger v. Western N. C. R. Co., C.C.N.
C., 21 F. 81; Steed v. Henry, 180 S.W. 508, 509,
120 Ark. 583; Harrison v. Harrison, D.C.Miss.,
5 F.2d 1001, 1003; Mace v. Mayfield, D.C.S.C., 10
F.2d 231, 232. It requires two or more causes of
action, one of which is wholly between citizens
of different states. Johnson v. Marsh, D.C.Neb.,
49 F.Supp. 137, 139, 141, 143.
SEPARALITER. Lat. Separately. Used in in-
dictments to indicate that two or more defendants
were charged separately, and not jointly, with
the commission of the offense in question. State
v. Edwards, 60 Mo. 490.
SEPARATE, v. To disunite, divide, disconnect, or
sever. Webster; Faucett v. Hensley, 35 Ohio App.
16, 171 N.E. 352, 353.
SEPARATE, adj. Individual; distinct; particu-
lar; disconnected. Generally used in law as op-
posed to "joint," though the more usual antith-
esis of the latter term is "several." Either of
these words implies division, distribution, discon-
nection, or aloofness. Merrill v. Pepperdine, 9
Ind.App. 416, 36 N.E. 921.
As to separate "Acknowledgment" and "Cove-
nant," see those titles.
SEPARATE ACTION. As opposed to a joint ac-
tion, an action brought for himself alone by each
of several complainants who are all concerned in
the same transaction, but cannot legally join in
the suit.
SEPARATE DEMISE IN EJECTMENT. A de-
mise in a declaration in ejectment used to be
termed a "separate demise" when made by the les-
sor separately or individually, as distinguished
from a demise made jointly by two or more per-
sons, which was termed a "joint demise." No such
demise, either separate or joint, is now necessary
in this action. Brown.
SEPARATE ESTATE. The individual property of
one of two persons who stand in a social or busi-
ness relation, as distinguished from that which
they own jointly or are jointly interested in.
Thus, "separate estate," within the meaning of the
bankrupt law, is that in which each partner is
separately interested at the time of the bank-
ruptcy. The term can only be applied to such
property as belonged to one or more of the part-
ners, to the exclusion of the rest. In re Lowe,
11 Nat. Bankr. Rep. 221, F.Cas.No.8,564. The sep-
arate estate of a married woman is that which be-
longs to her, and over which her husband has
no right in equity. It may consist of lands or
chattels. Williams v. King, 29 F.Cas. 1,369.
SEPARATE EXAMINATION. The interrogation
of a married woman, who appears before an of-
ficer for the purpose of acknowledging a deed or
other instrument, conducted by such officer in
private or out of the hearing of her husband, in
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order to ascertain if she acts of her own will and
without compulsion or constraint of the husband.
Also the examination of a witness in private or
apart from, and out of the hearing of, the other
witnesses in the same cause.
SEPARATE MAINTENANCE. Allowance grant-
ed to a wife for support of herself and children
while she is living apart from her husband. Cohn
v. Cohn, 4 Wash.2d 322, 103 P.2d 366, 367.
Alimony in its strict sense is confined to an allowance
made to a wife who is legally separated or divorced from
husband, but in many jurisdictions courts have authority
to make an allowance to a wife who is living separate and
apart, from her husband without being legally separated or
divorced, and this allowance is often called "separate
maintenance." Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278.
SEPARATE PROPERTY. Property owned by
married person in his or her own right during
marriage. In re Morgan's Estate, 203 Cal. 569,
265 P. 241, 245. See, also, Separate Estate.
Of a married woman. That which she owns in her own
right, which is liable only for her own debts, and which
she can encumber and dispose of at her own will.
"Separate property" continues to be such as long as it
can clearly be traced and identified, and its rents, issues,
and profits remain separate property. True v. United
States, D.C.Wash., 51 F.Supp. 720, 723, 726.
SEPARATE TRIAL. The separate and individual
trial of each of several persons jointly accused of
a crime.
SEPARATIM. Lat. In old conveyancing. Sev-
erally. A word which made a several covenant.
5 Coke, 23a.
SEPARATION. In matrimonial law. A cessation
of cohabitation of husband and wife by mutual
agreement, or, in the case of "judicial separation,"
under the decree of a court. Woodruff v. Wood-
ruff, 215 N.C. 685, 3 S.E.2d 5, 6,
SEPARATION A MENSA ET THORO. A partial
dissolution of the marriage relation.
SEPARATION OF PATRIMONY. In Louisiana
probate law. The creditors of the succession may
demand, in every case and against every creditor
of the heir, a separation of the property of the
succession from that of the heir. This is what
is called the "separation of patrimony." The ob-
ject of a separation of patrimony is to prevent
property out of which a particular class of credi-
tors have a right to be paid from being confound-
ed with other property, and by that means made
liable to the debts of another class of creditors.
Civ.Code La. art. 1444.
SEPARATION ORDER. In England, where a
husband is convicted of an aggravated assault
upon his wife, the court or magistrate may order
that the wife shall be no longer bound to cohabit
with him. Such an order has the same effect as a
judicial decree of separation on the ground of
cruelty. It may also provide for the payment of
a weekly sum by the husband to the wife and for
the custody of the children. Sweet.
SEPARATISTS. Seceders from the Church of
England. They, like Quakers, solemnly affirm,
instead of taking the usual oath, before they give
evidence.
SEPES. Lat. In old English law. A hedge or in-
closure. The inclosure of a trench or canal. Dig.
43, 21, 4.
SEPTENNIAL ACT. In English law. The stat-
ute 1 Geo. I. St. 2, c. 38. The act by which a
parliament has continuance for seven years, and
no longer, unless sooner dissolved; as it always
has, in fact, been since the passing of the act.
Wharton.
SEPTUAGESIMA. In ecclesiastical law. The
third Sunday before Quadragesima Sunday, being
about the seventieth day before Easter.
SEPTUM. Lat. In old English law. An inclosure
or close. Cowell.
Roman law. An inclosure; an inclosed place
where the people voted; otherwise called "ovile."
SEPTUNX. Lat. In Roman law. A division of
the as, containing seven uncice, or duodecimal
parts; the proportion of seven-twelfths. Tayl.
Civil Law, 492.
SEPULCHRE. A grave or tomb. The place of
interment of a dead human body. The violation
of sepulchres is a misdemeanor at common law.
SEPULTURA. Lat. An offering to the priest for
the burial of a dead body.
SEQUAMUR VESTIGIA PATRUM NOSTROR-
UM. Jenk. Cent. Let us follow the footsteps of
our fathers.
SEQUATUR SUB SUO PERICULO. In old Eng-
lish practice. A writ which issued where a sher-
iff had returned nihil, upon a summoneas ad war-
rantizandum, and after an alias and pluries had
been issued. So called because the tenant lost his
lands without any recovery in value, unless upon
that writ he brought the vouchee into court. Rosc.
Real Act. 268; Cowell.
SEQUELA. L. Lat. In old English law. Suit.,
process or prosecution. Sequela causce, the pro-
cess of a cause. Cowell.
SEQUELA CURLE. Suit of court. Cowell.
SEQUELA VILLANORUM. The family retinue
and appurtenances to the goods and chattels of
villeins, which were at the absolute disposal of
the lord. Par. Antiq. 216.
SEQUELS. Small allowances of meal, or manu-
factured victual, made to the servants at a mill
where corn was ground, by tenure, in Scotland.
Wharton.
SEQUESTER, V.
Civil Law
To renounce or disclaim, etc. As when a widow
came into court and disclaimed having anything to
do with her deceased husband's estate, she was
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SERGEANT
said to sequester. The word more commonly sig-
nifies the act of taking in execution under a writ
of sequestration. Brown.
To deposit a thing which is the subject of a con-
troversy in the hands of a third person, to hold
for the contending parties.
To take a thing which is the subject of a con-
troversy out of the possession of the contending
parties, and deposit it in the hands of a third
person. Calvin.
English Ecclesiastical Practice
To gather and take care of the fruits and profits
of a vacant benefice, for the benefit of the next
incumbent.
Equity Practice
To take possession of the property of a defend-
ant, and hold it in the custody of the court, until
he purges himself of a contempt.
International Law
To confiscate; to appropriate private property
to public use; to seize the property of the private
citizens of a hostile power, as when a belligerent
nation sequesters debts due from its own subjects
to the enemy. 1 Kent, Comm. 62.
SEQUESTER, n. Lat. In the civil law. A per-
son with whom two or more contending parties
deposited the subject-matter of the controversy.
SEQUESTRARI FACIAS. In English ecclesi-
astical practice. A process in the nature of a
levari facias, commanding the bishop to enter in-
to the rectory and parish church, and to take and
sequester the same, and hold them until, of the
rents, tithes, and profits thereof, and of the other
ecclesiastical goods of a defendant, he have levied
the plaintiff's debt. 3 Bl. Comm. 418; 2 Archb.
Pr. 1284.
SEQUESTRATIO. Lat. In the civil law. The
separating or setting aside of a thing in con-
troversy, from the possession of both parties that
contend for it. It is two-fold,—voluntary, done by
consent of all parties; and necessary, when a
judge orders it. Brown.
SEQUESTRATION.
Contracts
A species of deposit which two or more persons,
engaged in litigation about anything, make of the
thing in contest with an indifferent person who
binds himself to restore it, when the issue is de-
cided, to the party to whom it is adjudged to be-
long. Civ. Code La. art. 2973.
Equity Practice
A writ authorizing the taking into the custody
of the law of the real and personal estate (or
rents, issues, and profits) of a defendant who is in
contempt, and holding the same until he shall
comply. It is sometimes directed to the sheriff,
but more commonly to four commissioners nom-
inated by the complainant. 3 Bl. Comm. 444;
Ryan v. Kingsbery, 88 Ga. 361, 14 S.E. 596.
English Ecclesiastical Law
The act of the ordinary in disposing of the goods
and chattels of one deceased, whose estate no
one will meddle with. Cowell. Or, in other words,
the taking possession of the property of a de-
ceased person, where there is no one to claim it.
Also, where a benefice becomes vacant, a se-
questration is usually granted by the bishop to
the church-wardens, who manage all the profits
and expenses of the benefice, plow and sow the
glebe, receive tithes, and provide for the neces-
sary cure of souls. Sweet.
International Law
The seizure of the property of an individual,
and the appropriation of it to the use of the gov-
ernment.
Louisiana
A mandate of the court, ordering the sheriff,
in certain cases, to take in his possession, and to
keep, a thing of which another person has the
possession, until after the decision of a suit, in
order that it be delivered to him who shall be ad-
judged entitled to have the property or possession
of that thing. This is what is properly called a
"judicial sequestration." Code Prac. La. art. 269;
American Nat. Bank v. Childs, 49 La.Ann. 1359, 22
So. 384.
Mayor's Court
In the mayor's court of London, "an attachment
of the property of a person in a warehouse or
other place belonging to and abandoned by him.
It has the same object as the ordinary attach-
ment, viz., to compel the appearance of the de-
fendant to an action," and, in default, to satisfy
the plaintiff's debt by appraisement and execution.
SEQUESTRATOR. One to whom a sequestration
is made. One appointed or chosen to perform
a sequestration, or execute a writ of sequestra-
tion.
SEQUESTRO HABENDO. In English ecclesiasti-
cal law. A judicial writ for the discharging a
sequestration of the profits of a church benefice,
granted by the bishop at the sovereign's command,
thereby to compel the parson to appear at the
suit of another. Upon his appearance, the parson
may have this writ for the release of the seques-
tration. Reg. Jud. 36.
SEQUI DEBET POTENTIA JUSTITIAM NON
PRZECEDERE. 2 Inst. 454. Power should fol-
low justice, not precede it.
SERF. In the feudal polity, a class of persons
whose social condition was servile, and who were
bound to labor and onerous duties at the will of
their lords. They differed from slaves only in
that they were bound to their native soil, instead
of being the absolute property of a master.
SERGEANT. In military law. A non-commis-
sioned officer, of whom there are several in each
company of infantry, troop of cavalry, etc. The
term is also used in the organization of a munici-
pal police force.
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SERGEANT
Sergeant at arms. See Serjeant.
Sergeant at law. See Serjeant.
Town sergeant. In several states, an officer hav-
ing the powers and duties of a chief constable or
head of the police department of a town or village.
SERIATELY. In series, or following one after
another. In re Flint, 32 C.C.P.A. 1116, 150 F.2d
126, 131.
SERIATIM. Lat. Severally; separately; indi-
vidually; one by one.
SERIOUS. Important; weighty; momentous,
grave, great, as in the phrases "serious bodily
harm," "serious personal injury," etc. Ward v.
State, 70 Tex.Cr.R. 393, 159 S.W. 272, 282; Mc-
Kee v. State, 93 Tex.Cr.R. 217, 246 S.W. 1035, 1036.
SERIOUS AND WILFUL MISCONDUCT. In
Workmen's Compensation Law. The intentional
doing of something with the knowledge that it
is likely to result in a serious injury, or with a
wanton and reckless disregard of its probable con-
sequences. McAdoo v. Industrial Accident Com-
mission, 40 Cal.App. 570, 181 P. 400, 401.
SERIOUS ILLNESS. In life insurance. An ill-
ness that permanently or materially impairs, or
is likely to permanently or materially impair, the
h"alth of the applicant. Not every illness is ser-
ious. An illness may be alarming at the time, or
thought to be serious by the one afflicted, and yet
not be serious in the sense of that term as used
in insurance contracts. An illness that is tern-
porary in its duration, and entirely passes away,
and is not attended, nor likely to be attended, by
a permanent or material impairment of the health
or constitution, is not a serious illness. It is not
sufficient that the illness was thought serious at
the time it occurred, or that it might have resulted
in permanently impairing the health. Fishbeck
v. New York Life Ins. Co., 179 Wis. 369, 192 N.W.
170, 175; American Nat. Ins. Co. v. Hicks, Tex.Civ.
App., 198 S.W. 616, 622.
SERJEANT. The same word etymologically with
"sergeant," but the latter spelling is more com-
monly employed in the designation of military and
police officers, (see Sergeant,) while the former is
preferred when the term is used to describe cer-
tain grades of legal practitioners and certain of-
ficers of legislative bodies. See infra.
Common Serjeant
A judicial officer attached to the corporation of
the city of London, who assists the recorder in
disposing of the criminal business at the Old Bail-
ey sessions, or central criminal court. Brown.
Serjeant at Arms
An executive officer appointed by, and attend.
ing on, a legislative body, whose principal duties
are to execute its warrants, preserve order, and
arrest offenders.
Serjeant at Law
A barrister of the common-law courts of high
standing, and of much the same rank as a doctor
of law is in the ecclesiastical courts. These ser-
jeants seem to have derived their title from the
old knights templar, (among whom there existed
a peculiar class under the denomination of "frêres
sergens," or "fratres servientes,") and to have
continued as a separate fraternity from a very
early period in the history of the legal profession.
The barristers who first assumed the old monastic
title were those who practiced in the court of com-
mon pleas, and until a recent period (the 25th of
April, 1834, 9 & 10 Viet. c. 54) the serjeants at law
always had the exclusive privilege of practice
in that court. Every judge of a common-law
court, previous to his elevation to the bench, used
to be created a serjeant at law; but since the
judicature act this is no longer necessary. Brown.
Serjeant of the Mace
In English law. An officer who attends the lord
mayor of London, and the chief magistrates of
other corporate towns. Holthouse.
Serjeants' Inn
The inn to which the serjeants at law belonged,
near Chancery lane; formerly called "Faryndon
Inn."
SERJEANTIA IDEM EST QUOD SERVITIUM.
Co.Litt. 105. Serjeanty is the same as service.
SERJEANTY. A species of tenure by knight serv-
ice, which was due to the king only, and was dis-
tinguished into grand and petit serjeanty. The
tenant holding by grand serjeanty was bound, in-
stead of attending the king generally in his wars,
to do some honorary service to the king in per-
son, as to carry his banner or sword, or to be his
butler, champion, or other officer at his corona-
tion. Petit serjeanty differed from grand ser-
jeanty, in that the service rendered to the king
was not of a personal nature, but consisted in ren-
dering him annually some small implement of
war, as a bow, sword, arrow, lance, or the like.
Cowell; Brown.
SERMENT. In old English law. Oath; an oath.
SERMO INDEX ANIMI. 5 Coke, 118. Speech is
an index of the mind.
SERMO RELATUS AD PERSONAM INTELLIGI
DEBET DE CONDITIONE PERSONZE. Lan-
guage which is referred to a person ought to be
understood of the condition of the person. 4 Coke,
16.
SERMONES SEMPER ACCIPIENDI SUNT SE-
CUNDUM SUBJECTAM MATERIAM, ET CON-
DITIONEM PERSONARUM. 4 Coke, 14. Lan-
guage is always to be understood according to its
subject-matter, and the condition of the persons.
SERPENT—VENOM REACTION. A test for in-
sanity by means of the breaking up of the red
corpuscles of the blood of the suspected person
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SERVICE
on the injection of the venom of cobras or other
serpents; recently employed in judicial proceed-
ings in some European countries and in Japan.
SERRATED. Notched on the edge; cut in notch-
es like the teeth of a saw. This was anciently the
method of trimming the top or edge of a deed of
indenture. See Indent, v.
SERVAGE. In feudal law, where a tenant, be-
sides payment of a certain rent, found one or more
workmen for his lord's service. Tomlins.
SERVANDA EST CONSUETUDO LOCI UBI
CAUSA AGITUR. The custom of the place where
the action is brought is to be observed. Decouche
v. Savetier, 3 Johns. Ch. (N. Y.) 190, 219, 8 Am.
Dec. 478.
SERVANT. One employed to perform service in
master's affairs, whose physical conduct in per-
formance of the service is controlled or is sub-
ject to right to control by the master. Brenner
v. Socony Vacuum Oil Co., 236 Mo.App. 524, 158
S.W.2d 171, 174, 175; Reiling v. Missouri Ins. Co.,
236 Mo.App. 164, 153 S.W.2d 79. A person in the
employ of another and subject to his control as to
what work shall be done and the means by which
it shall be accomplished. Pantell v. Shriver Alli-
son Co., 61 Ohio App. 119, 22 N.E.2d 497, 499. One
who is employed to render personal service to an-
other otherwise than in the pursuit of an inde-
pendent calling, and who, in such service, remains
entirely under control and direction of employer.
Henley v. State, 59 Ga.App. 595, 2 S.E.2d 139, 142.
A person of whatever rank or position in employ
and subject to direction or control of another in
any department of labor or business. Saums v.
Parfet, 270 Mich. 165, 258 N.W. 235, 237. For
"Family," see that title.
The term is often given special meanings by
statutes and like other words is greatly influenced
by context in wills and other documents. Hand
v. Cole, 88 Tenn. 400, 12 S.W. 922, 7 L.R.A. 96; In
re Thompson's Estate, 126 Misc. Rep. 91, 213 N.Y.
S. 426, 429.
SERVE. In Scotch practice. To render a verdict
or decision in favor of a person claiming to be an
heir; to declare the fact of his heirship judicially.
A jury are said to serve a claimant heir, when
they find him to be heir, upon the evidence sub-
mitted to them. Bell.
As to serving papers, etc., see Service of Process.
SERVI. Lat. Slaves.
Old English law. Bondmen; servile tenants.
Cowell.
Old European law. Persons over whom their
masters had absolute dominion.
SERVI REDEMPTIONE. Criminal slaves in the
time of Henry L 1 Kemble, Sax. 197, (1849).
SERVICE. Has a variety of meanings, depend-
ent upon the context or the sense in which used.
Central Power & Light Co. v. State, Tex.Civ.App.,
165 S.W.2d 920, 925. For "Family," see that title.
Contracts
The being employed to serve another; duty or
labor to be rendered by one person to another, the
former being bound to submit his will to the di-
rection and control of the latter. Cameron v.
State Theater Co., 256 Mass. 466, 152 N.E. 880, 881;
Ludwig v. Pacific Fire Ins. Co. of New York, 204
N.Y.S. 465, 466, 123 Misc. 189. The act of serving;
the labor performed or the duties required. State
ex rel. King v. Board of Trustees of Firemen's
Pension Fund of Kansas City, 192 Mo.App. 583,
184 S.W. 929, 930. Occupation, condition, or status
of a servant, etc. Performance of labor for bene-
fit of another, or at another's command; attend-
ance of an inferior, hired helper, slave, eth. Clax-
ton v. Johnson County, 194 Ga. 43, 20 S.E.2d 606,
610.
"Service" and "employment" generally imply that the
employer, or person to whom the service is due, both se-
lects and compensates the employee, or person rendering
the service. Ledvinka v. Home Ins. Co. of New York, 139
Md. 434, 115 A. 596, 597, 19 A.L.R. 167.
The term is used also for employment in one of
the offices, departments, or agencies of the gov-
ernment; as in the phrases "civil service," "pub-
lic service," "military service," etc. Chicago, B.
& Q. R. Co. v. School Dist. No. 1 in Yuma County,
63 Colo. 159, 165 P. 260, 263; Miller v. Illinois
Bankers' Life Ass'n, 138 Ark. 442, 212 S.W. 310,
311, 7 A.L.R. 378.
Domestic Relations
The "services" of a wife, for the loss of which,
occasioned by an injury to the wife, the husband
may recover in an action against the tort-feasor,
include whatever of aid, assistance, comfort, and
society the wife would be expected to render to or
bestow upon her husband in the circumstances in
which they were situated. Thompson v. Aultman
& Taylor Mach. Co., 96 Kan. 259, 150 P. 587, and
in all the relations of domestic life, Little Rock
Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S.W.
885, 889.
Feudal Law
The consideration which the feudal tenants were
bound to render to the lord in recompense for the
lands they held of him. The services, in respect
of their quality, were either free or base services,
and, in respect of their quantity and the time of
exacting them, were either certain or uncertain. 2
Bl. Comm. 60.
Practice
The exhibition or delivery of a writ, notice, in-
junction, etc., by an authorized person, to a person
who is thereby officially notified of some action
or proceeding in which he is concerned, and is
thereby advised or warned of some action or step
which he is commanded to take or to forbear.
U. S. v. McMahon, 17 S.Ct. 28, 164 U.S. 81, 41 L.Ed.
357; In re Tengwall Co., C.C.A.I11., 201 F. 82, 84;
Martin v. Hawkins, Tex.Civ.App., 238 S.W. 991.
General
Civil service. See that title.
Constructive service of process. Any form of
service other than actual personal service; notifi-
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SERVICE
cation of an action or of some proceeding therein,
given to a person affected by sending it to him in
the mails or causing it to be published in a news-
paper.
Personal service. Of a writ or notice is made
by delivering it to the person named, in person,
Georgia Casualty Co. v. McClure, Tex.Civ.App.,
239 S.W. 644, 647; or handing him a copy and in-
forming him of the nature and terms of the orig-
inal. Leaving a copy at his place of abode is not
personal service. Moyer v. Cook, 12 Wis. 336. But
where a person named in a summons is of un-
sound mind, service upon the guardian of such
person may be deemed "personal service." Pat-
tison v. Grand Trust & Savings Co., 195 Ind. 313,
144 N.E. 26, 29. Some courts hold to the view that
the mailing of a notice is not personal service.
State ex rel. Schuhart, 296 Mo. 156, 246 S.W. 196,
200, but others, interpreting the term as it is
found in statutes,. take a contrary view, United
States ex rel. Proctor Mfg. Co. v. Illinois Surety
Co., C.C.A.N.Y., 228 F. 304, 305; Hood v. Texas
Employers' Ins. Ass'n, Tex.Civ.App., 260 S.W.
243, 245 (registered mail) ; Kramm v. Stockton
Electric R. Co., 22 Cal.App. 737, 136 P. 523, 527
(express).
Public utilities. The furnishing of water, heat,
light and power, etc. by them. Claxton v. Johnson
County, 194 Ga. 43, 20 S.E.2d 606, 610.
Salvage service. See Salvage.
Secular service. Worldly employment or serv-
ice, as contrasted with spiritual or ecclesiastical.
Service by publication. Service of a summons
or other process upon an absent or nonresident
defendant, by publishing the same as an advertise-
ment in a designated newspaper, with such other
efforts to give him actual notice as the particular
statute may prescribe.
Service of an heir. An old form of Scotch law,
fixing the right and character of an heir to the
estate of his ancestor. Bell.
Service of process. The service of writs, sum-
monses, rules, etc., signifies the delivering to or
leaving them with the party to whom or with
whom they ought to be delivered or left; and,
when they are so delivered, they are then said to
have been served. Usually a copy only is served
and the original is shown. Brown.
Special service. In Scotch law. That form of
service by which the heir is served to the ances-
tor who was feudally vested in the lands. Bell.
Substituted service. Any form of service of
process other than personal service, such as serv-
ice by mail or by publication in a newspaper;
service of a writ or notice on some person other
than the one directly concerned, for example, his
attorney of record, who has authority to repre-
sent him or to accept service for him.
SERVICE ESTABLISHMENT. Within Fair La-
bor Standards Act of 1938. An establishment
which has ordinary characteristics of retail estab-
lishments except that services instead of goods
are sold. An establishment the principal activity
of which is to furnish service to the consuming
public, and includes barber shops, beauty parlors,
shoe shining parlors, clothes pressing clubs, laun-
dries and automobile repair shops. Fleming v. A.
B. Kirschbaum Co., C.C.A.Pa., 124 F.2d 567, 572.
SERVICES FONCIERS. Fr. In French law.
Easements of English law. Brown.
SERVIDUMBRE. In Spanish law. A servitude.
The right and use which one man has in the build-
ings and estates of another, to use them for the
benefit of his own. Las Partidas, 3, 31, 1.
SERVIENS AD CLAVAM. Serjeant at mace. 2
Mod. 58.
SERVIENS AD LEGEM. In old English practice.
Serjeant at law.
SERVIENS DOMINI REGIS. In old English law.
King's serjeant; a public officer, who acted some-
times as the sheriff's deputy, and had also judicial
powers. Bract. fols. 145b, 150b, 330, 358.
SERVIENS NARRATOR. A serjeant-at-law, q. v.
SERVIENT. Serving; subject to a service or
servitude. A servient estate is one which is bur-
dened with a servitude. Burdine v. Sewell, 92 Fla.
375, 109 So. 648, 652; Saratoga State Waters Cor-
poration v. Pratt, 227 N.Y. 429, 125 N.E. 834, 838.
SERVIENT TENEMENT. An estate in respect
of which a service is owing, as the dominant tene-
ment is that to which the service is due. North-
western Improvement Co. v. Lowry, 104 Mont. 289,
66 P.2d 792, 795, 110 A.L.R. 605.
SERVIENTIBUS. Certain writs touching serv-
ants and their masters violating the statutes made
against their abuses. Reg. Orig. 189.
SERVILE EST EXPILATIONIS CRIMEN; SOLA
INNOCENTIA LIBERA. 2 Inst. 573. The crime
of theft is slavish; innocence alone is free.
SERVITIA PERSONALIA SEQUUNTUR PER-
SONAM. 2 Inst. 374. Personal services follow
the person.
SERVITIIS ACQUIETANDIS. A judicial writ for
a man distrained for services to one, when he owes
and performs them to another, for the acquittal of
such services. Reg. Jud. 27.
SERVITIUM. Lat. In feudal and old English
law. The duty of obedience and performance
which a tenant was bound to render to his lord, by
reason of his fee. Spelman.
SERVITIUM, IN LEGE ANGILZE, REGULAR-
ITER ACCIPITUR PRO SERVITIO QUOD PER
TENENTES DOMINIS SUIS DEBETUR RA-
TIONE FEODI SUI. Co. Litt. 65. Service, by the
law of England, means the service which is due
from the tenants to the lords, by reason of their
fee.
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SERVITUS
SERVITIUM FEODALE ET PR)EDIALE. A per-
sonal service, but due only by reason of lands
which were held in fee. Bract. 1. 2, c. 16.
SERVITIUM FORINSECUM. Forinsec, foreign,
or extra service; a kind of service that was due
to the king, over and above (foris) the service due
to the lord.
SERVITIUM INTRINSECUM. Intrainsic or or-
dinary service; the ordinary service due the chief
lord, from tenants within the fee. Bract. fols. 36,
36b.
SERVITIUM LIBERUM. A service to be done by
feudatory tenants, who were called "liberi horn-
ines," and distinguished from vassals, as was their
service, for they were not bound to any of the
base services of plowing the lord's land, etc., but
were to find a man and horse, or go with the lord
into the army, or to attend the court, etc. Cowell.
See, also, Liberum Servitium.
SERVITIUM MILITARE. Knight-service; mili-
tary service. 2 Bl. Comm. 62.
SERVITIUM REGALE. Royal service, or the
rights and prerogatives of manors which belong
to the king as lord of the same, and which were
generally reckoned to be six, viz.: Power of judi-
cature, in matters of property; power of life and
death, in felonies and murder; a right to waifs
and strays; assessments; minting of money; and
assise of bread, beer, weights, and measures.
Cowell.
SERVITIUM SCUT'. Service of the shield; that
is, knight-service.
SERVITIUM SOCZE. Service of the plow; that is,
socage.
SERVITOR. A serving-man; particularly applied
to students at Oxford, upon the foundation, who
are similar to sizars at Cambridge. Wharton.
SERVITORS OF BILLS. In old English practice.
Servants or messengers of the marshal of the
king's bench, sent out with bills or writs to sum-
mon persons to that court. Now more commonly
called "tipstaves." Cowell.
SERVITUDE.
The Condition of being Bound to Service
The state of a person who is subjected, volun-
tarily or otherwise, to another person as his serv-
ant. Shilling v. State, 143 Miss. 709, 109 So. 737,
739.
A Charge or Burden
A charge or burden resting upon one estate
for the benefit or advantage of another; a species
of incorporeal right derived from the civil law
(see Servitus) and closely corresponding to the
"easement" of the common-law, except that "serv-
itude" rather has relation to the burden or the
estate burdened, while "easement" refers to the
benefit or advantage or the estate to which it ac-
crues. Rowe v. Nally, 81 Md. 367, 32 A. 198; Los
Angeles Terminal Land Co. v. Muir, 136 Cal. 36,
68 P. 308.
The term "servitude," in its original and popular sense,
signifies the duty of service, or rather the condition of one
who is liable to the performance of services. The word,
however, in its legal sense, is applied figuratively to things.
When the freedom of ownership in land is fettered or re-
stricted, by reason of some person, other than the owner
thereof, having some right therein, the land is said to
"serve" such person. The restricted condition of the own-
ership or the right which forms the subject-matter of the
restriction is termed a "servitude," and the land so bur-
dened with another's right is termed a "servient tene-
ment," while the land belonging to the person enjoying the
right is called the "dominant tenement." The word "ser-
vitude" may be said to have both a positive and a negative
signification; in the former sense denoting the restrictive
right belonging to the entitled party; in the latter, the
restrictive duty entailed upon the proprietor or possessor
of the servient land. Brown.
Classification
All servitudes which affect lands may be divided
into two kinds,—personal and real. Personal
servitudes are those attached to the person for
whose benefit they are established, and terminate
with his life. This kind of servitude is of three
sorts,—usufruct, use, and habitation. Real servi-
tudes, which are also called "predial" or "landed"
servitudes, are those which the owner of an estate
enjoys on a neighboring estate for the benefit of
his own estate. They are called "predial" or "land-
ed" servitudes because, being established for the
benefit of an estate, they are rather due to the
estate than to the owner personally. Frost-John-
son Lumber Co. v. Sailing's Heirs, 150 La. 756, 91
So. 207, 245; Tide-Water Pipe Co.. v. Bell, 280 Pa.
104, 124 A. 351, 354, 40 A.L.R.‘ 1516.
Real servitudes are divided, in the civil law,
into rural and urban servitudes. Rural servitudes
are such as are established for the benefit of a
landed estate; such, for example, as a right of
way over the servient tenement, or of access to a
spring, a coal-mine, a sand-pit, or a wood that is
upon it. Urban servitudes are such as are estab-
lished for the benefit of one building over another.
(But the buildings need not be in the city, as the
name would apparently imply.) They are such
as the right of support, or of view, or of drip or
sewer, or the like. Mackeld. Rom. Law, § 316,
et seq.
Servitudes are also classed as positive and neg-
ative. A positive servitude is one which obliges
the owner of the servient estate to permit or suf-
fer something to be done on his property by an-
other. A negative servitude is one which does not
bind the servient proprietor to permit something
to be done upon his property by another, but mere-
ly restrains him from making a certain use of
his property which would impair the easement
enjoyed by the dominant tenement. Rowe v. Nal-
ly, 81 Md. 367, 32 A. 198.
Penal servitude. In English criminal law, a
punishment which consists in keeping the offend-
er in confinement and compelling him to labor.
Involuntary servitude. See Involuntary.
SERVITUS. Lat. In the civil law. Slavery;
bondage; the state of service. An institution of
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SERVITUS
the conventional law of nations, by which one per-
son is subjected to the dominion of another, con-
trary to natural right. Inst. 1, 3, 2.
Also a service or servitude; an easement.
SERVITUS ACTUS. The servitude or right of
walking, riding, or driving over another's ground.
Inst. 2, 3, pr. A species of right of way.
SERVITUS ALTIUS NON TOLLENDI. The serv-
itude of not building higher. A right attached
to a house, by which its proprietor can prevent
his neighbor from building his own house higher.
Inst. 2, 3, 4.
SERVITUS AQUAE DUCENDIE. The servitude of
leading water; the right of leading water to one's
own premises through another's land. Inst. 2, 3,
pr.
SERVITUS AQUAE EDUCENDIE. The servitude
of leading off water; the right of leading off the
water from one's own onto another's ground. Dig.
8, 3, 29.
SERVITUS AQUAE HAURIENDZE. The servitude
right of draining water from another's spring
or well. Inst. 2, 3, 2.
SERVITUS CLOACAE MITTENDIE. The servi-
tude or right of having a sewer through the house
or ground of one's neighbor. Dig. 8, 1, 7.
SERVITUS EST CONSTITUTIO JURE GENTIUM
QUA QUIS DOMINO ALIENO CONTRA NATUR-
AM SUBJICITUR. Slavery is an institution by
the law of nations, by which a man is subjected
to the dominion of another, contrary to nature.
Inst. 1, 3, 2; Co. Litt. 116.
SERVITUS FUMI IMMITTENDI. The servitude
or right of leading off smoke or vapor through
the chimney or over the ground of one's neighbor.
Dig. 8, 5, 8, 5-7.
SERVITUS ITINERIS. The servitude or priv-
ilege of walking, riding, and being carried over
another's ground. Inst. 2, 3, pr. A species of
right of way.
SERVITUS LUMINUM. The servitude of lights;
the right of making or having windows or other
openings in a wall belonging to another, or in a
common wall, in order to obtain light for one's
building. Dig. 8, 2, 4.
SERVITUS NE LUMINIBUS OFFICIATUR. A
servitude not to hinder lights; the right of having
one's lights or windows unobstructed or darkened
by a neighbor's building, etc. Inst. 2, 3, 4.
SERVITUS NE PROSPECTUS OFFENDATUR.
A servitude not to obstruct one's prospect, i. e.,
not to intercept the view from one's house. Dig.
8, 2, 15.
SERVITUS ONERIS FERENDL The servitude
of bearing weight; the right to let one's building
rest upon the building, wall, or pillars of one's
neighbor. Mackeld. Rom. Law, § 317.
SERVITUS PASCENDI. The servitude of pastur-
ing; the right of pasturing one's cattle on anoth-
er's ground; otherwise called "jus pascendi."
Inst. 2, 3, 2.
SERVITUS PECORIS AD AQUAM ADPULSAM.
A right of driving one's cattle on a neighbor's
land to water.
SERVITUS PILED!! RUSTIC!. The servitude of
a rural or country estate; a rural servitude. Inst.
2, 3, pr., and 3.
SERVITUS PILED!! URBAN!. The servitude of
an urban or city estate; an urban servitude. Inst.
2, 3, 1.
SERVITUS PR1EDIORUM. A prandial servitude;
a service, burden, or charge upon one estate for
the benefit of another. Inst. 2, 3, 3.
SERVITUS PROJICIENDI. The servitude of pro-
jecting; the right of building a projection from
one's house in the open space belonging to one's
neighbor. Dig. 8, 2, 2.
SERVITUS PROSPECTUS. A right of prospect.
This may be either to give one a free prospect over
his neighbor's land or to prevent a neighbor from
having a prospect over one's own land. Dig. 8, 2,
15; Domat, 1, 1, 6.
SERVITUS STILLICIDII. The right of drip; the
right of having the water drip from the eaves of
one's house upon the house or ground of one's
neighbor. Inst. 2, 3, 1, 4; Dig. 8, 2, 2.
SERVITUS TIGNI IMMITTENDI. The servitude
of letting in a beam; the right of inserting beams
in a neighbor's wall. Inst. 2, 3, 1, 4; Dig. 8, 2, 2.
SERVITUS VIZE. The servitude or right of way;
the right of walking, riding, and driving over an-
other's land. Inst. 2, 3, pr.
SERVUS. Lat. In the civil and old English law.
A slave; a bondman. Inst. 1, 3, pr.; Bract. fol.
4b.
Servos a manu. (Lat. Literally, a servant by hand, or
with the hand.) A scribe, secretary. Harper's Lat. Dict.,
citing Suet. Caes. 74 (i. e., the biography of Julius Caesar
by Suetonius Tranquillus). This phrase was also written
a manu servos, and eventually gave rise to the word
amanuensis, derived from a manu, plus ensis, and taking
the place of a manu servos. Cent. Dict. s. v. "amanuen-
sis."
SESS. In English law. A tax, rate, or assess-
ment.
SESSIO. Lat. In old English law. A sitting; a
session. Sessio parliamenti, the sitting of parlia-
ment. Cowell.
SESSION. The sitting of a court, Legislature,
council, commission, etc., for the transaction of
its proper business. Hence, the period of time,
within any one day, during which such body is
assembled in form, and engaged in the transaction
of business, or, in a more extended sense, the
whole space of time from its first assembling to
its prorogation or adjournment sine die. Rails v.
Wyand, 40 Okl. 323, 138 P. 158, 162.
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SETT
Regular session. An ordinary, general, or stat-
ed session, (as of a legislative body,) as distin-
guished from a special or extra session.
Session laws. The name commonly given to the
body of laws enacted by a state Legislature at
one of its annual or biennial sessions. So called
Black's Law Dictionary Revised 4th Ed.-9,7 1537
Session of court is time during term in which court sits
for transaction of business, after judge arrives and opens
court. Carpenter v. City of Birmingham, 221 Ala. 368, 128
So. 899, 900.
Synonyms
Strictly speaking, the word "session," as ap-
plied to a court of justice, is not synonymous with
the word "term." The "session" of a court is the
time during which it actually sits for the transac-
tion of judicial business, and hence terminates
each day with the rising of the court. A "term"
of court is the period fixed by law, usually embrac-
ing many days or weeks, during which it shall be
open for the transaction of judicial business and
during which it may hold sessions from day to
day. But this distinction is not always observed,
many authorities using the two words inter-
changeably. Muse v. Harris, 122 Okl. 250, 254 P.
72, 73; State v. City of Victoria, 97 Kan. 638, 156 P.
705, 708; Nation v. Savely, 127 Okl. 117, 260 P.
32, 35.
General
Court of session. The supreme civil court of
Scotland, instituted A. D. 1532, consisting of thir-
teen (formerly fifteen) judges, viz., the lord presi-
dent, the lord justice clerk, and eleven ordinary
lords..
General sessions. A court of record, in England,
held by two or more justices of the peace, for the
execution of the authority given them by the com-
mission of the peace and certain statutes. Gen-
eral sessions held at certain times in the four
quarters of the year pursuant to St. 2 Hen. V.
are properly called "quarter sessions," (q. v.,) but
intermediate general sessions may also be held.
Sweet.
Great session of Wales. A court which was
abolished by St. 1 Wm. IV. c. 70. The proceedings
now issue out of the courts at Westminster, and
two of the judges of the superior courts hold the
circuits in Wales and Cheshire, as in other English
counties. Wharton.
Joint session.  In parliamentary practice, a
meeting together and commingling of the two
houses of a legislative body, sitting and acting to-
gether as one body, instead of separately in their
respective houses. Snow v. Hudson, 56 Kan. 378,
43 P. 262.
Petty sessions. In English law. A special or
petty session is sometimes kept in corporations
and counties at large by a few justices, for dis-
patching smaller business in the neighborhood be-
tween the times of the general sessions; as for
licensing alehouses, passing the accounts of the
parish officers, etc. Brown.
Quarter sessions. See that title.
to distinguish them from the "compiled laws"
or "revised statutes" of the state.
Session of the peace. In English law. A sitting
of justices of the peace for the exercise of their
powers. There are four kinds,—petty, special,
quarter, and general sessions.
Sessional orders. Certain resolutions which are
agreed to by both houses at the commencement
of every session of the English parliament, and
have relation to the business and convenience
thereof; but they are not intended to continue
in force beyond the session in which they are
adopted. They are principally of use as directing
the order of business. Brown.
Sessions. A sitting of justices in court upon
their commission, or by virtue of their appoint-
ment, and most commonly for the trial of crim-
inal cases. The title of several courts in England
and the United States, chiefly those of criminal
jurisdiction. Burrill.
Special sessions. In English law. A meeting
of two or more justices of the peace held for a
special purpose, (such as the licensing of ale-
houses,) either as required by statute or when
specially convoked, which can only be convened
after notice to all the other magistrates of the
division, to give them an opportunity of attend-
ing. Stone, J. Pr. 52, 55.
SET. This word appears to be nearly synonymous
with "lease." A lease of mines is frequently
termed a "mining set." Brown.
SET ASIDE. A judgment, decree, award, or any
proceedings is to cancel, annul, or revoke them
at the instance of a party unjustly or irregularly
affected by them. Brandt v. Brandt, 40 Or. 477, 67
P. 508.
SET DOWN. A cause for trial or hearing at a
given term is to enter its title in the calendar,
list, or docket of causes which are to be brought
on at that term.
SET OF EXCHANGE. In mercantile law. For-
eign bills are usually drawn in duplicate or trip-
licate, the several parts being called respectively
"first of exchange," "second of exchange," etc.,
and these parts together constitute a "set of ex-
change." Any one of them being paid, the others
become void.
SET OUT. In pleading. To recite or narrate facts
or circumstances; to allege or aver; to describe or
to incorporate; as, to set out a deed or contract.
First Nc,t.:. Bank v. Engelbercht, 58 Neb. 639, 79
N.W. 556; Powder Valley State Bank v. Hudelson,
74 Or. 191, 144 P. 494, 497.
SET UP. To bring forward or allege, as some-
thing relied upon or deemed sufficient; to pro-
pose or interpose, by way of defense, explanation,
or justification; as, to set up the statute of lim-
itations, i. e., offer and rely upon it as a defense
to a claim.
SETI. As used in mining laws, lease. Brown.

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SET-OFF
SET—OFF. A counter demand which defendant
holds against plaintiff, arising out of a transaction
extrinsic of plaintiff's cause of action. Delco
Light Co. v. John Le Roy Hutchinson Properties,
128 So. 831, 99 Fla. 410. Counter-demand must be
liquidated or capable of liquidation and grow out
of a contract or judgment. Marks V. Spitz, D.C.
Mass., 4 F.R.D. 348, 350. A money demand inde-
pendent of and unconnected with plaintiff's cause
of action. Otto v. Lincoln Sa y . Bank of Brooklyn,
51 N.Y.S.2d 561, 563, 268 App.Div. 400. Only a
counter demand upon which defendant at com-
mencement of action might have maintained inde-
pendent suit. Armstrong v. Marr, 120 Neb. 182,
231 N.W. 758. It generally admits plaintiff's cause
of action. Cook v. Soden, 12 N.J.Misc. 337, 171 A.
558, 559.
"Set-off", both at law and in equity, is that right which
exists between two parties, each of whom under an inde-
pendent contract owes an ascertained amount to the other,
to set off his respective debt by way of mutual deduction,
so that in any action brought for the larger debt the resi-
due only, after such deduction, shall be recovered. John
Wills, Inc., v. Citizens Nat. Bank of Netcong, 125 N.J.L.
546, 16 A.2d 804, 806.
A set-off was unknown to the common law; according to
which mutual debts were distinct, and inextinguishable
except by actual payment, release or agreement. Scarano
v. Scarano, 132 N.J.Eq. 362, 28 A.2d 425, 429, 430. A de-
fendant who had a demand against plaintiff was com-
pelled to bring a separate suit or resort to an equity court
to have his claim set off. The English statute 2 Geo. II, c.
22, which has been generally adopted in the United States,
with some modifications, in cases of mutual debts, how-
ever, allowed the defendant to set his debt against the
other, either by pleading it in bar, or giving it in evidence,
where proper notice had been given of such intention,
under the general issue. The statute being made for the
benefit of defendant, is not compulsory. The defendant,
may waive his right, and bring a cross action against plain-
tiff. Himes v. Barnitz, 8 Watts, Pa., 39; 2 Camp. 594;
Hinckly v. Walters, 9 Watts, Pa., 179; Branham v. John-
son, 62 Md. 259.
Independent of statute the right of set-off is of equitable
origin and hence power to allow set-offs is inherent in
equity courts and courts of equity sometimes allow set-
offs where, for some technical reason, it could not be al-
lowed at law under statute. Colton v. Dovers' Perpetual
Building and Loan Ass'n, 90 Md. 85, 45 A. 23, 26, 46 L.R.A.
388, 78 Am.St. Rep. 431; Scarano v. Scarano, 132 N.J.Eq.
362, 28 A.2d 425, 429, 430.
It 'differs from counterclaim, in that a "counterclaim"
arises out of the same transaction described in the com-
plaint, while a "set-off" is independent thereof. Savings
Bank of New London v. Santaniello, 130 Conn. 206, 33
A.2d 126, 128.
For the distinction between set-off and recoupment, see
Recoupment.
"Set-off" differs from a "lien," inasmuch as the former
belongs exclusively to the remedy, and is merely a right to
insist, if the party think proper to do so, when sued by
his creditor on a counter-demand, which can only be en-
forced through the medium of judicial proceedings; while
the latter is, in effect, a substitute for a suit. 2 Op.Attys.
Gen. 677.
SETTER. In Scotch law. The granter of a tack
or lease. 1 Forb. Inst. pt. 2, p. 153.
SETTLE. A word of equivocal meaning; mean-
ing different things in different connections, and
the particular sense in which it is used may be
explained by the context or the surrounding cir-
cumstances. Accordingly, the term may be em-
ployed as meaning to agree, to approve, to ar-
range, to ascertain, to liquidate, to come to or
reach an agreement, to determine, to establish, to
fix, to free from uncertainty, to place, or to regu-
late. Edwards v. Edwards, Tex.Civ.App., 52 S.W.
2d 657, 661; Kocher v. Ricketts, 71 Ohio App. 8,
47 N.E.2d 657, 659.
Parties are said to settle an account when they go over
its items and ascertain and agree upon the balance due
from one to the other. And, when the party indebted pays
such balance, he is also said to settle it. M. Zimmerman
Co. v. Goldberg, 69 Pa.Super.Ct. 254, 255; State Bank of
Stratford v. Young, 159 Iowa, 375, 140 N.W. 376, 380.
Settle a bill of exceptions. To approve it. Koch-
er v. Ricketts, 71 Ohio App. 8, 47 N.E.2d 657, 659.
When the bill of exceptions prepared for an appeal is
not accepted as correct by the respondent, it is settled
(i. e., adjusted and finally made conformable to the truth)
by being taken before the judge who presided at the trial,
and by him put into a form agreeing with his minutes
and his recollection. Green v. Commonwealth, 181 Ky. 253,
204 S.W. 82, 83.
Settle a document. To make it right in form
and in substance. Documents of difficulty or com-
plexity, such as mining leases, settlements by will
or deed, partnership agreements, etc., are gener-
ally settled by counsel. Sweet.
Settle property. To limit it, or the income of it,
to several persons in succession, so that the person
for the time being in the possession or enjoyment
of it has no power to deprive the others of their
right of future enjoyment. Sweet.
Settle up. A term, colloquial rather than legal,
which is applied to the final collection, adjust-
ment, and distribution of the estate of a decedent,
a bankrupt, or an insolvent corporation. It in-
cludes the processes of collecting the property,
paying debts and charges, and turning over the
balance to those entitled to receive it.
Settled estate. See Estate.
Settled insanity. Habitual insanity. Commun.
ity Loan & Investment Corporation v. Bowden,
64 Ga.App. 175, 12 S.E.2d 421, 423.
Settling day. The day on which transactions for
the "account" are made up on the English stock-
exchange. In consols they are monthly; in other
investments, twice in the month.
Settling interrogatories. The determination by
the court of objections to interrogatories and
cross-interrogatories prepared to be used in tak-
ing a deposition.
Settling issues. In English practice. Arranging
or determining the form of the issues in a cause.
Where, in any action, it appears to the judge that
the statement of claim or defense or reply does
not sufficiently disclose the issues of fact between
the parties, he may direct the parties to prepare
issues; and such issues shall, if the parties differ,
be settled by the judge. Judicature Act 1875,
schedule, art. 19.
SETTLEMENT. Act or process of adjusting or
determining; an adjusting; an adjustment be-
tween persons concerning their dealings or diffi-
culties; an agreement by which parties having
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SEVER
disputed matters between them reach or ascertain
what is coming from one to the other; arrange-
ment of difficulties; composure of doubts or dif-
ferences; determination by agreement; and liqui-
dation. Sowers v. Robertson, 144 Kan. 273, 58 P.2d
1105, 1107. Payment or satisfaction. Ledbetter v.
Hall, 191 Ark. 791, 87 S.W.2d 996, 999. In legal
parlance, implies meeting of minds of parties to
transaction or controversy. Ezmirlian v. Otto,
139 Cal.App. 486, 34 P.2d 774, 778.
See, also, Settle.
Contracts
Adjustment or liquidation of mutual accounts;
the act by which parties who have been dealing
together arrange their accounts and strike a bal-
ance. Also full and final payment or discharge
of an account. Bauer v. National Union Fire Ins.
Co. of Pittsburgh, Pa., 51 N.D. 1, 198 N.W. 546,
550; Michael v. Donohoe, 86 W.Va. 34, 102 S.E.
803, 805.
Conveyancing
A disposition of property by deed, usually
through the medium of a trustee, by which its en-
joyment is limited to several persons in succes-
sion, as a wife, children, or other relatives.
Poor Laws
A right acquired by a person, by continued resi-
dence for a given length of time in a town or
district, to claim aid or relief under the poor-laws
in case of his becoming a pauper. Delaware, L. &
W. R. Co. v. Petrowsky, C.C.A.N.Y., 250 F. 554, 560,
certiorari denied 38 S.Ct. 427, 247 U.S. 508, 62 L.
Ed. 1241; Inhabitants of Trenton v. City of Brew-
er, 134 Me. 295, 186 A. 612, 614.
Settlement once acquired is not necessarily lost or de-
feated by a voluntary absence for the purpose of obtaining
work. State ex rel. Heydenreich v. Lyons, 374 Ill. 557, 30
N.E.2d 46, 51.
Probate Practice
The settlement of an estate consists in its ad-
ministration by the executor or administrator car-
ried so far that all debts and legacies have been
paid and the individual shares of distributees in
the corpus of the estate, or the residuary portion,
as the case may be, definitely ascertained and de-
termined, and accounts filed and passed, so that
nothing remains but to make final distribution.
Appeal of Mathews, 72 Conn. 555, 45 A. 170;
Pearce v. Pearce, 199 Ala. 491, 74 So. 952, 957.
Public Transactions and Accounts
Administrative determination of the amount
due. Illinois Surety Co. v. U. S., 36 S.Ct. 321, 323,
240 U.S. 214, 60 L.Ed. 609; Illinois Surety Co. v.
United States, C.C.A.S.C., 215 F. 334, 336; United
States, for Use of R. Haas Electric & Mfg. Co., v.
Title Guaranty & Surety Co., C.C.A.7, 254 F. 958,
959; U. S., to Use of Crellin, v. George F. Pawling
& Co., C.C.A.3, 297 F. 65, 68.
General
Act of settlement. The statute 12 & 13 Wm. III.
c. 2, by which the crown of England was limited
to the house of Hanover, and some new provisions
were added at the same time for the better secur-
ing the religion, laws, and liberties.
Deed of settlement. A deed made for the pur-
pose of settling property, i. e., arranging the mode
and extent of the enjoyment thereof. The party
who settles property is called the "settlor;" and
usually his wife and children or his creditors or
his near relations are the beneficiaries taking in-
terests under the settlement. Brown.
Equity of settlement. The equitable right of a
wife, when her husband sues in equity for the re-
duction of her equitable estate to his own posses-
sion, to have the whole or a portion of such estate
settled upon herself and her children. Also a
similar right now recognized by the equity courts
as directly to be asserted against the husband.
Also called the "wife's equity."
Family settlement. See Family Settlement.
Final settlement. This term, as applied to the
administration of an estate, is usually understood
to have reference to the order of court approving
the account which closes the business of the es-
tate, and which finally discharges the executor
or administrator from the duties of his trust.
Roberts v. Spencer, 112 Ind. 85, 13 N.E. 129.
Strict settlement. This phrase was formerly
used to denote a settlement whereby land was lim-
ited to a parent for life, and after his death to
his first and other sons or children in tail, with
trustees interposed to preserve contingent re-
mainders. 1 Steph. Comm. 332, 333. In England,
a settlement to the use of the settlor for life, and
after his death to the use that his widow may re-
ceive a rent charge (or jointure), subject to these
life interests, to trustees for a long term of years
in trust to raise by mortgage on the term a sum
of money for the portions for his younger chil-
dren, and subject thereto to the use of his first
and other sons successively and the heirs male of
their bodies, with the ultimate remainder in de-
fault of issue to the settlor in fee simple.
Voluntary settlement. A settlement of property
upon a wife or other beneficiary, made gratui-
tously or without valuable consideration.
SETTLER. A person who, for the purpose of ac-
quiring a pre-emption right, has gone upon the
land in question, and is actually resident there.
Hume v. Gracy, 86 Tex. 671, 27 S.W. 584; McIn-
tyre v. Sherwood, 82 Cal. 139, 22 P. 937.
SETTLOR. The grantor or donor in a deed of
settlement.
Also one who creates trust. Ulmer v. Fulton,
129 Ohio St. 323, 195 N.E. 557, 564, 97 A.L.R. 1170.
One who furnishes the consideration for the crea-
tion of a trust, though in form the trust is created
by another. Lehman v. Commissioner of Inter-
nal Revenue, C.C.A.2, 109 F.2d 99, 100.
SEVER. To separate, as one from another; to
cut off from something; to divide; to part in any
way, especially by violence, as by cutting, rend-
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ing, etc.; as, to sever the head from the body; to
cut or break open or apart; to divide into parts;
to cut through; to disjoin; as, to sever the arm
or leg. Muse v. Metropolitan Life Ins. Co., 193
La. 605, 192 So. 72, 74, 125 A.L.R. 1075. In prac-
tice. To insist upon a plea distinct from that of
other co-defendants.
SEVERABLE. Admitting of severance or separa-
tion, capable of being divided; separable; capable
of being severed from other things to which it
was joined, and yet maintaining a complete and
independent existence. State ex rel. Dolman v.
Dickey, 288 Mo. 92, 231 S.W. 582, 585; Lawson v.
Muse, 180 Mo.App. 35, 165 S.W. 396, 397.
SEVERABLE CONTRACT. See Contract.
SEVERABLE STATUTE. A statute if after an
invalid portion of it has been stricken out, that
which remains is self-sustaining and capable of
separate enforcement without regard to the strick-
en portion, in which case that which remains
should be sustained. Rutenberg v. City of Phil-
adelphia, 329 Pa. 26, 196 A. 73, 79.
SEVERAL. More than two, often used to desig-
nate a number greater than one. First Nat. Trust
& Savings Bank of San Diego v. Industrial Acci-
dent Commission, 2 P.2d 347, 351, 213 Cal. 322, 78
A.L.R. 1324. Each particular, or a small number,
singly taken. Nashville, C. & St. L. Ry. v. Mar-
shall County, 161 Tenn. 236, 30 S.W.2d 268. Sepa-
rate; individual; independent; severable. In this
sense the word is distinguished from "joint." Al-
so exclusive; individual; appropriated. In this
sense it is opposed to "common." Townsend v.
Roof, 210 Mo.App. 293, 237 S.W. 189, 190; L. L.
Satler Lumber Co. v. Exler, 239 Pa. 135, 86 A. 793,
798.
As to several "Counts," "Covenant," "Demise,"
"Fishery," "Tail," and "Tenancy," see those titles.
SEVERAL ACTIONS. Where a separate and dis-
tinct action is brought against each of two or
more persons who are all liable to the plaintiff in
respect to the same subject-matter, the actions
are said to be "several." If all the persons are
joined as defendants in one and the same action,
it is called a "joint" action.
SEVERAL INHERITANCE. An inheritance con-
veyed so as to descend to two persons severally,
by moieties, etc.
SEVERAL ISSUES. This occurs where there is
more than one issue involved in a case. 3 Steph.
Comm. 560.
SEVERALLY. Distinctly, separately, apart from
others. State Nat. Bk. v. Reilly, 124 Ill. 471, 14 N.
E. 657. When applied to a number of persons
the expression severally liable usually implies
that each one is liable alone. Pruyn v. Black, 21
N.Y. 301.
SEVERALTY. A state of separation. An estate
in severalty is one that is held by a person in his
own right only, without any other person being
joined or connected with him, in point of interest,
during his estate therein. 2 Bl.Comm. 179.
The term "severalty" is especially applied, in England,
to the case of adjoining meadows undivided from each
other, but belonging, either permanently or in what are
called "shifting severalties," to separate owners, and held
in severalty until the crops have been carried, when the
whole is thrown open as pasture for the cattle of all the
owners, and in some cases for the cattle of other persons
as well; each owner is called a "severalty owner," and his
rights of pasture are called "severalty rights," as opposed
to the rights of persons not owners. Cooke, -Lncl.Acts, 47,
163n.
SEVERALTY, ESTATE IN. An estate which is
held by the tenant in his own right only, without
any other being joined or connected with him in
point of interest during the continuance of his
estate. 2 Bl.Comm. 179.
SEVERANCE. Act of severing, or state of being
severed; partition; separation. Muse v. Metro-
politan Life Ins. Co., 193 La. 605, 192 So. 72, 74, 125
A.L.R. 1075.
Pleading
Separation; division. The separation by defend-
ants in their pleas; the adoption, by several de-
fendants, of separate pleas, instead of joining in
the same plea. Steph.Pl. 257.
Property
The destruction of any one of the unities of a
joint tenancy. It is so called because the estate
is no longer a joint tenancy, but is severed. Cut-
ting of the crops, such as corn, grass, etc., or the
separating of anything from the realty. Brown.
SEVERANCE DAMAGE. Any element of value
arising out of relation of condemned portion to
tract of which it was a part. It is to be included
in owner's compensation. U. S. v. Miller, 63 S.
Ct. 276, 281, 317 U.S. 369, 87 L.Ed. 336, 147 A.L.R.
55.
SEVERE. Sharp, grave, distressing, violent, ex-
treme, torture, rigorous, difficult to be endured.
Traders & General Ins. Co. v. Crouch, Tex.Civ.
App., 113 S.W.2d 650, 652.
SEVERE ILLNESS. Within life policy. An ill-
ness as has, or ordinarily does have, a permanent,
detrimental effect upon the physical system.
Boos v. Life Ins. Co., 64 N.Y. 236; Pickens v. Se-
curity Ben. Ass'n, 231 P. 1016, 1019, 117 Kan. 475,
40 A.L.R. 654.
SEWAGE. Refuse and foul matter, solid or li-
quid, carried off by sewer. Borough of Wilkins-
burg v. School Dist. of Borough of Wilkinsburg,
298 Pa. 193, 148 A. 77, 80.
SEWAGE SYSTEM. A system of sewers for the
drainage of foul waters of a community. Pioneer
Real Estate Co. v. City of Portland, 247 P. 319,
321, 119 Or. 1,
SEWARD, or SEAWARD. One who guards the
sea-coast; custos
SEWER. A fresh-water trench or little river, en-
compassed with banks on both sides, to drain off
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surplus water into the sea. Cowell. Properly, a
trench artificially made for the purpose of carry-
ing water into the sea, (or a river or pond.)
Crabb, Real Prop. § 113; Bennett v. New Bedford,
110 Mass. 433.
In its modern and more usual sense, an artificial
(usually under-ground or covered) channel used
for the drainage of two or more separate build-
ings. State Board of Health v. Jersey City, 55
N.J.Eq. 116, 35 A. 835; Aldrich v. Paine, 106 Iowa
461, 76 N.W. 812.
"Sewers" differ from "drains" only in that the former
are in cities, and generally covered over, while the latter
are in rural communities, and open. Pioneer Real Estate
Co. v. City of Portland, 119 Or. 1, 247 P. 319, 321. See,
also, Barton v. Drainage Dist. No. 30, 174 Ark. 173, 294
S. W. 418, 419.
Commissioners of Sewers
In English law. The court of commissioners
of sewers is a temporary tribunal erected by vir-
tue of a commission under the great seal. Its
jurisdiction is to overlook the repairs of sea-banks
and sea-walls, and the cleansing of public rivers,
streams, ditches, and other conduits whereby any
waters are carried off, and is confined to such
county or particular district as the commission
expressly names. Brown.
Public Sewer
One which serves the public and connects with
and receives the discharges from district sewers.
Schwabe v. Moore, 187 Mo.App. 74, 172 S.W. 1157,
1159.
Sewer Outlet
As used in a statute, that portion of a sewer
which serves no other purpose than to connect the
sewer system with the point of discharge. Mo-
gaard v. Robinson, 48 N.D. 859, 187 N.W. 142, 143.
Trunk Sewer
One which bears the same relation to a system
of sewers that the trunk of a tree bears to its
branches. Rush v. Grandy, 66 Mont. 222, 213 P.
242, 243.
SEX. The sum of the peculiarities of structure
and function that distinguish a male from a fe-
male organism; the character of being male or
female. Webster, Dict.
SEXAGESIMA SUNDAY. In ecclesiastical law.
The second Sunday before Lent, being about the
sixtieth day before Easter.
SEXHINDENI. In Saxon law. The middle
thanes, valued at 600s.
SEXTANS. Lat. In Roman law. A subdivision
of the as, containing two uncice; the proportion
of two-twelfths, or one-sixth. 2 Bl.Comm. 462,
note.
SEXTARY. In old records. An ancient measure
of liquids, and of dry commodities; a quarter or
seam. Spelman.
SEXTERY LANDS. Lands given to a church or
religious house for maintenance of a sexton or
sacristan. Cowell.
SEXTON. An attendant or care-taker in a church
building, usually with care of the attached bury-
ing ground.
SEXTUS DECRETALIUM. Lat. The sixth
(book) of the decretals; the sext, or sixth decretal.
So called because appended, in the body of the
canon law, to the five books of the decretals of
Gregory IX.; it consists of a collection of supple-
mentary decretals, and was published A. D. 1298.
Butl. Hor. Jur. 172; 1 Bl.Comm. 82.
SEXUAL DISEASES. Synonymous with vener-
eal diseases. State v. Hollinshead, 77 Or. 473, 151
P. 710, 711.
SEXUAL INSTINCT, INVERSION AND PER-
VERSION OF. See Insanity; Pederasty; Sodo-
my.
SEXUAL INTERCOURSE. Carnal copulation of
male and female, implying actual penetration of
the organs of the latter. Williams v. State, 92
Fla. 125, 109 So. 305, 306.
SHACK. In English law. The straying and es-
caping of cattle out of the lands of their owners
into other uninclosed land; an intercommoning of
cattle. 2 H.B1. 416.
It sometimes happens that a number of adjacent fields,
though held in severalty, i. e., by separate owners, and cul-
tivated separately, are, after the crop on each parcel has
been carried in, thrown open as pasture to the cattle of all
the owners. "Arable lands cultivated on this plan are
called 'shack fields,' and the right of each owner of a part
to feed cattle over the whole during the autumn and win-
ter is known in law as 'common of shack,' a right which is
distinct in its nature from common because of vicinage,
though sometimes said to be nearly identical with it." El-
ton, Commons, 30; Sweet.
SHAFT. An opening in the ground or in struc-
tures. Franklin v. Webber, 93 Or. 151, 182 P. 819,
820.
SHALL. As used in statutes, contracts, or the
like, this word is generally imperative or manda-
tory. McDunn v. Roundy, 191 Iowa, 976, 181 N.
W. 453, 454; Bay State St. Ry. Co. v. City of Wo-
burn, 232 Mass. 201, 122 N.E. 268; U. S. v. Two
Hundred and Sixty-Seven Twenty-Dollar Gold
Pieces, D.C.Wash., 255 F. 217, 218; Baer v. Gore,
79 W.Va. 50, 90 S.E. 530, 531, L.R.A.1917B, 723.
In common or ordinary parlance, and in its ordinary
signification, the term "shall" is a word of command, and
one which has always or which must be given a compulsory
meaning; as denoting obligation. It has a peremptory
meaning, and it is generally imperative or mandatory. It
has the invariable significance of excluding the idea of dis-
cretion, and has the significance of operating to impose a
duty which may be enforced, particularly if public policy
is in favor of this meaning, or when addressed to public
officials, or where a public interest is involved, or where
the public or persons have rights which ought to be exer-
cised or enforced, unless a contrary intent appears. Peo-
ple v. O'Rourke, 124 Cal. App. 752, 13 P.2d 989, 992.
But it may be construed as merely permissive or
directory, (as equivalent to "may,") to carry out
the legislative intention and in cases where no
right or benefit to any one depends on its being
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taken in the imperative sense, and where no pub-
lic or private right is impaired by its interpreta-
tion in the other sense. Spaulding & Kimball v.
;Etna Chemical Co., 98 Vt. 169, 126 A. 588, 589;
Wisdom v. Board of Sup'rs of Polk County, 236
Iowa 669, 19 N.W.2d 602, 607, 608. Also, as against
the government, it is to be construed as "may,"
unless a contrary intention is manifest. Cairo &
Fulton R. Co. v. Hecht, 95 U.S. 170, 24 L.Ed. 423.
Although the word usually denotes an obliga-
tion, it also implies an element of futurity. Cun-
ningham v. Long, 125 Me. 494, 135 A. 198, 200;
Hemsley v. McKim, 119 Md. 431, 87 A. 506, 511.
SHAM. False;-said of a pleading. Germofert
Mfg. Co. v. Castles, 97 S.C. 389, 81 S.E. 665, 666;
Segerstrom v. Holland Piano Mfg. Co., 160 Minn.
95, 199 N.W. 897, 898. A sham pleading is there-
fore one good in form, but false in fact. Bollen
v. Woodhams, 68 Colo. 322, 190 P. 427.
For sham "Answer," "Plea," and "Reply," see
those titles.
SHANGHAI. To drug, intoxicate, or render in-
sensible and ship as a sailor,-usually to secure
advance money or a premium. Webster, Diet.
Under federal law, procuring or inducing, or attempting
to do so, by force, or threats, or by representations which
one knows or believes to be untrue, or while the person is
intoxicated or under the influence of any drug, to go on
board of any vessel, or 'agree to do so, to perform service
or labor thereon, such vessel being engaged in interstate or
foreign commerce, on the high seas or any navigable water
of the United States, or knowingly to detain on board such
vessel such person, so procured or induced, or knowingly
aiding or abetting such things, is an offense. See 18 U.S.
C. A. § 2194.
SHARE, v. To partake; enjoy with others; have
a portion of. Cook v. Worthington, 116 Ark. 328,
173 S.W. 395, 396; People v. Sigers, 217 Mich.
578, 187 N.W. 373, 374.
SHARE, n. A part or definite portion of a thing
owned by a number of persons in common and
contemplates something owned in common by two
or more persons and has reference to that part
of the undivided interest which belongs to some
one of them. In re Bond & Mortgage Guarantee
Co., 157 Misc. 240, 283 N.Y.S. 623, 639.
In the law of corporations and joint-stock com-
panies, a definite portion of the capital of a com-
pany.
See, also, Share of Corporate Stock.
SHARE AND SHARE ALIKE. In equal shares
or proportions. Jenne v. Jenne, 271 Ill. 526, 111
N.E. 540, 543; Rogers v. Burress, 199 Ky. 766, 251
S.W. 980, 98L The words commonly indicate per
capita division; Burton v. Cahill, 192 N.C. 505,
135 S.E. 332, 335; and they may be applied to a
division between classes as well as to a division
among individuals; Laisure v. Richards, 56 Ind.
App. 301, 103 N.E. 679, 682; Tucker v. Nugent, 117
Me. 10, 102 A. 307, 310.
SHARE CERTIFICATE. An instrument under
the seal of the company, certifying that the per-
son therein named is entitled to a certain number
ox shares; it is prima facie evidence of his title
thereto. Frank Gilbert Paper Co. v. Prankard,
204 App.Div. 83, 198 N.Y.S. 25, 28; Furr v. Chap-
man, Tex.Com.App., 286 S.W. 171, 172.
SHARE OF CORPORATE STOCK. A proportion-
al part of certain rights in the management and
profits of a corporation during its existence, and
in the assets upon dissolution, and evidence of the
stockholder's ratable share in the distribution of
the assets on the winding up of the corporation's
business. Department of Treasury of Indiana v.
Crowder, 214 Ind. 252, 15 N.E.2d 89, 91; Commis-
sioner of Internal Revenue v. Scatena, C.C.A.9, 85
F. 729, 732.
SHARE-WARRANT TO BEARER. A warrant or
certificate under the seal of the company, stating
that the bearer of the warrant is entitled to a cer-
tain number or amount of fully paid up shares or
stock. Coupons for payment of dividends may
be annexed to it. Delivery of the share-warrant
operates as a transfer of the shares or stock.
Sweet.
SHAREHOLDER. Strictly, a person who has
agreed to become a member of a corporation or
company, and with respect to whom all the re-
quired formalities have been gone through; e. g.,
signing of deed of settlement, registration, or the
like. A shareholder by estoppel is a person who
has acted and been treated as a shareholder, and
consequently has the same liabilities as if he were
an ordinary shareholder. Lind;. Partn. 130. Beal
v. Essex Sa y . Bank, C.C.A.Mass., 67 F. 816, 15 C.
C.A. 128; State v. Mitchell, 104 Tenn. 336, 58 S.W.
365.
SHARP. A "sharp" clause in a mortgage or oth-
er security (or the whole instrument described as
"sharp") is one which empowers the creditor to
take prompt and summary action upon default
in payment or breach of other conditions.
SHARPING CORN. A customary gift of corn,
which, at every Christmas, the farmers in some
parts of England give to their smith for sharpen-
ing their plow-irons, harrow-tines, _etc. Blount.
SHASTER. In Hindu law. The instrument of
government or instruction; any book of instruc-
tions, particularly containing Divine ordinances.
Wharton.
SHAVE. Sometimes used to denote the act of ob-
taining the property of another by oppression and
extortion. Also used in an innocent sense to de-
note the buying of existing notes and other secur-
ities for money, at a discount. Hence to charge
a man with using money for shaving is not libel-
ous per se. Trentham v. Moore, 111 Tenn. 346,
76 S.W. 904.
SHAW. In old English law. A wood. Co.Litt.
4b.
SHAWATORES. Soldiers. Cowell.
SHEADING. A riding, tithing, or division in the
Isle of Man, where the whole island is divided nto
six sheadings, in each of which there is a coroner
or chief constable appointed by a delivery of a
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rod at the Tinewald court or annual convention.
King, Isle of Man, 7.
SHEEP. A term which ordinarily includes rams,
ewes, and lambs. Panhandle & 'S. F. Ry. Co. v.
Bell, Tex.Civ.App., 189 S.W. 1097, 1101. But in
the Stat. 7 & 8 Geo. IV, c. 29, § 25, making it a
felony to steal any "ram, ewe, sheep, or lamb,"
the word "sheep" should be used in indictments
only when it is intended to refer to a wether
more than a year old. Rex v. Birket, 4 Car. & P.
216.
SHEEP-HEAVES. Small plots of pasture, in
England, often in the middle of the waste of a
manor, of which the soil may or may not be in
the lord, but the pasture is private property, and
leased or sold as such. They principally occur in
the northern counties, (Cooke, Incl. Acts, 44,) and
seem to be corporeal hereditaments, (Elton, Com-
mons, 35,) although they are sometimes classed
with rights of common, but erroneously, the right
being an exclusive right of pasture. Sweet.
SHEEP-SILVER. A service turned into money,
which was paid in respect that anciently the ten-
ants used to wash the lord's sheep. Wharton.
SHEEP-SKIN. A deed; so called from the parch-
ment it was written on.
SHEEP-WALK. Right of. Fold-course (q. v.)
Elton, Commons, 44.
SHEETING. In a technical sense, a form of pile
driving, being the lining of timber to a caisson or
cofferdam formed of sheet piles or piles with
flanking between them. Mazzarisi v. Ward &
Tully, 156 N.Y.S. 964, 170 App.Div. 868.
SHELL SHOCK. Not a distinct type of nervous
disorder, but a condition produced on certain
organisms by sudden fear, or by highly exciting
causes; it is a form of neurosis; it is not settled,
general insanity, but a functional nervous dis-
ease, and not due to organic changes. People v.
Gilberg, 197 Cal. 306, 240 P. 1000, 1002. See, also,
Shock.
SHELLEY'S CASE, RULE IN. "When the ances-
tor, by any gift or conveyance, taketh an estate of
freehold, and in the same gift or conveyance an
estate is limited, either mediately or immediately,
to his heirs in fee or in tail, 'the heirs' are words
of limitation of the estate, and not words of pur-
chase." 1 Coke, 104; Winchell v. Winchell, 259 Ill.
471, 102 N.E. 823, 824; Gordon v. Cadwalader, 164
Cal. 509, 130 P. 18, 19; McHatton's Estate v.
Peale's Estate, Tex.Civ.App., 248 S.W. 103, 105.
This rule is expressed by Chancellor Kent as follows :
"Where a person takes an estate of freehold, legally or
equitably, under a deed, will, or other writing, and in the
same instrument there is a limitation by way of remain-
der, either with or without the interposition of another
estate, of any interest of the same legal or equitable quality
to his heirs, or heirs of his body, as a class of persons to
take in succession from generation to generation, the limi-
tation to the heirs entitles the ancestor to the whole es-
tate." In re Thorne's Estate, 344 Pa. 503, 25 A.2d 811, 819.
Intimately connected with the quantity of estate which
a tenant may hold in realty is the antique feudal doctrine
generally known as the "Rule in Shelley's Case," which is
reported by Lord Coke in 1 Coke, 93b (23 Eliz. in C.B.).
This rule was not first laid down or established in that
case, but was then simply admitted in argument as a well-
founded and settled rule of law, and has always since been
quoted as the "Rule in Shelley's Case." Wharton. The
rule was adopted as a part of the common law of this
country, and in many of the states still prevails. It has
been abolished in most of them.
SHELTER. In a statute relating to the provision
of food, clothing, and shelter for one's children, a
home with proper environments, as well as protec-
tion from the weather. Hummel v. State, 73 Ind.
App. 12, 126 N.E. 444, 446.
SHEREFFE. The body of the lordship of Cardiff
in South Wales, excluding the members of it.
Powel, Hist. Wales, 123.
SHERIFF.
American Law
The chief executive and administrative officer of
a county, being chosen by popular election. His
principal duties are in aid of the criminal courts
and civil courts of record; such as serving
process , summoning juries, executing judgments,
holding judicial sales and the like. He is also the
chief conservator of the peace within his terri-
torial jurisdiction. Harston v. Langston, Tex.Civ.
App., 292 S.W. 648, 650. When used in statutes,
the term may include a deputy sheriff. Lanier v.
Town of Greenville, 174 N.C. 311, 93 S.E. 850,
853.
English Law
The principal officer in every county, who has
the transacting of the public business of the
county. He is an officer of great antiquity, and
was also called the "shire-reeve," "reeve," or
"bailiff." He is called in Latin "vice-comes," as
being the deputy of the earl or comes, to whom
anciently the custody of the shire was committed.
The duties of the sheriff principally consist in
executing writs, precepts, warrants from justices
of the peace for the apprehension of offenders,
etc. Brown.
Scotch Law
The office of sheriff differs somewhat from the
same office under the English law, being, from
ancient times, an office of important judicial pow-
er, as well as ministerial. The sheriff exercises
a jurisdiction of considerable extent, both of civil
and criminal character, which is, in a proper
sense, judicial, in addition to powers resembling
those of an English sheriff. Tomlins; Bell,
General
Deputy sheriff. See Deputy.
High sheriff. One holding the office of sheriff,
as distinguished from his deputies or assistants
or under sheriffs.
Pocket sheriff. In English law. A sheriff ap-
pointed by the sole authority of the crown, without
the usual form of nomination by the judges in
the exchequer. 1 Bl.Comm. 342; 3 Steph.Comm.
23.
SHERIFF CLERK. The clerk of the sheriff's
court in Scotland,
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SHERIFF DEPUTE. In Scotch law. The prin-
cipal sheriff of a county, who is also a judge.
SHERIFF-GELD. A rent formerly paid by a
sheriff, and it is prayed that the sheriff in his
account may be discharged thereof. Rot. Parl.
50 Edw. III.
SHERIFF-TOOTH. In English law. A tenure by
the service of providing entertainment for the
sheriff at his county courts. An ancient tax on
land in Derbyshire. A common tax formerly
levied for the sheriff's diet. Cowell; Wharton.
SHERIFF'S COURT. The court held before the
sheriff's deputy, that is, the undersheriff, and
wherein actions are brought for recovery of debts
under £20. Writs of inquiry are also brought
here to be executed. The sheriff's court for the
county of Middlesex is that wherein damages are
assessed in proper cases after trial at Westmins-
ter. Brown.
SHERIFF'S COURT IN LONDON. A tribunal
having cognizance of personal actions under the
London (city) Small Debts Act of 1852. See 3
Steph.Comm., 11th ed. 30, n., 301, 449, note (1) ;
3 Bla.Comm. 80, note (j).
The "Sheriffs Court of the City of London" was the
name by which the City of London Court was known
prior to the County Courts Act, 1867, 30 & 31 Vict. c. 142,
§ 35. Its procedure was, theretofore, regulated by Acts
and Rules peculiar to itself ; but by the above enactment,
re-enacted by section 185 of the County Courts Act, 1888,
it becomes to all intents and purposes a county court.
Wharton.
SHERIFF'S JURY. In practice. A jury composed
of no determinate number, but which may be
more or less than twelve, summoned by the sher-
iff for the purposes of an inquisition or inquest
of office. 3 Bl.Comm. 258.
SHERIFF'S OFFICERS. Bailiffs, who are either
bailiffs of hundreds or bound-bailiffs.
SHERIFF'S SALE. See Sale.
SHERIFF'S TOURN. A court of record in Eng-
land, formerly held twice every year, within a
month after Easter and Michaelmas, before the
sheriff, in different parts of the county. It was,
indeed, only the turn or rotation of the sheriff to
keep a court-leet in each respective hundred.
This was the great court-leet of the county, as
the county court is the court-baron; for out of
this, for the ease of the sheriff, was taken the
court-leet or view of frank-pledge. 4 Bl.Comm.
273. It was obsolete in Coke's time, but was
not abolished till 1887. It had a limited criminal
jurisdiction.
SHERIFFALTY, or SHRIEVALTY. The time of
a man's being sheriff. Cowell. The term of a
sheriff's office. Also, the office itself.
SHERIFFWICK. The jurisdiction of a sheriff.
Called, in modern law, "bailiwick." The office of
a sheriff.
SHERRERIE. A word used by the authorities
of the Roman Church, to specify contemptuously
the technical parts of the law, as administered
by non-clerical lawyers. Wharton.
SHEWER. In the practice of the English high
court, when a view by a jury is ordered, persons
are named by the court to show the property to
be viewed, and are hence called "shewers." There
is usually a shewer on behalf of each party.
Archb.Pr. 339, et seq.
SHEWING. In English law. To be quit of at-
tachment in a court, in plaints shewed and not
avowed. Obsolete.
SHIFT MARRIAGE. When a man died having
debts which his widow was unable to pay, she
was obliged, if she contracted a second marriage,
to leave her clothes in the hands of the creditors,
and to go through the ceremony in her shift.
Gradually, however, the ceremony was mitigated
by the bridegroom lending her clothes for the oc-
casion. Said by Lecky, Hist. of Eng. 18th Cent.,
IV, p. 23, to be a curious relic of a standard of
commercial integrity which had long since passed
away.
SHIFTING. Changing; varying; passing from
one person to another by substitution.
SHIFTING CLAUSE. In a settlement, a clause
by which some other mode of devolution is substi-
tuted for that primarily prescribed. Examples of
shifting clauses are: The ordinary name and arms
clause, and the clause of less frequent occurrence
by which a settled estate is destined as the foun-
dation of a second family, in the event of the eld-
er branch becoming otherwise enriched. These
shifting clauses take effect under the statute of
uses. Sweet.
SHIFTING RISK. In insurance, a risk created by
a contract of insurance on a stock of merchandise,
or other similar property, which is kept for sale,
or is subject to change in items by purchase and
sale; the policy being conditioned to cover the
goods in the stock at any and all times and not
to be affected by changes in its composition.
Farmers' etc., Ins. Ass'n v. Kryder, 5 Ind.App.
430, 31 N.E. 851, 51 Am.St.Rep. 284.
SHIFTING SEVERALTY. See Severalty.
SHIFTING STOCK OF MERCHANDISE. A
stock of merchandise subject to change from time
to time, in the course of trade by purchases, sales,
or other transactions. Laderburg v. Miller, C.C.A.
Va., 210 F. 614, 617.
SHIFTING THE BURDEN OF PROOF. Trans-
ferring it from one party to the other, or from one
side of the case to the other, when he upon whom
it rested originally has made out a prima facie
case or defense by evidence, of such a character
that it then becomes incumbent upon the other to
rebut it by contradictory or defensive evidence.
SHIFTING USE, See Use,
SHILLING. In English law. The name of an
English coin, of the value of one-twentieth part of
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a pound. This denomination of money was also
used in America, in colonial times, but was not
everywhere of uniform value.
SHIN-PLASTER. Formerly, a jocose term for a
bank-note greatly depreciated in value; also for
paper money of a denomination less than a dollar.
Webster, Dict. See Madison Ins. Co. v. Forsythe,
2 Ind. 483.
SHINNEY. A local name for a homemade whis-
ky. State v. McClinton, 94 So. 141, 142, 152 La.
632.
SHINTO. State religion of Japan.
SHIP, v. To put on board a ship; to send by ship.
Harrison v. Fortlage, 16 S.Ct. 488, 490, 161 U.S.
57, 40 L.Ed. 616. To place (goods) on board of
a vessel for the purchaser or consignee, to be
transported at his risk. Krauter v. Menchaca-
torre, 202 App.Div. 200, 195 N.Y.S. 361, 363.
In a broader sense, to transport. Burton v.
State, 135 Ark. 612, 206 S.W. 51, 52. To deliver
to a common carrier for transportation. State
v. Bayer, 93 Ohio St. 72, 112 N.E. 197, 198; Horner
v. Daily, 77 Ind.App. 378, 133 N.E. 585, 587. To
send away, to get rid of. Bird v. State, 131 Tenn.
518, 175 S.W. 554, 556, Ann.Cas.1917A, 634. To
send by established mode of transportation, as
to "carry," "convey," or "transport," which are
synonymous and defined, respectively, as "to bear
or cause to be borne as from one place to anoth-
er," "to transport from one place to another," and
"to carry or convey from one place to another."
Chicago, R. I. & P. Ry. Co. v. Petroleum Refining
Co., D.C.Ky., 39 F.2d 629, 630.
SHIP, n. A vessel of any kind employed in navi-
gation. In a more restricted and more technical
sense, a three-masted vessel navigated with sails.
U. S. v. Kelly, 4 Wash.C.C. 528, F.Cas.No.15,516.
Nautical men apply the term "ship" to distinguish a
vessel having three masts, each consisting of a lower mast,
a topmast, and a topgallant mast, with their appropriate
rigging. In familiar language, it is usually employed to
distinguish any large vessel, however rigged. Tomlins;
Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30
L.Ed. 501; Swan v. U. S., 19 Ct.C1. 62; The St. Louis,
D.C.Ky., 48 F. 312; Wood v. Two Barges, C.C.La., 46 F.
204, as to what is not a ship.
An agreement to construct an ocean going ship is per-
formed by the construction of an ocean going barge suita-
ble for a cargo carrying steamer, since the hull and spars
constitute the ship. Bell v. First Nat. Bank of Rockport,
Tex.Civ.App., 226 S.W. 1107.
Ex Ship
These words in a contract of sale are not re-
stricted to any particular ship, and by the usage
of merchants simply denote that the property in
the goods shall pass to the buyer upon their leav-
ing the ship's tackle, and that he shall be liable
for all subsequent charges of landing. They do
not constitute a condition of the contract but are
inserted for the benefit of the seller. Harrison
v. Fortlage, 16 S.Ct. 488, 161 U.S. 57, 40 L.Ed.
616.
General Ship
Where a ship is not chartered wholly to one per-
son, but the owner offers her generally to carry
the goods of all comers, or where, if chartered to
one person, he offers her to several subfreighters
for the conveyance of their goods, she is called a
"general" ship, as opposed to a "chartered" one.
Brown. One which is employed by the charterer
or owner on a particular voyage, and is hired to
a number of persons, unconnected with each other
to convey their respective goods to the place of
destination. Alexander Eccles & Co. v. Strachan
Shipping Co., D.C.Ga., 21 F.2d 653, 655; Ward v.
Green, 6 Cow., N.Y., 173, 16 Am.Dec. 437.
Ship-Breaking
In Scotch law. The offense of breaking into a
ship. Arkley, 461.
Ship-Broker
An agent for the transaction of business be-
tween ship-owners and charterers or those who
ship cargoes. Little Rock v. Barton, 33 Ark. 444.
Ship-Chandlery
A term of extensive import, and includes every-
thing necessary to furnish and equip a vessel,
so as to render her seaworthy for the intended
voyage.
Not only stores, stoves, hardware, and crockery have
been held to be within the term, but muskets and other
arms also, the voyage being round Cape Horn to California,
in the course of which voyage arms are sometimes carried
for safety. Weaver v. The S. G. Owens, Pa., 29 F.Cas.
17,310; 29 F.Cas. 489.
Ship-Channel
In rivers, harbors, etc., the channel in which
the water is deep enough for vessels of large
size, usually marked out in harbors by buoys.
The Oliver, D.C.Va., 22 F. 848.
Ship-Damage
In the charter-parties with the English East
India Company, these words occur. Their mean-
ing is, damage from negligence, insufficiency, or
bad stowage in the ship. Abb. Shipp. 204.
Ship-Master
The captain or master of a merchant ship, ap-
pointed and put in command by the owner, and
having general control of the vessel and cargo,
with power to bind the owner by his lawful acts
and engagements in the management of the ship.
Ship-Money
In English law. An imposition formerly levied
on port-towns and other places for fitting out
ships; revived by Charles I., and abolished in
the same reign. 17 Car. I. c. 14.
Ship's-Bill
The copy of the bill of lading retained by the
master. It is not authoritative as to the terms of
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the contract of affreightment; the bill delivered
to the shipper must control, if the two do not
agree. The Thames, 14 Wall. 98, 20 L.Ed. 804.
Ship's Company
A term embracing all the officers of the ship,
as well as the mariners or common seamen, but
not a passenger. U. S. v. Libby, 26 F.Cas. 928;
U. S. v. Winn, 28 F.Cas. 735.
Ship's Husband
In maritime law. A person appointed by the
several part-owners of a ship, and usually one of
their number, to manage the concerns of the ship
for the common benefit. Generally understood
to be the general agent of the owners in regard
to all the affairs of the ship in the home port.
Story, Ag. § 35; 3 Kent, Comm. 151; Webster
v. The Andes, 18 Ohio 187; Muldon v. Whitlock,
1 Cow., N.Y., 307, 13 Am.Dec. 533; 1 Y. & C. 326;
Gould v. Stanton, 16 Conn. 12. He cannot insure
or bind the owners for premiums. Hewett v.
Buck, 17 Me. 147, 35 Am.Dec. 243; 2 Maule &
S. 485; Foster v. Ins. Co., 11 Pick., Mass., 85; 5
Burr. 2627.
Ship's Papers
The papers which must be carried by a vessel
on a voyage, in order to furnish evidence of her
national character, the nature and destination of
the cargo, and of compliance with the naviga-
tion laws. The ship's papers are of two sorts:
Those required by the law of a particular country;
such as the certificate of registry, license, charter-
party, bills of lading and of health, required by
the law of England to be on board all British
ships. These required by the law of nations to be
on board neutral ships, to vindicate their title
to that character; these are the pass port, sea-
brief, or sea-letter, proofs of property, the muster-
roll or role d'equipage, the charter-party, the bills
of lading and invoices, the log-book or ship's jour-
nal, and the bill of health. 1 March. Ins. c. 9, §
6. See, also, Grace v. Browne, C.C.A.N.Y., 86 F.
155.
SHIPMENT. The delivery of the goods within
the time required on some vessel, destined to the
particular port, which the seller has reason to
suppose will sail within a reasonable time. It
does not mean a clearance of the vessel as well
as putting the goods on board where there is
nothing to indicate that the seller was expected
to exercise any control over the clearance of the
vessel or of her subsequent management. Ledon
v. Havemeyer, 121 N.Y. 179, 24 N.E. 297, 8 L.R.A.
245. See L.R. 2 App.Cas. 455; Stubbs v. Lund,
7 Mass. 453, 5 Am.Dec. 63; Lamborn & Co. v. Log
Cabin Products Co., D.C.Minn., 291 F. 435, 438.
The delivery of goods to a carrier and his is-
suance of a bill of lading therefor. Goldenberg
v. Cutler, 189 App.Div. 489, 178 N.Y.S. 522, 523.
A "shipment" does not consist in loading alone, but
consists in complete delivery of goods by the shipper to the
carrier for transportation, and shipment is not made until
the shipper has parted with all control over the goods and
nothing remains to be done by him to complete delivery.
National Importing & Trading Co. v. E. A. Bear & Co., 324
Ill. 346, 155 N.E. 343, 346.
The transportation of goods. Pennsylvania R.
Co. v. Carolina Portland Cement Co., C.C.A.S.C.,
16 F.2d 760, 761.
Also, the property which is the subject of trans-
portation. Pennsylvania R. Co. v. Carolina Port-
land Cement Co., C.C.A.S.C., 16 F.2d 760, 761. An
order. Young v. Flickinger, 75 Cal.App. 171, 242
P. 516, 517. A consignment of goods as delivered
by the carrier. Pennsylvania R. Co. v. Kittan-
ning Iron & Steel Mfg. Co., 263 Pa. 205, 106 A.
207, 208.
SHIPPER. A Dutch word, signifying the master
of a ship. It is mentioned in some statutes, and
is now generally called "skipper." Tomlins.
One who ships goods; one who puts goods
on board of a vessel, for carriage to another
place during her voyage and for delivery there,
by charter-party or otherwise. One who signs a
bill of lading as "shipper," unless the coVrary
appears, is presumably the consignor. New Y-ork
Cent. R. Co. v. Singer Mfg. Co., 3 N.J.M. 1137, 131
A. 111, 114.
Under federal statutes, one is a "shipper" who, although
a consignee, exercises such direct control over shipments
of commodities consigned to him by another as enables
him, by his own act, to procure for himself discriminations
in respect to transportation service. U. S. v. Metropolitan
Lumber Co., D.C.N.J., 254 F. 335, 346. Thus, a forwarder
of freight, who sends in his own name all the freight he
can over a carrier, which, in consideration of the business
thus obtained, pays him a commission or salary calculated
on the freight moneys received by the carrier from him, is
a "shipper," and the payment in form of commission or
salary or otherwise is a "rebate" or concession in viola-
tion of the Interstate Commerce Act Feb. 4, 1887, c. 104, §
6, 24 Stat. 380 (49 U.S.C.A. § 6), and Elkins Act Feb. 19,
1903, c. 708, 32 Stat. 847, § 1, as amended by Act June 29,
1906, c. 3591, 34 Stat. 587, § 2 (49 U.S.C.A. § 41). U. S. v.
Lehigh Valley R. Co., D.C.N.Y., 222 F. 685, 686.
SHIPPER'S ORDER. In bills of lading, is well
understood and means that the title remains in
the shipper until he orders a delivery of the goods.
B. W. McMahan & Co. v. State Nat. Bank of Shaw-
nee, Tex.Civ.App., 160 S.W. 403, 404; Bennett v.
Dickinson, 106 Kan. 95, 186 P. 1005.
SHIPPING. Ships in general; ships or vessels of
any kind intended for navigation. Relating to
ships; as, shipping interests, shipping affairs,
shipping business, shipping concerns. Putting on
board a ship or vessel, or receiving on board a
ship or vessel. Webster, Dict.; Worcester, Dict.
Law of Shipping
A comprehensive term for all that part of the
maritime law which relates to ships and the per-
sons employed in or about them. It embraces
such subjects as the building and equipment of
vessels, their registration and nationality, their
ownership and inspection, their employment, (in-
cluding charter-parties, freight, demurrage, tow-
age, and salvage,) and their sale, transfer, and
mortgage; also, the employment, rights, powers,
and duties of masters and mariners; and the
law relating to ship-brokers, ship-agents, pilots,
etc.
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SHIPPING ARTICLES. A written agreement
between the master of a vessel and the mariners,
specifying the voyage or term for which the latter
are shipped, and the rate of wages. See 46 U.S.
C.A. § 564.
SHIPPING COMMISSIONER. An ,officer of the
United States, appointed by the several circuit
courts, within their respective jurisdictions, for
each port of entry (the same being also a port of
ocean navigation), which, in the judgment of such
court, may require the same; his duties being to
supervise the engagement and discharge of sea-
men; to see that men engaged as seamen report
on board at the proper time; to facilitate the ap-
prenticing of persons to the marine service; and
other similar duties, such as may be required by
law. 46 U.S.C.A. §§ 541-549 and notes.
SHIPWRECK. The demolition or shattering of
a vessel, caused by her driving ashore or on rocks
and shoals in the midseas, or by the violence of
winds and waves in tempests. 2 Arn.Ins. p. 734,
SHIRE, A Saxon word which signified a division;
it was made up of an indefinite number of hun-
dreds—later called a county (Comitatus). 1
Steph.Com. 76.
English Law
A county. So called because every county or
shire is divided arid parted by certain metes and
bounds from another. Co.Litt. 50a.
General
Knights of the shire. See that title.
Shire-clerk. He that keeps the county court.
Shire-gemot, scire-gemote, scir-gemot.  (From
the Saxon scir or scyre, county, shire, and gemote,
a court, an assembly.) Variants of scyregemote
(q. v.). See, also, Shire-mote, infra.
Shire-man, or scyre-man. Before the Conquest,
the judge of the county, by whom trials for land,
etc., were determined, Tomlins; Mozley & Whit-
ley.
Shire-mote. The assize of the shire, or the as-
sembly of the people, was so called by the Saxons.
It was nearly if not exactly, the same as the
scyregemote, and in most respects corresponded
with what were afterwards called the "county
courts." Brown.
Shire-reeve (spelled, also, Shire rieve, or Shire
reve). In Saxon law. The reeve or bailiff of the
shire. The viscount of the Anglo-Normans, and
the sheriff of later times. Co.Litt. 168a.
SHOCK. A sudden agitation of the physical or
mental sensibilities. Provident Life and Accident
Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d
292, 295.
Mental Shock
A sudden agitation of the mind; startling emo-
tion, as the shock of a painful discovery, a shock
of grief or joy. Provident Life and Accident Ins.
Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d
292, 295.
Physical Shock
A blow, impact, collision, concussion, or violent
shake or jar, or a violent collision of bodies, or
the concussion caused by it; a sudden striking or
dashing together or against something. Provident
Life and Accident Ins. Co. v, Campbell, 18 Tenn.
App. 452, 79 S.W.2d 292, 295.
Medical Jurisprudence
A sudden depression of the vital forces of
the entire body, or a part of it, marking some
profound impression produced upon the nervous
system, as by severe injury, a surgical opera-
tion, profound emotion, or the like, or a pros-
tration of the bodily functions, as from sudden
injury or mental disturbance. Provident Life &
Accident Ins. Co. v. Campbell, 18 Tenn.App. 452,
79 S.W.2d 292, 295.
SHOOFAA, In Mohammedan law. Pre-emption,
or a power of possessing property which has been
sold, by paying a sum equal to that paid by the
purchaser. Wharton.
SHOOT. To strike with something shot; to hit,
wound, or kill, with a missile discharged from a
weapon; and the missile meant in such cases is
the arrow, bullet, or ball, intended to be discharged
and to strike the object aimed at. A person can-
not be said to have been shot who was not hit by
bullet or ball, but only powder burned by the
weapon discharged. State v. Manuel, 153 La. 7, 95
So. 263, 264. The term generally implies the use
of firearms. Shumake v. State, 90 Fla. 133, 105
So. 314, 315.
SHOP. A building in which goods and merchan-
dise are sold at retail, or where mechanics work,
and sometimes keep their products for sale. State
v. Morgan, 98 N.C. 641, 3 S.E. 927; State v. O'Con-
nell, 26 Ind. 2'67; State v. Sprague, 149 Mo. 409,
50 S.W. 901; Corn. v. Riggs, 14 Gray, Mass., 378,
77 Am.Dec. 333; Richards v. Ins. Co., 60 Mich. 426,
27 N.W. 586. There must be some structure of a
more or less permanent character. 6 B. & S.
303.
The term is properly applied to a place of manufacture
or repair, such as a roundhouse, Koecher v. Minneapolis,
St. P. & S. S. M. Ry. Co., 122 Minn. 458, 142 N.W. 874, 876,
or a building used for repairing automobiles and for the
sale of automobile parts, gas, and oil, State v. Garon, 161
La. 867, 109 So. 530, 532. But it is not strictly applicable
to a garage, State v. Garon, 158 La. 1014, 105 So. 47, 48,
nor to a restaurant, even though the restaurant also en-
gages in the sale of cigars, Debenham v. Short, Tex.Civ.
App., 199 S. W. 1147.
The word "shop" in its popular as well as legal meaning
is not confined to a workshop, but is a word of various sig-
nificance, and "store" and "workshop" are both included
in it and do not exhaust its meaning. A place kept and
used for the sale of goods may be rightly denominated a
"shop". Commonwealth v. Moriarty, 311 Mass. 116, 40
N.E.2d 307, 308.
SHOP RIGHT. In patent law. The right of an
employer to use employee's invention in employ-
er's business without payment of royalty. Ash-
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land Oil & Refining Co. v. Dorton, 300 Ky. 385, 189
S.W.2d 394.
It cannot come into existence unless the inventor was an
employee of the one claiming the right at the time when
the invention was made and reduced to practice. Crom v.
Cement Gun Co., D.C.Del., 46 F.Supp. 403, 405.
SHOPA. In old records, a shop. Cowell.
SHOP-BOOK RULE. An exception to the hearsay
evidence rule, permitting the introduction in evi-
dence of books of original entry made in the usual
course of business, and introduced from proper
custody and upon general authentication. Clay-
ton v. Metropolitan Life Ins. Co., 96 Utah 331, 85
P.2d 819, 822, 120 A.L.R. 1117.
SHOP-BOOKS. Books of original entry kept by
trademen, shop-keepers, mechanics, and the like,
in which are entered their accounts and charges
for goods sold, work done, etc., commonly called
"account-books," or "books of account." The term
does not include the stubs of a check book and
entries thereon, McWhorter v. Tyson, 203 Ala.
509, 83 So. 330, 333, nor the book and entries of
an express messenger, Rhoades v. New York Cent.
& H. R. R. R., 227 Mass. 138, 116 N.E. 244, 245.
SHOPKEEPER. Whether a person who buys
and sells commodities as a business is a merchant
or a shopkeeper depends on the extent, and not on
the character, of his business; if his business is
large he is a "merchant," and if it is small he is
a "shopkeeper." White Mountain Fur Co. v. Town
of Whitefield, 77 N.H. 340, 91 A. 870, 871.
SHORE. Land on the margin of the sea, a lake,
or a river,—especially a large river, in which the
water ebbs and flows. Galveston v. Menard, 23
Tex. 349; Bell v. Gough, 23 N.J.L. 683.
Strictly and technically, lands adjacent to the
sea or other tidal waters; the lands adjoining nav-
igable waters, where the tide flows and reflows,
which at high tides are submerged, and at low
tides are bare. Shively v. Bowlby, 14 S.Ct. 548, 152
U.S. 1, 38 L.Ed. 331; Mather v. Chapman, 40 Conn.
400, 16 Am.Rep. 46; Axline v. Shaw, 35 Fla. 305, 17
So. 411, 28 L.R.A. 391. The space bounded by the
high and low water marks. La Porte v. Menacon,
220 Mich. 684, 190 N.W. 655, 656; Sinford v. Watts,
123 Me. 230, 122 A. 573, 574; Borax Consolidated
v. City of Los Angeles, Cal., 56 S.Ct. 23, 296
U.S. 101, 80 L.Ed. 9. And this is also true even
though the lands may lie along nonnavigable
bodies of water. Hunter v. Van Keuren, 130
Misc. 599, 224 N.Y.S. 153, 160.
Sea-shore is that space of land over which the waters of
the sea spread in the highest water, during the winter sea-
son. Civ.Code La. art. 451.
Under the civil law the "shore line" boundary of lands
adjoining navigable waters is the line marked by the high-
est tide. Dincans v. Keeran, Tex.Civ.App., 192 S.W. 603,
604.
In connection with salvage, "shore" means the land on
which the waters have deposited things which are the sub-
ject of salvage, whether below or above ordinary high-
water mark. The Gulfport, D.C.Ala., 243 F. 676, 680.
SHORE LANDS. Those lands lying between
the lines of high and low water mark. State v.
Sturtevant, 76 Wash. 158, 135 P. 1035, 1036. Lands
bordering on the shores of navigable lakes and
rivers below the line of ordinary high water.
Rem. & Bal.Code, Wash., § 6641 (Rem.Rev.Stat.
§ 7833).
SHORT. Not long; of brief length; brief; not
coming up to a measure, standard, requirement,
or the like. Webster, Dict.
A term of common use in the stock and pro-
duce markets. To say that one is "short," in the
vernacular of the exchanges, implies only that
one has less of a commodity than may be nec-
essary to meet demands and obligations. It does
not imply that commodity cannot or will not be
supplied upon demand. Thomas v. McShan, 99
Okl. 88, 225 P. 713, 714.
SHORT CAUSE. A cause which is not likely to
occupy a great portion of the time of the court,
and which may be entered on the list of "short
causes," upon the application of one of the parties,
and will then be heard more speedily than it would
be in its regular order. This practice obtains in
the English chancery and in some of the American
states. The time allowed for the hearing varies
in the different courts.
SHORT ENTRY. A custom of bankers of enter-
ing on the customer's pass-book the amount of
notes deposited for collection, in such a manner
that the amount is not carried to the latter's gen-
eral balance until the notes are paid. Giles v. Per-
kins, 9 East, 12; Blaine v. Bourne, 11 R.I. 121, 23
Am.Rep. 429.
SHORT LEASE. A term applied colloquially, but
without much precision, to a lease for a short
term, (as a month or a year,) as distinguished
from one running for a long period.
SHORT NOTICE. In practice. Notice of less
than the ordinary time; generally of half that
time. 2 Tidd, Pr. 757. In English Practice, four
days' notice of trial. Wharton, Law Diet.  No-
tice of trial. 1 Cr. & M. 499.
SHORT RATE. Cancellation of insurance policy.
Where insurance policy is mutually rescinded by
both parties and new policy contract, identical
with original, save for shortened term and lessen-
ed earned premium, is re-issued and substituted
for original contract. Keehn v. Hi-Grade Coal &
Fuel Co., 23 N.J.Misc. 102, 41 A.2d 525, 532.
SHORT SALE. A contract for sale of shares of
stock which the seller does not own, or certificates
for which are not within his control, so as to be
available for delivery at the time when, under
rules of the exchange, delivery must be made.
Provost v. U. S., 46 S.Ct. 152, 153, 269 U.S. 443, 70
L.Ed. 352; Chandler v. Prince, 221 Mass. 495, 109
N.E. 374, 378. In a "short sale" the broker may
make a delivery of bonds or stock, charging the
price thereof to the customer, and the account
is carried until the customer orders the broker to
repurchase the bonds, and an adjustment is made
between the broker and customer on the difference
between the selling and purchasing price. Brown
v. Carpenter, 182 App.Div. 650, 168 N.Y.S. 921, 923.
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SI CONSTET
SHORT SUMMONS. A process, authorized in
some of the states, to be issued against an abscond-
ing, fraudulent, or nonresident debtor, which is re-
turnable within a less number of days than an
ordinary writ of summons.
SHORTFORD. An old custom of the city of Ex-
eter, similar to that of gavelet in London, which
was a mode of foreclosing the right of a tenant
by the chief lord of the fee, in cases of non-pay-
ment of rent. Cowell.
SHORTLY AFTER. In point of time, a relative
term, meaning in a short or brief time or man-
ner; soon; presently; quickly. Chittenden Coun-
ty Trust Co. v. Hurd, 93 Vt. 71, 106 A. 564, 565.
SHOT. A projectile, particularly a solid ball or
bullet that is not intended to fit the bore of a
piece; also such prejectiles collectively. Green
v. Commonwealth, 122 Va. 862, 94 S.E. 940, 941.
SHOTGUN. A smooth-bore gun, often double-
barreled, and now almost universally breach-load-
ing, designed for firing shots at short range and
killing small game, especially birds. Henderson
v. State, 75 Fla. 464, 78 So. 427, 428.
SHOULD. The past tense of shall, St. Louis &
S. F. R. Co. v. Brown, 45 Old. 143, 144 P. 1075,
1080, ordinarily implying duty or obligation; Scar-
borough v. Walton, 36 Ga.App. 428, 136 S.E. 830.
Kippenbrock v. Wabash R. Co., 270 Mo. 479, 194 S.
W. 50, 51; although usually no more than an ob-
ligation of propriety or expediency, or a moral
obligation, thereby distinguishing it from "ought,"
U. S. v. Stickrath, D.C.Ohio, 242 F. 151, 153. It is
not normally synonymous with "may", Williams
v. Mt. Vernon Car Mfg. Co., 197 Ill.App. 271, 272;
Elliott v. Ma y es, 196 Ill.App. 605, 606; and al-
though often interchangeable with the word
"would," Barnett v. Savannah Electric Co., 15
Ga.App. 270, 82 S.E. 910, 911, it does not ordinarily
express certainty as "will" sometimes does. Hub-
bard v. Turner Department Store Co., 220 Mo.App.
95, 278 S.W. 1060, 1061.
SHOW, n. Something that one views or at which
one looks and at the same time hears. Longwell
v. Kansas City, 199 Mo.App. 480, 203 S.W. 657, 659.
SHOW, v. To make apparent or clear by evi-
dence; to prove. Coyle v. Com., 104 Pa. 133. It
may be equivalent to the words "reasonably sat-
isfy," Birmingham Ry., Light & Power Co. v. Co-
hill, 196 Ala. 278, 72 So. 126, but is not synony-
mous with "state"; Chapin v. State, 107 Tex.Cr.
R. 477, 296 S.W. 1095, 1099; Chumbley v. Courtney,
181 Iowa, 482, 164 N.W. 945, 946.
Although the words "show" and "indicate" are some-
times interchangeable in popular use, they are not always
so. To "show" is to make apparent or clear by evidence,
to prove; while an "Indication" may be merely a symp-
tom; that which points to or gives direction to the mind.
Coyle v. Corn., 104 Pa. 133. "Show" means to point out, or
make known by evidence. Commonwealth v. Delfino, 259
Pa. 272, 102 A. 949, 952.
SHOW CAUSE. Against a rule nisi, an order,
decree, execution, etc., is to appear as directed,
and present to the court such reasons and consid-
erations as one has to offer why it should not
be confirmed, take effect, be executed, or as the
case may be.
SHOWER. One who accompanies a jury to the
scene to call the attention of the jurors to spe-
cific objects to be noted. Snyder v. Mass., 54 S.Ct.
330.
SHRUB. A low, small plant, the branches of
which grow directly from the earth without any
supporting trunk, or stem. Clay v. Tel. Cable Co.,
70 Miss. 406, 11 So. 658.
SHUT DOWN. To stop work;—usually said of a
factory, etc. Webster, Dict.
Thus, within the meaning of an insurance policy, a saw
mill which has stopped running for the winter is shut
down, though men are employed about the premises and
the machinery has not been dismantled. McKenzie v. Ins.
Co., 112 Cal. 548, 44 P. 922.
SHY. To start suddenly aside through fright or
suspicion; said especially of horses. San Antonio
Machine & Supply Co. v. McKinley, Tex.Civ.App.,
239 S.W. 340, 342.
SHYSTER. A trickish knave; one who carries
on any business, especially a legal business, in a
dishonest way. Gribble v. Press Co., 34 Minn. 343,
25 N.W. 710; Nolan v. Standard Pub. Co., 67 Mont.
212, 216 P. 571, 574. An unscrupulous practitioner
who disgraces his profession by doing mean work,
and resorts to sharp practice to do it. Bailey v.
Kalamazoo Pub. Co., 40 Mich. 251.
SI A JURE DISCEDAS, VAGUS ERIS, ET ER-
UNT OMNIA OMNIBUS INCERTA. If you de-
part from the law, you will go astray, and all
things will be uncertain to everybody. Co.Litt.
227b.
SI ACTIO. Lat. The conclusion of a plea to an
action when the defendant demands judgment, if
the plaintiff ought to have his action, etc. Ob-
solete.
SI ALICUJUS REI SOCIETAS SIT ET FINIS NE-
GOTIO IMPOSITUS EST, FINITUR SOCIETAS.
If there is a partnership in any matter, and the
business is ended, the partnership ceases. Gris-
wold v. Waddington, 16 Johns, N.Y., 438, 489.
SI ALIQUID EX SOLEMNIBUS DEFICIAT, CUM
AEQUITAS POSCIT, SUBVENIENDUM EST. If
any one of certain required forms be wanting,
where equity requires, it will be aided. The want
of some of a neutral vessel's papers is strong pre-
sumptive evidence against the ship's neutrality,
yet the want of any one of them is not absolutely
conclusive. 1 Kent, Comm. 157.
SI ALIQUID SAPIT. Lat. If he knows anything;
if he is not altogether devoid of reason.
SI ASSUETIS MEDERI POSSIS, NOVA NON
SUNT TENTANDA. If you can be relieved by
accustomed remedies, new ones should not be
tried. If an old wall can be repaired, a new one
should not be made. 10 Coke, 142b.
SI CONSTET DE PERSONA. Lat. If it be cer-
tain who is the person meant.
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SI CONTINGAT
SI CONTINGAT. Lat. If it happen. Words of
condition in old conveyances. 10 Coke, 42a.
SI DUO IN TESTAMENTO PUGNANTIA REP-
ERIENTUR, ULTIMUM EST RATUM. If two
conflicting provisions are found in a will, the last
is observed. Lofft 251.
SI FECERIT TE SECURUM. Lat. If he make
you secure. In practice. The initial and emphatic
words of that description of original writ which
directs the sheriff to cause the defendant to ap-
pear in court, without any option given him, pro-
vided the plaintiff gives the sheriff security ef-
fectually to prosecute his claim. 3 Bl.Comm. 274.
SI INGRATUM DIXERIS, OMNIA DIXERIS. If
you affirm that one is ungrateful, in that you in-
clude every charge. A Roman maxim. Tray.
Lat. Max.
SI ITA EST. Lat. If it be so. Emphatic words
in the old writ of mandamus to a judge, com-
manding him, if the fact alleged be truly stated,
(si ita est,) to affix his seal to a bill of exceptions.
Ex parte Crane, 5 Pet. 192, 8 L.Ed. 92.
SI JUDICAS, COGNOSCE. If you judge, under-
stand.
SI MELIORES SUNT QUOS DUCIT AMOR,
PLURES SUNT QUOS CORRIGIT TIMOR. If
those are better who are led by love, those are
the greater number who are corrected by fear.
Co.Litt. 392.
SI NON APPAREAT QUID ACTUM EST, ERIT
CONSEQUENS UT ID SEQUAMUR QUOD IN
REGIONE IN QUA ACTUM EST FREQUENTA-
TUR. If it does not appear what was agreed up-
on, the consequence will be that we must follow
that which is the usage of the place where the
agreement was made. Dig. 50, 17, 34.
SI NON WINES. Lat. In English practice. A
writ of w---ociation of justices whereby, if all in
commissit,ii cannot meet at the day assigned, it is
allowed that two or more may proceed with the
business. Cowell; Fitzh.Nat.Brev. 111 C.
SI NULLA SIT CONJECTURA QUIS DUCAT
ALIO, VERBA INTELLIGENDA SUNT EX PRO-
PRIETATE, NON GRAMMATICA SED POPU-
LAR! EX USU. If there be no inference which
leads to a different result, words are to be under-
stood according to their proper meaning, not in a
grammatical, but in a popular and ordinary, sense,
2 Kent, Comm. 555.
SI PARET. Lat. If it appears. In Roman law.
Words used in the formula by which the praetor
appointed a judge, and instructed him how to de-
cide the cause.
SI PLURES CONDITIONES ASCRIPTIE FUER-
UNT DONATIONI CONJUNCTIM, OMNIBUS
EST PARENDUM; ET AD VERITATEM COPU-
LATIVE REQVIRITUR QUOD UTRAQUE PARS
SIT VERA, SI DIVISIM, QUILIBET VEL AL-
TERI EORUM SATIS EST OBTEMPERARE; ET
IN DISJUNCTIVIS, SUFFICIT ALTERAM PAR-
TEM ESSE VERAM. If several conditions are
conjunctively written in a gift, the whole of them
must be complied with; and with respect to their
truth, it is necessary that every part be true, tak-
en jointly; if the conditions are separate, it is
sufficient to comply with either one or other of
them; and being disjunctive, that one or the
other be true. Co.Litt. 225.
SI PLURES SINT FIDEJUSSORES, QUOTQUOT
ERUNT NUMERO, SINGULI IN SOLIDUM TEN-
ENTUR. If there are more sureties than one,
how many soever they shall be, they shall each be
held for the whole. Inst. 3, 20, 4.
SI PRIUS. Lat. In old practice. If before. For-
mal words in the old writs for summoning juries.
Fleta, 1. 2, c. 65, § 12.
SI QUID UNIVERSITATI DEBETUR SINGULIS
NON DEBETUR, NEC QUOD DEBET UNIVERS-
ITAS SINGULI DEBENT. If anything be owing
to an entire body [or to a corporation], it is not
owing to the individual members; nor do the
individuals owe that which is owing by the entire
body. Dig. 3, 4, 7, 1; 1 Bla.Comm. 484; Lindl.
Part. *5.
SI QUIDEM IN NOMINE, COGNOMINE, PRZE-
NOMINE LEGATARII TESTATOR ERRAVERIT,
CUM DE PERSONA CONSTAT, NIHILOMINUS
VALET LEGATUM. Although a testator may
have mistaken the nomen, cognomen, or prcenom-
en of a legatee, yet, if it be certain who is the
person meant, the legacy is valid. Inst. 2, 20, 29;
Broom, Max. 645; 2 Domat b. 2, 1, s. 6, §§ 10, 19.
SI QUIS. Lat. In the civil law. If any one.
Formal words in the pmtorian edicts. The word
"quis," though masculine in form was held to
include women. Dig. 50, 16, 1.
SI QUIS CUM TOTUM PETIISSET PARTEM
PETAT, EXCEPTIO REI JUDICAT1E VOCET. If
a party, when he should have sued for an entire
claim, sues only for a part, the judgment is res
judicata against another suit. 2 Mart. O. S. (La.)
83.
SI A TUTELA REMOVENDUS EST. Jenk.Cent.
39. If a guardian do fraud to his ward, he shall be
removed from his guardianship.
SI QUIS CUSTOS FRAUDEM PUPILLO FECER-
SI QUIS PRZEGNANTEM UXOREM RELIQUIT,
NON VIDETUR SINE LIBERIS DECESSISSE.
If a man dies, leaving his wife pregnant, he shall
not be considered to have died without children.
A rule of the civil law.
SI QUIS, UNUM PERCUSSERIT, CUM ALIUM
PERCUTERE VELLET, IN FELONIA TENETUR..
3 Inst. 5L If a man kill one, meaning to kill an-
other, he is held guilty of felony.
SI RECOGNOSCAT. Lat. If he acknowledge.
In old practice. A writ which lay for a creditor
against his debtor for money numbered (pecunia
numerata) or counted; that is, a specific sum of
money, which the debtor had acknowledged in
the county court, to owe him, as received in pe-
cuniis numeratis. Cowell.
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SIDE-BAR
SI SUGGESTIO NON SIT VERA, LITER)E PA-
TENTES VACUIE SUNT. 10 Coke, 113. If the
suggestion be not true, the letters patent are void.
SI TE FECERIT SECURUM. If he make you se-
cure. See Si Fecerit to Securum.
SIB. Sax. A relative or kinsman. Used in the
Scotch tongue, but not now in English.
SIC. Lat. Thus; so; in such manner.
SIC ENIM DEBERE QUEM MELIOREM AGRUM
SUUM FACERE NE VICINI DETERIOREM FA-
CIAT. Every one ought so to improve his land
as not to injure his neighbor's. 3 Kent, Comm.
441. A rule of the Roman law.
SIC INTERPRETANDUM EST UT VERBA AC-
CIPIANTUR CUM EFFECTU. 3 Inst. 80. [A
statute] is to be so interpreted that the words
may be taken with effect.
SIC SUBSCRIBITUR. Lat. In Scotch practice.
So it is subscribed. Formal words at the end of
depositions, immediately preceding the signature.
1 How. State Tr. 1379.
SIC UTERE TUO UT ALIENUM NON LIEDAS.
Use your own property in such a manner as not
to injure that of another. 9 Coke, 59; 1 Bl.Comm.
306; Broom, Max. 268, 365; Webb, Poll. Torts 153;
2 Bouv.Inst. n. 2379; 5 Exch. 797; 12 Q.B. 739;
4 A. & E. 384; 17 Mass. 334; 4 McCord., S.C., 472.
Various comments have been made on this maxim:
"Mere verbiage"; El. B. & E. 643. "No help to
decision"; L. R. 2 Q.B. 247. "Utterly useless as
a legal maxim"; 9 N.Y. 445. It is a mere begging
of the question; it assumes the very point in
controversy. 13 Lea 507. See 2 Aust.Jurisp.
795, 829.
SICH. A little current of water, which is dry in
summer; a water furrow or gutter. Cowell.
SICIUS. A sort of money current among the an-
cient English, of the value of 2d.
SICK. Affected with disease, ill, indisposed.
State v. Douglas, 124 Kan. 482, 260 P. 655, 657.
See Sickness.
SICKNESS. Disease; malady; any morbid con-
dition of the body (including insanity) which, for
the time being, hinders or prevents the organs
from normally discharging their several func-
tions. L. R. 8 Q. B. 295. Any affection of the
body which deprives it temporarily of the power
to fulfill its usual functions, Martin v. Waycross
Coca-Cola Bottling Co., 18 Ga.App. 226, 89 S.E.
495, 496, including injury, Doody v. Davie, 77 Cal.
App. 310, 246 P. 339, 340; contra, Poole v. Imper-
ial Mut. Life & Health Ins. Co., 188 N.C. 468, 125
S.E. 8. See, also, Beaudoin v. La Societe St. Jean
Baptiste de Bienfaisance de Biddeford, 116 Me. 428,
102 A. 234, 235, L.R.A.1918B, 641, limiting the term
to those disabilities which are the natural results
of disease arising from a pathological condition,
and Northwestern Mut. Life Ins. Co. v. Wiggins,
C.C.A.Or., 15 F.2d 646, 648, defining sickness as a
condition interfering with one's usual avocations.
Illness; an ailment of such a character as to
affect the general soundness and health; not a
mere temporary indisposition, which does not tend
to undermine and weaken the constitution. Na-
tional Live Stock Ins. Co. v. Bartlow, 60 Ind.App.
233, 110 N.E. 224, 225.
In construing a sickness indemnity policy, there may be
said to be three degrees of sickness : First, when the pa-
tient is confined to his bed; second, when he is confined
to the house, but not to his bed; and, third, when he is
too sick to work, but not confined to the house. Rocci v.
Massachusetts Ace. Co., 226 Mass. 545, 116 N.E. 477, 479.
SICUT ALIAS. Lat. As at another time, or here-
tofore. This was a second writ sent out when the
first was not executed. Cowell.
SICUT ME DEUS ADJUVET. Lat. So help me
God. Fleta, 1. 1, c. 18, § 4.
SICUT NATURA NIL FACIT PER SALTUM, ITA
NEC LEX. Co.Litt. 238. In the same way as na-
ture does nothing by a bound, so neither does the
law.
SIDDI. In the Orient, a name for marihuana.
See Mariguana.
SIDE. The margin, edge, verge, or border of a
surface; any one of the bounding lines of the
surface. Parkman v. Freeman, 121 Me. 341, 117
A. 301, 302.
"Side" may be used in a generic sense so as to include
the "front," but it also has a specific meaning which dis-
tinguishes it from "front." The word "front" as applied
to a house is always specific and speaking of the "side
line" of a house as "fronting" toward the street is incor-
rect. Howland v. Andrus, 81 N.J.Eq. 175, 86 A. 391, 393.
The front of a lot is that portion opposite the rear of the
lot and facing on the street, and the side is that portion
adjacent to the lot or lots on either side of it. Turney v.
Shriver, 269 Ill. 164, 109 N.E. 708, 709.
The party or parties collectively to a lawsuit
considered in relation to his or their opponents,
i. e., the plaintiff side, or the defendant side.
Carr v. Davis, 159 Minn. 485, 199 N.W. 237, 239.
A province or field of jurisdiction;—said of
courts. Thus, the same court is sometimes said to
have different sides. An admiralty court may
have an "instance side," distinct from its powers
as a prize court; the "crown side," (criminal ju-
risdiction) is to be distinguished from the "plea
side," (civil jurisdiction; ) the same court may
have an "equity side" and a "law side."
SIDE-BAR RULES. In English practice. There
are some rules which the courts authorize their
officers to grant as a matter of course without
formal application being made to them in open
court, and these are technically termed "side-bar
rules," because formerly they were moved for by
the attorneys at the side bar in court; such, for
instance, was the rule to plead, which was an or-
der or command of the court requiring a defend-
ant to plead within a specified number of days.
Such also were the rules to reply, to rejoin, and
many others, the granting of which depended up-
on settled rules of practice rather than upon the
discretion of the courts, all of which have been
rendered unnecessary by statutory changes.
Brown, voc. "Rule."
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SIDE-KICKER
SIDE-KICKER. A coined expression without any
standing in lexicology, which the court, as a mat-
ter of common knowledge, can say is not an un-
common vernacular or colloquial expression which
may with equal propriety express a social rela-
tionship between the parties to whom it is applied,
or convey the idea that they are business part-
ners or have business interests in common.
Spoon v. Sheldon, 27 Cal.App. 765, 151 P. 150, 152.
SIDE LINES. In commercial usage, lines of
goods sold or businesses followed in addition to
one's principal articles or occupation. Merrimac
Mfg. Co. v. Bibb, 124 Ark. 189, 186 S.W. 817, Ann.
Cas.1918C, 951. In mining law, the side lines of
a mining claim are those which measure the ex-
tent of the claim on each side of the middle of the
vein at the surface. They are not necessarily the
side lines as laid down on the ground or on a map
or plat; for if the claim, in its longer dimension,
crosses the vein, instead of following it, the plat-
ted side lines will be treated in law as the end
lines, and vice versa. Argentine Min. Co. v. Ter-
rible Min. Co., 7 S.Ct. 1356, 122 U.S. 478, 30 L.Ed.
1140; Del Monte Min. Co. v. Last Chance Min.
Co., 18 S.Ct. 895, 171 U.S. 55, 43 L.Ed. 72.
SIDE REPORTS. A term sometimes applied to
unofficial volumes or series of reports, as con-
trasted with those prepared by the official report-
er of the court, or to collections of cases omitted
from the official reports.
SIDESMEN. In ecclesiastical law. These were
originally persons whom, in the ancient episcopal
synods, the bishops were wont to summon out of
each parish to give information of the disorders
of the clergy and people, and to report heretics.
In process of time they became standing officers,
under the title of "synodsmen," "sidesmen," or
"questmen." The whole of their duties seems now
to have devolved by custom upon the church-war-
dens of a parish. 1 Burn. Ecc.Law, 399.
SIDEWALK. That part of a public street or high-
way designed for the use of pedestrians, City of
Birmingham v. Shirley, 209 Ala. 305, 96 So. 214,
215; being exclusively reserved for them, and
constructed somewhat differently than other por-
tions of the street used by animals and vehicles
generally, Central Life Assur. Soc. of the United
States v. City of Des Moines, 185 Iowa 573, 171
N.W. 31, 32. That part of the street of a munici-
pality which has been set apart and used for ped-
estrians, as distinguished from that portion set
apart and used for animals and vehicles. Graham.
v. Albert Lea, 48 Minn. 201, 50 N.W. 1108; McCor-
mick v. Allegheny County, 263 Pa. 146, 106 A.
203, 204. A way for foot passengers, or a public
way especially intended for pedestrians. Russo v.
City of Pueblo, 63 Colo. 519, 168 P. 649, 650. A
walk for foot passengers at the side of a street
or road. Kohlhof v. Chicago, 192 Ill. 249, 61 N.E.
446, 85 Am.St.Rep. 335; Challiss v. Parker, 11 Kan.
391; State v. Berdetta, 73 Ind. 185, 38 Am.Rep. 117;
Pequignot v. Detroit, C.C.Mich., 16 F. 212.
Generally the sidewalk is included with the gutters and
roadway in the general term street. In re Burmeister, 76
N.Y. 174; Warner v. Knox, 50 Wis. 429, 7 N.W. 372; Wiles
v. Hoss, 114 Ind. 371, 16 N.E. 800. But in many cases of
municipal ordinances and contracts the word street is held
not to include sidewalks. Barry v. City of Cloverport, 175
Ky. 548, 194 S. W. 818, 819. See, also, James v. City of
Newberg, 101 Or. 616, 201 P. 212.
SIEN. An obsolete form of the word "scion,"
meaning offspring or descendant. Co.Litt. 123a.
SIERVO. Span. In Spanish law. A slave. Las
Partidas, pt. 4, tit. 21, 1. 1.
SIETE PARTIDAS. Span. Seven parts. See
Las Partidas.
SIGHT. The power of seeing; the faculty of
vision or of perceiving objects; or the act of see-
ing, and perception of objects through the eyes.
Locomotive Engineers' Mute Life & Accident Ins.
Co. v. Meeks, 157 Miss. 97, 127 So. 699, 703.
Presentment. Bills of exchange are frequently
drawn payable at sight or certain number of days
or months after sight.
When a bill of exchange is expressed to be payable "at
sight," it means on presentment to the drawee. Campbell
v. French, 6 Term, 212.
After sight in a bill means after acceptance; in a note,
after exhibition to the maker. Dan.Neg.Instr. § 619. A
bill drawn payable a certain number of days after sight,
acceptance waived, must be presented to fix the time at
which the bill is to become due, and the term of the bill
begins to run from the date of present. 4 Montreal L.
Rep. 249.
SIGHT DRAFTS OR BILLS. Those payable at
sight.
SIGIL. In old English law, a seal, or a contracted
or abbreviated signature used as a seal.
SIGILLUM. Lat. In old English law. A seal;
originally and properly a seal impressed upon
wax.
SIGILLUM EST CERA IMPRESSA, QUIA CERA
SINE IMPRESSIONE NON EST SIGILLUM. A
seal is a piece of wax impressed, because wax
without an impression is not a seal. 3 Inst. 169.
SIGLA. Lat. In Roman law. Marks or signs
of abbreviation used in writing. Cod. 1, 17, 11,
13.
SIGN. To affix one's name to a writing or in-
strument, for the purpose of authenticating it, or
to give it effect as one's act. McCall v. Textile
Industrial Institute, 189 N.C. 775, 128 S.E. 349, 353.
To attach a name or cause it to be attached to a
writing by any of the known methods of impress-
ing a name on paper. In re Covington Lumber
Co., D.C.Wash., 225 F. 444, 446. To affix a signa-
ture to; to ratify by hand or seal; to subscribe in
one's own handwriting. Webster, Dict.; Knox's
Estate, 131 Pa. 230, 18 A. 1021, 6 L.R.A. 353, 17
Am.St.Rep. 798; In re Manchester's Estate, 174
Cal. 417, 163 P. 358, 359, L.R.A.1917D, 629, Ann.Cas.
1918B, 227. See, also, Miner v. Larney, 87 N.J.L.
40, 94 A. 26, 28.
To make any mark, as upon a document, in
token of knowledge, approval, acceptance, or ob-
ligation. In re Manchester's Estate, 174 Cal. 417,
163 P. 358, 360, L.R.A.1917D, 62,9, Ann.Cas.1918B,
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SIGNUM
227; Weiner v. Mullaney, 59 Cal.App.2d 620, 140
P.2d 704, 712. See, also, Pugh v. Jackson, 154 Ky.
772, 159 S.W. 600; and In re Kimmel's Estate, 278
Pa. 435, 123 A. 405, 406, 31 A.L.R. 678, with which
compare In re Brennan's Estate, 244 Pa. 574, 91 A.
220, 222. See Signature.
To "sign" is merely to write one's name on paper, or
declare assent or attestation by some sign or mark, and
does not, like "subscribe," require that one should write
at the bottom of the instrument signed. Sheehan v. Kear-
ney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102; Robins v. Cor-
yell, 27 Barb., N.Y., 560; James v. Patten, 6 N.Y. 9, 55
Am. Dec. 376; In re Phelan's Estate, 82 N.J.Eq. 316, 87 A.
625, 626. But compare in re Manchester's Estate, 174 Cal.
417, 163 P. 358, 359, L.R.A.1917D, 629, Ann.Cas.1918B, 227.
The word "subscribed" is more restricted than the word
"signature." The word "signature" in its origin involves
merely a sign, the word "subscribed" involves a writing.
The signing of a written instrument has a much broader
and more extended meaning than attaching one's written
signature to it implies. When a person attaches his name
or causes it to be attached to a writing by any of the
known methods of impressing his name upon paper with
the intention of signing it he is regarded as having
"signed" in writing. Hagen v. Gresby, 34 N.D. 349, 159
N.W. 3, 5, L.R.A.1917B, 281.
Signing Judgment
In English practice. The signature or allow-
ance of the proper officer of a court, obtained by
the party entitled to judgment in an action, ex-
pressing generally that judgment is given in his
favor, and which stands in the place of its actual
delivery by the judges themselves. Steph.P1. 110,
111; French v. Pease, 10 Kan. 54. In American
practice. A signing of the judgment record it-
self, which is done by the proper officer, on the
margin of the record, opposite the entry of the
judgment. 1 Burrill, Pr. 268.
SIGN MANUAL. An autograph signature; spe-
cifically, the official signature of a sovereign, chief
magistrate, or the like, to an official document, as
letters patent, to give validity. Webster, Diet.;
Wharton, Law Diet.
English Law
The signature of the king to grants or letters
patent, inscribed at the top. 2 Sharsw. Bla.Comm.
347*. The sign manual is not good unless coun-
tersigned, etc.; 9 Mod. 54. There is this differ-
ence between what the sovereign does under the
sign manual and what he or she does under the
great seal, viz., that the former is done as a per-
sonal act of the sovereign; the latter as an act
of state. Brown.
SIGNA. The plural of signum (q. v.).
SIGNAL. A means of communication, as be-
tween vessels at sea or between a vessel and the
shore. The international code of signals for the
use of all nations assigns arbitrary meanings to
different arrangements of flags or displays of
lights.
SIGNATORIUS ANNULUS. Lat. In the civil
law. A signet-ring; a seal-ring. Dig. 50, 16, 74.
SIGNATORY. A term used in diplomacy to in-
SIGNATURE. The act of putting down a man's
name at the end of an instrument to attest its va-
lidity, the name thus written. A "signature" may
be written by hand, printed, stamped, typewritten,
engraved, photographed, or cut from one instru-
ment and attached to another, and a signature
lithographed on an instrument by a party is suf-
ficient for the purpose of signing it; it being im-
material with what kind of instrument a signa-
ture is made. Smith v. Greenville County, 188
S.C. 349, 199 S.E. 416, 419. Maricopa County v.
Osborn, 60 Ariz. 290, 136 P.2d 270, 274. And what-
ever mark, symbol, or device one may choose to
employ as representative of himself is sufficient.
Griffith v. Bonawitz, 73 Neb. 622, 103 N.W. 327,
339. See Sign.
Ecclesiastical Law
The name of a sort of rescript, without seal,
containing the supplication, the signature of the
pope or his delegate, and the grant of a pardon.
Where one who cannot write directs another to sign for
him in his presence, it will be valid with or without a
mark. Just v. Wise Tp., 42 Mich. 573, 4 N.W. 298.
The "signature" to a deed may be made either by the
grantor affixing his own signature, or by adopting one writ-
ten for him, or by making his mark, or impressing some
other sign or symbol on the paper by which the signature,
though written by another for him, may be identified. Lee
v. Parker, 171 N.C. 144, 88 S.E. 217, 221.
SIGNET. A seal commonly used for the sign
manual of the sovereign. Wharton. In Scotland,
a seal by which royal warrants connected with
the administration of justice were formerly au-
thenticated.
SIGNIFICATION. In French law. The notice
given of a decree, sentence, or other judicial act.
SIGNIFICAVIT. In ecclesiastical law. When
this word is used alone, it means the bishop's cer-
tificate to the court of chancery in order to obtain
the writ of excommunication; but, where the
words "writ of significavit" are used, the mean-
ing is the same as "writ de excommunicato capi-
endo." Shelf. Mar. & Div. 502. Obsolete.
SIGNIFY. To make known by signs or words;
express; communicate; announce; declare. State
v. Klein, 94 Wash. 212, 162 P. 52, 53.
SIGNING JUDGMENT. See Sign,
SIGNUM. Lat.
Roman and Civil Law
A sign; a mark; a seal. The seal of an instru-
ment. Calvin.
A species of proof. By "signa" were meant
those species of indicia which come more immedi-
ately under the cognizance of the senses; such as
stains of blood on the person of one accused of
murder, indications of terror at being charged
with the offense, and the like. Best, Pres. 13,
note f.
Saxon Law
The sign of a cross prefixed as a sign of assent
dicate a nation which is a party to a treaty. and approbation to a charter or deed.
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SILENCE
SILENCE. The state of a person who does not
speak, or of one who refrains from speaking. In
the law of estoppel, "silence" implies knowledge
and an opportunity to act upon it. Pence v. Lang-
don, 99 U.S. 581, 25 L.Ed. 420; Stewart v. Wyoming
Cattle Ranch Co., 9 S.Ct. 101, 128 U.S. 383, 32 L.
Ed. 439; Chicora Fertilizer Co. v. Dunan, 91 Md.
1.44, 46 A. 347, 50 L.R.A. 401.
SILENCE, ESTOPPEL BY. It arises where per-
son is under duty to another to speak or failure
to speak is inconsistent with honest dealings. In
re McArdle's Estate, 250 N.Y.S. 276, 287, 140 Misc.
257; Jones v. Kentucky Glycerine Co., 226 Ky. 676,
11 S.W.2d 713, 716; Tanenbaum Textile Co. v.
Schlanger, 287 N.Y. 400, 40 N.E.2d 225, 227.
An agreement inferred from silence rests upon principle
of "estoppel." Letres v. Washington Co-op. Chick Ass'n,
,8 Wash.2d 64, 111 P.2d 594, 596. Silence, to work "estop-
pel", must amount to bad faith. Wise v: United States,
D.C.Ky., 38 F.Supp. 130, 134.
Elements or essentials of such estoppel include change
of position to prejudice of person claiming estoppel, Sher-
lock v. Greaves, 106 Mont. 206, 76 P.2d 87, 91. Damages
if the estoppel is denied, James v. Nelson, C.C.A.Alaska,
-90 F.2d 910, 917; duty and opportunity to speak. Codd v.
Westchester Fire Ins. Co., 14 Wash.2d 600, 128 P.2d 968,
.971, 151 A.L.R. 316; Merry v. Garibaldi, 48 Cal.App.2d 397,
119 P.2d 768, 771. Ignorant of facts by person claiming es-
toppel, Cushing v. United States, D.C.Mass., 18 F.Supp. 83,
85; Nelson v. Chicago Mill & Lumber Corporation, C.C.A.
Ark., 76 F.2d 17, 100 A.L.R. 87; inducing person claiming
estoppel to alter his position, Brauch v. Freking, 219 Iowa
556, 258 N.W. 892; Truax, State ex rel. v. Burrows, 136
Neb. 691, 287 N.W. 178, 179; knowledge of facts and of
rights by person estopped, Harvey v. Richard, 200 La. 97,
7 So.2d 674, 677; Consolidated Freight Lines v. Groenen,
10 Wash.2d 672, 117 P.2d 966, 968, 137 A.L.R. 1072; mis-
leading of party claiming estoppel, Ridgill v. Clarendon
County, 192 S.C. 321, 6 S.E.2d 766, 768; Lincoln v. Bennett,
Tex.Civ.App., 135 S.W.2d 632, 636; reliance upon silence of
party sought to be estopped, Mosley v. Magnolia Petroleum
Co., 45 N.M. 230, 114 P.2d 740, 751. New York Life Ins. Co.
v. Talley, C.C.A.Iowa, 72 F.2d 715, 718; willful or culpable
silence in absence of duty to speak. Lencioni v. Fidelity
Trust & Savings Bank of Fresno, 95 Cal.App. 490, 273 P.
103, 106; Utah State Building Commission for Use and
Benefit of Mountain States Supply Co. v. Great American
Indemnity Co., 105 Utah 11, 140 P.2d 763, 771, 772.
SILENCE SHOWS CONSENT. 6 Barb. (N.Y.)
28, 35.
SILENT LEGES INTER ARMA. The power of
law is suspended during war. Bacon; 4 Inst. 70.
SILENTIARIUS. In English law. One of the
privy council; also an usher, who sees good rule
and silence kept in court. Wharton.
SILK. Fine, soft thread produced by various spe-
cies of caterpillars, etc. Lowder v. Union Trans-
fer Co. of San Francisco, 79 Cal.App. 598, 250 P.
703, 704.
Under a statute referring to silk in a manufactured or
unmanufactured state, any fabric which contains silk will
not necessarily be included. See 28 L.J.C.P. 265; 33 L.J.
Ex. 187.
SILK GOWN, Used especially of the gowns worn
in England by king's counsel; hence, "to take
silk" means to attain the rank of king's counsel.
Mozley & Whitley.
SILVA. Lat. In the civil law. Wood; a wood.
SILVA CIEDUA. In the civil law. That kind of
wood which was kept for the purpose of being
cut.
In English law. Underwood; coppice wood. 2
Inst. 642; Cowell. All small wood and under
timber, and likewise timber when cut down, under
twenty years' growth; titheable wood. 3 Salk.
347. See, also, Sylva Cledua.
SILVER. Coin made of silver; silver money;
money (in general). Webster, Diet.; Cook v.
State, 130 Ark. 90, 196 S.W. 922, 924.
SILVER SALT. A name applied commercially to
anthraquinone sulphoacid, a coal tar product.
Newport Co. v. U. S., 12 Ct.Cust.App. 115, 116.
SIMILAR. Nearly corresponding; resembling in
many respects; somewhat like; having a general
likeness. Scott v. State, 107 Ohio St. 475, 141 N.E.
19, 23; Greenbaum v. De Jong, 166 N.Y.S. 1042,
1044; People v. Standard Home Co., 59 Colo. 355,
148 P. 869.
Also, sometimes, exactly like; identical; exact-
ly corresponding (at least in all essential partied-
lars). Fletcher v. Interstate Chemical Co., 94
N.J.Law, 332, 110 A. 709; Stowell v. Blanchard, 122
Me. 368, 119 A. 866, 868; Commercial Nat. Bank
of Checotah v. Phillips, 61 Okl. 179, 160 P. 920,
921. Thus, a statutory provision in relation to
"previous conviction of a similar offense" may
mean conviction of an offense identical in kind.
Com. v. Fontain, 127 Mass. 454.
SIMILAR DESCRIPTION. Such words as used
in a tariff act import that the goods are similar
in product and adapted to similar uses; not nec-
essarily that they have been produced by similar
methods of manufacture. Greenleaf v. Goodrich,
1 Hask. 586, F.Cas. No. 5,778.
SIMILITER. Lat. In pleading. Likewise; the
like. The name of the short formula used either
at the end of pleadings or by itself, expressive of
the acceptance of an issue of fact tendered by the
opposite party; otherwise termed a "joinder in
issue." Steph.Pl. 57, 237. See Solomons v. Chesley,
57 N.H. 163; 2 Saund. 319b; Shaw v. Redmond,
11 Serg. & R. (Pa.) 32. The plaintiff's reply, that,
as the defendant has put himself upon the country,
he, the plaintiff, does the like. It occurs only when
the plea has the conclusion to the country, and its
effect is to join the plaintiff in the issue thus ten-
dered by the defendant. Co.Litt. 126a.
SIMILITUDO LEGALIS EST CASUUM DIVER-
SORUM INTER SE COLLATORUM SIMILIS RA-
TIO; QUOD IN UNO SIMILIUM VALET, VALE-
BIT IN ALTERO. DISSIMILIUM, DISSDIILIS
EST RATIO. Legal similarity is a similar rea-
son which governs various cases when compared
with each other; for what avails in one similar
case will avail in the other. Of things dissimilar,
the reason is dissimilar. Co.Litt. 191; Benj.Sales
379.
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SIMULATED
SIMONIA EST VOLUNTAS SIVE DESIDERIUM
EMENDL VEL VENDENDI SPIRITUALIA VEL
SPIRITUALIBUS ADHIERENTIA. CONTRAC-
TUS EX TURPI CAUSA ET CONTRA BONOS
MORES. Hob. 167. Simony is the will or desire
of buying or selling spiritualities, or things per-
taining thereto. It is a contract founded on a bad
cause, and against morality.
SIMONY. In English ecclesiastical law. The cor-
rupt presentation of any one to an ecclesiastical
benefice for money, gift, or reward. 2 Bl.Comm.
278. An unlawful contract for presenting a clergy-
man to a benefice. The buying or selling of ec-
clesiastical preferments or of things pertaining
to the ecclesiastical order. Hob. 167. See State
v. Buswell, 40 Neb. 158, 58 N.W. 728, 24 L.R.A. 68.
An unlawful agreement to receive a temporal reward for
something holy or spiritual. Code 1, 3, 31; Ayliffe, Parerg.
496.
Giving or receiving any material advantage in return
for spiritual promotion, whether such advantage be actu-
ally received or only stipulated for. Jenks, Mod.Land L.
220.
SIMPLA. Lat. In the civil law. The single value
of a thing. Dig. 21, 2, 37, 2.
SIMPLE. Pure; unmixed; not compounded; not
aggravated; not evidenced by sealed writing or
record.
As to simple "Assault," "Average," "Battery,"
"Blockade," "Bond," "Confession," "Contract,"
"Contract Debt," "Deposit," "Imprisonment," "In-
terest," "Larceny," "Obligation," "Tool," "Trust,"
and "Warrandice," see those titles.
SIMPLE SENTENCE. In rhetoric, one in which
only one principal statement is made, even though
there be adverbial phrases modifying the predi-
cate. San Antonio, U. & G. R. Co. v. Dawson, Tex.
Civ.App., 201 S.W. 247, 251.
SIMPLEX. Lat. Simple; single; pure; unquali-
fied.
Charta Simplex
A deed-poll or single deed. Jacob, Law Diet.
Simplex Beneficium
In ecclesiastical law. A minor dignity in a
cathedral or collegiate church, or any other ec-
clesiastical benefice, as distinguished from a cure
of souls. It may therefore be held with any paro-
chial cure, without coming under the prohibitions
against pluralities. Wharton.
Simplex Dictum
In old English practice. Simple averment; mere
assertion without proof.
Simplex Justitiarius
In old records. Simple justice. A name some-
times given to a puisne justice. Cowell.
Simplex Loquela
Simplex Obligatio
A single obligation; a bond without a condi-
tion. 2 Bl.Comm. 340.
Simplex Peregrinatio
In old English law. Simple pilgrimage. Fleta,
1. 4, c. 2, § 2.
SIMPLEX COMMENDATIO NON OBLIGAT.
Mere recommendation [of an article] does not
bind, [the vendor of it.] Dig. 4, 3, 37; 2 Kent,
Comm. 485; Broom, Max. 781; 4 Taunt. 488; 16
Q.B. 282, 283; Cro.Jac. 4; 2 Allen, Mass., 214;
5 Johns, N.Y., 354; 4 Barb., N.Y., 95.
SIMPLEX ET PURA DONATIO DICI POTERIT,
UBI NULLA EST ADJECTA CONDITIO NEC
MODUS. A gift is said to be pure and simple
when no condition or qualification is annexed.
Bract. 1.
SIMPLICITA EST LEGIBUS AMICA; ET NIMIA
SUBTILITAS IN JURE REPROBATUR. 4 Coke,
8. Simplicity is favorable to the laws; and too
much subtlety in law is to be reprobated.
SIMPLICITER. Lat. Simply;  without cere-
mony; in a summary manner.
Directly; immediately; as distinguished from
inferentially or indirectly.
By itself; by its own force; per se.
SIMUL CUM. Lat. Together with. In actions
of tort and in prosecutions, where several per-
sons united in committing the act complained of,
some of whom are known and others not, it is
usual to allege in the declaration or indictment
that the persons therein named did the injury in
question, "together with (simul cum) other per-
sons unknown." In cases of riots, it is usual to
charge that A B, together with others unknown,
did the act complained of. 2 Chitty, Cr.Law 488;
2 Salk. 593.
When a party sued with another pleads separately, the
plea is generally entitled in the name of the person plead-
ing, adding, "sued with ," naming the other party.
When this occurred, it was, in the old phraseology, called
pleading with a simul cum.
SIMUL ET SEMEL. Lat. Together and at one
time.
SIMULATE. To assume the mere appearance of,
without the reality; to assume the signs or in-
dications of, falsely; to counterfeit; feign; imi-
tate; pretend. Harryman v. Harryman, 93 Kan.
223, 144 P. 262, 265, Ann.Cas.1915B, 369. To en-
gage, usually with the co-operation or conniv-
ance of another person, in an act or series of acts,
which are apparently transacted in good faith,
and intended to be followed by their ordinary leg-
al consequences, but which in reality conceal a
fraudulent purpose of the party to gain thereby
some advantage to which he is not entitled, or to
injure, delay, or defraud others. See Cartwright
v. Bamberger, 90 Ala. 405, 8 So. 264.
In old English practice. Simple speech; the
mere declaration or plaint of a plaintiff.
SIMULATED CONTRACT. One which, though
clothed in concrete form, has no existence in fact.
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SIMULATED
It may at any time and at the demand of any
person in interest be declared a sham and may be
ignored by creditors of the apparent vendor. Hi-
bernia Bank & Trust Co. v. Louisiana Ave. Realty
Co., 143 La. 962, 79 So. 554, 556.
SIMULATED FACT. In the law of evidence. A
fabricated fact; an appearance given to things by
human device, with a view to deceive and mislead.
Burrill, Circ.Ev. 131.
SIMULATED JUDGMENT. One which is appar-
ently rendered in good faith, upon an actual debt,
and intended to be collected by the usual process
of law, but which in reality is entered by the fraud-
ulent contrivance of the parties, for the purpose
of giving to one of them an advantage to which he
is not entitled, or of defrauding or delaying third
persons.
SIMULATED SALE. One which has all the ap-
pearance of an actual sale in good faith, intended
to transfer the ownership of property for a con-
sideration, but which in reality covers a collusive
design of the parties to put the property beyond
the reach of creditors, or proceeds from some oth-
er fraudulent purpose. Moran v. Johnson, La.
App., 151 So. 139, 140.
It results when parties execute a formal act
of sale of a thing for which no price is paid or is
intended to be paid, and such sale has no legal
effect and no title is transferred thereby. If there
exists an actual consideration for transfer evi-
denced by alleged act of sale, no matter how inade-
quate it be, the transaction is not a "simulated
sale", and, even though it be charged to be in
fraud of vendor's creditors, such transfer cannot
be set aside as a simulation although it may be
subject to annulment on the ground of fraud or
the giving of undue preference. Caster v. Miller,
D.C.La., 39 F.Supp. 120, 123.
SIMULATIO LATENS. Lat. A species of feign-
ed disease, in which disease is actually present,
but where the symptoms are falsely aggravated,
and greater sickness is pretended than really ex-
ists. Beck, Med.Jur. 3.
SIMULATION. Assumption of appearance which
was feigned, false, deceptive, or counterfeit. Unit-
ed States v. Peppa, D.C.Cal., 13 F.Supp. 669, 670.
In the civil law. Misrepresentation or conceal-
ment of the truth; as where parties pretend to
perform a transaction different from that in which
they really are engaged. Mackeld.Rom.Law, §
181. A feigned, pretended act, one which assumes
the appearance without the reality and, being en-
tirely without effect, it is held not to have existed,
and, for that reason, it may be disregarded or at-
tacked collaterally by any interested person.
Freeman v. Woods, La.App., 1 So.2d 134, 136.
In French law, Collusion; a fraudulent ar-
rangement between two or more persons to give
a false or deceptive appearance to a transaction
in which they engage.
SIMULTANEOUS. A word of comparison mean-
ing that two or more occurrences or happenings
are identical in time. Brush.Electric Co. v. West-
ern Electric Co., C.C.I11., 69 F. 240, 244.
The word "simultaneous," as used in a patent claim, does
not imply absolute synchronism from beginning to end, but
has some elasticity. Events may be substantially or rela-
tively simultaneous, although not absolutely so. Westing-
house Mach. Co. v. C. & G. Cooper Co., C.C.A.Ohio, 245 F.
463, 468.
SINCE. This word's proper signification is "aft-
er," Keller v. Keller, 121 Kan. 520, 247 P. 433, 435,
49 A.L.R. 113, and in its apparent sense it in-
cludes the whole period between the event and
the present time. Jones v. Bank, 79 Me. 195, 9
A. 22. "Since" a day named, does not necessarily
include that day. Monroe v. Acworth, 41 N.H.
201.
SINDERESIS. "A natural power of the soul, set
in the highest part thereof, moving and stirring it
to good, and abhorring evil. And therefore sind-
eresis never sinneth nor erreth. And this sin-
deresis our Lord put in man, to the intent that the
order of things should be observed. And there-
fore sinderesis is called by some men the 'law of
reason,' for it ministereth the principles of the law
of reason, the which be in every man by nature, in
that he is a reasonable creature," Doct. & Stud.
39.
SINE. Lat. Without.
SINE ANIMO REVERTENDI. Without the inten-
tion of returning. 1 Kent, Comm. 78.
SINE ASSENSU CAPITULI. Without the con-
sent of the chapter. In old English practice. A
writ which lay where a dean, bishop, prebendary,
abbot, prior, or master of a hospital aliened the
lands holden in the right of his house, abbey, or
priory, without the consent of the chapter; in
which cases his successor might have this writ.
Fitzh. Nat. Brev. 194, I; Cowell.
SINE CONSIDERATIONE CURVE. Without the
judgment of the court. Fleta, lib. 2, c. 47, § 13.
SINE DECRETO. Without authority of a judge.
2 Kames, Eq. 115.
SINE DIE. Without day; without assigning a
day for a further meeting or hearing.
Hence, a final adjournment; final dismissal of
a cause. Quod eat sine die, that he go without
day; the old form of a judgment for the defend-
ant, i. e., a judgment discharging the defendant
from any further appearance in court.
SINE HOC QUOD. Without this, that. A tech-
nical phrase in old pleading, of the same import
with the phrase "absque hoc quod."
SINE NUMERO. Without stint or limit. A term
applied to common. Fleta, lib. 4, c. 19, § 8.
SINE PROLE. Without issue. Used in genealog-
ical tables, and often abbreviated into "s. p."
SINE QUA NON. Without which not. That with-
out which the thing cannot be. An indispensa-
ble requisite or condition.
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SITTINGS
SINE POSSESSIONE USUCAPIO PROCEDERE
NON POTEST. There can be no prescription
without possession.
SINECURE. In ecclesiastical law. When a rec-
tor of a parish neither resides nor performs duty
at his benefice, but has a vicar under him endow-
ed and charged with the cure thereof, this is
termed a "sinecure." Brown.
An ecclesiastical benefice without cure of souls.
In popular usage, the term denotes an office
which yields a revenue to the incumbent, but
makes little or no demand upon his time or atten-
tion.
SINGLE. One only; being a unit; alone; one
which is abstracted from others. State ex rel.
Nelson v. Board of Com'rs of Yellowstone County,
111 Mont. 395, 109 P.2d 1106, 1107.
Unitary; detached; individual; affecting only
one person; containing only one part, article, con-
dition, or covenant. State v. Patch, 64 Mont. 565,
210 P. 748, 750. Unmarried. In re Rudman's Es-
tate, 244 Pa. 248, 90 A. 566, 567. The term is ap-
plicable to a widow; Crum v. Brock, 136 Miss.
858, 101 So. 704, 705, 12 L.J.W.C. 74; and occa-
sionally even to a married woman living apart
from her husband; 12 Q.B.D. 681.
Sometimes, principal; dominating. Attorney
General v. Marx, 203 Mich. 331, 168 N.W. 1005,
1006.
SIST, v. In Scotch practice. To stay proceed-
ings. Bell.
SIST, n. In Scotch practice. A stay or suspen-
sion of proceedings; an order for a stay of pro-
ceedings. Bell.
SISTER. A woman who has the same father and
mother with another, or has one of them only.
In the first case, she is called sister, simply; in
the second, half-sister. Wood v. Mitchell, 61 How.
Prac., N.Y., 48. The word is the correlative of
"brother."
SISTER IN LAW. Sister of one's spouse; wife
of one's brother.
SIT. To hold court; to do any act of a judicial
nature. Russell v. Crook County Court, 75 Or.
168, 146 P. 806, 808. To hold a session, as of a
court, grand jury, legislative body, etc. To be
formally organized and proceeding with the trans-
action of business. Allen v. State, 102 Ga. 619,
29 S.E. 470.
SITE. A plot of ground suitable or set apart for
some specific use. Victoria v. Our Lord's Church,
22 B.C. 174, 175. A seat or ground plot. Miller
v. Alliance Ins. Co. of Boston, C.C.N.Y., 7 F. 649,
651. The term does not of itself necessarily mean
a place or tract of land fixed by definite bound-
aries. Petersburg School Dist. of Nelson County
v. Peterson, 14 N.D. 344, 103 N.W. 756, 758. See,
also, Scite.
SITHCUNDMAM. In Saxon law. The high con-
stable of a hundred.
SITIO GANADO MAYOR. (Sometimes written,
also, sitio de ganado mayor.) Sp. In Spanish
and Mexican land law, a tract of land in the form
of a square, each side of which measures 5,000
varas; the distance from the center of each sitio
to each of its sides should be measured directly
to the cardinal points of the compass, and should
be 2,500 varas. U. S. v. Cameron, 3 Ariz. 100, 21 P.
177. Equivalent to 4338.464 acres. Ainsa v. U.
S., 16 S.Ct. 544, 161 U.S. 219, 40 L.Ed. 673. A
square league. U. S. v. Sutherland, 19 How. 363,
364, 15 L.Ed. 666.
SITIO DE GANADO MENOR, or sheep ranch, is
equivalent to 1928.133 acres. Ainsa v. U. S., 16
S.Ct. 544, 161 U.S. 219, 40 L.Ed. 673.
SITTING. In English law. The part of the year
in which judicial business is transacted. A session
or term of court; usually plural. People v. Hig-
gins, 173 Misc. 96, 16 N.Y.S.2d 302, 310.
SITTINGS AFTER TERM. Sittings in Banc
after term were held by authority of the St. 1 & 2
Vict. c. 32. The courts were at liberty to transact
business at their sittings as in term-time, but the
custom was to dispose only of cases standing for
argument or judgment. Wharton.
SITTINGS IN BANK, OR BANC. The sittings
which the respective superior courts of common
law hold during every term for the purpose of
hearing and determining the various matters of
law agreed before them.
As to single "Adultery," "Bill," "Bond," "Corn-
bat," "Demise," "Entry," "Escheat," "Obligation,"
"Original," and "Tract," see those titles.
SINGLE CREDITOR. One having a lien only on
a single fund;—distinguished from double credi-
tor, who is one having a lien on two funds. New-
by v. Fox, 90 Kan. 317, 133 P. 890, 47 L.R.A.,N.S.,
302.
SINGLE JUROR CHARGE. The charge that, if
there is any juror who is not reasonably satisfied
from the evidence that plaintiff should recover a
verdict against the defendant, jury cannot find
against defendant. Greyhound Corp. v. Brown,
113 So.2d 916, 919, 269 Ala. 520; Southern Ry. Co.
v. Stallings, 107 So.2d 873, 884, 268 Ala. 463.
SINGULAR. Each; as in the expression "all
and singular." Also, individual. In grammar, the
singular is used to express only one. In law, the
singular frequently includes the plural. Under
the 13 & 14 Vict. c. 21, § 4, words in acts of par-
liament importing the singular shall include the
plural, and vice versa, unless the contrary is ex-
pressly provided. Whart. Lex.
As to singular "Successor," and "Title," see
those titles.
SINGULI IN SOLIDUM TENENTUR. Each is
bound for the whole. 6 Johns.Ch. (N.Y.) 242, 252.
SINKING FUND. See Fund.
SIPESSOCUA. In old English law. A franchise,
liberty, or hundred.
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SITTINGS
They are so called in contradistinction to the sit-
tings at nisi prius which are held for purpose of
trying issues of fact.
In America, the practice is essentially the same,
all the judges, or a majority of them usually, sit-
ting in banc and but one holding the court for
jury trials; and the term has the same applica-
tion here as in England.
SITTINGS IN CAMERA. See Chambers.
SITUATE. To give a specific position to; fi a
site for; to toplace in certain position; sub' t 
definite conditions or circumstances; (rare) hav-
ing a fixed place or a relative position; (archaic)
residing; dwelling. Century Ins. Co. v. Glidden
Buick Corporation, 174 Misc. 149, 20 N.Y.S.2d
108, 112.
SITUATION. State of being placed; posture.
Jones v. Tuck, 48 N.C. 202, 205. Position as re-
gards conditions and circumstances; state; con-
dition. Bellomy v. Bruce, 303 Ill.App. 349, 25 N.
E.2d 428, 433.
SITUATION OF DANGER. Within the meaning
of the last clear chance rule as applicable to a
plaintiff operating a moving vehicle is reached
only when plaintiff, in moving toward path of an
on-coming train or vehicle has reached a position
from which he cannot escape by ordinary care,
and it is not enough that plaintiff was merely ap-
proaching a position of danger. Johnson v. Sac-
ramento Northern Ry., 54 Cal.App.2d 528, 129 P.
2d 503, 506.
SITUS. Lat. Situation; location. Smith v. Bank,
5 Pet. 524, 8 L.Ed. 212; Heston v. Finley, 118 Kan.
717, 236 P. 841, 843; Avery v. Interstate Grocery
Co., 118 Okl. 268, 248 P. 340, 341, 52 A.L.R. 528.
Site; position; the place where a thing is consid-
ered, for example, with reference to jurisdiction
over it, or the right or power to tax it. Boyd v.
Selma, 96 Ala. 144, 11 So. 393, 16 L.R.A. 729; Bul-
lock v. Guilford, 59 Vt. 516, 9 A. 360; Fenton v.
Edwards, 126 Cal. 43, 58 P. 320, 46 L.R.A. 832, 77
Am.St.Rep. 141.
It imports fixedness of location. In its natural significa-
tion the term is applicable only to landed estates which
are really fixed and immovable. Conventionally, it is ap-
plied to personal property as annexing it to the individual
to whom it belongs; its situs being primarily in legal con-
templation where the owner happens to be at any time. It
is the exception that personal property has any other situs
than that of the person of its owner. Zanes v. Mercantile
Bank & Trust Co. of Texas, Tex.Civ.App., 49 S.W.2d 922,
926.
Generally, personal property has its taxable "situs" in
that state where owner of it is domiciled. Smith v. Lum-
mus, 149 Fla. 660, 6 So.2d 625, 627, 628.
"Situs" of a trust means place of performance of active
duties of trustee. Campbell v. Albers, 313 Ill.App. 152, 39
N.E.2d 672, 676.
SIVE TOTA RES EVINCATUR, SIVE PARS,
HABET REGRESSUM EMPTOR IN VENDITOR-
EM. The purchaser who has been evicted in
whole or in part has an action against the vendor.
Dig. 21, 2, 1; Broom, Max. 768.
SIX ACTS, THE. The acts passed in 1819, for
the pacification of England, are so called. They, in
effect, prohibited the training of persons to arms;
authorized general searches and seizure of arms;
prohibited meetings of more than fifty persons for
the discussion of public grievances; repressed
with heavy penalties and confiscations seditious
and blasphemous libels; and checked pamphle-
teering by extending the newspaper stamp duty to
political pamphlets. Brown.
SIX ARTICLES, LAWS OF. A celebrated act en-
titled "An act for abolishing diversity of opinion,"
(31 Hen. VIII, c. 14,) enforcing conformity under
the severest penalties on six of the strongest
points in the Roman Catholic religion: Transub-
stantiation, communion in one kind, the celibacy
of the clergy, monastic vows, the sacrifice of the
mass, and auricular confession. 4 Steph.Com. 183;
4 Reeve, Eng.Law, 378. Repealed by 1 Eliz. c. 1.
SIX CLERKS. In English practice. Officers of
the court of chancery, who received and filed all
bills, answers, replications, and other papers,
signed office copies of pleadings, examined and
signed dockets of decrees, etc., and had the care
of all records in their office. Holthouse; 3 Bl.
Comm. 443. They were abolished by St. 5 Vict.
c. 5.
SIX-DAY LICENSE. In English law. A liquor
license, containing a condition that the premises
in respect of which the license is granted shall
be closed during the whole of Sunday, granted
under section 49 of the licensing act, 1872 (35 &
36 Vict. c. 94.)
SIXHINDI. Servants of the same nature as rod
knights, (q. v.) Anc. Inst. Eng.
SKELETON BILL. One drawn, indorsed, or ac-
cepted in blank.
SKELETON BILL OF EXCEPTIONS. A bill of
exceptions containing calls for the insertion by
the clerk of the necessary documents. Padgett v.
Gulfport Fertilizer Co., 11 Ala.App. 366, 66 So.
866, 867.
SKID, n. A simple contrivance used for handling
heavy articles under many conditions. Beckman
v. Anheuser Busch Brewing Ass'n, 98 Mo.App.
555, 72 S.W. 710, 711.
SKID, v. As used in connection with operation of
motor vehicle on roadway means that car slips
sideways on road and rear wheels fail to grip
roadway. Correira v. Boston Motor Tours, 270
Mass. 88, 169 N.E. 775, 776.
SKILL. Practical and familiar knowledge of the
principles and processes of an art, science, or
trade, combined with the ability to apply them
in practice in a proper and approved manner and
with readiness and dexterity. Akridge v. Noble,
114 Ga. 949, 41 S.E. 78; Haworth v. Severs Mfg.
Co., 87 Iowa 765, 51 N.W. 68.
Reasonable Skill
Such skill as is ordinarily possessed and exer-
cised by persons of common capacity, engaged in
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SLEEPING
the same business or employment. Mechanics'
Bank v. Merchants' Bank, 6 Metc., Mass., 26.
SKILLED WITNESSES. One possessing knowl-
edge and experience as to particular subject which
are not acquired by ordinary persons. Firemen's
Ins. Co. v. Little, 189 Ark. 640, 74 S.W.2d 777,
780.
Such witness is allowed to give evidence on mat-
ters of opinion and abstract fact.
SKINPOP. An intramuscular injection or nar-
cotic drug. Broadway Angels, Inc., v. Wilson, 125
N.Y.S.2d 546, 548, 282 App.Div. 643.
SKIOGRAPHS. Photographs of the interior of
the object portrayed. Texas Emp. Ins. Ass'n v.
Crow, Tex., 221 S.W.2d 235, 237.
SLACKER. A person who was derelict in the
performance of his duty toward his country in
the world war. Dimmitt v. Breakey, C.C.A.Tex.,
267 F. 792; Choctaw Coal & Mining Co. v. Lillich,
204 Ala. 533, 86 So. 383, 385, 11 A.L.R. 1014.
SLADE. In old records. A long, flat, and narrow
piece or strip of ground. Paroch. Antiq. 465.
SLAINS. See Letters of Slains.
SLANDER. The speaking of base and defama-
tory words tending to prejudice another in his
reputation, office, trade, business, or means of
livelihood. Little Stores v. Isenberg, 26 Tenn.App.
357, 172 S.W.2d 13, 16. Harbison v. Chicago, R. I.
& P. Ry. Co., 327 Mo. 440, 37 S.W.2d 609, 616. Oral
defamation; the speaking of false and malicious
words concerning another, whereby injury results
to his reputation. Pollard v. Lyon, 91 U.S. 227, 23
L.Ed. 308; Fredrickson v. Johnson, 60 Minn. 337,
62 N.W. 388; Johnston v. Savings Trust Co. of St.
Louis, Mo., 66 S.W.2d 113, 114; Lloyd v. Commis-
sioner of Internal Revenue, C.C.A.7, 55 F.2d 842,
844. An essential element of "slander" is that
slanderous words be spoken in presence of an-
other than person slandered, and publication is
always material and issuable fact in action for
slander. Tucker v. Pure Oil Co. of Carolinas, 191
S.C. 60, 3 S.E.2d 547, 549. Hence an oral defama-
tion, heard only by one who does not understand
the language in which it is spoken, is not "slan-
der". Allen v. American Indemnity Co., 63 Ga.
App. 894, 12 S.E.2d 127, 128.
"Libel" and "slander" are both methods of
defamation; the former being expressed by print,
writing, pictures, or signs; the latter by oral ex-
pressions. Ajouelo v. Auto-Soler Co., 61 Ga.App.
216, 6 S.E.2d 415, 418.
SLANDER OF TITLE. A false and malicious
statement, oral or written, made in disparage-
ment of a person's title to real or personal prop-
erty, or of some right of his causing him special
damage. Reliable Mfg. Co. v. Vaughan Novelty
Mfg. Co., 294 Ill.App. 601, 13 N.E.2d 518; Cawrse
v. Signal Oil Co., 164 Or, 666, 103 P.2d 729, 730, 129
A.L.R. 174. "Malice" as essential element of "slan-
der of title" purports an intention to vex, injure
or annoy another person. Cawrse v. Signal Oil
Co., 164 Or. 666, 103 P.2d 729, 730, 129 A.L.R. 174.
An action for "slander of title" is maintainable only by
one who possesses an estate or interest in the property.
Allison v. Berry, 316 Ill.App. 261, 44 N.E.2d 929, 934.
SLANDERER. One who maliciously and without
reason imputes a crime or fault to another of
which he is innocent. See Slander.
SLANDEROUS PER SE. Slanderous in itself.
Words falsely spoken of another are slanderous
per se only when they impute the commission of
a crime involving moral turpitude, impute the ex-
istence of a loathsome and infectious disease, im-
pute unfitness to perform the duties of an office or
employment, prejudice in a profession or trade,
or tend to disinherit him. Smallwood v. York,
163 Ky. 139, 173 S.W. 380, 381, L.R.A.1915D, 578;
Nelson v. Rosenberg, 135 Neb. 34, 280 N.W. 229.
Words which are slanderous without proof of
special damages. Simons v. Harris, 215 Iowa 479,
245 N.W. 875, 876.
To constitute slander "per se," the published statement
must be susceptible of but one meaning. Tucker v. Wal-
lace, 90 Mont. 359, 3 P.2d 404, 405.
SLAVE. A person who is wholly subject to the
will of another; one who has no freedom of ac-
tion, but whose person and services are wholly un-
der the control of another. Webster; Anderson v.
Salant, 38 R.I. 463, 96 A. 425, 428, L.R.A.1916D,
651.
One who is under the power of a master, and who be-
longs to him; so that the master may sell and dispose of
his person, of his industry, and of his labor, without his
being able to do anything, have anything, or acquire any-
thing, but what must belong to his master. Civ.Code La.
1838, art. 35.
SLAVE—TRADE. The traffic in slaves, or the buy-
ing and selling of slaves for profit.
SLAVERY. The condition of a slave; that civil
relation in which one man has absolute power
over the life, fortune, and liberty of another.
SLAY. This word, in an indictment, adds nothing
to the force and effect of the word "kill," when
used with reference to the taking of human life.
It is particularly applicable to the taking of human
life in battle; and, when it is not used in this
sense, it is synonymous with "kill." State v.
Thomas, 32 La.Ann. 351.
SLEDGE. A hurdle to draw traitors to execution.
1 Hale, P. C. 82.
SLEEPING PARTNER. A dormant partner; one
whose name does not appear in the firm, and
who takes no active part in the business, but who
has an interest in the concern, and shares the
profits, and thereby becomes a partner, either
absolutely, or as respects third persons.
SLEEPING RENT. In English law. An expres-
sion frequently used in coal-mine leases and agree-
ments for the same. It signifies a fixed or dead,
i. e., certain, rent, as distinguished from a rent
or royalty varying -with the amount of coals
gotten, and is payable although the mine shouLa
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SLICE
not be worked at all, but should be sleeping or
dead, whence the name. Brown.
SLICE. An indeterminate part or portion. Read
v. McKeague, 252 Mass. 162, 147 N.E. 585.
SLICK. Smooth, with a slippery or greasy
smoothness. McCall v. B. Nugent Bros. Dry
Goods Co., Mo., 236 S.W. 324, 327.
SLIGHT. A word of indeterminate meaning.
Moxley v. Hertz, 30 S.Ct. 305, 308, 216 U.S. 344, 54
L.Ed 510. Variously defined as inconsiderable;
unimportant; remote; insignificant. Newsome v.
Louisville and N. R. Co., 20 Ala.App. 349, 102 So.
61, 64; Moxley v. Hertz, 30 S.Ct. 305, 308, 216 U.S.
344, 356, 54 L.Ed. 510.
As to slight "Care," "Evidence," "Fault," and
"Negligence," see those titles.
SLIP. In negotiations for a policy of insurance.
In England, the agreement is in practice con-
cluded between the parties by a memorandum
called the "slip," containing the terms of the
proposed insurance, and initialed by the under-
writers. Sweet.
Also that part of a police court which is divided
off from the other parts of the court, for the pris-
oner to stand in. It is frequently called the
"dock." Brown.
The intermediate space between two wharves or
docks; the opening or vacant space between two
piers. Thompson v. New York, 11 N.Y. 120; New
York v. Scott, 1 Caines, N.Y., 543.
A break or cleavage in the continuity of the
slate structure of the roof of a mine. Edgren v.
Scandia Coal Co., 171 Iowa 459, 151 N.W. 519, 522.
SLIPPA. A stirrup. There is a tenure of land in
Cambridgeshire by holding the sovereign's stir-
rup. Wharton.
SLOPE. Within a mining statute, a level or in-
clined way, passage, or opening used for the same
purpose as a shaft. Roberts v. Tennessee Coal,
Iron & R. Co., C.C.A.Ala., 255 F. 469, 471.
SLOT MACHINE. Within a statute prohibiting
operation of slot machines or similar gambling
device, an apparatus by which a person depositing
money therein may, by chance, get directly or in-
directly money or articles of value worth either
more or less than the money deposited. Elder v.
Camp, 193 Ga. 320, 18 S.E.2d 622, 624. See also
State v. Abbott, 218 N.C. 470, 11 S.E.2d 539, 544.
SLOUGH. An arm of a river, flowing between
islands and the main-land, and separating the
islands from one another. Sloughs have not the
breadth of the main river, nor does the main body
of water of the stream flow through them. Dun-
lieth & D. Bridge Co. v. Dubuque County, 55 Iowa
565, 8 N.W. 443.
SLOUGH SILVER. A rent paid to the castle of
Wigmore, in lieu of certain days' work in harvest,
heretofore reserved to the lord from his tenants.
Cowell.
SLUICEWAY. An artificial channel into which
water is let by a sluice. Specifically, a trench
constructed over the bed of a stream, so that logs
or lumber can b2 floated down to a convenient
place of delivery. Webster. See Anderson v.
Munch, 29 Minn. 416, 13 N.W. 192.
SLUM. A squalid, dirty street or quarter of a
city, town or village, ordinarily inhabited by the
very poor, destitute or criminal classes; over-
crowding is usually a prevailing characteristic.
Marvin v. Housing Authority of Jacksonville, 133
Fla. 590, 183 So. 145, 150. Spahn v. Stewart, 268
Ky. 97, 103 S.W.2d 651, 658.
SLUNG-SHOT. A small mass of metal or stone
fixed on a flexible handle, strap, or the like, used
as a weapon. People v. Williams, 100 Cal.App.
149, 279 P. 1040.
SLUSH FUND. Money collected or spent for
corrupt purposes such as lobbying or the like.
Boehm v. United States, C.C.A.Mo., 123 F.2d 791,
812.
SMAKA. In old records. A small, light vessel;
a smack. Cowell.
SMALL DEBTS COURTS. The several county
courts established by St. 9 & 10 Vict. c. 95, for the
purpose of bringing justice home to every man's
door.
SMALL TITHES. All personal and mixed tithes,
and also hops, flax, saffrons, potatoes, and some-
times, by custom, wood. Otherwise called "privy
tithes." 2 Steph.Comm. 726.
SMART-MONEY. Vindictive or exemplary dam-
ages given by way of punishment and example, in
cases of gross misconduct of defendant. Brewer
v. Jacobs, C.C.Tenn., 22 F. 224; Springer v. Som-
ers Fuel Co., 196 Pa. 156, 46 A. 370; Murphy v.
Hobbs, 7 Colo. 541, 5 P. 119, 49 Am.Rep. 366; Cot-
ton v. Fisheries Products Co., 181 N.C. 151, 106
S.E. 487, 488.
SMELLER. In liquor cases. A witness who is
shown to know liquor by smell. Mathews v. State,
21 Ala.App. 181, 106 So. 390, 391.
SMELTING. A melting of ores in the presence of
some re-agent which operates to separate the me-
tallic element by combining with a non-metallic
element. Lowrey v. Smelting & Aluminum Co.,
C.C.Ohio, 68 F. 354.
SMOKE-FARTHINGS. In old English law. An
annual rent paid to cathedral churches; another
name for the pentecostals or customary oblations
offered by the dispersed inhabitants within a dio-
cese, when they made their processions to the
mother cathedral church. Cowell.
SMOKE-SILVER. In English law. A sum paid
to the ministers of divers parishes as a modus in
lieu of tithe-wood. Blount.
SMUGGLING. The offense of importing prohibit-
ed articles, or of defrauding the revenue by the
introduction of articles into consumption, without
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paying the duties chargeable upon them. It may
be committed indifferently either upon the excise
or customs revenue. Wharton.
Clandestine introduction of goods into United
States, importation of which is prohibited without
payment of duty, constitutes. Tomplain v. U. S.,
C.C.A.La., 42 F.2d 203, 204.
The fraudulent taking into a country, or out
of it, merchandise which is lawfully prohibited.
(Quoted and approved by Brewer, J., in Dunbar
v. U. S., 15 S.Ct. 325, 156 U.S. 185, 39 L.Ed. 390.)
"The bringing on shore, or carrying from the
shore, goods and merchandise, for which the duty
has not been paid, or of goods of which the im-
portation or exportation is prohibited." 6 Bac.
Abr. 258; Hill v. U. S., C.C.A.Md., 42 F.2d 812,
814.
SMUT. See Obscene.
SNOTTERING SILVER. A small duty which
was paid by servile tenants in Wylegh to the ab-
bot of Colchester. Cowell.
SO. In the same manner as has been stated;
under this circumstance; in this way, referring
to something which is asserted. Blanton v. State,
1 Wash. 265, 24 P. 439, 441. Sometimes the equiva-
lent of "hence," or "therefore," and it is thus un-
derstood whenever what follows is an illustration
of, or conclusion from, what has gone before.
Clem v. State, 33 Ind. 431.
In connection with time, it suggests a period of
indefinite duration. Thus, an agreement to pay
rent "within a week or so". Marshall v. Partyka,
98Bonn. 778, 120 A. 507, 508.
SO HELP YOU GOD. The formula at the end of
a common oath.
SOAKAGE. As used in the laws and regulations
relating to withdrawal of liquors from bonded
warehouses, the spirits which in course of time in
the warehouse had been absorbed by the staves of
the barrel containing it. Bernheim Distilling Co.
v. Mayes, D.C.Ky., 268 F. 629, 630.
SOBER. Moderate in, or abstinent from, the use
of intoxicating liquors. American Cigar Co. v.
Fabacher, 156 La. 182, 100 So. 299, 300.
SOBRE. Span. Above; over; upon. Ruffs v.
Chambers, 15 Tex. 586, 592.
SOBRE-JUEZES. In Spanish law. Superior
judges. Las Partidas, pt. 3, tit. 4, 1. 1.
SOBRINI and SOBRINIE. Lat. In the civil law.
The children of cousins german in general.
SOC, SOK, or SOKA. In Saxon law. Jurisdiction;
a power or privilege to administer justice and
execute the laws; also a shire, circuit, or territory.
Cowell.
SOCA. A seigniory or lordship, enfranchised by
the king, with liberty of holding a court of his
socmen or socagers;  e., his tenants.
SOCAGE. A species of tenure, in England, where-
by the tenant held certain lands in consideration
of certain inferior services of husbandry to be
performed by him to the lord of the fee. In its
most general and extensive signification, a ten-
ure by any certain and determinate service. And
in this sense it is by the ancient writers constant-
ly put in opposition to tenure by chivalry or
knight-service, where the render was precarious
and uncertain. Socage is of two sorts,—free so-
cage, where the services are not only certain, but
honorable; and villein socage, where the services,
though certain, are of baser nature. Such as hold
by the former tenure are also called in Glanvil
and other authors by the name of "liberi sokeman-
ni," or tenants in free socage. By the statute 12
Car. 2, c. 24, all the tenures by knight-service
were, with one or two immaterial exceptions,
converted into free and common socage. Cowell;
Bract. 1. 2, c. 35; 2 B1.Comm. 79; Flata, lib. 3,
c. 14, § 9; Litt. § 117; Glan. 1. 3, c. 7.
SOCAGER. A tenant by socage.
SOCAGIUM IDEM EST QUOD SERVITUM SO-
CIE; ET SOCA, IDEM EST QUOD CARUCA.
Co. Litt. 86. Socage is the same as service of
the soc; and soc is the same thing as a plow.
SOCER. Lat. In the civil law. A wife's father;
a father-in-law. Calvin.
SOCIAL CLUBS. Within federal statute impos-
ing tax on dues and initiation fees of such clubs,
clubs whose social features are a material part
of their activities and necessary to their exis-
tence, and not merely incidental. Transportation
Club of San Francisco v. United States, Ct.C1.,
17 F.Supp. 201, 205.
SOCIAL CONTRACT, or COMPACT. In political
philosophy, a term applied to the theory of the
origin of society associated chiefly with the names
of Hobbes, Locke and Rousseau, though it can be
traced back to the Greek Sophists. Rousseau
(Contract Social) held that in the pre-social state
man was unwarlike and timid. Laws resulted
from the combination of men who agreed, for
mutual protection, to surrender individual free-
dom of action. Government must therefore rest
on the consent of the governed. Encycl. Br.
SOCIAL INSURANCE. Covers insurance re-
ferred to under the head: Unemployment, old
age pensions, mothers' and orphans' pensions,
sickness, etc. Smythe v. Home Life & Accident
Ins. Co., 134 La. 368, 64 So. 142, 143.
SOCIAL SETTLEMENT. The term as applied
to organizations engaged in charitable or philan-
thropic work, implies a fixed locality to be bene-
fited by supplying moral, physical, and educa-
tional help to the poor and needy. In re Young
Women's Christian Ass'n, Sup., 141 N.Y.S. 260,
261.
SOCIALISM. Any theory or system of social or-
ganization which would abolish, entirely or in
great part, the individual effort and competition
on which modern society rests, and substitute for
it co-operative action, would introduce a more
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perfect and equal distribution of the products
of labor, and would make land and capital, as
the instruments and means of production, the
joint possession of the members of the commu-
nity.
SOCIDA. In civil law. The name of a contract
by which one man delivers to another, either for
a small recompense or for a part of the profits,
certain animals on condition that if any of them
perish they shall be replaced by the bailee or he
shall pay their value.
A contract of hiring, with the condition that
the bailee takes upon him the risk of the loss of
the thing hired. Wolff § 638.
SOCIEDAD. In Spanish law. Partnership.
Schm. Civil Law, 153, 154.
SOCIEDAD ANONIMA. In Spanish and Mexican
law. A business corporation. "By the corporate
name, the shareholders' names are unknown to
the world; and, so far as their connection with
the y orporationis concerned, their own names
may be said to be anonymous, that is, nameless.
Hence the derivation of the term 'anonymous' as
applied to a body of persons associated together
in the form of a company to transact any given
business under a company name which does not
disclose any of their own." Hall, Mex. Law, §
749.
SOCIEDAD DE GANANCIALES. A Cuban law.
It exists between husband and wife and is literal-
ly an association for profit. The underlying pur-
pose of such associations is that the spouses may
each contribute to a common stock, the wife her
dowry, the husband his capital, the gains from
those as well as from their joint labors, to be
shared equally. On dissolution of the associa-
tion, ordinarily by death, the distribution is as
follows: First the wife gets back her dowry and
"parapherna"; second, the debts of the "sociedad"
are paid; and the husband's contribution, "capi-
tal," is returned. The remainder is profits, "gan-
anciales," and is divided equally between the
spouses after restoring any losses to their con-
tributed property. Sanchez v. Bowers, C.C.A.N.Y.,
70 F.2d 715, 716, 718.
SOCIETAS. Lat. In the civil law. Partnership;
a partnership; the contract of partnership. Inst.
3, 26. A contract by which the goods or labor of
two or more are united in a common stock, for
the sake of sharing in the gain. Hallifax, Civil
Law, b. 2, c. 18, no. 12.
SOCIETAS LEONINA. That kind of society or
partnership by which the entire profits belong to
some of the partners, in exclusion of the rest. So
called in allusion to the fable of the lion, who,
having entered into partnership with other ani-
mals for the purpose of hunting, appropriated all
the prey to himself. Wharton.
SOCIETAS NAVALIS. A naval partnership; an
,association of vessels; a number of ships pursu-
ing their voyage in company, for purposes of
mutual protection.
SOCIETE. Fr. In French law. Partnership.
See Commendam.
SOCIETE ANONYME. In French law originally
a partnership conducted in the name of one of
the members; the others were strictly secret part-
ners. To creditors of the firm they came into no
relation and under no liability. An association
where the liability of all the partners is limited. It
had in England until lately no other name than
that of "chartered company," meaning thereby a
joint-stock company whose shareholders, by a
charter from the crown, or a special enactment of
the legislature, stood exempted from any liabil-
ity for the debts of the concern, beyond the
amount ,of their subscriptions. 2 Mill, Pol. Econ.
485.
SOCIETE D'ACQUETS. A written contract be-
tween husband and wife to regard as community
property only those things which are acquired
during the marriage.
SOCIETE EN COMMANDITE. In Louisiana. A
partnership formed by a contract by which one
person or partnership agrees to furnish another
person or partnership a certain amount, either in
property or money, to be employed by the person
or partnership to whom it is furnished, in his or
their own name or firm, on condition of receiving a
share in the profits, in the proportion determined
by the contract, and of being liable to losses and
expenses to the amount furnished and no more.
Civ.Code La. art. 2839.
SOCIETE EN NOM COLLECTIF. A partnership
in which all the members are jointly and severally
liable.
SOCIETE EN PARTICIPATION. A joint adven-
ture.
SOCIETE PAR ACTIONS. A joint stock com-
pany.
SOCIETY. An association or company of persons
(generally unincorporated) united together by mu-
tual consent, in order to deliberate, determine, and
act jointly for some common purpose. In a wider
sense, the community or public; the people in gen-
eral. Gilmer v. Stone, 7 S.Ct. 689, 120 U.S. 586, 30
L.Ed. 734.
Within rule that husband is entitled to dam-
ages for loss of wife's "society" through wrongful
injury means such capacities for usefulness, aid,
and comfort as a wife as she possessed at the
time of the injuries. Homan v. Missouri Pac. R.
Co., 335 Mo. 30, 70 S.W.2d 869.
Civil society—usually, a state, nation, or body
politic. Rutherforth, Inst. c. 1, 2.
SOCII MEI SOCIUS MEUS SOCIUS NON EST.
The partner of my partner is not my partner.
Dig. 50, 17, 47, 1.
SOCIOPATHIC PERSONALITY. See Psychopath.
SOCIUS. Lat. In the civil law. A partner.
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SOLDIER
SOCMAN. A socager.
Free Socmen. In old English law. Tenants in
free socage. Glanv. Lib. 3, c. 7; 2 Bl.Comm. 79.
SOCMANRY. Free tenure by socage.
SOCNA. A privilege, liberty, or franchise. Cow-
ell.
SOCOME. A custom of grinding corn at the lord's
mill. Cowell. Bond-socome is where the tenants
are bound to it. Blount.
SODOMITE. One who has been guilty of sodomy.
SODOMY. A carnal copulation by human beings
with each other against nature, or with a beast.
Strum v. State, 168 Ark. 1012, 272 S.W. 359. State
v. Young, 140 Or. 228, 13 P.2d 604, 607.
This term is often defined in statutes and judicial deci-
sions as meaning "the crime against nature," the "crimen
innominatum," or as carnal copulation, against the order
of nature, by man with man, or, in the same unnatural
manner, with woman or with a beast. See Code Ga.1882,
§ 4352 (Penn.Code 1910, § 373) ; Honselman v. People, 168
111. 172, 48 N.E. 304. But, strictly speaking, it should be
used only as equivalent to "pederasty," that is, the sexual
act as performed by a man upon the person of another
man or a boy by penetration of the anus. See Ausman v.
Veal, 10 Ind. 355, 71 Am.Dec. 331. The term might also,
without any great violence to its original meaning, be so
extended as to cover the same act when performed in the
same manner by a man upon the person of a woman. An-
other possible method of unilateral sexual connection, by
penetration of the mouth (penem in orem alii immittere,
vel penem alii in orem recipere) is not properly called
"sodomy," but "fellation." That this does not constitute
sodomy within the meaning of a statute is held in Com. v.
Poindexter, Ky., 118 S.W. 943; Lewis v. State, 36 Tex.
Cr.R. 37, 35 S.W. 372, 61 Am.St.Rep. 831; but a greater
number of jurisdictions hold otherwise. See State v. Far-
ris, 189 Iowa, 505, 178 N.W. 361, 362 ; Glover v. State, 179
Ind. 459, 101 N.E. 629, 630, L.R.A.,N.S., 473; White v.
State, 136 Ga. 158. 71 S.E. 135; State v. Start, 65 Or. 178,
132 P. 512, 46 L.R.A.,N.S., 266. On the other hand besti-
ality is the carnal copulation of a human being with a
brute, or animal of the sub-human orders of the opposite
sex. It is not identical with sodomy, nor is it a form of
sodomy, though the two terms are often confused in legal
writings and sometimes in statutes. See Ausman v. Veal,
10 Ind. 355, 71 Am.Dec. 331. Buggery is a term rarely used
in statutes, but apparently including both sodomy (in the
widest sense) and bestiality as above defined. See Ausman
v. Veal, 10 Ind. 355, 71 Am.Dec. 331; Com. v. J., 21 Pa.Co.
et. R. 625.
SOFT DRINK PARLOR. A place where soft
drinks are sold and drunk on premises. People v.
De Geovanni, 326 Ill. 230, 157 N.E. 195, 197.
SOIL. The surface, or suface-covering of the land,
not including minerals beneath it or grass or
plants growing upon it. But in a wider (and more
usual) sense, the term is equivalent to "land,"
and includes all that is below, upon, or above the
surface.
SOIT. Fr. Let it be; be it so. A term used in
several law; French phrases employed in English
law, particularly as expressive of the will or as-
sent of the sovereign in formal communications
with parliament or with private suitors.
SOIT BAILE AUX COMMONS. Let it be deliver-
ed to the commons. The form of indorsement on
a bill when sent to the house of commons. Dyer,
93a.
SOIT BAILE AUX SEIGNEURS. Let it be deliv-
ered to the lords. The form of indorsement on a
bill in parliament when sent to the house of lords.
Hob. 111a.
SOIT DROIT FAIT AL PARTIE. In English law.
Let right be done to the party. A phrase written
on a petition of right, and subscribed by the king.
SOIT FAIT COMME IL EST DESIRE. Let it be
as it is desired. The royal assent to private acts
of parliament.
SOJOURNING. This term means something
more than "traveling," and applies to a temporary,
as contradistinguished from a permanent, resi-
dence. Henry v. Ball, 1 Wheat. 5, 4 L.Ed. 21; In
re Gahn's Will, 110 Misc. 96, 180 N.Y.S. 262, 266.
SOKEMANRIES. Lands and tenements which
were not held by knight-service, nor by grand ser-
jeanty, nor by petit, but by simple services; being,
as it were, lands enfranchised by the king or his
predecessors from their ancient demesne. Their
tenants were sokemans. Wharton.
SOKE3IANS. In English law. Those who held
their lands in socage. 2 Bl. Comm. 100.
SOKE-REEVE. The lord's rent gatherer in the
soca. Cowell.
SOLA AC PER SE SENECTUS DONA TIONE3I
TESTAMENTUM AUT TRANSACTIONE3I NON
VITIAT. Old age does not alone and of itself
vitiate a will or gift. Van Alst v. Hunter, 5 Johns,
Ch., N.Y., 148, 158.
SOLAR. In Spanish law. Land; the demesne,
with a house, situate in a strong or fortified place.
White, New Recop. b. 1, tit. 5, c. 3, § 2.
SOLAR DAY. That period of time which begins
at sunrise and ends at sunset. Co. Litt. 135a.
SOLAR MONTIL A calendar month. See Month.
SOLARES. In Spanish law. Lots of ground. This
term is frequently found in grants from the Span-
ish government of lands in America. 2 White, Re-
cop. 474.
SOLARIUM. Lat. In the civil law. A rent paid
for the ground, where a person built on the public
land. A ground rent. Spelman; Calvin.
SOLATIUM. Compensation. Damages allowed
for injury to the feelings.
SOLD. See "Sale."
SOLD NOTE. A note given by a broker, who has
effected a sale of merchandise, to the buyer, stat-
ing the fact of sale, quantity, price, etc. Story,
Ag. § 28; Saladin v. Mitchell, 45 Ill. 83.
SOLDIER. A military man; a private in the
army.
Prior to induction a selectee is subject to Selec-
tive Training Act but is not yet a "soldier". Bill-
ings v. Truesdell, Kan., 64 S.Ct. 737, 741, 321 U.S.
542, 88 L.Ed. 917.
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SOLDIER
A member of the Women's Army Corps is a "soldier in
the military service." United States v. Willaims, D.C.N.Y.,
59 F.Supp. 300, 301.
SOLE. Single; individual; separate; the oppo-
site of joint; as a sole tenant. Fort Worth & D.
C. Ry. Co. v. Williams, Tex.Civ.App., 275 S.W. 415,
419.
Comprising Only one person; the opposite of
aggregate; as a sole corporation.
Unmarried; as a feme sole. See the nouns.
SOLE ACTOR DOCTRINE. Under this doctrine
a principal is charged with the knowledge of his
agent. It contemplates that agent must have os-
tensibly endeavored to benefit his principal, and
even though he did not do so and his acts were
for his personal benefit, possibly through defalca-
tion, the third party who obligated himself must
have been under the impression that he was deal-
ing with the principal. General American Life
Ins. Co. v. Anderson, D.C.Ky., 46 F.Supp. 189, 195,
196, 198. It is based on the presumption that by
reason of the relationship between an agent and
his principal the principal is presumed to have
been told everything the agent has "done and pre-
sumed to have known of his actions and promises.
Federal Deposit Ins. Corporation v. Pendleton, D.
C.Ky., 29 F.Supp. 779, 782, 783.
SOLE AND UNCONDITIONAL OWNER. See
Owner.
SOLEMN. Formal; in regular form; with all
the forms of a proceeding. As to solemn "Form,"
see Probate. As to solemn "Oath" and "War," see
the nouns.
SOLEMN OCCASION. Within constitutional pro-
vision empowering the Legislature to require the
opinion of the Justices on important questions of
law means occasion when such questions of law
are necessary to be determined by the body mak-
ing the inquiry in the exercise of the power in-
trusted to it by the Constitution or laws. In re
Opinion of the Justices, 217 Mass. 607, 105 N.E.
440, 441.
SOLEMNES LEGUM FORMULIE. Lat. In the
civil law. Solemn forms of laws; forms of for-
ensic proceedings and of transacting legal acts.
One of the sources of the unwritten law of Rome.
Butl. Hor. Jur. 47.
SOLEMNITAS ATTACHIAMENTORUM. In old
English practice. Solemnity or formality of at-
tachments. The issuing of attachments in a cer-
tain formal and regular order. Bract. fols. 439,
440; 1 Reeve, Eng. Law, 480.
SOLEMNITATES JURIS SUNT OBSERVANDIE.
The solemnities of law are to be observed. Jenk.
Cent. 13.
SOLEMNITY. A rite or ceremony; the formality
established by law to render a contract, agree-
ment, or other act valid.
SOLEMNIZE. A marriage, means no more than
to enter into a marriage contract, with due publi-
cation, before third persons, for the purpose of
giving it notoriety and certainty; which may be
before any persons, relatives, friTuls, or strangers,
competent to testify to the facts. See Dyer v.
Brannock, 66 Mo. 410, 27 Am.Rep. 359; Pearson
v. Howey, 11 N.J.L. 19; Bowman v. Bowman, 24
Ill.App. 172.
SOLICIT. To appeal for something; to apply to
for obtaining something; to ask earnestly; to
.sk for the purpose of receiving; to endeavor to
obtain by asking or pleading; to entreat, implore,
or importune; to make petition to; to plead for;
to try to obtain; and though the word implies a
serious request, it requires no particular degree
of importunity, entreaty, imploration, or supplica-
tion. People v. Phillips, 70 Cal.App.2d 449, 160 P.
2d 872, 874. To tempt a person; to lure on, espe-
cially into evil. People v. Rice, 383 Ill. 584, 50 N.E.
2d 711, 713. To awake or excite to action, or to
invite. In re Winthrop, 135 Wash. 135, 237 P. 3,
4; Briody v. De Kimpe, 91 N.J.Law, 206, 102 A.
688, 689. The term implies personal petition and
importunity addressed to a particular individual
to do some particular thing. Golden & Co. v. Jus-
tice's Court of Woodland Tp., Yolo County, 23
Cal.App. 778, 140 P. 49, 58.
SOLICITATION. Asking; enticing; urgent re-
quest. Any action which the relation of the par-
ties justifies in construing into a serious request.
State v. Underwood, 79 Or. 338, 155 P. 194. Thus
"solicitation of chastity" is the asking or urging
a woman to surrender her chastity. State v. Ren-
der, 203 Iowa 329, 210 N.W. 911; People v. Mur-
ray, 307 Ill. 349, 138 N.E. 649, 653. The word is
also used in such phrases as "solicitation to lar-
ceny," to bribery, etc.
SOLICITOR. In English law. A legal practition-
er in the court of chancery. The words "solicitor"
and "attorney" are commonly used indiscrimin-
ately, although they are not precisely the same,
an attorney being a practitioner in the courts of
common law, a solicitor, a practitioner in the
courts of equity. Most attorneys take out a cer-
tificate to practice in the courts of chancery, and
therefore become solicitors also, and, on the other
hand, most, if not all, solicitors take out a certifi-
cate to practice in the courts of common law, and
therefore become attorneys also. Brown.
SOLICITOR GENERAL. In English law. One of
the principal law officers of the crown, associated
in his duties with the attorney general, holding
office by patent during the pleasure of the sov-
ereign, and having a right of preaudience in the
courts. 3 Bl. Comm. 27. In American law, an
officer of the department of justice, next in rank
and authority to the attorney general, whose prin-
cipal assistant he is. His chief function is to
represent the United States in all cases in the
supreme court and the court of claims in which
the government is interested or to which it
is a party, and to discharge the duties of the at-
torney general in the absence or disability of that
officer or when there is a vacancy in the office.
Rev.St.U.S. §§ 347, 359 (5 U.S.C.A. §§ 293, 309).
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SOLUTUS
SOLICITOR OF THE SUPREME COURT. The
solicitors before the supreme courts, in Scotland,
are a body of solicitors entitled to practice in the
court of session, etc. Their charter of incorpora-
tion bears date August 10, 1797.
SOLICITOR OF THE TREASURY. An officer of
the United States attached to the department of
justice, having general charge of the law business
appertaining to the treasury.
SOLICITOR TO THE SUITORS' FUND. An of-
ficer of the English court of chancery, who is ap-
pointed in certain cases guardian ad litem.
SOLIDARITY. In the civil law, when several per-
sons bind themselves towards another for the
same sum, at the same time, and in the same con-
tract; and so obligate themselves that -each may
be compelled to pay the whole debt, and that pay-
ment made by one of them exonerates the others
towards the creditor; and the obligation thus con-
tracted is one, in solido, although one of the debt-
ors be obliged differently from the others to the
payment of one and the same thing; as if the
one be but conditionally bound, while the engage-
ment of the others is pure and simple, or if the
one is allowed a term which is not granted to the
others. Rex Credit Co. v. Long, La.App., 159 So.
359, 360.
SOLIDARY. A term of civil-law origin, signify-
ing that the right or interest spoken of is joint or
common. A "solidary obligation" corresponds to
a "joint and several" obligation in the common
law; that is, one for which several debtors are
bound in such wise that each is liable for the en-
tire amount, and not merely for his proportionate
share. But in the civil law the term also includes
the case where there are several creditors, as
against a common debtor, each of whom is en-
titled to receive the entire debt and give an ac-
quittance for it.
SOLIDUM. Lat. In the civil law. A whole; an
entire or undivided thing.
SOLIDUS LEGALIS. A coin equal to 13s. 4d. of
the present standard. 4 Steph. Comm. 119n. Or-
iginally the "solidus" was a gold coin of the By-
zantine Empire, but in medieval times the term
was applied to several varieties of coins, or as
descriptive of a money of account, and is supposed
to be the root from which "shilling" is derived.
SOLINUM. In old English law. Two plowlands,
and somewhat less than a half. Co. Litt. 5a.
SOLITARY CONFINEMENT. In a general sense,
the separate confinement of a prisoner, with only
occasional access of any other person, and that
only at the discretion of the jailer; in a stricter
sense, the complete isolation of a prisoner from
all human society, and his confinement in a cell
so arranged that he has no direct intercourse with
or sight of any human being, and no employment
or instruction. See Medley, Petitioner, 10 S.Ct.
384, 134 U.S. 160, 33 L.Ed. 835.
SOLO CEDIT QUOD SOLO IMPLANTATUR.
That which is planted in the soil belongs to the
soil. The proprietor of the soil becomes also the
proprietor of the seed, the plant, and the tree, as
soon as these have taken root. Mackeld. Rom.
Law, § 275.
SOLO CEDIT QUOD SOLO INJEDIFICATUR.
That which is built upon the soil belongs to the
soil. The proprietor of the soil becomes also pro-
prietor of the building erected upon it. Mackeld.
Rom. Law, § 275.
SOLUM PROVINCIALE. Lat. In Roman law.
The solum italicum (an extension of the old Ager
Romanus) admitted full ownership, and of the
application to it of usucapio; whereas the solum
provinciale (an extension of the old Ager Publi-
cus) admitted of a possessory title only, and of
longi temporis possessio only. Justinian abolish-
ed all distinctions between the two, sinking the
italicum to the level of the provinciale. Brown.
SOLUM REX HOC NON FACERE POTEST,
QUOD NON POTEST INJUSTE AGERE. 11
Coke, 72. This alone the king cannot do, he can-
not act unjustly.
SOLUS DEUS FACIT HZEREDEM, NON HOMO.
Co. Litt. 5. God alone makes the heir, not man.
SOLUTIO. Lat. In civil law. Payment, satisfac-
tion, or release; any species of discharge of an
obligation accepted as satisfactory by the creditor.
The term refers not so much to the counting out
of money as to the substance of the obligation.
Dig. 46, 3, 54; Id. 50, 16, 176.
SOLUTIO INDEBITI. In the civil law. Payment
of what was not due. From the payment of what
was not due arises an obligation quasi ex con-
tractu. When one has erroneously given or per-
formed something to or for another, for which he
was in no wise bound, he may redemand it, as
if he had only lent it. The term "solutio indebiti"
is here used in a very wide sense, and includes
also the case where one performed labor for an-
other, or assumed to pay a debt for which he was
not bound, or relinquished a right or released a
debt, under the impression that he was legally
bound to do so. Mackeld. Rom. Law, § 500.
SOLUTIO PRETII EMPTIONIS LOCO HAB-
ETUR. The payment of the price [of a thing] is
held to be in place of a purchase, [operates as a
purchase.] Jenk. Cent. p. 56, case 2; 2 Kent.
Comm. 387.
SOLUTIONE FEODI MILITIS PARLIAMENTI,
or FEODI BURGENSIS PARLIAMENTI. Old
writs whereby knights of the shire and burgesses
might have recovered their wages or allowance
if it had been refused. 35 Hen. VIII. c. 11.
SOLUTUS.
In the civil law. Loosed; freed from confine-
ment; set at liberty. Dig. 50, 16, 48.
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SOLUTUS
In Scotch practice. Purged. A term used in
old depositions.
SOLVABILITE. Fr. In French law. Ability to
pay; solvency. Emerig. Traite des Assur. c. 8,
§ 15.
SOLVENCY. Ability to pay debts as they mature,
Vandeventer v. Goss, 116 Mo.App. 316, 91 S.W. 958,
961. Ability to pay debts in the usual and ordin-
ary course of business. Jeck v. O'Meara, 343 Mo.
559, 122 S.W.2d 897, 903. Present ability of debtor
to pay out of his estate all his debts. Ring v.
Paint and Glass Co., 44 Mo.App. 111, 116. Excess
of assets over liabilities. Akin v. Hull, 222 Mo.
App. 1022, 9 S.W.2d 688, 690. Also such attitude of
a person's property as that it may be reached and
subjected by process of law, without his consent,
to the payment of such debts. Graf v. Allen, 230
Mo.App. 721, 74 S.W.2d 61, 66. The opposite of
insolvency (q. v.). Marsh v. Dunckel, 25 Hun (N.
Y.) 169; Osborne v. Smith, C.C.Minn., 18 F. 130;
Larkin v. Hapgood, 56 Vt. 601; Kennedy v. Burr,
101 Wash. 61, 171 P. 1022, 1024.
SOLVENDO. Lat. Paying. An apt word of re-
serving a rent in old conveyances. Co. Litt. 47a.
SOLVENDO ESSE. Lat. To be in a state of sol-
vency; i. e., able to pay.
SOLVENDO ESSE NEMO INTELLIGITUR NISI
QUI SOLLDUM POTEST SOLVERE. No one is
considered to be solvent unless he can pay all
that he owes. Dig. 50, 16, 114.
SOLVENDUM IN FUTURO. (Lat.) To be paid
in the future. Used of an indebtedness which is
said to be debitum, in presenti (due now) and sol-
vendum, in futuro (payable in the future). An
interest in an estate may be rested in presenti,
though it be solvendum in futuro, enjoyable in the
future.
SOLVENT. See Solvency.
For "solvent debt" and "solvent partner" see
"Debt" and "Partner."
SOLVERE. Lat. To pay; to comply with one's
engagement; to do what one has undertaken to
do; to release one's self from obligation, as by
payment of a debt. Calvin.
SOLVERE PCENAS. To pay the penalty.
SOLVIT. Lat. He paid; paid. 10 East, 206.
SOLVIT AD DIEM. He paid at the day. The
technical name of the plea, in an action of debt
on bond, that the defendant paid the money on the
day mentioned in the condition. 1 Archb. N. P.
220, 221.
SOLVIT ANTE DIEM. A plea that the money
was paid before the day appointed.
SOLVIT POST DIEM. He paid after the day.
The plea in an action of debt on bond that the
defendant paid the money after the day named
for the payment, and before the commencement
of the suit. 1 Archb. N. P. 222.
SOLVITUR ADIEUX SOCIETAS ETIAM MORTE
SOCII. A partnership is moreover dissolved by
the death of a partner. Inst. 3, 26, 5; Dig. 17, 2.
SOLVITUR EO LIGAMINE QUO LIGATUR. In
the same manner that a thing is bound it is un-
loosed. Livingston v. Lynch, 4 Johns. Ch. (N. Y.)
582.
SOMERSETT'S CASE. A celebrated decision of
the English king's bench, in 1771, (20 How. St.
Tr. 1,) that slavery no longer existed in England
in any form, and could not for the future exist
on English soil, and that any person brought into
England as a slave could not be thence removed
except by the legal means applicable in the case
of any free-born person.
SOMMATION. In French law. A demand served
by a huissier, by which one party calls upon an-
other to do or not to do a certain thing. This
document has for its object to establish that upon
a certain date the demand was made. Arg. Fr.
Merc. Law, 574.
SOMNAMBULISM. Sleep-walking. Whether this
condition is anything more than a co-operation of
the voluntary muscles with the thoughts which
occupy the mind during sleep is not settled by
physiologists. Wharton.
SOMPNOUR. In ecclesiastical law, an officer of
the ecclesiastical courts whose duty was to serve
citations or process.
SON. An immediate male descendant. The word
may be applied also to a distant male descend-
ent. In a broad use, term may be employed as
designating any young male person, as a pupil,
a ward, an adopted male child or dependent.
Lind v. Burke, 56 Neb. 785, 77 N.W. 444, 445.
The description son in wills, means primia facie legiti-
mate son. Flora v. Anderson, C.C.Ohio, 67 F. 182, 185; In
re Flood's Estate, 217 Cal. 763, 21 P.2d 579.
SON. Fr. His. See Civ. Code La. art. 3556.
Son assault demesne. His own assault. A plea
which occurs in the actions of trespass and tres-
pass on the case, by which the defendant alleges
that it was the plaintiff's own original assault
that occasioned the trespass for which he has
brought the action, and that what the defendant
did was merely in his own defense. Steph. Pl.
186; Oliverius v. Wicks, 107 Neb. 821, 187 N.W.
73, 74; Cameron Compress Co. v. Kubecka, Tex.
Civ.App., 283 S.W. 285, 287.
SON-IN-LAW. The husband of one's daughter.
Diebold v. Diebold, 235 Mo.App. 83, 141 S.W.2d
119, 125.
SONTAGE. A tax of forty shillings anciently
laid upon every knight's fee. Cowell.
SONTICUS. Lat. In the civil law. Hurtful;
injurious; hindering; excusing or justifying de-
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SOUNDING
lay. Morbus sonticus is any illness of so serious
a nature as to prevent a defendant from appear-
ing in court and to give him a valid excuse. Cal-
vin.
SOON. Within a reasonable time. Sanford v.
Shephard, 14 Kan. 232.
SOREHON, or SORN. An arbitrary exaction,
formerly existing in Scotland and Ireland. When-
ever a chieftain had a mind to revel, he came
down among the tenants with his followers, by
way of contempt called "Gilliwitfitts," and lived
on free quarters. Wharton; Bell.
SORNER. In Scotch law. A person who takes
meat and drink from others by force or menaces,
without paying for it. Bell.
SOROR. Lat. Sister. Inst. 3, 6, 1.
SORORICIDE. The killing or murder of a sister;
one who murders his sister. This is not a tech-
nical term of the law.
SORS. Lat. In old English law. A principal
lent on interest, as distinguished from the inter-
est itself.
A thing recovered in action, as distinguished
from the costs of the action.
In the civil law. Lot; chance; fortune; haz-
ard; a lot, made of wood, gold, or other material.
Money borrowed, or put out at interest. A prin-
cipal sum or fund, such as the capital of a part-
nership. Ainsworth; Calvin.
SORTITIO. Lat. In the civil law. A drawing
of lots. Sortitio judicum was the process of se-
lecting a number of judges, for a criminal trial,
by drawing lots.
SOUGH. In English law. A drain or water-
course. The channels or water-courses used for
draining mines are so termed; and those mines
which are near to any given sough, and lie with-
in the same level, and are benefited by it, are
technically said to lie within the title of that
sough. 5 Mees. & W. 228; Brown.
SOUL SCOT. A mortuary, or customary gift due
ministers, in many parishes of England, on the
death of parishioners. It was originally volun-
tary and intended as amends for ecclesiastical
dues neglected to be paid in the life-time. 2 Bl.
Comm. 425.
SOUND, v. To have reference or relation to; to
aim at. An action is technically said to sound in
damages where it is brought not for the specific
recovery of a thing, but for damages only. Steph.
P1. 105.
SOUND, adj. Whole; in good condition; market-
able. So used in warranties of chattels. See
Brown v. Bigelow, 10 Allen, Mass., 242; Hawkins
v. Pemberton, 35 How.Prac., N.Y., 383; Woodbury
v. Robbins, 10 Cush. (Mass.) 522. Free from
disease. Raney & Hamon v. Hamilton & White,
Tex.Civ.App., 234 S.W. 229, 230. The term may
also mean free from danger to the life, safety,
and welfare. Kuhn v. Cincinnati Traction Co.,
109 Ohio, St. 263, 142 N.E. 370, 373.
Sound and disposing mind and memory. Tes-
tamentary capacity. In re Hudson's Estate, 131
Minn. 439, 155 N.W. 392, 395. Such mind and
memory as enables testator to know and under-
stand business in which he is engaged at time of
making will. Farmers' Union Bank of Henning
v. Johnson, 27 Tenn.App. 342, 181 S.W.2d 369, 374.
Sound judicial discretion. Discretion exercised
on full and fair consideration of the facts present-
ed to the judge by the well-known and establish-
ed mode of procedure. Caldwell v. State, 164
Tenn. 325, 48 S.W.2d 1087, 1089. Discretion exer-
cised not arbitrarily or willfully but with regard
to what is right and equitable under the circum-
stances. Cornwell v. Cornwell, 73 App.D.C. 233,
118 F.2d 396, 398.
Sound health. In insurance law, means that
the applicant has no grave impairment or seri-
ous disease, and is free from any ailment that
seriously affects the general soundness and
healthfulness of the system. National Life &
Accident Ins. Co. of Nashville, Tenn., v. Martin,
35 Ga.App. 1, 131 S.E. 120, 121; Metropolitan Life
Ins. Co. v. Chappell, 151 Tenn. 299, 269 S.W. 21,
24. A state of health unimpaired by any serious
malady of which the person himself is conscious.
National Life & Accident Ins. Co. v. Ware, 169
Okl. 618, 37 P.2d 905.
Sound mind. The normal condition of the hu-
man mind,—that state in which its faculties of
perception and judgment are ordinarily well de-
veloped, and not impaired by mania, insanity, or
dementia. See Daly v. Daly, 183 Ill. 269, 55 N.E.
671; Delafield v. Parish, 25 N.Y. 102; Harrison
v. Rowan, 11 Fed.Cas. 661; Yoe v. McCord, 74
Ill. 37; Rodney v. Burton, 4 Boyce (Del.) 171, 86
A. 826, 829. In the law of wills means that tes-
tator must have been able to understand and
carry in mind, in a general way, nature and sit-
uation of his property, his relations to those hav-
ing claim to his remembrance, and nature of his
act. Needham Trust Co. v. Cookson, 251 Mass.
160, 146 N.E. 268; In re Lawrence's Estate, 286
Pa. 58, 132 A. 786, 789; In re Bossom's Will, 195
App.Div. 339, 186 N.Y.S. 782, 786; Rose v. Rose,
Mo.Sup., 249 S.W. 605, 607.
Sound value. Of property within fire policy
is the cash value of property, making an allow-
ance for depreciation due to use at and imme-
diately preceding the time of the fire. Reliance
Ins. Co. v. Bowen, Tex.Civ.App., 54 S.W.2d 597,
598.
SOUNDING IN DAMAGES. When an action is
brought, not for the recovery of lands, goods, or
sums of money, (as is the case in real or mixed
actions or the personal action of debt or detimie,)
but for damages only, as in covenant, trespass,
etc., the action is said to be "sounding in dam-
ages." Steph. Pl. 116. See Collins v. Greene, 67
Ala. 211; Rosser v. Bunn, 66 Ala. 93.
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SOUNDNESS
SOUNDNESS. General health; freedom from
any permanent disease. 1 Car. & M. 291. See
"Sound."
SOURCE. That from which any act, movement,
or effect proceeds; a person or thing that origi-
nates, sets in motion, or is a primary agency in
producing any course of action or result; an or-
iginator; creator; origin. A place where some-
thing is found or whence it is taken or derived.
Jackling v. State Tax Commission, 40 N.M. 241,
58 P.2d 1167, 1171.
The source of income. Place where it is pro-
duced. Union Electric Co. v. Coale, 347 Mo. 175,
146 S.W.2d 631, 635.
SOURCES OF THE LAW. The origins from
which particular positive laws derive their au-
thority and coercive force. Such are constitu-
tions, treaties, statutes, usages, and customs.
In another sense, the authoritative or reliable
works, records, documents, edicts, etc., to which
we are to look for an understanding of what con-
stitutes the law. Such, for example, with refer-
ence to the Roman law, are the compilations of
Justinian and the treatise of Gaius; and such,
with reference to the common law, are especially
the ancient reports and the works of such writ-
ers as Bracton, Littleton, Coke, Fleta, and others.
SOUS. Fr. Under.
SOUS SEING PRIVE. Fr. In French law. Un-
der private signature; under the private signa-
ture of the parties. A contract or instrument thus
signed is distinguished from an "authentic act,"
which is formally concluded before a notary or
judge. Civil Code La. art. 2240.
SOUTH SEA FUND. The produce of the taxes
appropriated to pay the interest of such part of
the English national debt as was advanced by the
South Sea Company and its annuitants. The
holders of South Sea annuities have been paid
off, or have received other stock in lieu thereof.
2 Steph.Comm. 578.
SOVEREIGN. A person, body, or state in which
independent and supreme authority is vested; a
chief ruler with supreme power; a king or other
ruler with limited power.
In English law. A gold coin of Great Britain,
of the value of a pound sterling.
SOVEREIGN IMMUNITY OF STATE FROM
LIABILITY. Exists when the state is engaged in
a governmental function. Manion v. State, 303
Mich. 1, 5 N.W.2d 527, 528.
SOVEREIGN PEOPLE. The political body, con-
sisting of the entire number of citizens and quali-
fied electors, who, in their collective capacity,
possess the powers of sovereignty and exercise
them through their chosen representatives. See
Scott v. Sandford, 19 How. 404, 15 L.Ed. 691.
SOVEREIGN POWER or SOVEREIGN PRE-
ROGATIVE. That power in a state to which none
other is superior or equal, and which includes all
the specific powers necessary to accomplish the
legitimate ends and purposes of government. See
Boggs v. Merced Min. Co., 14 Cal. 309; Donnelly
v. Decker, 58 Wis. 461, 17 N.W. 389, 46 Am.Rep.
637; Com. v. Alger, 7 Cush., Mass., 81; 'Etna
Casualty & Surety Co. v. Bramwell, D.C.Or., 12
F.2d 307, 309.
SOVEREIGN RIGHT. A right which the state
alone, or some of its governmental agencies, can
possess, and which it possesses in the character
of a sovereign, for the common benefit, and to
enable it to carry out its proper functions; dis-
tinguished from such "proprietary" rights as a
state, like any private person, may have in prop-
erty or demands which it owns. See St. Paul v.
Chicago, etc., R. Co., 45 Minn. 387, 48 N.W. 17.
SOVEREIGN STATES. States whose subjects or
citizens are in the habit of obedience to them,
and which are not themselves subject to any other
(or paramount) state in any respect. The state
is said to be semi-sovereign only, and not sover-
eign, when in any respect or respects it is lia-
ble to be controlled (like certain of the states in
India) by a paramount government, (e. g., by the
British empire.) Brown. In the intercourse of
nations, certain states have a position of entire
independence of others, and can perform all those
acts which it is possible for any state to perform
in this particular sphere. These same states have
also entire power of self-government; that is, of
independence upon all other states as far as their
own territory and citizens not living abroad are
concerned. -No foreign power or law can have
control except by convention. This power of in-
dependent action in external and internal rela-
tions constitutes complete sovereignty. Wools.
Pol. Science, I. 204.
SOVEREIGNTY. The supreme, absolute, and un-
controllable power by which any independent
state is governed; supreme political authority;
paramount control of the constitution and frame
of government and its administration; the self-
sufficient source of political power, from which
all specific political powers are derived; the in-
ternational independence of a state, combined
with the right and power of regulating its internal
affairs without foreign dictation; also a political
society, or state, which is sovereign and independ-
ent. Chisholm v. Georgia, 2 Dall. 455, 1 L.Ed. 440;
Union Bank v. Hill, 3 Cold., Tenn., 325; Moore
v. Shaw, 17 Cal. 218, 79 Am.Dec. 123; State v.
Dixon, 66 Mont. 76, 213 P. 227.
The power to do everything in a state without
accountability,—to make laws, to execute and to
apply them, to impose and collect taxes and levy
contributions, to make war or peace, to form
treaties of alliance or of commerce with foreign
nations, and the like. Story, Const. § 207.
"Sovereignty" in government is that public authority
which directs or orders what is to be done by each mem-
ber associated in relation to the end of the association. It
is the supreme power by which any citizen is governed and
is the person or body of persons in the state to whom there
is politically no superior. The necessary existence of the
state and that right and power which necessarily follow is
"sovereignty." By "sovereignty" in its largest sense is
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SPECIAL
meant supreme, absolute, uncontrollable power, the abso-
lute right to govern. The word which by itself comes
nearest to being the definition of "sovereignty" is will or
volition as applied to political affairs. City of Bisbee v.
Cochise County, 52 Ariz. 1, 78 P.2d 982, 986.
SOVERTIE. In old Scotch law. Surety. Skene.
SOWLEGROVE. February; so called in South
Wales. Cowell.
SOWMING AND ROWMING. In Scotch law.
Terms used to express the form by which the
number of cattle brought upon a common by
those having a servitude of pasturage may be
justly proportioned to the rights of the different
persons possessed of the servitude. Beli.
SOWNE. In old English law. To be leviable.
An old exchequer term applied to sheriff's re-
turns. 4 Inst. 101; Cowell; Spelman.
SPADARIUS. Lat. A sword-bearer. Blount.
SPADONES. Lat. In the civil law. Impotent
persons. Those who, on account of their tempera-
ment or some accident they have suffered, are
unable to procreate. Inst. 1, 11, 9; Dig. 1, 7, 2, 1.
SPARSDI. Lat. Here and there; scattered; at
intervals.  For instance, trespass to realty by
cutting timber sparsim (here and there) through
a tract.
SPATIE PLACITUM. In old English law. A
court for the speedy execution of justice upon
military delinquents. Cowell.
SPEAK. In practice. To argue. "The case was
ordered to be spoke to again." 10 Mod. 107. See
Imparlance; Speaking with Prosecutor.
SPEAKER. The official designation of the presi-
dent or chairman of certain legislative bodies,
particularly of the house of representatives in
the congress of the United States, of one or both
branches of several of the state legislatures, and
of the two houses of the British parliament.
The term "speaker," as used in reference to
oither of the houses of parliament, signifies the
functionary acting as chairman. In the com-
mons his duties are to put questions, to preserve
order, and to see that the privileges of the house
are not infringed; and, in the event of the num-
bers being even on a division, he has the privi-
lege of giving the casting vote. The speaker of
the lords is the lord chancellor or the lord keeper
of the great seal of England, or, if he be absent,
the lords may choose their own speaker. The du-
ties of the speaker of the lords are principally
confined to putting questions, and the lord chan-
cellor has no more to do with preserving order
than any other peer. Brown.
SPEAKING DEMURRER. See Demurrer.
SPEAKING ORDER. See Order.
SPEAKING WITH PROSECUTOR. A method of
compounding an offense, allowed in the English
practice, where the court permits a defendant
convicted of a misdemeanor to speak with the
prosecutor before judgment is pronounced; if the
prosecutor declares himself satisfied, the court
may inflict a trivial punishment. 4 Steph.Comm.
261.
SPECIAL. Relating to or designating a species,
kind, individual, thing, or sort; designed for a
particular purpose; confined to a particular pur-
pose, object, person, or class. Unusual, extraor-
dinary. National Cash Register Co. v. Wall, 58
Mont. 60, 190 P. 135; Steele-Smith Dry Goods Co.
v. Birmingham Ry., Light & Power Co., 15 Ala.
App. 271, 73 So. 215; People ex rel. City of New
York v. Deyo, 158 App.Div. 319, 143 N.Y.S. 334, 335;
State ex rel. and to use of Vaught v. Atchison, T.
& S. F. Ry. Co., 270 Mo. 251, 192 S.W. 990, 995.
As to special "Acceptance," "Administration,"
"Agent," "Allocatur," "Allowances," "Appear-
ance," "Assessment," "Assumpsit," "Bail," "Bail-
iff," "Bastard," "Benefit," "Calendar," "Charge,"
"Constable," "Contract," "Count," "Covenant,"
"Custom," "Damage," "Demurrer," "Deposit,"
"Deputy," "Election," "Finding," "Guaranty,"
"Guardian," "Imparlance," "Indorsement," "In-
dorsement of Writ," "Injunction," "Insurance,"
"Issue," "Jury," "Legacy," "Letter of Credit," "Li-
cense," "Limitation," "Malice," "Master," "Meet-
ing," "Mortgage," "Motion," "Non Est Factum,"
"Occupant," "Owner," "Partner," "Partnership,"
"Plea," "Pleader," "Pleading," "Power," "Privi-
lege," "Proceeding," "Property," "Request," "Re-
plication," "Restraint of Trade," "Retainer,"
"Rule," "Service," "Sessions," "Statute," "Stock,"
"Tail," "Term," "Terms," "Traverse," "Trust,"
"Verdict," and "Warranty," see those titles.
SPECIAL ACT. A private statute; an act which
operates only upon particular persons or private
concerns. 1 Bl.Comm. 86; Unity v. Burrage, 103
U.S. 454, 26 L.Ed. 405.
SPECIAL CASE. In English practice. When a
trial at nisi prius appears to the judge to turn on
a point of law, the jury may find a general ver-
dict, subject to the opinion of the court above, up-
on what is termed a "special case" to be made;
that is, upon a written statement of all the facts
of the case drawn up for the opinion of the court
in bane, by the counsel and attorneys on either
side, under correction of the judge at nisi prius.
The party for whom the general verdict is so
given is in such case not entitled to judgment
till the court in banc has decided on the special
case; and, according to the result of that deci-
sion, the verdict is ultimately entered either for
him or his adversary. Brown.
SPECIAL CLAIM. In English law. A claim not
enumerated in the orders of April 22, 1850, which
required the leave of the court of chancery to file
it. Such claims are abolished.
SPECIAL COMMISSION. In English law. An
extraordinary commission of oyer and terminer
and gaol delivery, issued by the crown to the
judges when it is necessary that offenses should
be immediately tried and punished. Wharton.
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SPECIAL
SPECIAL ERRORS. Special pleas in error are
such as, instead of joining in error, allege some
extraneous matter as a ground of defeating the
writ of error, e. g., a release of errors, expira-
tion of the time within which error might be
brought, or the like. To these, the plaintiff in
error may either reply or demur.
SPECIAL EXAMINER. In English law. Some
person, not one of the examiners of the court of
chancery, appointed to take evidence in a particu-
lar suit. This may be done when the state of
business in the examiner's office is such that it is
impossible to obtain an appointment at a con-
veniently early day, or when the witnesses may
be unable to come to London. Hunt. Eq. pt. I. c.
5, § 2.
SPECIAL EXCEPTION. An objection to the
form in which a cause of action is stated. Coch-
ran v. People's Nat. Bank, Tex.Civ.App., 271 S.W.
433, 434.
SPECIAL EXECUTION. A copy of a judgment
with a direction to the sheriff indorsed thereon
to execute it. Crombie v. Little, 47 Minn. 581, 50
N.W. 823. One that directs a levy upon some
special property. Oklahoma Salvage & Supply
Co. v. First Nat. Bank, 122 Oki. 128, 251 P. 1006,
1007.
SPECIAL EXECUTOR. One whose power and of-
fice are limited, either in respect to the time or
place of their exercise, or restricted to a particu-
lar portion of the decedent's estate.
One only empowered by will to take charge of a limited
portion of the estate, or such part as may lie in one place,
or to carry on the administration only to a prescribed
point.
SPECIAL FACTS RULE. In corporation law, as
respects director's duty of disclosure when deal-
ing with stockholders, is that where special cir-
cumstances or facts are present which make it
inequitable for the director to withhold informa-
tion from the stockholder, the duty to disclose
arises, and concealment is fraud. Taylor v.
Wright, 69 Cal.App.2d 371, 159 P.2d 980, 985.
SPECIAL JURISDICTION. A court authorized
to take cognizance of only some few kinds of
causes or proceedings expressly designated by
statute is called a "court of special jurisdiction."
SPECIAL LAW. One relating to particular per-
sons or things; one made for individual cases
or for particular places or districts; one operat-
ing upon a selected class, rather than upon the
public generally. State v. Irwin, 5 Nev. 120;
Sargent v. Union School Dist., 63 N.H. 528, 2 A.
641; Dodge v. Youngblood, Tex.Civ.App., 202 S.W.
116, 118; Ex parte Crane, 27 Idaho 671, 151 P.
1006, 1011, L.R.A.1918A, 942; State v. Daniel, 87
Fla. 270, 99 So. 804, 809. A law is "special" when
it is different from others of the same general
kind or designed for a particular purpose, or
limited in range or confined to a prescribed field
of action or operation. State v. Johnson, 170 N.
C. 685, 86 S.E. 788, 792,
A law is not special and local in a constitutional sense, if
it affects all persons in like circumstances in the same
manner. St. Louis-San Francisco Ry. Co. v. Bledsoe, C.C.
A.Okl., 7 F.2d 364, 366. Whether an act be local or special
is determined by the generality with which it affects the
people as a whole, rather than the extent of territory over
which it is operative, and, if it equally affects all people
coming within its operation, it is not local or special.
State ex rel. Garvey v. Buckner, 308 Mo. 390, 272 S.W. 940,
942. In taxation cases, courts make no distinction between
"special law" and "local law." Bozarth v. Egg Harbor
City, 85 N.J.Law, 412, 89 A. 920, 921. The phrases "spe-
cial act" and "private act" mean the same thing. Federal
Trust Co. v. East Hartford Fire Dist., C.C.A.Conn., 283 F.
95, 98
SPECIAL LIEN. A special lien is in the nature
of a particular lien, being a lien upon particular
property; a lien which the holder can enforce
only as security for the performance of a particu-
lar act or obligation and of obligations incidental
thereto. Green v. Coast Line R. Co., 97 Ga. 15,
24 S.E. 814, 33 L.R.A. 806, 54 Am.St.Rep. 379; Civ.
Code Cal. § 2875; Marks v. Baum Bldg. Co., 73
Okl. 264, 175 P. 818, 822.
SPECIAL MATTER. Under a plea of the gen-
eral issue, the defendant is allowed to give spe-
cial matter in evidence, usually after notice to the
plaintiff of the nature of such matter, thus spar-
ing him the necessity of pleading it specially. 3
Bl.Comm. 306.
SPECIAL PAPER. A list kept in the English
courts of common law, and now in the king's
bench, common pleas, and exchequer divisions of
the high court, in which list demurrers, special
cases, etc., to be argued are set down. It is dis-
tinguished from the new trial paper, peremptory
paper, crown paper, revenue paper, etc., according
to the practice of the particular division. Whar-
ton.
SPECIAL PLACE. In Negotiable Instruments.
A bank, office, or any other place of business,
house or residence, usually occupied by people for
business, social, or other purposes, without refer-
ence to its location, whether within or without a
city, town, or village as distinguished from the
city, town or village. O'Connor v. Kirby Inv. Co.,
Tex.Civ.App., 262 S.W. 554, 556; Maddock v. Mc-
Donald, 111 Or. 448, 227 P. 463, 464; Corbett v.
Ulsaker Printing Co., 49 N.D. 103, 190 N.W. 75,
76, 24 A.L.R. 1047; Harrison v. Beals, 111 Or. 563,
222 P. 728, 731; Moore v. Knemeyer, Tex.Civ.App.,
271 S.W. 653, 654.
SPECIAL REGISTRATION. In election laws.
Registration for particular election only which
does not entitle elector to vote at any succeeding
election. Cowart v. City of Waycross, 159 Ga.
589, 126 S.E. 476, 479.
SPECIALIA GENERALIBUS DEROGANT. Spe-
cial words derogate from general words. A spe-
cial provision as to a particular subject-matter is
to be preferred to general language, which might
have governed in the absence of such special pro-
vision. L.R. 1 C.P. 546.
SPECIALIST. In stock exchange. Broker who
remains at one post of exchange where particular
stocks are dealt in and executes orders of other
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SPECULATIVE
brokers, for which he receives commission; one
who specializes in limited group of stocks. In re
Brown, 242 N.Y. 1, 150 N.E. 581, 585, 44 A.L.R.
510; People ex rel. Berdan v. Goldfogle, 213 App.
Div. 702, 211 N.Y.S. 107.
SPECIALTY. A contract under seal. Furst v.
Brady, 375 - Ill. 425, 31 N.E.2d 606, 609, 133 A.L.R.
558.
A writing sealed and delivered, containing some
agreement. A writing sealed and delivered, which
is given as a security for the payment of a debt,
in which such debt is particularly specified. Bac.
Abr. "Obligation," A.
A corporate seal is not necessary to the contract of a
corporation, and hence it is generally deemed that the
affixing of a corporate seal to an instrument not required
to be executed with that formality indicates that the in-
strument was intended to be a "specialty", bat there is
an exception if it appears from the instrument itself that
the instrument was not intended to be a specialty. Caruth-
ers v. Peninsular Life Ins. Co., 150 Fla. 467, 7 So.2d 841,
842.
SPECIALTY DEBT. A debt due or acknowledged
to be due by deed or instrument under seal. 2 Bl.
Comm. 465.
SPECIE. Coin of the precious metals, of a cer-
tain weight and fineness, and bearing the stamp
of the government, denoting its value as currency.
Trebilcock v. Wilson, 12 Wall. 695, 20 L.Ed. 460;
Walkup v. Houston, 65 N.C. 501;. Henry v. Bank of
Salina, 5 Hill, N.Y., 536.
When spoken of a contract, the expression "per-
formance in specie" means strictly, or according
to the exact terms. As applied to things, it signi-
fies individuality or identity. Thus, on a be-
quest of a specific picture, the legatee would be
said to be entitled to the delivery of the picture in
specie; i. e., of the very thing. Whether a thing
is due in genere or in specie depends, in each case,
on the will of the transacting parties. Brown.
SPECIES. Lat. In the civil law. Form; figure;
fashion or shape. A form or shape given to ma-
terials.
SPECIES FACTI. In Scotch law. The particular
criminal act charged against a person.
SPECIFIC. Precisely formulated or restricted;
definite; explicit; of an exact or particular na-
ture. People v. Thomas, 25 Ca1.2d 880, 156 P.2d 7,
17. Having a certain form or designation; ob-
serving a certain form; particular; precise; tend-
ing to specify, or to make particular, definite, lim-
ited or precise. Republic Casualty Co. v. Scand-
inavian-American Bank, D.C.Wash., 2 F.2d 113,
114; Western Union Telegraph Co. v. South &
N. A. R. Co., 184 Ala. 66, 62 So. 788, 793.
As to specific "Denial," "Devise," "Legacy,"
and "Performance," see those titles.
SPECIFICALLY. In a specific manner; explicit-
ly, particularly, definitely. Straton v. Hodgkins,
109 W.Va. 536, 155 S.E. 902.
SPECIFICATIO. Lat. In the civil law. Literal-
ly, a making of form; a giving of form to mater-
ials. That mode of acquiring property through
which a person, by transforming a thing belong-
ing to another, especially by working up his ma-
terials into a new species, becomes proprietor of
the same. Mackeld. Rom. Law, § 271.
SPECIFICATION. As used in the law relating
to patents, machinery and in building contracts,
a particular or detailed statement of the various
elements involved. Gilbert v. U. S., 1 Ct.C1. 34;
State v. Kendall, 15 Neb. 262, 18 N.W. 85; Wilson
v. Coon, C.C.N.Y., 6 F. 614; State Bank of Free-
port v. Cape Girardeau & C. R. Co., 172 MO.App.
662, 155 S.W. 1111, 1113; R. J. Waddell Inv. Co, v.
Hall, 255 Mo. 675, 164 S.W. 541, 544.
Law of Personal Property
The acquisition of title to a thing by working it
into new forms or species from the raw material;
corresponding to the specificatio of the Roman
law. See Lampton v. Preston, 1 J. J. Marsh, Ky.,
462, 19 Am.Dec. 104.
Right by "specification" can only be acquired when,
without the accession of any other material that of another
person, which has been used by the operator innocently,
has been converted by him into something specifically dif-
ferent in the inherent and characteristic qualities, which
identify it. Such is the conversion of corn into meal, of
grapes into wine, etc. Bozeman Mortuary Ass'n v. Fair-
child, 253 Ky. 74, 68 S.W.2d 756, 92 A.L.R. 419.
Military Law
The clear and particular description of the
charges preferred against a person accused of a
military offense. Tytler, Mil. Law, 109; Carter v.
McClaughry, 22 S.Ct. 181, 183 U.S. 365, 46 L.Ed.
236.
Practice
A detailed and particular enumeration of sev-
eral points or matters urged or relied on by a
party to a suit or proceeding; as, a "specification
of errors," or a "specification of grounds of oppo-
sition to a bankrupt's discharge." See Railway
Co. v. McArthur, 96 Tex. 65, 70 S.W. 317; In re
Glass, D.C.Tenn., 119 F. 514; Frank v. Ruzicka, 45
S.D. 49, 185 N.W. 371, 372.
SPECIFY. To mention specifically; to state in
full and explicit terms; to point out; to tell or
state precisely or in detail; to particularize, or to
distinguish by words one thing from another. In-
dependent Highway Dist. No. 2 of Ada County v.
Ada County, 24 Idaho 416, 134 P. 542, 545; Roche
Valley Land Co. v. Barth, 67 Mont. 353, 215 P.
654, 655; Aleksich v. Industrial Accident Fund,
116 Mont. 127, 151 P.2d 1016, 1021.
SPECIMEN. A sample; a part of something in-
tended to exhibit the kind and quality of the
whole. People v. Freeman, 1 Idaho 322.
SPECULATION. Buying or selling with expecta-
tion of profiting by a rise or fall in price; also
engaging in hazardous business transactions for
the chance of unusually large profit. Clucas v.
Bank of Montclair, 110 N.J.L. 394, 166 A. 311, 313,
394, 88 A.L.R. 302.
SPECULATIVE DAMAGES. See Damages.
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SPECULUM
SPECULUM. Lat. Mirror or looking-glass. The
title of several of the most ancient lawbooks or
compilations. One of the ancient Icelandic books
is styled "Speculum Regale."
SPEEDY EXECUTION. An execution which, by
the direction of the judge at nisi prius, issues
forthwith, or on some early day fixed upon by
the judge for that purpose after the trial of the
action. Brown.
SPEEDY REMEDY. One which, having in mind
the subject-matter involved, can be pursued with
expedition and without essential detriment to the
party aggrieved. State v. District Court of Thir-
teenth Judicial Dist. in and for Yellowstone Coun-
ty, 50 Mont. 289, 146 P. 743, 745, Ann.Cas.1917C,
164.
SPEEDY TRIAL. In criminal law. As secured by
constitutional guaranties, a trial conducted ac-
cording to fixed rules, regulations, and proceedings
of law, free from unreasonable delay. People v.
Hall, 64 N.Y.S. 433, 51 App.Div. 57; Nixon v. State,
2 Smedes & M., Miss., 507, 41 Am.Dec. 601; Hicks
v. Boyne, 236 Mich. 689, 211 N.W. 35; , Arrow-
smith v. State, 131 Tenn. 480, 175 S.W. 545, 547,
L.R.A.1915E, 363; State v. Clark, 86 Or. 464, 168
P. 944, 946. A trial as soon after indictment as
prosecution can with reasonable diligence pre-
pare for it. People v. Molinari, 23 Cal.App.2d
Supp. 761, 67 P.2d 767, 770.
It does not mean trial immediately after defendant's ap-
prehension and indictment, but trial consistent with court's
business. People v. Wilson, 356 Ill. 256, 190 N.E. 270, 272.
SPELLING. The formation of words by letters;
orthography. Incorrect spelling does not vitiate
a written instrument if the intention clearly ap-
pears.
SPEND. To consume by using in any manner, to
use up, to exhaust, distribute, as to expend money
or any other possession. Levenson v. Wolfson,
42 Ohio App. 332, 182 N.E. 116.
SPENDTHRIFT. One who spends money pro-
fusely and improvidently; a prodigal; one who
lavishes or wastes his estate. Taylor v. Koenig-
stein, 128 Neb. 809, 260 N.W. 544.
In some jurisdictions, under statutes, a person who by
excessive drinking, gaming, idleness, or debauchery of any
kind shall so spend, waste, or lessen his estate as to expose
himself or his family to want or suffering, or expose the
town to charge or expense for the support of himself or
family. Rev.St.Maine, c. 67, § 4, cl. 2 (Rev.St.1930, c. 80, §
4, cl. 2) ; Pub. Laws N.H,1926, c. 291, § 4; G.L.Mass., c.
201, § 8; Smith-Hurd Rev.St.I11.1931, c. 86, § 53; Young v.
Young, 87 Me. 44, 22 A. 782; Morey's Appeal, 57 N.H. 54;
Norton v. Leonard, 12 Pick., Mass., 152, 161; In re Bishop,
149 Ill.App. 491, 498.
Every person who is liable to be put under guardianship
on account of excessive drinking, gaming, idleness, or de-
bauchery. Comp. Laws Mich.1929, § 15777; G.L.Vt. 3651.
SPENDTHRIFT TRUST. A trust created to pro-
vide a fund for the maintenance of a beneficiary,
and at the same time to secure it against his im-
providence or incapacity. In re Nicholson's Es-
tate, 104 Colo. 561, 93 P.2d 880, 883. One which
provides a fund for benefit of another than settlor,
secures it against beneficiary's own improvidence,
and places it beyond his creditors' reach. Green-
wich Trust Co. v. Tyson, 129 Conn. 211, 27 A.2d
166, 171, 172. Provisions against alienation of the
trust fund by the voluntary act of the beneficiary
or by his creditors are the usual incidents. Estes
v. Estes, Tex.Civ.App., 255 S.W. 649, 650; New-
comb v. Masters, 287 Ill. 26, 122 N.E. 85, 87; Plitt
v. Yakel, 129 Md. 464, 99 A. 669, 670; Keating v.
Keating, 182 Iowa 1056, 165 N.W. 74, 79; Graham
v. More, Mo., 189 S.W. 1186, 1188; Newell v.
Tubbs, 103 Colo. 224, 84 P.2d 820, 821.
To constitute valid "spendthrift trust," legal title must
be vested in trustee; gift must be only of income to a
beneficiary, taking no estate, having no power of aliena-
tion, right to possession, nor beneficial interest in property
save qualified right to support and equitable interest in
income; and trust must be active one. Chinnis v. Cobb,
210 N.C. 104, 185 S.E. 638, 640.
SPERATE. That of which there is hope. Thus a
debt which one may hope to recover may be called
"sperate," in opposition to "desperate." See 1
Chit. Pr. 520.
SPES ACCRESCENDI. Lat. Hope of surviving.
3 Atk. 762; 2 Kent, Comm. 424.
SPES EST VIGILANTIS SOMNIUM. Hope is the
dream of the vigilant. 4 Inst. 203.
SPES IMPUNITATIS CONTINUUM AFFECTUM
TRIBUIT DELINQUENDI. The hope of impun-
ity holds out a continual temptation to crime. 3
Inst. 236.
SPES RECUPERANDI. Lat. The hope of recov-
ery or recapture; the chance of retaking property
captured at sea, which prevents the captors from
acquiring complete ownership of the property un-
til they have definitely precluded it by effectual
measures. 1 Kent, Comm. 101.
SPIGURNEL. The sealer of the royal writs.
SPINNING HOUSE. A house of correction to
which the authorities of Oxford and Cambridge
may send persons (mostly women of frivolous
character) not members of the University who are
found consorting with the students, to the detri-
ment of their morals. 4 Steph. Comm. 264.
SPINSTER. The addition given, in legal proceed-
ings, and in conveyancing, to a woman who never
has been married.
SPIRITUAL. Relating to religious or ecclesiasti-
cal persons or affairs, as distinguished from "sec-
ular" or lay, worldly, or business matters. John-
son v. State, 107 Miss. 196, 65 So. 218, 220, 51 L.R.
A., N.S., 1183.
As to spiritual "Corporation," "Courts," and
"Lords," see those titles.
SPIRITUALITIES OF A BISHOP. Those profits
which a bishop receives in his ecclesiastical char-
acter, as the dues arising from his ordaining and
instituting priests, and such like, in contradistinc-
tion to those profits which he acquires in his tem-
poral capacity as a baron and lord of parliament,
and which are termed his "temporalities," consist-
ing of certain lands, revenues, and lay fees, etc.
Cowell
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SPONSIO
SPIRITUALITY OF BENEFICES. In ecclesiasti-
cal law. The tithes of land, etc. Wharton.
SPIRITUOUS LIQUORS. Inflammable liquids
produced by distillation, and forming an article
of commerce. Blankenship v. State, 93 Ga. 814,
21 S.E. 130; State v. Munger, 15 Vt. 293; Allred
v. State, 89 Ala. 112, 8 So. 56; State v. Dennison, 85
W.Va. 261, 101 S.E. 458, 459; Shaneyfelt v. State,
8 Ala.App. 370, 62 So. 331, 332; Billing v. State,
99 Tex.Cr.R. 653, 271 S.W. 607.
The phrase "spirituous liquor," in a penal statute, can-
not be extended beyond its exact literal sense. Spirit is
the name of an inflammable liquor produced by distilla-
tion. Wine is the fermented juice of the grape, or a prep-
aration of other vegetables by fermentation; hence the
term does not include wine. State v. Moore, 5 Blackf.,
Ind., 118.
SPITAL, or SPITTLE. A charitable foundation;
a hospital for diseased people; a hospital. Cow-
ell.
SPITE FENCE. A fence of no beneficial use to
person erecting and maintaining it on his land
and maintained solely for purpose of annoying
owner of adjoining land. Burris v. Creech, 220
N.C. 302, 17 S.E.2d 123. A high and unsightly
fence erected to annoy a neighbor or adjoining
landowner by obstructing his air, light or view.
Kuzniak v. Kozminski, 107 Mich. 444, 65 N.W. 275,
61 Am.St.Rep. 344; Wood, Nuis., 2d Ed., § 6.
SPLIT SENTENCE. One where penalty of fine
and imprisonment, as provided by statute, is im-
posed and imprisonment part is suspended and
fine part enforced. Cote v. Cummings, 126 Me.
330, 138 A. 547, 552.
SPLITTING A CAUSE OF ACTION. Dividing a
single cause of action, claim, or demand into two
or more parts, and bringing suit for one of such
parts only. The plaintiff who does this is bound
by his first judgment, and can recover no more.
2 Black, Judgm. § 734. Birdville Independent
School Dist. v. Deen, Tex.Civ.App., 114 S.W.2d 628,
632. Commencement of an action for only a part
of the cause of action. Silber v. James Drug
Stores, 124 N.J.L. 401, 11 A.2d 756, 758. Floyd v.
C. I. T. Corporation, 191 S.C. 518, 5 S.E.2d 299, 301.
There is no "splitting of causes" where demand which
is subject of second action was not due at time of the first
action. Glavich v. Industrial Accident Commission of Cali-
fornia, 44 Cal.App.2d 517, 112 P.2d 774, 778.
The rule against "splitting causes of action" does not
mean that plaintiff cannot sue for less than is his due but
means merely that if he does so he may be precluded from
maintaining another action for the remainder of the same
demand. Scientific & Hospital Supply Corporation v. Board
of Education of City of New York, 16 N.Y.S.2d 91, 93, 172
Misc. 770.
The rule against "splitting cause of action" applies only
when several actions are between same parties. Warnecke
v. Foley, 234 Iowa 348, 11 N.W.2d 457, 459.
SPOLIATION.
English Ecclesiastical Law
An injury done by one clerk or incumbent to
another, in taking the fruits of his benefice with-
out any right to them, but under a pretended title.
3 Bl. Comm. 90, 91.
The name of a suit sued out in the spiritual
court to recover for the fruits of the church or
for the church itself. Fitzh. Nat. Brev. 85.
Torts
Destruction of a thing by the act of a stranger,
as the erasure or alteration of a writing by the
act of a stranger. This has not the effect tp de-
stroy its character or legal effect. 1 Greenl. Ev.
§ 566; Medlin v. Platt County, 8 Mo. 239, 40 Am.
Dec. 135; Edwards v. Thompson, 99 Wash. 188, 169
P. 327, 328; Knox v. Horne, Tex.Civ.App., 200 S.
W. 259, 260; Cooper v. Hembree, 194 Okl. 465, 152
P:2d 695, 697.
SPOLIATOR. Lat. A spoiler or destroyer. It is
a maxim of law, bearing chiefly on evidence, but
also upon the value generally of the thing de-
stroyed, that everything most to his disadvantage
is to be presumed against the destroyer, (spolia-
tor,) contra spoliatorem omnia prcesumuntur. 1
Smith, Lead. Cas. 315.
SPOLIATUS DEBET ANTE OMNIA RESTITUI.
A party despoiled [forcibly deprived of posses-
sion] ought first of all to be restored. 2 Inst. 714;
4 Reeve, Eng. Law, 18.
SPOLIATUS EPISCOPUS ANTE OMNIA DEBET
RESTITUI. A bishop despoiled of his see ought,
above all, to be restored. See 14 L. Q. R. 27.
SPOLIUM. Lat. In the civil and common law. A
thing violently or unlawfully taken from another.
SPONDEO. Lat. In the civil law. I undertake;
I engage. Inst. 3, 16, 1.
SPONDES? SPONDEO. Lat. Do you undertake?
I do undertake. The most common form of verbal
stipulation in the Roman law. Inst. 3, 16, 1.
SPONDET PERITIAM ARTIS. He promises the
skill of his art; he engages to do the work in a
skillful or workmanlike manner. 2 Kent, Comm.
588. Applied to the engagements of workman for
hire. Story, Bailm. § 428.
SPONSALIA, STIPULATIO SPONSALITIA. Lat.
In the civil law. Espousal; bethrothal; a recip-
rocal promise of future marriage.
SPONSIO. Lat. In the civil law. An engage-
ment or undertaking; particularly such as was
made in the form of an answer to a formal inter-
rogatory by the other party. Calvin.
An engagement to pay a certain sum of money
to the successful party in a cause. Calvin.
SPONSIO JUDICIALIS. In Roman law. A judi-
cial wager corresponding in some respects to the
"feigned issue" of modern practice.
SPONSIO LUDICRA. A trifling or ludicrous en-
gagement, such as a court will not sustain an ac-
tion for. 1 Kames, Eq. Introd. 34. An informal
undertaking, or one made without the usual for-
mula of interrogation. Calvin.
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SPONSIONS
SPONSIONS. In international law. Agreements
or engagements made by certain public officers (as
generals or admirals in time of war) in behalf of
their governments, either without authority or in
excess of the authority under which they purport
to be made, and which therefore require an ex-
press or tacit ratification.
SPONSOR. A surety; one who makes a promise
or gives security for another, particularly a god-
father in baptism.
In the civil law. One who intervenes for anoth-
er voluntarily and without being requested.
SPONTANEOUS COMBUSTION. The ignition of
a body by the internal development of heat with-
out the action of an external agent. Eckman
Chemical Co. v. Chicago & N. W. Ry. Co., 107 Neb.
268, 185 N.W. 444, 446.
SPONTANEOUS EXCLAMATION. Within res
gestae rule, a statement or exclamation made im-
mediately after some exciting occasion by a par-
ticipant or spectator and asserting the circum-
stances of that occasion as it is observed by him.
Riley v. State, 50 Ariz. 442, 73 P.2d 96, 101.
SPONTE OBLATA. Lat. A free gift or present
to the crown.
SPONTE VIRUM MULIER FUGIENS ET ADUL-
TERA FACTA, DOTE SUA CAREAT, NISI
SPONSI SPONTE RETRACTA. Co. Litt. 32b.
Let a woman leaving her husband of her own ac-
cord, and committing adultery, lose her dower, un-
less taken back by her husband of his own accord.
SPORTING. HOUSE. A house of ill-fame. John-
son v. People, 202 Ill. 53, 66 N.E. 877, 881. A
house frequented by sportsmen, betting men,
gamblers, and the like, but not necessarily a house
kept for unlawful sports or practices. White v.
Western, Assur. Co. of Toronto, 52 Minn. 352, 54
N.W. 195.
SPORTULA. Lat. In Roman law. A largess,
dole, or present; a pecuniary donation; an official
perquisite; something over and above the ordin-
ary fee allowed by law. Inst. 4, 6, 24.
SPOUSALS. In old English law. Mutual prom-
ises to marry.
SPOT A FREIGHT CAR. To place it at a precise
spot where it is to be loaded or unloaded, such as
a freight house, a team track, or a shipper's ware-
house. Union Pac. It Co. v. Anderson, 167 Or.
687, 120 P.2d 578, 585.
SPOUSE. One's wife or husband. Rosell v. State
Industrial Accident Commission, 164 Or. 173, 95
P.2d 726, 729.
SPOUSE-BREACH. In old English law. Adult-
ery. Cowell.
SPRING. A fountain of water; an issue of water
from the earth, or the basin of water at the place
of its issue. Webster. A natural chasm in which
water has collected, and from which it either is
lost by percolation or rises in a defined channel.
Furner v. Seabury, 135 N.Y. 50, 31 N.E. 1004;
Bloodgood v. Ayers, 108 N.Y. 405, 15 N.E. 433, 2
Am.St.Rep. 443; Proprietors of Mills v. Braintree
Water Supply Co., 149 Mass. 478, 21 N.E. 761, 4
L.R.A. 272; Harrison v. Chaboya, 198 Cal. 473, 245
P. 1087, 1088.
SPRING-BRANCH. In American land law. A
branch of a stream, flowing from a spring. Woot-
ton v. Redd's Ex'r, 12 Grat. (Va.) 196.
SPRINGING USE. See Use.
SPUILZIE. In Scotch law. The taking away or
meddling with movables in another's possession,
without the consent of the owner or authority of
law. Bell.
SPUR TRACK. A short track leading from a line
of railway and connected with it at one end
only, and not an adjunct usual or necessary to the
operation of main line trains and cars. Simons
Brick Co. v. City of Los Angeles, 182 Cal. 230,
187 P. 1066, 1067; Detroit & M. Ry. Co. v. Boyne
City, G. & A. R. Co., D.C.Mich., 286 F. 540, 547;
Cleveland, C. C. & St. L. Ry. Co. v. Commerce
Commission, 315 Ill. 461, 146 N.E. 606, 610; Men-
asha Woodenware Co. v. Railroad Commission
of Wisconsin, 167 Wis. 19, 166 N.W. 435, 438.
SPURIOUS BANK-BILL. A bill which may be a
legitimate impression from the genuine plate, but
it must have the signatures of persons not the of-
ficers of the bank whence it purports to have is-
sued, or else the names of fictitious persons. It
may also be an illegitimate impression from a
genuine plate, or an impression from a counter-
feit plate, but it must have such signatures or
names as indicated. A bill, therefore, may be
both counterfeit and forged, or both counterfeit
and spurious, but it cannot be both forged and
spurious. Kirby v. State, 1 Ohio St. 187.
SPURIUS. Lat. In the civil law. A bastard;
the offspring of promiscuous cohabitation.
SPY. A person sent into an enemy's camp to in-
spect their works, ascertain their strength and
their intentions, watch their movements, and se-
cretly communicate intelligence to the proper of-
ficer. By the laws of war among all civilized na-
tions, a spy is punished with death. Webster.
See Vattel, 3, 179; U. S. ex rel. Wessels v. Mc-
Donald, D.C.N.Y., 1920, 265 F. 754; Ex parte Milli-
gan, 4 Wall. 2, 44, 18 L.Ed. 281 (argument of coun-
sel).
SQUARE. As used to designate a certain portion
of land within the limits of a city or town, this
term may be synonymous with "block," that is,
the smallest subdivision which is bounded on all
sides by principal streets, or it may denote a space
(more or less rectangular) not built upon, and set
apart for public passage, use, recreation, or orna-
mentation, in the nature of a "park" but smaller.
State v. Natal, 42 La.Ann. 612, 7 South. 781; Row-
zee v. Pierce, 75 Miss. 846, 23 South. 307, 40 L.R.A.
402, 65 Am.St.Rep. 625; City of St. Louis v. Pope,
344 Mo. 479, 126 S.W.2d 1201, 1213.
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STALE
Public Square
In its popular import, the phrase refers almost
exclusively to ground occupied by a courthouse
owned by a county, Logansport v. Dunn, 8 Ind.
378; but it may be used as synonymous with park;
Church of Hoboken v. Council of Hoboken, 33 N.
J.L. 13, 97 Am.Dec. 696; Woodward v. City of Des
Moines, 182 Iowa 1102, 165 N.W. 313, 314.
Square Block
Territory bounded by four streets. People ex
rel. Beinert v. Miller, 100 Misc. 318, 165 N.Y.S.
602, 607; Bernfeld v. Freedenberg, 125 Misc. 645,
211 N.Y.S. 692.
SQUATTER. In American 'law. One who settles
on another's land, particularly on public lands,
without legal authority. O'Donnell v. McIntyre,
16 Abb. N. C., N.Y., 84; Parkersburg Industrial
Co. v. Schultz, 43 W.Va. 470, 27 S.E. 255. A person
entering upon lands, not claiming in good faith
the right to do so by virtue of any title of his
own or by virtue of some agreement with another
whom he believes to hold the title. Mayor and
.Council of City of Forsyth v. Hooks, 182 Ga. 78,
184 S.E. 724, 728.
A squatter can never gain prescriptive title to
land regardless of how long he holds possession,
since his possession is never considered as "ad-
verse possession". Conway v. Shuck, 203 Ark.
559, 157 S.W.2d 777, 778.
SQUIRE. A contraction of "esquire."
SS. An abbreviation used in that part of a rec-
ord, pleading, or affidavit, called the "statement of
the venue." Commonly translated or read, "to-
wit," and supposed to be a contraction of "scilicet."
Also in ecclesiastical documents, particularly
records of early councils, "ss" is used as an ab-
breviation for subscripsi. Occasionally, in Law
French, it stands for sans, "without," e. g., "faire
feoffment ss son baron." Bendloe, p. 180.
STAB. A wound inflicted by a thrust with a point-
ed weapon. State v. Cody, 18 Or. 506, 23 P. 891;
Ward v. State, 56 Ga. 410.
STABILIA. A writ called by that name, founded
on a custom in Normandy, that where a man in
power claimed lands in the possession of an in-
ferior, he petitioned the prince that it might be
put into his hands till the right was decided, where-
upon he had this writ. Wharton.
STABILIZE. To keep steady, fixed, as distin-
guished from fluctuating, shifting. McCanless v.
Klein, 182 Tenn. 563, 188 S.W.2d 745, 748.
STABILIZE PRICES. Holding prices steady
against any and all increases. Philadelphia Coke
Co. v. Bowles, Em.App., 139 F.2d 349, 353.
STABIT PLUESUMPTIO DONEC PROBETUR IN
CONTRARIUM. A presumption will stand good
till the contrary is proved. Hob. 297; Broom, Max.
949.
STABLE. House, shed, or building for beasts to
lodge and feed in. Culp v. Firestone Tire & Rub-
ber Co., 303 Pa. %57, 154 A. 479, 480.
STABLE-STAND. In forest law. One of the
four evidences or presumptions whereby a man
was convicted of an intent to steal the king's deer
in the forest. This was when a man was found at
his standing in the forest with a cross-bow or
long-bow bent, ready to shoot at any deer, or else
standing close by a tree with grey-hounds in a
leash, ready to slip. Cowell; Manwood.
STABULARIUS. Lat. In the civil law. A stable-
keeper. Dig. 4, 9, 4, 1.
STACHIA. In old records. A dam or head made
to stop a water-course. Cowell.
STAFF-HERDING. The following of cattle with-
in a forest.
STAGE LINE. A regular line of vehicles for pub-
lic use operating between distant points or be-
tween different cities. Bruce Transfer Co. v. John-
ston, 227 Iowa 50, 287 N.W. 278, 280.
STAGE-RIGHT. A word which it has been at-
tempted to introduce as a substitute for "the right
of representation and performance," but it can
hardly be said to be an accepted term of English
or American law. Sweet.
STAGIARIUS. A resident.. Cowell.
STAGNUM. In old English law. A pool, or pond.
Co. Litt. 5a; Johnson v. Rayner, 6 Gray (Mass.)
110.
STAKE. A deposit made to answer an event, as
on a wager. Mohr v. Miesen, 47 Minn. 228, 49 N.
W. 862; Pompano Horse Club v. State, 93 Fla.
415, 111 So. 801, 813, 52 A.L.R. 51. Something de-
posited by two persons with the third on condition
that it is to be delivered to the one who shall
become entitled to it by the happening of a speci-
fied contingency. Baxter v. Deneen, 98 Md. 181,
57 A. 601, 607, 64 L.R.A. 949, 1 Ann.Cas. 147.
STAKEHOLDER. A person with whom money is
deposited pending the decision of a bet or wager;
(q. v.) . Sweet. Wabash R. Co. v. Flannigan, 95
Mo.App. 477, 75 S.W. 691; Martin v. Francis, 173
Ky. 529, 191 S.W. 259, 262, L.R.A. 1918F, 966, Ann.
Cas.1918E, 289. His function is to receive the
sums wagered and hold them against the deter-
mining event, whether that event be a horse race
or otherwise, and then pay them over to the win-
ner. Also a third person chosen by two or more
persons to keep in deposit property the right or
possession of which is contested between them,
and to be delivered to the one who shall establish
his right to it. State v. Dudley, 127 N.J.L. 127, 21
A.2d 209, 210.
STALE, n. In Saxon law. Larceny. Wharton.
STALE DEMAND, or CLAIM. A demand or
claim that has long remained unasserted, one that
is first asserted after an unexplained delay which
is so long as to render it difficult or impossi-
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STALLAGE
ble for the court to ascertain the truth of the
matters in controversy and do justice between
the parties, or as to create a presumption against
the existence or validity of the claim, or a pre-
sumption that the claim has been abandoned or
satisfied. Luschen v. Stanton, 192 Okl. 454, 137
P.2d 567, 572. It implies a greater lapse of time
than is necessary to "laches." Bell v. Mackey, 191
S.C. 105, 3 S.E.2d 816, 824, 830. The doctrine is
purely an equitable one, and arises only when,
from lapse of time and laches of plaintiff, it would
be inequitable to allow a party to enforce his legal
rights. Wood v. City Board of Plumbing Exam-
iners, 192 Ga. 415, 15 S.E.2d 486, 488; Lamar v.
Rivers, 235 Ala. 130, 178 So. 16, 18.
STALLAGE. The liberty or right of pitching or
erecting stalls in fairs or markets, or the money
paid for the same. 1 Steph. Comm. 664.
STALLARIUS. In Saxon law. The prcefectus
stabuli, now master of the horse. Sometimes one
who has a stall in a fair or market.
STAMP. An impression made by public authority,
in pursuance of law, upon paper or parchment,
upon which certain legal proceedings, conveyanc-
es, or contracts are required to be written, and
for which a tax or duty is exacted.
A small label or strip of paper, bearing a par-
ticular device, printed and sold by the govern-
ment, and required to be attached to mail-matter,
and to some other articles subject to duty or ex-
cise. U. S. v. Skilken, D.C.Ohio, 293 F. 916, 919.
STAMP ACTS. In English law. Acts regulating
the stamps upon deeds, contracts, agreements, pa-
pers in law proceedings, bills and notes, letters,
receipts, and other papers.
STAMP DUTIES. Duties imposed upon and
raised from stamps upon parchment and paper,
and forming a branch of the perpetual revenue of
the kingdom. 1 Bl. Comm. 323.
STANCE. In Scotch law. A resting place; a
field or place adjoining a drove-road, for resting
and refreshing sheep and cattle on their journey.
7 Bell, App. Cas. 53, 57, 58.
STAND. To cease from movement or progress;
to pause, remain stationary or inactive. Jaggers
v. Southeastern Greyhound Lines, D.C.Tenn., 34
F.Supp. 667, 668.
To abide; to submit to; as "to stand a trial."
To remain as a thing is; to remain in force.
Pleadings demurred to and held good are allowed
to stand.
To appear in court.
STANDARD. Stability, general recognition, and
conformity to established practice. Standard Ac-
cident Ins. Co. v. Standard Surety & Casualty Co.,
D.C.N.Y., 53 F.2d 119, 120.
An ensign or flag used in war.
A type, model, or combination of elements ac-
cepted as correct or perfect. Ashwell v. Miller, 54
Ind.App. 381, 103 N.E. 37, 40.
STANDARD ESTABLISHED BY LAW. That of
a reasonable man under like circumstances. Gulf,
C. & S. F. Ry. Co. v. Bell, Tex.Civ.App., 101 S.W.
2d 363, 364.
STANDARD MORTGAGE CLAUSE. In fire pol-
icy. Clause providing that in case of loss policy
shall be payable to mortgagee, and that his inter-
est as payee shall not be invalidated by act of
mortgagor. Rhode Island Ins. Co. v. Wurtman,
265 Ky. 835, 98 S.W.2d 29, 31.
Basic difference In effect between "loss payable clause"
and "standard mortgage clause" is that the former is sub-
ject to such defenses as insurer may have against the mort-
gagor, while the latter is not. Overholt v. Reliance Ins.
Co. of Philadelphia, 319 Pa. 340, 179 A. 554, 556.
STANDARD OF WEIGHT, or MEASURE. A
weight or measure fixed and prescribed by law, to
which all other weights and measures are re-
quired to correspond.
STANDING. One's place in the community in
the estimation of others; his relative position and
social, commercial, or moral relations; his repute,
grade, or rank. Gross v. State, 186 Ind. 581, 117
N.E. 562, 564, 1 A.L.R. 1151.
STANDING ASIDE JURORS. A practice by
which, on the drawing of a jury for a criminal
trial, the prosecuting officer puts aside a juror,
provisionally, until the panel is exhausted, with-
out disclosing his reasons, instead of being requir-
ed to challenge him and show cause. The statute
33 Edw. I. deprived the crown of the power to
challenge jurors without showing cause, and the
practice of standing aside jurors was adopted, in
England, as a method of evading its provisions.
A similar practice is in use in Pennsylvania. See
Warren v. Corn., 37 Pa. , 54; Zell v. Com., 94 Pa.
272; Haines v. Corn., 100 Pa. 322. But in Missouri,
it is said that the words "stand aside" are the
usual formula, used in impaneling a jury, for re-
jecting a juror. State v. Hultz, 106 Mo. 41, 16
S.W. 940.
STANDING BY. Used in law as implying knowl-
edge, under such circumstances as rendered it the
duty of the possessor to communicate it; and it
is such knowledge, and not the mere fact of "stand-
ing by," that lays the foundation of responsibility.
The phrase does not import an actual presence,
"but implies knowledge under such circumstances
as to render it the duty of the possessor to com-
municate it." Anderson v. Hubble, 93 Ind. 573, 47
Am.Rep. 394; Gatling v. Rodman, 6 Ind. 292;
Richardson v. Chickering, 41 N.H. 380, 77 Am.Dec.
769; Morrison v. Morrison, 2 Dana, Ky., 16; Piq-
ua State Bank v. Brannum, 103 Kan. 25, 173 P.
1, 2.
STANDING MUTE. A prisoner, arraigned for
treason or felony, was said to "stand mute," when
he refused to plead, or answered foreign to the
purpose, or, after a plea of not guilty, would not
put himself upon the country.
STANDING IN LOCO PARENTIS. As required
to entitle deceased employee's illegitimate child
to compensation under Workmen's Compensation
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Act for his death, is voluntary, not court directed,
assumption of obligations of parental relation.
Smrekar v. Jones & Laughlin Steel Corporation,
137 Pa.Super. 183, 8 A.2d 461, 464.
STANDING ORDERS. Rules and forms regulat-
ing the procedure of the two houses of parliament,
each having its own. They are of equal force in
every parliament, except so far as they are altered
or suspended from time to time. Cox, Inst. 136;
May, Parl. Pr. 185.
STANDING SEISED TO USES. A covenant to
stand seised to uses is one by which the owner of
an estate covenants to hold the same to the use
of another person, usually a relative, and usually
in consideration of blood or marriage. It is a
species of conveyance depending for its effect on
the statute of uses.
STANDING TO SUE DOCTRINE. Doctrine that
in action in federal constitutional court by citizen
against a government officer, complaining of al-
leged unlawful conduct there is no justiciable con-
troversy unless citizen shows that such conduct
invades or will invade a private substantive legally
protected interest of plaintiff citizen. Associated
Industries of New York State v. Ickes, C.C.A.2, 134
F.2d 694, 702.
STANNARIES. A district which includes all
parts of Devon and Cornwall where some tin
work is situate and in actual operation. The tin
miners of the stannaries have certain peculiar cus-
toms and privileges.
STANN ARY COURTS. Courts of Devonshire and
Cornwall for the administration of justice among
the miners and tinners. These courts were held
before the lord warden and his deputies by virtue
of a privilege granted to the workers of the tin-
mines there, to sue and be sued in their own courts
only, in order that they might not be drawn away
from their business by having to attend law-suits
in distant courts. Brown.
STAPLE.
English Law
A mart or market. A place where the buying
and selling of wool, lead, leather, and other arti-
cles were put under certain terms. 2 Reeve, Eng.
Law, 393.
International Law
The right of staple, as exercised by a people
upon foreign merchants, is defined to be that they
may not allow them to set their merchandises and
wares to sale but in a certain place. This prac-
tice is not in use in the United States. 1 Chit.
Corn. Law, 103.
General
Law of the staple. Law administered in the
court of the mayor of the staple; the law-mer-
chant. 4 Inst. 235. See Staple.
Staple inn. An inn of chancery. See Inns of
Chancery.
Statute staple. The statute of the staple, 27 Ed.
III. stat. 2, confined the sale of all commodities to
be exported to certain towns in England, called
estaple or staple, where foreigners might resort.
It authorized a security for money, commonly call-
ed statute staple, to be taken by traders for the
benefit of commerce; the mayor of the place is en-
titled to take recognizance of a debt in proper
form, which had the effect to convey the lands of
the debtor to the creditor till out of the rents and
profits of them he should be satisfied. 2 Rolle,
Abr. 446; Bac. Abr. Execution (B. 1) ; Co. 4th
Inst. 238. A security for a debt acknowledged to
be due, so called from its being entered into before
the mayor of the staple, that is to say, the grand
mart for the principal commodities or manufac-
tures of the kingdom, formerly held by act of
parliament in certain trading towns. In other
respects it resembled the statute-merchant, (q. v.,)
but like that has now fallen into disuse. 2 Bl.
Comm. 160; 1 Steph. Comm. 287.
STAR—CHAMBER. A court which originally had
jurisdiction in cases where the ordinary course of
justice was so much obstructed by one party,
through writs, combination of maintenance, or ov-
erawing influence that no inferior court would
find its process obeyed. The court consisted of
the privy council, the common-law judges, and (it
seems) all peers of parliament. In the reign of
Henry VIII. and his successors, the jurisdiction
of the court was illegally extended to such a de-
gree (especially in punishing disobedience to the
king's arbitrary proclamations) that it became
odious to the nation, and was abolished. 4 Steph.
Comm. 310; Sweet.
STAR PAGE. The line and word at which the
pages of the first edition of a law book began are
frequently marked by a star in later editions, and
always should be.
STARBOARD. In maritime law. The righthand
side of a vessel when the observer faces forward.
"Starboard tack," the course of vessel when she
has the wind on her starboard bow. Burrows v.
Gower, D.C.Mass., 119 F. 617.
STARE DECISIS. Lat. To abide by, or adhere
to, decided cases.
Policy of courts to stand by precedent and not to
disturb settled point. Neff v. George, 364 Ill. 306,
4 N.E.2d 338, 390, 391. Doctrine that, when court
has once laid down a principle of law as applica-
ble to a certain state of facts, it will adhere to
that principle, and apply it to all future cases,
where facts are substantially the same. Moore v.
City of Albany, 98 N.Y. 396, 410; Regardless of
whether the parties and property are the same.
Horne v. Moody, Tex.Civ.App., 146 S.W.2d 505,
509, 510. Under doctrine a deliberate or solemn
decision of court made after argument on question
of law fairly arising in the case, and necessary to
its determination, is an authority, or binding prec-
edent in the same court, or in other courts of equal
or lower rank in subsequent cases where the
very point is again in controversy. State v. Mel-
lenberger, 163 Or. 233, 95 P.2d 709, 719, 720, 128
A.L.R. 1506. Doctrine is one of policy, grounded
on theory that security and certainty require that
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accepted and established legal principle, under
which rights may accrue, be recognized and fol-
lowed, though later found to be not legally sound,
but whether previous holding of court shall be ad-
hered to, modified, or overruled is within court's
discretion under circumstances of case before it.
Otter Tail Power Co. v. Von Bank, 72 N.D. 497,
8 N.W.2d 599, 607, 145 A.L.R. 1343. Under doc-
trine, when point of law has been settled by de-
cision, it forms precedent which is not afterwards
to be departed from, and, while it should ordinar-
ily be strictly adhered to, there are occasions when
departure is rendered necessary to vindicate plain,
obvious principles of law and remedy continued
injustice.  McGregor v. Provident Trust Co. of
Philadelphia, 119 Fla. 718, 162 So. 323. The doc-
trine is a salutary one, and should not ordinarily
be departed from where decision is of long stand-
ing and rights have been acquired under it, unless
considerations of public policy demand it. Coloni-
al Trust Co. v. Flanagan, 344 Pa. 556, 25 A.2d 728,
729.
The doctrine is limited to actual determinations
in respect to litigated and necessarily decided ques-
tions, and is not applicable to dicta or obiter dicta.
In re Herle's Estate, 165 Misc. 46, 300 N.Y.S. 103.
Federal courts should in all instances follow the law of
the state with respect to the construction of state statutes,
and where that law has been determined by the courts of
last resort, their decisions are "stare decisis" and must
be followed, irrespective of federal courts' opinions con
cerning what the law ought to be, but with respect to the
pronouncement of other state courts, federal courts are
not so bound and may conclude that the decision does not
truly express the state law. Kehaya v. Axton, D.C.N.Y.,
32 F.Supp. 266, 268.
STARE DECISIS ET NON QUIETA MOVERE.
To adhere to precedents, and not to unsettle things
which are established. 87 Pa. 286; Ballard County
v. Kentucky County Debt Commission, 290 Ky.
770, 162 S.W.2d 771, 773. See Stare Decisis.
STARE IN JUDICIO. Lat. To appear before a
tribunal, either as plaintiff or defendant.
STARR, or STARRA. The old term for contract
or obligation among the Jews, being a corruption
from the Hebrew word "shetar," a covenant, by
an ordinance of Richard I., no starr was allowed
to be valid, unless deposited in one of certain
repositories established by law, the most con-
siderable of which was in the king's exchequer at
Westminster; and Blackstone conjectures that the
room in which these chests were kept was thence
called the "starr-chamber." 4 Bl. Comm. 266, 267,
note a.
STAT PRO RATIONE VOLUNTAS. The will
stands in place of a reason. Sears v. Shafer, 1
Barb. (N. Y.) 408, 411; Farmers' Loan & Trust Co.
v. Hunt, 16 Barb. (N.Y.) 514, 525.
STAT PRO RATIONE VOLUNTAS POPULI. The
will of the people stands in place of a reason. Peo-
ple v. Draper, 25 Barb. (N.Y.) 344, 376.
STATE, v. To express the particulars of a thing
in writing or in words; to set down or set forth in
detail; to aver, allege, or declare. People v. Mer-
cado, 59 Cal.App. 69, 209 P. 1035, 1037.
To set down in gross; to mention in general
terms, or by way of reference; to refer. Utica v.
Richardson, 6 Hill (N.Y.) 300.
STATE, n. A people permanently occupying a
fixed territory bound together by common-law hab-
its and custom into one body politic exercising,
through the medium of an organized government,
independent sovereignty and control over all per-
sons and things within its boundaries, capable of
making war and peace and of entering into inter-
national relations with other communities of the
globe. United States v. Kusche, D.C.Cal., 56 F.
Supp. 201, 207, 208. The organization of social
life which exercises sovereign power in behalf of
the people. Delany v. Moraitis, C.C.A.Md., 136 F.
2d 129, 130.
One of the component commonwealths or-States
of the United States of America. The term is
sometimes applied also to governmental agencies
authorized by state, such as municipal corpora-
tions. George v. City of Portland, 114 Or. 418, 235
P. 681, 683, 39 A.L.R. 341.
The people of a state, in their collective capacity,
considered as the party wronged by a criminal
deed; the public; as in the title of a cause, "The
State vs. A. B."
The section of territory occupied by one of the
United States.
The circumstances or condition of a being or
thing at a given time. State v. Inich, 55 Mont. 1,
173 P. 230, 234.
Foreign State
A foreign country or nation. The several United
States are considered "foreign" to each other ex-
cept as regards their relations as common mem-
bers of the Union.
State's Evidence
See Evidence.
State Offices
As used in Primary Election Law, offices to be
filled by electorate of entire state. Hamilton v.
Monroe, Tex.Civ.App., 287 S.W. 304, 305. See "Of-
fice."
State Officers
Those whose duties concern the state at large or
the general public, or who are authorized to exer-
cise their official functions throughout the entire
state, without limitation to any political subdivi-
sion of the state. State ex rel. Consolidated School
Dist. No. 2 v. Ingram, 317 Mo. 1141, 298 S.W. 37,
38; Ramsay v. Van Meter, 300  193, 133 N.E.
193, 195; State v. Jones, 79 Fla. 56, 84 So. 84, 85;
McCullough v. Scott, 182 N.C. 865, 109 S.E. 789,
793. In another sense, officers belonging to or
exercising authority under one of the states of the-
Union, as distinguished from the officers of the
United States. See In re Police Com'rs, 22 R.I. 654,
49 A. 36; State v. Burns, 38 Fla. 378, 21 So. 290;
People v. Nixon, 158 N.Y. 221, 52 N.E. 1117.
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State Paper
A document prepared by, or relating to, the
political department of the government of a state
or nation, and concerning or affecting the admin-
istration of its government or its political or in-
ternational relations. Also, a newspaper, desig-
nated by public authority, as the organ for the
publication of public statutes, resolutions, notices,
and advertisements.
State Revenue
Current income of state from whatever source
derived that is subject to appropriation for pub-
lic uses. State ex rel. McKinley Pub. Co. v. Hack-
mann, 314 Mo. 33, 282 S.W. 1007, 1011.
State Tax
A tax the proceeds of which are to be devoted
to the expenses of the state, as distinguished from
taxation for local or municipal purposes. See
Youngblood v. Sexton, 32 Mich. 413, 20 Am.Rep.
654; State v. Auditor of State, 15 Ohio St. 482;
Society for Establishing Useful Manufactures v.
City of Paterson, 89 N.J.Law, 208, 98 A. 440, 441.
State Trial
A trial for a political offense.
State Trials
A work in thirty-three volumes octavo, contain-
ing all English trials for offenses against the state
and others partaking in some degree of that char-
acter, from the ninth year of Hen. II. to the first
of Geo. IV.
STATE EXPERIENCE FACTOR. The term as
used in Unemployment Compensation Law, means
a factor based on factual experience of all employ-
ers and their employees operating within the state
coming within influence of the act. Broadway v.
Alabama Dry Dock & Shipbuilding Co., 246 Ala.
201, 20 So.2d 41, 49.
STATE OF FACTS. Formerly, when a master in
chancery was directed by the court of chancery
to make an inquiry or investigation into any mat-
ter arising out of a suit, and which could not con-
veniently be brought before the court itself, each
party in the suit carried in before the master a
statement showing how the party bringing it in
represented the matter in question to be; and this
statement was technically termed a "state of
facts," and formed the ground upon which the evi-
dence was received, the evidence being, in fact,
brought by one party or the other, to prove his
own or disprove his opponent's state of facts.
And so now, a state of facts means the statement
made by any one of his version of the facts.
Brown.
STATE OF FACTS AND PROPOSAL. In Eng-
lish lunacy practice, when a person has been found
a lunatic, the next step is to submit to the master
a scheme called a "state of facts and proposal,"
showing what is the position in life, property, and
income of the lunatic, who are his next of kin
and heir at law, who are proposed as his commit-
tees, and what annual sum is proposed to be al-
lowed for his maintenance, etc. From the state
of facts and the evidence adduced in support of it,
the master frames his report. Elmer, Lun. 22;
Pope, Lun. 79; Sweet.
STATE OF THE CASE. A narrative of the facts
upon which the plaintiff relies, substituted for a
more formal declaration, in suits in the inferior
courts. The phrase is used in New Jersey.
STATE PAPER OFFICE. An office established in
London in 1578 for the custody of state papers.
The head of it was the "Clerk of the Papers."
STATED. Determined, fixed, or settled. In re
McKeon's Estate, 227 Iowa 1050, 289 N.W. 915, 919
Stated Meeting
A meeting of a board of directors, board of of-
ficers, etc., held at the time appointed therefor by
law, ordinance, by-law, or other regulation; as
distinguished from "special" meetings, which are
held on call as the occasion may arise, rather
than at a regularly appointed time, and from ad-
journed meetings. See Zulich v. Bowman, 42 Pa.
87; Hanson v. Chicago, B. & Q. R. Co., 32 Wyo. 337,
232 P. 1101, 1104.
Stated Term
A regular or ordinary term or session of a court
for the dispatch of its general business, held at
the time fixed by law or rule; as distinguished
from a special term, held out of the due order or
for the transaction of particular business.
Stated Times
Occurring at regular intervals or given regular-
ly; fixed, regular in operation or occurrence, not
occasional or fluctuating. Zangerle v. State, 115
Ohio St. 168, 152 N.E. 658, 659.
STATEMENT. In a general sense, an allegation;
a declaration of matters of fact. The term has
come to be used of a variety of formal narratives
of facts, required by law in various jurisdictions
as the foundation of judicial or official proceedings
and in a limited sense is a formal, exact, detailed
presentation. Southern Surety Co. v. Schmidt,
117 Ohio St. 28, 158 N.E. 1, 3. For "False and
Misleading Statement," and "Foreign Statement,"
see those titles.
STATEMENT OF AFFAIRS. In English bank-
ruptcy practice, a bankrupt or debtor who has pre-
sented a petition for liquidation or composition
must produce at the first meeting of creditors a
statement of his affairs giving a list of his credi-
tors, secured and unsecured, with the value of the
securities, a list of bills discounted, and a state-
ment of his property. Sweet.
STATEMENT OF CLAIM. A written or printed
statement by the plaintiff in an action in the Eng-
lish high court, showing the facts on which he
relies to support his claim against the defendant,
and the relief which he claims. It is delivered
to the defendant or his solicitor. The delivery of
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the statement of claim is usually the next step
after appearance, and is the commencement of the
pleadings. Sweet.
STATEMENT OF CONFESSION. Oftentimes re-
ferred to as a "power of attorney" is written au-
thority of debtor and his direction to enter judg-
ment against debtor as stated therein. Blott v.
Blott, 227 Iowa 1108, 290 N.W. 74, 76.
STATEMENT OF DEFENSE. In the practice of
the English high court, where the defendant in
an action does not demur to the whole of the plain-
tiff's claim, he delivers a pleading called a "state-
ment of defense." The statement of defense deals
with the allegations contained in the statement of
claim, (or the indorsement on the writ, if there
is no statement of claim,) admitting or denying
them, and, if necessary, stating fresh facts in ex-
planation or avoidance of those alleged by the
plaintiff. Sweet.
STATEMENT or PARTICULARS. In English
practice, when the plaintiff claims a debt or li-
quidated demand, but has not indorsed the writ
specially, (i. e., indorsed on it the particulars of
his claim under Order iii. r. 6,) and the defendant
fails to appear, the plaintiff may file a statement
of the particulars of his claim, and after eight
days enter judgment for the amount, as if the
writ had been specially indorsed. Court Rules,
xiii. 5; Sweet.
STATE'S EVIDENCE. A popular term for testi-
mony given by an accomplice or joint participant
in the commission of a crime tending to crimin-
ate or convict the others, and given under an ac-
tual or implied promise of immunity for himself.
STATESMAN. A freeholder and farmer in Cum-
berland. Wharton.
STATIM. Lat. Forthwith; immediately. In old
English law, this term meant either "at once," or
"within a legal time," i. e., such time as permitted
the legal and regular performance of the act in
question.
STATING AN ACCOUNT. Exhibiting, or listing
in their order, the items which make up an ac-
count.
STATING PART OF A BILL. That part of a bill
in chancery in which the plaintiff states the facts
of his case; it is distinguished from the charging
part of the bill and from the prayer.
STATION. In the civil law. A place where ships
may ride in safety. Dig. 50, 16, 59.
A place where military duty is performed or
stores are kept or something connected with war
is done. McGowan v. United States, 48 Ct.C1. 95.
A place at which both freight and passengers
are received for transportation or delivered after
transportation. Daniel v. Doyle, 135 Ark. 547, 204
S.W. 210, 211; Railroad Commission of Texas v.
Pecos & N. T. Ry. Co., Tex.Civ.App., 212 S.W. 535,
537.
STATIONER'S COMPANY. A body formed in
1557 in London of 97 London stationers and their
successors, to whom was . entrusted, in the first
instance, and, under Orders in Council, the cen-
sorship of the press.
STATIONERS' HALL. In English law. The hall
of the stationers' company, at which every per-
son claiming copyright in a book must register
his title, in order to be able to bring actions against
persons infringing it. 2 Steph.Comm. 37-39.
STATIONERY OFFICE. In Englsh law. A gov-
ernment office established as a department of the
treasury, for the purpose of supplying govern-
ment offices with stationery and books, and of
printing and publishing government papers.
STATIST. A statesman; a politician; one skill-
ed in government,
STATISTICS. That part of political science which
is concerned in collecting and arranging facts il-
lustrative of the condition and resources of a
state. The subject is sometimes divided into (1)
historical statistics, or facts which illustrate the
former condition of a state; (2) statistics of pop-
ulation; (3) of revenue; (4) of trade, commerce,
and navigation; (5) of the moral, social, and phys-
ical condition of the people. Wharton.
STATU LIBER. Lat. In Roman law. One who
is made free by will under a condition; one who
has his liberty fixed and appointed at a certain
time or on a certain condition. Dig. 40, 7.
STATU LIBERI. Lat. In Louisiana. Slaves for
a time, who had acquired the right of being free
at a time to come, or on a condition which was
not fulfilled, or in a certain event which had not
happened, but who in the meantime remained in
a state of slavery. Civ.Code La.1838, art. 37.
STATUS. Standing, state or condition. Reyn-
olds v. Pennsylvania Oil Co., 150 Cal. 629, 89 P.
610, 612. The legal relation of individual to rest
of the community. Duryea v. Duryea, 46 Idaho
512, 269 P. 987, 988. The rights, duties, capacities
and incapacities which determine a person to a
given class. Campb. Austin 137. A legal per-
sonal relationship, not temporary in its nature nor
terminable at the mere will of the parties, with
which third persons and the state are concerned.
Holzer v. Deutsche Reichsbahn Gesellschaft, 159
Misc. 830, 290 N.Y.S. 181, 191. While term implies
relation it is not a mere relation. De La Montan-
ya v. De La Montanya, 112 Cal. 101, 115, 44 P. 345,
348, 32 L.R.A. 82, 53 Am.St.Rep. 165.
It also means estate, because it signifies the
condition or circumstances in which one stands
with regard to his property. In the Year Books,
it was used in this sense; 2 Poll. & Maitl. Hist,
E. L. 11.
STATUS DE MANERIO. The assembly of the
tenants in the court of the lord of a manor, in
order to do their customary suit.
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STATUS OF IRREMOVABILITY. In English
law. The right acquired by a pauper, after one
year's residence in any parish, not to be removed
therefrom.
STATUS QUO. The existing state of things at
any given date. Status quo ante bellum, the state
of things before the war.
Last actual, peaceable, noncontested condition which
preceded pending controversy. State ex rel. Pay Less
Drug Stores v. Sutton, 2 Wash.2d 523, 98 P.2d 680, 683, 684;
State on Inf. of McKittrick v. American Ins. Co., 351 Mo.
392, 173 S.W.2d 51, 52.
STATUTA PRO PUBLIC() COMMODO LATE IN-
TERPRETANTUR. Jenk.Cent. 21.  Statutes
made for the public good ought to be liberally
construed.
STATUTA SUO CLUDUNTUR TERRITORIO,
NEC ULTRA TERRITORIUM DISPONUNT.
Statutes are confined to their own territory, and
have no extraterritorial effect. Woodworth v.
Spring, 4 Allen (Mass.) 324.
STATUTABLE, or STATUTORY. That which is
introduced or governed by statute law, as opposed
to the common law or equity. Thus, a court is
said to have statutory jurisdiction when jurisdic-
tion is given to it in certain matters by act of
the legislature.
STATUTE, n. An act of the legislature declaring,
commanding, or prohibiting something; a par-
ticular law enacted and established by the will of
the legislative department of government; the
written will of the legislature, solemnly expressed
according to the forms necessary to constitute it
the law of the state. Federal Trust Co. v. East
Hartford Fire Dist., C.C.A.Conn., 283 F. 95, 98; In
re Van TasselFs Will, 119 Misc. 478, 196 N.Y.S.
491, 494; Washington v. Dowling, 92 Fla. 601, 109
So. 588, 591.
This word is used to designate the written law
in contradistinction to the unwritten law. Foster
v. Brown, 199 Ga. 444, 34 S.E.2d 530, 535. See
Common Law.
Foreign and Civil Law
Any particular municipal law or usage, though
resting for its authority on judicial decisions, or
the practice of nations. 2 Kent, Comm. 456. The
whole municipal law of a particular state, from
whatever source arising. Story, Confl. Laws, §
12.
"Statute" also sometimes means a kind of bond
or obligation of record, being an abbreviation for
"statute merchant" or "statute staple." See in-
fra. For mandatory and directory statutes see
"Mandatory" and "Directory."
General
Affirmative statute. See Affirmative.
Criminal statute. An act of the Legislature as
an organized body relating to crime or its punish-
ment. Washington v. Dowling, 92 Fla. 601, 109
So. 588, 591,
Declaratory statute. See Declaratory.
Enabling statute. See that title.
Expository statute. See that title.
General statute. A statute relating to the whole
community, or concerning all persons generally,
as distinguished from a private or special statute.
1 Bl.Comm. 85, 86; 4 Coke 75a.
Local statute. See Local Law.
Negative statute. A statute expressed in nega-
tive terms; a statute which prohibits a thing
from being done, or declares what shall not be
done.
Penal statute. See Penal.
Perpetual statute. One which is to remain in
force without limitation as to time; one which
contains no provision for its repeal, abrogation, or
expiration at any future time.
Personal statutes. In foreign and modern civil
law. Those statutes which have principally for
their object the person, and treat of property only
incidentally. Story, Confl. Laws, § 13. A person-
al statute, in this sense of the term, is a law, or-
dinance, regulation, or custom, the disposition
of which affects the person and clothes him with
a capacity or incapacity, which he does not change
with every change of abode, but which, upon prin-
ciples of justice and policy, he is assumed to car-
ry with him wherever he goes. 2 Kent, Comm.
456. The term is also applied to statutes which,
instead of 'being general, are confined in their
operation to one , person or group of persons.
Bank of Columbia v. Walker, 14 Lea (Tenn.) 308;
Saul v. Creditors, 5 Mart. N.S. (La.) 591, 16 Am.
Dec. 212.
Private statute. A statute which operates only
upon particular persons, and private concerns.
1 Bl.Comm. 86. An act which relates to certain
individuals, or to particular classes of men.
Dwar.St. 629; State v. Chambers, 93 N.C. 600.
Public statute. A statute enacting a universal
rule which regards the whole community, 'as dis-
tinguished from one which concerns only particu-
lar individuals and affects only their private
rights. See Code Civ.Proc.Cal. § 1898.
Punitive statute. See that title.
Real statutes. In the civil law. Statutes which
have principally for their object property, and
which do not speak of persons, except in relation
to property. Story, Confl. Laws, § 13; Saul v.
His Creditors, 5 Mart. N.S. (La.) 582, 16 Am.Dec.
212.
Reference statutes. See that title.
Remedial statute. See Remedial.
Revised statutes. A body of statutes which
have been revised, collected, arranged in order,
and re-enacted as a whole; this is the legal title
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STATUTE
of the collections of compiled laws of several of
the states and also of the United States.
Special statute. One which operates only upon
particular persons and private concerns. 1 Bl.
Comm. 86. Distinguished from a general or public
statute.
Statute fair. In English law. A fair at which
laborers of both sexes stood and offered them-
selves for hire; sometimes called also "Mop."
Statute-merchant. In English law. A security
for a debt acknowledged to be due, entered into be-
fore the chief magistrate of some trading town,
pursuant to the statute 13 Edw. I. De Mercatori-
bus, by which not only the body of the debtor
might be imprisoned, and his goods seized in sat-
isfaction of the debt, but also his lands might
be delivered to the creditor till out of the rents
and profits of them the debt be satisfied. 2 Bl.
Comm. 160. Now fallen into disuse. 1 Steph.
Comm. 287. See Yates v. People, 6 Johns. (N.Y.)
404.
Statute of accumulations. In English law. The
statute 39 & 40 Geo. III. c. 98, forbidding the ac-
cumulation, beyond a certain period, of property
settled by deed or will.
Statute of allegiance de facto. An act of 11
Hen. VII. c. 1, requiring subjects to give their al-
legiance to the actual king for the time being, and
protecting them in so doing.
Statute of distributions. See Distribution.
Statute of Elizabeth. In English law. The
statute 13 Eliz. c. 5, against conveyances made in
fraud of creditors.
Statute of frauds. See Frauds, Statute of.
Statute of Gloucester. In English law. The
statute 6 Edw. I. c. 1, A.D. 1278. It takes its name
from the place of its enactment, and was the
first statute giving costs in actions. 3 Bl.Comm.
399.
Statute of laborers. See Laborer.
Statute of limitations. See Limitation.
Statute of uses. See Use.
Statute of wills. In English law. The statute
32 Hen. VIII. c. 1, which enacted that all persons
being seised in fee-simple (except femes covert,
infants, idiots, and persons of non-sane memory
might, by will and testament in writing, devise to
any other person, except to bodies corporate, two-
thirds of their lands, tenements, and heredita-
ments, held in chivalry, and the whole of those
held in socage. 2 Bl.Comm. 375.
Statute roll. A roll upon which an English
statute, after receiving the royal assent, was for-
merly entered.
Statute staple. See Staple.
Statutes at large. Statutes printed in full and
in the order of their enactment, in a collected
form, as distinguished from any digest, revision,
abridgement, or compilation of them. Thus the
volumes of "United States Statutes at Large,"
contain all the acts of congress in their order.
The name is also given to an authentic collec-
tion of the various statutes which have been pass-
ed by the British parliament from very early
times to the present day.
Statutes of amendments and jeofailes. Stat-
utes whereby a pleader who perceives any slip in
the form of his proceedings, and acknowledges
the error (jeofaile), is permitted to amend. State
ex rel. Smith v. Trimble, 315 Mo. 166, 285 S.W. 729,
731.
Temporary statute. One which is limited in its
duration at the time of its enactment. It contin-
ues in force until the time of its limitation has ex-
pired, unless sooner repealed. A statute which by
reason of its nature has only a single and tempo-
rary operation—e. g. an appropriation bill—is
also called a temporary statute.
Validating statute. See that title.
STATUTE, v. In old Scotch law. To ordain, es-
tablish, or decree.
STATUTES IN DEROGATION OF COMMON
LAW MUST BE STRICTLY CONSTRUED. Cool-
ey, Const. Lim. 75, note; Arthurs, Appeal of, 1
Grant Cas. (Pa.) 57.
STATUTI. Lat. In Roman law. Licensed or reg-
istered advocates; members of the college of ad-
vocates. The number of these was limited, and
they enjoyed special privileges from the time of
Constantine to that of Justinian.
STATUTORY. Relating to a statute; created or
defined by a statute; required by a statute; con-
forming to a statute.
STATUTORY BOND. One that either literally or
substantially meets requirements of statute.
Southern Surety Co. v. United States Cast Iron
Pipe & Foundry Co., C.C.A.Mo., 13 F.2d 833, 835.
STATUTORY CRIME. See Crime.
STATUTORY DEDICATION. See Dedication.
STATUTORY EXPOSITION. When the language
of a statute is ambiguous, and any subsequent
enactment involves a particular interpretation of
the former act, it is said to contain a statutory
exposition of the former act. Wharton.
STATUTORY FORECLOSURE. See Foreclosure.
STATUTORY OBLIGATION. An obligation--
whether to pay money, perform certain acts, or
discharge certain duties—which is created by or
arises out of a statute, as distinguished from one
founded upon acts between parties or jural re-
lationships.
STATUTORY RELEASE. A conveyance which
superseded the old compound assurance by lease
and release. It was created by St. 4 & 5, Vict. c.
21, which abolished the lease for a year.
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STEAL
STATUTORY STAPLE. An ancient writ that lay
to take the body of a person and seize the lands
and goods of one who had forfeited a bond called
statute staple. Reg. Orig. 151. See "Staple."
STATUTUM. Lat. Established; determined.
In the Civil law. A term applied to judicial
action. Dig. 50, 16, 46, pr.
In old English law. A statute; an act of par-
liament.
STATUTUM AFFIRMATIVUM NON DEROGAT
COMMUNI LEGI. Jenk. Cent. 24. An affirmative
statute does not derogate from the common law.
STATUTUM DE MERCATORIBUS. The statute
of Acton Burnell, (q. v.).
STATUTUM EX GRATIA REGIS DICITUR,
QUANDO REX DIGNATUR CEDERE DE JURE
SUO REGIO, PRO COMMODO ET QUIETE PO-
PULI SUI. 2 Inst. 378. A statute is said to be
by the grace of the king, when the king deigns to
yield some portion of his royal rights for the
good and quiet of his people.
STATUTUM GENERALITER EST INTELLIGEN-
DUM QUANDO VERBA STATUTI SUNT SPE-
CIALIA, RATIO AUTEM GENERALIS. When
the words of a statute are special, .but the reason
of it general, the statute is to be understood gen-
erally. 10 Coke, 101.
STATUTUM HIBERNIZE DE COHAEREDIBUS.
The statute 14 Hen. III. The third public act in
the statute-book. It has been pronounced not to
be a statute. In the form of it, it appears to be
an instruction given by the king to his justices
in Ireland, directing them how to proceed in a
certain point where they entertained a doubt. It
seems the justices itinerant in that country had
a doubt, when land descended to sisters, whether
the younger sisters ought to hold of the eldest,
and do homage to her for their several portions, or
of the chief lord, and do homage to him; and
certain knights had been sent over to know what
the practice was in England in such a case. 1
Reeve, Eng. Law, 259.
STATUTUM SESSIONUM. In old English law.
The statute session; a meeting in every hundred
of constables and householders, by custom, for
the ordering of servants, and debating of differ-
ences between masters and servants, rating of
wages, etc. 5 Eliz. c. 4.
STATUTUM SPECIALE STATUTO SPECIAL!
NON DEROGAT. Jenk. Cent. 199. One special
statute does not take from another special stat-
ute.
STATUTUM WALLL ZE. The statute of Wales.
The title of a statute passed in the twelfth year
of Edw. L, being a sort of constitution for the prin-
cipality of Wales, which was thereby, in a great
measure, put on the footing of England with re-
spect to its laws and the administration of justice.
2 Reeve, Eng. Law, 93, 94.
STAURUM. In old records. A store, or stock of
cattle. A term of common occurrence in the
accounts of monastic establishments. Spelman;
Cowell.
STAY, v. To stop, arrest, or forbear. State Foun-
ders v. Oliver, 165 Md. 360, 169 A. 59, 61.
To "stay" an order or decree means to hold it in abey-
ance, or refrain from enforcing it. State v. Draney, 57
Utah 14, 176 P. 767, 769.
STAY, n. A stopping; the act of arresting a ju-
dicial proceeding by the order of a court. In re
Schwarz, D.C.N.Y., 14 F. 788.
Also that which holds, restrains, or supports.
Armenti v. Brooklyn Union Gas Co., 142 N.Y.S.
420, 425, 157 App.Div. 276; Rookstool v. Cudahy
Packing Co., 100 Neb. 118, 158 N.W. 440, 444.
Stay laws. Acts of the legislature prescribing
a stay of execution in certain cases, or a stay of
foreclosure of mortgages, or closing the courts for
a limited period, or providing that suits shall not
be instituted until a certain time after the cause
of action arose, or otherwise suspending legal
remedies; designed for the relief of debtors, in
times of general distress or financial trouble.
Stay of execution. The stopping or arresting
of execution on a judgment, that is, of the judg-
ment-creditor's right to issue execution, for a
limited period. This is given by statute in many
jurisdictions, as a privilege to the debtor, usually
on his furnishing bail for the debt, costs, and in-
terest. Or it may take place by agreement of the
parties. See National Docks, etc., Co. v. Pennsyl-
vania R. Co., 54 N.J.Eq. 167, 33 A. 936; State ex
rel. Gray v. Hennings, 194 Mo.App. 545, 185 S.W.
1153, 1154.
Stay of proceedings. The temporary suspension
of the regular order of proceedings in a cause,
by direction or order of the court, usually to await
the action of one of the parties in regard to some
omitted step or some act which the court has re-
quired him to perform as incidental to the suit; as
where a nonresident plaintiff has been ruled to
give, security for costs. See Wallace v. Wallace, 13
Wis. 226; Lewton v. Hower, 18 Fla. 876; Rossiter
v. "Etna L. Ins. Co., 96 Wis. 466, 71 N.W. 898.
"Stay of proceedings" and "abatement", though similar
are not identical; abatement being a matter of right,
while application for stay of proceedings is addressed to
discretion of the court. Evans v. Evans, Tex.Civ.App., 186
S.W.2d 277, 279.
STEADY COURSE. A ship is on a "steady
course," not only when her heading does not
change, but whenever her future positions are
certainly ascertainable from her present position
and movements. Commonwealth & Dominion
Line v. U. S., C.C.A.N.Y., 20 F.2d 729, 731.
STEAL. This term is commonly used in indict-
ments for larceny, ("take, steal, and carry away,")
and denotes the commission of theft, that is, the
felonious taking and carrying away of the per-
sonal property of another, and without right and
without leave or consent of owner, People v.
Surace, 295 III. 604, 129 N.E. 504, 506; State v.
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STEALING
Banoch, 193 Iowa 851, 186 N.W. 436; Alvarado
v. State, 38 Okl.Cr. 360, 261 P. 983, 985; and with
intent to keep or make use wrongfully. State
v. Hillis, 145 Kan. 456, 65 P.2d 251, 252; or it may
denote the criminal taking of personal property
either by larceny, embezzlement, or false pre-
tenses. Commonwealth v. Farmer, 218 Mass.
507, 106 N.E. 150, 151. But, in popular usage
"stealing" may include the unlawful appropria-
tion of things which are not technically the sub-
ject of larceny, e. g., immovables. Barnhart v.
State, 154 Ind. 177, 56 N.E. 212; Buxton v. In-
ternational Indemnity Co., 47 Cal.App. 583, 191
P. 84, 86; State v. Blake, 95 W.Va. 467, 121 S.E.
488, 489.
STEALING CHILDREN. See Kidnapping.
STEALTH. Theft is so called by some ancient
writers. "Stealth is the wrongful taking of goods
without pretense of title." Finch, Law, b. 3, c.
17.
STEAM FITTER. A workman who installs steam
pipes, their fittings, etc. Warburton-Beacham Sup-
ply Co. v. City of Jackson, 151 Miss. 503, 118 So.
606, 608.
STEAMSHIP. A vessel, the principal motive pow-
er of which is steam and not sails. L.R. 7 Q.B.
569. See Western Ins. Co. v. Cropper, 32 Pa. 352,
75 Am.Dec. 561.
STEELBOW GOODS. In Scotch law. Corn, cat-
tle, straw, and implements of husbandry deliv-
ered by a landlord to his tenant, by which the
tenant is enabled to stock and labor the farm;
in consideration of which he becomes bound to
return articles equal in quantity and quality, at
the expiry of the lease. Bell.
STEERER. One who gains the confidence of the
person intended to be fleeced and who may be said
to steer or lead the victim to the place where the
latter is to be robbed or swindled. Barron v.
Board of Dental Examiners of California, 109 Cal.
App. 382, 293 P. 144, 145.
STELLIONATAIRE. Fr. In French law. A
party who fraudulently mortgages property to
which he has no title.
STELLIONATE. In civil law. A name given gen-
erally to all species of frauds committed in mak-
ing contracts but particularly to the crime of alien-
ing the same subject to different persons. 2
Kames, Eq. 40.
STELLIONATUS. Lat. In the civil law. A gen-
eral name for any kind of fraud not falling under
any specific class. But the term is chiefly applied
to fraud practiced in the sale or pledging of prop-
erty; as, selling the same property to two dif-
ferent persons, selling another's property as one's
own, placing a second mortgage on property
without disclosing the existence of the first, etc.
STENOGRAPHER. One who is skilled in the art
of short-hand writing; one whose business is to
write in short-hand. See Rynerson v. Allison, 30
S.C. 534, 9 S.E. 656; In re Appropriations for Dep-
uty State Officers, 25 Neb. 662, 41 N.W. 643; Chase
v. Vandergrift, 88 Pa. 217.
STENOGRAPHY. Art of writing in shorthand.
Harris v. Brockhurst, 119 N.J.L. 187, 194 A. 876,
877.
STEP. When used as prefix in conjunction with
a degree of kinship, is repugnant to blood rela-
tionship, and is indicative of a relationship by af-
finity. Grossenbacher v. State, 49 Ohio App. 451,
197 N.E. 382, 383.
STEP-CHILD. The child of one of the spouses by
a former marriage. Dangerfield v. Indemnity Ins.
Co., La.App., 19 So.2d 598, 600.
STEP-DOWN TRANSFORMER. An induction
coil or a transformer so constructed that there is
a higher voltage in the primary current than in
the secondary current. General Electric Co. v.
Butler Light, Heat & Motor Co., D.C.Pa., 205 F.
42, 44.
STEP-FATHER. The husband of one's mother
by virtue of a marriage subsequent to that of
which the person spoken of is the offspring. Lar-
sen v. Harris Structural Steel Co., 230 App.Div.
280, 243 N.Y.S. 654, 655. The husband of one's
mother by virtue of a marriage subsequent to that
of which person spoken of is the offspring. Sharp
v. Borough of Vineland, 14 N.J.Misc. 256, 183 A.
911, 912.
STEP-MOTHER. The wife of one's father by vir-
tue of a marriage subsequent to that of which
the person spoken of is the offspring. Sharp v.
Borough of Vineland, 14 N.J.Misc. 256, 183 A. 911,
912.
STEP-SON. The son of one's wife by a former
husband, or of one's husband by a former wife.
STEP-UP TRANSFORMER. An induction coil
or a transformer so constructed that there is a
higher voltage in the secondary current than in
the primary current. General Electric Co. v. But-
ler Light, Heat & Motor Co., D.C.Pa., 205 F. 42, 44.
STERBRECHE, or STREBRICH. The breaking,
obstructing, or straitenin g  of a way. Termes de la
Ley.
STRRE. A French measure of solidity, used in
measuring wood. It is a cubic meter.
STERILITY. Barrenness; unfruitfulness; inca-
pacity to germinate or reproduce.
STERLING. In English law. Current or stand-
ard coin, especially silver coin; a standard of
coinage.
STET BILLA. If the plaintiff in a plaint in the
mayor's court of London has attached property be-
longing to the defendant and obtained execution
against the garnishee, the defendant, if he wishes
to contest the plaintiff's claim, and obtain restora-
tion of his property, must issue a scire facias
disprobandum debitum; if the only question
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STIPEND
to be tried is the plaintiff's debt, the plaintiff in
appearing to the scire facias prays stet billa "that
his bill original," i. e., his original plaint, "may
stand, and that the defendant may plead there-
to." The action then proceeds in the usual way as
if the proceedings in attachment (which are
founded on a fictitious default of the defendant
in appearing to the plaint) had not taken place.
Brand, F. Attachm. 115; Sweet.
STET PROCESSUS. An entry on the roll in the
nature of a judgment of a direction that all fur-
ther proceedings shall be stayed, (i. e., that the
process may stand,) and it is one of the ways
by which a suit may be terminated by an act of
the party, as distinguished from a termination of
it by judgment, which is the act of the court. It
was used by the plaintiff when he wished to sus-
pend the action without suffering a nonsuit.
Brown.
STEVEDORE. A person employed in loading and
unloading vessels. The Senator, D.C.Ohio, 21 F.
191; Rankin v. Merchants' & M. Transp. Co., 73
Ga. 232, 54 Am.Rep. 874; Zampiere v. William
Spencer & Son Corporation, 194 App.Div. 576, 185
N.Y.S. 639, 640.
STEWARD. A man appointed in the place or
stead of another, also a principal officer within
his jurisdiction. Brown.
Land Steward
See that title.
Steward of a Manor
An important officer who has the general man-
agement of all forensic matters connected with
the manor of which he is steward. He stands in
much the same relation to the lord of the manor
as an under-sheriff does to the sheriff. Cowell.
Steward of all England
In old English law. An officer who was in-
vested with various powers; among others, to
preside on the trial of peers.
Steward of Scotland
An officer of the highest dignity and trust. He
administered the crown revenues, superintended
the affairs of the household, and possessed the
privilege of holding the first place in the army,
next to the king, in the day of battle. From this
office the royal house of Stuart took its name.
But the office was sunk on their advancement to
the throne, and has never since been revived.
Bell.
STEWARTRY. In Scotch law, equivalent to the
English "county." See Brown.
STEWS. Certain brothels anciently permitted
in England, suppressed by Henry VIII. Also,
breeding places for tame pheasants.
STICK. In the old books. To stop; to hesitate;
to accede with reluctance. "The court stuck a
little at this exception." 2 Show. 491..
Black's Law Dictionary Revised 4th Ed.-100
STICK UP. Rob at the point of a gun. White
v. State, 219 Ind. 290, 37 N.E.2d 937, 940.
STICKER. A gummed slip or strip. Crosby
v. Libby, 114 Me. 35, 95 A. 329, 330.
STICKLER. (1) An inferior officer who cuts
wood within the royal parks of Clarendon. Cow-
ell. (2) An arbitrator. (3) An obstinate contend-
er about anything.
STIFLING A PROSECUTION. Agreeing, in con-
sideration of receiving a pecuniary or other ad-
vantage, to abstain from prosecuting a person for
an offense not giving rise to a civil remedy;
e. g., perjury. Sweet.
STILL. Any device used for separating alcoholic
spirits from fermented substances. Moore v.
State, 154 Ark. 13, 240 S.W. 1083, 1084; Davis v.
State, 102 Tex.Cr.R. 546, 278 S.W. 848, 849. The
word is sometimes applied to the whole apparatus
for evaporation and condensation used in the
manufacture of ardent spirits, but in the descrip-
tion of the parts of the apparatus it is applied
merely to the vessel or retort used for boiling and
evaporation of the liquid. Hodgkiss v. State, 156
Ark. 340, 246 S.W. 506, 507.
STILL COKE. Coke formed by the distillation of
petroleum. Rodman Chemical Co. v. Steel Treat-
ing Equipment Co., C.C.A.Mich., 288 F. 471, 473.
STILL WORM. The tube or coil used for conden-
sation of the vapor which is passed through it
from boiling mash for the purpose of being dis-
tilled into whisky. Rosslot v. State, 162 Ark. 340,
258 S.W. 348.
STILLBORN CHILD. A child born dead or in
such an early stage of pregnancy as to be inca-
pable of living, though not actually dead at the
time of birth. Children born within the first six
months after conception are considered by the civ-
il law as incapable of living, and therefore, though
they are apparently born alive, if they do not in
fact survive so long as to rebut this presumption
of law, they cannot inherit, so as to transmit the
property to others. Marsellis v. Thalhimer, 2
Paige (N.Y.) 41, 21 Am.Dec. 66.
STILLICIDIUM. Lat. In the civil law. The drip
of water from the eaves of a house. The servitude
stillicidii consists in the right to have the water
drip from one's eaves upon the house or ground
of another. The term "fiumen" designated the
rain-water collected from the roof, and carried
off by the gutters, and there is a similar ease-
ment of having it discharged upon the adjoining
estate. Mackeld. Rom. Law, § 317, par. 4.
STINT. In English law. Limit; a limited num-
ber. Used as descriptive of a species of common.
See Common sans Nombre.
STIPEND. A salary; settled pay. Mangam v.
Brooklyn, 98 N.Y. 597, 50 Am.Rep. 705.
In English and Scotch law. A provision made
for the support of the clergy.
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STIPENDIARY
STIPENDIARY ESTATES. Estates granted in
return for services, generally of a military kind.
1 Steph.Comm. 174.
STIPENDIARY MAGISTRATES. In English law.
Paid magistrates; appointed in London and some
other cities and boroughs, and having in general
the powers and jurisdiction of justices of the
peace.
STIPENDIUM. Lat. In the civil law. The pay
of a soldier; wages; stipend. Calvin.
STEMS. Lat. In old English law. Stock; a
stock; a source of descent or title. Communis
stipes, the common stock. Fleta, lib. 6, c. 2.
STIPITAL. Relating to stirpes, roots, or stocks.
"Stipital distribution" of property is distribution
Ter stirpes; that is, by right of representation.
STIPULATED DAMAGE. Liquidated damage,
(q. v.).
STIPULATE. Arrange or settle definitely, as an
agreement or covenant. Mennen Co. v. Krauss
Co., D.C.La., 37 F.Supp. 161, 163.
STIPULATIO. Lat. In the Roman law, stipula-
tio was the verbal contract, (verbis obligatio,)
and was the most solemn and formal of all the
contracts in that system of jurisprudence. It was
entered into by question and corresponding an-
swer thereto, by the parties, both being present
at the same time, and usually by such words
as "spondes? spondeo," "promittis? promitto,"
and the like. Brown.
STIPULATIO AQUILIANA. A particular applica-
tion of the stipulatio, which was used to collect
together into one verbal contract all the liabili-
ties of every kind and quality of the debtor, with
a view to their being released or discharged by an
acceptilatio, that mode of discharge being ap-
plicable only to the verbal contract. Brcwn.
STIPULATION. A material article in an agree-
ment.
Practice
The name given to any agreement made by the
attorneys engaged on opposite sides of a cause,
(especially if in writing,) regulating any matter
incidental to the proceedings or trial, which falls
within their jurisdiction. Such, for instance, are
agreements to extend the time for pleading, to
take depositions, to waive objections, to admit
certain facts, to continue the cause. See Lewis
v. Orpheus, 15 F.Cas. 492; Southern Colonization
Co. v. Howard Cole & Co., 185 Wis. 469, 201 N.W.
817, 819.
Practice
An agreement between counsel respecting busi-
ness before the court. It is not binding unless as-
sented to by the parties or their representatives,
and most stipulations are required to be in writ-
ing. Holland Banking Co. v. Continental Nat.
Bank of Jackson County, Kansas City, Mo., D.C.
Mo., 9 F.Supp. 988, 989.
"Stipulations" are of two types: First, those relating to
merely precedural matters; and, second, those which have
all essential characteristics of mutual contract. Paine v.
Chicago & N. W. Ry. Co., 217 Wis. 601, 258 N.W. 846.
Admiralty Practice
A recognizance of certain persons (called in the
old law "fide jussors") in the nature of bail for
the appearance of a defendant. 3 Bl.Comm. 108.
STIPULATOR. In the civil law. The party who
asked the question in the contract of stipulation;
the other party, or he who answered, being called
the "promissor." But, in a more general sense,
the term was applied to both the parties. Calvin.
STIRPES. Lat. Descents. The root-stem, or
stock of a tree. Figuratively, it signifies in law
that person from whom a family is descended, and
also the kindred or family. Taking property by
right of representation is called "succession per
stirpes," in opposition to taking in one's own
right, or as a principal, which is termed "taking
per capita." Rotmanskey v. Heiss, 86 Md. 633,
39 A. 415. See, also, Per Stirpes and Representa-
tion.
STOCK.
Mercantile Law
The goods and wares of a merchant or trades-
man, kept for sale and traffic. Schnitzer v. Excel-
sior Powder Mfg. Co., Mo.App., 160 S.W. 282, 285.
In a larger sense. The capital of a merchant or
other person, including his merchandise, money,
and credits, or, in other words, the entire property
employed in business.
Corporation Law
The term is used in various senses. It may
mean the capital or principal fund of a corpora-
tion or joint-stock company, formed by the con-
tributions of subscribers or the sale of shares;
the aggregate of a certain number of shares sev-
erally owned by the members or stockholders of
the corporation or the proportional share of an
individual stockholder; also the incorporeal prop-
erty which is represented by the holding of a cer-
tificate of stock; and in a wider and more remote
sense, the right of a shareholder to participate in
the general management of the Company and to
share proportionally in its net profits or earnings
or in the distribution of assets on dissolution, the
term "stock" has also been held to embrace not
only capital stock of a corporation but all corpo-
rate wealth and resources, subject to all corporate
liabilities and obligations. Whitman v. Consoli-
dated Gas, Electric Light & Power Co. of Balti-
more, 148 Md. 90, 129 A. 22, 27. See also Thayer
v. Wathen, 17 Tex.Civ.App. 382, 44 S.W. 906; Har-
rison v. Vines, 46 Tex. 15; Seawright v. Dickson,
16 Ga.App. 436, 85 S.E. 625, 628; Hood Rubber
Co. v. Commonwealth, 238 Mass. 369, 131 N.E.
201, 202.
"Stock" is distinguished from "bonds" and, ordinarily,
from "debentures," in that it gives right of ownership in
part of assets of corporation and right to interest in any
surplus after payment of debt. Carson, Pirie, Scott & Co.
v. Duffy-Powers, Inc., D.C.N.Y., 9 F.Supp. 199, 201.
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The capital stock of a corporation differs widely in legal
import from the aggregate shares into which it is divided
by its charter (Farrington v. Tennessee, 95 U.S. 686, 24
L. Ed. 558; People v. Coleman, 126 N.Y. 437, 27 N.E. 818,
12 L.R.A. 762) ; the former includes only the fund of
money or other property derived by it from the sale or
exchange of its shares of stock, while the latter represents
the totality of the corporate assets and property ; Hamor
v. Engineering Co., C.C.Del., 84 F. 396. See "Capital
Stock."
The funded indebtedness of a state or government, also,
is often represented by stocks, shares of which are held by
its creditors at interest.
Classes of Corporate Stock
Preferred stock is a separate portion or class
of the stock of a corporation, which is accorded,
by the charter or by-laws, a preference or priority
in respect to dividends, over the remainder of the
stock of the corporation, which in that case is
called common stock. That is, holders of the pre-
ferred stock are entitled to receive dividends at a
fixed annual rate, out of the net earnings or prof-
its of the corporation, before any distribution of
earnings is made to the common stock. If the
earnings applicable to the payment of dividends
are not more than sufficient for such fixed annual
dividend, they will be entirely absorbed by the
preferred stock. If they are more than sufficient
for the purpose, the remainder may be given
entirely to the common stock (which is the more
usual custom) or such remainder may be dis-
tributed pro rata to both classes of the stock, in
which case the preferred stock is said to "partici-
pate" with the common. The fixed dividend on
preferred stock may be "cumulative" or "non-
cumulative." In the former case, if the stipulated
dividend on preferred stock is not earned or paid
in any one year, it becomes a charge upon the
surplus earnings of the next and succeeding
years, and all such accumulated and unpaid divi-
dends on the preferred stock must be paid off be-
fore the common stock is entitled to receive divi-
dends. In the case of "non-cumulative" preferred
stock, its preference for any given year is ex-
tinguished by the failure to earn or pay its divi-
dend in that year. If a corporation has no class
of preferred stock, all its stock is common stock.
The word "common" in this connection signifies
that all the holders of such stock are entitled to
an equal pro rata division of profits or net earn-
ings, if any there be, without any preference or
priority among themselves. Deferred stock is
rarely issued by American corporations, though it
is not uncommon in England. This kind of stock
is distinguished by the fact that the payment of
dividends upon it is expressly postponed until
some other class of stock has received a dividend,
or until some certain liability or obligation of the
corporation is discharged. If there is a class of
"preferred" stock, the common stock may in this
sense be said to be "deferred," and the term is
sometimes used as equivalent to "common" stock.
But it is not impossible that a corporation should
have three classes of stock: (1) Preferred, (2)
common, and (3) deferred; the latter class being
postponed, in respect to participation in profits,
until both the preferred and the common stock
had received dividends at a fixed rate. See Cook,
Corp. § 12; Scott v. Railroad Co., 93 Md. 475, 49 A.
327; Jones v. Railroad Co., 67 N.H. 234, 30 A.
614, 68 Am.St.Rep. 650; General Inv. Co. v. Beth-
lehem Steel Corp., 87 N.J.Eq. 234, 100 A. 347, 349;
Day v. U. S. Cast Iron Pipe & Foundry Co., 96
N.J.Eq. 736, 126 A. 302, 304.
Law of Descent
The term is used, metaphorically, to denote the
original progenitor of a family, or the ancestor
from whom the persons in question are all de-
scended; such descendants being called "branch
es." Matter of Samson's Estate, 139 Misc. 490,
249 N.Y.S. 79, 83.
General
Capital stock. See that title.
Certificate of stock. See Certificate.
Exchange of stock. See Exchange.
Guarantied stock. Stock of a corporation which
is entitled to receive dividends at a fixed annual
rate, the payment of which dividends is guaran-
tied by some outside person or corporation. Field
v. Lamson, etc., Mfg. Co., 162 Mass. 388, 38 N.E..
1126, 27 L.R.A. 136.
Public stocks. The funded or bonded debt of a
government or state.
Special stock of a corporation, in Massachusetts,
is authorized by statute. It is limited in amount
to two-fifths of the actual capital. It is subject
to redemption by the corporation at par after a
fixed time. The corporation is bound to pay a
fixed annual dividend on it as a debt. The holders
of it are in no event liable for the debts of the
corporation beyond their stock; and an issue of
special stock makes all the general stockholders,
liable for all debts and contracts of the corpora-
tion until the special stock is fully redeemed.
American Tube Works v. Boston Mach. Co., 139
Mass. 5, 29 N.E. 63.
Stock association.  A joint-stock company,
(q. v.).
Stock broker. One who buys and sells stock
as the agent of others. Banta v. Chicago, 172 Ill,
204, 50 N.E. 233, 40 L.R.A. 611; Little Rock v.
Barton, 33 Ark. 436; Gast v. Buckley, Ky., 64 S.W.
632.
Stock corporation. A corporation having a
capital stock divided into shares, and which is
authorized by law to distribute to the holders
thereof dividends or shares of the surplus profits
of the corporation. Buker v. Steele, Co.Ct., 43 N.
Y.S. 350.
Stock dividend. See Dividend.
Stock exchange. A voluntary association of
persons (not usually a corporation) who, for con-
venience in the transaction of business with each
other, have associated themselves to provide a
common place for the transaction of their busi-
ness; an association of stock-brokers. Dos Pas-
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sos, Stock-Brok. 14. The building or room used by
an association of stock-brokers for meeting for
the transaction of their common business.
Stock hi trade. Merchandise or goods kept for
sale or traffic, Woodworth & Co. v. City of Con-
cord, 78 N.H. 54, 96 A. 296, 297; Shasta Lumber
Co. v. McCoy, 85 Cal.App. 468, 259 P. 965, 967, also
that form of property owned by a craftsman upon
which he exercises his art, skill, or workmanship,
and upon which he uses the tools of his trade or
business. Armstrong Turner Millinery Co. v.
Round, 106 Kan. 146, 186 P. 979, 9 A.L.R. 1255.
Stock jobber. A dealer in stock; one who buys
and sells stock on his own account on speculation.
State v. Debenture Co., 51 La.Ann. 1874, 26 So.
600.
Stock law district. A district in which stock ,is
by law prohibited from running at large. Griffin
v. Fowler, 17 Ala.App. 44, 81 So. 426, 428.
Stock life insurance company. One in which
capital stock investment is made by subscribers
to stock, and business is thereafter conducted by
board of directors elected by its stockholders, and,
subject to statutes, distribution of earnings or
profits, as between stockholders and policy hold-
ers, is determined by board of directors. Atlantic
Life Ins. Co. v. Moncure, D.C.Va., 35 F.2d 360, 362.
Stock note. The term has no technical meaning,
and may as well apply to a note given on the sale
of stock which the bank had purchased or taken
in the payment of doubtful debts as to a note
given on account of an original subscription to
stock. Dunlap v. Smith, 12 Ill. 402.
Stock of merchandise. Goods or chattels which
a merchant holds for sale. Swift & Co. v. Tem-
pelos, 178 N.C. 487, 101 S.E. 8, 7 A.L.R. 1581;
Meier Electric & Machine Co. v. Dixon, 81 Ind.
App. 400, 143 N.E. 363, 364; Baiter v. Crum, 199
Mo.App. 380, 203 S.W. 506, 507.
Stock raising. The raising of domestic animals.
Krobitzsch v. Industrial Accident Commission of
California, 181 Cal. 541, 185 P. 396, 398.
Watered stock. See that title.
STOCKHOLDER. A person who owns shares of
stock in a corporation or joint-stock company.
Ross v. Knapp, etc., Co., 77 Ill.App. 424; Corwith
v. Culver, 69 Ill. 502; Hirshfeld v. Bopp, 145 N.Y.
84, 39 N.E. 817; Ludden & Bates v. Watt, 18 Ala.
App. 652, 94 So. 239, 240; Fuller v. Lockhart, 209
N.C. 61, 182 S.E. 733.
Owner of shares in a corporation which has a
capital stock. If a corporation has no capital
stock, the corporators and their successors are
called "members." Civ.Code Dak. § 392 (Comp.
Laws N.D.1913, § 4515; Rev.Code 1919, § 247).
STOCKHOLDER'S DERIVATIVE SUIT. An eq-
uity proceeding by a stockholder for purpose of
sustaining in his own name a right of action ex-
isting in corporation itself, where corporation
would be an appropriate plaintiff. Felsenheld v.
Bloch Bros. Tobacco Co., 119 W.Va. 167, 192 S.E.
545, 546, 123 A.L.R. 334. It is based upon two
distinct wrongs: The act whereby corporation was
caused to suffer damage, and act of corporation it-
self in refusing to redress such act. Druckerman
v. Harbord, 174 Misc. 1077, 22 N.Y.S.2d 595, 597.
STOCKHOLDER'S LIABILITY. Phrase is fre-
quently employed to denote stockholder's statu-
tory, added or double liability for corporation's
debts, notwithstanding full payment for stock,
but is often employed where stockholder, agree-
ing to pay full par value of stock, obtained stock
certificate before complete payment or where
stock, only partly paid for, is intentionally issued
by corporation as fully paid up and all or part
of 'purported consideration therefor is entirely fic-
titious. Gray Const. Co. v. Fantle, 62 S.D. 345, 253
N.W. 464.
STOCKHOLDERS' REPRESENTATIVE ACTION.
An action brought or maintained by a stockholder
in behalf of himself and all others similarly situ-
ated. New York Cent. R. Co. v. New York & Har-
lem R. Co., 193 Misc. 795, 85 N.Y.S.2d 112, 115.
STOCKHOLDER'S SUIT. One by the corpora-
tion conducted by stockholder as its representa-
tive, and the stockholder is only a nominal plain-
tiff.and the corporation is the real party in inter-
est. Rettinger v. Pierpont, 145 Neb. 161, 15 N.
W.2d 393, 397. See, also, Derivative Stockholders'
Suit.
STOCKS. A machine consisting of two pieces of
timber, arranged to be fastened together, and hold-
ing fast the legs of a person placed in it. This
was an ancient method of punishment.
STOP. Within a statute requiring a motorist
striking a person with automobile to stop requires
a definite cessation of movement for a sufficient
length of time for a person of ordinary powers
of observation to fully understand the surround-
ings of the accident. Moore v. State, 140 Tex.Cr.
R. 482, 145 S.W.2d 887, 888.
STOP ORDER. The name of an order grantable
in English chancery practice, to prevent drawing
out a fund in court to the prejudice of an as-
signee or lienholder.
A direction by customer to his broker that, if
commodity touches price named, broker shall
close trade at best available price. Alexas v. Post
& Flagg, 129 S.C. 53, 123 S.E. 769, 35 A.L.R. 969;
Richter v. Poe, 109 Md. 20, 71 A. 420, 22 L.R.A.,
N.S., 174.
STOP SIGN. A legally erected and maintained
traffic signal requiring all traffic to stop before
entering into or crossing an intersection. Sweet
v. Awtrey, 70 Ga.App. 334, 28 S.E.2d 154, 161.
STOPPAGE. In the civil law. Compensation or
set-off.
STOPPAGE IN TRANSITU. The act by which
the unpaid vendor of goods stops their progress
and resumes possession of them, while they are
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in course of transit from him to the purchaser, and
not yet actually delivered to the latter.
The right of stoppage in transitu is that which
the vendor has, when he sells goods on credit to
another, of resuming the possession of the goods
while they are in the possession of a carrier or
middle-man, in the transit to the consignee or ven-
dee, and before they arrive into his actual pos-
session, or the destination he has appointed for
them on his becoming bankrupt and insolvent. 2
Kent, Comm. 702.
The right which arises to an unpaid vendor to
resume the possession, with which he has parted,
of goods sold upon credit, before they come into
the possession of a buyer who has become insol-
vent, bankrupt, or pecuniarily embarrassed. In-
slee v. Lane, 57 N.H. 454.
The right of stoppage in transitu continues during the
transitus, that is, until the goods are delivered by the car-
rier to the buyer, or possession, actual or constructive, is
taken by the buyer. M. Degaro Co. v. Cleveland, C., C. &
St. L. Ry. Co., 123 Ohio St. 179, 174 N.E. 587, 590.
STOPPAGE OF WORK. Within unemployment
compensation law denying workman benefits, if
his unemployment was due to stoppage of work
because of labor dispute in which workman par-
ticipated means strike. Board of Review v. Mid-
Continent Petroleum Corporation, 193 Okl. 36, 141
P.2d 69, 71 72.
STORAGE. Safekeeping of goods in a warehouse
or other depository. Lincoln Sa y . Bank of Brook-
lyn v. Brown, Em.App., 137 F.2d 228, 230, 231.
STORE, v. To keep merchandise for safe cus-
tody, to be delivered in the same condition as
when received, where the safe-keeping is the prin-
cipal object of deposit, and not the consumption
or sale. O'Niel v. Buffalo F. Ins. Co., 3 N.Y. 122.
Town of Newberry v. Dorrah, 105 S.C. 28, 89 S.E.
402, 403.
STORE, n. Any place where goods are deposited
and sold by one engaged in buying and selling
them. Warburton-Beacham Supply Co. v. City of
Jackson, 151 Miss. 503, 118 So. 606, 608. A shop.
Midwestern Petroleum Corporation v. State Board
of Tax Com'rs, 206 Ind. 688, 187 N.E. 882, 888, 191
N.E. 153. Also Storehouse. Webster; De Wolfe
v. Pierce, 196 Ill.App. 360, 361.
Public Store
A government warehouse, maintained for cer-
tain administrative purposes, such as the keeping
of military supplies, the storing of imported
goods under bonds to pay duty, etc.
Stores
The supplies of different articles provided for
the subsistence and accommodation of a ship's
crew and passengers.
STOREHOUSE. A house in which things are
stored; a building for the storing of grain, food-
stuffs, or goods of any kind; a magazine; a re-
pository; a warehouse; a store. Moss v. Com-
monwealth, 271 Ky. 283, 111 S.W.2d 628, 630.
' STOREROOM. A room in an apartment or flat
house set apart and having conveniences such as
shelves, hooks, etc., for storage purposes, and is
not, for instance, a bedroom used by the tenant
in part for storing his goods. Gardner v. Roose-
velt Hotel, 175 Misc. 610, 24 N.Y.S.2d 261, 263.
STORM. Wind outburst of tumultuous force.
Schaeffer v. Northern Assur. Co., Mo.App., 177
S.W.2d 688, 691.
STORY OF BUILDING. A habitable space be-
tween two floors or a set of rooms on the same
floor or level. Biber v. O'Brien, 138 Cal.App. 353,
32 P.2d 425, 429.
STOUTHRIEFF. In Scotch law. Formerly this
word included every species of theft accompanied
with violence to the person, but of late years it
has become the vox signata for forcible and mas-
terful depredation within or near the dwelling-
house; while robbery has been more particularly
applied to violent depredation on the highway, or
accompanied by house-breaking. Alis. Prin.
Scotch Law, 227.
STOWAGE. In maritime law. The storing, pack-
ing, or arranging of the cargo in a ship, in such
a manner as to protect the goods from friction,
uising, or damage from leakage.
Money paid for a room where goods are laid;
housage. Wharton.
STOWAWAY. One who conceals himself aboard
an out-going vessel for the purpose of obtaining
free passage. U. S. ex rel. Candreva v. Smith, C.
C.A.Ill., 27 F.2d 642, 644.
STOWE. In old English law. A valley. Co.Litt.
4b.
STRADDLE. In stock-brokers' parlance the term
means the double privilege of a "put" and a "call,"
and secures to the holder the right to demand of
the seller at a certain price within a certain time
a certain number of shares of specified stock, or
to require him to take, at the same price within
the same time, the same shares of stock. Harris
v. Tumbridge, 83 N.Y. 95, 38 Am.Rep. 398; Hen-
derson v. Usher, 125 Fla. 709, 170 So. 846, 852.
It is not per se a gaming contract, unless intended
as a mere cover for a bet or wager on the future
price of the stock or commodity. Palmer v. Love,
18 Tenn.App. 579, 80 S.W.2d 100, 106.
STRAGGLER. In Navy Department regulations.
One absent without leave, with the probability
that he does not intend to desert, but, if his ab-
sence continues for 10 days, he becomes a deserter.
Reed v. U. S., C.C.A.N.Y., 252 F. 21, 22.
STRAIGHT LINE. The shortest distance be-
tween two points. Reed v. Iowa State Highway
Commission, 221 Iowa 500, 266 N.W. 47, 50.
STRAIGHT-LINE DEPRECIATION. Division of
original cost into as many years as the property
would remain in service and deduction of that
fraction of the cost for every past year. United
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States Industrial Alcohol Co. v. Helvering, C.C.A.
2, 137 F.2d 511, 516.
In estimating deterioration In a plant. Calculation from
examination and experience in like constructions the total
life period of the constituent parts of the plant, and then
deducting from their value that proportion of decrease rep-
resented by the ratio of the years which it has been in use
in relation to the entire life period as distinguished from
the "sinking-fund method" which consists in charging for
depreciation an annual sum, which, with compounding in-
terest thereon, will at the termination of the estimated life
of the investment replace the original cost, and if cut off
at any given period the accumulation will represent the
depreciated value to that date. Pacific Gas & Electric Co.
v. Devlin, 188 Cal. 33, 203 P. 1058, 1062; People ex rel.
Central Hudson Gas & Electric Co. v. State Tax Commis-
sion, 218 App.Div. 44, 217 N.Y.S. 707, 712.
STRAMINEUS HOMO. L. Lat. A man of straw,
one of no substance, put forward as bail or surety.
STRAND. A shore or bank of the sea or a river.
Bell v. Hayes, 60 App.Div. 382, 69 N.Y.S. 898;
Harris v. City of St. Helens, 72 Or. 377, 143 P.
941, 944, Ann.Cas.1916D, 1073.
STRANDING. In maritime law. The drifting,
driving, or running aground of a ship on a shore
or strand. Accidental stranding takes place where
the ship is driven on shore by the winds and
waves. Voluntary stranding takes place where
the ship is run on shore either to preserve her
from a worse fate or for some fraudulent pur-
pose. Marsh. Ins. bk. 1, c. 12, § 1. See Barrow
v. Bell, 4 Barn. & C. 736; Strong v. Sun Mut.
Ins. Co., 31 N.Y. 106, 88 Am.Dec. 242; London
Assur. Co. v. Companhia de Moagens, 17 S.Ct. 785,
167 U.S. 149, 42 L.Ed. 113; Washington Iron
Works v. St. Paul Fire & Marine Ins. Co., 128
Wash. 349, 222 P. 487, 489; Lehigh & Wilkes-Barre
Coal Co. v. Globe & Rutgers Fire Ins. Co., C.C.A.,
6 F.2d 736, 738, 43 A.L.R. 215.
STRANGER. As used with reference to the sub-
ject of subrogation, one who, in no event result-
ing from the existing state of affairs, can become
liable for the debt, and whose property is not
charged with the payment thereof and cannot
be sold therefor. McBride v. McBride, 148 Or.
478, 36 P.2d 175, 177; Home Owners' Loan Cor-
poration v. Crouse, 151 Pa.Super. 259, 30 A.2d
330, 331, 332. See, also, Strangers.
STRANGER IN BLOOD. Any person not within
the consideration of natural love and affection
arising from relationship.
STRANGERS. By this term is intended third
persons generally. Thus the persons bound by a
fine are parties, privies, and strangers; the par-
ties are either the cognizors or cognizees; the
privies are such as are in any way related to
those who levy the fine, and claim under them
by any right of blood, or other right of representa-
tion; the strangers are all other persons in the
world, except only the parties and privies. In
its general legal signification the term is opposed
to the word "privy." Those who are in no way
parties to a covenant, nor bound by it, are also
said to be strangers to the covenant. Brown. See
Robbins v. Chicago, 4 Wall. 672, 18 L.Ed. 427;
Wilson v. Smith, 213 Ky. 836, 281 S.W. 1008,
1010; State v. Mills, 23 N.M. 549,169 P. 1171, 1173;
Gronewold v. Gronewold, 304 Ill. 11, 136 N.E. 489,
490. See, also, Stranger.
STRATAGEM. A deception either by words or
actions, in times of war, in order to obtain an ad-
vantage over an enemy.
STRATOCRACY. A military government; gov-
ernment by military chiefs of an army.
STRATOR. In old English law. A surveyor of
the highways.
STRAW BAIL. See Bail.
STRAY. See Estray.
STREAM. A water course having a source and
terminus, banks, and channel, through which wa-
ters flow at least periodically, and it usually emp-
ties into other streams, lakes, or the ocean, but it
does not lose its character as a water course even
though it may break up and disappear. Mogle
v. Moore, 16 Cal.2d 1, 104 P.2d 785, 789; Everett
v. Davis, Cal.App., 107 P.2d 650, 655; Southern
Pac. Co. v. Proebstel, 61 Ariz. 412, 150 P.2d 81, 83.
A river, brook, or rivulet; anything in fact that
is liquid and flows in a line or course. French v.
Carhart, 1 N.Y. (1 Comst.) 96, 107. A current of
water. A body of water having a continuous flow
in one direction. Vandalia R. Co. v. Yeager, 60
Ind.App. 118, 110 N.E. 230, 232. It consists of a
bed, banks, and water course. St. Paul Fire &
Marine Ins. Co. v. Carroll, Tex.Civ.App., 106 S.W.
2d 757, 758.
Private Stream
A non-navigable creek or water-course, the bed
or channel of which is exclusively owned by a
private individual. See Adams v. Pease, 2 Conn.
484; Reynolds v. Com, 93 Pa. 461.
STREAMING FOR TIN. The process of work-
ing tin in Cornwall and Devon. The right to
stream must not be exercised so as to interfere
with the rights of other private individuals; e. g.,
either by withdrawing or by polluting or choking
up the water-courses or waters of others; and
the statutes 23 Hen. VIII. c. 8, and 27 Hen. VIII.
c. 23, impose a penalty of £20 for the offense.
Brown.
STREET. An urban way or thoroughfare; a road
or public way in a city, town, or village, generally
paved, and lined or intended to be lined by houses
on each side. U. S. v. Bain, 24 Fed.Cas. 943;
Brace v. New York Cent. R. Co., 27 N.Y. 271;
Home Laundry Co. v. City of Louisville, 168 Ky.
499, 182 S.W. 645, 648; Chicago, R. I. & P. Ry.
Co. v. Redding, 124 Ark. 368, 187 S.W. 651, 652,
Ann.Cas.1918D, 183. It includes all urban ways
which can be and are generally used for travel.
Department of Public Works and Buildings v.
Ryan, 357 Ill. 150, 191 N.E. 259, 262. Including
sidewalks. Snow v. Johnston, 197 Ga. 146, 28
S.E.2d 270, 276. But does not mean square. Web-
er v. Chrisamalis, 177 Misc. 772, 30 N.Y.S.2d 874,
875, and normally does not include service en-
trances or driveways leading off from the street
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onto adjoining premises. Hill & Combs v. First
Nat. Bank of San Angelo, Tex., C.C.A.Tex., 139
F.2d 740, 743.
STREET RAILWAY. See Railway.
STREIGHTEN. In the old books. To narrow or
restrict.  "The habendum should not streighten
the devise." 1 Leon. 58.
STREPITUS. In old records. Estrepement or
strip; a species of waste or destruction of prop-
erty. Spelman.
STREPITUS JUDICIALIS. Turbulent conduct in
a court of justice. Jacob.
STRIA. Curved, crooked and intermitten gouges,
of irregular depth and width and rough definition,
of certain rock surface, sometimes due to abra-
sions by icebergs. Imperial Machine & Foundry
Corp. v. G. S. Blakeslee & Co., C.C.A.N.Y., 262 F.
419, 421. A furrow, channel or hollow; depres-
sion, rut, wrinkle, concave, cup, pocket, dimple.
Maxim Mfg. Co. v. Imperial Mach. Co., C.C.A.I11.,
286 F. 79, 83.
STRICT. Exact; accurate; precise; undivat-
ing; governed or governing by exact rules.
As to strict "Construction," "Foreclosure," and
"Settlement," see those titles.
STRICT LIABILITY. Liability without fault.
Case is one of "strict liability" when neither care
nor negligence, neither good nor bad faith, neither
knowledge nor ignorance will save defendant.
Fresno Air Service v. Wood, 43 Cal.Rptr. 276, 279,
232 C.A.2d 801; Anslem v. Travelers Ins. Co., La.
App., 192 So.2d 599, 600.
STRICT! JURIS. Lat. Of strict right or law;
according to strict law. "A license is a thing stric-
ti juris; a privilege which a man does not pos-
sess by his own right, but it is conceded to him as
:an indulgence, and therefore it is to be strictly
observed." 2 Rob.Adm. 117.
STRICTISSIMI JIJRIS. Lat. Of the strictest
right or law. "Licenses being matter of special
indulgence, the application of them was formerly
strictissimi juris." 1 Edw.Adm. 328.
STRICTLY. A strict manner; closely, precise-
ly, rigorously; stringently; positively. Union Ice
& Coal Co. v. Town of Ruston, 135 La. 898, 66 So.
262. 263, L.R.A.1915B, 859.
:STRICTLY CONSTRUED. Requirement that a
penal statute be strictly construed means that
the court will not extend punishment to cases not
plainly within the language used, but at the same
time such statutes are to be fairly and reasonably
construed, and will not be given such a narrow
and strained construction as to exclude from their
operation cases plainly within their scope • and
meaning. State v. Fleming, 173 Md. 192, 195 A.
392, 393.
STRICTLY MINISTERIAL DUTY. One that is
absolute and imperative, requiring neither the
exercise of official discretion nor judgment. State
ex rel. Heller v. Thornhill, 174 Mo.App. 469, 160
S.W. 558, 559.
STRICT() JURE. Lat. In strict law. 1 Kent,
Comm. 65.
STRICTUM JUS. Lat. Strict right or law; the
rigor of the law as distinguished from equity.
STRIKE. The act of quitting work by a body
of workmen for the purpose of coercing their em-
ployer to accede to some demand they have made
upon him, and which he has refused. Jeffery-De
Witt Insulator Co. v. N. L. R. B., C.C.A.4, 91 F.2d
134, 138. A combination to obtain higher wages,
shorter hours of employment, better working con-
ditions or some other concession from employer
by the employees stopping work at a preconcert-
ed time, and it involves a combination of persons
and not a single individual. Moreland Theatres
Corp. v. Portland Moving Picture Mach. Opera-
tors' Protective Union, 140 Or. 35, 12 P.2d 333, 338.
A cessation of work as a means of enforcing com-
pliance with some demand upon the employer.
People v. Tepel, Mag.Ct., 3 N.Y.S.2d 779, 781. A
combined effort among workmen to compel the
master to the concession of a certain demand, by
preventing the conduct of his business until com-
pliance with the demand. Keith Theatre v. Vachon.
134 Me. 392, 187 A. 692, 694.
Mining Law
The strike of a vein or lode is its extension in
the horizontal plane, or its lengthwise trend or
course with reference to the points of the com-
pass; distinguished from its "dip," which is its
slope or slant, away from the perpendicular, as it
goes downward into the earth, or the angle of its
deviation from the vertical plane. Empire Star
Mines Co. v. Butler, 62 Cal.App.2d 49, 145 P.2d
49, 58.
STRIKE OFF. In common parlance, and 121 the
language of the auction-room, property is under-
stood to be "struck off" or "knocked down," when
the auctioneer, by the fall of his hammer, or by
any other audible or visible announcement, signi-
fies to the bidder that he is entitled to the property
on paying the amount of his bid, according to the
terms of the sale. Sherwood v. Reade, 7 Hill, N.
Y., 439.
A court is said to "strike off" a case when it di-
rects the removal of the case from the record or
docket, as being one over which it has no juris-
diction and no power to hear and determine it.
STRIKE SUITS. Shareholder derivative actions
begun with hope of winning large attorney fees
or private settlements, and with no intention of
benefiting corporation on behalf of which suit it
theoretically brought. Shapiro v. Magaziner, 210
A.2d 890, 894, 418 Pa. 278.
STRIKEBREAKER. One who takes the place of
workman who has left his work in an effort to
force the employer to agree to demands made.
People, on Complaint of Siegel, v. Kaye, 165 Misc.
663, 1 N.Y.S.2d 354, 355.
STRIKING A DOCKET. In English practice.
The first step in the proceedings in bankruptcy,
which consists hi making affidavit of the debt,
and giving a bond to follow up the proceedings
with effect. 2 Stenh. Comm. 199. When the affi-
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davit and bond are delivered at the bankrupt of-
fice, an entry is made in what is called the "dock-
et-book," upon which the petitioning creditor is
said to have struck a docket. Eden, Bankr. 51, 52.
STRIKING A JURY. The selecting or nominating
a jury of twelve men out of the whole number
returned as jurors on the panel. It is especially
used of the selection of a special jury, where a
panel of forty-eight is prepared by the proper
officer, and the parties, in turn, strike off a cer-
tain number of names, until the list is reduced
to twelve. A jury thus chosen is called a "struck
jury." Wallace v. Railroad Co., 8 Houst., Del.,
529, 18 A. 818; Cook v. State, 24 N.J.L. 843.
STRIKING OFF THE ROLL. The disbarring of
an attorney or solicitor.
STRIP. The act of spoiling or unlawfully taking
away anything from the land, by the tenant for
life or years, or by one holding an estate in the
land less than the entire fee. Pub.St.Mass.1882,
p. 1295.
STRIPPING A MINE. In iron mining. Removal
of the earth from the underlying body of iron ore.
Bartnes v. Pittsburg Iron Ore Co., 123 Minn. 131,
143 N.W. 117.
STRONG. Cogent, powerful, forcible. Wright v.
Austin, Tex.Civ.App., 175 S.W.2d 281, 283.
STRONG HAND. The words "with strong hand"
imply a degree of criminal force, whereas the
words vi et armis ("with force and arms") are
mere formal words in the action of trespass, and
the plaintiff is not bound to prove any force.
The statutes relating to forcible entries use the
words "with a strong hand" as describing that de-
gree of force which makes an entry or detainer of
lands criminal. Brown.
STRONGLY CORROBORATED. A degree of
corroboration amounting to corroboration from in-
dependent facts and circumstances which is clear
and satisfactory to the court and jury. Wright v.
A.ustin, Tex.Civ.App., 175 S.W.2d 281, 283.
STRUCK. In pleading. A word essential in an
indictment for murder, when the death arises from
any wounding, beating, or bruising. 1 Bulst. 184;
5 Coke, 122; 3 Mod. 202.
STRUCK JURY. See Striking a Jury.
STRUCTURAL ALTERATION OR CHANGE.
One that affects a vital and substantial portion
of a thing; that changes its characteristic appear-
ance, the fundamental purpose of its erection, the
uses contemplated, one that is extraordinary in
scope and effect, or unusual in expenditure. Pross
v. Excelsior Cleaning & Dyeing Co., 110 Misc. 195,
179 N.Y.S. 176, 179; Paye v. City of Grosse Pointe,
279 Mich. 254, 271 N.W. 826, 827.
STRUCTURE. Any construction, or any produc-
tion or piece of work artificially built up or com-
posed of parts joined together in some definite
manner. C. K. Eddy & Sons v. Tierney, 276 Mich.
333, 267 N.W. 852, 855. That which is built or
constructed; an edifice or building of any kind.
Poles connected by wires for the transmission of
electricity. Forbes v. Electric Co., 19 Or. 61, 23
P. 670, 20 Am.St.Rep. 793; a mine or pit, Helm
v. Chapman, 66 Cal. 291, 5 P. 352; a railroad track,
Lee v. Barkhampsted, 46 Conn. 213. Swings or
seats are not, McCormack v. Bertschinger, 115 Or.
250, 237 P. 363, 365; Barnes v. Montana Lumber
& Hardware Co., 67 Mont. 481, 216 P. 335, 336;
Deiner v. Sutermeister, 266 Mo. 505, 178 S.W. 757,
759; Armitage v. Bernheim, 32 Idaho, 594, 187 P.
938, 939.
STRUMPET. A whore, harlot, or courtesan.
This word was anciently used for an addition. It
occurs as an addition to the name of a woman in
a return made by a jury in the sixth year of Hen-
ry V. Wharton.
STUFF GOWN. The professional robe worn by
barristers of the outer bar; viz., those who have
not been admitted to the rank of king's counsel.
Brown.
STULTIFY. To make one out mentally incapaci-
tated for the performance of an act.
STULTILOQUIUM. Lat. In old English law.
Vicious pleading, for which a fine was imposed by
King John, supposed to be the origin of the fines
for beau-pleader. Crabb, Eng. Law, 135.
STUMP. As respects coal mining operations Is
the base or remains of a worked-out pillar left aft-
er previous mining operations to support the sur-
face. McCormack v. Jermyn, 351 Pa. 161, 40 A.
2d 477, 478.
STUMPAGE. The sum agreed to be paid to an
owner of land for trees standing (or lying) upon
his land, the purchaser being permitted to enter
upon the land and to cut down and remove the
trees; in other words, it is the price paid for a
license to cut. Blood v. Drummond, 67 Me. 478.
STUPRUM. Lat. In the Roman and civil law.
Unlawful sexual intercourse between a man and
an unmarried woman;—distinguished from adult-
ery by being committed with a virgin or widow.
Inst. 4, 18, 4; Dig. 48, 5, 6; 50, 16, 101.
Any sexual intercourse between a man and an
unmarried woman (not a slave), otherwise than
in concubinage; illicit intercourse. Webster.
Any union of the sexes forbidden by morality.
Cent. Diet
STURGEON. A royal fish which, when either
thrown ashore or caught near the coast, is the
property of the sovereign. 2 Steph.Comm. 19n,
540.
STYLE. As a verb, to call, name, or entitle one;
as a noun, the title or appellation of a person.
SUA SPONTE. Lat. Of his or its own will or
motion; voluntarily; without prompting or sug•
gestion.
SUABLE. Capable of being, or liable to be, sued.
A suable cause of action is the matured cause of
action.
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SUAPTE NATURA. Lat. In its own nature.
Suapte natura sterilis, barren in its own nature
and quality; intrinsically barren. 5 Maule & S.
170.
SUB. Lat. Under; upon.
SUB COLORE JURIS. Under color of right; un-
der a show or appearance of right or rightful
power.
SUB CONDITIONE. Upon condition. The prop-
er words to express a condition in a conveyance,
and to create an estate upon condition. Graves
v. Deterling, 120 N.Y. 447, 24 N.E. 655.
SUB CURIA. Lat. Under law.
SUB DISJUNCTIONE. In the alternative. Fleta,
lib. 2, c. 60, § 21.
SUB JUDICE. Under or before a judge or court;
under judicial consideration; undetermined. 12
East, 409.
SUB MODO. Under a qualification; subject to
a restriction or condition.
SUB NOMINE. Under the name; in the name of;
under the title of.
SUB PEDE SIGILLI. Under the foot of the seal;
under seal. 1 Strange, 521.
SUB POTESTATE. Under, or subject to, the pow-
er of another; used of a wife, child, slave, or oth-
er person not sui juris.
SUB SALVO ET SECURO CONDUCTU. Under
safe and secure conduct. 1 Strange, 430. Words
in the old writ of habeas corpus.
SUB SILENTIO. Under silence; without any no-
tice being taken. Passing a thing sub silentio
may be evidence of consent.
SUB SPE RECONCILIATIONIS. Under the hope
of reconcilement. 2 Kent, Comm. 127.
SUB SUO PERICULO. At his own risk. Fleta,
lib, 2, c. 5, § 5.
SUBAGENT. An under-agent; a substituted
agent; an agent appointed by one who is himself
an agent. 2 Kent, Comm. 633. A person appoint-
ed by an agent to perform some duty, or the whole
of the business, relating to his agency. A person
employed by an agent to assist him in transacting
the affairs of his principal. But a mere servant
of an agent is not a "subagent" Gulf Refining
Co. v. Shirley, Tex.Civ.App., 99 S.W.2d 613, 615.
SUBALTERN. An inferior or subordinate of-
ficer. An officer who exercises his authority un-
der the superintendence and control of a superior.
SUB-BALLIVUS. In old English law. An under-
bailiff; a sheriff's deputy. Fleta, lib. 2, c. 68, § 2.
SUBJACENT
SUBCONTRACTOR. One who takes portion of
a contract from principal contractor or another
subcontractor. Hardware Mut. Casualty Co. v.
Hilderbrandt, C.C.A.Okl., 119 F.2d 291, 297, 299.
One who has entered into a contract, express or
implied, for the performance of an act with the
person who has already contracted for its per-
formance. Phill. Mech. Liens § 44; Lester v.
Houston, 101 N.C. 611, 8 S.E. 366; Gerber v.
Sherman, 120 N.J.L. 237, 198 A. 762, 764.
SUBDITUS. Lat. In old English law. A vassal;
a dependent; any one under the power of another.
Spelman.
SUBDIVIDE. To divide a part into smaller parts;
to separate into smaller divisions. As, where an
estate is to be taken by some of the heirs per
stirpes, it is divided and subdivided according to
the number of takers in the nearest degree and
those in the more remote degree respectively.
SUBDIVISION. Division into smaller parts of
the same thing or subject-matter. Kansas City v.
Neal, 122 Mo. 232, 26 S.W. 695, 696.
SUBDUCT. In English probate practice, to sub-
duct a caveat is to withdraw it.
SUBFLOW. Those waters which slowly find their
way through sand and gravel constituting bed of a
stream, or lands under or immediately adjacent
to stream. Maricopa County Municipal Water
Conservation Dist. No. 1 v. Southwest Cotton
Co., 39 Ariz. 65, 4 P.2d 369, 380.
SUBHASTARE. Lat. In the civil law. To sell
at public auction, which was done sub hasta, un-
der a spear; to put or sell under the spear. Cal-
vin.
SUBHASTATIO. Lat. In the civil law. A sale
by public auction, which was done under a spear,
fixed up at the place of sale as a public sign of
it. Calvin.
SUBINFEUDATION. The system which the feu-
dal tenants introduced of granting smaller es-
tates out of those which they held of their lord,
to be held of themselves as inferior lords. As this
system was proceeding downward ad infinitum,
and depriving the lords of their feudal profits, it
was entirely suppressed by the statute Quia Emp-
tores, 18 Edw. I. c. 1., and instead of it alienation
in the modern sense was introduced, so that
thenceforth the alienee held of the same chief lord
and by the same services that his alienor before
him held. Brown.
SUBIRRIGATE. To irrigate below the surface,
as by a system of underground porous pipes, or
by natural percolation through the soil. Morrow
v. Farmers' Irr. Dist., 117 Neb. 424, 220 N.W. 680,
682.
SUB-BOIS. Coppice-wood. 2 Inst. 642.
SUBCONTRACT. See Contract.
SUBJACENT SUPPORT. The right of land to be
supported by the land which lies under it. See,
also, Support.
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SUBJECT
SUBJECT.
Constitutional Law
One that owes allegiance to a sovereign and
is governed by his laws. The natives of Great
Britain are subjects of the British government.
Men in free governments are subjects as well as
citizens; as citizens they enjoy rights and fran-
chises; as subjects they are bound to obey the
laws. Webster. The term is little used, in this
sense, in countries enjoying a republican form of
government. The Pizarro, 2 Wheat. 245, 4 L.Ed.
226; Swiss Nat. Ins. Co. v. Miller, 267 U.S. 42, 45
S.Ct. 213, 214, 69 L.Ed. 504.
Legislation
The matter of public or private concern for
which law is enacted. State ex rel. Jensen v. Kel-
ly, 65 S.D. 345, 274 N.W. 319, 323. Thing legis-
lated about or matters on which Legislature op-
erates to accomplish a definite object or objects
reasonably related one to the other. Crouch v.
Benet, 198 S.C. 185, 17 S.E.2d 320, 322. The mat-
ter or thing forming the groundwork of the act.
McCombs v. Dallas County, Tex.Civ.App., 136 S.
W.2d 975, 982.
The constitutions of several of the states require that
every act of the legislature shall relate to but one subject,
which shall be expressed in the title of the statute. Ex
parte Thomas, 113 Ala. 1, 21 So. 369; In re Mayer, 50 N.Y.
504; State v. County Treasurer, 4 S.C. 528; State v. Laun-
dy, 103 Or. 443, 204 P. 958, 963; Roark v. Prideaux, Tex.
Civ.App., 284 S.W. 624, 627; Hoyne v. Ling, 264 Ill. 506,
106 N.E. 349. But term "subject" within such constitution-
al provisions is to be given a broad and extensive meaning
so as to allow legislature full scope to include in one act all
matters having a logical or natural connection. Shaw v.
State, 76 Okl.Cr. 271, 134 P.2d 999, 1006; Jaffee v. State,
76 Okl.Cr. 95, 134 P.2d 1027, 1032.
Logic
That concerning which the affirmation in a
proposition is made; the first word in a proposi-
tion. State v. Armstrong, 31 N.M. 220, 243 P. 333,
337.
Scotch Law
The thing which is the object of an agreement.
SUBJECT-MATTER. The subject, or matter pre-
sented for consideration; the thing in dispute;
the right which one party claims as against the
other, as the right to divorce; of ejectment; to
recover money; to have foreclosure. Flower
Hospital v. Hart, 178 Okl. 447, 62 P.2d 1248, 1252.
Nature of cause of action, and of relief sought.
Moffatt v. Cassimus, 238 Ala. 99, 190 So. 299, 300.
SUBJECT TO. Liable, subordinate, subservient,
inferior, obedient to; governed or affected by;
provided that; provided; answerable for. Ameri-
can Mfg. Co. v. Commonwealth, 251 Mass. 329,
146 N.E. 801; Hannibal Trust Co. v. Elzea, 315 Mo.
485, 286 S.W. 371, 377; Allen v. Simmons, 97 W.
Va. 318, 125 S.E. 86, 88; Middleton v. Findla, 25
Cal. 76; Manning v. Sams, 143 Ga. 205, 84 S.E. 451;
Homan v. Employers Reinsurance Corporation,
345 Mo. 650, 136 S.W.2d 289, 302, 127 A.L.R. 163.
SUBJECTION. The obligation of one or more per-
sons to act at the discretion or according to the
judgment and will of others.
SUBLATA CAUSA TOLLITUR EFFECTUS. Co.
Litt. 303. The cause being removed the effect
ceases.
SUBLATA VENERATIONE MAGISTRATUUM,.
RES PUBLICA RUIT. When respect for magis-
trates is taken away, the commonwealth falls..
Jenk. Cent. p. 43, case 81.
SUBLATO FUNDAMENTO CADIT OPUS. Jenk..
Cent. 106. The foundation being removed, the su-
perstructure falls.
SUBLATO PRINCIPAL!, TOLLITUR ADJUNC-
TUM. When the principal is taken away, the in-
cident is taken also. Co. Litt. 389a.
SUBLEASE, See Lease.
SUBLETTING. A leasing by lessee of a whole or
part of premises during a portion of unexpired
balance of his term. O'Neil v. A. F. Oys & Sons,.
216 Minn. 391, 13 N.W.2d 8, 11. See, also, Sub-
lease.
SUBMARINE BASE. See Base.
SUBMERGENCE. As it concerns the proprietor-
ship of land, consists in the disappearance of land
under water and the formation of a more or less
navigable body over it. Michelsen v. Leskowicz,.
269 App.Div. 693, 55 N.Y.S.2d 831, 838.
SUBMISSION. A yielding to authority. A citizen
is bound to submit to the laws; a child to his par-
ents.
Maritime Law
Submission on the part of the vanquished, and
complete possession on the part of the victor,
transfer property as between belligerents. The
Alexander, 1 Gall. 532, Fed.Cas.No.164.
Practice
A contract between two or more parties where-
by they agree to refer the subject in dispute to
others and to be bound by their award. District
of Columbia v. Bailey, 171 U.S. 161, 18 S.Ct. 868,
872, 43 L.Ed. 118. Schoolnick v. Finman, 108 Conn.
478, 144 A. 41, 42.
The submission itself implies an agreement to abide the
result, even if no such agreement were expressed. Whitch-
er v. Whitcher, 49 N.H. 176, 180, 6 Am. Rep. 486.
SUBMISSION BOND. The bond by which the par-
ties agree to submit their matters to arbitration,
and by which they bind themselves to abide by the
award of the arbitrator. Brown.
SUBMIT. To commit to the discretion of another.
Board of Education of Cherokee County v. Board
of Com'rs of Cherokee County, 150 N.C. 116, 63
S.E. 724, 729. To propound; to present for deter-
mination; as an advocate submits a proposition
for the approval of the court. MacDermot v.
Grant, 181 Cal. 332, 184 P. 396; Noland v. Hay-
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SUBROGATION
ward, 69 Colo. 181, 192 P. 657, 658; People ex rel.
Kerner v. Huls, 355 Ill. 412, 189 N.E. 346, 348.
SUBMORTGAGE. When a person who holds a
mortgage as security for a loan which he has
made, procures a loan to himself from a third
person, and pledges his mortgage as security, he
effects what is called a "submortgage."
SUBNERVARE. To ham-string by cutting the
sinews of the legs and thighs.
It was an old custom meretrices et impudicas
mulieres subnervare. Wharton.
SUBNOTATIONS. In the civil law. The answers
of the prince to questions which had been put to
him respecting some obscure or doubtful point of
law.
SUBORDINATE. Placed in a lower order, class,
or rank; occupying a lower position in a regular
descending series; inferior in order, nature, dig-
nity, power, importance, or the like; belonging
to an inferior order in classification, and having a
lower position in a recognized scale; secondary,
minor. In re Fidelity Union Title & Mortgage
Guaranty Co., 118 N.J.Eq. 155, 177 A. 449, 452.
SUBORDINATE OFFICER. One who performs
duties imposed on him under direction of a prin-
cipal or superior officer or he may be an inde-
pendent officer subject only to such directions as
the statute lays on him. State ex rel. Landis v.
Blake, 110 Fla. 178, 148 So. 566, 570.
SUBORN. To prepare. provide, or procure espe-
cially in a secret or underhand manner. United
States v. Silverman, C.C.A.Pa., 106 F.2d 750, 751.
In criminal law. To procure another to commit
perjury. Steph.Crim.Law, 74.
SUBORNATION OF PERJURY. In criminal law.
The offense of procuring another to take such a
false oath as would constitute perjury in the prin-
cipal. Stone v. State, 118 Ga. 705, 45 S.E. 630, 98
Am.St.Rep. 145; State v. Fahey, 3 Pennewill, Del.,
594, 54 A. 690; State v. Richardson, 248 Mo. 563,
154 S.W. 735, 737, 44 L.R.A.,N.S., 307.
SUBORNER. One who suborns or procures an-
other to commit any crime, particularly to commit
perjury.
SUBPOENA. (Lat. Sub, under, poena, penalty).
A process to cause a witness to appear and give
testimony, commanding him to lay aside all pre-
tenses and excuses, and appear before a court or
magistrate therein named at a time therein men-
tioned to testify for the party named under a pen-
alty therein mentioned. Alexander v. Harrison,
2 Ind.App. 47, 28 N.E. 119, 121.
This is called distinctively a subpcena ad testificandum.
Chancery Practice
A mandatory writ or process directed to and
requiring one or more persons to appear at a time
to come and answer the matters charged against
him or them. Gondas v. Gondas, 99 N.J.Eq. 473,
134 A. 615, 618,
The writ of subpcena was originally proceeding in courts
of common law to enforce attendance of witness, but was
used in chancery for same purpose as citation in courts of
civil and canon law, to compel appearance of defendant
and to require him to answer plaintiff's allegations on
oath. Gondas v. Gondas, 99 N.J.Eq. 473, 134 A. 615, 618.
SUBPCENA AD TESTIFICANDUM. Lat. Sub-
poena to testify. A technical and descriptive term
for the ordinary subpcena. Catty v. Brockelbank,
124 N.J.Law 360, 12 A.2d 128, 129. See Subpoena.
SUBP4ENA DUCES TECUM. A process by which
the court, at the instances of a suitor, commands
a witness who has in his possession or control
some document or paper that is pertinent to the
issues of a pending controversy, to produce it at
the trial. State ex rel. Everglades Cypress Co. v.
Smith, 104 Fla. 91, 139 So. 794; Ex parte Hart, 240
Ala. 642, 200 So. 783, 785.
SUBREPTIO. Lat. In the civil law. Obtaining
gifts of escheat, etc., from the king by concealing
the truth. Bell; Calvin.
SUBREPTION. In French law. The fraud com-
mitted to obtain a pardon, title, or grant, by al-
leging facts contrary to truth.
SUBROGATION. The substitution of one person
in the place of another with reference to a law-
ful claim, demand or right, Whyel v. Smith, 101
Fla. 971, 134 So. 552, 554; so that he who is sub-
stituted succeeds to the rights of the other in re-
latio.p to the debt or claim, and its rights, reme-
dies, or securities. Home Owners' Loan Corpora-
tion v. Baker, 299 Mass. 158, 12 N.E.2d 199, 201;
Gerken v. Davidson Grocery Co., 57 Idaho 670, 69
P.2d 122, 126. A legal fiction through which a
person who, not as a volunteer or in his own
wrong, and in absence of outstanding and superior
equities, pays debt of another, is substituted to
all rights and remedies of the other, and the debt
is treated in equity as still existing for his bene-
fit, and the doctrine is broad enough to include
every instance in which one party pays the debt
for which another is primarily answerable, and
which in equity and good conscience should have
been discharged by such other. Home Owners'
Loan Corporation v. Sears, Roebuck & Co., 123
Conn. 232, 193 A. 769, 772. The principle which
lies at the bottom of the doctrine is that the per-
son seeking it must have paid the debt under
grave necessity to save himself a loss. The right
is never accorded to a volunteer. Callan Court
Co. v. Citizens & Southern Nat. Bank, 184 Ga. 87,
190 S.E. 831, 856.
"Subrogation" is equitable remedy borrowed from civil
law. Ierardi v. Farmers' Trust Co. of Newark, 4 W.W.
Harr. Del., 246, 151 A. 822, 825. And as a matter of
right, independently of agreement, takes place only for
the benefit of insurers ; or of one who, being himself a
creditor, has satisfied the lien of a prior creditor ; or for
the benefit of a purchaser who has extinguished an incum-
brance upon the estate which he has purchased; or of a
co-obligor or surety who has paid the debt which ought, in
whole or in part, to have been met by another. The doc-
trine of "subrogation" is not applied for the mere stranger
or volunteer who has paid the debt of another without any
assignment or agreement for subrogation, without being
under any legal obligation to make the payment, and with-
out being compelled to do so for the preservation of any
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rights or property of his own. Harford Bank of Bel Air v.
Hopper's Estate, 169 Md. 314, 181 A. 751, 755.
It is also said that its elements are: (1) That party
claiming it shall have paid debt; (2) that he was not a
volunteer, but had a direct interest in discharge of debt or
lien; (3) that he was secondarily liable for debt or dis-
charge of lien; (4) that no injustice would be done to the
other party by allowance of the equity. Hampton Loan &
Exchange Bank v. Lightsey, 155 S.C. 222, 152 S.E. 425, 427.
Subrogation is of two kinds, either conventional
or legal; the former being where the subrogation
is express, by the acts of the creditor and the
third person; the latter being (as in the case Of
sureties) where the subrogation is effected or im-
plied by the operation of the law. Gordon v. Ste-
wart, 4 Neb., Unof., 852, 96 N.W. 628; Connecti-
cut Mut. L. Ins. Co. v. Cornwell, 72 Hun, 199, 25
N.Y.S. 348; French v. Grand Beach Co., 239 Mich.
575, 215 N.W. 13, 14; Meyer v. Florida Home
Finders, 90 Fla. 128, 105 So. 267, 268; Combs v.
Agee, 148 Va. 471, 139 S.E. 265, 266.
SUBROGEE. A person who is subrogated; one
who succeeds to the rights of another by subroga-
tion.
SUBSCRIBE. Literally to write underneath, as
one's name; sub, under; scribere, to write; or, to
write below a documentary statement, and in its
popular meaning is usually limited to a signature
at the end of a printed or written instrument.
Corporation Commission of North Carolina v.
Wilkinson, 201 N.C. 344, 160 S.E. 292, 294. In re
Arcowsky's Will, 171 Misc. 41, 11 N.Y.S.2d 853,
854. Also to agree in writing to furnish money
or its equivalent. Jefferson County Farm Bureau
v. Sherman, 208 Iowa 614, 226 N.W. 182, 185.
SUBSCRIBER. One who writes his name under
a written instrument; one who affixes his signa-
ture to any document, whether for the purpose
of authenticating or attesting it, of adopting its
terms as his own expressions, or of binding him-
self by an engagement which it contains.
One who becomes bound by a subscription to
the capital stock of a corporation. Latimer v.
Bennett, 37 Ga.App. 246, 139 S.E. 570, 572. A "sub-
scriber" is one who has agreed to take stock from
the corporation on the original issue of such
stock. Jones v. Rankin, 19 N.M. 56, 140 P. 1120,
1121. "Subscriber," as used in the Workmen's
Compensation Act, means an employer who has
become a member of the association or insured
under the act. In re Cox, 225 Mass. 220, 114 N.E.
281, 283.
SUBSCRIBING WITNESS. He who witnesses or
attests the signature of a party to an instrument,
and in testimony thereof subscribes his own name
to the document.
One who sees a writing executed, or hears it
acknowledged, and at the request of the party
thereupon signs his name as a witness.
SUBSCRIPTIO. Lat. In the civil law. A writing
under, or under-writing; a writing of the name
under or at the bottom of an instrument by way
of attestation or ratification; subscription.
That kind of imperial constitution which was
granted in answer to the prayer of a petitioner
who was present. Calvin.
SUBSCRIPTION. The act of writing one's name
under a written instrument; the affixing one's
signature to any document, whether for the pur-
pose of authenticating or attesting it, of adopting
its terms as one's own expressions, or of binding
one's self by an engagement which it contains.
Subscription is the act of the hand, while attestation is
the act of the senses. To subscribe a paper published as a
will is only to write on the same paper the name of the
witness; to attest a will is to know that it was published
as such, and to certify the facts required to constitute an
actual and legal publication. In re Downie's Will, 42 Wis.
66, 76.
A written contract by which one engages to
take and pay for capital stock of a corporation,
or to contribute a sum of money for a designated
purpose, either gratuitously, as in the case of sub-
scribing to a charity, or in consideration of,' an
equivalent to be rendered, as a subscription to a
periodical, a forthcoming book, a series of enter-
tainments, or the like. Davis v. Roney, 124 Kan.
132, 257 P. 746, 747; First Caldwell Oil Co. v.
Hunt, 100 N.J.L. 308, 127 A. 209, 210.
SUBSCRIPTION LIST. A list of subscribers to
some agreement with each other or a third per-
son.
SUBSELLIA. Lat. In Roman law. Lower seats
or benches, occupied by the judices and by in-
ferior magistrates when they sat in judgment, as
distinguished from the tribunal of the prEetor.
Calvin.
SUBSEQUENS MATRIMONIUM TOLLIT PEC-
CATUM PRIECEDENS. A subsequent marriage
[of the parties] removes a previous fault,  e.,
previous illicit intercourse, and legitimates the
offspring. A rule of Roman law.
SUBSEQUENT. Following in time; coming or
being later than something else; succeeding.
Commonwealth v. Ellett, 174 Va. 403, 4 S.E.2d
762, 765.
SUBSEQUENT CONDITION. See Condition.
SUBSEQUENT CREDITOR. One who becomes
a creditor after a transfer sought to be impeached
as fraudulent is made. Edwards v. Monning, 63
Ohio App. 449, 27 N.E.2d 156, 158.
SUBSIDIARY CORPORATION. One in which an-
other corporation owns at least a majority of the
shares, and thus has control. Wheeler v. New
York, N. H. & H. R. Co., 112 Conn. 510, 153 A.
159, 160.
See, also, Corporation.
SUBSIDY. Something, usually money, donat-
ed or given or appropriated by the government
through its proper agencies, in this country by the
Congress. Kennecott Copper Corp. v. State Tax
Commission, D.C.Utah, 60 F.Supp. 181, 182.
In American law. A grant of money made by
government in aid of the promoters of any enter-
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prise, work, or improvement in which the govern-
ment desires to participate, or which is considered
a proper subject for state aid, because likely to
be of benefit to the public.
In English law. An aid, tax, or tribute granted
by parliament to the king for the urgent occa-
sions of the kingdom, to be levied on every sub-
ject of ability, according to the value of his lands
or goods. Jacob.
In international law. The assistance given in
money by one nation to another to enable it the
better to carry on a war, when such nation does
not join directly in the war. Vattel, bk. 3, § 82.
SUBSISTENCE. Support. Majors v. Lewis and
Clark County, 60 Mont. 698, 201 P. 268, 269. Means
of support, provisions, or that which procures
provisions or livelihood. Dyer v. Dyer, 212 N.C.
620, 194 S.E. 278.
SUBSOIL. The word includes, prima facie, all
that is below the actual surface, down to the cen-
ter of the earth. 17 L.J.C.P. 162. It is a wider
term than mines, quarries, or minerals. 2 L.R.
Ir. 339.
SUBSTANCE. Essence; the material or essential
part of a thing, as distinguished from "form."
State v. Burgdoerfer, 107 Mo. 1, 17 S.W. 646, 14
L.R.A. 846; Pierson v. Insurance Co., 7 Houst.,
Del., 307, 31 A. 966; Metzroth v. City of New York,
241 N.Y. 470, 150 N.E. 519, 520; State v. Gregory,
198 Iowa 316, 198 N.W. 58, 60. That which is es-
sential. Rose v. Osborne, 136 Me. 15, 1 A.2d 225,
226.
It means not merely subject of act, but an intelligible
abstract or synopsis of its material and substantial ele-
ments, though the "substance" may be stated without re-
cital of any details. State, on Inf. of Murphy, v. Brooks,
241 Ala. 55, 1 So.2d 370, 371.
SUBSTANTIAL. Of real worth and importance;
of considerable value; valuable. Tax Commission
of Ohio v. American Humane Education Soc., 42
Ohio App. 4, 181 N.E. 557. Belonging to sub-
stance; actually existing; real; not seeming or
imaginary; not illusive; solid; true; veritable.
Seglem v. Skelly Oil Co., 145 Kan. 216, 65 P.2d
553, 554. Something worth while as distinguished
from something without value or merely nominal.
In re Krause's Estate, 173 Wash. 1, 21 P.2d 268.
Synonymous with material. Lewandoski v. Fin-
kel, 129 Conn. 526, 29 A.2d 762, 764.
A claim to bankrupt's property is "substantial" so as to
preclude summary proceeding if there are probable facts
or circumstances sufficient to support a reasonable legal
hypothesis upon which it should be allowed. Atlanta
Flooring & Insulation Co. v. Russell, C.C.A.Ga., 146 F.2d
884, 886, 888.
SUBSTANTIAL COMPLIANCE RULE. In like
insurance law is that where insured has done sub-
stantially all he is required to do under policy to
effect change in beneficiary and mere ministerial
acts of insurer's officers and agents only remain
to be done, change will take effect. Inter-South-
ern Life Ins. Co. v. Cochran, 259 Ky. 677, 83 S.W.
2d 11, 14.
SUBSTANTIAL DAMAGES. See Damages.
SUBSTANTIAL EQUIVALENT OF PATENTED
DEVICE. Same as thing itself, so that if two
devices do same work in substantially same way,
and accomplish substantially same results, they
are equivalent, even though differing in name,
form, or shape. Bedell v. Dictograph Products
Co., 251 App.Div. 243, 296 N.Y.S. 25, 32; Freeman
v. Altvater, C.C.A.Mo., 66 F.2d 506, 511.
SUBSTANTIAL JUSTICE. Justice administered
according to the rules of substantive law, notwith-
standing errors of procedure. Interstate Bankers
Corporation v. Kennedy, D.C.Mun.App., 33 A.2d
165, 166.
SUBSTANTIAL PERFORMANCE. Exists where
there has been no willful departure from the
terms of the contract, and no omission in essen-
tial points, and the contract has been honestly
and faithfully performed in its material and sub-
stantial particulars, and the only variance from
the strict and literal performance consists of tech-
nical or unimportant omissions or defects. Coth-
erman v. Oriental Oil Co., Tex.Civ.App., 272 S.W.
616, 619; Brown v. Aguilar, 202 Cal. 143, 259 P.
735, 737; Cramer v. Esswein, 220 App.Div. 10, 220
N.Y.S. 634; Connell v. Higgins, 170 Cal. 541, 150
P. 769, 774. Performance except as to unsub-
stantial omissions with compensation therefor.
Cassino v. Yacevich, 261 App.Div. 685, 27 N.Y.S.
2d 95, 97; 99.
Equitable doctrine of "substantial performance", pro-
tects against forfeiture, for technical inadvertence or trivial
variations or omissions in performance. Sgarlat v. Grif-
fith, 349 Pa. 42, 36 A.2d 330, 332.
SUBSTANTIALLY. Essentially; without mate-
rial qualification; in the main; in substance; ma-
terially; in a substantial manner. Kirkpatrick
v. Journal Pub. Co., 210 Ala. 10, 97 So. 58, 59.,
Gibson v. Glos, 271 Ill. 368, 111 N.E. 123, 124; Mc-
Ewen v. New York Life Ins. Co., 23 Cal.App. 694,
139 P. 242, 243. About, actually, competently, and
essentially. Gilmore v. Red Top Cab Co. of Wash-
ington, 171 Wash. 346, 17 P.2d 886, 887.
SUBSTANTIATE. To establish the existence or
truth of, by true or competent evidence, or to ver-
ify. State v. Lock, 302 Mo. 400, 259 S.W. 116, 120;
Graves v. School Committee of Wellesley, 299
Mass. 80, 12 N.E.2d 176, 179.
SUBSTANTIVE. An essential part or constitu-
ent or relating to what is essential. Stewart-War-
ner Corporation v. Le Vally, D.C.Ill., 15 F.Supp.
571, 576.
SUBSTANTIVE EVIDENCE. That adduced for
the purpose of proving a fact in issue, as opposed
to evidence given for the purpose of discrediting
a witness, (i. e., showing that he is unworthy of
belief,) or of corroborating his testimony. Best,
Ev. 246, 773, 803.
SUBSTANTIVE FELONY. An independent fel-
ony; one not dependent upon the conviction of
another person for another crime. Karakutza v.
State, 163 Wis. 293, 156 N.W. 965, 966; Johnson
v. State, 68 Fla. 528, 67 So. 100, 103.
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SUBSTANTIVE LAW. That part of law which
creates, defines, and regulates rights, as opposed
to "adjective or remedial law," which prescribes
method of enforcing the rights or obtaining re-
dress for their invasion. Maurizi v. Western
Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268,
272; Mix v. Board of Com'rs of Nez Perce County,
18 Idaho, 695, 112 P. 215, 220, 32 L.R.A.,N.S., 534.
SUBSTITUTE, n. One who or that which stands
in the place of another; that which stands in lieu
of something else. State v. Fargo Bottling Works
Co., 19 N.D. 396, 124 N.W. 387, 391, 26 L.R.A.,N.S.,
872. A person hired by one who has been draft-
ed into the military service of the country, to go
to the front and serve in the army in his stead.
SUBSTITUTE, v. To put in the place of another
person or thing; to exchange. State ex rel. Wool-
sey v. Morgan, 138 Neb. 635, 294 N.W. 436, 438;
Toledo Edison Co. v. McMaken, C.C.A.Ohio, 103 F.
2d 72, 75.
SUBSTITUTE DEFENDANT. One who takes the
place of another in the same suit or controversy
and not one who is sued upon an entirely different
cause of action. McCann v. Bentley Stores Cor-
poration, D.C.Mo., 34 F.Supp. 231, 233.
SUBSTITUTED EXECUTOR. One appointed to
act in the place of another executor upon the hap-
pening of a certain event; e. g., if the latter
should refuse the office.
SUBSTITUTED . SERVICE. In American law.
Service of process upon a defendant in any man-
ner, authorized by statute, other than personal
service within the jurisdiction; as by publication,
by mailing a copy to his last known address, or by
personal service in another state. See Ruhle v.
Caffrey, 115 N.J.L. 517, 180 A. 834, 835.
In English practice. Service of process made
under authorization of the court upon some other
person, when the person who should be served
cannot be found or cannot be reached.
SUBSTITUTES. In Scotch law. The person first
called or nominated in a tailzie (entailment of an
estate upon a number of heirs in succession) is
called the "institute" or "heir-institute;" the rest
are called "substitutes."
SUBSTITUTIO IILZEREDIS. Lat. In Roman law,
is was competent for a testator after instituting
a hceres (called the "hceres institutus") to sub-
stitute another (called the "hceres substitutes") in
his place in a certain event. If the event upon
which the substitution was to take effect was the
refusal of the instituted heir to accept the inherit-
ance at all, then the substitution was called "vul-
garis," (or common;) but if the event was the
death of the infant (pupillus) after acceptance,
and before attaining his majority, (of fourteen
years if a male, and of twelve years if a female,)
then the substitution was called "pupillaris," (or
for minors.) Brown.
SUBSTITUTION. Putting in place of another
thing, change of one thing for another, serving in
lieu of another, having some of its parts replaced.
In re Cooke's Estate, 147 Misc. 528, 264 N.Y.S.
336.
In the civil law. The putting one person in place
of another; particularly, the act of a testator in
naming a second devisee or legatee who is to take
the bequest either on failure of the original de-
visee or legatee or after him.
"Substitution," with respect to wills, and in view of Civ.
Code, art. 1520, prohibiting substitution, is the putting of
one person in the place of another so that he may, in de-
fault of ability in the former, or after him, have the bene-
fit of the devise or legacy, particularly the act of testator
in naming a second devisee or legatee who is to take the
bequest on failure of the original devisee or legatee, or
after him. In re Courtin, 144 La. 971, 81 So. 457, 459.
In Scotch law. The enumeration or designation
of the heirs in a settlement of property. Substi-
tutes in an entail are those heirs who are appoint-
ed in succession on failure of others.
SUBSTITUTIONAL,  SUBSTITUTIONARY.
Where a will contains a gift of property to a class
of persons, with a clause providing that on the
death of a member of the class before the period
of distribution his share is to go to his issue, (if
any,) so as to substitute them for him, the gift
to the issue is said to be substitutional or substi-
tutionary. A bequest to such of the children of
A. as shall be living at the testator's death, with a
direction that the issue of such as shall have died
shall take the shares which their parents would
have taken, if living at the testator's death, is an
example. Sweet. Acken v. Osborn, 45 N.J.Eq.
377, 17 A. 767; In re De Laveaga's Estate, 119 Cal.
651, 51 P. 1074.
SUBSTITUTIONARY EVIDENCE. Such as is
admitted as a substitute for what would be the
original or primary instrument of evidence; as
where a witness is permitted to testify to the con-
tents of a lost document.
SUBSTITUTIONARY EXECUTOR. See Execu-
tor.
SUBSTRACTION. In French law. The fraudu-
lent appropriation of any property, but particular-
ly of the goods of a decedent's estate.
SUBTENANT. An under-tenant; one who leases
all or a part of the rented premises from the orig-
inal lessee for a term less than that held by the
latter. Forrest v. Durnell, 86 Tex. 647, 26 S.W.
481; Peak v. Gaddy, 152 Okl. 138, 3 P.2d 1042, 1043.
SUBTERFUGE. That to which one resorts for
escape or concealment. Los Angeles Fisheries v.
Crook, C.C.A.Cal., 47 F.2d 1031, 1035.
SUBTERRANEAN WATERS, See Water.
SUBTRACTION. The offense of withholding or
withdrawing from another man what by law he is
entitled to. There are various descriptions of this
offense, of which the principal are as follows: (1)
Subtraction of suit and services, which is a spe-
cies of injury affecting a man's real property, and
consists of a withdrawal of (or a neglect to per-
form or pay) the fealty, suit of court, rent, or
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services reserved by the lessor of the land. (2)
Subtraction of tithes is the withholding from the
parson or vicar the tithes to which he is entitled,
and this is cognizable in the ecclesiastical courts.
(3) Subtraction of conjugal rights is the with-
drawing or withholding by a husband or wife of
those rights and privileges which the law allows
to either party. (4) Subtraction of legacies is
the withholding or detaining of legacies by an exe-
cutor. (5) Subtraction of church rates, in Eng-
lish law, consists in the refusal to pay the amount
of rate at which any individual parishioner has
been assessed for the necessary repairs of the
parish church. Brown.
SUBTRACTION OF CONJUGAL RIGHTS. The
act of a husband or wife living separately from
the other without a lawful cause. 3 Bl.Comm. 94.
See, also, Subtraction.
SUBURBAN!. Lat. In old English law. Hus-
bandmen.
SUBVASSORES. In old Scotch law. Base hold-
ers; inferior holders; they who held their lands
of knights. Skene.
SUCCESSIO. Lat. In the civil law. A coming
in place of another, on his decease; a coming into
the estate which .a deceased person had at the
time of his death. This was either by virtue of
an express appointment of the deceased person by
his will, (ex testamento,) or by the general ap-
pointment of law in case of intestacy, (ab intes-
tato.) Inst. 2, 9, 7; Heinecc. Elem. lib. 2, tit. 10.
SUCCESSION. The devolution of title to prop-
erty under the law of descent and distribution.
State ex rel. Walker v. Payne, 129 Mo. 468, 31 S.W.
797, 798, 3 L.R.A. 576. The act or right of legal or
official investment with a predecessor's office, dig-
nity, possession, or functions; also the legal or
actual order of so succeeding from that which is
or is to be vested or taken. Glascott v. Bragg, 111
Wis. 605, 87 N.W. 853, 854, 56 L.R.A. 258.
The word when applied to realty denotes persons who
take by will or inheritance and excludes those who take by
deed, grant, gift, or any form of purchase or contract.
Olsan Bros. v. Miller, Tex.Civ.App., 108 S.W.2d 856, 857.
The right by which one set of men may, by suc-
ceeding another set, acquire a property in all the
goods, movables, and other chattels of a corpora-
tion. 2 Bl.Comm. 430. The power of perpetual
succession is one of the peculiar properties of a
corporation. 2 Kent, Comm. 267. See Perpetual.
Civil Law and Louisiana
The fact of the transmission of the rights, es-
tate, obligations, and charges of a deceased per-
son to his heir or heirs.
The right by which the heir can take possession
of the decedent's estate. The right of the heir to
step into the place of the deceased, with respect
to the possession, control, enjoyment, administra-
tion, and settlement of all the latter's property,
rights, obligations, charges, etc.
The estate of a deceased person, comprising all
kinds of property owned or claimed by him, as
well as his debts and obligations, and considered
as a legal entity (according to the notion of the
Roman law) for certain purposes, such as collect-
ing assets and paying debts. Davenport v. Adler,
52 La.Ann. 263, 26 So. 836; Succession of Blum-
berg, 148 La. 1030, 88 So. 297, 299.
The transmission of the rights and obligations of the de-
ceased to the heirs, also the estates, rights, and charges
which a person leaves after his death, whether the prop-
erty exceeds the charges or the charges exceed the prop-
erty, or whether he has only left charges without any prop-
erty. Delaneuville v. Duhe, 114 La. 62, 38 So. 20, 22.
The succession not only includes the rights and obliga-
tions of the deceased as they exist at the time of his death,
but all that has accrued thereto since the opening of the
succession, as also the new charges to which it becomes
subject.
The coming in of another to take the property of one
who dies without disposing of it by will.
General
Artificial succession. That attribute of a cor-
poration by which, in contemplation of law, the
company itself remains always the same though
its constituent members or stockholders may
change from time to time. See Thomas v. Dak-
in, 22 Wend., N.Y., 100.
Hereditary succession. Descent or title, by de-
scent at common law; the title whereby a man on
the death of his ancestor acquires his estate by
right of representation as his heir at law. See In
re Donahue's Estate, 36 Cal. 332; Barclay v. Cam-
eron, 25 Tex. 241.
Intestate succession. The succession of an heir
at law to the property and estate of his ancestor
when the latter has died intestate, or leaving a
will which has been annulled or set aside.
Irregular succession. That which is established
by law in favor of certain persons, or of the state,
in default of heirs, either legal or instituted by
testament.
Legal succession. That which the law estab-
lishes in favor of the nearest relation of a deceas-
ed person.
Natural succession. Succession taking place be-
tween natural persons, for example, in descent
on the death of an ancestor. Thomas v. Dakin, 22
Wend., N.Y., 100.
SUCCESSION DUTY. An American law. A 'tax
placed on the gratuitous acquisition of property
passing on the death of any person by transfer
from one person to another. Wachovia Bank &
Trust Co. v. Maxwell, 221 N.C. 528, 20 S.E.2d 840,
842.
In English law. A duty, (varying from one to
ten per cent.,) payable under the statute 16 & 17
Viet. c. 51, in respect chiefly of real estate and
leaseholds, but generally in respect of all prop-
erty (not already chargeable with legacy duty)
devolving upon any one In consequence of any
death. Brown.
Succession tax. A tax imposed upon the privi-
lege of receiving property from a decedent by de-
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vise or inheritance. See Scholey v. Rew, 23 Wall.
346, 23 L.Ed. 99; State v. Switzler, 143 Mo. 287,
45 S.W. 245, 40 L.R.A. 280; Wonderly v. Tax Com-
mission of Ohio, 112 Ohio St. 233, 147 N.E. 509,
512; Shepard v. State, 184 Wis. 88, 197 N.W. 344,
345; Bankers' Trust Co. v. State, 96 Conn. 361, 114
A. 104, 106.
It is tax on right of succession to property, and not on
property itself. Reynolds v. Reynolds, 208 N.C. 578, 182
S.E. 341.
Testamentary succession. In the civil law, that
which results from the institution of an heir in
a testament executed in the form prescribed by
law.
Vacant succession. When no one claims it, or
when all the heirs are unknown, or when all the
known heirs to it have renounced it. Civ.Code La.
art. 1095. Simmons v. Saul, 11 S.Ct. 369, 138 U.S.
439, 34 L.Ed. 1054.
SUCCESSIVE. Following one after another in a
line or series. In re Buchholtz, Cust. & Pat.App.,
54 F.2d 965, 966.
SUCCESSOR. One that succeeds or follows; one
who takes the place that another has left, and sus-
tains the like part or character; one who takes the
place of another by succession. Thompson v.
North Texas Nat. Bank, Tex.Com.App., 37 S.W.2d
735, 740; Wawak Co. v. Kaiser, C.C.A.Ill., 90 F.2d
694, 697.
One who has been appointed or elected to hold
an office after the term of the present incumbent.
Term with reference to corporations, generally
means another corporation which, through amal-
gamation, consolidation, or other legal succession,
becomes invested with rights and assumes burdens
of first corporation. Schmoele v. Atlantic City R.
Co., 110 N.J.Eq. 597, 160 A. 524, 526.
Singular Successor
A term borrowed from the civil law, denoting
a person who succeeds to the rights of a former
owner in a single article of property, (as by pur-
chase,) as distinguished from a universal succes-
sor, who succeeds to all the rights and powers of
a former owner, as in the case of a bankrupt or
intestate estate.
SUCCINCT. Brief, precise, exact. Logan v.
Hite, 214 Ind. 233, 13 N.E.2d 702, 703.
SUCCURRITUR MINORI; FACILIS EST LAP-
SUS JUVENTUTIS. A minor is [to be] aided;
a mistake of youth is easy, [youth is liable to err.]
Jenk. Cent. p. 47, case 89.
SUCH. Of that kind, having particular quality or
character specified. In re Brock, 312 Pa. 92, 166
A. 785, 787. Identical with, being the same as
what has been mentioned. In re Watson's Will,
144 Misc. 213, 258 N.Y.S. 755. Alike, similar, of the
like kind; "such" represents the object as already
particularized in terms which are not mentioned,
and is a descriptive and relative word, referring
to the last antecedent. Strawberry Hill Land
Corporation v. Starbuck, 124 Va. 71, 97 S.E. 362,
366; People ex rel. Kelly v. Public Service Com-
mission, 171 App.Div. 810, 157 N.Y.S. 703, 705.
SUCKEN, SUCKEN. In Scotch law. The whole
lands astricted to a mill; that is, the lands of
which the tenants are obliged to send their grain
to that mill. Bell.
SUDDEN. Happening without previous notice or
with very brief notice; coming or occurring unex-
pectedly; unforeseen; unprepared for. Haga-
man v. Manley, 141 Kan. 647, 42 P.2d 946, 949.
SUDDEN AFFRAY. A difficulty or fight sudden-
ly resulting from the mutual agreement of two
or more parties. Cavanaugh v. Commonwealth,
172 Ky. 799, 190 S.W. 123, 126; Gibbons v. Com-
monwealth, 253 Ky. 72, 68 S.W.2d 753.
SUDDEN HEAT OF PASSION. In the common-
law definition of manslaughter, this phrase means
an access of rage or anger, suddenly arising from
a contemporary provocation. It means that the
provocation must arise at the time of the killing,
and that the passion is not the result of a former
provocation, and the act must be directly caused
by the passion arising out of the provocation at
the time of the homicide. Stell v. State, Tex.Cr.
App., 58 S.W. 75; Farrar v. State, 29 Tex.App. 250,
15 S.W. 719; Violett v. Com., 24 Ky.Law Rep. 1720,
72 S.W. 1.
SUDDEN OR VIOLENT INJURY. Injury occur-
ring unexpectedly and not naturally or in the or-
dinary course of events. State v. District Court
of St. Louis County, 138 Minn. 131, 164 N.W. 585,
L.R.A.1918C, 116.
SUDDEN PERIL RULE. Under this rule, a de-
fendant who is guilty of primary negligence is
not liable in case of sudden peril where the peril
or alarm was caused by the negligence of the op-
posite party, apprehension of peril from the stand-
point of defendant seeking to excuse his primary
negligence was reasonable, appearance of danger
was so imminent as to leave no time for delibera-
tion. White v. Munson, Tex.Civ.App., 162 S.W.2d
429, 432.
But rule cannot be invoked by one bringing
emergency on or not using due care, tb avoid it.
McClelland v. Interstate Transit Lines, 142 Neb.
439, 6 N.W.2d 384, 391.
SUDDER. In Hindu law. The best; the fore-
court of a house; the chief seat of government,
contradistinguished from "mofussil," or interior
of the country; the presidency. Wharton.
SUE. To commence or to continue legal proceed-
ings for recovery of a right; to proceed with as
an action, and follow it up to its proper termina-
tion; to gain by legal process. Lervold v. Repub-
lic Mut. Fire Ins. Co., 142 Kan. 43, 45 P.2d 839,
843, 106 A.L.R. 673. Word includes a proceeding
instituted by confession of judgment. Common-
wealth ex rel. Bradford County v. Lynch, 146 Pa.
Super. 469, 23 A.2d 77, 78.
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SUE OUT. To obtain by application; to petition
for and take out. Properly the term is applied
only to the obtaining and issuing of such process
as is only accorded upon an application first made;
but conventionally it is also used of the taking out
of process which issues of course. The term is
occasionally used of instruments other than writs.
Thus, we speak of "suing out" a pardon. See
South Missouri Lumber Co. v. Wright, 114 Mo.
326, 21 S.W. 811; Kelley v. Vincent, 8 Ohio St.
420; U. S. v. American Lumber Co., 29 C.C.A. 431,
85 F. 830.
SUERTE. In Spanish law. A small lot of
ground. Particularly, such a lot within the limits
of a city or town used for cultivation or planting
as a garden, vineyard or orchard. Building lots
in towns and cities are called "solares." Hart v.
Burnett, 15 Cal. 554.
SUFFER. To allow, to admit, or to permit.
Gregory v. Marks, C.C.I1l., Fed.Cas.No.5,802; 10
Fed.Cas. 1194, 1198; Osborne v. Winter, 133 Cal.
App. 664, 24 P.2d 892. It includes knowledge of
what is to be done under sufferance. First Nat.
Bank & Trust Co. of Port Chester v. New York
Title Ins. Co., 171 Misc. 854, 12 N.Y.S.2d 703, 709.
Also to have the feeling or sensation that arises
from the action of something painful, distressing
or the like; to feel or endure pain; to endure or
undergo without sinking; to support; to bear up
under; to be affected by; to sustain; to experi-
ence; to feel pain, physical or mental. The cus-
tomary use of the word indicates some experience
of conscious pain. New York Life Ins. Co. v. Cal-
houn, C.C.A.Mo., 97 F.2d 896, 898.
To suffer an act to be done or a condition to exist is to
permit or consent to it; to approve of it, and not to hinder
it. It implies knowledge, a willingness of the mind and
responsible control or ability to prevent. Wilspn v. Nel-
son, 183 U.S. 191, 22 S.Ct. 74, 46 L.Ed. 147; Selleck v. Sel-
leek, 19 Conn. 505; Gregory v. U. S., C.C.N.Y., Fed.Cas.
No.5,803; 10 Fed.Cas. 1197; In re Thomas, D.C.Pa., 103 F.
272, 274; Allison v. Commonwealth, 221 Ky. 205, 298 S.W.
680.
SUFFERANCE. Toleration; negative permission,
by not forbidding; passive consent; license im-
plied from the omission or neglect to enforce an
adverse right. See People on Inf. of Price v. Shef-
field Farms-Slawson-Decker Co., 225 N.Y. 25, 121
N.E. 474, 476.
SUFFERANCE WHARVES. In English law.
Wharves in which goods may be landed before any
duty is paid. They are appointed for the purpose
by the commissioners of the customs. 2 Steph.
Comm. 500, note.
SUFFERENTIA PACIS. Lat. A grant or suffer-
ance of peace or truce.
SUFFERING A RECOVERY. A recovery was ef-
fected by the party wishing to convey the land
suffering a fictitious action to be brought against
him by the party to whom the land was to be
conveyed, (the demandant,) and allowing the de-
mandant to recover a judgment against him for
the land in question. The vendor, or conveying
party, in thus assisting or permitting the demand-
SUFFRAGAN
ant so to recover a judgment against him, was
thence technically said to "suffer a recovery."
Brown.
SUFFICIENT. Adequate, enough, as much as
may be necessary, equal or fit for end proposed,
and that which may be necessary to accomplish an
object. Brittain v. Industrial Commission of Ohio,
95 Ohio St. 391, 115 N.E. 110; Galveston, H. & S. A.
Ry. Co. v. Enderle, Tex.Civ.App., 170 S.W. 276,
277; Commissioners of Sinking Fund of Louisville
v. Anderson, D.C.Ky., 20 F.Supp. 217, 220. Of
such quality, number, force, or value as to serve
a need or purpose. Nissen v. Miller, 44 N.M. 487,
105 P.2d 324, 326. As to sufficient "Consideration"
see that title.
SUFFICIENT CAUSE. With respect to right to
remove officers does not mean any cause which
removing officer may deem sufficient, but means
legal cause, specifically relating to and affecting
administration of office, of substantial nature di-
rectly affecting public's rights and interests, touch-
ing officer's qualifications or his performance of
duties, and showing that he is not fit or proper to
hold office. Sausbier v. Wheeler, 252 App.Div.
267, 299 N.Y.S. 466, 472; Zurich General Accident
& Liability Ins. Co. v. Kinsler, 12 Cal.2d 98, 81
P.2d 913, 915.
SUFFICIENT EVIDENCE. Adequate evidence;
such evidence, in character, weight, or amount,
as will legally justify the judicial or official action
demanded; according to circumstances, it may
be "prima facie" or "satisfactory" evidence, ac-
cording to the definitions of those terms given
above. People v. Stern, 33 Misc.Rep. 455, 68 N.
Y.S. 732; Mallery v. Young, 94 Ga. 804, 22 S.E.
142; Parker v. Overman, 18 How. 141, 15 L.Ed.
318; State v. Newton, 33 Ark. 284.
Sufficient evidence is that which is satisfactory for the
purpose; Mallery v. Young, 94 Ga. 804, 22 S.E. 142, 143.,
that amount of proof which ordinarily satisfies an unpreju-
diced mind, beyond a reasonable doubt; Cole v. McClure,
88 Ohio St. 1, 102 N.E. 264, 266. The term is not synony-
mous with "conclusive." Pensacola & A. R. Co. v. State,
5 So. 833, 835, 25 Fla. 310, 3 L.R.A. 661. But it may be
used interchangeably with the term "weight of evidence."
Waldron v. New York Cent. Ry. Co., 106 Ohio St. 371, 140
N.E. 161, 163. See, also, Satisfactory Evidence.
SUFFOCATE. To kill by stopping respiration, as
by strangling or asphyxiation. Stone v. Physi-
cians Casualty Ass'n of America, 130 Neb. 769, 266
N.W. 605, 607.
SUFFRAGAN. Bishops who in former times
were appointed to supply the place of others dur-
ing their absence on embassies or other business
were so termed. They were consecrated as other
bishops were, and were anciently called "chorepis-
copi," or "bishops of the county," in contradis-
tinction to the regular bishops of the city or see.
The practice of creating suffragan bishop;, after
having long been discontinued, was recently re-
vived; and such bishops are now permanently
"assistant" to the bishops. Brown.
A suffragan is a titular bishop ordained to aid and assist
the bishop of the diocese in his spiritual function; or one
who supplieth the place instead of the bishop, by whose
suffrage ecclesiastical causes or matters committed to him
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SUFFRAGE
are to be adjudged, acted on, or determined. Some writers
call these suffragans by the name of "subsidiary bishols."
Tomlins.
SUFFRAGE. A vote; the act of voting; the
right or privilege of casting a vote at public elec-
tions. The last is the meaning of the term in such
phrases as "the extension of the suffrage," "uni-
versal suffrage," etc. Spitzer v. Fulton, 33 Misc.
257,68 N.Y.S. 660; Coneld v. Farrell, 38 Okl. 608,
134 P. 407, 409.
Participation in the suffrage is not of right, but is
granted by the state on a consideration of what is most
for the interest of the state, Cooley, Const., 2d Ed. 752;
Spencer v. Board of Registration, 8 D.C. 169, 29 Am.Rep.
582; U. S. v. Anthony, 11 Blatchf. 200, Fed.Cas.No.14,459.
The grant of suffrage makes it a legal right until it is re-
called, and it is protected by the law as property is.
SIM RAGIUM. Lat. In Roman law. A vote.,
the right of voting in the assemblies of the peo-
ple.
Aid or influence used or promised to obtain
some honor or office; the purchase of office. Cod.
4, 3.
SUGGEST. To introduce indirectly to the thought;
to propose with diffidence or modesty; to hint; to
intimate. Sims v. Ratcliff, 62 Ind.App. 184, 110 N.
E. 122, 123.
SUGGESTIO FALSI. Lat. Suggestion or repre-
sentation of that which is false; false representa-
tion. To recite in a deed that a will was duly exe-
cuted, when it was not, is suggestio falsi; and to
conceal from the heir that the will was not duly
executed is suppressio veri. 1 P. Wms. 240, and
see Turney v. Avery, 92 N.J.Eq. 473, 113 A. 710.
SUGGESTION. A suggesting, presentation of an
idea especially indirectly, as through association
of ideas, bringing before the mind for considera-
tion, action, solution, or the like. Artificial Ice &
Cold Storage Co. v. Martin, 102 Ind.App. 74, 198
N.E. 446, 449.
It is in the nature of a hint or insinuation, and lacks the
element of probability. Facts which merely suggest do not
raise an inference of the existence of the fact suggested,
and therefore a suggestion is much less than an inference
or presumption. Lopa v. Smith, 37 Ohio App. 346, 174 N.E.
258, 259.
In practice. A statement, formally entered on
the record, of some fact or circumstance which
will materially affect the further proceedings in
the cause, or which is necessary to be brought to
the knowledge of the court in order to its right
disposition of the action, but which, for some rea-
son, cannot be pleaded. Thus, if one of the par-
ties dies after issue and before trial, his death
may be suggested on the record. C. J. Huebel Co.
v. Mackinnon, 186 Mich. 617, 152 N.W. 1098, 1100.
SUGGESTION OF ERROR. Request for rehear-
ing. White v. State, 190 Miss. 589, 195 So. 479,
482.
SUGGESTIVE INTERROGATION. A phrase
used by some writers to signify "leading question."
2 Benth. Jud. Ev. b. 3, c. 3. It is used in the French
law.
SUI GENERIS. Lat. Of its own kind or class;
e., the only one of its own kind; peculiar.
SUI IUEREDES. Lat. In the civil law. One's
own heirs; proper heirs. Inst. 2, 19, 2.
SUI JURIS. Lat. Of his own right; possessing
full social and civil rights; not under any legal
disability, or the power of another, or guardian-
ship.
Having capacity to manage one's own affairs;
not under legal disability to act for one's self.
Story, Ag. § 2.
SUICIDE. Self-destruction; the deliberate term-
ination of one's existence, while in the possession
and enjoyment of his mental faculties. See In-
surance Co. v. Moore, 34 Mich. 41; Weber v. Su-
preme Tent, 172 N.Y. 490, 65 N.E. 258, 92 Am.St.
Rep. 753; Daniels v. Railroad Co., 183 Mass. 393,
67 N.E. 424, 62 L.R.A. 751.
The term "suicide," as used in insurance policies, has
been held to mean death by one's own hand, irrespective of
mental condition. Great Southern Life Ins. Co. v. Camp-
bell, 148 Miss. 173, 114 So. 262, 263, 56 A.L.R. 681. But
other cases hold that intent is essential. Benard v. Pro-
tected Home Circle, 161 App. Div. 59, 146 N.Y.S. 232, 233;
American Nat. Ins. Co. v. Anderson, 42 Ga.App. 624, 157
S.E. 112.
SUICIDE, SANE OR INSANE. An exemption
from liability for death by "suicide, sane or in-
sane," in a life policy includes self-destruction ir-
respective of the assured's mental condition at the
time of the act. United States Fidelity & Guar-
anty Co. v. Blum, C.C.A.Wash., 258 F. 897, 899;
Power v. Modern Brotherhood of America, 98 Kan.
487, 158 P. 870, 872.
SUING AND LABORING CLAUSE. A clause in
an English policy of marine insurance, generally
in the following form: "In case of any loss or
misfortune, it shall be lawful for the assured, their
factors, servants and assigns, to sue, labor, and
travel for, in, and about the defense, safeguard,
and recovery of the" property insured, "without
prejudice to this insurance; to the charges where-
of we, the assurers, will contribute." The object
of the clause is to encourage the assured to exert
themselves in preserving the property from loss.
Sweet.
SUIT.
Old English Law
The witnesses or followers of the plaintiff. 3
Bl. Comm. 295. See Secta.
Old books mention the word in many connections which
are now disused,-at least, in the United States. Thus,
"suit" was used of following any one, or in the sense of
pursuit; as in the phrase "making fresh suit." It was
also used of a petition to the king or lord. "Suit of court"
was the attendance which a tenant owed at the court of his
lord. "Suit covenant" and "suit custom" seem to have
signified a right to one's attendance, or one's obligation
to attend, at the lord's court, founded upon a known cove-
nant, or an immemorial usage or practice of ancestors.
"Suit regal" was attendance at the sheriff's tourn or leet,
(his court.) "Suit of the king's peace" was pursuing an
offender,-one charged with breach of the peace, while
"suithold" was a tenure in consideration of certain services
to the superior lord. Abbott.
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SUM
Modern Law
A generic term, of comprehensive signification,
and applies to any proceeding by one person or
persons against another or others in a court of
justice in which the plaintiff pursues, in such
court, the remedy which the law affords him for
the redress of an injury or the enforcement of a
right, whether at law or in equity. See Kohl v.
U. S., 91 U.S. 375, 23 L.Ed. 449; Weston v. Charles-
ton, 2 Pet. 464, 7 L.Ed. 481; Syracuse Plaster Co. v.
Agostini Bros. Bldg. Corporation, 169 Misc. 564,
7 N.Y.S.2d 897. It is, however, seldom applied to
a criminal prosecution. And it is sometimes re-
stricted to the designation of a proceeding in
equity, to distinguish such proceeding from an ac-
tion at law. Patterson v. Standard Accident Ins.
Co., 178 Mich. 288, 144 N.W. 491, 492, 51 L.R.A.,
N.S., 583. For "Ancillary" suit and suit "Jn Rem"
see those titles.
General
Class suits. See Class or Representative Ac-
tion.
Suit against state. Suit in which relief against
the state is sought. Louisville & N. R. Co. v. Bos-
worth, D.C.Ky., 209 F. 380, 401.
Within rule of state immunity from suit without its con-
sent, one in which the subject matter must be an interest
of value in a material sense to the state as a distinct en-
tity. American Federation of Labor v. Mann, Tex.Civ.
App., 188 S.W.2d 276, 279, 280. And in the determination
of whether a suit is one against the state, it is not neces-
sary that the state appear on the record as a party; but,
if the state is the real party against which the relief is
sought, the suit is a "suit against the state" although nom-
inally it appears on the record as a suit against one of its
officers. McKamey v. Aikin, Tex.Civ.App., 118 S.W.2d 482,
483, 484.
Suit money. An allowance, in the nature of
temporary alimony, authorized by statute in some
states to be made to a wife on the institution of
her suit for divorce, intended to cover the reason-
able expenses of the suit and to provide her with
means for the efficient preparation and trial of
her case. See Yost v. Yost, 141 Ind. 584, 41 N.E.
11.
Suit of a civil nature. A suit for the remedy of
a private wrong, the test being whether the law
is penal in the strict and primary sense, and
whether the wrong is to the public or to the in-
dividual. City of Montgomery, Ala., v. Postal Tel-
egraph-Cable Co., D.C.Ala., 218 F. 471, 474.
Suit of court. This phrase denoted the duty of
attending the lord's court, and, in common with
fealty, was one of the incidents of a feudal hold-
ing. Brown.
Suit of the king's peace. The pursuing a man
for breach of the king's peace by treasons, insur-
rections, or trespasses. Cowell.
Suits or proceedings at law or in chancery. Suits
instituted and carried on in substantial conform-
ity with the forms and modes prescribed by the
common law or by the rules in chancery excluding
cases instituted and carried on solely in accord-
ance with statutory provisions. Lavin v. Wells
Bros. Co., 272 Ill. 609, 112 N.E. 271, 272.
Suit silver. A small sum of money paid in lieu
of attendance at the court-baron. Cowell.
SUITABLE. Fit and appropriate for the end in
view. U. S. v. American & Patterson, 9 Ct.Cust.
App. 244, 245.
SUITAS. Lat. In the civil law. The condition
or quality of a suus hceres, or proper heir. Halli-
fax, Civil Law, b. 2, c. 9, no. 11; Calvin.
SUITE. Those persons who by his authority f ol-
low or attend an ambassador or other public min-
ister.
SUITOR. A party to a suit or action in court. In
its ancient sense, "suitor" meant one who was
bound to attend the county court; also one who
formed part of the secta.
SUITORS' DEPOSIT ACCOUNT. Formerly suit-
ors in the English court of chancery derived no
income from their cash paid into court, unless it
was invested at their request and risk. Now, how-
ever, it is provided by the court of chancery
(funds) act, 1872, that all money paid into court,
and not required by the suitor to be invested, shall
be placed on deposit and shall bear interest at two
per cent. per annum for the benefit of the suitor
entitled to it. Sweet.
SUITORS' FEE FUND. A fund in the English
court of chancery into which the fees of suitors
in that court were paid, and out of which the sal-
aries of various officers of the court were defray-
ed. Wharton.
SUITORS' FUND IN CHANCERY. In England.
A fund consisting of moneys which, having been
paid into the court of chancery, are placed out
for the benefit and better security of the suitors,
including interest from the same. By St. 32 &
33 Vict. c. 91, § '4, the principal of this fund,
amounting to over £3,000,000, was transferred to
the commissioners for the reduction of the nation-
al debt. Mozley & Whitley.
SULCUS. In old English law. A small brook or
stream of water. Cowell.
SULLERY. In old English law. A plowland. 1
Inst. 5.
SUM. In English law. A summary or abstract;
a compendium; a collection. Several of the old
law treatises are called "sums." Lord Hale ap-
plies the term to summaries of statute law.. Bur-
rill.
The sense in which the term is most commonly
used is "money"; a quantity of money or cur-
rency; any amount indefinitely, a sum of money,
a small sum, or a large sum. U. S. v. Van Auken,
96 U.S. 368, 24 L.Ed. 852; Donovan v. Jenkins, 52
Mont. 124, 155 P. 972, 973.
SUM IN GROSS. See In Gross.
SUM PAYABLE. As used within Negotiable In-
struments Law is the amount for which, by the
terms of the instrument, the maker becomes lia-
ble, and which he might tender and pay in fill
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SUMAGE
satisfaction of his obligation. First Nat. Bank of
Iowa City, Iowa, v. Watson, 56 Okl. 495, 155 P.
1152.
SUMAGE. Toll for carriage on horseback. Cow-
ell.
SUMMA CARITAS EST FACERE JUSTITIAM
SINGULIS, ET OMNI TEMPORE QUANDO NEC-
ESSE FUERIT. The greatest charity is to do
justice to every one, and at any time whenever
it may be necessary. 11 Coke, 70.
SUMMA EST LEX QUIE PRO RELIGIONE FAC-
IT. That is the highest law which favors religion.
10 Mod. 117, 119; Broom, Max. 19.
SUMMA RATIO EST QUIE PRO RELIGIONE
FACIT. That consideration is strongest which
determines in favor of religion. Co. Litt. 341a;
Broom, Max. 19.
SUMMARILY. Without ceremony or delay, short
or concise. In re Gabelmann, 136 Misc. 641, 241
N.Y.S. 405, 408.
SUMMARY, n. An abridgment; brief; compen-
dium; also a short application to a court or judge,
without the formality of a full proceeding. Whart-
on.
SUMMARY, adj. Short, concise. State v. Bett-
man, 124 Ohio St. 24, 176 N.E. 664, 665. Immedi-
ate, peremptory; off-hand; without a jury; pro-
visional; statutory. The term used in connection
with legal proceedings means a short, concise,
and immediate proceeding. Vance v. Noel, 143 La.
477, 78 So. 741, 742; and trial of a "summary"
character is a trial without a jury. State v. King,
137 Tenn. 17, 191 S.W. 352, 354; City of St. Paul
v. Robinson, 129 Minn. 383, 152 N.W. 777, Ann.Cas.
1916E, 845.
Summary actions. In Scotch law. Those which
are brought into court not by summons, but by
petition, corresponding to summary proceedings
in English courts. Bell; Brown.
Summary conviction. See Conviction.
Summary jurisdiction. The jurisdiction of a
court to give a judgment or make an order itself
forthwith; e. g., to commit to prison for con-
tempt; to punish malpractice in a solicitor; or,
in the case of justices of the peace, a jurisdiction
to convict an offender themselves instead of com-
mitting him for trial by a jury. Wharton.
Summary procedure on bills of exchange. This
phrase refers to the statute 18 & 19 Vict. c. 67,
passed in 1855, for the purpose of facilitating the
remedies on bills and notes by the prevention of
frivolous or fictitious defenses. By this statute,
a defendant in an action on a bill or note, brought
within six months after it has become payable, is
prohibited from defending the action without the
leave of the court or a judge. See 2 Steph. Comm.
118, note; Lush. Pr. 1027.
Summary proceeding. See Proceeding.
SUMMARY PROCESS. See Process.
SUMMER FALLOWING. Plowing and harrow-
ing of grounds preparatory to cropping during
next season. Farmers' & Merchants' Bank of
Walla Walla v. Small, 131 Wash. 197, 229 P. 531,
533.
SUMMER-HUS SILVER. A payment to the lords
of the wood on the Wealds of Kent, who used to
visit those places in summer, when their under-
tenants were bound to prepare little summer-
houses for their reception, or else pay a composi-
tion in money. Cowell.
SUMMING UP. On the trial of an action by a
jury, a recapitulation of the evidence adduced, in
order to draw the attention of the jury to the sal-
ient points. The counsel for each party has the
right of summing up his evidence, if he has ad-
duced any, and the judge sometimes sums up the
whole in his charge to the jury. Smith, Act. 157.
State v. Ezzard, 40 S.C. 312, 18 S.E. 1025.
SUMMON. In practice. To serve a summons; to
cite a defendant to appear in court to answer a
suit which has been begun against him; to notify
the defendant that an action has been instituted
against him, and that he is required to answer
to it at a time and place named.
SUMMONEAS. L. Lat. In old practice. A writ
of summons; a writ by which a party was sum-
moned to appear in court.
SUMMONERS. Petty officers, who cite and warn
persons to appear in any court. Fleta, lib. 9.
SUMMONITIO. L. Lat. In old English prac-
tice. A summoning or summons; a writ by which
a party was summoned to appear in court, of
which there were various kinds. Spelman.
SUMMONITIONES AUT CITATIONES NULLIE
LICEANT FIERI INTRA PALATIUM REGIS. 3
Inst. 141. Let no summonses or citations be serv-
ed within the king's palace.
SUMMONITORES SCACCARII. Officers who as-
sisted in collecting the revenues by citing the de-
faulters therein into the court of exchequer.
SUMMONS.
Practice
A writ, directed to the sheriff or other proper
officer, requiring him to notify the person named
that an action has been commenced against him in
the court whence the writ issues, and that he is
required to appear, on a day named, and answer
the complaint in such action. See Whitney v.
Blackburn, 17 Or. 564, 21 P. 874, 11 Am.St.Rep.
857; Horton v. Railway Co., 26 Mo.App. 358.
Under code procedure a summons is not process, but is a
notice to defendant that an action against him has been
commenced and that judgment will be taken against him
if he fails to answer the complaint. Flanary v. Kusha, 143
Minn. 308, 173 N.W. 652; United States v. Van Dusen, C.C.
A.Minn., 78 F.2d 121, 124.
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Scotch Law
A writ passing under the royal signet, signed by
a writer to the signet, and containing the grounds
and conclusions of the action, with the warrant
for citing the defender. This writ corresponds to
the writ of summons in English procedure. Bell;
Paters. Comp.
SUMMONS AD RESPONDENDUM. Process is-
suing in a civil case at law notifying defendant
therein named that he must appear on day desig-
nated and thereupon make answer to plaintiff's
statement of his cause of action. Walker Fertil-
izer Co. v. Race, 123 Fla. 84, 166 So. 283, 285, 105
A.L.R. 341.
SUMMONS AND ORDER. In English practice.
The summons is the application to a common-law
judge at chambers in reference to a pending ac-
tion, and upon it the judge or master makes the
order. Mozley & Whitley.
SUMMONS AND SEVERANCE. The proper
name of what is distinguished in the books by the
name of "summons and severance" is "severance;"
for the summons is only a process which must, in
certain cases, issue before judgment of severance
can be given; while severance is a judgment by
which one or more of parties joined in action is
enabled to proceed without the other or others.
Jacob.
SUMMUM JUS. Lat. Strict right; extreme right.
The extremity or rigor of the law. See "Apex
Juris."
SUMMUM JUS, SUISLMA INJURIA; SUMMA
LEX, SUMMA CRUX. Extreme law (rigor of
law) is the greatest injury; strict law is great
punishment. Hob. 125. That is, insistence upon
the full measure of a man's strict legal rights
may work the greatest injury to others, unless
equity can aid.
SUMMER. See Sompnour.
SUMPTUARY LAWS. Laws made for the pur-
pose of restraining luxury or extravagance, par-
ticularly against inordinate expenditures in the
matter of apparel, food, furniture, etc.
SUNDAY. The first day of the week is designated
by this name; also as the "Lord's Day," and as
the "Sabbath." State v. Reade, 98 N.J.L. 596, 121
A. 288, 289.
For Work of Necessity see "Necessity."
SUNDAY SCHOOL. School for religious instruc-
tion. Dougherty v. Kentucky Alcoholic Beverage
Control Board, 279 Ky. 262, 130 S.W.2d 756, 759;
Stubbs v. Texas Liquor Control Board, Tex.Civ.
App., 166 S.W.2d 178, 180.
SUPERCARGO
SUNSTROKE. An inflammatory disease of the
brain, brought on by exposure to the too intense
heat of the sun's rays, or to overheated air. Math-
er v. London Guarantee & Accident Co., 125 Minn.
186, 145 N.W. 963; Continental Casualty Co. v.
Clark, 70 Okl. 187, 173 P. 453, L.R.A. 1918F, 1007.
Though "sunstroke," strictly speaking, is a disease,
suddenness of its approach and its catastrophic
nature have caused it to be classified as an acci-
dent. Lurye v. Stern Bros. Department Store, 275
N.Y. 182, 9 N.E.2d 828, 829.
SUO NOMINE. Lat. In his own name.
SUO PERICULO. Lat. At his own peril or risk.
SUPELLEX. Lat. In Roman law. Household
furniture. Dig. 33, 10.
SUPER. Lat. Upon; above; over; higher, as in
quantity, quality and degree; more than; as in
super-essential, super-natural or super-standard.
Fricke v. Braden, 55 Cal.App.2d 266, 130 P.2d 727,
729.
SUPER ALTUM MARE. On the high sea. Hob.
212; 2 Ld. Raym. 1453.
SUPER FIDEM CHARTARUM, MORTUIS TES-
TIBUS, ERIT AD PATRIAM DE NECESSITATE
RECURRENDUM. Co. Litt. 6. The truth of
charters is necessarily to be referred to a jury,
when the witnesses are dead.
SUPER PRZEROGATIVA REGIS. A writ which
formerly lay against the king's tenant's widow
for marrying without the royal license. Fitzh.
Nat. Brev. 174.
SUPER STATUTO. A writ, upon the statute 1
Edw. III. c. 12, that lay against the king's tenant
holding in chief, who aliened the king's land
without his license.
SUPER STATUTO DE ARTICULIS CLERI. A
writ which lay against a sheriff or other officer
who distrained in the king's highway, or on lands
anciently belonging to the church.
SUPER STATUTO FACTO POUR SENESCHAL
ET MARSHAL DE ROY, ETC. A writ which
lay against a steward or marshal for holding
plea in his court, or for trespass or contracts not
made or arising within the king's household.
Wharton.
SUPER STATUTO VERSUS SERVANTES ET
LABORATORES. A writ which lay against him
who kept any servants who had left the service of
another contrary to law.
SUPER VISUM CORPORIS. Upon view of the
body. When an inquest is held over a body found
dead, it must be super visum corporis.
SUNDRIES. Miscellaneous or various items
which may be considered together, without being
separately specified or identified. People v. Bern-
stein, 237 App.Div. 270, 261 N.Y.S. 381.
SUNDRY. Separate, divers, or various. Ham-
mond v. State, 173 Ark. 674, 293 S.W. 714, 717.
SUPERARE RATIONES. In old Scotch law. To
have a balance of account. due to one; to have
one's expenses exceed the receipts.
SUPERCARGO. In maritime law. A person spe-
cially employed by the owner of a cargo to take
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SUPERFICIARIUS
charge of and sell to the best advantage merchan-
dise which has been shipped, and to purchase re-
turning cargoes and to receive freight, as he may
be authorized.
SUPERFICIARIUS. Lat. In the civil law. He
who has built upon the soil of another, which he
has hired for a number of years or forever, yield-
ing a yearly rent. Dig. 43, 18, 1. In other words,
a tenant on ground-rent.
SUPERFICIES. Lat. In the civil law. The alien-
ation by the owner of the surface of the soil of
all rights necessary for building on the surface,
a yearly rent being generally reserved; also a
building or erection. Sandars' Just. Inst. 5th Ed.
133.
SUPERFICIES SOLO CEDIT. Whatever is at-
tached to the land forms part of it. Gaius 2, 73.
SUPERFLUA NON NOCENT. Superfluities do
not prejudice. Jenk. Cent. 184. Surplusage does
not vitiate.
SUPERFLUOUS LANDS. In English law, lands
acquired by a railway company under its statu-
tory powers, and not required for the purposes of
its undertaking. The company is bound within a
certain time to sell such lands, and, if it does not,
they vest in and become the property of the own-
ers of the adjoining lands. Sweet.
SUPERFCETATION. In medical jurisprudence.
The conception of a second embryo during the
gestation of the first, or the conception of a child
by a woman already pregnant with another, dur-
ing the time of such pregnancy.
SUPERINDUCTIO. Lat. In the civil law. A
species of obliteration. Dig. 28, 4, 1, 1.
SUPERINSTITUTION. The institution of one in
an office to which another has been previously
instituted; as where A. is admitted and instituted
to a benefice upon one title, and B. is admitted and
instituted on the title or presentment of another.
2 Cro. Eliz. 463.
A church being full by institution, if a second
institution is granted to the same church this is
a superinstitution. Wharton.
SUPERINTEND. To have charge and direction
of; to direct the course and oversee the details;
to regulate with authority; to manage; to over-
see with the power of direction; to take care of
with authority. Burrell Engineering & Construc-
tion Co. v. Grisier, 111 Tex. 477, 240 S.W. 899, 900;
State v. First State Bank of Jud, 52 N.D. 231, 202
N.W. 391, 402.
SUPERINTENDENT. One who superintends or
has the oversight and charge of something with
the power of direction; a manager. Indiana
Fibre Products Co. v. Cyclone Mfg. Co., 81 Ind.
App. 682, 143 N.E. 169, 171.
SUPERINTENDENT OF SCHOOLS. Officer hav-
ing the highest authority under the board of edu-
cation. Eelkema v. Board of Education of City
of Duluth, 215 Minn. 590, 11 N.W.2d 76, 77.
SUPERINTENDENT REGISTRAR. In English
law. An officer who superintends the registers of
births, deaths, and marriages. There is one in
every poor-law union in England and Wales.
SUPERIOR, n. One who has a right to com-
mand; one who holds a superior rank.
SUPERIOR, adj. Higher; belonging to a higher
grade. People ex rel. McCoy v. McCahey, 296 Ill.
App. 310, 15 N.E.2d 988, 993. More elevated in
rank or office. Possessing larger power. Entitled
to command, influence, or control over another.
In estates, some are superior to others. An estate en-
titled to a servitude or easement over another estate is
called the "superior" or "dominant," and the other, the
"inferior" or "servient," estate. 1 Bouv.Inst. no. 161Z
In the feudal law, until the statute quia emptores pre-
cluded subinfeudations, (q. v.,) the tenant who granted
part of his estate to be held of and from himself as lord
was called a "superior."
Superior and vassal. In Scotch law. A feudal
relation corresponding with the English "lord and
tenant." Bell.
Superior courts. In English law. The courts
of the highest and most extensive jurisdiction,
viz., the court of chancery and the three courts
of common law, i. e., the King's bench, the com-
mon pleas, and the exchequer, which sit at West-
minster, were commonly thus denominated. But
these courts are now united in the supreme court
of judicature. In American law. Courts of gen-
eral or extensive jurisdiction, as distinguished
from the inferior courts. As the official style of a
tribunal, the term "superior court" bears a dif-
ferent meaning in different states. In some it is a
court of intermediate jurisdiction between the
trial courts and the chief appellate court; else-
where it is the designation of the ordinary nisi
prius courts.
Superior fellow servant. A term introduced in-
to the law of negligence, and meaning one high-
er in authority than another, and whose com-
mands and directions his inferiors are bound to
respect and obey, though engaged at the same
manual work. Illinois Cent. R. Co. v. Coleman,
22 Ky.Law Rep. 878, 59 S.W. 14; Knutter v. Tele-
phone Co., 67 N.J.L. 646, 52 A. 565, 58 L.R.A. 808.
Superior force. In the law of bailments and
of negligence, an uncontrollable and irresistible
force, of human agency, producing results which
the person in question could not avoid; equiva-
lent to the Latin phrase "vis major." See Via.
SUPERIORITY. In Scotch law. The dominium
directum of lands, without the profit. 1 Forb.
Inst. pt. 2, p. 97.
SUPER—JURARE. Over-swearing. A term an-
ciently used when a criminal endeavored to ex-
cuse himself by his own oath or the oath of one or
two witnesses, and the crime objected against
him was so plain and notorious that he was con-
victed on the oaths of many more witnesses.
Wharton.
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SUPPLEMENT
SUPERNUMERARH. Lat. In Roman law. Ad-
vocates who were not registered or enrolled and
did not belong to the college of advocates. They
were not attached to any local jurisdiction. See
Statuti.
SUPERONERATIO. Lat. Surcharging a com-
mon; e., putting in beasts of a number or kind
other than the right of common allows.
SUPERONERATIONE PASTURE. A judicial
writ that lay against him who was impleaded in
the county court for the surcharge of a common
with his cattle, in a case where he was former-
ly impleaded for it in the same court, and the
cause was removed into one of the superior courts.
SUPERPLUSAGIUM. In old English law. Over-
plus; surplus; residue or balance. Bract. fol.
301; Spelman.
SUPERSEDE. Obliterate, set aside, annul, re-
place, make void, inefficacious or useless, repeal.
City of Los Angeles v. Gurdane, C.C.A.Cal., 59 F.
2d 161, 163. To set aside, render unnecessary,
suspend, or stay. Taylor v. New York Telephone
Co., 97 Misc. 160, 160 N.Y.S. 865; Dick v. King,
73 Mont. 456, 236 P. 1093, 1095.
SUPERSEDEAS. In Practice. The name of a
writ containing a command to stay the proceed-
ings at law.
A suspension of the power of a trial court to
issue an execution on judgment appealed from, or,
if writ of execution has issued, it is a prohibi-
tion emanating from court of appeal against exe-
cution of writ. Stewart v. Hurt, 9 Cal.2d 39, 68
P.2d 726, 727.
An auxiliary process designed to supersede enforcement
of trial court's judgment brought up for review, and its
application is limited to the judgment from which an ap-
peal is taken. Mascot Pictures Corporation v. Municipal
Court of City of Los Angeles, 3 Cal.App.2d 559, 40 P.2d
272.
Originally it was a writ directed to an officer, command-
ing him to desist from enforcing the execution of another
writ which he was about to execute, or which might come
in his hands. In modern times the term is often used
synonymously with a "stay of proceedings," and is em-
ployed to designate the effect of an act or proceeding which
of itself suspends the enforcement of a judgment. Dulin
v. Coal Co., 98 Cal. 306, 33 P. 123.
SUPERSEDING CAUSE. An act of a third per-
son or other force which by its intervention pre-
vents the actor from being liable for harm to an-
other which his antecedent negligence is a sub-
stantial factor in bringing about. Superior Oil
Co. v. Richmond, 172 Miss. 407, 159 So. 850, 852.
Shuster v. Vecchi, 203 Minn. 76, 279 N.W. 841, 844.
SUPERSTITIOUS USE. In English law. When
lands, tenements, rents, goods, or chattels are
given, secured, or appointed for and towards the
maintenance of a priest or chaplain to say mass,
for the maintenance of a priest or other man to
pray for the soul of any dead man in such a
church or elsewhere, to have and maintain per-
petual obits, lamps, torches, etc., to be used at
certain times to help to save the souls of men
out of purgatory,—in such cases the king, by force
of several statutes, is authorized to direct and
appoint all such uses to such purposes as are truly
charitable. Bac. Abr. "Charitable Uses." The
doctrine has no recognition in this country; Ap-
peal of Seibert, 18 Wkly. Notes Cas., Pa., 276;
and a bequest to support a Catholic priest, and
perhaps other uses void in England, would not be
considered as superstitious uses. Harrison v.
Brophy, 59 Kan. 1, 51 P. 883, 40 L.R.A. 721.
SUPERVENING CAUSE. A new effective cause
which, operating independently of anything else,
becomes proximate cause of accident. Chesa-
peake & 0. Ry. Co. v. Crum, 140 Va. 333, 125 S.E.
301, 304.
SUPERVENING NEGLIGENCE. That situations
may come within the doctrine of last clear chance
or supervening negligence, four conditions must
coexist, to wit: (1) That the injured party has
already come into a position of peril; (2) that the
injuring party then or thereafter becomes, or in
the exercise of ordinary prudence ought to have
become, aware, not only of that fact, but also that
the party in peril either reasonably cannot es-
cape from it or apparently will not avail himself
of opportunities open to him for doing so; (3)
that the injuring party subsequently has the op-
portunity by the exercise of reasonable care to
save the other from harm; and (4) that he fails
to exercise such care. Emmons v. New York and
S. R. Co., 108 Conn. 133, 142 A. 676, 677.
See Last Clear Chance.
SUPERVISE. To have general oversight over, to
superintend or to inspect. State v. Manning, .220
Iowa 525, 259 N.W. 213.
SUPERVISION. An act of occupation of super-
vising; inspection. Kemp v. Stanley, 204 La. 110,
15 So.2d 1, 11.
SUPERVISOR. A surveyor or overseer; a high-
way officer. Also, in some states, the chief offi-
cer of a town; one of a board of county officers.
In a broad sense, one having authority over
others, to superintend and direct. Cafferty v.
Southern Tier Pub. Co., 226 N.Y. 87, 123 N.E. 76,
77.
SUPERVISORS OF ELECTION. Persons appoint-
ed and commissioned by the United States circuit
judges to supervise the registration of voters and
the holding of elections for representatives in
congress under Rev. St. §§ 2011-2031; repealed by
the act of Feb. 8, 1894, 28 Stat. 36.
SUPERVISORY CONTROL. Control exercised by
courts to compel inferior tribunals to act within
their jurisdiction, to prohibit them from acting
outside their jurisdiction, and to reverse their ex-
trajurisdictional acts. State v. Superior Court of
Dane County, 170 Wis. 385, 175 N.W. 927, 928.
SUPPLEMENT, LETTERS OF. In Scotch prac-
tice. A process by which a party not residing
within the jurisdiction of an inferior court may
be cited to appear before it. Bell.
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SUPPLEMENTAL
SUPPLEMENTAL. That which is added to a
thing to complete it. State v. Day, 189 Ind. 243,
123 N.E. 402, 403; People ex rel. Astor Trust Co.
v. State Tax Commission, 174 App.Div. 320, 160
N.Y.S. 854, 858.
SUPPLEMENTAL ACT. That which supplies a
deficiency, adds to or completes, or extends that
which is already in existence without changing
or modifying the original; Act designed to im-
prove an existing statute by adding something
thereto without changing the original text. Swan-
son v. State, 132 'Neb. 82, 271 N.W. 264, 268.
SUPPLEMENTAL AFFIDAVIT. An affidavit
made in addition to a previous one, in order to
supply some deficiency in it. Callan v. Lukens, 89
Pa. 136.
SUPPLEMENTAL ANSWER. One which was
filed in chancery for the purpose of correcting,
adding to, and explaining an answer already filed.
Smith, Ch. Pr. 334. French v. Edwards, 9 Fed.
Cas. 780; Yeatman v. Patrician, 144 Wash. 241,
257 P. 622, 624.
SUPPLEMENTAL BILL. In equity pleading. A
bill filed in addition to an original bill, in order
to supply some defect in its original frame or
structure which cannot be supplied by amend-
ment. Story, Eq. Pl. §§ 332-338; Bloxham v. Rail-
road Co., 39 Fla. 243, 22 So. 697; Thompson v.
Srhenectady Railroad Co., C.C.N.Y., 119 F. 634;
Bartee v. Matthews, 212 Ala. 667, 103 So. 874, 876;
Pantaleo v. Colt's Patent Fire Arms Mfg. Co.,
D.C.N.Y., 13 F.Supp. 989, 990. Also for purpose of
bringing into controversy matter occurring after
original bill was filed. Snellings v. Builders' Sup-
ply Co., 228 Ala. 47, 152 So. 459, 461.
SUPPLEMENTAL BILL IN NATURE OF BILL
OF REVIEW. Employed to invoke jurisdiction
of court of chancery to recall one of its adjudica-
tions made while some fact existed which, if be-
fore court, would have prevented rendition of final
decree, and which, without negligence of party
presenting it, was not earlier presented to chan-
cellor. Brown v. Oehler, 114 Fla. 57, 152 So. 862.
SUPPLEMENTAL CLAIM. A further claim
which was filed when further relief was sought
after the bringing of a claim. Smith, Ch. Pr. 655.
SUPPLEMENTAL COMPLAINT. Under the
codes of practice obtaining in many of the states,
a complaint filed in an action to bring to the no-
tice of the court and the opposite party matters
occurring after the commencement of action and
which may affect the rights asserted. Pouder v.
Tate, 132 Ind. 327, 30 N.E. 880; Plumer v. Mc-
Donald Lumber Co., 74 Wis. 137, 42 N.W. 250;
Title and Trust Co. v. U. S. Fidelity and Guaranty
Co., 138 Or. 467, 7 P.2d 805, 812.
It is distinguished from an "amended complaint," in
that an "amended complaint" is one which corrects merely
faults and errors of a pleading. Pantaleo v. Colt's Patent
Fire Arms Mfg. Co., D.C.N.Y., 13 F.Supp. 989, 990.
SUPPLEMENTAL PLEA 19ING. One consisting
of facts arising since filing of the original, State
v. Patten, 209 Ind. 482, 199 N.E. 577, 579; or of
which pleader at time of serving of original plead-
ing had no notice. Fisher v. Bullock, 204 App.
Div. 523, 198 N.Y.S. 538, 540.
SUPPLEMENTARY. Added as a supplement;
additional; being, or serving as, a supplement.
Swanson v. State, 132 Neb. 82, 271 N.W. 264, 268.
SUPPLEMENTARY PROCEEDINGS. Proceed-
ings supplementary to an execution, directed to
the discovery of the debtor's property and its ap-
plication to the debt for which the execution is
issued. They are purely statutory, they are in the
nature of a creditor's bill for the collection of a
judgment or tax, and are proceedings in person-
am and not in rem. In re Maltbie, 119 N.E. 389,
391, 223 N.Y. 227; Walker v. Staley, 89 Colo. 292,
1 P.2d 924, 925.
SUPPLETORY OATH. See Oath.
SUPPLIANT. The actor in, or party preferring,
a petition of right.
SUPPLICATIO. Lat. In the civil law. A peti-
tion for pardon of a first offense; also a petition
for reversal of judgment; also equivalent to
"duplicatio," which corresponds to the common
law rejoinder. Calvin.
SUPPLICAVIT. In English law. A writ issuing
out of the king's bench or chancery for taking
sureties of the peace. It is commonly directed to
the justices of the peace, when they are averse to
acting in the affair in their judicial capacity. 4
Bl.Comm. 253.
SUPPLICIUM. Lat. In the civil law. Punish-
ment; corporal punishment for crime. Death
was called "ultimum supplicium," the last or ex-
treme penalty.
SUPPLIES. In English law. In parliamentary
proceedings the sums of money which are an-
nually voted by the house of commons for the
maintenance of the crown and the various public
services. Jacob; Brown.
Means of provision or relief; stores; available
aggregate of things needed or demanded in
amount sufficient for a given use or purpose;
accumulated stores reserved for distribution; suf-
ficiency for use or need; a quantity of something
supplied or on hand. Northern Pac. Ry. Co. v.
Sanders County, 66 Mont. 608, 214 P. 596, 599.
In connection with building contracts, things
other than labor, which are consumed in, but do
not become a physical part of, the structure and
is distinguished from the word "materials," which
are things becoming a physical part of the struc-
ture. Hurley-Mason Co. v. American Bonding
Co., 79 Wash. 564, 140 P. 575, 576, L.R.A.1915B,
1131.
SUPPLY.. To furnish with what is wanted; avail-
able aggregate of things needed or demanded;
anything yielded or afforded to meet a want; and
the act of furnishing with what is wanted. Clay-
ton v. Bridgeport Mach. Co., Tex.Civ.App., 33 S.W.
2d 787, 789.
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SUPREME
SUPPLY, COMMISSIONERS OF. Persons ap-
pointed to levy the land-tax in Scotland, and to
cause a valuation roll to be annually made up,
and to perform other duties in their respective
counties. Bell.
SUPPLY, COMMITTEE OF. In English law. All
bills which relate to the public income or expen-
diture must originate with the house of commons,
and all bills authorizing expenditure of the pub-
lic money are based upon resolutions moved in a
committee of supply, which is always a commit-
tee of the whole house. Wharton.
SUPPORT, v. Furnishing funds or means for
maintenance; to maintain; to provide for; to
enable to continue; to carry on. State v. Hinkle,
161 Wash. 652, 297 P. 1071, 1075. To provide a
means of livelihood. Board of Com'rs of Logan
County v. State, 122 Okl. 268, 254 P. 710, 711. To
vindicate, to maintain, to defend, to uphold with
aid or countenance. U. S. v. Schulze, D.C.Cal.,
253 F. 377, 379.
To support a rule or order is to argue in answer to the
arguments of the party who has shown cause against a rule
or order nisi.
SUPPORT, n. That which furnishes a livelihood;
a source or means of living; subsistence, susten-
ance, or living. Great Western Power Co. of Cali-
fornia v. Industrial Accident Commission of Cali-
fornia, 191 Cal. 424, 218 P. 1009, 1014.
In a broad sense the term includes all such
means of living as would enable one to live in
the degree of comfort suitable and becoming to
his station of life. Benjamin F. Shaw Co. v. Pal-
matory, 7 Boyce, Del., 197, 105 A. 417, 419. For
"Family," see that title.
It is said to include anything requisite to housing, feed-
ing, clothing, health, proper recreation, vacation, traveling
expense, or other proper cognate purposes, In re Vander-
bilt's Estate, 223 N.Y.S. 314, 316, 129 Misc. 605; and proper
care, nursing, and medical attendance in sickness, and
suitable burial at death. McKnight v. McKnight, 212 Mich.
318, 180 N.W. 437, 442.
Support also signifies the right to have one's ground sup-
ported so that it will not cave in, when an adjoining owner
makes an excavation. This support is of two kinds, lateral
and subjacent. Lateral support is the right of land to be
supported by the land which lies next to it. Subjacent
support is the right of land to be supported by the land
which lies under it.
SUPPOSITION. A conjecture based upon possi-
bility or probability that a thing could or may
have occurred, without proof that it did occur.
Mitchell's Adm'x v. Harlan Central Coal Co., 263
Ky. 702, 93 S.W.2d 347, 348; Louisville and N. R.
Co. v. Mann's Adm'r, 227 Ky. 399, 13 S.W.2d 257,
258.
SUPPRESS. To put a stop to a thing actually
existing; to prohibit, put down, to prevent, sub-
due, or end by force. State v. Mustachia, 152 La.
821, 94 So. 408, 409; State ex rel. Hamilton V.
Martin, 173
,
Wash. 249, 23 P.2d 1.
SUPPRESSIO VERI. Lat. Suppression or con-
cealment of the truth. It is a rule of equity, as
well as of law, that a suppressio y en is equiva-
lent to a suggestio falsi; and where either the
suppression of the truth or the suggestion of
what is false can be proved, in a fact material to
the contract, the party injured may have, relief
against the contract. Fleming v. Slocum, 18
Johns., N.Y., 405, 9 Am.Dec. 224; Turney v. Avery,
92 N.J.Eq. 473, 113 A. 710.
SUPPRESSIO VERI, EXPRESSIO FALSI. Sup-
pression of the truth is [equivalent to] the expres-
sion of what is false. Addington v. Allen, 11
Wend., N.Y., 374, 417.
SUPPRESSIO VERI, SUGGESTIO FALSI. Sup-
pression of the truth is [equivalent to] the sug-
gestion of what is false. Paul v. Hadley, 23 Barb.
N.Y. 521, 525.
SUPRA: Lat. Above; upon. This word occur-
ring by itself in a book refers the reader to a pre-
vious part of the book, like "ante;" it is also the
initial word of several Latin phrases.
SUPRA PROTEST. See Protest.
SUPRA-RIPARIAN. Upper riparian; higher up
the stream. This term is applied to the estate,
rights, or duties of a riparian proprietor whose
land is situated at a point nearer the source of the
stream than the estate with which it is compared.
SUPREMA POTESTAS SEIPSAM DISSOLVERE
POTEST. Supreme power can dissolve itself.
Bac. Max.
SUPREMACY. The state of being supreme, or
in the highest station of power; paramount au-
thority; sovereignty; sovereign power.
Act of Supremacy
The English statute 1 Eliz. c. 1, whereby the
supremacy and autonomy of the crown in spiri-
tual or ecclesiastical matters was declared and
established.
Oath of Supremacy
An oath to uphold the supreme power of the
kingdom of England in the person of the reign-
ing sovereign.
SUPREME. Superior to all other things.
SUPREME COURT. A court of high powers and
extensive jurisdiction, existing in most of the
states. In some it is the official style of the chief
appellate court or court of last resort. In others
(such as New York) the supreme court is a court
of general original jurisdiction, possessing also
(in New York) some appellate jurisdiction, but not
the court of last resort.
Supreme court of errors. In American law. An
appellate tribunal, and the court of last resort, in
the state of Connecticut.
Supreme court of the United States. The court
of last resort in the federal judicial system. It
is vested by the constitution with original juris-
diction in all cases affecting ambassadors, public
ministers, and consuls, and those in which a state
is a party, and appellate jurisdiction over all other
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cases within the Judicial power of the United
States, both as to law and fact, with such excep-
tions and under such regulations as congress may
make. Its appellate powers extend to the sub-
ordinate federal courts, and also (in certain cas-
es) to the supreme courts of the several states.
The court is composed of a chief justice and eight
associate justices.
Supreme judicial court. In American law. An
appellate tribunal, and the court of last resort, in
the states of Maine and Massachusetts.
SUPREME COURT OF JUDICATURE. The
court formed by the English judicature act, 1873,
(as modified by the judicature act, 1875, the appel-
late jurisdiction act, 1876, and the judicature acts
of 1877, 1879, and 1881,) in substitution for the
various superior courts of law, equity, admiralty,
probate, and divorce, existing when the act was
passed, including the court of appeal in chancery
and bankruptcy, and the exchequer chamber. It
consists of two permanent divisions, viz., a court
of original jurisdiction, called the "high court of
justice," and a court of appellate jurisdiction,
called the "court of appeal." Its title of "supreme"
is now a misnomer, as the superior appellate ju-
risdiction of the house of lords and privy council,
which was originally intended . to be transferred to
it, has been allowed to remain. Sweet.
High Court of Justice
That branch of the English supreme court of
judicature (q. v.) which exercises (1) the original
jurisdiction formerly exercised by the court of
chancery, the courts of queen's bench, common
pleas, and exchequer, the courts of probate, di-
vorce, and admiralty, the court of common pleas
at Lancaster, the court of pleas at Durham, and
the courts of tile judges or commissioners of as-
size; and (2) the appellate jurisdiction of such
of those courts as heard appeals from inferior
courts. Judicature act, 1873, § 16.
SUPREME POWER. The highest authority in a
state, all other powers in it being inferior there-
to. State ex rel. Hartley v. Clausen, 146 Wash.
588, 264 P. 403, 405.
SUPREMUS. Lat. Last; the last.
SUPREMUS EST QUEM NEMO SEQUITUR. He
is last whom no one follows. Dig. 50, 16, 92.
SUR. Fr. On; upon; over. In the titles of real
actions "sur" was used to point out what the writ
was founded upon. Thus, a real action brought by
the owner of a reversion or seigniory, in certain
cases where his tenant repudiated his tenure, was
called "a writ of right sur disclaimer." So, a writ
of entry sur disseisin was a real action to recover
the possession of land from a disseisor. Sweet.
SUR CUI ANTE DIVORTIUM. See Cui Ante Di-
vortium.
SUR CUI IN VITA. A writ that lay for the heir
of a woman whose husband had aliened her land
in fee, and she had omitted to bring the writ of
cui in vita for the recovery thereof; in which
case her heir might have this writ against the ten-
ant after her decease. Cowell. See Cui in Vita.
SUR DISCLAIMER. A writ in the nature of a
writ of right brought by the lord against a ten-
ant who had disclaimed his tenure, to recover the
land.
SUR MORTGAGE. Upon a mortgage. In some
states the method of enforcing the security of a
mortgage, upon default, is by a writ of "scire
facias sur mortgage," which requires the defend-
ant (mortgagor) to show cause why it should not
be foreclosed.
SURCHARGE, n. An overcharge; an exaction,
impost, or incumbrance beyond what is just and
right, or beyond one's authority or power. "Sur-
charge" may mean a second or further mortgage.
Wharton.
SURCHARGE, v. To put more cattle upon a
common than the herbage will sustain or than the
party has a right to do. 3 Bl. Comm. 237.
Equity Practice
To show that a particular item, in favor of the
party surcharging, ought to have been included,
but was not, in an account which is alleged to be
settled or complete. To prove the omission of an
item from an account which is before the court
as complete, which should be inserted to the cred-
it of the party surcharging. Story, Eq. Jur. §
525; 2 Ves. 565; Perkins v. Hart, 24 U.S. 237, 11
Wheat. 237, 6 L.Ed. 463; Dempsey v. McGinnis,
203 Mo.App. 494, 219 S.W. 148, 150.
General
Second surcharge. In English law. The sur-
charge of a common a second time, by the same
defendant against whom the common was before
admeasured, and for which the writ of second sur-
charge was given by the statute of Westminster,
2. 3 Bl. Comm. 239.
Surcharge and falsify. This phrase, as used in
the courts of chancery, denotes the liberty which
these courts will occasionally grant to a plaintiff,
who disputes an account which the defendant al-
leges to be settled, to scrutinize particular items
therein without opening the entire account. The
showing an item for which credit ought to have
been given, but was not, is to surcharge the ac-
count; the proving an item to have been inserted
wrongly is to falsify the account. Brown. See
Philips v. Belden, 2 Edw. Ch., N.Y., 23; Rehill v.
McTague, 114 Pa. 82, 7 A. 224, 60 Am.Rep. 341;
Shores-Mueller Co. v. Bell, 21 Ga.App. 194, 94 S.E.
83, 84.
SURDUS. Lat. In the civil law. Deaf; a deaf
person. Inst. 2, 12, 3. Surdus et mutus, a deaf
and dumb person.
SURENCHERE. In French law. A party desir-
ous of repurchasing property at auction before
the court, can, by offering one-tenth or one-sixth.
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according to the case, in addition to the price real-
ized at the sale, oblige the property to be put up
once more at auction. This bid upon a bid is
called a "surenchare." Arg. Fr. Mere. Law, 575.
SURETY. One who undertakes to pay money or
to do any other act in event that his principal
fails therein. In re Brock, 312 Pa. 92, 166 A. 778,
781. One bound with his principal for the pay-
ment of a sum of money or for the performance of
some duty or promise and who is entitled to be
indemnified by some one who ought to have paid
or performed if payment or performance be en-
forced against him. Anderson v. Trueman, 100
Fla. 727, 130 So. 12, 13. Everyone who incurs a
liability in person or estate, for the benefit of
another, without sharing in the consideration,
stands in the position of a "surety," whatever
may be the form of his obligation. Howell v.
War Finance Corporation, C.C.A.Ariz., 71 F.2d
237, 243.
A surety and guarantor have this in common, that they
are both bound for another person; yet there are points
of difference between them. A surety is usually bound
with his principal by the same instrument, executed at the
same time and on the same consideration. He is an orig-
inal promisor and debtor from the beginning, and is held
ordinarily to every known default of his principal. On tile
other hand, the contract of guarantor is his own separate
undertaking, in which the principal does not join. It is
usually entered into before or after that of the principal,
and is often founded on a separate consideration from that
supporting the contract of the principal. The original
contract of the principal is not the guarantor's contract,
and the guarantor is not bound to take notice of its non-
performance. The surety joins in the same promise as his
principal and is primarily liable; the guarantor makes a
separate and individual promise and is only secondarily
liable. His liability is contingent on the default of his
principal, and he only becomes absolutely liable when such
default takes place and he is notified thereof. Georgia
Casualty Co. v. Dixie Trust & Security Co., 23 Ga.App. 447,
98 S.E. 414, 416; Stifel Estate Co. v. Cella, 220 Mo.App.
657, 291 S.W. 515, 518; Ricketson v. Lizotte, 90 Vt. 386, 98
A. 801. "Surety" and "guarantor" are both answerable
for debt, default, or miscarriage of another, but liability
of guarantor is, strictly speaking, secondary and collateral,
while that of surety is original, primary, and direct. In
case of suretyship there is but one contract, and surety is
bound by the same agreement which binds his principal,
while in case of guaranty there are two contracts, and
guarantor is bound by independent undertaking. Howell
v. Commissioner of Internal Revenue, C.C.A.8, 69 F.2d 447,
450.
A surety is an insurer of the debt or obligation; a guar-
antor is an insurer of the solvency of the principal debtor
or of his ability to pay. McClain v. Georgian Co., 17 Ga.
App. 648, 87 S.E. 1090; Bishop v. Currie-McGraw Co., 133
Miss. 517, 97 So. 886, 889.
SURETY COMPANY. A company, usually incor-
porated, whose business is to assume the respon-
sibility of a surety on the bonds of officers, trus-
tees, executors, guardians, etc., in consideration of
a fee proportioned to the amount of the security
required. See State ex rel. Travelers' Indemnity
Co. v. Knott, 114 Fla. 820, 153 So. 304.
SURETY INSURANCE. This phrase is generally
used as synonymous with "guaranty insurance."
People v. Potts, 264 Ill. 522, 106 N.E. 524, 528.
SURETY OF THE PEACE. A species of preven-
tive justice, and consists in obliging those persons
whom there is a probable ground to suspect of
future misbehavior, to stipulate with, and to give
full assurance to, the public that such offense as is
apprehended shall not take place, by finding pledg-
es or securities for keeping the peace, or for their
good behavior. Brown. See Hyde v. Greuch, 62
Md. 582.
SURETYSHIP, CONTRACT OF. Contract where-
by one party engages to be answerable for debt,
default, or miscarriage of another and arises when
one is liable to pay debt or discharge obligation,
and party is entitled to indemnity from person
who should have made the payment in the first
instance before surety was so compelled. Brad-
ley v. Bentley, 163 So. 351, 231 Ala. 28. A contract
whereby one person engages to be answerable for
the debt, default, or miscarriage of another. Pitm..
Princ. & Sur. 1, 2; Scandinavian-American Bank
of Fargo v. Westby, 41 N.D. 276, 172 N.W. 665, 670..
An accessory promise by which a person binds
himself for another already bound, and agrees
with the creditor to satisfy the obligation, if the
debtor does not. Hope v. Board, 43 La.Ann. 738, 9
So. 754. A lending of credit to aid a principal
having insufficient credit of his own; the one ex-
pected to pay, having the primary obligation, be-
ing the "principal," and the one bound to pay, if
the principal does not, being the "surety." Roll-
ings v. Gunter, 211 Ala. 671, 101 So. 446, 448.
See Surety.
In contracts of "indemnity" against liability, the en-
gagement is to indemnify another against liability on some
obligation which he has incurred, or is about to incur, to
a third person, and is not, as in "suretyship," a promise
to one to whom another is answerable; in the former
there is direct privity between the promisor and promisee
and no debt owing by the third person to the promisee and
the promisee has no remedy against the third person,
whereas in the latter both principal and surety are bound
to answer to the promisee. McManus v. Tralles, Mo.App.,
253 S.W. 406, 409.
SURFACE. This term, when used in law, is sel-
dom, if ever, limited to mere geometrical. super-
ficies, Clinchfield Coal Corporation v. Compton,
148 Va. 437, 139 S.E. 308, 312, 55 A.L.R. 1376; al-
though when used without any qualifying phrase
in a deed, it ordinarily signifies only the super-
ficial part of land, Drummond v. White Oak Fuel
Co., 104 W.Va. 368, 140 S.E. 57, 58, 56 A.L.R. 303.
And when employed in connection with mining, it
usually means that part of the earth or geologic
section lying over the minerals in question, unless
the contract or conveyance otherwise defines it.
Marquette Cement Mining Co. v. Oglesby Coal Co.,
D.C.I11., 253 F. 107, 111. Thus, where the surface
is granted to one and the underlying coal to an-
other, the "surface" includes the soil and waters
which lie above and are superincumbent on the
coal. Clinchfield Coal Corporation v. Compton,
148 Va. 437, 139 S.E. 308, 312, 55 A.L.R. 1376. Nev-
ertheless, a conveyance of the "surface," except
the oil and gas rights in the land, may be deemed,
under certain circumstances, to constitute a con-
veyance of all the land (including coal deposits),
except only the oil and gas rights specifically re-
served. Ramage v. South Penn Oil Co., 94 W.Va.
81, 118 S.E. 162, 171, 31 A.L.R. 1509.
The term "surface," when used as the subject of a con-
veyance, is not a definite one capable of a definition of
universal application, but is susceptible of limitation ac-
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cording to the intention of the parties using it; and in
determining its meaning, regard may be had, not only to
the language of the deed in which it occurs, but, also to
the situation of the parties, the business in which they
were engaged, and to the substance of the transaction.
Ramage v. South Penn Oil Co., 94 W.Va. 81, 118 S.E. 162,
171, 31 A.L.R. 1509.
SURFACE WATERS. See Water.
SURGEON. One whose profession or occupation
is to cure diseases or injuries of the body by man-
ual operation; one who practices surgery, Web-
ster; which is therapy of a distinctly operative
kind, such as cutting operations, the reduction and
putting up of fractures and dislocations and sim-
ilar manual forms of treatment; Napier v. Greenz-
weig, C.C.A.N.Y., 256 F. 196, 197.
Popularly, one possessing particular knowledge
and skill to correct and relieve some unnatural
condition of the human body. Maupin v. Southern
Surety Co., 205 Mo.App. 81, 220 S.W. 20, 21. One
whose occupation is to cure local injuries or dis-
orders, whether by manual operation, or by med-
ication and constitutional treatment. Stewart v.
Raab, 55 Minn. 20, 56 N.W. 256; Nelson v. State
Board of Health, 108 Ky. 769, 57 S.W. 501, 50 L.R.
A. 383; Surgery.
SURGERY. The art or practice of healing by
manual operation; that branch of medical science
which treats of mechanical or operative measures
for healing diseases, deformities or injuries. State
v. Eustace, 117 Kan. 746, 233 P. 109, 110; Mary-
land Casualty Co. v. McCallum, 200 Ala. 154, 75 So.
902, 904. Therapy of a distinctly operative kind,
such as cutting operations, the reduction and put-
ting up of fractures and dislocations and similar
manual forms of treatment. Napier v. Greenz-
.weig, C.C.A.N.Y., 256 F. 196, 197. As used in stat-
utes, the term does not include osteopathy. Mo.
R.S.A. § 10042. Le Grand v. Security Benefit
Ass'n, 210 Mo.App. 700, 240 S.W. 852, 853. State v.
Eustace, 117 Kan. 746, 233 P. 109, 110.
Greek words signifying the hand and work. Originally,
it was part of the profession of barbers, but later was
taken up by physicians and now is recognized as that
branch of medical science, and more specifically, that
branch of medical science which treats of mechanical or
operative measures for healing diseases, deformities, or in-
juries. State ex rel. Beck v. Gleason, 148 Kan. 1, 79 P.2d
911.
The practice of medicine, in contradistinction to the
practice of surgery, denotes the treatment of disease by
the administration of drugs or other sanative substances.
There cannot be a •complete separation between the prac-
tice of medicine and surgery; the principles of both are
the same throughout, and no one is qualified to practice
either who does not properly understand the fundamental
principles of both.
SURGICAL OPERATION. An act or series of
acts performed on a patient's body by a surgeon
to produce a cure. Hartford Live Stock Ins. Co.
v. McMillen, C.C.A.Ohio, 9 F.2d 961, 962.
SURMISE. Formerly where a defendant pleaded
a local custom, for instance, a custom of the city
of London, it was necessary for him to "surmise,"
that is, to suggest that such custom should be cer-
tified to the court by the mouth of the recorder,
and without such a surmise the issue was to be
tried by the country as other issues of fact are. 1
Burrows, 251; Vin. Abr. 246.
Something offered to a court to move it to grant
a prohibition, audita querela, or other writ grant-
able thereon. Jacob.
In ecclesiastical law. An allegation in a libel.
A collateral surmise is a surmise of some fact
not appearing in the libel. Phillim. Ecc. Law,
1445.
SURNAME. The family name; the name over
*and above the Christian name. The part of a
name which is not given in baptism; the name of
a person which is derived from the common name
of his parents; In re Faith's Application, 22 N.J.
Misc. 412, 39 A.2d 638, 640. The last name; the
name common to all members of a family. A pa-
tronymic. Riley v. Litchfield, 168 Iowa 187, 150
N.W. 81, 83, Ann.Cas.1917B, 172.
SURPLICE FEES. In English ecclesiastical law.
Fees payable on ministerial offices of the church;
such as baptisms, funerals, marriages, etc.
SURPLUS. That which remains of a fund appro-
priated for a particular purpose; the remainder
of a thing; the overplus; the residue. Smith v.
Cotting, 231 Mass. 42, 120 N.E. 177, 181; People's
F. Ins. Co. v. Parker, 35 N.J.L. 577; Towery v.
McGaw, 22 Ky.Law.Rep. 155, 56 S.W. 727; Appeal
of Coates, 2 Pa. 137; 18 Ves. 466.
The "surplus" of a corporation may mean either the net
assets of the corporation in excess of all liabilities includ-
ing capital stock, Winkelman v. General Motors Corpora-
tion, D.C.N.Y., 44 F.Supp. 960, 996; or what remains after
making provisions Tor all liabilities of every kind, except
capital stock. Insurance Co. of North America v. McCoach,
C.C.A.Pa., 224 F. 657, 658. The term is also defined as the
residue of assets after defraying liabilities, Douglas v.
Edwards, C.C.A.N.Y., 298 F. 229, 237; Cochrane v. Inter-
state Packing Co., 139 Minn. 452, 167 N.W. 111, 113; the
excess of net assets over the face value of the stock. Sex-
ton v. C. L. Percival Co., 189 Iowa 586, 177 N.W. 83, 86;
the excess of gross assets over the outstanding capital
stock, without deducting debts or liabilities; State v.
State Tax Commission ex rel. Marquette Hotel Inv. Co.,
282 Mo. 213, 221 S.W. 721, 722; and as the accumulation
of moneys or property in excess of the par value of the
stock. Small v. Sullivan, 245 N.Y. 343, 157 N.E. 261, 263.
There is a sharp distinction between the "surplus," as of
a bank, and undivided profits. Surplus, like the capital
stock, constitutes the working capital of the bank and is,
in addition, a fund for the protection of the depositors.
First Nat. Bank v. Moon, 102 Kan. 334, 170 P. 33, 34, L.R.
A.1918C, 986. The "undivided profits" constitute a tempo-
rary fund changing in size from day to day and carried
only until dividend periods when it is distributed to the
stockholders or transferred to the permanent surplus. It
is the fund from which the expenses and losses of the bank
are paid. Sarles v. Scandinavian American Bank, 33 N.D.
40, 156 N.W. 556, 557. Willcuts v. Milton Dairy Co., 48
S.Ct. 71, 72, 275 U.S. 215, 72 L.Ed. 247; State ex rel. Payne
v. Exchange Bank of Natchitoches, 147 La. 25, 84 So. 481,
482.
As to surplus "Earnings," "Profits," and "Wa-
ter," see those titles.
SURPLUSAGE. Extraneous, impertinent, super-
fluous, or unnecessary matter. In re Wolcott's Es-
tate, 54 Utah, 165; 180 P. 169, 170, 4 A.L.R. 727.
Accounts
A greater disbursement than the charge of the
accountant amounts unto. In another sense, the
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remainder or overplus of money left. Jacob. A
balance over. 1 Lew. 219.
Pleading
Allegations of matter wholly foreign and im-
pertinent to the cause. All matter beyond the
circumstances necessary to constitute the action.
5 East 275; Allaire v. Ouland, 2 Johns. Cas. (N.Y.)
52; Adams v. Capital State Bank, 74 Miss. 307, 20
So. 881; Bradley v. Reynolds, 61 Conn. 271, 23 A.
928; State v. Kavanaugh, 203 La. 1, 13 So.2d 366,
371. Any allegation without which the pleading
would yet be adequate. Mathews v. U. S., C.C.A.
Neb., 15 F.2d 139, 142; State v. Williams, 94 Vt.
423, 111 A. 701, 708; People v. Osborne, 278 Ill.
104, 115 N.E. 890, 891.
SURPLUSAGIUM NON NOCET. Surplusage does
no harm. 3 Bouv. Inst. no. 2949; Broom, Max. 627.
SURPRISE. Act of taking unawares; sudden con-
fusion or perplexity. Davis v. Steuben School Tp.,
19 Ind.App. 694, 50 N.E. 1. In its legal acceptation,
denotes an unforeseen disappointment against
which ordinary prudence would not have afforded
protection. Patrick v. Boonville Gas Light Co., 17
Mo.App. 462, 463, 465.
Equity Practice.
The act by which a party who is entering into a
contract is taken unawares, by which sudden con-
fusion or perplexity is created, which renders it
proper that a court of equity should relieve the
party so surprised. 2 Brown, Ch. 150.
The situation in which a party is placed with-
out any default of his own, which will be injur-
ious to his interests. Rawle v. Skipwith, 8 Mart.
N. S., La., 407.
Anything which happens without the agency or fault of
the party affected by it, tending to disturb and confuse
the judgment, or to mislead him, of which the opposite
party takes an undue advantage, is in equity a surprise,
and one species of fraud for which relief is granted. Gid-
lonsen v. Union Depot R. Co., 129 Mo. 392, 31 S.W. 800;
Heath v. Scott, 65 Cal. 548, 4 Pac. 557; Zimmerer v. Fre-
mont Nat. Bank, 59 Neb. 661, 81 N.W. 849; Thompson v.
Connell, 31 Or. 231, 48 P. 467, 65 Am.St.Rep. 818.
There does not seem anything technical or peculiar in
the word "surprise," as used in courts of equity. Where a
court of equity relieves on the ground of surprise, it does
so upon the ground that the party has been taken un-
awares, and that he has acted without due deliberation,
and under confused and sudden impressions. 1 Story, Eq.
Jur. 120, note. But Jeremy, Eq.Jur. 366, 383, note, seems
to think that the word surprise is a technical expression,
and nearly synonymous with fraud. It is sometimes used
in this sense when it is deemed presumptive of, or ap-
proaching to, fraud. 1 Fonbl.Eq. 123; 3 Ch.Cas. 56, 74,
103, 114.
Law
As a ground for a new trial, that situation in
which a party is unexpectedly placed without de-
fault on his part, which will work injury to his in-
terests. State v. Price, 100 W.Va. 699, 131 S.E.
710, 711. He must show himself to have been dili-
gent at every stage of the proceedings. Hender-
son v. Hazlett, 75 W.Va. 255, 83 S.E. 907, 908. And
that the event was one which ordinary prudence
could not have guarded against; Cupples v. Zu-
pan. 35 Idaho, 458, 207 P. 328, 329; .Jennings v.
American President Lines, 61 Cal.App.2d 417, 143
P.2d 349, 356.
A situation, status, or result produced, having a
substantive basis of fact and reason, from which
the court may justly deduce, as a legal conclusion,
that the party will suffer a judicial wrong if not
relieved from his mistake. Levy v. Caledonian
Ins. Co., D.C.Cal., 226 F. 336, 337.
The general rule is that when a party or his counsel is
"taken by surprise," in a material point or circumstance
which could not have been anticipated, and when want of
skill, care, or attention cannot be justly imputed, and in-
justice has been done, a new trial should be granted. Hill.
New Trials, 521.
SURREBUTTER. In pleading. The plaintiff's an-
swer of fact to the defendant's rebutter. Steph.
Pl. 59. It is governed by the same rules as the
replication. See 6 Com. Dig. 185; 7 id. 389.
SURREJOINDER. In pleading. The plaintiff's
answer of fact to the defendant's rejoinder. Steph.
Pl. 59. It is governed in every respect by the same
rules as the replication. Steph. PL 77; 7 Com.
Dig. 389.
SURRENDER. To give back; yield; render up;
restore; and in law the giving up of an estate to
the person who has it in reversion or remainder, so
as to merge it in the larger estate; the giving up
of a lease before its expiration; yielding up a
tenancy in a copyhold estate to the lord of the
manor for a specified purpose; a deed by which
surrender is made; the giving up by a bankrupt of
his property to his creditors or their assignees;
also, his due appearance in the bankruptcy court
for examination as formerly required by the bank-
ruptcy acts. In re Emlen's Estate, 333 Pa. 238,
4 A.2d 143, 145; Nolander v. Burns, 48 Minn. 13,
50 N.W. 1016.
A yielding up of an estate for life or years to him who
has an immediate estate in reversion or remainder, where-
in the estate for life or years may drown by mutual agree-
ment between them. Roberts Inv. Co. v. Hardie Mfg. Co.,
142 Or. 179, 19 P.2d 429, 431; Kimberlin v. Hicks, 150 Kan.
449, 94 P.2d 335, 339.
"Surrender" is contractual act and occurs only through
consent of both parties. Motch's Adm'r v. Portner, 237
Ky. 25, 34 S.W.2d 744, 745.
Surrender differs from "abandonment," as applied to
leased premises, inasmuch as the latter is simply an act
on the part of the lessee alone; but to show a surrender,
a mutual agreement between lessor and lessee that the
lease is terminated must be clearly proved. Noble v.
Sturm, 210 Mich. 462, 178 N.W. 99, 106.
A surrender is of a nature directly opposite to a release;
for, as the latter operates by the greater estate descending
upon the less, the former is the falling of a less estate
into a greater, by deed. Shepp.Touchst. 300.
SURRENDER BY BAIL. The act, by bail or sure-
ties in a recognizance, of giving up their principal
again into custody, in their own discharge. 1
Burrill, Pr. 394.
SURRENDER BY OPERATION OF LAW. This
phrase is properly applied to cases where the ten-
ant for life or years has been a party to some act
the validity of which he is by law afterwards es-
topped from disputing, and which would not be
valid if his particular estate continued to exist.
Ledsinger v. Burke, 113 Ga. 74, 38 S.E. 313; Brown
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v. Cairns, 107 Iowa, 727, 77 N.W. 478. An implied
surrender occurs when an estate incompatible
with the existing estate is accepted, or the lessee
takes a new lease of the same lands. Livingston
v. Potts, 16 Johns., N.Y., 28; 1 B. & Ald. 50. See
Beall v. White, 94 U.S. 389, 24 L.Ed. 173; Martin
v. Stearns, 52 Iowa, 347, 3 N.W. 92.
The rule of law as now settled by recently adjudicated
cases is that any acts which are equivalent to an agree-
ment on the part of the tenant to abandon, and on the part
of the landlord to resume the possession of the demised
premises, amount to a "surrender by operation of law."
Carlton Chambers Co. v. Trask, 261 Mass. 264, 158 N.E.
786, 788; 1375-83 Broadway Corporation v. Filler, 267
N.Y.S. 779, 149 Misc. 474. The rule may be safely said to
be that a surrender is created by operation of law, when
the parties to a lease do some act so inconsistent with the
subsisting relation of landlord and tenant as to imply that
they have both agreed to consider the surrender as made.
Flannagan v. Dickerson, 103 Okl. 206, 229 P. 552, 553;
Hodgkiss v. Dayton-Brower Co., 156 N.Y.S. 907, 908, 93
Misc. 109; Triest & Co. v. Goldstone, 173 Cal. 240, 159 P.
715, 716.
SURRENDER OF CHARTER. A corporation cre-
ated by charter may give up or "surrender" its
charter to the people, unless the charter was grant-
ed under a statute, imposing indefeasible duties
on the bodies to which it applies. Grant, Corp.
45.
SURRENDER OF COPYHOLD. The mode of con-
veying or transferring copyhold property from
one person to another is by means of a surrend-
er, which consists in the yielding up of the estate
by the tenant into the hands of the lord for such
purposes as are expressed in the surrender. The
process in most manors is for the tenant to come
to the steward, either in court or out of court, or
else to two customary tenants of the same manor,
provided there be a custom to warrant it, and
there, by delivering up a rod, a glove, or other
symbol, as the custom directs, to resign into the
hands of the lord, by the hands and acceptance of
his steward, or of the said two tenants, all his in-
terest and title to the estate, in trust, to be again
granted out by the lord to such persons and for
such uses as are named in the surrender, and as
the custom of the manor will warrant. Brown.
SURRENDER OF CRIMINALS. The act by
which the public authorities deliver a person ac-
cused of a crime, and who is found in their juris-
diction, to the authorities within whose jurisdic-
tion it is alleged the crime has been committed.
SURRENDER OF A PREFERENCE. In bank-
ruptcy practice. The surrender to the assignee
in bankruptcy, by a preferred creditor, of anything
he may have received under his preference and
any advantage it gives him, which he must do be-
fore he can share in the dividend. In re Richter's
Estate, 1 Dill. 544, Fed.Cas.No.11,803. The word
as generally defined may denote either compelled
or voluntary action. Keppel v. Bank, 197 U.S.
356, 25 S.Ct. 443, 49 L.Ed. 790. In. Bankruptcy Act
1898, § 57g (11 U.S.C.A. § 93 (g), providing that
creditors must surrender preferences before hav-
ing claims allowed, it is unqualified and generic,
and hence embraces both meanings. Keppel v.
Bank, supra.
SURRENDER TO USES OF WILL. Formerly a
copyhold interest would not pass by will unless it
had been surrendered to the use of the will. By
St. 55 Geo. III. c. 192, this is no longer necessary.
1 Steph. Comm. 639; Mozley & Whitley.
SURRENDEREE. The person to whom a sur-
render is made.
SURRENDEROR. One who makes a surrender.
One who yields up a copyhold estate for the pur-
pose of conveying it.
SURREPTITIOUS. Stealthily or fraudulently
done, taken away, or introduced.
SURROGATE. In American law. The name giv-
en in some of the states to the judge or judicial
officer who has the administration of probate mat-
ters, guardianships, etc. See Malone v. Sts. Peter
& Paul's Church, 172 N.Y. 269, 64 N.E. 961. In oth-
er states he is called judge of probate, register,
judge of the orphans' court, etc. He is ordinar-
ily a county officer, with a local jurisdiction lim-
ited to his county.
In English law. One that is substituted or ap-
pointed in the room of another, as by a bishop,
chancellor, judge, etc.; especially an officer ap-
pointed to dispense licenses to marry without
banns. 2 Steph. Comm. 247.
SURROGATE'S COURT. In the United States. A
state tribunal, with similar jurisdiction to the
court of ordinary, court of probate, etc., relating
to matters of probate, etc. 2 Kent, Comm. 409,
note b. And see Robinson v. Fair, 9 S.Ct. 30, 128
U.S. 53, 32 L.Ed. 415; In re Hawley, 104 N.Y. 250,
10 N.E. 352.
SURROUND. To inclose on all sides; to encom-
pass. In re Creveling, Cust. & Pat.App., 61 F.2d
862, 863.
SURROUNDING CIRCUMSTANCES. Which
may permit inference of culpability on part of
defendant under res ipsa loquitur rule refers, not
'co circumstances directly tending to show lack of
care, but only to mere neutral circumstances of
control and management by defendant, which
may, when explained, appear to be entirely con-
sistent with due care. Hepp v. Quickel Auto &
Supply Co., 37 N.M. 525, 25 P.2d 197.
SURSISE. L. Fr. In old English law. Neglect;
omission; default; cessation.
SURSUM REDDERE. Lat. In old conveyancing.
To render up; to surrender.
SURSUMREDDITIO. Lat. A surrender.
SURVEILLANCE. Oversight, superintendence,
supervision. People v. Howard, 120 Cal.App. 45,
8 P.2d 176, 179.
SURVEY, v. Of land, to ascertain corners, bound-
aries, divisions, with distances and directions, and
not necessarily to compute areas included within
defined boundaries. Keer v. Fee, 179 Iowa, 1097,
161 N.W. 545, 547.
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SURVEY, n. The process by which a parcel of
land is measured and its contents ascertained;
also a statement of the result of such survey, with
the courses and distances and the quantity of the
land. Corporation of Frederick Scholes v. Theo-
dore Ficke Warehouses, 213 App.Div. 259, 210
N.Y.S. 341, 343. The land included in field notes.
Cross v. Wilkinson, Tex.Civ.App., 187 S.W. 345,
346.
Insurance
An examination. A plan and description of the
present existing state, condition, and mode of use
of the property. Macatawa Transp. Co. v. Fire-
men's Fund Ins. Co., 179 Mich. 443, 146 N.W. 396,
398.
In insurance law, the term has acquired a gen-
eral meaning, inclusive of what is commonly call-
ed the "application," which contains the questions
propounded on behalf of the company, and the
answers of the assured. Albion Lead Works v.
Williamsburg City F. Ins. Co., C.C.Mass., 2 F. 484;
May v. Buckeye Ins. Co., 25 Wis. 291, 3 Am.Rep.
76.
Sales
An examination.
General
Survey of a vessel. A statement of its present
condition. Chicago S. S. Lines v. U. S. Lloyds,
C.C.A.I11., 12 F.2d 733, 737. A public document,
looked to both by underwriters and owners, as af-
fording the means of ascertaining, at the time and
place, the state and condition of the ship and other
property at hazard. Potter v. Ocean Ins, Co., 3
Sumn. 43, 19 Fed.Cas.1,173; Hathaway v. Sun
Mut. Ins. Co., 8 Bosw., N.Y., 68.
SURVEYOR. One who makes surveys, deter-
mines area of. portion of earth's surface, length
and direction of boundary lines, and contour of
surface. Severance v. Ball, 93 Cal.App, 56, 268 P.
1068, 1070.
SURVEYOR OF HIGHWAYS. In English law. A
person elected by the inhabitants of a parish, in
vestry assembled, to survey the highways therein.
He must possess certain qualifications in point of
property; and, when elected, he is compellable, un-
less he can show some grounds of exemption, to
take upon himself the office. Mozley & Whitley.
SURVEYOR OF THE PORT. A revenue officer of
the United States appointed for each of the prin-
cipal ports of entry, whose duties chiefly concern
the importations at his station and the determina-
tion of their amount and valuation. Rev.St.U.S. §
2627 (19 U.S.C.A. § 40).
SURVIVAL STATUTES. Statutory provision for
the survival, after death of the injured person, of
certain causes of action for injury to the person
whether death results from the injury or from
some other cause. The cause of action which sur-
vives is for the wrong to the injured person. In
re Daniel's Estate, 294 N.W. 465, 208 Minn. 420.
See, also, Wrongful Death Statutes.
SURVIVE. To continue to live or exist beyond
the life, or existence of; to continue to live or
exist beyond (a specified period or event); to live
through in spite of; live on after passing through;
to remain alive; exist in force or operation be-
yond any period specified. Thompson v. New Or-
leans Ry. & Light Co., 145 La. 805, 83 So. 19, 20.
SURVIVING. Remaining alive. State ex rel.
Baker v. Bird, 253 Mo. 569, 162 S.W. 119, 123, Ann.
Cas. 1915C, 353.
SURVIVOR. One who survives another; one who
outlives another; one who lives beyond some hap-
pening; one of two or more persons who lives
after the death of the other or others. Baker v.
Baker, 182 Ala. 194, 62 So. 284, 286.
The word "survivor," however, in connection with the
power of one of two trustees to act, is used not only with
reference to a condition arising where one of such trustees
dies, but also as indicating a trustee who continues to
administer the trust after his cotrustee is disqualified, has
been removed, renounces, or refuses to act. Busch v.
Schuttler, 216 Ill. App. 212, 217.
SURVIVORSHIP. The living of one of two or
more persons after the death of the other or oth-
ers.
Survivorship is where a person becomes entitled to prop-
erty by reason of his having survived another person who
had an interest in it. In re Conklin's Estate, 20 N.Y.S.2d
59, 62, 259 App.Div. 432; United States v. Jacobs, III. &
N. Y., 306 U.S. 363, 59 S.Ct. 551, 555, 83 L.Ed. 763.
SUS. PER COLL. An abbreviation of "suspenda-
tur per collum," let him be hanged by the neck.
Words formerly used in England in signing judg-
ment against a prisoner who was to be executed;
being written by the judge in the margin of the
sheriff's calendar or list, opposite the prisoner's
name. 4 BL Comm. 403. Written, also, "sus' per
coil'."
SUSCEPTIBLE. Capable. U. S. v. Sischo, D.C.
Wash., 262 F. 1001, 1005. And see Bensdorff v.
Uihlein, 132 Tenn, 193, 177 S.W. 481, 482, 2 A.L.R.
1364,
SUSPECT. To have a slight or even vague idea
concerning;—not necessarily involving knowledge
or belief or likelihood. Cheek v. Missouri, K. &
T. Ry. Co., 89 Kan. 247, 131 P. 617, 624.
"Suspect" with reference to probable cause as grounds
for arrest without warrant is ordinarily used in place of
the word believe. U. S. v. Rembert, D.C.Tex., 284 F. 996,
1001. But to "suspect and believe" that a person, claiming
to have been falsely imprisoned by a deputy sheriff, is a
felon, is not the legal equivalent of belief on probable
cause. Hill v. Wyrosdick, 216 Ala. 235, 113 So. 49, 50.
SUSPEND. To interrupt; to cause to cease for
a time; to postpone; to stay, delay, or hinder; to
discontinue temporarily, but with an expectation
or purpose of resumption. To forbid a public of-
ficer, attorney, employee, or ecclesiastical person
from performing his duties or exercising his func-
tions for a more or less definite interval of time.
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Insurance Co. v. Aiken, 82 Va. 428; Stack v.
O'Hara, 98 Pa. 232; Reeside v. U. S., 8 Wall. 42,
19 L.Ed. 318; U. S. v. Felder, D.C.N.Y., 13 F.2d
527, 528; Bishop v. Bacon, 130 Pa.Super. 240, 196
A. 918, 921.
To postpone, as a judicial sentence. State v. An-
derson, 43 S.D. 630, 181 N.W. 839, 840; People ex
rel. Holton v. Hunt, 217 App.Div. 428, 216 N.Y.S.
765, 768, To stay, as a decree;—not synonymous
with vacate. Stewart v. Oneal, C.C.A.Ohio, 237 F.
897, 903.
To cause a temporary cessation, as of work by
an employee; to lay off;—not synonymous with
remove. Thomas v. City of Chicago, 194 Ill.App.
526, 529.
Also, sometimes, to discontinue or dispense with
(permanently) ; to remove permanently from of-
fice; to discharge (an employee) permanently.
Phelps v. Connellee, Tex.Civ.App., 278 S.W. 939,
941. See Suspension.
SUSPENDER. In Scotch law. He in whose favor
a suspension is made.
SUSPENSE. When a rent, profit a prendre, and
the like, are, in consequence of the unity of pos-
session of the rent, etc., of the land out of which
they issue, not in esse for a time, they are said to
be in suspense, tunc dormiunt; but they may be
revived or awakened. Co. Litt. 313a.
SUSPENSION. A temporary stop, a temporary
delay, interruption, or cessation. Hood ex rel.
North. Carolina Bank & Trust Co. v. Clark, 211
N.C. 693, 191 S.E. 732, 733.
A temporary stop of a right, of a law, and the like.
Thus, we speak of a suspension of the writ of habeas cor-
pus, of a statute, of the power of alienating an estate, of a
person in office, etc..
A temporary' cutting off or debarring one, as
from the privileges of an institution or society.
John B. Stetson University v. Hunt, 88 Fla. 510,
102 So. 637, 639.
An ad interim stoppage or arrest of official pow-
er and pay.;—not synonymous with "removal,"
which terminates wholly the incumbency of the
office or employment.. State v. Board of Police
& Fire Com'rs of La Crosse, 159 Wis. 295, 150 N.W.
493, 494. Temporary withdrawal or cessation
from public work as distinguished from perma-
nent severance accomplished by removal, Bois v.
City of Fall River, 257 Mass. 471, 154 N.E. 270;
"removal" being, however, the broader term,
which may on occasion include suspension. State
v. Medler, 19 N.M. 252, 142 P. 376, 379.
Ecclesiastical Law
An ecclesiastical censure, by which a spiritual
person is either interdicted the exercise of his ec-
clesiastical function or hindered from receiving
the profits of his benefice. It may be partial or
total, for a limited time, or forever, when it is
called "deprivation" or "amotion." Ayl. Par. 501.
General
Pleas in suspension Were those which showed
some matter of temporary incapacity to proceed
with the action or suit. Steph. Pl. 45.
Suspension of a right. The act by which a party
Is deprived of the exercise of his right for a time.
A temporary stop of a right, a partial extinguish..
ment for a time, as contrasted with a complete ex-
tinguishment, where the right is absolutely dead.
In re Muser's Estate, 122 Misc. 164, 203 N.Y.S. 619,
621. Suspension of a right in an estate is a tem-
porary or partial withholding of it from use or
exercise. It differs from extinguishment, because
a suspended right is susceptible of being revived,
which is not the case where the right was extin-
guished. Bac. Abr. Extinguishment (A).
Suspension of a statute. A temporary stop.
Chicago, R. I. & P. Ry. Co. v. Holliday, 45 Okl.
536, 145 P. 786, 793. The suspension of a statute
for a limited time operates so as to prevent its
operation for the time; but it has not the effect
of a repeal. Brown v. Barry, 3 U.S. 365, 3 Dall.
365, 1 L.Ed. 638.
Suspension of arms. An agreement between
belligerents, made for a short time or for a par-
ticular place, to cease hostilities between them.
See, also, Armistice.
Suspension of business. These words in a stat-
ute contemplate an interruption of ordinary busi-
ness operations, evidenced by some objective fea-
tures; an interruption of the ordinary course of
business, other than a mere failure to meet matur-
ing obligations. Hoover Steel Ball Co. v. Schafer
Ball Bearings Co., 89 N.J.Eq. 433, 105 A. 500, 501..
SUSPENSIVE CONDITION. See Condition.
SUSPENSORY CONDITION. See Condition.
SUSPICION. The act of suspecting, or the state-
of being suspected; imagination, generally of
something ill; distrust; mistrust; doubt. Mc-
Calla v. State, 66 Ga. 348. The apprehension of
something without proof or upon slight evidence.
State v. Hall, Mo.App., 285 S.W. 1009, 1011.
Suspicion implies a belief or opinion based upon facts
or circumstances which do not amount to proof. Burton
v. McNeill, 196 S. C. 250, 13 S.E.2d 10, 11, 133 A.L.R. 603.
SUSPICIOUS CHARACTER. In the criminal laws
of some of the states, a person who is known or
strongly suspected to be an habitual criminal, or
against whom there is reasonable cause to believe
that he has committed a crime or is planning or
intending to commit one, or whose actions and
behavior give good ground for suspicion and who
can give no good account of himself, and who may
therefore be arrested or required to give security
for good behavior. See McFadin v. San Antonio,
22 Tex.Civ.App. 140, 54 S.W. 48; People v. Russell,
35 Misc.Rep. 765, 72 N.Y.Supp. 1; 4 Bl. Comm.
252.
Scotch Law
A stay of execution until after a further con-
sideration of the cause. Ersk. Inst. 4, 3, 5.
SUSTAIN. To carry on; to maintain. George v.
Connecticut Fire Ins. Co., 84 Okl. 172, 201 P. 510,
512, 23 A.L.R. 80.
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To support; to warrant;—said of evidence in
connection with a verdict, decision, etc. Johnson
v. Allispaugh, 58 Ind.App. 83, 107 N.E. 686, 688;
Work v. Whittington, 61 Cal.App. 302, 214 P. 474.
To suffer; bear; undergo. To endure or under-
go without failing or yielding; to bear up under.
Webster.
SUTHDURE. The south door of a church, where
canonical purgation was performed, and plaints,
etc., were heard and determined. Wharton.
SUTLER. A person who, as a business, follows
an army and sells provisions and liquor to the
troops. A small trader who follows an army and
who is licensed to sell goods, especially edibles, to
the soldiers. Keane v. U. S., C.C.A.Va., 272 F. 577,
582.
SUUM CUIQUE TRIBUERE. Lat. To render to
everyone his own. One of the three fundamental
maxims of the law laid down by Justinian.
SUUS HARES. See Hferes.
SUUS JUDEX. Lat. In old English law. A prop-
er judge; a judge having cognizance of a cause.
Literally, one's own judge. Bract. fol. 401.
SUZERAIN. In French and feudal law. The im-
mediate vassal of the king; a crown vassal; a
tenant in capite. A lord who possesses a fief
whence other fiefs issue. Note 77 of Butler &
Hargrave's notes, Co. Litt. 1. 3. Also spelled "suz-
ereign."
International Law
A state that exercises political control over an-
other state, in relation to which it is sovereign.
Webster.
The word has no clear or precise signification. It has
been extended to the control of European Powers through
their colonies over imperfectly civilized people. 12 L.
Quart.Rev. 223; 1896, p. 122. See, also, Hershey, Int.L.
106.
In modern times suzerainty is used as descriptive of
relations, ill-defined and vague, which exist between pow-
erful and dependent states; its very indefiniteness being
its recommendation. While protecting and protected states
tend to draw nearer, the reverse is true of suzerain and
vassal states; a protectorate is generally the preliminary
to incorporation; suzerainty, to separation. Encycl.Br.
It is said that suzerainty is title without corresponding
power ; protectorate is power without corresponding title.
Freund, Pol.Sci.Quart. 1899, p. 28.
SWAIN; SWAINMOTE. See Swein; Sweinmote.
SWAMP. A "swamp" has been defined as wet,
spongy land, soft low ground saturated with wa-
ter, but not usually covered by it, marshy ground
away from seashore. Campbell v. Walker, 137 Or.
375, 2 P.2d 912, 914.
SWAMP AND OVERFLOWED LANDS. Lands
unfit for cultivation by reason of their swampy
character and requiring drainage or reclamation
to render them available for beneficial use. Miller
v. Eastern Ry. & Lumber Co., 84 Wash. 31, 146 P.
171, 173; Beer v. Whiteville Lumber Co., 170 N.C.
337, 86 S.E. 1024.
Such lands, when constituting a portion of the public
domain, have generally been granted by congress to the
Black's Law Dictionary Revised 4th Ed.-102
several states within whose limits they lie. See Miller v.
Tobin, C.C.Or., 18 F. 614; Keeran v. Allen, 33 Cal. 546;
Hogaboom v. Ehrhardt, 58 Cal. 233; Thompson v. Thorn-
ton, 50 Cal. 144; Martin v. Busch, 93 Fla. 535, 112 So. 274,
284.
SWANIMOTE. See Sweinmote.
SWARF-MONEY. Warth-money; or guard-mon-
ey paid in lieu of the service of castle-ward. Cow-
ell.
SWATCH. Commercially, a small sample of cloth
from which suits, etc., are to be ordered. U. S.
Fashion & Sample Book Co. v. Montrose Cloak &
Suit Co., Mo.Sup., 218 S.W. 867, 869.
SWEAR. To put on oath; to administer an oath
to a person.
To take an oath; to become bound by an oath
duly administered. To declare on oath the truth
(of a petition, etc.). Indiana Quarries Co. v.
Simms, 158 Ky. 415, 165 S.W. 422; Landrum v.
Landrum, 159 Ga. 324, 125 S.E. 832, 833, 38 A.L.R.
217.
To use profane language;—a punishable offense
in many jurisdictions. See Gaines v. State, 7
Lea, Tenn., 410, 40 Am.Rep. 64; State v. Chrisp,
85 N.C. 528, 39 Am.Rep. 713. For "False Swear-
ling," see that title.
SWEARING THE PEACE. Showing to a magis-
trate that one has just cause to be afraid of an-
other in consequence of his menaces, in order to
have him bound over to keep the peace.
SWEATING. The questioning of a person in cus-
tody charged with crime with intent to obtain in-
formation concerning his connection therewith or
knowledge thereof by plying him with questions,
or by threats or other wrongful means, extorting
information to be used against him. Under the
statute mere questioning amounts to "sweating"
if done for the purpose of extorting from the ac-
cused information to be used against him; that is,
inducing him to unwillingly or involuntarily give
such information. Commonwealth v. , McClana-
han, 153 Ky. 412, 155 S.W. 1131, 1132, Ann.Cas.
1915C, 132.
SWEAT SHOP. A plant whose employees are
overworked and paid low wages, or a place where
employees are required to work to an extent
hardly endurable, and in the public mind the
term imputes unsavory and illegal business prac-
tices. Masters v. Sun Mfg. Co., 237 Mo.App. 240,
165 S.W.2d 701, 703.
SWEEPING. Comprehensive; including in its
scope many persons or objects; as, a sweeping
objection.
SWEEPSTAKES. In horse racing, the sum of
the stakes for which the subscribers agree to pay
for each horse nominated. Stone v. Clay, 10 C.C.
A. 147, 61 F. 889.
SWEIN. In old English law. A freeman or free-
holder within the forest.
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SWEINMOTE. In forest law. A court holden be-
fore the verderors, as judges, by the stewart of the
sweinmote, thrice in every year, the sweins or
freeholders within the forest composing the jury.
Its principal jurisdiction was—First, to inquire
into the oppressions and grievances committed by
the officers of the forest; and, secondly, to 're-
ceive and try presentments certified from the
court of attachments in offenses against vert and
venison. 3 BL Comm. 72.
SWELL. To enlarge or increase. In an action of
tort, circumstances of aggravation may "swell"
the damages.
SWIFT WITNESS. A term colloquially applied to
a witness who is unduly zealous or partial for the
side which calls him, and who betrays his bias
by his extreme readiness to answer questions or
volunteer information.
SWINDLER. A cheat; one guilty of defrauding
divers persons. 1 Term, 748.
SWINDLING. Cheating and defrauding grossly
with deliberate artifice. Wyatt v. Ayres, 2 Port.,
Ala., 157; Chase v. Whitlock, 3 Hill, N.Y., 140.
Usually applied to a transaction where the guilty
party procures the delivery to him, under a pre-
tended contract, of the personal property of an-
other, with the felonious design of appropriating
it to his own use. 2 Russ.Cr. 130; Stevenson v.
Hayden, 2 Mass. 406; Jones v. State, 97 Ga. 430,
25 S.E. 319.
The acquisition of any personal or movable
property, money, or instrument of writing con-
veying or securing a valuable right, by means of
some false or deceitful pretense or device, or
fraudulent representation, with intent to appro-
priate the same to the use of the party so acquir-
ing, or of destroying or impairing the rights of the
party justly entitled to the same. May v. State,
15 Tex.App. 436; Cochrain v. State, 93 Tex.Cr.R.
483, 248 S.W. 43, 44.
To make out offense of "cheating" and "swindling" by
false representations, state must prove that representations
were made, that representations were knowingly and de-
signedly false, that representations were made with intent
to defraud, that representations did defraud, that repre-
sentations related to existing fact or past event, and that
party to whom representations were made, relying on their
truth, was thereby induced to part with his property. Code
1933, § 26-7401 et seq. Diamond v. State, 52 Ga.App. 184,
182 S.E. 813, 814.
SWITCH. A mechanical device which turns a
movable object from one course to another. Jeff-
ery v. Kewaunee, G. B. & W. Ry. Co., 189 Wis. 207,
207 N.W. 283, 284.
As used in railroading, a device for moving
a small section of track so that rolling stock may
be run or shunted from one line to another. Jeff-
ery v. Kewaunee, G. B. & W. Ry. Co., supra. A
mechanical arrangement of movable parts of rails
for transferring cars from one track to another;
also a siding; a turnout. Pittsburgh Rys. Co. v.
Borough of Carrick, 259 Pa. 333, 103 A. 106, 108.
A track in the nature of a sidetrack adjacent to
and used in .connection with another line of track.
Indiana Rys. & Light Co. v. City of Kokomo, 183
Ind. 543, 108 N.E. 771, 772.
SWITCH LIMITS. Depot or station grounds;
yard limits. Atchison, T. & S. F. Ry. Co. v. Mc-
Call, 48 Okl. 602, 150 P. 173, 174.
SWITCH-YARD DOCTRINE. The doctrine that
there can be no implied license to the public to
use the track of a railroad company within the
limits of its switch-yard. Binion v. Central of
Georgia Ry. Co., 12 Ga.Ap1). 663, 78 S.E. 131
SWITCHING MOVEMENT or OPERATION. This
term becomes of importance in determining
whether or not the Safety Appliance Act (45 U.S.
C.A. § 1 et seq.) is applicable to a particular set of
facts, and is distinguished from "train movement."
Thus, the continuous movement of freight cars, reas-
sembled after switching, from one portion of a railroad
yard to another 4,500 feet away, through the business or
warehouse part of a city, and crossing several city streets
at grade, was held to be a "train movement," and not a
"switching operation." Illinois Cent. R. Co. v. U. S., C.C.
A.Neb., 14 F.2d 747, 748.
SWITCHING SERVICE. This term is principally
used in law in contradistinction to "transportation
service," for which different rates may be set.
"Transportation service" is one which requires no
other service to complete the shipper's object,
while "switching service" is one which precedes
or follows transportation service. Andrews Steel
Co. v. Davis, 210 Ky. 473, 27.6 S.W. 148, 150; on
which legal freight charges have already been
earned, or are to be earned. Louisville Water Co.
v. Illinois . Cent. R. Co., D.C.Ky., 14 F.Supp. 301,
303. The word "switching" in this connection is
synonymous with "transferring." J. B. Doppes
Sons Lumber Co. v. Cincinnati, N. 0. & T. P. Ry.
Co., supra. The test of distinction between these
two services is not only whether the switching
service follows transportation, but whether the
movement of cars is under the yard-master's di-
rection, in which case it is switching service, or
under the trainmaster's direction, in which event
it is transportation service. St. Louis, I. M. & S.
Ry. Co. v. Clark Pressed Brick Co., 127 Ark. 474,
192 S.W. 382, 384.
"Switching services" may also be distinguished from a
"line haul," in that the latter is a definite service ren-
dered between two definite points, to which switching is
a mere incident. Cummings Sand & Gravel Co. v. Minne-
apolis & St. L. Ry. Co., 182 Iowa, 955, 166 N.W. 354, 356,
L.R.A.1918C, 797.
SWITCHING TRACKS. Tracks for use in load-
ing, reloading, storing, and switching cars, and
other things incidental to railroad's regular train
haul. Missouri Pac. R. Co. v. Chicago Great West-
ern R. Co., 137 Kan. 217, 19 P.2d 484, 489.
SWOLING OF LAND. So much land as one's
plow can till in a year; a hide of land. Cowell.
SWORN. Frequently used interchangeably with
"verified."  Francesconi v. Independent School
Dist. of Wall Lake, 204 Iowa, 307, 214 N.W. 882,
885. See Swear.
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SYNDIC
SWORN BROTHERS. In old English law. Per-
sons who, by mutual oaths, covenant to share in
each other's fortunes.
SWORN CLERKS IN CHANCERY. Certain of-
ficers in the English court of chancery, whose
duties were to keep the records, make copies of
pleadings, etc. Their offices were abolished by St.
5 & 6 Vict. c. 103.
SYB AND SOM. A Saxon form of greeting, mean-
ing peace and safety.
SYLLABUS. An abstract; a headnote; a note
prefixed to the report of an adjudged case, con-
taining an epitome or brief statement of the rul-
ings of the court upon the point or points decided
in the case. In West Virginia it is the law of the
case, whatever may be the reasoning employed in
the opinion of the court. Kuhn v. Coal Co., 215
U.S. 356, 30 S.Ct. 140, 141, 54 L.Ed. 228. The syl-
labus, however, in that state, is never made up of
finding of facts, but is limited to points of law de-
termined. Sometimes the finding of facts is re-
ferred to for the purpose of explaining the point
of law adjudicated, but only for that purpose.
Koonce v. Doolittle, 48 W.Va. 592, 37 S.E. 644, 645.
Likewise in Ohio, the authority of decisions of its
Supreme Court is limited to points stated in the
syllabus. Walsh v. E. G. Shinner & Co., C.C.A.
Del., DLO F.2d 586, 588. But ordinarily, where a
headnote, even though prepared by the court, is
given no special force by statute or rule of court,
the opinion is to be looked to for the original and
authentic statement of the grounds of decision.
Burbank v. Ernst, 232 U.S. 162, 34 S.Ct. 299, 58
L.Ed. 551.
Also, a catalogue or list; specifically (capital-
ized), a collection of eighty condemned proposi-
tions addressed by Pope Pius IX to all the Catholic
episcopate, December 8, 1864. It gave rise to the
most violent polemics; the Ultramontane party
was loud in its praise, while the liberals treated
it as &declaration of war by the church on modern
society and civilization. Encycl. Br.
SYLLOGISM. In logic. The full logical form of
a single argument. It consists of three proposi-
tions, (two premises and the conclusion,) and
these contain three terms, of which the two oc-
curring in the conclusion are brought together in
the premises by being referred to a common class.
SYLVA CIEDUA. Lat. In ecclesiastical law.
Wood of any kind which was kept on purpose to
be cut, and which, being cut, grew again from the
stump or root. Lynd. Prov. 190; 4 Reeve, Eng.
Law 90. And see Silva Ciedua.
SYMBOLZEOGRAPHY. The art or cunning right-
ly to form and make written instruments. It is
either judicial or extrajudicial; the latter being
wholly occupied with such instruments as con-
cern matters not yet judicially in controversy,
such as instruments of agreements or contracts,
and testaments or last wills. Wharton.
SYMBOLIC DELIVERY. The constructive deliv-
ery of the subject-matter of a sale or gift, where
it is cumbersome or inaccessible, by the actual
delivery of some article which is conventionally
accepted as the symbol or representative of it,
or which renders access to it possible, or which
is evidence of the purchaser's or donee's title to
it. Thus, a present gift of the contents of a box
in a bank vault, accompanied by a transfer of the
key thereto, is valid as a symbolical delivery. In
re Leadenham's Estate, 289 Pa. 216, 137 A. 247,
249.
SYMBOLUM ANIMIE. Lat. A mortuary, or soul
scot. See Soul Scot.
SYMMETRY. Due proportion of several parts of
a body to each other; adaptation of the form or
dimensions of the several parts of a thing to each
other; harmonious relation of parts; conform-
ance; consistency; congruity; correspondence or
similarity of form, dimensions, or parts on op-
posite sides of an axis, center, or a dividing plane.
Maxwell v. City of Buhl, 40 Idaho, 644, 236 P.
122, 123.
SYMOND'S INN. Formerly an inn of chancery.
SYMPATHETIC STRIKE. A boycott. Booth v.
Brown, C.C.Wash., 62 F. 794, 795.
SYNALLAGMATIC CONTRACT. In the civil
law. A bilateral or reciprocal contract, in which
the parties expressly enter into mutual engage-
ments, each binding himself to the other. Poth.
Obl. no. 9. Such are the contracts of sale, hiring,
etc. See State ex rel. Waterman v. J. S. Water-
man and Co., 178 La. 340, 151 So. 422, 426.
SYNCHRONISM. Two things may be said to be
operating in "synchronism," not merely when they
operate simultaneously, but also when their cycles
of operation bear a timed relation to each other.
Diamond Power Specialty Corporation v. Bayer,
C.C.A.Mo., 13 F.2d 337, 342.
SYNCHRONIZATION. The operation of two ra-
dio broadcasting stations simultaneously upon the
same frequency and with identical programs.
WGN, Inc., v. Federal Radio Commission, 62 App.
D.C. 385, 68 F.2d 432, 433.
SYNCOPARE. To cut short, or pronounce things
so as not to be understood. Cowell.
SYNDIC. In the civil law. An advocate or pa,
tron; a burgess or recorder; an agent or attorney
who acts for a corporation or university; an ac,
tor or procurator; an assignee. Wharton.
The word "syndic" in the civil law corresponds very
nearly with that of assignee under the common law.
Mobile & 0. R. Co. v. Whitney, 39 Ala. 468, 471.
In English common law. An agent appointed
by a corporation for the purpose of obtaining
letters of guardianship and the like, to whom such
letters were issued. Minnesota L. & T. Co. v.
Beebe, 40 Minn. 7, 41 N.W. 232, 233, 2 L.R.A. 418.
In French law. The person who is commis-
sioned by the courts to administer a bankruptcy.
He fulfills the same functions as the trustee or as-
signee. Also, one who is chosen to conduct the
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SYNDIC
affairs and attend .to the concerns of a body cor-
porate or community. In this sense the word
corresponds to director or manager. Rodman
Notes to Code de Com. p. 351; Dalloz, Dict. Syn-
dic. See Field v. United States, 9 Pet. 182, 9 L.Ed.
94.
In Louisiana. The assignee of a bankrupt. Al-
so, one of several persons to be elected by the
creditors of a succession, for the purpose of ad.
ministering thereon, whenever a succession has
been renounced by the heirs, or has been accepted
under the benefit of an inventory, and neither the
beneficiary heirs, their attorney in fact, nor tutor
will accept the administration and give the se-
curity required. Civ.Code. La. art. 1224.
'SYNDICALISM. The theory, plan, or practice of
trade-union action which aims by the genera]
strike and direct action to establish control by
local organizations of workers over the means and
processes of production. Webster.
A form or development of trade-unionism, orig-
inating in France, which aims at the possession of
th means of production and distribution, and ul-
timately at the control of society and govern-
ment, by the federated bodies of industrial work-
ers, and which seeks to realize its purposes
through the agency of general strikes and of ter-
rorism, sabotage, violence, or other criminal
means. New Cent. Dict.
Criminal Syndicalism
Defined by the California Criminal Syndicalism
Act as any doctrine or precept advocating, teach-
ing, or aiding and abetting the commission of
crime, sabotage (defined in the act as willful and
malicious physical damage or injury to physical
property), or unlawful acts of force and violence
or unlawful methods of terrorism, as a means of
accomplishing a change in industrial ownership,
or control, or effecting any political change. See
People v. Lesse, 52 Cal.App. 280, 199 P. 46, 47;•
State v. Dingman, 37 Idaho, 253, 219 P. 760, 763.
SYNDICATE. A university committee. A com-
bination of persons or firms united for the pur-
pose of enterprises too large for individuals to
undertake; or a group of financiers who buy up
the shares of a company in order to sell them at
a profit by creating a scarcity. Mozley & Whitley.
An association of individuals, formed for the
purpose of conducting and carrying out some
particular business transaction, ordinarily of a
financial character, in which the members are
mutually interested. Hambleton v. Rhind, 84 Md.
456, 36 A. 597, 40 L.R.A. 216. An organization
formed for some temporary purpose. Gates v.
Megargel, C.C.A.N.Y., 266 F. 811, 817, such as the
organization of a real estate trust and the sale of
shares to the public. Minot v. Burroughs, 223
Mass. 595, 112 N.E. 620, 623.
Merely "joint adventure," which is special combination
in specific venture for profit without partnership or cor-
porate designation. McCausey v. Burnet, 60 App.D.C. 201,
50 F.2d 491, 492.
SYNDICATING. Gathering materials suitable
for newspaper publication from writers and art-
ists and distributing the same at regular inter-
vals, in the form of matrices, to newspapers
throughout the country for publication on the
same day. Star Co. v. Wheeler Syndicate, 91 Misc.
Rep. 640, 155 N.Y.S. 782, 784.
SYNDICOS, or SYNDICUS. One chosen by a col-
lege, municipality, etc., to defend its cause. Cal-
vin. See Syndic.
SYNGRAPIL The name given by the canonists
to deeds or other written instruments of which
both parts were written on the same piece of
parchment, with some word or letters of the al-
phabet written between them, through which the
parchment was cut in such a manner' as to leave
half the word on one part and half on the other.
It thus corresponded to the chirograph or inden-
ture of the common law. 2 Bl.Comm. 295, 296.
Formerly such writings were attested by the subscrip-
tion and crosses of the witnesses; afterwards, to prevent
frauds and concealments, they made deeds of mutual , cove-
nant in a script and rescript, or in a part and counterpart,
and in the middle between the two copies they wrote the
word syngraphus in large letters, which, being cut through
the parchment and one being delivered to each party, on
being afterwards put together proved their authenticity.
A deed, bond, or other written instrument under
the hand and seal of all the parties. It was so
called because the parties wrote together.
SYNOD. A meeting or assembly of ecclesiastical
persons concerning religion; being the same
thing, in Greek, as convocation in Latin. There
are four kinds: (1) A general or universal synod
or council, where bishops of all nations meet;
(2) a national synod of the clergy of one nation
only; (3) a provincial synod, where ecclesiastical
persons of a province only assemble, being now
what is called the "convocation;" (4) a diocesan
synod, of those of one diocese. 'A synod in Scot-
land is composed of three or more presbyteries.
Wharton.
A convention of bishops and elders within a district in-
cluding at least three presbyteries. Trustees of Pencader
Presbyterian Church in Pencader Hundred v. Gibson, Del.,
22 A.2d 782, 788.
A meeting of the few adjoining presbyteries,-not the
same as an ecumenical council, which is a council of all,
and not of a part. Groesbeeck v. Dunscomb, 41 How.
Pract., N.Y., 344.
SYNODAL. A tribute or payment in money paid
to the bishop or archdeacon by the inferior clergy,
at the Easter visitation.
SYNODALES TESTES. L. Lat. Synods-men
(corrupted into sidesmen) were the urban and
rural deans, now the church-wardens. See Sides-
men.
SYNONYMOUS. Expressing the same or nearly
the same idea. McCarthy v. Dunlevy-Franklin
Co., 277 Pa. 467, 121 A. 409, 410; Hoffine v. Ewing,
60 Neb. 729, 84 N.W. 93, 95.
SYNOPSIS. A brief or partial statement, less
than the whole; an epitome; synonymous with
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T
T. As an abbreviation, this letter usually stands
for either "Territory," "Trinity," "term," "tem-
pore," (in the time of,) or "title."
Every person who was convicted of felony,
short of murder, and admitted to the benefit of
clergy, was at one time marked with this letter
upon the brawn of the thumb. Abolished by 7 &
8 Geo. IV. c. 27. Whart. Dict.
By a law of the Province of Pennsylvania, A.
D. 1698, it was provided that a convicted thief
should wear a badge in the form of the letter
"T.," upon his left sleeve, which badge should be
at least four inches long and of a color different
from that of his outer garment. Linn, Laws Prov.
Pa. 275.
T. R. E. An abbreviation of "Tempore Regis Ed-
wardi," (in the time of King Edward,) of common
occurrence in Domesday, when the valuation of
manors, as it was in the time of Edward the Con-
fessor, is recounted. Cowell.
TABARD. A short gown; a herald's coat; a sur-
coat.
TABARDER. One who wears a tabard or short
gown; the name is still used as the title of cer-
tain bachelors of arts on the old foundation of
Queen's College, Oxford. Enc. Lond.
TABELLA. Lat. In Roman law. A tablet. Used
in voting, and in giving the verdict of juries and
decision of judges ; and, when written upon, com-
monly translated "ballot." The laws which in-
troduced and regulated the mode of voting by
ballot were called "leges tabellarice." Calvin.; 1
Kent, Comm. 232, note.
TABELLIO. Lat. In Roman law. An officer
corresponding in some respects to a notary. His
business was to draw legal instruments, (con-
tracts, wills, etc.,) and witness their execution.
Calvin.
Tabelliones differed from notaries in many respects :
they had judicial jurisdiction in some cases, and from their
judgments there were no appeals. Notaries were then the
clerks or alders of the tabelliones; they received the agree-
ments of the parties, which they reduced to short notes;
and these contracts were not binding until they were writ-
ten in extenso, which was done by the tabelliones. Jacob
Law Dict. Tabellion.
TABLE. A synopsis or condensed statement,
bringing together numerous items or details so
as to be comprehended in a single view; as gen-
ealogical tables, exhibiting the names and rela-
tionships of all the persons composing a family;
life and annuity tables, used by actuaries; in-
terest tables, etc.
TABLE DE MARBRE. Fr. In old French law.
Table of Marble; a principal seat of the admiral-
ty, so called. These Tables de Marbre are fre-
quently mentioned in the Ordonnance of the
Marine. Burrill.
TABLE OF CASES. An alphabetical list of the
adjudged cases cited, referred to, or digested in a
legal text-book, volume of reports, or digest, with
references to the sections, pages, or paragraphs
where they are respectively cited, etc., which is
commonly either prefixed or appended to the vol-
ume.
TABLE RENTS. In English law.- Payments
which used to be made to bishops, etc., reserved
and appropriated to their table or housekeeping.
Wharton.
TABLEAU OF DISTRIBUTION. In Louisiana.
A list of creditors of an insolvent estate, stating
what each is entitled to. Taylor v. Hollander, 4
Mart.N.S., La., 535.
TABULA. Lat. In the civil law. A table or
tablet; a thin sheet of wood, which, when covered
with wax, was used for writing.
TABULA IN NAUFRAGIO. Lat. A plank in
a shipwreck. This phrase is used metaphorically
to designate the power subsisting in a third mort-
gagee, who took without notice of the second
mortgage, to acquire the first incumbrance, at-
tach it to his own, and thus squeeze out and get
satisfaction, before the second is admitted to the
fund. 1 Story, Eq. Jur. § 414; 2 Ves.Ch. 573. "It
may be fairly said that the doctrine survives only
in the unjust and much-criticised English rule of
tacking." Ames, Lect. Leg. Hist. 269. See Tack-
ing. The use of the expression is attributed to
Sir Matthew Hale. See 2 P. Wms. 491..
TABULIE. Lat. In Roman law. Tables. Writ-
ings of any kind used as evidences of a transac-
tion. Brissonius. Contracts and written instru-
ments of all kinds, especially wills. So called
because originally written on tablets and with
wax. Calvinus.
TABULIE NUPTIALES. In the civil law. A writ-
ten record of a marriage; or the agreement as to
the dos.
TABULARIUS. Lat. A notary, or tabellio. Cal-
vin.
TABERNACULUM. In old records. A public
inn, or house of entertainment. Cowell.
TABERNARIUS. Lat. In the civil law. A shop-
keeper. Dig. 14, 3, 5, 7.
In old English law. A taverner or tavern keep-
er. Fleta, lib. 2, c. 12, § 17.
TABES DORSALIS. In medical jurisprudence.
Another name for locomotor ataxia. It accom-
panies attacks of tabetic dementia. See Insanity.
TABETIC DEMENTIA. See Insanity.
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TACKING
TAC, TAK. In old records. A kind of Customary
payment by a tenant. Cowell.
TAC FREE. In old records. Free from the com-
mon duty or imposition of tac. Cowell.
TACHOMETER. A device used on automobiles
to record speed. Cooper v. Hoeglund, 221 Minn.
.446, 22 N.W.2d 450.
TACIT. Existing, inferred, or understood without
being openly expressed or stated, implied by si-
lence or silent acquiescence, understood, implied
as a tacit agreement; a tacit understanding.
State v. Chadwick, 150 Or. 645, 47 P.2d 232, 234.
Done or made in silence, implied or indicated, but
not actually expressed. Goree v. Midstates Oil
Corporation, 205 La. 988, 18 So.2d 591, 596. Mani-
fested by the refraining from contradiction or
objection; inferred from the situation and cir-
cumstances, in the absence of express matter.
TACIT ACCEPTANCE. In the civil law, a tacit
acceptance of an inheritance takes place when
some act is done by the heir which necessarily
supposes his intention to accept and which he
would have no right to do but in his capacity as
heir. Civ. Code La. art. 988.
TACIT DEDICATION. Of property for public use
is dedication arising from silence or inactivity,
without express contract or agreement. Goree v.
Midstates Oil Corporation, 205 La. 988, 18 So.2d
:591, 596.
TACIT HYPOTHECATION. In the civil law, a
species of lien or mortgage which is created by
operation of law without any express agreement
of the parties. Mackeld. Rom. Law, § 343. In
admiralty law, this term is sometimes applied to
a maritime lien, which is not, strictly speaking, an
hypothecation in the Roman sense of the term,
though it resembles it. See The Nestor, 1 Sumn.
73, 18 Fed.Cas. 9.
TACIT LAW. A law which derives its authority
from the common consent of the people without
any legislative enactment. 1 Bouv. Inst. no. 120.
TACIT MORTGAGE. In the law of Louisiana.
The law alone in certain cases gives to the credi-
tor a mortgage on the property of his debtor,
- without it being requisite that the parties should
stipulate it. This is called "legal mortgage." It
is called also "tacit mortgage," because it is es-
tablished by the law without the aid of any agree-
ment. Civ. Code La. art. 3311.
TACIT RELOCATION. A doctrine borrowed from
the Roman law. It is a presumed renovation of
the contract from the period at which the former
expired, and is held to arise from implied consent
of parties, in consequence of their not having
signified their intention that agreement should
terminate at the period stipulated. Though the
original contract may have been for a longer
period than one year, the renewed agreement can
never be for more than one year, because verbal
contract of location can extend longer. Srygley
v. City of Nashville, 175 Tenn. 417, 135 S.W.2d
451.
In Scotch law. The tacit or implied renewal
of a lease, inferred when the landlord, instead of
warning a tenant to remove at the stipulated ex-
piration of the lease, has allowed him to continue
without making a new agreement. Bell, "Reloca-
tion."
TACIT TACK. In Scotch law. An implied tack
or lease; inferred from a tacksman's possessing
peaceably after his tack is expired. 1 Forb. Inst.
pt. 2, p. 153.
TACITA QUIEDAM HABENTUR PRO EXPRES-
SIS. 8 Coke, 40. Things unexpressed are some-
times considered as expressed.
TACITE. Lat. Silently; impliedly; tacitly.
TACITURNITY. In Scotch law, laches in not
prosecuting a legal claim, or in acquiescing in an
adverse one. Mozley & Whitley.
TACK, v. To annex some junior lien to a first
lien, thereby acquiring priority over an interme-
diate one. See Tacking.
TACK, n. In Scotch law.. A term corresponding
to the English "lease," and denoting the same
species of contract.
Tack duty. Rent reserved upon a lease.
TACKING. The uniting of securities given at
different times, so as to prevent any intermediate
purchaser from claiming a title to redeem or oth-
erwise discharge one lien, which is prior, without
redeeming or discharging the other liens also,
which are subsequent to his own title. 1 Story,
Eq. Jur. § 412. The term is particularly applied
to the action of a third mortgagee who, by buy-
ing the first lien and uniting it to his own, gets
priority over the second mortgagee.
The source and origin of the English doctrine is the case
of Marsh v. Lee, 2 Ventr. 337; 1 Ch.Cas. 162; 1 Wit & T.
L.C.Eq. 611, notes. This case and the doctrine founded
upon it has been the subject of severe criticism. Langd.
Eq.P1. 191. Lord Ch. J. Holt is said to have been one of
the first to benefit by the right of tacking. Holt v. Mill, 2
Vern. 279. This doctrine is inconsistent with laws which
require the recording of mortgages, and in the United
States, it does not exist to any extent. Brayee v. Bank, 14
Ohio 318; Dyer v. Graves, 37 Vt. 375; Parkist v. Alexan-
der, 1 Johns.Ch., N.Y., 399; Bisph.Eq. § 159.
The term is also used in a number of other connections,
as of possessions, disabilities, or items in accounts or other
dealings. In these several cases the purpose of the pro-.
posed tacking is to avoid the bar of a statute of limitations.
See Davis v. Coblens, 174 U.S. 719, 19 S. a. 832, 43 L. Ed.
1147; Knippenberg v. Morris, 80 Ind. 540; Eager v. Com.,
4 Mass. 182; Sharp v. Stephens' Committee, 21 Ky.L.Rep.
687, 52 S.W. 977; Graham v. Stanton, 177 Mass. 321, 58
N.E. 1023; Moore v. Blackman, 109 Wis. 528, 85 N.W. 429.
The term is applied especially to the process of making out
title to land by adverse possession, when the present occu-
pant and claimant has not been in possession for the full
statutory period, but adds or "tacks" to his own posses-
sion that of previous occupants under whom he claims.
See J. B. Streeter Co. v. Fredrickson, 11 N.D. 300, 91 N.W.
692; Frost v. Courtis, 172 Mass. 401, 52 N.E. 515; Murray
v. Pannaci, 67 N.J.Eq. 724, 57 A. 1132.
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TACKSMAN
TACKSMAN. In Scotch law. A tenant or lessee;
one to whom a tack is granted. 1 Forb. Inst. pt.
2, p. 153.
TACTIS SACROSANCTIS. Lat. In old English
law. Touching the holy evangelists. Fleta, lib.
3, c. 16, § 21. "A bishop may swear visis evange-
liis, [looking at the Gospels,] and not tactis, and
it is good enough." Freem. 133.
TACTO PER SE SANCTO EVANGELIO. Lat.
Having personally touched the holy Gospel. Cro.
Eliz. 105. The description of a corporal oath.
TAIL. Limited; abridged; reduced; curtailed, as
a fee or estate in fee, to a certain order of suc-
cession, or to certain heirs.
TAIL, ESTATE IN. An estate of inheritance,
which, instead of descending to heirs generally,
goes to the heirs of the donee's body, which means
his lawful issue, his children, and through them
to his grandchildren in a direct line, so long as
his posterity endures in a regular order and
course of descent, and upon the death of the first
owner without issue, the estate determines. 1
Washb. Real Prop. *72. Kolmer v. Miles, 270 Ill.
20, 110 N.E. 407, 408; Tantum v. Campbell, 83 N.J.
Eq. 361, 91 A. 120, 121; Harwell v. Harwell, 151
Tenn. 587, 271 S.W. 353, 355.
A freehold of inheritance, limited to a person and the
heirs of his body, general or special, male or female, and
is the creature of the statute de Donis. The estate, provid-
ed the entail be not barred, reverts to the donor or re-
versioner, if the donee die without leaving descendants
answering to the condition annexed to the estate upon its
creation, unless there be a limitation over to a third person
on default of such descendants, when it vests in such third
person or remainder-man. Wharton. In re Reeves, 10 Del.
Ch. 324, 92 A. 246, 247; 10 Del.Ch. 483, 94 A. 511, 513;
Conover v. Cade, 184 Ind. 604, 112 N.E. 7, 11; Gardner v.
Anderson, 114 Kan. 778, 227 P. 743, 748; Cox v. Fink, 200
Ky. 219, 254 S.W. 757, 758.
Several Tail
An entail severally to two; as if land is given
to two men and their wives, and to the heirs of
their bodies begotten; here the donees have a
joint estate for their two lives, and yet they have
a several inheritance, because the issue of the one
shall have his moiety, and the issue of the other
the other moiety. Cowell.
Tail after Possibility of Issue Extinct
A species of estate tail which arises where one
is tenant in special tail, and a person from whose
body the issue was to spring dies without issue,
Or, having left issue, that issue becomes extinct.
In either of these cases the surviving tenant in
special tail becomes "tenant in tail after possibility
of issue extinct." 2 Bl.Comm. 124.
Tail Female
When lands are given to a person and the fe-
male heirs of his or her body. The male heirs are
not capable of inheriting it.
Tail General
An estate in tail granted to one "and the heirs
of his body begotten," which is called "tail gen-
eral" because, how often soever such donee in
tail be married, his issue in general by all and
every such marriage is, in successive order, capa-
ble of inheriting the estate tail per formam doni.
2 Bl.Comm. 113; Tantum v. Campbell, 83 N.J.Eq.
361, 91 A. 120, 122. This is where an estate is lim-
ited to a man and the heirs of his body, without
any restriction at all; or, according to some au-
thorities, with no other restriction than that in
relation to sex. Thus, tail male general is the
same thing as tail male; the word "general," in
such case, implying that there is no other restric-
tion upon the descent of the estate than that it
must go in the male line. So an estate in tail
female general is an estate in tail female. The
word "general," in the phrase, expresses a purely
negative idea, and may denote the absence of
any restriction, or the absence of some given re-
striction which is tacitly understood. Mozley &
Whitley.
Tail Male
When certain lands are given to a person and
the male heirs of his or her body. The female
heirs are not capable of inheriting it,
Tail Special
This denotes an estate in tail where the succes-
sion is restricted to certain heirs of the donee's
body, and does not go to all of them in general;
e. g., where lands and tenements are given to a
man and "the heirs of his body on Mary, his now
wife, to be begotten;" here no issue can inherit
but such special issue as is engendered between
those two, not such as the husband may have by
another wife, and therefore it is called "special
tail." 2 Bl.Comm. 113. It is defined by Cowell
as the limitation of lands and tenements to a
man and his wife and the heirs of their two
bodies. But the phrase need not be thus restrict-
ed. Tail special, in its largest sense, is where the
gift is restrained to certain heirs of the donor's
body, and does not go to all of them in general.
Mozley & Whitley.
TAIL LIGHT. Red light on the rear of a motor
vehicle. Mahar v. Mackay, 55 Cal.App.2d 869,
132 13.2d 42, 47.
TAILAGE. See Tallage,
TAILLE. Fr.
In old English law. The fee which is opposed to
fee-simple, because it is so minced or pared that
it is not in the owner's free power to dispose of
it, but it is, by the first giver, cut or divided from
all other, and tied to the issue of the donee,—in
short, an estate-tail. Wharton.
In old Franch law. A tax or assessment levied
by the king, or by any great lord, upon his sub-
jects, usually taking the form of an imposition
upon the owners of real estate. Brande. The
equivalent of the English tallage—the typical di-
rect tax in France of the Middle Ages, as tonlieu
was the generic term for an indirect tax. See
Tallage.
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TAKE
TAILORS TO THE TRADE. Those who cut,
make, and trim garments for merchant tailors
in different parts of the United States. Magid v.
Tannenbaum, 164 App.Div. 142, 149 N.Y.S. 445.
TAILZIE. In Scotch law. An entail. A tailzied
fee is that which the owner, by exercising his in-
herent right of disposing of his property, settles
upon others than those to whom it would have
descended by law. 1 Forb.Inst. pt. 2, p. 101.
TAINT. A conviction of felony, or the person so
convicted. Cowell.
TAKE. To lay hold of; to gain or receive into
possession; to seize; to deprive one of the use or
possession of; to assume ownership. City of Dur-
ham v. Wright, 190 N.C. 568, 130 S.E. 161, 163.
Thus, constitutions generally provide that a man's prop-
erty shall not be taken for public uses without just com-
pensation. Evansville & C. R. Co. v. Dick, 9 Ind. 433; Gas
Products Co. v. Rankin, 63 Mont. 372, 207 P. 993, 998, 24
A.L.R. 294; Piper v. Ekern, 180 Wis. 586, 194 N.W. 159,
162, 34 A.L.R. 32. Property may be deemed "taken" with-
in the meaning of these constitutional provisions when it
Is totally destroyed or rendered valueless, Lund v; Salt
Lake County, 58 Utah 546, 200 P. 510, 513; or when it is
damaged by a public use in connection with an actual tak-
ing by the exercise of eminent domain, City of St. Louis
v. St. Louis, I. M. & S. Ry. Co., 272 Mo. 80, 197 S.W. 107,
111; or when there is interference with use of property to
owner's prejudice, with resulting diminution in value
thereof, Webster County v. Lutz, 234 Ky. 618, 28 S.W.2d
966, 967. But acquisition of title or total destruction of
value is not essential to "taking," for which compensa-
tion must be made. Cheves v. Whitehead, D.C.Ga., 1 F.
Supp. 321, 324.
The word take has many shades of meaning, pre-
cise meaning which it is to bear in any case de-
pending on the subject with respect to which it is
used. Kennedy v. New York Life Ins. Co., 178
Misc. 258, 172 So. 743, 745.
In the law of larceny, to obtain or assume pos-
session of a chattel unlawfully, and without the
owner's consent; to appropriate things to one's
own use with felonious intent. Thus, an actual
taking is essential to constitute larceny. 4 Bl.
Comm. 430. A "taking" occurs when a person
with a preconceived design to appropriate prop-
erty to his own use obtains possession of it by
means of fraud or trickery. People v. Edwards,
Cal.App. 102, 236 P. 944, 948.
In this connection, "take" is not synonymous with "ob-
tain," which embraces many other ways of acquiring prop-
erty. Allen v. State, 97 Tex.Cr.R. 467, 262 S. W. 502, 503.
Nor is "take" necessarily synonymous with "steal." Hunt
v. State, 89 Tex.Cr.R. 89, 229 S.W. 869, 871; Louisville &
N. R. Co. v. Malone, 200 Ala. 380, 76 So., 296, 297. But the
phrase "take by stealth" may have the same meaning as
"steal." Roach v. State, 23 Okl.Cr. 280, 214 P. 563, 564.
To seize or apprehend a person; to arrest the
body of a person by virtue of lawful process.
Thus, a capias commands the officer to take the
body of the defendant. Corn. v. Hall, 9 Gray,
Mass., 267, 69 Am.Dec. 285.
To acquire the title to an estate; to receive or
be entitled to an estate in lands from another
person by virtue of some species of title. Thus
one is said to "take by purchase," "take by de-
scent," "take a life-interest under the devise," etc.
In re Bock, 125 Misc. 653, 211 N.Y.S. 621. 622.
To receive the verdict of a jury; to superintend
the delivery of a verdict; to hold a court. The
commission of assize in England empowers the
judges to take the assizes; that is, according to
its ancient meaning, to take the verdict of a pe-
culiar species of jury called an "assize;" but, in
its present meaning, "to hold the assizes." 3 Bl.
Comm. 59, 185. To choose; e. g., ad capiendas
assisas, to choose a jury.
To procure or to obtain (an appeal). Nessans
v. Colomes, 136 La. 1051, 68 So. 122; Cochran v.
State, 206 Ala. 74, 89 So. 278.
See, also, Taking.
TAKE AWAY. This term in a statute punishing
every person who shall take away any female un-
der 18 from her father for the purpose of prosti-
tution requires only that such person procure or
cause her to go away by some persuasion, entice-
ment, or inducement offered, exercised, or held out
to the girl, or by furnishing her the means or
money with which to go away. State v. Corrigan,
262 Mo. 195, 171 S.W. 51, 54.
TAKE BACK. To revoke; to retract; as, to take
back one's promise. Dimock State Bank v. Boeh-
nen, 46 S.D. 50, 190 N.W. 485.
TAKE BY STEALTH. To steal; feloniously to
take and carry away the personal goods of an-
other; to take without right, secretly, and without
leave or consent of the owner. Roach v. State, 23
Okl.Cr. 280, 214 P. 563, 564.
TAKE CARE OF. To support; maintain; look
after (a person). Ballenger v. Ballenger, 208 Ala.
147, 94 So. 127. To pay (a debt). Scranton Mer-
cantile Co. v. E. Schneider & Co., 163 Ark. 536,
260 S.W. 426, 427. To attend to. Southern Surety
Co. v. Chicago, R. I. & P. R. Co., 215 Iowa, 525, 245
N.W. 864, 868.
TAKE EFFECT. To become operative or execut-
ed. Miller v. Oliver, 54 Cal.App. 495, 202 P. 168,
171. To be in force, or go into operation. Mowery
v. Washington Nat. Ins. Co., 289 Ill.App. 443, 7
N.E.2d 334, 335.
TAKE OVER. To assume control or management
of;-not necessarily involving the transfer of ab-
solute title. New York Trust Co. v. Farmers'
Irr. Dist., C.C.A.Neb., 280 F. 785, 795. See, how-
ever, Knight v. First Nat. Bank, C.C.A.Ky., 281 F.
968, 972.
TAKE UP. To pay or discharge (a note). Ash-
ville Sa y . Bank v. Lee, 214 Ala. 501, 108 So. 335,
337; McKenzie v. Smith, 18 Ga.App. 626, 89 S.E.
1097, 1098; Dilenbeck v. Herrold, 183 Iowa, 264,
164 N.W. 869, 870. Also, sometimes, to purchase
a note. Dilenbeck v. Herrold, supra. To retire
(a negotiable instrument) ; to discharge one's li-
ability on it;-said particularly of an indorser
or acceptor.
A party to a negotiable instrument, particularly an in-
dorser or acceptor, is said to "take up" the paper, or to
"retire" it, when he pays its amount, or substitutes other
security for it, and receives it again into his own hands.
See Hartzell v. McClurg, 54 Neb. 316, 74 N.W. 626; Mc-
Kenzie v. Smith, 18 Ga.App. 626, 89 S.E. 1097, 1098.
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TAKENOKO
TAKENOKO. Chopped, cooked, and canned barn-
boo sprouts from Japan, used as a vegetable in
a manner similar to asparagus. Nippon Co. v.
U. S., 12 Ct.Cust.App. 548, 549.
TAKEOVER BID. A tender offer, cL. v.
TAKER. One who takes or acquires; particular-
ly, one who takes an estate by devise. When an
estate is granted subject to a remainder or execu
tory devise, the devisee of the immediate interest
is called the "first taker."
TAKING. In criminal law and torts. The act
of laying hold upon an article, with or without
removing the same. It implies a transfer of pos-
session, dominion, or control. See Take.
Under various statutes relating to sexual offenses, such
as the abduction of a girl under the age of 18 years for
the purpose of carnal intercourse, to constitute a "taking"
no force, actual or constructive, need be exercised. State
v. Lauzer, 152 Minn. 279, 188 N.W. 558, 559. The "taking"
may be effected by persuasion, enticement, or inducement.
State v. Richards, 88 Wash. 160, 152 P. 720. And it is not,
necessary that the girl be taken from the control or
against the will of those having lawful authority over her.
State v. Lauzer, 152 Minn. 279, 188 N.W. 558. But the
state must prove conduct by defendant indicating a con.
trol, complete or partial, of her person, having sexual in-
tercourse as its object. State v. Clough, Del.Gen.Sess., 134
A. 172. 173.
TALC. A mineral compound, known as hydrat-
ed silicate of magnesia. U. S. v. R. C. Boeckel &
Co., C.C.A.Mass., 221 F. 885, 886.
TALE. The count or counting of money. Said
to be derived from the same root as "tally."
Cowell. Whence also the modern word "teller."
Old Pleading
The plaintiff's count, declaration, or narrative
of his case. 3 Bl.Comm. 293.
TALES. Lat. Such; such men. A number of
jurors added to a deficient panel to supply the de-
ficiency. Nesbit v. People, 19 Colo. 441, 36 P.
221. See Shields v. Bank, 3 Hun, N.Y., 477, 479.
When, by means of challenges or any other cause,
a sufficient number of unexceptionable jurors does
not appear at the trial, either party may pray a
"tales," as it is termed; that is, a supply of such
men as are summoned on the first panel in order
to make up the deficiency. Brown. See State
v. McCrystol, 43 La.Ann. 907, 9 So. 922; Railroad
Co. v. Mask, 64 Miss. 738, 2 So. 360.
A list of such jurymen as were of the tales,
kept in the king's bench office in England.
TALES DE CIRCUMSTANTIBUS. So many of
the by-standers. The emphatic words of the old
writ awarded to the sheriff to make up a deficien-
cy of jurors out of the persons present in court.
3 Bl.Comm. 365.
The order of the judge for taking such by-
standers as jurors. See Lee v. Evaul, 1 N.J.Law,
283; Fuller v. State, 1 Blackf., Ind., 65.
TALESMAN. A person summoned to act as a
juror from among the by-standers in the court.
Linehan v. State, 113 Ala. 70, 21 So. 497; Shields
v. Niagara County Sa y . Bank, 5 Thomp. & C., N.Y.,
587. A person summoned as one of the tales add-
ed to a jury. Webster.
TALIO. Lat. In the civil law. Like for like;
punishment in the same kind; the punishment of
an injury by an act of the same kind, as an eye
for an eye, a limb for a limb, etc. Calvin.
TALIS INTERPRETATIO SEMPER FIENDA
EST, UT EVITETUR ABSURDUM ET INCON-
VENIENS, ET NE JUDICIUM SIT ILLUSORIUM.
1 Coke, 52. Interpretation is always to be made
in such a manner that what is absurd and incon-
venient may be avoided, and the judgment be not
illusory [or nugatory].
TALIS NON EST EADEM; NAM NULLUM SIM-
ILE EST IDEM, 4 Coke, 18. What is like is not
the same; for nothing similar is the same.
TALIS RES, VEL TALE RECTUM, QUIE VEL
QUOD NON EST IN HOMINE ADTUNC SU-
PERSTITE SED TANTUMMODO EST ET CON-
SISTIT IN CONSIDERATIONE ET INTELLI-
GENTIA LEGIS, ET QUOD ALII DIXERUNT
TALEM REM VEL TALE RECTUM FORE IN
NUBIBUS. Such a thing or such a right as is not
vested in a person then living, but merely exists
in the consideration and contemplation of law [is
said to be in abeyance,] and others have said that
such a thing or such a right is in the clouds. Co.
Litt. 342.
TALITER PROCESSUM EST. So it has pro-
ceeded. Words formerly used in pleading, by
which a defendant, in justifying his conduct by
the process of an inferior court, alleged the pro-
ceedings in such inferior court. Steph.P1. 5th ed.
p. 369. Upon pleading the judgment of an inferior
court, the proceedings preliminary to such judg-
ment, and on which the same was founded, must,
to some extent, appear in the pleading, but the
rule is that they may be alleged with a general
allegation that "such proceedings were had," in-
stead of a detailed account of the proceedings
themselves, and this general allegation is called
the "taliter processum est." A like concise mode
of stating former proceedings in a suit is adopted
at the present day in chancery proceedings upon
petitions and in actions in the nature of bills of
revivor and supplement. Brown.
TALLAGE, or TAILAGE. A piece cut out of the
whole. Cowell. Used metaphorically for a share
of a man's substance paid by way of tribute, toll,
or tax, being derived from the French "tailler,"
which signifies to cut a piece out of the whole.
Cowell. See State v. Switzler, 143 Mo. 287, 45
S.W. 245, 40 L.R.A. 280; Lake Shore, etc., R. Co.
v. Grand Rapids, 102 Mich. 374, 60 N.W. 767, 29
L.R.A. 195. A term used to denote subsidies,
taxes, customs, and, indeed, any imposition what-
ever by the government for the purpose of rais-
ing a revenue. Bacon, Abr. Smuggling, etc. (B) ;
Fort. De Laud. 26; Madd. Exch. c. 17; Co. 2d Inst.
531. A tax upon cities, townships and boroughs
granted to the king as a part of the royal revenue.
2 Steph.Com. 622; 1 Poll. & Maitl. 647.
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TANKAGE
TALLAGER. A tax or toll gatherer; mentioned
by Chaucer (and spelled "talaigier").
TALLAGIUM. L. Lat. A term including all tax-
es.
TALLAGIUM FACERE. To give up accounts in
the exchequer, where the method of accounting
was by tallies.
TALLATIO. A keeping account by tallies. Cow-
ell.
TALLEY, or TALLY. A stick cut into two parts,
on each whereof is marked, with notches or oth-
erwise, what is due between debtor and creditor.
It was the ancient mode of keeping accounts. One
part was held by the creditor, and the other by
the debtor. The use of tallies in the exchequer
was abolished by St. 23 Geo. III. c. 82, and the
old tallies were ordered to be destroyed by St
4 & 5 Wm. IV. c. 15. Wharton. By the custom
of London, sealed tallies were effectual as a deed.
Liber Albus 191a. They are admissible by the
French and Italian Codes as evidence between
traders. It is said that they were negotiable. See
Penny Encycl.; Hall, Antiq. of Exch. 118.
Tallies of loan. A term originally used in Eng-
land to describe exchequer bills, which were issu-
ed by the officers of the exchequer when a tem-
porary loan was necessary to meet the exigencies
of the government, and charged on the credit of
the exchequer in general, and made assignable
from one person to another. Briscoe v. Bank of
Kentucky, 11 Pet. 328, 9 L.Ed. 709.
Tally trade. A system of dealing by which
dealers furnish certain articles on credit, upon an
agreement for the payment of the stipulated price
by certain weekly or monthly installments.
McCul. Dict.
TALLIA. L. Lat. A tax or tribute; tallage; a
share taken or cut out of any one's income or
means. Spelman.
TALMUD. A work which embodies the civil and
canonical law of the Jewish people.
TALTARUM'S CASE. A case reported in Yearb.
12 Edw. IV. 19-21, which is regarded as having
established the foundation of common recoveries.
TALWEG. Germ. (Tal meaning valley, Weg
meaning way.) Commonly used by writers on
international law in definition of water bounda-
ries between states, meaning the middle or deepest
or most navigable channel, and while often styled
"fairway" or "midway" or "main channel" the
word has been taken over into various languages
and the doctrine of Talweg is often applicable in
respect of water boundaries to sounds, bays,
straits, gulfs, estuaries and other arms of the sea
and also applies to boundary lakes and landlocked
seas whenever there is a deep water sailing chan-
nel therein. State of Louisiana v. State of Mis-
sissippi, 26 S.Ct. 408, 421, 202 U.S. 1, 50 L.Ed. 913.
TAM QUAM. A phrase used as the name of a
writ of error from inferior courts, when the error
is supposed to be as well in giving the judgment
as in awarding execution upon it. (Tam in reddi-
tione judicii, quam in adjudicatione executionis.)
Venire Tam Quam
One by which a jury was summoned, as well
to try an issue as to inquire of the damages on a
default. 2 Tidd, Pr. 722, 895.
TAME. Domesticated; accustomed to man; re-
claimed from a natural state of wildness. In the
Latin phrase, tame animals are described as dom-
itce naturce.
TAMEN. Lat. Notwithstanding; nevertheless;
yet.
TAMPER. To meddle so as to alter a thing, es-
pecially to make corrupting or perverting chang-
es; as, to tamper with a document or a text; to
interfere improperly; to meddle; to busy oneself
rashly; to try trifling or foolish experiments.
United States v. Tomicich, D.C.Pa., 41 F.Supp. 33,
35.
TANAMOSHI. Japanese. An association usually
consisting of from fourteen to seventeen mem-
bers. Members are obligated to contribute an
agreed amount per month to the association.
Each month a drawing is held and the member
who bids the highest amount by way of interest
and who has not yet received a loan from the
association is entitled to take the aggregate of
contributions for that particular month, except
that at the last meeting of the association no in-
terest is paid. The interest bid each month is re-
turned to each member of the Tanamoshi as his
profit on the amount of his contribution to the
association. Heylin v. Yil, 30 Haw. 606, 607.
TANGIBLE. Capable of being touched; also, per-
ceptible to the touch; tactile; palpable, and as be-
ing capable of being possessed or realized; readily
apprehensible by the mind; real; substantial; ev-
idence. Moeller, McPherrin & Judd v. Smith, 127
Neb. 424, 255 N.W. 551.
TANGIBLE PROPERTY. That which may be felt
or touched, and is necessarily corporeal, although
it may be either real or personal. H. D. & J. K.
Crosswell, Inc., v. Jones, D.C.S.C., 52 F.2d 880, 883.
TANISTRY. In old Irish law. A species of ten-
ure, founded on ancient usage, which allotted the
inheritance of lands, castles, etc., to the "oldest
and worthiest man of the deceased's name and
blood." It was abolished in the reign of James
I. Jacob; Wharton.
TANK. A receptacle for liquid. American Tank
Co. v. Revert Oil Co., 108 Kan. 690, 196 P. 1111,
1112.
TANKAGE. Waste matter from tanks, especial-
ly the dried, nitrogenous residue from tanks, in
which fat has been rendered, used as a fertilizer.
Jenkins v. Springfield Reduction & Chemical Co.,
169 Mo.App. 534, 154 S.W. 832, 834. The refuse
of meat-packing houses, unfit for human consump-
tion, is known as "tankage" or "liquid stick" ac-
cording to its water content. Darling & Co. v.
U. S., 12 Ct.Cust.App. 86, 87.
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TANNERIA
TANNERIA. In old English law. Tannery; the
trade or business of a tanner. Fleta. lib. 2, c.
52, § 35.
TANTEO. Span. In Spanish law. Pre-emption.
White, New Recop. b. 2, tit. 2, c. 3.
TANTO, RIGHT OF. In Mexican law. The right
enjoyed by an usufructuary of property, of buy-
ing the property at the same price at which the
owner offers it to any other person, or is willing
to take from another. Civ.Code Mex. art. 992.
TANTUM BONA VALENT, QUANTUM VENDI
POSSUNT. Shep. Touch: 142. Goods are worth
so much as they can be sold for. 3 Inst. 305.
TANTUM HABENT DE LEGE, QUANTUM HAB-
ENT DE JUSTITIA. (Precedents) have value in
the law to the extent that they represent justice.
Hob. 270.
TARDE VENIT. Lat. In practice. The name of
a return made by the sheriff to a writ, when it
came into his hands too late to be executed be-
fore the return-day.
TARE. A deficiency in the weight or quantity of
merchandise by reason of the weight of the box,
cask, bag, or other receptacle which contains it
and is weighed with it. Also an allowance or
abatement of a certain weight or quantity which
the seller makes to the buyer, on account of the
weight of such box, cask, etc. Napier v. Barney,
5 Blatchf. 191, 17 Fed.Cas. 1149. See Tret.
TARIFF. A cartel of commerce, a book of rates,
a table or catalogue, drawn usually in alphabetical
order, containing the names of several kinds of
merchandise, with the duties or customs to be
paid for the same, as settled by authority, or
agreed on between the several princes and states
that hold commerce together. Enc. Lond.; Rail-
way Co. v. Cushman, 92 Tex. 623, 50 S.W. 1009;
Pacific S. S Co. v. Cackette, C.C.A.Or., 8 F.2d
259, 261.
The list or schedule of articles on which a duty
is imposed upon their importation into the Unit-
ed States, with the rates at which they .are sever-
ally taxed. Also the custom or duty payable on
such articles. And, derivatively, the system or
principle of imposing duties on the importation
of foreign merchandise.
TASSUM. In old English law. A heap; a hay-
mow, or hay-stack. Fcenum in tassis, hay in
stacks. Reg. Orig. 96.
TATH. In the counties of Norfolk and Suffolk,
the lords of manors anciently claimed the priv-
ilege of having their tenants' flocks or sheep
brought at night upon their own demesne lands,
there to be folded for the improvement of the
ground, which liberty was called by the name of
the "tath." Spelman.
TAURI LIBERI LIBERTAS. Lat. A common
bull; because he was free to all the tenants with-
in such a manor, liberty, etc.
TAUTOLOGY. Describing the same thing twice
in one sentence in equivalent terms; a fault in
rhetoric. It differs from repetition or iteration,
which is repeating the same sentence in the same
or equivalent terms; the latter is sometimes ei-
ther excusable or necessary in an argument or ad-
dress; the former (tautology) never. Wharton.
TAVERN. A place of entertainment; a house
kept up for the accommodation of strangers.
Originally, a house for the retailing of liquors
tt be drunk on the spot. Waitt Const. Co. v.
Chase, 197 App.Div. 327, 188 N.Y.S. 589, 592; City
of Birmingham v. Bollas, 209 Ala. 512, 96 So. 591,
592.
The word "tavern," in a charter provision authorizing
municipal authorities to "license and regulate taverns,"
includes hotels. "Tavern," "hotel," and "public house"
are, in this country, used synonymously; and while they
entertain the traveling public, and keep guests, and receive
compensation therefor, they do not lose their character,
though they may not have the privilege of selling liquors.
St. Louis v. Siegrist, 46 Mo. 595. And see Bonner v. Wel-
born, 7 Ga. 306; Rafferty v. Insurance Co., 18 N.J.L. 484,
38 Am. Dec. 525; In re Brewster, 39 Misc. 689, 80 N.Y.S.
666.
TAVERN KEEPER. One who keeps a tavern.
One who keeps an inn; an innkeeper.
TAVERNER. In old English law. A seller of
wine; one who kept a house or shop for the sale
of wine.
TAX, v. To impose a tax; to enact or declare
that a pecuniary contribution shall be made by
the persons liable, for the support of government.
Spoken of an individual, to be taxed is to be in-
cluded in an assessment made for purposes of
taxation.
Practice
A pecuniary burden laid upon individuals or
property to support the government, and is a
payment exacted by legislative authority. In re
Mytinger, D.C.Tex., 31 F.Supp. 977, 978, 979. An-
nual compensation paid to government for annual
protection and for current support of government.
Alabama Power Co. v. Federal Power Commission,
C.C.A.5, 134 F.2d 602, 608. A ratable portion of
the produce of the property and labor of the in-
dividual citizens, taken by the nation, in the exer-
cise of its sovereign rights, for the support of
government, for the administration of the laws,
and as the means for continuing in operation the
various legitimate functions of the state. Black,
Tax Titles, § 2; New London v. Miller, 60 Conn.
112, 22 A. 499; Graham v. St. Joseph Tp., 67 Mich.
652, 35 N.W. 808; Gibbons v. Ogden, 9 Wheat 1, 6
L.Ed. 23; Tevander v. Ruysdael, C.C.A.I11., 299 F.
746, 753; Montgomery County v. City of Montgom-
ery, 190 Ala. 366, 67 So. 311, 313; Strand v. Ma-
rin, 30 N.D. 165, 152 N.W. 280. An enforced con-
tribution of money or other property, assessed in
accordance with some reasonable rule or appor-
tionment by authority of a sovereign state on
persons or property within its jurisdiction for
the purpose of defraying the public expenses.
Heirs v. Mitchell, 95 Fla. 345, 116 So. 81, 85.
In a general sense, any contribution imposed by
government upon individuals, for the use and serv-
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TAX
ice of the state, whether under the name of toll,
tribute, tallage, gabel, impost, duty, custom, ex-
cise, subsidy, aid, supply, or other name. Story,
Const. § 950. And in its essential characteristics
is not a debt. City of Newark v. Jos. Hollander,
Inc., 136 N.J.Eq. 539, 42 A.2d 872, 875.
Synonyms
In a broad sense, taxes undoubtedly include as-
sessments, and the right to impose assessments
has its foundation in the taxing power of the
government; and yet, in practice and as gener-
ally understood, there is a broad distinction be-
tween the two terms. "Taxes," as the term is
generally used, are public burdens imposed gen-
erally upon the inhabitants of the whole state, or
upon some civil division thereof, for governmen-
tal purposes, without reference to peculiar benefits
to particular individuals or property. "Assess-
ments" have reference to impositions for im-
provements which are specially beneficial to par-
ticular individuals or property, and which are
imposed in proportion to the particular benefits
supposed to be conferred. They are justified
only because the improvements confer special ben-
efits, and are just' only when they are divided in
proportion to such benefits. Roosevelt Hospital v.
New York, 84 N.Y. 112. Flansburg v. Shumway,
117 Neb. 125, 219 N.W. 956, 958. As distinguished
from other kinds of taxation, "assessments" are
those special and local impositions upon property
in the - immediate vicinity of municipal improve-
ments which are necessary to pay for the improve-
ment, and are laid with reference to the special
benefit which the property is supposed to have
derived therefrom. Hale v. Kenosha, 29 Wis.
599; Ridenour v. Saffin, 1 Handy (Ohio) 464;
King v. Portland, 2 Or. 146; Witherow v. Board
of Drainage Com'rs of Powder Springs Creek
Drainage Dist. No. 2, 155 Ga. 476, 117 S.E. 329,
330.
Taxes differ from subsidies, in being certain
and orderly, and from forced contributions, etc.,
in that they are levied by authority of law, and
by some rule of proportion which is intended to
insure uniformity of contribution, and a just ap-
portionment of the burdens of government. Cool-
ey, Tax'n, 2.
To assess or determine; to liquidate, adjust, or
settle. Spoken particularly of taxing costs (q. v.).
General
Ad valorem tax. See Ad Valorem.
Capitation tax. See that title.
Collateral inheritance tax. See Collateral Inher-
itance.
Direct tax. One which Is demanded from the
very persons who, it is intended or desired, should
pay it. Indirect taxes are those which are de-
manded from one person, in the expectation and
intention that he shall indemnify himself at the
expense of another. Mill, Pol. Econ. Taxes are
divided into "direct," under which designation
would be included those which are assessed upon
the property, person, business, income, etc., of
those who are to pay them, and "indirect," or
those which are levied on commodities before they
reach the consumer, and are paid by those upon
whom they ultimately fall, not as taxes, but as
part of the market price of the commodity. Cool-
ey, Tax'n, 6.
Historical evidence shows that personal property, con-
tracts, occupations, and the like, have never been regarded
as the subjects of direct tax. The phrase is understood to
be limited to taxes on land and its appurtenances, and on
polls. Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482 ;
Railroad Co. v. Morrow, 87 Tenn. 406, 11 S.W. 348, 2 L.R.
A. 853; People v. Knight, 174 N.Y. 475, 67 N.E. 65, 63
L.R.A. 87.
Estate tax. A tax upon the right to transfer,
while a succession or legacy tax is a tax upon
the right to receive. Hazard v. Bliss, 43 R.I. 431,
113 A. 469, 471, 23 A.L.R. 826; Frick v. Lewellyn,
D.C:Pa., 298 F. 803, 810; In re Hamlin, 226 N.Y.
407, 124 N.E. 4, 6, 7 A.L.R. 701; In re Sherman's
Estate, 179 App.Div. 497, 166 N.Y.S. 19, 23.
Excise and tax distinguished. See Excise.
Floor tax. A tax on all the distilled spirits "on
the floor" of a warehouse, i. e., in the warehouse.
Greenbrier Distillery Co. v. U. S., D.C.Ky., 288 F.
893, 895.
Franchise tax. See Franchise.
Income tax. See Income.
Indirect taxes are those demanded in the first
instance from one person in the expectation and
intention that he shall indemnify himself at the
expense of another. "Ordinarily all taxes paid
primarily by persons who can shift the burden
upon some one else, or who are under no legal
compulsion to pay them, are considered indirect
taxes." Pollock v. Farmers' L. & T. Co., 15 S.Ct.
673, 157 U.S. 429, 39 L.Ed. 759; Thomasson v.
State, 15 Ind. 451; Foster & Creighton Co. v.
Graham, 154 Tenn. 412, 285 S.W. 570, 572, 47 A.L.R.
971.
Inheritance tax. See Inheritance.
Land tax. See Land Tax.
License tax. See License Fee or Tax.
Local taxes. Those assessments which are lim-
ited to certain districts, as poor-rates, parochial
taxes, county rates, municipal taxes, etc.
Occupation tax. See Occupation.
Parliamentary taxes. Such taxes as are im-
posed directly by act of parliament, i. e., by the
legislature itself, as distinguished from those
which are imposed by private individuals or bodies
under the authority of an act of parliament.
Thus, a sewers rate, not being imposed directly
by act of parliament, but by certain persons
termed "commissioners of sewers," is not a par-
liamentary tax; whereas the income tax, which
is directly imposed, and the amount also fixed, by
act of parliament, is a parliamentary tax. Brown.
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TAX
Personal tax. This term may mean either a
tax imposed on the person without reference to
property, as a capitation or poll tax, or a tax im-
posed on personal property, as distinguished from
one laid on real property. See Jack v. Walker,
C.C.Ohio, 79 F. 138, 141; Potter v. Ross, 23 N.J.L.
517.
Poll tax. See that title.
Proportional taxes. Taxes are "proportional"
when the proportion paid by each taxpayer bears
the same ratio to the amount to be raised that the
value of his property bears to the total taxable
value, and in the case of a special tax when that
is apportioned according to the benefits received.
In re Opinion of the Justices, 220 Mass. 613, 108
N.E. 570, 572; Perkins v. Inhabitants of Town of
Westwood, 226 Mass. 268, 115 N.E. 411, 412; In
re Opinion of the Justices, 77 N.H. 611, 93 A. 311,
312.
Public tax. A tax levied for some general public
purpose or for the purposes of the general public
revenue, as distinguished from local municipal
taxes and assessments. Morgan v. Cree, 46 Vt.
783, 14 Am.Rep. 640; Buffalo City Cemetery v.
Buffalo, 46 N.Y. 509.
Sinking fund tax. See Fund.
Specific tax. A tax imposed as a fixed sum on
each article or item of property of a given class
or kind, without regard to its value; opposed to
ad valorem tax.
Succession tax. See Succession.
Surtax. An additional tax imposed upon cer-
tain kinds of income, such as dividends from cor-
porate stock, royalties, interest from money, notes,
credits, bonds and other securities. A surtax is
sometimes imposed on incomes exceeding a speci-
fied amount.
Tax certificate. A certificate of the purchase
of land at a tax sale thereof, given by the officer
making the sale, and which is evidence of the
holder's right to receive a deed of the land if it
is not redeemed within the time limited by law.
See Eaton v. Manitowoc County, 44 Wis. 492;
Nelson v. Central Land Co., 35 Minn. 408, 29 N.W.
121.
Tax lease. The instrument (or estate) given to
the purchaser of land at a tax sale, where the
law does not permit the sale of the estate in fee
for non-payment of taxes, but instead thereof
directs the sale of an estate for years.
Tax levy. The total sum to be raised by a tax.
Also the bill, enactment, or measure of legisla-
tion by which an annual or general tax is imposed.
Tax purchaser. A person who buys land at a
tax-sale; the person to whom land, at a tax-sale
thereof, is struck down.
Tax roll. See Roll.
Tax sale. See Sale.
Tax-deed. The conveyance given upon a sale
of lands made for non-payment of taxes; the
deed whereby the officer of the law undertakes
to convey the title of the proprietor to the pur-
chaser at the tax-sale.
Tax-lien. A statutory lien, existing in favor of
the state or municipality, upon the lands of a per-
son charged with taxes, binding the same either
for the taxes assessed upon the specific tract of
land or (in some jurisdictions) for all the taxes
due from the individual, and which may be fore-
closed for non-payment, by judgment of a court or
sale of the land.
Taxing district. The district throughout which
a particular tax or assessment is ratably appor-
tioned and levied upon the inhabitants; it may
comprise the whole state, one county, a city, a
ward, or part of a street.
Taxpayer. A person chargeable with a tax: one
from whom government demands a pecuniary con-
tribution towards its support.
Taxpayers' lists. Written exhibits required to
be made out by the taxpayers resident in a dis-
trict, enumerating all the property owned by them
and subject to taxation, to be handed to the as-
sessors, at a specified date or at regular periods,
as a basis for assessment and valuation.
Tax-title. The title by which one holds land
which he purchased at a tax sale. That species of
title which is inaugurated by a successful bid for
land at a collector's sale of the same for non-pay-
ment of taxes, completed by the failure of those
entitled to redeem within the specified time, and
evidenced by the deed executed to the tax purchas-
er, or his assignee, by the proper officer.
Tonnage tax. See Tonnage Duty.
Wheel tax. A tax on wheeled vehicles of some
or all kinds and bicycles.
Window tax. See that title.
TAX FERRETS. Persons engaged in the business
of searching for property omitted from taxation.
Their activities when permitted are usually re-
garded as private rather than as part of a state
agency. Pickett v. United States, C.C.A.Mo., 100
F.2d 909, 913.
TAXA. L. Lat. A tax. Spelman.
In old records. An allotted piece of work; a
task.
TAXABLE. Subject to taxation; liable to be as-
sessed, along with others, for a share in a tax.
Mississippi State Tax Commission v. Brown, 188
Miss. 483, 195 So. 465, 469, 127 A.L.R. 919. Some-
thing of value, subject to assessment, and to be
levied upon and sold for taxes. Williams v. School
Dist. No. 32 in County of Fremont, 56 Wyo. 1, 102
P.2d 48, 52.
Applied to costs in an action, the word means
proper to be taxed or charged up; legally charge-
able or assessable.
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TEACHER
TAXABLE YEAR. This term in internal revenue
statutes has different significations, according to
its use. Waterman S. S. Corporation v. United
States, Ct.C1., 32 F.Supp. 880, 882; but when used
in ordinarily accepted meaning, refers to annual
accounting period of taxpayer. American-Ha-
waiian S. S. Co. v. U. S., Ct.C1., 46 F.2d 592, 598.
TAXARE. Lat. To rate or value. Calvin.
To tax; to lay a tax or tribute. Spelman.
In old English practice. To assess; to rate or
estimate; to moderate or regulate an assessment
or rate.
TAXATI. In old European law. Soldiers of a
garrison or fleet, assigned to a certain station.
Spelman.
TAXATIO. Lat. In Roman law. Taxation or
assessment of damages; the assessment, by the
judge, of the amount of damages to be awarded
to a plaintiff, and particularly in the way of reduc-
ing the amount claimed or sworn to by the latter.
TAXATIO ECCLESIASTICA. The value of ec-
clesiastical benefices made through every diocese
in England, on occasion of Pope Innocent IV. grant-
ing to King Henry III. the tenth of all spirituals
for three years. This taxation was first made by
Walter, bishop of Norwich, delegated by the pope
to this office in 38 Hen. III., and hence called "Tax-
atio Norwicencis." It is also called "Pope Inno-
cent's Valor." Wharton.
TAXATIO EXPENSARUM. In old English prac-
tice. Taxation of costs.
TAXATIO NORWICENSIS. A valuation of ec-
clesiastical benefices made through every diocese
in England, by Walter, bishop of Norwich, dele-
gated by the pope to this office in 38 Hen. III.
Cowell.
TAXATION. The process of taxing or imposing
a tax. In practice. Adjustment. Fixing the
amount; e. g. Taxation of costs. 3 Chitty, Gen.
Pr. 602. See Tax.
The differences between taxation and taking property in
right of eminent domain are that taxation exacts money
or services from individuals, as and for their respective
shares of contribution to any public burden; while private
property taken for public use, by right of eminent domain,
is taken, not as the owner's share of contribution to a pub-
lic burden, but as so much beyond his share, and for which
compensation must be made. Moreover, taxation operates
upon a community, or upon a class of persons in a com-
munity, and by some rule of apportionment; while emi-
nent domain operates upon an individual, and without
reference to the amount or value exacted from any other
individual, or class of individuals. People v. Brooklyn,
4 N.Y. 419, 55 Am. Dec. 266.
Double Taxation
See Double.
process of examining the items in an attorney's
bill of costs and making the proper deductions, if
any.
TAXERS. Two officers yearly chosen in Cam-
bridge, England, to see the true gauge of all the
weights and measures.
TAXICAB. A motor driven passenger convey-
ance propelled by electric or gas power, held for
public hire, at designated places, charging upon
a time or distance basis, carrying passengers to
destinations without following any fixed routes.
Tuggle v. Parker, 159 Kan. 572, 156 P.2d 533, 534.
A conveyance similar to hackney carriage or old-
fashioned hack or stage which is held for hire at
designated places and has no regular schedule or
route, but operates to carry passengers at any
time to any point and subject to call. Jarrell v.
Orlando Transit Co., 123 Fla. 776, 167 So. 664, 668.
A "taxicab" differs from a jitney bus, street car, or
omnibus as a carrier in that it does not follow a well-
defined route prescribed by ordinance, but is vehicle sub-
ject to contract by person desiring special trip from one
point to another, without reference to any prescribed legal
route. Jackie Cab Co. v. Chicago Park Dist., 366 Ill. 474,
9 N. E.2d 213, 215, 112 A.L.R. 1410.
TAXING MASTER. See Master.
TAXING OFFICER. Each house of parliament
has a taxing officer, whose duty it is to tax the
costs incurred by the promoters or opponents of
private bills. May, Parl. Pr. 843.
TAXING POWER. The power of any government
to levy taxes.
TAXT-WARD. An annual payment made to a
superior in Scotland, instead of the duties due
to him under the tenure of ward-holding. Abol-
ished. Wharton.
TEA CHEST. A box containing a definite and
prescribed amount of tea, otherwise called whole
chest (a hundred weight to 140 pounds or more),
now seldom shipped, the smaller package being
spoken of as half chest (75 to 80 pounds, but the
weight varies according to the kind of tea), and
quarter chest (from 25 to 30 pounds) and thus
a "tea chest" in the language of the trade is under-
stood to be a half chest and not a whole chest.
Japan Tea Co. v. Franklin MacVeagh & Co., 142
Minn. 152, 171 N.W. 305, 307.
TEACH. To impart knowledge by means of les-
sons; to give instruction in; communicating
knowledge; introducing into or impressing on the
mind as truth or information, and may be done
as well through written communications, person-
al direction, through the public press, or through
any means by which information may be dissemi-
nated, or it may be done by the adoption of senti-
ment expressed or arguments made by others
which are distributed to others for their adop-
tion and guidance. Ex parte Bernat, D.C.Wash.,
255 F. 429, 432.Taxation of Costs
In practice. The process of ascertaining and
charging up the amount of costs in an action to TEACHER. One who teaches or instructs; es-
which a party is legally entitled, or which are pecially one whose business or occupation is to
legally chargeable. And, in English practice, the teach others; an instructor; preceptor. Ortega
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TEAM
v. Otero, 48 N.M. 588, 154 P.2d 252, 254, 255, 257;
Jeu Jo Wan v. Nagle, C.C.A.Cal., 9 F.2d 309, 310.
TEAM. Two or more horses, oxen, or other beasts
harnessed together for drawing. Inman v. C., M.
& St. P. R. Co., 60 Iowa 462, 15 N.W. 286; with
the vehicle to which they are customarily at-
tached; Dains v. Prosser, 32 Barb. (N.Y.) 291;
Wilcox v. Hawley, 31 N.Y. 655, in reference to an
exemption law. It may mean a vehicle with ani-
mals drawing it and used for loads instead of per-
sons. Hotchkiss v. Hoy, 41 Conn. 577. A horse
driven with other horses unharnessed; Elliott v.
Lisbon, 57 N.H. 29; and a single horse; Hoyt v.
Van Alstyne, 15 Barb. (N.Y.) 568; are held teams;
Jones v. Holland Furnace Co., 188 Wis. 394, 206
N.W. 57, 59; Tate v. Cody-Henderson Co., 11
Ala.App. 350, 66 So. 837, 838; American Mut. Lia-
bility Ins. Co. v. Witham, 124 Me. 240, 127 A. 719.
Automobiles may also be included in the meaning
of team. Bragdon v. Kellogg, 118 Me. 42, 105 A.
433, 434, 6 A.L.R. 669; Smith 'v. Howard, 42 R.I.
126, 105 A. 649, 650.
TEAM or THEAME. In old English law. A
royalty or privilege granted, by royal charter, to
a lord of a manor, for the having, restraining,
and judging of bondmen and villeins, with their
children, goods, and chattels, etc. Glan. lib. 5, c. 2.
TEAM TRACK. Analogous to freight depot in
that it bears the same relation to carload freight
that such depot bears to less than carload freight.
Shippers have no part in its construction or main-
tenance. There is a difference between "industrial
tracks" and "team tracks." The former are for
the handling of carload freight from and to plants.
The cost of construction is usually borne in part
by the owners of the plants. Carload freight is
switched to and from the plants irrespective of
whether the carrier performing the switching
service participated in the line haul or not. Mil-
ler Engineering Co. v. Louisiana Ry. & Na y . Co.,
144 La. 786, 81 So. 314, 317.
TEAM WORK. Within the meaning of an exemp-
tion law, this term means work done by a team
as a substantial part of a man's business; as in
farming, staging, express carrying, drawing of
freight, peddling, or the transportation of material
used or dealt in as a business. Hickok v. Thayer,
49 Vt. 375.
TEAMSTER. One who drives horses and a wagon
for the purpose of carrying goods for hire. Elder
v. Williams, 16 Nev. 416; Brusie v. Griffith, 34 Cal.
306, 91 Am.Dec. 695. He is liable as a common
carrier. Story, Bailm. § 496. A teamster is a
laborer; McElwaine v. Hosey, 135 Ind. 481, 35
N.E. 272. See Carrier.
Within an exemption statute, one who habitually makes
his living by use of team, harness and wagon or some
other form of horse-drawn vehicle. Wertz v. Hale, 212
Iowa, 294, 234 N.W. 534, 535.
TEARING OF WILL. Under statute providing
that will may be revoked by tearing, any act of
tearing of paper on which will is written, however
slight, constitutes an act of "tearing," if done with
intent to revoke the will, but no act of tearing or
cutting accomplishes such purpose unless done
with intent to revoke. Fleming v. Fleming, 367
Ill. 97, 10 N.E.2d 641, 642.
TECHNICAL. Belonging or peculiar to an art or
profession. Technical terms are frequently called
in the books "words of art."
Immaterial, not affecting substantial rights,
without substance. JEtna Ins. Co. v. Waco Co.,
Tex.Civ.App., 189 S.W. 315, 317; City of Hartselle
v. Culver, 216 Ala. 668, 114 So. 58, 60; Englebret-
son v. Industrial Accident Commission, 170 Cal.
793, 151 P. 421, 422; Jones v. State, 10 Okl.Cr. 216,
137 P. 121, 122.
TECHNICAL MORTGAGE. A true and formal
mortgage, as distinguished from other instru-
ments which, in some respects, have the charac-
ter of equitable mortgages. Harrison v. Annapo-
lis & E. R. R. Co., 50 Md. 514.
TEDDING. Spreading. Tedding grass is spread-
ing it out after it is cut in the swath. 10 East, 5.
TEDING-PENNY. In old English law. A small
tax or allowance to the sheriff from each tithing
of his county towards the charge of keeping
courts, etc. Cowell.
TEEP. In Hindu law. A note of hand; a promis-
sory note given by a native banker or money-
lender to zemindars and others, to . enable them
to furnish government with security for the pay-
ment of their rents. Wharton.
TEGULA. In the civil law. A tile. Dig. 19, 1,
18.
TEIND COURT. In Scotch law. A court which
has jurisdiction of matters relating to teinds, or
tithes.
TEIND MASTERS. Those entitled to tithes.
TEINDS. In Scotch law. A term corresponding
to tithes (q. v.) in English ecclesiastical law.
TEINLAND. Sax. In old English law. Land of
a thane or Saxon noble; land granted by the
crown to a thane or lord. Cowell; 1 Reeve, Eng.
Law, 5.
TELEGRAM. A telegraphic dispatch; a message
sent by telegraph.
TELEGRAM RACKET. Consists in a fictitious
communication such as by radiogram or telephone
call authorizing a trustee to pay out money. Cor-
dovano v. State, 61 Ga.App. 590, 7 S.E.2d 45, 47.
TELEGRAPH. In the English telegraph act of
1863, the word is defined as "a wire or wires used
for the purpose of telegraphic communication,
with any casing, coating, tube, or pipe inclosing
the same, and any apparatus connected therewith
for the purpose of telegraphic communication."
St. 26 & 27 Vict. c. 112, § 3. An apparatus or de-
vice for transmitting messages to a distant point.
State Public Utilities Com. v. Postal Telegraph-
Cable Co., 285 Ill. 411, 120 N.E. 795, 796, Any ap-
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paratus for transmitting messages by means of
electric currents and signals. Davis v. Pacific Tel-
ephone and Telegraph Co., 127 Cal. 312, 315, 316, 59
P. 698, 699.
TELEGRAPHI2E. A word occasionally used in
old English law to describe ancient documents or
written evidence of things past. Blount.
TELEPHONE. In a general sense, any instru-
ment or apparatus which transmits sound beyond
the limits of ordinary audibility. But, since the
recent discoveries in telephony, the name is techni-
cally and primarily restricted to an instrument or
device which transmits sound by means of elec-
tricity and wires similar to telegraphic wires. In
a secondary sense, however, being the sense in
which it is most commonly understood, the word
"telephone" constitutes a generic term, having
reference generally to the art of telephony as an
institution, but more particularly to the appara-
tus, as an entirety, ordinarily used in the transmis-
sion, as well as in the reception, of telephonic
messages. Hockett v. State, 105 Ind. 261, 5 N.E.
178, 55 Am.Rep. 201; State Public Utilities Com-
mission ex rel. Chicago Telephone Co. v. Postal
Telegraph-Cable Co., 285 Ill. 411, 120 N.E. 795,
796.
TELETYPE MACHINE. A telegraph machine in
general use in telegraph offices, which typewrites
the telegram as the message is received instead
of requiring an operator to receive it in the Morse
code and transcribe it. In re Teletype Mach. No.
33335, 126 Pa.Super. 533, 191 A. 210, 211.
TELEVISION. Seeing at a distance by electrical
means while a "motion picture exhibit" is pro-
duced by projecting upon a screen with the aid
of light rays images recorded upon a film in such
rapid and changing succession of exposures as to
give the optical effect of a continuous picture of
the objects even when in motion. The former di-
rectly employs natural phenomena; the latter,
mechanics. A notable objective difference is that
a motion picture may be re-exhibited as often as
desired for the life of the film but a television ex-
hibition once seen is gone forever so far as as-
sembly of the electronic waves upon which the
images are carried are concerned. Philadelphia.
Retail Liquor Dealers Ass'n v. Pennsylvania Liq-
uor Control Bd., 360 Pa. 269, 62 A.2d 53, 55, 4
A.L.R. 1212.
TELLER. One who numbers or counts. An offi-
cer of a bank who receives or pays out money.
Also one appointed to count the votes cast in a de-
liberative or legislative assembly or other meeting.
The name was also given to certain officers for-
merly attached to the English exchequer.
A considerable officer in the exchequer, of which officers
there are four, whose office is to receive all money due to
the king, and to give the clerk of the pells a bill to charge
him therewith. They also pay to all persons any money.
payable by the king, and make weekly and yearly books
of their receipts and payments, which they deliver to the
lord treasurer. Cowell; Jacob.
TELLERS IN PARLIAMENT. In the language of
parliament, the members of the house selected to
TEMPLE
count the members when a division takes place.
In the house of lords a division is effected by the
"non-contents" remaining within the bar, and the
"contents" going below it, a teller being appointed
for each party. In the commons the "ayes" go
into the lobby at one end of the house, and the
"noes" into the lobby at the other end, the house
itself being perfectly empty, and two tellers being
appointed for each party. May, Parl. Pr.; Brown.
TELIGRAPHUM. An Anglo-Saxon charter of
land. 1 Reeve, Eng. Law, c. 1, p. 10.
TELLTALES. In railroad practice ropes suspend-
ed from a wire across the track warning of a low
bridge. West v. Chicago, B. & Q. R. Co., 103 C.C.
A. 293, 179 F. 801.
TELLWORC. That labor which a tenant was
bound to do for his lord for a certain number of
days.
TEMENTALE, or TENEMENTALE. A tax of two
shillings upon every plow-land, a decennary.
TEMERE. Lat. In the civil law. Rashly; in-
considerately. A plaintiff was said temere litigare
who demanded a thing out of malice, or sued
without just cause, and who could show no ground
or cause of action. Brissonius.
TEMPERANCE. Habitual moderation in regard
to the indulgence of the natural appetites and
passions; restrained or moderate indulgence;
moderation; as temperance in eating and drink-
ing; temperance in the indulgence of joy or mirth.
People v. Dashaway Ass'n, 84 Cal. 123, 24 P. 277,
12 L.R.A. 117. Not synonymous with abstinence.
Mayfield v. Fidelity Casualty Co. of New York, 16
Ca1.App.2d 611, 61 P.2d 83, 89.
TEMPEST. A violent or furious storm; a cur-
rent of wind rushing with extreme violence, and
usually accompanied with rain or snow. Stover v.
Insurance Co., 3 Phila. (Pa.) 39; Thistle v. Union
Forwarding Co., 29 U.C.C.P. 84.
TEMPLARS. A religious order of knighthood, in-
stituted about the year 1119, and so called because
the members dwelt in a part of the temple of
Jerusalem, and not far from the sepulcher of our
Lord. They entertained Christian strangers and
pilgrims charitably, and their profession was at
first to defend travelers from highwaymen and
robbers. The order was suppressed A.D. 1307, and
their substance given partly to the knights of St.
John of Jerusalem, and partly to other religious
orders. Brown.
TEMPLE. Two English inns of court, thus called
because anciently the dwelling place of the
Knights Templar. On the suppression al the or-
der, they were purchased by some professors of
the common law, and converted into hospitia or
inns of court. They are called the "Inner" and
"Middle Temple," in relation to Essex House,
which was also a part of the house of the Tern-
plars, and called the "Outer Temple," because
situated without Temple Bar. Enc. Lond.
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TEMPORAL
TEMPORAL LORDS. The peers of England; the
bishops are not in strictness held to be peers, but
merely lords of parliament. 2 Steph.Comm. 330,
345.
TEMPORALIS. Lat. In the civil law. Tempo-
rary; limited to a certain time.
TEMPORALIS ACTIO. An action which could
only be brought within a certain period.
TEMPORALIS EXCEPTIO. A temporary excep-
tion which barred an action for a time only.
TEMPORALITIES. In English law. The lay fees
of bishops, with which their churches are endowed
or permitted to be endowed by the liberality of the
sovereign, and in virtue of which they become
barons and lords of parliament. Spelman. In a
wider sense, the money revenues of a church, de-
rived from pew rents, subscriptions, donations, col-
lections, cemetery charges, and other sources. See
Barabasz v. Kabat, 86 Md. 23, 37 A. 720.
TEMPORALITY. The laity; secular people.
TEMPORARILY. Lasting for a time only, exist-
ing or continuing for a limited time, not of long
duration, not permanent, transitory, changing, but
a short time. Young v. Povich, 121 Me. 141, 116
A. 26, 27, 29 A.L.R. 48; Burdine v. Sewell, 92 Fla.
375, 109 So. 648, 653; Vercruysse v. Ulaga, 229
Mich. 49, 201 N.W. 192, 193.
TEMPORARY. That which is to last for a limited
time only, as distinguished from that which is
perpetual, or indefinite, in its duration. Opposite
of permanent. Thus, temporary alimony is grant-
ed for the support of the wife pending the action
for divorce. Dayton v. Drake, 64 Iowa 714, 21
N.W. 158; Wohlfort v. Wohlfort, 116 Kan. 154,
225 P. 746, 748, 40 A.L.R. 538; Flamm v. City of
Passaic, 141 N.J.Misc. 362, 184 A. 748, 750.
A temporary receiver is one appointed to take
charge of property until a hearing is had and an
adjudication made. Boonville Nat. Bank v. Bla-
key, 47 C.C.A. 43, 107 F. 895.
As to temporary "Disability", "Insanity", "In-
junction", and "Statute" see those titles.
TEMPORE. Lat. In the time of. Thus, the
volume called "Cases tempore Holt" is a collection
of cases adjudged in the king's bench during the
time of Lord Holt. Wall.Rep. 398.
TEMPORIS EXCEPTIO. Lat. In the civil law.
A plea of time; a plea of lapse of time, in bar
of an action. Corresponding to the plea of pre-
scription, or the statute of limitations, in our law.
See Mackeld. Rom. Law, § 213.
TEMPUS. Lat. In the civil and old English law.
Time in general. A time limited; a season; e. g.,
tempus pessonis, mast time in the forest.
TEMPUS CONTINUUM. In the civil law. A con-
tinuous or absolute period of time. A term which
begins to run from a certain event, even though
he for whom it runs has no knowledge of the
event, and in which, when it has once begun to
run, all the days are reckoned as they follow one
another in the calendar. Dig. 3, 2, 8; Mackeld.
Rom. Law, § 195.
TEMPUS ENIM MODUS TOLLENDI OBLIGA-
TIONES ET ACTIONES, QUIA TEMPUS CUR-
RIT CONTRA DESIDES ET SUI JURIS CON-
TEMPTORES. For time is a means of destroying
obligations and actions, because time runs against
the slothful and contemners of their own rights.
Fleta, 1. 4, c. 5, § 12.
TEMPUS SEMESTRE. In old English law. The.
period of six months or half a year, consisting
of one hundred and eighty-two days. Cro.Jac. 166.
TEMPUS UTILE. In the civil law. A profitable-
or advantageous period of time. A term which be-
gins to run from a certain event, only when he for
whom it runs has obtained a knowledge of the
event, and in which, when it has once begun to
run, those days are not reckoned on which one
has no experiundi potestas;  e., on which one
cannot prosecute his rights before a court. Dig.
3, 6, 6; Mackeld. Rom. Law, § 195. A period of
time which runs beneficially: i. e. feast-days are
not included, nor does it run against one absent
in a foreign country, or on business of the repub-
lic, or detained by stress of weather. But one de-
tained by sickness is not protected from its run-
ning; for it runs where there is power to act
by an agent as well as where there is power to
act personally; and the sick man might have-
deputed his agent. Calvinus.
TENANCY.
The Estate of a Tenant
The estate of a tenant, as in the expressions
"joint tenancy," "tenancy in common."
The Term or Interest of a Tenant
The term or interest of a tenant for years or
at will. Sweet; Stone v. City of Los Angeles, 114
Cal.App. 192, 299 P. 838, 841.
It implies a right of possession in tenant exclusive even
of landlord. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d
472, 475.
General Tenancy
A tenancy which is not fixed and made certain
in point of duration by the agreement of the par-
ties. Brown v. Bragg, 22 Ind. 122.
Joint Tenancy
An estate in fee-simple, fee-tail, for life, for
years, or at will, arising by purchase or grant to
two or more persons. Joint tenants have one and
the same interest, accruing by one and the same
conveyance, commencing at one and the same
time, and held by one and the same undivided
possession. The grand incident of joint tenancy
is survivorship, by which the entire tenancy on the
decease of any joint tenant remains to the surviv-
ors, and at length to the last survivor. Pub.St.
Mass.1882, p. 1292; Simons v. McLain, 51 Kan. 153,
32 P. 919; Thornburg v. Wiggins, 135 Ind. 178, 34
N.E. 999, 22 L.R.A. 42, 41 Am.St.Rep. 422; Van
Ausdall v. Van Ausdall, 48 R.I. 106, 135 A. 850,
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TENANT
851; In re Huggins' Estate, 96 N.J.Eq. 275, 125
A. 27, 30. See, also, Tenancy by the Entirety, in-
fra.
Several Tenancy
A tenancy which is separate, and not held joint-
ly with another person.
Tenancy by the Entirety
Is created by a conveyance to husband and wife,
whereupon each becomes seized and possessed of
the entire estate and after the death of one the sur-
vivor takes the whole. Safe Deposit & Trust Co.
v. Tait, D.C.Md., 295 F. 429, 431; Dutton v. Buck-
ley, 116 Or. 661, 242 P. 626, 627; Settle v. Settle,
8 F.2d 911, 912, 56 App.D.C. 50, 43 A.L.R. 1079;
Raptes v. Cheros, 259 Mass. 37, 155 N.E. 787;
Gasner v. Pierce, 286 Pa. 529, 134 A. 494, 495;
Smith v. Russell, 172 App.Div. 793, 159 N.Y.S. 169,
170. And is available only to husband and wife.
Fairclaw v. Forrest, 76 U.S.App.D.C. 197, 130 F.2d
829, 832, 833, 143 A.L.R. 1154. It is essentially a
"joint tenancy," modified by the common-law the-
ory that husband and wife are one person, and sur-
vivorship is the predominant and distinguishing
feature of each. United States v. Jacobs, Ill. &
N. Y., 59 S.Ct. 551, 555, 306 U.S. 363, 83 L.Ed. 763.
The grand characteristic which distinguishes it from a
joint tenancy is that it can be terminated only by joint
action of husband and wife during their lives, while "joint
tenancy" may be terminated by one tenant's conveyance
of his interest. Milan v. Boucher, 285 Mass. 590, 189 N.E.
576, 578. In re Cotter's Will, 287 N.Y.S. 670, 673, 159 Misc.
324.
Tenancy in Common
Where property is held by several and distinct
titles by unity of possession, neither knowing his
own severally, and therefore they all occupy
promiscuously. Fullerton v. Storthz Bros. Inv.
Co., 190 Ark. 198, 77 S.W.2d 966, 968. The holding
of an estate in land by different persons under
different titles, but there must be unity' of pos-
session and each must have right to occupy the
whole in common with his cotenants. Fry v.
Dewees, 151 Kan. 488, 99 P.2d 844, 847.
Although "tenancy in common" is generally used with
reference to real property, a tenancy in common may ex-
ist in personalty as well. Haster v. Blair, 41 Cal.App.2d
896, 107 P.2d 933, 934. See, also, Tenant (Tenant in Com-
mon).
TENANT. In the broadest sense, one who holds
or possesses lands or tenements by any kind of
right or title, whether in fee, for life, for years,
at will, or otherwise. Cowell; Young v. Home
Telephone Co., Mo.App., 201 S.W. 635, 636; Kav-
anaugh v. Cohoes Power & Light Corporation, 114
Misc. 590, 187 N.Y.S. 216, 230.
In a more restricted sense, one who holds lands
of another; one who has the temporary use and
occupation of real property owned by another per-
son, (called the "landlord,") the duration and
terms of his tenancy being usually fixed by an
instrument called a "lease." Becker v. Becker,
13 App.Div. 342, 43 N.Y.S. 17; Bowe v. Hunking,
135 Mass. 383, 46 Am.Rep. 471; Clift v. White, 12
N.Y. 527; Lightbody v. Truelsen, 39 Minn. 310, 40
N.W. 67; Williams v. Treece, 184 Mo.App. 135, 168
S.W. 209, 211; Minneapolis Iron Store Co. v. Bran-
urn, 36 N.D. 355, 162 N.W. 543, 545, L.R.A.1917E,
298. One who occupies another's land or prem-
ises in subordination to such other's title and
with his assent, express or implied. In re Wil-
son's Estate, 349 Pa. 646, 37 A.2d 709, 710. One
renting land and paying for it either in money or
part of crop or equivalent. Wilcox & Co. v. Dein-
es, 119 Neb. 692, 230 N.W. 682, 684.
Strictly speaking, a "tenant" is a person who
holds land; but the term is also applied by anal-
ogy to personalty. Thus, we speak of a person
being tenant for life, or tenant in common, of
stock. Sweet.
Feudal Law
One who holds of another (called "lord" or "su-
perior") by some service; as fealty or rent.
Tenant at Will
One who holds possession of premises by per-
mission of owner or landlord, but without fixed
term. Wiedemann v. Brown, 190 Minn. 33, 250
N.W. 724; where lands or tenements are let by
one man to another, to have and to hold to him
at the will of the lessor, by force of which lease
the lessee is in possession. In this case the lessee
is called "tenant at will," because he hath no cer-
tain nor sure estate, for the lessor may put him
out at what time it pleaseth him. Litt. § 68;
Sweet. Post v. Post, 14 Barb. (N.Y.) 258; Spald-
ing v. Hall, 6 D.C. 125; Freedman v. Gordon, 220
Mass. 324, 107 N.E. 982, 983; Norton v. Averholtz-
er, 63 Cal.App. 388, 218 P. 637, 640,; O'Connor v.
Brinsfield, 212 Ala. 68, 101 So. 679, 680.
General
Joint tenants. Two or more persons to whom
are granted lands or tenements to hold in fee-
simple, fee-tail, for life, for years, or at will. 2
Bl.Comm. 179. Persons who own lands by a joint
title created expressly by one and the same deed
or will. 4 Kent, Comm. 357. Joint tenants have
one and the same interest, accruing by one and
the same conveyance, commencing at one and the
same time, and held by one and the same undivid-
ed possession. 2 Bl.Comm. 180. See, also, Tenan-
cy (Joint Tenancy).
Land tenant. See that title.
Quasi tenant at sufferance. An under-tenant,
who is in possession at the determination of an
original lease, and is permitted by the reversioner
to hold over.
Sole tenant. He that holds lands by his own
right only, without any other person being joined
with him. Cowell.
Tenant a volunte. L. Fr. A tenant at will.
Tenant at sufferance. One that comes into the
possession of land by lawful title, but holds over
by wrong, after the determination of his interest.
4 Kent, Comm. 116; 2 Bl.Comm. 150; Fielder v.
Childs, 13 Ala. 577; Pleasants v. Claghorn, 2 Miles
(Pa.) 304; Bright v. McOuat, 40 Ind. 525; Parker
v. Smith, 211 Ky. 624, 277 S.W. 986, 987; Lawer
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TENANT
v. Mitts, 33 Wyo. 249, 238 P. 654, 659; Stanley v.
Stembridge, 140 Ga. 750, 79 S.E. 842, 844; Cole-
man v. State ex rel. Carver, 119 Fla. 653, 161 So.
89, 91.
He has no estate nor title but only naked possession
without right and wrongfully, and stands in no privity to
landlord and is not entitled to notice to quit, and is a bare
licensee to whom landlord owes merely duty not wantonly
nor willfully to injure him. Margosian v. Markarian, 288
Mass. 197, 192 N.E. 612, 613; Welch v. Rice, 61 Wyo. 511,
159 P.2d 502, 506, 509.
Tenant by copy of court roll (shortly, "tenant
by copy") is the old-fashioned name for a copy-
holder. Litt. § 73.
Tenant by the curtesy. One who, on the death
of his wife seised of an estate of inheritance, after
having by her issue born alive and capable of in-
heriting her estate, holds the lands and tenements
for the term of his life. Co.Litt. 30a; 2 Bl.Comm.
126.
Tenant by the manner. One who has a less es-
tate than a fee in land which remains in the re-
versioner. He is so called because in avowries
and other pleadings it is specially shown in what
manner he is tenant of the land, in contradistinc-
tion to the veray tenant, who is called simply
"tenant." Ham. N.P. 393.
Tenant for life. One who holds lands or tene-
ments for the term of his own life, or for that of
any other person, (in which case he is called
"pur cuter vie,") or for more lives than one. 2
Bl.Comm. 120; In re Hyde, 41 Hun (N.Y.) 75.
Tenant for years. One who has the temporary
use and possession of lands or tenements not his
own, by virtue of a lease or demise granted to
him by the owner, for a determinate period of
time, as for a year or a fixed number of years.
2 Bl.Comm. 140.
Tenant from year to year. One who holds lands
or tenements under the demise of another, where
no certain term has been mentioned, but an annual
rent has been reserved. See 1 Steph.Comm. 271;
4 Kent, Comm. 111, 114. One who holds over, by
consent given either expressly or constructively,
after the determination of a lease for years. 4
Kent, Comm. 112. See Shore v. Porter, 3 Term, 16;
Rothschild v. Williamson, 83 Ind. 388; Hunter v.
Frost, 47 Minn. 1, 49 N.W. 327; Coffman v. Sam-
mons, 76 W.Va. 12, 84 S.E. 1061, 1063; Lawrence
v. Goodstein, 91 Misc.Rep. 19, 154 N.Y.S. 229, 231.
See, also, Year to Year, Tenancy from.
Tenant in capite. In feudal and old English
law. Tenant in chief; one who held immediately
under the king, in right of his crown and dignity.
2 Bl.Comm. 60.
Tenant in common. Tenants who hold the same
land together by several and distinct titles, but by
unity of possession, because none knows his own
severalty, and therefore they all occupy promiscu-
ously. 2 Bl.Comm. 191. Where two or more hold
the same land, with interests accruing under dif-
ferent titles, or accruing under the same title,
but at different periods, or conferred by words of
limitation importing that the grantees are to take
in distinct shares. 1 Steph.Comm. 323. See Cos-
ter v. Lorillard, 14 Wend., N.Y., 336; Taylor v.
Millard, 118 N.Y. 244, 23 N.E. 376, 6 L.R.A. 667;
Perry v. Jones, 48 Okl. 362, 150 P. 168, 169; Why-
man v. Johnston, 62 Colo. 461, 163 P. 76, 77; Stew-
art v. Young, 212 Ala. 426, 103 So. 44, 45. See, also,
Tenancy (Tenancy in Common).
Tenant in dower. This is where the husband
of a woman is seised of an estate of inheritance
and dies; in this case the wife shall have the third
part of all the lands and tenements whereof he
was seised at any time during the coverture, to
hold to herself for life, as her dower. Co.Litt. 30;
2 Bl.Comm. 129; Combs v. Young, 4 Yerg. (Tenn.)
225, 26 Am.Dec. 225.
Tenant in fee-simple (or tenant in fee). He who
has lands, tenements, or hereditaments, to hold to
him and his heirs forever, generally, absolute-
ly, and simply; without mentioning what heirs,
but referring that to his own pleasure, or to the
disposition of thl law. 2 Bl.Comm. 104; Litt. §
1; Dows v. Board of Com'rs of City of Bayonne,
117 N.J.L. 337, 188 A. 509, 510.
Tenant in severalty. One who holds lands and
tenements in his own right only, without any
other person being joined or connected with him
in point of interest during his estate therein. 2
Bl.Comm. 179.
Tenant in tail. One who holds an estate in fee-
tail, that is, an estate which, by the instrument
creating it, is limited to some particular heirs,
exclusive of others; as to the heirs of his body
or to the heirs, male or female, of his body.
Tenant in tail ex provisione viri. Where an
owner of lands, upon or previously to marrying.
a wife, settled lands upon himself and his wife,
and the heirs of their two bodies begotten, and
then died, the wife, as survivor, became tenant in
tail of the husband's lands, in consequence of the
husband's provision, (ex provisione viri.) Orig-
inally, she could bar the estate-tail like any other
tenant in tail; but the husband's intention having
been merely to provide for her during her widow-
hood, and not to enable her to bar his children
of their inheritance, she was early restrained from
so doing, by the statute 32 Hen. VII. c. 36. Brown.
Tenant of the demesne. One who is tenant of
a mesne lord; as, where A. is tenant of B., and C.
of A., B. is the lord, A. the mesne lord, and C.
tenant of the demesne. Ham. N. P. 392, 393.
Tenant paravaile. The under-tenant of land;
that is, the tenant of a tenant; one who held of a
mesne lord.
Tenant to the prcipe. Before the English
fines and recoveries act, if land was conveyed to
a person for life with remainder to another in tail,
the tenant in tail in remainder was unable to bar
the entail without the concurrence of the tenant
for life, because a common recovery could only
be suffered by the person seised of the land. In
such a case, if the tenant for life wished to cone ar
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TENEMENT•
in barring the entail, he usually conveyed his life-
estate to some other person, in order that the prce-
cipe in the recovery might be issued against the
latter, who was therefore called the "tenant to
the prcecipe." Williams, Seis. 169; Sweet.
Tenants by the verge. The "same nature as
tenants by copy of court roll, [i. e., copyholders.]
But the reason why they be called 'tenants by the
verge' is for that, when they will surrender their
tenements into the hands of their lord to the use
of another, they shall have a little rod (by the cus-
tome) in their hand, the which they shall deliver
to the steward or to the bailife, * * * and
the steward or bailife, according to the custome,
shall deliver to him that taketh the land the same
rod, or another rod, in the name of seisin; and
for this cause they are called 'tenants by the
verge,' but they have no other evidence [title-deed]
but by copy of court roll." Litt. § 78; Co.Litt. 61a.
TENANT-RIGHT. A kind of customary estate
in the north of England, falling under the general
class of copyhold, but distinguished from copyhold
by many of its incidents.
The so-called tenant-right of renewal is the ex-
pectation of a lessee that his lease will be renewed,
in cases where it is an estaklished practice to re-
new leases from time to time, as in the case of
leases from the crown, from ecclesiastical corpo-
rations, or other collegiate bodies. Strictly speak-
ing, there can be no right of renewal against the
lessor without an express compact by him to that
effect, though the existence of the custom often
influences the price in sales.
The Ulster tenant-right may be described as a
right on the tenant's part to sell his holding to
the highest bidder, subject to the existing or a rea-
sonable increase of rent from time to time, as cir-
cumstances may require, with a reasonable veto
reserved to the landlord in respect of the incom-
ing tenant's character and solvency. Mozley &
Whitley.
TENANT'S FIXTURES. This phrase signifies
things which are fixed to the freehold of the de-
mised premises, but which the tenant may detach
and take away, provided he does so in season.
Wall v. Hinds, 4 Gray (Mass.) 256, 270, 64 Am.
Dec. 64.
TENANTABLE REPAIR. Such a repair as will
render a house fit for present habitation.
TENCON. L. Fr. A dispute; a quarrel. Kel-
ham.
TEND. To have a leaning; serve, contribute,
or conduce in some degree or way, or have a more
or less direct bearing or effect; to be directed as
to any end, object, or purpose; to have a tend-
ency, conscious or unconscious, to any end, object
or purpose. Rogers v. State, 122 Tex.Cr.R. 331, 54
S.W.2d 1010, 1012.
In old English law. To tender or offer. Cowell.
TENDER. An offer of money; the act by which
one produces and offers to a person holding a
claim or demand against him the amount of mon-
ey which he considers and admits to be due, in
satisfaction of such claim or demand, without any
stipulation or condition. Kastens v. Ruland, 94 N.
J.Eq. 451, 120 A. 21, 22; Mondello v. Hanover
Trust Co., 252 Mass. 563, 148 N.E. 136, 137; Woot-
on v. Dahlquist, 42 Idaho, 121, 244 P. 407, 409; Mc-
Call Co. v. Hobbs-Henderson Co., 138 S.C. 435, 136
S.E. 762, 763.
The offer of performance, not performance itself, and,
when unjustifiably refused, places other party in default
and permits party making tender to exercise remedies for
breach of contract. Walker v. Houston, 215 Cal. 742,
12 P.2d 952, 953, 87 A.L.R. 937.
The actual proffer of money, as distinguished from mere
proposal or proposition to proffer it. Caplan v. Shaw, W.
Va., 30 S.E.2d 132, 140. Hence mere written proposal to
pay money, without offer of cash, is not "tender." Ward-
law v. Woodruff, 175 Ga. 515, 165 S.E. 557, 560.
"Tender," though usually used in connection
with an offer to pay money, is properly used in
connection with offer of property other than
money. Maxwell Implement Co. v. Fitzgerald, 85
Ind.App. 206, 146 N.E. 883, 885; Central Flour
Mills Co. v. Gateway Milling Co., Mo.App., 213 S.
W. 131, 134; In re Katzowitz, 214 App.Div. 429, 212
N.Y.S. 336, 338; Harrison v. Beals, 111 Or. 563,
222 P. 728, 731; Jose v. Aufderheide, 222 Mo.App.
524, 293 S.W. 476, 479.
Tender, in pleading, is a plea by defendant that
he has been always ready to pay the debt demand-
ed, and before the commencement of the action
tendered it to the plaintiff, and now brings it into
court ready to be paid to him, etc. Brown.
Legal tender is that kind of coin, money, or cir-
culating medium which the law compels a creditor
to accept in payment of his debt, when tendered
by the debtor in the right amount.
Tender of Amends
An offer by a person who has been guilty of any
wrong or breach of contract to pay a sum of
money by way of amends. If a defendant in an
action make tender of amends, and the plaintiff
decline to accept it, the defendant may pay the
money into court, and plead the payment into
court as a satisfaction of the plaintiff's claim.
Mozley & Whitley.
Tender of Issue
A form of words in a pleading, by which a par-
ty offers to refer the question raised upon it to
the appropriate mode of decision. The common
tender of an issue of fact by a defendant is ex-
pressed by the words, "and of this he puts himself
upon the country." Steph.Pl. 54, 230.
TENEMENT. This term, in its vulgar accepta-
tion, is only applied to houses and other buildings,
but in its original, proper, and legal sense it sig-
nifies everything that may be holden, provided it
be of a permanent nature, whether it be of a sub-
stantial and sensible, or of an unsubstantial, ideal,
kind. Thus, liberum tenementum, frank tene-
ment, or freehold, is applicable not only to lands
and other solid objects, but also to offices, rents,
commons, advowsons, franchises, peerages, etc.
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TENEMENT S
2 Bl.Comm. 16; Mitchell v. Warner, 5 Conn. 517;
Oskaloosa Water Co. v. Board of Equalization, 84
Iowa 407, 51 N.W. 18, 15 L.R.A. 296; Field v. Hig-
gins, 35 Me. 341.
Property held by tenant, everything of permanent nature
which may be holden, and, in more restrictive sense, house
or dwelling. Hughes v. Milby and Dow Coal and Mining
Co., 127 Okl. 30, 259 P. 559, 560.
Dominant Tenement
One for the benefit or advantage of which an
easement exists or is enjoyed.
Servient Tenement
One which is subject to the burden of an ease-
ment existing for or enjoyed by another tenement.
See Easement.
TENEMENTAL LAND. Land distributed by a
lord among his tenants, as opposed to the de-
mesnes which were occupied by himself and his
servants. 2 Bl.Comm. 90.
TENEMENTIS LEGATIS. An ancient writ, ly-
ing to the city of London, or any other corporation,
(where the old custom was that men might devise
by will lands and tenements, as well as goods and
chattels,) for the hearing and determining any
controversy touching the same. Reg.Orig. 244.
TENENDAS. In Scotch law. The name of a
clause in charters of heritable rights, which de-
rives its name from its first words, "tenendas
prcedictas terras;" it points out the superior of
whom the lands are to be holden, and expresses
the particular tenure. Ersk. Inst. 2, 3, 24.
TENENDUM. Lat. To be holden. It was used
to indicate the lord of whom the land was to be
held and the tenure by which it was to be held.
but, since all freehold tenures have been convert-
ed into socage, the tenendum is of no further
use, and is therefore joined in the habendum,—"to
have and to hold." 2 Bl.Comm. 298; 4 Cruise,
Dig. 26.
TENENS. A tenant; the defendant in a real ac-
tion.
TENENTIBUS IN ASSISA. NON ONERANDIS.
A writ that formerly lay for him to whom a dis-
seisor had alienated the land whereof he disseis-
ed another, that he should not be molested in as-
size for damages, if the disseisor had wherewith
to satisfy them. Reg. Orig. 214.
TENERE. Lat. In the civil law. To hold; to
hold fast; to have in possession; to retain.
In relation to the doctrine of possession, this term ex-
presses merely the fact of manual detention, or the cor-
poral possession of any object, without involving the ques-
tion of title; while habere (and especially possidere) de-
notes the maintenance of possession by a lawful claim;
i. e., civil possession, as distinguished from mere natural
possession.
TENERL The Latin name for that clause in a
bond in which the obligor expresses that he is
"held and firmly bound" to the obligee, his heirs,
etc.
TENET; TENUIT. Lat. He holds; he held. In
the Latin forms of the writ of waste against a
tenant, these words introduced the allegation of
tenure. If the tenancy still existed, and recovery
of the land was sought, the former word was used,
(and the writ was said to be "in the tenet.") If
the tenancy had already determined, the latter
term was used, (the writ being described as "in
the tenuit,") and then damages only were sought.
TENHEDED, or TIENHEOFED. In old English
law., A dean. Cowell.
TENMENTALE. The number of ten men, which
number, in the time of the Saxons, was called a
"decennary;" and ten decennaries made what was
called a "hundred." Also a duty or tribute paid
to the crown, consisting of two shillings for each
plowland. Enc.Lond.
TENNE. A term of heraldry, meaning orange
color. In engravings it should be represented by
lines in bend sinister crossed by others bar-ways.
Heralds who blazon by the names of the heavenly
bodies, call it "dragon's head," and those who em-
ploy jewels, "jacinth." It is one of the colors
called "stainand." Wharton.
TENOR. A term used in pleading to denote that
an exact copy is set out. 1 Chit.Crim.Law. 235.
By the tenor of a deed, or other instrument in
writing, is signified the matter contained therein,
according to the true intent and meaning thereof.
Cowell.
"Tenor," in pleading a written instrument, im-
ports that the very words are set out. "Pur-
port" does not import this, but is equivalent only
to "substance." Corn. v. Wright, 1 Cush. (Mass.)
65; Dana v. State, 2 Ohio St. 93; State v. Bonney,
34 Me. 384; State v. Atkins, 5 Blackf. (Ind.) 458;
State v. Chinn, 142 Mo. 507, 44 S.W. 245; Sauger-
ties Bank v. Delaware & Hudson Co., 204 App.Div.
211, 198 N.Y.S. 722, 723; State v. Collins, 297 Mo.
257, 248 S.W. 599, 602; Johns v. Rice, 165 Iowa, 233,
145 N.W. 290, 291.
The action of proving the tenor, in Scotland, is
an action for proving the contents and purport
of a deed which has been lost. Bell.
In Chancery Pleading
A certified copy of records of other courts re-
moved in chancery by certiorari. Gres.Eq.Ev. 309.
TENOR EST QUI LEGEM DAT FEUDO. It is
the tenor [of the feudal grant] which regulates
its effect and extent. Craigius, Jus Feud. (3d Ed.)
66; Broom, Max. 459.
TENORE INDICTAMENTI MITTENDO. A writ
whereby the record of an indictment, and the pro-
cess thereupon, was called out of another court
into the queen's bench. Reg.Orig. 69.
TENORE PRZESENTIUM. By the tenor of these
presents, i. e., the matter contained therein, or
rather the intent and meaning thereof. Cowell.
TENSERL zE. A sort of ancient tax or military
contribution. Wharton.
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TERM
TENT. A shelter of flexible material supported
by poles stretched by cords that are secured by
pegs in the ground. Knowles v. State, 19 Ala.App.
476, 98 So. 207, 208; City of St. Louis v. Nash, 266
Mo. 523, 181 S.W. 1145, 1146, Ann.Cas.1918B, 134;
Killman v. State, 2 Tex.App. 222, 28 Am.Rep. 432.
TENTATES PANIS. The essay or assay of bread.
Blount.
TENTERDEN'S ACT, In English law. The stat-
ute 9 Geo. IV. c. 14, taking its name from Lord
Tenterden, who procured its enactment, which is
a species of extension of the statute of frauds,
and requires the reduction of contracts to writing.
TENTHS. In English law. A temporary aid is-
suing out of personal property, and granted to
the king by parliament; formerly the real tenth
part of all the movables belonging to the subject.
1 Bl.Comm. 308.
In English ecclesiastical law. The tenth part
of the annual profit of every living in the kingdom,
formerly paid to the pope, but by statute 26 Hen.
VIII. c. 3, transferred to the crown, and after-
wards made a part of the fund called "Queen
Anne's Bounty." 1 Bl.Comm. 284-286.
TENUIT. A term used in stating the tenure in
an action for waste done after the termination of
the tenancy. See Tenet.
TENURA. In old English law. Tenure.
TENURA EST PACTIO CONTRA COMMUNEM
FEUD! NATURAM AC RATIONEM, IN CON-
TRACTU INTERPOSITA. Wright, Ten. 21. Ten-
ure is a compact contrary to the common nature
and reason of the fee, put into a contract.
TENURE. The mode or system of holding lands
or tenements in subordination to some superior,
which, in the feudal ages, was the leading charac-
teristic of real property.
Tenure is the direct result of feudalism, which separated
the dominium directum, (the dominion of the soil, ) which
is placed mediately or immediately in the crown, from the
dominion utile, (the possessory title, ) the right to the
use and profits in the soil, designated by/the term "sei-
sin," which is the highest interest a subject can acquire.
Wharton: Kavanaugh v. Cohoes Power & Light Corpora-
tion, 187 N.Y.S. 216, 231, 114 Misc. 590.
Wharton gives the following list of tenures which were
ultimately developed:
Lay Tenures
I. Frank tenement, or freehold. (1) The military ten-
ures (abolished, except grand serjeanty, and reduced to
free socage tenures) were : Knight service proper, or ten-
ure in chivalry ; grand serjeanty ; cornage. (2) Free soc-
age, or plow-service; either petit serjeanty, tenure in
burgage, or gavelkind.
II. Villeinage. (1) Pure villeinage, (whence copyholds
at the lord's [nominal] will, which is regulated according
to custom). (2) Privileged villeinage, sometimes called
"villein socage," (whence tenure in ancient demesne,
which is an exalted species of copyhold, held according to
custom, and not according to the lord's will, ) and is of
three kinds : Tenure in ancient demesne ; privileged copy-
holds, customary freeholds, or free copyholds; copyholds
of base tenure.
Spiritual Tenures
I. Frankalmoigne, or free alms.
II. Tenure by divine service.
In its general sense, a mode of holding or oc-
cupying. Thus, we speak of the tenure of an of-
fice, meaning the manner in which it is held, es-
pecially with regard to time, (tenure for life, ten-
ure during good behavior,) and of tenure of land
in the sense of occupation or tenancy, especially
with reference to cultivation and questions of
political economy; e. g., tenure by peasant pro-
prietors, cottiers, etc. Sweet. See Bard v. Grun-
dy, 2 Ky. 169; People v. Waite, 9 Wend. (N.Y.) 58;
Barrett v. Duff, 114 Kan. 220, 217 P. 918, 922;
People ex rel. McCoy v. McCahey, 296 Ill.App.
310, 15 N.E.2d 988, 993.
TENURE BY DIVINE SERVICE. Where an ec-
clesiastical corporation, sole or aggregate, holds
land by a certain divine service; as, to say prayers
on a certain day in every year, "or to distribute
in almes to an, hundred poore men an hundred
pence at such a day." Litt. § 137.
TENURE IN OFFICE. Right to perform duties
and receive emoluments thereof. State ex rel.
Daly v. City of Toledo, 142 Ohio St. 123, 50 N.E.2d
338, 342.
TERCE. In Scotch law. Dower; a widow's right
of dower, or a right to a life estate in a third part
of the lands of which her husband died seised.
TERCER. In Scotch law. A widow that possess-
es the third part of her husband's land, as her
legal jointure. 1 Kames, Eq. pref.
TERCERONE. A term applied in the West In-
dies to a person one of whose parents was white
and the other a mulatto. See Daniel v. Guy, 19
Ark. 131.
TERM. A word or phrase; an expression; par-
ticularly one which possesses a fixed and known
meaning in some science, art, or profession.
A fixed period, a determined or , prescribed du-
ration. Carpenter v. Okanogan County, 163 Wash.
18, 299 P. 400, 404.
Civil Law
A space of time granted to a debtor for dis-
charging his obligation. Poth. Obl. pt. 2, c. 3,
art. 3, § 1; Civ.Code La. art. 2048.
Estates
Bounds, limitation, or extent of time for which
an estate is granted; as when a man holds an es-
tate for any limited or specific number of years,
which is called his "term," and he himself is call-
ed, with reference to the term he so holds, the
"termor," or "tenant of the term." Gay Mfg. Co.
v. Hobbs, 128 N.C. 46, 38 S.E. 26, 83 Am.St.Rep.
661; Sanderson v. Scranton, 105 Pa. 472; Hurd v.
Whitsett, 4 Colo. 84; Rooney v. City of Omaha, 105
Neb. 447, 181 N.W. 143, 144; Curry v. Bacharach
Quality Shops, 271 Pa. 364, 117 A. 435, 438.
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TERM
Of Court
When used with reference to a court, signifies
the space of time during which the court holds
a session. A session signifies the time during the
term when the • court sits for the transaction of
business, and the session commences when the
court convenes for the term, and continues until
final adjournment, either before or at the expira-
tion of the term. The term of the court is the
time prescribed by law during which it may be
in session. The session of the court is the time
of its actual sitting. Lipari v. State, 19 Tex.App.
431; Conkling v. Ridgely, 112 Ill. 36, 1 N.E. 261,
54 Am.Rep. 204; Lanier v. Shayne, 85 Fla. 212, 95
So. 617, 618; Trower v. Mudd, Mo.App., 242 S.W.
993, 994. But "term" and "session" are often
used interchangeably. Nation v. Savely, 127 Okl.
117, 260 P. 32, 35; Muse v. Harris, 122 Okl. 250, 254
P. 72, 73; Lewis County Pub. Co. v. Lewis County
Court, 75 W.Va. 305, 83 S.E. 993, 995.
General
General term. A phrase used in some jurisdic-
tions to denote the ordinary session of a court,
for the trial and determination of causes, as dis-
tinguished from a special term, for the hearing of
motions or arguments or the despatch of various
kinds of formal business, or the trial of a special
list or class of cases. Or it may denote a sit-
ting of the court in banc. State v. Eggers, 152
Mo. 485, 54 S.W. 498.
Regular term. A term begun at the time ap-
pointed by law, and continued, in the discretion
of the court, to such time as it may appoint, con-
sistent with the law. Wightman v. Karsner, 20
Ala. 451; Glebe v. State, 106 Neb. 251, 183 N.W.
295, 296; Carter v. State, 14 Ga.App. 242, 80 S.E.
533, 534; State v. Thompson, 100 W.Va. 253, 130
S.E. 456, 460; Ex parte Daly, 66 Fla. 345, 63 So.
834, 835.
Special term. In New York practice, that
branch of the court which is held by a single
judge for hearing and deciding in the first instance
motions and causes of equitable nature is called
the "special term," as opposed to the "general
term," held by three judges (usually) to hear ap-
peals. Abbott; Gracie v. Freeland, 1 N.Y. 232.
Term attendant on the inheritance. See Attend-
ant Terms.
Term fee. In English practice. A certain sum
which a solicitor is entitled to charge to his client,
and the client to recover, if successful, from the
unsuccessful party; payable for every term in
which any proceedings subsequent to the sum-
mons shall take place. Wharton.
Term for deliberating. The time given to the
beneficiary heir, to examine if it be for his interest
to accept or reject the succession which has fallen
to him. Civ.Code La. art. 1033.
Term for years. An estate for years and the
time during which such estate is to be held are
each called a "term;" hence the term may ex-
pire before the time, as by a surrender. Co.Litt.
45.
Term in gross. A term of years is said to be
either in gross (outstanding) or attendant upon
the inheritance. It is outstanding, or in gross,
when it is unattached or disconnected from the es-
tate or inheritance, as where it is in the hands
of some third party having no interest in the
inheritance; it is attendant, when vested in some
trustee in trust for the owner of the inheritance.
Brown.
Term of lease. The word "term," when used in
connection with a lease, means the period which
is granted for the lessee to occupy the premises,
and does not include the time between the mak-
ing of the lease and the tenant's entry. Young v.
Dake, 5 N.Y. 463, 55 Am.Dec. 356; De Pauw Uni-
versity v. United Electric Coal Cos., 299 Lll.App.
339, 20 N.E.2d 146, 149.
Term of office. The period during which elected
officer or appointee is entitled to hold office, per-
form its functions, and enjoy its privileges and
emoluments. State v. Knight, 76 Mont. 71, 245 P.
267, 268; Wilson v. McCarron, 112 Me. 181, 91 A.
839, 840; State v. Board of Com'rs of Sierra
County, 29 N.M. 209, 222 P. 654, 655, 31 A.L.R. 1310;
State v. Oklahoma City, 38 Okl. 349, 134 P. 58, 59,
60; Bayley v. Garrison, 190 Cal. 690, 214 P. 871,
872.
Term probatory. The period of time allowed
to the promoter of an ecclesiastical suit to pro-
duce his witnesses, and prove the facts on which
he rests his case. Coote, Ecc.Pr. 240, 241.
Term to conclude. In English ecclesiastical
practice. An appointment by the judge of a time
at which both parties are understood to renounce
all further exhibits and allegations.
Term to propound all things. In English ec.^.1e-
siastical practice. An appointment by the judge
of a time at which both parties are to exhibit all
the acts and instruments which make for their
respective causes.
In the Law of Contracts and in Court Practice.
The word is generally used in the plural, and
"terms" are conditions; propositions stated or
promises made which, when assented to or accept-
ed by another, settle the contract and bind the
parties. Webster. See Hutchinson v. Lord, 1
Wis. 313, 60 Am.Dec. 381; State v. Fawcett, 58
Neb. 371, 78 N.W. 636; Nakdimen v. Ft. Smith &
Van Buren Bridge Dist., 115 Ark. 194, 172 S.W.
272, 275.
Special terms. Peculiar or unusual conditions
imposed on a party before granting some applica-
tion to the favor of the court.
Under terms. A party is said to be under terms
when an indulgence is granted to him by the
court in its discretion, on certain conditions.
Thus, when an injunction is granted ex parte, the
party obtaining it is put under terms to abide by
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TERRA
such order as to damages as the court may make
at the hearing. Mozley & Whitley.
TERM INSURANCE. See Insurance.
TERMES DE LA LEY. Terms of the law, The
name of a lexicon of the law French words and
other technicalities of legal language in old times.
TERMINABLE PROPERTY. This name is some-
times given to property of such a nature that its
duration is not perpetual or indefinite, but is lim-
ited or liable to terminate upon the happening of
an event or the expiration of a fixed term; e. g.,
a leasehold, a life-annuity, etc.
TERMINATE. To put an end to; to make to
cease; to end. Towne v. Towne, 117 Mont. 453,
159 P.2d 352, 357.
TERMINATING BUILDING SOCIETIES. So-
cieties, in England, 'Where the members commence
their monthly contributions on a particular day,
and continue to pay them until the realization of
shares to a given amount for each member, by
the advance of the capital of the society to such
members as required it, and the payment of inter-
est as well as principal by them, so as to insure
such realization within a given period of years.
They have been almost superseded by permanent
building societies. Wharton.
TERMINATION OF CONDITIONAL CON-
TRACT. To abrogate so much of it as remains
unperformed, doing away with existing agree-
ment under agreed terms and consequences.
Sanborn v. Ballanfonte, 98 Cal.App. 482, 277 P.
152, 155. To put an end to all of the unperformed
portions thereof. Blodgett v. Merritt Annex Oil
Co., 19 Cal.App.2d 169, 65 P.2d 123, 125.
TERMINATION OF EMPLOYMENT. Within
policies providing that insurance should cease im-
mediately upon termination of employment, means
a complete severance of relationship of employer
and employee. Edwards v. Equitable Life Assur.
Soc. of United States, 296 Ky. 448, 177 S.W.2d 574,
577, 578; Peters v. /Etna Life Ins. Co. of Hart-
ford, Conn., 279 Mich. 663, 273 N.W. 307, 308.
TERMINER. L. Fr. To determine. See Oyer
and Terminer.
TERMINI. Lat. Ends; bounds; limiting or ter-
minating points.
TERM/NO. In Spanish law. A common; com-
mon land. Common because of vicinage. White,
New Recop. b. 2, tit. 1, c. 6, § 1, note.
TERMINUM. A day given to a defendant. Spel-
man.
TERMINUM QUI PRETERIIT, WRIT OF ENTRY
AD. A writ which lay for the reversioner, when
the possession was withheld by the lessee, or a
stranger, after the determination of a lease for
years. Brown.
The phrases "terminus a quo" and "terminus
ad quern" are used, respectively, to designate
the starting point and terminating point of a pri-
vate way. In the case of a street, road, or rail-
way, either end may be, and commonly is, re-
ferred to as the "terminus."
TERMINUS ANNORUM CERTUS DEBET ESSE
ET DETERMINATUS. Co. Litt. 45. A term of
years ought to be certain and determinate.
TERMINUS ET FEODUM NON POSSUNT CON-
STARE SIMUI IN UNA EADEMQUE PERSONA.
Plowd. 29. A term and the fee cannot both be
in one and the same person at the same time.
TERMINUS HOMINIS. In English ecclesiastical
practice. A time for the determination of appeals,
shorter than the terminus juris, appointed by the
judge. Hallifax, Civil Law, b. 3, c. 11, no. 36.
TERMINUS JURIS. In English ecclesiastical
practice. The time of one or two years, allowed
by law ,for the determination of appeals. Halli-
fax, Civil Law, b. 3, c. 11, no. 38.
TERMOR. He that holds lands or tenements for
a term of years or life. But we generally confine
the application of the word to a person entitled
for a term of years. Mozley & Whitley.
TERMS TO BE UNDER. A party is said to be
under terms, when an indulgence is granted to
him by the court in its discretion, on certain con-
ditions. Thus, when an injunction is granted ex
parte, the party obtaining it is put under terms to
abide by such order as to damages as the court
may make at the hearing. Moz. & W.
TERRA. Lat. Earth; soil; arable land. Ken-
nett, Gloss.
TERRA AFFIRMATA. Land let to farm.
TERRA BOSCALIS. Woody land.
TERRA CULTA. Cultivated land.
TERRA DEBILIS. Weak or barren land.
TERRA DOMINICA, or INDOMINICATA. The
demesne land of a manor. Cowell.
TERRA EXCULTABILIS. Land which may be
plowed. Mong. Ang. i. 426.
TERRA EXTENDENDA. A writ addressed to
an escheator, etc., that he inquire and find out
the true yearly value of any land, etc., by the aath
of twelve men, and to certify the extent into the
chancery. Reg. Writs, 293.
TERRA FRUSCA, or FRISCA. Fresh land, not
lately plowed. Cowell.
TERRA HYDATA. Land subject to the payment
of hydage. Selden.
TERRA INSTAURATA. See Instaurum,
TERMINUS. Boundary; a limit, either of space
or time.
TERRA LUCRABILIS. Land gained from the sea
or inclosed out of a waste. Cowell.
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TERRA
TERRA NORMANORUM. Land held by a Nor-
man. Paroch. Antiq. 197.
TERRA NOVA. Land newly converted from
wood ground or arable. Cowell.
TERRA MANENS VACUA OCCUPANT! CON-
CEDITUR. 1 Sid. 347. Land lying unoccupied is
given to the first occupant.
TERRA PUTURA. Land in forests, held by the
tenure of furnishing food to the keepers therein.
4 Inst. 307.
TERRA SABULOSA. Gravelly or sandy ground.
TERRA. SALICA. In Salic law. The land of the
house; the land within 'that inclosure which be-
Jonged to a German house. No portion of the in-
heritance of Salic land passes to a woman, but
this the male sex acquires; that is, the sons suc-
ceed in that inheritance. Lex Salic. tit. 62, § 6.
TERRA TESTAMENTALIS. Gavel-kind land, be-
ing disposable by will. Spelman.
TERRA TRANSIT CUM ONERE. Land passes
with the incumbrances. Co.Litt. 231; Broom,
Max. 437, 630.
TERRA VESTITA. Land sown with corn. Cow-
ell.
TERRA WAINABILIS. Tillable land. Cowell.
TERRA WARRENATA. Land that has the lib-
erty of free-warren.
TERRIE DOMINICALES REGIS. The demesne
lands of the crown.
TERRAGE. In old English law. A kind of tax
or charge on land; a boon or duty of plowing,
reaping, etc. Cowell.
TERRAGES. An exemption from all uncertain
services. Cowell.
TERRARIUS. In old English law. A landholder.
TERRE-TENANT. He who is literally in the
occupation or possession of the land, as distin-
guished from the owner out of possession. But,
in a more technical sense, the person who is seised
of the land, though not in actual occupancy of it,
and locally, in Pennsylvania, one who purchases
and takes land subject to the existing lien of a
mortgage or judgment against a former owner.
See Dengler v. Kiehner, 13 Pa. 38, 53 Am.Dec.
441; Hulett v. Insurance Co., 114 Pa. 142, 6 A. 554;
Commonwealth Trust Co. of Pittsburgh v. Har-
kins, 312 Pa. 402, 167 A. 278, 280.
TERRIER. In English law. A landroll or sur-
vey of lands, containing the quantity of acres, ten-
ants' names, and such like; and in the exchequer
there is a terrier of all the glebe lands in Eng-
land, made about 1338. In general, an ecclesias-
tical terrier contains a detail of the temporal pos-
sessions of the church in every parish. Cowell;
Tomlins; Mozley & Whitley.
TERRIS BONIS ET CATALLIS REHABENDIS
POST PURGATIONEM. A writ for a clerk to
recover his lands, goods, and chattels, formerly
seized, after he had cleared himself of the felony
of which he was accused, and delivered to his or-
dinary to be purged. .Reg. Orig.
TERMS ET CATALLIS TENTIS ULTRA DEBIT-
UM LEVATUM. A judicial writ for the restoring
of lands or goods to a debtor who is distrained
above the amount of the debt. Reg. Jud.
TERRIS LIBERANDIS. A writ that lay for a
man convicted by attaint, to bring the record and
process before the king, and take a fine for his
imprisonment, and then to deliver to him his lands
and tenements again, and release him of the strip
and waste. Reg. Orig. 232. Also it was a writ
for the delivery of lands to the heir, after homage
and relief performed, or upon security taken that
he should perform them. Orig. 293.
TERRITORIAL, TERRITORIALITY.  These
terms are used to signify connection with, or lim-
itation with reference to, a particular country or
territory. Thus, "territorial law" is the correct
expression for the law of a particular country or
state, although "municipal law" is more common.
"Territorial waters" are that part of the sea ad-
jacent to the coast of a given country which is by
international law deemed to be within the sover-
eignty of that country, so that its courts have
jurisdiction over offenses committed on those wa-
ters, even by a person on board a foreign ship.
Sweet.
TERRITORIAL COURTS. The courts established
in the territories of the United States.
TERRITORIAL JURISDICTION. Territory over
which a government or a subdivision thereof has
jurisdiction. State v. Cox, 106 Utah 253, 147 P.2d
858, 861.
Jurisdiction considered as limited to cases aris-
ing or persons residing within a defined territory,
as, a county, a judicial district, etc. The author-
ity of any court is limited by the boundaries thus
fixed. See Phillips v. Thralls, 26 Kan. 781.
TERRITORIAL PROPERTY. The land and wa-
ter over which the state has jurisdiction and con-
trol whether the legal title be in the state itself
or in private individuals. Lakes and waters whol-
ly within the state are its property and also the
marginal sea within the three-mile limit, but bays
and gulfs are not always recognized as state prop-
erty.
TERRITORY. A part of a country separated
from the rest, and subject to a particular juris-
diction.
American Law
A portion of the United States, not within the
limits of any state, which has not yet been admit-
ted as a state of the Union, but is organized, with
a separate legislature, and with executive and ju-
dicial officers appointed by the president. See Ex
parte Morgan, D.C.Ark., 20 F. 298, 304; People v.
Daniels, 6 Utah, 288, 22 P. 159, 5 L.R.A. 444; Ex
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TESTAMENT
parte Heikich Terui, 187 Cal. 20, 200 P. 954, 956, 17
A.L.R. 630.
Const. Amend. 18, prohibiting the transportation of in-
toxicating liquor within or the importation thereof into the
United States and territory subject to its jurisdiction, uses
the word "territory" as meaning the regional areas of
land and adjacent waters over which the United States
claims and exercises dominion and control as a sovereign
power. Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct.
504, 507, 67 L. Ed. 894, 27 A.L.R. 1306; International Mer-
cantile Marine v. Stuart, D.C.N.Y., 285 F. 78, 81; State v.
Morton, 31 Idaho, 329, 171 P. 495, 496.
TERRITORY OF A JUDGE. The territorial ju-
risdiction of a judge; the bounds, or district,
within which he may lawfully exercise his judicial
authority. Phillips v. Thralls, 26 Kan. 781.
TERROR. Alarm; fright; dread; the state of
mind induced by the apprehension of hurt from
some hostile or threatening event or manifesta-
tion; fear caused by the appearance of danger.
In an indictment for riot, it must be charged that
the acts done were "to the terror of the people."
See Arto v. State, 19 Tex.App. 136.
TERTIA DENIJNCIATIO. Lat. In old English
law. Third publication or proclamation of intend-
ed marriage.
TERTIUS INTERVENIENS. Lat. In the civil
law. A third person intervening; a third per-
son who comes in between the parties to a suit;
one who interpleads. Gilbert's Forum Rom. 47.
TEST. To bring one to a trial and examination,
or to ascertain the truth or the quality or fitness
of a thing.
Something by which to ascertain the truth re-
specting another thing; a criterion, gauge, stan-
dard, or norm.
In public law, an inquiry or examination ad-
dressed to a person appointed or elected to a pub-
lic office, to ascertain his qualifications therefor,
but particularly a scrutiny of his political, reli-
gious, or social views, or his attitude of past and
present loyalty or disloyalty to the government
under which he is to act. See Attorney General
v. Detroit Common Council, 58 Mich. 213, 24 N.W.
887, 55 Am.Rep. 675; People v. Hoffman, 116 Ill.
587, 5 N.E. 596, 56 Am.Rep. 793; Rogers v. Buf-
falo, 51 Hun 637, 3 N.Y.S. 674.
TEST ACT. The statute 25 Car. II. c. 2, which
directed all civil and military officers to take the
oaths of allegiance and supremacy, and make the
declaration against transubstantiation, within six
months after their admission, and also within the
same time receive the sacrament according to the
usage of the Church of England, under penalty of
£500 and disability to hold the office. 4 Bl.Comm.
58, 59. This was abolished by St. 9 Geo. IV. c. 17,
so far as concerns receiving the sacrament, and
a new form of declaration was substituted.
TEST ACTION. An action selected out of a
considerable number of suits, concurrently de-
pending in the same court, brought by severar
plaintiffs against the same defendant, or by one
plaintiff against different defendants, all similar
in their circumstances, and embracing the same
questions, and to be supported by the same evi-
dence, the selected action to go first to trial, (un-
der an order of court equivalent to consolidation,)
and its decision to serve as a test of the right of
recovery in the others, all parties agreeing to
be bound by the result of the test action.
TEST OATH. An oath required to be taken as a
criterion of the fitness of the person to fill a pub-
lic or political office; but particularly an oath of
fidelity and allegiance (past or present) to the
established government.
TEST-PAPER. In practice. A paper or instru-
ment shown to a jury as evidence. A term used
in the Pennsylvania courts. Depue v. Clare, 7
Pa. 428.
TESTA DE NEVIL. An ancient and authentic
record in two volumes, in the custody of the king's
remembrancer in the exchequer, said to be com-
piled by John de Nevil, a justice itinerant, in the
eighteenth and twenty-fourth years of Henry III.
Cowell. These volumes were printed in 1807, un-
der the authority of the commissioners of the
public records, and contain an account of fees
held either immediately of the king or of others
who held of the king in capite; fees holden in
frankalmoigne; serjeanties holden of the king;
widows and heiresses of tenants in capite, whose
marriages were in the gift of the king; churches
in the gift of the king; escheats, and sums paid
for scutages and aids, especially within the coun-
ty of Hereford. Cowell; Wharton.
TESTABLE. A person is said to be testable when
he has capacity to make a will; a man of twenty-
one years of age and of sane mind is testable.
TESTACY. The state or condition of leaving a
will at one's death. Opposed to "intestacy."
TESTAMENT. A disposition of personal proper-
ty to take place after the owner's decease, accord-
ing to his desire and direction. Pluche v. Jones,
C.C.A.Tex., 54 F. 860, 865, 4 C.C.A. 622; Aubert's
Appeal, 109 Pa. 447, 1 A. 336; Conklin v. Egerton,
21 Wend., N.Y., 436; Ragsdale v. Booker, 2 Strob.
Eq. (S.C.) 348; In re Lester's Will, 100 N.J.Eq.
521, 136 P. 322.
The act of last will, clothed with certain solem-
nities, by which the testator disposes of his prop-
erty, either universally, or by universal title, or
by particular title. Civ.Code La. art. 1571.
The common usage the world over is to employ the
words "will," "testament," and "last will and testament"
as exactly synonymous. Occidental Life Ins. Co. v. Pow-
ers, 192 Wash. 475, 74 P.2d 27, 32, 114 A.L.R. 531. But
strictly speaking, the term testament denotes only a will
of personal property; a will of land not being called a
"testament." Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d
644, 647, 134 A.L.R. 876. The word "testament" is now
seldom used, except in the heading of a formal will, which
usually begins : "This is the last will and testament of me,
A. B.," etc. Sweet.
The true declaration of a man's last will as to that
which he would have to be done, aster his death. It is
compounded, according to Justinian, from testatio mentis;
but the better opinion is that it is a simple word formed
from the Latin testor, and not a compound word. Mozley
& Whitley.
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TESTAMENT
Military Testament
In English law. A nuncupative will, that is, one
made by word of mouth, by which a soldier may
dispose of his goods, pay, and other personal chat-
tels, without the forms and solemnities which the
law requires in other cases. St. 1 Vict. c. 26, § 11.
Mutual Testaments
Wills made by two persons who leave their ef-
fects reciprocally to the survivor.
Mystic Testament
A form of testament made under Spanish law
which prevailed in Louisiana and California. See
Broutin v. Vassant, 5 Mart. O.S. (La.) 182; Schoul.
Wills § 9. In the law of Louisiana. A sealed tes-
tament. The mystic or secret testament, other-
wise called the "closed testament," is made in the
following manner: The testator must sign his dis-
positions, whether he has written them himself or
has caused them_to be written by another person.
The paper containing those dispositions, or the pa-
per serving as their envelope, must–be closed and
sealed. The testator shall present it thus closed
and sealed to the notary and to seven witnesses,
or he shall cause it to be closed and sealed in their
presence. Then he shall declare to the notary, in
presence of the witnesses, that that paper contains
his testament written by himself, or by another by
his direction, and signed by him, the testator.
The notary shall then draw up the act of super-
scription, which shall be written on that paper,
or on the sheet that serves as its envelope, and
that act shall be signed by the testator, and by
the notary and the witnesses. Civ.Code La. art.
1584.
TESTAMENTA CUM DUO INTER SE PUGNAN-
TIA REPERIUNTUR, ULTIMUM RATUM EST;
SIC EST, CUM DUO INTER SE PUGNANTIA
REPERIUNTUR IN EODEM TESTAMENTO.
Co.Litt. 112. When two conflicting wills are found,
the last prevails; so it is when two conflicting
clauses occur in the same will.
TESTAMENTA LATISSIMAM INTERPRETA-
TIONEM HABERE DEBENT. Jenk.Cent. 81.
Wills ought to have the broadest interpretation.
TESTAMENTARY. Pertaining to a will or testa-
ment; as testamentary causes. Derived from,
founded on, or appointed by a testament or will;
as a testamentary guardian, letters testamentary,
etc.
A paper, instrument, document, gift, appoint-
ment, etc., is said to be "testamentary" when it
is written or made so as not to take effect until
after the death of the person making it, and to
be revocable and retain the property under his
control during his life, although he may have be-
lieved that it would operate as an instrument of
a different character. Sweet. See In re Murphy's
Estate, 193 Wash. 400, 75 P.2d 916, 920.
Letters Testamentary
The formal instrument of authority and ap-
pointment given to an executor by the proper
court, upon the admission of the will to probate,
empowering him to enter upon the discharge of
his office as executor.
Testamentary Capacity
That measure of mental ability which is recog-
nized in law as sufficient for the making a will.
See Nicewander v. Nicewander, 151 Ill. 156, 37 N.
E. 698; Delafield v. Parish, 25 N.Y. 29; Duffield
v. Robeson, 2 Har. (Del.) 379; Lowe v. Williamson,
2 N.J.Eq. 85.
A testator to have such capacity must have sufficient
mind and memory to intelligently understand the nature
of business in which he is engaged, to comprehend gen-
erally the nature and extent of property which constitutes
his estate, and which he intends to dispose of, and to recol-
lect the objects of his bounty. In re Larsen's Estate, 191
Wash. 257, 71 P.2d 47, 49. And it depends upon capacity
at very time will was executed, and not previously or
subsequently. Bishop v. Scharf, 214 Iowa 644, 241 N.W.
3, 7.
Testamentary Causes
In English law. Causes or matters relating to
the probate of wills, the granting of administra-
tions, and the suing for legacies, of which the ec-
clesiastical courts have jurisdiction. 3 Bl.Comm.
95, 98. Testamentary causes are causes relating
to the validity and execution of wills. The phrase
is generally confined to those causes which were
formerly matters of ecclesiastical jurisdiction, and
are now dealt with by the court of probate. Moz-
ley & Whitley.
Testamentary Class
Body of persons, uncertain in number at time of
gift, ascertainable. in future, and each taking in
equal or in other definite proportions. Newlin v.
Mercantile Trust- Co. of Baltimore, 161 Md. 622,
158 A. 51, 57.
Testamentary Disposition
A disposition of property by way of gift, which
is not to take effect unless the grantor dies or
until that event. Diefendorf v. Diefendorf, 56
Hun 639, 8 N.Y.S. 617; Chestnut St. Nat. Bank v.
Fidelity Ins., etc., Co., 40 A. 486, 186 Pa. 333, 65
Am.St.Rep. 860; Patch v. Squires, 105 Vt. 405, 165
A. 919, 921.
Testamentary Guardian
A guardian appointed by the last will of a fath-
er for the person and real and personal estate of
his child until the latter arrives of full age. 1
Bl.Comm. 462; 2 Kent, Comm. 224; In re De
Saulles, 101 Misc. 447, 167 N.Y.S. 445, 453.
Testamentary Paper or Instrument
An instrument in the nature of a will; an un-
probated will; a paper writing which is of the
character of a will, though not formally such,
and, if allowed as a testament, will have the ef-
fect of a will upon the devolution and distribu-
tion of property. Young v. O'Donnell, 129 Wash.
219, 224 P. 682, 684.
Testamentary Power
A power of appointment exercisable only by
will. Restatement, Property, § 321(1).
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TESTES
Testamentary Succession
In Louisiana, that which results from the in-
stitution of an heir contained in a testament exe-
cuted in the form prescribed by law. Civ.Code La.
1900, art. 876.
Testamentary Trustee
See Trustee.
TESTAMENTI FACTIO. Lat. In the civil law.
The ceremony of making a testament, either as
testator, heir, or witness.
TESTAMENTUM. Lat. In the civil law. A tes-
tament; a will, or last will.
In old English law. A testament or will; a
disposition of property made in contemplation of
death. Bract. fol. 60.
A general name for any instrument of convey-
ance, including deeds and charters, and so called
either because it furnished written testimony of
the conveyance, or because it was authenticated
by witnesses, (testes.) Spelman.
TESTAMENTUM EST VOLUNTATIS NOSTR1E
JUSTA SENTENTIA, DE EO QUOD QUIS POST
MORTEM SUAM FIER' VELIT. A testament is
the just expression of our will concerning that
which any one wishes done after his death, [or, as
Blackstone translates, "the legal declaration of
a man's intentions which he wills to be performed
after his death."] Dig. 28, 1, 1; 2 Bl.Comm. 499.
TESTAMENTUM, 1. e., TESTATIO MENTIS,
FACTA NULLO PR1ESENTE METU PERICULI,
SED COGITATIONE MORTALITATIS. Co. Litt.
322. A testament, i. e., the witnessing of one's in-
tention, made under no present fear of danger, but
in expectancy of death.
TESTAMENTUM INOFFICIOSUM. Lat. In the
civil law. An inofficious testament, (q. v.).
TESTAMENTUM OMNE MORTE CONSUMMA-
TUR. Every will is perfected by death. A will
speaks from the time of death only. Co. Litt. 232.
TESTARI. Lat. In the civil law. To testify;
to attest; to declare, publish, or make known a
thing before witnesses. To make a will. Calvin.
TESTATE. One who has made a will; one who
dies leaving a will.
If deceased's property passed to the devisees under his
will, then he died "testate" ; but, if no part of the prop-
erty of his estate passed by will, but by the statute of
descent and distribution, then he died "intestate". Leffler
v. Leffler, 151 Fla. 455, 10 So.2d 799, 804.
TESTATION. Witness; evidence.
TESTATOR. One who makes or has made a tes-
tament or will; one who dies leaving a will. This
term is borrowed from the civil law. Inst. 2, 14,
5, 6.
TESTATORIS ULTIMA VOLUNTAS EST PERIM-
PLENDA SECUNDUM VERAM INTENTIONEM
SUAM. Co. Litt. 322. The last will of a testator
is to be thoroughly fulfilled according to his real
intention.
TESTATRIX. A woman who makes a will; a
woman who dies leaving a will; a female testator.
TESTATUM. The name of a writ which is issued
by the court of one county to the sheriff of an-
other county in the same state, when defendant
cannot be found in the county where the court is
located: for example, after a judgment has been
obtained, and a ca. sa. has been issued, which has
been returned non est inventus, a testatum ca. sa.
may be issued to the sheriff of the county where
the defendant is. See Viner, Abr. Testatum 259.
In conveyancing. That part of a deed which
commences with the words, "This indenture wit-
nesseth."
TESTATUM WRIT. In practice. A writ con-
taining a testatum clause; such as a testatum
capias, a testatum /1. fa., and a testatum ca. sa.
See Testatum.
TESTATUS. Lat. In the civil law. Testate; one
who has made a will. Dig. 50, 17, 7.
TESTE MEIPSO. Lat. In old English law and
practice. A solemn formula of attestation by the
sovereign, used at the conclusion of charters, and
other public instruments, and also of original
writs out of chancery. Spelman.
TESTE OF A WRIT. In practice. The concluding
clause, commencing with the word "Witness," etc.
A writ which bears the teste is sometimes said to
be tested.
"Teste" is a word commonly used in the last part of
every writ, wherein the date is contained beginning with
the words, "Teste meipso," meaning the sovereign, if the
writ be an original writ, or be issued in the name of the
sovereign ; but, if the writ be a judicial writ, then the
word "Teste" is followed by the name of the chief judge
of the court in which the action is brought, or, in case of
a vacancy of such office, in the name of the senior puisne
judge. Mozley & Whitley.
TESTED. To be tested is to bear the teste,
(q. v.).
TESTES. Lat. Witnesses.
TESTES PONDERANTUR, NON NUMERAN-
TUR. Witnesses are weighed, not numbered.
That is, in case of a conflict of evidence, the truth
is to be sought by weighing the credibility of the
respective witnesses, not by the mere numerical
preponderance on one side or the other.
TESTES QUI POSTULAT DEBET DARE EIS
SUMPTUS COMPETENTES. Whosoever de-
mands witnesses must find them in competent pro-
vision.
TESTES, TRIAL PER. A trial had before a judge
without the intervention of a jury, in which the
judge is left to form in his own breast his sentence
upon the credit of the witnesses examined; but
this mode of trial, although it was common in
the civil law, was seldom resorted to in the prac-
tice of the common law, but it is now becoming
common when each party waives his right to a
trial by jury. Brown.
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TESTIBUS
TESTIBUS DEPONENTHIUS IN PARI NU-
MERO, DIGNIORIBUS EST CREDENDUM.
Where the witnesses who testify are in equal num-
ber, [on both sides,] the more worthy are to be be-
lieved. 4 Inst. 279.
TESTIFY. To bear witness; to give evidence as
a witness; to make a solemn declaration, under
oath or affirmation, in a judicial inquiry, for the
purpose of establishing or proving some fact.
See State v. Robertson, 26 S.C. 117, 1 S.E. 443;
Gannon v. Stevens, 13 Kan. 459; Mudge v. Gilbert,
43 How.Prac. (N.Y.) 221; People v. Krotz, 341
Ill. 214, 172 N.E. 135, 137.
TESTIMONIA PONDERANDA SUNT, NON NU-
MERANDA. Evidence is to be weighed, not enu-
merated.
TESTIMONIAL. Besides its ordinary meaning of
a written recommendation to character, "testimo-
nial" has a special meaning, under St. 39 Eliz. c.
17, § 3, passed in 1597, under which it signified a
certificate under the hand of a justice of the peace,
testifying the place and time when and where a
soldier or mariner landed, and the place of his
dwelling or birth, unto which he was to pass, and
a convenient time limited for his passage. Every
idle and wandering soldier or mariner not having
such a testimonial, or willfully exceeding for
above fourteen days the time limited thereby, or
forging or counterfeiting such testimonial, was to
suffer death as a felon, without benefit of clergy.
This act was repealed, in 1812, by St. 52 Geo. III.
c. 31. Mozley & Whitley.
TESTIMONIAL PROOF. In the civil law. Proof
by the evidence of witnesses, i. e., parol evidence,
as distinguished from proof by written instru-
ments, which is called "literal" proof.
TESTIMONIO. In Spanish law. An authentic
copy of a deed or other instrument, made by a
notary and given to an interested party as evi-
dence of his title, the original remaining in the
public archives. Guilbeau v. Mays, 15 Tex. 414.
TESTIMONIUM CLAUSE. In conveyancing.
That clause of a deed or instrument with which
it concludes: "In witness whereof, the parties to
these presents have hereunto set their hands and
seals."
TESTIMONY. Evidence given by a competent
witness, under oath or affirmation; as distin-
guished from evidence derived from writings, and
other sources. Edelstein v. United States, 79 C.C.
A. 328, 149 F. 636, 640, 9 L.R.A.,N.S., 236; Gray-
son v. Durant, 43 Okl. 799, 144 P. 592, 594; Cau-
ble v. Key, Tex.Civ.App., 256 S.W. 654, 655.
Evidence and Testimony as Synonymous
or Distinguishable
The words "testimony" and "evidence" are not
synonymous. Bednarik v. Bednarik, 18 N.J.Misc.
633, 16 A.2d 80, 89.
Although testimony is evidence, evidence may or may
not be testimony or may, and in most cases does, consist
of more than testimony, Superior Meat Products v. Hollo-
way, 113 Ill. App. 320, 48 N.E.2d 83, 86.
Anything perceptible to the five senses, constitutes evi-
dence, when submitted to court or jury, if competent, In
re Fisher's Estate, 47 Idaho 668, 279 P. 291, 293.
Application for policy, although evidence in suit on poli-
cy, was not "testimony," Metropolitan Life Ins. Co. v.
Lodzinski, 121 N.J.Eq. 183, 188 A. 681, 688.
"Evidence" is the broader term and includes all testi-
mony. Bednarik v. Bednarik, 18 N.J.Misc. 633, 16 A.2d 80,
89. In re Seigle's Estate, 26 N.Y.S.2d 410, 413, 176 Misc.
15.
"Evidence" of transaction between claimant and dece-
dent, were not "testimony." In re Seigle's Estate, 264
App.Div. 76, 34 N.Y.S.2d 489, 491.
Exhibits are "evidence" but not "testimony". Worland
v. McGill, 26 Ohio App. 442, 160 N.E. 478, 480; Madison v.
State, 138 Fla. 467, 189 So. 832, 835.
"Testimony" is found in spoken words of witnesses
while "evidence" includes documents and other exhibits
which may properly be submitted to jury. Madison v.
State, 138 Fla. 467, 189 So. 832, 835.
"Testimony" is that species of evidence which is pro-
duced through language of witnesses. Weeks v. Bailey,
33 N.M. 193, 263 P. 29, 30.
Testimony is one species of evidence. But the word
"evidence" is a generic term which includes every species
of it.  Gazette Printing Co. v. Morss, 60 Ind. 157. Testi-
mony is the evidence given by witnesses. Evidence is
whatever may be given to the jury as tending to prove a
case. It includes the testimony of witnesses, documents,
admissions of parties, etc. Mann v. Higgins, 83 Cal. 66,
23 P. 206 ; Carroll v. Bancker, 43 La. Ann. 1078, 10 So. 192 ;
Columbia Nat. Bank v. German Nat. Bank, 56 Neb. 803, 77
N.W. 346; Harris v. Tomlinson, 130 Ind. 426, 30 N.E. 214;
Jones v. Gregory, 48 Ill.App. 230; Industrial Commission
v. Jasionowski, 24 Ohio App. 66, 156 N.E. 616, 618. What
is sworn is testimony; what is the truth deduced there-
from is "evidence." Louisville & N. R. Co. v. Rogers, 21
Ga.App. 324, 94 S.E. 321, 322; Mick v. Mart, N.J.Ch., 65 A.
851.
But in common parlance, "testimony" and "evidence"
are synonymous. State v. Winney, 21 N.D. 72, 128 N.W.
680, 681; Jones v. City of Seattle, 51 Wash. 245, 98 P. 743,
745; Fitzgerald v. Benner, 219 Ill. 485, 76 N.E. 709, 716;:
Grayson v. Durant, 43 Okl. 799, 144 P. 592, 594.
Testimony properly means only such evidence as is de-
livered by a witness on the trial of a cause, either orally
or in the form of affidavits or depositions. Thus, an an-
cient deed, when offered under proper circumstances, is
evidence but it could not strictly be called "testimony."
The words "testimony" and "evidence," are fre-
quently used synonymously. Superior Lloyds of
America v. Foxworth, Tex.Civ.App., 178 S.W.2d
724, 726; Roberts v. Carlson, 142 Neb. 851, 857, 8
N.W.2d 175, 179; Wyuta Cattle Co. v. Connell, 43
Wyo. 135, 299 P. 279, 281.
As used in instruction "testimony" was used in the sense
of "evidence." In re Burcham's Estate, 211 Iowa 1395, 235.
N.W. 764, 766.
The use of the word "testimony" instead of "evidence"
in an instruction, where both oral evidence and physical
facts and circumstances are defensively interposed, is not
prejudicial where it is clear from all the instructions that
it was intended that such physical facts should also be con-
sidered by the jury. Roberts v. Carlson, 142 Neb. 857,
N.W.2d 175, 179.
The word "testimony" as used in statute providing that
when any deed, writing, or other document necessary as
"testimony" may be in possession of a resident who is
not a party subpoena duces tecum shall be issued on ap-
plication, means "evidence". Ex parte Hart,. 240, Ala. 642,.
200 So. 783, 786.
Expert Testimony
See Expert Evidence.
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Negative Testimony
Testimony not bearing directly upon the imme-
diate fact or occurrence under consideration, but
evidencing facts from which it may be inferred
that the act or fact in question could not possibly
have happened. See Barclay v. Hartman, 43 A.
174, 2 Marv. (Del.) 351; Cinadar v. Detroit, G.
H. & M. Ry. Co., 193 Mich. 38, 159 N.W. 312;
Heywood v. State, 12 Ga.App. 643, 77 S.E. 1130;
Williams v. State, 23 Ga.App. 542, 99 S.E. 43.
Positive Testimony
Direct testimony that a thing did or did not
happen. Williams v. State, 23 Ga.App. 542, 99
S.E. 43; Roberts v. State, 90 Fla. 779, 107 So. 242,
244.
TESTIS. Lat. A witness; one who gives evi-
dence in court, or who witnesses a document.
TESTIS DE VISU PRZEPONDERAT ALIIS. 4
Inst. 279. An eye-witness is preferred to others.
TESTIS LUPANARIS SUFFICIT AD FACTUM
IN LUPANARI. Moore, 817. A lewd person is a
sufficient witness to an act committed in a brothel.
TESTIS NEMO IN SUA CAUSA ESSE POTEST.
No one can be a witness in his own cause.
TESTIS OCULATUS UNUS PLUS VALET QUAM
AURITI DECEM. 4 Inst. 279. One eye-witness
is worth more than ten ear-witnesses.
TESTMOIGNE. An old law French term, denot-
ing evidence or testimony of a witness.
TESTMOIGNES NE POENT TESTIFIER LE
NEGATIVE, MES L'AFFIRMATIVE. Witnesses
cannot testify to a negative; they must testify
to an affirmative. 4 Inst. 279.
TEXT-BOOK. A legal treatise which lays down
principles or collects decisions on any branch of
the law.
TEXTUS R0i 4FENSIS. In old English law. The
Rochester text. An ancient manuscript contain-
ing many of the Saxon laws, and the rights, cus-
toms, tenures, etc., of the church of Rochester,
drawn up by Ernulph, bishop of that see from A.
D. 1114 to 1124. Cowell.
THAINLAND. In old English law. The land
which was granted by the Saxon kings to their
thains or thanes was so called.
THALWEG. Old German spelling of Talweg,
which title see.
THANAGE OF THE KING. A certain part of
the king's land or property, of which the ruler
or governor was called "thane." Cowell.
THANE. An Anglo-Saxon nobleman; an old title
of honor, perhaps equivalent to "baron." There
were two orders of thanes,—the king's thanes and
the ordinary thanes. Soon after the Conquest
this name was disused. Cowell.
THANELANDS. Such lands as were granted by
charter of the Saxon kings to their thanes with
all immunities, except from the trinoda necessitas.
Cowell.
THANESHIP. The office and dignity of a thane;
the seigniory of a thane.
THAT. A relative pronoun equivalent to who or
which, either singular or plural. Dunn v. Bryan,
77 Utah 604, 299 P. 253, 255.
THAT WHICH I MAY DEFEAT BY MY ENTRY
I MAKE GOOD BY MY CONFIRMATION. Co.
Litt. 300.
THAVIES INN. An inn of chancery. See Inns of
Chancery.
THE. An article which particularizes the subject
spoken of. "Grammatical niceties should not be
resorted to without necessity; but it would be ex-
tending liberality to an unwarrantable length to
confound the articles 'a' and 'the'. The most
unlettered persons understand that 'a' is inde-
finite, but 'the' refers to a certain object"- Per
Tilghman, C. J., Sharff v. Com., 2 Bin., Pa., 516;
Penn Mut. Life Ins. Co. v. Henderson, D.C.Fla.,
244 F. 877, 880; Howell v. State, 138 S.E. 206, 210,
164 Ga. 204; Hoffman v. Franklin Motor Car Co.,
32 Ga.App. 229, 122 S.E. 896, 900. "The" house
means only one house. Rocci v. Massachusetts
Acc. Co., 222 Mass. 336, 110 N.E. 972, 973, Ann.
Cas.1918C, 529.
THE FUND WHICH HAS RECEIVED THE
BENEFIT SHOULD MAKE THE SATISFAC-
TION. 4 Bouv. Inst. note 3730.
THE LAW ABHORS A MULTIPLICITY OF
SUITS.
THE PARTIES BEING IN PART CASU, JUSTICE
IS IN EQUILIBRIO.
THE REPEAL OF THE LAW IMPOSING A PEN-
ALTY IS ITSELF A REMISSION.
THEATER. Any edifice used for the purpose of
dramatic or operatic or other representations,
plays, or performances, for admission to which
entrance-money is received, not including halls
rented or used occasionally for concerts or thea-
trical representations. See Bell v. Mahn, 121 Pa.
225, 15 A. 523, 1 L.R.A. 364, 6 Am.St.Rep. 786;
Zucarro v. State, 197 S.W. 982, 985, 82 Tex.Cr.R.
1, L.R.A.1918B, 354; City of Ames v. Gerbracht,
189 N.W. 729, 194 Iowa, 267.
THEATER ADMISSION TICKET. Is in nature of
a permit to enter place of amusement and use ac-
commodations provided therein for enjoyment of
entertainment offered and is evidence of payment
of admission fee to proper person, but carries
with it no obligation of theater owner to do any-
thing or perform any service. Jordan v. Concho
Theatres, Tex.Civ.App., 160 S.W.2d 275, 276.
THEFT. A popular name for larceny. See State
v. Stewart, 67 A. 786, 788, 6 Pennewill (Del.) 435.
The fraudulent taking of corporeal personal prop-
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THEFT
erty belonging to another, from his possession, or
from the possession of some person holding the
same for him, without his consent, with intent to
deprive the owner of the value of the same, and
to appropriate it to the use or benefit of the per-
son taking. Quitzow v. State, 1 Tex.App. 65, 28
Am.Rep. 396; Mullins v. State, 37 Tex. 338; U. S.
v. Thomas, D.C.Cal., 69 F. 588, 590; Fidelity
Phcenix Fire Ins. Co. of New York v. Oldsmobile
Sales Co., Tex.Civ.App., 261 S.W. 492, 497; Reese
v. State, 239 S.W. 619, 620, 91 Tex.Cr.R. 457; Fi-
delity and Guaranty Fire Corporation v. Ratter-
man, 262 Ky. 350, 90 S.W.2d 679, 680.
It was also said that it is a wider term than lar-
ceny and that it includes swindling and embezzle-
ment and that generally, one who obtains posses-
sion of property by lawful means and thereafter
appropriates the property to the taker's own use
is guilty of a "theft". Kidwell v. Paul Revere Fire
Ins. Co., 294 Ky. 833, 172 S.W.2d 639, 640; Whit-
worth v. State, 11 Tex.App. 414, 428, 429; People
v. Pillsbury, 138 P.2d 320, 322, 59 Cal.App.2d 107.
In Scotch law. The secret and felonious ab-
straction of the property of another for sake of
lucre, without his consent. Alis.Crim.Law, 250.
THEFT-BOTE. The offense committed by a party
who, having been robbed and knowing the felon,
takes back his goods again, or receives other
amends, upon an agreement not to prosecute.
Farmers' Nat. Bank of Somerset v. Tarter, 256 Ky.
70, 75 S.W.2d 758, 760.
THEFT-BOTE EST EMENDA FURTI CAPTA,
SINE CONSIDERATIONE CURVE DOMINI
REGIS. 3 Inst. 134. Theft-bote is the paying
money to have goods stolen returned, without hav-
ing any respect for the court of the king.
THEFT BY FALSE PRETEXT. Obtaining prop-
erty by means of false pretext with intent to de-
prive owner of value of property without his con-
sent and to appropriate it to own use, followed
by such appropriation. Vernon's Ann.P.C. art.
1413. Hoovel v. State, 125 Tex.Cr.R. 545, 69 S.W.
2d 104, 106.
THEGN. An Anglo-Saxon term meaning a re.
tainer. Afterwards it came to designate the ter-
ritorial nobility. At a later period these were
king's thegns, who were persons of great import-
ance, and inferior thegns. Military service ap-
pears to have run through it all. After the Con-
quest, they were merged into the class of knights.
Encycl. Br.
THEGNAGE TENURE. A kind of tenure in
Northumbria in the 13th century and beyond, of
which little is known. 2 Holdsw. Hist. E. L. 132.
THELONIO IRRATIONABILI HABENDO. A
writ that formerly lay for him that had 'any part
of the king's demesne in fee-farm, to recover rea-
sonable toll of the king's tenants there, if his
demesne had been accustomed to be tolled. Reg.
Orig. 87.
THELONIUM. An abolished writ for citizens or
burgesses to assert their right to exemption from
toll. Fitzh. Nat. Brev. 226.
THELONMANNUS. The toll-man or officer who
receives toll. Cowell.
THELUSSON ACT. The statute 39 & 40 Geo. III.
c. 98, which restricted accumulations to a term
of twenty-one years from the testator's death. It
was passed in consequence of litigation over the
will of one Thelusson.
THEME. In Saxon law. The power of having
jurisdiction over naifs or villeins, with their suits
or offspring, lands, goods, and chattels. Co. Litt.
116a.
THEMMAGIUM. A duty or acknowledgment paid
by inferior tenants in respect of theme or team.
Cowell.
THEN. This word, as an adverb, means "at that
time," referring to a time specified, either past or
future. It has no power in itself to fix a time. It
simply refers to a time already fixed. Mangum v.
Piester, 16 S.C. 329. It may also denote a con-
tingency, and be equivalent to "in that event."
Pintard v. Irwin, 20 N.J.L. 505; Western & A. R.
Co. v. Smith, 145 Ga. 276, 88 S.E. 983, 985; State
ex rel. Hanly v. Montgomery, 132 La. 679, 61 So.
735, 736; In re Swift's Estate, 279 Pa. 424, 124 A.
135, 136; Lermond v. Hyler, 121 Me. 54, 115 A.
546, 551; Roberts v. Wadley, 156 Ga. 35, 118 S.E.
664, 665.
THEN AND THERE. At the time and place last
previously mentioned or charged. Context, how-
ever, may give the phrase a more remote ante-
cedent than the time and place last previously
mentioned or charged. Vogrin v. American Steel
& Wire Co., 263 Ill. 474, 105 N.E. 332, 333; State v.
Mahoney, 115 Me. 251, 98 A. 750, 752; Brogan v.
State, 199 Ind. 203, 156 N.E. 515, 516; Bashara v.
State, 84 Tex.Cr.R. 263, 206 S.W. 359, 360; State
v. BUckwald, 117 Me. 344, 104 A. 520, 521.
THENCE. In surveying, and in descriptions of
land by courses and distances, this word, preced-
ing each course given, imports that the following
course is continuous with the one before it. Flagg
v. Mason, 141 Mass. 66, 6 N.E. 702.
THENCE DOWN THE RIVER. This phrase as
used in field notes of a surveyor of a patent, is
construed to mean with the meanders of the river,
unless there is positive evidence that the meander
line as written was where the g Urveyor in fact
ran it; for such lines are to show the general
course of the stream and to be used in estimating
acreage, and not necessarily boundary lines. Burk-
ett v. Chestnutt, Tex.Civ.App., 212 S.W. 271, 274.
THEOCRACY. Government of a state by the im-
mediate direction of God, (or by the assumed di-
rection of a supposititious divinity,) or the state
thus governed.
THEODEN. In Saxon law. A husbandman or in-
ferior tenant; an under-thane. Cowell.
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THINGS
THEODOSIAN CODE. See Codex Theodosianus.
THEOF. In Saxon law. Offenders who joined in
a body of seven to commit depredations. Whar-
ton.
THEOPHILUS' INSTITUTES. See Institutes.
THEORETICAL AGRICULTURE. A science
comprehending in its scope the nature and prop-
erties of soils, the different sorts of plants and
seeds fitted for them, the composition and quali-
ties of manures, and the rotation of crops, and
involving a knowledge of chemistry, geology, and
kindred sciences. State ex rel. Boynton v. Wheat
Farming Co., 137 Kan. 697, 22 P.2d 1093.
THEORY OF CASE. Facts on which the right
of action is claimed to exist. Pittsburgh, C., C. and
St. L. Ry. Co. v. Rogers, 45 Ind.App. 230, 87 N.E.
28, 31. The basis of liability or grounds of de-
fense. Higgins v. Fuller, 48 N.M. 218, 148 P.2d
575, 579.
THEOWER, THEOWMEN, or THEWS. In feudal
law. Slaves, captives, or bondmen. Spel. Feuds,
c. 5.
THERE. In or at that place. Bedell v. Richard-
son Lubricating Co., 201 Mo.App. 251, 211 S.W.
104, 106.
THEREABOUT. About that place. Austin v.
Bluff City Shoe Co., 176 Mo.App. 546, 158 S.W.
709, 713.
THEREAFTER. After the time last mentioned* ,
after that; after that time; afterward; subse-
quently; thenceforth. People v. St. Louis, A. &
T. H. R. Co., 300 Ill. 519, 133 N.E. 217; Lamoutte
v. Title Guaranty & Surety Co., 165 App.Div. 573,
151 N.Y.S. 148, 154; Dauwe v. State, 147 Tex.Cr.R.
384, 180 S.W.2d 925, 927.
THEREBY. By that means; in consequence of
that. Fall City Ice & Beverage Co. v. Scanlan
Coal Co., 208 Ky. 820, 271 S.W. 1097, 1099.
THEREFOR. For that thing: for it, or them.
State v. Dayton Lumber Co., Tex.Civ.App., 159 S.
W. 391, 398.
THEREIN. In that place. Mulville v. City of
San Diego, 183 Cal. 734, 192 P. 702, 703; City
Hospital of Quincy v. Inhabitants of Town of
Milton, 232 Mass. 273, 122 N.E. 274.
THEREUPON. Without delay or lapse of time.
Putnam v. Langley, 133 Mass. 205. See Hill v.
Wand, 47 Kan. 340, 27 P. 988, 27 Am.St.Rep. 288.
Immediately. 6 M. & W. 492. See 3 Q. B. 79,
where the terms thereupon and thereby are dis-
tinguished. Following on; in consequence of.
Yuma County Water Users' Ass'n v. Schlecht, 43
S.Ct. 498, 500, 262 U.S. 138, 67 L.Ed. 909; Stephens
v. Nacey, 47 Mont. 479, 133 P. 361, 362; Atlanta
Gaslight Co. v. Sams, 29 Ga.App. 446, 116 S.E. 21,
25.
THESAURER. Treasurer. 3 State Tr. 691.
Black's Law Dictionary Revised 4th Ed.-104
THESAURUS, THESAURIUM. The treasury; a
treasure.
THESAURUS ABSCONDITUS. In old English
law. Treasure hidden or buried. Spelman.
THESAURUS COMPETIT DOMINO REGI, ET
NON DOMINO LIBERATIS, NISI SIT PER VER-
BA SPECIALIA. Fitzh. Coron. 281. A treasure
belongs to the king, and not to the lord of a lib-
erty, unless it be through special words.
THESAURUS INVENTUS. In old English law.
Treasure found; treasure-trove. Bract. fols. 119b,
122.
THESAURUS INVENTUS EST VETUS DISPOSI-
TIO PECUNIIE, ETC., CUJUS NON EXTAT MO-
DO MEMORIA, ADEO UT JAM DOMINUM NON
HABEAT. 3 Inst. 132. Treasure-trove is an an-
cient hiding of money, etc., of which no recollec-
tion exists, so that it now has no owner.
THESAURUS NON COMPETIT REGI, NISI
QUANDO NEMO SCIT QUI ABSCONDIT THES-
AURUM. 3 Inst. 132. Treasure does not belong
to the king, unless no one knows who hid it.
THESAURUS REGIS EST VINCULUM PACIS ET
BELLORUM NERVUS. Godb. 293. The king's
treasure is the bond of peace and the sinews of
war.
THESMOTHETE. A law-maker; a law-giver.
THETHINGA. A tithing.
THIA. Lat. In the civil and old European law.
An aunt.
THIEF. One who steals; one who commits theft
or larceny. Nugent v. Union Automobile Ins. Co.,
140 Or. 61, 13 P.2d 343, 344.
THINGS. The objects of dominion or property as
contradistinguished from "persons." Western Un-
ion Telegraph Co. v. Bush, 191 Ark. 1085, 89 S.W.
2d 723, 725, 103 A.L.R. 367; Gayer v. Whelan,
59 Cal.App.2d 255, 138 P.2d 763, 768. The object
of a right;  e., whatever is treated by the law
as the object over which one person exercises a
right, and with reference to which another person
lies under a duty. Holl. Jur. 83.
The word "estate" in general Is applicable to anything
of which riches or fortune may consist. The word is like-
wise relative to the word "things," which is the second
object of jurisprudence, the rules of which are applicable
to persons, things, and actions. Civ.Code La. art. 448.
Such permanent objects, not being persons, as are sensi-
ble, or perceptible through the senses. Aust.Jur. § 452.
Things are distributed into three kinds : (1) Things real
or immovable, comprehending lands, tenements, and here-
ditaments ; (2) things personal or movable, comprehending
goods and chattels ; and (3) things mixed, partaking of
the characteristics of the two former, as a title-deed, a
term for years. The civil law divided things into corporeal
(tang~ possunt) and incorporeal (tangi non possunt).
Wharton.
THINGS IN ACTION. A right to recover money
or other personal property by a judicial proceed-
ing. Civ.Code Cal. § 953. See Chose in Action.
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THINGS
THINGS OF VALUE. To be the subject of gam-
ing may be any thing affording the necessary lure
to indulge the gambling instinct. Painter v. State,
163 Tenn. 627, 45 S.W.2d 46, 47. Heartley v. State,
178 Tenn. 254, 157 S.W.2d 1, 3.
THINGS PERSONAL. Goods, money, and all oth-
er movables, which may attend the owner's per-
son wherever he thinks proper to go. 2 Bl.Comm.
16. Things personal consist of goods, money, and
all other movables, and of such rights and profits
as relate to movables. 1 Steph. Comm. 156; Peo-
ple v. Brooklyn, 9 Barb. (N.Y.) 546; Castle v.
Castle, C.C.A.Hawaii, 267 F. 521, 522. Also all
vegetable productions, as the fruit or other parts
of a plant when severed from the body of it, or
the whole plant itself, when severed from the
ground. Western Union Telegraph Co. v. Bush,
191 Ark. 1085, 89 S.W.2d 723, 725, 103 A.L.R. 367.
THINGS REAL. Such things as are permanent,
fixed, and immovable, which cannot be carried out
of their place; as lands and tenements and here-
ditaments. 2 Bl. Comm. 16. Western Union Tele-
graph v. Bush, 191 Ark. 1085, 89 S.W.2d 723, 725,
103 A.L.R. 367.
This definition has been objected to as not embracing
incorporeal rights.  Mr. Stephen defines things real to
"consist of things substantial and immovable, and of the
rights and profits annexed to or issuing out of these." 1
Steph. Comm. 156. Things real are otherwise described to
consist of lands, tenements, and hereditaments. People v.
Brooklyn, 9 Barb., N.Y., 546; Sox v. Miracle, 35 N.D. 458,
160 N.W. 716, 719.
THINGS ACCESSORY ARE OF THE NATURE
OF THE PRINCIPAL. Finch, Law, b. 1, c. 3, n.
25,
THINGS ARE CONSTRUED ACCORDING TO
THAT WHICH WAS THE CAUSE THEREOF.
Finch, Law, b. 1, c. 3, n. 4.
THINGS ARE DISSOLVED AS THEY BE CON-
TRACTED. Finch, Law, b. 1, c. 3, n. 7.
THINGS GROUNDED UPON AN ILL AND VOID
BEGINNING CANNOT HAVE A GOOD PER-
FECTION, Finch, Law, b. 1, c. 3, n. 8.
THINGS IN ACTION, ENTRY, OR RE-ENTRY
CANNOT BE GRANTED OVER. Van Renssel-
aer v. Ball, 19 N.Y. 100, 103,
THINGS INCIDENT CANNOT BE SEVERED,
Finch, Law, b. 3, c. 1, n. 12.
THINGS INCIDENT PASS BY THE GRANT OF
THE PRINCIPAL. Seymour v. Canandaigua &
N. F. R. Co., 25 Barb. (N.Y.) 284, 310.
THINK. To believe, to consider, to conclude, to
esteem; to recollect or call to mind. Martin v.
Iowa Ry. Co., 59 Iowa, 414, 13 N.W. 424; Abbott
v. Church, 288 Ill. 91, 123 N.E. 306, 308, 4 A.L.R.
975; Trice v. Powell, 168 Va. 397, 191 S.E. 758,
762.
THIRD. Following next after the second; also,
with reference to any legal instrument or transac-
tion or judicial proceeding, any outsider or per-
son not a party to the affair nor immediately con-
cerned in it.
Third opposition. In Louisiana, when an exe-
cution is levied on property which does not belong
to the defendant, but to an outsider, the remedy
of the owner is by an intervention called a "third
opposition," in which, on his giving security, an
injunction or prohibition may be granted to stop
the sale. See New Orleans v. Louisiana Const.
Co., 9 S.Ct. 223, 129 U.S. 45, 32 L.Ed. 607; Norton
v. Walton, C.C.A.La., 288 F. 359, 360.
Third parties. See Party.
Third penny. A portion (one-third) of the
amount of all fines and other profits of the county
court, which was reserved for the earl, in the
early days when the jurisdiction of those courts
was extensive, the remainder going to the king.
Third possessor. In Louisiana, a person who
buys mortgaged property, but without assuming
the payment of the mortgage. Thompson v. Levy,
50 La.Ann. 751, 23 So. 913; New Orleans Land Co.
v. Southern States Fair-Pan-American Exposition
Co., 143 La. 884, 79 So. 525, 526.
THIRD CONVICTION. Before charge can be con-
sidered a "third conviction" of a felony in con-
templation of Habitual Criminal Act, accused must
have been convicted of a second felony subsequent
to his conviction of first one and after he had paid
penalty inflicted for it, and third conviction should
be subsequent to second, and after he had paid
penalty for it. Cobb v. Commonwealth, 267 Ky.
176, 101 S.W.2d 418, 420.
THIRD INTERNATIONAL. Communist Inter-
national, Moscow International, Red International.
An organization founded at Moscow in March,
1919, by delegates from twelve different countries,
as a protest against the inactivity and bourgeois
character of the Second International and as a
call to Communists all over the world to support
the Russian Revolution and inaugurate similar
movements in other countries. It is still predom-
inantly Russian. Garriga v. Richfield, 174 Misc.
315, 20 N.Y.S.2d 544, 547.
THIRD PARTY BENEFICIARY. In order for
one not privy to a contract to maintain an action
thereon as a "third party beneficiary", it must
appear that the contract was made and intended
for his benefit. Fagliarone v. Consolidated Film
Industries, 20 N.J.Misc. 193, 26 A.2d 425, 426. And
the benefit must be one that is not merely inci-
dental, but must be immediate in such a sense and
degree as to indicate the assumption of a duty to
make reparation if the benefit is lost. Associated
THINGS INCIDENT SHALL PASS BY THE
GRANT OF THE PRINCIPAL, BUT NOT THE
PRINCIPAL BY THE GRANT OF THE INCI-
DENT. Co. Litt. 152a, 151b; Broom, Max. 433.
THINGS SHALL NOT BE VOID WHICH MAY
POSSIBLY BE GOOD.
THINGUS. In Saxon law. A thane or nobleman;
knight or freeman. Cowell.
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THRENGES
Flour Haulers & Warehousemen v. Hoffman, 282
N.Y. 173, 26 N.E.2d 7, 10.
Member of union is "third party beneficiary" of con-
tract between employer and union. Helt v. Britten-Fen-
ton Co., 44 N.Y.S.2d 58, 60, 180 Misc. 1077.
THIRD PARTY CLAIM PROCEEDING. A pro-
ceeding for the purpose of determining whether
the debtor has any right, title or interest in the
property upon which the levy has been made and
the judgment of the court in such proceedings is
only made conclusive as to the right of the plain-
tiff or other person in whose favor the writ runs
to have the property taken and to subject it to
payment for other satisfaction of his judgment.
Deevy v. Lewis, 54 Cal.App.2d 24, 128 P.2d 577,
579.
THIRDBOROUGH, or THIRDBOROW. An under-
constable. Cowell.
THIRDINGS. The third part of the corn grow-
ing on the land, due to the lord for a heriot on the
death of his tenant, within the manor of Turfat,
in Hereford. Blount.
THIRD-NIGHT-AWN-HINDE. By the laws of
St. Edward the Confessor, if any man lay a third
night in an inn, he was called a "third-night-awn-
hinde," and his host was answerable for him if
he committed any offense. The first night, for-
man-night, or uncouth, (unknown,) he was reck-
oned a stranger; the second night, twa-night, a
guest; and the third night, an awn-hinde, a dom-
estic. Bract. 1. 3.
THIRDS. The designation, in colloquial language,
of that portion of a decedent's personal estate
(one-third) which goes to the widow where there
is also a child or children. See Yeomans v. Stev-
ens, 2 Allen, Mass., 350; O'Hara v. Dever, 46 Barb.
(N.Y.) 614.
THIRLA'GE. In Scotch law. A servitude by
which lands are astricted or "thirled" to a par-
ticular mill, to which the possessors must carry
the grain of the growth of the astricted lands to be
ground, for the payment of such duties as are
either expressed or implied in the constitution of
the right. Ersk. Inst. 2, 9, 18.
THIRTY-NINE ARTICLES. See Articles of Re-
ligion.
THIS. When "this" and "that" refer to different
things before expressed, "this" refers to the thing
last mentioned, and "that" to the thing first men-
tioned. Russell v. Kennedy, 66 Pa. 251. "This" is
a demonstrative adjective, used to point out with
particularity a person or thing present in place or
in thought. Stevens v. Haile, Tex.Civ.App., 162
S.W. 1025, 1028.
THIS DAY SIX MONTHS. Fixing "this day six
months," or "three months," for the next stage
of a bill, is one of the modes in which the house
of lords and the house of commons reject bills
of which they disapprove. A bill rejected in this
manner cannot be reintroduced in the same ses-
sion. Wharton.
THISTLE-TAKE. It was a custom within the
manor of Halton, in Chester, that if, in driving
beasts over a common, the driver permitted them
to graze or take but a thistle, he should pay a
halfpenny a-piece to the lord of the fee. And at
Fiskerton, in Nottinghamshire, by ancient custom,
if a native or a cottager killed a swine above a
year old, he paid to the lord a penny, which pur-
chase of leave to kill a hog was also called "thistle-
take." Cowell.
THOROUGHFARE. The term means, according
to its derivation, a street or passage through
which one can fare, (travel;) that is, a street or
highway affording an unobstructed exit at each
end into another street or public passage. If the
passage is closed at one end, admitting no exit
there, it is called a "cul de sac." Mankato v. War-
ren, 20 Minn. 150 (Gil. 128) ; Wiggins v. Tall-
madge, 11 Barb. (N.Y.) 462; Morris v. Blunt, 49
Utah, 243, 161 P. 1127, 1130; Burnham v. Holmes,
137 Me. 183, 16 A.2d 476, 477.
THRAVE. In old English law. A measure of
corn or grain, consisting of twenty-four sheaves
or four shocks, six sheaves to every shock.
Cowell.
THREAD. A middle line; a line running through
the middle of a stream or road. See Filum;
Filum Aqua; Filum Vim; Thalweg.
THREAT. A declaration of intention or determin-
ation to inflict punishment, loss, or pain on an-
other, or to injure another by the commission of
some unlawful act. U. S. v. Daulong, D.C.La., 60
F.Supp. 235, 236. A menace; especially, any men-
ace of such a nature and extent as to unsettle the
mind of the person on whom it operates, and to
take away from his acts that free and voluntary
action which alone constitutes consent. Abbott,
United States v. French, D.C.Fla., 243 F. 785, 786;
State v. Brownlee, 84 Iowa 473, 51 N.W. 25. Cote
v. Murphy, 159 Pa. 420, 28 A. 190, 23 L.R.A. 135,
39 Am.St.Rep. 686. A declaration of one's pur-
pose or intention to work injury to the person,
property, or rights of another, with a view of re-
straining such person's freedom of action. Mc-
Kenzie v. State, 113 Neb. 576, 204 N.W. 60, 61.
Kamenitsky v. Corcoran, 177 App.Div. 605, 164 N.
Y.S. 297, 300.
THREATENING LETTERS. Sending threatening
letters is the name of the offense of sending let-
ters containing threats of the kinds recognized by
the statute as criminal. See People v. Griffin, 2
Barb. (N.Y.) 429.
THREE-DOLLAR PIECE. A gold coin of the
United States, of the value of three dollars; au-
thorized by the seventh section of the act of Feb-
ruary 21, 1853.
THREE-WEEKS COURT. In the Kentish custom
of gavelet, it was the lord's court. 18 Harv.L.R.
40.
THRENGES. Vassals, but not of the lowest de-
gree; those who held lands of the chief lord.
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THRITHING
THRITHING. In Saxon and old English law.
The third part of a county; a division of a county
consisting of three or more hundreds. Cowell.
Corrupted to the modern "riding,"' which is still
used in Yorkshire. 1 Bl.Comm. 116.
THROUGH. By means of, in consequence of, by
reason of; in, within; over; from end to end, or
from one side to the other. Mississippi Cent. R.
Co. v. Pace, 109 Miss. 667, 68 So. 926, 927; Hyde
Park v. Oakwoods Cemetery Ass'n, 119 Ill. 147, 7
N.E. 627. By the intermediary of; in the name
or as agent of; by the agency of; because of.g reat Atlantic & Pacific Tea Co. v. City of Rich-
mond, 183 Va. 931, 33 S.E.2d 795, 802.
THROUGH LOT. A lot that abuts upon a street
at each end. Illinois Surety Co. v. O'Brien, C.C.A.
Ohio, 223 F. 933, 938.
THROW OUT. To ignore (a bill of indictment.)
THROWN FROM AUTOMOBILE. This phrase
within accident policy means tossed or hurled out
of automobile by some force. Independence Ins.
Co. v. Blanford's Adm'x, 276 Ky. 692, 125 S.W.2d
249, 251; Guaranty Trust Co. v. Continental Life
Ins. Co., 159 Wash. 683, 294 P. 585, 587.
THRUSTING. Within the meaning of a criminal
statute, is not necessarily an attack with a pointed
weapon; it means pushing or driving with force,
whether the point of the weapon be sharp or not.
State v. Lowry, 33 La.Ann. 1224.
THRYMSA. A Saxon coin worth fourpence. Du
Fresne.
THUDE-WEALD. A woodward, or person that
looks after a wood.
THURINGIAN CODE. One of the "barbarian
codes," as they are termed; supposed by Montes-
quieu to have been given by Theodoric, king of
Austrasia, to the Thuringians, who were his sub-
jects. Esprit des Lois, lib. 28, c. 1.
THUS. In the way just indicated. Schrader v.
City of Los Angeles, 19 Cal.App.2d 332, 65 P.2d
374, 375.
THWERTNICK. In old English law. The custom
of giving entertainments to a sheriff, etc., for
three nights.
TICK. A colloquial expression for credit or trust;
credit given for goods purchased.
TICKET. In contracts. A slip of paper contain-
ing a certificate that the person to whom it is
issued, or the holder, is entitled to some right or
privilege therein mentioned or described; such,
for example, are railroad tickets, theater tickets,
pawn tickets, lottery tickets, etc. See Allaire v.
Howell Works Co., 14 N.J.L. 24; Interstate Amuse-
ment Co. v. Martin, 8 Ala.App. 481, 62 So. 404, 405.
In election law. A list of candidates for. par-
ticular offices to be submitted to the voters at an
election; a ballot. Barr v. Cardell, 173 Iowa 18,
155 N.W. 312, 313; Denny v. Pratt, 104 Conn. 396,
133 A. 107, 109.
TICKET OF LEAVE. In English law. A license
or permit given to a convict, as a reward for good
conduct, particularly in the penal settlements,
which allows him to go at large, and labor for
himself, before the expiration of his sentence,
subject to certain specific conditions and revocable
upon subsequent misconduct.
TICKET-OF-LEAVE MAN. A convict who has
obtained a ticket of leave.
TICKET SPECULATOR. One who sells at an
advance over the price charged by the manage-
ment. Speculation of this kind frequently leads
to abuse, especially when the theater is full and
but few tickets are left, so that extortionate pric-
es may be exacted. Levine v. Brooklyn Nat.
League Baseball Club, 179 Misc. 22, 36 N.Y.S.2d
474, 477.
TIDAL. In order that a river may be "tidal" at
a given spot, it may not be necessary that the
water should be salt, but the spot must be one
where the tide, in the ordinary and regular course
of things, flows and reflows. 8 Q.B.Div. 630.
TIDE. The ebb and flow of the sea. See Baird
v. Campbell, 67 App.Div. 104, 73 N.Y.S. 617.
Neap Tides
Those tides which happen between the full and
change of the moon twice in every 24 hours. F.
A. Hihn Co. v. City of Santa Cruz, 170 Cal. 430,
150 P. 62, 65.
Tide Land
Land between the lines of the ordinary high
and low tides, covered and uncovered successive-
ly by the ebb and flow thereof; land covered and
uncovered by the ordinary tides; land over which
the tide ebbs and flows; land which is daily cov-
ered and uncovered by water by the ordinary ebb
and flow of normal tides; land usually overflowed
by the neap or ordinary tides; such land as is
affected by the tide, that lies between ordinary
high-water mark and low-water mark, and which
is alternately covered and left dry by the ordin-
ary flux and reflux of the tides; that portion of
the shore or beach covered and uncovered by the
ebb and flow of ordinary tides. Bolsa Land Co.
v. Vaqueros Major Oil Co., Cal.App., 76 P.2d 519,
521; Hardy v. California Trojan Powder Co., 109
Or. 76, 219 P. 197, 199.
Tide-Water
Water which falls and rises with the ebb and
flow of the tide. The term is not usually applied
to the open sea, but to coves, bays, rivers, etc.
Tideway
That land between high and low water mark.
In re Inwood Hill Park in Borough of Manhattan,
City of New York, 217 App.Div. 587, 217 N.Y.S.
359, 363.
TIDESMEN, in English law, are certain officers
of the custom-house, appointed to watch or attend
upon ships till the customs are paid; and they
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are so called because they go aboard the ships at
their arrival in the mouth of the Thames, and
come up with the tide. Jacob.
TIE, v. To bind. "The parson is not tied to find
the parish clerk." 1 Leon. 94.
TIE, n. When, at an election, neither candidate
receives a majority of the votes cast, but each
has the same number, there is said to be a "tie."
So when the number of votes cast in favor of any
measure, in a legislative or deliberative body, is
equal to the number cast against it. See Wooster
v. Mullins, 64 Conn. 340, 30 A. 144, 25 L.R.A. 694.
TIEL, L. Fr. Such. Nul tiel record, no such
record.
TIEMPO INHABIL. Span. A time of inability;
a time when the person is not able to pay his
debts, (when, for instance, he may not alienate
property to the prejudice of his creditors.) The
term is used in Louisiana. Brown v. Kenner, 3
Mart.O.S. (La.) 270; Thorn v. Morgan, 4 Mart.
N.S. (La.) 292, 16 Am.Dec. 173.
TIERCE. L. Fr. Third. Tierce mein, third
hand. Britt. c. 120.
TIERCE. A liquid measure, containing the third
part of a pipe, 3r forty-two gallons.
TIGH. In old records. A close or intlosure, a
croft. Cowell.
TIGHT. As colloquially applied to a note, bond,
mortgage, lease, etc., this term signifies that the
clauses providing the creditor's remedy in case of
default (as, by foreclosure, execution, distress,
etc.) are summary and stringent.
TIGNI IMMITTENDI. Lat. In the civil law.
The name of a servitude which is the right of
inserting a beam or timber from the wall of one
house into that of a neighboring house, in order
that it may rest on the latter, and that the wall
of the latter may bear this weight. Wharton.
See Dig. 8, 2, 36.
TIGNUM. Lat. A civil-law term for building
material; timber.
TIHLER. In old Saxon law. An accusation.
TILLAGE. A place tilled or cultivated; land un-
der cultivation, as opposed to lands lying fallow
or in pasture.
TIMBER. Wood felled for building or other such
like use. In a legal sense it generally means (in
England) oak, ash, and elm, but in some parts
of England, and generally in America, it is used
in a wider sense, which is recognized by the law.
The term "timber," as used in commerce, refers gen-
erally only to large sticks of wood, squared or capable of
being squared for building houses or vessels; and certain
trees only having been formerly used for such purposes,
namely, the oak, the ash, and the elm, they alone were
recognized as timber trees. But the numerous uses to which
wood has come to be applied, and the general employment
of all kinds of trees for some valuable purpose, has wrought
a change in the general acceptation of terms in connection
therewith, and we find that Webster defines "timber" to be
"that sort of wood which is proper for buildings or for
tools, utensils, furniture, carriages, fences, ships, and the
like." This would Include all sorts of wood from which
any useful articles may be made, or which may be used to
advantage in any class of manufacture or construction.
U. S. v. Stores, C.C., 14 F. 824; Wilson v. State, 17 Tex.
App. 393; U. S. v. Soto, 7 Ariz. 230, 64 P. 420; Tuscarora
Nation of Indians v. Williams, 141 N.Y.S. 207, 210, 79 Misc.
445; Eagle Coal Co. v. Patrick's Adm'r, 161 Ky. 333, 170
S.W. 960, 961; Nettles v. Lichtrnan, 228 Ala. 52, 152 So.
450, 453, 91 A.L.R. 1455.
TIMBER CULTURE ENTRY. See Entry.
TIMBER-TREES. Oak, ash, elm, in all places,
and, by local custom, such other trees as are used
in building. 2 Bl.Comm. 281.
TIMBERLODE. A service by which tenants were
bound to carry timber felled from the woods to
the lord's house. Cowell.
TIME. The measure of duration.
The word is expressive both of a precise point
or terminus and of an interval between two
points.
Pleading
A point in or space of duration at or during
which some fact is alleged to have been commit-
ted.
General
Cooling time, See that title.
Reasonable time. Such length of time as may
fairly, properly, and reasonably be allowed or
required, having regard to the nature of the act
or duty, or of the subject-matter, and to the at-
tending circumstances. It is a maxim of English
law that "how long a 'reasonable time' ought to
be is not defined in law, but is left to the discre-
tion of the judges." Co. Litt. 50. See Hoggins
v. Becraft, 1 Dana (Ky.) 28; Hill v. Hobart, 16
Me. 168; Twin Lick Oil Co. v. Marbury, 91 U.S.
591, 23 L.Ed. 328; Hearne v. Fischer Lime & Ce-
ment Co., 220 Ky. 791, 295 S.W. 1012, 1013; Lum-
bermen's Reciprocal Ass'n v. Warren, Tex.Civ.
App., 272 S.W. 826, 827; Simmons v. Western In-
demnity Co., Tex.Civ.App., 210 S.W. 713, 715.
Time-bargain. In the language of the stock
exchange, an agreement to buy or sell stock at a
future time, or within a fixed time, at a certain.
price. It is in reality nothing more than a bar-
gain to pay differences.
Time check. A certificate signed by a master
mechanic or other person in charge of laborers,
reciting the amount due to the laborer for labor
for a specified time. Burlington Voluntary Re-
lief Dept. v. White, 41 Neb. 547, 59 N.W. 747, 43
Am.St.Rep. 701; Gerlach v. North Texas & S. F.
Ry. Co., Tex.Civ.App., 244 S.W. 662, 666.
Time immemorial. Time whereof the memory
of a man is not to the contrary.
Time is the essence of contract. Means that
performance by one party at time or within period
specified in contract is essential to enable him to
require performance by other party. Hayes Mfg.
Corporation v. McCauley, C.C.A.Ohio, 140 F.2d
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187, 190; Williams v. Shamrock Oil and Gas Co.,
128 Tex. 146, 95 S.W.2d 1292, 1295, 107 A.L.R. 269.
A contract where the parties evidently contemplated a
punctual performance, at the precise time named, as vital
to the agreement, and one of its essential elements. Time
is not of the essence of the contract in any case where a
moderate delay in performance would not be regarded as
an absolute violation of the contract.
Time of accident. In occupational disease cas-
es, time when disability first occurs. Michigan
Quartz Silica Co. v. Industrial Commission, 214
Wis. 492, 253 N.W. 167.
Time of memory. In English law. Time com-
mencing from the beginning of the reign of Rich-
ard I. 2 Bl.Comm. 31. Lord Coke defines time
of memory to be "when no man alive hath had
any proof to the contrary, nor hath any conus-
ance to the contrary." Co. Litt. 86a, 86b.
Time out of memory. Time beyond memory;
time out of mind; time to which memory does
not extend.
Time-policy. A policy of marine insurance in
which the risk is limited, not to a given voyage,
but to a certain fiked term or period of time.
TIMOCRACY. An aristocracy of property; gov-
ernment by men of property who are possessed
of a certain income.
TIMORES VANI SUNT AESTIMANDI QUI NON
CADUNT CONSTANTEM VIRUM. 7 Coke, 17.
Fears which do not assail a resolute man are to
be accounted vain.
TINBOUNDING. A custom regulating the man-
ner in which tin is obtained from wasteland, or
land which has formerly been wasteland, within
certain districts in Cornwall and Devon. The cus-
tom is described in the leading case on the sub-
ject as follows: "Any person may enter on the
waste-land of another, and may mark out by four
corner boundaries a certain area. A written de-
scription of the plot of land so marked out with
metes and bounds, and the name of the person,
is recorded in the local stannaries court, and is
proclaimed on three successive court-days. If no
objection is sustained by any other person, the
court awards a writ to the bailiff to deliver pos-
session of the said 'bounds of tinwork' to the
`bounder,' who thereupon has the exclusive right
to search for, dig, and take for his own use all tin
and tin-ore within the inclosed limits, paying as a
royalty to the owner of the waste a certain pro-
portion of the produce under the name of 'toll-
tin.' " 10 Q.B. 26, cited in Elton Commons, 113.
The right of tinbounding is not a right of com-
mon, but is an interest in land, and, in Devon-
shire, a corporeal hereditament. In Cornwall tin
bounds are personal estate. Sweet.
TINEL. L. Fr. A place where justice was ad-
ministered. Kelham.
TINEMAN. Sax. In old forest law. A petty
officer of the forest who had the care of vert and
venison by night, and performed other servile du-
ties.
TINET. In old records. Brush-wood and thorns
for fencing and hedging. Cowell; Blount.
TINEWALD. The ancient parliament or annual
convention in the Isle of Man, held upon Mid-
summer-day, at St. John's chapel. Cowell.
TINKERMEN. Fishermen who destroyed the
young fry on the river Thames by nets and un-
lawful engines. Cowell.
TINNELLUS. In old Scotch law. The sea-mark;
high-water mark. Tide-mouth. Skene.
TINPENNY. A tribute paid for the liberty of
digging in tin-mines. Cowell.
TINSEL OF THE FEU. In Scotch law. The loss
of the feu, from allowing two years of feu duty
to run into the third unpaid. Bell.
TIP. A sum' of money given, as to a servant
usually to secure better or more prompt service.
Restaurants and Patisseries Longchamps v. Ped-
rick, D.C.N.Y., 52 F.Supp. 174. A gift.. Williams
v. Jacksonville Terminal Co., C.C.A.Fla., 118 F.2d
324, 325.
TIPPLING HOUSE. A place where intoxicating
drinks are sold in drams or small quantities to
be drunk on the premises, and where men resort
for drinking purposes. Hussey v. State, 69 Ga. 58;
Emporia v. Volmer, 12 Kan. 629; Mohrman v.
State, 32 S.E. 143, 105 Ga. 709, 43 L.R.A. 398, 70
Am.St.Rep. 74.
TIPSTAFF. In American law. An officer appoint
ed by the court, whose duty is to wait upon the
court when it is in session, preserve order, serve
process, guard juries, etc.
In English law. An officer appointed by the
marshal of the king's bench to attend upon the
judges with a kind of rod or staff tipped with
silver, who take into their custody all prisoners,
either committed or turned over by the judges at
their chambers, etc. Jacob.
TITHER. One who gathers tithes.
TITHES. In English law. The tenth part of the
increase, yearly arising and renewing from the.
profits of lands, the stock upon lands, and the
personal industry of the inhabitants. 2 Bl.Comm.
24. A species of incorporeal hereditament, being
an ecclesiastical inheritance collateral to the es-
tate of the land, and due only to an ecclesiastical
person by ecclesiastical law. 1 Crabb, Real Prop..
§ 133.
Great Tithes
In English ecclesiastical law. Tithes of corn,.
peas and beans, hay and wood. 2 Chit.B1.Comm.
24, note; 3 Steph.Comm. 127.
Minute Tithes
Small tithes, such as usually belong to a vicar,.
as of wool, lambs, pigs, butter, cheese, herbs,,
seeds, eggs, honey, wax, etc.
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TITLE
Mixed Tithes
Those which arise not immediately from the
ground, but from those things which are nourish-
ed by the ground, e. g., colts, chickens, calves,
milk, eggs, etc. 3 Burn, Ecc. Law, 380; 2 Bl.
Comm. 24.
Personal Tithes
Personal tithes are tithes paid of such profits
as come by the labor of a man's person; as by
buying and selling, gains of merchandise and
handicrafts, etc. Tomlins.
Predial Tithes
Such as arise immediately from the ground;
as, grain of all sorts, hay, wood, fruits, and herbs.
Tithe-Free
Exempted from the payment of tithes.
Tithe Rent-Charge
A rent-charge established in lieu of tithes, un-
der the tithes commutation act, 1836, (St. 6 & 7
Wm. IV. c. 71.) As between landlord and tenant,
the tenant paying the tithe rent-charge is entitled,
in the absence of express agreement, to deduct it
from his rent, under section 70 of the above act.
And a tithe rent-charge unpaid is recoverable by
distress as rent in arrear. Mozley & Whitley.
TITHING. One of the civil divisions of England,
being a portion of that greater division called
a "hundred." It was so called because ten free-
holders with their families composed one. It is
said that they were all knit together in one so-
ciety, and bound to the king for the peaceable be-
havior of each other. In each of these societies
there was one chief or principal person, who, from
his office, was called "teothing-man," now "tith-
ing-man." Brown.
TITHING-MAN,
Modern Law
A constable. "After the introduction of justices
of the peace, the offices of constable and tithing-
man became so similar that we now regard them
as precisely the same." Willc. Const. Introd.
New England
A parish officer annually elected to preserve
good order in the church during divine service,
and to make complaint of any disorderly conduct.
Webster, Diet.
In Saxon Law
The head or chief of a tithing or decennary of
ten families; he was to decide all lesser causes
between neighbors. Jacob, Law Dict. In modern
English law, he is the same as an under-constable
or peace-officer.
TITHING-PENNY. In Saxon and old English
law. Money paid to the sheriff by the several
tithings of his county. Cowell.
TITIUS. In Roman law. A proper name, fre-
quently used in designating an indefthite or ficti-
tious person, or a person referred to by way of
illustration.  "Titius" and "Seius," in this use,
correspond to "John Doe" and "Richard Roe,"
or to "A. B." and "C. D."
TITLE. The radical meaning of this word ap-
pears to be that of a mark, style, or designation;
a distinctive appellation; the name by which any-
thing is known. Thus, in the law of persons, a
title is an appellation of dignity or distinction, a
name denoting the social rank of the person bear-
ing it; as "duke" or "count." So, in legislation,
the title of a statute is the heading or prelimin-
ary part, furnishing the name by which the act
is individually known. It is usually prefixed to
the statute in the form of a brief summary of
its contents; as "An act for the prevention of
gaming." State v. Thomas, 301 Mo. 603, 256 S.W.
1028, 1029. Again, the title of a patent is the
short description of the invention, which is copied
in the letters patent from the inventor's petition;
e. g., "a new and improved method of drying and
preparing malt." Johns. Pat. Man. 90.
The title of a book, or any literary composition,
is its name; that is, the heading or caption pre-
fixed to it, and disclosing the distinctive appella-
tion by which it is to be known. This usually
comprises a brief description of its subject-matter
and the name of its author.
"Title" is also used as the name of one of the subdivi-
sions employed in many literary works, standing inter-
mediate between the divisions denoted by the term
"books" or "parts," and those designated as "chapters"
and "sections."
Law of Trade-Marks
A title may become a subject of property; as
one who has adopted a particular title for a news-
paper, or other business enterprise, may, by long
and prior user, or by compliance with statutory
provisions as to registration and notice, acquire
a right to be protected in the exclusive use of it.
Abbott.
Real Property Law
Title is the means whereby the owner of lands
has the just possession of his property. Co. Litt.
345; 2 Bl.Comm. 195; Homey v.. Price, 189 N.C.
820, 128 S.E. 321, 323; Hahn v. Fletcher, 189 N.C.
729, 128 S.E. 326, 327; Wimpey v. Ledford, Mo.
Sup., 11 A.L.R. 7, 177 S.W. 302, 304; Case v. Mort-
gage Guarantee and Title Co., 52 R.I. 155, 158 A.
724, 726. The union of all the elements which
constitute ownership. Carroll v. City of Newark,
108 N.J.L. 323, 158 A. 458, 461. Full, independent
and fee ownership. In re Pelis' Estate, 150 Misc.
918, 271 N.Y.S. 731. The right to or ownership in
land. Andrews v. New Britain Nat. Bank, 113
Conn. 467, 155 A. 838, 840.
Title may be defined generally to be the evidence of
right which a person has to the possession of property.
The word "title" certainly does not merely signify the
right which a person has to the possession of property;
because there are many instances in which a person may
have the right to the possession of property, and at the
same time have no title to the same. In its ordinary legal
acceptation, however, it generally seems to imply a right
of possession also. It ,therefore, appears, on the whole, to
signify the outward evidence of the right, rather than the
mere right itself. Thus, when it is said that the "most
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TITLE
Imperfect degree of title consists in the mere naked pos-
session or actual occupation of an estate," it means that
the mere circumstance of occupying the estate is the weak-
est species of evidence of the occupier's right to such pos-
session. The word is defined by Sir Edward Coke thus :
Titulus est justa causa possidendi id quod nostrum est,
(1 Inst. 34;) that is to say, the ground whether purchase,
gift, or other such ground of acquiring; "titulus" being
distinguished in this respect from "modus acquirendi,"
which is the traditio, e., delivery or conveyance of the
thing. Brown.
Title is when a man hath lawful cause of entry into
lands, whereof another is seised; and it signifies also the
means whereby a man comes to lands or tenements, as by
feoffment, last will and testament, etc. The word "title"
includes a right, but is the more general word. Every
right is a title, though every title is not a right, for which
an action lies. Jacob.
The investigation of titles is one of the principal branch-
es of conveyancing and in that practice the word "title"
has acquired the sense of "history," rather than of "right."
Thus, we speak of an abstract of title, and of investigat-
ing a title, and describe a document as forming part of the
title to property. Sweet.
Pleading
The right of action which the plaintiff has. The
declaration must show the plaintiff's title, and, if
such title be not shown in that instrument, the
defect cannot be cured by any of the future plead-
ings. Bac. Abr. "Pleas," etc., B 1.
Procedure
Every action, petition, or other proceeding has
a title, which consists of the name of the court
in which it is pending, the names of the parties,
etc. Administration actions are further distin-
guished by the name of the deceased person whose
estate is being administered. Every pleading,
summons, affidavit, etc., commences with the title.
In many cases it is sufficient to give what is called
the "short title" of an action, namely, the court,
the reference to the record, and the surnames
of the first plaintiff and the first defendant.
Sweet.
General
Absolute title. As applied to title to land, an
exclusive title, or at least a title which excludes
all others not compatible with it; an absolute
title to land cannot exist at the same time in
different persons or in different governments.
Johnson v. McIntosh, 21 U.S. 543, 8 Wheat. 543,
5,98, 5 L.Ed. 681.
Abstract of title. See that title.
Adverse title. A title set up in opposition to or
defeasance of another title, or one acquired or
claimed by adverse possession.
Bond for title. See Bond.
Chain of title. See that title.
Clear title, good title, merchantable title, mar-
ketable title, are synonymous; "clear title" mean-
ing that the land is free from incumbrances, "good
title" being one free from litigation, palpable de-
fects, and grave doubts, comprising both legal and
equitable titles and fairly deducible of record.
Ogg v. Herman, 71 Mont. 10, 227 P. 476, 477;
Veselka v. Forres, Tex.Civ.App., 283 S.W. 303, 306;
Sipe v. Greenfield, 116 Okl. 241, 244 P. 424, 425.
Clear title of record, or clear record title, means
freedom from apparent defects, grave doubts, and
litigious uncertainties, and is such title as a rea-
sonably prudent person, with full knowledge,
would accept. A title dependent for its validity
on extraneous evidence, ex parte affidavits, or
written guaranties against the results of litigation
is not a clear title of record, and is not such title
as equity will require a purchaser to accept. Am-
merman v. Karnowski, 109 Okl. 156, 234 P. 774,
776; Cleval v. Sullivan, 258 Mass. 348, 154 N.E.
920, 921.
Color of title. See that title.
Covenants for title. Covenants usually inserted
in a conveyance of land, on the part of the gran-
tor, and binding him for the completeness, securi-
ty, and continuance of the title transferred to the
grantee. They comprise "covenants for seisin,
for right to convey, against incumbrances, for
quiet enjoyment, sometimes 'for further assurance,
and almost always of warranty." Rawle, Co y . §
21.
Doubtful title. See that title.
Equitable title. A right in the party to whom it
belongs to have the legal title transferred to him;
or the beneficial interest of one person whom
equity regards as the real owner, although the
legal title is vested in another. Wyatt v. Meade
County Bank, 40 S.D. 111, 166 N.W. 423, 424;
Pogue v. Simon, 47 Or. 6, 81 P. 566, 567, 114 Am.
St.Rep. 903, 8 Ann.Cas. 474; Karalis v. Agnew,
111 Minn. 522, 127 N.W. 440, 441; Joy v. Midland
State Bank of Omaha, Neb., 28 S.D. 262, 133 N.
W. 276, 277; Harris v. Mason, 120 Tenn. 668, 115
S.W. 1146, 25 L.R.A.(N.S.) 1101; Niles v. Ander-
son, 5 How. (Miss.) 365, 385, quoted in Ayres v.
U. S., 42 Ct.C1. 385, 413. See Equitable Estate.
Examination of title, see Examination.
Imperfect title. One which requires a further
exercise of the granting power to pass the fee in
land, or which does not convey full and absolute
dominion. Paschal v. Perez, 7 Tex. 367; Paschal
v. Dangerfield, 37 Tex. 300; Lambert v. Gant. Tex.
Civ.App., 290 S.W. 548, 551.
Legal title. See that title.
Lucrative title. In the civil law, title acquired
without the giving of anything in exchange for it;
the title by which a person acquires anything
which comes to him as a clear gain, as, for in-
stance, by gift, descent, or devise. Opposed to
"onerous title," as to which see infra.
Marketable title. See that title.
Onerous title. In the civil law, title to prop-
erty acquired by the giving of a valuable consid-
eration for it, such as the payment of money, the
rendition of services, the performance of condi-
tions, the assumption of obligations, or the dis-
charge of liens on the property; opposed to "lu-
crative" title, or one acquired by gift or otherwise
without the giving of an equivalent. Scott v.
Ward, 13 Cal. 471; Kircher v. Murray, C.C.A.Tex.,
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54 F. 617, 624; Yates v. Houston, 3 Tex. 453; Rev.
Civ.Code La. 1900, art. 3556, subd. 22.
Paper title. A title to land evidenced by a con-
veyance or chain of conveyances; the term gen-
erally implying that such title, while it has color
or plausibility, is without substantial validity.
Passive title. In Scotch law. A title incurred
by an heir in heritage who does not enter as heir
in the regular way, and therefore incurs liability
for all the debts of the decedent, irrespective of
the amount of assets. Paterson.
Perfect title. Various meanings have been at-
tached to this term: (1) One which shows the
absolute right of possession and of property in a
particular person. Henderson v. Beatty, 124
Iowa, 163, 99 N.W. 716; Wilcox Lumber Co. v.
Bullock, 109 Ga. 532, 35 S.E. 52; Donovan v. Pitch-
er, 53 Ala. 411, 25 Am.Rep. 634. (2) A grant of
land which requires no further act from the legal
authority to constitute an absolute title to the
land taking effect at once. Hancock v. McKinney,
7 Tex. 457. (3) A title which does not disclose a
patent defect suggesting the possibility of a law-
suit to defend it; a title such as a well-informed
and prudent man paying full value for the prop-
erty would be willing to take. Birge v. Bock, 44
Mo.App. 77. (4) A title which is good both at law
and in equity. Warner v. Middlesex Mut. Assur.
Co., 21 Conn. 449. (5) One which is good and
valid beyond all reasonable doubt. Sheehy v.
Miles, 93 Cal. 288, 28 P. 1046; Reynolds v. Borel,
86 Cal. 538, 25 P. 67. (6) A marketable or mer-
chantable title. Ross v. Smiley, 18 Colo.App. 204,
70 P. 766; McCleary v. Chipman, 32 Ind.App. 489,
68 N.E. 320.
Presumptive title. A barely presumptive title,
which is of the very lowest order, arises out of
the mere occupation or simple possession of prop-
erty, (jus possessionis,) without any apparent
right, or any pretense of right, to hold and con-
tinue such possession.
Record title. See Record.
Singular title. The title by which a party ac-
quires property as a singular successor.
Tax title. See Tax.
Title by adverse possession or prescription. The
right which a possessor acquires to property by
reason of his adverse possession during a period
of time fixed by law. Walker v. Steffes, 139 Ga.
520, 77 S.E. 580.
The elements of "title by prescription" are open, visible
and continuous use under a claim of right, adverse to and
with knowledge of owner. Dry Gulch Ditch Co. v. Hutton,
170 Or. 656, 133 P.2d 601, 610.
Such title is equivalent to a "title by deed" and cannot
be lost or divested except in the same manner, and mere
recognition of title in another after such acquisition will
not operate to divest the adverse claimant of that which
he has acquired. Maloney v. Bedford, 290 Ky. 647, 162 S.
W.2d 198, 199.
Title by descent. That title which one acquires
by law as heir to the deceased owner. Stabel v.
Gertel, N.J.Sup., 11 N.J.Misc. 247, 165 A. 876, 879.
Title by prescription. See Title by adverse pos-
session, supra.
Title deeds. Deeds which constitute or are the
evidence of title to lands.
Title defective in form. Title on face of which
some defect appears, not one that may prove de-
fective by circumstances or evidence dehors the
instrument. Title defective in form cannot be
basis of prescription. Thompson v. Futral, 18 La.
App. 685, 136 So. 654.
Title insurance. See Insurance.
Title of a cause. The distinctive appellation by
which any cause in court, or other juridical pro-
ceeding, is known and discriminated from others.
Title of an act. The heading, or introductory
clause, of a statute, wherein is briefly recited its
purpose or nature, or the subject to which it re-
lates.
Title of clergymen, (to orders.) Some certain
place where they may exercise their functions;
also an assurance of being preferred to some
ecclesiastical benefice. 2 Steph.Comm. 661.
Title of declaration. That preliminary clause
of a declaration which states the name of the
court and the term to which the process is re-
turnable.
Title of entry. The right to enter upon lands.
Cowell.
Title retention. A form of lien, in the nature of
a chattel mortgage, to secure the purchase price.
American Indemnity Co. v. Allen, for Use and
Benefit of Commerce Union Bank, 176 Tenn. 134,
138 S.W.2d 445, 446.
Title to orders. In English ecclesiastical law,
a title to orders is a certificate of preferment or
provision required by the thirty-third canon, in
order that a person may be admitted into holy
orders, unless he be a fellow or chaplain in Ox-
ford or Cambridge, or master of arts of five
years' standing in either of the universities, and
living there at his sole charges; or unless the
bishop himself intends shortly to admit him to
some benefice or curacy. 2 Steph.Comm. 661.
Unmarketable title. See that title.
TITULADA. In Spanish law. Title. White, New
Recop. b. 1, tit. 5, c. 3, § 2.
TITULARS OF ERECTION. Persons who in
Scotland, after the Reformation, obtained grants
from the crown of the monasteries and priories
then erected into temporal lordships. Thus the
titles formerly held by the religious houses, as
well as the property of the lands, were conferred
on these grantees, who were also called "lords of
erection" and "titulars of the teinds." Bell.
TITULUS. Lat. Title. In the civil law. The
source or ground of possession; the means where-
by possession of a thing is acquired, whether
such possession be lawful or not.
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In old Ecclesiastical law. A temple or church;
the material edifice. So called because the priest
in charge of it derived therefrom his name and
title. Spelman.
TITULUS EST JUSTA CAUSA POSSIDENDI ID
QUOD NOSTRUM EST; DICITUR A TUENDO.
8 Coke, 153. A title is the just right of possessing
that which is our own; it is so called from "tuen-
do," defending.
TO. This is ordinarily a word of exclusion, when
used in describing premises; it excludes the term-
inus mentioned. Littlefield v. Hubbard, 120 Me.
226, 113 A. 304, 306; Sinford v. Watts, 123 Me. 230,
122 A. 573, 574; Skeritt Inv. Co. v. City of Engle-
wood, 79 Colo. 645, 248 P. 6, 8. It may be a word
of inclusion, and may also mean "into." People
v. Poole, 284 Ill. 39, 119 N.E. 916, 917; Thompson
v. Reynolds, 59 Utah, 416, 204 P. 516, 518.
TO HAVE AND TO HOLD. The words in a con-
veyance which show the estate intended to be
conveyed. Thus, in a conveyance of land in fee-
simple, the grant is to "A. and his heirs, to have
and to hold the said [land] unto and to the use
of the said A., his heirs and assigns forever."
Williams, Real Prop. 198.
Strictly speaking, however, the words "to have" denote
the estate to be taken, while the words "to hold" signify
that it is to be held of some superior lord, i. e., by way of
tenure, (q. v.). The former clause is called the "haben-
dum;" the latter, the "tenendum." Co. Litt. 6a.
TO WIT. That is to say; namely; scilicet; vide-
licet. Spears v. Wise, 187 Ala. 346, 65 So. 786;
Williams v. Shows, 187 Ala. 132, 65 So. 839, 840;
J. R. Kilgore & Son v. Shannon & Co., 6 Ala.App.
537, 60 So. 520, 525.
TOALIA. In feudal law. A towel. There is a
tenure of lands by the service of waiting with a
towel at the king's coronation. Cowell.
TOBACCONIST. Any person, firm, or corporation
whose business it is to manufacture cigars, snuff,
or tobacco in any form. Act of congress of July
13, 1866, § 9 (14 Stat. 120).
TOFT. A place or piece of ground on which
a house formerly stood, which has been destroyed
by accident or decay. 2 Broom & H.Comm. 17.
TOFTMAN. In old English law. The owner of a
toft. Cowell; Spelman.
TOGATI. Lat. In Roman law. Advocates; so
called under the empire because they were re-
quired, when appearing in court to plead a cause,
to wear the toga, which had then ceased to be
the customary dress in Rome. Vicat.
TOGETHER. In union with, along with. Gil-
more v. Mulvihill, 109 Mont. 601, 98 P.2d 335, 341.
TOILET. Act or process of dressing up. Inecto,
Inc., v. Higgins, D.C.N.Y., 21 F.Supp. 418, 426. A
cleansing and grooming of one's person. Mennen
Co. v. Kelly, C.C.A.N.J., 137 F.2d 866, 868.
TOILET PREPARATION. Within statute taxing
a "toilet preparation", any preparation which is
intended to affect, and conceivably, to improve the
bodily appearance. Peroxide Chemical Co. v. Shee-
han, C.C.A.Mo., 108 F.2d 306, 308, 309.
TOKEN. A sign or mark; a material evidence
of the existence of a fact. Thus, cheating by
"false tokens" implies the use of fabricated or
deceitfully contrived material objects to assist
the person's own fraud and falsehood in accom-
plishing the cheat. See State v. Green, 18 N.J.
Law, 181; State v. Leonard, 73 Or. 451, 144 P. 113,
118; Smith v. State, 74 Fla. 594, 77 So. 274, 277;
State v. Whiteaker, 64 Or. 297, 129 P. 534, 537.
TOKEN-MONEY. A conventional medium of ex-
change consisting of pieces of metal, fashioned
in the shape and size of coins, and circulating
among private persons, by consent, at a certain
value. No longer permitted or recognized as
money. 2 Chit.Com.Law, 182.
TOLERATE. To allow so as not to hinder; to
permit as something not wholly approved of ; to
suffer; to endure. Gregory v. U. S., 17 Blatchf.
330, Fed.Cas.No. 5,803.
TOLERATION. The allowance of religious opin-
ions and modes of worship which are contrary to,
or different from, those of the established church
or belief. Webster.
TOLERATION ACT. The statute 1 W. & M. St.
1, c. 18, for exempting Protestant dissenters from
the penalties of certain laws is so called. Brown.
TOLL, v. To bar, defeat, or take away; thus,
to toll the entry means to deny or take away the
right of entry.
To toll the statute of limitations means to show
facts which remove its bar of the action.
TOLL, n. A sum of money for the use of some-
thing, generally applied to the consideration which
is paid for the use of a road, bridge, or the like,
of a public nature. See Sands v. Manistee River
Imp. Co., 8 S.Ct. 113, 123 U.S. 288, 31 L.Ed. 149;
Anthony v. Kozer, D.C.Or., 11 F.2d 641, 645; City
of Madera v. Black, 181 Cal. 306, 184 P. 397, 400;
Rogge v. United States, C.C.A.Alaska, 128 F.2d
800, 802. The price of the privilege of travel over
that particular highway and it is a quid pro quo
and rests on principle that he who receives the
toll does or has done something as an equivalent
to him who pays it. State ex rel. Washington
Toll Bridge Authority v. Yelle, 195 Wash. 636, 82
P.2d 120, 125.
In English law. An excise of goods; a seizure
of some part for permission of the rest. It has
two significations: A liberty to buy and sell with-
in the precincts of the manor, which seems to im-
port as much as a fair or market; a tribute or
custom paid for passage. Wharton.
A Saxon word signifying, properly, a payment in towns,
markets, and fairs for goods and cattle bought and sold.
It is a reasonable sum of money due to the owner of the
fair or market, upon sale of things tollable within the
same. The word is used for a liberty as well to take as to
be free from toll. Jacob.
In modern English law. A reasonable sum
due to the lord of a fair or market for things sold
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there which are tollable. 1 Crabb, Real Prop. p.
350, § 683.
Toll and Team
Words constantly associated with Saxon and
old English grants of liberties to the lords of
manors. Bract. fols. 56, 104b, 124b, 154b. They
appear to have imported the privileges of having
a market, and jurisdiction of villeins. See Team.
Toll Bridge
A part of the public highway the same as a
bridge built by general taxation, the only differ-
ence being that it is made at the expense of others,
instead of the public, and the cost of construction
and maintenance is reimbursed by a toll fixed for
the purpose. White River Bridge Co. v. Hurd,
159 Ark. 652, 252 S.W. 917.
Toll Road
A road or highway over which the public has
the right to travel upon payment of toll, and on
which the parties entitled to such toll have the
right to erect gates and bars to insure its payment.
In re Newland, C.C.A.Pa., 115 F.2d 165, 166.
Toll Gatherer
The officer who takes or collects toll.
Toll-Thorough
In English law. A toll for passing through a
highway, or over a ferry or bridge. Cowell. A
toll paid to a town for such a number of beasts,
or for every beast that goes through the town, or
over a bridge or ferry belonging to it. Corn. Dig.
"Toll." C. A toll claimed by an individual where
he is bound to repair some particular highway.
3 Steph.Comm. 257. And see King v. Nicholson,
12 East, 340; Charles River Bridge v. Warren
Bridge, 11 Pet. 582, 9 L.Ed. 773.
Toll Traverse
In English law. A toll for passing over a pri-
vate man's ground. Cowell. A toll for passing
over the private soil of another, or for driving
beasts across his ground. Cro.Eliz. 710.
Toll-Turn
In English law. A toll on beasts returning
from a market. 1 Crabb, Real Prop. p. 101, § 102.
A toll paid at the return of beasts from fair or
market, though they were not sold. Cowell.
TOLLAGE. Payment of toll; money charged or
paid as toll; the liberty or franchise of charging
toll.
TOLLBOOTH. A prison; a customhouse; an
exchange; also the place where goods are weigh-
ed. Wharton.
TOLLDISH. A vessel by which the toll of corn
for grinding is measured.
TOLLE VOLUNTATEM ET ERIT OMNIS ACTUS
INDIFFERENS. Take away the will, and every
action will be indifferent. Bract. fol. 2.
TOLLER. One who collects tribute or taxes.
TOLLERE. Lat. In the civil law. To lift up or
raise; to elevate; to build up.
TOLLS. In a general sense, any manner of cus-
toms, subsidy, prestation, imposition, or sum of
money demanded for exporting or importing of
any wares or merchandise to be taken of the buy-
er. 2 Inst. 58. For "Fair and Reasonable Tolls,"
see that title.
TOLLSESTER. An old excise; a duty paid by
tenants of some manors to the lord for liberty to
brew and sell ale. Cowell.
TOLSEY. The same as "tollbooth." Also a place
where merchants meet; a local tribunal for small
civil causes held at the Guildhall, Bristol.
TOLT. A writ whereby a cause depending in a
court baron was taken and removed into a coun-
ty court. Old Nat. Brev. 4.
TOLTA. In old English law. Wrong; rapine;
extortion. Cowell.
TOLZEY COURT. An inferior court of record
having civil jurisdiction, still existing at Bristol,
England.
TOMB. An excavation in earth or rock, intended
to receive the dead body of a human being. Leap-
hart v. Harmon, 186 S.C. 362, 195 S.E. 628, 629.
TOMBSTONE. Stone marking place of burial and
usually inscribed with memorial of deceased.
Anshe Sephard Congregation v. Weisblatt, 170 Md.
390, 185 A. 107, 108.
TON. A measure of weight; differently fixed,
by different statutes, at two thousand pounds
avoirdupois, (1 Rev.St.N.Y. 609, § 35,) or at twenty
hundred-weights, each hundred-weight being one
hundred and twelve pounds avoirdupois, [19 U.S.
C.A. § 4201) ; Chemung Iron & Steel Co. v. Mer-
sereau Metal Bed Co., Sup., 179 N.Y.S. 577, 578.
TONNAGE. The capacity of a vessel for carry-
ing freight or other loads, calculated in tons. But
the way of estimating the tonnage varies in differ-
ent countries. In England, tonnage denotes the
actual weight in tons which the vessel can safely
carry; in America, her carrying capacity estimat-
ed from the cubic dimensions of the hold. See
Roberts v. Opdyke, 40 N.Y. 259; Kiessig v. San
Diego County, 51 Cal.App.2d 47, 124 P.2d 163, 166.
The "tonnage" of a vessel is her capacity to carry cargo,
and a charter of "the whole tonnage" of a ship transfers
to the charterer only the space necessary for that purpose.
Thwing v. Insurance Co., 103 Mass. 405, 4 Am.Rep. 567.
The tonnage of a vessel is her internal cubical capacity,
in tons. Inman S. S. Co. v, Tinker, 94 U.S. 238, 24 L.Ed.
118.
TONNAGE—DUTY.
In American law. A tax laid upon vessels ac-
cording to their tonnage or cubical capacity.
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A tonnage duty is a duty imposed on vessels in propor-
tion to their capacity. The vital principle of a tonnage
duty is that it is imposed, whatever the subject, solely
according to the rule of weight; either as to the capacity to
carry or the actual weight of the thing itself. Inman S. S.
Co. v. Tinker, 94 U.S. 238, 24 L.Ed. 118; Ross v. Mayor
and Council of Borough of Edgewater, 115 N.J.L. 477, 180
A. 866.
A tonnage tax is defined to be a duty levied on a vessel
according to the tonnage or capacity. It is a tax upon
the boat as an instrument of navigation, and not a tax
upon the property of a citizen of the state. The Math
Cape, 6 Biss. 505. Fed.Cas.No.10,316.
In English law. A duty imposed by parliament
upon merchandise exported and imported, accord.
ing to a certain rate upon every ton. Brown.
TONNAGE-RENT. When the rent reserved by
a mining lease or the like consists of a royalty
on every ton of minerals gotten in the mine, it is
often called a "tonnage-rent." There is generally
a dead rent in addition. Sweet.
TONNAGIUM. In old English law. A custom or
impost upon wines and other merchandise export-
ed or imported, according to a certain rate per
ton. Spelman; Cowell.
TONNETIGHT. In old English law. The quan-
tity of a ton or tun, in a ship's freight or bulk, for
which tonnage or tunnage was paid to the king.
Cowell.
TONODERACH. In old Scotch law. A thief-
taker.
TONSURA. Lat. In old English law. A shaving,
or polling; the having the crown of the head
shaven; tonsure. One of the peculiar badges of a
clerk or clergyman.
TONSURE. In old English law. A being shaven;
the having the head shaven; a shaven head. 4
Bl. Comm. 367.
TONTINE. In French law. A species of asso-
ciation or partnership formed among persons who
are in receipt of perpetual or life annuities, with
the agreement that the shares or annuities of
those who die shall accrue to the survivors. This
plan is said to be thus named from Tonti, an Ital-
ian, who invented it in the seventeenth century.
The principle is used in some forms of life insur-
ance. Merl. Repert; Cahn v. Northwestern Mut.
Life Ins. Co., 208 Ill.App. 317, 322; Gourley v.
Northwestern Nat. Life Ins. Co., 94 Okl. 46, 220 P.
645, 646.
Under the "Tontine" plan of insurance, no accumulation
or earnings are credited to the policy unless it remains in
force for the Tontine period of a specified number of years.
Thus those who survive the period and keep their policies
in force share in the accumulated funds and those who die
or permit their policies to lapse during period do not;
neither do their beneficiaries participate in such accumula-
tion. Commercial Travelers' Ins. Co. v. Carlson, 104 Utah
41, 137 P.2d 656, 660.
TOOK AND CARRIED AWAY. In criminal plead-
ing. Technical words necessary in an indictment
for simple larceny.
TOOL. An instrument of manual operation, that
is, an instrument to be used and managed by the
hand instead of being moved and controlled by
machinery. Lovewell v. Westchester F. Ins. Co.,
124 Mass. 420, 26 Am.Rep. 671; Reffitt v. Southern
Sheet & Tin Plate Co., 170 Ky. 362, 186 S.W. 155,
157; Sturgis Nat. Bank v. Maryland Casualty Co.,
252 Mich. 426, 233 N.W. 367, 369.
Simple Tool
In law of Master and Servant. One whose con-
dition can be seen at a glance, or by slightest in-
spection. Track wrench used to tighten and loosen
nuts on railroad track held "simple tool." Allen
Gravel Co. v. Yarbrough, 133 Mass. 652, 98 So. 117,
118; Arkansas Cent. R. Co. v. Goad, 136 Ark. 467,
206 S.W. 901, 902; Swaim v. Chicago, R. I. & P.
Ry. Co., Iowa, 170 N.W. 296, 299; Kromer v. Minne-
apolis, St. P. & S. S. M. Ry. Co., 139 Minn. 424,
166 N.W. 1072, 1073; Ronconi v. Northwestern
Pac. R. Co., 35 Cal.App. 560, 170 P. 635, 636.
"Simple tool doctrine" is based on the idea that ordi-
narily an employee has better opportunity than employer
to observe defects and guard himself against them and
that the employer should not be charged with duty of care
or safety of employee with respect to a matter in which
the employee is in better position to care for himself. A
"tool" is an instrument of manual operation. Tucker v.
Holly Hill Lumber Co., 200 S.C. 259, 20 S.E.2d 704, 706.
Tools of Trade, Apparatus of Trade
And like terms under exemption statutes and
bankruptcy act cover tools that vary according to
the trade, handicraft or art in which they are
used. The meaning of the word "tool" dominates
the meaning of such terms. Corner v. Powell,
Tex.Civ.App., 189 S.W. 88, 91; Lindquist v. Clay-
ton, 54 Utah 79, 179 P. 655, 656; Hooper v. Ken-
nedy, 100 Vt. 314, 137 A. 194, 196; Busse v. Mur-
ray Meat & Live Stock Co., 45 Utah 596, 147 P.
626, 628.
TORPEDO DOCTRINE. Attractive nuisance doc-
trine. Schock v. Ringling Bros. and Barnum &
Bailey Combined Shows, 5 Wash.2d 599, 105 P.2d
838, 843.
TORRENS TITLE SYSTEM. A system under
which, upon the landowner's application the court
may, after appropriate proceedings, direct the
issuance of a certificate of title. With exceptions,
this certificate is conclusive as to applicant's es-
tate in land. This system is so called, the author
being Sir Robert Torrens.
TORT (from Lat. torquere, to twist, tortus, twist-
ed, wrested aside). A private or civil wrong or
injury. A wrong independent of contract. 1 Hill,
Torts 1. A violation of a duty imposed by gen-
eral law or otherwise upon all persons occupying
the relation to each other which is involved in a
given transaction. Coleman v. California Yearly
Meeting of Friends Church, 27 Cal.App.2d 579, 81
P.2d 469, 470. There -must always be a violation
of some duty owing to plaintiff, and generally
such duty must arise by operation of law and not
by mere agreement of the parties. Diver v. Miller,
Del.Super., 148 A. 291, 293.
Three elements of every tort action are: Existence of
legal duty from defendant to plaintiff, breach of duty, and
damage as proximate result. City of Mobile v. McClure,
221 Ala. 51, 127 So. 832, 835.
A legal wrong committed upon the person or property
independent of contract. It may be either (1) a direct in-
vasion of some legal right of the individual; (2) the in-
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fraction of some public duty by which special damage
accrues to the individual; (3) the violation of some private
obligation by which like damage accrues to the individual.
In the former case, no special damage is necessary to en-
title the party to recover. In the two latter cases, such
damage is necessary. Code Ga. 1882, § 2951 (Civ.Code 1910,
§ 4403). And see Hayes v. Insurance Co., 125 Ill. 626, 18
N.E. 322, 1 L.R.A. 303; Railway Co. v. Hennegan, 33 Tex.
Civ.App. 314, 76 S.W. 453. Churchill v. Howe, 186 Mich.
107, 152 N.W. 989, 991; Strachan Shipping Co. v. Hazlip-
Hood Cotton Co., 35 Ga.App. 94, 132 S.E. 454, 459; Keiper
v. Anderson, 138 Minn. 392, 165 N.W. 237, 239, I.4.R.A.1918C,
299. A violation of a right in rem which plaintiff has as
against all persons with whom he comes in contact or the
violation of a right which is created by law and not by any
act of parties. Mitchell v. Health Culture Co., 349 Mo. 475,
162 S.W.2d 233, 237.
Maritime Tort
See Maritime.
Personal Tort
One involving or consisting in an injury to the
person or to the reputation or feelings, as distin-
guished from an injury or damage to real or per-
sonal property, called a "property tort." Mum-
ford v. Wright, 12 Colo.App. 214, 55 P. 744. Gray
v. Blight, C.C.A.Colo., 112 F.2d 696, 699.
Property Tort
See Personal Tort, supra.
Quasi Tort
Though not a recognized term of English law,
may be conveniently used in those cases where a
man who has not committed a tort is liable as if
he had. Thus, a master is liable for wrongful
acts done by his servant in the course of his em-
ployment. Broom, Corn. Law, 690; Underh. Torts,
29.
Willful Tort
See that title.
TORT-FEASOR. A wrong-doer; one who com-
mits or is guilty of a tort. Gordon v. Lee, 133 Me.
361, 178 A. 353, 355.
Joint Tort•Feasors
To be "joint tort-feasors," the parties must ei-
ther act together in committing the wrong, or
their acts, if independent of each other, must
unite in causing a single injury. Young v. Dille,
127 Wash. 398, 220 P. 782, 784; Anderson v. Smith,
Tex.Civ.App., 231 S.W. 142, 144; Kirkland v. En-
sign-Bickford Co., D.C.Conn., 267 F. 472, 475;
Verheyen v. Dewey, 27 Idaho 1, 146 P. 1116, 1119;
The Ross Coddington, C.C.A.N.Y., 6 F.2d 191, 192;
Anderson v. Smith, Tex.Civ.App., 231 S.W. 142, 144.
TORTIOUS. Wrongful; of the nature of a tort.
Formerly certain modes of conveyance (e. g.,
feoffments, fines, etc.) had the effect of passing
not merely the estate of the person making the
conveyance, but the whole fee-simple, to the in-
jury of the person really entitled to the fee; and
they were hence called "tortious conveyances."
Litt. § 611; Co. Litt. 271b, n. 1; 330b, n. 1. But
this operation has been taken away. Sweet.
TORTURA LEGUM PESSIMA. The torture or
wresting of laws is the worst [kind of torture.]
4 Bacon's Works, 434.
TORTURE. In old criminal law. The question;
the infliction of violent bodily pain upon a person,
by means of the rack, wheel, or other engine,
under judicial sanction and superintendence, in
connection with the interrogation or examination
of the person, as a means of extorting a confes-
sion of guilt, or of compelling him to disclose his
accomplices.
TORY. Originally a nickname for the wild Irish
in Ulster. Afterwards given to, and adopted by,
one of the two great parliamentary parties which
have alternately governed Great Britain since the
Revolution in 1688. Wharton.
The name was also given, in America, during
the struggle of the colonies for independence, to
the party of those residents who favored the side
of the king and opposed the war.
TOT. In old English practice. A word written
by the foreign opposer or other officer opposite
to a debt due the king, to denote that it was a
good debt; which was hence said to be totted.
TOTA CURIA. L. Lat. In the old reports. The
whole court.
TOTAL. Whole, not divided, lacking no part, en-
tire, full, complete, the whole amount. In re Mer-
ritt's Estate, Sur., 180 N.Y.S. 877, 879; Jefferson
Standard Life Ins. Co. v. King, 165 S.C. 219, 163
S.E. 653, 656; Utter, absolute. Glaze v. Hart, 225
Mo.App. 1205, 36 S.W.2d 684.
TOTAL DEPENDENCY. Within Workmen's
Compensation Acts exist where the dependent
subsists entirely on the earnings of the workman.
Garbutt v. Stoll, 287 Mich. 396, 283 N.W. 624, 626;
Burrows v. Industrial Commission, 246 Wis. 152,
16 N.W.2d 434, 435.
TOTAL DISABILITY. See Disability.
TOTAL EVICTION. That which occurs when the
possessor is wholly deprived of his rights in the
premises.
TOTAL LOSS.
Fire insurance. The complete destruction of
the insured property by fire, so that nothing of
value remains from it; as distinguished from a
partial loss, where the property is damaged, but
not entirely destroyed. Springfield Fire & Marine
Ins. Co. of Springfield, Mass., v. Shapoff, 179 Ky.
804, 201 S.W. 1116, 1118; Fire Ass'n of Philadel-
phia v. Strayhorn, Tex.Com.App., 211 S.W. 447,
448, 449; Lowry v. Fidelity-Phcenix Fire Ins. Co.,
272 S.W. 79, 80, 219 Mo.App. 121; Roquette v.
Farmers Ins. Co., 191 N.W. 772, 774, 49 N.D. 478;
Teter v. Franklin Fire Ins. Co., 82 S.E. 40, 42, 74
W.Va. 344.
Test whether building burned is "total loss" is whether
substantial portion is left standing in condition reason-
ably suitable as basis on which to reconstruct building in
like condition as to strength, security, and utility as it
was before fire. Commerce Ins. Co. v. Sergi, Tex.Civ.App.,
60 S.W.2d 1046.
Marine insurance. The entire destruction or
loss, to the insured, of the subject-matter of the
•
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policy, by the risks insured against. St. Paul
Fire & Marine Ins. Co. v. Beacham, 128 Md. 414,
97 A. 708, 709, L.R.A.1916F, 1168.
Actual total loss. The total loss of the vessel
covered by a policy of insurance, by its real and
substantive destruction, by injuries which leave it
no longer existing in specie, by its being reduced
to a wreck irretrievably beyond repair, or by its
being placed beyond the control of the insured and
beyond his power of recovery. Distinguished from
a constructive total loss, which occurs where the
vessel, though injured by the perils insured
against, remains in specie and capable of repair
or recovery, but at such an expense, or under such
other conditions, that the insured may claim the
whole amount of the policy upon abandoning the
vessel to the underwriters. In such cases the in-
sured is entitled to indemnity as for a total loss.
An exception to the rule requiring abandonment
is found in cases where the loss occurs in foreign
ports or seas, where it is impracticable to repair.
In such cases the master may sell the vessel for'
the benefit of all concerned, and the insured may
claim as for a total loss by accounting to the in-
surer for the amount realized on the sale.
Constructive total loss. See Actual total loss,
supra.
Partial loss. Where an injury results to the ves-
sel from a peril insured against, but where the
loss is neither actually nor constructively total.
Globe Ins. Co. v. Sherlock, 25 Ohio St. 50, 64; Burt
v. Insurance Co., 9 Hun (N.Y.) 383; Carr v. In-
surance Co., 109 N.Y. 504, 17 N.E. 369; Waller-
stein v. Insurance Co., 3 Rob. (N.Y.) 528.
See, also, Fire Insurance, supra.
TOTIDEM VERB'S. Lat. In so many words.
TOTIES QUOTIES. Lat. As often as occasion
shall arise.
TOTIS VIRIBUS. Lat. With all one's might or
power; with all his might; very strenuously.
TOTTED. A good debt to the crown, i. e., a debt
paid to the sheriff, to be by him paid over to the
king. Cowell; Mozley & Whitley.
TOTTEN TRUST. See Trust.
TOTUM PRJEFERTUR UNICUIQUE PARTI. 3
Coke, 41. The whole is preferable to any single
part.
TOUCH. In insurance law. To stop at a port.
If there be liberty granted by the policy to touch,
or to touch and stay, at an intermediate port on
the passage, the better opinion now is that the
insured may trade there, when consistent with the
object and the furtherance of the adventure, by
breaking bulk, or by discharging and taking in
cargo, provided it produces no unnecessary delay,
nor enhances nor varies the risk. 3 Kent, Comm.
314.
TOUCH AND STAY. Words frequently intro-
duced in policies of insurance, giving the party in-
sured the right to stop and stay at certain desig-
nated points in the course of the voyage. A vessel
which has the power to touch and stay at a place
in the course of the voyage must confine herself
strictly to the terms of the liberty so given; for
any attempt to trade at such a port during such
a stay, as, by shipping or landing goods, will
amount to a species of deviation which will dis-
charge the underwriters, unless the ship have also
liberty to trade as well as to touch and stay at
such a place. 1 Marsh. Ins. 275.
TOUCHING A DEAD BODY. It was an ancient
superstition that the body of a murdered man
would bleed freshly when touched by his mur-
derer. Hence, in old criminal law, this was re-
sorted to as a means of ascertaining the guilt or
innocence of a person suspected of the murder.
TOUJOURS ET UNCORE PRIST. L. Fr. Al-
ways and still ready. This is the name of a plea
of tender.
TOUR D'ECHELLE. In French law. An ease-
ment consisting of the right to rest ladders upon
the adjoining estate, when necessary in order to
repair a party-wall or buildings supported by it.
Also the vacant space surrounding a building
left unoccupied in order to facilitate its reparation
when necessary. Merl. Repert.
TOURIST. One who makes a tour; one who
travels from place to place for pleasure or culture.
Jones v. State, 64 Ga.App. 376, 13 S.E.2d 462, 465.
TOURN. In old English law. A court of record,
having criminal jurisdiction, in each county, held
before the sheriff, twice a year, in one place after
another, following a certain circuit or rotation.
TOUT. Fr. All; whole; entirely. Tout temps
prist, always ready.
TOUT CE QUE LA LOI NE DEFEND PAS EST
PERMIS. Everything is permitted which is not
forbidden by law.
TOUT TEMPS PRIST. L. Fr. Always ready.
The . emphatic words of the old plea of tender;
the defendant alleging that he has always been
ready, and still is ready, to discharge the debt. 3
Bl. Comm. 303; 2 Salk. 622.
TOUT UN SOUND. L. Fr. All one sound;
sounding the same; idem sonans.
TOUTE EXCEPTION NON SURVEILLEE TEND
A PRENDRE LA PLACE DU PRINCIPE. Every
exception not watched tends to assume the place
of the principle.
TOWAGE. The act or service of towing ships
and vessels, usually by means of a small steamer
called a "tug." That which is given for towing
ships in rivers.
The drawing a ship or barge along the water
by another ship or boat, fastened to her, or by
men or horses, etc., on land. It is also money
which is given by bargemen to the owner of
ground next a river, where they tow a barge or
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other vessel. Jacob. And see Ryan v. Hook, 34
Hun (N.Y.) 191; The Kingaloch, 26 Eng. Law &
Eq. 597; The Egypt, D.C.Va., 17 F. 359, 370.
TOWAGE SERVICE. In admiralty law. A serv-
ice rendered to a vessel, by towing, for the mere
purpose of expediting her voyage, without refer-
ence to any circumstances of danger. It is con-
fined to vessels that have received no injury or
damage. The Reward, 1 W. Rob. 177; The Athen-
ian, D.C.Mich., 3 F. 248, 249; The Kennebec, C.C.
A.Tex., 231 F. 423, 425; The Mercer, C.C.A.N.Y.,
297 F. 981, 984.
TOWARD. The word has been held to mean not
simply "to" but to include "about." Hudson v.
State, 6 Tex.App. 565, 32 Am.Rep. 593. Also, in
a course or line leading to, in the direction of.
People v. Kreidler, 180 Mich. 654, 147 N.W. 559,
560; State v. Trent, 122 Or. 444, 259 P. 893, 898.
TOWN,
American Law
A civil and political division of a state, vary-
ing in extent and importance, but usually one of
the divisions of a county. In the New England
states, the town is the political unit, and is a
municipal corporation. In some other states,
where the county is the unit, the town is merely
one of its subdivisions, but possesses some powers
of local. self-government. In still other states,
such subdivisions of a county are called "town-
ships," and "town" is the name of a village, bor-
ough, or smaller city. See Herrman v. Guttenberg,
62 N.J.Law, 605, 43 A. 703; Van Riper v. Parsons,
40 N.J.Law, 1; State v. Denny, 118 Ind. 449, 21
N.E. 274, 4 L.R.A. 65; Guadalupe County v. Poth
(Tex.Civ.App.), 163 S.W. 1050, 1051; People v.
Adams State Bank, 272 Ill. 277, 111 N.E. 989, 991;
In re Opinion of the Justices, 229 Mass. 601, 119
N.E. 778, 781.
English Law
Originally, a vill or tithing; but now a generic
term, which comprehends under it the several
species of cities, boroughs, and common towns.
1 Bl. Comm. 114.
The word "town" is quite commonly used as a generic
term and as including both cities and villages. Village of
Ashley v. Ashley Lumber Co., 40 N.D. 515, 169 N.W. 87,
90; Plainfield-Union Water Co. v. Inhabitants of City of
Plainfield, 84 N.J.L. 634, 87 A. 448, 450.
TOWN AGENT. Under the prohibitory liquor
laws in force in some of the New England states
a town agent is a person appointed in each town
to purchase intoxicating liquors for the town and
having the exclusive right to sell the same for the
permitted purposes, medical, mechanical, scien-
tific, etc. He either receives a fixed salary or is
permitted to make a small profit on his sales.
The stock of liquors belongs to the town, and is
bought with its money. See Black, Intox. Liq.
§§ 204, 205.
TOWN CLAUSE. In English practice. A cause
tried at the sittings for London and Middlesex, 3
Steph. Comm. 517.
TOWN COLLECTOR. One of the officers of a
town charged with collecting the taxes assessed
for town purposes.
TOWN COMMISSIONER. In some of the states
where the town is the political unit the town com-
missioners constitute a board of administrative
officers charged with the general management of
the town's business.
TOWN ORDER OR WARRANT. An official di-
rection in writing by the auditing officers of a
town, directing the treasurer to pay a sum of
money.
TOWN POUND. A place of confinement main-
tained by a town for estrays.
TOWN PURPOSE. When it is said that taxation
by a town, or the expenditure of the town's mon-
ey, must be for town purposes, it is meant that
the purposes must be public with respect to the
town; i. e., concern the welfare and advantage of
the town as a whole.
TOWN-REEVE. The reeve or chief officer of a
town.
TOWN TAX. Such tax as a town may levy for its
peculiar expenses; as distinguished from a county
or state tax.
TOWN TREASURER. The treasurer of a town
which is an organized municipal corporation.
TOWN-CLERK. In those states where the town
is the unit for local self-government, the town-
clerk is a principal officer who keeps the records,
issues calls for town-meetings, and performs gen-
erally the duties of a secretary to the political
organization. See Seamons v. Fitts, 21 R.I. 236,
42 A. 863.
TOWN-CRIER. An officer in a town whose busi-
ness it is to make proclamations.
TOWN-HALL. The building maintained by a
town for town-meetings and the offices of the
municipal authorities.
TOWN-MEETING. Under the municipal organ-
ization of the New England states, the town-meet-
ing is a legal assembly of the qualified voters of a
town, held at stated intervals or on call, for the
purpose of electing town officers, and of discuss-
ing and deciding on questions relating to the pub-
lic business, property, and expenses of the town.
See In re Foley, 8 Misc. 57, 28 N.Y.S. 608; Rail-
road Co. v. Mallory, 101 Ill. 588; Portland Water
Co. v. Town of Portland, 97 Conn. 628, 118 A. 84,
86; In re Opinion of the Justices, 229 Mass. 601,
119 N.E. 778, 781.
TOWNSHIP. 1. In surveys of the public land
of the United States, a "township" is a division
of territory six miles square, containing thirty
six sections.
2. In some of the states, this is the name given
to the civil and political subdivisions of a county.
Town, and Liberty Tp. v. Rock Island Tp., 44 Okl.
398, 144 P. 1025, 1026; People v. Stewart, 281 Ill.
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365, 118 N.E. 55, 56; City of Hutchinson v. Reno
County, 124 Kan. '149, 257 P. 750, 751. Rich v. In-
dustrial Commission, 80 Utah 511, 15 P.2d 641,
645.
TOWNSHIP TRUSTEE. One of a board of of-
ficers to whom, in some states, affairs of a town-
ship are intrusted.
TOWNSITE. Portion of public domain segregated
by proper authority and procedure as site for a
town. Metropolitan Life Ins. Co. v. Keating, 191
Minn. 520, 254 N.W. 813.
TOXIC. (Lat. toxicum; Gr. toxikon.) In med-
ical jurisprudence. Poisonous; having the char-
acter or producing the effects of a poison; refer-
able to a poison; produced by or resulting from a
poison.
Toxic convulsions. Such as are caused by the
action of a poison on the nervous system.
Toxic dementia. Weakness of mind or feeble
cerebral activity, approaching imbecility, result-
ing from continued use or administration of slow
poisons or of the more active poisons in repeated
small doses, as in cases of lead poisoning and in
some cases of addiction to such drugs as opium
or alcohol.
Toxanemia. A condition of anemia (impover-
ishment or deficiency of blood) resulting from the
action of certain toxic substances or agents.
Toxemia or toxicemia. Blood-poisoning; the
condition of the system caused by the presence of
toxic agents in the circulation; including both
septicemia and pycemia.
Toxicosis. A diseased state of the system due
to the presence and action of any poison.
TOXICAL. Poisonous; containing poison.
TOXICANT. A poison; a toxic agent; any sub-
stance capable of producing toxication or poison-
ing.
TOXICATE. To poison. Not used to describe
the act of one who administers a poison, but the
action of the drug or poison itself.
Auto-Intoxication
Self-empoisonment from the absorption of the
toxic products of internal metabolism, e. g., pto-
maine poisoning.
Intoxication
The state of being poisoned; the condition pro-
duced by the administration or introduction into
the human system of a poison. This term is pop-
ularly used as equivalent to "drunkenness," which,
however, is more accurately described as "alco-
holic intoxication."
TOXICOLOGY. The science of poisons; that de-
partment of medical science which treats of poi-
sons, their effect, their recognition, their anti-
dotes, and generally of the diagnosis and thera-
peutics of poisoning.
TOXIN. In its widest sense, this term may denote
any poison or toxicant; but as used in pathology
and medical jurisprudence it signifies, in general,
any diffusible alkaloidal substance (as, the pto-
maines, abrin, brucin, or serpent venoms), and in
particular the poisonous products of pathogenic
(disease-producing) bacteria.
Anti-Toxin
A product of pathogenic bacteria which, in suf-
ficient quantities, will neutralize the toxin or poi-
sonous product of the same bacteria. In thera-
peutics, a preventive remedy (administered by in-
oculation) against the effect of certain kinds of
toxins, venoms, and disease-germs, obtained from
the blood of an animal which has previously been
treated with repeated minute injections of the
particular poison or germ to be neutralized.
Toxicomania
An excessive addiction to the use of toxic or
poisonous drugs or other substances; a form. of
mania or affective insanity characterized by an
irresistible impulse to indulgence in opium, co-
caine, chloral, alcohol, etc.
Toxiphobia
Morbid dread of being poisoned; a form of in-
sanity manifesting itself by an excessive and un-
founded apprehension of death by poison.
TOY. A plaything, often but not necessarily al-
ways imaginative of some living or manufactured
thing. Steel Stamping Co. v. N. N. Hill Brass Co.,
D.C.Conn., 17 F.Supp. 18, 20.
TRABES. Lat. In civil law. A beam or rafter
of a house. Calvin.
In old English law. A measure of grain, con-
taining twenty-four sheaves; a thrave. Spelman.
TRACEA. In old English law. The track or
trace of a felon, by which he was pursued with
the hue and cry; a foot-step, hoof-print, or wheel-
track. Bract. fols. 116, 121b.
TRACING. A tracing is a mechanical copy or
fac simile of an original, produced by following
its lines, with a pen or pencil, through a trans-
parent medium, called tracing paper. Chapman v.
Ferry, C.C.Or., 18 F. 539, 540.
TRACKS. A term that may mean rails, or rails
and cross-ties, or roadbed according to context.
City of Bayonne v. Public Service Ry. Corporation,
98 N.J.L. 255, 119 A. 9. City of Dayton v. South
Covington & C. St. Ry. Co., 177 Ky. 202, 197 S.W.
670, 672, L.R.A. 1918B, 476, Ann.Cas.1918E, 229.
Dead Track
A track having a switch to other tracks at one
end only with a bumper at the other end. Hoyer
v. Central R. Co. of New Jersey, C.C.A.N.Y., 255
F. 493, 494.
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Track Delivery Shipments
Carload shipments, as distinguished from or-
dinary freight unloaded from the cars, known as
a "drop shipment" 'delivery. Boshell v. Receivers
of St. Louis & S. F. R. Co., 200 Ala. 366, 76 So.
282, 284.
TRACT. A lot, piece or parcel of land, of greater
or less size, the term not importing, in itself, any
precise dimension. See Edwards v. Derrickson, 28
N.J.L. 45; Holt v. Wichita County Water Im-
provement Dist. No. 2, Tex.Civ.App., 48 S.W.2d
527, 529.
As applied to a mineral location the word "tract" implies
a surface location. Whildin v. Maryland Gold Quartz
Mining Co., 33 Cal.App. 270, 164 P. 908, 910.
TRACTOR. That which draws or is used for
drawing as a traction engine, or an automotive
vehicle used for drawing or hauling something as
a vehicle, plow, harrow, or reaper. State ex rel.
Rice v. Louisiana Oil Corporation, 174 Misc. 585,
165 So. 423, 425.
TRACTENT FABRILIA FABRI. Let smiths per-
form the work of smiths. 3 Co. Epist.
TRADAS IN BALLIUM. You deliver to bail. In
old English practice. The name of a writ which
might be issued in behalf of a party who, upon the
writ de olio et atia, had been found to have been
maliciously accused of a crime, commanding the
sheriff that, if the prisoner found twelve good and
lawful men of the county who would be mainper-
nors for him, he should deliver him in bail to those
twelve, until the next assize. Bract. fol. 123; 1
Reeve, Eng. Law, 252.
TRADE. The act or business of exchanging com-
modities by barter; or the business of buying
and selling for money; traffic; barter. May v.
Sloan, 101 U.S. 237, 25 L.Ed. 797; U. S. v. Cassidy,
D.C.Cal., 67 F. 698; State v. Deckebach, 113 Ohio
St. 347, 149 N.E. 194, 196.
The business which a person has learned and
which he carries on for procuring subsistence, or
for profit; occupation or employment, particularly
mechanical employment; distinguished from the
liberal arts and learned professions, and from ag-
riculture. Woodfield v. Colzey, 47 Ga. 124; Peo-
ple v. Warden of City Prison, 144 N.Y. 529, 39 N.E.
686, 27 L.R.A. 718; Detroit Taxicab & Transfer
Co. v. Callahan, C.C.A.Mich., 1 F.2d 911, 912. A
line of work or a form of occupation pursued as
a business or calling, as for a livelihood or for
profit; anything practiced as a means of getting
a living, money, booty, etc.; mercantile or com-
mercial business in general, or the buying and
selling, or exchanging, of commodities, either by
wholesale or retail within a country or between
countries. Helvering v. Wilmington Trust Co.,
C.C.A.3, 124 F.2d 156, 158.
All wholesale trade, all buying in order to sell again by
wholesale, may be reduced to three sorts : The home trade,
the foreign trade of consumption, and the carrying trade.
2 Smith, Wealth Nat. b. 2, c. 5.
TRADE ACCEPTANCE. A draft or bill of ex-
change drawn by the seller on the purchaser of
goods sold and accepted by such purchaser. Luik-
art v. Massachusetts Bonding & Insurance Co.,
129 Neb. 771, 263 N.W. 124, 129.
TRADE AND COMMERCE. The words "trade"
and "commerce," when used in juxtaposition im-
part to each other enlarged signification, so as to
include practically every business occupation car-
ried on for subsistence or profit, and into which
the elements of bargain and sale, barter, exchange,
or traffic, enter. State v. Tagami, 234 P. 102, 105,
195 Cal. 522.
TRADE AGREEMENT. See Collective Labor
Agreement.
TRADE COMMISSION, FEDERAL. An act of
congress was passed September 26, 1914, creating
a Federal Trade Commission, composed of five
commissioners appointed by the President with
the advice and consent of the Senate. The act
provides: "That unfair methods of competition in
commerce are hereby declared unlawful," and the
commission is "directed to prevent persons, part-
nerships or corporations, except banks, and com-
mon carriers subject to the acts to regulate com-
merce, from using unfair methods of competi-
tion in commerce."
TRADE DISPUTE. Within Unemployment In-
surance Act barring benefit payments to persons
who leave work because of trade dispute, the term
includes controversy over working conditions,
American-Hawaiian S. S. Co. v. California Em-
ployment Commission, 24 Cal.2d 716, 151 P.2d 213,
215; unwillingness to cross picket lines, Mattson
Terminals v. California Employment Commission,
24 Ca1.2d 695, 151 P.2d 202, 206.
TRADE DOLLAR. A silver coin of the United
States, of the weight of four hundred and twenty
grains, troy. Rev.St.U.S. § 3513.
TRADE FIXTURES. See Fixtures.
TRADE-MARK. Generally speaking, a distinc-
tive mark of authenticity, through which the prod-
ucts of particular manufacturers or the vendible
commodities of particular merchants may be dis-
tinguished from those of others. It may consist
in any symbol or in any form of words, but, as its
office is to point out distinctively the origin or
ownership of the articles to which it is affixed, it
follows that no sign or form of words can be ap-
propriated as a valid trade-mark which, from the
nature of the fact conveyed by its primary mean-
ing, others may employ with equal truth and with
equal right for the same purpose. Jantzen Knit-
ting Mills v. West Coast Knitting Mills, Cust. &
Pat.App., 46 F.2d 182, 184.
A distinctive mark, motto, device, or emblem,
which a manufacturer stamps, prints, or otherwise
affixes to the goods he produces, so that they may
be identified in the market, and their origin be
vouched for. Trade-Mark Cases, 100 U.S. 87, 25
L.Ed. 550; Buffalo Rubber Mfg. Co. v. Batavia
Rubber Co., 90 Misc.Rep. 418, 153 N.Y.S. 779, 783;
Iowa Auto Market v. Auto Market & Exchange,
197 Iowa, 420, 197 N.W. 321, 322; Tillman & Bend-
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TRADE-MARK
el v. California Packing Corporation, C.C.A.Cal.,
63 F.2d 498, 503.
"Trade-mark" is created chiefly by use, which must be
general, continuous, and exclusive and applied to goods and
used in trade under such circumstances of publicity and
length of use as to show intention to adopt mark for spe-
cific goods.  Continental Corporation v. National Union
Radio Corporation, C.C.A.I11., 67 F.2d 938, 942.
A "trade-mark" is merely a protection for good will and
is not the subject of property rights except in connection
with an existing business. 15 U.S.C.A. § 90. Lazar v. Ce-
celia Co., D.C.N.Y., 30 F.Supp. 769, 771.
Generally speaking, a "trade-mark" is applicable to a
vendible commodity, to which it is affixed, and a "trade-
name" to a business and its good will. American Steel
Foundries v. Robertson, 46 S.Ct. 160, 162, 269 U.S. 372, 70
L.Ed. 317.
TRADE-MARKS REGISTRATION ACT, 1875.
This is the statute 38 & 39 Vict. c. 91, amended by
the acts of 1876 and 1877. It provides for the es-
tablishment of a register of trade-marks under
the superintendence of the commissioners of pat-
ents, and for the registration of trade-marks as
belonging to particular classes of goods, and for
their assignment in connection with the good-will
of the business in which they are used. Sweet.
TRADE-NAME. A name used in trade to desig-
nate a particular business of certain individuals
considered somewhat as an entity, or the place at
which a business is located, or of a class of goods,
but which is not a technical trade-mark either
because not applied or affixed to goods sent into
the market or because not capable of exclusive
appropriation by anyone as a trade-mark. "Trade-
names" may, or may not, be exclusive. Non-ex-
clusive "trade-names" are names that are publici
juris in their primary sense, but which in a second-
ary sense have come to be understood as indicat-
ing the goods or business of a particular trader.
"Trade-names" are acquired by adoption and user
and belong to one who first used them and gave
them a value. St. Louis Independent Packing Co.
v. Houston, C.C.A.Mo., 215 F. 553, 560; Hartzler
v. Goshen Churn & Ladder Co., 55 Ind.App. 455,
104 N.E. 34, 37. See, also, Trade-mark. For "Fan-
ciful Trade-Name," see that title.
A "trade-name" is descriptive of the manufacturer or
dealer for protection in trade, to avoid confusion in busi-
ness, and to secure the advantages of a good reputatfon
and is applied more to the good will of a business than as
an identification of a product. Mary Muffet, Inc., v. Smel-
ansky, Mo.App., 158 S.W.2d 168, 170.
TRADE-SECRET. A plan or process, tool, mech-
anism, or compound known only to its owner and
those of his employees to whom it is necessary to
confide it. Victor Chemical Works v. Iliff, 299 Ill.
532; 132 N.E. 806, 811; Progress Laundry Co. v.
Hamilton, 208 Ky. 348, 270 S.W. 834, 835. A secret
formula or process not patented, but known only
to certain individuals using it in compounding
some article of trade having a commercial value.
Glucol Mfg. Co. v. Shulist, 239 Mich. 70, 214 N.W.
152, 153; U. S. ex rel. Norwegian Nitrogen Prod-
ucts Co. v. U. S. Tariff Commission, 6 F.2d 491,
495, 55 App.D.C. 366.
TRADE-UNION. A combination of workmen of
the same trade or of several allied trades, for the
purpose of securing by united action the most
favorable conditions regarding wages, hours of
labor, etc., for its members. People v. Distribu-
tors Division, Smoked Fish Workers Union, Local
No. 20377, Sup., 7 N.Y.S.2d 185, 187; Keith The-
atre v. Vachon, 134 Me. 392, 187 A. 692, 694.
TRADE-UNION ACT. The statute 34 & 35 Vict.
c. 31, passed in 1871, for the purpose of giving
legal recognition to trade unions, is known as the
"trade-union act," or "trade-union funds protec-
tion act." It provides that the members of a trade
union shall not be prosecuted for conspiracy mere-
ly by reason that the rules of such union are in
restraint of trade; and that the agreements of
trade unions shall not on that account be void or
voidable. Provisions are also made with reference
to the registration and registered offices of trade
unions, and other purposes connected therewith.
Mozley & Whitley.
TRADE USAGE. The usage or customs com-
monly observed by persons conversant in, or con-
nected with, a particular trade.
TRADER. One who makes it his business to buy
merchandise, goods, or chattels to sell the same
at a profit. People v. Terkanian, 27 Cal.App.2d
460, 81 P.2d 251, 253. One who sells goods sub-
stantially in the form in which they are bought;
one who has not converted them into another form
of property by his skill and labor. Albuquerque
Lumber Co. v. Bureau of Revenue of New Mexico,
42 N.M. 58, 75 P.2d 334, 336.
TRADESMAN. In England, a shopkeeper; in the
United States, a mechanic or artificer of any kind,
whose livelihood depends on the labor of his
hands; Richie v. McCauley, 4 Pa. 472.
TRADICION. Span. In Spanish law. Delivery.
White. New Recop. b. 2, tit. 2, c. 9.
TRADING. Engaging in trade, (q. v.;) pursuing
the business or occupation of trade or of a trader.
TRADING CORPORATION. See Corporation.
TRADING PARTNERSHIP. A firm the nature of
whose business, according to the usual modes of
conducting it, imports the necessity of buying and
selling. Dowling v. National Exch. Bank, 145 U.
S. 512, 12 S.Ct. 928, 36 L.Ed. 795; Schumacher v.
Sumner Telephone Co., 161 Iowa, 326, 142 N.W.
1034, 1036, Ann.Cas. 1916A, 201; Maasdam v. Blok-
land, 123 Or. 128, 261 P. 66, 68.
TRADING STAMPS. The name for a method of
conducting some kinds of retail business which
consists of an agreement between a number of
merchants and a corporation that the latter shall
print the names of the former in its subscribers'
dictionary and circulate a number of copies of
the book, and that the merchants shall purchase
of the corporation a number of so-called trading
stamps, to be given to purchasers with their pur-
chases, and by them preserved and pasted in the
books aforesaid until a certain number have been
secured, when they shall be presented to the cor-
poration in exchange for the choice of certain ar-
ticles kept in stock by the corporation. Lans-
burgh v. D. of Col., 11 App.D.C. 512.
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TRAILER
TRADING VOYAGE. One which contemplates
the touching and stopping of the vessel at various
ports for the purpose of traffic or sale and pur-
chase or exchange of commodities on account of
the owners and shippers, rather than the trans-
portation of cargo between terminal points, which
is called a "freighting voyage."
TRADITIO. Lat. In the civil law. Delivery;
transfer of possession; a derivative mode of ac-
quiring, by which the owner of a corporeal thing,
having the right and the will of aliening it, trans-
fers it for a lawful consideration to the receiver.
Heinecc. Elem. lib. 2, tit. 1, § 380.
Quasi Traditio
A supposed or implied delivery of property from
one to another. Thus, if the purchaser of an ar-
ticle was already in possession of it before the
sale, his continuing in possession is considered as
equivalent to a fresh delivery of it, delivery be-
ing one of the necessary elements of a sale; in
other words, a quasi traditio is predicated.
Traditio Brevi Manu
A species of constructive or implied delivery.
When he who already holds possession of a thing
in another's name agrees with that other that
thenceforth he shall possess it in his own name, in
this case a delivery and redelivery are not neces-
sary. Mackeld. Rom. Law, § 284.
Traditio Clavium
Delivery of keys; a symbolical kind of delivery,
by which the ownership of merchandise in a ware-
house might be transferred to a buyer. Inst. 2,
1, 44.
Traditio Longa Manu
A species of delivery which takes place where
the transferor places the article in the hands of
the transferee, or, on his order, delivers it at his
house. Mackeld. Rom. Law, § 284.
Traditio Rei
Delivery of the thing. See 5 Maule & S. 82.
TRADITIO LOQUI FACIT CHARTAM. Delivery
makes a deed speak. Delivery gives effect to the
words of a deed. 5 Coke, la.
TRADITIO NIHIL AMPLIUS TRANSFERRE DE-
BET VEL POTEST, AD EUM QUI ACCIPIT,
QUAM EST APUD EUM QUI TRADIT. Deliv-
ery ought to, and can, transfer nothing more to
him who receives than is with him who delivers.
Dig. 41, 1, 20, pr.
TRADITION. Delivery. A close translation or
formation from the Latin "traditio." 2 Bl. Comm.
307.
The tradition or delivery is the transferring of the thing
sold into the power and possession of the buyer. Civ. Code
La. art. 2477.
In the rule respecting the admission of tradition or gen-
eral reputation to prove boundaries, questions of pedigree,
etc., this word means knowledge or belief derived from
the statements or declarations of contemporary witnesses
and handed down orally through a considerable period of
time. See Westfelt v. Adams, 131 N.C. 379, 42 S.E. 823; In
re Hurlburt's Estate, 68 Vt. 366, 35 A. 77, 35 L.R.A. 794.
TRADITIONARY EVIDENCE. Evidence derived
from tradition or reputation or the statements
formerly made by persons since deceased, in re-
gard to questions of pedigree, ancient boundaries,
and the like, where no living witnesses can be
produced having knowledge of the facts. Lay v.
Neville, 25 Cal. 554.
TRADITOR. In old English law. A traitor; one
guilty of high treason. Fleta, lib. 1, c. 21, § 8.
TRADITUR IN BALLIUM. In old practice. Is
delivered to bail. Emphatic words of the old Lat-
in bail-piece. 1 Salk. 105.
TRAFFIC. Commerce; trade; sale or exchange
of merchandise, bills, money, and the like. The
passing of goods or commodities from one person
to another for an equivalent in goods or money.
Senior v. Ratterman, 44 Ohio St. 673, 11 N.E. 321;
Fine v. Moran, 74 Fla. 417, 77 So. 533, 538; Bruno
v. U. S., C.C.A.Mass., 289 F. 649, 655; Kroger
Grocery and Baking Co. v. Schwer, 36 Ohio App.
512, 173 N.E. 633. The subjects of transportation
on a route, as persons or goods; the passing to
and fro of persons, animals, vehicles, or vessels,
along a route of transportation, as along a street,
canal, etc. United States v. Golden Gate Bridge
and Highway Dist. of California, D.C.Cal., 37 F.
Supp. 505, 512.
TRAFFIC BALANCES. Balances of moneys col-
lected in payment for the transportation of pas-
sengers and freight. Chicago & A. R. Co. v. Unit-
ed States & Mexican Trust Co., C.C.A.Kan., 225 F.
940, 946.
TRAFFIC REGULATIONS. Prescribed rules of
conduct to promote the orderly and safe flow of
traffic. Dembicer v. Pawtucket Cabinet & Build-
ers Finish Co., 58 R.I. 451, 193 A. 622, 625.
TRAHENS. Lat. In French law. The drawer
of a bill. Story, Bills, § 12 note.
TRAIL—BASTON. Justices of trail-baston were
justices appointed by King Edward I., during his
absence in the Scotch and French wars, about the
year 1305. They were so styled, says Hollingshed,
for trailing or drawing the staff of justice. Their
office was to make inquisition, throughout the
kingdom, of all officers and others, touching ex-
tortion, bribery, and such like grievances, of in-
truders into other men's lands, barrators, robbers,
breakers of the peace, and divers other offenders.
Cowell; Tomlins.
TRAILER. A separate vehicle, not driven or
propelled by its own power, but drawn by some
independent power; a semi-trailer is a separate
vehicle which is not driven or propelled by its
own power, but, which, to be useful, must be at-
tached to and become a part of another vehicle,
and then loses its identity as a separate vehicle.
Leamon v. State, 17 Ohio App. 323, 326; Maryland
Casualty Co. v. Cross, C.C.A.Tex., 112 F.2d 58, 60.
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TRAIN
TRAIN. Continuous or connected line of cars or
carriages being transported on railroad from one
terminal to another, not merely cars being moved
in switchyard for purpose of making up trains or
placing them in another part of yard. Squibb v.
Elgin, J. & E. Ry. Co., 99 Ind.App. 136, 190 N.E.
879, 881.
TRAIN WRECK. These words, in an accident in-
surance policy, mean either total or partial de-
struction of the train. The smashing in of a por-
tion of a passenger car is a "train wreck," though
the car is not derailed, and the train soon con-
tinues under its own power. Mochel v. Iowa
State Traveling Men's Ass'n, 203 Iowa, 623, 213
N.W. 259, 261, 51 A.L.R. 1327.
TRAINBANDS. The militia; the part of a com-
munity trained to martial exercises.
TRAISTIS. In old Scotch law. A roll containing
the particular dittay taken up upon malefactors,
which, with the porteous, is delivered by the jus-
tice clerk to the coroner, to the effect that the
persons whose names are contained in the por-
teous may be attached, conform to the dittay con-
tained in the traistis. So called, because commit-
ted to the traist, [trust,] faith, and credit of the
clerks and coroner. Skene; Burrill.
TRAITOR. One who, being trusted, betrays; one
guilty of treason, (q. v.). Vulcan Detinning Co.
v. St. Clair, 315 Ill. 140, 145 N.E. 657, 659.
TRAITOROUSLY. In criminal pleading. An es-
sential word in indictments for treason. The of-
fense must be laid to have been committed trait-
orously. Whart.Crim.Law, 100.
TRAJECTITIA PECUNIA. A loan to a shipper
to be repaid only in case of a successful voyage.
The lender could charge an extraordinary rate of
interest, nauticum fcenus. Holland, Jurispr. 250.
TRAJECTITIUS. Lat. In the civil law. Sent
across the sea.
TRAMMER. A mine laborer shoveling the ore or
dirt as it is mined or thrown down into tram cars.
Mesich v. Tamarack Mining Co., 184 Mich. 363, 151
N.W. 564, 566.
TRAMP. One who roams about from place to
place, begging or living without labor or visible
means of support; a vagrant. See State v. Ho-
gan, 63 Ohio St. 202, 58 N.E. 572, 52 L.R.A. 863,
81 Am.St.Rep. 626; Miller v. State, 73 Ind. 92;
Railway Co. v. Boyle, 115 Ga. 836, 42 S.E. 242, 59
L.R.A. 104.
TRANSACT. In Scotch law. To compound.
Amb. 185.
In common parlance, equivalent to "carry on,"
when used with reference to business. Territory
v. Harris, 8 Mont. 140, 19 P. 286; In re Wellings'
Estate, 192 Cal. 506, 221 P. 628, 631.
TRANSACTING BUSINESS. Doing or perform-
ing series of acts occupying time, attention, and
labor of men for purpose of livelihood, profit or
pleasure. Seidenbach's v. A. E. Little Co., 146
Okl. 247, 294 P. 126, 128.
TRANSACTIO. Lat. In the civil law. The set-
tlement of a suit or matter in controversy, by the
litigating parties, between themselves, without re-
ferring it to arbitration. Hallifax, Civil Law, b.
3, c. 8, no. 14. An agreement by which a suit,
either pending or about to be commenced, was
forborne or discontinued on certain terms. Cal-
vin.
TRANSACTION. Act of transacting or conduct-
ing any business; negotiation; management; pro-
ceding; that which is done; an affair. Sheehan
v. Pierce, 23 N.Y.S. 1119, 1121, 70 Hun 62, 53 St.
R. 438. Something which has taken place, where-
by a cause of action has arisen. It must there-
fore consist of an act or agreement, or several
acts or agreements having some connection with
each other, in which more than one person is con-
cerned, and by which the legal relations of such
persons between themselves are altered. Baker
v. S. A. Healy Co., 302 Ill.App. 634, 24 N.E.2d 228,
234.
A broader term than "contract". Hoffman Machinery
Corporation v. Ebenstein, 150 Kan. 790, 96 P.2d 661, 663.
A group of facts so connected together as to be referred
to by a single legal name; as a crime, a contract, a wrong.
Steph.Dig.Evid. art. 3.
Code Practice
"Transaction," as used in statutes permitting
cause of action arising out of transaction, set forth
in complaint to be foundation of counterclaim,
properly embraces that combination of acts and
events, whether in nature of contract or tort, out
of which a legal right springs, or upon which a
legal obligation is predicated. Haut v. Gunderson,
54 N.D. 826, 211 N.W. 982, 983; Southeastern Life
Ins. Co. v. Palmer, 120 S.C. 490, 113 S.E. 310, 311;
Scott v. Waggoner, 48 Mont. 536, 139 P. 454, 456,
L.R.A.1916C, 491.
Evidence
A "transaction" between a witness and a de-
cedent, within statutory provisions excluding evi-
dence of such transactions, embraces every va-
riety of affairs which can form the subject of ne-
gotiations, interviews, or actions between two
persons, and includes every method by which one
person can derive im p ressions or information from
the conduct, condition, or language of another.
Kentucky Utilities Co. v. McCarty's Adm'r, 169
Ky. 38, 183 S.W. 237, 239; Bright v. Virginia &
Gold Hill Water Co., C.C.A.Nev., 270 F. 410, 413;
Madero v. Calzado, Tex.Civ.App., 281 S.W. 328, 331.
An action participated in by witness and decedent
and to which decedent could testify of his own
personal knowledge, if alive. Nelson v. Janssen,
144 Neb. 811, 14 N.W.2d 662, 665. A personal or
mutual transaction wherein deceased and witness
actively participate. Seligman v. Orth, 205 Wis.
199, 236 N.W. 115, 117.
Civil Law
An agreement between two or more persons,
who, for preventing or putting an end to a law-
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TRANSGRESSIO
suit, adjust their differences by mutual consent,
in the manner which they agree on. This con-
tract must be reduced into writing. Civ.Code La.
art. 3071.
TRANSAZIONE. An Italian term which techni-
cally refers to an instrument whereby parties agree
to put an end to a dispute by means of mutual con-
cessions and is the equivalent of "transactio" un-
der the Roman Law, the principles of which have
been carried into the common law and are found
in agreements of accord and satisfaction and com-
promise and settlement. Castelli v. Tolibia, Sup.,
83 N.Y.S.2d 554, 562.
TRANSCRIPT. That which has been transcribed;
a copy of any kind; a writing made from or after
an original; a copy; a copy, particularly of a rec-
ord; a copy of an original writing or deed and
suggests the idea of an original writing. Stephen-
son v. State, 179 N.E. 633, 637, 205 Ind. 141;
O'Quinn v. Tate, Tex.Civ.App., 187 S.W.2d 241, 243.
TRANSCRIPT OF RECORD. The printed record
as made up in each case for the supreme court
of the United States is so called; also in the Cir-
cuit Court of Appeals. If a necessary part has
been omitted and is subsequently presented to the
appellate court, duly certified, it may be made part
of the record by direct order. Jurisdiction at-
taches upon the filing in the court above of the
writ of error and is not defeated by irregularity
in the transcript or its certification. Burnham
v. North Chicago St. R. Co., 30 C.C.A. 594, 87 F.
168.
TRANSCRIPTIO PEDIS FINIS LEVATI MIT-
TENDO IN CANCELLARIUM. A writ which
certified the foot of a fine levied before justices
in eyre, etc., into the chancery. Reg.Orig. 669.
TRANSCRIPTIO RECOGNITION'S FACTJE
CORAM JUSTICIARIIS ITINERANTIBUS, Etc.
An old writ to certify a cognizance taken by jus-
tices in eyre. Reg.Orig. 152.
TRANSFER, v. To convey or remove from one
place, person, etc., to another; pass or hand over
from one to another; specif., to make over the
possession or control of (as, to transfer a title
to land) ; sell or give. Chappell v. State, 216 Ind.
666, 25 N.E.2d 999, 1001.
TRANSFER, n. An act of the parties, or of the
law, by which the title to property is conveyed
from one person to another. Innerarity v. Mims,
1 Ala. 669; Sands v. Hill, 55 N.Y. 18; Wallach v.
Stein, 136 A. 209, 210, 103 N.J.L. 470; O'Hagan v.
Kracke, 165 Misc. 4, 300 N.Y.S. 351, 361. Aliena-
tion; conveyance. 2 Bl.Comm. 294.
TRANSFER OF A CAUSE. The removal of a
cause from the jurisdiction of one court or judge
to another by lawful authority.
TRANSFER IN CONTEMPLATION OF DEATH.
A transfer made under a present apprehension on
the part of the transferor, from some existing
bodily or mental condition or impending peril,
creating a reasonable fear that death is near at
hand. This apprehension must be direct and ani-
mating and the only cause of the transfer. Rea v.
Heiner, D.C.Pa., 6 F.2d 389, 392.
TRANSFER TAX. A tax upon the passing of the
title to property or a valuable interest therein out
of or from the estate of a decedent, by. inheritance,
devise, or bequest. In re Hoffman's Estate, 143
N.Y. 327, 38 N.E. 311; In re Brez's Estate, 64 N.E.
958, 172 N.Y. 609. Sometimes also applied to a
tax on the transfer of property, particularly of an
incorporeal nature, such as bonds or shares of
stock, between living persons.
TRANSFER TICKET. An undertaking on the
part of a common carrier to continue the carriage
further without additional charge if the passenger,
in accordance with its terms, again presents him-
self at the proper place for carriage. It generally
designates the point at which the journey is to be
renewed, but contains no contract, express or im-
plied, for safety in making the transfer. Anton v.
St. Louis Public Service Co., 335 Mo. 188, 71 S.
W.2d 702, 706.
TRANSFERABLE. A term used in a quasi legal
sense, to indicate that the character of assignabili-
ty or negotiability attaches to the particular in-
strument, or that it may pass from hand to hand,
carrying all rights of the original holder. The
words "not transferable" are sometimes printed
upon a ticket, receipt, or bill of lading, to show
that the same will not be good in the hands of any
person other than the one to whom first issued.
TRANSFEREE. He to whom a transfer is made.
Kramer v. Spradlin, 148 Ga. 805, 98 S.E. 487, 488.
TRANSFERENCE. In Scotch law. The proceed-
ing to be taken upon the death of one of the par-
ties to a pending suit, whereby the action is trans-
ferred or continued, in its then condition, from
the decedent to his representatives. Transference
is either active or passive; the former, when it
is the pursuer (plaintiff) who dies; the latter,
upon the death of the defender. Ersk.Inst. 4, 1, 60.
The transferring of a legacy from the person to
whom it was originally given to another; this
is a species of ademption, but the latter is the
more general term, and includes cases not cov-
ered by the former.
TRANSFEROR. One who makes a transfer.
TRANSFERUNTUR DOMINIA SINE TITULO ET
TRADITIONE, PER USUCAPTIONEM, SCIL,
PER LONGAM CONTINUAM ET PACIFICAM
POSSESSIONEM. Co. Litt. 113. Rights of do-
minion are transferred without title or delivery,
by usucaption, to-wit, long and quiet possession.
TRANSFRETATIO. Lat. In old English law.
A crossing of the strait, [of Dover;] a passing or
sailing over from England to France.. The royal
passages or voyages to Gascony, Brittany, and
other parts of France were so called, and time
was sometimes computed from them.
TRANSGRESSIO. In old English law. A viola-
tion of law. Also trespass; the action of trespass.
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TRANSGRESSIO
TRANSGRESSIO EST CUM MODUS NON SERV-
ATUR NEC MENSURA, DEBIT ENIM QUILIBET
IN SUO FACTO MODUM HABERE ET MEN-
SURAM. Co.Litt. 37. Transgression is when nei-
ther mode nor measure is preserved, for every
one in his act ought to have a mode and measure.
TRANSGRESSIONE. In old English law. A writ
or action of trespass.
TRANSGRESSIONE MULTIPLICATA, CRESCAT
P(EN1E INFLICTIO. When transgression is mul-
tiplied, let the infliction of punishment be in-
creased. 2 Inst. 479.
TRANSGRESSIVE TRUST. See Trust.
TRANSHIPMENT. In maritime law. The act of
taking the cargo out of one ship and loading it in
another.
TRANSIENT, n. One who, or that which is tem-
porary. Synonymous with transitory, fugitive,
fleeting, momentary. Tilly v. Woodham, La.App.,
163 So. 771, 772.
TRANSIENT, adj. Passing across, as from one
thing or person to another; passing with time of
short duration ; not permanent; not lasting.
Tilly v. Woodham, La.App., 163 So. 771, 772.
TRANSIENT FOREIGNER. One who visits the
country, without the intention of remaining.
Yates v. lams, 10 Tex. 170.
TRANSIENT MERCHANT. A merchant who en-
gages in the vending or sale of merchandise at
any place in the state temporarily, and who does
not intend to become, and does not become, a per-
manent merchant of such place. State v. Fleming,
24 N.D. 593, 140 N.W. 674.
TRANSIENT PERSON. Within venue statute
one who is found in state but who has no fixed
place of residence therein. Fagg v. Benners, Tex.
Civ.App., 47 S.W.2d 872, 873.
TRANSIRE, v. Lat. To go, or pass over; to
pass from one thing, person, or place to another.
TRANSIRE, n. In English law. A warrant or
permit for the custom-house to let goods pass.
TRANSIT. A stop-over privilege on a continuous
journey granted by carrier by which a break de
facto in continuity of carriage of goods is disre-
garded and two legs of a journey are treated as
though covered without interruption, uniting both
legs into a through route for which a joint rate can
be published. Galveston Truck Line Corporation
v. State, Tex.Civ.App., 123 S.W.2d 797, 802; Balti-
more and 0. R. Co. v. United States, D.C.N.Y., 24
F.Supp. 734, 735.
TRANSIT IN REM JUDICATAM. It passes into
a matter adjudged; it becomes converted into
a res judicata or judgment. A contract upon
which a judgment is obtained is said to pass in
rem judicatam. United States v. Cushman, 2
Sumn. 436, Fed.Cas.No.14,908; 3 East, 251; Rob-
ertson v. Smith, 18 Johns. (N.Y.) 480, 9 Am.Dec.
227.
TRANSIT TERRA CUM ONERE. Land passes
subject to any burden affecting it. Co. Litt. 231a;
Broom, Max. 495, 706.
TRANSITIVE COVENANT. See Covenant.
TRANSITORY. Passing from place to place; that
may pass or be changed from one place to an-
other; the opposite of "local." See "Action."
TRANSITUS. Lat. Passage from one place to
another; transit. In transitu, on the passage,
transit, or way. 2 Kent, Comm. 543.
TRANSLADO. Span. A transcript.
TRANSLATION. The reproduction in one lan-
guage of a book, document, or speech in another
language.
The transfer of property; but in this sense it
is seldom used. 2 Bl.Comm. 294.
In ecclesiastical law. As applied to a bishop,
the term denotes his removal from one diocese to
another.
TRANSLATITIUM EDICTUM. Lat. In Roman
law. The prmtor, on his accession to office, did
not usually publish an entirely new edict, but re-
tained the whole or a part of that promulgated by
his predecessor, as being of an approved or perma-
nently useful character. The portion thus repeat-
ed or handed down from year to year was called
the "edictum translatitium." See Mackeld. Rom.
Law, § 36.
TRANSLATIVE FACT. A fact by means of which
a right is transferred or passes from one person
to another; one, that is, which fulfills the double
function of terminating the right of one person
to an object, and of originating the right of an-
other to it.
TRANSMISSION. In the civil law. The right
which heirs or legatees may have of passing to
their successors the inheritance or legacy to which
they were entitled, if they happen to die without
having exercised their rights. Domat, liv. 3, t. 1,
s. 10; 4 Toullier, no. 186; Dig. 50, 17, 54; Code,
6, 51.
TRANSPORT, n. In old New York law. A con-
veyance of land.
TRANSPORT, v. To carry or convey from one
place to another. Sacramento Na y . Co. v. Salz, 47
S.Ct. 368, 369, 273 U.S. 326, 71 L.Ed. 663; People
v. One 1941 Cadillac Club Coupe, 63 Ca1.2d 418, 147
P.2d 49, 51.
TRANSPORTATION. The removal of goods or
persons from one place to another, by a carrier.
Railroad Co. v. Pratt, 22 Wall. 133, 22 L.Ed. 827;
Interstate Commerce Com'n v. Brimson, 14 S.Ct.
1125, 154 U.S. 447, 38 L.Ed. 1047; Gloucester Ferry
Co. v. Pennsylvania, 5 S.Ct. 826. 114 U.S. 196, 29
L.Ed. 158.
Criminal Law
A species of punishment consisting in removing
the criminal from his own country to another,
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TRAVERSE
(usually a penal colony,) there to remain in exile
for a prescribed period. Fong Yue Ting v. U. S.,
13 S.Ct. 1016, 149 U.S. 698, 37 L.Ed. 905.
TRANSUMPT. In Scotch law, an action of tran-
sumpt is an action competent to any one having
a partial interest in a writing, or immediate use
for it, to support his title or defenses in other
actions. It is directed against the custodier of
the writing, calling upon him to exhibit it, in
order that a transumpt,  e., a copy, may be ju-
dicially made and delivered to the pursuer. Bell.
TRAP. A device, as a pitfall, snare, or machine
that shuts suddenly as with a spring, for taking
game and other animals; a gin. Hence, any de-
vice or contrivance by which one may be caught
unawares, strategem; snare; gin. Jones v. C. F.
Smith Co., 280 Mich. 514, 273 N.W. 786, 787.
It imports an affirmative intent or design either malicious
or mischievous, to cause injury. Gumbart v. Waterbury
Club Holding Corporation, D.C.Conn., 27 F.Supp. 228, 229,
230.
The doctrine of "trap" as ground for recovery by tres-
passer is rested upon theory that owner expected trespass-
er and prepared an injury. Moseley v. Alabama Power
Co., 246 Ala. 416, 21 So.2d 305, 307.
TRASLADO. In Spanish law. A copy; a sight.
White, New Recop. b. 3, tit. 7, c. 3.
A copy of a document taken by the notary from
the original, or a subsequent copy taken from the
protocol, and not a copy taken directly from the
matrix or protocol. Downing v. Diaz, 80 Tex.
436, 16 S.W. 54.
TRASSANS. Drawing; one who draws. The
drawer of a bill of exchange.
TRASSATUS. One who is drawn, or drawn upon.
The drawee of a bill of exchange. Heinecc. de
Camb. c. 6, §§ 5, 6.
TRAUMA. In medical jurisprudence. A wound;
any injury to the body caused by external vio-
lence. Periss v. Nevada Industrial Commission,
55 Nev. 40, 24 P.2d 318.
TRAUMATIC. Caused by or resulting from a
wound or any external injury; as, traumatic in-
sanity, produced by an injury to or fracture of the
skull with consequent pressure on the brain.
Straight Creek Fuel Co. v. Hunt, 221 Ky. 265, 298
S.W. 686, 687.
TRAUMATISM. A diseased condition of the body
or any part of it caused by a wound or external
injury. Markham v. State Industrial Commis-
sion, 85 Okl. 81, 205 P. 163, 169.
TRAVAIL. The act of child-bearing. A woman
is said to be in her travail from the time the pains
of child-bearing commence until her delivery.
Scott v. Donovan, 153 Mass. 378, 26 N.E. 871.
TRAVEL. To go from one place to another at
a distance; to journey; spoken of voluntary
change of place. White v. Beazley, 1 Barn. & Ald.
171; Hancock v. Rand, 94 N.Y. 1, 46 Am.Rep. 112;
State v. Smith, 157 Ind. 241, 61 N.E. 566, 87 Am.
St.Rep. 205.
TRAVELED PART OF HIGHWAY. See Traveled
Way.
TRAVELED PLACE. A place where the public
have, in some manner, acquired the legal right to
travel.  Sanders v. Southern Ry. Co., Carolina
Division, 97 S.C. 423, 81 S.E. 786, 788.
TRAVELED WAY. The traveled path, or the path
used for public travel, within located limits of the
way. Dupuis v. Town of Billerica, 260 Mass. 210,
157 N.E. 339, 341. Also called "traveled part of
highway." Westlund v. Iverson, 154 Minn. 52,
191 N.W. 253; Schnabel v. Kafer, 39 S.D. 70, 162
N.W. 935, 936.
TRAVELER. One who passes from place to place,
whether for pleasure, instruction, business or
health. Lockett v. State, 47 Ala. 45; 10 C.B.N.S.
429.
TRAVELER'S CHECK. A bill of exchange drawn
by the issuing bank upon itself, accepted by the
act of issuance, and the right of countermand ap-
plied to ordinary checks does not exist as to it.
It has the characteristics of a cashier's check of
the issuing bank. Pines v. United States, C.C.A.
Iowa, 123 F.2d 825, 828.
TRAVELING SALESMAN. A person who travels
from town to town and who takes or solicits or-
ders for goods, and forwards them to his principal
for approval or rejection. T. C. May Co. v. Men-
zies Shoe Co., 184 N.C. 150, 113 S.E. 593, 594;
Upchurch v. City of La Grange, 159 Ga. 113, 125
S.E. 47, 48.
A traveling salesman Is not employed or authorized to
fix prices. He cannot pass upon the credit or standing of
customers. He does not collect accounts. He is not re-
sponsible for the quality, condition or delivery of the
goods. He makes no personal contracts and he has no oth-
er interest in the sale than his compensation for those
which are approved by his employer. The territory as-
signed to him may be confined to a single city or state, or
it may cover cities or states. Commonly, the employer
pays the salesman's expenses, but sometimes, especially if
he works for a commission, he pays his own expenses.
Sometimes he is allotted a certain territory and he re-
ceives a commission upon all sales which are sent in from
that territory. In some cases the employer may direct the
routes he is to travel, and in other cases the salesman
chooses his own routes. Sometimes the salesman sends
the orders directly to his employer and sometimes the
customers themselves send in the orders to the employer.
He often sells after exhibiting samples. In re Herbert
Candy Co., D.C.Pa., 43 F.Supp. 588, 591.
TRAVELING WAYS. As applied to coal mining,
places for the passage of workmen to and from
different parts of the mine. Ricardo v. Central
Coal & Coke Co., 100 Kan. 95, 163 P. 641, 643.
TRAVERSE. In the language of pleading, a tra-
verse signifies a denial. Thus, where a defendant
denies any material allegation of fact in the plain-
tiff's declaration, he is said to traverse it, and the
plea itself is thence frequently termed a "tra-
verse." Brown.
Criminal Practice
To put off or delay the trial of an indictment till
a succeeding term. More properly, to deny or take
issue upon an indictment. 4 Bl.Comm. 351.
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General
Common traverse. A simple and direct denial
of the material allegations of the opposite plead-
ing, concluding to the country, and without in-
ducement or absque hoc.
General traverse. One preceded by a general
inducement, and denying in general terms all that
is last before alleged on the opposite side, instead
of pursuing the words of the allegations which it
denies. Gould.P1. vii. 5.
Special traverse. A peculiar form of traverse or
denial, the design of which, as distinguished from
a common traverse, is to explain or qualify the
denial, instead of putting it in the direct and
absolute form. It consists of an affirmative and
a negative part, the first setting forth the new
affirmative matter tending to explain or qualify
the denial, and technically called the "induce-
ment," and the latter constituting the direct denial
itself, and technically called the "absque hoc."
Steph.Pl. 169-180; Allen v. Stevens, 29 N.J.L. 513. ,
Chambers v. Hunt, 18 N.J.L. 352; People v. Pull-
man's Car Co., 175 Ill. 125, 51 N.E. 664, 64 L.R.A.
366.
Traverse jury. A petit jury; a trial jury; a
jury impaneled to try an action or prosecution,
as distinguished from a grand jury. State v.
James, 96 N.J.L. 132, 114 A. 553, 555, 16 A.L.R.
1141; De Krasner v. State, 54 Ga.App. 41, 187
S.E. 402, 405.
Traverse of indictment or presentment. The
taking issue upon and contradicting or denying
some chief point of it. Jacob.
Traverse of office. The proving that an inquisi-
tion made of lands or goods by the escheator is
defective and untruly made. Tomlins. It is the
challenging, by a subject, of an inquest of office,
as being defective and untruly made. Mozley &
Whitley.
Traverse upon a traverse. One growing out of
the same point or subject-matter as is embraced
in a preceding traverse on the other side.
TRAVERSER. In pleading. One who traverses
or denies. A prisoner or party indicted; so called
from his traversing the indictment.
TRAVERSING NOTE. This is a pleading in chan-
cery, and consists of a denial put in by the plain-
tiff on behalf of the defendant, generally denying
all the statements in the plaintiff's bill. The ef-
fect of it is to put the plaintiff upon proof of the
whole contents of his bill, and is only resorted to
for the purpose of saving time, and in a case
where the plaintiff can safely dispense with an an-
swer. A copy of the note must be served on the
defendant. Brown.
TREACHER, TRECHETOUR, or TREACHOUR.
A traitor.
TREAD-MILL, or TREAD-WHEEL. An instru-
ment of prison discipline, being a wheel or cylinder
with an horizontal axis, having steps attached to
it, up which the prisoners walk, and thus put the
axis in motion. The men hold on by a fixed rail,
and, as their weight presses down the step upon
which they tread, they ascend the next step, and
thus drive the wheel. Enc. Brit.
TREASON. The offense of attempting by overt
acts to overthrow the government of the state to
which the offender owes allegiance; or of betray-
ing the state into the hands of a foreign power.
Webster.
"Treason" consists of two elements: Adherence to the
enemy, and rendering him aid and comfort. Cramer v.
U. S., U.S.N.Y., 65 S.Ct. 918, 932, 325 U.S. 1, 89 L.Ed. 1441.
In England, treason is an offense particularly directed
against the person of the sovereign, and consists (1) in
compassing or imagining the death of the king or queen,
or their eldest son and heir; (2) in violating the king's
companion, or the king's eldest daughter unmarried, or the
wife of the king's eldest son and heir; (3) in levying war
against the king in his realm; (4) in adhering to the king's
enemies in his realm, giving to them aid and comfort in
the realm or elsewhere, and (5) slaying the chancellor,
treasurer, or the king's justices of the one bench or the
other, justices in eyre, or justices of assize, and all other
justices assigned to hear and determine, being in their
places doing their offices. 4 Steph.Comm. 185-193; 4 Bl.
Comm. 76-84.
Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies,
giving them aid and comfort. U.S.Const. art. 3, § 3, cl. 1.
See Young v. U. S., 97 U.S. 62, 24 L.Ed. 992; U. S. v.
Bollman, 1 Cranch, C.C. 373, Fed.Cas.No.14,622; U. S. v.
Pryor, 3 Wash.C.C. 234, Fed.Cas.No.16,096.
Constructive Treason
Treason imputed to a person by law from his
conduct or course of actions, though his deeds
taken severally do not amount to actual treason.
This doctrine is not known in the United States.
High Treason
In English law. Treason against the king or
sovereign, as distinguished from petit or petty
treason, which might formerly be committed
against a subject. 4 Bl.Comm. 74, 75; 4 Steph.
Comm. 183, 184, note.
Misprision of Treason
See Misprision.
Petit Treason
In English law. The crime committed by a wife
in killing her husband, or a servant his lord or
master, or an ecclesiastic his lord or ordinary.
4 Bl.Comm. 75.
Treason-felony
Under the English statute 11 & 12 Vict. c. 12,
passed in 1848, is the offense of compassing, devis-
ing, etc., to depose her majesty from the crown;
or to levy war in order to intimidate either house
of parliament, etc., or to stir up foreigners by
any printing or writing to invade the kingdom.
This offense is punishable with penal servitude for
life, or for any term not less than five years, etc.,
under statutes 11 & 12 Vict. c. 12, § 3; 20 & 21
Vict. c. 3, § 2; 27 & 28 Vict. c. 47, § 2. By the
statute first above mentioned, the government is
enabled to treat as felony many offenses which
must formerly have been treated as high treason.
Mozley & Whitley.
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TREATY
TREASONABLE. Having the nature or guilt of
treason.
TREASURE. A treasure is a thing hidden or
buried in the earth, on which no one can prove
his property, and which is discovered by chance.
Civil Code La. art. 3423, par. 2. See Treasure-
Trove.
TREASURE-TROVE. Literally, treasure found.
Money or coin, gold, silver, plate or bullion found
hidden in the earth or other private place, the
owner thereof being unknown. 1 Bl.Comm. 295.
Called in Latin "thesaurus inventus;" and in
Saxon "fynderinga." Huthmacher v. Harris, 38
Pa. 499, 80 Am.Dec. 502; Vickery v. Hardin, 77
Ind.App. 558, 133 N.E. 922, 923.
Finder of "treasure trove," is entitled thereto as against
owner of land where "treasure trove" is found and all the
world save the true owner, in absence of statute. Groover
v. Tippins, 51 Ga.App. 47, 179 S.E. 634, 635.
TREASURER. An officer of a public or private
corporation, company, or government, charged
with the receipt, custody, and disbursement of its
moneys or funds. See State v. Eames, 39 La.
Ann. 986, 3 So. 93; In re Millward-Cliff Cracker
Co.'s Estate, 161 Pa. 167, 28 A. 1072; Jones v.
Marrs, 114 Tex. 62, 263 S.W. 570, 574.
TREASURER, LORD HIGH. Formerly the chief
treasurer of England, who had charge of the mon-
eys in the exchequer, the chancellor of the ex-
chequer being under him. He appointed all reve-
nue officers and escheaters, and leased crown
lands. The office is obsolete, and his duties are
now performed by the ,lords commissioners of
the treasury. Stim. Gloss.
TREASURER OF THE UNITED STATES. An
officer in the treasury department appointed by
the president by and with the advice and consent
of the senate. His principal duties are—to receive
and keep the moneys of the United States, and
disburse the same upon warrants drawn by the
secretary of the treasury, countersigned by either
comptroller and recorded by the register; to take
receipts for all moneys paid by him; to render his
account to the first comptroller quarterly, or often-
er if required, and transmit a copy thereof, when
settled, to the secretary of the treasury; to lay be-
fore each house, on the third day of every session
of congress, fair and accurate copies of all ac-
counts by him from time to time rendered to and
settled with the first comptroller, and a true and
perfect account of the state of the treasury; to
submit at all times to the secretary of the treasury
and the comptroller, or either of them, the inspec-
tion of the moneys in his hands. (31 U.S.C.A. §
141 et seq.).
The office of the Treasurer of the United States and
certain other offices and agencies and their functions
were consolidated into the Fiscal Service of the Treasury
Department, the function of said office to be administered
by the Treasurer of the United States by Reorg. Plan No.
III, § 1(a), eff. June 30, 1940, set out in note under 5 U.S.
C.A. § 133t.
TREASURER'S REMEMBRANCER. In English
law. He whose charge was to put the lord treas-
urer and the rest of the judges of the exchequer in
remembrance of such things as were called on and
dealt in for the sovereign's behoof. There is still
one in Scotland. Wharton,
TREASURY. A place or building in which stores
of wealth are reposited; particularly, a place
where the public revenues are deposited and kept,
and where money is disbursed to defray the ex-
penses of government. Webster.
That department of government which is
charged with the receipt, custody, and disburse-
ment (pursuant to appropriations) of the public
revenues or funds.
TREASURY, FIRST LORD OF. A high office of
state in Great Britain, usually held by the Prime
Minister.
TREASURY BENCH. In the English house of
commons, the first row of seats on the right hand
of the speaker is so called, because occupied by the
first lord of the treasury or principal minister of
the crown. Brown.
TREASURY CHEST FUND. A fund, in England,
originating in the unusual balances of certain
grants of public money, which is used for banking
and loan purposes by the commissioners of the
treasury. Wharton.
TREASURY NOTE. A note or bill issued by the
treasury department by the authority of the Unit-
ed States government, and circulating as money.
See Brown v. State, 120 Ala. 342, 25 So. 182.
TREASURY SECURITIES. Such as have been
lawfully issued and thereafter have been bought
by corporation for a consideration out of corpo-
rate funds or otherwise acquired from owners,
and not retired but placed as an asset of the cor-
poration in its treasury for future use as such.
Miners Nat. Bank of Pottsville v. Frackville Sew-
erage Co., 157 Pa.Super. 167, 42 A.2d 177, 179.
TREASURY STOCK. Ordinarily stock which has
been issued as fully paid to stockholders and sub-
sequently acquired by the corporation to be used
by it in furtherance of its corporate purposes, and
stock which is merely to be held as unsubscribed
for and unissued is not usually regarded as "treas-
ury stock". In re Public Service Holding Corpora-
tion, Del., 24 A.2d 584, 586.
TREATMENT. A broad term covering all the
steps taken to effect a cure of an injury or dis-
ease; the word including examination and diag-
nosis as well as application of remedies. Kirsch-
ner v. Equitable Life Assur. Soc. of U. S., 157
Misc. 635, 284 N.Y.S. 506, 510; Hester v. Ford, 221
Ala. 592, 130 So. 203, 206.
TREATY.
International Law
A compact made between two or more inde-
pendent nations with a view to the public wel-
fare. Louis Wolf & Co. v. United States, Cust. &
Pat.App., 107 F.2d 819, 827; United States v. Bel-
mont, N.Y., 57 S.Ct. 758, 761, 301 U.S. 324, 81 L.
Ed. 1134.
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TREATY
An agreement, league, or contract between two
or more nations or sovereigns, formally signed by
commissioners properly authorized, and solemnly
ratified by the several sovereigns or the supreme
power of each state. Edye v. Robertson, 5 S.Ct.
247, 112 U.S. 580, 28 L.Ed. 798; Ex parte Ortiz,
C.C.Minn., 100 F. 962; Charlton v. Kelly, 33 S.Ct.
945, 954, 29 S.Ct. 447, 57 L.Ed. 1274, 46 L.R.A.,
N.S., 397.
A "treaty" is not only a law but also a contract be-
tween two nations and must, if possible, be so construed as
to give full force and effect to all its parts. United States
v. Reid, C.C.A.Or., 73 F.2d 153, 155.
Personal treaties relate exclusively to the persons of the
contracting sovereigns, such as family alliances, and treat-
ies guaranteeing the throne to a particular sovereign and
his family. As they relate to the persons, they expire of
course on the death of the sovereign or the extinction of
his family. With the advent of constitutional government
in Europe these treaties have lost their importance. Real
treaties relate solely to the subject-matters of the conven-
tion, independently of the persons of the contracting par-
ties, and continue to bind the state, although there may
be changes in its constitution or in the persons of its rul-
ers. Boyd's Wheat. Int. Law § 29.
Private Law
The discussion of terms which immediately pre-
cedes the conclusion of a contract or other trans-
action. A warranty on the sale of goods, to be
valid, must be made during the "treaty" preced-
ing the sale. Chit. Cont. 419; Sweet.
TREATY OF PEACE. An agreement or contract
made by belligerent powers, in which they agree
to lay down their arms, and by which they stipu-
late the conditions of peace and regulate the man-
ner in which it is to be restored and supported.
Vattel, b. 4, c. 2, § 9.
TREBELLANIC PORTION. In consequence of
this article, the trebellanic portion of the civil
law—that is to say, the portion of the property
of the testator which the instituted heir had a
right to detain when he was charged with a fidei
commissa or fiduciary bequest—is no longer a
part of our law. Civ.Code La. art. 1520, par. 3.
TREBLE COSTS. See Costs.
TREBLE DAMAGES. In practice. Damages giv-
en by statute in certain cases, consisting of the
single damages found by the jury, actually tripled
in amount. The usual practice has been for the
jury to find the single amount of the damages,
and for the court, on motion, to order that amount
to be trebled. 2 Tidd, Pr. 893, 894.
TREBUCKET. A tumbrel, castigatory, or cuck-
ing stool. See James v. Comm., 12 Serg. & R.
(Pa.) 227.
TREE. A woody plant, the branches of which
spring from, and are supported upon, a trunk or
body. Nettles v. Lichtman, 228 Ala. 52, 152 So.
450, 452, 91 A.L.R. 1455.
TREET. In old English law. Fine wheat.
TREMAGIUM, TREMESIUM. In old records.
The season or time of sowing summer corn, being
about March, the third month, to which the word
may allude. Cowell.
TRES FACIUNT COLLEGIUM. Three make a
corporation; three members are requisite to con-
stitute a corporation. Dig. 50, 16, 8; 1 Bl.Comm.
469.
TRESAEL. L. Fr. A great-great-grandfather.
Britt. c. 119. Otherwise written "tresaiel," and
"tresayle." 3 Bl.Comm. 186; Litt. § 20.
TRESAYLE. An abolished writ sued on ouster
by abatement, on the death of the grandfather's
grandfather.
TRESPASS. Doing of unlawful act or of lawful
act in unlawful manner to injury of another's
person or property. Waco Cotton Oil Mill of
Waco v. Walker, Tex.Civ.App., 103 S.W.2d 1071,
1072. An unlawful act committed with violence,
actual or implied, causing injury to the person,
property, or relative rights of another; an injury
or misfeasance to the person, property, or rights
of another, done with force and violence, either
actual or implied in law. Grunson v. State, 89
Ind. 536, 46 Am.Rep. 178; Southern Ry. Co. v.
Harden, 101 Ga. 263, 28 S.E. 847; Brown v. Walker,
188 N.C. 52, 123 S.E. 633, 636. It comprehends not
only forcible wrongs, but also acts the conse-
quences of which make them tortious. Mawson v.
Vess Beverage Co., Mo.App., 173 S.W.2d 606, 612,
613, 614.
Trespass, in its most comprehensive sense, signifies any
transgression or offense against the law of nature, of so-
ciety, or of the country in which we live; and this,
whether It relates to a man's person or to his property.
In its more limited and ordinary sense, it signifies an
iniury committed with violence, and this violence may be
either actual or implied; and the law will imply violence
tnough none is actually used, when the injury is of a di-
rect and immediate kind, and committed on the person or
tangible and corporeal property of the plaintiff. Of actual
violence, an assault and battery is an instance; of implied,
a peaceable but wrongful entry upon a person's land.
Brown.
In practice a form of action, at the common
law, which lies for redress in the shape of money
damages for any unlawful injury done to the
plaintiff, in respect either to his person, property,
or rights, by the immediate force and violence of
the defendant.
Continuing trespass. One which is in its nature
a permanent invasion of the rights of another;
as, where a person builds on his own land so that
a part of the building overhangs his neighbor's
land. H. H. Hitt Lumber Co. v. Cullman Property
Co., 189 Ala. 13, 66 So. 720, 721.
Joint trespass. Where two or more persons
unite in committing it, or where some actually
commit the tort, the others command, encourage
or direct it. Stephens v. Schadler, 182 Ky. 833,
207 S.W. 704.
Permanent trespass. One which consists of a
series of acts, done on successive days, which are
of the same nature, and are renewed or continued
from day to day, so that, in the aggregate, they
make up one indivisible wrong. 3 Bl.Comm. 212.
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Trespass de bonis asportatis. (Trespass for
goods carried away.) In practice. The technical
name of that species of action of trespass for in-
juries to personal property which lies where the
injury consists in carrying away the goods or
property. See 3 Bl.Comm. 150, 151.
Trespass for mesne profits. A form of action
supplemental to an action of ejectment, brought
against the tenant in possession to recover the
profits which he has wrongfully received during
the time of his occupation. 3 Bl.Comm. 205.
Trespass on the case. The form of action, at
common law, adapted to the recovery of damages
for some injury resulting to a party from the
wrongful act of another, unaccompanied by direct
or immediate force, or which is the indirect or
secondary consequence of defendant's act. Com-
monly called, by abbreviation, "Case." Munal v.
Brown, C.C.Colo., 70 F. 968; Nolan v. Railroad
Co., 70 Conn. 159, 39 A. 115, 43 L.R.A. 305; New
York Life Ins. Co. v. Clay County, 221 Iowa 966,
267 N.W. 79, 80.
Trespass quare clausum fregit. "Trespass
wherefore he broke the close." The common-law
action for damages for an unlawful entry or tres-
pass upon the plaintiff's land. In the Latin form
of the writ, the defendant was called upon to show
why he broke the plaintiff's close;  e., the real
or imaginary structure inclosing the land, whence
the name. It is commonly abbreviated to "tres-
pass qu. el. fr." See Kimball v. Hilton, 92 Me.
214, 42 A. 394. See, also, Trespass to try title, in-
fra.
Trespass to try title. The name of the action
used in several of the states for the recovery of
the possession of real property, with damages
for any trespass committed upon the same by the
defendant.
A procedure by which rival claims to title or right to
possession of land may be adjudicated, and as an incident
partition may also be had when the controversy concern-
ing title or right to possession is settled. Tide Water Oil
Co. v. Bean, Tex.Civ.App., 148 S.W.2d 184, 187, 188.
It is different from "trespass quare clausum fregit," in
that title must be proved. Bethea v. Home Furniture Co.,
185 S.C. 271, 194 S.E. 10, 11.
Trespass vi et armis. Trespass with force and
arms. The common-law action for damages for
any injury committed by the defendant with di-
rect and immediate force or violence against the
plaintiff or his property. See Mawson v. Vess
Beverage Co., Mo.App., 173 S.W.2d 606, 613.
TRESPASSER. One who has committed tres-
pass.
Joint Trespassers
Two or more who unite in committing a tres-
pass. Kansas City v. File, 60 Kan. 157, 55 P. 877;
Bonte v. Postel, 109 Ky. 64, 58 S.W. 536, 51 L.R.A.
187.
Trespasser Ab Initio
Trespasser from the beginning. A term applied
to a tort-feasor whose acts relate back so as to
make a previous act, at the time innocent, unlaw-
ful; as if he enter peaceably, and subsequently
commit a breach of the peace, his entry is con-
sidered a trespass. Stim. Gloss. See Wright v.
Marvin, 59 Vt. 437, 9 A. 601.
TRESTORNARE. In old English law. To turn
aside; to divert a stream from its course. Bract.
fols. 115, 234b. To turn or alter the course of a
road. Cowell.
TRESVIRI. Lat. In Roman law. Officers who
had the charge of prisons, and the execution of
condemned criminals. Calvin.
TRET. An allowance made for the water or dust
that may be mixed with any commodity. It dif-
fers from tare, (q. v.).
TRETHINGA. In old English law. A trithing;
the court of a trithing.
TREYT. Withdrawn, as a juror. Written also
treat. Cowell.
TRIA CAPITA, in Roman law, were civitas, lib-
ertas, and familia; i. e., citizenship, freedom, and
family rights.
TRIAL. A judicial examination, in accordance
with law of the land, of a cause, either civil or
criminal, of the issues between the parties, wheth-
er of law or fact, before a court that has jurisdic-
tion over it. People v. Vitale, 364 Ill. 589, 5 N.E.
2d 474, 475. Gulf, C. & S. F. Ry. Co. v. Muse, 109
Tex. 352, 207 S.W. 897, 899, 4 A.L.R. 613; State v.
Dubray, 121 Kan. 886, 250 P. 316, 319; Photo Cines
Co. v. American Film Mfg. Co., 190 I1l.App. 124,
128. For purpose of determining such issue.
City of Pasadena v. Superior Court in and for
Los Angeles County, 212 Cal. 309, 298 P. 968, 970;
State ex rel. Stokes v. Second Judicial Dist. Court,
in and for Washoe County, 55 Nev. 115, 127 P.2d
534.
It includes all proceedings from time when issue Is
joined, or, more usually, when parties are called to try
their case in court, to time of its final determination.
Molen v. Denning & Clark Livestock Co., 56 Idaho 57, 50
P.2d 9, 11.
And in its strict definition, the word "trial" in criminal
procedure means the proceedings in open court after the
pleadings are finished and the prosecution is otherwise
ready, down to and including the rendition of the verdict.
Thomas v. Mills, 117 Ohio St. 114, 157 N.E. 488, 489, 54 A.
L.R. 1220.
Fair and Impartial Trial.
See Fair and Impartial Trial,
Fair Trial
Mistrial
New Trial
A re-examination of an issue of fact in the same
court after a trial and decision by a jury or court
or by referees. Code Civ.Proc.Cal. § 656. A re-
examination of the issue in the same court, before
another jury, after a verdict has been given.
Pen.Code Cal. § 1179. A re-examination in the
same court of an issue of fact, or some part or
portions thereof, after the verdict by a jury, re-
See Fair Trial.
See that title.
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port of a referee, or a decision by the court. Rev.
Code Iowa 1880, § 2837 (Code 1931, § 11549). And
see Oxford v. State, 80 Okl. 103, 194 P. 101; Warn-
er v. Goding, 91 Fla. 260, 107 So. 406, 408.
New Trial Paper
In English practice. A paper containing a list
of causes in which rules nisi have been obtained
for a new trial, or for entering a verdict in place
of a nonsuit, or for entering judgment non ob-
stante veredicto, or for otherwise varying or set-
ting aside proceedings which have taken place
at nisi pri g s. These are called on for argument
in the order in which they stand in the paper, on
days appointed by the judges for the purpose.
Brown.
Public Trial
A trial held in public, in the presence of the
public, or in a place accessible and open to the
attendance of the public at large, or of persons
who may properly be admitted. "The requirement
of a public trial is for the benefit of the accused;
that the public may see, he is fairly dealt with
and not unjustly condemned, and that the pres-
ence of interested spectators may keep his triers
keenly alive to a sense of their responsibility and
to the importance of their functions; and the re-
quirement is fairly observed if, without partiality
or favoritism, a reasonable proportion of the pub-
lic is suffered to attend, notwithstanding that those
persons whose presence could be of no service to
the accused, and who would only be drawn thither
by a prurient curiosity, are excluded altogether."
Cooley, Const.Lim. *312. And see People v. Hall,
64 N.Y.S. 433, 51 App.Div. 57; Commonwealth v.
Trinkle, 124 A. 191, 192, 279 Pa. 564; People v.
Greeson, 203 N.W. 141, 149, 230 Mich. 124.
Separate Trial
See Separate.
Speedy Trial
See that title.
State Trial
See State.
Trial Amendment
Pleading that a litigant files during progress
of actual trial of case, office of which is to meet
some situation that is developed by evidence.
Texas Electric Service Co. v. Kinkead, Tex.Civ.
App., 84 S.W.2d 567, 570.
Trial at Bar
A species of trial now seldom resorted to, ex-
cepting in cases where the matter in dispute is one
of great importance and difficulty. It takes place
before all the judges at the bar of the court in
which the action is brought. Brown. See 2 Tidd,
Pr. 747; Steph.Pl. 84.
Trial at Nisi Prius
In practice. The ordinary kind of trial which
takes place at the sittings, assizes, or circuit, be-
fore a single judge. 2 Tidd, Pr. 751, 819.
Trial by Certificate
A form of trial allowed in cases where the evi-
dence of the person certifying was the only prop-
er criterion of the point in dispute. Under such
circumstances, the issue might be determined by
the certificate alone, because, if sent to a jury, it
would be conclusive upon them, and therefore
their intervention was unnecessary. Tomlins.
Trial by Fire
See Ordeal.
Trial by Grand Assize
A peculiar mode of trial allowed in writs of
right. See Assize; Grand Assize.
Trial by Inspection or Examination
A form of trial in which the judges of the court,
upon the testimony of their own senses, decide
the point in dispute.
Trial by Jury
A trial in which the issues of fact are to be de-
termined by the verdict of a jury of twelve men,
duly selected, impaneled, and sworn. The terms
"jury" and "trial by jury" were used at the adop-
tion of the constitution, and always, it is believed,
before that time, and almost always since, in a
single sense. A jury for the trial of a cause was
a body of twelve men, described as upright, well-
qualified, and lawful men, disinterested and im-
partial, not of kin nor personal dependents of
either of the parties, having their homes within
the jurisdictional limits of the court, drawn and
selected by officers free from all bias in favor of or
against either party, duly impaneled under the
direction of a competent court, sworn to render a
true verdict according to the law and the evidence
given them, who, after hearing the parties and
their evidence, and receiving the instructions of
the court relative to the law involved in the trial,
and deliberating, when necessary, apart from all
extraneous influences, must return their unani-
mous verdict upon the issue submitted to them.
State v. McClear, 11 Nev. 60. And see Gunn v. Un-
ion R. Co., 23 R.I. 289, 49 A. 999; State v. Harney,
168 Mo. 167, 67 S.W. 620, 57 L.R.A. 846; Branham
v. Commonwealth, 209 Ky. 734, 273 S.W. 489, 490;
Davis v. Central States Fire Ins. Co., 121 Kan.
69, 245 P. 1062, 1063; N. Wagman & Co. v. Schafer
Motor Freight Service, 167 Misc. 681, 4 N.Y.S.2d
526, 529.
In a federal court a trial by jury as understood and ap-
plied at common law and includes all the essential elements
as they were recognized in this country and England when
the constitution was adopted, including a jury of 12 men,
neither more nor less. U.S.C.A.Const. art. 3, § 2, cl. 3;
Amend. 6. Coates v. Lawrence, D.C.Ga., 46 F.Supp. 414,
423.
The Seventh Amendment to Federal Constitution declar-
ing the right of "trial by jury" applies only to suits at
common law. U.S.C.A.Const.Amend. 7. Ransom v. Staso
Milling Co., D.C.Vt., 2 F.R.D. 128, 130, 131.
A right to a "trial by jury" when given by a constitu-
tion means a trial by a jury of 12, but where the right to
a jury trial is not given by the constitution, the legislature
may fix the number of jurors at less than 12. Doyle v.
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Police Court of City of Niagara Falls, 177 Misc. 359, 30 N.
Y.S.2d 324, 325. And is right to a jury trial in such cases
as it existed at time of adoption of constitution. Blum
v. Fresh Grown Preserve Corporation, N.Y., 292 N.Y. 241,
54 N.E.2d 809, 810.
Trial by Proviso
A proceeding allowed where the plaintiff in an
action desists from prosecuting his suit, and does
not bring it to trial in convenient time. The de-
fendant, in such case, may take out the venire fa-
cias to the sheriff, containing these words, "pro-
viso quod," etc., i. e., provided that. If plaintiff
take out any writ to that purpose, the sheriff shall
summon but one jury on them both. This is call-
ed "going to trial by proviso." Jacob, tit. "Pro-
viso."
Trial by the Record
A form of trial resorted to where issue is taken
upon a plea of nul tiel record, in which case the
party asserting the existence of a record as plead-
ed is bound to produce it in court on a day as-
signed. If the record is forthcoming, the issue
is tried by inspection and examination of it. If
the record is not produced, judgment is given for
his adversary. 3 Bl.Comm. 330.
Trial by Wager of Battel
See Wager of Battel.
Trial by Wager of Law
In old English law. A method of trial, where
the defendant, coming into court, made oath that
he did not owe the claim demanded of him, and
eleven of his neighbors, as compurgators, swore
that they believed him to speak the truth. 3 Bl.
Comm. 343. See Wager of Law.
Trial by Witnesses
The name "trial per testes" has been used for
a trial without the intervention of a jury, is the
only method of trial known to the civil law, and
is adopted by depositions in chancery. The judge
is thus left to form, in his own breast, his sen-
tence upon the credit of the witnesses examined.
But it is very rarely used at common law. Tom-
lins.
Trial De Novo
A new trial or retrial had in an appellate court
in which the whole case is gone into as if no trial
whatever had been had in the court below. See
Karcher v. Green, 32 A. 225, 8 Houst. (Del.) 163;
Ex parte Morales, Tex.Cr.App., 53 S.W. 108; Carl-
son v. Avery Co., 196 Ill.App. 262, 272; Bardwell
v. Riverside Oil and Refining Co., 139 Okl. 26, 280
P. 1083, 1085.
Trial Jury
See Jury.
Trial List
A list of cases marked down for trial for any
one term.
Trial With Assessors
Admiralty actions involving nautical questions,
e. g., actions of collision, are generally tried in
England before a judge, with Trinity Masters sit-
ting as assessors. Rosc.Adm. 179.
TRIATIO IBI SEMPER DEBET FIERI, UBI JUR-
ATORES MELIOREM POSSUNT HABERE NO-
TITIAM. Trial ought always to be had where
the jurors can have the best information. 7 Coke,
1.
TRIBAL LANDS. Lands of Indian reservation
which are not occupied by individual Indians and
are the unallotted or common lands of the nation.
Tuscarora Nation of Indians v. Williams, 79 Misc.
445, 141 N.Y.S. 207, 208.
Land allotted in severalty to a restricted Indian is no
longer part of the "reservation" nor is it "tribal land"
but the virtual fee is in the allottee with certain restric-
tions on the right of alienation. United States v. Okla-
homa Gas & Electric Co., C.C.A.Oki., 127 F.2d 349, 353.
TRIBUERE. Lat. In the civil law. To give; to
distribute.
TRIBUNAL. The seat of a judge; the place
where he administers justice. The whole body
of judges who compose a jurisdiction; a judicial
court; the jurisdiction which the judges exercise.
See Foster v. Worcester, 16 Pick. (Mass.) 81.
Roman Law
An elevated seat occupied by the praetor, when
he judged, or heard causes in form. Originally a
kind of stage made of wood in the form of a
square, and movable, but afterwards built of stone
in the form of a semicircle. Adams, Rom. Ant.
132, 133.
TRIBUNAUX DE COMMERCE. In French law.
Certain courts composed of a president, judges,
and substitutes, which take cognizance of all cases
between merchants, and of disagreements among
partners. Appeals lie from them to the courts of
justice. Brown.
TRIBUTARY, n. Any stream flowing directly or
indirectly into a river. [1895] 1 Q.B. 237; Bull v.
Siegrist, 169 Or. 180, 126 P.2d 832, 834.
TRIBUTARY, adj. Paying or yielding tribute,
taxed or assessed by tribute. Amsbary v. City of
Twin Falls, 34 Idaho 313, 200 P. 723, 724.
TRIBUTE. A contribution which is raised by a
prince or sovereign from his subjects to sustain
the expenses of the state.
A sum of money paid by an inferior sovereign
or state to a superior potentate, to secure the
friendship or protection of the latter. Brande.
TRICESIMA. An ancient custom in a borough
in the county of Hereford, so called because thirty
burgesses paid 1d. rent for their houses to the
bishop, who was lord of the manor. Wharton.
TRIDING—MOTE. The court held for a triding
or trithing. Cowell.
TRIDUUM. In old English law. The space of
three days. Fleta, lib. 1, c. 31, § 7.
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TRIENNIAL
TRIENNIAL ACT. An act of parliament of 1641,
which provided that if in every third year parlia-
ment was not summoned and assembled before
September 3, it should assemble on the second
Monday of the next November.
Also zn act of 1694, which provided that a par-
liament be called within three years after dissolu-
tion, and that the utmost limit of a parliament be
three years. This was followed by the Septennial
Act of 1716.
TRIENS. Lat.
In feudal law. Dower or third. 2 Bl.Comm.
129.
In Roman law. A subdivision of the as, con-
taining four uncice; the proportion of four-
twelfths or one-third. 2 Bl.Comm. 462, note m.
A copper coin of the value of one-third of the
as. Brande.
TRIGAMUS. In old English law. One who has
been thrice married; one who, at different times
and successively, has had three wives; a trigam-
ist. 3 Inst. 88.
TRIGILD. In Saxon law. A triple gild, geld, or
payment; three times the value of a thing, paid
as a composition or satisfaction. Spelman.
TRINEPOS. (Lat.) In Roman law. Great-grand-
son of a grandchild.
TRINEPTIS. (Lat.) Great-granddaughter of a
grandchild.
TRINITY HOUSE. In English law. A society at
Deptford Strond, Incorporated by Hen. VIII. in
1515, for the promotion of commerce and naviga-
tion by licensing and regulating pilots, and order-
ing and erecting beacons, light-houses, buoys, etc.
Wharton.
TRINITY MASTERS. Elder brethren of the
Trinity House. If a question arising in an ad-
miralty action depends upon technical skill and
experience in navigation, the judge or court is
usually assisted at the hearing by two Trinity
Masters, who sit as assessors, and advise the court
on questions of a nautical character. Williams
& B. Adm. Jur. 271; Sweet.
TRINITY SITTINGS. Sittings of the English
court of appeal and of the high court of justice
in London and Middlesex, commencing on the
Tuesday after Whitsun week, and terminating on
the 8th of August.
TRINITY TERM. One of the four terms of the
English courts of common law, beginning on the
22d day of May, and ending on the 12th of June.
3 Steph.Comm. 562.
TRINIUMGELDUM. In old European law. An
extraordinary kind of composition for an offense,
consisting of three times nine, or twenty-seven
times the single geld or payment. Spelman.
TRINKETS. Small articles of personal adorn-
ment or use when the object is essentially orna-
mental. 28 L.J.C.P. 626.
TRINODA NECESSITAS. Lat. In Saxon law.
A threefold necessity or burden. A term used to
denote the three things from contributing to the
performance of which no lands were exempted,
viz., pontes reparatio (the repair of bridges,) arcis
constructio, (the building of castles,) et expeditio
contra hostem, (military service against an ene-
my.) 1 Bl.Comm. 263, 357.
TRIORS. In practice. Persons who are appoint-
ed to try challenges to jurors, i. e., to hear and de-
termine whether a juror challenged for favor is
or is not qualified to serve.
The lords chosen to try a peer, when indicted
for felony, in the court of the lord high steward,
are also called "triors." Mozley & Whitley.
TRIP, n. A journey or going from one place to
another. F. S. Royster Guano Co. v. Globe &
Rutgers Fire Ins. Co., 252 N.Y. 75, 168 N.E. 834,
837.
In mining, a number of cars attached together
and drawn by a mule. Maize v. Big Creek Coal
Co., Mo.App., 203 S.W. 633, 634.
TRIP, v. To make a false step; to catch the
foot; to stumble; to cause to stumble, or take a
false step; to cause to lose the footing, as by sud-
denly checking the motion of a foot or leg; to
throw off balance. Johnston v. City of St. Louis,
Mo.App., 138 S.W.2d 666, 671.
TRIPARTITE. In conveyancing. Of three parts;
a term applied to an indenture to which there
are three several parties, (of the first, second, and
third parts,) and which is executed in triplicate.
TRIPLE ALLIANCE. A treaty between Ger-
many, Austria-Hungary and Italy, formed at the
close of the Franco-Prussian War (1870-71).
TRIPLE ENTENTE. A treaty between Russia,
France and Great Britain, formed early in the
20th century.
TRIPLICACION. L. Fr. In old pleading. A re-
joinder in pleading; the defendant's answer to
the plaintiff's replication. Britt. c. 77.
TRIPLICATIO. Lat. In the civil law. The re-
ply of the plaintiff to the rejoinder of the defend-
ant. It corresponds to the surrejoinder of com-
mon law. Inst. 4, 14; Bract. 1. 5, t. 5, c.
TRISTRIS. In old forest law. A freedom from
the duty of attending the lord of a forest when
engaged in the chase. Spelman.
TRITAVIA. Lat. In the civil law. A great-
grandmother's great-grandmother; the female as-
cendant in the sixth degree.
TRITAVUS. Lat. In the civil law. A great-
grandfather's great-grandfather; the male ascend-
ant in the sixth degree.
TRITHING. In Saxon law. One of the territori-
al divisions of England, being the third part of a
county, and comprising three or more hundreds.
Within the trithing there was a court held (called
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alleged conversion; Patten v. Denn son, 137 Me.
12. And lies onl f• wr. • • • • •
14 A.2d
s,• • • •
TRUE
"trithing-mote") which resembled the court-leet,
but was inferior to the county court.
TRITHING–MOTE. The court held for a trith-
ing or riding.
TRITHING–REEVE. The officer who superin-
tended a trithing or riding.
TRIUMVIR. Lat. In old English law. A trith-
ing man or constable of three hundred. Cowell.
TRIUMVIRI CAPITALES. Lat. In Roman law.
Officers who had charge of the prison, through
whose intervention punishments were inflicted.
They had , eight lictors to execute their orders.
Vicat, Voc.Jur.
TRIVERBIAL DAYS. In the civil law. Juridical
days; days allowed to the pr aetor for deciding
causes; days on which the praetor might speak
the three characteristic words of his office, viz.,
do, dico, addico. Calvin. Otherwise called "dies
fast~." 3 Bl.Comm. 424, and note u.
TRIVIAL. Trifling; inconsiderable; of small
worth or importance. In equity, a demurrer will
lie to a bill on the ground of the triviality of the
matter in dispute, as being below the dignity of
the court. 4 Bouv.Inst. no. 4237.
TRONAGE. In English law. A customary duty
or toll for weighing wool; so called because it
was weighed by a common trona, or beam. Fleta,
lib. 2, c. 12.
TRONATOR. A weigher of wool. Cowell.
TROOPS. Within railroad land grant acts, re-
quiring the railroads to transport free from toll
or other charge troops of the United States, and
in the land grant equalization agreements, where-
by the railroads were to transport such troops at
half rates, means soldiers collectively, a body of
soldiers, and does not include discharged soldiers
or military prisoners, rejected applicants for en-
listment returning home from recruiting depots,
accepted applicants for enlistment going to re-
cruiting depots, retired soldiers or soldiers on fur-
loughs, traveling as individuals and not as a body.
United States v. Union Pac. R. Co., 39 S.Ct. 294,
295, 249 U.S. 354, 63 L.Ed. 643; Southern Pac. Co.
v. U. S., 52 S.Ct. 324, 325, 285 U.S. 240, 76 L.Ed.
736. Or army engineers, engaged in improvement
of rivers and harbors. Southern Pac. Co. v. U. S.,
52 S.Ct. 324, 326, 285 U.S. 240, 76 L.Ed. 736.
TROPHY. Anything taken from an enemy and
shown or treasured up in proof of victory; a price
or token of victory in any contest; hence, a me-
mento of victory or success; an ornamental group
of objects hung together on a wall, or any collec-
tion of objects typical of some event, art, indus-
try, or branch of knowledge; a memento or mem-
orial. In re Vortex Cup Co., Cust. & Pat.App., 83
F.2d 821, 822.
TROPHY MONEY. Money formerly collected
and raised in London, and the several counties
of England, towards providing harness and main-
tenance for the militia, etc.
utovEur. In common-law practice, the action of
trover (or trover and conversion) is as jaecies of
action on the case, and originally lay for the re-
covery of damages against a person who had
found another's goods and wrongfully converted
them to his own use. Subsequently the allegation
of the loss of the goods by the plaintiff and the
finding of them by the defendant was merely fic-
titious, and the action became the remedy for any
wrongful interference with or detention of the
goods of another. 3 Steph.Comm. 425. Sweet.
See Burnham v. Pidcock, 33 Misc. 65, 66 N.Y.S.
806; Spellman v. Richmond & D. R. Co., 35 S.C.
475, 14 S.E. 947, 28 Am.St.Rep. 858; Daisy-Belle
Petroleum Co. v. Thomas, 151 Okl. 94, 1 P.2d 700,
702. In form a fiction; in substance, a remedy to
recover the value of personal chattels wrongfully
converted b y  another to his own use. 1 Burr. 31;
Athens & Pomeroy Coal & Land Co. v. Tracy, 22
Ohio App. 21, 153 N.E. 240, 243; Siverson v. Clan-
ton, 88 Or. 261, 170 P. 933, 935. See Conversion.
A possessory action wherein plaintiff must show that
he has either a general or special property in thin: •
41ilis 1 TiINi d 11 ossession a e ime o
chattels, or • . ro sert which is s ecific e I I h t
be den ifted. Olschewski v. u son, al.App. 282, 262
43, 46.
TROY WEIGHT. A weight of twelve ounces to
the pound, having its name from Troyes, a city in
Aube, France.
TRUCE. In international law. A suspension or
temporary cessation of hostilities by agreement
between belligerent powers;  an armistice.
Wheat. Int.Law, 442.
TRUCE OF GOD. In medieval law. A truce or
suspension of arms promulgated by the church,
putting a stop to private hostilities at certain pe-
riods or during certain sacred seasons.
TRUCK. Wheeled vehicle for carrying heavy
weight; an automobile for transporting heavy
loads. Paltani v. Sentinel Life Ins. Co., 121 Neb.
447, 237 N.W. 392.
TRUCK ACTS. Acts in England, 1 & 2 Wm. IV,
amended in 1887 and 1896, which provide that
workmen shall not have unreasonable deductions
made from their wages (as for fines, damaged
goods, materials, or tools), nor have their wages
paid otherwise than in current coin, nor be ob-
liged to spend them in any particular place or man-
ner.
r
TRUE. Conformable to fact; correct; exact;
actual; genuine; honest. See First State Bank of
Teague v. Hadden, Tex.Civ.App., 158 S.W. 1168,
1170.
In one sense, that only is "true" which is conformable
to the actual state of things. In that sense, a statement is
"untrue" which does not express things exactly as they
are. But in another and broader sense the word "true" is
often used as a synonym of "honest", "sincere", hot
"fraudulent." Zolintakis v. Equitable Life Assur. Soc. of
United States, C.C.A.Utah, 108 F.2d 902, 905; Moulor v.
American Life Ins. Co., 4 S.Ct. 466, 111 U.S. 335, 28 L.Ed.
447.
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TRUE ADMISSION
TRUE ADMISSION. A formal act done in course
of judicial proceedings which waives or dispenses
with production of evidence by conceding for pur-
poses of litigation that proposition of fact alleg-
ed by opponent is true. Maltz v. Jackoway-Katz
Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 917.
TRUE BILL. In criminal practice. The indorse-
ment made by a grand jury upon a bill of indict-
ment, when they find it sustained by the evidence
laid before them, and are satisfied of the truth
of the accusation. 4 Bl.Comm. 306.
TRUE COPY. A true copy, does not mean an ab-
solutely exact copy but means that the copy shall
be so true that anybody can understand it. It may
contain an error or omission. 51 L.J.Ch. 905.
TRUE, PUBLIC, AND NOTORIOUS. These three
qualities used to be formally predicated in the
libel in the ecclesiastical courts, of the charges
which it contained, at the end of each article sev-
erally. Wharton.
TRUE VALUE RULE. Under this rule, one who
subscribes for and receives corporate stock must
pay therefor the par value thereof either in mon-
ey or in money's worth, so that the real assets of .
the corporation shall at least square with its
books, and whenever, whether by fraud, accident
or mistake, the true value of property, labor or
services received in payment does not equal par
value, stock is deemed unpaid for to the full ex-
tent of the difference, and holders are liable to
creditors for the difference, notwithstanding good
faith of directors. Johansen v. St. Louis Union
Trust Co., 345 Mo. 135, 131 S.W.2d 599, 603.
TRUE VERDICT. The voluntary conclusion of
the jury after deliberate consideration, and it is
none the less a true verdict because the respective
jurors may have been liberal in concessions to
each other, if conscientiously and freely made.
A verdict is not a "true verdict," the result of
any arbitrary rule or order, whether imposed by
themselves, or by the court or officer in charge.
Mann v. State, 26 Ala.App. 558, 163 So. 821.
TRUNK RAILWAY. See Railway.
TRUST.
1. In General
A right of property, real or personal, held by
one party for the benefit of another. See Good-
win v. McMinn, 193 Pa. 646, 44 A. 1094, 74 Am.St.
Rep. 703; Boyce v. Mosely, 102 S.C. 361, 86 S.E.
771, 773; King v. Richardson, C.C.A.N.C., 136
F.2d 849, 856, 857. A confidence reposed in one
person, who is termed trustee, for the benefit
of another, who is called the cestui que trust,
respecting property which is held by the trustee
for the benefit of the cestui que trust. State
ex rel. Wirt v. Superior Court for Spokane
County, 10 Wash.2d 362, 116 P.2d 752, 755. Any
arrangement whereby property is transferred with
intention that it be administered by trustee for
another's benefit. Raffo v. Foltz, 106 Cal.App. 51,
288 P. 884, 886.
A fiduciary relation with respect to property,
subjecting person by whom the property is held
to equitable duties to deal with the property for
the benefit of another person which arises as the
result of a manifestation of an intention to create
it. Goodenough v. Union Guardian Trust Co., 267
N.W. 772, 773, 774, 275 Mich. 698. An obligation
on a person arising out of confidence reposed in
him to apply property faithfully and according to
such confidence; as being in nature of deposi-
tion by which proprietor transfers to another
property of subject intrusted, not that it should
remain with him, but that it should be applied to
certain uses for the behoof of third party. Mac-
Kenzie v. Union Guardian Trust Co., 262 Mich. 563,
247 N.W. 914, 919; Gurnett v. Mutual Life Ins. Co.
of New York, 356 Ill. 612, 191 N.E. 250, 252.
A "trust" can be created for any purpose which is not il-
legal, and which is not against public policy. Collins v.
Lyon, Inc., 181 Va. 230, 24 S.E.2d 572, 579.
Essential elements of "trust" are designated beneficiary
and trustee, fund sufficiently identified to enable title to
pass to trustee, and actual delivery to trustee with inten-
tion of passing title. City Bank Farmers' Trust Co. v.
Charity Organization Soc. of City of New York, 238 App.
Div. 720, 265 N.Y.S. 267.
Accessory trust. In Scotch law, equivalent to
"active" or "special" trust. See infra.
Active trust. One which imposes upon the
trustee the duty of taking active measures in the
execution of the trust, as, where property is con-
veyed to trustees with directions to sell and dis-
tribute the proceeds among creditors of the gran-
tor; distinguished from a "passive" or "dry"
trust. In re Buch's Estate, 278 Pa. 185, 122 A.
239, 240; Welch v. Northern Bank & Trust Co., 100
Wash. 349, 170 P. 1029, 1032.
Cestui que trust. The person for whose benefit
a trust is created or who is to enjoy the income
or the avails of it.
Charitable trusts. Trusts designed for the bene-
fit of a class or the public generally. They are es-
sentially different from private trusts in that the
beneficiaries are uncertain. Bauer v. Myers, C.
C.A.Kan., 244 F. 902, 911.
Complete voluntary trust. One completely cre-
ated, the subject-matter being designated, the
trustee and beneficiary being named, and the limi-
tations and trusts being fully and perfectly de-
clared. In re Leigh's Estate, 186 Iowa 931, 173
N.W. 143, 146.
Constructive trust. A trust raised by construc-
tion of law, or arising by operation of law, as dis-
tinguished from an express trust. Wherever the
circumstances of a transaction are such that the
person who takes the legal estate in property can-
not also enjoy the beneficial interest without nec-
essarily violating some established principle of eq-
uity, the court will immediately raise a construc-
tive trust, and fasten it upon the conscience of the
legal owner, so as to convert him into a trustee
for the parties who in equity are entitled to the
beneficial enjoyment. Hill, Trustees, 116; 1
Spence, Eq.Jur. 511; Nester v. Gross, 66 Minn. 371,
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69 N.W. 39; Porter v. Shaffer, 147 Va. 921, 133
S.E. 614, 616; Misamore v. Berglin, 197 Ala. 111,
72 So. 347, 349, L.R.A.1916F, 1024.
See, also, Involuntary Trust infra.
"Constructive trusts" do not arise by agreement or from
intention, but by operation of law, and fraud, active or
constructive, is their essential element. Actual fraud is
not necessary, but such a trust will arise whenever cir-
cumstances under which property was acquired made it in-
equitable that it should be retained by him who holds the
legal title.  Constructive trusts have been said to arise
through the application of the doctrine of equitable estop-
pel, or unaer the broad doctrine that equity regards and
treats as done what in good conscience ought to be done,
and such trusts are also known as "trusts ex maleficio" or
"ex delicto" or "involuntary trusts" and their forms and
varieties are practically without limit, being raised by
courts of equity whenever it becomes necessary to prevent
a failure of justice. Union Guardian Trust Co. v. Emery,
292 Mich. 394, 290 N.W. 841, 845.
Contingent trust. An express trust depending
for its operation upon a future event. Civ.Code
Ga.1910, § 3734.
Direct trust. An express trust, as distinguished
from a constructive or implied trust. Currence
v. Ward, 43 W.Va. 367, 27 S.E. 329.
Directory trust. One which is not completely
and finally settled by the instrument creating it,
but only defined in its general purpose and to be
carried into detail according to later specific di-
rections.
Dry trust. One which merely vests the legal
title in the trustee, and does not require the per-
formance of any active duty on his part to carry
out the trust. In re Shaw's Estate, 198 Cal. 352,
246 P. 48, 52; Blackburn v. Blackburn, 167 Ky.
113, 180 S.W. 48, 49.
Educational trusts. Trusts for the founding,
endowing, and supporting schools for the advance-
ment of all useful branches of learning, which are
not strictly private. Richards v. Wilson, 185 Ind.
335, 112 N.E. 780, 794.
Executed trust. A trust of which the scheme
has in the outset been completely declared. Ad-
ams, Eq. 151. A trust in which the estates and
interest in the subject-matter of the trust are com-
pletely limited and defined by the instrument creat-
ing the trust, and require no further instruments
to complete them. Bisp.Eq. 20; Pillot v. Landon,
46 N.J.Eq. 310, 19 A. 25; Egerton v. Brownlow,
4 H.L.Cas. 210; Mattsen v. U. S. Ensilage Har-
vester Co., 171 Minn. 237, 213 N.W. 893, 895.
Executory trust. One which requires the execu-
tion of some further instrument, or the doing of
some further act, on the part of the creator of
the trust or of the trustee, towards its complete
creation or full effect. Martling v. Martling, 55
N.J.Eq. 771, 39 A. 203; Carradine v. Carradine,
33 Miss. 729; In re Fair's Estate, 132 Cal. 523, 60
P. 442, 84 Am.St.Rep. 70; Pillot v. Landon, 46 N.
J.Eq. 310, 19 A. 25.
Express active trust. Where will confers upon
executor authority to generally manage property
of estate and pay over net income to devisees or
legatees, such authority creates an "express active
trust." In re Thomas' Estate, 17 Wash.2d 674, 136
P.2d 1017, 1020, 147 A.L.R. 598.
Express private passive trust has been defined as
existing where land is conveyed to or held by one
person in trust for another, without any power
being expressly or impliedly given trustee to take
actual possession of land or exercise acts of own-
ership over it, except by beneficiary's direction.
E]vins v. Seestedt, 141 Fla. 266, 193 So. 54, 57, 126
A.L.R. 1001.
Express trust. A trust created or declared in
express terms, and usually in writing, as distin-
guished from one inferred by the law from the
conduct or dealings of the parties. State v. Camp-
bell, 59 Kan. 246, 52 P. 454; Kaphan v. Toney,
Tenn.Ch., 58 S.W. 913; Sanford v. Van Pelt, 314
Mo. 175, 282 S.W. 1022, 1030; Holsapple v.
Schrontz, 65 Ind.App. 390, 117 N.E. 547, 549.
Imperfect trust. An executory trust, (which
see; ) and see Executed Trust.
Implied trust. A trust raised or created by im-
plication of law; a trust implied or presumed
from circumstances. Wilson v. Welles, 79 Minn.
53, 81 N.W. 549; Holsapple v. Schrontz, 65 Ind.
App. 390, 117 N.E. 547, 549; Springer v. Springer,
144 Md. 465, 125 A. 162, 166.
Instrumental trust. See Ministerial Trusts, in-
fra.
Involuntary trust. "Involuntary" or "construc-
tive" trusts embrace all those instances in which
a trust is raised by the doctrines of equity, for
the purpose of working out justice in the most
efficient manner, when there is no intention of
the parties to create a trust relation. This class
of trusts may usually be referred to fraud, either
actual or constructive, as an essential element.
Bank v. Kimball Milling Co., 1 S.D. 388, 47 N.W.
402, 36 Am.St.Rep. 739.
Massachusetts or business trusts. See "Trust
Estates as Business Companies."
Ministerial trusts. (Also called "instrumental.
trusts.") Those which demand no further exer-
cise of reason or understanding than every intelli-
gent agent must necessarily employ; as to con-
vey an estate. They are a species of special trusts,
distinguished from discretionary trusts, which nec-
essarily require much exercise of the understand-
ing. 2 Bouv.Inst. no. 1896.
Naked trust. A dry or passive trust; one which
requires no action on the part of the trustee, be-
yond turning over money or property to the cestui
que trust. Cerri v. Akron-People's Telephone
Co., D.C.Ohio, 219 F. 285, 292.
Passive trust. A trust as to which the trustee
has no active duty to perform. Holmes v. Walter,
118 Wis. 409, 95 N.W. 380, 62 L.R.A. 986; Dixon
v. Dixon, 123 Me. 470, 124 A. 198, 199.
Precatory trust. Where words employed in a
will or other instrument do not amount to a posi-
tive command or to a distinct testamentary dis-
Black's Law Dictionary Revised 4th Ed.-106
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position, but are terms of entreaty, request, rec-
ommendation, or expectation, they are termed
"precatory words," and from such words the law
will raise a trust, called a "precatory trust," to
carry out the wishes of the testator or grantor.
See Bohon v. Barrett, 79 Ky. 378; Hunt v. Hunt,
18 Wash. 14, 50 P. 578; Aldrich v. Aldrich, 172
Mass. 101, 51 N.E. 449.
Private trust. One established or created for
the benefit of a certain designated individual or
individuals, or a known person or class of persons,
clearly identified or capable of identification by
the terms of the instrument creating the trust; as
distinguished from trusts for public institutions
or charitable uses. See Pennoyer v. Wadhams, 20
Or. 274, 25 P. 720, 11 L.R.A. 210; Doyle v. Whalen,
87 Me. 414, 32 A. 1022, 31 L.R.A. 118; Brooks v.
Belfast, 90 Me. 318, 38 A. 222; Bauer v. Myers,
C.C.A.Kan., 244 F. 902, 911.
Proprietary trust. In Scotch law, a naked, dry,
or passive trust. See supra.
Public trust. One constituted for the benefit
either of the public at large or of some consider-
able portion of it answering a particular descrip-
tion; public trusts and charitable trusts may be
considered in general as synonymous expressions.
Lewin, Trusts, 20; Bauer v. Myers, C.C.A.Kan.,
244 F. 902, 911.
Resulting trust. One that arises by implication
of law, or by the operation and construction of
equity, and which is established as consonant to
the presumed intention of the parties as gathered
from the nature of the transaction. It arises
where the legal estate in property is disposed of,
conveyed, or transferred, but the intent appears
or is inferred from the terms of the disposition, or
from the accompanying facts and circumstances,
that the beneficial interest is not to go or be en-
joyed with the legal title. Lafkowitz v. Jackson,
C.C.A.Mo., 13 F.2d 370, 372. See Sanders v. Steele,
124 Ala. 415, 26 So. 882. Farwell v. Wilcox, 73
Okl. 230, 175 P. 936, 938, 4 A.L.R. 156; Cummings
v. Cummings, 55 Cal.App. 433, 203 P. 452, 455.
Savings bank trust. A Totten trust.
Secret trusts. Where a testator gives property
to a person, on a verbal promise by the legatee or
devisee that he will hold it in trust for another
person. Sweet.
Shifting trust. An express trust which is so
settled that it may operate in favor of beneficiar-
ies additional to, or substituted for, those first
named, upon specified contingencies. Civ.Code
Ga.1910, § 3734.
Simple trust. A simple trust corresponds with
the ancient use, and arises where property is sim-
ply vested in one person for the use of another,
and the nature of the trust, not being qualified by
the settlor, is left to the construction of law. Per-
kins v. Brinkley, 133 N.C. 154, 45 S.E. 541; Dod-
son v. Ball, 60 Pa. 500, 100 Am.Dec. 586.
Special trust. One in which a trustee is inter-
posed for the execution of some purpose particu-
larly pointed out, and is not, as in case of a simple
trust, a mere passive depositary of the estate, but
is required to exert himself actively in the execu-
tion of the settlor's intention; as, where a con-
veyance is made to trustees upon trust to recon-
vey, or to sell for the payment of debts. Lew.Tr.
3, 16.
Special trusts have been divided into (1) ministerial (or
instrumental) and (2) discretionary. The former, such as
demand no further exercise of reason or understanding
than every intelligent agent must necessarily employ ; the
latter, such as cannot be duly administered without the
application of a certain degree of prudence and judgment.
2 Bouv.Inst. no. 1896; Perkins v. Brinkley, 133 N.C. 154,
45 S.E. 541.
Spendthrift trust. See Spendthrift.
Totten trust. A trust created by the deposit
by one person of his own money in his own name
as a trustee for another and it is a tentative
trust revocable at will until the depositor dies or
completes the gift in his lifetime by some unequiv-
ocal act or declaration such as delivery of the pass
book or notice to the beneficiary and if the deposi-
tor dies before the beneficiary without revocation
or some decisive act or declaration of disaffirm-
ance the presumption arises that an absolute trust
was created as to the balance on hand at the death
of the depositor. Murray v. Brooklyn Sa y . Bank,
258 App.Div. 132, 15 N.Y.S.2d 915, 917; In re Tot-
ten, 179 N.Y. 112, 71 N.E. 748, 70 L.R.A. 711, 1 Ann.
Cas. 900.
Transgressive trust. A name sometimes ap-
plied to a trust which transgresses or violates the
rule against perpetuities. See Pulitzer v. Living-
ston, 89 Me. 359, 36 A. 635.
Trust allotments. Allotments to Indians, in
which a certificate or trust patent is issued declar-
ing that the United States will hold the land for
a designated period in trust for the allottee. U.
S. v. Bowling, 41 S.Ct. 561, 562, 256 U.S. 484, 65
L.Ed. 1054.
Trust company. A corporation formed for the
purpose of taking, accepting, and executing all
such trusts as may be lawfully committed to it,
and acting as testamentary trustee, trustee under
deeds of settlement or for married women, execu-
tor, guardian, etc. To these functions are some-
times (but not necessarily) added the business of
acting as fiscal agent for corporations, attending
to the registration and transfer of their stock and
bonds, serving as trustee for their bond or mort-
gage creditors, and transacting a general banking
and loan business. See Venner v. Farmers' L. &
T. Co., 54 App.Div. 271, 66 N.Y.Supp. 773; Mer-
cantile Nat. Bank v. New York, 7 S.Ct. 826, 121
U.S. 138, 30 L.Ed. 895; Loudoun Nat. Bank of Lees-
burg v. Continental Trust Co., 164 Va. 536, 180 S.
E. 548, 551.
Trust deed. (1) A species of mortgage given to
a trustee for the purpose of securing a numerous
class of creditors, as the bondholders of a railroad
corporation, with power to foreclose and sell on
failure of the payment of their bonds, notes, or
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other claims. (2) In some of the states, and in
the District of Columbia, a trust deed or deed of
trust is a security resembling a mortgage, being
a conveyance of lands to trustees to secure the
payment of a debt, with a power of sale upon
default, and upon a trust to apply the net proceeds
to paying the debt and to turn over the surplus
to the grantor. Dean v. Smith, 53 N.D. 123, 204
N.W. 987, 994; Guaranty Title & Trust Co. v.
Thompson, 93 Fla. 983, 113 So. 117, 120.
A "trust deed" on real estate as security for a bond is-
sue is, in effect, a mortgage on property executed by the
mortgagor to a third person as trustee to hold as security
for the mortgage debt as evidenced by the bonds, for the
benefit of the purchasers of the bonds as lenders. Marden
v. Elks Club, 138 Fla. 707, 190 So. 40, 42.
Trust deposit. Where money or property is
deposited to be kept intact and not commingled
with other funds or property of bank and is to
be returned in kind to depositor or devoted to
particular purpose or requirement of depositor or
payment of particular debts or obligations of de-
positor. Also called "special deposit". Maurello
v. Broadway Bank & Trust Co. of Paterson, 114
N.J.L. 167, 176 A. 391, 394. See, also "Deposit."
Trust estate. This term may mean either the
estate of the trustee,—that is, the legal title,—or
the estate of the beneficiary, or the corpus of
the property which is the subject of the trust. See
Cooper v. Cooper, 5 N.J.Eq. 9; Farmers' L. & T.
Co. v. Carroll, 5 Barb. (N.Y.) 643.
Trust ex delicto. Trust ex maleficio, which title
see, infra.
Trust ex maleficio. A species of constructive
trust arising out of some fraud, misconduct, or
breach of faith on the part of the person to be
charged as trustee, which renders it an equitable
necessity that a trust should be implied. See
Rogers v. Richards, 67 Kan. 706, 74 P. 255; Kent
v. Dean, 128 Ala. 600, 30 So. 543; Chanowsky v.
Friedman, Tex.Civ.App., 108 S.W.2d 752, 754. See,
also, Constructive Trust, supra.
Trust fund. A fund held by a trustee for the
specific purposes of the trust; in a more general
sense, a fund which, legally or equitably, is sub-
ject to be devoted to a particular purpose and
cannot or should not be diverted therefrom. In
this sense it is often said that the assets of a cor-
poration are a "trust fund" for the payment of its
debts. See Henderson v. Indiana Trust Co., 143
Ind. 561, 40 N.E. 516; In re Beard's Estate, 7
Wyo. 104, 50 Pac. 226, 38 L.R.A. 860, 75 Am.St.
Rep. 882; Spencer v. Smith, C.C.A.Colo., 201 F.
647, 652; Terhune v. Weise, 132 Wash. 208, 231 P.
954, 955, 38 A.L.R. 94.
Trust fund doctrine. In substance, that where
corporation transfers all its assets with a view to
going out of business and nothing is left with
which to pay debts, transferee is charged with
notice of the circumstances of the transaction, and
takes the assets subject to an equitable lien for
the unpaid debts of the transferring company;
the property of a corporation being a fund subject
to be first applied to the payment of debts. Meikle
v. Export Lumber Co., C.C.A.Or., 67 F.2d 301, 304.
Under such doctrine, if insolvent corporation's assets are
distributed among its stockholders before its debts are
paid, each stockholder is liable to creditors for full amount
received by him. Scott v. Commissioner of Internal Rev-
enue, C.C.A.8, 117 F.2d 36, 39.
Trust in invitum. A constructive trust imposed
by equity, contrary to the trustee's intention and
will, upon property in his hands. Sanford v. Ham-
ner, 115 Ala. 406, 22 So. 117.
Trust legacy. See Legacy.
Trust receipt. Document in which is expressed
security transaction, whereunder the lender hav-
ing no prior title in the goods on which the lien
is to be given, and not having possession which
remains in the borrower, lends his money to the
borrower on security of the goods, which the bor-
rower is privileged to sell clear of the lien on
agreement to pay all or part of the proceeds of
the sale to the lender. In re Boswell, C.C.A.Cal.,
96 F.2d 239, 242.
A term specifically applied to a written instru-
ment whereby banker having advanced money for
purchase of imported merchandise and having
taken title in his own name, delivers possession
to importer on agreement in writing to hold mer-
chandise in trust for banker till he is paid. Si-
mons v. Northeastern Finance Corporation, 271
Mass. 285, 171 N.E. 643, 644.
Voluntary trust. An obligation arising out of
a personal confidence reposed in, and voluntarily
accepted by, one for the benefit of another, as dis-
tinguished from an "involuntary" trust, which is
created by operation of law. Civ.Code Cal. §§
2216, 2217. According to another use of the term,
"voluntary" trusts are such as are made in favor
of a volunteer, that is, a person who gives nothing
in exchange for the trust, but receives it as a
pure gift; and in this use the term is distinguished
from "trusts for value," the latter being such as
are in favor of purchasers, mortgagees, etc. A
"voluntary trust" is an equitable gift, and in or-
der to be enforceable by the beneficiaries must be
complete. Cameron v. Cameron, 96 Okl. 98, 220 P.
889, 890; Logan v. Ryan, 68 Cal.App. 448, 229 P.
993, 996.
The difference between a "gift inter vivos" and a "vol-
untary trust" is that, in a gift, the thing itself with title
passes to the donee, while, in a voluntary trust, the actual
title passes to a cestui que trust while the legal title is
retained by the settlor, to be held by him for the purposes
of the trust or is by the settlor transferred to another to
hold for the purposes of the trust. Allen v. Hendrick, 104
Or. 202, 206 P. 733, 740.
Voting trust. See that title.
2. Constitutional and Statutory Law
An association or organization of persons or cor-
porations having the intention and power, or the
tendency, to create a monopoly, control produc-
tion, interfere with the free course of trade or
transportation, or to fix and regulate the supply
and the price of commodities.
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In the history of economic development, the "trust"
was originally a device by which several corporations en-
gaged in the same general line of business might combine
for their mutual advantage, in the direction of eliminating
destructive competition, controlling the output of their
commodity, and regulating and maintaining its price, but
at the same time preserving their separate individual
existence, and without any consolidation or merger. This
device was the erection of a central committee or board,
composed, perhaps, of the presidents or general managers
of the different corporations, and the transfer to them of a
majority of the stock in each of the corporations, to be
held "in trust" for the several stockholders so assigning
their holdings.  These stockholders received in return
"trust certificates" showing that they were entitled to re-
ceive the dividends on their assigned stock, though the
voting power of it had passed to the trustees. This last
feature enabled the trustees or committee to elect all the
directors of all the corporations, and through them the
officers, and thereby to exercise an absolutely controlling
influence over the policy and operations of each constituent
company, to the ends and with the purposes above men-
tioned. Though the "trust," in this sense, is now seldom
if ever resorted to as a form of corporate organization,
having given place to the "holding corporation" and other
devices, the word has become current in statute laws as
well as popular speech, to designate almost any form of
combination of a monopolistic character or tendency. See
Black, Const. Law (3d Ed.) p. 428; Northern Securities Co.
v. U. S., 193 U.S. 197, 24 Sup.Ct. 436, 48 L.Ed. 679; Mac-
Ginniss v. Mining Co., 29 Mont. 428, 75 P. 89; Georgia
Fruit Exchange v. Turnipseed, 9 Ala.App. 123, 62 So. 542,
546; Mallinckrodt Chemical Works v. State of Missouri, 35
S.Ct. 671, 673, 238 U.S. 41, 59 L.Ed. 1192.
In a looser sense the term "trust" is applied to
any combination of establishments in the same
line of business for securing the same ends by
holding the individual interests of each subservient
to a common authority for the common interests
of all. Mallinckrodt Chemical Works v. State of
Missouri, 35 S.Ct. 671, 673, 238 U.S. 41, 59 L.Ed.
1192.
TRUST ESTATES AS BUSINESS COMPANIES.
A practice originating in Massachusetts of vesting
a business or certain real estate in a group of
trustees, who manage it for the benefit of the
beneficial owners; the ownership of the latter is
evidenced by negotiable (or transferable) shares.
The trustees are elected by the shareholders, or, in
case of a vacancy, by the board of trustees. Pro-
vision is made in the agreement and declaration
of trust to the effect that when new trustees are
elected, the trust estate shall vest in them with-
out further conveyance. The declaration of trust
specifies the powers of the trustees. They have
a common seal; the board is organized with the
usual officers of a board of trustees; it is governed
by by-laws; the officers have the usual powers of
like corporate officers; so far as practicable, the
trustees in their collective capacity, are to carry
on the business under a specified name. The
trustees may also hold shares as beneficiaries.
Provision may be made for the alteration or
amendment of the agreement or declaration in a
specified manner. In Eliot v. Freeman, 31 Sup.Ct.
360, 220 U.S. 178, 55 L.Ed. 424, it was held that
such a trust was not within the corporation tax
provisions of the tariff act of Aug. 5, 1909. See
also Zonne v. Minneapolis Syndicate, 31 S.Ct. 361,
220 U.S. 187, 55 L.Ed. 428.
TRUSTEE. The person appointed, or required by
law, to execute a trust; one in whom an estate,
interest, or power is vested, under an express or
implied agreement to administer or exercise It
for the benefit or to the use of another called
the cestui que trust. Pioneer Mining Co. v. Ty-
berg, C.C.A.Alaska, 215 F. 501, 506, L.R.A.1915B,
442; Kaehn v. St. Paul Co-op. Ass'n, 156 Minn. 113,
194 N.W. 112; Catlett v. Hawthorne, 157 Va. 372,
161 S.E. 47, 48. Person who holds title to res
and administers it for others' benefit. Reinecke v.
Smith, Ill., 53 S.Ct. 570, 289 U.S. 172, 77 L.Ed. 1109.
In a strict sense, a "trustee" is one'who holds the legal
title to property for the benefit of another, while, in a
broad sense, the term is sometimes applied to anyone
standing In a fiduciary or confidential relation to another,
such as agent, attorney, bailee, etc. State ex rel. Lee v.
Sartorius, 344 Mo. 912, 130 S.W.2d 547, 549, 550.
"Trustee" is also used in a wide and perhaps inaccurate
sense, to denote that a person has the duty of carrying out
a transaction, in which he and another person are interest-
ed, in such manner as will be most for the benefit of the
latter, and not in such a way that he himself might be
tempted, for the sake of his personal advantage, to neg-
lect the interests of the other. In this sense, directors of
companies are said to be "trustees for the shareholders."
Sweet.
Conventional Trustee
One appointed by a decree of court to execute
a trust, as distinguished from one appointed by
the instrument creating the trust. Gilbert v. Kolb,
85 Md. 627, 37 Atl. 423.
Joint Trustees
Two or more persons who are intrusted with
property for the benefit of one or more others.
Judicial Trustee
A "judicial trustee," as distinguished from a
conventional trustee, is an officer of a chancery
court whose acts are generally limited and defined
by familiar and settled rules and procedure.
Kramme v. Mewshaw, 147 Md. 535, 128 A. 468, 472.
Public Trustee
An act of 1906 referring to England and Wales
provides for the appointment of a public trustee
to administer estates of small value, to act as
custodian trustee, or as ordinary trustee or judicial
trustee, or to administer the property of a convict
under the Forfeiture Act.
Quasi Trustee
A person who reaps a benefit from a breach of
trust, and so becomes answerable as a trustee.
Lewin, Trusts (4th Ed.) 592, 638.
Testamentary Trustee
A trustee appointed by or acting under a will;
one appointed to carry out a trust created by a
will.  The term does not ordinarily include an
executor or an administrator with the will an-
nexed, or a guardian, except when they act in the
execution of a trust created by the will and which
is separable from their functions as executors,
etc. See In re Hazard, 51 Hun, 201, 4 N.Y.Supp.
701; In re Valentine's Estate, 1 Misc. 491, 23 N.Y.
Supp. 289; In re Hawley, 104 N.Y. 250, 10 N.E. 352.
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TUNNAGE
Trustee Acts
The statutes 13 & 14 Vict. c. 60, passed in 1850,
and 15 & 16 Vict. c. 55, passed in 1852, enabling
the court of chancery, without bill filed, to appoint
new trustees in lieu of any who, on account of
death, lunacy, absence, or otherwise, are unable or
unwilling to act as such; and also to make vest-
ing orders by which legal estates and rights may
be transferred from the old trustee or trustees
to the new trustee or trustees so appointed. Moz-
ley & Whitley.
Trustee Ex Maleficio
A person who, being guilty of wrongful or
fraudulent conduct, is held by equity to the duty
and liability of a trustee, in relation to the subject-
matter, to prevent him from profiting by his own
wrong. Rice v. Braden, 243 Pa. 141, 89 A. 877,
880. Alabama Water Co. v. City of Anniston, 227
Ala. 579, 151 So. 457, 458.
Trustee in Bankruptcy
A person in whom the property of a bankrupt
is vested in trust for the creditors.
Trustee Process
The name given, in the New England states, to
the process of garnishment or foreign attachment.
Trustee Relief Acts
The statute 10 & 11 Vict. c. 96, passed in 1847,
and statute 12 & 13 Vict. c. 74, passed in 1849,
by which a trustee is enabled to pay money into
court, in cases where a difficulty arises respecting
the title to the trust fund. Mozley & Whiteley.
TRUSTER. In Scotch law. The maker or creator
of a trust.
TRUSTIS. In old European law. Trust; faith;
confidence; fidelity.
TRUSTOR. One who creates a trust. Also called
settlor. Ulmer v. Fulton, 129 Ohio St. 323, 195
N.E. 557, 564, 97 A.L.R. 1170.
TRUTH. There are three conceptions as to what
constitutes "truth": Agreement of thought and
reality; eventual verification; and consistency of
thought with itself. Memphis Telephone Co. v.
Cumberland Telephone & Telegraph Co., C.C.A.
Tenn., 231 F. 835, 842.
For "Fact" and "truth" distinguished, see Fact.
TRY. To examine judicially; to examine and
investigate a controversy, by the legal method
called "trial," for the purpose of determining the
issues it involves.
TSAR. The better, though perhaps less common
spelling of "czar" (q. v.).
TUAS RES TIBI HABETO. Lat. Have or take
your things to yourself. The form of words by
which, according to the old Roman law, a man
divorced his wife. Calvin.
TUB. In mercantile law. A measure containing
sixty pounds of tea, and from fifty-six to eighty-
six pounds of camphor. Jacob.
TUB-MAN. In English law. A barrister who
has a preaudience in the exchequer, and also one
who has a particular place in court, is so called.
Brown.
TUCIIAS. In Spanish law. Objections or ex-
ceptions to witnesses. White, New Recop. b. 3,
tit. 7, c. 10.
TUCKER ACT. The act of March 3, 1887, relat-
ing to the jurisdiction of the court of claims. Garl.
& Ralston, Fed. Pr. 413.
TUERTO. In Spanish law. Tort. Las Partidas,
pt. 7, tit. 6, 1, 5.
TUG. A steam vessel built for towing; synony-
mous with "tow-boat."
TUITION. The act or business of teaching the
various branches of learning. State ex rel. Veeder
v. State Board of Education, 97 Mont. 121, 33 P.2d
516, 522.
TULLIANUM. Lat. In Roman law. That part
of a prison which was under ground. Supposed
to be so called from Servius Tullius, who built
that part of the first prison in Rome. Adams,
Rom. Ant. 290.
TUMBREL. A castigatory, trebucket, or ducking-
stool, anciently used as a punishment for common
scolds.
TUMULTUOUS PETITIONING. Under St. 13
Car. II. St. 1, c. 5, this was a misdemeanor, and
consisted in more than twenty persons signing
any petition to the crown or either house of par-
liament for the alteration of matters established
by law in church or state, unless the contents
thereof had been approved by three justices, or
the majority of the grand jury at assizes or quar-
ter sessions. No petition could be delivered by
more than ten persons. 4 B1.Comm. 147; Mozley
& Whitley.
TUN. A measure of wine or oil, containing four
hogsheads.
TUNING. The term as used with reference to
signaling by electro-magnetic waves, or wireless
telegraphy, means the bringing of two or more
electrical circuits into resonance, or the adj.ust-
ment of capacity and inductance to secure the
time-period vibration or wave length desired. The
wave length assigned to a station might be called
its "tune." National Electric Signaling Co. v.
Telefunken Wireless Telegraph Co. of United
States, C.C.A.Pa., 208 F. 679, 695.
TUNGREVE. A town-reeve or bailiff. Cowell.
TUNNAGE. A duty in England anciently due
upon all wines imported, over and above the pris-
age and butlerage. 2 Steph.Com. 628.
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TURBA
TURBA. Lat. In the civil law. A multitude;
a crowd or mob; a tumultuous assembly of per-
sons. Said to consist of ten or fifteen, at the least.
Calvin.
TURBARY. Turbary, or common of turbary, is
the right or liberty of digging turf upon another
man's ground. Brown.
TURF AND TWIG. A piece of turf, or a twig
or a bough, were delivered by the feoffer to the
feoffee in making livery of seisin. 2 Bla.Com.
315.
TURN, or TOURN. The great court-leet of the
county, as the old county court was the court-
baron. Of this the sheriff is judge, and the court
is incident to his office; wherefore it is called
the "sheriff's tourn;" and it had its name origi-
nally from the sheriff making a turn of circuit
about his shire, and holding this court in each
respective hundred. Wharton.
TURN KEY JOB. In oil drilling industry a job
wherein driller of oil well undertakes to furnish
everything and does all work required to complete
well, place it on production, and turn it over ready
to turn the key and start oil running into tanks.
Retsal Drilling Co. v. Commissioner of Internal
Revenue, C.C.A.Tex., 127 F.2d 355, 357.
TURNED TO A RIGHT. This phrase means that
a person whose estate is divested by usurpation
cannot expel the possessor by mere entry, but
must have recourse to an action, either possessory
or droitural. Mozley & Whiteley.
TURNKEY. A person, under the superintendence
of a jailer, who has the charge of the keys of the
prison, for the purpose of opening and fastening
the doors.
TURNOUT. A short side-track on a railroad
which may be occupied by one train while another
is passing on the main track; a siding. Philadel-
phia v. R. Co., 133 Pa. 134, 19 A. 356; Indiana
Rys. & Light Co. v. City of Kokomo, 183 Ind.
543, 108 N.E. 771, 772.
TURNPIKE. A gate set across a road, to stop
travelers and carriages until toll is paid for the
privilege of passage thereon.
TURNPIKE ROADS. These are roads on which
parties have by law a right to erect gates and
bars, for the purpose of taking toll, and of re-
fusing the permission to pass along them to all
persons who refuse to pay. Northam Bridge Co.
v. London Ry. Co., 6 Mees. & W. 428. A public
highway, established by public authority for public
use, and is to be regarded as a public easement,
and not as private property. The only difference
between this and a common highway is that, in-
stead of being made at the public expense in the
first instance, it is authorized and laid out by
public authority, and made at the expense of in-
dividuals in the first instance; and the cost of
construction and maintenance is reimbursed by a
toll, levied by public authority for the purpose.
Corn. v. Wilkinson, 16 Pick. (Mass.) 175, 26 Am.
Dec. 654.
TURNTABLE DOCTRINE. Also termed attrac-
tive nuisance doctrine. This doctrine requires the
owner of premises not to attract or lure children
into unsuspected danger or great bodily harm, by
keeping thereon attractive machinery or danger-
ous instrumentalities in an exposed and unguarded
condition, and where injuries have been received
by a child so enticed the entry is not regarded as
unlawful, and does not necessarily preclude a re-
covery of damages; the attractiveness of the
machine or structure amounting to an implied
invitation to enter. Heller v. New York N. H. &
H. R. Co., C.C.A.N.Y., 265 F. 192, 194. It imposes
a liability on a property owner for injuries to a
child of tender years, resulting from something
on his premises that can be operated by such a
child and made dangerous by him, and which
is attractive to him and calculated to induce him
to use it, where he fails to protect the thing so
that a child of tender years cannot be hurt by it.
Barnhill's Adm'r v. Mt. Morgan Coal Co., D.C.
Ky., 215 F. 608, 609.
Doctrine is that who maintains or creates upon his
premises or upon the premises of another in any public
place an instrumentality or condition which may reason-
ably be expected to attract children of tender years and
to constitute a danger to them is under duty to take the
precautions that a reasonably prudent person would take
under similar circumstance, to prevent injury to such
children. Schock v. Ringling Bros. and Barnum & Bailey
Combined Shows, 5 Wash.2d 599, 105 P.2d 838, 843.
The dangerous and alluring qualities of a railroad turn-
table gave the "attractive nuisance rule" the name of
"Turntable Doctrine." Louisville & N. R. Co. v. Vaughn,
292 Ky. 120, 166 S.W.2d 43, 46.
TURPIS. Lat. In the civil law. Base; mean;
vile; disgraceful; infamous; unlawful. Applied
both to things and persons. Calvin.
TURPIS CAUSA. A base cause; a vile or im-
moral consideration; a consideration which, on
account of its immorality, is not allowed by law
to be sufficient either to support a contract or
found an action; e. g., future illicit intercourse.
TURPIS CONTRACTUS. An immoral or iniqui-
tous contract.
TURPIS EST PARS QUIE NON CONVENIT CUM
SUO TOTO. The part which does not agree with
its whole is of mean account, [entitled to small or
no consideration.] Plowd. 101; Shep. Touch. 87.
TURPITUDE. In its ordinary sense, inherent
baseness or vileness of principle or action; shame-
ful wickedness; depravity. In its legal sense,
everything done contrary to justice, honesty,
modesty, or good morals. State v. Anderson, 117
Kan. 117, 230 P. 315, 317; Hughes v. State Board
of Medical Examiners, 162 Ga. 246, 134 S.E. 42,
46. An action showing gross depravity. Traders
& General Ins. Co. v. Russell, Tex.Civ.App., 99
S.W.2d 1079, 1084.
Moral Turpitude
A term of frequent occurrence in statutes, espe-
cially those providing that a witness' conviction of
a crime involving moral turpitude may be shown
as tending to impeach his credibility. In general,
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TUTORSHIP
it means neither more nor less than "turpitude,"
i. e., anything done contrary to justice, honesty,
modesty, or good morals. In re Williams, 64 Okl.
316, 167 P. 1149, 1152; In re Humphrey, 174 Cal.
290, 163 P. 60, 62. Indeed, it is sometimes can-
didly admitted that the word "moral" in this
phrase does not add anything to the meaning of
the term other than that emphasis which may
result from a tautological expression. Hughes
v. State Board of Medical Examiners, 162 Ga. 246,
134 S.E. 42, 46. It is also commonly defined as
an act of baseness, vileness, or depravity in the
private and social duties which a man owes to his
fellow man or to society in general, contrary to
the accepted and customary rule of right and duty
between man and man. Moore v. State, 12 Ala.
App. 243, 67 So. 789, 791; United States v. Uhl,
C.C.A.N.Y., 210 F. 860, 862.
Although a vague term, it implies something immoral in
itself, regardless of its being punishable by law. Pippin
v. State, 197 Ala. 613, 73 So. 340, 342; Coykendall v.
Skrmetta, C.C.A.Ga., 22 F.2d 120; Thus excluding unin-
tentional wrong, or an improper act done without unlaw-
ful or improper intent. Drazen v. New Haven Taxicab
'Co., 95 Conn. 500, 111 A., 861, 863. It is also said to be re-
stricted to the gravest offenses, consisting of felonies, in-
famous crimes, and those that are malum in se and dis-
close a depraved mind. Bartos v. United States District
-Court for District of Nebraska, C.C.A.Neb., 19 F.2d 722,
724.
TURPITUDO. Lat. Baseness; infamy; immo-
rality; turpitude.
TUTA EST CUSTODIA QU2E SIBIMET CREDI-
TUR. Hob. 340. That guardianship is secure
which is intrusted to itself alone.
TUTELA. Lat. In the civil law. Tutelage; that
'species of guardianship which continued to the
age of puberty; the guardian being called "tutor,"
and the ward, "pupillus." 1 Dom. Civil Law, b. 2,
tit. 1, p. 260. A power given by the civil law over
a free person to defend him when by reason of
his age he is unable to defend himself. A child
under the power of his father was not subject to
tutelage, because not a free person, caput liberum.
TUTELA LEGITIMA. Legal tutelage; tutelage
created by act of law, as where none had been
created by testament. Inst. 1, 15, pr.
TUTELA TESTAMENTARIA. Testamentary tu-
telage or guardianship; that kind of tutelage
which was created by will. Calvin.
TUTELIE ACTIO. Lat. In the civil law. An ac-
tion of tutelage; an action which lay for a ward
or pupil, on the termination of tutelage, against
the tutor or guardian, to compel an account. Cal-
vin.
TUTELAGE. Guardianship; state of being under
a guardian. See Tutela.
TUTELAM REDDERE. Lat. In the civil law.
To render an account of tutelage. Calvin. Tute-
lam reposcere, to demand an account of tutelage.
TUTEUR. In French law. A kind of guardian.
TUTEUR OFFICIEUX. A person over fifty years
of age may be appointed a tutor of this sort to a
child over fifteen years of age, with the consent of
the parents of such child, or, in their default, the
conseil de famille. The duties which such a tutor
becomes subject to are analogous to those in Eng-
lish law of a person who puts himself in loco par-
entis to any one. Brown.
TUTEUR SUBROGE. The title of a second guard-
ian appointed for an infant under guardianship.
His functions are exercised in case the interests
of the infant and his principal guardian conflict.
Code Nap. 420; Brown.
TUTIUS ERRATUR EX PARTE MITIORE. 3
Inst. 220. It is safer to err on the gentler side
[or on the side of mercy].
TUTIUS SEMPER EST ERRARE ACQUIETAN-
DO, QUAM IN PUNIENDO, EX PARTE MIS-
ERICORDLE QUAM EX PARTE JUSTITIZE. It
is always safer to err in acquitting than punish-
ing, on the side of mercy than on the side of jus-
tice. Branch, Princ.; 2 Hale, P. C. 290; Broom,
Max. 326; Corn. v. York, 9 Mete. (Mass.) 116, 43
Am.Dec. 373.
TUTOR. One who teaches, usually a private in-
structor. State ex rel. Veeder v. State Board of
Education, 97 Mont. 121, 33 P.2d 516, 522.
In the civil law. This term corresponds nearly
to "guardian," (i. e., a person appointed to have
the care of the person of a minor and the adminis-
tration of his estate,) except that the guardian
of a minor who has passed a certain age is called
"curator," and has powers and duties differing
somewhat from those of a tutor. See Washington
Bank and Trust Co. v. Magee, 187 Miss. 198, 192
So. 438.
TUTOR ALIENUS. In English law. The name
given to a stranger who enters upon the lands of
an infant within the age of fourteen, and takes
the profits. He may be called to an account by the
infant and be charged as guardian in socage. Lit-
tleton, § 124; Co.Litt. 89b, 90a.
TUTOR PROPRIUS. The name given to one who
is rightly a guardian in socage, in contradistinc-
tion to a tutor alienus.
TUTORSHIP. The office and power of a tutor.
The power which an individual, sui juris, has to
take care of the person of one who is unable to
take care of himself.
There are four sorts of tutorships: Tutorship by nature;
tutorship by will; tutorship by the effect of the law; tu-
torship by the appointment of the judge. Civ.Code La. art.
247.
TUTORSHIP BY NATURE. Upon the death of ei-
ther parent, the tutorship of minor children be-
longs of right to the other. Upon divorce or judi-
cial separation from bed and board of parents, the
tutorship of each minor child belongs of right to
the parent under whose care he or she has been
placed or to whose care he or she has been en-
trusted. All those cases are called tutorship by
nature. Civ.Code La. art. 250.
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TUTORSHIP
TUTORSHIP BY WILL. The right of appointing
a tutor, whether a relation or a stranger, belongs
exclusively to the father or mother dying last.
This is called "tutorship by will," because general-
ly it is given by testament; but it may likewise be
given by any declaration by the surviving father
or mother, executed before a notary and two wit.
nesses. Civ.Code La. art. 257.
TUTRIX. A female tutor.
TWA NIGHT GEST. In Saxon law. A guest on
the second night. By the laws of Edward the Con-
fessor it was provided that a man who lodged at
an inn, or at the house of another, should be con-
sidered, on the first night of his being there, a
stranger, (uncuth;) on the second night, a guest;
on the third night, a member of the family. This
had reference to the responsibility of the host or
entertainer for offenses committed by the guest.
TWELFHINDI. The highest rank of men in the
Saxon government, who were valued at 1200s. If
any injury were done to such persons, satisfaction
was to be made according to their worth. Cowell.
TWELVE TABLES. The earliest statute or code
of Roman law, framed by a commission of ten
men, B.C. 450, upon the return of a commission of
three who had been sent abroad to study foreign
laws and institutions. The Twelve Tables consist-
ed partly of laws transcribed from the institutions
of other nations, partly of such as were altered
and accommodated to the manners of the Romans,
partly of new provisions, and mainly, perhaps,
of laws and usages under their ancient kings.
They formed the source and foundation for the
whole later development of Roman jurisprudence.
They exist now only in fragmentary form. See 1
Kent, Comm. 520. These laws were substantially
a codification, and not merely an incorporation,
of the customary law of the people. There were
Greek elements in them, but still they were es•
sentially Roman. Hunter, Rom.L. 16. See Steph-
enson, Hist.Rom.L. 120; Sohm's Inst.Rom.L.
illegal votes were cast. Johnson v. Caddell, 251
Ky. 14, 64 S.W.2d 441.
TWENTY-FOUR CALENDAR MONTHS. Two
years; a period of exactly 730 days. Carey v.
Deems, 101 N.J.L. 419, 129 A. 191, 193.
TWICE IN JEOPARDY. See Jeopardy; Once in
Jeopardy.
TWISTING. Colloquially, in insurance, the mis-
representation or misstatements of fact or incom-
plete comparison of policies to induce the insured
to give up a policy in one company for the purpose
of taking insurance in another. Brandt v. Beha,
217 App.Div. 644, 216 N.Y.S. 178, 179.
TWO ISSUE RULE. Error in charge dealing ex-
clusively with one of two or more complete and
independent issues required to be presented to jury
in civil action will be disregarded, if charge in re-
spect to another independent issue which will sup-
port verdict is free from prejudicial error, unless
it is disclosed that verdict is in fact based upon
issue to which erroneous instruction related. As-
teri v. City of Youngstown, Ohio App., 121 N.E.2d
143, 145.
TWO YEARS. A period of exactly 730 days;
identical with twenty-four calendar months. Car-
ey v. Deems, 101 N.J.L. 419, 129 A. 191, 193. Thus,
it is held that an accusation filed on March 16,
1912, and charging the commission of an offense
on March 16, 1910, was not filed "within two
years" after the commission of the offense. Mc-
Lendon v. State, 14 Ga.App. 274, 80 S.E. 692.
TWYHINDI. The lower order of Saxons, valued
at 200s. in the scale of pecuniary mulcts inflicted
for crimes. Cowell. See Twelfhindi.
TYBURN TICKET. In English law. A certifi-
cate which was given to the prosecutor of a felon
to conviction. By the 10 & 11 Will. III. c. 23, the
original proprietor or first assignee of such cer-
tificate is exempted from all parish and ward of-
fices within the parish or ward where the felony
was committed. Bacon, Abr. Constable (C).
TWELVE-DAY WRIT. A writ issued under the
St. 18 & 19 Vict. c. 67, for summary procedure on TYHTLAN. :n Saxon law. An accusation, im-
bills of exchange and promissory notes, abolished peachment, or charge of any offense.
by rule of court in 1880. Wharton. TYING. A term which, as used in a contract of
lease of patented machinery means that the les-
TWELVEMONTH. This term (in the singular see has secured only limited rights of use, andnumber), includes all the year; but twelve months that if he exceeds such limited rights by agreeingare to be computed according to twenty-eight days not to use the machines of others he may lose his
for every month. 6 Coke, 62. lease. United States v. United Shoe Machinery
""Twelve-month Co. of New Jersey, D.C.Mass., 222 F. 349, 388, 394.TWELVE-MONTH BOND. Twelve-month bond,
under statute effective Jan. 20, 1837 (Hartley's TYING WIRE. In concrete construction, No. 16
Dig. art. 1277), had a double character, first as an black fencing wire used to fasten the steel togeth-
obligation known to the Spanish civil law, and sec- er. Soule v. Northern Const. Co., 33 Cal.App. 300,
ond, as a summary statutory judgment, with the 165 P. 21, 22.
force and effect of any other judgment of a court TYLWITH. Brit. A tribe or family branching or
of competent jurisdiction; it being also a consent issuing out of another. Cowell.
judgment. Clements v. Texas Co., Tex.Civ.App.,
273 S.W. 993, 1001. TYMBRELLA. In old English law, a tumbrel,
castigatory, or ducking stool, anciently used as
TWENTY PER CENT RULE. In election con- an instrument of punishment for common scolds.
tests is that votes of entire precinct will be thrown
out when such large proportion of votes cast was TYPEWRITING. The process of printing letter
illegal, and it is impossible to determine for whom by letter by the use of a typewriter, Acme Coal
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U. B.
U
U. B. An abbreviation for "Upper Bench."
U. C. An abbreviation for "Upper Canada," used
in citing the reports.
U. R. Initials of "uti rogas," be it as you desire,
a ballot thus inscribed, by which the Romans vot-
ed in favor of a bill or candidate. Tayl.Civil Law,
191.
U. S. An abbreviation for "United States."
U. S. E. S. United States Employment Service.
UBERRIMA FIDES. Lat. The most abundant
good faith; absolute and perfect candor or open-
ness and honesty; the absence of any conceal-
ment or deception, however slight. A phrase used
to express the perfect good faith, concealing noth-
ing, with which a contract must be made; for
example, in the case of insurance, the insured
must observe the most perfect good faith towards
the insurer. 1 Story, Eq.Jur. § 317.
Contracts of life insurance are said to be "uberrimeT
ficlm" when any material misrepresentation or concealment
is fatal to them. Equitable Life Assur. Soc. v. McElroy, 28
C.C.A. 365, 83 F. 631, 636.
UBI ALIQUID CONCEDITUR, CONCEDITUR ET
ID SINE QUO RES IPSA ESSE NON POTEST.
When anything is granted, that also is granted
without which the thing granted cannot exist.
Broom, Max. 483; 13 Mees. & W. 706.
UBI ALIQUID IMPEDITUR PROPTER UNU1VI,
EO REMOTO, TOLLITUR IMPEDIMENTUM.
Where anything is impeded by one single cause, if
that be removed, the impediment is removed.
Branch, Princ., citing 5 Coke, 77a.
UBI CESSAT REMEDIUM ORDINARIUM, IBI
DECURRITUR AD EXTRAORDINARIUM.
Where the ordinary remedy fails, recourse must
be had to an extraordinary one. 4 Coke, 92b.
UBI CULPA EST, IBI P(ENA SUBESSE DEBET.
Where the crime is committed, there ought the
punishment to be undergone. Jenk.Cent. 325.
UBI DAMNA DANTUR, VICTUS VICTORI IN
EXPENSIS CONDEMNARI DEBET. Where
damages are given, the vanquished party ought
to be condemned in costs to the victor. 2 Inst.
289; 3 Sharsw. Bla. Comm. 399.
UBI EADEM RATIO, IBI EADEM LEX; ET DE
SIMILIBUS IDEM EST JUDICIUM. 7 Coke, 18.
Where the same reason exists, there the same law
prevails; and, of things similar, the judgment is
similar. Where there is the same reason, there
Is the same law, and the same judgment should
be rendered on the same state of facts. Broom,
Max. 103, n. 153, 155.
UBI EST FORUM, IBI ERGO EST JUS. The law
of the forum governs. 31 Law Mag. & Rev. 471.
UBI EST SPECIALIS, ET RATIO GENERALIS
GENERALITER ACCIPIENDA EST. See Ubi lex
est specialis t etc.
UBI ET DANTIS ET ACCIPIENTIS TURPITUDO
VERSATUR, NON POSSE REPETI DICIMUS;
QUOTIENS AUTEM ACCIPIENTIS TURPITUDO
VERSATUR, REPETI POSSE. Where there is
turpitude on the part of both giver and receiver,
we say it cannot be recovered back; but as often
as the turpitude is on the side of the receiver
[alone] it can be recovered back. Mason v. Waite,
17 Mass. 562.
UBI FACTUM NULLUM, IBI FORTIA NULLA.
Where there is no principal fact, there can be no
accessory. 4 Coke, 426. Where there is no act,
there can be no force.
UBI JUS, IBI REMEDIUM. Where there is a
right, there is a remedy. Broom, Max. 191, 204;
1 Term R. 512; Co.Litt. 197b; 7 Gray (Mass.)
197; Henry v. Cherry & Webb, 73 A. 97, 101, 30
R.I. 13, 24 L.R.A. 991, 136 Am.St.Rep. 928, 18 Ann.
Cas. 1006. It is said that the rule of primitive
law was the reverse: Where there is a remedy,
there is a right. Salmond, Jurispr. 645.
UBI JUS INCERTUM, IBI JUS NULLUM. Where
the law is uncertain, there is no law.
UBI LEX ALIQUEM COGIT OSTENDERE CADS-
AM, NpCESSE EST QUOD CAUSA SIT JUSTA
ET LEGITIMA. Where the law compels a man
to show cause, it is necessary that the cause be
just and lawful. 2 Inst. 289.
UBI LEX EST SPECIALIS, ET RATIO EJUS
GENERALIS, GENERALITER ACCIPIENDA
EST. 2 Inst. 43. Where the law is special, and
the reason of it general, it ought to be taken as
being general. When the reason for a particular
legislative act and acts of the same general char-
acter is the same, they should have the same ef-
fect. Guile v. La Crosse Gas & Electric Co., 145
Wis. 157, 130 N.W. 234, 241.
UBI LEX NON DISTINGUIT, NEC NOS DIS-
TINGUERE DEBEMUS. Where the law does not
distinguish, neither ought we to distinguish. 7
Coke; 5b.
UBI MAJOR PARS EST, IBI TOTUM. Where the
greater part is, there the whole is. That is, ma-
jorities govern. Moore, 578.
UBI MATRIMONIUM, IBI DOS. Where there is
marriage, there is dower. Bract. 92.
UBI NON ADEST NORMA LEGIS, OMNIA QUA-
SI PRO SUSPECTIS HABENDA SUNT. When
the law fails to serve as a rule, almost everything
ought to be suspected. Bac. Aphorisms, 25.
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ULTIMATE
UBI NON EST ANNUA RENOVATIO, IBI DECI-
M NON DEBENT SOLVI. Where there is no
annual renovation, there tithes ought not to be
paid.
UBI NON EST CONDENDI AUCTORITAS, IBI
NON EST PARENDI NECESSITAS. Da y . Ir. K.
B. 69. Where there is no authority for establish-
ing a rule, there is no necessity of obeying it.
UBI NON EST DIRECTA LEX, STANDUM EST
ARBITRIO JUDICIS, VEL PROCEDENDUM AD
SIMILIA. Ellesm. Post. N. 41. Where there is no
direct law, the opinion of the judge is to be taken,
or references to be made to similar cases.
UBI NON EST LEX, IBI NON EST TRANSGRESS
SIO, QUOAD MUNDUM. Where there is no law,
there is no transgression, so far as relates to the
world. 4 Coke, 16b.
UBI NON EST MANIFESTA INJUSTITIA, JUDI-
CES HABENTUR PRO BONIS VIRIS, ET JUDI-
CATUM PRO VERITATE. Where there is no
manifest injustice, the judges are to be regarded
as honest men, and their judgment as truth. Goix
v. Low, 1 Johns. Cas. (N.Y.) 341, 345.
UBI NON EST PRINCIPALIS, NON POTEST
ESSE ACCESSORIUS. 4 Coke, 43. Where there
is no principal, there cannot be an accessory.
LB! NULLA EST CONJECTURA QUIE DUCAT
ALIO, VERBA INTELLIGENDA SUNT EX PRO-
PRIETATE, NON GRAMMATICA, SED POPUL-
AR! EX USU. Where there is nothing to call for
a different construction, [the] words [of an in-
strument] are to be understood, not according to
their strict grammatical meaning, but according
to their popular and ordinary sense. Grot. de Jure
B. lib. 2, c. 16.
UBI NULLUM MATRIMONIUM, IBI NULLA
DOS. Where there is no marriage, there is no
dower. Bract. fol. 92; 2 Bl.Comm. 130; Co.Litt.
32a.
UBI PERICULUM, IBI ET LUCRUM COLLOCA-
TUR. He at whose risk a thing is, should receive
the profits arising from it.
UBI PUGNANTIA INTER SE IN TESTAMENTO
JUBERENTUR, NEUTRUM RATUM EST. Where
repugnant or inconsistent directions are contained
in a will, neither is valid. Dig. 50, 17, 188, pr.
UBI QUID GENERALITER CONCEDITUR IN-
EST HIEC EXCEPTIO, SI NON ALIQUID SIT
CONTRA JUS FASQUE. 10 Coke, 78. Where a
thing is conceded generally [or granted in general
terms], this exception is implied: that there shall
be nothing contrary to law and right.
UBI QUIS DELINQUIT, IBI PUNIETUR. Where
a man offends, there he shall be punished. In cas-
es of felony, the trial shall be always by the com-
mon law in the same place where the offense
was, and shall not be supposed in any other place.
6 Coke 47b
UBI RE VERA. Where in reality; when in truth
or in point of fact. Cro. Eliz. 645; Cro. Jac. 4.
UBI SUPRA. Lat. Where above mentioned.
Webster, Dict.
UBI VERBA CONJUNCTA NON SUNT SUFFI-
CIT ALTERUTRUM ESSE FACTUM. Dig. 50, 17,
110, 3. Where words are not conjoined, it is
enough if one or other be complied with. Where
words are used disjunctively, it is sufficient that
either one of the things enumerated be performed.
UBICUNQUE EST INJURIA, IBI DAMNUM SE-
QUITUR. Wherever there is a wrong, there dam-
age follows. 10 Co. 116.
UBIQUITY. Omnipresence; presence in several
places, or in all places, at one time. A fiction
of English law is the "legal ubiquity" of the sov-
ereign, by which he is constructively present in
all the courts. 1 Bl.Comm. 270.
UDAL. A term mentioned by Blackstone as used
in Finland to denote that kind of right in real
property which is called, in English law, "allodial."
2 Bl.Comm. 45, note f.
UFFER. See Huisserium.
UKAAS, UKASE. Originally, a law or ordinance
made by the czar of Russia.
Hence, any official decree or proclamation.
Webster, Diet.
ULLAGE. In commercial law. The amount
wanting when a cask, on being gauged, is found
not to be completely full.
ULNA FERREA. L.Lat. In old English law.
The iron ell; the standard ell of iron, kept in the
exchequer for the rule of measure.
ULNAGE. Alnage. See Alnager.
ULTERIOR. Beyond what is manifest, seen or
avowed, intentionally kept concealed. Harding v.
McCullough, 236 Iowa 556, 19 N.W.2d 613, 616.
ULTIMA RATIO. Lat. The last argument; the
last resort; the means last to be resorted to.
ULTIMA VOLUNTAS TESTATORIS EST PER-
IMPLENDA SECUNDUM VERAM INTENTION-
EM SUAM. The last will of a testator is to be
fulfilled according to his true intention. Co.Litt.
322; Broom, Max. 566.
ULTIMATE. At last, finally, or at the end; the
last in the train of progression or sequence tend-
ed toward by all that precedes; arrived at as the
last result; final. Texas Employers Ins. Ass'n v.
Reed, Tex.Civ.App., 150 S.W.2d 858, 862.
ULTIMATE FACTS. In practice and pleading.
Averments in pleadings. Oliver v. Coffman, 113
Ind.App. 507, 45 N.E.2d 351, 354, 355; Issuable
facts. Maxwell Steel Vault Co. v. National Cas-
ket Co., D.C.N.Y., 205 F. 515, 524. Facts essential
to the right of action or matter of defense. Wi-
chita Falls & Oklahoma Ry. Co. v. Pepper, 134
Tex. 360, 135 S.W.2d 79, 84. Facts necessary and
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ULTIMATE
essential for decision by court. People ex rel.
Hudson & M. R. Co. v. Sexton, Sup., 44 N.Y.S.2d
884, 885. Those facts which it is expected evi-
dence will support. McDuffle v. California Te-
hama Land Corporation, 138 Cal.App. 245, 32 P.2d
385, 386. The issuable, constitutive, or traversa-
ble facts essential to statement of cause of action.
Johnson v. Johnson, 92 Mont. 512, 15 P.2d 842, 844.
The logical conclusions deduced from certain pri-
mary evidentiary facts. Mining Securities Co. v.
Wall, 99 Mont. 596, 45 P.2d 302, 306.
Those facts found in that vaguely defined field
lying between evidential facts on the one side
and the primary issue or conclusion of law on the
other, being but the logical results of the proofs,
or, in other words, mere conclusions of fact.
Christmas v. Cowden, 44 N.M. 517, 105 P.2d 484,
487.
The final or resulting fact reached by processes of logical
reasoning from the detached or successive facts in evi-
dence, and which is fundamental and determinative of the
whole case. Levins v. Rovegno, 71 Cal. 273, 12 P. 161;
Kahn v. Central Smelting Co., 2 Utah, 371; Caywood v.
Farrell, 175 Ill. 480, 51 N.E. 775; Maeder Steel Products
Co. v. Zanello, 109 Or. 562, 220 P. 155, 159. The final re-
sulting effect reached by processes of legal reasoning from
the evidentiary facts. Oregon Home Builders v. Montgom-
ery Inv. Co., 94 Or. 349, 184 P. 487, 489. See, also, Ulti-
mate Facts.
ULTIMATUM. Lat. The last. The final and ul-
timate proposition made in negotiating a treaty,
a contract, or the like. The word also means the
result of a negotiation, and it comprises the final
determination of a party concerned in the matter
in dispute.
ULTIMUM SUPPLICIUM. Lat. The last or ex-
treme punishment; the extremity of punishment;
the punishment of death. 4 Bl.Comm. 17.
ULTIMUM SUPPLICIUM ESSE MORTEM SOL-
AM INTERPRETAMUR. The extremest punish-
ment we consider to be death alone. Dig. 48, 19,
21.
ULTIMUS HIERES. Lat. The last or remote
heir; the lord. So called in contradistinction to
the hceres proximus and the hceres remotior.
Dalr. Feud. Prop. 110.
ULTRA. Lat. Beyond; outside of; in excess of.
Damages Ultra
Damages beyond a sum paid into court.
Ultra Mare
Beyond sea. One of the old essoins or excuses
for not appearing in court at the return of pro-
cess. Bract. fol. 338.
Ultra Reprises
After deduction of drawbacks; in excess of de-
ductions or expenses.
Ultra Vires
The modern technical designation, in the law of
corporations, of acts beyond the scope of the pow-
ers of a corporation, as defined by its charter or
act of incorporation. State ex rel. v. Holston
Trust Co., 168 Tenn. 546, 79 S.W.2d 1012, 1016.
The term has a broad. application and includes not
only acts prohibited by the charter, but acts
which are in excess of powers granted and not
prohibited. State ex rel. Supreme Temple of Py-
thian Sisters v. Cook, 234 Mo.App. 898, 136 S.W.2d
142, 146, and generally applied either when a cor-
poration has no power whatever to do an act, or
when the corporation has the power but exercises
it irregularly. People ex rel. Barrett v. Bank of
Peoria, 295 Ill.App. 543, 15 N.E.2d 333, 335. Act
is "ultra vires" when corporation is without au-
thority to perform it under any circumstances or
for any purpose. Orlando Orange Groves Co. v.
Hale, 107 Fla. 304, 144 So. 674, 676.
By doctrine of "ultra vires" a contract made by a cor-
poration beyond the scope of its corporate powers is un-
lawful. Community Federal Sa y . & Loan Ass'n of Inde-
pendence, Mo., v. Fields, C.C.A.Mo., 128 F.2d 705, 708.
While the phrase "ultra vires" has been used to desig-
nate, not only acts beyond the express and implied powers
of a corporation, but also acts contrary to public policy or
contrary to some express statute prohibiting them, the
latter class of acts is now termed illegal, and the "ultra
vires" confined to the former class. In re Grand Union
Co., C.C.A.N.Y., 219 F. 353, 363; Staacke v. Routledge, 111
Tex. 489, 241 S.W. 994, 998; Pennsylvania H. Co. v. Minis,
120 Md. 461, 496, 87 A. 1062, 1072.
ULTRA POSSE NON POTEST ESSE, ET VICE
VERSA. What is beyond possibility cannot exist,
and the reverse, [what cannot exist is not possi-
ble.] Wing. Max. 100.
ULTRONEOUS WITNESS. In Scotch law. A.
volunteer witness; one who appears to give evi-
dence without being called upon. 2 Alis.Crim.Pr.
393.
UMPIRAGE. The decision of an umpire. Powell
v. Ford, 4 Lea (Tenn.) 288. The word "Umpir-
age," in reference to an umpire, is the same as
the word "award," in reference to arbitrators; but
"award" is commonly applied to the decision of
the umpire also.
UMPIRE. One clothed with authority to act alone
in rendering a decision where arbitrators have dis-
agreed. Hughes v. National Fuel Co., 121 W.Va.
392, 3 S.E.2d 621, 626.
When matters in dispute are submitted to two or more
arbitrators, and they do not agree in their decision, it is
usual for another person to be called in as "umpire," to
whose sole judgment it is then referred. Brown. And see
Ingraham v. Whitmore, 75 Ill. 30; Tyler v. Webb, 10 B.
Mon. (Ky.) 123; Lyon v. Blossom, 4 Duer (N.Y.) 325. An
"umpire," strictly speaking, makes his award independent-
ly of that of the arbitrators. Dennis v. Standard Fire Ins.
Co., 90 N.J.Eq. 419, 107 A. 161, 163.
UN-. A prefix used indiscriminately, and may
mean simply "not." Thus, "unlawful" means "not
authorized by law." State v. Sanders, 136 La.
1059, 68 So. 125, 126, Ann.Cas.1916E, 105.
UN NE DOLT PRISE ADVANTAGE DE SON
TORT DEMESNE. 2 And. 38, 40. One ought
not to take advantage of his own wrong.
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UNAVOIDABLE
UNA PERSONA VIX POTEST SUPPLERE VIC-
ES DUARUM. 7 Coke, 118. One person can
scarcely supply the place of two. See 9 H.L.Cas.
274.
UNA VOCE. Lat. With one voice; unanimous-
ly; without dissent.
UNABLE. This term, as used in a statute pro-
viding that evidence given in a former trial may
be proved in a subsequent trial, where the witness
is unable to testify, means mentally and physical-
ly unable. Hansen-Rynning v. Oregon-Washing-
ton R. & Na y . Co., 105 Or. 67, 209 P. 462, 464.
UNACCRUED. Not become due, as rent on a
lease. Elms Realty Co. v. Wood, 285 Mo. 130,
225 S.W. 1002, 1005.
UNADJUSTED. Uncertain; not agreed upon.
Richardson v. Woodbury, 43 Me. 214.
UNALIENABLE. Inalienable; incapable of be-
ing aliened, that is, sold and transferred.
UNAMBIGUOUS. Susceptible of but one mean-
ing. Lawrie v. Miller, Tex.Com.App., 45 S.W.2d
172, 173.
UNANIMITY. Agreement of all the persons con-
cerned, in holding one and the same opinion or
determination of any matter or question; as the
concurrence of a jury in deciding upon their ver-
dict. See Unanimous.
UNANIMOUS. To say that a proposition was
adopted by a "unanimous" vote does not always
mean that every one present voted for the proposi-
tion, but it may, and generally does, mean, when a
viva voce vote is taken, that no one voted in the
negative. State v. Stephens, 195 Mo.App. 34, 189
S.W. 630, 631.
UNASCERTAINED. Not certainly known or de-
termined. Commissioner of Internal Revenue v.
Owens, C.C.A.10, 78 F.2d 768, 773.
UNASCERTAINED DUTIES. Payment in gross,
on an estimate as to amount, and where the mer-
chant, on a final liquidation, will be entitled by
law to allowances or deductions which do not de-
pend on the rate of duty charged, but on the as-
certainment of the quantity of the article subject
to duty. Moke v. Barney, 5 Blatchf. 274, Fed.
Cas.No.9,698.
UNAVOIDABLE. Not avoidable, incapable of be-
ing shunned or prevented, inevitable, and neces-
sary. Day Wood Heel Co. v. Rover, 123 Ohio St.
349, 175 N.E. 588, 590.
UNAVOIDABLE ACCIDENT. An inevitable ac-
cident. Leland v. Empire Engineering Co., 135
Md. 208, 108 A. 570, 575, which could not have
been foreseen and prevented by using ordinary
diligence, and resulting without fault. U. S. v.
Kansas City Southern Ry. Co., D.C.Ark., 189 F.
471. Not necessarily an accident which it was
physically impossible, in the nature of things, for
the person to have prevented, but one not occa-
sioned in any degree, either remotely or directly,
by the want of such care or skill as the law holds
every man bound to exercise. An accident which
could not be prevented by the exercise of ordinary
care and prudence. Wollaston v. Stiltz, 114 A.
198, 200, 1 W.W.Harr.  273; Atlantic Coast
Line R. Co. v. Cook, 34 Ga.App. 1, 128 S.E. 75, 76.
A casualty which occurs without negligence of
either party and when all means which common
prudence suggests have been used to prevent it.
Bucktrot v. Partridge, 130 Okl. 122, 265 P. 768, 771.
The term is sometimes defined, however, as synonymous
with "act of God,"-any accident produced by physical
causes which are inevitable, such as lightnings, storms,
perils of the sea, earthquakes, inundations, sudden death,
or illness. Early v. Hampton, 15 Ga.App. 95, 82 S.E. 669,
671.
UNAVOIDABLE CASUALTY. An event or acci-
dent which human prudence, foresight, and sa-
gacity cannot prevent, happening against will and
without negligence. Fernwood Mining Co. v.
Pluma, 211 S.W. 159, 163, 138 Ark. 193; Sabin v.
Sunset Garden Co., 184 Okl. 106, 85 P.2d 294, 295.
Welles v. Castles, 3 Gray (Mass.) 325. Within the
meaning of statutes in several states relating to
the vacation of judgments, means some casualty
or misfortune growing out of conditions or cir-
cumstances that prevented the party or his at-
torney from doing something that, except there-
for, would have been done, and does not include
mistakes or errors of judgment growing out of
misconstruction or understanding of the law, or
the failure of parties or counsel through mistake
to avail themselves of remedies, which if resorted
to would have prevented th' casualty or misfor-
tune.
If by any care, prudence, or foresight a thing could have
been guarded against, it is not unavoidable. Central Line
of Boats v. Lowe. 50 Ga. 509; E. P. Barnes & Bro. v.
Eastin, 190 Ky. 392, 227 S.W. 578, 580. The term is not
ordinarily limited to an act of God. Kirby v. Davis, 21(1
Ala. 192, 97 So. 655, 656.
The term refers to events which human prudence or fore-
sight cannot prevent (but see Kohlman v. Moore, 175 Ky.
710, 194 S.W. 933, 935), such as disease and death, mis-
carriage of the mails, or mistake in the wording of a
telegram. Wagner v. Lucas, 79 Okl. 231, 193 P. 421, 422.
It may include the sickness. Thweatt v. Grand Temple
and Tabernacle of International Order of Twelve Knights
and Daughters of Tabor, of Arkansas, 128 Ark. 269, 193 S.
W. 508, 509, or death of an attorney, Columbia County
v. England, 151 Ark. 465, 236 S.W. 625, 626, or his failure,
through some oversight or misunderstanding, to defend.
Krause v. Hobart, 173 Iowa, 330, 155 N.W. 279, but it does
not apply to the neglect of an attorney or his client;
Gavin v. Heath, 125 Okl. 118, 256 P. 745, 746; McGuire v.
Mishawaka Woolen Mills, 218 Ky. 530, 291 S.W. 747, 749.
UNAVOIDABLE CAUSE. A cause which reason-
ably prudent and careful men under like circum-
stances do not and would not ordinarily anticipate,
and whose effects, under similar circumstances,
they do not and would not ordinarily avoid. Chi-
cago, B. & Q. R. Co. v. U. S., 114 C.C.A. 334, 194
F. 342.
UNAVOIDABLE DANGERS. This term in a ma-
rine policy covering unavoidable dangers of the
river includes the unexplained capsizing of a ves-
sel, though human intervention existed in the op-
eration of the vessel, for "unavoidable dangers"
mean those unpreventable by persons operating
the vessel, and, like the term perils of the sea,
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UNBOLTED
.,include ail kinds of marine casualties, thus includ-
ing accidents in which there is human interven-
tion. A river vessel's tendency to turn over, due
to topheavy construction, necessary on account of
the shallowness of rivers, is an "unavoidable dan-
ger" within the policy. Hillman Transp. Co. v.
Home Ins. Co. of New York, 268 Pa. 547, 112 A.
108, 111.
UNBOLTED CORN MEAL. The courts judicially
know that corn meal is an unmixed meal made
from entire grains of corn, and that "unbolted
corn meal" is simply meal not bolted, or from
which the bran has not been sifted or separated.
Miller Grain & Commission Co. v. International
Sugar Feed No. 2 Co., 197 Ala. 100, 72 So. 368.
UNBROKEN. Continuous, as adverse possession.
Panhandle & S. F. Ry. Co. v. Hoffman, Tex.Civ.
App., 250 S.W. 246, 248.
UNCEASESATH. In Saxon law. An oath by re-
lations not to avenge a relation's death. Blount.
UNCERTAINTY. The state or quality of being
unknown or vague. Such vagueness, obscurity, or
confusion in any written instrument, e. g., a will,
as to render it unintelligible to those who are
called upon to execute or interpret it, so that no
definite meaning can be extracted from it.
UNCHASTITY. Impurity in mind and conduct,
which may exist without actually engaging in un-
lawful sexual intercourse. State v. Valvoda, 170
Iowa 102, 152 N.W. 21, 23; Cooper v. State, 15
Ala.App. 657, 74 So. 753, 754.
UNCIA, Lat. In Roman law. An ounce; the
twelfth of the Roman "as," or pound. The twelfth
part of anything; the proportion of one-twelfth.
2 Bl. Comm. 462, note m.
UNCIA AGRI, UNCIA TERRIE. These phrases
often occur in the charters of the British kings,
and signify some measure or quantity of land.
It is said to have been the quantity of twelve
modii; each modius being possibly one hundred
feet square. Jacob; Mon. Ang. tom. 3, pp. 198,
205.
UNCIARIUS H!ERES. Lat. In Roman law. An
heir to one-twelfth of an estate or inheritance.
Calvin.
UNCLE. The brother of one's father or mother.
State v. Reedy, 44 Kan. 190, 24 P. 66; State v.
Guiton, 51 La.Ann. 155, 24 So. 784; Capps v. State,
87 Fla. 388, 100 So. 172, 173.
UNCLEAN HANDS PRINCIPLE. Principle that
one who has unclean hands is not entitled to re-
lief in equity. Van Antwerp v. Van Antwerp, 242
Ala. 92, 5 So.2d 73, 78, 79, 80. The doctrine has
no application unless party's wrongdoing has some
proximate relation to the subject matter in con-
troversy. Fritz v. Jungbluth, 141 Neb. 770, 4 N.W.
2d 911, 913, 914. Vercesi v. Petri, 334 Pa. 385, 5 A.
2d 563, 565.
UNCONDITIONAL. Not limited or affected by
any condition;-applied especially to the quality
of an insured's estate in the property insured.
Libby Lumber Co. v. Pacific States Fire Ins. Co.,
79 Mont. 166, 255 P. 340, 344, 60 A.L.R. 1; Roches-
ter German Ins. Co. v. Schmidt, 89 C.C.A. 333, 162
F. 447. See the subtitle "Sole and unconditional
owner" under the main title Owner.
UNCONSCIONABLE BARGAIN. All unconscion-
able bargain or contract is one which no man in
his senses, not under delusion, would make, on the
one hand, and which no fair and honest man would
accept, on the other. Hume v. U. S., 10 S.Ct. 134,
132 U.S. 406, 33 L.Ed. 393; Edler v. Frazier, 174
Iowa 46, 156 N.W. 182, 187; Hall v. Wingate, 159
Ga. 630, 126 S.E. 796, 813; 2 Ves. 125; 4 Bouv.
Inst. n. 3848.
UNCONSCIONABLE CONDUCT. Conduct that
is monstrously harsh and shocking to the con-
science. Domus Realty Corporation v. 3440 Realty
Co., 179 Misc. 749, 40 N.Y.S.2d 69, 73.
UNCONSCIOUS. Not possessed of mind. Wilson
v. Ray, 64 Ga.App. 540, 13 S.E.2d 848, 852.
UNCONSTITUTIONAL. That which is contrary
to the constitution. The opposite of "constitu-
tional." See State v. McCann, 4 Lea (Tenn.) 10;
In re Rahrer, C.C.Kan., 43 F. 558, 10 L.R.A. 444;
Norton v. Shelby County, 6 S.Ct. 1121, 118 U.S.
425, 30 L.Ed. 178. The word does not necessarily
mean that the act assailed is contrary to sound
principles of legislation. Ketterer v. Lederer, D.
C.Pa., 269 F. 153, 154.
This word is used in two different senses. One, which
may be called the English sense, is that the legislation
conflicts with some recognized general principle. This is
no more than to say that it is unwise, or is based upon a
wrong or unsound principle, or conflicts with a generally
accepted policy. The other, which may be called the Amer-
ican sense, is that the legislation conflicts with some pro-
vision of our written Constitution, which it is beyond the
power of the Legislature to change. U. S. v. American
Brewing Co., D.C.Pa., 1 F.2d 1001, 1002.
This expression as applied to an act of parliament means
simply that it is, in the opinion of the speaker, opposed
to the spirit of the English constitution; it cannot mean
that the act is either a breach of the law or is void. When
applied to a law passed by the French parliament, it
means that the law is opposed to the articles of the consti-
tution; it does not necessarily mean that the law in ques-
tion is void, for it is by no means certain that any French
court will refuse to enforce a law because it is unconstitu-
tional. It would probably, though not of necessity, be,
when employed by a Frenchman, a term of censure. Dic-
ey, Const. 516.
UNCONTROLLABLE. Incapable of being con-
trolled or ungovernable. Alford v. Zeigler, 65 Ga.
App. 294, 16 S.E.2d 69, 72.
UNCONTROLLABLE IMPULSE. As an excuse
for the commission of an act otherwise criminal,
this term means an impulse towards its commis-
sion of such fixity and intensity that it cannot be
resisted by the person subject to it, in the enfeeb-
led condition of his will and moral sense resulting
from derangement or mania. See Insanity. And
see State v. O'Neil, 51 Kan. 651, 33 P. 287, 24 L.R.A.
555.
UNCORE PRIST. L. Fr. Still ready. A species
of plea or replication by which the party alleges
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that he is still ready to pay or perform all that
is justly demanded of him. In conjunction with
the phrase "tout temps prist," it signifies that he
has always been and still is ready to do what is
required, thus saving costs where the whole cause
is admitted, or preventing delay where it is a
replication, if the allegation is made out. 3 Bl.
Comm. 303.
UNCUTH. In Saxon law. Unknown; a stranger.
A person entertained in the house of another was,
on the first night of his entertainment, so called.
Bract. fol. 124b. See Twa Night Gest.
UNDE NIHIL HABET. Lat. , In old English law.
The name of the writ of dower, which lay for a
widow, where no dower at all had been assigned
her within the time limited by law. 3 Bl. Comm.
183.
UNDEFENDED. A term sometimes applied to
one who is obliged to make his own defense when
on trial, or in a civil cause. A cause is said to be
undefended when the defendant makes default,
in not putting in an appearance to the plaintiff's
action; in not putting in his statement of defense;
or in not appearing at the trial either personally
or by counsel, after having received due notice.
Mozley & Whitley.
UNDER. Sometimes used in its literal sense of
below in position, beneath, but more frequently
in its secondary meaning of "inferior" or "sub-
ordinate." Mills v. Stoddard, Mo., 49 U.S. 345, 8
How. 356, 12 L.Ed. 1107; Biordi v. Yanosevich, 93
Pa.Super. 578, 582.
Also according to; as, "under the testimony."
Boughan v. State, 193 Ind. 66, 138 N.E. 87.
UNDER AND SUBJECT. Words frequently used
in conveyances of land which is subject to a mort-
gage, to show that the grantee takes subject to
such mortgage. See Walker v. Physick, 5 Pa. 203;
Lavelle v. Gordon, 15 Mont. 515, 39 P. 740, 27 A.L.
R.,N.S., 337, 401.
UNDER CONTROL. This phrase does not neces-
sarily mean the ability to stop instanter under any
and all circumstances, an automobile being "under
control" within the meaning of the law if it is
moving at such a rate, and the mechanism and
power under such control, that it can be brought
to a stop with a reasonable degree of celerity.
Esponette v. Wiseman, 130 Me. 297, 155 A. 650,
653. Am. motorist is only bound to use that de-
gree of care, caution, and prudence that an or-
dinarily careful, cautious, and prudent man would
have used at the time under same or similar cir-
cumstances in operation of said automobile. Greg-
ory v. Suhr, 221 Iowa 1283, 268 N.W. 14, 17. In
general, as applied to street cars or railroad trains,
the term denotes the control and preparation ap-
propriate to probable emergencies. Lincoln v.
Pacific Electric Ry. Co., 33 Cal.App. 83, 164 P.
412, 415; Torantolla v. Kansas City Rys. Co., Mo.
App., 226 S.W. 617, 618. It is such control as will
enable a train to be stopped promptly if need
should arise. Missouri K. & T. Ry. Co. v. Mis-
souri Pac. Ry. Co., 103 Kan. 1, 175 P. 97, 102. It im-
plies the ability to stop within the distance the
track is. seen to be clear. Fuller v. Oregon-Wash-
ington R. & Na y . Co., 93 Or. 160, 181 P. 338, 341.
UNDER HERD. A term conveying the idea that
a considerable number of domestic animals are
gathered together and held together by herders in
constant attendance and in control of their move-
ments from place to place on a public range or
within certain areas. Schreiner v. Deep Creek
Stock Ass'n, 68 Mont. 104, 217 P. 663, 665.
UNDER THE INFLUENCE OF INTOXICATING
LIQUOR. Phrase as used in statutes or ordi-
nances prohibiting the operation of motor vehicle
by a party under the influence of intoxicating liq-
uor covers not only all well-known and easily rec-
ognized conditions and degrees of intoxication,
but any abnormal mental or physical condition
which is the result of indulging in any degree in
intoxicating liquors, and which tends to deprive
one of that clearness of intellect and control of
himself which he would otherwise possess. Com-
monwealth v. Long, 131 Pa.Super. 28, 198 A. 474,
477. Any condition where intoxicating liquor has
so far affected the nervous system, brain or
muscles of the driver as to impair, to an appre-
ciable degree, his ability to operate his automobile
in the manner that an ordinary, prudent and cau-
tious man, in full possession of his faculties, using
reasonable care, would operate or drive under
like conditions. Luellen v. State, 64 Okl.Cr. 382,
81 P.2d 323, 328.
UNDER WAY. Not being at anchor, or made
fast to the shore, or aground;—said of vessels
subject to the navigation rules embraced in Act
June 7, 1897, c. 4, 30 Stat. 96 (33 U.S.C.A. § 154 et
seq., 46 U.S.C.A. § 381 note). The George W. El-
der, C.C.A.Or., 249 F. 956, 958; Kaseroff v. Peter-
sen, C.C.A.Cal., 136 F.2d 184, 186.
Thus, a vessel lying with her nose against the bank of
a stream and holding her position against the current by
the movement of her wheel is a vessel under way, and not
entitled to the rights of an anchored vessel. The Ruth,
108 C.C.A. 199, 186 F. 87. And a steamer being towed
down stream by tugs without any steam on her boilers, ex-
cept for steering purposes, is nevertheless "under way."
The Scandinavia, D.C.N.Y., 11 F.2d 542, 543.
UNDER–CHAMBERLAINS OF THE EXCHEQ-
UER. Two officers who cleaved the tallies writ-
ten by the clerk of the tallies, and read the same,
that the clerk of the pell and comptrollers thereof
might see their entries were true. They also
made searches for records in the treasury, and
had the custody of Domesday Book. Cowell. The
office is now abolished.
UNDERCURRENT OR UNDERFLOW OF SUR-
FACE STREAM. Those waters which slowly find
their way through sand and gravel constituting
bed of a stream, or lands under or immediately
adjacent to stream, and are themselves part, of
surface stream. Maricopa County Municipal Wa-
ter Conservation Dist. No. 1 v. Southwest Cotton
Co., 39 Ariz. 65, 4 P.2d 369, 380.
UNDERFLOW. See Undercurrent
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UNDERGROUND WATERS. See Water, subtitle
Subterranean Waters.
UNDERGhOWTH. A term applicable to plants
growing under or below other greater plants.
Clay v. Telegraph Co., 70 Miss. 411, 11 So. 658.
UNDER-LEASE. Where lessee lets premises for
less time than period of his unexpired term, Mar-
athon Oil Co. v. Lambert, Tex.Civ.App., 103 S.W.
2d 176, 181. Also the transfer of a part only of
the lands, though for the whole term. Fulton v.
Stuart, 2 Ohio 216, 15 Am.Dec. 542; contra, Cox
v. Fenwick, 4 Bibb, Ky., 538.
See, also, that title under main title Lease.
UNDERLIE THE LAW. In Scotch criminal pro-
cedure, an accused person, in appearing to take
his trial, is said "to compear and underlie the law."
Mozley & Whiteley.
UNDER-SHERIFF. An officer who acts directly
under the sheriff, and performs all the duties of
the sheriff's office, a few only excepted where the
personal presence of the high-sheriff is necessary.
The sheriff is civilly responsible for the acts or
omissions of his under-sheriff. Mozley & White-
ley. See Delfelder v. Teton Land and Investment
Co., 46 Wyo. 142, 24 P.2d 702.
A sheriff's deputy, who, being designated by the sheriff
as an "under sheriff," becomes his chief deputy with au-
thority by virtue of his appointment to execute all the
ordinary duties of the office of sheriff. Shirran v. Dallas,
21 Cal.App. 405, 132 P. 454, 458. A distinction is sometimes
made between this officer and a deputy, the latter being ap-
pointed for a special occasion or purpose, while the former
discharges, in general, all the duties required by the
sheriff's office.
UNDERSIGNED, THE. The person whose name
is signed or the persons whose names are signed
at the end of a document; the subscriber or sub-
scribers. Farmers' Exchange Bank of Elvaston v.
Sollars, 353 Ill. 224, 187 N.E. 289, 290, 89 A.L.R.
398.
UNDERSTAND. To know; to apprehend the
meaning; to appreciate; as, to understand the
nature and effect of an act. Western Indemnity
Co. v. MacKechnie, Tex.Civ.App., 214 S.W. 456, 460;
International- g reat Northern R. Co. v. Pence, Tex.
Civ.App., 113 S.W.2d 206, 210. To have a full and
clear knowledge of ; to comprehend. Fox v.
Schaeffer, 131 Conn. 439, 41 A.2d 46, 49.
Thus, to invalidate a deed on the ground that the gran-
tor did not understand the nature of the act, the grantor
must be incapable of comprehending that the effect of the
act would divest him of the title to the land set forth in
the deed. Miller v. Folsom, 49 Okl. 74, 149 P. 1185, 1188.
As used in connection with the execution of wills and
other instruments, the term includes the realization of the
practical effects and consequences of the proposed act.
Tillman v. Ogren, 99 Misc. 539, 166 N.Y.S. 39, 40.
UNDER STANDING. In the law of contracts. An
agreement. Southern Ry. Co. v. Powell, 124 Va.
65, 97 S.E. 357, 358. An implied agreement result-
ing from the express terms of another agreement,
whether written or oral. United States v. United
Shoe Machinery Co., D.C.Mo., 234 F. 127, 148. An
informal agreement, or a concurrence as to its
terms. Barkow v. Sanger, 47 Wis. 507, 3 N.W. 16.
A valid contract engagement of a somewhat in-
formal character. Winslow v. Lumber Co., 32
Minn. 238, 20 N.W. 145. This is a loose and am-
biguous term, unless it be accompanied by some
expression to show that it constituted a meeting
of the minds of parties upon something respecting
which they intended to be bound. Camp v. War-
ing, 25 Conn. 529.
The term may also import simply a wish or hope, as in a
will bequeathing property to another with the "understand-
ing" that at the legatee's death, all property derived un-
der the will should be given to the testatrix's sister. Vin-
cent v. Rix, 127 Misc. 639, 217 N.Y.S. 393, 399.
UNDERSTOOD. The phrase "it is understood,"
when employed as a word of contract in a written
agreement, has the same force as the words "it
is agreed." Phoenix Iron & Steel Co. v. Wilkoff
Co., C.C.A.Ohio, 253 F. 165, 167; Mertz v. Fleming,
185 Wis. 58, 200 N.W. 655, 656.
UNDERTAKE. To take on oneself; to engage in;
to enter upon; to take in hand; set about; at-
tempt; as, to undertake a task; a journey; and,
specifically, to take upon oneself solemnly or ex-
pressly; to lay oneself under obligation or to en-
ter into stipulation; to perform or to execute; to
covenant; contract; hence to guarantee; be sure-
ty for; promise; to accept or take over as a
charge; to accept responsibility for the care of;
to engage to look after or attend to; as to under-
take a patient or guest. Lowe v. Poole, 235 Ala.
441, 179 So. 536, 540. To endeavor to perform,
try, to promise, engage, or agree, assume an ob-
ligation. Torelle v. Templeman, 94 Mont. 149, 21
P.2d 60.
UNDERTAKER. One who undertakes (to do
something). In a mechanic's lien statute, the
word has been held not to include a mere furnish-
er of material in connection with the erection of
the building. In re American Lime Co., D.C.Tenn.,
201 F. 433, 435.
One whose business is to prepare the dead for
burial and to take the charge and management of
funerals. Anderson v. State, 19 Ala.App. 606, 99
So. 778, 779; State v. Whyte, 177 Wis. 541, 188
N.W. 607, 608, 23 A.L.R. 67.
UNDERTAKING. A promise, engagement, or
stipulation. An engagement by one of the parties
to a contract to the other, as distinguished from
the mutual engagement of the parties to each
other. 5 East 17; 4 B. & Ald. 595, followed in
Alexander v. State, 28 Tex.App. 186, 12 S.W. 595.
It does not necessarily imply a consideration.
Thompson v. Blanchard, 3 N.Y. 335.
In a somewhat special sense, a promise given
in the course of legal proceedings by a party or his
counsel, generally as a condition to obtaining some
concession from the court or the opposite party.
Sweet.
A promise or security in any form. Code, Iowa,
§ 48, par. 20.
An official undertaking, such as one by a county clerk
or other officer under statutes, unlike an official bond, is
not required to be signed by the principal. Fleischner v.
Florey, 111 Or. 35, 224 P. 831, 832.
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UNDER-TENANT. A tenant under one who is
himself a tenant; one who holds by under-lease.
See, also, Under-Lease.
UNDERTOOK. Agreed; promised; assumed.
This is the technical word to be used in alleging
the promise which forms the basis of an action of
assumpsit. Bacon, Abr. Assumpsit (F).
UNDER-TREASURER OF ENGLAND. He who
transacted the business of the lord high treasur-
er.
UNDER-TUTOR. In Louisiana. In every tutor-
ship there shall be an under-tutor, whom it shall
be the duty of the judge to appoint at the time
letters of tutorship are certified for the tutor. It
is the duty of the under-tutor to act for the minor
whenever the interest of the minor is in opposi-
tion to the interest of the tutor. Civ. Code La.
arts. 273, 275.
UNDERWRITE. To insure life or property. See
Underwriter.
To insure the sale of corporate bonds or similar securi-
ties to the public by agreeing to buy those which are not
sold. Busch v. Stromberg-Carlson Tel. Mfg. Co., C.C.A.
Mo., 217 F. 328, 330; Stewart v. G. L. Miller & Co., 161
Ga. 919, 132 S.E. 535, 538, 45 A.L.R. 559. To agree to sell
bonds, etc., to the public, or to furnish the necessary
money for such securities, and to buy those which can-
not be sold. Minot v. Burroughs, 223 Mass. 595, 112 N.E.
620, 623; Rauer's Law & Collection Co. v. Harrell, 32 Cal.
App. 45, 162 P. 125, 131.
An underwriting contract, aside from its use in insur-
ance, is an agreement, made before corporate shares are
brought before the public, that In the event of the public
not taking all the shares or the number mentioned in the
agreement, the underwriter will take the shares which the
public do not take; "underwriting" being a purchase,
together with a guaranty of a sale of the bonds. Fraser
v. Home Telephone & Telegraph Co., 91 Wash. 253, 157 P.
692, 694; In re Hackett, Hoff and Thiermann, C.C.A.Wis.,
70 F.2d 815, 819.
UNDERWRITER. The person who insures an-
other, as in a fire or life policy; the insurer. See
Childs v. Firemen's Ins. Co., 66 Minn. 393, 69 N.
W. 141, 35 L.R.A. 99. Especially, a person who
joins with others in entering into a marine policy
of insurance as insurer.
One who underwrites corporate bonds or stocks.
Fraser v. Home Telephone & Telegraph Co., 91
Wash. 253, 157 P. 692, 694. One who agrees with
others to purchase an entire issue of bonds or
other securities, usually at the end of a certain
period.  By reason of such underwriting, the
bonds, etc., obtain a market value or a value as
collateral security. See Underwrite.
UNDISCLOSED PRINCIPAL. If, at time of
transaction conducted by agent, other party there-
to has no notice that agent is acting for a prin-
cipal, the principal is "undisclosed principal."
Dodge v. Blood, 299 Mich. 364, 300 N.W. 121, 123.
UNDISPUTED. Meaning "uncontested," rather
than "uncontradicted." Pennsylvania R. Co. v.
Stallings, 165 Md. 615, 170 A. 163, 164.
UNDISPUTED FACT. Within the meaning of a
statute, an admitted fact, which the court has not
deemed sufficiently material to add to the finding,
or has inadvertently omitted from it; a fact not
found by the court does not become an "undisput-
ed fact," merely because one or more witnesses
testify to it without direct contradiction. Dexter
Yarn Co. v. American Fabrics Co., 102 Conn. 529,
129 A. 527, 532.
UNDIVIDED PROFITS. Profits which have not
in fact been divided or distributed, English &
Mersick Co. v. Eaton, D.C.Conn., 299 F. 646, 649;
or otherwise used, Douglas v. Edwards, C.C.A.N.
Y., 298 F. 229, 237. Current undistributed earn-
ings. Edwards v. Douglas, 46 S.Ct. 85, 89, 269 U.
S. 204, 70 L.Ed. 235. Winkelman v. General Mo-
tors Corporation, D.C.N.Y., 44 F.Supp. 960, 966.
Profits not set aside as surplus or distributed
in dividends. First Nat. Bank v. Moon, 102 Kan.
334, 170 P. 33, 34, L.R.A.1918C, 986; Phillips v.
U. S., D.C.Pa., 12 F.2d 598, 600.
The terms "surplus" and "undivided profits" have differ-
ent meanings in banking circles. State ex rel. Payne v.
Exchange Bank of Natchitoches, 84 So. 481, 482, 147 La. 25.
Surplus, like the capital stock, constitutes the working
capital of the bank and is, in addition, a fund for the
protection of the depositors. The "undivided profits" con-
stitute a temporary fund changing in size from day to day
and carried only until dividend periods when it is distrib-
uted to the stockholders or transferred to the permanent
surplus. It is the fund from which the expenses and
losses of the bank are paid. Sarles v. Scandinavian
American Bank, 33 N.D. 40, 156 N.W. 556, 557.
"Surplus" and "undivided profits," as commonly em-
ployed in corporate accounting, denote an excess in the
aggregate value of the assets of the corporation over the
sum of liabilities, including capital stock; "surplus" de-
scribing such part of the excess in the value of the corpo-
rate assets as is treated by the corporation as part of the
permanent capital, while the term "undivided profits"
designates such part of the excess as consists of profits
neither distributed as dividends nor carried to the surplus
* account. Willcuts v. Milton Dairy Co., 48 S.Ct. 71, 72, 275
U.S. 215, 72 L.Ed. 247.
UNDIVIDED RIGHT. An undivided right or title,
or a title to an undivided portion of an estate, is
that owned by one of two or more tenants in
common or joint tenants before partition. Held
by the same title by two or more persons, whether
their rights are equal as to value or quantity, or
unequal. See In re Wellington, 16 Pick. (Mass.)
98, 26 Am.Dec. 631.
UNDRES. In old English law. Minors or per-
sons under age not capable of bearing arms.
Fleta, 1. 1, c. 9; Cowell.
UNDUE. More than necessary; not proper; il-
legal. Webb v. Superior Court in and for Del
Norte County, 28 Cal.App. 391, 152 P. 957, 958.
See, also, Elk Hotel Co. v. United Fuel Gas Co.,
75 W.Va. 200, 83 S.E. 922, 924, L.R.A.1917E, 970.
It denotes something wrong, according to the standard
of morals which the law enforces in relations of men, and
in fact illegal, and qualifies the purpose with which in-
fluence is exercised or result which it accomplishes. Mor-
ris v. Morris, 192 Miss. 518, 6 So.2d 311, 312.
UNDUE INFLUENCE. Any improper or wrong-
ful constraint, machination, or urgency of persua-
sion whereby the will of a person is overpowered
and he is induced to do or forbear an act which
he would not do or would do if left to act freely.
Powell v. Betchel, 340 Ill. 330, 172 N.E. 765, 768.
Influence which deprives person influenced of free
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agency or destroys freedom of his will and rem
ders it more the will of another than his own.
Conner v. Brown, Del., 3 A.2d 64, 71, 9 W.W.Harr.
529; In re Velladao's Estate, 31 Cal.App.2d 355,
88 P.2d 187, 190.
"Undue influence" is not necessarily physical injury or
threat of it, but is a species of duress, or at least often in-
distinguishable from it. Trigg v. Trigg, 37 N.M. 296, 22
P.2d 119. And although there is no coercion amounting to
duress, but transaction is result of moral, social, or domes-
tic force, consciously and designedly exerted on party,
peculiarly susceptible to external pressure on account of
mental weakness, old age, ignorance, and the like, control-
ling the free action of the will, and preventing a true con-
sent, equity may relieve against the transaction on the
ground of "undue influence." In re Null's Estate, 302 Pa.
64, 153 A. 137, 139. But modest persuasion or arguments
addressed to the understanding or the appeal of affection
cannot be deemed "undue influence". Calveard v. Reyn-
olds, 281 Ky. 518, 136 S.W.2d 795, 799.
Undue influence consists (1) in the use, by one in
whom a confidence is reposed by another, or who holds a
real or apparent authority over him, of such confidence or
authority, for the purpose of obtaining an unfair advan-
tage over him; (2) in taking an unfair advantage of an-
other's weakness of mind; or (3) in taking a grossly op-
pressive and unfair advantage of another's necessities or
distress. Buchanan v. Prall, 39 N.D. 423, 167 N.W. 488,
489; Dolliver v. Dolliver, 94 Cal. 642, 30 P. 4.
"Undue influence," such as will invalidate a will, must
be something which destroys the free agency of the testa-
tor at the time when the instrument is made, and which,
in effect, substitutes the will of another for that of the
testator. It is not sufficient that the testator was in-
fluenced by the beneficiaries in the ordinary affairs of life,
or that he was surrounded by them and in confidential re-
lations with them at the time of its execution. Mere
general influence, not brought to bear on the testamentary
act, is not undue influence; but in order to constitute un-
due influence, it must be used directly to procure the will,
and must amount to coercion destroying the free agency
of the testator. Mere suspicion that undue influence was
brought to bear is not sufficient to justify the setting aside
of the will. Myers v. Myers, 130 Okl. 184, 266 P. 452, 455.
To constitute "undue influence," justifying denial or revo-
cation of probate of will, testator's mind must have been
so controlled or affected by persuasion or pressure, artful
or fraudulent contrivances, or by influences of persons in
close confidential relations with him, that he is not left to
act intelligently, understandingly, and voluntarily, but
subject to will or purposes of another. In re Starr's Es-
tate, 125 Fla. 536, 170 So. 620. Solicitation, importunity,
argument, advice, and persuasion are not "undue influ-
ence" sufficient to avoid a contract or will. Influence ob-
tained by persuasion and argument, or gained by kind-
ness and affection, is not prohibited, where no imposition
or fraud is practiced, and where the person's will is not
overcome. Barron v. Reardon, 137 Md. 308, 113 A. 283, 285;
Stump v. Sturn, C.C.A.W.Va., 254 F. 535, 538.
Undue influence at elections occurs where any
one interferes with the free exercise of a voter's
franchise, by violence, intimidation, or otherwise.
It is a misdemeanor. 1 Russ.Crimes, 321; Steph.
Crim. Dig. 79.
UNEARNED INCREMENT. Value due to no la-
bor or expenditure on the part of an owner but to
natural causes making an increased demand for
it, such as increase of population or the general
progress of society. Miller v. Huntington & Ohio
Bridge Co., 123 W.Va. 320, 15 S.E.2d 687, 699.
UNEDUCATED. Not synonymous with illiterate.
A man might be able to read and write, carry on
a business correspondence, understand business
transactions, and be bound by all his contracts,
and yet be an "uneducated" man. Baker v. Pat-
ton, 144 Ga. 502, 87 S.E. 659, 660.
UNEMPLOYMENT. State of being not employed,
lack of employment. A. J. Meyer & Co. v. Unem-
ployment Compensation Commission, 348 Mo. 147,
152 S.W.2d 184, 189.
UNEQUAL. Not uniform. Los Angeles County
v. Ransohoff, 24 Cal.App.2d 238, 74 P.2d 828, 830.
Ill-balanced; uneven; partial; unfair;—not syn-
onymous with inappropriate, which means un-
suitable, unfit, or improper. Lane v. St. Denis
Catholic Church of Benton, Mo.App., 274 S.W.
1103, 1106.
UNEQUIVOCAL. Clear; plain; capable of being
understood in only one way, or as clearly demon-
strated; free from uncertainty, or without doubt;
and, when used with reference to the burden of
proof, it implies proof of the highest possible
character and it imports proof of the nature of
mathematical certainty. Berry v. Maywood Mut.
Water Co. No. 1, 11 Cal.App.2d 479, 53 P.2d 1032;
Molyneux v. Twin Falls Canal Co., 54 Idaho 619,
35 P.2d 651, 656, 94 A.L.R. 1264.
UNERRING. Incapable of error or failure; cer-
tain; sure; infallible. Gardner v. State, 27 Wyo.
316, 196 P. 750, 752, 15 A.L.R. 1040.
UNETHICAL. Not ethical; hence, colloquially,
not according to business or professional stand-
ards. Kraushaar v. La Vin, 181 Misc. 508, 42 N.
Y.S.2d 857, 859.
UNETHICAL CONDUCT. Authorizing recovery
of broker's commission for sale completed by an-
other broker means a purpose to obtain profits
from broker's exertions without payment, and
exists where employer revokes the broker's au-
thority and makes the sale through other means
when the broker has performed all he has under-
taken or is plainly or evidently approaching suc-
cess. Kacavas v. Diamond, 303 Mass. 88, 20 N.E.
2d 936, 938.
UNEXCEPTIONABLE. Without any fault; not
subject to any objection or criticism. Washam v.
Beaty, 210 Ala. 635, 99 So. 163, 167.
UNEXPECTED. Not expected, coming without
warning, sudden. Bachus v. Ronnebaum, 98 Ind.
App. 603, 186 N.E. 386, 387.
UNEXPIRED TERM. Remainder of a period pre-
scribed by law after a portion of such time has
passed, and phrase is not synonymous with "va-
cancy." State ex rel. Sanchez v. Dixon, La.App.,
4 So.2d 591, 596.
UNFAIR. In the labor movement, unfriendly to
organized labor; refusing to recognize its rules
and regulations ;—applied particularly to employ-
ers, e. g., one who refuses to employ members of
a trade union. Steffes v. Motion Picture Mach.
Operators' Union, 136 Minn. 200, 161 N.W. 524.
A characterization of an employer who refuses
to conduct his business in manner desired by
union. John R. Thompson Co. v. Delicatessen
and Cafeteria Workers Union Local 410, 126 N.J.
Eq. 119, 8 A.2d 130, 133; Blossom Dairy Co. v.
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UNFAIR LABOR PRACTICE
International Brotherhood of Teamsters, 125 W.
Va. 165, 23 S.E.2d 645, 650.
UNFAIR COMPETITION. A term which may be
applied generally to all dishonest or fraudulent
rivalry in trade and commerce, but is particu-
larly applied in the courts of equity (where it
may be restrained by injunction) to the practice
of endeavoring to substitute one's own goods or
products in the markets for those of another, hav-
ing an established reputation and extensive sale,
by means of imitating or counterfeiting the name,
title, size, shape, or distinctive pecularities of the
article, or the shape, color, label, wrapper, or gen-
eral appearance of the package, or other such
simulations, the imitation being carried far
enough to mislead the general public or deceive
an unwary purchaser, and yet not amounting to
an absolute counterfeit or to the infringement of
a trade-mark or trade-name. Called in France
"concurrence deloyale" and in Germany "unlau-
terer Wettbewerb." Reddaway v. Banham, [1896]
App.Cas. 199; Singer Mfg. Co. v. June Mfg. Co.,
16 S.Ct. 1002, 163 U.S. 169, 41 L.Ed. 118; Dennison
Mfg. Co. v. Thomas Mfg. Co., C.C.Del., 94 F. 651;
Sterling Remedy Co. v. Eureka Chemical Co., 25
C.C.A. 314, 80 F. 108.
The simulation by one person of the name, ma-
terials, color scheme, symbols, patterns, or devices
employed by another for purpose of deceiving the
public, or substitution of goods, or wares of one
person for those of another, thus falsely induc-
ing purchase of goods and obtaining benefits be-
longing to competitor. Mathews Conveyor Co. v.
Palmer-Bee Co., C.C.A.Mich., 135 F.2d 73, 84; Ess-
kay Art Galleries v. Gibbs, 205 Ark. 1157, 172 S.
W.2d 924, 926. American Fork & Hoe Co. v. Stam-
pit Corporation, C.C.A.Ohio, 125 F.2d 472, 474, 475.
Passing off, or attempting to pass off upon the
public the goods or business of one person as the
goods or business of another. Westminister Laun-
dry Co. v. Hesse Envelope Co., 174 Mo.App. 238,
156 S.W. 767, 768; Sayre v. McGill Ticket Punch
Co., D.C.Ill., 200 F. 771, 773; Socony-Vacuum Oil
Co. v. Oil City Refiners, C.C.A.Ohio, 136 F.2d 470,
474. The selling of another's product as one's
own. A. L. A. Schechter Poultry Corporation v.
United States, N.Y., 55 S.Ct. 837, 844, 295 U.S. 495,
79 L.Ed. 1570, 97 A.L.R. 947. The sale of goods by
means which shock judicial sensibilities. Mar-
garete Steiff v. Bing, D.C.N.Y., 215 F. 204, 206.
See, however, Federal Trade Commission v. Gratz,
40 S.Ct. 572, 575, 253 U.S. 421, 64 L.Ed. 993. Also
deceitful advertising which injures a competitor,
bribery of employees, secret rebates and conces-
sions, and other devices of unfair trade. In re
Northern Pigment Co., Cust. & Pat. App., 71 F.2d
447, 453.
Fraudulent intent is a necessary ingredient of unfair
competition. Queen Mfg. Co. v. Isaac Ginsberg & Bros.,
C.C.A.Mo., 25 F.2d 284, 288.
The equitable doctrine of "unfair competition" is not
confined to cases of actual market competition between
similar products of different parties, but extends to all
cases in which one party fraudulently seeks to sell his
goods as those of another. Wisconsin Electric Co. v. Du-
more Co., C.C.A.Ohio, 35 F.2d 555, 557.
Test of "unfair competition" is, not whether distinction
between two competing products can be recognized when
placed alongside each other, but whether, when the two
products are not viewed together, a purchaser of ordinary
prudence would be induced by reason of the marked re-
semblance in general effect to mistake one for the other
despite differences in matters of detail. Ralston Purina Co.
v. Checker Food Products Co., Mo.App., 80 S.W.2d 717, 719,
720.
UNFAIR HEARING. Where the defect, or the
practice complained of, was such as might have
led to a denial of justice, or where there was ab-
sent one of the elements deemed essential to due
process. Ex parte Bridges, D.C.Cal., 49 F.Supp.
292, 302, 306; Bufalino v. Irvine, C.C.A.Kan., 103
F.2d 830, 832; Kielema v. Crossman, C.C.A.Tex.,
103 F.2d 292, 293.
UNFAIR LABOR PRACTICE. Within National
Labor Relations Act for an employer: (1) To in-
terfere with, restrain, or coerce employees in the
exercise of their rights to self-organization, to
form, join or assist labor organizations, to bar-
gain collectively through representatives of their
own choosing, and to engage in concerted activ-
ities, for the purpose of collective bargaining or
other mutual aid or protection. (2) To dominate
or interfere with the formation or administration
of any labor organization or contribute financial or
other support to it. (3) By discrimination in re-
gard to hire or tenure of employment or any term
or condition of employment to encourage or dis-
courage membership in any labor organization.
(4) To discharge or otherwise discriminate against
an employee because he has filed charges or given
testimony under the Act. (5) To refuse to bar-
gain collectively with the representatives of his
employees. National Labor Relations Act, §§ 7,
8, 29 U.S.C.A. §§ 102.1 et seq., 157, 158.
The following has been held to be "unfair labor prac-
tice" under National Relations Act:
Failure to re-employ striking employees. Western Cart-
ridge Co. v. National Labor Relations Board, C.C.A.7, 139
F.2d 855, 858. Refusal of employer to reinstate union
members who were evicted from plant unless members
would withdraw from union. National Labor Relations
Board v. J. G. Boswell Co., C.C.A.9, 136 F.2d 585, 590, 592,
596. Refusal of employer to bargain collectively in good
faith. National Labor Relations Board v. Griswold Mfg.
Co., C.C.A.3, 106 F.2d 713, 724; National Labor Relations
Board v. Somerset Shoe Co., C.C.A.1, 111 F.2d 681, 688, 689.
Threats by employer to close if union gained a foothold
in plant. National Labor Relations Board v. J. G. Bos-
well Co., C.C.A.9, 136 F.2d 585, 590, 592, 596. Anti-union
statements made by employer's supervisory employees dur-
ing and after strike, together with statement to one of the
strikers that he would never get a job in that town any-
more. N. L. R. B. v. Indiana Desk Co., C.C.A.7, 149 F.2d
987, 992, 996. Refusal of employer to permit posting of a
notice that employer would not discriminate against em-
ployees who wished to join union. National Labor Rela-
tions Board v. J. G. Boswell Co., C.C.A.9, 136 F.2d 585, 590,
592, 596. Discharge of an employee because of membership
in or activity on behalf of a labor organization. National
Labor Relations Board v. Newark Morning Ledger, C.C.A.
3, 120 F.2d 262, 268; National Labor Relations Board v.
Bank of America Trust & Savings Ass'n, C.C.A.9, 130 F.2d
624, 628, 629. Employer's interference with and his domin-
ating formation and administration of new labor organiza-
tion. National Labor Relations Board v. Swift & Co., C.C.
A.8, 116 F.2d 143, 145 146; National Labor Relations Board
v. Blossom Products Corporation, C.C.A.3, 121 F.2d 260,
262; National Labor Relations Board v. Stackpole Carbon
Co., C.C.A.3, 105 F.2d 167, 173, 175. Refusal of employer
which had refused to bargain with union which had been
certified as the exclusive bargaining agent. National Labor
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UNFAIR METHODS OF COMPETITION
Relations Board v. John Engelhorn & Sons, C.C.A.3, 134
F.2d 553, 558. Assault by persons employed by manufac-
turer upon union organizers or sympathizers. National
Labor Relations Board v. Ford Motor Co., C.C.A.6, 114 F.2d
905, 911, 915. Discharge of employee because he would
not become member of union in accordance with closed
shop agreement. Virginia Electric & Power Co. v. National
Labor Relations Board, C.C.A.4, 132 F.2d 390, 396.
UNFAIR METHODS OF COMPETITION. This
phrase within Federal Trade Commission Act has
broader meaning than common-law term "unfair
competition," but its scope cannot be precisely
defined, and what constitutes "unfair methods of
competition" must be determined in particular in-
stances, upon evidence, in light of particular com-
petitive conditions and of what is found to be a
specific and substantial public interest. Federal
Trade Commission Act § 5, 15 U.S.C.A. § 45. A.L.
A. Schechter Poultry Corporation v. United States,
N.Y., 55 S.Ct. 837, 844, 295 U.S. 495, 79 L.Ed. 1570,
97 A.L.R. 947.
The term though not defined by the statute is clearly in-
applicable to practices never heretofore regarded as op-
posed to good morals because characterized by deception,
bad faith, fraud, or oppression, or as against public policy
because of their dangerous tendency unduly to hinder com-
petition or create monopoly.. The act was not intended to
fetter free and fair competition as commonly understood
and practiced by honorable opponents in trade. In re
Amtorg Trading Corporation, Cust & Pat.App., 75 F.2d
826, 830. But a method was said to be an unfair method
if it does not leave to each actual or potential competitor
a fair opportunity for play of his contending force en-
gendered by an honest desire for gain. California Rice In-
dustry v. Federal Trade Commission, C.C.A.9, 102 F.2d
716, 721.
UNFAIR TRADE, DOCTRINE OF. The doctrine
that one person has no right to sell goods as goods
of another, nor to do other business as the busi-
ness of another. Foster Canning Co. v. Lardan
Packing Co., Sup., 17 N.Y.S.2d 583, 585.
UNFAITHFUL. Characterized by bad faith,—
not synonymous with "illegal," which means un-
lawful or contrary to law, nor with "improper,"
which, as applied to conduct, implies such conduct
as a man of ordinary and reasonable prudence
would not, under the circumstances, have been
guilty of. State v. American Surety Co. of New
York, 26 Idaho 652, 145 P. 1097, 1104, Ann.Cas.
1916E, 209.
UNFINISHED. Not completed; not brought to
an end; imperfect; the last effort, as a final touch
is given to a work. Bell & Graddy v. O'Brien, Tex.
Civ.App., 113 S.W.2d 560, 562.
UNFIT. Unsuitable, incompetent, not adapted or
qualified for a particular use or service, having no
fitness. Morse v. Caldwell, 55 Ga.App. 804, 191
S.E. 479, 488.
UNFIT FOR USE AS A BEVERAGE. This lan-
guage in a statute is not necessarily applicable to
an alcoholic compound or preparation merely be-
cause it may be drunk in sufficient quantities to
produce death. Thamann v. Merritt, 111 Neb. 639,
197 N.W. 413, 414.
UNFORESEEN. Not foreseen, not expected.
Pampel v. Board of Examiners, 114 Mont. 380, 136
P.2d 991, 994.
UNFORESEEN CAUSE. With reference to caus-
es excusing delay, under the Workmen's Compen-
sation Act, in giving notice of injury, a cause
which could not have been reasonably foreseen
as likely to arise or occur, and yet is of such a
nature as to have substantially interfered with
the giving of the notice. Wardwell's Case, 121 Me.
216, 116 A. 447, 448. A reasonable cause. Don-
ahue v. R. A. Sherman's Sons Co., 39 R.I. 373, 98
A. 109, L.R.A. 1917A, 76.
UNFORESEEN EVENT. In the civil law. A vis
major; an uncontrollable force;—so used in Civ.
Code La. art. 2697, relating to the termination of a
lease by the total destruction of the property.
Knapp v. Guerin, 144 La. 754, 81 So. 302, 305.
UNGELD. In Saxon law An outlaw; a person
whose murder required no composition to be
made, or weregeld to be paid, by his slayer.
UNHARMED. Within provision of Federal Kid-
napping Act that death sentence shall not be im-
posed if kidnapped person has been liberated un-
harmed, means uninjured. Federal Kidnapping
Act § 1 et seq., as amended, 18 U.S.C.A. § 1201 et
seq. Robinson v. U. S., Ky., 65 S.Ct. 666, 668, 324
U.S. 282, 89 L.Ed. 944.
UNIATE CHURCH. One united with Rome and
subject to control by local ecclesiastical authority
representing the Vatican. Drozda v. Bassos, 260
App.Div. 408, 23 N.Y.S.2d 544, 547.
UNICA TAXATIO. The obsolete language of a
special award of venire, where, of several defend-
ants, one pleads, and one lets judgment go by de-
fault, whereby the jury, who are to try and assess
damages on the issue, are also to assess damages
against the defendant suffering judgment by de-
fault. Wharton.
UNIFACTORAL OBLIGATION. See Contract.
UNIFIED. Made one. Adams v. Salt River Val-
ley Water Users' Ass'n, 53 Ariz. 374, 89 P.2d 1060.
1071.
UNIFORM, n. Within the meaning of an ordi-
nance requiring a traction company to give free
transportation to members of the police force and
fire department when in uniform, a plain clothes
man, whose only prescribed uniform was a metal
badge which might be worn concealed, while wear-
ing such badge was "in uniform." Montgomery
Light & Traction Co. v. Avant, 202 Ala. 404, 80 So.
497, 498, 3 A.L.R. 384.
UNIFORM, adj. Conforming to one rule, mode,
or unvarying standard; not different at different
times or places; applicable to all places or divi-
sions of a country. People v. Vickroy, 266 Ill. 384,
107 N.E. 638, 640. Equable; applying alike to all
within a class. Bufkin v. Mitchell, 106 Miss. 253,
63 So. 458, 459, 50 L.R.A.,N.S., 428.
A statute is general and uniform in its opera-
tion when it operates equally upon all persons
who are brought within the relations and circum-
stances provided for, McAunich v. Mississippi &
M. R. Co., 20 Iowa, 342. Stevens v. Village of
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UNILATERAL
Nashwauk, 161 Minn. 20, 200 N.W. 927, 929, when
all persons under the same conditions and in the
same circumstances are treated alike, and classifi-
cation is reasonable and naturally inherent in the
subject-master. Kelly v. Finney, 207 Ind. 557, 194
N.E. 157, 166.
The words "general" and "uniform" as applied to laws
have a meaning antithetical to special or discriminatory
laws. Ex parte Nowak, 184 Cal. 701, 195 P. 402, 404. The
term "uniform," however, does not mean universal. Wat-
son v. G.eely, 67 Cal.App. 328, 227 P. 664, 670.
The burdens of taxation, to be uniform, must
have the essential of equality, and must bear alike
upon all the property within the limits of the
unit wherein it is lawful to levy taxes for a pur-
pose, whether that unit be the state, county, or a
municipality. Lang v. Commonwealth, 190 Ky. 29,
226 S.W. 379, 382. See, also, Jordan v. Duval Coun-
ty, 68 Fla. 48, 66 So. 298, 299. And requirement
is met when tax is equal on all persons belonging
to descibed class on which tax is imposed. Hilton
v. Harris, 207 N.C. 465, 177 S.E. 411.
With reference to locality, a tax is "uniform" when it
operates with equal force and effect in every place where
the subject of it is found, and with reference to classifica-
tion, it is uniform when it operates without distinction or
discrimination upon all persons composing the described
class. Hart v. Board of Comrs. of Burke County, 192
N.C. 161, 134 S.E. 403, 405; City of Cape Girardeau v.
Fred A. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040,
1042.
UNIFORM LAWS. A considerable number of
laws have been approved by the National Con-
ference of Commissioners on Uniform State Laws,
and many of them have been adopted in one or
more jurisdictions in the United States and its
possessions. Among the more important of these
laws are the Uniform Negotiable Instruments Act
which has been adopted in all the states as well
as in the District of Columbia, Alaska, Hawaii, the
Philippine Islands, and Porto Rico; the Uniform
Sales Act, which in 1950 had been adopted in 37
jurisdictions; the Uniform Bills of Lading Act,
in 32 jurisdictions; the Uniform Stock Transfer
Act, in all the states as well as in the District of
Columbia, Alaska and Hawaii; and the Uniform.
Partnership Act, in 32. , Others which may be men-
tioned include the Uniform Warehouse Receipts,
Declaratory Judgments, Fiduciaries, Fraudulent
Conveyance, Desertion and Nonsupport, Veterans'
Guardianship, Conditional Sales and Limited Part-
nership Acts.
UNIFORMITY. Conformity to one pattern; same-
ness. Naill v. Order of United Commercial Travel-
ers of America, 103 Okl. 179, 229 P. 833, 837.
"Uniformity of operation" of laws does not require "uni-
versality of operation."  The former term relates to
similarity of conditions affecting subjects or localities of
the state that are appropriately classified. The latter term
relates to the whole and every part of the state. State
v. Daniel, 87 Fla. 270, 99 So. 804, 809.
The constitutional requirement of "uniformity" is com-
plied with when the law operates uniformly upon all per-
sons brought within the relations and circumstances provid-
ed by it. Abbott v. Commissioners of Roads and Revenues
of Fulton County, 160 Ga. 657, 129 S.E. 38, 41.
Uniformity in taxation implies equality in the
burden of taxation, which cannot exist without
uniformity in the mode of assessment, as well as
in the rate of taxation. Further, the uniformity
must be coextensive with the territory to which
it applies. And it must be extended to all prop-
erty subject to taxation, so that all property may
be taxed alike and equally. Exchange Bank v.
Hines, 3 Ohio St. 15. And see Edye v. Robertson,
5 S.Ct. 247, 112 U.S. 580, 28 L.Ed. 798; People v.
Auditor General, 7 Mich. 90; Hilger v. Moore, 56
Mont. 146, 182 P. 477, 481. Department of Justice
v. A. Overholt and Co., 331 Pa. 182, 200 A. 849,
853.
The rule of "uniformity" does not require that all sub-
jects be taxed, nor taxed alike, but is complied with when
the tax is levied equally and uniformly on all subjects of
the same class and kind. Sims v. Ahrens, 167 Ark. 557, 271
S. W. 720, 729. The uniformity required in taxation is
limited to a uniformity in rate, assessment, and valuation
of the particular tax involved, and has no reference to a
uniformity of the sum total of taxes which a citizen is re-
quired to pay. King v. Sullivan County, 128 Tenn. 393,
160 S.W. 847, 848, and does not require uniformity of col-
lection, but only uniformity of assessment. Mississippi
State Tax Commission v. Flora Drug Co., 167 Miss. 1, 148
So. 373, 378.
Uniformity in taxation means equality in burden and not
equality in method. Ewert v. Taylor, 38 S.D. 124, 160 N.
W. 797, 803.
See, also, "Uniform, adj."
UNIFORMITY, ACT OF. An act which regulates
the terms of membership in the Church of Eng-
land and the colleges of Oxford and Cambridge,
(St. 13 & 14 Car. II. c. 4.) See St. 9 & 10 Vict. c.
59. The act of uniformity has been amended by
the St. 35 & 36 Vict. c. 35, which inter alia pro-
vides a shortened form of morning and evening
prayer. Wharton.
UNIFORMITY OF PROCESS ACT. The English
statute of 2 Wm. IV. c. 39, establishing a uniform
process for the commencement of actions in all
the courts of law at Westminster. 3 Steph. Comm.
566. The improved system thus established was
more fully amended by the Procedure Acts of
1852, 1854, and 1860, and by the Judicature Acts of
1873 and 1875.
UNIFY. To cause to be one; to make into a unit;
to unite; to become one; to consolidate. Adams
v. Salt River Valley Water Users' Ass'n, 53 Ariz.
374, 89 P.2d 1060, 1071.
UNIGENITURE. The state of being the only be-
gotten.
UNILATERAL. One-sided; ex parte; having re-
lation to only one of two or more persons or
things.
UNILATERAL CONTRACT. See Contract.
UNILATERAL MISTAKE. A mistake or misun-
derstanding as to the terms or effect of a con-
tract, made or entertained by one of the parties to
it but not by the other. Green v. Stone, 54 N.J.
Eq. 387, 34 A. 1099, 55 Am.St.Rep. 577; Kant v.
Atlanta, B. & A. R. Co., 189 Ala. 48, 66 So. 598,
599.
UNILATERAL RECORD. Records are unilateral
when offered to show a particular fact, as a prima
facie case, either for or against a stranger. Col-
ligan v. Cooney, 107 Tenn. 214, 64 S.W. 31.
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UNIMPEACHABLE
UNIMPEACHABLE WITNESS. Within a statute
requiring proof of a holographic will by the unim-
peachable evidence of at least three disinterested
witnesses to the testator's handwriting, one whom
the jury finds to speak truthfully and whose con-
clusion they find to be correct, notwithstanding the
presence of other evidence contradicting him.
Sneed v. Reynolds, 166 Ark. 581, 266 S.W. 686, 689;
Murphy v. Murphy, 144 Ark. 429, 222 S.W. 721,
723.
UNIMPROVED LAND. A statutory term which
includes lands, once improved, that have reverted
to a state of nature, as well as lands that have
never been improved. Moore v. Morris, 118 Ark.
516, 177 S.W. 6, 8.
UNINCLOSED PLACE. A place not entirely in-
closed, an "inclosed" place being a place inclosed
on all sides by some sort of material. Ex parte
Wisner, 32 Cal.App. 637, 163 P. 868, 869.
UNINFECTED. Untainted or uncontaminated,
not affected unfavorably, not impregnated or per-
meated with that which is bad or harmful. Leon-
ardi v. A. Habermann Provision Co., 143 Ohio St.
623, 56 N.E.2d 232, 237.
UNINTELLIGIBLE. That which cannot be under-
stood.
UNIO. Lat. In canon law. A consolidation of
two churches into one. Cowell.
UNIO PROLIUM. Lat. Uniting of offspring. A
method of adoption, chiefly used in Germany, by
which step-children (on either or both sides of the
house) are made equal, in respect to the right of
succession, with the children who spring from the
marriage of the two contracting parties. See
Heinecc. Elem. § 188.
UNION. A league; a federation; an unincor-
porated association of persons for a common pur-
pose; as, a trade or labor union. Hughes v. State,
109 Ark. 403, 160 S.W. 209. A joinder of separate
entities. State ex rel. Dawson v. Dinwiddie, 186
Okl. 63, 95 P.2d 867, 869.
Ecclesiastical Law
Two or more benefices which have been united
into one benefice. Sweet.
English Poor-Law
Two or more parishes which have been consoli-
dated for the better administration of the poor-law
therein.
Public Law
A popular term in America for the United
States; also, in Great Britain, for the consolidated
governments of England and Scotland, or for the
political tie between Great Britain and Ireland.
Scotch Law
A "clause of union" is a clause in a feoffment
by which two estates, separated or not adjacent,
are united as one, for the purpose of making a
single seisin suffice for both.
UNION-JACK. The national flag of Great Brit-
ain and Ireland, which combines the banner of St.
Patrick with the crosses of St. George and St.
Andrew. The word "jack" is most probably de-
rived from the surcoat, charged with a red cross,
anciently used by the English soldiery. This ap-
pears to have been called a "jacque," whence the
word "jacket," anciently written "jacquit." Some,
however, without a shadow of evidence, derive
the word from "Jacques," the first alteration hav-
ing been made in the reign of King James I.
Wharton.
UNION MORTGAGE CLAUSE. A clause, as in a
fire policy (together with the rider making the
loss, if any, payable to the mortgagee), which
provides that if the policy is made payable to a
mortgagee of the insured real estate, no act or
default of any person other than such mortgagee,
or his agents or those claiming under him, shall
affect his right to recover in case of loss on such
real estate. Bankers' Joint Stock Land Bank of
Milwaukee, Wis., v. St. Paul Fire & Marine Ins.
Co., 158 Minn. 363, 197 N.W. 749. Prudential Ins.
Co. of America v. German Mut. Fire Ins. Ass'n of
Lohman, 231 Mo.App. 699, 105 S.W.2d 1001.
Such clause creates independent contract between in-
surer and mortgagee. Conard v. Moreland, 230 Iowa 520,
298 N.W. 628, 629. And is distinguished from "open mort-
gage clause" in that latter clause simply provides that
policy is payable to mortgagee as his interest may ap-
pear. Prudential Ins. Co. of America v. German Mut.
Fire Ins. Ass'n of Lohman, 231 Mo.App. 699, 105 S.W.2d
1001. And mortgagee under such latter clause is merely
an appointee to receive fund recoverable in case of loss
to extent of his interest. Capital Fire Ins. Co. of Cal. v.
Langhorne, C.C.A.Minn., 146 F.2d 237, 241.
UNION OF CHURCHES. A combining and con-
solidating of two churches into one. Also it is
when one church is made subject to another, and
one man is rector of both; and where a conven-
tual church is made a cathedral. Tomlins.
UNION SHOP. One in which none but members
of labor union are engaged as workmen. People
v. Fisher, 3 N.Y.S. 786, 788, 50 Hun, 552.
It was also said that "union shop" exists where employ-
er is permitted to employ a non-union worker, but such
worker is required to join the union as a requisite to his
continuing work.  And that it is distinguished from
"closed shop" where the worker must be a member of
the union as a condition precedent to his employment.
Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d
810, 813.
UNION SOLDIERS. Those who fought in the
American Civil War in support of the Union, in
contradistinction to Confederate soldiers, who
fought for the establishment of the new confed-
eracy. Keely v. Board of Sup'rs of Dubuque
County, 158 Iowa 205, 139 N.W. 473, 474.
UNIT. A single thing of any kind. State ex rel.
S. Monroe & Son Co. v. Tracy, 129 Ohio St. 550, 196
N.E. 650. A term sometimes used in the sense of
a share, as in an oil syndicate, Chew v. U. S., C.C.
A.Ark., 9 F.2d 348, 351, or as equivalent to an in-
vestment security. State v. Summerland, 150
Minn. 266, 185 N.W. 255, 256.
UNIT CF PRODUCTION. The "unit of produc-
tion" method of determining the taxable net in-
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come or profit in the oil or gas business is ac-
complished by a system of accounting by which is
ascertained, as nearly as science will permit, the
total amount of recoverable oil in the property,
and to each barrel of this oil is assigned its part
of the capital investment, and from the sale price
of each barrel produced and sold there is deducted
the expenses of producing it, and its proportion of
the capital investment, leaving the balance as
profit, and thus, when the property is exhausted,
the operator has received back his capital and ex-
penses, and accounted for his net income or loss.
Carter v. Phillips, 88 Okl. 202, 212 P. 747, 750.
UNIT RULE. A method of valuing securities by
multiplying the total number of shares held by the
sale price of one share sold on a licensed stock ex-
change, ignoring all other facts regarding value.
Citizens Fidelity Bank & Trust Co. v. Reeves, Ky.,
259 S.W.2d 432, 434.
UNITAS PERSONARUM. Lat. The unity of per-
sons, as that between husband and wife, or an-
cestor and heir.
UNITE. To join in an act, to concur, to act in
concert. Bowling v. Wilkerson, D.C.Ky., 19 F.
Supp. 584, 587.
UNITED GREEK CATHOLIC CHURCH. All the
churches of the Byzantine Rite in communion with
the See of Rome. The term is synonymous with
"Uniate Greek Catholic Church" or "Uniat Greek
Catholic Church," and signifies an ecclesiastical
body in union with the Roman Catholic Church
and acknowledging the primacy and supremacy
of the pope. Morris v. Featro, 340 Pa. 354, 17 A.2d
403, 405.
UNITED IN INTEREST. A statutory term ap-
plicable to codefendants only when they are sim-
ilarly interested in and will be similarly affected
by the determination of the issues involved in the
action; McCord v. McCord, 104 Ohio St. 274, 135
N.E. 548, 549; e. g., joint obligors upon a guar-
anty; Columbia Graphophone Co. v. Slawson, 100
Ohio St. 473, 126 N.E. 890, 891.
UNITED KINGDOM OF GREAT BRITAIN AND
IRELAND. The official title of the kingdom com-
posed of England, Scotland, Ireland, and Wales,
and including the colonies and possessions beyond
the seas, under the act of January 1, 1801, effecting
the union betwen Ireland and Great Britain.
UNITED NATIONS. An organization started by
the allied powers in World War II for the stated
purposes of preventing war, providing justice and
promoting welfare and human rights of peoples.
It consists of a Security Council and a General
Assembly and subordinate agencies.
UNITED STATES. This term has several mean-
ings. It may be merely the name of a sovereign
occupying the position analogous to that of other
sovereigns in family of nations, it may designate
territory over which sovereignty of United States
extends, or it may be collective name of the states
which are united by and under the Constitution.
Hooven & Allison Co. v. Evatt, U. S. Ohio, 65 S.Ct.
870, 880, 324 U.S. 652, 89 L.Ed. 1252.
UNITED STATES BONDS. Obligations for pay-
ment of money which have been at various times
issued by the government of the United States.
UNITED STATES COMMISSIONER. Whose
powers in federal matters, are in most respects
the same as those of justices of the peace in fel-
ony offenses against laws of state, is not a judge
or court, and does not hold court, but is an ad-
junct of court, possessing independent, though
subordinate, judicial powers of his own. U. S. v.
Napela, D.C.N.Y., 28 F.2d 898, 899.
UNITED STATES COURTS. Except in the case
of impeachments the judicial power of the United
States is vested by the Constitution in a supreme
court and such other inferior courts as may be
from time to time established by congress. All
the judges are appointed by the president, with
the advice and consent of the senate, to hold of-
fice during good behavior, and their compensation
cannot be diminished during their terms of office.
The judges, other than those of the supreme
court, are circuit judges and district judges. The
circuit judges compose the courts of appeals and
the district judges hold the district courts, and
also at times sit in the circuit courts of appeal.
For a detailed statement of the territorial bound-
aries of the several districts and divisions of dis-
tricts, see 28 U.S.C.A. § 81 et seq. and various spe-
cial acts.
It shall be the duty of the district court of each judi-
cial district to appoint such number of persons, to be
known as United States commissioners, at such places in
the district as may be designated by the district court.
Rev.St.U.S. § 627 (28 USCA § 631). Austill v. United
States, 58 Ct.C1. 232; United States v. Maresca, D.C.N.Y.,
266 F. 713.
In statutes, the words "court of the district", Prieto v.
U. S. Shipping Board Emergency Fleet Corporation, 117
Misc. 703, 193 N.Y.S. 342, and "courts of the United
States," are commonly deemed to refer to federal courts
and not to state courts. General Inv. Co. v. Lake Shore &
M. S. Ry. Co., C.C.A.Ohio, 269 F. 235, 237.
UNITED STATES CURRENCY. Commonly un-
derstood to include every form of currency au-
thorized by the United States government, wheth-
er issued directly by it or under its authority.
Appel v. State, 28 Ariz. 416, 237 P. 190, 191.
UNITED STATES NOTES. Promissory notes, re-
sembling bank-notes, issued by the government of
the United States.
UNITED STATES OFFICER. Usually and strict-
ly, in United States statutes, a person appointed
in the manner declared under Const. art. 2, § 2,
McGrath v. U. S., C.C.A.N.Y., 275 F. 294, 300, pro-
viding for the appointment of officers, either by
the President and the Senate, the President alone,
the courts of law, or the heads of departments,
Steele v. U. S., 45 S.Ct. 417, 418, 267 U.S. 505, 69
L.Ed. 761. Dropps v. U. S., C.C.A.Minn., 34 F.2d
15, 17.
UNITY. In the law of estates. The peculiar
characteristic of an estate held by several in joint
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UNITY OF INTEREST
tenancy, and which is fourfold, viz., unity of in-
terest, unity of title, unity of time, and unity of
possession. In other words, joint tenants have
one and the same interest, accruing by one and
the same conveyance, commencing at one and
the same time, and held by one and the same un-
divided possession. 2 Bl. Comm. 180.
UNITY OF INTEREST. Required in case of joint
tenancy means that interests must accrue by one
and same conveyance. Hernandez v. Becker, C.C.
A.N.M., 54 F.2d 542, 547. It also signifies that
no one of joint tenants can have a greater in-
terest in the property than each of the others,
while, in the case of tenants in common, one of
them may have a larger share than any of the
(others. Williams, Real Prop. 134, 139.
UNITY OF POSSESSION. Joint possession of
two rights by several titles. As if I take a lease,
of land from a person at a certain rent, and after-
wards I buy the fee-simple of such land, by this
I acquire unity of possession, by which the lease
is extinguished. Cowell; Brown. It is also one
of the essential properties of a joint estate, requir-
ing that the joint tenants must hold the same
undivided possession of the whole and enjoy same
rights until death of one. Hernandez v. Becker,
C.C.A.N.M., 54 F.2d 542, 547.
UNITY OF SEISIN. Where a person seised of
land which is subject to an easement, profit a
p'r endre, or similar right, also becomes seised of
the land to which the easement or other right is
annexed. Sweet.
UNITY OF TIME. One of the essential proper-
ties of a joint estate; the estates of the tenants
being vested at one and the same period. 2 Bl.
Comm. 181; Hernandez v. Becker, C.C.A.N.M., 54
F.2d 542, 547.
UNITY OF TITLE. Applied to joint tenants, sig-
nifies that they hold their property by one and
the same title, while tenants in common may take
property by several titles. Williams, Real Prop.
134.
Legal requirements of easement of "right of way of
necessity" are unity of title, by which is meant that own-
er of dominant estate must show that his land and that
of owner of servient estate once belonged to same person,
severance of title, and necessity. Brasington v. Williams,
143 S.C. 223, 141 S.E. 375, 382.
UNIUS OMNINO TESTIS RESPONSIO NON AU-
DIATUR. The answer of one witness shall not be
heard at all; the testimony of a single witness
shall not be admitted under any circumstances.
A maxim of the civil and canon law. Cod. 4, 20,
9; 3 Bl. Comm. 370; Best, Ev. p. 426, § 390, and
note.
UNIUSCUJUSQUE CONTRACTUS INITIUM
SPECTANDUM EST, ET CAUSA. The com-
mencement and cause of every contract are to be
regarded. Dig. 17, 1, 8; Story, Bailm. § 56.
UNIVERSAL. Having relation to the whole or an
entirety; pertaining to all without exception; a
term more extensive than "general," which latter
may admit of exceptions. See Blair v. Howell, 68
Iowa, 619, 28 N.W. 199; Koen v. State, 35 Neb.
676, 53 N.W. 595, 17 L.R.A. 821.
UNIVERSAL AGENT. One who is appointed to
do all the acts which the principal can personally
do, and which he may lawfully delegate the power
to another to do. Story, Ag. 18; Baldwin v. Tuck-
er, 112 Ky. 282, 65 S.W. 841, 57 L.R.A. 451.
UNIVERSAL LEGACY. See Legacy.
UNIVERSAL PARTNERSHIP. See Partnership.
UNIVERSAL REPRESENTATION. In Scotch
law. A term applied to the representation by an
heir of his ancestor. Bell.
UNIVERSAL SUCCESSION. In the civil law.
Succession to the entire estate of another, liv-
ing or dead, though generally the latter, import-
ing succession to the entire property of the pred-
ecessor as a juridical entirety, that is, to all his
active as well as passive legal relations. Mack-
eld. Rom. Law, § 649.
UNIVERSALIA SUNT NOTIORA SINGULARI-
BUS. 2 Rolle, 294. Things universal are better
known than things particular.
UNIVERSITAS. Lat. In the civil law. A cor-
poration aggregate. Dig. 3, 4, 7. Literally, a
whole formed out of many individuals. 1 Bl.
Comm. 469.
UNIVERSITAS FACTI. In the civil law. A
plurality of corporeal things of the same kind,
which are regarded as a whole; e. g., a herd of
cattle, a stock of goods. Mackeld. Rom. Law, §
162.
UNIVERSITAS JURIS. In the civil law. A quan-
tity of things of all sorts, corporeal as well as
incorporeal, which, taken together, are regarded
as a whole; e. g., an inheritance, an estate. Mack-
eld. Rom. Law, § 162.
UNIVERSITAS RERUM. In the civil law. Lit-
erally, a whole of things. Several single things,
which, though not mechanically connected with
one another, are, when taken together, regarded
as a whole in any legal respect. Mackeld. Rom.
Law, § 162.
UNIVERSITAS VEL CORPORATIO NON DICIT-
UR ALIQUID FACERE NISI ID SIT COLLEG-
IALITER DELIBERATUM, ETIAMSI MAJOR
PARS ID FACIAT. A university or corporation is
not said to do anything unless it be deliberated
upon as a body, although the majority should do
it. Da y . 48.
UNIVERSITY. An institution of higher learning,
consisting of an assemblage of colleges united
under one corporate organization and government,
affording instruction in the arts and sciences and
the learned professions, and conferring degrees.
See Corn. v. Banks, 198 Pa. 397, 48 A. 277.
Whole body of teachers and scholars, engaged at particu-
lar place in giving and receiving instruction in higher
branches of learning ; also such persons, associated to-
gether as society or corporate body with definite organ-
ization and acknowledged powers and privileges, especially
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of conferring degrees, and forming institution for promo-
tion of education in higher and more important branches
of learning. West v. Board of Trustees of Miami Univer-
sity and Miami Normal School, 41 Ohio App. 367, 181 N.E.
144, 149.
UNIVERSITY COURT. See Chancellor's Courts
in the Two Universities.
UNIVERSUS. Lat. The whole; all together.
Calvin.
UNJUST. Contrary to right and justice, or to the
enjoyment of his rights by another, or to the
standards of conduct furnished by the laws. U.
S. v. Oglesby Grocery Co., D.C.Ga., 264 F. 691, 695;
Komen v. City of St. Louis, 316 Mo. 9, 289 S.W.
838, 841.
UNJUST ENRICHMENT, DOCTRINE OF. Doc-
trine that person shall not be allowed to profit or
enrich himself inequitably at anothes expense.
American University v. Forbes, 88 N.H. 17, 183 A.
860, 862. Under this doctrine a defendant has
something of value at the plaintiff's expense un-
der circumstances which impose a legal duty of
restitution. Herrmann v. Gleason, C.C.A.Mich.,
126 F.2d 936, 940. Doctrine permits recovery in
certain instances where person has received from
another a benefit retention of which would be un-
just. Seekins v. King, 66 R.I. 105, 17 A.2d 869,
871, 134 A.L.R. 1060. Doctrine is not contractual
but is equitable in nature. State v. Martin, 59
Ariz. 438, 130 P.2d 48, 52.
"Unjust enrichment" of a person occurs when he has
and retains money or benefits which in justice and equity
belong to another. Hummel v. Hummel, 133 Ohio St. 520,
14 N.E.2d 923, 927. Thus one who has conferred a benefit
upon another solely because of a basic mistake of fact
induced by a nondisclosure is entitled to restitution on
above doctrine. Conkling's Estate v. Champlin, 193 Okl.
79, 141 P.2d 569, 570.
UNKOUTH. Unknown. The law French form of
the Saxon "uncouth." Britt. c. 12.
UNLAGE. Sax. An unjust law.
UNLARICH. In old Scotch law. That which is
done without law or against law. Spelman.
UNLAW. In Scotch law. A witness was formerly
inadmissible who was not worth the king's unlaw;
i. e., the sum of £10 Scots, then the common fine
for absence from court and for small delinquen-
cies. Bell.
UNLAWFUL. That which is contrary to law or
unauthorized by law. State v. Chenault, 20 N.M.
181, 147 P. 283, 285. That which is not lawful.
State v. Bulot, 175 La. 21, 142 So. 787, 788. The
acting contrary to, or in defiance of the law; dis-
obeying or disregarding the law. While neces-
sarily not implying the element of criminality, it
is broad enough to include it. Sturgeon v. Cros-
by Mortuary, 140 Neb. 82, 299 N.W. 378, 383.
"Unlawful" and "illegal" are frequently used as synony-
mous terms, but, in the proper sense of the word, "un-
lawful," as applied to promises, agreements, considera-
tions, and the like, denotes that they are ineffectual in
law because they involve acts which, although not illegal,
i. e., positively forbidden, are disapproved of by the law,
and are therefore not recognized as the ground of legal
rights, either because they are immoral or because they
are against public policy. It is on this ground that con-
tracts in restraint of marriage or of trade are generally
void. Sweet. And see Hagerman v. Buchanan, 45 isT.J.Eq.
292, 17 A. 946, 14 Am.St.Rep. 732; Tatum v. State, 66
Ala. 467. People v. Chicago Gas Trust Co., 130 Ill. 268, 22
N.E. 798, 8 L.R.A. 497, 17 Am.St.Rep. 319.
UNLAWFUL ACT. Act contrary to law, and pre-
supposes that there must be an existing law.
State v. Campbell, 217 Iowa 848, 251 N.W. 717, 92
A.L.R. 1176.
In criminal jurisprudence, a violation of some
prohibitory law and includes all willful, actionable
violations of civil rights, and is not confined to
criminal acts. State v. Hailey, 350 Mo. 300, 165
S.W.2d 422, 427.
The "unlawful acts" within manslaughter statutes con-
sist of reckless conduct or conduct evincing marked dis-
regard for safety of others. State v. Newton, 105 Utah 561,
144 P.2d 290, 293; State v. Thatcher, 108 Utah 63, 157 P.2d
258, 261.
UNLAWFUL ASSEMBLY. At common law. The
meeting together of three or more persons, to the
disturbance of the public peace, and with the in-
tention of co-operating in the forcible and violent
execution of some unlawful private enterprise.
If they take steps towards the performance of
their purpose, it becomes a rout; and, if they put
their design into actual execution, it is a riot. 4
Bl. Comm. 146. To constitute offense it must apr
pear that there was common intent of persons as-
sembled to attain purpose, whether lawful or un-
lawful, by commission of acts of intimidation and
disorder likely to produce danger to peace of
neighborhood, and actually tending to inspire
courageous persons with well-grounded fear of
serious breaches of public peace. State v. Butter-
worth, 104 N.J.L. 579, 142 A. 57, 60, 58 A.L.R. 744.
Three or more persons who assemble peaceably without
violent or tumultuous manner to do lawful act, but who
thereafter make attempt or motion to do any act whether
lawful or unlawful, in either tumultuous, violent, or un-
ful manner to the terror or disturbance of others, become
an "unlawful assembly." Koss v. State, 217 Wis. 325, 258
N.W. 860, 862.
UNLAWFUL BELLIGERENTS. Enemies pass-
ing the boundaries of the United States for pur-
pose of destroying war industries and supplies
without a uniform or other emblem signifying
their belligerent status or discarding that means
of identification after entry. Ex parte Quirin,
App.D.C., 63 S.Ct. 2, 15, 317 U.S. 1, 87 L.Ed. 3.
UNLAWFUL DETAINER. The unjustifiable re-
tention of the possession of lands by one whose
original entry was lawful and of right, but whose
right to the possession has terminated and who
refuses to quit, as in the case of a tenant holding
over after the termination of the lease and in spite
of a demand for possession by the landlord. Mc-
Devitt v. Lambert, 80 Ala. 536, 2 So. 438; Silva
v. Campbell, 84 Cal. 420, 24 Pac. 316; Brandley v.
Lewis, 97 Utah 217, 92 P.2d 338, 339.
Actions of "unlawful detainer" concern only right of
possession of realty, and differ from ejectment in that no
ultimate question of title or estate can be determined.
McCracken v. Wright, 159 Kan.- 615, 157 P.2d 814, 817.
Where an entry upon lands is unlawful, whether forcible
or not, and the subsequent conduct is forcible and tor-
tious, the offense committed is a "forcible entry and de-
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UNLAWFUL
tainer;" but where the original entry is lawful, and the
subsequent holding forcible and tortious, the offense is an
"unlawful detainer" only. Pullen v. Boney, 4 N.J.L. 129.
UNLAWFUL ENTRY. An entry upon lands ef-
fected peaceably and without force, but which is
without color of title and is accomplished by
means of fraud or some other willful wrong.
Blaco v. Haller, 9 Neb. 149, 1 N.W. 978.
UNLAWFUL PICKETING. Picketing which is
not honest or truthful. Park & Tilford Import
Corporation v. International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local No. 848, A. F. of L., Cal.
App., 139 P.2d 963, 971, Magill Bros. v. Building
Service Employees' International Union, 20 Ca1.2d
506; 127 P.2d 542, 543. Picketing which involves
false statements or misrepresentations of facts.
Wiest v. Dirks, 215 Ind. 568, 20 N.E.2d 969, 971.
Picketing when it ceases to serve the purpose it
seeks to accomplish. E. M. Loew's Enterprises v.
International Alliance of Theatrical Stage Em-
ployees, 125 Conn. 391, 6 A.2d 321, 323, 122 A.L.R.
1287. When force or violence is used to persuade
or prevent workmen from continuing their em-
ployment. Ex parte Bell, 37 Cal.App.2d 582, 100
P.2d 339, 343.
UNLAWFUL TOUCHING OF PERSON'S BODY.
Constituting physical injury to person may be in-
direct, as by precipitation on body of person of any
material substance. Christy Bros. Circus v. Turn-
age, 38 Ga.App. 581, 144 S.E. 680, 681.
UNLAWFUL TRANSPORTATION OF INTOXI-
CATING LIQUORS. To constitute this offense
there must be a substantial movement or trans-
porting of the liquor from one place or vicinity to
another. Nelson v. State, 116 Neb. 219, 216 N.W.
556, 557.
UNLAWFULLY. Illegally; wrongfully. Dickin-
son v. New York, 92 N.Y. 584; Dameron v. Hamil-
ton, 264 Mo. 103, 174 S.W. 425, 430; See State v.
Massey, 97 N.C. 465, 2 S.E. 445.
This word is frequently used in indictments in the de-
scription of the offence; it is necessary when the crime
did not exist at common law, and when a statute, in de-
scribing an offence which it creates, uses the word; 1
Mood.C.C. 339; but is unnecessary whenever the crime
existed at common law and is manifestly illegal; 1 Chit.
Cr.L. *241.
UNLESS. If it be not that, if it be not the case
that, if not, supposing not, if it be not, except.
West Lumber Co. v. Keen, Tex.Com.App., 237 S.
W. 236; Ward v. Interstate Business Men's Acc.
Ass'n, 185 Iowa, 674, 169 N.W. 451, 452. A reser-
vation or option to change one's mind provided a
certain event happens, a conditional promise. Fed-
eral Sign System v. Amavet, 7 La.App. 680, 682.
UNLESS LEASE. An oil and gas lease which pro-
vides that lease will be rendered null and void and
lessee will automatically be relieved from liabil-
ity, upon failure to commence operations or to
pay rent. It must be 'expressly stipulated in the
lease that lease shall become null and void at a
certain time "unless" the lessee begins operations
or pays the rental stipulated. Brunson v. Carter
Oil Co., D.C.Okl., 259 F. 656, 663.
Where the word "unless" precedes the description of the
act to be performed under an oil lease, no obligation to
perform that act is imposed by the lease. McCrabb v.
Moulton, C.C.A.Mo., 124 F.2d 689, 691.
UNLIMITED. Without confines, unrestricted,
boundless. Flynn v. Caplan, 234 Mass. 516, 126
N.E. 776, 777.
UNLIQUIDATED. Not ascertained in amount.,
not determined; remaining unassessed or unset-
tled; as unliquidated damages; Davies v. Turner,
61 Ga.App. 531, 6 S.E.2d 356, 358.
A debt is spoken of as "unliquidated," if the amount
thereof cannot be ascertained at the trial by a mere com-
putation, based on the terms of the obligation or on some
other accepted standard. Hettrick Mfg. Co. v. Barish, 120
Misc. 673, 199 N.Y.S. 755, 767.
Under the law of accord and satisfaction, a claim or
debt will be regarded as unliquidated if it is in dispute as
to the proper amount. Paulsen Estate v. Naches—Selah Irr.
Dist., 190 Wash. 205, 67 P.2d 856, 858.
A claim in bankruptcy is "unliquidated" until final fixa-
tion of amount of liability. United States v. Sullivan, D.C.
N.Y., 19 F.Supp. 695, 698. See, also, Damages.
UNLIQUIDATED DEMAND. Where it is admit-
ted that one of two specific sums is due, but there
is a dispute as to which is proper amount. Perry-
man Burns Coal Co. v. Seaboard Coal Co. of Con-
necticut, 128 Conn. 70, 20 A.2d 404, 405.
UNLIVERY. A term used in maritime law to des-
ignate the unloading of cargo of a vessel at the
place where it is properly to be delivered. The
Two Catharines, 24 F.Cas. 429.
UNLOADING. Act of discharging a cargo, tak-
ing a load from, disburdening or removing from.
American Oil & Supply Co. v. United States Cas-
ualty Co., 19 N.J.Misc. 7, 18 A.2d 257, 259.
An unloading clause in an automobile liability policy
covers the entire process involved in the movement of ar-
ticles by and from a motor vehicle to the place where
they are turned over to the one to whom the insured is
to make delivery, if the clause is construed in accordance
with what may be called the "complete operation" rule.
Pacific Auto. Ins. Co. v. Commercial Cas. Ins. Co. of N.
Y., 161 P.2d 423, 108 Utah 500, 160 A.L.R. 1251. There
are, however, two other rules or doctrines used by vari-
ous courts in applying the unloading clause of such a
policy. One is known as the "coming to rest" rule, and
the other is the "continuous passage" rule. Blashfield,
Cyc. of Automobile Law and Prac., Perm. Ed., § 3972.5.
But the complete operation rule is said to be the modern
doctrine, supported by the trend of the later cases. Lon-
don Guarantee & Acc. Co. v. C. B. White & Bros., 49
S.E.2d 254, 188 Va. 195.
UNLOOKED FOR MISHAP OR UNTOWARD
EVENT. One occurring unexpectedly and not
naturally or in ordinary course of events. Fogg
v. Van Saun Coal Co., 12 N.J.Misc. 680, 174 A. 419,
421.
UNMARKETABLE TITLE. When for vendee to
accept title proffered would lay him open to fair
probability of vexatious litigation with possibility
of serious loss. Schoenberg v. O'Connor, 14 N.J.
Misc. 412, 185 A. 377, 381. It being sufficient to
render it so if ordinarily prudent man with knowl-
edge of the facts and aware of legal questions in-
volved would not accept it in the ordinary course
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UNREASONABLE
of business but title need not be bad in fact; Bar-
rett v. McMannis, 153 Kan. 420, 110 P.2d 774, 777,
778; Ayers v. Graff, 153 Kan. 209, 109 P.2d 202,
203; Ghormley v. Kleeden, 155 Kan. 319, 124 P.2d
467, 470.
Where some defect of substantial character exists and
facts are known which fairly raise reasonable doubt as
to title. Schul v. Clapp, 154 Kan. 372, 118 P.2d 570, 574.
And mere quibbles and pecadilloes which the ingenuity of
counsel can raise against a title do not render it an "un-
marketable title". Barrett v. McMannis, 153 Kan. 420, 110
P.2d 774, 778.
UNMARRIED. Its primary meaning is never
having been married; but it is a word of flexible
meaning and it may be construed as not having a
husband or wife at the time in question. 9 H.L.
Cas. 601; People v. Weinstock, Mag.Ct., 140 N.Y.S.
453, 458.
A divorced woman has been held an unmarried woman.
In re Giles, 85 C.C.A. 418, 158 F. 596; State v. Wallace, 79
Or. 129, 154 P. 430, L.R.A.1916D, 457. Douglas v. Board of
Foreign Missions of Presbyterian Church in U. S. of Ameri-
ca, 110 N.J.Eq. 331, 160 A. 37, 39.
UNNATURAL OFFENSE. The infamous crime
against nature; e., sodomy or buggery.
UNNATURAL WILL. An expression applied to
disposition of estate or large portion thereof to
strangers, to exclusion of natural objects of tes-
tator's bounty without apparent reason. In re
Shay's Estate, 196 Cal. 355, 237 P. 1079, 1083.
UNNECESSARY. Not required by the circum-
stances of the case. Hickman v. Ohio State Life
Ins. Co., 92 Ohio St. 87, 110 N.E. 542, 543.
UNNECESSARY HARDSHIP. Within zoning or-
dinance so as to authorize granting of variance
on such ground if land cannot yield a reasonable
return if used only for a purpose allowed in zone,
the plight of owner is due to unique circumstances
not to general conditions in the neighborhood and
use to be authorized will not alter essential char-
acter of the locality. Calcagno v. Town Board of
Town of Webster, 265 App.Div. 687, 41 N.Y.S.2d
140, 142.
It has also been said that test whether terms of zoning
ordinance impose an "unnecessary hardship". depends on
whether use restriction is so unreasonable as to constitute
an arbitrary interference with basic right of private prop-
erty. Scaduto v. Town of Bloomfield, 127 N.J.L. 1, 20 A.2d
649, 650.
UNO ABSURDO DATO, INFINITA SEQUUNT-
UR. 1 Coke, 102. One absurdity being allowed,
an infinity follows.
UNO ACTU. Lat. In a single act; by one and the
same act.
UNO FLATU. Lat. In one breath. 3 Man. & G.
45. Uno flatu, et uno intuitu, at one breath, and
in one view. Pope v. Nickerson, 3 Story, 504, F.
Cas.No. 11,274.
UNOCCUPIED. Within fire policy exempting in-
surer from liability in case dwelling is "unoccu-
pied," means when it is not used as a residence,
when it is no longer used for the accustomed and
ordinary purposes of a dwelling or place of abode,
or when it is not the place of usual return and
habitual stoppage. Vinton v. Atlas Assur, Co.,
107 Vt. 272, 178 A. 909, 911. Hence a mere tem-
porary absence of occupants of dwelling house
from such premises, with intention to return
thereto does not render dwelling "unoccupied".
Foley v. Sonoma County Farmers' Mut. Fire Ins.
Co., 18 Ca1.2d 232, 115 P.2d 1, 2, 3.
See Occupation.
UNPRECEDENTED. Having no precedent or ex-
ample, novel, new, unexampled. State v. Malone,
Tex.Civ.App., 168 S.W.2d 292, 300. Unusual and
extraordinary; affording no reasonable warning
or expectation of recurrence. Nashville, C. & St.
L. Ry. v. Yarbrough, 194 Ala. 162, 69 So. 582, 584.
UNPRECEDENTED RAINFALL. An unusual
and extraordinary rainfall as has no example or
parallel in the history of rainfall in the vicinity
affected, or as affords no reasonable warning or
expectation that it will likely occur again. City of
Birmingham v. Jackson, 229 Ala. 133, 155 So. 527.
Trout Brook Co. v. Willow River Power Co., 221
Wis. 616, 267 N.W. 302, 305.
UNPROFESSIONAL CONDUCT. That which is
by general opinion considered to be grossly unpro-
fessional because immoral or dishonorable. State
Board of Dental Examiners v. Savelle, 90 Colo.
177, 8 P.2d 693, 697. That which violates ethical
code of profession or such conduct which is un-
becoming member of profession in good standing.
People v. Gorman, 346 Ill. 432, 178 N.E. 880, 885.
It involves breach of duty which professional
ethics enjoin. People v. Johnson, 344 Ill. 132, 176
N.E. 278, 282.
UNQUES. L. Fr. Ever; always. Ne unques,
never.
UNQUES PRIST. L. Fr. Always ready. Cowell.
Another form of tout temps prist.
UNREASONABLE. Irrational; foolish; unwise;
absurd; silly; preposterous; senseless; stupid.
Southern Kansas State Lines Co. v. Public Serv-
ice Commission, 135 Kan. 657, 11 P.2d 985, 987.
Not reasonable; immoderate; exorbitant. Cass
v. State, 124 Tex.Cr.R. 208, 61 S.W.2d 500. Capri-
cious; arbitrary; confiscatory. Harris v. State
Corporation Commission, 46 N.M. 352, 129 P.2d
323, 328.
UNREASONABLE REFUSAL TO SUBMIT TO
OPERATION. An injured employee's refusal to
submit to an operation is unreasonable, so as to
deprive him of right to workmen's compensation
if it appears that an operation of a simple charac-
ter not involving serious suffering or danger will
result in substantial physical improvement. Black
Star Coal Co. v. Surgener, 297 Ky. 653, 181 S.W.2d
53, 54.
UNREASONABLE RESTRAINT OF TRADE.
Within Sherman Anti-Trust Act agreements for
price maintenance of articles moving in inter-
state commerce. Sherman Anti-Trust Act, § 1, 15
U.S.C.A. § 1. American Tobacco Co. v. U. S., C.
C.A.Ky., 147 F.2d 93, 108. Any combination or
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UNREASONABLE
conspiracy that operates directly on prices or
price structure and has for its purpose the fixing
of prices. United States v. Waltham Watch Co.,
D.C.N.Y., 47 F.Supp. 524, 531.
UNREASONABLE RESTRAINT ON ALIENA-
TION. Brought about by gift of absolute owner-
ship in property followed by such condition as
takes away incidents of such ownership. Bliven
v. Borden, 56 R.I. 283, 185 A. 239, 244.
UNREASONABLE SEARCH. See Search.
UNRULY AND DANGEROUS ANIMALS. With-
in the meaning of the law, such as are likely to
injure other domestic animals and persons. Fink
v. United States Coal & Coke Co., 72 W.Va. 507,
78 S.E. 702, 703.
UNSAFE. Dangerous. Hanson v. City of Ana-
mosa, 158 N.W. 591, 595, 177 Iowa 101; Houston
& T. C. R. Co. v. Smallwood, Tex.Civ.App., 171
S.W. 292, 293.
UNSEATED LAND. A phrase used in the Penn-
sylvania tax laws to describe land which, though
owned by a private person, has not been reclaim-
ed, cultivated, improved, occupied, or made a place
of residence. See Seated Land, supra. And see
Stoetzel v. Jackson, 105 Pa. 567; McLeod v. Lloyd,
43 Or. 260, 71 P. 799. A tract of land ceases to
be unseated as soon as it is actually occupied with
a view to permanent residence. Wallace v. Scott,
7 Watts & S. (Pa.) 248.
UNSEAWORTHY. Of a vessel, unable to with-
stand the perils of an ordinary voyage at sea.
Fireman's Fund Ins. Co. v. Compania de Navega-
cion, Interior, S. A., C.C.A.La., 19 F.2d 493, 495;
Or if she could not reasonably have been ex-
pected to make the voyage. Interlake Iron Cor-
poration v. Gartland S. S. Co., C.C.A.Mich., 121
F.2d 267, 269, 270. Or if not manned by a com-
petent crew. Peninsular & Occidental S. S. Co.
v. National Labor Relations Board, C.C.A.5, 98 F.
2d 411, 414. But a ship is not "unseaworthy"
where defect in ship is such that defect can be
remedied on the spot in a short time by materials
available. Middleton & Co. (Canada) Limited v.
Ocean Dominion Steamship Corporation, C.C.A.
N.Y., 137 F.2d 619, 622.
UNSOLEMN WAR. War denounced without a
declaration; war made not upon general but spe-
cial declaration; imperfect war. People v. Mc-
Leod, 1 Hill, N.Y., 409, 37 Am.Dec. 328.
UNSOLEMN WILL. In the Civil law. One in
which an executor is not appointed. Swimb. Wills
29.
UNSOUND MIND. A person of unsound mind is
one who from infirmity of mind is incapable of
managing himself or his affairs. The term, there-
fore, includes insane persons, idiots, and imbeciles.
Sweet. See Insanity. And see Cheney v. Price, 90
Hun 238, 37 N.Y.S. 117; In re Black's Estate, 1
Myr.Prob. (Cal.) 24. Stewart v. Lispenard, 26
Wend. (N.Y.) 300; Ray v. State, 32 Ga.App. 513,
124 S.E. 57. It exists where there is an essential
privation of the reasoning faculties, or where a
person is incapable of understanding and acting
with discretion in the ordinary affairs of life.
Oklahoma Natural Gas Corporation v. Lay, 175
Okl. 75, 51 P.2d 580, 582.
But eccentricity, uncleanliness, slovenliness,
neglect of person and clothing, and offensive and
disgusting personal habits do not constitute un-
soundness of mind. Pendarvis v. Gibb, 328 Ill.
282, 159 N.E. 353, 357.
UNTHRIFT. A prodigals a spendthrift. 1 Bl.
Comm. 306.
UNTIL. Up to time of. A word of limitation,
used ordinarily to restrict that which precedes to
what immediately follows it, and its office is to
fix some point of time or some event upon the
arrival or occurrence of which what precedes will
cease to exist. State v. Kehoe, 144 P. 162, 164, 49
Mont. 582; Irwin v. Irwin, 167 N.Y.S. 76, 78, 179
App.Div. 871; Empire Oil and Refining Co. v. Bab-
son, 182 Okl. 336, 77 P.2d 682, 684.
UNTOWARD EVENT. See Unlooked for Mishap.
UNTRUE. Prima facie inaccurate, but not nec-
essarily wilfully false. 3 B. & S. 929.
A statement is "untrue" which does not express things
exactly as they are. Zolintakis v. Equitable Life Assur.
Soc. of United States, C.C.A.Utah, 108 F.2d 902, 905.
UNUMQUODQUE DISSOLVITUR EODEM LIGA-
MINE QUO LIGATUR. Every obligation is dis-
solved by the same solemnity with which it is
created. Broom, Max. 884.
UNUMQUODQUE EODEM MODO QUO COLLI-
GATU EST, DISSOLVITUR,—QUO CONSTITUI-
TUR, DESTRUITUR. Everything is dissolved by
the same means by which it is put together,—de-
stroyed by the same means by which it is estab-
lished. 2 Rolle, 39; Broom, Max. 891.
UNUMQUODQUE EST ID QUOD EST PRINCI-
PALIUS IN IPSO. Hob. 123. That which is the
principal part of a thing is the thing itself.
UNUMQUODQUE PRINCIPIORUM EST SIBI-
METIPSI FIDES; ET PERSPICUA VERA NON
SUNT PROBANDA. Every general principle [or
maxim of law] is its own pledge or warrant; and
things that are clearly true are not to be proved.
Branch; Co. Litt. 11.
UNUS NULLUS RULE, THE. The rule of evi-
dence which obtains in the civil law, that the
testimony of one witness is equivalent to the tes-
timony of none. Wharton.
UNUSUAL. Uncommon; not usual, rare. Thomp-
son v. Anderson, 107 Utah 331, 153 P.2d 665, 666.
UNUSUAL CIRCUMSTANCE. Requiring appor-
tionment between life tenants and remaindermen
of dividends declared upon stock held in corpus
of trust is not one set up by fiduciary or court,
but comes from some administrative or corporate
act within corporation or some break down with-
in corporate structure. In re Knox' Estate, 328
Pa. 177, 195 A. 28, 30, 113 A.L.R. 1185.
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USAGE
UNVALUED POLICY. One where the value of
property insured is not settled in policy, and in
case of loss must be agreed on or proved. Hart-
ford Live Stock Ins. Co. v. Gibson, 256 Ky. 338,
76 S.W.2d 17, 18.
UNWHOLESOME FOOD. Food not fit to be eat-
en; food which if eaten would be injurious.
UNWORTHY. Unbecoming, discreditable, not
having suitable qualities or value. Alsup v. State,
91 Tex.Cr.R. 224, 238 S.W. 667, 669.
UNWRITTEN LAW. All that portion of the law,
observed and administered in the courts, which
has not been enacted or promulgated in the form
of a statute or ordinance, including the unenacted
portions of the common law, general and particu-
lar customs having the force of law, and the rules,
principles, and maxims established by judicial
precedents or the successive like decisions of the
courts. See Code Civ. Proc. Cal. § 1899; B. & C.
Comp. Or. 1901, § 736 (Code 1930, § 9-609).
A popular expression to designate a supposed
rule of law that a man who takes the life of his
wife's paramour or daughter's seducer is not guil-
ty of a criminal offence. Almerigi v. State, 17
Okl.Cr. 458, 188 P. 1094, 1096. A trial judge is
said to have expressed to a jury his approval of
a verdict based upon such a theory; see 43 Cana-
da L. J. 764; see 19 Green Bag 721, an article
from the London L. J.; see also 12 Law Notes
224.
The rule was much urged upon a jury in the common
pleas of Philadelphia : Biddle, J., said to counsel : "In this
court the 'unwritten law' is not worth the paper it isn't
written on." It was held that such defense is not avail-
able to one accused of homicide in Wehenkel v. State, 116
Neb. 493, 218 N.W. 137, 138, and in People v. Young, 70 Cal.
App.2d 28, 160 P.2d 132, 136.
UPKEEP. The act of keeping up or maintaining;
maintenance, repair. Central Hanover Bank &
Trust Co. v. Nisbet, 121 Conn. 682, 186 A. 643, 645.
UPLANDS. Lands bordering on bodies of waters.
Martin v. Busch, 93 Fla. 535, 112 So. 274, 285.
UPLIFTED HAND. The hand raised towards the
heavens, in one of the forms of taking an oath, in-
stead of being laid upon the Gospels.
UPPER BENCH. The court of king's bench, in
England, was so called during the interval be-
tween 1649 and 1660, the period of the common-
wealth, Rolle being then chief justice. See 3 BL
Comm. 202.
UPSET PRICE. The price at which any subject,
as lands or goods, is exposed to sale by auction,
below which it is not to be sold. In a final decree
in foreclosure, the decree should name an upset
price large enough to cover costs and all allow-
ances made by the court, receiver's certificates
and interest, liens prior to the bonds, amounts
diverted from the earnings, and all undetermined
claims which will be settled before the confirma-
tion and sale. Blair v. St. Louis, H. & K R. Co.,
C.C.Mo., 25 F. 232; Brinckley v, Sager, 232 Wis. 88,
286 N.W. 570, 573,
UPSUN. In Scotch law. Between the hours of
sunrise and sunset. Poinding must be executed
with upsun. 1 Forb. Inst. pt. 3, p. 32.
URBAN. Of or belonging to a city or town. De-
rived from the Latin "urbanis," which in that lan-
guage imports the same meaning. City of South
Pasadena v. City of San Gabriel, 134 Cal.App. 403,
25 P.2d 516.
URBAN HOMESTEAD. See Homestead.
URBAN SERVITUDE. City servitudes, or servi-
tudes of houses, are called "urban." They are
the easements appertaining to the building and
construction of houses; as, for instance, the right
to light and air, or the right to build a house so
as to throw the rain-water on a neighbor's house.
Mozley & Whitley; Civ. Code La. § 711.
URBS. Lat. In Roman law. A city, or a walled
town. Sometimes it is put for civitas, and de-
notes the inhabitants, or both the city and its in-
habitants; i. e., the municipality or common-
wealth. By way of special pre-eminence, urbs
meant the city of Rome. Ainsworth.
URE. L. Fr. Effect; practice. Mis en ure, put
in practice; carried into effect. Kelham.
USAGE. A reasonable and lawful public custom
in a locality concerning particular transactions
which is either known to the parties, or so well
established, general, and uniform that they must
be presumed to have acted with reference there-
to. Milroy v. Railway Co., 98 Iowa 188, 67 N.W.
276; Barnard v. Kellogg, 10 Wall. 388, 19 L.Ed.
987; Barreda v. Milmo Nat. Bank, Tex.Civ.App.,
241 S.W. 743, 745. Gerseta Corporation v. Silk
Ass'n of America, 220 App.Div. 293, 222 N.Y.S. 11,
13. Practice in fact. Electrical Research Prod-
ucts v. Gross, C.C.A.Alaska, 120 F.2d 301, 305.
Uniform practice or course of conduct followed in
certain lines of business or professions or some
procedure or phase thereof. Turner v. Donovan,
3 Cal.App.2d 485, 39 P.2d 858, 859.
"Usage" cannot be proved by isolated instances, but
must be certain, uniform and notorious. Unkovich v. New
York Cent. R. Co., 128 N.J.Eq. 377, 16 A.2d 558, 561. It
is distinguished from "custom" in that "usage" derives its
efficacy from assent of parties to transaction, and hence
is important only in consensual agreements, while "cus-
tom" derives its efficacy from its adoption into the law, is
binding irrespective of any manifestation of assent by
parties concerned, and may be of importance in any de-
partment of law. Gulf Refining Co. v. Universal Ins. Co.,
C.C.A.N.Y., 32 F.2d 555, 557.
"Usage," in French law, is the "uses" of Roman law,
and corresponds very nearly to the tenancy at will or on
sufferance of English law. Brown.
"Usage," in its most extensive meaning, includes both
custom and prescription; but, in its narrower signification,
the term refers to a general habit, mode, or course of pro-
cedure. A usage differs from a custom, in that it does not
require that the usage should be immemorial to establish
it; but the usage must be known, certain, uniform, rea-
sonable, and not contrary to law. Lowry v. Read, 3
Brewst. (Pa.) 452.
Fair Usage
See Fair Usage,
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USAGE
General Usage
One which prevails generally throughout the
country, or is followed generally by a given pro-
fession or trade, and is not local in its nature or
observance.
Usage of Trade
A course of dealing; a mode of conducting
transactions of a particular kind. Haskins V.
Warren, 115 Mass. 535. A mode of dealing gen-
erally observed in a particular trade. United
States v. Stanolind Crude Oil Purchasing Co., C.
C.A.Okl., 113 F.2d 194, 200; Codd v. Westchester
Fire Ins. Co., 14 Wash.2d 600, 128 P.2d 968, 973.
USANCE. In mercantile law. The common per-
iod fixed by the usage or custom or habit of deal-
ing between the country where a bill is drawn,
and that where it is payable, for the payment of
bills of exchange. It means, in some countries,
a month, in others two or more months, and in
others half • a month. Story, Bills, H 50, 144, 332.
USE, v. To make use of, to convert to one's serv-
ice, to avail one's self of, to employ. Hopkins v.
Howard's Ex'x, 266 Ky. 685, 99 S.W.2d 810, 812.
To leave no capacity of force or use in. Bridge-
port Mach. Co. v. McKnab, 136 Kan. 781, 18 P.2d
186, 187.
USE, n. Act of employing everything, or state of
being employed; application; employment, as the
use of a pen, or his machines are in use. Also the
fact of being used or employed habitually; usage,
as, the wear and tear resulting from ordinary use.
Berry-Kofron Dental Laboratory Co. v. Smith, 345
Mo. 922, 137 S.W.2d 452, 454, 455, 456. The pur-
pose served, a purpose, object or end for useful
or advantageous nature. Brown v. Kennedy, Ohio
App., 49 N.E.2d 417, 418.
A confidence reposed in another, who was made
tenant of the land, or terre-tenant, that he would
dispose of the land according to the intention of
the cestui que use, or him to whose use it was
granted, and suffer him to take the profits. 2 Bl.
Comm. 328.
A right in one person, called the "cestui que
use," to take the profits of land of which another
has the legal title and possession, together with
the duty of defending the same, and of making
estates thereof according to the direction of the
cestui que use. Bouvier.
Uses and trusts are not so much different things as dif-
ferent aspects of the same subject. A use regards prin-
cipally the beneficial interest; a trust regards principally
the nominal ownership. The usage of the two terms is,
however, widely different. The word "use" is employed
to denote either an estate vested since the statute of uses,
and by force of that statute, or to denote such an estate
created before the statute as, had it been created since,
would have become a legal estate by force of the statute.
The word "trust" is employed since that statute to denote
the relation between the party invested with the legal es-
tate (whether by force of that statute or independently of
it) and the party beneficially entitled, who has hitherto
been said to have the equitable estate. Mozley & Whiteley.
Civil Law
A right of receiving so much of the natural prof-
its of a thing as is necessary to daily sustenance.
It differs from "usufruct," which is a right not
only to use, but to enjoy. 1 Browne, Civil & Adm.
Law, 184.
Right given to any one to make a gratuitous
use of a thing belonging to another, or to exact
such a portion of the fruit it produces as is nec-
essary for his personal wants and those of his
family. Civ.Code La. art. 626.
Conveyancing
"Use" literally means "benefit;" thus, in an
ordinary assignment of chattels, the assignor
transfers the property to the assignee for his "ab-
solute use and benefit." In the expressions "sepa-
rate use," "superstitious use," and "charitable
use," "use" has the same meaning Sweet.
Non-technical Sense
The "use" of a thing means that one is to en-
joy, hold, occupy, or have some manner of benefit
thereof. Bryson v. Hicks, 78 Ind.App. 111, 134 N.E.
874, 875. Use also means usefulness, utility, ad-
vantage, productive of benefit. Williams v. City of
Norman, 85 Oki. 230, 205 P. 144, 148; National
Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291,
295, 36 A.L.R. 1171.
General
Cestui que use. A person for .whose use and
benefit lands or tenements are held by another.
The latter, before the statute of uses, was called
the "feoffee to use," and held the nominal or legal
title.
Charitable use. See Charitable.
Contingent use. A use limited to take effect
upon the happening of some future contingent
event; as where lands are conveyed to the use of
A. and B., after a marriage shall be had between
them. 2 Bl.Comm. 334; Haywood v. Shreve, 44
N.J.L. 94; Jemison v. Blowers, 5 Barb. (N.Y.)
692.
Exclusive use. See Exclusive Use.
Executed use. The first use in a conveyance
upon which the statute of uses operates by bring-
ing the possession to it, the combination of which,
e., the use and the possession, form the legal
estate, and thus the statute is said to execute the
use. Wharton.
Executory uses. These are springing uses,
which confer a legal title answering to an execu-
tory devise; as when a limitation to the use of A.
in fee is defeasible by a limitation to the use of
B., to arise at a future period, or on a given event.
Existing use. See Existing Use.
Feoffee to uses. A person to whom (before the
statute of uses) land was conveyed "for the use"
of a third person. He held the nominal or legal
title, while the third person, called the "cestui
que use," was entitled to the beneficial enjoyment
of the estate.
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USER
Official use. An active use before the statute of
uses, which imposed some duty on the legal owner
or feoffee to uses; as a conveyance to A. with
directions for him to sell the estate and distribute
the proceeds among B., C., and D. To enable A.
to perform this duty, he had the legal possession
of the estate to be sold. Wharton.
Passive use. A permissive use (q. v.).
Permissive use. A passive use which was re-
sorted to before the statute of uses, in order to
avoid a harsh law; as that of mortmain or a feu-
dal forfeiture. It was a mere invention in order
to evade the law by secrecy; as a conveyance to
A. to the .use of B. A. simply held the possession,
and B. enjoyed the profits of the estate. Wharton.
Resulting use. A use raised by equity for the
benefit of a feoffor who has made a voluntary con-
veyance to uses without any declaration of the
use. 2 Washb.Real Prop. 100. A resulting use
arises where the legal seisin is transferred, and
no use is expressly declared, nor any considera-
tion or evidence of intent to direct the use. The
use then remains in the original grantor, for it
cannot be supposed that the estate was intended to
be given away; and the statute immediately trans-
fers the legal estate to such resulting use. Whar-
ton.
Secondary use. A use limited to take effect in
derogation of a preceding estate, otherwise called
a "shifting use," as a conveyance to the use of A.
and his heirs, with a proviso that, when B. re-
turns from India, then to the use of C. and his
heirs. 1 Steph.Comm. 546.
Shifting use. A use which is so limited that it
will be made to shift or transfer itself, from one
beneficiary to another, upon the occurrence of a
certain event after its creation. For example,
an estate is limited to the use of A. and his heirs,
provided that, upon the return of B. from Rome,
it shall be to the use of C. and his heirs; this
is a shifting use, which transfers itself to C. when
the event happens. 1 Steph.Comm. 503; 2 Bi.
Comm. 335. These shifting uses are common in
all settlements; and, in marriage settlements, the
first use is always to the owner in fee till the mar-
riage, and then to other uses. The fee remains
with the owner until the marriage, and then it
shifts as uses arise. 4 Kent, Comm. 297.
Springing use. A use limited to arise on a
future event where no preceding use is limited,
and which does not take effect in derogation of
any other interest than that which results to the
grantor, or remains in him in the meantime. 2
Washb.Real.Prop. 281; Smith v. Brisson, 90 N.C.
288.
Statute of uses. An English statute enacted in
1536, (27 Hen. VIII, c. 10,) directed against the
practice of creating uses in lands, and which con-
verted the purely equitable title of persons enti-
tled to a use into a legal title or absolute owner-
ship with right of possession. The statute is said
to "execute the use," that is, it abolishes the in-
tervening estate of the feoffee to uses, and makes
the beneficial interest of the cestui que use an
absolute legal title. See Ohio & Colorado Smelt-
ing & Refining Co. v. Barr, 58 Colo. 116, 144 P. 552,
554.
Superstitious uses. See that title.
Use and habitation. Within a grant does not
mean the exclusive use and habitation, but the ne-
cessities of the grantee are determinative of ex-
tent of privileges to be enjoyed. Barrett v. Bar-
rett, La.App., 5 So.2d 381, 383.
Use and occupation. This is the name of an ac-
tion, being a variety of assumpsit, to be main-
tained by a landlord against one who has had the
occupation and enjoyment of an estate, under a
contract to pay therefor, express or implied, but
not under such a lease as would support an action
specifically for rent. Thackray v. Ritz, 130 Misc.
403, 223 N.Y.S. 668, 669.
Use plaintiff. One for whose use (benefit) an
action is brought in the name of another. Thus,
where the assignee of a chose in action is not al-
lowed to sue in his own name, the action would be
entitled "A. B. (the assignor) for the Use of C. D.
(the assignee) against E. F." In this case, C. D.
is called the "use plaintiff."
USED FOR ILLEGAL CONVEYING OF LIQ-
UOR. Automobile is so used, if liquor is in or on
the car and is being intentionally conveyed by its
movements, though it is upon the person of an
occupant of the car while he is conveyed by it.
Morris v. State, 220 Ala. 418, 125 So. 655.
USEE. A person for whose use a suit is brought;
otherwise termed the "use plaintiff."
USEFUL. The term as used in the patent law,
when applied to a machine, means that the ma-
chine will accomplish its purpose practically when
applied in industry. Besser v. Merrilat Culvert
Core Co., C.C.A.Iowa, 243 F. 611.
By "useful" is meant such an invention as may be ap-
plied to some beneficial use in society, in contradistinction
to an invention which is injurious to the morals, the
health, or the good order of society. Bedford v. Hunt, 1
Mason, 302, F.Cas.No.1,217.
USEFULNESS. Capabilities for use. The word
pertains to the future as well as to the past. Ches-
apeake, 0. & S. W. R. Co. v. Dyer Co., 87 Tenn.
712, 11 S.W. 943.
USER. The actual exercise or enjoyment of any
right or property. It is particularly used of fran-
chises.
Adverse User
Such a use of the property under claim of right
as the owner himself would make, asking no per-
mission, and disregarding all other claims to it,
so far as they conflict with this use. Blanchard
v. Moulton, 63 Me. 434; Murray v. Scribner, 74
Wis. 602, 43 N.W. 549; Thorworth v. Scheets, 269
Ill. 573, 110 N.E. 42, 45; Cummins v. Dumas, 147
Miss. 215.113 So. 332, 334.
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USER DE ACTION
USER DE ACTION. L. Fr. In old practice. The
pursuing or bringing an action. Cowell.
USHER. This word is said to be derived from
"huissier," and is the name of a subordinate offi-
cer in some English courts of law. Archb.Pr. 25.
USHER OF THE BLACK ROD. The gentleman
usher of the black rod is an officer of the house of
lords appointed by letters patent from the crown.
His duties are, by himself or deputy, to desire the
attendance of the commons in the house of peers
when the royal assent is given to bills, either by
the king in person or by commission, to execute
orders for the commitment of persons guilty of
breach of privilege, and also to assist in the in-
troduction of peers when they take the oaths and
their seats. Brown.
USING MAIL TO DEFRAUD. The elements of
this offense are the formation of a scheme or
artifice to defraud, and use of mails for purpose of
executing or attempting to execute such scheme or
artifice; the latter element being gist of the of-
fense. 18 U.S.C.A. § 1341. Stryker v. United
States, C.C.A.Colo., 95 F.2d 601, 604, 605. The
crime is complete when mails are used in such
scheme, and what happened subsequently is not
controlling. United States v. Ames, D.C.N.Y., 39
F.Supp. 885, 886.
USING THE SERVICE OF ANOTHER FOR PAY.
This phrase as used in Compensation Act defining
employer means right to control the means and
manner of that service, as distinguished from re-
sults of such service, the word "service" meaning
the performance of labor for the benefit of anoth-
er. Rutherford v. Tobin Quarries, 336 Mo. 1171, 82
S.W.2d 918, 923.
USO. In Spanish law. Usage; that which arises
from certain things which men say and do and
practice uninterruptedly for a great length of
time, without any hindrance whatever. Las Par-
tidas, pt. 1, tit. 2, 1. 1.
USQUE. Lat. Up to; until. This is a word of
exclusion, and a release of all demands usque ad
a certain day does not cover a bond made on that
day. 2 Mod. 28.
Usually applied to ownership of property. Applied to
right to air it has been held that ownership extends
"usque ad coelum." Romano v. Birmingham Ry. Light &
Power Co., 182 Ala. 335, 62 So. 677, 46 L.R.A.,N.S., 642,
Ann.Cas.1915D, 776. See A Coelo Usque Ad Centrum.
USQUE AD FILUM AQUIE, OR VUE. Up to the
middle of the stream or road.
USUAL. Habitual; ordinary; customary; accord-
ing to usage or custom; commonly established, ob-
served, or practiced. Such as is in common use or
occurs in ordinary practice or course of events.
See Chicago & A. R. Co. v. Hause, 71 Ill.App. 147;
Kellogg v. Curtis, 69 Me. 214, 31 Am.Rep. 273;
Oilmen's Reciprocal Ass'n v. Gilleland, Tex.Com.
App., 291 S.W. 197, 199; Roberts Coal Co. v. Cor-
der Coal Co., 143 Va. 133, 129, S.E. 341, 344; Webb
v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d
333, 335. Synonymous with custom, common,
wonted, regular. Dancy v. Abraham Bros. Pack-
ing Co., 171 Tenn. 311, 102 S.W.2d 526, 528.
USUAL COURSE. These words in statute ex-
cepting from application of Compensation Act
employment not in usual course of employer's
trade or business, refer to normal operations con-
stituting regular business of employer. Long-
shoremen's and Harbor Workers' Compensation
Act, 33 U.S.C.A. §§ 901-950; D.C.Code 1929, T.
19, §§ 11, 12, 33 U.S.C.A. § 901 note. Hoage v.
Hartford Accident & Indemnity Co., 64 App.D.C.
258, 77 F.2d 381.
USUAL COVENANTS. See Covenant.
USUAL PLACE OF ABODE. Within meaning of
statute relating to service of process is place
where defendant is actually living at time of serv-
ice. State ex rel. Merritt v. Heffernan, 142 Fla.
496, 195 So. 145, 147, 127 A.L.R. 1263; Caskey v.
Peterson, 220 Wis. 690, 263 N.W. 658, 660.
USUAL TERMS. A phrase in the common-law
practice, which meant pleading issuably, rejoining
gratis, and taking short notice of trial. When a
defendant obtained further time to plead, these
were the terms usually imposed. Wharton.
USUARIUS. Lat. In the civil law. One who had
the mere use of a thing belonging to another for
the purpose of supplying his daily wants; a us-
uary. Dig. 7, 8, 10, pr.; Calvin.
USUCAPIO, or USUCAPTIO. A term of Roman
law used to denote a mode of acquisition of prop-
erty. It corresponds very nearly to the term "pre-
scription." But the prescription of Roman law
differed from that of the English law, in this: that
no mala fide possessor (i. e., person in possession
knowingly of the property of another) could, by
however long a period, acquire title by possession
merely. The two essential requisites to usucapio
were justa causa (i. e., title) and bona fides, (i. e.,
ignorance.) The term "usucapio" is sometimes,
but erroneously, written "usucaptio."  Brown.
See Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898.
As to "lucrativa usucapio," see that title.
USUCAPIO CONSTITUTA EST UT ALIQUIS
LITIUM FINIS ESSET. Prescription was insti-
tuted that there might be some end to litigation.
Dig. 41, 10, 5; Broom, Max. 894, note.
USUFRUCT. In the civil law. The right of en-
joying a thing, the property of which is vested in
another, and to draw from the same all the profit,
utility, and advantage which it may produce, pro-
vided it be without altering the substance of the
thing. Civ.Code La. art. 533. Mulford v. Le
Franc, 26 Cal. 102; Modern Music Shop v. Con-
cordia Fire Ins. Co. of Milwaukee, 131 Misc. 305,
226 N.Y.S. 630, 635.
Under Greek Law. A right attached to the per-
son which may not be inherited. New England
Trust Co. v. Wood, Mass., 93 N.E.2d 547, 549.
Imperfect Usufruct
An imperfect or quasi usufruct is that which is
of things which would be useless to the usufruc-
tuary if he did not consume or expend them or
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change the substance of them; as, money, grain,
liquors. Civ.Code La. art. 534.
See Quasi Usufruct infra.
Legal Usufruct
See that title.
Perfect Usufruct
An usufruct in those things which the usufruc-
tuary can enjoy without changing their substance,
though their substance may be diminished or de-
teriorate naturally by time or by the use to which
they are applied, as, a house, a piece of land, fur-
niture, and other movable effects. Civ.Code La.
art. 534.
Quasi Usufruct
In the civil law. Originally the usufruct gave no
right to the substance of the thing, and conse-
quently none to its consumption; hence only an
inconsumable thing could be the object of it,
whether movable or immovable. But in later
times the right of usufruct was, by ar.alogy, ex-
tended to consumable things, and therewith arose
the distinction between true and quasi usufructs.
See Mackeld. Rom. Law, § 307; Civ.Code La. art.
534. See Imperfect Usufruct, supra.
USUFRUCTUARY. In the civil law. One who
has the usufruct or right of enjoying anything in
which he has no property, Cartwright v. Cart-
wright, 18 Tex. 628.
USUFRUIT. In French law. The same as the
usufruct of the English and Roman law.
USURA. Lat. In the civil law. Money given for
the use of money; interest. Commonly used in
the plural, "usurce." Dig. 22, 1.
USURA EST COMMODUM CERTUM QUOD
PROPTER USUM REI MUTUATIE RECIPITUR.
SED SECUNDARIO SPIRARE DE ALIQUA RET-
RIBUTIONE, AD VOLUNTATEM EJUS QUI
MUTUATUS JEST, HOC NON EST VITIOSUM.
Usury is a certain benefit which is received for
the use of a thing lent. But to have an under-
standing [literally, to breathe or whisper,] in an
incidental way, about some compensation to be
made at the pleasure of the borrower, is not law-
ful. Branch, Princ.; 5 Coke, 70b; Glan. lib. 7,
c. 16.
USURA MANIFESTA. Manifest or open usury;
as distinguished from usura velata, veiled or con-
cealed usury, which consists in giving a bond for
the loan, in the amount of which is included the
stipulated interest.
USURA MARITIMA. Interest taken on bottomry
or respondentia bonds, which is proportioned to
the risk, and is not affected by the usury laws.
USURARIUS. In old English law. A usurer.
Fleta, lib. 2, c. 52, § 14.
USURIOUS. Pertaining to usury; partaking of
the nature of usury; involving usury; tainted
with usury; as, a usurious contract.
Black's Law Dictionary Revised 4th Ed.-108
USURIOUS CONTRACT. A contract if interest
contracted to be paid exceeds the rate established
by statute. Commerce Farm Credit Co. v. Ramp,
Tex.Civ.App., 116 S.W.2d 1144, 1149. It being
sufficient when there is contingency whereby lend-
er may get more than lawful rate of interest.
Reynolds Mortg. Co. v. Thomas, Tex.Civ.App., 61
S.W.2d 1011, 1013. See, also, Usury.
USURP. To seize and hold any office by force, and
without right; applied to seizure of office, place,
functions, powers, rights, etc. State ex rel. Scanes
v. Babb, 124 W.Va. 428, 20 S.E.2d 683, 686.
USURPATIO. Lat. In the civil law. The inter-
ruption of a usucaption, by some act on the part
of the real owner. Calvin.
USURPATION. The unlawful assumption of the
use of property which belongs to another; an
interruption or the disturbing a man in his right
and possession. Tomlins.
The unlawful seizure or assumption of sovereign
power; the assumption of government or supreme
power by force or illegally, in derogation of the
constitution and of the rights of the lawful ruler.
"Usurpation" for which writ of prohibition may be
granted involves attempted exercise of power not possessed
by inferior officer. Ex parte Wilkinson, 220 Ala. 529, 126
So. 102, 104.
USURPATION OF ADVOWSON. An injury
which consists in the absolute ouster or disposses-
sion of the patron from the advowson or right of
presentation, and which happens when a stranger
who has no right presents a clerk, and the latter
is thereupon admitted and instituted. Brown.
USURPATION OF FRANCHISE OR OFFICE.
The unjustly intruding upon or exercising any
office, franchise, or liberty belonging to another.
See, also, Usurpation.
"Usurpation" of public office authorizing quo warranto
action under statute may be with or without forcible
seizure of office and prerogatives thereof, and may consist
of mere unauthorized assumption and exercise of power in
performing duties of office upon claim of right thereto.
State ex rel. Kirk v. Wheatley, 133 Ohio St. 164, 12 N.E.2d
491, 493.
USURPED POWER. In insurance. An invasion
from abroad, or an internal rebellion, where
armies are drawn up against each other, when
the laws are silent, and when the firing of towns
becomes unavoidable. These words cannot mean
the power of a common mob. 2 Marsh.Ins. 791.
USURPER. One who assumes the right of gov-
ernment by force, contrary to and in violation of
the constitution of the country. Toul, Droit. Civ.
n. 32.
USURPER OF A PUBLIC OFFICE. One who ei-
ther intrudes into a vacant office or ousts the in-
cumbent without any color of title. Neal v. Park-
er, 200 Ark. 10, 139 S.W.2d 41, 44. One who in-
trudes on office and assumes to exercise its func-
tions without legal title or color of right thereto.
Alleger v. School Dist. No. 16, Newton County;
Mo.App., 142 S.W.2d 660, 663; State ex rel. City
of Republic v. Smith, 345 Mo. 1158, 139 S.W.2d
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929, 933. Any person attempting to fill pretended
office attempted to be created by an unconstitution-
al law. Bodcaw Lumber Co. of Louisiana v. Jor-
dan, La.App., 14 So.2d 98, 101.
USURY,
Modern Law
An illegal contract for a loan or forbearance of
money, goods, or things in action, by which illegal
interest is reserved, or agreed to be reserved or
taken. Midland Loan Finance Co. v. Lorentz,
209 Minn. 278, 296 N.W. 911, 914, 915. An uncon-
scionable and exorbitant rate or amount of inter-
est. Heilos v. State Land Co., 113 N.J.Eq. 239, 166
A. 330, 332. An unlawful contract upon the loan
of money, to receive the same again with ex-
orbitant increase. 4 Bl.Comm. 156. The reserv-
ing and taking, or contracting to reserve and take,
either directly or by indirection, a greater sum for
the use of money than the lawful interest. See
Henry v. Bank of Salina, 5 Hill. (N.Y.) 528; In
re Elmore Cotton Mills (D.C.) 217 F. 810, 814.
See, also, Usurious Contract.
"Usury" does not depend on question whether the lender
actually gets more than the legal rate of interest or not;
but on whether there was a purpose in his mind to make
more than legal interest for the use of money, and wheth-
er, by the terms of the transaction, and the means used to
effect the loan, he may by its enforcement be enabled to
get more than the legal rate. American Nat. Ins. Co. v.
Schenck, Tex.Civ.App., 85 S.W.2d 833, 837.
A profit greater than the lawful rate of interest, inten-
tionally exacted as a bonus, for the forbearance of an ex-
isting indebtedness or a loan of money, imposed upon the
necessities of the borrower in a transaction where the
money is to be returned at all events. Monk v. Goldstein,
172 N.C. 516, 90 S.E. 519, 520; Anderson v. Beadle, 35 N.M.
654, 5 P.2d 528, 529.
Old English Law
Interest of money; increase for the loan of mon-
ey; a reward for the use of money. 2 Bl.Comm.
454. The taking of any compensation whatever
for the use of money. Marshall v. Beeler, 104
Kan. 32, 178 P. 245, 246; Schlesinger v. State, 195
Wis. 366, 218 N.W. 440, 442, 57 A.L.R. 352.
USUS. Lat. In Roman law. A precarious enjoy-
ment of land, corresponding with the right of habi-
tatio of houses, and being closely analogous to
the tenancy at sufferance or at will of English
law. The usuarius (i. e., tenant by usus) could
only hold on so long as the owner found him cons
venient, and had to go so soon as ever he was in
the owner's way, (molestus.) The usuarius could
not have a friend to share the produce. It was
scarcely permitted to him (Justinian says) to have
even his wife with him on the land; and he could
not let or sell, the right being strictly personal
to himself. Brown.
USUS BELLICI. Lat. In international law. War.
like uses or objects. It is the usus bellici which
determine an article to be contraband. 1 Kent,
Comm. 141.
USUS EST DOMINIUM FIDUCIARIUM. Bac. St.
Uses. Use is a fiduciary dominion.
USUS ET STATUS SIVE POSSESSIO POTIUS
DIFFERUNT SECUNDUM RATIONEM FORI,
QUAM SECUNDUM RATIONEM REI. Bac. St.
Uses. Use and estate, or possession, differ more
in the rule of the court than in the rule of the
matter.
USUS FRUCTUS. Lat. In Roman law. Usu-
fruct; usufructuary right or possession. The
temporary right of using a thing, without having
the ultimate property, or full dominion, of the
substance. 2 Bl.Comm. 327.
UT CURRERE SOLEBAT. Lat. As it was wont
to run; applied to a water-course.
UT DE FEODO. L. Lat. As of fee.
UT HOSPITES. Lat. As guests. 1 Salk. 25, pl.
10.
UT PANE AD PAUCOS, METUS AD OMNES
PERVENIAT. That the punishment may reach a
few, but the fear of it affect all. A maxim in
criminal law, expressive of one of the principal
objects of human punishment. 4 Inst. 6; 4 Bl.
Comm. 11.
UT RES MAGIS VALEAT QUAM PEREAT. That
the thing may rather have effect than be destroy-
ed. Simonds v. Walker, 100 Mass. 113; National
Pemberton Bank v. Lougee, 108 Mass. 373, 11 Am.
Rep. 367. Charitable bequests are also governed
by this maxim. King v. Richardson, C.C.A.N.C.,
136 F.2d 849, 858.
UT SUMMIE POTESTATIS REGIS EST POSSE
QUANTUM VELIT, SIC MAGNITUDINIS EST
VELLE QUANTUM POSSIT, 3 Inst. 236. As
the highest power of a king is to be able to do all
he wishes, so the highest greatness of him is to
wish all he is able to do.
UTAS. In old English practice. Octave; the oc-
tave; the eighth day following any term or feast.
Cowell.
UTENSIL. A much broader term than "tool,"
though it may be applicable to many implements
designated tools in common parlance. Murphy v.
Continental Ins. Co., 178 Iowa, 375, 157 N.W. 855,
857, L.R.A. 1917B, 934. For "Farm Utensils," see
that title.
UTERINE. Born of the same mother. A uterine
brother or sister is one born of the same mother,
but by a different father.
UTERO–GESTATION. Pregnancy.
UTERQUE. Lat. Both; each. "The justices, be-
ing in doubt as to the meaning of this word in an
indictment, demanded the opinions of grammar-
ians, who delivered their opinions that this word
doth aptly signify one of them." 1 Leon. 241.
UTFANGTHEF, or UTFANGENETHEF. In Sax-
on and old English law. The privilege of a lord of
a manor to judge and punish a thief dwelling out
of his liberty, and committing theft without the
same, if he were caught within the lord's juris-
diction. Cowell.
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The right of the lord of a manor to hang a thief
caught with the stolen goods, whether or not the
capture was made on the manor. 1 Holdsw. Hist.
E. L. 11. See Infangenthef.
UTI. Lat. In the civil law. To use. Strictly, to
use for necessary purposes; as distinguished from
"frui," to enjoy. Heinecc. Elem. lib. 2, tit. 4, § 415.
UTI FRL TL Lat. In the civil law. To have the
full use and enjoyment of a thing, without dam-
age to its substance. Calvin.
UTI POSSIDETIS. Lat.
The Civil Law
A species of interdict for the purpose of retain-
ing possession of a thing, granted to one who, at
the time of contesting suit, was in possession of an
immovable thing, in order that he might be de-
clared the legal possessor. Hallifax, Civil Law, b.
3, c. 6, no. 8. See Utrubi.
International Law
A phrase used to signify that the parties to a
treaty are to retain possession of what they have
acquired by force during the war. Wheat. Int.
Law, 627.
A treaty which terminates a war may adopt this prin-
ciple or that of the status quo ante bellum, or a combina-
tion of the two. In default of any treaty stipulation, the
former doctrine prevails. Guillermo Alvarez y Sanches v.
U. S., 42 Ct.C1. 458.
UTI ROGAS. Lat. In Roman law. The form of
words by which a vote in favor of a proposed law
was orally expressed. Uti rogas, volo vel jubeo,
as you ask, I will or order; I vote as you propose;
I am for the law. The letters "U. R." on a ballot
expressed the same sentiment. Adams, Rom.
Ant. 98, 100.
UTILE PER INUTILE NON VITIATUR. The
useful is not vitiated by the useless. Surplusage
does not spoil the remaining part if that is good
in itself. Dyer, 392; Broom, Max. 627; 2 Wheat.
221, 4 L.Ed. 224.
UTILIDAD. Span. In Spanish law. The profit
of a thing. White, New Recop. b. 2, tit. 2, c. 1.
UTILIS. Lat. In the civil law. Useful; bene-
ficial; equitable; available. Actio utilis, an equit-
able action. Calvin. Dies utilis, an available day.
UTILITY. In patent law. Industrial value; the
capability of being so applied in practical affairs
as to prove advantageous in the ordinary pursuits
of life, or add to the enjoyment of mankind. Cal-
lison v. Dean, C.C.A.Okl., 70 F.2d 55, 58. The ab-
sence of frivolity and mischievousness, and utility
for some beneficial purpose. Rob. Pat. § 339.
But there is no utility if the invention can be
used only to commit a fraud with, Klein v. Rus-
sell, 19 Wall. 433, 22 L.Ed. 116; or for some im-
moral purpose, Lowell v. Lewis, 1 Mason, 182, F.
Cas.No.8,568; or can be used only for gambling
purposes in saloons, Schultze v. Holtz, C.C.Cal., 82
UTRUMQUE
F. 448; or if the invention is dangerous in its
use, Mitchell v. Tilghman, 19 Wall. 287, 22 L.Ed.
125.
"Utility" is established if only partial success is at-
tained. Emery Industries v. Schumann, C.C.A.I11., 111
F.2d 209, 211.
The "utility" which an infringing defendant is estopped
to deny means sufficient practical utility to make a device
useful in the sense of the patent statute. The estoppel
does not forbid him to deny that there is any useful func-
tion, or new result serving to give inventive character to
the slight step which a patentee has taken in differentia-
tion from prior art. Sandy MacGregor Co. v. Vaco Grip
Co., C.C.A.Ohio, 2 F.2d 655, 656.
UTLAGATUS, or UTLAGATUM. In old English
law. An outlawed person; an outlaw.
UTLAGATUS EST QUASI EXTRA LEGEM POS-
ITUS. CAPUT GERIT LUPINUM. 7 Coke, 14.
An outlaw is, as it were, put out of the protection
of the law. He bears the head of a wolf.
UTLAGATUS PRO CONTUMACIA ET FUGA,
NON PROPTER HOC CONVICTUS EST DE FAC-
TO PRINCIPAL!. Fleta. One who is outlawed
for contumacy and flight is not on that account
convicted of the principal fact.
UTLAGE. L. Fr. An outlaw. Britt. c. 12.
UTLESSE. An escape of a felon out of prison.
UTMOST CARE. Substantially synonymous with
"highest care." Brogan v. Union Traction Co., 76
W.Va. 698, 86 S.E. 753, 756.
The "utmost care" which is required of a carrier of per-
sons for reward, means the highest degree of care, but
does not mean that in point of fact the same degree or
quantum of care should be applied in every case, since the
necessary degree of care varies with the dangers to be
anticipated by a man of the utmost degree of prudence
from the surrounding circumstances and conditions of each
case. Chicago, R. I. & P. Ry. Co. v. Shelton, 135' Okl. 53,
273 P. 988, 990.
UTMOST RESISTANCE. This term, under the
rule that to constitute rape there must be utmost
resistance by the woman, is a relative rather than
a positive term, and means that greatest effort
of which she is capable must be used to foil as-
sailant. State v. Brewster, 208 Iowa, 122, 222 N.W.
6. McLain v. State, 159 Wis. 204, 149 N.W. 771,
772.
UTRUBI,
Civil Law
The name of a species of interdict for retaining
a thing, granted for the purpose of protecting the
possession of a movable thing, as the uti possidetis
was granted for an immovable. Inst. 4, 15, 4;
Mackeld. Rom. Law, § 260.
Scotch Law
An interdict as to movables, by which the color-
able possession of a bona fide holder is continued
until the final settlement of a contested right;
corresponding to uti possidetis as to heritable
property. Bell.
UTRUMQUE NOSTRUM. Both of us. Words
used formerly in bonds.
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UTTER
UTTER, .v. To put or send (as a forged check)
into circulation; Smith v. Commonwealth, 151 Ky.
517, 152 S.W. 574, 575; To publish or put forth;
Barron v. State, 12 Ga.App. 342, 77 S.E. 214, 215;
Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75
So. 252, 254. To offer. Bish. Cr. L. § 607.
To utter and publish an instrument, as a counterfeit
note, is to declare or assert, directly or indirectly, by
words or actions, that it is good; uttering it is a declara-
tion that it is good, with an intention or offer to pass it.
Whart.Crim.Law, § 703; Corn. v. Searle, 2 Binn., Pa., 338,
4 Am.Dec. 446; Terry v. State, 29 Ala.App. 340, 197 So.
44, 45.
To utter, as used in a statute against forgery and
counterfeiting, means to offer, whether accepted or not, a
forged instrument, with the representation, by words or
actions, that the same is genuine. See State v. Horner, 48
Mo. 522; People v. Rathbun, 21 Wend., N.Y., 521; People
v. Caton, 25 Mich. 392; Commonwealth v. Fenwick, 177
Ky. 685, 198 S.W. 32, 34, L.R.A.1918B, 1189; Jones v.
State, 69 Okl.Cr. 244, 101 P.2d 860, 863; 2 Bish.Cr.L. §
605.
"Uttering" or "publishing" a check consists in present-
ing it for payment, and the act is then done although no
money may be obtained. State v. Hobl, 108 Kan. 261, 194
P. 921, 924.
UTTER, adj. Entire; complete; absolute; total.
Bell v. Commonwealth, 170 Va. 597, 195 S.E. 675,
683.
In a statute making utter desertion for three years a
ground for divorce, it suggests an abnegation of all the
duties and obligations resulting from the marriage con-
tract. Moody v. Moody, 118 Me. 454, 108 A. 849.
UTTER BAR. In English law. The bar at which
those barristers, usually junior men, practice who
have not yet been raised to the dignity of king's
counsel. These junior barristers are said to plead
without the bar; while those of the higher rank
are admitted to seats within the bar, and address
the court or a jury from a place reserved for them,
and divided off by a bar, Brown. Also called
"outer bar."
UTTER BARRISTER. In English law. Those
barristers who plead without the bar, and are dis-
tinguished from benchers, or those who have been
readers, and who are allowed to plead within the
bar, as the king's counsel are. Cowell. See Out-
er Bar.
UXOR. Lat. In the civil law. A wife; a woman
lawfully married.
Et Uxor
And his wife. A term used in indexing, ab-
stracting, and describing conveyances made by a
man and his wife as grantors, or to a man and his
wife as grantees. Often abbreviated "et ux."
Thus, "John Doe et ux. to Richard Roe."
Jure Uxoris
In right of his wife. A term used of a husband
who joins in a deed, is seised of an estate, brings
a suit, etc., in the right or on the behalf of his
wife. 3 Bl. Comm. 210.
UXOR ET FILIUS SUNT NOMINA NATURE.
Wife and son are names of nature. 4 Bac. Works,
350.
UXOR NON EST SUI JURIS, SED SUB POTEST-
ATE VIRI. A wife is not her own mistress, but
is under the power of her husband. 3 Inst. 108.
UXOR SEQUITUR DOMICILIUM VIRI. A wife
follows the domicile of her husband. Tray. Lat.
Max. 606.
UXORICIDE. The killing of a wife by her hus-
band; one who murders his wife. Not a technical
term of the law.
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V. As an abbreviation, this letter may stand for
"Victoria," "volume," or "verb;" also "vide" (see)
and "voce" (word).
It is also a common abbreviation of "versus,"
in the titles of causes, and reported cases.
V. A. Veterans Administration.
V. C. An abbreviation for "vice-chancellor."
V. C. C. An abbreviation for "vice-chancellor's
court."
V. E. An abbreviation for "venditioni exponas,"
(q. v.).
V. G. An abbreviation for "verbi gratia," for the
sake of example.
V. I. S. T. A. Volunteers in Service to America.
VACANCY. A place which is empty. Wallace v.
Payne, 197 Cal. 539, 241 P. 879. State v. Young,
137 La. 102, 68 So. 241, 247.
A strip of unsurveyed and unsold public lands.
Hughes v. Rhodes, Tex.Civ.App., 137 S.W.2d 820,
821.
An unoccupied or unfilled post, position, or of-
fice. Alcorn ex rel. Hendrick v. Keating, 120 Conn.
427, 181 A. 340. An existing office, etc., without an
incumbent. State v. Board of Election Com'rs of
City of Tipton, 196 Ind. 472, 149 N.E. 69, 71. The
state of being destitute of an incumbent, or a prop-
er or legally qualified officer. Ashcroft v. Good-
man, 139 Tenn. 625, 202 S.W. 939. The term is
principally applied to an interruption in the in-
cumbency of an office, or to cases where the office
is not occupied by one who has a legal right to
hold it and to exercise the rights and perform the
duties pertaining thereto. Frantz v. Davis, 131
S.E. 784, 785, 144 Va. 320. State ex rel. Plunkett
v. Miller, 162 Miss. 149, 137 So. 737, 739. See, also,
Vacant.
The word "vacancy," when applied to official positions,
means, in its ordinary and popular sense, that an office is
unoccupied, and that there is no incumbent who has a law-
ful right to continue therein until the happening of a
future event, though the word is sometimes used with ref-
erence to an office temporarily filled. Futrell v. Oldham,
107 Ark. 386, 155 S. W. 502, 504, Ann.Cas.1915A, 571; State
v. Caulk, 3 W.W.Harr., Del., 344, 138 A. 354, 357.
Misconduct in office does not create a "vacancy". State
ex rel. Brister v. Weston, 241 Wis. 584, 6 N.W.2d 648, 651.
And though "suspension" becomes imperative pending trial
of a public officer for malfeasance or nonfeasance in office,
"vacancy" does not occur until the officer is removed fol-
lowing trial. State ex rel. Carlson v. Strunk, 219 Minn.
529, 18 N.W.2d 457, 460. But annulment of election creates
a "vacancy" in office. Killian v. Wilkins, 203 S.C. 74, 26
S.E.2d 246, 248.
A person by entering armed forces of the United States
does not create a vacancy of a civil office formerly held by
such person. State ex rel. Thomas v. Wysong, 125 W.Va.
369, 24 S.E.2d 463, 467; Gullickson v. Mitchell, 113 Mont.
359, 126 P.2d 1106, 1110, 1111, 1114; In re Advisory Opinion
to Governor, 150 Fla. 556, 8 So.2d 26, 32, 140 A.L.R. 1481.
VACANT. Empty; unoccupied; as, "vacant" of-
fice. Shaffner v. Shaw, 191 Iowa 1047, 180 N.W.
853, 854. Deprived of contents, without inanimate
objects. It implies entire abandonment, nonoc-
cupancy for any purpose. Foley v. Sonoma Coun-
ty Farmers' Mut. Fire Ins. Co. of Sonoma, Cal.
App., 108 P.2d 939, 942.
"Vacant" and "unoccupied," as used together in rider
to fire policy, have different meanings; term "vacant"
meaning "empty," while term "unoccupied" means lack
of habitual presence of human beings. Jelin v. Home Ins.
Co., C.C.A.N.J., 72 F.2d 326, 327.
Absolutely free, unclaimed, and unoccupied; as,
"vacant" land. Donley v. Van Horn, 49 Cal.App.
383, 193 P. 514, 516. See, also, War Fork Land Co.
v. Llewellyn, 199 Ky. 607, 251 S.W. 663, 665. But
land which is partially cultivated may still be "va-
cant land" within the meaning of a statute. Di
Legge v. Peper, 148 Md. 268, 129 A. 292, 293.
See, also, Vacancy, and as to vacant "Posses-
sion" and "Succession," see those titles.
VACANTIA BONA. Lat. In the civil law. Goods
without an owner, or in which no one claims a
property; escheated goods. Inst. 2, 6, 4; 1 Bl.
Comm. 298.
VACATE. To annul; to set aside; to cancel or
rescind; to render an act void; as, to vacate an
entry of record, or a judgment. Stewart v. Oneal,
C.C.A.Ohio, 237 F. 897, 903.
As applied to a judgment or decree it is not synonymous
with "suspend" which means to stay enforcement of judg-
ment or decree. Ohio Fuel Gas Co. v. City of Mt. Vernon,
37 Ohio App. 159, 174 N.E. 260, 262.
To put an end to; as, to vacate a street. Mc-
Carl v. Clarke County, 167 Iowa, 14, 148 N.W. 1015,
1017.
To move out; to make vacant or empty; to
leave; especially, to surrender possession by re-
moval; to cease from occupancy. Ruble v. Ru-
ble, Tex.Civ.App., 264 S.W. 1018, 1020; Polich v.
Severson, 68 Mont. 225, 216 P. 785, 787.
See, also, Vacancy.
VACATIO. Lat. In the civil law. Exemption;
immunity; privilege; dispensation; exemption
from the burden of office. Calvin.
VACATION. A recess or leave of absence, a re-
spite or time of respite from active duty, an inter-
mission or rest period during which activity or
work is suspended. It is a period of freedom from
duty, but not the end of employment. In re Dau-
ber, 151 Pa.Super. 293, 30 A.2d 214, 216. The act
or result of vacating. An intermission of proce-
dure. Kettlekamp v. Watkins, 70 Mont. 391, 225
P. 1003, 1006. It is not a termination of the re-
lation of master and servant. Gutzwiller v. Amer-
ican Tobacco Co., 97 Vt. 281, 122 A. 586, 588. In
schools, there are customary vacations at Christ-
mas, Easter, and during the summer. Duffey v.
School Committee of Town of Hopkinton, 236
Mass. 5, 127 N.E. 540.
That period of time between the end of one
term of court and the beginning of another.
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O'Neal v. State, 35 Ga.App. 665, 134 S.E. 332, 333;
Conkling v. Ridgely, 112 Ill. 36, 1 N.E. 261, 54 Am.
Rep. 204; Brayman v. Whitcomb, 134 Mass. 525.
Sometimes, any time when the court is not in
session. St. Louis, I. M. & S. Ry. Co. v. Ingram,
118 Ark. 377, 176 S.W. 692, 693.
Under practice statutes the intermission between the
calls of the equity docket. West v. State ex rel. Matthews,
233 Ala. 588, 173 So. 46, 47.
Ecclesiastical Law
Vacation signifies that a church or benefice is
vacant; e. g., on the death or resignation of the
incumbent, until his successor is appointed. 2
Inst. 359; Phillim.Ecc.Law, 495.
VACATION BARRISTER. See Barrister.
VACATUR. Lat. Let it be vacated. In practice,
a rule or order by which a proceeding is vacated;
a vacating.
VACATURA. An avoidance of an ecclesiastical
benefice. Cowell.
VACCARIA. In old English law. A dairyhouse.
Co. Litt. 5b.
VACCINATION. Inoculation with vaccine or the
virus of cowpox as a preventive against the small-
pox; frequently made compulsory by statute.
Daniel v. Putnam County, 113 Ga. 570, 38 S.E. 980,
54 L.R.A. 292; Zucht v. King, Tex.Civ.App., 225
S.W. 267.
VACUA POSSESSIO. Lat. The vacant posses.
sion, i. e., free and unburdened possession, which.
(e. g.,) a vendor had and has to give to a pur-
chaser of lands.
VACUITY. Emptiness; vacancy; want of real-
ity; nihility. McQueen v. Ahbe, 99 W.Va. 650, 130
S.E. 261, 262.
VACUUM. Practically synonymous with suction,
although suction may be the result of vacuum.
Pennsylvania Rubber Co. v. Dreadnaught Tire &
Rubber Co., D.C.Del., 225 F. 138, 141.
VACUUS. Lat. In the civil law. Empty; void;
vacant; unoccupied. Calvin.
VADES. Lat. In the civil law. Pledges; sure-
ties; bail; security for the appearance of a de-
fendant or accused person in court. Calvin.
VADIARE DUELLUM. L. Lat. In old English
law. To wage or gage the duellum; to wage bat-
tel; to give pledges mutually for engaging in the
trial by combat.
VADIMONIUM. Lat. In Roman law. Bail or
security; the giving of bail for appearance in
court; a recognizance. Calvin. An ancient form
of suretyship. Hunter, Rom.L. 526.
VADIUM. Lat. A pledge; security by pledge of
property. Coggs v. Bernard, 2 Ld.Raym. 913.
VADIUM MORTUUM. A mortgage or dead
pledge; a security given by the borrower of a
sum of money, by which he grants to the lender
an estate in fee, on condition that, if the money
be not repaid at the time appointed, the estate so
put in pledge shall continue to the lender as dead
or gone from the mortgagor. 2 Bl.Comm. 157.
VADIUM PONERE. To take bail for the appear-
ance of a person in a court of justice. Tomlins.
VADIUM VIVUM. A species of security by which
the borrower of a sum of money made over his
estate to the lender until he had received that
sum out of the issues and profits of the land. It
was so called because neither the money nor the
lands were lost, and were not left in dead pledge,
but this was a living pledge, for the profits of
the land were constantly paying off the debt. Litt.
§ 206; 1 Pow.Mortg. 3; Termes de la Ley; Spect
v. Spect, 88 Cal. 437, 26 P. 203, 13 L.R.A. 137, 22
Am.St.Rep. 314; O'Neill v. Gray, 39 Hun (N.Y.)
566; Kortright v. Cady, 21 N.Y. 344, 78 Am.Dec.
145.
VADLET. In old English law. The king's eldest
son; hence the valet or knave follows the king
and queen in a pack of cards. Bar.Obs.St. 344.
VADELET. See Valec.
VADUM. In old records, a ford, or wading place.
Cowell.
VAGABOND. A vagrant or homeless wanderer
without means of honest livelihood. Neering v.
Illinois Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497,
502. One who wanders from place to place, hav-
ing no fixed dwelling, or, if he has one, not abid-
ing in it; a wanderer, especially such a person
who is lazy and generally worthless and without
means of honest livelihood. Goodman v. Eggers,
11 N.J.Misc. 811, 168 A. 317, 318.
Vagabonds are described in old English statutes as
"such as wake on the night and sleep on the day, and
haunt customable taverns and ale-houses and routs about;
and no man wot from whence they came, nor whither
they go." 4 Bl.Comm. 169. See Forsyth v. Forsyth, 46
N.J.Eq. 400, 19 A. 119; Johnson v. State, 28 Tex. App. 562,
13 S. W. 1005.
VAGABUNDUM NUNCUPAMUS EUM QUI NUL-
LIBI DOMICILIUM CONTRAXIT HABITATION-
IS. We call him a "vagabond" who has acquired
nowhere a domicile of residence. Phillim. Dom.
23, note.
VAGRANCY. At common law, the act of going
about from place to place by a person without
visible means of support, who is idle, and who,
though able to work for his or her maintenance,
refuses to do so, but lives without labor or on
the charity of others. Ex parte Hudgins, 86 W.
Va. 526, 103 S.E. 327, 328, 9 A.L.R. 1361. See Va-
grant.
Ordinarily, a course of conduct or manner of life, rather
than a single act, is necessary to give rise to charge of
"vagrancy". State v. Suman, 216 Minn. 293, 12 N.W.2d
620, 621.
Under some statutes, however, a single act may be suf-
ficient. 66 C.J. p. 401. Thus, it has been held that the
act of { prowling about and creeping up on parked auto-
mobiles and their occupants at night, under circumstances
indicating an intent to commit a crime, constitutes vagran-
cy. Smith v. Drew, 26 P.2d 1040, 175 Wash. 11. It has
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also been held that, although traveling by automobile, a
person may nevertheless be a vagrant, and, even though
he travels without stop or hesitation for a considerable
distance, he may still come within a statute punishing
one who "wanders about" at late hours. Blashfield, Cyc.
of Automobile Law and Prac., Perm. Ed., § 5528.84.
VAGRANT. At common law, wandering or going
about from place to place by idle person who had
no lawful or visible means of support and who sub-
sisted on charity and did not work, though able
to do so. State v. Harlowe, 174 Wash. 227, 24
P.2d 601.
A general term, including, in English law, the
several classes of idle and disorderly persons,
rogues, and vagabonds, and incorrigible rogues.
4 Steph.Comm. 308, 309.
One who strolls from place to place, an idle
wanderer, specifically, one who has no settled
habitation, a vagabond. Neering v. Illinois Cent.
R. Co., 383 Ill. 366, 50 N.E.2d 497, 502. A person
able to work who spends his time in idleness or
immorality, having no property to support him
and without some visible and known means of
fair, honest and reputable livelihood. State v.
Oldham, 224 N.C. 415, 30 S.E.2d 318, 319. One
who is apt to become a public charge through his
own laziness. People, on Complaint of McDon-
ough, v. Gesino, Sp.Sess., 22 N.Y.S.2d 284, 285.
See Vagrancy.
A person who lives without employment is not a "va-
grant" if he has sufficient means belonging to himself or
means provided for him in a legitimate way. People v.
Banwer, Mag.Ct., 22 N.Y.S.2d 566, 569, 571.
VAGRANT ACT. In English law. The statute 5
Geo. IV. c. 83, which is an act for the punishment
of idle and disorderly persons. 2 Chit.St. 145.
The act of 17 Geo. II divided vagrants into idle
and disorderly persons; rogues and vagabonds;
and incorrigible rogues. Other statutes were pass-
ed as late at 32 Geo. III bearing on this subject.
See Jacob's Law Diet. s. v. Vagrant.
VAGUE. Indefinite. City of Cincinnati v. Schill,
125 Ohio St. 57, 180 N.E. 545, 547. Uncertain; not
susceptible of being understood. 5 B. & C. 583.
Vague and unsatisfactory testimony is that which is dim
and shadowy and fails to relieve the mind of the trier of
facts from doubt or uncertainty. Weliska's Case, 125 Me.
147, 131 A. 860, 861.
VALE. In Spanish law. A promissory note.
White, New Recop. b. 3, tit. 7, c. 5, § 3. See Gov-
In v. De Miranda, 140 N.Y. 662, 35 N.E. 628.
VALEAT QUANTUM VALERE POTEST. It
shall have effect as far as it can have effect.
Cowp. 600; 4 Kent, Comm. 493; Shep.Touch. 87.
VALEC, VALECT, or VADELET. In old English
law. A young gentleman; also a servitor or gen-
tleman of the chamber. Cowell.
VALENTIA. L. Lat. The value or price of any-
thing.
VALESIIERIA. In old English law. The proving
by the kindred of the slain, one on the father's
side, and another on tha t of the mother, that a
man was a Welshman. Wharton. See Engleshire.
VALET. Anciently, a name denoting young gen-
tlemen of rank and family, but afterwards applied
to those of lower degree; now used for a menial
servant, more particularly occupied about the per-
son of his employer. Cab.Lawy. 800.
VALID. Having legal strength or force, executed
with proper formalities, incapable of being right-
fully overthrown or set aside. Edwards v. O'Neal,
Tex.Civ.App., 28 S.W.2d 569, 572. Of binding
force; legally sufficient or efficacious; authorized
by law. Anderson, L.Dict.; Morrison v. Farmers'
& Traders' State Bank, 70 Mont. 146, 225 P. 123,
125. Good or sufficient in point of law; effica-
cious; executed with the proper formalities; in-
capable of being rightfully overthrown or set
aside; sustainable and effective in law, as distin-
guished from that which exists or took place in
fact or appearance, but has not the requisites to
enable it to be recognized and enforced by law.
Thompson v. Town of Frostproof, 89 Fla. 92, 103
So. 118; United States v. McCutchen, D.C.Cal.,
234 F. 702, 709.
A deed, will, or other instrument, which has received
all the formalities required by law, is said to be valid.
Meritorious; as a valid defense. Berringer v.
Stevens, 145 Ark. 293, 225 S.W. 14, 15.
VALID REASON. These words, in a statute pro-
viding for the withdrawal of the names of peti-
tioners for a road improvement district when val-
id reasons therefor are presented, mean a sound
sufficient reason, such as fraud, deceit, misrepre-
sentation, duress, etc., a reason upon which the
petitioner could support or justify his change in
attitude. The word "valid" necessarily possesses
an element of legal strength and force, and incon-
sistent positions have no such force. Echols v.
Trice, 130 Ark. 97, 196 S.W. 801, 802.
VALIDATE. To test the validity of; to make
valid; to confirm. Thompson v. Town of Frost-
proof, 89 Fla. 92, 103 So. 118. To sanction, to af-
firm. Peck v. Tugwell, 199 La. 125, 5 So.2d 524,
529.
VALIDATING STATUTE. A statute, purpose of
which is to cure past errors and omissions and
thus make valid what was invalid, but it grants
no indulgence for the correction of future errors.
Petition of Miller, 149 Pa.Super. 142, 28 A.2d 257,
258.
VALIDITY. Legal sufficiency, in contradistinc-
tion to mere regularity. Home Ins. Co. of New
York v. Gaines, 74 Colo. 62, 218 P. 907, 908.
VALIDITY OF A STATUTE. This phrase, with-
in the meaning of a constitutional provision relat-
ing to the jurisdiction of the Supreme Court, re-
fers to the power to enact the particular statute,
and not merely to its judicial construction or ap-
plication. Boehringer v. Yuma County, 15 Ariz.
546, 140 P. 507, 508.
VALIDITY OF A TREATY. The term "validity,"
as applied to treaties, admits of two descriptions—
necessary and voluntary. By the former is meant
that which results from the treaties having been
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made by persons authorized by, and for purposes
consistent with, the constitution. By voluntary
validity is meant that validity which a treaty,
voidable by reason of violation by the other party,
still continues to retain by the silent acquiescence
and will of the nation. It is voluntary, because it
is at the will of the nation to let it remain or
to extinguish it. The principles which govern and
decide the necessary validity of a treaty are of
a judicial nature, while those on which its vol-
untary validity depends are of a political nature.
2 Paine 688, as paraphrased in 5 Moore, Int.L.
Dig. 183.
VALIDITY OF A WILL. As used in will contest
statute has reference only to the genuineness or
legal sufficiency of will under attack. In re El-
liott's Estate, 22 Wash.2d 334, 156 P.2d 427, 438, 157
A.L.R. 1335.
VALLEY. As applied to a mountainous country,
lowlands, in contradistinction to mountain slopes
and ridges. Whaley v. Northern Pac. R. Co., C.C.
Mont., 167 F. 664.
VALOR BENEFICIORUM. L. Lat. The value
of every ecclesiastical benefice and preferment,
according to which the first fruits and tenths are
collected and paid. It is commonly called the
"king's books," by which the clergy are at pres-
ent rated. 2 Steph.Comm. 533; Wharton.
VALOR MARITAGII. Lat. Value of the marri-
age. The amount forfeited under the ancient ten-
ures by a ward to a guardian who had offered her
a marriage without disparagement, which she re-
fused. In feudal law, the guardian in chivalry
had the right of tendering to his infant ward a
suitable match, without "disparagement," (in-
equality,) which, if the infants refused, they for-
feited the value of the marriage (valor maritagii)
to their guardian; that is, so much as a jury
would assess, or any one would bona fide give, to
the guardian for such an alliance. 2 Bl.Comm.
70; Litt. § 110.
A writ which lay against the ward, on coming
of full age, for that he was not married, by his
guardian, for the value of the marriage, and this
though no convenient marriage had been offered.
Termes de la Ley.
VALUABLE. Of financial or market value; com-
manding or worth a good price; of considerable
worth in any respect; estimable. Webster, Dict.
VALUABLE CONSIDERATION. A class of con-
sideration upon which a promise may be founded,
which entitles the promisee to enforce his claim
against an unwilling promisor. Cockrell v. Mc-
Kenna, 103 N.J.L. 166, 134 A. 687, 688, 48 A.L.R.
234, some right, interest, profit, or benefit accru-
ing to one party, or some forbearance, detriment,
loss, or responsibility given, suffered, or under-
taken by the other. Onsrud v. Paulsen, 219 Wis.
1, 261 N.W. 541, 542. Industrial Loan & Invest-
ment Bank v. Dardine, 207 N.C. 509, 177 S.E. 635.
A gain or loss to either party is not essential, it
is sufficient if the party in whose favor the con-
tract is made parts with a right which he might
otherwise exert. Miller Ice Co. v. Crim, 299 Ill.
App. 615, 20 N.E.2d 347. It need not be translat-
able into dollars and cents, but is sufficient if it
consists of performance, or promise thereof, which
promisor treats and considers of value to him.
Asmus v. Longenecker, 131 Neb. 608, 269 N.W.
117, 119. It is not essential that the person to
whom the consideration moves should be bene-
fited, provided the person from whom it moves is,
in a legal sense, injured. The injury may consist
of a compromise of a disputed claim or forbear-
ance to exercise a legal right, the alteration in
position being regarded as a detriment that forms
a consideration independent of the actual value
of the right forborne. Boston Excelsior Co. v.
Amerio, 147 Misc. 1, 263 N.Y.S. 174. Mutual prom-
ises in contract is sufficient. Adams, Payne &
Gleaves v. Indiana Wood Preserving Co., 155 Va.
18, 154 S.E. 558, 562. For "Fair and Valuable Con-
sideration," see that title.
The following was said to be a valuable consideration:
Extension of time for payment of an obligation. C. I. T.
Corporation v. Furrow, 227 Iowa 961, 289 N.W. 697, 698:
Farmers & Merchants State Bank of Cawker City v. Hig-
gins, 149 Kan. 783, 89 P.2d 916. Marriage. Rutland v. Nor-
ris, 154 Fla. 894, 19 So.2d 418, 419. Release of property
subject to execution. Bradley v. DeLoach, 176 Ga. 142,
167 S.E. 301, 303. Pre-existing debt. Yale Oil Corporation
v. Sedlacek, 99 Mont. 411, 43 P.2d 887, 890. (Contra Dun-
can v. Jones, Tex.Civ.App., 153 S.W.2d 214, 216.) The dis
tinction between a good and a valuable consideration is
that the former consists of blood, or of natural love and
affection; as when a man grants an estate to a near rela-
tion from motives of generosity, prudence, and natural
duty; and the latter consists of such a consideration as
money, marriage which is to follow, or the like, which the
law esteems an equivalent given for the grant. 2 Bl.Comm.
297; Exum v. Lynch, 188 N.C. 392, 125 S.E. 15, 18; Gay v.
Fricks, 211 Ala. 119, 99 So. 846, 847; Barton v. Wilson,
116 Ark. 400, 172 S.W. 1032, 1034.
VALUABLE IMPROVEMENTS. As used in a
statute relating to the specific performance of a
parol contract for the purchase of real estate, im-
provements of such character as add permanent
value to the freehold, and such as would not like-
ly be made by one not claiming the right to the
possession and enjoyment of the freehold estate.
Improvements of a temporary and unsubstantial
character will not amount to such part perform-
ance as, when accompanied by possession alone,
will take the contract out of the operation of the
statute of frauds. Farr v. West, 152 Ga. 595, 110
S.E. 724. The valuable improvements may, how-
ever, be slight and of small value, provided they
are substantial and permanent in their nature,
beneficial to the freehold, and such as none but an
owner would ordinarily make. Vickers v. Robin-
son, 157 Ga. 731, 122 S.E. 405, 408.
VALUABLE PAPERS. This term as used in stat-
ute requiring that a holographic will devising
realty be found among the "valuable papers" of
decedent, in order to be effective, refers to such
papers as are regarded by the testator as worthy
of preservation and therefore in his estimation of
some value. Fransioli v. Podesta, 21 Tenn.App.
554, 113 S.W.2d 769, 773, 777. And does not refer
only to papers having money value. Pulley v.
Cartwright, 23 Tenn.App. 690, 137 S.W.2d 336, 340.
VALUABLE THING. This phrase, as used in
statutes relating to cheating and defrauding by-
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VALUE
VALUE. The utility of an object in satisfying,
directly or indirectly, the needs or desires of hu-
man beings, called by economists "value in use;"
or its worth consisting in the power of purchasing
other objects, called "value in exchange." Joint
Highway Dist. No. 9 v. Ocean Shore R. Co., 128
Cal.App. 743, 18 P.2d 413, 417. Also the estimated
or appraised worth of any object or property, cal-
culated in money.
Any consideration sufficient to support a simple
contract. Fowler v. Smith, 24 Ohio App. 324, 156
N.E. 913, 914; Veigel v. Johnson, 163 Minn. 288,
204 N.W. 36, 37; Wilbour v. Hawkins, 38 R.I. 116,
94 A. 856, 857.
The term is often used as an abbreviation for "valuable
consideration," especially in the phrases "purchaser for
value," "holder for value," etc. See Mays v. First State
Bank of Keller, Tex.Civ.App., 233 S.W. 326, 328; Farr-
Barnes Lumber Co. v. Town of St. George, 128 S.C. 67, 122
S.E. 24, 26.
In economic consideration, the word "value," when used
in reference to property, has a variety of significations,
according to the connection in which the word is em-
ployed. It may mean the cost of a production or reproduc-
tion of the property in question, when it is sometimes
called "sound value" ; or it may mean the purchasing
power of the property, or the amount of money which the
property will command in exchange, if sold, this being
called its "market value," which in the case of any par-
ticular property may be more or less than either the cost
of its production or its value measured by its utility to the
present or some other owner; or the word may mean the
subjective value of property, having in view its profitable-
ness for some particular purpose, sometimes termed its
"value for use." William H. Low Estate Co. v. Lederer
Realty Corporation, 35 R.I. 352, 86 A. 881, 883, Ann.Cas.
1916A, 341. See Agency of Canadian Car & Foundry Co. v.
Pennsylvania Iron Works Co., C.C.A.Pa., 256 F. 339, 344;
Babbitt v. Read, C.C.A.N.Y., 236 F. 42, 46; James v.
means of false pretenses, does not embrace a mere
pecuniary advantage devoid of any physical at-
tribute possessed by money, chattels, or valuable
securities. State v. Tower, 122 Kan. 165, 251 P.
401, 402, 52 A.L.R. 1160. The words include every-
thing of value, State v. Thatcher, 35 N.J.L. 452;
as a promissory note, State v. Tomlin, 29 N.J.L. 13;
or a physician's services; State v. Ball, 114 Miss,
505, 75 So, 373, 374, L.R.A.1917E, 1046.
Within gaming statutes, anything which affords
the lure to indulge the gambling instinct. State
v. Betti, 21 N.J.Misc. 345, 34 A.2d 91, 94.
VALUATION. The act of ascertaining the worth
of a thing. The estimated worth of a thing.
Lowenstein v. Schiffer, 38 App.Div. 178, 56 N.Y.S.
674; State v. Central Pac. R. Co., 7 Nev. 104.
Soniat v. Board of State Affairs, 146 La. 450, 83
So. 760, 762.
"Valuation" of itself does not levy tax upon person or
property, but is necessary step preliminary thereto. John-
son v. Board of Park Com'rs of Ft. Wayne, 202 Ind. 282,
174 N.E. 91, 94. For "Fair Valuation", see that title.
VALUATION LIST. In English law. A list of
all the ratable hereditaments in a parish, showing
the names of the occupier, the owner, the prop-
erty, the extent of the property, the gross esti-
mated rental, and the ratable value; prepared by
the overseers of each parish in a union under sec-
tion 14 of the union assessment committee act,
1862 (St. 25 & 26 Vict. c. 103,) for the purposes of
the poor rate. Wharton.
Speer, 69 Mont. 100, 220 P. 535, 537; Burroughs v. School
Dist. No. 2, Town of Richland, 155 Wis. 426, 144 N.W. 977,
978.
Salable value, actual value, market value, fair value, rea-
sonable value, and cash value may all mean the same thing
and may be designed to effect the same purpose. Burr.
Tax. 227. See Cummings v. Bank, 101 U.S. 162, 25 L.Ed.
903; Wood v. Syracuse School Dist. No. 1, 108 Kan. 1, 193
P. 1049, 1050; Gulf Compress Co. v. Insurance Co. of Penn-
sylvania, 129 Tenn. 586, 167 S.W. 859, 863; In re Woolsey's
Estate, 109 Neb. 138, 190 N.W. 215, 24 A.L.R. 1038.
"Value," as used in Const.U.S. art. 1, § 8, giving Con-
gress power to coin money and regulate the value thereof,
is the true, inherent, and essential value, not depending
upon accident, place, or person, but the same everywhere
and to every one, and in this sense regulating the value of
the coinage is merely determining and maintaining coinage
composed of certain coins within certain limitations at a
certain specific composition and wei g ht. Klattenburg v.
Qualsett, 114 Neb. 18, 205 N.W. 577, 578.
"Value" of land for purpose of taxation is represented
by price that would probably be paid therefor after fair
negotiations between willing seller and buyer. Thaw v.
Town of Fairfield, 132 Conn. 173, 43 A.2d 65, 67, 160 A.L.R.
679.
"Values," as used in tax statutes, are valuations of offi-
cials whose duty it is to make them. Wymore v. Markway,
338 Mo. 46, 89 S.W.2d 9, 13.
"Value" as it relates to stolen property is the market
value at the time and place of the taking, or, in case of
property without a market value, the cost of replacing it.
Patterson v. State, 138 Tex.Cr.R. 551, 137 S.W.2d 1030;
Givens v. State, 143 Tex.Cr.R. 277, 158 S.W.2d 535, 536.
As respects whether value of stolen property equals or
exceeds jurisdictional amount fixed by the National Stolen
Property Act, "value" of stolen property is market value
at time and place of taking, if it has a market value. Na-
tional Stolen Property Act, §§ 1-7, 18 U.S.C.A. § 413 et seq.
Husten v. United States, C.C.A.Minn., 95 F.2d 168.
In action to recover chattel, "value" means value at time
of trial, not at time of seizure thereof. Spear v. Auto
Dealers' Discount Corporation, 154 Misc. 801, 278 N.Y.S.
561.
"Value" as used in eminent domain proceeding means
market value, (which title see infra). Epstein v. Boston
Housing Authority, 317 Mass. 297, 58 N.E.2d 135, 137.
Under the Uniform Sales Act, "value" is any considera-
tion sufficient to support a simple contract. Blumberg v.
Taggart, 213 Minn. 39, 5 N.W.2d 388, 392.
For purposes of corporate reorganization, "value" is a
reasonable capitalization of future earnings as reasonably
foreseeable at date of reorganization. Commissioner of
Internal Revenue v. Marshall, C.C.A.2, 125 F.2d 943, 946.
Clear Value
Of an estate for the purpose of an inheritance
tax is what remains after all claims against it
have been paid. In re Hildebrand's Estate, 262
Pa. 112, 104 A. 866.
Face Value
See Face Value.
Fair and Equitable Value
See Fair and Equitable Value.
Fair and Reasonable Market Value
See Fair and Reasonable Market Value
Fair and Reasonable Value
See Fair and Reasonable Value.
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VALUE
Fair Cash Market Value
See Fair Cash Market Value.
Fair Cash Value
See Fair Cash Value.
Fair Value
See Fair Value.
Market Value
Fair value of property as between one who
wants to purchase it and another who desires
to sell it. Lincoln Joint Stock Land Bank v.
Board of Review of Sioux City, 227 Iowa, 1136,
290 N.W. 94, 95; People ex rel. Pennsylvania Tun-
nel & Terminal R. Co. v. Miller, Sup., 26 N.Y.S.2d
232, 236. What willing purchaser will give for
property under fair market conditions. People v.
F. H. Smith Co., 230 App.Div. 268, 243 N.Y.S. 446,
451. Not what the owner could realize at a forc-
ed sale, but the price he could obtain after rea-
sonable and ample time, such as would ordinarily
be taken by an owner to make a sale of like prop-
erty. Wade v. Rathbun, 23 Cal.App.2d Supp. 758,
67 P.2d 765, 766.
Net Value
The "reserve" or "net value" of a life insur-
ance policy is the fund accumulated out of the net
premiums during the earlier years of the policy
while the premium uniform throughout life or a
term of years exceeds the actual value of the risk,
and with the net premiums to be received in the
future is the exact mathematical equivalent of the
obligation incurred by the company. Hay v. Meri-
dian Life & Trust Co., 57 Ind.App. 536, 101 N.E.
651, 654. The "net value" of a policy is equivalent
to "reserve," and means that part of the annual
premium paid by insured which, according to the
American Experience Table of Mortality, must be
set apart to meet or mature the company's ob-
ligations to insured, the net value of a policy on
a given date being its actual value, its reserve.
Jefferson v. New York Life Ins. Co., 151 Ky. 609,
152 S.W. 780, 783.
True Value
At which property must be assessed is price
which would be paid therefor on assessing date
to willing seller, not compelled to sell, by willing
purchaser, not compelled to purchase. New York
Bay R. Co. v. Kelly, 22 N.J.Misc. 204, 37 A.2d 624,
628.
Value of Matter in Controversy
As used in the Judicial Code, § 24 (28 U.S.C.A. §
1331, et seq.), the pecuniary result to either party
which a judgment entered in the case would direct-
ly produce, either at once or in the future. El-
liott v. Empire Natural Gas Co., C.C.A.Kan., 4 F.
2d 493, 497.
Value of Plant in Successful Operation
Synonymous with "going value," or "going con-
cern value," meaning the additional value that a
purchaser will give for the properties and busi-
ness of the companies because they are going con
cerns with established businesses; the additional
value, over and above the fair and reasonable
value of the physical properties plus the work-
ing capital, which a customer would pay for
the property because it is a going concern. Pa-
cific Telephone & Telegraph Co. v. Whitcomb, D.
C.Wash., 12 F.2d 279, 284.
Value Received
A phrase usually employed in a bill of exchange
or promissory note, to denote that a lawful consid-
eration has been given for it. Baker v. Thomas,
102 Neb. 401, 167 N.W. 407; Clayton v. Clayton, 125
N.J.L. 537, 17 A.2d 496, 497. It is prima facie evi-
dence of consideration; Palmer v. Blanchard, 113
Me. 380, 94 A. 220, 223, Ann.Cas.1917A, 809; Mos-
es v. Bank, 13 S.Ct. 900, 149 U.S. 298, 37 L.Ed.
743; although not necessarily in money, Osgood
v. Bringolf, 32 Iowa, 265.
The phrase when put in a bill of exchange, will bear
two interpretations : The drawer of the bill may be pre-
sumed to acknowledge the fact that he has received value
from the payee, 3 Maule & S. 351; Benjamin v. Tillman,
2 McLean 213, Fed.Cas.No.1,304; or when the bill has been
made payable to the order of the drawer and accepted, it
implies that value has been received by the acceptor. 5
Maule & S. 65; Thurman v. Van Brunt, 19 Barb.. N.Y.,
409. The words are not required by the Uniform Negoti-
able Instruments Act.
VALUED POLICY. One in which a definite val-
uation is by agreement of both parties put on the
subject-matter of the insurance and written in the
face of the policy and such value, in the absence
of fraud or mistake, is conclusive on the parties.
Lee v. Hamilton Fire Ins. Co., 130 Misc.Rep. 165,
223 N.Y.S. 441, 442. One in which both property
insured and loss are valued. Hight v. Maryland
Ins. Co., 69 S.D. 320, 10 N.W.2d 285, 288.
It is distinguished from an "open policy", which is one
where the value of the property insured is not settled in
the policy. Ellis v. Hartford Livestock Ins. Co., 293 Ky.
683, 170 S.W.2d 51, 53.
VALUELESS. Worthless. Central of Georgia
Ry. Co. v. Cooper, 14 Ga.App. 738, 82 S.E. 310, 311.
VALUER. A person whose business is to ap-
praise or set a value upon property.
VALVASORS, or VIDAMES. An obsolete title of
dignity next to a peer. 2 Inst. 667; 2 Steph.
Comm. 612.
VANA EST ILLA POTENTIA QUZE NUNQUAM
VENIT IN ACTUM. That power is vain [idle or
useless] which never comes into action, [which is
never exercised.] 2 Coke, 51.
VANDALIC. Willfully or ignorantly destructive.
Unkelsbee v. Homestead Fire Ins. Co. of Balti-
more, D.C.Mun.App., 41 A.2d 168, 170.
VANDALISM. Willful or ignorant destruction
of artistic or literary treasures; hostility to or
contempt for what is beautiful or venerable. Un-
kelsbee v. Homestead Fire Ins. Co. of Baltimore,
D.C.Mun.App., 41 A.2d 168, 170, 172.
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VASSAL
VANI TDIORES SUNT IESTIMANDL QUI NON
CADUNT IN CONSTANTEM VIRUM. Those
are to be regarded as idle fears which do not af-
fect a steady [firm or resolute] man. 7 Coke,
27.
VANI TIMORIS JUSTA EXCUSATIO NON EST.
A frivolotis fear is not a legal excuse. Dig. 50,
17, 184; 2 Inst. 483; Broom, Max. 256, n.
VANTARIUS. L. Lat. In old records. A fore-
footman. Spelman; Cowell.
VARA, A Spanish-American measure of length,
equal to 33 English inches or a trifle more or less,
varying according to local usage. See U. S. v.
Perot, 98 U.S. 428, 25 L.Ed. 251.
A measure used in Mexican land grants equal
to 32.9927 inches. Ainsa v. U. S., 16 S.Ct. 544, 161
U.S. 219, 40 L.Ed. 673.
VARDA. In old Scotch law. Ward; custody;
guardianship. Answering to "warda," in old Eng-
lish law. Spelman.
VARENNA. In old Scotch law. A warren. An-
swering to "warenna," in old English law. Spel-
man.
VARIANCE. In pleading and practice. A dis-
crepancy or disagreement between two instru-
ments or two steps in the same cause, which ought
by law to be entirely consonant. Thus, if the
evidence adduced by the plaintiff does not agree
with the allegations of his declaration, it is a var-
iance; and so if the statement of the cause of
action in the declaration does not coincide with
that given in the writ. See Keiser v. Topping, 72
Ill. 229; Mulligan v. U. S., 56 C.C.A. 50, 120 F. 98;
State v. Wadsworth, 30 Conn. 57; Mathews v. U.
S., C.C.A.Neb., 15 F.2d 139, 142. For "Fatal Vari-
ance," see that title.
A disagreement between the allegations and the proof
in some matter which, in point of law, is essential to the
charge or claim. Franks v. Reeder, 101 Okl. 18, 223 P. 126
127; State v. Brozich, 108 Ohio St. 559, 141 N.E. 491. A
substantial departure in the evidence adduced from the
issue as made by the pleadings. Sposedo v. Merriman, 111
Me. 530, 90 A. 387, 392; Davidson Grocery Co. v. Johnston,
24 Idaho, 336, 133 P. 929, 931, Ann.Cas.1915C, 1129. The
test of materiality of "variance" in an information is
whether the pleading so fully and correctly informs a de-
fendant of offense with which he is charged that, taking
into account proof which is introduced against him, he is
not misled in making his defense. People v. Guerrero,
22 Ca1.2d 183, 137 P.2d 21, 24.
To constitute a "variance," there must be a real and
tangible difference between the allegations in the pleading
and the proof offered in its support. James A. C. Tait &
Co. v. Stryker, 117 Or. 338, 243 P. 104, 106. The difference
must be substantial and material. Epstein v. Waas, 28
N.M. 608, 216 P. 506, 508; Johnson v. Doubleday, 92 Vt.
267, 102 A. 1038, 1040. It must be one that actually mis-
leads the adverse party to his prejudice in maintaining his
action or defense on the merits, German-American Bank of
Seattle v. Wright, 85 Wash. 460, 148 P. 769, 771, Ann.Cas.
1917D, 381; or, in criminal cases, one which might mis-
lead the defense or expose a defendant to being put twice
in jeopardy for the same offense, Brashears v. State, 38
Okl.Cr. 175, 259 P. 665, 667; McCallister v. State, 217 Ind.
65, 26 N.E.2d 391, 393.
A "variance" in criminal case is an essential difference
between accusation and proof, best illustrated where one
crime is alleged and another proved, and test of material
variance is whether offense alleged in a second indictment
is the same as that alleged in the first, and accordingly a
plea of autrefois acquit must be upon a prosecution for the
identical offense. U. S. v. Wills, C.C.A.Pa., 36 F.2d 855,
856.
"Variance," i. e., a disagreement between allegations
and proof in some matter which, in point of law, is essen-
tial to the claim or charge, differs from "repugnancy,"
which consists of two inconsistent allegations in one plead-
ing. Fowler v. State, 20 Okl.Cr. 410, 203 P. 900, 901.
"Variance" also differs from failure of proof. Gordon.
v. Pollock, 124 Okl. 64, 253 P. 1021, 1023. A variance oc-
curs when, though the pleading and proof do not exactly
correspond, they may be made to do so by amendment in
the discretion of the court and upon such terms and con-
ditions as may be just. Deligny v. Tate Furniture Co.,
170 N.C. 189, 86 S.E. 980, 984.
VARIATION. Difference in degrees between the
direction of the true pole and the magnetic pole;
it is comparatively fixed for any one locality, but
is not the same in different localities. The Aakre,
C.C.A.N.Y., 122 F.2d 469, 472.
VARIOUS, Separate. Simmons v. Ramsbottom,
51 Wyo. 419, 68 P.2d 153, 156.
VARRANTIZATIO. In old Scotch law. Warran-
ty.
VAS. Lat. In the civil law. A pledge; a surety;
bail or surety in a criminal proceeding or civil
action. Calvin.
VASECTOMY. A comparatively simple and pain-
less operation, performed by section (cutting) of
the vas deferens . or spermatic cord, or by a tying
off or ligaturing thereof;—sometimes performed
on rapists and other criminals (especially sexual
offenders), and on persons who are mentally de-
fective. Laws Iowa 1911, c. 129; Rem. & Bal.
Code (Wash.) § 2287 (Rem.Rev.Stat. § 2287) ; Rev.
Laws Nev. § 6293 (Comp.Laws 1929, § 9977). Some
of these and similar statutes have been declared
unconstitutional; Williams v. Smith, 190 Ind.
526, 131 N.E. 2; Mickle v. Henrichs, D.C.Nev., 262
F. 687; Smith v. Bd. of Examiners, 85 N.J.L. 46,
88 A. 963; but in 1927, the validity of a Virginia.
statute (Laws 1924, c. 394) providing for vasec-
tomy in the case of males and for salpingectomy
in the case of females was sustained in Buck v.
Bell, 47 .S.Ct. 584, 274 U.S. 200, 71 L.Ed. 1000, af-
firming 143 Va. 310, 130 S.E. 516, 51 A.L.R. 855.
Sterilization of the female may also be accom-
plished by an operation known as oOphorectomy
or ovariotomy. Acts Conn.1909, c. 209.
VASSAL. In feudal law. A feudal tenant or
grantee; a feudatory; the holder of a fief on a
feudal tenure, and by the obligation of perform-
ing feudal services. The correlative term was
"lord." The vassal himself might be lord of some
other vassal.
In after-times, this word was used to signify a
species of slave who owed servitude and was in
a state of dependency on a superior lord. 2 Bla.
Comm. 53.
VASSAL STATES. In international law. States
which are supposed to possess only those rights
and privileges which have been expressly granted
to them, but actually they seem to be well-nigh
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VASSALAGE
independent. Hershey, Int. L. 106. Egypt was
such; also Crete.
VASSALAGE. The state or condition of a vassal.
VASSELERIA. The tenure or holding of a vas-
sal. Cowell. ,
VASTUM. L. Lat. A waste or common lying
open to the cattle of all tenants who have right
of commoning. Cowell.
VASTUM FORESTIE VEL BOSCI. In old rec-
ords. Waste of a forest or wood. That part of
a forest or wood wherein the trees and underwood
were so destroyed that it lay in a manner waste
and barren. Paroch. Antiq, 351, 497; Cowell.
VAUDERIE. In old European law. Sorcery;
witchcraft; the profession of the Vaudois.
VAUDEVILLE. A species of theatrical enter-
tainment, composed of isolated acts forming a bal-
anced show. Hart v. B. F. Keith Vaudeville Ex-
change, C.C.A.N.Y., 12 F.2d 341, 342. And see
Princess Amusement Co. v. Wells, C.C.A.Tenn., 271
F. 226, 231.
VAVASORY. The lands that a vavasour held.
Cowell.
VAVASOUR. One who was in dignity next to a
baron. Britt. 109; Bract. lib. 1, c. 8. One who
held of a baron. Enc.Brit.
VEAL-MONEY. The tenants of the manor of
Bradford, in the county of Wilts, paid a yearly
rent by this name to their lord, in lieu of veal
paid formerly in kind. Wharton.
VECORIN. In old Lombardic law. The offense
of stopping one on the way; forestalling. Spel-
man.
VECTIGAL, ORIGINE IPSA, JUS CAZESARUM
ET REGUM PATRIMONIALE EST. Da y . 12.
Tribute, in its origin, is the patrimonial right of
emperors and kings.
VECTIGAL JUDICIARIUM. Lat. Fines paid to
the crown to defray the expenses of maintaining
courts of justice. 3 Salk. 33.
VECTIGALIA. In Roman law. Customs-duties;
taxes paid upon the importation or exportation of
certain kinds of merchandise. Cod. 4, 61. They
differed from tribute, which was a tax paid by
each individual.
Rent from state lands. Hunter, Rom.L. 901.
VECTURA. In maritime law. Freight.
VEGETABLE. A plant cultivated for food. State
v. Hurst, 149 Or. 519, 41 P.2d 1079, 1081.
A part or the whole of a herb used chiefly
for culinary purposes, but also frequently for
feeding domestic animals. In a comprehensive
sense, any living organism not possessed of ani-
mal life; a plant of any kind. There is no well-
drawn distinction between vegetables and fruits
in the popular sense; but it has been held by the
courts that all those which, like potatoes, carrots,
peas, celery, lettuce, tomatoes, etc., are eaten
(whether cooked or raw) during the principal
part of a meal are to be regarded as "vegetables,"
while those used for dessert are fruits. State v.
Hurst, 149 Or. 519, 41 P.2d 1079, 1080.
VEHICLE. That in or on which a person or thing
is or may be carried from one place to another,
especially along the ground, also through the air;
ally moving support or container fitted or used
for the conveyance of bulky objects; a means of
conveyance. Moffitt v. State Automobile Ins,
Ass'n, 140 Neb. 578, 300 N.W. 837, 838. Any car-
riage moving on land, either on wheels or runners;:
a conveyance; that which is used as an instru-
ment of conveyance, transmission or communica-
tion. Burford-Toothaker Tractor Co. v. Curry,
241 Ala. 350, 2 So.2d 420, 421; People v. Curnuch,
177 Misc. 606, 31 N.Y.S.2d 105, 107.
Any carriage, conveyance, or other artificial contrivance
used, or capable of being used, as a means of transporta-
tion on land,--not ordinarily including locomotives, cars,
and street cars which run and are operated only over and
upon a permanent track or fixed way, unless the context
of the ordinance 'or statute in question clearly indicates
an intention to the contrary. Conder v. Griffith, 61 Ind.
App. 218, 111 N.E. 816, 818; Rev.St.U.S. § 4 (1 U.S.C.A. §
4). The word includes a street sprinkler, St. Louis v.
Woodruff, 71 Mo. 92 ; but not a ferry boat, Duckwall v.
Albany, 25 Ind. 286; nor a domestic animal, unattached to
a vehicle or a conveyance. State v. One Black Horse Mule,
207 Ala. 277, 92 So. 548. It has also been held to include a
scraper used to remove snow from ice which was to be cut,
particularly since the scraper had facilities for dumping
and unloading and was horse-drawn. Berg v. Hetzler
Bros., 166 N.Y.S. 830, 179 App.Div. 551. A combined
thresher and cleaner, mounted on axles and wheels, while
being drawn from farm to farm. Vincent v. Taylor Bros.,
180 App.Div. 818, 168 N.Y.S. 287, 288. A bicycle; Sharkey
v. Herman Bros., 3 N.J.Misc. 126, 127 A. 525, 526; Tulsa
Ice Co. v. Wilkes, 54 Okl. 519, 153 P. 1169, 1171. A motor-
cycle; Knight v. Savannah Electric Co., 20 Ga.App. 314, 93
S.E. 17. And it includes an automobile; Shepard v. Find-
ley, 204 Iowa, 107, 214 N.W. 676, 678; Stanley v. Tomlin,
143 Va. 187, 129 S.E. 379, 382; even though, at the time of
the enactment of the legislation involved, automobiles were
not in use, U. S. v. One Cadillac Automobile, D.C.Tenn.,
2 F.2d 886, 888; City of Henderson v. Lockett, 157 Ky.
366, 163 S.W. 199, 201; White v. District of Columbia, 4
F.2d 163, 164, 55 App.D.C. 197. The term was held not to
include a street car in the following cases: City of Chicago
v. Keogh, 291 Ill. 188, 125 N.E. 881, 882; Harris v. John-
son, 174 Cal. 55, 161 P. 1155, 1156, L.R.A.1917C, 477, Ann.
Cas.1918E, 560; Reed v. Public Service Ry. Co., 89 N.J.L.
431, 99 A. 100; Monongahela Bridge Co. v. R. Co., 114 Pa.
484, 8 A. 233. Contra, Bradley v. Minneapolis St. Ry. Co.,
161 Minn. 322, 201 N.W. 606, 608, 46 A.L.R. 993.
As used in various statutes, however, the word is often
given a somewhat narrower meaning than that which
might be indicated by the above definition. Thus, it has
been held that the term is inapplicable to a hand sled,
Ide11 v. Day, 273 Pa. 34, 116 A. 506, 507, 20 A.L.R. 1429; to
a child's coaster, Wright v. Salzberger & Sons, 81 Cal.App.
690, 254 P. 671, 676; and to an elevator, Wilson v. C. Dor-
flinger & Sons, 218 N.Y. 84, 112 N.E. 567, 568, Ann.Cas.
1917D, 38, reversing Wilson v. C. Dorflinger & Sons, 170
App.Div. 119, 155 N.Y.S. 857, 858.
But as defined in the Tariff Act, it has a much broader
meaning, and includes any sort of conveyance used in the
transportation of passengers and merchandise either by
land or by water or through the air. Mellon v. Minneap-
olis, St. P. & S. S. M. Ry. Co., 56 App.D.C. 160, 11 F.2d
332, 334. United States v. One Pitcairn Biplane, Registra-
tion No. N.C.-5062, Engine No. A.D.-8285, D.C.N.Y., 11 F.
Supp. 24, 26.
VEHMGERICHT. See Fehmgericht.
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VENDETTA
VEIES. L. Fr. Distresses forbidden to be re-
plevied; the refusing to let the owner have his
cattle which were distrained. Kelham.
VEILINGS. As used in the tariff act, a material
chiefly or exclusively used for the making of veils.
A veil is a piece of cloth or other material, usual-
ly thin and light, designed to be worn over the
head and face as an ornament or to protect or
wholly or partly conceal the face from view. The
textile material which is used to mask or screen
the features resting beneath the face panels of
caskets would be commonly and popularly regard-
ed as veiling. Tiedeman & Sons v. U. S., 8 Ct.
Cust.App. 134, 135.
VEIN. In mining law. A continuous body of
mineral or mineralized rock, filling a seam or fis-
sure in the earth's crust, within defined bounda-
ries in the general mass of the mountain (which
boundaries clearly separate it from the neighbor-
ing rock), and having a general character of con-
tinuity in the direction of its length. San Fran-
cisco Chemical Co. v. Duffield, C.C.A.Wyo., 201
F. 830, 835; McMullin v. Magnuson, 102 Colo. 230,
78 P.2d 964, 968. It includes all deposits of miner-
al matter found through a mineralized zone or
belt coming from the same source, impressed with
the same forms, and appearing to have been creat-
ed by the same processes. Inyo Marble Co. v.
Loundagin, 7 P.2d 1067, 1072, 120 Cal.App. 298.
A requirement that a miner shall locate his claim "along
the vein" means along the out-crop or course of the apex,
and not along the strike. Stewart Mining Co. v. Bourne,
C.C.A.Idaho, 218 F. 327, 329.
The terms "principal," "original," and "primary," as
well as "secondary," "accidental," and "incidental," have
all been employed to describe the different veins found
within the same surface boundaries, but their meaning is
not entirely clear in all cases. They may refer to the rela-
tive importance or value of the different veins, or the rela-
tions to each other, or to the time of discovery, but the
words "secondary," "accidental," and "incidental" are
most frequently used to distinguish between the discovery
vein and other veins within the same surface boundaries.
Northport Smelting & Refining Co. v. Lone Pine-Suprise
Consol. Mines Co., D.C.Wash., 271 F. 105, 111.
Discovery Vein
That vein which served as a basis of the loca-
tion, in contradistinction to secondary, accidental,
and incidental veins. Northport Smelting & Re-
fining Co. v. Long Pine-Surprise Consol. Mines
Co., D.C.Wash., 271 F. 105, 113. The primary vein
for the purpose of locating a mining claim and de-
termining which are the end and which the side
lines. Where the discovery vein crosses the op-
posite side lines of the claim as located, the side
lines become end lines, not only with respect to
such vein, but for determination of extralateral
rights in any other vein which apexes within the
claim. Northport Smelting & Refining Co. v.
Lone Pine-Surprise Consol. Mines Co., C.C.A.
Wash., 278 F. 719, 720.
VEJOURS. Viewers; persons sent by the court
to take a view of any place in question, for the
better decision of the right. It signifies, also, such
as are sent to view those that essoin themselves
de malo lecti, (i. e., excuse themselves on ground
of illness) whether they be in truth so sick as
that they cannot appear, or whether they do coun-
terfeit. Cowell.
VEL NON: Or not.
These words appear in the phrase "devisavit vel non"
(q. v.), meaning, literally, "did he devise or not." 26 C.
J.S. p. 1296. Examples of their use by the courts may be
seen in the following quotations : "So the sufficiency vel
non of the order of publication is important" (Cone v.
Benjamin, 27 So.2d 90, 97, 157 Fla. 800) ; "the negligence
vel non of the owner was * * * for the jury" (John-
son v. Wood, 21 So.2d 353, 355, 155 Fla. 753); and "We
come at last to the merits vel non of this appeal" (Hol-
lywood, Inc., v. Clark, 15 So.2d 175, 185, 153 Fla. 501).
VELABRUM. In old English law. A tollbooth.
Cro.Jac. 122.
VELITIS JUBEATIS QUIRITES? Lat. Is it
your will and pleasure, Romans? The form of
proposing a law to the Roman people. Tayl.Civil
Law, 155.
VELLE NON CREDITUR QUI OBSEQUITUR IM-
PERIO PATRIS VEL DOMINI. He is not pre-
sumed to consent who obeys the orders of his
father or his master. Dig. 50, 17, 4.
VELTRARIA. The office of dog-leader, or cours-
er. Cowell.
VELTRARIUS. One who leads greyhounds.
Blount.
VELVET. In a secondary meaning, soft; smooth.
Chapin-Sacks Mfg. Co. v. Hendler Creamery Co.,
D.C.Md., 231 F. 550, 551; Chapin-Sacks Mfg. Co. v.
Hendler Creamery Co., C.C.A.Md., 254 F. 553, 555.
VENAL. Pertaining to something that is bought;
capable of being bought; offered for sale; mer-
cenary. Used usually in an evil sense, such pur-
chase or sale being regarded as corrupt and il-
legal.
VENARIA. Beasts caught in the woods by hunt-
ing.
VENATIO. Hunting. Cowell.
VEND. To transfer to another for a pecuniary
equivalent; to make an object of trade, especial-
ly by hawking or peddling; to sell. Goins v.
State, 194 Ark. 598, 108 S.W.2d 1082, 1083.
The term is not commonly applied to the sale of real
estate, although its derivatives "vendor" and "vendee"
are.
VENDEE. A purchaser or buyer; one to whom
anything is sold. Generally used of the purchaser
of real property, one who acquires chattels by_
sale being called a "buyer."
VENDENS EANDEM REM DUOBUS FALSARI-
US EST. He is fraudulent who sells the same
thing twice. Jenk.Cent. 107.
VENDETTA. A private blood feud, in which a
family seeks to avenge one of its members on
the offender or his family. Stephens v. Howells
Sales Co., D.C.N.Y., 16 F.2d 805, 808.
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VENDIBLE
VENDIBLE. Fit or suitable to be sold; capable
of transfer by sale; merchantable.
VENDITIE. In old European law. A tax upon
things sold in markets and public fairs.- Spelman.
VENDITIO. Lat. In the civil law. In a strict
sense, sale; the act of selling; the contract of sale,
otherwise called "emptio venditio." Inst. 3, 24.
Calvin.
In a large sense, any mode or species of aliena-
tion; any contract by which the property or own-
ership of a thing may be transferred. Inst. 3, 24.
Calvin.
VENDITION. Sale; the act of selling.
VENDITIONI EXPONAS. Lat. You expose to
sale. Richmond Cedar Works v. Stringfellow, D.
C.N.C., 236 F. 264, 272. The name of a writ of
execution, requiring a sale to be made, directed
to a sheriff when he has levied upon goods under
a fieri facias, but returned that they remained un-
sold for want of buyers; and in some jurisdictions
it is issued to cause a sale to be made of lands,
seized under a former writ, after they have been
condemned or passed upon by an inquisition.
Frequently abbreviated to "vend. ex." Beebe v.
U. S., 16 S.Ct. 532, 161 U.S. 104, 40 L.Ed. 633;
Ritchie v. Higginbotham, 26 Kan. 648; W. T. Car-
ter & Bro. v. Bendy, Tex.Civ.App., 251 S.W. 265,
272; State ex rel. First Nat. Bank v. Ogden, 173
Oki. 285, 49 P.2d 565, 567.
The writ gives no new authority to the sheriff but only
directs him to perform his duty under the execution. Fan-
nin's Ex'r v. Haney, 283 Ky. 68, 140 S.W.2d 630, 632.
VENDITOR. Lat. A seller; a vendor. Inst. 3,
24; Bract. fol. 41.
VENDITOR REGIS. In old English law. The
king's seller or salesman; the person who expos-
ed to sale those goods and chattels which were
seized or distrained to answer any debt due to the
king. Cowell.
VENDITRIX. Lat. A female vendor. Cod. 4, 51,
.3.
VENDOR. The person who transfers property by
sale, particularly real estate, "seller" being more
commonly used for one who sells personalty. The
latter may, however, with entire propriety, be
termed a vendor; Atlantic Refining Co. v. Van
Valkenburg, 265 Pa. 456, 109 A. 208, 210; e. g.,
a merchant; a retail dealer; Edgin v. Bell-Way-
land Co., Okl.Cr.App., 149 P. 1145, L.R.A.1915F,
916; sometimes, one who buys to sell; Common-
wealth v. Thorne, Neal & Co., 70 Pa.Super.Ct. 599,
602.
One who negotiates the sale, and becomes the
recipient of the consideration, though the title
comes to the vendee from another source, and not
from the vendor. Rutland v. Brister, 53 Miss.
685; Canavan v. Coleman, 204 Iowa 901, 216 N.W.
292, 293.
VENDOR AND PURCHASER ACT. The act of
37 & 38 Viet. c. 78, which substitutes forty for
sixty years as the root of title, and amends in
other ways the law of vendor and purchaser.
Mozley & Whiteley.
VENDOR'S LIEN. A creature of equity, a lien
implied to belong to a vendor for the unpaid pur-
chase price of land, where he has not taken any
other lien or security beyond the personal obliga-
tion of the purchaser. Special Tax School Dist.
No. 1 of Orange County v. Hillman, 131 Fla. 725,
179 So. 805, 809. An equitable security which aris-
es from the fact that a vendee has received from
his vendor property for which he has not paid
the full consideration, and such lien exists inde-
pendently of any express agreement. Sturdy v.
Smith, Mo.App., 132 S.W.2d 1033, 1037; Causer v.
Wilmoth, Mo.App., 142 S.W.2d 777, 779; Mollett
v. Beckman, Mo.App., 78 S.W.2d 886. 890.
Also, a lien existing in the unpaid vendor of
chattels, the same remaining in his hands, to the
extent of the purchase price, where the sale was
for cash, or on a term of credit which has expired,
or on an agreement by which the seller is to re-
tain possession. See Morgan v. Dalrymple, 59 N.
J.Eq. 22, 46 A. 664; Lee v. Murphy, 119 Cal. 364,
51 P. 549.
In English and American law a vendor's lien is excep-
tional in character, and is an importation from the civil
law, which found its recognition through courts of chan-
cery, on the equitable principle that the person who had
secured the estate of another ought not in conscience to be
allowed to keep it and not pay full consideration money,
and that to enforce that payment it was just that the ven-
dor should have a lien upon the property. Martin v. Beck-
er, 169 Cal. 301, 146 P. 665, 671, Ann.Cas.1916D, 171.
VENDUE. A sale; generally a sale at public auc-
tion; and more particularly a sale so made under
authority of law, as by a constable, sheriff, tax
collector, administrator, etc.
VENDUE MASTER. An auctioneer.
VENEREAL. Sexual; as, venereal diseases.
State v. Hollinshead, 77 Or. 473, 151 P. 710, 711.
VENEREAL DISEASE. One of several diseases
identified with sexual intercourse. Collective term
for gonorrhea, chancroid, and syphilis. Coleman
v. National Life & Accident Ins. Co., La.App., 145
So. 298, 299.
VENIA. A kneeling or low prostration on the
ground by penitents; pardon.
VENIA )ETATIS. A privilege granted by a
prince or sovereign, in virtue of which a person is
entitled to act, sui juris, as if he were of full age.
Story, Confl. Laws, § 74.
VENUE FACILITAS INCENTIVUM EST DELIN-
QUENDI. 3 Inst. 236. Facility of pardon is an
incentive to crime.
VENIRE. Lat. To come; to appear in court.
Sometimes used as the name of the writ for sum-
moning a jury, more commonly called a "venire
facias."
VENIRE DE NOVO. Venire facias de novo, which
title see.
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VENUE
VENIRE FACIAS. Lat. In practice. A judicial
writ, directed to the sheriff of the county in which
a cause is to be tried, commanding him that he
"cause to come" before the court, on a certain
day therein mentioned, twelve good and lawful
men of the body of his county, qualified according
to law, by whom the truth of the matter may be
the better known, and who are in no wise of kin
either to the plaintiff or to the defendant, to make
a jury of the county between the parties in the
action, because as well the plaintiff as the defend-
ant, between whom the matter in variance is,
have put themselves upon that jury, and that he
return the names of the jurors, etc. 2 Tidd, Pr.
777, 778; 3 Bl.Comm. 352.
VENIRE FACIAS AD RESPONDENDUM. A
writ to summon a person, against whom an indict-
ment for a misdemeanor has been found, to appear
and be arraigned for the offense. A justice's war-
rant is now more commonly used. Archb. Crim.
P1.81; Sweet.
VENIRE FACIAS DE NOVO. A fresh or new
venire, which the court grants when there has
been some impropriety or irregularity in return-
ing the jury, or where the verdict is so imperfect
or ambiguous that no judgment can be given upon
it, or where a judgment is reversed on error, and
a new trial awarded. See Bosseker v. Cramer, 18
Ind. 44; Maxwell v. Wright, 160 Ind. 515, 67 N.E.
267. "The ancient common-law mode of proceed-
ing to a new trial was by a writ of venire facias
de novo. The new trial is a modern invention, in-
tended to mitigate the severity of the proceeding
to attaint. While a venire de novo and new trial
are quite different, they are alike in that a new
trial takes place in both. The material difference
between them is that a venire de novo must be
granted upon matters appearing upon the face
of the record, but a new trial may be granted for
things out of the record. Lowry v. Indianapolis
Traction & Terminal Co., 77 Ind.App. 138, 126 N.E.
223, 225. See, also, 1 Wils. 48; 47 Am.L.Rev. 377.
The terms "venire facias de novo" and "venire de novo"
are now used interchangeably to denote a new trial, Bro-
die v. State, 202 Ind. 40 171 N.E. 585.
VENIRE FACIAS JURATORES. A judicial writ
directed to the sheriff, when issue was joined in
an action, commanding him to cause to come to
Westminster, on such a day, twelve free and law-
ful men of his county by whom the truth of the
matter at issue might be better known. This writ
was abolished by section 104 of the common-law
procedure act, 1852, and by section 105 a precept
issued by the judges of assize is substituted in its
place. The process so substituted is sometimes
loosely spoken of as a "venire." Brown. See,
also, Steph.Pl. 104; Cridland v. Floyd, 6 Serg. &
R. (Pa.) 414; 3 Chitty, Pr. 797.
VENIRE FACIAS TOT MATRONAS. A writ to
summon a jury of matrons to execute the writ de
ventre inspiciendo.
VENIREMAN. A member of a panel of jurors;
a juror summoned by a writ of venire facias.
VENIT ET DEFENDIT. L. Lat. In old pleading.
Comes and defends. The proper words of appear-
ance and defense in an action. 1 Ld. Raym. 117.
VENIT ET DICIT. Lat. In old pleading. Comes
and says. 2 Salk. 544.
VENTE. In French law. Sale; contract of sale.
VENTE A RIEMPRE. A conditional sale, in
which the seller reserves the right to redeem or
repurchase at the same price. The term is used in
Canada and Louisiana.
VENTE ALEATOIRE. A sale subject to an un-
certain event.
VENTE AUX ENCHERES. An auction.
VENTER. Lat. (ventre, Fr.) The belly; the
womb; the wife. Used in law as designating the
maternal parentage of children. Thus, where in
ordinary phraseology we should say that A. was
B.'s child by his first wife, he would be described
in law as "by the first venter." Brown. A child
is said to be en ventre sa mere before it is born;
while it is a foetus.
VENTRE INSPICIENDO. See De Ventre Inspi-
ciendo; Venire facias tot matronas.
VENTURE, v. To take (the) chances. Allan v.
Hargadine-McKittrick Dry Goods Co., 315 Mo. 254,
286 S.W. 16, 19.
VENTURE, n. An undertaking attended with
risk, especially one aiming at making money; bus-
iness speculation. McRee v. Quitman Oil Co.,
16 Ga.App. 12, 84 S.E. 487.
VENUE. Formerly spelled visne. Co.Litt. 125a.
In pleading and practice. A neighborhood; the
neighborhood, place, or county in which an in-
jury is declared to have been done, or fact de-
clared to have happened. 3 Bl.Comm. 294; Jack-
son v. State, 187 Ind. 694, 121 N.E. 114, 115; 4 C.
& P. 363; Heikes v. Com., 26 Pa. 513; Searcy v.
State, 4 Tex. 450; People v. Lafuente, 6 Cal. 202.
Also, the county (or geographical division) in
which an action or prosecution is brought for trial,
and which is to furnish the panel of jurors. Arm-
strong v. Emmet, 41 S.W. 87, 16 Tex.Civ.App. 242;
Paige v. Sinclair, 130 N.E. 177, 178, 237 Mass.
482; Commonwealth v. Reilly, 324 Pa. 558, 188 A.
574, 579; Heckler Co. v. Incorporated Village of
Napoleon, 56 Ohio App. 110, 10 N.E.2d 32, 35. It
relates only to place where or territory within
which either party may require case to be tried.
Cushing v. Doudistal, 278 Ky. 779, 129 S.W.2d
527, 528, 530. It has relation to convenience of
litigants and may be waived or laid by consent
of parties. Iselin v. La Coste, C.C.A.La., 147 F.
2d 791, 795.
"Venue," as a matter of procedure, does not arise until
an action is started. State ex rel. Helmes v. District Court
of Ramsey County, 206 Minn. 357, 287 N.W. 875.
"Venue" does not refer to jurisdiction at all. Argan-
bright v. Good, 46 Cal.App.2d Super. 877, 116 P.2d 186.
"Jurisdiction" of the court means the inherent power to
decide a case, whereas "venue" designates the particular
county or city in which a court with jurisdiction may hear
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VENUE
and determine the case. Southern Sand & Gravel Co. v.
Massaponax Sand & Gravel Corporation, 145 Va. 317, 133
S.E. 812, 813. Stanton Trust and Savings Bank v. John-
son, 104 Mont. 235, 65 P.2d 1188, 1189.
In the common-law practice, that part of the
declaration in an action which designates the
county in which the action is to be tried. Sweet.
Local Venue
In pleading. A venue which must be laid in a
particular county. When the action could have
arisen only in a particular county, it is local, and
the venue must be laid in that county. 1 Tidd,
Pr. 427; Deacon v. Shreve, 23 N.J.L. 204.
VENUE FACTS. Facts to be established at hear-
ing on plea of privilege. Central Motor Co. v.
Roberson, Tex.Civ.App., 139 S.W.2d 287, 289.
Facts which by statute constitute an exception to
the general right of a defendant to be sued in
the county of his residence. Crawford v. Sanger,
Tex Civ.App., 160 S.W.2d 115, 116.
VENUE JURISDICTION. Power of the particu-
lar court to function. Brand v. Pennsylvania R.
Co., D.C.Pa., 22 F.Supp. 569, 571.
VERANDA. A porch; a portico; a covered place
of entrance to a building, differentiated from its
principal mass. Hieronimus v. Moran, 272 Ill.
254, 111 N.E. 1022, 1025.
VERAY. L. Fr. True. An old form of vrai.
Thus, veray, or true tenant, is one who holds in
fee-simple; veray tenant by the manner, is the
same as tenant by the manner, (q. v.,) with this
difference only: that the fee-simple instead of
remaining in the lord, is given by him or by the
law to another. Ham. N.P. 393, 394.
VERBA. Lat. (Plural of verbum.) Words.
VERBA ACCIPIENDA SUNT CUM EFFECTU,
UT SORTIANTUR EFFECTUM. Words are to be
received with effect, so that they may produce
effect. Bac.Max.
VERBA ACCIPIENDA SUNT SECUNDUM SUB-
JECTAM MATERIAM. 6 Coke, 62. Words are
to be understood with reference to the subject-
matter.
VERBA ACCIPIENDA UT SORTIANTUR EF-
FECTUIVI. Words are to be taken so that they
may have some effect. 4 Bacon, Works 258.
VERBA 2EQUIVOCA, AC IN DUBIO SENSU PO-
SITA, INTELLIGUNTUR DIGNIORI ET POTEN-
TIORI SENSU. Equivocal words, and such as
are put in a doubtful sense, are [to be] understood
in the more worthy and effectual sense [in their
best and most effective sense]. 6 Coke, 20a.
VERBA ALIQUID OPERARI DEBENT; DEB-
ENT INTELLIGI UT ALIQUID OPERENTUR.
8 Coke, 94. Words ought to have some opera-
tion; they ought to be interpreted in such a way
as to have some operation.
VERBA ALIQUID OPERARI DEBENT, VERBA
CUM EFFECTU SUNT ACCIPIENDA. Words
are to be taken so as to have effect. Bacon, Max.
Reg. 3, p. 47. See 1 Duer, Ins. 210, 211, 216.
VERBA ARTIS EX ARTE. Terms of art should
be explained from the art. 2 Kent, Comm. 556,
note.
VERBA CANCELLARIX. Words of the chan-
cery. The technical style of writs framed in the
office of chancery. Fleta, lib. 4, c. 10, § 3.
VERBA CHARTARUM FORTIUS ACCIPIUNTUR
CONTRA PROFERENTEM. The words of char-
ters are to be received more strongly against the
grantor [or the person offering them]. Co. Litt.
36; Broom, Max. 594; Bacon, Max.Reg. 3; Noy,
Max., 9th ed. p. 48; 8 Term 605; 15 East 546; 1
Ball. & B. 335; 2 Pars. Con. 22.
VERBA CUM EFFECTU ACCIPIENDA SUNT.
Bac. Max. 3. Words ought to be used so as to
give them their effect.
VERBA CURRENTIS MONETAE, TEMPUS SOL-
UTIONIS DESIGNANT. Da y . 20. The words
"current money" designate current at the time of
payment.
VERBA DEBENT INTELLIGI CUM EFFECTU,
UT RES MAGIS VALEAT QUAM PEREAT.
Words ought to be understood with effect, that
a thing may rather be preserved than destroyed.
2 Smith, Lead. Cas. 530.
VERBA DEBENT INTELLIGI UT ALIQUID OP-
ERENTUR. Words ought to be understood so as
to have some operation. 8 Coke, 94a.
VERBA DICTA DE PERSONA INTELLIGI DE-
BENT DE CONDITIONE PERSONAE. Words
spoken of a person are to be understood of the
condition of the person. 2 Rolle, 72.
VERBA FORTIUS ACCIPIUNTUR CONTRA
PROFERENTEM. Words are to be taken most
strongly against him who uses them. Bac. Max.
11, reg. 3.
VERBA GENERALIA GENERALITER SUNT
INTELLIGENDA. 3 Inst. 76. General words
are to be generally understood.
VERBA GENERALIA RESTRINGUNTUR AD
HABILITATEM REI VEL APTITUDINEM PER-
SONAE. General words must be narrowed either
to the nature of the subject-matter or to the apti-
tude of the person. Broom, Max. 646; Bacon,
Max.Reg. 10; 11 C.B. 254, 356.
VERBA ILLATA (RELATA) INESSE VIDEN-
TUR. Words referred to are to be considered as
if incorporated. Broom, Max. 674, 677; 11 Mees.
& W. 183; 10 C.B. 261, 263, 266.
VERBA IN DIFFERENTI MATERIA PER PRI-
US, NON PER POSTERIUS, INTELLIGENDA
SUNT. Words on a different subject are to be
understood by what precedes, not by what comes
after. A maxim of the civil law. Calvin.
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VERBAL
VERBA INTELLIGENDA SUNT IN CASU POS-
SIBILI. Words are to be understood in [or "of,"
or "in reference to"] a possible case. A maxim
of the civil law. Calvin.
VERBA INTENTION!, NON E CONTRA, DE-
BENT INSERVIRE. 8 Coke, 94. Words ought
to be made subservient to the intent, not the in-
tent to the words. 6 Allen (Mass.) 324; Bailey v.
Abington, 201 Ark. 1072, 148 S.W.2d 176, 179.
VERBA ITA SUNT INTELLIGENDA, UT RES
MAGIS VALEAT QUAM PEREAT. The words
[of an instrument] are to be so understood, that
the subject-matter may rather be of force than
perish, [rather be preserved than destroyed; or,
in other words, that the instrument may have
effect, if possible.] Bac. Max. 17, in reg. 3; Plowd.
156; 2 Bl.Comm. 380; 2 Kent, Comm. 555.
VERBA MERE , 7EQUIVOCA, SI PER COMMUN.
EM USUM LOQUENDI IN INTELLECTU CERTO
SUMMUNTUR, TALIS INTELLECTUS PR1EF-
ERENDUS EST. [In the case of] words merely
equivocal, if they are taken by the common usage
of speech in a certain sense, such sense is to be
preferred. A maxim of the civil law. Calvin.
VERBA NTHIL OPERARI MELHJS EST QUAM
ABSURDE. It is better that words should have
no operation at all than [that they should operate]
absurdly. A maxim of the civil law. Calvin.
VERBA NON TAM INTUENDA, QUAM CAUSA
ET NATURA REI, UT MENS CONTRAHEN-
TIUM EX EIS POTIUS QUAM EX VERBIS AP-
PAREAT. The words [of a contract] are not so
much to be looked at as the cause and nature of
the thing, [which is the subject of it,] in order
that the intention of the contracting parties may
appear rather from them than from the words.
Calvin.
VERBA OFFENDI POSSUNT, IMO AB EIS RE-
CEDERE LICET, UT VERBA AD SANUM INTEL-
LECTUM REDUCANTUR. Words may be op-
posed, [taken in a contrary sense,] nay, we may
disregard them altogether, in order that the [gen-
eral] words [of an instrument] may be restored
to a sound meaning. A maxim of the civilians.
Calvin.
VERBA ORDINATION'S QUANDO VERIFICA-
RI POSSUNT IN SUA VERA SIGNIFICATIONE,
TRAHI AD EXTRANEUM INTELLECTUAL NON
DEBENT. When the words of an ordinance can
be carried into effect in their own true meaning,
they ought not to be drawn to a foreign intend-
ment. A maxim of the civilians. Calvin.
VERBA POSTERIORA PROPTER CERTITUDIN-
EM ADDITA, AD PRIORA QUi rE CERTITUDINE
INDIGENT, SUNT REFERENDA. Subsequent
words, added for the purpose of certainty, are to
be referred to the preceding words which require
the certainty. Wing. Max. 167, max. 53; Broom,
Max. 586; 6 Coke, 236.
VERBA PRECARIA. In the civil law. Precatory
words; words of trust, or used to create a trust.
VERBA PRO RE ET SUBJECTA MATERIA AC-
CIPI DEBENT. Words ought to be understood
in favor of the thing and subject-matter. A max-
im of the civilians. Calvin.
VERBA QUIE ALIQUID OPERARI POSSUNT
NON DEBENT ESSE SUPERFLUA. Words
which can have any kind of operation ought not
to be [considered] superfluous. Calvin.
VERBA, QUANTUMVIS GENERALIA, AD AP-
TITUDINEM RESTRINGANTUR, ETIAMSI NUL-
LAM ALIAM PATERENTUR RESTRICTIONEM.
Words, howsoever general, are restrained to fit-
ness, (i. e., to harmonize with the subject-mat-
ter,) though they would bear no other restric-
tion. Spiegelius.
VERBA RELATA HOC MAXIME OPERANTUR
PER REFERENTIAM, UT IN EIS INESSE VI-
DENTUR. Related words [words connected with
others by reference] have this particular operation
by the reference, that they are considered as being
inserted in those [clauses which refer to them.]
Co. Litt. 9b, 359a. Words to which reference is
made in an instrument have the same effect and
operation as if they were inserted in the clauses
referring to them. Broom, Max. 673; 14 East
568.
VERBA RELATA INESSE VIDENTUR. Words
to which reference is made seem to be incorporat-
ed. 11 Cush. (Mass.) 137.
VERBA SECUNDUM MATERIAM SUBJECTAM
INTELLIGI NEMO EST QIJI NESCIAT. There
is no one who does not know that words are to
be understood according to their subject-matter.
Calvin.
VERBA SEMPER ACCIPIENDA SUNT IN MIT-
IORI SENSU. Words are always to be taken in
the milder sense. 4 Coke, 13a.
VERBA STRICT +, SIGNIFICATION'S AD LAT-
AM EXTEND! POSSUNT, SI SUBSIT RATIO.
Words of a strict or narrow signification may be
extended to a broad meaning, if there be ground
in reason for it. A maxim of the civilians. Cal-
vin; Spiegelius.
VERBA SUNT INDICES ANIMI. Words are the
indices or indicators of the mind or thought.
Latch, 106.
VERBAL. Strictly, of or pertaining to words;
expressed in words, whether spoken or written,
but commonly in spoken words; hence, by confu-
sion, spoken; oral. Webster, Dict. Parol; by
word of mouth; as, verbal agreement, verbal evi-
dence; or written, but not signed, or not execut-
ed with the formalities required for a deed or
prescribed by statute in particular cases. Mus-
grove v. Jackson, 59 Miss. 390.
VERBAL ACT DOCTRINE. Under this doctrine,
utterances accompanying some act or conduct to
which it is desired to give legal effect are admissi-
ble where conduct to be characterized by words is
material to issue and equivocal in its nature, and
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VERBAL
words accompany conduct and aid in giving it le-
gal significance. Keefe v. State, 50 Ariz. 295, 72
P.2d 425, 427.
Under doctrine, where declarations of an individual are
so connected with his acts as to derive a degree of credit
from such connection, independently of the declaration, the
declaration becomes part of the transaction and is admis-
sible. American Employers Ins. Co. v. Wentworth, 90
N.H. 112, 5 A.2d 265, 269.
The "verbal act doctrine" and the "res gestaa doctrine"
coincide practically and serve equally to admit certain
sorts of statements, but they are nevertheless wholly dis-
tinct in their nature and in their right to exist. American
Employers Ins. Co. v. Wentworth, 90 N.H. 112, 5 A.2d 265,
269.
VERBAL NOTE. A memorandum or note, in di-
plomacy, not signed, sent when an affair has con-
tinued a long time without any reply, in order
to avoid the appearance of an urgency which
perhaps is not required; and, on the other hand,
to guard against the supposition that it is forgot-
ten, or that there is an intention of not prosecuting
it any further. Wharton.
VERBAL PROCESS. In Louisiana. ProcOs ver-
bal, (q. v.).
VERBIS STANDUM UBI NULLA AMBIGUITAS.
One must abide by the words where there is no
ambiguity. Tray. Lat. Max. 612.
VERBUM IMPERFECT! TEMPORIS REM AD-
HUC IMPERFECTAM SIGNIFICAT. The im-
perfect tense of the verb indicates an incomplete
matter. Mactier v. Frith, 6 Wend. (N.Y.) 103, 120,
21 Am.Dec. 262.
VERDERER, or VERDEROR. An officer of the
king's forest, who is sworn to maintain and keep
the assizes of the forest, and to view, receive, and
enroll the attachments and presentments of all
manner of trespasses of vert and venison in the
forest. Manw. c. 6, § 5.
VERDICT. From the Latin "veredictum," a true
declaration. State v. Blue, 134 La. 561, 64 So. 411,
413; Clark v. State, 170 Tenn. 499, 97 S.W.2d 644,
646. In practice. The formal and unanimous de-
cision or finding made by a jury, impaneled and
sworn for the trial of a cause, and reported to
the court (and accepted by it), upon the matters
or questions duly submitted to them upon the trial.
Sitterson v. Sitterson, 191 N.C. 319, 131 S.E. 641,
642, 51 A.L.R. 760; Roth v. East Connellsville
Coke Co., 242 Pa. 23, 88 A. 781. A declaration of
the truth as to matters of fact submitted to jury.
Groves v. State, 162 Ga. 161, 132 S.E. 769, 770;
Arcadia Timber Co. v. Evans, 304 Mo. 674, 264
S.W. 810. The definitive answer given by the jury
to the court concerning the matters of fact com-
mitted to the jury for their deliberation and de-
termination. Ralston v. Stump, 75 Ohio App. 375,
62 N.E.2d 293, 294.
A true response of 12 men to the issues in the case, ar-
rived at after a consideration of all the evidence in the
case, by each juror acting independently and voluntarily
in forming his conclusion, or the concurrent coincident
conclusion of the 12. Roberts v. State, 26 Ala.App. 331,
159 So. 373, 374.
Explanations or comments in a written verdict are no
part of the "verdict" of the jury but are mere "surplus-
age". Anderson v. Penn Hall Co., D.C.Pa., 47 F.Supp. 691,
692.
Until accepted by the court, a finding of the jury is not
a 'verdict." Schulman v. Stock, 89 Conn. 237, 93 A. 531.
Anderson v. Penn Hall Co., D.C.Pa., 47 F.Supp. 691, 692.
The only "verdict" is that which the jury announces
orally to the court, and which is received and recorded at
direction of court as the jury's finding.
Although in common language, the word may be used in
a more extended sense, it has a well-defined signification
in law. It means the decision of a jury, and not the deci-
sion of a court or a referee or a commissioner. Kerner v.
Petigo, 25 Kan. 656. "Decision" bears the same relation
to non jury cases as "verdict" to jury cases, and a "ver-
dict" is a conclusion upon the facts, and in effect a direc-
tion for judgment, while a "decision" is an order for judg-
ment, and determines the judgment to be entered. Scho-
field v. Baker, D.C.Wash., 242 F. 657, 658.
Adverse Verdict
Where a party, appealing from an allowance of
damages by commissioners, recovers a verdict in
his favor, but for a less amount of damages than
had been originally allowed, such verdict is ad-
verse to him, within the meaning of his under-
taking to pay costs if the verdict should be ad-
verse to him. Hamblin v. Barnstable County, 16
Gray (Miss.) 256.
Chance Verdict
One determined by hazard or lot, and not by
the deliberate understanding and agreement of
the jury. Goodman v. Cody, 1 Wash.T. 335, 34
Am.Rep. 808; Improvement Co. v. Adams, 1 Colo.
App. 250, 28 P. 662.
A verdict is not a "chance verdict" merely because, in
arriving at the amount, the jury took each juror's estimate
of what should be assessed as the damages and divided the
total by the number of jurors, and afterward knowingly
and understandingly agreed that such quotient should be
the amount of the verdict. Great Northern Ry. Co. v.
Lenton, 31 N. D. 555, 154 N.W. 275, 277. See, also, Foley v.
Hornung, 35 Cal.App. 304, 169 P. 705, 709. See Quotient
Verdict, infra.
Compromise Verdict
One which is the result, not of justifiable con-
cession of views, but of improper compromise of
the vital principles which should have controlled
the decision. Goelet v. Matt J. Ward Co., 155 C.
C.A. 9, 242 F. 65, 67. Although it is proper for
jurors to harmonize their views and reach a ver-
dict with proper regard for each other's opinions,
it is not proper for any juror to surrender his con-
scientious convictions on any material issue in
return for a relinquishment by others of their like
settled opinions on another issue, producing a re-
sult which does not command the approval of the
whole panel. Snyder v. Portland Ry., Light &
Power Co., 107 Or. 673, 215 P. 887, 889.
Excessive Verdict
See Excessive Verdict.
False Verdict
One obviously opposed to the principles of right
and justice; an untrue verdict. Formerly, if a
jury gave a false verdict, the party injured by it
might sue out and prosecute a writ of attaint
against them, either at common law or on the
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statute 11 Hen. VII. c. 24, at his election, for the
purpose of reversing the judgment and punishing
the jury for their verdict; but not where the jury
erred merely in point of law, if they found ac-
cording to the judge's direction. The practice of
setting aside verdicts and granting new trials, how-
ever, so superseded the use of attaints that there
is no instance of one to be found in the books or
reports later than in the time of Elizabeth, and it
was altogether abolished by 6 Geo. IV. c. 50, § 60.
Wharton.
General Verdict
A verdict whereby the jury find either for the
plaintiff or for the defendant in general terms;
the ordinary form of a verdict. Glenn v. Sum-
ner, 10 S.Ct. 41, 132 U.S. 152, 33 L.Ed. 301; Childs
v. Carpenter, 87 Me. 114, 32 A. 780. A finding by
the jury in the terms of the issue referred to
them. Settle v. Alison, 52 Am.Dec. 393, 8 Ga. 208.
Tidd, Pr. 798. That by which the jury pronounces
generally on all of the issues in favor of plaintiff
or defendant. Skelton v. City of Newberg, 76 Or.
126, 148 P. 53, 55; Cleveland, C. C. & St. L. Ry.
Co. v. Wolf, 189 Ind. 585, 128 N.E. 38, 40. That
by which they pronounce generally upon all or
any of the issues, either in favor of the plaintiff
or defendant;--distinguished from a special ver-
dict, which is that by which the jury finds facts
only. Comp.Stat. Ok1.1921, § 551 (Code 1931, §
369).
A "general verdict" is one by which the jury pronounces
at the same time on the facts and the law, either in favor
of the plaintiff or the defendant. Schofield v. Baker, D.C.
Wash., 242 F. 657, 658; Co.Litt. 228; 4 Bla.Comm. 461. A
general verdict of guilty in a criminal case means guilty
on every count. Simmons v. State, 162 Ga. 316, 134 S.E.
54, 55.
Open Verdict
A verdict of a coroner's jury which finds that
the subject "came to his death by means to the
jury unknown," or "came to his death at the hands
of a person or persons to the jury unknown," that
is, one which leaves open either the question
whether any crime was committed or the identity
of the criminal.
Partial Verdict
In criminal law, a verdict by which the jury ac-
quit the defendant as to a part of the accusation
and find him guilty as to the residue. State v.
McGee, 33 S.E. 353, 55 S.C. 247, 74 Am.St.Rep. 741;
U. S. v. Watkins, 28 F.Cas. 419.
Privy Verdict
One given after the judge has left or adjourned
the court, and the jury, being agreed, in order to
be delivered from their confinement, obtain leave
to give their verdict privily to the judge out of
court. Such a verdict is of no force unless after-
wards affirmed by a public verdict given openly in
court. This practice is now superseded by that
of rendering a sealed verdict. See Young v. Sey-
mour, 4 Neb. 89.
Public Verdict
A verdict openly delivered by the jury in court.
Withee v. Rowe, 45 Me. 571.
Quotient Verdict
A money verdict the amount of which is fixed
by the following process: Each juror writes down
the sum he wishes to award by the verdict, and
these amounts are all added together, and the to-
tal is divided by twelve, (the number of jurors,)
the quotient being the verdict of the jury by their
agreement. Speer v. State, 130 Ark. 457, 198 S.W.
113, 115'; St. Louis & S. F. R. Co. v. Brown, 45
Okl. 143, 144 P. 1075, 1077; Hamilton v. Owego
Water Works, 22 App.Div. 573, 48 N.Y.S. 106. To
invalidate a verdict of this kind, it must appear
that, in advance of the computation, there was an
agreement to be bound by the result. In re Hav-
enmaier's Estate, 163 Minn. 218, 203 N.W. 958, 959;
Great Northern Ry. Co. v. Lenton, 154 N.W. 275,
277, 31 N.D. 555; Carter v. Marshall Oil Co., 185
Iowa 416, 170 N.W. 798, 800.
Sealed Verdict
See Sealed.
Special Verdict
A special finding of the facts of a case by a jury,
leaving to the court the application of the law to
the facts thus found. 1 Archb.Pr.K.B. 213; 3
Bl.Comm. 377; Statler v. U. S., 15 S.Ct. 616, 157
U.S. 277, 39 L.Ed. 700; Samlin v. U. S., C.C.A., 278
F. 170, 172. A special finding by the jury on each
material issue, of the case. Ford v. Brown, 45
Nev. 202, 200 P. 522, 525.
A "special verdict" exhibits the legitimate facts and
leaves the legal conclusions to the court, and must cover
all the issues in the case, while an answer to a special
interrogatory may respond to but a single inquiry pertain-
ing merely to one issue essential to the general verdict.
Childress v. Lake Erie & W. R. Co., 182 Ind. 251, 105 N.E.467, 470.
Verdict by Lot
This type of verdict was formerly held to be
legitimate, 1 Keble 811; but such verdicts are
now held to be illegal. See Barnard v. State, 221
S.W. 293, 294, 87 Tex.Cr.R. 365; Chance Verdict,
supra.
Verdict Contrary to Law
A verdict which law does not authorize jury to
render on evidence because conclusion drawn is
not justified thereby. Gruhn v. J. H. Taylor
Const. Co., 180 Misc. 956, 40 N.Y.S.2d 765, 770.
One which is contrary to the principles of law as
applied to the facts which the jury were called
upon to try and contrary to the principles of law
which should govern the cause. Piepho v. Gesse,
106 Ind.App. 450, 18 N.E.2d 468, 471.
Verdict of Guilty But Insane
A special verdict which amounts to an acquittal
of the person tried. Rex v. Taylor, [1915] 2 K.
B. 709, 712.
Verdict of No Cause of Action
A verdict for defendant. Feller v. Mulliner, 2
Johns. 181.
Verdict of Not Guilty
Simply a verdict of not proven in the particular
case tried; it is not a verdict of innocence, and
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VERDICT
hence is not conclusive against the state in favor
of any other person than the defendant who was
actually acquitted. Woody v. State, 10 Okl.Cr. 322,
136 P. 430, 432, 49 L.R.A.,N.S., 479.
Verdict Subject to Opinion of Court
A verdict returned by the jury, the entry of
judgment upon which is subject to the determina-
tion of points of law reserved by the court upon
the trial.
VERDICT, ESTOPPEL BY. The term is some-
times applied to the estoppel arising from a for-
mer adjudication of the same fact or issue between
the same parties or their privies. Chicago Theo-
logical Seminary v. People, 189 Ill. 439, 59 N.E.
977; Swank v. Railway Co., 61 Minn. 423, 63 N.W.
1088. But this use is not correct, as it is not the
verdict which creates an estoppel, but the judg-
ment, and it is immaterial whether a jury par-
ticipated in the trial or not. The doctrine of es-
toppel by verdict is but another branch of the doc-
trine of res judicata. Chicago Title & Trust Co.
v. National Storage Co., 260 Ill. 485, 103 N.E. 227,
231; Citizen's Loan & Trust Co. of Washington,
Ind. v. Sanders, 99 Ind.App. 77, 187 N.E. 396, 398.
See, however, Coffman v. Hope Natural Gas Co.,
74 W.Va. 57, 81 S.E. 575. See, also, Judgment, Es-
toppel By.
A former adjudication is conclusive in subsequent pro-
ceeding between same parties but on a different cause of
action as to facts actually decided. Kimpton v. Spellman,
351 Mo. 674, 173 S.W.2d 886, 891; Holtz v. Beighley, 211
Minn. 153, 300 N.W. 445, 446.
It arises when material fact has been determined in
former suit between same parties or those in privity with
them, in which such fact was also material. Little v. Blue
Goose Motor Coach Co., 346 Ill. 266, 178 N.E. 496, 497;
Citizen's Loan & Trust Co. of Washington, Ind. v. Sanders,
187 N.E. 396, 99 Ind.App. 77. It is limited to matters ac-
tually or by necessary implication found and determined.
In prior action. Missouri District Telegraph Co. v. South-
western Bell Telephone Co., 338 Mo. 692, 93 S.W.2d 19, 22.
It operates only as to issues actually litigated. Gustafson
V. Gustafson, 178 Minn. 1, 226 N.W. 412, 413.
It is not a decision on the law that concludes the parties,
but the determination of a controlling fact or matter in
issue. People v. Louisville & N. R. Co., 350 Ill. 274, 183
N.E. 233, 235.
The rules of "estoppel by verdict" apply to some fact or
issue necessarily determined by the previous litigation.
Skolnik v. Petella, 376 Ill. 500, 34 N.E.2d 825, 827.
To operate as "?,stoppel by verdict," it is necessary that
there shall have been a finding of a specific fact in former
judgment or record that was material and controlling in
case, or was necessarily involved in verdict or judgment,
and also material and controlling in pending case. Brown
v. Brown, 286 Ill.App. 471, 3 N.E.2d 945, 946.
Where controlling fact or question material to determi-
nation of both causes is decided in a former suit and is
again in issue in a subsequent suit between same parties,
first adjudication will, if properly presented, be conclusive.
Brown v. Brown, 286 Ill.App. 471, 3 N.E.2d 945, 946; Mc-
Kee v. Producers' & Refiners' Corporation, 170 Okl. 559, 41
P.2d 466, 469.
VEREBOT. Sax. In old records. A packet-boat
or transport vessel. Cowell.
VEREDICTUM. L. Lat. In old English law. A
verdict; a declaration of the truth of a matter in
issue, submitted to a jury for trial..
VEREDICTUM, QUASI DICTUM VERITATIS;
UT JUDICIUM QUASI JURIS DICTUM. Co. Litt.
226. The verdict is, as it were, the dictum [say-
ing] of truth; as the judgment is the dictum of
law.
VERGE, or VIRGE. In English law. The com-
pass of the royal court, which bounds the juris-
diction of the lord steward of the household; it
seems to have been twelve miles about. Britt.
68. An uncertain quantity of land from fifteen to
thirty acres. 28 Edw. I. Also a stick, or rod,
whereby one is admitted tenant to a copyhold es-
tate. Old Nat. Brev. 17.
VERGELT. In Saxon law. A mulct or fine for
a crime. See Weregild.
VERGENS AD INOPIAM, L. Lat. In Scotch
law. Verging towards poverty; in declining cir-
cumstances. 2 Karnes, Eq. 8.
VERGERS. In English law. Officers who carry
white wands before the justices of either bench.
Cowell. Mentioned in Fleta, as officers of the
king's court, who oppressed the people by demand-
ing exorbitant fees. Fleta, lib. 2, c. 38.
VERIFICATION. Confirmation of correctness,
truth, or authenticity by affidavit, oath, or deposi-
tion. McNamara v. Powell, Sup., 52 N.Y.S.2d 515,
527.
Pleading
A certain formula with which all pleadings con-
taining new affirmative matter must conclude, be-
ing in itself an averment that the party pleading
is ready to establish the truth of what he has set
forth.
The usual form of verification of a plea containing mat-
ter of fact is, "And this he is ready to verify," etc. See 3Bla.Comm. 309.
Practice
The examination of a writing for the purpose of
ascertaining its truth. A certificate or affidavit
that it is true.
"Verification" is not identical with "authentication."
A notary may verify a mortgagee's written statement of
the actual amount of his claim, but need not authenticate
the act by his seal. Ashley v. Wright, 19 Ohio St. 291.
Confirmation of the correctness, truth, or au-
thenticity of a pleading, account, or other paper,
by an affidavit, oath, or deposition. Herbert v.
Roxana Petroleum Corporation, D.C.I11., 12 F.2d
81, 83; McDonald v. Rosengarten, 134 Ill. 126, 25
N.E. 429; Summerfield v. Phoenix Assur. Co., C.C.
Va., 65 F. 296; Patterson v. Brooklyn, 6 App.Div.
127, 40 N.Y.S. 581.
VERIFY. To confirm or substantiate by oath.
S. B. McMaster, Inc., v. Chevrolet Motor Co., D.C.
S.C., 3 F.2d 469, 471; Francesconi v. Independent
School Dist. of Wall Lake, 204 Iowa 307, 214 N.W.
882, 885; Marshall v. State, 116 Neb. 45, 215 N.W.
564, 566. Particularly used of making formal
oath to accounts, petitions, pleadings, and other
papers.
The word "verified," when used in a statute, ordinarily
imports a verity attested by the sanctity of an oath.
Bristol v. Buck, 201 App.Div. 100, 194 N.Y.S. 53, 55. It is
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VESSEL
frequently used interchangeably with "sworn." Frances-
coni v. Independent School Dist. of Wall Lake, 204 Iowa,
307, 214 N.W. 882, 885.
To prove to be true; to establish the truth of;
to confirm; to confirm the truth or truthfulness
of; to check or test the accuracy or exactness of;
to confirm or establish the authenticity of; to au-
thenticate; to prove; to maintain; to affirm; to
support; second; back as a friend. MacNeill v.
Maddox, 194 Ga. 802, 22 S.E.2d 653, 654.
The word "verify" sometimes means to confirm and
substantiate by oath, and sometimes by argument. When
used in legal proceedings it is generally employed in the
former sense. De Witt v. Hosmer, 3 How.Prac., N.Y., 284.
VERIFIED COPY. A copy, if successive witness-
es trace the original into the hands of a witness
who made or compared the copy. Nu Car Carri-
ers v. Traynor, 75 U.S.App.D.C. 174, 125 F.2d 47,
48.
VERIFIED NAMES. Names verified by county
clerk in accordance with his duty to check names
of signers against official registration lists. Allan
v. Rasmussen, 101 Utah 33, 117 P.2d 287, 289.
VERILY. In very truth; beyond doubt or ques-
tion; in fact; certainly; truly; confidently; real-
ly. Gregg v. Sigurdson, 67 Mont. 272, 215 P. 662.
VERITAS, A QUOCUNQU g  DICITUR, A DEO
EST. 4 Inst. 153. Truth, by whomsoever pro-
nounced, is from God.
VERITAS DEMONSTRATIONIS TOLLIT ER-
ROREM NOMINIS. The truth of the description
removes an error in the name. 1 Ld.Raym. 303.
VERITAS HABENDA EST IN JURATORE; JUS-
TITIA ET JUDICIUM IN JUDICE. Truth is the
desideratum in a juror; justice and judgment in
a judge. Bract. fol. 185b.
VERITAS NHIIL VERETUR NISI ABSCONDI.
Truth fears nothing but to be hid. 9 Coke, 20b.
VERITAS NIMIUM ALTERCANDO AMITTI-
TUR. Truth is lost by excessive altercation.
Hob. 344.
VERITAS NOMINIS TOLLIT ERROREM DEM-
ONSTRATIONIS. The truth of the name takes
away the error of description. Bacon, Max. Reg.
25; Broom, Max. 637, 641; 8 Taunt. 313; 2 Jones,
Eq. (N.C.) 72.
VERITAS, QUIE MINIME DEFENSATUR OP-
PRIMITUR; ET QUI NON IMPROBAT, APPRO.
BAT. 3 Inst. 27. Truth which is not sufficiently
defended is overpowered; and he who does not
disapprove, approves.
VERITATEM QUI NON LIBERE PRONUNCIAT
PRODITOR EST VERITATIS. 4 Inst. Epil. He
who does not freely speak the truth is a betrayer
of truth.
VERITY. Truth; truthfulness; conformity to
fact. The records of a court "import uncontroll-
able verity." 1 Black, Judgm. § 276.
VERNA. Lat. In the civil law. A slave born in
his master's house.
VERSARI. Lat. In the civil law. To be employ-
ed; to be conversant. Versari male in tutela, to
misconduct one's self in a guardianship. Calvin.
VERSUS. Lat. Against. In the title of a cause,
the name of the plaintiff is put first, followed by
the word "versus," then the defendant's name.
Thus, "Fletcher versus Peck," or "Fletcher against
Peck." The word is commonly abbreviated "vs."
or "v." Vs. and versus have become ingraf ted
upon the English language; their meaning is as
well understood and their use quite as appropri-
ate as the word against could be. Smith v. But-
ler, 25 N.H. 523.
VERT. Everything bearing green leaves in a for-
est. Manwood, For. Law 146.
Also that power which a man has, by royal
grant, to cut green wood in a forest.
In heraldry, green color, called "venus" in the
arms of princes, and "emerald" in those of peers,
and expressed in engravings by lines in bend.
Wharton.
VERTICAL PRICE—FIXING CONTRACT. A con-
tract between producers and wholesalers or dis-
tributors, between producers and retailers, or be-
tween wholesalers or distributors and retailers,
and not between producers themselves, between
wholesalers themselves, or between retailers them-
selves as to sale or retail prices. Pazen v. Silver
Rod Stores, 130 N.J.Eq. 407, 22 A.2d 237, 239; Sea-
gram Distillers Corporation v. Old Dearborn Dis-
tributing Co., 363 Ill. 610, 2 N.E.2d 940, 942.
VERTIGO. A term quite commonly used in the
sense of dizziness, giddiness—a condition in which
the individual or the objects around him appear
to be whirling about. Post v. Grand Lodge, A.
0. U. W., 211 Iowa 786, 232 N.W. 140, 144.
VERUS. Lat. True; truthful; genuine; actual;
real; just.
VERY. As an adjective means real, actual, or
true, but as an adverb means in a high degree, ex-
ceedingly, extremely; to no small extent. Benoist
v. Driveaway Co. of Missouri, Mo.App., 122 S.W.
2d 86, 90; Shriver v. Union Stockyards Nat. Bank,
117 Kan. 638, 232 P. 1062, 1066.
VERY HIGH DEGREE OF CARE. That degree
of care that would be used by a very cautious,
prudent, and competent person under like or sim-
ilar circumstances. Wichita Valley Ry. Co. v. Wil-
liams, Tex.Civ.App., 3 S.W.2d 141, 142.
VERY LORD AND VERY TENANT. They that
are immediate lord and tenant one to another.
Cowell.
VESSEL. A ship, brig, sloop, or other craft used
in navigation. The word in its broadest sense is
more comprehensive than "ship."
Any structure which is made to float upon the
water, for purposes of commerce or war, whether
impelled by wind, steam, or oars. Chaffe v. Lude-
ling, 27 La.Ann. 607. Any structure, especially a
hollow one, made to float upon the water for pur-
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VESSEL
poses of navigation; a craft for navigation of the
water, often, specifically, one larger than a com-
mon row boat; as, a war vessel; a passenger
vessel. City of Tampa v. Tampa Shipbuilding &
Engineering Co., 136 Fla. 216, 186 So. 411, 412;
Massman Const. Co. v. Bassett, D.C.Mo., 30 F.
Supp. 813, 815.
Every description of water-craft or other artificial con-
trivances used, or capable of being used, as a means of
transportation on water. Rev.St.U.S. § 3 (1 U.S.C.A. § 3);
Maryland Casualty Co. v. Lawson, C.C.A.Fla., 94 F.2d 190,
192. Under this definition, the term has been held to in-
clude a large barge, without motive power of its own.
Norton v. Warner Co., Pa., 64 S.Ct. 747, 751, 321 U.S. 565,
88 L.Ed. 931; and likewise a house boat, not permanently
attached to the shore, though without motive power, The
Ark, D.C.Fla., 17 F.2d 446, 447; but not a wharfboat,
secured to the shore by cables and used as an office, ware-
house, and wharf, and having water and electric light con-
nections and telephone system, Evansville & Bowling Green
Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 46 S.Ct.
379, 380, 70 L.Ed. 805; nor a dry dock used for the repair
of vessels, though capable of being floated and towed from
place to place; Berton v. Tietjen & Lang Dry Dock Co.,
D.C.N.J., 219 F. 763, 771.
As used in various other statutes, the word "vessel" has
been held applicable to a ferryboat, Port Huron & Sarnia
Ferry Co. v. Lawson, D.C.Mich., 292 F. 216, 219; a pile
driver scow, George Leary Const. Co. v. Matson, C.C.A.Va.,
272 F. 461, 462; a derrick boat, carrying a derrick used for
loading logs from the river bank upon boats, Patton-Tully
Transp. Co. v. Turner, C.C.A.Tenn., 269 F. 334, 336; a
hydro-aeroplane while moving on the water, Reinhardt v.
Newport Flying Service Corporation, 232 N.Y. 115, 133
N.E. 37, 372, 18 A.L.R. 1324; and even to a log raft. The
Libby Maine, D.C.Wash., 3 F.2d 79, 80. The term is broad
enough to include a vessel's tackle, apparel, furniture,
chronometer and appurtenances. The Frolic, D.C.R.I., 148
F. 921.
The word has also been held to include a new ship as
soon as its hull has been launched, The Pinthis, C.C.A.
N.J., 286 F. 122; and any structure which is so far com-
pleted as to be capable of being used as a means of trans-
portation on water, R. R. Ricou & Sons Co. v. Fairbanks,
Morse & Co., C.C.A.Fla., 11 F.2d 103, 104; but not an old
hull built of timber taken from an old dry dock. The
Dredge A, D.C.N.C., 217 F. 617, 630. Contra, Moores v.
Underwriters, C.C.Tenn., 14 F. 236.
The words "boat," "craft," and "water craft" are
usually applied to small vessels, while larger vessels, es-
pecially in the case of large iron steamships, are usually
referred to by the term "steamer," or "steamship," or
"vessel." The Saxon, D.C.S.C., 269 F. 639, 641.
A utensil, such as a bottle, designed to hold liq-
uids, etc. Old Tavern Farm v. Fickett, 125 Me.
123, 131 A. 305, 306.
Foreign Vessel
A vessel owned by residents in, or sailing under
the flag of, a foreign nation. "Foreign vessel,"
under the embargo act of January, 1808, means a
vessel under the flag of a foreign power, and not a
vessel in which foreigners domiciled in the United
States have an interest. The Sally, 1 Gall. 58, F.
Cas.No.12,257.
Public Vessel
One owned and used by a nation or government
for its public service, whether in its navy, its rev-
enue service, or otherwise.
VEST. To give an immediate, fixed right of pres-
ent or future enjoyment. Baldwin v. Fleck, Tex.
Civ.App., 168 S.W.2d 904, 909. To accrue to; to be
fixed; to take effect.
To clothe with possession; to deliver full pos-
session of land or of an estate; to give seisin; to
enfeoff. Spelman.
The normal sense of the word is to indicate a present
and immediate interest, as distinguished from one that is
contingent. In re Stocker's Estate, 260 Pa. 385, 103 A.
885, 886; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565,
571.
Under Executive Order empowering Alien Property
Custodian to "vest" any property of enemy national in the
process of administration, the term is equivalent to "seize"
and gives the Custodian the right to the immediate posses-
sion of the property for the benefit of the United States.
Executive Order March 11, 1942, No. 9095, as amended, 50
U.S.C.A.Appendix § 6; Trading With the Enemy Act § 5
(b), as amended, 50 U.S.C.A.Appendix § 5(b). In re
Oneida Nat. Bank & Trust Co. of Utica, 53 N.Y.S.2d 416,
419, 183 Misc. 374.
VESTA. The crop on the ground. Cowell.
VESTED. Fixed; accrued; settled; absolute.
Orthwein v. Germania Life Ins. Co. of City of New
York, 261 Mo. 650, 170 S.W. 885, 888. Having the
character or giving the rights of absolute owner-
ship; not contingent; not subject to be defeated
by a condition precedent. Scott v. West, 63 Wis.
529, 24 N.W. 161; McGillis v. McGillis, 11 App.
Div. 359, 42 N.Y.S. 924; Smith v. Proskey, 39 Misc.
385, 79 N.Y.S. 851.
VESTED DEVISE, See Devise.
VESTED ESTATE. An interest clothed with a
present, legal, and existing right of alienation.
Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904,
908; Chaison v. Chaison, Tex.Civ.App., 154 S.W.2d
961, 964. Any estate, whether in possession or not,
which is not subject to any condition precedent
and unperformed. The interest may be either a
present and immediate interest, or it may be a
future but uncontingent, and therefore transmissi-
ble, interest. Brown. See Tayloe v. Gould, 10
Barb. (N.Y.) 388; estate by which present interest
is invariably fixed to remain to determinate per-
son on determination of preceding freehold estate.
Story v. First Nat. Bank & Trust Co. in Orlando,
115 Fla. 436, 156 So. 101. An estate, when the per-
son or the class which takes the remainder is in
existence or is capable of being ascertained when
the prior estate vests. Commissioner of Internal
Revenue v. Kellogg, C.C.A.3, 119 F.2d 54, 57; or
when there is an immediate right of present en-
joyment or a present right of future enjoyment.
In re Kelly's Estate, 167 Misc. 751, 4 N.Y.S.2d 675,
678.
A vested estate, whether present or future, may be abso-
lutely or defeasibly vested. L'Etourneau v. Henquenet,
89 Mich. 428, 50 N.W. 1077, 28 Am.St.Rep. 310. If a pres-
ent right exists to future possession, the estate is "vest-
ed," even though actual possession may be defeated by
a future event. Wheaton Coal. Co. v. Harris, 288 Pa. 294,
135 A. 637, 638. See, also, Vest.
VESTED GIFT. A gift if it is immediate, notwith-
standing that its enjoyment may be postponed.
Bankers Trust Co. v. Garver, 222 Iowa 196, 268 N.
W. 568, 571. A future gift when the right to re-
ceive it is not subject to a condition precedent.
First & American Nat. Bank of Duluth v. Higgins,
208 Minn. 295, 293 N.W. 585, 594. Where future
gift is postponed to let in some other interest.
Barrett v. Barrett, 134 N.J.Eq. 138, 34 A.2d 579,
590.
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VESTRY
VESTED IN INTEREST. A legal term applied
to a present fixed right of future enjoyment; as
reversions, vested remainders, such executory de-
vises, future uses, conditional limitations, and oth-
er future interests as are not referred to, or made
to depend on, a period or event that is uncertain.
Wharton. See Smith v. West, 103 Ill. 337; Hawley
v. James, 5 Paige (N.Y.) 466; Gates v. Seibert, 157
Mo. 254, 57 S.W. 1065, 80 Am.St.Rep. 625.
VESTED IN POSSESSION. A legal term applied
to a right of present enjoyment actually existing.
See Vest.
VESTED INTEREST. A present right or title to
a thing, which carries with it an existing right of
alienation, even though the right to possession or
enjoyment may be postponed to some uncertain
time in the future, as distinguished from a future
right, which may never materialize or ripen into
title, and it matters not how long or for what
length of time the future possession or right of
enjoyment may be postponed, if the present right
exists to alienate and pass title. Fugazzi v. Fu-
gazzi's Committee, 275 Ky. 62, 120 S.W.2d 779, 781.
A future interest not dependent on an uncertain
period or event, or a fixed present right of future
enjoyment. In re Whiting, D.C.N.C., 3 F.2d 440,
441; McMannis v. Peerless Casualty Co., 114 Me.
98, 95 A. 510. When a person has a right to imme-
diate possession on determination of preceding or
particular estate. In re Clark's Estate, Orph., 13
N.J.Misc. 393, 178 A. 574, 575. One in which there
is a present fixed right, either of present enjoy-
ment or of future enjoyment. Painter v. Hersch-
berger, 340 Mo. 347, 100 S.W.2d 532, 535.
It is not the uncertainty of enjoyment in the future, but
the uncertainty of the right of enjoyment, which makes
the difference between a "vested" and a "contingent" in-
terest. Mahoney v. Mahoney, 98 Conn. 525, 120 A. 342, 345;
Grant v. Grant, 187 Ga. 807, 2 S.E.2d 421, 427. A future
interest is vested when there is a person in being who
would have a right, defeasible or indefeasible, to the im-
mediate possession of the property, upon the ceasing of
the intermediate or precedent interest. Civil Code Cal. §
694. See Allison v. Allison, 101 Va. 537, 44 S.E. 904, 63
L.R.A. 920; Hawkins v. Bohling, 168 Ill. 214, 48 N.E. 94;
Stewart v. Harriman, 56 N.H. 25, 22 Am.Rep. 408; Bunt-
ing v. Speck, 41 Kan. 424, 21 P. 288, 3 L.R.A. 690.
VESTED LEGACY. A legacy given in such terms
that there is a fixed, indefeasible right to its pay-
ment. In re Central Union Trust Co. of New York,
183 N.Y.S. 671, 673, 193 App.Div. 292. A legacy
payable at a future time, certain to arrive, and
not subject to conditions precedent, is vested,
where there is a person in esse at the testator's
death capable of taking when the time arrives,
though his interest may be altogether defeated by
his own death. In re Youngblood's Estate, 117 Pa.
Super. 550, 178 A. 517, 518. A legacy is said to be
vested when the words of the testator making the
bequest convey a transmissible interest, whether
present or future, to the legatee in the legacy.
Thus a legacy to one to be paid when he attains
the age of twenty-one years is a vested legacy, be-
cause it is given unconditionally and absolutely,
and therefore vests an immediate interest in the
legatee, of which the enjoyment only is deferred
or postponed. Brown. See Magoffin v. Patton, 4
Rawle (Pa.) 113; Talmadge v. Seaman, 85 Hun
242, 32 N.Y.S. 906; Rubencane v. McKee, 6 Del.Ch.
40, 6 A. 639.
VESTED REMAINDER. See Remainder.
VESTED RIGHTS. In constitutional law. Rights
which have so completely and definitely accrued
to or settled in a person that they are not subject
to be defeated or canceled by the act of any other
private person, and which it is right and equitable
that the government should recognize and protect,
as being lawful in themselves, and settled accord-
ing to the then current rules of law, and of which
the individual could not be deprived arbitrarily
without injustice, or of which he could not justly
be deprived otherwise than by the established
methods of procedure and for the public welfare.
Cassard v. Tracy, 52 La.Ann. 835, 27 So. 368, 49
L.R.A. 272; Stimson Land Co. v. Rawson, C.C.
Wash., 62 F. 429; Parker v. Schrimsher, Tex.Civ.
App., 172 S.W. 165, 168. Which cannot be inter-
fered with by retrospective laws, are interests
which it is proper for state to recognize and pro-
tect and of which individual cannot be deprived
arbitrarily without injustice. American States
Water Service Co. of California v. Johnson, 31
Cal.App.2d 606, 88 P.2d 770, 774. Immediate or
fixed right to present or future enjoyment and
one that does not depend on an event that is un-
certain. Dunham Lumber Co. v. Gresz, 71 N.D.
491, 2 N.W.2d 175, 179, 141 A.L.R. 60; Massa v.
Nastri, 125 Conn. 144, 3 A.2d 839, 840, 120 A.L.R.
939; Wylie v. City Commission of Grand Rapids,
293 Mich. 571, 292 N.W. 668, 674. A right com-
plete and consummated, and of such character
that it cannot be divested without the consent of
the person to whom it belongs, and fixed or estab-
lished, and no longer open to controversy. State
ex rel. Milligan v. Ritter's Estate, Ind.App., 46
N.E.2d 736, 743.
VESTIGIAL WORDS. Those contained in a stat-
ute which by reason of a succession of statutes on
the same subject-matter, amending or modifying
previous provisions of the same, are rendered use-
less or meaningless by such amendments. They
should not be permitted to defeat the fair mean-
ing of the statute. Saltonstall v. Birtwell, 17 S.Ct.
19, 164 U.S. 70, 41 L.Ed. 348.
VESTIGIUM. Lat. In the law of evidence, a
vestige, mark, or sign; a trace, track, or impres-
sion left by a physical object. Fleta, 1. 1, c. 25,
§ 6.
VESTING ORDER. In English law. An order
which may be granted by the chancery division of
the high court of justice, (and formerly by chan-
cery,) passing the legal estate in lieu of a con-
veyance. Commissioners also, under modern stat-
utes, have similar powers. St. 15 & 16 Vict. c.
55; Wharton.
VESTRY. In ecclesiastical law. The place in a
church where the priest's vestures are deposited.
Also an assembly of the minister, church-wardens,
and parishioners, usually held in the vestry of the
church, or in a building called a "vestry-hall," to
act upon business of the church. Mozley & White-
ley.
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VESTRY-CESS
VESTRY-CESS. A rate levied in Ireland for par-
ochial purposes, abolished by St. 27 Vict. c. 17.
VESTRY-CLERK. An officer appointed to attend
vestries, and take an account of their proceed-
ings, etc.
VESTRY-MEN. A select number of parishioners
elected in large and populous parishes to take care
of the concerns of the parish; so called because
they used ordinarily to meet in the vestry of the
church. Cowell.
VESTURA. A crop of grass or corn. Also a
garment; metaphorically applied to a possession
or seisin.
VESTURA TERRIE. In old English law. The
vesture of the land; that is, the corn, grass, Un-
derwood, sweepage, and the like. Co. Litt. 4b.
See Simpson v. Coe, 4 N.H. 301.
VESTURE. In old English law. Profit of land.
"How much the vesture of an acre is worth."
Cowell.
VESTURE OF LAND. A phrase including all
things, trees excepted, which grow upon the sur-
face of the land, and clothe it externally. Ham.
N.P. 151.
VETERA STATUTA. Lat. Ancient statutes.
The English statutes from Magna Charta td the
end of the reign of Edward II. are so called;
those from the beginning of the reign of Edward
III. being contradistinguished by the appellation
of "Nova Statuta." 2 Reeve, Eng. Law, 85.
VETERAN. Within Civil Service Laws giving
preference to veterans, any honorably discharged
soldier, sailor, marine, nurse, or army field clerk,
who has served in military service of the United.
States in any war. Ryan v. Civil Service Com-
mission of New Jersey, 115 N.J.L. 316, 179 A. 848,
849.
VETERINARIAN. One who practices the art of
treating diseases and injuries of domestic animals,
surgically or medically. Tucker v. Williamson,
D.C.Ohio, 229 F. 201, 210.
VETITUM NAMIUM. L. Lat. Where the bailiff
of a lord distrains beasts or goods of another, and
the lord forbids the bailiff to deliver them when
the sheriff comes to make replevin, the owner of
the cattle may demand satisfaction in placitum de
vetito namio. 2 Inst. 140; 2 Bl.Comm. 148.
VETO (Lat. I forbid). The refusal of assent by
the executive officer whose assent is necessary to
perfect a law which has been passed by the legis-
lative body, and the message which is usually sent
to such body by the executive, stating such refusal
and the reasons therefor. It is either absolute or
qualified, according as the effect of its exercise
is either to destroy the bill finally, or to prevent
its becoming law unless again passed by a stated
proportion of votes or with other formalities. Or
the veto may be merely suspensive. See People
v. Board of Councilmen (Super. Buff.) 20 N.Y.
Supp. 51,
A statement by the Governor that he objects to certain
items of an appropriation bill, without stating his reasons
therefor, is insufficient to constitute an effective veto of
such items. State v. French, 133 Kan. 579, 300 P. 1082,
1083. And where Governor returned resolution to the
house in which it originated for purpose of correction of
typographical error only, such communication was also
held not to constitute a "veto". In re Block 1, Donly
Heights Addition, Oklahoma City, 194 Okl. 221, 149 P.2d
265, 267.
Pocket Veto
Non-approval of a legislative act by the presi-
dent or state governor, with the result that it fails
to become a law, not by a written disapproval,
(a veto in the ordinary form,) but by remaining
silent until the adjournment of the legislative
body, when that adjournment takes place before
the expiration of the period allowed by the con-
stitution for the examination of the bill by the
executive.
VETO POWER, Executive's power conditionally
to prevent acts passed by Legislature which have
not yet become law. Fitzsimmons v. Leon, C.C.A.
Puerto Rico, 141 F.2d 886, 888.
VETUS JUS. Lat. The old law. A term used in
the civil law, sometimes to designate the law of
the Twelve Tables, and sometimes merely a law
which was in force previous to the passage of a
subsequent law. Calvin.
VEX. To harass, disquiet, annoy; as by repeated
litigation upon the same facts.
VEXARI. Lat. To be harassed, vexed, or an-
noyed; to be prosecuted; as in the maxim, Nemo
debet bis vexari pro una et eadem causa, no one
should be twice prosecuted for one and the same
cause.
VEXATA QUAESTIO. Lat. A vexed question; a
question often agitated or discussed, but not de-
termined or settled; a question or point which
has been differently determined, and so left doubt-
ful. 7 Coke, 45b; 3 Burrows, 1547.
VEXATION. The injury or damage which is suf-
fered in consequence of the tricks of another.
VEXATIOUS. Without reasonable or probable
cause or excuse. Gardner v. Queen Ins. Co. of
America, 232 Mo.App. 1101, 115 S.W.2d 4, 7.
VEXATIOUS ACTIONS ACT. An act of parlia-
ment of 1896, authorizing the Itigh Court to make
an order, on the application of the attorney-gen-
eral, that a person shown to be habitually and
vexatiously litigious, without reasonable ground,
shall not institute legal proceedings in that or any
other court, without leave of the High Court judge
thereof, upon satisfactory proof that such legal
proceedings are not an abuse of the process of
the court and that there is a prima facie ground
therefor. The order when made is published in
the Gazette. See 76 L.T. 351; [1913] W.N. 274
(Div.Ct.).
VEXATIOUS DELAY OR REFUSAL TO PAY.
Under statute permitting recovery of damages for
"vexatious 'delay" of an insurer in payment of a
policy, no penalty can be inflicted unless it ap-
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VICARIUS
pears to a reasonable and prudent man before the
trial that refusal was willful and without reason-
able cause, and penalty will not be inflicted be-
cause of adverse outcome of trial. New York Life
Ins. Co. v. Calhoun, C.C.A.Mo., 114 F.2d 526, 537.
An insurer is allowed an honest difference of opinion
regarding its liability under a policy and so long as it acts
in good faith, may contest either an issue of fact or an
issue of law. Camp v. John Hancock Mut. Life Ins. Co. of
Boston, Mass., Mo.App., 165 S.W.2d 277, 283.
VEXATIOUS PROCEEDING. Proceeding insti-
tuted maliciously and without probable cause.
Paramount Pictures v. Blumenthal, 256 App.Div.
756, 11 N.Y.S.2d 768, 772. Kind of malicious pros-
ecution differing principally because based on
civil action. Calvo v. Bartolotta, 112 Conn. 396,
152 A. 311. When the party bringing proceeding
is not acting bona fide, and merely wishes to an-
noy or embarrass his opponent, or when it is
not calculated to lead to any practical result.
Such a proceeding is often described as "frivolous
and vexatious," and the court may stay it on that
ground. Sweet.
VEXATIOUS REFUSAL TO PAY. See Vexa-
tious Delay.
VEXED QUESTION. A question or point of law
often discussed or agitated, but not determined or
settled.
VI AUT CLAM. Lat. In the civil law. By force
or covertly. Dig. 43, 24.
VI BONORUM RAPTORUM. Lat. In the civil
law. Of goods taken away by force. The name of
an action given t)y the prEetor as a remedy for the
violent taking of another's property. Inst. 4, 2;
Dig. 47, 8.
VI ET ARMIS. Lat. With force and arms. See
Trespass.
VIA. Lat. Way, road.
In the civil law. Way; a road; a right of way.
The right of walking, riding, and driving over an-
other's land. Inst. 2, 3, pr. A species of rural
servitude, which included iter (a footpath) and
actus, (a driftway.)
In old English law. A way; a public road; a
foot, horse, and cart way. Co. Litt. 56a.
VIA ANTIQUA VIA EST TUTA. The old way is
the safe way. Manning v. Manning's Ex'rs, 1
Johns. Ch. (N.Y.) 527, 530.
VIA ORDINARIA; VIA EXECUTIVA. In the
law of Louisiana, the former phrase means in the
ordinary way or by ordinary process, the latter
means by executory process or in an executory
proceeding. A proceeding in a civil action is "or-
dinary" when a citation takes place and all the
delays and forms of law are observed; "execu-
tory" when seizure is obtained against the proper-
ty of the debtor, without previous citation, in vir-
tue of an act or title importing confession of judg-
ment, or in other cases provided by law. Code
Prac. La. art. 98.
VIA PUBLICA. In the civil law. A public way
or road, the land itself belonging to the public.
Dig. 43, 8, 2, 21.
VIA REGIA. In English law. The king's high-
way for all men. Co.Litt. 56a. The highway or
common road, called "the king's" highway, be-
cause authorized by him and under his protection,
Cowell. •
VIA TRITA EST TUTISSIMA. The trodden path
is the safest. Broom, Max. 134; 10 Coke, 142.
VIABILITY. Capability of living. A term used to
denote the power a new-born child possesses of
continuing its independent existence.
VIABLE. Livable, having the appearance of be-
ing able to live. Wehrman v. Farmers' & Mer-
chants' Sa y . Bank of Durant, 221 Iowa 249, 259
N.W. 564. Capable of life. This term is applied
to a newly-born infant, and especially to one pre-
maturely born, which is not only born alive, but
in such a state of organic development as to make
possible the continuance of its life.
VL zE SERVITUS. Lat. A right of way over an-
other's land.
VIAGERE RENTE. In French law. A rent-
charge or annuity payable for the life of the
annuitant.
VIANDER. In old English law. A returning of-
ficer. 7 Mod. 13.
VIATOR. Lat. In Roman law. A summoner or
apparitor; an officer who attended on the tribunes
and fediles.
VICAR. One who performs the functions of an-
other; a substitute. Also the incumbent of an
appropriated or impropriated ecclesiastical bene-
fice, as distinguished from the incumbent of a
non-appropriated benefice, who is called a "rector."
Wharton. See Pinder v. Barr, 4 El. & Bl. 115.
VICAR GENERAL. An ecclesiastical officer who
assists the archbishop in the discharge of his of-
fice.
VICARAGE. In English ecclesiastical law. The
living or benefice of a vicar, as a parsonage is of
a parson. 1 Bl.Comm. 387, 388.
VICARIAL TITHES. Petty or small tithes pay-
able to the vicar. 2 Steph.Comm. 681.
VICARIO, etc. An ancient writ for a spiritual
person imprisoned, upon forfeiture of a recog-
nizance, etc. Reg. Orig. 147.
VICARIUS APOSTOLICUS. An officer through
whom the Pope exercises authority in parts re-
mote, and who is sometimes sent with episcopal
functions into provinces where there is no bishop
resident or there has been a long vacancy in the
see, or into infidel or heretical countries. 2 Phill.
Int.L. 529.
VICARIUS NON HABET VICARIUM. A deputy
has not [cannot have] a deputy. A delegated
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power cannot be again delegated. Broom, Max.
839.
VICE. A fault, defect, or imperfection.
As applied to an animal a bad habit or failing.
F. Giovannozzi & Sons v. Luciani, Del.Super., 2
Terry 211, 18 A.2d 435, 437.
In the civil law, redhibitory vices are such faults
a imperfections in the subject-matter of a sale
as will give the purchaser the right to return the
article and demand back the price.
VICE. Lat. In the place or stead. Vice mea, in
my place.
Vice-admiral. An officer in the navy ranking be-
low an admiral.
Vice-admiral of the coast. A county officer in.
England appointed by the admiral "to be answer-
able to the high admiral for all the coasts of the
sea, when need and occasion shall be." He also
had power to arrest ships, when found within a
certain district, for the use of the king. His office
was judicial as well as ministerial. The appoint-
ment to the office is still made for a few countries
of England.
Vice-admiralty courts. In English law. Courts
established in the king's possessions beyond the
seas, with jurisdiction over maritime causes, in-
cluding those relating to prize. 3 Steph.Comm.
435; 3 Bl.Comm. 69.
Vice-chamberlain. A great officer under the lord
chamberlain, who, in the absence of the lord cham-
berlain, has the control and command of the of-
ficers appertaining to that part of the royal house-
hold which is called the "chamber." Cowell.
Vice-chancellor. See Chancellor.
Vice-comes. A title formerly bestowed on the
sheriff of a county, when he was regarded as the
deputy of the count or earl. Co.Litt. 168.
Vice-comitissa. In old English law. A viscount-
ess. Spelman.
Vice-commercial agent. In the consular service
of the United States, this was formerly the title
of a consular officer who was substituted tempo-
rarily to fill the place of a commercial agent when
the latter was absent or relieved from duty. See
Commercial Agent.
Vice-constable of England. An ancient officer in
the time of Edward IV.
Vice-consul. In the consular service of the Unit-
ed States a consular officer who is substituted tem-
porarily to fill the place of a consul who is ab-
sent or relieved from duty. 22 U.S.C.A. § 938.
Schunior v. Russell, 83 Tex. 83, 18 S.W. 484. In
international law generally the term designates
a commercial agent who acts in the place or stead
of a consul or who has charge of a portion of his
territory. In old English law, it meant the deputy
or substitute of an earl (comes), who was ancient-
ly called "consul," answering to the more modern
"vice-comes." Burrill.
Vice-dominos. A sheriff.
Vice-dominus episcopi. The vicar general or
commissary of a bishop. Blount.
Vice-gerent. A deputy or lieutenant.
Vice-judex. In old Lombardic law. A deputy
judge.
Vice-marshal. An officer who was appointed to
assist the earl marshal.
Vice-president of the United States. The title
of the second officer, in point of rank, in the execu-
tive branch of the government of the United
States.
Vice-principal. See Principal.
Vice-versa. Conversely; in inverted order; in
reverse manner.
VICE–COMES NON MISIT BREVE. The sheriff
hath not sent the writ. The form of continuance
on the record after issue and before trial. 7 Mod.
349; 11 Mod. 231.
VICEROY. A person clothed with authority to
act in place of the king; hence, the usual title
of the governor of a dependency.
VICINAGE. Neighborhood; near dwelling; vi-
cinity. 2 Bl.Comm. 33; Cowell. In modern usage,
it means the county where a trial is had, a crime
committed, etc. State v. Crinklaw, 40 Neb. 759,
59 N.W. 370; Con y ers v. Railway Co., 18 Mich.
468; Ex parte MacDonald, 20 Cal.App. 641, 129
P. 957. Also a jury of the county wherein trial
is had. People v. Richardson, 138 Cal.App. 404,
32 P.2d 433, 435.
VICINETUM. The neighborhood; vicinage; the
venue. Co.Litt. 185b.
VICINI VICINIORA PR)ESUMUNTUR SCIRE. 4
Inst. 173. Persons living in the neighborhood are
presumed to know the neighborhood.
VICINITY. Quality or state of being near, or not
remote; nearness; propinquity; proximity; a
region about, near or adjacent; adjoining space or
country. Casper v. City and County of San Fran-
cisco, 6 Ca1.2d 376, 57 P.2d 920, 922. Neighbor-
hood; etymologically, by common understanding,
it admits of a wider latitude than proximity or
contiguity, and may embrace a more extended
space than that lying contiguous to the place in
question; and, as applied to towns and other ter-
ritorial divisions, may embrace those not adja-
cent. Haley v. Ins. Co., 12 Gray (Mass.) 545;
Langley v. Barnstead, 63 N.H. 246; Chandler,
Gardner & Williams v. Reynolds, 250 Mass. 309,
145 N.E. 476, 478.
VICIOUS INTROMISSION. In Scotch law. A
meddling with the movables of a deceased, without
confirmation or probate of his will or other title.
Wharton.
VICIOUS PROPENSITY. A propensity or ten-
dency of animal to do any act which might en-
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danger the safety of persons and property of oth-
ers in a given situation. Hartman v. Aschaffen-
burg, La.App., 12 So.2d 282, 286.
VICIS ET VENELLIS MUNDANDIS. An ancient
writ against the mayor or bailiff of a town, etc.,
for the clean keeping of their streets and lanes.
Reg.Orig. 267.
VICOUNTIEL, or VICONTIEL. Anything that be-
longs to the sheriffs, as vicontiel writs,  e., such
as are triable in the sheriff's court. As to vicon-
tiel rents, see St. 3 & 4 Wm. IV. c. 99, §§ 12, 13,
which places them under the management of the
commissioners of the woods and forests. Cowell.
VICOUNTIEL JURISDICTION. That jurisdiction
which belongs to the officers of a county; as sher-
iffs, coroners, etc.
VICTUALLER. In English law. A person author-
ized by law to keep a house of entertainment for
the public; a publican. 9 Adol. & E. 423. One who
serves food or drink prepared for consumption on
the premises. Friend v. Childs Dining Hall Co.,
231 Mass. 65, 120 N.E. 407, 409, 5 A.L.R. 1100.
VICTUALS. Food ready to eat. Friend v. Childs
Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5
A.L.R. 1100.
VICTUS. Lat. In the civil law. Sustenance; sup-
port; the means of living.
VICTUS, VICTOR! IN EXPENSIS CONDEM-
NANDUS EST. The vanquished is to be con-
demned in costs to the conqueror, or he who loses
the suit pays costs to his adversary. State ex rel.
Macri v. City of Bremerton, 8 Wash.2d 93, 111
P.2d 612, 620.
VIDAME. In French feudal law. Originally, an
officer who represented the bishop, as the viscount
did the count. In process of time, these digni-
taries erected their offices into fiefs, and became
feudal nobles, such as the vidame of Chartres,
Rheims, etc., continuing to take their titles from
the seat of the bishop whom they represented, al-
though the lands held by virtue of their fiefs
might be situated elsewhere. Brande; Burrill.
VIDE. Lat. A word of reference. Vide ante, or
vide supra, refers to a previous passage, vide post,
or vide infra, to a subsequent passage, in a book.
VIDEBIS EA SAZEPE COMMITTI QUIE SIEPE
VINDICANTUR. 3 Inst. Epil. You will see those
things frequently committed which are frequent-
ly punished.
VIDELICET. Lat. The words "to-wit," or "that
is to say," so frequently used in pleading, are
technically called the "videlicet" or "scilicet;"
and when any fact alleged in pleading is preceded
by, or accompanied with these words, such fact
is, in the language of the law, said to be "laid un-
der a videlicet." The use of the videlicet is to
point out, particularize, or render more specific
that which has been previously stated in general
language only; also to explain that which is
doubtful or obscure. Brown. See Stukeley v. But-
ler, Hob. 171; Gleason v. McVickar, 7 Cow. (N.Y.)
43; Com. v. Quinlan, 27 N.E. 8, 153 Mass. 483;
People v. Shaver, 367 Ill. 339, 11 N.E.2d 400, 402.
Its common office is to state time, place, or man-
ner which are of the essence of the matter in
issue. Board of Sup'rs, Warren County, v. Vicks-
burg Hospital, 173 Miss. 805, 163 So. 382.
VIDETUR QUI SURDUS ET MUTUS NE POET
FAIRE ALIENATION. It seems that a deaf and
dumb man cannot alienate. Brower v. Fisher, 4
Johns.Ch. (N.Y.) 444; Brooke, Abr. "Esthete,"
pl. 4.
VIDIMUS. An inspeximus, (q. v.). Barring, Ob.
St. 5.
VIDUA REGIS. Lat. In old English law. A
king's widow. The widow of a tenant in capite.
So called, because she was not allowed to marry
a second time without the king's permission; ob-
taining her dower also from the assignment of
the king, and having the king for her patron and
defender. Spelman.
VIDUITATIS PROFESSIO. Lat. The making a
solemn profession to live a sole and chaste woman.
VIDUITY. Widowhood.
VIE. Fr. Life; occurring in the phrases cestui
que vie, pur autre vie, etc.
VIEW. The right of prospect; the outlook or
prospect from the windows of one's house. A.
species of urban servitude which prohibits the ob-
struction of such prospect. 3 Kent, Comm. 448.
At common law, the proceeding by which tribu-
nal goes to an object which cannot be produced
in court because it is immovable or inconvenient
to remove, and there observes it. Conner v. Park-
er, Tex.Civ.App., 181 S.W.2d 873, 874. An inspec-
tion by the jury previously to the trial of property
in controversy, or of a place where a crime has
been committed. See Garbarsky v. Simkin, 36
Misc. 195, 73 N.Y.S. 199; Wakefield v. Railroad
Co., 63 Me. 385; Lancaster County v. Holyoke, 37
Neb. 328, 55 N.W. 950, 21 L.R.A. 394; Common-
wealth v. Dascalakis, 246 Mass. 12, 140 N.E. 470,
477.
Offense is taking place within "view" of officer, so as
to authorize arrest without warrant when officer's senses
afford him knowledge that offense is being committed.
Bass v. State, 182 Md. 496, 35 A.2d 155, 159; Kennington-
Saenger, Inc. v. Wicks, 168 Miss. 566, 151 So. 549, 551.
Evidence
A "view" is not technically "evidence". Berlandi
v. Commonwealth, 314 Mass. 424, 50 N.E.2d 210,
226.
Effect of jury's view of scene of murder without ac.
cused's presence in person is evidence. Snyder v. Com-
monwealth of Massachusetts, Mass., 54 S.Ct. 330, 291 U.S.
97, 78 L. Ed. 674, 90 A.L.R. 575.
Object of jury in viewing scene of crime is to clarify
situation, and information thus obtained constitutes "evi-
dence." Watson v. State, 166 Tenn. 400, 61 S.W. 476.
The jury's viewing of land, claimed by plaintiff to have
been greatly damaged by overflow of river allegedly caused
by railroad's reconstruction of bridge, although not in all
respects "evidence", was proper to enable jury to under-
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stand better testimony given. Doman v. Baltimore & 0.
R. Co., 125 W.Va. 8, 22 S.E.2d 703, 705.
What was seen by master, in suits to enjoin common-
wealth's interference with outdoor advertising, who trav-
eled to view billboards, etc., was in a sense "evidence."
General Outdoor Advertising Co. v. Department of Public
Works, 289 Mass. 149, 193 N.E. 799, 812.
Where trial judge visited premises what he saw and
observed was "evidence" in plaintiff's personal injury
action. Lee v. Dawson, 44 Cal.App.2d 362, 112 P.2d 683,
685.
VIEW AND DELIVERY. When a right of coin-
mon is exercisable not over the whole waste, but
only in convenient places indicated from time to
time by the lord of the manor or his bailiff, it is
said to be exercisable after "view and delivery."
Elton, Commons, 233.
VIEW, DEMAND OF. In real actions, the defend-
ant was entitled to demand a view, that is, a
sight of the thing, in order to ascertain its iden-
tity and other circumstances. As, if a real action
were brought against a tenant, and such tenant
did not exactly know what land it was that the
demandant asked, then he might pray the view,
which was that he might see the land which the
demandant claimed. Brown.
VIEW OF AN INQUEST. A view or inspection
taken by a jury, summoned upon an inquisition
or inquest, of the place or property to which the
inquisition or inquiry refers. Brown.
VIEW OF FRANK-PLEDGE. In English law.
An examination to see if every freeman above
twelve years of age within the district had taken
the oath of allegiance, and found nine freeman
pledges for his peaceable demeanor. 1 Reeve,
Eng. Law, 7.
VIEWERS. Persons appointed by a court to make
an investigation of certain matters, or to examine
a particular locality, (as, the proposed site of a
new road,) and to report to the court the result
of their inspection, with their opinion on the same.
Old Practice
Persons appointed under writs of view to testi-
fy the view. Rosc. Real Act. 253.
VIF-GAGE. L. Fr. In old English law. A viv-
um vadium or living pledge, as distinguished from
a mortgage or dead pledge. Properly, an estate
given as security for a debt, the debt to be satis-
fied out of the rents, issues, and profits.
VIGIL. In ecclesiastical law. The eve or next
day before any solemn feast.
VIGILANCE. Watchfulness; precaution; a prop-
er degree of activity and promptness in pursuing
one's rights or guarding them from infraction,
or in making or discovering opportunities for the
enforcement of one's lawful claims and demands.
It is the opposite of lathes. Wynne v. Conrad,
220 N.C. 355, 17 S.E.2d 514, 518.
VIGILANT. Watchful, awake, and on the alert;
attentive to discover and avoid danger, or to pro-
vide for safety; circumspect; cautious; wary.
City Ice & Fuel Co. v. Center, 54 Ohio App. 116, 6
N.E.2d 580, 583.
VIGILANTIBUS ET NON DORMIENTIBUS JU-
RA SUBVENIUNT. The laws aid those who are
vigilant, not those who sleep upon their rights. 2
Inst. 690; Merchants' Bank of Newburyport, Pres-
ident, etc., of, v. Stevenson, 7 Allen (Mass.) 493;
Broom, Max. 892.
VIGOR. Lat. Strength; virtue; force; efficien-
cy. Proprio vigore, by its own force.
VIIS ET MODIS. Lat. In the ecclesiastical
courts, service of a decree or citation viis et mod-
is, i. e., by all "ways and means" likely to affect
the party with knowledge of its contents, is equiv-
alent to substituted service in the temporal courts,
and is opposed to personal service. Phillim. Ecc.
Law, 1258, 1283.
VILL. In old English law, this word was used to
signify the parts into which a hundred or wapen-
take was divided. It also signifies a town or city.
Demi-vill
A town consisting of five freemen, or frank-
pledges. Spelman.
VILLA EST EX PLURIBUS MANSIONIBUS VIC-
INATA, ET COLLATA EX PLURIBUS VICINIS,
ET SUB APPELLATIONE VILLARUM CONTIN-
ENTUR BURGI ET CIVITATES. Co. Litt. 115.
Vill is a neighborhood of many mansions, a col-
lection of many neighbors, and under the term of
"vills" boroughs and cities are contained.
VILLA REGIA. Lat. In Saxon law. A royal
residence. Spelman.
VILLAGE. A collection of houses collocated aft-
er something like regular plan regarding streets
and lanes, without intervening farm land, but with
convenient curtilages attached, an assemblage of
houses, less than a town or city, but urban or
semiurban in character, or any small assemblage
of houses for dwellings, business, or both, in coun-
try, whether situated on regularly laid out streets
and alleys or not. Supervisors of Manheim Tp.,
Lancaster County, v. Workman, 154 Pa.Super. 146,
35 A.2d 747, 750.
In some states, this is the legal description of a
class of municipal corporations of smaller popula-
tion than "cities" and having a simpler form of
government, and corresponding to "towns" and
"boroughs," as these terms are employed else-
where.
So it was held that a "village" is a municipal corpora-
tion invested with particular franchises, and it may take
and hold real and personal estate absolutely or in trust
for any public use, and its corporate powers extend be-
yond the field of local government and the administration
of local affairs. Village of Kenmore v. Erie County, 252
N.Y. 437, 169 N.E. 637, 639.
VILLAIN. An opprobrious epithet, implying
great moral delinquency, and equivalent to knave,
rascal, or scoundrel. The word is libelous. 1 Bos.
& P. 331.
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VILLANIS REGIS SUBTRACTIS REDUCENDIS.
A writ that lay for the bringing back of the king's
bondmen, that had been carried away by others
out of his manors whereto they belonged. Reg.
Orig. 87.
VILLANUM SERVITIUM. In old English law.
Villein service. Fleta, lib. 3, c. 13, § 1.
VILLEIN. A person attached to a manor, who
was substantially in the condition of a slave, who
performed the base and servile work upon the
manor for the lord, and was, in most respects, a
subject of property belonging to him. 1 Washb.
Real Prop. 26.
VILLEIN IN GROSS. A villein who was annexed
to the person of the lord, and transferable by
deed from one owner to another. 2 Bl. Comm. 93.
VILLEIN REGARDANT. A villein annexed to
the manor of land; a serf.
VILLEIN SERVICES. Base services, such as vil-
eins performed. 2 Bl. Comm. 93. They were not,
however, exclusively confined to villeins, since
they might be performed by freemen, without im-
pairing their free condition. Bract. fol. 24b.
VILLEIN SOCAGE. In feudal and old English
law. A species of tenure in which the services to
be rendered were certain and determinate, but
were of a base or servile nature; i. e., not suitable
to a man of free and honorable rank. This was
also called "privileged villeinage," to distinguish
it from "pure villeinage," in which the services
were not certain, but the tenant was obliged to do
whatever he was commanded. 2 Bl. Comm. 61.
VILLENAGE. A servile kind of tenure belonging
to lands or tenements, whereby the tenant was
bound to do all such services as the lord com-
manded, or were fit for a villein to do. Cowell.
See Villein.
Pure Villenage
A base tenure, where a man holds upon terms
of doing whatsoever is commanded of him, nor
knows in the evening what is to be done in the
morning, and is always bound to an uncertain
service. 1 Steph. Comm. (7th Ed.) 188.
VILLENOUS JUDGMENT. A judgment which de-
prived one of his libera lex, whereby he was dis-
credited and disabled as a juror or witness; for-
feited his goods and chattels and lands for life;
wasted the lands, razed the houses, rooted up the
trees, and committed his body to prison. It has
become obsolete. 4 Bl. Comm. 136; 4 Steph.
Comm. 230; 4 Broom & H. Comm. 153. Wharton.
VIM VI REPELLERE LICET, MODO FIAT MOD-
ERAMINE EN'CULPATIE TUTELZE, NON AD
SUMENDAM VINDICTAM, SED AD PROPUL-
SANDAM INJURIAM. It is lawful to repel force
by force, provided it be done with the moderation
of blameless defense, not for the purpose of tak-
ing revenge, but to ward off injury. Co. Litt. 162a.
VINAGIUM. A payment of a certain quantity of
wine instead of rent for a vineyard. 2 Mon. Ang.
p. 980.
VINCULACION. In Spanish law. An entail.
Schm. Civil Law, 308.
VINCULO. In Spanish law. The bond, chain, or
tie of marriage. White, New Recop. b. 1, tit. 6,
c. 1, § 2.
VINCULO MATRIMONII. See A Vinculo Matri-
monii; Divorce.
VINCULUM JURIS. In the Roman law, an obli-
gation is defined as a vinculum juris, e., "a bond
of law," whereby one party becomes or is bound
to another to do something according to law.
VINDEX. Lat. In the civil law. A defender.
VINDICARE. Lat. In the civil law. To claim,
or challenge; to demand one's own; to assert a
right in or to a thing; to assert or claim a prop-
erty in a thing; to claim a thing as one's own.
Calvin.
VINDICATIO. Lat. In the civil law. The claim-
ing a thing as one's own; the asserting of a right
or title in or to a thing.
VINDICATORY PARTS OF LAWS. The sanc-
tion of the laws, whereby it is signified what evil
or penalty shall be incurred by such as commit
any public wrongs, and transgress or neglect their
duty. 1 Steph. Comm. 37.
VINDICTA. In Roman law. A rod or wand;
and, from the use of that instrument in their
course, various legal acts came to be distinguished
by the term; e. g., one of the three ancient modes
of manumission was by the vindicta; also the
rod or wand intervened in the progress of the
old action of vindicatio, whence the name of that
action. Brown.
VINDICTIVE DAMAGES. See Damages.
VINOUS LIQUORS. This term includes all alco-
holic beverages made from the juice of the grape
by the process of fermentation, and perhaps sim-
ilar liquors made from apples and from some
species of berries; but not pure alcohol nor dis-
tilled liquors nor malt liquors such as beer and
ale. See Adler v. State, 55 Ala. 23; Reyfelt v.
State, 73 Miss. 415, 18 So. 925; Lemly v. State, 70
Miss. 241, 12 So. 22, 20 L.R.A. 645; Corn. v. Rey-
burg, 122 Pa. 299, 16 A. 351, 2 L.R.A. 415; Feldman
v. Morrison, 1 I11.App. 462; Hinton v. State, 132
Ala. 29, 31 So. 563.
VINTNER. One who sells wine. A covenant pro-
hibiting the trade .of a vintner includes a person
selling wines not to be drunk on the premises.
25 L. T. (N. S.) 312.
VIOL. Fr. In French law. Rape. Barring. Ob.
St. 139.
VIOLATION. Injury; infringement; breach of
right, duty or law; ravishment; seduction. The
statute 25 Edw. III. St. 5, c. 2, enacts that any
person who shall violate the king's companion
shall be guilty of high treason.
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VIOLENCE
VIOLENCE. Unjust or unwarranted exercise of
force, usually with the accompaniment of vehem-
ence, outrage or fury. People v. Mcllvain, 55 Cal.
App.2d 322, 130 P.2d 131, 134. Force, physical
force, force unlawfully exercised, the abuse of
force, that force which is employed against com-
mon right, against the laws, and against public
liberty. Merl. Repert; Anderson-Berney Bldg. Co.
v. Lowry, Tex.Civ.App., 143 S.W.2d 401, 403.
"Violence" in labor disputes is not limited to physical
contact or injury, but may include picketing conducted
with misleading signs, false statements, publicity, and
veiled threats by words and acts. Esco Operating Corpora-
tion v. Kaplan, 258 N.Y.S. 303, 144 Misc. 646.
VIOLENT. Moving, acting, or characterized, by
physical force, especially by extreme and sudden
or by unjust or improper force; furious, vehe-
ment; as a violent storm or wind; a violent at-
tack: marked by, or due to, strong mental excite-
ment; vehement, passionate; as, violent speech;
violent reproaches: produced or effected by force;
not spontaneous or natural; unnatural; abnor-
mal; as, a violent death: acting with or exerting
great force on the mind, or as evidence; nearly
conclusive, as in the phrase, often used in legal
contention, violent presumption: great; extreme;
used intensively; as a violent contrast in colors,
violent pain, passion, etc. Provident Life & Acci-
dent Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 S.
W.2d 292, 296.
VIOLENT DEATH. Death caused by violent ex-
ternal means, as distinguished from natural death,
caused by disease or the wasting of the vital forc-
es.
Death is "violent" within accident policy if it results
from external agency and is not in ordinary course of
nature. Caffaro v. Metropolitan Life Ins. Co., 14 N.J.Misc.
167, 183 A. 200.
VIOLENT PRESUMPTION. In the law of evi-
dence. Proof of a fact by the proof of circum-
stances which necessarily attend it. 3 Bl. Comm.
371. Violent presumption is many times equal to
full proof. 3 Bl. Comm. 371. See Davis v. Curry,
2 Bibb (Ky.) 239; Shealy v. Edwards, 75 Ala. 419.
Something more than a mere "presumption".
Hughes v. State, 212 Ind. 577, 10 N.E.2d 629, 633.
VIOLENT PROFITS. Mesne profits in Scotland.
"They are so called because due on the tenant's
forcible or unwarrantable detaining the posses-
sion after he ought to have removed." Ersk. Inst.
2, 6, 54; Bell.
VIOLENTA PRIESUMPTIO ALIQUANDO EST
PLENA PROBATIO. Co. Litt. 6b. Violent pre-
sumption is sometimes full proof.
VIOLENTLY. By the use of force; forcibly;
with violence. The term is used in indictments
for certain offenses. State v. Blake, 39 Me. 324;
State v. Crawford, 60 Utah 6, 206 P. 717, 718.
VIPERINA EST EXPOSITIO QUIE CORRODIT
VISCERA TEXTUS. 11 Coke, 34. It is a poison.
ous exposition which destroys the vitals of the
text.
VIR. Lat. A man, especially as marking the
sex. In the Latin phrases and maxims of the old
English law, this word generally means "hus-
band," the expression vir et uxor corresponding
to the law French baron et feme.
VIR ET UXOR CENSENTUR IN LEGE UNA
PERSONA. Jenk. Cent. 27. Husband and wife
are considered one person in law.
VIR ET UXOR SUNT QUASI UNICA PERSONA,
QUIA CARO ET SANGUIS UNUS; RES LICET
SIT PROPRIA UXORIS, VIR TAMEN EJUS CUS-
TOS, CUM SIT CAPUT MULIERIS. Co. Litt. 112.
Man and wife are, as it were, one person, because
only one flesh and blood; although the property
may be the wife's, the husband is keeper of it,
since he is the head of the wife.
VIR MILITANS DEO NON IMPLICETUR SEC-
ULARIBUS NEGOTIIS. Co. Litt. 70. A man
fighting for God must not be involved in secular
business.
VIBES. Lat. (The plural of "vis.") Powers;
forces; capabilities; natural powers; powers
granted or limited. See Ultra Vines.
VIRES ACQUIRIT EUNDO. It gains strength by
continuance. Mann v. Mann's Ex'rs, 1 Johns. Ch.
(N.Y.) 231, 237.
VIRGA. In old English law. A rod or staff; a
rod or ensign of office. Cowell.
VIRGA TERME, (or VIRGATA TERRIE.) In old
English law. A yard-land; a measure of land of
variable quantity, containing in some places twen-
ty, in others twenty-four, in others thirty, and in
others forty, acres. Cowell; Co. Litt. 5a.
VIRGATA. A quarter of an acre of land. It
might also be used to express a quarter of a hide
of land.
VIRGATA REGIA. In old English law. The
verge; the bounds of the king's household, within
which the court of the steward had jurisdiction.
Crabb, Eng. Law, 185.
VIRGATE. A yard-land.
VIRGE, TENANT BY. A species of copyholder,
who holds by the virge or rod.
VIRGO INTACTA. Lat. A pure virgin.
VIRIDARIO ELIGENDO. A writ for choice of a
verderer in the forest. Reg. Orig. 177.
VIRILIA. The privy members of a man, to cut
off which was felony by the common law, though
the party consented to it. Bract. 1. 3, 144; Cowell.
VIRTUAL REPRESENTATION, DOCTRINE OF.
Under this doctrine, where parties interested are
numerous and the suit is for an object common to
all of them, some of the body may maintain a bill
on behalf of themselves and of the others. Pad-
way v. Pacific Mut. Life Ins. Co. of California, D.C.
Wis., 42 F.Supp. 569, 576; Waybright v. Columbian
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VISE
Mut. Life Ins. Co., D.C.Tenn., 30 F.Supp. 885, 888;
Lightle v. Kirby, 194 Ark. 535, 108 S.W.2d 896, 897.
VIRTUOUS. A woman is a "virtuous female" if
her body be pure and if she has never had sexual
intercourse with another, though both her mind
and heart be impure. Thomas v. State, 19 Ga.App.
104, 91 S.E. 247, 250.
VIRTUTE CUJUS. Lat. By virtue whereof. This
was the clause in a pleading justifying an entry
upon land, by which the party alleged that it was
in virtue of an order from one entitled that he
entered. Wharton.
VIRTUTE OFFICII. Lat. By virtue of his office.
By the authority vested in him as the incumbent
of the particular office.
An officer acts "virtute officii" when he acts by the au-
thority vested in him as the incumbent of the particular
office. Aldridge v. Wooten, 68 Ga.App. 887, 24 S.E.2d 700,
701. Where acts done are within the authority of the offi-
cer, but in doing them he exercises that authority improp-
erly, or abuses the confidence which the law reposes in
him, whilst acts done "colore officii" are where they are of
such a nature that his office gives him no authority to do
them. State v. Roy, 41 N.M. 308, 68 P.2d 162, 165; Yuma
County v. Wisener, 45 Ariz. 475, 46 P.2d 115, 118, 99 A.L.R.
642.
VIS. Lat. Any kind of force, violence, or disturb-
ance relating to a man's person or his property.
The plural is vires (q. v.).
VIS ABLATIVA. In the civil law. Ablative force;
force which is exerted in taking away a thing
from another. Calvin.
VIS ARMATA. In the civil and old English law.
Armed force; force exerted by means of arms or
weapons.
VIS CLANDESTINA. In old English law. Clan-
destine force; such as is used by night. Bract. fol.
162.
VIS COMPULSIVA. In the civil and old English
law. Compulsive force; that which is exerted to
compel another to do an act against his will;
force exerted by menaces or terror.
VIS DIVINA. In the civil law. Divine or super-
human force; the act of God.
VIS ET METUS. In Scotch law. Force and fear.
Bell.
VIS EXPULSIVA. In old English law. Expul-
sive force; force used to expel another, or put
him out of his possession. Bracton contrasts it
with "vis simplex," and divides it into expulsive
force with arms, and expulsive force without
arms. Bract. fol. 162.
VIS EXTURBATIVA. In the civil law. Exturba-
tive force; force used to thrust out another.
Force used between two contending claimants of
possession, the one endeavoring to thrust out the
other. Calvin.
VIS FLUMINIS. In the civil law. The force of a
river; the force exerted by a stream or current;
water-power.
VIS IMPRESSA. The original act of force out of
which an injury arises, as distinguished from "vis
proxima," the proximate force, or immediate
cause of the injury. 2 Greenl. Ev. § 224.
VIS INERMIS. In old English law. Unarmed
force; the opposite of "vis armada." Bract. fol.
162.
VIS INJURIOSA. In old English law. Wrongful
force;  otherwise called "illicita," (unlawful.)
Bract. fol. 162.
VIS INQUIETATIVA. In the civil law. Disquiet-
ing force. Calvin. Bracton defines it to be where
one does not permit another to use his possession
quietly and in peace. Bract. fol. 162.
VIS LAICA. In old English law. Lay force; an
armed force used to hold possession of a church.
Reg. Orig. 59, 60.
VIS LEGIBUS EST INIMICA, 3 Inst. 176. Vio-
lence is inimical to the laws.
VIS LICITA. In old English law. Lawful force.
Bract. fol. 162.
VIS MAJOR. A greater or superior force; an
irresistible force. A loss that results immediately
from a natural cause without the intervention of
man, and could not have been prevented by the
exercise of prudence, diligence, and care. The
George Shiras, 9 C.C.A. 511, 61 F. 300, 17 U.S.App.
528; National Carbon Co. v. Bankers Mbrtg. Co.
of Topeka, C.C.A.Kan., 77 F.2d 614, 617. A natural
and inevitable necessity, and one arising wholly
above the control of human agencies, and which
occurs independently of human action or neglect.
The Adventuress, D.C.Mass., 214 F. 834, 839. In
the civil law, this term is sometimes used as
synonymous with "vis divina," or the act of God.
Calvin. Noel Bros. v. Texas and P. Ry. Co., 16 La.
App. 622, 133 So. 830, 831.
VIS PERTUBATIVA. In old English law. Force
used between parties contending for a possession.
VIS PROXIMA. Immediate force. See Vis Im-
pressa.
VIS SIMPLEX. In old English law. Simple or
mere force. Distinguished by Bracton from "vis
armata," and also from "vis expulsiva." Bract.
fol. 162.
VISA. An official indorsement upon a document,
passport, commercial book, etc., to certify that it
has been examined and found correct or in due
form. See also Vise.
VISCOUNT. A decree of English nobility, next
below that of earl.
An old title of the sheriff.
VISE. An indorsement made on a passport by the
proper authorities, denoting that it has been ex-
amined, and that the person who bears it is per-
mitted to proceed on his journey. Webster. See
also Visa.
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VISIBLE
VISIBLE. Perceptible, discernible, clear, distinct,
evident, open, conspicuous. Mutual Trust & De-
posit Co. v. Travelers' Protective Ass'n of Amer-
ica, 57 Ind.App. 329, 104 N.E. 880, 883; Branch v.
State, 73 Tex.Cr.R. 471, 165 S.W. 605, 606.
VISIT. In international law. The right of visit or
visitation is the right of a cruiser or war-ship to
stop a vessel sailing under another flag on the
high seas, and send an officer to such vessel to as-
certain whether her nationality is what it purports
to be. It is exercisable only when suspicious cir-
cumstances attend the vessel to be visited; as
when she is suspected of a piratical character.
VISITATION. Inspection; superintendence; di-
rection; regulation. Bank of America Nat. Trust
& Savings Ass'n v. Douglas, 70 App.D.C. 221, 105
F.2d 100, 105, 123 A.L.R. 1266.
As applied to corporations, means, in law, the act of a
superior or superintending officer who visits a corporation
to examine into its manner of conducting business and to
enforce an observance of its laws and regulations. Kaw-
field Oil Co. v. Illinois Refining Co., 169 Okl. 75, 35 P.2d
961, 963. Also a power given by law to the founders of all
eleemosynary corporations. 2 Kent, Comm. 300-303; 1 Bl.
Comm. 480, 481. In England, the visitation of ecclesiasti-
cal corporations belongs to the ordinary. 1 Bl.Comm. 480,
481. See Trustees of Union Baptist Ass'n v. Hunn, 7 Tex.
Civ.App. 249, 26 S.W. 755; Thompson v. Southern Con-
nellsville Coke Co., 269 Pa. 500, 112 A. 533, 534.
VISITATION BOOKS. In English law. Books
compiled by the heralds, when progresses were
solemnly and regularly made into every part of
the kingdom, to inquire into the state of families,
and to register such marriages and descents as
were verified to them upon oath; they were al-
lowed to be good evidence of pedigree. 3 Bl.
Comm. 105; 3 Steph.Comm. 724.
VISITOR. An inspector of the government of cor-
porations, or bodies politic. 1 Bl.Comm. 482.
The ordinary is visitor of spiritual corporations. But
corporations instituted for private charity, if they are
lay, are visitable by the founder, or whom he shall ap-
point; and from the sentence of such visitor there lies no
appeal. By implication of law, the founder and his heirs
are visitors of lay foundations, if no particular person is
appointed by him to see that the charity is not perverted.
Jacob.
The term "visitor" is also applied to an official appoint-
ed to see and report upon persons found lunatics by in-
quisition, and to a person appointed by a school board to
visit houses and see that parents are complying with the
provisions in reference to the education of their children.
Mozley & Whitley.
VISITOR OF MANNERS. The regarder's office
in the forest. Manw. i. 195.
VISNE. L. Fr. The neighborhood; vicinage;
venue. The district from which juries were drawn
at common law. Ex parte McNeeley, 36 W.Va.
84, 14 S.E. 436, 15 L.R.A. 226, 32 Am.St.Rep. 831;
State v. Kemp, 34 Minn. 61, 24 N.W. 349.
VISUS. Lat. In old English practice. View; in-
spection, either of a place or person.
VITAL STATISTICS. Public records kept by a
state, city or other governmental subdivision, un-
der a statutory provision, of births, marriages and
deaths, and disease.
VITAMIN. Nitrogenous substance found in some
nucleic acids in the form of pyrimidine bases, as
cytosin, minute quantities of which are essential to
the diet of man, birds, and other animals. In re
Wallerstein, Cust. & Pat. App., 53 F.2d 530, 531.
"Vitamin D" functions in regulating the metabolism of
calcium and phosphorus in the body and is, therefore,
concerned with the proper formation of bones and teeth.
It is recognized as especially beneficial in the infant and
growing child as a preventative and therapy of rickets and
the building of strong bones and teeth. It is also an es-
sential vitamin for adults. Vitamin D in nature is found
almost exclusively in sunshine and certain fish livers which
are unavailable to humans in the normal diet. Quaker
Oats Co. v. Federal Security Administrator, C.C.A.7, 129
F.2d 76, 80.
VITIATE. To impair; to make void or voidable;
to cause to fail of force or effect; to destroy or
annul, either entirely or in part, the legal efficacy
and binding force of an act or instrument; as
when it is said that fraud vitiates a contract.
VITILIGATE. To litigate cavilously, vexatiously,
or from merely quarrelsome motives.
VITIOUS INTROMISSION. In Scotch law. An
unwarrantable intermeddling with the movable
estate of a person deceased, without the order of
law. Ersk.Prin. b. 3, tit. 9, § 25. The irregular in-
termeddling with the effects of a deceased person,
which subjects the party to the whole debts of the
deceased. 2 Karnes, Eq. 327.
VITIUM CLERICI. In old English law. The mis-
take of a clerk; a clerical error.
VITIUM CLERICI NOCERE NON DEBET. Jenk.
Cent. 23. A clerical error ought not to hurt.
VITIUM EST QUOD FUGI DEBET, NISI, RA-
TIONEM NON INVENIAS, MOX LEGEM SINE
RATIONE ESSE CLAMES. Ellesm. Post. N. 86.
It is a fault which ought to be avoided, that if you
cannot discover the reason you should presently
exclaim, that the law is without reason.
VITIUM SCRIPTORIS. In old English law. The
fault or mistake of a writer or copyist; a clerical
error. Gilb. Forum Rom. 185.
VITREOUS. Consisting of or resembling glass in
its important characteristics. Vantine & Co. v.
U. S., 9 Ct.Cust.App. 291, 292.
VITRICUS. Lat. In the civil law. A stepfather;
a mother's second husband. Calvin.
VIVA AQUA. Lat. In the civil law. Living
water; running water; that which issues from a
spring or fountain. Calvin.
VIVA PECUNIA. Lat. Cattle, which obtained
this name from being received during the Saxon
period as money upon most occasions, at certain
regulated prices. Cowell.
VIVA VOCE. Lat. With the living voice; by
word of mouth. As applied to the examination of
witnesses, this phrase is equivalent to "orally."
It is used in contradistinction to evidence on affi-
davits or depositions. As descriptive of a species
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VOID
of voting, it signifies voting by speech or outcry,
as distinguished from voting by a written or
printed ballot.
The word "ballot" is used as a symbol of secrecy, while
"viva voce" is used as a symbol of publicity. Day v.
Walker, 124 Neb. 500, 247 N.Vv7. 350, 351.
VIVARIUM. Lat. In the civil law. An inclosed
place, where live wild animals are kept. Calvin.;
Spelman.
VIVARY. In English law. A place for keeping
wild animals alive, including fishes; a fish pond,
park, or warren.
VIVUM VADIUM. See Vadium.
VIX ULLA LEX FIERI POTEST QU2E OMNI-
BUS COMMODA SIT, SED SI MAJORI PARTI
PROSPICIAT, UTILIS EST. Scarcely any law
can be made which is adapted to all, but, if it
provide for the greater part, it is useful. Plowd.
369.
VIZ. A contraction for videlicet, to-wit, namely,
that is to say.
VOCABULA ARTIS. Lat. Words of art; techni-
cal terms.
VOCABULA ARTIUM EXPLICANDA SUNT
SECUNDUM DEFINITIONES PRUDENTUM.
Terms of arts are to be explained according to
the definitions of the learned or skilled [in such
arts.] Bl. Law Tracts, 6.
VOCARE AD CURIAM. In feudal law. To sum-
mon to court. Feud. Lib. 2, tit. 22.
VOCATIO IN JUS. Lat. A summoning to court.
In the earlier practice of the Roman law, (under
the legis actiones,) the creditor orally called upon
his debtor to go with him before the prtor for
the purpose of determining their controversy, say-
ing, "In jus eamus; in jus te voco." This was
called "vocatio in jus."
VOCATION. One's regular calling or business.
Mutual Life Ins. Co. of New York v. Enecks, 41
Ga.App. 644, 154 S.E. 198, 199. The activity on
which one spends major portion of his time and
out of which he makes his living. Employers'
Liability Assur. Corporation v. Accident & Casual-
ty Ins. Co. of Winterthur, Switzerland, C.C.A.
Ohio, 134 F.2d 566, 568.
VOCIFERATIO. Lat. In old English law. Out-
cry; hue and cry. Cowell.
VOCIFEROUS. In a statute forbidding the use of
loud and vociferous language, making a loud out-
cry; clamorous; noisy. Webst.; Anderson v.
State, Tex.Cr.App., 20 S.W. 359; Thomason v.
State, 98 Tex.Cr.R. 312, 265 S.W. 579.
VOCO. Lat. In the civil and old English law. 1
call; I summon; I vouch. In jus voco te, I sum-
mon you to court; I summon you before the
prtor. The formula by which a Roman action
was anciently commenced. Adams, Rom. Ant. 242.
Black's Law Dictionary Revised 4th Ed.—HO
VOID. Null; ineffectual; nugatory; having no
legal force or binding effect; unable, in law, to
support the purpose for which it was intended.
McGarry v. Village of Wilmette, 303 Ill. 147, 135
N.E. 96, 98; Hardison v. Gledhill, Ga.App., 33
S.E.2d 921, 924.
There is this difference between the two words "void"
and "voidable:" void in the strict sense, means that an
instrument or transaction is nugatory and ineffectual so
that nothing can cure it; voidable, when an imperfection
or defect can be cured by the act or confirmation of him
who could take advantage of it. Wharton. The term
"void," however, as applicable to conveyances or other
agreements, has not at all times been used with technical
precision, nor restricted to its peculiar and limited sense,
as contradistinguished from "voidable ;" it being frequent-
ly introduced, even by legal writers and jurists, when the
purpose is nothing further than to indicate that a contract
was invalid, and not binding in law. But the distinction
between the terms "void" and "voidable," in their appli-
cation to contracts, is often one of great practical impor-
tance; and, whenever entire technical accuracy is re-
quired, the term "void" can only be properly applied to
those contracts that are of no effect whatsoever, such as
are a mere nullity, and incapable of confirmation or rati-
fication. Allis v. Billings, 6 Mete., Mass., 415, 39 Am.Dec.
744.
The word "void," in its strictest sense, means that which
has no force and effect, is without legal efficacy, is inca-
pable of being enforced by law, or has no legal or binding
force, but frequently the word is used and construed as
having the more liberal meaning of "voidable." In re
Validation of $50,000 Serial Funding Bonds of Clarke Coun-
ty, 187 Miss. 512, 193 So. 449, 452.
The word "void" is used in statutes in the sense of
utterly void so as to be incapable of ratification, and also
in the sense of voidable and resort must be had to the
rules of construction in many cases to determine in which
sense the Legislature intended to use it. An act or con-
tract neither wrong in itself nor against public policy,
which has been declared void by statute for the protection
or benefit of a certain party, or class of parties, is voidable
only. U. S. v. New York & Porto Rico S. S. Co., 239 U.S.
88, 36 S.Ct. 41, 42, 60 L. Ed. 161; Weede v. Iowa Southern
Utilities Co. of Delaware, 231 Iowa 784, 2 N.W.2d 372, 397,
398.
VOID CONTRACT. One which never had any
legal existence or effect, and such contract can-
not in any manner have life breathed into it. Na-
tional Union Indemnity Co. v. Bruce Bros., Inc.,
44 Ariz. 454, 38 P.2d 648, 652. Expression denotes
that the parties to the transaction have gone
through the form of making a contract, but that
none has been made in law because of lack of
some essential element of a contract, and such
contract creates no legal rights and either party
thereto may ignore it at his pleasure, in so far as
it is executory. Griffin v. Smith, C.C.A.Ind., 101
F.2d 348, 350.
VOID IN PART, VOID IN TOTO. Curtis v. Lea-
vitt, 15 N.Y. 9, 96.
VOID JUDGMENT. One which has no legal force
or effect, invalidity of which may be asserted by
any person whose rights are affected at any time
and at any place directly or collaterally. Reynolds
v. Volunteer State Life Ins. Co., Tex.Civ.App., 80
S.W.2d 1087, 1092. One which, from its inception
is and forever continues to be absolutely null,
without legal efficacy, ineffectual to bind parties
or support a right, of no legal force and effect
whatever, and incapable of confirmation, ratifica-
tion, or enforcement in any manner or to any de-
gree. Ex parte Myers, 121 Neb. 56, 236 N.W. 143,
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VOID
144. One that has merely semblance without
some essential elements, as want of jurisdiction or
failure to serve process or have party in court.
Wellons v. Lassiter, 200 N.C. 474, 157 S.E. 434,
436. It is subject to collateral attack. Owens
v. Cocroft, 14 Ga.App. 322, 80 S.E. 906, 907.
VOID MARRIAGE. One not good for any legal
purpose, the invalidity of which may be main-
tained in any proceeding between any parties,
while a "voidable marriage" is one where there
is an imperfection which can be inquired into
only during the lives of both of the parties in a
proceeding to obtain a sentence declaring it void.
State v. Smith, 101. S.C. 293, 85 S.E. 958, 959, Ann.
Cas.1917C, 149.
"Voidable marriage" is valid for all civil puposes until
annulled in direct proceedings, but "void marriage" is
nullity and may be impeached at any time. Pridgen v.
Pridgen, 203 N.C. 533, 166 S.E. 591, 593.
VOID PROCESS. One which fails in some ma-
terial respect to comply with the requisite form
of legal process. United States v. Van Dusen, C.
C.A.Minn., 78 F.2d 121, 124.
VOID THINGS ARE AS NO THINGS. People v.
Shall, 9 Cow. (N.Y.) 778, 784.
VOIDABLE. That may be avoided, or declared
void; not absolutely void, or void in itself.  2
Kent, Comm. 234. That which operates to accom-
plish the thing sought to be accomplished, until
the fatal vice in the transaction has been judicially
ascertained and declared. Slaughter v. Qualls,
Tex., 162 S.W.2d 671, 674. It imports a valid act
which may be avoided rather than an invalid
act which may be confirmed. Paulson v. McMillan,
8 Wash.2d 295, 111 P.2d 983, 985. See Void.
VOIDABLE CONTRACT. One which is void as to
wrongdoer but not void as to wronged party, un-
less he elects to so treat it. Depner v. Joseph
Zukin Blouses, 13 Cal.App.2d 124, 56 P.2d 574, 575.
See, also, Void.
VOIDABLE JUDGMENT. One apparently valid,
but in truth wanting in some material respect.
Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.
App., 80 S.W.2d 1087, 1092. One rendered by a
court having jurisdiction but which is irregularly
and erroneously rendered. Tanton v. State Nat.
Bank of El Paso, Tex., 43 S.W.2d 957, 960; Gehret
v. Hetkes, Tex., 36 S.W.2d 700, 701; Easterline v.
Bean, Tex., 49 S.W.2d 427, 429.
VOIDABLE MARRIAGE. See Void Marriage.
VOIDABLE PREFERENCE. Under Bankruptcy
Act, where person while insolvent and within four
months of bankruptcy transferred property, effect
of which will be to enable one creditor to obtain
greater percentage of his debt than other credi-
tors of same class and person receiving it or to be
benefited thereby has reasonable cause to believe
that enforcement of transfer will result in pref-
erence. Bankr.Act §§ 60a, 60b, 11 U.S.C.A. § 96
(a, b). Haas v. Sachs, C.C.A.Ark., 68 F.2d 623,
625. But it is unnecessary that bankrupt should
have intended to prefer person receiving or bene-
fited by transfer. Sams v. First Nat. Bank of
Meridian, Miss., 181 So. 320, 321.
VOIDANCE. The act of emptying; ejection from
a benefice.
VOIR DIRE. L. Fr. To speak the truth. This
phrase denotes the preliminary examination which
the court may make of one presented as a witness
or juror, where his competency, interest, etc., is
objected to. State v. McRae, 200 N.C. 149, 156 S.E.
800, 803.
VOITURE. Fr. Carriage; transportation by car-
riage.
VOLENS. Lat. Wining. He is said to be willing
who either expressly consents or tacitly makes no
opposition. Calvin.
VOLENTI NON FIT INJURIA. He who consents
cannot receive an injury. Broom, Max. 268, 269,
271, 395; Shelf. Mar. & Div. 449; Poole v. Lutz and
Schmidt, 273 Ky. 586, 117 S.W.2d 575, 576.
VOLITIONAL INSANITY. Which means that al-
though accused can distinguish between right and
wrong, still he is unable because of mental dis-
ease to resist the impulse to commit the criminal
act. State v. Jackson, 346 Mo. 474, 142 S.W.2d 45,
49.
VOLUIT, SED NON DIXIT. He willed, but he did
not say. He may have intended so, but he did not
say so. A maxim frequently used in the construc-
tion of wills, an answer to arguments based upon
the supposed intention of a testator. 2 Pow.Dev.
625; 4 Kent, Comm. 538.
VOLUMEN. Lat. In the civil law. A volume;
so called from its form, being rolled up.
VOLUMUS. Lat. We will; it is our will. The
first word of a clause in the royal writs of protec-
tion and letters patent. Cowell.
VOLUNTARILY. Done by design or intention,
intentional, proposed, intended, or not accidental.
Louisville & N. R. Co. v. Hall, 223 Ala. 338, 135
So. 466, 471. Intentionally and without coercion.
Young v. Young, 148 Kan. 876, 84 P.2d 916, 917.
VOLUNTARILY LEAVING WORK. So as to
render employee ineligible for unemployment com-
pensation exists where employee, without action
by the employer, resigns, leaves, or quits his em-
ployment. Department of Labor and Industry v.
Unemployment Compensation Board of Review,
133 Pa.Super. 518, 3 A.2d 211, 214, 215.
VOLUNTARIUS DiEMON. A voluntary madman.
A term applied by Lord Coke to a drunkard, who
has voluntarily contracted madness by intoxica-
tion. Co.Litt. 247; 4 Bl.Comm. 25.
VOLUNTARY. Unconstrained by interference;
unimpelled by another's influence; spontaneous;
acting of oneself. Coker v. State, 199 Ga. 20, 33
S.E.2d 171, 174. Done by design or intention, pur-
pose, intended. Nelson County v. Williams Coun-
ty, N.D., 276 N.W. 265, 269. Proceeding from the
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VOLUNTEER
free and unrestrained will of the person. Brown
v. McCulloch, Tenn.App., 144 S.W.2d 1, 4. Pro-
duced in or by an act of choice. Hartingh v. Bay
Circuit Judge, 176 Mich. 289, 142 N.W. 585, 587,
Ann.Cas.1915B, 520. Resulting from choosing.
Travelers' Protective Ass'n v. Jones, 75 Ind.App.
29, 127 N.E. 783, 784. The word, especially in
statutes, often implies knowledge of essential
facts. Sweeney v. Sweeney, 96 Vt. 196, 118 A. 882,
26 A.L.R. 1066; Choate v. State, 19 Okl.Cr. 169,
197 P. 1060, 1063.
Without consideration; without valuable con-
sideration; gratuitous, as a voluntary convey-
ance. London v. G. L. Anderson Brass Works, 197
Ala. 16, 72 So. 359, 363. Also, having a . merely
nominal consideration; as, a voluntary deed.
Russ v. Blackshear, 88 Fla. 573, 102 So. 749, 750.
As to voluntary "Answer," "Assignment,"
"Bankruptcy," "Confession," "Conveyance," "De-
posit," "Escape," "Indebtedness," "Manslaughter,"
"Nonsuit," "Oath," "Payment," "Redemption,"
"Sale," "Settlement," "Trust," and "Waste," see
those titles.
VOLUNTARY ABANDONMENT. As ground for
divorce within statutes is constituted, if there is
a final departure, without consent of other party,
without sufficient reason and without intent to
return. Nelson v. Nelson, 244 Ala. 421, 14 So.2d
155, 156.
VOLUNTARY COURTESY. A voluntary act of
kindness; an act of kindness performed by one
man towards another, of the free will and inclina-
tion of the doer, without any previous request or
promise of reward made by him who is the object
of the courtesy; from which the law will not im-
ply a promise of remuneration. Holthouse.
VOLUNTARY DISCONTINUANCE. Voluntary
action on part of plaintiff, whereby his case goes
out of court without decision on merits. Ferber
v. Brueckl, 322 Mo. 892, 17 S.W.2d 524, 527.
VOLUNTARY EXPOSURE TO UNNECESSARY
DANGER. An intentional act which reasonable
and ordinary prudence would pronounce danger-
ous. Archibald v. Order of United Commercial
Travelers, 117 Me. 418, 104 A. 792, 793; Federal
Say . & Ins. Co. v. Rager, 75 Ind.App. 295, 128 N.E.
773, 774. Intentional exposure to unnecessary
danger, implying a conscious knowledge of the
danger. Empire Life Ins. Co. v. Allen, 111 Ga.
413, 81 S.E. 120, 122. The voluntary doing of an
act which is not necessary to be done, but which
requires exposure to known danger to which one
would not be exposed if unnecessary act is not
done. Landau v. Travelers' Ins. Co., 315 Mo. 760,
287 S.W. 346, 351. The term implies a conscious,
intentional exposure, something of which one is
conscious but willing to take the risk.
VOLUNTARY IGNORANCE. This exists where a
party might, by taking reasonable pains, have ac-
quired the necessary knowledge, but has neglect-
ed to do so.
VOLUNTARY JURISDICTION. In English law.
A jurisdiction exercised by certain ecclesiastical
courts, in matters where there is no opposition.
3 B1.Comm. 66. The opposite of contentious juris-
diction, (q. v.).  In Scotch law. One exercised
in matters admitting of no opposition or question,
and therefore cognizable by any judge, and in
any place, and on any lawful day. Bell.
VOLUNTAS. Lat. Properly, volition, purpose, or
intention, or a design or the feeling or impulse
which prompts the commission of an act; but in
old English law the term was often used to denote
a will, that is, the last will and testament of a
decedent, more properly called testamentum.
VOLUNTAS DONATORIS IN CHARTA DONI
SUI MANIFESTE EXPRESSA OBSERVETUR.
Co.Litt. 21. The will of the donor manifestly ex-
pressed in his deed of gift is to be observed.
VOLUNTAS EST JUSTA SENTENTIA DE EO
QUOD QUIS POST MORTEM SUAM FIERI VE-
LIT. A will is an exact opinion or determination
concerning that which each one wishes to be done
after his death.
VOLUNTAS ET PROPOSITUM DISTINGUUNT
MALEFICIA. The will and the proposed end
distinguish crimes. Bract. fols. 2b, 136b.
VOLUNTAS FACIT QUOD IN TESTAMENTO
SCRIPTUM VALEAT. Dig. 30, 1, 12, 3. It is in-
tention which gives effect to the wording of a
will.
VOLUNTAS IN DELICTIS, NON EXITUS SPEC-
TATUR. 2 Inst. 57. In crimes, the will, and not
the consequence, is looked to.
VOLUNTAS REPUTATUR PRO FACTO. The
intention is to be taken for the deed. 3 Inst. 69;
Broom, Max. 311.
VOLUNTAS TESTATORIS EST AMBULATORIA
USQUE AD EXTREMUM VITAE EXITUM. 4
Coke, 61. The will of a testator is ambulatory
until the latest moment of life.
VOLUNTAS TESTATORIS HABET INTERPRE-
TATIONEM LATAM ET BENIGNAM. Jenk.
Cent. 260. The intention of a testator has a broad
and benignant interpretation.
VOLUNTAS ULTIMA TESTATORIS EST PER-
IMPLENDA SECUNDUM VERAM INTENTION-
EM SUAM. Co.Litt. 322. The last will of the
testator is to be fulfilled according to his true in-
tention.
VOLUNTEER. A person who gives his services
without any express or implied promise of remu-
neration. Chicago & E. I. R. Co. v. Argo, 82 Ill.
App. 667. One who intrudes himself into a matter
which does not concern him, or one who pays the
debt of another without request, when he is not
legally or morally bound to do so, and when he
has no interest to protect in making such pay-
ment. Missouri, K. & T. Ry. Co. of Texas v. Hood
(Tex.Civ.App.) 172 S.W. 1120. See Irvine v. An-
gus, 35 C.C.A. 501, 93 F. 633; Arnold v. Green,
116 N.Y. 566, 23 N.E. 1; In re Welton's Estate,
141 Misc. 674, 253 N.Y.S. 128, 140. One who, act-
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VOLUNTEER
ing on his own initiative, pays debt of another
without invitation, compulsion, or the necessity
of self-protection. In re Farmers' & Merchants'
State Bank of Nooksack, 175 Wash. 78, 26 P.2d 631.
One who merely offers his service on his own
free will, as opposed to one who is conscripted.
Gooden v. Mitchell, 2 Terry 301, 21 A.2d 197, 202.
Also an attorney, as to any persons other than
those by whom he was retained. In re Green-
berg, 174 Misc. 182, 20 N.Y.S.2d 432, 433.
Conveyancing
One who holds a title under a voluntary con-
veyance, i. e., one made without consideration,
good or valuable, to support it.
Law of Master and Servant
The term "Volunteer" includes one who, with-
out the assent of the master and without justifica-
tion arising from a legitimate personal interest,
unnecessarily assists a servant in the performance
of the master's business. Kalmich v. White, 95
Conn. 568, 111 A. 845, 846; Goshen Furnace Cor-
poration v. Tolley's Adm'r, 134 Va. 404, 114 S.E.
728, 730.
Military Law
One who freely and voluntarily offers himself
for service in the army or navy; as distinguished
from one who is compelled to serve by draft or
conscription, and also from one entered by enlist-
ment in the standing army.
VOTE. Suffrage; the expression of his will, pref-
erence, or choice, formally manifested by a mem-
ber of a legislative or deliberative body, or of a
constituency or a body of qualified electors, in re-
gard to the decision to be made by the body as a
whole upon any proposed measure or proceeding
or in passing laws, rules or regulations, or the
selection of an officer or representative. And the
aggregate of the expressions of will or choice, thus
manifested by individuals, is called the "vote of
the body." See Maynard v. Board of Canvassers,
84 Mich. 228, 47 N.W. 756, 11 L.R.A. 332; Gillespie
v. Palmer, 20 Wis. 546; Commonwealth v. Baker,
237 Ky. 380, 35 S.W.2d 548, 549; Sawyer Stores v.
Mitchell, 103 Mont. 148, 62 P.2d 342, 348.
Casting Vote
See that title.
Cumulative Voting
See Cumulative.
Voting Trust
A term applied to the accumulation in a single
hand or in a few hands of shares of corporate
stock, belonging to several or many owners, in
trust for purpose of voting the shares in order,
thereby, to control the business of the company
through selection of directors. Manson v. Curtis,
223 N.Y. 313, 119 N.E. 559, 561, Ann.Cas.1918E,
247; Groub v. Blish, 88 Ind.App. 309, 152 N.E. 609,
611. See Voting Trust, infra.
VOTER. The word has two meanings—a person
who performs act of voting, and a person who
has the qualifications entitling him to vote. Its
meaning depends on the connections in which it
is used, and is not always equivalent to electors.
Board of Education of Oklahoma City v. Wood-
worth, 89 Okl. 192, 214 P. 1077, 1079; State v.
Williams, 100 Fla. 996, 130 So. 428, 430.
When used in apposition to or in contrast with the word
"elector," it has but one meaning. A voter in this sense
is an elector who exercises the privilege conferred upon
him by the Constitution and laws of voting. He is an
elector who does vote. State v. Williams, 100 Fla. 996, 130
So. 428, 432.
In a limited sense a voter is a person having the legal
right to vote, sometimes called a legal voter. Aczel v.
United States, C.C.A., 232 F. 652, 657; State v. Stewart, 57
Mont. 397, 188 P. 904, 907.
VOTES AND PROCEEDINGS. In the houses of
parliament the clerks at the tables make brief
entries of all that is actually done; and these
minutes, which are printed from day to day for
the use of members, are called the "votes and
proceedings of parliament." From these votes and
proceedings the journals of the house are subse-
quently prepared, by making the entries at great-
er length. Brown.
VOTING BY BALLOT. The term is used to dis-
tinguish open voting from secret . voting. The
privilege of secrecy is of the essence of "voting by
ballot." Smith & Son v. MacAulay, Vt., 196 A.
281, 283.
VOTING TRUST. One created by an agreement
between a group of the stockholders of a corpo-
ration and the trustee, or by a group of identical
agreements between individual stockholders and
a common trustee, whereby it is provided that
for a term of years, or for a period contingent
upon a certain event, or until the agreement is
terminated, control over the stock owned by such
stockholders, either for certain purposes or for all,
shall be lodged in the trustee, with or without a
reservation to the owner or persons designated by
them of the power to direct how such control
shall be used. Alderman v. Alderman, 178 S.C. 9,
181 S.E. 897, 105 A.L.R. 102. A device whereby two
or more persons, owning stock with voting pow-
ers, divorce voting rights thereof from owner-
ship, retaining to all intents and purposes the
latter in themselves and transferring the former
to trustees in whom voting rights of all depositors
in the. trust are pooled. Peyton v. William C. Pey-
ton Corporation, Del.Ch., 194 A. 106, 111.
Agreement accumulating several owners' stock in hands
of one or more persons in trust for voting purposes in
order to control corporate business and affairs. It differs
from proxy or reciprocal proxy in that it does not make
either party the other's agent. Bankers' Fire & Marine
Ins. Co. v. Sloss, 229 Ala. 26, 155 So. 371.
VOTUM. Lat. A vow or promise. Dies votorum,
the wedding day. Fleta 1. 1, c. 4.
VOUCH. To call upon; to call in to warranty;
to call upon the grantor or warrantor to defend
the title to an estate.
To vouch is to call upon, rely on, or quote as
an authority. Thus, in the old writers, to vouch
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VULGO
a case or report is to quote it as an authority.
Co.Litt. 70a.
VOUCHEE. In common recoveries, the person
who is called to warrant or defend the title is
called the "vouchee." 2 Bouv. Inst. no. 2093.
Common Vouchee
In common recoveries, the person who is
vouched to warranty. In this fictitious proceeding
the crier of the court usually performs the office
of a common vouchee. 2 Bl.Comm. 358; 2 Bouv.
Inst. n. 2093.
VOUCHER. A receipt, acquittance, or release,
which may serve as evidence of payment or dis-
charge of a debt, or to certify the correctness of
accounts. An account-book containing the acquit-
tances or receipts showing the accountant's dis-
charge of his obligations. Whitwell v. Willard, 1
Metc. (Mass.) 218. When used in connection with
disbursement of money, a written or printed in-
strument in the nature of a bill of particulars, ac-
count, receipt, or acquittance, that shows on its
face the fact, authority, and purpose of disburse..
ment. Robertson's Guardian v. Fidelity & Cas-
ualty Co. of New York, 227 Ky. 114, 12 S.W.2d 298,
300.
in Old Conveyancing
The person on whom the tenant calls to defend
the title to the land, because he warranted the
title to him at the time of the original purchase.
VOUCHER TO WARRANTY. The calling one
who has warranted lands, by the party warranted,
to come and defend the suit for him. Co.Litt.
101b.
VOX EMISSA VOLAT; LITERA SCRIPTA MA-
NET. The spoken word flies; the written letter
remains. Broom, Max. 666.
VOX SIGNATA. In Scotch practice. An emphatic
or essential word. 2 Alis.Crim.Pr. 280.
VOYAGE. In maritime law. The passing of a
vessel by sea from one place, port, or country to
another. The term is held to include the enter-
prise entered upon, and not merely the route.
Friend v. Insurance Co., 113 Mass. 326.
A voyage commences only when the vessel breaks ground
or leaves her moorings in complete readiness for sailing
and proceeding out to sea destined for her next port of
call. The Willowpool, D.C.N.Y., 12 F.Supp. 96, 100.
Foreign Voyage
A voyage to some port or place within the ter-
ritory of a foreign nation. The terminus of a
voyage determines its character. If it be within
the limits of a foreign jurisdiction, it is a foreign
voyage, and not otherwise. Taber v. United
States, 1 Story, 1, Fed.Cas.No.13,722; The Three
Brothers, 23 Fed.Cas. 1,162.
Voyage Insured
In insurance law. A transit at sea from the
terminus a quo to the terminus ad quam, in a pre-
scribed course of navigation, which is never set
out in any policy, but virtually forms parts of
all policies, and is as binding on the parties there-
to as though it were minutely detailed. 1 Arn.
Ins. 333.
Voyage Policy
See Policy of Insurance.
VRAIC. Seaweed. It is used in great quantities
by the inhabitants of Jersey and Guernsey for
manure, and also for fuel by the poorer classes.
VS. An abbreviation for versus, (against,) con-
stantly used in legal proceedings, and especially
in entitling cases.
VULGAR. Lack of cultivation or refinement.
Darnell v. State, 72 Tex.Cr.R. 271, 161 S.W. 971.
VULGARIS OPINIO EST DUPLEX, VIZ., ORTA
INTER GRAVES ET DISCRETOS, QUIE MUL-
TUM VERITATIS HABET, ET OPINIO ORTA
INTER LEVES ET VULGARES HOMINES AB-
SQUE SPECIE VERITATIS. 4 Coke 107. Com-
mon opinion is of two kinds, viz., that which
arises among grave and discreet men, which has
much truth in it, and that which arises among
light and common men, without any appearance
of truth.
VULGARIS PURGATIO. Lat. In old English
law. Common purgation; a name given to the
trial by ordeal, to distinguish it from the canoni-
cal purgation, which was by the oath of the party.
4 Bl.Comm. 342.
VULGO CONCEPTI. Lat. In the civil law. Spur-
ious children; bastards.
VULGO QU)ESITI. Lat. In the civil law. Spuri-
ous children; literally, gotten from the people;
the offspring of promiscuous cohabitation, who
are considered as having no father. Inst. 3, 4,
3; Inst. 3, 5, 4.
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W. As an abbreviation, this letter frequently
stands for "William," (king of England,) "West-
minster," "west," or "western."
W. D. An abbreviation for "Western District."
WABBLE. To vacillate or sway unsteadily from
side to side; to vacillate or show unsteadiness; to
move or move along with an irregular rocking
or staggering motion or unsteadily from one
side to the other. Meadows v. State, 186 Ga. 592,
199 S.E. 133, 135.
WACREOUR. L. Fr. A vagabond, or vagrant.
Britt. c. 29.
WADIA. A pledge. See Vadium; Fides Facta.
WADSET. In Scotch law. The old term for a
mortgage. A right by which lands or other heri-
table subjects are impignorated by the proprietor
to his creditor in security of his debt. Wadsets
are usually drawn in the form of mutual con-
tracts, in which one party sells the land, and the
other grants the right of reversion. Ersk. Inst.
2, 8, 3.
WADSETTER. In Scotch law. A creditor to
whom a wadset is made, corresponding to a mort-
gagee.
WAFTORS. Conductors of vessels at sea. Cow-
ell.
WAGA. In old English law. A weight; a meas-
ure of cheese, salt, wool, etc., containing two hun-
dred and fifty-six pounds avoirdupois. Cowell;
Spelman.
WAGE. In old English practice. To give security
for the performance of a thing. Cowell.
WAGE EARNER. Within Bankruptcy Act ex-
empting wage earners from involuntary bankrupt-
cy proceedings must have as his paramount oc-
cupation the earning of salary or wages, indicia
of wage earning being whether earner depends on
his wages for his subsistence and whether wage
earning is his paramount occupation. Bankr.Act
§§ 1(27), 4b, 11 U.S.C.A. §§ 1(27), 22(b). In re
Gainfort, D.C.Cal., 14 F.Supp. 788, 791.
WAGER. A contract by which two or more par-
ties agree that a certain sum of money or other
thing shall be paid or delivered to one of them
or that they shall gain or lose on the happening
of an uncertain event or upon the ascertainment
of a fact in dispute, where the parties have no in-
terest in the event except that arising from the
possibility of such gain or loss. H. Seay & Co.
v. Moore, Tex.Com.App., 261 S.W. 1013, 1014;
Young v. Stephenson, 82 Okl. 239, 200 P. 225, 228,
24 A.L.R. 978; Odle v. State, 139 Tex.Cr.R. 288, 139
S.W.2d 595, 597. See, also, Bet.
It was said that contract giving one party or the other
an option to carry out the transaction or not at pleasure
is not invalid as a "wager." Palmer v. Love, 18 Tenn.
App. 579, 80 S.W.2d 100, 105; but if, under guise of con-
tract of sale, real intent of both parties is merely to specu-
late in rise or fall of prices and property is not to be de-
livered, but at time fixed for delivery one party is to pay
difference between contract price and market price, trans-
action is invalid as "wager." Baucum & Kimball v. Gar-
rett Mercantile Co., 188 La. 728, 178 So. 256, 259, 260.
WAGER OF BATTEL. The trial by wager of bat-
tel was a species of trial introduced into England,
among other Norman customs, by William the
Conqueror, in which the person accused fought
with his accuser, under the apprehension that
Heaven would give the victory to him who was
in the right. 3 Bl.Comm. 337. It was abolished
by St. 59 Geo. III., c. 46.
WAGER OF LAW. In old practice. The giving of
gage or sureties by a defendant in an action of
debt that at a certain day assigned he would
make his law; that is, would take an oath in open
court that he did not owe the debt, and at the
same time bring with him eleven neighbors,
(called "compurgators,") who should avow upon
their oaths that they believed in their consciences
that he said the truth. Glanv. lib. 1, c. 9, 12;
Bract. fol. 156b; Britt. c. 27; 3 Bl.Comm. 343;
Cro.Eliz. 818.
WAGER POLICY. See Policy of Insurance.
WAGERING CONTRACT. One in which the par-
ties stipulate that they shall gain or lose, upon the
happening of an uncertain event, in which they
have no interest except that arising from the
possibility of such gain or loss. Fareira v. Gabell,
89 Pa. 89.
WAGERING GAIN. The share of each, where in-
dividuals carrying on business in partnership
make gains in wagering transactions. Jennings
v. Commissioner of Internal Revenue, C.C.A.Tex.,
110 F.2d 945, 946.
WAGES. A compensation given to a hired person
for his or her services; the compensation agreed
upon by a master to be paid to a servant, or any
other person hired to do work or business for
him. Ciarla v. Solvay Process Co., 172 N.Y.S.
426, 428, 184 App.Div. 629; Cookes v. Lymperis,
178 Mich. 299, 144 N.W. 514, 515; Phoenix Iron
Co. v. Roanoke Bridge Co., 169 N.C. 512, 86 S.E.
184, 185. Every form of remuneration payable for
a given period to an individual for personal serv-
ices, including salaries, commissions, vacation pay,
dismissal wages, bonuses and reasonable value of
board, rent, housing, lodging, payments in kind,
tips, and any other similar advantage received
from the individual's employer or directly with
respect to work for him. Ernst v. Industrial Com-
mission, 246 Wis. 205, 16 N.W.2d 867.
In a limited sense the word "wage" means pay given for
labor usually manual or mechanical at short stated inter-
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vals as distinguished from salary, but in general the word
means that which is pledged or paid for work or other
services; hire; pay. In its legal sense, the word "wages"
means the price paid for labor, reward of labor, specified
sum for a given time of service or a fixed sum for a speci-
fied piece of work. In re Hollingsworth's Estate, 37 Cal.
App.2d 432, 99 P.2d 599, 600, 602.
Maritime Law
The compensation allowed to seamen for their
services on board a vessel during a voyage.
Political Economy
The reward paid, whether in money or goods, to
human exertion, considered as a factor in the
production of wealth, for its co-operation in the
process.
"Three factors contribute to the production of
commodities,—nature, labor, and capital. Each
must have a share of the product as its reward,
and this share, if it is just, must be proportionate
to the several contributions. The share of the
natural agents is rent; the share of labor, wages;
the share of capital, interest. The clerk receives
a salary; the lawyer and doctor, fees; the manu-
facturer, profits. Salary, fees, and profits are so
many forms of wages for services rendered." De
Laveleye, Pol. Econ.
WAGON. A kind of four-wheel vehicle, especially
one used for carrying freight or merchandise.
McMullen v. Shields, 96 Mont. 191, 29 P.2d 652,
654. A vehicle moving on wheels and usually
drawn by horses. The word wagon is a generic
term and includes other species of vehicle by
whatever name they may be called. An auto-
mobile is a vehicle propelled by power generated
within itself, used to convey passengers or ma-
terials, and in a general sense is a wagon. Stryck-
er v. Richardson, 77 Pa.Super.Ct. 252, 255, but see
contra United States v. One Automobile, D.C.
Mont., 237 F. 891, 892; Whitney v. Welnitz, 153
Minn. 162, 190 N.W. 57, 28 A.L.R. 68. For "Farm
Wagon," see that title.
WAGONAGE. Money paid for carriage in a
wagon.
WAGONWAY. That part of a street ordinarily
used for the passage of vehicles within the curb
lines. Delaware, L. & W. R. Co. v. Chiara, C.C.A.
N.J., 95 F.2d 663, 666.
WAIF. Waifs are goods found, but claimed by
nobody; that of which every one waives the claim.
Also, goods stolen and waived, or thrown away by
the thief in his flight, for fear of being appre-
hended. Wharton.
Waifs are to be distinguished from bona fugi-
tiva, which are the goods of the felon himself,
which he abandons in his flight from justice.
Brown: See People v. Kaatz, 3 Parker, Cr.R.
(N.Y.) 138; Hall v. Gildersleeve, 36 N.J.L. 237.
WAINABLE. In old records. That may be plowed
or manured; tillable. Cowell; Blount.
WAINAGE. In old English law. The team and
instruments of husbandry belonging to a coun-
tryman, and especially to a villein who was re-
quired to perform agricultural services.
WAINAGIUM. What is necessary to the farmer
for the cultivation of his land. Barring. Ob.St. 12;
Magna Carta, c. 14. Instruments of husbandry. 1
Poll. & Maitl. 399.
WAIN-BOTE. In feudal and old English law.
Timber for wagons or carts.
WAITING CLERKS. Officers whose duty it for-
merly was to wait in attendance upon the court
of chancery. The office was abolished in 1842 by
St. 5 & 6 Vict. c. 103. Mozley & Whitley.
WAIVE, v. To abandon or throw away; as when
a thief, in his flight, throws aside the stolen goods,
in order to facilitate his escape, he is technically
said to waive them.
In modern law, to abandon, throw away, re-
nounce, repudiate, or surrender a claim, a privi-
lege, a right, or the opportunity to take advantage
of some defect, irregularity, or wrong. See Brig-
ham Young University v. Industrial Commission
of Utah, 74 Utah 349, 279 P. 889, 893, 65 A.L.R.
152.
A person is said to waive a benefit when he
renounces or disclaims it, and he is said to waive
a tort or injury when he abandons the remedy
which the law gives him for it. Sweet.
In order for one to "waive" a right, he must do it
knowingly and be possessed of the facts. Barnhill v. Ru-
bin, D.C.Tex., 46 F.Supp. 963, 966.
WAIVE, n. In old English law. A woman out-
lawed. The term is, as it were, the feminine of
"outlaw," the latter being always applied to a
man; "waive," to a woman. Cowell.
WAIVER. The intentional or voluntary relinquish-
ment of a known right, Lehigh Val. R. Co. v. Ins.
Co., 172 F. 364, 97 C.C.A. 62; Vermillion v. Pruden-
tial Ins. Co. of America, 230 Mo.App. 993, 93 S.W.2d
45, 51; or such conduct as warrants an inference
of the relinquishment of such right, Rand v.
Morse, C.C.A.Mo., 289 F. 339, 344; Dexter Yarn Co.
v. American Fabrics Co., 102 Conn. 529, 129 A.
527, 537; Gibbs v. Bergh, 51 S.D. 432, 214 N.W. 838,
841; or when one dispenses with the performance
of something he is entitled to exact or when one
in possession of any right, whether conferred by
law or by contract, with full knowledge of the ma-
terial facts, does or forbears to do something the
doing of which or the failure of forbearance to
do which is inconsistent with the right, or his in-
tention to rely upon it. Estoup Signs v. Frank
Lower, Inc., La.App., 10 So.2d 642, 645. The re-
nunciation, repudiation, abandonment, or surren-
der of some claim, right, privilege, or of the op-
portunity to take advantage of some defect, ir-
regularity, or wrong. Christenson v. Carleton,
37 A. 226, 69 Vt. 91; Shaw v. Spencer, 100 Mass.
395, 97 Am.Dec. 107, 1 Am.Rep. 115; Smiley v.
Barker, 28 C.C.A. 9, 83 F. 684; Boos v. Ewing, 17
Ohio 523, 49 Am.Dec. 478. A doctrine resting upon
an equitable principle, which courts of law will
recognize. Atlas Life Ins. Co. v. Schrimsher, 179
Okl. 643, 66 P.2d 944, 948. See, also, Estoppel.
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WAIVER
"Waiver" is essentially unilateral, resulting as legal
consequence from some act or conduct of party against
whom it operates, and no act of party in whose favor
it is made is necessary to complete it. Coleman Produc-
tion Credit Ass'n v. Mahan, Tex.Civ.App., 168 S.W.2d 903,
904. And may be shown by acts and conduct and some-
times by nonaction. Concrete Engineering Co. v. Grande
Bldg. Co., 230 Mo.App. 443, 86 S.W.2d 595, 608.
Waiver Is distinguished from "estoppel" in that in
"waiver" the essential element is an actual intent to aban-
don or surrender a right, while in "estoppel" such intent
is immaterial; the necessary condition being the deception
to his injury of the other party by the conduct of the one
estopped. Insurance Co. of North America v. Williams, 42
Ariz. 331, 26 P.2d 117, 119. And "estoppel," may result
though party estopped did not intend to lose any existing
rights. Boyce v. Toke Point Oyster Co., 145 Or. 114, 25
P.2d 930.
Insurance Law
Substance of doctrine of "waiver" in insurance
law is that if insurer, with knowledge of facts
which would bar existing primary liability, recog-
nizes such primary liability by treating policy as
in force, it will not thereafter be allowed to plead
such facts to avoid its primary liability. Protec-
tive Life Ins. Co. v. Cole, 230 Ala. 450, 161 So.
818, 819.
Express Waiver
The voluntary, intentional relinquishment of a
known right. Dickert v. Aetna Life Ins. Co., 176
S.C. 476, 180 S.E. 462.
Implied Waiver
A waiver is implied where one party has pur-
sued such a course of conduct with reference to
the other party as to evidence an intention to
waive his rights or the advantage to which he may
be entitled, or where the conduct pursued is incon-
sistent with any other honest intention than an
intention of such waiver, provided that the other
party concerned has been induced by such conduct
to act upon the belief that there has been a waiver,
and has incurred trouble or expense thereby. As-
tritch v. German-American Ins. Co., C.C.A.Pa., 131
F. 20, 65 C.C.A. 251; Roumage v. Insurance Co., 13
N.J.L. 124.
To make out a case of implied "waiver" of a legal right,
there must be a clear, unequivocal and decisive act of the
party showing such purpose, or acts amounting to an es-
toppel on his part. Rosenthal v. New York Life Ins. Co.,
C.C.A.Mo., 99 F.2d 578, 579.
Waiver by Election of Remedies, Doctrine of
Doctrine applies if there exist two or more co-
existing remedies between which there is right
of election, inconsistency as to such available rem-
edies, and actual bringing of action or doing some
other decisive act, with knowledge of facts, where-
by party electing indicates his choice between such
inconsistent remedies. Hertz v. Mills, D.C.Md.,
10 F.Supp. 979, 981.
Waiver of Exemption
A clause inserted in a note, bond, lease, etc.,
expressly waiving the benefit of the laws exempt-
ing limited amounts of personal property from
levy and sale on judicial process, so far as con-
cerns the enforcement of the particular debt or
obligation. Mitchell v. Coates, 47 Pa. 203; Wyman
v. Gay, 90 Me. 36, 37 A. 325, 60 Am.St.Rep. 238;
Howard B. & L. Ass'n v. Philadelphia & R. R. Co.,
102 Pa. 223.
Waiver of Immunity
A means authorized by statutes by which a wit-
ness, in advance of giving testimony or producing
evidence, may renounce the fundamental right
guaranteed to him by constitutions, that no person
shall be compelled in any criminal case to be a
witness against himself. In re Grae, 282 N.Y.
428, 26 N.E.2d 963, 966.
Waiver of Protest
An agreement by the indorser of a note or bill
to be bound in his character of indorser without
the formality of a protest in case of non-payment,
or, in the case of paper which cannot or is not
required to be protested, dispensing with the ne-
cessity of a demand and notice. First Nat. Bank v.
Falkenhan, 94 Cal. 141, 29 P. 866; Coddington v.
Davis, 1 N.Y. 190.
Waiver of Tort -
The election, by an injured party, for purposes
of redress, to treat the facts as establishing an
implied contract, which he may enforce, instead of
an injury by fraud or wrong, for the committing
of which he may demand damages, compensatory
or exemplary. Harway v. Mayor, etc., of City of
New York, 1 Hun (N.Y.) 630.
WAKEMAN. The chief magistrate of Ripon, in
Yorkshire.
WAKENING. In Scotch law. The revival of an
action. A process by which an action that has
lain over and not been insisted in for a year and
a day, and thus technically said to have "fallen
asleep," is wakened, or put in motion again. 1
Forb. Inst. pt. 4, p. 170; Ersk. Prin. 4, 1, 33.
WALAPAUZ. In old Lombardic law. The dis-
guising the head or face, with the intent of com-
mitting a theft.
WALENSIS. In old English law. A Welshman.
WALESCHERY. The being a Welshman. Spel-
man.
WALISCUS. In Saxon law. A servant, or any
ministerial officer. Cowell.
WALKERS. Foresters who have the care of a
certain space of ground assigned to them. Cowell.
WALL. An erection of stone, brick, or other ma-
terial, raised to some height, and intended for pur-
poses of security or inclosure. In law, this term
occurs in such compounds as "ancient wall," "par-
ty-wall," "division-wall," etc.
Common Wall
A party wall; one which has been built at the
common expense of the two owners whose prop-
erties are contiguous, or a wall built by one party
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WANTONNESS
in which the other has acquired a common right.
Campbell v. Mesier, 4 Johns. Ch. (N.Y.) 342, 8 Am.
Dec. 570.
WALLIA. In old English law. A wall; a sea-
wall; a mound, bank, or wall erected in marshy
districts as a protection against the sea. Spelman.
WAMPUM. Beads made of shells, used as money
by the North American Indians, and which con-
tinued current in New York as late as 1693.
WAND OF PEACE. In Scotch law. A wand or
staff carried by the messenger of a court, and
which, when deforced, (that is, hindered from
executing process,) he breaks, as a symbol of the
deforcement, and protest for remedy of law. 2
Forb.Inst. 207.
WANDER. To ramble here and there without
any certain course. Guidon' v. Wheeler, C.C.A.
Alaska, 230 F. 93, 96; Ex parte Karnstrom, 297
Mo. 384, 249 S.W. 595, 596.
WANLASS. An ancient customary tenure of
lands; i. e., to drive deer to a stand that the lord
may have a shot. Blount, Ten. 140.
WANT OF CONSIDERATION. Embraces trans-
actions or instances where no consideration was
intended to pass. In re Conrad's Estate, 333 Pa.
561, 3 A.2d 697, 699. Ranschenbach v. McDaniel's
Estate, 122 W.Va. 632, 11 S.E.2d 852, 854. For dis-
tinction between "failure of consideration" and
"want of consideration," see Failure of Considera-
tion.
WANT OF JURISDICTION. A want of authori-
ty to exercise in a particular manner a power
which the board or tribunal has, the doing of
something in excess of authority possessed.
Evans v. Superior Court in and for City and Coun-
ty of San Francisco, 14 Cal.2d 563, 96 P.2d 107,
116.
WANT OF REPAIR. As to highways, anything in
the state or condition of the highway which ren-
ders it unsafe or inconvenient for ordinary travel.
Adams v. Town of Bolton, Mass., 297 Mass. 459, 9
N.E.2d 562, 565, 111 A.L.R. 856.
WANTAGE. In marine insurance. Ullage; de-
ficiency in the contents of a cask or vessel caused
by leaking. Cory v. Boylston Fire & Marine Ins.
Co., 107 Mass. 140, 9 Am.Rep. 14.
WANTON. Reckless, heedless, malicious, charac-
terized by extreme recklessness, foolhardiness,
recklessly disregardful of the rights or safety of
others or of consequences. In re Wegner, C.C.A.
Ill., 88 F.2d 899, 902; Cover v. Hershey Transit
Co., 290 Pa. 551, 139 A. 266, 268.
WANTON ACT. One done in reckless disregard
of the rights of others, evincing a reckless indif-
ference to consequences to the life, or limb, or
health, or reputation or property rights of another,
and is more than negligence, more than gross neg-
ligence, and is such conduct as indicates a reckless
disregard of the just rights or safety of others or
of the consequences of action, equivalent in its
results to willful misconduct. Ziman v. Whitley,
110 Conn. 108, 147 A. 370, 372.
Ill will is not a necessary element of a wanton act, but
to constitute an act "wanton" party doing act or failing
to act must be conscious of his conduct and, though hav-
ing no intent to injure, must be conscious from his knowl-
edge of surrounding circumstances and conditions that his
conduct will naturally and probably result in injury.
Proud v. Adelberg, 290 Ill.App. 319, 8 N.E.2d 678, 681.
WANTON ACTS AND OMISSIONS. Those of
such character or done in such manner or under
such circumstances as to indicate that a person
of ordinary intelligence actuated by normal and
natural concern for the welfare and safety of his
fellowmen who might be affected by them could
not be guilty of them unless wholly indifferent to
their probable injurious effect or consequences.
Pupke v. Pupke, 102 Colo. 337, 79 P.2d 290, 292.
WANTON AND FURIOUS DRIVING. An of-
fence against public health, which under the stat.
24 & 25 Viet. c. 100, s. 56, is punishable as a mis-
demeanor by fine or imprisonment. In this coun-
try the offence is usually provided for by state,
county, or municipal legislation.
WANTON AND RECKLESS MISCONDUCT. Oc-
curs when a person, with no intent to cause harm,
intentionally performs an act so unreasonable and
dangerous that he knows, or should know, that it
is highly probable that harm will result. Donnelly
v. Southern Pac. Co., 18 Ca1.2d 863, 118 P.2d 465,
469, 470.
WANTON INJURY. Injury produced by con-
scious and intentional wrongful act, or omission
of known duty with reckless indifference to con-
sequences. Duke v. Gaines, 224 Ala. 519, 140 So.
600, 601. It must be predicated upon actual knowl-
edge of another's peril and a failure to take avail-
able preventative action knowing that such failure
will probably result in injury. Rainey v. State, 31
Ala.App. 271, 17 So.2d 683, 686.
WANTON MISCONDUCT. Act or failure to act,
when there is a duty to act, in reckless disregard
of rights of another, coupled with a consciousness
that injury is a probable consequence of act or
omission. Swain v. American Mut. Liability Ins.
Co., C.C.A.La., 134 F.2d 886, 887. A conduct mani-
festing disposition to perversity. Universal Con-
crete Pipe Co. v. Bassett, 130 Ohio St..567, 200 N.E.
843, 846, 119 A.L.R. 646.
WANTON NEGLIGENCE. Heedless and reckless
disregard for another's rights with consciousness
that act or omission to act may result in injury
to another. Craig v. Stagner, 159 Tenn. 511, 19
S.W.2d 234, 236.
WANTONNESS. Conscious doing of some act or
the omission of some duty with knowledge of ex-
isting conditions and consciousness that, from the
act or omission, injury will likely result to an-
other. Bedwell v. De Bolt, 221 Ind. 600, 50 N.E.2d
875, 877. First Nat. Bank V. Sanders, 227 Ala. 313,
149 So. 848, 849. Conscious failure by one charged
with a duty to exercise due care and diligence to
prevent an injury after the discovery of the peril,
or under circumstances where he is charged with
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WAPENTAKE
a knowledge of such peril, and being conscious of
the inevitable or probable results of such failure.
Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573. A
reckless or intentional disregard of the property,
rights, or safety of others, implying, actively, a
willingness to injure and disregard of the conse-
quences to others, and, passively, more than mere
negligence, that is, a conscious and intentional dis-
regard of duty. Brasington v. South Bound R.
Co., 40 S.E. 665, 62 S.C. 325, 89 Am.St.Rep. 905;
Louisville & N. R. Co. v. Webb, 12 So. 374, 97
Ala. 308; Walldren Express & Van Co. v. Krug,
291 Ill. 472, 126 N.E. 97, 98.
WAPENTAKE. In English law. A local division
of the country; the name is in use north of the
Trent to denote a hundred. The derivation of the
name is said to be from "weapon" and "take," and
indicates that the division was originally of a mili-
tary character. Cowell; Brown.
Also a hundred court.
WAR. Hostile contention by means of armed
forces, carried on between nations, states, or rul-
ers, or between parties in the same nation or state.
Gitlow v. Kiely, D.C.N.Y., 44 F.2d 227, 233. A con-
test by force between two or more nations, carried
on for any purpose or armed conflict of sovereign
powers or declared and open hostilities, or the
state of nations among whom there is an interrup-
tion of pacific relations, and a general contention
by force, authorized by the sovereign. West v.
Palmetto State Life Ins. Co., 202 S.C. 422, 25 S.E.
2d 475, 477, 478, 145 A.L.R. 1461.
"War" does not exist merely because of an armed attack
by the military forces of another nation until it is a con-
dition recognized or accepted by political authority of
government which is attacked, either through an actual
declaration of war or other acts demonstrating such posi-
tion. Savage v. Sun Life Assur. Co. of Canada, D.C.La.,
57 F.Supp. 620, 621.
Articles of War
See Article.
Civil War
An internecine war. A war carried on between
opposing masses of citizens of the same country
or nation. Before the declaration of independence,
the war between Great Britain and the United
Colonies was a civil war; but instantly on that
event the war changed its nature, and became a
public war between independent states. Hubbard
v. Exp. Co., 10 R.I. 244; Brown v. Hiatt, 4 F.Cas.
387; Prize Cases, 2 Black, 667, 17 L.Ed. 459; Cen-
tral R. & B. Co. v. Ward, 37 Ga. 515.
Imperfect War
See Perfect War.
Laws of War
This term denotes a branch of public interna-
tional law, and comprises the body of rules and
principles observed by civilized nations for the
regulation of matters inherent in, or incidental to,
the conduct of a public war; such, for example, as
the relations of neutrals and belligerents, block-
ades, captures, prizes, truces and armistices, ca-
pitulations, prisoners, and declarations of war and
peace.
Mixed War
A mixed war is one which is made on one side
by public authority, and on the other by mere pri-
vate persons. People v. McLeod, 1 Hill (N.Y.)
377, 415, 37 Am.Dec. 328.
Perfect War
Where whole nation is at war with another
whole nation, but when the hostilities are limited
as respects places, persons, and things, the war
is termed "imperfect war." Bas v. Tingy, 4 Dall.
37, 40, 1 L.Ed. 731.
Private War
One between private persons, lawfully exerted
by way of defense, but otherwise unknown in
civil society. People v. McLeod, 25 Wend. (N.Y.)
576, 37 Am.Dec. 328.
Public War
Every contention by force, between two na-
tions, in external matters, under the authority of
their respective governments. Prize Cases, 2
Black, 666, 17 L.Ed. 459; People v. McLeod, 25
Wend. (N.Y.) 483, 37 Am.Dec. 328.
Solemn War
A war made in form by public declaration; a
war solemnly declared by one state against an-
other. Bas v. Tingy, 4 Dall. 37, 40, 1 L.Ed. 731.
War Office
In England. A department of state from which
the sovereign issues orders to his forces. Whar-
ton.
WAR POWER of federal government is the power
to wage war successfully. Brown v. Wright, C.
C.A.W.Va., 137 F.2d 484, 489; United States v.
Maviglia, D.C.N.J., 52 F.Supp. 946, 947. It em-
braces every aspect of national defense, including
protection of war materials as well as members
of armed forces from injury and danger. Schuel-
ler v. Drum, D.C.Pa., 51 F.Supp. 383, 387; but
direct interference with liberty and property and
abridgement of constitutional guaranties of free-
dom can be justified under the "war power" only
where the danger to the government is real, im-
pending and imminent. Schueller v. Drum, D.C.
Pa., 51 F.Supp. 383, 387.
WARABI. Dried wild ferns from Japan, used as
a vegetable in a manner similar to spinach. Nip-
pon Co. v. U. S., 12 Ct.Cust.App. 548, 549.
WARD. Guarding; care; charge; as, the ward
of a castle; so in the phrase "watch and ward."
A division in the city of London committed to
the special ward (guardianship) of an alderman.
A territorial division is adopted in most Ameri-
can cities by which the municipality is separated
into a number of precincts or districts called.
"wards" for purposes of police, sanitary regula-
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tions, prevention of fires, elections, etc. See State
ex rel. Witkowski v. Gora, 195 Wis. 515, 218 N.W.
837, 839.
A corridor, room, or other division of a prison,
hospital, or asylum.
A person, especially an infant, placed by author-
ity of law under the care of a guardian.
Ward-corn. In old English law. The duty of
keeping watch and ward, with a horn to blow
upon any occasion of surprise. 1 Mon.Ang. 976.
Ward•fegh. Sax. In old records. Ward-fee;
the value of a ward, or the money paid to the
lord for his redemption from wardship. Blount.
Ward-holding. In old Scotch law. Tenure by
military service; the proper feudal tenure of Scot-
land. Abolished by St. 20 Geo. II. c. 50. Ersk.
Prin. 2, 4, 1.
Ward-in-chancery. An infant who is under the
superintendence of the chancellor.
Ward-mote. In English law. A court kept in
every ward in London, commonly called the "ward-
mote court," or "inquest." Cowell.
Ward-patient. One who pays for his hospital
care but receives free of charge medical and sur-
gical care from members of the hospital staff.
Sheridan v. Quarrier, 127 Conn. 279, 16 A.2d 479,
480.
Ward-penny. In old English law. Money paid
to the sheriff or castellains, for the duty of watch-
ing and warding a castle. Spelman.
Ward-staff. In old records. A constable's or
watchman's staff. Cowell.
Ward-wit. In old English law. Immunity or
exemption from the duty or service of ward, or
from contributing to such service. Spelman.
Exemption from amercement for not finding a
man to do ward. Fleta, lib. 1, c. 47, § 16.
Wardage. Money paid and contributed to watch
and ward. Domesday.
Wards of admiralty. Seamen are sometimes
thus designated, because, in view of their general
improvidence and rashness, and though they are
not technically incapable of contracting, their
contracts are treated like those of fiduciaries and
beneficiaries, and if there is any inequality in
terms or any disproportion in the bargain or any
sacrifice of rights of seamen which are not com-
pensated by extraordinary benefits, the judicial
interpretation of the transaction is that the bar-
gain is unjust and that pro tanto, the bargain
ought to be set aside as inequitable. See Garrett
v. Moore-McCormack Co., Pa., 63 S.Ct. 246, 251, 317
U.S. 239, 87 L.Ed. 239.
Wards of court. Infants and persons of unsound
mind. Davis' Committee v. Loney, 290 Ky. 644,
162 S.W.2d 189, 190. Their rights must be guarded
jealously. Montgomery v. Erie R. Co., C.C.A.N.J.,
97 F.2d 289, 292.
Wardship. In military tenures, the right of the
lord to have custody, as guardian, of the body and
lands of the infant heir, without any account of
profits, until he was twenty-one or she sixteen.
In socage the guardian was accountable for prof-
its; and he was not the lord, but the nearest rela-
tive to whom the inheritance could not descend,
and the wardship ceased at fourteen. In copy-
holds, the lord was the guardian, but was perhaps
accountable for profits. Stim. Gloss. See 2 Bl.
Comm. 67.
Wardship in chivalry. An incident to the tenure
of knight-service.
Wardship in copyholds. The lord is guardian of
his infant tenant by special custom.
WARDA. L. Lat.
In old English law. Ward; guard; protection;
keeping; custody. Spelman.
A ward; an infant under wardship. Spelman.
In old Scotch law. An award; the judgment of
a court.
WARDEN. A guardian; a keeper. This is the
name given to various officers.
WARDEN OF THE CINQUE PORTS. In English
law. The title of the governor or presiding offi-
cer of the Cinque Ports, (q. v.).
WARDS AND LIVERIES. In English law. The
title of a court of record, established in the reign
of Henry VIII. See Court of Wards and Liveries.
WARECTARE. L. Lat. In old English law. To
fallow ground; or plow up land (designed for
wheat) in the spring, in order to let it lie fallow
for the better improvement. Fleta, lib. 2, c. 33;
Cowell.
WAREHOUSE. A place adapted to the reception
and storage of goods and merchandise. State v.
Huffman, 136 Mo. 58, 37 S.W. 797; Owen v. Boyle,
22 Me. 47; Carter v. Bauman, C.C.A.Cal., 19 F.2d
855, 856. The term may include any structure
used to hold goods, stores or wares temporarily
or for a length of time. In re Miller Land & Live-
stock Co., D.C.Mont., 56 F.Supp. 34, 35.
WAREHOUSE BOOK. A book used by merchants
to contain an account of the quantities of goods
received, shipped, and remaining in stock.
WAREHOUSE RECEIPT. A receipt given by a
warehouseman for goods received by him on stor-
age in his warehouse. Merchants' Warehouse
Co. v. McClain, C.C.Pa., 112 F. 789; Collins v. Ralli,
20 Hun (N.Y.) 255; Vannett v. Reilly-Herz Auto-
mobile Co., 42 N.D. 607, 173 N.W. 466, 467. It is
evidence of title to goods thereby represented.
Woldson v. Davenport Mill & Elevator Co., 169
Wash. 298, 13 P.2d 478, 480.
WAREHOUSE SYSTEM. A system of public
stores or warehouses, established or authorized by
law, called "bonded warehouses," in which an im-
porter may deposit goods imported, in the custody
of the revenue officers, paying storage, but not
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being required to pay the customs duties until the
goods are finally removed for consumption in the
home market, and with the privilege of withdraw-
ing the goods from store for the purpose of re-ex-
portation without paying any duties.
WAREHOUSEMAN. One engaged in business of
receiving and storing goods of others for compen-
sation or profit; person who receives goods and
merchandise to be stored in his warehouse for
hire; one who, as a business and for hire, keeps
and stores goods of others. State ex rel. and for
Use and Benefit of Cawrse v. American Surety Co.
of New York, 148 Or. 1, 35 P.2d 487, 491.
The business is public or private as it may be conducted
for storage of goods of general public or for those of cer-
tain persons. Tobacco Growers' Co-op. Ass'n v. Danville
Warehouse Co., 144 Va. 456, 132 S.E. 482, 486; State, to
Use of Hubbard & Moffitt Commission Co. v. Cochrane, 264
Mo. 581, 175 S.W. 599, 600.
WARNING. A pointing out of danger. Also a
protest against incurring it. Keller v. Banks, 130
Me. 397, 156 A. 817, 821.
The purpose of a "warning" is to apprise a party of the
existence of danger of which he is not aware to enable him
to protect himself against it, and where the party is aware
of the danger, the warning will serve no useful purpose
and is unnecessary, and there is no duty to warn against
risks which are open and obvious. Wiseman v. Northern
Pac. Ry. Co., 214 Minn. 101, 7 N.W.2d 672, 675.
Under the old practice of the English court of
probate, was a notice given by a registrar of the
principal registry to a person who had entered a
caveat, warning him, within six days after serv-
ice, to enter an appearance to the caveat in the
principal registry, and to set forth his interest,
concluding with a notice that in default of his
doing so the court would proceed to do all such
acts, matters, and things as should be necessary.
By the rules under the judicature acts, a writ of
summons has been substituted for a warning.
Sweet.
WARNISTURA. In old records. Garniture; fur-
niture; provision. Cowell.
WARNOTH. In old English law. An ancient
custom, whereby, if any tenant holding of the
Castle of Dover failed in paying his rent at the
day, he should forfeit double, and, for the second
failure, treble, etc. Cowell.
WARP. A rope attached to some fixed point, used
for moving a ship. Pub. St. Mass. 1882, p. 1297.
WARRANDICE. In Scotch law. Warranty; a
clause in a charter or deed by which the grantor
obliges himself that the right conveyed shall be
effectual to the receiver. Ersk. Prin. 2, 3, 11. A
clause whereby the grantor of a charter obliges
himself to warrant or make good the thing grant-
ed to the receiver. 1 Forb. Inst. pt. 2, p. 113.
Absolute Warrandice
A warranting or assuring of property against all
mankind. It is, in effect, a covenant of title.
Real Warrandice
An infeoffment of one tenament given in securi-
ty of another.
Simple Warrandice
An obligation to warrant or secure from all sub-
sequent or future deeds of the grantor. A simple
warranty against the grantor's own acts. Whi-
shaw.
WARRANT, v.
In contracts. To engage or promise that a
certain fact or state of facts, in relation to the
subject-matter, is, or shall be, as it is represented
to be.
In conveyancing. To assure the title to prop-
erty sold, by an express covenant to that effect
in the deed of conveyance. To stipulate by an
express covenant that the title of a grantee shall
be good, and his possession undisturbed.
WARRANT, n. 1. A writ or precept from a com-
petent authority in pursuance of law, directing
the doing of an act, and addressed to an officer or
person competent to do the act, and affording
him protection from damage, if he does it. Peo-
ple v. Wood, 71 N.Y. 376.
2. Particularly, a writ or precept issued by a
magistrate, justice, or other competent authority,
addressed to a sheriff, constable, or other officer,
requiring him to arrest the body of a person there-
in named, and bring him before the magistrate
or court, to answer, or to be examined, touching
some offense which he is charged with having
committed. See People v. Baxter, City Ct., 32
N.Y.S.2d 325, 327. See, also, Bench-Warrant;
Search-Warrant.
3. An order by which the drawer authorizes
one person to pay a particular sum of money.
Shawnee County v. Carter, 2 Kan. 130.
4. An authority issued to a collector of taxes,
empowering him to collect the taxes extended on
the assessment roll, and to make distress and
sale of goods or land in default of payment.
5. A command of a council, board, or official
whose duty it is to pass upon the validity and
determine the amount of a claim against the mu-
nicipality, to the treasurer to pay money out of
any funds in the municipal treasury, which are or
may become available for the purpose specified,
to a designated person whose claim therefor has
been duly adjusted and allowed. Roe v. Roosevelt
Water Conservation Dist., 41 Ariz. 197, 16 P.2d 967,
970; State v. State Board of Examiners, 74 Mont
1, 238 P. 316, 328.
A "warrant" differs from a "bond" in that a bond is a
"negotiable instrument", whereas a warrant is nonnego-
tiable and is subject at all times to the defenses it would
be were it in the hands of the original payee, which is
not the case with a negotiable bond. Adams v. McGill,
Tex.Clv.App., 146 S.W.2d 332, 334.
6. In England, a dividend warrant or coupon.
See Coupons.
Bench warrant. See Bench.
Death warrant. A warrant issued generally by
the chief executive authority of a state, directed
to the sheriff or other proper local officer or the
warden of a jail, commanding him at a certain
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time to proceed to carry into execution a sentence
of death imposed by the court upon a convicted
criminal.
Distress warrant. See Distress.
Dividend warrant. In England, a coupon. See
Coupons.
General warrant. A process which formerly is-
sued from the state secretary's office in England
to take up (without naming any persons) the
author, printer, and publisher of such obscene and
seditious libels as were specified in it. It was
declared illegal and void for uncertainty by a vote
of the house of commons on the 22d April, 1766.
Wharton.
Land warrant. See that title.
Landlord's warrant. See Landlord.
Search warrant. See that title.
Warrant creditor. See Creditor.
Warrant in bankruptcy. A warrant issued, upon
an adjudication in bankruptcy, directing the mar-
shal to take possession of the bankrupt's property,
notify creditors, etc.
Warrant of arrest. See Arrest.
Warrant of attorney. In practice. An instru-
ment in writing, addressed to one or more attor-
neys therein named, authorizing them, generally,
to appear in any court, or in some specified court,
on behalf of the person giving it, and to confess
judgment in favor of some particular person there-
in named, in an action of debt. It usually contains
a stipulation not to bring any writ of error, or
file a bill in equity, so as to delay him. 2 Burrill,
Pr. 239; Treat v. Tolman, 51 C.C.A. 522, 113 F.
892. Such writing usually being given as securi-
ty for obligation on which judgment was author-
ized, and in such procedure service of process was
not essential. Bonnett-Brown Corporation v. Co-
ble, 195 N.C. 491, 142 S.E. 772, 774.
Warrant of commitment. A written authority
committing a person to custody.
Warrant of merchantability. Warranty that
goods are reasonably fit for general purpose for
which sold. Sperry Flour Co. v. De Moss, 141 Or.
440, 18 P.2d 242, 243, 90 A.L.R. 406.
Warrant officers. In the United States army,
navy, coast and geodetic survey, coast guard,
marine corps and air force, these are a class of
inferior officers who hold their rank by virtue of
a written warrant instead of a commission.
Warrant to sue and defend. In old practice. A
special warrant from the crown, authorizing a
party to appoint an attorney to sue or defend for
him. 3 Bl.Comm. 25. A special authority given
by a party to his attorney, to commence a suit,
or to appear and defend a suit, in his behalf.
These warrants are now disused, though formal
entries of them upon the record were long retained
in practice. 1 Burrill, Pr. 39.
WARRANTEE. A person to whom a warranty
is made.
WARRANTIA CHARTLE. In old practice. War-
ranty of charter. A writ which lay for one who,
being enfeoffed of lands or tenements, with a
clause of warranty, was afterwards impleaded in
an assize or other action in which he could not
vouch to warranty. In such case, it might be
brought against the warrantor, to compel him to
assist the tenant with a good plea or defense, or
else to render damages and the value of the land,
if recovered against the tenant. Cowell; 3 BL
Comm. 300.
WARRANTIA CUSTODUE. An old English writ,
which lay for him who was challenged to be a
ward to another, in respect to land said to be hold-
en by knight•service; which land, when it was
bought by the ancestors of the ward, was war-
ranted free from such thraldom. The writ lay
against the warrantor and his heirs. Cowell.
WARRANTIA DIEI. A writ which lay for a man
who, having had a day assigned him personally to
appear in court in any action in which he was
sued, was in the mean time, by commandment,
employed in the king's service, so that he could
not come at the day assigned. It was directed
to the justices that they might not record him in
default for that day. Cowell.
WARRANTIZARE. In old conveyancing. To
warrant; to bind one's self, by covenant in a deed
of conveyance, to defend the grantee in his title
and possession.
WARRANTIZARE EST DEFENDERE ET AC-
QUIETARE TENENTEM, QUI WARRANTUM
VOCAVIT, IN SEISINA SUA; ET TENENS DE
RE WARRANTI EXCAMBIUM HABEBIT AD
VALENTIAM. Co.Litt. 365. To warrant is to de-
fend and insure in peace the tenant, who calls
for warranty, in his seisin; and the tenant in
warranty will have an exchange in proportion to
its value.
WARRANTOR. One who makes a warranty.
Shep. Touch. 181.
WARRANTOR POTEST EXCIPERE QUOD
QUERENS NON TENET TERRAM DE QUA
PETIT WARRANTIAM, ET QUOD DONUM
FUIT INSUFFICIENS. Hob. 21. A warrantor
may object that the complainant does not hold the
land of which he seeks the warranty, and that
the gift was insufficient.
WARRANTY. A promise that a proposition of
fact is true. The Fred Smartley, Jr., C.C.A.Va.,
108 F.2d 603, 606.
Real Property Law
A real covenant by the grantor of lands, for
himself and his heirs, to warrant and defend the
title and possession of the estate granted, to the
grantee and his heirs, whereby, either upon vouch-
er, or judgment in the writ of warrantia chartce,
and the eviction of the grantee by paramount
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title, the grantor was bound to recompense him
with other lands of equal value. Co.Litt. 365a.
See "Covenant."
Sales of Personal Property
A statement or representation made by the sell-
er of goods, contemporaneously with and as a part
of the contract of sale, though collateral to the
express object of it, having reference to the char-
acter, quality, or title of the goods, by which he
promises or undertakes that certain facts are or
shall be as he then represents them. Schley v.
Zalis, 172 Md. 336, 191 A. 563, 564; Great Atlantic
& Pacific Tea Co. v. Walker, Tex.Civ.App., 104 S.
W.2d 627, 632. A promise or agreement by seller
that article sold has certain qualities or that seller
has good title thereto. Chanin v. Chevrolet Motor
Co., D.C.Ill., 15 F.Supp. 57, 58. A statement of
fact respecting the quality or character of goods
sold, made by the seller to induce the sale, and
relied on by the buyer. Hercules Powder Co. v.
Rich, C.C.A.Ark., 3 F.2d 12, 14; Van Horn v.
Stautz, 297 Ill. 530, 131 N.E. 153, 154.
"Warranty" in sale of personalty ordinarily applies only
between seller and immediate buyer, and does not give
such buyer right to sue original seller. Timberland Lum-
ber Co. v. Climax Mfg. Co., C.C.A.Pa., 61 F.2d 391, 392.
Contracts
An undertaking or stipulation, in writing, or
verbally, that a certain fact in relation to the
subject of a contract is or shall be as it is stated or
promised to be. United Iron Works Co. v. Henry-
etta Coal & Mining Co., 62 Okl. 99, 162 P. 209, 210;
Hurley-Mason Co. v. Stebbins, Walker & Spinning,
79 Wash. 366, 140 P. 381, 384, L.R.A.1915B, 1131,
Ann.Cas.1916A, 948. An express or implied state-
ment of something undertaken as part of contract
but collateral to its object. Pauls Valley Milling
Co. v. Gabbert, 182 Okl. 500, 78 P.2d 685, 686.
A warranty differs from a representation in that a war-
ranty must always be given contemporaneously with, and
as part of, the contract; whereas a representation precedes
and induces to the contract. And, while that is their
difference in nature, their difference in consequence or ef-
fect is this: that, upon breach of warranty, (or false war-
ranty,) the contract remains binding, and damages only
are recoverable for the breach; whereas, upon a false rep-
resentation, the defrauded party may elect to avoid the
contract, and recover the entire price paid. Brown. And
see Griswold v. Morrison, 53 Cal.App. 93, 200 P. 62, 65.
The same transaction cannot be characterized as a war-
ranty and a fraud at the same time. A warranty rests
upon contract, while fraud, or fraudulent representations
have no element of contract in them, but are essentially
a tort. When judges or law-writers speak of a fraudulent
warranty, the language is neither accurate nor perspicu-
ous. If there is a breach of warranty, it cannot be said
that the warranty was fraudulent, with any more propriety
than any other contract can be said to have been fraud-
ulent, because there has been a breach of it. On the other
hand, to speak of a false representation as a contract or
warranty, or as tending to prove a contract or warranty,
is a perversion of language and of correct ideas. Rose v.
Hurley, 39 Ind. 81; Boysen v. Petersen, 203 Iowa 1073, 211
N.W. 894, 895.
Insurance
A "warranty" in the law of insurance consists
of a statement by insured upon the literal truth
of which the validity of the contract depends.
Braddock, by Smith, v. Pacific Woodmen Life
Ass'n, 89 Utah 75, 54 P.2d 1189, 1192. Statement,
made in insurance contract by insured, which is
susceptible of no construction other than that par-
ties mutually intended that policy should not be
binding, unless such statement be literally true.
Brotherhood of Railroad Trainmen v. Wood, Tex.
Civ.App., 79 S.W.2d 665, 668.
It is in the nature of a condition precedent and must
appear on face of policy; or, if on another part of it, or
on a paper physically attached to it, it must appear that
the statements were intended to form part of policy; or,
if on another paper, they must be so referred to in policy
as clearly to indicate that the parties intended them to
form a part of it, but it is not necessary that the state-
ments in an application be set forth in the policy. City
Bank & Trust Co. v. Commercial Casualty Co., La.App.,
176 So. 27.
Warranty may be either "affirmative" or "promissory."
The former affirms the existence of a fact at the time the
policy is entered into, while the latter requires that some-
thing be done or not done after the policy has taken effect.
Sentinel Life Ins. Co. v. Blackmer, C.C.A.Colo., 77 F.2d
347, 350.
General
Affirmative warranty. In the law of insurance,
warranties may be either affirmative or promis-
sory. Affirmative warranties may be either ex-
press or implied, but they usually consist of posi-
tive representations in the policy of the existence
of some fact or state of things at the time, or pre-
vious to the time, of the making of the policy;
they are, in general, conditions precedent, and if
untrue, whether material to the risk or not, the
policy does not attach, as it is not the contract of
the insurer. Maupin v. Insurance Co., 53 W.Va.
557, 45 S.E. 1003; Orient Ins. Co. v. Van Zandt-
Bruce Drug Co., 50 Okl. 558, 151 P. 323, 324. See,
also, Insurance.
Collateral warranty. Existed when the heir's ti-
tle was not derived from the warranting ancestor,
and yet it barred the heir from claiming the land
by any collateral title, upon the presumption that
he might thereafter have assets by descent from
or through the ancestor; and it imposed upon
him the obligation of giving the warrantee other
lands in case of eviction, provided he had assets.
2 B1.Com. 301.
Continuing warranty. One which applies to the
whole period during which the contract is in force;
e. g., an undertaking in a charter-party that a
vessel shall continue to be of the same class that
she was at the time the charter-party was made.
Covenant of warranty. See Covenant.
Executory warranties. See Executory Warran-
ties.
Express warranty. In contracts and sales, one
created by the apt and explicit statements of the
seller or person to be bound. Borrekins v. Bevan,
3 Rawle (Pa.) 36, 23 Am.Dec. 85; White v. Stelloh,
74 Wis. 435, 43 N.W. 99; Hausken v. Hodson-Fee-
naughty Co., 109 Wash. 606, 187 P. 319, 321. In
the law of insurance, an agreement expressed in
a policy, whereby the assured stipulates that cer-
tain facts relating to the risk are or shall be true,
or certain acts relating to the same subject have
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been or shall be done. 1 Phil.Ins. (4th Ed.) p.
425; Petit v. German Ins. Co., C.C.W.Va., 98 F.
802; Insurance Co. v. Morgan, 90 Va. 290, 18 S.E.
191.
General warranty. The name of a covenant of
warranty inserted in deeds, by which the grantor
binds himself, his heirs, etc., to "warrant and for-
ever defend" to the grantee, his heirs, etc., the
title thereby conveyed, against the lawful claims
of all persons whatsoever. Where the warranty
is only against the claims of persons claiming "by,
through, or under" the grantor or his heirs, it is
called a "special warranty."
Implied warranty. When the law derives it by
implication or inference from the nature of the
transaction or the relative situation or circum-
stances of the parties. Great Atlantic & Pacific
Tea Co. v. Walker, Tex.Civ.App., 104 S.W.2d 627,
632.
Lineal warranty. In old conveyancing, the kind
of warranty which existed when the heir derived
title to the land warranted either from or through
the ancestor who made the warranty.
Personal warranty. One available in personal
actions, and arising from the obligation which one
has contracted to pay the whole or part of a debt
due by another to a third person. Flanders v.
Seelye, 105 U.S. 718, 26 L.Ed. 1217.
Promissory warranty. In the law of insurance,
a warranty which requires the performance or
omission of certain things or the existence of cer-
tain facts after the beginning of the contract of
insurance and during its continuance, and the
breach of which will avoid the policy. See King v.
Relief Ass'n, 35 App.Div. 58, 54 N.Y.S. 1057; Mc-
Kenzie v. Insurance Co., 112 Cal. 548, 44 P. 922.
Special warranty. A clause of warranty in-
serted in a deed of lands, by which the grantor
covenants, for himself and his heirs, to "warrant
and forever defend" the title to the same, to the
grantee and his heirs, etc., against all persons
claiming "by, through, or under" the grantor or
his heirs. If the warranty is against the claims
of all persons whatsoever, it is called a "general"
warranty.
Warranty deed. One which contains a covenant
of warranty.
Warranty of fitness. Warranty by seller that
goods sold are suitable for special purpose of
buyer. Sperry Flour Co. v. De Moss, 141 Or. 440,
18 P.2d 242, 243, 90 A.L.R. 406.
Warranty, voucher to. In old practice. The call-
ing a warrantor into court by the party warranted,
(when tenant in a real action brought for recovery
of such lands,) to defend the suit for him. Co.Litt.
101b.
WARREN. A term in English law for a place in
which birds, fishes, or wild beasts are kept.
A franchise or privilege, either by prescription
or grant from the king, to keep beasts and fowls
of warren, which are hares, coneys, partridges,
pheasants, etc.
Also any place to which such privilege extends.
Mozley & Whiteley.
Free Warren
A franchise for the preserving and custody of
beasts and fowls of warren. 2 Bl.Comm. 39, 417;
Co.Litt. 233. This franchise gave the grantee
sole right of killing, so far as his warren extended,
on condition of excluding other persons. 2 Bl.
Comm. 39.
WARSCOT. In Saxon law. A customary or us-
ual tribute or contribution towards armor, or the
arming of the forces.
WARTH. In old English law. A customary pay-
ment, supposed to be the same with ward-penny.
Spelman; Blount.
WASH. A shallow part of a river or arm of the
sea.
The sandy, rocky, gravelly, boulder-bestrewn
part of a river bottom deposited on level land near
mouth of a canyon representing rocks and gravel
washed down by a mountain stream. Haack v.
San Fernando Mission Land Co., 177 Cal. 140, 169
P. 1021, 1022.
A fermented wort from which spirit is distilled.
Neal v. State, 154 Ark. 324, 242 S.W. 578, 579;
Pack v. State, 116 Or. 416, 241 P. 390, 392.
WASH BANK. A bank composed of such sub-
stance that it is liable to be washed away by the
action of the water thereon, so as to become un-
safe to travelers on highway. Kerr v. Bougher,
16 Ohio App. 434, 437.
WASH SALE or WASHED SALE. In the lan-
guage of the stock exchange, this term is applied
to the operation of simultaneously buying and
selling the same stock. In re Wettengel, C.C.A.3,
238 F. 798, 799. Also a fictitious kind of sale, dis-
allowed on stock and other exchanges, in which a
broker who has received orders from one person to
buy and from another person to sell a particular
amount or quantity of some particular stock or
commodity simply transfers the stock or commodi-
ty from one principal to the other and pockets the
difference, instead of executing both orders sepa-
rately to the best advantage in each case, as is
required by the rules of the different exchanges.
U. S. v. Keough, D.C.Nev., 48 F.2d 246, 252.
WASHING–HORN. The sounding of a horn for
washing before dinner. The custom was formerly
observed in the Temple.
WASHINGTON, TREATY OF. A treaty signed
on May 8, 1871, between Great Britain and the
United States of America, with reference to cer-
tain differences arising out of the war between the
northern and southern states of the Union, the
Canadian fisheries, and other matters. Wharton.
WASHOUT SIGNAL. In railroad parlance. Emer-cTency signal meaning to stop immediately. Stin-
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son v. Aluminum Co. of America, C.C.A.Tenn.,
141 F.2d 682, 684.
WASTE. An abuse or destructive use of property
by one in rightful possession. Halifax Drainage
Dist. of Volusia County v. Gleaton, 137 Fla. 397,
188 So. 374, 379. Spoil or destruction, done or per-
mitted, to lands, houses, gardens, trees, or other
corporeal hereditaments, by the tenant thereof, to
the prejudice of the heir, or of him in reversion
or remainder. 2 Bl.Comm. 281. Camden Trust
Co. v. Handle, 132 N.J.Eq. 97, 26 A.2d 865, 869, 154
A.L.R. 602. A destruction or material alteration
or deterioration of the freehold, or of the improve-
ments forming a material part thereof, by any
person rightfully in possession, but who has not
the fee title or the full estate. Hayman v. Rownd,
82 Neb. 598, 118 N.W. 328, 45 L.R.A.(N.S.) 623;
Thomas v. Thomas, 166 N.C. 627, 82 S.E. 1032,
1033, L.R.A.1915B, 219. An unreasonable or im-
proper use, abuse, mismanagement, or omission
of duty touching real estate by one rightfully
in possession, which results in its substantial
injury. Thayer v. Shorey, 287 Mass. 76, 191 N.E.
435, 437, 94 A.L.R. 307. Any unlawful act or
omission of duty on the part of the tenant which
results in permanent injury to the inheritance.
It is the violation of an obligation to treat the
premises in such manner that no harm be done
to them, and that the estate may revert to those
having an underlying interest, undeteriorated by
any willful or negligent acts. Camden Trust Co.
v. Handle, 130 N.J.Eq. 125, 21 A.2d 354, 358.
The early English doctrine was to the effect that any-
thing which changed the character or nature of the land,
notwithstanding the fact that it was an improvement
thereto, constituted "waste." Whitehead v. Whitehead,
Del.Orph., 181 A. 684, 685.
The primary distinction between "waste" and "trespass"
is that in waste the injury is done by one rightfully in
possession. Camden Trust Co. v. Handle, 132 N.J.Eq. 97,
26 A.2d 865, 867, 869.
Old English Criminal Law
A prerogative or liberty, on the part of the
crown, of committing waste on the lands of felons,
by pulling down their houses, extirpating their
gardens, plowing their meadows, and cutting
down their woods. 4 Bl.Comm. 385.
General
Commissive waste. Active or positive waste;
waste done by acts of spoliation or destruction,
rather than by mere neglect; the same as volun-
tary waste. See infra.
Double waste. See Double.
Equitable waste. Injury to a reversion or re-
mainder in real estate, which is not recognized by
the courts of law as waste, but which equity will
interpose to prevent or remedy. Gannon v. Peter-
son, 193 Ill. 372, 62 N.E. 210, 55 L.R.A. 701; Crowe
v. Wilson, 65 Md. 479, 5 A. 427, 57 Am.Rep. 343.
Otherwise defined as an unconscientious abuse of
the privilege of non-impeachability for waste at
common law, whereby a tenant for life, without
impeachment of waste, will be restrained from
committing willful, destructive, malicious, or ex-
travagant waste, such as pulling down houses,
cutting timber of too young a growth, or trees
planted for ornament, or for shelter of premises.
Wharton.
Impeachment of waste. Liability for waste com-
mitted, or a demand or suit for compensation
for waste committed upon lands or tenements by
a tenant thereof who has no right to commit
waste. On the other hand, a tenure "without
impeachment of waste" signifies that the tenant
cannot be called to account for waste committed.
Nul waste. "No waste." The name of a plea in
an action of waste, denying the commission of
waste, and forming the general issue.
Permissive waste. That kind of waste which is
a matter of omission only, as by suffering a house
to fall for want of necessary reparations. 2 Bl.
Comm. 281; Willey v. Laraway, 64 Vt. 559, 25 A.
436; White v. Wagner, 4 Har. & J. (Md.) 391, 7
Am.Dec. 674.
Voluntary waste. Active or positive waste;
waste done or committed, in contradistinction to
that which results from mere negligence, which
is called "permissive" waste. 2 Bouv. Inst. no.
2394. "Voluntary waste" is the willful destruc-
tion or carrying away of something attached to
the freehold, and "permissive waste" is the failure
to take reasonable care of the premises. Fisher's
Ex'r v. Haney, 180 Ky. 257, 202 S.W. 495, 496. Vol-
untary or commissive waste consists of injury to
the demised premises or some part thereof, when
occasioned by some deliberate or voluntary act,
as, for instance, the pulling down of a house or
removal of floors, windows, doors, furnaces,
shelves, or other things affixed to and forming
part of the freehold. Regan v. Luthy, 11 N.Y.S.
709, 16 Daly 413. Contrasted with "permissive"
waste.
Writ of waste. See that title.
WASTE-BOOK. A book used by merchants, to
receive rough entries or memoranda of all trans-
actions in the order of their occurrence, previous
to their being posted in the journal. Otherwise
called a "blotter."
WASTE WATER. Water that is actually wasted
or not needed by the claimant thereto; water
which, after it has served the purpose of the
lawful claimant thereto, has been permitted to
run to waste or to escape; and water which from
unavoidable causes escapes from the ditches,
canals, or other works of the lawful claimants.
Rock Creek Ditch & Flume Co. v. Miller, 93 Mont.
248, 17 P.2d 1074, 1077, 89 A.L.R. 200. But water
is not "waste water" so long as it remains on the
land of the original appropriator. Barker v. Son-
ner, 135 Or. 75, 294 P. 1053, 1054.
WASTEL. A standard of quality of bread, made
of the finest white flour. Cocket bread was slight-
ly inferior in quality. The statute of 1266 men-
tions seven kinds of bread. See Assisa; Studer,
Oak Book of Southhampton, Vol. II.
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WASTING PROPERTY. Includes such property
as leasehold interests; royalties; patent rights;
interests in things the substance of which is con-
sumed, such as mines, oil and gas wells, quarries
and timber lands; interests in things which are
consumed in the using or are worn out by use,
such as machinery and farm implements. In re
Pennock's Will, 285 N.Y. 475, 35 N.E.2d 177, 178.
WASTING TRUST. A trust in which the trustee
may apply a part of the principal to make good
a deficiency of income.
WASTORS. In old statutes. A kind of thieves.
WATCH, v. To keep guard; to stand as sentinel;
to be on guard at night, for the preservation of
the peace and good order.
WATCH, n. A body of constables on duty on any
particular night.
A division of a ship's crew. At sea, the ship's
company is divided into two watches, larboard
and starboard, with a mate to command each.
O'Hara v. Luckenbach S. S. Co., 46 S.Ct. 157, 160,
269 U.S. 364, 70 L.Ed. 313. Also the division of
the day into time periods of service of the offi-
cers and crew, and, by immemorial Anglo-Saxon
maritime custom, the time period of a watch never
exceeds four hours. The Denali, C.C.A.Wash.,
105 F.2d 413, 416.
WATCH AND WARD. "Watch" denotes keeping
guard during the night; "ward," by day.
WATCHMAN. An officer in cities and towns hav-
ing duty to watch and care for inhabitants' prop-
erty; he possesses generally the common-law au-
thority of a constable to arrest on reasonable
ground to suspect felony, though without proof of
commission of felony. Harris v. Sevier, 19 La.
App. 165, 138 So. 459, 460. Also one whose serv-
ices are constant watching or patrolling of the
particular building or contiguous group of build-
ings. Bartholome v. Baltimore Fire Patrol &
Despatch Co., D.C.Md., 48 F.Supp. 98, 103.
WATER. As designating a commodity or a sub-
ject of ownership, this term has the same mean-
ing in law as in common speech; but in another
sense, and especially in the plural, it may desig-
nate a body of water, such as a river, a lake, or an
ocean, or an aggregate of such bodies of water, as
in the phrases "foreign waters," "waters of the
United States," and the like.
Water is neither land nor tenement nor susceptible of
absolute ownership. It is a movable thing and must of
necessity continue common by the law of nature. It ad-
mits only of a transient usufructuary property, and if it
escapes for a moment, the right to it is gone forever, the
qualified owner having no legal power of reclamation. It
is not capable of being sued for by the name of "water,"
nor by a calculation of its cubical or superficial measure;
but the suit must be brought for the land which lies at the
bottom covered with water. As water is not land, neither
is it a tenement, because it is not of a permanent nature,
nor the subject of absolute property. It is not in any pos-
sible sense real estate, and hence is not embraced in a
covenant of general warranty. Mitchell v. Warner, 5
Conn. 518.
Coast Waters
See that title.
Black's Law Dictionary Revised 4th Ed.-111
Developed Water
Water which is brought to the surface and made
available for use by the party claiming the water.
Mountain Lake Mining Co. v. Midway Irr. Co., 47
Utah 346, 149 P. 929, 933.
Flood Waters
Waters which escape from a water course in
great volume and flow over adjoining lands in no
regular channel. The fact that such errant waters
make for themselves a temporary channel or fol-
low some natural channel, gully, or depression
does not affect their character as "flood waters"
or give to the course which they follow the char-
acter of a natural "water course." Mogle v. Moore,
Cal.App., 96 P.2d 147, 150, 151; Everett v. Davis,
Cal.App., 107 P.2d 650, 654, 655.
Foreign Waters
Those belonging to another nation or country or
subject to another jurisdiction, as distinguished
from "domestic" waters. The Pilot, 1 C.C.A. 523,
50 F. 437.
Inland Waters
See Inland.
Navigable Waters
See Navigable.
Percolating Waters
Those which pass through the ground beneath
the surface of the earth without any definite chan-
nel, and do not form a part of the body or flow,
surface or subterranean, of any water-course.
They may be either rain waters which are slowly
infiltrating through the soil or waters seeping
through the banks or the bed of a stream, and
which have so far left the bed and the other
waters as to have lost their character as a part of
the flow of that stream. Vineland Irr. Dist. v.
Azusa Irr. Co., 126 Cal. 486, 58 P. 1057, 46 L.R.A.
820; Los Angeles v. Pomeroy, 124 Cal. 597, 57
Pac. 585; Clinchfield Coal Corporation v. Compton,
148 Va. 437, 139 S.E. 308, 311, 55 A.L.R. 1376;
Flanigan v. State, 113 Misc. 91, 183 N.Y.S. 934, 935.
Private Waters
Non-navigable streams, or bodies of water not
open to the resort and use of the general public,
but entirely owned and controlled by one or more
individuals. Piazzek v. Drainage Dist. No. 1 of
Jefferson County, 119 Kan. 119, 237 P. 1059, 1060.
Public Waters
Such as are adapted for the purposes of naviga-
tion, or those to which the general public have a
right of access, as distinguished from artificial
lakes, ponds, and other bodies of water privately
owned, or similar natural bodies of water owned
exclusively by one or more persons. See Lam-
prey v. Metcalf, 52 Minn. 181, 53 N.W. 1139, 18
L.R.A. 670, 38 Am.St.Rep. 541; State v. Theriault,
70 Vt. 617, 41 A. 1030, 43 L.R.A. 290, 67 Am.St.
Rep. 648.
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WATER
Subterranean Waters
Waters which lie wholly beneath the surface of
the ground, and which either ooze and seep
through the subsurface strata without pursuing
any defined course or channel, (percolating wa-
ters,) or flow in a permanent and regular but in-
visible course, or lie under the earth in a more or
less immovable body, as a subterranean lake.
Surface Waters
As distinguished from the waters of a natural
stream, lake, or pond, surface waters are such as
diffuse themselves over the surface of the ground,
following no defined course or channel, and not
gathering into or forming any more definite body
of water than a mere bog or marsh. They gen-
erally originate in rains and melting snows, but
the flood waters of a river may also be considered
as surface waters if they become separated from
the main current, or leave it never to return, and
spread out over lower ground. See Schaefer v.
Marthaler, 34 Minn. 487, 26 N.W. 726, 57 Am.Rep.
40; Crawford v. Rambo, 44 Ohio St. 279, 7 N.E.
429; San Gabriel Valley Country Club v. Los An-
geles County, 182 Cal. 392, 188 P. 554, 556, 9 A.L.R.
1200; Thompson v. New Haven Water Co., 86
Conn. 597, 86 A. 585, 588, 45 L.R.A.,N.S., 457.
Water derived from rains and melting snows that is dif-
fused over surface of the ground, and it continues to be
such and may be impounded by the owner of the land
until it reaches some well-defined channel in which it is
accustomed to, and does, flow with other waters, or until
it reaches some permanent lake or pond, whereupon it
ceases to be "surface water" and becomes a "water
course" or a "lake" or "pond," as the case may be. State
v. Hiber, 48 Wyo. 172, 44 P.2d 1005, 1008, 1011.
Surplus Water
Water running off from ground which has been
irrigated; water not consumed by the process of
irrigation; water which the land irrigated will not
take up. Wedgworth v. Wedgworth, 20 Ariz. 518,
181 P. 952, 954.
Tide Waters
See Tide.
Water Course
See that title infra.
Water Front
Land or land with buildings fronting on a body
opf water. City of Long Beach v. Lisenby, 175
Cal. 575, 166 P. 333, 335.
Water Power
The water power to which a riparian owner is
entitled consists of the fall in the stream when in
its natural state, as it passes through his land, or
along the boundary of it; or, in other words, it
consists of the difference of level between the sur-
face where the stream first touches his land, and
the surface where it leaves it. McCalmont v.
Whitaker, 3 Rawle (Pa.) 90, 23 Am.Dec. 102.
The use of water for power according to common under-
standing means its application to a water wheel to the end
that its energy under the specified head and fall may be
utilized and converted into available force. Holyoke Wa-
ter Power Co. v. American Writing Paper Co., D.C.Mass.,
17 F.Supp. 895, 898.
Water Right
A legal right, in the nature of a corporeal
hereditament, to use the water of a natural stream
or water furnished through a ditch or canal, for
general or specific purposes, such as irrigation,
mining, power, or domestic use, either to its full
capacity or to a measured extent or during a
defined portion of the time. See Hill v. Newman,
5 Cal. 445, 63 Am.Dec. 140; Murphy v. Kerr, D.C.
N.M., 296 F. 536, 541; City of Los Angeles v. City
of Glendale, Cal.App., 132 P.2d 574, 584. A usu-
fruct in a stream consisting in the right to have
the water flow so that some portion of it may be
reduced to possession and be made private prop-
erty of individual, and it is therefore the right to
divert water from natural stream by artificial
means and apply the same to beneficial use. Ron-
zio v. Denver & R. G. W. R. Co., C.C.A.Utah, 116
F.2d 604, 605. It includes right to change the place
of diversion, storage, or use of water if rights of
other water users will not be injured. Lindsey v.
McClure, C.C.A.N.M., 136 F.2d 65, 70.
It was also said to be real property which may be sold
and transferred separately from land on which it has been
used. Federal Land Bank of Spokane v. Union Cent. Life
Ins. Co., 54 Idaho 161, 29 P.2d 1009, 1011.
Water Right Claim
A "water right claim," as filed with the state
engineer, is merely a declaration of intention to
create a water right. Washington State Sugar Co.
v. Goodrich, 27 Idaho 26, 147 P. 1073, 1076.
Water-Bailiff
The title of an officer, in port towns in England,
appointed for the searching of ships, Also of an
officer belonging to the city of London, who had
the supervising and search of the fish brought
thither. Cowell.
Water-Bayley
In American law. An officer mentioned in the
colony laws of New Plymouth, (A. D. 1671,) whose
duty was to collect dues to the colony for fish
taken in their waters. Probably another form of
water-bailiff. Burrell.
Water-Gage
A sea-wall or bank to restrain the current and
overflowing of the water; also an instrument to
measure water. Cowell.
Water-Gang
A Saxon word for a trench or course to carry a
stream of water, such as are commonly made to
drain water out of marshes. Cowell.
Water-Gavel
In old records. A gavel or rent paid for fishing
in or other benefit received from some river or
water. Cowell; Blount.
Water-Logged
A vessel is "water-logged" when she becomes
heavy and unmanageable on account of the leak-
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age of water into the hold. Fireman's Fund Ins.
Co. v. Globe Na y . Co., C.C.A.Wash., 236 F. 618,
625.
Water-Mark
See that title infra.
Water-Measure
In old statutes. A measure greater than Win-
chester measure by about three gallons in the
bushel. Cowell.
Water-Packed
A "water-packed" bale of cotton is one to the
lint of which water is added in such a manner that
the weight is increased, or in which water-dam-
aged cotton is placed, or the sampling sides of
which are packed with lint cotton not so wet or
water-damaged. Wallace v. Crosthwait, 196 Ala.
356, 71 So. 666, 667.
Waters of the United States
All waters within the United States which are
navigable for the purposes of commerce, or whose
navigation successfully aids commerce, are in-
cluded in this term. The Daniel Ball, 6 F.Cas.
1161.
Waterscape
An aqueduct or passage for water.
WATER COURSE. A running stream of water;
a natural stream fed from permanent or natural
sources, including rivers, creeks, runs, and rivu-
lets. There must be a stream, usually flowing in
a particular direction, though it need not flow con-
tinuously. It may sometimes be dry. It must flow
in a definite channel, having a bed or banks, and
usually discharges itself into some other stream
or body of water. It must be something more
than a mere surface drainage over the entire face
of the tract of land, occasioned by unusual freshets
or other extraordinary causes. Leader v. Mat-
thews, 192 Ark. 1049, 95 S.W.2d 1138, 1139; Los
Angeles v. Pomeroy, 124 Cal. 597, 57 P. 587; Walt
v. Phillips, 166 Ark. 163, 266 S.W. 71, 73; Turner
v. Big Lake Oil Co., Tex.Civ.App., 62 S.W.2d 491,
493.
A "water course," in the legal meaning of the word,
does not consist merely of the stream as it flows within
the banks which form its channel in ordinary stages of
water, but the stream still retains its character as a water
course when, in times of ordinary high water, the stream
extending beyond its own banks, is accustomed to flow
down over the adjacent lowlands in a broader but still
definable stream. Atchison, T. & S. F. Ry. Co, v. Hadley,
168 Okl. 588, 35 P.2d 463, 466.
Water flowing underground in a known and well defined
channel is not "percolating water", but constitutes a "wa-
ter course", and is governed by law applicable to "surface
streams", rather than by law applicable to percolating
waters. Bull v. Siegrist, 169 Or. 180, 126 P.2d 832, 834.
Natural Water Course
A natural stream flowing in a defined bed or
channel; one formed by the natural flow of the
water, as determined by the general superficies or
conformation of the surrounding country, as dis-
tinguished from an "artificial" water course,
formed by the work of man, such as a ditch or
canal. See Barkley v. Wilcox, 86 N.Y. 140, 40 Am.
Rep. 519; Hawley v. Sheldon, 64 Vt. 491, 24 Atl.
717, 33 Am.St.Rep. 941; Porter v. Armstrong, 129
N.C. 101, 39 S.E. 799; Gaskill v. Barnett, 52 Ind.
App. 654, 101 N.E. 40, 42; Williams v. Bass, 179
Wis. 364, 191 N.W. 499, 500.
WATER-MARK. A mark indicating the highest
point to which water rises, or the lowest point to
which it sinks.
High-Water Mark
This term is properly applicable to tidal waters,
and designates the line on the shore reached by
the water at the high or flood tide. With reference
to the waters of artificial ponds or lakes, created
by dams in unnavigable streams, it denotes the
highest point on the shores to which the dams can
raise the water in ordinary circumstances. How-
ard v. Ingersoll, 13 How. 423, 14 L.Ed. 189; Storer
v. Freeman, 6 Mass. 437, 4 Am.Dec. 155; Brady v.
Blackinton, 113 Mass. 245; Cook v. McClure, 58
N.Y. 444, 17 Am.Rep. 270. The high-water mark of
a river, not subject to tide, is the line which the
river impresses on the soil by covering it for suffi-
cient periods to deprive it of vegetation, and to
destroy its value for agriculture. Raide v. Dollar,
34 Idaho 682, 203 P. 469, 471; Union Sand & Grave]
Co. v. Northcott, 102 W.Va. 519, 135 S.E. 589, 592;
Tilden v. Smith, 94 Fla. 502, 113 So. 708, 712.
Low-Water Mark
That line on the shore of the sea which marks
the edge of the waters at the lowest point of the
ordinary ebb tide. See Stover v. Jack, 60 Pa. 342,
100 Am.Dec. 566; Gerrish v. Prop'rs of Union
Wharf, 26 Me. 395, 46 Am.Dec. 568. The "low-
water mark," of a river is the point to which the
water recedes at its lowest stage. Union Sand
& Gravel Co. v. Northcott, 102 W.Va. 519, 135
S.E. 589, 593; Joyce-Watkins Co. v. Industrial
Commission, 325 Ill. 378, 156 N.E. 346, 348.
WATER ORDEAL. See Ordeal.
WATERED STOCK. Stock which is issued by a
corporation as fully paid-up stock, when in fact
the whole amount of the par value thereof has
not been paid in. Harn v. Smith, 85 Okl. 137,
204 P. 642, 644; Bank of Commerce v. Goolsby, 129
Ark. 416, 196 S.W. 803, 807; Loud v. Solomon, 188
Mich. 7, 154 N.W. 73, 75. Stock issued as bonus
or otherwise without consideration or issued for
a less sum of money than par value, or issued
for labor, services, or property which at a fair
valuation is less than the par value. Thomason v.
Miller, Tex.Civ.App., 4 S.W.2d 668, 670.
WATERWAY. Water course. Smith v. Cameron,
123 Or. 501, 262 P. 946, 948. See Water Course.
WAVESON. In old records. Such goods as, after
a wreck, swim or float on the waves. Jacob.
WAX SCOT. A duty anciently paid twice a year
towards the charge of wax candles in churches.
Spelman.
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WAY. A passage, path, road, or street. In a tech-
nical sense, a right of passage over land.
"Ways are appendant or appurtenant" when they are
incident to an estate, one terminus being on the land of
the party claiming it; while "way in gross" must be a
personal right, not assignable nor inheritable. Safety
Building & Loan Co. v. Lyles, 131 S.C. 540, 128 S.E. 724,
725. See "Easement."
Private Way
A right which a person has of passing over the
land of another. Jones v. Venable, 120 Ga. 1, 47
S.E. 549; Kister v. Reeser, 98 Pa. 1, 42 Am.Rep.
608; Kripp v. Curtis, 71 Cal. 62, 11 P. 879. In an-
other sense (chiefly in New England) a private
way is one laid out by the local public authorities
for the accommodation of individuals and wholly
or chiefly at their expense, but not restricted , to
their exclusive use, being subject, like highways,
to the public easement of passage. Clark v. Bos-
ton, C. & M. R. Co., 24 N.H. 118; Butchers', etc.,
Ass'n v. Boston, 139 Mass. 290, 30 N.E. 94.
Right of Way
See that title.
Way of Necessity
Exists where land granted is completely en-
vironed by land of the grantor, or partially by his
land and the land of strangers. The law implies
from these facts that a private right of way over
the grantor's land was granted to the grantee as
appurtenant to the estate. Gwinn v. Gwinn, 77
W.Va. 281, 87 S.E. 371, 373; Violet v. Martin, 62
Mont. 335, 205 P. 221, 223. It is not merely one
of convenience, and never exists where person may
reach highway over his own land. Backhausen
v. Mayer, 204 Wis. 286, 234 N.W. 904, 905, 74 A.L.
R. 1245. And it cannot legally exist where neither
the party claiming the way nor owner of land
over which it is claimed, nor anyone under whom
either of them claim, was ever seized of both tracts
of land at same time. Bowles v. Chapman, 180
Tenn. 232, 175 S.W.2d 313, 314. It is not based
on continuous adverse user, but arises by impli-
cation of law from necessities of case, and ceases
when necessity therefor ceases. Waubun Beach
Ass'n v. Wilson, 274 Mich. 598, 265 N.W. 474, 478,
103 A.L.R. 983.
The extent of a "way of necessity" is a way such as is
required for complete and beneficial use of land to which
the way is impliedly attached. New York Cent. R. Co. v.
Yarian, Ind., 219 Ind. 477, 39 N.E.2d 604, 606, 139 A.L.R.
455.
WAY-BILL. A writing in which is set down the
names of passengers who are carried in a public
conveyance, or the description of goods sent with
a common carrier by land. Wharton.
WAY-GOING CROP. A crop of grain sown by
a tenant for a term certain, during his tenancy,
but which will not ripen until after the expiration,
of his lease. In the absence of an express agree-
ment to the contrary tenant is entitled thereto.
Commonwealth v. Peterman, 130 Pa.Super. 497,
198 A. 687, 688.
WAYLEAVE. A right of way over or through
land for the carriage of minerals from a mine or
quarry. It is an easement, being a species of the
class called "rights of way," and is generally creat-
ed by express grant or reservation. Sweet.
WAYNAGIUM. Implements of husbandry. 1
Reeve, Eng.Law, c. 5, p. 268.
WAYS AND MEANS. In a legislative body, the
"committee on ways and means" is a committee
appointed to inquire into and consider the meth-
ods and sources for raising revenue, and to pro-
pose means for providing the funds needed by the
government.
WAYWARDENS. The English highway acts pro-
vide that in every parish forming part of a high-
way district there shall annually be elected one
or more waywardens. The waywardens so elect-
ed, and the justices for the county residing with-
in the district, form the highway board for the
district. Each waywarden also represents his par-
ish in regard to the levying of the highway rates,
and in questions arising concerning the liability of
his parish to repairs, etc. Sweet.
WEALD. Sax. A wood; the woody part of a
country.
WEALREAF. In old English law. The robbing of
a dead man in his grave.
WEALTH. All material objects, capable of satis-
fying human wants, desires, or tastes, having a
value in exchange, and upon which human labor
has been expended;  e., which have, by such la-
bor, been either reclaimed from nature, extracted
or gathered from the earth or sea, manufactured
from raw materials, improved, adopted, or culti-
vated.
"The aggregate of all the things, whether ma-
terial or immaterial, which contribute to comfort
and enjoyment, which cannot be obtained without
more or less labor, and which are objects of fre-
quent barter and sale, is what we usually call
`wealth.' " Bowen, Pol. Econ. See Branham v.
State, 96 Ga. 307, 22 S.E. 957.
WEAPON. An instrument of offensive or de-
fensive combat, or anything used, or designed to
be used, in destroying, defeating or injuring an
enemy. Perry v. Commonwealth, 286 Ky. 587, 151
S.W.2d 377, 379; People ex rel. Griffin v, Hunt,
150 Misc. 163, 270 N.Y.S. 248. Something to fight
with. Highsaw v. Creech, 17 Tenn.App. 573, 69
S.W.2d 249.
The term is chiefly used, in law, in the statutes
prohibiting the carrying of "concealed" or "dead-
ly" weapons. See those titles. And see also "Of-
fensive."
WEAR, or WEIR. A great dam or fence made
across a river, or against water, formed of stakes
interlaced by twigs of osier, and accommodated for
the taking of fish, or to convey a stream to a
mill. Cowell; Jacob.
WEAR AND TEAR. "Natural wear and tear"
means deterioration or depreciation in value by
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WELFARE
ordinary and reasonable use of the subject-mat-
ter. Green v. Kelly, 20 N.J.L. 548.
WEARING APPAREL. As generally used in
statutes, refers not merely to a person's outer
clothing, but covers all articles usually worn,
and includes underclothing. Arnold v. U. S., 13
S.Ct. 406, 147 U.S. 494, 37 L.Ed. 253. All articles
of dress generally worn by persons in the calling
and condition of life and in the locality of the
person in question. In re Steimes' Estate, 150
Misc. 279, 270 N.Y.S. 339.
WEATHERING. Consists in subjecting raw nat.
ural gasoline to the atmosphere in open tanks un-
til by evaporation, sometimes accelerated by steam
coils, the required vapor pressure or vapor ten-
sion of the remaining liquid is had. Carbide &
Carbon Chemicals Co. v. Phillips Petroleum Co.,
D.C.Del., 28 F.2d 218.
WED. Sax. A covenant or agreement. Cowell.
A pledge. Jenks, Hist. E. L. 13.
WEDBEDRIP. Sax. In old English law. A cus-
tomary service which tenants paid to their lords,
in cutting down their corn, or doing other harvest
duties; as if a covenant to reap for the lord at
the time of his bidding or commanding. Cowell.
WEDLOCK. As used in the phrase "born out of
wedlock" in Uniform Illegitimacy Act, means the
ceremony or state of marriage or status of hus-
band and wife and is equivalent to matrimony but
does not include status of wife and her paramour.
State v. Coliton, N.D., 73 N.D. 582, 17 N.W.2d
546, 549, 156 A.L.R. 1403.
WEEK. A period of seven consecutive days of
time; and, in some uses, the period beginning
with Sunday and ending with Saturday. See
Leach v. Burr, 23 S.Ct. 393, 188 U.S. 510, 47 L.Ed.
567; Ronkendorff v. Taylor, 4 Pet. 361, 7 L.Ed.
882; United States v. Southern Pac. Co., C.C.A.
Utah, 209 F. 562, 567; Progressive Building and
Loan Ass'n v. McIntyre, 169 Tenn. 491, 89 S.W.2d
336, 337.
Words "two weeks" mean fourteen days. Fisher v. Boo-
her, 269 Ky. 501, 107 S.W.2d 307, 309.
WEEK-WORK. In early English times, the ob-
ligation of a tenant to work two or three days in
every week for his lord, during the greater part
of the year, and four or five during the summer
months. 1 Poll. & Maitl. 349.
WEHADING. In old European law. The judicial
combat, or duel; the trial by battel.
WEIGHAGE. In English law. A duty or toll paid
for weighing merchandise. It is called "tronage"
for weighing wool at the king's beam, or "pesage"
for weighing other avoirdupois goods. 2 Chit,
Com.Law, 16.
WEIGHT. A measure of heaviness or ponderosi-
ty; and in a metaphorical sense influence, ef-
fectiveness, or power to influence judgment or
conduct. The quantity of heaviness, the quality
of being heavy, the degree or extent of down-
ward pressure under the influence of gravity, or
the quantity of matter as estimated by the bal-
ance or scale. Dwight & Lloyd Sintering Co. v.
American Ore Reclamation Co., C.C.A.N.Y., 263
F. 315, 316.
Gross Weight
The whole weight of goods and merchandise, in-
cluding the dust and dross, and also the chest
or bag, etc., upon which tare and tret are allowed.
Miner's Weight
Such quantity of mine-run material, as operators
and miners may, from time to time, agree as be-
ing necessary or sufficient to produce a ton of pre-
pared coal. Drake v. Berry, 259 Pa. 8, 102 A. 315,
320.
WEIGHT OF EVIDENCE. The balance of pre-
ponderance of evidence; the inclination of the
greater amount of credible evidence, offered in
a trial, to support one side of the issue rather than
the other.
The "weight" or "preponderance of proof" is a phrase
constantly used, the meaning of which is well understood
and easily defined. It indicates clearly to the jury that
the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds,
they shall find the greater amount of credible evidence sus-
tains the issue which is to be established before them.
Haskins v. Haskins, 9 Gray, Mass., 393. Weight is not a
question of mathematics, but depends on its effect in in-
ducing belief. It often happens that an uncorroborated
witness may tell a story so natural and reasonable, and in
manner so sincere and honest, as to command belief,
though contradicted by others. Braunschweiger v. Waits,
179 Pa. 47, 36 A. 155, 156. "Weight of proof" means
greater amount of credible evidence and is synonymous
with "preponderance of proof." Haskins v. Haskins, 75
Mass. (9 Gray) 390, 393. For a contrary holding, see Shinn
v. Tucker, 37 Ark. 580, 588. See, also, Preponderance.
WEIR. A fence or an inclosure of twigs, set in
a stream to catch fish. Pub.St.Mass. p. 1297;
Treat v. Chipman, 35 Me. 38.
WELDING. The art, practiced immemorially, of
uniting two pieces of metal in one piece by heat-
ing those portions which are to be welded to a
temperature at which they become plastic, and
then pressing them strongly together, so as to.
effect a union. Thomson Spot Welder Co. v. Ford
Motor Co., 44 S.Ct. 533, 534, 265 U.S. 445, 68 L.Ed.
1098.
WELFARE. Well-doing or well-being in any re-
spect; the enjoyment of health and common bless-
ings of life; exemption from any evil or calamity;
prosperity; happiness. Wiseman v. Tanner, D.C.
Wash., 221 F. 694, 698.
WELFARE OF CHILD. Under statutes requiring
in awarding custody of minor that "welfare of
child," be guide, parents need only be honest and
respectable, with disposition and capacity to main-
tain and educate child. In re Bourquin, 88 Mont.
118, 290 P. 250, 251. The "welfare of a child", is
gauged by father's means and station in life and
does not contemplate that child be taken from
father because another can give child more in a
material way. Starr v. Gorman, 136 N.J.L. 105, 40
A.2d 564, 565.
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WELL
WELL, adj.
Marine Insurance
A term used as descriptive of the safety and
soundness of a vessel, in a warranty of her con-
dition at a particular time and place; as, "war-
ranted well at on ."
Old Reports
Good, sufficient, unobjectionable in law; the op-
posite of "ill."
WELL, n. A hole or shaft sunk into the earth in
order to obtain a fluid, such as water, oil, brine, or
natural gas, from a subterranean supply. Loose-
ly, any shaft or pit dug or bored in earth, or any
space so constructed as to suggest or be likened
to, a well for water; a pit or hole in the ground
or a hollow cylinder built in such hole; or a shaft
or excavation in mining. Seismograph Service
Corporation v. Mason, 193 Okl. 623, 145 P.2d 967,
970.
Completed Well
In oil prospecting leases, a well drilled to the
formation or sand in which oil in district in ques-
tion is usually and commonly found. Kies v.
Williams, 190 Ky. 596, 228 S.W. 40, 41.
WELL-BORN MEN. A tribunal in New Amster-
dam (New York). 1 Fiske, Dutch and Quaker
Colonies 238.
WELL KNOWING. A phrase used in pleading as
the technical expression in laying a scienter,
(q. v.).
WELSH MORTGAGE. See Mortgage.
WELSHING. Receiving a sum of money or valu-
able thing, undertaking to return the same or the
value thereof together with other money, if an
event (for example, the result of a horse-race)
shall be determined in a certain manner, and at
the time of receiving the deposit intending to
cheat and defraud the depositor. Coldr. & Hawks.
Gambling 303. The crime is larceny at common
law.
WELSHER. One who at a race track makes bets
or receives money to be bet and absconds with-
out paying his losses or returning money entrust-
ed to him. People v. Monroe, 349 Ill. 270, 182 N.E.
439, 443, 85 A.L.R. 605.
WEN. An indolent encysted tumor of the skin,
especially a sebaceous cyst. Life & Casualty Ins.
Co. v. King, 137 Tenn. 685, 195 S.W. 585, 589.
WEND. In old records. A large extent of ground,
comprising several juga; a perambulation; a
circuit. Spelman; Cowell.
WEOTUMA. The purchase price of a wife among
the heathen Germans. 2 Holdsw.Hist.E.L. 77.
WERA, or WERE. The estimation or price of a
man, especially of one slain. In the criminal law
of the Anglo-Saxons, every man's life had its
value, called a "were," or "capitis cestimatio."
WEREGELT THEF. Sax. In old English law.
A robber who might be ransomed. Fleta, lib. 1, c.
47, § 13.
WEREGILD, or WERGILD. This was the price of
homicide, or other atrocious personal offense, paid
partly to the king for the loss of a subject, partly
to the lord for the loss of a vassal, and partly to
the next of kin of the injured person. In the An-
glo-Saxon laws, the amount of compensation
varied with the degree or rank of the party slain.
Brown. See Angild; Angylde; Assithment.
WERELADA. A purging from a crime by the
oaths of several persons, according to the degree
and quality of the accused. Cowell.
WERGELT. In old Scotch law. A sum paid by
an offender as a compensation or satisfaction for
the offense; a weregild, or wergild.
WERP-GELD. Belg. In European law. Con-
tribution for jettison; average.
WEST SAXON LAGE. The laws of the West Sax-
ons, which obtained in the counties to the south
and west of England, from Kent to Devonshire.
Blackstone supposes these to have been much the
same with the laws of Alfred, being the municipal
law of the far most considerable part of his do-
minions, and particularly including Berkshire, the
seat of his peculiar residence. 1 Bl.Comm. 65.
See Mercen-Lage.
WESTMINSTER. A city immediately adjoining
London, and forming a part of the metropolis;
formerly the seat of the superior courts of the
kingdom.
WESTMINSTER CONFESSION. A document
containing a statement of religious doctrine, con-
cocted at a conference of British and continental
Protestant divines at Westminster, in the year
1643, which subsequently became the basis of the
Scotch Presbyterian Church. Wharton.
WESTMINSTER THE FIRST, STATUTE OF.
The statute 3 Edw. I., A. D. 1275. This statute,
which deserves the name of a code rather than an
act, is divided into fifty-one chapters. Without
extending the exemption of churchmen from civil
jurisdiction, it protects the property of the church
from the violence and spoliation of the king and
the nobles, provides for freedom of popular elec-
tions, because sheriffs, coroners, and conservators
of the peace were still chosen by the freeholders
in the county court, and attempts had been made
to influence the election of knights of the shire,
from the time when they were instituted. It con-
tains a declaration to enforce the enactment of
Magna Charta against excessive fines, which
might operate as perpetual imprisonment; enu-
merates and corrects the abuses of tenures, partic-
ularly as to marriage of wards; regulates the
levying of tolls, which were imposed arbitrarily
by the barons and by cities and boroughs; cor-
rects and restrains the powers of the king's es-
cheator and other officers; amends the criminal
law, putting the crime of rape on the footing
•
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WHEN
to which it has been lately restored, as a most
grievous, but not capital, offense; and embraces
the subject of procedure in civil and criminal
matters, introducing many regulations to render
it cheap, simple, and expeditious. 1 Camp. Lives
Ld. Ch. p. 167; 2 Reeve, Eng. Law, c. 9, p. 107.
Certain parts of this act are repealed by St. 26
& 27 Vict. c. 125. Wharton.
WESTMINSTER THE SECOND, STATUTE OF.
The statute 13 Edw. I. St. 1, A. D. 1285, otherwise
called the "Statute de Donis Conditionalibus."
See 2 Reeve, Eng. Law, c. 10, p. 163. Certain
parts of this act are repealed by St. 19 & 20 Vict.
c. 64, and St. 26 & 27 Vict. c. 125. Wharton.
WESTMINSTER THE THIRD, STATUTE OF.
A statute passed in the eighteenth year of Ed-
ward I. More commonly known as the "Statute
of Quia Emptores," (q. v.). See Barring. Ob. St.
167-169.
WET. A term used to designate one in favor of
allowing the sale of intoxicating liquors. State v.
Shumaker, 200 Ind. 623, 157 N.E. 769, 778.
WET GAS. Natural gas as it flows from the
earth, requiring separation of gasoline therefrom
to make it salable. Atlas Milling Co. v. Jones,
D.C.Okl., 29 F.Supp. 942, 945.
WET OIL. Oil which carries in cohesion with it
more than 3 per cent. by volume of water and
sediment. In re Great Western Petroleum Cor-
poration, D.C.Cal., 16 F.Supp. 247, 252.
VVETHER. A castrated ram, at least one year old.
In an indictment it may be called a "sheep." Rex
v. Birket, 4 Car. & P. 216.
WHACK. To divide into shares, apportion, par-
cel out, make a division settlement, square ac-
counts, or to pay. Schook v. Zimmerman, 188
Mich. 617, 155 N.W. 526, 531.
WHALE. A royal fish, the head being the king's
property, and the tail the queen's. 2 Steph.Comm.
19, 448, 540.
WHALER. A vessel employed in the whale fish-
ery.
WHARF. A structure on the margin of navigable
waters, alongside of which vessels can be brought
for the sake of being conveniently loaded or un-
loaded, or a space of ground, artificially prepared,
for the reception of merchandise from a ship or
vessel, so as to promote the discharge of such
vessel. State v. Louisiana Terminal Co., 179 La.
671, 154 So. 731.
A broad, plain place near a river, canal, or other water,
to lay wares on that are brought to or from the water.
Cowell.
Private Wharf
One whose owner or lessee has the exclusive en-
joyment or use thereof. Hamilton v. Portland
State Pier Site Dist., 120 Me. 15, 112 A. 836, 840;
The M. L. C. No. 10, C.C.A.N.Y., 10 F.2d 699, 702.
Public Wharf
One to which vessels and the public can resort,
either at will or on assignment of a berth by a
harbor authority. Kafline v. Brooklyn Eastern
Dist. Terminal Co., 168 N.Y.S. 120, 121, 180 App.
Div. 858.
Sufferance Wharves
Such as may be appointed by the commission-
ers for the purpose of customs, under the British
act of 1876.
WHARFAGE. The money paid for landing goods
upon, or loading them from, a wharf. Manhattan
Lighterage Corporation v. Moore McCormack Line,
D.C.N.Y., 45 F.Supp. 271, 273. Charge for use of
wharf by way of rent or compensation. Marine
Lighterage Corporation v. Luckenbach S. S. Co.,
139 Misc. 612, 248 N.Y.S. 71, 72.
WHARFING OUT, RIGHT OF. A right to the
exclusive use of submerged lands as by the affixing
thereto or the establishment thereon of a perma-
nent structure to some point within the navigable
body of water, deep and wide enough to dock
ocean-going vessels, and it presupposes exclusive
use and to that extent may interfere with fishing
or navigation. City of Oakland v. Hogan, 41 Cal.
App.2d 333, 106 P.2d 987, 994.
WHARFINGER. The owner or occupier of a
wharf, one who for hire receives merchandise on
his wharf, either for the purpose of forwarding
or for delivery to the consignee on such wharf.
Teahan v. Industrial Accident Commission, 210
Cal. 342, 292 P. 120, 121.
WHEEL. An engine of torture used in medieval
Europe, on which a criminal was bound while his
limbs or bones were broken one by one till he
died.
WHEELAGE. Duty or toll paid for carts, etc.,
passing over certain ground. Cowell.
WHEELERS. Persons employed by a motor car-
rier to load freight on outgoing truck or trailer
bodies and to report physical defects in and need
for repairs to such bodies. Crean v. M. Moran
Transp. Lines, D.C.N.Y., 57 F.Supp. 212, 216.
WHELPS. The young of certain animals of a
base nature or ferce naturoe.
WHEN. At what time; at the time that; at
which time; at that time. Gehrung v. Collister,
52 Ohio App. 314, 3 N.E.2d 700, 701. At, during, or
after the time that; at or just after the moment
that. In re Morrow's Will, 41 N.M. 723, 73 P.2d
1360, 1364. In the event that, on condition that,
in virtue of the circumstances that. Frequently
employed as equivalent to the word "if" in legis-
lative enactments and in common speech. Collins
v. Atlantic Coast Line R. Co., 183 S.C. 284, 190
S.E. 817, 825.
WHEN AND WHERE. Technical words in plead-
ing, formerly necessary in making full defense
to certain actions.
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WHEN
WHEN MANY JOIN IN ONE ACT, THE LAW
SAYS IT IS THE ACT OF HIM WHO COULD
BEST DO IT; AND THINGS SHOULD BE DONE
BY HIM WHO HAS THE BEST SKILL. Nov.
Max.
WHEN NO TIME IS LIMITED, THE LAW AP-
POINTS TIRE MOST CONVENIENT.
WHEN THE COMMON LAW AND STATUTE
LAW CONCUR, THE COMMON LAW IS TO BE
PREFERRED. 4 Co. 71.
WHEN THE FOUNDATION FAILS, ALL FAILS.
WHEN THE LAW GIVES ANYTHING, IT GIVES
A REMEDY FOR THE SAME.
WHEN THE LAW PRESUMES THE AFFIRMA-
TIVE, THE NEGATIVE IS TO BE PROVED, 1
Rolle 83.
WHEN TWO TITLES CONCUR, THE BEST IS
PREFERRED. Finch, Law. b. 1, c. 4, n. 82.
WHENEVER. At whatever time; at what time
soever. Williams v. Potter, D.C.N.Y., 210 F. 318,
325; People v. Merhige, 221 Mich. 601, 180 N.W.
418, 422. In any or every instance in which.
Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641, 644.
As long as. Moore v. Johnson, 85 N.J.Law, 40,
88 A. 699, 701. As soon as; upon which; where;
in case; if. People v. Merhige, 212 Mich. 601, 180
N.W. 418, 422.
WHERE. At the place. Girl v. U. S. Railroad Ad-
ministration, 194 Iowa 1382, 189 N.W. 834, 835;
Shearer v. Farmers' Life Ins. Co., 106 Kan. 574,
189 P. 648, 650. As used in the statutory lan-
guage, "where the prosecution is held," the word
does not refer to the geographical location of the
place of hearing, but rather to the tribunal or
official before whom the case is tried. Barth v.
State, 107 Ohio St. 154, 140 N.E. 650, 651.
If; in the case of; in the event that. Graham
v. Standard Fire Ins. Co., 119 S.C. 218, 112 S.E.
88, 89.
WHERE THERE IS EQUAL EQUITY, THE LAW
MUST PREVAIL. Bisp.Eq. § 40; 4 Bouv.Inst.
n. 3727.
WHERE TWO RIGHTS CONCUR, THE MORE
ANCIENT SHALL BE PREFERRED.
WHEREAS. When in fact. Stoltz v. People, 59
Colo. 342, 148 P. 865, 866. Although. Hill v.
Smith, 95 Conn. 579, 111 A. 840, 842.
A "whereas" clause of a contract is but an introductory
or prefatory statement meaning "considering that" or
"that being the case", and is not an essential part of the
operating  portions of the contract. Jones v. City of Pa-
ducah, 283 Ky. 628, 142 S.W.2d 365, 367.
WHEREBY. By or through which; by the help
of which; in accordance with which. State ex
rel. Finnegan v. Lincoln Dairy Co., 221 Wis. 1,
265 N.W. 197, 200.
WHEREUPON. Upon which; after which. Lee
v. Cook, 1 Wyo. 419.
WHEREVER. As often as. Moore v. Johnson, 85
N.J.Law, 40, 88 A. 699, 701.
WHICH. A clause introduced by the relative
pronoun "which" is a sufficient allegation of the
fact stated in it, if, when read in connection with
its context, it plainly manifests an intent on the
part of the pleader to set up such fact and rely
upon it. Bishop v. Wheeling Mold & Foundry
Co., 82 W.Va. 637, 96 S.E. 1020, 1022.
WHIG. This name was applied in Scotland, A. D.
1648, to those violent Covenanters who opposed
the Duke of Hamilton's invasion of England in
order to restore Charles I. The appellation of
"Whig" and "Tory" to political factions was first
heard of in A. D. 1679, and, though as senseless
as any cant terms that could be devised, they
became instantly as familiar in use as they have
since continued. 2 Hall. Const. Hist. c. 12; Whar-
ton.
WHILE. Pending or during the time that. Fire-
man's Fund Ins. Co. v. Jackson, 161 Ga. 559, 131
S.E. 359, 360. Often used adversatively and to im-
ply contrast, and in some constructions introduces
a parenthetical clause. Jackson v. Texas Co., C.C.
A.Okl., 75 F.2d 549. 553.
WHIPLASH INJURY. A snapping of the neck
when a person gets his head thrown forward or
back or from side to side. Breitenberg v. Parker,
372 S.W.2d 828, 832, 237 Ark. 261. it is caused by
a sudden and unexpected forced movement of the
neck of an individual while he is in a relaxed posi-
tion and against which he cannot protect himself.
Hanover Fire Ins. Co. v. Sides, C.A.La., 320 F.2d
437, 441. It may result in several types of patho-
logical findings, such as sprain, fracture, disloca-
tion and so forth. Self v. Johnson, La.App., 124
So.2d 324, 325; Luquette v. Bouillion, La.App., 184
So.2d 766, 768.
WHIPPING. A mode of punishment, by the in-
fliction of stripes, occasionally used in England and
in a few of the American states. See Act of Feb-
ruary 28, 1839, § 5 (18 U.S.C.A. § 3564).
WHIPPING-POST. A post or stake to which a
criminal is tied to undergo the punishment of
whipping.
WHIPPING STRAP. Device to warn employees
on train of approach to tunnel. Southern Ry. Co.
v. Crawley, 229 Ala. 162, 155 So. 568,
See, also, Telltales.
WHISKY. An alcoholic liquid obtained by the
distillation of the mash of fermented grain. Ram-
sey v. State, 132 Tex.Cr.R. 411, 104 S.W.2d 858,
859. Containing many times one-half of one per
cent. of alcohol. Allshouse v. U. S., C.C.A.Pa., 38
F.2d 234, 235.
Within the pure food act of 1906, it is the product of
sound grain distilled at a low temperature so as to retain
in the distillate the congeneric properties of the grain
which gives to the liquor when matured by aging in
charred casks its desirable potable character. Neutral
spirits which are distilled at a high temperature may be
made from different materials and do not contain such
properties, and which are not rendered potable by aging
although reduced by water to potable strength, and from
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WHOLE
which most of the fusel oil has been removed, are not
whisky, nor a like substance with whisky. Woolner &
Co. v. Rennick, C.C.I11., 170 F. 662.
WHITE ACRE. A fictitious name given to a piece
of land, in the English books, for purposes of il-
lustration.
WHITE BONNET. In Scotch law. A fictitious of-
ferer or bidder at a roup or auction sale. Bell.
WHITE MEATS. In old English law. Milk, but-
ter, cheese, eggs, and any composition of them.
Cowell.
WHITE METAL. In a special technical sense,
the copper sulphide remaining when, in smelting
copper ore, copper matte is treated to break up
and remove iron sulphide. United Verde Copper
Co. v. Peirce-Smith Converter Co., C.C.A.Del., 7
F.2d 13, 14.
WHITE MULE. Corn whisky. State v. Johnson,
Mo.Sup., 292 S.W. 41. Contraband whisky. Sloan
v. State, 193 Ind. 625, 141 N.E. 321.
WHITE PERSONS. As used in Rev.St.U.S.
2169 (Naturalization Act March 26, 1790, c. 3, 1
Stat. 103, as amended by Act Feb. 18, 1875, c.
80, § 1, 18 Stat. 318 [8 IT.S.C.A. § 703) ), members
of the white or Caucasian race, as distinct from
the black, red, yellow, and brown races. Petition
of Easurk Emsen Charr, D.C.Mo., 273 F. 207, 209;
Takao Ozawa v. U. S., 43 S.Ct. 65, 68, 260 U.S. 178,
67 L.Ed. 199; In re Ah Yup, 5 Sawy. 155, F.Cas.
No. 104.
Whether applicant for United States citizenship Is a
"white person" eligible for citizenship under statute enu-
merating classes of people eligible therefor depends, not
upon ethnological classification of group to which he be-
longs, but upon whether members of such group with
characteristics existing in 1790 when statute was first en-
acted were intended by Congress to be classified as white
persons. In re Ahmed Hassan, D.C.Mich., 48 F.Supp. 843,
845: And statute uses the words "white persons" as
meaning primarily the European peoples who constituted
the class from which virtually all of immigration to Unit-
ed States has come and who readily become assimilated
into our civilization. In re Ahmed Hassan, D.C.Mich., 48
F.Supp. 843, 845.
The term excludes: a Hindu, U. S. v. Ali, D.C.Mich., 7
F.2d 728, 731; a Mongolian, In re Ah Yup, 5 Sawy. 155, F.
Cas.No.104; In re Fisher, D.C.Cal., 21 F.2d 1007; Terrace
v. Thompson, D.C.Wash., 274 F. 841, 843; In re Lampitoe,
D.C.N.Y., 232 F. 382; a native born Filipino, In re Cariaga,
D.C.Mich., 47 F.2d 609; a native of Afghanistan, In re
Feroz Din, D.C.Cal., 27 F.2d 568, an Arab, In re Ahmed
Hassan, D.C.Mich., 48 F.Supp. 843, 845. (Contra In re
Moriez, D.C.Mass., 54 F.Supp. 941, 942.) It has been held
to include a Syrian; Dow v. United States, C.C.A.S.C.,
226 F. 145; In re Ellis, D.C.Or., 179 F. 1002; Bessho v.
U. S., C.C.A.Va., 178 F. 245, 101 C.C.A. 605; and an Arme-
nian; In re Halladjian, C.C.Mass., 174 F. 834.
In the legislation of the slave period, persons
without admixture of colored blood, whatever the
actual complexion might be. Du Val v, Johnson,
39 Ark. 192. See, also, White Race.
In South Africa, persons of European descent.
[1905] T. S. 621.
WHITE RACE. Within the meaning of the Mis-
sissippi Constitution of 1890, § 207, providing that
there shall be separate schools for the white and
colored races, the Caucasian race;—the term "col-
ored races," being used in contradistinction to the
white race, and embracing all other races. Rice
v. Gong Lum, 139 Miss. 760, 104 So. 105, 107. See,
also, White Persons.
WHITE RENTS. In English law. Rents paid in
silver, and called "white rents," or "redditus albi,"
to distinguish them from rents payable in corn,
labor, provisions, etc., called "black-rent" or
"black-mail." Co. 2d Inst. 19. See Alba Firma.
WHITE SLAVE. A term used in the United
States statutes and in common talk (though not
very appropriately) to indicate a female with ref-
erence to whom an offense is committed under the
so-called Mann White Slave Traffic Act of June 25,
1910 (18 U.S.C.A. §§ 2421-2424), prohibiting the
transportation in interstate and foreign commerce
for immoral purposes of women and girls.
WHITE SPURS. A kind of esquires. Cowell.
WHITECAPS. The name of an unlawful organi-
zation against which Tennessee in 1897 enacted a
statute (Acts 1897, c. 52) entitled, "An act to pre-
vent and punish the formation or continuance of
conspiracies and combinations for certain unlawful
purposes," etc., commonly known as the "Law
against Whitecaps." Persons guilty of any of-
fense under the act were rendered incompetent
for jury service. Jenkins v. State, 99 Tenn. 569, 42
S.W. 263.
WHITEFRIARS. A place in London between the
Temple and Blackfriars, which was formerly a
sanctuary, and therefore privileged from arrest.
Wharton.
WHITEHART SILVER. A mulct on certain lands
in or near to the forest of Whitehart, paid into
the exchequer, imposed by Henry III. upon Thom-
as de la Linda, for killing a beautiful white hart
which that king before had spared in hunting.
Camd. Brit. 150.
WHITSUN FARTHINGS. Pentecostals, (q. v.).
WHITSUNTIDE. The feast of Pentecost, being
the fiftieth day after Easter, and the first of the
four cross-quarter days of the year. Wharton.
WHITTANWARII. In old English law. A class
of offenders who whitened stolen ox-hides and
horse-hides so that they could not be known and
identified.
WHOEVER. This word in statutes may be con-
strued as including corporations and partnerships.
American Socialist Soc. v. U. S., C.C.A.N.Y., 266
F. 212, 213; U. S. v. American Socialist Soc., D.C.
N.Y., 260 F. 885, 887.
WHOLE. Hale, hearty, strong, sound; also, en-
tire, complete. Clark v. Commercial Casualty Ins,
Co., 107 W.Va. 380, 148 S.E. 319, 320.
WHOLE BLOOD. See Blood.
WHOLE CHEST. In the tea trade, a chest con-
taining 100 to 140 pounds or more. Japan Tea
Co. v. Franklin MacVeagh & Co., 142 Minn. 152,
171 N.W. 305, 307.
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WHOLE
WHOLE GALE. A wind from 55 to 75 miles per
hour. The President Madison, C.C.A.Wash., 91
F.2d 835, 841.
WHOLESALE, Selling to retailers or jobbers
rather than to consumers. Stolze Lumber Co. v.
Stratton, 386 Ill. 334, 54 N.E.2d 554, 558. A sale in
large quantity to one who intends to resell. Guess
v. Montague, D.C.S.C., 51 F.Supp. 61, modified on
other grounds, C.C.A.S.C., 140 F.2d 500. A sale of
goods by the piece or in large quantities. Fleming
v. American Stores Co., D.C.Pa., 42 F.Supp. 511,
522.
WHOLESALE BAKERY. A business or industry
where food products composed principally of flour
or meal are prepared and sold in gross to the re-
tail dealer and vendor. Continental Baking Co. v.
Campbell, 176 Okl. 218, 55 P.2d 114, 117.
WHOLESALE DEALER. One whose business is
the selling of goods in gross to retail dealers,
and not by the small quantity or parcel to con-
sumers thereof. Veazey Drug Co. v. Bruza, 169
Okl. 418, 37 P.2d 294.
WHOLESALE PRICE. That which retailer pays
in expectation of obtaining higher price by way
of profit from ultimate consumer. Guess v. Mon-
tague, D.C.S.C., 51 F.Supp. 61, 65.
WHOLESALER. One who buys in comparatively
large quantities, and who sells, usually in smaller
quantities, but never to the ultimate consumer
of an individual unit. He sells either to a "jobber,"
a sort of middleman, or to a "retailer," who sells
to the consumer. Great Atlantic & Pacific Tea Co.
v. Cream of Wheat Co., C.C.A.N.Y., 227 F. 46, 47;
Fischbach Brewing Co. v. City of St. Louis, 95
S.W.2d 335, 340, 231 Mo.App. 793.
WHOLESOME. Sound, tending to promote health.
Leonardi v. A. Habermann Provision Co., 143 Ohio
St. 623, 56 N.E.2d 232, 237.
WHOLLY. Not partially. Corsaut v. Equitable
Life Assur. Soc. of the United States, 203 Iowa,
741, 211 N.W. 222, 224, 51 A.L.R. 1035; McCormick
v. Central Coal & Coke Co., 117 Kan. 686, 232 P.
1071, 1074. In a whole or complete manner; en-
tirely; completely; perfectly. Knox v. Washer,
153 Tenn. 630, 284 S.W. 888, 889. Exclusively; to
the exclusion of other things. Commonwealth v.
City of Richmond, 116 Va. 69, 81 S.E. 69, 73, L.R.A.
1915A, 1118. Equally. The Canadian Farmer,
D.C.Cal., 290 F. 601, 603. Totally; fully. Chica-
go & Calumet Dist. Transit Co. v. Mueller, 213
Ind. 530, 12 N.E.2d 247, 249.
WHOLLY AND PERMANENTLY DISABLED.
Term within disability clause of life policy does
not mean "partial" or "temporary," and is not to
be construed literally so as to require condition
of complete helplessness or utter hopelessness to
be entitled to benefits. Duhaime v. Prudential
Ins. Co. of America, 86 N.H. 307, 167 A. 269, 270,
but must be given rational meaning. Clarkson v.
New York Life Ins. Co., D.C.Fla., 4 F.Supp. 791,
793.
WHOLLY DEPENDENT. A person is to be re-
garded as "wholly dependent" upon a workman,
within meaning of compensation acts, when his
support is derived wholly from the workman's
wages. Baker v. Western Power & Light Co., 147
Kan. 571, 78 P.2d 36, 40; Central Surety and In-
surance Corporation v. Industrial Commission, 94
Colo. 341, 30 P.2d 253, 255.
Person may be "wholly dependent" on workman though
he may have some slight savings of his own, or some other
slight property, or be able to make something by his own
service. United States Coal & Coke Co. v. Sutton, 268 Ky.
405, 105 S.W.2d 173, 177.
WHOLLY DESTROYED. A building is "wholly
destroyed" within the meaning of statutes permit-
ting recovery of the full amount of a fire insur-
ance policy, when, although some part remains
standing, it can no longer be designated as a build-
ing. Eck v. Netherlands Ins. Co., 203 Wis. 515, 234
N.W. 718, 719. The words mean totally destroyed
as a building, although there is not an absolute
extinction of all its parts. Hart v. North British
& Mercantile Ins. Co., 182 La. 551, 162 So. 177.
WHOLLY DISABLED. These words within ac-
cident policy do not mean a state of complete
physical and mental incapacity or utter help-
lessness but mean rather inability to do all the
substantial and material acts necessary to carry on
a certain business or occupation or any business
or occupation in a customary and usual manner
and which acts the insured would be able to
perform in such manner but for the disability.
Jacobson v. Mutual Ben. Health & Accident Ass'n,
70 N.D. 566, 296 N.W. 545, 552, 553. Total disabili-
ty. Maryland Assur. Corporation v. Smith, 786
Ky. 513, 151 S.W. 409, 412. See, also, Disability.
WHORE. A woman who practices illicit sexual
intercourse, either for hire or to gratify a de-
praved passion. Rowe v. Myers, 204 Mich. 374, 169
N.W. 823, 825. A woman given to promiscuous
intercourse. Barnett v. Phelps, 97 Or. 242, 191
P. 502, 503, 11 A.L.R. 663. A woman who prac-
tices unlawful commerce with men, particularly
one who does so for hire; a harlot; a concubine;
a prostitute. Sheehey v. Cokley, 43 Iowa 183, 22
Am.Rep. 236.
WHOREMASTER. Ordinarily, one who prac-
tices lewdness; also, one who keeps or procures
whores for others; a pimp; a procurer. Nick-
erson v. Masters, 190 Ky. 168, 226 S.W. 1072, 1073.
WIC. A place on the sea-shore or the bank of a
river.
WICA. A country house or farm. Cowell.
WICK. Sax. A village, town, or district. Hence,
in composition, the territory over which a given
jurisdiction extends. Thus, "bailiwick" is the ter-
ritorial jurisdiction of a bailiff or sheriff or con-
stable. "Sheriff-wick" was also used in the old
books.
WIDEN. To increase in width; to extend. In re
Day, 109 A. 573, 7 Boyce (Del.) 556.
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WILL
WIDOW. A woman whose husband is dead, and
who has not remarried. In re Embiricos' Estate,
184 Misc. 453, 52 N.Y.S.2d 425, 427.
Grass Widow
See that title.
King's Widow
One whose deceased husband had been the
king's tenant in capite; she could not marry again
without the royal permission.
Widow-bench
The share of her husband's estate which a wid-
ow is allowed besides her jointure.
Widow's Chamber
See Chamber, Widow's.
Widow's Quarantine
In old English law. The space of forty days
after the death of a man who died seised of lands,
during which his widow might remain in her hus-
band's capital mansion-house, without rent, and
during which time her dower should be assigned.
2 Bl.Comm. 135. See Vannoy v. Green, 206 N.C.
77, 173 S.E. 277.
Widow's Terce
In Scotch law. The right which a wife has aft-
er her husband's death to a third of the rents of
lands in which her husband died infeft; dower.
Bell.
Year of Mourning
See that title, and Annus Luctus.
WIDOWER. A man who has lost his wife by
death and has not married again. Abrams v. Un-
known Heirs of Rice, 317 Mo. 216, 295 S.W. 83,
85.
WIDOWHOOD. The state or condition of being
a widow, or, sometimes, a widower. An estate is
sometimes settled upon a woman "during widow-
hood," which is expressed in Latin, "durante vid-
uitate."
WIENER. A small sausage of unknown content
commonly called a "hot dog." State v. Shoaf,
179 N.C. 744, 102 S.E. 705, 9 A.L.R. 426.
WIFA. L. Lat. In old European law. A mark
or sign; a mark set up on land, to denote an ex-
clusive occupation, or to prohibit entry. Spelman.
WIFE. A woman united to a man by marriage;
a woman who has a husband living and undi-
vorced. The correlative term is "husband." Davis
v. Bass, 188 N.C. 200, 124 S.E. 566, 568; Estes v.
Merrill, 121 Ark. 361, 181 S.W. 136, 137; Ex parte
Suzanna, D.C.Mass., 295 F. 713, 714.
Workmen's Compensation Laws should be strictly inter-
terpreted where rights of legal wife as against putative
wife would be defeated or lessened by liberal interpreta-
tion, and, as so interpreted, terms "wife" and "widow"
within compensation law do not include wife of putative
marriage. Fulton Bag & Cotton Mills v. Fernandez, La.
App., 159 So. 339, 345.
"Examination of wife," see Private Examina-
tion.
WIFE AND CHILDREN. A conveyance or devise
by a man to his wife and children will be pre-
sumed, in the absence of language indicating a
contrary purpose, to be to wife for life, with re-
mainder to her and grantor's or testator's children.
Sower v. Lillard, 207 Ky. 283, 269 S.W. 330, 331.
WIFE'S EQUITY. When a husband is compelled
to seek the aid of a court of equity for the pur-
pose of obtaining the possession or control of his
wife's estate, that court will recognize the right
of the wife to have a suitable and reasonable pro-
vision made, by settlement or otherwise, for her-
self and her children, out of the property thus
brought within its jurisdiction. This right is
called the "wife's equity," or "equity to a settle-
ment." See 2 Kent, Comm. 139.
WIFE'S PART. See Legitime.
WIGREVE. In old English law. The overseer
of a wood. Cowell.
WILD ANIMALS (or animals ferns naturce). Ani-
mals of an untamable disposition; animals in a
state of nature.
WILD FOWL. Any large eatable bird of a wild
nature. Crabtree v. State, 123 Ark. 68, 184 S.W.
430.
WILD LAND. Land in a state of nature, as dis-
tinguished from improved or cultivated land.
Clark v. Phelps, 4 Cow., N.Y., 203. Land in a
wilderness state, not used in connection with im-
proved estates. Central Maine Power Co. v. Rol-
lins, 126 Me. 299, 138 A. 170, 174. When land is
contiguous to improved and cultivated land, and
commonly used therewith for fuel, fencing, re-
pairs, or pasturing, it no longer has the character
of "wild land." Holden v. Page, 107 A. 492, 494,
118 Me. 242.
WILD WELL. In the parlance of men in the gas
industry, a gas well wherein the gas pipe de-
velops a leak at a point beneath the surface of
ground with the result that large amounts of
gas escape. Mitchell v. Mitchell Drilling Co., 154
Kan. 117, 114 P.2d 841, 842.
WILD'S CASE, RULE IN. A devise to B. anc his
children or issue, B. having no issue at the time
of the devise, gives him an estate tail; but, if he
have issue at the time, B. and his children take
joint estates for life. 6 Coke, 16b; Tudor, Lead.
Cas. Real Prop. 542, 581.
WILL, v. An auxiliary verb commonly having
the mandatory sense of "shall" or "must." Ten-
nessee Cent. R. Co. v. Morgan, 132 Tenn. 1, 175 S.
W. 1148, 1153. State v. Summers, Mo.App., 281
S.W. 123, 124. It is a word of certainty, while
the word "may" is one of speculation and uncer-
tainty. Carson v. Turrish, 140 Minn. 445, 168 N.W.
349, 352, L.R.A.1918F, 154.
WILL, n. Wish; desire; pleasure; inclination;
choice; the faculty of conscious, and especially of
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deliberate, action. State v. Schwab, 109 Ohio St.
532, 143 N.E. 29, 31. When a person expresses his
"will" that a particular disposition be made of his
property, his words are words of command, Tem-
ple v. Russell, 251 Mass. 231, 146 N.E. 679, 680, 49
A.L.R. 1, and the word "will" as so used is man-
datory, comprehensive, and dispositive in nature,
Mastellar v. Atkinson, 94 Kan. 279, 146 P. 367, 368,
Ann.Cas.1917B, 502.
Law of Wills
The legal expression or declaration of a person's
mind or wishes as to the disposition of his prop-
erty, to be performed or take effect after his death.
Swinb. Wills, § 2; Thomas v. House, 145 Va. 742,
134 S.E. 673, 674; In re McCune's Estate, 265 Pa.
523, 109 A. 156, 157; Krause v. Krause, 113 Neb. 22,
201 N.W. 670, 673. A revocable instrument by
which a person makes disposition of his property
to take effect after his death. Howard's Ex'r v.
Dempster, 246 Ky. 153, 54 S.W.2d 660, 661. Any
instrument whereby a person makes a disposition
of his property to take effect after his death.
Todd v. Williams' Adm'x, 264 Ky. 788, 95 S.W.2d
593, 596. A written instrument executed with
the formalities of law, whereby a person makes
a disposition of his property to take effect after
his death. Tax Commission of Ohio v. Parker,
117 Ohio St. 215, 158 N.E. 89, 90.
To constitute "will," intention must appear that writer
by document itself intended to make disposition of prop-
erty effective only after death. In re Button's. Estate, 209
Cal. 325, 287 P. 964, 967.
A "will" is not a sheet of paper, nor a number of sheets
or pages, but consists of the words written thereon. In re
Golden's Will, 165 Misc. 205, 300 N.Y.S. 737, 738. And the
form of an instrument is of little consequence in determin-
ing whether it is a will, but if it is executed with formali-
ties required by statute, and if it is to operate only after
death of maker, it is a "will". In re Fowle's Estate, 292
Mich. 500, 290 N.W. 883, 885.
Instruments conveying a present interest are deeds, and
not wills, Jung v. Petermann, Tex.Civ.App., 194 S.W. 202,
205; Moss v. Hodges, 294 Ky. 677, 172 S.W.2d 584, 585;
for wills pass no interest until after the death of the mak-
er; Willis v. Fiveash, Tex.Civ.App., 297 S.W. 509, 510;
Sims v. Brown, 252 Mo. 58, 158 S.W. 624, 627. An instru-
ment, although in form of a bill or note, which is intended
to have no operation until death of maker, is not "con-
tractual" but is of the nature of a "will." In re Murphy's
Estate, 193 Wash. 400, 75 P.2d 916, 924.
"Codicil" to will is distinguished from new "will," in
that the latter revokes the first in its entirety unless other-
wise provided therein. In re Bissell's Estate, 302 Pa.
27, 153 A. 692, 694.
The distinction between a "will" and a "power of ap-
pointment" Is that a will concerns the estate of the testa-
tor, while an appointment under a power concerns that
of the donor of the power. Thompson v. Pew, 214 Mass.
520, 102 N.E. 122.
The difference between a will and a trust is that a will
operates from the moment of death, while a trust operates
in pra?senti to a certain extent. Allen v. Hendrick, 104
Or. 202, 206 P. 733, 740.
A gift inter vivos is distinguishable from a will in that
such a gift may be made by parol and, upon the acceptance
of the gift by the donee, the gift is irrevocable by the don-
or, while ordinarily a will is required to be in writing, and
usually is made in view of the fact of death, and is inef-
fective until the death of the testator and the admission
of the will to probate. York v. Trigg, 87 Old. 214, 209 P.
417, 423.
The term will, as an expression of the final disposition of
one's property, is confined to the English laws and those
countries which derive their jurisprudence from that
source. The term testamentum, or testament, is exclusive-
ly used in the Roman civil law and by the continental
writers upon that subject.
A will, when it operates upon personal property, is some-
times called a "testament," and when upon real estate, a
"devise;" but the more general and the more popular de-
nomination of the instrument embracing equally real and
personal estate is that of "last will and testament." 4
Kent, Comm. 501; In re Kiltz's Will, 125 Misc.Rep. 475,
211 N.Y.S. 450, 461.
Criminal Law
The power of the mind which directs the action
of a man.
Scotch Practice
That part or clause of a process which contains
the mandate or command to the officer. Bell.
General
Ambulatory will. A changeable will (ambula-
toria voluntas), the phrase merely denoting the
power which a testator possesses of altering his
will during his life-time. See Hattersley v. Bissett,
50 N.J.Eq. 577, 25 A. 332.
Conditional will. A conditional disposition is
one which depends upon the occurrence of some
uncertain event, by which it is either to take effect
or to be defeated. Rogers v. Mosier, 121 Okl. 213,
245 P. 36, 38. If the happening of an event named
in a will is the reason for making the will, it is
"unconditional"; but, if the testator intends to
dispose of his property in case the event happens,
the will is "conditional." Ferguson v. Ferguson,
Tex.Civ.App., 288 S.W. 833, 835.
Conjoint will. See Joint Will, infra.
Counter wills. Another name for "double,"
"mutual," or "reciprocal" wills. Wright v. Wright,
215 Ky. 394, 285 S.W. 188, 189.
Double will. Called also a "counter," "mutual,"
or "reciprocal" will. Wright v. Wright, 215 Ky.
394, 285 S.W. 188, 189. See Double.
Estate at will. This estate entitles the grantee
or lessee to the possession of land during the
pleasure of both the grantor and himself, yet it
creates no sure or durable right, and is bounded
by no definite limits as to duration. It must be at
the reciprocal will of both parties, (for, if it be at
the will of the lessor only, it is a lease for life,)
and the dissent of either determines it. Whar-
ton.
Holographic will. One that is entirely written,
dated, and signed by the hand of the testator him-
self. In re Hail's Estate, 106 Okl. 124, 235 P. 916,
917; In re Cole's Will, 171 N.C. 74, 87 S.E. 962;
Civ.Code La. art. 1588. Sometimes spelled "olo-
graphic."  Succession of Cunningham, 142 La.
701, 77 So. 506, 510. The statutes in the different
states differ to some extent, but agree substan-
tially with the English statute of Charles II.
Compliance with the precise terms of the statu-
tory definition or requirements is commonly in-
sisted upon with the utmost meticulosity. In re
Thorn's Estate, 183 Cal. 512, 192 P. 19, 20.
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Joint and mutual will. One executed jointly by
two persons with reciprocal provisions, which
shows on its face that the devises are made one in
consideration of the other. Wright v. Wright, 215
Ky. 394, 285 S.W. 188, 189; Bright v. Cox, 147 Ga.
474, 94 S.E. 572, 573.
Joint will. One where the same instrument is
made the will of two or more persons and is
jointly signed by them. Such wills are usually
executed to make testamentary disposition of joint
property. Bright v. Cox, 147 Ga. 474, 94 S.E. 572,
573; Campbell v. Dunkelberger, 172 Iowa 385,
153 N.W. 56, 58. A joint or conjoint will is a
testamentary instrument executed by two or more
persons, in pursuance of a common intention, for
the purpose of disposing of their several inter-
ests in property owned by them in common, or
of their separate property treated as a common
fund, to a third person or persons. Ginn v. Ed-
mundson, 173 N.C. 85, 91 S.E. 696.
Mutual will. One in which two or more persons
make mutual or reciprocal provisions in favor of
each other. Ginn v. Edmundson, 173 N.C. 85, 91
S.E. 696. "Mutual wills" are the separate wills
of two persons which are reciprocal in their pro-
visions, and such a will may be both joint and
mutual. Campbell v. Dunkelberger, 172 Iowa 385,
153 N.W. 56, 58; Carle v. Miles, 89 Kan. 540, 132
P. 146, Ann.Cas.1915A, 363; Bright v. Cox, 147
Ga. 474, 94 S.E. 572, 573. Sometimes called a "re-
ciprocal," "double," or "counter" will. Wright v.
Wright, 215 Ky. 394, 285 S.W. 188, 189.
Mystic will. See Testament.
Non-intervention will. In some jurisdictions,
one authorizing the executor to act without bond
and to manage, control, and settle the estate
without the intervention of any court whatsoever.
In re MacDonald's Estate, 29 Wash. 422, 428, 69
P. 1111.
Nuncupative will. See that title.
Reciprocal will. One in which two or more per-
sons make mutual or reciprocal provisions in favor
of each other. Ginn v. Edmundson, 173 N.C. 85, 91
S.E. 696. Also known as a "mutual," "double," or
"counter" will. Wright v. Wright, 215 Ky. 394, 285
S.W. 188, 189.
Self-proved wills. A will which eliminates some
of the formalities of proof by execution in com-
pliance with statute. It is made self-proved by af-
fidavit of attesting witnesses in the form prescrib-
ed by statute. Most statutes provide that, unless
contested, such a will may be admitted to probate
without testimony of subscribing witnesses.
Statute of wills. See Wills Act, infra.
Unofficious will. In the civil law, testamentum
inofficium. One made in disregard of natural
obligations as to inheritance. Stein v. Wilzinski, 4
Redf.Sur. (N.Y.) 450; 2 Bla.Comm. 502; Hadley,
Rom.L. 317. It has no place in the common law;
1 Fost. & F. 578.
50, 51. Any kind of litigated controversy concern-
ing the eligibility of an instrument to probate as
distinguished from validity of the contents of
the will. In re Hesse's Estate, 62 Ariz. 273, 157
P.2d 347, 349,
WILLA. In Hindu law. The relation between a
master or patron and his freedman, and the rela-
tion between two persons who had made a recipro-
cal testamentary contract. Wharton.
WILLFUL. Proceeding from a conscious motion
of the will; voluntary. Nashville, C. & St. L. Ry.
Co. v. Commonwealth, 160 Ky. 50, 169 S.W. 511,
513.
Intractable; having a headstrong disposition to
act by the rule of contradiction. Bersch v. Morris
& Co., 106 Kan. 800, 189 P. 934, 935, 9 A.L.R. 1374.
Obstinate; perverse. Lynch v. Commonwealth,
131 Va. 762, 109 S.E. 427, 428; Jones v. State, 7
Ala.App. 180, 62 So. 306, 307.
Intending the result which actually comes to
pass; designed; intentional; not accidental or
involuntary. Garrett v. Commonwealth, 215 Ky.
484, 285 S.W. 203, 204; State v. Muzzy, 87 Vt. 267,
88 A. 895, 896; Roseville Trust Co. v. American
Surety Co. of New York, 91 N.J.Law, 588, 103 A.
182; State v. Lehman, 131 Minn. 427, 155 N.W.
399, Ann.Cas.1917D, 615; United States v. Illinois
Cent. R. Co., La., 58 S.Ct. 533, 535, 303 U.S. 239, 82
L.Ed. 773.
The word "wilful" is a word of many meanings depend-
ing on the context in which it is used. Zimberg v. UnitedStates, C.C.A.Mass., 142 F.2d 132, 137.
A "willful" act may be described as one done intention-
ally, knowingly, and purposely, without justifiable excuse,
as distinguished from an act done carelessly, thoughtlessly,
heedlessly, or inadvertently. Lobdell Car Wheel Co. v.
Subielski, 125 A. 462, 464, 2 W.W.Harr. (Del.) 462.
A willful differs essentially from a negligent act. The
one is positive and the other negative. Sturm v. Atlantic
Mut. Ins. Co., 38 N.Y.Super.Ct. 317; Thayer v. Denver &
R. G. R. Co., 21 N.M. 330, 154 P. 691, 694. Simple negli-
gence arises merely from heedlessness, and consists simply
of facts of nonfeasance, and is therefore incompatible with
willfulness, which comprises acts of aggressive wrong,
Stauffer v. Schlegel, 74 Ind.App. 431, 129 N.E. 44, 46; and
presupposes a conscious purpose to injure, In re Cunning-
ham, D.C.N.Y., 253 F. 663, 665; Ft. Wayne & Wabash
Valley Traction Co. v. Justus, 180 Ind. 464, 115 N.E. 585,
587; Brittain v. Southern Ry. Co., 167 N.C. 642, 83 S.E.
702, 703.
"Willfulness" implies an act done intentionally and de-
signedly; "wantonness" implies action without regard
to the rights of others, a conscious failure to observe care,
a conscious invasion of the rights of others, willful, unre-
strained action; and "recklessness" a disregard of con-
sequences, an indifference whether a wrong or injury is
done or not, and an indifference to natural and probable
consequences. Jensen v. Denver & R. G. R. Co., 44 Utah,
100, 138 P. 1185, 1188. See, also, Evans v. Illinois Cent. R.
Co., 289 Mo. 493, 233 S.W. 397, 399; Cover v. Hershey
Transit Co., 290 Pa. 551, 139 A. 266, 268; Feore v. Tram-
mel, 212 Ala. 325, 102 So. 529, 533; Crosman v. Southern
Pac. Co., 44 Nev. 2E46, 194 P. 839, 843.
The word "reckless," as applied to negligence, is the
legal equivalent of "willful" or "wanton." Heller v. New
York, N. H. & H. R. Co., C.C.A.N.Y., 265 F. 192, 194. And
see Strough v. Central R. Co. of New Jersey, C.C.A.N.J.,
209 F. 23, 26.
WILL CONTEST. A proceeding sui generis, a
suit in rem, having for its purpose determination
of question of whether there is or is not a will.
Conscious; knowing; done with stubborn pur-
pose, but not with malice. Bundy v. State, 206
N.W. 21, 22, 1141 Neb. 121; American Surety Co.
c rary v. Michael, 233 Mo.App. 797, 109S.W.2d  of New York v. Sullivan, C.C.A.N.Y., 7 F.2d 605,
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WILLFUL
606; Helme v. Great Western Milling Co., 43 Cal.
App. 416, 185 P. 510, 512; Gray v. Alabama Fuel &
Iron Co., 216 Ala. 416, 113 So. 35, 39.
Premeditated; malicious; done with evil in-
tent, or with a bad motive or purpose, or with
indifference to the natural consequences; unlaw-
ful; without legal justification. State v. Vander-
veer, 11-5 Wash. 184, 196 P. 650; State v. Johnson,
194 N.C. 378, 139 S.E. 697, 698; Boyce v. Greeley
Square Hotel Co., 228 N.Y. 106, 126 N.E. 647, 649;
State v. Palmer, 94 Vt. 278, 110 A. 436, 437.
Words which import an exercise of the will, such as
"feloniously," "maliciously," and "unlawfully," will sup-
ply the place of the word "willfully" in an indictment.
Howenstine v. U. S., C.C.A.Cal., 263 F. 1, 3; Chapman v.
Corn., 5 Whart. (Pa.) 427, 34 Am.Dec. 565. Contra, State v.
Waters, Mo.App., 189 S.W. 624; State v. Hyman, 116 Me.
419, 102 A. 231, 232.
WILLFUL AND MALICIOUS INJURY. The
word "willful," as used in this phrase in the Bank-
ruptcy Act July 1, 1898. c. 541, § 17(2), 30 Stat.
550, as amended by the Act of Feb. 5, 1903, c.
487, 32 Stat. 797 (11  § 35), means inten-
tional though not necessarily deliberate. Nunn
v. Drieborg, 235 Mich. 383, 209 N.W. 89, 90; Well-
man v. Mead, 93 Vt. 322, 107 A. 396, 404. Mere
negligence is not enough; In re Roberts, D.C.
Mich., 290 F. 257, 259; In re Byrne, C.C.A.N.Y., 296
F. 98, 100; there must be an intent to commit a
wrong either through actual malice or from which
malice will be implied; McClellan v. Schmidt, D.
C.N.J., 235 F. 986, 987. Such an injury does not
necessarily involve hatred or ill will, as a state of
mind, but arises from intentional wrong commit-
ted without just cause or excuse. In re Wernecke,
D.C.N.Y., 1 F.Supp. 127, 168. It may involve
merely a willful disregard of what one knows to be
his duty, an act which is against good morals and
wrongful in and of itself, and which necessarily
causes injury and is done intentionally. In re
Stenger, D.C.Mich., 283 F. 419, 420; In re Phil-
lips, D.C.Ohio, 298 F. 135, 138.
WILLFUL AND WANTON INJURY. To con-
stitute such injury, act producing injury must
have been knowingly and intentionally committed,
or committed under circumstances evincing reck-
less disregard of safety of person injured. Price
v. Gabel, 162 Wash. 275, 298 P. 444, 447.
WILLFUL INDIFFERENCE TO THE SAFETY
OF OTHERS. Imports an intentional lack of
regard concerning the safety of others, or an in-
tentional doing of something with knowledge that
serious injury is a probable result. People v.
Murray, 58 Cal.App.2d 239, 136 P.2d 389, 391.
WILLFUL MISCONDUCT OF EMPLOYEE. Un-
der Workmen's Compensation Acts, precluding
compensation, means more than mere negligence,
and contemplates the intentional doing of some-
thing with knowledge that it is likely to result in
serious injuries, or with reckless disregard of its
probable consequences. Carroll v. ' Etna Life Ins.
Co., 39 Ga.App. 78, 146 S.E. 788, 789; Black Moun-
tain Corporation v. Higgins, 226 Ky. 7, 10 S.W.2d
46.3, 464.
WILLFUL OR WANTON MISCONDUCT. Fail-
ure to exercise ordinary care to prevent injury to a
person who is actually known to be or reasonably
expected to be within the range of a dangerous
act being done. Georgia Power Co. v. Deese, 78
Ga.App. 704, 51 S.E.2d 724, 728.
WILLFUL OR WANTON NEGLIGENCE. Fail-
ure to exercise ordinary care to prevent injury to
a person who is actually known to be, or reason-
ably is expected to be, within range of a known
danger. Barall Food Stores v. Bennett, 194 Okl.
508, 153 P.2d 106, 109, 110.
WILLFUL TORT. Implies intent or purpose to
injure. Cousins v. Booksbaum, 51 Ohio App. 150,
200 N.E. 133, 135; American Casualty Co. v. Brin-
sky, 51 Ohio App. 298, 200 N.E. 654, 655.
It involves elements of intent or purpose and malice or
ill will, but malice or ill will may be shown by indifference
to safety of others, with knowledge of their danger, or
failure to use ordinary care to avoid injury after acquiring
such knowledge. Hillard v. Western & Southern Life Ins.
Co., 68 Ohio App. 426, 34 N.E.2d 75, 77.
WILLFUL MURDER. The unlawful and inten-
tional killing of another without excuse or miti-
gating circumstances. State v. Dalton, 178 N.C.
779, 101 S.E. 548, 549.
WILLFUL NEGLIGENCE. See Negligence.
WILLINGLY. Voluntarily; unreluctantly; with-
out reluctance, and of one's own free choice. Ed-
wards v. State, 21 Ala.App. 375, 108 So. 639, 640.
See State v. Schwab, 109 Ohio St. 532, 143 N.E.
29, 31. As used in an instruction that one cannot
invoke the doctrine of self-defense if he enters
a fight willingly, it means voluntarily, aggressive-
ly, and without legal excuse. State v. Evans, 194
N.C. 121, 138 S.E. 518, 519.
WILLS ACT. In England. The statute 32 Hen.
VIII. c. 1, passed in 1540, by which persons seized
in fee-simple of lands holden in socage tenure
were enabled to devise the same at their will and
pleasure, except to bodies corporate; and those
who held estates by the tenure of chivalry were
enabled to devise two-third parts thereof.
Also, the statute 7 Wm. IV. & 1 Vict. c. 26,
passed in 1837, and also called "Lord Langdale's
Act." This act permits of the disposition by will
of every kind of interest in real and personal es-
tate, and provides that all wills, whether of real
or of personal estate, shall be attested by two wit-
nesses, and that such attestation shall be suffi-
cient. Other important alterations are effected by
this statute in the law of wills. Mozley & White-
ley.
WINCHESTER MEASURE. The standard meas-
ure of England, originally kept at Winchester. 1
Bl.Comm. 274.
WINCHESTER, STATUTE OF. A statute passed
in the thirteenth year of the reign of Edward I.,
by which the old Saxon law of police was en-
forced, with many additional provisions. 2 Reeve,
Eng.Law, 163; Crabb, Hist.Eng.Law, 189. It re-
quired every man to provide himself with armor
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to aid in keeping the peace; and if it did not
create the offices of high and petty constables, it
recognized and regulated them, and charged them
with duties answering somewhat to those of our
militia officers. The statute took its name from
the ancient capital of the kingdom. It was re-
pealed by the Statute of 7 & 8 Geo. IV. c. 27. See
1 Seld.Essays 153.
WIND SHIELD. On automobiles, the glass be-
tween the two front standards or posts ;—not or-
dinarily including wind deflectors placed outside of
such standards. Hammond v. Benzer Corporation,
D.C.N.Y., 295 F. 908, 912.
WIND UP. To settle the accounts and liquidate
the assets of a partnership or corporation, for the
purpose of making distribution and dissolving the
concern. State v. Norman, 86 Okl. 36, 206 P. 522,
527; State v. Quigley, 93 Okl. 296, 220 P. 918; Bar-
ret v. Skalsky, 118 Kan. 162, 233 P. 1043.
WINDING–UP ACTS. In English law. General
acts of parliament, regulating settlement of cor-
porate affairs on dissolution.
WINDOW. An opening made in the wall of a
building to admit light and air, and to furnish
a view or prospect. Hale v. Ins. Co., 46 Mo.App.
508; Benner v. Benner, 119 Me. 79, 109 A. 376, 377.
The use of this word in law is chiefly in con-
nection with the doctrine of ancient lights and
other rights of adjacent owners.
WINDOW ENVELOPE. One which has on its
face a patch of transparent paper forming a win-
dow through which an address written upon an
inclosure can be seen. Outlook Envelope Co. v.
Samuel Cupples Envelope Co., C.C.A.N.Y., 223 F.
327, 329.
WINDOW TAX. A tax on windows, levied on
houses which contained more than six windows,
and were worth more than £5 per annum; estab-
lished by St. 7 Wm. III. c. 18. St. 14 & 15 Vict.
c. 36, substituted for this tax a tax on inhabited
houses. Wharton.
WINDSHAKES. Cracks in timber that are due
to the wind when the timber stood, or to drying
in the center after the timber is cut. Swartz v.
Bergendahl-Knight Co., 259 Pa. 421, 103 A. 220,
221.
WINDSOR FOREST. A royal forest founded by
Henry VIII.
WINDSTORM. A storm characterized by high
wind, with little or no precipitation. George A.
Hoagland & Co. v. Insurance Co. of North Ameri-
ca, 131 Neb. 105, 267 N.W. 239, 241. A violent
wind. Clark v. Fidelity & Guaranty Fire Corpora-
tion, City Ct., 39 N.Y.S.2d 377, 379, 380.
WINDY SHOTS. In blasting operations, explo-
sions which cause pieces of rock to fly up in the
air. Brede v. Minnesota Crushed Stone Co., 146
Minn. 406, 178 N.W. 820, 821.
WINE. The fermented juice of the grape. State
v. Moore, 5 Blackf. (Ind.) 118; Tux Ginger Ale Co.
v. Davis, 12 Cal.App.2d 73, 54 P.2d 1122. A vinous
liquor, Peretto v. State, 31 Okl.Cr. 319, 238 P. 870,
containing more than 1 per cent. of alcohol, Peo-
ple v. Mueller, 168 Cal. 526, 143 P. 750, 751. Some-
times loosely used as to unfermented juice of the
grape or any fruit used as a beverage. State v.
Rosasco, 103 Or. 343, 205 P. 290, 295. But see
State v. Dennison, 85 W.Va. 261, 101 S.E. 458, 460.
WINTER. A period of three months, whether
reckoned astronomically from the winter solstice,
on December 21, to the vernal equinox, on March
21, or according to the conventional method used
in the United States as including December, Janu-
ary, and February. Saarela v. Hoglund, 198 Ill.
App. 485, 487. In a popular sense, the cold months.
Whitney v. Aronson, 21 Cal.App. 9, 130 P. 700.
WINTER CIRCUIT. An occasional circuit ap-
pointed for the trial of prisoners, in England, and
in some cases of civil causes, between Michael-
mas and Hilary terms.
WINTER HEYNING. The season between 11th
November and 23d April, which is excepted from
the liberty of commoning in certain forests. St. 23
Car. II. c. 3.
WINZE. A vertical or steeply inclined passage-
way driven to connect a mine working with an-
other. Empire Star Mines Co. v. Butler, 62 Cal.
App.2d 49, 145 P.2d 49, 63.
WISBY, LAWS OF. The name given to a code of
maritime laws promulgated at Wisby, then the
capital of Gothland, in Sweden, in the latter part
of the thirteenth century. This compilation re-
sembled the laws of Oleron in many respects, and
was early adopted, as a system of sea laws, by
the commercial nations of Northern Europe. It
formed the foundation for the subsequent code of
the Hanseatic League. A translation of the Laws
of Wisby may be seen in the appendix to 1 Pet.
Adm. And see 3 Kent, Comm. 13. They are also
printed in 30 F.Cas. 1189.
WISH. Eager desire; longing; expression of
desire; a thing desired; an object of desire. Noice
v. Schnell, 101 N.J.Eq. 252, 137 A. 582, 589, 52 A.L.
R. 965. As used in wills, it is sometimes merely
directory or precatory; Colonial Trust Co. v.
Brown, 105 Conn. 261, 135 A. 555, 563; Schill v.
Schill, 101 N.J.Eq. 482, 138 A. 530, 531; and some-
times mandatory; Strout v. Strout, 117 Me. 357,
104 A. 577, 578; being equivalent to "will," Tzeses
v. Tenez Const. Co., 97 N.J.Eq. 501, 128 A. 388, or
to "give" or "devise," Brown v. Brown, 180 N.C.
433, 104 S.E. 889, 890.
WISTA. In Saxon law. Half a hide of land, or
sixty acres.
WIT. To know; to learn; to be informed. Used
only in the infinitive, to wit, which term is equiva-
lent to "that is to say," "namely," or "videlicet."
WITAM. The purgation from an offense by the
oath of the requisite number of witnesses.
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WITAN
WITAN. In Saxon law. Wise men; persons of
information, especially in the laws; the king's ad-
visers; members of the king's council; the opti-
mates, or principal men of the kingdom. 1 Spence,
Eq. Jur. 11, note.
WITCHCRAFT. Under Sts. 33 Hen. VIII. c. 8, and
1 Jac. I. c. 12, the offense of witchcraft, or sup-
posed intercourse with evil spirits, was punish-
able with death. These acts were not repealed
till 1736. 4 Bl.Comm. 60, 61. In Salem, in 1692,
20 persons were put to death by hanging. The last
victims in England were executed in 1716, and the
last in Scotland in 1722. 29 Encyc. Americana,
430, 431; 1 Beard, Rise of Amer. Civilization, 150.
WITE. Sax. A punishment, pain, penalty, mulct,
or criminal fine. Cowell.
An atonement among the early Germans by a
wrong-doer to the king or the community. It is
said to be the germ of the idea that wrong is not
simply the affair of the injured individual, and
is therefore a condition precedent to the growth
of a criminal law. 2 Holdsw. Hist. E. L. 37. See
1 Sel.Essays, Anglo-Amer. L. H. 100.
WITEKDEN. A taxation of the West Saxons, im-
posed by the public council of the kingdom.
WITENA DOM. In Saxon law. The judgment of
the county court, or other court of competent ju-
risdiction, on the title to property, real or personal.
1 Spence, Eq.Jur. 22.
WITENAGEMOTE. (Spelled, also, witenagemot,
wittenagemot, witanagemote, etc.) "The assem-
bly of wise men." This was the great national
council or parliament of the Saxons in England,
comprising the noblemen, high ecclesiastics, and
other great thanes of the kingdom, advising and
aiding the king in the general administration of
government.
It was the grand council of the kingdom, and was held,
generally, in the open air, by public notice or particular
summons, in or near some city or populous town. These
notices or summonses were issued upon determination by
the king's select council, or the body met without notice,
when the throne was vacant, to elect a new king. Subse-
quently to the Norman Conquest it was called commune
concilium regni, curia regis and finally parliament; but
its character had become considerably changed. It was a
court of last resort, more especially for determining dis-
putes between the king and his thanes, and, ultimately,
from all inferior tribunals. Great offenders, particularly
those who were members of or might be summoned to
the king's court, were here tried. The casual loss of title-
deeds was supplied, and a very extensive equity jurisdic-
tion .exercised. 1 Spence, Eq.Jur. 73; 1 Bla.Comm. 147;
1 Reeve, Hist.Eng.Law 7; 9 Co.Pref. It passed out of ex-
istence with the Norman Conquest, and the subsequent
Parliament was a separate growth, and not a continuation
of the Witenagemot. 29 Encyc. Americana, 432.
WITENS. The chiefs of the Saxon lords or
thanes, their nobles, and wise men.
WITH. A word denoting a relation of proximity,
contiguity, or association. White v. White, 183
Va. 239, 31 S.E.2d 558, 561. Sometimes equivalent
to the words, "in addition to," but not synonymous
with "including," as in a complaint demanding a
• specified sum, "with interest." Halpern v. Lang-
rock Bros. Co., 169 App.Div. 464, 155 N.Y.S. 167,
168.
WITH ALL FAULTS. This phrase, used in a
contract of sale, implies that the purchaser as-
sumes the risk of all defects and imperfections,
provided they do not destroy the identity of the
thing sold.
WITH CONSENT. Phrase within a Constitution
providing that Governor shall appoint officers
with consent of senate, requires confirmation by
senate and appointment under such provision is
ineffective until confirmed. State, ex rel. Nagle v.
Stafford, 97 Mont. 275, 34 P.2d 372, 379.
WITH PREJUDICE. The term, as applied to
judgment of dismissal is as conclusive of rights
of parties as if action had been prosecuted to final
adjudication adverse to the plaintiff. Fenton v.
Thompson, 352 Mo. 199, 176 S.W.2d 456, 460.
WITH STRONG HAND. In pleading. A techni-
cal phrase indispensable in describing a forcible
entry in an indictment. No other word or cir-
cumlocution will answer the same purpose. Rex
v. Wilson, 8 Term R. 357.
WITHDRAW. To take away what has been en-
joyed; to take from. Central R. & B. Co. v. State,
54 Ga. 409. To remove. Hamilton v. Kentucky
Distilleries & Warehouse Co., C.C.A.Ky., 288 F.
326, 327.
WITHDRAWAL. Removal of money or securities
from a bank or other place of deposit. Hensch
v. Metropolitan Savings & Loan Co., 50 Ohio App.
25, 197 N.E. 416, 418.
WITHDRAWING A JUROR. In practice. The
withdrawing of one of the twelve jurors from the
box, with the result that, the jury being now
found to be incomplete, no further proceedings
can be had in the cause. The withdrawing of
a juror is always by the agreement of the parties,
and is frequently done at the recommendation of
the judge, where it is doubtful whether the action
will lie; and in such case the consequence is that
each party pays his own costs (in Pennsylvania
it is held that the costs abide the event of the
suit). It is, however, no bar to a future action
for the same cause. 2 Tidd, Pr. 861, 862; 1 Archb.
Pr.K.B. 196; Wabash R. Co. v. McCormick, 23
Ind.App. 258, 55 N.E. 251; People v. Judges of
New York, 8 Cow. (N.Y.) 127; Glendenning v.
Canary, 64 N.Y. 636; Wolcott v. Studebaker, C.C.
Ill., 34 F. 8; 3 Term 657; 1 Cr. M. & R. 64; Tr.
& H. Pr. § 689; Ry. & M. 402; 3 B. & Ad. 349; 3
Chitty, Pr. 917. In American practice, it is usually
a mere method of continuing a case, for some good
reason. The cases are collected in a note in 48 L.
R.A. 432.
WITHDRAWAL OF CHARGES. A failure to
prosecute by the person preferring charges;—dis-
tinguished from a dismissal, which is a determina-
tion of their invalidity by the tribunal hearing
them. Butler v. McSweeney, 222 Mass. 5, 109 N.E.
653, 655.
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WITHOUT
1777
WITHDRAWING RECORD. In practice. The
withdrawing by a plaintiff of the nisi prius or
trial record filed in a cause, just before the trial
is entered upon, for the purpose of preventing
the cause from being tried. This may be done
before the jury are sworn, and afterwards, by
consent of the defendant's counsel. 2 Tidd, Pr.
851; 1 Archb. Pr. K. B. 189; 3 Chit.Pr. 870; 2 C.
& P. 185; 3 Camp. 333.
WITHERNAM. In practice. A taking by way of
reprisal; a taking or a reprisal of other goods, in
lieu of those that were formerly taken and
eloigned or withholden. 2 Inst. 141. A reciprocal
distress, in lieu of a previous one which has been
eloigned. 3 Bl.Comm. 148.
The name of a writ which issues on the return
of elongata to an alias or pluries writ of replevin,
by which the sheriff is commanded to take the
defendant's own goods which may be found in his
bailiwick, and keep them safely, not to deliver
them to the plaintiff until such time as the de-
fendant chooses to submit himself and allow the
distress, and the whole of it to be replevied; and
he is thereby further commanded that he do re-
turn to the court in what manner he shall have
executed the writ. Hamm.N.P. 453; 2 Inst. 140;
Fitzh.N.B. 68, 69.
WITHERSAKE. An apostate, or perfidious rene-
gade. Cowell.
WITHHOLD. To retain in one's possession that
which belongs to or is claimed or sought by an-
other. Fitzpatrick v. Garver, 253 Mo. 189, 161
S.W. 714, 715. To omit to disclose upon request;
as, to withhold information. State v. Sharp, 121
Minn. 381, 141 N.W. 526, 527, 528. To refrain from
paying that which is due. Dupuy v. Board of Edu-
cation of City and County of San Francisco, 106
Cal.App. 533, 289 P. 689, 691.
Withholding means of support from depend-
ents. Made felony by a statute, presupposes
existence or ability to obtain means of support
by accused, and need by alleged dependents from
whom support is withheld. McBrayer v. State,
112 Fla. 415, 150 So. 736, 737.
WITHIN. Into. State v. Warburton, 97 Wash.
242, 166 P. 615, 617. In inner or interior part of, or
not longer in time than. In re White's Estate,
130 Kan. 714, 288 P. 764, 765. Through. Missis-
sippi Cent. R. Co. v. Pace, 109 Miss. 667, 68 So.
926, 927. Inside the limits of. Sacks v. Legg, 219
Ill.App. 144, 148; Ex parte Watson, 82 W.Va. 201,
95 S.E. 648. On. Continental Life Ins. Co. v.
Wilson, 36 Ga.App. 540, 137 S.E. 403.
When used relative to time, has been defined variously
as meaning any time before; at or before; at the end of ;
before the expiration of ; not beyond; not exceeding; not
later than. Glenn v. Garrett, Tex.Civ.App., 84 S.W.2d 515,
516.
The use of the word "within" as a limit of time, or de-
gree, or space, embraces the last day, or degree, or entire
distance, covered by the limit fixed. Rice v. J. H. Beavers
& Co., 196 Ala. 355, 71 So. 659; Ardery v. Dunn, 181 Ind.
225, 104 N.E. 299, 300; Laws N.Y. 1910, c. 347.
WITHOUT. Outside; beyond. Welton v. Mis-
souri, 91 U.S. 277, 23 L.Ed. 347; -Ainslie v. Martin,
Black's Law Dictionary Revised 4th Ed.-112
9 Mass. 456; Collins v. Morgan, C.C.A.Kan., 243
F. 495, 498. In excess of. Milwaukee Western
Fuel Co. v. Industrial Commission of Wisconsin,
159 Wis. 635, 150 N.W. 998, 999.
WITHOUT DAY. A term used to signify that an
adjournment or continuance is indefinite or final,
or that no subsequent time is fixed for another
meeting, or for further proceedings. See Sine Die.
WITHOUT DELAY. Instantly; at once. Rathbun
v. Globe Indemnity Co., 107 Neb. 18, 184 N.W. 903,
908, 24 A.L.R. 191. Also, within the time allowed
by law. See State v. Dolan, Mo.App., 216 S.W. 334.
WITHOUT GIVING COMPENSATION THERE-
FOR. This phrase within automobile guest stat-
ute indicates an intention to exclude application of
"guest" designation not only to one who has paid
cash or equivalent for his transportation but also
to one who pays such recompense as makes it
worth the other's while to furnish the ride. Du-
clos v. Tashjian, 32 Cal.App.2d 444, 90 P.2d 140,
143.
WITHOUT HER CONSENT. This phrase, as used
in the law of rape, is equivalent to "against the
will," and signifies the manifestation of the ut-
most reluctance and greatest resistance on the
woman's part. State v. Catron, 317 Mo. 894, 296
S.W. 141, 143.
WITHOUT IMPEACHMENT OF WASTE. The
effect of the insertion of this clause in a lease
for life is to give the tenant the right to cut tim-
ber on the estate, without making himself there-
by liable to an action for waste. When a tenant
for life holds the land without impeachment of
waste, he is, of course, dispunishable for waste,
whether wilful or otherwise. But still this right
must not be wantonly abused so as to destroy the
estate; and he will be enjoined from committing
malicious waste. Bac.Abr. Waste (N) ; 2 Eq.Cas.
Abr. Waste (A, pl. 8). And see Derham v. Hovey,
195 Mich. 243, 161 N.W. 883, 884, 21 A.L.R. 999.
WITHOUT JUSTIFICATION. In a statute pun-
ishing any parent who willfully or without justi-
fication deserts a child under 16 years of age in
destitute or necessitous circumstances, the term
"without justification" is equivalent to "willfully."
Ex parte Strong, 95 Tex.Cr.R. 250, 252 S.W. 767,
769.
WITHOUT NOTICE. As used of purchasers, etc.,
equivalent to "in good faith." Hunt v. Gragg, 19
N.M. 450, 145 P. 136, 138.
WITHOUT PREJUDICE. Where an offer or ad-
mission is made "without prejudice," or a motion
is denied or a suit dismissed "without prejudice,"
it is meant as a declaration that no rights or privi-
leges of the party concerned are to be considered
as thereby waived or lost except in so far as may
be expressly conceded or decided. See Genet v.
Delaware & H. Canal Co., 170 N.Y. 278, 63 N.E.
350; O'Keefe v. Irvington Real Estate Co., 87 Md.
196, 39 Atl. 428; Olson v. Coalfield School Dist.
No. 16 of Divide County, 54 N.D. 657, 210 N.W.
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WITHOUT
A dismissal "without prejudice" allows a new
suit to be brought on the same cause of action.
Freidenbloom v. McAfee, Tex.Civ.App., 167 S.W.
28; McIntyre v. McIntyre, 205 Mich. 496, 171 N.W.
393, 394.
The words "without prejudice" import into any transac-
tion that the parties have agreed that as between them-
selves the receipt of money by one and its payment by the
other shall not of themselves have any legal effect on the
rights of the parties, but they shall be open to settlement
by legal controversy as if the money had not been paid. In
re Bell, 344 Pa. 223, 25 A.2d 344, 350.
The words "without prejudice", as used in judgment,
ordinarily import the contemplation of further proceedings,
and, when they appear in an order or decree, it shows
that the judicial act is not intended to be res judicata of
the merits of the controversy. Fiumara v. American Sure-
ty Co. of New York, 346 Pa. 584, 31 A.2d 283, 287.
WITHOUT RECOURSE. This phrase, used in
making a qualified indorsement of a negotiable in-
strument, signifies that the indorser means to
save himself from liability to subsequent holders,
and is a notification that, if payment is refused
by the parties primarily liable, recourse cannot
be had to him. See Thompson v. First State
Bank, 102 Ga. 696, 29 S.E. 610; Binswanger v.
Hewitt, 79 Misc, 425, 140 N.Y.S. 143, 145.
An indorser "without recourse" specially declines to
assume any responsibility for payment. Arthur v. Rosier,
217 Mo.App. 382, 266 S.W. 737, 738. He assumes no con-
tractual liability by virtue of the indorsement itself, Kalil
v. Bell, 88 Kan. 666, 129 P. 1135, 1136; and becomes a mere
assignor of the title to the paper, Cameron v. Ham, 23
Ohio App. 359, 155 N.E. 655, 656; but such an indorse-
ment does not indicate that the indorsee takes with notice
of defects, or that he does not take on credit of the other
parties to the note, Robertson v. American Inv. Co., 170
Ark. 413, 279 S.W. 1008. 1010.
Where a note and mortgage are transferred without re-
course, legal effect of words "without recourse" constitutes
indorser a mere assignor subject to no liability except as
an implied guarantor that instruments are genuine, that
he has good title to them, and that he is not aware of any
illegality in them. Home Ins. Co. v. Citizens Bank, 181
Miss. 181, 178 So. 589, 590.
WITHOUT RESERVE. A term applied to a sale
by auction, indicating that no price is reserved.
WITHOUT STINT. Without limit; without any
specified number.
WITHOUT THE STATE. This phrase, in a stat-
ute providing that in computing limitations, the
time during which the defendant shall be without
the state shall be excluded, has no relation to
mere temporary absence from domicile or resi-
dence in the state. Clegg v. Bishop, 105 Conn.
564, 136 A. 102, 104,
WITHOUT THIS, THAT. In pleading. Formal
words used in pleadings by way of traverse, par-
ticularly by way of special traverse, (q. v.,) im-
porting an express denial of some matter of fact
alleged in a previous pleading, including the dec-
laration, plea, replication, etc. Steph.P1. 168, 169,
179, 180. The Latin term is absque hoc. Com.Dig.
Pleader (G 1) ; 1 Chitty, Pl. 576, note a.
WITNESS, v. To subscribe one's name to a deed,
will, or other document, for the purpose of attest-
ing its authenticity, and proving its execution, if
required, by bearing witness thereto.
To see the execution of, as an instrument, and
subscribe it for the purpose of establishing its
authenticity. In re Harter's Estate, 229 Iowa
238, 294 N.W. 357, 360, 362.
WITNESS, n. In general, one who, being present,
personally sees or perceives a thing; a beholder,
spectator, or eyewitness. In re Harter's Estate,
229 Iowa 238, 294 N.W. 357, 362.
One who testifies to what he has seen, heard, or
otherwise observed. Wigginton v. Order of United
Commercial Travelers of America, C.C.A.Ind., 126
F.2d 659, 666.
A person whose declaration under oath (or af-
firmation) is received as evidence for any pur-
pose, whether such declaration be made on oral
examination or by deposition or affidavit. Code
Civ.Proc.Cal. § 1878.
A person attesting genuineness of signature to
document by adding his signature. In re Gorrell's
Estate, 19 N.J.Misc. 168, 19 A.2d 334, 335.
One who is called upon to be present at a trans-
action, as a wedding, or the making of a will,
that he may thereafter, if necessary, testify to
the transaction.
Accused, by availing himself of statute providing that
accused shall be a competent witness at his own request
but not otherwise, assumes position of "witness". State
v. McKinnon, 223 N.C. 160, 25 S.E.2d 606, 609; State v.
Auston, 223 N. C. 203, 25 S.E.2d 613, 614.
Adverse witness. A *itness whose mind dis-
closes a bias hostile to the party examining him.
Brown; Greenough v. Eccles, 5 C.B.(N.S.) 801.
Attesting witness. See Attestation.
Competent witness. See Competent.
Credible witness. See Credible.
Expert witnesses. See Expert Witnesses.
Hostile witness. See that title.
Prosecuting witness. See that title.
Subscribing witness. See that title.
Swift witness. See that title.
Witness to will. One who has attested the will
by subscribing his name thereto. In re Johnson's
Will, 175 Wis. 1, 183 N.W. 888, 889.
WITNESS AGAINST HIMSELF. The federal
constitutional provision that no person shall be
compelled in any criminal case, to be a "witness
against himself" must be applied in a broad spirit
to secure to citizen immunity from self-accusa-
tion and provision applies to all proceedings
Wherein defendant is acting as a witness in any
investigation that requires him to give testimony
that might tend to show him guilty of crime.
U.S.C.A.Const. Amend. 5. United States v. Good-
ner, D.C.Colo., 35 F.Supp. 286, 290.
WITNESSING PART. In a deed or other formal
instrument, is that part which comes after the
recitals, or, where there are no recitals, after the
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WORDS
parties. It usually commences with a reference
to the agreement or intention to be effectuated,
then states or refers to the consideration, and
concludes with the operative words and parcels, if
any. Where a deed effectuates two distinct ob-
jects, there are two witnessing parts. 1 Day.Prec.
Cony . 63, et seq.; Sweet.
WITTINGLY. With knowledge and by design, ex-
cluding only cases which are the result of accident
or forgetfulness, and including cases where one
does an unlawful act through an erroneous belief
of his right. Osborne v. Warren, 44 Conn. 357.
WITWORD. A legally allowed claim, more es-
pecially the right to vindicate ownership or pos-
session by one's affirmation under oath. Vinogra-
doff, Engl. Soc. in 11th Cent. 9.
WOLD. Sax. In England. A down or champaign
ground, hilly and void of wood. Cowell; Blount.
WOLF'S HEAD. In old English law. This term
was used as descriptive of the condition of an out-
law. Such persons were said to carry a wolf's
head, (caput lupinum;) for if caught alive they
were to be brought to the king, and if they de-
fended themselves they might be slain and their
heads carried to the king, for they were no more
to be accounted of than wolves. Termes de la Ley,
"Woolferthfod."
WOMEN. All the females of the human species.
All such females who have arrived at the age of
puberty. Dig. 50, 16, 13.
WONG. Sax. In old records. A field. Spelman;
Cowell.
WdOD. The tough, hard substance of all trees
and shrubs. It includes not only the hard fiber
bundles of trees and shrubs in general, but also
the tougher fibrous components of some herba-
ceous plants. It is a very broad term and includes
not only material obtained from exogenous plants,
but also like substances obtained from palms, from
bamboo (which is a giant grass), and from some
ferns (which are herbaceous plants). Steinhardt
& Bro. v. U. S., 9 Ct.Cust.App. 62, 63.
WOOD LEAVE. A license or right to cut down,
remove, and use standing timber on a given es-
tate or tract of land. Osborne v. O'Reilly, 42
N.J.Eq. 467, 9 A. 209.
WOOD PLEA COURT. A court held twice in the
year in the forest of Clun, in Shropshire, for de-
termining all matters of wood and agistments.
Cowell.
WOOD-CORN. In old records. A certain quan-
tity of oats or other grain, paid by customary ten-
ants to the lord, for liberty to pick up dead or
broken wood. Cowell.
WOOD-GELD. In old English law. Money paid
for the liberty of taking wood in a forest. Cowell.
Immunity from such payment. Spelman.
WOOD-MOTE. In forest law. The old name of
the court of attachments; otherwise called the
"Forty-Days Court." Cowell; 3 Bl.Comm. 71.
WOODS. A forest; land covered with a large and
thick collection of natural forest trees. The old
books say that a grant of "all his woods" (omnes
boscos suos) will pass the land, as well as the
trees growing upon it. Co.Litt. 4b. See Averitt v.
Murrell, 49 N.C. 323; Hall v. Cranford, 50 N.C. 3;
Achenbach v. Johnston, 84 N.C. 264.
WOODSRIDER. This term has been applied to
an overseer of work in the woods for a private
turpentine operator. Griffith v. Hulion, 90 Fla.
582, 107 So. 354, 355.
WOOD-STREET COMPTER. The name of an
old prison in London.
WOODWARDS. Officers of the forest, whose
duty consists in looking after the wood and vert
and venison, and preventing offenses relating to
the same. Manw. 189.
WOODWORK. Objects made of wood and things
produced by the carpenter or joiner's art. Smith
v. National Fire Ins. Co., 175 N.C. 314, 95 S.E.
562, 564.
WOODWORKER. A worker in wood, as a car-
penter, joiner, or cabinetmaker. Smith v. Na-
tional Fire Ins. Co., 175 N.C. 314, 95 S.E. 562, 564.
WOOL-SACK. The seat of the lord chancellor
of England in the house of lords, being a large
square bag of wool, without back or arms, cov-
ered with red cloth. Webster; Brande.
WORDS. Symbols indicating ideas and subject
to contraction and expansion to meet the idea
sought to be expressed. Association for Protec-
tion of Adirondacks v. MacDonald, 253 N.Y. 234,
170 N.E. 902, 903. But labels whose content and
meaning are, continually shifting with the times.
Massachusetts Protective Ass'n v. Bayersdorfer,
C.C.A.Ohio, 105 F.2d 595, 597.
As used in law, this term generally signifies the
technical terms and phrases appropriate to particu-
lar instruments, or aptly fitted to the expression
of a particular intention in legal instruments. See
the subtitles following.
WORDS ACTIONABLE IN THEMSELVES. In
libel and slander, impute the guilt of some offense
for which the party, if guilty, might be indicted
and punished by the criminal courts. Parker v.
Kirkland, 298 I1l.App. 340, 18 N.E.2d 709, 718.
WORDS OF ART. The vocabulary or terminology
of a particular art or science, and especially those
expressions which are idiomatic or peculiar to
it. See Cargill v. Thompson, 57 Minn. 534, 59 N.W.
638.
WORDS OF LIMITATION. See Limitation.
WORDS OF PROCREATION. To create an es-
tate tail by deed, it is necessary that words of
procreation should be used in order to confine the
estate to the descendants of the first grantee, as
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in the usual form of limitation,—"to A. and the
heirs of his body." Sweet.
WORDS OF PURCHASE, See Purchase.
WORK. To exert one's self for a purpose, to put
forth effort for the attainment of an object, to be
engaged in the performance of a task, duty, or the
like. The term covers all forms of physical or
mental exertions, or both combined, for the at-
tainment of some object other than recreation or
amusement. Leathers & Martin v. Conley, La.
App., 157 So. 607, 609. Tennessee Coal, Iron & R.
Co. v. Muscoda Local No. 123, Ala., 64 S.Ct. 698,
703, 705, 321 U.S. 590, 88 L.Ed. 949, 152 A.L.R.
1014.
"Work," so far as it refers to a provision regulating
street trades for children, means selling, exposing or offer-
ing articles for sale, regardless of whether such activity is
carried on under technical employment or for a wage.
Commonwealth v. Prince, 313 Mass. 223, 46 N.E.2d 755,
757.
WORK AND LABOR. The name of one of the
common counts in actions of assumpsit, being
for work and labor done and materials furnished
by the plaintiff for the defendant.
WORK FLOATS. Used to recover sunken logs,
are rafts made of logs with boards nailed across
on which men stand to work. Ledoux v. Joncas,
163 Minn. 498, 204 N.W. 635, 636.
WORK OF ART. As used in section 5 of the
Copyright Act of 1919, 17 U.S.C.A. § 5, relating to
the registration of models or designs for work of
art, does not necessarily mean something display-
ing artistic merit, but means "objet d'art," that
is, something upon which the labors of an artist
as such may have been employed. Jones Bros. Co.
v. Underkoffler, D.C.Pa., 16 F.Supp. 729, 730.
WORK OF NATIONAL IMPORTANCE. Under
the Selective Service Act providing that conscien-
tious objectors should be assigned to such work
means work of value to the nation for the com-
mon defense and general welfare. 50 U.S.C.A.
Appendix § 305 (g). United States ex rel. Zucker
v. Osborne, D.C.N.Y., 54 F.Supp. 984, 986, 987.
WORK OF NECESSITY. Excepted from opera-
tion of Sunday statutes embraces all work rea-
sonably essential to the economic, social or moral
welfare of the people, viewed in light of the hab-
its and customs of the age in which they live and
of the community in which they reside. Francis-
co v. Commonwealth, 180 Va. 371, 23 S.E.2d 234,
238, 239.
WORK PRODUCT. This concept embraces mat-
ter representing work done by attorney in his pro-
fessional capacity in the course of attorney-client
relationship. Lundberg v. Welles, D.C.N.Y., 11
F.R.D. 136, 138.
WORK RELIEF. Wages paid by a city or town
from money specifically appropriated for the pur-
pose or from money provided by the federal gov-
ernment, or any agency thereof, to persons unem-
ployed or whose employment is inadequate to
provide the necessities of life. In re Youngs, 172
Misc. 155, 14 N.Y.S.2d 800, 802.
WORK WEEK. Within Fair Labor Standards
Act, a week during which work is performed.
29 U.S.C.A. § 207. Plourde v. Massachusetts
Cities Realty Co., D.C.Mass., 47 F.Supp. 668, 671.
WORKAWAY. Extra man employed on vessel as
an accommodation to himself. The Tashmoo,
D.C.N.Y., 48 F.2d 366, 368.
WORK-BEAST, or WORK-HORSE. These terms
mean an animal of the horse kind, which can be
rendered fit for service, as well as one of maturer
age and in actual use. Winfrey v. Zimmerman,
8 Bush (Ky.) 587.
WORK-HOUSE. A place where convicts (or pau-
pers) are confined and kept at labor.
WORKING CAPITAL. Cash and other quick as-
sets. Crocker v. Waltham Watch Co., 315 Mass.
397, 53 N.E.2d 230, 237.
WORKING DAYS.
Construction Contracts
The term "working days" may exclude not only
Sundays and holidays, but also days upon which
no work can be done because of weather condi-
tions. Christopher & Simpson Architectural Iron
& Foundry Co. v. E. A. Steininger Const. Co., 200
Mo.App. 33, 205 S.W. 278, 283; F. J. Mumm Con-
tracting Co. v. Village of Kenmore, 104 Misc. 268,
171 N.Y.S. 673.
Maritime Law
Running or calendar days on which law permits
work to be done, excluding Sundays and legal holi-
days. Sherwood v. American Sugar Refining
Co., C.C.A.N.Y., 8 F.2d 586, 588; The Olaf, D.C.
Pa., 248 F. 807, 809.
WORKING FACE. Place in a mine where the
miners actually drill and load ore. Tennessee
Coal, Iron & R. Co. v. Muscoda Local No. 123,
Ala., 64 S.Ct. 698, 700, 321 U.S. 590, 88 L.Ed. 949.
WORKING FOREMAN. Performs same type of
work as those whom he supervises. Zaetz v.
General Instrument Corporation, 21 N.J.Misc. 76,
30 A.2d 504, 506.
WORKING INTEREST. See Royalty.
WORKMAN. One who labors; one employed to
do business for another. Harris v. City of Balti-
more, 151 Md. 11, 133 A. 888, 889; Europe v. Ad-
dison Amusements, 231 N.Y. 105, 131 N.E. 750.
One employed in manual labor, skilled or un-
skilled, an artificer, mechanic, or artisan. Cohen
v. Rosalsky, 230 App.Div. 604, 246 N.Y.S. 299, 301.
The word workmen in provision of Bankruptcy Act re-
garding priority of wage claims must be construed in ac-
cordance with its common and popular meaning, in
which sense it would not include professional persons.
Bankr.Act § 64, sub. a(2), 11 U.S.C.A. § 104, sub. a(2). In
re Paradise Catering Corporation, D.C.N.Y., 36 F.Supp.
974, 975.
Workmen's Compensation Act
The term "workman" in the Workmen's Com-
pensation Act means, as the act states, one who
engages to furnish services subject to the control
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of an employer, and the relation necessary to con-
stitute one an employer and another a workman
under the act is the relation of master and servant
originating in a contract for personal services,
subject to complete control of the details of the
work and the mode of its performance. Land-
berg v. State Industrial Accident Commission,
107 Or. 498, 215 P. 594, 596.
WORKMEN'S COMPENSATION. Name com-
monly used to designate the method and means
created by statutes for giving greater protection
and security to the workman and his dependents
against injury and death occurring in the course
of employment. United Air Lines Transport Cor-
poration v. Industrial Commission, 107 Utah 52, 151
P.2d 591, 594. It is not health insurance, and was
not intended to compensate for disability through
sickness or disease not caused by accidental injury
arising out of and in course of employment. Gum-
tow v. Kalamazoo Motor Express, 266 Mich. 16,
253 N.W. 198.
WORKMEN'S COMPENSATION ACTS. Laws
passed in most of the states of the Union which
provide for fixed awards to employees or their
dependents in case of industrial accidents and
dispense with proof of negligence and legal ac-
tions. Some of the acts go beyond the simple
determination of the right to compensation, and
provide insurance systems, either under state su-
pervision or otherwise.
Under the acts, methods are usually prescribed
for the expression by employers and workmen of
their preference as to the acceptance or rejection
of the compensation system. This ranges from
each workman filing a written rejection to a pre-
sumed acceptance in the absence of formal rejec-
tion.
Under the elective system in most of the states,
it is made an inducement, that where employers
refuse to come within the provisions of the com-
pensation law, the customary defenses to actions
for injuries shall not be allowed them.
WORKMEN'S COMPENSATION LOSS. See
Loss.
WORKS. Sometimes, a mill, factory, or other
establishment for performing industrial labor of
any sort (South St. Joseph Land Co. v. Pitt, 114
Mo. 135, 21 S.W. 449) ; also, a building, structure,
or erection of any kind upon land, as in the civil-
law phrase "new works. PP
New Works
A term of the civil law comprehending every
sort of edifice or other structure which is newly
commenced on a given estate or lot. Its impor-
tance lies chiefly in the fact that a remedy is
given ("denunciation of new works") to an adja-
cent proprietor whose property would be injured
or subjected to a more onerous servitude if such
a work were allowed to proceed to completion.
Public Works
Works, whether of construction or adaptation,
undertaken and carried out by the national, state,
or municipal authorities, and designed to sub-
serve some purpose of public necessity, use, or
convenience; such as public buildings, roads, aque-
ducts, parks, etc. Ellis v. Common Council, 123
Mich. 567, 82 N.W. 244; Chattanooga & Tennes-
see River Power Co. v. U. S., C.C.A.Tenn., 209 F.
28, 29. All fixed works constructed for public
use. State v. A. H. Read Co., 33 Wyo. 387, 240 P.
208, 211. The term usually relates to the con-
struction of public improvements and not to their
maintenance or operation. State v. Peters, 112
Ohio St. 249, 147 N.E. 81, 83.
WORKSHOP. Within Workmen's Compensation
Acts, a room or place wherein power-driven ma-
chinery is employed and manual labor is exer-
cised by way of trade for gain or otherwise.
Remsnider v. Union Savings & Trust Co., 89 Wash.
87, 154 P. 135, 136, Ann.Cas.1917D, 40.
It must be one provided or operated by the employer
or one over which he has control or supervision. City of
Hobart v. Wagoner, 191 Okl. 689, 132 P.2d 926, 927.
WORLD. This term sometimes denotes all per-
sons whatsoever who may have, claim, or acquire
an interest in the subject-matter; as in saying
that a judgment in rem binds "all the world."
WORLDLY. Of or pertaining to the world or the
present state of existence; temporal; earthly;
devoted to, interested in, or connected with this
present life, and its cares, advantages, or
pleasures, to the exclusion of those of a future
life. Anderson v. Gibson, 116 Ohio St. 684, 157
N.E. 377, 379, 54 A.L.R. 92. Concerned with en-
joyment of this present existence; secular; not
religious, spiritual, or holy. Commonwealth v.
American Baseball Club of Philadelphia, 290 Pa.
136, 138 A. 497, 499, 53 A.L.R. 1027.
WORLDLY EMPLOYMENT OR BUSINESS,
which, on Sunday, is prohibited by statutes in some
states, includes the operation of a motion picture
show under the New Jersey Vice and Immorality
Act, § 1 (4 Comp.St.1910, p. 5712), Rosenberg v.
Arrowsmith, 82 N.J.Eq. 570, 89 A. 524, 525, and
one who does this habitually is guilty of keeping
a disorderly house. State v. Rosenberg, N.J.Sup.,
115 A. 203. The words also include, in Delaware,
under Rev.Code 1915, § 4784, the playing of foot-
ball on Sunday, knowing that tickets of admission
were being offered for sale and sold to the public,
Walsh v. State, Del.Super., 136 A. 160, 163, and, in.
Pennsylvania, professional baseball, Common-
wealth v. American Baseball Club of Philadelphia,
200 Pa. 136, 138 A. 497, 499, 53 A.L.R. 1027. But
in the latter state it has been thought, at least
by the lower courts, that notwithstanding Act
April 22, 1794 (3 Smith's Laws, p. 177), § 1 (18
P.S. § 1991) one may lawfully purchase a cigar
on Sunday. Commonwealth v. Hoover, 25 Pa.
Super.Ct. 133, 134.
WORRYING CATTLE OR SHEEP. Within stat-
utes providing that any one finding a dog, nut on
the premises of its owner, worrying cattle or
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sheep, may kill the dog, means to run after; to
chase; to bark at. Bass v. Nofsinger, 222 Wis.
480, 269 N.W. 303, 304; Failing v. People, 105 Colo.
399, 98 P.2d 865, 867.
WORSHIP. Any form of religious service show-
ing reverence for Divine Being, or exhortation . to
obedience to or following of the mandates of such
Being. People on Complaint of Doyle v. Smith,
259 N.Y. 48, 180 N.E. 891. Religious exercises par-
ticipated in by a number of persons assembled for
that purpose, the disturbance of which is a statu-
tory offense in many states. Hamsher v. Hamsher,
132 Ill. 273, 22 N.E. 1123, 8 L.R.A. 556; State v.
District Board, 76 Wis. 177, 44 N.W. 967, 7 L.R.A.
330, 20 Am.St.Rep. 41; State v. Buswell, 40 Neb.
158, 58 N.W. 728, 24 L.R.A. 68; State v. Norris,
59 N.H. 536; Woodall v. State, 4 Ga.App. 783, 62
S.E. 485.
English Law
A title of honor or dignity used in addresses to
certain magistrates and other persons of rank or
office. Co. 2d Inst. 666; Bacon, Abr. Misnomer
(A 2).
Public Worship
This term may mean the worship of God, con-
ducted and observed under public authority; or
it may mean worship in an open or public place,
without privacy or concealment; or it may mean
the performance of religious exercises, under a
provision for an equal right in the whole public
to participate in its benefits; or it may be used in
contradistinction to worship in the family or the
closet. In this country, what is called "public
worship" is commonly conducted by voluntary so-
cieties, constituted according to their own notions
of ecclesiastical authority and ritual propriety,
opening their places of worship, and admitting to
their religious services such persons, and upon
such terms, and subject to such regulations, as
they may choose to designate and establish. A
church absolutely belonging to the public, and
in which all persons without restriction have
equal rights, such as the public enjoy in highways
or public landings, is certainly a very rare institu-
tion. Attorney General v. Merrimack Mfg. Co., 14
Gray (Mass.) 586.
WORSTED. Primarily and popularly, a yarn or
fabric made wholly of wool. Federal Trade Com-
mission v. Winsted Hosiery Co., 42 S.Ct. 384, 385,
258 U.S. 483, 66 L.Ed. 729.
WORT. Mash; wash; specifically, the mash after
the malt, or other active ingredient, has been add-
ed, either before or during fermentation. Pack v.
State, 116 Or. 416, 241 P. 390, 392.
WORT or WORTH. A curtilage or country farm.
WORTH. The quality of a thing which gives it
value. McLane v. Pittsburg Rys. Co., 230 Pa. 29,
79 A. 237, 238. Although "worth" in some connec-
tions may mean more than pecuniary value, in
law it means that sum of valuable qualities which
renders a thing valuable and useful expressed in
the current medium of the country; value. Duke
v. City of Anniston, 5 Ala.App. 348, 60 So. 447.
Furnishing an equivalent for. Herb v. Hallowell,
304 Pa. 128, 154 A. 582, 585.
WORTHIER TITLE. At common law where tes-
tator undertook to devise to an heir exactly same
interest in land as such heir would take by de-
scent, descent was regarded as the "worthier ti-
tle" and heir took by descent rather than by de-
vise. Jones v. Petrie, 156 Kan. 241, 132 P.2d 396,
398.
WORTHIEST OF BLOOD. In the English law of
descent. A term applied to males, expressive of
the preference given to them over females. See
2 B1.Comm. 234-240. See some singular reasons
given for this in Plowd. 305.
WORTHING OF LAND. A certain quantity of
land so called in the manor of Kingsland, in Here-
ford. The tenants are called "worthies." Whar-
ton.
WORTHLESS. Destitute of worth, of no value
or use. Spring City Foundry Co. v. Commission-
er of Internal Revenue, 54 S.Ct. 644, 292 U.S. 182,
78 L.Ed. 1200.
WORTHY. Having worth; possessing merit;
valuable; deserving of honor, or the 'ike; of high
station,; of high social position; deserved, merit-
ed. Woodstown Nat. Bank and Trust Co. v. Snel-
baker, 136 N.J.Eq. 62, 40 A.2d 222, 227.
WOULD. A word sometimes expressing what
might be expected. Taylor v. Metropolitan St.
Ry. Co., 256 Mo. 191, 165 S.W. 327, 331. Often
interchangeable with the word "should," Barnett
v. Savannah Electric Co., 15 Ga.App. 270, 82 S.E.
910, 911, but not with "could," Gehrig v. Chicago
& A. R. Co., 201 Ill.App. 287, 293.
WOUND. An injury to the body of a person or
animal, especially one caused by violence, by
which the continuity of the covering, as skin, mu-
cous membrane, or conjunctiva, is broken. Gas-
perino v. Prudential Ins. Co. of America, Mo.App.,
107 S.W.2d 819, 827. Any breaking up or disper-
sion, or disintegration of the natural continuity
of a tissue of the body. Gasperino v. Prudential
Ins. Co. of America, Mo.App., 107 S.W.2d 819, 827.
Also injuries of every kind which affect the body,
whether they are cuts, lacerations, fractures, or
bruises. State v. Hammerli, Kan.Sup., 58 P. 559;
Gatlin v. State, 18 Ga.App. 9, 89 S.E. 345. Also,
any lesion of the body, Robinson v. Masonic Pro-
tective Ass'n, 87 Vt. 138, 88 A. 531, 47 L.R.A.,N.S.,
924, a "lesion" being a hurt, loss, or injury. People
v. Durrand, 307 Ill. 611, 139 N.E. 78, 83.
WOUNDED FEELINGS. Such as result from in-
dignities to self-respect, sensibilities, or pride of
a person, as distinguished from usual mental pain
and suffering consequent to physical injury. In-
terstate Life & Accident Co. v. Brewer, 56 Ga.App.
599, 193 S.E. 458, 464.
WOUNDING. An aggravated species of assault
and battery, consisting in one person giving an-
other some dangerous hurt. 3 Bl.Comm. 121.
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WRATH. Not merely anger, but violent anger.
Jerald v. Houston, 124 Kan. 657, 261 P. 851, 856.
WRECCUM MARIS SIGNIFICAT ILLA BONA
QUIE NAUFRAGIO AD TERRAM PELLUN-
TUR. A wreck of the sea signifies those goods
which are driven to shore from a shipwreck.
WRECK. To destroy, disable, or seriously dam-
age. Zohner v. Sierra Nevada Life and Casualty
Co., 114 Cal.App. 85, 299 P. 749, 751. To reduce to
a wreck or ruinous state by any kind of violence;
to overthrow, shatter, or destroy; to cause to
crash or suffer ruin, synonymous with ruin,
smash, and demolish. Its antonyms are save,
salvage, and preserve. Star Mfg. Co. v. Quarries,
172 Okl. 550, 46 P.2d 497, 498. Destruction, dis-
organization, or serious injury of anything, es-
pecially by violence. Houston Printing Co. v.
Hunter, Tex.Civ.App., 105 S.W.2d 312, 317.
Goods cast ashore by the sea, and not claimed
by the owner within a year, or other specified peri-
od; which, in such case, become the property of
the state. 2 Kent, Comm. 322; Proctor v. Adams,
113 Mass. 376, 18 Am.Rep. 500. The term applies
to property cast upon land by the sea. Baker v.
Hoag, 7 N.Y. 555, 59 Am.Dec. 431. To jetsam, flot-
sam, and ligan. Murphy v. Dunham, D.C.Mich.,
38 F. 503.
Common Law
Goods cast ashore from a wrecked vessel, where
no living creature has escaped from the wreck
alive; and which are forfeited to the crown, or to
persons having the franchise of wreck. Cowell.
But if claimed by the true owner within a year
and a day the goods, or their proceeds, must be re-
stored to him, by virtue of stat. Westm. I., 3 Edw.
I. c. 4.
Maritime Law
A ship becomes a wreck when, in consequence
of injuries received, she is rendered absolutely
unnavigable, or unable to pursue her voyage, with-
out repairs exceeding the half of her value. Wood
v. Insurance Co., 6 Mass. 479, 4 Am.Dec. 163; Col-
lard v. Eddy, 17 Mo. 355; Baker v. Hoag, 7 N.Y.
558, 59 Am.Dec. 431; Peele v. Insurance Co., 19 F.
Cas. 104; Lacaze v. State, 1 Add., Pa., 99.
A "wrecked vessel," however, in common phraseology,
includes a sunken vessel. See Gilchrist v. Godman, D.C.
Ill., 79 F. 970; Act March 3, 1899, § 15 (33 USCA § 409) ;
The R. J. Moran, C.C.A.N.Y., 299 F. 500; Thames Tow-
boat Co. v. Fields, D.C.N.Y., 287 F. 155.
Wreck Commissioners
Persons appointed by the English lord chancel-
lor under the merchant shipping act, 1876, (section
29,) to hold investigations at the request of the
board of trade into losses, abandonments, dam-
ages, and casualties of or to ships on or near the
coast of the United Kingdom, whereby loss of
life is caused. Sweet.
WRECKER. Motor vehicles equipped for remov-
ing wrecked or disabled vehicles. Gossett v. Van
Egmond, 176 Or. 134, 155 P.2d 304, 312.
WRECKFREE. Exempt from the forfeiture of
shipwrecked goods and vessels to the king. Cow-
ell.
WRENCH. Violent twist; a sprain and injury by
twisting as in a joint. Traders & General Ins. Co.
v. Lincecum, Tex.Civ.App., 126 S.W.2d 692, 695.
WRESTLING. Engaging in a contest, usually be-
tween two persons, who seek to throw each other
to the ground or floor, commonly in such a manner
that one contestant's shoulders are held against
the ground or floor. Jacobs v. Loyal Protective
Ins. Co., 97 Vt. 516, 124 A. 848, 852.
WRINKLE. A stria; furrow; channel; hollow;
depression; rut; cup; pocket; dimple. Maxim
Mfg. Co. v. Imperial Mach. Co., C.C.A.IIL, 286 F.
79, 83.
WRIST-DROP. A form of paralysis of the hand
and wrist resulting from an affection of the nerve
which supplies the muscles of the forearm, wrist,
and hand. Freeman v. Chicago, M. & St. P. Ry.
Co., 52 Mont. 1, 154 P. 912, 913.
WRIT. A precept in writing, couched in the form
of a letter, running in the name of the king, presi-
dent, or state, issuing from a court of justice, and
sealed with its seal, addressed to a sheriff or other
officer of the law, or directly to the person whose
action the court desires to command, either as the
commencement of a suit or other proceeding or as
incidental to its progress, and requiring the per-
formance of a specified act, or giving authority
and commission to have it done.
A mandatory precept issuing from court of
justice. Poirier v. East Coast Realty Co., 84 N.H.
461, 152 A. 612, 613. Process. State ex rel. Wall-
ing v. Sullivan, 245 Wis. 180, 13 N.W.2d 550, 555.
For the names and description of various par-
ticular writs, see the titles below.
Old English Law
An instrument in the form of a letter; a letter
or letters of attorney. This is a very ancient sense
of the word.
In the old books, "writ" is used as equivalent to
"action;" hence writs are sometimes divided into
real, personal, and mixed.
Scotch Law
A writing; an instrument in writing, as a
deed, bond, contract, etc. 2 Forb. Inst. pt. 2, pp.
175-179.
General
Alias writ. A second writ issued in the same
cause, where a former writ of the same kind has
been issued without effect.
Close writ. In English law, a name given to
certain letters of the sovereign, sealed with his
great seal and directed to particular persons and
for particular purposes, which, not being proper
for public inspection, were closed up and sealed on
the outside; also, a writ directed to the sheriff
instead of to the lord. 2 BLComm. 346; 3 Reeve,
Eng. Law. 45.
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Concurrent writs. Duplicate originals, or sev-
eral writs running at the same time for the same
purpose, for service on or arrest of a person, when
it is not known where he is to be found; or for
service on several persons, as when there are
several defendants to an action. Mozley & Whit-
ley.
Judicial writs. In English practice. The capias
and all other writs subsequent to the original writ
not issuing out of chancery, but from the court to
which the original was returnable. Being ground-
ed on what had passed in that court in conse-
quence of the sheriff's return, they were called
judicial writs, in contradistinction to the writs
issued out of chancery, which were called original
writs. 3 Bl.Comm. 282. Such writs as issue un-
der the private seal of the courts, and not under
the great seal of England, and are tested or wit-
nessed, not in the king's name, but in the name of
the chief judge of the court out of which they is-
sue. The word "judicial" is used in contradis-
tinction to "original;" original writs being such
as issue out of chancery under the great seal,
and are witnessed in the king's name. See 3 Bl.
Comm. 282. Pullman's Palace-Car Co. v. Wash-
burn, C.C.Mass., 66 F. 792.
Junior writ. One which is issued, or comes to
the officer's hands, at a later time than a similar
writ, at the suit of another party, or on a different
claim, against the same defendant.
Original writ. In English practice. An original
writ was the process formerly in use for the com-
mencement of personal actions. It was a manda-
tory letter from the king, issuing out of chancery,
sealed with the great seal, and directed to the
sheriff of the county wherein the injury was com-
mitted, or was supposed to have been committed,
requiring him to command the wrong-doer or ac-
cused party either to do justice to the plaintiff or
else to appear in court and answer the accusation
against him. This writ is now disused, the writ
of summons being the process prescribed by the
uniformity of process act for commencing per-
sonal actions; and under the judicature act, 1873,
all suits, even in the court of chancery, are to be
commenced by such writs of summons. Brown.
Patent writ. In old practice, an open writ; one
not closed or sealed up.
Peremptory writ. An original writ, called from
the words of the writ a "si to fecerit securum," and
which directed the sheriff to cause the defendant
to appear in court without any option given him,
provided the plaintiff gave the sheriff security ef-
fectually to prosecute his claim. The writ was
very occasionally in use, and only where nothing
was specifically demanded, but only a satisfac-
tion in general; as in the case of writs of tres-
pass on the case, wherein no debt or other spe-
cific thing was sued for, but only damages to be
assessed by a jury. Brown.
Prerogative writs. Those issued by the exercise
of the extraordinary power of the crown (the
court, in modern practice) on proper cause shown;
namely, the writs of procedendo, mandamus, pro-
hibition, quo warranto, habeas corpus, and cer-
tiorari.
WRIT DE BONO ET MALO. See De Bono et
Malo; Assize.
WRIT DE EJECTIONE FIRMAE. See Ejectione
Firmw.
WRIT DE HIERETICO COMBURENDO. See De
Haeretico Comburendo.
WRIT DE HOMINE REPLEGIANDO. See De
Homine Replegiando.
WRIT DE ODIO ET ATIA. See De Odio et Atia.
WRIT DE RATIONABILI PARTE BONORUM.
See De Rationabili Parte Bonorum.
WRIT OF AD QUOD DAMNUM. See Ad Quod
Damnum.
WRIT OF ASSISTANCE. The name of a writ
which issues from the court of chancery, in aid
of the execution of a judgment at law, to put the
complainant into possession of lands adjudged ta
him, when the sheriff cannot execute the judg-
ment. Emerick v. Miller, Ind.App., 62 N.E. 285;
Hagerman v. Heltzel, 21 Wash. 444, 58 R 580;
Marblehead Land Co. v. Los Angeles County, D.C..
Cal., 276 F. 305.
A form of process issued by an equity court
to transfer the possession of lands, title or posses-
sion to which it has previously adjudicated, as a
means of enforcing its decree, and performs the
same office in a suit in equity as an execution in
an action at law. Burney v. Lee, 57 Ariz. 41, 110
P.2d 554, 556. Its office is confined to lend aid to
original equity jurisdiction, and the writ cannot
be employed as a substitute for other common-law
or statutory actions. Patterson v. McKay, 202
Ark. 241, 150 S.W.2d 196. It is essentially a man-
datory injunction, effect of which is to bring about
a change in the possession of realty—it dispossess-
es the occupant and gives possession to one ad-
judged entitled thereto by the court. Dusbabek
v. Local Building & Loan Ass'n, 178 Okl. 592, 63
P.2d 756, 759.
A "writ of assistance" is equivalent to the writ of ha-
bere facias possessionem at law, and issues as of course
without notice, so far as the parties to the record are con-
cerned, when necessary to execute a decree. Gardner v.
Duncan, 104 Miss. 477, 61 So. 545, 546.
While the office of both a writ of assistance and a writ
of possession is to put the party entitled thereto into the
possession of property, the former issues from equity and
the latter from law. Southern State Bank v. Leverette,
187 N.C. 743, 123 S.E. 68, 70.
An ancient writ issuing out of the exchequer.
Moz. & W. A writ issuing from the court of ex-
chequer to the sheriff commanding him to be in
aid of the king's tenants by knight's service, or
the king's collectors, debtors, or accountants,
to enforce payment of their own dues, in order to
enable them to pay their own dues to the king. 1
Madox, Hist. Exch. 675.
WRIT OF ASSOCIATION. In English practice.
A writ whereby certain persons (usually the clerk
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of assize and his subordinate officers) are directed
to associate themselves with the justices and ser-
jeants; and they are required to admit the said
persons into their society in order to take the as-
sizes. 3 Bl.Comm. 59.
WRIT OF ATTACHMENT. A writ employed to
enforce obedience to an order or judgment of the
court. It may take the form of commanding the
sheriff to attach the disobedient party and to have
him before the court to answer his contempt.
Smith, Act. 176.
In its generic sense, any mesne civil process in
the nature of a writ on which property may be at-
tached, including trustee process. Smith v. Smith,
120 Me. 379, 115 A. 87, 88. See, also, Attachment.
WRIT OF CONSPIRACY. A writ which anciently
lay against persons who had conspired to injure
the plaintiff, under the same circumstances which
would now give him an action on the case. It
did not lie at common law, in any case, except
when the conspiracy was to indict the party either
of treason or felony; all the other cases of con-
spiracy in the books were but actions on the case.
Hutchins v. Hutchins, 7 Hill (N.Y.) 104.
WRIT OF COVENANT. A writ which lies where
a party claims damages for breach of covenant;
1. e., of a promise under seal.
WRIT OF DEBT. A writ which lies where the
party claims the recovery of a debt; i. e., a liqui-
dated or certain sum of money alleged to be due
to him.
This is debt in the debet, which is the principal and
only common for. There is another species mentioned in
the books, called the debt in the detinet, which lies for the
specific recovery of goods under a contract to deliver them.
1 Chitty, Pl. 101.
WRIT OF DECEIT. The name of a writ which
lies where one man has done anything in the
name of another, by which the latter is damnified
and deceived. Fitzh.Nat.Brev. 95, E.
WRIT OF DELIVERY. A writ of execution em-
ployed to enforce a judgment for the delivery of
chattels. It commands the sheriff to cause the
chattels mentioned in the writ to be returned to
the person who has obtained the judgment; and,
if the chattels cannot be found, to distrain the
person against whom the judgment was given un-
til he returns them. Smith, Act. 175; Sweet.
WRIT OF DETINUE. A writ which lies where a
party claims the specific recovery of goods and
chattels, or deeds and writings, detained from
him. This is seldom used; trover is the more
frequent remedy, in cases where it may be
brought.
WRIT OF DOWER. This is either a writ of dower
unde nihil habet, which lies for a widow, com-
manding the tenant to assign her dower, no part
of which has yet been set off to her; or a writ of
right of dower, whereby she seeks to recover the
remainder of the dower to which she is entitled,
part having been already received from the ten-
ant. This latter writ is seldom used.
WRIT OF EJECTMENT. The writ in an action of
ejectment, for the recovery of lands. See Eject-
ment.
WRIT OF ENTRY. A real action to recover the
possession of land where the tenant (or owner)
has been disseised or otherwise wrongfully dis-
possessed. If the disseisor has aliened the land,
or if it has descended to his heir, the writ of entry
is said to be in the per, because it alleges that the
defendant (the alienee or heir) obtained posses..
sion through the original disseisor. If two alien-
ations (or descents) have taken place, the writ
is in the per and cui, because it alleges that the
defendant (the second alienee) obtained posses-
sion through the first alienee, to whom the origi-
nal disseisor had aliened it. If more than two
alienations (or descents) have taken place, the
writ is in the post, because it simply alleges that
the defendant acquired possession after the origi-
nal disseisin. Co.Litt. 238b; 3 Bl.Comm. 180.
The writ of entry was abolished, with other real
actions, in England, by St. 3 & 4 Wm. IV. c. 27,
§ 36, but is still in use in a few of the states of
the Union. Sweet. See, also, Entry, Writ of.
WRIT OF ERROR. A writ issued from a court of
appellate jurisdiction, directed to the judge or
judges of a court of record, requiring them to re-
mit to the appellate court the record of an action
before them, in which a final judgment has been
entered, in order that examination may be made
of certain errors alleged to have been committed,
and that the judgment may be reversed, correct-
ed, or affirmed, as the case may require. Siegel-
schiffer v. Penn Mut. Life Ins. Co., C.C.A.N.Y.,
248 F. 226, 228; Ward v. Williams, 270 Ill. 547, 110
N.E. 821, 823; Board of County Com'rs of Har-
ford County v. Jay, 122 Md. 324, 89 A. 715, 717.
It is brought for supposed error in law apparent
on record and takes case to higher tribunal, which
affirms or reverses. Chambers v. State, 117 Fla.
642, 158 So. 153. It is commencement of new suit
to set aside judgment, and is not continuation of
suit to which it relates. Winchester v. Winn, 225
Mo.App. 288, 29 S.W.2d 188, 190. And unless
abolished by statute, is writ of right applicable to
all cases in which jurisdiction is exercised accord-
ing to course of common law, but is inapplicable
to cases not known to or in derogation of common
law, unless otherwise provided by statute. Free-
port Motor Casualty Co. v. Madden, 354 Ill. 329,
188 N.E. 415, 416.
"Appeal" is a process of civil law origin that entirely re-
moves cause to appellate court subjecting facts as well as
law to review and retrial, while "writ of error" is a proc-
ess of common-law origin and removes nothing to appellate
court for re-examination except the law. Whidden v. Ab-
bott, 119 Fla. 25, 160 So. 475.
WRIT OF ERROR CORAM NOBIS. A common-
law writ, the purpose of which is to correct a
judgment in the same court in which it was ren-
dered, on the ground of error of fact. Washing-
ton v. State, 92 Fla. 740, 110 So. 259, 262; People v.
Black, 89 Cal.App. 225, 264 P. 346; for which the
statute provides no other remedy, which fact did
not appear of record, Ernst v. State, 181 Wis. 155,
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193 N.W. 978; or was unknown to the court when
judgment was pronounced, and which, if known,
would have prevented the judgment, and which
was unknown, and could not have been known to
the party by the exercise of reasonable diligence in
time to have been otherwise presented to the
court, unless he was prevented from so presenting
them by duress, fear, or other sufficient cause,
Nickels v. State, 86 Fla. 208, 98 So. 502, 504; Smul-
ski v. H. Feinberg Furniture Co., Del.Super., 193
A. 585, 587; as where judgment is rendered
against a party after his death, or an infant not
properly represented by guardian, or a feme
covert where common-law disability still exists, or
where some defect exists in the process or the ex-
ecution thereof. Schneider v. Schneider, Mo.App.,
273 S.W. 1081, 1083; 1 Saund. 101; Steph.P1.
*119; Day v. Hamburgh, 1 Browne, Pa. 75.
An ordinary "writ of error" is brought for a supposed
error in law apparent on the record, and takes the case to
a higher tribunal where the question is to be decided and
the judgment, sentence or decree is to be affirmed or re-
versed, while the "writ of error coram nobis" is brought
for an alleged error in fact not appearing on the record
and lies to the same court in order that it may correct the
error, which it is presumed would not have been committed
had the fact been brought to the court's notice in the first
instance. State v. Wagner, 232 Wis. 138, 286 N.W. 544, 545.
At common law in England, it issued from the Court of
King's Bench to a judgment of that court. Its principal
aim is to afford the court in which an action was tried
an opportunity to correct its own record with reference to
a vital fact not known when the judgment was rendered.
Lamb v. State, 91 Fla. 396, 107 So. 535, 537, 538; Rhodes
v. State, 199 Ind. 183, 156 N.E. 389, 392. It is also said that
at common law it lay to correct purely ministerial errors
of the officers of the court. Cramer v. Illinois Commercial
Men's Ass'n, 260 Ill. 516, 103 N.E. 459, 461.
WRIT OF ERROR CORAM VOBIS. This writ,
at the English common law, is distinguished from
"writ of error coram nobis," in that the former is-
sued from the Court of King's Bench to a judg-
ment of the Court of Common Pleas, whereas the
latter issued from the Court of King's Bench to a
judgment of that court. Lamb v. State, 107 So.
535, 537, 91 Fla. 396.
WRIT OF EXECUTION. A writ to put in Three
the judgment or decree of a court.
WRIT OF EXIGI FACIAS. See Exigent.
WRIT OF FALSE JUDGMENT. A writ which
appears to be still in use to bring appeals to the
English high court from inferior courts not of
record proceeding according to the course of the
common law. Archb.Pr. 1427.
WRIT OF FORMEDON. A writ which lies for
the recovery of an estate by a person claiming as
issue in tail, or by the remainder-man or reversion-
er after the termination of the entail. See Forme-
don.
WRIT OF INQUIRY. In common-law practice. A
writ which issues after the plaintiff in an action
has obtained a judgment by default, on an unliq-
uidated claim, directing the sheriff, with the aid
of a jury, to inquire into the amount of the plain-
tiff's demand and assess his damages. Lennon v.
Rawitzer, 57 Conn. 583, 19 A. 334; Havens v. Hart-
ford & N. R. Co., 28 Conn. 70; McGowin v. Dick-
son, 182 Ala. 161, 62 So. 685, 688.
WRIT OF MAINPRIZE, or MAINPRISE. In
English law. A writ directed to the sheriff, (either
generally, when any man is imprisoned for a bail-
able offense and bail has been refused, or specially,
when the offense or cause of commitment is not
properly bailable below,) commanding him to take
sureties for the prisoner's appearance, commonly
called "mainpernors," and to set him at large. 3
Bl.Comm. 128. See, also, Mainprise.
WRIT OF MANDAMUS. See Mandamus.
WRIT OF MESNE. In old English law. A
writ which was so called by reason of the words
used in the writ, namely, "Unde idem A. qui me-
dius est inter C. et prcefatum B."; that is, A.,
who is mesne between C., the lord paramount,
and B., the tenant paravail. Co.Litt. 100a.
WRIT OF POSSESSION. This is the writ of exe-
cution employed to enforce a judgment to recover
the possession of land. It commands the sheriff
to enter the land and give possession of it to the
person entitled under the judgment. Smith, Act.
175. For a distinction between this writ and the
"Writ of Assistance," see that title.
WRIT OF PR1ECIPE. This writ is also called
a "writ of covenant," and is sued out by the party
to whom lands are to be conveyed by fine, the
foundation of which is a supposed agreement or
covenant that the one shall convey the land to
the other. 2 Bl.Comm. 349.
WRIT OF PREVENTION. This name is given to
certain writs which may be issued in anticipation
of suits which may arise. Co.Litt. 100. See Quia
Timet.
WRIT OF PROBABLE CAUSE. An auxiliary
process designed to supersede enforcement of
judgment of trial court brought up for review.
Martin v. Rosen, 2 Cal.App.2d 450, 38 P.2d 855,
857.
WRIT OF PROCESS. See Process; Action.
WRIT OF PROCLAMATION. In English law.
By the statute 31 Eliz. c. 3, § 1, when an exigent
is sued out, a writ of proclamation shall issue at
the same time, commanding the sheriff of the
county where the defendant dwells to make three
proclamations thereof, in places the most notori-
ous, and most likely to come to his knowledge,
a month before the outlawry shall take place.
3 Bl.Comm. 284.
When it is not directed to the same sheriff as
the exigent is, it is called a foreign writ of proc-
lamation. 4 Reeve, Hist. Eng. Law 261.
WRIT OF PROHIBITION. See Prohibition.
WRIT OF PROTECTION. In England, the king
may, by his writ of protection, privilege any per-
son in his service from arrest in civil proceedings
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during a year and a day; but this prerogative is
seldom, if ever, exercise. Archb.Pr. 687. See Co.
Litt. 130a.
WRIT OF QUARE IMPEDIT. See Quare Im-
pedit.
WRIT OF RECAPTION. If, pending an action of
replevin for a distress, the defendant distrains
again for the same rent or service, the owner of
the goods is not driven to another action of
replevin, but is allowed a writ of recaption, by
which he recovers the goods and damages for
the defendant's contempt of the process of the
law in making a second distress while the matter
is sub judice. Woodf. Landl. & Ten. 484.
WRIT OF REPLEVIN, See Replevin.
WRIT OF RESTITUTION. A writ which is issued
on the reversal of a judgment commanding the
sheriff to restore to the defendant below the thing
levied upon, if it has not been sold, and, if it has
been sold, the proceeds. Bac.Abr. "Execution," Q.
A writ which lies, after the reversal of a judg-
ment, to restore a party to all that he has lost
by occasion of the judgment. 2 Tidd, Pr. 1186.
WRIT OF REVIEW. A general designation of
any form of process issuing from an appellate
court and intended to bring up for review the rec-
ord or decision of the court below. Hopkins v.
Benson, 21 Me. 401; West v. De Moss, 50 La.Ann.
1349, 24 So. 325. In Code practice, a substitute for,
or equivalent of, the writ of certiorari. California.
& 0. Land Co. v. Gowen, C.C.Or., 48 F. 775; Bur-
nett v. Douglas County, 4 Or. 389; In re Winegard,
78 Hun, 58, 28 N.Y.S. 1039.
WRIT OF RIGHT. A writ which lay for one who
had the right of property, against another who
had the right of possession and the actual occupa-
tion. The writ properly lay only to recover cor-
poreal hereditaments for an estate in fee-simple;
but there were other writs, said to be "in the na-
ture of a writ of right," available for the recovery
of incorporeal hereditaments or of lands for a less
estate than a fee-simple. Brown; Fitzh. N. B. 1
(B) ; 3 Bl.Comm. 391.
"Originally a writ of right is so called because
it orders the feudal lord to do full right to the
demandant, plenum rectum tenere. . . But
when possessory actions have been established
in the king's court, 'right' is contrasted with `sei-
sin,' and all writs originating proprietary actions
for land . . . come to be known as writs of
right." Maitland, in 2 Sel.Essa; ,
•s, Anglo-Am.Leg.
Hist. 563.
In another sense, a writ which is grantable as
a matter of right, as opposed to a "prerogative
writ," which is issued only as a matter of grace
or discretion.
WRIT OF SUMMONS. The writ by which, under
the English judicature acts, all actions are com-
menced.
WRIT OF SUPERSEDEAS. See Supersedeas.
WRIT OF SUPERVISORY CONTROL. A writ
which is issued only to correct erroneous rulings
made by the lower court within its jurisdiction,
where there is no appeal, or the remedy by appeal
cannot afford adequate relief, and gross injustice
is threatened as the result of such rulings. State
v. District Court of First Judicial Dist. in and for
Lewis and Clark County, 50 Mont. 428, 147 P. 612,
613. It is in nature of summary appeal to control
course of litigation in trial court when necessary
to prevent miscarriage of justice, and may be em-
ployed to prevent extended and needless litigation.
State ex rel. 'Regis v. District Court of Second Ju-
dicial Dist. in and for Silver Bow County, 102
Mont. 74, 55 P.2d 1295.
Function of "writ of supervisory control" is to enable
Supreme Court to control course of litigation in inferior
courts where such courts are proceeding within their ju-
risdiction, but by mistake of law, or willful disregard of it,
are doing gross injustice, and there is no appeal or remedy
by appeal is inadequate. State ex rel. State Bank of
Townsend v. District Court of First Judicial Dist. in and
for Lewis and Clark County, 94 Mont. 551, 25 P.2d 396.
WRIT OF TOLT. In old English law. The name
of a writ to remove proceedings on a writ of right
patent from the court-baron into the county court.
WRIT OF TRIAL. In English law. A writ direct-
ing an action brought in a superior court to be
tried in an inferior court or before the under-
sheriff, under St. 3 & 4 Wm. IV, c. 42. It is now
superseded by the county courts act of 1867, c. 142,
§ 6, by which a defendant, in certain cases, is en-
abled to obtain an order that the action be tried
in a county court. 3 Steph.Comm. 515, n.; Mozley
& Whitley.
WRIT OF WASTE. The name of a writ to be is-
sued against a tenant who has committed waste
of the premises. There were anciently several
forms of this writ, adapted to the particular cir-
cumstances. Fitzh.Nat.Brev. 125.
WRIT PRO RETORNO HABENDO. A writ com-
manding the return of the goods to the defend-
ant, upon a judgment in his favor in replevin, upon
the plaintiff's default.
WRITER OF THE TALLIES. In England, An of-
ficer of the exchequer whose duty it was to write
upon the tallies the letters of tellers' bills.
WRITER TO THE SIGNET. In Scotch law. An
officer nearly corresponding to an attorney at law,
in English and American practice. "Writers to
the signet," called also "clerks to the signet," de-
rive their name from the circumstance that they
were anciently clerks in the office of the secretary
of state, by whom writs were prepared and issued
under the royal signet or seal; and, when the
signet became employed in judicial proceedings,
they obtained a monopoly of the privileges of act-
ing as agents or attorneys before the court of ses-
sion. Brande, voc. "Signet."
WRITING. The expression of ideas by letters
visible to the eye. Clason v. Bailey, 14 Johns. (N.
Y.) 491. The giving an outward and objective
form to a contract, will, etc., by means of letters
or marks placed upon paper, parchment, or other
material substance.
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In the most general sense of the word, "writing"
denotes a document, whether manuscript or print-
ed, as opposed to mere spoken words. Writing
is essential to the validity of certain contracts
and other transactions. Sweet. See "Instrument."
WRITING OBLIGATORY. The technical name
by which a bond is described in pleading. Denton
v. Adams, 6 Vt. 40.
WRITTEN CONTRACT. See Contract.
WRITTEN INSTRUMENT. Something reduced
to writing as a means of evidence, and as the
means of giving formal expression to some act or
contract. Curlee Clothing Co. v. Lowery, Tex.Civ.
App., 275 S.W. 730, 732.
WRITTEN LAW. One of the two leading divi-
sions of the Roman law, comprising the leges,
plebiscita, senatus-consulta, principum placita,
magistratuum edicta, and responsa prudentum.
Inst. 1, 2, 3.
Statute law. 1 Steph.Comm. 40. Law deriving
its force from express legislative enactment. 1
Bl.Comm. 62, 85.
WRONG. A violation of the legal rights of an-
other; an invasion of right to the damage of the
parties who suffer it, especially a tort. State ex
rel. and to Use of Donelon v. Deuser, 345 Mo.
628, 134 S.W.2d 132, 133. It usually signifies in-
jury to person, property or relative noncontrac-
tual rights of another than wrongdoer, with or
without force, but, in more extended sense, in-
cludes violation of contract. Daurizio v. Mer-
chants' Despatch Transp. Co., 152 Misc. 716, 274
N.Y.S. 174.
The idea of rights naturally suggests the correlative one
of wrongs; for every right is capable of being violated. A
right to receive payment for goods sold (for example) im-
plies a wrong on the part of him who owes, but withholds
the price; a right to live in personal security, a wrong on
the part of him who commits personal violence. And
therefore, while, in a general point of view, the law is in-
tended for the establishment and maintenance of rights,
we find it, on closer examination, to be dealing both with
rights and wrongs. It first fixes the character and defini-
tion of rights, and then, with a view to their effectual se-
curity, proceeds to define wrongs, and to devise the means
by which the latter shall be prevented or redressed. 1
Steph.Comm. 126.
Private Wrong
The violation of public or private rights, when
considered in reference to the injury sustained by
the individual, and consequently as subjects for
civil redress or compensation. 3 Steph.Comm. 356;
Huntington v. Attrill, 13 S.Ct. 224, 146 U.S. 657, 36
L.Ed. 1123; Tomlin v. Hildreth, 65 N.J.Law, 438,
47 A. 649; State v. Magee Pub. Co., 29 N.M. 455,
224 P. 1028, 1031, 38 A.L.R. 142.
Public Wrongs
Violations of public rights and duties which af-
fect the whole community, considered as a com-
munity; crimes and misdemeanors. 3 Bl.Comm.
2; 4 Bl.Comm. 1.
WRONGDOER. One who commits an injury; a
tort-feasor. The term ordinarily imports an in-
vasion of right to the damage of the party who
suffers such invasion. Merrill v. Comstock, 154
Wis. 434, 143 N.W. 313, 317.
WRONGFUL. Injurious, heedless, unjust, reck-
less, unfair. Infringement of some right. Mathes
v. Williams, Tex.Civ.App., 134 S.W.2d 853, 858,
WRONGFUL ACT. Any act which in the ordi-
flary course will infringe upon the rights of an-
other to his damage, unless it is done in the ex-
ercise of an equal or superior right. Victor v.
Lewis, La.App., 157 So. 293, 295; Louis Kamm,
Inc., v. Flink, 113 N.J.Law 582, 175 A. 62, 67, 99
A.L.R. 1.
No act is "wrongful" unless the probability of injury
to some determinate person or class of persons raises the
duty as to those persons to refrain from such act. Harper
v. Remington Arms Co., 156 Misc. 53, 280 N.Y.S. 862.
WRONGFUL CONDUCT. Conduct which contra-
venes some ditty which law attaches to relation
between parties affected. Duncan v. Lumber-
men's Mut. Casualty Co., 91 N.H. 349, 23 A.2d 325,
326.
WRONGFUL DEATH STATUTES. Statutory
provision which operates upon the common-law
rule that the death of a human being may not be
complained of as an injury in a civil court. The
cause of action for wrongful death is for the
wrong to the beneficiaries. In re Daniel's Estate,
294 N.W. 465, 470, 208 Minn. 420.
See, also, Survival Statutes.
WRONGFUL LEVY. Which will entitle the owner
of property levied on to damages for wrongful
execution, has been made where there has been
done to a third person's personalty those acts
that would constitute a valid and complete levy
if the debtor's property had been seized. Farris
v. Castor, 186 Okl. 668, 99 P.2d 900, 902, 903.
WRONGFULLY. In a wrong manner; unjustly;
in a manner contrary to the moral law, or to
justice. Board of Com'rs of Howard County v.
Armstrong, 91 Ind. 536.
WRONGFULLY INTENDING. In the language
of pleading, this phrase is appropriate to be used
in alleging the malicious motive of the defendant
in committing the injury which forms the cause
of action.
WRONGOUS. In Scotch law. Wrongful; unlaw-
ful; as wrongous imprisonment. Ersk.Prin. 4, 4,
25.
WURTH. In Saxon law. Worthy; competent;
capable. Atheswurthe, worthy of oath; admissi-
ble or competent to be sworn. Spelman.
WYE. As applied to a street railway, a "wye"
means a track with two branches, one joining the
main track from one direction and the other join-
ing the main track from another direction. Falls
v. Grand Rapids, G. H. & M. Ry. Co., 189 Mich.
644, 155 N.W. 548, 549.
Real Wrong
In old English law. An injury to the freehold. munity from amercement.
WYTE. In old English law. Acquittance or im-
1788

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Y
YA
YA ET NAY. In old records. Mere assertion and
denial, without oath.
YACHT. Vessel larger than a rowboat used for
private pleasure. Barker v. Inhabitants of Town
of Fairhaven, 265 Mass. 333, 163 N.E. 901, 902.
YACHT BASIN. A system of channels, docks and
wharves suitable for carrying, floating, anchoring,
landing, loading and unloading yachts and other
like sea-going craft. State v. City of Clearwater,
135 Fla. 148, 184 So. 790, 794.
YAHRZEIT. In the Orthodox Jewish faith an an-
nual prayer for repose of soul of dead person.
In re Fleishfarb's Will, 151 Misc. 399, 271 N.Y.S.
736.
YARD. A measure of length, containing three
feet, or thirty-six inches.
A piece of land inclosed for the use and accom-
modation of the inhabitants of a house.
An enclosure, with or without buildings, devoted
to some work or business. Grace Iron & Steel
Corporation v. Ackerman, 123 N.J.L. 54, 7 A.2d 820,
822.
YARDLAND, or virgata terrce, is a quantity of
land, said by some to be twenty acres, but by
Coke to be of uncertain extent.
YARDMAN. Employee who takes care of or as-
sists in care of yards and grounds. Statter v.
Herring, 217 Iowa 410, 251 N.W. 715.
YEA AND NAY. Yes and no. According to a
charter of Athelstan, the people of Ripon were to
be believed in all actions or suits upon their yea
and nay, without the necessity of taking any oath.
Brown.
See, also, Yeas and Nays.
YEAR. The period in which the revolution of the
earth round the sun, and the accompanying
changes in the order of nature, are completed.
Generally, when a statute speaks of a year, twelve
calendar, and not lunar, months are intended.
Cro.Jac. 166. The year is either astronomical, ec-
clesiastical, or regnal, beginning on the 1st of
January, or 25th of March, or the day of the sov-
ereign's accession. Wharton.
The civil year differs from the astronomical, the
latter being composed of three hundred and sixty-
five days, five hours, forty-eight minutes, forty-
six seconds and a fraction, while the former con-
sists sometimes of three hundred and sixty-five
days, and at others, in leap-years, of three hundred
and sixty-six days.
When the period of a "year" is named, a calen-
dar year is generally intended, but the subject-mat-
ter or context of statute or contract in which the
term is found or to which it relates may alter its
meaning. J. L. Hammett Co. v. Alfred Peates Co.,
105 N.E. 370, 217 Mass. 520, L.R.A.1915A, 334;
United States Trust Co. v. Commissioner of Cor-
porations and Taxation, 299 Mass. 296, 13 N.E.2d
6, 299 Mass. 296.
Natural Year
In old English law. That period of time in
which the sun was supposed to revolve in its orbit,
consisting of 365 days and one-fourth of a day, or
six hours. Bract. fol. 359b.
Year and Day
This period was fixed for many purposes in law.
Thus, in the case of an estray, if the owner did
not claim it within that time, it became the prop-
erty of the lord. So the owners of wreck must
claim it within a year and a day. Death must
follow upon wounding within a year and a day
if the wounding is to be indicted as murder. Also,
a year and a day were given for prosecuting or
avoiding certain legal acts; e. g., for bringing
actions after entry, for making claim for avoiding
a fine, etc. Brown.
Year Books
Books of reports of cases in a regular series
from the reign of the English King Edward I.,
inclusive, to the time of Henry VIII., which were
taken by the prothonotaries or chief scribes of the
courts, at the expense of the crown, and published
annually; whence their name, "Year Books."
Brown.
Year, Day, and Waste
In English law. An ancient prerogative of the
king, whereby he was entitled to the profits, for
a year and a day, of the lands of persons attainted
of petty treason or felony, together with the right
of wasting the tenements, afterwards restoring
the property to the lord of the fee. Abrogated
by St. 54 Geo. III., c. 145. Wharton.
See An, Jour, et Waste.
Year of Our Lord
In England the time of an offense may be al-
leged as that of the sovereign's reign, or as that
of the year of our Lord. The former is the usual
mode. Hence there "year" alone might not indi-
cate the time intended, but as we have no other
era, therefore, any particular year must mean that
year in our era. Com. v. Doran, 14 Gray (Mass.)
38. The abbreviation A. D. may be omitted; and
the word year is not fatal; State v. Bartlett, 47
Me. 393; contra, Com. v. McLoon, 5 Gray (Mass.)
92, 66 Am.Dec. 354.
Year to Year, Tenancy from
This estate arises either expressly, as when land
is let from year to year; or by a general parol
demise, without any determinate interest, but re-
serving the payment of an annual rent; or im-
1790

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YORK
pliedly, as when property is occupied generally
under a rent payable yearly, half-yearly, or quar-
terly; or when a tenant holds over, after the ex-
piration of his term, without having entered into
any new contract, and pays rent, (before which
he is tenant on sufferance.) Wharton. See, also,
Tenant, subtitle Tenant from Year to Year.
Years, Estate for
See Estate for Years.
YEAR OF MOURNING. The Roman "annus luc-
tus" (q. v.).
The reason for the widow's year of mourning has been
stated as follows: "But if a man dies, and his widow
soon after marries again, and a child is born within
such a time as by the course of nature it might have been
the child of either husband, in this case he is said to be
more than ordinarily legitimate; for he may, when he
arrives at years of discretion, choose which of the fathers
he pleases. To prevent this, the civil law ordained that
no widow should marry for one year, and the same con-
stitution was probably transmitted to our ancestors from
the Romans, during their stay in Britain, for we find it
established under the Saxon and Danish governments."
1 Bl. Comm. 456 (quoted from Browne's Abr., p. 151
[Gavit's Ed., p. 198]).
YEARLING. A young animal past its first year
and not yet two years old. Moran v. State, 160
Miss. 598, 135 So. 209.
YEAS AND NAYS. The affirmative and negative
votes on a bill or measure before a legislative
assembly. "Calling the yeas and nays" is calling
for the individual and oral vote of each member,
usually upon a call of the roll.
YEAST. A small cellular micro-organism. In
its ordinary significance, it is a conglomerate mass
of infinitesimally small cells. Standard Brands v.
National Grain Yeast Corporation, N.J., 60 S.Ct.
27, 28, 308 U.S. 34, 84 L.Ed. 17.
YELLOW DOG CONTRACT. A contract by
which employer requires employee to sign an
instrument promising as condition that he will not
join a union during its continuance, and will be
discharged if he does join. Denver Local Union
No. 13 of International Brotherhood of Teamsters,
Chauffeurs, Stablemen, and Helpers of America v.
Perry Truck Lines, 101 P.2d 436, 443, 106 Colo. 25.
YEME. In old records. Winter; a corruption of
the Latin "hiems." See Hyems.
YEN HOCK. A piece of metal sharpened at one
end and blunt on the other end, used to cook an
opium pill or yen pock. People v. Graves, 84 Cal.
App.2d 531, 191 P.2d 32, 33.
YEN POCK. An opium pill. People v. Graves, 84
Cal.App.2d 531, 191 P.2d 32, 33.
YEN SHEE. A carbonized opium and a black
granular substance. People v. Graves, 84 Cal.
App.2d 531, 191 P.2d 32, 33.
YEOMAN. In English law. A commoner; a free-
holder under the rank of gentleman. Cowell. A
man who has free land of forty shillings by the
year; who was anciently thereby qualified to
serve on juries, vote for knights of the shire, and
do any other act, where the law requires one that
is probes et legalis homo. 1 Bl.Comm. 406, 407.
This term is occasionally used in American law,
but without any definite meaning, except in the
United States navy, where it designates an ap-
pointive petty officer. Who performs clerical
duties usually associated with office workers.
YEOMANRY. The collected body of yeomen.
YEOMEN OF THE GUARD. Properly called
"yeomen of the guard of the royal household;"
a body of men of the best rank under the gentry,
and of a larger stature than ordinary, every one
being required to be six feet high. Enc. Lond.
YEVEN, or YEOVEN. Given; dated. Cowell.
YIDDISH. A Middle High German dialect, or
number of dialects, spoken by Jews, containing
a large number of Germanized Hebrew words, and
using Hebrew characters for its literature. U. S.
ex rel. Engel v. Tod, C.C.A.2, 294 F. 820, 822.
YIELD. In the law of real property. To perform
a service due by a tenant to his lord. Hence
the usual form of reservation of a rent in a lease
begins with the words "yielding and paying."
Sweet.
In patent law. The word "yielding," as used in
a patent claim, is not the equivalent of "resilient,"
or "spring-supported," but may be applied to a
part which is retractable at will. Mergenthaler
Linotype Co. v. International Typesetting Mach.
Co., D.C.N.Y., 229 F. 168, 192.
YIELD UPON INVESTMENT Proportionate
rate which the income upon an investment bears
to the total cost interest excepted on that invest-
ment, taking into consideration the time when the
investment may be outstanding before being paid
off. Baltimore Mail S. S. Co. v. United States, D.C.
Md., 7 F.Supp. 651, 653.
YIELDING AND PAYING In conveyancing.
The initial words of that clause in leases in which
the rent to be paid by the lessee is mentioned
and reserved.
YOKELET. A little farm, requiring but a yoke of
oxen to till it.
YOM KIPPUR. Day of Atonement, is the most
sacred and solemn holiday in the Jewish calendar,
a day on which Jews throughout the world, after
a period of fasting, congregate together at their
respective synagogues to worship and pray and
ask divine forgiveness for sins committed during
the year. Hoffman v. Graber, Mo.App., 153 S.W.
2d 817, 818.
YORK—ANTWERP RULES. Certain rules relat-
ing to uniform bills of lading formulated by the
Association for the Reform and Codification of the
Laws of . Nations, now the International Law As-
sociation.
These rules are commonly incorporated in con-
tracts of affreightment. They are the result of
1791

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ZYTHUM
ZAMINDAR. See Zemindar.
ZANJA. Span. A water ditch or artificial canal,
and particularly one used for purposes of irriga-
tion. See Pico v. Colimas, 32 Cal. 578.
ZANJERO. Span. A water commissioner or su-
perintendent, or supervisor of an irrigation sys-
tem. See Pico v. Colimas, 32 Cal. 578; Everett
v. Standard Acc. Ins. Co., 45 Cal.App. 332, 187 P.
996, 1000.
ZEALOT. This word is commonly taken in a
bad sense, as denoting a separatist from the
Church of England, or a fanatic. Brown.
ZEALOUS WITNESS. An untechnical term de-
noting a witness, on the trial of a cause, who man-
ifests a partiality for the side calling him, and an
eager readiness to tell anything which he thinks
may be of advantage to that side.
ZEIR. 0. Sc. Year. "Zeir and day." Bell.
ZEMINDAR. In Hindu law. Landkeeper. An of-
ficer who under the Mohammedan government
was charged with the financial superintendence of
the lands of a district, the protection of the cul-
tivators, and the realization of the government's
share of its produce, either in money or kind.
Wharton.
ZEOLITE PROCESS. The "zeolite process" of
softening water consists in passing hard water
through a filter bed of granular sodium zeolites,
which exchange their sodium base for the calcium
and magnesium in the water. Permutit Co. v.
Wadham, D.C.Mich., 294 F. 370, 371.
ZEOLITES. Chemical compounds existing in na-
ture, and also produced chemically, possessing the
unique and valuable property of being able, when
saturated with solution of sodium chloride, to take
up from water passed through them such harden-
ing elements as calcium or magnesium, and to ex-
change the same for salt when brought in con-
tact therewith. Permutit Co. v. Graver Corpora-
tion, D.C.Ill., 37 F.2d 385, 386.
ZETETICK. Proceeding by inquiry. Enc. Lond.
Black's Law Dictionary Revised 4th Ed.-113
ZIGARI, or ZINGARI. Rogues and vagabonds in
the middle ages; from Zigi, now Circassia.
ZOLL-VEREIN. A union of German states for
uniformity of customs, established in 1819. It
continued until the unification of the German em-
pire, including Prussia, Saxony, Bavaria, Wur-
temberg, Baden, Hesse-Cassel, Brunswick, and
Mecklenburg-Strelitz, and all intermediate princi-
palities. It was subsequently superseded by the
German empire; and the federal council of the
empire took the place of that of the Zoll-Verein.
Wharton.
ZONE OF EMPLOYMENT. Within which injur-
ies to employees are compensable under Work-
men's Compensation Acts is the place of employ-
ment and the area thereabout, including the
means of ingress thereto and egress therefrom un-
der the control of the employer. Merz v. Indus-
trial Commission of Ohio, 134 Ohio St. 36, 15 N.E.
2d 632, 633. It implies reasonable proximity to
place of employment. Evans v. Workmen's Com-
pensation Commissioner, 124 W.Va. 336, 20 S.E.2d
172, 173.
ZONING. The division of a city by legislative
regulation into districts and the prescription and
application in each district of regulations having
to do with structural and a7chitectural designs of
buildings and of regulations prescribing use to
which buildings within designated districts may
be put. Miller v. Board of Public Works of City
of Los Angeles, 195 Cal. 477, 234 P. 381, 384, 38 A.
L.R. 1479; Elizabeth City v. Aydlett, 201 N.C. 602,
161 S.E. 78, 79.
ZYGOCEPHALUM. In the civil law. A measure
or quantity of land. Nov. 17, c. 8. As much land
as a yoke of oxen could plow in a day. Calvin.
ZYGOSTATES. In the civil law. A weigher; an
officer who held or looked to the balance in weigh-
ing money between buyer and seller; an officer
appointed to determine controversies about the
weight of money. Spelman.
ZYTHUM. Lat. A liquor or beverage made of
wheat or barley. Dig. 33, 6, 9, pr.
1793

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A TABLE
OF
BRITISH REGNAL YEARS
Length
Sovereign Accession of reign
William I  - - - - - - - - - - - - - - - - - - - - - - Oct. 14, 1066  - - - - - - - - - 21
William II  - - - - - - - - - - - - - - - - - - - - - Sept. 26, 1087  - - - - - - - - - 13
Henry I  - - - - - - - - - - - - - - - - - - - - - - - Aug. 5, 1100  - - - - - - - - - - 36
Stephen  - - - - - - - - - - - - - - - - - - - - - - - Dec. 26, 1135  - - - - - - - - - 19
Henry II  - - - - - - - - - - - - - - - - - - - - - - - Dec. 19, 1154  - - - - - - - - - 35
Richard I  - - - - - - - - - - - - - - - - - - - - - - Sept. 23, 1189  - - - - - - - - - 10
John  - - - - - - - - - - - - - - - - - - - - - - - - - May 27, 1199  - - - - - - - - - 18
Henry III  - - - - - - - - - - - - - - - - - - - - - - Oct. 28, 1216  - - - - - - - - - - 57
Edward I  - - - - - - - - - - - - - - - - - - - - - - Nov. 20, 1272  - - - - - - - - - 35
Edward II  - - - - - - - - - - - - - - - - - - - - - July 8, 1307  - - - - - - - - - - - 20
Edward III  - - - - - - - - - - - - - - - - - - - - - Jan. 25, 1326  - - - - - - - - - - 51
Richard II  - - - - - - - - - - - - - - - - - - - - - June 22, 1377  - - - - - - - - - 23
Henry IV  - - - - - - - - - - - - - - - - - - - - - - Sept. 30, 1399  - - - - - - - - - 14
Henry V  - - - - - - - - - - - - - - - - - - - - - - - March 21, 1413  - - - - - - - - 10
Henry VI  - - - - - - - - - - - - - - - - - - - - - - Sept. 1, 1422  - - - - - - - - - - 39
Edward IV  - - - - - - - - - - - - - - - - - - - - - March 4, 1461  - - - - - - - - 23
Edward V  - - - - - - - - - - - - - - - - - - - - - April 9, 1483  - - - - - - - - - -
Richard III  - - - - - - - - - - - - - - - - - - - - - June 26, 1483  - - - - - - - - -  3
Henry VII  - - - - - - - - - - - - - - - - - - - - - Aug. 22, 1485  - - - - - - - - - 24
Henry VIII  - - - - - - - - - - - - - - - - - - - - - April 22, 1509  - - - - - - - - 38
Edward VI  - - - - - - - - - - - - - - - - - - - - - - Jan. 28, 1547  - - - - - - - - -  7
Mary  - - - - - - - - - - - - - - - - - - - - - - - - - July 6, 1553  - - - - - - - - - -  6
Elizabeth  - - - - - - - - - - - - - - - - - - - - - Nov. 17, 1558  - - - - - - - - - 45
James I  - - - - - - - - - - - - - - - - - - - - - - - - March 24, 1603  - - - - - - -  23
Charles I  - - - - - - - - - - - - - - - - - - - - - - March 27, 1625  - - - - - - - - 24
The Commonwealth  - - - - - - - - - - - - - - Jan. 30, 1649  - - - - - - - - - 11
Charles II  - - - - - - - - - - - - - - - - - - - - - May 29, 1660  - - - - - - - - - 37
James II  - - - - - - - - - - - - - - - - - - - - - - - Feb. 6, 1685  - - - - - - - - - -  4
William and Mary  - - - - - - - - - - - - - - - Feb. 13, 1689  - - - - - - - - - 14
Anne  - - - - - - - - - - - - - - - - - - - - - - - - - March 8, 1702  - - - - - - - - 13
George I  - - - - - - - - - - - - - - - - - - - - - - - Aug. 1, 1714  - - - - - - - - - - 13
George II  - - - - - - - - - - - - - - - - - - - - - - June 11, 1727  - - - - - - - -  34
George III  - - - - - - - - - - - - - - - - - - - - - Oct. 25, 1760  - - - - - - - - - 60
George IV  - - - - - - - - - - - - - - - - - - - - - Jan. 29, 1820  - - - - - - - - - 11
William IV  - - - - - - - - - - - - - - - - - - - - - June 26, 1830  - - - - - - - -  7
Victoria  - - - - - - - - - - - - - - - - - - - - - - - June 20, 1837  - - - - - - - - - 64
Edward VII  - - - - - - - - - - - - - - - - - - - - Jan. 22, 1901  - - - - - - - - -  9
George V  - - - - - - - - - - - - - - - - - - - - - - May 6, 1910  - - - - - - - - - - - 25
Edward VIII  - - - - - - - - - - - - - - - - - - - - Jan. 20, 1936  - - - - - - - -  1
George VI  - - - - - - - - - - - - - - - - - - - - - Dec. 11, 1936   - - - - - - - 15
Elizabeth II Feb. 6, 1952
Black's Law Dictionary Revised 4th Ed. 1795*

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ABBREVIATIONS
1797
A
A. Alabama ;—Arkansas ;—Abbott (see Abb.) ;—An-
nuals (Louisiana) ;—Atlantic Reporter.
A.2d. Atlantic Reporter, Second Series.
A.B. Anonymous Reports at the end of Bendloe.
A.B.A.Jour. American Bar Association Journal.
A.B.R. American Bankruptcy Reports.
A'B.R.J.N.S.W. A'Beckett's Reserved (Equity) Judg-
ments, New South Wales.
A'B.R.J.P.P. A'Beckett's Reserved Judgments, Port
Philip.
A.B.R.N.S. American Bankruptcy Reports, New
Series.
A.C. Appellate Court ;—Case on Appeal ;—Appeal
Cases ;—Advance California Reports.
[1891] A.C. Law Reports, Appeal Cases, from 1891
onward.
1917, A.G. 1917, Appeal Cases, Canada.
1918, A.C. Law Reports, 1918, Appeal Cases, Eng.
A.C.A. Advance California Appellate Reports.
A.C.C. American Corporation Cases (Withrow's).
A.C.L.J. American Civil Law Journal.
A.C.R. American Criminal Reports.
A.D. American Decisions ;—Appellate Division, New
York Supreme Court.
A.E.C. American Electrical Cases.
A.G. (or A.G.Op.) Attorney General's Opinions.
A.G.Dec. Attorney General's Decisions.
A.I ns.R. American Insolvency Reports.
A.K.Marsh. A. K. Marshall's Kentucky Reports.
A.L.C. American Leading Cases.
A.L.R. American Law Reports.
A.M.C. American Maritime Cases.
A.M. & 0. Armstrong, Macartney & Ogle's Irish Nisi
Prius Reports.
A.Moo. A. Moore's Reports, in vol. 1 Bosanquet &
Puller.
A.N.C. Abbott's New Cases, New York ;—American
Negligence Cases.
A.N.R. American Negligence Reports, Current Series.
A.P.B. Ashurst's Paper Books (MSS. in Lincoln's
Inn Library).
A.R. American Reports ;—Atlantic Reporter ;—Appeal
Reports, Ontario.
A.R.C. American Ruling Cases ;—American Railway
Cases.
A.R.S. Arizona Revised Statiltes.
Black's Law Dictionary Revised 4th Ed,
A.R.R. American Railway Reports.
A.R.V.R. 22. Anno Regni Victorice Regina Vicesimo
Secundo.
A.Rep. American Reports ;—Atlantic Reporter (com-
monly cited Atl. or A.).
A.S.R. American State Reports.
A. & E. Adolphus & Ellis' English Queen's Bench
Reports ;—Admiralty and Ecclesiastical.
A. & E.Cas. American & English Annotated Cases.
A. & E.Corp.Cas. American and English Corporation
Cases.
A. & E.Ency.Law (or A. & E.Enc.L. & Pr.). American &
English Encyclopaedia of Law & Practice.
A. & E.N.S. Adolphus & Ellis' English Queen's Bench
Reports, New Series.
A. & E.P. & P. American and English Pleading and
Practice.
A. & E.R.R.C. (or A. & E.R.Cas.). American & English
Railroad Cases.
A. & H. Arnold & Hodges' English Queen's Bench
Reports.
A. & N. Alcock & Napier's Irish King's Bench Re-
ports.
Ab.Eq.Cas. Equity Cases Abridged (English).
Abb. Abbott. See below.
Abb.Ad. (or Abb.Adm.). Abbott's Admiralty Reports.
Abb.App.Dec. Abbott's New York Court of Appeals
Decisions.
Abb.Beech.Tr. Abbott's Report of the Beecher Trial.
,Abb.C.C. Abbott's Circuit Court, United States.
Abb.Ct.App. Abbott's New York Court of Appeals
Decisions.
Abb.Dec. Abbott's New York Court of Appeals De-
cisions.
Abb.Dig. Abbott's New York Digest.
Abb.Dlg.Corp. Abbott's Digest Law of Corporations.
Abb.Law Abbott's Law Dictionary.
Abb.Mo.Ind. Abbott's Monthly Index.
Abb.N.C. Abbott's New Cases, New York.
Abb.N.S. Abbott's Practice Reports, New Series.
Abb.N.Y.App. Abbott's New York Court of Appeals
Decisions.
Abb.N.Y.Dig. Abbott's New York Digest.
Abb.Nat.Dig. Abbott's National Digest.
Abb.Pr. (or Prac.). Abbott's New York Practice Re-
ports.

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ABB.PR.N.S.
Abb.Pr.N.S. Abbott's New York Practice Reports,
New Series.
Abb.Ship. Abbott (Lord Tenterden) on Shipping.
Abb.Tr.Ev. Abbott's Trial Evidence.
Abb.U.S. Abbott's United States Circuit Court Re-
ports.
Abb.Y.Bk. Abbott's Year Book of Jurisprudence.
Abbott. Abbott's Dictionary.
A'Beck.R.J.N.S.W. A'Beckett's Reserved (Equity)
Judgments. New South Wales.
A'Beck.R.J.P.P. A'Beckett's Reserved Judgments.
(Port Phillip).
A'Beck.Res.Judgm. (or A'Beck.Judg.Vict.) A'Beckett's
Reserved Judgments of Victoria.
Abr. Abridgment ;—Abridged.
Abr.Case. Crawford & Dix's Abridged Cases, Ireland.
Abr.Case.Eq. Equity Cases Abridged (English).
Act. (or Act.Pr.C.). Acton's English Privy Council
Reports.
Acta Cancellariae. English Chancery Reports.
Acton. Acton, Eng.
Ad.Jus. Adam's Justiciary Reports (Scotch).
Ad. & E. (or Ad. & Ell.). Adolphus & Ellis' English
King's Bench Reports.
Ad. & EII.N.S. Adolphus & Ellis' Reports, New Series;
—English Queen's Bench (commonly cited Q.B.).
Adams. Adams' Reports, vols. 41, 42 Maine ;—Adams'
Reports, vol. 1 New Hampshire.
Adams, Eq. Adams' Equity.
Adams, Rom.Ant. Adams, Roman Antiquities.
Add. Addison's Reports, Pennsylvania ;—Addams'
English Ecclesiastical Reports.
Add.Cont. Addison on Contracts.
Add.Ecc. Addams' Ecclesiastical Reports.
Add.Rep. Addison's Pennsylvania Reports.
Add.Torts. Addison on Torts.
Addams. Addams' Ecclesiastical Reports, English.
Addis. (or Add.Pa.). Addison's (Pennsylvania County
Court) Reports.
Adj.Sess. Adjourned Session.
Adm. & Ecc. Admiralty and Ecclesiastical ;—English
Law Reports, Admiralty and Ecclesiastical.
Adol. & El. Adolphus & Ellis' Reports, English King's
Bench.
Adol. & EI.N.S. Adolphus & Ellis' Reports, New
Series, English Queen's Bench.
Adolph. & E. Adolphus & Ellis' English King's Bench
Reports.
Adolph. & E.N.S. Adolphus & Ellis' New Series (usu-
ally cited as Queen's Bench).
Adv.Ops. Advance Opinions.
Agra, F.B. Agra High Court, Full Bench (India).
Agra H.C. Agra High Court Reports (India).
Aik. Aikens' Vermont Reports.
Ai k.Dig. Aikin's Digest of Laws, Ala.
Aikens (Vt.). Aikens' Reports, Vermont.
Ai nsw. (or Ainsworth). Ainsworth's Lexicon.
Air L.Rev. Air Law Review.
Al. Aleyn's Select Cases, King's Bench ,—Alabama ;—
Allen.
Al.Tel.Ca. Allen's Telegraph Cases.
Al. & Nap. Alcock & Napier's Irish King's Bench Re-
ports.
Ala. Alabama ;—Alabama Reports.
Ala.App. Alabama Appellate Court.
Ala.L.J. Alabama Law Journal.
Ala.L.Rev. Alabama Law Review.
Ala.Law. Alabama Lawyers.
Ala.N.S. Alabama Reports, New Series.
Ala.Sel.Cas. Alabama Select Cases, by Shepherd, see
Alabama Reports, vols. 37, 38 and 39.
Ala.St.Bar Ass'n. Alabama State Bar Association.
Alaska. Alaska Reports.
Alaska Co. Alaska Codes, Carter.
Alb.Arb. Albert Arbitration (Lord Cairns' Decisions).
Alb.Law J. Albany Law Journal.
Alberta L.Q. Alberta Law Quarterly.
Alc. (or Alc.Reg. or Alc.Reg.Cas.). Alcock's Irish Reg-
istry Cases.
Ale. & Nap. Alcock & Napier's Irish King's Bench
Reports.
Ald. Alden's Condensed Reports, Pennsylvania.
Alex.Cas. Report of the Alexandria Case by Dudley.
Alexi ns. Alexander on Life Insurance in New York.
Alexander. Alexander's Reports, vols. 66-72 Missis-
sippi.
Aleyn. Aleyn's Select Cases, English King's Bench.
Alger's Law Promoters & Prom.Corp. Alger's Law in
Relation to Promoters and Promotion of Corpora-
tions.
AIis.Princ.Scotch Law. Alison's Principles of the
Criminal Law of Scotland.
Alison Pr. Alison's Practice, Scotch.
All. Allen's Massachusetts Reports.
All.N.B. Allen's New Brunswick Reports.
All.Ser. Allahabad Series, Indian Law Reports.
AII.Tel.Cas. Allen's Telegraph Cases.
Allen. Allen's Massachusetts Reports ;—Allen's Re-
ports, New Brunswick ;—Allen's Reports, Wash-
ington.
Allen Tel.Cas. Allen's Telegraph Cases.
Allin (or Allinson). Allinson, Pennsylvania Superior
and District Court.
Allison's Am.Dict. Allison's American Dictionary.
Alta.L. Alberta Law.
Am.Bank.R. (or Am.B'kc'y Rep.). American Bank-
ruptcy Reports.
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AMB. (OR AMBL.)
Am.Law I nst. American Law Institute Restatement
of the Law.
Am.Law Mag. American Law Magazine.
Am.Law Rec. American Law Record (Cincinnati).
Am.Law Reg. American Law Register.
Am.Law Rev. American Law Review.
Am.Law S.Rev. American Law School Review.
Am.Lead.Cas. American Leading Cases (Hare & Wal-
lace's).
Am.Leg.N. American Legal News.
Am.Neg.Ca. (or Am.Negl.Cas.) American Negligence
Cases.
Am.Neg.Rep. (or Am.Negl.R.) American Negligence
Reports.
Am.Pol.Sci.Rev. American Political Science Review.
Am.Pr. American Practice.
Am.Pr.Rep. American Practice Reports, Washington,
D.C.
Am.Prob. American Probate.
Am.Prob.N.S. American Probate, New Series.
Am.Prob.Rep. American Probate Reports.
Am.R. (or Am.Rep.) American Reports.
Am.R.R.Cas. American Railway Cases (Smith &
Bates').
Am.R.R.Rep. (or Am.R.Rep.). American Railway Re-
ports.
Am.R.R. & C.Rep. (or Am.R. & Corp.) American Rail-
road & Corporation Reports.
Am.Rep. American Reports (Selected Cases).
Am.Ry.Ca. American Railway Cases.
Am.Ry.Rep. American Railway Reports.
Am.St.Rep. American State Reports.
Am.St.Ry.Dec. American Street Railway Decisions.
Am.St.Ry.Rep. American Street Railway Reports.
Am.Tr.-M.Cas. American Trade-Mark Cases (Cox's).
Am. & Eng.Corp.Cas. American and English Corpora-
tion Cases.
Am. & Eng.Corp.Cas.N.S. American & English Corpo-
ration Cases, New Series.
Am. & Eng.Dec. in Eq. American and English Deci-
sions in Equity.
Am. & Eng.Ency.Law (or Am. & Eng.Enc.Law). Amer-
ican and English Encyclopedia of Law.
Am. & Eng.Enc.Law Sup. American and English En-
cyclopedia of Law, Supplement.
Am. & Eng.Pat.Cas. (or Am. & Eng.Pat.Ca.). American
and English Patent Cases.
Am. & Eng.R.R.Ca. American and English Railroad
Cases.
Am. & Eng.Ry.Cas. (or Am. & Eng.Ry.Ca.). American
and English Railway Cases.
Am. & Eng.Ry.Cas.N.S. American & English Railroad
Cases, New Series.
Am b. (or Ambl.) Ambler's English Chancery Reports.
Am.Bankr.Reg. National Bankruptcy Register, U.S.
Am.Bankr.Rep.N.S. American Bankruptcy Reports,
New Series.
Am.Bankr.Rev. American Bankruptcy Review.
Am.C.L.J. American Civil Law Journal, N.Y.
Am.Cent.D1g. American Digest (Century Edition).
Am.Corp.Cas. American Corporation Cases (With-
row's).
Am.Cr. American Criminal.
Am.Cr.Rep. American Criminal Reports.
Am.Cr.Tr. American Criminal Trials. Chandler's.
Am.Dec. American Decisions.
Am.Dig. American Digest.
Am.Dig.Cent.Ed. American Digest (Century Edition).
Am.Dig.Dec.Ed. (or Decen.Ed.). American Digest (De-
cennial Edition).
Am.Ed. American Edition.
Am.E1.Ca. (or Am.EIec.Ca. or Am.Electr.Cas.). Amer-
ican Electrical Cases.
Am.Enc.Dict. American Encyclopedic Dictionary.
Am.Fed.Tax R. American Federal Tax Reports.
Am.I ns. Arnold on Marine Insurance.
Am.l ns.Rep. (or Am.I nsol.Rep.). American Insolvency
Reports.
Am.J.I nt.L. American Journal of International Law.
Am.Jour.Pol. American Journal of Politics.
Am.Jour.Soc. American Journal of Sociology.
Am.Jud.Soc. American Judicature Society.
Am.Jur. American Jurisprudence ;-American Jurist,
Boston.
Am.L.C.R.P. Sharswood and Budd's Leading Cases on
Real Property.
Am.L.Cas. American Leading Cases.
Am.L.J. (or Am.Law J.). American Law Journal;
American Law Journal (Hall's) Philadelphia.
Am.L.J. (N.S.) American Law Journal (Clark's).
Am.L.J.N.S. American Law Journal, New Series,
Philadelphia.
Am.L.J. (0) American Law Journal (Ohio).
Am.L.J. (0.S.) American Law Journal (Hall's).
Am.L.Reg. (N.S.) (or Am.Law Reg.N.S.) American
Law Register, New Series.
Am.L.Reg. (0.S.) (or Am.Law Reg.O.S.) American
Law Register, Old Series.
Am.L.Rev. American Law Review, Boston.
Am.L.S.Rev. American Law School Review.
Am .L.T.B a n kr. American Law Times Bankruptcy
Reports.
Am.L.T.R. (or Am.Law T.Rep.) American Law Times
Reports.
Am.L.T.R.N.S. American Law Times Reports, New
Series.
Am.Lab.Leg.Rev. American Labor Legislation Re-
view.
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AMEND.
Amend. Amendment.
Amer. American ;—Amerman, vols. 111-115 Pennsyl-
vania.
Amer.Jur. American Jurist.
Amer.Law. American Lawyer, New York.
Amer.Law Reg. (N.S.). American Law Register, New
Series.
Amer.Law Reg. (O.S.). American Law Register, Old
Series.
Amer.Law Rev. American Law Review.
Amer. & Eng.Enc.Law. American & English Encyclo-
paedia of Law.
Ames. Ames' Reports, vols. 4-8 Rhode Island ;—Ames'
Reports, vol. 1 Minnesota.
Ames Cas.B. & N. Ames' Cases on Bills and Notes.
Ames Cas.Par. Ames' Cases on Partnership.
Ames Cas.PI. Ames' Cases on Pleading.
Ames Cas.Sur. Ames' Cases on Suretyship.
Ames Cas.Trusts. Ames' Cases on Trusts.
Ames, K. & B. Ames, Knowles & Bradley's Reports,
vol. 8 Rhode Island.
Amos & F.Fixt. Amos & Ferrard on Fixtures.
Anc.Charters. Ancient Charters, 1692.
And. Andrews' Reports, vols. 63-72 Connecticut ;—
Andrews' English King's Bench Reports ;—Ander-
son, England.
And.Law Diet. Anderson's Law Dictionary.
Anders. (or Anderson). Anderson's Reports, English
Court of Common Pleas.
Andr. (or Andrews). Andrews' English King's Bench
Reports. See also And.
Ang. Angell's Reports, Rhode Island.
Ang.Car. Angell on Carriers.
Ang.Hlghw. Angell & Durfee on Highways.
Ang.Ins. Angell on Insurance.
Ang.LI m. Angell on Limitations.
Ang.Waters (or Ang.Tide Waters). Angell uu Tide
Waters.
Ang.Water Courses. Angell on Water Courses.
Ang. & A.Corp. Angell & Ames on Corporations.
Ang. & Dur. Angell & Durfee's Reports, vol. 1 Rhode
Island.
Ann. Queen Anne, as 8 Ann. c. 19 ;—Annally's Re-
ports, K.B.
Ann.Cal.Codes. West's Annotated ( Ialir()r►ia lodes.
Ann.Cas. American & English Annotated Cases ;—
New York Annotated Cases.
Ann.Cas.1912A. American Annotated Cases 1912A, et
seq.
Ann.Code. Annotated Code.
Ann.Codes & St. Bellinger and Cotton's Annotated
Codes and Statutes, Or.
Ann.Law Reg. Annual Law Register of the U. S.
Ann.Reg. Annual Register, London.
Ann.St. Annotated Statutes.
Ann.St.I nd.T. Annotated Statutes of Indian Terri-
tory.
An natty. Annally's Reports, K.B.
Annaly. Annaly's edition of Lee tenmpore Hardwicke.
Anne. Queen Anne (thus "1 Anne," denotes the first
year of the reign of Queen Anne).
Anson, Cont. Anson on Contracts.
Anstr. Anstruther's Reports, English Exchequer.
Anth. Anthon's New York Nisi Prius Reports ;—An-
thony's Illinois Digest.
Anth.N.P. Anthon's New York Nisi Prius Reports.
Anth.Shep. Anthony's edition of Shephard's Touch-
stone.
Ap.Justin. Apud Justinianum ;—In Justinian's Insti-
tutes.
App. Appleton's Reports, vols. 19, 20 Maine.
App.Cas. Appeal Cases, English Law Reports ;—Ap-
peal Cases, United States ;—Appeal Cases of the
different States ;—Appeal Cases, District of Co-
lumbia.
[1891] App.Cas. Law Reports, Appeal Cases, from
1891 onward.
App.Cas.Beng. Sevestre and Marshall's Bengal Re-
ports.
App.Ct.Rep. Bradwell's Illinois Appeal Court Re-
ports.
App.D. South African Law Reports, Appellate Divi-
sion.
App.D.C. Appeals, District of Columbia.
App.Div. Appellate Division, New York.
App.Jur.Act 1876. Appellate Jurisdiction Act, 1876,
39 & 40 Vict. c. 59.
App.R., N.Z. (or App.N.Z.). Appeal Reports, New Zea-
land.
App.Rep.Ont. Appeal Reports, Ontario.
Appe.Bre. Appendix to Breese's Reports.
Append. Appendix.
Appleton. Appleton's Reports, vols. 19, 20 Maine.
Ar.Rep. Argus Reports, Victoria.
Arabin. Decisions of Seargeant Arabin.
Arb.J. Arbitration Journal.
Arbuth. Arbuthnot's Select Criminal Cases, Mad-
ras.
Arch. Court of Arches, England.
Arch.Cr.PI. (or Archb.Crim.PI.). Archbold's Criminal
Pleading.
Arch.N.P. Archbold's Law of Nisi Prius.
Arch.P.L.Cas. Archbold's Abridgment of Poor Law
Cases.
Arch.Sum. Archbold's Summary of Laws of England.
Archb.Civil PI. Archbold's Civil Pleading.
Archb.Cr.Law. Archbold's Pleading and Evidence in
Criminal Cases.
Archb.Cr.Prac. & Pl. Archbold's Pleading and Evi-
dence in Criminal Cases.
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B.C.C.
Archb.Crim.P1. Archbold's Criminal Pleading.
Archb.Landl. & Ten. Archbold's Landlord and Ten-
ant.
Archb.N.P. Archbold's Nisi Prius Law.
Archb.New Pr. (or N.Prac.). Archbold's New Practice.
Arch b.Pr. Archbold's Practice.
Arch b.Pr.K.B. Archbold's Practice King's Bench.
Archer. Archer's Reports, Florida.
Archer & Hogue. Archer & Hogue's Reports, vol. 2
Florida.
Architects' L.R. Architects' Law Reports (Eng.).
Arg.Fr.Merc.Law. Argles (Napoleon), Treatise Upon
French Mercantile Law, etc.
Arg.Rep. Reports printed in Melbourne Argus, Aus-
tralia.
Ariz. Arizona ;—Arizona Reports.
Ark. Arkansas;—Arkansas Reports ;—Arkley's Jus-
ticiary Reports, Scotland.
Ark.Just. Arkley's Justiciary Reports, Scotland.
Ark.L.J. Arkansas Law Journal, Fort Smith.
Ark.L.Rev. Arkansas Law Review.
Arkl. (or Arkley). Arkley's Justiciary Reports, Scot-
land.
Arms.Br.P.Cas. Armstrong's Breach of Privilege
Cases, New York.
Arms.Gon.Elec. Armstrong's New York Contested
Elections.
Arms.Elect.Cas. Armstrong's Cases of Contested Elec-
tions, New York.
Arms.M. & 0. (or Arms.M ac. & 0g.). Armstrong, Ma-
cartney, & Ogle's Irish Nisi Prius Reports.
Arms.Tr. Armstrong's Limerick Trials, Ireland.
Arn. Arnold's English Common Pleas Reports ;—Ar-
not's Criminal Trials, Scotland.
Arn.El.Cas. Arnold's Election Cases. English.
Arn.Ins. Arnould on Marine Insurance.
Arn. & H. (or Arn. & Hod.). Arnold & Hodges' Eng-
lish Queen's Bench Reports.
Arn. & Hod.B.C. Arnold & Hodges' English Bail Court
Reports.
Arn. & Hod.Pr.Cas. Arnold & Hodges' Practice Cases,
English.
Arnold. Arnold's Common Pleas Reports, English.
Arnot Cr.C. Arnot's Criminal Cases, Scotland.
Artic.Cleri. Articles of the clergy.
Articull sup.Chart. Articles upon the charters.
Ashe. Ashe's Tables to the Year Books (or to Coke's
Reports ;—or to Dyer's Reports).
Ash m. Ashmead's Pennsylvania Reports.
Ashton. Ashton's Reports, vols. 9-12 Opinions of the
United States Attorneys General.
Ash urst MS. Ashurst's Paper Books, Lincoln's Inn
Library ;—Ashurst's Manuscript Reports, printed
in vol. 2 Chitty.
Asp. Aspinall, English Admiralty.
Asp.Cas. (or Rep.). English Maritime Law Cases, new
series by Aspinall.
Asp.M.C. Aspinall's Maritime Cases.
Aspin. Aspinall's Maritime Cases, Eng.
Ass. Book of Assizes.
Ass.Jerus. Assizes of Jerusalem.
Assem. Assembly, State Legislature.
Asslz. Assizes.
Ast.Ent. Aston's Entries.
Atch. Atchison's English Navigation and Trade Re-
ports.
Ath.Mar.Sett. Atherly on Marriage Settlements.
Atk. Atkyn's English Chancery Reports.
Atk.P.T. Atkyn's Parliamentary Tracts.
Atk.Sher. Atkinson on Sheriffs.
Atl. Atlantic Reporter.
AtI.Mo. Atlantic Monthly.
MLR. (or Rep.). Atlantic Reporter.
Atty.Gen.Op. Attorney-Generals' Opinions, United
States.
Atty.Gen.Op.N.Y. Attorney-Generals' Opinions, New
York.
Atwater. Atwater's Reports, vol. 1 Minnesota.
Auch. Auchinleck's Manuscript Cases, Scotch Court
of Session.
Auct.Reg. & L.Chron. Auction Register and Law
Chronicle.
Aul.Gel.Noctes Atticw. Aulus Gellius, Noctes Atticze.
Aust. Austin's English County Court Cases ,—Aus-
tralia.
Aust.Jur. Austin's Province of Jurisprudence.
Aust.Jur.Abr. Austin's Lectures on Jurisprudence,
abridged.
Aust.L.J. Australian Law Journal.
Aust.L.T. Australian Law Times.
Austin (Ceylon). Austin's Ceylon Reports.
Austin C.C. Austin's English County Court Reports.
Austr.C.L.R. Commonwealth Law Reports, Australia.
A u str.J u r. Australian Jurist.
Austr.L.T. Australian Law Times.
Ayl.Pan. See Ayliffe.
Ayl.Pand. See Ayliffe.
Ayl.Par. See Ayliffe..
Ayliffe. Ayliffe's Pandects;—Ayliffe's Parergon Juris
Canonici Angelicani.
Ayliffe Parerg. See Ayliffe.
Azuni, Mar.Law. Azuni on Maritime Law.
BAJ 1. California Jury Instructions, Civil.
B.G. Bankruptcy Cases ;—British Columbia.
B.C.C. Bail Court Reports (Saunders & Cole);—Bail
Court Cases (Lowndes & Maxwell) ;—Brown's
Chancery Cases.
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B.C.R.
B.C.R. (or B.C.Rep.). Saunders & Cole's Bail Court
Reports, English ;—British Columbia Reports.
B.Ch. Barbour's Chancery Reports, New York.
B.D. & 0. Blackham, Dundas & Osborne's Nisi Prius
Reports, Ireland.
B.L.R. Bengal Law Reports.
B.M. Burrow's Reports tempore Mansfield ;—Ben
Monroe's Reports, Kentucky ;—Moore's Reports,
English.
B.Mon. (or B.Monr.). Ben Monroe's Reports, Ken-
tucky.
B.Moore. Moore's Reports, English.
B.N.A. Bureau of National Affairs.
B.N.C. Bingham's New Cases, English Common
Pleas ;—Brooke's New Cases, English King's
Bench ;—Busbee's North Carolina Law Reports.
B.N.P. Buller's Nisi Prius.
B.P.B. Buller's Paper Book, Lincoln's Inn Library.
B.P.C. Brown's Cases in Parliament.
B.P.L.Cas. Bott's Poor Law Cases.
B.P.N.R. Bosanquet & Puller's New Reports, English
Common Pleas.
B.P.R. Brown's Parliamentary Reports.
B.R. Bancus Regis, or King's Bench ;—Bankruptcy
Reports ;—Bankruptcy Register, New York ;—Na-
tional Bankruptcy Register Reports.
B.R.C. British Ruling Cases.
B.R.H. Cases in King's Bench tempore Hardwicke.
B.T.A. Board of Tax Appeals, U. S.
B.U.L.Rev. Boston University Law Review.
B.W.C.C. Butterworth's Workmen's Compensation
Cases, Eng.
B. & A. Barnewall & Adolphus' English King's Bench
Reports ;—Barnewall & Alderson's English King's
Bench Reports ;—Baron & Arnold's English Elec-
tion Cases ;—Baron & Austin's English Election
Cases ;—Banning & Arden's Patent Cases.
B. & Ad. (or Adol.). Barnewall & Adolphus' English
King's Bench Reports.
B. & Ald. Barnewall & Alderson's English King's
Bench Reports.
B. & Arn. Barron & Arnold's Election Cases.
B. & Aust. Barron & Austin's English Election Cases.
B. & B. Broderip & Bingham's English Common Pleas
Reports ;—Ball & Beatty's Irish Chancery Re-
ports ;—Bowler & Bowers, vols. 2, 3 United States
Comptroller's Decisions.
B. & Bar. Bench and Bar.
B. & C. Barnewall & Cresswell's English King's Bench
Reports.
B. & C.Comp. Bellinger and Cotton's Annotated Codes
and Statutes, Or.
B. & D. Benloe & Dalison, English.
B. & F. Broderip & Fremantle's English Ecclesiastical
Reports.
B. & H. Blatchford & Howland's United States Dis-
trict Court Reports.
B. & H.Cr.Cas. (or B. & H.Lead.Cas.). Bennett &
Heard Leading Criminal Cases, Eng.'
B. & H.Dig. Bennett & Heard's Massachusetts Digest.
B. & H.Lead.Cas. Bennett & Heard's Leading Crim-
inal Cases.
B. & I. Bankruptcy and Insolvency Cases.
B. & L. Browning & Lushington's English Admiralty
Reports.
B. & ht (or B. & Macn.). Browne & Macnamara's Re-
ports, English.
B. & P. Bosanquet & Puller's English Common Pleas
Reports.
B. & P.N.R. Bosanquet & Puller's New Reports.
B. & S. Best & Smith's English Queen's Bench Re-
ports.
B. & V. Beling & Vanderstraaten's Reports, Ceylon.
Ba. & Be. Ball & Beatty's Irish Chancery Reports.
Bab.Auct. Babington on Auctions.
Bac.Abr. Bacon's Abridgment.
Bac.Aph. (or Bac.Aphorisms). Bacon's (Sir Francis)
Aphorisms.
Bac.Ben.Soc. Bacon on Benefit Societies and Life In-
surance.
Bac.Dig. Bacon's Georgia Digest.
Bac.I ns. Bacon on Benefit Societies and Life Insur-
ance.
Bao.Law Tracts (or Bac.I r.). Bacon's (Sir Francis)
Law Tracts.
Bac.Max. Bacon's (Sir Francis) Maxims.
Bao.Read.Uses. Bacon (Sir Francis), Reading upon
the Statute of Uses.
Bac.St.Uses. Bacon (Sir Francis), Reading upon the
Statute of Uses.
Bac.Works. Bacon's (Sir Francis), Works.
Bach. Bach's Reports, vols. 19-21 Montana.
Bacon. Bacon's Abridgment ;—Bacon's Aphorisms ;-
Bacon's Complete Arbitrator ;—Bacon's Elements
of the Common Law ;—Bacon on Government ;-
Bacon's Law Tracts ;—Bacon on Leases and
Terms of Years ;—Bacon's Maxims ;—Bacon on
Uses.
Bagl. Bagley's Reports, vols. 16-19 California.
Bagl. & H. Bagley and Harmen's California Reports.
Bail. Bailey's Law Reports, South Carolina.
Ball Ct.Cas. Lowndes & Maxwell's English Bail
Court Cases.
Bail Ct.Rep. Saunders & Cole's English Bail Court
Reports ;—Lowndes & Maxwell's English Bail
Court Cases.
Bal LON. Bailey's North Carolina Digest.
Baii.Eq. Bailey's Equity Reports, South Carolina.
Bail.L. Bailey's Law, South Carolina.
Balld. Baildon's Select Cases in Chancery (Selden
Society, vol. X.) England.
Bailey. Bailey's Law Reports, South Carolina Court
of Appeals.
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BARNET
Bailey, Ch. Bailey's Chancery Reports, South Caro-
lina.
Bailey Eq. Bailey's Equity Reports, South Carolina
Court of Appeals.
Bailey, Dict. Nathan Bailey's English Dictionary.
Bailey, Mast.Liab. Bailey's Law of Master's Liability
for Injuries to Servant.
Balll.Dig. Baillie's Digest of Mohammedan Law.
Bainb.Mines. Bainbridge on Mines and Minerals.
Baker, Quar. Baker's Law of Quarantine.
Bald.App.l I Pet. Baldwin's Appendix to 11 Peters.
Bald. (or Bald.C.C. or Baldw.). Baldwin's United
States Circuit Court Reports ;—Baldus (Commen-
tator on the Code) ;—Baldasseroni (on Maritime
Law).
Baldw.Dig. Baldwin's Connecticut Digest.
Balf. (or Balf.Pr.). Balfour's Practice, Laws of Scot-
land.
Ball & B. Ball & Beatty's Irish Chancery Reports.
Ballinger's An n.Co des & St. Ballinger's Annotated
Codes and Statutes, Wash.
Balt.L.Tr. Baltimore Law Transcript.
Ban. & A. Banning & Arden's Patent Cases, U. S.
Bank.and Bankruptcy and Insolvency Reports,
English.
Ban k.Cas. Banking Cases.
Bank.Ct.Rep. Bankrupt Court Reports, New York ;—
The American Law Times Bankruptcy Reports are
sometimes thus cited.
Ban ksGaz. Bankruptcy Gazette.
Bank.l. (or Bank.l nst.). Bankter's Institutes of Scot-
tish Law.
Bank.L.J. Banking Law Journal.
Ba n k.Reg. Bankruptcy Register.
Ban k.Rep. American Law Times Bankruptcy Re-
ports.
Bank. & Ins. (or Bank. & I ns.R.). Bankruptcy and In-
solvency Reports, Eng.
Banker's Law J. Banker's Law Journal.
Ban kr.Act. Bankruptcy Act.
Ban kr.Form. Bankruptcy Forms.
Banks. Banks' Reports, vols. 1-5 Kansas.
Bann. Bannister's Reports, English Common Pleas.
Bann.Br. Bannister's edition of 0. Bridgman's Eng-
lish Common Pleas Reports.
Bann. & A. Banning & Arden (U. ,S.).
Bann. & A.Pat.Cas. Banning & Arden's Patent Cases.
Bar. Barnardiston's English King's Bench Reports ;
—Barnardiston's Chancery ;—Bar Reports in all
the Courts, English ;—Barbour's Supreme Court
Reports, New York ;—Barrows' Reports, vol. 18
Rhode Island.
Bar.Ch. (or Chy.). Barnardiston's English Chancery
Reports.
Bar Ex.Jour. Bar Examination Journal (London).
Bar.Mag. Barrington's Magna Charta.
Bar.N. Barnes' Notes, English Common Pleas Re-
ports.
Bar.Obs.St. Barrington's Observations upon the Stat-
utes from Magna Charta to 21 James I.
Bar. & Ad. Barnewall & Adolphus' English King's
Bench Reports.
Bar. & Al. Barnewall & Alderson's English King's
Bench Reports.
Bar. & Arn. Barron & Arnold's English Election
Cases.
Bar. & Aust. (or Au.). Barron & Austin's English Elec-
tion Cases.
Bar. & Cr. Barnewall & Cresswell's English King's
Bench Reports.
Barb. Barbour's Supreme Court Reports, New York;
—Barber's Reports, vols. 14-24 Arkansas.
Barb.Abs. Barbour's Abstracts of Chancellor's De-
cisions, New York.
Barb.App.Dig. Barber's Digest, New York.
Barb.Ark. Barber's Reports, vols. 14-24 Arkansas.
Barb.Ch. Barbour's New York Chancery Reports.
Barb.Ch.Pr. Barbour's Chancery Practice (Text
Book).
Barb.Cr.Law. Barbour's Criminal Law.
Barb.Dig. Barber's Digest of Kentucky.
Barb.G.L. Barber's Gold Law, South Africa.
Barb.S.C. Barbour's Supreme Court Reports, New
York.
Barb. & C.Ky.St. Barbour and Carroll's Kentucky
Statutes.
Barbe. Barber's Reports, Arkansas. See Barb. Ark.
Barc.Dig. Barclay's Missouri Digest.
Barn. Barnardiston's English King's Bench Reports;
—Barnes' English Common Pleas Reports ;—
Barnfield's Reports, vols. 19-20 Rhode Island.
Barn.Ch. Barnardiston's English Chancery Reports.
Barn.No. Barnes' Note of Cases, English Common
Pleas.
Barn. & A. Barnewall & Alderson's English King's
Bench Reports.
Barn. & Ad. (or Adol.). Barnewall & Adolphus' Eng-
lish King's Bench Reports.
Barn. & Ald. Barnewall & Alderson's English King's
Bench Reports.
Barn. & C. (or Cr., Cress.). Barnewall & Cresswell's
English King's Bench Reports.
Barnard.Ch. Barnardiston's Chancery Reports.
Barn ard.K.B. Barnardiston's King's Bench Reports.
Barnes. Barnes' Practice Cases, English.
Barnes, N.C. Barnes' Notes of Cases in Common
Pleas.
Barnes Notes. Barnes' Notes, Eng.
Barnes's Fed.Code. Barnes's Federal Code.
Barnet. Barnet's Reports, vols. 27-29 English Central
Criminal Courts Reports.
1803

PDF page 1878

BARNF. & S.
Beavan, Ch. Beavan's English Rolls Court Reports.
Beaw. (or Beaw.Lex Mere.). Beawes' Lex Merca-
toria.)
Beck. Beck's Reports, vols. 12-16 Colorado ; also vol.
1 Colorado Court of Appeals.
Beck, Med.Jur. Beck's Medical Jurisprudence.
Bedell. Bedell's Reports, vol. 163 New York.
Bee. Bee's United States District Court Reports.
Bee Adm. Bee's Admiralty. An Appendix to Bee's
District Court Reports.
Bee C.C.R. Bee's Crown Cases Reserved, English.
Beebe Cit. Beebe's Ohio Citations.
Bel. Bellewe's English King's Bench Reports ;—Bel-
lasis' Bombay Reports ;—Beling's Ceylon Reports ;
—Bellinger's Reports, vols. 4-8 Oregon.
Beling. Beling's Ceylon Reports.
Beling & Van. Beling & Vanderstraaten's Ceylon Re-
ports.
Bell. Bell's Dictionary and Digest of the Laws of
Scotland ;—Bell's English Crown Cases Reserved ;
—Bell's Scotch Appeal Cases ;—Bell's Scotch Ses-
sion Cases ;—Bell's Calcutta Reports, India ;-
Bellewe's English King's Bench Reports ;-
Brooke's New Cases, by Bellewe ;—Bellinger's Re-
ports, vols. 4-8 Oregon ;—Bellasis' Bombay Re-
ports.
Bell Ap.Ca. Bell's Scotch Appeals.
Bell App.Cas. Bell's Scotch House of Lords (Appeal)
Cases.
Bell C.C. Bell's English Crown Cases Reserved ;—
Bellasis' Civil Cases, Bombay ;—Bellasis' Crim-
inal Cases, Bombay.
Bell C.H.C. Bell's Reports, Calcutta High Court.
Bell Gas. Bell's Cases, Scotch Court of Session.
Bel I.Cas.t.H e n.V I I I . Brooke's New Cases (collected
by Bellewe).
Bell.Cas.t.Rieh.11. Bellewe's English King's Bench
Reports (time of Richard II).
Bell, Comm. Bell's Commentaries on the Law of Scot-
land.
Bell Cr.C. Bell's English Crown Cases ;—Beller's
Criminal Cases, Bombay.
Bell, Diet. Bell's Dictionary and Digest of the Laws
of Scotland.
Bell fol. Bell's folio Reports, Scotch Court of Session.
Bell H.C. Bell's Reports, High Court of Calcutta.
Bell H.L. (or Bell, H.L.Sc.). Bell's House of Lord's
Cases, Scotch Appeals.
Bell Med.L.J. Bell's Medico Legal Journal.
Bell Oct. (or 8vo.). Bell's octavo Reports, Scotch
Court of Session.
Bell P.C. Bell's Cases in Parliament, Scotch Appeals.
Bell Put.Mar. Bell's Putative Marriage Case, Scot-
land.
Bell Sc.App. Bell's Appeals to House of Lords from
Scotland.
Bell Sc.Cas. Bell's Scotch Court of Session Cases.
Barnf. & S. Barnfield and Stiness' Reports, vol. 20
Rhode Island.
Barnw.D1g. Barnwall's Digest of the Year Books.
Barr. Barr's Reports, vols. 1-10 Pennsylvania State ;
—Barrows' Reports, vol. 18 Rhode Island.
Barr.MSS. Barradall's Manuscript Reports, Virginia.
Barr.St. Barrington's Observations upon the Statutes
from Magna Charta to 21 James I.
Barr. eArn. Barron & Arnold's English Election
Cases.
Barr. & Aus. Barron & Austin's English Election
Cases.
BarrIng.Obs.St. (or BarrIng.St.).  Barrington's Ob-
servations upon the Statutes from Magna Charta
to 21 James I.
Barrows. Barrows' Reports, vol. 18 Rhode Island.
Bart.El.Cas. Bartlett's Congressional Election Cases.
Bat.Dlg. Battle's Digest, North Carolina.
Bat.Rev.St. Battle's Revisal of the Public Statutes of
North Carolina.
Bates (or Bates Ch.). Bates's Chancery Reports, Del.
Bates' Ann.St. Bates' Annotated Revised Statutes,
Ohio.
Bates' Dig. Bates' Digest, Ohio.
Bates, Part. Bates' Law of Partnership.
Batt. (or Batty.). Batty's Irish King's Bench Reports.
Battle's Revisal. Battle's Revisal of the Public Stat-
utes of North Carolina.
Batts' Ann.St.Batts' Rev.St. Batts' Annotated Revis-
ed Civil Statutes, Tex.
Bax. (or Baxt.). Baxter's Reports, vols. 60-68 Tennes-
see.
Bay. Bay's South Carolina Reports ;—Bay's Reports,
vols. 1-3 and 5-8 Missouri.
Bayley, Bills. Bayley on Bills.
Baylies, Sur. Baylies on Sureties and Guarantors.
Beach, Contrib.Neg. Beach on Contributory Negli-
gence.
Beach, Eq.Prac. Beach's Modern Practice in Equity.
Beach, lnj. Beach on Injunctions.
Beach, Mod.Eq.Jur. Beach's Commentaries on Mod-
ern Equity Jurisprudence.
Beach, Priv.Corp. Beach on Private Corporations.
Beach, Pub.Corp. Beach on Public Corporations.
Beach, Rec. Beach on the Law of Receivers.
Beas. Beasley's New Jersey Chancery Reports.
Beasl. Beasley, N.J.; Beasley, New Jersey Equity
Reports.
Beat. (or Beatt.; Beatty). Beatty's Irish Chancery
Reports.
Beay . Beavan's English Rolls Court Reports.
Beay .R. & C.Cas. English Railway and Canal Cases,
by Beavan and others.
Beay . & Wal.Ry.Cas. Beavan & Walford's Railway
and Canal Cases, England.
1804

PDF page 1879

BIGELOW, ESTOP.
Benl. & Dal. Benloe & Dalison's Common Pleas Re-
ports.
Bonn. Bennett, Cal.
Benn.Cal. Bennett's Reports, vol. 1 California.
Ben n. (Dak.) Bennett's Dakota Cases.
Benn.F.I.Cas. Bennett's Fire Insurance Cases.
Ben n. (Mo.) Bennett's Missouri Cases.
Benn. & H.Cr.Cas. Bennett & Heard's Leading Crim-
inal Cases.
Benn. & H.Dig. Bennett & Herard Massachusetts Di-
gest.
Benne. Reporter of vol. 7, Modern Reports.
Bennett. Bennett's Reports, vol. 1 California ;—Ben-
nett's Reports, vol. 1 Dakota ;—Bennett's Reports,
vols. 16-21 Missouri.
Bent. Bentley's Reports, Irish Chancery.
Benth.Ev. (or Benth.Jud.Ev.). Bentham on Rationale
of Judicial Evidence.
Bentl.Atty.-Gen. Bentley's Reports, vols. 13-19 At-
torneys-General's Opinions.
Beor. Queensland Law Reports.
Ber. Berton's New Brunswick Reports.
Berk Co.L.J. (or Berks). Berk County Law Journal,
Pa.
Bern. Bernard's Church Cases, Ireland.
Berry. Berry's Reports, vols. 1-28 Missouri Court of
Appeals.
Bert. Berton's New Brunswick Reports.
Best, Ev. Best on Evidence.
Best, Pres. (or Best, Presumptions). Best on Pre-
sumptions of Law and Fact.
Best & S. (or Best & Sm.). Best & Smith's English
Queen's Bench Reports.
Bett's Dec. Blatchford and Howland's United States
District Court Reports ;—Olcott's United States
District Court Reports.
Bev. (Ceylon), (or Beven). Beven's Ceylon Reports.
Bev.Pat. Bevill's Patent Cases, English.
Bev. & M. Bevin & Mill's Reports, Ceylon.
Bibb. Bibb's Reports, Kentucky.
Bick. (or Bick. & Hawl.). Bicknell & Hawley's Re-
ports, vols. 10-20 Nevada.
Bick. (I n.) Bicknell's Reports, India.
Bid.I ns. Biddle on Insurance.
Bid.War.Sale Chat. Biddle on Warranties in Sale
of Chattels.
Big. Bignell's Reports, India.
Big.Cas. Bigelow's Cases, William I to Richard I.
Bigg.L.I.Cas. (or BIg.L. & A.Ins.Cas.). Bigelow's Life
and Accident Insurance Cases.
Big.0v.Cas. Bigelow's Overruled Cases.
Big.Plac. Bigelow's Placita Anglo-Normannica,
BIg.Torts. Bigelow on Torts.
Bigelow, Estop. Bigelow on Estoppel.
1805
Bell So.Dig. Bell's Scottish Digest.
Bell Ses.Cas. Bell's Cases in the Scotch Court of Ses-
sion.
Bellas. 'Bellasis' Criminal (or Civil) Cases, Bombay.
Bellewe. Bellewe's English King's Bench Reports.
Bellewe t.Hen.V I I I, Brooke's New Cases (collected by
Bellewe).
Bellinger. Bellinger's Reports, vols. 4-8 Oregon.
Belli n gh.Tr. Report of Bellingham's Trial.
Belt Bro. Belt's edition of Brown's Chancery Re-
ports.
Belt Sup. (or Belt Sup.Ves.). Belt's Supplement to
Vesey Senior's English Chancery Reports.
Belt Ves.Sen. Belt's edition of Vesey Senior's English
Chancery Reports.
Ben. Benedict's United States District Court Reports.
Ben.Adm. Benedict's Admiralty Practice.
Ben.F.I.Cas. Bennett's Fire Insurance Cases.
Ben.I ns.Cas. Bennett's Insurance Cases.
Ben Mon. Ben Monroe's Reports, Kentucky.
Ben. & Dal. Benloe & Dalison's English Common
Pleas Reports.
Ben. & H.L.C. Bennett & Heard's Leading Criminal
Cases.
Ben. & S.Dig. Benjamin & Slidell's Louisiana Digest.
Bench & B. Bench and Bar (periodical), Chicago.
Bench & Bar. Bench and Bar.
Bendl. Bendloe (see Benl.).
Bendloe. Bendloe's or New Benloe's Reports, English
Common Pleas, Edition of 1661.
Boned. Benedict's United States District Court Re-
ports.
Beng.L.R. Bengal Law Reports, India.
Be n g. L.R.A p p.0 a s. Bengal Law Reports, Appeal
Cases (India).
Beng.L.R.P.C. Bengal Law Reports, Privy Council
(India).
Beng.L.R.Supp. Bengal Law Reports, Supp. (India).
Beng.S.D.A. Bengal Sudder Dewanny Adawlut Re-
ports.
Benj. Benjamin. New York Annotated Cases, 6 vols.
Benj.Sales. Benjamin on Sales.
Ben j.Ch a I m.B ills & N. Benjamin's Chalmer's Bills
and Notes.
Benl. Benloe's or Bendloe's English King's Bench Re-
ports.
Benl.K.B. Benloe's King Bench Reports, England.
Beni. & D. Benloe & Dallison, Eng.
Benl. In Ashe. Benloe at the end of Ashe's Tables.
Beni. In Kell. Benloe or Bendloe in Keilway's Re-
ports.
Benl.New. Benloe's Reports, English King's Bench.
Ben1.01d. Benloe of Benloe & Dalison English Com-
mon Pleas Reports.

PDF page 1880

BIGELOW, LEAD.CAS.
Bigelow, Lead.Cas. Bigelow's Leading Cases on Bills
and Notes, Torts, or Wills.
Bign. Bignell's Indian Reports.
Bi-Mo.L.Rev. Bi-Monthly Law Review.
Bin. Binney's Pennsylvania Reports.
Bin.Dig. Binmore's Digest, Michigan.
Bing. Bingham's English Common Pleas Reports.
Bing.N.C. Bingham's New Cases, English Common
Pleas.
BI n n. Binney's Pennsylvania Reports.
Binns' Just. Binns' Justice (Pa.).
Birds.St. Birdseye's Statutes, New York.
Biret, Vocab. Biret, Vocabularie des Cinq Codes,
ou definitions simplifdes des termes de droit et
de jurisprudence exprimes dan ces codes.
Bis. (or Biss.). Bissell's United States Circuit Court
Reports.
Bish.Cont. Bishop on Contracts.
Bish.Cr.Law. Bishop on Criminal Law.
Bish.Cr.Proc. (or Bich.Crim.Proc.). Bishop on Crim-
inal Procedure.
Bish.Mar. & Div. (or Bish.Mar., Div. & Sep.) Bishop
on Marriage, Divorce, and Separation.
Bish.New Cr.Law. Bishop's New Criminal Law.
Bish.New Cr.Proc. Bishop's New Criminal Proce-
dure.
Bish.Non-Cont.Law. Bishop on Non-Contract Law,
Rights and Torts.
Bish.St.Crimes. Bishop on Statutory Crimes.
Bishop Dig. Bishop's Digest, Montana.
Bisp.Eq. (or Bisph.Eq.). Bispham's Equity.
Biss. (or Bis.). Bissell's United States Circuit Court
Reports.
Bissett, Est. Bissett on Estates for Life.
Bit. & Wise. Bittleston and Wise, New Magistrate
Cases, English.
Bitt. Bittleston's Reports in Chambers, Q. B.
Bitt.Chamb.Rep. Bittleston's Chamber Reports, Eng-
land.
Bitt.Pr.Cas. (or BIt.Prac.Cas.) Bittleston's Practice
Cases, English.
BItt.W. & P. Bittleson, Wise & Parnell's Reports,
vols. 2, 3 New Practice Cases.
Bk. Black's United States Supreme Court Reports.
BI. Black's United States Supreme Court Reports;
—Blatchford's United States Circuit Court Re-
ports ;—Blackford's Indiana Reports ;—Henry
Blackstone's English Common Pleas Reports ;—
W. Blackstone's English King's Bench Reports;
—Blackstone.
BI.C.C. Blatchford's United States Circuit Court Re-
ports.
BI.Com. (or BI. Comm.). Blackstone's Commentaries.
BI.Dict. Black's Dictionary.
BI.D. & O. Blackham, Dundas & Osborne's Irish Nisi
Prius Reports.
BI.H. Henry Blackstone's English Common Pleas Re-
ports.
BI.Judgm. Black on Judgments.
BI.Law Tracts. Blackstone's Law Tracts.
BI.Prize (or BI.Pr.Cas.). Blatchford's Prize Cases.
B1.13. (or BI.W.). Sir William - Blackstone's English
King's Bench Reports.
Bl. & H. (or BI. & How.). Blatchford & Howland's
United States District Court Reports ;—Blake &
Hedges' Reports, vols. 2-3 Montana.
& W.Mi nes. Blanchard & Weeks' Leading Cases
on Mines.
Bla.Ch. Bland's Maryland Chancery Reports.
Bla.Com. Blackstone's Commentaries.
Bla.H. Henry Blackstone's English Common Pleas
Reports.
Bla.R. William Blackstone's English . Reports.
BIa.W. Sir William Blackstone's Reports English
King's Bench.
Black. Black's United States Supreme Court Re-
ports ;—Black's Reports, vols. 30-53 Indiana ;-
H. Blackstone's English Common Pleas Reports ;
—W. Blackstone's English King's Bench Reports ;
—Blackford's Indiana Reports.
Black.Cond.Rep. Blackwell's Condensed Illinois Re-
ports.
Black, Const.Law. Black on Constitutional Law.
Black, Const.Prohib. Black's Constitutional Prohibi-
tions.
Black.D. & O. Blackham, Dundas & Osborne's Irish
Nisi Prius Reports.
Black Diet. Black's Law Dictionary.
Black.H. Henry Blackstone's English Common Pleas
Reports.
Black, I nterp.Laws. Black on Interpretation of Laws.
Black, I ntox.L1q. Black on Intoxicating Liquors.
Black, Judg. (or Black, Judgm.). Black on Judg-
ments.
Black.J us. Blackerby's Justices' Cases.
Black, Law Diet. Black's Law Dictionary.
Black R. Black's United States Supreme Court Re.
ports ;—W. Blackstone's English King's Bench
Reports. See Black.
Black Shlp.Ca. Black's Decisions in Shipping Cases.
Black, St.Const. Black on Construction and Inter-
pretation of Laws.
Black, Tax Titles. Black on Tax Titles.
Black.W. W. Blackstone's English King's Bench Re-
ports.
Blackb.Sales. Blackburn on Sales.
Blackerby. Blackerby (Eng.).
Blackf. Blackford's Indiana Reports.
Blackst.R. Wm. Blackstone's Reports, English.
Blackw.Cond. Blackwell's Condensed Reports, Illi-
nois.
Blackw.Tax Titles. Blackwell's Tax Titles.
1806

PDF page 1881

BRADW.
Bott Bott's Poor Laws.
Bott P.L.Cas. Bott's Poor Law Cases.
Bott P.L.Const. Const's Edition of Bott's Poor Law
Cases.
Bott Set.Cas. Bott's Poor Law (Settlement) Cases.
Bould. Bouldin's Reports, vol. 119 Alabama.
Bouln (or Boulnois). Boulnois' Reports, Bengal.
Bourke. Bourke's Reports, Calcutta High Court.
Bouv.I nst. Bouvier's Institutes of American Law.
Bouv.Law Diet. (or Bouv.L.D. or Bouvier). Bouvier's
Law Dictionary.
Bov.Pat.Ca. Bovill's Patent Cases.
Bow. Bowler & Bowers, vols. 2, 3, United States
Comptroller's Decisions.
Bowen, Pol.Econ. Bowen's Political Economy.
Bowyer, Mod.Civil Law. Bowyer's Modern Civil Law.
Boyce. Boyce's Reports, Delaware.
Br. Bracton ;— Bradford ;— Bradwell;— Brayton;
—Breese ;— Brevard  Brewster ;— Bridgman;
— Brightly ;— British ;— Britton ;— Brocken-
brough ;— Brooke ;— Broom ;— Brown ;— Brown-
low ;—Bruce. See below, especially under Bro.
Br.C.C. British (or English) Crown Cases (American
reprint) ;—Brown's Chancery Cases, England.
Br.Cr.Ca. British (or English) Crown Cases.
Br.Fed.Dig. Brightly's Federal Digest.
Br.N.C. Brooke's New Cases, English King's Bench.
Br.P.C. (or Bro.P.C.). Brown's English Parliamentary
Cases.
Br.Reg. Braithwaite's Register.
Br.Sup. Brown's Supplement to Morrison's Diction-
ary, Sessions Cases, Scotland.
Br.Syn. (or Bro.Syn. or Bro.Synop. Brown's Synop-
sis of Decisions, Scotch Court of Sessions.
Br. & B. Broderip & Bingham, English Common
Pleas.
Br. & Fr. (or Br. & F.Ecc.) Broderick & Fremantle's
Ecclesiastical Cases, English.
Br. & Gold. Brownlow & Goldesborough's English
Common Pleas Reports.
Br. & L. (or Br. & Lush.). Brownlow & Lushington's
English Admiralty Reports.
Br. & R. Brown & Rader's Missouri Reports.
Brae. (or Bract. or Bracton). Bracton de Legibus et
Consuetudinibus
Brad. Bradford's Surrogate Reports, New York ;-
Bradford's Iowa Reports ;—Bradwell's Illinois
Appeal Reports ;—Bradley's Reports, Rhode Is-
land.
Bradb. Bradbury's Pleading and Practice Reports,
N. Y.
Bradf. Bradford's New York Surrogate Reports ;—
Bradford's Reports, Iowa.
Bradf.Su r. Bradford's Surrogate Court Reports,
New York.
Bradw. Bradwell's Appellate Reports, Illinois.
Blair Co. (or Blair). Blair County Law Reports, Pa.
Blake. Blake's Reports, vols. 1-3 Montana.
Blake & H. Blake and Hedges' Reports, vols. 2-3
Montana.
Blan. & W.Lead.Cas. Blanchard & Weeks' Leading
Cases, Mines.
Blanc. & W.L.C. Blanchard & Weeks' Leading Cases
on Mines, etc.
Bland (or Bland's Ch.). Bland's Maryland Chancery
Reports.
Blatchf. (or Blatchf.C.C.). Blatchford's  United
States Circuit Court Reports—United States Ap-
peals.
Blatchf.Pr.Cas. Blatchford's Prize Cases.
Blatchf. H. Blatchford & Howland's United States
District Court Reports.
Bleck (or Bleckley). Bleckley's Reports, vols. 34, 35
Georgia.
BII. (or Bligh). Bligh's English House of Lords Re-
ports.
Bil.N.S. (or Bligh N.S.). Bligh's English House of
Lords Reports, New Series.
Bliss. Delaware County Reports, Pennsylvania.
Bliss, Code Pl. Bliss on Code Pleading.
Bliss I ns. Bliss on Life Insurance.
Bliss N.Y.Co. Bliss's New York Code.
Bloom.Man. (or Neg.) Cas. Bloomfield's Manumission
(or Negro) Cases, New Jersey.
Blount. Blount's Law Dictionary.
Blount Tr. Blount's Impeachment Trial.
Bluett. Bluett's Isle of Man Cases.
Bomb.H.Ct. Bombay High Court Reports.
Bomb.L.R. Bombay Law Reporter.
Born b.Sel.Cas. Bombay Select Cases.
Bomb.Ser. Bombay Series, Indian Law Reports.
Bond. Bond's United States Circuit Reports.
Boor. (or Booraem). Booraem's Reports, vols. 13-8
California.
Boote, Suit at Law. Boote's Suit at Law.
Booth, Real Act. Booth on Real Actions.
Borr. Borradaile's Reports, Bombay.
Bos. Bosworth's New York Superior Court Reports.
Bos. & P. Bosanquet and Puller's English Common
Pleas Reports.
Bos. & P.N.R. Bosanquet & Puller's New Reports,
English Common Pleas.
Bos. & P. (or Bos. & Put.). Bosanquet & Puller's Eng-
lish Common Pleas Reports.
Bos. & P.N.R. (or Bos. & Pul.N.R.). Bosanquet & Pull-
er's New Reports, English Common Pleas.
Bost.L.R. Boston Law Reporter.
Bost.Pol.Rep. Boston Police Court Reports.
Boston U.L.Rev. Boston University Law Review.
Bosw. Bosworth's New York Superior Court Re-
ports ;—Boswell's Reports, Scotch.
1807

PDF page 1882

BRADY IND.
Brady Ind. Brady's Index, Arkansas Reports.
Brame. Brame's Reports, vols. 66-72 Mississippi.
Branch. Branch's Reports, vol. 1 Florida.
Branch, Max. Branch's Maxims.
Branch, Princ. Branch's Principia Legis et Equitatis.
Brand. Brandenburg's Reports, vol. 21, Opinions At-
torneys-General.
Brand.F.Attachm. (or Brand. For Attachm.). Bran-
don on Foreign Attachment.
Brande. Brande's Dictionary of Science.
Brandt, Sur. Brandt on Suretyship and Guaranty.
BransiDig. Branson's Digest, Bombay.
Brant. Brantly's Reports, vols. 80-90 Maryland.
Brayt. Brayton's Vermont Reports.
Breese. Breese's Reports, vol. 1 Illinois.
Brett Ca.Eq. Brett's Cases in Modern Equity.
Brev. Brevard's South Carolina Reports.
Brev.Dig. Brevard's Digest.
Brev.Ju. Brevia Judicialia (Judicial Writs).
Brew. Brewer's Reports, vols. 19-26 Maryland.
Brewst. Brewster's Pennsylvania Reports.
Brick.Dig. Brickell's Digest, Alabama.
Bridg.Dig.ind. Bridgman's Digested Index.
Bridg.J. Sir J. Bridgman's English Common Pleas
Reports.
Bridg.0. Sir Orlando Bridgman's English Common
Pleas Reports—(sometimes cited as Carter).
Brief of Phi Delta Phi. Brief of Phi Delta Phi.
Bright. (Pa.) (or Brightly). Brightly's Nisi Prius Re-
ports, Pennsylvania.
Bright.Dig. (or Brightly, Dig.). Brightly's Digest, N.
Y.; Brightly's Digest, Penn. ;—Brightly's Analyt-
ical Digest of the Laws of the United States.
Bright.Elec.Cas. (or Bright.E.C. or Brightly, Elect.
Cas.). Brightly's Leading Election Cases, Pa.
Brlght.N.P. (or Brightly, N.P.). Brightly's Nisi Prius
Reports, Pa.
Brlght.Purd. (or Brightly's Purd.Dig.).  Brightly's
Edition of Purdon's Digest of Laws of Pennsyl-
vania.
Brightly. Brightly, Pa.
Brlsb. (or Brisbin) Minn. Reporter, vol. 1 Minnesota.
Brissonius. De verborum time ad ]us civile pertinent
signiflcatione.
Brit. Britton's Ancient Pleas of the Crown.
Brlt.Cr.Cas. British (or English) Crown Cases.
BrIt.Quar.Rev. British Quarterly Review.
Britt. Britton on Ancient Pleading.
Bro. See, also, Brown and Browne. Browne's Penn-
sylvania Reports ;—Brown's Michigan Nisi Prius
Reports ;—Brown's English Chancery Reports ;
—Brown's Parliamentary Cases ;—Brown's Re-
ports, vols. 53-65 Mississippi ;—Brown's Reports,
vols. 80-137 Missouri.
Bro. (Pa.). Browne's Pennsylvania Reports.
Bro.Abr. In Eq. Browne's New Abridgment of Cases
in Equity.
Bro.Adm. Brown's United States Admiralty Reports.
Bro.A. & R. Brown's United States District Court
Reports (Admiralty and Revenue Cases).
Bro.C.C. Brown's English Chancery Cases, or Re-
ports.
Bro.Ch. (or Bro.Ch.Cas. or Bro.Ch.R.). Brown's Eng-
lish Chancery Reports.
Bro.Civ.Law. Browne's Civil and Admiralty Law.
Bro.Ecc. Brooke's Six Judgments in Ecclesiastical
Cases (English).
Bro.Just. Broun's Justiciary, Scotland.
Bro.N.C. Brooke's New Cases, English King's Bench.
Bro.N.P. Brown's Michigan Nisi Prius Reports ;—
Brown's Nisi Prius Cases, English.
Bro.P.C. (or Br.P.C.). Brown's English Parliamenta-
ry Cases.
Bro.Supp. Brown's Supplement to Morrison's Dic-
tionary of the Court of Session, Scotland.
Bro.Syn. (or Bro.Synop.). Brown's Synopsis of Deci-
sions, Scotch Court of Session.
Bro.V.M. Brown's Vade Mecum.
Bro. & F. (or Bro. & Fr.). Broderick & Fremantle's
English Ecclesiastical Cases.
Bro. & G. Brownlow & Goldesborough's English Com-
mon Pleas Reports.
Bro. & Lush. Browning & Lushington's English Ad-
miralty Reports.
Brock. (or Brock. C.C. or Brock.Marsh.). Brocken-
brough's Marshall's Decisions, United States Cir-
cuit Court.
Brock.Cas. Brockenbrough's Virginia Cases.
Brock. & H. (or Brock. & Hol.). Brockenbrough &
Holmes, Virginia Cases.
Brod.Stair. Brodie's Notes to Stair's Institutes,
Scotch.
Brod. & B. (or Brod. & Bing.). Broderip & Bingham's
English Common Pleas Reports.
Brod. & F. (or Brod. & Fr.). Broderick & Freman-
tle's Ecclesiastical Cases.
Brodix Am. & E.Pat.Cas. Brodix's American & Eng-
lish Patent Cases.
Brook N.Cas. Brook's New Cases, Eng.
Brooke (or Brooke [Petit]). Brooke's New Cases, Eng-
lish King's Bench.
Brooke, Abr. Brooke's Abridgment.
Brooke Eccl. (or Brooke Eccl.Judg.). Brooke's Six
Ecclesiastical Judgments.
Brooke N.C. Brooke's New Cases, English King's
Bench Reports. (Bellewe's Cases tempore Henry
VIII.)
Brooke Six Judg. Brooke's Six Ecclesiastical Judg-
ments (or Reports).
Brooklyn Daily Rec. Brooklyn Daily Record.
1808

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BURF.
Brooklyn L.Rev. Brooklyn Law Review.
Brooks. Brooks' Reports, vols. 106-119 Michigan.
Broom, Com.Law. Broom's Commentaries on the
Common Law.
Broom, Leg.Max. (or Broom, Max.). Broom's Legal
Maxims.
Broom & H.Comm. Broom & Hadley's Commentaries
on the Law of England.
Broun (or Broun Just.). Broun's Reports, Scotch Jus-
ticiary Court.
Brown. Brown's Reports, vols. 53-65 Mississippi ;—
Brown's English Parliamentary Cases ;—Brown's
English Chancery Reports ;—Brown's Law Dic-
tionary ;—Brown's Scotch Reports ;—Brown's
United States District Court Reports ;—Brown's
U. S. Admiralty Reports ;—Brown's Michigan Nisi
Prius Reports ;—Brown's Reports, vols. 4-25 Ne-
braska ;—Brownlow (& Goldesborough's) English
Common Pleas Reports ;—Brown's Reports, vols.
80-137 Missouri. See, also, Bro. and Browne.
Brown A. & R. Brown's United States District Court
Reports (Admiralty and Revenue Cases).
Brown, Adm. Brown's United States Admiralty Re-
ports.
Brown, C.C. (or Brown, Ch. or Brown Ch.Cas. or
Brown Ch.R.). Brown's English Chancery Cases
or Reports.
Brown, Civ. & Adm.Law. Brown's Civil and Admiral-
ty Law.
Brown Ecc. Brown's Ecclesiastical Reports, English.
Brown N.P. (or Brown N.P. [Mich.]). Brown's Michi-
gan Nisi Prius Reports.
Brown N.P.Cas. Brown's Nisi Prius Cases, English.
Brown P.C. Brown's Parliamentary Cases, English
House of Lords.
Brown, Parl.Cas. Brown's Parliamentary Cases, Eng-
lish House of Lords.
Brown, Sup. (or Brown Sup.Dec.). Brown's Supple-
ment to Morrison's Dictionary, Session Cases,
Scotland.
Brown Syn. Brown's Synopsis of Decisions, Scotch.
Brown's Roman Law. Brown's Epitome and Analysis
of Savigny's Treatise on Obligations in Roman
Law.
Brown. & Gold. Brownlow & Goldesborough's English
Common Pleas Reports.
Brown & H. Brown & Hemingway's Reports, vols. 53-
58 Mississippi.
Brown. & L. (or Brown. & Lush.). Browning & Lush-
ington's English Admiralty Reports.
Browne Bank Cas. (or Browns N.B.C.). Browne's
National Bank Cases.
Browne, Civ.Law. Browne's Civil and Admiralty
Law.
Browne. Browne's Pennsylvania Reports ;—Browne's
Reports, vols. 97-114 Massachusetts ;—Browne,
New York Civil Procedure. See also Bro. and
Brown.
Browne, Div. Browne's Divorce Uourt Practice.
Black's Law Dictionary Revised 4th Ed.-114
Browne, J ud.I nterp. Browne's Judicial Interpreta-
tion of Common Words and Phrases.
Browne, Prob.Pr. Browne's Probate Practice.
Browne, St.Frauds. Browne on Statute of Frauds.
Browne & G. (or Browne & Gray). Browne & Gray's
Reports, vols. 110-111 Massachusetts.
Browne & Macn. Browne & Macnamara'o English
Railway and Canal Cases.
Brown!. (or Brown!. & G. or Brown!. & Gold.). Brown-
low and Goldesborough, English Common Pleas
Reports.
Bru. (or Bruce). Bruce's Scotch Court of Session Re-
ports.
Brun. (or Brunner, Gol.Gas.). Brunner's Collective
Cases, United States.
Brunk.lr.Dig. Brunker's Irish Common Law Digest.
Brunner Sel.Cas. Brunner's Selected Cases United
States Circuit Courts.
Bt. Benedict's United States District Court Reports.
Buch. (or Buch.Rep.). Buchanan's (Eben J. or James)
Reports, Cape of Good Hope.
Buch.Cas. (or Tr.). Buchanan's Remarkable Criminal
Cases, Scotland.
Buch.Ct.Ap.Cape G.H. Buchanan's Court of Appeals
Reports, Cape of Good Hope.
Buch.E.Cape G.H. E. Buchanan's Reports, Cape of
Good Hope.
Buch.E.D.Cape G.H. Buchanan's Eastern District Re-
ports, Cape of Good Hope.
Buch.J.Cape G.H. J. Buchanan's Reports, Cape of
Good Hope.
Buck. Buck's English Cases in Bankruptcy ;—Buck's
Reports, vols. 7-8 Montana.
Buck.Cooke. Bucknill's Cooke's Cases of Practice,
Common Pleas.
Buck.Dec. Buckner's Decisions (in Freeman's Missis-
sippi Chancery Reports).
Buff.Super.Ct. (N.Y.). Sheldon's Superior Court Re-
ports, Buffalo, New York.
BuiI.N.P. Buller's Law of Nisi Prius, English.
Bull. & C.Dig. Bullard & Curry's Louisiana Digest.
Buller MSS. J. Buller's Paper Books, Lincoln's Inn
Library.
Bulletin Comp.L. Bulletin, Comparative Law Bureau.
Bulst. Bulstrode's English King's Bench Reports.
Bump, Fraud.Conv. Bump on Fraudulent Convey-
ances.
Bump's I nt.Rev.Law. Bump's Internal Revenue
Laws.
Bump N.C. Bump's Notes on Constitutional Decisions.
Bun b. Bunbury's English Exchequer Reports.
Bur. Burnett's Reports, Wisconsin.
Bur.. (or Burr.). Burrow's English King's Bench Re-
ports.
Bur.M. Burrow's Reports tempore Mansfield.
Burf. Burford's Reports, vols. 6-9 Oklahoma.
1809

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BURG.DIG.
C
C. Cowen's Reports, New York ;—Connecticut ;—Cal-
ifornia ;—Colorado ;—Canada (Province).
C.2d (or Cal.2d). California Reports, Second Series.
C.A. Court of Appeals.
C.A. (or Cal.App.). California Appellate Reports.
C.A.2d (or Cal.App.2d). California Appellate Reports,
Second Series.
C.A.Supp. (or Cal.App.Supp.). California Appellate
Reports Supplement.
C.A.2d Supp. (or Cal.App.2d Supp.). California Appel-
late Reports Second Series Supplement.
C.B. Chief Baron of the Exchequer ;—Common
Bench ;—English Common Bench Reports by Man-
ning, Granger & Scott.
C.B.D1g. Customs Bureau Digest.
C.B.N.S. Common Bench Reports, New Series.
C.B.R. Cour de Blanc de la Reine, Quebec.
C.C.A. United States Circuit Court of Appeals Re-
ports.
C.C.C. Choice Cases in Chancery.
C.C.Chr. (or C.C.Chron.). Chancery Cases Chronicle,
Ontario.
C.C.E. Caines' Cases in Error, New York;—Cases of
Contested Elections.
C.C.L.C. Civil Code, Quebec.
C.C.P. Code of Civil Procedure.
C.C.P.A. United States Court of Customs and Patent
Appeals.
C.C.Supp. City Court Reports, Supplement New York.
C.D. Commissioner's Decisions, United States Pat-
ent Office ;—Century Digest ;—Current Digest.
C.E.Gr. (or C.E.Green). C. E. Green's New Jersey
Equity Reports.
C.F.R. Code of Federal Regulations.
C.G.S.A. Connecticut General Statutes Annotated.
C.H. & A. Carrow, Hamerton & Allen's New Sessions
Cases, English.
C.I.R. Commissioner of Internal Revenue.
C.J. Corpus Juris.
C.J.Ann. Corpus Juris Annotations.
C.J.C. Couper's Judiciary Cases, Scotland.
C.J.Can. Corpus Juris Canonici.
C.J.Civ. Corpus Juris Civilis.
G.J.S. Corpus Juris Secundum.
C.L. English Common Law Reports, American Re-
print.
C.L.Ch. (or C.L.Chamb.Rep.). Common Law Chamber
Reports, Ontario.
C.L.Chamb. Chamber's Common Law, U.C.
C.L.J. California Law Journal.
C.L.J. & Llt.Rev. California Law Journal and Lit-
erary Review.
C.L.P.Act. English Common Law Procedure Act.
Burg.Dig. Burgwyn's Digest Maryland Reports.
Burge, Confl.Law. Burge on the Conflict of Laws.
Burge, Sur. Burge on Suretyship.
Burgess. Burgess' Reports, vols. 46-49 Ohio State.
Burke Tr. Burke's Celebrated Trials.
Burks. Burks' Reports, vols. 91-97 Virginia.
Burlamaqui (or Burl.Natural & Po1.Law). Burlama-
qui's Natural and Political Law.
Burlesque Reps. Skillman's New York Police Reports.
Burm.L.R. Burmah Law Reports.
Burn. Burnett's Reports, Wis.
Burn, Dict. Burn's Law Dictionary.
Burn, Ecc.Law. Burn's Ecclesiastical Law.
Burn, J.P. Burn's Justice of the Peace.
Burnet. Burnet's Manuscript Decisions, Scotch Court
of Session.
Burnett. Burnett's Wisconsin Reports ;—Burnett's
Reports, vols. 20-22 Oregon.
Burns' Ann.St. Burns' Annotated Statutes, Ind.
Burns' Rev.St. Burns' Annotated Statutes, Ind.
Burr. Burrow's English King's Bench Reports.
Burr.Law Dict. Burrill's Law Dictionary.
Burr.S.C. (or Burr.S.Cas. or Burr.Sett.Cas.). Bur-
rows' English Settlement Cases.
Burr Tr.Rob. (or Burr, Tr.). Burr's Trial, reported
by Robertson.
Burrill (or Burr.Dict.). Burrill's Law Dictionary.
Burrill, Assignm. Burrill on Assignments.
Burrill, Circ.Ev. Burrill on Circumstantial Evidence.
Burrill, Pr. Burrill's Practice.
Burrow. Burrow's Reports, English King's Bench.
Burrow, Sett.Cas. Burrow's English Settlement Cases.
Burt.Cas. Burton's Collection of Cases and Opinions.
Burt.Real Prop. Burton on Real Property.
Burt.Sc.Tr. Burton's Scotch Trials.
Bus.L.J. Business Law Journal.
Bush. Busbee's Law Reports, North Carolina.
Busb.Cr.Dig. Busbee's Criminal Digest, North Caro-
lina.
Busb.Eq. Busbee's Equity Reports, North Carolina.
Bush. Bush, Ky.
Bush. Bush's Reports, Kentucky.
Butl.Co.Litt. Butler's Notes to Coke on Littleton.
Butl.Hor.Jur. Butler's Horne Juridicce Subsecivm.
Butt's Sh. Butt's Edition of Shower's English King's
Bench Reports.
Buxton. Buxton's Reports, vols. 123-126 North Caro
lina.
Byles, Bills. Byles on Bills.
Bynk. Bynkershoek on the Law of War.
Bynk.Obs.Jur.Rom. Bynkershoek, Observationum Ju-
ris Romani Libri.
1810

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CAIRN'S DEC.
C.L.R. Common Law Reports, printed by Spottis-
woode ;—"English Common Law Reports" (1853-
1855 ;—California Law Review.
C.Leg.Rec. California Legal Record.
C.M. & R.. (or C.M.R.). Crompton, Meeson & Roscoe,
English Exchequer Reports.
C.N. Code Napoleon.
C.N.Conf. Cameron & Norwood's North Carolina Con-
ference Reports.
G.N.P. Cases at Nisi Prius.
C.N.P.C. Campbell's Nisi Prius Cases.
C.O. Common Orders.
C. of C.E. Cases of Contested Elections, United
States.
C.P.C. Code of Civil Procedure, Quebec.
C.P.C. (or Coop.). C. P. Cooper's English Chancery
Practice Cases.
C.P.C.t.Br. C. P. Cooper's English Chancery Reports
tempore Brougham.
C.P.C.t.Cott. C. P. Cooper's English Chancery Re-
ports tern pare Cottenham.
C.P.Cooper. Cooper's English Chancery.
C.P.D. (or C.P.Div.). Common Pleas Division, English
Law Reports (1875-1880).
C.P.Q. Code of Civil Procedure, Quebec (1897).
C.P.Rep. Common Pleas Reporter, Scranton, Penn-
sylvania.
C.P.U.C. Common Pleas Reports, Upper Canada.
C.Pr. Code of Procedure ; Code de Procedure Civile.
C.R. Chancery Reports ;—Code Reporter, New York.
C.R.N.S. Code Reports, New Series, New York.
C.Rob. C. Robinson, English Admiralty.
C.Rob. (or C.Rob.Adm.). Christopher Robinson's Re-
ports on English Admiralty.
C.S. Court of Session, Scotland.
C.S.B.C. Consolidated Statutes, British Columbia.
C.S.C. Consolidated Statutes of Canada, 1859.
C.S.L.C. Consolidated Statutes, Lower Canada.
C.S.M. Consolidated Statutes of Manitoba.
C.S.N.B. Consolidated Statutes of New Brunswick.
C.S.U.C. Consolidated Statutes of Upper Canada,
1859.
C.S. & J. Cushing, Storey & Josselyn's Election Cases.
See vol. 1 Cushing's Election Cases, Massachu-
setts.
C.S. & P. Craigie, Stewart & Paton's Scotch Appeal
Cases.
C.t.K. Cases tempore King (Macnaghten's Select
Chancery Cases, English).
C.t.N. Cases tempore Northington (Eden's English
Chancery Reports).
C.t.T. Cases tempore Talbot, English Chancery.
C.T heod. Codex Theodosiani.
C.U. California Unreported Cases.
C.W.Dud. C. W. Dudley's Law or Equity Reports,
South Carolina.
C. & A. Cooke & Alcock's Irish King's Bench Reports.
C. & C. Coleman & Caine's Cases, New York.
C. & D. Corbett & Daniel's English Election Cases ;-
Crawford & Dix's Abridged Cases, Irish.
C. & D.A.C. Crawford & Dix's Abridged Cases, Irish.
C. & D.C.C. Crawford & Dix's Irish Circuit Cases.
C. & E. Cababe & Ellis, English.
C. & F. Clark & Finnelly's English House of Lords
Reports.
C. & H.Dig. Coventry & Hughes' Digest.
C. & J. Crompton & Jervis' English Exchequer Re-
ports.
C. & K. Carrington & Kirwan's English Nisi Prius
Reports.
C. & L. Connor & Lawson's Irish Chancery Reports.
C. & L.C.C. Cane & Leigh's Crown Cases.
C. & L.Di g. Cohen & Lee's Maryland Digest.
C. & M. Crompton & Meeson's English Exchequer
Reports ;—Carrington & Marshman's English Nisi
Prins Reports.
C. & N. Cameron & Norwood's North Carolina Con-
ference Reports.
C. & O.R.Cas. English Railway and Canal Cases, by
Carrow & Oliver et al.
C. & P. Carrington & Payne's English Nisi Prins Re-
ports ;—Craig & Phillips' Chancery Reports.
C. & R. Cockburn & Rowe's English Election Cases.
C. & S.Dig. Connor & Simonton's South Carolina
Digest.
Ca. Case or Placitum ;—Cases (see Cas.).
Ca.t.Hard. Cases tempore Hardwicke.
Ca.t.K. Cases tempore King ;—Cases tempore King,
Chancery.
Ca.t.Talb. Cases tempore Talbot, Chancery.
Ca.tem p.F. Cases tempore Finch.
Ca.temp.H. Cases tempore Hardwicke, King's Bench.
Ca.temp.Holt. Cases tempore Holt, King's Bench.
Cab.Lawy. The Cabinet Lawyer.
Cab. & E. (or Cab. & El.). CababO & Ellis, English.
Cad w.D1g. Cadwalader's Digest of Attorney-Gener-
al's Opinions.
Cal. Caines' Term Reports, New York Supreme
Court,
Cal.Cas. (or Cal.Cas.Err.). Caines' New York Cases
in Error.
Cal.T.R. Caines' Term Reports, New York Supreme
Court.
Cain. Caines, New York.
Caines. Caines' Reports, New York Supreme Court.
Caines Cas. Caines' Cases, Court of Errors, New
York.
Cairn's Dec. Cairn's Decisions in the Albert Ar-
bitration.
1811

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CAL.
Cal. California ;—California  Reports ;—Calthrop's
English King's Bench Reports ;—Caldecott's
English Settlement Cases.
Cal.2d (or C.2d). California Reports, Second Series.
Cal.App. (or C.A.). California Appellate Reports.
Cal.App. California Appellate Reports.
Cal.App.2d (or C.A.2d). California Appellate Reports,
Second Series.
Cal.App.Su pp. (or C.A.Su pp.). California Appellate
Reports Supplement.
Cal.App.2d Supp. (or C.A.2d Supp.). California Ap-
pellate Reports, Second Series Supplement.
Cal.App.Dec. California Appellate Decisions.
Cal.App.Supp. 'California, Appellate Department of
the Superior Court.
Cal.Dec. California Decisions.
Cal.J.1.C. California Jury Instructions, Criminal.
Cal.Jur. California Jurisprudence.
Cal.L.J. California Law Journal; California Law
Journal, San Francisco.
Gal.L.R. Calcutta Law Reporter (Ind.).
Cal.L.Rev. California Law Review.
Cal.Leg.Rec. California Legal Record, San Francisco.
Cal.Rep. California Reports ;—Calthrop's English
King's Bench Reports.
Cal.Rptr. West's California Reporter.
Cal.S.B.J. State Bar Journal of California.
Cal.S.D.A. Calcutta Sudder Dewanny Adawlut Re-
ports.
Calc.Ser. (or Cal.Ser.). Calcutta Series Indian Law
Reports.
Cal.Unrep. California Unreported Cases.
Calcutta L.J. Calcutta Law Journal.
Cal d. Caldwell's Reports, vols. 25-36 West Virginia.
Cald. (or Gald.J.P. or Cald.M.Cas. or Gaid.S.C.). Cal-
decott's English Magistrate's (Justice of the
Peace) and Settlement Cases.
Call. Call's Virginia Reports.
Call.Sew. Callis on Sewers.
Callas, Sew. Callis on Sewers.
Calth. Calthrop's English King's Bench Reports.
Galt hr. Calthrop, Eng.
Calv.Parties. Calvert's Parties to Suits in Equity.
Calvin (or Calvin.Lex.Jurid.). Calvinus Lexicon
Juridicum.
Cam. Cameron's Reports, Upper Canada, Queen's
Bench.
Cam.Cas. Cameron's Cases, Can.
Cam.Duc. Camera Ducata (Duchy Chamber).
Cam.Op. Cameron's Legal Opinions, Toronto.
Cam.Scac. Camera Scaccaria (Exchequer Chamber).
Cam.Stell. Camera Stellata (Star Chamber).
Cam. & N. (or Cam. & Nor.). Cameron & Norwood's
North Carolina Conference Reports.
Cambria. Cambria County Legal Journal (Pa.).
Cambridge L.J. Cambridge Law Journal.
Cam d.Brit. (or Camden). Camden's Britannia.
Camp. Camp's Reports, vol. 1 North Dakota ;—Camp-
bell's English Nisi Prius Reports ;—Campbell's
Reports, vols. 27-58 Nebraska. See also Camp-
bell.
Cam p.Dec. (or Cam pb.Dec.). Campbell's Decisions.
Cam plives Ld.Ch. Campbell's Lives of the Lord
Chancellors.
Cam p.N.P. Campbell's English Nisi Prius Reports.
Campbell (or Campb. or Camp.). Campbell's English
Nisi Prius Reports ;—Campbell's Reports of
Taney's United States Circuit Court Decisions ;-
Campbell's Legal Gazette Reports, Pennsylvania ;
—Campbell's Reports, vols. 27-58 Nebraska.
Can.App.Cas. Canadian Appeal Cases.
Gan.B.R. Canadian Bar Review.
Can.Cr.Cas. Canadian Criminal Cases.
Can.Exch. Canada Exchequer Reports.
Can.Gaz. Canadian Gazette.
Can.L.J. Canada Law Journal.
Can.L.J.N.S. Canada Law Journal, New Series.
Can.L.R. 'Canada Law Reports, Exchequer Court and
Supreme Court.
Can.L.T.Occ.Notes. Canadian Law Times Occasional
Notes.
Can.Leg.N. Canada Legal News.
Can.Mun.J. Canadian Municipal Journal.
Can.R.Cas. (or Can.Ry.Cas.). Canadian Railway
Cases.
Can.S.C. Canada Supreme Court.
Can.S.C.Rep. Canada Supreme Court Reports.
Canada L.T. or (Can.L.T.). Canadian Law Times.
Canal Zone Sup.Ct. Canal Zone Supreme Court.
Cane & L. Cane & Leigh's Crown Cases Reserved.
Cape L.J. Cape Law Journal (South Africa).
Car. Carolus (as 4 Car. II.);—Carolina.
Car., H. & A. Carrow, Hamerton & Allen's New Ses-
sions Cases, English.
Car.L.J. Carolina Law Journal.
Car.Law Repos. Carolina Law Repository, N.C.
Car., 0. & B. English Railway & Canal Cases, by
Carrow, Oliver, Bevan et al.
Car. & K. (or Kir.). Carrington & Kirwan's English
Nisi Prius Reports.
Car. & M. (or Mar.). Carrington & Marshman's Eng-
lish Nisi Prius Reports.
Car. & 01. (or Car. & 0.). English Railway & Canal
Cases, by Carrow, Oliver et al.
Car. & P. Carrington's & Payne's English Nisi Prius
Reports.
Carl. Carleton, New Brunswick.
Carp.P.C. Carpmael's English Patent Cases.
Carpenter. Carpenter's Reports, vols. 02-53 Cali-
fornia.
1812

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[1891] CIL
Carr.Cas. Carran's Summary Cases, India.
Carr., Ham. & AL Carrow, Hamerton & Allen's New
Sessions Cases, English.
Carr. & K. Carrington & Kirwan.
Carr. & M. Carrington and Marshman's English Nisi
Prius Reports.
Carra tr. Carrau's edition of "Summary Cases,"
Bengal.
Cart. Cartwright's Cases, Canada.
Carter. Carter's English Common Pleas Reports,
same as Orlando Bridgman ;—Carter's Reports,
vols. 1, 2, Indiana.
Carth. Carthew's English King's Bench Reports.
Cartwr.Cas. Cartwright's Cases, Can.
Carv.Carr. Carver's Treatise on the Law Relating to
the Carriage of Goods by Sea.
Cary. Cary's English Chancery Reports.
Cas. Casey's Reports, vols. 25-36 Pennsylvania
State.
Cas.App. Cases of Appeal to the House of Lords.
Cas.Arg. & Dec. Cases Argued and Decreed in Chan-
cery, English.
Cas.B.R. Cases Banco Regis tempore William III.
(12 Modern Reports).
Cas.B.R.HoIt. Cases and Resolutions (of settlements ;
not Holt's King's Bench Reports).
Cas.C.L. Cases in Crown Law.
Cas.Ch. Cases in Chancery, English ;—Select Cases in
Chancery ;—Cases in Chancery (9 Modern Re-
ports).
Cas.Eq. Cases in Equity, Gilbert's Reports ;—Cases
and Opinions in Law, Equity, and Conveyancing.
Cas.Eq.Abr. Cases in Equity, Abridged, English.
Cas.F.T. Cases tempore Talbot, by Forrester, English
Chancery.
Cas.H.L. (or Cas.H. of L.). Cases in the House of
Lords.
Cas. in C. Cases in Chancery;—Select Cases in Chan-
cery.
Cas.K.B. Cases in King's Bench (8 Modern Reports).
Cas.K.B.t.H. (or Cas.K.B.t.Hardw.). Cases tempore
Hardwicke (W. Kelynge's English King's Bench
Reports).
Cas.L. & Eq. Cases in Law and Equity (10 Modern
Reports) ;—Gilbert's Cases in Law and Equity,
English.
Cas.P. (or Pall.). Cases in Parliament.
Cas.Pr. Cases of Practice, English King's Bench.
Cas.Pr.C.P. Cases of Practice, English Common Pleas
(Cooke's Reports).
Cas.Pr.K.B. Cases of Practice in the King's Bench.
Cas.R. Casey's Reports, vols. 25-36 Pennsylvania
State.
Cas.S.C. (Cape G.H.). Cases in the Supreme Court,
Cape of Good Hope.
Cas.Self Def. Horrigan & Thompson's Cases on Self-
Defense.
Cas.Sett. Cases of Settlement, King's Bench.
Gas.Six Glr. Cases on the Six Circuits, Ireland.
Cas.t.Ch.I I. Cases tempore Charles II., in vol. 3 of
Reports in Chancery.
Cas.t.F. Cases tempore Finch, English Chancery.
Cas.t.Geo.I. Cases tempore George I., English Chan-
cery (8, 9 Modern Reports).
Cas.t.H. (or Cas.t.Hardwicke or Hardw.). Cases
tempore Hardwicke, English King's Bench (Ridg-
way, Lee, or Annaly); West's Chancery Reports,
tempore Hardwicke.
Cas.t.Holt (or H.). Cases tempore Holt, English
King's Bench ;—Holt's Reports.
Cas.t.K. (or King). Select Cases tempore King, Eng-
lish Chancery (edited by Macnaghten) ;—Moseley's
Chancery Reports, tempore King.
Cas.t.Lee. (Phillimore's) Cases tempore Lee, English
Ecclesiastical.
Cas.t.Mac. Cases tempore Macclesfield (10 Modern
Reports).
Cas.t.Nap. Cases tempore Napier, by Drury, Irish
Chancery.
Cas.t.North. Cases tempore Northington (Eden's Eng-
lish Chancery Reports).
Cas.t.Plunk. Cases tempore Plunkett, by Lloyd &
Gould, Irish Chancery.
Cas.t.Q.A. Cases tempore Queen Anne (11 Modern
Reports).
Cas.t.Sugd. Cases tempore Sugden, Irish Chancery.
Cas.t.Tal. (or Taib.). Cases tempore Talbot, English
Chancery.
Cas.t.Wm.I I I. Cases tempore William III. (12 Mod-
ern Reports).
Cas.Tak. & Adj. Cases Taken and Adjudged (first edi-
tion of Reports in Chancery).
Cas.w.Op. Cases, with Opinions, by Eminent Counsel.
Cas.Wm.l. Bigelow's Cases, William I. to Richard I.
Case & Corn. Case and Comment.
Casey. Casey's Reports, vols. 25-36 Pennsylvania
State.
Cass.Dig. Cassel's Digest, Canada.
Cass.Sup.C.Prac. Cassel's Supreme Court Practice, 2d
edition by Masters.
Cates. Cates Reports, Tenn.
Cel.Tr. Burke's Celebrated Trials.
Cent. Central Reporter (Pa.).
Gent.Dict. Century Dictionary.
Cent.Dict. & Ency. Century Dictionary and Encyclo-
pedia.
Ce nt. Dig. Century Digest.
Cent.L.J. (or Cent.Law J.). Central Law Journal, St.
Louis, Mo.
Cent.L.Mo. Central Law Monthly.
[1891] Ch. Law Reports, Chancery Division, from
1891 onward.
1813

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CH.APP.
Ch.App. Chancery Appeal Cases, English Law Re-
ports.
Ch.App.Cas. Chancery Appeal Cases, English Law
Reports.
Ch.Cas. Cases in Chancery.
Ch.Cas.Ch. Choyce Cases in Chancery.
Ch.Cham. (or Ch.Ch.). Chancery Chamber Reports,
Ontario.
Ch.Cham b. Chancery Chambers, U.C.
Ch.CoLOp. Chalmers' Colonial Opinions.
Ch.Dig. Chaney's Digest, Michigan Reports.
Ch.Div. (or D.). Chancery Division, English Law Re-
ports (1870-1800).
Ch.PI. Chitty an Pleading.
Ch.Prec. Precedents in Chancery.
Ch.R.M. R. M. Charlton's Georgia Reports.
Ch.Rep. (or Ch.R. or Ch.Repts.). Reports in Chan-
cery ;—Irish Chancery Reports.
Ch.Rep.I r. Irish Chancery Reports.
Ch.Sent. Chancery Sentinel, Saratoga, New York.
Ch.T.U.P. T. U. P. Charlton's Georgia Reports.
Ch. & CI.Cas. Cripp's Church and Clergy Cases.
Chal.0p. Chalmers' Colonial Opinions.
Chain. (or Chamb.). Chamber Reports, Upper Canada.
Chamb.Dig.P.H.C. Chambers' Digest of Public Health
Cases.
Chamb.Rep. Chancery Chamber Reports, Ontario.
Chamber. Chamber Reports, Upper Canada.
Chambers' Cyclopmdia. Ephraim Chambers' English
Cyclopedia.
Chan. Chaney's Reports, vols. 37-58 Michigan ;-
Chancellor ;—Chancery (see Ch.).
C h a n.Se nti n e I. Chancery Sentinel, N.Y.
Chanc. Chancery (see Ch.).
Chand. Chandler's Reports, Wisconsin ;—Chandler's
Reports, vols. 20,38-44 New Hampshire.
Chand.Cr.Tr. (or Chand.Crim.Tr.). Chandler's Amer-
ican Criminal Trials.
Chaney. Chaney's Reports, vols. 37-58 Michigan.
Charl.Pr.Cas. Charley's English Practice Cases.
Charlt.R.M. R. M. Charlton's Georgia Reports.
Charlt. (or Charlt.T.U.P.). T. U. P. Charlton's Georgia
Reports.
Chase. Chase's United States Circuit Court Deci-
sions.
Chase, Steph.Dig.Ev. Chase on Stephens' Digest of
Evidence.
Chase's St. Chase's Statutes at Large, Ohio.
Chest.Co.Rep. (or Chester Go.Rep.). Chester County
Reports, Pa.
Chev. Cheves' South Carolina Law Reports.
Chev.Ch. (or Eq.). Cheves' South Carolina Equity Re-
ports.
Cheves. Cheves' Law Reports, South Carolina.
Chi.Bar Rec. Chicago Bar Record.
Chi.-Kent Rev. Chicago-Kent Review.
Chi.Leg.N. Chicago Legal News, Ill.
Chicago L.B. Chicago Law Bulletin, Ill.
Chicago, L.J. Chicago Law Journal.
Chicago L.Rec. Chicago Law Record.
Chicago L.T. Chicago Law Times.
Chip. Chipman's Reports, New Brunswick.
Chip.D. D. Chipman's Vermont Reports.
Chip.MS. Reports printed from Chipman's Manu-
script, New Brunswick.
Chip.N. N. Chipman's Vermont Reports.
Chi p.W. Chipman's New Brunswick Reports.
Chit. (or Chitt.). Chitty's English Bail Court Reports.
Chit.Archb.Pr. Chitty's Archbold's Practice.
Chit.Bills. Chitty on Bills.
Ghit.BI.Comm. Chitty's Blackstone's Commentaries.
Chit.Com.Law. Chitty on Commercial Law.
Chit.Cont. Chitty on Contracts.
Chit.Cr.Law (or Chit.Crim.Law). Chitty's Criminal
Law.
Chit.Gen.Pr. Chitty's General Practice.
Chit.Med.Jur. Chitty on Medical Jurisprudence.
Chit.Pl. Chitty on Pleading.
Chit.Pr. Chitty's General Practice.
Chit.St. Chitty's Statutes of Practical Utility.
Chitt. Chitty's English Bail Court Reports.
Chitty. Chitty on Bills.
Chitty, BI.Comm. Chitty's Edition of Blackstone's
Commentaries.
Chitty, Com.Law. Chitty on Commercial Law.
Choyce Cas.Ch. Choyce Cases in Chancery, Eng.
Chr.Rep. Chamber Reports, Upper Canada.
,Chr.Rob. Christopher Robinson's English Admiralty
Reports.
Chute, Eq. Chute's Equity under the Judicature Act.
Cic.Frag.de Repub. Cicero, Fragmenta de Republica.
Cin.Law Bull. Cincinnati Law Bulletin, Ohio.
Cin.Law Rev. Univ. of Cincinnati Law Review.
Cin.R. (or Cin.Rep. or Chine. [Ohio]). Cincinnati Su-
perior Court Reports, Ohio.
Ci n.Su p.Ct.Rep. (or Ci n.Su per.Ct.Rep'r.). Cincinnati
Superior Court Reporter, Ohio.
Cinc.L.Bull. Weekly Law Bulletin, Ohio.
Cir.Ct.Dec. Circuit Court Decisions, Ohio.
Cir.Ct.R. Circuit Court Reports, Ohio.
Cir.Ct.Rule. Circuit Court Rule.
City Ct.R. (or City Ct.Rep.). City Court Reports, New
York.
City Ct.R.Supp. (or City Ct.Rep.Supp.). City Court
Reports, Supplement, N.Y.
City Hall Rec. (or City H.Rec.). City Hall Recorder,
N.Y.
1814

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CODE REP.
City Hall Rep. City Hall Reporter, Lomas, N.Y.
Civ.Code. Civil Code.
Civ.Code Prac. Civil Code of Practice.
Civ.Prac.Act. Civil Practice Act.
Civ.Proc.R. (or Civ.Pro., Civ.Pro.R., Civ.Proc.Rep.).
Civil Procedure Reports, N.Y.
CI.App. Clark's Appeal Cases, House of Lords.
CI.Ch. Clarke's Chancery Reports, New York.
,CI.Home. Clerk Home, Scotch Session Cases.
CI. & Fin. (or F.). Clark & Finnelly's House of Lords
Cases.
CI. & Fin.N.S. House of Lords Cases, by Clark.
CI. & H. Clarke & Hall's Contested Elections in Con-
gress.
Clancy, Husb. & W. (or Clancy Rights). Clancy's
Treatise of the Rights, Duties and Liabilities of
Husband and Wife.
Clark. Clark, Pa.
Clark. English House of Lords Cases, by Clark ;—
Clark's Reports, vol. 58 Alabama ; Clark's Penn-
sylvania Law Journal Reports. See, also, Clarke.
Clark Dig. Clark's Digest, House of Lords Reports.
Clark's Code. Clark's Annotated Code of Civil Pro-
cedure, N.C.
Clark & F. (or Fin.). Clark & Finnelly's Reports, Eng-
lish House of Lords.
Clark & Fin.N.S. Clark's House of Lords Cases.
Clarke. Clarke's New York Chancery Reports ;—
Clarke's edition of vols. 1-8 Iowa ;—Clarke's Re-
ports, vols. 19-22 Michigan ;—Clarke's Notes of
Cases, Bengal. See, also, Clark.
Clarke Ch. (or Ch.R.). Clarke's New York Chancery
Reports.
Clarke Not. (or R. & 0.). Clarke's Notes of Cases, in
his "Rules and Orders," Bengal.
Clarke & H.Elec.Cas. Clarke & Hall's Cases of Con-
tested Elections in Congress.
Clarke & S.Dr.Cas. Clarke & Scully's Drainage Cases,
Ont.
Clayt. Clayton's English Reports, York Assizes.
Clem. Clemens' Reports, vols. 57-59 Kansas.
Clerk Home. Clerk Home's Decisions, Scotch Court of
Session.
Clay's Dig. Clay's Digest of Laws of Alabama.
Clev.I nsan. Clevenger's Medical Jurisprudence of In-
sanity.
Cleve.Law Rec. Cleveland Law Recorder, Ohio.
Cleve.Law Rep. Cleveland Law Reporter, Ohio.
CM. Clifford's United States Circuit Court Reports.
Clif. (South.) EI.Cas. Clifford's Southwick Election
Cases.
Clif. & Rick. (or CM. & R.). Clifford & Rickard's Eng-
lish Locus Standi Reports.
Cilf. & St. Clifford & Stephens' English Locus Stand'
Reports.
Cliff. Clifford's Reports, United States, First Circuit.
Clin.Dig. Clinton's Digest, New York.
Clk.Mag. Clerk's Magazine, London ;—Rhode Island
Clerk's Magazine.
Clow L.C. on Torts. Clow's Leading Cases on Torts.
Co. Coke's English King's Bench Reports.
Co.Ent. Coke's Entries.
Co.G. Reports and Cases of Practice in Common
Pleas tempore Anne, Geo. I., and Geo. II., by Sir
G. Coke. (Same as Cooke's Practice Reports.)
Co.l nst. Coke's Institutes.
Co.LItt. The First Part of the Institutes of the Laws
of England, or a Commentary on Littleton, by Sir
Edward Coke.
Co.P.C. Coke's Reports, English King's Bench.
Co.PI. Coke's Pleadings (sometimes published sep-
arately).
Co.R.(N.Y.). Code Reporter, New York.
Co.R.N.S. Code Reporter, New Series.
Co.Rep. Coke's Reports, King's Bench.
Cobb. Cobb's Reports, vols. 4-20 Georgia ;—Cobb's
Reports, vol. 121 Alabama.
Cobb, Dig. Cobb's Digest of Statute Laws, Ga.
Cobb.St.Tr. Cobbett's (afterwards Howell's) State
Trials.
Cobbey, Repl. Cobbey's Practical Treatise on the Law
of Replevin.
Cobbey's An n.St. Cobbey's Annotated Statutes, Neb.
Cochr. Cochran's Nova Scotia Reports ;—Cochrane's
Reports, vols. 3-7 North Dakota.
Cock.Tich.Ca. Cockburn's Charge in the Tichborne
Case.
Cock. & Rowe (or Cock. & R.). Cockburn & Rowe's
Election Cases.
Locke. Cocke's Reports, vols. 16-18 Alabama ;-
Cocke's Reports, vols. 14,15 Florida.
Cod. Codex Justinianus.
Cod.Jur.Civ. Codex Juris Civilis ;—Justinian's Code.
Cod.St. Codified Statutes.
Cod.Theodos. Codex Theodorianus.
Code. Criminal Code of Canada, 1892.
Code Civ.Pro. (or Proc.). Code of Civil Procedure.
Code Civil. Code Civil or Civil Code of France.
Code Cr.Pro. (or Proc.). Code of Criminal Procedure.
Code d'Instr.Crim. Code d'Instruction Criminelle.
Code de Com. Code de Commerce.
Code Gen.Laws. Code of General Laws.
Code La. Civil Code of Louisiana.
Code N. (or Nap.). Code Napohion, French Civil Code.
Code Prac. Code of Practice.
Code Pro. Code of Procedure.
Code Pub.Gen.Laws. Code of Public General Laws.
Code Pub.Loc.Laws. Code of Public Local Laws.
Code R.N.S. Code Reports, New Series.
Code Rep. New York Code Reporter.
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CODE REP.N.S.
Code Rep.N.S. New York Code Reports, New Series.
Code Supp. Supplement to the Code.
Cof. (or Coff.Prob., or Coffey Prob.Dec.). Coffey's
Probate, Cal.
Cof.Dig. Cofer's Digest, Kentucky.
Coffey Prov.Dec. Coffey's Probate Decisions.
Cogh.Epit. Coghlan's Epitome of Hindu Law Cases.
Cohen, Adm.Law. Cohen's Admiralty Jurisdiction,
Law, and Practice.
Coke. Coke's English King's Bench Reports (cited by
parts and not by volume).
Coke Inst. Coke's Institutes.
Coke Lit. Coke on Littleton.
Col. Colorado ;—Colorado Reports ;—Coldwell's Re-
ports, Tennessee ;—Coleman's Reports, vols. 99,
101, 106, 110-129 Alabama.
Coi.App. Colorado Appeals.
Gol.C.C. Collyer's English Chancery Cases.
Col.Gas. Coleman's Cases (of Practice), New York.
Col.L.J. Colonial Law Journal (N.S.).
Col.L.Rep. Colorado Law Reporter.
Col.Law Review. Columbia Law Review.
Col. & Cai.Cas. (or Coleco. & C.Cas.). Coleman &
Caines' Cases, N.Y.
Cold. (or Coldw.). Coldwell's Tennessee Reports.
Cole. Cole's edition of Iowa Reports ;—Coleman's Re-
ports, vols. 99, 101-106, 110-129 Alabama.
Cole.Cas.Pr. Coleman's Cases, New York.
Colem.Cas. Coleman's Cases, N.Y.
Coll. Colles' Parliamentary Cases.
Call. (or C.C.). Collyer's English Chancery Cases.
Coil.P.C. (or Coli.Parl.Cas.). Colles' English Parlia-
mentary (House of Lords) Cases.
Coll. & E.Bank. Collier and Eaton's American Bank-
ruptcy Reports.
Colles. Colles' English Parliamentary Cases.
Colly. Collyer's English Vice Chancellors' Reports.
Colly.Partn. Collyer on Partnerships.
Colo. Colorado Reports.
Coio.App. Colorado Appeals Reports.
Colo.Law Rep. Colorado Law Reporter.
Golq. Colquit's Reports (1 Modern).
Colq.Rom.Givil Law. Colquhoun's Roman Civil Law.
Colt. (Reg.Ca.). Coltman's Registration Cases.
Goltm. Coltman, Eng.
Go I u m.J u r. Columbia Jurist, New York.
Golum.L.Rev. Columbia Law Review.
Coium.L.T. Columbia Law Times, New York.
Go I v i I. Colvil's Manuscript Decisions, Scotch Court of
Session.
Corn. Comyn's Reports, English King's Bench ;-
Comberbach's English King's Bench Reports ;-
Comstock's Reports, vols. 1-4 New York Court of
Appeals.
Com.B. Common Bench Reports (Manning, Granger,
and Scott).
Com.B.N.S. English Common Bench Reports, New
Series.
Com.Cas. Commercial Cases, England.
,Com.Dig. Comyns' Digest.
Com.Jour. Journals of the House of Commons.
Com.L. Commercial Law, Can.
Gorn.L.J. Commercial Law Journal.
Com.L.R. (or Com.Law R.). English Common Law Re-
ports.
Com.Law Rep. English Common Law Reports ;—
Common Law Reports, published by Spottiswoode.
Corn. on Con. Comyn's Law of Contracts.
Com.PI. Common Pleas, English Law Reports.
Com.PI.Div. (or P.Div. or PI.Div.). Common Pleas Di-
vision, English Law Reports.
Comb. Comberbach's English King's Bench Reports.
Comm. Commentaries.
Corn p.Dec. Comptroller's Decisions.
Corn p.Laws. Compiled Laws.
Comp.St. (or Comp.Stat.). Compiled Statutes.
Corn ptr.Treas.Dec. Comptroller Treasury Decisions.
Comst. (or Corns.). Comstock's Reports, vols. 1-4 New
York Court of Appeals.
Comyn, Usury. Comyn on Usury.
Comyns. Comyns' English King's Bench Reports.
Comyns' Dig. Comyns' Digest, English.
Con. Conover's Reports, Wisconsin ;—Continuation of
Rolle's Reports (2 Rolle) ;—Connoly, New York
Criminal.
Con.Cus. Conroy's Custodian Reports.
Con.St. Consolidated Statutes.
Con.Sur. Connoly's Surrogate, N.Y.
Con. & Law. Connor & Lawson's Irish Chancery Re-
ports.
Cond.Ch.R. (or Cond.Eng.Ch.). Condensed English
Chancery Reports.
Cond.Eccl. (or Cond.Ecc.R.). Condensed Ecclesiastical
Reports.
Cond.Ex.R. (or Cond.Exch.R.). Condensed Exchequer
Reports.
Cond.Rep.U.S. Peters' Condensed United States Re-
ports.
Conf. Conference Reports (by Cameron and Norwood),
North Carolina.
Conf.R. Conference Reports, N.C.
Con g. Congress.
Cong.EI.Cas. (or Elect.Cas.). Congressional Election
Cases.
Cong.Rec. Congressional Record, Washington.
Con k.Ad m. Conkling's Admiralty.
Go n n. Connecticut ;—Connecticut Reports ;—Connoly,
New York, Surrogate.
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Conn.B.J. Connecticut Bar Journal.
Conover. Conover's Reports, vols. 16-106 Wisconsin.
Conr. (or Conroy). Conroy's Custodian Reports.
Consist. (or Consist.Rep.). English Consistorial Re-
ports, by Haggard.
Consolid.Ord. Consolidated General Orders in Chan-
cery.
Const. Constitutional Reports, South Carolina, by
Mill ;—Constitutional Reports, South Carolina, by
Treadway ;—Constitutional Reports, vol. 1 South
Carolina, by Harper.
Const.Amend. Amendment to Constitution.
Const.Hist. Hallam's Constitutional History of Eng-
land.
Const.N.S. Constitutional Reports (Mill), South Caro-
lina, New Series.
Const.Oth. Constitutiones Othoni (found at the end
of Lyndewood's Provinciale).
Const.Rep. Constitutional Reports, S.C.
Con st.Rev. Constitutional Review.
Const.S.C. Constitutional Reports, South Carolina,
printed by Treadway.
Const.S.C.N.S. South Carolina Constitutional Reports,
New Series, printed by Mill.
Const.U.S. Constitution of the United States.
Const.U.S.Amend. Amendment to the Constitution of
the United States.
Cont.Elect.Case. Contested Election Cases (U.S.).
Coo. & Al. Cooke & Alcock's Irish King's Bench Re-
ports.
Cook, Corp. Cook on Corporations.
Cook, Stock, Stockh. & Corp.Law. Cook on Stock,
Stockholders, and General Corporation Law.
Cook Vice-Adm. (or Cook V. Adm.). Cook's Vice-Ad-
miralty, L.C. ;—Cook's Vice-Admiralty Reports,
Nova Scotia.
Cook's Pen.Code. Cook's Penal Code, N.Y.
Cooke. Cooke's Cases of Practice, English Common
Pleas ;—Cooke's Reports, Tennessee.
Cooke, I ncl.Acts. Cooke's Inclosure Acts.
Cooke, I ns. Cooke on Life Insurance.
Cooke Pr.Cas. Cooke's Practice Reports, English
Common Pleas.
Cooke Pr.Reg. Cooke's Practical Register of the Com-
mon Pleas.
Cooke & A. (or Al., AIc.). Cooke & Alcock's Reports,
Irish.
Cooley. Cooley's Reports, vols. 5-12 Michigan.
Cooley, BI.Comm. Cooley's Edition
Commentaries.
of Blackstone's
Cooley, Const.Law. Cooley's Constitutional Law.
Cooley, Const.Lim. Cooley on Constitutional Limita
tions.
Cooley, Tax'n (or Cooley, Tax.). Cooley on Taxation.
Cooley, Torts. Cooley on Torts.
CONT. DIG.
Coop. Cooper's Tennessee Chancery Reports ;—Coop-
er's Reports, vols. 21-24 Florida ;—Cooper's Eng-
lish Chancery Reports tempore Eldon ;—Cooper's
English Chancery Reports tempore Cottenham ;-
Cooper's English Chancery Reports tempore
Brougham ;—Cooper's English Practice Cases,
Chancery.
Coop.C.C. (or Cas.). Cooper's Chancery Cases tempore
Cottenham.
Coop.C. & P.R. Cooper's Chancery and Practice Re-
porter, Upper Canada.
Coop.Ch. Cooper's Tennessee Chancery Reports.
Co-op.Dig. Co-operative Digest, United States Re-
ports.
Coop.Eq.PI. Cooper's Equity Pleading.
Coop.Pr.Cas. Cooper's Practice Cases, English Chan-
cery.
Coop.Sel.Cas. Cooper's Select Cases tempore Eldon,
English Chancery.
Coo p.t.Br. (or Coop.t.Brough.). Cooper's Cases tempore
Brougham.
Coop.t.Cott. (or Coop.t.Cotten.). Cooper's Cases tempore
Cottenham, English Chancery.
Coop.t.Eld. Cooper's Cases tempore Eldon, English
Chancery.
Coop.Tenn.Ch. Cooper's Tennessee Chancery Reports.
Cooper. Cooper's English Chancery.
Coote, Ecc.Pr. Coote's Ecclesiastical Practice.
Coote, Mortg. Coote on Mortgages.
Coote, Prob.Pr. Coote's Probate Practice.
Cope. Cope's Reports, vols. 63-72 California.
Copp L.L. Copp's Public Land Laws.
Copp Land. Copp's Land Office Decisions.
Copp Min.Dec. Copp's United States Mining Deci-
sions.
Copp, Pub.Land Laws. Copp's United States Public
Land Laws.
Gor. Coram ;—Coryton's Bengal Reports.
Corb. & D. (or Corb. & Dan.). Corbett & Daniell's
English Election Cases.
Corn.Deeds. Cornish on Purchase Deeds.
Cornell L.G. Cornell Law Quarterly.
Cornish, Purch.Deeds. Cornish on Purchase Deeds.
Corp. Pennsylvania Corporation Reporter.
Corp.Jur.Can. Corpus Juris Canonici.
Corp.Jur.Civ. Corpus Juris Civilis.
Corp.Reorg. Corporate Reorganizations.
Cory. Coryton's Reports, Calcutta.
Cou. Couper's Justiciary Reports, Scotland.
Coup. (or Coup.Just. or Couper). Couper's Justiciary
Reports, Scotland.
Court Sess.Ca. Court of Sessions Cases, Scotch.
Court. & Macl. Courtnay & Maclean's Scotch Appeals
(6 and 7 Wilson and Shaw).
Cont.Dig. Coutl6e's Digest, Canada Supreme Court.
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COW.
Cow. Cowen's New York Reports ;—Cowper's Englisr
King's Bench Reports.
Cow.Cr.DIg. Cowen's Criminal Digest.
Cow.Cr.R. (or Cow.Cr.Rep.). Cowen's Criminal Re-
ports, N.Y.
Cow.DIc. (or Diet.). Cowell's Law Dictionary.
Cow.Dig. Cowell's East India Digest.
Cow. I nt. Cowell's Interpreter.
Cow.N.Y. Cowen's New York Reports.
Cowell. Cowell's Law Dictionary ;—Cowell's Inter-
preter.
Cow p. Cowper's English King's Bench Reports.
Cow p.Cas. Cowper's Cases (in the third volume of
Reports in Chancery)..
Cox. Cox's English Chancery Reports ;—Cox's Eng-
lish Criminal Cases ;—Cox's Reports, vols. 25-27
Arkansas.
Cox Am.T.M.Cas. (or Am.Tr.M.Cas.). Cox's American
Trade-Mark Cases.
Cox C.C. Cox's English Criminal Cases ;—Cox's
Crown Cases ;—Cox's County Court Cases.
Cox Ch. Cox's English Chancery Cases.
Cox Cr.Cas. Cox's English Criminal Cases.
Cox Cr.Dig. Cox's Criminal Law Digest.
Cox, I nst. Cox's Institutions of the English Govern-
ment.
Cox J.S.Cas. Cox's Joint Stock Cases.
Cox, M. & H. (or Mc. & H. or McC. & H.). Cox, McCrae
& Hertslet's English County Court Reports.
Cox Mag.Ca. Cox's Magistrate Cases.
Cox Man.Tr.M. Cox's Manual of Trade-Mark Cases.
Cox Tr.M. Cox's Manual of Trade-Mark Cases.
Cox.Tr.M.Cas. Cox's American Trade-Mark Cases.
Cox & Atk. Cox & Atkinson, English Registration Ap-
peal Reports.
Coxe. Coxe's Reports, New Jersey.
Cr. Cranch's Reports, United States Supreme Court ;
—Cranch's United States Circuit Court Reports.
Cr.Act. Criminal Act.
Cr.App. Criminal Appeals, Eng.
Cr.C.C. (or Cra. or Cra.C.C.). Cranch's United States
Circuit Court Cases (Reports).
Cr.Cas.Res. Crown Cases Reserved.
Cr.Cir.Comp. Crown Circuit Companion, Irish.
Cr.Code. Criminal Code.
Cr.Code Prac. Criminal Code of Practice.
Cr.Law Mag. Criminal Law Magazine, N.J.
Cr.Law Rec. Criminal Law Recorder.
Cr.Law Rep. Criminal Law Reporter.
Cr.M. & R. Crompton, Meeson & Roscoe's English Ex-
chequer Reports.
Cr.Pat.Dec. Cranch's Decisions on Patent Appeals.
Cr.Prac.Act. Criminal Practice Act.
Cr.Proc.Act. Criminal Procedure Act.
Cr.S. & P. Craigie, Stewart & Paton's Scotch Appeal
Cases (same as Paton).
Cr.St. Criminal Statutes.
Cr. & Dix. Crawford & Dix's Irish Circuit Court
Cases.
Cr. & Dix Ab.Cas. Crawford & Dix's (Irish) Abridged
Notes of Cases.
Cr. & Dix C.C. Crawford & Dix's Irish Circuit Court
Cases.
Cr. & J. Crompton & Jervis.
Cr. & M. Crompton & Meeson's English Exchequer Re-
ports.
Cr. & Ph. Craig & Phillips' English Chancery Re-
ports.
Crab. Crabbe's United States District Court Reports.
Crabb, Com.Law. Crabb on the Common Law.
Crabb, Eng. Crabb's English Synonyms.
Crabb, Eng.Law. Crabb's History of the English Law.
Crabb, Hist.Eng.Law. Crabb's History of the English
Law.
Crabb, Real Prop. Crabb on the Law of Real Prop-
erty.
Crabb, Technol.Dict. Crabb's Technological Diction-
ary.
Crabbe (or Crab.). Crabbe's United States District
Court Reports.
Craig, Diet. Craig's Etymological, Technological, and
Pronouncing Dictionary.
Craig & P. Craig and Phillips' English Chancery Re-
ports.
Craig & Ph. Craig and Phillips' English Chancery
Reports.
Craig. & St. (or S. & P.). Craigie, Stewart & Paton's
Scotch Appeals Cases (same as Paton).
Craigius, Jus Feud. Craigius Jus Feudale.
Crack C.C. Craik's English Causes CAM:ores.
Cranch. Cranch's United States Supreme Court Re-
ports.
Cranch C.C. (or D.C.). Cranch's U. S. Circuit Court
Reports, District of Columbia.
Cranch Pat.Dec. Cranch's Patent Decisions.
Crane. Crane's Reports, vol. 22 Montana.
Craw. Crawford's Reports, vols. 53-67 Arkansas.
Craw. & D. (or Crawf. & D.). Crawford & Dix's Cir-
cuit Court Cases, Ireland.
Craw. & D.Ab.Cas. (or Crawf. & D.Abr.Cas. or Craw.
& D.Abr.C.). Crawford & Dix's Abridged Cases,
Ireland.
Creasy. Creasy's Ceylon Reports.
Cress.I ns.Cas. (or Cressw.I ns.Cas.). Cresswell's Eng-
lish Insolvency Cases.
Crim.L.Mag. Criminal Law Magazine, Jersey City,
New Jersey.
CrIm.L.Rep. Criminal Law Reporter.
Crim.Rec. Criminal Recorder, Philadelphia ;—Crirni-
nal Recorder, London ;—Criminal Recorder, vol. 1
Wheeler's New York Criminal Reports.
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D.C.C.E.
Cripp's Ch.Cas. (or Cripp Ch.Cas.). Cripp's Church
and Clergy Cases.
Critch. Critchfield's Reports, vols. 5-21 Ohio State.
Cro. Croke's English King's Bench Reports ;—Keil-
way's English King's Bench Reports.
Cro.Cas. (or Cro.Car.). Croke's English King's Bench
Reports tempore Charles I, 3 Cro.
Cro.E I iz. Croke's English King's Bench Reports
tempore Elizabeth (1 Cro.).
Cro.Jac. Croke's English King's Bench Reports
tempore James (Jacobus) I. (2 Cro.).
Crockford. English Maritime Law Reports, published
by Crockford.
Cromp. Star Chamber Cases, by Crompton.
Cro m p.Exch.R. Crompton's Exchequer Reports, Eng-
lish.
Crom p.J u r. Crompton's Jurisdiction of Courts.
Cromp.Just. Crompton's Office of Justice of the
Peace.
Crom p.M. & R. Crompton, Meeson and Roscoe's Eng-
lish Exchequer Reports.
Crom p.R. & C.Pr. Crompton's Rules and Cases of
Practice.
Cromp. & J. (or Cromp. & Jerv.). Crompton & Jervis'
English Exchequer Reports.
Cromp. & M. (or Mees.). Crompton & Meeson's Eng-
lish Exchequer Reports.
Crompt. Star Chamber Cases by Crompton.
Grosw.Pat.Cas. (or Grosw.Pat.Ca.). Croswell's Col-
lection of Patent Cases, U. S.
Crounse. Crounse's Reports, vol. 3 Nebraska.
Crowth. (or Crowther). Crowther's Ceylon Reports.
Cruise Dig. Cruise's Digest of the Law of Real Prop-
erty.
Crump Ins. Crump on Marine Insurance.
Crum rine. Crumrine's Reports, vols. 116-146 Penn-
sylvania.
Ct.App.N.Z. (or Rep.N.Z.). Court of Appeals Reports,
New Zealand.
Ct.CI. Court of Claims, United States.
Ct.Cust. & Pat.App. Court of Customs and Patent
Appeals.
Cujacius. Cujacius, Opera, qum de Jure fecit, etc.
Cum. & Dun.Rem.Tr. Cummins & Dunphy's Remark-
able Trials.
Cummins. Cummins' Idaho Reports.
Gun. (or Cunn.). Cunningham's English King's Bench
Reports.
Cu n.Dict. Cunningham's Dictionary.
Cu nn. Cunningham's English Bench Reports.
Cunningham. Cunningham's Reports, English King's
Bench.
Cur. Curtis' United States Circuit Court Reports ;—
Curia.
Cur.Com. Current Comment and Legal Miscellany.
Cur.Dec. Curtis' Decisions, United States Supreme
Court.
Cur.Ov.Ca. Curwen's Overruled Cases, Ohio.
Current Gt.Dec. Current Court Decisions.
Curry. Curry's Reports, vols. 6-19 Louisiana.
Curt. Curtis' United States Circuit Court Reports ;-
Curteis' English Ecclesiastical Reports.
Curt.Adm.Dig. Curtis' Admiralty Digest.
Curt.C.C. Curtis' United States Circuit Court Deci-
sions.
Curt.Cond. Curtis' (Condensed) Decisions, United
States Supreme Court.
Curt.Dec. Curtis' United States Supreme Court De-
cisions.
Curt.Dig. Curtis' Digest, United States.
Curt.Ecc. Curteis' English Ecclesiastical Reports.
Curt.Pat. Curtis on Patents.
Curtis. Curtis' United States Circuit Court Reports.
Curw. Curwen's Overruled Cases ;—Curwen's Stat-
utes of Ohio.
Curw.L.O. Curwen's Laws of Ohio 1854, 1 vol.
Gurw.R.S. Curwen's Revised Statutes of Ohio.
Cush. Cushing's Massachusetts Reports ;—Cushman's
Mississippi Reports.
Gush.Elec.Cas. Cushing's Election Cases in Massa-
chusetts.
Cush.Law & Prac.Leg.Assem. Cushing's Law and
Practice of Legislative Assemblies.
Cush.Man. Cushing's Manual.
Gushing. Cushing's Massachusetts Reports.
Cushm. (or Cushman). Cushman's Reports, vols. 23-
29 Mississippi.
Cust.A. United States Customs Appeals.
Cust.Rep. Custer's Ecclesiastical Reports.
Cyc. Cyclopedia of Law and Procedure.
Cyc.Ann. Cyclopedia of Law & Procedure Annota-
tions.
Cyc.Law & Proc. Cyclopedia of Law and Procedure.
Cyclop.Dict. Shumaker & Longsdorf's Cyclopedic Dic-
tionary.
D. Delaware ;—Dallas' United States and Pennsyl-
vania Reports ;—Denio's Reports, New York ;-
Dunlop, Bell & Murray's Reports, Scotch Session
Cases (Second Series) ;—Digest of Justinian, 50
books, never been translated into English ;—Dis-
ney, Ohio ;—Divisional Court ;—Dowling, English ;
—Dominion of Canada.
D.(N.S.). Dowling's Practice Cases, New Series, Eng-
lish.
D.B. Domesday Book.
D.B. & M. Dunlop, Bell & Murray, Scotland.
D.C. District of Columbia ;—United States District
Court.
D.C.App. District of Columbia Appeals.
D.C.C.E. District of Columbia Code Encyclopodia.
1819

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D.CHIP.
D.Chlp. D. Chipman's Reports, Vermont.
D.G. De Gex ;—De Gex's English Bankruptcy Re-
ports.
D.G.F. & J. De Gex, Fisher, & Jones' English Chan-
cery Reports.
D.G.F. & J.B. De Gex, Fisher, & Jones' English Bank-
ruptcy Reports.
D.G.J. & S. De Gex, Jones, & Smith's English Chan-
cery Reports.
D.G.J. & S.B. De Gex, Jones, & Smith's English Bank-
ruptcy Reports.
D.G.M. & G. De Gex, Macnaghten, & Gordon's English
Chancery Reports.
D.G.M. & G.B. De Gex, Macnaghten, & Gordon's Eng-
lish Bankruptcy Reports.
D.N.S. Dowling's Reports, New Series, English Bail
Court ;—Dow, New Series (Dow & Clark, English
House of Lords Cases).
D.P.C. Dowling's English Practice Cases.
D.W.I. Descriptive-Word Index.
D. & B. (or D. Dearsly & Bell's English
Crown Cases.
D. & C. Dow & Clark's English House of Lords (Par-
liamentary) Cases ;—District and County Reports.
D. & C. (or D. & Ch. or D. & Chit.). Deacon & Chitty's
English Bankruptcy Reports.
D. & E. Durnford & East's (Term) Reports, English
King's Bench.
D. & J. De Gex & Jones' English Chancery Reports.
D. & J.B. De Gex & Jones' English Bankruptcy Re-
ports.
D. & L. Dowling & Lowndes' English Bail Court Re-
ports.
D. & M. Davison & Merivale's English Queen's Bench
Reports.
D. & P. Denison & Pearce, English.
D. & R. Dowling & Ryland's English King's Bench
Reports.
D. & R.M.C. (or D. & R.Mag.Cas.). Dowling & Ry-
land's Magistrate Cases, Eng.
D. & R.N.P. (or D. & R.N.P.C.). Dowling & Ryland's
English Nisi Prius Cases.
D. & S. Drewry & Smale's Chancery Reports ;—Doc-
tor and Student ;—Deane and Swabey.
D. & Sw. Deane & Swabey, Eng.
D. & W. Drury & Walsh's Irish Chancery Reports ;—
Drury & Warren's Irish Chancery Reports.
D. & War. Drury & Warren's Reports, Irish Chancery.
Daily L.N. Daily Legal News, Pa.
Daily L.R. Daily Legal Record, Pa.
Daily Transc. Daily Transcript.
Dak. Dakota ;—Dakota Territory Reports.
Dak.Law Rev. Dakota Law Review.
Dal. Dallas' United States Reports ;—Dalison's Eng-
lish Common Pleas Reports (bound with Benloe);
—Dalrymple's Scotch Session Cases.
Dal.C.P. Dalison's Common Pleas, Eng.
Dal.Coop. Dallas' Report of Cooper's Opinion on the
Sentence of a Foreign Court of Admiralty.
Dale. Dale's Reports, vols. 2-3 Oklahoma.
Dale Ecci. (or Dale Ecc.). Dale's Ecclesiastical Re-
ports, Eng.
Dale Leg.Rit. Dale's Legal Ritual (Ecclesiastical)
Reports.
Dallson. Dalison's English Common Pleas Reports
(bound with Benloe).
Dall. Dallam's Decisions, Tex ;—Dallas' Pennsylvania
and United States Reports.
Dali.Dec. (or Dal I.Dig.). Dallam's Texas Decisions,
printed originally in Dallam's Digest.
Dall. In Kell. Dallison in Keilway's Reports, English
King's Bench.
Dall.Laws. Dallas' Laws, Pa.
Daii.S.C. Dallas' United States Supreme Court Re-
ports.
Dallas. Dallas' Pennsylvania and United States Re-
ports.
Daiioz. Dictionnaire general et raisonnd de legisla-
tion, de doctrine, et de jurisprudence, en matière
civile, commerciale, criminelle, administrative, et
de droit public.
Dalr. Dalrymple's Decisions, Scotch Court of Ses-
sion ;—(Dalrymple of) Stair's Decisions, Scotch
Court of Session ;—(Dalrymple of) Hailes' Scotch
Session Cases.
Dalr.Dec. Dalrymple's Decisions, Scotland.
Dalr.Feud.Prop. Dalrymple on Feudal Property.
Dalrymple. (Sir Hew) Dalrymple's Scotch Session
Cases; (Sir David Dalrymple of) Hailes' Scotch
Session Cases ;—(Sir James Dalrymple of) Stair's
Scotch Session Cases. See, also, Dal. and Dalr.
Daly. Daly's New York Common Pleas Reports.
Dampier MSS. Dampier's Paper Book, Lincoln's Inn
Library.
Dan. Daniell's Exchequer and Equity Reports ;—
Dana's Kentucky Reports ;—Danner's Reports,
vol. 42 Alabama.
Dan. & LI. Danson & Lloyd's Mercantile Cases.
Dana. Dana's Kentucky Reports.
Dane Abr. Dane's Abridgment.
Daniel, Neg.l nst. Daniel's Negotiable Instruments.
Daniell, Ch.M. & Prac. Daniell's Chancery Pleading
and Practice.
Daniell, Ch.Prac. (or Daniell, Ch.Pr.). Daniell's Chan-
cery Pleading and Practice.
Dann. Dann's Arizona Reports ;—Danner's Reports,
vol. 42 Alabama ;—Dann's California Reports.
Dans. & L. (or Dans. & Lid.). Danson & Lloyd's Eng-
lish Mercantile Cases.
D'Anv.Abr. D'Anver's Abridgment, Eng.
Darl.Pr.Ct.Sess. Darling, Practice of the Court of
Session (Scotch).
Dart, Vend. Dart on Vendors and Purchasers.
1820

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DEL.CO.
Das. Dasent's Bankruptcy and Insolvency Reports ;—
Common Law Reports, vol. 3.
D ass. D i g. Dassler's Kansas Digest.
Dass.Ed. Dassler's Edition, Kansas Reports.
Da u ph.Co. Dauphin County, Pa.
Dauph.Co.Rep. (or Dauph.). Dauphin County Re-
porter, Pennsylvania.
Day . Daveis' United States District Court Reports
(now republished as 2 Ware) ;—Davy's or Davies'
Irish King's Bench and Exchequer Reports ;-
Davies' English Patent Cases ;—Davis' Reports
(Abridgment of Sir Edward Coke's Reports) ;-
Davis' Reports, vol. 2 Hawaii ;—Davis' United
States Supreme Court Reports.
Day .Goke. Davis' Abridgment of Coke's Reports.
D ay .Co n v. Davidson's Conveyancing.
Day .Dig. Davis' Indiana Digest.
Day .l r. Davies' Irish Reports.
Day .lr.K.B. Davies' Reports, Irish King's Bench.
Day .Pat.Cas. Davies' English Patent Cases.
Day .Prec.Conv. Davidson's Precedents in Conveyanc-
ing.
Day .Rep. Davies' (Sir John) Reports, King's Bench,
Ireland.
Day . & M. (or Day . & Mer.). Davison & Merivale, Eng.
Daveis. Daveis' United States District Court Reports
(republished as 2 Ware).
Davidson. Davidson's Reports, vols. 92-111 North
Carolina.
Davies. Davies' (or Davis' or Davys') Irish King's
Bench Reports.
Davis. Davis' Hawaiian Reports ;—Davies' (or Da-
vys') Irish King's Bench Reports ;—Davis' Re-
ports, vols. 108-176 United States Supreme Court.
Davis (J.C.B.). Davis' United States Supreme Court
Reports.
Davis, Bidg.Soc. Davis' Law of Building Societies.
Davis, Cr.Law. Davis Criminal Law.
Davys. Davys, Ireland.
Dawson's Code. Dawson's Code of Civil Procedure,
Colo.
Day. Day's Connecticut Reports ;—Connecticut Re-
ports, proper, reported by Day.
Dayt.Term Rep. Dayton Term Reports, Dayton, Ohio.
Dayton. Dayton Ohio Reports.
Dea. Deady's United States District Court Reports.
Dea. & Chit. Deacon & Chitty's English Bankruptcy
Reports.
Dea. & Sw. Deane & Swabey's Reports, Probate and
Divorce.
Deac. Deacon's English Bankruptcy Reports.
Deac.Cr.Law. Deacon on Criminal Law of England.
Deac. & C. Deacon & Chitty's English Bankruptcy
Reports.
Deady. Deady's United States Circuit Reports.
Deane. Deane (& Swabey's) English Probate and Di-
vorce Reports ;—Deane's Reports vols. 24-26 Ver-
mont.
Deane Ecc.Rep. Deane & Swabey's English Ecclesias-
tical Reports.
Deane & Sw. Deane & Swabey's English Ecclesiasti-
cal Reports.
Dears.C.C. Dearsly's English Crown Cases.
Dears. & B. Dearsley & Bell, Eng.
Dears. & B.C.C. (or Dears. & B.Crown Cas.). Dearsley
and Bell's English Crown Cases.
Deas & A. Deas & Anderson, Eng.
Deas & And. Deas & Anderson's Reports, Scotch
Court of Session.
Dec.Com.Pat. Decisions of the Commissioner of Pat-
ents.
Dec.Dig. American Digest, Decennial Edition.
Dec.O. Ohio Decisions.
Dec.t.H. & M. Decisions of Admiralty tempore Hay
and Marriott.
Dec.U.S.Comp.Gen. Decisions of U.S. Comptroller
General.
Decen.Dig. American Digest, Decennial Edition.
De G.F. & J. De Gex, Fisher, & Jones' English Chan-
cery Reports.
De G.F. & J.By. De Gex, Fisher, & Jones' English
Bankruptcy Appeals.
De G.J. & S. De Gex, Jones, & Smith's English Chan-
cery Reports.
De G.J. & S.By. De Gex, Jones, & Smith's English
Bankruptcy Appeals.
De G.M. & G. De Gex, Macnaghten, & Gordon's Eng-
lish Bankruptcy Reports ;—De Gex, Macnaghten,
& Gordon's English Chancery Reports.
De G.M. & G.By. De Gex, Macnaghten, & Gordon's
English Bankruptcy Appeals.
De G. & J. De Gex & Jones' English Chancery Re-
ports.
De G. & J.By. De Gex & Jones' English Bankruptcy
Appeals.
De G. & Sm. De Gex & Smale's English Chancery
Reports.
De Gex. De Gex's English Bankruptcy Reports.
De Gex, F. & J. De Gex, Fisher & Jones' English Chan-
cery Reports.
De Gex, J & S. De Gex, Jones, and Smith's English
Chancery Reports.
De Gex, M. & G. De Gex, Macnaghten & Gordon's
Reports, English.
De Hart, MILLaw. De Hart on Military Law.
De Jure Mar. Malloy's De Jure Maritimo.
Del. Delaware ;—Delaware Reports ;—Delane's Eng-
lish Revision Cases ;—Delaware County Reports,
Pennsylvania.
Del.C.Ann. 1 .)01:1ware ('ode .klinotated.
Del.Ch. Delaware Chancery Reports, by Bates.
Del.Co. (or Del.Co.R.). Delaware County Reports, Pa.
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DEL.CR.CAS.
Del.Cr.Cas, Delaware Criminal Cases, by Houston.
Del.EI.Cas. Delane's English Election (Revision)
Cases.
DeLTerm R. Delaware Term Reports.
Deiehanty. Miscellaneous Reports, New York.
De Lolme, Eng.Const. De Lolme on the English Con-
stitution.
Dem.Sur. (or Dem.Surr.). Demarest's Surrogate, N.
Y.
Demo!. Demolombe's Code Napoleon.
Den. Denio's New York Reports ;—Denis' Reports,
vol. 32 Louisiana Annual ;—Denied.
Den.C.C. Denison's English Crown Cases.
Den. & P. Denison & Pearce's English Crown Cases,
vol. 2 Denison.
Denio. Denio's New York Reports.
Denis. Denis' Reports, vols. 32-40 Louisiana.
Denison, Cr.Cas. Denison's English Crown Cases.
Dens. Denslow's Notes to second edition, vols. 1-3
Michigan Reports.
Denver L.J. Denver Law Journal.
Denver L.N. Denver Legal News.
De Orat. Cicero, De Oratore.
Des. Desaussure's South Carolina Equity Reports.
Desaus. (or Desaus.Eq.). Desaussure's Equity, S.C.
Dest.Cal.Dig. Desty's California Digest.
Desty, Tax'n. Desty on Taxation.
Detroit L.Rev. Detroit Law Review.
Detroit Leg.N. Detroit Legal News, Mich.
Dev. Devereux's North Carolina Law Reports ;—Dev-
ereux's Reports, United States Court of Claims.
Dev.C.C. Devereux's Reports, United States Court of
Claims.
Dev.Ct.CI. Devereux's Reports, United States Court
of Claims.
Dev.Eq. Devereux's North Carolina Equity.
Dev.L. Devereux's North Carolina Law Reports.
Dev. & B. (or Dev. & Bat.). Devereux & Battle, N.C.
Dev. & B.Eq. (or Dev. & Bat.Eq.). Devereux & Battle's
Equity, N.C.
DevI.Deeds. Devlin on Deeds.
Dew. Dewey's Reports, vols. 60-61 Kansas ;—Dewey's
Kansas Court of Appeals Reports.
De Witt. De Witt's Reports, vols. 24-42 Ohio State.
Di. (or Dy.) . Dyer's English Reports, King's Bench,
Dice. Dice's Reports, vols. 79-91 Indiana.
Dicey, Confl.Laws. Dicey on Conflict of Laws.
Dicey, Dom. Dicey's Law of Domicil.
Dicey, Const. Dicey, Lectures Introductory to the
Study of the Law of the English Constitution.
Dick. Dickens, Scotland ;—Dickinson, N.J. ;—Dick-
ens' English Chancery Reports ;—Dickinson's Re-
ports, vols. 46-58 New Jersey Equity.
Dict. Dictionary,
Dict.Droit Civil. Dictionnaire Droit Civil.
Dicta. Dicta, Denver Bar Association.
Dig. Digest ;—Digest of Justinian ;—Digest of Writs.
Dig.Fla. Thompson's Digest of Laws, Fla.
Dig.Proem. Digest of Justinian, Proem.
Dig.St. English's Digest of the Statutes, Ark.
Dill. (or Dil.). Dillon's United States Circuit Court
Reports.
Dill.Laws Eng. & Am. Dillon's Laws and Jurispru-
dence of England and America.
Dill.Mun.Corp. Dillon on Municipal Corporations.
Dirl. Dirleton's Decisions, Court of Session.
Dirl.Dec. Dirleton's Decisions, Scotland.
Disn. (or Dis.). Disney's Superior Court Reports, Cin-
cinnati.
Dist. (or Dist.Rep.). District Reports.
Docket. The Docket, Pa.
Doct. & Stud. Doctor and Student.
Dod. (or Dods.). Dodson's English Admiralty Reports.
Dod.Adm. Dodson's Reports, English Admiralty
Courts.
Dom.Book. Domesday Book.
Dom.'Civ.Law, Domat's Civil Law.
Dom.L.R. Dominion Law Reports, Canada.
Dom.Proc. Domus Procerum. In the House of Lords.
Domat. Domat on Civil Law.
Domat Supp. au Droit Public. Domat, Les Lois Ci-
viles, Le Droit Public, etc. Augment6e des 3e
et 4e livres du Droit Public, par M. de Hericourt,
etc.
Domes. Domesday Book.
Domesday. Domesday Book.
Donaker. Donaker's Reports, vol. 154 Indiana.
Donn. Donnelly's Reports, English Chancery ;—Don-
nelly's Irish Land Cases.
Donnelly. Donnelly, Eng.
Dor.Q.B. (or Dorion). Dorion's Quebec Queen's Bench
Reports ;—(Dec. de la Cour D'Appel).
Dorion. Dorion, Lower Canada.
Dos Passos, Stock-Brok. Dos Passos on Stock-Bro-
kers and Stock Exchanges.
Doug. Douglas' Michigan Reports ;—Douglas' Eng-
lish King's Bench Reports ;—Douglas' English
Election Cases.
Doug. (Mich.). Douglas' Law Reports, Michigan.
Doug.El.Ca. (or Dougl.EI.Cas.). Douglas' Election
Cases, Eng.
Dow (or Dow P.C.). Dow's House of Lords (Parlia-
mentary) Cases, same as Dow's Reports ;—Dow-
ling's English Practice Cases.
Dow N.S. Dow & Clark's English House of Lords
Cases.
Dow P.C. Dow's Parliamentary Cases ;—Dowling's
English Practice Cases.
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DY,
Dow & C. Dow & Clark's English Howe of Lords
Cases.
Dow. & L. Dowling & Lowndes' English Bail Court
Reports.
Dow. & Ry. Dowling & Ryland's English King's Bench
Reports ;—Dowling & Ryland's English Nisi Prius
Cases.
Dow. & Ry.M.C. Dowling & Ryland's English Magis-
trates' Cases.-,
Dow. & Ry.N.P. Dowling & Ryland's English Nisi
Prius Cases. (Often bound at end of vol. 1 Dow-
ling & Ryland's King's Bench Reports.)
Dowl. (or DowI.P.C.). Dowling's English Bail Court
(Practice) Cases.
Dowl.N.S. Dowling's English Bail Court Reports,
New Series.
Dowl.P.C. Dowling's English Bail Court (Practice)
Cases.
Dowl.P.C.N.S. Dowling's Practice Cases, New Series,
Eng.
Dow 1.Pr.C.N.S. Dowling's Reports, New Series, Eng-
lish Practice Cases.
Dowl. & L. Dowling & Lowndes' English Bail Court
Reports.
Dow!. & Low nd. Dowling & Lowndes' English Prac-
tice Cases.
Dow 1. & R. (or Dow 1. & Ryl.). Dowling & Ryland's
English King's Bench Reports.
DowI.& RyI.M.C. Dowling & Ryland's English Mag-
istrates' Cases.
Dowl. & RyI.N.P. Dowling & Ryland's English Nisi
Prius Cases.
Down. & Lud. Downton & Luder's English Election
Cases.
Dr. Drewry's English Vice Chancellor's Reports ;-
Drury's Irish Chancery Reports tempore Sugden ;
—Drury's Irish Chancery Reports tempore Na-
pier.
Dr.R.t.Nap. Drury's Irish Chancery Reports tempore
Napier.
Dr.R.t.Sug. Drury's Irish Chancery Reports tempore
Sugden.
Dr. & Sm. Drewry & Smale's English Vice Chancel-
lors' Reports.
Dr. & Wal. Drury & Walsh's Irish Chancery Reports.
Dr. & War. Drury & Warren's Irish Chancery Re-
ports.
Drake, Attachm. Drake on Attachments.
Draper. Draper's Upper Canada King's Bench Re-
ports, Ontario.
Drew. Drewry's English Vice Chancellors' Reports ;—
Drew's Reports, vol. 13 Florida.
Drew. & Sm. Drewry & Smale's English Vice Chan-
cellors' Reports.
Drink. Drinkwater's English Common Pleas Reports.
DrInkw. Drinkwater, Eng.
Drone, Copyr. Drone on Copyrights.
Dru. Drury's Irish Chancery Reports tempore Sug-
den.
Dru.t.Nap. Drury's Irish Chancery Reports tempore
Napier.
Dru. & Wal. Drury & Walsh's Irish Chancery Re-
ports.
Dru. & War. Drury & Warren's Irish Chancery Re-
ports.
Drury. Drury, Ireland.
Drury t.Sug. Drury's Irish Chancery Reports tempore
Sugden.
Dub. Dubitatur;—frabitante.
Dub.Rev. Dublin Review, Dublin, Ireland.
Du Cange. Du Cange's Glossarium.
Dud. (Ga.). Dudley's Georgia Reports.
Dud. (S.C.). Dudley's Law Reports, South Carolina.
Dud.Ch. (or Eq.). Dudley's South Carolina Equity Re-
ports.
Dud.Eq. (S.C.). Dudley's Equity Reports, South Caro-
lina.
Dud.L. (or Dud.Law or Dud.L.S.C.). Dudley's Law,
S.C.
Duer. Duer's New York Superior Court Reports.
Duer, Ins. Duer on Insurance.
Dufresne. Dufresne's [Law] Glossary.
Duke B.A.J. Duke Bar Association Journal.
Dun. Duncan (see Dune.);—Dunlap (see Dunl.).
Dun. & Cum. Dunphy & Cummins' Remarkable Trials.
Dunc.Ent.Cas. Duncan's Scotch Entail Cases.
Dunc.N.P. Duncombe's Nisi Prius.
Dungl.Med.Dict. Dunglison, Dictionary of Medical
Science and Literature.
Dunl.Abr. Dunlap's Abridgment of Coke's Reports.
Du n I.Ad m.Pr. Dunlop's Admiralty Practice.
Dunl.B. & M. Dunlop, Bell & Murray, Scotland.
Dunlop. Dunlop, Scotland.
Dunlop (Dunl.B. & M.). Dunlop, Bell & Murray's Re-
ports, Second Series, Scotch Session Cases.
Dunn. Dunning's English King's Bench Reports.
Dup.Jur. Duponceau on Jurisdiction of United States
Courts.
Durf. Durfee's Reports, vol. 12 Rhode Island.
Durie. Durie's Scottish Court of Session Cases.
Durn. & E. Durnford & East's English King's Bench
Reports (Term Reports).
Dutch. Dutcher's New Jersey Reports.
Du v. Duvall's Kentucky Reports ;—Duval's Reports,
Canada Supreme Court.
Duval. Duval's Reports, Canada Supreme Court.
Dwar.St. Dwarris on Statutes.
Dy. (or Dyer). Dyer's English King's Bench Reports.
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E.
E
E. East's Reports.
E.B. & E. Ellis, Blackburn & Ellis' English Queen's
Bench Reports.
E.B. & S. (Ellis) Best & Smith's English Queen's
Bench Reports.
E.C. English Cases ;—English Chancery ;—English
Chancery Reports ;—Election Cases, Ontario.
E.C.L. English Common Law Reports.
E.D.C. Eastern District Court, South Africa.
E.D.S. E. D. Smith's New York Common Pleas
Reports.
E.D.Smith (N.Y.). E. D. Smith's New York Common
Pleas Reports.
E.E. English Exchequer Reports.
E.E.R. English Ecclesiastical Reports.
E.L. & Eq. English Law and Equity Reports.
E.O. Executive Orders.
E.P.C. East's Pleas of the Crown.
E.R. East's King's Bench Reports ;—Election Re-
ports.
E.R.C. English Ruling Cases.
E. & A. Ecclesiastical and Admiralty ;—Error and
Appeal ;—Spink's Ecclesiastical and Admiralty
Reports ;—Upper Canada Error and Appeal Re-
ports.
E. & A.R. Error and Appeal Reports, Ontario.
E. & A.W.C. Grant's Error and Appeal Reports, On-
tario.
E. & B. Ellis & Blackburn's Queen's Bench Reports.
E. & E. Ellis & Ellis' English Queen's Bench Re-
ports.
E. & I. English and Irish Appeals, House of Lords.
E. & Y. Eagle & Younge's English Tithe Cases.
Ea. East's English King's Bench Reports.
Eag. & Y. (or Eag. & Yo.). Eagle & Young's Tithe
Cases, Eng.
East. East's King's Bench Reports ;—East's Notes of
Cases in Morley's Indian Digest ;—Eastern Re-
porter.
East.L.R. Eastern Law Reporter, Canada.
East N. of C. East's Notes of Cases (in Morley's
East Indian Digest).
East, P.C. (or PI.Cr.). East's Pleas of the Crown.
East.Rep. Eastern Reporter.
East.T. Eastern Term, Eng.
Ebersole. Ebersole's Reports, vols. 59-80 Iowa.
Eccl.R. English Ecclesiastical Reports.
Eecl.Stat. Ecclesiastical Statutes.
Eccl. & Ad. Ecclesiastical and Admiralty ;—Spink's,
Ecclesiastical and Admiralty Reports.
Ed. Edition ;—Eden's English Chancery Reports.
Ed.Bro. Edet ,' edition of Brown's English Chancery
Reports.
Ed.Cr. Edwards' New York Chancery Reports.
Ed. et Ord. Edits et Ordonnances (Lower Canada).
Eden. Eden's Reports, High Court of Chancery, Eng-
land.
Eden, Bankr. Eden's Bankrupt Law.
Eden, Pen.Law. Eden's Principles of Penal Law.
Eden's Prin.P.L. Eden's Principles of Penal Law.
Edg. Edgar's Reports, Court of Session. Scotland.
Edgar. Edgar, Scotland.
Edict. Edicts of Justinian.
Edinb.L.J. Edinburgh Law Journal.
Edm.Sel.Cas. Edmonds' New York Select Cases.
Edmonds' St. at Large. Edmonds' Statutes at Large,
N.Y.
Edw. Edwards' New York Chancery Reports ;—Ed-
wards' English Admiralty Reports ;—Edwards'
Reports, vols. 2, 3 Missouri.
Edw. (Tho.). Edwards' English Admiralty Reports.
Edw.Ahr. Edwards' Abridgment of Prerogative Court
Cases.
Edw.Adm. Edwards' English Admiralty Reports.
Edw.Bailm. Edwards on . the Law of Bailments.
Ed w.Bi I Is & N. Edwards on Bills and Notes.
Ed w.Brok. & F. Edwards on Factors and Brokers.
Ed w.Ch. Edwards' New York Chancery Reports.
Edw.Lead.Dec. Edwards' Leading Decisions in Ad-
miralty (Edwards' Admiralty Reports).
Edw.Pr.Cas. Edwards' Prize ( lases (English Admiral-
ty Reports).
Edw.Pr.Ct.Cas. Edwards' Abridgment of Prerogative
Court Cases.
Edw.Rec. Edwards on Receivers in Equity.
Efird. Efird's Reports, vols. 45-56 South Carolina.
El. Queen Elizabeth ;—Elchies' Decisions, Scotch
Court of Session.
EI.B. & E. Ellis, Blackburn, & Ellis' English Queen's
Bench Reports.
El., BI. & El. Ellis, Blackburn & Ellis' English
Queen's Bench Reports.
EI.Cas. Election Cases.
EI.Dict. Elchies' Dictionary of Decisions, Court of
Session, Scotland.
El. & B. (or BI). Ellis & Blackburn's English Queen's
Bench Reports.
El. & El. Ellis & Ellis' English Queen's Bench Re-
ports.
Elchies' Diet. Elchies' ,(Dictionary of) Decisions,
Scotch Court of Session.
Elec.Cas.N.Y. New York Election Cases (Arm-
strong's).
Ellis' English
Eliz. Queen Elizabeth, as 13 Eliz.
Ell.Bl. & Ell. Ellis, Blackburn, &
Queen's Bench Reports.
El I. D g. Eller's Digest, Minnesota.
1824

PDF page 1899

Enc. Encyclopaedia.
Enc.Amer. Encyclop aedia Americana.
Enc.Arch. Gwilt's Encyclopedia of Architecture.
Enc.Brit. Encyclopaedia Britannica.
Enc.Dict. Encyclopaedic Dictionary, Edited by Robert
Hunter 1879-1888.
Enc.Foi'ms. Encyclopaedia of Forms.
Enc.! ns.U.S. Insurance Year-Book.
Enc.Law (or Ency.Law). American
cyclopdedia of Law.
Enc.PI. & Prac. (or Enc.Pl. & Pr.).
Pleading and Practice.
E ncy.U.S.Su p.Ct.Rep. Encyclopedia
Supreme Court Reports.
Encyc. Encyclopaedia.
End.Bldg.Ass'ns. Endlich on Building Associations.
End.Interp.St. Endlich's Commentaries on the Inter-
pretation of Statutes.
Eng. English ;—English's Reports, vols. 6-13 Arkan-
sas ;—English Reports by N. C. Moak.
Eng.Ad. English Admiralty ;—English Admiralty Re-
ports.
Eng.C.C. (or Cr.Cas.). English Crown Cases.
Eng.C.L. English Common Law Reports.
Black's Law Dictionary Revised 4th Ed.--115
of United States
Encyclopedia of
and English En-
ESPRIT DES LOIS
Eng.Ch. English Chancery ;—English Chancery Re-
ports ;—Condensed English Chancery Reports.
Eng.Ecc.R. English Ecclesiastical Reports.
Eng.Eccl. English Ecclesiastical Reports.
Eng.Exch. English Exchequer Reports.
Eng.I r.App. Law Reports, English and Irish Appeal
Cases.
Eng.Judg. Scotch Court of Session Cases, decided by
the English Judges.
Eng.L. & Eq. (or Eng.Law & Eq.). English Law and
Equity Reports, American Reprint.
Eng.R. & C.Cas. English Railway and Canal Cases.
Eng.Rep. Moak's English Reports ;—English's Re-
ports, vols. 6-13 Arkansas; English Reports.
Eng.Rep.R. (or Re.). English Reports, Full Reprint.
Eng.Ru.Ga. English Ruling Cases.
Eng.Ry. & C.Cas. English Railway and Canal Cases.
Eng.Sc.Ecc. English and Scotch Ecclesiastical Re-
ports.
Eng. & I r.App. Law Reports, English and Irish Ap-
peal Cases.
English. English's Reports, vols. 6-13 Arkansas.
Ent. Coke's Entries ;—Rastell's Entries.
Entries, Ancient. Rastell's Entries (cited in Rolle's
Abridgment).
Eq. Equity.
Eq.Cas. Equity Cases in vol. 9 Modern Reports.
Eq.Cas.Abr. Equity Cases Abridged (English).
Eq.J udg. Equity Judgments (by A'Beckett) New
South Wales.
Eq.Rep. Equity Reports ;—Gilbert's Equity Reports ;
—Harper's South Carolina Equity Reports ;-
The Equity Reports, published by Spottiswoode.
Erie (or Erie Co.L.J.). Erie County Law Journal, Pa.
Err. & App. Error and Appeals Reports, Upper Can-
ada.
Ersk. Erskine's Institutes of the Law of Scotland ;-
Erskine's Principles of the Law of Scotland.
Ersk.Dec. Erskine's United States Circuit Court, etc.,
Decisions, in vol. 35 Georgia.
Ersk.l nst. Erskine's Institutes of the Law of Scot-
land.
Ersk.Prin. Erskine's Principles of the Law of Scot-
land.
Ersk.Speeches. Erskine's Speeches.
Erskine, I nst. Erskine's Institutes of the Law of
Scotland.
Escriche. Iscriche, Diccionario Razonado de Legisla-
cion y Jurisprudencia.
Escriche, Dic.Leg. Escriche, Diccionario Razonado
de Legislacion y Jurisprtidencia.
Escriche, Diet. Escriche's Dictionary of Jurispru-
dence.
Esp. (or Esp.N.P.) Espinasse's English Nisi Prius
Reports.
Esprit des Lois, Montesquieu, Esprit des Lois.
1825
Ell. & BI. Ellis & Blackburn's English Queen's Bench
Reports.
Ell. & Ell. Ellis & Ellis' English Queen's Bench Re-
ports.
Ellesm.Post N. Ellesmere's Post Nati.
Elliot, Deb.Fed.Const. Elliot's Debates on the Fed-
eral Constitution.
Elliott, App.Proc. Elliott's Appellate Procedure.
Elliott, R.R. Elliott on Railroads.
Elliott, Roads & S. Elliott on Roads and Streets.
Elliott, Supp. Elliott Supplement to the Indiana Re-
vised Statutes.
Ellis & Bl. Ellis and Blackburn's English Queen's
Bench Reports.
Elm.Dig. Elmer's Digest, New Jersey.
Elmer, Lun. Elmer's Practice in Lunacy.
Elph.l nterp.Deeds. Elphinstone's Rules for Interpre-
tation of Deeds.
Els.W.BI. Elsley's edition of Wm. Blackstone's Eng-
lish King's Bench Reports.
Elton, Com. Elton on Commons and Waste Lands.
Elton, Copyh. Elton on Copyholds.
Emerig.Assur. Emerigon, Traite des Assurances et
des Contrats a la Grosse.
Emerig.I ns. Emerigon on Insurance.
Emerig.Mar.Loans. Emerigon on Maritime Loans.
Emerig.Tr. des Ass. Emerigon, Traite des Assur-
ances.
Emerig.Traitê des Assur. Emerigon, Traite des As-
surances.

PDF page 1900

ETILNIC.
Eth.Nic. Aristotle, Nicomachean Ethics.
Euer. Euer, Eng.
Ev. Evidence.
Ev.Tr. Evans' Trial.
Ewell L.C. Ewell's Leading Cases on Infancy, etc.
Ex. English Exchequer Reports, Welsby, Hurlstone
& Gordon.
Ex.C.R. Exchequer Court of Canada Reports.
Ex.D. (or Ex.DIv.). Exchequer Division, English Law
Reports.
Ex.Sess. Extra Session.
Exch. Exchequer ;—Exchequer Reports (Welsby,
Hurlstone, & Gordon) ;—English Law Reports,
Exchequer;—English Exchequer Reports.
Exch.Can. Exchequer Reports, Canada.
Exch.Cas. Exchequer Cases (Legacy Duties, etc.),
Scotland.
Exch.DJv. Exchequer Division, English Law Reports.
Exch.Rep. Exchequer Reports.
Eyre. Eyre's Reports, English.
F. Federal Reporter ;—Fitzherbert's Abridgment.
F.2d. Federal Reporter, Second Series.
F.Abr. Fitzherbert's Abridgment is commonly re-
ferred to by the other law writers by the title
and number of the placita only, e. g. "coron, 30."
F.B.C. Fonblanque's Bankruptcy Cases.
F.B.R. Full Bench Rulings, Bengal.
F.B.R.N.W.P. Full Bench Rulings, Northwest Prov-
inces, India.
F.C. Federal Cases.
F.C.C. Federal Communications Commission.
F.Ct.Sess. Fraser's Court of Sessions Cases, Scotland.
F.N.B. Fitzherbert's Natura Brevium.
F.P.C. Federal Power Commission.
F.R. Federal Register ;—Federal Reporter.
F.R.D. Federal Rules Decisions.
F.S.A. Federal Statutes Annotated ;—Florida Stat-
utes Annotated.
F.Supp. Federal Supplement.
F.T.C. 'Federal Trade Commission.
F. & F. Foster & Finlason's English Nisi Prius Re-
ports.
F. & Fitz. Falconer & Fitzherbert's English Election
Cases.
F. & J.Bank.De Gex. Fisher & Jones' English Bank-
ruptcy Reports.
F. & S. Fox and Smith's Irish King's Bench Reports.
Fal rf. Fairfield, Me.
Fairfield. Fairfield's Reports, vols. 10-12 Maine.
Falc. Falconer's Scotch Court of Session Cases.
Falc.Marine Diet. Falconer's Marine Dictionary.
Falc. & F. (or Fate. & Fitz.). Falconer & Fitzherbert,
Eng.
Fam.Cas.Cir.Ev. Famous Cases of Circumstantial Ev-
idence, by Phillips.
Far. (or Farr.). Farresley (see Farresley).
Farresley. Farresley's Reports, vol. 7 Modern Re-
ports ;—Farresley's Cases in Holt's King's Bench
Reports.
Faust. Faust's Compiled Laws, S.O.
Fay.L.J. Fayette Law Journal, Pa.
Fearne, Rem. Fearne on Contingent Remainders.
Fed. Federal Reporter.
Fed.B.A.J. Federal Bar Association Journal.
Fed.Ca. (or Cas.). Federal Cases.
Fed.Cas.No. Federal Case Number.
Fed.L.Q. Federal Law Quarterly (Indianapolis).
Fed.R. (or Rep.). Federal Reporter.
Fed.Reg. Federal Register.
Fed.Rules Civ.Proe. Federal Rules of Civil Procedure.
Fed.Rules Cr.Proc. Federal Rules of Criminal Pro-
cedure.
Fent.I mp.Judg. Fenton's Important Judgments, New
Zealand.
Fent.N.Z. Fenton's New Zealand Reports.
Ferard, Fixt. Amos & Ferard on Fixtures.
Ferg.Cons. Fergusson's (Scotch) Consistorial Reports.
Fergusson. (Fergusson of) Kilgerran's Scotch Session
Cases.
Fernald, Eng. Synonyms. Fernald's English Syno-
nyms.
Ferriere. Ferriere's Dictionnaire de Droit et de
Pratique.
Fessen, Pat. Fessenden on Patents.
Fett.Carr. Fetter's Treatise on Carriers of Passen-
gers.
Feud.Lib. The Book of Feuds. See this dictionary,
8. v. "Liber Feudorum."
Ff. Pandectre (Juris Civilis).
Field, Corp. Field on Corporations.
Fin. Finch's English Chancery Reports ;—Finlason
(see Finl.).
Finch. English Chancery Reports tempore Finch.
Finch I ns.Dig. Finch's Insurance Digest.
Finch L.C. Finch's Land Cases.
Finch, Law. Finch, Sir Henry ; a Discourse of Law,
1759.
FinI.L.C. Finlason's Leading Cases on Pleading.
Finl.Rep. Finlason's Report of the Gurney Case.
First pt.Edw.111. Part II of the Year Books.
First pt.H.V1. Part VII of the Year Books.
Fish. Fisher's United States Patent Cases ;—Fisher's
United States Prize Cases.
Fish.Cas. Fisher's Cases, United States District
Courts.
1826

PDF page 1901

FREEM.C.C.
Fors.Cas. & Op. Forsyth's Cases and Opinions on Con-
stitutional Law.
Fort. Fortescue's English King's Bench Reports.
Fortes. Fortescue's Reports, English Courts.
Fortes.de Laud. Fortescue, De Laudibus Legum An-
glite.
Fortesc. Fortescue, Eng.
Fortnightly L.J. Fortnightly Law Journal.
Forum. Forum (periodical). Baltimore and New
York.
Foss, Judg. Foss' Judges of England.
Fost. Foster's English Crown haw or Crown Cases ;-
Foster's New Hampshire Reports ;—Foster's Legal
Chronicle Reports, Pennsylvania ;—Foster's Re-
ports, vols. 5, 6 and 8 Hawaii.
Fost.Cr.Law (or Fost.Crown Law). Foster's English
Crown Law or Crown Cases.
Fost.Fed.Prac. Foster's Treatise on Pleading and
Practice in Equity in Courts of United States.
Fost. on Sci.Fa. Foster on the Writ of Scire Facias.
Fost. & F. (or Fost. & Fin.). Foster and Finlason's
English Nisi Prins Reports.
Foster. Foster's English Crown Law ;—Legal Chron-
icle Reports (Pennsylvania), edited by Foster ;—
Foster's New Hampshire Reports.
Fount. Fountainhall's Decisions, Scotch Court of Ses-
sion.
Fou.nt.Dec. Fountainhall's Decisions, Scotland.
Fowl.L.Cas. Fowler's Leading Cases on Collieries.
Fox. Fox's Reports, English.
Fox Reg.Ca. Fox's Registration Cases.
Fox & S. (or Fox & Sm.). Fox & Smith's Irish King's
Bench Reports.
Fr. Freeman's English King's Bench and Chancery
Reports ;—Fragment.
Fr.Ch. Freeman's English Chancery Reports ;—Free-
man's Mississippi Chancery Reports.
Fr.E.C. Fraser's Election Cases.
Fran.Max. Francis' Maxims of Equity.
Franc.Judg. Francillon's Judgment County Courts.
France. France's Reports, vols. 3-11 Colorado.
Fras.Dom.Rel. Fraser on Personal and Domestic Re-
lations, Scotland.
Fras.Elec.Cas. Fraser's English Election Cases.
Fraser. Fraser's English Cases of Controverted Elec-
tions.
Fraz. (or Fraz.Adm.). Frazer's Admiralty Cases, etc.,
Scotland.
Free. Freeman's English King's Bench Reports, vol.
_1 Freeman's King's Bench Reports and vol. 2
Freeman's Chancery Reports. See also Freem.
Free.Ch. Freeman's English Chancery Reports ;-
Freeman's :Mississippi Chancery Reports.
Freem. Freeman's Reports, Illinois.
Freem.C.C. Freeman's English Chancery Cases.
Fish.Dig. Fisher's English Common Law Digest.
Fish.Mortg. Fisher on Mortgages.
Fish.Pat. (or Fish.Pat.Cas.). Fisher's United States
Patent Cases.
Fish.Pat.Rep. Fisher's United States Patent Reports.
Fish.Prize (or Pr.Cas.). Fisher's United States Prize
Cases.
Fisher (or Fish.Prize Cas.). Fisher's Prize Cases, U.
S.
Fitz. Fitzherbert's Abridgment (see F. & Fitz.).
Fitz.Abridg. Fitzherbert's Abridgment.
Fitzg. Fitzgibbon's English King's Bench Reports.
Fitzh.Abr. Fitzherbert's Abridgment.
Fitzh.N.B. (or Nat.Brev.). Fitzherbert's New Natura
Brevium.
Fitzh.N.Br. Fitzherbert's Natura Brevium, Eng.
Fl. Fleta ;---Flanders (see Hand.).
FL & K. (or Fl. & Kel.). Flanagan & Kelly's Irish
Rolls Court Reports.
Fla. Florida ;—Florida Reports.
Fla.L.J. Florida Law Journal.
Fla.L.Rev. Florida Law Review.
Flan. & Kel. Flanagan & Kelly's Irish Rolls Court Re-
ports.
Fleta. Fleta, Commentarius Juris Anglicani.
Flip. Flippin's United States Circuit Court Reports.
Flor. Florida ;—Florida Reports.
Fogg. Fo g g's Reports, vols. 32-37 New Hampshire.
Fol.P.L.Cas. Foley's Poor Law Cases.
Fo n b Fonblanque's Equity ;—Fonblanque on Medi-
cal Jurisprudence;—Fonblanque's New Reports,
English Bankruptcy.
Fon bl.Eq. Fonblanque's Equity.
Fonbl.R. Fonblanque's English Cases (or New Re-
ports) in Bankruptcy.
Foote & E.I ncorp.Co. Foote and Everett's Law of In-
corporated Companies Operating under Municipal
Franchises.
For. Forrest's Exchequer Reports ;—Forrester's
Chancery Reports (Cases tempore Talbot).
For.Cas. & Op. Forsyth's Cases and Opinions.
For.de Laud. Fortescue's De Laudibus Legum Anglia:.
Forb. Forbes' Decisions in the Scotch Court of Ses-
sion.
Forb.I nst. Forbes' Institutes of the Law of Scotland.
Forbes. Forbes, Eng.
Fordham L.Rev. Fordham Law Review.
Forman. Forman's Reports, Illinois.
Forr. Forrest's English Exchequer Reports ;—For-
rester's English Chancery Cases (commonly cited,
Cases tempore Talbot).
Forrest. Forrest's Reports, English Exchequer.
Forrester. Forrester's Cases, Eng.
1827

PDF page 1902

FREEM.COMPAR.POLMCS
Freem.ComparaPolltIcs. Freeman, Comparative Poli-
tics.
Freem.Judgm. Freeman on Judgments.
Freem.K.B. Freeman's English King's Bench Reports.
Fries Tr. Trial of John Fries (Treason).
Frith. Opinions Attorneys-General, pt. 2, vol. 21.
Full B.R. Full Bench Rulings, Bengal (or North-
western Provinces).
Fuller. Fuller's Reports, vols. 59-105 Michigan.
Fulton. Fulton's Reports, Bengal.
G. King George, as 15 Geo. II ;—Gale's English Ex-
chequer Reports.
G.Coop. (or Cooper). G. Cooper's English Chancery.
G.Gr. G. Greene's Iowa Reports.
G.M.Dudl. G. M. Dudley's Georgia Reports.
G.O. General Orders, Court of Chancery, Ontario.
G. & D. Gale & Davidson's English Queen's Bench Re-
ports.
G. & G. Goldsmith & Guthrie, Missouri.
G. & J. Gill & Johnson's Maryland Reports ;—Glyn &
Jameson's English Bankruptcy Reports.
G. & T. Gould & Tucker's Notes on Revised Statutes
of United States.
Ga. Georgia ;—Georgia Reports.
Ga.App. Georgia Appeals.
Ga.B.J. Georgia Bar Journal.
Ga.Dee. Georgia Decisions.
Ga.L.J. Georgia Law Journal.
Ga.L.Rep. Georgia Law Reporter.
Ga.L.Rev. Georgia Law Review.
Ga.Supp. Lester's Supplement, vol. 33 Georgia.
Gabb.Cr.Law. Gabbett's Criminal Law.
Galus. Gaius' Institutes.
Gal. (or Gall.). Gallison's Reports, United States Cir-
cuit Courts.
Galb. & M. Galbraith & Meek's Reports, vol. 12 Flor-
ida.
Galbraith. Galbraith's Reports, vols. 9-12 Florida.
Gale. Gale's English Exchequer Reports.
Gale, Easem. Gale on Easements.
Gale's St. Gale's Statutes, Ill.
Gale & Day . Gale & Davison's Queen's Bench Reports.
Gale & Whatley Easem. Gale and Whatley, after-
wards Gale, on Easements.
Gall. Gallison's Reports, United States Circuit
Courts.
Gall.Cr.Cas. Gallick's Reports (French Criminal
Cases).
Gamb. & Barl. Gamble & Barlow's Digest, Irish.
Gantt Dig. Gantt's Digest Statutes, Arkansas.
Gard.N.Y.Rept, (or Rep.). Gardenier's New York Re-
porter,
Garden/Jiro. Gardenhire's Reports, vols. 14, 15 Mis
souri.
Gard n.P.C. Gardner Peerage Case, reported by Le
Marchant.
Gaspar. Gaspar's Small Cause Court Reports, Bengal.
Gay . & H.Rev.St. Gavin and HorWs Revised Statutes,
Ind.
GayarriS. Gayarr6's Reports, vols. 25-28 Louisiana
Annual.
Gaz.Bank. Gazette of Bankruptcy, London.
Gaz.DIg. Gazzam's Digest of Bankruptcy Decisions.
Gaz. & B.C.Rep. Gazette & Bankrupt Court Reporter,
New York.
Gear, Land,. & T. Gear on Landlord and Tenant
Geld. & M. Geldart & Maddock's English Chancery
Reports, vol. 6 Maddock's Reports.
Geld. & Ox. Nova Scotia Decisions, by Geldert &
Oxley.
Geld. & R. Geldert & Russell, Nova Scotia.
Geldart. Geldart & Maddock's English Chancery Re-
ports, vol. 6 Maddock's Reports.
Gen.Abr.Cas.Eq. General Abridgment of Cases in Eq-
uity (Equity Cases Abridged).
Gen.Assem. General Assembly.
Gen.Dig. General Digest American and English Re-
ports.
Gen.Dig.U.S. General Digest of the United States.
Gen.Laws. General Laws.
Gen.Ord. General Orders, Ontario Court of Chancery.
Gen.Ord.Ch. General Orders of the English High
Court of Chancery.
Gen.R.R.Act. General Railroad Act.
Gen.St. General Statutes.
Geo. Georgia ;—Georgia Reports ;—King George (as
13 Geo. II.).
Geo.Coop. George Cooper's English Chancery Cases,
time of Eldon.
Geo.Deo. Georgia Decisions.
Geo.Dig. George's Digest, Mississippi.
Geo.Wash.L.Rev. George Washington Law Review.
George. George's Reports, vols. 30-39 Mississippi.
George, Partn. George on Partnership.
Georgetown L.J. Georgetown Law Journal.
Gib.Cod. Gibson's Codex Juris Ecclesiastical Angli-
cani.
Gib.Dec. Gibson's Scottish Decisions.
Gibb.Sur. Gibbon's Surrogate, N.Y.
Gibbon. Gibbon on Nuisances.
Gibbon, Rom.Emp. Gibbon, History of the Decline
and Fall of the Roman Empire.
Gibbs. Gibbs' Reports, vols. 2-4 Michigan.
Gibbs' Jud.Chr. Gibbs' Judicial Chronicle.
Gibs.Camd. Gibson's [edition of] Camden's Britannia.
Gibson. (Gibson of) Durie's Decisions, Scotch Court
of Session.
1828

PDF page 1903

GRANT, BANK.
Glanv. (or Glanvll.). Glanville, De Legibus et Con-
suetudinibus Anglire.
Glanv.El.Cas. Glanville's English Election Cases.
Glas. (or Glasc.). Glascock's Reports in all the Courts
of Ireland.
Glenn. Glenn's Reports, vols. 16-18 Louisiana Annual.
Glov.Mun.Corp. Glover on Municipal Corporations.
Glyn & J. (or Glyn & Jam.). Glyn & Jameson English
Reports, English Bankruptcy.
Go. Goebel's Probate Court Cases.
Godb. Godbolt's English King's Bench Reports.
Godd.Easem. Goddard on Easements.
Godo. Godolphin's Abridgment of Ecclesiastical Law ;
—Godolphin on Admiralty Jurisdiction ;—Godol-
phin's Orphan's Legacy ;—Godolphin's Repertori-
um Canonicum.
Godol.Ecc.Law. Godolphin's Abridgment of Ecclesi-
astical Law.
Goeb. Goebel's Probate Court Cases.
Gold. (or Goldes.). Goldesborough's or Gouldsbor-
ough's English King's Bench Reports.
Gold. & G. Goldsmith & Guthrie's Reports, vols. 36-67
Missouri Appeals.
Good.Pat. Goodeve's Abstract of Patent Cases.
Good. & Wood. Full Bench Rulings, Bengal, edited by
Goodeve & Woodman.
Gordon. Gordon's Reports, vols. 24-26 Colorado and
vols. 10-13 Colorado Appeals.
Gosf. Gosford's Manuscript Reports, Scotch Court
of Session.
Gould. Gouldsborough's English King's Bench Re-
ports.
Gould, Pl. Gould on Pleading.
Gould, Wat. Gould on Waters.
Gould's Dig. Gould's Digest of Laws, Ark.
Gould & T. Gould & Tucker's Notes on Revised Stat-
utes of United States.
Gouldsb. Gouldsborough, Eng.
Gow (or Gow N.P.). Gow's English Nisi Prius Cases.
Gr. Grant's Cases, Pennsylvania ;—Green's New Jer-
sey Reports ;—Greenleaf's Maine Reports ;-
Grant's Cases, Canada ;—Grant's Chancery Re-
ports, Ontario.
Gr.Ca. Grant's Cases.
Gr.Eq. (or Ch.). (H. W.) Green's New Jersey Equity
Reports ;—Gresley's Equity Evidence.
Gra. Grant (see Grant) ;—Graham's Reports, vols.
98-107 Georgia.
Grah. & W.New Trials. Graham and Waterman on
New Trials.
Grand Cou. Grand Coutumier de Normandie.
Granger. Granger's Reports, vols. 22-23 Ohio State.
Grant. Grant's Upper Canada Chancery Reports ;-
Grant's Pennsylvania Cases ;—(Grant of) Elchies'
Scotch Session Cases ;—Grant's Jamaica Reports.
Grant, Bank. Grant on Banking.
Gif. (or Giff.). Giffard's English Vice-Chancellors' Re-
ports.
Giff. & H. Giffard and Hemming's Reports, English
Chancery.
Giffard. Giffard, Eng.
Gil. Gilfillan's Edition, vols. 1-20 Minnesota ;—Gil-
man's Reports, vols. 6-10 Illinois ;—Gilmer's Vir-
ginia Reports ;—Gilbert's English Chancery Re-
ports ;—Gilbert's English Cases in Law and Equi-
ty.
Gil. & Fal. Gilmour & Falconer's Scotch Session
Cases.
Glib. Gilbert's Reports, English Chancery.
Gilb.C.P. (or GlIb.Com.Pl.). Gilbert's Common Pleas,
Eng.
Gilb.Cas. Gilbert's English Cases in Law and Equity.
GlibsCh. Gilbert's English Chancery Reports.
Gilb.Com.PI. Gilbert's Common Pleas.
Gilb.Eq. Gilbert's English Equity or Chancery Re-
ports.
Gilb.Exch. Gilbert's Exchequer, Eng.
Gilb.Forum Rom. Gilbert's Forum Romanum.
Gilb.Rents. Gilbert's Treatise on Rents.
Gilb.Rep. Gilbert's English Chancery Reports.
Glib.Repl. Gilbert on Replevin.
Gilb.Ten. Gilbert on Tenure.
Gilb.Uses. Gilbert on Uses and Trusts.
Gilbert, Ev. Gilbert's Law of Evidence.
Gilbert, Tenures. Gilbert on Tenures.
Gilbert, Uses, by Sugd. Gilbert's Uses and Trusts by
Sugden.
Gild. Gildersleeve's Reports, vols. 1-8 New Mexico.
Glifillan. Gilfillan's Edition of Minnesota Reports.
Gill. Gill's Maryland Reports.
Gill Pol.Rep. Gill's Police Court Reports, Boston,
Massachusetts.
Gill. & J. (Md.). Gill & Johnson's Reports, Maryland.
Gill & Johns. Gill & Johnson's Maryland Reports.
Gillet, Cr.Law. Gillett's Treatise on Criminal Law
and Procedure in Criminal Cases.
Glim. Gilman's Reports, vols. 6-10 Illinois ;—Gilmer's
Reports, Virginia ;—Gilmour's Reports, Scotch
Court of Session.
Gllm.Dig. Gilman's Digest, Illinois and Indiana.
Gilm. & Fale. Gilmour ' & Falconer's Reports, Scotch
Court of Session.
Gilman. Gilman, Ill.
Gilmer. Gilmer, Va.
Gilp. Gilpin's United States District Court Reports.
Gilp.Opin. Gilpin's Opinions of the United States At-
torneys-General.
Gl. & J. Glyn & Jameson's English Bankruptcy Re-
ports.
Glan.lib. Glanville, De Legibus et Consuetudinibus
Anglite.
1829

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GRANT CAS,
Grant Gas. Grant's Pennsylvania Cases.
Grant Ch. Grant's Upper Canada Chancery Reports.
Grant, Corp. Grant on Corporations.
Grant E. & A. Grant's Error and Appeal Reports,
Ontario.
Grant Err. & App. Grant's Error & Appeal, Upper
Canada.
Grant, Jamaica. Grant's Jamaica Reports.
Grant Pa. Grant's Pennsylvania Cases.
Grant U.C. Grant's Upper Canada Chancery Reports.
Grat. (or Gratt.). Grattan's Virginia Reports.
Gra y . de Jur.Nat.Gent. Gravina, De Jure Naturale
Gentium, etc.
Gravin. Gravina, Originum Juris Civilis.
Gray. Gray's Massachusetts Reports ;—Gray's Re-
ports, vols. 112-122 North Carolina.
Green. Green's New Jersey Law or Equity Reports ;—
Green's Reports, vols. 11-17 Rhode Island ;-
G. Greene's Iowa Reports ;—Greenleaf's Reports,
vols. 1-9 Maine ;—Green's Reports, vol. 1 Okla-
homa.
Green Bag. Green Bag, A Legal Journal, Boston.
Green (C.E.). C. E. Green's Chancery Reports, New
Jersey.
Green Ch. H. W. Green's New Jersey Chancery Re-
ports, vols. 2-4 New Jersey Equity.
Green Cr. Green's Criminal Law, Eng.
Green, Cr.Law R. (or Green iCr.L.Rep.). Green's Crim-
inal Law Reports.
Green, H.W. H. W. Green, N.J.
Green, J.S. J. S. Green, N.J.
Green L. (or N.J.). J. S. Green's Law Reports, vols.
13-15 New Jersey Law.
Green.0v.Cas. Greenleaf's Overruled Cases.
Green Sc.Tr. Green's Scottish Trials for Treason.
Greene. G. Greene's Iowa Reports ;—C. E. Green's
New Jersey Equity Reports, vols. 16-27 New Jer-
sey Equity ,—Greene's Reports, vol. 7 New York
Annotated Cases.
Greene. G. Greene's Iowa Reports.
Greenh.Pub.Pol. Greenhood's Doctrine of Public Pol-
icy in the Law of Contracts.
Green!. Greenleaf's Reports, vols. 1-9 Maine.
Greenl.Cruise (or Greenl.Cruise, Real Prop.). Green-
leaf's Edition of Cruise's Digest of Real Property.
Greenl.Ev. Greenleaf on Evidence.
Greenl.Ov.Gas. Greenleaf's Overruled Cases.
Green's Brice, Ultra Vires. Green's Edition of
Brice's Ultra Vires.
Gren. Grenier's Ceylon Reports.
Gres.Eq.Ev. Gresley's Equity Evidence.
Grif.L.Reg. Griffith's Law Register, Burlington, New
Jersey.
Grif.P.R.Cas. Griffith's English Poor Rate Cases.
Griffith. Griffith's Reports, vols. 1-5 Indiana Appeal
and vols. 117-132 Indiana.
Grisw. Griswold's Reports, vols. 14-19 Ohio.
Gro. Grotius, De Jure Belli et Pacis.
Gro. de J.B. Grotius, De Jure Bell et Pads.
Gross, St. Gross' Illinois Compiled Laws, or Statutes.
Grot. de Jur.B. Grotius, De Jure Belli et Pacis.
Grotius. Grotius' Latin Law.
Guizot, Hist.Civilization. Guizot, General History of
Civilization in Europe.
Guizot, Rep.Govt. Guizot, History of Representative
Government.
Gunby's Dec. Gunby's Decisions, La.
Gundry. Gundry Manuscript, Lincoln's Inn Library.
Guth.Sh.Cas. Guthrie's Sheriff Court Cases, Scotland.
Guthrie. Guthrie's Reports, vols. 33-83 Missouri Ap-
peals.
Guy, Med.J u r. Guy, Medical Jurisprudence.
Guyot, I nst.Feod. Guyot, Institutes Feodales.
Gwill.T.Cas. (or Gwil.Ti.Cas.). Gwillim's Tithe Cases,
Eng.
H. Howard's United States Supreme Court Reports ;
—Hill's New York Reports.
H.BI. Henry Blackstone's English Common Pleas Re-
ports.
H.C.R. High Court Reports, India.
H.C.R.N.W.P. High Court Reports, Northwest Prov-
inces, India.
H.E.C. Hodgin's Election Cases, Ontario.
H.L. (or H.L.Cas.). House of Lords Cases.
H.L.Rep. English House of Lords Reports.
H.P.C. Hale's Pleas of the Crown ;—Hawkins' Pleas
of the Crown.
H.W.Gr. H. W. Green's New Jersey Equity Reports.
H. & B. Hudson & Brooke's Irish King's Bench Re-
ports.
H. & C. Hurlstone & Coltman's English Exchequer
Reports.
H. & D. Lalor's Supplement to Hill & Denio's New
York Reports.
H. & G. Harris & Gill's Maryland Reports ;—Hurl-
stone & Gordon's English Reports.
H. & H. Horn & Hurlstone's English Exchequer Re-
ports ;—Harrison & Hodgin's Municipal Reports,
Upper Canada.
H. & J. Harris & Johnson's Maryland Reports ;—
Hayes & Jones' Exchequer Reports, Ireland.
H. & M. Hening & Munford's Virginia Reports ;-
Hemming & Miller's English Vice-Chancellors'
Reports.
H. & M.Ch. Hemming & Miller's English Vice-Chan-
cellors' Reports.
H. & Mc H. Harris & McHenry's Maryland Reports.
1830

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HAN.
H. & N. Flurlstone & Norman's English Exchequer
Reports.
H. & P. Hopwood & Pnilbrick's English Election
Cases.
H. & R. Harrison & Rutherford's English Common
Pleas Reports.
H. & S. Harris & Simrall, Mississippi.
H. & T. Hall & Twell's English Chancery Reports.
H. & T.Self-Def. Horrigan & Thompson's Cases on the
Law of Self-Defense.
H. & W. Harrison & Wollaston's English King's
Bench Reports ;—Hurlstone & Walmsley's English
Exchequer Reports.
Ha. Hare's Chancery Reports ;—Hall ;—Haggard.
Ha. & Tw. Hall & Twell's English Chancery Reports.
Had. Haddington ;—Hadley's Reports, vols. 45-48
New Hampshire.
Hadd. Haddington, Eng.
H add i n gton. Haddington's Manuscript Reports,
Scotch Court of Session.
Hadl. Hadley's Reports, vols. 45-48 New Hampshire.
Hadl.Rom.Law. Hadley's Introduction to the Roman
Law.
Hadley. Hadley's Reports, vols. 45-48 New Hamp-
shire.
Hag. (or Hagg.) Adm. Haggard's English Admiralty
Reports.
Hag. (or Hagg.) Con. Haggard's English Consistory
Reports.
Hag. (or Hagg.) Ecc. Haggard's English Ecclesiasti-
cal Reports.
Hagan. Hagan's Reports, vols. 1-2 Utah.
Hagans. Hagans' Reports, vols. 1-5 West Virginia.
Hagg. See Hag.
Hagg.Adm. Haggard's English Admiralty Reports.
Hagg.Cons. (or Hagg.Consist.).  Haggard's English
Consistory Reports.
Hagg.Ecc. Haggard's English Ecclesiastical Reports.
Hagn.& Mill. Hagner & Miller's Reports, vol. 2 Mary-
land Chancery.
Hailes (or Hailes Dec.). Hailes' Decisions, Scotch
Court of Sessions.
Hallaw. Halsted's New Jersey Law Reports.
Halc.Min.Cas. Halcomb's Mining Cases, London, 1826.
Hale. I lalo's Itoports, vols. 33-37 CaIifornia.;—H^l1 's
Common Law, Eng.
Hale, Anal. Hale's Analysis of the Law.
Hale C.L. (or Com.Law). Hale's History of the Com-
mon Law.
Hale, De Jure Mar. Hale, De Jure Maris.
Hale Ecc. Hale's Ecclesiastical Reports, English.
Hale, Hist.Eng.Law. Hale's History of the English
Law.
Hale P.C. Hale's Pleas of the Crown.
Hale Prec. Hale's Precedents in (Ecclesiastical)
Criminal Cases.
Hale, Torts. Hale on Torts.
Halk. Halkerston's Compendium of Scotch Faculty
Decisions ;—Halkerston's Digest of the Scotch
Marriage Law ;—Halkerston's Latin Maxims.
Halk.Comp. Halkerston's Compendium of Scotch Fac-
ulty Decisions.
Halk.Lat.Max. Halkerston's Latin Maxims.
Hall. Hall's New York Superior Court Reports ;-
Hall's Reports, vols. 56, 57 New Hampshire ;—
Hallett's Reports, vols. 1, 2 Colorado.
Hall.Const.Hist. Hallam's Constitutional History of
England.
Hall, Emdrig.Mar.Loans. Hall, Essay on Maritime
Loans from the French of Emerigon.
Hall, Int.Law. Hall on International Law.
Hall, Marit.Loans. Hall, Essay on Maritime Loans
from the French of Emerigon.
Hall, Mex.Law. Hall, Laws of Mexico Relating to
Real Property, etc.
Hall. Middle Ages. Hallam's Middle Ages.
Hall, Profits a Prendre. Hall, Treatise on the Law
Relating to Profits a Prendre, etc.
Hall's Am.L.J. Hall's American Law Journal.
Hall & T. (or Hall & Tw.). Hall & Twells, Eng.
Hallam, Mid.Ages. Hallam's Middle Ages.
Halleck, I nt.Law. Halleck's International Law.
Hallett. Hallett's Reports, vols. 1, 2 Colorado.
Hallifax, Anal. (or Civil Law). Hallifax's Analysis
of the Civil Law.
Hals. Halsted's New Jersey Law Reports.
Hals.Ch. (or Eq.). Halsted's New Jersey Equity Re-
ports.
Halsbury L.Eng. Halsbury's Law of England.
Halst. Halsted, N. J.
Halst.Gh. Halsted's Chancery, N.J.
Ham. Hammond's Nisi Prius ;—Hammond's Reports,
vols. 1-9 Ohio.
Ham.A. & 0. Hammerton, Allen & Otter, English
Magistrates' Cases, vol. 3 New Sessions Cases.
Ham.Cont. Hammon on Contracts.
Ham.N.P. Hammond's Nisi Prius.
Ham.Parties. Hammond on Parties to Action.
Hamel, Gust. Hamel's Laws of the Customs.
Hamilton. (Hamilton of) Haddington's Manuscript
Cases, Scotch Court of Session ;—Hamilton, Amer-
ican Negligence Cases.
Hamlin. Hamlin's Reports, vols. 81-93 Maine.
Hammond. Hammond's Reports, vols. 1-9 Ohio ;—
Hammond's Reports, vols. 36-45 Georgia.
Hammond & Jackson. Hammond & Jackson's Re-
ports, vol. 45 Georgia.
Han. Handy's Ohio Reports.
1831

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HAN. (OR HAN. [N.B.] ).
Han. (or Han. [N.B.]). Hannay's Reports, vols. 12,13
New Brunswick.
Hand. Hand's Reports, vols. 40-45 New York ;—
Handy's Ohio Reports.
Handy. Handy's Ohio Reports.
Hanes. Hanes' English Chancery.
Hanmer. Lord Kenyon's Notes (English King's Bench
Reports), edited by Hanmer.
Hann. Hannay's Reports, vols. 12, 13 New Bruns-
wick.
Hansb. Hansbrough's Reports, vols. 76-90 Virginia.
Har. Harmonized ;—Harrison (see Harr.) ;—Harring-
ton's Chancery Reports, Michigan.
Har. (Del.). Harrington's Reports, vols. 1-5 Dela-
ware.
Har.St.Tr. Hargrave's State Trials.
Har. & G. (or Har. & Gill). Harris & Gill's Maryland
Reports.
Har. & J. (Md.). Harris & Johnson's Maryland Re-
ports.
Har. & John. Harris & Johnson's Maryland Reports.
Har. & McH. Harris & McHenry's Maryland Reports.
Har. & Ruth. Harrison & Rutherford's English
Common Pleas Reports.
Har. & Woll. Harrison & Wollaston's English King's
Bench Reports.
Hara Harcarse's Decisions, Scotch Court of Session.
Hard. (or Hardin). Hardin's Kentucky Reports.
Hard. (or Hardres). Hardres' English Exchequer Re-
ports.
Hardes. Hardesty, Delaware Term Reports.
Hardr. (or Hardres). Hardres' English Exchequer
Reports.
Hardy/. Cases tempore Hardwicke, by Ridgeway ;-
Cases tempore Hardwicke, by Lee.
Hare. Hare's English Vice-Chancellors' Reports.
Hare, Const.Law. Hare's American Constitutional
Law.
Hare & Wal.L.C. American Leading Cases, edited by
Hare & Wallace.
Harg. Hargrave's State Trials ;—Hargrove's Re-
ports, vols. 68-75 North Carolina.
Harg.Go.Litt. Hargrave's Notes to Coke on Littleton.
Harg.Law Tracts. Hargrave's Law Tracts.
Harg.St.Tr. (or State Tr.). Hargrave's State Trials.
Hargrave & Butler's Notes on Co.Litt. Hargrave and
Butler's Notes on Coke on Littleton.
Hargrove. Hargrove's Reports, vols. 68-75 North
Carolina.
Harm. Harmon's Reports, vols. 13-15 California ;-
Harmon's Upper Canada Common Pleas Reports.
Harp. Harper's South Carolina Law Reports.
Harp.Con.Gas. Harper's Conspiracy Cases, Mary-
land.
Harp.Eq. Harper's Equity Reports, South Caro-
lina.
• Harp.L. (or S.C.). Harper's Law Reports, South Car-
olina.
Harr. Harrison's Reports, New Jersey ;—Harring-
ton's Reports, Delaware ;—Harrington's Chancery
Reports, Michigan ;—Harris' Reports, vols. 13-
24 Pennsylvania ;—Harrison's Reports, vols. 15-
17 and 23-29 Indiana.
Harr. (Mich.). Harrington's Michigan Chancery Re-
ports.
Harr. (N.J.). Harrison's Reports, vols. 16-19 New
Jersey Law.
Harr.Ch. Harrison's Chancery, Eng.
Harr.Con.La.R. Harrison's Condensed Louisiana Re-
ports.
Harr.Dig. Harrison's Digest, English.
Harr. & G. Harris & Gill's Maryland Reports.
Harr. & H. (or Harr. & Hodg.). Harrison & Hodgin's
Upper Canada Municipal Reports.
Harr. & J. Harris & Johnson's Maryland Reports.
Harr. & McH. Harris & McHenry's Maryland Re-
ports.
Harr. & R. (or Harr. & Ruth.). Harrison & Ruther-
ford's English Common Pleas Reports.
Harr. & Sim. Harris & Simrall's Reports, vols. 49-
52 Mississippi.
Harr. & W. (or Harr. & Woll.). Harrison & Wolla-
ston's English King's Bench Reports.
Harr' n g. Harrington's Delaware Reports ;—Har-
rington's Michigan Chancery Reports.
Harris. Harris' Reports, vols. 13-24 Pennsylvania.
Harris Dig. Harris' Digest, Georgia.
Harris & Sim rall. Harris & Simrall's Reports, vols.
49-52 Mississippi.
Harrison. Harrison's Reports, vols. 15-17 and 23-
29 Indiana.
Harrison, Ch. Harrison's Chancery Practice.
Hart. Hartley's Reports, vols. 4-10 Texas ;—Hart-
ley's Digest of Texas Laws.
Hart.Dig. Hartley's Digest of Laws, Tex.
Hartley. Hartley's Reports, vols. 4-10 Texas.
Hartley & Hartley. Hartley & Hartley's Reports,
vols. 11-21 Texas.
Harv.L.Rev. Harvard Law Review.
Hasb. Hasbrouck's Reports, Idaho.
Hask. Haskell's United States Circuit Court Reports.
Hast. Hastings' Reports, vols. 69-70 Maine.
Hats. Hatsell's Parliamentary Precedents.
Hay .Ch.Rep. Haviland's Chancery Reports, Prince
Edward Island.
Hay .P.E.I. Haviland's Reports, Prince Edward Is-
land.
Havi I. Haviland, Pr.Edw.Isl.
Haw. Hawkins (see Hawk.);—Hawaiian Reports ;—
Hawley's Reports, vols. 10-20 Nevada.
Haw.Gr.Rep. Hawley's American Criminal Reports.
Haw.W.C. Hawes' Will Case.
1832

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HILL S.C.
Hawaii (or Hawaiian Rep.). Hawaii (Sandwich Is-
lands) Reports.
Hawall.Fed. Hawaiian Federal.
Hawes, Jur. Hawes on Jurisdiction of Courts.
Hawk. (or Hawk.P.C. [or PI.Cr.]). Hawkins' Pleas of
the Crown.
Hawk.Colitt. Hawkins' Coke upon Littleton.
Hawk.Wills. Hawkins' Construction of Wills.
Hawkins. Hawkins' Reports, vols. 19-24 Louisiana
Annual.
Hawks. Hawks' North Carolina Reports.
Hawl.Cr.R. Hawley's American Criminal Reports.
Hawley. Hawley's Reports, vols. 10-20 Nevada.
Hay. Haywood's North Carolina Reports ;—Hay-
wood's Tennessee Reports (Haywood's Reports
are sometimes referred to as though numbered
consecutively from North Carolina through Ten-
nessee) ;—Hayes' Irish Exchequer Reports. See
also Hayes ;—Hayes' Reports, Calcutta ;—Hay's
Scotch Decisions.
Hay Ace. (or Dec.). Hay's Decisions on Accidents
and Negligence.
Hay.Exch. Hayes' Irish Exchequer Reports.
Hay P.L. Hay's Poor Law Decisions.
Hay. & H. Hayward & Hazelton's United States Cir-
cuit Court Reports.
Hay. & Haz. Hayward & Hazelton, Circuit Court,
District of Columbia.
Hay. & J. Hayes & Jones, Irish.
Hay & M. (or Marr.). Hay & Marriott's Admiralty
Reports (usually cited, Marriott's Reports).
Hayes (or Hayes Exch.). Hayes' Irish Exchequer Re-
ports.
Hayes, Con y . Hayes on Conveyancing.
Hayes & J. (or Hayes & Jo. [or Jon.]). Hayes & Jones'
Irish Exchequer Reports.
Hayn.Lead.Cas-. Haynes' Students' Leading Cases.
Haynes, Eq. Haynes' Outlines of Equity.
Hayw. Haywood's North Carolina Reports ;—Hay-
wood's Tennessee Reports (see Hay.).
Hayw.L.R. Hayward's Law Register, Boston.
Hayw. & H. Hayward & Hazelton's United States
Circuit Court Reports.
Haz.Reg. (or Haz.Pa.Reg.). Hazard's Register, Pa.
Haz.U.S.Reg. Hazard's United States Register.
Head. Head's Tennessee Reports.
Heard's Shortt, Extr.Rem. Heard's Edition of Shortt
on Extraordinary Legal Remedies.
Heath. Heath's Reports, vols. 36-40 Maine.
Heck.Cas. Hecker's Cases on Warranty.
Hedges. Hedges' Reports, vols. 2-6 Montana.
Heinecc.Ant.Rom. Heineccius (J. G.) Antiquitatum
Romanarum (Roman Antiquities).
Heinecc. de Camb. Heineccius (J. G.) Elementa Juris
Cambialis.
Helnecc.Elem. Heineccius (J. G.) Elementa Juris
Civilis (Elements of the Civil Law.)
Helsk. Heiskell's Tennessee Reports.
Helm. Helm's Reports, vols. 2-9 Nevada.
Hem. Hempstead, United States ;—Hemmingway,
Mississippi.
Hem. & M. Hemming & Miller's English Vice-Chan-
cellors' Reports.
Hemp. (or Hempst.). Hempstead's United States Cir-
cuit Court Reports.
Hen. King Henry, as 8 Hen. VI.
Hen.BI. Henry Blackstone's English Common Pleas
Reports.
Hen.Man.Cas. Henry's Manumission Cases.
Hen.St. Hening's Statutes, Va.
Hen. & M. (Va.). Hening & Munford's Virginia Re-
ports.
Hen. & Mun. Hening & Munford's Virginia Reports.
Hepb. Hepburn's Reports, vols. 3, 4 California;—
Hepburn's Reports, vol. 13 Pennsylvania.
Herm.Estop. Herman's Law of Estoppel.
Herm.Ex'ns. Herman's Law of Executions.
Het. (or Heti. or Het.C.P.). Hetley's Common Pleas,
Eng.
Heyw.Ca. Heywood's Table of Cases, Georgia.
Hibb. Hibbard's Reports, vol. 20 Opinions Attor-
neys-General ;—Hibbard's Reports, vol. 67 New
Hampshire.
High Ct. High Court Reports, Northwest Provinces
of India.
High, Extr.Leg.Rem. High on Extraordinary Legal
Remedies.
High, I nj. High on Injunctions.
High, Rec. High on Receivers.
Hight. Hight's Reports, vols. 57-58 Iowa.
Hil.Abr. Hilliard's American Law.
Hil.T. Hilary Term, Eng.
Hil.Term 4, Will. IV. Hilary Term 4, William IV.
Hil.Torts. Hilliard on the Law of Torts.
Hill. Hill's New York Reports ;—Hill's Law Reports,
South Carolina.
Hill.Am.Law. Hilliard's American Law.
Hill.Cont. Hilliard on Contracts.
Hil.Elem.Law. Hilliard's Elements of Law.
Hill Eq. (or Ch.). Hill's Equity, South Carolina Re-
ports.
Hill, Law. Hill's Law, S.C.
Hi II.Mortg. Hilliard's Law of Mortgages.
Hill N.Y. Hill's New York Reports.
Hill.New Trials. Hilliard on New Trials.
Hill.Real Prop. Hilliard on Real Property.
Hill S.C. Hill's South Carolina Reports (Law or Eq-
uity).
1833

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HILL'S ANN.CODES & LAWS
Hill's Ann.Godes & Laws. Hill's Annotated Codes and
General Laws, Or.
H i II's An n.St. & Codes. Hill's Annotated General Stat-
utes and Codes, Wash.
Hill's Code. Hill's Annotated Codes and General
Laws, Or. ;—Hill's Annotated General Statutes
and Codes, Wash.
Hill &Den. Hill & Denio, New York.
Hill & D.Supp. (or Hill & Den.Supp.). Lalor's Supple-
ment to Hill & Denio's Reports, N.Y.
Hilliard, R.P. Hilliard on Real Property.
Hillyer. Hillyer's Reports, vols. 20-22 California.
Hilt. Hilton's New York Common Pleas Reports.
Hinde Ch.Pr. Hinde, Modern Practice of the High
Court of Chancery.
Hines. Hines' Reports, vols. 83-96 Kentucky.
Hittell's Laws. Hittell's General Laws, Cal.
Ho.Lords Cas. House of Lords Cases (Clark's).
Hob. Hobart's English King's Bench Reports.
Hodg. Hodges' English Common Pleas Reports.
Hodg.Can.Elec.Cas. Hodgin's Canada Election Cases.
Hodg.El. Hodgins' Election, Upper Canada.
Hodge, Presb.Law. Hodge on Presbyterian Law.
Hodges. Hodges, Eng.
Hoff. Hoffman's Land Cases, United States District
Court ;—Hoffman's New York Chancery Reports.
Hoff.Ch. Hoffman's New York Chancery Reports.
Hoff.Dec. Hoffman's Decisions.
Hoff.Land (or Hoff.L.Cas.). Hoffman's Land Cases,
United States District Court.
Hoff.Lead.Cas. Hoffman's Leading Cases on Com-
mercial Law.
Hoff.Mast. Hoffman's Master in Chancery.
Hoff.N.Y. (or Hoffm.Ch.). Hoffman's New York Chan-
cery Reports.
Hoff.Op. Hoffman's Opinions.
Hog. Hogan's Irish Rolls Court Reports ;—(Hogan
of) Harcarse's Scotch Session Cases.
Hog.St.Tr. Hogan's State Trials, Pennsylvania.
Hogue. Hogue's Reports, vols. 1-4 Florida.
Hole.L.Cas. Holcombe's Leading Cases of Commercial
Law.
H ol I.J u r. Holland's Elements of Jurisprudence.
Hollinshead. Hollinshead's Reports, vol. 1 Minnesota.
Holm. (or Holmes). Holmes' United States Circuit
Court Reports ;—Holmes' Reports, vols. 15-17 Or-
egon.
Holt. Holt's English King's Bench Reports ;—Holt's
English Nisi Prius Reports ;—Holt's English Equi-
ty Reports.
Holt Adm.Cas. Holt's English Admiralty Cases (Rule
of the Road).
Holt Eq. Holt's English Equity Reports.
Holt K.B. Holt's English King's Bench Reports.
Holt N.P. Holt's English Nisi Prius Reports.
Holt R. of R. Holt's Rule of the Road Cases.
Holt, Shipp. Holt on Shipping.
Holthouse (or Holthouse, Law Dict.). Holthouse's
Law Dictionary.
Holtz.Enc. Holtzendorff. EncyclopUdie der Recht-
swissenschaft. (Encyclopedia of Jurisprudence.)
Home (or Home H.Dec.). Home's Manuscript Deci-
sions, Scotch Court of Session. See also Karnes.
Hooker. Hooker's Reports, vols. 25-62 Connecticut.
Hoon. Hoonahan's Sind Reports, India.
Hop. & C. Hopwood & Coltman's English Registra-
tion Appeal Cases.
Hop. & Ph. Hopwood & Philbrick's English Registra-
tion Appeal Cases,
Hope. Hope (of Kerse) Manuscript Decisions, Scotch
Court of Session.
Hope Dec. Hope's Decisions, Scotland.
Hopk.Adm. (or Judg.). Hopkinson's Pennsylvania Ad-
miralty Judgments.
Hopk.Adm.Dec. Admiralty Decisions of Hopkinson in
Gilpin's Reports.
Hopk.Ch. Hopkins' New York Chancery Reports.
Hopk.Dec. Hopkins' Decisions, Pa.
Hopk.Wks. Hopkinson's Works, Pa.
Hopw. & C. (or Hopw. & Colt.). Hopwood & Coltman's
English Registration Appeal Cases.
Hopw. & P. (or Hopw. & Phil.). Hopwood & Phil-
brick's English Registration Appeal Cases.
Her. & Th.Cas. Horrigan & Thompson's Cases on
Self-Defense.
Horn & H. Horn & Hurlstone's English Exchequer
Reports.
Horne, M.J. Horne's Mirror of Justice.
Horner. Horner's Reports, vols. 11-23 South Dakota.
Horner's Ann.St. Horner's Annotated Revised Stat-
utes, Ind.
Horner's Rev.St. Horner's Annotated Revised Stat-
utes, Ind.
Horr & B.Mun.Ord. Horr and Bemis' Treatise on Mu-
nicipal Police Ordinances.
Horr. & Th. (or Horr. & T.Cas.Self-Def.).  Horrigan
and Thompson's Cases on Self-Defense.
Horw.Y.B. Horwood's Year Books of Edward I.
Hosea. Hosea, Ohio.
Hoskins. Hoskins' Reports, vol. 2 North Dakota.
Hough C.-M.Cas. Hough's Court-Martial Case Book,
London, 1821.
Houghton. Houghton's Reports, vol. 97 Alabama.
Hous. Houston's Delaware Reports.
House of L. House of Lords Cases.
Roust. Houston's Delaware Reports.
Houst.Gr.Cas. Houston's Delaware Criminal Cases.
Hoy . Hovenden on Frauds ;—Hovenden's Supple-
ment to Vesey, Jr.'s, English Chancery Reports.
1834

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Hov.Sup. Hovenden's Supplement to Vesey, Jr.'s,
English Chancery Reports.
Hoved. Hoveden, Chronica.
How. Howard's United States Supreme Court Re-
ports ;—Howard's • Mississippi Reports ;—How-
ard's New York Practice Reports ;—Howell's Re-
ports, vols. 22-23 Nevada.
How. (Miss.). Howard's Mississippi Reports.
How.Ann.St. Howell's Annotated Statutes, Mich.
How.App. (or How.App.Cas.). Howard's Appeal Cas-
es, N.Y.
How.Cas. Howard's New York Court of Appeals
Cases ;—Howard's Popery Cases.
How.Ch.—Howard's Chancery, Ireland.
How.Cr.Tr. Howison's Criminal Trials, Virginia.
How.Eq.Exch. Howard's Equity Exchequer.
How.L.Rev. Howard Law Review.
How.N.S. Howard's New York Practice Reports, New
Series.
How.Pr. Howard's New York Practice Reports.
How.Pr.N.S. (or How.Prac.,N.S.). Howard's Practice,
New Series, N.Y.
How.Prac. (N.Y.). Howard's New York Practice Re-
ports.
How.S.C. (or U.S.), Howard's United States Supreme
Court Reports.
How.St. Howell's Annotated Statutes, Mich.
How.St.Tr. (or State Tr.). Howell's English State
Trials.
How. & Beat. Howell & Beatty's Reports, vol. 22
Nevada.
How. & H.St. Howard and Hutchinson's Statutes,
Miss.
How. & Nor. Howell & Norcross' Reports, vols. 23, 24
Nevada.
Howell N.P. Howell's Nisi Prius Reports, Michigan.
Howell, St.Tr. Howell's English State Trials.
Hu. Hughes' United States Circuit Court Reports ;—
Hughes' Kentucky Reports.
Hub.Leg.Direc. Hubbell's Legal Directory.
Hub.Prwl.J.C. Huber, Prlectiones Juris Civilis.
Hubb.Succ. Hubback's Evidence of Succession.
Hubbard. Hubbard's Reports, vols. 45-51 Maine.
Hud. & B. (or Hud. & Br.). Hudson & Brooke's Irish
King's Bench Reports.
Hugh. Hughes' United States Circuit Court Reports ;
—Hughes' Kentucky Reports.
H ug h.(Ky.). Hughes' Kentucky Reports.
Hughes. Hughes' United States Circuit Court Re-
ports.
Hughes Fed.Prac. Hughes Federal Practice.
Hugo, Hist. du Droit Rom. Hugo, Histoire du Droit
Romain.
H u m. Humphrey's Tennessee Reports.
Hume. Hume's Scotch Session Cases.
Hume, Hist.Eng. Hume's History of England.
Humph. (or Humph. [Tenn.]). Humphrey's Tennessee
Reports.
Hun. Hun's New York Supreme Court Reports, also
Appellate Division Supreme Court, New York.
Hunt, Bound. Hunt's Law of Boundaries and Fences.
Hunt ,Cas. Hunt's Annuity Cases.
Hunt, Eq. Hunt's Suit in Equity.
Hunter, Rom.Law. Hunter on Roman Law.
Hunter, Suit Eq. Hunter's Proceeding in a Suit in
Equity.
Hur. Hurlstone (see Hurl.).
Hurd's Rev.St. Hurd's Revised Statutes, Ill.
Hurl. & C. (or Colt.). Hurlstone & Coltman's English
Exchequer Reports.
Hurl.Bonds. Hurlstone on Bonds.
Hurl. & G. (or Hurl. & Gord.). Hurlstone and Gordon's
Reports, 10, 11, English Exchequer Reports.
Hurl. & N. (or Nor.). Hurlstone & Norman's English
Exchequer Reports.
Hurl. & W. (or Hurl. & Walm.). Hurlstone & Walms-
ley's English Exchequer Reports.
Hut. Hutton's English Common Pleas Reports.
Hutch. Hutcheson's Reports, vols. 81-84 Alabama.
Hutch.Carr. Hutchinson on Carriers.
Hutch.Code. Hutchinson's Code, Miss.
Hutch.Dig.St. Hutchinson's Code, Miss.
Hutt. Hutton's English Common Pleas Reports.
Hyde. Hyde's Reports, Bengal.
II. Idaho ;—Illinois ;—Indiana ;—Iowa ;—Irish (see
Ir.).
I.C.A. Iowa Code Annotated.
I.C.C. Interstate Commerce Commission.
I.C.L.R. Irish Common Law Reports.
I.C.R. Irish Chancery Reports ;—Irish Circuit Re-
ports.
I.E.R. Irish Equity Reports.
I.J.Cas. Irvine's Justiciary Cases, Scotland.
I.R. Irish Reports.
I.R.C. Internal Revenue Code.
I.R.C.L. Irish Reports, Common Law Series.
I.R.Eq. Irish Reports, Equity Series.
I.R.R. International Revenue Record, New York City.
I.T.R. Irish Term Reports, by Ridgeway, Lapp &
Schoales.
Ia. Iowa ;—Iowa Reports.
Ida. (or Idaho). Idaho ;—Idaho Reports.
Idaho L.J. Idaho Law Journal.
Iddings D.R.D. Iddings Dayton Term Reports.
Iddings T.R.D. Iddings' Dayton Term Reports.
III. Illinois ;—Illinois Reports.
1835

PDF page 1910

ELL.APP.
III.App. Illinois Appeal Reports.
III.B.J. Illinois Bar Journal.
III.C.C. Illinois Circuit Court.
III.L.B. Illinois Law Bulletin.
III.L.Q. Illinois Law Quarterly.
III.L.Rev. Illinois Law Review.
III.Rev.Stat. Illinois Revised Statutes State Bar As-
sociation Edition.
I m p.D1ct. Imperial Dictionary.
Imp.Fed. Imperial Federation, London.
Ind. Indiana ;—Indiana Reports ;—India ;—(East) In-
dian.
Ind.App. Law Reports, Indian Appeals ;—Indiana Ap-
peals.
Ind.App.Supp. Supplemental Indian Appeals, Law Re-
ports.
Ind.Jur. Indian Jurist, Calcutta ;—Indian Jurist,
Madras.
Ind.L.J. Indiana Law Journal.
Ind.L.R. (East) Indian Law Reports.
Ind.L.R.Alla. 'Indian Law Reports, Allahabad.
Ind.LR.Bomb. Indian Law Reports, Bombay Series.
Ind.L.R.Calc. Indian Law Reports, Calcutta Series.
Ind.L.R.Mad. Indian Law Reports, Madras Series.
Ind.L.Reg. Indiana Legal Register.
Ind.L.Rep. Indiana Law Reporter.
Ind.Rep. Indiana Reports ;—Index Reporter.
Ind.Su per. Indiana Superior Court Reports (Wil-
son's).
I nd.T. Indian Territory ;—Indian Territory Reports.
Ind.T.Ann.St. Indian Territory Annotated Statutes.
Ing.Ves. Ingraham's edition of Vesey, Jr.
I, 2, Inst. (1, 2) Coke's Inst.
Ins.Law J. Insurance Law Journal, Pa.
Ins.Rep. Insurance Reporter, Phila., Pa.
Inst., I, 2, 3. Justinian's Inst. lib. 1, tit. 2, § 3.
Inst., I, 2, 31. Justinian's Institutes, lib. 1, tit. 2, § 31.
The Institutes of Justinian are divided into four
books,—each book is divided into titles, and each title
into paragraphs, of which the first, described by the
letters pr., or princip., is not numbered. The old meth-
od of citing the Institutes was to give the commencing
words of the paragraph and of the title; e. g., § si
adversus, Inst. de Nuptiis. Sometimes the number of
the paragraph was introduced, e.g § 12, si adversus,
Inst. de Nuptiis. The modern way is to give the num-
ber of the book, title, and paragraph, thus ,—Inst. 1.
10, 12; would be read Inst., Lib. I. tit. 10, § 12.
Inst.Epll. Epilogue to [a designated part or volume
of] Coke's Institutes.
Inst.Proem. Proeme [introduction] to [a designated
part or volume of] Coke's Institutes.
I n st r.Cler. Instructor Clericalis.
Int.L.N. International Law Notes.
Int.Private Law. Westlake's Private International
Law.
In t.Rev. M a n ua I. Internal Revenue Manual
Int.Rev.Rec. Internal Revenue Record.
Internat.DIct. Webster's International Dictionary.
Interst.Gom.R. Interstate Commerce Reports.
Iowa. Iowa Reports.
Iowa L.B. Iowa Law Bulletin.
Iowa L.Rev. Iowa Law Review.
Ir. Irish ,--Ireland ;—Iredell's North Carolina Law
or Equity Reports.
1891 Ir. Law Reports, 1891, Irish.
Ir.C.L. Irish Common Law Reports.
Ir.Ch. Irish Chancery Reports.
Ir.Clr. (or Ir.C1r.Rep.). Irish Circuit Reports.
Ir.Com.Law Rep. Irish Common Law Reports.
Ir.Eccl. Irish Ecclesiastical Reports, by Milward.
Ir.Eq. Irish Equity Reports.
Ir.J ur. Irish Jurist.
Ir.L. Irish Law Reports.
Ir.L.N.S. Irish Common Law Reports.
Ir.L.R. Irish Law Reports ;—The Law Reports, Ire-
land, now cited by the year.
Ir.L.T. Irish Law Times (Dublin).
Ir.L.T.Jour. Irish Law Times Journal.
Ir.L.T.Rep. Irish Law Times Reports.
Ir.Law Rec. Irish Law Recorder.
Ir.Law Rep. Irish Law Reports.
Ir.Law Rep.N.S. Irish Common Law Reports.
Ir.Law & Ch. Irish Common Law and Chancery Re-
ports (New Series).
Ir.Law & Eq. Irish Law and Equity Reports (Old
Series).
Ir.R.I 894. Irish Law Reports for year 1894.
Ir.R.C.L. Irish Reports, Common Law Series.
Ir.R.Eq. Irish Reports, Equity Series.
Ir.R.Reg.App. Irish Reports, Registration Appeals.
Ir.R.Reg. & L. Irish Reports, Registry and Land
Cases.
Ir.St.Tr. Irish State Trials (Ridgeway's).
Ir.T.R. (or Term Rep.). Irish Term Reports (by Ridge-
way, Lapp & Schoales).
Ired. Iredell's North Carolina Law Reports.
Ired.Eq. Iredell's North Carolina Equity Reports.
Irv. Irvine's Scotch Justiciary Reports.
Irv.Just. Irvine's Justiciary Cases, Eng.
Irwin's Code. Clark, Cobb and Irwin's Code, Ga.
J
Int.Case. Rowe's Interesting Cases, English and Irish.
Int.Com.Commn. Interstate Commerce Commission.
J. Johnson's New York Reports.
J.Air L. Journal of Air Law.
1836

PDF page 1911

JOHNSON'S QUARTO DICT.
Jacob. Jacob's Law Dictionary.
Jagg.Torts. Jaggard, on Torts.
James (N.Sc.). James' Reports, Nova Scotia.
James Sel.Cases. James' Select Cases, Nova Scotia.
James. & Mont. Jameson & Montagu's English Bank-
ruptcy Reports (in vol. 2 Glyn & Jameson).
Jar.Cr.Tr. Jardine's Criminal Trials.
Jarm.Wills. Jarman on Wills.
Jebb (or Jebb C.C.). Jebb's Irish Crown Cases.
Jebb Cr. & Pr.Cas. Jebb's Irish Crown and Present-
ment Cases.
Jebb & B. Jebb & Bourke's Irish Queen's Bench Re-
ports.
Jebb & S. (or Sym.). Jebb & Symes' Irish Queen's
Bench Reports.
Jeff. Jefferson's Virginia Reports.
Jeff.Man. Jefferson's Manual of Parliamentary Law.
Jenk. (or Jenk.Cent.). Jenkins' Eight Centuries of
Reports, English Exchequer,
Jenks, Jenks' Reports, vol. 58 New Hampshire.
Jenn, Jennison's Reports, vols. 14-18 Michigan,
Jeremy, Eq.Jur. Jeremy's Equity Jurisdiction.
Jo.T. Sir T. Jones' Reports.
Jo. & La.T. Jones & La Touche's Irish Chancery Re-
ports.
John. (or Johns.). Johnson's New York Reports;—
Johnson's Reports of Chase's Decisions ;—John-
son's Maryland Chancery Decisions ;—Johnson's
English Vice-Chancellors' Reports ;—Johnson, N.
M.
John.DIct. Johnson's English Dictionary.
John Marshall L.Q. The John Marshall Law Quarter-
ly,
Johns.Cas. Johnson's New York Cases.
Johns.Ch. Johnson's New York Chancery Reports ;—
Johnson's English Vice-Chancellors' Report ;-
Johnson's Maryland Chancery Decisions ;—John-
ston's Reports, New Zealand.
Johns.Ct.Err. Johnson's Reports, New York Court
of Errors.
Johns.Dec. Johnson's Maryland Chancery Decisions.
Joh ns.Eng.Ch. Johnson's English Chancery Reports.
J oh ns.Pat.M an. Johnson's Patent Manual,
Johns.Rep. Johnson's Reports, New York Supreme
Court,
Johns.Tr. Johnson's Impeachment Trial.
Johns.U.S. Johnson's Reports of Chase's United
States Circuit Court Decisions.
Johns.V.C. Johnson's English Vice-Chancellors' Re-
ports.
Johns. & H. (or Johns. & Hem.). Johnson & Hem-
ming's English Chancery Reports.
Johnson. Johnson's Reports, New York ;—Johnson's
English Vice-Chancellors' Reports ;—Johnson's
Maryland Chancery Decisions.
Johnson's Quarto Diet. Johnson's Quarto Dictionary.
J.B.A.DIst.Colum. Journal of the Bar Association of
the District of Columbia.
J.B.A.Kan. Journal of the Bar Association of Kan-
sas.
J.Brldgm. John Bridgman, Eng.
J.C. Johnson's Cases, New York Supreme Court.
J.C.P. Justice of the Common Pleas.
J.Ch. (or J.C.R.). Johnson's New York Chancery Re-
ports.
J. d'01. Les Jugemens d'Oleron.
J.H. Journal of the House.
J.J.Mar. J. J. Marshall's Kentucky Reports.
J.J.Marsh. (Ky.). J. J. Marshall's Kentucky Reports.
J.Kel. Sir John Kelyng's English Crown Cases.
J.Mo.B. Journal of the Missouri Bar.
J.N.A.Referees Bank. Journal of the National Asso-
ciation of Referees in Bankruptcy.
J.P. Justice of the Peace ;—The Justice of the Peace,
London, periodical.
J.P.Sm. (or J.P.SmIth). J. P. Smith's English King's
Bench Reports.
J.Pat.Office Soc. Journal of the Patent Office Society.
J.R. Johnson's New York Reports.
J.Radlo L. Journal of. Radio Law,
J.S.Gr. J. S. Green's New Jersey Reports,
J.Scott. Reporter English Common Bench Reports.
J.Scott, N.S. English Common Bench Reports, New
Series, by John Scott.
J.Soc.Pub.Teach.Law. Journal of the Society of Pub.
Teachers of Law.
J.Voet, Com. ad Panid. Voet (Jan), Commentarius
ad Pandectas.
J. & C. Jones & Carey, Ireland.
J. & H. Johnson & Hemming's English Vice-Chan-
cellors' Reports.
J. & L. (or J. & La T.). Jones & La Touche's Irish
Chancery Reports.
J. & S. Jones & Spencer's New York Superior Court
Reports.
J. & S.Jam. Judah & Swan's Jamaica Reports.
J. & W. Jacob & Walker's English Chancery Reports.
Jac. Jacobus (King James) ;—Jacob's English Chan-
cery Reports ;—Jacob's Law Dictionary,
Jaciaw Diet. Jacob's Law Dictionary.
Jac.Sea Laws. Jacobsen's Law of the Sea.
Jac. & W. (or Walk.). Jacob & Walker's English
Chancery Reports.
Jack. & G.Landi. & Ten. Jackson & Gross, Treatise
on the Law of Landlord and Tenant in Pennsyl-
vania.
Jackson, Jackson's Reports, vols. 43-66 Georgia ;—
Jackson's Reports, vols. 1-29 Texas Court of
Appeals.
Jackson & LumpkIn. Jackson & Lumpkin's Georgia
Reports.
1837

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JOHNST. (N.Z.).
Johnst. (N.Z.). Johnston's Reports, New Zealand.
Jon.Exch. (or Joni r.Exch.). Jones' Irish Exchequer
Reports.
Jon. & Car. Jones & Cary's Irish Exchequer Reports.
Jon. & L. Jones & La Touche's Irish Chancery Re-
ports.
Jones. Jones' Reports, vols. 43-48, 52-57, 61, 62 Ala-
bama ;—Jones' Reports, vols. 12 Pennsylvania ;
—Jones' Reports, vols. 22-31 Missouri ;—Jones'
Law or Equity Reports, North Carolina ;—Jones'
Irish Exchequer Reports ;—Jones' Upper Canada
Common Pleas Reports ;—Jones & Spencer's New
York Superior Court Reports.
Jones (Pa.). Jones Reports, vols. 11, 12 Pennsylvania.
Jones I. Sir William Jones' English King's Bench
Reports.
Jones 2. Sir Thomas Jones' English King's Bench
Reports.
Jones, Bailm. Jones' Law of Bailments.
Jones, Barclay & Whittelsey. Jones, Barclay, & Whit-
telsey's Reports, vol. 31 Missouri.
Jones, Chat.Mortg. Jones on Chattel Mortgages.
Jones, Easem. Jones' Treatise on Easements.
Jones Eq. Jones' North Carolina Equity Reports.
Jones Exch. Jones Exchequer, Ireland.
Jones, French Bar. Jones' History of the French Bar.
Jones Ir. Jones' Irish Exchequer Reports.
Jones Law (or Jones N.C.). Jones' North Carolina
Law Reports.
Jones, Liens. Jones on Liens.
Jones, Mortg. Jones on Mortgages.
Jones, Pledges. Jones on Pledges and Collateral Se-
curities.
Jones, Securities. Jones on Railroad Securities.
Jones T. Sir Thomas Jones' English King's Bench
Reports.
Jones U.C. Jones' Reports, Upper Canada.
Jones W. Sir William Jones' English King's Bench
Reports.
Jones & C. Jones & Cary's Irish Exchequer Reports.
Jones & La T. Jones & La Touche's Irish Chancery
Reports.
Jones & McM. (Pa.). Jones & McMurtrie's Pennsyl-
vania Supreme Court Reports.
Jones & S. (or Jones & Spen.). Jones & Spencer's New
York Superior Court Reports.
Jones & V.L'aws. Jones and Varick's Laws, N.Y.
Josephs. Josephs' Reports, vol. 21 Nevada.
Jour.Am.Jud.Soc. Journal of the American Judica-
ture Society.
Jour.Comp.Leg. Journal of the Society of Compara-
tive Legislation.
Jour.Conat.Law. Journal of Conational Law.
Jour.Crim.L. Journal of Criminal Law and Crimin-
ology.
Jour.Juris. Journal of Jurisprudence.
Jour.Law. Journal of Law.
Jour.Ps.Med. Journal of Psychological Medicine and
Medical Jurisprudence.
Joyce, Ins. Joyce on Insurance.
Jud.Repos. Judicial Repository, N.Y.
Jud. & Sw. Judah & Swan's Reports, Jamaica.
Judd. Judd's Reports, vol. 4 Hawaii.
Jur. The Jurist, London.
Jur. (N.S.). The Jurist (New Series) Reports in all
the Courts, London.
Jur. (N.S.) Ex. Jurist (New Series) Exchequer.
Jurid.Rev. Juridical Review.
Just. (or Just.L.R.). Justices' Law Reporter, Pa.
Just.Dig. Digest of Justinian, 50 books. Never trans-
lated into English.
Just.I nst. Justinian's Institutes. See note follow-
ing "Inst. 1, 2, 31."
Juta. Juta's Cape of Good Hope Reports.
K. Keyes' New York Court of Appeals Reports ;—
Kenyon's English King's Bench Reports ;—Kansas
(see Kan.).
K.B. King's Bench Reports.
[1901] K.B. Law Reports, King's Bench Division,
from 1901 onward.
1917 K.B. Law Reports, 1917, King's Bench, Eng.
K.C.R. Reports in the time of Chancellor King.
K. & F.N.S.W. Knox & Fitzhardinge's New South
Wales Reports.
K. & G. Keane & Grant, Eng.
K. & G.R.C. Keane & Grant's English Registration
Appeal Cases.
K. & J. Kay & Johnston's English Vice-Chancellors'
Reports.
K. & 0. Knapp & Ombler's English Election Cases.
K. & R. Kent and Radcliff's Law of New York, Revi-
sion of 1801.
Kam. Kames' Decisions of the Scottish Court of Ses-
sion.
Kam.Rem.Dec. Kames' Remarkable Decisions, Scotch
Court of Session.
Kam.Sel.Dec. Kames' Select Decisions, Scotch Court
of Session.
Karnes Dec. Karnes' Decisions, Scotland.
Karnes Elucid. Karnes' Elucidation, Scotland.
Karnes, Eq. Karnes' Principles of Equity.
Kames Rem.Dec. Karnes' Remarkable Decisions, Scot-
land.
Karnes Sel.Dec. Kames' Select Decisions, Scotland.
Kan. (or Kans.). Kansas ;—Kansas Reports.
Kan.C.L.Rep. Kansas City Law Reporter.
Kan.City L.Rev. Kansas City Law Review.
Kan.Jud.Council Bull. Kansas Judicial Council Bul
letin.
1838

PDF page 1913

KY.ST.LAW.
Kerr. Kerr's New Brunswick Reports ;—Kerr's Re-
ports ;—J. M. Kerr's Reports, vols. 27-29 New
York Civil Procedure.
Kerr, In]. Kerr on Injunctions.
Kerr (N.B.). Kerr's New Brunswick Reports.
Kerr, Rec. Kerr on Receivers.
I(erse. Kerse's Manuscript Decisions, Scotch Court
of Session.
Kersey, Diet. John Kersey's English Dictionary, 1708.
Key. (or Keyes). Keyes' New York Court of Appeals
Reports.
I(eyl. Keilwey's (or Keylway's) English King's Bench
Reports.
Kn. Kilkerran's Decisions, Scotch Court of Session.
King. King's Reports, vols. 5, 6 Louisiana Annual.
I(ing.Cas. temp. Select Cases tempore King, English
Chancery.
King's Gonf.Ca. (or King's .Con.Cs.). King's Conflict-
ing Cases (Texas).
Kinney, Law Diet. & Glos. Kinney's Law Dictionary
and Glossary.
Kir. (Kirb. or Kirby). Kirby's Connecticut Reports.
Kitch. (or Kitch.Courts). Kitchin on Jurisdictions of
Courts-Leet, Courts-Baron, etc.
Kitchin. Kitchin on Jurisdictions of Courts-Leet,
Courts-Baron, etc.
Kn. (or Kn.A.C.). Knapp's Appeal Cases (English
Privy Council).
Kn.N.S.W. Knox, New South Wales Reports.
4, 5  Kn. & Moo. Knapp & Moore's Reports, vol. 3 Knapp's
Privy Council.
Kn. & 0. Knapp & Ombler's English Election Re-
ports.
Knapp. Knapp's Privy Council Reports, England.
Knapp & 0. Knapp & Ombler, Eng.
Knight, Mech.Dict. Knight's American Mechanical
Dictionary.
Knowles. Knowles' Reports, vol. 3 Rhode Island.
Knox. Knox, New South Wales Reports.
Knox & F. (or Knox & Fitz.). Knox & Fitzhardinge, N.
S.Wales.
Kolze. Transvaal Reports by Kolze.
Kreider. Kreider's Reports, vols. 1-21 Washington.
Kress. Kress' Reports, vols. 166-194 Pennsylvania ;-
Kress' Pennsylvania Superior Court.
Kulp. Kulp's Luzerne Legal Register Reports, Penn-
sylvania.
Ky. Kentucky ;—Kentucky Reports.
Ky.Dec. Sneed's Kentucky Decisions.
Ky.L.J. Kentucky Law Journal.
Ky.L.R. (or I(y.Law Rep.). Kentucky Law Reporter.
I(y.Op. Kentucky Opinions.
Ky.S.B.J. Kentucky State Bar Journal.
Ky.St.Law. Morehead and Brown Digest of Statute
Laws, Ky.
Kent, Corn. (or Comm.). Kent's Commentaries on
American Law.
Kent & R.St. Kent and Radcliff's Law of New York,
Revision of 1801.
Keny. Kenyon's English King's Bench Reports.
Keny.C.H. (or 3 Keny.). Chancery Reports at the enu
of 2 Kenyon.
Kern. Kern's Reports, vols. 100-116 Indiana ;—Ker-
nan's Reports, vols. 11-14 New York Court of Ap-
peals.
Kan.L.J. Kansas Law Journal.
Ka n.Law. Kansas Lawyer.
I(an.St.L.J. Kansas State Law Journal.
Kans.App. Kansas Appeals Reports.
Kay. Kay's English Vice-Chancellors' Reports.
Kay & J. (or Kay & Johns.). Kay and Johnson's Eng-
lish Vice Chancellors' Reports.
Ke. Keen's English Rolls Court Reports.
Keane & Gr. Keane & Grant's English Registration
Appeal Cases.
I(eb. (or KW.). Keble's English King's Bench Re-
ports.
Keen (or Keen, Ch.). Keen's English Rolls Court Re-
ports.
Keener, Quasi Contr. Keener's Cases on Quasi Con-
tracts.
Keil. (or Keilw. or Keilway). Keilway's English
King's Bench Reports.
Kel. Sir John Kelyng's English Crown Cases.
Kel. I. Sir John Kelyng's English Crown Cases.
Kel. 2. William Kelynge's English Chancery Reports.
Kel.Ga. Kelly's Reports, vols. 1-3 Georgia.
I(eI.J. Sir John Kelyng's English Crown Cases.
I(el.W. Wm. Kelynge's English Chancery Reports.
Kelham. Kelham's Norman French Law Dictionary.
Kellen. Kellen's Reports, vols. 146-155 Massachu-
setts.
Kelly. Kelly's Reports, vols. 1-3 Georgia.
Kelly & Cobb. Kelly & Cobb's Reports, vols.
Georgia.
Kelyng, J. Kelyng's English Crown Cases.
Kelynge, W. Kelynge's English Chancery Reports.
Kemble, Sax. Kemble, The Saxons in England.
Ken. Kentucky (see Ky.);—Kenyon English King's
Bench Reports.
Ken.Dec. Kentucky Decisions, by Sneed.
Ken.L.Rep. Kentucky Law Reporter.
1(enan. Kenan's Reports, vols. 76-91 North Carolina.
Ken n.Par.Antiq. Kennett, Parochial Antiquities.
Ken nett. Kennett's Glossary ;—Kennett upon Im-
propriations.
Kennett, Gloss. Kennett's Glossary.
Kent. Kent's Commentaries on American Law.
1839

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KYD•
Kyd. Kyd on Bills of Exchange.
Kyd, Corp. Kyd on Corporations.
LL. Lansing's Supreme Court Reports, New York.
L.A. Lawyers' Reports Annotated.
L.C. Lord Chancellor ;—Lower Canada ;—Leading
Cases.
L.C.B. Lord Chief Baron.
L.C.D. Lower Court Decisions, Ohio.
L.C.Eq. White & Tudor's Leading Cases in Equity.
L.C.G. Lower Courts Gazette, Toronto.
L.C.J ur. Lower Canada Jurist.
L.C.L.J. Lower Canada Law Journal.
L.C.R. Lower Canada Reports.
L.C.Rep.S.Qu. Lower Canada Reports Seignorial
Questions.
L.D. Law Dictionary.
L.D. (or Dec.). Land Office Decisions, United States.
L.Ed. Lawyers' Edition Supreme Court Reports.
L.G. Law Glossary.
L.I. Legal Intelligencer, Pa.
L.J. Law Journal.
L.J.Adm. Law Journal Admiralty, New Series, Eng.
L.J.App. Law Journal, New Series, Appeals.
L.J.Bank. (or L.J.Bankr.). Law Journal Bankruptcy,
New Series, Eng.
L.J.Bk. Law Journal, New Series, Bankruptcy (1831
onward).
L.J.C.C.R. Law Journal, New Series, Crown Cases
Reserved.
L.J.C.P. (or L.J.C.P.D.). Law Journal, New Series,
Common Pleas Decisions.
L.J.C.P.O.S. Law Journal Common Pleas, Old Series,
Eng.
L.J.Ch. Law Journal, New Series, Chancery Division
(1831 on).
L.J.Ch. (0.S.). Law Journal, Old Series, 1822, 1831.
L.J.D. & M. Law Journal, New Series, Divorce and
Matrimonial.
L.J.Ecc. Law Journal Reports, Ecclesiastical (1831
on).
L.J.EccI. Law Journal Ecclesiastical, New Series,
En
L.J.Ex. Law Journal, New Series, Exchequer Divi-
sion (1831 on).
L.J.Exch. Law Journal, New Series, Exchequer.
L.J.Exch.O.S. Law Journal Exchequer, Old Series,
Eng.
L.J.H.L. Law Journal, New Series, House of Lords.
L.J.K.B. Law Journal, King's Bench.
L.J.K.B.O.S. Law Journal King's Bench, Old Series,
Eng.
L.J.L.C. Law Journal, Lower Canada.
L.J.L.T. Law Journal, Law Tracts.
L.J.M.C. (or L.J.M.Cas.). Law Journal, New Series,
Divorce and Matrimonial ;—Law Journal, Mag-
istrates' Cases.
L.J.M.C.O.S. Law Journal Magistrate Cases, Old
Series, Eng.
L.J.M.P.A. Law Journal, Matrimonial, Probate and
Admiralty.
L.J.M. & W. Morgan & Williams' Law Journal, Lon-
don.
L.J.N.C. Law Journal, Notes of Cases.
L.J.N.S. The Law Journal, New Series, London (1831
onwards).
L.J.O.S. The Law Journal, Old Series, London
(1822-1831).
L.J.P. (or P.C.). Law Journal, New Series, Privy
Council ;—Law Journal, Probate, Divorce and Ad-
miralty.
L.J.P. (D. & A.). Law Journal, New Series, Probate,
Divorce and Admiralty.
L.J.P.D. & Adm. Law Journal Probate Divorce & Ad-
miralty, New Series, Eng.
L.J.P. & M. (or L.J.Prob. & Mat.). Law Journal, New
Series, Probate and Matrimonial (1831 onward).
L.J.Prob.N.S. Law Journal Probate, Divorce and Ad-
miralty Reports, N.Y.
L.J.Q.B. Law Journal, New Series, Queen's Bench
(1831 on).
L.J.Q.B.D. Law Journal, New Series, Queen's Bench
Division.
L.J.Rep. Law Journal Reports.
L.J.Rep.N.S. Law Journal Reports, New Series (1831
onward).
L.J. (U.C.). Law Journal, Upper Canada.
L.M. & P. Lowndes, Maxwell & Pollock's English Bail
Court Reports.
L.N. Liber Niger, or the Black Book.
L.P.R. Lilly's Practical Register.
L.R. Law Reports (English) ;—Law Reporter (Law
Times Reports, New Series) ;—(Irish) Law Re-
corder ;—Louisiana Reports.
L.R.A. Lawyers' Reports, Annotated.
L.R.A.1915A. Lawyers' Reports Annotated 1915A, et
seq.
L.R.A. (N.S.). Lawyers' Reports Annotated, New
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L.R.A. & E. English Law Reports, Admiralty and Ec-
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L.R.App. (or L.R.App.Cas.). English Law Reports, Ap-
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L.R.Burm. Law Reports, British Burmah.
L.R.C.C. English Law Reports, Crown Cases Reserv-
ed (1866-1875).
L.R.C.P. English Law Reports, Common Pleas (1866-
1875).
L.R.C.P.D. English Law Reports, Common Pleas Divi-
sion.
g.
1840

PDF page 1915

LAW BULL.
L. & W. Lloyd & Welsby's English Mercantile Cases.
La. Louisiana ;—Louisiana Reports ;—Lane's English
Exchequer Reports.
La.A. (Orleans). Court of Appeal, Parish of Orleans.
La.Ann. (or La.An.). Louisiana Annual Reports ;—
Lawyers' Reports. Annotated.
La.App. Louisiana Court of Appeals ;—Louisiana Ap-
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La.L.J. Louisiana Law Journal, Schmidt's.
La.Law Review. Louisiana Law Review.
La.T.R. Louisiana Term Reports, vols. 3-12 Martin,
Louisiana.
La Them.L.C. La TMmis (Periodical) Lower Canada.
Lab. Labatt's California District Court Reports.
Lab.Rel.Rep. Labor Relations Reporter.
Lacey Dig. Lacey's Digest Railway Decisions.
Lack.Bar. Lackawanna Bar, Pa.
Lack.Bar.R. Lackawanna Bar Reporter, Pa.
Lack.Jur. Lackawanna Jurist, Pa.
Lack.L.N. (or Lack.Leg.N.). Lackawanna Legal News,
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Lack.L.R. (or Lack.Leg.Rec.). Lackawanna Legal
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Ladd. Ladd's Reports, vols. 59-64 New Hampshire.
Lalor. Lalor's Supplement to Hill & Denio's New
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Later, Pol.Econ. Lalor, Cyclop pedia of Political Sci-
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Lalor, Supp. Lalor's Supplement to Hill & Denio's
Reports, N. Y.
Lamar. Lamar's Reports, vols. 25-40 Florida.
Lamb. Lamb's Reports, vols. 103-105 Wisconsin.
Lamb.Arch. Lambard's Archaionomia.
Lamb.Const. Lambard, Duties of Constables, etc.
Lamb.Eir. Lambard's Eirenarcha.
Lanc.Bar. Lancaster Bar, Pa.
Lanc.Law Rev. Lancaster Law Review.
Lanc.Rev. Lancaster Review, Pa.
Land Com.Rep. Land Commissioners Reports, Ire-
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Land Dec. Land Decisions, U.S.
Lane. Lane's English Exchequer Reports.
Langd.Cont. Langdell's Cases on Contracts ;-
Lang-dell's Summary of the Law of Contracts.
Lans. Lansing's New York Supreme Court Reports.
Lans.Ch. Lansing's Chancery Decisions, New York.
Las Partidas. Las Sicte Partidas.
Latch. Latch's English King's Bench Reports.
Lath. Lathrop's Reports, vols. 115-145 Massachusetts.
Lauder. (Lauder of) Fountainhall's Scotch Session
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Laur.H.C.Ca. Lauren's High Court Cases (Kimber-
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Law Bull. Law Bulletin, San Francisco.
1841
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L.R.Ch.D. (or Div.). Law Reports, Chancery Division,
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L.R.E. & I.App. English Reports, English and Irish
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L.R.Eq. English Law Reports, Equity (1866-1875).
L.R.Ex. (or L.R.Exch. or L.R.Ex.Cas.). English Law
Reports, Exchequer (1866-1875).
L.R.Ex.Div. English Law Reports, Exchequer Divi-
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L.R.H.L. English Law Reports, House of Lords, Eng-
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L.R.H.L.Sc. English Law Reports, House of Lords,
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L.R.I r. Law Reports, Ireland (1879-1893).
L.R.Misc.D. Law Reports, Miscellaneous Division.
L.R.N.S. Irish Law Recorder, New Series.
L.R.N.S.W. Law Reports, New South Wales.
L.R.P.C. English Law Reports, Privy Council, Appeal
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L.R.P.Div. (or L.R.Prob.Div.). English Law Reports,
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L.R.Q.B.Di v. English Law Reports, Queen's Bench
Division.
L.R.S.A. Law Reports, South Australia.
L.R.Sc. & D. English Law Reports, Scotch and Di-
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L.R.Sess.Cas. English Law Reports, Sessions Cases.
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L.T.O.S. Law Times, Old Series.
L.T.Rep.N.S. Law Times Reports, New Series, Eng.
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L. & C. (or L. & C.C.C.). Leigh & Cave's English Crown
Cases, Reserved.
L. & E. English Law and Equity Reports.
L. & E.Rep. Law and Equity Reporter New York.
L. & G.t.Plunk. Lloyd & Gould's Irish Chancery Re-
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L. & G.t.Sug. Lloyd & Gould's Irish Chancery Re-
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L. & M. Lowndes & Maxwell's English Practice Cases.
L. & T. Longfield & Townsend's Irish Exchequer Re-
ports.
Black's Law Dictionary Revised 4th Ed.-116

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LAW EX.J.
Law Ex.J. Law Examination Journal (London).
Law.Guild Rev. Lawyers Guild Review.
Law J.Ch. Law Journal, New Series, Chancery.
Law J.Exch. Law Journal, New Series, Exchequer.
Law J.I.B. Law Journal, New Series, English Queen's
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Law J.P.D. Law Journal, Probate Division.
Law J.R., Q.B. (or Law J.Q.B.). Law Journal, New
Series, Queen's Bench, Eng.
Law Lib. Law Library, Philadelphia.
Law Lib.J. Law Library Journal.
Law Mag. & Rev. Law Magazine and Review.
Law Notes. Law Notes.
Law of Trusts, Tiff. & Bul. Tiffany and Bullar l on
Trusts and Trustees.
Law Q.Rev. Law Quarterly Review.
Law Rep. Monthly Law Reporter, Boston, Mass.
Law Rep.A. & E. Law Reports, Admiralty and Ec-
clesiastical.
Law Rep.App.Cas. Law Reports, Appeal Cases.
Law Rep.C.C. Law Reports, Crown Cases.
Law Rep.C.P. Law Reports, Common Pleas.
Law Rep.C.P.D. Law Reports, Common Pleas Divi-
sion.
Law Rep.Ch. Law Reports, Chancery Appeal Cases.
Law Rep.Ch.D. Law Reports, Chancery Division.
Law Rep.Eq. Law Reports, Equity Cases.
Law Rep.Ex. Law Reports, Exchequer.
Law Rep.Ex.D. Law Reports, Exchequer Division.
Law Rep.H.L. Law Reports, House of Lords, English
and Irish Appeal Cases.
Law Rep.H.L.Sc. Law Reports, Scotch and Divorce
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Law . Rep.Ind.App. Law Reports, Indian Appeals.
Law Rep.Ir. Law Reports, Irish.
Law Rep.MIsc.D. Law Reports, Miscellaneous Divi-
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Law Rep.N.S. Law Reports, New Series, N.Y.
Law Rep.P.C. Law Reports, Privy Council, Appeal
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Law Repos. Carolina Law Repository, North Caro-
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Law Soc.J. Law Society Journal.
Law Stud.H. Law Students' Helper.
Law Stud.Mag.N.S. Law Students Magazine, New
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Law T., N.S. English Law Times Reports, New
Series.
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Lawes, Pl. Lawes on Pleading.
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Lawrence Com p.Dec. Lawrence's First Comptroller's
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Lawson, Exp.Ev. Lawson on Expert and Opinion Evi-
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Lawson, Pres.Ev. Lawson on Presumptive Evidence.
Lawson, Rights, Rem. & Pr. Lawson on Rights, Rem-
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Lawson, Usages & Cust. Lawson on the Law of Us-
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Lawy.Rev. The Lawyers' Review, Seattle, Wash.
Ld.Ken. Lord Kenyon's English King's Bench Re-
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Ld.Raym. Lord Raymond's English King's Bench Re-
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Le Mar. Le Marchant's Gardner Peerage Case.
Lea. Lea's Tennessee Reports ;-Leach.
Leaoh. Leach's English Crown Cases.
Leach C.L. Leach, Cases in Crown Law.
Leach CI.Cas. Leach's Club Cases, London.
Leach, Cr.Cas. Leach's English Crown Cases.
Lead.Cas.Am. American Leading Cases, by Hare &
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Lead.Cas.Eq. Leading Cases in Equity, by White &
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Leake. Leake on Contracts ;-Leake's Digest of the
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Leake, Cont. Leake on Contracts.
Learn. & Spic. Learning and Spicer's Laws, Grants,
Concessions and Original Constitutions, N.J.
Lebanon. Lebanon County Law Journal, Pa.
Leg.EI.Dr.Civ.Rom. Lecons Eldmentaries du Droit
Civil Romain.
Lee. Lee's English Ecclesiastical Reports ;-Lee's Re-
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Lee, Dict. Lee's Dictionary of Practice.
Lee Eocl. Lee's Ecclesiastical, Eng.
Lee G. Sir George Lee's English Ecclesiastical Re-
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Lee t.Hardw. Lee tempore Hardwicker Eng.
Leese. Leese's Reports, vol. 26 Nebraska.
Lef.Dec. Lefevre's Parliamentary Decisions, report-
ed by Bourke.
Leg.Canut. Leges Canuti (laws of King Canute or
Knut.)
1842

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LOW.CAN.SEIGN.
Leg.Alfred. Leges Alfredi (laws of King Alfred.)
Leg.Edm. Leges Edmundi (laws of King Edmund.)
Leg.Ethel. Leges Ethelredi.
Leg.H.I. Laws of [King] Henry the First.
Leg.Gaz. (or Leg.Gaz.R. [Pa.]). Legal Gazette Re-
ports, Pennsylvania.
Leg.Op. Legal Opinion, Pa.
Leg.Rec. Legal Record Reports, Pa.
Leg. & I ns.Rep. Legal and Insurance Reports (Pa.).
Legg. Leggett's Reports, Sind, India.
Legge. Legge's Supreme Court Cases, New South
Wales.
Leh.L.J. Lehigh County Law Journal, Pa.
Lehigh. Lehigh Valley Law Reporter, Pa.
Leigh. Leigh's Virginia Reports.
Leigh & C. Leigh & Cave's English Crown Cases.
Leo. (or Leon.). Leonard's English King's Bench Re-
ports.
Lest.P.L. Lester's Decisions in Public Land Cases.
Lester. Lester's Reports, vols. 31-33 Georgia.
Lester Supp. (or Lest. & But.). Lester & Butler's Sup-
plement to Lester's Georgia Reports.
Lev. Levinz's English King's Bench Reports.
Lew. Lewin's English Crown Cases Reserved ,—Lew-
is, Missouri ;—Lewis, Nevada.
Lew.C.C. Lewin's English Crown Cases.
Lew.C.L. Lewis' Criminal Law.
Lew.L.Cas. Lewis Leading Cases on Public Land
Law.
Lewis. Lewis' Reports, vols. 29-35 Missouri Appeals ;
—Lewis' Reports, vol. 1 Nevada ;—Lewis' Ken-
tucky Law Reporter.
Lewis, Perp. Lewis on the Law of Perpetuity.
Lex.Ju rid. Calvinus, Lexicon Juridicum Juris Csari
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Lex Salic. Lex Salica.
Ley. Ley's English King's Bench Reports.
Lib. Liber (book) ;—Library.
Lib.Ass. Liber Assisarum (Year Books, Part V).
Lib.L. & Eq. Library of Law and Equity.
Li b.Reg. Register Books.
Liberian L. Liberian Law.
Lieb.Herm. Lieber's Hermeneutics.
Lieber Civ.Lib. Lieber on Civil Liberty and Self Gov-
ernment.
Life and Acc.I ns.R. Bigelow's Life and Accident In-
surance Reports.
Lil. Lilly's English Assize Reports.
L I.Abr. Lilly's Abridgment.
LII.Conv. Lilly's Conveyancer.
Lil.Reg. Lilly's Practical Register.
Lilly, Abr. Lilly's Abridgment, or Practical Register.
Lincoln L.Rev. Lincoln Law Review.
Lindl.Copartn. Lindley on Partnership.
Li ndl.Partn. Lindley on Partnerships.
Linn Ind. Linn's Index of Pennsylvania Reports.
Linn, Laws Prov.Pa. Linn on the Laws of the Prov-
ince of Pennsylvania.
Lit. (or Litt.). Littell's Kentucky Reports ;—Little-
ton's English Common Pleas Reports ;—Coke on
Littleton.
Lit. (or Litt.) SeI.Ca. Littell's Select Kentucky Cases.
Lit. & BI.Dig. Littleton & Blatchley's Insurance Di-
gest.
Litt.Ten. Littleton's Tenures.
Littell. Littell's Kentucky Reports.
Littleton. Littleton's English Common Pleas and Ex-
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Liverm.Ag. Livermore on Principal and Agent.
Liz.Sc.Exch. Lizars' Exchequer Cases, Scotch.
LI. & G.t.P. (or LI. & G.t.PI.). Lloyd & Goold's Irish
Chancery Reports temp. Plunkett.
LI. & G.t.S. Lloyd & Goold's Irish Chancery Reports
tempore Sugden.
LI. & W. (or Lloyd & W.). Lloyd & Welsby's English
Mercantile Cases.
Loc.Acts. Local Acts.
Loc.Code. Local Code.
Loc.Ct.Gaz. Local Courts and Municipal Gazette,
Toronto.
Loc.Gov. Local Government, Eng.
Loe.Laws. Local Laws.
Locc. de Jur.Mar. Loccenius, De Jure Maritimo et
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Lock.Rev.Ca. Lockwood's New York Reversed Cases.
Locus Standi. Locus Standi Reports, English.
Lofft. Lofft's English King's Bench Reports.
Lofft, Append. Lofft's Maxims, appended to Lofft's
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Lom.C.H.Rep. Lomas's City Hall Reporter, N.Y.
Lom.Dig. Lomax's Digest of Real Property.
Lomax, Ex'rs. Lomax on Executors.
Lond. London Encyclopedia.
London L.Mag. London Law Magazine.
Long, I rr. Long on Irrigation.
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Longf. & T. (or Long. & Town.). Longfield & Town-
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Lor. & Russ. Loring & Russell's Election Cases, Mass.
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Lou. (or Louis.). Louisiana (see La.).
Low. (or Low.Dis.). Lowell's United States District
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Low.Can. (or Can.R.). Lower Canada Reports.
Low.Can.Seign. Lower Canada Seignorial Reports.
1843

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LOWELL
Lowell. Lowell's United States District Court Re-
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Lower Ct.Dec. Lower Court Decisions, Ohio.
Lown.Leg. Lowndes on Legacies.
Lown. & M. Lowndes & Maxwell's English Bail Court
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Lud.El.Cas. Luder's English Election Cases.
Ludden. Ludden's Reports, vols. 43,44 Maine.
Lum.P.L.Cas. Lumley's Poor Law Cases.
Lumpkln. Lumpkin's Reports, vols. 59-77 Georgia.
Lush. (or Lush.Adm.). Lushington's English Admiral-
ty Reports.
Lush Pr. Lush's Common Law Practice.
Lut. Lutwyche's English Common Pleas Reports.
Lut.Elec.Cas. Lutwyche's Election Cases, England.
Lut.R.C. Lutwyche's English Registration Appeal
Cases.
Lutw.E. Lutwyche's English Common Pleas Reports.
Lutw.Reg.Cas. Lutwyche's Registration Cases, Eng.
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Luz.L.O. (or Luz.Leg.Obs.). Luzerne Legal Observer,
Pa.
Luz.L.R. (or Luz.Leg.Reg.). Luzerne Legal Register,
Pa.
Luz.L.Reg.Rep. Luzerne Legal Register Reports (Con-
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Luz.L.T. (N.S.). Luzerne Law Times, New Series, Pa.
Luz.L.T. (O.S.) Luzerne Law Times, Old Series, Pa.
Luz.Law Luzerne Law Times, Pa,
Lynd.Prov. Lyndwood's Provinciales.
MM. Massachusetts ;—Maryland ;—Maine ;—Michigan ;
— Minnesota  ;— Missouri ;— Mon-
tana.
M.A. Missouri Appeals.
M.C.C. Moody's English Crown Cases, Reserved.
M.C.L.A. Michigan Compiled LIM'S Annotated.
M.D. & D. (or De G.). Montagu, Deacon & Dc Gex's
•nglish Bankruptcy Reports.
M.G.L.A. Massachusetts General Laws Annotated.
M.G. & S. Manning, Granger, & Scott's English Co►-
mon Pleas Reports.
M.P.C. Moore's English Privy Council Cases.
M .R.S.A. Maine Revised Statutes Annotated.
M.S.A. Minnesota Statutes Annotated.
M. & A. Montagu & Ayrto►'s English Bankruptcy Re-
ports.
M. & B. Montagu & Bligh's English Bankruptcy Re.
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M. & C. Mylne & Craig's English Chancery Reports;
—Montagu & Chitty's English Bankruptcy Re-
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M. & C.PartIdas. Moreau-Lislet and Carleton's Laws
of Las Siête Partidas in force in Louisiana.
M. &'Cht.Bankr. Montagu & Chitty's English Bank-
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M. & G. Manning & Granger's English Common 'Pleas
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Reports, vol. 6 Maddock's Reports.
M. & Gel. Maddock & Geldart's English Chancery Re-
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M. & Gord. Macnaghten & Gordon's English Chancery
Reports.
M. & H. Murphy & Hurlstone's English Exchequer
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M. & K. Mylne & Keen's English Chancery Reports.
M. & M. Moody & Malkin's English Nisi Prius Re-
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M. & McA. Montagu & McArthur's English Bankrupt-
cy Reports.
M. & P. Moore & Payne's English Common Pleas Re-
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M. & R. Manning & Ryland's English King's Bench
Reports ;—Moody & Robinson's English Nisi Prius
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M. & R.M.C. Manning & Ryland's English Magistrate
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M. & Rob. Moody & Robinson, Eng.
M. & S. Maule & Selwyn's English King's Bench Re-
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M. & W. Meeson & Welsby's English Exchequer Re-
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M. & Y. Martin & Yerger's Tennessee Reports.
Mac. See also Mc.
Mac. Macnaghten's English Chancery Reports.
Mac.N.Z. Macassey's New Zealand Reports.
Mac.Pat.Cas. Macrory's Patent Cases.
Mac. & G. Macnaghten & Gordon's English Chancery
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Mac. & Rob. Maclean & Robinson's Scotch Appeal
Cases.
MacAr. (or MacArth., MacArthur). MacArthur's Dis-
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Cases.
MacAr.Pat.Cas. MacArthur's Patent Cases.
MacAr. & M. MacArthur & Mackey's District of Col-
umbia Reports.
Maoas. Macassey's Reports, New Zealand.
Macaulay, HIst.Eng. Macaulay's History of England.
Macc.Cas. Maccala's Breach of Promise Cases.
Maccl. Macclesfield's Reports, 10 Modern Reports.
Maocl.Tr. Macclesfield's Trial (Impeachment), Lon-
don, 1725.
Maod.Jam. Macdougall's Jamaica Reports.
Mac/. (or Macfar. or MacFarl.). Macfarlane's Reports,
Jury Courts, Scotland.
1844

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MANW. (OR MANW.FOR.LAWS).
MackeId. Mackeldey on Modern Civil Law ;—Mack-
eldey on Roman Law.
Mackeld.C1v11 Law. Mackeldey on Modern Civil Law.
Mackeld.Rom.Law. Mackeldey on Roman Law.
Mackey. Mackey's Reports, District of Columbia.
Mael. McLean's United States Circuit Court Reports ;
. —Maclaurin's Scotch Criminal Decisions.
MacI.Dec. Maclaurin's Scotch Criminal Decisions.
Mael.Sh i pp. Maclachlan on Merchant Shipping.
Maci. & R. Maclean & Robinson's Scotch Appeal
Cases.
Macn. Macnaghten's Select Cases in Chancery tempore
King ;—W. H. Macnaghten's Reports, India.
Maim. (Fr.). Sir Francis Macnaghten's Bengal Re-
ports.
Macn.N.A.Beng. Macnaghten's Nizamut Adawlut Re-
ports, Bengal.
Macn.S.D.A.Beng. (W. H.) Macnaghten's Sudder De-
wanny Adawlut Reports, Bengal.
Macn. & G. Macnaghten & Gordon's English Chancery
Reports.
Macph. Macpherson, Lee & Bell's (Third Series)
Scotch Court of session Cases.
Macph.Jud.Com. Macpherson, Practice of the Judicial
Committee of the Privy Council.
Macph.PrIv.Coun. Macpherson's Privy Council Prac-
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Macph.S. & L. Macpherson, Shirreff & Lee, Scotland.
Macq. (or Macq.H.L.Cas.). Macqueen's Scotch Appeal
Cases (House of Lords).
Macr.P.Cas. Macrory's Patent Cases.
Macr. & H. Macrae & Hertslet's Insolvency Cases.
MacSwin.Mines. 114cSwinney, Law of Mines, Quar-
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Mad. Maddock's English Chancery Reports ;—Ma-
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Mad.H.C. Madras High Court Reports.
Mad.S.D.A.R. Madras Sudder Dewanny Adawlut Re-
ports.
M ad.Sel. Dec. Madras Select Decrees.
Mad.Ser. Madras Series (East) India Law Reports.
Mad. & B. Maddox & Bach's Reports, vol. 19 Montana.
Mad. & Gel. Maddock & Geldart's English Chancery
Reports, vol. 6 Maddock's Reports.
Madd. Maddock's English Chancery Reports ;—Mad-
dox's Reports, vols. 9-19 Montana.
Mad d.Ch.Pr. Maddock's Chancery Practice.
Madras L.J. Madras Law Journal.
Mag.Cas. Magistrates' Cases, especially the series
edited by Bittleston, Wise, & Parnell.
Mag.Char. Magna Carta or Charta. See Barring-
ton's Revised Statutes of England, 1870, vol. 1, p.
84, and Coke's Second Institute, vol. 1, first 78
pages.
Mag.Dig. Magrath's South Carolina Digest.
Mag.Rot. Magus Rotulus (the Great Roll of the Ex-
chequer).
Mag. & Con. Magistrate and Constable.
Mag. & M. & P.L. Magistrate and Municipal and Pa-
rochial Lawyer.
Magruder. Magruder's Reports, vols. 1, 2 Maryland.
Maine, Anc.Law. Maine on Ancient Law.
Maine L.Rev. Maine Law Review.
Maine, Popular Govt. Maine, Popular Government.
Maitland. Maitland's Manuscript Scotch Session Cas-
es.
Malloy. Malloy's Irish Chancery Reports.
Malone. Editor, vols. 6, 9, and 10, Heiskell's Tennes-
see Reports.
Man. Manning's Reports (English Court of Revision) ;
—Manitoba ;—Manning's Reports, vol. 1 Michi-
gan ;—Manuscript ;—Manson's English Bankrupt-
cy Cases.
Man.Cas. Manumission Cases in New Jersey, by
Bloomfield.
Man.EI.Cas. Manning's English Election Cases (Court
of Revision).
Man.Exch.Pr. Manning's Exchequer Practice.
Man.Gr. & S. (or Man., G. & S). Manning, Granger,
and Scott's English Common Pleas Reports.
Man.I nt.Law. Manning, Commentaries on the Law
of Nations.
Man.L.J. Manitoba Law Journal.
Man.L.R. Manitoba Law Reports.
Man.t.Wood. Manitoba tempore Wood.
Man.Unrep.Cas. Manning's Unreported Cases, La.
Man. & G. Manning & Granger's English Common
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Man. & Ry. Manning & Ryland's English King's
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Man. & Ry.Mag.Cas. (or Man. & R.). Manning & Ry-
land's English Magistrates' Cases.
Man. & S. Manning & Scott's Reports, vol. 9 Common
Bench.
Manb.Coke. Manby's Abridgment of Coke's Reports.
Manitoba. Armour's Queen's Bench and County Court
Reports tempore Wood, Manitoba ;—Manitoba
Law Reports.
Manning, (or Man.Unrep.Cas.). Manning's Unreported
Cases, Louisiana ;—Manning's Reports, vol. 1
Michigan.
Manning, La. Unreported Cases, Louisiana.
Mans. Mansfield's Reports, vols. 49-52 Arkansas ;-
Manson, English Bankruptcy Cases.
Manson. Manson, Eng.
Manson, Bankr.Cas. Manson's Bankruptcy and Wind-
ing-Up Cases.
Manum.Cases. Manumission Cases, New Jersey
(Bloomfield's).
Man w. (or Manw.For.Laws). Manwood's Forest Laws.
1845

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MAR.
Mar. March's English King's Bench Reports ;— Mar-
shall's United States Circuit Court Reports ;-
Marshall's Kentucky Reports ;—Martin's Louisi-
ana Reports ;—Martin's North Carolina Reports ;
—Marshall's Reports, Bengal ;—Maryland.
Mar.Br. March's Translation of Brooke's New Cases.
Mar.L.C. English Maritime Law Cases (Crockford).
Mar.L.C.N.S. English Maritime Law Cases, New
Series (Aspinall).
Mar.La. Martin's Louisiana Reports.
Mar.N.C. Martin's North Carolina Reports.
Mar.N.S. (or Mart. [N.S.]). Martin's Louisiana Re-
ports, New Series.
Mar.Prov. Maritime Province Reports, Canada.
Mar.R. English Maritime Law Reports.
Mar.Reg. Mitchell's Maritime Register, London.
March. March's Translation of Brooke's New Cases,
King's Bench.
March N.C. March's New Cases, English King's
Bench.
Marine Ct.R. Marine Court Reporter (McAdam's)
New York.
Marks & Sayre. Marks & Sayre's Reports, vol. 108
Alabama.
Marquette L.Rev. Marquette Law Review.
Marr. Marriott's English Admiralty Decisions ;—Mar-
rack's European Assurance Cases.
Marr.Adm. Marriott's Reports, English Admiralty.
Mars. Marsden's English Admiralty Reports.
Marr.Adm. Marsden's Admiralty, Eng.
Marsh. Marshall's United States Circuit Court Deci-
sions ;—Marshall's English Common Pleas Re-
ports ;—Marshall's Bengal Reports ;—Marshall,
Kentucky ;—Marshall's Reports, vol. 4 Utah.
Marsh. (A.K.). A. K. Marshall's Kentucky Reports.
Marsh. (J.J.). J. J. Marshall's Kentucky Reports.
Marsh.Beng. (or Calc.). Marshall's Reports, Bengal.
Marsh.C.P. Marshall's English Common Pleas Re-
ports.
Marsh.Ceylon. Marshall's Ceylon Reports.
Marsh.Dec. Marshall's United States Circuit Court
Decisions (Brockenbrough) ;—Marshall on the Fed-
eral Constitution.
Marsh.Ins. Marshall on Marine Insurance.
Marsh.O.p. Marshall's Constitutional Opinions.
Mart. Martin (see Martin).
Mart. (La.). Martin's Louisiana Reports.
Mart. (N.C.). Martin's North Carolina Reports.
Mart.Cond.La. Martin's Condensed Louisiana Re-
ports.
Mart.Dec. United States Decisions in Martin's North
Carolina Reports.
Martin, Diet. Edward Martin's English Dictionary.
Mart.N.S. (La.). Martin's Louisiana Reports, New
Series.
Mart.O.S. (La.). Martin's Louisiana Reports, Old
Series.
Mart.U.S.C.C. Martin's United States Circuit Court
Reports.
Mart. & Y. (Tenn.). Martin & Yerger's Tennessee Re-
ports.
Mart. & Yerg. Martin & Yerger's Tennessee Reports.
Marth.W.Ca. Martha Washington Case, see United
States v. Cole, 5 McLean, 513, Fed.Cas.No.14,832.
Marti n. Martin's Louisiana Reports ;—Martin's North
Carolina Reports ;—Martin's Reports, vols. 21-30
Georgia ;—Martin's Reports, vols. 54-70 Indiana.
Martin Index. Martin's Index to Virginia Reports.
Marv. Marvel's Reports, Delaware.
M as. (or Mason [U.S.]). Mason's United States Cir-
cuit Court Reports.
Mason's Code. Mason's United States Code Anno-
tated.
Mass. Massachusetts;—Massachusetts Reports.
Mass.Elec.Ca. Massachusetts Election Cases.
Mass.L.Q. Massachusetts Law Quarterly.
Mass.L.R. Massachusetts Law Reporter, Boston.
Massey v. Headford. An Irish Criminal Conversation
Case, 1804. Originally printed in Ireland and re-
printed both in New York and Philadelphia.
Mast. Master's Reports, vols. 25-28 Canada Supreme
Court.
Mat. Mathews.
Mat.Par. (or Paris). Matthew Paris, Historia Minor.
Math.Pres.Ev. Mathews on Presumptive Evidence.
Mathews. Mathews' Reports, vols. 6-9 West Virginia.
Mats. (or Matson). Matson's Reports, vols. 22-24 Con-
necticut.
Matthews. Matthew's Reports, voi. 75 Virginia.
Maude & P.Shipp. Maude & Pollock's Law of Mer-
chant Shipping.
Maude & P.Mer.Shipp. Maude & Pollock's Law of
Merchant Shipping.
Maul. & Sel. (or Maule & S.). Maule & Selwyn's Eng-
lish King's Bench Reports.
Maur.Dec. Mauritius Decisions.
Max.Dig. Maxwell's Nebraska Digest.
Maxw.Adv.Gram. W. H. Maxwell's Advanced Les-
sons in English Grammar.
Maxw.Cr.Proc. Maxwell's Treatise on Criminal Pro-
cedure.
Maxw.l nterp.St. Maxwell on the Interpretation of
Statutes.
May, Ins. May on Insurance.
May, Parl.Law. May's Parliamentary Law.
May, Parl.Pr. May's Parliamentary Practice.
Mayn. Maynard's Reports, Edward II. (Year Books,
Part I).
Mc. See also Mac.
McAdam, Landl. & T. McAdam on Landlord and
Tenant.
1846

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MICH.VAC.
Me. Maine ;—Maine Reports.•
Means. Means' Kansas Reports.
Mechem, Ag. Mechem on Agency.
Mechem, Pub.Off. Mechem on Public Offices and Of-
ficers.
Med.L.J. (or Med.Leg.J.). Medico-Legal Journal, New
York.
Med.L.N. (or Med.Leg.N.). Medico Legal News, New
York.
Med.L.P. Medico Legal Papers, New York.
Medd. Meddaugh's Reports, vol. 13 Michigan.
Mees. & Ros. Meeson & Roscoe's English Exchequer
Reports.
Mees. & W. (or Wels.). Meeson & Welsby's English
Exchequer Reports.
Meg. Megone's Company Case.
Meigs. Meigs' Tennessee Reports.
Meigs, Dig. Meigs' Digest of Decisions of the Courts
of Tennessee.
Melv.Tr. Melville's Trial (Impeachment), London.
Mem. In Scam Memorandum or memoranda in the
Exchequer.
Mem.L.J. Memphis Law Journal, Tennessee.
Memphis L.J. Memphis Law Journal, Tenn.
Menken. Menken's Reports, vol. 30 New York Civil
Procedure Reports.
Menz. (or Menzies Cape of Good Hope.). Menzies'
Reports, Cape of Good Hope.
Mer. Merivale's Chancery Reports.
Mercer, Beasley L.Rev. Mercer, Beasley Law Re-
view.
Mercer L.Rev. Mercer Law Review.
Meriv. Merivale's English Chancery Reports.
Merl.Quest. Merlin, Questions de Droit. .
Merl. Rêpert. Merlin, Repertoire de Jurisprudence.
Met. (or Mete.). Metcalf's Massachusetts Reports ;—
Metcalfe's Kentucky Reports ;—Metcalf's Reports,
vol. 3 Rhode Island.
Metc.Ky. Metcalfe's Kentucky Reports.
Meth.Ch.Ca. Report of Methodist Church Case.
Miami L.Q. Miami Law Quarterly.
Mich. Michigan ;—Michigan Reports ;—Michaelmas.
Mich.C.C.R. Michigan Circuit Court Reporter, Mar-
quette.
Mich.L.J. Michigan Law Journal.
Mich.L.Rev. Michigan Law Review.
Mich.Lawyer. Michigan Lawyer.
Mich.Leg.News. Michigan Legal News.
Mich.N.P. Michigan Nisi Prins Reports.
Mich.Pol.Soc. Michigan Political Science Association.
Mich.S.B.J. Michigan State Bar Journal.
Mich.T. Michaelmas Terms.
Mich.Vac. Michaelmas Vacation.
McAII. (or McAl.) McAllister's United States Circuit
Court Reports.
McBride. McBride's Reports, vol. 1 Missouri.
McCah. McCahon's Reports (United States District
Court for the District of Kansas).
McCahon. McCahon, Kan.
McCar. McCarter's New Jersey Equity Reports ;—
McCarty's New York Civil Procedure Reports.
McCart. McCarter, N.J.
McCarty, CIv.Proc. McCarty's Civil Procedure Re-
ports, N.Y.
McCI. McClelland's English Exchequer Reports.
McCI. & Y. McClelland & Younge's English Exchequer
Reports.
McClain's Code. McClain's Annotated Code and Stat-
utes, Iowa.
McClain, Cr.Law. McClain's Criminal Law.
McClell. McClelland, Eng.
McCIeII. & Y. McClelland & Younge, Eng.
McCook. McCook's Reports, vol. 1 Ohio State.
McCord. McCord's South Carolina Law Reports.
McCord Eq. (or Ch.). McCord's South Carolina Equity
Reports.
McCorkle. McCorkle's Reports, vol. 65 North Caro-
lina.
McCr. (or McCrary). McCrary's United States Cir-
cuit Court Reports.
McCrary, Elect. McCrary's American Law of Elec-
tions.
McCul.Dict. McCullough's Commercial Dictionary.
McCul.Pol.Econ. McCulloch, Political Economy.
McDevitt. McDevitt's Land Commissioner's Reports,
Ireland.
McFar. McFarlane's Reports (Scotch Jury Court).
McGill. McGill's Manuscript Scotch Session Cases.
McGI. (or McGloin). McGloin's Louisiana Reports.
McKelvey, Ev. McKelvey on Evidence.
MeL. (or McLean). McLean's United States Circuit
Court Reports.
MeL. & R. McLean & Robinson's Scotch Appeal Cases.
McM.Com.Dec. McMaster's Commercial Decisions.
MoMul. McMullan's South Carolina Law Reports.
McMul.Eq. McMullan's South Carolina Equity Re-
ports.
McNagh. McNaghten (see Macn.).
McPherson. McPherson, Lee, & Bell's (Third Series)
Scotch Session Cases.
McWillie. McWillie's Reports, vols. 73-76 Mississippi.
Md. Maryland ;—Maryland Reports ;—Harris & Mc-
Henry's Maryland Reports.
Md.Ch. Maryland Chancery Decisions.
Md.L.Rec. Maryland Law Record, Baltimore.
M d.L.Rep. Maryland Law Reporter, Baltimore.
Md.L.Rev. Maryland Law Review.
1847

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MIDDX.SIT.
MIddx.Sit. Sittings for Middlesex at Nisi Prius.
MII. Miles' Pennsylvania Reports ;—Miller (see Mill.).
Mlles. Miles' District Court Reports, City and Coun-
ty of Philadelphia, Pennsylvania.
Mill. Mill's South Carolina Constitutional Reports ;—
Miller's Reports, vols. 1-5 Louisiana ;—Miller's
Reports, vols. 3-18 Maryland ;—Miller's Decisions,
United States.
Mill, Const. (S.C.). Mill's South Carolina Constitu-
tional Reports.
MiII.Dec. Miller's Decisions (Woolworth's Reports)
United States Circuit Court ;—Miller's Decisions
United States Supreme Court.
Mill.La. Miller's Reports, vols. 1-5 Louisiana.
Mill, Log. Mill's Logic.
MiII.Md. Miller's Reports, vols. 3-18 Maryland.
Mill, Pol.Ec. Mill's Political Economy.
Mill. & V.Code. Milliken & Vertrees' Code, Tenn.
Miller. Miller's Reports, vols. 1-5 Louisiana ;—Mill-
er's Reports, vols. 3-18 Maryland.
Miller, Const. Miller on the Constitution of the
United States.
Miller's Code. Miller's Revised and Annotated Code,
Iowa.
Mills. Mills Surrogate, N.Y.
Mills' Ann.St. Mills' Annotated Statutes, Colo.
Mills, Em.Dom. Mills on Eminent Domain.
Milw. Milward's Irish Ecclesiastical Reports.
Min. Minor ;—Minor's Alabama Reports.
Min.Inst. Minor's Institutes Statute Law.
M i n n. Minnesota ;—Minnesota Reports.
Minn.Ct.Rep. Minnesota Court Reporter.
Minn.L.Rev. Minnesota Law Review.
Minn.Law J. Minnesota Law Journal.
Minor. Minor's Alabama Reports ;—Minor's Insti-
tutes.
Minor, I nst. Minor's Institutes of Common and Stat-
ute Law.
Minshew. Minshew (John), "The Guide into the
Tongues also the Exposition of the Terms of the
Laws of this Land." (England.)
Mirr. Horne's Mirror of Justices.
Misc.Laws. Miscellaneous Laws, Or.
Miscel. (or Misc.Rep.). Miscellaneous Reports, N.Y.
Miss. Mississippi ;—Mississippi Reports ;—Missouri.
Miss.Dec. Mississippi Decisions, Jackson.
Miss.L.J. Mississippi Law Journal.
Miss.St.Ca. Mississippi State Cases.
Mister. Mister's Reports, vols. 17-32 Missouri Ap-
peals.
Mitch.M.R. Mitchell's Maritime Register, London.
Mitch.Mod.Geog. Mitchell's Modern Geography.
Mitf.Eq.PI. Mitford on Equity Pleading.
McMul. McMullan, South Carolina.
Mo. Missouri ; — Missouri Reports ;—Moore's English
King's Bench Reports ;—Moore's English Common
Pleas Reports ;—Moore's English Privy Council
Reports ;—Modern Reports, English ;—English
King's Bench, etc., (see Mod.) ;—Monthly ;-
Moore's Indian Appeal Cases.
Mo. (F.). Sir Francis Moore's English King's Bench;
Reports.
Mo. (J.B.). J. B. Moore's English Common Pleas Re-
ports.
Mo.App. Missouri Appeal Reports.
Mo.App.Rep. Missouri Appellate Reporter.
Mo.I.A. Moore's Indian Appeals.
Mo.L.Rev. Missouri Law Review.
Mo.P.C. Moore's English Privy Council Reports.
Mo.St.Ann. Missouri Statutes Annotated.
Mo. & P. Moore & Payne's English Common Pleas
Reports.
Mo. & R. Moody & Robinson's English Nisi Prius Re-
ports.
Mo. & S. Moore & Scott's English Common Pleas Re-
ports.
Moak, Eng.R. Moak's English Reports.
Moak, Underh.Torts. Moak's Edition of Underhill on.
Torts.
Moak & Eng.Rep. Moak's English Reports.
Mob. Mobley's Election Cases.
Mod. Modern Reports, English King's Bench, etc;—
Modified.
Mod.Cas. Modern Cases, vol. 6 Modern Reports.
Mod.Cas.L. & Eq. Modern Cases at Law and Equity,
vols. 8,9 Modern Reports.
Mod.Cas.per Far. (or t.Holt). Modern Cases tern pore
Holt, by Farresley, vol. 7 Modern Reports.
Mod.Rep. The Modern Reports, English King's Bench,
etc. ;—Modern Reports by Style (Style's King's
Bench Reports).
Mol. (or Moll.). Molloy's Irish Chancery Reports.
Mol.de Jure Mar. Molloy, De Jure Maritimo et Na-
vali.
Molloy. Molloy, Ireland.
Moly. Molyneau's Reports, English Courts.
Mon. Montana ;—T. B. Monroe's Kentucky Reports ;
—Ben Monroe's Kentucky Reports.
Mon. (B.). Ben Monroe's Kentucky Reports.
Mon. (T.B.). T. B. Monroe's Kentucky Reports.
M o n.An g I. Monasticon Anglicanum.
Mona. (or Monaghan). Monaghan's Reports, vols.
147-165 Pennsylvania.
Monag. Monaghan, Pa.
Monr. Monroe (see Mon.).
Monroe L.R. Monroe Legal Reporter, Pa.
Mont. Montana ;—Montana Reports ;—Montagu's Eng-
lish Bankruptcy Reports ;—Montriou's Bengal Re-
ports.
1848

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MOR.PRIV.CORP.
Ment.Bank.Rep. Montagu's English Bankruptcy Re-
ports.
Mont.Co.L:R. Montgomery County Law Reporter,
Pennsylvania.
Mont.Cond.Rep. Montreal Condensed Reports.
Mont.D. & De G. Montagu, Deacon & De Gex's Eng-
lish Bankruptcy Reports.
Mont.Ind. Monthly Index to Reporters (National Re-
porter System).
Mont.L.R. Montreal Law Reports, Queen's Bench ;—
Montreal Law Reports, Superior Court.
Mont.L.R.Q.B. Montreal Law Reports, Queen's Bench.
.Mont.L.R.S.C. Montreal Law Reports, Superior Court.
Mont.Law Rev. Montana Law Review.
Mont. & A. (Mont. & Ayr.). Montagu & Ayrton, Eng.
Mont. & B. (Mont. & BO. Montagu & Bligh's English
Bankruptcy Reports.
Mont. & C. Montagu & Chitty's English Bankruptcy
Reports.
Mont. & M. (or Mont. & Mac A.). Montagu and Mac-
Arthur's English Bankruptcy Reports.
Montesq. (or Montesq.Esprit des Lois). Montesquieu,
Esprit des Lois.
Montg. (or Montg.Co.Law Rep'r) (Pa.). Montgomery
County Law Reporter, Pennsylvania.
Month.Jur. Monthly Jurist, Bloomington, Ill.
Month.L.J. Monthly Journal of Law, Wash.
Month.L.Mag. Monthly Law Magazine (London).
Month.L.Rep. Monthly Law Reporter, Boston.
Month.L.Rev. Monthly Law Review.
Month.Law But. Monthly Law Bulletin, N.Y.
Month.Leg.Exam. Monthly Legal Examiner, N.Y.
Month.West.Jur. Monthly Western Jurist, Blooming-
ton, Ill.
Montr. Montriou's Reports, Bengal ;—Montriou's Sup-
plement to Morton's Reports.
Montr.Cond.Rep. Montreal Condensed Reports.
Montr.Leg.N. Montreal Legal News.
Montr.Q.B. Montreal Law Reports, Queen's Bench.
Montr.Su per. Montreal Law Reports, Superior Court.
Moo. Francis Moore's English King's Bench Reports ;
—J. M. Moore's English Common Pleas Reports ;-
Moody's English Crown Cases.
Moo.A. Moore's Reports, vol. 1 Bosanquet & Puller,
after page 470.
Moo.C.C. (or Moo.Cr.C.). Moody's English Crown Cas-
es Reserved.
Moo.C.P. Moore's English Common Pleas Reports.
Moo.Ind.App. Moore's Reports, Privy Council, Indian
Appeals.
Moo.J.B. Moore's English Common Pleas Reports.
Moo.K.B. Moore's English King's Bench Reports.
Moo.P.C. Moore's Privy Council Cases, Old and New
Series.
Moo.Tr. Moore's Divorce Trials.
Moo. & Mal. Moody & Malkin's English Nisi Prius
Reports.
Moo. & Pay. Moore & Payne's English Common Pleas
Reports.
Moo. & Rob. Moody & Robinson's English Nisi Prius
Reports.
Moo. & Sc. Moore & Scott's English Common Pleas
Reports.
Mood. (or Moody). Moody's English Crown Cases, Re-
served.
Mood. & Malk. Moody & Malkin's English Nisi Prius
Reports.
Mood. & R. Moody & Robinson's English Nisi Prius
Reports.
Mood. & Rob. Moody & Robinson, English.
Moody, Cr.Cas. Moody's English Crown Cases.
Moody & M. Moody & Mackin's English Nisi Prius
Reports.
Moody & R. Moody and Robinson's English Nisi
Prius Reports.
Moon. Moon's Reports, vols. 133-144 Indiana and vols.
6-14 Indiana Appeals.
Moore. Moore's English King's Bench Reports ;-
Moore's English Common Pleas Reports ;-
Moore's English Privy Council Reports ;—Moore's
Reports, vols. 28-34 Arkansas ;—Moore's Reports,
vol. 67 Alabama ;—Moore's Reports, vols. 22-24
Texas.
Moore (A.). A. Moore's Reports in 1 Bosanquet &
Puller, after page 470.
Moore C.P. Moore's English Common Pleas Reports.
Moore, Cr.Law. Moore's Criminal Law and Proce-
dure.
Moore E.I. Moore's East Indian Appeals.
Moore G.C. Moore's Gorham Case (English Privy
Council).
Moore Indian App. Moore's Indian Appeals, Eng.
Moore K.B. Sir F. Moore's English King's Bench Re-
ports.
Moore P.C. Moore's English Privy Council Reports
Moore P.C.N.S. Moore's English Privy Council Re-
ports, New Series.
Moore, Presby.Dig. Moore's Presbyterian Digest.
Moore & P. Moore & Payne's English Common Pleas
Reports.
Moore & S. Moore & Scott's English Common Pleas
Reports.
Moore & W. (or Moore & Walker). Moore & Walker's
Reports, vols. 22-24 Texas.
Mor. Morison's Dictionary of Decisions in the Court
of Session, Scotland ;—Morris (see Morr.).
Mor.Corp. Morawetz on Private Corporations.
Mor.Dic. Morison's Dictionary, Scotch Decisions and
Supplement.
Mor.Ia. Morris' Iowa Reports.
Mor.Min.Rep. Morrison's Mining Reports.
Mor.Priv.Corp. Morawetz on Private Corporations.
1849

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MOR.ST.CAS.
Mor.St.Cas. Morris' Mississippi State Cases.
Mor.Supp. Supplement to Morison's Dictionary,
Scotch Court of Session.
Mor.Syn. Morison's Synopsis, Scotch Session Cases.
Mor.Tran. Morrison's Transcript of United States
Supreme Court Decisions.
Moreau & Carleton's Partidas. Moreau-Lislet and
Carleton's Laws of Las ,Siéte Partidas in force in
Louisiana.
Ming. & W.L.J. Morgan & Williams' Law Journal,
London.
Morl.Dig. Morley's East Indian Digest.
Morr. Morris' Iowa Reports (see, also, Morris and
Mor.) ;—Morrow's Reports, vols. 23-36 Oregon ;-
Morrell's English Bankruptcy Reports.
Morr.Jam. Morris' Jamaica Reports.
Morr.M.R. (or Morr.Min.Rep.). Morrison's Mining Re-
ports, Chicago.
Morr.St.Cas. Morris' State Cases, Mississippi.
Morr.Trans. Morrison's Transcript, United States Su-
preme Court Decisions.
Morrell, Ban kr.Cas. Morrell's English Bankruptcy
Cases.
Morris. Morris' Iowa Reports;—Morris' Reports, vol.
5 California ;—Morris' Reports, vols. 43-48 Mis-
sissippi ;—Morris' Jamaica Reports ;—Morris'
Bombay Reports ;—Morrissett's Reports, vols. 80,
98 Alabama.
Morris Repl. Morris on Replevin.
Morris & Har. Morris & Harrington's Sudder De-
wanny Adawlut Reports, Bombay.
Morse, Banks. Morse on the Law of Banks and Bank-
ing.
Morse Tr. Morse's Famous Trials.
Morton. Morton's Reports, Bengal.
Mos. Mosely's English Chancery Reports.
Moult.Ch.P. Moulton's Chancery Practice, New York.
Mozley & Whiteley. Mozley & Whiteley's Law Dic-
tionary.
Mu.Corp.Ca. Withrow's Corporation Cases, vol. 2.
Mulford, Nation. Mulford, The Nation.
Mu m.Jam. Mumford's Jamaica Reports.
M u m f. Mumford's Jamaica Reports.
Mun. (or Mun.L.Rep.). Municipal Law Reporter.
Mun. (or Munf.). Mumford's Virginia . Reports.
Mun.Code. Municipal Code.
n.Corp.Cas. Municipal Corporation Cases.
Mun.L.J. Municipal Law Journal.
Mur. Murphey's North Carolina Reports ;—Murray's
Scotch Jury Court Reports ;—Murray's Ceylon Re-
ports ;—Murray's New South Wales Reports.
Mur.U.S.Ct. Murray's Proceedings in the United
States Courts.
Mur. & Hurl. Murphy & Hurlstone's English Ex-
chequer Reports.
Murfree, Off.Bonds. Murfree on Official Bonds.
M u rp h. Murphey's North Carolina Reports.
Murr. Murray's Scotch Jury Trials ;—Murray's Cey-
lon Reports ;—Murray's New South Wales Re-
ports.
Murray. Murray's Scotch Jury Court Reports.
Murray (Ceylon). Murray's Ceylon Reports.
Murray's Eng.D1ct. Murray's English Dictionary.
Mutukisna. Mutukisna's Ceylon Reports.
Myer Dig. Myer's Texas Digest.
Myer Fed.Dee. Myer's Federal Decisions.
Myl. & C. (or Cr.). Mylne & Craig's English Chancery
Reports.
Myl. & K. (or Mylne & K.). Mylne & Keen's English
Chancery Reports.
Myr. Myrick's California Probate Court Reports.
Myr.Prob. (Cal.). Myrick's California Probate Court
Reports.
N. Nebraska ;—Nevada :—Northeastern  Reporter
(properly cited N. E.) ;—Northwestern Reporter
(properly cited N. W.).
N.Am.Rev. North American Review.
N.B. New Brunswick Reports.
N.B.Eq. New Brunswick Equity.
N.B.Eq.Ca. New Brunswick Equity Cases.
N.B.Eq.Rep. New Brunswick Equity Reports.
N.B.N.R. (or N.B.N.Rep.). National Bankruptcy News
and Reports.
N.B.R. National Bankruptcy Register, New York ;-
New Brunswick Reports.
N.B.Rep. New Brunswick. Reports.
N.B.V.Ad. New Brunswick Vice Admiralty Reports.
N.Benl. New Benloe, English King's Bench Reports.
N.C. North Carolina ;—North Carolina Reports ;-
Notes of Cases (English, Ecclesiastical, and Mari-
time) ;—New Cases (Bingham's New Cases).
N.C.C. New Chancery Cases (Younge & Collyer).
N.C.C.A. Negligence & Compensation Cases Annotat-
ed (U.S.).
N.C.Conf. North Carolina Conference Reports.
N.C.Ecc. Notes of Cases in the Ecclesiastical and
Maritime Courts.
N.C.L.Rep. North Carolina Law Repository.
N.C.L.Rev. North Carolina Law Review.
N.C.Str. Notes of Cases, by Strange, Madras.
N.C.T.Rep. (or N.C.Term R.). North Carolina Term
Reports.
N.Car. North Carolina ;—North Carolina Reports.
N.Chlp. (or N.Chip. [Vt.]). N. Chipman's Vermont Re-
ports.
N.D. North Dakota ;—North Dakota Reports.
N.D.L.Rev. North Dakota Law Review.
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N.Y.REP.
N.W.L.Rev. North Western Law Review, Chicago.
N.W.R. (or Rep.). North Western Reporter.
N.W.T. (or N.W.T.Rep.). Northwest Territories Re-
ports, Canada.
N.Y. New York ,—New York Court of Appeals Re-
ports.
N.Y.An n.Ca. New York Annotated Cases.
N.Y.App.Dec. New York Court of Appeals Decisions
N.Y.Cas.Err. New York Cases in Error (Caines'
Cases).
N.Y.Ch.Sent. New York Chancery Sentinel.
N.Y.City Ct. New York City Court.
N.Y.City Ct.Suppl. New York City Court Supplement.
N.Y.City H.Rec. New York City Hall Recorder.
N.Y.Civ.Pr.Rep. New York Civil Procedure Reports.
N.Y.Civ.Proc. New York Civil Procedure.
N.Y.Civ.Proc.R., N.S. New York Civil Procedure Re-
ports, New Series.
N.Y.Code Rep. (or N.Y.Code Report.). New York Code
Reporter.
N.Y.Code Reports, N.S. New York Code Reports, New
Series.
N.Y.Cond. New York Condensed Reports.
N.Y.Cr.R. (or Rep.). New York Criminal Reports.
N.Y.Ct.App. New York Court of Appeals.
N.Y.Daily L.Gaz. New York Daily Law Gazette.
N.Y.Daily Reg. New York Daily Register.
N.Y.EI.Cas. (or N.Y.Elect.Cas.). New York Election
Cases.
N.Y.J u r. New York Jurist.
N.Y.L.C.Ann. New York Leading Cases Annotated.
N.Y.L.Gaz. New York Law Gazette, N. Y.
N.Y.L.Rec. New York Law Record.
N.Y.L.Rev. New York Law Review.
N.Y.L.S.Rev. New York Law School Review.
N.Y.Law J. New York Law Journal.
N.Y.Leg.N. New York Legal News.
N.Y.Leg.Obs. New York Legal Observer, New York
City (Owen's).
N.Y.Leg.Reg. New York Legal Register.
N.Y.Misc. New York Miscellaneous Reports.
N.Y.Mo.L.R. New York Monthly Law Reports.
N.Y.Month.L.BuI. New York Monthly Law Bulletin.
N.Y.Month.L.R. New York Monthly Law Reports.
N.Y.M u n.Gaz. New York Municipal Gazette.
N.Y.Op.Att.-Gen. Sickels' Opinions of the Attorney-
General of New York.
N.Y.P.R. New York Practice Reports.
N.Y.Pr.Rep. New York Practice Reports.
N.Y.Rec. New York Record.
N.Y.Reg. New York Daily Register.
N.Y.Rep. New York Court of Appeals Reports.
N.E. New England ;—New edition ;—North Eastern
Reporter.
N.E.2d. North Eastern Reporter, Second Series.
N.E.R. North Eastern Reporter (commonly cited N.
E.) ;—New England Reporter.
N.E.Rep. North Eastern Reporter.
N.F. Newfoundland ;—Newfoundland Reports.
N.H. New Hampshire ;—New Hampshire Reports.
N.H.L.Rep. New Hamphire Law Reporter.
N.H.R. New Hampshire Reports.
N.H. & C. English Railway and Canal Cases, by Nich-
oll, Hare, Carroty , etc.
N.J. New Jersey ;—New Jersey Reports.
N.J.Eq. (or Ch.). New Jersey Equity Reports.
N.J.L. New Jersey Law Reports.
N.J.L.J. (or N.J.Law J.). New Jersey Law Journal.
N.J.L.Rev. New Jersey Law Review.
N.J.Misc. New Jersey Miscellaneous.
N.J.S.A. New Jersey Statutes Annotated.
N.J.Super. New Jersey Superior Court Reports.
N.L. Nelson's Lutwyche, English Common Pleas Re-
ports.
N.L.L. New Library of Law and Equity, English.
N.L.R.B. National Labor Relations Board Reports.
N.M. New Mexico ;—New Mexico Reports.
N.M.St.Bar Assn. New Mexico State Bar Association.
N.Mag.Ca. New Magistrates' Cases.
N. of Cas. Notes of Cases, English Ecclesiastical and
Maritime Courts ;—Notes of Cases at Madras (by
Strange).
N. of Cas.Madras. Notes of Cases at Madras (by
Strange).
N.P. Nisi Prius.
N.P.C. Nisi Prius Cases.
N.P.R. Nisi Prius Reports.
N.R. New Reports (English, 1862-18(i5) ;—Bosanquet
& Puller's New Reports ;—Not Reported.
N.R.B.P. New Reports of Bosanquet & Puller.
N.R.L. Revised Laws 1813, N.Y.
N.S. New Series ;—Nova Scotia.
N.S.Dec. Nova Scotia Decisions.
N.S.L.R. Nova Scotia Law Reports.
N.S.R. Nova Scotia Reports.
N.S.W. New South Wales Reports, Old and New
Series.
N.S.W.Eq.Rep. (or N.S.Wales L.R.Eq.). New South
Wales Law Reports Equity.
N.S.Wales L. New South Wales Law.
N.S.W.L.R. New South Wales Law Reports.
N.S.W.St.R. New South Wales State Reports.
N.Sc.Dec. Nova Scotia Decisions.
N.W. North Western Reporter.
N.W.2d. North Western Reporter, Second Series.
1851

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N.Y.REPTR.
N.Y.Reptr. New York Reporter (Gardenier's).
N.Y.S. New York Supplement ;-New York State ;-
New York State Reporter.
N.Y.S.2d New York Supplement Reporter, Second
Series.
N.Y.S.B.A.BuII. New York State Bar Association
Bulletin.
N.Y.Spec.Term R. Howard's Practice Reports.
N.Y.St.Dept.Rep. New York State Department Re-
ports.
N.Y.St.Rep. New York State Reporter.
N.Y.Sup. New York Supreme Court Reports.
N.Y.Super.Ct. New York Superior Court Reports.
N.Y.Supp. New York Supplement.
N.Y.Supr. New York Supreme Court Reports.
N.Y.T.R. New York Term Reports (Caines' Reports).
N.Y.Them. New York Themis.
N.Y.U.L.Q.Rev. New York University Law Quarter-
ly Review.
N.Y.Wkly.Dig. New York Weekly Digest.
N.Z. New Zealand ;-New Zealand Reports.
N.Z.Jur. New Zealand Jurist.
N.Z.Jur.N.S. New Zealand Jurist, New Series.
N.Z.Rep. New Zealand Reports, Court of Appeals.
N. & H. (or Hop.). Nott & Huntington's United States
Court of Claims Reports.
N. & M. Nevile & Manning's English King's Bench Re-
ports.
N. & M.Mag. Nevile & Manning's English Magistrates'
Cases.
N. & Me. Nott & McCord's South Carolina Reports.
N. & P. Nevile & Perry's English King's Bench Re-
ports.
N. & P.Mag. Nevile & Perry's English Magistrates'
Cases.
NaI.St.P. Nalton's Collection of State Papers.
Nap. Napier.
Napton. Napton's Reports, vol. 4 Missouri.
Narr.Mod. Narrationes Modern e, or Style's King's
Bench Reports.
Nat.B.C. National Bank Cases.
Nat.B.J. National Bar Journal.
Nat.B.R. (or Nat.Bank.Reg.). National Bankruptcy
Register Reports.
N at.B a n kr.Law. National Bankruptcy Law.
Nat.Bankr.R. National Bankruptcy Register, U.S.
Nat.Gorp.Rep. National Corporation Reporter, Chi-
cago.
Nat.L.Ree. National Law Record.
Nat.L.Rep. National Law Reporter.
Nat.L.Rev. National Law Review, Philadelphia.
Nat.Mun.Rev. National Municipal Review.
Nat.Reg. National Register, edited by Mead, 1816.
Nat.Rept.Syst. National Reporter System.
Nat.Rev. National Review, London.
Nat.U.L.Rev. National University Law Review.
NatI.Rep.Sys. National Reporter System.
Nd. Newfoundland Reports.
Neb. Nebraska ;-Nebraska Reports.
Neb.L.B. Nebraska Law Bulletin.
Neb., Unoff. 'Nebraska Unofficial.
Neg.Cas. Bloomfield's Manumission or Negro Cases,
New Jersey.
Neg.Inst.Law. Negotiable Instrument Law.
Nel. Nelson's English Chancery Reports.
Nell. Nell's Ceylon Reports.
Nels. Nelson's English Chancery Reports.
Nels.Abr. Nelson's Abridgment of the Common Law.
Nels.Fol.Rep. Finch's Chancery Reports, edited by
Nelson.
Nev. Nevada ;-Nevada Reports.
Nev.S.B.J. Nevada State Bar Journal.
Nev. & M. (or Man.). Nevile & Manning's English
King's Bench Reports.
Nev. & Mao. Neville & Macnamara's English Railway
and Canal Cases.
Nev. & Maori. Neville & Macnamara's English Rail-
way and Canal Cases.
Nev. & Man.Mag.Cas. Nevile & Manning's English
Magistrate's Cases.
Nev. & P. Nevile & Perry's English King's Bench Re-
ports.
Nev. & P.Mag.Cas. Nevile & Perry's English Magis-
trates' Cases.
New. Newell, Illinois Appeal Reports.
New Ann.Reg. New Annual Register, London.
New B.Eq.Ca. New Brunswick Equity Cases.
New B.Eq.Rep. New Brunswick Equity Reports, vol.
1.
New Benl. New Benloe's Reports, English King's
Bench.
New Br. New Brunswick Reports.
New Gas. New Cases (Bingham's New Cases).
New Cas.Eq. New Cases in Equity, vols. 8, 9 Modern
Reports.
New Eng.H 1st. New England Historical and Genea-
logical Register.
New Mag.Cas. New Magistrates' Cases (Bittleston,
Wise & Parnell).
New Nat.Brev. New Natura Brevium.
New Pr.Cases. New Practice Cases, English.
New Rep. New Reports in all the Courts, London ;-
Bosanquet & Puller's New Reports, vols. 4, 5 Bos-
anquet & Puller.
New Sess.Cas. Carrow, Hammerton & Allen's New
Session Cases, English.
New So.W. New South Wales.
1852

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O'M. &
New Term Rep. New Term Reports;—Dowling &
Ryland's King's Bench Reports.
New York City B.A.Bul. Bulletin of Ass'n of the Bar
of the City of N. Y.
New York Supp. New York Supplement.
New Zeal.L. New Zealand Law.
Newb. (or Newb.Adm.). Newberry's United States Dis-
trict Court, Admiralty Reports.
Newbyth. Newbyth's Manuscript Decisions, Scotch
Session Cases.
Newell. Newell's Reports, vols. 48-90 Illinois Ap-
peals.
Newell, Defam. Newell on Defamation, Slander and
Libel.
Newell, Eject. Newell's Treatise on the Action of
Ejectment.
Newell, Mal.Pros. Newell's Treatise on Malicious
Prosecution.
Newell, Stand. & L. Newell on Slander and Libel.
Newf.Sel.Cas. Newfoundland Select Cases.
Newfound'. Newfoundland.
Newl.Ch.Prac. Newland's Chancery Practice.
NIch.H. & C. (or Nicholl). Nicholl, Hare & Carrow's
English Railway and Canal Cases.
Nicholson. Nicholson's Manuscript Decisions, Scotch
Session Cases.
Niebh.Hist.Rom. Niebuhr, Roman History.
Nient cul. Nient culpable (not guilty).
N1I.Reg. (or Niles Reg.). Niles' Weekly Register.
Nisbet. (Nisbet of) Dirleton's Scotch Session Cases.
Nisi Prius & Gen.T.Rep. Nisi Prius & General Term
Reports, Ohio.
Nix.Dig. Nixon's Digest of Laws. N.J.
No.Ca.Ecc. & Mar. Notes of Cases (English), Ecclesi-
astical and Maritime.
No.East.Rep. North Eastern Reporter (commonly cit-
edN. E.).
No.West.Rep. North Western Reporter (commonly
cited N. W.).
Nol.Mag. (or Just, or Sett.Cas.). Nolan's English
Magistrates' Cases.
Nolan. Nolan, Eng.
Non cul. Non culpabilis (not guilty).
Norc. Norcross' Reports, vols. 23-24 Nevada.
Norr. Norris' Reports, vols. 82-96 Pennsylvania.
Norris. Norris, Pa.
North. Reports tempore Northington (Eden's English
Chancery Reports).
North.Co. Northampton County Reporter, Pa.
North W.L.J. North Western Law Journal.
North & G. North & Guthrie's Reports, vols. 68-80
Missouri Appeals.
Northam. (or Northam.Law Rep.). Northampton
County Law Reporter, Pa.
Northum. (or Northumb.Co. or Northumb.Co.Leg.N.).
Northumberland County Legal News, Pa.
Northu m b.L.J. Northumberland Legal Journal, Pa.
Northw.Pr. Northwest Provinces, India.
Northw.Rep. Northwestern Reporter (commonly cited
N. W.).
Not.Cas. Notes of Cases in the English Ecclesiastical
and Maritime Courts ;—Notes of Cases at Madras
(Strange).
Not.Cas.Madras. Notes of Cases at Madras (Strange).
Not.Dec. Notes of Decisions (Martin's North Caro-
lina Reports).
Not.J. Notaries Journal.
Not.Op. Wilmot's Notes of Opinions and Judgments.
Notes of Ca. Notes of Cases, English.
Notes on U.S. Notes on United States Reports.
Notre Dame Law. Notre Dame Lawyer.
Nott & Hop. Nott & Hopkins' United States Court of
Claims Reports.
Nott & Hunt. Nott & Huntington's Reports, vols. 1-7
United States Court of Claims.
Nott & McC. Nott & McCord's South Carolina Re-
ports.
Nov. NovellEe. The Novels or New Constitutions.
Nov.Sc. Nova Scotia.
Nov.Sc.Dec. Nova Scotia Decisions.
Nov.Sc.L.R. Nova Scotia Law Reports.
Noy. Noy's English King's Bench Reports.
Noy, Max. Noy's Maxims.
Nye. Nye's Reports, vols. 18-20 Utah.
00. Ohio Reports ;—Ontario ;—Ontario Reports ;-
Oregon Reports ;—Otto's United States Supreme
Court Reports.
0.B. Old Bailey ;—Old Benloe ;—Orlando Bridgman.
0.B.S. Old Bailey's Sessions Papers.
0.B. & F.N.Z. 011ivier, Bell & Fitzgerald's New Zea-
land Reports.
0.Ben. Old Benloe's Reports, English Common Pleas.
0.Bridg. (or 0.Bridgm.). Orlando Bridgman's Eng-
lish Common Pleas Reports ;—Carter's Reports,
ternpore Bridgman's English Common Pleas.
0.C. Orphans' Court.
0.C.C. Ohio Circuit Court Reports.
0.C.C.N.S. Ohio Circuit Court Reports, New Series.
0.C.D. Ohio Circuit Decisions.
0.13. Ohio Decisions.
0.D.C.C. Ohio Decisions, Circuit Court (properly
cited Ohio Circuit Decisions).
0.J.Act. Ontario Judicature Act.
0.L.D. Ohio Lower Court Decisions.
0.L.J. Olwines Law Journal, Pa,
O'M. & H. O'Malley & Hardcastle, Ireland.
1853

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O.N.B.
0.N.B. Old Natura Brevium.
0.0. Ohio Opinions.
0.R. Ontario Reports.
0.S. Ohio State Reports ;—Old Series ;—Old Series
King's & Queen's Bench Reports, Ontario (Upper
Canada) ;—Oklahoma Statutes.
O.S.A. Oklahoma Statutes Annotated.
0.S.C.D. (or 0.S.U.). Ohio Supreme Court Decisions,
Unreported Cases.
0.S.Supp. Oklahoma Statutes Supplement.
0.S. & C.P.Dec. Ohio Superior and Common Pleas
Decisions.
0.St. Ohio State Reports.
0.S.U. Ohio Supreme Court Decisions, Unreported
Cases.
0. & T. Oyer and Terminer.
O. & W.Dig. Oldham and White's Digest of Laws,
Tex.
O'Brien. O'Brien's Upper Canada Reports.
O'Callaghan, New Neth. O'Callaghan's History of
New Netherland.
Oct.Str. Octavo Strange, Select Cases on Evidence.
Odeneal. Odeneal's Reports, vols. 9-11 Oregon.
Off.Exec. Wentworth's Office of Executors.
Off.Gaz. Official Gazette.
Off.Gaz.Pat.Off. Official Gazette, United States Pat-
ent Office.
Officer. Officer's Reports, vols. 1-9 Minnesota.
Ogden. Ogden's Reports, vols. 12-15 Louisiana.
Ogilvie, Diet. Ogilvie's Imperial Dictionary of the
English Language.
Ohio. Ohio ;—Ohio Reports.
Ohio App. Ohio Appellate Reports.
Ohio Bar. Ohio State Bar Association Report.
Ohio Cir.Ct.R. Ohio Circuit Court Reports.
Ohio Cir.Ct.R.N.S. Ohio Circuit Court Reports, New
Series.
Ohio Cir.Dec. Ohio Circuit Decisions.
Ohio Dec. Ohio Decisions.
Ohio Dec.Reprint. Ohio Decisions, Reprint.
Ohio F.Dec. Ohio Federal Decisions.
Ohio Jur. Ohio Jurisprudence.
Ohio Law Abst. Ohio Law Abstract.
Ohio Law Bul. Ohio Law Bulletin.
Ohio Law J. Ohio Law Journal.
Ohio Law Rep. Ohio Law Reporter.
Ohio Leg.N. Ohio Legal News.
Ohio N.P. Ohio Nisi Prius.
Ohio N.P.N.S. Ohio Nisi Prius, New 'Series.
Ohio 0. Ohio Opinions.
Ohio Prob. Ohio Probate.
Ohio St. Ohio State Reports.
Ohio St.L.J. Law Journal of Student Bar Associa-
tion of Ohio State Univ.
Ohio Sup. & C.P.Dec. (or Ohio S. & C.P.Dec.). Ohio
Superior and Common Pleas Decisions.
O'Keefe Ord. O'Keefe's Orders in Chancery, Ireland.
Okl. Oklahoma ;—Oklahoma Reports.
OkI.Cr. Oklahoma Criminal Reports.
OkI.L.J. Oklahoma Law Journal.
0 k I.St.A n n. Oklahoma Statutes Annotated.
Okla. Oklahoma ;—Oklahoma Reports.
Okla.L.Rev. Oklahoma Law Review.
Okla.S.B.J. Oklahoma State Bar Journal.
Ole. (or Olc.Adm., Olcott). Olcott's United States Dis-
trict Court, Admiralty.
Olcott. Olcott, U.S.
Old Ben. Benloe in Benloe & Dalison, English Com-
mon Pleas Reports.
Old.Nat.Brev. Old Natura Brevium.
Oldr. Oldright's Reports, Nova Scotia.
Oliv.B. & L. Oliver, Beavan & Lefroy's Reports, vols.
5-7, English Railway and Canal Cases.
011.8. & F. 011ivier, Bell, & Fitzgerald, New Zealand.
O'Mal. & H. O'Malley & Hardcastle's English Elec-
tion Cases.
0 nsl.N.P. Onslow's Nisi Prius.
Ont. Ontario ;—Ontario Reports.
Ont.A. (or Ont.App.R.). Ontario Appeals Reports.
Ont.EI.Ca. Ontario Election Cases.
Ont.L.J. Ontario Law Journal.
Ont.L.J.N.S. Ontario Law Journal New Series.
Ont.P.R. (or Ont.Pr.Rep.). Ontario Practice Reports.
Ont.Pr. Ontario Practice.
Ont.W.N. Ontario Weekly Notes.
Ont.W.R. Ontario Weekly Reporter.
Op.Attys.Gen. Opinions of the United States Attor-
neys General.
Op.N.Y.Atty.Gen. Sickels' Opinions of Attorneys-Gen-
eral of New York.
Op.Sol.Dept.Labor. Opinions of the Solicitor for the
Department of Labor dealing with Workmen's
Compensation.
Or. Oregon ;—Oregon Reports.
Or.T.Rep. Orleans Term Reports, vols. 1, 2 Martin,
Louisiana.
Ord. Ordinance.
Ord.de la Mar. (or Ord.Mar.). Ordonnance de la Ma-
rine de Louis XIV.
Oreg. Oregon ;—Oregon Reports.
Oreg.L.Rev. (or Or.L.Rev.). Oregon Law Review.
Orl.Bridgman. Orlando Bridgman's English Common
Pleas Reports.
Orl.T.R. Orleans Term Reports, vols. 1, 2 Martin,
Louisiana.
Orleans App. Orleans Court of Appeals, La.
Orleans T.R. Orleans Term Reports, 1 and 2 Mar-
tin's Reports, La.
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PAC.
Ormond. Ormond's Reports, vols. 12-45 Alabama.
Ort.I nst. Ortolan's Institutes of Justinian.
Ot. Otto's United States Supreme Court Reports.
Out. Outerbridge's Reports, vols. 97-110 Pennsyl-
vania State.
Outerbridge. Outerbridge, Pa.
Over. (or Overton). Overton's Tennessee Reports.
Overt. Overton, Tenn.
Ow. Owen's English King's Bench Reports ;—New
South Wales Reports.
Owen. Owen's English King's Bench Reports.
Oxley. Young's Vice-Admiralty Decisions, Nova
Scotia, edited by Oxley.
P. Easter (Paschal) Term ;—Pennsylvania :—Peters ;
—Pickeiing's Massachusetts Reports ;—Probate ;
—Pacific Reporter.
P.2d. Pacific Reporter, Second Series.
[1891] P. Law Reports, Probate Division, from 1891
onward.
P.A.D. Peters' Admiralty Decisions.
P.C. Pleas of the Crown ;—Parliamentary Cases ;-
Practice Cases ;—Prize Cases ;—Patent Cases ;-
Privy Council ;—Prize Court;—Probate Court ;—
Precedents in Chancery.
P.C.App. Privy Council Appeals.
P.C.C. Privy Cases ;—Peters' Circuit Court Reports.
P.C.L.J. Pacific Coast Law Journal.
P.CI.R. Parker's Criminal Reports, New York ;—
Privy Council Reports.
P.D. Probate Division, English Law Reports (1876-
1890).
P.E.I. (or P.E.I.Rep.). Prince Edward Island Reports
(Haviland's).
P.F.S. P. F. Smith's Reports, vols. 51-81% Pennsyl-
vania State.
P.F.Smith. P. F. Smith, Pa.
P.Jr. & H. (or P. & H.). Patton, Jr., & Heath's Vir-
ginia Reports.
P.L. Public Laws.
P.L.J. Pittsburgh Law Journal, Pa.
P.L.M. Pacific Law Magazine.
P.L.R. Pacific Law Reporter.
P.N.P. Peake's English Nisi Prius Cases.
P.O.Cas. Perry's Oriental Cases, Bombay.
P.O.G. Patent Office Gazette.
P.O.R. Patent Office Reports.
P.P. Parliamentary Papers.
P.R. Parliamentary Reports ;—Pennsylvania Re-
ports, by Penrose & Watts ;—Pacific Reporter;—
Probate Reports.
P.R.C.P. Practical Register in Common Pleas.
P.R.Ch. Practical Register in Chancery.
P.R.R. Puerto Rico Supreme Court Reports.
P.R.U.C. ' Practical Reports, Upper Canada.
P.R. & D. (or P.R. & D.EI.Cas.). Power, Rodwell &
Dew's Election Cases, Eng.
P.S. Pardon's Pennsylvania Statutes Annotated.
P.S.C.U.S. Peters' United States Supreme Court Re-
ports.
P.S.R. Pennsylvania State Reports.
P.U.Fort. Public Utilities Fortnightly.
P.U.R. Public Utilities Reports.
P.W. (or P.Wms.). Peere Williams' English Chancery
Reports.
P. & B. Pugsley & Burbridge's Reports, New Bruns-
wick.
P. & C. Prideaux & Cole's Reports, English Courts,
vol. 4 New Session Cases.
P. & D. Perry & Davison's English Queen's Bench
Reports ;—Probate and Divorce.
P. & H. Patton, Jr., & Heath's Virginia Reports.
P. & K. Perry & Knapp's English Election Cases.
P. & L.Dig.Laws. Pepper & Lewis' Digest of Laws,
Pa.
P. & L.Laws. Private and Local Laws.
P. & M. Philip & Mary ;—Pollock and Maitland's
History of English Law.
P. & R. Pigott & Rodwell's Election Cases, English.
P. & W. Penrose & Watts' Pennsylvania Reports.
Pa. Pennsylvania ;—Pennsylvania Reports, by Pen-
rose & Watts ;—Pennsylvania State Reports ;—
Palm?, United States.
Pa.Bk.Cas. Pennsylvania Bank Cases.
Pa.C.C. (or Pa.Co.Ct. or Pa.Co.Ct.R.). Pennsylvania
County Court Reports.
Pa.Cas. Pennsylvania Supreme Court Cases, Sadler.
Pa.Com.P1. Pennsylvania Common Pleas Reporter.
Pa.Dist. (or Pa.Dist.R.). Pennsylvania District Court
Reports.
fa.Dist. & Co. Pennsylvania District and County.
Pa.L.J. Pennsylvania Law Journal Reports (Clark's) ;
—Pennsylvania Law Journal, Philadelphia.
Pa.L.J.R. Clark's Pennsylvania Law Journal Reports.
Pa.L.M. Pennsylvania Law Magazine.
Pa.L.Rec. Pennsylvania Law Record, Philadelphia.
Pa.Law J. Pennsylvania Law Journal.
Pa.Law Ser. (or Pa.L.S.). Pennsylvania Law Series.
Pa.Leg.Gaz. Legal Gazette Reports (Campbell) Pa.
Pa.N.P. Brightly's Nisi Prius Reports, Pennsylvania.
Pa.Rep. Pennsylvania Reports.
Pa.St. Pennsylvania State Reports.
Pa.St.Tr. Pennsylvania State Trials (Hogan's).
Pa.Super. (or Pa.Super.Ct. or Penn.Super.). Pennsyl-
vania Superior Court Reports.
Pac. Pacific Reporter.
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PAC.R. (OR REP.).
Pac.R. (or Rep.). Pacific Reporter (commonly cited
Pac. or P.).
Pacific C.L.J. Pacific Coast Law Journal, San Fran-
cisco.
Pacific Law Mag. Pacific Law Magazine.
Pal. Paine's United States Circuit Court Reports ;—
Paige's New York Chancery Reports.
Pal.Ch. (or Paige). Paige's New York Chancery Re-
ports.
Paine (or Paine C.C.). Pai g e's United States Circuit
Court Reports.
Paine, Elect. Paine on Elections.
Paley, Mor.Ph. Wm. Paley's Moral Philosophy, Eng.
Paley, Prin. & Ag. (or Paley, Ag.). Paley on Principal
and Agent, or Agency.
Pa!grave. Palgrave's Proceedings in Chancery ;—Pal-
grave's Rise and Progress of the English Com-
monwealth.
Palm. Palmer's English King's Bench Reports ;—
Palmer's Reports, vols. 53-60 Vermont.
Pam phl.Laws. Pamphlet Laws, Acts.
Pa n d. Pandects.
Panel. The Panel.
Papy. Papy's Reports, vols. 5, 6 Florida.
Par. Parker's English Exchequer Reports ;—Par-
sons' Reports, vols. 65-66 New Hampshire ;-
Parker's New York Criminal Reports.
Par.Dec. Parsons' Decisions, Massachusetts.
Par.Eq.Cas. (or Pars.). Parsons' Select Equity Cases,
Pennsylvania.
Pard.Droit Commer. Pardessus, Cours de Droit Com-
mercial.
Pardessus. Pardessus, Cours de Droit Commercial ;-
Pardessus, Lois Maritimes ;—Pardessus, Traites
des Servitudes.
Park. Parker's New York Criminal Reports ;—Park-
er's English Exchequer Reports.
Park.Cr.Cas. Parker's New York Criminal Reports.
Park.Dig. Parker's California Digest.
Park.Exch. Parker's English Exchequer Reports.
Park, Ins. Park on Insurance.
Park.Ins. Parker's Insurance, Eng.
Park.Rev.Cas. Parker's English Exchequer Reports
(Revenue Cases).
Parker. Parker's English Exchequer Reports ;—Park-
er's New York Criminal Reports ;—Parker's New
Hampshire Reports.
Parker, Cr.Cas. (N.Y.). Parker's New York Criminal
Reports.
Parker, Cr.R. (N.Y.). Parker's New York Criminal
Reports.
Parl.Cas. Parliamentary Cases (House of Lords Re-
ports).
Parl.Reg. Parliamentary Register.
Paroch.Ant. Kennett's Parochial Antiquities.
Pars. Parsons (see Par.).
Pars.Ans. Parsons' Answer to the Fifth Part of
Coke's Reports.
Pars.Bills & N. Parsons on Bills and Notes.
Pars.Cont. Parson on Contracts.
Pars.Eq.Cas. Parsons' Select Equity Cases, Pennsyl-
vania.
Pars.Mar.I ns. Parsons on Marine Insurance.
Pars.Mar.Law. Parsons on Maritime Law.
Pars.Merc.Law. Parsons on Mercantile Law.
Pars.Shipp.& Adm. Parsons on Shipping and Ad-
miralty.
Partidas. Moreau-Lislet and Carleton's Laws of Las
Sieve Partidas in force in Louisiana.
Pas. (Terminus Paschae) Easter Term.
Pasch.Dig. Paschal's Texas Digest of Decisions.
Paschal. Paschal's Reports, vols. 28-31 Texas and
Supplement to vol. 25.
Paschal's Ann.Const. Paschal's United States Consti-
tution, Annotated.
Pat. Patent ;—Paton's Scotch Appeal Cases ;—Pater-
son's Scotch Appeal Cases ;—Paterson's New
South Wales Reports.
Pat.App.Cas. Paton's Scotch Appeal Cases (Craigie,
Stewart & Paton) ;—Paterson's Scotch Appeal
Cases.
Pat.Comp. Paterson's Compendium of English and
Scotch Law.
Pat.Dec. Patent Decisions.
Pat.Law Rev. Patent Law Review, Washington, D.C.
Pat.Off.Gaz. Patent Office Gazette.
Pat.Off.Rep. Patent Office Reports.
Pat. & H. Patton, Jr., & Heath's Virginia Reports.
Pat. & Mur. Paterson & Murray's Reports, New South
Wales.
Pater. Paterson's Scotch Appeal Cases;—Paterson's
New South Wales Reports.
Paters.Comp. Paterson's Compendium of English and
Scotch Law.
Paterson. Paterson's Compendium of English and
Scotch Law ;—Paterson on the Game Laws ;—Pat-
erson's Liberty of the Press ;—Paterson on the
Liberty of the Subject ;—Paterson's Law and
Usages of the Stock Exchange ;—Paterson's
Scotch Appeal Cases.
Paton. Craigie, Stewart, & Paton's Scotch Appeal
Cases.
Paton App.Cas. Paton's Appeal Cases, Scotland.
Patr.Elect.Cas. Patrick's Election Cases, Upper Can-
ada.
Patrick EI.Cas. Patrick's Election Cases, Canada.
Patt. & H. Patton, Jr., & Heath's Virginia Reports.
Paulus. Julius Paulus, Sententiae Receptze.
Pea. Peake's English Nisi Prius Reports.
Peabody L.Rev. Peabody Law Review.
Peake Add.Cas. Peake's Additional Cases, vol. 2 of
Peake.
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1857
Peake N.P. Peake's English Nisi Prius Cases.
Pearce C.C. Pearce's Reports in Dearsly's Crown
Cases. English.
Pears. Pearson's Reports, Pennsylvania.
Peck. Peck's Tennessee Reports ;—Peck's Reports,
vols. 11-30 Illinois ;—Peckwell's English Elec-
tion Cases.
Peck (Tenn.). Peck's Tennessee Reports.
Peck.EI.Cas. Peckwell's English Election Cases.
Peck Tr. Peck's Trial (Impeachment).
Peckw. Peckwell's English Election Cases.
Peeples. Peeples' Reports, vols. 77-97 Georgia.
Peeples & Stevens. Peeples & Stevens Reports, vols.
80-97 Georgia.
Peere Wms. Peere-Williams' Reports, English Chan-
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Pen.Code. Penal Code.
Pen.Laws. Penal Laws.
Pen.N.J. Pennington's New Jersey Reports.
Pen. & W. Penrose & Watts' Pennsylvania Reports.
Penn. Pennsylvania ;—Pennsylvania State Reports;
—Pennypacker's Unreported Pennsylvania Cases;
—Pennington's New Jersey Reports ;—Pennewill's
Delaware Reports.
Penn.B.A.Q. Pennsylvania Bar Association Quarterly.
Pen n.Co.Ct.Rep. Pennsylvania County Court Reports.
Pen n.Del. Pennewill's Delaware Reports.
Pen n.Dist.Rep. Pennsylvania District Reports.
Pen n.L.Rev. Pennsylvania Law Review.
Pen n.Rep. Pennsylvania State Reports.
Pen n.St. (or St.R.). Pennsylvania State Reports.
Pennewill. Pennewill Reports, Del.
Penning. Pennington's New Jersey Reports.
Penny. Pennypacker's Unreported Pennsylvania Cas-
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Penny.Col.Cas. Pennypacker Colonial Cases, Pa.
Penr. & W. Penrose & Watts' Pennsylvania Reports.
Peo.L.Adv. People's Legal Adviser, Utica, New York.
Pepper & L.Dig.Laws. Pepper and Lewis' Digest of
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Per.Or.Cas. Perry's Oriental Cases, Bombay.
Per. & Day . Perry & Davison's English King's Bench
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Per. & Kn. Perry & Knapp's English Election Re-
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Perk. Perkins on Conveyancing ;—Perkins on Plead-
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Perry. Sir Erskine Perry's Reports, in Morley's
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Perry, Trusts. Perry on Trusts.
Perry '& D. Perry & Davison's English King's Bench
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Perry & 1<n. Perry & Knapp's English Election Cases.
Black's Law Dictionary Revised 4th Ed.-117
Pet. Peters' United States Supreme Court Reports;
—Peters' United States circuit Court Reports;—
Peters' United States District Court Reports (Ad-
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Pet.Ab. Petersdorff's Abridgment.
Pet.Ad. (or Pet.Adm.). Peters' United States District
Court Reports (Admiralty Decisions).
Pet.Br. Petit Brooke, or Brooke's New Cases, Eng-
lish King's Bench.
Pet.C.C. Peters' United States Circuit Court Reports.
Pet.Cond. Peters' Condensed Reports, United States
Supreme Court.
Pet.Dig. Peters' United States Digest ;—Peticolas'
Texas Digest.
Pet.S.C. Peters' United States Supreme Court Re-
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Peters Adm. Peters' United States District Court
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Petersd.Ab. Petersdorff's Abridgment.
Petit Br. Petit Brooke, or Brooke's New Cases, Eng-
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Ph.Ch. Phillips' English Chancery Reports.
Ph.St.Tr. Phillipps' State Trials.
PhaI.C.C. Phalen's Criminal Cases.
Pheney Rep. Pheney's New Term Reports.
Phil. Phillips' English Chancery Reports ;—Phillips'
North Carolina Reports ;—Phillips' English Elec-
tion Cases ;—Phillimore's English Ecclesiastical
Reports ;—Philadelphia Reports ;—Phillips' Illi-
nois Reports ;—Phillips' Treatise on Insurance.
Phil.Ch. Phillips' English Chancery Reports.
Phil.Ecc.Judg. Phillimore's Ecclesiastical Judgments.
Phil.Ecc.R. Phillimore's English Ecclesiastical Re-
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Phil.EI.Cas. Phillips' English Election Cases.
Phil.Eq. Phillips' North Carolina Equity Reports.
Phil.Ev. Phillips on Evidence.
Phil.Ev.Cow. & H. & Edw.Notes. Phillipps' on Evi-
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Phil.Fam.Cas. Phillipps' Famous Cases in Circum-
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Phil.Ins. Phillips on Insurance.
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Phila.Leg.Int. Philadelphia Legal Intelligencer, Pa.
Philippine Co. Philippine Code.

PDF page 1932

PHILIPPINE
Philippine. Philippine Reports.
Philippine L.J. Philippine Law Journal.
Phil,. Phillips (see Phil. and Phillips).
PhiII.1 ns. Phillips on Insurance.
Phillim. Phillimore's English Ecclesiastical Reports.
See, also, Phil.
Phllllm.Dom. Phillimore on the Law of Domicil.
Phillimore's Ecclesiastical Law.
Phillim.Int.Law. Phillimore's International Law.
Phillips. Phillips' English Chancery Reports ;—Phil-
lips' North Carolina Reports, Law and Equity ;—
Phillips' Reports, vols. 152-187 Illinois.
Pick. Pickering's Massachusetts Reports.
Pickle. Pickle's Reports, vols. 85-103 Tennessee.
Pierce, R.R. Pierce on Railroad Law.
Pig.Rec. Pigott's Recoveries, Eng.
Pig. & R. Pigott & Rodwell's English Registration
Appeal Cases.
Pike. Pike's Reports, vols. 1-5 Arkansas.
Pin. (or Pinn.). Pinney's Wisconsin Reports.
Ping.Chat.Mortg. Pingrey's Treatise of Chattel Mort-
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Piston (or Pist.). Piston's Mauritius Reports.
Pitc.Crim.Tr. Pitcairn's Ancient Criminal Trials,
Scotland.
Pitc.Tr. Pitcairn's Ancient Criminal Trials, Scot-
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Pitm.Prin. & Sur. Pitman on Principal and Surety.
Pitts (or Pittsb. or Pitts.Rep.). Pittsburg Reports ;—
Pittsburgh, Pa.
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Pittsb.Leg.J.N.S. Pittsburgh Legal Journal New
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Platt, Gov. Platt on the Law of Covenants.
Platt, Leas. Platt on Leases.
Plow. Plowden's English King's Bench Reports.
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Poe, Pl. Poe on Pleading and Practice.
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Poth.Cont. Pothier's Contracts.
Poth.Cont.de Change. Pothier, Traite du Contrat de
Change.
Poth.Cont.Sale (or Poth.Contr.Sale). Pothier, Trea-
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Poth.de Change. Pothier, Traite due Contrat de
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Poth.de l'Usure. Pothier, Traite de l'Usure.
Poth.de Societe App. Pothier, Traite du Contrat de
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Poth.du Depot. Pothier, Traite du Depot.
Poth.Louage. Pothier, Traite du Contrat de Louage.
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Poth.Pand. Pothier's Pandects.
Poth.Proc.Civil. Pothier, Traite de la Procedure
Pot h.Proc.Cri m. Pothier, Traite de la Procedure
Criminale.
1858

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PURD.DIG. (OR PURD.DIG.LAWS ).
Poth.Sociêté. Pothier, Traits due Contrat de So-
ciete
Poth.Traite de Change. Pothier, Traite du Contrat
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Poth.Vente. Pothier, Traite du Contrat de Vente.
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Pow.Dev. Powell, Essay upon the Learning of De-
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Pow.Mortg. Powell on Mortgages.
Pow.R. & D. Power, Rodwell & Drew's English Elec-
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Pow.Surr. Powers' Surrogate, N.Y.
Power's Sur. Power's Surrogate, N.Y.
Pr. Price's English Exchequer Reports  ;—Principi-
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Pr.C.K.B. Practice Cases in the King's Bench.
Pr.Ch. Precedents in Chancery, by Finch ; —Prac-
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Pr.Dec. Printed Decisions (Sneed's), Kentucky.
Pr.Div. Probate Division, Law Reports ;—Pritchard's
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Pr.Edw.Isl. Prince Edward Island.
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Pr.Min. Printed Minutes of Evidence.
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1859

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PURPLE'S ST.
Purple's St. Purple's Statutes, Scates' Compilation.
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R. & M.N.P. Ryan & Moody's Nisi Prius Cases, Eng-
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R. & Ry.C.C. Russell and Ryan's English Crown
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Rail. & Can.Cas. English Railway and Canal Cases ;
—Railway and Canal Traffic Cases.
1860

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REP. (1, 2, ETC.).
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Real Pr.Cas. Real Property Cases (English).
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Red. Redfield's New York Surrogate Reports ;—Red
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Red.Am.R.R.Cas. Redfield's Leading American Rail-
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Red.Cas.R.R. Redfield's Leading American Railway
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Red.Cas.Wills. Redfield's Leading Cases on Wills.
Red.R.R.Cas. Redfield's Leading American Railway
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Red. & Big.Cas.B. & N. Redfield & Bigelow's Leading
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Redf. (or Redf.Surr.). Redfield's New York Surrogate
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Red f.Carr. Redfield on Carriers and Bailments.
Red f.R.Cas. Redfield's Railway Cases, Eng.
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Redf.Sur. (N.Y.) Redfield's New York Surrogate
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Redf.Wills. Redfield's Leading Cases on Wills.
Redf. & B. Redfield & Bigelow's Leading Cases, Eng.
Red ington. Redington's Reports, vols. 31-35 Maine.
Reed Fraud. Reed's Leading Cases on Statute of
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Rees' Cyclopmdia. Abraham Rees' English Cyclo-
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Ref.n.r.e. Refused, not reversible error.
Ref.w.m. Refused, want of merit.
Reg.App. Registration Appeals.
Reg.Brev. Register of Writs.
Reg.Cas. Registration Cases.
Reg.Gen. Regulae Generales.
Reg.Jud. Registrem Judicale.
Reg.0m.Brev. Registrum Otnnium Brevium.
Reg.Orig. Registrum Originale.
Reg.Writ. Register of Writs.
Reilly. Reilly's English Arbitration Cases.
Rem.Cr.Tr. Remarkable Criminal Trials.
Rem.Tr. Cummins & Dunphy's Remarkable Trials.
Rem.Tr.No.Ch. Benson's Remarkable Trials and No-
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Remy. Remy's Reports, vols. 145-154 Indiana ; also
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Rep. Report ;—Reports ;—Reporter ;—Repealed ;—
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Ramsay, App.Cas. Ramsay, Appeal Cases, Canada.
Rand. Randolph's Virginia Reports ;—Randolph's Re-
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vols. 7-11 Louisiana Annual ;—Randall's Reports,
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Rap.Wit. Rapalje's Treatise on Witnesses.
Rap. & L. (or Law.). Rapalje & Lawrence, American
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Rap. & L.Law Dict. Rapalje and Lawrence Law Dic-
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Rapal. & L. Rapalje & Lawrence, American and Eng-
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Re.de L. Revue de Jurisprudence et Legislation,
Montreal.
1861

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REP.ASS.Y.
Rep.Ass.Y. Clayton's Reports of Assizes at Yorke.
Rep.Cas.Eq. Gilbert's Chancery Reports.
Rep.Cas.Madr. Reports of Cases, Dewanny Adawlut,
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Rep.Cas.Pr. Reports of Cases of Practice (Cooke's).
Rep.Ch. Reports in Chancery, English.
Rep.Ch.Pr. Reports on Chancery Practice.
Rep..Com.Cas. Reports on Commercial Cases, Bengal.
Rep.Const.Ct. Reports of the Constitutional Court,
South Carolina (Treadway, Mill, or Harper).
Rep.Cr.L.Com. Reports of Criminal Law Commission-
ers.
Rep.Eq. Gilbert's English Reports in Equity.
Rep. in Ch. Reports in Chancery, English.
Rep.Q.A. Report tempore Queen Anne, vol. 11 Mod-
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Rep.SeLCas.Ch. Kelynge's . (W) English Chancery Re-
ports.
Rep.t.Finch. Reports tempore Finch, English Chan-
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Rep.t.Hard. Lee's Reports tempore Hardwicke, Eng-
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Rep.t.Holt. Reports tempore Holt (English Cases of
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Rep.t.O.Br. Carter's English Common Pleas Reports
tempore 0. Bridgman.
Rep.t.Q.A. Reports tempore Queen Anne, vol. 11 Mod-
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Rep.t.Talb. Reports tempore Talbot, English Chan-
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Rep.Yorke Ass.  Clayton's Reports of Assizes at
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Reports. The Reports ;—Coke's English King's Bench
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Reprint. English Reprint.
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Rev. Revision of the Statutes Revised.
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Rev.Code Civ.Proc. Revised Code Civil Procedure.
Rev.Code Cr.Proc. Revised Code of Criminal Pro-
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Rev.Cr.Code. Revised Criminal Code.
Rev.Crit. Revue Critique, Canada.
Rev.de Jur. Revue de Jurisprudence, Canada.
Rev.de Legis. Revue de Legislation, Canada.
Rev.Laws. Revised Laws.
Rev.Leg. Revue Legale, Canada.
Rev.Leg.N.S. Revue Legale, New Series, Canada.
Rev.Mun.Code. Revised Municipal Code.
Rev.Ord. Revised Ordinances.
Rev.Ord.N.W.T. Revised Ordinances, Northwest Ter-
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Rev.Pen.Gode. Revised Penal Code.
Rev.Pol.Code. Revised Political Code.
Rev.Rep. Revised Reports, Eng.
Rev.St. Revised Statutes.
Reyn. Reynolds' Reports, vols. 40-42 Mississippi.
Reynolds' Land Laws. Reynolds' Spanish and Mexi-
can Land Laws.
Rice. Rice's South Carolina Law Reports.
Rice's Code. Rice's Code of Practice, Colo.
Rice Eq. (or Ch.). Rice's South Carolina Equity Re-
ports.
Rice, Ev. Rice's Law of Evidence.
Rich. Richardson's South Carolina Law Reports ;—
Richardson's Reports, vols. 2-5 New Hampshire.
Rich.C.P. Richardson's Practice Common Pleas, Eng.
Rich.Ch. Richardson's South Carolina Equity Re-
ports.
Rich.Ct.CI. Richardson's Court of Claims Reports.
Rich.Dict. Richardson's New Dictionary of the Eng-
lish Language.
Rich Eq. Richardson's South Carolina Equity Re-
ports.
Rich.Eq. (or Ch.) Cas. Richardson's South Carolina
Equity Reports.
Rich.Law (S.C.). Richardson's South Carolina Law
Reports.
Rich.N.S. Richardson's South Carolina Reports, New
Series.
R ich.Pr.Reg. Richardson's Practical Register, English
Common Pleas.
Rich. & H. Richardson & Hook's Street Railway De-
cisions.
Rich. & W. Richardson & Woodbury's Reports, vol. 2
New Hampshire.
Riddle's Lex. Riddle's Lexicon.
Ridg. Ridgeway's Reports tempore Hardwicke, Chan-
cery and King's Bench.
Ridg.Ap. Ridgeway's Irish Appeal (or Parliamentary)
Cases.
Ridg.Cas. Ridgeway's Reports tempore Hardwicke,
Chancery and King's Bench.
Ridg.L. & S. Ridgeway, Lapp & Schoales' Irish Term
Reports.
Ridg.P.C. (or Ridg.Parl.). Ridgeway's Irish Appeal
(or Parliamentary) Cases.
Ridg.Rep. (or St.Tr.). Ridgeway's (Individual) Re-
ports of State Trials in Ireland.
Ridg.t.Hard. (or Ridg.t.Hardw. or Ridg. & Hard.).
Ridgeway's Reports tempore Hardwicke, Chanc-
ery and King's Bench.
1862

PDF page 1937

ROSC.REAL ACT.
Ridgew. Ridgeway (see Ridg.).
Ridley, Civil & Ecc.Law. Ridley's Civil and Ecclesias-
tical Law.
Ried. Riedell's Reports, vols. 68, 69 New Hampshire.
Ril. (or Riley). Riley's South Carolina Law Reports ;
—Riley's Reports, vols. 37-42 West Virginia.
RII. (or Riley) Ch. (or Eq.). Riley's South Carolina
Chancery Reports.
RII.Harp. Riley's Edition of Harper's South Carolina
Reports.
Riley. Riley's South Carolina Chancery Reports;-
Riley's South Carolina Law Reports ;—Riley's Re-
ports, vols. 37-42 West Virginia.
RI ner. Riner's Reports, vol. 2 Wyoming.
Riv.Ann.Reg. Rivington's Annual Register.
Rob. Robinson's Virginia Reports ;—Robinson's Lou-
isiana Reports ;—Robinson's Reports, vols. 2-9
and 17-23 Colorado Appeals ;—Robertson's New
York Superior Court Reports ;—Robinson's Eng-
lish Ecclesiastical Reports ;—Chr. Robinson's
English Admiralty Reports ;—W. Robinson's Eng-
lish Admiralty Reports ;—Robinson's Scotch Ap-
peal Cases ;—Robertson's Scotch Appeal Cases ;-
Robinson's Reports, vol. 38 California ;—Robin-
son's Reports, vols. 1-4 Louisiana Annual ;-
Roberts' Reports, vols. 29-31 Louisiana Annual ;-
Robards' Reports, vols. 12, 13 Missouri ;—Robards'
Conscript Cases, Texas ;—Chr. Robinson's Upper
Canada Reports ;—J. L. Robinson's Upper Canada
Reports ;—Robertson's Reports, vol. 1 Hawaii ;-
Robinson's Reports, vol. 1 Nevada.
Rob.Adm. Chr. Robinson's English Admiralty Re-
ports.
Rob.Adm. & Pr. Roberts on Admiralty and Prize.
Rob.App. Robertson's Scotch Appeal Cases.
Rob.Car.V. Robertson's History of the Reign of the
Emperor Charles V.
Rob.Cas. Robertson's Scotch Appeal Cases.
Rob.Chr. Chr. Robinson's English Admiralty Reports.
Rob.Consc.Cas. Robards' Conscript Cases, Texas.
Rob.Ecc. (or Rob.Eccl.). Robertson's English Eccle-
siastical Reports.
Rob.Eq. Roberts' Principles of Equity.
Rob.Jun. William Robertson's English Admiralty Re-
ports.
Rob.L. & W. Roberts, Learning & Wallis' County
Court Reports.
Rob.La. Robinson's Louisiana Reports.
Rob.Pat. Robinson on Patents.
Rob.S.I. Robertson's Sandwich Island (Hawaiian) Re-
ports.
Rob.Sc.App. Robinson's Scotch Appeals, English
House of Lords.
Rob.Sr.Ct. Robertson's New York Superior Court Re-
ports.
Rob.U.C. Robinson's Reports, Upper Canada.
Rob.Va. Robinson's Virginia Reports.
Rob.Wm.Adm. William Robinson's English Admiral-
ty Reports.
Robards. Robards' Reports, vols. 12, 13 Missouri ;-
Robards' Texas Conscript Cases.
Robards & Jackson. Robards & Jackson's dleports,
vols. 26-27 Texas.
Robb (or Robb Pat.Cas.). Robb's United States Patent
Cases.
Robert.App.Cas. Robertson's Appeal Cases, Scotland.
Roberts. Roberts' Reports, vols. 29-31 Louisiana An-
nual.
Robertson. Robertson's Scotch Appeal Cases ;—Rob-
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ertson's English Ecclesiastical Reports ;—Robert-
son's Hawaiian Reports. See, also, Rob.
Robin.App. (or Robin.App.Cas.). Robinson's Appeal
Cases, Scotland.
Robinson. Chr. Robinson's English Admiralty Re-
ports ;—W. Robinson's English Admiralty Re-
ports ;—Robinson's Virginia Reports ;—Robinson's
Louisiana Reports ;—Robinson's Scotch Appeal
Cases ;—Robinson's Reports, vol. 38 California ;-
Chr. Robinson's Reports, Upper Canada:—J. L.
Robinson's Reports, Upper Canada ;—Robinson's
Reports, Colorado ;—Robinson's Reports, vol. 1
Nevada.
Robs.Bankr. Robson's Bankrupt Practice ,—Robert-
son's Handbook of Bankers' Law.
Robt. Robert ;—Robertson.
Roccus, Ins. Roccus on Insurance.
Rocky Mt.L.Rev. Rocky Mountain Law Review.
Rodman. Rodman's Reports, vols. 78-82 Kentucky.
Rog.Ecc.Law. Rogers' Ecclesiastical Law.
Rogers. Rogers' Reports, vols. 47-51 Louisiana An-
nual.
Rol. (or Roll.). Rolle's English King's Bench Reports.
Roll. Roll of the Term.
Rolle (or Roli.Rep.). Rolle's English_King's Bench Re-
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Rolle Abr. Rolle's Abridgment.
Rolle R. Rolle's English King's Bench Reports.
Rolls Ct.Rep. Rolls' Court Reports.
Rom. (or Rom.Cas.). Romilly's Notes of Cases, Eng.
Rom.Law. Mackeldy's Handbook of the Roman Law.
Root. Root's Connecticut Reports.
Rop.Husb. & Wife. Roper on Husband and Wife.
Rop.Leg. Roper on Legacies.
Rorer, Jud.Sales. Rorer on Void Judicial Sales.
Rorer, R.R. Rorer on Railways.
Rosc.Adm. Roscoe's Admiralty Jurisdiction and Prac-
tice.
Rosc.Crim.Ev. Roscoe on Criminal Evidence.
Rosc.Jur. Roscoe's Jurist, London.
Rosc.N.P. Roscoe's Nisi Prius.
Rosc.Real Act. Roscoe on Real Actions.
1863

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ROSCOE
Roscoe. Roscoe's Reports of Supreme Court of Cape
of Good Hope (South Africa).
Roscoe, Bldg.Cas. Roscoe, Digest of Building Cases,
Eng.
Roscoe, Cr.Ev. (or Rosc.Crim.Ev.). Roscoe on Crim-
inal Evidence.
Rose (or Rose B.C.). Rose's Reports, English Bank-
ruptcy.
Rose Notes. Rose's Notes on United States Reports.
Rose W.C. Rose Will Case, New York.
Ross, Cont. Ross on Contracts.
Ross, Cony . Ross' Lectures on Conveyancing, etc.,
Scotland.
Ross Lead.Cas. Ross' Leading Cases, Eng.
Ross Ldg.Cas. Ross' Leading Cases on Commercial
Law.
Rot.Flor. Rote Florentine (Reports of the Supreme
Court, or Rota, of Florence).
Rot.Parl. Rotule Parliamentarim.
Rowe. Rowe's Interesting Parliamentary and Mili-
tary Cases.
Rowe Rep. Rowe's Reports (Irish).
Rowell. Rowell's Reports, vols. 45-52 Vermont.
Rowell, EI.Cas. Rowell's Contested Election Cases, U.
S. House of Representatives.
Roy.Dig. Royall's Digest Virginia Reports.
R.S. Revised Statutes.
Rt.Law Repts. (or Rt.Law Rep.). Rent Law Reports,
India.
Rucker. Rucker's Reports, vols. 43-46 West Virginia.
Ruff. (or Ruff. & H.). Ruffin & Hawks' North Carolina
Reports.
Rul.Cas. Campbell's Ruling Cases, Eng.
Rules Sup.Ct. Rules of the Supreme Court.
Runn. (or Runnells). Runnell's Reports, Iowa.
Rus. Russell.
Russ. Russell's English Chancery Reports.
Russ.Arb. Russell on Arbitrators.
Russ.Ch. Russell's English Chancery Reports.
Russ.Cr. (or Russ.Crimes). Russell on Crimes and
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Russ.Elec.Cas. (or Russ.Elect.Cas.). Russell's Election
Cases, Mass., Nova Scotia ;—Russell's Election
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Russ.Eq.Cas. Russell's Equity Cases, Nova Scotia.
Russ.Eq.Rep. Russell's Equity Decisions, Nova Scotia.
Russ.Fact. Russell on Factors and Brokers.
Russ.Merc.Ag. Russell on Mercantile Agency.
Russ.N.Sc. Russell's Equity Cases, Nova Scotia.
Russ.t.Eld. Russell's English Chancery Reports
tempore Elden.
Russ. & C.Eq.Cas. Russell's & Chesley's Equity Cases,
Nova Scotia.
Russ. & Ches. Russell & Chesley's Reports, Nova
Scotia.
Russ. & Ches.Eq. Russell & Chesley's Equity Reports,
Nova Scotia.
Russ. & Geld. Russell & Geldert's Reports, Nova
Scotia.
Russ. & M. Russell & Mylne's English Chancery Re-
ports.
Russ. & R.Cr.Cas. Russell and Ryan's English Crown
Cases Reserved.
Russ. & Ry. Russell & Ryan's English Crown Cases
Reserved.
Russell. Russell's Equity Decisions, Nova Scotia.
Rutg.C.as. Rutger-Waddington Case, New York City,
1784.
Rutgers L.Rev. Rutgers Law Review.
Ruth.' nst. Rutherford's Institutes of Natural Law.
Ry.Cas. Reports of Railway Cases.
Ry.Med.J ur. Ryan's Medical Jurisprudence.
Ry. &Can.Cas. Railway and Canal Cases, England.
Ry. &,Can.Traf.Ca. Railway and Canal Traffic Cases.
Ry. & Corp.Law J. (or Ry. & Corp.Law Jour.). Rail-
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Lords Appeal Cases ;—Southeastern Reporter
(properly cited S.E.) ;—Southwestern Reporter
(properly cited S. W.) ;—New York Supplement ;—
Supreme Court Reporter.
S.A.L.R. South Australian Law Reports.
S.Af.L.J. South African Law Journal.
S.App. Shaw's Scotch House of Lords Appeal Cases.
S.Austr.L. South Australia Law.
S.Aust.L.R. South Australian Law Reports.
S.B. Upper Bench, or Supreme Bench.
S.Bar J. State Bar Journal of California.
S.C. South Carolina ;—South Carolina Reports, New
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Court ;—Sessions Cases ,—Samuel Carter (see Or-
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1907 S.C. Court of Session Cases, Scotland.
S.C.A. Supreme and Exchequer Courts Act, Canada.
S.C.Bar Assn. South Carolina Bar Association.
S.C.C. Select Chancery Cases (part 3 of Cases in
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S.C.E. Select Cases Relating to Evidence, Strange.
S.C.Eq. South Carolina Equity.
1907 S.C., J. Court of Justiciary Cases, Scotland.
1864

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SAW. (OR SAWY.).
S.C.L. South Carolina Law.
S.C.R. South Carolina Reports, New Series ,—Har-
per's South Carolina Reports ;—Supreme Court
Reports ;—Supreme Court Rules ;—Supreme Court
of Canada Reports.
S.Car. South Carolina ;—South Carolina Reports,
New Series.
S.Ct. Supreme Court Reporter.
S.D. South Dakota ;—South Dakota Reports.
S.D.A. Sudder Dewanny Adawlut Reports, India.
S.D. & B. Shaw, Dunlop & Bell's Scotch Court of
Session Reports (1st Series).
S.D. & B.Sup. Shaw, Dunlop & Bell's Supplement,
containing House of Lords Decisions.
S.E. South Eastern Reporter.
S.E.2d. South Eastern Reporter, Second Series.
S.E.C. Securities and Exchange Commission Deci-
sions.
S.F. Used by the West Publishing Company to locate
place where decision is from, as, "S. F. 59," San
Francisco Case No. 59 on Docket.
S.F.A. Sudder Foujdaree Adawlut Reports, India.
S.H.A. Smith-Hurd Illinois Annotated Statutes.
S.Just. Shaw's Justiciary Cases, Scotland.
S.L.C. Smith's Leading Cases.
S.L.C.App. Stuart's Lower Canada Appeal Cases.
S.L.J. Scottish Law Journal, Edinburgh.
S.R. State Reporter, New York.
S.S. Synopsis Series of United States Treasury Deci-
sions.
S.S.C. Sandford's New York City Superior Court
Reports.
S.T. (or St.Tri.) State Trials.
S.T.D. Synopsis Treasurer's Decisions.
S.Teind. Shaw's Teind Cases, Scotland.
S.V.A.R. Stuart's Vice-Admiralty Reports, Quebec.
S.W. South Western ;—South Western Reporter.
S.W.2d. South Western Reporter, Second Series.
S.W.L.J. South Western Law Journal, Nashville,
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S.W.L.Rev. South Western Law Review.
S.W.Rep. South Western Reporter (commonly cited
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S. & B. Smith & Batty's Irish King's Bench Reports.
S. & C. Saunders & Cole's English Bail Court Re-
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Ohio.
S. & C.Rev.St. Swan and Critchfield's Revised Stat-
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S. & D. Shaw, Dunlop, & Bell's Scotch Court of Ses-
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S. & G. Smale & Giffard, English.
S. & L. Schoales Lefroy's Irish Chancery Reports.
S. & M. Shaw & Maclean's Appeal Cases, Hous; , of
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S. & M.Ch. Smedes & Marshall's Mississippi Chancery
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S. & R. Sergeant & Rawle's Pennsylvania Reports.
S. & R. on Neg. Shearman and Redfield on Negli-
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S. & S. Sausse & Scully's Irish Rolls Court Reports ;-
Simons & Stuart, English Vice-Chancellors' Re-
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S. & Sm. Searle & Smith's English Probate and Di-
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S. & T. Swabey & Tristram's English Probate and
Divorce Reports.
Sadler. Sadler's Cases, Pa.
Sal. Salinger's Reports, vols. 90-108 Iowa.
Salk. Salkeld's English King's Bench Reports.
Salm.Abr. Salmon's Abridgment of State Trials.
Salm.St.R. Salmon's Edition of the State Trials.
San Fran.L.B. San Francisco Law Bulletin.
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Sanb. & B.Ann.St. Sanborn and Berryman's Annotat-
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Sand.Ch. Sandford's New York Chancery Reports.
Sand.I.Rep. Sandwich Island (Hawaiian) Reports.
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Sand. & H.Dig. Sandels and Hill's Digest of Statutes,
Ark.
Sandars, Just.Inst. (or Sand.Inst.Just.Introd.). San-
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Sandf. Sandford's New York Superior Court Reports.
Sandf.Ch. Sandford's New York Chancery Reports.
Sandl.St.Pap. Sandler's State Papers.
Sanf. Sanford's Reports, vol. 59 Alabama.
Sar.Ch.Sen. Saratoga Chancery Sentinel.
Sask.L. Saskatchewan Law.
Sau. & Sc. Sausse & Scully's Irish Rolls Court Re-
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Sauls. Saulsbury's Reports, vols. 5-6 Delaware.
Saund. Saunders' English King's Bench Reports.
Saund.Pl. & Ev. Saunders' Pleading and Evidence.
Saund. & C. Saunders & Cole's English Bail Court Re-
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Saund. & Mac. Saunders & Macrae's English County
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Sausse & Sc. Sausse & Scully's Irish Rolls Court Re-
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Say . Savile's English Common Pleas Reports.
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Say .Syst. Savigny, System des Heutigen ROmischen
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Saw. (or Sawy.). Sawyer's United States Circuit
Court Reports.
1865

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SAX. (OR SAXT.).
Scot L.T. Scot Law Times, Edinburgh.
Scot.Law J. Scottish Law Journal (Glasgow).
Scott. Scott's English Common Pleas Reports ;-
Scott's New York Civil Procedure.
Scott J. Reporter, English Common Bench Reports.
Scott N.R. Scott's New Reports, English Common
Pleas.
Scr.L.T. Scranton Law Times, Pennsylvania.
Searle & Sm. Searle & Smith's English Probate and
Divorce Reports.
Seb.Trade-Marks. Sebastian on Trade-Marks.
Sec.leg. Secundum legum (according to law).
Sec.reg. Secundum regulam (according to rule).
Secd.pt.Edw.111. Part 3 of the Year Books.
Secd.pt.H.V1. Part 8 of the Year Books.
Sedg.Dam. Sedgwick on the Measure of Damage.
Sedg.L.Cas. Sedgwick's Leading Cases on Damages ;
—Sedgwick's Leading Cases on Real Property.
Sedg.St. & Const.Law. Sedgwick on Statutory and
Constitutional Law.
Sedg. & W.Tr.Tltle Land. Sedgwick and Wait on the
Trial of Title to Land.
Selgn.Rep. Seigniorial Reports, Lower Canada.
Sel.Cas.Ch. Select Cases in Chancery (part 3 of Cases
in Chancery).
Sel.Cas.D.A. Select Cases (Sudder), Dewanny Adaw-
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Sel.Cas.Ev. Select Cases in Evidence (Strange).
Sel.Cas.N.F. Select Cases, Newfoundland.
Sel.Cas.N.W.P. Selected Cases, Northwest Provinces,
India.
Sel.Cas.N.Y. Yates' Select Cases, New York.
Sel.Cas.t.Br. Cooper's Select Cases tempore Brough-
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Sel.Cas.t.King. Select Cases in Chancery tempore
King.
Sel.Cas.t.Nap. ,(Drury's) Select Cases tempore Napier,
Irish Chancery.
Sel.Cas.with Opin. Select Cases with Opinions, by
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Sel.Dec.Bomb. Selected Decisions, Sudder Dewanny
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Sel.Dec.Madr. Select Decrees, Sudr Udawlut, Madras.
SeI.L.Cas. Select Law Cases, Eng.
Sel.Pr. Sellon's Practice.
Seld. Selden's Reports, vol. 5-10 New York Court of
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Seld.Notes. Selden's Notes, New York Court of Ap-
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Seld.Tit.Hon. Selden's Titles of Honor.
Selden. Selden's Reports, New York Court of Ap-
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Selw. Selwyn's Nisi Prius, Eng.
Sax. (or Saxt.). Saxton's New Jersey Chancery Re-
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Sc. Scilicet (that is to say) ;—Scaccaria (Exchequer);
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Sc.J u r. Scottish Jurist.
Sc.L.Rep. (or Sc.L.R.). Scottish Law Reporter, Eden-
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Sc.N.R. Scott's New Reports.
Sc.Sess.Cas. Scotch Court of Session Cases.
Sc. & Div.App. Scotch and Divorce Appeals (Law Re-
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Scac. Scaccaria Curia (Court of Exchequer).
Scam. Seammon's Reports, vols. 2-5 Illinois.
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Sch.L.R. Schuylkill Legal Record, Pa.
Sch. & Lef. Schoales & Lefroy's Irish Chancery Re-
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Schalk. Schalk's Jamaica Reports.
Scher. Scherer, New York Miscellaneous Reports.
Schm.Civil Law. Schmidt's Civil Law of Spain and
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Schomberg, Mar.Laws Rhodes. Schomberg, Treatise
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Schouler, Bailm. Schouler on Bailments.
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Schouler, Pers.Prop. Schouler on Personal Property.
Schouler, U.S.Hist. Schouler's History of the United
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Schouler, Wills. Schouler on Wills.
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Sco. Scott's English Common Pleas Reports.
Sco.N.R. Scott's New Reports, English Common Pleas.
Scot. Scotland ;—Scottish.
Scot.Jur. Scottish Jurist, Edinburgh.
Scot.L.R. Scottish Law Reporter, Edinburgh ;—Scot-
tish Law Review, Glasgow.
1866

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SHOW.P.C.
Shars. & B.Lead.Cas.Real Prop. Sharswood and Budd's
Leading Cases of Real Property.
Shaw. Shaw's Scotch Appeal Cases ;—Shaw's, etc.,
Decisions in the Scotch Court of Session (1st
Series) ;—Shaw's Scotch Justiciary Cases ;-
Shaw's Scotch Teind Court Reports ;—G. B.
Shaw's Reports, vols. 10, 11 Vermont ;—W. G.
Shaw's Reports, vols. 30-35 Vermont.
Shaw (G.B.). G. B. Shaw's Reports, vols. 10, 11 Ver-
mont.
Shaw (W.G.). W. G. Shaw's Reports, 30-35 Vermont.
Shaw App. Shaw's Appeal Cases, Scotland.
Shaw Crim.Cas. Shaw's Criminal Cases, Scotland.
Shaw.Dec. Shaw's, etc., Decisions in the Scotch Court
of Session (1st Series).
Shaw, Dunl. & B. Shaw, Dunlop & Bell's (1st Series)
Scotch Session Cases.
Shaw, H.L. Shaw's Scotch Appeal Cases, House of
Lords.
Shaw Jus. Shaw's (John) Scotch Justiciary Cases.
Shaw T.Cas. Shaw's Scotch Teind Court Reports.
Shaw, W. & C. Shaw, Wilson & Courtenay, Scotch
(same as Wilson & Shaw).
Shaw & D. Shaw & Dunlop, Scotland.
Shaw & M. (or Shaw & Macl.). Shaw & MacLean, Scot-
land.
Shear. & R.Neg. Shearman and Redfield on Negli-
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Shel. Sheldon (see Sheld.).
Shel.Ca. Shelley's Case in vol. 1 Coke's Reports.
Sheld. (or Sheldon). Sheldbn's Reports, Superior
Court of Buffalo, New York.
Sheld.Subr. Sheldon on Subrogation.
Shelf.Lun. Shelford on Lunacy.
Shelf.Mar. & Div. Shelford on Marriage and Divorce.
Shep. Shepley's Reports, vols. 13-18 and 21-39
Maine ;—Shepherd's Reports, Alabama.
Shep.Abr. Sheppard's Abridgment.
Shep.Sel.Cas. Shepherd's Select Cases, Alabama.
Shep.Touch. Sheppard's Touchstone.
Sheph.Sel.Cas. Shepherd's Select Cases, Ala.
Sher.Ct.Rep. Sheriff Court Reports, Scotland ;—Sher-
iff Court Reporter.
Shiel. Shiel's Reports, Cape Colony.
Shinn, Repl. Shinn's Treatise on American Law of
Replevin.
Shipp. Shipp's Reports, vols. 66, 67 North Carolina.
Shirt. Shirley's Reports, vols. 49-55 New Hampshire.
Shirl.L.C. Shirley's Leading Crown Cases, Eng.
Shortt, I nform. Shortt on Informations, Criminal,
Quo Warranto, Mandamus, and Prohibition.
Show. Shower's English Parliamentary Cases ;—
Shower's English King's Bench Reports.
Show.K.B. Shower's English King's Bench Reports.
Show.P.C. Shower's English Parliamentary Cases.
SeIw.N.P. Selwyn's Law of Nisi Prius.
Selw. & Barn. The First Part of Barnewall & Alder-
son's English King's Bench Reports.
Serg.Land Laws Pa. Sergeant on the Land Laws of
Pennsylvania.
Serg. & Low b.Rep. English Common Law Reports,
American reprints edited by Sergeant & Lowber.
Serg. & R. Sergeant & Rawle's Pennsylvania Reports.
Sess. Session.
Sess.Acts. Session Acts.
Sess.Cas. Sessions Cases (English King's Bench Re-
ports) ;—Scotch Court of Session Cases.
Sess.Cas.Sc. Scotch Court of Session Cases.
Sess.Laws. Session Laws.
Sess. Pa p.C.C.C. Session Papers, Central Criminal
Court.
Sess.Pap.O.B. Session Papers, Old Bailey.
Set. (or Sett. & Rem.) Cas. English Settlement and
Removal Cases (Burrow's Settlement Cases).
Sev.H.C. Sevestre's High Court Reports, Bengal.
Sev.S.D.A. Sevestre's Sudder Dewanny Adawlut Re-
ports, Bengal.
Sewell, Sheriffs. Sewell on the Law of Sheriffs.
Sh. Shower's English Parliamentary Cases ;—Show-
er's English King's Bench Reports ;—Shepley's
Reports, vols. 13-18 and 21-30 Maine ;—Shaw's
Scotch Appeal Cases ;—Shaw's, etc., Decisions in
the Scotch Court of Session (1st Series) ;-
Shaw's Scotch Justiciary Cases ;—Shaw's Scotch
Teind Court Reports ;—G. B. Shaw's Reports,
vols. 10, 11 Vermont ;—W. G. Shaw's Reports,
vols. 30-35 Vermont ;—Shirley's Reports, vols.
49-55 New Hampshire ;—Sheldon's Buffalo, New
York, Superior Court Reports ;—Shepherd's Re-
ports, Alabama ;—Shipp's Reports, vols. 66, 67
North Carolina ;—Shand's Reports, vols. 11-44
South Carolina ;—Shadforth's Reserved Judg-
ments, Victoria.
Sh.App. Shaw's Scotch Appeal Cases.
Sh.Crim.Cas. Shaw's Criminal Cases (Justiciary
Court).
Sh.Dig. Shaw's Digest of Decisions, Scotland.
Sh.Jus. Shaw's Justiciary Cases, Scotland.
Sh.W. & C. Shaw, Wilson & Courtenay's Scotch Ap-
peals Reports (Wilson & Shaw's Reports).
Sh. & Dunl. Shaw & Dunlop's Scotch Court of Ses-
sion Reports (1st Series).
Sh. & Macl. Shaw & Maclean's Scotch Appeal Cases.
Shad. Shadford's Victoria Reports.
Shan. (or Shan.Cas.). Shannon's Tennessee Cases.
Shand. Shand's Reports, vols. 11-44 South Carolina.
Shankland's St. Shankland's Public Statutes, Tenn.
Shannon's Code. Shannon's Annotated Code, Tenn.
Shars.BI.Com m. Sharswood's Blackstone's Commen-
taries.
Shars.Tab.Ca. Sharswood's Table of Cases, Connecti-
cut.
1867

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SI DE KA QUARTERLY
Si De Ka Quarterly. Si De Ka Quarterly
Sick. Sickels' Reports, vols. 46-146 New York Court
of Appeals.
Sick.Min.Dec. Sickels' Mining Laws and Decisions.
Sick.Op. Sickels' Opinions of the New York Attor-
neys-General.
Sid. Siderfin's English King's Bench Reports.
SiIv. Silvernail's Unreported Cases, New York Court
of Appeals ;—Unreported Cases, New York Su-
preme Court ;—Criminal Reports, New York.
Silv.App. Silvernail's Appeals, N. Y.
Sliv.Sup. Silvernail's Supreme, N. Y.
SlIv.Cit. Silvernail's New York Citations.
Silvernail. Silvernail, N. Y.
Sim. Simons' English Vice-Chancery Reports ;—Sim-
mons' Reports, vols. 95-97, 99 Wisconsin.
Slm.N.S. Simons' English Vice-Chancery Reports,
New Series.
Sim. & C. Simmons & Conover's Reports, vols. 95-97,
99 Wisconsin.
Sim. & Stu. (or Sim. & S.). Simons & Stuart's English
Vice-Chancery Reports.
Sinclair. Sinclair's Manuscript Decisions, Scotch Ses-
sion Cases.
Singers. Singers Probate Court, Pa.
Sir T.J. Sir Thomas Jones' Reports.
Six Circ. Cases on the Six Circuits, Irish.
Skene. Skene's De Verborum Significatione.
Skill.Pol.Rep. Skillman's New York Police Reports.
Skin. Skinner's English King's Bench Reports.
Skinker. Skinker's Reports, vols. 65-79 Missouri.
Slade. Slade's Reports, vol. 15 Vermont.
Slade's St. Slade's Laws, Vt.
Sm.Ac. Smith's Actions at Law.
Sm.C.C.M. Smith's Circuit Courts-Martial Reports,
Maine.
Sm.Cond.Ala. Smith's Condensed Alabama Reports.
Sm.E.D. E. D. Smith's Reports, New York.
Sm.Eq. Smith's (J. W.) Manual of Equity ;—Smith's
Principles of Equity.
Sm.L.C. Smith's Leading Cases.
Sm.L.Cas.Com.L. Smith's Leading Cases on Commer-
cial Law.
Sm. & B.R.R.Cas. Smith & Bates' American Railway
Cases.
Sm. & Bat. Smith & Batty's Irish King's Bench Re-
ports.
Sm. & G. Smale & Giffard's English Vice-Chancellors'
Reports ;—Smith & Guthrie's Reports, vols. 81-83
Missouri Appeals.
Sm. & M. Smedes & Marshall's Mississippi Reports.
Sm. & M.Ch. Smedes & Marshall's Mississippi Chan-
cery Reports.
Sma. & Glff. Smale & Giffard's English Vice-Chancel-
lors' Reports.
Smale & G. Smale & Giffard, Eng.
Smed. & M. Smedes & Marshall's Mississippi Reports.
Smed. & M.Ch. Smedes & Marshall's Mississippi Chan-
cery Reports.
Smedes & M. (Miss.). Smedes & Marshall's Mississippi
Reports.
Smedes & M.Ch. Smedes & Marshall's Chancery,
Miss.
Smi. & Bat. Smith & Batty's Irish King's Bench Re-
ports.
Smith. Smith's New Hampshire Reports ; Smith's
Reports, vols. 2-4 Dakota ;—J. P. Smith's English
King's Bench Reports ;—Smith, in continuation of
Fox & Smith ;—Smith, English Registration ;-
P. F. Smith's Pennsylvania State Reports ;—E. P.
Smith's Reports, vols. 15-27 New York Court of
Appeals ;—E. D. Smith's New York Common Pleas
Reports;—E. H. Smith's Reports, vols. 147-162
New York Court of Appeals ;—Smith's Reports,
vols. 54-62 California ;—Smith's Indiana Reports ;
—Smith's Reports, vols. 61-64 Maine ;—Smith's
Reports, vols. 1-11 Wisconsin ;—E. B. Smith's
Reports, vols. 21-47 Illinois Appeals ;—Smith, Re-
porter, vols. 7,12 Heiskell's Tennessee Reports ;-
Smith's Reports, vols. 81-83 Missouri Appeals.
Smith, Act. Smith's Actions at Law.
Smith, C.C.M. Smith's Circuit Courts-Martial Re-
ports, Me.
Smith C.P. (or E.D.). E. D. Smith's Common Pleas Re-
ports, New York.
Smith, Ch.Pr. Smith's Chancery Practice.
Smith, Com.Law. Smith's Manual of Common Law.
Smith Cond.Rep. Smith's Condensed Reports, Ala.
Smith, Cont. Smith on Contracts.
Smith de Rep.Angi. Smith (Sir Thomas), De Repub-
lica Anglica [The Commonwealth of England and
the Manner of Government Thereof. 1621].
Smith, Dict.Antiq. Smith's Dictionary of Greek and
Roman Antiquities.
Smith, E.D. E. D. Smith, N.Y.
Smith E.H. Smith's (E. H.) Reports, vols. 147-162
New York Court of Appeals.
Smith E.P. (or Ct.App.). E. P. Smith's Reports, vols.
15-27 New York Court of Appeals.
Smith, Ex.Int. Smith on Executory Interest,.
Smith-Hurd Ann.St. Smith-Hurd Illinois Annotated
Statutes.
Smith Ind. Smith's Indiana Reports.
Smith J.P. J. P. Smith's English King's Bench Re-
ports.
Smith K.B. Smith's King's Bench, Eng.
Smith L.C. Smith's Leading Cases.
Smith, L.J. Smith's Law Journal.
Smith, Laws Pa. Smith's Laws of Pennsylvania.
Smith, Lead.Cas. Smith's Leading Cases.
Smith, Man.Eq.Jur. Smith's Manual of Equity Juris-
prudence.
1868

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SPOTTISW.Elt
Sol.J. Solicitors' Journal, London.
Sol.J. & R. Solicitors' Law Journal and Reporter, Lon-
don.
Som. (or Som.L.J.). Somerset Legal Journal, Pa.
Somn.Gavelkind (or Somner). Somner on Gavelkind.
Sou.Aus.L.R. South Australian Law Reports.
Soule, Syn. Soule's Dictionary of English Synonymes.
South. Southern Reporter.
South Car. South Carolina.
Southard. Southard's New Jersey Reports.
Southw.L.J. Southwestern Law Journal and Re-
porter.
Sp. Spink's English Ecclesiastical and Admiralty Re-
ports ;—Spears' South Carolina Law Reports.
Sp.Acts. Special Acts.
Sp.Eq. (or Ch.). Spears' South Carolina Equity Re-
ports.
Sp.Laws. Special Laws.
Sp.Pr.Cas. Spink's Prize Cases.
Sp.Sess. Special Session.
Sp.St. Private and Special Laws.
Sp. & Sel.Cas. Special and Selected Law Cases.
Sparks. Sparks' Reports, British Burmah.
Spaulding. Spaulding's Reports, vols. 71-80 Maine.
Spears (or Speers). Spears' (or Speers') South Caro
lina Law Reports.
Spears (or Speers) Eq. Spears' (or Speers') South
Carolina Equity Reports.
Spel.Feuds. Spelman, Feuds.
Spel.Rep. Spelman's Reports, Manuscript, English
King's Bench.
Spell.Extr.Rel. Spelling on Extraordinary Relief in
Equity and in Law.
Spell.Extr.Rem. Spelling's Treatise on Injunctions
and Other Extraordinary Remedies.
Speiman. Spelman, Glossarium Archaiologicum.
Spence, Ch. Spence's Equitable Jurisdiction of the
Court of Chancery.
Spence, Eq.Jur. Spence's Equitable Jurisdiction of
the Court of Chancery.
Spencer. Spencer's New Jersey Reports ;—Spencer's
Reports, vols. 10-20 Minnesota.
Spinks. Spinks' English Ecclesiastical and Admiralty
Reports.
Spinks, P.C. Spinks' English Prize Cases.
Spinks, Prize Cas. Spinks' Admiralty Prize Cases.
Spooner. Spooner's Reports, vols. 12-15 Wisconsin.
Spottis. Sir R. Spottiswoode's Reports, Scotch Court
of Session.
Spottis.C.L. & Eq.Rep. Common Law and Equity Re-
ports, published by Spottiswoode.
Spottisw. Spottiswoode, Scotland.
Spottisw.Eq. Spottiswoode's Equity, Scotland.
Smith Me. Smith's Reports, vols. 61-64 Maine.
Smith, Merc.Law. Smith on Mercantile Law.
Smith N.H. Smith's New Hampshire Reports.
Smith N.Y. Smith's Reports, vols. 15-27 and 147-162
New York Court of Appeals.
Smith P.F. (or Pa.). P. F. Smith's Pennsylvania State
Reports.
Smith Reg. Smith's Registration, Eng.
Smith, Wealth Nat. Smith, Inquiry into the Nature
and Causes of the Wealth of Nations.
Smith Wis. Smith's Reports, vols. 1-11 Wisconsin.
Smith's Laws. Smith's Laws, Pa.
Smith's Lead.Cas. Smith's Leading Cases.
Smith & B. Smith & Batty's Irish King's Bench Re-
ports ;—Smith & Bates' American Railway Cases.
Smith & B.R.R.C. Smith & Bates' American Railway
Cases.
Smith & G. Smith & Guthrie's Missouri Appeals Re-
ports.
Smoult. Notes of Cases in Smoult's Collection of Or-
ders, Calcutta.
Smy. (or Smythe). Smythe's Irish Common Pleas Re-
ports.
Smythe. Smythe, Ir.
Sneed. Sneed's Tennessee Reports ;—Sneed's Ken-
tucky Decisions.
Sneed Dec. Sneed's Kentucky Decisions.
Snell, Eq. Snell's Principles in Equity.
Snow. Snow's Reports, vol. 3 Utah.
Snyder, Mines. Snyder on Mines and Mining.
So. Southern Reporter.
So.2d. Southern Reporter, Second Series.
So.Aus.L.R. South Australian Law Reports.
So.Callf.L.Rev. (or So.CaI.L.R.). Southern California
Law Review.
So.Car. South Carolina ;—South Carolina Reports.
So.Car.Const. South Carolina Constitutional Reports
(by Treadway, by Mill, or by Harper).
So.Car.L.J. South Carolina Law Journal, Columbia.
So.East.Rep. South Eastern Reporter.
So.L.J. Southern Law Journal & Reporter, Nash-
ville, Tenn.
So.L.Q. Southern Law Quarterly.
So.L.Rev. Southern Law Review, Nashville, Tenn ;-
Southern Law Review, St. Louis.
So.L.Rev.N.S. Southern Law Review, New Series, St.
Louis, Mo.
So.L.T. Southern Law Times.
So.Law. Southern Lawyer.
So.Rep. Southern Reporter (commonly cited South. or
So.).
So.West.Rep. South Western Reporter (commonly cit-
edS.W.).
Soc.Eoon. Social Economist.
1869

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SPR. (OR SPRAGUE).
Spr. (or Sprague). Sprague's United States District
Court (Admiralty) Decisions.
St. State ;—Story's United States Circuit Court Re-
ports (see Sto.) ;—Stair's Scotch Court of Session
Reports ;—Stuart's (Milne & Peddle) Scotch Ses-
sion Cases ;—Statutes ;—Laws or Acts, in some
states.
St. at Large. South Carolina Session Laws.
St.Cas. Stillingfleet's Ecclesiastical Cases, English.
St.Ch.Cas. Star Chamber Cases.
St.Clem. St. Clement's Church Case, Philadelphia.
St.Eccl.Cas. Stillingfleet's Ecclesiastical Cases.
St.John's L.Rev. St. John's Law Review.
St.Law. Loughborough's Digest of Statute Law, Ky.
St.Lim. Statute of Limitations.
St.Louis L.Rev. St.Louis Law Review.
St.M. & P. Stuart, Milne & Peddle, Scotch.
St.Mark. St. Mark's Church Case, Philadelphia.
St.Marlb. Statute of Marlbriclge.
St.Mert. Statute of Merton.
St.Rep. State Reports ;—State Reporter.
St.Tr. The State Trials, English.
St.Westm. Statute of Westminster.
Stafford. Stafford's Reports, vols. 69-71 Vermont.
Stair. Stair's Reports, Scotch Court of Session.
Stair, I nst. Stair's Institutes of the Laws of Scot-
land.
Stan.L.R. (or Stanford L.Rev.). Stanford Law Re-
view.
Stand.Dict. Standard Dictionary.
Stanton. Stanton's Reports, vols. 11-13 Ohio.
Stanton's Rev.St. Stanton's Revised Statutes, Ky.
Star. (or Starkie). Starkie's English Nisi Prius Re-
ports.
Star Ch.Ca. Star Chamber Cases.
Stark.N.P. Starkie's English Nisi Prius Reports.
Starkie, Ev. Starkie on Evidence.
Starkie, Sland. & L. Starkie, on Slander and Libel.
Starr & C.Ann.St. Starr and Curtis' Annotated Stat-
utes, Ill.
Stat. (or Stat, at L.). United States Statutes at
Large.
State Tr. State Trials, English.
Staundef. Staundeforde, Exposition of the King's
Prerogative.
Staundef.P.C. Staundeforde, Les Plees del Caron.
Stearns, Real Act. Stearns' Real Actions.
Steph.Comm. Stephen's Commentaries on English
Law.
Steph.Cr.Law. Stephen's General View of the Crim-
inal Law.
Steph.Dig. Stephen's Quebec Law Digest.
Steph.Dig.Cr.Law (or Step h.Cri m.Dig.). Stephen's Di-
gest of the Criminal Law.
Steph.Dig.Ev. (or Steph.Ev.). Stephen's Digest of the
Law of Evidence.
Steph.Lect. Stephen, Lectures on History of France.
Steph.PI. Stephen on Pleading.
Stev.Dlg. Stevens' New Brunswick Digest.
Stevens & G. Stevens & Graham's Reports, vols. 80-
111 Georgia.
Stew. Stewart's Alabama Reports ;—Stewart's New
Jersey Equity Reports ;—Stewart's (R. W.) Re-
ports, vols. 1-10 South Dakota ; Stewart's Re-
ports, N.S.
Stew. (N.J.). Stewart's New Jersey Equity Reports.
Stew.Adm. Stewart's Vice-Admiralty Reports, Nova
Scotia.
Stew.Dig. Stewart's Digest of Decisions of the Courts
of Law and Equity, N. J.
Stew.Eq. Stewart's Reports, vols. 25-45 New Jersey
Equity.
Stew.N.Sc. Stewart's Admiralty Reports, Nova Sco-
tia.
Stew.V.A. Stewart's Vice-Admiralty Reports, Nova
Scotia.
Stew. & P. Stewart & Porter's Alabama Reports.
Stiles. Stiles' Reports, vols. 22-29 Iowa.
Still.Ecel.Cas. Stillingfleet's Ecclesiastical Cases.
Sti m.G loss. (or Stim.Law Gloss.). Stimson's Law
Glossary.
Stimson. Stimson's Law Glossary.
Stiness. Stiness' Reports, vols. 20-21 Rhode Island.
Sto. (or Sto.C.C.). Story's United States Circuit Court
Reports.
Sto.Const. Story's Commentaries on the Constitution
of the United States.
Stock. Stockton's New Jersey Equity Reports ;-
Stockton, New Brunswick (same as Berton's Re-
ports).
Stockett. Stockett's Reports, vols. 27-79 Maryland.
Stockt. Stockton's Equity, N.J.
Stockt.Ch. Stockton's New Jersey Chancery Reports.
Stookt.VIce-Ad m. Stockton's Vice-Admiralty, New
Brunswick.
Stor.Dict. Stormouth's Dictionary of the English
Language.
Story. Story's United States Circuit Court Reports.
See, also, Sto.
Story, Ag. Story on Agency.
Story, Ballm. Story on Bailments.
Story, Bills. Story on Bills.
Story, Comm.Const. Story's Commentaries on the
Constitution of the United States.
Story, Confl.Laws. Story on Conflict of Laws.
Story, Const. Story on the Constitution.
Story, Cont. Story on Contracts.
Story, E:;.Jur. Story's Equity Jurisprudence.
Story, Eq.PI. Story's Equity Pleading.
1870

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SWAN & C.R.ST.
Story, Laws. Story's Laws of the United States.
Story, Merchants. Abbott's Merchant Ships and Sea-
men by Story.
Story, Partn. Story on Partnership.
Story, Prom.Notes. Story on Promissory Notes.
Story, Sales. Story on Sales of Personal Property.
Story, U.S.Laws. Story's Laws of the United States.
Story's Laws. Story's United States Laws.
Str. Strange's English King's Bench Reports.
Str.Cas.Ev. (or Str.8vo.). Strange's Cases of Evidence
("Octavo Strange").
Str.N.C. Sir T. Strange's Notes of Cases, Madras.
Stra. Strange.
Strahan. Strahan's Reports, vol. 19 Oregon.
Stran. Strange.
Strange. Strange's Reports, English Courts.
Strange, Madras. Strange's Notes of Cases, Madras.
Stratton. Stratton's Reports, vols. 12-14 Oregon.
Stringfellow. Stringfellow's Reports, vols. 9-11 Mis-
souri.
Strob. Strobhart's South Carolina Law Reports.
Strob.Eq. (or Ch.). Strobhart's South Carolina Equity
Reports.
Struve. Struve's Reports, vol. 3 Washington Terri-
tory.
Stu.Adm. (or V.A.). Stuart's Lower Canada Vice-Ad-
miralty Reports.
Stu.Ap. Stuart's Appeal Cases (Lower Canada King's
Bench Reports).
Stu.K.B. (or L.C.). Stuart's Lower Canada King's
Bench Reports.
Stu.M. & P. (or Stu.MIl. & Ped.). Stuart, Milne &
Peddie's Scotch Court of Sessions Reports.
Stuart. Stuart's Lower Canada King's Bench Re-
ports ;—Stuart's Lower Canada Vice-Admiralty
Reports ;—Stuart, Milne & Peddie's Scotch Court
of Session Reports.
Stuart L.C.K.B. Stuart's Lower Canada King's Bench
Reports.
Stuart L.C.V.A. Stuart's Lower Canada Vice-Ad-
miralty Reports.
Stuart Vice-Adm. Stuart's Vice-Admiralty, Lower
Canada.
Stud.Hist. Studies in History, Economics and Public
Law.
Sty. Style's English King's Bench Reports.
Sty.Pr.Reg. Style's Practical Register.
Style. Style's English King's Bench Reports.
Su d.Dew.Ad. Sudder Dewanny Adawlut Reports,
India.
Su d.Dew.Rep. Sudder Dewanny's Reports, Northwest
Provinces, India.
Sugd.Powers. Sugden on Powers.
Sugd.Vend. Sugden on Vendors and Purchasers.
Sull.Lect. Sullivan's Lectures on Constitution and
Laws of England.
Sum. Sumner's United States Circuit Court Reports.
Summ.Dec. Summary Decisions, Bengal.'
Summerfield, S. Summerfield's (S.) Reports, vol. 21
Nevada.
Su mn. Sumner's United States Circuit Court Reports.
Su m n.Ves. (or Sum.Ves.). Sumner's Edition of Ves-
ey's Reports.
Sup. Supreme.
Sup.Ct. Supreme Court Reporter.
Sup.Ct.Rep. Supreme Court Reporter of Decisions
of United States Supreme Court.
Super. Superior Court ;—Superior Court Reports.
Super.Ct. Superior Court Reports, Pa.
Supp. New York Supplement Reports.
Supp.Code. Supplement to Code.
Supp.Gen.St. Supplement to the General Statutes.
Supp.Rev. ,Supplement to the Revision.
Supp.Rev.Code. Supplement to the Revised Code.
'Supp.Rev.St. Supplement to the Revised Statutes.
Supp.Ves.Jun. Supplement to Vesey, Jr.'s, Reports.
Su.pr. Supreme ;—Superior Court Reports,
Surr. Surrogate.
Sus.Leg.Chron. Susquehanna Legal Chronical, Pa.
Susq.L.C. Susquehanna Leading Chronicle.
Susq.L.Chron. Susquehanna Legal Chronicle, Pa.
Sut h. Sutherland's Reports.
Suth.Bengal. Sutherland's High Court Reports, Ben-
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Suth.Dam. Sutherland on the Law of Damages.
Suth.F.B.R. Sutherland's Full Bench Rulings, Bengal.
Su.th.P.C.J. (or A.). Sutherland's Privy Council Judg-
ments or Appeals.
Suth.St.Const. Sutherland on Statutes and Statutory
Construction.
Suth.W.R. Sutherland's Weekly Reporter, Calcutta.
Sw. Swanston's English Chancery Reports ;—Swa-
bey's English Admiralty Reports ;—Sweeney's
New York Superior Court Reports ;—Swan's Ten-
nessee Reports ,—Swinton's Scotch Justiciary
Cases ;—Swan ;—Sweet ;—Swift.
Sw. (or Swab.) & Tr. Swabey & Tristram's English
Probate and Divorce Reports.
Swab. (or Swab.Admr.). Swabey's English Admiralty
Reports.
Swan. Swan's Tennessee Reports ;—Swanston's Eng-
lish Chancery Reports.
Swan.Ch. Swanston's English Chancery Reports.
Swan Tr. Swan's Treatise, Ohio.
Swan '41. Swan's Revised Statutes of Ohio, 1841.
Swan '54. Swan's Revised Statutes of Ohio, 1854.
Swan & C.R.St. Swan and Critchfield's Revised Stat-
utes, Ohio.
1871

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SWAN & S.ST.
Swan & S.St. Swan and Sayler's Supplement to the
Revised Statutes, Ohio.
Swans. (or Swanst.). Swanston's English Chancery
Reports.
Swan's St. Swan's Statutes, Ohio.
Sween. Sweeney's New York Superior Court Re-
ports.
Sweeny. Sweeny, N.Y.
Sweet. Sweet's Law Dictionary ;—Sweet on the Lim-
ited Liability Act ;—Sweet's Marriage Settlement
Cases ;—Sweet's Precedents in Conveyancing ;---
Sweet on Wills.
Sweet M.Sett.Cas. Sweet's Marriage Settlement
Cases.
Swift, Dig. Swift's Digest, Connecticut.
Sw I n. Swinton's Scotch Justiciary Reports.
Swin.Jus.Cas. Swinton's Scotch Justiciary Cases.
Swin.Reg.App. Swinton's Scotch Registration Appeal
Cases.
Swinb.Wills. Swinburne on Wills.
Swint. Swinton's Justiciary Cases, Scotland.
Syme. Syme's Scotch Justiciary Reports.
Syn.Ser. 'Synopsis Series of the United States Treas-
ury Decisions.
T. Territory ;—Texas Reports ;—Tappan's Ohio Re-
ports.
T.B.Mon. T. B. Monroe's Kentucky Reports.
T.B. & M. Tracewell, Bowers & Mitchell, United
States Comptroller's Decisions, 1898.
T.C. Tax Court of the United States.
T.D. U. S. Treasury Decisions.
T.Jones (or 2 Jones). T. Jones' English King's Bench
Reports.
T.L.R. Times Law Reports.
T.M. Tax Magazine.
T.M.R. Trade Mark Reports.
T.R. Term Reports, Durnford & East ;—Teste Rege ;
—Dayton Term Reports.
T.R. (N.Y.). Caines' (Term) Reports, New York.
T.R.E. (or T.E.R.). Tempore Regis Edwardi.
T.R.N.S. Term Reports, New Series (East's Reports).
T.Raym. Sir T. Raymond's English King's Bench
Reports.
T.T. Trinity Term.
T.T.R. Tarl Town Reports, New South Wales.
T.U.P.Charit. T. U. P. Charlton's Reports, Georgia.
T. & C. Thompson & Cook's New York Supreme Court
Reports.
T. & G. Tyrwhitt & Granger's English Exchequer
Reports.
T. & H.Prao. Troubat and Haly's Pennsylvania Prac-
tice.
T. & M. Temple & Mew's Crown Cases, English.
T. & P. Turner & Phillips' Reports, English Chancery.
T. & R. Turner & Russell's English Chancery Reports.
Tait. Tait's Manuscript Decisions, Scotch Session
Cases.
Tal. (or Talb.). Cases tempore Talbot, English Chan-
cery.
Tam. Tamlyn's English Rolls Court Reports.
Taml. Tamlyn, Eng.
Tan. (or Taney). Taney's United States Circuit Court
Reports.
Tanner. Tanner's Reports, vols. 8-14 Indiana ;—Tan-
ner's Reports, vols. 13-17 Utah.
Tap. (or Tapp.). Tappan's Ohio Reports.
Tapping. Tapping on the Writ of Mandamus.
Tariff Ind., New. New's Tariff Index.
Tarl.Term R. Tarleton's Term Reports, New South
Wales.
Tasm.L.R. Tasmanian Law Reports.
Tate's Dig. Tate's Digest of Laws, Va.
Taun. (or Taunt.). Taunton's English Common Pleas
Reports.
Tax L.Rev. Tax Law Review.
Tax Law Rep. Tax Law Reporter.
Tay. Taylor (see Taylor) ;—Taylor's Reports, Ontario.
Tay.J.L. (or Tay.N.C.). J. L. Taylor's North Carolina
Reports.
Tay.U.C. Taylor's Upper Canada Reports.
Tay. & B. Taylor & Bell's Bengal Reports.
Tayl. Taylor, N. C.
Tayl.Civil Law. Taylor on Civil Law.
Tayl.Corp. Taylor on Private Corporations.
Tayl.Ev. Taylor on Evidence.
Tayl.Gloss. Taylor's Law Glossary.
Tayl.Hist.Gay . Taylor (Silas), History of Gavelkind.
Tayi.Landl.& Ten. Taylor's Landlord and Tenant.
Tay I.M ed.J u r. Taylor's Medical Jurisprudence.
Tayl.Priv.Corp. Taylor on Private Corporations.
Tayi.St. Taylor's Revised Statutes, Wis.
Taylor. Taylor's North Carolina Reports ;—Taylor's
Upper Canada Reports ;—Taylor's Bengal Re-
ports.
Taylor U.C. Taylor's King's Bench Reports, Upper
Canada (now Ontario).
Tech n.DIct. Crabb's Technological Dictionary.
Temp. Tempore (in the time of).
Temp.Geo.I I. Cases in Chancery tempore George II.
Tern p.L.Q. Temple Law Quarterly.
Temp. & M. Temple & Mew's English Crown Cases.
Temple & M. Temple & Mew Crown Cases, Eng.
Ten.Cas. Thompson's Unreported Cases, Tennessee ;
—Shannon's Cases, Tennessee.
Ten n. Tennessee ;—Tennessee Reports (Overton's).
Ten n.App. Tennessee Appeals.
1872

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Th. & C. Thompson & Cook's New York Supreme
Court Reports.
Thac.Cr.Cas. Thacher's Massachusetts Criminal Re-
ports.
Thacher, Cr.Cas. Thacher's Criminal Cases, Mass.
Thayer. Thayer's Reports, vol. 18 Oregon.
Thayer, Prelim.Treatise Ev. Thayer's Preliminary
Treatise on Evidence.
Black's Law Dictionary Revised 4th Ed.-118
TIDD, PRAC. (OR TIDD PR.).
The Rep. The Reporter ;—The Reports (Coke's Re-
ports).
Them. La Themis, Montreal, Quebec ;—The American
Themis, New York.
Theob. on Wills. Theobald on Wills.
Tho. Thomas (see Thom.) ;—Thomson (see Thom.) ;-
Thompson (see Thomp.).
Thom. Thomson's Reports, Nova Scotia ;—Thomas'
Reports, vol. 1 Wyoming.
Thom.Co.Litt. Thomas' Edition of Coke upon Little-
ton.
Thom.Const.L. (or L.C.). Thomas' Leading Cases on
Constitutional Law.
Thom.Dec. 1 Thomson, Nova Scotia Reports.
Thom.Rep. 2 Thomson, Nova Scotia Reports.
Thom.Sel.Dec. Thomson's Select Decisions, Nova
Scotia.
Thom. & Fr. Thomas & Franklin's Reports, vol. 1
Maryland Chancery.
Thomas. Thomas' Reports, Wyoming Territory.
Thomas, Mortg. Thomas on Mortgages.
Thomas, Negl. Thomas on Negligence.
Thomp.Cal. Thompson's Reports, vols. 39, 40 Cali-
fornia.
Thomp.Cit. Thompson's Citations, Ohio ;—Indiana.
Thomp.Dig. Thompson's Digest of Laws, Fla.
Thomp.Liab.Stockh. Thompson on Liability of Stock-
holders.
Thomp.N.B.Cas. Thompson's National Bank Cases.
Thomp.Neg. Thompson's Cases on Negligence.
Thomp.Tenn.Cas. Thompson's Unreported Tennessee
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Thomp.Trials. Thompson on Trials.
Thomp. & C. Thompson & Cook's New York Supreme
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Thomp.&St.Code. Thompson and Steger's Code,
Tenn.
Thomps.Cas. Thompson's Cases, Tenn.
Thompson. Thompson's Reports, vols. 39, 40 Cali-
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Thor. Thorington's Reports, vol. 107 Alabama,
Thorn. Thornton's Notes of Cases, Ecclesiastical and
Maritime.
Thornt. & Bl.Bldg. & Loan Ass'ns. Thornton and Black-
ledge's Law Relating to Building and Loan Asso-
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Thornton, Gifts. Thornton on Gifts and Advance-
ments.
Thorpe. Thorpe's Reports, vol. 52 Louisiana Annual.
Thos. Thomas (see Thom.).
Throop, Pub.Off. Throop's Treatise on Public Offi-
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Tich.Tr. Report of the Tichborne Trial, London.
Ti dd. Tidd's Costs ;—Tidd's Practice.
Tidd, Prac. (or Tidd Pr.). Tidd's Practice.
1873
Ten n.Cas. Shannon's Tennessee Cases ;—Unreported
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Ten n.Ch. Cooper's Tennessee Chancery Reports.
Ten n.Ch.A. Tennessee Chancery Appeals.
Ten n.Civ.A. Tennessee Civil Appeals.
Ten n.L.Rev. Tennessee Law Review.
Ten nieg.Rep. Tennessee Legal Reporter, Nashville.
Ter.Laws. Territorial Laws.
Term. Term Reports, English King's Bench (Durn-
ford & East's Reports).
Term N.C. Term Reports, North Carolina, by Taylor.
Term R. Term Reports, English King's Bench (Durn-
ford & East's Reports).
Termes de la Ley. Terms of the Common Laws and
Statutes Expounded and Explained by John Ras-
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Terr. Territory ;—Terrell's Reports, vols. 38-71 Tex-
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Terr. & Walk. Terrell & Walker's Reports, vols. 38-51
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Terry. Terry, Del.
Tex. Texas ;—Texas Reports.
Tex.A.Civ.Cas. White & Wilson's Civil Cases, Tex.
Tex.A.Civ.Cas. (Wilson). Texas Court of Appeal Civ-
il Cases.
Tex.App. Texas Court of Appeals Reports (Criminal
Cases) ;—Texas Civil Appeals Cases.
Tex.Civ.App. (or Tex.Civ.Rep.). Texas Civil Appeals
Reports.
Tex.Com.App. Texas Commission of Appeals.
Tex.Cr.R. (or Tex.Crim.Rep.). Texas Criminal Re-
ports.
Tex.Ct.Rep. Texas Court Reporter.
Tex.Dec. Texas Decisions.
Tex.Jur. Texas Jurisprudence.
Tex.L.J. Texas Law Journal, Tyler.
Tex.L.Rev. Texas Law Review.
Tex.Law & Leg. Texas Law and Legislation.
Tex.Su pp. Supplement to vol. 25, Texas Reports;—
Texas Supplement.
Tex.Unrep.Cas. Posey's Unreported Cases.
Th. Thomas (see Thom.) ;—Thomson (see Thom.) ;-
Thompson (see Thomp.).
Th.C.C. Thatcher's Criminal Cases, Massachusetts.
Th.C.Const.Law. Thomas' Leading Cases in Constitu-
tional Law.

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TIED.LIM.POLICE POWER
Tied.Lim.Police Power. Tiedeman's Treatise on the
Limitations of Police Power in the United States.
Tied.Mun.Gorp. Tiedeman's Treatise on Municipal
Corporations.
Tiedeman, Real Prop. Tiedeman on Real Property.
Tiff. (or Tiffany). Tiffany's Reports, vols. 28-39 New
York Court of Appeals.
Till. & Yates App. Tillinghast & Yates on Appeals.
Tillman. Tillman's Reports, vols. 68, 69, 71, 73, 75
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Times L.R. (or Times L.Rep.). Times Law Reports.
Tinw. Tinwald's Reports, Scotch Court of Sessions.
Title News. Title News.
To.Jo. Sir Thomas Jones' English King's Bench Re-
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Tobey. Tobey's Reports, vols. 9-10 Rhode Island.
Toiler. Toller on Executors.
Tomkins & J.Mod.Rom.Law. Tomkins & Jencken, Com-
pendium of the Modern Roman Law.
Toml. (or Toml. [Cas.]). Tomlins' Election Evidence
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Toml.Law Diet. Tomlins' Law Dictionary.
Toml.Supp.Br. Tomlins' Supplement to Brown's Par-
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Tot. (or Toth.). Tothill's English Chancrry Reports.
Touch. Sheppard's Touchstone.
Tou II. Toullier's Droit Civil Francais.
Toull.Drolt Civil Fr. (or Toullier, Dr.CIY.Fr.). Toul-
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Town.St.Tr. Townsend's Modern State Trials.
Townsh.PI. Townshend's Pleading.
Townsh.Sland. & L. Townshend on Slander and Li-
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Tr. & H.Pr. Troubat & Haly's Practice, Pa.
Tr.App. New York Transcript Appeals.
Tr.Ch. Transactions of the High Court of Chancery
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Traite du Mar. Pothier, Traite du Contrat de
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Trans.App. Transcript Appeals, New York.
Transcr.A. Transcript Appeals, N. Y.
Tray.Lat.Max. (or Leg.Max.). Trayner, Latin Maxims
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Tread. (or Tread.Const. Treadway's South
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Treas.Dec. Treasury Decisions, U. S.
Tred. Tredgold's Reports, Cape Colony.
Tri.Bish. Trial of the Seven Bishops.
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Trint.T. Trinity Term, Eng.
Tripp. Tripp's Reports, vols. 5-6 Dakota.
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Troubilm.Partn. Troubat on Limited Partnership.
Troub. & H.Prac. Troubat & Haly's Practice, Pa.
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True. Trueman's New Brunswick Reports and Equity
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Tuck.Sel.Cas. Tucker's Select Cases, Newfoundland.
Tuck.Sur. (or Tuck.Surr.). Tucker's Surrogate, Re-
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Tud.Cas.R.P. Tudor's Leading Cases on Real Prop-
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Tur. Turner & Russell's English Chancery Reports.
Turn. Turner's Reports, vols. 99-101 Kentucky ;—
Turner's Reports, vols. 35, 48 Arkansas.
Turn.Angio Sax. Turner, History of the Anglo Sax-
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Tyler, Steph.Pl. Tyler's Edition of Stephen on Prin-
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Tyng. Tyng's Reports, vols. 2-17 Massachusetts.
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Tytler, Mil.Law. Tytler on Military Law and Courts-
Martial.
1874

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VA.L.REG.N.S.
U
U. Utah ;—Utah ; Reports.
U.B. Upper Bench.
U.B.Pr. Upper Bench Precedents tempore Car. I.
U.C. Upper Canada.
U.C.App. Upper Canada Appeals.
U.C.C.P. Upper Canada Common Pleas Reports.
U.C.Ch. Upper Canada Chancery Reports.
U.C.Cham. Upper Canada Chamber Reports.
U.C.E. & A. Upper Canada Error and Appeal Reports.
U.C.J ur. Upper Canada Jurist.
U.C.K.B. (or U.C.O.S.). Upper Canada King's Bench
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U.C.Pr. (or P.R.). Upper Canada Practice Reports.
U.C.Q.B. Upper Canada Queen's Bench Reports.
U.C.Q.B.O.S. (or U.C.O.S.). Upper Canada Queen's
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U.C.R. Queen's Bench Reports, Ontario.
U.C.Rep. Upper Canada Reports.
U.Chi.L.Rev. University of Chicago Law Review.
U.Cin.L.Rev. University of Cincinnati Law Review.
U.Detroit L.J. University of Detroit Law Journal.
U.K. United Kingdom.
U.Kan.City L.Rev. University of Kansas City Law
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U.Mo.B., Law Ser. University of Missouri Bulletin,
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U.Newark L.Rev. University of Newark Law Review.
U. of Pitts.L.Rev. University of Pittsburgh Law Re-
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U.Pa.L.Rev. University of Pennsylvania Law Re-
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U.S.Ap. (or U.S.App.). United States Appeals Reports.
U.S.App.D.C. United States Court of Appeals for the
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U..S.Aviation Rep. Aviation Reports, U. S.
U.S.C. United States Code.
U.S.C.A. United States Code Annotated.
U.S.C.C. United States Circuit Court ;—United States
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U.S.C.S. United States Civil Service Commission.
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U.S.Law Mag. United States Law Magazine, N. Y.
U.S.Month.Law Mag. United States Monthly Law
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U.S.Pat.Q. U. S. Patent Quarterly.
U.S.R. United States Supreme Court Reports.
U.S.R.S. United States Revised Statutes.
U.S.Reg. United States Register, Philadelphia.
U.S.Rev.St. United States Revised Statutes.
U.S.S.G.Rep. United States Supreme Court Reports.
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V.N. Van Ness' Prize Cases.
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V.S. Vermont Statutes.
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Va.L.Reg.N.S. Virginia Law Register, New Series.
1875

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W. & L.Dig. Wood & Long's Digest, Illinois.
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WASH. & LEE L.REV.
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West t.H. West's English Chancery Reports tekmpore-
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Webb, A'B. & W. Webb, A'Beckett, & Williams' Vic-
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Webb, A'B. & W.Eq. Webb, A'Beckett, & Williams'
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Webb, A'B. & W.I.P. & M. Webb, A'Beckett, & Wil-
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Webst. I nt.Dict. Webster's International Dictionary.
Webster in Sen.Doc. Webster in Senate Documents.
Wed g w .0 ct.E n g.Ety mot° gy. Wedgwood's Dictionary
of English Etymology.
Week.Jur. Weekly Jurist, Ill.
Week.L.Rec. Weekly Law Record.
Week.L.Rev. Weekly Law Review, San Francisco.
Week.Law & Bk. Bull. Weekly Law & Bank Bulletin.
Week.Reptr. Weekly Reporter, London ;—Weekly Re-
porter, Bengal.
Week.Trans.Rep. (or Week.Trans.Repts.). Weekly
Transcript Reports, N. Y.
1878

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WILL., WOLL. & HODG.
Wh. Wheaton's United States Supreme Court Re-
ports ;—Wharton's Pennsylvania Reports ;-
Wheeler's New York Criminal Reports.
Wh.Cr.Cas. Wheeler's New York Criminal Cases.
Wh. & T.L.C. White & Tudor's Leading Cases in
Equity.
Whar. Wharton's Pennsylvania Reports.
Whar.Dig. Wharton's Digest, Pennsylvania.
Whar.St.Tr. Wharton's State Trials, United States.
Whart. Wharton.
Whart. (Pa.). Wharton's Pennsylvania Reports.
Whart.Ag. Wharton on Agency.
Whart.Am.Cr.Law (or Whart.Crim.Law). Wharton's
American Criminal Law.
Whart.Confliaws. Wharton's Conflict of Laws.
Whart.Cr.Ev. Wharton on Criminal Evidence.
Whart.Cf.Law (or Whart.Crim.Law). Wharton's
American Criminal Law.
Whart.Cr.PI. & Prac. Wharton's Criminal Pleading &
Practice.
Whart.Ev. Wharton on Evidence in Civil Issues.
Whart.Hom. (or Whart.Homicide). Wharton's Law of
Homicide.
Whart.Law Diet. Wharton's Law Dictionary, or
Law Lexicon.
Whart.Law Lexicon. Wharton's Law Dictionary (or
Law Lexicon).
Whart.Lex. Wharton's Law Lexicon.
Whart.Neg. Wharton on Negligence.
Whart.St.Tr. (or Whart.State Tr.). Wharton's State
Trials, U. S.
Whart. & S.Med.Jur. Wharton & StilkFs Medical Ju-
risprudence.
Wheat. Wheaton's United States Supreme Court Re-
ports.
Wheat.EI.1 nt.Law. Wheaton's Elements of Interna-
tional Law.
Wheat.Hist.Law Nat. Wheaton's History of the Law
of Nations.
Wheat.Int.Law. Wheaton's International Law.
Wheel. Wheeler's New York Criminal Cases ;—Whee-
lock's Reports, vols. 32-37 Texas.
Wheel.Br.Cas. Wheeling Bridge Case.
Wheel.Cr.C. Wheeler's New York Criminal Cases.
Wheel.Cr.Rec. Wheeler's Criminal Recorder, New
York, vol. 1 Wheeler's Criminal Cases.
Wheeler, Cr.Cas. Wheeler's New York Criminal
Cases.
Whishaw. Whishaw's Law Dictionary.
Whit.P .at.Cas. Whitman's Patent Cases, United
States.
Whitak.Liens. Whitaker on Liens.
White. White's Reports, vols. 10-15 West Virginia ;-
White's Reports, vols. 30-40 Texas Court of Ap-
peals ,—White, Scotch Justiciary Reports.
White, Coll. White's New Collection of the Laws,
etc., of Great Britain, France and Spain.
White, New Recop. (or Nov.Recop.). See White, Re-
cop.
White, Recop. White, New Recopilacion. A New Col-
lection of Laws and Local Ordinances of Great
Britain, France, and Spain, Relating to the Con-
cessions of Land in Their Respective Colonies,
with the Laws of Mexico and Texas on the Same
Subjects.
White's An n.Pen.Code. White's Annotated Penal
Code, Tex.
White & T.L.Cas. (or White & T.Lead Cas.Eq.). White
and Tudor's Leading Cases in Equity.
White & W. White & Willson's Reports, vol. 142 Tex-
as Civil Appeals.
White & W.Civ.Cas.Ct.App. White & Willson's Civil
Cases Court of Appeals, Tex.
Whitm.Lib.Cas. Whitman's Massachusetts Libel Cas-
es.
Whitm.Pat.Cas. Whitman's Patent Cases.
Whitm.Pat.Law Rev. Whitman's Patent Law Review,
Washington, D. C.
Whitney. Whitney's Land Laws, Tennessee.
Whitt. Whittelsey's Reports, vols. 31-41 Missouri.
Whitt.Co. Whittaker's Codes, Ohio.
Wig.Wills. Wigram on Wills.
Wight. (or Wightw.). Wightwick's English Exchequer
Reports.
Wight EI.Cas. Wight's Election Cases (Scotch).
Wi I. Williams (see Will.) ;—Wilson (see Wils.).
Wilcox. Wilcox's Reports, vol. 10 Ohio ;—Wilcox,
Pennsylvania.
Wilcox Cond. Wilcox, Condensed Ohio Reports.
Wildm.Int.Law. Wildman's International Law.
Wilk. Wilkinson's Texas Court of Appeals and Civil
Appeals ;—Wilkinson's Reports, Australia.
Wilk. & Ow. (or Wilk. & Pat. or Wilk. & Mur.). Wil-
kinson, Owen, Paterson & Murray's New South
Wales Reports.
Will. Willes' English Common Pleas Reports ;—Will-
son's Reports, vols. 29-30 Texas Appeals, also
vols. 1, 2 Texas Civil Appeals ;—William, as 1
Will. IV. See, also, Williams.
Will.Ann.Reg. Williams' Annual Register, New York.
Will.-Bund St.Tr. Willis-Bund's Cases from State
Trials.
Will.Eq.Jur. Willard's Equity Jurisprudence.
Will.Mass. Williams' Reports, vol. 1 Massachusetts.
Peere-Williams' English Chancery Reports.
Will.Saund. Williams' Notes to Saunders' Reports.
Will.Vt. Williams' Reports, vols. 27-29 Vermont.
Will., Woll. & Day . Willmore, Wollaston & Davison'a
English Queen's Bench Reports.
Will., Woll. & Hodg. • Willmore, Wollaston & Hodges,
English Queen's Bench Reports.
1879

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WILLC.CONST.
Wilic.Const. Willcock, The Office of Constable.
Willcock, Mun.Gorp. Willcock's Municipal Corpora-
tion.
Wilies. Willes' English King's Bench and Common
Pleas Reports.
Williams. Peere-Williams' English Chancery Reports ;
--Williams' Reports, vols. 27-29 Vermont :—Wil-
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Reports, vols. 10-12 Utah.
Williams, Common. Williams on Rights of Common.
Williams, Ex'rs. Williams on Executors.
Williams, Ex'rs, R. & T.Ed. Williams on Executors,
Randolph and Talcott Edition.
Williams P. Peere-Williams' English Chancery Re-
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Williams, Pers.Prop. Williams on Personal Property.
Williams, Real Prop. Williams on Real Property.
Williams, Saund. Williams' Notes to Saunders' Re-
ports.
Williams, Sets. Williams on Seisin.
Williams & B.Adm.Jur. Williams & Bruce on Ad-
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Willis, Trustees. Willis on Trustees.
Wilim. W. & D. Willmore, Wollaston & Davison's Eng-
lish Queen's Bench Reports.
Willm.W. & H. Willmore, Wollaston & Hodges' Eng-
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Wills, Cir.Ev. (or Wills, Girc.Ev.). Wills on Circum-
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Willson. Willson's Reports, vols. 29-30 Texas Ap-
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Civil Cases.
Willson, Civ.Cas.Ct.App. Willson's Civil Cases Court
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Willson, Tex.Cr.Law. Willson's Revised Penal Code,
Code of Criminal Procedure, and Penal Laws of
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Wm. Wilmot's Notes of Opinions, English King's
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Wilm.0p. (or Judg.). Wilmot's Notes of Opinions.
Wils. Wilson's English Common Pleas Reports.
Wils. (Ind.). Wilson's Indiana Superior Court Re-
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Wils.C.P. Wilson's Common Pleas, Eng.
Wils.Ch. Wilson's English Chancery Reports.
Wils.Ent. Wilson's Entries and Pleadings (same as
vol. 3 Lord Raymond).
Wils.Exch. Wilson's English Exchequer Reports.
Wils.I nd.Gloss. Wilson, Glossary of Indian Terms.
Wils.K.B. Sergeant Wilson's English King's Bench
Reports.
Wils.P.C. Wilson's Privy Council, Eng.
Wils. & Court. Wilson & Courtenay's Scotch Appeals,
Cases (see Wilson & Shaw).
Wils. & S. (or Wils. & Sh.). Wilson & Shaw's Scotch
Appeals Cases (Shaw, Wilson & Courtenay).
Wilson. Wilson's English Common Pleas Reports ;-
Wilson's English Chancery Reports ;—Wilson's
English Exchequer Equity Reports ;—Wilson's In-
diana Superior Court Reports ;—Wilson's Reports,
vols. 1, 3 Oregon ;—Wilson's Reports, vols. 48-59
Minnesota.
Wilson's Rev. & Ann.St. Wilson's Revised and Anno-
tated Statutes, Okl.
Win. Winston's Law Reports, North Carolina ;-
Winch's English Common Pleas Reports.
Win.Eq. Winston's Equity Reports, North Carolina.
Winch. Winch's English Common Pleas Reports ;—
Winch's Entries.
Winfield, Words & Phrases. Winfield's Adjudged
Words and Phrases, with Notes.
Wing. (or Wing.Max.). Wingate's Maxims.
Wins.Eq. Winston's Equity Reports, North Carolina.
Winst. (or Winst.Eq.). Winston's Law or Equity Re-
ports, North Carolina.
Wis. Wisconsin;—Wisconsin Reports.
Wis.Bar Assn. Wisconsin State Bar Association.
Wis.L.N. (or Wis.Leg.N.). Wisconsin Legal News,
Milwaukee.
Wis.L.Rev. Wisconsin Law Review.
Wis.S.B.A.Bull. Wisconsin State Bar Association Bul-
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With.Gorp.Cas. Withrow's American Corporation
Cases.
Withrow. Withrow's Reports, vols. 9-21 Iowa.
Witthaus & Becker's Med.Jur. Witthaus and Becker's
Medical Jurisprudence.
Wkly.Dig. Weekly Digest, N.Y.
Wkly.Law Bul. Weekly Law Bulletin, Ohio.
Wkly.Law Gaz. Weekly Law Gazette, Ohio.
Wkly.Notes Cas. (Pa.). Weekly Notes of Cases, Phila-
delphia, Pennsylvania.
Wkly.Rep. Weekly Reporter, London, Eng.
Wm. William, as 9 Wm. III.
Wm.BI. William Blackstone's English King's Bench
Reports.
Wm.Rob. (or Wm.Rob.Adm.). William Robinson's
English Admiralty Reports.
Wm. & Mary. William and Mary, as 2 Wm. & Mary,
c. 1.
Wms. Williams (see Will.).
Wms.Ann.Reg. Williams' Annual Register, New York.
Wms.Ex'rs. Williams on Executors.
Wms.M ass. Williams' Reports, vol. 1 Massachusetts.
Wms.Notes. Williams' Notes to Saunders' Reports.
Wms.Peere. Peere-Williams' English Chancery Re-
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Wms.Saund. Williams' Notes to Saunders' Reports.
Wms.Vt. Williams' Reports, vols. 27-29 Vermont.
Woerner, Adm'n. Woerner's Treatise on the American
Law of Administration.
1880

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W1 HE
Wol. Wollaston's English Bail Court Reports
cotes Reports, vol. 7 Delaware Chancery.
Wolf. & B. Wolferstan & Bristow's English Election
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Wolf. & D. Wolferstan & Dew, English.
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Wolff.I nst. (or Wolff.I nst.Nat.). Wolffius, Institutiones
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Reports (Practice Cases).
Women Law.J. Women Lawyers Journal.
Wood. Woods' United States Circuit Court Reports ;
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Wood Cony . Wood on Conveyancing.
Wood Deer. Wood's (Decrees in) Tithe Cases.
Wood H. Hutton's Wood's Decrees in Tithe Cases.
Wood, Ins. Wood on Fire Insurance ;—Wood's In-
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Wood, Inst. Wood's Institutes of English Law.
Wood, I nst.Com.Law. Wood's Institutes of the Com-
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Wood, Landl. & Ten. Wood on Landlord and Tenant.
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Wood, Lim. Wood on Limitation of Actions.
Wood, Mast. & Serv. Wood on Master and Servant.
Wood, N u is. Wood on Nuisances.
Wood, Ry.Law. Wood's Law of Railroads.
Wood Ti.Cas. Wood's Tithe Cases.
Wood's Civ.Law. Wood's Institutes of the Civil Law
of England.
Wood's Dig. Wood's Digest of Laws, Cal.
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Wood diect. Wooddeson's Lectures on the Laws of
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Woodf.Cel.Tr. Woodfall's Celebrated Trials.
Woodf.Landl. & T. (or Woodf.Landl. & Ten.). Wood-
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Wood m.Cr.Cas. -Woodman's Reports of Thacher's
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Woods (or Woods' C.C.). Woods' United States Cir-
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Woods, St.Frauds. Wood's Treatise on the Statutes of
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Wool. Woolworth's United States Circuit Court Re-
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Wool.C.C. Woolworth's Reports, United States Cir-
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Woolr.Waters. Woolrych's Law of Waters.
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Works, Courts. Works on Courts and Their Jurisdic-
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Works, Pr. Works' Practice, Pleading, and Forms.
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Wr.Ch. (or Wr.Ohlo). Wright's Reports, Ohio.
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Wright (or Wri.). Wright's Reports, vols. 37-50 Penn-
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Wy. Wyoming ;—Wyoming Reports ;—Wythe's Vir-
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Wy. & W. Wyatt & Webb, Vict.
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Wyatt, W. & A'B. Wyatt, Webb & A'Beckett's Re-
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Wyatt, W. & A'B.Eq. Wyatt, Webb & A'Beckett's Eq-
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Wyatt, W. & A'B.I.P. & M. Wyatt, Webb & A'Beckett's
Insolvency, Probate and Matrimonial Reports, Vic-
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Wyatt, W. & A'B.Min. Wyatt, Webb & A'Beckett's
Mining Cases, Victoria.
Wyatt & W.Eq. Wyatt & Webb's Equity Reports, Vic-
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Wyatt & W.I.P. & M. Wyatt & Webb's Insolvency,
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Wyatt & W.Min. Wyatt & Webb's Mining Cases, Vic-
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Wyatt & Webb. Wyatt & Webb's Reports, Victoria.
Wyman. Wyman's Reports, India.
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Wyo. Wyoming ;—Wyoming Reports.
Wyo.L.J. Wyoming Law Journal.
Wyo.T. Wyoming Territory.
Wythe. Wythe's Virginia Chancery Reports.
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Y
Y. Yeates' Pennsylvania Reports.
Y.B. Year Book, English King's Bench, etc.
Y.B.Ed.I. Year Books of Edward I.
Y.B.P.1, Edw.II. Year Books, Part 1, Edward II.
Y.B.S.C. Year Books, Selected Cases, 1.
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Y. & Coil. Younge & Collyer's Chancery, Eng.
Y. & J. Younge & Jervis' English Exchequer Reports.
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Yel. Yelverton's English King's Bench Reports.
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Yerg. Yerger's Tennessee Reports.
Yo. Young (see You.).
York Ass. Clayton's Reports (York Assizes).
York Leg.Rec. (or York). York Legal Record.
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You. & Coll.Ch. Younge & Collyer's English Chancery
Reports.
You. & Goll.Ex. Younge & Collyer's English Exchequer
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Young. Young's Reports, vols. 31-47 Minnesota.
Young Adm. Young's Nova Scotia Admiralty Cases.
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You nge. Younge's English Exchequer Equity Reports.
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Younge & Goll.Ex. Younge & Collyer's English Ex-
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You nge & J. Younge & Jervis, English.
Yuk. Yukon Territory.
z
Zab. Zabriskie's New Jersey Reports.
Zane. Zane's Reports, vols. 4-9 Utah.
Zinn Ca.Tr. Zinn's Select Cases in the Law of Trusts.
1882

Black'sLaw4th

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